Simmons v. United States

PETITIONER:Simmons
RESPONDENT:United States
LOCATION:WAFB TV

DOCKET NO.: 55
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Seventh Circuit

CITATION: 390 US 377 (1968)
ARGUED: Jan 15, 1968
DECIDED: Mar 18, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – January 15, 1968 in Simmons v. United States

Earl Warren:

Thomas Earl Simmons et al., Petitioners, versus United States.

Mr. Smith.

Raymond J. Smith:

Mr. Chief Justice, members of the Court, may it please the Court.

This case is on a writ of certiorari from — to the United States Court of Appeals from the Seventh Circuit.

The petitioners, Garrett and Simmons and a defendant Andrews were convicted after a jury trial on the charges of bank robbery with a dangerous weapon.

All three men were sentenced to the custody of the attorney general for a period of three — of 10 years.

Now, on appeal, the United States Court of Appeals reversed the decision in Andrews on the ground of insufficiency of the evidence.

The first issue raised by the petitioner, Simmons here is that his pre-trial identifications were so unnecessarily suggestive and conducive to irreparable mistaken identity that he was deprived of due process of law.

On February 27th, 1964, two men robbed the Ben Franklin Savings and Loan Association in Chicago.

The two men were in the bank about five minutes.

This occurred about 1:45 PM.

The two men fled and took $1500 with them.

A Mr. Misaika, who was one of the bank tellers left the bank and followed the two men and saw them drive away in a white 1960 Thunderbird.

This car had a scrape, a large scrape along the door on the passenger’s side.

As soon as the police arrived, they made a general search of the area to find this car described by Mr. Misaika.

At 2:30 PM, this search led to a white Thunderbird owned by Mary Ruth Rey who was a sister of the defendant, Andrews and the sister-in-law of the petitioner, Simmons.

At 3 o’clock, six men entered the home of the mother of Andrews, searched but didn’t take anything.

At five o’clock that same day, the Federal Bureau of Investigation entered Andrews’ mother’s home looking for Andrews and Simmons.

They did not find them but they did find two suitcases.

One of which contained some bank money wrappers and other incriminating evidence.

The next day, the FBI went to the home of Simmons’ — another of Simmons’ sister-in-law and another sister of the defendant Andrews and obtained four or five pictures of Simmons and Andrews.

Now, it is clear then, that same day they took these pictures to be viewed by the members of the bank that had witnessed the robbery.

It is clear then that at the time that these pictures were shown to the witnesses, the FBI had two definite suspects in mind, Simmons and Andrews.

It is also clear that the witnesses were aware that the FBI was close to a solution of the identity of the bank robbers because Mr. Misaika had seen this white Thunderbird.

He had also seen that car later in the day in the custody of the FBI.

So he knew that the car used in the bank robbery had been taken into custody.

And he had talked over the facts and circumstances of the bank robbery with the other members of the bank, the tellers who were to be the witnesses.

A Mrs.Parlimen also said that she was aware that the 1960 white Thunderbird had been used by the bank robbers and she hadn’t talked to Mr. Misaika but had talked to some of the other bank tellers so that it was common knowledge among the tellers that the police were close to apprehending the bank robbers.

Now, under those circumstances, number one, the FBI having two definite suspects in mind and number two, the bank teller witnesses being aware that the FBI was in hot pursuit of the bank robbers, these pictures were shown the very next day after the robbery to the tellers.

Now, there are two aspects to the showing of the pictures.

Raymond J. Smith:

The first one is that the use of multiple pictures of the petitioner, Simmons and the second was the limitation of other people depicted in the photographs.

Now, on the first point, all of the five witnesses agree that more than one picture of Simmons was shown to the bank tellers.

Most of the witnesses said that there were three or four.

Mrs. Parlamen specifically remembering three and saying that there could have been four and that was the consensus of what the witnesses said.

William J. Brennan, Jr.:

Were the pictures mug shots or just –?

Raymond J. Smith:

No, they were snapshots, Your Honor taken from the sister and sister-in-law of these two men.

William J. Brennan, Jr.:

Didn’t one of the witnesses say there were 50 or more pictures?

Raymond J. Smith:

Yes they did, Your Honor but as I will try to point out because of the circumstances of the case and because of what all the other witnesses said, I think she was mistaken in what she had said.

Now, the FBI was not content with this initial showing of these pictures and they made — there were various other showings of the pictures.

In fact, right until the day before the trial.

And once again, on each and every occasion, more than one picture of Simmons were shown and on most occasions, a number of three or four were shown.

Now all the witnesses said this.

Now, the Government in its answer, in no way tries to justify this aspect of the showing of the pictures, the multiple use of these pictures because there really is no justification for it.

Now, what were these witnesses —

Hugo L. Black:

Why do you say that it violated due process?

Raymond J. Smith:

It violated due process, Your Honor, because the police authority in this case the Federal Bureau of Investigation was focusing the attention of these witnesses on a particular suspect in this case of Simmons.

Hugo L. Black:

Did you see the pictures?

Raymond J. Smith:

Excuse me, Your Honor?

Hugo L. Black:

Because they let them see the pictures?

Raymond J. Smith:

Not because they let them see the pictures because they — well, yes they let them see the pictures and they used more than one of them.

Hugo L. Black:

Suppose they had let them see the man itself.

Raymond J. Smith:

Under the circumstances of a proper lineup, it would not have been a violation of due process, Your Honor.

But, what were these witnesses to think —

Are you arguing this on constitutional grounds or supervisory power?

Raymond J. Smith:

Both Your Honor.

My primary argument is on constitutional grounds but I’m also saying that since it is a federal case with federal law enforcement officers that it could also be reversed based on supervisory —

William J. Brennan, Jr.:

Well, I gather since Stovall, you have to — you can’t rely on any of the principles of Gilbert and Wade, can you?

This all — this all proceeded —

Raymond J. Smith:

It did, Your Honor but I rely on some of the reasoning used not on the principle of not having an attorney there.

I am not relying on that but some of the Court’s reasoning in the difficulties incurred and the possibilities of a suggestion at a pretrial lineup —

William J. Brennan, Jr.:

Constitutional ground then is due process —

Raymond J. Smith:

Yes, it is, Your Honor in Stovall.

Yes, Your Honor.

Hugo L. Black:

What particular provision in the Constitution do you rely as granting this Court a supervisory authority to create rules of this kind of alleged legislative —

Raymond J. Smith:

Well, Your Honor as far as the supervisory powers are concerned, I’m relying on the cases that I have cited which the Court from time to time when violations of the fundamental fairness of the law of the land have occurred in federal cases that the courts have held that the supervisory powers could be used by the courts to establish the rules of evidence —

Hugo L. Black:

You don’t know which provision the Court relied on for them?

Which constitutional provision?

Raymond J. Smith:

Well, in certain cases, it was the Fourth Amendment, Your Honor.

I know that Your Honor feels that there must be a particular amendment involved and not just the Fifth Amendment for the due process situation.

Hugo L. Black:

What I meant was, the supervisory power which means according to your argument how this Court having a supervisory power from someone which authorizes to create legislative rules.

Do you have any particular provision in the Constitution in mind that would authorize that?

Forget the cases for the moment.

Raymond J. Smith:

No, I do not, Your Honor.

I do not have that in mind.

Now, as far as this use of all the pictures of Simmons, what could the witnesses think except for the fact that at least, the FBI must have thought that Simmons had committed the bank robbery.

And they also must have thought because of the circumstances of the investigation that the investigation of the FBI led them to think that.

Now, there isn’t anything comparable to this in a lineup situation, it’s really more of a show up but the closest thing that could be compared to it would be a situation in which the FBI would say “Now, Mr. Witness, I’m going to show you three lineups here and wait for your decision until the end of the three lineups.”

They would then put Simmons with A, take A away and put Simmons with B, take B away and put Simmons with C.

Well, naturally, after Simmons being in all three of these so called lineups, the witness is going to get the idea that the FBI or the police force inviled things that Simmons didn’t.

How about these testimonies up here as to the weight of evidence?

Raymond J. Smith:

Your Honor, once a — as it was pointed out in Wade, once the witness, first of all, makes this identification, it’s very difficult, if — almost impossible to ever go back on that —

There are ways.

You have to have a lawyer.

Raymond J. Smith:

That’s right, Your Honor.

What I’m trying to contemplate is the absence of the lawyer here it is shaded (Inaudible) of the testimony.

Raymond J. Smith:

Right, but —

You’re agreeing with the position of Wade.

Raymond J. Smith:

No, Your Honor.

I think under these circumstances cross-examination and credibility and weight is not a sufficient test and I would rely on Stovall versus Denno there that certainly the defendant and in that case had adequate cross-examination and question of weight and yet this Court felt that it could be considered a violation of due process under the proper circumstances.

Once that witness takes this —

William J. Brennan, Jr.:

Well, in Stovall, didn’t we affirm a contrary conclusion?

Raymond J. Smith:

Yes — No.

You did, Your Honor but you said because of the particular circumstances in that case, I believe you said that it could be a violation of due process because of — but because of the urgency there and the necessity to bring that particular witness before the — what could have been a dying victim there that you would not reverse the case and affirm that case.

Now, the second aspect of this showing of the pictures, were that the limitation of the other persons depicted in the photographs.

Now, all the witnesses, except one who testified as to the number of the pictures said that there were five or six.

Now, remembering that the FBI had obtained four or five pictures from Andrews’ sister, it is logical to conclude that those were the four or five pictures shown to the witnesses.

We also have Mrs. Parlamen’s testimony that two of them were of Andrews.

Well, with the two of Andrews and the three or four of Simmons.

It shows that likely, all of the pictures were of either Andrews or Simmons in this case.

And I would like to point out too that after all these cross-examinations about how many pictures had been used, the Federal Bureau of Investigation agent who investigated the case never took the stand to say, “Oh!

No, there were more than five or six pictures.

We used 10 or 12 or whatever it was.”

No such testimony was forthcoming.

So I think — it is logical to conclude especially from the fact that they obtained these pictures from the sister and on the same day bring them to the bank.

And they showed what most witnesses say five or six pictures.

So, it’s logical that these were the pictures they got from the sister, brought it over the bank and showed it to them.

Abe Fortas:

Well, you’re not suggesting that we can act on the basis of assuming that those were the facts, are you?

Raymond J. Smith:

No, Your Honor.

The primary reliance of the petitioner, Simmons on this situation is the use of the multiple pictures because there is no question about that but —

Abe Fortas:

And we don’t know how many other pictures if any were shown.

Raymond J. Smith:

We don’t know for a certain, Your Honor, because my —

Abe Fortas:

But we don’t know.

Raymond J. Smith:

That’s right, Your Honor.

One witness as was pointed out did say that there were — could have been 50.

But as I have tried to point out that I believe that because of what the other witnesses said and the circumstances of bringing them right from the bank that it’s likely that five or six were used and that they were all of Simmons or Andrews.

Now, some witnesses said that in the follow-up interviews when they showed the pictures, the number of pictures increased.

And still, we have occasions where as Mrs. Parlamen said that the day she was subpoenaed, she was shown seven pictures.

Four of them were of the petitioner, Simmons and three of them were now of the petitioner Garrett.

Also, a witness who testified that she saw the pictures the day before the trial said that there were four pictures and two of them were of Simmons.

Now, the last phase of this is that at the day of the trial, at the time of the trial, before the jury was picked, three or four witnesses in the accompaniment of the agents of the Federal Bureau of Investigation were on the back of the courtroom.

Raymond J. Smith:

The only ones who were in the courtroom were the defendants and they saw the petitioner, Simmons at that time.

Now, as far as the initial showing, there are three other factors that show the possibility of suggestion here.

The first is that the witnesses all viewed the pictures in the bank in the same room as Mr. Misaika said in the front part of the bank.

Now, it is true that they did not all huddle around and identified the pictures together but they were called up separately but Mr. Misaika did testify that at the time he identified the pictures in the bank, the two other tellers were right near him towards the front of the bank.

So the possibility of — especially if a small number of pictures are shown that the other two who have identified it, well, these must be the men.

Now, there are also indications that the various bank tellers talked over the facts of the case to such an extent that Mr. Misaika, for instance, admitted that he told the FBI things that he actually hadn’t seen.

What a certain man did, what Garrett was supposed to have done, he testified to that.

I mean, he made a statement to that but actually he hadn’t seen it.

And the third thing is, and last, is that though it is correct as the Government has indicated that Mr. Misaika did testify that Simmons had a southern accent on direct examination.

In cross-examination, he — it was brought out that in his statement to the FBI, he said that Simmons had a Tennessee accent.

When he was interrogated as to how he knew that it was a Tennessee accent, he said, “Well, I spent a couple of years in Alabama and South Carolina and the people from Tennessee speak faster.”

And this is about the only basis that he had for it.

Now, it should be noted that at the time he made this statement, the FBI knew that Simmons was living in Pulaski, Tennessee.

So, under all these circumstances, the possibility and the likelihood of suggestion in this case with the use of the multiple photographs particularly of Simmons and also the limitation of the number of people in the lineup.

To save any time of your argument, the sentence is pointed to the discretion of this one.

Raymond J. Smith:

That is Garrett Your Honor.

Yes, I am.

The Government’s argument is that it — they really don’t really contest this business about the use of the multiple photographs.

They really say, “Well, Andrews was our prime suspect too and he wasn’t identified?”

Well, the answer to that is first of all, the number of pictures —

Hugo L. Black:

Do you mean that the Government concedes —

Raymond J. Smith:

No — I’m sorry.

Hugo L. Black:

That it violates the due process to show a witness some pictures?

Raymond J. Smith:

No, it doesn’t concede that but it concedes the factual situation involved of the use — the multiple use of the pictures Your Honor and it really doesn’t answer this in any way or try to justify it.

All it says is that well, Andrews was a prime suspect and he wasn’t identified.

However, he might have been a prime suspect at the beginning of the case but — Simmons was the one that they used the three or four pictures on and he was the one that they focused on at the time of the critical time of the identification.

Now, all these means is that there were two men in the bank.

One was small and dark and the other was tall and lean and that the witnesses considering the four pictures of Simmons involved thought that Simmons resembled the man, the tall, thin man more than Andrews.

However, they did look alike enough so that one witness identified Andrews in the courtroom and then later changed her testimony to the fact that it was Simmons.

Now, all other witnesses in the case actually tie up Simmons — Andrews much more to the case than tie Andrews up to the case much more than Simmons.

Raymond J. Smith:

It was Simmons — Andrews who picked up the car before and after and delivered it.

It was Andrews who was seen with Garrett before the bank robbery and was seen coming with him after the bank robbery and not Simmons.

So the real possibility exists that because of this focusing on Simmons, the wrong man might have been identified and that it could actually have been Andrews involved in the bank robbery.

The last part of the argument on this point by the Government is that they mentioned certain commentators who have said that evils — have listed 12 evils that exist in pretrial identification and that out of these 12 only one exists in the Simmons case.

Well, I’d also like to point out that same one the short period of time that the witness sees the accused during the crime is the only one present in Stovall versus Denno too.

So, the commentators apparently did not conceive that the FBI situation here were to use some multiple ictures.

Now, the second point is that — I will go on to the third point, Your Honor in answer to your question then.

We have here the issue presented by the petitioner Garrett that the trial court erred in allowing his statement in support of his motion to suppress to be used by the Government in its case in chief to prove ownership of certain damaging evidence that was seized from the home of Andrews’ mother.

Now, the Government was going to introduce this evidence, these money wrappers from the bank and other incriminating evidence, and during the course of the trial, the petitioner, Garrett made a motion to suppress this evidence and in support thereof testified that the suitcase and the contents of that suitcase were his.

Over the objection of both Simmons and Garrett, the Government was allowed to introduce into evidence the testimony of Garrett in support of his motion to suppress.

Now, the cases — it is the position of the petitioner Garrett here that he was on the horns of a dilemma, he was forced to sacrifice under the Court’s ruling his rights under the Fifth Amendment in order to enforce his rights under the Fourth Amendment.

Now, the Government’s cited cases and the reasoning of the Government and the cases that they have cited is basically this, and here is I think the most important factor here — is that just like any — this is a situation just like any other trial.

A defendant doesn’t have to take the stand and if he does take the stand, he is responsible for his acts and they can be later used against him.

Well, I don’t believe that is the situation that should be applied in a motion to suppress because in the trial of an ordinary case, the defendant has absolutely no burden.

He has the presumption of innocence.

The Government must prove its case beyond a reasonable doubt.

The defendant need to present no evidence, it can just rely on the insufficiency of the evidence of the Government.

But this is not the case on a motion to suppress.

He has the burden of proof.

The defendant does.

He must show that this evidence was obtained improperly.

And therefore, and under those circumstances, he really is, unlike a trial of the ordinary case, really is on the horns of a dilemma.

And it shouldn’t be a gamble situation in the United States District Court that if we are successful then we can have this — they can never use our statement against us.

It should be that he — this statement that he makes in support of his motion to suppress cannot be used against him whether his motion to suppress is successful or not.

Do you claim that this crime in Garrett is found to be (Inaudible) that ground could also affect both (Inaudible), that could have set this ground?

Raymond J. Smith:

Well, Your Honor, here is a factual situation there.

Simmons did object to this — to the use of this testimony.

However, the trial court did not allow this incriminating evidence in against Simmons.

The only evidence that — the only person that it was allowed in against was the petitioner, Garrett.

However, once that evidence got in, it was so damaging that it would be exceedingly difficult for the jury to erase from its mind the fact of the bank money wrappers and that coupled with this identification of the people in the bank made it impossible for Simmons to get a fair trial.

William J. Brennan, Jr.:

Yes, but nothing that Garrett testified on the motion to suppress implicated Simmons —

Raymond J. Smith:

Not at all.

Not at all Your Honor and none of that evidence was introduced against Simmons.

However, my only point is that once it got in, there had been a connection shown between Simmons and Garrett through other testimony and once it gets in that Garrett has this incriminating evidence in his possession in the house of the mother-in-law of Simmons then the jury was unable to find —

Byron R. White:

Do you challenge the merits of the ruling on the admissibility of the evidence?

Raymond J. Smith:

Yes, I do, Your Honor.

The admissibility of the statement of Garrett, yes.

Byron R. White:

So admissibility of — yes, but how about the admissibility of the evidence found in the search?

Raymond J. Smith:

No, I do not Your Honor.

You mean as far as whether or not the motion to suppress should have been granted or not.

No, I do not.

At this stage, Your Honor.

I do not challenge that.

Byron R. White:

So, as far as you’re concerned the — why don’t you challenge that?

Is it because of the consent of the mother or the mother-in-law or what?

Raymond J. Smith:

Well, based on the findings of the District Court and approved by the Court of Appeals that there were sufficient grounds and that they held that there was consent on the part of the mother to search the house.

Byron R. White:

How was it that the Government could ever have tied the contents of the suitcases with either one of these defendants if the mother-in-law said, “I don’t know the suitcases they are anything of a kind”?

Raymond J. Smith:

I agree with you, Your Honor.

I don’t think they could have had — had he not taken the witness stand but on the other hand —

Byron R. White:

Why did he feel compelled to take the witness stand then?

Raymond J. Smith:

Well, he didn’t know what Government had to begin with.

And secondly, Your Honor wouldn’t that be a terrible situation if the Government introduced its evidence and really didn’t tied in with any one particular man?

It might have been that the jury came to the conclusion that this was Andrews’ suitcase and here is a man whose case was reversed by the Court of Appeals on insufficiency of the evidence and he might have been convicted on the basis of the suitcase —

Byron R. White:

Do you think that they could have — the evidence would have been introduced, they just thought that here are some clothes we found somewhere some place?

Raymond J. Smith:

I think that it would have been received in evidence.

I think it would have because it had been found in the house of the mother of Andrews.

Yes, I do.

Earl Warren:

Do you think — does your argument carry so far as to say that if he had — in order to show that he had standing on his motion that he made a complete confession of the crime that it would be unavailable in the trial?

Raymond J. Smith:

Yes, Your Honor, I do.

I think that anything he says unless they had a statement to that effect given on another occasion but anything that he for the first time says on his motion to suppress should be unavailable in the Government’s case in chief.

Raymond J. Smith:

And the last point I wish to mention was that the photograph should have been producible under Section 3500, two witnesses at least said that they had spoken with the FBI concerning those statements and therefore any statement that was given would be — wouldn’t make any sense unless you had the photographs.

If a witness says, “That’s the man that robbed the bank” to the FBI and there’s a photograph of them, without that photograph, there can’t be adequate cross-examination.

And I think that it — since it is part of the statement in a way that it should be producible under Section 3500 especially in this case of all others where it was so critical of issue of identification of the bank robbers.

Thank you.

Earl Warren:

Mr. Solicitor General?

Erwin N. Griswold:

May it please the Court.

Although this case is here under a single docket number, it is essentially two cases.

The question about the photographs relates to the petitioner, Simmons only and I believe that the question about the testimony on the motion to suppress relates to the petitioner, Garrett only, because it was only admitted against him and referred to him only.

Now, with respect to the question about the photographs, I think the issues can be narrowed somewhat.

No question is raised under the Sixth Amendment that is with respect to the right to counsel.

Thus, the Wade decision itself is not applicable.

Moreover, the trial occurred before June 12, 1967 and thus under the Stovall case, the Wade decision would not be applicable in any event.

That means that the sole question here must be under the Fifth Amendment or under such a general oversight as this Court has with respect to the conduct of criminal cases in the federal court.

As far as the Fifth Amendment is concerned, it would seem to me, I must confess, I find it a little hard to get my fingers on just what the issue, what the complaint is here with respect to the Fifth Amendment but it would have seem to me that this case is a fortiori from the Stovall case.

If the circumstances in that case where that the potential defendant was brought before the witness manacled, did not violate due process as this Court held.

It seems to me that there is no violation here.

There was nothing essentially unfair in this matter.

Indeed, in the Wade opinion itself, the Court referred to a number of circumstances which might remove the taint from an improper lineup and referred to the identification by picture of the defendant prior to the lineup as one of those circumstances.

Here, the pictures were used before the arrest.

They were it seems to me the consequence of a good police work.Because of the white Thunderbird automobile with a long scratch on its side, the police were led to Mrs. Mahon’s home where her son, Andrews either lived or was known.

They went there and gt pictures.

They took the pictures to the employees in the bank the same afternoon as the robbery.

And let me point out that one of the reasons for bringing in pictures is not merely to focus attention on a particular accused but is also to eliminate persons from being accused and in order to make more efficient the activity of the police.

These pictures were used before the arrest.

They were the ordinary and natural vehicle of a good police work under the circumstances.

There were here no prior denials of identity or failures to identify.

The witnesses had good opportunities to see the defendants over an appreciable period of time at the bank during a holdup.

The persons who carried out the hold up were not masked or disguised in any way.

The several witnesses all independently agreed on the identification.

As a matter of fact, they did not identify the prime suspect and agreed on that namely, Andrews.

Erwin N. Griswold:

Andrews was never identified from the photographs although photographs of Andrews were shown to the —

William J. Brennan, Jr.:

Mr. Solicitor General, what do you think the record reflects regarding the number of photographs shown to the bank witnesses and as well, how many different persons?

Erwin N. Griswold:

Well, actually, we have no very good information about that.

Most of the witnesses seem to agree that there were five or six photographs although one of them on page 30 of the records says 20 and one of them on page 25 of the records says 50.

It is also clear that there were more than one photograph each of both Simmons and of Andrews and it also appears that some of these photographs were group photographs in which Simmons or Andrews or maybe both of them appeared with other people.

William J. Brennan, Jr.:

Does it appear that except for those group photographs, any of the photographs were people other than Simmons and Andrews?

Erwin N. Griswold:

No, it does not appear that any of them were but let me point out again that this was on the afternoon of the holdup and when the pictures are obtained, these were available.

Naturally, a police officer would take them to the persons who had witnessed the — who had been present at the holdup to see whether they were on a likely track.

Incidentally, there is also here no suggestion of any improper motives such as ranker or revenge.

The prosecution didn’t bring the pictures into the case.

They were referred to by counsel for the defendants.

The witnesses identified the defendants at the trial and were fully subject to cross-examination.

In our view, the weight to be given to their testimony was for the jury to weigh.

Now, the chief reference to the pictures at the trial was not in terms of the Fifth Amendment, indeed there’s — I believe it is entirely accurate to say that there is no reference certainly in the printed record to the Fifth Amendment or to due process with respect to the use of the pictures in any way at all.

The reference to the pictures at the trial was entirely in terms of the so-called Jencks Act, which is set out on page 2 of the Government’s brief in this case and which requires the United States to produce any statement as here and after defined of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

And the term ‘statement’ is defined in the statute at the bottom of page 2 to mean ‘a written statement made by said witness and signed or otherwise adopted or approved by him or a stenographic, mechanical, electrical or recording or a transcription which is substantially a verbatim recital of an oral statement and recorded contemporaneously with the making of such statement.

Now, it is quite apparent that these photographs were in no sense any part of a statement prepared by these witnesses.

William J. Brennan, Jr.:

Mr. Solicitor General, on that premise namely that they do not come within the producible statements as defined in the Jencks Act itself, Will that suggest the possibility that they might be producible within the principles of the Jencks case?

Erwin N. Griswold:

It seems to me that the producibility is not confined to the Jencks Act.

I fully agree with that.

I have no doubt that the Court in this case could if it had thought it appropriate have required the production of the pictures.

The Court — certainly, no effort was made to have them produced apart from the Jencks Act.

The reference throughout the trial is to I want them under 3500 which is the Jencks supervision and the Court specifically found on page 54 of the record that the pictures were no part of the statements.

Incidentally, the statements were given on February 27th, the day of the robbery and the witnesses didn’t see the pictures until the following day, February 28th, so it is entirely obvious that the pictures are no part of the statement.

It is equally clear to me that the Court could have required the production of the pictures had there been any reason in the record to indicate that this was really relevant or bore on the fairness of the identification.

Here, the Court did not order the production of the pictures.

Nothing was shown by way of prejudice to indicate or even suggest that that was wrong.

Now, we have another point in the case —

Earl Warren:

Was it just an abstract question as to whether this were — came under the Jencks Act or did they argue in the Court —

Erwin N. Griswold:

No, the only question that was ever raised at the trial was whether this came under the Jencks Act.

Earl Warren:

Not the merits of whether they ought to be entered.

Erwin N. Griswold:

That has not been brought into the case until the brief in this Court and the argument here where a general Fifth Amendment and a supervisory oversight of the Court has been referred to but the argument made in the District Court was confined solely to appearance — to production under the Jencks Act.

Earl Warren:

How about the Court of Appeals?

Did they argue the constitutional question there?

Erwin N. Griswold:

I don’t believe so but I’m not entirely familiar with the brief which were filed in the Court of Appeals.

The Court of Appeals decided that the action with respect to the pictures was appropriate.

Hugo L. Black:

Did the defendant state to the trial court any reason to tell the judge why these pictures would be relevant or if to include that in this case?

Erwin N. Griswold:

I think not, Your Honor.

He repeatedly called for their production under the Jencks Act.

The Court repeatedly refused to and finally told counsel that they need not raise the question again with respect to other witnesses because they would not — he would not order them to be produced under the Jencks Act.

It’s obvious that the counsel for the defense wanted the pictures in order to use them in some way in connection with cross-examination of the witnesses but the specific means was — the specific gravamen was not suggested.

Hugo L. Black:

It was not in the case, can you think of any conceivable benefits that they have to find relevant for him to have those pictures?

Erwin N. Griswold:

I — if the pictures have been mug shots, if they had themselves been suggestive in some way or another, I can imagine how it could have been useful in the cross-examination but there is no suggestion that the pictures were anything of that sort and the evidence is to the contrary, the evidence is that they were snapshots and that they were obtained from the sister of one of the defendants out of her elbow.

Hugo L. Black:

Is there any evidence at all that there were anything except known pictures?

Erwin N. Griswold:

There is no evidence whatever that they were anything except snapshots, and to some extent the group pictures but it isn’t known who all the persons were in the groups.

Earl Warren:

I wonder why the judge wouldn’t let them see the pictures so —

Erwin N. Griswold:

I think, Your Honor because —

Earl Warren:

I understood that the prosecution was willing to produce the pictures but the Court said no.

Erwin N. Griswold:

I think the problem was to find the pictures.

The pictures had never been kept together in one place.

There had been no notice before the trial that they would be required.

It doesn’t appear in the record but it’s my understanding that they sought to find the pictures and that nobody could ever come up with it.

Earl Warren:

Am I wrong on my recollection that the prosecution showed the pictures to the witnesses the day before the trial?

Erwin N. Griswold:

No, I think it was no longer before the trial than that but —

Earl Warren:

Well, how long?

Was it in a matter of days?

Erwin N. Griswold:

Matter of days.

Earl Warren:

Why would they disperse it?

Erwin N. Griswold:

I don’t know, Your Honor.

I don’t know what pictures were shown to some of the witnesses some time before the trial.

Erwin N. Griswold:

It doesn’t appear in the record.

I’ve never seen the pictures.

They’re not in the record.

Now, we come to the question which arises with respect to the petitioner, Garrett the question of the interrelation between the Fourth Amendment and the Fifth Amendment.

The fact that the testimony which Garrett gave on his motion to suppress the evidence was later introduced at his trial.

This was a testimony to the effect that the contents of one of the suitcases were his property.

I would like to present first what I would call the direct argument which is that in a matter like this, the defense is put to its choice.

This has been the traditional rule even in cases where possession alone is enough to convict.

It has been followed in a considerable number of cases in the lower federal courts including a well-known decision by Judge Learned Hand.

In Jones against the United States and 362 U.S., this Court recognized these decisions but founded unnecessary to pass on them.

Since in that case it held that the defendant as an invitee or licensee of the premises had standing to raise the question of the validity of a search warrant which the Court then went on to hold was a validly issued.

On the basis of those cases, the defendant can decide whether he will take the stand or not.

The pressure is not put on him by the Government but by the force of circumstances.

He is not compelled to testify.

If he does not testify nothing can be used against him.

On the other hand, if he chooses to testify in open court under the advice of counsel then the evidence so produced is available as testimony in open court under the advice of counsel ordinarily is.

But in this case, it seems to me there is a stronger reason for accepting the evidence which is that the claim under the Fourth Amendment was wholly without basis.

Here, the search was of premises in which the defendant had no interest whatever.

He never claimed that he had any interest in the premises and the evidence of the owner of the premises is unequivocal that he did not.

This appears twice in the record on page 21 and on page 61.

Moreover, the search was consented to by the owner of the premises.

This was the testimony of the FBI agent which the Court accepted in ruling on the motion to suppress and Mrs. Mahon “led the search”, he testified.

Byron R. White:

What if, Mr. Solicitor — what if the lady had said why those suitcases belong to Mr. Garrett or is that right?

Erwin N. Griswold:

Garrett

Byron R. White:

But they are here in my house and you certainly may search them.

Erwin N. Griswold:

I’ve suppose that would come within the Jones case.

If he — if they were there with her permission, he was a licensee and under the Jones case he had a standing with respect to the premises.

And —

Byron R. White:

Well, what if — what if she said no, “I don’t know whose suitcases these are” but what if the police knew whose they were?

They didn’t tell her anything they just said “we want to search these suitcases” —

Erwin N. Griswold:

There’s no evidence here that the police did know —

Byron R. White:

What if they did?

Erwin N. Griswold:

If she gives permission for them to be taken, I find it difficult to see that –

Byron R. White:

Why — why shouldn’t the Constitution protect the facts as well as the house or some — some living quarters?

Why the police —

Erwin N. Griswold:

If —

Byron R. White:

— have no right to get into that suitcase do they — just because it happens to be in somebody else’s house?

Erwin N. Griswold:

If the suitcases found on the public highway, I suppose it can be taken without a search warrant.

Byron R. White:

If it’s been abandoned?

Erwin N. Griswold:

If it’s been abandoned then it might well be regarded that the suitcase under all the circumstances had been abandoned.

It seemed very unlikely that the defendant was going to come back and claim it in the immediate future —

Earl Warren:

There was no evidence that he lived there?

Erwin N. Griswold:

There was no evidence that he lived there or that he had any relationship whatever with the premises.

In the Jones case, the Court said that the rule of standing there developed “would of course not avail those who by virtue of their wrongful presence cannot invoke the privacy of the premises searched”.

And just last term in Warden against Hayden, this Court said that “We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than of property.”

Here, the defendant never had any claimed privacy whatever in the premises involved.

He left his property without any authority and the person who had authority over the premises relinquished it without any claim of violation of the premises.

By relinquishing control over the suitcase, Garrett surrendered whatever right to privacy he may have had as to the contents or at least subjected it to the actions of the person who did have the right to privacy as to the premises.

Now, as I thought about this problem which is not an easy one, I’ve tried to find the way to test it.

The issue is, I suppose, whether there should be a general rule that testimony given by a defendant on a motion to suppress is never admissible against him at his trial.

There is a certain appeal for that, perhaps, though it goes far beyond anything that can be found in the clause of the Fifth Amendment which grants the privilege against self-incrimination which you will recall or read simply nor can be compelled in any criminal case to be a witness against himself.

There’s nothing there that says that evidence which was not compelled cannot be used just because the defendant deliberately chose to give it for his own advantage.

Let us suppose that at the motion to suppress the defendant, a hypothetical defendant not this defendant here.

The defendant testified that the clothes were his then at the trial he chooses to take the stand and testify and he testified that the clothes are not his.

In such a case, could it be supposed that his prior inconsistent testiony could not be used to impeach his testimony at the trial?

But if it can be so used would not that be using his prior testimony against him?

And if it could be used there, then there is no rule against using testimony on a motion to suppress and why should not the testimony be used here since it was freely given in open court under the advice of counsel?

If this question is to be decided, it should be in a case where the defendant is really caught in a dilemma not in one where his claim is wholly unsupported even on his own testimony as is the case here.

Certainly, the ordinary rule is the testimony given under — without compulsion in open court under the advice of counsel is to be regarded as responsibly given and to be taken seriously.

Here, the claim under the Fourth Amendment was essentially frivolous and the question of putting the defendant to a dilemma between the Fourth Amendment and the Fifth Amendment should be left to a case where that dilemma is really presented on facts which give it substance.

Erwin N. Griswold:

Garrett could not succeed on a motion to suppress unless his privilege had been invaded.

He had to show some relationship to the place where the seizure was made.

He was never able to show this.

Without it, the fact that he owned the suitcase or its contents never became material.

He was never in a situation or the giving of the testimony that he owned the contents of the suitcase would entitle him to have the evidence suppressed.

I am puzzled as to why he wanted to testify.

The clear fact that seems to me here is that if Garrett had not testified this evidence could not have been used.

As a matter of fact, two suitcases were seized by the Government at that time exhibit three and exhibit four.

Garrett’s testimony related only to exhibit four and exhibit three was never introduced into evidence.

There was nothing to connect this suitcase with Garrett except his own testimony and I find it hard to see how he was put to any dilemma.

All he had to do was to sit back and object to the relevancy of the evidence if as and when the Government somehow or rather sought to introduce it.

If Garrett had simply refrained from giving his testimony, the evidence couldn’t have been used against him.

Therefore —

William J. Brennan, Jr.:

Is this where the contents — is this the one Mr. Solicitor General where the contents were the bank wrappers or something money wrappers?

Erwin N. Griswold:

But there is nothing to connect it with Garrett or anyone else.

William J. Brennan, Jr.:

What were the contents?

Erwin N. Griswold:

The contents were clothes and some money wrappers, I believe.

The contents were clearly related to the robbery.

William J. Brennan, Jr.:

The robbery, yes.

Erwin N. Griswold:

But they were not connected with any of the defendant —

William J. Brennan, Jr.:

Any of the defendants at all?

Erwin N. Griswold:

Not any of the defendants at all.

Byron R. White:

Do you think they — you think there was a probable cause to — do you think the officers could have shown probable cause to search the suitcases?

Do you think they could have gotten a warrant to search those suitcases?

Erwin N. Griswold:

It’s not clear to me that they could under the facts which were no longer them at the time —

Byron R. White:

— or the house either?

Erwin N. Griswold:

Or whether this comes within a hot pursuit situation like that in Warden against Hayden.

Here, it wasn’t quite so hot except that they had just found the Thunderbird automobile.

They knew whose it was and they went immediately to that house.

And it might be that within Warden against Hayden this would be within that scope.

Erwin N. Griswold:

The fact that this material was evidentiary would no longer precluded from being seized and I think if we —

Byron R. White:

Yes, but if Warden against Hayden doesn’t relieve the necessity for having probable cause or for getting a warrant except in an extraordinary circumstances?

Erwin N. Griswold:

Well, what I’m trying to suggest is that Warden against Hayden might have been enough to show that there were the extraordinary circumstances here.

Garrett was in fact under no compulsion to give the testimony.

He chose to give it and did so in open court under the advice of counsel.

We submit that the evidence he so gave was properly used at this trial.

Abe Fortas:

May I ask you Mr. Solicitor General, suppose — suppose he had a valid Fourth Amendment point and suppose the Court sustained it, would the statement that he made at the suppression hearing be usable before the jury?

Erwin N. Griswold:

The testimony that he owned the contents of the suitcase was not relevant as I see it to his Fourth Amendment point.

The Fourth Amendment protects as the Court said last term —

Abe Fortas:

Now, I beg your pardon but I’m really trying to get at a little different point.

Let me — let us suppose that he testified at a hearing before the judge without the jury for the purpose of securing suppression of a particular piece of evidence and the judge ruled that the — that he was right and that the evidence could not be introduced then, however, the prosecutor offers his statement made at the suppression hearing in the criminal prosecution in the presence of the jury.

Is that alright in your opinion or there’s a violation of his right?

Erwin N. Griswold:

I would suppose that — that in so far as the evidence he gave at the suppression hearing was relevant to the question of suppression that it would not be admissible at the trial.

Byron R. White:

Why not?

Erwin N. Griswold:

I am sorry, Your Honor?

Byron R. White:

Why not, Mr. Solicitor General?

Why wouldn’t it be — why wouldn’t it be admissible?

Erwin N. Griswold:

Because then there would be a heavy barrier against the making of the claim under the Fourth Amendment.

Perhaps, I’m wrong on that.

Perhaps, I’ve conceded too much.

I think that the — the cases to which I referred in the lower courts generally go so far as to say that it — it would be admissible in as far as this case is concerned, it seems to me that we don’t have a question put by Mr. Justice Fortas because the evidence given at the motion to suppress is irrelevant to the motion to suppress.

It showed neither by his evidence nor by any other evidence that he had any valid standing with respect to the premises, and as this Court has said it is privacy and not property which is protected by the Fourth Amendment.

Hugo L. Black:

May I ask you just to put a square case on.

Take a case where a man is charged having possession of whisky, liquor in a state where it’s illegal to have possession of liquor.

He is arrested by having to know this happens.

So he is arrested and he flees.

Is the evidence becomes necessary — become necessary to do something about this and he comes in and claims this whisky, this alcohol as his own.

Do I understand you to say in reference to what you did a moment ago your view to be that probably that evidence that he testified that that was his could not be used against him in the trial for having possession of it?

Erwin N. Griswold:

I think I was wrong in saying that.

Certainly, the fact that the evidence can be used as exactly what Judge Learned Hand decided in the case to which reference is made in the Jones case, sentenced — quoted in the Jones case.

Erwin N. Griswold:

The petitioner is bar shrank from that predicament but they were obliged to choose one horn of the dilemma would stand for the proposition that the evidence if given would be admissible at their trial.

Earl Warren:

You go back to the point, I assume, that but it was not compelled to be given, he chose to give it in a proceeding that was to his own advantage to testify.

Erwin N. Griswold:

That would be the position and that is the view which has been taken by a considerable number of lower federal courts.

Earl Warren:

Mr. Smith, your time has expired but I would like to ask you — I would like to ask you a question or so.

Raymond J. Smith:

Yes, Your Honor.

Earl Warren:

On the constitutionality issue that you raised here, was that raised in the trial court?

Raymond J. Smith:

It was raised in the Court of Appeals Your Honor —

Earl Warren:

Was it raised in the trial court?

Raymond J. Smith:

Only in the sense that on the motion for judgment of the Court to let the close of all the evidence if this motion was — if this evidence was obtained in violation of the due process then there would be no other evidence left but per se, it was not raised —

Earl Warren:

It was not argued?

Raymond J. Smith:

It was not argued as far as this —

Earl Warren:

The Jencks Act was argued?

Raymond J. Smith:

Yes, Your Honor.

Earl Warren:

Was it in your briefs in the Court of Appeals?

Raymond J. Smith:

It’s certainly was, Your Honor.

Earl Warren:

Did the Court pass on it?

Raymond J. Smith:

Yes it did.

Earl Warren:

In what language?

I have your opinion here.

I just looked at it hastily.

I don’t — I didn’t see where it passed on the constitutionality of it.

It says here there is nothing in the Jencks Act which includes the photograph which is not a part of the statement as they are defined but I don’t see anything in there that — maybe I read it too hastily —

Raymond J. Smith:

There is nothing in the opinion that speaks specifically of the due process question, Your Honor.

But it definitely was raised in the brief and they just kind of went to the question of whether the real thing here they said was there was enough cross-examination and it goes to the weight of the evidence and that’s all they considered about the pictures.

Earl Warren:

It was specifically raised as it is in this Court?

Raymond J. Smith:

Definitely, Your Honor.

Earl Warren:

The same —

Raymond J. Smith:

Yes it was.

Do you mean that in your brief in the Jencks case that the Jencks Act comes to the (Inaudible)?

Raymond J. Smith:

Yes, Your Honor I think it —

(Voice Overlap)

Raymond J. Smith:

The Jencks?

The Jencks case.

Raymond J. Smith:

No, I would not say that that would be a constitutional question.

No I would not.

William J. Brennan, Jr.:

Mr. Smith, I am puzzled.

Is this is a federal prosecution —

Raymond J. Smith:

Yes it is, Your Honor.

Byron R. White:

And you suggest that the refusal of the trial judge to order that the pictures to be produced if not within the Government’s obligation under the Jencks statute may nevertheless have been the Government’s obligation as a constitutional matter?

Do you suggest that’s a due process matter?

Raymond J. Smith:

No I do not, You Honor.

Byron R. White:

What is it?

It’s a confrontation matter, is it?

Raymond J. Smith:

I think there are two questions, Your Honor.

One of the photographs are producible, and two, whether the due process question comes up in the use of the photographs by the FBI in the —

William J. Brennan, Jr.:

This is independently then of their production is that it?

Raymond J. Smith:

Definitely, Your Honor.

Completely independent.

Byron R. White:

What constitutional right do you rely on as far as their production is concerned?

Raymond J. Smith:

None, just the Jencks Act.

Abe Fortas:

Well, suppose there are evidence to the effect that the Government had used photographs of the defendant which were doctored and then an appropriate demand were made to compel the Government to produce those photographs, would that involve a constitutional principle?

Raymond J. Smith:

Yes, Your Honor then there would be —

Abe Fortas:

But that is not in this case —

Raymond J. Smith:

That is correct Your Honor.

Abe Fortas:

Right.

Earl Warren:

Thank you, Mr. Smith.

Raymond J. Smith:

Thank you very much.