The BIVENS decision is an extremely important one with which to be familiar, as it places very strong consequences on law enforcement officers' actions. Most LEOs are not familiar with this decision, although it is taught at almost all academies. Read it and smile (or weep, as the case may be.)

Case Name: BIVENS V. SIX UNKNOWN FED. NARCOTICS AGENTS, 403 U.S. 388 



BIVENS V. SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF NARCOTICS



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



NO. 301.  ARGUED JANUARY 12, 1971-- DECIDED JUNE 21, 1971 



PETITIONER'S COMPLAINT ALLEGED THAT RESPONDENT AGENTS OF THE FEDERAL

BUREAU OF NARCOTICS, ACTING UNDER COLOR OF FEDERAL AUTHORITY, MADE A

WARRANTLESS ENTRY OF HIS APARTMENT, SEARCHED THE APARTMENT, AND

ARRESTED HIM ON NARCOTICS CHARGES.  ALL OF THE ACTS WERE ALLEGED TO

HAVE BEEN DONE WITHOUT PROBABLE CAUSE.  PETITIONER'S SUIT TO RECOVER

DAMAGES FROM THE AGENTS WAS DISMISSED BY THE DISTRICT COURT ON THE

ALTERNATIVE GROUNDS (1) THAT IT FAILED TO STATE A FEDERAL CAUSE OF

ACTION AND (2) THAT RESPONDENTS WERE IMMUNE FROM SUIT BY VIRTUE OF

THEIR OFFICIAL POSITION.  THE COURT OF APPEALS AFFIRMED ON THE FIRST

GROUND ALONE.  HELD: 



1.  PETITIONER'S COMPLAINT STATES A FEDERAL CAUSE OF ACTION UNDER

THE FOURTH AMENDMENT FOR WHICH DAMAGES ARE RECOVERABLE UPON PROOF OF

INJURIES RESULTING FROM THE FEDERAL AGENTS' VIOLATION OF THAT

AMENDMENT.  PP. 390-397. 



2.  THE COURT DOES NOT REACH THE IMMUNITY QUESTION, WHICH WAS NOT

PASSED ON BY THE COURT OF APPEALS.  PP. 397-398. 



409 F.2D 718, REVERSED AND REMANDED. 



BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH DOUGLAS,

STEWART, WHITE, AND MARSHALL, JJ., JOINED.  HARLAN, J., FILED AN

OPINION CONCURRING IN THE JUDGMENT, POST, P. 398.  BURGER, C. J., POST,

P. 411, BLACK, J., POST, P. 427, AND BLACKMUN, J., POST, P. 430, FILED

DISSENTING OPINIONS. 



MR. JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT. 



THE FOURTH AMENDMENT PROVIDES THAT: 



     "THE RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,

HOUSES,



  PAPERS, AND EFFECTS, AGAINST UNREASONABLE SEARCHES AND SEIZURES,



SHALL NOT BE VIOLATED . . . " 



IN BELL V. HOOD, 327 U.S. 678 (1946), WE RESERVED THE QUESTION

WHETHER VIOLATION OF THAT COMMAND BY A FEDERAL AGENT ACTING UNDER COLOR

OF HIS AUTHORITY GIVES RISE TO A CAUSE OF ACTION FOR DAMAGES CONSEQUENT

UPON HIS UNCONSTITUTIONAL CONDUCT.  TODAY WE HOLD THAT IT DOES. 



THIS CASE HAS ITS ORIGIN IN AN ARREST AND SEARCH CARRIED OUT ON THE

MORNING OF NOVEMBER 26, 1965.  PETITIONER'S COMPLAINT ALLEGED THAT ON

THAT DAY RESPONDENTS, AGENTS OF THE FEDERAL BUREAU OF NARCOTICS ACTING

UNDER CLAIM OF FEDERAL AUTHORITY, ENTERED HIS APARTMENT AND ARRESTED

HIM FOR ALLEGED NARCOTICS VIOLATIONS.  THE AGENTS MANACLED PETITIONER

IN FRONT OF HIS WIFE AND CHILDREN, AND THREATENED TO ARREST THE ENTIRE

FAMILY.  THEY SEARCHED THE APARTMENTFROM STEM TO STERN.  THEREAFTER,

PETITIONER WAS TAKEN TO THE FEDERAL COURTHOUSE IN BROOKLYN, WHERE HE

WAS INTERROGATED, AND SUBJECTED TO A VISUAL STRIP SEARCH. 



ON JULY 7, 1967, PETITIONER BROUGHT SUIT IN FEDERAL DISTRICT COURT. 

IN ADDITION TO THE ALLEGATIONS ABOVE, HIS COMPLAINT ASSERTED THAT THE

ARREST AND SEARCH WERE EFFECTED WITHOUT A WARRANT, AND THAT

UNREASONABLE FORCE WAS EMPLOYED IN MAKING THE ARREST; FAIRLY READ, IT

ALLEGES AS WELL THAT THE ARREST WAS MADE WITHOUT PROBABLE CAUSE.  /1/

PETITIONER CLAIMED TO HAVE SUFFERED GREAT HUMILIATION, EMBARRASSMENT,

AND MENTAL SUFFERING AS A RESULT OF THE AGENTS' UNLAWFUL CONDUCT, AND

SOUGHT $15,000 DAMAGES FROM EACH OF THEM.  THE DISTRICT COURT, ON

RESPONDENTS' MOTION, DISMISSED THE COMPLAINT ON THE GROUND, INTER ALIA,

THAT IT FAILED TO STATE A CAUSE OF ACTION.  /2/  276 F.SUPP.  12 (EDNY

1967).  THE COURT OF APPEALS, ONE JUDGE CONCURRING SPECIALLY, /3/

AFFIRMED ON THAT BASIS.  409 F.2D 718 (CA2 1969).  WE GRANTED

CERTIORARI.  399 U.S. 905 (1970).  WE REVERSE. 



        I 



RESPONDENTS DO NOT ARGUE THAT PETITIONER SHOULD BE ENTIRELY WITHOUT

REMEDY FOR AN UNCONSTITUTIONAL INVASION OF HIS RIGHTS BY FEDERAL

AGENTS.  IN RESPONDENTS' VIEW, HOWEVER, THE RIGHTS THAT PETITIONER

ASSERTS-- PRIMARILY RIGHTS OF PRIVACY-- ARE CREATIONS OF STATE AND NOT

OF FEDERAL LAW.  ACCORDINGLY, THEY ARGUE, PETITIONER MAY OBTAIN MONEY

DAMAGES TO REDRESS INVASION OF THESE RIGHTS ONLY BY AN ACTION IN TORT,

UNDER STATE LAW, IN THE STATE COURTS.  IN THIS SCHEME THE FOURTH

AMENDMENT WOULD SERVE MERELY TO LIMIT THE EXTENT TO WHICH THE AGENTS

COULD DEFEND THE STATE LAW TORT SUIT BY ASSERTING THAT THEIR ACTIONS

WERE A VALID EXERCISE OF FEDERAL POWER:  IF THE AGENTS WERE SHOWN TO

HAVE VIOLATED THE FOURTH AMENDMENT, SUCH A DEFENSE WOULD BE LOST TO

THEM AND THEY WOULD STAND BEFORE THE STATE LAW MERELY AS PRIVATE

INDIVIDUALS.  CANDIDLY ADMITTING THAT IT IS THE POLICY OF THE

DEPARTMENT OF JUSTICE TO REMOVE ALL SUCH SUITS FROM THE STATE TO THE

FEDERAL COURTS FOR DECISION, /4/  RESPONDENTS NEVERTHELESS URGE THAT WE

UPHOLD DISMISSAL OF PETITIONER'S COMPLAINT IN FEDERAL COURT, AND REMIT

HIM TO FILING AN ACTION IN THE STATE COURTS IN ORDER THAT THE CASE MAY

PROPERLY BE REMOVED TO THE FEDERAL COURT FOR DECISION ON THE BASIS OF

STATE LAW. 



WE THINK THAT RESPONDENTS' THESIS RESTS UPON AN UNDULY RESTRICTIVE

VIEW OF THE FOURTH AMENDMENT'S PROTECTION AGAINST UNREASONABLE SEARCHES

AND SEIZURES BY FEDERAL AGENTS, A VIEW THAT HAS CONSISTENTLY BEEN

REJECTED BY THIS COURT.  RESPONDENTS SEEK TO TREAT THE RELATIONSHIP

BETWEEN A CITIZEN AND A FEDERAL AGENT UNCONSTITUTIONALLY EXERCISING HIS

AUTHORITY AS NO DIFFERENT FROM THE RELATIONSHIP BETWEEN TWO PRIVATE

CITIZENS.  IN SO DOING, THEY IGNORE THE FACT THAT POWER, ONCE GRANTED,

DOES NOT DISAPPEAR LIKE A MAGIC GIFT WHEN IT IS WRONGFULLY USED.  AN

AGENT ACTING-- ALBEIT UNCONSTITUTIONALLY-- IN THE NAME OF THE UNITED

STATES POSSESSES A FAR GREATER CAPACITY FOR HARM THAN AN INDIVIDUAL

TRESPASSER EXERCISING NO AUTHORITY OTHER THAN HIS OWN.  CF. AMOS V.

UNITED STATES, 255 U.S. 313, 317 (1921); UNITED STATES V. CLASSIC, 313

U.S. 299, 326 (1941).  ACCORDINGLY, AS OUR CASES MAKE CLEAR, THE FOURTH

AMENDMENT OPERATES AS A LIMITATION UPON THE EXERCISE OF FEDERAL POWER

REGARDLESS OF WHETHER THE STATE IN WHOSE JURISDICTION THAT POWER IS

EXERCISED WOULD PROHIBIT OR PENALIZE THE IDENTICAL ACT IF ENGAGED IN BY

A PRIVATE CITIZEN.  IT GUARANTEES TO CITIZENS OF THE UNITED STATES THE

ABSOLUTE RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES

CARRIED OUT BY VIRTUE OF FEDERAL AUTHORITY.  AND "WHERE FEDERALLY

PROTECTED RIGHTS HAVE BEEN INVADED, IT HAS BEEN THE RULE FROM THE

BEGINNING THAT COURTS WILL BE ALERT TO ADJUST THEIR REMEDIES SO AS TO

GRANT THE NECESSARY RELIEF."  BELL V. HOOD, 327 U.S.,AT 684 (FOOTNOTE

OMITTED); SEE BEMIS BROS. BAG CO. V. UNITED STATES, 289 U.S. 28, 36

(1933) (CARDOZO, J.); THE WESTERN MAID, 257 U.S. 419, 433 (1922)

(HOLMES, J.). 



FIRST.  OUR CASES HAVE LONG SINCE REJECTED THE NOTION THAT THE

FOURTH AMENDMENT PROSCRIBES ONLY SUCH CONDUCT AS WOULD, IF ENGAGED IN

BY PRIVATE PERSONS, BE CONDEMNED BY STATE LAW.  THUS IN GAMBINO V.

UNITED STATES, 275 U.S. 310 (1927), PETITIONERS WERE CONVICTED OF

CONSPIRACY TO VIOLATE THE NATIONAL PROHIBITION ACT ON THE BASIS OF

EVIDENCE SEIZED BY STATE POLICE OFFICERS INCIDENT TO PETITIONERS'

ARREST BY THOSE OFFICERS SOLELY FOR THE PURPOSE OF ENFORCING FEDERAL

LAW.  ID., AT 314.  NOTWITHSTANDING THE LACK OF PROBABLE CAUSE FOR THE

ARREST, ID., AT 313, IT WOULD HAVE BEEN PERMISSIBLE UNDER STATE LAW IF

EFFECTED BY PRIVATE INDIVIDUALS.  /5/  IT APPEARS, MOREOVER, THAT THE

OFFICERS WERE UNDER DIRECTION FROM THE GOVERNOR TO AID IN THE

ENFORCEMENT OF FEDERAL LAW.  ID., AT 315-317.  ACCORDINGLY, IF THE

FOURTH AMENDMENT REACHED ONLY TO CONDUCT IMPERMISSIBLE UNDER THE LAW OF

THE STATE, THE AMENDMENT WOULD HAVE HAD NO APPLICATION TO THE CASE. 

YET THIS COURT HELD THE FOURTH AMENDMENT APPLICABLE AND REVERSED

PETITIONERS' CONVICTIONS AS HAVING BEEN BASED UPON EVIDENCE OBTAINED

THROUGH AN UNCONSTITUTIONAL SEARCH AND SEIZURE.  SIMILARLY, IN BYARS V.

UNITED STATES, 273 U.S. 28 (1927), THE PETITIONER WAS CONVICTED ON THE

BASIS OF EVIDENCE SEIZED UNDER A WARRANT ISSUED, WITHOUT PROBABLE CAUSE

UNDER THE FOURTH AMENDMENT, BY A STATE COURT JUDGE FOR A STATE LAW

OFFENSE.  AT THE INVITATION OF STATE LAW ENFORCEMENT OFFICERS, A

FEDERAL PROHIBITION AGENT PARTICIPATED IN THE SEARCH.  THIS COURT

EXPLICITLY REFUSED TO INQUIRE WHETHER THE WARRANT WAS "GOOD UNDER THE

STATE LAW . . . SINCE IN NO EVENT COULD IT CONSTITUTE THE BASIS FOR A

FEDERAL SEARCH AND SEIZURE."  ID., AT 29.  /6/  AND OUR RECENT

DECISIONS REGARDING ELECTRONIC SURVEILLANCE HAVE MADE IT CLEAR BEYOND

PERADVENTURE THAT THE FOURTH AMENDMENT IS NOT TIED TO THE NICETIES OF

LOCAL TRESPASS LAWS.  KATZ V. UNITED STATES, 389 U.S. 347 (1967);

BERGER V. NEW YORK, 388 U.S. 41 (1967); SILVERMAN V. UNITED STATES, 365

U.S. 505, 511 (1961).  IN LIGHT OF THESE CASES, RESPONDENTS' ARGUMENT

THAT THE FOURTH AMENDMENT SERVES ONLY AS A LIMITATION ON FEDERAL

DEFENSES TO A STATE LAW CLAIM, AND NOT AS AN INDEPENDENT LIMITATION

UPON THE EXERCISE OF FEDERAL POWER, MUST BE REJECTED. 



SECOND.  THE INTERESTS PROTECTED BY STATE LAWS REGULATING TRESPASS

AND THE INVASION OF PRIVACY, AND THOSE PROTECTED BY THE FOURTH

AMENDMENT'S GUARANTEE AGAINST UNREASONABLE SEARCHES AND SEIZURES, MAY

BE INCONSISTENT OR EVEN HOSTILE.  THUS, WE MAY BAR THE DOOR AGAINST AN

UNWELCOME PRIVATE INTRUDER, OR CALL THE POLICE IF HE PERSISTS IN

SEEKING ENTRANCE.  THE AVAILABILITY OF SUCH ALTERNATIVE MEANS FOR THE

PROTECTION OF PRIVACY MAY LEAD THE STATE TO RESTRICT IMPOSITION OF

LIABILITY FOR ANY CONSEQUENT TRESPASS.  A PRIVATE CITIZEN, ASSERTING NO

AUTHORITY OTHER THAN HIS OWN, WILL NOT NORMALLY BE LIABLE IN TRESPASS

IF HE DEMANDS, AND IS GRANTED, ADMISSION TO ANOTHER'S HOUSE.  SEE W.

PROSSER, THE LAW OF TORTS SEC. 18, PP. 109-110 (3D ED. 1964); 1

F.HARPER & F.JAMES, THE LAW OF TORTS 1.11 (1956).  BUT ONE WHO DEMANDS

ADMISSION UNDER A CLAIM OF FEDERAL AUTHORITY STANDS IN A FAR DIFFERENT

POSITION.  CF. AMOS V. UNITED STATES, 255 U.S. 313, 317 (1921).  THE

MERE INVOCATION OF FEDERAL POWER BY A FEDERAL LAW ENFORCEMENT OFFICIAL

WILL NORMALLY RENDER FUTILE ANY ATTEMPT TO RESIST AN UNLAWFUL ENTRY OR

ARREST BY RESORT TO THE LOCAL POLICE; AND A CLAIM OF AUTHORITY TO ENTER

IS LIKELY TO UNLOCK THE DOOR AS WELL.  SEE WEEKS V. UNITED STATES, 232

U.S. 383, 386 (1914); AMOS V. UNITED STATES, SUPRA.  /7/  "IN SUCH

CASES THERE IS NO SAFETY FOR THE CITIZEN, EXCEPT IN THE PROTECTION OF

THE JUDICIAL TRIBUNALS, FOR RIGHTS WHICH HAVE BEEN INVADED BY THE

OFFICERS OF THE GOVERNMENT, PROFESSING TO ACT IN ITS NAME.  THERE

REMAINS TO HIM BUT THE ALTERNATIVE OF RESISTANCE, WHICH MAY AMOUNT TO

CRIME."  UNITED STATES V. LEE, 106 U.S. 196, 219 (1882).  /8/  NOR IS

IT ADEQUATE TO ANSWER THAT STATE LAW MAY TAKE INTO ACCOUNT THE

DIFFERENT STATUS OF ONE CLOTHED WITH THE AUTHORITY OF THE FEDERAL

GOVERNMENT.  FOR JUST AS STATE LAW MAY NOT AUTHORIZE FEDERAL AGENTS TO

VIOLATE THE FOURTH AMENDMENT, BYARS V. UNITED STATES, SUPRA; WEEKS V.

UNITED STATES, SUPRA; IN RE AYERS, 123 U.S. 443, 507 (1887), NEITHER

MAY STATE LAW UNDERTAKE TO LIMIT THE EXTENT TO WHICH FEDERAL AUTHORITY

CAN BE EXERCISED.  IN RE NEAGLE, 135 U.S. 1 (1890).  THE INEVITABLE

CONSEQUENCE OF THIS DUAL LIMITATION ON STATE POWER IS THAT THE FEDERAL

QUESTION BECOMES NOT MERELY A POSSIBLE DEFENSE TO THE STATE LAW ACTION,

BUT AN INDEPENDENT CLAIM BOTH NECESSARY AND SUFFICIENT TO MAKE OUT THE

PLAINTIFF'S CAUSE OF ACTION.  CF. BOILERMAKERS V. HARDEMAN, 401 U.S.

233, 241 (1971). 



THIRD.  THAT DAMAGES MAY BE OBTAINED FOR INJURIES CONSEQUENT UPON A

VIOLATION OF THE FOURTH AMENDMENT BY FEDERAL OFFICIALS SHOULD HARDLY

SEEM A SURPRISING PROPOSITION.  HISTORICALLY, DAMAGES HAVE BEEN

REGARDED AS THE ORDINARY REMEDY FOR AN INVASION OF PERSONAL INTERESTS

IN LIBERTY.  SEE NIXON V. CONDON, 286 U.S. 73 (1932); NIXON V. HERNDON,

273 U.S. 536, 540 (1927; SWAFFORD V. TEMPLETON, 185 U.S. 487 (1902);

WILEY V. SINKLER, 179 U.S. 58 (1900); L. LANDYNSKI, SEARCH AND SEIZURE

AND THE SUPREME COURT 28 ET SEQ. (1966); N. LASSON, HISTORY AND

DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION

43 ET SEQ. (1937); KATZ, THE JURISPRUDENCE OF REMEDIES : CONSTITUTIONAL

LEGALITY AND THE LAW OF TORTS IN BELL V. HOOD, 117 U.PA.L.REV.  1, 8-33

(1968); CF. WEST V. CABELL, 153 U.S. 78 (1894); LAMMON V. FEUSIER, 111

U.S. 17 (1884).  OF COURSE, THE FOURTH AMENDMENT DOES NOT IN SO MANY

WORDS PROVIDE FOR ITS ENFORCEMENT BY AN AWARD OF MONEY DAMAGES FOR THE

CONSEQUENCES OF ITS VIOLATION.  BUT "IT IS . . . WELL SETTLED THAT

WHERE LEGAL RIGHTS HAVE BEEN INVADED, AND A FEDERAL STATUTE PROVIDES

FOR A GENERAL RIGHT TO SUE FOR SUCH INVASION, FEDERAL COURTS MAY USE

ANY AVAILABLE REMEDY TO MAKE GOOD THE WRONG DONE."  BELL V. HOOD, 327

U.S.,AT 684 (FOOTNOTE OMITTED).  THE PRESENT CASE INVOLVES NO SPECIAL

FACTORS COUNSELLING HESITATION IN THE ABSENCE OF AFFIRMATIVE ACTION BY

CONGRESS.  WE ARE NOT DEALING WITH A QUESTION OF "FEDERAL FISCAL

POLICY," AS IN UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 311

(1947).  IN THAT CASE WE REFUSED TO INFER FROM THE GOVERNMENT-SOLDIER

RELATIONSHIP THAT THE UNITED STATES COULD RECOVER DAMAGES FROM ONE WHO

NEGLIGENTLY INJURED A SOLDIER AND THEREBY CAUSED THE GOVERNMENT TO PAY

HIS MEDICAL EXPENSES AND LOSE HIS SERVICES DURING THE COURSE OF HIS

HOSPITALIZATION.  NOTING THAT CONGRESS WAS NORMALLY QUITE SOLICITOUS

WHERE THE FEDERAL PURSE WAS INVOLVED, WE POINTED OUT THAT "THE UNITED

STATES (WAS) THE PARTY PLAINTIFF TO THE SUIT.  AND THE UNITED STATES

HAS POWER AT ANY TIME TO CREATE THE LIABILITY."  ID., AT 316; SEE

UNITED STATES V. GILMAN, 347 U.S. 507 (1954).  NOR ARE WE ASKED IN THIS

CASE TO IMPOSE LIABILITY UPON A CONGRESSIONAL EMPLOYEE FOR ACTIONS

CONTRARY TO NO CONSTITUTIONAL PROHIBITION, BUT MERELY SAID TO BE IN

EXCESS OF THE AUTHORITY DELEGATED TO HIM BY THE CONGRESS.  WHEELDIN V.

WHEELER, 373 U.S. 647 (1963).  FINALLY, WE CANNOT ACCEPT RESPONDENTS'

FORMULATION OF THE QUESTION AS WHETHER THE AVAILABILITY OF MONEY

DAMAGES IS NECESSARY TO ENFORCE THE FOURTH AMENDMENT.  FOR WE HAVE HERE

NO EXPLICIT CONGRESSIONAL DECLARATION THAT PERSONS INJURED BYA FEDERAL

OFFICER'S VIOLATION OF THE FOURTH AMENDMENT MAY NOT RECOVER MONEY

DAMAGES FROM THE AGENTS, BUT MUST INSTEAD BE REMITTED TO ANOTHER

REMEDY, EQUALLY EFFECTIVE IN THE VIEW OF CONGRESS.  THE QUESTION IS

MERELY WHETHER PETITIONER, IF HE CAN DEMONSTRATE AN INJURY CONSEQUENT

UPON THE VIOLATION BY FEDERAL AGENTS OF HIS FOURTH AMENDMENT RIGHTS, IS

ENTITLED TO REDRESS HIS INJURY THROUGH A PARTICULAR REMEDIAL MECHANISM

NORMALLY AVAILABLE IN THE FEDERAL COURTS.  CF. J. I. CASE CO. V. BORAK,

377 U.S. 426, 433 (1964); JACOBS V. UNITED STATES, 290 U.S. 13, 16

(1933).  "THE VERY ESSENCE OF CIVIL LIBERTY CERTAINLY CONSISTS IN THE

RIGHT OF EVERY INDIVIDUAL TO CLAIM THE PROTECTION OF THE LAWS, WHENEVER

HE RECEIVES AN INJURY."  MARBURY V. MADISON, 1 CRANCH 137, 163 (1803). 

HAVING CONCLUDED THAT PETITIONER'S COMPLAINT STATES A CAUSE OF ACTION

UNDER THE FOURTH AMENDMENT, SUPRA, AT 390-395, WE HOLD THAT PETITIONER

IS ENTITLED TO RECOVER MONEY DAMAGES FOR ANY INJURIES HE HAS SUFFERED

AS A RESULT OF THE AGENTS' VIOLATION OF THE AMENDMENT.              II 



IN ADDITION TO HOLDING THAT PETITIONER'S COMPLAINT HAD FAILED TO

STATE FACTS MAKING OUT A CAUSE OF ACTION, THE DISTRICT COURT RULED THAT

IN ANY EVENT RESPONDENTS WERE IMMUNE FROM LIABILITY BY VIRTUE OF THEIR

OFFICIAL POSITION.  276 F.SUPP.,AT 15.  THIS QUESTION WAS NOT PASSED

UPON BY THE COURT OF APPEALS, AND ACCORDINGLY WE DO NOT CONSIDER IT

HERE.  THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE CASE IS

REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. 

  SO ORDERED. 



/1/  PETITIONER'S COMPLAINT DOES NOT EXPLICITLY STATE THAT THE

AGENTS HAD NO PROBABLE CAUSE FOR HIS ARREST, BUT IT DOES ALLEGE THAT

THE ARREST WAS "DONE UNLAWFULLY, UNREASONABLY AND CONTRARY TO LAW." 

APP. 2.  PETITIONER'S AFFIDAVIT IN SUPPORT OF HIS MOTION FOR SUMMARY

JUDGMENT SWEARS THAT THE SEARCH WAS "WITHOUT CAUSE, CONSENT OR

WARRANT," AND THAT THE ARREST WAS "WITHOUT CAUSE, REASON OR WARRANT." 

APP. 28. 



/2/  THE AGENTS WERE NOT NAMED IN PETITIONER'S COMPLAINT, AND THE

DISTRICT COURT ORDERED THAT THE COMPLAINT BE SERVED UPON "THOSE FEDERAL

AGENTS WHO IT IS INDICATED BY THE RECORDS OF THE UNITED STATES ATTORNEY

PARTICIPATED IN THE NOVEMBER 25, 1965, ARREST OF THE (PETITIONER)." 

APP. 3.  FIVE AGENTS WERE ULTIMATELY SERVED. 



/3/  JUDGE WATERMAN, CONCURRING, EXPRESSED THE THOUGHT THAT "THE

FEDERAL COURTS CAN . . . ENTERTAIN THIS CAUSE OF ACTION IRRESPECTIVE OF

WHETHER A STATUTE EXISTS SPECIFICALLY AUTHORIZING A FEDERAL SUIT

AGAINST FEDERAL OFFICERS FOR DAMAGES" FOR ACTS SUCH AS THOSE ALLEGED. 

IN HIS VIEW, HOWEVER, THE CRITICAL POINT WAS RECOGNITION THAT SOME

CAUSE OF ACTION EXISTED, ALBEIT A STATE-CREATED ONE, AND IN CONSEQUENCE

HE WAS WILLING "AS OF NOW" TO CONCUR IN THE HOLDING OF THE COURT OF

APPEALS.  409 F.2D, AT 726. 



/4/  "(SINCE IT IS THE PRESENT POLICY OF THE DEPARTMENT OF JUSTICE

TO REMOVE TO THE FEDERAL COURTS ALL SUITS IN STATE COURTS AGAINST

FEDERAL OFFICERS FOR TRESPASS OR FALSE IMPRISONMENT, A CLAIM FOR

RELIEF, WHETHER BASED ON STATE COMMON LAW OR DIRECTLY ON THE FOURTH

AMENDMENT, WILL ULTIMATELY BE HEARD IN A FEDERAL COURT."  BRIEF FOR

RESPONDENTS 13 (CITATIONS OMITTED); SEE 28 U.S.C. 1442(A); WILLINGHAM

V. MORGAN, 395 U.S. 402 (1969).  IN LIGHT OF THIS, IT IS DIFFICULT TO

UNDERSTAND OUR BROTHER BLACKMUN'S COMPLAINT THAT OUR HOLDING TODAY

"OPENS THE DOOR FOR ANOTHER AVALANCHE OF NEW FEDERAL CASES."  POST, AT

430.  IN ESTIMATING THE MAGNITUDE OF ANY SUCH "AVALANCHE," IT IS WORTH

NOTING THAT A SURVEY OF COMPARABLE ACTIONS AGAINST STATE OFFICERS UNDER

42 U.S.C. 1983 FOUND ONLY 53 REPORTED CASES IN 17 YEARS (1951-1967)

THAT SURVIVED A MOTION TO DISMISS.  GINGER & BELL, POLICE MISCONDUCT

LITIGATION-- PLAINTIFF'S REMEDIES, 15 AM.JUR.TRIALS 555, 580-590

(1968).  INCREASING THIS FIGURE BY 900% TO ALLOW FOR INCREASES IN RATE

AND UNREPORTED CASES, EVERY FEDERAL DISTRICT JUDGE COULD EXPECT TO TRY

ONE SUCH CASE EVERY 13 YEARS. 



/5/  NEW YORK AT THAT TIME FOLLOWED THE COMMON-LAW RULE THAT A

PRIVATE PERSON MAY ARREST ANOTHER IF THE LATTER HAS IN FACT COMMITTED A

FELONY, AND THAT IF SUCH IS THE CASE THE PRESENCE OR ABSENCE OF

PROBABLE CAUSE IS IRRELEVANT TO THE LEGALITY OF THE ARREST.  SEE

MCLOUGHLIN V. NEW YORK EDISON CO., 252 N.Y. 202, 169 N.E. 277 (1929);

CF. N.Y. CODE CRIM. PROC. SEC. 183 (1958) FOR CODIFICATION OF THE

RULE.  CONSPIRACY TO COMMIT A FEDERAL CRIME WAS AT THE TIME A FELONY. 

ACT OF MARCH 4, 1909, SEC. 37, 35 STAT. 1096. 



/6/  CONVERSELY, WE HAVE IN SOME INSTANCES REJECTED FOURTH AMENDMENT

CLAIMS DESPITE FACTS DEMONSTRATING THAT FEDERAL AGENTS WERE ACTING IN

VIOLATION OF LOCAL LAW.  MCGUIRE V. UNITED STATES, 273 U.S. 95 (1927)

(TRESPASS AB INITIO); HESTER V. UNITED STATES, 265 U.S. 57 (1924)

("OPEN FIELDS" DOCTRINE); CF. BURDEAU V. MCDOWELL, 256 U.S. 465 (1921)

(POSSESSION OF STOLEN PROPERTY). 



/7/  SIMILARLY, ALTHOUGH THE FOURTH AMENDMENT CONFINES AN OFFICER

EXECUTING A SEARCH WARRANT STRICTLY WITHIN THE BOUNDS SET BY THE

WARRANT, MARRON V. UNITED STATES, 275 U.S. 192, 196 (1927); SEE STANLEY

V. GEORGIA, 394 U.S. 557, 570-572 (1969) (STEWART, J., CONCURRING IN

RESULT), A PRIVATE INDIVIDUAL LAWFULLY IN THE HOME OF ANOTHER WILL NOT

NORMALLY BE LIABLE FOR TRESPASS BEYOND THE BOUNDS OF HIS INVITATION

ABSENT CLEAR NOTICE TO THAT EFFECT.  SEE 1 F.HARPER & F.JAMES, THE LAW

OF TORTS 1.11 (1956). 



/8/  ALTHOUGH NO STATE HAS UNDERTAKEN TO LIMIT THE COMMON-LAW

DOCTRINE THAT ONE MAY USE REASONABLE FORCE TO RESIST AN UNLAWFUL ARREST

BY A PRIVATE PERSON, AT LEAST TWO STATES HAVE OUTLAWED RESISTANCE TO AN

UNLAWFUL ARREST SOUGHT TO BE MADE BY A PERSON KNOWN TO BE AN OFFICER OF

THE LAW.  R.I. GEN. LAWS SEC. 12-7-10 (1969); STATE V. KOONCE, 89

N.J.SUPER.  169, 180-184, 214 A.2D 428, 433-436 (1965). 



MR. JUSTICE HARLAN, CONCURRING IN THE JUDGMENT. 



MY INITIAL VIEW OF THIS CASE WAS THAT THE COURT OF APPEALS WAS

CORRECT IN DISMISSING THE COMPLAINT, BUT FOR REASONS STATED IN THIS

OPINION I AM NOW PERSUADED TO THE CONTRARY.  ACCORDINGLY, I JOIN IN THE

JUDGMENT OF REVERSAL. 



PETITIONER ALLEGED, IN HIS SUIT IN THE DISTRICT COURT FOR THE

EASTERN DISTRICT OF NEW YORK, THAT THE DEFENDANTS, FEDERAL AGENTS

ACTING UNDER COLOR OF FEDERAL LAW, SUBJECTED HIM TO A SEARCH AND

SEIZURE CONTRAVENING THE REQUIREMENTS OF THE FOURTH AMENDMENT.  HE

SOUGHT DAMAGES IN THE AMOUNT OF $15,000 FROM EACH OF THE AGENTS. 

FEDERAL JURISDICTION WAS CLAIMED, INTER ALIA, /1/  UNDER 28 U.S.C.

1331(A) WHICH PROVIDES: 



     "THE DISTRICT COURTS SHALL HAVE ORIGINAL JURISDICTION OF ALL



  CIVIL ACTIONS WHEREIN THE MATTER IN CONTROVERSY EXCEEDS THE SUM



  OR VALUE OF $10,000 EXCLUSIVE OF INTEREST AND COSTS, AND ARISES



UNDER THE CONSTITUTION, LAWS, OR TREATIES OF THE UNITED STATES." 



THE DISTRICT COURT DISMISSED THE COMPLAINT FOR LACK OF FEDERAL

JURISDICTION UNDER 28 U.S.C. 1331(A) AND FAILURE TO STATE A CLAIM FOR

WHICH RELIEF MAY BE GRANTED.  276 F.SUPP 12 (EDNY 1967).  ON APPEAL,

THE COURT OF APPEALS CONCLUDED, ON THE BASIS OF THIS COURT'S DECISION

IN BELL V. HOOD, 327 U.S. 678 (1946), THAT PETITIONER'S CLAIM FOR

DAMAGES DID "(ARISE) UNDER THE CONSTITUTION" WITHIN THE MEANING OF 28

U.S.C. 1331(A); BUT THE DISTRICT COURT'S JUDGMENT WAS AFFIRMED ON THE

GROUND THAT THE COMPLAINT FAILED TO STATE A CLAIM FOR WHICH RELIEF CAN

BE GRANTED.  409 F.2D 718 (CA2 1969). 



IN SO CONCLUDING, THA:  (1) THE FRAMERS OF THE FOURTH AMENDMENT DID

NOT APPEAR TO CONTEMPLATE A "WHOLLY NEW FEDERAL CAUSE OF ACTION FOUNDED

DIRECTLY ON THE FOURTH AMENDMENT," ID., AT 721, AND (2) WHILE THE

FEDERAL COURTS HAD POWER UNDER A GENERAL GRANT OF JURISDICTION TO IMPLY

A FEDERAL REMEDY FOR THE ENFORCEMENT OF A CONSTITUTIONAL RIGHT, THEY

SHOULD DO SO ONLY WHEN THE ABSENCE OF ALTERNATIVE REMEDIES RENDERS THE

CONSTITUTIONAL COMMAND A "MERE 'FORM OF WORDS.'"  ID., AT 723.  THE

GOVERNMENT TAKES ESSENTIALLY THE SAME POSITION HERE.  BRIEF FOR

RESPONDENTS 4-5.  AND TWO MEMBERS OF THE COURT ADD THE CONTENTION THAT

WE LACK THE CONSTITUTIONAL POWER TO ACCORD BIVENS A REMEDY FOR DAMAGES

IN THE ABSENCE OF CONGRESSIONAL ACTION CREATING "A FEDERAL CAUSE OF

ACTION FOR DAMAGES FOR AN UNREASONABLE SEARCH IN VIOLATION OF THE

FOURTH AMENDMENT."  OPINION OF MR. JUSTICE BLACK, POST, AT 427; SEE

ALSO OPINION OF THE CHIEF JUSTICE, POST, AT 418, 422. 



FOR THE REASONS SET FORTH BELOW, I AM OF THE OPINION THAT FEDERAL

COURTS DO HAVE THE POWER TO AWARD DAMAGES FOR VIOLATION OF

"CONSTITUTIONALLY PROTECTED INTERESTS" AND I AGREE WITH THE COURT THAT

A TRADITIONAL JUDICIAL REMEDY SUCH AS DAMAGES IS APPROPRIATE TO THE

VINDICATION OF THE PERSONAL INTERESTS PROTECTED BY THE FOURTH

AMENDMENT. 



        I 



I TURN FIRST TO THE CONTENTION THAT THE CONSTITUTIONAL POWER OF

FEDERAL COURTS TO ACCORD BIVENS DAMAGES FOR HIS CLAIM DEPENDS ON THE

PASSAGE OF A STATUTE CREATING A "FEDERAL CAUSE OF ACTION."  ALTHOUGH

THE POINT IS NOT ENTIRELY FREE OF AMBIGUITY, /2/  I DO NOT UNDERSTAND

EITHER THE GOVERNMENT OR MY DISSENTING BROTHERS TO MAINTAIN THAT

BIVENS' CONTENTION THAT HE IS ENTITLED TO BE FREE FROM THE TYPE OF

OFFICIAL CONDUCT PROHIBITED BY THE FOURTH AMENDMENT DEPENDS ON A

DECISION BY THE STATE IN WHICH HE RESIDES TO ACCORD HIM A REMEDY.  SUCH

A POSITION WOULD BE INCOMPATIBLE WITH THE PRESUMED AVAILABILITY OF

FEDERAL EQUITABLE RELIEF, IF A PROPER SHOWING CAN BE MADE IN TERMS OF

THE ORDINARY PRINCIPLES GOVERNING EQUITABLE REMEDIES.  SEE BELL V.

HOOD, 327 U.S. 678, 684 (1946).  HOWEVER BROAD A FEDERAL COURT'S

DISCRETION CONCERNING EQUITABLE REMEDIES, IT IS ABSOLUTELY CLEAR-- AT

LEAST AFTER ERIE R. CO. V. TOMPKINS, 304 U.S. 64 (1938)-- THAT IN A

NONDIVERSITY SUIT A FEDERAL COURT'S POWER TO GRANT EVEN EQUITABLE

RELIEF DEPENDS ON THE PRESENCE OF A SUBSTANTIVE RIGHT DERIVED FROM

FEDERAL LAW.  COMPARE GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 105-107

(1945), WITH HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395 (1946).  SEE ALSO

H. HART & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 818

819 (1953). 



THUS THE INTEREST WHICH BIVENS CLAIMS-- TO BE FREE FROM OFFICIAL

CONDUCT IN CONTRAVENTION OF THE FOURTH AMENDMENT-- IS A FEDERALLY

PROTECTED INTEREST.  SEE GENERALLY KATZ, THE JURISPRUDENCE OF REMEDIES:

CONSTITUTIONAL LEGALITY AND THE LAW OF TORTS IN BELL V. HOOD, 117

U.PA.L.REV.  1, 33-34 (1968).  /3/  THEREFORE, THE QUESTION OF JUDICIAL

POWER TO GRANT BIVENS DAMAGES IS NOT A PROBLEM OF THE "SOURCE" OF THE

"RIGHT"; INSTEAD, THE QUESTION IS WHETHER THE POWER TO AUTHORIZE

DAMAGES AS A JUDICIAL REMEDY FOR THE VINDICATION OF A FEDERAL

CONSTITUTIONAL RIGHT IS PLACED BY THE CONSTITUTION ITSELF EXCLUSIVELY

IN CONGRESS' HANDS. 



        II 



THE CONTENTION THAT THE FEDERAL COURTS ARE POWERLESS TO ACCORD A

LITIGANT DAMAGES FOR A CLAIMED INVASION OF HIS FEDERAL CONSTITUTIONAL

RIGHTS UNTIL CONGRESS EXPLICITLY AUTHORIZES THE REMEDY CANNOT REST ON

THE NOTION THAT THE DECISION TO GRANT COMPENSATORY RELIEF INVOLVES A

RESOLUTION OF POLICY CONSIDERATIONS NOT SUSCEPTIBLE OF JUDICIAL

DISCERNMENT.  THUS, IN SUITS FOR DAMAGES BASED ON VIOLATIONS OF FEDERAL

STATUTES LACKING ANY EXPRESS AUTHORIZATION OF A DAMAGE REMEDY, THIS

COURT HAS AUTHORIZED SUCH RELIEF WHERE, IN ITS VIEW, DAMAGES ARE

NECESSARY TO EFFECTUATE THE CONGRESSIONAL POLICY UNDERPINNING THE

SUBSTANTIVE PROVISIONS OF THE STATUTE.  J. I. CASE CO. V. BORAK, 377

U.S. 426 (1964); TUNSTALL V. BROTHERHOOD OF LOCOMOTIVE FIREMEN &

ENGINEMEN, 323 U.S. 210, 213 (1944).  CF. WYANDOTTE TRANSPORTATION CO.

V. UNITED STATES, 389 U.S. 191, 201-204 (1967).  /4/ 



IF IT IS NOT THE NATURE OF THE REMEDY WHICH IS THOUGHT TO RENDER A

JUDGMENT AS TO THE APPROPRIATENESS OF DAMAGES INHERENTLY "LEGISLATIVE,"

THEN IT MUST BE THE NATURE OF THE LEGAL INTEREST OFFERED AS AN

OCCASION FOR INVOKING OTHERWISE APPROPRIATE JUDICIAL RELIEF.  BUT I DO

NOT THINK THAT THE FACT THAT THE INTEREST IS PROTECTED BY THE

CONSTITUTION RATHER THAN STATUTE OR COMMON LAW JUSTIFIES THE ASSERTION

THAT FEDERAL COURTS ARE POWERLESS TO GRANT DAMAGES IN THE ABSENCE OF

EXPLICIT CONGRESSIONAL ACTION AUTHORIZING THE REMEDY.  INITIALLY, I

NOTE THAT IT WOULD BE AT LEAST ANOMALOUS TO CONCLUDE THAT THE FEDERAL

JUDICIARY-- WHILE COMPETENT TO CHOOSE AMONG THE RANGE OF TRADITIONAL

JUDICIAL REMEDIES TO IMPLEMENT STATUTORY AND COMMON-LAW POLICIES, AND

EVEN TO GENERATE SUBSTANTIVE RULES GOVERNING PRIMARY BEHAVIOR IN

FURTHERANCE OF BROADLY FORMULATED POLICIES ARTICULATED BY STATUTE OR

CONSTITUTION, SEE TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448

(1957); UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 304-311

(1947); CLEARFIELD TRUST CO. V. UNITED STATES, 318 U.S. 363 (1943)-- IS

POWERLESS TO ACCORD A DAMAGES REMEDY TO VINDICATE SOCIAL POLICIES

WHICH, BY VIRTUE OF THEIR INCLUSION IN THE CONSTITUTION, ARE AIMED

PREDOMINANTLY AT RESTRAINING THE GOVERNMENT AS AN INSTRUMENT OF THE

POPULAR WILL. 



MORE IMPORTANTLY, THE PRESUMED AVAILABILITY OF FEDERAL EQUITABLE

RELIEF AGAINST THREATENED INVASIONS OF CONSTITUTIONAL INTERESTS APPEARS

ENTIRELY TO NEGATE THE CONTENTION THAT THE STATUS OF AN INTEREST AS

CONSTITUTIONALLY PROTECTED DIVESTS FEDERAL COURTS OF THE POWER TO GRANT

DAMAGES ABSENT EXPRESS CONGRESSIONAL AUTHORIZATION.  CONGRESS PROVIDED

SPECIALLY FOR THE EXERCISE OF EQUITABLE REMEDIAL POWERS BY FEDERAL

COURTS, SEE ACT OF MAY 8, 1792, SEC. 2, 1 STAT. 276; C. WRIGHT, LAW OF

FEDERAL COURTS 257 (2D ED., 1970), IN PART BECAUSE OF THE LIMITED

AVAILABILITY OF EQUITABLE REMEDIES IN STATE COURTS IN THE EARLY DAYS OF

THE REPUBLIC.  SEE GUARANTY TRUST CO. V. YORK, 326 U.S. 99, 104-105

(1945).  AND THIS COURT'S DECISIONS MAKE CLEAR THAT, AT LEAST ABSENT

CONGRESSIONAL RESTRICTIONS, THE SCOPE OF EQUITABLE REMEDIAL DISCRETION

IS TO BE DETERMINED ACCORDING TO THE DISTINCTIVE HISTORICAL TRADITIONS

OF EQUITY AS AN INSTITUTION, HOLMBERG V. ARMBRECHT, 327 U.S. 392, 395

396 (1946); SPRAGUE V. TICONIC NATIONAL BANK, 307 U.S. 161, 165-166

(1939).  THE REACH OF A FEDERAL DISTRICT COURT'S "INHERENT EQUITABLE

POWERS," TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 460 (BURTON,

J., CONCURRING IN RESULT), IS BROAD INDEED, E.G., SWANN V. CHARLOTTE

MECKLENBURG BOARD OF EDUCATION, 401 U.S. 1 (1971); NONETHELESS, THE

FEDERAL JUDICIARY IS NOT EMPOWERED TO GRANT EQUITABLE RELIEF IN THE

ABSENCE OF CONGRESSIONAL ACTION EXTENDING JURISDICTION OVER THE SUBJECT

MATTER OF THE SUIT.  SEE TEXTILE WORKERS V. LINCOLN MILLS, SUPRA, AT

460 (BURTON, J., CONCURRING IN RESULT); KATZ, 117 U.PA.L.REV.,AT 43. 

/5/ 



IF EXPLICIT CONGRESSIONAL AUTHORIZATION IS AN ABSOLUTE PREREQUISITE

TO THE POWER OF A FEDERAL COURT TO ACCORD COMPENSATORY RELIEF

REGARDLESS OF THE NECESSITY OR APPROPRIATENESS OF DAMAGES AS A REMEDY

SIMPLY BECAUSE OF THE STATUS OF A LEGAL INTEREST AS CONSTITUTIONALLY

PROTECTED, THEN IT SEEMS TO ME THAT EXPLICIT CONGRESSIONAL

AUTHORIZATION IS SIMILARLY PREREQUISITE TO THE EXERCISE OF EQUITABLE

REMEDIAL DISCRETION IN FAVOR OF CONSTITUTIONALLY PROTECTED INTERESTS. 

CONVERSELY, IF A GENERAL GRANT OF JURISDICTION TO THE FEDERAL COURTS BY

CONGRESS IS THOUGHT ADEQUATE TO EMPOWER A FEDERAL COURT TO GRANT

EQUITABLE RELIEF FOR ALL AREAS OF SUBJECT-MATTER JURISDICTION

ENUMERATED THEREIN, SEE 28 U.S.C. 1331(A), THEN IT SEEMS TO ME THAT THE

SAME STATUTE IS SUFFICIENT TO EMPOWER A FEDERAL COURT TO GRANT A

TRADITIONAL REMEDY AT LAW.  /6/  OF COURSE, THE SPECIAL HISTORICAL

TRADITIONS GOVERNING THE FEDERAL EQUITY SYSTEM, SEE SPRAGUE V. TICONIC

NATIONAL BANK, 307 U.S. 161 (1939), MIGHT STILL BEAR ON THE COMPARATIVE

APPROPRIATENESS OF GRANTING EQUITABLE RELIEF AS OPPOSED TO MONEY

DAMAGES.  THAT POSSIBILITY, HOWEVER, RELATES, NOT TO WHETHER THE

FEDERAL COURTS HAVE THE POWER TO AFFORD ONE TYPE OF REMEDY AS OPPOSED

TO THE OTHER, BUT RATHER TO THE CRITERIA WHICH SHOULD GOVERN THE

EXERCISE OF OUR POWER.  TO THAT QUESTION, I NOW PASS. 



        III 



THE MAJOR THRUST OF THE GOVERNMENT'S POSITION IS THAT, WHERE

CONGRESS HAS NOT EXPRESSLY AUTHORIZED A PARTICULAR REMEDY, A FEDERAL

COURT SHOULD EXERCISE ITS POWER TO ACCORD A TRADITIONAL FORM OF

JUDICIAL RELIEF AT THE BEHEST OF A LITIGANT, WHO CLAIMS A

CONSTITUTIONALLY PROTECTED INTEREST HAS BEEN INVADED, ONLY WHERE THE

REMEDY IS "ESSENTIAL," OR "INDISPENSABLE FOR VINDICATING CONSTITUTIONAL

RIGHTS."  BRIEF FOR RESPONDENTS 19, 24.  WHILE THIS "ESSENTIALITY" TEST

IS MOST CLEARLY ARTICULATED WITH RESPECT TO DAMAGES REMEDIES,

APPARENTLY THE GOVERNMENT BELIEVES THE SAME TEST EXPLAINS THE EXERCISE

OF EQUITABLE REMEDIAL POWERS.  ID., AT 17-18.  IT IS ARGUED THAT

HISTORICALLY THE COURT HAS RARELY EXERCISED THE POWER TO ACCORD SUCH

RELIEF IN THE ABSENCE OF AN EXPRESS CONGRESSIONAL AUTHORIZATION AND

THAT "(IF CONGRESS HAD THOUGHT THAT FEDERAL OFFICERS SHOULD BE SUBJECT

TO A LAW DIFFERENT THAN STATE LAW, IT WOULD HAVE HAD NO DIFFICULTY IN

SAYING SO, AS IT DID WITH RESPECT TO STATE OFFICERS . . . " ID., AT 20

21; SEE 42 U.S.C. 1983.  ALTHOUGH CONCEDING THAT THE STANDARD OF

DETERMINING WHETHER A DAMAGE REMEDY SHOULD BE UTILIZED TO EFFECTUATE

STATUTORY POLICIES IS ONE OF "NECESSITY" OR "APPROPRIATENESS," SEE J.

I. CASE CO. V. BORAK, 377 U.S. 426, 432 (1964); UNITED STATES V.

STANDARD OIL CO., 332 U.S. 301, 307 (1947), THE GOVERNMENT CONTENDS

THAT QUESTIONS CONCERNING CONGRESSIONAL DISCRETION TO MODIFY JUDICIAL

REMEDIES RELATING TO CONSTITUTIONALLY PROTECTED INTERESTS WARRANT A

MORE STRINGENT CONSTRAINT ON THE EXERCISE OF JUDICIAL POWER WITH

RESPECT TO THIS CLASS OF LEGALLY PROTECTED INTERESTS.  BRIEF FOR

RESPONDENTS 21-22. 



THESE ARGUMENTS FOR A MORE STRINGENT TEST TO GOVERN THE GRANT OF

DAMAGES IN CONSTITUTIONAL CASES /7/  SEEM TO BE ADEQUATELY ANSWERED BY

THE POINT THAT THE JUDICIARY HAS A PARTICULAR RESPONSIBILITY TO ASSURE

THE VINDICATION OF CONSTITUTIONAL INTERESTS SUCH AS THOSE EMBRACED BY

THE FOURTH AMENDMENT.  TO BE SURE, "IT MUST BE REMEMBERED THAT

LEGISLATURES ARE ULTIMATE GUARDIANS OF THE LIBERTIES AND WELFARE OF THE

PEOPLE IN QUITE AS GREAT A DEGREE AS THE COURTS."  MISSOURI, KANSAS &

TEXAS R. CO. V. MAY, 194 U.S. 267, 270 (1904).  BUT IT MUST ALSO BE

RECOGNIZED THAT THE BILL OF RIGHTS IS PARTICULARLY INTENDED TO

VINDICATE THE INTERESTS OF THE INDIVIDUAL IN THE FACE OF THE POPULAR

WILL AS EXPRESSED IN LEGISLATIVE MAJORITIES; AT THE VERY LEAST, IT

STRIKES ME AS NO MORE APPROPRIATE TO AWAIT EXPRESS CONGRESSIONAL

AUTHORIZATION OF TRADITIONAL JUDICIAL RELIEF WITH REGARD TO THESE LEGAL

INTERESTS THAN WITH RESPECT TO INTERESTS PROTECTED BY FEDERAL

STATUTES. 



THE QUESTION THEN, IS, AS I SEE IT, WHETHER COMPENSATORY RELIEF IS

"NECESSARY" OR "APPROPRIATE" TO THE VINDICATION OF THE INTEREST

ASSERTED.  CF. J. I. CASE CO. V. BORAK, SUPRA, AT 432; UNITED STATES V.

STANDARD OIL CO., SUPRA, AT 307; HILL, CONSTITUTIONAL REMEDIES, 69

COL.L.REV.  1109, 1155 (1969); KATZ, 117 U.PA.L.REV.,AT 72.  IN

RESOLVING THAT QUESTION, IT SEEMS TO ME THAT THE RANGE OF POLICY

CONSIDERATIONS WE MAY TAKE INTO ACCOUNT IS AT LEAST AS BROAD AS THE

RANGE OF THOSE A LEGISLATURE WOULD CONSIDER WITH RESPECT TO AN EXPRESS

STATUTORY AUTHORIZATION OF A TRADITIONAL REMEDY.  IN THIS REGARD I

AGREE WITH THE COURT THAT THE APPROPRIATENESS OF ACCORDING BIVENS

COMPENSATORY RELIEF DOES NOT TURN SIMPLY ON THE DETERRENT EFFECT

LIABILITY WILL HAVE ON FEDERAL OFFICIAL CONDUCT.  /8/  DAMAGES AS A

TRADITIONAL FORM OF COMPENSATION FOR INVASION OF A LEGALLY PROTECTED

INTEREST MAY BE ENTIRELY APPROPRIATE EVEN IF NO SUBSTANTIAL DETERRENT

EFFECTS ON FUTURE OFFICIAL LAWLESSNESS MIGHT BE THOUGHT TO RESULT. 

BIVENS, AFTER ALL, HAS INVOKED JUDICIAL PROCESSES CLAIMING ENTITLEMENT

TO COMPENSATION FOR INJURIES RESULTING FROM ALLEGEDLY LAWLESS OFFICIAL

BEHAVIOR, IF THOSE INJURIES ARE PROPERLY COMPENSABLE IN MONEY DAMAGES. 

I DO NOT THINK A COURT OF LAW-- VESTED WITH THE POWER TO ACCORD A

REMEDY-- SHOULD DENY HIM HIS RELIEF SIMPLY BECAUSE HE CANNOT SHOW THAT

FUTURE LAWLESS CONDUCT WILL THEREBY BE DETERRED. 



AND I THINK IT IS CLEAR THAT BIVENS ADVANCES A CLAIM OF THE SORT

THAT, IF PROVED, WOULD BE PROPERLY COMPENSABLE IN DAMAGES.  THE

PERSONAL INTERESTS PROTECTED BY THE FOURTH AMENDMENT ARE THOSE WE

ATTEMPT TO CAPTURE BY THE NOTION OF "PRIVACY"; WHILE THE COURT TODAY

PROPERLY POINTS OUT THAT THE TYPE OF HARM WHICH OFFICIALS CAN INFLICT

WHEN THEY INVADE PROTECTED ZONES OF AN INDIVIDUAL'S LIFE ARE DIFFERENT

FROM THE TYPES OF HARM PRIVATE CITIZENS INFLICT ON ONE ANOTHER, THE

EXPERIENCE OF JUDGES IN DEALING WITH PRIVATE TRESPASS AND FALSE

IMPRISONMENT CLAIMS SUPPORTS THE CONCLUSION THAT COURTS OF LAW ARE

CAPABLE OF MAKING THE TYPES OF JUDGMENT CONCERNING CAUSATION AND

MAGNITUDE OF INJURY NECESSARY TO ACCORD MEANINGFUL COMPENSATION FOR

INVATION OF FOURTH AMENDMENT RIGHTS.  /9/ 



ON THE OTHER HAND, THE LIMITATIONS ON STATE REMEDIES FOR VIOLATION

OF COMMON-LAW RIGHTS BY PRIVATE CITIZENS ARGUE IN FAVOR OF A FEDERAL

DAMAGES REMEDY.  THE INJURIES INFLICTED BY OFFICIALS ACTING UNDER COLOR

OF LAW, WHILE NO LESS COMPENSABLE IN DAMAGES THAN THOSE INFLICTED BY

PRIVATE PARTIES, ARE SUBSTANTIALLY DIFFERENT IN KIND, AS THE COURT'S

OPINION TODAY DISCUSSES IN DETAIL.  SEE MONROE V. PAPE, 365 U.S. 167,

195 (1961) (HARLAN, J., CONCURRING).  IT SEEMS TO ME ENTIRELY PROPER

THAT THESE INJURIES BE COMPENSABLE ACCORDING TO UNIFORM RULES OF

FEDERAL LAW, ESPECIALLY IN LIGHT OF THE VERY LARGE ELEMENT OF FEDERAL

LAW WHICH MUST IN ANY EVENT CONTROL THE SCOPE OF OFFICIAL DEFENSES TO

LIABILITY.  SEE WHEELDIN V. WHEELER, 373 U.S. 647, 652 (1963); MONROE

V. PAPE, SUPRA, AT 194-195 (HARLAN, J., CONCURRING); HOWARD V. LYONS,

360 U.S. 593 (1959).  CERTAINLY, THERE IS VERY LITTLE TO BE GAINED FROM

THE STANDPOINT OF FEDERALISM BY PRESERVING DIFFERENT RULES OF LIABILITY

FOR FEDERAL OFFICERS DEPENDENT ON THE STATE WHERE THE INJURY OCCURS. 

CF. UNITED STATES V. STANDARD OIL CO., 332 U.S. 301, 305-311 (1947). 



PUTTING ASIDE THE DESIRABILITY OF LEAVING THE PROBLEM OF FEDERAL

OFFICIAL LIABILITY TO THE VAGARIES OF COMMON-LAW ACTIONS, IT IS

APPARENT THAT SOME FORM OF DAMAGES IS THE ONLY POSSIBLE REMEDY FOR

SOMEONE IN BIVENS' ALLEGED POSITION.  IT WILL BE A RARE CASE INDEED IN

WHICH AN INDIVIDUAL IN BIVENS'  POSITION WILL BE ABLE TO OBVIATE THE

HARM BY SECURING INJUNCTIVE RELIEF FROM ANY COURT.  HOWEVER DESIRABLE A

DIRECT REMEDY AGAINST THE GOVERNMENT MIGHT BE AS A SUBSTITUTE FOR

INDIVIDUAL OFFICIAL LIABILITY, THE SOVEREIGN STILL REMAINS IMMUNE TO

SUIT.  FINALLY, ASSUMING BIVENS'  INNOCENCE OF THE CRIME CHARGED, THE

"EXCLUSIONARY RULE" IS SIMPLY IRRELEVANT.  FOR PEOPLE IN BIVENS' SHOES,

IT IS DAMAGES OR NOTHING. 



THE ONLY SUBSTANTIAL POLICY CONSIDERATION ADVANCED AGAINST

RECOGNITION OF A FEDERAL CAUSE OF ACTION FOR VIOLATION OF FOURTH

AMENDMENT RIGHTS BY FEDERAL OFFICIALS IS THE INCREMENTAL EXPENDITURE OF

JUDICIAL RESOURCES THAT WILL BE NECESSITATED BY THIS CLASS OF

LITIGATION.  THERE IS, HOWEVER, SOMETHING ULTIMATELY SELF-DEFEATING

ABOUT THIS ARGUMENT.  FOR IF, AS THE GOVERNMENT CONTENDS, DAMAGES WILL

RARELY BE REALIZED BY PLAINTIFFS IN THESE CASES BECAUSE OF JURY

HOSTILITY, THE LIMITED RESOURCES OF THE OFFICIAL CONCERNED, ETC., THEN

I AM NOT READY TO ASSUME THAT THERE WILL BE A SIGNIFICANT INCREASE IN

THE EXPENDITURE OF JUDICIAL RESOURCES ON THESE CLAIMS.  FEW RESPONSIBLE

LAWYERS AND PLAINTIFFS ARE LIKELY TO CHOOSE THE COURSE OF LITIGATION IF

THE STATISTICAL CHANCES OF SUCCESS ARE TRULY DE MINIMIS.  AND I SIMPLY

CANNOT AGREE WITH MY BROTHER BLACK THAT THE POSSIBILITY OF "FRIVOLOUS"

CLAIMS-- IF DEFINED SIMPLY AS CLAIMS WITH NO LEGAL MERIT-- WARRANTS

CLOSING THE COURTHOUSE DOORS TO PEOPLE IN BIVENS' SITUATION.  THERE ARE

OTHER WAYS, SHORT OF THAT, OF COPING WITH FRIVOLOUS LAWSUITS. 



ON THE OTHER HAND, IF-- AS I BELIEVE IS THE CASE WITH RESPECT, AT

LEAST, TO THE MOST FLAGRANT ABUSES OF OFFICIAL POWER-- DAMAGES TO SOME

DEGREE WILL BE AVAILABLE WHEN THE OPTION OF LITIGATION IS CHOSEN, THEN

THE QUESTION APPEARS TO BE HOW FOURTH AMENDMENT INTERESTS RANK ON A

SCALE OF SOCIAL VALUES COMPARED WITH, FOR EXAMPLE, THE INTERESTS OF

STOCKHOLDERS DEFRAUDED BY MISLEADING PROXIES.  SEE J. I. CASE CO. V.

BORAK, SUPRA.  JUDICIAL RESOURCES, I AM WELL AWARE, ARE INCREASINGLY

SCARCE THESE DAYS.  NONETHELESS, WHEN WE AUTOMATICALLY CLOSE THE

COURTHOUSE DOOR SOLELY ON THIS BASIS, WE IMPLICITLY EXPRESS A VALUE

JUDGMENT ON THE COMPARATIVE IMPORTANCE OF CLASSES OF LEGALLY PROTECTED

INTERESTS.  AND CURRENT LIMITATIONS UPON THE EFFECTIVE FUNCTIONING OF

THE COURTS ARISING FROM BUDGETARY INADEQUACIES SHOULD NOT BE PERMITTED

TO STAND IN THE WAY OF THE RECOGNITION OF OTHERWISE SOUND

CONSTITUTIONAL PRINCIPLES. 



OF COURSE, FOR A VARIETY OF REASONS, THE REMEDY MAY NOT OFTEN BE

SOUGHT.  SEE GENERALLY FOOTE, TORT REMEDIES FOR POLICE VIOLATIONS OF

INDIVIDUAL RIGHTS, 39 MINN.L.REV.  493 (1955).  AND THE COUNTERVAILING

INTERESTS IN EFFICIENT LAW ENFORCEMENT OF COURSE ARGUE FOR A PROTECTIVE

ZONE WITH RESPECT TO MANY TYPES OF FOURTH AMENDMENT VIOLATIONS.  CF.

BARR V. MATTEO, 360 U.S. 564 (1959) (OPINION OF HARLAN, J.).  BUT,

WHILE I EXPRESS NO VIEW ON THE IMMUNITY DEFENSE OFFERED IN THE INSTANT

CASE, I DEEM IT PROPER TO VENTURE THE THOUGHT THAT AT THE VERY LEAST

SUCH A REMEDY WOULD BE AVAILABLE FOR THE MOST FLAGRANT AND PATENTLY

UNJUSTIFIED SORTS OF POLICE CONDUCT.  ALTHOUGH LITIGANTS MAY NOT OFTEN

CHOOSE TO SEEK RELIEF, IT IS IMPORTANT, IN A CIVILIZED SOCIETY, THAT

THE JUDICIAL BRANCH OF THE NATION'S GOVERNMENT STAND READY TO AFFORD A

REMEDY IN THESE CIRCUMSTANCES.  IT GOES WITHOUT SAYING THAT I INTIMATE

NO VIEW ON THE MERITS OF PETITIONER'S UNDERLYING CLAIM. 



FOR THESE REASONS, I CONCUR IN THE JUDGMENT OF THE COURT. 



/1/  PETITIONER ALSO ASSERTED FEDERAL JURISDICTION UNDER 42 U.S.C.

1983 AND 28 U.S.C. 1343(3), AND 28 U.S.C. 1343(4).  NEITHER WILL

SUPPORT FEDERAL JURISDICTION OVER THE CLAIM.  SEE BIVENS V. SIX UNKNOWN

NAMED AGENTS, 409 F.2D 718, 720 N. 1 (CA2 1969). 



/2/  SEE N. 3, INFRA. 



/3/  THE GOVERNMENT APPEARS NOT QUITE READY TO CONCEDE THIS POINT. 

CERTAIN POINTS IN THE GOVERNMENT'S ARGUMENT SEEM TO SUGGEST THAT THE

"STATE-CREATED RIGHT-- FEDERAL DEFENSE" MODEL REACHES NOT ONLY THE

QUESTION OF THE POWER TO ACCORD A FEDERAL DAMAGES REMEDY, BUT ALSO THE

CLAIM TO ANY JUDICIAL REMEDY IN ANY COURT.  THUS, WE ARE POINTED TO

LASSON'S OBSERVATION CONCERNING MADISON'S VERSION OF THE FOURTH

AMENDMENT AS INTRODUCED INTO THE HOUSE: 



"THE OBSERVATION MAY BE MADE THAT THE LANGUAGE OF THE PROPOSAL DID

NOT PURPORT TO CREATE THE RIGHT TO BE SECURE FROM UNREASONABLE SEARCH

AND SEIZURES BUT MERELY STATED IT AS A RIGHT WHICH ALREADY EXISTED." 



N. LASSON, HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION 100 N. 77 (1937), QUOTED IN BRIEF FOR

RESPONDENTS 11 N. 7.  AND, ON THE PROBLEM OF FEDERAL EQUITABLE

VINDICATION OF CONSTITUTIONAL RIGHTS WITHOUT REGARD TO THE PRESENCE OF

A "STATE-CREATED RIGHT," SEE HART, THE RELATIONS BETWEEN STATE AND

FEDERAL LAW, 54 COL.L.REV.  489, 523-524 (1954), QUOTED IN BRIEF FOR

RESPONDENTS 17. 



ON THIS POINT, THE CHOICE OF PHRASEOLOGY IN THE FOURTH AMENDMENT

ITSELF IS SINGULARLY UNPERSUASIVE.  THE LEADING ARGUMENT AGAINST A

"BILL OF RIGHTS" WAS THE FEAR THAT INDIVIDUAL LIBERTIES NOT SPECIFIED

EXPRESSLY WOULD BE TAKEN AS EXCLUDED.  SEE GENERALLY, LASSON, SUPRA, AT

79-105.  THIS CIRCUMSTANCE ALONE MIGHT WELL EXPLAIN WHY THE AUTHORS OF

THE BILL OF RIGHTS WOULD OPT FOR LANGUAGE WHICH PRESUMES THE EXISTENCE

OF A FUNDAMENTAL INTEREST IN LIBERTY, ALBEIT ORIGINALLY DERIVED FROM

THE COMMON LAW.  SEE ENTICK V. CARRINGTON, 19 HOW.ST.TR. 1029, 95

ENG.REP.  807 (1765). 



IN TRUTH, THE LEGISLATIVE RECORD AS A WHOLE BEHIND THE BILL OF

RIGHTS IS SILENT ON THE RATHER REFINED DOCTRINAL QUESTION WHETHER THE

FRAMERS CONSIDERED THE RIGHTS THEREIN ENUMERATED AS DEPENDENT IN THE

FIRST INSTANCE ON THE DECISION OF A STATE TO ACCORD LEGAL STATUS TO THE

PERSONAL INTERESTS AT STAKE.  THAT IS UNDERSTANDABLE SINCE THE

GOVERNMENT ITSELF POINTS OUT THAT GENERAL FEDERAL-QUESTION JURISDICTION

WAS NOT EXTENDED TO THE FEDERAL DISTRICT COURTS UNTIL 1875.  ACT OF

MARCH 3, 1875, SEC. 1, 18 STAT. 470.  THE MOST THAT CAN BE DRAWN FROM

THIS HISTORICAL FACT IS THAT THE AUTHORS OF THE BILL OF RIGHTS ASSUMED

THE ADEQUACY OF COMMON-LAW REMEDIES TO VINDICATE THE FEDERALLY

PROTECTED INTEREST.  ONE MUST FIRST COMBINE THIS ASSUMPTION WITH

CONTEMPORARY MODES OF JURISPRUDENTIAL THOUGHT WHICH APPEARED TO LINK

"RIGHTS" AND "REMEDIES" IN A 1:1 CORRELATION, CF. MARBURY V. MADISON, 1

CRANCH 137, 163 (1803), BEFORE REACHING THE CONCLUSION THAT THE FRAMERS

ARE TO BE UNDERSTOOD TODAY AS HAVING CREATED NO FEDERALLY PROTECTED

INTERESTS.  AND, OF COURSE, THAT WOULD SIMPLY REQUIRE THE CONCLUSION

THAT FEDERAL EQUITABLE RELIEF WOULD NOT LIE TO PROTECT THOSE INTERESTS

GUARDED BY THEFOURTH AMENDMENT.     PROFESSOR HART'S OBSERVATIONS

CONCERNING THE "IMPERCEPTIBLE STEPS"  BETWEEN IN RE AYERS, 123 U.S. 443

(1887), AND EX PARTE YOUNG, 209 U.S. 123 (1908), SEE HART, SUPRA, FAIL

TO PERSUADE ME THAT THE SOURCE OF THE LEGAL INTEREST ASSERTED HERE IS

OTHER THAN THE FEDERAL CONSTITUTION ITSELF.  IN RE AYERS CONCERNED THE

PRECISE QUESTION WHETHER THE ELEVENTH AMENDMENT BARRED SUIT IN A

FEDERAL COURT FOR AN INJUNCTION COMPELLING A STATE OFFICER TO PERFORM A

CONTRACT TO WHICH THE STATE WAS A PARTY.  HAVING CONCLUDED THAT THE

SUIT WAS INESCAPABLY A SUIT AGAINST THE STATE UNDER THE ELEVENTH

AMENDMENT, THE COURT SPOKE OF THE PRESENCE OF STATE-CREATED RIGHTS AS A

DISTINGUISHING FACTOR SUPPORTING THE EXERCISE OF FEDERAL JURISDICTION

IN OTHER CONTRACT CLAUSE CASES.  THE ABSENCE OF A STATE-CREATED RIGHT

IN IN RE AYERS SERVED TO DISTINGUISH THAT CASE FROM THE PERSPECTIVE OF

THE STATE'S IMMUNITY TO SUIT; AYERS SIMPLY DOES NOT SPEAK TO THE

ANALYTICALLY DISTINCT QUESTION WHETHER THE CONSTITUTION IS IN THE

RELEVANT SENSE A SOURCE OF LEGAL PROTECTION FOR THE "RIGHTS" ENUMERATED

THEREIN. 



/4/  THE BORAK CASE IS AN ESPECIALLY CLEAR EXAMPLE OF THE EXERCISE

OF FEDERAL JUDICIAL POWER TO ACCORD DAMAGES AS AN APPROPRIATE REMEDY IN

THE ABSENCE OF ANY EXPRESS STATUTORY AUTHORIZATION OF A FEDERAL CAUSE

OF ACTION.  THERE WE "IMPLIED"-- FROM WHAT CAN ONLY BE CHARACTERIZED AS

AN "EXCLUSIVELY PROCEDURAL PROVISION" AFFORDING ACCESS TO A FEDERAL

FORUM, CF. TEXTILE WORKERS V. LINCOLN MILLS, 353 U.S. 448, 462-463

(1957) (FRANKFURTER, J., DISSENTING)-- A PRIVATE CAUSE OF ACTION FOR

DAMAGES FOR VIOLATION OF SEC. 14(A) OF THE SECURITIES EXCHANGE ACT OF

1934, 48 STAT. 895, 15 U.S.C. 78NA).  SEE SEC. 27, 48 STAT. 902, 15

U.S.C. 78AA.  WE DID SO IN AN AREA WHERE FEDERAL REGULATION HAS BEEN

SINGULARLY COMPREHENSIVE AND ELABORATE ADMINISTRATIVE ENFORCEMENT

MACHINERY HAD BEEN PROVIDED.  THE EXERCISE OF JUDICIAL POWER INVOLVED

IN BORAK SIMPLY CANNOT BE JUSTIFIED IN TERMS OF STATUTORY CONSTRUCTION,

SEE HILL, CONSTITUTIONAL REMEDIES, 69 COL.L.REV.  1109, 1120-1121

(1969); NOR DID THE BORAK COURT PURPORT TO DO SO.  SEE BORAK, SUPRA, AT

432-434.  THE NOTION OF "IMPLYING" A REMEDY, THEREFORE, AS APPLIED TO

CASES LIKE BORAK, CAN ONLY REFER TO A PROCESS WHEREBY THE FEDERAL

JUDICIARY EXERCISES A CHOICE AMONG TRADITIONALLY AVAILABLE JUDICIAL

REMEDIES ACCORDING TO REASONS RELATED TO THE SUBSTANTIVE SOCIAL POLICY

EMBODIED IN AN ACT OF POSITIVE LAW.  SEE IBID., AND BELL V. HOOD,

SUPRA, AT 684. 



/5/  WITH REGARD TO A COURT'S AUTHORITY TO GRANT AN EQUITABLE

REMEDY, THE LINE BETWEEN "SUBJECT MATTER" JURISDICTION AND REMEDIAL

POWERS HAD UNDOUBTEDLY BEEN OBSCURED BY THE FACT THAT HISTORICALLY THE

"SYSTEM OF EQUITY 'DERIVED ITS DOCTRINES, AS WELL AS ITS POWERS, FROM

ITS MODE OF GIVING RELIEF.'"  SEE GUARANTY TRUST CO. V. YORK, SUPRA, AT

105, QUOTING C. LANGDELL, SUMMARY OF EQUITY PLEADING XXVII (1877). 

PERHAPS THIS FACT ALONE ACCOUNTS FOR THE SUGGESTION SOMETIMES MADE THAT

A COURT'S POWER TO ENJOIN INVASION OF CONSTITUTIONALLY PROTECTED

INTERESTS DERIVES DIRECTLY FROM THE CONSTITUTION.  SEE BELL V. HOOD, 71

F.SUPP.  813, 819 (SD CAL. 1947). 



/6/ CHIEF JUDGE LUMBARD'S OPINION FOR THE COURT OF APPEALS IN THE

INSTANT CASE IS, AS I HAVE NOTED, IN ACCORD WITH THIS CONCLUSION: 



"THUS, EVEN IF THE CONSTITUTION ITSELF DOES NOT GIVE RISE TO AN

INHERENT INJUNCTIVE POWER TO PREVENT ITS VIOLATION BY GOVERNMENTAL

OFFICIALS THERE ARE STRONG REASONS FOR INFERRING THE EXISTENCE OF THIS

POWER UNDER ANY GENERAL GRANT OF JURISDICTION TO THE FEDERAL COURTS BY

CONGRESS."  409 F.2D, AT 723. 



THE DESCRIPTION OF THE REMEDY AS "INFERRED" CANNOT, OF COURSE, BE

INTENDED TO ASSIMILATE THE JUDICIAL DECISION TO ACCORD SUCH A REMEDY TO

ANY PROCESS OF STATUTORY CONSTRUCTION.  RATHER, AS WITH THE CASES

CONCERNING REMEDIES, IMPLIED FROM STATUTORY SCHEMES, SEE N. 4, SUPRA,

THE DESCRIPTION OF THE REMEDY AS "INFERRED" CAN ONLY BEAR ON THE

REASONS OFFERED TO EXPLAIN A JUDICIAL DECISION TO ACCORD OR NOT TO

ACCORD A PARTICULAR REMEDY. 



/7/  I EXPRESS NO VIEW ON THE GOVERNMENT'S SUGGESTION THAT

CONGRESSIONAL AUTHORITY TO SIMPLY DISCARD THE REMEDY THE COURT TODAY

AUTHORIZES MIGHT BE IN DOUBT; NOR DO I UNDERSTAND THE COURT'S OPINION

TODAY TO EXPRESS ANY VIEW ON THAT PARTICULAR QUESTION. 



/8/  AND I THINK IT FOLLOWS FROM THIS POINT THAT TODAY'S DECISION

HAS LITTLE, IF INDEED ANY, BEARING ON THE QUESTION WHETHER A FEDERAL

COURT MAY PROPERLY DEVISE REMEDIES-- OTHER THAN TRADITIONALLY AVAILABLE

FORMS OF JUDICIAL RELIEF-- FOR THE PURPOSE OF ENFORCING SUBSTANTIVE

SOCIAL POLICIES EMBODIED IN CONSTITUTIONAL OR STATUTORY POLICIES. 

COMPARE TODAY'S DECISION WITH MAPP V. OHIO, 367 U.S. 643 (1961), AND

WEEKS V. UNITED STATES, 232 U.S. 383 (1914).  THE COURT TODAY SIMPLY

RECOGNIZES WHAT HAS LONG BEEN IMPLICIT IN OUR DECISIONS CONCERNING

EQUITABLE RELIEF AND REMEDIES IMPLIED FROM STATUTORY SCHEMES; I.E.,

THAT A COURT OF LAW VESTED WITH JURISDICTION OVER THE SUBJECT MATTER OF

A SUIT HAS THE POWER-- AND THEREFORE THE DUTY-- TO MAKE PRINCIPLED

CHOICES AMONG TRADITIONAL JUDICIAL REMEDIES.  WHETHER SPECIAL

PROPHYLACTIC MEASURES-- WHICH AT LEAST ARGUABLY THE EXCLUSIONARY RULE

EXEMPLIFIES, SEE HILL, THE BILL OF RIGHTS AND THE SUPERVISORY POWER, 69

COL.L.REV.  181, 182-185 (1969)-- ARE SUPPORTABLE ON GROUNDS OTHER THAN

A COURT'S COMPETENCE TO SELECT AMONG TRADITIONAL JUDICIAL REMEDIES TO

MAKE GOOD THE WRONG DONE, CF. BELL V. HOOD, SUPRA, AT 684, IS A

SEPARATE QUESTION. 



/9/ THE SAME, OF COURSE, MAY NOT BE TRUE WITH RESPECT TO OTHER TYPES

OF CONSTITUTIONALLY PROTECTED INTERESTS, AND THEREFORE THE

APPROPRIATENESS OF MONEY DAMAGES MAY WELL VARY WITH THE NATURE OF THE

PERSONAL INTEREST ASSERTED.  SEE MONROE V. PAPE, 365 U.S. 167, 196 N. 5

(HARLAN, J., CONCURRING). 



MR. CHIEF JUSTICE BURGER, DISSENTING. 



I DISSENT FROM TODAY'S HOLDING WHICH JUDICIALLY CREATES A DAMAGE

REMEDY NOT PROVIDED FOR BY THE CONSTITUTION AND NOT ENACTED BY

CONGRESS.  WE WOULD MORE SURELY PRESERVE THE IMPORTANT VALUES OF THE

DOCTRINE OF SEPARATION OF POWERS-- AND PERHAPS GET A BETTER RESULT-- BY

RECOMMENDING A SOLUTION TO THE CONGRESS AS THE BRANCH OF GOVERNMENT IN

WHICH THE CONSTITUTION HAS VESTED THE LEGISLATIVE POWER.  LEGISLATION

IS THE BUSINESS OF THE CONGRESS, AND IT HAS THE FACILITIES AND

COMPETENCE FOR THAT TASK-- AS WE DO NOT.  PROFESSOR THAYER, SPEAKING OF

THE LIMITS ON JUDICIAL POWER, ALBEIT IN ANOTHER CONTEXT, HAD THIS TO

SAY:  /1/ 



"AND IF IT BE TRUE THAT THE HOLDERS OF LEGISLATIVE POWER ARE

CARELESS OR EVIL, YET THE CONSTITUTIONAL DUTY OF THE COURT REMAINS

UNTOUCHED; IT CANNOT RIGHTLY ATTEMPT TO PROTECT THE PEOPLE, BY

UNDERTAKING A FUNCTION NOT ITS OWN.  ON THE OTHER HAND, BY ADHERING

RIGIDLY TO ITS OWN DUTY, THE COURT WILL HELP, AS NOTHING ELSE CAN, TO

FIX THE SPOT WHERE RESPONSIBILITY LIES, AND TO BRING DOWN ON THAT

PRECISE LOCALITY THE THUNDERBOLT OF POPULAR CONDEMNATION.  . . . FOR

THAT COURSE-- THE TRUE COURSE OF JUDICIAL DUTY ALWAYS-- WILL POWERFULLY

HELP TO BRING THE PEOPLE AND THEIR REPRESENTATIVES TO A SENSE OF THEIR

OWN RESPONSIBILITY." 



THIS CASE HAS SIGNIFICANCE FAR BEYOND ITS FACTS AND ITS HOLDING. 

FOR MORE THAN 55 YEARS THIS COURT HAS ENFORCED A RULE UNDER WHICH

EVIDENCE OF UNDOUBTED RELIABILITY AND PROBATIVE VALUE HAS BEEN

SUPPRESSED AND EXCLUDED FROM CRIMINAL CASES WHENEVER IT WAS OBTAINED IN

VIOLATION OF THE FOURTH AMENDMENT.  WEEKS V. UNITED STATES, 232 U.S.

383 (1914); BOYD V. UNITED STATES, 116 U.S. 616, 633 (1886) (DICTUM). 

THIS RULE WAS EXTENDED TO THE STATES IN MAPP V. OHIO, 367 U.S. 643

(1961).  /2/  THE RULE HAS RESTED ON A THEORY THAT SUPPRESSION OF

EVIDENCE IN THESE CIRCUMSTANCES WAS IMPERATIVE TO DETER LAW ENFORCEMENT

AUTHORITIES FROM USING IMPROPER METHODS TO OBTAIN EVIDENCE. 



THE DETERRENCE THEORY UNDERLYING THE SUPPRESSION DOCTRINE, OR

EXCLUSIONARY RULE, HAS A CERTAIN APPEAL IN SPITE OF THE HIGH PRICE

SOCIETY PAYS FOR SUCH A DRASTIC REMEDY.  NOTWITHSTANDING ITS

PLAUSIBILITY, MANY JUDGES AND LAWYERS AND SOME OF OUR MOST

DISTINGUISHED LEGAL SCHOLARS HAVE NEVER QUITE BEEN ABLE TO ESCAPE THE

FORCE OF CARDOZO'S STATEMENT OF THE DOCTRINE'S ANOMALOUS RESULT: 



"THE CRIMINAL IS TO GO FREE BECAUSE THE CONSTABLE HAS BLUNDERED.  .

. . A ROOM IS SEARCHED AGAINST THE LAW, AND THE BODY OF A MURDERED MAN

IS FOUND.  . . . THE PRIVACY OF THE HOME HAS BEEN INFRINGED, AND THE

MURDERER GOES FREE."  PEOPLE V. DEFORE, 242 N.Y. 13, 21, 23-24, 150

N.E. 585, 587, 588 (1926).  /3/ 



THE PLURALITY OPINION IN IRVINE V. CALIFORNIA, 347 U.S. 128, 136

(1954), CATALOGUED THE DOCTRINE'S DEFECTS: 



"REJECTION OF THE EVIDENCE DOES NOTHING TO PUNISH THE WRONG-DOING

OFFICIAL, WHILE IT MAY, AND LIKELY WILL, RELEASE THE WRONG-DOING

DEFENDANT.  IT DEPRIVES SOCIETY OF ITS REMEDY AGAINST ONE LAWBREAKER

BECAUSE HE HAS BEEN PURSUED BY ANOTHER.  IT PROTECTS ONE AGAINST WHOM

INCRIMINATING EVIDENCE IS DISCOVERED, BUT DOES NOTHING TO PROTECT

INNOCENT PERSONS WHO ARE THE VICTIMS OF ILLEGAL BUT FRUITLESS

SEARCHES." 



FROM TIME TO TIME MEMBERS OF THE COURT, RECOGNIZING THE VALIDITY OF

THESE PROTESTS, HAVE ARTICULATED VARYING ALTERNATIVE JUSTIFICATIONS FOR

THE SUPPRESSION OF IMPORTANT EVIDENCE IN A CRIMINAL TRIAL.  UNDER ONE

OF THESE ALTERNATIVE THEORIES THE RULE'S FOUNDATION IS SHIFTED TO THE

"SPORTING CONTEST" THESIS THAT THE GOVERNMENT MUST "PLAY THE GAME

FAIRLY" AND CANNOT BE ALLOWED TO PROFIT FROM ITS OWN ILLEGAL ACTS. 

OLMSTEAD V. UNITED STATES, 277 U.S. 438, 469, 471 (1928) (DISSENTING

OPINIONS); SEE TERRY V. OHIO, 392 U.S. 1, 13 (1968).  BUT THE

EXCLUSIONARY RULE DOES NOT INELUCTABLY FLOW FROM A DESIRE TO ENSURE

THAT GOVERNMENT PLAYS THE "GAME" ACCORDING TO THE RULES.  IF AN

EFFECTIVE ALTERNATIVE REMEDY IS AVAILABLE, CONCERN FOR OFFICIAL

OBSERVANCE OF THE LAW DOES NOT REQUIRE ADHERENCE TO THE EXCLUSIONARY

RULE.  NOR IS IT EASY TO UNDERSTAND HOW A COURT CAN BE THOUGHT TO

ENDORSE A VIOLATION OF THE FOURTH AMENDMENT BY ALLOWING ILLEGALLY

SEIZED EVIDENCE TO BE INTRODUCED AGAINST A DEFENDANT IF AN EFFECTIVE

REMEDY IS PROVIDED AGAINST THE GOVERNMENT. 



THE EXCLUSIONARY RULE HAS ALSO BEEN JUSTIFIED ON THE THEORY THAT THE

RELATIONSHIP BETWEEN THE SELF-INCRIMINATION CLAUSE OF THE FIFTH

AMENDMENT AND THE FOURTH AMENDMENT REQUIRES THE SUPPRESSION OF EVIDENCE

SEIZED IN VIOLATION OF THE LATTER.  BOYD V. UNITED STATES, SUPRA, AT

633 (DICTUM); WOLF V. COLORADO, 338 U.S. 25, 47, 48 (1949) (RUTLEDGE,

J., DISSENTING); MAPP V. OHIO, SUPRA, AT 661-666 (BLACK, J.,

CONCURRING). 



EVEN IGNORING, HOWEVER, THE DECISIONS OF THIS COURT THAT HAVE HELD

THAT THE FIFTH AMENDMENT APPLIES ONLY TO "TESTIMONIAL" DISCLOSURES,

UNITED STATES V. WADE, 388 U.S. 218, 221-223 (1967); SCHMERBER V.

CALIFORNIA, 384 U.S. 757, 764 AND N. 8 (1966), IT SEEMS CLEAR THAT THE

SELF-INCRIMINATION CLAUSE DOES NOT PROTECT A PERSON FROM THE SEIZURE OF

EVIDENCE THAT IS INCRIMINATING.  IT PROTECTS A PERSON ONLY FROM BEING

THE CONDUIT BY WHICH THE POLICE ACQUIRE EVIDENCE.  MR. JUSTICE HOLMES

ONCE PUT IT SUCCINCTLY, "A PARTY IS PRIVILEGED FROM PRODUCING THE

EVIDENCE BUT NOT FROM ITS PRODUCTION."  JOHNSON V. UNITED STATES, 228

U.S. 457, 458 (1913). 



IT IS CLEAR, HOWEVER, THAT NEITHER OF THESE THEORIES UNDERGIRDS THE

DECIDED CASES IN THIS COURT.  RATHER THE EXCLUSIONARY RULE HAS RESTED

ON THE DETERRENT RATIONALE-- THE HOPE THAT LAW ENFORCEMENT OFFICIALS

WOULD BE DETERRED FROM UNLAWFUL SEARCHES AND SEIZURES IF THE ILLEGALLY

SEIZED, ALBEIT TRUSTWORTHY, EVIDENCE WAS SUPPRESSED OFTEN ENOUGH AND

THE COURTS PERSISTENTLY ENOUGH DEPRIVED THEM OF ANY BENEFITS THEY MIGHT

HAVE GAINED FROM THEIR ILLEGAL CONDUCT. 



THIS EVIDENTIARY RULE IS UNIQUE TO AMERICAN JURISPRUDENCE.  ALTHOUGH

THE ENGLISH AND CANADIAN LEGAL SYSTEMS ARE HIGHLY REGARDED, NEITHER HAS

ADOPTED OUR RULE.  SEE MARTIN, THE EXCLUSIONARY RULE UNDER FOREIGN LAW-

CANADA, 52 J.CRIM.L.C.& P.S. 271, 272 (1961); WILLIAMS, THE

EXCLUSIONARY RULE UNDER FOREIGN LAW-- ENGLAND, 52 J.CRIM.L.C.& P.S. 272

(1961). 



I DO NOT QUESTION THE NEED FOR SOME REMEDY TO GIVE MEANING AND TEETH

TO THE CONSTITUTIONAL GUARANTEES AGAINST UNLAWFUL CONDUCT BY GOVERNMENT

OFFICIALS.  WITHOUT SOME EFFECTIVE SANCTION, THESE PROTECTIONS WOULD

CONSTITUTE LITTLE MORE THAN RHETORIC.  BEYOND DOUBT THE CONDUCT OF SOME

OFFICIALS REQUIRES SANCTIONS AS CASES LIKE IRVINE INDICATE.  BUT THE

HOPE THAT THIS OBJECTIVE COULD BE ACCOMPLISHED BY THE EXCLUSION OF

RELIABLE EVIDENCE FROM CRIMINAL TRIALS WAS HARDLY MORE THAN A WISTFUL

DREAM.  ALTHOUGH I WOULD HESITATE TO ABANDON IT UNTIL SOME MEANINGFUL

SUBSTITUTE IS DEVELOPED, THE HISTORY OF THE SUPPRESSION DOCTRINE

DEMONSTRATES THAT IT IS BOTH CONCEPTUALLY STERILE AND PRACTICALLY

INEFFECTIVE IN ACCOMPLISHING ITS STATED OBJECTIVE.  THIS IS ILLUSTRATED

BY THE PARADOX THAT AN UNLAWFUL ACT AGAINST A TOTALLY INNOCENT PERSON--

SUCH AS PETITIONER CLAIMS TO BE-- HAS BEEN LEFT WITHOUT AN EFFECTIVE

REMEDY, AND HENCE THE COURT FINDS IT NECESSARY NOW-- 55 YEARS LATER--

TO CONSTRUCT A REMEDY OF ITS OWN. 



SOME CLEAR DEMONSTRATION OF THE BENEFITS AND EFFECTIVENESS OF THE

EXCLUSIONARY RULE IS REQUIRED TO JUSTIFY IT IN VIEW OF THE HIGH PRICE

IT EXTRACTS FROM SOCIETY-- THE RELEASE OF COUNTLESS GUILTY CRIMINALS. 

SEE ALLEN, FEDERALISM AND THE FOURTH AMENDMENT:  A REQUIEM FOR WOLF,

1961 SUP.CT.REV.  1, 33 N. 172.  BUT THERE IS NO EMPIRICAL EVIDENCE TO

SUPPORT THE CLAIM THAT THE RULE ACTUALLY DETERS ILLEGAL CONDUCT OF LAW

ENFORCEMENT OFFICIALS.  OAKS, STUDYING THE EXCLUSIONARY RULE IN SEARCH

AND SEIZURE, 37 U.CHI.L.REV.  665, 667 (1970). 



THERE ARE SEVERAL REASONS FOR THIS FAILURE.  THE RULE DOES NOT APPLY

ANY DIRECT SANCTION TO THE INDIVIDUAL OFFICIAL WHOSE ILLEGAL CONDUCT

RESULTS IN THE EXCLUSION OF EVIDENCE IN A CRIMINAL TRIAL.  WITH RARE

EXCEPTIONS LAW ENFORCEMENT AGENCIES DO NOT IMPOSE DIRECT SANCTIONS ON

THE INDIVIDUAL OFFICER RESPONSIBLE FOR A PARTICULAR JUDICIAL

APPLICATION OF THE SUPPRESSION DOCTRINE.  ID., AT 710.  THUS THERE IS

VIRTUALLY NOTHING DONE TO BRING ABOUT A CHANGE IN HIS PRACTICES.  THE

IMMEDIATE SANCTION TRIGGERED BY THE APPLICATION OF THE RULE IS VISITED

UPON THE PROSECUTOR WHOSE CASE AGAINST A CRIMINAL IS EITHER WEAKENED OR

DESTROYED.  THE DOCTRINE DEPRIVES THE POLICE IN NO REAL SENSE; EXCEPT

THAT APPREHENDING WRONGDOERS IS THEIR BUSINESS, POLICE HAVE NO MORE

STAKE IN SUCCESSFUL PROSECUTIONS THAN PROSECUTORS OR THE PUBLIC. 

THE SUPPRESSION DOCTRINE VAGUELY ASSUMES THAT LAW ENFORCEMENT IS A

MONOLITHIC GOVERNMENTAL ENTERPRISE.  FOR EXAMPLE, THE DISSENTERS IN

WOLF V. COLORADO, SUPRA, AT 44, ARGUED THAT: 



"ONLY BY EXCLUSION CAN WE IMPRESS UPON THE ZEALOUS PROSECUTOR THAT

VIOLATION OF THE CONSTITUTION WILL DO HIM NO GOOD.  AND ONLY WHEN THAT

POINT IS DRIVEN HOME CAN THE PROSECUTOR BE EXPECTED TO EMPHASIZE THE

IMPORTANCE OF OBSERVING THE CONSTITUTIONAL DEMANDS IN HIS INSTRUCTIONS

TO THE POLICE." 



BUT THE PROSECUTOR WHO LOSES HIS CASE BECAUSE OF POLICE MISCONDUCT

IS NOT AN OFFICIAL IN THE POLICE DEPARTMENT; HE CAN RARELY SET IN

MOTION ANY CORRECTIVE ACTION OR ADMINISTRATIVE PENALTIES.  MOREOVER, HE

DOES NOT HAVE CONTROL OR DIRECTION OVER POLICE PROCEDURES OR POLICE

ACTIONS THAT LEAD TO THE EXCLUSION OF EVIDENCE.  IT IS THE RARE

EXCEPTION WHEN A PROSECUTOR TAKES PART IN ARRESTS, SEARCHES, OR

SEIZURES SO THAT HE CAN GUIDE POLICE ACTION. 



WHATEVER EDUCATIONAL EFFECT THE RULE CONCEIVABLY MIGHT HAVE IN

THEORY IS GREATLY DIMINISHED IN FACT BY THE REALITIES OF LAW

ENFORCEMENT WORK.  POLICEMEN DO NOT HAVE THE TIME, INCLINATION, OR

TRAINING TO READ AND GRASP THE NUANCES OF THE APPELLATE OPINIONS THAT

ULTIMATELY DEFINE THE STANDARDS OF CONDUCT THEY ARE TO FOLLOW.  THE

ISSUES THAT THESE DECISIONS RESOLVE OFTEN ADMIT OF NEITHER EASY NOR

OBVIOUS ANSWERS, AS SHARPLY DIVIDED COURTS ON WHAT IS OR IS NOT

"REASONABLE" AMPLY DEMONSTRATE.  /4/  NOR CAN JUDGES, IN ALL CANDOR,

FORGET THAT OPINIONS SOMETIMES LACK HELPFUL CLARITY. 



THE PRESUMED EDUCATIONAL EFFECT OF JUDICIAL OPINIONS IS ALSO REDUCED

BY THE LONG TIME LAPSE-- OFTEN SEVERAL YEARS-- BETWEEN THE ORIGINAL

POLICE ACTION AND ITS FINAL JUDICIAL EVALUATION.  GIVEN A POLICEMAN'S

PRESSING RESPONSIBILITIES, IT WOULD BE SURPRISING IF HE EVER BECOMES

AWARE OF THE FINAL RESULT AFTER SUCH A DELAY.  FINALLY, THE

EXCLUSIONARY RULE'S DETERRENT IMPACT IS DILUTED BY THE FACT THAT THERE

ARE LARGE AREAS OF POLICE ACTIVITY THAT DO NOT RESULT IN CRIMINAL

PROSECUTIONS-- HENCE THE RULE HAS VIRTUALLY NO APPLICABILITY AND NO

EFFECT IN SUCH SITUATIONS.  OAKS, SUPRA, AT 720-724. 



TODAY'S HOLDING SEEKS TO FILL ONE OF THE GAPS OF THE SUPPRESSION

DOCTRINE-- AT THE PRICE OF IMPINGING ON THE LEGISLATIVE AND POLICY

FUNCTIONS THAT THE CONSTITUTION VESTS IN CONGRESS.  NEVERTHELESS, THE

HOLDING SERVES THE USEFUL PURPOSE OF EXPOSING THE FUNDAMENTAL

WEAKNESSES OF THE SUPPRESSION DOCTRINE.  SUPPRESSING UNCHALLENGED TRUTH

HAS SET GUILTY CRIMINALS FREE BUT DEMONSTRABLY HAS NEITHER DETERRED

DELIBERATE VIOLATIONS OF THE FOURTH AMENDMENT NOR DECREASED THOSE

ERRORS IN JUDGMENT THAT WILL INEVITABLY OCCUR GIVEN THE PRESSURES

INHERENT IN POLICE WORK HAVING TO DO WITH SERIOUS CRIMES. 



ALTHOUGH UNFORTUNATELY INEFFECTIVE, THE EXCLUSIONARY RULE HAS

INCREASINGLY BEEN CHARACTERIZED BY A SINGLE, MONOLITHIC, AND DRASTIC

JUDICIAL RESPONSE TO ALL OFFICIAL VIOLATIONS OF LEGAL NORMS. 

INADVERTENT ERRORS OF JUDGMENT THAT DO NOT WORK ANY GRAVE INJUSTICE

WILL INEVITABLY OCCUR UNDER THE PRESSURE OF POLICE WORK.  THESE HONEST

MISTAKES HAVE BEEN TREATED IN THE SAME WAY AS DELIBERATE AND FLAGRANT

IRVINE-TYPE VIOLATIONS OF THE FOURTH AMENDMENT.  FOR EXAMPLE, IN MILLER

V. UNITED STATES, 357 U.S. 301, 309-310 (1958), RELIABLE EVIDENCE WAS

SUPPRESSED BECAUSE OF A POLICE OFFICER'S FAILURE TO SAY A "FEW MORE

WORDS" DURING THE ARREST AND SEARCH OF A KNOWN NARCOTICS PEDDLER. 



THIS COURT'S DECISION ANNOUNCED TODAY IN COOLIDGE V. NEW HAMPSHIRE,

POST, P. 443, DRAMATICALLY ILLUSTRATES THE EXTENT TO WHICH THE DOCTRINE

REPRESENTS A MECHANICALLY INFLEXIBLE RESPONSE TO WIDELY VARYING DEGREES

OF POLICE ERROR AND THE RESULTING HIGH PRICE THAT SOCIETY PAYS.  I

DISSENTED IN COOLIDGE PRIMARILY BECAUSE I DO NOT BELIEVE THE FOURTH

AMENDMENT HAD BEEN VIOLATED.  EVEN ON THE COURT'S CONTRARY PREMISE,

HOWEVER, WHATEVER VIOLATION OCCURRED WAS SURELY INSUFFICIENT IN NATURE

AND EXTENT TO JUSTIFY THE DRASTIC RESULT DICTATED BY THE SUPPRESSION

DOCTRINE.  A FAIR TRIAL BY JURY HAS RESOLVED DOUBTS AS TO COOLIDGE'S

GUILT.  BUT NOW HIS CONVICTION ON RETRIAL IS PLACED IN SERIOUS QUESTION

BY THE REMAND FOR A NEW TRIAL-- YEARS AFTER THE CRIME-- IN WHICH

EVIDENCE THAT THE NEW HAMPSHIRE COURTS FOUND RELEVANT AND RELIABLE WILL

BE WITHHELD FROM THE JURY'S CONSIDERATION.  IT IS HARDLY SURPRISING

THAT SUCH RESULTS ARE VIEWED WITH INCOMPREHENSION BY NONLAWYERS IN THIS

COUNTRY AND LAWYERS, JUDGES, AND LEGAL SCHOLARS THE WORLD OVER. 



FREEING EITHER A TIGER OR A MOUSE IN A SCHOOLROOM IS AN ILLEGAL ACT,

BUT NO RATIONAL PERSON WOULD SUGGEST THAT THESE TWO ACTS SHOULD BE

PUNISHED IN THE SAME WAY.  FROM TIME TO TIME JUDGES HAVE OCCASION TO

PASS ON REGULATIONS GOVERNING POLICE PROCEDURES.  I WONDER WHAT WOULD

BE THE JUDICIAL RESPONSE TO A POLICE ORDER AUTHORIZING "SHOOT TO KILL"

WITH RESPECT TO EVERY FUGITIVE.  IT IS EASY TO PREDICT OUR COLLECTIVE

WRATH AND OUTRAGE.  WE, IN COMMON WITH ALL RATIONAL MINDS, WOULD SAY

THAT THE POLICE RESPONSE MUST RELATE TO THE GRAVITY AND NEED; THAT A

"SHOOT" ORDER MIGHT CONCEIVABLY BE TOLERABLE TO PREVENT THE ESCAPE OF A

CONVICTED KILLER BUT SURELY NOT FOR A CAR THIEF, A PICKPOCKET OR A

SHOPLIFTER. 



I SUBMIT THAT SOCIETY HAS AT LEAST AS MUCH RIGHT TO EXPECT

RATIONALLY GRADED RESPONSES FROM JUDGES IN PLACE OF THE UNIVERSAL

"CAPITAL PUNISHMENT" WE INFLICT ON ALL EVIDENCE WHEN POLICE ERROR IS

SHOWN IN ITS ACQUISITION.  SEE ALI, MODEL CODE OF PRE-ARRAIGNMENT

PROCEDURE SEC. SS8.02(2), P. 23 (TENT.  DRAFT NO. 4, 1971), REPRINTED

IN THE APPENDIX TO THIS OPINION.  YET FOR OVER 55 YEARS, AND WITH

INCREASING SCOPE AND INTENSITY AS TODAY'S COOLIDGE HOLDING SHOWS, OUR

LEGAL SYSTEM HAS TREATED VASTLY DISSIMILAR CASES AS IF THEY WERE THE

SAME.  OUR ADHERENCE TO THE EXCLUSIONARY RULE, OUR RESISTANCE TO

CHANGE, AND OUR REFUSAL EVEN TO ACKNOWLEDGE THE NEED FOR EFFECTIVE

ENFORCEMENT MECHANISMS BRING TO MIND HOLMES' WELL-KNOWN STATEMENT: 



"IT IS REVOLTING TO HAVE NO BETTER REASON FOR A RULE OF LAW THAN

THAT SO IT WAS LAID DOWN IN THE TIME OF HENRY IV.  IT IS STILL MORE

REVOLTING IF THE GROUNDS UPON WHICH IT WAS LAID DOWN HAVE VANISHED LONG

SINCE, AND THE RULE SIMPLY PERSISTS FROM BLIND IMITATION OF THE PAST." 

HOLMES, THE PATH OF THE LAW, 10 HARV.L.REV.  457, 469 (1897). 



IN CHARACTERIZING THE SUPPRESSION DOCTRINE AS AN ANOMALOUS AND

INEFFECTIVE MECHANISM WITH WHICH TO REGULATE LAW ENFORCEMENT, I INTEND

NO REFLECTION ON THE MOTIVATION OF THOSE MEMBERS OF THIS COURT WHO

HOPED IT WOULD BE A MEANS OF ENFORCING THE FOURTH AMENDMENT.  JUDGES

CANNOT BE FAULTED FOR BEING OFFENDED BY ARRESTS, SEARCHES, AND SEIZURES

THAT VIOLATE THE BILL OF RIGHTS OR STATUTES INTENDED TO REGULATE PUBLIC

OFFICIALS.  BUT WE CAN AND SHOULD BE FAULTED FOR CLINGING TO AN

UNWORKABLE AND IRRATIONAL CONCEPT OF LAW.  MY CRITICISM IS THAT WE HAVE

TAKEN SO LONG TO FIND BETTER WAYS TO ACCOMPLISH THESE DESIRED

OBJECTIVES.  AND THERE ARE BETTER WAYS. 



INSTEAD OF CONTINUING TO ENFORCE THE SUPPRESSION DOCTRINE

INFLEXIBLY, RIGIDLY, AND MECHANICALLY, WE SHOULD VIEW IT AS ONE OF THE

EXPERIMENTAL STEPS IN THE GREAT TRADITION OF THE COMMON LAW AND

ACKNOWLEDGE ITS SHORTCOMINGS.  BUT IN THE SAME SPIRIT WE SHOULD BE

PREPARED TO DISCONTINUE WHAT THE EXPERIENCE OF OVER HALF A CENTURY HAS

SHOWN NEITHER DETERS ERRANT OFFICERS NOR AFFORDS A REMEDY TO THE

TOTALLY INNOCENT VICTIMS OF OFFICIAL MISCONDUCT. 



I DO NOT PROPOSE, HOWEVER, THAT WE ABANDON THE SUPPRESSION DOCTRINE

UNTIL SOME MEANINGFUL ALTERNATIVE CAN BE DEVELOPED.  IN A SENSE OUR

LEGAL SYSTEM HAS BECOME THE CAPTIVE OF ITS OWN CREATION.  TO OVERRULE

WEEKS AND MAPP, EVEN ASSUMING THE COURT WAS NOW PREPARED TO TAKE THAT

STEP, COULD RAISE YET NEW PROBLEMS.  OBVIOUSLY THE PUBLIC INTEREST

WOULD BE POORLY SERVED IF LAW ENFORCEMENT OFFICIALS WERE SUDDENLY TO

GAIN THE IMPRESSION, HOWEVER ERRONEOUS, THAT ALL CONSTITUTIONAL

RESTRAINTS ON POLICE HAD SOMEHOW BEEN REMOVED-- THAT AN OPEN SEASON ON

"CRIMINALS" HAD BEEN DECLARED.  I AM CONCERNED LEST SOME SUCH MISTAKEN

IMPRESSION MIGHT BE FOSTERED BY A FLAT OVERRULING OF THE SUPPRESSION

DOCTRINE CASES.  FOR YEARS WE HAVE RELIED UPON IT AS THE EXCLUSIVE

REMEDY FOR UNLAWFUL OFFICIAL CONDUCT; IN A SENSE WE ARE IN A SITUATION

AKIN TO THE NARCOTICS ADDICT WHOSE DEPENDENCE ON DRUGS PRECLUDES ANY

DRASTIC OR IMMEDIATE WITHDRAWAL OF THE SUPPOSED PROP, REGARDLESS OF HOW

FUTILE ITS CONTINUED USE MAY BE. 



REASONABLE AND EFFECTIVE SUBSTITUTES CAN BE FORMULATED IF CONGRESS

WOULD TAKE THE LEAD, AS IT DID FOR EXAMPLE IN 1946 IN THE FEDERAL TORT

CLAIMS ACT.  I SEE NO INSUPERABLE OBSTACLE TO THE ELIMINATION OF THE

SUPPRESSION DOCTRINE IF CONGRESS WOULD PROVIDE SOME MEANINGFUL AND

EFFECTIVE REMEDY AGAINST UNLAWFUL CONDUCT BY GOVERNMENT OFFICIALS. 



THE PROBLEMS OF BOTH ERROR AND DELIBERATE MISCONDUCT BY LAW

ENFORCEMENT OFFICIALS CALL FOR A WORKABLE REMEDY.  PRIVATE DAMAGE

ACTIONS AGAINST INDIVIDUAL POLICE OFFICERS CONCEDEDLY HAVE NOT

ADEQUATELY MET THIS REQUIREMENT, AND IT WOULD BE FALLACIOUS TO ASSUME

TODAY'S WORK OF THE COURT IN CREATING A REMEDY WILL REALLY ACCOMPLISH

ITS STATED OBJECTIVE.  THERE IS SOME VALIDITY TO THE CLAIMS THAT JURIES

WILL NOT RETURN VERDICTS AGAINST INDIVIDUAL OFFICERS EXCEPT IN THOSE

UNUSUAL CASES WHERE THE VIOLATION HAS BEEN FLAGRANT OR WHERE THE ERROR

HAS BEEN COMPLETE, AS IN THE ARREST OF THE WRONG PERSON OR THE SEARCH

OF THE WRONG HOUSE.  THERE IS SURELY SERIOUS DOUBT, FOR EXAMPLE, THAT A

DRUG PEDDLER CAUGHT PACKAGING HIS WARES WILL BE ABLE TO AROUSE MUCH

SYMPATHY IN A JURY ON THE GROUND THAT THE POLICE OFFICER DID NOT

ANNOUNCE HIS IDENTITY AND PURPOSE FULLY OR BECAUSE HE FAILED TO UTTER A

"FEW MORE WORDS."  SEE MILLER V. UNITED STATES, SUPRA.  JURORS MAY WELL

REFUSE TO PENALIZE A POLICE OFFICER AT THE BEHEST OF A PERSON THEY

BELIEVE TO BE A "CRIMINAL" AND PROBABLY WILL NOT PUNISH AN OFFICER FOR

HONEST ERRORS OF JUDGMENT.  IN ANY EVENT AN ACTUAL RECOVERY DEPENDS ON

FINDING NONEXEMPT ASSETS OF THE POLICE OFFICER FROM WHICH A JUDGMENT

CAN BE SATISFIED. 



I CONCLUDE, THEREFORE, THAT AN ENTIRELY DIFFERENT REMEDY IS

NECESSARY BUT IT IS ONE THAT IN MY VIEW IS AS MUCH BEYOND JUDICIAL

POWER AS THE STEP THE COURT TAKES TODAY.  CONGRESS SHOULD DEVELOP AN

ADMINISTRATIVE OR QUASIJUDICIAL REMEDY AGAINST THE GOVERNMENT ITSELF TO

AFFORD COMPENSATION AND RESTITUTION FOR PERSONS WHOSE FOURTH AMENDMENT

RIGHTS HAVE BEEN VIOLATED.  THE VENERABLE DOCTRINE OF RESPONDEAT

SUPERIOR IN OUR TORT LAW PROVIDES AN ENTIRELY APPROPRIATE CONCEPTUAL

BASIS FOR THIS REMEDY.  IF, FOR EXAMPLE A SECURITY GUARD PRIVATELY

EMPLOYED BY A DEPARTMENT STORE COMMITS AN ASSAULT OR OTHER TORT ON A

CUSTOMER SUCH AS AN IMPROPER SEARCH, THE VICTIM HAS A SIMPLE AND

OBVIOUS REMEDY-- AN ACTION FOR MONEY DAMAGES AGAINST THE GUARD'S

EMPLOYER, THE DEPARTMENT STORE.  W. PROSSER, THE LAW OF TORST SEC. 68,

PP. 470-480 (3D ED. 1964).  /5/  SUCH A STATUTORY SCHEME WOULD HAVE THE

ADDED ADVANTAGE OF PROVIDING SOME REMEDY TO THE COMPLETELY INNOCENT

PERSONS WHO ARE SOMETIMES THE VICTIMS OF ILLEGAL POLICE CONDUCT--

SOMETHING THAT THE SUPPRESSION DOCTRINE, OF COURSE, CAN NEVER

ACCOMPLISH. 



A SIMPLE STRUCTURE WOULD SUFFICE.  /6/  FOR EXAMPLE, CONGRESS COULD

ENACT A STATUTE ALONG THE FOLLOWING LINES: 



(A) A WAIVER OF SOVEREIGN IMMUNITY AS TO THE ILLEGAL ACTS OF LAW

ENFORCEMENT OFFICIALS COMMITTED IN THE.PERFORMANCEOF ASSIGNED DUTIES; 



(B) THE CREATION OFA CAUSEOF ACTION FOR DAMAGES SUSTAINED BY ANY

PERSON AGGRIEVED BY CONDUCT OF GOVERNMENTAL AGENTS IN VIOLATION OF THE

FOURTH AMENDMENT OR STATUTES REGULATING OFFICIAL CONDUCT; 



(C) THE CREATION OF A TRIBUNAL, QUASI-JUDICIAL IN NATURE OR PERHAPS

PATTERNED AFTER THE UNITED STATES COURT OF CLAIMS, TO ADJUDICATE ALL

CLAIMS UNDER THE STATUTE; 



(D) A PROVISION THAT THIS STATUTORY REMEDY IS IN LIEU OF THE

EXCLUSION OF EVIDENCE SECURED FOR USE IN CRIMINAL CASES IN VIOLATION OF

THE FOURTH AMENDMENT; AND 



(E) A PROVISION DIRECTING THAT NO EVIDENCE, OTHERWISE ADMISSIBLE,

SHALL BE EXCLUDED FROM ANY CRIMINAL PROCEEDING BECAUSE OF VIOLATION OF

THE FOURTH AMENDMENT. 



I DOUBT THAT LAWYERS SERVING ON SUCH A TRIBUNAL WOULD BE SWAYED

EITHER BY UNDUE SYMPATHY FOR OFFICERS OR BY THE PREJUDICE AGAINST

"CRIMINALS" THAT HAS SOMETIMES MOVED LAY JURORS TO DENY CLAIMS.  IN

ADDITION TO AWARDING DAMAGES, THE RECORD OF THE POLICE CONDUCT THAT IS

CONDEMNED WOULD UNDOUBTEDLY BECOME A RELEVANT PART OF AN OFFICER'S

PERSONNEL FILE SO THAT THE NEED FOR ADDITIONAL TRAINING OR DISCIPLINARY

ACTION COULD BE IDENTIFIED OR HIS FUTURE USEFULNESS AS A PUBLIC

OFFICIAL EVALUATED.  FINALLY, APPELLATE JUDICIAL REVIEW COULD BE MADE

AVAILABLE ON MUCH THE SAME BASIS THAT IT IS NOW PROVIDED AS TO THE

DISTRICT COURTS AND REGULATORY AGENCIES.  THIS WOULD LEAVE TO THE

COURTS THE ULTIMATE RESPONSIBILITY FOR DETERMINING AND ARTICULATING

STANDARDS. 



ONCE THE CONSTITUTIONAL VALIDITY OF SUCH A STATUTE IS ESTABLISHED,

/7/  IT CAN REASONABLY BE ASSUMED THAT THE STATES WOULD DEVELOP THEIR

OWN REMEDIAL SYSTEMS ON THE FEDERAL MODEL.  INDEED THERE IS NOTHING TO

PREVENT A STATE FROM ENACTING A COMPARABLE STATUTORY SCHEME WITHOUT

WAITING FOR THE CONGRESS.  STEPS ALONG THESE LINES WOULD MOVE OUR

SYSTEM TOWARD MORE RESPONSIBLE LAW ENFORCEMENT ON THE ONE HAND AND AWAY

FROM THE IRRATIONAL AND DRASTIC RESULTS OF THE SUPPRESSION DOCTRINE ON

THE OTHER.  INDEPENDENT OF THE ALTERNATIVE EMBRACED IN THIS DISSENTING

OPINION, I BELIEVE THE TIME HAS COME TO RE-EXAMINE THE SCOPE OF THE

EXCLUSIONARY RULE AND CONSIDER AT LEAST SOME NARROWING OF ITS THRUST SO

AS TO ELIMINATE THE ANOMALIES IT HAS PRODUCED.     IN A COUNTRY THAT

PRIDES ITSELF ON INNOVATION, INVENTIVE GENIUS, AND WILLINGNESS TO

EXPERIMENT, IT IS A PARADOX THAT WE SHOULD CLING FOR MORE THAN A HALF

CENTURY TO A LEGAL MECHANISM THAT WAS POORLY DESIGNED AND NEVER REALLY

WORKED.  I CAN ONLY HOPE NOW THAT THE CONGRESS WILL MANIFEST A

WILLINGNESS TO VIEW REALISTICALLY THE HARD EVIDENCE OF THE HALF-CENTURY

HISTORY OF THE SUPPRESSION DOCTRINE REVEALING THOUSANDS OF CASES IN

WHICH THE CRIMINAL WAS SET FREE BECAUSE THE CONSTABLE BLUNDERED AND

VIRTUALLY NO EVIDENCE THAT INNOCENT VICTIMS OF POLICE ERROR-- SUCH AS

PETITIONER CLAIMS TO BE-- HAVE BEEN AFFORDED MEANINGFUL REDRESS. 



/1/  J. THAYER, O. HOLMES, & F. FRANKFURTER, JOHN MARSHALL 88

(PHOENIX ED. 1967).     /2/  THE COURT REACHED THE ISSUE OF APPLYING

THE WEEKS DOCTRINE TO THE STATES SUA SPONTE. 



/3/  WHAT CARDOZO SUGGESTED AS AN EXAMPLE OF THE POTENTIALLY FAR

REACHING CONSEQUENCES OF THE SUPPRESSION DOCTRINE WAS ALMOST REALIZED

IN KILLOUGH V. UNITED STATES, 114 U.S.APP.D.C. 305, 315 F.2D 241

(1962). 



/4/  FOR EXAMPLE, IN A CASE ARISING UNDER MAPP, SUPRA, STATE JUDGES

AT EVERY LEVEL OF THE STATE JUDICIARY MAY FIND THE POLICE CONDUCT

PROPER.  ON FEDERAL HABEAS CORPUS A DISTRICT JUDGE AND A COURT OF

APPEALS MIGHT AGREE.  YET, IN THESE CIRCUMSTANCES, THIS COURT,

REVIEWING THE CASE AS MUCH AS 10 YEARS LATER, MIGHT REVERSE BY A NARROW

MARGIN.  IN THESE CIRCUMSTANCES IT IS DIFFICULT TO CONCLUDE THAT THE

POLICEMAN HAS VIOLATED SOME RULE THAT HE SHOULD HAVE KNOWN WAS A

RESTRICTION ON HIS AUTHORITY. 



/5/  DAMAGE VERDICTS FOR SUCH ACTS ARE OFTEN SUFFICIENT IN SIZE TO

PROVIDE AN EFFECTIVE DETERRENT AND STIMULATE EMPLOYERS TO CORRECTIVE

ACTION. 



/6/  ELECTRONIC EAVESDROPPING PRESENTS SPECIAL PROBLEMS.  SEE 18

U.S.C. 2510-2520 (1964 ED., SUPP. V). 



/7/  ANY SUCH LEGISLATION SHOULD EMPHASIZE THE INTERDEPENDENCE

BETWEEN THE WAIVER OF SOVEREIGN IMMUNITY AND THE ELIMINATION OF THE

JUDICIALLY CREATED EXCLUSIONARY RULE SO THAT IF THE LEGISLATIVE

DETERMINATION TO REPUDIATE THE EXCLUSIONARY RULE FALLS, THE ENTIRE

STATUTORY SCHEME WOULD FALL. 



        APPENDIX TO OPINION OF BURGER, C. J., DISSENTING 



IT IS INTERESTING TO NOTE THAT STUDIES OVER A PERIOD OF YEARS LED

THE AMERICAN LAW INSTITUTE TO PROPOSE THE FOLLOWING IN ITS TENTATIVE

DRAFT OF A MODEL PRE-ARRAIGNMENT CODE: 



    "(2) DETERMINATION.  UNLESS OTHERWISE REQUIRED BY THE



  CONSTITUTION OF THE UNITED STATES OR OF THIS STATE, A MOTION TO



  SUPPRESS EVIDENCE BASED UPON A VIOLATION OF ANY OF THE PROVISIONS



  OF THIS CODE SHALL BE GRANTED ONLY IF THE COURT FINDS THAT SUCH



  VIOLATION WAS SUBSTANTIAL.  IN DETERMINING WHETHER A VIOLATION IS



  SUBSTANTIAL THE COURT SHALL CONSIDER ALL THE CIRCUMSTANCES,



  INCLUDING: 



 "(A) THE IMPORTANCE OF THE PARTICULAR INTEREST VIOLATED; 



     "(B) THE EXTENT OF DEVIATION FROM LAWFUL CONDUCT; 



    "(C) THE EXTENT TO WHICH THE VIOLATION WAS WILLFUL; 



    "(D) THE EXTENT TO WHICH PRIVACY WAS INVADED; 



"(E) THE EXTENT TO WHICH EXCLUSION WILL TEND TO PREVENT VIOLATIONS OF

THIS CODE; 



     "(F) WHETHER, BUT FOR THE VIOLATION, THE THINGS SEIZED WOULD

HAVE BEEN DISCOVERED; AND 



"(G) THE EXTENT TO WHICH THE VIOLATION PREJUDICED THE MOVING



  PARTY'S ABILITY TO SUPPORT HIS MOTION, OR TO DEFEND HIMSELF IN



  THE PROCEEDING IN WHICH THE THINGS SEIZED ARE SOUGHT TO BE



  OFFERED IN EVIDENCE AGAINST HIM. 



     "(3) FRUITS OF PRIOR UNLAWFUL SEARCH.  IF A SEARCH OR SEIZURE



 IS CARRIED OUT IN SUCH A MANNER THAT THINGS SEIZED IN THE COURSE



  OF THE SEARCH WOULD BE SUBJECT TO A MOTION TO SUPPRESS UNDER



  SUBSECTION (1), AND IF AS A RESULT OF SUCH SEIZURE OTHER EVIDENCE



  IS DISCOVERED SUBSEQUENTLY AND OFFERED AGAINST A DEFENDANT, SUCH



  EVIDENCE SHALL BE SUBJECT TO A MOTION TO SUPPRESS UNLESS THE



  PROSECUTION ESTABLISHES THAT SUCH EVIDENCE WOULD PROBABLY HAVE



  BEEN DISCOVERED BY LAW ENFORCEMENT AUTHORITIES IRRESPECTIVE OF



  SUCH SEARCH OR SEIZURE, AND THE COURT FINDS THAT EXCLUSION OF



  SUCH EVIDENCE IS NOT NECESSARY TO DETER VIOLATIONS OF THIS



CODE." 



ALI, MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE SECS. SS8.02(2),(3),

PP. 23-24 (TENT.  DRAFT NO. 4, 1971). 



THE REPORTERS' VIEWS ON THE EXCLUSIONARY RULE ARE ALSO REFLECTED IN

THEIR COMMENT ON THE PROPOSED SECTION: 



     "THE REPORTERS WISH TO EMPHASIZE THAT THEY ARE NOT, AS A

MATTER



  OF POLICY, WEDDED TO THE EXCLUSIONARY RULE AS THE SOLE OR BEST



 MEANS OF ENFORCING THE FOURTH AMENDMENT.  SEE OAKS, STUDYING THE



  EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37 U.OF CHI.L.REV.  665



  (1970).  PARAGRAPH (2) EMBODIES WHAT THE REPORTERS HOPE IS A MORE



  FLEXIBLE APPROACH TO THE PROBLEM, SUBJECT OF COURSE TO



  CONSTITUTIONAL REQUIREMENTS."  ID., COMMENT, AT 26-27. 



THIS IS BUT ONE OF MANY EXPRESSIONS OF DISENCHANTMENT WITH THE

EXCLUSIONARY RULE; SEE ALSO: 



1.  BARRETT, EXCLUSION OF EVIDENCE OBTAINED BY ILLEGAL SEARCHES-- A

COMMENT ON PEOPLE VS. CAHAN, 43 CALIF.L.REV.  565 (1955). 



2.  BURNS, MAPP V. OHIO:  AN ALL-AMERICAN MISTAKE, 19 DEPAUL L.REV. 

80 (1969). 



3.  FRIENDLY, THE BILL OF RIGHTS AS A CODE OF CRIMINAL PROCEDURE, 53

CALIF.L.REV.  929, 951-954 (1965). 



4.  F. INBAU, J. THOMPSON, & C. SOWLE, CASES AND COMMENTS ON

CRIMINAL JUSTICE:  CRIMINAL LAW ADMINISTRATION 1-84 (3D ED. 1968). 



5.  LAFAVE, IMPROVING POLICE PERFORMANCE THROUGH THE EXCLUSIONARY

RULE (PTS.  1 & 2), 30 MO.L.REV.  391, 566 (1965). 



6.  LAFAVE & REMINGTON, CONTROLLING THE POLICE:  THE JUDGE'S ROLE IN

MAKING AND REVIEWING LAW ENFORCEMENT DECISIONS, 63 MICH.L.REV.  987

(1965). 



7.  N. MORRIS & G. HAWKINS, THE HONEST POLITICIAN'S GUIDE TO CRIME

CONTROL 101 (1970). 



8.  OAKS, STUDYING THE EXCLUSIONARY RULE IN SEARCH AND SEIZURE, 37

U.CHI.L.REV.  665 (1970). 



9.  PLUMB, ILLEGAL ENFORCEMENT OF THE LAW, 24 CORNELL L.Q. 337

(1939). 



10.  SCHAEFER, THE FOURTEENTH AMENDMENT AND SANCTITY OF THE PERSON,

64 NW.U.L.REV.  1 (1969). 



11.  WAITE, JUDGES AND THE CRIME BURDEN, 54 MICH.L.REV.  169

(1955). 



12.  WAITE, EVIDENCE-- POLICE REGULATION BY RULES OF EVIDENCE, 42

MICH.L.REV.  679 (1944). 



13.  WIGMORE, USING EVIDENCE OBTAINED BY ILLEGAL SEARCH AND SEIZURE,

8 A.B.A.J. 479 (1922). 



14.  8 J.WIGMORE, EVIDENCE 2184A (MCNAUGHTON REV. 1961). 



MR. JUSTICE BLACK, DISSENTING. 



IN MY OPINION FOR THE COURT IN BELL V. HOOD, 327 U.S. 678 (1946), WE

DID AS THE COURT STATES, RESERVE THE QUESTION WHETHER AN UNREASONABLE

SEARCH MADE BY A FEDERAL OFFICER IN VIOLATION OF THE FOURTH AMENDMENT

GIVES THE SUBJECT OF THE SEARCH A FEDERAL CAUSE OF ACTION FOR DAMAGES

AGAINST THE OFFICERS MAKING THE SEARCH.  THERE CAN BE NO DOUBT THAT

CONGRESS COULD CREATE A FEDERAL CAUSE OF ACTION FOR DAMAGES FOR AN

UNREASONABLE SEARCH IN VIOLATION OF THE FOURTH AMENDMENT.  ALTHOUGH

CONGRESS HAS CREATED SUCH A FEDERAL CAUSE OF ACTION AGAINST STATE

OFFICIALS ACTING UNDER COLOR OF STATE LAW, /1/  IT HAS NEVER CREATED

SUCH A CAUSE OF ACTION AGAINST FEDERAL OFFICIALS.  IF IT WANTED TO DO

SO, CONGRESS COULD, OF COURSE, CREATE A REMEDY AGAINST FEDERAL

OFFICIALS WHO VIOLATE THE FOURTH AMENDMENT IN THE PERFORMANCE OF THEIR

DUTIES.  BUT THE POINT OF THIS CASE AND THE FATAL WEAKNESS IN THE

COURT'S JUDGMENT IS THAT NEITHER CONGRESS NOR THE STATE OF NEW YORK HAS

ENACTED LEGISLATION CREATING SUCH A RIGHT OF ACTION.  FOR US TO DO SO

IS, IN MY JUDGMENT, AN EXERCISE OF POWER THAT THE CONSTITUTION DOES NOT

GIVE US. 



EVEN IF WE HAD THE LEGISLATIVE POWER TO CREATE A REMEDY, THERE ARE

MANY REASONS WHY WE SHOULD DECLINE TO CREATE A CAUSE OF ACTION WHERE

NONE HAS EXISTED SINCE THE FORMATION OF OUR GOVERNMENT.  THE COURTS OF

THE UNITED STATES AS WELL AS THOSE OF THE STATES ARE CHOKED WITH

LAWSUITS.  THE NUMBER OF CASES ON THE DOCKET OF THIS COURT HAVE REACHED

AN UNPRECEDENTED VOLUME IN RECENT YEARS.  A MAJORITY OF THESE CASES ARE

BROUGHT BY CITIZENS WITH SUBSTANTIAL COMPLAINTS-- PERSONS WHO ARE

PHYSICALLY OR ECONOMICALLY INJURED BY TORTS OR FRAUDS OR GOVERNMENTAL

INFRINGEMENT OF THEIR RIGHTS; PERSONS WHO HAVE BEEN UNJUSTLY DEPRIVED

OF THEIR LIBERTY OR THEIR PROPERTY; AND PERSONS WHO HAVE NOT YET

RECEIVED THE EQUAL OPPORTUNITY IN EDUCATION, EMPLOYMENT, AND PURSUIT OF

HAPPINESS THAT WAS THE DREAM OF OUR FOREFATHERS.  UNFORTUNATELY, THERE

HAVE ALSO BEEN A GROWING NUMBER OF FRIVOLOUS LAWSUITS, PARTICULARLY

ACTIONS FOR DAMAGES AGAINST LAW ENFORCEMENT OFFICERS WHOSE CONDUCT HAS

BEEN JUDICIALLY SANCTIONED BY STATE TRIAL AND APPELLATE COURTS AND IN

MANY INSTANCES EVEN BY THIS COURT.  MY FELLOW JUSTICES ON THIS COURT

AND OUR BRETHREN THROUGHOUT THE FEDERAL JUDICIARY KNOW ONLY TOO WELL

THE TIME-CONSUMING TASK OF CONSCIENTIOUSLY PORING OVER HUNDREDS OF

THOUSANDS OF PAGES OF FACTUAL ALLEGATIONS OF MISCONDUCT BY POLICE,

JUDICIAL, AND CORRECTIONS OFFICIALS.  OF COURSE, THERE ARE INSTANCES OF

LEGITIMATE GRIEVANCES, BUT LEGISLATORS MIGHT WELL DESIRE TO DEVOTE

JUDICIAL RESOURCES TO OTHER PROBLEMS OF A MORE SERIOUS NATURE. 



WE SIT AT THE TOP OF A JUDICIAL SYSTEM ACCUSED BY SOME OF NEARING

THE POINT OF COLLAPSE.  MANY CRIMINAL DEFENDANTS DO NOT RECEIVE SPEEDY

TRIALS AND NEITHER SOCIETY NOR THE ACCUSED ARE ASSURED OF JUSTICE WHEN

INORDINATE DELAYS OCCUR.  CITIZENS MUST WAIT YEARS TO LITIGATE THEIR

PRIVATE CIVIL SUITS.  SUBSTANTIAL CHANGES IN CORRECTIONAL AND PAROLE

SYSTEMS DEMAND THE ATTENTION OF THE LAWMAKERS AND THE JUDICIARY.  IF I

WERE A LEGISLATOR I MIGHT WELL FIND THESE AND OTHER NEEDS SO PRESSING

AS TO MAKE ME BELIEVE THAT THE RESOURCES OF LAWYERS AND JUDGES SHOULD

BE DEVOTED TO THEM RATHER THAN TO CIVIL DAMAGE ACTIONS AGAINST OFFICERS

WHO GENERALLY STRIVE TO PERFORM WITHIN CONSTITUTIONAL BOUNDS.  THERE IS

ALSO A REAL DANGER THAT SUCH SUITS MIGHT DETER OFFICIALS FROM THE

PROPER AND HONEST PERFORMANCE OF THEIR DUTIES. 



ALL OF THESE CONSIDERATIONS MAKE IMPERATIVE CAREFUL STUDY AND

WEIGHING OF THE ARGUMENTS BOTH FOR AND AGAINST THE CREATION OF SUCH A

REMEDY UNDER THE FOURTH AMENDMENT.  I WOULD HAVE GREAT DIFFICULTY FOR

MYSELF IN RESOLVING THE COMPETING POLICIES, GOALS, AND PRIORITIES IN

THE USE OF RESOURCES, IF I THOUGHT IT WERE MY JOB TO RESOLVE THOSE

QUESTIONS.  BUT THAT IS NOT MY TASK.  THE TASK OF EVALUATING THE PROS

AND CONS OF CREATING JUDICIAL REMEDIES FOR PARTICULAR WRONGS IS A

MATTER FOR CONGRESS AND THE LEGISLATURES OF THE STATES.  CONGRESS HAS

NOT PROVIDED THAT ANY FEDERAL COURT CAN ENTERTAIN A SUIT AGAINST A

FEDERAL OFFICER FOR VIOLATIONS OF FOURTH AMENDMENT RIGHTS OCCURRING IN

THE PERFORMANCE OF HIS DUTIES.  A STRONG INFERENCE CAN BE DRAWN FROM

CREATION OF SUCH ACTIONS AGAINST STATE OFFICIALS THAT CONGRESS DOES NOT

DESIRE TO PERMIT SUCH SUITS AGAINST FEDERAL OFFICIALS.  SHOULD THE TIME

COME WHEN CONGRESS DESIRES SUCH LAWSUITS, IT HAS BEFORE IT A MODEL OF

VALID LEGISLATION, 42 U.S.C. 1983, TO CREATE A DAMAGE REMEDY AGAINST

FEDERAL OFFICERS.  CASES COULD BE CITED TO SUPPORT THE LEGAL

PROPOSITION WHICH I ASSERT, BUT IT SEEMS TO ME TO BE A MATTER OF COMMON

UNDERSTANDING THAT THE BUSINESS OF THE JUDICIARY IS TO INTERPRET THE

LAWS AND NOT TO MAKE THEM. 



I DISSENT. 



/1/  "EVERY PERSON WHO, UNDER COLOR OF ANY STATUTE, ORDINANCE,

REGULATION, CUSTOM, OR USAGE, OF ANY STATE OR TERRITORY, SUBJECTS, OR

CAUSES TO BE SUBJECTED, ANY CITIZEN OF THE UNITED STATES OR OTHER

PERSON WITHIN THE JURISDICTION THEREOF TO THE DEPRIVATION OF ANY

RIGHTS, PRIVILEGES, OR IMMUNITIES SECURED BY THE CONSTITUTION AND LAWS,

SHALL BE LIABLE TO THE PARTY INJURED IN AN ACTION AT LAW, SUIT IN

EQUITY, OR OTHER PROPER PROCEEDING FOR REDRESS."  REV. STAT. SEC. 1979,

42 U.S.C. 1983. 



MR. JUSTICE BLACKMUN, DISSENTING. 



I, TOO, DISSENT.  I DO SO LARGELY FOR THE REASONS EXPRESSED IN CHIEF

JUDGE LUMBARD'S THOUGHTFUL AND SCHOLARLY OPINION FOR THE COURT OF

APPEALS.  BUT I ALSO FEEL THAT THE JUDICIAL LEGISLATION, WHICH THE

COURT BY ITS OPINION TODAY CONCEDEDLY IS EFFECTUATING, OPENS THE DOOR

FOR ANOTHER AVALANCHE OF NEW FEDERAL CASES.  WHENEVER A SUSPECT

IMAGINES, OR CHOOSES TO ASSERT, THAT A FOURTH AMENDMENT RIGHT HAS BEEN

VIOLATED, HE WILL NOW IMMEDIATELY SUE THE FEDERAL OFFICER IN FEDERAL

COURT.  THIS WILL TEND TO STULTIFY PROPER LAW ENFORCEMENT AND TO MAKE

THE DAY'S LABOR FOR THE HONEST AND CONSCIENTIOUS OFFICER EVEN MORE

ONEROUS AND MORE CRITICAL.  WHY THE COURT MOVES IN THIS DIRECTION AT

THIS TIME OF OUR HISTORY, I DO NOT KNOW.  THE FOURTH AMENDMENT WAS

ADOPTED IN 1791, AND IN ALL THE INTERVENING YEARS NEITHER THE CONGRESS

NOR THE COURT HAS SEEN FIT TO TAKE THIS STEP.  I HAD THOUGHT THAT FOR

THE TRULY AGGRIEVED PERSON OTHER QUITE ADEQUATE REMEDIES HAVE ALWAYS

BEEN AVAILABLE.  IF NOT, IT IS THE CONGRESS AND NOT THIS COURT THAT

SHOULD ACT. 



STEPHEN A. GRANT ARGUED THE CAUSE AND FILED A BRIEF FOR PETITIONER. 



JEROME FEIT ARGUED THE CAUSE FOR RESPONDENTS.  ON THE BRIEF WERE

SOLICITOR GENERAL GRISWOLD, ASSISTANT ATTORNEY GENERAL RUCKELSHAUS, AND

ROBERT V. ZENER. 



MELVIN L. WULF FILED A BRIEF FOR THE AMERICAN CIVIL LIBERTIES UNION

AS AMICUS CURIAE URGING REVERSAL. 

..END :






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