Davis v. Mississippi Brief for Petitioner

    IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968

No. 645

John D avis,

—v.—

M ississippi.

Petitioner,

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

BRIEF FOR PETITIONER

Jack Greenberg 
M ichael M eltsner 
M elvyn Zarr

10 Columbus Circle 
New York, N. Y. 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Jack Y oung

115y2 North Farish Street 
Jackson, Miss. 39201

R euben V. A nderson

538% North Farish Street 
Jackson, Miss. 39202

Attorneys for Petitioner



I N D E X
SUBJECT INDEX

Opinion Below’ ............. - ...................
Jurisdiction .......................................
Constitutional Provisions Involved

Question Presented ..........-....... -.....
Statement of the Case ................. -

Page

1
1
2
2
2

A rgument :
Petitioner’s Fingerprints Were the Product of 
His Illegal Arrest and Were Introduced Into 
M E T *  His Criminal Trial in V.olahon of 
the Fourth and Fourteenth Amendments .........
A. Petitioner Was Illegally Arrested ..............—

Petitioner’s Fingerprints, Having Been II- 
legdUj Obtained, Should Have Been Excluded 
From Evidence at His Criminal Trial......— -

Conclusion

7
7

12

17

T able of Cases

B ed  v. Ohio, 379 U.S 89 (1964) —
Bumper v. North C«rohn«, 39l  F.S 543 (196 )
Bynum v. United States, 262 F.2d 46o (D.C. C . ^  ^

1958) ...................................................................  ’
Camara v. Municipal Court,,387 U.S. 5231 (1967)
Carter v. United States, 314 F.2d 086 (oth C .

1963) ...................................................................
11

! t
I



Page

Draper v. United States, 358 U.S. 307 (1959) .... H  
Henry v. United States, 361 U.S. 98 (1959) ....... 8,10
Lankford v. Gelston, 364 F.2d 197 (4th Cir.

1966) .................................................... ............... lb ’
Linkletter v. Walker, 381 U.S.'618 (196o) ....... 13
Manuel v.. United States, 355 F.2d 344 (5th Cir.

1966) ............. , ............................................1C
Mapp v. Ohio, 367 U.S. 643 (1961) .......- .......13,16,18
McCray v. Illinois, 386 U.S. 300 (1967) ..............  H
Schmerber v. California, 384 U.S. 757 (1966) .... 13,16
Sibron v. New York, 392 U.S. 40 (1968) - - - - - - -  8,14
Staples v. United States, 320 F.2d 8l7 (5th Cir.

1963) ............................................- .....................  10
Terry v. Ohio, 392 U.S. 1 (1968) ......................~~ 12>13
Warden v. Hayden, 387 U.S. 294 (1967) ........... 14
Wong Sun v. United States, 371 U.S. 471 

(1963) .................................................................  12’ 14

INDEX

Other A uthorities

LaFave, Arrest—The Decision to Take a Suspect
Into Custody (1965) .........................................--------

Packer, The Limits of the Criminal Sanction (1968) 
President’s Commission on Law Enforcement and 

the Administration of Justice, Task Force Repoit, 
The Police ......- ..................................................... —-



IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968

No. 645

John Davis,

—v.—

M is s is s ip p i .

Petitioner,

o n  WRIT OF
CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI

b r ie f  f o r  p e t i t io n e r

Opinion Below

The opinion of the Supreme Court of Mississippi is re- 
ported a t —  M is ,— , 204 So.2d 270 (1967).

Jurisdiction

Jurisdiction of this Court is based upon 28 U-S'C^ 125‘ 
(3), petitioner having asserted below and asserting 
the deprivation of rights, privileges, and immumti 
secured by the Constitution of the United States.

The judgment of the Supreme Court of Mississippi was
entered November 6, 1967 (A. 65), and sug­
gestion of error was overruled December 11, 1967 (A. 68).



*

Petitioner’s timely petition for writ of certiorari was filed 
March 7, 1968, and granted October 14, 1968 (A. 69).

Constitutional Provisions Involved

This case involves the Fourth Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.

Question Presented

Whether the introduction into evidence at petitioner’s 
criminal trial of his fingerprints, taken as a result of peti­
tioner’s illegal arrest, violated petitioner’s rights under 
the Fourth and Fourteenth Amendments?

Statement of the Case

On December 3, 1965, petitioner John Davis a 14 year-old 
Negro boy living with his parents in Meridian, Mississippi 
was one of some 65 to 70 Negro males taken into custody 
by the Meridian police for questioning in connection with 
a complaint of rape by an elderly white woman (A. 6-7, 
9-11 )J The police had neither sought nor obtained a war­
rant for his arr?st (A. 6-7, 10). Nor is there any indica­
tion as to what cause, if any, led the police to include peti­
tioner in their dragnet—beyond the fact that the woman 
stated that her assailant was a Negro boy of uncertain 
description (A. 57; 204 So.2d at 274). Petitioner was taken 
to police headquarters, questioned, fingerprinted and re- 1

2

1 The record does not make clear whether some of the 65 to 70 
Negro males taken into custody were actually taken into custody 
on days immediately following December 3rd.



3

leased (A. 6-7, 47). These fingerprints were never analyzed 
or introduced into evidence (A. 46-48).

Between December 3rd and 7th, petitioner was taken into 
custody—in the words of the juvenile officer—“ about 4 or 
5 times . . .  in an attempt to get leads on boys that were 
working up in this section where the crime occurred” (A. 
10-11).2 Petitioner was questioned sometimes at police 
headquarters, sometimes in a police car (A. 58; 204 So.2d 
at 274); on several occasions petitioner was brought to the 
hospital and exhibited to the woman “ for a gauge to go by 
on size and color” (A. 11). On none of these occasions was 
the woman able to positively identify petitioner as her 
assailant (A. 51). None of these 4 or 5 detentions was 
effected pursuant to a warrant (A. 11), nor was petitioner 
afforded counsel or an opportunity to have his parents 
present (A. 8-11).

Petitioner was again taken into custody without a war­
rant on December 12, 1965; this time he was driven to 
Jackson, a distance of 90 miles, and incarcerated overnight 
in the Jackson city jail (A. 8, 10). The following day, he 
was given a lie detector test in the absence of counsel and 
parents (A. 12-13).3 Thereafter, petitioner signed a state­
ment,4 and was returned to jail in Meridian (A. 13, 48).

2 The court below found that “ a substantial portion of the in­
terrogation dealt with an effort on the part of the officers to gam 
information as to others who might have committed the crime 
(A. 58; 204 So.2d at 274).

3 The juvenile officer testified to the circumstances leading up to 
the giving of the lie detector test as follows (A . 12) .

0  At whose instance or request was this done?
A. I discussed it with his mother, and she seemed to feel like 

we were worrying him and she suggested that we take him and 
get it over with, was her wmrds.

4 The statement itself wras not introduced into evidence, but came 
before, the jury when the complaining witness testified he con­
fessed it all” (,A. 29).



4

On December 14th, while still in police custody, peti­
tioner was again fingerprinted (A. 13-14, 45-48). The same 
day these fingerprints, together with the prints of approxi­
mately 23 other Negro males picked up in the dragnet who 
were still under suspicion, were forwarded to the FBI 
laboratory for comparison with latent prints taken from 
the woman’s home (A. 38-39, 46-47).5

Petitioner was subsequently charged with rape and in­
dicted therefor in May, 1966 by the grand jury of Lauder­
dale County.6

At his trial in the Circuit Court of Lauderdale County, 
petitioner moved to suppress the introduction into evidence 
of his fingerprints as violative of his rights under the 
Fourth and Fourteenth Amendments (A. 3-5). Following 
a preliminary examination (A. 6-15), this motion was 
denied (A. 15).

The prosecution introduced fingerprint exhibits showing 
the correspondence of petitioner’s fingerprints to latent 
prints taken from the woman’s house (A. 35, 45).

The only other evidence against petitioner was the 
woman’s testimony that petitioner had done yaidwoik for 
her (A. 17, 26-27) and her description o f the attack (A. 22- 
23):

Q. If you will, Mrs. Key, turn and face the jury so 
they can hear you and tell us, you said he was pushing

5 The woman was assaulted in her home • the latent prints were 
lifted from the window (A . 33).

6 The indictment was quashed by the Circuit Court of Lauderdale 
County on grounds of systematic exclusion o f Negroes from the 
jury. On November 15, 1966, petitioner was reindicted and the 
following day he entered a plea of not guilty (A . 1-2).



5

up your clothes, tell us what was said by either of you, 
if anything, and what happened at that time!

A. Well. Well, I will have to think a minute. At 
one time I told him he was killing me, and then he 
started different. And after while, when he got up 
he says, well, he asked me, there is a bed in there and 
did I want him to get on top. And after he had got 
up, he said, “ Do you feel like an old lady now!” And 
I asked him did he want the money before he left. I 
says, “ It’s in another room” and he pulled [a head- 
piece] over the flashlight he had, I suppose, because 1 
could see his face, and I recognized him.

Q. Now, who did you recognize, Mrs. Key!
A. I recognized it was Johnny, I thought it was, but 

I wasn’t perfectly sure right then, but then I knew 
nobody else had been in the house but him. I asked 
him to carry a table through the kitchen, where he 
threw the light, where the meter was.

Q. Mrs. Key, I ask you to look at the defendant and 
tell me when you say “ Johnny,” are you referring to 
the defendant John Davis!

A. Over yonder in that white shirt, yes sir, that’s
him.

Q. All right.
A. No doubt in my mind about it.

At the close of the prosecution’s case, petitioner moved 
for a directed verdict on the ground that the evidence, 
either with or without the illegally obtained fingerpimts, 
was insufficient to go to the jury (A. 49-50). The Court 
denied the motion, saying (A. 50):

The Court has reexamined the Mapp case, but the
Court does find there is sufficient material here, even



6

in the face of examination the Court made, to war­
rant a jury finding. There are some elements eviden­
tiary in nature in the case that will bear some con­
siderable close inspection, but under the rules of the 
lawrs of the State of Mississippi, this Court feels that 
the State has made a case and that the case should 
go to the jury at this point.

Petitioner wTas convicted and sentenced to life imprison­
ment (A. 52).

The Supreme Court of Mississippi affirmed, holding that 
the introduction into evidence of petitioner’s fingerprints 
did not violate his rights under the Fourth and Fourteenth 
Amendments because:

1. The fingerprints were not the product of an arrest 
(A. 59; 204 So.2d at 275) ;7 and,

2. In any event, fingerprints taken as a result of an 
illegal arrest are not subject to the exclusionary rule 
enforcing the Fourth and Fourteenth Amendments (A. 
59-62; 204 So.2d at 275-77).

Petitioner’s suggestion of error stressed that his finger­
prints were the product of his arrest of December 12th 
(see note 7, supra; A. 66), but it was summarily overruled 
(A. 68).

On October 14, 1968, the Court granted certiorari to 
review' this holding (A. 69).

7 The court assumed that the fingerprints were the product of 
petitioner’s detention of December 3rd (A. 57-59; 204 So.2d at 
274-75), but that assumption was erroneous (see pp. 2-3, supra). 
The fingerprints were the product of petitioner’s detention of 
December 12th (see pp. 3-4, supra), which the court conceded was 
an arrest (A. 58 ; 204 So.2d at 274).



7

A R G U M E N T

Petitioner’s Fingerprints Were the Product of His Il­
legal Arrest and Were Introduced Into Evidence ao His 
Criminal Trial in Violation of the Fourth and Fourteenth 
Amendments.

A. Petitioner W as Illegally A rrested

Petitioner was initially taken into custody by Meridian 
police on December 3, 1965. He was detained at police 
headquarters, interrogated and released. Thereafter, prior 
to December 12th, he was taken into police custody, de­
tained and interrogated on 4 or 5 occasions. On December 
12th, petitioner was again taken into police custody, incar­
cerated 90 miles away and subjected to a lie detector test.

The court below held that petitioner’s detention of 
December 3rd did not amount to an arrest “ within the 
accepted legal meaning of the word,” because:

1. Petitioner “ was merely escorted to headquarters for 
interrogation, as in fact were numerous others, in the 
course of an investigation by police of an unsolved major 
crime” ; and,

2. “ [Tjhere was no intention to arrest”  (A. 59; 204 
So.2d at 275).

Petitioner submits that he was arrested, on December 3rd 
and thereafter,8 within the “ accepted legal meaning” of

8 The court below conceded that petitioner’s detention of De­
cember 12th was an arrest (see note 7, supra). But the court 
below stands ready to approve the introduction into evidence of 
petitioner’s fingerprints taken on December 3rd, should there be 
a retrial.



8

that term. Only last Term, in Sibron v. New York, 392 
U.S. 40, 67 (1968) (Peters case), this Court had occasion 
to again consider the definition of an arrest:

[I]t is clear that the arrest had for purposes of 
constitutional justification already taken place before 
the search commenced. When the policeman grabbed 
Peters by the collar, he abruptly ‘seized’ and curtailed 
his freedom of movement on the basis of probable 
cause to believe that he was engaged in criminal ac­
tivity. See Henry v. United States, supra at 103. At 
that point, he had the authority to search Peters . . . .9

In this case, the police obviously did more than grab 
petitioner and curtail his freedom of movement. The police 
took petitioner into custody and detained him at police 
headquarters. This certainly was an arrest. See W. 
LaFave, Arrest—The Decision to Take a Suspect Into 
Custody, pp. 4-5 (1965).

Petitioner’s arrest cannot be converted into a detention 
requiring less than probable cause by the court below’s 
form of words (“ merely escorted to headquarters for inter­
rogation” ). If that formulation is intended to suggest that 
petitioner consented to his detention, it is wholly unsup­
ported by the record. At the very least, the State would 
have the “burden of proving that the consent was, in fact, 
freely and voluntarily given. This burden cannot be dis­
charged by showing no more than acquiescence to a claim 
of lawful authority” (Bumper v. North Carolina, 391 U.S. 
543, 548-49 (1968)).

9 The citation to Henry v. United States, 361 U.S. 98, 103 (1959) 
referred to the following holding: “When the officers interrupted 
the two men and restricted their liberty of movement, the arrest, 
for purposes of this case, was complete.”

v



9

Nor can petitioner’s arrest be converted into a detention 
requiring less than probable cause by the statement that 
the police had no present intention to charge petitioner 
with crime. Arrests for investigation are apparently wide­
spread, but they are by no means legal. The President’s - 
Commission on Law Enforcement and the Administration 
of Justice, in its Task Force Report, The Police, found
(p. 186):

Although there is no legal basis for arresting per­
sons simply as a means of detaining them virile an 
investigation of their possible involvement in ciime 
is conducted, this has been a common practice in a 
number of departments.

And Professor Herbert L. Packer, in his recent book, 
The Limits of the Criminal Sanction (Stanford University 
Press, 1968), states:

The prototype of the outright violation [of the prin­
ciple of legality] is the arrest ‘for investigation’ or 
‘on suspicion.’ The ideal of the law of arrest is that 
no person may be deprived of his freedom, even mo­
mentarily, unless there is probable cause to believe 
that he has committed a crime. But that ideal is flouted 
in practice hundreds of times every day. People who 
arouse the suspicion of police that they maj be up 
to no good are taken into custody—sometimes only 
for a few minutes, sometimes for days or even weeks— 
out of a variety of preventive motives. The most near v 
respectable such motive is that upon interrogation it 
will turn out that these people have in fact committed 
an offense for which they can bo duly charged, even 
though the formal grounds for arrest are lacking (p. 
98).



10

This widespread police illegality has a corrosive effect 
upon the community and leads, concluded the President s 
Commission, to hostility and disorder (Task Force Repor , 
The Police, pp. 186-87).

There is simply no basis in the Fourth Amendment for 
the holding that petitioner was properly detained at head­
quarters on less than probable cause because the police 
were merely invest1 gating him. Such an interpretation 
would make a mockery of the Fourth Amendment, wnose 
protection turns upon the actual restraint placed upon the 
citizen’s liberty, not upon the police officer’s state of mind. 
Such an interpretation would s'gnal a return to the regime 
of the general warrant, which “perpetuated the oppressive 
practice of allowing the police to arrest and search on sus­
picion” and which it was the design of the Fourth Amend­
ment to extirpate (Henry v. United States, supra, 361 U. .
at 100).

Petitioner’s arrests were illegal for three reasons. First, 
as we have seen, he was arrested for investigation-a cir­
cumstance explicitly negativing the existence of probable 
cause.10 See Staples v. United States, 320 F.2d 817 (oth 
Cir. 1963); Manuel v. United States, 355 F.2d 344, 348 (5th
Cir. 1966).

Second, there was in fact no showing of probable cause 
for petitioner’s arrests. Indeed, there was no showing of

okiPMttt v i s , :  SafSJ;

El
worthy information were sufficient to warrant a prudent man in 
believing that the petitioner had committed or was committin0
an offense.”



11

fn include petitioner in the police dragnet my cause to mclua i , T bov Petitioner
beyond the fact that he was a " O f f i c e r ,  “ in an
" ■  arxested in v-ords^ t.onJ  ^  arrcst ot
attempt to goUe ; was exhMted to the woman
December 12tli, pe _ mnr ” hut she was unable
“ tor a gang* *  t a i la n t .  In snm,
to positively identif. p  ̂ more cause
there was no showing that the P f  l " t h ey had on 
to arrest petitioner cm *™™d l aTly insufficient to justify 
December 3rd an ^  on December 14th, there
any kind of detenti . »efficiently under suspicion
were still 23 other Negro youths sumaen 
we „ • in Washington for analysis,to send their fingerprints to W asmn0i

Third, t o  police
^ ^ i c d i o r o r ^ t m a r ^  —  -

had no good excuse o arrests made on
Conrt has from time to time

30n7Tl959)-, m inds,
V. United states, 6ob ever done so on

TT c  onn n%71 But this Court has ne\ei un 
386 U.S 300 (19 )• ^  ghows that the police had
a record such aS * ’ j j nitv to obtain a warrant if they
abundant time and IP • rt one 11 Decisions

r - s : : : r; sis" t r^ r rs r - -
- ^ i W e o u r t s  have treated the faih.™
the basis (or an inference hat police 3ss Pf t  ffit 1963). 

J 3  r a n  i S o n  of probabte cause and



12

affirmed in Terry v. Ohio,392 U.S. 1, 20 (1968): “We do nor 
retreat from our holdings that the police must ~  
practicable, obtain advance judicial approval of searcnes 
and seizures through the warrant procedure . . . or that 
in most instances failure to comply with the warrant r  ̂
quirement can only be encased by exigent 
There were clearly no “ exigent circumstances in tins ca. .

tt P etitionee’s F ingeepmnts, H aving Been I llegally Od- 
' taineo, Should H ave B een E xcluded F rom E vidence 

at His Criminal T rial.

The court below held that petitioner’s fingerprints, how- 
J r  obtained, were properly admitted into evidence be 
cause fingerprints are excepted from the operation of t 
exclusionary rule enforcing the Fourth Amendment. T 
Court apparently reasoned that fingerprints are 
from the exclusionary rule because they are authe 
(A. 61-62; 204 So.2d at 277):

In the case here, nothing the police did or could 
ever do would alter in the slightest degree the con- 
figuration of [petitioner’s] fingerprints nor cause them 
to be other than peculiar to himself, and different from 
those of all others. The act of taking fingerprints is

substitutes instead the far less procedure^ an after-

K  J S S S S l S y ^  W i a r  shortcomings of hindsight

S e fa ls T w o n ff Sim v. United States, 371 U.S. 471, 481-82 

The arrest warrant Pr0C®J°r® f
deliberate, impartialju d gm en t of a j d l the

in ̂ officer adduces as probable cause.



13

quite different in its essential nature from the obtain­
ing of a confession, the authenticity of which becomes 
suspect by reason of coercion, real or supposed, to 
which the suspect may be subjected while under the 
constraint of an allegal arrest. We think the evidence 
of [petitioner’s] prints was properly admitted.

This holding misconceives the policy of the Fourth 
Amendment and the function of the exclusionary rule.

The policy of the Fourth Amendment is to protect the 
individual’s right to privacy: “ The overriding function of 
the Fourth Amendment is to protect personal privacy and 
dignity against unwarranted intrusion by the State 
(Schmerber v. California, 384 U.S. 757, 767 (1966)).

The function of the exclusionary rule is to deter the 
police from trenching upon Fourth Amendment rights by 
removing their incentive to do so. Mapp v. Olno 367 U.S. 
643, 655-56 (1961); Linkletter v. Walker, 381 U.S. 618, 
636-37 (1965); Terry v. Ohio, supra, 392 U.S. at . 
“ [W ithout that rule, the freedom from state invasions of 
privacy would be so ephemeral and so neatly severed from 
its nexus with the freedom from all brutish means of 
coercing evidence as not to merit this Court’s high regard 
as a freedom ‘implicit in the concept order and liberty 
(M aw  v. Ohio, supra, 367 U.S. at 655)).

13 See also Camara v. Municipal Court, 387 U.S. 523, 528 (1967): 
“The basic purpose of [the Fourth] Amendment as recognized 
in countless decisions of this Court, is to safeguard the Priva^ J * “ <* 
security of individuals against arbitrary invasions by goveinmenta

0ffiTheSseareh in Sckmerbcr was conducted pursuant to a legal 
arrest (see 384 U.S. at 768-69). No claim of a violation of Filth  
Amendment rights is raised in this case.



14

Accordingly, tlie nature of tlie fruit of an illegal arrest, 
let alone its authenticity, is irrelevant to the operation of 
tlie exclusionary rule. Just as the exclusionary rule makes 
no distinction between “ mere evidence” and “ contraband 
seized pursuant to an illegal arrest (Warden v. Hayden 
387 TJ.S. 294, 301-02 (1967)), nor between “physical” and 
“ verbal” evidence (Wong Sun v. United States, 371 TJ.S. 
471, 485-86 (1963)), the exclusionary rule makes no dis­
tinction between “ unauthentic” and “ authentic” fruits of 
an illegal arrest. It is not what the police seized, but 
whether they seized it illegally that matters for Fourth 
Amendment purposes. Evidence is to be excluded if its 
exclusion is necessary to deter illegal police conduct; or, 
put another way, at the very least,  ̂evidence is to be ex­
cluded if its admission would provide an incentive to il­
legal police conduct.

This need to deter unwarranted intrusions by police 
officers upon the individual’s privacy and dignity is not 
affected by the fact that the product of the unwarranted 
intrusion is a gambling slip (see Beck v. Ohio, supra), an 
admission (see Wong Sun v. United States, supra), nar­
cotics (see Sibron v. New York, supra) or fingerprints 
(see Bynum v. United States, 262 F.2d 465 (D.C. Cir.
1958)).

Bynum, supra, cited with approval in Wong Sun, supra, 
371 TJ.S. at 486, n. 12, is squarely in point. The Court of 
Appeals there held that the exclusionary rule required the 
exclusion from evidence of fingerprints taken as a result 
of an illegal arrest, on reasoning which is fully applicable 
here (262 F.2d at 466-67):

It is well settled that an article taken from the person
of an individual on the occasion of an illegal arrest



\

is not admissible in evidence against him, although 
it is relevant and entirely trustworthy as an item 
proof [citing eases]. Again, if the police hav 
tained a statement from an accused person during his 
illegal detention, no showing that the statement has 
been obtained without coercion and actually recorded 
can make it admissible, although it may seem to be a 
trustworthy and patently relevant voluntary stotemc 
[citing cases]. In these situations, it is deemed a mat­
ter of overriding concern that effective sanctions be 
imposed against illegal arrest and detention and the 
risks of overreaching inherent in such action. Even 
though highly probative and seemingly trustworthy 
evidence is excluded in the process, this loss is though 
to be more than counterbalanced by the salutary e 
of a forthright and comprehensive rule that il e„al 
detention shall yield the prosecution no evidentiary 
advantage in building a case against the accused, 
of this is bottomed on the Constitution itself. The 
Fourth Amendment makes protection of the mdividua 
against illegal seizure or arrest a constitutional im­
perative. In the cited cases judicial authority over 
the manner on which justice shall be administered is 
exercised in a way calculated to implement the con-
stitutional guarantee. , , ,

True, fingerprints can be distinguished from state­
ments given during detention. They can also be dis­
tinguished from articles taken from a prisoner s pos­
session Both similarities and differences of each type 
of evidence to and from the others are apparent But 
all three have the decisive common characteristic o 
bein- something of evidentiary value which the public 
authorities have caused an arrested person to yield to

15

^ . | n



16

them during illegal detention. If one such product of 
illegal detention is proscribed by the same token all 
should be proscribed.14

Bynum is correct in holding that neither principle nor 
practice permits an exception to the exclusionary rule to 
be created for fingerprints. This Court was not speaking 
loosely when it held in Mapp v. Ohio, supra, 367 U.S. at 
655: “We hold that all evidence obtained by searches and 
seizures in violation of the Constitution is, by that same 
authority, inadmissible in a state court.” (Emphasis 
added)15

Were it otherwise, the police could, with impunity, arrest 
everyone in t o w ,16 fingerprint them and hope that one 
set of fingerprints would match. It is just this sort of 
“ ignoble shortcut to conviction,” that the Fourth Amend­
ment was expressly designed to prohibit (Mapp v. Ohio, 
supra, 367 U.S. at 660).

14 A t Bynum’s retrial, a set of his fingerprints taken under 
earlier le°al circumstances was introduced into evidence and up­
held on appeal. 274 F.2d 767 (D.C. Cir. 1960).

15 It cannot be doubted that fingerprints are “testing procedures 
[which] plainly constitute searches of ‘persons’ and depend ante­
cedently upon seizures of ‘persons’ within the meaning of [the 
Fourth] Amendment” (Schmerber v. California, 384 U.S. at 767).

16 Of course, the police did not arrest everyone in town in this 
case— only 65-70 Negro boys. Here, as in Lankford v. Gelston, 
364 F.2d 197, 204 (4th Cir. 1966), “ [t]he invasions so graphically 
depicted in this case ‘could’ happen in prosperous suburban neigh­
borhoods, but the innocent know only that wholesale raids do not 
happen elsewhere and did happen to them. Understandably, they 
feel that such illegal treatment is reserved for those elements who 
the police believe cannot or will not challenge them.”



17

Conclusion

“ If the police, as representatives of organized society, 
are to be deprived of every effective means of protecting 
the community against the modern day criminal, nothing 
will remain for the citizen, save to convert his home into 
a fortress, and to go armed for his own and his family s 
protection.” With these words, the court below sought to 
justify its holding. (A. 61; 201 So.2d at 276-77). But 
nothing in petitioner’s position is inconsistent with the 
needs of effective and legitimate law enforcement.  ̂W ere 
the records of the cases of the 65-70 innocent victims of 
the police drag-net before the Court, they would remove 
any doubt as to the illegitimacy of the police conduct  ̂at 
issue here. But it is in the nature of cases involving 
police practices that the innocent-those who will bear 
the major consequences of the rules of constitutional law 
which this Court establishes—are those this Court will 
never see. They must bear silent witness to the principle 
that “ [l]aw observance by the police cannot be divorced 
from law enforcement” (Lankford v. Gelston, supra, 364 
F.2d at 204). In that divorce lies neither justice nor se­
curity, for “ [njothing can destroy a government more 
quickly than its failure to observe its own laws, or worse,



18

its disregard of the charter of its own existence” (Mapp 
v. Ohio, supra, 367 U.S. 659).

Respectfully submitted,

.J ack Greenberg 
M ichael Meltsner 
M elvyn Z akr

10 Columbus Circle 
New York, N. Y. 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Jack Y oung

1151/2 North Parish Street 
Jackson, Miss. 39201

R euben V. A nderson

538y2 North Parish Street 
Jackson, Miss. 39202

Attorneys for Petitioner