# Simmons v. United States (390 U.S. 377)

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United States Supreme Court
390 U.S. 377
Simmons et al. v. United States
Certiorari to the United States Court of Appeals for the Seventh Circuit
No. 55. Argued: January 15, 1968. --- Decided: March 18, 1968
A federally insured savings and loan association (hereafter "the bank") was robbed by two unmasked men. Five bank employees witnessed the robbery, and on the day it occurred gave the FBI written statements. Petitioners, Simmons and Garrett, and another (Andrews) were subsequently indicted for the crime. In the afternoon of the day of the robbery, FBI agents made a warrantless search of Andrews' mother's house, and found two suitcases in the basement, one of which contained incriminating items. The next morning FBI agents obtained and (without indicating the progress of the investigation or suggesting who the suspects were) showed separately to each of the five bank employee witnesses some snapshots consisting mostly of group pictures of Andrews, Simmons, and others. Each witness identified pictures of Simmons as one of the robbers. None identified Andrews. Later some of those witnesses viewed indeterminate numbers of pictures and all identified Simmons. Three of the employees identified Garrett as the second robber from other photographs. Before trial Garrett moved to suppress the Government's exhibit of the suitcase containing the incriminating items as having been seized in violation of his Fourth Amendment rights. To establish his standing so to move, Garrett testified that the suitcase was similar to one he had owned and that he owned the clothing found therein. The District Court denied the motion to suppress. Garrett's testimony at the "suppression" hearing was, over his objection, admitted against him at trial. All five bank employee witnesses positively identified Simmons in court as one of the robbers and three identified Garrett, the two others testifying that they did not get a good look at him. The District Court denied a defense request under 18 U.S.C. § 3500 (the Jencks Act) for the production of the photographs shown to the witnesses before trial, the defense apparently claiming that they were incorporated in the written statements, which the Government had made available to the defense. That Act provides that after a witness has testified for the Government in a federal criminal prosecution the Government must, on a defense request, produce any "statement of the witness" in the Government's possession "which relates to the subject matter as to which the witness has testified." Petitioners and Andrews were convicted. Each petitioner's conviction (but not Andrews') was affirmed by the Court of Appeals. Simmons asserts that the pretrial identification procedure through use of the photographs was so unduly prejudicial as fatally to taint his conviction. Both petitioners claim error in the District Court's refusal to order production of the pictures under the Jencks Act. Garrett urges violation of his constitutional rights when testimony in support of his "suppression" motion was admitted against him at trial.
Held:
    1. In the light of the totality of the circumstances surrounding this case, the identification procedure through use of the photographs was not such as to deny Simmons due process of law or to call for reversal under the Court's supervisory authority. Pp. 383-386.
       (a) Each case involving pretrial initial identification by photographs must be considered on its own facts; and convictions based on eyewitness identification at trial following such pretrial identification will be set aside on the ground of prejudice only if the pretrial identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. P. 384.
       (b) Here resort to photographic identification by the FBI was necessary: a serious felony had been committed; the perpetrators were at large; the inconclusive clues led to Andrews and Simmons; and the agents had to determine swiftly if they were on the right track. Pp. 384-385.
       (c) In the circumstances of this case there was little chance that the procedure would lead to misidentification of Simmons. Pp. 385-386.
    2. Since none of the photographs was acquired or shown to the witnesses until the day after the witnesses gave statements to the FBI, the District Court correctly held that the photographs were not part of those statements and hence not producible for the defense under the Jencks Act. P. 387.
    3. In view of all the attendant circumstances, including the strength of the eyewitness identification of Simmons, the District Court's refusal (apart from any requirement of the Jencks Act) to order production of the photographs was not an abuse of its discretion as to Simmons. Pp. 388-389.
    4. When a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not be thereafter admitted against him at trial on the issue of guilt unless he makes no objection. Pp. 389-394.
       (a) Garrett justifiably believed that his testimony that he owned the suitcase was necessary to show that he had standing to claim that it was illegally seized; hence, the testimony was an integral part of his Fourth Amendment exclusion claim. Pp. 390-391.
       (b) The rationale of the courts below for their holdings that Garrett's testimony was admissible when the motion to suppress had failed was that the testimony had been "voluntarily" given and relevant and therefore was admissible like any other prior testimony or admission. Pp. 391-392.
       (c) This rule not only imposes a condition which may deter a defendant from making a Fourth Amendment objection; as a practical matter, it makes a defendant who wishes to establish standing do so at the risk that his words may later be used to incriminate him. P. 393.
       (d) In the circumstances of this case, it is intolerable that one constitutional right should have to be surrendered in order to assert another. P. 394.
371 F. 2d 296, affirmed in part, reversed and remanded in part.
Raymond J. Smith argued the cause for petitioners. With him on the brief were John Powers Crowley and George F. Callaghan.
Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Vinson, Beatrice Rosenberg and Mervyn Hamburg.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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