author: Mr. Justice Stewart Mr. Justice Harlan, Mr. Justice Blackmun,

text:
    INVESTMENT COMPANY INSTITUTE et al. v. CAMP, COMPTROLLER OF THE CURRENCY, et al.
    No. 61.
    Argued December 15, 1970
    Decided April 5, 1971

    Stewart, J., delivered the opinion of the Court, in which Black, Douglas, BrenNAN, White, and Marshall, JJ., joined. HarlaN, J., post, p. 639, and BlackmuN, J., post, p. 642, filed dissenting opinions. Burger, C. J., took no part in the consideration or decision of these cases.

      G. Duane Vieth argued the cause for petitioners in No. 61. With him on the briefs were James F. Fitzpatrick, Melvin Spaeth, and Robert Augenblick. Joseph B. Levin argued the cause for petitioner in No. 59. With him on the briefs was Lloyd J. Derrickson.

      Deputy Solicitor General Friedman argued the cause for respondent Camp, Comptroller of the Currency, in No. 61. With him on the brief were Solicitor General Griswold, Assistant Attorney General Ruckelshaus, Richard B. Stone, Alan S. Rosenthal, Leonard Schaitman, and C. Westbrook Murphy. Mr. Friedman, by special leave of Court, argued the cause for the United States as amicus curiae urging affirmance in No. 59. With him on the brief were Solicitor General Griswold and Mr. Stone. Archibald Cox argued the cause for respondent First National City Bank in both cases. With him on the brief was Stephen Ailes.

      Robert L. Stern filed a brief for Corporate Fiduciaries Association of Chicago as amicus curiae urging affirmance in both cases.

      Together with No. 59, National Association of Securities Dealers, Inc. v. Securities and Exchange Commission et al., argued December 14-15, 1970, also on certiorari to the same court.

   Mr. Justice Stewart

delivered the opinion of the Court.

These companion cases involve a double-barreled assault upon the efforts of a national bank to go into the business of operating a mutual investment fund. The petitioners in No. 61 are an association of open-end investment companies and several individual such companies. They brought an action in the United States District Court for the District of Columbia, attacking portions of Regulation 9 issued by the Comptroller of the Currency, on the ground that this Regulation, in purporting to authorize banks to establish and operate collective investment funds, sought to permit activities prohibited to national banks or their affiliates by various provisions of the Glass-Steagall Banking Act of 1933, 48 Stat. 162. The petitioners also specifically attacked the Comptroller’s approval of the application of First National City Bank of New York for permission to establish and operate a collective investment fund. In No. 59 the National Association of Securities Dealers filed a petition in the United States Court of Appeals for the District of Columbia Circuit seeking review of an order of the Securities and Exchange Commission that partially exempted the collective investment fund of First National City Bank of New York from various provisions of the Investment Company Act of 1940.

In No. 61 the District Court concluded that the challenged provisions of Regulation 9 were invalid under the Glass-Steagall Act. The Comptroller and First National City Bank appealed from this decision, and the appeal was consolidated with the petition for review in No. 59. The Court of Appeals held that the actions taken by the Securities and Exchange Commission and the Comptroller were fully consonant with the statutes committed to their regulatory supervision. Accordingly, it affirmed the order of the Commission and reversed the judgment of the District Court. We granted certiorari to consider important questions presented under federal regulatory statutes. For the reasons that follow, we hold Regulation 9 invalid insofar as it authorizes the sale of interests in an investment fund of the type established by First National City Bank pursuant to the Comptroller’s approval. This disposition makes it unnecessary to consider the propriety of the action of the Securities and Exchange Commission in affording this fund exemption from certain of the provisions of the Investment Company Act of 1940.

I

In No. 61 it is urged at the outset that petitioners lack standing to question whether national banks may legally enter a field in competition with them. This contention is foreclosed by Data Processing Service v. Camp, 397 U. S. 150. There we held that companies that offered data processing services to the general business community had standing to seek judicial review of a ruling by the Comptroller that national banks could make data processing services available to other banks and to bank customers. We held that data processing companies were sufficiently injured by the competition that the Comptroller had authorized to create a case or controversy. The injury to the petitioners in the instant case is indistinguishable. We also concluded that Congress did not intend “to preclude judicial review of administrative rulings by the Comptroller as to the legitimate scope of activities available to national banks under [the National Bank Act].” 397 U. S., at 157. This is precisely the review that the petitioners have sought in this case. Finally, we concluded that Congress had arguably legislated against the competition that the petitioners sought to challenge, and from which flowed their injury. We noted that whether Congress had indeed prohibited such competition was a question for the merits. In the discussion that follows in the balance of this opinion we deal with the merits of the petitioners’ contentions and conclude that Congress did legislate against the competition that the petitioners challenge. There can be no real question, therefore, of the petitioners’ standing in the light of the Data Processing case. See also Arnold Tours v. Camp, 400 U. S. 45.

II

The issue before us is whether the Comptroller of the Currency may, consistently with the banking laws, authorize a national bank to offer its customers the opportunity to invest in a stock fund created and maintained by the bank. Before 1963 national banks were prohibited by administrative regulation from offering this service. The Board of Governors of the Federal Reserve System, which until 1962 had regulatory jurisdiction over all the trust activities of national banks, allowed the collective investment of trust assets only for “the investment of funds held for true fiduciary purposes.” The applicable regulation, Regulation F, specified that “the operation of such Common Trust Funds as investment trusts for other than strictly fiduciary purposes is hereby prohibited.” The Board consistently ruled that it was improper for a bank to use “a Common Trust Fund as an investment trust attracting money seeking investment alone and to embark upon what would be in effect the sale of participations in a Common Trust Fund to the public as investments.” 26 Fed. Reserve Bull. 393 (1940); see also 42 Fed. Reserve Bull. 228 (1956); 41 Fed. Reserve Bull. 142 (1955).

In 1962 Congress transferred jurisdiction over most of the trust activities of national banks from the Board of Governors of the Federal Reserve System to the Comptroller of the Currency, without modifying any provision of substantive law. Pub. L. 87-722, 76 Stat. 668, 12 U. S. C. § 92a. The Comptroller thereupon solicited suggestions for improving the regulations applicable to trust activities. Subsequently, new regulations were proposed which expressly authorized the collective investment of monies delivered to the bank for investment management, so-called managing agency accounts. These proposed regulations were officially promulgated in 1963 with changes not material here. In 1965 the First National City Bank of New York submitted for the Comptroller’s approval a plan for the collective investment of managing agency accounts. The Comptroller promptly approved the plan, and it is now in operation. This plan, which departs in some respects from the plan envisaged by the Comptroller’s Regulation, is expected, the briefs tell us, to be a model for other banks which decide to offer their customers a collective investment service.

Under the plan the bank customer tenders between $10,000 and $500,000 to the bank, together with an authorization making the bank the customer’s managing agent. The customer’s investment is added to the fund, and a written evidence of participation is issued which expresses in “units of participation” the customer’s proportionate interest in fund assets. Units of participation are freely redeemable, and transferable to anyone who has executed a managing agency agreement with the bank. The fund is registered as an investment company under the Investment Company Act of 1940. The bank is the underwriter of the fund’s units of participation within the meaning of that Act. The fund has filed a registration statement pursuant to the Securities Act of 1933. The fund is supervised by a five-member committee elected annually by the participants pursuant to the Investment Company Act of 1940. The Securities and Exchange Commission has exempted the fund from the Investment Company Act to the extent that a majority of this committee may be affiliated with the bank, and it is expected that a majority always will be officers in the bank’s trust and investment division. The actual custody and investment of fund assets is carried out by the bank as investment advisor pursuant to a management agreement. Although the Investment Company Act requires that this management agreement be approved annually by the committee, including a majority of the unaffiliated members, or by the participants, it is expected that the bank will continue to be investment advisor.

Ill

Section 16 of the Glass-Steagall Act as amended, 12 U. S. C. § 24, Seventh, provides that the “business of dealing in securities and stock [by a national bank] shall be limited to purchasing and selling such securities and stock without recourse, solely upon the order, and for the account of, customers, and in no case for its own account .... Except as hereinafter provided or otherwise permitted by law, nothing herein contained shall authorize the purchase by [a national bank] for its own account of any shares of stock of any corporation.” The petitioners contend that a purchase of stock by a bank’s investment fund is a purchase of stock by a bank for its own account in violation of this section.

Section 16 also provides that a national bank “shall not underwrite any issue of securities or stock.” And § 21 of the same Act, 12 U. S. C. § 378 (a), provides that “it shall be unlawful — (1) For any person, firm, corporation, association, business trust, or other similar organization, engaged in the business of issuing, underwriting, selling, or distributing, at wholesale or retail, or through syndicate participation, stocks, bonds, debentures, notes, or other securities, to engage at the same time to any extent whatever in the business of [deposit banking].” The petitioners contend that the creation and operation of an investment fund by a bank which offers to its customers the opportunity to purchase an interest in the fund’s assets constitutes the issuing, underwriting, selling, or distributing of securities or stocks in violation of these sections.

The questions raised by the petitioners are novel and substantial. National banks were granted trust powers in 1913. Federal Reserve Act, § 11, 38 Stat. 261. The first common trust fund was organized in 1927, and such funds were expressly authorized by the Federal Reserve Board by Regulation F promulgated in 1937. Report on Commingled or Common Trust Funds Administered by Banks and Trust Companies, H. R. Doc. No. 476, 76th Cong., 2d Sess., 4-5 (1939). For at least a generation, therefore, there has been no reason to doubt that a national bank can, consistently with the banking laws, commingle trust funds on the one hand, and act as a managing agent on the other. No provision of the banking law suggests that it is improper for a national bank to pool trust assets, or to act as a managing agent for individual customers, or to purchase stock for the account of its customers. But the union of these powers gives birth to an investment fund whose activities are of a different character. The differences between the investment fund that the Comptroller has authorized and a conventional open-end mutual fund are subtle at best, and it is undisputed that this bank investment fund finds itself in direct competition with the mutual fund industry. One would suppose that the business of a mutual fund consists of buying stock “for its own account” and of “issuing” and “selling” “stock” or “other securities” evidencing an undivided and redeemable interest in the assets of the fund. On their face, §§16 and 21 of the Glass-Steagall Act appear clearly to prohibit this activity by national banks.

But we cannot come lightly to the conclusion that the Comptroller has authorized activity that violates the banking laws. It is settled that courts should give great weight to any reasonable construction of a regulatory statute adopted by the agency charged with the enforcement of that statute. The Comptroller of the Currency is charged with the enforcement of the banking laws to an extent that warrants the invocation of this principle with respect to his deliberative conclusions as to the meaning of these laws. See First National Bank v. Missouri, 263 U. S. 640, 658.

The difficulty here is that the Comptroller adopted no expressly articulated position at the administrative level as to the meaning and impact of the provisions of §§16 and 21 as they affect bank investment funds. The Comptroller promulgated Regulation 9 without opinion or accompanying statement. His subsequent report to Congress did not advert to the prohibitions of the Glass-Steagall Act. Comptroller of the Currency, 101st Annual Report 14-15 (1963). To be sure, counsel for the Comptroller in the course of this litigation, and specifically in his briefs and oral argument in this Court, has rationalized the basis of Regulation 9 with great professional competence. But this is hardly tantamount to an administrative interpretation of §§16 and 21. In Burlington Truck Lines v. United States, 371 U. S. 156, we said, “The courts may not accept appellate counsel’s post hoc rationalizations for agency action .... For the courts to substitute their or counsel’s discretion for that of the [agency] is incompatible with the orderly functioning of the process of judicial review.” Id., at 168-169. Congress has delegated to the administrative official and not to appellate counsel the responsibility for elaborating and enforcing statutory commands. It is the administrative official and not appellate counsel who possesses the expertise that can enlighten and rationalize the search for the meaning and intent of Congress. Quite obviously the Comptroller should not grant new authority to national banks until he is satisfied that the exercise of this authority will not violate the intent of the banking laws. If he faces such questions only after he has acted, there is substantial danger that the momentum generated by initial approval may seriously impair the enforcement of the banking laws that Congress enacted.

IV

There is no dispute that one of the objectives of the Glass-Steagall Act was to prohibit commercial banks, banks that receive deposits subject to repayment, lend money, discount and negotiate promissory notes and the like, from going into the investment banking business. Many commercial banks were indirectly engaged in the investment banking business when the Act was passed in 1933. Even before the passage of the Act it was generally believed that it was improper for a commercial bank to engage in investment banking directly. But in 1908 banks began the practice of establishing security affiliates that engaged in, inter alia, the business of floating bond issues and, less frequently, underwriting stock issues. The Glass-Steagall Act confirmed that national banks could not engage in investment banking directly, and in addition made affiliation with an organization so engaged illegal. One effect of the Act was to abolish the security affiliates of commercial banks.

It is apparent from the legislative history of the Act why Congress felt that this drastic step was necessary. The failure of the Bank of United States in 1930 was widely attributed to that bank’s activities with respect to its numerous securities affiliates. Moreover, Congress was concerned that commercial banks in general and member banks of the Federal Reserve System in particular had both aggravated and been damaged by stock market decline partly because of their direct and indirect involvement in the trading and ownership of speculative securities. The Glass-Steagall Act reflected a determination that policies of competition, convenience, or expertise which might otherwise support the entry of commercial banks into the investment banking business were outweighed by the “hazards” and “financial dangers” that arise when commercial banks engage in the activities proscribed by the Act.

The hazards that Congress had in mind were not limited to the obvious danger that a bank might invest its own assets in frozen or otherwise imprudent stock or security investments. For often securities affiliates had operated without direct access to the assets of the bank. This was because securities affiliates had frequently been established with capital paid in by the bank’s stockholders, or by the public, or through the allocation of a legal dividend on bank stock for this purpose. The legislative history of the Glass-Steagall Act shows that Congress also had in mind and repeatedly focused on the more subtle hazards that arise when a commercial bank goes beyond the business of acting as fiduciary or managing agent and enters the investment banking business either directly or by establishing an affiliate to hold and sell particular investments. This course places new promotional and other pressures on the bank which in turn create new temptations. For example, pressures are created because the bank and the affiliate are closely associated in the public mind, and should the affiliate fare badly, public confidence in the bank might be impaired. And since public confidence is essential to the solvency of a bank, there might exist a natural temptation to shore up the affiliate through unsound loans or other aid. Moreover, the pressure to sell a particular investment and to make the affiliate successful might create a risk that the bank would make its credit facilities more freely available to those companies in whose stock or securities the affiliate has invested or become otherwise involved. Congress feared that banks might even go so far as to make unsound loans to such companies. In any event, it was thought that the bank’s salesman’s interest might impair its ability to function as an impartial source of credit.

Congress was also concerned that bank depositors might suffer losses on investments that they purchased in reliance on the relationship between the bank and its affiliate. This loss of customer good will might “become an important handicap to a bank during a major period of security market deflation.” More broadly, Congress feared that the promotional needs of investment banking might lead commercial banks to lend their reputation for prudence and restraint to the enterprise of selling particular stocks and securities, and that this could not be done without that reputation being undercut by the risks necessarily incident to the investment banking business. There was also perceived the danger that when commercial banks were subject to the promotional demands of investment banking, they might be tempted to make loans to customers with the expectation that the loan would facilitate the purchase of stocks and securities. There was evidence before Congress that loans for investment written by commercial banks had done much to feed the speculative fever of the late 1920’s. Senator Glass made it plain that it was “the fixed purpose of Congress” not to see the facilities of commercial banking diverted into speculative operations by the aggressive and promotional character of the investment banking business.

Another potential hazard that very much concerned Congress arose from the plain conflict between the promotional interest of the investment banker and the obligation of the commercial banker to render disinterested investment advice. Senator Bulkley stated:

“Obviously, the banker who has nothing to sell to his depositors is much better qualified to advise disinterestedly and to regard diligently the safety of depositors than the banker who uses the list of depositors in his savings department to distribute circulars concerning the advantages of this, that, or the other investment on which the bank is to receive an originating profit or an underwriting profit or a distribution profit or a trading profit or any combination of such profits.”

Congress had before it evidence that security affiliates might be driven to unload excessive holdings through the trust department of the sponsor bank. Some witnesses at the hearings expressed the view that this practice constituted self-dealing in violation of the trustee’s obligation of loyalty, and indeed that it would be improper for a bank’s trust department to purchase anything from the bank’s securities affiliate.

In sum, Congress acted to keep commercial banks out of the investment banking business largely because it believed that the promotional incentives of investment banking and the investment banker’s pecuniary stake in the success of particular investment opportunities was destructive of prudent and disinterested commercial banking and of public confidence in the commercial banking system. As Senator Bulkley put it:

“If we want banking service to be strictly banking service, without the expectation of additional profits in selling something to customers, we must keep the banks out of the investment security business.”

y

The language that Congress chose to achieve this purpose includes the prohibitions of § 16 that a national bank “shall not underwrite any issue of securities or stock” and shall not purchase “for its own account . . . any shares of stock of any corporation,” and the prohibition of § 21 against engaging in “the business of issuing, underwriting, selling, or distributing . . . stocks, bonds, debentures, notes, or other securities.” In this litigation the Comptroller takes the position that the operation of a bank investment fund is consistent with these provisions, because participating interests in such a fund are not “securities” within the meaning of the Act. It is argued that a bank investment fund simply makes available to the small investor the benefit of investment management by a bank trust department which would otherwise be available only to large investors, and that the operation of an investment fund creates no problems that are not present whenever a bank invests in securities for the account of customers.

But there is nothing in the phrasing of either § 16 or § 21 that suggests a narrow reading of the word “securities.” To the contrary, the breadth of the term is implicit in the fact that the antecedent statutory language encompasses not only equity securities but also securities representing debt. And certainly there is nothing in the language of these provisions to suggest that the sale of an interest in the business of buying, holding, and selling stocks for investment is to be distinguished from the sale of an interest in a commercial or industrial enterprise.

Indeed, there is direct evidence that Congress specifically contemplated that the word “security” includes an interest in an investment fund. The Glass-Steagall Act was the product of hearings conducted pursuant to Senate Resolution 71 which included among the topics to be investigated the impact on the banking system of the formation of investment and security trusts. The subcommittee found that one of the activities in which bank security affiliates engaged was that of an investment trust: “buying and selling securities acquired purely for investment or speculative purposes.” Since Congress generally intended to divorce commercial banking from the kinds of activities in which bank security affiliates engaged, there is reason to believe that Congress explicitly intended to prohibit a national bank from operating an investment trust.

But, in any event, we are persuaded that the purposes for which Congress enacted the Glass-Steagall Act leave no room for the conclusion that a participation in a bank investment fund is not a “security” within the meaning of the Act. From the perspective of competition, convenience, and expertise, there are arguments to be made in support of allowing commercial banks to enter the investment banking business. But Congress determined that the hazards outlined above made it necessary to prohibit this activity to commercial banks. Those same hazards are clearly present when a bank undertakes to operate an investment fund.

A bank that operates an investment fund has a particular investment to sell. It is not a matter of indifference to the bank whether the customer buys an interest in the fund or makes some other investment. If its customers cannot be persuaded to invest in the bank’s investment fund, the bank will lose their investment business and the fee which that business would have brought in. Even as to accounts large enough to qualify for individual investment management, there might be a potential for a greater profit if the investment were placed in the fund rather than in individually selected securities, because of fixed costs and economies of scale. The mechanics of operating an investment fund might also create promotional pressure. When interests in the fund were redeemed, the bank would be effectively faced with the choice of selling stocks from the fund’s portfolio or of selling new participations to cover redemptions. The bank might have a pecuniary incentive to choose the latter course in order to avoid the cost of stock transactions undertaken solely for redemption purposes.

Promotional incentives might also be created by the circumstance that the bank’s fund would be in direct competition with mutual funds that, from the point of view of the investor, offered an investment opportunity comparable to that offered by the bank. The bank would want to be in a position to show to the prospective customer that its fund was more attractive than the mutual funds offered by others. The bank would have a salesman’s stake in the performance of the fund, for if the fund were less successful than the competition the bank would lose business and the resulting fees.

A bank that operated an investment fund would necessarily put its reputation and facilities squarely behind that fund and the investment opportunity that the fund offered. The investments of the fund might be conservative or speculative, but in any event the success or failure of the fund would be a matter of public record. Imprudent or unsuccessful management of the bank’s investment fund could bring about a perhaps unjustified loss of public confidence in the bank itself. If imprudent management should place the fund in distress, a bank might find itself under pressure to rescue the fund through measures inconsistent with sound banking.

The promotional and other pressures incidental to the operation of an investment fund, in other words, involve the same kinds of potential abuses that Congress intended to guard against when it legislated against bank security affiliates. It is not the slightest reflection on the integrity of the mutual fund industry to say that the traditions of that industry are not necessarily the conservative traditions of commercial banking. The needs and interests of a mutual fund enterprise more nearly approximate those of securities underwriting, the activity in which bank security affiliates were primarily engaged. When a bank puts itself in competition with mutual funds, the bank must make an accommodation to the kind of ground rules that Congress firmly concluded could not be prudently mixed with the business of commercial banking.

And there are other potential hazards of the kind Congress sought to eliminate with the passage of the Glass-Steagall Act. The bank’s stake in the investment fund might distort its credit decisions or lead to unsound loans to the companies in which the fund had invested. The bank might exploit its confidential relationship with its commercial and industrial creditors for the benefit of the fund. The bank might undertake, directly or indirectly, to make its credit facilities available to the fund or to render other aid to the fund inconsistent with the best interests of the bank’s depositors. The bank might make loans to facilitate the purchase of interests in the fund. The bank might divert talent and resources from its commercial banking operation to the promotion of the fund. Moreover, because the bank would have a stake in a customer’s making a particular investment decision — the decision to invest in the bank’s investment fund — the customer might doubt the motivation behind the bank’s recommendation that he make such an investment. If the fund investment should turn out badly there would be a danger that the bank would lose the good will of those customers who had invested in the fund. It might be unlikely that disenchantment would go so far as to threaten the solvency of the bank. But because banks are dependent on the confidence of their customers, the risk would not be unreal.

These are all hazards that are not present when a bank undertakes to purchase stock for the account of its individual customers or to commingle assets which it has received for a true fiduciary purpose rather than for investment. These activities, unlike the operation of an investment fund, do not give rise to a promotional or salesman’s stake in a particular investment; they do not involve an enterprise in direct competition with aggressively promoted funds offered by other investment companies; they do not entail a threat to public confidence in the bank itself; and they do not impair the bank’s ability to give disinterested service as a fiduciary or managing agent. In short, there is a plain difference between the sale of fiduciary services and the sale of investments.

VI

The Glass-Steagall Act was a prophylactic measure directed against conditions that the experience of the 1920’s showed to be great potentials for abuse. The literal terms of that Act clearly prevent what the Comptroller has sought to authorize here. Because the potential hazards and abuses that flow from a bank’s entry into the mutual investment business are the same basic hazards and abuses that Congress intended to eliminate almost 40 years ago, we cannot but apply the terms of the federal statute as they were written. We conclude that the operation of an investment fund of the kind approved by the Comptroller involves a bank in the underwriting, issuing, selling, and distributing of securities in violation of §§ 16 and 21 of the Glass-Steagall Act. Accordingly, we reverse the judgment in No. 61 and vacate the judgment in No. 59.

It is so ordered.

The Chief Justice took no part in the consideration or decision of these cases.

Mr. Justice Harlan,

dissenting.

The Court holds that the Investment Company Institute has standing as a competitor to challenge the action of the Comptroller of the Currency because Congress “arguably legislated against the competition that the petitioners sought to challenge, and from which flowed their injury.” The ICI, says the Court, is entitled to prevail because “Congress did legislate against the competition that the petitioners challenge.” Ante, at 620, 621 (emphasis added.) I understand the Court to mean by “legislated against the competition” not only that Congress prohibited banks from entering this field of endeavor, but that it did so in part for reasons stemming from the fact of the resulting competition. See ante, at 631-634, 636-638. However, the Court cannot mean by this phrase that it was Congress’ purpose to protect petitioners’ class against competitive injury for, as all three judges on the court below agreed, neither the language of the pertinent provisions of the Glass-Steagall Act nor the legislative history evinces any congressional concern for the interests of petitioners and others like them in freedom from competition. Indeed, it appears reasonably plain that, if anything, the Act was adopted despite its anticom-petitive effects rather than because of them. Cf. ante, at 630, 636.

This being the case, the discussion of standing in Hardin v. Kentucky Utilities Co., 390 U. S. 1, 5-6 (1968), is directly in point:

“This Court has, it is true, repeatedly held that the economic injury which results from lawful competition cannot, in and of itself, confer standing on the injured business to question the legality of any aspect of its competitor’s operations. Railroad Co. v. Ellerman, 105 U. S. 166 (1882); Alabama Power Co. v. Ickes, 302 U. S. 464 (1938); Tennessee Power Co. v. TVA, 306 U. S. 118 (1939); Perkins v. Lukens Steel Co., 310 U. S. 113 (1940). But competitive injury provided no basis for standing in the above cases simply because the statutory and constitutional requirements that the plaintiff sought to enforce were in no way concerned with protecting against competitive injury. In contrast, it has been the rule, at least since the Chicago Junction Case, 264 U. S. 258 (1924), that when the particular statutory provision invoked does reflect a legislative purpose to protect a competitive interest, the injured competitor has standing to require compliance with that provision.”

I do not believe that Data Processing Service v. Camp, 397 U. S. 150 (1970), and Arnold Tours v. Camp, 400 U. S. 45 (1970), require the opposite result from the one suggested by this passage from Hardin. Data Processing held that, aside from “case-or-controversy” problems not present here, the crucial question in ruling on a challenge to standing is “whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” 397 U. S., at 153. That question was resolved in favor of the data processors because “§ 4 [of the Bank Service Corporation Act] arguably brings a competitor within the zone of interests protected by it.” Id., at 156. In Arnold Tours the Court observed that it was again dealing with § 4 of the Bank Service Corporation Act, and that “[njothing in the [Data Processing] opinion limited § 4 to protecting only competitors in the data-processing field.” 400 U. S., at 46. Plainly these cases provide little support for the Court’s conclusion here that competitors, as such, have standing under the Glass-Steagall Act as well.

The Court’s holding — that if Congress prohibited entry into a field of business for reasons relating to competition, then a competitor has standing to seek observance of the prohibition — has a surface appeal, but, so far as I can see, no sound analytical basis. Certainly none is offered. In any event, it appears to me that our prior decisions, particularly Hardin, require the conclusion that the petitioners in No. 61 lack standing to challenge the Comptroller’s action. While I would not foreclose the possibility that those cases should be further modified in some respect, the Court has not undertaken to reexamine them, and I deem it inappropriate for me to do so as a single Justice.

The view that I take with regard to petitioners’ standing in No. 61 makes it unnecessary for me to reach the merits in that case, but it does require me to rule on the contentions made in No. 59. Like Me. Justice Black-mun, see post, at 645, I find lengthy discussion of this topic superfluous. At issue is the propriety of the action of the Securities and Exchange Commission in increasing from two to three the number of seats open to bank officers on the five-man committee which serves as a board of directors of the account. Substantially for the reasons given by the judges of the court below, 136 U. S. App. D. C. 241, 249-253, 266, 420 F. 2d 83, 91-95, 108, I am of the opinion that the Commission did not abuse its discretion in determining that the facts of this case made appropriate an exercise of the dispensing power explicitly vested in the Commission by 15 U. S. C. § 80a-6 (c).

For the reasons given herein, I would affirm the two judgments under review.

Mr. Justice Blackmun,

dissenting.

The Court’s opinion and judgments here, it seems to me, are based more on what is deemed to be appropriate and desirable national banking policy than on what is a necessary judicial construction of the Glass-Steagall Act of almost four decades ago. It is a far different thing to be persuaded that it is wise policy to keep national banks out of the business of operating mutual investment funds, despite the safeguards that the Comptroller of the Currency and the Securities and Exchange Commission have provided, than it is to be persuaded that existing and somewhat ancient legislation requires that result. Policy considerations are for the Congress and not for this Court.

I recognize and am fully aware of the factors and of the economic considerations that led to the enactment of the Glass-Steagall Act. The second and third decades of this century are not the happiest chapter in the history of American banking. Deep national concerns emerged from the distressful experiences of those years and from the sad ends to which certain banking practices of that time had led the industry. But those then-prevailing conditions, the legislative history, and the remedy Congress provided, prompt me to conclude that what was proscribed was the involvement and activity of a national bank in investment, as contrasted with commercial, banking, in underwriting and issuing, and in acquiring speculative securities for its own account. These were the banking sins of that time.

The propriety, however, of a national bank’s acting, when not in contravention of state or local law, as an inter vivos or testamentary trustee, as an executor or administrator, as a guardian or committee, as a custodian, and, indeed, as an agent for the individual customer’s securities and funds, see Carcaba v. McNair, 68 F. 2d 795, 797 (CA5 1934), cert. denied, 292 U. S. 646, is not, and could not be, questioned by the petitioners here or by the Court. This being so, there is, for me, an element of illogic in the ready admission by all concerned, on the one hand, that a national bank has the power to manage, by way of a common trust arrangement, those funds that it holds as fiduciary in the technical sense, and to administer separate agency accounts, and in the rejection, on the other hand, of the propriety of the bank’s placing agency assets into a mutual investment fund. The Court draws its decisional line between the two. I find it impossible to locate any statutory root for that line drawing. To use the Glass-Steagall Act as a tool for that distinction is, I think, a fundamental misconception of the statute.

Accordingly, I am not convinced that the Congress, by that Act or otherwise, as yet has proscribed the banking endeavors under challenge here by competitors in a highly competitive field. None of the judges of the Court of Appeals was so convinced, and neither was the Comptroller of the Currency whose expertise the Court concedes. I would leave to Congress the privilege of now prohibiting such national bank activity if that is its intent and desire.

In Parts IV and V of its opinion the Court outlines hazards that are present when a bank indulges in specified activities. The Court then states, in the last paragraph of Part V, that those hazards are not present when a bank undertakes to purchase stock for individual customers, or to commingle assets held in its several fiduciary capacities, and the like. I must disagree. It seems to me that exactly the same hazards are indeed present. A bank offers its fiduciary services in an atmosphere of vigorous competition. One need only observe the current and continuous advertising of claimed fiduciary skills to know that this is so and that the business is one for profit. In the fiduciary area a bank is engaged in direct competition with other investment concepts and with nonbanking fiduciaries. Failure or misadventure of a single trust may constitute a threat to public confidence among the bank’s other trust beneficiaries, prospective trustors, and even the commercial activities of the bank itself. It has an inevitable adverse effect upon the bank’s fulfillment of what is fashionably described today as its “full service.”

Thus I feel that the Court overstates its case when it seeks to diminish the significance of these hazards in the fiduciary area as contrasted with mutual fund operation. After all, we deal here with something akin to the traditional banking function and with a device that makes available for the small investor what is already available for the large investor by way of the individual agency account.

What the Court decries in the investment fund is the combination of three banking operations, each concededly permissible: acting as agent for the customer, purchasing for that customer, and pooling assets. It is said that “the union of these powers” gives birth to something “of a different character” and is statutorily prohibited. I doubt that those three powers, each allowed by the controlling statutes, somehow operate in combination to produce something forbidden by those same controlling statutes, and I doubt that the unitization is something more than or something different from the mere sum of its parts and that it thereby expands to achieve offensiveness under the Glass-Steagall Act.

With my position as to the Act only a minority one, detailed discussion of the additional issue, raised in No. 59, as to the propriety of the exemption granted by the Securities and Exchange Commission, would be superfluous. Suffice it to say that I am in accord with the views expressed in the respective opinions on this issue in the Court of Appeals, 136 U. S. App. D. C. 241, 249-253, 266, 420 F. 2d 83, 91-95, and 108, and, in particular, by Chief Judge Bazelon when he carefully examined the four “danger zones” considered by the SEC and the protections erected against them, and then concurred in the Commission's exercise of judgment. I, too, feel that the Commission did not act arbitrarily or exceed its statutory authority and that its determination deserves support here.

I would affirm the judgments of the Court of Appeals.

         12 CFR Pt. 9 (1970).

       The provisions of the Glass-Steagall Act are codified in various sections scattered through Title 12 of the United States Code.

       The exemption was granted in response to an application filed pursuant to § 6 (c) of the Act, 54 Stat. 802, 15 U. S. C. § 80a-6 (c).

       274 F. Supp. 624.

       136 U. S. App. D. C. 241, 420 F. 2d 83.

       397 U. S. 986.

       12 CFR §9.18 (a) provides that: “Where not in contravention of local law, funds held by a national bank as fiduciary may be invested collectively: ... (3) In a common trust fund, maintained by the bank exclusively for the collective investment and reinvestment of monies contributed thereto by the bank in its capacity as managing agent under a managing agency agreement expressly providing that such monies are received by the bank in trust . . . .”

       For example, the investment fund plan as established does not provide that the bank receives the investor’s money in trust.

       The opinion of the Commission and the dissent of Commissioner Budge are unofficially reported at CCH Fed. Sec. L. Rep., 1964-1966 Decisions, ¶ 77,332.

       Section 16, as enacted in 1933, granted no authority to purchase stock for the account of customers and prohibited any purchase of stock by a national bank. The 1935 Amendments to the National Bank Act included a provision intended to make it clear that a national bank may buy stock for the account of customers but not for its own account. S. Rep. No. 1007, 74th Cong., 1st Sess., 17; H. R. Rep. No. 742, 74th Cong., 1st Sess., 18.

       A mutual fund is an open-end investment company. The Investment Company Act of 1940 defines an investment company as an “issuer” of “any security” which “is or holds itself out as being engaged primarily ... in the business of investing ... in securities . . . .” 15 U. S. C. §§ 80a-2 (a) (21), 80a-3 (a)(1). An open-end company is one “which is offering for sale or has outstanding any redeemable security of which it is the issuer.” 15 U. S. C. § 80a-5 (a) (1). An investment company also includes a “unit investment trust”: an investment company which, among other things, “is organized under a . . . contract of . . . agency . . . and . . . issues only redeemable securities, each of which represents an undivided interest in a unit of specified securities . . . .” 15 U. S. C. § 80a-4 (2).

       Section 20 of the Act, 12 U. S. C. § 377, prohibits affiliations between banks that are members of the Federal Reserve System and organizations “engaged principally in the issue, flotation, underwriting, public sale, or distribution at wholesale or retail or through syndicate participation of stocks, bonds, debentures, notes, or other securities . . . .” And § 32, 12 U. S. C. § 78, provides that no officer, director, or employee of a bank in the Federal Reserve System may serve at the same time as officer, director, or employee of an association primarily engaged in the activity described in § 20. The petitioners contend that if a bank’s investment fund be conceived as an entity distinct from the bank, then its affiliation with the investment fund is in violation of these sections.
      The Board of Governors has had occasion to consider whether an investment fund of the type operated by First National City Bank involves a violation of § 32 of the Glass-Steagall Act. 12 CFR § 218.111 (1970). The Board concluded, based on “general principles that have been developed in respect to the application of section 32,” that it would not violate that section for officers of the bank’s trust department to serve at the same time as officers of the investment fund because the fund and the bank “constitute a single entity,” and the fund “would be regarded as nothing more than an arm or department of the bank.” The Board called attention to § 21 whose provisions it summarized as forbidding “a securities firm or organization to engage in the business of receiving deposits, subject to certain exceptions.” The Board, however, declined to express a position concerning the applicability of this section because of its policy not to express views as to the meaning of statutes that carry criminal penalties. Nor has the Board expressed its views on the application of any other provision of the banking law to the creation and operation of a bank investment fund.
      We have no doubt but that the Board’s construction and application of § 32 is both reasonable and rational. The investment fund service authorized by the Comptroller’s regulation and as provided by the First National City Bank is a service available only to customers of the bank. It is held out as a service provided by the bank, and the investment fund bears the bank’s name. The bank has effective control over the activities of the investment fund. Moreover, there is no danger that to characterize the bank and its fund as a single entity will disserve the purpose of Congress. The limitations that the banking laws place on the activities of national banks are at least as great as the limitations placed on the activities of their affiliates. For example, § 32 refers to the “public sale” of stocks or securities while § 21 proscribes the “selling” of stocks or securities.

       A law review article written by Comptroller Saxon and Deputy Comptroller Miller in 1965 did take the position that the Glass-Steagall Act is inapplicable to bank common trust funds. Saxon & Miller, Common Trust Funds, 53 Geo. L. J. 994 (1965). But this view was predicated on the argument that when Congress in 1936 provided a tax exemption for common trust funds maintained by a bank, now 26 U. S. C. § 584, it contemplated the exemption of common trust funds created for strictly investment purposes, and that consequently Congress must have assumed that the banking laws, which otherwise appear to proscribe such funds, were not applicable. Id., at 1008-1010. Whatever the merits of this argument, it has no bearing on the instant litigation. It is clear that the collective investment funds authorized by Regulation 9 need not qualify for tax exemption under § 584; the First National City Bank Fund does not so qualify. Moreover, the position advanced in the brief filed on behalf of the Comptroller in this litigation is not that the banking laws are inapplicable to bank investment funds, but rather that the creation and operation of such funds are consistent with the banking laws.
      It is noteworthy that the § 584 exemption is available to common trust funds “maintained by a bank . . . exclusively for the collective investment and reinvestment of moneys contributed thereto by the bank in its capacity as a trustee, executor, administrator, or guardian . . . (Emphasis added.) This language, which makes no reference to contributions by the bank in its capacity as managing agent, is identical to that exempting such common trust funds from the Investment Company Act of 1940, 15 U. S. C. § 80a-3 (c)(3). The Securities and Exchange Commission has taken the position that commingled managing agency accounts do not come within § 80a-3 (c) (3). See Statement of Commissioner Cary, Hearings on Common Trust Funds — Overlapping Responsibility and Conflict in Regulation, before a Subcommittee of the House Committee on Government Operations, 88th Cong., 1st Sess., 3 (1963).

       Hearings Pursuant to S. Res. 71 before a Subcommittee of the Senate Committee on Banking and Currency (hereafter 1931 Hearings), 71st Cong., 3d Sess., 40 (1931); 1920 Report of the Comptroller of the Currency, quoted id., at 1067, 1068. Senator Glass, commenting on earlier banking legislation, said, “We tried to, and thought at the time we had, removed the system as far as possible from the influence of the stock market.” Id., at 262.

        Id., at 1052.

       Report on Investment Trusts and Investment Companies, pt. 2, H. R. Doc. No. 70, 76th Cong., 1st Sess., 59 (1939).

       1931 Hearings 116-117, 1017, 1068.

       See S. Rep. No. 77, 73d Cong., 1st Sess., 6, 8, 10.

         Id., at 18; see 1931 Hearings 366; 75 Cong. Rec. 9911 (remarks of Sen. Bulkley).

       1931 Hearings 41, 192, 1056; 1920 Report of the Comptroller of the Currency, quoted id., at 1067.

       1931 Hearings 20, 237, 1063. See also id., at 1058, where it is said:
      “Activities of a bank’s security affiliate as a holding or finance company or an investment trust are also fraught with the danger of large losses during a deflation period. Bank affiliates of this kind show a much greater tendency to operate with borrowed funds than do organizations of this type which are independent of banks, the reason being that the identity of control and management which prevails between the bank and its affiliate tends to encourage reliance upon the lending facilities of the former.”

       See id., at 1064; 75 Cong. Rec. 9912 (remarks of Sen. Bulkley).

       See 1931 Hearings 87 (remarks of Chairman Glass).

       See 77 Cong. Rec. 4028 (remarks of Rep. Fish).

       1931 Hearings 1064.

         See 75 Cong. Rec. 9912:
      “And although such a loss would possibly not result in any substantial impairment of the resources of the banking institution owning that affiliate . . . there can be no doubt that the whole transaction tends to discredit the bank and impair the confidence of its depositors.” (Remarks of Sen. Bulkley.)

       S. Rep. No. 77, 73d Cong., 1st Sess., 9-10.

       1931 Hearings 1006-1029; S. Rep. No. 77, 73d Cong., 1st Sess., 8-9.

       75 Cong. Rec. 9884. See also S. Rep. No. 77, 73d Cong., 1st Sess., 8:
      “The outstanding development in the commercial banking system during the prepanic period was the appearance of excessive security loans, and of overinvestment in securities of all kinds. The effects of this situation in changing the whole character of the banking problem can hardly be overemphasized. National banks were never intended to undertake investment banking business on a large scale, and the whole tenor of legislation and administrative rulings concerning them has been away from recognition of such a growth in the direction of investment banking as legitimate.”
      In the same vein Representative Steagall said:
      “Our great banking system was diverted from its original purposes into investment activities ....
      “The purpose of the regulatory provisions of this bill is to call back to the service of agriculture and commerce and industry the bank credit and the bank service designed by the framers of the Federal Reserve Act.” 77 Cong. Rec. 3835.

       75 Cong. Rec. 9912.

       1931 Hearings 237; cf. id., at 1064.

        Id., at 266, 300, 311.

       75 Cong. Rec. 9912.

       S. Res. 71, 71st Cong., 2d Sess., is reprinted in S. Rep. No. 77, 73d Cong., 1st Sess., 1.

       1931 Hearings 1057. See also id., at 307.

       See also supra, n. 21.

       See 26 Fed. Reserve Bull. 393 (1940), quoted supra, at 621.

         “It is equally clear that giving even the broadest reading of the legislative history embellishing the Act will not support the conclusion that Congress meant to bestow upon Appellees any protection from competitive injury.” 136 U. S. App. D. C. 241, 263, 420 F. 2d 83, 105 (Burger, J., joined by Miller, J.) (footnote omitted); see also id., at 254, 256-258, 420 F. 2d, at 96, 98-100 (Bazelon, C. J.).

       See also Barlow v. Collins, 397 U. S. 159, 164 (1970).

       For one suggestion to this effect, see Jaffe, Standing Again, 84 Harv. L. Rev. 633 (1971).

       By virtue of the “person or party aggrieved” provision of the Investment Company Act, 15 U. S. C. §80a-42(a), there is no difficulty supporting petitioner’s standing in No. 59.


source: Caselaw Access Project

author: Mr. Justice White Mr. Justice Brennan, Mr. Justice Marshall,

license: Public Domain

text:
    WILLIAMS v. UNITED STATES
    No. 81.
    Argued October 21, 1970
    Decided April 5, 1971

      White, J., announced the Court’s judgment and delivered an opinion, in which Burger, C. J., and Stewart and BlackmuN, JJ., joined. Stewart, J., filed a separate statement, post, p. 660. BreN-NAN, J., filed an opinion concurring in the result, post, p. 660. HarlaN, J., filed an opinion concurring in the judgment in No. 82 and dissenting in No. 81, post, p. 675. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 665. BlacK, J., filed a statement concurring in the result, post, p. 660. Douglas, J., took no part in the consideration or decision of these cases.

      Henry J. Florence argued the cause for petitioner in No. 81. With him on the brief was Philip M. Haggerty. Charles A. Miller, by appointment of the Court, 396 U. S. 1065, argued the cause and filed briefs for petitioner in No. 82.

      James van R. Springer argued the cause for the United States in both cases. On the brief in No. 81 were Solicitor General Griswold, Assistant Attorney General Wilson, Francis X. Beytagh, Jr.,■ Richard B. Stone, and Beatrice Rosenberg. On the brief in No. 82 were Solicitor General Griswold, Assistant Attorney General Wilson, Mr. Bey-tagh, and Miss Rosenberg.

      Together with No. 82, Elkanich v. United States, also on certiorari to the same court.

   Mr. Justice White

announced the judgment of the Court and an opinion in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Blackmun join.

The principal question in these cases is whether Chimel v. California, 395 U. S. 752 (1969), should be applied retroactively either to the direct review of petitioner Williams’ conviction or in the collateral proceeding initiated by petitioner Elkanich.

I

In No. 81, federal agents on March 31, 1967, secured a warrant to arrest petitioner Williams on charges of selling narcotics in violation of 21 U. S. C. § 174. Williams was arrested at his home that night. A quantity of heroin was discovered and seized in the course of a search incident to the arrest. The trial court sustained the search and the heroin was introduced in evidence. Williams was convicted and sentenced to a 10-year prison term. The judgment of conviction was affirmed by the Court of Appeals for the Ninth Circuit. Williams v. United States, 418 F. 2d 159 (CA9 1969). That court held: (1) that our intervening decision in Chimel v. California, supra, was not retroactive and did not govern searches carried out prior to June 23, 1969, the date of that decision; and (2) that the search was valid under pre-Chimel law evidenced by United States v. Rabinowitz, 339 U. S. 56 (1950), and Harris v. United States, 331 U. S. 145 (1947). The Court of Appeals also rejected a claim that the search was invalid because the arrest was a mere pretext for an unwarranted search. We granted certiorari. 397 U. S. 986 (1970).

In No. 82, petitioner Elkanich was convicted on three counts of selling narcotics in violation of 21 U. S. C. § 174. He was sentenced to three concurrent 10-year sentences. The evidence introduced included marked bills given by federal agents to an intermediary to use in purchasing narcotics. The bills were seized during a search of petitioner’s apartment following his arrest there. The search was challenged at trial on the ground that the arrest was invalid. Both the arrest and the incident search were upheld at trial and on direct appeal, Elkanich v. United States, 327 F. 2d 417 (CA9 1964), as well as by the District Court and the Court of Appeals in subsequent proceedings brought by petitioner under 28 U. S. C. § 2255. We granted the petition for cer-tiorari to consider the effect, if any, of our Chimel decision, which intervened when the appeal from denial of petitioner’s § 2255 application was pending in the Court of Appeals. 396 U. S. 1057 (1970). We affirm the judgments in both cases.

II

Aside from an insubstantial claim by Williams that his arrest was invalid, neither petitioner in this Court suggests that his conviction was unconstitutionally obtained; no evidence and no procedures were employed at or before trial that violated any then-governing constitutional norms. Concededly, the evidence seized incident to the arrest of both petitioners was both properly seized and admitted under the Fourth Amendment as construed and applied in Harris in 1947 and Rabinowitz in 1950. Both Harris and Rabinowitz, however, were disapproved by Chimel. That case considerably narrowed the permissible scope of searches incident to arrest, and petitioners argue that the searches carried out in these cases, if judged by Chimel standards, were unreasonable under the Fourth Amendment and the evidence seized inadmissible at trial. However, we reaffirm our recent decisions in like situations: Chimel is not retroactive and is not applicable to searches conducted prior to the decision in that case. Desist v. United States, 394 U. S. 244 (1969).

In Linkletter v. Walker, 381 U. S. 618 (1965), we declined to give complete retroactive effect to the exclusionary rule of Mapp v. Ohio, 367 U. S. 643 (1961). Relying on prior cases, we firmly rejected the idea that all new interpretations of the Constitution must be considered always to have been the law and that prior constructions to the contrary must always be ignored. Since that time, we have held to the course that there is no inflexible constitutional rule requiring in all circumstances either absolute retroactivity or complete prospec-tivity for decisions construing the broad language of the Bill of Rights. Nor have we accepted as a dividing line the suggested distinction between cases on direct review and those arising on collateral attack. Rather we have proceeded to “weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Linkletter, supra, at 629.

Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.

It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials. Mapp v. Ohio cast no doubt on the relevance or probity of illegally seized evidence but excluded it from criminal trials to deter official invasions of individual privacy protected by the Fourth Amendment. Katz v. United States, 389 U. S. 347 (1967), overruled Olmstead v. United States, 277 U. S. 438 (1928), and Gold man v. United States, 316 U. S. 129 (1942), and gave expanded Fourth Amendment protection against non-consensual eavesdropping. It followed that evidence obtained by nontrespassory electronic surveillance of a public telephone booth became subject to the exclusionary rule, which had been fashioned by the Court to exact compliance with the Amendment rather than to protect defendants from conviction on untrustworthy evidence. Thus the Court, when it came to consider the retroactivity of Mapp and Katz, was dealing with cases quite different from those situations where emerging constitutional doctrine casts such doubt upon the soundness of some aspect of prior trials that State and Federal Governments were disentitled from further pursuing the goals of their criminal law against defendants convicted in such prior trials.

The petitioners in both Linkletter and Desist were convicted in proceedings that conformed to all then-applicable constitutional norms. In both cases the government involved had a concededly guilty defendant in custody and substantial unsatisfied interests in achieving with respect to such defendant whatever deterrent and rehabilitative goals underlay its criminal justice system. Each defendant, Linkletter by the habeas corpus route, and Desist on direct appeal, claimed the benefit of a later decided case and demanded a new trial. But ordering new trials would have involved not only expense and effort but the inevitable risk of unavailable witnesses and faulty memories; the authorities might not have had the evidence they once had and might have been foreclosed from obtaining other evidence they might have secured had they known the evidence they were using was constitutionally suspect. Moreover, it was not essential to the deterrent purpose of the exclusionary rule that Mapp and Katz be given retroactive effect; indeed that purpose would have been only marginally furthered by extending relief to Linkletter, Desist, and all others in comparable situations. In these circumstances, we found no constitutional warrant for setting aside either conviction.

III

Considering that Desist represents the sound approach to retroactivity claims in Fourth Amendment cases, we are confident that we are not constitutionally bound to apply the standards of Chimel to the cases brought here by Elkanich and Williams. Both petitioners were duly convicted when judged by the then-existing law; the authorities violated neither petitioner’s rights either before or at trial. No claim is made that the evidence against them was constitutionally insufficient to prove their guilt. And the Chimel rule will receive sufficient implementation by applying it to those cases involving the admissibility of evidence seized in searches occurring after Chimel was announced on June 23, 1969, and carried out by authorities who through mistake or ignorance have violated the precepts of that decision.

IV

Both from the course of decision since Linkletter and from what has been said in this opinion, it should be clear that we find no constitutional difference between the applicability of Chimel to those prior convictions that are here on direct appeal and those involving collateral proceedings. Nor in constitutional terms is there any difference between state and federal prisoners insofar as retroactive application to their cases is concerned.

We accept Mr. Justice Harlan’s truism, stated in dissent, that our task is to adjudicate cases and the issues they present, including constitutional questions where necessary to dispose of the controversy. Hence, we must resolve the Fourth Amendment issues raised by Elkanich and Williams. But this leaves the question of how those issues should be resolved. Assuming that neither has a colorable claim under the -pre-Chimel law but both would be entitled to relief if Clvimel is the governing standard, which constitutional standard is to rule these cases? This is the unavoidable threshold issue — as Mr. Justice Harlan describes it in discussing cases before us on collateral review, a “choice of law problem.” Post, at 682.

The opinions filed in these cases offer various answers to the question. We would judge the claims in both Williams and Elkanich by the law prevailing when petitioners were searched. Surely this resolution is no more legislative, and no less judicial, than that of Mr. Justice Harlan. He feels compelled to apply new overruling decisions to cases here on direct review but deems himself free, with some vague and inscrutable exceptions, to refuse the benefits of new decisions to those defendants who collaterally attack their convictions. The latter judgment seems to rest chiefly on his own assessment of the public interest in achieving finality in criminal litigation. The former is not explained at all except by repeated assertions that cases here on direct review are different. But we have no authority to upset criminal convictions at will. Does the Constitution compel us to apply Chimel retroactively and set aside Williams’ conviction when he was convicted on sound evidence secured in conformity with the then-applicable constitutional law as announced by this Court? As we have said, we think not — no more so than it compels applying the teachings of Chimel in reviewing the denial of Elkanich’s petition for collateral relief. Other than considering it inherent in the process of judicial review, Mr. Justice Harlan does not directly address the question. Nor does he purport to explain how the purpose of the exclusionary rule fashioned by this Court as a Fourth Amendment mechanism will be at all furthered by mechanically affording Williams the benefit of Chimel.

We are also unmoved by the argument that since the petitioners in cases like Mapp, Duncan v. Louisiana, 391 U. S. 145 (1968), and Katz have been given relief, when it was only by chance that their cases first brought those issues here for decision, it is unfair to deny relief to others whose cases are as thoroughly deserving. It would follow from this argument that all previous convictions that would be vulnerable if they occurred today would be set aside. Surely this is the tail wagging the dog. The argument was fairly met and adequately disposed of in Stovall v. Denno, 388 U. S. 293, 301 (1967). We see no reason to repeat or reconsider what we said in that case.

It is urged that the prevailing approach to retroac-tivity involves confusing problems of identifying those “new” constitutional interpretations that so change the law that prospectivity is arguably the proper course. But we have no such problems in these cases since to reach the result it did the Court in Chimel found it necessary to disapprove Harris and Rabinowitz and under those cases the search in Chimel and the searches now before us would have been deemed reasonable for Fourth Amendment purposes. Moreover, the idea that circumstances may require prospectivity for judicial decisions construing the Constitution is an old one; it is not a new problem for the courts. It has not proved unmanageable and we doubt that courts and judges have suddenly lost the competence to deal with the problems that it may present.

The judgments are

Affirmed.

While joining the plurality opinion, Mr. Justice Stewart would also affirm the judgment in No. 82, Elkanich v. United States, on the alternative ground that the issue presented is not one cognizable in a proceeding brought under 28 U. S. C. § 2255. See Harris v. Nelson, 394 U. S. 286, 307 (dissenting opinion); Kaufman v. United States, 394 U. S. 217, 242 (dissenting opinion); Chambers v. Maroney, 399 U. S. 42, 54 (concurring opinion).

Mr. Justice Black, while adhering to his opinion in Linkletter v. Walker, 381 U. S. 618, 640 (1965), concurs in the result on the ground that he believes that Chimel v. California, 395 U. S. 752 (1969), was wrongly decided.

Mr. Justice Douglas took no part in the consideration or decision of these cases.

[For opinion of Mr. Justice Harlan, concurring in the judgment in No. 82 and dissenting in No. 81, see post, p. 675.]

Mr. Justice Brennan,

concurring in the result.

Chimel v. California, 395 U. S. 752 (1969), applied principles established by a long line of cases to determine the permissible scope of a warrantless search sought to be justified as the necessary incident of a lawful arrest. But in applying these principles to the circumstances involved in Chimel, we were compelled to overrule Harris v. United States, 331 U. S. 145 (1947), and United States v. Rabinowitz, 339 U. S. 56 (1950). Harris and Rabino-witz were founded on “little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests.” Chimel, supra, at 764-765; see United States v. Rabinowitz, supra, at 83 (Frankfurter, J., dissenting). By the time of Chimel, this view had long since been rejected; but until that day, Harris and Rabinowitz survived as direct authority for the proposition that a lawful arrest would somehow justify a war-rantless search of the premises on which the arrest was made, beyond the immediate reach of the person arrested.

Accordingly, we are presented in these cases with the question whether Chimel should be applied to require the exclusion at trial of evidence which is the fruit of a search, carried out before our decision in Chimel, and which would be lawful if measured by the standards of Harris and Rabinowitz, but unlawful under the rule of Chimel. The Court today holds that the fruits of searches made prior to our decision in Chimel may be used in criminal trials if the searches may be justified under the standards of Harris and Rabinowitz as those standards had previously been applied. See, e. g., Von Cleef v. New Jersey, 395 U. S. 814 (1969). I agree. In Stovall v. Denno, 388 U. S. 293, 297 (1967), we said that

“[t]he criteria guiding resolution of [this] question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”

All three factors imply that the rule of Chimel should be applied only to searches carried out after Chimel was decided.

I

Like the Fifth Amendment’s protection against compulsory self-incrimination, the warrant requirement of the Fourth Amendment stakes out boundaries beyond which the government may not tread in forcing evidence or information from its citizens. When coercion, impermissible under the Fifth Amendment, has actually produced an involuntary statement, we have invariably held that the fruits of that unconstitutional coercion may not be used to prosecute the individual involved for crime. E. g., Rochin v. California, 342 U. S. 165, 173 (1952) (Frankfurter, J.); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Boyd v. United States, 116 U. S. 616, 630-635, 638 (1886). Exclusion of statements impermissibly coerced is not merely a device to deter government agents from improper conduct in the future. Exclusion of coerced testimony is part and parcel of the privilege against self-incrimination. Likewise, when a search impermissible under the Fourth Amendment results in the seizure of evidence, exclusion of the fruits of that unconstitutional invasion is required not merely in hope of deterring unconstitutional searches in the future, but in order to vindicate the right of privacy guaranteed by the Fourth Amendment. See Boyd v. United States, supra; Weeks v. United States, 232 U. S. 383, 390-394, 398 (1914); Mapp v. Ohio, 367 U. S. 643, 656, 660 (1961). Exclusion of evidence in order to vindicate the right of privacy, however, does not improve the reliability of the factfinding process at trial. See Desist v. United States, 394 U. S. 244, 249-250 (1969), and cases cited. Accordingly, this factor does not require that the standards of Chimel be retroactively applied. Desist v. United States, supra; Stovall v. Denno, 388 U. S., at 297-299.

II

The factor of reliance by law-enforcement officials on Harris and Rabinowitz points in the same direction. As we recognized in Chimel itself, Fourth Amendment jurisprudence has often followed a tortuous path. 395 U. S., at 755-762. So long as Harris and Rabinowitz were not visibly overruled, we cannot be surprised that policemen and those who offer them guidance may not have scrutinized their doctrinal underpinnings for signs of erosion. And the extent of reliance, it appears, has been considerable. The Government represents, and petitioners do not seriously dispute, that a very substantial number of searches have been carried out in reliance upon these cases. In many of these, there is no reason to doubt that a warrant could and would have been obtained if the officials involved had been aware that a warrant would be required. This factor as well, therefore, implies that Chimel should have only prospective application.

Ill

Finally, we must evaluate the probable impact of retroactive application on the administration of justice. Persons convicted through the use of evidence inadmissible under Chimel have been found to have- engaged in conduct that the government involved may legitimately punish. Chimel casts no doubt upon the propriety of the government’s interest in punishing those who have engaged in such conduct. Accordingly, it may fairly be assumed that retroactive application of its standards would result in a substantial number of retrials. Yet Chimel likewise casts no doubt upon the reliability of the initial determination of guilt at the previous trial. Moreover, the legitimate reliance of law-enforcement officials on Harris and Rabinowitz, as already noted, may well have led them to conduct a warrantless search merely because the warrant requirement, although easily satisfied, was understandably not understood. The consequence of this is that retroactive application of the standards applied in Chimel would impose a substantial burden upon the federal and state judicial systems, while serving neither to redress knowing violations of individual privacy nor to protect a class of persons the government has no legitimate interest in punishing.

IY

This is not to say, however, that petitioners are to be denied relief because they are probably guilty. “ [T] here is always in litigation a margin of error, representing error in factfinding.” Speiser v. Randall, 357 U. S. 513, 525 (1958). The constitutional requirement that guilt in criminal cases be proved beyond a reasonable doubt serves to limit, but cannot eliminate, the number of criminal defendants found guilty who are in fact innocent. See In re Winship, 397 U. S. 358, 370-372 (1970) (concurring opinion). In the present cases, both petitioners asserted their innocence by pleading not guilty and going to trial; and petitioner in No. 81, whose case is here on direct review, raised in his petition for certiorari the question whether the evidence presented at trial was sufficient to support a finding of guilt. But this Court does not sit to review such questions. In denying retroactive application to the rule of Chimel, we neither do nor could determine that every person convicted by the use of evidence obtained contrary to that rule is in fact guilty of the crime of which he was convicted. The question we face is not the legitimacy or sincerity of petitioners’ claims of innocence, or indeed whether any such claims are expressly made at all. It is, instead, whether Chimel v. California compels us to conclude that the invasion of petitioners’ privacy, conducted in justifiable but mistaken reliance upon the continuing validity of Harris and Rabinowitz, requires the exclusion of the fruits of that invasion from the factfinding process at trial. I agree with the Court that it does not, and that the standards of Chimel should apply only to searches carried out after June 23, 1969.

Mr. Justice Marshall,

concurring in part and dissenting in part.

After studying afresh the pattern of the Court’s retro-activity decisions since Linkletter v. Walker, 381 U. S. 618 (1965), I conclude that a decision of this Court construing the Constitution should be applied retroactively to all cases involving criminal convictions not yet final at the time our decision is rendered. Sound jurisprudential reasoning, so well articulated by Mr. Justice Harlan in his separate opinion covering the present cases, post, p. 675, in my view requires that cases still on direct review should receive full benefit of our supervening constitutional decisions. I am persuaded that willingness to tolerate the inevitable costs and anomalies of the Court’s current approach to retroactivity is incompatible with the judicial duty of principled review of convictions not yet final.

I disagree somewhat with Mr. Justice Harlan as to the proper approach to retroactivity for cases arising on habeas corpus or other modes of collateral attack. In such cases I believe it is best to employ the three-part analysis that the plurality undertakes today in deciding the retroactivity of the rule in Chimel v. California, 395 U. S. 752 (1969). This mode of analysis was foreshadowed in Linkletter, where the question was whether the rule of Mapp v. Ohio, 367 U. S. 643 (1961), should be applied on collateral review. The method commends itself, once the point of finality after direct review is passed, as a careful and appropriate way of adjudicating the “procedural” rights of litigants in view of the purposes of a new decisional rule and the concerns of effective law enforcement. In particular, if the purposes of a new rule implicate decisively the basic truth-determining function of the criminal trial, then I believe the rule should be given full retroactive application, for the required constitutional procedure itself would then stand as a concrete embodiment of “the concept of ordered liberty.” Palko v. Connecticut, 302 U. S. 319, 325 (1937).

In light of the above, I concur in the Court’s disposition of No. 82. That case is before us on collateral review. Tor cases in such a posture the mode of analysis used by the plurality is appropriate, and I agree that the Chimel rule should not be applied retroactively to such cases.

No. 81 is before us on direct review. Since there is a clear violation of Chimel on the facts, I would reverse the judgment below, for I believe that the same constitutional rule should be applied to adjudicate the rights of the petitioner in No. 81 as was applied in Chimel’s case.

       The Court of Appeals correctly rejected Williams’ claim that his arrest was a pretext to make an otherwise invalid search. Williams v. United States, 418 F. 2d 159, 160-161 (CA9 1969). In his petition for certiorari, Williams also argued that there was insufficient proof of his knowledge of and control over the heroin found in the incidental search of his home, and thus that the Government had failed to prove constructive possession. This claim was neither briefed nor argued by the parties, and we decline to disturb the judgment of the Court of Appeals rejecting it. See 418 F. 2d, at 162-163.

       Petitioner Williams was arrested pursuant to a warrant in the living room of his residence shortly after midnight. Eight officers were involved, and the entire house was searched for a period of about one hour and 45 minutes. The heroin introduced at trial was found in a container on a closet shelf in one of the bedrooms. Williams, supra, n. 1, at 161. The Government does not argue that this search incident to arrest complies with Chimel.

      Elkanich was arrested without a warrant in his apartment. He does not argue that the arresting agents did not have probable cause to arrest but asserts that the search violated the Fourth Amendment. Three agents came to petitioner’s apartment, and, after the door was opened by his wife in response to a knock, entered and immediately arrested petitioner. After handcuffing Elkanich, the agent in charge called for assistance. Three more agents arrived within 15 minutes, and they searched the four-room apartment for over an hour. The supervising agent asked petitioner if he had any large sums of cash, guns, “or anything of that kind” in the apartment. Petitioner at first said no, but later indicated there was some money in a broom closet. The agent found $500 above the molding at the top of the closet, returned to the living room, and searched petitioner and his wife, finding $200 on each of them. Another agent then found a second roll of bills above the molding in the broom closet, this one totaling about $1,000. Two other items later introduced in evidence were seized from a closet in the living room. Of the total of nearly $2,000 seized, $1,550 consisted of marked bills used by an undercover agent to purchase narcotics from one Rios, whom petitioner was alleged to be supplying.
      The Government here argues that exigent circumstances justify the search without a warrant. The argument is that the presence of petitioner’s wife in the apartment left the agents only two choices: (1) to postpone searching until a warrant could be secured, a course which would entail either some sort of control over the wife’s activity or a risk that evidence would disappear; or (2) to search the apartment immediately, as they did.
      Because of our resolution of the retroactivity question, we find it unnecessary to pass on this contention.

       Many of the cases are discussed in the majority and dissenting opinions in Desist v. United States, 394 U. S. 244 (1969). These cases, and the general question of prospective effect for judicial decisions, have generated a substantial amount of commentary. See generally Bender, The Retroactive Effect of an Overruling Constitutional Decision: Mapp v. Ohio, 110 U. Pa. L. Rev. 650 (1962); Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 Va. L. Rev. 201 (1965); Levy, Realist Jurisprudence and Prospective Overruling, 109 U. Pa. L. Rev. 1 (1960); Meador, Habeas Corpus and the “Retroactivity” Illusion, 50 Va. L. Rev. 1115 (1964); 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 (1965); Schaefer, The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 N. Y. U. L. Rev. 631 (1967); Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719 (1966); Spruill, The Effect of an Overruling Decision, 18 N. C. L. Rev. 199 (1940); Note, Retroactivity of Criminal Procedure Decisions, 55 Iowa L. Rev. 1309 (1970); Comment, Linkletter, Shott, and the Retroactivity Problem in Escobedo, 64 Mich. L. Rev. 832 (1966); Comment, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale L. J. 907 (1962). Cf. Kitch, The Supreme Court’s Code of Criminal Procedure: 1968-1969 Edition, 1969 Sup. Ct. Rev. 155, 183-200.

       See post, p. 675 (Harlan, J., concurring in judgments and dissenting) . Compare 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 (1965), with Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719 (1966).
      In rejecting the distinction between cases pending on direct review and those on collateral attack, the Court in Johnson v. New Jersey, 384 U. S. 719, 732 (1966), stated:
      “Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced.”

       In our more recent opinions dealing with the retroactive sweep of our decisions in the field of criminal procedure, the approach mandated by Linkletter has come to be summarized in terms of a threefold analysis directed at discovering:
      “ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”

        Stovall v. Denno, 388 U. S. 293, 297 (1967); see also Desist v. United States, 394 U. S. 244, 249 (1969).

       See, e. g., Arsenault v. Massachusetts, 393 U. S. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving retroactive effect to Bruton v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956).

       The Fourth Amendment cases do not stand alone. We have reached similar results in holding nonretroactive new interpretations of the Fifth Amendment’s privilege against compelled self-incrimination, although some ramifications of the privilege have more connection with trustworthy results than does the exclusionary rule designed to enforce the Fourth Amendment. See Tehan v. Shott, 382 U. S. 406, 414-415, n. 12 (1966); Johnson v. New Jersey, 384 U. S. 719, 730 (1966); Desist v. United States, 394 U. S., at 249-250, n. 14; cf. Mackey v. United States, post, at 674-675. So, too, the right to jury trial secured by the Sixth Amendment “generally tends to prevent arbitrariness and repression,” DeStefano v. Woods, 392 U. S. 631, 633 (1968), and the holdings in United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), carry implications for the'reliability of identification testimony. But both Duncan v. Louisiana, 391 U. S. 145 (1968), obligating the States to recognize the right to jury trial by virtue of the Fourteenth and Sixth Amendments, and Wade and Gilbert were applied only prospectively in view of the countervailing considerations that retroactivity would entail. DeStefano v. Woods, supra; Stovall v. Denno, 388 U. S. 293 (1967).
      In both Johnson and Stovall, we frankly acknowledged that “[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a ‘question of probabilities.’ ” 388 U. S., at 298. Where we have been unable to conclude that the use of such a “condemned practice” in past criminal trials presents substantial likelihood that the results of a number of those trials were factually incorrect, we have not accorded retroactive effect to the decision condemning that practice. See e. g., DeStefano, 392 U. S., at 633-634 (quoting Duncan): “ ‘We would not assert, however, that every criminal trial — or any particular trial — held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge as he would be by a jury.’ ”
      Our Brother HarlaN criticizes these decisions, stating that he finds “inherently intractable the purported distinction between those new rules that are designed to improve the factfinding process and those designed principally to further other values.” Post, at 695. Earlier, he suggests that “those new rules cognizable on habeas ought to be defined, not by the ‘truth-determining’ test, but by the Palko [v. Connecticut, 302 U. S. 319, 325 (1937)] test.” Post, at 694. But operating within the confines of a rule that seeks to determine, inter alia, whether a newly proscribed practice has probably produced factually improper results in cases where it was employed is surely to proceed with more definite bearings than are provided by a “test” that seeks to define those procedures which are “implicit in the concept of ordered liberty.” See n. 8, infra.

       Compare MR. Justice Harlan’s treatment of petitioner Elkanich’s case, post, at 699-700, with his resolution of Mackey, post, at 700-701. Cf. his discussion of Gideon and its application to cases on collateral review. Post, at 693-694.

       Let us assume that X and Y are accomplices in a murder and that they are tried separately in the state courts. For any one of several reasons, including reversal and retrial or consensual delay, X’s case proceeds slowly through direct review while Y’s conviction is quickly affirmed. Assume further that after X’s conviction is affirmed by the State’s highest court, this Court holds that a practice employed in both the X and Y trials violates the Constitution. Both X and Y come before this Court at the same time seeking to have the new rule applied to their cases — X on direct review and Y by way of collateral attack. (Or, X and Y could be petitioners tried for wholly different offenses in different States or in different districts in the federal system. X, tried in a crowded jurisdiction and having appellate review in a busy judicial system, would be before this Court on direct review, while Y, whose case arose before less congested courts, would most likely be here on collateral attack.)
      Under Mr. Justice HarlaN’s approach, X automatically receives the benefit of the new rule — because we are a court of law somehow bound to decide all cases here on direct review in accordance with the law as it exists when the case arrives for consideration. Although we remain a court of law, Y may or may not receive the benefit of the new rule, the result depending on whether the new rule is designed to correct a practice that has come, over time, to shock our Brother’s conscience. Under our approach today, the results as to X and Y would be consistent, as they should be.
      As a perceptive jurist has remarked:
      "[W]hen a court is itself changing the law by an overruling decision, its determination of prospectivity or retroactivity should not depend upon the stage in the judicial process that a particular case has reached when the change is made. Too many irrelevant considerations, including the common cold, bear upon the rate of progress of a case through the judicial system.” Schaefer, supra, n. 3, at 645.

       Nor is the problem “greatly ameliorated,” post, at 695, by the approach suggested by Mr. Justice HarlaN. For whenever our Brother HarlaN considers a case on collateral review, he must of necessity determine which of the prisoner’s claims are grounded on “new” rules in deciding what “the law in effect [was] when a conviction became final,” 'post, at 692.

       Our cases have settled the proposition that the Fourth Amendment requires agents of the Government to obtain prior judicial approval of all searches and seizures, see, e. g., Davis v. Mississippi, 394 U. S. 721, 728 (1969); Katz v. United States, 389 U. S. 347, 356-357 (1967); James v. Louisiana, 382 U. S. 36 (1965); Preston v. United States, 376 U. S. 364, 368 (1964); McDonald v. United States, 335 U. S. 451, 455-456 (1948); Agnello v. United States, 269 U. S. 20, 33 (1925), subject only to a few narrow and well-delineated exceptions grounded upon urgent necessity. Terry v. Ohio, 392 U. S. 1, 16-27 (1968); see Katz v. United States, supra,
        at 357 n. 19 and cases cited; cf. Chambers v. Maroney, 399 U. S. 42 (1970). And, in all events, “[t]he scope of [a] search must be 'strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, supra, at 19, quoting Warden v. Hayden, 387 U. S. 294, 310 (1967) (concurring opinion).

       Long before Chimel, of course, we had made clear that Harris and Rabinowitz were not themselves without limit. James v. Louisiana, 382 U. S. 36 (1965); Kremen v. United States, 353 U. S. 346 (1957); see Von Cleef v. New Jersey, 395 U. S. 814 (1969); Stanley v. Georgia, 394 U. S. 557, 569-572 (1969) (Stewart, J., concurring in result).

       Under what circumstances the Fifth Amendment requires that the individual concerned be granted immunity from prosecution for the matters revealed in his statements is a question not pertinent here. See Piccirillo v. New York, 400 U. S. 548, 561-573 (1971) (Brennan, J., dissenting).