Petitioner was convicted of armed robbery and the murder of a
police officer. There were separate guilt and penalty stages of the
trial before the same jury, which rendered a guilty verdict and
imposed the death penalty. Petitioner alleges constitutional errors
in the admission of testimony of some of the witnesses that they
had also identified him at a lineup, which occurred 16 days after
his indictment and after appointment of counsel, who was not
notified, and in in-court identifications of other witnesses
present at that lineup; in the admission of handwriting exemplars
taken from him after arrest, and in the admission of a
codefendant's out-of-court statements mentioning petitioner's part
in the crimes, which statements were held to have been improperly
admitted against the codefendant on the latter's appeal.
Additionally, he alleges violation of his Fourth Amendment rights
by police seizure of photographs of him from his locked apartment
after a warrantless entry, and the admission of testimony
identifying him from these photographs.
Held:
1. The taking of handwriting exemplars did not violate
petitioner's constitutional rights. Pp.
388 U. S.
265-267.
(a) The Fifth Amendment privilege against self-incrimination
reaches compulsory communications, but a mere handwriting exemplar,
in contrast with the content of what is written, is an identifying
physical characteristic outside its protection. Pp.
388 U. S.
266-267.
(b) The taking of the exemplars was not a "critical" stage of
the criminal proceedings entitling petitioner to the assistance of
counsel; there is minimal risk that the absence of counsel might
derogate from his right to a fair trial. P.
388 U. S.
267.
2. Petitioner's request for reconsideration of
Delli Paoli
v. United States, 352 U. S. 232
(where the Court held that appropriate instructions to the jury
would suffice to prevent prejudice to a defendant from references
to him in a codefendant's statement) in connection with his
codefendant's statements, need not be considered in view of the
California Supreme Court's holding rejecting the
Delli
Paoli rationale, but finding that any error to petitioner by
the admission of the statements was harmless. Pp.
388 U. S.
267-268.
Page 388 U. S. 264
3. A closer examination of the record than was possible when
certiorari was granted reveals that the facts with respect to the
search and seizure claim are not sufficiently clear to permit
resolution of that question, and certiorari on this issue is
vacated as improvidently granted. P.
388 U. S.
269.
4. The admission of the in-court identifications of petitioner
without first determining that they were not tainted by the illegal
lineup procedure but were of independent origin was constitutional
error.
United States v. Wade, ante, p.
388 U. S. 218. Pp.
388 U. S.
269-274.
(a) Since the record does not permit an informed judgment
whether the in-court identifications at the two stages of the trial
had an independent source, petitioner is entitled only to a
vacation of his conviction, pending proceedings in California
courts allowing the State to establish that the in-court
identifications had an independent source or that their
introduction in evidence was harmless error. P.
388 U. S.
272.
(b) With respect to testimony of witnesses that they identified
petitioner at the lineup, which is a direct result of an illegal
procedure, the State is not entitled to show that such testimony
had an independent source, but the California courts must, unless
"able to declare a belief that it was harmless beyond a reasonable
doubt," grant petitioner a new trial if such testimony was at the
guilt stage, or grant appropriate relief if it was at the penalty
stage. Pp.
388 U. S.
272-274.
63 Cal. 2d
690, 408 P.2d 365, vacated and remanded.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
This case was argued with
United States v. Wade, ante,
p.
388 U. S. 218, and
presents the same alleged constitutional error in the admission in
evidence of in-court identifications there considered. In addition,
petitioner alleges constitutional
Page 388 U. S. 265
errors in the admission in evidence of testimony of some of the
witnesses that they also identified him at the lineup, in the
admission of handwriting exemplars taken from him after his arrest,
and in the admission of out-of-court statements by King, a
codefendant, mentioning petitioner's part in the crimes, which
statements, on the codefendant's appeal decided with petitioner's,
were held to have been improperly admitted against the codefendant.
Finally, he alleges that his Fourth Amendment rights were violated
by a police seizure of photographs of him from his locked apartment
after entry without a search warrant, and the admission of
testimony of witnesses that they identified him from those
photographs within hours after the crime.
Petitioner was convicted in the Superior Court of California of
the armed robbery of the Mutual Savings and Loan Association of
Alhambra and the murder of a police officer who entered during the
course of the robbery. There were separate guilt and penalty stages
of the trial before the same jury, which rendered a guilty verdict
and imposed the death penalty. The California Supreme Court
affirmed,
63 Cal. 2d
690, 408 P.2d 365. We granted certiorari,
384 U.
S. 985, and set the case for argument with
Wade
and with
Stovall v. Denno, post, p.
388 U. S. 293. If
our holding today in
Wade is applied to this case, the
issue whether admission of the in-court and lineup identifications
is constitutional error which requires a new trial could be
resolved on this record only after further proceedings in the
California courts. We must therefore first determine whether
petitioner's other contentions warrant any greater relief.
I
THE HANDWRITING EXEMPLARS
Petitioner was arrested in Philadelphia by an FBI agent, and
refused to answer questions about the Alhambra
Page 388 U. S. 266
robbery without the advice of counsel. He later did answer
questions of another agent about some Philadelphia robberies in
which the robber used a handwritten note demanding that money be
handed over to him, and, during that interrogation, gave the agent
the handwriting exemplars. They were admitted in evidence at trial
over objection that they were obtained in violation of petitioner's
Fifth and Sixth Amendment rights. The California Supreme Court
upheld admission of the exemplars on the sole ground that
petitioner had waived any rights that he might have had not to
furnish them.
"[The agent] did not tell Gilbert that the exemplars would not
be used in any other investigation. Thus, even if Gilbert believed
that his exemplars would not be used in California, it does not
appear that the authorities improperly induced such belief."
63 Cal. 2d at 708, 408 P.2d at 376. The court did not,
therefore, decide petitioner's constitutional claims.
We pass the question of waiver, since we conclude that the
taking of the exemplars violated none of petitioner's
constitutional rights.
First. The taking of the exemplars did not violate
petitioner's Fifth Amendment privilege against self-incrimination.
The privilege reaches only compulsion of "an accused's
communications, whatever form they might take, and the compulsion
of responses which are also communications, for example, compliance
with a subpoena to produce one's papers," and not "compulsion which
makes a suspect or accused the source of
real or physical
evidence'. . . ." Schmerber v. California, 384 U.
S. 757, 384 U. S.
763-764. One's voice and handwriting are, of course,
means of communication. It by no means follows, however, that every
compulsion of an accused to use his voice or write compels a
communication within the cover of the privilege. A mere handwriting
exemplar, in contrast to the content of what is
Page 388 U. S. 267
written, like the voice or body itself, is an identifying
physical characteristic outside its protection.
United States
v. Wade, supra, at
388 U. S.
222-223. No claim its made that the content of the
exemplars was testimonial or communicative matter.
Cf. Boyd v.
United States, 116 U. S. 616.
Second. The taking of the exemplars was not a
"critical" stage of the criminal proceedings entitling petitioner
to the assistance of counsel. Putting aside the fact that the
exemplars were taken before the indictment and appointment of
counsel, there is minimal risk that the absence of counsel might
derogate from his right to a fair trial.
Cf. United States v.
Wade, supra. If, for some reason, an unrepresentative exemplar
is taken, this can be brought out and corrected through the
adversary process at trial, since the accused can make an unlimited
number of additional exemplars for analysis and comparison by
government and defense handwriting experts. Thus,
"the accused has the opportunity for a meaningful confrontation
of the [State's] case at trial through the ordinary processes of
cross-examination of the [State's] expert [handwriting] witnesses
and the presentation of the evidence of his own [handwriting]
experts."
United States v. Wade, supra, at
388 U. S.
227-228.
II
ADMISSION OF CO-DEFENDANT'S STATEMENTS
Petitioner contends that he was denied due process of law by the
admission during the guilt stage of the trial of his accomplice's
pretrial statements to the police which referred to petitioner 159
times in the course of reciting petitioner's role in the robbery
and murder. The statements were inadmissible hearsay as to
petitioner, and were held on King's aspect of this appeal to be
improperly obtained from him, and therefore to be inadmissible
against him under California law. 63 Cal. 2d at 699-701, 408 P.2d
at 370-371.
Page 388 U. S. 268
Petitioner would have us reconsider
Delli Paoli v. United
States, 352 U. S. 232
(where the Court held that appropriate instructions to the jury
would suffice to prevent prejudice to a defendant from the
references to him in a codefendant's statement), at least as
applied to a case, as here, where the codefendant gained a reversal
because of the improper admission of the statements. We have no
occasion to pass upon this contention. The California Supreme Court
has rejected the
Delli Paoli rationale, and, relying at
least in part on the reasoning of the
Delli Paoli dissent,
regards cautionary instructions as inadequate to cure prejudice.
People v. Aranda, 63 Cal. 2d
518, 407 P.2d 265. The California court applied
Aranda
in this case, but held that any error as to Gilbert in the
admission of King's statements was harmless. The harmless error
standard applied was that "there is no reasonable possibility that
the error in admitting King's statements and testimony might have
contributed to Gilbert's conviction," a standard derived by the
court from our decision in
Fahy v. Connecticut,
375 U. S. 85.
[
Footnote 1]
Fahy was
the basis of our holding in
Chapman v. California,
386 U. S. 18, and
the standard applied by the California court satisfies the standard
as defined in
Chapman.
It may be that the California Supreme Court will review the
application of its harmless error standard to King's statements if,
on the remand, the State presses harmless error also in the
introduction of the in-court and lineup identifications. However,
this, at best, implies an ultimate application of
Aranda,
and only confirms that petitioner's argument for reconsideration of
Delli Paoli need not be considered at this time.
Page 388 U. S. 269
III
THE SEARCH AND SEIZURE CLAIM.
The California Supreme Court rejected Gilbert's challenge to the
admission of certain photographs taken from his apartment pursuant
to a warrantless search. The court justified the entry into the
apartment under the circumstances on the basis of so-called "hot
pursuit" and "exigent circumstances" exceptions to the warrant
requirement. We granted certiorari to consider the important
question of the extent to which such exceptions may permit
warrantless searches without violation of the Fourth Amendment. A
closer examination of the record than was possible when certiorari
was granted reveals that the facts do not appear with sufficient
clarity to enable us to decide that question.
See
388
U.S. 263app|>Appendix to this opinion;
compare Warden v.
Hayden, 387 U. S. 294. We
therefore vacate certiorari on this issue as improvidently granted.
The Monrosa v. Carbon Black Export, Inc., 359 U.
S. 180,
359 U. S.
184.
IV
THE IN-COURT AND LINEUP IDENTIFICATIONS
Since none of the petitioner's other contentions warrants
relief, the issue becomes what relief is required by application to
this case of the principles today announced in
United States v.
Wade, supra.
Three eyewitnesses to the Alhambra crimes who identified Gilbert
at the guilt stage of the trial had observed him at a lineup
conducted without notice to his counsel in a Los Angeles auditorium
16 days after his indictment and after appointment of counsel. The
manager of the apartment house in which incriminating evidence was
found, and in which Gilbert allegedly resided, identified Gilbert
in the courtroom and also testified, in substance, to her prior
lineup identification on examination by the
Page 388 U. S. 270
State. Eight witnesses who identified him in the courtroom at
the penalty stage were not eyewitnesses to the Alhambra crimes, but
to other robberies allegedly committed by him. In addition to their
in-court identifications, these witnesses also testified that they
identified Gilbert at the same lineup.
The lineup was on a stage behind bright lights which prevented
those in the line from seeing the audience. Upwards of 100 persons
were in the audience, each an eyewitness to one of the several
robberies charged to Gilbert. The record is otherwise virtually
silent as to what occurred at the lineup. [
Footnote 2]
Page 388 U. S. 271
At the guilt stage, after the first witness, a cashier of the
savings and loan association, identified Gilbert in the courtroom,
defense counsel moved, out of the presence of the jury, to strike
her testimony on the ground that she identified Gilbert at the
pretrial lineup conducted in the absence of counsel in violation of
the Sixth Amendment made applicable to the States by the Fourteenth
Amendment.
Gideon v. Wainwright, 372 U.
S. 335. He requested a hearing outside the presence of
the jury to present evidence supporting his claim that her in-court
identification was, and others to be elicited by the State from
other eyewitnesses would be, "predicated at least in large part
upon their identification or purported identification of Mr.
Gilbert at the showup. . . ." The trial judge denied the motion as
premature. Defense counsel then elicited the fact of the cashier's
lineup identification on cross-examination and again moved to
strike her identification testimony. Without passing on the merits
of the Sixth Amendment claim, the trial judge denied the motion on
the ground that, assuming a violation, it would not, in any event,
entitle Gilbert to suppression of the in-court identification.
Defense counsel thereafter elicited the fact of lineup
identifications from two other eyewitnesses who on direct
examination identified Gilbert in the courtroom. Defense counsel
unsuccessfully objected at the penalty stage, to the testimony of
the eight witnesses to the other robberies that they identified
Gilbert at the lineup.
Page 388 U. S. 272
The admission of the in-court identifications without first
determining that they were not tainted by the illegal lineup but
were of independent origin was constitutional error.
United
States v. Wade, supra. We there held that a post-indictment
pretrial lineup at which the accused is exhibited to identifying
witnesses is a critical stage of the criminal prosecution; that
police conduct of such a lineup without notice to, and in the
absence o,f his counsel denies the accused his Sixth Amendment
right to counsel and calls in question the admissibility at trial
of the in-court identifications of the accused by witnesses who
attended the lineup. However, as in
Wade, the record does
not permit an informed judgment whether the in-court
identifications at the two stages of the trial had an independent
source. Gilbert is therefore entitled only to a vacation of his
conviction pending the holding of such proceedings as the
California Supreme Court may deem appropriate to afford the State
the opportunity to establish that the in-court identifications had
an independent source, or that their introduction in evidence was,
in any event, harmless error.
Quite different considerations are involved as to the admission
of the testimony of the manager of the apartment house at the guilt
phase and of the eight witnesses at the penalty stage that they
identified Gilbert at the lineup. [
Footnote 3] That testimony is the direct result of the
illegal
Page 388 U. S. 273
lineup "come at by exploitation of [the primary] illegality."
Wong Sun v. United States, 371 U.
S. 471,
371 U. S. 488.
The State is therefore not entitled to an opportunity to show that
that testimony had an independent source. Only a
per se
exclusionary rule as to such testimony can be an effective sanction
to assure that law enforcement authorities will respect the
accused's constitutional right to the presence of his counsel at
the critical lineup. In the absence of legislative regulations
adequate to avoid the hazards to a fair trial which inhere in
lineups as presently conducted, the desirability of deterring the
constitutionally objectionable practice must prevail over the
undesirability of excluding relevant evidence.
Cf. Mapp v.
Ohio, 367 U. S. 643.
That conclusion is buttressed by the consideration that the
witness' testimony of his lineup identification will enhance the
impact of his in-court identification on the jury and
Page 388 U. S. 274
seriously aggravate whatever derogation exists of the accused's
right to a fair trial. Therefore, unless the California Supreme
Court is "able to declare a belief that it was harmless beyond a
reasonable doubt,"
Chapman v. California, 386 U. S.
18,
386 U. S. 24,
Gilbert will be entitled on remand to a new trial or, if no
prejudicial error is found on the guilt stage but only in the
penalty stage, to whatever relief California law affords where the
penalty stage must be set aside.
The judgment of the California Supreme Court and the conviction
are vacated, and the case is remanded to that court for further
proceedings not inconsistent with this opinion.
It is so ordered.
THE CHIEF JUSTICE joins this opinion except for Part III, from
which he dissents for the reasons expressed in the opinion of MR.
JUSTICE DOUGLAS.
|
388
U.S. 263app|
APPENDIX TO OPINION OF THE COURT
Photographs of Gilbert introduced at the guilt stage of the
trial had been viewed by eyewitnesses within hours after the
robbery and murder. Officers had entered his apartment without a
warrant and found them in an envelope on the top of a bedroom
dresser. The envelope was of the kind customarily used in
delivering developed prints, with the words "Marlboro Photo Studio"
imprinted on it. The officers entered the apartment because of
information given by an accomplice which led them to believe that
one of the suspects might be inside the apartment. Assuming that
the warrantless entry into the apartment was justified by the need
immediately to search for the suspect, the issue remains whether
the subsequent search was reasonably supported by those same
exigent circumstances. If the envelope
Page 388 U. S. 275
were come upon in the course of a search for the suspect, the
answer might be different from that where it is come upon, even
though in plain view, in the course of a general, indiscriminate
search of closets, dressers, etc., after it is known that the
occupant is absent. Still different considerations may be presented
where officers, pursuing the suspect, find that he is absent from
the apartment but conduct a limited search for suspicious objects
in plain view which might aid in the pursuit. The problem with the
record in the present case is that it could reasonably support any
of these factual conclusions upon which our constitutional analysis
should rest, and the trial court made no findings on the scope of
search. The California Supreme Court, which had no more substantial
basis upon which to resolve the conflict than this Court, stated
that the photos were come upon "while the officers were looking
through the apartment for their suspect. . . ." As will appear, a
contrary conclusion is equally reasonable.
(1) Agent Schlatter testified that, immediately upon entering
the apartment, which he put at "approximately 1:05," the officers
made a quick search for the occupant, which took at most a minute,
and that the continued presence of the officers became "a matter of
a stake-out under the assumption that the person or persons
involved would come back." He testified that the officer who found
the photographs, Agent Crowley, had entered the apartment with him.
Agent Schlatter's testimony might support the California Supreme
Court's view of the scope of search; (2) Agent Crowley testified
that he arrived within five minutes after Agent Schlatter, "around
1:30, give or take a few minutes either way," that the apartment
had already been searched for the suspects, and that he was
instructed
"to look through the apartment for anything we could find that
we could use to identify or continue the pursuit of this person
Page 388 U. S. 276
without conducting a detailed search."
Crowley's further testimony was that the search pursuant to
which the photos were found was limited in this manner, and that he
merely inspected objects in plain sight which would aid in
identification. He stated that a detailed search for guns and money
was not conducted until after a warrant had issued over three hours
later. (3) Agent Townsend said he arrived at the apartment
"sometime between perhaps 1:30 and 2:00," and that, "well within an
hour," he, Agent Crowley, another agent and a local officer
conducted a detailed search of the bedroom. He stated that they
"looked through the bedroom closet and dresser, and I think . . .
the headstand." A substantial sum of money was found in the
dresser. Townsend could not "specifically say" whether Crowley was
in the bedroom at the time the money was found. This testimony
might support a finding that the officers were engaged in a general
search of the bedroom at the time the photos were found.
The testimony of the agents concerning their time of arrival in
the apartment is not inconsistent with any of the three possible
conclusions as to the scope of search. Taking Townsend's testimony
together with Crowley's, it can be concluded that the two arrived
at about the same time. Agent Schlatter's testimony that Crowley
arrived with him at 1:05, however, supports a conclusion that
Crowley had begun his activities before Townsend arrived. Then
there is the testimony of Agent Kiel, who did not enter the
apartment, that he obtained the photos while talking with the
landlady "approximately 1:25 to 1:30," about the same time that
both Crowley and Townsend testified they arrived. In sum, the
testimony concerning the timing of the events surrounding the
search is both approximate and itself contradictory.
Page 388 U. S. 277
[
Footnote 1]
The California Supreme Court also held that ". . . the erroneous
admission of King's statements at the trial on the issue of guilt
was not prejudicial on the question of Gilbert's penalty," again
citing
Fahy, 63 Cal. 2d at 702, 408 P.2d at 372.
[
Footnote 2]
The record in
Gilbert v. United States, 366 F.2d 923,
involving the federal prosecutions of Gilbert, apparently contains
many more details of what occurred at the lineup. The opinion of
the Court of Appeals for the Ninth Circuit states, 366 F.2d at
935:
"The lineup occurred on March 26, 1964, after Gilbert had been
indicted and had obtained counsel. It was held in an auditorium
used for that purpose by the Los Angeles police. Some ten to
thirteen prisoners were placed on a lighted stage. The witnesses
were assembled in a darkened portion of the room, facing the stage
and separated from it by a screen. They could see the prisoners,
but could not be seen by them. State and federal officers were also
present, and one of them acted as 'moderator' of the
proceedings."
"Each man in the lineup was identified by number, but not by
name. Each man was required to step forward into a marked circle,
to turn, presenting both profiles as well as a face and back view,
to walk, to put on or take off certain articles of clothing. When a
man's number was called and he was directed to step into the
circle, he was asked certain questions: where he was picked up,
whether he owned a car, whether, when arrested, he was armed, where
he lived. Each was also asked to repeat certain phrases, both in a
loud and in a soft voice, phrases that witnesses to the crimes had
heard the robbers use: 'Freeze, this is a stickup; this is a
holdup; empty your cash drawer; this is a heist; don't anybody
move.'"
"Either while the men were on the stage or after they were taken
from it, it is not clear which, the assembled witnesses were asked
if there were any that they would like to see again, and told that,
if they had doubts, now was the time to resolve them. Several gave
the numbers of men they wanted to see, including Gilbert's. While
the other prisoners were no longer present, Gilbert and 2 or 3
others were again put through a similar procedure. Some of the
witnesses asked that a particular prisoner say a particular phrase,
or walk a particular way. After the lineup, the witnesses talked to
each other; it is not clear that they did so during the lineup.
They did, however, in each other's presence, call out the numbers
of men they could identify."
[
Footnote 3]
There is a split among the States concerning the admissibility
of prior extrajudicial identifications, as independent evidence of
identity, both by the witness and third parties present at the
prior identification.
See 71 ALR2d 449. It has been held
that the prior identification is hearsay, and, when admitted
through the testimony of the identifier, is merely a prior
consistent statement. The recent trend, however, is to admit the
prior identification under the exception that admits as substantive
evidence a prior communication by a witness who is available for
cross-examination at trial.
See 5 ALR2d Later Case Service
1225-1228. That is the California rule. In
People v.
Gould, 54 Cal. 2d
621, 626, 354 P.2d 865, 867, the Court said:
"Evidence of an extrajudicial identification is admissible not
only to corroborate an identification made at the trial (
People
v. Slobodion, 31 Cal. 2d
555, 560 [191 P.2d 1]), but as independent evidence of
identity. Unlike other testimony that cannot be corroborated by
proof of prior consistent statements unless it is first impeached .
. . , evidence of an extrajudicial identification is admitted
regardless of whether the testimonial identification is impeached,
because the earlier identification has greater probative value than
an identification made in the courtroom after the suggestions of
others and the circumstances of the trial may have intervened to
create a fancied recognition in the witness' mind. . . . The
failure of the witness to repeat the extrajudicial identification
in court does not destroy its probative value, for such failure may
be explained by loss of memory or other circumstances. The
extrajudicial identification tends to connect the defendant with
the crime, and the principal danger of admitting hearsay evidence
is not present, since the witness is available at the trial for
cross-examination."
New York deals with the subject in a statute.
See
N.Y.Code Crim.Proc. ยง 393-b.
MR JUSTICE BLACK, concurring in part and dissenting in part.
Petitioner was convicted of robbery and murder partially on the
basis of handwriting samples he had given to the police while he
was in custody without counsel and partially on evidence that he
had been identified by eyewitnesses at a lineup identification
ceremony held by California officers in a Los Angeles auditorium
without notice to his counsel. The Court's opinion shows that the
officers took Gilbert to the auditorium while he was a prisoner,
formed a lineup of Gilbert and other persons, required each one to
step forward, asked them certain questions, and required them to
repeat certain phrases, while eyewitnesses to this and other crimes
looked at them in efforts to identify them as the criminals. At his
trial, Gilbert objected to the handwriting samples and to the
identification testimony given by witnesses who saw him at the
auditorium lineup on the ground that the admission of this evidence
would violate his Fifth Amendment privilege against
self-incrimination and Sixth Amendment right to counsel. It is well
established now that the Fourteenth Amendment makes both the
Self-Incrimination Clause of the Fifth Amendment and the Right to
Counsel Clause of the Sixth Amendment obligatory on the States.
See, e.g., Malloy v. Hogan, 378 U. S.
1;
Gideon v. Wainwright, 372 U.
S. 335.
I
(a) Relying on
Schmerber v. California, 384 U.
S. 757, the Court rejects Gilbert's Fifth Amendment
contention as to both the handwriting exemplars and the lineup
identification. I dissent from that holding. For reasons set out in
my separate opinion in
United States v. Wade, ante, p.
388 U. S. 243,
as well as in my dissent to
Schmerber, 384 U.S. at
384 U. S. 773,
I think that case wholly unjustifiably detracts from the protection
against compelled self-incrimination
Page 388 U. S. 278
the Fifth Amendment was designed to afford. It rests on the
ground that compelling a suspect to submit to or engage in conduct
the sole purpose of which is to supply evidence against himself
nonetheless does not compel him to be a witness against himself.
Compelling a suspect or an accused to be "the source of
real or
physical evidence' . . . ," so says Schmerber, 384 U.S. at
384 U. S. 764,
is not compelling him to be a witness against himself. Such an
artificial distinction between things that are in reality the same
is, in my judgment, wholly out of line with the liberal
construction which should always be given to the Bill of Rights.
See Boyd v. United States, 116 U.
S. 616.
(b) The Court rejects Gilbert's right to counsel contention in
connection with the handwriting exemplars on the ground that the
taking of the exemplars "was not a
critical' stage of the
criminal proceedings entitling petitioner to the assistance of
counsel." In all reality, however, it was one of the most
"critical" stages of the government proceedings that ended in
Gilbert's conviction. As to both the State's case and Gilbert's
defense, the handwriting exemplars were just as important as the
lineup, and perhaps more so, for handwriting analysis, being, as
the Court notes, "scientific" and "systematized," United States
v. Wade, ante at 388 U. S. 227,
may carry much more weight with the jury than any kind of lineup
identification. The Court, however, suggests that absence of
counsel when handwriting exemplars are obtained will not impair the
right of cross-examination at trial. But just as nothing said in
our previous opinions "links the right to counsel only to
protection of Fifth Amendment rights," United States v. Wade,
ante at 388 U. S. 226,
nothing has been said which justifies linking the right to counsel
only to the protection of other Sixth Amendment rights. And there
is nothing in the Constitution to justify considering the right to
counsel as a second
Page 388 U. S. 279
class, subsidiary right which attaches only when the Court deems
other specific rights in jeopardy. The real basis for the Court's
holding that the stage of obtaining handwriting exemplars is not
"critical," is its statement that "there is minimal risk that the
absence of counsel might derogate from his right to a fair trial."
The Court considers the "right to a fair trial" to be the
overriding "aim of the right to counsel,"
United States v.
Wade, ante at
388 U. S. 226,
and somehow believes that this Court has the power to balance away
the constitutional guarantee of right to counsel when the Court
believes it unnecessary to provide what the Court considers a "fair
trial." But I think this Court lacks constitutional power thus to
balance away a defendant's absolute right to counsel which the
Sixth and Fourteenth Amendments guarantee him. The Framers did not
declare in the Sixth Amendment that a defendant is entitled to a
"fair trial," nor that he is entitled to counsel on the condition
that this Court thinks there is more than a "minimal risk" that,
without a lawyer, his trial will be "unfair." The Sixth Amendment
settled that a trial without a lawyer is constitutionally unfair,
unless the court-created balancing formula has somehow changed it.
Johnson v. Zerbst, 304 U. S. 458, and
Gideon v. Wainwright, 372 U. S. 335, I
thought finally established the right of an accused to counsel
without balancing of any kind.
The Court's holding here illustrates the danger to Bill of
Rights guarantees in the use of words like a "fair trial" to take
the place of the clearly specified safeguards of the Constitution.
I think it far safer for constitutional rights for this Court to
adhere to constitutional language like "the accused shall . . .
have the Assistance of Counsel for his defence" instead of
substituting the words not mentioned, "the accused shall have the
assistance of counsel only if the Supreme Court thinks it necessary
to assure a fair trial." In my judgment, the guarantees
Page 388 U. S. 280
of the Constitution, with its Bill of Rights, provide the kind
of "fair trial" the Framers sought to protect. Gilbert was entitled
to have the "assistance of counsel" when he was forced to supply
evidence for the Government to use against him at his trial. I
would reverse the case for this reason also.
II
I agree with the Court that Gilbert's case should not be
reversed for state error in admitting the pretrial statements of an
accomplice which referred to Gilbert. But instead of squarely
rejecting petitioner's reliance on the dissent in
Delli Paoli
v. United States, 352 U. S. 232,
352 U. S. 246,
the Court avoids the issue by pointing to the fact that the
California Supreme Court, even assuming the error to be a federal
constitutional one, applied a harmless error test which measures up
to the one we subsequently enunciated in
Chapman v.
California, 386 U. S. 18. And
the Court then goes on to suggest that the California Supreme Court
may desire to reconsider whether that is so upon remand.
I think the Court should clearly indicate that neither
Delli
Paoli nor
Chapman has any relevance here.
Delli
Paoli rested on the admissibility of evidence in federal, not
state, courts. The introduction of evidence in state courts is
exclusively governed by state law unless its introduction would
violate some federal constitutional provision, and there is no such
federal provision here.
See Spencer v. Texas, 385 U.
S. 554. That being so, any error in admitting the
accomplice's pretrial statements is only an error of state law, and
Chapman, providing a federal constitutional harmless error
rule, has absolutely no relevance here. Instead of looking at the
harmless error test applied by the California Supreme Court in
order to ascertain whether it comports with
Chapman, I
would make it clear that this Court is leaving to the
Page 388 U. S. 281
States their unbridled power to control their own state courts
in the absence of conflicting federal constitutional
provisions.
III
One witness who identified Gilbert at the guilt stage of his
trial and eight witnesses who identified him at the penalty stage
testified on direct examination that they had identified him in the
auditorium lineup. I agree with the Court that the admission of
this testimony was constitutional error, and that Gilbert is
entitled to a new trial unless the state courts, applying
Chapman, conclude that this error was harmless. However,
these witnesses also identified Gilbert in the courtroom, and two
other witnesses at the guilt stage identified him solely in the
courtroom. As to these, the Court holds that
"[t]he admission of the in-court identifications without first
determining that they were not tainted by the illegal lineup . . .
was constitutional error."
I dissent from this holding in this case and in
United
States v. Wade, ante, p.
388 U. S. 243,
for the reasons there given.
For the reasons here stated, I would vacate the judgment of the
California Supreme Court and remand for consideration of whether
the admission of the handwriting exemplars and the out-of-court
lineup identification was harmless error.
*
* The Court dismisses as improvidently granted the Fourth
Amendment search and seizure question raised by Gilbert in this
case. I dissent from this, because I would decide that question
against Gilbert. However, since the Court refuses to decide that
question, I see no reason for expressing my views at length.
MR. JUSTICE DOUGLAS, concurring in part and dissenting in
part.
While I agree with the Court's opinion except for Part I, I
would reverse and remand for a new trial on
Page 388 U. S. 282
the search and seizure point. The search of the petitioner's
home is sought to be justified by the doctrine of "hot pursuit,"
even though the officers conducting the search knew that
petitioner, the suspected criminal, was not at home.
At about 10:30 a.m. on January 3, 1964, a California bank was
robbed by two armed men; a police officer was killed by one of the
robbers. Another officer shot one of the robbers, Weaver, who was
captured a few blocks from the scene of the crime. Weaver told the
police that he had participated in the robbery and that a person
known to him as "Skinny" Gilbert was his accomplice. He told the
officers that Gilbert lived in Apartment 28 of "a Hawaiian sounding
named apartment house" on Los Feliz Boulevard. This information was
given to the Federal Bureau of Investigation and was broadcast to a
field agent, Kiel, who was instructed to find the apartment. Kiel
located the "Lanai," an apartment on Los Feliz Boulevard, at about
1 p.m., informed the radio control, and engaged the apartment
manager in conversation. While they were talking, a man gave a key
to the manager and told her that he was going to San Francisco for
a few days. Agent Kiel learned from the manager that Flood, one of
the two men who had rented Apartment 28 the previous day, was the
man who had just turned in the key and left by the rear exit. The
agent ran out into the alleyway but saw no one.
In the meantime, the federal officers learned from Weaver that
Gilbert was registered under the name of Flood. They also learned
that three men may have been involved in the robbery -- the two who
entered the bank and a third driving the getaway car. About 1:10
p.m., additional federal agents arrived at the apartment, in
response to Agent Kiel's radio summons. Kiel told them that the
resident of Apartment 28 was a Robert Flood who had just left. The
agents obtained a key from the
Page 388 U. S. 283
manager, entered the apartment, and searched for a person or a
hiding place for a person. They found no one. But they did find an
envelope containing pictures of petitioner; the pictures were
seized and shown to bank employees for identification. The agents
also found a notebook containing a diagram of the area surrounding
the bank, a clip from an automatic pistol, and a bag containing
rolls of coins bearing the marking of the robbed bank. On the basis
of this information, a search warrant was issued, and the automatic
clip, notebook, and coin rolls were seized. Petitioner was arrested
in Pennsylvania on February 26. The items seized during the search
of his apartment were introduced in evidence at his trial for
murder.
The California Supreme Court justified the search on the ground
that the police were in hot pursuit of the suspected bank robbers.
The entry of the apartment was lawful. The subsequent search and
seizure was lawful, since the officers were trying to further
identify suspects and to facilitate continued pursuit.
63 Cal. 2d
690, 408 P.2d 365.
I have set forth the testimony relating to the search more fully
in the
388
U.S. 263app2|>Appendix to this opinion. For the reasons
stated there, I cannot agree that "the facts do not appear with
sufficient clarity to enable us to decide" the serious question
presented.
Since the search and seizure took place without a warrant, it
can stand only if it comes within one of the narrowly defined
exceptions to the rule that a search and seizure must rest upon a
validly executed search warrant.
See, e.g., United States v.
Jeffers, 342 U. S. 48,
342 U. S. 51;
Jones v. United States, 357 U. S. 493;
Rios v. United States, 364 U. S. 253,
364 U. S. 261;
Stoner v. California, 376 U. S. 483,
376 U. S. 486.
One of these exceptions is that officers having probable cause to
arrest may enter a dwelling to make the arrest and conduct a
contemporaneous
Page 388 U. S. 284
search of the place of arrest
"in order to find and seize things connected with the crime as
its fruits or as the means by which it was committed, as well as
weapons and other things to effect an escape from custody."
Agnello v. United States, 269 U. S.
20,
269 U. S. 30.
This, of course, assumes that an arrest has been made, and that the
search "is substantially contemporaneous with the arrest and is
confined to the immediate vicinity of the arrest."
Stoner v.
California, supra at
376 U. S. 486.
In this case, the exemption is not applicable, since the arrest was
made many days after the search and at a location far removed from
the search.
Here, the officers entered the apartment, searched for
petitioner, and did not find him. Nevertheless, they continued
searching the apartment and seized the pictures; the inescapable
conclusion is that they were searching for evidence linking
petitioner to the bank robbery, not for the suspected robbers. The
court below said that, having legally entered the apartment, the
officers "could properly look through the apartment for anything
that could be used to identify the suspects or to expedite the
pursuit." 63 Cal. 2d at 707, 408 P.2d at 375.
Prior to this case, police could enter and search a house
without a warrant only incidental to a valid arrest. If this
judgment stands, the police can search a house for evidence even
though the suspect is not arrested. The purpose of the search is,
in the words of the California Supreme Court, "limited to and
incident to the purpose of the officers' entry" -- that is, to
apprehend the suspected criminal. Under that doctrine, the police
are given license to search for any evidence linking the homeowner
with the crime. Certainly such evidence is well calculated "to
identify the suspects," and will "expedite the pursuit," since the
police can then concentrate on the person whose home has been
ransacked.
Ibid.
Page 388 U. S. 285
The search and seizure in this case violates another limitation,
which concededly the ill-starred decision in
Harris v. United
States, 331 U. S. 145,
flouted,
viz., that a general search for evidence, even
when the police are in "hot pursuit" or have a warrant of arrest,
does not make constitutional a general search of a room or of a
house (
United States v. Lefkowitz, 285 U.
S. 452,
285 U. S.
463-464). If it did, then the police, acting without a
search warrant, could search more extensively than when they have a
warrant. For the warrant must, as prescribed by the Fourth
Amendment, "particularly" describe the "things to be seized." As
stated by the Court in
United States v. Lefkowitz, supra,
at
285 U. S.
464:
"The authority of officers to search one's house or place of
business contemporaneously with his lawful arrest therein upon a
valid warrant of arrest certainly is not greater than that
conferred by a search warrant issued upon adequate proof and
sufficiently describing the premises and the things sought to be
obtained. Indeed, the informed and deliberate determinations of
magistrates empowered to issue warrants as to what searches and
seizures are permissible under the Constitution are to be preferred
over the hurried action of officers and others who may happen to
make arrests. Security against unlawful searches is more likely to
be attained by resort to search warrants than by reliance upon the
caution and sagacity of petty officers while acting under the
excitement that attends the capture of persons accused of
crime."
Indeed, if, at the very start, there had been a search warrant
authorizing the seizure of the automatic clip, notebook, and coin
rolls, the envelope containing pictures of petitioner could not
have been seized.
"The requirement that warrants shall particularly describe the
things
Page 388 U. S. 286
to be seized . . . prevents the seizure of one thing under a
warrant describing another. As to what is to be taken, nothing is
left to the discretion of the officer executing the warrant."
Marron v. United States, 275 U.
S. 192,
275 U. S.
196.
The modern police technique of ransacking houses, even to the
point of seizing their entire contents, as was done in
Kremen
v. United States, 353 U. S. 346, is
a shocking departure from the philosophy of the Fourth Amendment.
For the kind of search conducted here was indeed a general search.
And if the Fourth Amendment was aimed at any particular target, it
was aimed at that. When we take that step, we resurrect one of the
deepest-rooted complaints that gave rise to our Revolution. As the
Court stated in
Boyd v. United States, 116 U.
S. 616,
116 U. S.
625:
"The practice had obtained in the colonies of issuing writs of
assistance to the revenue officers empowering them, in their
discretion, to search suspected places for smuggled goods, which
James Otis pronounced 'the worst instrument of arbitrary power, the
most destructive of English liberty, and the fundamental principles
of law, that ever was found in an English law book,' since they
placed 'the liberty of every man in the hands of every petty
officer.' This was in February, 1761, in Boston, and the famous
debate in which it occurred was perhaps the most prominent event
which inaugurated the resistance of the colonies to the oppressions
of the mother country. 'Then and there,' said John Adams, 'then and
there was the first scene of the first act of opposition to the
arbitrary claims of Great Britain. Then and there the child
Independence was born.'"
I would not allow the general search to reappear on the American
scene.
Page 388 U. S. 287
|
388
U.S. 263app2|
APPENDIX TO OPINION OF MR. JUSTICE DOUGLAS.
As the Court notes, there is some confusion in the record
respecting the timing of events surrounding the search and the
breadth of purpose with which the search was conducted. The
confusion results from the testimony of the agents involved.
Agent Kiel testified that Agents Schlatter and Onsgaard arrived
at the apartment at about 1:10 and entered the apartment a minute
or two after their arrival. Kiel received the photographs from
Agent Schlatter between 1:25 and 1:30.
Agent Schlatter testified that he, Agent Onsgaard and some local
police arrived at the apartment about 1:05, and that Agent Crowley
and one or two local police officers arrived in another car at the
same time. Schlatter briefly talked to Kiel and the apartment
manager, and then entered the apartment. Upon entering, he saw no
one. He "made a very fast search of the apartment for a person or a
hiding place of a person, and . . . found none." This search took
"a matter of seconds or a minute, at the outside," and,
"[a]fter we had searched for [a] person or persons, and no one
was there, it then became a matter of a stake-out under the
assumption that the person or persons involved would come
back."
It seemed to Schlatter that "an agent had [the photograph] in
his hand," when he first saw it, that it "was in the hands of an
agent or an officer," and Schlatter had "a vague recollection that
[the agent or officer told him he had found it] in the bedroom. . .
." There were a number of photographs. Schlatter took the
photographs out to Kiel and instructed him to take one of them to
the savings and loan association and see if anyone there could
recognize the photograph. Schlatter testified that he was in the
apartment for about 30 minutes after making the search, and left
other agents behind when he left.
Page 388 U. S. 288
Agent Crowley testified that he entered the apartment "around
1:30, give or take a few minutes either way," and that he would say
that the other officers had been in the apartment less than five
minutes before he entered. He believed that "the officers and the
other agent who had been with [him] at the rear of the building
when the first entry was made, entered with [him]." When Crowley
entered the apartment, it "had already been searched for people."
He received
"instructions . . . to look through the apartment for anything
we could find that we could use to identify or continue the pursuit
of this person without conducting a detailed search."
In the bedroom, on the dresser, Crowley saw an envelope bearing
the name "Marlboro Photo Studio"; it appeared to him to be an
envelope containing photos, and he could see that there was
something inside. Crowley opened the envelope and saw several
copies of photographs. He discussed the matter with
"Onsgaard, who was in charge in the building, and he instructed
[Crowley] to give it to another agent for him to utilize in
pursuing the investigation, and [he was] reasonably certain that
that agent was Mr. Schlatter."
This was about 1:30, according to Crowley. In the course of his
search which turned up the photographs, Crowley
"turned over [items] to see what was on the reverse, such as
business cards, sales slips from local stores, that sort of item
which might have been folded and would appear to possibly contain
information of value to pursuit."
He relayed the information obtained in this manner to the man
coordinating the operation. Crowley remained in the apartment until
the next morning.
Agent Townsend testified that he arrived at the apartment
"[s]ometime between perhaps 1:30 and 2:00." Within an hour of his
arrival, he began a search. Townsend testified that he, Agent
Crowley, another agent and a local officer "looked through the
bedroom closet and
Page 388 U. S. 289
the dresser, and I think the headstand." This was after it was
known that no one, other than agents and police officers, was in
the apartment. Townsend stated that the agents and officers were
"[i]n and out of the bedroom," that he found money in the bedroom
dresser about an hour after he arrived in the apartment, and that
he could not "say specifically" whether Crowley was there at that
time.
Thus, there is some conflict regarding the times at which the
events took place and with respect to the nature of the searches
conducted by the various officers. The way I read the record,
however, it is not in such a state "that the facts do not appear
with sufficient clarity to enable us to decide" the question
presented. Crowley's testimony that he came upon the photographs
while searching "for anything . . . that we could use to identify
or continue the pursuit" stands uncontradicted, as does his
testimony that the apartment had already been searched for a person
prior to his search uncovering the photographs. Schlatter's
testimony that the operation "became a matter of a stake-out" after
the unsuccessful search for a person does not contradict Crowley's
testimony. A search for identifying evidence is certainly
compatible with a "stake-out." And Crowley best knew what he was
doing when he discovered the photographs. Nor does Townsend's
testimony that he and others, perhaps including Crowley, conducted
a detailed search conflict with Crowley's testimony. First, the
record indicates that the detailed search was conducted after the
photographs had been found. According to the testimony of Kiel and
Schlatter, Schlatter gave the photographs to Kiel at about 1:30;
according to Townsend, he arrived sometime between 1:30 and 2.
Second, even if the detailed search took place before Crowley found
the photographs and Crowley participated in that search, that does
not indicate that Crowley's search, which turned
Page 388 U. S. 290
up the photographs, was more limited than Crowley claimed. If
anything, it would indicate that his search was more general than
he stated. Finally, Townsend's testimony as to the general search
does not conflict with Schlatter's testimony that the operation
became a "stakeout" after the suspect was not found. As I have
said, a "stake-out" does not preclude a detailed search for
evidence. And, the record indicates that Schlatter was not in the
apartment when Townsend and the others conducted the detailed
search.
The way I read the record, the photographs were discovered in
the course of a general search for evidence. But even if Crowley is
not believed, and his testimony relating to the nature of his
search is thrown out, and it is simply assumed that he came upon
the envelope in the course of a search for the suspect, there was
no reason to pry into the envelope and seize the pictures -- other
than to obtain evidence. An envelope would contain neither the
suspect nor the weapon.
MR. JUSTICE WHITE, whom MR. JUSTICE HARLAN and MR. JUSTICE
STEWART join, concurring in part and dissenting in part.
I concur in Parts I, II, and III of the Court's opinion, but,
for the reasons stated in my separate opinion in
United States
v. Wade, ante, p.
388 U. S. 250,
I dissent from
388 U. S. and
would therefore affirm the judgment of the Supreme Court of
California.
MR. JUSTICE FORTAS, with whom THE CHIEF JUSTICE joins,
concurring in part and dissenting in part.
I concur in the result -- the vacation of the judgment of the
California Supreme Court and the remand of the case -- but I do not
believe that it is adequate. I would reverse and remand for a new
trial on the additional ground that petitioner was entitled by the
Sixth and
Page 388 U. S. 291
Fourteenth Amendments to be advised that he had a right to
counsel before and in connection with his response to the
prosecutor's demand for a handwriting exemplar.
1. The giving of a handwriting exemplar is a "critical stage" of
the proceeding, as my Brother BLACK states. It is a "critical
stage" as much as is a lineup.
See United States v. Wade,
ante, p.
388 U. S. 218.
Depending upon circumstances, both may be inoffensive to the
Constitution, totally fair to the accused, and entirely reliable
for the administration of justice. On the other hand, each may be
constitutionally offensive, totally unfair to the accused, and
prejudicial to the ascertainment of truth. An accused whose
handwriting exemplar is sought needs counsel: is he to write "Your
money or your life?" Is he to emulate the holdup note by using red
ink, brown paper, large letters, etc.? Is the demanded handwriting
exemplar, in effect, an inculpation -- a confession?
Cf.
the eloquent arguments as to the need for counsel in the Court's
opinion in
United States v. Wade, supra.
2. The Court today appears to hold that an accused may be
compelled to give a handwriting exemplar.
Cf. Schmerber v.
California, 384 U. S. 757
(1966). Presumably, he may be punished if he adamantly refuses.
Unlike blood, handwriting cannot be extracted by a doctor from an
accused's veins while the accused is subjected to physical
restraint, which
Schmerber permits. So, presumably, on the
basis of the Court's decision, trial courts may hold an accused in
contempt and keep him in jail -- indefinitely -- until he gives a
handwriting exemplar.
This decision goes beyond
Schmerber. Here, the accused,
in the absence of any warning that he has a right to counsel, is
compelled to cooperate, not merely to submit; to engage in a
volitional act, not merely to suffer the inevitable consequences of
arrest and state custody; to take affirmative action which may not
merely identify
Page 388 U. S. 292
him, but tie him directly to the crime. I dissented in
Schmerber. For reasons stated in my separate opinion in
United States v. Wade, supra, I regard the extension of
Schmerber as impermissible.
In
Wade, the accused, who is compelled to utter the
words used by the criminal in the heat of his act, has at least the
comfort of counsel -- even if the Court denies that the accused may
refuse to speak the words -- because the compelled utterance occurs
in the course of a lineup. In the present case, the Court deprives
him of even this source of comfort and whatever protection
counsel's ingenuity could provide in face of the Court's opinion.
This is utterly insupportable, in my respectful opinion. This is
not like fingerprinting, measuring, photographing -- or even
blood-taking. It is a process involving the use of discretion. It
is capable of abuse. It is in the stream of inculpation.
Cross-examination can play only a limited role in offsetting false
inference or misleading coincidence from a "stacked" handwriting
exemplar. The Court's reference to the efficacy of
cross-examination in this situation is much more of a comfort to an
appellate court than a source of solace to the defendant and his
counsel.
3. I agree with the Court's condemnation of the lineup
identifications here and the consequent in-court identifications,
and I join in this part of its opinion. I would also reverse and
remand for a new trial because of the use of the handwriting
exemplars which were unconstitutionally obtained in the absence of
advice to the accused as to the availability of counsel. I could
not conclude that the violation of the privilege against
self-incrimination implicit in the facts relating to the exemplars
was waived in the absence of advice as to counsel.
In re
Gault, 387 U. S. 1,
387 U. S. 41-42
(1967);
Miranda v. Arizona, 384 U.
S. 436 (1966).