dissenting:
In her careful and well-reasoned opinion for the majority, Judge Ginsburg convine-*1181ingly analyzes the current state of the Supreme Court precedent controlling our decision today. I concur with the majority in its conclusion that the Court’s ruling in Arkansas v. Sanders1 compels us, a lower court, to hold that a warrant is now required before a police officer may open an opaque container whose shape does not disclose its probable contents, even if the container has been found during a lawful war-rantless search of an automobile.
But no matter how correct this holding seems to be, pending further clarification by the Supreme Court, we should not be making this decision today.2 This case should have been decided without a major constitutional pronouncement from this court. To prevent unnecessary constitutional decisionmaking, the Supreme Court has directed the lower courts to decide potentially dispositive issues concerning the retroactive application of the exclusionary remedy before passing on to substantive questions of constitutional law.3 But the majority today dismisses — in my view incorrectly — the government’s position that the benefits of the Sanders rule are not retroactively available to Ross.4
The majority has stumbled over the retroactivity hurdle. Under the standard enunciated by the Supreme Court in United States v. Peltier5 and binding on us, “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”6 It is no secret that at the time Detective Cassidy opened Ross’s bag and pouch the nation’s leading lower courts and commentators were admitting puzzlement regarding how the Supreme Court would ultimately resolve the issue finally addressed by it in Sanders7 So we would have to impute to Detective Cassidy nearly supernatural powers to see the future before we could charge him with knowledge that his conduct was unconstitutional. The windfall benefit of the exclusionary remedy thus should not be extended to Ross and the evidence uncovered by Cassidy should not be the subject of ex post facto suppression.
In Part I of the opinion that follows I show why the majority plainly errs in gratuitously conferring on Ross the advantages of Sanders. Then, having been forced to address the merits by the majority’s determination that Sanders applies retroactively, I set forth in Part II why I believe a judge sitting on a lower court must agree with the majority’s conclusion that Sanders applies to paper bags. Finally, in Part III I take the opportunity this case presents to underscore once again the devastating impact the exclusionary remedy has had on the administration of the criminal justice system. The elimination of this ill-conceived anachronism is now long overdue.
*1182I. THE RETROACTIVE REACH OF SANDERS
While for the reasons set out in Part II of this opinion I agree with the majority that Sanders established that a suspect has a constitutional right to have the police obtain a warrant before they open a container found during a search of a car, I do not agree that the appellant before us is entitled to the benefits of the exclusionary remedy for violations of the Sanders rule that occurred before Sanders was decided. The exclusionary remedy is not a personal right to which Ross can lay claim;8 it is merely a judicial attempt to remove whatever incentive there might otherwise be to police misconduct.9 Because Sanders had not yet been decided on the evening when Detective Cassidy opened Ross’s brown paper bag and red leather pouch,10 Cassidy could not possible have “had knowledge, or ... properly be[en] charged with knowledge”11 that opening containers found in a car without a warrant would later be held to violate the Constitution. A police official cannot be deterred from doing something he could not have known was unlawful. Under the controlling Supreme Court precedent,12 I accordingly would hold that the evidence Cas-sidy obtained was properly admitted at Ross’s trial.
A. The Significance of Retroactivity
In Sanders the Supreme Court expanded the scope of the right to a warrant under the Fourth Amendment to cover containers found during a lawful search of the integral parts of an automobile. In the case before *1183us, a majority of this court has felt it necessary to reach the question whether Ross’s brown paper bag is a container of a type subject to the Sanders mandate, and to hold that it is.13 But before Ross himself can benefit from Sanders two other questions must be answered in his favor: it must be decided, first, that the right announced in Sanders applies retroactively to pre-Sanders searches, and if so, that the exclusionary remedy for violations of that right are also available retroactively.
Admittedly, the answers we give to these questions in the long run will be of lesser significance than the holding to which the court today directs most of its energy — that Sanders applies to paper bags.14 It hardly needs to be said that the conclusion that Sanders applies retroactively will be disposi-tive of only the relatively few cases arising from events occurring during a limited stretch of time.
Nevertheless, were we to find that the exclusionary remedy for violations of the Sanders rule is not available retroactively, the outcome of Ross’s case could be determined without reaching the broader constitutional question the majority today addresses, and on which I therefore have felt obliged to write. To prevent just this sort of unnecessary constitutional decisionmak-ing, the Supreme Court has explicitly directed us to follow the practice of deciding retroactivity issues first whenever possible.15 Were this court to do otherwise, it would not only disobey the mandate of the Supreme Court, but demonstrate that it misunderstands the proper constitutional role of the federal courts.16
The majority, of course, did address the retroactivity question first,17 but, its determination that Sanders applies retroactivity is plainly in error. Unfortunately, this error is compounded in that it provides the excuse necessary to permit the majority to reach a constitutional issue we could have left for another day.
B. The Controlling Precedent: United States v. Peltier
As the majority opinion admits, the Supreme Court held in United States v. Peltier 18 that “decisions expanding the scope of the exclusionary rule should have prospective effect only.”19 The Peltier opinion is the key to determining whether the exclusionary remedy should be applied retroactively to searches in violation of Sanders. It is thus worth recalling in some detail what the Peltier court decided.
Peltier announced useful guidelines for the retroactive application of the exclusionary rule remedy, but in doing so it did not create new doctrine. It merely codified what had previously been decided piecemeal. For prior to Peltier, as the Court noted:
[I]n every case in which the Court ha[d] addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court ... concluded that any such new constitutional principle would be accorded only prospective application.20
In Peltier the Court did little more than set forth in a single opinion the basis for this unbroken string of decisions.21
*1184To show why the Court had repeatedly come to the same conclusion, Justice Rehnquist first recounted the two principal functional bases for the exclusionary remedy: (1) the “imperative of judicial integrity”22 demanding that courts not become “accomplices in the willful disobedience of a Constitution they are sworn to uphold”23 by permitting the use at trial of evidence unlawfully obtained; and (2) the “deterrent purpose served by the exclusionary rule” 24 in removing an incentive to unlawful police behavior. Because the exclusion of otherwise reliable evidence obstructs the primary factfinding function of a trial, the Court concluded that the retroactive application of the exclusionary remedy should always be based on the outcome of a balancing test weighing the disruption of accurate fact-finding against the probable benefits of the exclusion of evidence. In the Court’s words: “Whether or not the exclusionary rule should be applied ... depends on whether considerations of either judicial integrity or deterrence of Fourth Amendment violations are sufficiently weighty to require that”25 evidence of unquestioned “reliability and relevancy”26 be excluded.
The Peltier Court not only set out the interests to be weighed by future courts, but itself undertook a threshold balancing of the competing considerations in order to identify those situations in which the functional purposes of the exclusionary rule are so little served that the balance always compels admission of otherwise reliable and relevant evidence. Examining in turn both functional pillars of the exclusionary rule, the Court first observed that “the introduction of evidence which had been seized by law enforcement officials in good-faith compliance with then-prevailing constitutional norms [does] not make the courts ‘accomplices in the willful disobedience of a Constitution they are sworn to uphold.’ ”27 The Court then noted, with regard to the deterrent aims of the exclusionary remedy, that “[w]here the official action was pursued in complete good faith ... the deterrence rationale loses much of its force”28 because it “necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct.”29 The Court therefore concluded that a balancing of interests always requires admission of evidence in retroactivity cases where the officer involved acted in reasonable reliance on prior legal pronouncements from authoritative sources. In short, the Peltier rule binding on this court is: “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”30
C. The Peltier Standard and Detective Cassidy’s Search
The key question we must decide, then, is whether Detective Cassidy, when he opened Ross’s brown paper bag and red leather pouch, could possibly have “had knowledge, *1185or ... properly be[en] charged with knowledge” that his actions violated the Constitution. I conclude he could not have been so charged. To understand why, it is necessary to put the state of the law on 27 November 1978, when Cassidy searched Ross’s trunk, into perspective.
Detective Cassidy opened Ross’s trunk fifty-three years after the Supreme Court authorized warrantless searches of automobiles in Carroll v. United States31 and seventeen months after the Court decided United States v. Chadwick.32 While Chadwick merely held that a warrant is required before police can open personal luggage seized under circumstances in which existing exceptions to the warrant requirement, including the Carroll exception, cannot be invoked, and thus in no way directly involved the Carroll exception,33 it is nonetheless of some significance here because it evidently set some people, including some courts, to speculating that the Supreme Court might be prepared to cut back on the Carroll exception by removing from its ambit containers found during a lawful warrantless search of a car. Because Chadwick must be the pivotal point of any reasonable argument that Detective Cassidy should somehow have been sufficiently prescient to have predicted Sanders,34 it is necessary closely to consider just what Chadwick in fact accomplished.
The facts of Chadwick are simple.35 Unknownst to him, Chadwick was in the company of government agents when he met the train on which two accomplices had travelled from San Diego to Boston with a double-locked footlocker containing contraband. As he and his two partners in crime began loading the footlocker into the trunk of his parked car, the agents, with ample probable cause, seized the footlocker and arrested all three. The footlocker, reduced to the agents’ exclusive possession and control, was removed to the Federal Building, and, after one-and-one-half hours had passed, searched without a warrant. At a pretrial suppression hearing, Chadwick attacked the warrantless search on the basis that it had violated his rights under the Fourth Amendment.36
When this litigation reached the Supreme Court, the government seized on the case as a chance to offer the Court three separate opportunities to expand the government’s right to conduct searches without a warrant. First, the government argued the rather extreme position that the “Warrant Clause protects only interests traditionally identified with the home.”37 Had the Court accepted this view, the government’s right to search without a warrant would have expanded to encompass almost all situations not closely linked to a dwelling. Second, the government argued that the exception to the warrant requirement for *1186searches incident to an arrest includes the search of “any property in the possession of a person arrested in public, so long as there is probable cause to believe that the property contains contraband or evidence of crime.”38 Had the Court adopted this theory, the exception for searches incident to an arrest would have grown to include even searches “remote in time or place from the arrest.”39 Finally, the government argued by analogy to the Carroll, or automobile, exception to the warrant requirement that warrantless searches of other mobile objects do not offend the Fourth Amendment.40 Had the Court been persuaded to accept this argument, the automobile search exception would have been replaced by a much broader “mobile personalty” exception.
The Court, however, rejected all three government attempts to expand its rights to search without a warrant, leaving search and seizure law where it stood before. Two points about Chadwick critical to our analysis of the state of the law at the time Ross’s trunk was searched should be noted: (1) Chadwick in no way involved the Carroll exception to the warrant requirement. The car search exception simply was not in the case. Indeed, the government did not (and sensibly could not) invoke it;41 and (2) Chadwick did not cut back on any previously endorsed exception to the warrant requirement; rather, it represented a refusal by the Court to expand the government’s rights to search without a warrant. In short, when Chadwick was decided it would have been quite reasonable to conclude that it had nothing to do with the automobile search exception at all.
Sophisticated observers of the Supreme Court, not unlike astute observers of the Kremlin, however, attempt to draw as much meaning as possible from whatever subtle nuances they think they might be able to detect in Supreme Court opinions. So it did not go unnoticed that Justice Blackmun had drawn a response from another Justice when he wrote in dissent in Chadwick that “if the agents had postponed the arrest a few minutes longer until [Chadwick and company] started to drive away, then the car could have been seized, taken to the agents’ office, and all its contents — including the footlocker — searched without a warrant.”42 In response, Justice Brennan, writing for himself in a concurrence to the Court’s opinion, answered Justice Blackmun by stating that “it is not at all obvious that the agents could legally have searched the footlocker had they seized it after [the suspects] had driven away with it in their car.”43 This comment, taken together with the suggestion that Chadwick be read as disclosing that the Court was preparing to adopt the view that personal luggage is entitled to special protection under the Fourth Amendment, set the stage for a flurry of litigation in the lower courts.
On the day Chadwick was decided, support for the two sides of this litigation could have been lined up as follows. On record in favor of the longstanding view that containers found in a car come under the Carroll exception were not only the two Justices in dissent in Chadwick (Justices Blackmun and Rehnquist) but also the explicit holdings of at least four Circuit Courts of Appeals, the Second,44 the Fifth,45 *1187the Seventh,46 and the Ninth.47 On the other side, favoring the position that containers found in a car are not covered by Carroll, could be found only a possible reading of Chadwick and Justice Brennan’s hint in his response to Justice Blackmun.
By the time Detective Cassidy searched Ross’s trunk, however, the Eighth Circuit,48 the United States District Court for Connecticut,49 and two state courts50 had endorsed the view ultimately to be vindicated by the Sanders decision, while the Ninth Circuit51 had reiterated its support of the previously unanimous pre-Chadwick view of those Circuit Courts of Appeals that explicitly had considered the question. Meanwhile, the best informed commentary had concluded that in view of Chadwick it was no longer possible to determine how the Supreme Court would treat the matter. Prof. LaFave, in his well known treatise, published at about the time Detective Cassi-dy opened Ross’s trunk, summarized the situation as follows: “It is impossible to predict how the Court would decide [a case like Sanders], for the reasoning in Chadwick and the Court’s car search cases does not all point in a single direction.”52
I submit that if the answer to the legal question governing Detective Cassidy’s conduct was impossible for Professor LaFave, it was at least equally impossible for Cassi-dy-
So what can we reasonably expect Detective Cassidy to have made of this confusion in the courts? Even assuming that his duties as a detective permitted him sufficient time to keep up to the minute with the very latest judicial pronouncements, not just from the District of Columbia courts but from all around the country, and even further assuming that in interpreting those decisions he had access to the most sophisticated lawyers in the field of criminal procedure, is it reasonable to conclude that on 27 November 1978 Detective Cassidy “had knowledge, or may properly [have] be[en] charged with knowledge”53 that his search of Ross’s paper bag and pouch was unconstitutional? Surely not, unless every faint hint emanating from the Supreme Court of a possible forthcoming shift in position, provided it gains some judicial support somewhere, is to become the standard against which police conduct is to be measured. If so, the only “law” on which a police officer is entitled to rely is that promulgated by the most extreme courts in the country, pending a definitive statement from the Supreme Court.54
To see the absurdity of attributing to Detective Cassidy foreknowledge of the outcome of Sanders, we might speculate for a moment what would have happened if Detective Cassidy, when he confronted Ross’s paper bag and leather pouch, was accompanied by a visiting “judicial squad” composed of Circuit Judges Friendly, Mansfield, and Meskill of the Second Circuit. If we may be permitted to draw conclusions from the outcome of United States v. *1188Ochs,55 a Second Circuit case decided after Detective Cassidy’s search, had Cassidy been able to turn to this group for advicé, two of the three judges would likely have told him that he did not need a warrant to open the containers he had found. Yet today the majority charges Cassidy with the knowledge that he did need a warrant to satisfy the Constitution.
We imagine that the position of the third judge of the three, Circuit Judge Meskill, would have been agnostic, for in Ochs he refused to reach the question. In explanation, he set forth the following admirable description of the state of the law at that time:
Justice Rehnquist observed in Cady v. Dombrowski that the law governing war-rantless searches and seizures, especially those involving vehicles, “is something less than a seamless web.” So serious is the confusion that six years after Cady it can fairly be said that the law in this area is developing without any predictability or even discernible direction. Warrant-less vehicle search cases shed virtually no light on fact situations which, if one were to attempt to apply the usual methods of legal reasoning, would seem to be distinguishable only on the basis of trivialities. Thus the precedents cast shadows rather than light, making the resolution of each succeeding case less rather than more certain.
In the two years since the Supreme Court held unreasonable the warrantless search of a footlocker removed by federal agents from the trunk of an automobile, the lower federal courts have been unable to harmonize their approaches to searches of flight bags, suitcases, and other containers removed from automobiles.... Clearly, when the precedents in such a crucial area of constitutional law offer so little guidance that it is difficult to choose between opposite results on the basis of superior reasoning, our ability to dispense justice is severely hampered.56
Nonetheless, today the majority finds that Detective Cassidy should be “charged with knowledge” of the outcome of Sanders.57
To be sure, the majority has company in its conclusion that Sanders should be applied retroactively. Recent Second and Ninth Circuit opinions have come to the same conclusion.58 Like the majority of this court, the Second Circuit in Dien59 has concluded that Sanders made no new law, and thus applies retroactively. In addition, both the Second Circuit in Dien and the Ninth Circuit opinion in MacKay60 draw support for the position that Sanders applies retroactively from the fact that the warrantless search whose legality was litigated in Sanders took place prior to the Supreme Court’s decision in Chadwick. I will examine these contentions in turn.
1. The Proper Test for Prospectivity
With respect, I believe the majority of this court as well as the Dien court have confused the test to be applied in retroac-tivity cases not involving the exclusionary rule with the standard the Peltier decision set forth to be applied in exclusionary rule cases. In situations not involving the retroactive application of the exclusionary remedy, a decision is limited to prospective application only if it meets each of two tests.61 The first of these two is a threshold test *1189which quickly eliminates those new substantive decisions that should not seriously be considered for limitation to prospective effect. This first test was set out by the Supreme Court in Chevron Oil Co. v. Huson,62 in which the Court stated that a case must decide “an issue of first impression whose resolution was not clearly foreshadowed” 63 before the rule of the case can seriously be considered for prospective application only.
Unless the new decision meets the threshold requirements of the Chevron Oil test, it is ineligible for full-blown consideration for limitation to prospective application. If it meets the threshold standards, further consideration is then guided by the three factors set forth in the Supreme Court’s decision in Stovall v. Denno:64 (1) the purpose of the new result; (2) the extent to which law enforcement officials may have relied on the previous law; and (3) the impact of retroactivity on the administration of justice.65 The Court has placed the greatest importance on the first of these factors, the purpose of the new result, stating that it has relied “heavily on the factors of the extent of reliance and consequent burden on the administration of justice only when the purpose of the rule in question did not clearly favor either retroactivity or prospec-tivity.” 66
This two-step analysis, with a threshold test which must be passed before a court moves on to full-scale consideration of the desirability of limiting a ruling to retroac-five application, however, is now only applied in retroactivity cases not involving the exclusionary remedy; the Supreme Court announced a different approach to be used in exclusionary rule cases in its opinion in United States v. Peltier. In fact, the majority of the Ninth Circuit, considering Pel-tier before appeal to and reversal by the Supreme Court,67 as well as the Justices who dissented from the Supreme Court decision in Peltier'68 would have decided Peltier by applying just this two-step analysis. Sitting en banc the Ninth Circuit, using this analysis, divided seven to six over whether Almeida-Sanchez v. United States69 the substantive ruling behind Peltier, could pass the threshold test so that limitation to prospective application could be seriously considered. The battle was over whether Al-meida-Sanchez so clearly made new law as not to have been foreshadowed. The Justices dissenting in the Supreme Court as well as the seven-judge majority of the Ninth Circuit concluded that Almeida-San-chez merely “corrected] an aberration.”70 The six-judge minority in the Ninth Circuit, however, would have found that Almeida-Sanchez passed the threshold test.
The majority in the Supreme Court, however, rejected this entire analysis. In its place was substituted the standard I have summarized above which requires that evidence not retroactively be excluded unless the responsible officer either “had knowledgé” 71 or could “properly be charged with *1190 knowledge” 72 that his actions were unconstitutional at the time of the search.
Thus, the Second Circuit, by focusing on “whether Arkansas v. Sanders made new law”73 and the majority of this court, by inquiring whether Sanders developed “new law” 74 or “restate[d] ... doctrine already in place,”75 are incorrectly applying the initial threshold test appropriate to a consideration of retroactivity outside of the exclusionary remedy context. Peltier, however, directs us to apply a different standard to exclusionary rule cases, where the test instead is whether the police official responsible “had knowledge”76 or could “properly [have] befen] charged with knowledge”77 that his actions violated the Constitution. The appropriate question to ask, then, is not whether lawyers and judges would describe the new decision as a sharp break with past law, but whether a working patrolman can properly be charged with foreknowledge of the new decision’s outcome. These are two quite different matters.
Perhaps it is open to extended argument whether, as the majority suggests, Sanders merely “restatefd] and appliefd]”78 past Supreme Court decisions, and in particular United States v. Chadwick.79 It is not open to question, however, that before Sanders was decided the most expert authorities were unable to predict its outcome. It is also undeniable that Sanders made new law in the sense that it put an end to the disorder which had broken out in the lower federal courts and the state courts in the wake of Chadwick. Sanders “clarified” the law by affirming the decision of the Arkansas Supreme Court; on the other hand, had Sanders “clarified” the law by reversing the Arkansas Supreme Court, it would have been easy to argue that that outcome also represented no sharp break with the past. Indeed, that argument would have been easier to make. The point is that before Sanders the law was so confused that neither outcome could represent a sharp break. It is impossible to break sharply from chaos.
But the question Peltier instructs us to consider is not whether Sanders broke with the past, but whether Detective Cassidy can be charged with foreknowledge of its outcome. The answer is plain. If the leading legal authorities, both on and off the bench, could not predict Sanders’s outcome, how can Detective Cassidy be charged with that prediction? He would have needed a crystal ball neither he nor anyone else had.
I thus conclude that both the majority here and the Second Circuit in Dien have erred in part because they have applied the wrong standard. Rather than use the test Peltier instructs us to apply to retroactivity cases involving the exclusionary remedy, they have used the older, more general, threshold test to be used in other retroactivity cases. They have thus been led unnecessarily and incorrectly to consider whether lawyers and judges would regard Sanders as a sharp, avulsive change in the stream of law, rather than to ask whether Detective Cassidy on the beat could be charged with knowledge of Sanders’s outcome months before the Supreme Court decided the case. Using the wrong test, they have been led to the wrong results.
2. Did Sanders Implicitly Hold Chadwick to Apply Retroactively?
Both the Second Circuit opinion in Dien80 and the Ninth Circuit decision in MacKay81 offer a second basis for applying Sanders *1191retroactively which, though it was not adopted by the majority today, should be addressed. Each of the other circuits has noticed that the search complained of in Sanders took place before the Supreme Court decision in Chadwick.82 These courts then conclude that the Supreme Court has decided implicitly to apply Chadwick retroactively, which then suggests that Sanders, a “clarification” of Chadwick, should also be applied retroactively.
This reads far too much into the Court’s action in Sanders. In the past, the Supreme Court has explicitly refused to read previous cases applying without discussion the exclusionary remedy retroactively as foreclosing the retroactivity issue.83 In fact, in the Peltier decision itself the Court referred to the fact that after the Court’s landmark decision in Mapp v. Ohio,84 three important subsequent cases applied Mapp retroactively without discussion before the Court then decided Linkletter v. Walker85 in which it refused to apply Mapp retroactively on collateral review of state convictions. We are thus on notice that it is inappropriate to read too much into a decision which does not so much as mention the retroactivity question.
In addition, the argument would appear to prove too much, for it implies that not only Sanders but also Chadwick is to be applied retroactively since the search whose legality was tested in Sanders occurred before the Court’s decision in Chadwick. Although anything is perhaps possible until the Supreme Court speaks to the contrary, the nearly unanimous view of those circuits addressing the issue has been that Chadwick does not apply retroactively.86
The only circuit to apply Chadwick retroactively, the Eighth Circuit, did so in a case ambiguously remanded from the Supreme Court “for further consideration in light of United States v. Chadwick."87 As Chief Judge Gibson put it in his separate concurrence in that Eighth Circuit case, “The Supreme Court remanded the present case for our consideration in light of Chadwick, thus Chadwick applies to this case whether or not it applies to any other.”88 But that conclusion, though understandable, is nonetheless faulty, as the Supreme Court’s treatment of Bowen v. United States89 proved. Bowen involved the retroactive application of Almeida-Sanchez v. United States,90 the case whose retroactive application also was at issue in Peltier. A petition for certiorari was pending in Bowen when the Supreme Court decided Almeida-San-chez. The Court vacated the judgment of the Ninth Circuit in Bowen and remanded it for reconsideration “in the light of Almei-da-Sanchez.” 91 The Ninth Circuit reheard the case en banc but nevertheless affirmed the conviction at issue, holding that Almei-*1192da-Sanchez did not apply retroactively.92 That conclusion was subsequently approved by the Supreme Court when it once again considered the case.93
In sum, it seems at best risky — in view of the Court’s recent pronouncement in Peltier that an expansion of the exclusionary remedy generally is not to be applied retroactively — to read Sanders, in which retroac-tivity was not even mentioned, to hold that Chadwick applies retroactively. The risks are compounded when that conclusion is used to infer that Sanders itself applies retroactively. For, as we pointed out above,94 Chadwick, whatever it may have hinted, did not alter the state of the law at that time but merely held the line against a government attempt to expand the rights of its agents to search without warrants. Sanders, on the other hand, represents a distinct shift in the law, overruling previous decisions of many of the circuits.95 Thus, even if Chadwick were to be applied retroactively, a very doubtful proposition, Sanders should not be.
Thus, neither of the arguments advanced by the majority opinion today and by the Dien and MacKay courts is persuasive. The Supreme Court has not signaled us to apply either Chadwick or Sanders retroactively, and, under the appropriate test, we cannot charge Detective Cassidy with foreknowledge of the outcome of Sanders, and therefore cannot apply the result of that case to the search he conducted.
The undeniable truth of the matter is that no one could foretell with confidence how Sanders would be decided. As for Detective Cassidy’s search of Ross’s belongings, it is noteworthy that this court, sitting first in a three-judge panel and now en banc, has spent six separate opinions deciding, after the fact, with benefit not only of hindsight but also of the briefs and arguments of counsel, that Cassidy should not have looked into Ross’s bag without first obtaining a warrant.
Under these circumstances, suppressing the evidence Cassidy uncovered is nothing short of levying an ex post facto penalty on utterly blameless police work undertaken in the line of duty. Suppressing the evidence in this case cannot deter the police from doing what they have no way of knowing is wrong. And surely it does little to help deter the likes of Ross from preying on the public. The majority’s action today does not deter the constable from blundering by liberating the criminal. It simply liberates the criminal.
II. THE SUBSTANTIVE REACH OF SANDERS
Because a majority of this court has ruled that Sanders applies retroactively, and in view of the position of my dissenting colleagues that even prospectively Sanders does not apply to paper bags,96 or even to pouches,97 I find it necessary to address the majority’s principal holding: that Sanders covers opaque containers whose contents are not perceptible from the exterior.
Of course, were it not for the Supreme Court’s decision in Arkansas v. Sanders, the outcome of this case would be obvious; at least since 1925 when the Supreme Court decided Carroll v. United States,98 lower courts have assumed that an officer with probable cause but without a warrant may *1193stop and search a conveyance and its contents for contraband.99 Sanders, however, holds otherwise.
In effect, Sanders abolished the automobile exception to the warrant requirement as applied in narcotics cases. Traffickers do not spoon contraband powders into glove compartments or shovel them into trunks; narcotics are transported in containers — after Sanders in opaque containers. To search successfully for narcotics hidden in a car a policeman must open the containers he comes upon. But in 1979, after more than a half century of experience with the automobile search exception and in the midst of an epidemic of narcotic addiction, the Court suddenly ruled that before an officer can open a container found in a car he must get a warrant.
This result further complicates the job of the conscientious law officer, adding to the bewildering array of legal issues he faces each time he approaches a car. The Sanders dissent summarizes what an officer must do:
In approaching the vehicle and its occupants, the officer must divide the world of personal property into three groups. If there is probable cause to arrest the occupants, then under Chimel v. California, he may search objects within the occupants’ immediate control, with or without probable cause. If there is probable cause to search the automobile itself, then under Carroll and Chambers the entire interior area of the automobile may be searched, with or without a warrant. But under Chadwick and [Sanders], if any suitcase-like object is found in the car outside the immediate control area of the occupants, it cannot be searched, in the absence of exigent circumstances, without a warrant.100
Sanders thus adds yet another layer of complexity to the legal analysis a well-intentioned officer approaching a car must carry out on the spot. Unfortunately, if there is contraband in the car and the officer’s snap legal judgment is in error, the responsible criminal in all likelihood will go free: either because the officer too precipitously terminated his investigation before discovering the evidence he needed, or because he continued too far or too fast, thereby forcing a judge later to suppress the evidence obtained.
Moreover, police officers on patrol will not be alone in their confusion. We in the courts will also be presented with new Fourth Amendment puzzles to solve; the present litigation undoubtedly is only the beginning of the flood to follow. We will be asked not only to determine whether a container is sufficiently luggage-like to qualify for special treatment under Sanders, but also to decide whether a container found somewhere in a car and opened without a warrant conceivably was within grabbing distance of the car’s arrested occupant, whether an officer in a given instance could in fact discern the contents of an opaque container from its suspicious size and shape,101 and so forth.
Perhaps most troubling will be the inevitable stream of consent cases in which the courts will be required to determine whether an investigating officer obtained effective consent before opening a container found in a car, and if he did, whether it was lawfully obtained and voluntarily granted. From our experience with consent searches of dwellings we know each such case will present unique facts, making it impossible to enunciate general rules applicable to most situations.102 In consequence, state and federal courts will be flooded with ap*1194peals whose resolution will add little to already-existing law.
The new complications Sanders adds to Fourth Amendment analysis and the litigation it has and will continue to spawn would perhaps nonetheless be justified if Sanders brought a long-awaited coherence and consistency to search and seizure doctrine. But Sanders merely reinforces the existing contradictions. How can it be explained on principled grounds why a policeman without a warrant may force open a locked glove box but not lift the lid on an unlocked jewelry box?103 Certainly recourse to the doctrine of exigent circumstances is of little help, for it fails to explain why the locked glove box — but not the jewelry box — can be opened without a warrant by an officer who already has secured an automobile at the stationhouse.104 The law of search warrants as applied to automobiles is no more a seamless web105 after Sanders than before.
With respect, I am unable to understand why Sanders and its precursors were decided as they were; even those with the deepest admiration for the work of the Supreme Court have rarely put its development of the law regarding the exclusionary rule at the top of the list for clarity and consistent logic. The question here, however, is whether Sanders controls the case before this subordinate court. Plainly, Sanders could be distinguished either by following the suggestion of Chief Justice Burger and Justice Stevens concurring in Sanders itself,106 or by adopting an approach similar to that set forth by Judge Tamm writing in dissent here. But I am persuaded that the scope of Sanders is such that it would be inappropriate to do so. The Supreme Court has spoken; we at this court must follow. As a lower court we are required to adhere to the most recent mandate set down by the Supreme Court to the extent with the most conscientious effort we are able to understand its content. To understand what the Court intended Sanders to mean — and to determine how narrowly it should be read— it is useful to begin with a fresh examination of the purposes and limitations of search warrants as applied to containers found in automobiles.
1. The Purposes Served by a Warrant. As traditionally applied to the search of a dwelling the warrant requirement is said to serve at least three purposes.107 First, it provides an independent confirmation by a neutral and detached magistrate before, not after, a search occurs, that probable cause exists. As a result, in the event a magistrate does not find probable cause, the warrant requirement reduces the level of official intrusion to zero; the intended subject of the search will in all likelihood never become aware a search was even threatened.
Second, the warrant requirement limits the area to be searched and the objects to be seized to those enumerated in the warrant, restricting the scope of the search to the minimum area necessary to accomplish the purpose for which the warrant was authorized. By providing a written record of the basis for the search, a warrant thus helps to limit the range of post hoc rationalizations that can later be used to justify a search of broader sweep than was constitutionally authorized at the outset.
*1195Finally, a warrant reassures the subject of a search that the individuals demanding entrance to his home are authorized police agents with a legal purpose, rather than officers on some frolic of their own. Unquestionably, a citizen is likely to resent even a wholly lawful invasion of his home. But many, perhaps, are able to swallow such an intrusion as a necessary price of citizenship.108 It is an outrage of a different order — and far more frightening — to be the victim of an invasion by officers abusing their ability to act under color of law. The warrant removes this apprehension.
When a container is seized from an automobile after a lawful warrantless search of a car, however, these advantages largely evaporate.109 First, in the event a warrant does not issue for the containers seized, the level of intrusion is reduced modestly, if at all. The car’s occupants already have been stopped, detained, and deprived of control over the seized container. In all likelihood, they also have been arrested, for in most cases probable cause to search for contraband will also provide probable cause to arrest its possessors. Should they be arrested, the car’s occupants will in addition be subject to searches of their persons110 and of the area within grabbing distance of them.111 At this point, if a warrant fails to issue, the additional intrusion they have been spared is surely minimal compared with that which has gone before. By contrast, when a warrant does not issue for the search of a dwelling, the householder is spared even knowledge of the proposed search.
A warrant requirement for containers, moreover, does not define the area to be searched and the objects to be seized; the car has already been searched and the containers seized by the time the warrant issues. Just as obviously, the warrant requirement for searches of containers found in a car does not serve the function of reassuring the occupants of the officer’s lawful purpose and authority. After they have been stopped, searched, deprived of control over their property, and taken to the police station, the moment for reassuring the car’s occupants of the lawful purpose of the police long since will have passed.
A warrant requirement for containers thus provides only a small fraction of the protection assured by the warrant requirement for dwellings. How little is left is demonstrated by considering what value a warrant would be if the same rules applied to the search of houses as apply to the search of cars. Were the warrant requirement for houses to parallel that for cars, officers with probable cause would be authorized to enter a house without producing a warrant, to range free throughout the house while examining its contents, to open cupboards, closets and anything else immovable, then to scoop up any suspicious containers for removal to the stationhouse, probably with the householder himself in tow. After considerable delay, the officers would then triumphantly present the startled householder with a warrant authorizing the opening of the containers seized. Innocent householders could be expected to consider this belated appearance of a warrant a nearly useless afterthought. It is hard .to see why drivers and passengers should react otherwise.
*1196Thus, given that a warrant is not required to search an automobile in the first place, the incremental protection provided by a warrant requirement applied to containers is minimal. But this alone is insufficient cause to abandon the warrant requirement. When constitutional rights are at stake, even modest additional guarantees should not be forgone unless it is necessary to do so.
2. When is a Warrant ImpracticaP Traditionally, it has been considered necessary to forgo the benefits of a warrant when it is “impractical” to apply to a magistrate to obtain one. The principal reason why it may be impractical for an investigator to get a warrant is that the status quo cannot be preserved during the attendant delay.112 Because of the element of surprise, it is normally possible to obtain a warrant before searching a dwelling; the occupants usually are not forewarned and are unable to take evasive action. Situations involving stopped automobiles, however, cannot so easily be frozen while a warrant is obtained. So it has always been held that the warrant requirement does not apply to the search of an occupied automobile.113
But why can the situation not be frozen when an automobile is stopped? After all, a temporary seizure while a warrant is obtained could precede the search. Today, the Court answers this question by focusing on the practical difficulties associated with the temporary seizure of a car.114 But while the first automobile search case decided by the Supreme Court, Carroll v. United States,115 uses language suggesting that the impracticality of obtaining a warrant derives from the difficulties associated with handling automobiles, underlying the Carroll Court’s analysis is the assumption that the source of that impracticality arises from the problems involved in securing the suspects, not their contraband or their vehicle, while a warrant is sought. It is worth reviewing the basis for the Carroll decision.
In Carroll the physical practicality of seizing the vehicle and the suspects while seeking a warrant could not have been challenged because the vehicle and the suspects in fact were seized following the search and taken to a place where a warrant could have been obtained, thus establishing that the police were physically capable of guarding the car, its contents and the suspects while application to a magistrate for a warrant was made. After the warrantless search of the car in Carroll for liquor possessed in violation of the Volstead Act, the officers involved “took the two defendants and the liquor and the car to Grand Rap*1197ids,”116 the nearest city, a location at which a warrant presumably could have been obtained before the officers tore open the seats of the car to find the liquor concealed inside. The Oldsmobile roadster that carried the liquor in Carroll also was impounded as required by the Volstead Act, which specified that “[w]henever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance.”117 The vehicle and suspects having been in fact seized in Carroll, it is undeniable that, at least in the circumstances of that case, it was physically possible for the officers to have obtained a warrant before they tore open the car seats.
Although Chief Justice Taft’s opinion for the Carroll Court does not explicate the real source of the problem in that case in full, not much analysis is needed to see the true nature of the difficulty the case presented. When the “Carroll boys”118 were stopped by police officers on the road from Detroit to Grand Rapids, the officers had neither a legal basis for arresting them nor for seizing their roadster prior to a search. The officers did not have an arrest warrant for Carroll or his accomplices. Under the Volstead Act a first offense was only a misdemeanor, and a warrantless arrest for a misdemeanor required at that time not just probable cause but that the offense had been committed in the presence of the arresting officer.119 Of course in 1925 it was implicitly understood that there was no half-way “stop” of the type eventually authorized by Terry v. Ohio.120 Under the common law rules applicable in Carroll there was no room for investigative detention. Thus, the police in Carroll had no grounds to arrest or even temporarily to detain the occupants of the roadster, and any temporary detention while a search warrant or an arrest warrant was sought would have been unlawful, whatever its physical practicality.
Before the Supreme Court, Carroll and his accomplice Kiro assumed that the search of their car could only be justified as a search incident to an arrest. On this theory, their arrest could not be justified by the fruits of the search which preceded it, because the search could only be justified as an incident of the subsequent arrest. But an arrest for the misdemeanor with which they were charged could not have been made prior to the search, because the officers had only‘probable cause, but had not seen the misdemeanor committed in their presence, when they searched the roadster. Because the arrest was unlawful, the search was unlawful, argued Carroll and Kiro,121 and their conviction had to be overturned. Justice McReynolds, joined by Justice Sutherland, adopted this view in dissent.122
Chief Justice Taft writing for the majority, however, held that a warrantless search, if not a warrantless arrest for a misdemeanor, could be justified on the basis of probable cause alone.123 The warrantless search of the roadster was thus independently justified. In effect, Chief Justice Taft turned Carroll’s theory on its head, justifying the arrests as incident to and dependent on the fruits of a warrantless search, rather than the warrantless search as incident to the arrests. Whereas a warrant would have been required before “a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained,”124 a warrant was not required for “a search of a *1198ship, motor boat, wagon or automobile, for contraband goods, [since] it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”125
But a vehicle can move quickly “out of the locality” only if it and its driver are free to go; so plainly and especially on the facts of Carroll, Chief Justice Taft’s unstated assumption is that Carroll would have been free to drive away because it was not legally permissible to detain him and his accomplices while a warrant was sought The basis of the Carroll decision that a warrant is not required before a search of an automobile on probable cause that it contains contraband thus does not rest on the assumption that it is physically impractical to seize cars and suspects temporarily while a warrant is sought, but on the quite distinct assumption that it was legally impossible so to detain the suspects and impound their car.126
Indeed, the Supreme Court itself appears implicitly and perhaps unconsciously to have understood that the impracticality of obtaining a warrant depends not on the difficulty of seizing and guarding an automobile, but on the problems associated with detaining its occupants. Thus six years after Carroll the Court upheld a warrantless search of an automobile initiated after the driver had entered it but before he had put it into motion.127 And another seven years later, the Court endorsed a warrantless search of a car initiated as the driver alighted after it was brought to a halt in a garage.128 But in Coolidge v. New Hampshire,129 the Court refused to accept a war-rantless search of an unoccupied car whose owner had already been arrested elsewhere.
Turning to modern day law, we then see that the real problem with a warrant requirement for automobile searches results from the difficulties temporary detention poses for suspects and the police who must detain them. Holding suspects for an extended period in limbo with the police will cause vexatious problems for the police, the courts, and not least, for suspects, who, even if guilty, will be denied access to a lawyer and the other rights and protections afforded an arrested person.
I submit that the treatment of suspects, not automobiles, should once again become the principal concern of courts grappling with the auto search exception. The Supreme Court would consistently clarify the aims of the Fourth Amendment were it to state that the relevant impracticality is not that associated with the seizure of cars, but rather that associated with effectively shifting from patrolman to magistrate the decision whether to intrude massively on the rights of a car’s occupants. From such a changed perspective, it would quickly be perceived that the warrant requirement is more harmful than helpful, as I believe experience with the Sanders rule ultimately will prove.
In Carroll there were legal impediments to the temporary seizure of automobiles and suspects while a warrant was obtained. Those legal impediments, erected to shield citizens from unnecessary or improper detentions, are now rarely applicable. But the interests of suspects protected by those impediments are as important today as ever. The imposition of a warrant requirement for containers puts those interests in jeopardy, because in most situations a warrant requirement implies the temporary detention of suspects. At best, it will present suspects with a cruel choice: consent to a search or be detained while a warrant is *1199obtained.130 Absent consent to a search on the spot, detention will usually be necessary to ensure that the suspects, if guilty, do not flee. In legal terms, an arrest will be necessary while the warrant is sought; probable cause to search will also provide probable cause to arrest in most instances involving contraband of which possession is criminal.
Here an intriguing problem for the police will arise in the event a warrant does not issue: the determination by a magistrate that probable cause to search did not exist will strongly suggest probable cause to arrest also did not exist. In consequence, a constitutional tort action131 or an action under 42 U.S.C. § 1983 apparently will then lie against the arresting officer on the basis that the arrest was unconstitutional, putting the officer to the test of proving good faith in court.132 Many officers thus may feel under considerable pressure to obtain consent, rather than be put in jeopardy by attempting to obtain a warrant. One way to get consent may be to threaten not only detention tantamount to arrest, but its trappings as well: booking, incarceration, fingerprinting and so forth. For those who have no criminal record — and who are innocent — the threat of a booking will have a powerfully coercive effect in view of what are widely perceived to be the lifelong consequences of an arrest record. As a result, the characterization of automobile searches as based on “consent” will often ring false.
With a warrant requirement, we therefore must expect much litigation on what constitutes consent, and how the police may obtain it. These problems will be complicated by the fact that consent will almost invariably result in waiver not only of the warrant requirement but also of the probable cause requirement. Without being unduly cynical about the behavior of police in general, it is possible to predict that some police on some occasions will use the threat of obtaining a warrant, with consequent hours of detention and delay, to obtain consent to searches not justified by probable cause. In appropriate circumstances we can then expect courts faced with these situations to rule that “consent” was vitiated by the totality of the circumstances *1200surrounding it.133 In the face of such rulings, other, well-intentioned, police will become uncertain whether, if they rely on consent, they will destroy their case. At least in important investigations, then, they will become reluctant to accept consent, but will feel compelled to insist on obtaining a warrant when there is ample probable cause, even over the protests of citizens who would just as soon permit an empty suitcase to be opened so they can be on their way.
Worse yet, undisciplined police who wish to harass citizens for whatever reason will be given a potent device to do so: the arrest followed by a predictably fruitless, but long drawn out, attempt to get a warrant. Unfortunately, it will be next to impossible for courts to control this type of abuse without damning the police when they do seek a warrant, as well as when they do not. Chaos in the courts is the most likely result.
It is my conclusion that the warrant requirement is therefore impractical whenever the detention of the suspect during the time required to get the warrant is necessary and not independently justified. Because this is normally the case whenever a vehicle is stopped on probable cause that it contains contraband, I would therefore apply the automobile search exception not only to searches of the integral parts of an automobile but to its contents as well.
3. The Supreme Court’s Views on When a Warrant is Impractical. The Supreme Court, however, finds its impracticality elsewhere. In Sanders it concluded that, while it is not practical for the police to get a warrant before searching a car, it is practical to get a warrant before opening containers inside. The reason provided by the Court134 for this distinction is that police anywhere can be assumed to have adequate facilities for securing containers, though not all of the nation’s police can be expected to have the facilities necessary to secure automobiles. The Court thus focuses, not on the impracticality of shifting to a magistrate the decision whether to intrude on the life of a suspect, but on the impracticality of storing cars.
With all due respect, this explanation of impracticality is itself most impractical and theoretical. For surely we can assume that any police department, no matter how small or rural, can transport and impound vehicles illegally parked or abandoned in hazardous locations. Tow trucks are available everywhere and it is a common experience that police are prepared to resort to them. A “boot” on one wheel and one officer to watch over the car would be entirely sufficient to preserve immobile the auto and its contents. The Supreme Court apparently believes, however, that some small police departments may not be able to supply whatever additional resources are necessary to establish a chain of custody sufficient to secure not only a vehicle but evidence within against tampering while a warrant is sought.
The Court is drawing a fine line here. In fact, the difference between the practicality of obtaining a warrant before searching a car and before searching luggage found inside is small. When a warrant is required before a container is opened, the investigating officer must stop the car, search it for containers capable of concealing contraband, seize the containers and arrest the driver, secure the car, transport the driver to a secure location, and then obtain a warrant. When a warrant is required before an auto is searched, on the other hand, nothing is changed except that the officer also is required to secure the evidence that might be within the car against the possibility of tampering or removal — a task in most cases no more difficult than “seizing” an illegally parked car and protecting it against intrusion by keeping it from the public.
*1201But when a line has to be drawn there is little merit in making the obvious observation that points on either side of the line are separated by very little distance. And once the Court had ruled in United States v. Chadwick135 that the warrant requirement applies to luggage but not to cars, it could not avoid deciding whether luggage in a car is or is not subject to the warrant requirement, although in Chadwick it sought to do so.136 It had to draw a line somewhere.
4. Should Sanders Be Distinguished1 Based on the confusion in cases attempting to follow both Chadwick and its “clarification” in Sanders, it appears that the point chosen by the Court was not the best place to draw the line. In fact, because I believe the emphasis should be changed from the impracticality of impounding cars to the impracticality of shifting to a magistrate the decision to intrude significantly on a citizen’s rights, I would not have drawn a line at all. But if a line is to be drawn, it should be clearly and cleanly done so that courts and law officers can know where they stand. Thus, because I believe there should be as little doubt as possible in anyone’s mind whether or not a warrant is required, I cannot accept the invitation this present case provides to distinguish Sanders —and thus perhaps to add to the confusion.
Although it is tempting, I do not follow the approach suggested but not asserted by Chief Justice Burger (joined by Justice Stevens) in his concurrence137 in Sanders. He suggests Sanders might be limited to situations in which the police have probable cause to search luggage and that Sanders might not apply to situations in which the police have less specific information about the location of contraband within a car. Under such a rule a policeman could search luggage found in a car provided he had probable cause to believe contraband could be found somewhere in the car, but did not have sufficient knowledge the contraband was in the luggage. This suggestion, while it would limit the deleterious impact of Sanders, does not seem consistent with or easily integrated within the Court’s analysis of the warrant requirement by reference to practicability. The practicability of obtaining a warrant does not turn on the specificity of an officer’s knowledge of the location of contraband within a car. An even more telling difficulty with this approach is that it puts the prosecutor in an awkward position: at a suppression hearing he must show that the investigating officer knew enough but not too much, that he had sufficient knowledge to establish probable cause but insufficient knowledge to know exactly where the contraband was located. This approach thus not only lacks a functional foundation but would be unworkable in practice.
The second principal approach suggested for limiting Sanders is that adopted by the dissenters today,138 who would find some containers too flimsy to support a legitimate expectation of privacy. Their approach also suffers from debilitating defects. First, it does not focus on the problems of the warrant requirement as applied to automobiles, but instead sweepingly withdraws certain classes of containers from all Fourth Amendment protection. This may be unwise and unnecessary. Expectations of privacy do not correlate well with sturdiness; the most intimate and private letter may lovingly be carried in its original — and now opened — envelope. Moreover, this approach invites endless litigation about what containers are within and what containers are without the ambit of Fourth Amendment protection. In Fourth Amendment law, we need clearer lines and fewer cases.
*1202In sum, I believe that because the Court has chosen to draw a line at luggage, we should respect that line and seek to maintain its clarity and consistency. While I would prefer that the Supreme Court shift its focus from the impracticality of storing evidence to the impracticality of shifting the decision to intrude from the patrolman to the magistrate, until it chooses to do so, if ever, our duty is to carry out its directives. For that reason, I concur in the conclusion reached by the majority concerning the reach of Sanders as applied prospectively.
5. The Contraband Element. Before turning in Part III of this opinion to consider the adverse impact of the exclusionary rule both in this case and more generally I wish to draw attention here to another significant element to be found in the seminal Carroll opinion that has sometimes been overlooked: the weight given the fact that the search was undertaken to locate contraband, not property to which private rights could attach.139
In Carroll it is noteworthy that Chief Justice Taft emphasized that the .statute authorizing the search at issue was primarily directed at the suppression of contraband, and only secondarily at the conviction of its possessors.140 It is clear from the opinion that Taft viewed this fact as supporting the legitimacy of warrantless searches not incident to a valid arrest undertaken in furtherance of the statute.141 And to establish the proposition that war-rantless searches of conveyances had long been authorized he pointed to the numerous statutes enacted and enforced since the nation’s beginning directed specifically at the suppression of contraband and smuggled goods.142 Throughout the opinion there is a constant undertone emphasizing that the liquor seized was contraband.
Although Chief Justice Taft does not much elaborate the point, the basis for this emphasis plainly is to be found in the fact that the possessor of contraband has no property interest in it to counterbalance the government’s interest in reclaiming or suppressing it. Of course, at least since Katz v. United States143 consolidated the line of cases which had eroded the notion that only contraband, fruits, and instrumentalities of crime, but not “mere evidence,” could be seized by the government,144 we no longer think of Fourth Amendment rights solely as incidental to property rights. Fourth Amendment rights are now viewed as vindicating “reasonable expectations of privacy” even in situations in which no property interest exists.145
Nonetheless, as the Carroll opinion shows, in determining whether a search with or without a warrant is “unreasonable” under the Fourth Amendment it is historically and functionally correct to give weight to the fact that in seeking contraband the govern*1203ment is seeking that which it alone has a right to possess, whereas when the government seeks “mere evidence” it wishes to obtain that which it normally has no right to possess or control but in which it now claims a superior interest. There can be no privacy interest in contraband.
III. WE CAN DO BETTER WITHOUT THE EXCLUSIONARY REMEDY
It has now been sixty-seven years since the Supreme Court first applied the exclusionary remedy to evidence obtained in violation of the Fourth Amendment alone,146 and twenty years since the rule was first used against the states.147 During that period some of our finest judges and lawyers have advanced arguments in support of the rule,148 so much so that many now reflexively equate zealous concern for cherished Fourth Amendment guarantees with spirited support for the exclusionary rule. Throughout the rule’s history, however, others, no less distinguished, have opposed the rule and its extensions.149 Over the years the arguments pro and con have been well rehearsed and positions have crystallized to the extent that it sometimes appears as though almost any debate over the merits of the rule will likely degenerate into a polarized contest between proponents of the rule who see their adversaries as lamentably insensitive to violations of basic constitutional freedoms and opponents of the rule who, in turn, accuse the rule’s supporters of softness on crime and criminals.
Along with the exclusionary rule itself, this stereotyped debate between polarized factions simplistically identified with “law and order” and “individual rights” has become an anachronism we can no longer afford. The assumptions which gave rise to the rule and to the stereotyped positions pro and con are no longer valid. Times and circumstances have changed. The rule should now be abolished, not out of an atavistic and nostalgic desire to return to an earlier, more naive era, in which we were content to entrust the protection of individual freedoms to state governments close to the people rather than to the federal judiciary,150 but rather in frank recogni*1204tion that the tools now available to federal judges to combat violations of the Fourth Amendment are far more varied and potent than once they were. At one time it could plausibly be argued that the exclusionary rule, with all its glaring defects, was the best remedy that could be fashioned by federal judges, sworn to uphold the Constitution but given only strictly limited powers with which to do so. But this is no longer so. We can now provide better protections against constitutional violations without undercutting our ability to bring criminals to justice. The time has come to relegate the exclusionary rule to history.
A. Defects of the Exclusionary Rule
The problems the exclusionary rule poses for those charged with the task of fighting crime are plain enough not to require elaboration here.151 Nor is it necessary to add that those problems are unnecessarily compounded when, as the majority has done in the present case, overly zealous courts exclude evidence obtained by a police officer whose actions cannot be faulted on the law established at the time. The excesses in which the majority today indulges, however, are not an inevitable concomitant of the exclusionary rule, and, in fairness, should not be charged against it. But even when the rule is properly applied, it can be an imposing obstacle to the policeman and the prosecutor.
To be sure, the case can be overstated. At least in principle, the rule denies the prosecutor only evidence he would anyway not have had if the police had kept within the bounds of the Constitution. Even so, too many prosecutions, like the prosecution of Albert Ross, have gone awry, not as a result of intentional police misconduct, and certainly not because of any doubt about the guilt of the criminal, but simply because a court, with the benefit of time to reflect and of hindsight, concludes that an officer acting under pressure in the field, maybe under fear for his own life, failed properly to apply the often confused and confusing standards of conduct set out by courts interpreting the Constitution.152
*1205Unfortunately perhaps, when that happens it is the criminal suspect, not the officer, who is before the court. So the court cannot punish the officer. Under the dictates of the exclusionary rule, the court instead punishes the public by releasing a potentially dangerous criminal to resume his criminal depredations. Suffice it to say that the absurdity of this result, if obscure to those whose legal training clouds their judgment, is manifest to most laypeople.153
Rather than dwell on what should be plain to everyone, I would like to emphasize other, perhaps less obvious but equally unfortunate, consequences of this outmoded rule. First, the rule diverts resources allocated to the criminal justice system from the trial of criminals to the trial of the police.154 Innocent criminal defendants may therefore be denied a real chance for a fair trial at least in part because the limited resources available have been diverted to consideration of exclusionary rule questions. These innocent defendants represent a class victimized by the exclusionary rule which often goes unnoticed because attention normally is focused on the boon the rule provides to the guilty. Of course, many a guilty man owes his freedom to the rule; the assumption underlying the rule is that holding the police in check is more important than holding criminals in check, whatever the common experience of city dwellers might be to the contrary. Innocent defendants, however, may, with the public, be indirect victims of the rule.
To understand how the innocent defendant is victimized by the diversion of scarce resources from criminal trials to police discipline, it is necessary briefly to consider how our criminal justice system now operates in fact, if not in theory. The health of the criminal justice system depends in large measure on the quantity and quality of the resources committed to it. Experience unfortunately has shown that the polity is unwilling to devote more than a rather small share of the gross national product to criminal justice. Nonetheless, we in the United States profess to have only the highest ideals when it comes to what we will openly tolerate as a minimum level of due process in criminal adjudication. Moreover, under our constitutional scheme, we have delegated the task of defining that minimum acceptable level of due process principally to the judiciary. But judges work piecemeal and without responsibility for the sacrifices that must be made elsewhere whenever they “purchase” an additional element of due process by holding that it is an indispensable element of a fair trial. This ensures that more due process will be required than the system can afford to pay for. As a result, trials have now been priced too high to be held in most circumstances; usually neither the defendant nor the government can afford to carry the criminal justice process through to its supposed natural conclusion in a full-blown, well prepared trial.155
*1206Instead, we have come increasingly to rely on an informal system of negotiated settlements in the form of plea bargained arrangements between prosecutor and defendant. The results are woeful. Criminals guilty of grievous offenses routinely are permitted to escape with convictions for crimes far less serious carrying only wrist-slapping penalties.156 Meanwhile innocent defendants who might well have been vindicated at trial are coerced into settling for a conviction on a lesser charge; the dire consequences of recalcitrance in bargaining often pose too great a risk to an innocent defendant who fears he may be erroneously convicted after a trial conducted by an ill-compensated and ill-prepared defense lawyer.157
It is against this background that we must measure the diversion of energy, talent and dollars from the central task of fairly determining the guilt and innocence of defendants into the work of adjudicating whether the police have blundered. Plainly, what we have in the way of prosecutors, judges and legal aid attorneys has been spread too thin to permit the allocation of these scarce resources to the discipline of the police. That function should be performed elsewhere and by others. The exclusionary remedy thus literally buys what little in the way of Fourth Amendment protection it affords at the cost of more trials for criminal defendants. Even if the rule did a fair job of promoting Fourth Amendment values, this would be at best a questionable bargain.
But in fact, far from enhancing Fourth Amendment guarantees, in the long run the exclusionary remedy undoubtedly erodes Fourth Amendment protections. If one were diabolically to attempt to invent a rule sure slowly to undermine the substantive reach of the Fourth Amendment, it would be hard to do better than the exclusionary rule. Every trial lawyer understands how much easier it is to get a favorable ruling on the law if the facts of your case are attractive and your client, cosmetic. But the exclusionary rule neatly assures that nearly every Fourth Amendment question litigated involves unsavory facts and disreputable clients. Often, a ruling favorable to a broad reading of the Fourth Amendment will result in the freeing of a criminal plainly guilty of the most heinous offenses to prey once more on the public. Courts are not unaware of the consequences of their rulings; judges cannot help but strain to avoid such an outcome if possible. So whatever short term benefits the rule might achieve by way of additional compliance must be more than counterbalanced by a slow but certain narrowing of the substantive reach of the Fourth Amendment.158
B. The Rule’s Supposed Advantages
The exclusionary rule thus gratuitously frees criminals to prey on the public, worsens the plight of innocent defendants by reducing the chances that adequate resources will be available to afford them a fair trial, and contributes to the gradual erosion of substantive rights under the Fourth Amendment. What can be said in its favor?
The usual explanation for the exclusionary rule is that it removes whatever incentive there might otherwise be to unconstitutional police conduct, by denying the government the fruits of unlawful searches and seizures.159 This explanation is some*1207time's summarized by saying that the rule serves as a deterrent to police misconduct, though that is not strictly true in most cases even in theory.160 Not only does the rule fail to levy a penalty directly on the offending officer who violates the Fourth Amendment, but, even assuming that officers can be indirectly motivated by a penalty levied against the prosecutor whose case is weakened by the rule’s operation, in most instances had the officer not acted unconstitutionally the suspect would not even have been arrested and the policeman would not have “cleared” his case. On the other hand, even under the exclusionary rule, when an officer acts unconstitutionally, though a conviction may not ultimately result, he nonetheless makes an arrest and “clears" his case. So an officer’s choice often may be between on the one hand no trophy in the form of an arrest but no violation of the Constitution either, and, on the other hand, a cleared case but perhaps an unclear conscience about the methods required to clear it. The possibility of a conviction may be remote either way.161
In fact, in view of the remarkably low fraction of felony defendants who wind up in jail, experienced officers may well view a jail sentence that follows an arrest as a rare, random and unexpected occurrence. If so, the exclusionary rule will be simply immaterial to their conduct, which in any event is not predicated on much hope for eventual conviction and imprisonment of the offender.
Whether the rule in fact reduces the incidence of police misconduct is a matter of continuing empirical dispute; there is evidence that it does not, but it is probably fair to say that the question has not been definitively answered and probably never will be.162 And because the impact of the rule falls on the prosecutor, not on the policeman, it is hard to see why in theory the rule could be more than marginally effective. The government is not a monolith; in most jurisdictions the policeman and the prosecutor belong to separate bureaucracies. Actions taken against one may not even be effectively communicated to the other.
However uncertain is the rule’s efficacy in eliminating unconstitutional behavior by the police, it is clear that the rule is likely to discourage the type of internal disciplinary action by police supervisors that would be' far more effective in regulating police behavior than the rule itself. With the rule in place, any internal discipline of a police officer is sure to have the incidental effect .of sabotaging the prosecution’s case before it begins. A prosecutor armed only with evidence of dubious value because it is the fruit of a search of doubtful constitutional validity, may still be able to obtain a plea-bargained conviction on a lesser offense. But if, by disciplining the policeman, the government admits the unconstitutionality of the search, even this chance evaporates. While the rule is based on the assumption that disciplining the police is more important than chastising criminals, few police supervisors are likely to share this assumption. Effective internal discipline is thus shortcircuited. In sum, the rule’s value in reducing the incidence of unconstitutional police behavior is at best doubtful. At worst, the rule may actually be counterproductive.
Moreover, even assuming, as I am not prepared to do, that the rule is of some *1208marginal benefit in removing an incentive to police misconduct, at present its penalty is administered with a sense of proportionality reminiscent of those medieval penal systems that prescribed capital punishment for everything from pickpocketing on up. The rule falls mercilessly on evidence deemed to have been seized unconstitutionally, without regard for the gravity of the police misconduct or the seriousness of the crime of which the defendant has been charged. Even if the policeman’s actions were only marginally in violation of the Constitution despite his good faith while the criminal is guilty of rape and murder, still the evidence stays out. Such a disproportion would be regarded as barbaric if used to deter crime; ironically, employed to deter the police many apparently consider it “progressive.”
Perhaps the rule’s most serious flaw, however, is that it is available only to the guilty who may thereby escape conviction. An innocent citizen whose rights are infringed can receive no benefit from the exclusionary remedy. He must be a provably guilty criminal to take advantage of it.
C. Where Can We Go From Here?
With these long-recognized defects, it is hard to understand how the rule has survived. The reason, I think, is that the rule, with all its faults, has been perceived as the only remedy federal judges and justices could fashion unaided by the legislature or the executive. In the past the federal judiciary has been relatively powerless to set up effective deterrent mechanisms to check police abuses. So federal judges who took seriously their oath to uphold the Constitution may have felt compelled to grasp at the straw of the exclusionary rule to carry out their duty in what they perceived as the only way they could. Certainly the last refuge of the rule’s supporters has always been that better, more appropriate remedies historically have not been forthcoming from those in the coordinate branches of the government who do have the power to fashion more effective tools to deal with the problem of police abuse.163
I would argue that the existence of the exclusionary rule itself has retarded the development of alternative remedies by the legislative or executive branches. But whether or not I am correct in this judgment, as a result of recent decisions the federal judiciary no longer is dependent on the coordinate branches to fashion better remedies. More potent and effective measures are now at our disposal as a result of recent changes in the law.164 •
In particular, effective tort remedies in federal court could now be developed — and to some degree are already available — to check police abuses, and could be further strengthened by court decisions without legislative or executive assistance. The key here is the resurrection of 42 U.S.C. § 1983 for the redress of constitutional violations by state officials,165 coupled with the imposition of vicarious liability on state governmental units for the actions of their agents.166 Taken together, these developments in civil rights law provide not only a federal forum but a state pocket deep enough to assure adequate compensation for and deterrence of Fourth Amendment violations.
Other than the all-too-obvious faults of the exclusionary rule itself, there are several reasons why lawyers and courts interested in the vindication of Fourth Amendment rights should turn away from the exclusionary rule toward the development of effective tort remedies.
Most obvious is the fact that a tort remedy compensates the victim of a Fourth *1209Amendment violation, while the exclusionary rule acts solely as an ill-conceived deterrent to future violations whose windfall incidental benefits are made available only to those charged with crime. The exclusionary rule merely deters, and when that deterrence fails, as it almost always must, no compensation is forthcoming for the victims. An effective tort remedy not only deters, but also compensates the victim when and if deterrence fails to achieve lawful police conduct.
Second, the tort remedy has the advantage that it could depend on jury decision-making rather than judicial decisionmaking. Judges have been notably unsuccessful in their effort to create a body of principled and coherent rules on which the police can rely to determine the reasonableness of a search with or without a warrant under the Fourth Amendment. The circumstances under which searches are made vary too greatly and the number of relevant factors is too large to permit the “reasonable” search to be captured adequately in a few understandable and administrable rules. What is “reasonable” in one community at one time may not be “reasonable” in another community at another time. Juries drawn from the very community affected by both police abuses and criminal attacks could be expected to provide better and surely more popularly acceptable resolutions of Fourth Amendment cases, just as juries rather than judges traditionally have been expected to provide more accurate and more acceptable resolutions of disputes over what constitutes negligence in the multitude of concrete circumstances that arise. Just as with negligence actions, of course, constitutional tort actions decided by juries would be subject to the usual array of devices designed to control jury decisionmak-ing to ensure that it remains within the bounds of the rational and the lawful. Among other tools, jury instructions, directed verdicts and judgments notwithstanding the verdict, would be as available for constitutional tort actions as they are for negligence tort actions.
Verdicts by juries composed of peers drawn from the affected communities would not go unnoticed either by police officials or by their supervisors and would effectively deter police misconduct in a way the exclusionary rule will never do. Nor could the police as easily disparage the judgments of their fellow citizens as they can that of appointed judges. At the same time, we can count on juries composed of citizens who live in a community to understand the realities and dangers of life in that community better than judges may and more accurately to evaluate the conflicting claims of reasonableness and unreasonableness of the police and of the aggrieved subject of a search.
I do not underestimate the difficult questions of law, particularly in the area of damages, that must be answered before such a tort system could be considered well developed and mature. But the problems should be no moré difficult than those posed by the crush of exclusionary rule cases now clogging the courts. And while the exclusionary rule cannot ever be expected to work, a tort system aimed at the twin goals of reasonable compensation and deterrence might well provide a way out of our current Fourth Amendment difficulties. The time has come to replace the exclusionary rule and replace it with a more effective alternative. Both tasks are within the reach of judges and justices.167 There is no reason to wait any longer.
. 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).
. Further enlightenment may be swift in coming. Since we heard oral argument in this case, the Supreme Court has granted certiorari in two search and seizure cases involving containers. People v. Robbins, 162 Cal.Rptr. 780, 103 Cal.App.3d 34 (Ct.App.1980), cert. granted, 449 U.S. 1109, 101 S.Ct. 916, 66 L.Ed.2d 838 (1981); People v. Belton, 50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420 (1980), cert. granted, 449 U.S. 1109, 101 S.Ct. 917, 66 L.Ed.2d 838 (1981). The fact that Supreme Court action in these two cases is now pending underscores the extent to which our unnecessary pronouncements today are ill-advised.
. “[T]he district courts and courts of appeals should follow our practice, when issues of both retroactivity and application of constitutional doctrine are raised, of deciding the retroactivity issue first.” Bowen v. United States, 422 U.S. 916, 920, 95 S.Ct. 2569, 2572, 45 L.Ed.2d 641 (1975).
. Majority opinion (Maj. op.) at 1162-1164.
. 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).
. Id. at 542, 95 S.Ct. at 2320.
. For example, Prof. LaFave wrote at about the time of the events with which we are concerned here: “It is impossible to predict how the court would decide [a case like Sanders ].” 2 W. LaFave, Search and Seizure § 7.2, at 538-39 (1978). See the discussion in Part I below.
. Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 874 (1976) (“Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any ‘[r]epa- • ration comes too late.’) (citation omitted); United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974) (footnote omitted) (“the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved”); Elkins v. United States, 364 U.S. 206, 217, 80. S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960) (“The rule is calculated to prevent, not to repair. Its purpose is to deter— to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.”).
While the Court has often reiterated that the exclusionary remedy is not a right to which a defendant is entitled, if has also held that the exclusionary remedy is not available to a defendant whose own Fourth Amendment rights have not been violated. See, e. g., United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 2548, 65 L.Ed.2d 619 (1980) (“defendants charged with crimes of possession may only claim the benefits of the exclusionary rule if their own Fourth Amendment rights have in fact been violated”); Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978) (“it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the [exclusionary] rule’s protections”); Brown v. United States, 411 U.S. 223, 230, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). Moreover, courts will not exclude unconstitutionally seized evidence without an objection by the defendant or over his assent. Even when a search is “flagrantly illegal,” United States v. Payner, 447 U.S. 727, 729, 100 S.Ct. 2439, 2443, 65 L.Ed.2d 468 (1980), and “possibly criminal,” id. at 733, 101 S.Ct. at 2445, the Court has ruled the evidence obtained cannot be excluded if the defendant lacks standing. Id.
. Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 874 (1976) (“The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights.”); Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960).
. The chronology of events is important to what follows: (1) on 21 June 1977 the Supreme Court decided the case of United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); (2) on 27 November 1978 the appellant, Albert Ross, was arrested and his brown paper bag and red leather pouch searched, Brief for Appellee at 2; (3) on 9 February 1979 the district court held a pretrial hearing on Ross’s motion to suppress the evidence obtained from the search of his possessions, id. at 1; (4) on 21 March 1979, after a three-day trial, Ross was convicted, id. at 1-2; (5) on 20 June 1979 the Supreme Court decided Arkansas v. Sanders, 422 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).
. United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975).
. United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).
. Maj. op. at 1171.
. Id.
. See note 3 supra.
. See, e. g., Ashwander v. TVA, 297 U.S. 288, 346-48, 56 S.Ct. 466, 482-83, 80 L.Ed. 688 (1936) (Brandéis, J., concurring).
. Maj. op. at 1162-1164.
. 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975). For commentary on Peltier see 19 How.L.J. 159 (1976); 13 Am.Crim.L.Rev. 317 (1975).
. Maj. op. at 1162.
. 422 U.S. at 535, 95 S.Ct. at 2316 (citations omitted).
. The Court, id., cited Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d *11841199 (1967); Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); and Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971).
. 422 U.S. at 536, 95 S.Ct. at 2317 (quoting Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960)).
. Id. (quoting Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960)).
. Id.
. Id. at 539, 95 S.Ct. at 2318.
. Id. (quoting Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965)).
. Id. at 536, 95 S.Ct. at 2317 (quoting Elkins v. United States, 364 U.S. 206, 223, 80 S.Ct. 1437, 1447, 4 L.Ed.2d 1669 (1960)).
. Id. at 539, 95 S.Ct. at 2318 (quoting Michigan v. Tucker, 417 U.S. 433, 447, 94 S.Ct. 2357, 2365, 41 L.Ed.2d 182 (1974)).
. Id.
. Id. at 542, 95 S.Ct. at 2320.
. 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
. 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
. The government initially sought at the original pretrial suppression hearing to justify the search in Chadwick on the basis of the Carroll exception. United States v. Chadwick, 393 F.Supp. 763, 771 (D.Mass.1975). The district court, however, granted the defendant’s motion to suppress. Id. at 773. The government then filed a motion asking the district court to reconsider and to vacate its grant of the defendants’ motion to suppress, this time arguing that the search was justified as a search incident to an arrest. Id. at 773-75. The government abandoned its attempt to bring the search within the ambit of Carroll, and never again pursued the Carroll theory in the ensuing litigation. The auto search exception was not argued by the government at the circuit court level, United States v. Chadwick, 532 F.2d 773, 778-79 (1st Cir. 1976), nor at the Supreme Court level, United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977).
. See Maj. op. at 1162-1164, arguing that the opinion for the Court in Sanders “br[oJk|eJ no new ground” but rather “simply explained and applied doctrine welded in place since Chadwick.”
. See United States v. Chadwick, 433 U.S. 1, 3-5, 97 S.Ct. 2476, 2479-80, 53 L.Ed.2d 538 (1977).
. United States v. Chadwick, 393 F.Supp. 763 (D.Mass.1975).
. United States v. Chadwick, 433 U.S. 1, 6, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977).
. Id. at 14, 97 S.Ct. at 2485.
. Id. at 15, 97 S.Ct. at 2485 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964)).
. Id. at 11-13, 97 S.Ct. at 2483-85.
. See note 33 supra.
. United States v. Chadwick, 433 U.S. 1, 22-23, 97 S.Ct. 2476, 2489-90, 53 L.Ed.2d 538 (1977) (Blackmun, J., dissenting).
. Id. at 16-17, 97 S.Ct. at 2486-87 (Brennan, J., concurring).
. United States v. Tramunti, 513 F.2d 1087, 1104-05 (2d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
. United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc), aff'd sub nom. United States v. Aviles, 535 F.2d 658 (1976) (mem.), cert. denied, 433 U.S. 911, 97 S.Ct. 2979, 53 L.Ed.2d 1095 (1977).
. United States v. Issod, 508 F.2d 990, 993 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975).
. United States v. Evans, 481 F.2d 990, 993-95 (9th Cir. 1973).
. United States v. Stevie, 582 F.2d 1175 (8th Cir. 1978) (en banc), cert. denied, 443 U.S. 911, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979).
. United States v. Vallieres, 443 F.Supp. 186 (D.Conn.1977).
. Shingleton v. State, 39 Md.App. 527, 387 A.2d 1134 (1978); Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977), aff'd sub nom. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).
. United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977).
. 2 W. LaFave, Search and Seizure § 7.2, at 538-39 (1978).
. United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 2320, 45 L.Ed.2d 374 (1975).
. Provided, of course, that a district court or circuit court in the jurisdiction in which the police officer finds himself has not ruled on the question. Presumably, a police officer is entitled to rely on the decisions of the federal courts in his jurisdiction, regardless of the rulings of courts elsewhere.
. 595 F.2d 1247, 1254-55 (2d Cir. 1979), cert. denied, 444 U.S. 955, 100 S.Ct. 435, 62 L.Ed.2d 328 (1979). In Ochs Judge Friendly wrote for the court “we ... rest our decision on the ground that Chadwick did not impair Chambers .... ” Id. at 1255. The facts in Ochs, were, of course, not identical to the facts in the present case.
. Id. at 1262-63 (Meskill, J., concurring) (citations omitted).
. Maj. op.'at 1163 n.5.
. United States v. Dien, 615 F.2d 10 (2d Cir. 1980), aff'g on rehearing 609 F.2d 1038 (1979); United States v. MacKay, 606 F.2d 264 (9th Cir. 1979) (per curiam).
. 615 F.2d at 11.
. Id.; 606 F.2d at 265 n.2.
. For a succinct and useful summary of the law regarding the retroactive application of constitutional rulings, see 13 Am.Crim.L.Rev. 317 (1975).
. 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).
. Id. at 106, 92 S.Ct. at 355. An alternative formulation of the threshold test was provided by Justice Stewart in his dissent in Milton v. Wainwright, 407 U.S. 371, 381-82 n.2, 92 S.Ct. 2174, 2180, n.2, 33 L.Ed.2d 1 (1972) (Stewart, J., dissenting). According to Justice Stewart, to qualify for consideration for limitation to prospective effect only, a new rule must plainly overrule past precedents or at least disrupt a long accepted and widely relied upon past practice.
. 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
. Id. at 297, 87 S.Ct. at 1970.
. Desist v. United States, 394 U.S. 244, 251, 89 S.Ct. 1030, 1034, 22 L.Ed.2d 248 (1969).
. United States v. Peltier, 500 F.2d 985 (9th Cir. 1974) (en banc), rev’d, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).
. Justices Brennan, Douglas, Marshall, and Stewart dissented in Peltier.
. 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).
. United States v. Peltier, 500 F.2d 985, 989 (9th Cir. 1974) (en banc), rev’d, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975).
. 422 U.S. at 542, 95 S.Ct. at 2320.
. Id.
. United States v. Dien, 615 F.2d 10, 11 (2d Cir. 1980), aff'g on rehearing, 609 F.2d 1038 (1979).
. Maj. op. at 1163 n.5.
. Id. at 1162.
. 422 U.S. at 542, 95 S.Ct. at 2320.
. Id.
. Maj. op. at 1162.
. 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
. United States v. Dien, 615 F.2d 10 (2d Cir. 1980).
. 606 F.2d 264 (9th Cir. 1979) (per curiam).
. Lonnie James Sanders was subjected to search on 23 April 1976. Chadwick was not decided until 21 June 1977.
. United States v. Peltier, 422 U.S. 531, 535 n.5, 95 S.Ct. 2313, 2316, n.5, 45 L.Ed.2d 374 (1975).
. 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
. 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
. See United States v. Calandrella, 605 F.2d 236, 250-53 (6th Cir.), cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979); United States v. Cornejo, 598 F.2d 554, 556-57 (9th Cir. 1979) (per curiam); United States v. Stewart, 595 F.2d 500, 504 (9th Cir. 1979) (per curiam); United States v. Berry, 571 F.2d 2 (7th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978); United States v. Reda, 563 F.2d 510 (2d Cir. 1977) (per curiam), cert. denied, 435 U.S. 973, 98 S.Ct. 1617, 56 L.Ed.2d 65 (1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977) (per curiam). Contra United States v. Schleis, 582 F.2d 1166, 1171, 1173-74 (8th Cir. 1978) (en banc).
. Schleis v. United States, 433 U.S. 905, 97 S.Ct. 2968, 53 L.Ed.2d 1089 (1977).
. 582 F.2d at 1175 (Gibson, C. J., concurring).
. 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975).
. 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).
. Bowen v. United States, 413 U.S. 915, 916, 93 S.Ct. 3069, 37 L.Ed.2d 1038 (1973).
. United States v. Bowen, 500 F.2d 960 (9th Cir. 1974) (per curiam) (en banc).
. Bowen v. United States, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641 (1975).
. Seepp. 1184-1187 supra.
. E. g., United States v. Vento, 533 F.2d 838, 865-67 (3d Cir. 1976) (paper bag found in car); United States v. Tramunti, 513 F.2d 1087, 1104-05 (2d Cir. 1975) (suitcase on back seat of car), cert. denied, 432 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975); United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc) (suitcases in trunk of taxicab); United States v. Evans, 481 F.2d 990 (9th Cir. 1973) (footlocker in trunk of car). For discussion and collected cases see 2 W. LaFave, Search and Seizure § 7.2(e) (1978 & 1980 Supp.).
. Tamm and Robb, JJ., dissenting ante.
. MacKinnon, J., dissenting ante.
. 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
. See authorities cited note 95 supra.
. 442 U.S. at 771, 99 S.Ct. at 2597 (Black-mun, J., dissenting) (citations omitted).
. The opinion of the Court in Arkansas v. Sanders exempts from the warrant requirement containers whose “contents can be inferred from their outward appearance.’’ 442 U.S. at 764 n.13, 99 S.Ct. at 2593 n.13.
. For a recent discussion of the difficulties associated with consent searches see Comment, Consent to Search In Response to Police Threats to Seek or to Obtain a Search Warrant-Some Alternatives, 71 J.Crim.L. & Criminology 163 (1980).
. A jewelry box presumably cannot be opened without a warrant under the Sanders rule because it qualifies as personal luggage, while a glove box, an integral part of the automobile to which it is attached, comes within the Carroll exception.
. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
. Cady v. Dombrowski, 413 U.S. 433, 440, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973) (“this branch of the law is something less than a seamless web”).
. 442 U.S. at 766-68, 99 S.Ct. at 2594-95 (Burger, C. J., concurring in the judgment). See p. 1201, infra.
. See, e. g., Marshall v. Barlow’s, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1825, 56 L.Ed.2d 305 (1978); United States v. Chadwick, 433 U.S. 1, 9, 97 S.Ct. 2476, 2482, 53 L.Ed.2d 538 (1977); Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct, 367, 369, 92 L.Ed. 436 (1948).
. We pay other similar prices, whose direct relation to our own personal safety and welfare is more obvious, e. g., security searches at airports and entrances to public buildings. But all reasonable searches by authorities are directed at preserving the safety and welfare of us all, e. g., searches for guns and narcotics on the street, even the routine demand for displaying a driver’s license to keep unqualified drivers off the thoroughfares. The individual inconvenienced is only paying the price for the common (including his own) good.
. Arkansas v. Sanders, 442 U.S. 753, 770, 99 S.Ct. 2586, 2596, 61 L.Ed.2d 235 (1979) (Black-mun, J., dissenting) (“the additional protection provided by a search warrant will be minimal”).
. See, e. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973).
. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).
. See, e. g., Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925) (automobiles); Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967) (houses).
. Arkansas v. Sanders, 442 U.S. 753, 760, 99 S.Ct. 2586, 2591, 61 L.Ed.2d 235 (1979) (“One of the circumstances in which the Constitution does not require a search warrant is when the police stop an automobile on the street or highway because they have probable cause to believe it contains contraband or evidence of a crime.”). Unoccupied automobiles, however, may be treated differently. See Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035-36, 29 L.Ed.2d 564 (1971).
. Arkansas v. Sanders, 442 U.S. 753, 765, 99 S.Ct. 2586, 2594, 61 L.Ed.2d 235 (citation omitted):
We view, however, the seizure of a suitcase as quite different from the seizure of an automobile. In Chambers, if the Court had required seizure and holding of the vehicle, it would have imposed a constitutional requirement upon police departments of all sizes around the country to have available the people and equipment necessary to transport impounded automobiles to some central location until warrants could be secured. Moreover, once seized automobiles were taken from the highway the police would be responsible for providing some appropriate location where they could be kept, with due regard to the safety of the vehicles and their contents, until a magistrate ruled on the application for a warrant. Such a constitutional requirement therefore would have imposed severe, even impossible, burdens on many police departments. No comparable burdens are likely to exist with respect to the seizure of personal luggage.
. 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
. Id. at 136, 45 S.Ct. at 281.
. Id. at 144, 45 S.Ct. at 282 (quoting National Prohibition Act, ch. 85, tit. II, § 26, 41 Stat. 315 (1919)).
. 267 U.S. at 160, 45 S.Ct. at 287.
. 267 U.S. at 156-58, 45 S.Ct. at 286-87.
. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. 267 U.S. at 136-42, 45 S.Ct. at 281-82.
. Id. at 163, 45 S.Ct. at 288 (McReynolds, J„ dissenting).
. Id. at 158-59, 45 S.Ct. at 287.
. Id. at 153, 45 S.Ct. at 285.
. Id. (emphasis added).
. Accord Wilson, The Warrantless Automobile Search: Exception Without Justifícation, 32 Hastings L.J. 127, 131-32 (1980).
. Husty v. United States, 282 U.S. 694, 51 S.Ct. 89, 75 L.Ed. 740 (1931).
. Scher v. United States, 305 U.S. 251, 59 S.Ct. 174, 83 L.Ed. 151 (1938).
. 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
. The difficulties associated with consent searches are considerable. The suspect who consents to a search waives constitutional protections guaranteed by the Fourth Amendment. To be effective such waiver must be free and voluntary. In judging whether such a waiver is truly voluntary, courts look to “all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 249, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854 (1973)." In many circumstances courts have found that apparent consent was not effective. For example, police threats will vitiate consent. See, e. g., Waldron v. United States, 219 F.2d 37 (D.C.Cir.1955) (policemen threatened suspect’s eighteen-year-old wife that they would not be responsible for what might happen to suspect’s apartment should they be forced to get warrant); United States v. Campbell, 574 F.2d 962 (8th Cir. 1978) (officers threaten to ransack home if required to get a warrant). Consent is not effective if it is based on reliance on a policeman’s false assertion. E. g., Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931) (false claim to have had a warrant). Moreover, consent will not be valid if the suspect reasonably believed that he did not have any option but to consent. E. g., Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (no consent when search made pursuant to an invalid warrant); Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921) (consent invalid where extracted by “implied coercion” from suspect’s wife by federal agents who said they had come to search for violations of the revenue laws). Indeed, this court has noted that “true consent, free of fear or pressure, is not so readily to be found” when a suspect is confronting the police. Judd v. United States, 190 F.2d 649, 651 (D.C.Cir.1951). Most courts, however, do not find consent to have been vitiated when it is granted in response to police threats to obtain a search warrant. For citations and analysis of this problem see Comment, Consent to Search in Response to Police Threats to Seek or to Obtain a Search Warrant: Some Alternatives, 71 J.Crim.L. Criminology 163 (1980).
. See, e. g., Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
. Officers of the executive branch are immune from liability when their action is reasonable “in light of all the circumstances, coupled with good-faith belief.” Scheuer v. Rhodes, 416 U.S. 232, 247-48, 94 S.Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974).
. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (determination of the voluntariness of consent to an auto search is to be based on the totality of the circumstances).
. Arkansas v. Sanders, 442 U.S. 753, 765 n.14, 99 S.Ct. 2586, 2594 n.14, 61 L.Ed.2d 235 (1979).
. 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).
. Id at 11, 97 S.Ct. at 2483 (“The Government does not contend that the footlocker’s brief contact with Chadwick’s car makes this an automobile search____”). A well-known case book describes the automobile search issue as having been “sidestepped” in Chadwick. Y. Kamisar, W. LaFave, J. Israel, Modem Criminal Procedure 352 (5th ed. 1980).
. 442 U.S. at 766-68, 99 S.Ct. at 2594-95 (Burger, C.J., concurring in the judgment).
. See the opinions of Judges Tamm, MacKin-non and Robb ante.
. The Court itself noted this close connection between the acceptability of warrantless searches and the suspected presence of contraband some years later in its opinion in United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948), in which it pointed out that “[a]n automobile ... was an almost indispensable instrumentality in large-scale violation of the National Prohibition Act, and the car itself therefore was treated somewhat as an offender and became contraband.” Id. at 586, 68 S.Ct. at 224.
. Carroll v. United States, 267 U.S. 132, 155, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925) (‘‘Section 26 was intended to reach and destroy the forbidden liquor in transportation and the provisions for forfeiture of the vehicle and the arrest of the transporter were incidental.”).
. Id.
. Id. at 150-53, 45 S.Ct. at 284-85.
. 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).
. “[T]he premise that property interests control the right of the Government to search and seize has been discredited.” Id. at 353, 88 S.Ct. at 512 (quoting Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782 (1967)).
. Id. at 361, 88 S.Ct. at 516 (Harlan, J., concurring) (“My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”).
. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). Weeks was presaged by Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). Boyd, however, had strong Fifth Amendment overtones and in a case involving only the Fourth Amendment, Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575 (1904), the Court adhered to the common-law rule that a court will not consider the method by which competent evidence has been acquired.
. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Earlier in 1949 the Court had held in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), that the Fourth Amendment substantive rights are “implicit in ‘the concept of ordered liberty,’ ” id. at 27, 69 S.Ct. at 1361 (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937)), and therefore enforceable under the Fourteenth Amendment against the states. Id. at 27-28, 69 S.Ct. at 1361-62. Nonetheless, the Court quite reasonably concluded that the exclusionary remedy was not “an essential ingredient” of Fourth Amendment substantive rights. Id. at 29, 69 S.Ct. at 1362. In 1961 the Court abandoned that limitation, holding the exclusionary remedy applicable to the states in Mapp.
. E. g., Olmstead v. United States, 277 U.S. 438, 470, 48 S.Ct. 564, 575, 72 L.Ed. 944 (1928) (Holmes, J. dissenting) (“We have to choose, and for my part I think it a less evil that some criminals should escape than that the government should play an ignoble part.”); id. at 485 (Brandéis, J., dissenting) (“Crime is contagious. If the Government becomes a law breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”).
. E. g„ People v. DeFore, 242 N.Y. 13, 21, 150 N.E. 585 (Cardozo, J.) (“The criminal is to go free because the constable has blundered.”), cert. denied, 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784 (1926). Dean Wigmore put his opposition to the exclusionary remedy this way: “ ‘Titus, you have been found guilty of conducting a lottery; Flavius, you have confessedly violated the Constitution. Titus ought to suffer imprisonment for crime, and Flavius for contempt. But no! We shall let you both go free.... Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else.’ ’’
. The first eight amendments to the Constitution were held inapplicable to the states in Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) *1204243, 250, 8 L.Ed. 672 (1833) (Marshall, C.J.) (“Had congress engaged in the extraordinary occupation of improving the constitutions of the several states, by affording the people additional protection from the exercise of power by their own governments, in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”).
. See Wilkey, The exclusionary rule: why suppress valid evidence? 62 Judicature 215 (1978); Wilkey, A call for alternatives to the exclusionary rule: let Congress and the trial court speak, id. at 351, 88 S.Ct. at 511 (1979).
. The exclusionary remedy applies whether or not the officer involved acted in good faith. This is anomalous in view of the fact that an officer of the executive branch who acts in good faith is immune to civil liability. Thus, for example, a suspect whose innocence is later proved at trial cannot recover damages against the arresting officer if the arrest was based on probable cause. Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967) (“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”). Similarly, an officer is not liable for damages if he acts under a statute later held unconstitutional either on its face or as applied, provided at the time of his actions he reasonably believed the statute to be valid. Id. The rule generally is that officers of the executive branch are immune from liability whenever their actions are made in good faith and are reasonable in light of all the circumstances. Scheuer v. Rhodes, 416 U.S. 232, 247-18, 94 S.Ct. 1683, 1691-92, 40 L.Ed.2d 90 (1974). The immunity of executive branch officials for fhe consequences of their good-faith reasonable actions is predicated on the assumption that “it is better to risk some error and possible injury from such error than [for such officials] not to decide or act at all.” Id. at 242, 94 S.Ct. at 1689. As Justice White pointed out in his dissent in Stone v. Powell, 429 U.S. 465, 541-42, 96 S.Ct. 3037, 3074, 49 L.Ed.2d 1067 (1976): “If the defendant in criminal cases may not recover for a mistaken but good-faith invasion of his privacy, it makes even less sense to exclude the evidence solely on his behalf. He is not at all recompensed for the invasion by merely getting his property back. It is often contraband and stolen property to which he is not entitled in any event. He has been charged with crime and is seeking to have probative evidence against him excluded, although often it is the instrumentality of the crime. There is very little equity in the defendant’s side in these circumstances. The exclusionary rule, a judicial construct, seriously shortchanges the public interest as presently applied.”
. And to those in foreign common-law jurisdictions. Neither the English nor the Canadian legal systems have adopted the rule. Martin, The Exclusionary Rule Under Foreign Law— Canada, 52 J.Crim.L.C. & P.S. 271 (1961); Williams, The Exclusionary Rule Under Foreign Law — England, 52 J.Crim.L.C. & P.S. 272 (1961).
. About one third of federal defendants going to trial file Fourth Amendment suppression motions; most of these have formal hearings on these motions. Comptroller General of the United States, Impact of the Exclusionary Rule on Federal Criminal Prosecutions, Rep.No.GGD-79-45 (19 April 1979). Because most criminal justice is meted out by the states, and because state officers are frequently less well trained and effectively disciplined than federal officers, the true impact of the exclusionary remedy may be mostly at the state rather than the federal level.
. See generally L. Weinreb, Denial of Justice 71-86 (1977). A recent report under the headline “99% of Felony Arrests in the City Failed to Bring Terms in State Prison” in the New York Times provides a dramatic example of our current plight. The article explains that “[T]he 100,000 felony cases each year enter what the Mayor’s criminal justice coordinator, Robert G. M. Keating, describes as a ‘huge felony funnel,’ in which they must vie for limited prosecutorial and court resources.... [L]aw enforcement officials have decided to treat all but the most serious offenses as misdemeanors, more often than not by a plea agreement reaching during arraignment.” N.Y. Times, 4 Jan. 1981, Section 1, at 1.
. In New York City, “[T]he chance of a given felony arrest ending in a sentence to state prison is about 1 of 108, according to statistics compiled by the Police Department.” N.Y. Times, 4 Jan 1981, Section 1, at 1.
. The Supreme Court has said that it is constitutionally permissible to accept a guilty plea from a defendant who protests his innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
. Indeed, we can see this process at work in the case before us in which my dissenting colleagues have suggested that the Fourth Amendment does not protect privacy interests in some containers less sturdy than luggage. See opinion of Judge Tamm ante.
. E. g., Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960) (The exclusionary rule’s “purpose is to deter— to compel respect for the constitutional guaran*1207ty in the only effectively available way — by removing the incentive to disregard it.”).
. The empirical basis of the rule is the subject of extended and inconclusive debate. For a sample of the scholarly literature on this question see Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970); Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. Legal Stud. 243 (1973); Canon, Is the Exclusionary Ruie in Failing Health?, Some New Data and a Plea Against a Precipitous Conclusion, 62 Ky.L.J. 681 (1974); Comment, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
. See notes 155-56 supra.
. See note 160 supra.
. See, e. g., Kamisar, The exclusionary rule in historical perspective: the struggle to make the Fourth Amendment more than ‘an empty blessing,’ 62 Judicature 337 (1979).
. See, e. g., Wilkey, A call for alternatives to the exclusionary rule: let Congress and the trial courts speak, 62 Judicature 351 (1979).
. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
. Monell v. Dep’t of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
. Congressional action surely would be preferable. The congressional silence following Chief Justice Burger’s call for such legislation, Bivens v. Six Unknown Named Agents of Fed-erai Bureau of Narcotics, 403 U.S. 388, 411-27, 91 S.Ct. 1999, 2012-20, 29 L.Ed.2d 619 (1971) (Burger, C.J., dissenting), however, has been thundering.