Impact Decisions of the U.s. Supreme Court: Criminal Cases 1972 Term
| Publication year | 1973 |
| Pages | 29 |
William Erickson, Colorado Supreme Court Justice.
I. PROCEDURE
A. Investigative Phase
1. Eyewitness Identification a. Fre-Stovall v. Denno, 388 U.S. 293 (1967), Identification: Neil v. Biggers, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
An affirmation by an equally divided USSC is not an actual adjudication on the merits which would bar federal habeas corpus consideration. A rape victim observed her assailant by a hall light shining into the darkened kitchen and also outdoors under a bright, full moon. The entire episode lasted between fifteen minutes and half an hour. During the next seven months, the victim saw numerous suspects and thirty to forty photographs, but identified none. Finally, two detectives walked the defendant past the victim and made him say the words the assailant had used. She made an identification. Under the totality of the circumstances test, the identification was not tainted by a substantial likelihood of misidentification, and the identification testimony was properly allowed to go to the jury.
b. Photographic Lineup: United States v. Ash, 41 U.S.L.W. 4981 (U.S., June 21, 1973).
No right to counsel exists to require the presence of the counsel for the accused at a post-indictment photographic "lineup."
"The Sixth Amendment does not grant an accused the right to have counsel present when the Government conducts a post-indictment photographic display, containing a picture of the accused, for the purpose of allowing a witness to attempt an identification of the offender. A pretrial event constitutes a 'critical stage' when the accused requires aid in coping with legal problems or help in meeting his adversary. Since the accused is not present at the time of the photographic display, and, as here, asserts no right to be present, there is no possibility that he might be misled by his lack of familiarity with the law or overpowered by his professional adversary."
2. Search and Seizure
a. Detention of Fingernail Scraping: Cupp v. Murphy, 93 S.Ct. 2000, 36 L.Ed.2d 900(1973).
Murphy was convicted in state court of second-degree murder of his estranged wife. Traces of skin and blood found under the defendant's fingernails (during a brief detention without formal arrest) were used in evidence. The defendant claimed that the fingernail scrapings were the result of an illegal search and seizure. At the time of detaining Murphy to take samples of the material under his fingernails, the police actually had probable cause to arrest. The Court applied the "rationale of Chimel” and held that the detention to secure "highly evanescent evidence" was reasonable, although no formal arrest was made. The Court remarked that since no formal arrest was made, no full Chimel search would have been justified.
b. Consent Search: Schneckloth v. Bustamonte, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The defendant sought to suppress certain evidence seized during an automobile search which had been consented to by a person not in custody who was in control of the car. The defendant argued that the state must demonstrate that the consent had been given with the understanding that it could be freely and effectively withheld. The Supreme Court analyzed the issue of voluntary consent and denied relief for the following reasons:
— Voluntariness of consent to search is a question of fact to be determined from the totality of the circumstances. Knowledge of the right to refuse consent is but one factor to be considered and is not a sine qua non of an effective consent.
—A Miranda-type warning of the right to refuse consent to search is neither practical nor required.
— Consent to search is not a "waiver" of rights in the sense of the doctrine of Johnson v. Zerbst, 304 U.S. 458, which requires an "intentional relinquishment or abandonment of a known right or privilege."
— The "waiver" standard of Johnson v. Zerbst only goes to those rights which protect a fair criminal trial.
Concurring opinions of note: Justice Powell wrote a concurring opinion with which Rehnquist, J. and Burger, C.J. joined formally. Blackman, J. agreed with "nearly all." This concurring view would hold that, unless there is a colorable claim of innocence, federal habeas corpus review on Fourth Amendment claims should be confined solely to the question of whether the petitioner had a fair opportunity to raise his claim and have it adjudicated in the state courts (i.e., Kaufman v. United States, 394 U.S. 217, should be overruled).
c. Quasi-Inventory Car Search: Cady v. Dombrowski, 41 U.S.L.W. 4995 (U.S. June 21, 1973).
The defendant was arrested for drunk driving after he crashed his car into a bridge abutment near West Bend, Wisconsin. Upon learning that the defendant was a Chicago police officer, the West Bend police searched the disabled car for the revolver which they believed that the defendant was required to carry. They first searched the car at the scene of the accident and again later, more thoroughly, at the garage to which the car had been towed. The search at the garage included a search of the locked trunk. During all this time, the defendant was in custody either at the police station or in the local hospital being cared for because of injuries suffered in the accident. Some of the time he was drunk and some of the time comatose. A West Bend officer testified that the effort to find the revolver was "standard procedure in our department" to guard against the revolver falling into the wrong hands. The search resulted in evidence which was used in the conviction of the defendant for murder. The defendant sought to suppress the fruits of the search of his car.
The Supreme Court held that the search was not unreasonable, since it was similar to an inventory search and had been undertaken to protect the public, and cited Harris v. United States, 390 U.S. 234 (car impounded as evidence, inventory search), and Cooper v. California, 386 U.S. 58 (car impounded pending forfeiture under state law), as precedent. Brennan, Douglas, Stewart and Marshall dissented. They saw no exception to the warrant requirement present in the circumstances. Compare Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
d. Border Search: Almeida-Sanchez v. United States, 41 U.S.L.W. 4970 (U.S., June 21, 1973).
The petitioner challenged evidence seized by border patrol agents during a warrantless search which was conducted about 25 air miles from the border on a road which comes no closer than 20 air miles to the border and which was carried out without probable cause or consent. The Supreme Court suppressed the evidence holding that: "Whatever the permissible scope of intrusiveness of a routine border search might be," routine border searches must be within a reasonable distance of the border or its functional equivalent (e.g., St. Louis after a non-stop flight from Mexico City). The search in this case was not within a reasonable distance.
e. First Amendment Seizures: Heller v. New York, Roaden v. Kentucky, infra, IIC 8.
g. Handwriting Exemplars: United States v. Mara, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).
An order to a grand jury witness to furnish handwriting exemplars violates no constitutional rights and needs no preliminary showing of reasonableness.
h. Voice Exemplars: United States v. Dionisio, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).
Compelling a grand jury witness to furnish a voice exemplar violated neither the witness's Fourth or Fifth Amendment rights. A grand jury subpoena is not a "seizure," so no showing of reasonableness was needed. Davis v. Mississippi, 394 U.S. 721 (distinguished).
i. Standing: Brown v. United States, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).
The petitioners were convicted of transporting stolen goods in interstate commerce, 18 U.S.C. § 2314, and conspiring to do so, 18 U.S.C. § 871. Certain evidence had been seized from a co-conspirator's warehouse under an admittedly defective warrant. The petitioners were denied standing to challenge the admission of the evidence, because:
— They were not present on the premises at the time of the search and seizure.
— They had no proprietary or possessory interest in the premises.
— They were not charged with an offense which includes as an essential element possession of the seized evidence at the time of the seizure. (Jones v. United States, 362 U.S. 257 distinguished).
Jones was generally questioned in light of Simmons v. United States, 390 U.S. 377. An admitted Bruton violation, Bruton v. United States, 391 U.S. 123, was held harmless.
B. Pretrial Procedure
1. Grand Juries
a. Handwriting Exemplars from Grand Jury Witness: United States v. Mora, supra, at I A 2 g.
b. Voice Exemplar from Grand Jury Witness: United States v. Dionisio, supra at IA2h.
2. Guilty Pleas
a. Attack on Guilty Plea: Fontaine v. United States, 93 S.Ct. 1461, 36 L.Ed.2d 169(1973).
The petitioner sought to collaterally attack and vacate his guilty plea on the grounds that it had been induced by a combination of coercion and mental and physical illness. The District Court and the Court of Appeals denied relief because the trial court had fully complied with Rule 11 (Fed. R. Crim. P.). The Supreme Court held that the petitioner's detailed factual allegations set out a claim which entitled him to an evidentiary hearing in spite of Rule 11 compliance. His claims were not the sort which Rule 11 can effectively treat.
3. Discovery
a Notice of Alibi: Wardius v. Oregon, 93 S.CT. 2208 (1973).
"Notice of Alibi" rules may not be constitutionally applied unless reciprocal discovery rights are given to defendants.
C. Procedure at Trial
1. Speedy Trial
a Speedy Trial Remedy: Strunk v. United States, 93 S.Ct. 2260 (1973).
The only possible remedy for...
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