author: Chief Justice Rehnquist Justice O’Connor, Justice Blackmun,

text:
    GILMORE v. TAYLOR
    No. 91-1738.
    Argued March 2, 1993
    Decided June 7, 1993

      Mark E. Wilson, Assistant Attorney General of Illinois, argued the cause for petitioner. With him on the briefs were Roland W. Burris, Attorney General, Rosalyn B.

      Kaplan, Solicitor General, and Terence M. Madsen, Marcia L. Friedl, and Steven J. Zick, Assistant Attorneys General.

      Lawrence C. Marshall, by appointment of the Court, 506 U. S. 1018, argued the cause for respondent. With him on the brief were Roy T Englert, Jr., Robert Agostinelli, and Timothy P. O’Neill.

        Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Larry W. Yackle, Steven R. Shapiro, Leslie A Harris, John A Powell, and Harvey Grossman; and for Nicholas deB. Katzenbach et al. by George N. Leighton and George H. Kendall.

   Chief Justice Rehnquist

delivered the opinion of the Court.

Respondent Kevin Taylor was convicted of murder by an Illinois jury and sentenced to 85 years’ imprisonment. After his conviction and sentence became final, he sought federal habeas relief on the ground that the jury instructions given at his trial violated the Fourteenth Amendment’s Due Process Clause. The Court of Appeals for the Seventh Circuit granted relief on the basis of its recent decision in Falconer v. Lane, 905 F. 2d 1129 (1990), which held that the Illinois pattern jury instructions on murder and voluntary manslaughter were unconstitutional because they allowed a jury to return a murder verdict without considering whether the defendant possessed a mental state that would support a voluntary-manslaughter verdict instead. We conclude that the rule announced in Falconer was not dictated by prior precedent and is therefore “new” within the meaning of Teague v. Lane, 489 U. S. 288 (1989). Accordingly, the Falconer rule may not provide the basis for federal habeas relief in respondent’s case.

Early one morning in September 1985, respondent became involved in a dispute with his former wife and her live-in boyfriend, Scott Siniscalehi, over custodial arrangements for his daughter. A fracas ensued between the three adults, during which respondent stabbed Siniscalehi seven times with a hunting knife. Siniscalehi died from these wounds, and respondent was arrested at his home later that morning.

Respondent was charged with murder. 111. Rev. Stat., ch. 38, ¶ 9-1 (1985). At trial, he took the stand and admitted killing Siniscalehi, but claimed he was acting under a sudden and intense passion provoked by Siniscalehi, and was therefore only guilty of the lesser included offense of voluntary manslaughter. ¶ 9-2. At the close of all the evidence, the trial judge found that there was sufficient evidence supporting respondent’s “heat of passion” defense to require an instruction on voluntary manslaughter, and instructed the jury as follows:

“To sustain the charge of murder, the State must prove the following propositions:
“First: That the Defendant performed the acts which caused the death of Scott Siniscalehi; and
“Second: That when the Defendant did so he intended to kill or do great bodily harm to Scott Siniscalehi; or he knew that his act would cause death or great bodily harm to Scott Siniscalehi; or he knew that his acts created a strong probability of death or great bodily harm to Scott Siniscalehi; or he was committing the offense of home invasion.
“If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the Defendant guilty.
“If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the Defendant not guilty.
“To sustain the charge of voluntary manslaughter, the evidence must prove the following propositions:
“First: That the Defendant performed the acts which caused the death of Scott Siniscalchi; and
“Second: That when the Defendant did so he intended to kill or do great bodily harm to Scott Siniscalchi; or he knew that such acts would [sic] death or great bodily harm to Scott Siniscalchi; or he knew that such acts created a strong probability of death or great bodily harm to Scott Siniscalchi;
“Third: That when the Defendant did so he acted under a sudden and intense passion, resulting from serious provocation by another.
“If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the Defendant guilty.
“If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the Defendant not guilty.
“As stated previously, the Defendant is charged with committing the offense of murder and voluntary manslaughter. If you find the Defendant guilty, you must find him guilty of either offense; but not both. On the other hand, if you find the Defendant not guilty, you can find him not guilty on either or both offenses.” App. 128-131.

These instructions were modeled after, and virtually identical to, the Illinois pattern jury instructions on murder and voluntary manslaughter, which were formally adopted in 1981, Illinois Pattern Jury Instructions — Criminal §§7.02 and 7.04 (2d ed. 1981), but on which Illinois judges had relied since 1961, when the State enacted the definitions of murder and voluntary manslaughter that governed until 1987. See Haddad, Allocation of Burdens in Murder-Voluntary Manslaughter Cases: An Affirmative Defense Approach, 59 Chi.Kent L. Rev. 23 (1982). Respondent did not object to the instructions. The jury returned a guilty verdict on the murder charge, and respondent was sentenced to 35 years’ imprisonment.

Respondent unsuccessfully challenged his conviction on appeal, then filed a petition for state postconviction relief. The Circuit Court dismissed the petition. But while respondent’s appeal was pending, the Illinois Supreme Court invalidated the Illinois pattern jury instructions on murder and voluntary manslaughter. People v. Reddick, 123 Ill. 2d 184, 526 N. E. 2d 141 (1988). According to the Supreme Court, under Illinois law, the instructions should have placed on the prosecution the burden of disproving beyond a reasonable doubt that the defendant possessed a mitigating mental state. Id., at 197, 526 N. E. 2d, at 146. Respondent sought to take advantage of Reddick on appeal, but the Court of Appeals affirmed the denial of postconviction relief on the ground that Reddick did not involve constitutional error, the only type of error that would support the grant of relief. People v. Taylor, 181 Ill. App. 3d 538, 536 N. E. 2d 1312 (1989). The Illinois Supreme Court denied respondent’s request for leave to appeal.

Having exhausted his state remedies, respondent sought federal habeas relief, attacking his conviction on the ground that the jury instructions given at his trial violated due process. Eleven days later, the Court of Appeals for the Seventh Circuit held as much in Falconer v. Lane, 905 F. 2d 1129 (1990). The defect identified by the Falconer court was quite different from that identified in Reddick: Because the murder instructions preceded the voluntary-manslaughter instructions, but did not expressly direct the jury that it could not return a murder conviction if it found that the defendant possessed a mitigating mental state, it was possible for a jury to find that a defendant was guilty of murder without even considering whether he was entitled to a voluntary-manslaughter conviction instead. 905 F. 2d, at 1136. “Explicit misdirection on this scale,” the Seventh Circuit held, “violates the constitutional guarantee of due process.” Id., at 1137. In reaching this conclusion, the Court of Appeals placed principal reliance on Cupp v. Naughten, 414 U.S. 141 (1973).

At respondent’s federal habeas proceeding, the State conceded that the jury instructions given at respondent’s trial were unconstitutional under Falconer, but argued that the rule announced in Falconer.was “new” within the meaning of Teague v. Lane, 489 U. S. 288 (1989), and therefore could not form the basis for federal habeas relief. The District Court agreed, but the Court of Appeals reversed. 954 F. 2d 441 (1992). Although the Seventh Circuit now thought Cupp was “too general to have compelled Falconer within the meaning of Teague,” 954 F. 2d, at 452, it concluded that Boyde v. California, 494 U. S. 370 (1990), and Connecticut v. Johnson, 460 U. S. 73 (1983) (plurality opinion), were “specific enough to have compelled” the result reached in Falconer, 954 F. 2d, at 453. Accordingly, the Court of Appeals held that the rule announced in Falconer was not “new” within the meaning of Teague, and that Teague therefore did not bar the retroactive application of Falconer in respondent’s case. Id., at 453. We granted certiorari, 506 U. S. 814 (1992), and now reverse.

The retroactivity of Falconer under Teague and its progeny is the only question before us in this case. Subject to two narrow exceptions, a case that is decided after a defendant’s conviction and sentence become final may not provide the basis for federal habeas relief if it announces a “new rule.” Graham v. Collins, 506 U. S. 461, 466-467 (1993); Stringer v. Black, 503 U. S. 222, 227 (1992); Teague, supra, at 305-311 (plurality opinion). Though we have offered various formulations of what constitutes a new rule, put “meaningfully for the majority of cases, a decision announces a new rule ‘“if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” ’ ” Butler v. McKellar, 494 U. S. 407, 412 (1990) (quoting Penry v. Lynaugh, 492 U. S. 302, 314 (1989), in turn quoting Teague, supra, at 301 (emphasis in original)); see also Graham, supra, at 467; Sawyer v. Smith, 497 U. S. 227, 234 (1990); Saffle v. Parks, 494 U. S. 484, 488 (1990); Penry v. Lynaugh, 492 U. S. 302, 329 (1989). “The ‘new rule’ principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts,” 494 U. S., at 414, and thus effectuates the States’ interest in the finality of criminal convictions and fosters comity between federal and state courts.

We begin our analysis with the actual flaw found by the Falconer court in the challenged jury instructions. It was not that they somehow lessened the State’s burden of proof below that constitutionally required by eases such as In re Winship, 397 U. S. 358 (1970); nor was it that the instructions affirmatively misstated applicable state law. (The Court of Appeals in no way relied upon People v. Reddick, supra, which the Illinois Supreme Court had subsequently held was subject to prospective application only. People v. Flowers, 138 Ill. 2d 218, 561 N. E. 2d 674 (1990).) Rather, the flaw identified by the Falconer court was that when the jury instructions were read consecutively, with the elements of murder set forth before the elements of voluntary manslaughter, a juror could conclude that the defendant was guilty of murder after applying the elements of that offense without continuing on to decide whether the elements of voluntary manslaughter were also made out, so as to justify returning a verdict on that lesser offense instead.

In concluding that this defect violated due process, the Falconer court relied on Cupp v. Naughten, supra. That ease involved a due process challenge to a jury instruction that witnesses are presumed to tell the truth, which the defendant claimed had the effect of shifting the burden of proof on his innocence. Because the jury had been explicitly instructed on the defendant’s presumption of innocence as well as the State’s burden of proving guilt beyond a reasonable doubt, we held that the instruction did not amount to a constitutional violation. See 414 U. S., at 149.

We think Cupp is an unlikely progenitor of the rule announced in Falconer, a view now shared by the Seventh Circuit. The cases following Cupp in the Winship line establish that States must prove guilt beyond a reasonable doubt with respect to every element of the offense charged, but that they may place on defendants the burden of proving affirmative defenses. See Martin v. Ohio, 480 U. S. 228 (1987); Patterson v. New York, 432 U. S. 197 (1977). The State argues that these later cases support the proposition that any error committed in instructing a jury with respect to an affirmative defense, which does not lessen the State’s Winship burden in proving every element of the offense charged beyond a reasonable doubt, is one wholly of state law. Cf. Engle v. Isaac, 456 U. S. 107, 119-121, and n. 21 (1982) (challenge to correctness of self-defense instructions under state law provides no basis for federal habeas relief). We need not address this contention other than to say that cases like Patterson and Martin make it crystal clear that Cupp does not compel the result reached in Falconer.

In its decision in the present case, the Court of Appeals offered two additional cases which it believed did dictate the result in Falconer. The first is Boyde v. California, supra. There, we clarified the standard for reviewing on federal habeas a claim that ambiguous jury instructions impermissibly restricted the jury’s consideration of “constitutionally relevant evidence.” 494 U. S., at 380. Although Boyde was decided after respondent’s conviction and sentence became final, it did not work a change in the law favoring criminal defendants, and therefore may be considered in our Teague analysis. See Lockhart v. Fretwell, 506 U. S. 364, 373 (1993). Nevertheless, Boyde was a capital case, with respect to which we have held that the Eighth Amendment requires a greater degree of accuracy and factfinding than would be true in a noncapital case. See Herrera v. Collins, 506 U. S. 390, 399 (1993); Beck v. Alabama, 447 U. S. 625 (1980). Outside of the capital context, we have never said that the possibility of a jury misapplying state law gives rise to federal constitutional error. To the contrary, we have held that instructions that contain errors of state law may not form the basis for federal habeas relief. Estelle v. McGuire, 502 U. S. 62 (1991).

Moreover, under the standard fashioned in Boyde, the relevant inquiry is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” 494 U. S., at 380. In Boyde, the petitioner argued that the trial court’s instruction on California’s “catchall” factor for determining whether a defendant should be sentenced to death restricted the jury’s consideration of certain mitigating evidence. Since “[t]he Eighth Amendment requires that the jury be able to consider and give effect to all relevant mitigating evidence,” id., at 377-378, this evidence was plainly constitutionally relevant. In this case, by contrast, petitioner argues that the challenged instructions prevented the jury from considering evidence of his affirmative defense. But in a noncapital ease such as this there is no counterpart to the Eighth Amendment’s doctrine of “constitutionally relevant evidence” in capital cases.

The Court of Appeals also relied on the plurality opinion in Connecticut v. Johnson, 460 U. S. 73 (1983). That case dealt with the question whether an instruction that violates due process under Sandstrom v. Montana, 442 U. S. 510 (1979), may be subject to harmless-error analysis. But in the course of deciding this question, the plurality discussed the nature of Sandstrom error, and it is this discussion on which the Court of Appeals relied below. Sandstrom is a lineal descendant of Winship; it simply held that an instruction which creates a presumption of fact violates due process if it relieves the State of its burden of proving all of the elements of the offense charged beyond a reasonable doubt. The Court of Appeals read the Johnson plurality’s discussion of Sandstrom as establishing the “due process principle” that instructions are unconstitutional if they lead “the jury to ignore exculpatory evidence in finding the defendant guilty of murder beyond a reasonable doubt.” 954 F. 2d, at 453 (emphasis added). But neither Sandstrom nor Johnson can be stretched that far beyond Winship. The most that can be said of the instructions given at respondent’s trial is that they created a risk that the jury would fail to consider evidence that related to an affirmative defense, with respect to which Winship’s due process guarantee does not apply. See Martin v. Ohio, supra; Patterson v. New York, supra.

Respondent offers a separate (but related) rationale he claims is supported by our cases and also compels the Seventh Circuit’s ruling in Falconer: viz., the jury instructions given at his trial interfered with his fundamental right to present a defense. We have previously stated that “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane v. Kentucky, 476 U. S. 683, 690 (1986) (quoting California v. Trombetta, 467 U. S. 479, 485 (1984)). But the cases in which we have invoked this principle dealt with the exclusion of evidence, see, e. g., Crane v. Kentucky, supra; Chambers v. Mississippi, 410 U. S. 284 (1973), or the testimony of defense witnesses, see, e. g., Webb v. Texas, 409 U. S. 95 (1972) (per curiam); Washington v. Texas, 388 U. S. 14 (1967). None of them involved restrictions imposed on a defendant’s ability to present an affirmative defense. Drawing on these cases, respondent argues that the right to present a defense includes the right to have the jury consider it, and that confusing instructions on state law which prevent a jury from considering an affirmative defense therefore violate due process. But such an expansive reading of our eases would make a nullity of the rule reaffirmed in Estelle v. McGuire, supra, that instructional errors of state law generally may not form the basis for federal habeas relief. And the level of generality at which respondent invokes this line of cases is far too great to provide any meaningful guidance for purposes of our Teague inquiry. See Saffle v. Parks, 494 U. S., at 491.

For the foregoing reasons, we disagree with the Seventh Circuit and respondent that our precedent foreordained the result in Falconer, and therefore hold that the rule announced in Falconer is “new” within the meaning of Teague. All that remains to be decided is whether this rule falls into one of Teague’s exceptions, under which a new rule may be given retroactive effect on collateral review. The first exception applies to those rules that “plac[e] certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Teague v. Lane, 489 U. S., at 307 (plurality opinion) (internal quotation marks omitted). This exception is clearly inapplicable here, since the rule announced in Falconer does not “decriminalize” any class of conduct. See Saffle v. Parks, supra, at 495. Teague’s second exception permits the retroactive application of “ ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding.” 494 U. S., at 495 (quoting Teague, supra, at 311). This exception is also inapplicable. Although the Falconer court expressed concern that the jury might have been confused by the instructions in question, we cannot say that its holding falls into that “small core of rules requiring ‘observance of those procedures that... are implicit in the concept of ordered liberty.’” Graham v. Collins, 506 U. S., at 478 (quoting Teague, supra, at 311 (internal quotation marks omitted)).

Because the rule announced in Falconer is “new” within the meaning of Teague and does not fall into one of Teague’s exceptions, it cannot provide the basis for federal habeas relief in respondent’s case. The judgment of the Court of Appeals is therefore

Reversed.

Justice O’Connor,

with whom

Justice White joins, concurring in the judgment.

Kevin Taylor admitted that he had killed Scott Sinisealchi. He contended, however, that he had “act[ed] under a sudden and intense passion resulting from serious provocation by [Sinisealchi].” 111. Rev. Stat., eh. 38, ¶ 9-2 (1985). If Taylor’s account is to be believed, then, under the law of the State of Illinois, he is not guilty of murder but rather of manslaughter. Ibid. At trial, Taylor took the stand and admitted to the two elements of murder. He asked only that the jury consider his state of mind when he acted and convict him of voluntary manslaughter, acquitting him of murder. Illinois law is clear that this put the jury to a choice: Taylor could be convicted only of manslaughter or murder — not of both. Indeed, because Taylor produced sufficient evidence to raise the defense of sudden passion, Illinois law required the State to negate Taylor’s defense beyond a reasonable doubt. People v. Reddick, 123 Ill. 2d 184, 197, 526 N. E. 2d 141, 146 (1988). As a result, the jury should not have been permitted to convict Taylor of murder if there was so much as a reasonable possibility that Taylor’s manslaughter defense had merit. Ibid.

In Falconer v. Lane, 905 F. 2d 1129 (1990), the Court of Appeals for the Seventh Circuit held that instructions similar to those given at Taylor’s trial did not comport with Illinois law and were ambiguous at best. In Taylor’s case, according to the Court of Appeals, this ambiguity resulted in a reasonable likelihood that the jury misunderstood those instructions, and that once it found Taylor guilty of the two elements of murder (to which Taylor had admitted), the jury simply stopped deliberating without considering the possibility that Taylor was guilty only of manslaughter. 954 F. 2d 441, 442 (1992). In other words, the court concluded that there was a reasonable likelihood that the jury never considered Taylor’s defense of sudden and provoked passion, even though the trial court thought there was sufficient evidence of the defense for the issue to reach the jury and even though the State bore the burden of proving its absence beyond a reasonable doubt. This, the court held, violated due process. Id., at 450.

The Court of Appeals, however, understood that our decision in Teague v. Lane, 489 U. S. 288 (1989) (plurality opinion), bars the announcement of new rules on habeas corpus. 954 F. 2d, at 451. Accordingly, it examined our precedents to determine whether its decision was “dictated” by our prior decisions. In so doing, the court construed our cases in Boyde v. California, 494 U. S. 370 (1990), and Connecticut v. Johnson, 460 U. S. 73 (1983) (plurality opinion), as compelling its conclusion that the instructions used in Taylor’s case violated due process. 954 F. 2d, at 452-453. It therefore held that its rule was not “new” and ordered that a writ of habeas corpus issue unless Taylor was retried within 120 days. Id., at 453.

I agree with the majority today that the rule the Court of Appeals announced was at least susceptible to debate among reasonable jurists. See Butler v. McKellar, 494 U. S. 407, 415 (1990). For that reason, I agree that under Teague a federal court cannot issue a writ of habeas corpus based on the ambiguous instructions in dispute here. In so deciding, however, I would not reach out to decide the merits of the rule, nor would I construe our eases so narrowly as the Court does. For that reason, I write separately.

Prior to Boyde, we phrased the standard for reviewing jury instructions in a variety of ways, not all of which were consistent. Compare Mills v. Maryland, 486 U. S. 367, 384 (1988) (constitutional error occurs when there is a “substantial probability” the instructions precluded consideration of constitutionally relevant evidence), with Sandstrom v. Mon tana, 442 U. S. 510, 523 (1979) (constitutional error occurs when jurors “could reasonably have concluded” that the instructions created a presumption of guilt on an element of the crime). In Boyde, we clarified that when the claim is that a single jury “instruction is ambiguous and therefore subject to an erroneous interpretation,” the proper inquiry is “whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” 494 U. S., at 380. As the Court notes, we chose the more restrictive standard in that case, and, as a result, Boyde itself did not state a new rule. The Court, however, finds Boyde inapplicable because it was a capital case. Ante, at 342.

It is true that we clarified the standard for reviewing jury instructions in a capital case, but Boyde did not purport to limit application of that standard to capital eases, nor have we so limited it. In Estelle v. McGuire, 502 U. S. 62 (1991), for example, the Court reviewed an ambiguous state-law instruction in a noncapital case. Although I disagreed with the Court’s conclusion regarding the effect of that ambiguous instruction, see id., at 76-80 (O’Connor, J., concurring in part and dissenting in part), I agreed with the standard it used in reaching its conclusion: “ ‘whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way* that violates the Constitution.” Id., at 72 (quoting Boyde v. California, supra). It is clear that the “reasonable likelihood” standard of Boyde applies to noncapital cases.

Although the Court’s opinion today might be read as implying that erroneous jury instructions may never give rise to constitutional error outside of capital cases, ante, at 342, such an implication would misconstrue our precedent. When the Court states that “instructions that contain errors of state law may not form the basis for federal habeas relief,” ibid, (citing Estelle v. McGuire, supra), it must mean that a mere error of state law, one that does not rise to the level of a constitutional violation, may not be corrected on federal habeas. Some erroneous state-law instructions, however, may violate due process and hence form the basis for relief, even in a noncapital case. In McGuire, a majority of the Court found that the particular erroneous instruction at issue did not give rise to a constitutional violation, but the very fact that the Court scrutinized the instruction belies any assertion that erroneous instructions can violate due process only in capital cases.

We have not held that the Eighth Amendment’s requirement that the jury be allowed to consider and give effect to all relevant mitigating evidence in capital cases, see, e. g., Boyde, supra, applies to noncapital cases. Nevertheless, we have held that other constitutional amendments create “constitutionally relevant evidence” that the jury must be able to consider. See, e. g., Rock v. Arkansas, 483 U. S. 44, 51 (1987) (“The right to testify on one’s own behalf at a criminal trial has sources in several provisions of the Constitution”); Delaware v. Van Arsdall, 475 U. S. 673, 678-679 (1986) (Rehnquist, J.) (“[T]he Confrontation Clause guarantees an opportunity for effective cross-examination” (internal quotation marks omitted)). The category of “constitutionally relevant evidence” is not limited to capital cases.

In this case, the question is not whether application of the “reasonable likelihood” standard of Boyde is a new rule. It is not. See ante, at 341-342; supra, at 348. Nor is the question whether jury instructions may be so erroneous under state law as to rise to the level of a constitutional violation. It is clear to me that they may. See, e. g., McGuire, 502 U. S., at 72; id., at 78 (O’Connor, J., concurring in part and dissenting in part). The question is whether reasonable jurists could disagree over whether the particular erroneous instruction at issue here — which we assume created a reasonable likelihood that the jury did not consider Taylor’s affirmative defense once it determined the two elements of murder were established — violated the Constitution.

Our cases do not provide a clear answer to that question. Due process, of course, requires that the State prove every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U. S. 358 (1970). This straightforward proposition has spawned a number of corollary rules, among them the rule that the State may not “us[e] evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U. S. 307, 313 (1985). Accord, Rose v. Clark, 478 U. S. 570, 580 (1986); Connecticut v. Johnson, 460 U. S., at 84-85 (plurality opinion); Sandstrom, supra, at 521-523. The Court of Appeals extended these cases — which themselves are the “logical extension” of Winship, see Rose, supra, at 580 — one step further. It read them as standing for the proposition that any instruction that leads “the jury to ignore exculpatory evidence in finding the defendant guilty of murder beyond a reasonable doubt” violates due process; it disregarded as meaningless the distinction between elements of the offense and affirmative defenses. 954 F. 2d, at 453.

Our opinions in Martin v. Ohio, 480 U. S. 228 (1987), and Patterson v. New York, 432 U. S. 197 (1977), however, make clear that at least in some circumstances the distinction is not meaningless. In Patterson, we held that the Due Process Clause did not require the State to prove the absence of the affirmative defense of extreme emotional disturbance beyond a reasonable doubt; the State instead could place the burden of proving the defense on the defendant. Id., at 210. We reaffirmed this holding in Martin, supra, and rejected petitioner’s claim that requiring her to prove self-defense by a preponderance of the evidence shifted to petitioner the burden of disproving the elements of the crime. Id., at 233-234. (Although Martin was decided after Taylor’s conviction became final, its holding, like Boyde’s, was not a new rule.)

This ease differs from Martin and Patterson in at least two ways. First, Taylor had only the burden of production and not the burden of persuasion; once he produced sufficient evidence for the issue to go to the jury, the State was required to prove the absence of his defense beyond a reasonable doubt. See Reddick, 123 Ill. 2d, at 197, 526 N. E. 2d, at 146. Second, Taylor’s contention does not concern the allocation of burdens of proof; he argues that the jury did not consider his defense at all. Nevertheless, I cannot say that our prior cases compel the rule articulated by the Court of Appeals. At the very least, Martin and Patterson confirm that the rule the Court of Appeals promulgated here goes beyond what we hitherto have said the Constitution requires.

The purpose of Teague is to promote the finality of state-court judgments. When a state court makes a “reasonable, good-faith interpretatio[n]” of our precedents as they exist at the time of decision, that decision should not be overturned on federal habeas review. Butler, 494 U. S., at 413-414. Whatever the merits of the Court of Appeals’ constitutional holding, an issue that is not before us, the Illinois courts were not unreasonable in concluding that the error in Taylor’s instructions was not constitutional error. The State is not required to allow the defense of sudden and provoked passion at all, and the State is free to allow it while requiring the defendant to prove it. Martin, supra; Patterson, supra. It is not a begrudging or unreasonable application of these principles to hold that jury instructions that create a reasonable likelihood the jury will not consider the defense do not violate the Constitution.

Because our cases do not resolve conclusively the question whether it violates due process to give an instruction that is reasonably likely to prevent the jury from considering an affirmative defense, or a hybrid defense such as the State of Illinois permits, resolution of the issue on habeas would require us to promulgate a new rule. Like the Court, I believe that this rule does not fall within either of Teague’s exceptions to nonretroactive application of new rules on habeas. The rule does not place any conduct, much less “ ‘primary, private individual conduct[,] beyond the power of the criminal law-making authority to proscribe. Teague, 489 U. S., at 311 (quoting Mackey v. United States, 401 U. S. 667, 675 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)). Nor does the rule embody a “procedure] without which the likelihood of an accurate conviction is seriously diminished. 489 U. S., at 313. As noted above, the Constitution does not require the State to provide an affirmative defense to murder; a rule that, once such a defense is provided, the instructions must not prevent the jury from considering it is “a far cry from the kind of absolute prerequisite to fundamental fairness that is implicit in the concept of ordered liberty. Id., at 314 (internal quotation marks omitted).

The rule the Court of Appeals promulgated is not compelled by precedent, nor does it fall within one of the two Teague exceptions. I therefore agree with the Court that the Court of Appeals erred in applying that rule in this ease. I do not join the Court’s opinion, however, because it could be read (wrongly, in my view) as suggesting that the Court of Appeals’ decision in this case applied not only a new rule, but also an incorrect one. I would reserve that question until we address it on direct review.

Justice Blackmun,

with whom

Justice Stevens joins, dissenting.

The Court today holds that it cannot decide whether Kevin Taylor has suffered a denial of due process, because Teague v. Lane, 489 U. S. 288 (1989), and its progeny preclude the announcement or application of a new rule on federal habeas corpus. The Court further concludes, as it must in order to avoid reaching the merits, that neither exception to Teague’s proscription of a new rule applies in this case. See ante, at 345. The second Teague exception permits the retroactive application of “ ‘watershed rules of criminal procedure’ implicating the fundamental fairness and accuracy of the criminal proceeding,” Saffle v. Parks, 494 U. S. 484, 495 (1990) (quoting Teague, 489 U. S., at 311). Unlike the Court, I am fully persuaded that this exception does apply in this case. Therefore, even assuming, argmndo, that the majority is correct in concluding that Taylor asks this Court to announce a “new rule,” Teague does not preclude the retroactive application of that rule.

Taylor argues that the substantive criminal law existing at the time of a defendant’s alleged offense must be the law that governs the trial of that offense. I believe that he is correct and that the principle he asserts is a fundamental one. I therefore would affirm the judgment of the Court of Appeals.

I

At the time that Taylor was tried for the “murder” of Scott Siniscalchi, Illinois law defined murder and voluntary manslaughter as two distinct crimes, albeit with two elements in common. To be guilty of either crime, a defendant had to have (1) caused the death of the victim, and (2) intended to kill or cause great bodily harm to the victim. The distinction between voluntary manslaughter and murder at the time of Taylor’s offense was that a defendant who acted either “under a sudden and intense passion resulting from serious provocation,” or under an unreasonable (but honest) belief that deadly force was justified to prevent the defendant’s own imminent death or great bodily harm, was guilty of voluntary manslaughter but not guilty of murder. 111. Rev. Stat., ch. 38, ¶ 9-2 (1985). In other words, under Illinois law at the time of Taylor’s offense, a person who killed under specific circumstances of provocation was innocent of murder.

At the close of Taylor’s trial, the presiding judge found that sufficient evidence in support of voluntary manslaughter had been presented to require a jury instruction under Illinois law. The judge therefore determined that he would “let the Jury decide . . . whether that provocation existed here or did not exist here.” App. 96. No one has challenged this finding on appeal. Yet the presiding judge did not explain to the jury that provocation was an affirmative defense to murder. Instead, after telling the jury about the two elements of murder (intent and causation of death), the judge stated: “If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the Defendant guilty.” Id., at 129. The judge went on to instruct the jury that a person is guilty of voluntary manslaughter when he has killed an individual while possessing the requisite state of mind, and at “the time of the killing he acts under a sudden and intense passion resulting from serious proyoeatin [sic] by the deceased. Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.” Id., at 130. Finally, the judge gave the following instruction in an apparent attempt to explain the relation between the murder and the voluntary manslaughter charges:

“As stated previously, the Defendant is charged with committing the offense of murder and voluntary manslaughter. If you find the Defendant guilty, you must find him guilty of either offense; but not both. On the other hand, if you find the Defendant not guilty, you can find him not guilty on either or both offenses.” Id., at 131.

Even the prosecutor thought these instructions may have failed to inform the jury of the relation between the offenses of murder and manslaughter under Illinois law. Id., at 98-99. He accordingly suggested that the judge include an instruction explaining that Taylor’s provocation claim could serve to constitute a complete defense to the murder charge. Id., at 99. The prosecutor indicated that he had raised this possibility because “I just don’t want to knowingly create error here.” Id., at 101. The trial judge declined the suggestion and responded to the prosecutor’s concern: “We’re not doing it knowingly; we’re doing it out of ignorance.” Ibid.

After deliberations, the jury announced that it had found Taylor guilty of murder. It then returned a signed verdict form to that effect. Id., at 131, 137. The jury never mentioned the manslaughter charge and returned unsigned both the guilty and not-guilty forms for that offense. Id., at 139-140.

II

A jury instruction is unconstitutional if there is a “reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.” Boyde v. California, 494 U. S. 370, 380 (1990). I explain in greater detail below why testimony that demonstrates that a defendant killed under provocation is constitutionally relevant evidence in a murder trial in Illinois. A threshold question, however, is whether the jury’s instructions in this case created a reasonable likelihood that the jury would not consider such provocation evidence.

No one appears to contest the proposition that a jury of lay people would not understand from the instructions that it should find Taylor not guilty of murder if it concluded that he acted under provocation. The judge explained to the jury that it could convict Taylor of either murder or manslaughter (or neither), but not both. App. 131. In instructing that Taylor could not be found guilty of both offenses, however, the judge failed to explain that a defendant, in fact, could satisfy the elements of both offenses. He failed to inform the jury that indeed whenever the elements of voluntary manslaughter (intent, causation, and provocation) are satisfied, the elements of murder (intent and causation) are satisfied as well. And, of course, he therefore did not clarify that the jury must choose manslaughter over murder in the event that the elements of both offenses are made out.

The relation between murder and voluntary manslaughter in Illinois at the time of Taylor’s offense was a complicated one. Provocation was both a component of manslaughter and a defense to murder. The easy way to convey this idea is to explain that to find a defendant guilty of murder, the jury must find (1) that there was intent, (2) that there was causation, and (3) that there was no provocation. The prosecutor explained to the judge that he might have had to provide such an instruction under Illinois law. See id., at 99.

What the judge actually did, however, was simply to list the elements of each offense, starting with murder, tell the jury that it could convict Taylor of only one but not of both, and send the jury to deliberate. In the deliberation room, the jurors had four sheets of paper, each of which provided spaces for the jurors’ signatures. The sheets indicated, respectively, verdicts of “Not Guilty of the offense of murder,” “Guilty of the offense of murder,” “Not Guilty of the offense of Voluntary Manslaughter,” and “Guilty of the offense of Voluntary Manslaughter,” in that order. See id., at 135,137, 139-140. The jurors signed neither the guilty nor the not-guilty verdict forms regarding voluntary manslaughter. This is almost certainly because the instruction for murder preceded the instruction for manslaughter, the verdict forms for murder preceded the verdict forms for manslaughter, and the jurors understood that once they had found Taylor guilty of murder, they could not, consistent with the judge’s instructions, find him guilty of manslaughter. There was therefore no need, under the instructions they received, to consider manslaughter and provocation. Taylor’s jury never knew that provocation made out a complete defense to murder.

The State itself concedes that the instructions “violated state law by permitting the jury to find Taylor guilty of murder without considering his affirmative defense.” Brief for Petitioner 12. According to a unanimous Illinois Supreme Court evaluating the same instructions given in another case: “These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter.” . People v. Reddick, 123 Ill. 2d 184, 194, 526 N. E. 2d 141, 145 (1988). The Seventh Circuit concluded: “No matter how clearly either the State or the defense proved the existence of the mitigating 'manslaughter defenses,’ the jury could nevertheless return a murder verdict in line with the murder instruction as given.” Falconer v. Lane, 905 F. 2d 1129, 1136 (1990). Because of the jury’s ignorance, respondent Taylor suffered a fundamental deprivation of his constitutional rights that seriously diminished the likelihood of an accurate conviction.

Ill

To understand why an instruction that prevents the jury from considering provocation evidence violates the Constitution, it is necessary to examine the operation of the criminal law in regulating the conduct of citizens in a free society. As explained below, the instructions in this case in effect created an ex post facto law, diminished the likelihood of an accurate conviction, and deprived Taylor of his right to a fair trial.

A

1

This Court consistently has held that the Constitution requires a State to provide notice to its citizens of what conduct will subject them to criminal penalties and of what those penalties are. See Miller v. Florida, 482 U. S. 423, 429 (1987) (explaining the constitutional prohibition against ex post facto laws, U. S. Const., Art. I, § 9, cl. 3, § 10, cl. 1); Beazell v. Ohio, 269 U. S. 167, 169 (1925) (same); Buckley v. Valeo, 424 U. S. 1, 77 (1976) (explaining the due process requirement that defendants be on notice that their conduct violates the criminal law); Bouie v. City of Columbia, 378 U. S. 347, 351 (1964) (same). People can conform their conduct to the dictates of the criminal law only if they can know what the criminal law has to say about their conduct. Proper warning is a constitutional imperative.

Illinois, through its criminal statutes, warned Taylor that his actions, as conceded at trial, were against the law. Illinois, however, did not warn him that murder and voluntary manslaughter would be treated as interchangeable or equivalent offenses. A defendant convicted of voluntary manslaughter, for example, could be incarcerated for as short a term as 4 years, and could be imprisoned for a maximum term of 15 years. A convicted murderer, in contrast, could be imprisoned for no fewer than 20 years and up to a maximum of 40 years, absent aggravating factors. See 111. Rev. Stat., eh. 38, W-2(e), 1005-8-1(1) and (4) (1985). Under Illinois law at the time of Taylor’s acts, then, the offense that he claims he committed — voluntary manslaughter — was not treated as an offense of nearly the same seriousness as murder. Nevertheless, in the presence of provocation evidence, a murder instruction read without an adequate explanation of the affirmative defense of provocation treats murder and voluntary manslaughter as equivalent offenses. Because provocation evidence was undisputedly present in this case, the failure to explain its operation as a defense to murder amounted to the application to Taylor of an ex post facto murder law.

A useful analogy to the relation between voluntary manslaughter and murder in this case is the relation between self-defense and murder elsewhere in the criminal law. In those States in which self-defense is an affirmative defense to murder, the Constitution does not require that the prosecution disprove self-defense beyond a reasonable doubt. See, e. g., Martin v. Ohio, 480 U. S. 228, 233, 234 (1987). This is because only elements of an offense impose this heavy burden of proof upon the State. Ibid. Despite its status as an affirmative defense, however, self-defense converts what is otherwise murder into justifiable homicide. In other words, the person who kills in self-defense, instead of being guilty of murder, is guilty of no offense at all.

It is easy to see in the context of self-defense how the omission of an affirmative-defense instruction fundamentally denies the defendant due process. Consider the following hypothetical example. As a citizen who is presumed to know the law, see Atkins v. Parker, 472 U. S. 115, 130 (1985), Jane Doe chooses to kill John Smith when he threatens her with substantial bodily harm or death, on the correct theory that she is not committing murder under state law. Doe has a right to rely on the representation of her state legislature that her conduct is legal. If the State then were to try her for murder and not permit her to plead self-defense, the State’s breach of this representation undoubtedly would violate principles of fundamental fairness.

It may be more difficult to sympathize with Kevin Taylor than with the hypothetical Jane Doe, because Doe acted legally and Taylor concededly did not. Not all crimes are equal, however, and if Illinois announces that it will treat murder more seriously than voluntary manslaughter, then Taylor has a right to rely on that announcement when he makes a decision to engage in conduct punishable as a less serious crime. This Court in Mullaney v. Wilbur, 421 U. S. 684, 698 (1975), said:

“Indeed, when viewed in terms of the potential difference in restrictions of personal liberty attendant to each conviction, the distinction ... between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes.”

2

By equating voluntary manslaughter with murder and thereby, in effect, applying an ex post facto murder law to Taylor, the instructions in this case made it highly likely that the jury would return an inaccurate murder conviction.

As explained above, under Illinois law at the time of Taylor’s offense, the presence of provocation reduced murder to voluntary manslaughter. This meant that state law defined the category of murder to exclude voluntary manslaughter and therefore considered a person who was guilty of voluntary manslaughter also to be innocent of murder. Any procedure that increased the likelihood of a murder conviction despite the presence of provocation, thus also decreasing the likelihood of a manslaughter conviction, was therefore a procedure that diminished the likelihood of an accurate conviction by the jury. Because the procedure in this ease prevented the jury from even considering the voluntary manslaughter option, it severely diminished the likelihood of an accurate conviction. See Butler v. McKellar, 494 U. S. 407, 416 (1990). The instructions given in this ease essentially ensured that a person guilty of voluntary manslaughter would be convicted, wrongly, of murder.

Returning to the hypothetical example set forth above, the omission of a self-defense instruction in Jane Doe’s case would distort the definition of murder by causing the jury to include killings in self-defense within that definition. A person who kills in self-defense, however, like a person who kill a under provocation, is not guilty of murder under state law and is therefore not subject to the penalties prescribed for murder. Any conviction that results from the omission of a state-law affirmative defense is therefore, in the case of provocation and in the case of self-defense, an inaccurate conviction.

The State suggests that the right asserted by Taylor is the same as that recognized by this Court in Beck v. Alabama, 447 U. S. 625 (1980). See Brief for Petitioner 17. In Beck, this Court held that a capital defendant is entitled to a lesser included offense instruction if there is evidence in the record to support such an instruction. We left open the question whether Beck applies in the noncapital context. 447 U. S., at 638, n. 14. The State here asserts that because many Courts of Appeals have rejected such a right in the noncapital context, this Court could do the same with respect to Taylor’s claim. See Brief for Petitioner 17, and n. 7. This assertion is without merit.

Like the right Taylor claims, Beck entitles certain defendants to have the jury consider less drastic alternatives to murder. This, however, is where the similarity between the two rights ends. In Beck, the Court’s concern and the reason for the required lesser included offense instruction was that jurors might ignore their reasonable-doubt instruction. Where the defendant is “‘plainly guilty of some offense,’” 447 U. S., at 634, quoting Keeble v. United States, 412 U. S. 205, 213 (1973) (emphasis in original), there is a risk that absent a lesser included offense instruction, the jurors will convict a defendant of capital murder, thereby exposing him to the death penalty, because they do not want to set a guilty person free. In other words, the failure to provide a lesser included offense instruction in the capital context is a problem only to the extent that we fear that jurors will choose to disregard or nullify their reasonable-doubt instruction.

In Taylor’s case, the concern is just the opposite — that the jurors will follow their instructions and thereby convict the defendant of murder because they are ignorant of the fact that provocation reduces the offense to voluntary manslaughter. The failure to include a proper voluntary manslaughter instruction literally distorts the definition of murder by extending it to include voluntary manslaughter and thereby misinforming the jury.

Whether or not we would choose to extend Beck and its presumption of jury nullification to the noncapital defendant has no bearing on the outcome of this case. The right at issue here is one premised upon the notion that jurors faithfully follow what they understand to be their instructions. This premise clearly operates in the capital and noncapital contexts alike. See Richardson v. Marsh, 481 U. S. 200, 211 (1987).

B '

Through his instructions, then, the trial judge in this ease applied an ex post facto murder law to Taylor and thereby misled the jury as to the definition of murder. But the trial judge also violated another of Taylor’s constitutional rights. When the judge prevented Taylor’s jurors from considering his provocation defense, the judge deprived Taylor of his Sixth Amendment and Fourteenth Amendment right to a fair trial.

The Fifth and Fourteenth Amendments to the Constitution guarantee every criminal defendant the right to remain silent. Our precedents have explained that this right precludes the State from calling the defendant as a witness for the prosecution. See, e.g., South Dakota v. Neville, 459 U. S. 553, 563 (1983) (the “classic Fifth Amendment violation” consists of requiring the defendant to testify at his own criminal trial); Malloy v. Hogan, 378 U. S. 1 (1964) (the Fourteenth Amendment Due Process Clause incorporates the Fifth Amendment right to remain silent against the States). The State must provide all evidence necessary to a conviction if the defendant chooses not to testify.

Taylor gave up this important right and took the witness stand to testify about his crime. He evidently did so to avail himself of the provocation defense provided by Illinois law. Taylor admitted under oath that he broke into his former wife’s home and intentionally and fatally stabbed Scott Sinisealchi. App. 80-81. He also testified, however, that he had been provoked by the victim. Id., at 76-81. In its closing argument, the defense therefore asked the jury to find that he had acted under sudden and intense passion when he killed Sinisealchi and therefore was not guilty of murder. Id., at 112-121.

When the judge instructed the jurors, he effectively told them to disregard Taylor’s provocation testimony. Absent that testimony, of course, the most important evidence before the jurors when they deliberated was that Taylor had taken the stand and had sworn to them that his actions violated both elements of the murder statute. As far as the jurors could tell, Taylor had confessed to the crime of murder in open court.

Taylor never indicated a desire to plead guilty to murder. Indeed, he offered testimony that tended to show that he was innocent of murder. Yet the trial judge failed to follow the very statute that had prompted Taylor to testify. By so doing, the judge effectively transformed exculpatory testimony into a plea of guilty to murder. When a defendant intentionally pleads guilty to an offense, he has a constitutional right to be informed about the consequences of his plea. See Mabry v. Johnson, 467 U. S. 504, 509 (1984); Marshall v. Lonberger, 459 U. S. 422, 436 (1983). Taylor, however, was never apprised of the consequences of his testimony. Instead, he was affirmatively misled into unknowingly confessing to a crime of which he claimed he was innocent. The judge’s erroneous instructions thereby vitiated Taylor’s right to a fair trial, guaranteed him by the Sixth and Fourteenth Amendments.

IV

The omission of an adequate affirmative-defense instruction constitutes a profound violation of a defendant’s constitutional rights. It creates an ex post facto law, misinforms the jury as to the governing legal principles, and denies a defendant his right to a fair trial. “Although the precise contours of [the second Teague] exception may be difficult to discern, we have usually cited Gideon v. Wainwright, 372 U. S. 335 (1963), holding that a defendant has the right to be represented by counsel in all criminal trials for serious offenses, to illustrate the type of rule coming within the exception.” Saffle v. Parks, 494 U. S., at 495. The right to an affirmative-defense instruction that jurors can understand when there is evidence to support an affirmative defense is as significant to the fairness and accuracy of a criminal proceeding as is the right to counsel. It is indeed critical in a ease like this one, where the defendant takes the stand and concedes the elements of murder in order to prove his affirmative defense.

Kevin Taylor has not requested a rule that would unreasonably place stumbling blocks in the path of law enforcement, nor has he asked this Court to announce a rule that is only marginally related to the underlying right to a fair trial. On the contrary, he has asked that he be convicted of voluntary manslaughter if he is guilty of voluntary manslaughter, that he be spared a sentence for murder if he is innocent of murder, and that his judge not effectively instruct the jury to disregard the exculpatory part of his testimony and attend only to that which would ensure a conviction for murder. If he is denied what he asks, he is denied a fair trial.

I respectfully dissent and would affirm the judgment of the Court of Appeals.

      JusTiCE Souter joins all but footnote 3 of this opinion.

       Effective July 1, 1987, the offense of voluntary manslaughter was reclassified as second-degree murder and the burden of proof as to the existence of a mitigating mental state was expressly placed on the defendant. Ill. Rev. Stat., ch. 38, ¶ 9-2 (1987). The Illinois pattern jury instructions were rewritten accordingly. 1 Illinois Pattern Jury Instructions — Criminal §7.02B (3d ed. 1992, Supp. 1993).

       Respondent also relies on Cool v. United States, 409 U. S. 100 (1972) (per curiam). That case involved a due process challenge to an instruction that the jury should disregard defense testimony unless it believed beyond a reasonable doubt that the testimony was true. Relying on In re Winship, 397 U. S. 358 (1970), and Washington v. Texas, 388 U. S. 14 (1967), we held that this instruction required reversal of the defendant’s conviction because it “place[d] an improper burden on the defense and allow[ed] the jury to convict despite its failure to find guilt beyond a reasonable doubt.” 409 U. S., at 102-103. This, in turn, we emphasized, contravened Winship’s command that the State must prove guilt beyond a reasonable doubt. 409 U. S., at 104. Cool is a progeny of Winship, and therefore provides no predicate under Teague for the rule announced in Falconer.

       Strongly fortifying this conclusion is the fact that the instructions deemed unconstitutional in Falconer were modeled after, and virtually identical to, the Illinois pattern jury instructions on murder and voluntary manslaughter, which were formally adopted in 1981 — five years before respondent’s trial — but on which Illinois judges had relied since 1961. As we have stated, the purpose of Teague’s “new rule” principle is to. “validate reasonable, good-faith interpretations of existing precedents made by state courts.” Butler v. McKellar, 494 U. S. 407, 414 (1990). The existence of such an institutionalized state practice over a period of years is strong evidence of the reasonableness of the interpretations given existing precedent by state courts.

         Justice Blackmon in dissent would elevate the instructional defect contained in the Illinois pattern jury instructions on murder and voluntary manslaughter not merely to the level of a federal constitutional violation, but to one that is so fundamental as to come within Teagues, second exception. He reaches this result by combining several different constitutional principles — the prohibition against ex post facto laws, the right to a fair trial, and the right to remain silent — into an unrecognizable constitutional stew.

      The intent element -would also be satisfied if the defendant knew that his acts would cause or create a strong probability of death or great bodily harm, or if the defendant had been attempting or committing a forcible felony at the time. See Ill. Rev. Stat., ch. 38, ¶¶ 9-1(2) and (3) (1985).

       The Court implies, ante, at 342, that the Boyde standard might be confined to capital cases. The Court’s citation of Estelle v. McGuire, 502 U. S. 62 (1991), however, belies that implication, because Estelle v. McGuire reaffirmed the Boyde standard and was itself not a capital case. See also ante, at 348 (O’Connor, J., concurring in judgment).

       Two additional sheets referred to the crime of home invasion, for which Taylor was tried and convicted. This conviction, however, is no longer at issue in this case.

       This distinction between murder and voluntary manslaughter is hardly a recent innovation in the criminal law. “[T]he presence or absence of the heat of passion on sudden provocation — has been, almost from the inception of the common law of homicide, the single most important factor in determining the degree of culpability attaching to an unlawful homicide.” Mullaney v. Wilbur, 421 U. S. 684, 696 (1975).

         The Court’s footnote 4, ante, at 345, added by The Chief Justice after the dissenting opinion circulated, hardly deserves acknowledgment, let alone comment. I had thought that this was a court of justice and that a criminal defendant in this country could expect to receive a genuine analysis of the constitutional issues in his case rather than the dismissive and conclusory rhetoric with which Kevin Taylor is here treated. I adhere to my derided “constitutional stew.”


source: Caselaw Access Project

author: Justice White Justice Scalia, Chief Justice Rehnquist,

license: Public Domain

text:
    MINNESOTA v. DICKERSON
    No. 91-2019.
    Argued March 3, 1993
    Decided June 7, 1993

      Michael 0. Freeman argued the cause for petitioner. With him on the briefs were Hubert H Humphrey III, Attorney General of Minnesota, Patrick C. Diamond, and Beverly J. Wolfe.

      Richard H. Beamon argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Kathleen A. Felton.

      Peter W. Gorman argued the cause for respondent. With him on the brief were William R. Kennedy, David H. Knutson, Warren R. Sagstuen, and Renée J. Bergeron.

        Fred E. Inbau, Wayne W. Schmidt, James P. Manak, and Robert H. Macy filed a brief for Americans for Effective Law Enforcement, Inc., et al. urging reversal.
      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John F. Savarese, Steven R. Shapiro, and Deborah Gilman; and for the National Association of Criminal Defense Lawyers by David M. Eldridge.

   Justice White

delivered the opinion of the Court.

In this ease, we consider whether the Fourth Amendment permits the seizure of contraband detected through a police officer’s sense of touch during a protective patdown search.

I

On the evening of November 9,1989, two Minneapolis police officers were patrolling an area on the city’s north side in a marked squad car. At about 8:15 p.m., one of the officers observed respondent leaving a 12-unit apartment building on Morgan Avenue North. The officer, having previously responded to complaints of drug sales in the building’s hallways and having executed several search warrants on the premises, considered the building to be a notorious “crack house.” According to testimony credited by the trial court, respondent began walking toward the police but, upon spotting the squad ear and making eye contact with one of the officers, abruptly halted and began walking in the opposite direction. His suspicion aroused, this officer watched as respondent turned and entered an alley on the other side of the apartment building. Based upon respondent’s seemingly evasive actions and the fact that he had just left a building known for cocaine traffic, the officers decided to stop respondent and investigate further.

The officers pulled their squad car into the alley and ordered respondent to stop and submit to a patdown search. The search revealed no weapons, but the officer conducting the search did take an interest in a small lump in respondent’s nylon jacket. The officer later testified:

“[A]s I pat-searched the front of his body, I felt a lump, a small lump, in the front pocket. I examined it with my fingers and it slid and it felt to be a lump of crack cocaine in cellophane.” Tr. 9 (Feb. 20,1990).

The officer then reached into respondent’s pocket and retrieved a small plastic bag containing one fifth of one gram of crack cocaine. Respondent was arrested and charged in Hennepin County District Court with possession of a controlled substance.

Before trial, respondent moved to suppress the cocaine. The trial court first concluded that the officers were justified under Terry v. Ohio, 392 U. S. 1 (1968), in stopping respondent to investigate whether he might be engaged in criminal activity. The court further found that the officers were justified in frisking respondent to ensure that he was not carrying a weapon. Finally, analogizing to the “plain-view” doctrine, under which officers may make a warrantless seizure of contraband found in plain view during a lawful search for other items, the trial court ruled that the officers’ seizure of the cocaine did not violate the Fourth Amendment:

“To this Court there is no distinction as to which sensory perception the officer uses to conclude that the material is contraband. An experienced officer may rely upon his sense of smell in DWI stops or in recognizing the smell of burning marijuana in an automobile. The sound of a shotgun being racked would clearly support certain reactions by an officer. The sense of touch, grounded in experience and training, is as reliable as perceptions drawn from other senses. ‘Plain feel/ therefore, is no different than plain view and will equally support the seizure here.” App. to Pet. for Cert. C-5.

His suppression motion having failed, respondent proceeded to trial and was found guilty.

On appeal, the Minnesota Court of Appeals reversed. The court agreed with the trial court that the investigative stop and protective patdown search of respondent were lawful under Terry because the officers had a reasonable belief based on specific and articulable facts that respondent was engaged in criminal behavior and that he might be armed and dangerous. The court concluded, however, that the officers had overstepped the bounds allowed by Terry in seizing the cocaine. In doing so, the Court of Appeals “deeline[d] to adopt the plain feel exception” to the warrant requirement. 469 N. W. 2d 462, 466 (1991).

The Minnesota Supreme Court affirmed. Like the Court of Appeals, the State Supreme Court held that both the stop and the frisk of respondent were valid under Terry, but found the seizure of the cocaine to be unconstitutional. The court expressly refused “to extend the plain view doctrine to the sense of touch” on the grounds that “the sense of touch is inherently less immediate and less reliable than the sense of sight” and that “the sense of touch is far more intrusive into the personal privacy that is at the core of the [Fjourth [AJmendment.” 481 N. W. 2d 840, 845 (1992). The court thus appeared to adopt a categorical rule barring the seizure of any contraband detected by an officer through the sense of touch during a patdown search for weapons. The court further noted that “[e]ven if we recognized a ‘plain feel’ exception, the search in this case would not qualify” because “[t]he pat search of the defendant went far beyond what is permissible under Terry.” Id., at 843, 844, n. 1. As the State Supreme Court read the record, the officer conducting the search ascertained that the lump in respondent’s jacket was contraband only after probing and investigating what he certainly knew was not a weapon. See id., at 844.

We granted certiorari, 506 U. S. 814 (1992), to resolve a conflict among the state and federal courts over whether contraband detected through the sense of touch during a patdown search may be admitted into evidence. We now affirm.

II

A

The Fourth Amendment, made applicable to the States by way of the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643 (1961), guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Time and again, this Court has observed that searches and seizures “ ‘conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions/” Thompson v. Louisiana, 469 U. S. 17, 19-20 (1984) (per curiam) (quoting Katz v. United States, 389 U. S. 347, 357 (1967) (footnotes omitted)); Mincey v. Arizona, 437 U. S. 385, 390 (1978); see also United States v. Place, 462 U. S. 696, 701 (1983). One such exception was recognized in Terry v. Ohio, 392 U. S. 1 (1968), which held that “where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . . ,” the officer may briefly stop the suspicious person and make “reasonable inquiries” aimed at confirming or dispelling his suspicions. Id., at 30; see also Adams v. Williams, 407 U. S. 143, 145-146 (1972).

Terry further held that “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon.” 392 U. S., at 24. “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence . . . .” Adams, supra, at 146. Rather, a protective search — permitted without a warrant and on the basis of reasonable suspicion less than probable cause — must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” Terry, supra, at 26; see also Michigan v. Long, 463 U. S. 1032, 1049, and 1052, n. 16 (1983); Ybarra v. Illinois, 444 U. S. 85, 93-94 (1979). If the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed. Sibron v. New York, 392 U. S. 40, 65-66 (1968).

These principles were settled 25 years ago when, on the same day, the Court announced its decisions in Terry and Sibron. The question presented today is whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. We think the answer is clearly that they may, so long as the officers’ search stays within the bounds marked by Terry.

B

We have already held that police officers, at least under certain circumstances, may seize contraband detected during the lawful execution of a Terry search. In Michigan v. Long, supra, for example, police approached a man who had driven his car into a ditch and who appeared to be under the influence of some intoxicant. As the man moved to reenter the car from the roadside, police spotted a knife on the floorboard. The officers stopped the man, subjected him to a patdown search, and then inspected the interior of the vehicle for other weapons. During the search of the passenger compartment, the police discovered an open pouch containing marijuana and seized it. This Court upheld the validity of the search and seizure under Terry. The Court held first that, in the context of a roadside encounter, where police have reasonable suspicion based on specific and articulable facts to believe that a driver may be armed and dangerous, they may conduct a protective search for weapons not only of the driver’s person but also of the passenger compartment of the automobile. 463 U. S., at 1049. Of course, the protective search of the vehicle, being justified solely by the danger that weapons stored there could be used against the officers or bystanders, must be “limited to those areas in which a weapon may be placed or hidden.” Ibid. The Court then held: “If, while conducting a legitimate Terry search of the interior of the automobile, the officer should, as here, dis-. cover contraband other than weapons, he clearly cannot be required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.” Id., at 1050; accord, Sibron, 392 U. S., at 69-70 (White, J., concurring); id., at 79 (Harlan, J., concurring in result).

The Court in Long justified this latter holding by reference to our cases under the “plain-view” doctrine. See Long, supra, at 1050; see also United States v. Hensley, 469 U. S. 221, 235 (1985) (upholding plain-view seizure in context of Terry stop). Under that doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant. See Horton v. California, 496 U. S. 128, 136-137 (1990); Texas v. Brown, 460 U. S. 730, 739 (1983) (plurality opinion). If, however, the police lack probable cause to believe that an object in plain view is contraband without conducting some further search of the object — i. e., if “its incriminating character [is not] ‘immediately apparent,’” Horton, supra, at 136—the plain-view doctrine cannot justify its seizure. Arizona v. Hicks, 480 U. S. 321 (1987).

We think that this doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search. The rationale of the plain-view doctrine is that if contraband is left in open View and is observed by a police officer from a lawful vantage point, there has been no invasion of a legitimate expectation of privacy and thus no “search” within the meaning of the Fourth Amendment — or at least no search independent of the initial intrusion that gave the officers their vantage point. See Illinois v. Andreas, 463 U. S. 765, 771 (1983); Texas v. Brown, supra, at 740. The warrantless seizure of contraband that presents itself in this manner is deemed justified by the realization that resort to a neutral magistrate under such circumstances would often be impracticable and would do little to promote the objectives of the Fourth Amendment. See Hicks, supra, at 326-327; Coolidge v. New Hampshire, 403 U. S. 443, 467-468, 469-470 (1971) (opinion of Stewart, J.). The same can be said of tactile discoveries of contraband. If a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

The Minnesota Supreme Court rejected an analogy to the plain-view doctrine on two grounds: first, its belief that “the sense of touch is inherently less immediate and less reliable than the sense of sight,” and second, that “the sense of touch is far more intrusive into the personal privacy that is at the core of the [Fjourth [Ajmendment.” 481 N. W. 2d, at 845. We have a somewhat different view. First, Terry itself demonstrates that the sense of touch is capable of revealing the nature of an object with sufficient reliability to support a seizure. The very premise of Terry, after all, is that officers will be able to detect the presence of weapons through the sense of touch and Terry upheld precisely such a seizure. Even if it were true that the sense of touch is generally less reliable than the sense of sight, that only suggests that officers will less often be able to justify seizures of unseen contraband. Regardless of whether the officer detects the contraband by sight or by touch, however, the Fourth Amendment’s requirement that the officer have probable cause to believe that the item is contraband before seizing it ensures against excessively speculative seizures. The court’s second concern — that touch is more intrusive into privacy than is sight — is inapposite in light of the fact that the intrusion the court fears has already been authorized by the lawful search for weapons. The seizure of an item whose identity is already known occasions no further invasion of privacy. See Soldal v. Cook County, 506 U. S. 56, 66 (1992); Horton, supra, at 141; United States v. Jacobsen, 466 U. S. 109, 120 (1984). Accordingly, the suspect’s privacy interests are not advanced by a categorical rule barring the seizure of contraband plainly detected through the sense of touch.

Ill

It remains to apply these principles to the facts of this case. Respondent has not challenged the finding made by the trial court and affirmed by both the Court of Appeals and the State Supreme Court that the police were justified under Terry in stopping him and frisking him for weapons. Thus, the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry at the time he gained probable cause to believe that the lump in respondent’s jacket was contraband. The State District Court did not make precise findings on this point, instead finding simply that the officer, after feeling “a small, hard object wrapped in plastic” in respondent’s pocket, “formed the opinion that the object. . . was crack . . . cocaine.” App. to Pet. for Cert. C-2. The District Court also noted that the officer made “no claim that he suspected this object to be a weapon,” id., at C-5, a finding affirmed on appeal, see 469 N. W. 2d, at 464 (the officer “never thought the lump was a weapon”). The Minnesota Supreme Court, after “a close examination of the record,” held that the officer’s own testimony “belies any notion that he ‘immediately’” recognized the lump as crack cocaine. See 481 N. W. 2d, at 844. Rather, the court concluded, the officer determined that the lump was contraband only after “squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket” — a pocket which the officer already knew contained no weapon. Ibid.

Under the State Supreme Court’s interpretation of the record before it, it is clear that the court was correct in holding that the police officer in this ease overstepped the bounds of the “strictly circumscribed” search for weapons allowed under Terry. See Terry, 392 U. S., at 26. Where, as here, “an officer who is executing a valid search for one item seizes a different item,” this Court rightly “has been sensitive to the danger . . . that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.” Texas v. Brown, 460 U. S., at 748 (Stevens, J., concurring in judgment). Here, the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to “[t]he sole justification of the search [under Terry:]. .. the protection of the police officer and others nearby.” 392 U. S., at 29. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize, see id., at 26, and that we have condemned in subsequent cases. See Michigan v. Long, 463 U. S., at 1049, n. 14; Sibron, 392 U. S., at 65-66.

Once again, the analogy to the plain-view doctrine is apt. In Arizona v. Hicks, 480 U. S. 321 (1987), this Court held invalid the seizure of stolen stereo equipment found by police while executing a valid search for other evidence. Although the police were lawfully on the premises, they obtained probable cause to believe that the stereo equipment was contraband only after moving the equipment to permit officers to read its serial numbers. The subsequent seizure of the equipment could not be justified by the plain-view doctrine, this Court explained, because the incriminating character of the stereo equipment was not immediately apparent; rather, probable cause to believe that the equipment was stolen arose only as a result of a further search — the moving of the equipment — that was not authorized by a search warrant or by any exception to the warrant requirement. The facts of this case are very similar. Although the officer was lawfully in a position to feel the lump in respondent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent’s pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional. Horton, 496 U. S., at 140.

IV

For these reasons, the judgment of the Minnesota Supreme Court is

Affirmed.

Justice Scalia,

concurring.

I take it to be a fundamental principle of constitutional adjudication that the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification. Thus, when the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (emphasis added), it “is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted,” Carroll v. United States, 267 U. S. 132, 149 (1925); see also California v. Acevedo, 500 U. S. 565, 583-584 (1991) (Scalia, J., concurring in judgment). The purpose of the provision, in other words, is to preserve that degree of respect for the privacy of persons and the inviolability of their property that existed when the provision was adopted — even if a later, less virtuous age should become accustomed to considering all sorts of intrusion “reasonable.”

My problem with the present ease is that I am not entirely sure that the physical search — the “frisk” — that produced the evidence at issue here complied with that constitutional standard. The decision of ours that gave approval to such searches, Terry v. Ohio, 392 U. S. 1 (1968), made no serious attempt to determine compliance with traditional standards, but rather, according to the style of this Court at the time, simply adjudged that such a search was “reasonable” by current estimations. Id., at 22-27.

There is good evidence, I think, that the “stop” portion of the Terry “stop-and-frisk” holding accords with the common law — that it had long been considered reasonable to detain suspicious persons for the purpose of demanding that they give an account of themselves. This is suggested, in particular, by the so-called night-walker statutes, and their common-law antecedents. See Statute of Winchester, 13 Edw. I, Stat. 2, ch. 4 (1285); Statute of 5 Edw. Ill, ch. 14 (1331); 2 W. Hawkins, Pleas of the Crown, ch. 13, § 6, p. 129 (8th ed. 1824) (“It is holden that this statute was made in affirmance of the common law, and that every private person may by the common law arrest any suspicious night-walker, and detain him till he give a good account of himself”); 1 E. East, Pleas of the Crown, ch. 5, §70, p. 303 (1803) (“It is said ... that every private person may by the common law arrest any suspicious night-walker, and detain him till he give a good account of himself”); see also M. Dalton, The Country Justice, ch. 104, pp. 352-358 (1727); A. Costello, Our Police Protectors: History of the New York Police 25 (1885) (citing 1681 New York City regulation); 2 Perpetual Laws of Massachusetts 1788-1798, ch. 82, §2, p. 410 (1797 Massachusetts statute).

I am unaware, however, of any precedent for a physical search of a person thus temporarily detained for questioning. Sometimes, of course, the temporary detention of a suspicious character would be elevated to a fall custodial arrest on probable cause — as, for instance, when a suspect was unable to provide a sufficient accounting of himself. At that point, it is clear that the common law would permit not just a protective “frisk,” but a full physical search incident to the arrest. When, however, the detention did not rise to the level of a full-blown arrest (and was not supported by the degree of cause needful for that purpose), there appears to be no clear support at common law for physically searching the suspect. See Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315, 324 (1942) (“At common law, if a watchman came upon a suspiciously acting nightwalker, he might arrest him and then search him for weapons, but he had no right to search before arrest”); Williams, Police Detention and Arrest Privileges — England, 51 J. Crim. L., C. & P. S. 413,418 (1960) (“Where a suspected criminal is also suspected of being offensively armed, can the police search him for arms, by tapping his pockets, before making up their minds whether to arrest him? There is no English authority ...”).

I frankly doubt, moreover, whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity — which is described as follows in a police manual:

“Check the subject’s neck and collar. A check should be made under the subject’s arm. Next a check should be made of the upper back. The lower back should also be checked.
“A cheek should be made of the upper part of the man’s chest and the lower region around the stomach. The belt, a favorite concealment spot, should be checked. The inside thigh and crotch area also should be searched. The legs should be checked for possible weapons. The last items to be cheeked are the shoes and cuffs of the subject.” J. Moynahan, Police Searching Procedures 7 (1963) (citations omitted).

On the other hand, even if a “frisk” prior to arrest would have been considered impermissible in 1791, perhaps it was considered permissible by 1868, when the Fourteenth Amendment (the basis for applying the Fourth Amendment to the States) was adopted. Or perhaps it is only since that time that concealed weapons capable of harming the interrogator quickly and from beyond arm’s reach have become common — which might alter the judgment of what is “reasonable” under the original standard. But technological changes were no more discussed in Terry than was the original state of the law.

If I were of the view that Terry was (insofar as the power to “frisk” is concerned) incorrectly decided, I might — even if I felt bound to adhere to that case — vote to exclude the evidence incidentally discovered, on the theory that half a constitutional guarantee is better than none. I might also vote to exclude it if I agreed with the original-meaning-is-irrelevant, good-policy-is-constitutional-law school of jurisprudence that the Terry opinion represents. As a policy matter, it may be desirable to permit “frisks” for weapons, but not to encourage “frisks” for drugs by admitting evidence other than weapons.

I adhere to original meaning, however. And though I do not favor the mode of analysis in Terry, I cannot say that its result was wrong. Constitutionality of the “frisk” in the present case was neither challenged nor argued. Assuming, therefore, that the search was lawful, I agree with the Court’s premise that any evidence incidentally discovered in the course of it would be admissible, and join the Court’s opinion in its entirety.

Chief Justice Rehnquist,

with whom

Justice Black-mun and Justice Thomas join, concurring in part and dissenting in part.

I join Parts I and II of the Court’s opinion. Unlike the Court, however, I would vacate the judgment of the Supreme Court of Minnesota and remand the case to that court for further proceedings.

The Court, correctly in my view, states that “the dispositive question before this Court is whether the officer who conducted the search was acting within the lawful bounds marked by Terry [v. Ohio, 892 U. S. 1 (1968),] at the time he gained probable cause to believe that the lump in respondent’s jacket was contraband.” Ante, at 377. The Court then goes on to point out that the state trial court did not make precise findings on this point, but accepts the appellate findings made by the Supreme Court of Minnesota. I believe that these findings, like those of the trial court, are imprecise and not directed expressly to the question of the officer’s probable cause to believe that the lump was contraband. Because the Supreme Court of Minnesota employed a Fourth Amendment analysis which differs significantly from that now adopted by this Court, I would vacate its judgment and remand the ease for further proceedings there in the light of this Court’s opinion.

       Most state and federal courts have recognized a so-called “plain-feel” or “plain-touch” corollary to the plain-view doctrine. See United States v. Coleman, 969 F. 2d 126, 132 (CA5 1992); United States v. Salazar, 945 F. 2d 47, 51 (CA2 1991), cert. denied, 504 U. S. 923 (1992); United States v. Buchannon, 878 F. 2d 1065, 1067 (CA8 1989); United States v. Williams, 262 U. S. App. D. C. 112, 119-124, 822 F. 2d 1174, 1181-1186 (1987); United States v. Norman, 701 F. 2d 295, 297 (CA4), cert. denied, 464 U. S. 820 (1983); People v. Chavers, 33 Cal. 3d 462, 471-473, 658 P. 2d 96, 102-104 (1983); Dickerson v. State, No. 228, 1993 Del. LEXIS 12, *3-*4 (Jan. 26, 1993); State v. Guy, 172 Wis. 2d 86, 101-102, 492 N. W. 2d 311, 317-318 (1992). Some state courts, however, like the Minnesota court in this case, have rejected such a corollary. See People v. Diaz, 81 N. Y. 2d 106, 612 N. E. 2d 298 (1993); State v. Collins, 139 Ariz. 434, 435-438, 679 P. 2d 80, 81-84 (Ct. App. 1983); People v. McCarty, 11 Ill. App. 3d 421, 422, 296 N. E. 2d 862, 863 (1973); State v. Rhodes, 788 P 2d 1380, 1381 (Okla. Crim. App. 1990); State v. Broadnax, 98 Wash. 2d 289, 296-301, 654 P. 2d 96, 101-103 (1982); cf. Commonwealth v. Marconi, 408 Pa. Super. 601, 611-615, and n. 17, 597 A. 2d 616, 621-623, and n. 17 (1991), appeal denied, 531 Pa. 638, 611 A. 2d 711 (1992).

       Before reaching the merits of the Fourth Amendment issue, we must address respondent’s contention that the case is moot. After respondent was found guilty of the drug possession charge, the trial court sentenced respondent under a diversionary sentencing statute to a 2-year period of probation. As allowed by the diversionary scheme, no judgment of conviction was entered and, upon respondent’s successful completion of probation, the original charges were dismissed. See Minn. Stat. § 152.18 (1992). Respondent argues that the case has been rendered moot by the dismissal of the original criminal charges. We often have observed, however, that "the possibility of a criminal defendant’s suffering ‘collateral legal consequences’ from a sentence already served” precludes a finding of mootness. Pennsylvania v. Minims, 434 U. S. 106, 108, it 3 (1977) (per curiam); see also Evitts v. Lucey, 469 U. S. 387, 391, n. 4 (1985); Sibron v. New York, 392 U. S. 40, 53-58 (1968). In this case, Minnesota law provides that the proceeding which culminated in finding respondent guilty “shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime or for any other purpose.” Minn. Stat. § 152.18 (1992). The statute also provides, however, that a nonpublic record of the charges dismissed pursuant to the statute “shall be retained by the department of public safety for the purpose of use by the courts in determining the merits of subsequent proceedings” against the respondent. Ibid. Construing this provision, the Minnesota Supreme Court has held that “[t]he statute contemplates use of the record should [a] defendant have ‘future difficulties with the law.’” State v. Goodrich, 256 N. W. 2d 506, 512 (1977). Moreover, the Court of Appeals for the Eighth Circuit has held that a diversionary disposition under § 152.18 may be included in calculating a defendant’s criminal history category in the event of a subsequent federal conviction. United States v. Frank, 932 F. 2d 700, 701 (1991). Thus, we must conclude that reinstatement of the record of the charges against respondent would carry collateral legal consequences and that, therefore, a live controversy remains.

       “[T]he police officer in each [case would have] had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification . . , and permits the warrantless seizure.” Coolidge v. New Hampshire, 403 U. S. 443, 466 (1971) (opinion of Stewart, J.).

       We also note that this Court’s opinion in Ybarra v. Illinois, 444 U. S. 85 (1979), appeared to contemplate the possibility that police officers could obtain probable cause justifying a seizure of contraband through the sense of touch In that case, police officers had entered a tavern and subjected its patrons to patdown searches. While patting down the petitioner Ybarra, an “officer felt what he described as ‘a cigarette pack with objects in it,'” seized it, and discovered heroin inside. Id., at 88-89. The State argued that the seizure was constitutional on the grounds that the officer obtained probable cause to believe that Ybarra was carrying contraband during the course of a lawful Terry frisk. Ybarra, supra, at 92. This Court rejected that argument on the grounds that “[t]he initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous,” as required by Terry. 444 U. S., at 92-93. The Court added: “[s]ince we conclude that the initial patdown of Ybarra was not justified under the Fourth and Fourteenth Amendments, we need not decide whether or not the presence on Ybarra's person of 'a cigarette pack with objects in it’ yielded probable cause to believe that Ybarra was carrying any illegal substance.” Id., at 93, n. 5. The Court’s analysis does not suggest, and indeed seems inconsistent with, the existence of a categorical bar against seizures of contraband detected manually during a Terry patdown search.