U.S. Supreme Court KAUFMAN v. UNITED STATES, 394 U.S. 217 (1969) 394 U.S. 217

[Page 394 U.S. 217, 218]

(d) Considerations of finality of litigation have no greater weight with respect to federal prisoners seeking 2255 relief than with respect to state prisoners seeking federal habeas corpus relief. P. 228.

(e) Petitioner's insanity defense, like any other defense, cannot be prejudiced by the admission of illegally seized evidence. P. 230.

Reversed and remanded.

Bruce R. Jacob, by appointment of the Court, 391 U.S. 901, argued the cause and filed briefs for petitioner.

John S. Martin, Jr., argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Vinson, and Beatrice Rosenberg.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

The question here is whether the claim of a federal prisoner that he was convicted on evidence obtained in an unconstitutional search and seizure is cognizable in a post-conviction proceeding under 28 U.S.C. 2255.[Footnote 1]

[Page 394 U.S. 217, 219]

Petitioner was tried and convicted in the District Court for the Eastern District of Missouri on charges of armed robbery of a federally insured savings and loan association. At trial, petitioner's only defense was insanity. The Court of Appeals for the Eighth Circuit, on petitioner's direct appeal, affirmed the conviction. Kaufman v. United States, 350 F.2d 408 (1965).

Petitioner then filed this post-conviction proceeding under 2255 and included a claim that the finding of sanity was based upon the improper admission of unlawfully seized evidence.[Footnote 2] After an evidentiary hearing, the District Judge, who had also presided at petitioner's trial, denied relief with a written opinion. As respects the claim of unlawful search and seizure, the opinion states that: "The record does not substantiate this claim. In any event, this matter was not assigned as error on Kaufman's appeal from conviction and is not available as a ground for collateral attack on the instant 2255 motion." 268 F. Supp. 484, 487 (1967). Petitioner's applications to the District Court and the Court of Appeals for the Eighth Circuit for leave to appeal in forma pauperis were denied.

[Page 394 U.S. 217, 220]

followed by the Court of Appeals that claims of unlawful search and seizure "are not proper matters to be presented by a motion to vacate sentence under 2255 but can only be properly presented by appeal from the conviction."[Footnote 3] Other courts of appeals have indicated a contrary

[Page 394 U.S. 217, 221]

view.[Footnote 4] In light of the importance of the issue in the administration of 2255 we granted certiorari. 390 U.S. 1002 (1968). We reverse.

The authority of the federal courts to issue the writ of habeas corpus was incorporated in the very first grant of federal court jurisdiction made by the Judiciary Act of 1789, c. 20, 14, 1 Stat. 81, with the limiting provision that "writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States . . . ." Common-law principles initially determined the scope of the writ. Ex parte Bollman, 4 Cranch 75, 93-94 (1807). In 1867, however, the writ was extended to state prisoners, and its scope was expanded to authorize relief, both as to federal and state prisoners, in "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States . . . ." Act of February 5, 1867, c. 28, 1, 14 Stat. 385.

Section 2255 revised the procedure by which federal prisoners are to seek such relief but did not in any respect cut back the scope of the writ. The section was included in the 1948 revision of the Judicial Code "at the instance of the Judicial Conference [of the United States] to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum," United States v. [Page 394 U.S. 217, 222]

Hayman, 342 U.S. 205, 219 (1952) (italics supplied);[Footnote 5] "the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined." Hill v. United States, 368 U.S. 424, 427 (1962). Thus, we may refer to our decisions respecting the availability of the federal habeas remedy in deciding the question presented in this case.

We noted in Fay v. Noia, 372 U.S. 391, 409 (1963) that "[t]he course of decisions of this Court . . . makes plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas even though imposed pursuant to the conviction of a federal court of competent jurisdiction."[Footnote 6] We have given the same recognition to constitutional claims in 2255 proceedings. See, e. g., United States v. Hayman, supra; Sanders v. United States, (1963); Jordan v. United States, 352 U.S. 904 (1956). The courts of appeals which have denied cognizance under 2255 to unconstitutional search-and-seizure claims have not generally supplied reasons supporting their apparent departure from this course of our decisions. Rather, these courts have made the bald statement, variously expressed,

[Page 394 U.S. 217, 223]

that a motion under 2255 cannot be used in lieu of an appeal.[Footnote 7] It is true that in Sunal v. Large, 332 U.S. 174, 179 (1947), we held that "the writ is not designed for collateral review of errors of law committed by the trial court - the existence of any evidence to support the conviction, irregularities in the grand jury procedure, departure from a statutory grant of time in which to prepare for trial, and other errors in trial procedure which do not cross the jurisdictional line." But we there recognized that federal habeas relief for constitutional claims asserted by federal prisoners is not limited by that rule. 332 U.S., at 182; see also Hill v. United States, supra, at 428. Later, in Townsend v. Sain, 372 U.S. 293, 311-312 (1963), we pointed out the vital distinction between the appellate and habeas functions and concluded that habeas relief cannot be denied solely on the ground that relief should have been sought by appeal to prisoners alleging constitutional deprivations:

[Page 394 U.S. 217, 227]

"In all other cases where the material facts are in dispute, the holding of such a hearing is in the discretion of the district judge."

Of these, only the duty of the federal habeas court to scrutinize "the fact-finding procedure" under (3) does not apply in the case of a federal prisoner; federal fact-finding procedures are by hypothesis adequate to assure the integrity of the underlying constitutional rights. Thus, when a request for relief under 2255 asserts a claim of unconstitutional search and seizure which was tested by a motion to suppress at or before trial under Fed. Rule Crim. Proc. 41 (e), the 2255 court need not stop to review the adequacy of the procedure established by that Rule. In this respect, and in this respect only, the position of the federal prisoner does differ from that of the state prisoner. We perceive no differences between the situations of state and federal prisoners which should make allegations of the other circumstances listed in Townsend v. Sain less subject to scrutiny by a 2255 court.[Footnote 8]

[Page 394 U.S. 217, 228]

The approach adopted by the court in Thornton and pressed upon us here exalts the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights. Such regard for the benefits of finality runs contrary to the most basic precepts of our system of post-conviction relief. In Fay v. Noia, supra, at 424, a case involving a state prisoner who claimed that his confession was coerced, we said that "conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review." The same view was expressed in Sanders v. United States, supra, at 8, a case involving a federal prisoner: "[c]onventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged." This philosophy inheres in our recognition of state prisoners' post-conviction claims of illegal search and seizure. Plainly the interest in finality is the same with regard to both federal and state prisoners. With regard to both, Congress has determined that the full protection of their constitutional rights requires the availability of a mechanism for collateral attack. The right then is not merely to a federal forum but to full and fair consideration of constitutional claims. Federal prisoners are no less entitled to such consideration than are state prisoners. There is no reason to treat federal trial errors as less destructive of constitutional guarantees than state trial errors, nor to give greater preclusive effect to procedural defaults by federal defendants than to similar defaults by state defendants. To hold otherwise would reflect an anomalous and erroneous view of federal-state relations.

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That concession is irrelevant in light of petitioner's defense at trial based on insanity. Surely that defense, any more than any other defense, cannot be prejudiced by the admission of unconstitutionally seized evidence.

We thus reject the rule announced in the majority opinion in Thornton and adopt the reasoning of Judge Wright's dissent in that case, 125 U.S. App. D.C., at 123, 368 F.2d, at 831:

"There is undoubtedly a difference in the way federal courts should treat post-conviction applications by state and federal prisoners. Brown v. Allen, [344 U.S. 443, 508], 73 S. Ct. 397 (opinion of Mr. Justice Frankfurter), interprets 28 U.S.C. 2241 as requiring federal courts to have the `last say' with respect to questions of federal law. Federal prisoners applying for collateral relief often have had their constitutional claims passed on by federal courts at trial or on appeal, so the Brown v. Allen rationale for federal court relitigation is inapposite. But this difference provides no basis for limiting the grounds upon which federal prisoners may obtain collateral relief, or for formulating a separate set of rules to determine when a federal prisoner's claim has adequately been adjudicated. Where a federal trial or appellate court has had a `say' on a federal prisoner's claim, there may be no need for collateral relitigation. But what if the federal trial or appellate court said nothing because the issue was not raised? What if it is unclear whether the `say' was on the merits? What if new law has been made or facts uncovered relating to the constitutional claim since the trial and appeal? What if the trial or appellate court based its rulings on findings of fact made after a hearing not `full and fair' within the meaning of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745 (1963)?

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as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

"A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

"The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."

Footnote 2 Petitioner initiated the 2255 proceeding by a pro se motion. The only claim presented was denial of effective assistance of counsel. The District Judge ordered a hearing, and appointed counsel to assist petitioner. Counsel filed a supplemental motion presenting two additional claims, one of which was that the search of petitioner's automobile was illegal.

Footnote 3 Warren v. United States, 311 F.2d 673, 675 (1963); see also Springer v. United States, 340 F.2d 950 (1965); Peters v. United States, 312 F.2d 481 (1963); Gendron v. United States, 340 F.2d 601 (1965). Accord: United States v. Re, 372 F.2d 641 (C. A. 2d Cir. 1967); United States v. Jenkins, 281 F.2d 193 (C. A. 3d Cir. 1960); Armstead v. United States, 318 F.2d 725 (C. A. 5th Cir. 1963); Eisner v. United States, 351 F.2d 55 (C. A. 6th Cir. 1965); De Welles v. United States, 372 F.2d 67 (C. A. 7th Cir. 1967); Williams v. United States, 307 F.2d 366 (C. A. 9th Cir. 1962).

We have not overlooked that the District Court's statement that "this matter was not assigned as error on Kaufman's appeal from conviction . . ." suggests that in any event failure to appeal the conviction renders the 2255 remedy unavailable. This suggestion is contrary to our decisions that failure to take a direct appeal from conviction does not deprive a federal post-conviction court of power to adjudicate the merits of constitutional claims; the question rather is whether the case is one in which refusal to exercise that power would be appropriate. See Fay v. Noia, 372 U.S. 391, 438-440 (1963); Henry v. Mississippi, 379 U.S. 443, 451-452 (1965).

This certainly is not a case where there was a "deliberate by-pass" of a direct appeal. Appointed counsel had objected at trial to the admission of certain evidence on grounds of unlawful search and seizure, but newly appointed appellate counsel did not assign the admission as error either in his brief or on oral argument of the appeal. After oral argument of the appeal, however, petitioner wrote a letter to appellate counsel asking him to submit to the Court of Appeals a claim of illegal search and seizure of items from his automobile. Counsel forwarded petitioner's letter to the Clerk of the Court of Appeals who notified counsel that petitioner's letter had been given to the panel which had heard and was considering the appeal. The opinion of the Court of Appeals affirming petitioner's conviction does not appear to pass on the search-and-seizure claim.

Footnote 4 United States v. Sutton, 321 F.2d 221 (C. A. 4th Cir. 1963); Gaitan v. United States, 317 F.2d 494 (C. A. 10th Cir. 1963).

Footnote 5 Among the serious administrative problems under habeas corpus practice in the case of federal prisoners was that created by the requirement that the action be brought in the district of confinement, where the records of the case were often not readily available. Section 2255 changed this to require an application by motion filed in the sentencing court. See United States v. Hayman, 342 U.S. 205, 212-219 (1952).

Footnote 6 See, e. g., Ex parte Lange, 18 Wall. 163 (1874); Ex parte Wilson, (1885); Callan v. Wilson, 127 U.S. 540 (1888); Counselman v. Hitchcock, 142 U.S. 547 (1892); Johnson v. Zerbst, 304 U.S. 458 (1938); Bowen v. Johnston, 306 U.S. 19 (1939); Waley v. Johnston, 316 U.S. 101 (1942); Von Moltke v. Gillies, 332 U.S. 708 (1948); see also cases collected in Fay v. Noia, 372 U.S. 391, 409, n. 17.

Footnote 7 See, e. g., "A motion under 2255 cannot be made the substitute for an appeal," Peters v. United States, supra, n. 3, at 482 (C. A. 8th Cir.); "Section 2255 provides for a collateral attack on a judgment of conviction and is not a substitute for appeal for alleged errors committed at the trial," Eisner v. United States, supra, n. 3, at 57 (C. A. 6th Cir.); "Questions concerning the admissibility of evidence obtained directly or indirectly as a result of an unlawful search can be reviewed on an appeal from a judgment of conviction, but cannot be dealt with in a section 2255 proceeding," Williams v. United States, supra, n. 3, at 367 (C. A. 9th Cir.); "It has long been the law that habeas corpus and 2255 will not be allowed to do service as an appeal, and that so far as federal prisoners are concerned, failure to appeal will normally bar resort to post-conviction relief," Nash v. United States, 342 F.2d 366, 367 (C. A. 5th Cir. 1965). These paraphrase the statement in Sunal v. Large, 332 U.S. 174, 178 (1947), that "the writ of habeas corpus will not be allowed to do service for an appeal," but that statement was made in the context of an alleged nonconstitutional trial error. See United States v. Sobell, 314 F.2d 314, 322-323 (C. A. 2d Cir. 1963).

Footnote 8 Where a trial or appellate court has determined the federal prisoner's claim, discretion may in a proper case be exercised against the grant of a 2255 hearing. Section 2255 provides for hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." In Sanders v. United States, (1963), we announced standards governing the determination whether a hearing should be ordered in the case of a successive motion under 2255. Similarly, where the trial or appellate court has had a "say" on a federal prisoner's claim, it may be open to the 2255 court to determine that on the basis of the motion, files, and records, "the prisoner is entitled to no relief." See Thornton v. United States, 125 U.S. App. D.C. 114, 125, 368 F.2d 822, 833 (1966) (dissenting opinion of Wright, J.).

[Page 394 U.S. 217, 233]

attack is the possibility of the applicant's innocence. For illustration, few would think that justice requires release of a person whose allegations clearly show that he was guilty of the crime of which he had been convicted.

I agree with the Court's conclusion that the scope of collateral attack is substantially the same in federal habeas corpus cases which involve challenges to state convictions, as it is in 2255 cases which involve challenges to federal convictions. The crucial question, however, is whether certain types of claims, such as a claim to keep out relevant and trustworthy evidence because the result of an unconstitutional search and seizure, should normally be open in these collateral proceedings. This question was fully and carefully considered by the Court of Appeals for the District of Columbia Circuit in Thornton v. United States, 125 U.S. App. D.C. 114, 368 F.2d 822 (1966), and I agree substantially with the opinion of Judge Leventhal for the majority of that court, which states:2

"[G]enerally a claim by a federal prisoner that evidence admitted at his trial was the fruit of an unconstitutional search or seizure is not properly the ground of a collateral attack on his conviction. As further noted below, this rule is subject to an exception for special circumstances . . . .

[Page 394 U.S. 217, 235]

701 (1955). The conviction of Noia's other codefendant was also reversed, People v. Bonino, 1 N. Y. 2d 752, 135 N. E. 2d 51, and since there was no evidence other than the coerced confessions that they were guilty, the State apparently declined to reprosecute them and they were set free. See United States ex rel. Noia v. Fay, 183 F. Supp. 222, 227, n. 6 (1960). Noia, however, languished in prison, even though his alleged confederates had been released. Both the New York courts and the Federal District Court declined to review his case on the ground that his 1942 failure to appeal made his conviction "final." He remained in jail despite the fact that he "continuously asserted his innocence of the crime for which he [had] been convicted" in his petition for habeas corpus and elsewhere. See Transcript of Record in No. 84, October Term, 1962, p. 8.

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correspond to the purpose of the Fourth Amendment exclusionary rule. As the Court of Appeals said in Thornton:6

"Our rejection of the availability of collateral review for claims of unreasonable search and seizure (in the absence of exceptional circumstances) is not attributable to a low regard for the significance of the Fourth Amendment in our times and civilization. On the contrary, the magnitude of the Fourth Amendment in our constitutional constellation has prompted unusual remedies by Congress, as well as the courts. . . .

". . . The corollary, however, is a contraction of the need for enlarging collateral review in order to assure effective vindication of the constitutional interests involved."

The purpose of the exclusionary rule, unlike most provisions of the Bill of Rights, does not include, even to the slightest degree, the goal of insuring that the guilt-determining process be reliable. Rather, as this Court has said time and again, the rule has one primary and overriding purpose, the deterrence of unconstitutional searches and seizures by the police. As the Court said in Linkletter v. Walker, 381 U.S. 618, 636-637 (1965):

"Mapp had as its prime purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. This, it was found, was the only effective deterrent to lawless police action. Indeed, all of the cases since Wolf [v. Colorado, (1949)] requiring the exclusion of illegal evidence have been based on the necessity for an effective deterrent to illegal police action."

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of a mystery. Of course, the shortcomings inherent in any human system make it impossible to eliminate entirely all the incentives to conduct an illegal search. It would seem rather fanciful, however, to suggest that these inevitable incentives would be decreased to any significant extent by the fact that if a conviction is obtained, after adequate opportunities have been provided to litigate constitutional claims, and if this conviction is upheld by all the reviewing courts, the validity of the search and seizure may later be questioned in a collateral proceeding. Understandably, the Court does not make any such suggestion and indeed makes no effort to justify its result in terms of the long-recognized deterrent purpose of the exclusionary rule. The Court instead simply provides us with a string of citations that supposedly settle the question, at least as to state convictions, ante, at 225, but the Court neglects to mention that not one of the cases it cites contains a single intimation that the issue before us now was even considered.7

The only other justification for the Court's result that can be gleaned from its opinion is the statement that the reasoning of the Court of Appeals in Thornton "exalts the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights." Ante, at 228. This astonishing statement is directly contrary to the principles this Court has consistently applied on this subject, as for example in Elkins v. United States, 364 U.S. 206, 217 (1960), where we said: "The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter -

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to compel respect for the constitutional guaranty in the only effectively available way - by removing the incentive to disregard it." This same recognition that no personal right of the prisoner can be vindicated in these Fourth Amendment cases was stressed in this Court's opinion in Linkletter, supra: "We cannot say that this [deterrent] purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. . . . Finally, the ruptured privacy of the victims' homes and effects cannot be restored. Reparation comes too late." 381 U.S., at 637.

The Court's consistent adherence to this approach has continued through all of the various "retroactivity" cases, including today's decision in Desist v. United States, post, p. 244, in which the Court emphasizes, quoting from Linkletter, that "`[t]he misconduct of the police . . . has already occurred and will not be corrected by releasing the prisoners involved,'" and that "the exclusionary rule is but a `procedural weapon that has no bearing on guilt.'" It would be hard to find a more apt summary of this Court's holdings in these "retroactivity" cases than the statement that they "exal[t] the value of finality in criminal judgments at the expense of the interest of each prisoner in the vindication of his constitutional rights." But since this is the course the Court has chosen to steer, I think it would not be amiss to suggest that the Court at least decide this case on the same principles and seek to achieve a modest semblance of consistency. Instead the Court adopts a rule that offers no discernible benefits in enforcing the Fourth Amendment and insures that prisoners who are undoubtedly guilty will be set free.

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the guilty is desirable, other things being equal. One commentator, who attempted in vain to dissuade this Court from today's holding, thought it necessary to point out that there is "a strong public interest in convicting the guilty."8 Indeed the day may soon come when the ever-cautious law reviews will actually be forced to offer the timid and uncertain contention, recently suggested satirically, that "crime may be thought socially undesirable, and its control a `valid governmental objective' to which the criminal law is `rationally related.'"[Footnote 9]

I cannot agree to a rule, however technical it may seem, that leads to these results. I would not let any criminal conviction become invulnerable to collateral attack where there is left remaining the probability or possibility that constitutional commands related to the integrity of the fact-finding process have been violated. In such situations society has failed to perform its obligation to prove beyond a reasonable doubt that the defendant committed the crime. But it is quite a different thing to permit collateral attack on a conviction after a trial according to due process when the defendant clearly is, by the proof and by his own admission, guilty of the crime charged. There may, of course, as the Court of Appeals held in the Thornton case, be some special circumstances in which allowance of a Fourth Amendment claim in a collateral proceeding would be justified in terms of the relevant and applicable constitutional principles. Some of the situations possibly falling in this category have been enumerated and examined by others,[Footnote 10] and there are circumstances alleged here that might lead

[Page 394 U.S. 217, 242]

to such a disposition of this case.[Footnote 11] But the Court does not rest its judgment on this narrow ground, and I therefore do not attempt to pass on it. I do contend, however, that the court below was right in refusing to follow the broad rule that this Court is announcing today. In collateral attacks whether by habeas corpus or by 2255 proceedings, I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt. This defendant is permitted to attack his conviction collaterally although he conceded at the trial and does not now deny that he had robbed the savings and loan association and although the evidence makes absolutely clear that he knew what he was doing. Thus, his guilt being certain, surely he does not have a constitutional right to get a new trial. I cannot possibly agree with the Court.

[Footnote 1] "If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. 2255. (Emphasis supplied.)

[Footnote 2] 125 U.S. App. D.C., at 116-118, 368 F.2d, at 824-826.

[Footnote 3] See Mishkin, The Supreme Court, 1964 Term - Foreword: The High Court, The Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56, 79-86 (1965).

[Footnote 4] 372 U.S. 391, 438.

[Footnote 5] Id., at 440-441.

[Footnote 6] 125 U.S. App. D.C., at 118, 368 F.2d, at 826.

[Footnote 7] Only one of these decisions, Mancusi v. DeForte, (1968), actually ordered the granting of habeas relief on the basis of a search-and-seizure claim, and in Mancusi (as in Warden v. Hayden, 387 U.S. 294 (1967)) the issue was not even theoretically before us since only in the most exceptional case would we have considered a question not mentioned in the State Warden's petition for a writ of certiorari.

[Footnote 8] Amsterdam, Search, Seizure; and Section 2255: A Comment, 112 U. Pa. L. Rev. 378, 389 (1964).

[Page 394 U.S. 217, 243]

inveighs are to be found in the Court's decisions in Townsend v. Sain, 372 U.S. 293 (1963), and Fay v. Noia, 372 U.S. 391 (1963), which have opened wide the gates to collateral re-examination of both state and federal criminal convictions. Be that as it may, the present case offers an opportunity to narrow the entrance in a fair and practicable manner. In rejecting the opportunity, the Court once again* this Term imposes a burden on the judiciary and on society at large, which results in no legitimate benefit to the petitioner and does nothing to serve the interests of justice.

I therefore dissent from the opinion of the Court.

[Footnote *] See my dissent in Gardner v. California, 393 U.S. 367, 371 (1969).

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