Desist v. United States
Is it still good law? What later courts have actually done to this case.
Status
More on how this was screened
United States v. Johnson rejected Desist's selective prospectivity for new Fourth Amendment rules in nonfinal cases, and Griffith v. Kentucky extended that rejection to all new rules of criminal procedure on direct review. People v. Gordon separately declined to extend Desist's prospective-only approach to a state constitutional right-to-counsel rule. Other citing opinions applied Desist positively, discussed its dissents, reported these later Supreme Court developments, or used nearby treatment language for different authorities.
1,237 later cases cite Desist v. United States; 79 of those citations sat close to treatment language and were flagged for reading, and all of them have been read. Citations that did not sit near treatment language were not flagged and were not read one by one, so a court that weakened this case without using any of that language would not appear here.
Relying on Desist v. United States?
This page shows what later courts did to it. Ask about your specific facts and see whether it still carries your argument, with citations you can check.
Treatments
Overruled in Part
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The Supreme Court rejected Desist's selective-prospectivity approach for new Fourth Amendment decisions, holding that those decisions apply to every conviction not yet final.
United States v. Johnson · Supreme Court of the United States · filed
We now agree with Justice Harlan that “‘[rjetroactivity’ must be rethought,” Desist v. United States, 394 U. S., at 258 (dissenting opinion). ... To the extent necessary to decide today’s case, we embrace Justice Harlan’s views in Desist and Mackey. We therefore hold that, subject to the exceptions stated below, a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.
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The Supreme Court completed the displacement of Desist's selective-prospectivity methodology for cases on direct review, requiring every new criminal-procedure rule to apply to all nonfinal cases even when the rule is a clear break with the past.
Griffith v. Kentucky · Supreme Court of the United States · filed
The rationale for distinguishing between cases that have become final and those that have not, and for applying new rules retroactively to cases in the latter category, was explained at length by Justice Harlan in Desist v. United States, 394 U. S., at 256 (dissenting opinion), and in Mackey v. United States, 401 U. S. 667, 675 (1971) (opinion concurring in judgment). In United States v. Johnson, we embraced to a significant extent the comprehensive analysis presented by Justice Harlan in those opinions. ... We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a “clear break” with the past.
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Limited
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The court declined to extend Desist's preference for prospective application of exclusionary-rule decisions to an independent state constitutional right-to-counsel rule.
People v. Gordon · Supreme Court of New York, Appellate Division, Second Department · filed
Although the United States Supreme Court has stated that it favors prospective application for any decision amplifying the exclusionary rule (Desist v United States, 394 US 244, 249, supra), the Cunningham rule rests solidly and exclusively on State constitutional law (People v Cunningham, supra, p 207), and the courts of this State have “consistently exercised the highest degree of vigilance in safeguarding the right of an accused to have the assistance of an attorney at every stage of the legal proceedings against him” (People v Cunningham, supra, p 207).
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