AN ANALYSIS OP CRIMINAL PROCEDURE CASES BEFOitE

THE UNITED STATES SUPREME COURT (I96I-I968);

WITH EMPHASIS ON DISAGREEr^ENT AND DISSENT

by

WILLIAM R. DANIEL, B.A.

A THESIS

IN

GOVERNMENT

Submitted to the Graduate Faculty of Texas Technological College in partial fulfillment of

the requirements for the Degree of

MASTER OP ARTS

Approved

Accepted

August, 1968

?05 T3

No. ion

Cop-

ACKNOWLEDGET IENTS

I am deeply indebted to Professor J, Williani Davis

for his direction of this thesis and to the other members

of my committee, Professors '//illiam E. Oden, Ralph G. Jones,

and Idris R. Traylor, Jr., for their helpful criticism.

I also wish to express my appreciation to Mrs. J. D.

Young for her aid in the preparation of this manuscript.

To my wife, Barbra, I am sincerely grateful. Her

patience and confidence have helped to make this thesis

a reality.

ii

f

PREFACE

Glendon A. Schubert described the 1957 term of the

United States Supreme Court as a period of division and

dissent and suggested that such disagreement vould Increase

in future years.-^ He attributed the disagreement, expressed

in the form of dissenting opinions, to the new strength

given to the "libertarian" interests on the Court by the

appointment of Chief Justice Warren and Mr. Justice Brennan

to the Court.^ To a great extent, Schubert*s prediction

has been substantiated, for in the past eight years a sharply

divided Court has overturned many traditional concepts in

the attempt to protect the rights :i>f Individuals from abuse

by government.

This trend has been especially evident in the area of

criminal procedure. Beginning in 1961 the United States

Supreme Court initiated a trend which has extended the

protection afforded to individuals by the provisions of tho

Fourth, Fifth, and Sixth Amendments into areas .vhich had

previously been untouched, and into ar -as v/hich were pre-

•'•Glendon A. Schubert, Quantitativ? Analysis of Judicial Behavior (Lansing, Michigan, wilcnigan btate univer-^ity,

1959), p. 80.

2lbld.

iii

iv

vlously governed by flexible standards which tended to

uphold the procedures follov;ed by the prosecution at the

expense of the claims of defendants that tneir procedural

rights guaranteed by the Bill of Rights had been violated.

The past eight years have witnessed the incorporation of

several provisions of the Fourth, Fifth, and Sixth Anen dments

into tho scope and meaning of the Fourteenth Amendment and

a corresponding elimination of the distinction between state

and federal standards governing these areas. The net effect

of these recent decisions has been to place new restrictions

on state and federal lav/ enforcement officers and courts.

Certainly this trend does not reflect the unanimous

views of the nine Supreme Court Justices. More often than

not, such decisions carry with them dissenting opinions.

Not infrequently, four of the nine Justices have registered

their dissent from the decision of the majority. Dissenting

opinions indicate that there is a fundamental division among

the Justices on the Court. Mr. Justice Jackson's v/ords that

"Supreme Court Justices do not dissent per se, for a dissent

indicates that the dissenting Justice has been unable to

persuade the Court to adopt his reasoning," indicate that a

Supreme Court Justice does not register a dissent unless he

believes that the decision of the majority could lead to

mischievous consequences, ^

Perhaps dissenting opinions in criminal procedure cases

can be best e. plained in terms of an inherent ccnfllct wnich

characterizes each particular decision. Expressed in

abstract terms, this conflict concerns tne doctrine of indi­

vidual rights which serves ao t he foundation for our democratic

society and tjhe interest of society in the suppression of

crime. Specifically, the conflict centers around tne pro­

cedural rignts of individuals guaranteed by the Fourth,

Fiftn, and Sixth Araendraents to the Constitution of the United

States as opposed to the procedures employed by state and

federal courts and law enforcement officers in the attempt

to capture and pu:\ish those who violate the laws of society.

Due to the tv/o-sided nature of the conflict, dissenting opin­

ions are of t./o varieties. One type of dissent, expressed

most frequently by Mr. Justice Harlan, criticizes the majority

for overturning "time-honored" standards which have servc d

to protect individuals and which have best served 1;he

interest cf society in the suppression of crime. The other

type of dissent, expressed most frequently by ulr, Justice

Douglas, criticizes the majority for failure to adequately

protect individual rights, thus conceding the inability

^Ibid., p. Qk*

vi

of the Supreme Court and of the Bill of Rights to effec­

tively perform tne function for which they .vere created.

Dissenting opinions should not be overlooked in tne

analysis of Supreme Court decisions in a given area.

Dissents are especially important in a group of cases evi­

dencing a high frequency of marginal, or five-to-four,

decisions. This is especially true when one considers that

the appointment of one new Justice to the Supreme Court

could conceivably alter the course of such a group of cases.

Dissenting opinions are also important in that they may

serve as useful tools in the attempt to predict the course

of future decisions in a particular area.

Bearing in mind the importance of dissenting opinions,

this paper purports to analyze forty-three criminal proce­

dure cases decided by the Court betv/een 1961 and l^GQ,

placing emphasis on dissent and disagreement on the Court.

Due to the size of the task, this study has been limited to

four main areas: searches and seizures, the right to

assistance of counsel, the privilege against self-incrimina­

tion, 8-nd the use of confessions in court. The cases studied

have been divided into three classes: search and seizure

cases, considered in Chapter II;" "judicial process" cases,

involving claims that the accused's right to counsel or

privilege against self-incrimination has been violated

during some stage of the judicial phase of his prosecution.

vii

considered in Chapter III; and "investigatory" cases,

involving claims that interrogating officers have violated

the accused's constitutional rights. The concluding chap­

ter v/ill depart from the content analysis approach and ;/lll

graphically illustrate noticeable patterns in the cases

considered. This '/ill be accomplished tnrough the use of

scalagrams similar in construction to the model developed

by Glendon Schubert in his work. Quantitative Analysis of

Judicial Behavior. Througli the use of scalagrams, one can

detect patterns of dissent, and can then refer to 'the v/rltten

opinions of the cases scaled in order to pick out specific

points of agreement and disagreement among the justices

on the Court. Hopefully, by employing this process, one

v/ill be able to formulate an intelligent prediction con­

cerning the outcome of future decisions. The ultimate

purpose of this v/ork is, therrefore, to dete. mlne ho/ the

Court stands in relation to tne conflict, to determine how

each justice /ould go about solving the conflict, and thus

to determine ho v the Court /ill attempt to resolve the con­

flict in the future.

Eugene V. Rostov" warns that studies of this type

often tend to become partisan to one or more of the Jus­

tices, at the expanse of their general vle.v of the

viii

constitutional process. 1- Here no attempt has been made to

classify Justices as "liberals" or "conservatives", or

as "good" or "bad." The views attributed to the Justices

are based on their ov/n words expressed in their various

opinions in the cases considered. i/Vhenever the word "lib­

eral" occurs, it is used in the sense that a "liberal"

justice would tend to uphold the claims of defendants as

opposed to contentions of the "state."

^Eugene V. Rostov/, The Sovereign Prerogative; The Supreme Court and the Quest for Law. 4New Haven and London, Yale University Press, 1962), p.11.

CONTENTS

PREFACE ii

ACKNOV/LSDGKwIENTS viii

CHAPTER I. HISTORICAL BACKGR0U1\TD 1

CHAPTER II. SEARCHES AND SEIZURES 21

CHAPTER III. ASSISTAl^CE OF COUNSEL AND

SELP-INGiaMINATION - 69

CHAPTER IV. RIGHTS OP SUSPECTS 101

CHAPTER V. CONCLUSION ll|.5

BIBLIOGRAPHY I80

ix

LIST OF TABLES

Table 1. Supreme Court Vote: Search and Seizure Cases II4.7

Table. 2. Supreme Court Vote: Investigatory and Courtroom Procedure Cases l52

Table 2-A. Supreme Court Vote: Courtroom Procedure

Cases 153

Table 2-B. Supreme Court Vote: Investigatory Cases . 1^\\.

Table 3. Sympathy of the Justices for Defendants in Criminal Procedure Cases 163

Table 3-A. Sympathy of the Justices for Defendants in Search and Seizure Cases l6l\.

Table 3-B. Sympathy of the Justices for Defendants in Courtroom Procedure Cases l65

Table 3-G. Sympathy of the Justices for Defendants in Investigatory Cases 166

CHAPTER I

HISTORICAL BACKGROUND

Before the process of the analysis of the forty-

three criminal procedure cases is undertaken, a brief

historical analysis of the areas covered in this v/ork

should be presented.

Search and Seizure

The Fourth Amendment to the Constitution of the

United States reads:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no V/arrants shall issue but upon probable cause, supported by Oatn or affirmation, and particularly describing the place to be searched and tne persons or things to be seized.

This protection traces its ancestry back to the English

common-la-v doctrine that a man's home is his castle, and it

was included in the Constitution in response to popular

revulsion against "./rits of assistance." These instruments

were blanket search orders under which British customs agents

searched private homes at vlll in the hope of finding

smuggler! goods. The Amendimont denounces only unreasonable

searches and v/as traditionally construed in tho light of

what v/as deemed unreasonable at the time it was adopted,

and in a manner so as to conserve the public interest as

well as individual rights.-^

Tho landmark case in this area is Boyd v. United

States. Here the Court ruled that a subpoena, compelling

a defendant to produce goods, papers, personal effects, etc.,

in a federal Court amounted to a search, and as such, it v/as

an unreasonable search in that it led to compulsory self-

incrimination in a federal court. Thus the Court announced

that the privilege against self-incrimination and the protec­

tion against unreasonable searches and seizures v/ere closely

related. Aside from its specific holding, Boyd is important

in that it gives historical precedent to tne premise that

the Fourth Amendment protects a person's privacy, as well as

his property, from unreasonable intrusions by tne federal

government.

At common law, the usual remedy open to a victim of an

unreasonable search and seizure was to bring civil or criminal

action against the offending officer. Thus evidence seized

in an unreasonable search and seiaure could be used against

a defendant in court. Assuming that tne PoLirth Aiendment

should offer defendants in federal courts more orotection

^The Constitution Of The United States Of America: Analysis And Inter-retatTon, (./ashliig-uon; United States Governient Printing Of rice, 19^l\.)» P- 953.

^Boyd v. United States, ll6. U.S. 6l6 (I886).

3

than the return of illegally seized articles, the United

States Supreme Court developed the exclusionary rule in

Weeks v. United States.-^ The V/eeks exclusionary rule barred

the admission in a federal court of evidence which had been

obtained by an unreasonable search and seizure by federal

officers. As a justification for tne v/e eks rule, the Court

used its supervisary pov/er over the conduct of federal

officers and the lower federal courts.

The V/eeks exclusionary rule v/as limited to the use of

evidence illegally obtained by federal officers in federal

courts only. In V/eeks, the Court specifically ruled that

evidence obtained by state officers, acting solely in a

"state" capacity, and later turned over to federal agents

could be used against defendants in federal courts. This

ruling became known as the "silver platter" doctrine, and

was upheld in Burdeau v. McDowell.M- The Court did place

restrictions on this doctrine, however, ruling in Byars v.

United States^ that evidence obtained by an illegal search,

made by state officers v/lth federal participation, or even

in the absence of federal participation v/hen the purpose of

the search v,as to enforce tne laws of the United States, is

not admissible in a federal court over the objection of the

3vVeeks v. United States, 232 U. S. 323 (I91I4-) .

^ Burdeau v. McDowell, 256 U. S. i].65 (I921).

^Byars v. United States, 273 U. S. 28 (192?).

k defendant.

One of the most difficult problems facing the Court

in connection v/ith the Fourth Anendment has been to deter­

mine the Fourth Amendjnent requirements relating to probable

cause and reasonableness. The Fourth Amendment requires

that a "r/arrant shall not issue but upon probable cause."

The traditional construction given to this requirement has

been that probable cause exists when the facts and circum­

stances within the officers' knov/ledge would v/arrant a man

of reasonable caution in the belief that a crime has been,

or is being, committed.^

The Court also applied a pragmatic approach in the

effort to determine the Fourth Amendment requirement of

reasonableness. Basis to the idea of reasonableness has

been the assumption that all searches which fall v ithin tho

scope of a properly obtained and legally sufficient search

v/arrant are reasonable. Searches conducted in the absence

of a search warrant are generally reasonable when (1) they

are incident to a valid arrest, (2) when the officers can

show probable cause, (3) v/hen officers search a parked vehicle

and can show probable cause, and (I4.) v/hen the officers have

obtained the consent of a party for them to search his pro-7

perty. For the disposition of cases involving a search and

"Recent Develooments", Columbia Law Review, Vol. 63 No. 5, May, 1963, p. 958.

' Ibld.

seizure conducted without a warrant, the Supreme Court devel­

oped the formula in Carroll v. United States that "The

central issue in such cases is not whether it ./as reasonable

for the officers to have obtained a v/arrant, but v/hether the

search v;as reasonable." Generally, a search becomes unrea­

sonable v/hen, in the opinion of the Court, the interest of

society in the suppression of crime is outweighed by tne

interest of the individual in his property or privacy.9

The Fourth Amendment protects a person's books,

papers, effects, etc., from unreasonable searches and sei­

zures, but technological advances in the field of electronics

have posed a ne.v question related to the Fourth Amendment

which the Supreme Court has been forced to answer: does

the Foui'th Amendment govern the use of evidence obtained by

means of "electronic eavesdropping" in court? The first

such case to come before the Supreme Court was 01mstead v.

United States. Here the Supreme Court, over the objec­

tions of Justices Holmes, Brandeis, Stone, and Butler, ruled

that the Fourth Amendment does not bar the use in a federal

court of evidence obtained by "v/iretapping." The reasoning

behind the ruling was that the Fourth Amendment refers to

tangible articles, not to conversations. Tnus a telephone

^Carroll v. United .states, 267 U.S. 132 (1925). Q

"Recant Develo-ments", q_p. Cit., p. 959.

-^^OLmstead v. Un: ted States, 279 U.S. I1.38 (1928).

conversation did not amount to a "material thing protected

by the Fourth Amendment. The dissents in Olmstead presaged

the future, arguing about a right to privacy wnich deserved

Constitutional protection.

In 193 1* Congress enacted a revised version of the

Federal Communications Act which Included tne phrase:

, . . and no person, not being authorized by the sender, shall intercept any communications and divulge or publish the existence, content, substance, purport, effect, or meaning of such intercepted communications to any person,-*-'

In light of such legislation, the Supreme Court again con­

sidered the "v/lretapping" question in Nardone v. United

States.- 3 Here the Court barred the use of evidence obtained

by wiretapping in a federal court, holding that if federal

courts allowed the admission of such evidence, they would

become a party to a violation of federal statutes.

Concerning the use in federal courts of evidence.ob­

tained by other means of electronic surveillance not covered

by the statute, the Court developed the "physical intrusion"

doctrine. In a series of three cases, the Court, relying on

Olmstead, ruled that a search must involve actual trespass,

and a seizure must involve something tangible. In Goldman, v.

-• Jaime s George Jr., Constitutional Li nltations On Evidence In Criminal Gases, (Ann Arbor: Ins'titute Of Con­tinous Legal Education, 1966), p. 59.

12J 7 U.S.C. S 605 (I93I1-).

^^Nardone v. United States, 302 U.S. 379 (1937).

United States- M- the Court ruled that eavesdropping by means

of an electronic listening device placed in an adjoining

room did not constitute an unreasonable searcn and seizure;

and in On Lee v. United States^^ the Court ruled that evi­

dence obtained by a paid inforraer who had secretly recorded

a conversation between himself and the defendant, the conver­

sation having taken place at the home of the defendant, was

admissible in a federal court because the defendant had

invited the informer into his home; but in Silverman v.

United States,^" v/here police officers had driven a "spike

mike" into a hot air duct in a building v/all, and thus over­

heard conversations throughout the entire building, the

Court ruled that this "physical intrusion", distinguishable

from the situation in Goldman, amounted to an unconstitu­

tional violation of the com-nands of tne Fourth Amendment.

These decisions indicated that in deciding questions relating

to the use of evidence obtained by "electronic eavesdropping"

the Court v/ould consider the totality of tne facts and cir­

cumstances surrounding each individual case.

The questions considered up to this point have in­

volved searches and seizures conducted by federal officers

and the attempted use of evidence obtained in these searches

in federal courts. Not until 19 -9 i^ the Supreme Court

^^Goldman v. United States, 316 U.S. I29 (19[L2).

^^On Lee v. United States, 3I4.3 U.S. 757 (195^').

^^3ilverman v. United Staces, 365 U.S. 503 (I961).

8

consider a case in which the defendant in a state criminal

prosecution asiied the Court to apply the V/eeks exclusionary

rule to state prosecutions. In Wolf v. Colorado^'^ the Court

ruled that the Weeks exclusionary rule was not applicable to

state criminal prosecutions. In delivering the opinion of

the Court, Mr. Justice Frankfurter noted that the Fourth

Amendment protects every individual from arbitrary invasions

of privacy by police, and that the Fourteenth Amendment

affords protection to the privacy of individuals from inva­

sion by state police. He added, however, that the Fourteenth

Amendment does not subject state criminal proceedings to the

specific limitations of the Bill of Rights. After a lengthy

reviev' of the use of the 'A'eeks exclusionary rule in state

cases, he found that t.ie tv/enty states v/hicii had not adopted

the V/eeks rule afforded ample protection to the privacy of

individuals; therefore, in a state prosecution for a state

crime, the Fourteenth Anend aent does not forbid the admission

of evidence obtained by an unreasonable search and seizure.

The Supreme Court thus indicated that it ;;ould not interfere

with the decisions of state courts unless defendants hac'

been denied rights "fundamental to concepts of ordered lib­

erty." Rather than the specific provisions of the Fourth

Amendment, the Court -..ould thus apply the more flexible

"funds'.iental fairness" test, embraced by the Fourteenth

.-Amendment, to state searcn and seizure cases. Mr. Justice

^ ;./Q]_j; jy. Colore 10, 33G 'J.s. 25 (19V?) •

9

Douglas, joined by Justices Rutledge and l.Iurphy vigorously

dissented. He agreed that the Fourteenth Amendment protects

the privacy of individuals from invasion by state police,

and contended that the right to privacy was a right funda­

mental to concepts of ordered liberty. He argued that the

Fourth and Fourteenth Amendment right to privacy -.vere co­

extensive and that Fourth Amendment standards snould govern

the admissibility of evidence in state cases, otherv/ise,

state police would be allowed to invade the privacy of

individuals at their ov/n will.

For the next twelve years, defendants in state search

and seizure cases urged the Supreme Court to overrule ti.e

controversial V/olf decision. Gradtially, the Court began to

overturn some of the reasoning behind V/olf. For instance,

in Elklns v. United States^-^ the Court demolished the "sil­

ver platter" doctrine, holding that in a federal criminal

trial, evidence obtained by state officers in a search

v/nich, if conducted by federal offleeri, would constitute an

unreasonable search and seizure, is inadmissible in a federal

court. Thus the stage v/as set for Mapp v. Onlo.-'-

Assistance of Counsel

1-'' The Sixth Amendment to the Constitution of the United

States guarantees to an accused person the right to "have the

• Ell ns v. United States, 3o[i. U.S. 205 (1960).

^%app v. Ohio, 367 U.S. 6i|3 (I961) .

10

assistance of counsel for his defense." Designed originally

to assure the accused the presence of his own counsel, the

right has long since come to mean tne right to a court

appointed attorney if he cannot afford his o.vn lawyer.^^

The landmiark case here is Johnson v. Zerbst,^-^

Upon consideration of this case the Supreme Court handed

dovm tv/o important rules. One is that if the defendant is

not afforded the right to assistance of counsel in a federal

court, that court loses its jurisdiction to proceed with the

case. The other rule is tnat v/hile the right to counsel may

be waived by an accused person, that v/aiver should be both

clear and intelligently made. Thus the .Sixth Araendment

denies a federal court the ability to deny any defendant

his right to assistance of counsel unless he has intelli­

gently v/aived his right, and the trial judge must assume the

burden of determining whether the right has been intelli­

gently v/aived.

The advantages v/hich a defendant should enjoy in a

federal court, v/hether represented by counsel or not, were

2? clearly defined in Adams v. United States. The accused

must be av/are of-.the nature of the charges, the statutory

^The Constitution of trxO United States of America; Analysis and Interpretation, Op. Clt., p. 1009.

^^Johnson v. Zerbst, 30^. U.S. [j.58 (1938).

^^Adams v. United States, 317 U.S. 269 (191^2).

11

offenses included within them, the range of allowable punish­

ment thereunder, possible defenses to the charges, circum­

stances of mitigation thereof, and all other facts essential

to a broad understanding of the whole matter.

The v/ords of the Supreme Court concerning the right to

the assistance of counsel in federal courts have been so abso­

lute that there have been relatively fev/ cases involving such

a question. The few cases appearing prior to I961 deal with

fine points of the Federal Rules of Criminal Procedure gov­

erning the right to counsel in federal courts and need not be

considered here.^3 in general, hov/ever, the right to assis­

tance of counsel in federal courts is absolute and exists at

every "critical stage of a federal criminal prosecution,

beginning with indictment and lasting througn at least the

first appeal.^^

The Sixth Amendment guarantee.of the right to assis­

tance of counsel applied to federal prosecutions only.

Prior to Gideon v. v/ainv/right, ^ the has 1 s of the right in

state prosecutions rested in the due process clause of the

Fourteentn Amendment. For a time the Court held that due

process did net necessarily Impose on the states the specific

requiremonts of the first eight amendments; rather, the Court

- United States Supreme Court Reports, 9 L Ed 2d 1262 (1963), Annotation: "The Accused's Rignt To Coun el Under the Federal Constitution."

^ ^ I b i d .

25 Gideon v . V;ainwri^iht, 372 U.S. 355 (19^3) .

12

follov/ed the maxim that only those provisions of the Bill of

Rights v/hich were fundamental to a free society v/ere incor­

porated into the scope and meaning of the Fourteenth Amendment.

An important case dealing with the problem of the right

to counsel in state prosecutions was Powell v Alabama.

Here the Court ruled that in a capital offense prosecution,

where the defendant cannot employ counsel or conduct his own

defense, it is the duty of a state court, whether requested

to do so or not, to assign counsel for him as a necessary

requirement of due process of lav/.

For a time it seemed that the- Court had incorporated

the Sixth Amendment right to the assistance of counsel into

the Founteentii Amendment, but in Betts v. Brady ' the Court

ruled otherwise. This case differed from Powell in that the

defendant had not been charged v/ith a capital offense. A

bare majority of the Justices on the Court held tnat such

cases would be considered in light of the totality of the

facts and circumstances surrounding each case, for that which

may in one setting constitute a denial of fundamental fairness,

shocking to the universal sense of justice, may, in other

circumstances fall short of such a denial. Applying the

standards of fundamental fairness to the present case, tho

majority found that in all respects the trial nad been fair.

^^Powell v. Alabama, 287 U.S. [).5 (1932)

' Betts v. Brady, 316 U.S. I4.55 (19 4 )

13

Thus, in this one case, the failure of the trial court to

appoint counsel for the defense did not violate fundamental

concept of fairness so as to deny due process. Justice

Douglas, joined by Justices Black, Rutledge, and Murphy,

vigorously dissented, contending that the right to counsel is

an essential guarantee that a defendant will receive a fair

trial, and that as such, the Sixth Amendment guarantee of the

right to assistance of counsel should be incorporated into the

scope and meaning of the Fourteenth Amendnent.

Betts indicated that there was a division on the Court

concerning the ouestion of v/hether the right to counsel In

state prosecutions v/as absolute or v/nether the right depended

on the facts and circumstances surroimding each individual

case. Tho c?s £S decided by the Court from 191+2 to I963 invol­

ving tne right to counsel in state prosecutions reflect this

controversy. In each ca:e Justices Black and Douglas urged

the Court to incorporate the right to assistance of counsel

into tne Fourteentn Anendment.

Finally, in Gideon v. //ainv/r 1 ht, the Court overruled

Betts V. Bx ady, holding that the right to counsel is funda­

mental and essential to a fair trial, and the right to

assistance of counsel, safeguarded by tho Sixtn Amendment,

is also protected against state action by tne due process

clause of the Fourteenth i^mendnent. The Court also declared

that the ne'v rule v/as entitled to retroactive application.

Althouga the Goi: -t left open t.ie rju3:-.tlon of v/hctiier tiio

Ill

entire body of federal lav/, governing the right to counsel,

applicable to federal prosecutions, was now applicable to

state prosecutions* Subsequent decisions, considered in detail

in Chapter III, indicate that the emphasis in state cases in­

volving tne right to counsel has shifted from the Fourteenth

Amendment requirement of due process of lav/, to the specific

requirements of the Sixth Amendment,

Self-incrimination

The Fifth Amendment to the Constitution of the United

States reads in part, "No person . . . shall be compelled in

any criminal case . . . to be a v/itness against himself."

The clause has as its source the maxim that no m.an is bound

to accuse himself, nomo tentelar prodere, developed in Eng-

land in the early sixteentn century. The original doctrine

meant that a person ought not to be put on trial and compelled

to ansv/er questions to his detriment "unless he has first been

properly accused, i.e., by tne grand jury; buc tue idea, once

set into motion, gained headv/ay rapidly, especially after 1660,

v;hen it came to have attached to it most of its present day

corroliaries.'^^^ ^^e privilege against self-incrimination was

included in the Bill of Rignts in response to popular revul­

sion against certain "inquisitorial" practices employed in

continental court systems.

28 The C o n s t i t u t i o n Of Tne Uni ted S t a t e s Of America: Ana].;rsl3 and I n t e i ^ p r c t a t i o n , Op. C l t . , p . 953V

29^, . , " I o id .

15

Generally, the United States Supreme Court has given

the privilege against compulsory self-incrimination a rather

generous interpretation, in so far as it serves to protect the

rights of individuals in federal courts. Despite contentions

that criminals may hide under the privilege, the Supreme

Court has followed the assumption that the privilege against

self-incrimination is essential to concepts of a fair trial

and serves to protect the rights of the innocent as well as

the guilty.30 v/ithout going into specific details concerning

Supreme Court decisions related to the scope of the privilege

in federal courts, the scope and coverage of the privilege may

be briefly summarized as follov/s: A witness in any federal

legal proceeding v/hatsoever, in which testimony is legally

reopuired, may refuse to ans .er any question, his answer to

•vhich might be used against him in a future criminal proceed­

ing or .vhich might uncover further evidence against him. The

witness must explicitly claim his constitutional imnunity, or

he v/ill have been considered to have waived it, the judge pre­

siding over the proceeding being the final autnority concerning

the validity of tne waiver. The privilege exists solely for

the benefit of the witness himself, and may not be clal-ied for

the benefit of third parties. A statutory grant of immunity,

affording exemption from prosecution, penalties, and forfei­

tures, including prosecution in state courts, is broad enough

3^Robert E. Cusliman and Robert F. Cushman, Cases In C nst_itu'vi onal Law^ Secon" Ev ltion, (Ne.v York; Appleton-" Contury-Ci'crts, i-r 'f) , p. i+62.

l6

to displace the protection afforded by the privilege and to

compel a witness to testify. Consequently, disabilities,

less than criminal in nature, v/hich may be incurred by the

testimony thus extracted do not impair the constitutional

sufficiency of the immunity thus conferred,3^ Moreover, if

an accused person talies the stand in his own behalf, he must

submit to cross-examination; v/hereas, if he does not, trial

judges in federal courts are required to instruct the jury

that no unfavorable inferences may be drawn concerning the

failure of the accused to testify.3^

Despite the generous interpretation given to the privi­

lege against self-incrimination in federal cases by the

Supreme Court, the Court v/as reluctant to incorporate the

Fifth Amendment privilege into the Fourteenth Amendment, For

over half a century the ruling case in this area v/as Tv/ining

V. New Jersey.33 Here the Court held that the privilege

against self-incrimination v/as not one of the "privileges and

immunities" of citizens of the United States v/hich the states

may not abridge; furthermore, the privilege v/as not so funda­

mental to concepts of justice that it is automatically

3^Ullmann v. United States, 35o U.S. k^>- (1956). Jus­tices Black and Douglas dissented', contending that the privilog© against SGlf-lncrlmination should be beyond tne reach of Oonoi-ess.

3^The Constitution Of The United estates Of America: Analysis dmd Interpretation, Oo. Cijb., p. 93^.

33Twinlnr- v. New Jersey, 211 U.S. 78 (1908).

\

17

incorporated into the meaning of due process of law,"^^ Thus,

as in other areas related to criminal procedure, the Court

employed a "facts and circumstances" appoach in the disposi­

tion of state self-incrimination cases. This approach was

finally abandoned in Malloy v. Hogan,35 the starting point

for the analysis of recent self-incrimination cases in Chap­

ter III,

Confessions Involving Coercion

Confessions have been considered as primary sources of

information for about as long as crimes have been committed.

Those Y/ho follov/ed the Roman lav/ system maintained that a

confession is the "queen of all evidence"; traces of the idea

appear in early English common lav/, but exclusive reliance on

confessions became associated with despotic govemnent in the

eighteenth and nineteenth centuries.-^ Thus restrictions were

placed on the means by which confessions might be obtained and

the uses to /hich they could be put. These restrictions v/ere

based on the idea that coerced confessions were not reliable.

Thus efforts by the defense to prove coercion went to -the

matter of credibility of the confession, not to its admissi-

bility in court,- '

3^'he Twining rationale v/as reaffirmed in Adams on v. California, 332 U.S. i|.6l (l^k-l) .

3 vIalloy V. Hogan, 378 U.S. 1 (I96I1-).

36(^eorge, On. Git., p, 87.

' Ibld,

18

In the latter part of the nineteenth century, the

United States Supreme Court began to utilize constitutional

terms when coerced confessions were used in federal courts.

Finally, in Bram v. United States,3o the Court announced that

there was a constitutional basis for the exclusion of coerced

confessions in federal courts, the privilege against self-

incrimination. The Court ruled that in criminal trials in

the courts of the United States, v/henever a question arose

as to whether a confession v/as incompetent because it v/as

not voluntary, the case would be controlled by the Fifth

Amendment command that no person in any criminal case could

be compelled to be a witness against himself.

The Court broadened the basis for the exclusion of

confessions in federal courts when, in McNabb v. United

States,3" it was held that a confession is inadmissible in

a federal court if made during illegal detention due to the

failure of federal officers to promptly carry a suspect

before a committing magistrate, v/hether or not the confession

is a product of torture, c5-th-3r physical or psychological.

This rule v/as further explained in Mallory v. United 3tatesH-0

where the Court held that ai'resting officers might hold tne

defendant for routine booking procedures, and might even

3^Bram v. United States, l68 U.S. 532 (I897).

'3.9McNabb v. United States, 318 U.S. 332 (19b3).

^^Mallory v. United otates, 35I4-U.S. l|.l+9 (1957).

19

detain him for a short period of time v/hile they investi­

gated matters favorable to him, but otherv/ise, they must

produce him before a magistrate. Thus coercion and viola­

tion of Contressional policy both rendered a confession

inadmissible in a federal court.

Due process of law, as a constitutional basis for the

exclusion of confessions, first appeared as the Supreme Court

began to consider state cases. In Brown v. Mississippi^^

the Court ruled that physical torture, used to elicit a con­

fession from the defendant, denied him due process of lav/.

In the cases immediately follov/lng .Brown, the Court turned

its attention to maltreatment and protracted periods of

incommunicado detention. In all, the Supreme Court decided

about thirty-five confession cases betv/een the Bro/;n deci­

sion in 1936 and the Escobedo decision in I96I1-. ^ Because

the Court was concerned v/ith the "totality of the circum­

stances" in each case, there is no absolute pattern discern­

ible from these decisions. However, in almost all of the

cases, the defendant had been held Incommunicado from friends,

relatives, and counsel; in about one-third of them this v/as

in the face of a specific request for an attorney. In about

one-third of these cases, no v/arning was given to the defen­

dant regarding his constitutional rights. Protracted or

^ Brov/n v. Miss iso Ippi, 297 U.S. 278 (1936).

^^Escobedo v. Illinois, 378 U.S. [{.78 (19614-).

'\

20

relay questioning was evident in half of the cases. In

most instances the defendant was relatively young and unedu­

cated, or of limited intelligence. Where coercion v/as found,

it usually arose from protracted detention, denial of sleep,

denial of food, detention in special confinement facilities,

or v/hat was denominated as "illegal police procedure."^ As

these cases v/ere decided, it became evident that the point

of emphasis had shifted from the accuracy of tne statement to

the techniques used by the police to obtain the confession.

Then, in 19614., the Court began to impose new restric­

tions on the methods used by the police to gain evidence

against the accused. The reasoning behind this series of

cases, and the dissents to the reasoning, will be the sub­

ject of the analysis presented in Chapter IV.

In summary, a pattern can be detected in the earlier

Supreme Court declr-ions in criminal cases. In each area

considered, the Court distinguished betveen state and federal

cases, and v/as unwilling to incorporate specific provisions

of the Bill of Rights into the scope and meaning of the

Fourteentn Amendment. Thus the process of incorporation

marks a breaking point in the outcome of Supreme Court

decisions in criminal procedure cases and serves as a start­

ing point for the analysis presented in the folioving

chapters.

ll-3Goore;e, (.)£.. £.it,-> P. 90.

CHAPTER II

SEARCiSS AND SEIZURES

The year 1961 marks a significant breal ing point in

the interpretation given by the United States Supreme Court

to the commands of the Fourth Amendment. Traditionally, the

Supreme Court had treated state search and seizure cases as

though they v/ere governed by the due process clause of the

Fourteenth Amendment, rather than by the Fourth Amendment.

The Court announced in wolf v. Colorado that it v.ould

interfere with the decisions of state courts concerning the

validity of a state search and seizure only when an indi­

vidual had suffered an injustice out of keeping with concepts

of fairness fundamental to an ordered liberty. Thus the

exclusionary rule, fasnioned by the Court in V/eeks v. United

States, v/as not obligatory on the states. As far as federal

cases v/ere concerned, the Court developed tne premise that

the Fourth Amendment protects both the property and the pri­

vacy of individuals from unwarranted invasion by tne federal

government. Using this premise,, the Court concluded that

evidence obtained by federal officers in violation of the

- ./olf V. Colorado, 338 U.S. 25 (I9I4-9) . 2

;/eeks V. Uni ted . : ; ta tes , 232 U.S. 323 (191^ ) .

21

' \

22

Fourth Amendment could not be used against the defendant in

court, Tv/o requirements of the Fourth Amendment, "reason­

ableness" and "probable cause" were generally used to deter­

mine the validity cf a federal search and seizure, A search

became unreasonable when, in the opinion of the Court, the

interest of society in the suppression of crime was out­

weighed by the interest of the individual in his property or

privacy.3 A search and seizure could also be justified if

the officers involved could show probable cause. Generally,

probable cause existed v/hen the facts and circumstances

within the officers' knowledge, and of v/nich they had trust­

worthy knov/ledge, v/ere sufficient to warrant a man of

reasonable caution in the suspicion that a crime had been,

or was being com -.iitted. !- In determining the scope and

coverage of the Fourth Amendment, the ^ourt developed the

premise in Olmstead v. United States and subsequent decisions

that the Fourth Amendment protections v/ere applicable only

when federal officers had physically trespassed on tho pri­

vacy of the individual or had seized tangible objects.

Since I961, the Supreme Court has made the Fourth

Amendvient protection against unreasonable searches and

seizures applicable to the states. It has also overruled

OLmstead and has abandoned the "physical intrusion" and

3"Recent Developments", Columbia Law Review, Vol. 63, No. 5, i.iay, 1963, p. 959.

23

"tangible objects" doctrines. Presently, Fourth Amendment

standards of reasonableness and probable cause govern state

and federal searches and seizures. These standards apply to

"physical" searches and searches conducted through the use

of electronic listening devices, and the exclusionary rule

applies both to tangible objects and to conversations un­

covered througn the use of electronic listening or recording

devices. Tnis chapter v/ill be devoted to a case-by-case

analysis of these recent developments, with the emphasis

being placed on the dissents to the reasoning employed by the

Court in the disposition of each particular case.

The controversial "Tolf decision specifically held that

the V/eeks exclusionary rule did not apply to state prosecu­

tions. Thereafter, every appellant from a state conviction

called upon the Court to overrule V/olf. Finally, in Maop v.

Ohio,5 the United States Supreme Court incorporated the pro­

visions of the Fourth Amendment into the scope and meaning

of the Fourteenth Amendment, specifically ruling triat the

exclusionary rule v/as now applicable to state prosecutions.

Acting on information that a suspect in a bombing

incident might be hiding in Miss Mapp's apartment, Cleveland

police officers, without a search /;arrant, broke into the

apartment and forcibly searched it, despite the efforts of

Miss I.iapp to prevent such action. They found no boiibing

^Map-o V. Ohio, 367 U.S. 61 .3 (I961) .

suspect there, but they did find allegedly obscene mater­

ials, the possession of v/hich constituted a violation of Ohio

lav/. Miss Mapp was ultimately convicted for the possession

of obscene materials, and her appeal, based on the contention

that the officers had violated her Fourth Amendment right to

privacy, was denied by the Ohio Court of Appeals.

On certiorari, the United States Supreme Court re­

versed. Mr. Justice Clark, speaking for three members of the

Court, based his decision on the premise that the right to

privacy is basic to a free society and has a constitutional

basis in the Fourth Amendment. He concluded that such a

right "should be more than an empty promise and cannot be

revoked at the whim of the police." After a lengthy review

of cases based on tne reasoning behind the V/olf decision, he

concluded that Y/olf v. Colorado denied state citizens their

constitutional right to privacy and.that Wolf should there­

fore be overruled. As a safeguard of the rights of state

citizens, the v/eeks exclusionary rule should apply to state

prosecutions. In concurring v/lth the majority. Justices

Douglas and Black expressed the viev/ that the Fifth Amend­

ment privilege against self-incriminotlon which is closely

related to the Fourtn Anendment protection against arbitrary

intrusions on individual privacy should also be Incorporated

into the Fourto.enth Amendment.

^Mapp v. Onlo. 36? U.S., 6I1.3, 660, (I96I) .

25

Mr. Justice Harlan, joined by Justices PranV.furter

and V/hltaker, dissented on the ground that V/olf represented

sound constitutional doctrine and should not be overruled.

Harlan stated in part:

I believe that the V/olf rule represents sounder constitutional doctrine thaji the rule which nov/ replaces it. The reasoning of the majority ultimately rests on the unsound premise that because Wolf car­ried into the states as part of the concept of ordered liberty the concept of privacy underlying the Fourth Amendment, it follov;s that configurations of the Fourth Amendment are llkev/ise to be deemed a part of ordered liberty and, as such, are enforce­able against tne states. But for me, tills does not hold.7

Mr. Justice Stev/art also dissented on the ground that since

the controlling issue in the instant case snould concern the

constitutionality of the Ohio Obscenity Statutes, this was

not the proper time to consider the merits of V/olf v. Colo­

rado.^

Imm^ediately, speculation arose concerning the extent

of the nev/ Ivlapp rule. For Instance, v/as the enti e body of

federal law governing searches and seizures no// applicable

to the states, v/as the new rule entitled to retroactive

application, and v/ould the Fourth Amendment standards con­

cerning reasonableness and probable cause govern state sear­

ches and seizures? In subsequent decisions, tne Court

ans//ered these questions affirmatively.

' Mapp V. Onio, 367 U.S., b[\.3, 672, (I961) .

^Mapp V. Ohio, 367 U.S., 6i;3, 686, (I961) .

26

The Supreme Court had ruled in Nardone v. United

Stat039 that evidence obtained by federal officers in viola­

tion of federal statutes was not admissible in federal courts.

The controlling issue in the first state search and seizure

case to follov/ Mapp, Cleary v. Bolger, centered around

whether the Mapp rule barred the adjnission in state courts

of evidence allegedly obtained by state officers in violation

of federal statutes,

Bolger, a New York longshoreman, was suspected of

stealing articles off incoming ships. Federal Customs agents

took him into custody, and after several hours of interroga­

tion, obtained his consent for tnem to search his home. The

agents, accompanied by a member of the Nev/ York Waterfront

Comnission, a state agency, searched his home without a v/ar­

rant in violation of Rule 1 (a) of the Federal Rules of

Criminal Procedure. The officers found articles which had

been reported stolen from several incoming ships. A month

later, Bolger was arrested by New York officers and charged

with grand larceny. Before his trial, he sougnt and obtained

an injunction from a federal district court barring the ad­

mission of the articles and testimony by the state officer

relating to them as evidence. Cieary, the state officer,

appealed on the ground that the Injunction had been improvi-

dently issued.

9Nardone v. United States, 302 U.S. 379 (1937). 10 Cleary v. Bolger, 371 U.S. 392 (I963).

27

On certiorari, the Un3.ted States Supreme Court re­

versed the decision of the federal court. Mr. Justice

Harlan, speaking for five members of the Court, held that,

in the light of Mapp v. Ohio, and Nardone v. United States,

federal statutes would generally govern state searches and

seizures; hov/ever, in the instant case, there was no evidence

of the intent of the state officer to avoid federal require­

ments, or that the state officer knev/ at the time of the

search that federal statutes were being violated. Thus the

facts surrounding the case indicated that the federal court

had improvidently granted the injunction. Mr. Justice Gold­

berg concurred Aith the results solely because there v/as

substantial evidence that the state courts would have exclu­

ded the evidence,

Mr. Justice Douglas, joined by Chief Justice Warren

and Mr. Justice Brennan, dissented on the ground that the

evidence, v/hich was obtained illegally, should not be used

against the defendant in court. Douglas .vould have agreed

with the majority if the instant oase had presented only the

question of the use of evidence obtained in violation of the

Fourth Anendment; however, here was a flagrant violation of

federal statutes. The fact that the state officer was a

mere participant in the violation of federal law made no

difference. Mr. Justice Douglas stated:

It is no answer to say that the state officer v/as merely a non-participating witness, or that Oliver Twist v/as an innocent cnlld. . Tne result produced.

'\

23

viz., the Oliver Twist m.ethod of obtaining evidence in violation of federal rules is illegal and snould not go unchecked in state courts.H

Douglas thus contended that Mapp had overturned previous

rulings that evidence obtained by state officers in viola­

tion of federal statutes might be used in state courts. It

made no difference to him v/ho had obtained the evidence.

The controlling fact v/as that evidence had been obtained

illegally, and as such, v/as inadmissible in any court.

The votes of the individual justices in Cleary v.

Bolger set a pattern which generally holds true in the remain­

der of the state search and seizure - cases. Mr. Justice

Harlan, if he could not muster enough support to overrule

Mapp, would at least try to limit the scope of the new rule.

Mr. Justice Douglas v/ould handle state search and seizure

cases in the same manner as he would handle federal cases.

Apparently Mr. Justice Clark, v/ho nad uelivered the majority

opinion in MaP2_, would limit that decision to the exclusion

of evidence in state courts obtained in violation of the

Fourth Amendm.ent. Thus the Court v/as sharply divided con­

cerning the extent of the new Mapp rule, and it was clear

that the Court would use a pragmatic, case-by-case approach

in determining the extent of the- nev/ rule.

The Court took a step in the direction of equating

state and federal standards governing searches and seizures

^^Ibid,, 371 U.S., 392, I1-O7, (1963).

29

by ruling that federal standards would be used to fashion

a "hai nless error" rule in state search and seizure cases, 1^

Generally, a harmless error fuling implies that any error,

defect, irregularity, or variance from constitutional doc­

trine of statute law viilch may occur during the course of a

trial will be disregarded if it did not effect substantial

rights, A "harmless error" ruling is sometimes used by appel-

late courts to affirm the decisions of lower courts. - The

Supreme Court has never ansv/ered the specific question of

whether state appellate courts can constitutionally apply

harmless error rulings to cases involving federal constitu­

tional questions,

Pahy v/as arrested and convicted for defacing a public

building in that he had painted a swastika on a synagogue.

Officers had seized without v/arrant a can of paint and a

brush found sevoral blocks from the synagogue. The paint and

brush v/ere admitted as evidence over the objection of the

defendant. The Connecticut Supreme Court ruled that the trial

court had erred in admitting as evidence the paint and brush,

seized in violation of the Fourth Amendment, but since the

evidence v/as not prejudicial against tne defendant, the error

was harmless.

^^Fahy v. Connecticut, 375 U.S. 85 (I963).

^United States Supreme Court Digest, Vol. 17, (The Lav.yers' Co-operative Publlsning Company, 1959)? P. -6[L.

30

On appeal, the United States Supreme Court reversed.

Chief Justice barren, speaking for five members of the Court*

gave no opinion as to the constitutionality of state harm­

less error rulings in cases involving constitutional issues.

He indicated,, however, that federal standards would govern

harmless error rulings in all search and seizure cases, and

that judged by these standards, the admission of the evidence

in question was not harmless in that the evidence was pre­

judicial against the defendant,

Mr, Justice Harlan, joined by Justices Clark, Stewart,

and V/hite, criticized the majority for not ruling on the

constitutionality of "harmless error" and stated that the

Fourteenth .."jnendment does not deny the apolication of the

rule by state courts, Harlan also contended that the Court

should not have interfered witn tne ruling tnat the error

v/as harmless,^ The dissenters would thus allow state courts

to adjust to the new Mapp rule as they best savr..fit if they

did not deny defendants their constitutional rights estab­

lished by Mapp. On the other hand, the majority Indicated

that the Supreme Court v/ould not hesitate to interfere v/lth

tiie decisions of state coiu'ts v/hen, in tne opinion of the

majority, defendants were denied tneir Fourtn Amendment

rights.

^ -•ahy V. Connecticut, 375 U.S., 85, 95, (1963) .

31

Chief Justice V/arren, and Justices Brennan and Gold­

berg agreed to limit the scope of the Mapp rule when, in

Linkletter v. V/alker, and Angelot v. Fay, the Court refused

to grant retroactive application of the Mapp rule to cases

finally decided before that decision.-^^ In both cases peti­

tioners had sought, and were denied, writs of habeas corpus,

contending that in the light of Mapp v. Ohio their state

convictions, based in part on evidence allegedly obtained

in violation of the Fourth Amendment, should be overruled,

Mr. Justice Clark, speaking for seven members of the

Court, ruled in both instances that the U^yy rule v/as not

entitled to retroactive application. He voiced no opinion

as to v/hether the contested searches and seizures actually

violated tne requirements of the Fourth Amendment. His

decision v/as based on the assumption that a retroactive appli­

cation of the Mapp rule w ould impose an intolerable burden

on the judicial machinery of the states.

Mr. Justice Black, joined by Mr. Justice Douglas,

vigorously dissented in both instances. Black found that

the searches and seizures in both cases violated the commands

of the Pourtri Amednment. He contended that the Court had

violated its promise in Mapp that convictions based on

unconstitutionally procured evidence would find no sanctions

•^^Linkletter v. Vvalker, 38I U.S. 616 (1965), and Ano;elot v. Fay, Tdl U.S. b li (19^5) .

32

in the courts. Black stated in part:

This case should not be argued on the basis of whether judges make new lav/s or discover them. Linkletter, convicted by the state court through the use of un­constitutional evidence, is today denied relief by

• this Court because his conviction became final prior to the Mapp decision. Linkletter must stay in jail, while Miss Mapp, whose offense occurred after Link-letter^ s, is free. The different treatment between Miss Mapp and Linkletter points out at once the arbi­trary and discriminatory nature of the judicial con­trivance used to break the promise of Mapp that convictions based on unconstitutionally procured evidence shall find no sanction in the courts, by keeping people in jail who are iinfortunate enough to have their convictions finalized before June 19, 1961.1^

Mr, Justice Black dissented in Angelot v. Fay for the same

reasons expressed above,!'

Questions concerning the retroactivity of new proce­

dural rules reflect the conflict between the rights of indi­

viduals accused of crime and the right of society to enforce

its lav/s. In the two cases presented above, a majority of

the justices seem to sacrifice the procedur»al rights of

individuals whose convictions became final before the Mapp

rule was announced in favor of the judicial machinery of

state courts. Justices Douglas and Black, on the other hand,

contend that the Court should not attempt to lessen the bur-.

den on state courts at the expense of any individual v/ho has

been convicted through the use of unconstitutionally procured

evidence. Thus, if one person is allowed to go free because

^^Linkletter v. Walker, 38I U.S. 618, 61iO-i4.1, (I965) .

• ' Angelot v. Fay, 38I U.S. 65I4, 663, (.19o5).

33

evidence used against him was obtained by an illegal search

and seizure, then any other person v/ho has suffered the same

injustice should also be set free. The division betv/een

Justices Black and Douglas and the majority of the Court

concerning questions of retroactivity occurs whenever the

majority fails to grant retroactive application to new proce­

dural rules. This division v/ill be considered again in

connection with other subjects.

Since Mapp, evidence obtained in violation of the

commands of the Fourth Amendment cannot be used against

defendants in state or federal courts. The use of the exclu­

sionary rule is now an accepted remedy and is no longer a

source of controversy. The problem facing the justices in

each search and seizure case is to determine v/hether the

search and seizure in question met the Fourth Amendment

requirements of "reasonableness" and "probable cause."

Despite the objections of Mr. Justice Douglas, the

Court still employs the rather pragmatic premise that a search

and seizure becomes unreasonable v;hen the interest of society

in the suppression of crime is outweighed by the interest of

the individual in his property or privacy. The Court declared 18

in Ker v. California that Fourth .Amendment standards of

reasonableness were applicable to state search and seizure

cases. On the day Aollowing a purchase of marijuana from a

18 Ker V. C a l i f o r n i a , 37i4- ' J .S , 23 (1963) .

3!

known dealer by a police officer, police officers witnessed

an encounter between Ker and the dealer, but saw no trans­

fer of goods. They followed Ker but lost contact with him.

The officers, acting without a warrant and having informa­

tion that Ker v/as selling marijuana that might have been

obtained from the dealer, obtained a passkey to Ker's apart­

ment. They proceeded to the apartment, identified themselves

to Ker and his wife, and thoroughly searched the apartment,

finding several packages of marijuana tnere, Ker and his

wife were arrested and convicted of selling marijuana. The

California District Court of Appeals dismissed Ker's appeal,

holding that the search v/as reasonable in that it v/as inci­

dent to a valid arrest.

On certiorari, the United States Supreme Court affiroieci.

Eight of the justices agreed that Fourth Amendment standards

of reasonableness were applicable to state searcn and seizure

cases; thus the ultimate issue concerned tne admissibility

in defendants' trial of the marijuana seized at their nome,

Mr. Justice Clark, joined by Justices Black, V/hite,

and Stev/art, held that the search w^s incident to a valid

arrest and that the evidence v/as therefore admissible in

court. Mr. Justice Harlan agreed with the results, but ex­

pressed the view, as he did in Mapp v. Onio, that state

searches and seizures should be judged by the flexible

"fundamental fairness" test v/hich is embraced by the due

process claxise of the Fourteenth Amendment.

35

Mr, Justice Brennan, joined by Justices Douglas and

Goldberg and Chief Justice Warren, dissented on the ground

that the intrusion into defendants' home without any type of

a warrant violated the standards of reasonableness required

by the Fourth Amendment, Brennan insisted that police offi­

cers must announce their purpose and authority before breaking

into a home. The fact that the officers had acted without a

warrant would most certainly have rendered the evidence ob­

tained in the search inadmissible in a federal court. This

being the case, he insisted that, "Since Mapn has made the

guarantee of the Fourteenth .'knendment co-extensive with thoso

of the Fourth Amendment, v/e should pronounce precisely the

same judgment upon the conduct of these state officers,"1°

The dissenters argue that since the search v/as conduc­

ted under the authority of no warrant, and since the arrest

took place after the search; the search and seizure did not

comply with the requirements of the Fourth Amendment, Tne

majority, ho./ever, contended that tne officers had reason to

believe that a crime had been, or was being, committed;

therefore, the officers rightfully entered defendants' nome,

Mr, Justice Brennan based his dissent to some extent on the

assumption that similar conduct on the part of federal offi­

cers would have been declared illegal by the Supreme Court,

but the majority Indicated that the Court v/ould have reached

^^Ibid., 371- U.S. 23, 52, (1963).

36

the same decision even if federal officers had been involved

in the search and seizure.

The Supreme Court has long upheld the doctrine that

searches of the immediate premises of a valid arrest, in

order to discover the "fruits of crime", are reasonable with­

in the meaning of the Fourth Amendment, Prom time to time,

questions have arisen concerning exactly v/hat type of evi­

dence can reasonably be seized without a v/arrant as incident

PC)

to a valid arrest. In Warden v. Hayden the Supreme Court

held that items which were not the actual instruments of

crime, but which v/ere "mere evidence", could be seized v/ith­

out warrant as incident to a valid arrest.

Two cab drivers //ho had v/itnessed an armed robbery

followed the robber until he entered a dv/elling, and then

relayed the information to Baltimore police. Within minutes

the officers arrived at the house, gained entrance into the

house, and found Hayden, feigning sleep in the bedroom. They

searched the house and found a shotgun in tne bathroom and

clothes, fitting the description of those worn by the robber,

in the bedroom. Hayden was arrested and convicted of armed

robbery. At trial, he unsuccessfully sougnt to suppress the

admission of the shotgun and clothing as evidence. The

Maryland Supreme Court ruled that the shotgun had been pro­

perly admitted as evidence, but that the admission of the

20v/arden v. Hayden, 35 L.W. l\l\.23 (I967).

36

the same decision even if federal officers had been involved

in the search and seizure.

The Supreme Court has long upheld the doctrine that

searches of the immediate premises of a valid arrest, in

order to discover tne "fruits of crime", are reasonable v/ith­

in the meaning of the Fourth Amendment. From time to time,

questions have arisen concerning exactly v/hat type of evi­

dence can reasonably be seized v/lthout a v/arrant as incident

PO to a valid arrest. In Warden v. Hayden the Supreme Court

held that items v/hich were not the actual instruments of

crime, but v/hich v/ere "mere evidence", could be seized v/ith­

out warrant as incident to a valid arrest.

Two cab drivers who had v/itnessed an armed robbery

followed the robber until he entered a dwelling, and then

relayed the information to Baltimore police. Within minutes

the officers arrived at the house, gained entrance into the

house, and found Hayden, feigning sleep in the bedroom. They

searched the house and found a snotgun in tne bathroom and

clothes, fitting the description of those worn by tne robber,

in the bedroom. Hayden was arrested and convicted of armed

robbery. At trial, he unsuccessfully sougnt to suppress the

admission of the shotgun and clothing as evidence. The

Maryland Supreme Coui't ruled that the shotgun had been pro­

perly admitted as evidence, but that the admission of the

20warden v. Hayden, 35 L.W. y4.23 (I967).

37

clothing as evidence, v/hlcn it considered to be "mere evi­

dence", violated the commands of the Fourth Amendment.

On certiorari, the United States Supreme Court

reversed. Mr. Justice Brennan, speaking for six members

of the Court, held that all evidence found v/lthin the imme­

diate scene of a lav/ful arrest was admissible in a court of

law. Mr. Justice Fortas, joined by Chief Justice V/arren,

concurred v/lth the result, but did not agree that there was

no distinction between articles v/hich could be seized in

that they were mere evidence,

Mr. Justice Douglas dissented on the ground that

Hayden's right of privacy had been violated. After giving

a lengthy historical reviev/ of the rights of privacy, he

stated In part:

That there is zone which police cannot enter, v/hether in hot pursuit or armed v/lth a meticulously oorded warrant has been established by Boyd v. United States and Gouled v. United States. These cases nave been consistently and continuously approved.. I would adnere to them and leave v/ith the individual the choice of disclosing his personal effects, except for contraband and the like, to the police and keeping them a secret. The existence of this choice is tne very essence of tne right of privacy. Without it, tne Fourth and Fiftn Amendments are ready instruments of the police state,-, v/hich the Framers of the Constitution sought to avoid.'

Mr. Justice Douglas v/ould thus place stringent restrictions

on tne authority of ofi'icers to seize evidence without a

warrant. He would alio/ officers to seize only tnose articles

vhich could be cun idei'ea as uixe "instruments of crine".

^-Ibid., 35 L.V/. kl.93, lil[%, (I96Y).

38

weapons, stolen artices, etc., and the seizure of these

articles must be incident to a valid arrest.

Aside from the "mere evidence" issue, the question

arises concerning v/hy Chief Justice Warren and Mr, Justice

Brennan considered the search of Hayden's home to be inci­

dent to a valid arrest, after contending tnat tne searcn of

Ker's home was not Incident to a valid arrest. The circum­

stances surrounding the two searches were similar. The

officers had acted without a v/arrant in both instances, and

in both instances the search occurred before the arrest v/as

made. Appsirontly, their different treatment of the two cases

v/as based on the sufficiency of the information possessed by

the police officers. The officers who had arrested Ker

entered his home, not knov/lng vhether the/ v/ould be able to

uncover evidence sufficient to justify an arrest. On the

other nand, the officers wno arrested Hayden .vent to the

house relying on the Information given to them by t.vo eye­

witnesses tnat t-ie man v/ho had cotmnltted a robbery had entered

that particular dv/elling only a fev/ minutes beforehand.

Thus, the ofi'icers v/ere reasonably sure that a lawfu.l arrest

could, and would, be made.

In one instance, the Supreme Court see/aingly abandoned

the "tlT.ne element" as a test of reasonableness .^2 Cooper v/as

arrested and convicted for selling heroin. His conviction

^^Cooper V. California, 35 L.V/. 1|209 (196?) .

39

rested in part on evidence obtained v.lthout a warrant in a

search of his car v/hich had been impounded by the police.

The search v/as conducted two weeks after Cooper's arrest.

He sought, unsuccessfully, to suppress tne evidence obtained

from the search of his car. The California Supreme Court

ruled that the admission of the evidence violated the Fourth

Amendment standards of reasonableness, but that the admission

of the evidence constituted a harmless error.

On certiorari, the United States Supreme Court vacated

the decision of the California Supreme Court. Mr. Justice

Black, speaking for five members of the Court, ruled that the

search was reasonable because the police had lavvfully im­

pounded Cooper's car. The principle underlying the decision

was the assumption of Carrol v. United States 3 that the

important cuestlon is not v/hether it v/as reasonable for the

officers to have obtained a warrant, but whether the search

was reasonable. Mr. Justice Douglas, joined by Clef Justice

Warren, and Justices Brennan and Fortas dissented on the

ground that the search v/as not incident to a valid arrest;

therefore, the officers should have secured a search v/arrant

before searching the car. Douglas stated in part:

If cars impounded by the.police can be searched v/ithout a warrant, the precincts of the individual are invaded, and the barriers to privacy are breached. Unless the search is incident to a valid arrest, I

^3carroll v. United States 267 U.S. 132 (1925).

i+0

would insist that officers must obtain a warrant before they search a man's car, just as tney mu-t before they search his home.^

For the dissenters, the fact that the officers waited two

weeks before they searched the car, overruled any contention

that the search was incident to a valid arrest. The majority,

however, based its ruling on the evident fact that the offi­

cers could have lav/fully searched the car at any time that

it v/as legally in tneir custody.

The three cases presented above illustrate tne prag­

matic approach u-ed by tne Court concerning questions of

reasonableness, 'For instance, searches of a defendant's

home v/ithout a v/arrant are not unreasonable per se, for

they may be incident to a valid arrest, even though the

search occurred before the arrest took place. Also, a

warrantless search of vehicles may, or may not, be reason­

able, depending on the particular facts surro^ondlng each

case, Mr. Justice Douglas, and to a lesser extent. Chief

Justice V/arren, Mr, Justice Fortas, and Mr. Justice Brennan,

tend to condemn all searches conducted v/ithout a warrant. Mr.

Justice Douglas contends that all such searches are unreason­

able unless they are incident to a valid arrest, and even tnen

restrictions should be placed on the type of articles that

officers may seize.

^^Cooper v. California 35 L..7. 1|209, 1|.213, (1^67).

The Court has also used a rather pragmatic approach

in the attempt to fasnion Fourtn Amendment standards of

probable cause. The Court has ruled that the Fourth Amend­

ment standards governing probable cause are applicable to

state prosecutions."'^ Houston police obtained a warrant to

search Aguilar's home, stating in the affidavit that they had

reliable information from a credible source that gave them

reason to believe that Agullar was engaged in the illegal

selling of narcotics. Armed with the warrant, they forced

their v/ay into Aguilar's home and seized him and a quantity

of heroin. Agullar unsuccessfully sought to have the heroin

suppressed as evidence, and the Texas Court of Criminal

Appeals affirmed his conviction.

On certiorari, the United States Supreme Court re­

versed. Mr. Justice Goldberg, speaking for five members of

the Court, first ruled that Fourth and Fourteenth Amendment

standards governing probable cause v/ere tne same. Judged by

these standards, the affidavit in question v/as insufficient

to justify probable cause, in that there was no evidence to

shov/ that the informer actually knev/ that narcotics v/ere

present in the defendant's home. Mr. Justice Harlan reluc­

tantly concurred v/ith the result, stating that except for IVer

V. California, he would affirm the decision of the lov/er

courts.

^^Aguilar v. Texas, 378 U.S. 108 (1961|_) .

^. »*.

kz Mr. Justice Clark, joined by Justices Stev/art and

Black, criticized the majority for substituting a rigid

academic formula for the unrigld standards set forth by the

Fourth Amendment. He argued tnat the sufficiency of reason­

ableness and probable cause depends on the facts and circum­

stances of each individual case. In his opinion, the

information justifying probable cause should be sometning

more than wholly unsupported suspicion, but less than .vould

justify condemnation. His rationale for determining the

sufficiency of probable cause v/as that, "Probable cause exists

when the facts and circumstances v/lthln the officers' knov/-

ledge, and of wnich tney have reasonably trustworthy

information, are sufficient in themselves to v/arrant a man

of rea3onable caution in the belief that a crime has been,

or is being, corrmiitted. " Such a conception of probable

cause would serve to protect the privacy of individuals, but

would give fair leeway for enforcing the la s of our land.

Since the rules govornlng probable cause are practical, not

technical, the decision of the majority would tend to obstruct

the administration of justice throughout tne land. Apparently

the majority would require that informers must have been an

eye to the "crime" in order to justify co.itentlons of prob­

able cause based on Information given to police by the

inforners. The dissenters did not object to the contention

^^Ibid., 378 U.S. 108, U8, (I96LL).

1+3

that state and federal standards governing probable cause

were the same. Their objections .vere based on the assumption

that the majority had created one rigid formula to be used

in the disposition of probable cause issues.

The fears of the dissenters in Agullar v. Texas v/ere

unfounded, however, for in United States v. Ventresca, ' the

Court ruled that affidavits should be read in a "commonsense"

rather than in a "technical" manner. Ventresca v/as arrested

and convicted for the illegal operation of a still. Evidence

had been obtained in a search and seizure under a warrant

issued on the basis of an F.B.I, agent's detailed report. He

stated in the affidavit that his information v/as based on

personal observation, information received from other govern­

ment investigators, and detailed reports received by the

affiant describing the results of investigations conducted

by revenue agents. The appellate court reversed Ventresca's

conviction, holding that tne affidavit was not sufficient to

justify probable cause in that it failed to indicate v/hich

of the allegod facts were hearsay, and v/hlcn of the facts

were v/lthln the afi'iant's ov/n knov/ledge.

On certiorari, the United States Supreme Court re­

versed, Mr. Justice Goldberg, speaking for seven members of

the Court, held tnat if read in a com^ionsense, rather than in

a technical manner, the affidavit showed ample facts to justify

^^unlted States v. Ventresca, 38O U.S. lOP. (19^5).

probable cause. Mr. Justice, Douglas, joined by Chief Jus­

tice Warren, dissented on the ground that standards of

probable cause must be defined in a meticulous manner, and

that judged by these standards, the failure of the agent to

properly identify the source of his infoi^ation rendered his

contention of probable cause as insufficient. Douglas stated

in part:

The Fourth Amendment standard of probable cause is a strict standard; v/hat the officers say does not necessarily carry the day; and probable cause is v/lthln the keeping of the magistrates, who in turn are bound by tne Constitution. Unless the Constitutional standards, of probable cause are defined in m.eticulous v/ays, the discretion of tne police and magistrates will be absolute. I believe, therefore, that the failure of the officer, thougn his affidavit was long and detailed, to T)roperly identify tne source of his information violated the standards of probable cause embraced by the Fourth Amendment, and I ./ould affirm the decision of the Court below.^^

Justices Brennan, Goldberg, and V/hite treated Ventresca

differently from Agullar due to the fact that a commonsense

reading of the affidavit in question indicated that, at least .

some of the information was within the officer's ov/n knowledge.

The decision of the majority reflects the opinion that the

standards of probable cause are products of social policy and

should not be governed by narrow procedural interpretations.

The dissenters contend that standards of probable cause should

be Interpreted strictly in order to keep them out of the

^^Ibid., 380 U.S. 102, 120, (I965).

h5 prejudicial hands of police officers.

A similar viev/ had been expressed in Rugendorf v.

United States,^9 when the Court held that the prosecution

does not have to identify the name of the informer in every

situation. Rugendorf was tried and convicted in an Illinois

Federal District Court for knowingly and willingly receiving

stolen goods after their transportation in interstate commerce.

ka informer had told F.3.I. agents that a group of furs simi­

lar to those v/hich had been stolon from a Birmingham store

v/ere hidden in Rugendorf s basement. Relying on this informa­

tion, the agents drafted an affidavit and secured a search

v/arrant. The agents then searched the basement and found

some of the furs v/hich had been stolen. Rugendorf appealed

his conviction, stating that the failure of the Government to

disclose the identity of the Informer denied him the oppor­

tunity to challenge the sufficiency of the affidavit, but

the appellate court affirmed his conviction.

On certiorari, the United States Supreme Court

affirmed. Mr. Justice Clark, expressing the views of five

members of the Court, held that defendant's claim, requesting

the disclosure of the name of the informer, was not maintain­

able in that it v/as not properly raised in the trial court,

and the defendant failed tovdevelop criteria necessitating

disclosure.

29Rap,endorf v. United States, 376 U.S. 528 (I963).

1+6

Mr. Justice Douglas, joined by Justices Brennan and

Goldberg, and Chief Justice Warren, dissented on the ground

that even though the defendant may not have properly moved

for disclosure at his trial, that court should have noticed

the error. This is so because the disclosure of the identity

of the informer is essential to tne defendant's right to chal­

lenge the validity of a v/arrant. Douglas stated in part:

The purpose of the Informer's privilege la the furtherance of the protection of the public Interest in effective law enforcement; however, there are times v/hen tine privilege must give v/ay. V<nen the disclosure of the Informier's identity is relevant and helpful to the defense of the accused, or it is essential to the determination of a cause, the privilege must give way. In those cases the trial court may require disclosure, and if the government refuses to disclose tne identi­ty of the informer, dismiss the action. It is difficult to imagine a clearer case than tnis for the application of this conception.3^

Again, this dissent reflects the attempts of Mr. Jus­

tice Douglas to create strict, moticulous formulas for the

disposition of search and seizure cases. The majority of the

Court, however, prefers a more pragmatic approach as in the

instant case, v/here the defendant should have attempted to

provt; in the trial court that the disclosure of the identity

of the Informer was relevant to nls defense.

The Court indicated in the decisions presented thus

far that the sufficiency or information necessary to justify

claims of probable cause would be determined by the facts and

3Qibid., 376 u. s. 528, iki, (196I4.).

1+7

Circumstances surrounding each case. In Bock v. Ohio,31

however, the Court attempted to set minimum requirements for

probable cause. In this instance the Court ruled that prob­

able cause cannot be based on knov/ledge of the physical

appearance of the suspect, and knov/ledge that he has a record

of previous convictions for the crime of which he is sus­

pected.

Beck Was stopped by Cleveland police officers, v/ho

then, without a warrant, searched his car, but found nothing

of interest. They arrested Beck, and searcned xiis person at

police headquarters, finding a number of clearinghouse slips,

the possession of v/hich constituted a violation of Ohio lav/.

Ov^r Beck's objection that the admission of the clearinghouse

slips violated his protection against unreasonable searches

and seizures, he was convicted for the illegal possession of

the slips. The Ohio Supreme Court affirmed Beck's conviction.

On certiorari, the United States Supreme Court re­

versed, Mr. Justice Stev/art, speaking for five members of

the Court, ruled that the only knov/ledge the officers had to

rely on v/as the knowledge of Beck's physical appearance and

the fact that Beck had a record of previous convictions for

violation of the Ohio Clearine:house la^. This information

v/as not sufficient to justify probable cause; the search v/as

not incident to a valid arrest, and the clearinghouse slips

should have been suppressed as evidence.

^•^Beck V. Ohio, 379 U.S. 89 (I96I1-) .

1+8

Mr. Justice Clark, joined by Mr. Justice Black, dis­

sented on the ground that the record v/as sufficient to show

probable cause. He based his decision on the decision of

the lower courts in tne instant case. Clark stated:

Vhen the highest court of a state, after detailed and earnest consideration, determine the facts, and they are reasonable supportable, I would let them stand. I would also give the same respect -to findings of probable cause by United States District Courts, if they //ere supported by United States Courts of Appeals.32

The fact that the Supreme Court had overruled the "reasonably

supportable" findings of a state appellate court could lead to

a situation in v/hich the United States Supreme Court v/ould be

obligated to determine the facts of every search and seizure

case to come before state appellate courts, Mr. Justice

Harlan dissented, expressing the viev/ that the record, wnile

not free from all doubt, v/as sufficient to carry the day

for the state.33

The dissenters contend that the Supreme Court should

not construe the facts of a given case differently from the

construction given to them by lower courts. The majority

insists that it is the duty of the Court to examine the facts

of each case independently of the rulings of lower courts.

Recently, the Court has ruled that an eye v/itness re­

port is sufficient to justify claims of probable cause.3M-

^^Ibid., 379 U.-. 89,99, (I96I1).

33ibid., 379 ^'.S. S9, 103, (l bli).

3l|-..icCray V. Illinois, 35 L.W. l|-?:6l (I967) .

1+9

Police officers were told by an accuaintance of one of the

officers that McCray was selling narcotics and that he was

presently in a specific locality. They proceeded to the

named location and found McCray there. They arrested nim and

searched his person, finding a packet of heroin. Before his

trial, he sought to have the heroin suppressed as evidence,

contending that the search without a v/arrant and the failure

of the officers to disclose the identity of the informer

violated his Fourth Amendment privileges. The trial court

denied his motion and convicted him of possessing and selling

narcotics. 'The Illinois Court of Appeals affirmed his con­

viction.

On certiorari, the United States Supreme Court affirmed.

Mr. Justice Stev/art, speaking for five members of the Court,

held that the officers were acting on sufficiently reliable

information as to justify their claim of probable cause.

The search, being incident to a valid arrest, violated no

commands of the Fourth Amendment,

Mr, Justice Douglas, joined by Chief Justice V/arren,

and Justices Brennan and Fortas, dissented on the ground that

the failure of the prosecution to produce the informer in

court cast serious doubts as to the claim of probable cause.

As he had argued in Rugendorf, Mr. Jvistice Douglas again

argued that there is no way to test the reliability of an

informer unless he is brought before the trial court for

cross-examination. To rule otherwise is to "leave the Fourth

30

Amendment in the custody and at the tender mercy of the

police, and thus to encourage arrests without v/arrants. "35

Such a situation is incompatible wjth the commands of the

Fourth Amendment, and if the Fourth Amendment is to remain a

vital force in our society, the entire momentum of criminal

law enforcement should be i.reclsely in the opposite direc­

tion.

According to Justices Stewart and White, this case

differed from Beck and Agullar in that the police had

received an eye-witness report from a reliable Informer.

Tnis fact fulfilled the Fourth Amendment requirements of

probable cause. Since the Fourth imiendment requirements were

met, it v/as not necessary to produce the informer in court.

The dissenters place little stock in "eye-witness" reports.

They v/ould require informers to appear in court, thus giving

the d efense a chance to challenge the reliableness of the

informer, and thus the claim of probable cause.

The center of controversy involving questions of

probable cause usually concerns the amount and type of infor­

mation which would justify probable cause. Generally, tne

Court has employed Mr. Justice Clark's formula, stated in

his dissent in Agullar v. Texas," that information justifying

probable cause should be more than v/holly unsupported sus­

picion, but something less than would justify condemnation.

This flexible approach allov/s the Court to consider t o facts

3^lbid., 35 L.W. 1L261, 1^66, (1967).

51

and circumstances surrounding each individual case, to weigh

the facts independently of tne rulings of lower courts, and

to make its decision accordingly. Apparently, information

sufficient to justify probable cause must be based on eye­

witness reports, rather than mere hearsay evidence. This

approach represents a compromise between two competing fac­

tions on the Court. Justices Black and Harlan contend that

the information does not necessarily have to come from an

eye-.vitness, as long as the information is reliable. "Whether

the information v/as reliable should depend on the careful and

reasonable judgment of lower courts. On the other hand, Mr.

Justice Douglas and Chief Justice iarren contend that in many

instances even eye-witness reports are not sufficient to jus­

tify probable cause. In every instance tne informer should

be produced at the trial in order to determine the reliable­

ness of his inform.atlon. Even in the event of a reliable

report, officers must first obtain a searcn warrant before

they apprehend suspects and search their person, tneir homes,

or their property. In any event, the Supreme Court should

be the final judge concornlng the fa'cts surrounding questions

of probable cause, and thus the relative merits of conflict­

ing c ont ent1ons.

The cases presented thus far have dealt with tne search

and seizure of tangible objects. On several occasions the

Supreme Court has dealt with the problem of claims that the JL.

use by govorrncnt of electronic listeninp and record.Vn;

52

devices has violated Fourth Amendment rights. Perhaps this

line of cases is more closely related to the conflict between

the right of individuals to privacy and tne right of govern­

ment to use all legal means available to prevent crime and to

apprehend criminals. Supreme Court decisions in this area

carry a tremendous social impact, for they are kin to the

First Amendment freedom of expression as v/ell as to the pro­

cedural protection of the Fourth Amendment. Until recently,

the Court had treated such cases as if they v/ere different

from cases involving the search and seizure of tangible ob­

jects. The Court had fashioned the "physical intrusion" or

"trespass" formula in a series of cases discussed in Chapter I.

If a listening device had been placed inside the''defendant' s

home, or if the person carrying a listening or recording

device had trespassed on to the defendant's property, then

the evidence obtained thereof v/as not admissible in a

federal court.36 jn the absence of physical intrusion or

trespass, all evidence obtained througxi the use of electronic

listening or recording devices, and whicn v/as not procured

in violation of federal statutes, was admissible against

defendants in federal cases. The recent cases will reflect

adherence to, and subsequent modification of this doctrine.

The "physical intrusion" doctrine v/as reaffirmed in

1963 v/hen the Court upheld the use of evidence in court v/hich

had been obtained by a government agent v/ho had used a recording

36309 Chapter I for a detailed discussion of tne "physical intrusion" doctrine.

\

53

device during a conversation witn tne defendant.37 Lopez

v/as arrested and convlctO' for attempting to bribe a govern­

ment agent. During an encounter between Lopez and a Federal

Internal Revenue Agant, v/hich took place in Lopez's office,

the agent carried with him an electronic recording device.

He recorded the conversation in which Lopez offered him a

sum of money if he v/ould halt an upcoming investigation

concerning possible tax evasion. Lopez unsuccessfully sought

to suppress the recording as evidence. The circuit court

affirmed his conviction.

On certiorari, the United States Supreme Court affirmed.

Mr. Justice Harlan, speaking for five members of the Court,

held that the admission of the evidence did not violate the

Fourth Amendment since the agent v/as in the office with

defendant's consent and the recording device v/as used only

to obtain the most reliable evidence possible and was not

planted in the office. His decision v/as based, on the premise

that the agent's testimony regarding the encounter would have

been admissible in court; therefore, the recorded conversa­

tion was also admissible. In concurring with the results.

Chief Justice Warren distinguishes the instant case from

On Lee v. United otates3Q and stated that On Lee should be

overrule V.

37Lopez V. United States, 373 U.S. 1 27 (I963).

3"see Chapter I for the facts relating to On Lee v. Vniter Str-.tes, 3f-L3 U.S. 75? (1^52).

51+

Mr. Justice Bronnan, joined by Justices Douglas and

Goldberg, dissented on the ground that the admission of the

recording as evidence endangered the right to privacy of

every individual. He stated that On Lee should be overruled

and was unable to distingulsn between the instant case and

On Lee. The dangerous element involved in the decision of

the majority was that third parties, who could be classified

as conventional eavesdroppers, could give independent evidence

of any conversation. Such a situation tends to create a

climate of official lav/lessness and "concedes the helplessness

of the Constitution and the inability of this Court to protect

rights fundamental to a free society."39 in view of this

danger, the standard: governing the use of recorded conversa­

tions should be the s.:.me as those govorning the use of notes

and papers.

Underlying this dissent is the fear of unlimited use

of recordini - devices by law enforcement officers and paid

informers in order to obtain evidence. If tne procedure is

allowed to go unchecked, the innocent as well as the guilty

will suffer. If carried to its extreme form, the use of

recording and listening devices by la./ enforcement officers

would invade the privacy of individuals so tho.t no person

could speak without tne fear that "Big Brother is listening."

The majority of the justices, however, limited its considera-

39Lopez v. United States, 373 U. S. li.27, Li-50, (I963).

55

tion to the facts surrounding the instant case. They found

that there v/as no Invasion of privacy and that in this

instance, the use of the recording device v/as a legitimate

method for obtaining reliable evidence.

The Court apparently paid little attention to Mr.

Justice Brennan's dire predictions in his dissent in Lopez,

for in Lewis v. United States,^^ it held that a recorded

conversation between the defendant and a federal agent ,v/h6 .

had falsified his identification in order to gain entrance

into defendant's home and complete an illegal transaction

there was admissible in a federal court. A federal agent,

falsifying his Identification, telephoned Lewis and asked

Lev/is to sell him sorae narcotic drugs. Lev/is invited the

agent to come to his house. The agent, equipped '.dth a

recording device, went to Lewis's hom.e and com.pleted the

transaction. Three days later, he completed a similar

transaction .vlth Lev/is. The agent, during neither of his

visits, saw, took, or heard anything not contemplated by the

defendant as a necessary part of his illegal business.^1

Three months later, Lewis was arrested and charged with the

illegal possession and sale of narcotics. He unsuccessfully

sougnt to have the recording of the transaction with the s^ent

suppressed as evidence, contending tliat jn the absence of a

warrant, any official intrusion into tho privacy of a home

^ Lewis V. United States, 385 U..i. 206 (19bb).

'- Ibid., 3S5 ^.3. ?06 (1960).

56

constitutes a Fourth Amendment violation, and the fact

that the suspect invited tiie agent into his home cannot be

considered as a waiver of his rights vihen the Intrusion v/as

induced by fraud and deception. The appellate court affirmed

Lewis's conviction.

On certiorari, the United States Supreme Court

affirmed. Mr. Justice Harlan, speaking for five members of

the Court, held that since the agent had been invited into

the defendant's home, no question of governmental invasion

• of privacy v/as presented. Mr. Justice Brennan, joined by

Mr. Justice Fortas, concurred with the results solely on the

ground that defendant's home ./as not protected by the Fourth

Amendment as related to the business transaction on v/hich

the charges againsi: the defendant v/ere based.

Mr. Justice Douglas dissented on the ground that

Lewis's right to privacy had baen violated. He insisted that

the right to privacy is essential to guarantee an Individual

protection from unreasonable searches and seizures. Unless

"wiretapping" and "bugging" are subjected to stringent legis­

lative and judicial control, the breaches of privacy, wnicn

go hand-in-hand v/ith electronic surveillance, will undoubtedly

increase in geometric proportions. The Constitution provides

but one metiiod by v/nich the right to privacy can be Invaded,

and that is by the use of a search v/arrant. Judged by those

standards, tne ruling in the instant case should be that,

i'V/hen the a^ent had reason to believe that Lev/is v/cs sellino

57

narcotics, he should have obtained a search warrant, "H-

Thus Mr, Justice Douglas could not distinguish the

instant case from Looez. He contended that the only v/ay to

prevent the vholesale invasion of the privacy of individuals

is to strictly enforce the Fourth Amendment requirement that

officers must first secure a warrant before they invade the

privacy of an individual's home. For Mr. Justice Brennan,

who had dissented in Lopez, the fact that the agent was

reasonably sure that an illegal transaction v/ould take place

was sufficient to justify the use of the recording device.

Mr. Justice Harlan added to Brennan's justification, noting

that the agent obtained, no other evidence than v/hat v/as

specifically related to the illegal transaction.

The Court again upheld the use of evidence obtained

by the use of a recording device under circumstance-i similar

to those encountered in Lev/1 S.M3 A tape recording between

the defendant and a police officer, acting as an inform.er for

the F.B.I, was used as evidence against Osborn for attempting

to bribe a prospective juror in an impending federal case.

Osborn was convicted ov-r his objections that the recorded

conversation should be suppressed. The Circuit Court afi'irmed.

On certiorari, the United States Supreme Court affirmed.

^^Ibid., 385 U.S. 206, 31|-2-1L5, (1966). Douglas considered the Le/is, Hoffa, and Osborn decisions in one opinion.

}-3osborn v. United States, 385 U.S. 323 (I966) .

58

Mr. Justice Stewart, speaking for seven members of the Court,

held that since Osborn had voluntarily conversed vlth the

informer, no breach of privacy had occurred. Mr. Justice

Douglas dissented for the same reasons expressed in Lewis v.

United States^ ,adding that he would not allow as admissible

in court the fruits obtained by any electronic listening

device,H-14-

On a slightly different note, the Court upheld the use

of evidence in court obtained by an informer v/ho had been

"planted in the quarters and councils of a defendant."^-' The

testified concerning several incriminating conversations

betv/een himself and Hoffa. 'The defendants moved to suppress

the testimony of the informer, but the trial court denied the

motion. The circuit court affirmed the conviction.

On certiorari, the United States Supreme Court affirmed.

Mr. Jusi:ice 3te;/art, speaking for four members of the Court,

held that since Hoffa nad voluntarily conversed .vli:h the

informer, his Fourth Amend ,iont rights nad not been violated.

In concurring wiT:h the results, Mr. Ju oblce Clark, joined by

^^^Ibid., 385 U.S. 323, 3li-7, (1966).

^5Hoffa V. United States, 385 U.S. 293 (I966).

n

defendants v/ere tried and convicted for attempting to bribe I<Q

members of a petit jury in a previous trial against Hoffa,

the head of the Teamsters Union. A substantial part of the

0 i)

r 0 0

Govern vent's proof was contributed by a paid informer v/ho r t)

59

Mr, Justice Douglas, stated that certiorari had been impro-

vedently granted in the instant case, but did not elaborate

concerning this opinion.

Chief Justice Warren dissented on the ground that the

informer, in fact, became a "bugging device", and assumed

this role for an extended period of time, a situation out of

harmony with the commands of the Fourth Amendment, According

to the Chief Justice, the use to v/hich the informer v/as put

in the instant case is offensive to the fair administration

of justice in federal courts. He argued that the use of

informers may, or may not, constitute a violation of the : jj

Constitution, depending on the uses to v/hlch the informer « ft

was p u t . In the p r e sen t case , the use of the informer v/as f 0

illegal in that the informer v/ent wherever Hoffa v/ent and p r

heard every //ord that Hoffa spoke. To allov/ informers to ^ become in actuality a "bugging device" "evidences a serious

potential for undermining the integrity of the truth-finding

process in federal courts, "H-O

Thus a majority of the justices were v/illing to treat

Hoffa in the same manner that they had disposed of Lewis and

Osborn. For them, the controlling fact was that the defendant

had voluntarily made incriminatins statements in the presence

of the informer or agent. On the other hand, Cnief Justice

V/arren distinguished Hoffa from the other tv/o instances in

^^Ibid., 385 U.S. 293, 320, (1966).

6o

that here the informer was used over an extended period of

time. His "eavesdropping" v/as not limited to a specific

illegal transaction, but covered every statement and trans­

action that Hoffa made. Such a situation is repugnant to

the protection afforded individuals by the Fourth Anendment,

according to the Chief Justice.

The four cases considered in this section have been

federal cases. Until Berger v. New York, 17 the Court had not

considered a case involving "electronic eavesdropping" on the ^

part of state officers in viev/ of the relatively new Mapp

rule. In Berger, the Court struck dov/n a New York permissive ^ ' i

eavesdropping statute, contending that the statute did not *''o ^\

offer individuals the same amount of protection that indi- >

viduals enjoyed from eavesdropping on the part of federal o r IP,

agents. Based on numerous complaints concerning the payment f

of bribes by applicants for liquor licenses, the New York

City Attorney directed the ov/ner of a local bar to carry

with him a recording device and to confront an Ageno of tne

New York Liquor Authority. Based on the results of that con­

versation, the attorney, under the authority of Section 8l3 (a)

of the New York Code of Criminal Procedure, obtained per­

mission from a local magisLrate to plant a listening device

^7Berger v. New York, 35 L.W. 1}_61].9 (I967) .

6i

in the office of the agent for a period of sixty days. l-

Based on the results obtained thereof, and the planting ul

simj.a.ar devices in the offices of other agents, (with the

permission of the magistrate), Berger was arrested and in­

dicted as a go-between for the principal conspirators in

the bribery. He was convicted for.conspiracy to bribe the

Chairman of the New York Liquor Authority, over his objec­

tions that the evidence obtained through the use of the

listening devices was inadm.issible in court as a product of

a violation of the Fourth Amendment, The Nev/ York Court of

permit indiscriminate eavesdropping in that it did not require

the explanation of explicit circumstances, and allowed

continuous eavesdropping in violation of the Fourth Anendment.

In viev/ of Mapp v. Ohio, the evidence obtained in violation

of the Fourth Amendment v/as not admissible in court. Mr.

Justice Douglas concurred v/lth the results, stating that at

^^Section 813 (a) of the New York Code of Criminal Procedure allov/sd the planting of listening devices in homes or places of business for a period of sixty days upon oath or afflrraation of qualified persons, stating that there was reason to believe that evidence of a crime might be obtained, particularly describing the person or persons venose conversa­tion v/as to be overVneard and tne purposes tnereof, and iden­tifying the particular telephone number or telegrapn line involved.

' • )

z Appeals affirmed the conviction, .a

On certiorari, the United States Suprem.e Court re­

versed, Mr, Justice Clark, speaking for four members of Lhe

0 i) ft

r 0 0 Court , h e l d t h a t the Nev/ York s t a t u t e v/as so broad as t o p n r

62

long last Olmstead v. United States had been overruled, but

adding that he would suppress any evidence obtained by

eavesdropping. Mr Justice Stewart also concurred, stating

that the New York statute was constitutional, but that the

record of the instant case failed to shov/ probable cause,

Mr, Justice White dissented on the ground that the

New York statute was constitutionally applied in this case.

While recognizing that searches of private property through

eavesdropping v/ith a warrant should be carefully watched,

White \/as unwilling to hold that "all such entrances are

unconstitutional searches, "^9 He contended that the New York \\^

statute fulfilled every requirement of the Fourth Amendment

^^Berger v. New York, 35 L.W. i|61|9, li657, (1967) .

^ ^ i b i d . , 35 L.W. l4.6[}.9, lt-665, (1967) .

U ft

and v/as constitutionally applied in this case. r 0 0

Mr. Justice Harlan attacked the reasoning of the r ir r majority used to decide the case. He registered his familiar r

argument that in taking upon itself the sole responsibility

of setting the patterns of law enforcement, the Supreme Court

had again "shattered tlme-honjored traditions v/hlch have served

^0 to protect individual rights."-' The fundamental flav/ in the

reasoning of the majority v/as that it had struck dov/n a state

statute v/ithout taking into consideration the construction

given to that statute by the state courts. After careful

consideration of the construction given to the sta.tute by

1

63

the New York coiirts, Mr. Justice Harlan concluded that the

statute violated no commands of the. Fourth Amendraent.

Mr. Justice Black dissented on the ground that the

New York Statute offered the individual more protection than

can be found in the Fourth Amendment. Mr. Justice Black's

dissent is based on the premise that the Court had read

protections into the Fourth Ajnendment .vhich did not exist,

in that the Court had construed the Fourth Amendment as

barring invasions of privacy, rather than merely forbidding k

unreasonable searches and seizures. In his opinion, "fair-

ly construed, the Fourth Amendment refers to unreasonable h^ %>

searches and seizures, and not to a broad, undefined right ^ ft

to privacy in general. " - Judged by a fair construction of ^ ft 0

the Fourth Amendment, the Nev/ York statute actually offers P m n

individuals more protection than can be found in the Fourth ^

Amendment, and in ruling otherwise, .the Court had merely

added more confusion to an already complex subject.

The majority thus Indicated that state and federal

standards governing electronic eavesdropping v/ere the same.

In the instant case, the majority struck dov;n a state statute

which, in its opinion, was incompatible v/ith the Fourth

Amendment. Justices V/hite and Black, in separate dissents,

contended that the Court was trying to read into tne Fourth

Amendment protections v/hlch did not exist, Mr. Justice

^ijbid., 35 L.V/. [|.61 9, 1^671, (1967).

61

Harlan, not completely sold on the idea that state and

federal standards governing eavesdropping should be the

same, criticized the majority in that it failed to take

into consideration the construction given to the statute

by the state coiirts of New York.

The Court hinted in Berger that the status of the old

"physical intrusion" doctrine v/as in serious doubt. This

hint is most obvious in the two concurring opinions. Mr.

Justice Douglas stated that Olmstead had been overruled,

and Mr. Justice Stev/art employed the standards of probable

evidence obtained by placing a listening device on the

was inadmissible in court. Katz was convicted for trans­

mitting wagering information by telephone. At trial, the

Government was permitted, over aefendant's objections, to

introduce as evidence Kats*s end of a telephone conversation

overheard by P.B.I, agents who had attached a listening and

recording device to the outside of the telephone booth from

which the call was made. This was done in the absence of

a v/arrant. The circuit court affirmed the conviction.

ft

cause in order to arrive at a decision. Then in Katz v. t^

United States,-^ the Court abandoned the "physical intru- ^ 0 ft

sion" doctrine, holding that under the Fourth Amendment, r ft 0 r r

outside of a telephone booth in tne absence of a varrant r

^^Katz V. United States, 36 L.W. [-,080 (I967).

Il

a

65

On certiorari, the United States Supreme Court re­

versed, Mr, Justice Stewart, speaking for three members of

the Court, held that the use of the device in the absence

of a v/arrant violated Fourth Amendment standards of rea­

sonableness and probable cause. The decision was based on

the premise that people, not places, are protected from

unreasonable searciies and seizures by the Fourth Amend­

ment. Also, the Fourth Amendment does not protect a right

to privacy in general; it protects the privacy of indivi­

duals to the extent that it protects them from unreasonable

searches and seizures. In viev/ of modern advances in

tec^nnology, recorded conversations do not differ in substance '^ ft

from tangible notes and papers. Consequently, the same "" 0 0

restrictions Imposed on the use of notes and papers as p m

evidence should be applied to the use of recorded conver- ^

sations as evidence, and the contrary holdings in Olmstead

v. United States and Goldman v. United States should be

overruled. Judged by these standards, the actions of the

F.B.I, agents, v/hlch amounted to a search and seizure, were

incompatible v/lth the Fourth Amendment requirement of

reasonableness because the agents had acted v/ithout a v/arrant

and could not shov/ probable cause. Justices Douglas and

Brennan concurred v/lth the result, but did not elaborate.

Mr. .Justice Harlan concurred v/ith the result only to the

extent that he considered a telephone booth to be a "con­

stitutionally protected area." Mr. Justice White also

66

concurred,, bi.it stated that the Government could use evi­

dence obtained by eavesdropping without a warrant if the

nation's security were involved.

Mr. Justice Black dissented on the ground that the

majority was trying to read into the Constitution protections

that simply did not exist, although he did thank the majority

for clearing up some of the confusion it had created in

Berger v. New York. He could not agree that eavesdropping

by means of electronic surveillance constitutes a search

and seizure, nor could he agree v/lth attempts to rev/rite

the Fourtln Amendment in order to brin^ about results that kc 'o

many people deem desireable. To give such a construction J

to the Fourth Amendment is to play sleight of hand witn 2 r

it. Mr. Justice Black summed UP his position as follows: S r r

I have alv/ays attempted to give a liberal construe- r tion to the protections of the Bill of Rights, but ^ I do not believe that the Framers of the Constitu­tion, acquainted as they were v/ith the excesses of governnental power, intended to give this Court such omnipotent law-making pov/er as that v/hich it exercises today. The history of governments proves that it is dangerous to repose such pov/er v/ith courts.53

Narrov/ly read, the Katz decision imposes Fourth

Amendment standards of reasonableness and probable cause

to "spike mike" cases only. The effect that Katz will have on situations similar to those encountered in On Lee,

Le 'ds, Osborn, and Lopez is unclear at this time. However,

53ibid., 36 L. w. [|.68o, I169I1, (1967).

67

Mr. Justice Stewart did emphasize the fact that recorded

conversations did not differ in substance from notes and

papers. His statement resembles Mr. Justice Douglas'

dissent in Lewis. Thus it is not unlikely that the Court

will extend the scope of the Katz decision and apply Fourth

Amendment standards of reasonableness and probable cause

to the use of evidence obtained by undercover agents and

informers v/ho carry listening and recording devices with

them in both state and federal courts.

The search and seizure cases presented in this

chapter do not reflect a change in the thinking of the

Supreme Court concerning the interpretation of tne Fourth

Amendment; rather, they reflect a broadening in the scope

of the Amendment. The Fourth Amendm.ent standards of rea­

sonableness and probable cause, and the exclusionary rule

which serves as a remedy for the violation of these sts.n-

dards, were made applicable to state search and seizure

cases; and recently they v/ere extended to govern cases in­

volving electronic surveillance by state and federal

officers. No case indicates or implies that the Court has

abandoned its pragmatic approach employed to Interpret the

requirements of the Fourtn Amendment. That there .vlll

probably be no significant departure from this course in the

near future is evidenced by tne fact that a majority of the

justices implicitly rejected Mr. Justice Douglas' "zones

of privacy" doctrine in K31z v. Un Vted 3tates .• In all

68

probability, future decisions of the Court will be based

on the premises that information sufficient to justify

probable cause exists v/hen tho facts and circumstances

within the knowledge of the officer in a particular case

would warrant a man of reasonable caution in the suspicion

that a crime has been, or is being committed, and a search

becomes unreasonable v/hen the Interest of society in the

suppression of crime is outv/eighed by tne Interest of the

individual in his property or privacy.

CHAPTER III

ASSISTANCE OP COUl SEL AkD SELF-INCRIMINATION

The Court at time seems reluctant to uphold the

claims of individuals that their Fourth Amendment pro«

tection against unreasonable searches and seizures had

been violated by police officers. Tho Court, however, has

been much more generous to individuals who have claimed

that their right .to counsel or their privilege against

self-incrimination has been abused by the prosecution. The

reasons for such a seemingly different approach to different

provisions of the Bill of Rights v/ill be considered in the

concluding chapter of this paper; here it is sufficient to

say that the Court has consistently upheld tne claims of

individuals that, at some time during the judicial phase of

their prosecution, they were denied their right to the

assistance of counsel and their privilege against self-

incrimination. Tne decisions to be presented in this chapter,

v/hich deal v/ith the judicial phase of prosecutions (indlct-

m.ents, judicial inquiries, hearings, trials, and appeals),

will shov/ that the Court considers the right to assistance

of counsel and tne privilege against compulsory self-

incrimination to be essential guarantees that an accused

person A ill receive a fair trial.

69

70

The Right to Assistance of Counsel

When the Court incorporated the Sixth Amendment

guarantee of the right to assistance of counsel into the

scope and meaning of the Fourteenth Amendment, it failed

to answer the question of whether the entire body of federal

lav/ governing the right to counsel was nov/ applicable to the

states.1 In their separate concurring opinions. Justices

Douglas and Harlan registered conflicting opinions concern­

ing tnis question. Mr. Justice Douglas assumed that state

and federal standards governing the right to counsel were

nowo.the same,^ On the other hand, Mr. Justice Harlan noted

that there v/ere substantial differences between state and

federal criminal prosecutions and that the application of

different standards to federal and state cases might be

necessary in order to insure that each individual //ould be

able to exercise nls rights. He contended that states

could, and should, employ what procedural standards they

deemed necessary, provided that these standards guaranteed

to every individual the right to the effective assistance

of counsel.3 Apparently the Court has adopted the Douglas

viev/, for it has virtually eliminated the distinction

between state and federal standards governing the right to

assistance of counsel.

^Gideon v. .'ainwright, 372 U.S. 335 (1963).

^Ibid., 372 U.S. 335, 314-6, (1963).

^Ibid., 372 U.S. 335, 350, (1963).

71

One of the principles announced in Gideon v. Wain-

wright was that the right to the assistance of counsel exists

during every "critical stage" of any criminal prosecution.

Following this principle, the Supreme Court announced in

Douglas V, California,^ that under no circumstances could

a state appellate court deny any defendant the assistance

of counsel in instances where the defendant is allowed only

one appeal from conviction.

During their trial for the commission of felonies,

two defendants had dismissed the single public defender who

had been appointed to represent them. They requested

separate counsel, but the trial court denied their request.

After their conviction, they appealed by right to the

California District Court of Appeals, asking that court to

provide them v/ith counsel. The appellate court denied their

request under the authority of a prevision of the California

Code of Criminal Procedure which authorized such denials

v/hen, after a careful independent investigation of the entire

record, the appellate court determined that the appointment

of counsel for the defense v/ould be helpful neither to the

defendant nor to the court. The appellate court affirmed

defendants' conviction, and the California Supreme Court

denied them a hearing.

On certiorari, the United States Supreme Court

^Douglas V. California, 372 U.S. 353, 359, (1963).

72

vacated the judgment of the California courts, Mr. Justice

Douglas, .spealcing for six members of the Court, found that

the California procedure did not conform to federal stan­

dards,^ He found that the procedure discriminated between

indigent defendants and defendants v/ho could afford to re­

tain counsel, thus violating the equal protection clause of

the Fourteenth Amendment. Also, because the procedure

denied certain defendants the effective assistance of coun­

sel during a "critical stage" of a criminal prosecution,

it violated the due process clause of the Fourteenth Amend­

ment, The Court specifically limited its decision to include

only those cases involving only one appeal, and did not

ans;/er the question of whether the indigent has the right

to assistance of counsel in taking a second appeal to a

higher court or in seeking review by the United States

Supreme Court.

Mr, Justice Clark dissented from the decision of the

majority, contending that the majority had overlooked the

fact that the California procedure provided adequate

appellate review for the defendants. The appellate court

had not denied the defendants the effective assistance of

- Federal courts may by lav/ dismiss appeals whicn they consider to be frivolous; hov/ever, the Court held in Johnson v. United States, 352 U.S, 565 (1957), that federal appellate courts must appoint counsel for indigents v/Vio //Ish to chal­lenge such rulings on grounds tnat the appeal "vas not taken in good faith."

73

counsel, for that court had carefully examined the record

and had determined that the appoinment of counsel for the

defense would not benefit their cause. He further conten­

ded that instead of providing effective assistance of coim-

for defendants, the majority had, ", . , seen fit to pile

an intolerable burden on the State's judicial machinery

by its reasoning."^ In his opinion, the United States

Supreme Court now offered indigent defendants less protec­

tion than v/hich it purported to impose on the states,

Mr, Justice Harlan, joined by Mr. Justice Stewart,

dissented on the ground that California had fulfilled

every r-quiremenii ut the Sixth and Fourteenth Amendments,

He could find nothing to show that the California procedure

had re::>ulted in Injustices to indigent defendants. Relying

on his belief that state and federal prosecutions are sub­

stantially different in nature, he asserted that, "The

equal protection clause has no application here, and its

application to cases of this sort v/ill lead to mischievous

results. . .", and he crltized the majority for striking

down a state procedure which, "seeks only to keep v/ithln

reasonable bounds the instances in which appellate counsel

will be appointed for Indigents."7

Despite the contentions of the dissenters that such

a decision would hauuper the judicial machinery of the states.

^Douglas V. California, 372 U.S. 353, 359, (1963).

' Ibid., 372 0. s. 353, 359, (1963).

the majority ruled that states must furnish indigents with

appellate counsel in instances where the defendant has tlie

right to only one appeal, A majority of the justices ex­

tended this doctrine in Anders v, California,^ holding that

once appellate counsel had been appointed for an indigent

defendant, that attorney was obligated to prosecute the

appeal regardless of his opinion concerning the merits of

the appeal, or that the court v/as obligated to provide the

defendant with a lav/yer who would prosecute the appeal,

Anders sought to appeal his conviction for the

possession of marijuana, and asked the California District

Court of Appeals to appoint appellate counsel for him.

The appellate court complied with tnis request, but after

the appointed counsel determined that there v/as no merit in

the appeal and withdrev/ from the case, the court refused to

appoint another lav/yer for Anders. Anders v/as thus compelled

to argue his own cause, and the appellate court and the

California Supreme Court affirmed his conviction.

On certiorari, the United States Supreme Court

reversed, Mr, Justice Clark, speaking for six members of

the Court, held that California's action did not comport with

fair procedure and lacked the equality required by the

Fourteenth Amendment.

^Anders v. California, 35 L.W. [j.385 (I967).

76

lav/yers who will conduct his appeal to the best of their

ability. On the other hand, Mr. Justice Black seemingly

places his faith in the ability of appointed lav/yers to

determine the merits of an appeal. He asumes that a lawyer

who determines that there is no merit to an appeal will not

institute tne appeal regardless of whether his client is a

paying customer or an indigent. Thus, said Black, a state

satisfies the requirements of the Fourteenth Amendment if

it appoints appellate counsel for indigents, even though

counsel might not institute appellate proceedings.

The Supreme Court has held that the fact that appel­

late counsel has been appointed for an indigent does not

necessarily satisfy the Sixth Amendment requirements, for

that Amendment guarantees to every individual the right to

the effective assistance of counsel. Enploying this prin­

ciple, the Court held in Hardy v. United States-^^ that an

indigent who is convicted in a federal court is entitled to

a complete transcript of his trial in order that his appoin­

ted counsel may search for grounds for appeal.

Hardy had requested leave to appeal in forma pauperis

from his conviction in a federal district court. The appel­

late court appointed counsel for Hardy, an attorney v/ho had

not represented him at his trial. The appellate court

granted Hardy's motion for a transcript of his trial only

^^Hardy v. United States, 375 U.S. 277 (I963).

77

as t.o those parts v/hich related to the conclusory allega­

tions foKnulated by the indigent and refused to grant his

request for a transcript of the balance of the prodeedings

in the district court.- - The appellate court affirmed his

conviction.

On certiorari, the United State Supreme Court

reversed, Mr, Justice Douglas, speaking for seven members

of the Court, held that the appointed attorney could not

effectively discharge his duties unless he obtained a

complete copy of the transcript: therefore. Hardy had been

denied efiective assistance of counsel. In concurring with

the results, Mr. Justice Goldberg, Chief Justice Warren,

and Justices Brennan and Stewart added that in all federal

appeals a full copy of the transcript should be provided.

Mr. Justice Clark concurred v/lth the opinion only to the

extent that he felt bound by previous decisions in v/hlch

he had dissented.l^

Mr. Justice Harlan dissented on the ground that

reforms in in forma pauperis proceedings should be insti­

tuted by Congress, not by the Court. He stated in part:

llln forma pauperis proceedings, specifying the rights of indigents and the obllgatiun of federal courts to them, are governed by 28 U.S.C; Section l5l9.

^^Farlay v. United States, 3514- U.S. 521 (1957) and Copdege v. United States, 3^9 u7s. I4.38 (I962) .

79

On certiorari, the United States Supreme Court

reversed, Mr. Justice Douglas, speaking for six members

of the Court, held that Hurgett's right to counsel, "a

specific federal right as defined in Gideon v. Wainwright",

was violated in that the transcript of the prior convic­

tion, even in its amended form, was prejudicial to the jury.l^

Chief Justice V/arren concurred with the decision.

Mr Justice Harlan, joined by Justices Black and

V/hite, dissented on the ground that Hurgett's right to

counsel had not been substantially violated. Plarlan con-

^ % b i d . , 36 L.W. I1OII4., I4.OI5, (1967) .

l ^ I b i d , , 36 L.W, Ij-Oli^, I4OI7, (1967) .

• 1

tended tha t the prosecution has a r igh t to introduce evidence J • i^P

of prior convictions against a defendant. He added that, ' "The fact that the conviction turned out to be inadmissible -2

o for other reasons is at most a later corrected error in f2

r - / m

the admission of evidence,'"-" Contending that the United f

States Supreme Court does not sit as a court of errors and

appeals in state cases, he could find no reason to overrule

the decision of the state court of appeals. Underlying this

dissent is the assumption that in its zeal to protect the

right to counsel of any individual in a state prosecution,

the majority tends to "make something out of nothing" and

to usurp the functions that normally belong to state appel­

late courts.

80

In each of the cases presented here, the Supreme

Court has upheld the claim of the individual that his right

to co-onsel was vioL^ted. In each of tne cases, tne Court

has modified state and federal standards so that now there

is virtually no distinction between state and federal cases

in this area. A different line of cases, to be discussed

in the next chapter tends to support such a conclusion.

Also, in each of the state cases the Court has extended the

guarantee of the right to assistance of counsel to cover

areas untouched prior to Gideon v. Wainwrlgnt. In lignt of

these decisions, as well as other decisions involving the

rignt to counsel in v/nlcn there v/ere no dissents, it v/ould

not be unreasonable to assume that the Court v/ill extend

the right to counsel to protect every individual accused

of state or federal crimes during every critical phase of

the judicial proceeding, beginning witn the Indictment and

lasting until the final sppeal has been exhausted. 17

An interesting feature of the right to counsel cases

ie the lack of marginal, or five-to-four decisions. Seem­

ingly, the Court is not so sharply divided in these cases

as it is on other criminal procedure Issues. Mr. Justice

Harlan has been the only consistent dissenter. His basic

contention is that the Court has gone too far in its attempt

to extend the scone of the right to assistance of counsel.

' V/nite V. Maryland, 373 U.S. 59 (1963) and kempa v. 2 ^ , 36 L.W. [.009 (19^7)

81

In doing so, the majority has ignored substantial differences

in the administration of state and federal law enforcement.

Specifically, the majority has struck down constitutional

procedures employed by state courts in the attempt to ad­

minister the law fairly and efficiently simply because

they did not conform to federal standards. Such a rationale

could lead to mischievous results. Such an error is also

noticeable, according to Mr. Justice Harlan, in the federal

case where the Court assumed a burden v/hich should be handled

by Congress.

Mr. Justice Stewart agreed v/ith Mr. Justice Harlan

in the tv/o state appeals cases, but sided with the majority

in the other two instances, Mr, Justice Black agreed v/ith

Harlan in Anders and Hurgett, holding that the Court v/as

trying to read into the Sixth Amendment protections that

did not exist, Mr. Justice Clark agreed v/ith Harlan in

Douglas V. California, but his objections to the extension

of the scope of tne right to counsel expressed in that case

were not strong, for he later v/rote the majority opinion

which extended that rule. Finally, Mr. Justice V/hitc'-s one

dissent indicatod that he v/as unv/i111ng to extend the scope

of the right to counsel only v/hen the majority reversed a

conviction based in pa*rt on evidence of a prior conviction

in which the defendant v/as not represented by counsel.

Asido from those of Mr. Justice Harlan, there is no

discernible pattern in the dissents considered above. Tho

82

inconsistent dissents of the Justices in these cases offer

no threat to the position of the majority or to the assump­

tion that the right to counsel may be extended even further.

The Privilege Against Self-incrimination

The Supreme Court had traditionally given the Fifth

Amendment privilege against compulsory self-incrimination

a generous interpretation, in so far as the privilege might

be exercised in federal prosecutions: however, the Court v/as

reluctant to bring the privilege v/lthin the scope and mean-

1 fl ing of the Fourteenth Ajnendraent. As the Court began to

incorporate Fourth and Sixth Amendment provisions into the

Fourteenth Amendment, it became evident that certain justices

v/ished to make the privilege against self-incrimination

applicable to the states. " Finally, the Court announced

in Malloy v, Hogan 9: that the privilege against self-incrim­

ination v/as one of the provisions of the Bill of *\ights

which, by virtue of the Fourteenth Amendment, the states

could not abridge,

Malloy, as a witness in a state gambling probe,

asserted his privilege against self-incrimination, refusing

to ansv/er questions concerning his previous arrest during

a gambling raid. The state court declared him in contempt

^ Tv/inlng V. New Jersey, 211 U.S. 78 (I908), and Adamson v. California, 332 U.S. i\.6l {l^kD-

^9see Mr. Justice Black's concurx^ing opinion in Mapp V. Ohio, 367 U.S. 61j.3, 670 (1961).

^QMalloy V. Hogan, 378 U.S. 1 (I96I1-).

83

and committed him to prison until he was willing to testify.

He sought, and was denied, a v/rit of habeas corpus by the

Connecticut Supreme Court,

On certiorari, the United States Supreme Court

reversed, Mr. Justice Brennan, speaking for five members

of the Court, held that (1) the Fourteenth Amendment made

the Fifth Amendment privilege against self-incrimination

applicable to the states; (2) the privilege, if properly

invoked in state proceedings, is governed by federal stan­

dards; and (3) judged by these standards, Malloy»s privilege

should have been upheld. To a certain extent, the reasoning

of the majority foreshadov/s Miranda v. Arizona (to be

discussed in the next chapter), for the majority relied on

the close relationship betv/een the privilege against self-

incrimination and coerced confessions in order to reach its

decision. Coerced confessions are not admissible in state

or federal courts; the privilege against self-incrimination

serves to prevent the use of coerced confessions in court;

therefore, the standards governing the privilege against

self-incrimination should be the same in state and federal

prosecutions,

Mr. Justice Harlan, joined by Mr. Justice Clark,

employed the same reasoning that governed Harlan's attitudes

toY/ard the assistance of counsel cases in dissenting from

the decision. He contended that there are substantial

differences betv/een state and federal lav/ enforcement.

8k

differences which necessarily flow from our federal system

of government. By ignoring these differences the majority

had unleashed forces which could lead to the decay of the

federal system. In contrast to the dangers of incorporation,

the traditional standards of "fundamental fairness", a

natural consequence of the due process clause of the Four­

teenth Amendment, adequately served the dual function of

preventing injustices in state prosecutions, v/hile preserv­

ing the federal system of law enforcement embraced by the

Constitution. Concerning the coerced confession cases, he

contended that they were relevant to the present problem,

not because they overruled Tv/ining v. Nev/ Jersey, but because

they employed the standards of fundamental fairness, v/hich

should be applied to the present case. Mr, Justice Harlan's

argument against incorporation can be siimmarized in his

statement:

I do not understand how the process of examination, which must always reflect the guiding standard of due process of law including particular references to particular provisions of the Bill of Rights, can be short-circuited by the wholesale incorporation into due process, without critical examination, of the wnole body of law v/hich surrounds a specific prohibition directed against the federal government.21

Mr, Justice .yhite, joined by Mr, Justice Stewart,

dissented, not to the idea of incorporation, but to the

ruling that Malloy had properly invoked the privilege against

self-incrimination according to federal standards.

^^Ibid., 378 U.S. 1, 23, (I96I4-).

85

Five Justices clearly indicated in Malloy v, Hogan

that state and federal standards governing the privilege

against self-incrimination were the same. From this deci­

sion it logically follov/s that the Court would void all

state procedures which did not conform to federal standards.

One such procedure was the "unfavorable comment rule"

practiced by several states and which had been contested in

Twining and Adamson.^^ Under the authority of Malloy v.

ttogan, the Court declared that the unfavorable comment rule

amounted to an unconstitutional denial of the privilege

against self-incrimination in state prosecutions,^3 in a

prosecution which resulted in a conviction for murder in a

Los Angeles Superior Court, the failure of the accused.

Griffin, to testify in his own behalf v/as commented on by

the prosecuting attorney, and in their instructions to the

trial jury, both the prosecution and the trial judge acted

pursuajit to a provision in the California Constitution

which allowed such unfavorable comments to be made should

the accused refuse to testify. The California Supreme

Court affirmed the conviction, holding that Malloy v. Hogan

Four states, California, New Jersey, Ohio, and Ver­mont, allowed the trial judge or the prosecuting attorney to comment unfavorably on tne refusal of an accused person to testify. On the other hand, federal judges were required by law to instruct the jury that an unfavorable Inference may be drav/n from the refusal of the accused to testify,

^3Griffin V. California, 38O U,S. 609 (1965).

86

was not applicable in this case.

On certiorari, the United States Supreme Court

reversed, Mr. Justice Douglas, speaking for six members

of the Court, held that the Fifth Amendment privilege against

self-incrimination, made applicable to the states by the

Fourteenth Amendment, bars unfavorable comments from either

the prosecuting attorney or the trial judge concerning the

defendant's refusal to testify, Mr, Justice Harlan, feeling

bound by precedent, reluctantly agreed that the Fifth Anend­

ment bars unfavorable comments concerning the failure of

the accused to take the stand in a state criminal prosecu­

tion, but again registered his opinion that the Fifth

Amendment privilege against self-incrimination does not

apply to the states in all of its refinements.

Mr, Justice V/hite, joined by Mr, Justice Stewart,

indicated that he wished to limit the scope of the Malloy

rule. White's reasoning closely parallels that of Mr.

Justice Harlan in that he does not believe that the entire

body of federal law governing the privilege against self-

incrimination should be applied to the states. In the

instant case, he contended that in considering the unfavor­

able comment rule on constitutional grounds, the majority

was using the privilege against self-incrimination in a

different manner than the Frainers of the Constitution in­

tended for it to be used. He stated, "If any compulsion

be detected in the California procedure, it is of a

87

drastically different and less palpable nature than the

procedures which gave rise to the Fifth Amendment guaran­

tee," ^ Finding no evidence of compulsion in the California

procedure, he asserted that a defendant is at no more of a

disadvantage under the California rule than he would be in

a federal court. He thus criticized the majority for

striking do jvn a legitimate state procedure which amounted

to a "means of articulating and bringing into the light of

discussion a fact inescapably impressed on the jury's con-

2^ sciousness."

Having voided the unfavorable comment rule, the

Supreme Court indicated that it v/ould look unfavorably on

all attempts to circumvent the Griffin rule. Thus, when

the California Supreme Court attached a "harmless error"

ruling to a clear violation of the Griffin rule, the United

States Supreme Court ruled that federal lav/ would be used

to determine what constitutes harmless error in state self-

incrimination cases. The failure of Chapman to testify

at his murder trial was adversely commented on by the

prosecuting attorney. In dismissing Chapman's claim that

^^Ibld., 380 U. S. 609, 619, (1965).

25ibid., 380 u, s. 609, 623, (1965).

^^Chapman v, California, 386 U.S. I8 (1967). For an explanation of harmless error, see the analysis of Fahy v. Connecticut presented in Chapter II,

66

under Griffin v. California he was denied his privilege

against self-incrimination, the California Supreme Court

ruled that the violation of the Griffin rule constituted

a harmless error.

On certiorari, the United States Supreme Court

reversed, Mr, Justice Black, speaking for seven members of

the Court, held that federal lav/ would be used to determine

what constitutes harmless error in state self-incrimination

cases and in the instant case, the error was not harmless,

Mr. Justice Harlan, v/hose support of the Griffin

rule was less than enthusiastic, dissenteddorL the ground

that the California Supreme Court's reasonable application

of its harmless error rule constituted an independent and

adequate state ground for upholding the conviction. At

the root of Mr. Justice Harlan's dissent is his familiar

contention that the Supreme Court should exercise a great

deal of restraint in interfering with the decisions of

state courts. As he did in Fahy v. Connecticut, Mr, Jus­

tice Harlan criticized the majority for not ruling on the

constitutionality of state state harmless error rulings.

He recognized the fact that state harmless error rulings

could have mischievous consequences, but stated, "Here the

record is barren of any showing that the California courts

have used their harmless error rale to dilute constitutional

guarantees." '

27ibid., 386 U.S. 18, I4.8, (1967).

89

Since the California court had reasonably applied its harm­

less error rule in the instant case, "The record shov/s that

the rule itself is not out of keeping with the Fourteenth

Pfi Amendment standards of fundamental fairness,"

Aside .from its specific ruling on harmless error.

Chapman v, California illustrated the impact that the doc­

trine of stare decisis may have on the thinking of Individual

justices, M r , Justice Stewart, v/ho had dissented in Griffin

stated in his concurring opinion in Chapman that violations

of the Griffin rule should result in the automatic reversal

of convictions. The other dissenttr in Griffin, Mr. Justice

White, agreed that violation of the Griffin rule did not

constitute a harmless error. Thus in certain instances

stare decisis tends at least to hide, if not to lessen,

objections to controversial decisions,

y/henever the Supreme "Court establishes a new procedural

rule to replace old standards, the question of v/hether that

new rule is entitled to retroactive application seems to

follow. In handling the question of retroactivity, the

Court must determine whether the nev/' rule is so necessary

to concepts of justice as to warrant the reconsideration

of final convictions under the overturned procedural stan­

dards. In Te.hen v. Shott,^^ the Court refused to grant

^^Ibid., 386 U.S. 18, 5I4-, (1967).

^^Tehen v. Shott, 382 U.S. 14-06 (I965) .

90

retroactive application to the Malloy and Griffin rules,

Tehen, vhose conviction had become final prior to Malloy,

sought to attack unfavorable comments made by an Ohio judge

and the prosecuting attorney, in view of the alleged

retroactive application of Malloy v, Hogan, While his case

was pending, the United States Supreme Court announced its

decision in Griffin v. California. On certiorari, Mr,

Justice Stewart, speaking for five members of the Court,

ruled that in view of the burdens that would be placed on

the administration of justice in the state courts by the

retroactive application of the Malloy and Griffin rules,

these rules -//ere not entitled to retrospective application

to cases which had progressed to the point wnere a petition

for certiorari had been finally denied prior to the Griffin

decision. Mr. Justice Black, joined by Mr. Justice Douglas,

dissented for the same reasons stated in his dissent in

7,0

Linkletter v. V/alker.-^

The Linkle t te r and Tehen decisions i l l u s t r a t e the

rat ionale used by the Court in order to determine whether

a ne.; cons t i tu t iona l rule i s en t i t l ed to re t roac t ive app l i ­

cation. In such instances the Court must determine whether

the new rule i s so essen t ia l to the r igh ts of individuals

as .to v/arrant the hearing of numerous appeals from persons

3^See Chapter I I for a discussion of Linklet ter v. Walker, 38I U.S. 618 (I965)•

91

v/ho were convicted under overturned procedural rules. In

deciding the question, the Court first looks to the history

and purpose of tne privilege asserted. It then considers

the extent to v/hich the officers relied on the old rule.

If the Court finds, as it did in Gideon v. Wainwright, that

the rule is essential to prevent gross injustices, then it

will give the nev/ rule a retroactive effect. If the Court

finds otherv/iae, as it did in Linkletter and Tehen, then it

will set the effective date of the rule at the time that

the rule was announced. Justices Douglas and Black, hov/ever,

contend that nev/ rules are entitled to retroactive applica­

tion. The fact that persons who have been convicted under

procedural rules deemed unconstitutional by the Supreme

Court must remain in prison is repugnant to their concepts

of fairness and justice. Their objections remain constant

regardless of the nature of the rule, for they have dissented

every time that the Court has failed to grant retroactive

application to a new procedural rule.

One of the principles announced in Malloy and Griffin

was that the assertion of the privilege against self-

incrimination should not be costly to the claimant. In view

of this principle, the question arises concerning v/hether a

public official might be discharged from office if he should

refuse to ansv/er questions relating to his conduct on

grounds that the answers might tend to incriminate him.

Althouc h the Court has never ruled on this specific point.

92

it did rule in Spevack v. Klein^-^ that a state may not

disbar an attorney for failure to produce financial records

and for failure to testify concerning his conduct. A

disbarment proceeding for professional misconduct was brought

against Spevack, a member of the New York bar, on a charge

of refusal to honor a svibpoena in that he failed to produce

demanded financial records and failed to testify at the

judicial inquiry concerning his professional conduct, Tho

Nev/ York Supreme Court ordered Spevack disbarred, holding

that the privilege against self-incrimination was not

applicable to him as a lav/yer.

On certiorari, the United States Supreme Court

reversed. Mr. Justice Douglas, speaking for four members

of the Court, held that the privilege against self-

incrimination extends to lav. -ers, forbidding the imposition

of tho sanction of disbarment as a penalty for rem.alning

silent, and that the contrary ruling in Cohen v. Hurley32

should be overturned,. He reasoned that the privilege

extends to "all persons", that lawyers should, enjoy first-

class citizenship, that the assertion of the privilege

against self-incrimination should not be costly to its

claimant, and thus that lawyers should not suffer penalties

for remaining silent. Mr. Justice Fortas agreed that Cohen

V. Hurley should be overruled, but stated that a distinction

31spevack V. Klein, 385 U.S. 5ll (I967).

• Cohen v. Hurley, 366 U.S. 117 (1961).

93

should be made between a lawyer's right to remain silent

and that of a public employee who is asked questions

specifically relating to the performance of his public duties,

as distinguished from questions concerning matters not within

the scope of his public duties,

Mr, Justice Harlan, joined by Justices Clark and

Stewart, dissented on the ground that a lav/yer's disbarment

for failure to provide information relevant to charges of

professional misconduct does not violate nls privilege

against self-incrimination. Harlan contended that the cen­

tral issue of this case did not concern the question of

v/hether lav/yers should enjoy first-class citizenship;

rather, it concerned the scope of the privilege against

self-incrimination in light of the Fourteenth Amendment in

state disciplinary proceedings against attorneys. He argued

that when a person is admitted to the bar, he assumes

special obligations, because his profession is so closely

related to the fair and efficient administration of justice.

In viev/ of this relationship, a lawyer's proper professional

conduct is essential to the fair administration of justice.

Since states are charged with the administration of justice,

they enjoy the right to establish rules relating to conduct

which effects the administration of justice. One such rule

is the penalty of disbarment imposed on lawyers who fall to

provide information relevant to charges of professional

misconduct. Harlan stated:

91+

'i/yhile not denying the importance of such rules, the majority apparently contends that the privilege against self-incrimination forbids the disbarment of lav/yers who fail to answer relevant questions relating to the performance of tneir public duties. I find nothing in the Constitution of the United States or the precedents announced by this Court to justify such a holding.33

Mr. Justice V/hite dissented on the ground that

since statements obtained from lav/yers, concerning their

conduct as lav/yers, cannot be used against them in sub­

sequent criminal prosecutions, there is little legal or

practical ground, in terms of the privilege against self-

incrimination, for refusing the disbarment of la'vvyers who

fail to talk about the performance of their official duties.3q-

He contended that the decision v/as luifounded, in the sense

that it applied to lav/yers. He added that the decision had

broader implications than could be found in its specific

ruling in that the decision of the majority implied that- no

public official could be removed from office for failure to

testify concerning the performance of his duties, a rule to

v/hich he could not agree.

In their separate opinions. Justices Fortas and v.hite

specifically touched the question of whether public officials

could be removed from office for refusal to answer questions

relating to their public conduct. Here questions relating

to the performance of one's public duties must be dlstin-

33spevack v. Klein, 385 U.S. 5ll, 528, (I967).

^^Ibid., 385 U.S. 511, 530, (1967).

95

guished from questions relating to one's personal affairs.

Certainly the privilege against self-incrLmination protects

public officials from removal if they refuse to ans./er

questions relating to their personal behavior, their atti­

tudes, their loyalty, etc.35 However, any assumption that

the privilege against self-incrimination protects public

officials from removal if they refuse to answer questions

specifically relating to the performance of their public

duties is subject to serious doubt. Should such a case

come before the Court, at least four Justices would hold

that the privilege does not bar the removal of officials

who refuse to answer such questions. Justices Fortas and

White announced such an opinion in Spevack, and Justices

Harlan and Stewart dissented to the holding that the privi­

lege extended to lav/yers. The deciding vote could come from

any of the remaining justices, for none of these justices

has voiced objections to Mr. Justice Fortas's opinion. The

deciding vote might well come from Mr. Justice Black, v/ho

purports to make his decisions strictly according to the

language of the Constitution, or from Mr. Justice Brennan,

who has been willing to place some limitations on the scope

3%nlted States Supreme Court Reports, 17 L. Ed. 2d 1132 (1967), Annotation: ''Self-incrimination; Discharge of Officers".

96

of the privilege against self-incrimination.3^ Should such

a case come before the Court then, it is not unlikely that

the Court would hold that the privilege against self-

incrimination does not forbid the discharge or removal of

public officials who refuse to answer questions specifically

relating to the performance of their public duties.

On a slightly different note, the principle that the

assertion of the privilege against self-incrimination should

not be costly to the claimant leads to the question of

;»'hether the privilege governs statements made by defendants

in the attempt to exercise other procedural rights. The

United States Supreme Court ruled in Garrett v. United

State337 that a defendant may not be forced to surrender

any of his other constitutional rights in order to assert

his privilege against self-incrimination, and conversely,

that a defendant v/ho /ishes.to exercise any of nls consti­

tutional rights cannot be forced to surrender nis privilege

against self-incrimination in order to do so. F.B.I, agents,

who suspected that Garrett might have participated in a bank

robbery, searche-, v/lthout a warrant, his sister's home and

found in her basement a suitcase, allegedly belonging to

36Mr. Justice Brennan held that the witndrawal of blood did not violate the defendant's privilege against self-incrimination in a case to be discussed in relation to other subjects.

•^^Garrett v. United States, 36 L. W. [|.27 (I968) .

97

Garrett, vhich contained clothing fitting the description

of that worn by the robber. Garrett was subsequently

arrested and charged with robbery. Beforo trial, he sougnt

to have the suitcase and clothing suppressed as evidence,

contending that they were taken during an illegal search

and seizure. The trial judge suppressed the evidence, but,

over Garrett's objections, allowed the prosecution to

introduce as evidence several incriminating statements made

by Garrett concerning his motion to suppress the suitcase

and clothing as evidence. Despite Garrett's contention

that the introduction of the statements made during the

pre-trial hearing violated his privilege against self-

incrimination, the appellate court affirmed his conviction

for robbery.

On certiorari, the United States Supreme Court

reversed. Mr. Justice Harlan, spealcing for sis members

of the Court, held that the admission as evidence of

Garrett's inculpatory statements, made during the motion to

suppress evidence seized without a warrant, denied Garrett

his privilege against self-incrimination.

Mr. Justice Black, joined by Mr. Juvtlce V/hite,

dissented on the ground that Garrett had voluntarily v/aived

his privilege against self-incrimination. Black agreed that

the assertion of the privilege against self-incrimination

should not be costly to tie claimant, and he agreed that

accused persons could not be forced to surrender tne urivi-

98

lege in order to obtain a specific benefit. He argued,

hov/ever, that the decision of the majority in this case

v/ould seriously endanger the truth finding process in that

any defendant who chose to do so might move to suppress

evidence and then could lie, without penalty, concerning the

incriminating effect of the evidence, whether it had been

suppressed or not. He stated:

The privilege against self-incrimination has always been considered a privilege that can be waived, and the validity of that waiver is not undermined by the inevitable fact that by testifying a defendant obtains the benefit of a chance to help his ov/n case by the testimony he gives.-^

The cases presented in this section indicate that the

Supreme Court tends to place the benefit afforded to indi­

vidual procedural rights by the privilege against self-

incrimination above other Interests that may be involve^.

Only in one instance did the Court fall to uphold the claim

of an individual that nis privilege'against self-incrimina­

tion had been violated, and in this instance, Tehen v. Short,

the Court refused to grant retroactive effect to a nev/ rule

governing the privilege against self-incrimination rather

than openly declaring that tne privilege had been violated.

Disregarding the question of retroactivity for the moment,

there seems to be lacking in tnese cases a single concurrent

issue which divides the Court. Mr. Justice Harlan has never

38 Ibid., 36 L.V/. kkkl, lj.232, (1963).

99

given up his view that state self-incrimination cases should

be decided according to the standards of fundamental fair­

ness, but even he bowed to the doctrine of stare decisis in

one instance where the Court, acting pursuant to Malloy v.

Hogan, struck down a state procedure which did not conform

to federal standards. Mr. Justice Clark joined Mr. Justice

Harlan in his fight against incorporation, but sided with

the majority in all of the cases directly related to Malloy

V, Hogan, Ho again became a dissenter when the majority

extended the privilege against self-incrimination to lawyers.

Justice Stewart and Justice V/hite attempted to avoid a

doctrinaire approach to the problem. They dissented in

Malloy v. Hogan for reasons other than objections to

incorporation, and dissented in Griffin v, California, but

sided v/ith the majority in Chapman v. California, a case

Involving violation of the Griffin rule. They joined

Justices Harlan and Clark, expressing the viev/ that the

privilege against self-incrimination does not apply to

lawyers. Thoy purport to consider each case in view of the

particular facts and circumstances surrounding it, and then

to make their decisions accordingly. Mr. Justice Slack

seemingly agrees to the establishment of new procedural

rules, even to the extent that he would grant them retro­

active application, up to the point where, in his opinion,

the majority has read into a provision of the Bill of Rights

protections that do not exist. These acattered dissents,

100

even though two of the cases v/ere five-to-four decisions,

pose no great threat to the position of the Douglas majority,

and there is no reason to believe that these decisions will

be overturned in the near future.

In summary, the Supreme Court has treated those

provisions of the Bill of Rights dealing with assistance

of counsel and self-incrimination rather generously,

in so far as they serve to protect the rights of individuals

from abuse by governznent. These rights are absolute in

state and federal prosecutions. State and federal stan­

dards governing these provisions are essentially the same,

for the Court considers these two provisions as essential

safeguards of the right of every individual to a fair trial.

Since 196I4., the Court has ruled in a series of cases that

these two provisions of the Bill of Rights afford indi­

viduals even more protection than can be found in 'the

courtroom. An analysis of this recent trend will be pre­

sented in the follov/lng chapter.

CHAPTER IV

RIGHTS OF SUSPECTS

Up to this point, cases involving search and seizure,

assistance of counsel, and self-incrimination have been

treated separately. Acutally such a separation is sometimes

arbitrary, for in many instances these provisions of the

Bill of Rights overlap in so far as tney serve to protect

individuals from.abuses by government. As far back as

Boyd V. United States,! the Supreme Court recognized a

close relationship betv/een the privilege against self-

incrimination an'l the protection against unreasonable searches

and seizures afforded to individuals by the Bill of Rights,

for it noted that forcing a man to produce books and papers

in court amounted to the same thing as forcing him to

testify against himself, Mr. Justice Black stated in 1.1 app

v. Ohlo^ that in many cases the Fourth and Fifth Amendment

protections overlapped. Also, the Court has used the

privilege against self-incrimination as constitutional

grounds for barring the admission of coerced confessions in

federal courts.3 Again the Court sa,v fit to employ such a

• Boyd V. United States, ll6 U.S. 6l6 (lc86) ,

%app V, Ohio, 367 U.S. 61J,3 (I96I).

33ram v. United States, 160 U.S, 532 (I897).

101

102

rationale when it sa./ fit to incorporate the privilege

against self-incrimination into the Fourteenth Amendment,^

In fact, the Court has incorporated into the meaning of the

Fourteonth Amendment all of those provisions of the Bill of

Rights which it nas considered to be essential to a fair

trial.

The net effect of recent Supreme Court decisions

has been to merge certain procedural provisions of the Bill

of Rights into what shall be termed, for lack of a better

label, rights of suopects. The reasoning behind these

rather controversial "investigatory" decisions is that if

provisions of the Bill of Rights, especially tne right to

assistance of counsel and the privilege against self-

incrimination, are indeed essential to a fair trial, then

they should exist at every "critical stage" of any criminal

prosecution. The dissenting view from such a line of

reasoning, stated most frequently by Mr. Justice Harlan,

rests on the contention that each case should be decided

according to its ov/n merits. Each case that comes before

the Supreme Court presents different problems, questionv^,

and circumstances for consideration. This being the case,

a rigid formula, if used by courts, could easily undermine

the process of law enforcement. For instance, failure to

comply .-ith some minute gui-'eline laid down by the Court

ilalloy V. Hogan, 378 U.S. 1 (I96I}-).

103

might void an othervjise voluntary confession, thus inevit­

ably eliminating the use of confessions as evidence in

court.

Again, the fact that there is an inherent conflict

in each procedural case, the conflict between the rights cf

individuals and the public interest, must not be overlooked.

Judged by the number of five-to-four decisions.in the cases

to be presented in this chapter, it can be assumed that the

conflict is so intense in this area that it has been diffi­

cult for the Court to satisfy the competing interests

involved. A summary of the cases presented in this chapter

v/ill show that in moot instances the majority, led by Chief

Justice V/arren, and Justices Douglas and Black, has sought

to protect the rights of Individuals against infringement

on the part of la// enforcement officers; ./hlle the dissenters,

led by Mr. Justice Harlan, contend that the reasoning of tne

majority is damaging to the public interest.

One of the principles announced in Gideon v. V/ain-

./right was that the right to counsel exists at every

critical stage of any criminal prosecution. Based on Gideon

and a 1957 decision of a lower federal court tnat the rignt

to counsel Includes the right to consult witn a la./yer

without having the conversation monitored by government

^Gideon v. Wainwright, 372 U.S. 335 (1963).

10l+

agents, the United States Supreme Court ruled in vlassaiah

V, United States^ that the right to counsel bars testimony

relating to an incriminatory statement, whether the state­

ment is overheard or monitored, of an indicted person made

in the absence of his counsel.7 Massaiah had been indicted

for the possession of narcotics. While free on bail, the

defen'^ant, in the absence of his counsel, held a conversation

with a confederate in the latter's automobile. The confederate

had allov/ed a federal agent to install a radio transmitting

device under the front seat of the automobile, by means of

which the agent overheard the conversation. At trial, over

the objections of the defendant, the agent testified

concerning the overheard conversation in v/hlch Massaiah had

made several incriminating statements.

On certiorari, the United States Supreme Court

reversed. Mr. Justice Stewart, speaking for six members of

the Court, held that the testimony in question should not

have been admitted as evidence. He held that the period

between indictment and trial was a crltlccil period, tnat

the right to counsel is effective during such a period,

and that the introduction of the testimony in question

violated Mas sal all's right to assistance of counsel.

^Massaiah v. United States, 377 U.S. 2ol (I96I+) .

'''Coolan V. United States, 191 Fed, 2d (1957).

105

Mr, Justice White, joined by Justices Harlan and

Clark, criticized the majority for barring as evidence

statements which //ere voluntarily made. He contended that

Massaiah had enjoyed every right normally incident to the

right to assistance of counsel. At no time was he denied

the right to consult v/ith his counsel. The fact that he

voluntarily made an incriminating statement in the absence

of his counsel could not be construed as a denial of nis

right to counsel, and the fact that tne agent had planted

a listening device in the car constituted only an att- .mpt

to gain reliable evidence. White stated in part:

In my view, a civilized society must maintain the capacity to discern transgressions of the law v/henever they occur. It is therefore a rather portentious occasion ./hen a new constitutional rule is established barring evidence v/nlch is relevant, reliable, and probative of vhether tne accused actually committed the cri ie v/lth vhlcn he has been charged. Without the evidence, tne truth may be seriously impeded."

Thus the tide was set into motion. If the period

betv/een indictment and trial was a critical stage of a prose­

cution such tliat statements made in the absence of counsel

were not admissible in court, tnen it might logically be

reasoned that statements made during police interrogation

in the absence of counsel vere also inadmissible in court.

Such reasoning v/ould depend on v/hether the process of

police Interrogation was a critical period of a criminal

8 Massaiah v. United states, 377 U.S. 2ul, o6, (I96I4-) .

10 6

prosecution. In attempting to ansv/er this question, the

Court used Massaiah and Mr. Justice Douglas' concurring

opinion in Spano v. Nev/ York" to link the rignt to counsel

with the suppression of coerced confessions as evidence.

Prior to Escobedo v. Illinois, 1^ the only avenue by v/nich

defendants could challenge the admission of alleged coerced

confessions in state criminal prosecutions was the volun­

tariness test governed by the due process clause of the

Fourteenth Amendment. Escobedo extended the protection of

the right to counsel to prevent the admission of statements

in court, v/hen, in the face of a request by the defendc^nt,

these statements were made in the absence of counsel for

the defense.

On the bo.sls of a statement made by an alleged

accomplice, Danny Escobedo was apprehended and held for

questioning concerning a murder. He requested to see his

attorney, but the police refused to let the attorney see

his client. The two were kept apart until Escobedo confessed

to the murder after four hours of questioning. Escobedo's

conviction, based in p rt on his confession, was sustained

in the Illinois courts.

On certiorari, tne United States supreme Court

reversed. Mr. Justice Godlberg, speaking for five members

^Spano V. New York, 360 U.S. 3l5, 328, (1959).

^^Escobedo v. Illinois, 378 U.S. 1 78 (I96I4-) •

107

of the Court, could not distinguish Escobedo's situation

from that of Massaiah simply because Escobedo had not been

formally charged. He ruled that interrogation by police

officers is a critical stage of any prosecution. The

critical period begins when a suspect has been taken into

custody, and the attempt to elicit incriminating statements

from him has begun. At this point, a suspect is entitled

to consult v/ith a lawyer and to be v/arned of his right to

remain silent and the fact that statements may be used

against him in court. Failure to comply v/lth tnese guide­

lines constitutes a denial of the right to assistance of

counsel and renders statemf.i>nts obtained thereof inadmissible

in court.

Four justices vigorously dissented. Mr. Justice

Harlan labeled the rule announced by the majority as "ill

conceived", a rule v/hlch "seriously and unjustifiably

fetters perfectly legitimate means of criminal law enforce­

ment, "^^

Mr. Justice Stewart criticized the majority for

transfor:iilng a routine inv^ostigation into a distorted

analogue of a judicial trial. He contended that the rignt

to counsel exists only vhen formal judicial proceedings

are in effect. An indictment or similar judicial proceedin/v

• • Ibid., 378 U.S. [|.78, I|.88, (1961^). 12

Ibid., 378 U.S. [1.78, I4.08, (I96I4-).

108

marks the point where the right to assistance of counsel

becomes effective. Beyond that, the right does not exist.

Because Massaiah had been formally indicted, Mr. Justice

Stewart could agree v/lth the majority in that case; ho ./ever,

the fact that Escobedo had not been formally charged com­

pelled him to dissent in the instant case. In his opinion,

the erroneous reasoning of the majority, " . . . perverts

precious constitutional guarantees and frustrates the vested

interest of society in preserving the legitimate and proper

functions of honest and purposeful police interrogation."13

Mr. Justice uhite, jolnev by justices Stev/art and

Clark, contended that the decision of the majority reflected

an unsupportable distrust of la// enforcem.ent officers

every.-here. In his opinion, the majority was seeking to bar

the admission of all statements made by suspects, whether

or not they were voluntarily made, in order to prevent the

use of coerced confessions in court. In this instance, the

remedy v/as worse than the disease, for the decision of the

majority v/ould seriously Impede the truth finding process.

White stated:

Certainly police officers make mistakes, but I have more faith than the Court apparently has in the abi­lity and desire of prosecutors and the pov/er of appellate courts to discern and correct such viola­tions of the lav/, 11+

^3ibid., 378 U.S. I478, 1 97, (1961}.).

^^Ibid., 370 U.S. If78, 1 98, (196I1.).

109

Again the seemingly endless conflict between the

rights of society and the rights of individuals is in

evidence. The decision of the majority was based on the

premise that an accused person should enjoy every possible

advantage that the Constitution and laws of the United States

might afford him, and the assistance of counsel throughout

the process of interrogation is the only sure guarantee that

an accused person will be able to effectively exercise

these rights. On the other hand, the dissenters contended

that the decision would hamper law enforcement officers

everywhere, which in turn v/ould damage the right of society

to apprehend and punish criminals. They argued that the

voluntariness test affords adequate protection to accused

persons v/ithout seriously hampering lav/ enforcement efforts,

Escobedo made it clear that fe-'oral-constitutional

doctrine affecting the use of confessions as evidence v/as

on a new track, and it immediately became evident that

state and lover federal courts ,,ere confused as to v/hat the

^^^ Escobedo requirements actually vere,15 For example,

some courts held that under no circumstances could an

investigation proceed unless the accused had the opportunity

to consult with a lawyer; while other courts held that a

warning that the accused had a right to consult ith a lav/yer

•^ James Geroge Jr., Constitutional Lloil tat ions On Evidence In Criminal Cases, (Ann Arbor: Institute of Continuous Legal Education, 1966), p. 95.

110

was sufficient. Some courts ruled that a warning was not

necessary in every Instance and that statements were not

admissible in court only if made in the face of a request

to consult v/ith a lawyer; v/hile other courts held that a

warning to the accused of his rights was necessary and that

statements obtained in the absence of coimsel ./ere admissible

only in instances where the accused had clearly and intelli­

gently waived his right to counsel. In order to clear up

some of this confusion, the Supreme Court granted certiorari

in a series of four cases collectively called Miranda v.

Arizona.

Over half a century before Miranda came before the

Court, the Supreme Court had ruled in Bram v. United Statesl7

that the privilege against self-incrimination affords defen­

dants in federal cases constitutional grounds on which to

challenge the admission of allegedly coerced confessions

in court. In viev/ of the precedent established by Malloy

V. .Kogan, and the reasoning thereof, the Court ruled that

the privilege against self-incrimination was now applicable

to the adinlssion of confessions in both state and federal

courts.

On June 13, 1966, the United States Supreme Court

handed down one opinion covering four cases, Miranda v.

Arizona, Vignera v. New York, Westover v. united States, and

^^liranda v. Arizona, 3814- U.S. I4.36 (I966).

17Bram v. United States, 168 U.S. 532 (I897).

Ill

California v, Ste./art. Miranda was arrested for rape and

identified by the victim. He was tnen questioned v.lthout

being advised of his right to an attorney, his right to

remain silent, and the fact that statements might be used

against him in court. In affirming his conviction, based

in part on his confession, the Arizona Supreme Court ruled

that his confession had been voluntarily given. Vignera

was arrested for robbery and was identified by the victims.

He was questioned for several hours, late at night, and

without any warning concerning his rights being given. The

trial judge did not permit cross-examination of the interro­

gating officers and instructed the jury that failure to

advise the accused of his rights did not void a confession.

Vignera v/as convicted and sentenced to thirty years in

prison. Vi/estover was arrested by Kansas City police and

interrogated over a t/ielve hour period. Thereafter, tiie

officers notified F.B.I, agents that they could take him into

custody on charges of robbing a bank. The F.B.I agents

warned Westover of his rights, but thox-e was no evidence

to show that the Kansas City police had given such a warning.

V/estover v/as convicted and sentenced to thirty years in

prison. Stewart was arrested for a series of purse snatch-

Ings, during one of v/hich the victim had died. Police

obtained permission to search his house and found evidence

from some of the robberies there. Stev/art ;;as then ques­

tioned for a period of five days until he confessed. After

112

his confession, Stewart vas brought before a magistrate

for the first time. There was no evidence that Stewart

had ever been warned of his rights. The California Supreme

Court reversed his conviction on the basis of Escobedo v.

Illinois. The controlling facts in each case v/ere that

confessions had been obtained in the absence of counsel

for the defense and that no warning of the right of the

accused to consult with a la oyer, his right to remain silent,

and the fact that statements might be used against him in

court v/ere in evidence, 1^

In a five-to-four decision, the United States

Suireme Court reversed the convictions in the first three

cases and affirmed the judgment of the California Supreme

Court in the Stev/art case. Disregarding the Escobedo

raionale, the Supreme Court used the privilege against

self-incrlmlno,tion as the basis for barring the use of the

confessions. After considering the conditions assumed to

surround police interrogation. Chief Justice .;arren then

attempted to integrate the Escobedo rationale into consti­

tutional doctrine affecting self-incrimination. He found

that there is a special right to counsel incident to the

privilege against self-incrimln'-tion in the form of the night

to have advice of counsel as to v/hether to answer questions

or remain silent. Thus the need for counsel to protect the

lC- 'T\ f f4 Miranda V. Ari^;ona, 3^1^ U.S. Ii36, [|-38, ( I 9 6 6 ) .

113

Fifth Amendment privilege against self-incrimination

comprehends not merely the right to consult with a la./yer

prior to questioning, but also the right to have the

presence of counsel during any period of questioning the

accused so desires. Briefly stated, the "Miranda Code"

may be summarized as follows: Before police officers may

interrogate a suspect, they must warn him of his right to

an attorney, his right to remain silent, and the fact that

statements may be used against him in court. They must

warn him that he has the right to assistance of counsel

during any period of questioning that he so desires, and

that if he cannot afford a lavyer, one v/ill be appointed

for him. Failure to comply with these guidelines renders

confessions Inadmissible in court because the accused v/as

not afforded the opportunity to exercise his constitutional

rights to the fullest extent.

The same four justices .;ho had dissented in Escobedo

again registered their dissent. Mr. Justice Clark contended

that questions concerning the admissibility of confessions

in court should be decided according to the facts and

circumstances surrounding each individual case. Thus he

preferred the voluntariness test to the Miranda Code. He

stated:

I .vould consider in each case whether the police officers, prior to custodial interrogation, v/arned the suspect of his rignts. In the absence of a warning, the burden vould be on the State to prove

l l l i -

that counsel .-as knov/ingly and intelligently waived, or that in the totality of the circumstances, including the failure to give the warning, the confession was voluntary.1^

Thus the voluntariness test /as superior to the Miranda

Code in that it allov/ed flexible solutions to cases whose

facts and circumstances might be different in nature.

Applying the voluntariness test to the present cases, ;-!r.

Justice Clark disagreed with the decision in the first three

cases and concurred with the results of the Stewart case.

Mr. Justice Harlan, joined by Justices Stev/art and

White, dissented on the ground that the due process clauses

of the Fifth and Fourteenth Amendments govern tne regulation

of confessions, that the privilege against self-incrimina­

tion applies only to courtroom proceedings, and that a

warning of rights is not a part of self-incrimination. In

view of the hazards that the erroneous reasoning of the

majority v/ould impose on lav/ enforcement officers, Harlan

stated:

Nothing in the letter or spirit of the Constitution, or the precedents of this Court, squares with the heavy-handed action which is taken by tne Court in the name of fulfilling its constitutional responsi­bilities. The farce //hich the Court makes Loday brings to mind the v/lse v/ords of Mr. Justice Jackson in Douglas v. Jeannette, 319 U.S. l57: 'Tnis Court is forever adding new stories to tne temole of constitutional law, and temples have a way of collap­sing vhen one too many stories is added. "= ^

^ ^ i b i d . , 38I4. U.S, [L36, 503, (1966;.

^ ^ I b i d . , 381^ U.S. I436, 506, (1966).

115

Mr, Justice White, joined by Justices Harlan and

Stewart, questioned the historical analysis of the privilege

against self-incrimination employed by the majority. He

could not agree with the majority that Bram v. United States

gives precedent to the assertion that there are coercive

influences wnich are to be found in any interrogation by

police officers. He could not agree with the factual assump­

tion that confessions always result from interrogation

during lawful police custody. In applying the "traditional

standards" to the four cases, Mr. Justice V;hite found each

of the confessions to be voluntary and disagreed //ith the 21

decision of the majority in each of the cases.

The objections to Miranda are basically the same as

the objections to Escobedo. The dissenters contend in both

cases that by pulling provisions of the Bill of Rights out

of their normal courtroom context the majority has announced

new procedural guidelines vhich will destroy, for all prac­

tical purposes, the right of police officers to question

suspects before trial and thus will deprive law enforce­

ment officers of a reliable and legitimate method of gaining

evidence against the accused. Certainly the most reliable

piece of evidence available is the confession of the accused.

The interests of society in the suppression of crime and the

apprehension of criminals justifies the use of confessions

2iibid., 38I4. U.S, [ 36, 526-[^[^, (1966).

116

in court, provided that the confessions v/ere voluntarily

given. The factually unsupported, doctrinaire approach

employed by the majority neglects the Important fact that

each case that comes before the Court presents a set of facts

and circumstances different from any previously encountered

by the justices. This fact requires the application of a

pragmatic approach to the disposition of cases, especially

those cases which bear such a tremendous social impact as

do coerced confession cases. Thus failure to comply v/itn

a munite guideline of the ne// procedural rules will bar the

use of a voluntary confession in court, a situation which

can do nothing but harm the interest of society in the

detection and suppression of crime.

Whenever nev/, far reaching procedural rules are

established by the Supreme Court, questions concerning the

possible retroactive effect of these rules usually follow.

The Court established precedent for granting rotroactlve

effect to new procedural rules in Gideon v. Wainwright,

but later the Court refused to grant retroactive effect to

the rules v/hich Incorporated the Fourth Amendment protection

against unreasonable searches and seizures and the Fifth

Amendment privilege against self-incrimination into the

scope and meaning of the Fourteentn Amendment. Thus, v/hen

the Court faced the question of the retroactive effect of

Escobedo and Miranda, it faced two possible alternatives.

117

In Johnson and Cassjdy v. Nev/ Jersey,^^ the Court chose

the latter alternative, ruling that Escobedo and Miranda

were not entitled to retroactive application in cases which

had reached the point v/here the final appeal had been

exhausted prior to the date of the Escobedo and Miranda

decisions. Mr. Justice Black, joined by Mr, Justice Douglas,

again registered his familiar dissent to such decisions.

Black considered the decision to be shocking to any just

man that persons who have been convicted under unconsti­

tutional procedures must remain in prison and possibly face

a death penalty simply because their convictions had become

final prior to the specified dates. 3

Since Escobedo and Miranda did not apply to tnose

cases in which convictions had become final prior to the

announcement of the new rules, the only means available to

defendants wno wished to challenge the use of their confes­

sions in a state court in such cases v/as the voluntariness

test. Thus, in a companion case to Johnson, Davis v. North

Carolina,^ seven justices employed the voluntariness test

to reverse a conviction of an accused person v/ho had been

questioned for a period of two weeks before he finally

confessed to a murder. Mr. Justice Clark, joined by Mr.

'^^Johnson and Cassjdy v. New Jersey, 38I4. U.S. 719 (1966).

^3ibid., 381+ U.S. 719, 753, (1966).

^^Davls V. North C a r o l i n a , 38I4. U.S. 737 (1-^66).

118

Justice Harlan, dissented on the ground that Davis had not

been subjected to "protracted grilling or relay questioning"

on the part of police officers, Mr, Justice Clark's dissent

1^ P^vls merits only a passing reference here, because it

is concerned v/ith a non-recurring issue,

^ ® Miranda Code stipulates that a "mere warning" of

rights does not justify the use of confessions in court,

for if the prosecution attempts to use a confession in court,

it must be able to shov/ that the suspect //as afforded the

opportunity to exercise his rights to the fullest extent.

Thus a warning of rights may not be accompanied by threats

of punishment for remaining silent. These rights are avail­

able to every individual regardless of his occupation. Thus

in Garrlty et al v. Nev/ Jersey^5 the Supreme Court over­

turned incriminating statements elicited from police officers

under threats that they v/ould lose their jobs if they refused

to answer certain questions. Over their objections, some

of the incriminating statements thus obtained .vere used

against the officers in subsequent criminal prosecutions for

conspiracy to obstruct the administration of the traffic

laws. Their convictions v/ere sustained by tne New Jersey

Supreme Court.

On certiorari, the United States Supreme Court

reversed. Mr. Justice Douglas, speaking for five members

^^Garrity et al v. Ne / Jersey, 385 U.S. [|.93 (I967).

119

of the Court, held that the threats of removal from office

deprived the officers of their rightful choice of answering

the questions or remaining silent. This deprivation vlo-

Ikted the Fifth Araendment privilege against self-incrimination,

made obligatory on the states by the due process clause of

the Fourteenth Amendment.

Mr. Justice Harlan, joined by Justices Clark and

Ste /art, dissented on the ground that statements obtained

from officers, under a threat that they were subject to

removal from office if tney refused to answer questions put

to them, are not'inadmissible in court as a matter of law,

and that the particular statements in the present proceeding

.vere voluntarily given. Harlan argued that a state has the

right to set certain standards of conduct for its public

employees, and that states could punish violators of these

standards. The threats of removal from office served as

a means by v/hich the state of New Jersey could, control the

conduct of its police officers. By reversing the conviction

of the officers, the majority had destroyed a method by

.vhich states could insure that their la-.vs would be properly

administered. This destruction was improper because the

majority had no legal or constitutional basis for its

decision. He stated:

I find notning to indicate that these statements ere involuntary, in fact, nor do I find anytnlng in tne con'Utions surrounding the Interrogation v/nlch run contrary to the principles announced in Miranda v.

120

Arizona. The effect of the decision is tnat the privilege against self-incrimination has been im­properly enlianced at the expense of other vital public interests.'^^

Mr. Justice V/hite dissented on the ground that the

question of v/hether statements obtained from public officers,

after a threat "of removal from office, are admissible in a

subsequent criminal proceeding should be decided according

to the facts of each particular case, and that the decision

of the state court,should not be overturned in the present

case. He agreed that in many instances the threat of removal

from office amounts to impermissible compulsion such that

statements thus obtained are inadmissible in a criminal

prosecution. He insisted, hov/ever, that cases of this sort

come in infinite varieties and that the inflexible per se

rule fashioned by the majority was inadequate to properly

handle different varieties of such cases. After careful

consideration of the facts and circumstances surrounding

the present case, Mr. Justice //hite agreed v/ith Mr. Justice

Harlan that the decision of the state courts should not be

overturned,^7

The decision of the majority in Garrlty extended the •

scope of Miranda to bar the admission of incriminating

statements, obtained by the use of threats that officials

who refused to ans /er specific questions woul' be removed

^^Ibid., 385 U.S, 1|93, 50I4-, (1967).

^"^ibid., 385 U.S. [193, 536, (1967).

121

from office, in subsequent criminal prosecutions. The

rationale used by the majority was tnat incriminating

statements obtained in this manner are coerced. The

majority did not touch the question of whether public offi­

cials who refuse to answer questions specifically relating

to the performance of their public duties could be removed

from office. Thus Garrlty does not effect the analysis

of the question of the removal of public officials presented

in Chapter III,

Miranda and Escobedo altered standards for deter­

mining the voluntariness of confessions. These decisions

substituted specific guidelines for determining the admissi­

bility of confessions for the flexible standards of the old

voluntariness test. The rules governing the use of confes­

sions in state courts have undergone another cnange in that

the Court has ruled that before a trial jury can hear a

confession, the trial judge must first determine tne

voluntariness of the confession, ° This decision ..as an­

nounced in Jackson v. Denno and reaffirmed in Sims v.

Georgia, " ^

28 Prior to Jackson v. Denno, 378 U.S. 368 (I96IJ.), states v/ere alio -ed to employ procedures in which the trial jury determined the voluntariness of a confession.

2Q Jackson v. Denno, 378 U.S. 366 (196i|), and Sims v.

Georgia. 385 U.S. 533 (1967).

122

Jackson was arrested and convicted of murder, his

confession having been admitted as evidence. At trial,

he contended that his confession v.as a product of coercion.

Under New York procedure, the trial jury determined the

voluntariness as well as the truthfulness of confessions.

The New York Supreme Court affirmed Jacicson's conviction,

the United States Supreme Court denying certiorari.

Jackson then unsuccessfully sougnt a v/rit of habeas corpus

in the lower federal courts.

On certiorari, the United States Suprevne Court

reversed and remanded the case to the Federal District

Court. Mr. Justice V/hite, speaking for five mem.bersoof the

Court, held that the Ne v York procedure violated the due

process clause of the Fourteenth .kmendment in that the

hearing of confessions prejudiced the minds of the jurors,

and that the contrary decision in Stein v. New York 30

should be overrule^d. Thus Jackson was entitled to a hearing

concerning the voluntariness of his confession, and after

the hearing, he v/as entitled to a new trial.

Mr. Justice Black dissented on the ground that tne

New York procedure did not violate due process. Due to

the fact that the P'ramers of the Constitution had established

trial by jury as a "bedrock safeguard of the people's

liberties". Black questioned the validity of the "strange

3Qstein V. Nev York, 3I4-6 U.S. l56 (1952).

123

new constitutional rule fashioned by the majority. "•''

He argued that the new rule implied that juries cannot be

trusted, an assumption out of keeping with the faith of

the Founding Fathers in trial by jury. Placing his faith

in the ability of juries to independently determine the

voluntariness of confessions, Mr. Justice Black found

nothing inherently unfair in the New York procedure. In

fact, he considered the decision of the majority to be

dangerous in that under the new rule, a confession must

bear a stamp of approval from a trial judge before the jury

can hear it.

Mr. Justice Harlan, joined by Justices Clark and

Stewart, dissented on the ground that states are free to

distribute functions between juries and trial judges as

they best see fit. Mr. Justice Harlan's dissent in Jacks on

closely parallels his reasoning in other stats criminal

procedure cases that the Supreme Court should exercise a

great deal of restraint in interfering with state proce­

dures v/nich conform to the standa 'ds of "fundamental fair­

ness", embraced by the Fourteenth Amendment. He agreed

that a coerced confession may not be any part of the basis

for a conviction in any court, and he agreed that accused

persons are entitled to a fair and reliable determination

3^jackson v. Denno, 378 U.S. 368, kOl, (196I4.) .

12l|.

of his claim that his confession v/as coerced. The central

issue in the instant case, however, was whether the New York

procedure for implementing these tv/o "undisputed axioms"

falls below the standards of fairness v/hich the Federal

Constitution requires of the states. In contending that

the Nev/ York procedure conformed to the standards of

fundamental fairness required by the Fourteenth "miendment,

Harlan stated, "Even under the broadest viev/ of the restric­

tive effect of the Fourteenth Amendment, I would not have

thought it open to doubt that the states are free to allo­

cate the trial of issues in criminal proceedings between

32

judges and juries as they deem best."

The facts and circumstances surrounding Sims v.

Georgia closely parallel those surrounding Jackson v, Denno,

except that in Sims the trial judge had carefully instructed

the jurors that they should-disregard the confession if

they found it to be involuntary. Mr. Justice Clark,

speaking for eight members of the Court, reaffirmed Jackson

v. Denno, holding that even though the jury had been care­

fully instructed, the fact that the -jury heard the confession

was prejudicial to the determination of guilt or innocence.

Mr. Justice Black still professed that he had an "undying

faith in the ability of juries to reliably determine

^^Ibid., 378 U.S. 368, [|.27, (196I4.).

125

the question of the voluntariness of a confession",33 and

therefore dissented from the decision.

In Sims, Justices Clark, Harlan, and Stev/art seemingly

reversed their previous positions, bowing to the precedent

established by Jackson that trial judges must first deter­

mine the voluntariness of a confession before it may be

submitted to a jury. Vihether this change in position

reflects a change in reasoning, or simply adherence to the

doctrine of stare decisis, cannot be determined by the facts

of either case. At any rate, the reasoning behind the

Jackson rule is that if juries determine the question of

voluntariness, there is no record as to their holding.

Thus, .a person whose confession has" been coerced might

conceivably be convicted of the crime to which he confessed.

Such convictions are incompatible //ith the requirements of

the Fifth and Fourteenth vmiendments. Even if the jury

should find that the confession had been coerced, the very

fact that the jurors had heard the confession might influ­

ence their verdict, Mr. Justice Black, however, still

places his faith in the ability of jurors to determine the

voluntariness of a confession, and to mal e tneir decision

accordingly,

Miranda had pulled the privilege against self-

incrimination out of its "traditional" courtroom context.

33sims V. Georgia, 385 U.S. 533, 5M4-, (1967).

126

placing restrictions on the methods used by police to

interrogate witnesses. When any nev/ procedural rule is

established by the Court, questions arise concerning the

possible scope and application of the new rule. Miranda

proved to be no exception to this pattern. The most

pressing questions in the minds of law enforcement officers

concerned the fate of other methods of investigation used

to gain evidence against the accused; in other words, what

was the new scope of the privilege against self-incrimina­

tion, and ho/ would the broadened scope of the privilege

affect the investigatory process as. a whole? In attempting

to ansv/er this question, the Supreme Court nas ruled tnat

the privilege against self-incrimination is not "all

inclusive", in relation to the various methods associated

with the investigatory process. The privilege applies

only to those phases of criminal investigation in which the

prosecution attempts to elicit evidence of a "testimonial

or communicative nature" from the accused.

One of the questions left unansv&red by Miranda con­

cerned tho constitutionality of tne withdrawal of blood from

an individual and the use of the results obtained from an

analysis of the blood in court. . Prior to Malloy v. Hogan,

and Mapp v. Ohio, the Court had upheld the use of blood

tests in court on grounds that the exclusionary rule v/hlch

ivould govern the use of blood tests in federal courts did

127

not apply to the states.3l - in viev of Mapp and Malloy

and the new principles announced in Miranda v. Arizona,

the Court granted certiorari to Schmerber v. California.35

Schmerber was convicted in a Los Angeles court for driving

an automobile while tmder the influence of intoxicating

liquor. After his arrest, while he was in a hospital

receiving treatment for injuries incurred in an automobile

accident, a blood sample was drawn from the defendant by a

physician, under the direction of police officers who were

acting v/ithout a warrant, despite the refusal of the

defendant, on the advice of counsel, to submit to the test.

The results of the test. Indicating intoxication, were

entered as evidence at the trial, over Schvaerber' s objections

that the introduction of the evidence violated his protection

against unreasonable searches and seizures, nls privilege

against self-incrimination, and his right to assistance of

counsel. The California Supreme Court affirmed nls convic­

tion.

On certiorari, the United States Supreme Court

affirmed. Mr. Justice Brennan, speaking for five members

of the Court, held that the privilege against self-

incrimination applies only to those instances where the

prosecution attempts to elicit eyidenc.e-„of a testimonial

^^Breithaupt v. Abrams, 3p^ U.S. [{-32 (1957).

3^Schmerber v. California, 38I4- U.S. 757 (I966).

128

or coimnunicative nature from the accuoed, and that blood

samples cannot be classified as evidence of a testimonial

nature. Moreover, since the test was administered by a

qualified physician in a hospital environment, the taking

of the blood did not constitute an unreasonable search

seizure. Since Schmerber's Fourth and Fifth Amendment rights

had not been violated, his counsel had no cause to object

to the blood test; consequently, Schmerber had not been

denied his right to assistance of counsel. Justices Harlan

and Stev/art concurred with the decision and stated that in

no way was the Fifth Amendment implicated.

Relying on his dissent in Breithaupt v. Abrams, Chief

Justice Warren contended that the v/ithdrawal of blood from

an accused person violates his privilege against self-

incrimination and his Fourth Amendment right to privacy.

The invasion of one's body transgresses the Fourth Amendment

requirement that persons shall be secure in their persons,

in that an intrusion into one's body, no matter ho; slight,

amounts to an invasion of his privacy. He did not elaborate

concerning the contention that the withdrawal of blood

violated Schinerber's privilege against self-incrimination,

but stated that he fully agreed with the opinion of Mr.

Justice Black.3^

Mr. Justice Black, joined by Chief Justice ..arren and

Mr. Justice Douglas, agreed with the principle that the

3^Schmerber v. California, 38I4.U.S, 757, 772, (19ob).

129

privilege against self-incrimination applies only to evi­

dence of a testimonial or communicative nature, but they

could not agree that the withdrawal of blood, and tiie use

of the analysis of the sample in court did not amount to

an attempt of the part of the prosecution to elicit evidence

of a testimonial or coromunicative nature. Since an analysis

of a blood sample is considered to be conclusive evidence

of guilt, Mr, Justice Black could not see ho// the analysis

of a blood test differed from a confession. Since the

withdrawal of blood amounts to the same thing as eliciting

a confession from the accused, the privilege against self-

incrimination should apply to the withdrawal of blood.

Black thu: criticized the majority for "giving the Bill of

Rights' safeguard against compulsory self-incrimination a

construction that would generally be considered too narrov/

and technical, even in the interpretation of an ordinary

cominercial contract, "37

Mr, Justice Douglas dissented on the further ground

that the blood test violated Schmerber's Fourth and Fifth

Amendment rights to privacy. He again asserted nls familiar

view that the Fourtn and Fifth Amendments create "zones of

privacy" which government cannot invade under any circum­

stances. To force an individual to surrender nis rignt to

privacy violates the very purpose for ./hich the Bill of Ri£hts

37ibid., 381 U.S. 757,778, (1966).

130

was created: to protect the rights of individuals from

arbitrary abuse by government. He could find no clearer

invasion of privacy than the "forcible blood-letting of

the kind involved here."3^

Mr. Justice Fortas dissented on the ground that the

blood test violated the due process clause of the Fourteenth

Amendment, He stated that the privilege against self-

incrimination applies to the instant case, and added that

under due process, the state, in the role of a prosecutor,

has no right to extract blood from the accused, or any

other person, over his protest.39 He thus argued that due

process of lav/ requires compliance v/ith procedural require­

ments before a state can deprive a person of his liberty

or property. Here, the fact that Schmerber had not consented

to the extraction of his blood required tne police officers

to follov/ procedural regulations before extracting the

blood. The proper procedure v/ould have been to have obtained

a court order or a v/arrant justifying the extraction of

blood. The fact that this was not done denied Schmerber

due process of law.

Thus Mr. Justice Brennan joined the dissenters in

Miranda to place restrictions on the protection offered to

suspects by the privilege against self-incrimination, holding

38ibid., 38I1- U. >. 757, 778, (1966).

39ibid., 38I4. U.S. 757, 779, (1966).

131

that the privilege applies only to evidence of a testimonial

or communicative nature. The dissenters agreed with the

majority on this point, but disagreed with the decision that

none of Schmerber's constitutional rights were violated.

Chief Justice Warren argued that the extraction of blood

amounted to an unreasonable search and seizure. Mr. Justice

Black could not see that the blood test differed from

eliciting evidence of a testimonial nature and that Schmer­

ber' s privilege against self-incrimination was not applicable.

Mr. Justice Douglas contended that the forcible blood-letting

invaded zones of privacy which government could not

constitutionally invade. Mr. Justice Fortas labeled the

extraction of blood over the protest of the accused as a

denial of due process of law. For these reason:; four

justices dissentod in Schmerber v. California.

The Supreme Court has used the Schmerber "communi­

cative or testimonial evidence" rationale in recent cases

involving claims that investigating officers denied the

accused-his privilege against self-incrimination, but the

Court has seemingly backed away from the implications of

Schmerber that v/hen counsel for the defense has no

constitutional grounds for objecting to a method of investi­

gation, the use of that particular method by police officers

does not deprive the accused of his right to counsel. The

Court has ruled that the right to counsel and the privilege

against self-incrimination exist independently of each

132

other, such that one privilege does not have to be

applicable to a particular situation in order for the other

privilege to exist. Such a rationale has been used by the

Court in two recent cases, United States v. Wade and Gilbert

v. California, cases involving lineup identifications made

in the absence of coun.oel.^^ Two weeks after Wade's arrest

on charges of robbing an East Texas bank, an F.B.I, agent,

without notice being given to Wade's lav/yer, arranged to

have too of the bank's employees observe a lineup made up

of V/ade and six other prisoners. The men were compelled to

wear clotning fitting the description of that v/orn by the

robber and v/ere compelled to utter the words, "put tne money

in the bag." Both eriployee.: Identified Wade as the robbei'.

At trial, the employees again identified ^ ade as the robber,

and upon cross-examination, elicited testimony concerning

the prior lineup identification. The Circuit Court of

Appeals reversed V/ade's conviction, holding that t he lineup

identification, made in the absence of Wade's lawyer, vio­

lated his privilege against self-incrimination and his right

to assistance.of counsel.

On certiorari, the United states Supreme Court

vacated the judgment of the two courts belov/ and remanded

the case to the Federal District Court for furtner proceed­

ings consistent v/ith this opinion. In considering .ade's

^Ounited States v. V/ade, 35 L.W. I4.597 (1967) and Gilbert V. California, 33 L..-. l|.6ll|. (1967).

133

claim that he had been denied his privilege against self-

incrimination, Mr. Justice Brennan applied the Schmerber

rationale to nis situation. Brennan found tnat Wade v/as

not compelled to furnish the prosecution with evidence of

a testimonial or communicative nature, thus his privilege

against self-incrimination had not been violated. He fo\ind,

however, that lineup identifications are a critical stage

of criminal prosecutions and that defendants snould enjoy

the right to assistance of counsel during lineups. Thus

lineups conducted in the absence of counsel for tne defense

violate the defendant's right to assistance of counsel.

Brennan did not fasnlon an exclusionary rule per se; instead

he remanded the case 'to the District Court in order to give

the Government the chance to prove that the lineup

identification had no bearing on the outcome of the trial.

Mr. Justice Clark concurred /vith the opinion of the Court.

Chief Justice V/arren, joined by Justices Douglas and Fortas,

concurred with the results, but insisted that the lineup

identification, conducted in the absence of counsel for the

defense, violated Wade's privilege against self-incrimination.

Mr. Justice Black agreed with Chief Justice ..arren

that Wade's privilege against self-incrimination had been

violated and tiiat the evidence obtained at the lineup

identification was inadmissible in court. He agreed with

the majority that lineup identifications are critical stages

of a criminal prosecution. He agreed that Wade's right to

131

assistance of counsel had been denied, but he criticized the

reasoning employed by the majority in reaciiing this decisiun.

He stated:

I agree that presence of defense counsel at the lineup is necessary to protect the accused's right ^o a ,f, ir trial, only if by fair trial the Court means a trial according -co the Lav/ of the Land as established by the Constitution of the United otates. There are implications m the opinion of tne Court that the determination uf what a fair trial is win be left to the day-to-day whims and altitudes of tnis Court.H-1

As to the results of the decision, Mr. Justice Black noted

that the prosecution had made no attempt to introduce .tne

evidence obtained during the illegal lineup in a court, •:

Since tne prosecution had not attempted to use the evi­

dence illegally obtained, there v/as no reason to reverse

V/ade's conviction. He stated:

I am unwilling to tell tne state or federal -court:-, that the Constitution forbids their alioving in-court identifications v/ltiiout the prosecution first proving that tiie identification does not rest in whole or in part oh an illegal lineup identification. Snould I do so, I feel that I vould be deciding what the Constitution is, not by v.hat it s-ys, but by v/hat I thin': it ./ould. hav - been v;ioe for tne framers to have put into it. *

Mr. Justice V/hite, joined by Justices Harlan and

Ste//art, dissented on the ground that V/ade had not boon

denied effective assistance of counsel. Mr. Justice V/nite

argued tnat tne majority had used an uncritical and factually

^lUnlted States v. V/ade, 35 L. W. li-597, I1606, (1967).

^^Ibld., 35 L;W. I4.597, I4-6VJ7, (1967).

135

unsupported approach in order to bar the use of a wide

range of relevant and reliable evidence "simply because a

step in its ascertainment occurs in the absence of coun­

sel. "M-3 He construed the decision of the majority as barring

courtroom identifications if pre-trial identifications have

been made in the absence of counsel for the defense. He

doubted that the new rule would measurably improve the

difficulties inherent in the truth-finding process and v/ould

hamper the interest of the state in speedy and efficient

law enforcement and its reliance on witnesses to prove

innocence as ./ell as guilt.

Thus the court ruled that the accused is entitled

to the assistance of counsel during a lineup identification,

but that his privilege again::-t self-incrlmlnotion is not

violated if the lineup la conducted in the absence of

counsel. In Gilbert v. California, the Court reached the

same conclusion concerning lineup identification, and

further limited the scope of the privilege against self-

incrimination so as to exclude from the coverage of the

privilege the furnishing of handwriting samples to in-

vestigating officers. Gilbert ./as arrested by P.B.I.' agents

in Philadelphia in connection -ith a robbery and murder

which had occurred in California. In the absence of coun­

sel for the defense, he was compelled to furnish the agents

^3ibid., 35 L.W. 1|.597, 6u9, (1967).

136

olth a sample of his handwriting. He was then transported

to California where he was indicted and furnished with a

ia//yer. Shortly thereafter, he was subjected to a lineup

identification, without notice, and in the absence of his

lawyer. At trial he sought to bar tne in-court identifi­

cations of the witnesses who had observed the lineup. He

also sought to bar the admission of the handwriting sample

as evidence, contending that the admission of the handwriting

sample as evidence violated his privilege against self-

incrimination. Both requests v/ere denied, and his conviction

was affirmed by the California Supreme Court.

In delivering the Opinion of the United States

Suprene Court, Mr, Justice Brennan rejected both of Gilbert's

contentions relating to the admission of the handwriting

samples as evidence. He held that the lineup, held in the

absence of defense counsel,-violated Gilbert's right to

assistance of counsel and thot the evidence obtained

thereof, including the in-court identifications of the

witnesses who had observed the lineup, should not have

been admitted as evidence. The judgment of the California

Supreme Court and the conviction were reversed and the

case was remanded to that Court for further proceedings

not inconsistent witn the opinion expressed above. Mr.

Justice Black, joined by Mr. Justice Douglas concurred with

the results, but stated that the lineup identification and

137

the taking of the handwriting sample violated Gilbert's

privilege against compulsory self-incrimination, Mr.

Justice Fortas, joined by Chief Justice V/arren concurred

with the results, but stated that he would reverse and

remand the case on the additional ground that the petitioner

was entitled by the Sixth and Fourteenth Amendments to be

advised that he had the right to counsel before his response

to tthe demands of the prosecution for a handwriting examplar.

Chief Justice V/arren also added that the taking of the hand­

writing sample violated Gilbert's privilege against self-

incrimination. Mr. Justice Vhite, joined by Justices Harlan

and Stewart, dissented for the same reasons stated in his

dissent in United States v. Wade. V/hite contended that the

decision severely hampered the interest of the state in

speedy and efficient law enforcement and its reliance on

v/itnesses as a source of evidence.^

The Court immediately announced that the nev/ Wade

and Gilbert rule was not entitled to retroactive application;

that the new rule applies only to those cases in which the

lineup occurred after June 12, 1967, the date of the

decisions; and that habeas corpus petitioners wno claim that

their convictions were based on illegal lineups held before

June 12, 1967, vj-.ere not entitled to relief,M-5

^Gilbert v. California, 35 L. W, I6llj., 1 .622, (I967).

^^Stovall V. Denno, 35 L. W. iv6lO (I967) .

138

Stovall was arrested for murder and attempted murder

and v/as taken to a hospital, in the absence of his counsel,

where he was identified as the assailant by one of the

victims. His subsequent conviction v/as based in part on

the in-court identification of that witness. The United

States ruled that the V.'ade and Gilbert rule was not entitled

to retroactive application and that Stovall, whose conviction

was final, was not entitled to relief.

Mr. Justice Douglas dissented on the ground that the

deprivation of the right to counsel in this case should be

given retroactive effect as it was in Gideon v, V/alnwright.^

Mr. Justice Fortas would reverse and remand the case on

the ground that the "illegal hospital identification

violated Stovall's Fourteenth Amendment rights" and was

prejudicial. He v/ould not reach the question of the retro­

active effect of V/ade and Gilbert. •' Mr. Justice Black

dissented for the same reasons stated in his dissent in

Linkletter v. Walker.H-" He v/ould reverse and remand the

case for reconsideration of whether the out of court identi­

fication, was, under Chapman v. California,^/ harmless erroc^

^^Ibid., 35 L.W. l|.6io, I4.613, (1967).

I^il-» 35 L.W..I4.610, 1 613, (1967).

^^Linkletter v. Walker, 38O U.S. 618 (I965) .

^^^Chapman v. California, 386 U.S. 18 (I967) .

^^Stovall V. Denno, 35 L.W. [1.61O, k^ll\., (I967) .

139

The cases presented in this chapter again reflect the

high regard of the Court for the procedural rights of indi­

viduals accused of crime, as opposed to the attempts of

law enforcement'officers to gain evidence against the accused.

The Court has pulled the privilege against self-incrimina­

tion and the rignt to assistance of counsel out of their

traditional courtroom contexts in order to safeguard the

rights of persons accused of crimes. A person taken into

custody nov/ enjoys tJie right to remain silent and the right

to consult 7/ith a lav/yer during any period of questioning

he so desires. He must be warne- of these rignts as well

as the fact that statements may be used against nim in

court. His privilege against self-incrimination protects

him from being compelled to provide the prosecution v/lth

evidence of a testimonial or communicative nature in any

form. His right to counsel exists at every critical stage

of the prosecution, from the time he is tanen into custody

through at least his first appeal, Althougii his privilege

again-:t self-incrimination and his right to counsel are

closely related, these two provisions of the Bill of Rights

operate independently, such that where one does not protect

the accused the other might conceivably do so, Tnese

rights exist regardless of whetner one has been accused of

a state or federal crime, and these rignts exist regardless

of whether one is a public official, an average working

114-0

citizen, a pauper, or a juvenile. •'- It is highly probable

that every conceivable method used by police officers in

the attempt to obtain evidence against the accused will

eventually come before the scrutiny of the Court, and it

is highly probable that the Court will deal generously vith

the claims of the accused that tneir rights have been

violated.

The principles announced in Escobedo and Miranda

have become firmly established in the body of American

constitutional law, and it is unlikely that any significant

departure from this rationale will be forthcoming in the

near future. At least tv/o facts tend to support this

conclusion. In the first place, Mr. Justice Clark, ..ho

dissented in both cases, is no longer on the Court, thus

leaving only three dissenters to tnose decisions on the

Court. Secondly, in a recent decision, Clev/is v. Texas,-^

the Supreme Court unanimously reaffirmed Miranda and Escobedo.

Here the Court overturned a conviction based in part on a

confession, the proper warning having been given, because

the defendant nad previously confesseV to the crime in the

5lln a recent decision. In Re Gault, 35 L.W. 1 399 (1967) tno Court extended all of the procedural rignts possessed by adults to juveniles in tneir deallngv witn juvenile officers and courts. Justices Hc rlan and Stev/art dissented on the ground that txie newi rule v/ould be injurious to the administration of juvenile lav/.

^ Clev/ls V. Texas, 35 L.W. I4.37I (I967).

l l l l

absence of a warning. The Court lab-led the admission

of the second confession as a violaclon uf the principles

announced In Escobedo and Miranda. Justices .,nite, Harlan,

and Stev/art, v/ho had dissented in Miranda and Escobedo,

raised no objections whatsoever to the opinion of the Court.

Apparently the objections of these three justices to Miranda

were not so strong as to cause tnem to dissent to the

opinion.

The apparent acquiescence of Justices VVnite, Harlan,

and Stev/art to the principles of Mir an:! a and Escobedo in

Clewis V. Texas does not justify the conclusion that they

will passively accept decisions in v/hlch the majority has

extended Ilranda into new areas. A recent case. Mathis v.

United States,- - suggests that the dissenters in Miranda

will register dissents vhenever the Court extends 'vliranda

into nev/ areas. Here the majority held that the Fifth

Amendment bars the admission of incriminating.statements

and documents obtained from a state prisoner in a "routine"

tax investigation by federal internal rev:inue agents who

had failed to give the Miranda warning. Mr. Justice White,

joined by Justices Harlan and Stewart vigorously dissented,

contenUng that the decision vould be harmful to the

administration of federal tax lavs. He stated tnat he

had dissented in f 11ran"a because the Court's interpretation

of the Fifth Amendment privilege against self-incrimination

53[;iatnis V. Unite- States, 36 L.W. 1 379 (I968).

11 2

was unsupported by either the history or tne language of the

privilege, and that he would prefer that Miranda be over­

ruled. He added that even if he could agree with that

decision, he could find no grounds for its unwarranted

extension here. He concluded by stating that the interviev/

in question was merely an attempt on the part of Federal

Internal Revenue agents to settle a civil account bet./een

a citizen of tne United States and his Government, and

should be treated as such.^"

Thus, if the majority does not attempt to ext. nd

Miranda into nev/ areas, the dissenters in that decision

seem v/illlng to use that decision as a suitable criterion

for basing their judgment. If the majority extends tne

Miranda Code into new areas, hov/ever, the dissenters voice

their objections, not only to the extension of the rule,

but also to the rule Itself. There- is no reavon to believe

that this pattern .vlll not continue in the future.

Thus the Miranda Code -ill probably undergo no

drastic changes in the near future. Of som.e doubt, hov/evor,

is the status of the reasoning behind Scn.ierber v. Co.llfornia,

Here five Justices, Mr. Justice Clark being one of them,

ruled that the v/lthdrawal of blood, un er specified Con­

di tlono, does not violate any of tne procedural rights of

the accused. Mr. Justice Marshall's reputation an" back-

^ /latnis V. United States, 36 L.W, 1 379, 14-382, (I968).

113

ground indicate that his views concerning individual rights

roughly correspond to those of Mr. Justice Douglas.55

Thus v/hen Mr. Justice Marshall replaced Mr. Justice Clark

the four dissenters in Schmerber v. California may h.ave

gained an ally.

The blood test is apparently safe for the time

being, for Congress has declared it to be an essential

tool of police investigation. However, the Court hcLS

employed the Schmerber retlonale in holding that tne privi­

lege against self-incrimination does not extend to ./itness

identifIcativns.' These cases. Wade-and Gilbert, were

decided v/hilo Mr. Justice Clark v/as still on the Court.

Again four justices disagreed v/ith the holding that the

privilege against self-incrimination does not extend to

v/itness identifications. Had Chief Justice V/arren, one of

these four Justices, not recently announced his forthcoming

retirement, one might readily assume that such a line of

reasoning might be abandoned by the Court. In viev/ of tne

Chief Justice's announced retirement, however, the only

justifiable assumption that can be made is that every tool

used by investigating officers involving a direct confron­

tation betv/een the suspect and tne officers v/111 come

^5A basis for this assumption wa: furnished by Mr. Justice Brennan v/ho was a guest r peaker at the Texas Tecn-nological College University Speakers' Series in November of 1967. He gave this ansv/er in response to a question put to nim concerning tne effect that n. Justice Marshall's appointm nt to tne Court /ould have on tho Court's attitu-'e tov/ard in^'ivldual rights.

110+

before the scrutiny of the Court, and the outcome of these

decisions will depend to a great extent on the attitudes

of Mr. Justice Marshall ano whoever replaces the Chief

Justice on the Court.

CHAPTER V

CONCLUSION

One of the basic assumptions of this work is that

criminal procedure cases evidence a conflict between the

procedural rights of individuals and the right of society

to protect itself against crime. In every criminal proce­

dure case that comes before the Supreme Court, tne Justices

must, within the framework of the Constitution, vote either

for the state or for the individual. Each case presents a

question v/hlch the justices must attempt to answer: can

the Court uphold the claim of the individual /itnout

materially damaging the Interest of society; or where is

the point at which the interests of the Individual becom.e

subordinate to to^ Interests of society? A basic tenet of

American democracy is that the ans.vers to this question are

to be found in the provisions of the Constitution, especially

in the Bill of Rights. It is this question, in conjuiiction

with attempts to ansv/er it, wnich fosters disagreement

among the justices serving on the Court. Because there are

too competing elements in each criminal procedure case,

disa'greement vdth particular decisions is expressed in t/ o

different forms. First, tlhere is the contention, expressed

11+5

114.6

most frequently by Mr. Justice Harlan in the form of a

dissenting opinion, that the Court has gone too far in its

attempt to protect the rights of the individual and has

imposed an intolerable burden on the instruments created

by society tq,p,rotect and preserve its integrity. Secondly,

there is the opposite vle-v, stated most frequently in the

dissents of Mr. Justice Douglas, that the Court has failed

to live up to its task of protecting the rights of

individuals, guaranteed by the Bill of Rights, against

arbitrary abuse by government. How does the Court stand in

relation to the conflict, hov/ would each justice go about

solving the conflict, and how will the Court attempt to

resolve the conflict in the future; these are the questions

which an analysis of disagreement and dissent help to

answer.

Table 1 indicates that the Court has been rather

reluctant to uphold the claims of individuals that police

officers have violated their protection against unreasonable

searches and seizures. The Court upheld the claim of the

individual in only six of the nineteen search and seizure

cases. The defendant's chances of having his conviction

The model used in the construction of these scalo-grams resemibles that used by Glendon A. Schubert in his work. Quantitative Analysis of Ju iclal Behavior, Lansing, Mlcnlgan: Mlcnigan State University, (1939), PP. ^71-35l. A CR rating of .90 indicates that tne scale in reliable for statistical purposes.

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List of Cases

Table 1

1 Mapp V, Ohio, 367 uJs. 6i|.3 (1961)

2 Cleary v. Bolpjer. 371 U.S. 39I4- (I962)

3 Lopez V, United States, 373 U,S. 1|.27 (1963)

k Fahy v. Connecticut, 375 U.S. 85 (1963)

5 Ker V. California, 37!]. U.S. 23 (1963)

6 Rugendoef v. United States, 376 U.S. 528 (19614.)

7 Agullar V. Texas, 378 U.S. IO8 (196! )

^ Beck V. Ohio, 379 U. >. 89 (1961 )

9 United States v. Ventresca, 380 U.S. 102 (1965)

10 Linkletter v. Walker, 38I U.S. 618 (1965)

11 Angelot V. Fay, 381 U.S. 651- (19o5)

12 Lewis V. United States, 385 U.S. 206 (I966)

13 Osborn v. United States, 385 U.S. 323 (I966)

llj. Hoffa V. United States-, 385 U.S. 293 (1966}

15 McCray v. Illinois, 35 Law Week 1.261 (1967)

16 V/arden v. Hayden, 35 Law V/eek l\h,93 (I967)

17 Cooper V. California, 35 Law Week [i209 (1967;

18 Berger v. New York, 35 Law Week k6I|.9 (1967)

19 Katz V. Unite-: States, 36 Law keek 1].080 (1967)

ll|9

reversed on grounds that evidence obtained and used against

him v/as the product of an unreasonable search and seizure

have not measurably improved in recent years, for in a

survey of twenty-five similar cases decided from 1937 to

1957, Schubert found that the Court upneld tne claim of the 2

individual ten times.

Since 1961, the Court has considered twelve state

search and seizure cases, v/hile it considered six state cases

from 19I4-9 to 1957.^ The Court favored the defendant in

five of the 1961-I968 cases, //hlle it favored tne defendant

in only one of the 19[|.9-1957 cases. Thus tne effect of the

incorporation of the Fourth Amendment into the Fourteenth

Amendment on state search and seizure cases has been to

increase the number of such cases heard by the Court and to

enlarge, to a certain extent, the restrictions placed on

the conduct of state police-officers. Although Mapp v. .

Ohio^ and subsequent decisions have imposed federal standards

on state searcn and seizure cases, there is no reason to

anticipate a noticeable rise in tne percentage of state

convictions .vhich ./ill be overturned as a result of the

ne..' ruling. This assumption is justified by the fact that

the Supreme Court favored the defendant in only one of the

" Ibid. , p. 3I4-7.

^Ibld.,

^Mapp v. Ohio, 367 U.S. 61 3 (196l) .

i5o

seven federal cases considered between I961 and 1968.

Perhaps the chief source of disagreement concerning

the disposition of search and seizure cases may be found

in the question of whether to consider each case according

to the fadts and circumstances surrounding each individual

case, or to give a strict meticulous construction to the

standards of the Fourth Amendment. Four of the six marginal,

ol? five-to-four, decisions occurred in cases where the

central issue involved the interpretation of the Fourth

Amendment standards relating to reasonableness and probable

cause. A "facts and circumstances" approach tends to favor

the claims of the state over the claims of the individual;

while a "strict meticulous" approach tends to favor indi­

vidual procedural rights over the contentions of the :• ..-

prosecution. For instance, when the Court, in Agullar v.

Texas, overturned evidence obtained in a search of the

defendant's house because the officers could not show

probable cause, Mr. Justice Clark criticized the majority

for "imposing a rigid academic formula on the unrigld

standards of probable cause, "" Conversely, when the Court,

in IcCray v. Illinois, upheld a v/arrantless arrest and

search and ruled that the prosecution did not have to

produce the informer, on v/hose Information the arrest and

search had been initiated, in court for cross exaninatlon.

^Agullar V. Texas, 378 U.X. IO8, ll5, (196I|.).

151

Mr, Justice Douglas contended that, "Fourth Amendment

standards of reasonableness and probable cause must be

given a strict meticulous construction or else the Fourth

Amendment will be placed in the custody and at the tender

mercy of the police."

Generally, the Court had adopted the "facts and

circumstances" approach in the disposition of search and

seizure cases. Accordingly, Mr. Justice Douglas, and to

a lesser extent Chief Justice Viarren and Justices Fortas,

Brennan, and Goldberg, have been the most frequent dissenters

in search and seizure cases. Justices Clark, Harlan, Stewart,

and White have formed the majority more often than not.

The key figure in the marginal decisions has been ?ir.

Justice Black. His view that the Fourth Amendment should

be interpreted according to the specific language of that

Amendment has thus upheld the assertion that search and

seizure cases should be decided in view of the totality

of the facts and circumstances surrounding each case.

In sharp contrast to the negative "facts and circum­

stances" approach which controls search and seizure cases,

stands the sympathetic view of the Court toward defendants

who have claimed that their privilege against self-incrimi­

nation and/or their right to assistance of counsel have been

violated during some phase of their prosecution. Table 2

^McCray v. Illinois, 35 L.W. I 26l, [|.266, (I967) .

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List of Cases

Table 2

1 Douglas V. California, 372 U.S. 353 (I963)

2 Hardy v. United States, 375 U.S. 277 (1961|.)

3 Massaiah v. United States, 377 U.S. 201 (196^)

1. Anders v. California, 35 Law Week i|385 (1^67)

5 In Re Gault, 35 Law Week l|-399 (I967)

6 Hurgett V. Texas, 36 Law Week l|.0ll|. (I967)

7 E s c o b e d o v. I l l i n o i s , 378 U . S . 14.78 (19614.)

8 M i r a n d a v. A r i z o n a , 38[j. U . S . l\.36 (196I4.)

9 Johnson an ^ Gas sidy v. New Jersey, 36/4- U.S. 7l9 (I/60)

10 Davis V. North Carolina, 38k U.S. 737 (1966}

11 G a r r l t y et al v. New Jersey, 3 8 5 U . S . i|l{.3 (I967)

12 J a c k s o n v. D e n n o , y ( 6 u.:s. 3bd (19bi4.j

Ijj bims V. ueorgia, 3 5? U.S. 33^ UVb7;

iq- Schmerber v. California, 33L U.S. 75^ (1966)

15 Malloy V. Ho^m, 373 U.S. 1 (1961L)

16 Griffin V. California, 3SU U.S. 609 (1965)

17 Chapman v. California, 386 U.S. Ic (I967;

1^ Tehen v. Snott, 382 U.S. I4.06 (1: 63)

19 bpevacK v. iileln, Jbi? U . S . i?ll (1967)

20 Unite' States v. Wade, 35 La i v eek 1L597 (1967)

d l Gilbert v. Califo.-nia, 35 La^ Week l\.blh^ (I967)

22 Stovall v. Denno, 35 Law Week l|-6lO (I967)

23 Mathls V. United States, 36 La-i Week I|-379 (I968)

2[|. Garnett v. United S t a t e s , 36 L a ^ '//ee.-: ii. 27 (I968)

156

indicates that the Court has ruled in favor of the

defendant in tv;enty of twenty-four such cases decided

since 1963, Three of the four "rejects" were based on

the Court's refusal to grant retroactive application to

new procedural rules, rather than on the ruling that defen­

dants' constitutional rights had not been been violated.

Tables 2-A and 2-B divide the master scale into "courtroom

procedure" and "investigatory" cases respectively. The

term "courtroom procedure" is used to describe a group

of cases in which the defendant claimed that at some time

during the judicial phase of his prosecution (judicial

inquiry, indictment, hearing, trial, or appeal),- nls right

to assistance of counsel or his privilege against self-

incrimination had been violated, and the term "investigatory"

describes a group of cases in v/hlcn the defendant claimed

that his rights ./ere violated during Interrogation or

investigation.

The Court has adopted fixed, rigid formulas for the

disposition of the courtroom proce< ure cases, formulas

which tend to favor the individual; ' Accordingly, the Court

ruled in favor of the individual in nine of the ten court­

room procedure cases, the only exception being tne ruling,

over the objections of Justices Black and Douglas, that

the new rule governing unfavorable com..ients concerning txie

failure of the ac' used to testify /as not entitled to

retrospective a^nlication. Tne Court has aban^one-' tne

157

premise that the right to counsel and .the privilege against

self-incrimination are not absolute in state prosecutions,

and has imposed federal standards governing these guarantees

of the Bill of Rignts on the states. The only possible

exception to this rule may be found in the assistance of

counsel cases in v/hich the crime with .vhich the defendant

has been charged is not of a serious nature. A.pparently,

the Court intends to decide the question of seriousness in

a case-by-case manner.'

There seems to be lacking in these cases a single

recurring issue which fosters disagreement on the Court.

Mr. Justice Harlan has been the only consistent dissenter.

His views concerning the state cases can be summed up in

his statement that, "I do not understand how the process

of examination, . . , can be short-circuited by the

wholesale incorporation into the meaning of due process,

without critical examination, of tne uhole body of law

which surrounds a specific prohibition directed against

the federal government." However, Mr, Justice Harlan

has abandoned this view, bowing to -the doctrine of stare

decisis, in at least one case. Justices Clark, .*hite, and

Stewart prefer the "facts and circumstances" approacn in

^United States Supreme Court Reports, 9 L Ed. 2d 1235 (1963), Annotation: "Tne Right To Counsel In Federal And State Prosecutions".

8,., Malloy V. Hogan, 370 U.S. 1, 23, (1961|.) .

158

in these cases. Their use of this approach accounts for

five of the inconsistencies appearing in Table 2-A, They

seem to pursue an independent course in the disposition

of these cases and often these three justices do not agree

among themselves concerning the proper disposition of a

particular case, Mr, Justice Black's "specific language"

approach accounts for three inconsistencies appearing in

Table 2-A, He will agree with the majority up to the point

where he believes that the majority has attempted to rev/rite

the Constitution.

The investigatory cases evidence a recurring issue

whicn tends to divide tne Court. Disregarding the question

of retroactivity, the only instance in which the Court

failed to uphold the claim of the individual occurred in

Schmerber v. California, vhere the Court ruled that the

withdrawal of blood from a Suspect does not violate his 9

constitutional rights. Here tne Court has fasnioned the

Miran • a Code, viilch requires rederal and state officers to

follow specific guidelines during the interrogation of

suspects. Generally, Justices Harlan, White, Stewart, and

Clark have dissented from such reasoning on the grounds

that the r^octrinaire, factually unsupportable approacn

employed by the majority will seriously hamper the Interests

of society in speedy and efficient la.' enforcement. Table 2-B

^Schmerber v. California, 3S[|. U.S. 757 (1966).

159

indicates a high degree of agreement between Justices

'vVhite, Harlan, and Ste./art, and to a lesser extent Clark.

Here Mr. Justice Black's "specific language" approach

accounts for three Inconsistencies. Here the key figure

in what limitations have been imposed on the Miranda Code

has been Mr. Justice Brennan. Expressing a rather restric­

tive view of what constitutes evidence of a testimonial

or communicative nature, he has joined the dissenters in

Miranda v. Arizona, to place limitations on the scope

•of the privilege against self-incrimination. Mr. Justice

Brennan's "switch" occurs in Schmerber and extends to

subsequent decisions.

If, in the v.ords of Mr. Justice Black, the Fourth

and Fifth (and possibly the Sixth) Amendment provisions

of the Bill of Rights overlap in many instances, why does

the Supreme Court seemingly employ different approaches

in the interpretation of these Amendments? One possible

ans '.er may rest in the language of the .Amendments them­

selves, 12 The Fourth Amendment does not void searches and

seizures per se; rather, it demands that "The right of the

people to be secure . . , against unreasonable searches

•'" Miranda v. Arizona, 38l|. U.S. I136 (I966) .

^^Mapp V. Ohio, 367 U.S. 6I4.3, 67O, (1961).

12 James George Jr., Con-tltutional Limitations on

Evidence in Criminal Cases, (Ann - r.or: Institute of Continuous Legal Education, I966), p. 29.

i6o

and seizures shall not be violated, and no warrant snail

issue but upon probable cause, supported by Oath or

affirmation and particularly describing the place to be

searched and the persons or things to be seized." On the

other hand, the language of the Fifth and Sixth Amendments

is absolute. The Fifth Amendment states in part that

"No person . . . shall be compelled in any Criminal Case

. . . to be a witness against himself . . ,", and the

Sixth Amendment commands, among other things, that "in all

criminal prosecutions the accused shall enjoy the right . . ,

to have assistance of counsel for his defense," Thus the

relative and absolute language of the Fourth, Fifth, and

Sixth Amendments respectively calls for different approaches

concerning the interpretation of these Amendments.

Another possible answer lies in tne nature of tne

remedy granted to Individuals .hose Fourth, Fifth, and,

in certain instances. Sixth . imendment rights have been

violated, namely the exclusionary rule. Tne evidence

which may be excluded in the search and seizure cases

differs in nature from the evidence which may be excluded TO

by the Fifth Amendment. - The Fifth Amendment privilege

against self-incrimination Involves a direct confrontation

between the prosecution and the accused; while the Fourth

Amendment protection against unreasonable searches and

seizures Involves papers, notes, recorded conversations, etc.

^^Ibld., p. 69.

l6i

Certainly the evidence excluded by the Fifth Amendment,

coerced confessions for example, is more damaging to the

assumption that the accused is innocent than is a gun or

clothing allegedly belonging to the accused. Also, the

evidence protected by the Fourth Amendment may be of an

illusive nature. Modern means of transportation afford

the criminal an opportunity to destroy damaging evidence,

or to transport "the fruits of crime" hundreds of miles

away from the scene of the crime within a rela-cively short

period of time. The burden of proof that the accused is

guilty always lies with the state. Since the accused may

remain silent, often tne only means of proving guilt is

to produce the "fruits of crime" in court. It seems only

natural that the Supreme Court would place less severe

restrictions on the attempts of officers to discover the

fruits of crime than on attempts to elicit incriminating

statements from the giccused.

The outcome of every decision ultimately depends

on the individual votes of the nine justices on the Court,

Each judge must weigh the elements surrounding each case

and then detsrxmine their significance. Often this process

is effected by a judge's philosophical convictions about

the functions of law and the duties of judges in the legal

universe, the proper interpretation of the Constitution and

the statutes, and of the values and policies of society

l62

which lay behind them.- ^ If the criminal procedure cases

reflect the philosophies of the justices, perhaps a brief

examination of the philosopny of each justice will help

explain these decisions and future decisions as well.

Table 3 -as designed to measure the sympathy of each

judge toward defendants in criminal procedure cases and

his willingness to dissent from the opinion of the majority.

Tables 3-A, 3-B, and 3-C divide the master table into searcn

and seizure ca. es, judicial cases, and investigatory cases

respectively. They indicate whether a judge's sympathy

toward defendants varies in the disposition of different

types of criminal procedure cases.

Undoubtedly, Mr. Justice Douglas has been tne

champion of individual rights in criminal procedure cases.

Only once has he failed to vote in favor of the individual.

In that one instance, he explained that the Court had

improvidently granted certiorari, but did not elaborate.

Advocating //nolesale incorporation of the Bill of Rignts

into the Fourteenth . miendment, he seemingly falls to

distinguish between state and federal cases. His prime

concern in each case is whether the rights of the accused

have been violated. Perhaps his attitude concerning the

procedural rights of individuals c.n best be described by

^Eugene V. Rostow, The Sovex-elgn Prerogative: The Supreme Court And The Quest For Law, (New Haven and London: Yale Unlver.'.ity press, 1962), p.2.

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l67

his own words: "In all cases the judicial mind must be

interposed between the police and the individual,V"^^

It follows that if police are allowed to use unconstitu­

tional means of gaining evidence against the accused, no

matter how slight the constitutional infraction may be,

our democracy, founded on the principle of individual rights,

v/ill eventually deteriorate into a police state. He

exhibits a rather doctrinaire approach in his fight to

unhold the rights of individuals< An advocate of the

Miranda Code, he is willing to create fixed formulas for

the disposition of all criminal procedure cases. His for­

mulas ultimately depend on the premise that specific

provisions of the Bill of Rights create "zones of privacy"

which government can n'ver invade. He consistently contends

that the right to counsel and tne privilege against self-

incrimination are ab.~olute rights .-hich may not be denle

to any individual under any circumstances. Concerning

searches and seizures, he condemns all searcnes witnout

warrants, and all attempts to gain evidence tnrough electrordc

surveillance. He regards the procedural rights of

indlviriuals so highly that he has dissented in every instance

but one in which the Court has failed to uphold the rights

of the individuals. Thus Mr. Justice Douglas has been the

most frequent dissenter in the search and seizure cases,

^^McCray v. Illinois, 35 L!V/. 1I26I, ^260, (I967).

l68

and has led the majority in the judicial and investigatory

cases, dissenting in the rare instances in .hich the Court

failed to uphold the claims of the defendants in these

cases.

At the opposite end of the continuum stands Mr.

Justice Harlan. His approach to criminal procedure cases

is extremely-pragmatic. V/nile recognizing that the

constitution requires police officers and courts to follow

certain procedural standards, he has consistently dissented

when the Court has established new procedural rules governing

the conduct of police officers and the obligations of state

and federal courts. He contends that tne procedural

provisions of the Bill of hlgnts ./ere created to guarantee

individuals the right to a fair trial and should be

Interpreted as such, P ost of Mr. Justice Harlan's dissents

occur in the disposition of.state cases. He contends that

there are basic differences between state and federal

criminal law enforcement. Such differences are necessary

consequences of our federal system. The Constitution

leaves the states free to establish .procedural rules that

they deem necess.ary, and the United States Supreme Court

should exercise a great deal of restraint in interfering

with the practices condoned by state courts. The Supreme

Court should interfere v/ith the decisions of state courts

only when the defendant has not received a fair trial. In

the disposition of state cases, the Supreme Court should

i69

employ the flexible standards of the due process clause

of the Fourteenth Anendment v/hich are based on the concept

of "fundamental fairness." Thus the Court should not

overturn state convictions simply because the procedure in

question does not conform to federal standards.

Mr, Justice Harlan's approach tends to place the

right of society to apprehend and punish criminals above

the procedural rights of individuals. He exhibits little

sympathy for defendants regardless of the constitutional

issue in question. The viev/s of Mr. Justice Harlan and

Mr, Justice Douglas are so opposed to each other that in

only tv/o of the forty-three cases presented v/as there any­

thing roaembling complete agreement between the tv/o justices.

In Garrett v. United States Mr, Justice Harlan v/rote the

opinion which held that an individual may not be forced

to surrender his privilege against self-incrimination

in order to exercise his other constitutional rights,1"

and in Sims v. Georgia he agreed with the majority that

trial judges should be the sole judge of the voluntariness

of a confession. ' In the three remaining cases in v/hich

he voted for the individual, he Indicated he did so for

reasons other than those expressed by the majority. Based

on past performance, it may be assumed th-;t Mr. Justice

l6Garrett v. United States, 36 L.W. I|227 (1968).

' Sims v. Georgia, 385 U.S. 533 (I967).

170

Harlan ;;ill dissent in every instance in v/hich the Court

imposes new restrictions on state or federal goverment.

Justices Harlan and Douglas represent the t/o

extremes on the Court. The vie..s of the remaining justices

fit somev/here in between these extremes. Mr. Justice

Brennan tends to support the claims of defendants, more so

in the judicial and investigatory cases than in the search

and seizure cases. His views concerning the procedural

rights of individuals roughly correspond to those of Mr,

Justice Douglas; yet he is unwilling to go quite so far

as Douglas in upholding the rights of the individual. His

approach to criminal procedure cases is somev/hat less doc­

trinaire than that of Mr. Justice Douglas, He finds little

difference between state and federal cases, but he does

not agree with Douglas that the Fourth and Fifth Amendments

afford a general right of privacy to individuals. Specifi­

cally, he v/rote the majority opinion in Schmerber v.

California, holding that the v/ithdrav/al of blood from a

suspect does not violate any of his constitutional rights.

He is also unv/illing to grant retroactive application to

most of the new procedural rules fashioned by the Court.

Mr. Justice Brennan exhibits an unv/llllngness to dissent

in cases v/here the majority has failed to uphold the clai'.is

of the individual. In fact, of the justices who have been

on the Court since I961, Brennan has shov/n the least

tendency to dissent in criminal proceduje cases. His six

171

dissents occurred in search and seizure cases. Four of

these dissents were in connection vdth the interpretation

of the Fourth Amendment standards governing reasonable­

ness and probable cause, one concerned the use of electronic

surveillance, and one concerned the use in a state court

of evidence obtained in violation of federal statutes.

It might well be argued that Mr. Justice Brennan reflects

the viev/s of the Supreme Court as a v/hole concerning the

judicial and investigatory cases, for he has been a member

of the m.ajorlty in each of the twenty-four judicial and

investigatory cases decided by the Court. During his

tenure on the Court, Mr. Justice Goldberg exhibited a

pattern of behavior closely corresponding to that of Mr.

Justice Brennan.

Mr. Justice Black, considered by many to be a staunch

"liberal", exhibits a great-deal of inconsistency in his

attitude toward defendants in criminal procedure cases.

He favored the defendants in only half of the cases con­

sidered. His support of the protection offered to

individuals by the Fourth Amendment -is certainly less than

enthusiastic, and his support of criminal defendants in the

judicial and investigatory cases rarJks below that of ilr.

Justice Brennan. His dissents reflect his Independent

approach to the disposition of crlm._nal procedure cases.

Of his sixteen dissents, six favored the individual and

ten favored the state. Tabl? 3 indicates that the supnosed

172

Black-Douglas coalition simply does not exist, at least

in criminal procedure cases. He has advocated wholesale

incorporation of the provisions of the Bill of Rights into

the Fourteenth Amendment, and he is willing to grant

retroactive effect to ne.v procedural rules announced by

the Court, but his attitudes concerning the procedural

Amendments seems to be governed by the specific language

of these Amendments. On several occasions he has criti­

cized the majority for "attempting to rewrite the

Constitution." In Berger v. New York, he criticized the

majority for "placing the interpretation of the Constitution

at the day-to»day whims of the Court."1^ In United States

V. Wade, he criticised the majority for "interpreting the

Constitution not by v/hat it says, but by Ahat it (the

majority) thinks it v/ould have been wise for the framers

to have put into it."^ On the other hand, he criticized

the majority in Schmerber v. California for "giving the

Fifth Amendment privilege against self-incrimination a

construction that would be generally considered too narrow

and technic:..!, even in the interpretation of an ordinary

business contract."^^ Perhaps the most appropriate means

of attemnting to analyze his rather complex approach is to

^^Berger v. New York, 35 L.W. 1.6[|.9, lj.657, (I967).

19united States v. V/ade, 35 L.W. [}-597, l|-607, (I967).

^^Schmerber v. California, 38IL U.S. 757, 778, (I966) .

173

let his words in Katz v. United States stand for tnemselves:

I have always attempted to give the provisions of the Bill of Rights a liberal construction, but I do not believe that the Framers of the Constitution, acquainted as 'they were v/ith the excesses of government, intended for this Court to exercise such omnipotent law making authority as that v/hich it exercises today.^1

Evidently, he contends that by attempting to bring provisions

of the Bill of Rights "in harmony vdth the times" the Court

someti.mes exercises law making authority, a situation

out of keeping v/ith the spirit of the Constitution.

Unfortunately, there is no way to predict v/hether Mr. Justice

Black .vlll contend that the Court has exercised lav/ making

authority in any particular future criminal procedure case.

Justices Stewart and White tend to agree v/ith Mr.

Justice Harlan, and tnus to dissent in the judicial and

investigatory cases in many instances, but tneir support

of the procedural rights of • individuals ranks somev/hat

above that of Mr. Justice Harlan. They also employ a

pragmatic approach in the disposition of criminal procedure

cases, thus accounting for several of the inconsistencies

appearing in Tables 1 and 2. Placing little stock in

"rigid academic formulas", they purport to consider the

totality of the facts and circumstances surrounding eacn

individual case and to make thsir decisions accordingly.

Their faith in this approacn remains constant in tne three

2lKatz V. United States, 36 L.V/. I1.08O, l|-09k, (I967) .

17i|.

types of criminal procedure cases considered nere. Although

these tv/o justices do not agree concerning the outcome of

every decision, neither justice has dissented in the

seventeen cases in which the Court failed to support the

contentions of the defendant, and probably v/ill not do so

in the future. During his tenure on the Court, Mr. Justice

Clark agreed ./ith the approach employed by Justices ;i/hite

and Stewart.

Mr. Justice Marshall has participated in only one

of the decisions considered here. An analysis of his viev/s

and attitudes concerning the procedural rights of individuals

would be fruitless; however, he is considered to be rather

liberal in his views concerning the rignts of individuals,

and an assumption that he ..dll probably align vdth the

"liberals" on tne Court does not seem out of order,'^^

Remaining to be considered are the vlev/s and

attitudes of Mr. Justice Fortas and Chief Justice V/arren.

The vlev/s and attitudes of these t./o justices are considered

together due to the fact that, depending on the anproval

of the United States Senate, Mr. Justice Fortas will

probably become the new Chief Justice. The relative

agreem-nt, or disagreement, of these two justices might

^^This assumption is base- on a stateiaent made by Mr. Justice Brenjian during a speech delivered at the Texas Technological College University Speakers' Series in November of I967.

175

weir have important implications concerning the direction

that the Court might take in the handling of future criminal

procedure cases. Tables 1 and 2 reveal that Chief Justice

V/arren and Mr. Justice Fortas have voted alike in t./enty-

one of the tv/enty-three cniminal procedure cases in which

they have both participated. This high degree of agreement

suggests that should Mr. Justice Fortas become the new

Chief Justice, the Supreme Court v/111 not veer from its

present course, depending on the new appointment and on

the influence that the new Chief Justice will be able to

exert over the remaining eight justices. Table 3 indicates

that these t.vo men highly regard the procedural rights of

individuals. Their support of defendants falls somewhere

in betv/een that of Mr. Justice Douglas and Mr. Justice

Brennan. Their disagreement with Douglas centers around

the question of retroactivity and the use by government

of paid informers. They are somewhat less doctrinaire

than Douglas in that they do not advocate a general right

to privacy protected by the Fourth and Fifth Amendments.

They disagree v/ith the reasoning of Mr. Justice Brennan

in Schmerber v. California, and they exlaibit a greater

willingness to dissent in cases where the Court has failed

to uphold the claims of the defendant than does Brennan.

What implications do the viev/s of the justices

presently serving on the Court have for the future? To a

certain extent, this que-.tion has already been ansv/ered.

176

for predictions of tnis nature rest in part on the past

performance of the justices. Beginning next term, the

Supreme Court v/111 be composed of at least three, and

probably four justices who are inclined to favor the claims

of defendants,in criminal procedure cases and three justices

v/ho tend to vote against the defendant in such cases.

Here, it must be noted that such an assumption depends on

the approval by the United States Senate of Mr. Justice

Fortas' appointment as the new Chief Justice. Should the

Senate refuse the appointment, there would probably be

five justices on tne court v;ho tend to vote in favor of

defendants. Mr. Justice Black tends to vote rather

inconsistently in criminal procedure cases. He favors

defendants more often than not in judicial and investiga­

tory cases, but seems ratner unsympathetic tov/ard defendants

in search and seizure cases J At this time it is impossible

to predict how Mr. Justice Thornberry would stand in

relation to the conflict betveen individuals and the state

should his appointment to the Supreme Court be affirmed.

The key to future decisions rests in the hands of the United

States Senate. Should the Senate refuse President Johnson's

appointments, and should Chief Justice V/arren remain on the

Court because of the rejected appointments, then the

Supreme Court would probably go even farther in the direc­

tion of placing individual procedural rights above tne

177

claims of the state than it would have gone if tne Senate

had aprroved tne appointments. Assuming, hov/ever, that

the Senate dll approve the appointments, the key to future

decisions will rest in the hands of Mr. Justice Black,

Mr. Justice Marshall, and Mr. Justice Thornberry. In this

case, there is no reason to believe that the Fortas Court

v/ould drastically alter the direction taken by tne recent

Warren Court, and there is no reason to believe that there

viould be a significant decline in the number .of five-to-four

decisions involving procedural questions. Thus, in all

probability, a divided Court v/111 continue to favor indivi­

duals in most future judicial and investigatory cases,

and favor the state in search and seizure cases more often

than not.

Throughout this paper, predictions concerning future

decisions have been based on the past p?rformances of the

justices on the Court. Here, a word of caution is in order.

Past performance predictions are open to criticism in tnat

they fall to take into consideration future changes in t].e

personnel on the Court and future cnanges in the attitudes

2"

and mores of s o c i e t y . -^ They .vould be completely accurate

i f the re ,/ere no changes in the personnel on tne Court

and i f each of t!.!.e j u s t i c e s -completely adnered to tne

doc t r ine of s t a r e d e c i s i s . Cer ta in ly such a s i t u a t i o n

^^Scnubert, Op. Ci_t., p . 327.

178

does not exist. Each nerj case tnat comes before the Court

presents a aet of facts and circumstances different from

any previously encountered by the Court; otherwise, the

Court would not have granted certiorari.^If past perform-

ance predictions, tnen, are useful in determining not how

the Court "will" vote in the future, but how the Court

"ought to" vote in a particular group of future cases.

Twenty of the forty-three criminal procedure cases

considered were marginal, or five-to-four decisions.

Certainly the personnel on the Court cannot be expected to

remain constant for an extended period of time. The

appointment of one or t./o ne./ justices to the Court could

either strengthen or v/eaken tne reasoning behind tnese

marginal decisions, and could conceivably alter tne reason­

ing benlnd the eleven six-to-tnree decisions announced by

the Court from 1961 to I968. Further speculation along .

these lines would serve no purpose here, but future changes

in the personnel on the Court will play an important part in

determ.ining the direction that the Court v/ill take.

Also, the fact that the Supreme Court cannot be

isolated from the social and political environment in v/hich

it exists cannot be overlooiied. Rostow contends tnat judges

have a limited, but inescapable duty to make so.me of the

decisions tnrough v/nich tne lav develops in response to

changing social notions.^5 The past few years can be

25 Rostow, Op.Cit, p. 2.

179

described as a period of social unrest and sweeping social

change. Certainly the conflict between the rights of

individuals and the right of society to a peaceful

existence has intensified during the last decade. Law

enforcement officers must attempt to combat the violence

which seems to accompany rapid social change. Governments,

national, state, and local, have formulated, or have at

least contemplated, nev/ lav/s designed to combat violence.

These anti-crime provisions present new and vital

constitutional questions which the Court must ans./er.

Many of the questions are procedural in nature, vl/hether

the United States Supreme Court v;ill continue to uphold

the procedural rights of individuals in the face of

seemingly uncontrollable violence is a question that can

finally be ansv/ered only after the Court has handed down

the appropriate opinions.

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180

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L

182

Spano V. New York. 360 U.S. 3l5 (1959). Spevack v. Klein, 385 U.S. 5ll {I967). Stein V. New York, 3t}-6 U.S. 156 (1952). Stovall V. Denno, 35 L.W. I4.61O (I907). Tehen v. Shott. 382 U.S. 14.06 (1965). Twining V. New Jersey, 211 U.S. 78 (I9O8). Ullman v. United States, 350 U.S. I4.22 (1956). United States v. Ventresca, 38O U.S. 102 (1965). United States v. .Vade, 3$~L.W. I4.597 (1967). Warden v. Hayden, 33 L.W. I4.I4.93 (I967) . Weeks v. United States, 232 U.S. 323 (I91I}-). White v. Maryland, 373 U.S. 59 (1963). Wolf V. Colorado, 338 U.S. 25 (I9II.9),

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183

Articles

"Accused's Right to Counsel Under the Federal Constitution". 9 L Ed. 2d 1260-1268 (1963;. Annotation,

"Admissibility of Evidence Obtained by Illegal Search and Seizure". 6 L Ed. 2d l5[|ij.-l5l4.8 (I961) , Annotation,

"Admissibility of Pre-Trial Confessions in Criminal Cases", 12 L Ed. 2d I3I4-O-I3I19 (196[|.), Annotation.

"Admissibility of Pre-Trial Confessions in Criminal Cases", 16 L Ed, 2d 12911-1305 (1966). Annotation.

"Recent Developments". Columbia Law Reviev/, Vol, 63 No, 5, May, 1963, pp. 952-75.

"Self-incrimination: Discharge of Officers". 17 L Ed. 2d 1131-llLl-5 (1967). Annotation,