Opinion

JUSTICE O'CONNOR, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.

The Court today extends the good faith exception to the Fourth Amendment exclusionary rule, United States v. Leon, 468 U. S. 897 (1984), in order to provide a grace period for unconstitutional search and seizure legislation during which the State is permitted to violate constitutional requirements with impunity. Leon's rationale does not support this extension of its rule, and the Court is unable to give any independent reason in defense of this departure from established precedent. Accordingly, I respectfully dissent.

The Court, ante at 480 U. S. 348, accurately summarizes Leon's holding:

In Leon, the Court held that the exclusionary rule should not be applied to evidence obtained by a police officer whose reliance on a search warrant issued by a neutral magistrate was objectively reasonable, even though the warrant was ultimately found to be defective. The Court also accurately summarizes the reasoning supporting this conclusion as based upon three factors: the historic purpose of the exclusionary rule, the absence of evidence suggesting that judicial officers are inclined to ignore Fourth Amendment limitations, and the absence of any basis for believing that the exclusionary rule significantly deters Fourth Amendment violations by judicial officers in the search warrant context. Ibid. In my view, application of Leon's stated rationales leads to a contrary result in this case.

I agree that the police officer involved in this case acted in objective good faith in executing the search pursuant to Ill.Rev.Stat., ch. 95 1/2, 5-401(e) (1981) (repealed 1985). Ante at 480 U. S. 360. And, as the Court notes, ante at 480 U. S. 357, n. 13, the correctness of the Illinois Supreme Court's finding that this statute violated the Fourth Amendment is not in issue here. Thus, this case turns on the effect to be given to statutory authority for an unreasonable search.

Unlike the Court, I see a powerful historical basis for the exclusion of evidence gathered pursuant to a search authorized by an unconstitutional statute. Statutes authorizing unreasonable searches were the core concern of the framers of the Fourth Amendment. This Court has repeatedly noted that reaction against the ancient Act of Parliament authorizing indiscriminate general searches by writ of assistance, 7 & 8 Wm. III, c. 22, § 6 (1696), was the moving force behind the Fourth Amendment. Payton v. New York, 445 U. S. 573, 445 U. S. 583 -584, and n. 21 (1980); Stanford v. Texas, 379 U. S. 476, 379 U. S. 481 -482 (1965); Boyd v. United States, 116 U. S. 616, 116 U. S. 624 -630 (1886). James Otis' argument to the royal Superior Court in Boston against such overreaching laws is as powerful today as it was in 1761:

... I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.... * * * *" ... It is a power, that places the liberty of every man in the hands of every petty officer....... No Acts of Parliament can establish such a writ; though it should be made in the very words of the petition, it would be void. An act against the constitution is void.

Almost 150 years after Otis' argument, this Court determined that evidence gathered in violation of the Fourth Amendment would be excluded in federal court. Weeks v. United States, 232 U. S. 383 (1914). In Mapp v. Ohio, 367 U. S. 643 (1961), the rule was further extended to state criminal trials. This exclusionary rule has, of course, been regularly applied to evidence gathered under statutes that authorized unreasonable searches. See, e.g., Ybarra v. Illinois, 444 U. S. 85 (1979) (statute authorized search and detention of persons found on premises being searched pursuant to warrant); Torres v. Puerto Rico, 442 U. S. 465 (1979) (statute authorized search of luggage of persons entering Puerto Rico); Almeida-Sanchez v. United States, 413 U. S. 266 (1973) (statute authorized search of automobiles without probable cause within border areas); Sibron v. New York, 392 U. S. 40 (1968) (statute authorized frisk absent constitutionally required suspicion that officer was in danger); Berger v. New York, 388 U. S. 41 (1967) (permissive eavesdrop statute). Indeed, Weeks itself made clear that the exclusionary rule was intended to apply to evidence gathered by officers acting under "legislative... sanction." Weeks v. United States, supra, at 232 U. S. 394.

Leon, on its face, did not purport to disturb these rulings.

'Those decisions involved statutes which, by their own terms, authorized searches under circumstances which did not satisfy the traditional warrant and probable cause requirements of the Fourth Amendment.' Michigan v. DeFillippo, 443 U.S. at 443 U. S. 39. The substantive Fourth Amendment principles announced in those cases are fully consistent with our holding here.

United States v. Leon, 468 U.S. at 468 U. S. 912, n. 8. In short, both the history of the Fourth Amendment and this Court's later interpretations of it support application of the exclusionary rule to evidence gathered under the 20th-century equivalent of the Act authorizing the writ of assistance.

This history also supplies the evidence that Leon demanded for the proposition that the relevant state actors, here legislators, might pose a threat to the values embodied in the Fourth Amendment. Legislatures have, upon occasion, failed to adhere to the requirements of the Fourth Amendment, as the cited cases illustrate. Indeed, as noted, the history of the Amendment suggests that legislative abuse was precisely the evil the Fourth Amendment was intended to eliminate. In stark contrast, the framers did not fear that judicial officers, the state actors at issue in Leon, posed a serious threat to Fourth Amendment values. James Otis is as clear on this point as he was in denouncing the unconstitutional Act of Parliament:

In the first place, may it please your Honors, I will admit that writs of one kind may be legal; that is, special writs, directed to special officers, and to search certain houses, &c.; specially set forth in the writ, may be granted by the Court of Exchequer at home, upon oath made before the Lord Treasurer by the person who asks it, that he suspects such goods to be concealed in those very places he desires to search.

Moreover, the Leon Court relied explicitly on the tradition of judicial independence in concluding that, until it was presented with evidence to the contrary, there was relatively little cause for concern that judicial officers might take the opportunity presented by the good faith exception to authorize unconstitutional searches.

Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.

United States v. Leon, supra, at 468 U. S. 917. Unlike police officers, judicial officers are not "engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10, 333 U. S. 14 (1948). The legislature's objective in passing a law authorizing unreasonable searches, however, is explicitly to facilitate law enforcement. Fourth Amendment rights have at times proved unpopular; it is a measure of the framers' fear that a passing majority might find it expedient to compromise Fourth Amendment values that these values were embodied in the Constitution itself. Bram v. United States, 168 U. S. 532, 168 U. S. 544 (1897). Legislators, by virtue of their political role, are more often subjected to the political pressures that may threaten Fourth Amendment values than are judicial officers.

Finally, I disagree with the Court that there is "no reason to believe that applying the exclusionary rule" will deter legislation authorizing unconstitutional searches. Ante at 480 U. S. 352 -352.

The inevitable result of the Constitution's prohibition against unreasonable searches and seizures and its requirement that no warrant shall issue but upon probable cause is that police officers who obey its strictures will catch fewer criminals.

Stewart, 83 Colum.L.Rev. 1365, 1393 (1983). Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws. Cf. Weeks v. United States, 232 U.S. at 232 U. S. 392 -393. While I heartily agree with the Court that legislators ordinarily do take seriously their oaths to uphold the Constitution and that it is proper to presume that legislative Acts are constitutional, ante at 480 U. S. 351, it cannot be said that there is no reason to fear that a particular legislature might yield to the temptation offered by the Court's good faith exception.

Accordingly, I find that none of Leon's stated rationales, see ante at 480 U. S. 348, supports the Court's decision in this case. History suggests that the exclusionary rule ought to apply to the unconstitutional legislatively authorized search, and this historical experience provides a basis for concluding that legislatures may threaten Fourth Amendment values. Even conceding that the deterrent value of the exclusionary rule in this context is arguable, I am unwilling to abandon both history and precedent weighing in favor of suppression. And if I were willing, I still could not join the Court's opinion, because the rule it adopts is both difficult to administer and anomalous.

The scope of the Court's good faith exception is unclear. Officers are to be held not

to have acted in good faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional. Cf. Harlow v. Fitzgerald, 457 U. S. 800, 457 U. S. 818 (1982).

Ante at 480 U. S. 355. I think the Court errs in importing Harlow's "clearly established law" test into this area, because it is not apparent how much constitutional law the reasonable officer is expected to know. In contrast, Leon simply instructs courts that police officers may rely upon a facially valid search warrant. Each case is a fact-specific, self-terminating episode. Courts need not inquire into the officer's probable understanding of the state of the law except in the extreme instance of a search warrant upon which no reasonable officer would rely. Under the decision today, however, courts are expected to determine at what point a reasonable officer should be held to know that a statute has, under evolving legal rules, become "clearly" unconstitutional. The process of clearly establishing constitutional rights is a long, tedious, and uncertain one. Indeed, as the Court notes, ante at 480 U. S. 357, n. 13, the unconstitutionality of the Illinois statute is not clearly established to this day. The Court has granted certiorari on the question of the constitutionality of a similar statutory scheme in New York v. Burger, 479 U. S. 482 (1986). Thus, some six years after the events in question in this case, the constitutionality of statutes of this kind remains a fair ground for litigation. Nothing justifies a grace period of such extraordinary length for an unconstitutional legislative act.

The difficulties in determining whether a particular statute violates clearly established rights are substantial. See 5 K. Davis, Administrative Law Treatise § 27:24, p. 130 (2d ed. 1984) ("The most important effect of [ Davis v. Scherer, 468 U. S. 183 (1984)] on future law relates to locating the line between established constitutional rights and clearly established constitutional rights. In assigning itself the task of drawing such a line, the Court may be attempting the impossible. Law that can be clearly stated in the abstract usually becomes unclear when applied to variable and imperfectly understood facts...."). The need for a rule so difficult of application outside the civil damages context is, in my view, dubious. The Court has determined that fairness to the defendant, as well as public policy, dictates that individual government officers ought not be subjected to damages suits for arguable constitutional violations. Harlow v. Fitzgerald, 457 U. S. 800, 457 U. S. 807 (1982) (citing Butz v. Economou, 438 U. S. 478, 438 U. S. 506 (1978)). But suppression of illegally obtained evidence does not implicate this concern.

Finally, I find the Court's ruling in this case at right angles, if not directly at odds, with the Court's recent decision in Griffith v. Kentucky, 479 U. S. 314 (1987). In Griffith, the Court held that "basic norms of constitutional adjudication" and fairness to similarly situated defendants, id. at 479 U. S. 322, require that we give our decisions retroactive effect to all cases not yet having reached final, and unappealable, judgment. While the extent to which our decisions ought to be applied retroactively has been the subject of much debate among members of the Court for many years, id. at 479 U. S. 320 -326, there has never been any doubt that our decisions are applied to the parties in the case before the Court. Stovall v. Denno, 388 U. S. 293, 388 U. S. 301 (1967). The novelty of the approach taken by the Court in this case is illustrated by the fact that, under its decision today, no effective remedy is to be provided in the very case in which the statute at issue was held unconstitutional. I recognize that the Court today, as it has done in the past, divorces the suppression remedy from the substantive Fourth Amendment right. See United States v. Leon, 468 U.S. at 468 U. S. 905 -908. This Court has held that the exclusionary rule is a

judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.

United States v. Calandra, 414 U. S. 338, 414 U. S. 348 (1974). Moreover, the exclusionary remedy is not made available in all instances when Fourth Amendment rights are implicated. See, e.g., 428 U. S. S. 369 v. Powell, 428 U. S. 465 (1976) (barring habeas corpus review of Fourth Amendment suppression claims); United States v. Janis, 428 U. S. 433 (1976) (no suppression remedy for state Fourth Amendment violations in civil proceedings by or against the United States). Nevertheless, the failure to apply the exclusionary rule in the very case in which a state statute is held to have violated the Fourth Amendment destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights. In my view, whatever "basic norms of constitutional adjudication," Griffith v. Kentucky, supra, at 479 U. S. 322 , otherwise require, surely they mandate that a party appearing before the Court might conceivably benefit from a judgment in his favor. The Court attempts to carve out a proviso to its good faith exception for those cases in which "the legislature wholly abandoned its responsibility to enact constitutional laws." Ante@ at 480 U. S. 355. Under what circumstances a legislature can be said to have "wholly abandoned" its obligation to pass constitutional laws is not apparent on the face of the Court's opinion. Whatever the scope of the exception, the inevitable result of the Court's decision to deny the realistic possibility of an effective remedy to a party challenging statutes not yet declared unconstitutional is that a chill will fall upon enforcement and development of Fourth Amendment principles governing legislatively authorized searches. For all these reasons, I respectfully dissent.

Notes

2 Works of John Adams 523-525 (C. Adams ed.1850). See Paxton's Case, Quincy 51 (Mass. 1761). James Otis lost the case he argued; and, even had he won it, no exclusionary rule existed to prevent the admission of evidence gathered pursuant to a writ of assistance in a later trial. But history's court has vindicated Otis. The principle that no legislative Act can authorize an unreasonable search became embodied in the Fourth Amendment.

2 Works of John Adams 524 (C. Adams ed.1850). The distinction drawn between the legislator and the judicial officer is sound. The judicial role is particularized, fact-specific, and nonpolitical. Judicial authorization of a particular search does not threaten the liberty of everyone, but rather authorizes a single search under particular circumstances. The legislative Act, on the other hand, sweeps broadly, authorizing whole classes of searches, without any particularized showing. A judicial officer's unreasonable authorization of a search affects one person at a time; a legislature's unreasonable authorization of searches may affect thousands or millions, and will almost always affect more than one. Certainly the latter poses a greater threat to liberty.