whom Mr. Justice Burton joins, dissenting.
Mere failure to have an appropriate warrant for arrest or search, without aggravating circumstances of misconduct in obtaining evidence, invalidates a federal conviction helped by such an unreasonable search and seizure. *143Such was the construction placed upon the Fourth Amendment by Weeks v. United States, 232 U. S. 383. But Wolf v. Colorado, 338 U. S. 25, held that the rule of the Weeks case was not to be deemed part of the Due Process Clause of the Fourteenth Amendment and hence was not binding upon the States. Still more recently, however, in Rochin v. California, 342 U. S. 165, the Court held that “stomach pumping” to obtain morphine capsules, later used as evidence in a trial, was offensive to prevailing notions of fairness in the conduct of a prosecution and therefore invalidated a resulting conviction as contrary to the Due Process Clause.
The comprehending principle of these two cases is at the heart of “due process.” The judicial enforcement of the Due Process Clause is the very antithesis of a Procrustean rule. In its first full-dress discussion of the Due Process Clause of the Fourteenth Amendment, the Court defined the nature of the problem as a “gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.” Davidson v. New Orleans, 96 U. S. 97, 104. The series of cases whereby, in the light of this attitude, the scope of the Due Process Clause has been unfolded is the most striking, because the liveliest, manifestation of the wide and deep areas of law in which adjudication “depends upon differences of degree. The whole law does so as soon as it is civilized.” Holmes, J., concurring in LeRoy Fibre Co. v. Chicago, M. & St. P. R. Co., 232 U. S. 340, 354. It is especially true of the concept of due process that between the differences of degree which that inherently undefinable concept entails “and the simple universality of the rules in the Twelve Tables or the Leges Barbarorum, there lies the culture of two thousand years.” Ibid.
In the Wolf case, the Court rejected one absolute. In Rochin, it rejected another.
*144In holding that not all conduct which by federal law is an unreasonable search and seizure vitiates a conviction in connection with which it transpires, Wolf did not and could not decide that as long as relevant evidence adequately supports a conviction, it is immaterial how such evidence was acquired. For the exact holding of that case is defined by the question to which the opinion addressed itself: “Does a conviction by a State court for a State offense deny the 'due process of law’ required by the Fourteenth Amendment, solely because evidence that was admitted at the trial was obtained under circumstances which would have rendered it inadmissible in a prosecution for violation of a federal law in a court of the United States because there deemed to be an infraction of the Fourth Amendment as applied in Weeks v. United States, 232 U. S. 383?” Thus, Wolf did not change prior applications of the requirements of due process, whereby this Court considered the whole course of events by which a conviction was obtained and was not restricted to consideration of the trustworthiness of the evidence.
Rochin decided that the Due Process Clause of the Fourteenth Amendment does not leave States free in their prosecutions for crime. The Clause puts limits on the wide discretion of a State in the process of enforcing its criminal law. The holding of the case is that a State cannot resort to methods that offend civilized standards of decency and fairness. The conviction in the Rochin case was found to offend due process not because evidence had been obtained through an unauthorized search and seizure or was the fruit of compulsory self-incrimination. Neither of these concepts, relevant to federal prosecutions, was invoked by the Court in Rochin, so of course the Wolf case was not mentioned. While there is in the case before us, as there was in Rochin, an element of unreasonable search and seizure, what is *145decisive here, as in Rochin, is additional aggravating conduct which the Court finds repulsive.
Thus, the basis on which this case should be adjudicated is laid down in Rochin: “Regard for the requirements of the Due Process Clause ‘inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings [resulting in a conviction] in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.’ ” 342 U. S., at 169, quoting from Malinski v. New York, 324 U. S. 401, at 416-417.
This brings us to the specific circumstances of this case. This is a summary of the conduct of the police:
(1) They secretly made a key to the Irvines’ front door.
(2) By boring a hole in the roof of the house and using the key they had made to enter, they installed a secret microphone in the Irvine house with a listening post in a neighboring garage where officers listened in relays.
(3) Using their key, they entered the house twice again to move the microphone in order to cut out interference from a fluorescent lamp. The first time they moved it into Mr. and Mrs. Irvine’s bedroom, and later into their bedroom closet.
(4) Using their key, they entered the house on the night of the arrest and in the course of the arrest made a search for which they had no warrant.
There was lacking here physical violence, even to the restricted extent employed in Rochin. We have here, however, a more powerful and offensive control over the Irvines’ life than a single, limited physical trespass. Cer*146tainly the conduct of the police here went far beyond a bare search and seizure. The police devised means to hear every word that was said in the Irvine household for more than a month. Those affirming the conviction find that this conduct, in its entirety, is “almost incredible if it were not admitted.” Surely the Court does not propose to announce a new absolute, namely, that even the most reprehensible means for securing a conviction will not taint a verdict so long as the body of the accused was not touched by State officials. Considering the progress that scientific devices are making in extracting evidence without violence or bodily harm, satisfaction of due process would depend on the astuteness and subtlety with which the police engage in offensive practices and drastically invade privacy without authority of law. In words that seem too prophetic of this case, it has been said that “[djiscovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” Brandeis, J., dissenting in Olmstead v. United States, 277 U. S. 438, 473.
The underlying reasoning of Bochin rejected the notion that States may secure a conviction by any form of skulduggery so long as it does not involve physical violence. The cases in which coercive or physical infringements of the dignity and privacy of the individual were involved were not deemed “sports in our constitutional law but applications of a general principle. They are only instances of the general requirement that States in their prosecutions respect certain decencies of civilized conduct. Due process of law, as a historic and generative principle, precludes defining, and thereby confining, these standards of conduct more precisely than to say that convictions cannot be brought about by methods that offend 'a sense of justice.’ ” 342 U. S., at 173.
*147Since due process is not a mechanical yardstick, it does not afford mechanical answers. In applying the Due Process Clause judicial judgment is involved in an empiric process in the sense that results are not predetermined or mechanically ascertainable. But that is a very different thing from conceiving the results as ad hoc decisions in the opprobrious sense of ad hoc. Empiricism implies judgment upon variant situations by the wisdom of experience. Ad hocness in adjudication means treating a particular case by itself and not in relation to the meaning of a course of decisions and the guides they serve for the future. There is all the difference in the world between disposing of a case as though it were a discrete instance and recognizing it as part of the process of judgment, taking its place in relation to what went before and further cutting a channel for what is to come.
The effort to imprison due process within tidy categories misconceives its nature and is a futile endeavor to save the judicial function from the pains of judicial judgment. It is pertinent to recall how the Court dealt with this craving for unattainable certainty in the Rochin case:
“The vague contours of the Due Process Clause do not leave judges at large. We may not draw on our merely personal and private notions and disregard the limits that bind judges in their judicial function. Even though the concept of due process of law is not final and fixed, these limits are derived from considerations that are fused in the whole nature of our judicial process. See Cardozo, The Nature of the Judicial Process; The Growth of the Law; The Paradoxes of Legal Science.' These are considerations deeply rooted in reason and in the compelling-traditions of the legal profession. The Due Process Clause places upon this Court the duty of exercising *148a judgment, within the narrow confines of judicial power in reviewing State convictions, upon interests of society pushing in opposite directions.” 342 U.S., at 170-171.
Nor can we dispose of this case by satisfying ourselves that the defendant’s guilt was proven by trustworthy evidence and then finding, or devising, other means whereby the police may be discouraged from using illegal methods to acquire such evidence.
This Court has rejected the notion that because a conviction is established on incontestable proof of guilt it may stand, no matter how the proof was secured. Observance of due process has to do not with questions of guilt or innocence but the mode by which guilt is ascertained. Mere errors of law in the conduct of State trials afford no basis for relief under the Fourteenth Amendment, and a wide swath of discretion must be left to the State Courts in such matters. But when a conviction is secured by methods which offend elementary standards of justice, the victim of such methods may invoke the protection of the Fourteenth Amendment because that Amendment guarantees him a trial fundamentally fair in the sense in which that idea is incorporated in due process. If, as in Rochin, “[o]n the facts of this case the conviction of the petitioner has been obtained by methods that offend the Due Process Clause,” 342 U. S., at 174, it is no answer to say that the offending policemen and prosecutors who utilize outrageous methods should be punished for their misconduct.1
*149Of course it is a loss to the community when a conviction is overturned because the indefensible means by which it was obtained cannot be squared with the commands of due process. A new trial is necessitated, and by reason of the exclusion of evidence derived from the unfair aspects of the prior prosecution a guilty defendant may escape. But the people can avoid such miscarriages of justice. A sturdy, self-respecting democratic community should not put up with lawless police and prosecutors. “Our people may tolerate many mistakes of both intent and performance, but, with unerring instinct, they know that when any person is intentionally deprived of his constitutional rights those responsible have committed no ordinary offense. A crime of this nature, if subtly encouraged by failure to condemn and punish, certainly leads down the road to totalitarianism.” 2
That the prosecution in this case, with the sanction of the courts, flouted a legislatively declared philosophy against such miscreant conduct and made it a policy merely on paper, does not make the conduct any the less a disregard of due process. Cf. Rochin v. California, supra, at 167.
Statement by Director J. Edgar Hoover of the Federal Bureau of Investigation in FBI Law Enforcement Bulletin, September. 1952,