The Warren Court as Defender of State
and Federal Criminal Laws: A Reply
to Those Who Believe That the
Court Is Oblivious to the
Needs of Law Enforcement
ARNOLD H. LOEWY*
Introduction
In recent months, the Supreme Court has been subjected to congressional and other criticism unsurpassed by any since 1937. Three
items which bear specific mention are (1) the Crime Control Bill'
by which Congress purported to overrule, inter alia, Miranda v.
Arizona2 and United States v. Wade,3 (2) the hearings on the Supreme Court by the Senate Judiciary Committee's Subcommittee on
Separation of Powers,4 and (3) the extensive questioning of Associate
Justice Abe Fortas upon his nomination as Chief Justice.5
Much of the criticism has been directed at decisions which, the
critics feel, have made enforcement of the criminal law more diffi* Associate Professor of Law, University of North Carolina. B.S., LL.B.,
Boston University; LL.M., Harvard University.
1. Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 3501-02
(Supp. 1969).
2. 384 U.S. 436 (1966); see text accompanying notes 90-95 infra.
3. 388 U.S. 218 (1967); see text accompanying notes 101-11 infra.
4. Hearings on the Supreme Court Before the Subcomm. on Separation of
Powers of the Senate Comm. on the Judiciary, 90th Cong., 2d Sess. (1968).
5. The Justice's nomination was withdrawn after a Senate filibuster precluded it from reaching a vote. Several months later he resigned from the
Court under pressure.
July 1969 Vol. 37
No. 5
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cult. Included in this group are those decisions which allowed
distribution of allegedly obscene material, 6 forbade punishment of
those engaged in certain disruptive demonstrations,7 permitted federal challenges to pending state prosecutions,8 upheld fourth, 9 fifth, 0
sixth," and eighth 2 amendment claims presented by those convicted
of crime, and invalidated other criminal convictions on general due
process' 3 or equal protection 4 grounds. However, in order to evaluate fairly the Court's record in this area, some attention should be
given to the other side of the coin, i.e., those decisions which have
upheld state criminal laws or procedures. It is the purpose of this
article to focus attention on these decisions. In order to make analysis
manageable, only those cases decided during the 1965, 1966 and 1967
terms will be considered. This is a significant time period because
Mirandav. Arizona and United States v. Wade, two decisions attacked
by the Crime Control Bill, were decided during these terms, and because these terms represent the entire tenure of Mr. Justice Fortas
prior to his nomination as Chief Justice.
It is important at the outset to emphasize that the purpose of this
article is neither to praise nor defend the Court. Indeed, as will become apparent, many of the decisions discussed herein seem more
worthy of condemnation than praise, both as to result and methodology. Rather, the purpose of this article is to highlight the extensive concern for state and federal criminal laws and procedures
that the so-called "ultra-liberal"'15 Supreme Court has displayed in
recent years.
Obscenity
It is doubtful whether any series of decisions has stirred the emotions
of Supreme Court critics more than that legitimating the distribution
of allegedly obscene material. 16 Undoubtedly, the Court's require6. E.g., A Book Named "John Cleland's Memoirs of a Woman of Pleasure"
v. Attorney General, 383 U.S. 413 (1966).
7. E.g., Brown v. Louisiana, 383 U.S. 131 (1966); see text accompanying
notes 51-54 infra.
8. E.g., Dombrowski v. Pfister, 380 U.S. 479 (1965); see text accompanying notes 84-88 infra.
9. E.g., Mapp v. Ohio, 367 U.S. 643 (1961); see text accompanying notes
122-25 infra.
10. E.g., Miranda v. Arizona, 384 U.S. 436 (1966); see text accompanying
notes 90-95 infra.
11. E.g., United States v. Wade, 388 U.S. 218 (1967); see text accompanying
notes 10U-12 infra.
12. E.g., Robinson v. California, 370 U.S. 660 (1962); see text accompanying
notes 16u-64 infra.
13. E.g., Jackson v. Denno, 378 U.S. 368 (1964).
14. E.g., Griffin v. Illinois, 351 U.S. 12 (1956).
15. A term frequently employed by Supreme Court critics.
16. For example, Senator Strom Thurmond, brandishing allegedly obscene
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ment that obscenity predominantly appeal to the prurient interest, be
patently offensive, and be utterly without redeeming social importance allows some rather offensive material to be sold. 17 Indeed, if
the phrase "utterly without redeeming social importance" were taken
literally it is doubtful that anything could be banned, inasmuch as
there exists a school of psychology which believes that exposure to
the hardest core pornography may deter certain perverts or potential
perverts from committing sexual offenses.' 8 Moreover, even if this
theory were totally discredited, the fact that some people like to
read obscenity should qualify as social importance.' 9 However, it
seems clear that the Supreme Court does not intend the phrase "utterly without redeeming social importance" to be read as absolutely
as the words imply.
In addition to allowing punishment of people who distribute literature whose only importance lies in its arguably therapeutic value
for perverts or in its capacity to entertain a minority of the population, the Supreme Court has rendered three recent decisions which
have significantly increased the states' ability to deal with what many
consider to be the most objectionable aspects of obscenity.
The first of these decisions, Ginzburg v. United States, 20 held that
one whose advertising emphasizes the sexually provocative (prurient) aspects of his literature cannot raise the defense of redeeming
social importance. An analysis of Ginzburg is particularly revealing.
Ralph Ginzburg published a magazine called "Eros" which he honestly and reasonably believed was not obscene within the meaning of
obscenity that had theretofore been enunciated by the Supreme
Court.2 1 In fact, in affirming Ginzburg's conviction, the Supreme
Court specifically refused to find "Eros" obscene; rather, it assumed
that "Eros" in the abstract was not obscene. Nevertheless the Court
affirmed Ginzburg's conviction for violating a federal statute which
punishes those who send obscenity through the mail, although there
were at least three valid grounds for reversal.
First: The statute under which Ginzburg was convicted precludes the mailing of "[e] very obscene, lewd, lascivious, indecent,
filthy or vile article, matter, thing, device, or substance .... ,,22
Nothing in the statute suggests that non-obscene material can be
treated as obscene because of the manner in which it is marketed.
Furthermore, the statute, which was then 101 years old, 23 had never
ered for promotion to Chief Justice) be invited back to explain his views on
obscenity. Durham, N.C. Morning Herald, July 24, 1968, at 1-2.
17. All three must coalesce. If one is missing, the material will not be
deemed obscene. A Book Named "John Cleland's Memoirs of a Woman of
Pleasure" v. Attorney General, 383 U.S. 413, 418 (1966).
18. See id. at 431-32 (Douglas, J., concurring); Murphy, The Value of
Pornography,10 WAYNE L. REv. 655, 661-62 n.19 (1964).
19. See Ginzburg v. United States, 383 U.S. 463, 489-91 (1966)
J., dissenting).
20. 383 U.S. 463 (1966).
21. E.g., Roth v. United States, 354 U.S. 476 (1957).
22. 383 U.S. at 464 n.2, quoting from 18 U.S.C. § 1461 (1964).
23. 383 U.S. at 494-95 (Harlan, J., dissenting).
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previously been given such an interpretation by the Supreme Court. 24
The Court's response to this argument was a rather cryptic footnote:
Our conclusion is consistent with the statutory scheme. Although
§ 1461, in referring to "obscene . . .matter" may appear to deal with
the qualities of material in the abstract, it is settled that the mode of
distribution may be a significant part in the determination of the obscenity of the material involved. United States v. Rebhuhn [109 F.2d
512 (2d Cir. 1940) ]. Because the statute creates a criminal remedy.
it readily admits such an interpretation ....25
Thus, the Court's sole justification for interpreting the statute as it
did was that such an interpretation "is settled" and that a statute
creating a criminal remedy "readily admits of such an interpretation."
It seems strange, to say the least, to hold that one 1940 court of
appeals decision has "settled" the law. This is not to suggest that the
Court could not adopt this decision, but "[i]f new ground is to be
broken, the ground must be justified and not treated as though it
were old ground. ' 20 Moreover, the fact that the statute creates a
criminal remedy cuts against rather than in favor of the Court's
interpretation, for it is axiomatic that criminal statutes are to be
strictly construed. 27 Therefore, it makes no sense to use'the fact of a
criminal remedy to justify expanding the statute beyond its plain
28
meaning.
In addition, the Court gave rather cavalier treatment to the constitutional problem created by its interpretation by noting: "We
perceive no threat to First Amendment guarantees in thus holding
that in close cases evidence of pandering may be probative with
respect to the nature of the material in question and thus satisfy the
Roth test."20 Yet Ginzburg's conviction was upheld essentially because his manner of distribution was not very nice. However, the
protections of the fourth and fifth amendments extend to all persons
equally-whether they are nice or not.30 A fortiori, this has been
true of the first amendment, whose purpose is not to protect indi24. This is not to say it had never been suggested by anyone. For an
opinion espousing it, see United States v. Rebhuhn, 109 F.2d 512 (2d Cir.
1940); cf. Roth v. United States, 354 U.S. 476, 494-96 (1957) (Warren, C.J.,
concurring); Lockhart & McClure, Censorship of Obscenity: The Developing
ConstitutionalStandards,45 1vlnmx. L. REV. 5, 77-88 (1960).
25. 383 U.S. at 474 n.15.
26. Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450,
473 (1959) (Frankfurter, J., dissenting).
27. See, e.g., McBoyle v. United States, 283 U.S. 25 (1931).
28. Cf. Dombrowski v. Pfister, 380 U.S. 479, 489 (1965).
29. 383 U.S. at 474.
30. "It is a fair summary of history to say that safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with
his case in the context of what are really the great themes expressed by the
Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56 69 (1950)
(Frankfurter, J., dissenting). And few would describe Ernesto M~iranda as a
"paragon of virtue." Miranda v. Arizona, 384 U.S. 436 (1966).
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viduals but to insure the dissemination of constitutionally protected
speech such as Ginzburg's publications were assumed to be. 31 Thus,
the Supreme Court could have reversed Ginzburg's conviction on
the grounds that neither the statute nor the Constitution authorized
his conviction.
Second: The interpretation of the statute was sufficiently novel
that the Court should not have applied it to Ralph Ginzburg. In
recent years, prospective application of new constitutional doctrines
has been the rule rather than the exception. 32 The justice of these
prospective decisions is questionable in that some defendants do not
receive the benefit of a constitutionally required rule that other defendants similarly situated do receive.8 3 However, that objection is
not applicable to a case like Ginzburg where the new rule favors the
Government, which will receive its benefit in all future cases.
Furthermore, while application of a new rule to one in Ginzburg's
position is not technically an ex post facto law, it is sufficiently
similar that it should be avoided by a just government. 4 To illustrate, consider Bouie v. City of Columbia,35 where
the petitioners were convicted of "entry upon the lands of another...
after notice from the owner or tenant prohibiting such entry .. .
Their alleged criminal activity consisted of "sitting in" at a lunch
counter after being asked to leave. Petitioners argued that the statute did not proscribe their activity, since they were not told to leave
until after they had entered. The Supreme Court of South Carolina
refused to interpret the statute so narrowly and affirmed the convic-
tion. 37 The United States Supreme Court reversed on the ground that
petitioners had "no warning whatever, that their conduct . . . would
violate the statute,"38 even though one of the petitioners "testified that
39
they had intended to be arrested."
Since the application of the obscenity statute in Ginzburg appears to
be no less novel or surprising than the application of the trespass
statute in Bouie, the Supreme Court had ample authority to reverse
Ginzburg's conviction on that ground.
Third: Even under the Court's standard which, holds that it is
sufficient for conviction if non-obscene material is advertised as though
it were obscene, Ginzburg was not clearly guilty. One of the advertisements relied upon by the Court read as follows:
EROS is a new quarterly devoted to the subjects of Love and Sex.
In the few short weeks since its birth, EROS has established itself as
the rave of the American intellectual community-and the rage of
31. For a more complete exposition of this concept, see Dombrowski v.
Pfister, 380 U.S. 479, 486-87 (1965).
32. See text accompanying notes 179-99 infra.
33. Loewy The Old Order Changeth-But for Whom?, 1 SUFFOLK U.L.
REv. 1 (1967); Currier, Time and Change in Judge-Made Law: Prospective
Overruling,51 VA. L. REv. 201 (1965).
34. 383 U.S. at 477 (Black, J., dissenting).
35. 378 U.S. 347 (1964).
36. S.C. CODE § 16-386 (Supp. 1960), quoted in 378 U.S. at 349 n.1.
37. City of Columbia v. Bouie, 239 S.C. 570, 124 S.E.2d 332 (1962).
38. 378 U.S. at 355.
39. Id. at 355 n.5. The entire quotation is from Loewy, Free Speech: The
"Missing Link" in the Law of Obscenity, 16 J. PuB. L. 81, 96 (1967) (footnotes
renumbered).
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prudes everywhere! And it's no wonder: EROS handles the subjects
of Love and Sex with complete candor. The publication of this magazine-which is frankly and avowedly concerned with erotica-has been
enabled by recent court decisions ruling that a literary piece or painting, though explicitly sexual in content, has a right to be published if
it is a genuine work of art.
EROS is a genuine work of art .... 40
If this constitutes a prurient appeal, it is difficult to know what
constitutes an intellectual appeal in regard to sexual matters. 41 At
the very least, the Court should have remanded the case for a new
trial on the issue of whether this advertisement did in fact constitute
a prurient appeal. The Court's response to this argument (again
in a footnote) was that "the trial transcript clearly reveals that at
several points the Government announced its theory that made the
mode of distribution relevant to the determination of obscenity, and
the trial court admitted evidence, otherwise irrelevant, toward that
end. ' 42 Assuming the accuracy of this observation, at least two
reasons would have justified a new trial. First, notwithstanding the
prosecutor's theory, it was unlikely that defense counsel attempted to
establish the purity of Ginzburg's motives since the Supreme Court
had never previously indicated that impure motives would help the
Government's case. Second, the trial court specifically found the
three publications to be obscene in the abstract, thereby eliminating
the necessity of deciding whether Ginzburg's advertisements were
sufficiently salacious to justify a conviction for mailing publications
which in the abstract were non-obscene. 43 At a minimum, Ginzburg
should have had his day in court on this issue.
Mishkin v. New York 44 added another gun to the state and federal
arsenals of anti-obscenity weapons by ruling that literature which
is designed to appeal to the prurient interest of deviant groups should
be judged by its effect on that group rather than on the average
person. In so holding, the Court rejected Mishkin's argument that
since his material disgusted the average person rather than appealed
to his prurient interest it was not obscene. Thus, in the interest of
protecting the public, the Court modified its previously announced
Roth test, thereby allowing another "smut peddler" to be imprisoned.
The final obscenity case worth noting, Ginsberg v. New York, 45
40. 383 U.S. at 469 n.9 (emphasis added).
41. Indeed, a publisher of sexy books might be well advised to say nothing
about his book and let little old ladies take copies of it off the bookshelf and
be horrified.
42. 383 U.S. at 466 n.6.
43. In convicting Ginzburg, District Judge Body said: "Each publication
is to be judged by itself, cover to cover, and as a whole." United States v.
Ginzburg 224 F. Supp. 129, 137 (E.D. Pa. 1963), affd, 338 F.2d 12 (3d Cir.
1964), ai'd, 383 U.S. 463 (1966).
44. 383 U.S. 502 (1966).
45. 390 U.S. 629 (1968).
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involved what certainly should be of the greatest concern to those
opposed to obscenity, viz., distribution of obscene material to children. The Court specifically held that a state may punish one who
sells to minors (under 17) material which "(i) predominantly appeals
to the prurient, shameful or morbid interest of minors, and (ii) is
patently offensive to prevailing standards in the adult community as
a whole with respect to what is suitable material for minors, and (iii)
46
is utterly without redeeming social importance for minors.1
As in Ralph Ginzburg's case, there were cogent arguments militating against the conviction of Sam Ginsberg. Since no prior decision
had ever squarely held that the standard of obscenity for minors is
different from that for adults, 47 this too may have been a proper case
for a prospective decision. 48 This conclusion is buttressed by the fact
that similar magazines had previously been held to be non-obscene. 49
ment.
Furthermore, this case had the unsavory odor of entrap-
The purchaser of the magazine was a 16-year-old boy who
"was enlisted by his mother to go to the luncheonette and buy
some 'girlie' magazines so that Ginsberg could be prosecuted." 50
Nevertheless, Sam Ginsberg's conviction was affirmed.
By these three decisions (Ginzburg, Mishkin and Ginsberg) affirming convictions under obscenity statutes despite the presence of strong
contrary arguments, the Supreme Court has manifested a very
clear concern that enforcement officials not be rendered impotent
against the evils of obscenity.
Action Versus Speech
It is not an uncommon belief that Supreme Court decisions have encouraged expressions of ideas by action rather than by speech. Mr.
Justice Black speaking for Justices Clark, Harlan, and Stewart
summed up this view in his dissent in Brown v. Louisiana,51 which reversed the breach of peace convictions of five Negroes who, after
being served by a normally segregated library, refused to leave upon
request, but remained as a protest against the library's usual policy
of segregation.
[I] have never believed that [the first amendment] gives any person or
group of persons the constitutional right to go wherever they want,
whenever they please, without regard to the rights of private or public
property or to state law ...
The novel constitutional doctrine of the
46. Id. at 633.
47. But cf. Butler v. Michigan, 352 U.S. 380 (1957); Prince v. Massachusetts,
321 U.S. 158 (1944).
48. Although concededly not as good a case as Ginzburg.
49. Redrup v. New York, 386 U.S. 767 (1967).
50. 390 U.S. at 671-72 (Fortas, J., dissenting). Admittedly this did not
constitute entrapment in the technical legal sense of the term, see Sherman
v. United States, 356 U.S. 369 (1958). Moreover, even if it did, entrapment
is not a constitutional defense. Nevertheless, if a conviction can be obtained
in this manner, book selling may become a more hazardous occupation than
the first amendment should tolerate.
51. 383 U.S. 131, 166 (1966).
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prevailing opinion nevertheless exalts the power of private nongovernmental groups to determine what use shall be made of governmental
property over the power of elected governmental officials of the
52
States and the Nation.
This "novel constitutional doctrine," as Justice Black called it, commended itself to only three members of the Court. Mr. Justice
White, one of two concurring justices, based his concurrence on equal
protection grounds: "On this record, it is difficult to avoid the conclusion that petitioners were asked to leave the library because they
were Negroes. If they were, their convictions deny them equal protection of the laws." 53 Earlier in his opinion Justice White had
noted: "I would consider a refusal to leave the library and an insistence upon violating a generally applicable condition concerning
the use of the library evidence of an intent to breach the peace
constitutionally sufficient to sustain a conviction."5 4 Thus, five Justices (Black, Clark, Harlan, Stewart and White) specifically and unequivocally rejected the notion that the first amendment gives
private groups the right to demonstrate wherever and however they
please.
Less than a year later, these five Justices, speaking through Mr.
Justice Black, affirmed the trespass conviction of Harriett Adderley
and her fellow demonstrators for holding a demonstration on the
grounds of a jailhouse. Adderley v. Florida55 was certainly not a
clear case for affirmance. First, the subject matter of the protestthe arrest of other Negroes for demonstrating against state-imposed
segregation in movie theatres and within the jailhouse itself-was
legitimate. Second, the jailhouse was a particularly appropriate
place for this demonstration inasmuch as it was within its segregated
confines that the other Negroes were incarcerated. Furthermore, as
the dissent noted, a "jailhouse . . . is one of the seats of government"5 6 and "the ... grounds were not marked with 'NO TRES-
PASSING!' signs.' '57 In addition, the petitioners were not disorderly
and interfered little, if any, with the smooth functioning of the
58
premises.
Finally, although the crime with which petitioners were charged
was not merely trespass, but "trespass with a malicious and mischievous intent," it was not entirely clear that they had acted maliciously. The Court's sole response to this argument was that the
petitioners did not challenge the trial court's definition of "ma52. Id.
53. Id. at 151.
54. Id. at 150.
55. 385 U.S. 39 (1966).
56. Id. at 49 (Douglas, J., dissenting).
57. Id. at 52.
58. Id. at 51-52.
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licious."'5 9 Although this observation is accurate, it completely ignores the argument that petitioners did make, viz.: their conduct did
not fall within the trial court's definition of malicious, which was
"that the wrongful act shall be done voluntarily, unlawfully, and
without excuse or justification." 60 Petitioners contended that they
"did not act 'without just cause or excuse' in view of the stateenforced segregation in the downtown movie theatres as well as the
jail itself, the fact that some demonstrators arrested the prior day
were being kept inside the jail, the peaceful and orderly nature of
the petitioners' demonstration ...
etc.161 The Court sub silentio
rejected this argument, since in affirming the convictions it must
necessarily have held that the petitioners' demonstration was without justification or excuse, or at least that a jury could so find.
Even assuming this to be a perfectly valid application of the trial
court's standard, the petitioners, like Ralph Ginzburg prior to his
arrest, were not likely to have assumed the existence of the court's
standard before engaging in their conduct. Certainly a reasonable
would-be demonstrator in the position of Miss Adderley, who read a
statute proscribing malicious trespass, would not be likely to conclude
that his conduct would come within the ambit of the prohibition.
Hence, it would have been entirely proper for the Court to have
reversed Miss Adderley's conviction on the rationale of Boui'e v. City
62
of Columbia.
In view of the justice of the petitioners' position concerning the
conditions they were protesting and the availability of the Bouie
rationale for reversal, it is appropriate to consider the reason for the
Court's decision to affirm. Of course, one possibility is that the Bouie
argument was not explicitly argued by petitioners.6 3 However, the
real reason may be indicated in the last few sentences of the Court's
opinion:
The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is .lawfully
dedicated. For this reason there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over
the jail custodian's objections, because this "area chosen for the peaceful civil rights demonstration was not only 'reasonable' but also particularly appropriate . ... ." Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever
and however and wherever they please. That concept of constitutional
law was vigorously and forthrightfully rejected in two of the cases
petitioners rely on ....
We reject it again. The United States Con59. Id. at 43.
60. Id. at 43 n.2.
61. Brief for Petitioner at 23.
62. 378 U.S. 347 (1964). I am indebted to John Billingslea, a recent graduate of the University of Connecticut School of Law, for suggesting this
argument.
63. The argument which was presented was that there was insufficient
evidence to support the charge. This is slightly different from the Bouie
argument which is that there was insufficient warning that the conduct
charged would constitute a crime.
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stitution does not forbid a State to control the use of its own property
64
for its own lawful non discriminatory purpose.
With these words, the Court warned minority groups that the
first amendment does not always afford them the opportunity to
make their point in the most effective possible manner.
The scope of Adderley was significantly extended last term in
United States v. O'Brien,65 in which the Court (with only one dissent)
upheld O'Brien's conviction for burning his draft card. The Court's
rationale was stated by "liberal" Chief Justice Warren as follows:
[W]e think it clear that a government regulation is sufficiently justified
if it is within the constitutional power of Government; if it furthers
an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no
66
greater than is essential to the furtherance of that interest.
Thus, the Adderley doctrine (which had held that a legitimate state
interest in precluding the public from a particular place justified
punishing anyone who congregated at that place, including those who
wished to use the place as an effective platform from which to present a grievance) was extended to allow 'any substantial governmental interest unrelated to free speech to justify what the Court
called "incidental restriction on alleged First Amendment freedom."
The governmental interest which the Court found sufficiently "important or substantial" in O'Brien was essentially that situations
can be imagined in which a registrant's possession of his draft card is
administratively convenient to the smooth functioning of the Selective Service System.61
Adderley and O'Brien are bitter pills for staunch libertarians. Of
course, Florida's jails and the United States' Selective Service System might be run somewhat more efficiently if Miss Adderley and
Mr. O'Brien had not behaved in their respective manners. Nevertheless, many would contend that the violence done to Florida and
the United States by their actions was minimal when contrasted to
the violence done to the first amendment by these decisions. Indeed,
the Court did not think it necessary to weigh the substantiality of
the governmental interest against the first amendment interest involved. Rather, once it concluded that the governmental interest
was at all substantial, it found further analysis unnecessary. 68 Furthermore, in O'Brien the Court refused to consider the argument that
in passing the draft card burning statute, Congress was primarily
motivated by a desire to suppress the transmission of unpatriotic
64.
65.
66.
67.
68.
385 U.S. at 47-48.
391 U.S. 367 (1968).
Id. at 377.
Id. at 378-80.
Compare the concurring opinion of Harlan, J. Id. at 388-89.
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ideas rather than to insure the orderly administration of the Selective
Service System.69 It therefore appears that the Supreme Court is
firmly committed to the proposition that the first amendment cannot
be successfully invoked by one whose actions have interfered with
any substantial governmental interest.7 0
In addition to limiting the substance of first amendment rights,
the Court has also imposed significant limitations on the instances in
which these rights can be raised. For example, in Walker v. City of
Birmingha 7 1 the Court subordinated a first amendment claim to a
rule which can fairly be described as a procedural technicality. Dr.
Martin Luther King and several other Negro clergymen had been
convicted of criminal contempt for leading a Good Friday demonstration in contravention of an injunction forbidding such demonstrations without a permit. The basis of the injunction was a Birmingham ordinance which forbade holding a demonstration unless a
permit had been obtained. Whenever one applied for a permit, it
was to be granted unless in the judgment of the commission, "the
public welfare, peace, safety, health, decency, good order, morals or
convenience require it be refused."'7 2 Petitioners argued that both
the statute and the injunction violated the first amendment. However, in affirming the convictions, the Court held that defendants
had not properly raised the constitutional question:
The generality of the language contained in the Birmingham parade
ordinance upon which the injunction was based would unquestionably
raise substantial constitutional issues concerning some of its provisions ....
The breadth and vagueness of the injunction itself would
also unquestionably be subject to substantial constitutional question.
But the way to raise that question was to apply to the Alabama courts
to have the injunction modified or dissolved. The injunction in all
events clearly prohibited mass parading without a permit, and the evidence shows that the petitioners fully understood that prohibition
when they violated it.73
It seems abundantly clear that had the city not obtained an injunction, the petitioners could not have been convicted of violating
the statute.74 Moreover, five years earlier, in In re Green,75 the
Court had held that an attorney who urged union members to violate
a state court injunction in order to assert its invalidity on the ground
that the National Labor Relations Act had pre-empted jurisdiction
69. Concededly, in constitutional adjudication, legislative motives are not
normally relevant. However, in light of the great value placed upon first
amendment rights, one would have thought that proof of a purpose to frustrate free expression, in the guise of passing what would otherwise be a
legitimate statutute, would not be entirely irrelevant. Cf. Bailey v. Drexel
Furniture Co., 259 U.S. 20 (1922).
70. Amalgamated Food Employees Local, 590 v. Logan Valley Plaza, Inc.,
391 U.S. 308 (1968), is not contrary. In that case the Court held that the
pickets had not interfered with any substantial governmental or private interest other than the desire of the shopping center and its tenant not to have a
particular view presented in that place. Compare Mr. Justice Black's dissent,
id.at 327.
71. 388 U.S. 307 (1967).
72. Id. at 309-10 n.1, quoting from BnumNqGHAM CiTY CODE § 1159.
73. 388 U.S. at 316-17.
74. See, e.g., Cantwell v. Connecticut, 310 U.S. 296 (1940).
75. 369 U.S. 689 (1962).
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could not be convicted of contempt. The patent unconstitutionality
of punishing petitioners' conduct under the statute and the availability of the Green rationale indicate that the Court would have been
justified in reversing the convictions. The Court, however, (once
more in a footnote) 6 distinguished Green in three ways. Firstly,
since the question in Green was pre-emption, it was argued that the
state court lacked jurisdiction to enter the injunction. Secondly, in
Green, the petitioner attempted to challenge the validity of the injunction before violating it by applying for a removal of the injunction. Finally, the petitioner in Green had attempted to prove
that the trial court had agreed to the violation of the injunction as an
appropriate means of testing its validity.
Although the first point is colorable, it is difficult to believe that a
state court has any more jurisdiction to issue an injunction that violates the Constitution than it does to issue one that violates a statute. Surely the word "jurisdiction" ought not to be accorded sufficient talismanic power to turn a "preferred" freedom into one subordinate to a statute.77 While the alleged agreement of the trial
court to the violation could serve to distinguish Green from Walker,
that point was not relied on by the Green Court.78 The fact that the
petitioner attempted to get the injunction dissolved was also not
relied on in Green. Nevertheless, this factor probably explains the
Walker Court's refusal to apply the Green rationale, for the Court
noted:
This case would arise in quite a different constitutional posture if the
petitioners, before disobeying the injunction, had challenged it in the
Alabama courts, and had been met with delay or frustration of their
constitutional claims. But there is no showing that such would have
been the fate of a timely motion to modify or dissolve the injunction.
There was an interim of two days between the issuance of the injunction and the Good Friday march. The petitioners give absolutely no
explanation of why they did not make some application to the state
court during that period. 79
Thus, it appears that the Court is prepared to sacrifice even first
amendment values in order to give the utmost deference to state
judicial proceedings. This is underscored by the Court's closing remarks: "One may sympathize with the petitioners' impatient com76. 388 U.S. at 315 n.6.
77. "One must wonder what an odd inversion of values it is to afford
greater respect to an 'arguable' collision with federal labor policy than an
assumedly patent interference with constitutional rights so high in the scale of
constitutional values that this Court has described them as being 'delicate and
vulnerable, as well as supremely precious in our society.'" Id. at 347-48
(Brennan, J., dissenting), quoting from NAACP v. Button, 371 U.S. 415, 433
(1963).
78. It was relied on by Justices Harlan and Clark, who separately concurred in Green. 369 U.S. at 693 (opinion of Harlan, J.).
79. 388 U.S. at 318-19.
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mitment to their cause. But respect for judicial process is a small
price to pay for the civilizing hand of law, which alone can give
abiding meaning to constitutional freedom."80
The sentiments expressed in Walker prevailed again in the October
1967 term in Cameron v. Johnson8 ' wherein the Court refused to
declare Mississippi's anti-picketing statute void on its face and denied
an injunction restraining its enforcement against the petitioners.
Since the statute is aimed only at picketing "in such a manner as to
obstruct or unreasonably interfere with free ingress or egress to and
from any public premises, State property, county or municipal courthouses, city halls, office buildings, jails, or other public buildings or
property owned by the State of Mississippi,"8 2 it is difficult to dispute the Court's conclusion that the statute is not void on its face.83
Nevertheless, a strong argument was made in support of the injunction sought by petitioners.
Three years earlier, in Dombrowski v. Pfister,8 4 the Court intimated
that an injunction against a state prosecution would be granted
where the state in bad faith had applied its statute for the purpose of
discouraging constitutionally protected activities. The Dombrowski
rationale was that the mere threat of prosecution alone is sufficient
to have a "chilling effect upon the exercise of First Amendment
rights,"8 5 notwithstanding the ultimate acquittal of those being prosecuted. The Cameron petitioners argued that Dombrowski should
apply since there was virtually no evidence that they had actually
obstructed the courthouse.8 6 The Court, however, did not find this
argument persuasive:
[We are not] persuaded by the argument that, because the evidence
adduced at the hearing of the pickets' conduct throughout the period
would not be sufficient, in the view of appellants, to sustain convictions on a criminal trial, it was demonstrated that the State had no
expectation of securing valid convictions. Dombrowski v. Pfister ....
This argument mistakenly supposes that "special circumstances" justifying injunctive8 7relief appear if it is not shown that the statute was
in fact violated.
This conclusion provoked the following retort from Mr. Justice Fortas
in dissent:
I agree that, in an injunctive proceeding like the present action, the
State does not have to prove the violation of law beyond a reasonable
doubt and establish that it is not constitutionally protected. But, if
Dombrowski means anything, the State must certainly show more than
there is in this record.88
80. Id. at 321.
81. 390 U.S. 611 (1968).
82. Id. at 612 n.1, quoting from Miss. CODE ANN. § 2318.5 (Supp. 1966).
83. This is much different than Adderley v. Florida, in which the statute
was not limited to picketing which unreasonably interfered with free ingress
or egress to or from public buildings. Compare note 57 supra and accompanying text.
84. 380 U.S. 479 (1965).
85. Id. at 487.
86. 390 U.S. at 624 (Fortas, J., dissenting).
87. Id. at 621.
88. Id. at 627.
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By so limiting Dombrowski, the Court emphasized that only the
most extraordinary circumstances will cause it to allow a first amendment claim to disturb a criminal proceeding. Walker and Cameron,
taken together, demonstrate that the Supreme Court is extremely
reluctant to interfere with a state's administrative and judicial machinery except in the rarest of circumstances.8 9
Privilege Against Self Incrimination and Right to Counsel
Before Trial
Probably no line of decisions has triggered as much congressional action as that culminating in Miranda v. Arizona90 and United States
v. Wade, 91 which invalidated, respectively, a confession and a lineup
identification, each obtained in the absence of counsel. Indeed,
Congress purported to overrule both of these decisions by the Crime
Control Act of 1968.92 In regard to Miranda, the Act provides that
"[i] n any criminal prosecution brought by the United States or by the
District of Columbia, a confession ... shall be admissible in evidence
if it is voluntarily given." 93 It then defines "voluntary" in much the
same manner as the Court had defined it prior to Miranda.94 However, because of the inherently coercive nature of a police interrogation, any confession obtained in the absence of counsel usually is
involuntary. Professor Sutherland's analogy demonstrates this:
Suppose a well-to-do testatrix says she intends to will her property to
Elizabeth. John and James want her to bequeath it to them instead. They capture the testatrix, put her in a carefully designed room,
89. One further case worth noting in this section is City of Greenwood v.
Peacock, 384 U.S. 808 (1966), in which the Court held that allegations that the
defendants could not receive a fair trial of their first amendment claims in
a state court because they were Negroes did not justify removing the case
to a federal court. Cf. W.E.B. DuBois Clubs of America v. Clark, 389 U.S. 309
(1967).
90. 384 U.S. 436 (1966).
91. 388 U.S. 218 (1967).
92. Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 3501-02
(Supp. 1969).
93. Id. § 3501(a).
94. The trial judge in determining the issue of voluntariness shall take into
consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment
of the defendant making the confession, if it was made after arrest and
before arraignment, (2) whether such defendant knew the nature of the
offense with which he was charged or of which he was suspected at the
time of making the confession, (3) whether or not such defendant was
advised or knew that he was not required to make any statement and that
any such statement could be used against him, (4) whether or not such
defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without
the assistance of counsel when questioned and when giving such confession.
Id. § 3501(6).
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out of touch with everyone but themselves and their convenient "witnesses," keep her secluded there for hours while they make insistent
demands, weary her with contradictions of her assertions that she
wants to leave her money to Elizabeth, and finally induce her to
execute the will in their favor. Assume that John and James are
deeply and correctly convinced that Elizabeth is unworthy and will
make base use of the property if she gets her hands on it, whereas John
and James have the noblest and most righteous intentions. Would
any judge of probate accept the will so procured as the "voluntary"
act of the testatrix?95
Therefore, Miranda did nothing more than bring a long overdue,
meaningful definition to the fifth amendment.
Several other decisions, however, have resolved some very difficult
fifth amendment questions in favor of the government. For example,
96
Schmerber v. California,
decided just one week after Miranda,
held that the fifth amendment does not preclude proving intoxication
by means of a test performed upon the blood of one who objects to its
being taken from him. The rationale was that generally the fifth
amendment is limited to compelled "testimonial or communicative"
evidence as opposed to compelled "real or physical" evidence. Since
the blood was being introduced for what it was, rather than what it
said, it was not "testimonial" and hence was not subject to the fifth
amendment.
This reasoning was certainly not compelled. In the first place,
nothing in the text of the fifth amendment suggests this dichotomy.
Furthermore, the distinction between "real" and "testimonial" evidence is not always clear. 97 Moreover, in a sense the blood test can
be characterized as "testimonial. ' 9g Finally,
[a] close and literal construction [of constitutional provisions for the
security of persons and property] deprives them of half their efficacy,
and leads to gradual depreciation of the right, as if it consisted more in
sound than in substance. It is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon 99
Although this analysis does not necessarily establish that Schmerber
was an improper choice between competing values, it clearly indicates
that it was not the work of a Court dedicated to releasing criminals
on technicalities at the expense of the public.
A year later, Schmerber was extended in United States v. Wade'00
and Gilbert v. California.01
These cases, of course, are best known
for their holding that lineup identifications obtained in the absence of
counsel may not be admitted in evidence at trial, since it was this
aspect which Congress attempted to overrule in the Crime Control
95. Sutherland, Crime and Confession, 79 HARV. L. REv. 21, 37 (1965)
(quoted in Miranda v. Arizona, 384 U.S. at 457-58 n.26).
96. 384 U.S. 757 (1966).
97. The Court conceded as much in regard to lie detector tests. Id. at 764.
98. Id. at 774 (Black, J., dissenting).
99. Id. at 776-77, quoting from Boyd v. United States, 116 U.S. 616, 635
(1886).
100. 388 U.S. 218 (1967).
101. 388 U.S. 263 (1967).
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Act.10 2 However, a closer examination of Wade and Gilbert reveals
that the requirement of counsel at lineups was but a crumb of bread
thrown at the feet of libertarians in comparison to the rather large
loaf given to the police.
First, the Court did permit the lineup notwithstanding defendants'
claims that the procedure violated the fifth amendment. In addition, it permitted the use of fingerprinting, photographs, and measurements over the claim that these too were precluded by the
fifth amendment. In light of Schmerber, these rulings could scarcely
be called startling. However, the Court did not stop here. It also
went beyond Schmerber and held that both Wade and Gilbert could
be compelled to speak at the lineup and that Gilbert could be
compelled to give handwriting exemplars.
The distinction between taking blood or fingerprints or requiring
one's presence in a lineup on the one hand, and requiring him to
speak or write on the other, is the difference between requiring
"passive, mute assistance" and "affirmative, volitional action.' 0 3 To
illustrate, the police can take blood from an individual who totally
refuses to cooperate, but they cannot obtain words or a handwriting
sample from him unless he is willing or forced to cooperate. This
added compulsion to cooperate could serve to distinguish Wade from
Schmerber. But to Mr. Justice Brennan, speaking for the Court, this
was a distinction without a difference, 0 4 whereas Mr. Justice Fortas
argued' 5 (and Justice Brennan did not deny) 10° that this could not
have been compelled at trial. Therefore, concluded Justice Fortas,
"[i]t cannot be compelled in a lineup.' 0 7 Interestingly enough,
neither Justice cited any Supreme Court case to buttress his argument. 08 Presumably this was because there are no cases directly
addressing themselves to the question. Nevertheless, it is submitted
that unless the dichotomy suggested by Mr. Justice Fortas is correct, Boyd v. United States'0 (a decision which the Court concedes
102. "The testimony of a witness that he saw the accused commit or participate in the commission of the crime for which the accused is being tried
shall be admissible in evidence in a criminal prosecution in any trial court
ordained and established under article III of the Constitution of the United
States." Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. § 3502
(Supp. 1969). Arguably this statute is not inconsistent with Wade since it
merely states a general proposition to which Wade could be an exception.
However the legislative history clearly indicates that its purpose is to overrule Wade.
103. These were the terms employed by Mr. Justice Fortas, 388 U.S. at 260
(Fortas, J., dissenting).
104. 388 U.S. at 222-23.
105. Id. at 260 (Fortas, J., dissenting).
106. Id. at 223 (opinion of Brennan, J.).
107. Id. at 260.
108. Justice Brennan cited Holt v. United States, 218 U.S. 245 (1910), as
well as Schmerber v. California, 384 U.S. 757 (1966). However, both cases
involved passive assistance.
109. 116 U.S. 616 (1886).
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to be good law today)110 is inconsistent with several decisions which
have followed it.
Boyd held that both the fourth and fifth amendments were violated
by a statute which required a defendant to either produce his private
books, invoices, and papers or be treated as having confessed to the
truth of the government allegations. Although it is possible to read
Boyd as prohibiting the introduction of private books and papers
against a defendant in any criminal proceeding, the law has not
developed along those lines. For example, in Marron v. United
States"' the Court held that a private ledger which was seized incidental to a valid arrest could be introduced against the petitioner.
Thus, in both Boyd and Marron the Government sought to use the
private records of the defendants to convict them. Why then did the
cases reach disparate results? Simply because in Marron the police
in the proper discharge of their duties obtained the records themselves, whereas in Boyd the defendant was required to produce his
own records or confess to the charge against him. Can there be any
doubt that had there been a statute requiring Marron to turn his
ledger over to the police or be treated as having confessed his crime
(or alternatively held in contempt) it would have been held unconstitutional? The distinction which Justice Fortas sought to draw and
which Justice Brennan impliedly rejected in Wade and Gilbert is
analagous.
The pro-police nature of Wade and Gilbert did not end here, however. The Court also held that counsel was not required for fingerprinting, blood samples, or even handwriting exemplars. Moreover,
the lack of counsel during the lineup (the condemning of which was
the one aspect of Wade that could be called libertarian) was not even
deemed sufficient grounds for a new trial. Rather, the Court remanded to give the Government the opportunity to establish by "clear
and convincing evidence [presumably a less stringent standard than
"beyond a reasonable doubt"] that the in-court identifications were
based upon observations of the suspect other than the lineup iden2
tifications.""
Thus, Wade, Gilbert and Schmerber have legitimated tactics which
are of real benefit to the police notwithstanding some very substantial libertarian objections, while Miranda did nothing more than
adopt a realistic definition of "voluntary."
Before concluding discussion of the scope of fifth and sixth amendment rights prior to trial, it is appropriate to consider Hoffa v.
United States and its companion cases." 3 The conviction of "Jimmy"
Hoffa for attempted bribery of a jury was based in part on the testimony of one Edward Partin, who was assumed to be a government
informer being compensated for his services. Hoffa argued that his
110.
111.
112.
113.
See, e.g., Schmerber v. California, 384 U.S. 757, 763-64 (1966).
275 U.S. 192 (1927).
388 U.S. at 240.
Hoffa v. United States, 385 U.S. 293 (1966); Lewis v. United States,
385 U.S. 206 (1966); Osborn v. United States, 385 U.S. 323 (1966).
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conversations with Partin should not have been admissible on the
ground that their introduction violated, inter alia, the fifth and sixth
amendments. The Court, however, dismissed Hoffa's fifth amendment
argument on the ground that Hoffa was not compelled to say anything. Its literal reading of the word "compulsory" thus precluded
the Court from applying the fifth amendment to confessions obtained
by trickery rather than compulsion. 114 Hoffa's sixth amendment
argument was rejected on the ground that since he had not been
formally arrested or indicated for bribery, it was permissible to
attempt to elicit incriminating statements from him in the absence of
counsel." 5 Thus, the Court narrowly limited Massiah v. United
States" 6 and Escobedo v.Illinois" 7 by holding that the police may
deliberately attempt to elicit incriminating statements from a suspect if there has been neither a formal indictment nor arrest, notwithstanding the fact that the incriminating process has "focus[ed]
*
.
8
. on the accused and its purpose is to elicit a confession.""
The two companion cases to Hoffa, Lewis v. United States"9 and
Osborn v. United States, 20 did not directly raise fifth amendment
questions.' 2 ' Nevertheless, they are relevant to this section because
they sanction deceptive police practices in obtaining incriminating
statements. Lewis upheld a narcotics conviction obtained by a federal
narcotics officer who, by use of a false name, had gained access to
petitioner's home for the purpose of purchasing marijuana, and Osborn upheld the use of an informer's tape recording of a bribery
attempt.
It is, therefore, apparent that in spite of so-called "ultra-liberal"
Supreme Court decisions under the fifth and sixth amendments, the
police have not been totally handcuffed in their efforts to obtain
incriminating evidence from the mouth (or for that matter, the veins)
of potential criminal defendants.
UnreasonableSearches and Seizures
If any line of decisions upset policemen as much as that culminating
114. This should be contrasted to Spano v. New York, 360 U.S. 315, 323
(1959), wherein the Court, quoting from John Gay, noted: "An open foe may
prove a curse, But a pretended friend is worse ... ." Concededly, there was
an element of compulsion in Spano which was not present in Hoffa.
115. Hoffa had two sixth amendment arguments. The other one dealt
with the right to consult with one's counsel in privacy during a trial and is
not relevant to this analysis.
116. 377 U.S. 201 (1964).
117. 378 U.S. 478 (1964).
118. Id. at 492.
119. 385 U.S. 206 (1966).
120. 385 U.S. 323 (1966).
121. Both petitioners relied on the fourth amendment and entrapment.
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in Miranda and Wade, it was the line beginning with Mapp v. Ohio,'1 2 2
which held that evidence obtained in contravention of the fourth
amendment cannot be introduced at the trial of the victim of the unlawful seizure. This would hardly have been surprising were it
not for Wolf v. Colorado,123 which 12 years earlier had held that
evidence seized unconstitutionally was nevertheless admissible.
The Wolf rationale was basically that an "exclusionary doctrine
[that] '[ti he criminal is to go free because the constable has blundered'"124 would allow mere technicalities to stand in the way of
convictions. This argument is particularly appealing to police, who
often believe that their blunders are mere technicalities. But with
all due respect to those who support this argument, it frequently is
inaccurate. When the police make an exploratory search without
probable cause, it is indeed true that under the exclusionary rule
any evidence they may find will be excluded and that the criminal
will go free if there is no other evidence. However, the facts can
be viewed in another way: If the police had not "blundered" by
committing the unreasonable search, the criminal never would have
been brought to trial in the first place since there would have been
no evidence to justify it. Therefore, in these instances the criminal
does not go free because the constable had blundered, but because he
would have gone free if the constable had not blundered.
Nevertheless, it must be conceded that there are some instances
in which a police officer does have probable cause for a search
warrant but, because of his failure to obtain the warrant, the state
may not use the evidence obtained.125 In these instances, perhaps in
a sense the criminal does go free because of the constable's blunder.
However, this is just another way of saying that a man cannot be
convicted unless the government has obtained the evidence used to
convict him in accordance with the Constitution. It is submitted
that the Court should not be criticized for embracing such a proposition.
Nevertheless, during the past three terms the Court has done much
to ameliorate the burden placed upon the police by Mapp. In Warden v. Hayden,126 for example, the Court substantially facilitated
police work by refusing to follow the "mere evidence" rule which had
been "the law of the land" since 1921.127 This rule provided that any
piece of evidence which could not be categorized as contraband, a
fruit of a crime or an instrumentality of a crime, was "mere evidence"
and could not be seized by police because the government could
seize property only when it had a claim to the property superior to
122. 367 U.S. 643 (1961).
123. 338 U.S. 25 (1949).
124. 367 U.S. at 659, quoting from People v. Defore, 242 N.Y. 13, 21, 150
N.E. 585, 587 (1926).
125. E.g., Katz v. United States, 389 U.S. 347 (1967).
126. 387 U.S. 294 (1967). The ensuing discussion of Hayden relies heavily
on a seminar paper submitted to this commentator by John Jewett, a
recent graduate of the University of Connecticut School of Law.
127. Gouled v. United States, 255 U.S. 298 (1921).
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that of the citizen from whom it was sought to be seized. Thus,
contraband could be seized since, by definition, a citizen may not
legally possess it. Fruits of a crime (such as stolen goods) were
likewise illegitimately possessed by the person who stole them. The
seizing of instrumentalities of crime was justified by "the early notion
that items used in crime were forfeited to the State."'128 However,
when the state sought to seize "mere evidence" (such as the
trousers and jacket allegedly worn by Hayden during the robbery),
it could allege no superior proprietary interest and therefore could
129
not seize it.
In overruling the "mere evidence" rule, the Court emphasized that
the interest of the government in seizing evidence in order to solve
crimes is more important than any proprietary interest it may have.
The premise in Gouled [the case announcing the "mere evidence"
rule] that government may not seize evidence simply for the purpose
of proving crime has likewise been discredited. The requirement that
the Government assert in addition some property interest in material
it seizes has long been a fiction, obscuring the reality that government
has an interest in solving crime.'30
Although the government's interest in solving crime is indeed real,
it was necessary for the Court to reject an impressive array of history
in order to conclude that it outweighed the defendant's interest in
being free from the seizure of merely evidential property.
Hayden argued that if the "mere evidence" rule were overruled,
Harris v. United States' 3' (which had held that an exhaustive five
hour search of a four room apartment following a lawful arrest was
constitutional) also should be overruled. 32 This argument is not
without force, for whatever may be said against such an extensive
search is somewhat ameliorated when the police are only permitted
to seize contraband, fruits of crime and instrumentalities of crime.
Indeed, the Harris Court specifically emphasized the importance of
this limitation: "The search was not a general exploration but was
specifically directed to the means and instrumentalities by which the
,,133 But when not so limited
crimes charged had been committed ....
by the "mere evidence" rule, the Harrisrule maximizes the invasion
of privacy by effectively reintroducing the general warrant. 34 Thus,
128. Hayden, 387 U.S. at 303, quoting from Kaplan, Search and Seizure:
A No-Man's Land in Criminal Law, 49 CALIF. L. REv. 474, 475 (1961).
129. Arguably the clothing could be categorized as an instrumentality of
the crime. Such a broad definition of instrumentalities, however, would practically destroy the dichotomy between instrumentalities and mere evidence.
But cf. Marron v. United States, 275 U.S. 192 (1927).
130. 387 U.S. at 306 (emphasis added).
131. 331 U.S. 145 (1947).
132. Brief for Respondent at 22.
133. 331 U.S. at 153. Compare this discription with the police officer's
account of the Hayden search, note 141 infra.
134. For a brief account of the history of the general warrant, see Hayden,
387 U.S. at 314 (Douglas, J., dissenting).
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it makes sense to say that the fourth amendment's quid pro quo for
the demise of the "mere evidence" rule should have been the contemporaneous demise of the Harrisrule.
Not only did the Court refrain from overruling Harris, 135* but it
engrafted another exception upon the rule that all searches must be
conducted pursuant to a warrant. Traditionally, there have been only
two such exceptions. The first is that a search may be made without
a warrant if it is likely that the evidence will be removed from the
jurisdiction or destroyed before a warrant can be obtained. 136 The
second exception is for a search incidental to a lawful arrest, since the
arrestee may have a weapon in his possession or evidence under his
control. 137 The additional exception developed by Hayden was categorized by Mr. Justice Fortas' concurring opinion as "[s] earches
in the course of 'hot pursuit.'
"'138
To understand this exception, it is necessary briefly to review the
facts. The search was conducted by police in the Hayden home
shortly after a witness reported seeing it entered by a man who had
just robbed a cab company. While the police were arresting Hayden
on the second floor, another policeman, who was searching the basement, found a jacket and trousers in a washing machine which
matched the description of those worn by the robber. Since the
Court found that the seizure of the clothing occurred prior to or
contemporaneously with Hayden's arrest, the search and seizure could
not be justified as an incident of the arrest. Nevertheless, the Court
sustained the search on the theory that the police, having just received information that an armed robber had entered a particular
house, were justified in searching that house for the robber "and
for weapons which he had used in the robbery or might use against
them."'139 Thus, the doctrine of "hot pursuit" was born.
In announcing this doctrine (which was not argued by either counsel nor relied upon by the lower court),140 the Court did not delineate
its scope or limitations except to announce that it (the Court) was not
presently deciding whether such a search was limited to a suspect or
his weapons. Rather, the Court assumed that the police officer was
135. In fairness to the Court, it should be noted that it specifically dis-
claimed reliance upon Harris. 387 U.S. at 299. Nevertheless, it did nothing
to cast doubt upon Harris' continuing vitality.
* Subsequent to the writing of this article, Harriswas overruled. Chimel
v. California, 37 U.S.L.W. 4613 (U.S. June 24, 1969).
136. The most common illustration of this is a moving vehicle which
could be out of the jurisdiction before a warrant is obtained. Carroll v.
United States, 267 U.S. 132 (1925). To appreciate the limited nature of this
exception, see Johnson v. United States, 333 U.S. 10, 14-15 (1948).
137. See Harris v. United States, 331 U.S. 145, 151 (1947). There is a
third exception which was devised three months earlier in Cooper v. California, 386 U.S. 58 (1967). See notes 143-46 infra and accompanying text.
138. 387 U.S. at 310.
139. Id. at 298.
140. The circuit court did mention "hot pursuit," but only for the purpose
of justifying the arrest. It would have justified the search (but for the
"mere evidence" problem) as incidental to a valid arrest. Hayden v. Warden, 363 F.2d 647, 651 (4th Cir. 1966), rev'd, 387 U.S. 294 (1967).
Petitioner
(Warden) also argued that the search was a justifiable incident of a lawful
arrest. Brief for Petitioner at 12.
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searching for weapons when he looked into the washing machine,
thereby rendering it unnecessary to decide whether a more extensive
search would have been justified. 141 Thus, the net result of Hayden
is that: (1) the "mere evidence" rule is overruled, (2) the Harris
case, which predicated an expansive search incident to an arrest on
existence of the "mere evidence" rule, can still be invoked by police,
limitations can
and (3) a prior-to-arrest search of as yet uncertain
42
be invoked under the new "hot pursuit" doctrine.
In Cooper v. California4 3 the Court engrafted another exception
upon the rule that all searches are to be conducted pursuant to a
warrant. Cooper was arrested for a narcotics violation. His automobile, which he was allegedly using to transport narcotics, was impounded pursuant to state statute to be held as evidence pending a
forfeiture proceeding. 44 A week later, while the car was still impounded, but before any forfeiture proceeding was brought, the police searched the car and found some incriminating evidence. Of
course, the search could not be justified as an incident of lawful
arrest since it occurred a week later. The state, therefore, sought to
uphold the seizure on the ground that it had superior title to the
automobile since it was seized as evidence, and a later foreclosure
hearing had the effect of relating the state's title back to the date of
the original seizure. Although the California court rejected this
argument on the ground that the state merely had custodial rights
to the car pending an ultimate determination of the forfeiture proceedings, 45 the Supreme Court accepted it, reasoning that the fourth
141. In fact, one of the officers testified that they were searching for
whatever they could find:
Q: Were you looking for money?
A: Whatever we could find.
Q: That is right. Did you look in his pants?
A: We looked everywhere.
Q: How many officers came in the house .... ?
A: Maybe five or six.
Q: Yes. And they searched the house from top to bottom, didn't they?
A: Which is customary when you receive a call like that.
Brief for Respondent at 13-14.
142. In Gilbert v. California, 388 U.S. 263, 269 (1967) the Court, rather than
consider the scope of the "hot pursuit" exception, chose to vacate certiorari
on that issue as improvidently granted.
143. 386 U.S. 58 (1967).
144. Cal. Health &Safety Code § 11610 provides:
"The interest of any registered owner of a vehicle used to unlawfully
transport or facilitate the unlawful transportation of any narcotic, or in
which any narcotic is unlawfully kept, deposited or concealed or which
is used to facilitate the unlawful keeping, depositing or concealment of
any narcotic, or in which any narcotic, is unlawfully possessed by an
occupant thereof or which is used to facilitate the unlawful possession of
any narcotic by any occupant thereof, shall be forfeited to the State."
Id. at 60 n.1.
145. People v. Cooper, 234 Cal. App. 2d 587, 44 Cal. Rptr. 483 (Dist. Ct. App.
1965). Nevertheless, the California court affirmed the conviction on the
ground that the error was harmless.
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amendment did not preclude the search and seizure even though there
was no state authorization for it. Thus, in additon to the other
exceptions allowing warrantless searches, property may now be
searched without a warrant when the police are lawfully in custody
146
of the property for potential use as evidence.
Despite Hayden and Cooper, a search incident to a valid arrest is
likely to remain the most significant exception to the rule against
searches without warrants. Accordingly, the criteria employed to
ascertain the validity of an arrest are of great concern to both police
and libertarians. It is difficult to imagine a case in which the conflict between these groups was more pronounced than in McCray v.
Illinois,147 where once again the Court found itself on the side of the
police. The issue was whether probable cause could be established
solely by police testimony that an anonymous informer whom the
police claimed had been reliable on several other occasions had seen
petitioner selling narcotics to several people. McCray argued that if
the police were not required to reveal the name of the informer,
there was no way effectively to cross-examine the police to ascertain the credibility of their story. Thus, it would be possible for them
to claim that a reliable informer had seen petitioner selling narcotics
when in fact no such informer existed.
The Court's response was that "[n] othing in the Due Process Clause
of the Fourtheenth Amendment requires a state court judge in every
such hearing to assume the arresting officers are committing perjury.' 148 This is very cleverly put but it either inadvertently or
intentionally misstates petitioner's argument. The fact that a court
need not assume perjury does not justify its adopting a rule which
encourages it. The sixth amendment guarantees a defendant the
right "to be confronted with the witnesses against him" not because it
assumes perjury will inevitably occur without confrontation, but because confrontation is a process which will minimize it. Since "[i]t
is not unknown for the arresting officer to misrepresent his connection with the informer, his knowledge of the informer's reliabil1 49
it
ity, or the information allegedly obtained from the informer,"'
makes sense to adopt a process calculated to encourage rather than
discourage veracity. 15 0 McCray was not asking the trial court to
assume perjury, but merely for the opportunity to prove perjury.
Without this right, the only check on the fourth amendment is the
individual policeman's decision to tell the truth, unless he is such a
poor witness that the trial judge is indeed willing to assume perjury.
Needless to say, this is a rather modest role for the "independent
146. When Cooper was decided, the exception was not in addition to the
Hayden "hot pursuit" exception. Hayden was not decided until three
months later.
147. 386 U.S. 300 (1967).
148. Id. at 313.
149. Id. at 316 n.2 (Douglas, J., dissenting); see United States v.Pearce,
275 F.2d 318, 322 (7th Cir. 1960).
150. "When we risk no contradiction, itprompts the tongue to deal in
fiction." Brief for Petitioner at 35, quoting from John Gay.
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magistrate," who is generally thought to be indispensable in safeguarding fourth amendment rights.)51
Why did the Court adopt a rule with such a potential for diluting
the content of probable cause? The reason appears to be that a
contrary rule though vital to the protection of fourth amendment
rights, would likely shorten the life expectancy of those in the informing business. This in turn would probably eliminate informers
entirely since the rewards would not be worth the risk. As a result,
the capture of certain types of criminals would be made more difficult. Thus, McCray can best be analyzed as one of a series of cases in
which the Court balanced the purpose of the fourth amendment
against the needs of law enforcement officers and found the latter
more important.
The apex of this series is Terry v. Ohio, 52 in which the Court held
that where a police officer observes unusual conduct which leads him
reasonably to conclude in light of his experience that criminal activity
may be afoot and that the persons with whom he is dealing may be
armed and presently dangerous; where in the course of investigating
this behavior he identifies himself as a policeman and makes reasonable inquiries; and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others' safety, he is
entitled for the protection of himself and others in the area to conduct
a carefully limited search of the outer clothing of such persons in an
attempt to discover weapons which might be used to assault him.153
Stated more colloquially, Terry empowered the police to "stop and
frisk" suspicious persons who may be carrying weapons even where
there is no probable cause for arrest.
The Court's analysis began in a libertarian enough manner:
It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that
person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a
person's clothing all over his or her body in an attempt to find weapons
is not a "search." Moreover, it is simply fantastic to urge that such a
procedure performed in public by a policeman while the citizen stands
helpless, perhaps facing a wall with his hands raised, is a "petty indignity."1 54
But after properly recognizing that a "stop and frisk" is a search
and seizure, the Court stated:
If this case involved police conduct subject to the Warrant Clause of
the Fourth Amendment, we would have to ascertain whether "probable cause" existed to justify the search and seizure which took place.
However, that is not the case . . . . [W] e here deal with an entire
151.
152.
153.
154.
See Johnson v. United States, 333 U.S. 10 (1948).
392 U.S. 1 (1968).
Id. at 30.
Id. at 16-17.
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rubric of police conduct-necessarily swift action predicated upon the
on-the-spot observations of the officer on the beat-which historically
has not been, and as a practical matter could not be, subjected to the
warrant procedure. Instead, the conduct involved in this case must
be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.' 5 5
This explains why the exigencies surrounding a "stop and frisk"
cannot be made subject to the warrant procedure. It does not explain,
however, why this type of police conduct cannot be subjected to the
probable cause requirement. Arrests without a warrant have been
sustained when time has not permitted the obtaining of one, but they
nevertheless have been held to the standard of probable cause. 5 6
The real reason for not holding the police to a standard of probable
cause is explained later in the opinion:
American criminals have a long tradition of armed violence, and every
year in this country many law enforcement officers are killed in the
line of duty, and thousands more are wounded. Virtually all of these
deaths and a substantial portion of the injuries are inflicted with guns
and knives. In view of these facts, we cannot blind ourselves to the
need for law enforcement officers to protect themselves and other
prospective victims of violence in situations where they may lack
probable cause for an arrest.157
The revolutionary upshot of this holding was described by Mr.
Justice Douglas in dissent as follows:
Had a warrant been sought, a magistrate would, therefore, have been
unauthorized to issue one, for he can act only if there is a showing of
"probable cause." We hold today that the police have greater authority to make a "seizure" and conduct a "search" than a judge has
to authorize such action. We have said precisely the opposite over
and over again.158
It would seem that such a novel holding can be explained only by
a concern in the Court for providing the police with as much leeway
as possible in their fight against crime. Indeed, when one reads
Hayden, Cooper, McCray and Terry, he cannot help but conclude that
he is reading the decisions of a Court which, in the area of search
and seizure, as well as in the other areas already discussed, is determined to avoid releasing criminals on technicalities.
Cruel and Unusual Punishment
Powell v. Texas' 59 invited the Supreme Court to hold that a chronic
alcoholic cannot be convicted of public drunkenness. Prior decisions
(both of the Supreme Court and of federal circuit courts) seemed to
suggest that the Court would accept this invitation; somewhat surprisingly, it did not.
In 1962 the Court held in Robinson v. California'6 9 that the eighth
155.
156.
157.
158.
159.
160.
1242
Id. at 20.
E.g., McCray v. Illinois, 386 U.S. 300 (1967).
392 U.S. at 23-24.
Id. at 36.
392 U.S. 514 (1968).
370 U.S. 660 (1962).
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amendment precludes punishing a man for the crime of being a drug
addict. This holding could be rationalized, of course, on the theory
that it was not proven that Robinson used narcotics in California or
committed any other anti-social act there. As Mr. Justice Harlan said,
"the effect ... was to authorize criminal punishment for a bare
desire to commit a criminal act."''1 1 Nevertheless, there were indications in Robinson that the Court was prepared to forbid a state to
punish addicts for use of narcotics. The Court had said: "A State
might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders."' 1 2 This failure to mention "use" did not
go unnoticed by Mr. Justice White in dissent: "It is significant that
in purporting to reaffirm the power of the State to deal with the
narcotics traffic, the Court does not include among the obvious
powers of the State the power to punish for the use of narcotics. I
cannot think that the omission was inadvertent."'163 The same Justice
also observed that "[i]f it is 'cruel and unusual punishment' to convict appellant for addiction, it is difficult to understand why it would
be any less offensive to the Fourteenth Amendment to convict him
64
for use on the same evidence of use which proved he was an addict."'
Unquestionably, Robinson applies to alcoholism as well as drug
addiction. Therefore, if Justice White's observation is accurate, the
punishment of chronic alcoholics for public drunkenness should be
forbidden.165 The Fourth Circuit so held in Driver v. Hinnant,
stating that "Robinson . . .sustains, if not commands, the view we
take,"'166 and this reading of Robinson was also endorsed by the
Circuit Court of Appeals for the District of Columbia.167 Powell v.
Texas thus set the stage for the Supreme Court to give the final
coup de grace to the practice of branding chronic alcoholics as criminals for public drunkenness, but the coup de grace never materialized.
The trial court found the following facts in Powell:
(1) That chronic alcoholism is a disease which destroys the afflicted
person's will power to resist the constant, excessive consumption of
alcohol.
(2) That a chronic alcoholic does not appear in public on his own
volition but under a compulsion symptomatic of the disease of
161. Id. at 679 (Harlan, J., concurring).
162. Id. at 664.
163. Id. at 688.
164. Id. Justice White was unpersuaded by Justice Harlan's argument
that Robinson could have been convicted even if he never used narcotics in
California. Id. at 686 n.3.
165. Justice White would limit the immunity from a public drunkenness
conviction to those alcoholics who cannot avoid being in public while drunk.
See text accompanying note 173 infra.
166. 356 F.2d 761, 764 (4th Cir. 1966).
167. Easter v. District of Columbia, 361 F.2d 50 (D.C. Cir. 1966); Sweeney v.
United States, 353 F.2d 10 (7th Cir. 1965).
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chronic alcoholism.
(3) That Leroy Powell, a defendant herein, is a chronic alcoholic
168
who is afflicted with the disease of chronic alcoholism.
Therefore, it appeared that the only question before the Court was
whether a man who is drunk in public by virtue of an irresistible
compulsion engendered by the disease of chronic alcoholism can be
convicted of public drunkenness. However, Mr. Justice Marshall
(announcing the judgment of the Court in an opinion concurred in
by the Chief Justice and Justices Black and Harlan) questioned these
findings. First, he questioned the validity of categorizing chronic
alcoholism as a disease for purposes of the eighth amendment. 169
Second, he questioned the alleged complete inability of an alcholic
to abstain from drinking. 7 0 Finally, he questioned whether Powell
was in fact an alcoholic in any meaningful legal sense of the term. 7
Although Mr. Justice Marshall thus could have rested his opinion
on Powell's inability to establish his defense, he did not stop there.
Rather, he emphasized the great problems the states would face if
they could not convict chronic alcoholics of drunkenness:
There is as yet no known generally effective method for treating the
vast number of alcoholics in our society....
... [F]acilities for the attempted treatment of indigent alcoholics
are woefully lacking throughout the country. It would be tragic to
return large numbers of helpless, sometimes dangerous and frequently
unsanitary inebriates to the streets of our cities without even the
opportunity to sober up adequately which a brief jail term provides....
.
The picture of the penniless drunk propelled aimlessly and endlessly through the law's "revolving door" of arrest, incarceration, release and re-arrest is not a pretty one. But before we condemn the
present practice across-the-board, perhaps we ought to be able to point
to some clear promise of a better world for these unfortunate people. 172
168. 392 U.S. at 521.
169. Furthermore, the inescapable fact is that there is no agreement
among members of the medical profession about what it means to say
that "alcoholism" is a "disease." One of the principal works in this field
states that the major difficulty in articulating a "disease concept of
alcoholism" is that "alcoholism has too many definitions and disease
has practically none." This same author concludes that "a disease is
what the medical profession recognizes as such." In other words, there
is wide spread agreement today that "alcoholism" is a "disease," for the
simple reason that the medical profession has concluded that it should
attempt to treat those who have drinking problems. There the agreement stops. Debate rages within the medical profession as to whether
"alcoholism" is a separate "disease" in any meaningful biochemical,
physiological or psychological sense, or whether it represents one peculiar manifestation in some individuals of underlying psychiatric disorders.
Id. at 522.
170. "Nor is there any substantial consensus as to the 'manifestations of
alcoholism.'" Id.
171. Jellinek insists that conceptual clarity can only be achieved by distinguishing carefully between "loss of control" once an individual has
commenced to drink and "inability to abstain" from drinking in the first
place. Presumably a person would have to display both characteristics in
order to make out a constitutional defense, should one be recognized.
Yet the "findings" of the trial court utterly fail to make this crucial distinction, and there is serious question whether the record can be read
to support a finding of either loss of control or inability to abstain.
Id. at 524-25.
172. Id. at 527-30.
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It is apparent that Justice Marshall's opinion was impelled, at least
in part, by an abiding concern for the potential adverse effect
upon the welfare of the state that a contrary decision might have had.
Mr. Justice White cast the fifth vote for affirmance on the ground
that Powell failed to establish his inability to get drunk at home. If he
could get drunk at home, reasoned the Justice, he was under no compulsion to get drunk in public. Apparently Justice White would not
even allow a homeless alcoholic to successfully invoke the defense of
'173
Thus,
alcoholism unless he were "truly compelled to drink.
Powell clearly guarantees the states the right to keep the "drunk
tank" open, at least for all but the most acute alcoholics, until such
time as more effective methods to deal with the problem can be
devised.
General Due Process
In addition to its efforts to give considerable latitude to law enforcement in the specific areas already mentioned, the Court has also been
extremely reluctant to reverse criminal convictions on grounds of74
lack of fairness. This was vividly illustrated by Spencer v. Texas.
At Spencer's trial for murder with malice, the court read to the jury
the portion of the indictment which accused him of having previously
been convicted of a similar offense and allowed proof of his prior
conviction to be introduced, obtensibly for the purpose of informing
the jury of his recidivism so that he could be punished accordingly.
The jury was instructed not to consider this prior conviction in determining guilt or innocence. Spencer was convicted and sentenced to
death.
Spencer argued that reading the indictment to the jury and allowing proof of his prior convictions was both unnecessary and prejudicial inasmuch as the jury could have been informed of his prior
criminal record after it had convicted him. This is the rule in other
states and, indeed, a subsequent statutory change has made it the
rule in Texas for most cases. 75 The potential prejudice is apparent.
The limiting charge to the jury is surely not completely effective;
"As Mr. Justice Jackson put it in a famous phrase '[t]he naive
assumption that prejudicial effects can be overcome by instructions
to the jury . . . all practicing lawyers know to be an unmitigated
173. Id. at 551 n.3.
174. 385 U.S. 554 (1967).
175. Apparently the new statute only applies to non-capital cases. Id. at
556-57 n.2. Had Spencer's case arisen after the statute, he might have been
able to claim a denial of equal protection on the ground that capital defendants should not be afforded any less protection than non-capital defendants.
If anything, capital defendants should be entitled to greater protection. Cf.
Griffin v. Illinois, 351 U.S. 12, 26-28 (1956) (Burton & Minton, JJ., dissenting).
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fiction.' "176
The state's position, therefore, was reduced to nothing more than a
bare desire on its part to adopt a highly prejudicial method of informing the jury of recidivisim notwithstanding the availability of a
less prejudicial one. One would not think that this is a very substantial interest, particularly since the state had subsequently
changed its statute. Nevertheless, the Court noted that:
In the procedures before us . . . no specific federal right . . . is in-
volved; reliance is placed solely on a general "fairness" approach. In
this area the Court has always moved with caution before striking
down state procedures....
... To say that the two-stage jury trial in the English-Connecticut
style is probably the fairest, as commentators and courts have suggested, and with which we might well agree were the matter before us
in a legislative or rule-making context, is a far cry from a constitutional
determination that this method of handling the problem is compelled
by the Fourteenth Amendment.177
Mr. Justice Stewart, one of the five-man majority, was even more
explicit in his disapproval of the statute.
If the Constitution gave me a roving commission to impose upon the
criminal courts of Texas my own notions of enlightened policy, I would
not join the Court's opinion. For it is clear to me that the recidivist
procedures adopted in recent years by many other States-and by
Texas herself since January 1 of last year-are far superior to those
utilized in the cases now before us. But the question for decision is
not whether we applaud or even whether we personally approve the
procedures followed in these recidivist cases. The question is whether
those procedures fall below the minimum level the Fourteenth Amendment will tolerate. Upon that question I am constrained to join the
opinion and judgment of the Court.178
Thus, the Supreme Court demonstrated a great respect for a state's
right to formulate its own rules of criminal procedure, by finally and
authoritatively condemning to death a man who was convicted under
a procedure that had little more to be said for it than that five
Justices could not find it constitutionally intolerable. Again, this is
hardly the work of a court dedicated to releasing criminals on
technicalities.
Prospectivity
Not only has the Supreme Court denied civil libertarian claims in
cases such as those discussed on the preceding pages, but where it has
supported such claims it has frequently done so only prospectively.
Stated differently, the Court has refused to grant new trials to men
who are presently incarcerated as a result of previous trials which
were conducted in a manner now recognized as constitutionally in176. 385 U.S. at 575 (Warren,C.J., dissenting) quoting from Krulewitch v.
United States, 336 U.S. 440, 453 (1949) (concurring opinion); cf. Bruton v.
United States, 391 U.S. 123 (1968).
177. 385 U.S. at 565-68.
178. Id.at 569 (Stewart, J., concurring).
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adequate. The origin of this doctrine was Linkletter v. Walker, 179
which held that Mapp v. Ohio'80 was not applicable to cases finally
adjudicated prior to June 19, 1961, the date Mapp was decided. In
reaching this decision the Court considered three factors:
(1) the purpose of the Mapp rule;
(2) the reliance placed upon the Wolf doctrine; and
(3) the effect on the administration of justice of a retrospective application of Mapp.' 81
Four decisions since Linkletter have limited constitutional rules of
criminal procedure to prospective application:
(1) Tehan v. United States ex rel. Shott 18 2 held that Griffin v.
California,8 3 which forbade judicial or prosecutorial comment upon
a defendant's failure to testify, was inapplicable to cases finally
adjudicated prior to Griffin.
84
(2) Johnson v. New Jersey1
held that Miranda v. Arizona 8 5
8
6
and Escobedo v. Illinois' were inapplicable to trials which began
prior to these respective decisions.
(3) Stovall v. Denno8 7 held that United States v. Wade'88 and
8 9
Gilbert v. California1
were inapplicable to all cases in which the
unlawful police conduct occurred prior to these decisions.
(4) DeStefano v. Woods' 90 held that Duncan v. Louisiana'91 and
Bloom v. Illinois,192 which guaranteed the right to a jury trial in
serious criminal and contempt cases, respectively, were inapplicable
to trials which began prior to these decisions.
Several problems are apparent with this method of applying constitutional rules. At the outset, choosing a criterion for ascertaining
which litigants are entitled to the benefit of the rule is exceedingly
difficult. The four decisions cited above chose three different criteria.
Tehan chose finality, and Johnson and DeStefano chose commencement of trial, while Wade chose time of unlawful police conduct.
Since any criterion would somewhat arbitrarily deny the benefit of
the constitutional rule to a particular class of litigants, 193 it is not
179. 381 U.S. 618 (1965).
180. 367 U.S. 643 (1961).
181. 381 U.S. at 636.
182. 382 U.S. 406 (1966).
183. 380 U.S. 609 (1965).
184. 384 U.S. 719 (1966).
185. 384 U.S. 436 (1966).
186. 378 U.S. 478 (1964).
187. 388 U.S. 293 (1967).
188. 388 U.S. 218 (1967).
189. 388 U.S. 263 (1967).
190. 392 U.S. 631 (1968).
191. 391 U.S. 145 (1968).
192. 391 U.S. 194 (1968).
193. See Loewy, The Old Order Changeth-But for
L. REV. 1 (1967).
Whom?,
1 SuFFOri
U.
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19d '7
surprising that the Court has had difficulty settling upon one such
criterion.
A related but more serious defect of prospectivity is the unfairness
to the litigant against whom the discrimination is perpetrated. Consider, for example, the case of Theodore Stovall, who, like Billy Joe
Wade and Jesse James Gilbert, had been identified as the perpetrator
of a crime by a witness during a pre-trial confrontation 94 at which
he was not represented by counsel. Wade's and Gilbert's direct appeals
and Stovall's petition for habeas corpus reached the Supreme Court
on the same day. The Supreme Court reversed both Wade's and Gilbert's convictions because of the constitutional defect of requiring
confrontation without counsel. Stovall, however, who was applying
for post conviction relief, was denied it because Wade and Gilbert
were held not to be retroactive. 195 Thus, presumably Stovall was
(or will be) executed in accordance with the terms of his sentence.
One cannot help but think that perhaps he did not (or will not) go to
his death extolling the majestic equality of our laws.196
A final objection to prospectivity is that the rationale of the decision announcing prospective application of a new rule may undercut
the very basis upon which the rule was formulated. For example,
in Tehan, where the rule precluding judicial and prosecutorial comment upon a defendant's failure to testify was held to be prospective
only, the Court said that "the basic purposes that lie behind the
privilege against self-incrimination do not relate to protecting the
innocent from conviction, but rather to preserving the integrity of a
judicial system in which even the guilty are not to be convicted unless the prosecution 'shoulder [sic] the entire load.' "97
Yet, in Griffin, where the rule was announced, the Court said:
It is not every one who can safely venture on the witness stand
though entirely innocent of the charge against him. Excessive timidity,
nervousness when facing others and attempting to explain transactions
of a suspicious character, and offences charged against him, will often
confuse and embarrass him to such a degree as to increase rather than
remove prejudices against him.19s
Thus, whenever the Court makes a constitutional rule of criminal
procedure prospective, it faces a difficult job of line-drawing, it
inevitably creates inequities wherever it draws the line, and it frequently impugns the very foundation of the rule it is making pro194. Technically the procedure to which Stovall was subjected was a
show-up (witness only shown the suspect), whereas Wade and Gilbert were
part of a line-up (witness asked to identify the perpetrator from among
several suspects). Thus, there was a greater potential for prejudice to
Stovall than there was to either Wade or Gilbert.
195. Wade and Gilbert received the benefit of the new rule because the
Court chose not to apply it completely prospectively. 388 U.S. at 301.
196. See Currier, Time and Change in Judge-Made Law: Prospective Overruling, 51 VA. L. REv. 201, 201-04 (1965).
197. 382 U.S. at 415.
198. 380 U.S. at 613, quoting from Wilson v. United States, 149 U.S. 60, 66
(1893). Similarly, Johnson and Stovall tend to undercut much of the ration-
ale of Miranda and Wade respectively. See Note, The Supreme Court,
1965 Term, 80 HARv. L. REv. 125, 138-39 (1966).
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spective. Yet the Court seems firmly committed to this practice. 199
Considering the conceptual and practical difficulties, one can only
conclude that the Court's concern about the effect of retroactive
applications of its decisions on the administration of criminal justice
is so great that other considerations will frequently yield.
Conclusion
In a sense, this article has understated the role of the Supreme Court
in preserving state and federal criminal laws and procedures. In the
first place, not every case in which the Court has sustained a gov200
ernmental position against a libertarian attack has been discussed.
Moreover, no consideration whatever has been given to denials 2of
02
certiorari 201 or dismissals of certiorari as improvidently granted
in cases where the government's position has been highly dubious.
Also, decisions which adopted some but not all of the libertarian claims
urged upon the Court were not included.20 3 Finally, no mention was
made of Pierson v. Ray, 204 in which the Court, by an arguably
strained reading of the Civil Rights Act of 1871,205 held that a local
judge may not be held liable under this act even when he acts
maliciously and corruptly. The effect of this decision is to assure
every state and local judge that he can apply the law to a case as he
sees fit without the fear of a disappointed litigant bringing a suit
against him alleging malice and corruption.
Notwithstanding these arguments, the reader should be cautioned
against reading too much into this article. It is not intended to prove,
199. At least on a selective basis. Compare Roberts v. Russell, 392 U.S. 293
(1968), which held that Bruton v. United States, 391 U.S. 123 (1968) was to
be applied retroactively. Bruton held that it was constitutionally impermissible to introduce a co-defendant's pre-trial confession at the joint trial
of defendant and co-defendant even with instructions to the jury to consider
the confession as evidence against the co-defendant only. Delli Paoli v.
United States, 352 U.S. 232 (1957), was overruled.
200. E.g., Cichos v. Indiana, 385 U.S. 76 (1966). Technically, Cichos was
a dismissal of certiorari as improvidently granted. Nevertheless, in the course
of its opinion, the Court adopted a rather narrow view of the protection afforded by the fifth amendment's prohibition against double jeopardy. Compare its more libertarian pronouncement nine years earlier in Green v.
United States, 355 U.S. 184 (1957).
201. E.g., DeJoseph v. Connecticut, 385 U.S. 982 (1966).
202. E.g., Wainwright v. City of New Orleans, 392 U.S. 598 (1968).
203. E.g., Witherspoon v. Illinois, 391 U.S. 510 (1968).
204. 386 U.S. 547 (1967).
205. 42 U.S.C. § 1983 (1964).
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity, or other proper proceeding for redress.
As Mr. Justice Douglas put it: "To most, 'every person' would mean every
person, not every person except judges." 386 U.S. at 559 (dissenting opinion).
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nor does it prove, that the Supreme Court is a police court, totally
oblivious to civil liberties. This is obviously not true, since on several
occasions the Court has upheld libertarian claims.20 6 Nevertheless,
the decisions discussed herein reveal that the Supreme Court does in
fact have a deep and abiding concern for the needs of law enforcement, despite the often overly vocal opinions of those who think
otherwise.
206. E.g., notes 6-14 supra.
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