06/21/71 BIVENS v.

SIX UNKNOWN NAMED AGENTS FEDERAL

[1] SUPREME COURT OF THE UNITED STATES

[2] No. 301

[3] [Link].2217 <[Link] 403 U.S. 388, 91 S. Ct.

1999, 29 L. Ed. 2d 619

[4] June 21, 1971

[5] BIVENS
v.
SIX UNKNOWN NAMED AGENTS OF FEDERAL BUREAU OF
NARCOTICS

[6] CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

[7] Stephen A. Grant argued the cause and filed a brief for petitioner.

[8] Jerome Feit argued the cause for respondents. On the brief were
Solicitor General Griswold, Assistant Attorney General Ruckelshaus,
and Robert V. Zener.

[9] Melvin L. Wulf filed a brief for the American Civil Liberties Union as
amicus curiae urging reversal.

[10] 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.
[11] The opinion of the court was delivered by: Brennan

[12] 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 :

[13] 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.

[14] 2. The Court does not reach the immunity question, which was not
passed on by the Court of Appeals. Pp. 397-398.

[15] MR. JUSTICE BRENNAN delivered the opinion of the Court.

[16] The Fourth Amendment provides that:

[17] "The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated . . . ."

[18] 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.

[19] 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 apartment from stem to stern. Thereafter,
petitioner was taken to the federal courthouse in Brooklyn, where he
was interrogated, booked, and subjected to a visual strip search.

[20] 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. *fn1 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. *fn2 276 [Link]. 12 (EDNY
1967). The Court of Appeals, one Judge Concurring specially, *fn3
affirmed on that basis. 409 F.2d 718 (CA2 1969). We granted
certiorari. 399 U.S. 905 (1970). We reverse.

[21] I

[22] 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, *fn4
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.
[23] 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.).

[24] 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. *fn5 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 (emphasis added). *fn6 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.

[25] 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 § 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. *fn7 "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). *fn8 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).

[26] 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); J. 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 counseling 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 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
by a 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.

[27] II

[28] 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 [Link]., 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.

[29] So ordered.

[30] JUSTICE HARLAN, Concurring in the judgment.

[31] 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.

[32] 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, *fn1 under 28 U. S. C. § 1331 (a)
which provides:

[33] "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."

[34] 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 [Link] 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 " 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).

[35] In so concluding, Chief Judge Lumbard's opinion reasoned, in essence,

that: (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.

[36] 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.

[37] I

[38] 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, *fn2 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).

[39] 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). *fn3 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.

[40] II

[41] 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). *fn4

[42] 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 commonlaw 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.

[43] 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, § 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. *fn5

[44] 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. *fn6 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.

[45] III

[46] 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.

[47] These arguments for a more stringent test to govern the grant of
damages in constitutional cases *fn7 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.

[48] 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. *fn8 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.

[49] 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 invasion of Fourth
Amendment rights. *fn9

[50] 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).
[51] 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.

[52] 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.

[53] 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.

[54] 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.

[55] For these reasons, I concur in the judgment of the Court.

[56] MR. CHIEF JUSTICE BURGER, Dissenting.

[57] 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:
*fn1

[58] "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."

[59] 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). *fn2 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.

[60] 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:

[61] "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). *fn3

[62] The plurality opinion in Irvine v. California, 347 U.S. 128, 136 (1954),
catalogued the doctrine's defects:

[63] "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."

[64] 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.

[65] 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).

[66] 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).

[67] 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.
[68] 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).

[69] 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.

[70] 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).

[71] 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.

[72] 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:

[73] "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." (Emphasis added.)

[74] 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.

[75] 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.
*fn4 Nor can Judges, in all candor, forget that opinions sometimes lack
helpful clarity.

[76] 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.
[77] 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.

[78] 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.

[79] 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 non-lawyers in this country and
lawyers, Judges, and legal scholars the world over.

[80] 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.

[81] 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 §
SS 8.02 (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:

[82] "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).

[83] 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.

[84] 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.

[85] 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.

[86] 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.

[87] 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.

[88] 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
quasi-judicial 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 Torts § 68, pp.
470-480 (3d ed. 1964). *fn5 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.

[89] A simple structure would suffice. *fn6 For example, Congress could
enact a statute along the following lines:

[90] (a) a waiver of sovereign immunity as to the illegal acts of law

enforcement officials committed in the performance of assigned duties;

[91] (b) the creation of a cause of action for damages sustained by any
person aggrieved by conduct of governmental agents in violation of the
Fourth Amendment or statutes regulating official conduct;

[92] (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;

[93] (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

[94] (e) a provision directing that no evidence, otherwise admissible, shall

be excluded from any criminal proceeding because of violation of the
Fourth Amendment.

[95] 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 district courts and regulatory
agencies. This would leave to the courts the ultimate responsibility for
determining and articulating standards.

[96] Once the constitutional validity of such a statute is established, *fn7 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.

[97] 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.
[98] APPENDIX TO OPINION OF BURGER, C. J., DISSENTING

[99] 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:

[100] "(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:

[101] "(a) the importance of the particular interest violated;

[102] "(b) the extent of deviation from lawful conduct;

[103] "(c) the extent to which the violation was willful;

[104] "(d) the extent to which privacy was invaded;

[105] "(e) the extent to which exclusion will tend to prevent violations of
this Code;

[106] "(f) whether, but for the violation, the things seized would have been
discovered; and

[107] "(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.

[108] "(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 search or 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."

[109] ALI, Model Code of Pre-Arraignment Procedure §§ SS 8.02 (2), (3),

pp. 23-24 (Tent. Draft No. 4, 1971) (emphasis supplied).

[110] The Reporters' views on the exclusionary rule are also reflected in their
comment on the proposed section:

[111] "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.

[112] This is but one of many expressions of disenchantment with the

exclusionary rule; see also:

[113] 1. Barrett, Exclusion of Evidence Obtained by Illegal Searches -- A

Comment on People vs. Cahan, 43 Calif. L. Rev. 565 (1955).

[114] 2. Burns, Mapp v. Ohio : An All-American Mistake, 19 DePaul L.

Rev. 80 (1969).

[115] 3. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53

Calif. L. Rev. 929, 951-954 (1965).

[116] 4. F. Inbau, J. Thompson, & C. Sowle, Cases and Comments on

Criminal Justice: Administration 1-84 (3d ed. 1968).
[117] 5. LaFave, Improving Police Performance Through the Exclusionary
Rule (pts. 1 & 2), 30 Mo. L. Rev. 391, 566 (1965).

[118] 6. LaFave & Remington, Controlling the Police: The Judge's Role in
Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev.
987 (1965).

[119] 7. N. Morris & G. Hawkins, The Honest Politician's Guide to Crime

Control 101 (1970).

[120] 8. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.

Chi. L. Rev. 665 (1970).

[121] 9. Plumb, Illegal Enforcement of the Law, 24 Cornell L. Q. 337 (1939).

[122] 10. Schaefer, The Fourteenth Amendment and Sanctity of the Person,
64 Nw. U. L. Rev. 1 (1969).

[123] 11. Waite, Judges and the Crime Burden, 54 Mich. L. Rev. 169 (1955).

[124] 12. Waite, Evidence -- Police Regulation by Rules of Evidence, 42

Mich. L. Rev. 679 (1944).

[125] 13. Wigmore, Using Evidence Obtained by Illegal Search and Seizure,
8 A. B. A. J. 479 (1922).

[126] 14. 8 J. Wigmore, Evidence § 2184a (McNaughton rev. 1961).

[127] JUSTICE BLACK, Dissenting.

[128] 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,* 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.

[129] 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.

[130] 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.

[131] 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.

[132] I Dissent.

[133] JUSTICE BLACKMUN, Dissenting.

[134] 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.

Opinion Footnotes

[135] *fn1 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.

[136] *fn2 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 ." App. 3. Five
agents were ultimately served.

[137] *fn3 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 (emphasis in original).

[138] *fn4 "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.

[139] *fn5 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. § 183 (1958) for codification of the rule. Conspiracy to
commit a federal crime was at the time a felony. Act of March 4, 1909,
§ 37, 35 Stat. 1096.

[140] *fn6 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).

[141] *fn7 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).

[142] *fn8 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 § 12-7-10 (1969); State v. Koonce, 89 N. J.
Super. 169, 180-184, 214 A. 2d 428, 433-436 (1965).
[143] CONCURRING FOOTNOTES

[144] 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).

[145] 2 See n. 3, (infra).

[146] 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:

[147] "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."

[148] 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.

[149] 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).

[150] 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, § 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 the Fourth
Amendment.

[151] 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.

[152] 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 § 14 (a) of the Securities Exchange Act of
1934, 48 Stat. 895, 15 U. S. C. § 78n (a). See § 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.

[153] 5 With regard to a court's authority to grant an equitable remedy, the

line between "subject matter" jurisdiction and remedial powers has
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 [Link]. 813, 819
(SD Cal. 1947).

[154] 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:

[155] "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.

[156] 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.

[157] 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.

[158] 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.

[159] *fn9 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).

[160] 1 J. Thayer, O. Holmes, & F. Frankfurter, John Marshall 88 (Phoenix

ed. 1967).

[161] 2 The Court reached the issue of applying the Weeks doctrine to the
States sua sponte.
 [162] 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).

[163] 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 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.

[164] 5 Damage verdicts for such acts are often sufficient in size to provide
an effective deterrent and stimulate employers to corrective action.

[165] 6 Electronic eavesdropping presents special problems. See 18 U. S. C.

§§ 2510-2520 (1964 ed., Supp. V).

[166] 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.

[167] * "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. § 1979, 42 U. S. C. § 1983.

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