MEDINA, Circuit Judge (with whom LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, KAUFMAN and HAYS, Circuit Judges, concur) :
George Angelet, having exhausted his state remedies, petitioned for federal ha-beas corpus on the ground that his state court conviction, in 1951, for possession of narcotics with intent to sell, was obtained through admission of evidence allegedly seized in an unreasonable search and seizure prohibited by the Fourth and Fourteenth Amendments. Assuming, arguendo, that the search and seizure was conducted in violation of the Constitution, Judge Palmieri nevertheless denied the petition, as he concluded that the exclusionary rule of Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, ought not to be applied retroactively.
After the appeal was heard by a panel consisting of Judges Medina, Waterman and Marshall, the qualified judges of this [14]*14Court agreed that the appeal should be considered in banc.
We have examined the transcript of the trial of Angelet with some care and find the search and seizure was illegal and an invasion of Angelet’s constitutional rights. On December 21, 1950 two detectives attached to the Narcotics Squad of the New York City Police Department entered Angelet’s apartment by a door opened by a painter who was just leaving. Angelet’s rather mild protest was brushed aside, no warrant was produced, and the detectives, together with an agent of the Federal Bureau of Narcotics and his associate, who were summoned by telephone, completely ransacked the apartment. There is nothing to indicate that the officers sought or obtained permission to enter the apartment or that the detectives announced their presence before entering. The search could not have been incidental to an arrest as no arrest was made until after the search had been concluded, when one of the detectives said: “All right, George, you’re under arrest. You better get dressed, and put your clothes on.”
It was noon when the search was made, and there was no physical coercion, violence or brutality of any kind. Nevertheless, there was a plain and unwarranted invasion of Angelet’s home and everything in the apartment was thoroughly rifled and examined. One of the detectives found in a drawer of the dresser fifty-four cellophane envelopes (introduced at the trial as Exhibit 1), one hundred and six empty capsules (Exhibit 2), a stapling machine (Exhibit 3), a box of staples (Exhibit 4), and a scale (Exhibit 5). The federal agent found under a hat four packages (Exhibits 6, 7, 8 and 9). Three of these packages contained heroin and the other contained eighteen capsules of cocaine.
The search of Angelet’s apartment, the subsequent trial and the appeal therefrom all occurred after the decision of the Supreme Court in Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, but before the events which directly led to the Supreme Court decision in Mapp v. Ohio, supra, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Thus, it was already clear, at that time, that the Fourteenth Amendment prohibited unreasonable searches and yet it was also plain that the evidence produced by such a search, under the view then prevailing in the Supreme Court, was admissible in a state court prosecution, if state law so provided.
Perhaps there is no totally satisfying solution to the exceedingly difficult problem of whether the exclusionary rule announced in Mapp v. Ohio should be applied to all criminal trials which preceded that decision. Compare United States ex rel. Linkletter v. Walker, 5 Cir., 1963, 323 F.2d 11, cert. granted, 1964, 84 S.Ct. 1340, Sisk v. Lane, 7 Cir., 1964, 331 F.2d 235, and Gaitan v. United States, 10 Cir., 1963, 317 F.2d 494, with People v. Hurst, 9 Cir., 1963, 325 F.2d 891, and Hall v. Warden, 4 Cir., 1963, 313 F.2d 483, cert. denied, 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032. On balance, however, we conclude that neither the purpose of the exclusionary rule nor the sound administration of the criminal law would be advanced by overturning the conviction of Angelet and that no serious philosophical obstacle prevents us from affirming the denial of the writ of habeas corpus.
I
Preliminary Comment
It is not surprising that there has been discussion of various phases of the situation from which inferences have been drawn concerning the attitude of the Supreme Court on the question of the retroactivity of Mapp v. Ohio at the time the decision was filed. For example, the Court may have doubted its power to make an ex cathedra prediction, and therefore chose not to reach the issue of its power under the Constitution to overrule a prior holding except when necessary to decide an actual case or controversy. See Comment, 1962, 71 Yale L.J. 907, 930-933. It may be that, as the [15]*15application of the new doctrine to Miss Mapp was retroactive in the sense that the occurrences took place some years before the decision, logic requires the court to apply the doctrine retroactively as to all persons previously convicted by the admission of such evidence. It has been suggested that review of any conviction which had not yet become final at the time of the Mapp decision could have been the vehicle for overruling Wolf, and that, therefore, it would be unfair to deny relief to the defendants in those eases simply because Wolf was overruled at an earlier date. See United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, 19, cert. granted, 1964, 84 S.Ct. 1340; Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 1962, 110 U.Pa. L.Rev. 650, 673-678. Perhaps for this reason, the rule of Mapp v. Ohio has been applied by the Supreme Court on direct review of convictions not yet final at the time Mapp was decided. See Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Fahy v. Connecticut, 1963, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; Stoner v. California, 1964, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856.
There has been speculation as to the relevancy to our problem of the circumstance that Wolf was overruled in a case involving direct review of a conviction rather than in a collateral post-conviction proceeding. See Bender, supra, 110 U. Pa.L.Rev. 650, 679 n. 92. Compare Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
It is even argued that this ease presents no real question of retroactivity because Wolf v. Colorado, decided before the search of Angelet’s apartment, had already made it clear that the search violated Angelet’s constitutional rights and Mapp v. Ohio merely removed a procedural bar to the assertion of those rights.
The discussion thus summarized, and there is much more to the same effect, adds up to more or less reasonable guesswork on the subject of the intention lurking in the minds of the learned justices at the time the opinions in Mapp v. Ohio were filed on June 19, 1961. The plain fact remains that none of the opinions gives any sure indication that the Court entertained at the time of filing any view on the subject of general retroactivity. See United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, 15-16 (and cases and other authorities there cited), cert. granted, 1964, 84 S.Ct. 1340. It is far more reasonable to assume that the Court was fully aware of the difficulty of the question and preferred to decide it only after there had been an interval in which courts and legal scholars might have ample time to weigh the pros and cons.
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MEDINA, Circuit Judge (with whom LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, KAUFMAN and HAYS, Circuit Judges, concur) :
George Angelet, having exhausted his state remedies, petitioned for federal ha-beas corpus on the ground that his state court conviction, in 1951, for possession of narcotics with intent to sell, was obtained through admission of evidence allegedly seized in an unreasonable search and seizure prohibited by the Fourth and Fourteenth Amendments. Assuming, arguendo, that the search and seizure was conducted in violation of the Constitution, Judge Palmieri nevertheless denied the petition, as he concluded that the exclusionary rule of Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, ought not to be applied retroactively.
After the appeal was heard by a panel consisting of Judges Medina, Waterman and Marshall, the qualified judges of this [14]*14Court agreed that the appeal should be considered in banc.
We have examined the transcript of the trial of Angelet with some care and find the search and seizure was illegal and an invasion of Angelet’s constitutional rights. On December 21, 1950 two detectives attached to the Narcotics Squad of the New York City Police Department entered Angelet’s apartment by a door opened by a painter who was just leaving. Angelet’s rather mild protest was brushed aside, no warrant was produced, and the detectives, together with an agent of the Federal Bureau of Narcotics and his associate, who were summoned by telephone, completely ransacked the apartment. There is nothing to indicate that the officers sought or obtained permission to enter the apartment or that the detectives announced their presence before entering. The search could not have been incidental to an arrest as no arrest was made until after the search had been concluded, when one of the detectives said: “All right, George, you’re under arrest. You better get dressed, and put your clothes on.”
It was noon when the search was made, and there was no physical coercion, violence or brutality of any kind. Nevertheless, there was a plain and unwarranted invasion of Angelet’s home and everything in the apartment was thoroughly rifled and examined. One of the detectives found in a drawer of the dresser fifty-four cellophane envelopes (introduced at the trial as Exhibit 1), one hundred and six empty capsules (Exhibit 2), a stapling machine (Exhibit 3), a box of staples (Exhibit 4), and a scale (Exhibit 5). The federal agent found under a hat four packages (Exhibits 6, 7, 8 and 9). Three of these packages contained heroin and the other contained eighteen capsules of cocaine.
The search of Angelet’s apartment, the subsequent trial and the appeal therefrom all occurred after the decision of the Supreme Court in Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, but before the events which directly led to the Supreme Court decision in Mapp v. Ohio, supra, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. Thus, it was already clear, at that time, that the Fourteenth Amendment prohibited unreasonable searches and yet it was also plain that the evidence produced by such a search, under the view then prevailing in the Supreme Court, was admissible in a state court prosecution, if state law so provided.
Perhaps there is no totally satisfying solution to the exceedingly difficult problem of whether the exclusionary rule announced in Mapp v. Ohio should be applied to all criminal trials which preceded that decision. Compare United States ex rel. Linkletter v. Walker, 5 Cir., 1963, 323 F.2d 11, cert. granted, 1964, 84 S.Ct. 1340, Sisk v. Lane, 7 Cir., 1964, 331 F.2d 235, and Gaitan v. United States, 10 Cir., 1963, 317 F.2d 494, with People v. Hurst, 9 Cir., 1963, 325 F.2d 891, and Hall v. Warden, 4 Cir., 1963, 313 F.2d 483, cert. denied, 374 U.S. 809, 83 S.Ct. 1693, 10 L.Ed.2d 1032. On balance, however, we conclude that neither the purpose of the exclusionary rule nor the sound administration of the criminal law would be advanced by overturning the conviction of Angelet and that no serious philosophical obstacle prevents us from affirming the denial of the writ of habeas corpus.
I
Preliminary Comment
It is not surprising that there has been discussion of various phases of the situation from which inferences have been drawn concerning the attitude of the Supreme Court on the question of the retroactivity of Mapp v. Ohio at the time the decision was filed. For example, the Court may have doubted its power to make an ex cathedra prediction, and therefore chose not to reach the issue of its power under the Constitution to overrule a prior holding except when necessary to decide an actual case or controversy. See Comment, 1962, 71 Yale L.J. 907, 930-933. It may be that, as the [15]*15application of the new doctrine to Miss Mapp was retroactive in the sense that the occurrences took place some years before the decision, logic requires the court to apply the doctrine retroactively as to all persons previously convicted by the admission of such evidence. It has been suggested that review of any conviction which had not yet become final at the time of the Mapp decision could have been the vehicle for overruling Wolf, and that, therefore, it would be unfair to deny relief to the defendants in those eases simply because Wolf was overruled at an earlier date. See United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, 19, cert. granted, 1964, 84 S.Ct. 1340; Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 1962, 110 U.Pa. L.Rev. 650, 673-678. Perhaps for this reason, the rule of Mapp v. Ohio has been applied by the Supreme Court on direct review of convictions not yet final at the time Mapp was decided. See Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Fahy v. Connecticut, 1963, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; Stoner v. California, 1964, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856.
There has been speculation as to the relevancy to our problem of the circumstance that Wolf was overruled in a case involving direct review of a conviction rather than in a collateral post-conviction proceeding. See Bender, supra, 110 U. Pa.L.Rev. 650, 679 n. 92. Compare Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
It is even argued that this ease presents no real question of retroactivity because Wolf v. Colorado, decided before the search of Angelet’s apartment, had already made it clear that the search violated Angelet’s constitutional rights and Mapp v. Ohio merely removed a procedural bar to the assertion of those rights.
The discussion thus summarized, and there is much more to the same effect, adds up to more or less reasonable guesswork on the subject of the intention lurking in the minds of the learned justices at the time the opinions in Mapp v. Ohio were filed on June 19, 1961. The plain fact remains that none of the opinions gives any sure indication that the Court entertained at the time of filing any view on the subject of general retroactivity. See United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, 15-16 (and cases and other authorities there cited), cert. granted, 1964, 84 S.Ct. 1340. It is far more reasonable to assume that the Court was fully aware of the difficulty of the question and preferred to decide it only after there had been an interval in which courts and legal scholars might have ample time to weigh the pros and cons. We find nothing to the contrary in the quotations from Mapp in Judge Marshall’s dissenting opinion herein, including the reference to footnote 9.
As we have concluded that the question has been held open and that the expression of our views will be welcomed, we have filed this opinion although fully aware of the fact that certiorari has been granted in Linkletter.
II
The Philosophical Aspect of the Case
There are two arguments supporting the view that we have no alternative other than to give general retroactive effect to the exclusionary rule. The first stems from the Blaekstonian theory, recently described by this Court as “the splendid myth of ‘discovered law,’ 1 Blackstone, Commentaries 70.” Durocher v. LaVallee, 2 Cir., 1964, 330 F.2d 303, at page 312.
The argument is advanced, on these premises, that one and only one interpretation of the Fourteenth Amendment is correct for all times and, as the most recent interpretation would be the most authoritative, the rule of Wolf v. Colorado, permitting the admission of unlawfully seized evidence, never was law; whereas the rule of Mapp v. Ohio, requiring the exclusion of such evidence, has always been the law. Accordingly, peti[16]*16tioner would have us conclude that he is entitled to the writ on the ground that, at the time of his trial, the admission of the search and seizure evidence violated the Constitution.
This theory has been repeatedly criticized (see, e. g., Cardozo, The Nature of the Judicial Process (1921); Levy, Realist Jurisprudence and Prospective Overruling, 1960, 109 U.Pa.L.Rev. 1; Comment, Prospective Overruling and Retroactive Application in the Federal Courts, 1962, 71 Yale L.J. 907; see also Snyder, Retrospective Operation of Overruling Decisions, 1940, 35 Ill.L.Rev. 121) and we think the time has come to reject it. See United States ex rel. Linkletter v. Walker, supra, 1963, 323 F.2d 11; Great Northern Railway v. Sunburst Oil & Refining Co., 1932, 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360; Chicot County Drainage District v. Baxter State Bank, 1940, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329. In any realistic view of the case before us, the law, both state and federal, at the time of the trial of Angelet made admissible the evidence procured by the unreasonable search and seizure. For that reason we cannot construe Angelet’s failure to object to the evidence as a waiver.
The other argument is, we are here dealing with a constitutional question, and we have no alternative other than to give the new doctrine the widest possible scope. It is pointed out that where constitutional rights are violated prejudice is presumed.1 It is our view, however, that the development of constitutional law calls into play precisely the same operations of the judicial process as does the development of a body of decisional law in any other field. The extent to which the new doctrine is to be applied should depend, in the language of Mr. Justice Cardozo, upon “considerations of convenience, of utility, and of the deepest sentiments of justice.” United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, footnote 5, cert. granted 1964, 84 S.Ct. 1340. There is no rule of thumb, nor should there be. It is the burden of this opinion to attempt to demonstrate that, by Mr. Justice Cardozo’s test, the Mapp v. Ohio doctrine should not be given general retroactive effect.
As we view the problem, there is now at stake one of the most important principles of constitutional interpretation. It has been the proud boast of the most distinguished of our American jurists that the federal Constitution, and especially the Bill of Rights, including the Fourteenth Amendment, is not a rigid aggregation of fundamental rules but a dynamic and flexible document, to be interpreted from time to time to conform to the social and economic needs of a changing society in a modern world. See, e. g., Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (Mr. Chief Justice Warren) ; United States v. Classic, 1941, 313 U.S. 299, 315-316, 61 S.Ct. 1031, 85 L.Ed. 1368 (Mr. Justice Stone) ; Olmstead v. United States, 1928, 277 U.S. 438, 471-479, 48 S.Ct. 564, 72 L.Ed. 944 (Mr. Justice Brandeis dissenting); Gompers v. United States, 1914, 233 U.S. 604, 610, 34 S.Ct. 693, 58 L.Ed. 1115 (Mr. Justice Holmes); Weems v. United States, 1910, 217 U.S. 349, 373-374 (Mr. Justice McKenna) ; McCulloch v. Maryland, 1819, 17 U.S. 316, 407, 415 (Mr. Chief Justice Marshall); Martin v. Hunter’s Lessee, 1816, 14 U.S. 304, 326-327, (Mr. Justice Story). We shall return to this subject later.
We do not doubt the power of the judicial establishment to decide that the doctrine of Mapp v. Ohio is to be given general retroactive effect, or to decide that it is not to be given general retroactive effect. There is no philosophical obstacle to a decision either way. [17]*17But there must he a rational basis for that decision.
We proceed to come to grips with the heart of the problem as best we may, and all too conscious of the fact that we may have been misled by the marks we have found to guide us.
Ill
The Primary Reason for the Decision in Mapp v. Ohio Was to Deter Illegal Searches and Seizures in the Future
Basic to the application of Mapp v. Ohio to other situations, such as the one now before us, is the ascertainment of the reasons behind the decision. The principal reason, we think, is disclosed not only on the face of the opinions in Mapp v. Ohio, but in what appears on the face of the opinions written in the series of cases leading up to the holding in Mapp v. Ohio and this principal reason is to deter police misconduct. It thus removes the incentive to violate the Constitution in just those proceedings in which the outcome is of special interest to the officials who would conduct or direct an illegal search.
As the rule of Mapp v. Ohio is essentially an extension of the rule of Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, under which evidence seized in violation of the Fourth Amendment was excluded from federal criminal trials, we think it relevant to consider Judge Learned Hand’s succinct summary of the purpose of the rule.
“As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfully acquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times the action of trespass against the offending official may have been protection enough; but that is true no longer. Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will that wrong be repressed.” United States v. Pugli-ese, 2 Cir., 1945, 153 F.2d 497, 499.
State courts which rejected the common law rule of admissibility and adopted the exclusionary rule prior to the decision of the Supreme Court in Mapp v. Ohio placed similar emphasis on the deterrent rationale. For example, Justice Traynor, in a scholarly analysis written for the Supreme Court of California in the landmark case of People v. Cahan, 1955, 44 Cal.2d 434, 282 P.2d 905, declared that the court was “compelled” to reach the conclusion that evidence obtained in violation of the constitutional guarantees is inadmissible
“because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers.
***#*«•
“Granted that the adoption of the exclusionary rule will not prevent all illegal searches and seizures, it will discourage them. Police officers and prosecuting officials are primarily interested in convicting criminals. Given the exclusionary rule and a choice between securing evidence by legal rather than illegal means, officers will be impelled to obey the law themselves since not to do so will jeopardize their objectives.” 44 Cal.2d 434, 282 P.2d 905, at 911-912, 913.
In a similar vein, the Criminal Court of Appeals of Oklahoma expressed its views as follows:
“If these governmental agencies, contrary to the letter and the spirit of our Constitution, are encouraged or condoned by the courts in their invasion of the privacy of homes, offices and places of business, forcibly and without invitation, for the purpose of procuring evidence to convict one of some misdemeanor, the practice followed to its logical conclusion will make our vaunted [18]*18freedom a mere pretense, valueless, and without substance. Whenever the courts actively encourage officers to procure evidence illegally by force, the officers soon become dictatorial, arrogant, and even brutal — a natural consequence of the courts’ approval of obtaining evidence illegally by force.” Gore v. State, 1923, 24 Okl. Cr. 394, 218 P. 545, 550.
In State v. Owens, 1924, 302 Mo. 348, 259 S.W. 100, 32 A.L.R. 383, the Supreme Court of Missouri summed up its reason for excluding evidence obtained in an illegal search in the following sentence:
“The question is not whether the defendant can be redressed in his case upon trial, but whether the reckless officer may be encouraged by the approval of the court to repeat the trespass.” 259 S.W. at 109.
The most authoritative source from which we derive our understanding of the decision in Mapp v. Ohio is, of course, the Supreme Court of the United States. In Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, the Supreme Court made it clear for the first time that “the core of the Fourth Amendment” is applicable to the States through the due process clause of the Fourteenth Amendment. Nevertheless, the Supreme Court was reluctant to read the federal exclusionary rule into the minimal requirements of the Fourteenth Amendment until those States which admitted unlawfully seized evidence had been allowed an-opportunity to adopt the exclusionary rule or develop other methods of effectively enforcing the right of the people to be secure against arbitrary intrusions into their privacy by the police. See Irvine v. California, 1954, 347 U.S. 128; also Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.
Not until the experience of California, as well as that of other states, had demonstrated that alternative criminal and civil remedies “have been worthless and futile,” 367 U.S. at 652, 81 S.Ct. 1684, did the Supreme Court, in Mapp v. Ohio, finally impose the exclusionary rule on the States as a constitutional mandate. In the Mapp opinion itself, the Supreme Court repeated the language it had used in Elkins v. United States, 1960, 364 U.S. 206, 217, 80 S.Ct. 1453, stating “that the purpose of the exclusionary rule ‘is to deter — compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.’ ” 367 U.S. at 656, 81 S.Ct. at 1692. Mr. Justice Harlan, in his dissenting opinion, agreed that the exclusionary rule as applied in the federal courts under the doctrine of Weeks v. United States, supra, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, “is but a remedy which, by penalizing past official misconduct, is aimed at deterring such conduct in the future.” 367 U.S. at 680, 81 S.Ct. at 1705. Again, in Fahy v. Connecticut, supra, 1963, 375 U.S. 85, at page 94, 84 S.Ct. 229, Mr. Justice Harlan, joined by Mr. Justice Clark, Mr. Justice Stewart and Mr. Justice White, the only members of the Court to reach the issue of whether the admission of unconstitutionally seized evidence could be regarded as harmless error where it did not affect the outcome of the trial, reaffirmed the view that the basis of the Mapp rule lies in its “prophylactic function” of preventing prosecutors from using unconstitutionally obtained evidence to secure a conviction.2
[19]*19Having thus concluded that the course of decision in the Supreme Court demonstrates that the primary purpose of the exclusionary rule is to deter searches and seizures that violate the Fourteenth Amendment, as construed with the Fourth Amendment, we think this purpose is sufficiently, if not completely, served by refusing to apply the rule to searches and seizures long prior to the decision in Mapp v. Ohio or the occurrences involved in that ease. United States ex rel. Linkletter v. Walker, supra, 5 Cir., 1963, 323 F.2d 11, cert. granted, 1964, 84 S.Ct. 1340; Bender, The Retroactive Effect of an Overruling Decision: Mapp v. Ohio, 1962, 110 U.Pa.L.Rev. 650; Traynor, Mapp v. Ohio at Large in the Fifty States, 1962, Duke L.J. 319.
IV
The State of New York Has a Legitimate Interest in the Execution of a Judgment Based Upon Evidence Not Found to Be Untrustworthy After a Trial Not Tainted by Any Fundamental Unfairness
The rationale of Mapp v. Ohio, as we see it, is that a State will no longer be permitted to employ a procedure that is harmful to the security of the community at large because it fosters an incentive to the police to conduct unreasonable searches and seizures in violation of established principles of constitutional law. It is noteworthy that the new exclusionary principle does not arise out of any claim that the evidence that was admitted is untrustworthy or that the trial was tainted by some fundamental unfairness in regard to the interests of the particular defendant. Indeed, the compact logic of Judge Kaufman’s opinion in Durocher v. LaVallee, 2 Cir., 1964, 330 F.2d 303, points up the difference between giving retroactive effect to Gideon and giving retroactive effect to Mapp.3
[20]*20 As the interests of society that the rule of Mapp v. Ohio is designed to protect are not advanced by general retroactive application of the rule, we think it proper to accord fair weight to the interest of society in effective enforcement of the criminal law. A review of the trial minutes confirms that there is no reasonable doubt that Angelet is guilty o'f the serious crime for which he was convicted. In the absence of any fundamental unfairness to the defendant, or doubt as to the reliability of the evidence admitted, it seems clear that the People of the State of New York have a definite and legitimate interest in seeing that the sentence imposed upon him is fully executed.
Moreover, the effect of a ruling that the exclusionary rule affects all past convictions based upon evidence illegally procured is likely to be chaotic. See Warring v. Culpoys, D.C.Cir., 1941, 122 F.2d 642, 647, cert. denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 643. For example, as such evidence was freely admissible in New York, pursuant to rulings of the Supreme Court, in how. many of such convictions did the prosecution rely solely upon the evidence illegally procured, with perhaps some corroboration, without offering other incontrovertible proofs, not now available due to the death of witnesses or other circumstances, because such proofs would have been merely cumulative ?
We have grave doubt that a proper deference to the general control of a State over the administration of the criminal laws warrants such intrusion into the past, where there is no reason to doubt that the guilty have been brought to book and the trial leading to the conviction was based upon no fundamental unfairness such as exists in those cases where the right of defendants to counsel has been infringed or coerced confessions have been received in evidence. In such cases “an insistence that a defendant establish the extent of prejudice which he has suffered would obviously be futile.” United States v. Guerra, 2 Cir., (1964), 334 F.2d 138, 146, n. 4.
Y
A Holding of General Retroactivity Would Seriously Impair the Further Development of Constitutional Law on the Subject of Illegal Searches and Seizures
The right to privacy, and the development of new and much needed interpretations of the Fourth and Fourteenth Amendments, is one of the most pressing social problems of modern times in America. See generally Packard, The Naked Society (1964) 63 Colum.L.Rev. 955 (1963). It is not too much to say that wire-tapping and electronic eavesdropping have become so widespread and are so ingeniously contrived that new and perhaps far-reaching rulings will be made regulating such matters in the not too distant future. The whole subject of illegal searches and seizures is in such a state of vagueness and confusion that it has been stated that law enforcement officers have few sure guides and are at a loss to know what they may lawfully do and what they may not lawfully do. Lumbard, The Administration of Criminal Justice, 1963, 49 A.B. A.J. 840, 842.
If it is to be held that the exclusionary rule of Mapp v. Ohio is to be given general retroactive effect, how is a similar holding to be withheld with respect to every new interpretation of the Fourth and Fourteenth Amendments? Indeed, the basic reasoning of the dissent in this case is to the effect that any change in constitutional interpretation must be given retroactive effect. Such a rule would add rigidity to a decisional process that traditionally over the years has been flexible, and would thus inevitably to some extent postpone the much needed further development of constitutional law [21]*21on a subject so close to the hearts of the people. Moreover, it cannot be assumed that all overrulings of prior decisions will be o£ such a character as to provide a basis for new trials and possible reversals of convictions in criminal eases. Suppose, for example, the rule of exclusion now under consideration were to be changed later by the overruling of Mapp v. Ohio, how could such a holding be given retroactive effect, if in the meantime large numbers of persons previously convicted under the rule admitting such evidence had been released ?
In other words, the drawing of lines of distinction between different types of cases seems to us to be of the essence of the judicial process.4 The word “constitutional” is not to be given some talis-manic effect, irrespective of consequences. In Gideon the proceedings leading to conviction were tainted with an infringement of rights of the defendant so serious as to demonstrate that these proceedings were essentially unfair and hence could not and did not meet the requirements of due process of law. The reasoning of Judge Kaufman in the Durocher opinion makes this as clear as crystal. In the case now before us there is no such taint of essential unfairness.
With due respect for the views of our brothers of the Third Circuit, we do not agree with Judge Hastie’s dictum in United States ex rel. Craig v. Myers, 3 Cir., 1964, 329 F.2d 856, 859, quoted in Judge Marshall’s dissent herein. The result arrived at in Myers is the same as the one we reached in Durocher, but the dictum, as we read it, does no more than restate in different words the Blackstoni-an theory that we have already rejected.
In conclusion, there are certain general policy considerations that we think make it generally undesirable to give retroactive effect to overruling decisions, except under the most compelling circumstances. It has for generations been part of the formulary of stare decisis and res judi-cata to leave the history of the past undisturbed and to sustain the finality of judgments long since recorded. This is due in no small measure to the fact that witnesses die, documentary and other proofs are destroyed or otherwise become unavailable, and the retroactive application of overruling decisions involves of necessity an unequal and discriminatory result in individual cases. Added to this is the burden on judicial administration. True, the added burden must be borne in cases where old convictions are the fruit of trials tainted by some fundamental unfairness within the orbit of constitutional law, but not, we think, in cases such as the one we now decide.
The order below is affirmed.