SCHMERBER v. CALIFORNIA
384 U.S. 757 (1966)

No. 658.
Argued April 25, 1966
Decided June 20, 1966

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor.[fn1] He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving.[fn2] At the direction of a police officer, a blood sample was then withdrawn from petitioner's body by a physician at the hospital. Page 759 The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication, and the report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. He contended that in that circumstance the withdrawal of the blood and the admission of the analysis in evidence denied him due process of law under the Fourteenth Amendment, as well as specific guarantees of the Bill of Rights secured against the States by that Amendment: his privilege against self-incrimination under the Fifth Amendment; his right to counsel under the Sixth Amendment; and his right not to be subjected to unreasonable searches and seizures in violation of the Fourth Amendment. The Appellate Department of the California Superior Court rejected these contentions and affirmed the conviction.[fn3] In view of constitutional decisions since we last considered these issues in Breithaupt v. Abram, 352 U.S. 432 — see Escobedo v. Illinois, 378 U.S. 478; Malloy v. Hogan, 378 U.S. 1, and Mapp v. Ohio, 367 U.S. 643 — we granted certiorari. 382 U.S. 971. We affirm.

1. THE DUE PROCESS CLAUSE CLAIM.
   Breithaupt was also a case in which police officers caused blood to be withdrawn from the driver of an automobile involved in an accident, and in which there was ample justification for the officer's conclusion that the driver was under the influence of alcohol. There, as here, the extraction was made by a physician in a simple, medically acceptable manner in a hospital environment. Page 760 There, however, the driver was unconscious at the time the blood was withdrawn and hence had no opportunity to object to the procedure. We affirmed the conviction there resulting from the use of the test in evidence, holding that under such circumstances the withdrawal did not offend "that `sense of justice' of which we spoke in Rochin v. California, 342 U.S. 165." 352 U.S., at 435. Breithaupt thus requires the rejection of petitioner's due process argument, and nothing in the circumstances of this case[fn4] or in supervening events persuades us that this aspect of Breithaupt should be overruled.

2. THE PRIVILEGE AGAINST SELF-INCRIMINATION CLAIM.
   Breithaupt summarily rejected an argument that the withdrawal of blood and the admission of the analysis report involved in that state case violated the Fifth Amendment privilege of any person not to "be compelled in any criminal case to be a witness against himself," citing Twining v. New Jersey, 211 U.S. 78. But that case, holding that the protections of the Fourteenth Amendment do not embrace this Fifth Amendment privilege, has been succeeded by Malloy v. Hogan, 378 U.S. 1, 8. We there held that "[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, Page 761 and to suffer no penalty . . . for such silence." We therefore must now decide whether the withdrawal of the blood and admission in evidence of the analysis involved in this case violated petitioner's privilege. We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature,[fn5] and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.
   
   It could not be denied that in requiring petitioner to submit to the withdrawal and chemical analysis of his blood the State compelled him to submit to an attempt to discover evidence that might be used to prosecute him for a criminal offense. He submitted only after the police officer rejected his objection and directed the physician to proceed. The officer's direction to the physician to administer the test over petitioner's objection constituted compulsion for the purposes of the privilege. The critical question, then is whether petitioner was thus compelled "to be a witness against himself."[fn6] Page 762
   
   If the scope of the privilege coincided with the complex of values it helps to protect, we might be obliged to conclude that the privilege was violated. In Miranda v. Arizona, ante, at 460, the Court said of the interests protected by the privilege: "All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. To maintain a `fair state-individual balance,' to require the government `to shoulder the entire load' . . . to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth." The withdrawal of blood necessarily involves puncturing the skin for extraction, and the percent by weight of alcohol in that blood, as established by chemical analysis, is evidence of criminal guilt. Compelled submission fails on one view to respect the "inviolability of the human personality." Moreover, since it enables the State to rely on evidence forced from the accused, the compulsion violates at least one meaning of the requirement that the State procure the evidence against an accused "by its own independent labors."
   
   As the passage in Miranda implicitly recognizes, however, the privilege has never been given the full scope which the values it helps to protect suggest. History Page 763 and a long line of authorities in lower courts have consistently limited its protection to situations in which the State seeks to submerge those values by obtaining the evidence against an accused through "the cruel, simple expedient of compelling it from his own mouth. . . . In sum, the privilege is fulfilled only when the person is guaranteed the right `to remain silent unless he chooses to speak in the unfettered exercise of his own will.'" Ibid. The leading case in this Court is Holt v. United States, 218 U.S. 245. There the question was whether evidence was admissible that the accused, prior to trial and over his protest, put on a blouse that fitted him. It was contended that compelling the accused to submit to the demand that he model the blouse violated the privilege. Mr. Justice Holmes, speaking for the Court, rejected the argument as "based upon an extravagant extension of the Fifth Amendment," and went on to say: "[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material. The objection in principle would forbid a jury to look at a prisoner and compare his features with a photograph in proof." 218 U.S., at 252-253.[fn7]
   
   It is clear that the protection of the privilege reaches an accused's communications, whatever form they might Page 764 take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers. Boyd v. United States, 116 U.S. 616. On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.[fn8] The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling "communications" or "testimony," but that compulsion which makes a suspect or accused the source of "real or physical evidence" does not violate it.
   
   Although we agree that this distinction is a helpful framework for analysis, we are not to be understood to agree with past applications in all instances. There will be many cases in which such a distinction is not readily drawn. Some tests seemingly directed to obtain "physical evidence," for example, lie detector tests measuring changes in body function during interrogation, may actually be directed to eliciting responses which are essentially testimonial. To compel a person to submit to testing in which an effort will be made to determine his guilt or innocence on the basis of physiological responses, whether willed or not, is to evoke the spirit and history of the Fifth Amendment. Such situations call to mind the principle that the protection of the privilege "is as broad as the mischief against which it seeks to guard," Counselman v. Hitchcock, 142 U.S. 547, 562. Page 765
   
   In the present case, however, no such problem of application is presented. Not even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis. Petitioner's testimonial capacities were in no way implicated; indeed, his participation, except as a donor, was irrelevant to the results of the test, which depend on chemical analysis and on that alone.[fn9] Since the blood test evidence, although an incriminating product of compulsion, was neither petitioner's testimony nor evidence relating to some communicative act or writing by the petitioner, it was not inadmissible on privilege grounds.

3. THE RIGHT TO COUNSEL CLAIM.
   This conclusion also answers petitioner's claim that, in compelling him to submit to the test in face of the fact that his objection was made on the advice of counsel, Page 766 he was denied his Sixth Amendment right to the assistance of counsel. Since petitioner was not entitled to assert the privilege, he has no greater right because counsel erroneously advised him that he could assert it. His claim is strictly limited to the failure of the police to respect his wish, reinforced by counsel's advice, to be left inviolate. No issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented. The limited claim thus made must be rejected.
   

3. THE SEARCH AND SEIZURE CLAIM.
   In Breithaupt, as here, it was also contended that the chemical analysis should be excluded from evidence as the product of an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. The Court did not decide whether the extraction of blood in that case was unlawful, but rejected the claim on the basis of Wolf v. Colorado, 338 U.S. 25. That case had held that the Constitution did not require, in state prosecutions for state crimes, the exclusion of evidence obtained in violation of the Fourth Amendment's provisions. We have since overruled Wolf in that respect, holding in Mapp v. Ohio, 367 U.S. 643, that the exclusionary rule adopted for federal prosecutions in Weeks v. United States, 232 U.S. 383, must also be applied in criminal prosecutions in state courts. The question is squarely presented therefore, whether the chemical analysis Page 767 introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure.
   
   The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf we recognized "[t]he security of one's privacy against arbitrary intrusion by the police" as being "at the core of the Fourth Amendment" and "basic to a free society." 338 U.S., at 27. We reaffirmed that broad view of the Amendment's purpose in applying the federal exclusionary rule to the States in Mapp.
   
   The values protected by the Fourth Amendment thus substantially overlap those the Fifth Amendment helps to protect. History and precedent have required that we today reject the claim that the Self-Incrimination Clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime. But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. That Amendment expressly provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." (Emphasis added.) It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of "persons," and depend antecedently upon seizures of "persons," within the meaning of that Amendment.
   
   Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers — "houses, papers, and Page 768 effects" — we write on a clean slate. Limitations on the kinds of property which may be seized under warrant,[fn10] as distinct from the procedures for search and the permissible scope of search,[fn11] are not instructive in this context. We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol content, the Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.
   
   In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant. Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor.[fn12] The police officer who arrived Page 769 at the scene shortly after the accident smelled liquor on petitioner's breath, and testified that petitioner's eyes were "bloodshot, watery, sort of a glassy appearance." The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness. He thereupon informed petitioner "that he was under arrest and that he was entitled to the services of an attorney, and that he could remain silent, and that anything that he told me would be used against him in evidence."
   
   While early cases suggest that there is an unrestricted "right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime," Weeks v. United States, 232 U.S. 383, 392; People v. Chiagles, 237 N.Y. 193, 142 N.E. 583 (1923) (Cardozo, J.), the mere fact of a lawful arrest does not end our inquiry. The suggestion of these cases apparently rests on two factors — first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused, United States v. Rabinowitz, 339 U.S. 56, 72-73 (Frankfurter, J., dissenting); second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment's purpose to attempt to confine the search to those objects alone. People v. Chiagles, 237 N.Y., at 197-198, 142 N.E., at 584. Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body's surface. The interests in Page 770 human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.
   
   Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner's blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and, absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that the inferences to support the search "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 13-14; see also Aguilar v. Texas, 378 U.S. 108, 110-111. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.
   
   The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened "the destruction of evidence," Preston v. United States, 376 U.S. 364, 367. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had Page 771 to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.
   
   Similarly, we are satisfied that the test chosen to measure petitioner's blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. See Breithaupt v. Abram, 352 U.S., at 436, n. 3. Such tests are a commonplace in these days of periodic physical examinations[fn13] and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of fear, concern for health, or religious scruple might prefer some other means of testing, such as the "breathalyzer" test petitioner refused, see n. 9, supra. We need not decide whether such wishes would have to be respected.[fn14]
   
   Finally, the record shows that the test was performed in a reasonable manner. Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most Page 772 rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
   
   We thus conclude that the present record shows no violation of petitioner's right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual's person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Affirmed

Footnotes:

1. Page 758 California Vehicle Code § 23102(a) provides, in pertinent part, "It is unlawful for any person who is under the influence of intoxicating liquor . . . to drive a vehicle upon any highway. . . ." The offense is a misdemeanor.

2. Page 758 Petitioner and a companion had been drinking at a tavern and bowling alley. There was evidence showing that petitioner was driving from the bowling alley about midnight November 12, 1964, when the car skidded, crossed the road and struck a tree. Both petitioner and his companion were injured and taken to a hospital for treatment.

3. Page 759 This was the judgment of the highest court of the State in this proceeding since certification to the California District Court of Appeal was denied. See Edwards v. California, 314 U.S. 160.

4. Page 760 We "cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest." Breithaupt v. Abram, 352 U.S., at 441 (WARREN, C.J., dissenting). It would be a different case if the police initiated the violence, refused to respect a reasonable request to undergo a different form of testing, or responded to resistance with inappropriate force. Compare the discussion at Part IV, infra.

5. Page 761 A dissent suggests that the report of the blood test was "testimonial" or "communicative," because the test was performed in order to obtain the testimony of others, communicating to the jury facts about petitioner's condition. Of course, all evidence received in court is "testimonial" or "communicative" if these words are thus used. But the Fifth Amendment relates only to acts on the part of the person to whom the privilege applies, and we use these words subject to the same limitations. A nod or head-shake is as much a "testimonial" or "communicative" act in this sense as are spoken words. But the terms as we use them do not apply to evidence of acts noncommunicative in nature as to the person asserting the privilege, even though, as here, such acts are compelled to obtain the testimony of others.

6. Page 761 Many state constitutions, including those of most of the original Colonies, phrase the privilege in terms of compelling a person to give "evidence" against himself. But our decision cannot turn on the Fifth Amendment's use of the word "witness." "[A]s the Page 762 manifest purpose of the constitutional provisions, both of the States and of the United States, is to prohibit the compelling of testimony of a self-incriminating kind from a party or a witness, the liberal construction which must be placed upon constitutional provisions for the protection of personal rights would seem to require that the constitutional guaranties, however differently worded, should have as far as possible the same interpretation . . . ." Counselman v. Hitchcock, 142 U.S. 547, 584-585. 8 Wigmore, Evidence § 2252 (McNaughton rev. 1961).

7. Page 763 Compare Wigmore's view, "that the privilege is limited to testimonial disclosures. It was directed at the employment of legal process to extract from the person's own lips an admission of guilt, which would thus take the place of other evidence." 8 Wigmore, Evidence § 2263 (McNaughton rev. 1961). California adopted the Wigmore formulation in People v. Trujillo, 32 Cal.2d 105, 194 P.2d 681 (1948); with specific regard to blood tests, see People v. Haeussler, 41 Cal.2d 252, 260 P.2d 8 (1953); People v. Duroncelay, 48 Cal.2d 766, 312 P.2d 690 (1957). Our holding today, however, is not to be understood as adopting the Wigmore formulation.

8. Page 764 The cases are collected in 8 Wigmore, Evidence § 2265 (McNaughton rev. 1961). See also United States v. Chibbaro, 361 F.2d 365 (C.A. 3d Cir. 1966); People v. Graves, 64 Cal.2d 208, — , 411 P.2d 114, 116 (1966); Weintraub, Voice Identification, Writing Exemplars and the Privilege Against Self-Incrimination, 10 Vand. L. Rev. 485 (1957).

9. Page 765 This conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable by-product of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test — products which would fall within the privilege. Indeed, there may be circumstances in which the pain, danger, or severity of an operation would almost inevitably cause a person to prefer confession to undergoing the "search," and nothing we say today should be taken as establishing the permissibility of compulsion in that case. But no such situation is presented in this case. See text at n. 13 infra. Petitioner has raised a similar issue in this case, in connection with a police request that he submit to a "breathalyzer" test of air expelled from his lungs for alcohol content. He refused the request, and evidence of his refusal was admitted in evidence without objection. He argues that the introduction of this evidence and a comment by the prosecutor in closing argument upon his refusal is Page 766 ground for reversal under Griffin v. California, 380 U.S. 609. We think general Fifth Amendment principles, rather than the particular holding of Griffin, would be applicable in these circumstances, see Miranda v. Arizona, ante, at 468, n. 37. Since trial here was conducted after our decision in Malloy v. Hogan, supra, making those principles applicable to the States, we think petitioner's contention is foreclosed by his failure to object on this ground to the prosecutor's question and statements.

10. Page 768 See, e.g., Gouled v. United States, 255 U.S. 298; Boyd v. United States, 116 U.S. 616; contra, People v. Thayer, 63 Cal.2d 635, 408 P.2d 108 (1965); State v. Bisaccia, 45 N.J. 504, 213 A.2d 185 (1965); Note, Evidentiary Searches: The Rule and the Reason, 54 Geo. L. J. 593 (1966).

11. Page 768 See, e.g., Silverman v. United States, 365 U.S. 505; Abel v. United States, 362 U.S. 217, 235; United States v. Rabinowitz, 339 U.S. 56.

12. Page 768 California law authorizes a peace officer to arrest "without a warrant . . . [w]henever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed." Cal. Penal Code § 836.3. Although petitioner was ultimately prosecuted for a misdemeanor, Page 769 he was subject to prosecution for the felony since a companion in his car was injured in the accident, which apparently was the result of traffic law violations. Cal. Vehicle Code § 23101. California's test of probable cause follows the federal standard. People v. Cockrell, 63 Cal.2d 659, 408 P.2d 116 (1965).

13. Page 771 "The blood test procedure has become routine in our everyday life. It is a ritual for those going into the military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors." Breithaupt v. Abram, 352 U.S., at 436.

14. Page 771 See Karst, Legislative Facts in Constitutional Litigation, 1960 Sup.Ct. Rev. 75, 88

 

UNITED STATES v. WADE
388 U.S. 218 (1967)

The question here is whether courtroom identifications of an accused at trial are to be excluded from evidence because the accused was exhibited to the witness before trial at a post-indictment lineup conducted for identification perposes without notice to and in the absence of the accused's appointed criminal defense attorney.

The federally insured bank in Eusace, Texas, was robbed. A man with a small strip of tape on each side of his face entered the bank, pointed a pistol at the female cashier and the vice-president, the only persons in the bank at the time, and forced them to fill a pillowcase with the bank's money. The man then drove away with an accomplice who had been waiting in a stolen car outside the bank. Six months later, an indictment was returned against respondent, Wade, and two others for conspiring to rob the bank, and against Wade and accomplice for the robbery itself. Wade was arrested two weeks later, and counsel was appointed to represent him. Fifteen days later an FBI agent, without notice to Wade's criminal defense lawyer, arranged to have the two bank employee's observe a lineup made up of Wade and five or six other prisoners and conducted in a courtroom of the local county courthouse. Each person in the line wore strips of tape such as allegedly worn by the robber and upon direction each said something like "put the money in the bag," the words allegedly uttered by the robber. Both bank employees identified Wade in the lineup as the bank robber.

At trial, the two employees, when asked on direct examination if the robber was in the courtroom, pointed to Wade. The prior lineup identification was then elicited from both employees on cross examination. But the confrontation compelled by the State between the accused and the victim or eyewitnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. The vagaries of eyewitness identification are well known; the annals of criminal law are strife with instances of mistaken identification. The identification of strangers is proverbially untrustworthy. A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witness for pretrial identification. A commentator has observed that"the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor--perhaps it is responsible for more such errors than all other factors combined." Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.

Moreover, "it is a matter of common experience that, once a witness has picked out the accused at a line-up, he is not likely to go back on his word later on, so that in practice the issue of identity may (in the absence of other relevant evidence) for all practical purposes be determined there and then, before the trial."

When factrs have been disclosed in specific cases about the conduct of pretrial confrontations for identification illustrate both the potential for substantial prejudice to the accused at that stage and the need for its revelation at trial. A commentator provides some striking examples: in a Canadian case... the defendant had been picked out of a line-up of six men, of which he was the only Oriental. In other cases, a black haired suspect was placed among a group of ligh haired persons, tall suspects, have been made to stand with short nonsuspects, and, in a case where the perpetrator of the crime was known to be a youth, a suspect under twenty was placed in a line-up with five other persons, all of whom were over forty or over.

Similarly, state reports, in the course of describing prior identifications admitted as evidence of guilt, reveal numerous instances of suggestive procedures, for example, that all in the lineup but the suspect were known to the identifying witness, that the other participants in a lineup were grossly dissimilar in appearance to the suspect, that only the suspect was required to wear distinctive clothing which the culprit allegedly wore.

Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of criminal defense lawyer can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade, the post-indictment lineup was a critical statge of the prosecution at which he was entitled to a criminal defense attorney.

The court then concluded that in-court identifications must be excluded if they follow a lineup at which a defendant is not permitted a defense lawyer, unless the in-court identification has an independent origin.

MINNICK v. MISSISSIPPI
498 U.S. 146 (1990)

To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of criminal defense attorney. Miranda v. Arizona. We reinforce the protections of Miranda in Edwards v. Arizona, which held that once the accused requests criminal defense lawyer, officials may not reinitiate questioning "until defense attorney has been made available" to him. The issue in this case is whether Edwards protection ceases once the suspect has consulted with a criminal defense attorney.

Petitioner Minnick and fellow prisoner Dyess escaped from a county jail in Mississippi and, a day later, broke into a mobile home in search of weapons. In the course of the burglary they were interrupted by the arrival of the trailer's owner, Thomas, accompanied by Lafferty and Lafferty's infant son. Dyess and Minnick used the stolen weapons to kill Thomas and the senior Lafferty. Minnick's story is that Dyess murdered one victim and then forced Minnick to shoot the other. Before the escapees could get away, two young women arrived at the mobile home. They were held at gun point, then bound by hand and foot. Dyess and Minnick fled in Thomas' truck, abandoning the vehicle in New Orleans. The fugitives continued to Mexico, where they fought, and Minnick was arrested in California, on a Mississippi warrant, some four months after the murders.

The confession at issue here resulted from the last interrogation of Minnick while he was held in the California jail, but we first recount the events which preceeded it. Minnick was arrested Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and after the arrest. The day following the arrest, Saturday, two FBI agents came to the jail to interview him. Petitioner testified that he refused to go to the interview, but was told he would "have to go down or else." The FBI report indicates that the agents read petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused to sign a rights waiver form, however, and said he would not answer "very many" questions. Minnick told the agents about the jail break and the flight, and described how Dyess threatened and beat him. Early in the interview, he sobbed "it was my life or theirs," but otherwise he hesitated to tell what happened at the trailer. The agents reminded him he did not have to answer questions without a criminal defense lawyer present. According to the report, "Minnick stated 'come back Monday when I have a defense lawyer,' and stated he would make a more complete statement then with his defense lawyer present."

After the FBI interview, an appointed criminal defense attorney met with the petitioner. Petitioner spoke with the criminal defense lawyer on two or three occasions, though it is not clear from the record whether all of these conferences were in person.

On August 25, Deputy Sheriff Denholm from Mississippi, came to the California jail to question Minnick. Minnick testified that his jailers again told him he would "have to talk" to Denham and that "he could not refuse." Denham advised petitioner of his rights, and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the escape and then proceeded to describe the events at the mobile home.

Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the FBI or other police officers, including Denham. The trial court denied the motion with respect to petitioner's statements to Denham, but suppressed his other statements. Petitioner was convicted on two counts of capital murder and sentenced to death.

On appeal, petitioner argued that the confession to Denham was taken in violation of his rights to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes his right to a criminal defense lawyer "is not subject to further interrogation by authorities until defense attorney has been made available to him. We do not interpret this language to mean, as the Mississippi court thought, that the protection of Edwards terminates once defense lawyer has consulted with the suspect. In context, the requirement that criminal defense attorney be "made available" to the accused refers to more than an opportunity to consult with a criminal defense attorney outside the interrogation room.

In Edwards, we focused on Miranda's instruction that the accused invoke his right to criminal defense lawyer, the "interrogation must cease until a criminal defense attorney is present during custodial interrogations."

In our view, a fair reading of Edwards and subsequent cases demonstrate that we have interpreted the rule to bar police initiated interrogation unless the accused has defense lawyer with him at the time of questioning. Whetever the ambiguities of our earlier cases on this point, interrogation must cease, and officials may not reinitiate interrogation without criminal defense attorney present, whether or not the accused has consulted with his criminal defense attorney.

MIRANDA v. ARIZONA
384 U.S. 436 (1966)

The cases before the court raise questions that go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.

Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law-enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform the accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are are required. Prior to any questioning, the person must be warned that he has the right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with a criminal defense attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with a criminal defense attorney and thereafter consents to be questioned.

The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his feedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant a full and effective warning of his rights at the outset of the interrogation process. In all of the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features--incommunicado interrogation of individuals in a police dominated atmoshere, resulting in self-incriminating statements without full warnings of constitutional rights.

An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today.The difficulty in epicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930's, it is clear that police violence and the "third degree" flourished at that time. In a series of cases decided by the Court long after those studies, the police resulted to physical brutality--beating, hanging, whipping--and to sustained and protracted questioning incommunicado in order to extort confessions.

Again we stress that modern practicr of in-custody interrogation is psychologically rather than physically oriented. As we have stated before "this court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition."

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege against self-incrimination by his interrogators. Therefore, the right to have criminal defense attorney present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individuals's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more "will benefit only the recidivist and the professional." Even preliminary advice given to the accused by his own defense lawyer can be swiftly overcome by the secret interrogation process. Thus, the need for a defense attorney to protect the Fifth Amendment privilege comprehends not merely a right to consult with a criminal defense attorney prior to questioning, but also to defense attorney present during any questioning if the defendant so desires.

The presence of a criminal defense lawyer at the interrogation may serve several significant subsididiary functions as well. If the accused decides to talk to his interrogators, the assistance of a criminal defense attorney can mitigate the dangers of trustworthiness. With a criminal defense lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the criminal defense attorney can testify to it in court. The presence of a criminal defense lawyer can also help guarantee that the accused ives the fully accurate statement to the police and that the statement is rightly reported to the prosecution.

DICKERSON v. UNITED STATES
520 U.S. 428 (2000)

In Miranda v. Arizona, we held that certain warnings must be given before a suspect's statement made during custodial interrogation could be admitted into evidence. In the wake of that decision, Congress laid down a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by ab act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts.

Petitioner Dickerson was indicted for bank robbery, conspiracy to commit bank robbery, and using a firearm in the course of committing a crime of violence. Before trial, Dickerson moved to suppress a statement he had made at a FBI field office, on the grounds that he had not received "Mirandawarnings" before being interrogated. The appeals court held that the admissibility of statements such as Dickerson's turn solely on whether they were made voluntarily, and was satisfied in this case. It then concluded that our decision in Miranda was not a constitutional holding, and that therefore Congress could by statute have the final say on the question of admissibility.

In Miranda, we noted that the advent of modern custodial police interrogation brought with it an increased concern about confessions obtained by coercion. Because custodial police interrogation, by its very nature, isolates and pressures the individual, we stated that "even without employing brutality, the 'third degree' or other specific strategemsd, custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals." We concuded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be "accorded his privilege under the Fifth Amendment not to be compelled to incriminate himself." Accordingly, we laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow." Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether police provided the suspect with four warnings. These warnings (which have come to be known colloquially as Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

The law in this area is clear. This Court has supervisory authority over the federal courts, and we may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals. However, the power to judicially create and enforce nonconstitutional "rules of procedure and evidence for federal courts exists only in the absence of a relevant Act of Congress." Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence or procedure that are not required by the Constitution.

We conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively. Following the rule of stare decisis, we decline to overrule Miranda oueselves.

BERKEMER v. McCARTY
468 U.S. 104 (1985)

Trooper Williams pulled respondent's car over after observing him weaving in and out of traffic on an interstate highway. He asked respondent to get out of the car. Upon noticing that respondent was having difficulty standing, Trooper Williams decided to take him into custocy, but did not inform him of this fact until after asking him whether he had been using intoxicants. Respondent replied that "he had consumed two beers and smoked several joints of marijuana a short time before." Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the jail. At no time did Williams administer Miranda warnings.

Does the roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine enunciated in Miranda?

Respondent urges that it should, on the ground that Miranda by its terms applies whenever "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Petitioner contends that a holding that every detained motorist must be advised of his rights before being questioned would constitute an unwarranted extension of the Miranda doctrine.

It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action" of the driver and the passengers. Under the law of most states, it is a crime either to ignore a policeman's signal to stop one's car or, once having stopped, to drive away without permission. Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. Partly for these reasons, we have long acknowledged that "stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of the Fourth Amendment, even though the purpose of the stop is limited and the resulting detention quite brief."

However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced "to speak where he would not otherwise do so freely," First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed on his way. In this respect, questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.

Second, circumstances associated with the typical stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura ofm authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to ellicit self-incriminating statements and dimishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere surrounding an ordinary traffic stop is substantially less "police dominated" than that surrounding the kinds of interrogation at issue in Miranda itself.

Admittedly, our adherence to the doctrine just recounted will mean that the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody. Either a rule that Miranda applies to all traffic stops or a rule that a suspect need not be advised of his rights until he is formally placed under arrest would provide a clearer, more easily administered line. However, each of these two alternatives has drawbacks that make it unacceptable. The first would substantially impede the enforcement of the Nation's traffic laws--by compelling the police either to take the time to warn all deteined motorists of their constitutional rights or to forgo use of self-incriminating statements made by those motorists--while doing little to protect citizen's Fifth Amendment rights. The second would enable the police to circumvent the constraints on custodial interrogations established by Miranda.

Turning to the case before us, we find nothing in the record that indicates that respondent should have been given Miranda warnings at any point prior to the time Trooper Williams placed him under arrest.For the reasons stated above, we reject the contention that the initial stop of respondent's car by itself, rendered him "in custody."

RHODE ISLAND v. INNIS
446 U. S. 291 (1980)

A taxicab driver who was robbed by a man with a sawed-off shotgun identified Innis from a picture shown him by police. Shotly thereafter, a patrolman spotted Innis on the street, arrested him, and advised him of his Miranda rights. Innis stated that he understood his rights and wanted to speak with a criminal defense lawyer. He was then placed in a squad car to be driven to the police station, accompanied by three officers who were instructed not to question him. While en route to the station, two of the officers engaged in a conversation between themselves concerning the missing shotgun. One of the officers stated that there were "a lot of handicapped children running around in this area" because a schoo for such children was located nearby, and "God forbid one of them might find a weapon with live shells and they might hurt themselves." Innis interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. Upon returning to the scene of the arrest, Innis was again advised of his Miranda rights, replied that he understood his rights, but that he "wanted to get the gun out of the way because of the kids in the area in the school." He then led the police to the shotgun. The shotgun was used as evidence at his trial which resulted in a conviction.

In Miranda v. Arizona, the Court held that, once a defendant in custody asks to speak with a criminal defense attorney, all interrogation must cease until a defense attorney is present.

In the present case, the parties are in agreement that Innis was fully informed of his Miranda rights to a defense attorney when he told Captain Leyden that he wished to consult with a criminal defense lawyer. It is also uncontested that Innis was "in custody" while being transported to the police station.

The issue, therefore, is whether the respondent was "interrogated" by the police officers in violation of the respondent's undisputed right under Miranda to remain silent until he had consulted with a criminal defense attorney. In resolving this issue, we first define the term "interrogation" under Miranda before turning to a consideration of the facts of this case.

It is clear therefore that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. "Interrogation," as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of the definition focuses primarily upon the preceptions of the suspect, rather than the intent of the police. This focus reflects the fact the Miranda safguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforseeable results of their words, or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

DAVIS v. UNITED STATES
512 U.S. 453 (1994)

On October 3, 1988, the body od a sailor. beaten to death with a pool que, was found at the Charleston Navel Base. The investigation gradually focused on Davis. A month later, Davis was interviewed by the Navel Intelligence Service. The agents advised Davis that he was a suspect in the killing, that he was not required to make a statement, that any statement could be used against him at trial by court-martial, and that he was entitled to speak with a criminal defense attorney and have a criminal defense attorney present during questioning. Davis waived his rights to remain silent and to a criminal defense attorney, both orally and in writing. About an hour and a half into the interview, Davis said, "Maybe I should talk to a criminal defense lawyer." When the agents inquired whether he wanted a criminal defense lawyer, he responded that he did not. The interview continued for another hour, at which point Davis said, "I think I want a criminal defense attorney before I say anything else," at which point questioning ceased. A military judge denied Davis's motion to suppress statements made at the interview, holding that his mention of a criminal defense lawyer during the interrogation was not a request for a defense attorney. He was convicted of murder, and, ultimately, the Court of Military Appeals affirmed.

In Edwards v. Arizona, we held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have a criminal defense attorney present during custodial interrogation. In this case, we decide how law enforcement officers should respond when a suspect makes a reference to a defense attorney that is sufficiently clear to invoke the Edwards prohibition on further questioning.The right to a criminal defense attorney as recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it "requires the special protection of the knowing and intelligent waiver standard." If the suspect effectivly waives his right to a defense attorney after receiving Miranda warnings, law enforcement officers are free to question him. But if a suspect requests a defense attorney at anytime during the interview, he is not subject to further questioning until a criminal defense attorney has been made available or the suspect himself reinitiates conversation. This "second layer of prophylaxis for the Miranda right to defense attorney," is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." To that end, we have held that a suspect who has invoked the right to a criminal defense lawyer cannot be questioned regarding any offense unless a criminal defense attorney is actually present. "It remains clear, however, that this prohibition on further questioning--like other aspects of Miranda--is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose."

The applicability of the "rigid" prophylactic rule" of Edwards requires courts to "determine whether the accused actually invoked his right to a defense attorney." To avoid diffulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. Invocation of the Miranda right to a defense attorney "requires at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of a criminal defense attorney." But if a suspect makes a reference to a criminal defense attorney that is ambiguopus or equivical in that a reasonable officer, in light of the circumstances, would have understood only that the suspect might be invoking the right to a defense attorney, our precedents do not require the cessation of questioning. ("The likelihood that a suspect would wish a defense attorney to be present is not the test for application of Edwards").

Rather, the suspect must unambiguously request a criminal defense lawyer. As we have observed, "a statement either is such an assertion of the right to counsel or it is not." Although a suspect need not "speak with the discrimination of an Oxford don," he must articulate his desire to have a criminal defense attorney present sufficiently clearly that a reasonable police officer, in the circumstances, would understand the statement to be a request for a criminal defense attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect.

We decline petitioner's invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to a criminal defense attorney. The rationale underlying Edwards is that police must respect a suspect's wishes regarding his right to have a criminal defense attorney present during custodial interrogation. But when the officers conducting the questioning reasonably do not know whether or not the suspect wants a criminal defense lawyer, a rule requiring the immediate cessation of questioning "would transform Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity," because it would needlessly prevent police from questioning a suspect in the absence of a defense attorney even if the suspect did not wish to have a criminal defense attorney present.

The Edwards rule--questioning must cease if the suspect asks for a criminal defense attorney--provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for a criminal defense attorney, this clarity and ease of apllication would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a criminal defense lawyer even though he hasn't said so, with the threat of suspression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests a criminal defense attorney.

Of course, when a suspect makes an ambiguous or equivocal statement, it will often be good police practice for the interviewing officers to clarify whether or not he actually wants a criminal defense attorney. That was the procedure followed by the NIS agents in this case. Clarifying questions help protect the rights of the suspect by ensuring that he gets a defense attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect's statement regarding a defense attorney. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's statment is not an unambiguous or unequvocal request for a criminal defense attorney, the officers have no obligation to stop questioning him.

MICHIGAN v. JACKSON
475 U.S. 625 (1986)

Jackson was one of four participants in a murder for hire. He was arrested and arraigned on these charges. During the arraignment, Jackson requested that a criminal defense attorney be appointed for him. The police involved in his investigation were present at the arraignment. On the following morning, before Jackson had an opportunity to consult with a criminal defense attorney, two police officers, after advising Jackson of his Miranda rights, questioned him and obtained a statement from him to that he was the person who had shot the victim. Jackson was convicted, over objections to the admission of the confession in evidence. The Michigan Supreme Court ruled that Jackson's statement was improperly obtained in violation of his Sixth Amendment rights and should have been suppressed.

In Edwards v. Arizona, we held that an accused person in custody who has "expressed his desire to deal with the police only through a criminal defense attorney, is not subject to further interrogation by the authorities until a defense attorney has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

The question is not whether respondents had a right to a criminal defense lawyer at their postarraignment, custodial interrogations. The existence of that right is clear. The Sixth Amendment guarantee of the assistance of a defense attorney also provides the right to a criminal defense lawyer at postarraignment interrogations. The arraignment signals "the innitiation of the adversary judicial proceedings" and thus the attachment of the Sixth Amendment, thereafter, government efforts to elicit information from the accused, including interrogation, represent "critical stages" at which the Sixth Amendment applies. The question in these cases is whether respondents validly waived their right to a criminal defense lawyer at the postarraignment custodial interrogations.

After a formal accusation has been made--and a person who had previously been just a "suspect" has become an "accused" within the meaning of the Sixth Amendment--the constitutional right to the assistance of a criminal defense attorney is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cellmate, or the electronic surveillance of conversations with third parties, may violate the defendant's Sixth Amendment right to a criminal defense attorney even though the same methods of investigation might have been permissible before arraignment or indictment.

The state maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect's request for a defense attorney, advice of rights and acquiesence in police-initiated questioning could establish a valid waiver. We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases. Just as written waivers are insufficient to justify police-initiated interrogations after the request for a criminal defense lawyer in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for a criminal defense attorney in a Sixth Amendment analysis.

Edwards is grounded in the understanding that "the assertion of the right to a criminal defense lawyer is a significant event," and that "additional safeguards are necessary when the accused asks for a criminal defense attorney." We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for a criminal defense attorney is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that, if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to a criminal defense attorney, any waiver of the defendant's right to a defense lawyer for that police-initiated interrogation is invalid.

Although the Edwards decision itself rested on Fifth Amendment and concerned a request for a criminal defense attorney made during custodial interrogation, the Michigan Supreme Court correctly perceived that the reasoning of that case applies with even greater force to these cases. Judgment affirmed.

MARYLAND v. BUIE
494 U.S. 325 (1990)

A "protective sweep" is a quick and limited search of a premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person might be hiding. In this case we must decide what level of justification is required by the Fourth and Fourteenth Amendments before police officers, while effecting the arrest of a suspect in his home pursuant to an arrest warrant, may conduct a warrantless protective sweep of all or part of the premises.

On February 3, 1986, two men committed an armed robbery of a Godfather's Pizza restaurant in Prince George County, Maryland. One of the robbers was wearing a red running suit. The same day, Prince George County police obtained arrest warrants for Buie and his suspected accomplice in the robbery, Allen. Buie's house eas placed under surveillance.

On February 5, the police executed the arrest warrant for Buie. They first had a polioce department secretary telephone Buie's house to verify that he was home. The secretary spoke to a female first, then to Buie himself. Six or seven officers proceeded to Buie's house. Once inside, the officers fanned out through the first and second floors. Corporal Rozar announced he would "freeze" the basement so that no one could come up and surprise the officers. With his service revolver drawn, Razor twice shouted into the basement, ordering anyone down there to come out. When a voice asked who was calling, Rozar announced three times: "this is the police, show me your hands." Eventually, a pair of hands appeared around the bottom of the stairwell and Buie emerged from the basement. He was arrestesd, searched, and handcuffed by Rozar. Thereafter, Detective Frolich entered the basement "in case there was someone else" down there. He noticed a red running suit lying in plain view on a stack of clothing and seized it.

The trial court denied Buie's motion to suppress the running suit, stating in part: " the man comes out from the basement, the police don't know how many other people are down there."

It goes without saying that the Fourth Amendment bars only unreasonable searches and seizures. Our cases show that in determining reasonableness, we have balanced the intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Under this test, a search of a house or office is generally not reasonable without a warrant issued on probable cause. There are other contexts, however, where the public interest is such that neither a warrant nor probable cause is required.

The Terry case is most instructive for present purposes. There we held that an on-the-street "frisk" for weapons must be tested by the Fourth Amendment's general proscription against unreasonable searches because such a frisk involves "an entire 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."

The ingrediants to apply the balance struck in Terry and Long are present in this case. Possessing an arrest warrant and probable cause to believe Buie was in his home, the officers were entitled to enter and to search anywhere in the house in which Buie might be found. Once he was found, however, the search for him was over, and there was no longer that particular justification for entering any rooms that had not yet been searched.

That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with or able to gain immediate control of a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which thw suspect is being or has arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the house is as great as, if not greater than, it is in the on-the-street or roadside investigatory encounter.

We should emphasize that such a protective sweep, aimed at protecting the arresting officers, if justified by the circumstances, is nevertheless not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than is necessary to dispel the reasonable suspicion of danger and in any event no longer than it takes to complete the arrest and depart from the premises.

The Fourth Amendment permits a properly limited protective sweep in conjunction with an inhome arrest when the searching officer possesses a reasonable belief on specific and articulable factsa that the area to be swept harbors an individual posing a danger to those on the scene.

DELAWARE v. PROUSE
440 U.S. 648 (1979)

At 7:20 p.m. on November 30, 1976, a New Castle County patrolman in a police cruiser stopped the automobile occupied by Prouse. The patrolman smelled marijuana smoke as he was walking toward the stopped vehicle, and he seized marijuana in plain view on the car floor. Prouse was subsequently indicted for illegal possession of a controlled substance. At a hearing on Prouse's motion to suppress the marijuana seized as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver's license and registration. The patrolman was not acting pursuant to any standards, guidlines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. Characterizing the stop as "routine" the patrolman explained, "I saw the car in the area and wasn't answering any complaints, so I decided to pull them off." The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment.

The State urges these stops are reasonable under the Fourth Amendment because the State's interest in the practice as a means of promoting public safety upon its roads more than outweighs the intrusion entailed. Although the record discloses no statistics concerning the extent of the problem of highway safety, in Delaware or in the Nation as a whole, we are aware of danger to life and property posed by vehicular traffic and the difficulties that even a cautious and experienced driver may encounter. We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.

The question remains, however, whether in the service of those important ends the discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which stops entail. On the record before us, that question must be answered in the negative. Given the alternative mechanisms available, both those in use and those that might be adopted, we are unconvinced that the incremental contribution to highway safety of the random spot check justifies the practice under the Fourth Amendment.

The foremeost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times easch day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained.Furthermore, drivers without license are presumably the less safe drivers whose propensities may well exhibit themselves.

Much the same can be said about the safety aspects of automobiles as distinguished from drivers. Many violations of minimum vehicular safety requirements are observable, and something can be done about them by the observing officer, directly and immediately. Furthermore, in Delaware, as elswhere, vehicles must carry and display current license plates, which themselves evidence that the vehicle is properly registered; and, under Delaware law, to qualify for annual registration a vehicle must pass the annual safety inspection and be properly insured.

The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure--limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable--at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion "would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulable hunches. "This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent."

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusions or that do not involve unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed.

CHIMEL v. CALIFORNIA
395 U.S. 752 (1969)

This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest.

The relevant facts are are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, Californiia, home of Chimel with a warrant authorizing his arrest for a burglary of a coin shop. The officers knocked on the door, identified themselves to Chimel's wife, and asked if they might come inside. She ushered them into the house, where they waited 10 to 15 minutes ubtil Chimel returned home from work. When Chimel entered the house, one of the officers handed him the arrest warrant and asked permission to "look around." Chimel objected, but was advised that "on the basis of the lawful arrest," the officers would nonetheless conduct the search. No search warrant had been issued.

Accompanied by Chimel's wife, the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In some rooms the search was relatively cursory. In the master bedroom and sewing room, however, the officers directed Chimel's wife to open drawers "and to physically contents of the drawers from side to side so that they might view items that would have come from the burglary." After completing the search, they seized numerous items--primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for the search of the arrestee's person and the area "within his immediate control"--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

United State v. Rabinowitz is the decision upon which California primarily relies in the case now before us. In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps bearing forged overprints. On the basis of that information they secured a search warrant for his arrest, which they executed at his one-room business office. At the time of the arrest, the officers "searched the desk, safe, and file cabints in the office for about an hour and a half, and seized 573 stamps with forged overprints. The stamps were admitted into evidence at the defendant's trial, and this court affirmed his conviction, rejecting the contention that the warrantless search had been unlawful. The Court held that the search in its entirety fell within the priciple giving law enforcement authorities "the right 'to search the place where the arrest is made in order to find and seize things connected with the crime.'" The test, said the Court, "is not whether it is reasonable to procure a search warrant, but whether the search was reasonable."

Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search "incident to a lawful arrest" may generally extend to the area that is considered to be in the "possession" or under the "control" of the person arrested. And it was on the basis of that proposition that the California courts upheld the search of the petitioner's entire house in this case. That doctrine, however, at least in the broad sense in which it was applied by the California courts in this case, can withstand neither historical nor rational analysis.

There is no comparable justification, however, for routinely searching any room other than that in which the arrest occurs--or, for that matter, for searching through all the desk drawers or other closed or concealed areas in the room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant.

Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The scope of the search was "unreasonable" under the Fourth and Fourteenth Amendments, and Chimel's conviction cannot stand.

WYOMING v. HOUGHTON
526 U.S. 559 (1999)

In the early mourning hours of july 23, 1995, a Wyoming Highway Patrol officer stopped an automobile for speeding and driving with a faulty brake light. There were three passengers in the front seat of the car: David Young (the driver), his girlfriend, and respondent. While questioning Young, the officer noticed a hypodermic syringe in Young's shirt pocket. He left the occupants under the supervision of two back-up officers as he went to get gloves from his patrol car. Upon his return, he instructed Young to step out of the car and place the syringe on the hood. The officer then asked Young why he had a syringe; with refreshing candor, Young replied that he used it to take drugs.

At this point, the back-up officers ordered the two female passengers out of the car and asked them for identification. Respondent falsely identified herself as "Sandra James" and stated that she did not have any identification. Meanwhile, in light of Young's admission, the officer searched the passenger compartment of the car for contraband. On the back seat, he found a purse, which respondent claimed as hers. He removed from the purse a wallet containing respondent's drivers license, identifying her properly as Sandra K. Houghton. When the officer asked her why she had lied about her name, she replied: "In case things went bad."

Continuing his search of the purse, the officer found a brown pouch and a black wallet-type container. Respondent denied that the former was hers, and claimed ignorance of how it came to be there; it was found to contain drug paraphernalia, and a syringe (which respondent acknowledged was hers) with 10 ccs of methamphetamine--an amount sufficient to support the felony conviction at issue in this case. The officer also found fresh needle-track marks on respondent's arms. He placed her under arrest.

The State of Wyoming charged respondent with felony possession of methamphetamine in a liquid amount greater than three-tenths of a gram. After a hearing, the trial court denied her motion to suppress all evidence obtained from the purse as the fruit of a violation of the Fourth and fourteenth Amendments. The court held that the officer had probable cause to search the car for contraband, and, by extension, any containers therein that could hold such contraband. A jury convicted respondent as charged.

This case presents the question whether police officers violate the Fourth Amendment when they search a passenger's personal belongings inside an automobile that they have probable cause to believe contains contraband.

It is uncontested in the present case that the police officers had probable cause to believe there were illegal drugs in the car. Carroll v. United States, similarly involved the warrantless search of a car that law enforcement officials had probable cause to believe contained contraband--in that case, bootleg liquor.

The Court held that "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant" where probable cause exists.

In Ross, we upheld as reasonable the warrantless search of a paper bag and leather p[ouch found in the trunk of the defendant's car by officers who had probable cause to believe that the trunk contained drugs.

To be sure, there was no passenger in Ross, and it was not claimed that the package in the trunk belonged to anyone other than the driver. Even so, if the rule of law that Ross announced were limited to contents belonging to the driver, or contents other than those belonging to passengers, one would have expected that a substantial limitation to be expressed.

The analytical principle underlying the rule announced in Ross is fully consistent with the balance of our Fourth Amendment jurisprudence. Ross concluded from the historical evidence that the permissible scope of a warrantless car search "is defined by the object of the search and the places in which there is probable cause to believe that it may be found." The same principle is reflected in an earlier case involving the constitutionality of a search warrant directed at premises belonging to one who is not suspected of any crime: "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific 'things' to be searched for and seized are located on the property to which entry is sought."

In sum, neither Ross itself nor the historical evidence it relied upon admits of a distinction among packages or containers based on ownership. When there is probable cause to search for contraband in a car, it is reasonable for police officers--like customs officials in the Founding era--to examine packages and containers without a showing of individualized probable cause for each one. A passenger's personal belongings, just like a driver's belongings or containers attached to the car like a glove compartment, are "in" the car, and the officer has probable cause to search for contraband in the car.

Even if the historical evidence, as described by Ross, were thought to be equivocal, we would find that the balancing of the relative interests weighs decidedly in favor of allowing searches of a passenger's belongings. Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which "travel public thoroughfares," "seldom serve as the repository of personal effects," are subjected to police stop and examination to enforce "pervasive" governmental controls "as an everyday occurrence" and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny.

Whereas the passenger's privacy expectations are, as we have described, considerably diminished, the governmental interests at stake are substantial. Effective law enforcement would be appreciably impaired without the ability to search a passenger's personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. As in all car-search cases, the 'ready mobility" of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained. In addition, a car passenger will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. A criminal might be able to hide contraband in a passenger's belongings as readily as in other containers in the car--perhaps even surrptitiously, without the passenger's knowledge or permission. (This last possibility provided the basis for respondent's defense at trial; she testified that most of the seized contraband must have been placed in her purse by her traveling companions at one or another of various times, including the time she was "half asleep" in the car.)

To require that the investigating officer have positive reason to believe that the passenger and driver were engaged in a common enterprise, or positive reason to believe that the driver had time and occasion to conceal the item in the passenger's belongings, surreptitiously or with friendly permission, is to impose requirements so seldom met that a "passenger's property" rule would dramatically reduce the ability to find and seize contraband and evidence of crime. But once a "passenger's property" exception to car searches became widely known, one would expect passenger-confederates to claim everything as their own. And one would anticipate a bog of litigation--in the form of both civil lawsuits and motions to suppress in criminal trials--involving such questions as whether the officer should have believed a passenger's claim of ownership When balancing the competing interests, our determinations of "reasonableness" under the Fourth Amendment must take account of these practical realities. We think they militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak.

We hold that police officers with probable cause to search a car may inspect passenger's belongings found in the car that are capable of concealing the object of the search.

ARIZONA v. HICKS
480 U.S. 321 (1987)

A bullet was fired through the floor of respondent's apartment, striking and injuring a man in the apartment below. The police arrived and entered respondent's apartment to search for the shooter and weapon. They found and seized three weapons, including a sawed-off rifle. While on the premises, one of the officers noticed some very expensive stereo equipment, which seemed out of place. Suspecting that the equipment was stolen, he turned the stereo around so he could read out the serial numbers to the radio operator. The operator checked the numbers and informed him that the equipment was stolen. The defendant was indicted and convicted of theft. The Arizona Court of Appeals, while conceding that the warrantless entry was justified by the exigent circumstances of the shooting, ruled that turning around the stereo to read the serial numbers resulted in an additional search, unrelated to the exigency, in violation of the Fourth Amendment, requiring that the fruits of this search be suppressed.

In Coolidge v. New Hampshire, we said that in certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment. We granted certiorari in the present case to decide whether this "plain view" doctrine may be invoked when the police have less than probable cause to believe that the item in question is evidence of a crime or is contraband.

As an initial matter, the State argues that Officer Nelson's actions constituted neither a "search" nor a "seizure" within the meaning of the Fourth Amendment. We agree that the mere recording of the serial numbers did not constitute a seizure. It did not "meaningfully interfere" with respondent's possessory interest either the serial numbers or the equipment, and therefore did not amount to a seizure.

Officer Nelson's moving of the equipment, however, did constitute a "search' seperate and apart from the search for the shooter, victims, and weapons that was the lawful objective of his entry into the apartment. Merely inspecting those parts of the turntable that came into view during the latter search would not have constituted an independent search, because it would have produced no additional invasion of respondent's privacy interest. But taking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent's privacy unjustified by the exigent circumstance that validated the entry. This is why the "distinction between 'looking' at a suspicious object in plain view and 'moving' it even a few inches" is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to the respondent--serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turn table.

The remaining question is whether the search was "reasonable" under the Fourth Amendment.

"It is well established that under certain circumstances the police seize evidence in plain view without a warrant. Those circumstances include situations "where the initial intrusion that brings the police within plain view of such evidence is supported by one of the recognized exceptions to the warrant requirement," such as the exigent-circumstances intrusion here. It would be absurd to say that an object could lawfully be seized and taken from the premises, but could not be moved for closer examination. It is clear, therefore, that the search here was valid if the "plain view" doctrine would have sustained a seizure of the equipment.

There is no doubt it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has conceded, however, that he had only a "reasonable suspicion," by which it means something less than probable cause. We now hold that probable cause is required. To say otherwise would be to cut the "plain view" doctrine loose from its theoretical and practical moorings. The theory of that doctrine consisits of extending to non-public places such as the home, where searches and seizures without a warrant are presumptively unreasonable, the police's longstanding authority to make warrantless seizures in public places of such objects as weapons and contraband. And the practical justification for that extension is the desirability of sparing police, whose viewing of the object in the course of a lawful search is as legitimate as it would have been in a public place, the inconvenience and the risk--to themselves or to preservation of the evidence--of going to obtain a warrant. Dispensing with the need for a warrant is worlds apart from permitting a lesser standard of cause for the seizure than a warrant would require, i.e., the standard of probable cause. No reason is apparent why an object should routinely be seizable on lesser grounds, during an unrelated search and seizure, than would have been needed to obtain a warrant for the same object if it had been known to be on the premises.

We choose to adhere to the textual and traditional standard of probable cause.

CALIFORNIA v. HODARI D.
499 U.S. 621 (1991)

A group of youths took off running as two police officers, rounding a corner, came into view. The officers gave chase. When Hodari turned around and saw that one of the officers was about to apprehend him, he tossed away what appeared to be a small rock. A moment later the officer tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was found to be crack cocaine. The California trial court refused to suppress the rock and Hodari was convicted.

The only issue presented is whether, at the time he dropped the drugs, Hodari had been "seized" within the meaning of the Fourth Amendment. If so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted.

We have long understood that the Fourth Amendment's protection against "unreasonable seizures" includes seizure of the person. From the time of the founding to the present, the word "seizure" has meant a "taking possession." For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control.

Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Hodari contends (and we accept as true for purposes of this decision) that Pertoso's pursuit qualified as a "show of authority" calling upon Hodari to halt. The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

The language of the Fourth Amendment, of course, cannot sustain respondent's contention. The word "seizure" readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. ("She seized the purse-snatcher, but he broke out of her grasp.") It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the Law!" at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced--indirectly, as it were--by suggesting that Petroso's uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority.

Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest, followed by submission of the arrestee, constitutes an arrest. There can be no arrest without either touching or submission.

We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones, it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command :Stop!" expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures.

In sum, assuming that Pertoso's pursuit in the present case constituted a "show of authority" enjoining Hodari to halt, since Hodari did not comply with that injunction, he was not seized until he was tackled. The cocaine abandoned while he was running was, in this case, not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.

ILLINOIS v. WARDLOW
528 U.S. 119 (2000)

On September 9, 1995, Officers Nolan and Harvey were working as uniformed officers in the special operations section of the Chicago Police Department. The officers were driving the last car of a four-car caravan converging on an area known for heavy narcotics trafficking in order to investigate drug transactions. The officers were traveling together because they expected to find a crowd of people in the area, including lookouts and customers.

As the caravan passed 4035 West Van Buren, Officer Nolan observed respondent Wardlow standing next to the building holding an opaque bag. Respondent looked in the direction of the officers and fled. Nolan and Harvey turned their car southbound, watched him as he ran through the gangway and an alley, and eventually cornered him on the street. Nolan then exited his car and stopped respondent. He immediately conducted a protective pat-down search for weapons because in his experience it was common for there to be weapons in the near vivinity of narcotics transactions. During the frisk, Officer Nolan squeezed the bag respondent was carrying and felt a heavy, hard object similar to the shape of a gun. The officer then opened the bag and discovered a .38- caliber handgun with five live rounds of ammunition. The officers arrested Wardlow.

An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a "high crime area" among the relevant contextual considerations in a Terry analysis.

In this case, moreover, it was not merely respondent's presence in an area of heavy narcotics trafficking that aroused the officers' suspicion but his unprovoked flight upon noticing the police. Our cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight--whever it occurs--is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such. In reviewing the propriety of an officer's conduct, courts do not have available empirical studies dealing with inferences drawn from suspicious behavior, and we cannot reasonably demand scientific certainty from judges or law enforcement officers where none exists. Thus, the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior. We conclude Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further.

Such a holding is entirely consistent with our decision in Florida v. Royer, where we held that when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. And any "refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure." But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.

Respondent and amici also argue that there are innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity. This fact is undoubtedly true, but does not not establish a violation of the Fourth Amendment. Even in Terry, the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. The officer observed two individuals pacing back and forth in front of a store, peering into the window and peridocally conferring. All of this conduct was by itself lawful, but it also suggested that the individuals were casing the store for a planned robbery. Terry recognized that the officers could detain the individuals to resolve the ambiguity.

In allowing such detentions, Terry accepts the risk that officers may stop innocent people. Indeed, the Fourth Amendment accepts that risk in connection with more drastic police action; persons arrested and detained on probable cause to believe they have committed a crime may turn out to be innocent. The Terry stop is a far more minimal intrusion, simply allowing the officer to briefly investigate further. If the officer does not learn facts rising to the level of probable cause, the individual must be allowed to go on his way. But in this case the officers found respondent in possession of a handgun, and arrested him for violation of an Illinois firearms statute. No question of the propriety of the arrest itself is before us.

FLORIDA V. J.L.
529 U.S. 266 (2000)

The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer's stop and frisk of that person. We hold that it is not.

On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun. So far as the record reveals, there is no audio recording of the tip, and nothing is known about the informant. Sometime after the police received the tip--the record does not say how long--two officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males "just hanging out there." One of the three, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J.L.'s pocket.

J.L., who was at the time of the frisk "10 days shy of his 16th birthday," was charged under state law with carrying a concealed weapon without a license and possessing a firearm while under the age of 18. He moved to suppress the gun as the fruit of an unlawful search, and the trial court granted his motion.

In the instant case, the officers' suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity." As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits "sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop." The question we here confront is whether the tip pointing to J.L. had those indicia of relibility.

In Alabama v. White, the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. Standing alone, the tip would not have justified a Terry stop. Only after police observation showed that the informant had accurately predicted the woman's movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine. Although the Court held that the suspicion in White became reasonable after police surveillance, we regarded the case as borderline. Knowledge about a person's future movements indicates some familiarity with that person's affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband. We accordingly classified White as a "close case."

The tip in the instant case lacked the moderate indicia of reliability presnt in White and essential to the Court's decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant's knowledge or credibility. That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L. If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line.

Florida contends that the tip was reliable because its description of the suspect's visible attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop. The United States as amicus curiae makes a similar argument, proposing that a stop and frisk should be permitted "when (1) an anonymous tip provides a description of a particular person at a particular location illegally carrying a concealed firearm, (2) police promptly verify the pertinent details of the tip except the existence of the firearm, and (3) there are no factors that cast doubt on the reliability of the tip." These contentions misapprehend the reliability needed for a tip to justify a Terry stop.

An accurate description of a subject's readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of the concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Cf.4 W.LaFave, Search and Seizure 9.4(h), p. 213 (3d ed. 1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activirty, which is central in anonymous-tip cases).

Asecond major argument advanced by Florida and the Unoted states as amicus, in essence, that the standard Terry analysis should be modified to license a "firearm exception." Under such an exception, a tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard presearch reliability testing. We decline to adopt this position.

Firearms are dangerous, and extraordinary dangers sometimes justify unusual precautions. Our decisions recognize the serious threat that armed criminals pose to public safety; Terry's rule, which permits protective police searches on the basis of reasonable suspicion rather than demanding that officers meet the higher standard of probable cause, responds to this very concern. But automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms. Several Courts of Appeals have held it per se foreseeable for people carrying significant amounts of illegal drugs to be carrying guns as well. If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain under the above-cited decisions that the police should similarily have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied.

The facts of this case do not require us to speculate about the circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability. We do not say, for example, that a report of a person carrying a bomb need bear the indicia of reliability we demand for a report of a person carrying a firearm before the police can constitutionally conduct a frisk. Nor can we hold that public safety officials in quarters where the reasonable expectation of Fourth Amendment privacy is diminished, such as airports and schools, cannot conduct protective searches on the basis of information insufficient to justify searches elswhere.

Finally, the requirement that an anonymous tip bear standard indicia of reliability in order to justify a stop in no way diminishes a police officer's prerogative, in accord with Terry, to conduct a protective search of a person who has already been legitimately stopped. We speak in today's decision only of cases in which the officer's authority to make the initial stop is at issue. In that context, we hold that an anonymous tip lacking indicia of reliability of the kind contemplated in Adams and White does not justify a stop and frisk whenever and however it alleges the illegal possession of a firearm.

COOLIDGE v. NEW HAMPSHIRE
403 U.S. 443 (1971)

It is well established that under certain circumstances the police may seize evidence in plain view without a warrant. But it is important to keep in mind that, in the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the "plain view" doctrine has been to identify the circumstances in which plain view has a legal significance rather than being simply the normal concomitant of any search, legal or illegal.

An example of the apllicability of the "plain view" doctrine is the situation in which the police have a rrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. Where the initial intrusion that brings the police within plain view of such an article is supported, not by warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate. Thus, the police may inadvertantly come across evidence while in "hot pursuit" of a fleeing suspect. And an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant. Finally, the "plain view" doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertantly comes across incriminating evidence.

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertantly across a piece of evidence incriminating the accused. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.

BRADY v. MARYLAND
373 U.S. 83 (1963)

Petioner and companion, Boblit, were found guilty of murder in the first degree and were sentenced to death. Their trials were seperate, petioner being tried first. At his trial Brady took the stand and admitted his participation in the crime, but he claimed that Boblit did the actual killing. And, in his summation to the jury, Brady's criminal defense attorney conceded that Brady was guilty of murder in the first degree, asking only that the jury return that verdict "without capital punishment." Prior to the trial petioner's defense attorney had requested the prosecution to allow him to examine Boblit's extrajudicial statements. Several of those statements were shown to him; but one dated July 9. 1958, in which Boblit admitted the actual homicide, was withheld by the prosecution and did not come to petitioner's notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed.

Petioner moved the trial court for a new trial based on the newly discovered evidence that had been suppressed by the prosecution. Petioner's appeal from a denial of that motion was dismissed by the Court of Appeals without prejudice to relief under the Maryland Post Conviction Procedures Act. The petion for post-conviction relief was dismissed by the trial court; and on appeal the Court of Appeals held that suppression of the evidence by the prosecution denied petitioner due process of law and remanded the case for a retrial of the question of punishment, not the question of guilt.

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

This principle is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when an accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts." A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.

GIDEON v. WAINWRIGHT
372 U.S. 335 (1963)

Petitioner was charged in Forida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law. Appearing in court without funds and with a criminal defense lawyer, petitioner asked the court to appoint a criminal defense attorney for him, whereupon the following colloquy took place:

THE COURT: Mr. Gideon, I am sorry, but I cannot appoint a defense attorney to represent you in this case. Under the laws of the State of Florida, the only time the court can appoint a criminal defense attorney to represent a defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint criminal defense lawyer to defend you in this case.

THE DEFENDANT: The United States Supreme Court says I am entitled to be represented by defense attorney.

Put to trial before a jury, Gideon conducted his defense, without the help of a criminal defense attorney, as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State's witnesses, presented witnesses in his own criminal defense, declined to testify himself, and made a short argument "emphasizing his innocence to the charge contained in the Iformation filed in the case." The jury returned a verdict of guilty, and petitioner was sentenced to five years in the state prison. Since 1942, when Betts v. Brady, was decided by a divided court, the problem of a defendant's federal constitutional right to a defense attorney in a state court has been a continuing source of controversyn mand litigation in both state and federal courts. Since Gideon was proceeding in forma pauperis, we appointed defense attorney to represent him and requested both sides to discuss in their briefs and oral arguments the following: "Should this court's holding in Betts v. Brady, be reconsidered?

Governments both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Criminal lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best criminal defense attorneys they can get to prepare and present their criminal defenses. That government hires criminal lawyers to prosecute and defendants who have the money to hire criminal defense attorneys to defend are the strongest indications of the widespread belief that criminal attorneys in criminal courts are necessities, not luxuries. The right of one charged with crime to criminal lawyers may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substative safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This nobel idea cannot be realized if the poor man charged with a crime has to face his accusers without a criminal defense attorney to represent him. The court in Betts v. Brady departed from sound wisdom upon which the court's holding in Powell v. Alabama rested. Florida, supported by two other states, has asked that Betts v. Brady be left intact. Twent-two states, as friends of the court, argue that Betts was "an anachronism when handed down" and that it should now be overruled. We agree.

ARIZONA v. YOUNGBLOOD
488 U.S. 51 (1988)

The victim, a 10-year-old boy, was abducted, molested, and sodomized by a middle-aged man. After the assault, he was taken to a hospital where a physician used a swab from a "sexual assault kit" to collect samples of the perpetrator's semen. The sample taken was insufficient for adequate testing. The police failed to refrigerate the boy's clothing, which also contained semen. As a result, police crimimologists were unable to obtain information about the identity of the boy's assailant. The boy identified the respondent. Defense experts testified at the trial that respondent might have been completely exonerated by timely performance of tests on properly preserved semen samples. Respondent was convicted of child molestation, sexual assault, and kidnapping.The Arizona Court of Appeals reversed the conviction on the ground that the State had breached a constitutional duty to preserve the semen samples from the victim's body and clothing.

Decision of this case requires us to again consider "what might loosely be called the area of constitutionally-guaranteed access to evidence." In Brady v. Maryland, we held "that the suppression by the prosecution of evidence favorable to the acussed upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." In United States v. Agurs, we held that the prosecution had a duty to disclose some evidence of this description even though no requests were made for it, but at the same time we rejected the notion that a "prosecutor has a constitutional duty rountinely to deliver his entire file to criminal defense attorney."

There is no question but that the State complied with Brady and Agurs here. The State disclosed relevant police reports to respondent, which contained information about the existence of the swab and clothing, and the boy's examination at the hospital. The State provided respondent's expert with the laboratory reports and notes prepared by the police criminologist, and respondent's expert had access to the swab and to the clothing.

If respondent is to prevail on federal constitutional grounds, then, it must be because of some constitutional duty over and above that imposed by cases such as Brady and Agurs. Our most recent decision in this area of the law, California v. Trombetta, arose out of a drunk driving (DUI) prosecution in which the State had introduced test results indicating the concentration of alcohol in the blood ot two motorists. The defendants sought to suppress the test results on the ground that the State had failed to preserve the breath samples used in the blood test. We rejected this argument for several reasons: first, "the officers here were acting in 'good faith and in accord with their normal practice'"; second, in the light of the procedures actually used the chances that the preserved samples would have exculpated the defendants were slim; and, third, even if the samples might have shown inaccuracy in the tests, the defendants had "alternative means of demonstrating their innocence." In the present case, the likelihood that the preserved materials would have enabled the defendant to exonerate himself appears to be greater than it was in Trombetta, but here, unlike in Trombetta, the State did not attempt to make any use of the materials in its own case in chief.

The Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence. But we think the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the result of which might have exonerated the defendant. Part of the reason for the difference in treatment is found in the observation made by the court in Trombetta, that "whenever potentially exculpatory eivdence is permanently lost, courts face the treacherous task of devining the import of materials whose contents are unknown and, very often, disputed." Part of it stems from our unwillingness to read the "fundamntal fairness" requirement of the Due Process Clause as imposing on the police an undifferentiated and absolute duty to retain and preserve all material that might be of conceivable evidentiary significance in a particular prosecution. We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police's obligation tp preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law of law.

In this case, the police collected the rectal swab and clothing on the night of the crime: respondent was not taken into custody until six weeks later. The failure of the police to refrigerate the clothing and to perform tests on the semen samples can at worst be described as negligent. None of this information was concealed from respondent at trial, and the evidence--such as it was--was made available to respondent's expert who declined to perform any tests on the samples. The Arizona Court of Appeals noted in its opinion--and we agree--that there was no suggestion of bad faith on the part of the police. It follows, therefore, from what we have said, that there was no violation of the Due Process Clause.

The Arizona Court of Appeals also referred somewhat obliquely to the State's "inability to quantitatively test" certain semen samples with the newer P-30 test. If the court meant by this statement that the Due Process Clause is violated when the police fail to use a particular investigatory tool, we strongly disagree. The situation here is no different than a prosecution for drunk driving that rests on police observation alone; the defendant is free to argue to the finder of fact that a breathalyzer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests.

STOVAL v. DENNO
388 U.S. 293 (1967)

Defendant was arrested on suspicion of murder. The only eyewitness to the murder had been critically injured in the same attack and was about to undergo emergency surgery--she could not be taken to the station house for a line-up. Accordingly, police btought the defendant to her bedside where she identified him as the murderer.

We turn now to the question whether the confrontation conducted in this case was so unnecessarily suggestive and conducive to irreparable mistaken indentification that he was denied due process of law. This is a recognized ground of attack upon a conviction independent of any right to criminal defense attorney claim. The practice of showing suspects singly to persons for the purpose of identification, and not as part of a line-up, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative. The Court of Appeals stated,:

Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words. 'He is not the man' could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behrendt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with jnowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question. The judgment is affirmed.

PENNSYLVANIA v. MUNIZ
496 U.S. 582 (1990)

A patrol officer, spotting Muniz's parked car on the shoulder of a highway, inquired whether he needed assistance, Muniz replied that he had stopped the car so he could urinate. The officer smelled alcohol on Miniz's breath and observed that Muniz's eyes were glazed and bloodshot and his face was flushed. The officer then directed Muniz to remain parked until his condition improved, and Muniz gave assurances that he would do so, but immediately drove off. After pursuing Muniz down the highway and pulling him over, the officer, without advising Muniz of his Mitanda rights, asked him to perform two standard field sobriety tests: a "walk and turn" teat and a "one legstand" test. Muniz performed these tests poorly and informed the officer that he had failed the tests because he had been drinking.

Muniz was taken to a booking center where, as was the routine practice, he was told that his actions and voice would be videotaped. He then answered seven questions regarding his name, address, height, weight, eye color, date of birth, and current age, stumbling over two responses. The officer then asked Muniz to take a breathalyzer teat and explained that under the law his refusal to take the test would result in automatic suspension of his driver's license for one year. Muniz asked a number of questions about the law and then, commenting about his inebriated state, refused to take the breath test. At this point, Muniz was for the first time advised of his Miranda rights. The video and audio portions of the tape were admitted at trial over Muniz's objection that the evidence was procured in violation of his Fifth Amendment prililege against self-incrimination. Muniz was convicted and appealed.

We must decide in this case whether various incriminating utterances of a drunken-driving (DUI) suspect, made while performing a series of sobriety tests, constitute testimonial responses to custodial interrogation for purposes of the Fifth Amendment.

The Self-Incrimination Clause of the Fifth Amendment provides that no "person shall be compelled in any criminal case to be a witness against himself," Although the text does not delineate the ways in which a person might be made a "witness against himself, we have long held that the privilege does not protect a suspect from being compelled by the State to produce "real or physical evidence." Rather, the privilege "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." In order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a 'witness' against himself."

Because Muniz was not advised of his Miranda rights until after the videotaped proceedings at the booking center were completed, any verbal statements that were both testimonial in nature and elicited during custodial interrogation should have been supressed. We focus first on Muniz's responses to the initial informational questions.

In the initial phase of the recorded proceedings, Officer Hosterman asked Muniz his name, address, height, weight, eye color, date of birth, current age, and the date of his sixth birthday. Both the delivery and content of Muniz's answers were incriminationg. As the state court found, "Muniz's videotaped responses certainly led the finder of fact to infer that his confusion and failure to speak clearly indicated a state of drunkenness that prohibited him from safely operating his vehicle." The Commonwealth argues, however, that admission of Muniz's statement regarding his sixth birthday was not "testimonial" and his answers to the prior questions were not elicited by custodial interrogation. We consider these arguments in turn.

We agree with the Commonwealth's contention that Muniz's answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to "the lack of muscular coordination of his tongue and mouth," is not itself a testimonial component of Muniz's responses to Officer Hosterman's introductory questions. In Schmerber v. California, we drew a distinction between "testimonial" and "real or physical evidence" for purposes of the privilege against self-incrimination. We noted that in Holt v. United States, Justice Holmes had written for the court that "'the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.'" We also acknowledged that "both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Embracing this view of the privilege's contours, we held that "the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." Using this "helpful framework for analysis," we held that a person suspected of driving while intoxicated (DUI) could be forced to to provide a blood sample, because that sample was "real or physical" evidence outside the scope of the privilege and the sample was obtained in a manner by which "petitioner's testimonial capacities were in no way inplicated."

We have since applied the distinction between "real or physical" and "testimonial" evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. In United States v. Wade, we held that a suspect could be compelled to participate in a line-up and to repeat a phrase provided by the police so that witnesses could view him and listen to his voice. We explained that requiring his presence and speech at a line-up reflected "compulsion of the accused to exhibit his physical characteristics, not compulsion to disclose any knowledge he might have." In Gilbert v. California, we held that a suspect could be compelled to provide a handwriting exemplar, explaining that such an exemplar, "in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside the privilege's protection." And in United States v. Dionisio, we held that suspects could be compelled to read a transcript in order to provide a voice exemplar, explaining that the "voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said."

We disagree with the Commonwealth's contention that Officer Hosterman's first seven questions regarding Muniz's name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we defined the term in Innis, merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the Innis test focuses primarily upon "the perspective of the suspect." We agree however, that Muniz's answers to these first seven questions are nonetheless admissible because the questions fall within a "routine booking question" exception which exempts from Miranda's coverage questions to secure the "biographical data necessary to complete booking or pretrial services.'" The state court found that the first seven questions asked at the booking center fall outside the protections of Miranda and the answers thereto need not be suppressed.

We conclude that Miranda does not require suppression of the statements Muniz made when asked to submit to a Brearhalyzer examination. Officer Deyo read Muniz a prepared script explaining how the test worked, the nature of Pennsylvania's Implied Consent Law, and the legal consequences that would ensue should he refuse. Officer Deyo then asked Muniz whether he understood the nature of the test and the law and whether he would like to submit to the test. Muniz asked Officer Deyo several questions concerning the legal consequences of refusal, which Deyo answered directly, and Muniz then commented upon his state of inebriation. After offering to take the test only after waiting a couple hours or drinking some water, Muniz ultimately refused.

We believe that Muniz's statements were not prompted by an interrogation within the meaning of Miranda warnings does not require sippression of these statements at trial. As did Officer Hosterman when administering the three physical sobriety tests, Officer Deyo carefully limited her role to providing Muniz with relevant information about the Breathalyzer test and the Implied Consent Law. She questioned Muniz only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily "attendant to" the legitimate police procedure, and were not likely to be perceived as calling for any incriminating response.

Accordingly, the court's judgment reversing Muniz's conviction is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

ARIZONA v. FULMINANTE
499 u.s. 279 (1991)

Fulminante was suspected of molesting and murdering a child in Arizona. While he was imprisioned in Florida on an unrelated offense, he shared a cell with Sarivola, who unbeknownst to him was an FBI informant. Sarivola made repeated attempts to influence the defendant to confess to the murder, but the defendant repeatedly denied any involvement. Word of the heinous murder spread within the jail community and other inmates began to threaten Fulminante. Sarivola told Fulminante that he could protect him, but that Fulminante would first have to tell him the truth about the murder. Fulminante then admitted to killing the child. Arizona tried Filminante for murder and the confession was offered into evidence.

We deal first with the state's contention that the court below erred in holding Fulminante's confession to have been coerced. The Arizona Supreme Court stated that a "determination regarding the voluntariness of a confession must be viewed in a totality of the circumstances," and under that standard plainly found that Fulminante's statement to sarivola had been coerced.

In applying the totality of the circumstances test to determine that the confession to Sarivola was coerced, the Arizona Supreme Court focused on a number of relevant facts. First, the court noted that "because Fulminante was an alleged child murderer, he was in danger of physical harm at the hands of other inmates." In addition Sarivola was aware that Fulminante had been receiving "'rough treatment from the guys.'" Using his knowledge of these threats, Sarivola offered to protect Fulminante in exchange for a confession to the murder, and 'in response to Sarivola's offer of protection, Fulminante confessed." Agreeing with Fulminante that "Sarivola's promise was 'extremely coercive,'" the Arizona court declared: "The confession was obtained as a direct result of extreme coercion and was tendered in the belief that the defendant's life was in jeopardy if he did not confess. This is a true coerced confession in every sense of the word."

Although the question is a close one, we agree with the Arizona Supreme Court's conclusion that Fulminante's confession was coerced. The Arizona Supreme Court found a credible threat of physical violence unless Fulminante confessed. Our cases have made clear that a finding of coercion need not depend upon actual violence by a government agent; a credible threat is sufficient. As we have said, "coercion can be mental as well as physical, and the blood of the accused is not the only hallmark of an unconstitutional inquisition." As in Payne, where the court found that a confession was coerced because the interrogating police officer had promised that if the accused confessed, the officer would protect the accused from an angry mob outside the jailhouse door, so too here, the Arizona Supreme Court found that it was fear of physical violence, absent protection from his friend (and government agent) Sarivola which motivated Fulminante to confess. Accepting the Arizona court's finding, permissible on this record, that there was a credible threat of physical violence, we agree with it's conclusion that Fulminante's will was overborne in such a way as to render his confession the product of coercion.

BENTON v. MARYLAND, 395 U.S. 784 (1969)

In August 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny. The jury found petitioner not guilty of larceny but convicted him on the burglary count. He was sentenced to 10 years in prison. Shortly after his notice of appeal was filed in the Maryland Court of Appeals, that court handed down its decision in the case of Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. As a result of this decision, petitioner's case was remanded to the trial court. Page 786 Because both the grand and petit juries in petitioner's case had been selected under the invalid constitutional provision, petitioner was given the option of demanding re-indictment and retrial. He chose to have his conviction set aside, and a new indictment and new trial followed. At this second trial, petitioner was again charged with both larceny and burglary. Petitioner objected to retrial on the larceny count, arguing that because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. The trial judge denied petitioner's motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary. This time the jury found petitioner guilty of both offenses, and the judge sentenced him to 15 years on the burglary count[fn1] and 5 years for larceny, the sentences to run concurrently. On appeal to the newly created Maryland Court of Special Appeals, petitioner's double jeopardy claim was rejected on the merits. The Court of Appeals denied discretionary review.

On the last day of last Term, we granted certiorari, 392 U.S. 925 (1968), but limited the writ to the consideration of two issues:

1. Is the double jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment?
2. If so, was the petitioner `twice put in jeopardy' in this case? Page 787

Does the `concurrent sentence doctrine,' enunciated in Hirabayashi v. United States, 320 U.S. 81, 105, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U.S. 629, 633, n. 2, Peyton v. Rowe, 391 U.S. 54, Carafas v. LaVallee, 391 U.S. 234, 237-238, and Sibron v. New York, 392 U.S. 40, 50-58?"

The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument.

After consideration of all the questions before us, we find no bar to our decision of the double jeopardy issue. On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment, and we reverse petitioner's conviction for larceny.