Simmons v. United States, No. 55

CourtUnited States Supreme Court
Writing for the CourtHARLAN
Citation88 S.Ct. 967,390 U.S. 377,19 L.Ed.2d 1247
PartiesThomas Earl SIMMONS et al., Petitioners, v. UNITED STATES
Docket NumberNo. 55
Decision Date18 March 1968

390 U.S. 377
88 S.Ct. 967
19 L.Ed.2d 1247
Thomas Earl SIMMONS et al., Petitioners,

v.

UNITED STATES.

No. 55.
Argued Jan. 15, 1968.
Decided March 18, 1968.

[Syllabus from pages 377-379 intentionally omitted]

Page 379

Raymond J. Smith for petitioners.

Sol. Gen. Erwin N. Griswold, for respondent.

Mr. Justice HARLAN delivered the opinion of the Court.

This case presents issues arising out of the petitioners' trial and conviction in the United States District Court for the Northern District of Illinois for the armed robbery of a federally insured savings and loan association.

The evidence at trial showed that at about 1:45 p.m.

Page 380

on February 27, 1964, two men entered a Chicago savings and loan association. One of them pointed a gun at a teller and ordered her to put money into a sack which the gunman supplied. The men remained in the bank about five minutes. After they left, a bank employee rushed to the street and saw one of the men sitting on the passenger side of a departing white 1960 Thunderbird automobile with a large scrape on the right door. Within an hour police located in the vicinity a car matching this description. They discovered that it belonged to a Mrs. Rey, sister-in-law of petitioner Simmons. She told the police that she had loaned the car for the afternoon to her brother, William Andrews.

At about 5:15 p.m. the same day, two FBI agents came to the house of Mrs. Mahon, Andrews' mother, about half a block from the place where the car was then parked.1 The agents had no warrant, and at trial it was disputed whether Mrs. Mahon gave them permission to search the house. They did search, and in the basement they found two suitcases, of which Mrs. Mahon disclaimed any knowledge. One suitcase contained, among other items, a gun holster, a sack similar to the one used in the robbery, and several coin cards and bill wrappers from the bank which had been robbed.

The following morning the FBI obtained from another of Andrews' sisters some snapshots of Andrews and of petitioner Simmons, who was said by the sister to have been with Andrews the previous afternoon. These snapshots were shown to the five bank employees who had witnessed the robbery. Each witness identified pictures of Simmons as representing one of the robbers. A week or two later, three of these employees identified photo-

Page 381

graphs of petitioner Garrett as depicting the other robber, the other two witnesses stating that they did not have a clear view of the second robber.

The petitioners, together with William Andrews, subsequently were indicted and tried for the robbery, as indicated. Just prior to the trial, Garrett moved to suppress the Government's exhibit consisting of the suitcase containing the incriminating items. In order to establish his standing so to move, Garrett testified that, although he could not identify the suitcase with certainty, it was similar to one he had owned, and that he was the owner of clothing found inside the suitcase. The District Court denied the motion to suppress. Garrett's testimony at the 'suppression' hearing was admitted against him at trial.

During the trial, all five bank employee witnesses identified Simmons as one of the robbers. Three of them identified Garrett as the second robber, the other two testifying that they did not get a good look at the second robber. The District Court denied the petitioners' request under 18 U.S.C. § 3500 (the so-called Jencks Act) for production of the photographs which had been shown to the witnesses before trial.

The jury found Simmons and Garrett, as well as Andrews, guilty as charged. On appeal, the Court of Appeals for the Seventh Circuit affirmed as to Simmons and Garrett, but reversed the conviction of Andrews on the ground that there was insufficient evidence to connect him with the robbery. 371 F.2d 296.

We granted certiorari as to Simmons and Garrett, 388 U.S. 906, 87 S.Ct. 2108, 18 L.Ed.2d 1345, to consider the following claims. First, Simmons asserts that his pretrial identification (by means of photographs was in the circumstances so unnecessarily suggestive and conducive to misidentification as to deny him due process of law, or at least to require reversal of his conviction in the exercise of our supervisory power

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over the lower federal courts. Second, both petitioners contend that the District Court erred in refusing defense requests for production under 18 U.S.C. § 3500 of the pictures of the petitioners which were shown to eyewitnesses prior to trial. Third, Garrett urges that his constitutional rights were violated when testimony given by him in support of his 'suppression' motion was admitted against him at trial. For reasons which follow, we affirm the judgment of the Court of Appeals as to Simmons, but reverse as to Garrett.

I.

The facts as to the identification claim are these. As has been noted previously, FBI agents on the day following the robbery obtained from Andrews' sister a number of snapshots of Andrews and Simmons. There seem to have been at least six of these pictures, consisting mostly of group photographs of Andrews, Simmons, and others. Later the same day, these were shown to the five bank employees who had witnessed the robbery at their place of work, the photographs being exhibited to each employee separately. Each of the five employees identified Simmons from the photographs. At later dates, some of these witnesses were again interviewed by the FBI and shown indeterminate numbers of pictures. Again, all identified Simmons. At trial, the Government did not introduce any of the photographs, but relied upon in-court identification by the five eyewitnesses, each of whom swore that Simmons was one of the robbers.

In support of his argument, Simmons looks to last Term's 'lineup' decisions—United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178—in which this Court first departed from the rule that the manner of an extra-judicial identification affects only the weight, not the admissibility, of identification testimony at trial. The rationale of those cases was that an

Page 383

accused is entitled to counsel at any 'critical stage of the prosecution,' and that a post-indictment lineup is such a 'critical stage.' See 388 U.S., at 236—237, 87 S.Ct., at 1937 1938. Simmons, however, does not contend that he was entitled to counsel at the time the pictures were shown to the witnesses. Rather, he asserts simply that in the circumstances the identification procedure was so unduly prejudicial as fatally to taint his conviction. This is a claim which must be evaluated in light of the totality of surrounding circumstances. See Stovall v. Denno, 388 U.S. 293, at 302, 87 S.Ct. 1967, at 1972, 18 L.Ed.2d 1199; Palmer v. Peyton, 4 Cir., 359 F.2d 199. Viewed in that context, we find the claim untenable.

It must be recognized that improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals. A witness may have obtained only a brief glimpse of a criminal, or may have seen him under poor conditions. Even if the police subsequently follow the most correct photographic identification procedures and show him the pictures of a number of individuals without indicating whom they suspect, there is some danger that the witness may make an incorrect identification. This danger will be increased if the police display to the witness only the picture of a single individual who generally resembles the person he saw, or if they show him the pictures of several persons among which the photograph of a single such individual recurs or is in some way emphasized.2 The chance of misidentification is also heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime.3 Regardless of how the initial misidentification comes about, the witness thereafter is apt to retain in his memory the image of the photograph rather than of the person actu-

Page 384

ally seen, reducing the trustworthiness of subsequent lineup or courtroom identification.4

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301—302, 87 S.Ct. 1967, 1972—1973, and with decisions of other courts on the question of identification by photograph.5

Applying the standard to this case, we conclude that petitioner Simmons' claim on this score must fail. In the first place, it is not suggested that it was unnecessary for the FBI to resort to photographic identification in this instance. A serious felony had been committed. The perpetrators were still at large. The inconclusive clues which law enforcement officials possessed led to

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Andrews and Simmons. It was essential for the FBI agents swiftly to determine whether they...

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6572 practice notes
  • U.S. v. Miller, No. 78-1093
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 15, 1978
    ...the right he places in balance here is different from the Fifth and Fourth Amendment rights held in balance in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (Fifth Amendment requires exclusion of testimony at suppression hearing to establish standing to raise ......
  • U.S. v. Gomez-Vega, Criminal No. 04-420 (CCC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 16, 2007
    ...on the question of guilt or innocence." United States v. García-Rosa, 876 F.2d 209, 219 (1st Cir.1989) (citing Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968)), Thus, a defendant should have no prejudicial consequence in admitting ownership of the drug......
  • United States v. Conway, No. 17369
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 19, 1969
    ...identification procedure violated due process must be evaluated in light of the totality of the circumstances. Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. 1967. There is nothing intrinsically unconsti......
  • U.S. v. Gray, No. 05-4397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 2, 2007
    ...was infringed by [a] search." Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (quoting Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). A person invoking the protections of the Fourth Amendment must have a legitimate expectation o......
  • Request a trial to view additional results
6567 cases
  • U.S. v. Miller, No. 78-1093
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 15, 1978
    ...the right he places in balance here is different from the Fifth and Fourth Amendment rights held in balance in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (Fifth Amendment requires exclusion of testimony at suppression hearing to establish standing to raise ......
  • U.S. v. Gomez-Vega, Criminal No. 04-420 (CCC).
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • October 16, 2007
    ...on the question of guilt or innocence." United States v. García-Rosa, 876 F.2d 209, 219 (1st Cir.1989) (citing Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968)), Thus, a defendant should have no prejudicial consequence in admitting ownership of the drug......
  • United States v. Conway, No. 17369
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • August 19, 1969
    ...identification procedure violated due process must be evaluated in light of the totality of the circumstances. Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, supra, 388 U.S. at 302, 87 S.Ct. 1967. There is nothing intrinsically unconsti......
  • U.S. v. Gray, No. 05-4397.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 2, 2007
    ...was infringed by [a] search." Rakas v. Illinois, 439 U.S. 128, 138, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (quoting Simmons v. United States, 390 U.S. 377, 389, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)). A person invoking the protections of the Fourth Amendment must have a legitimate expectation o......
  • Request a trial to view additional results

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