1. The Act of July 17, 1862, 12 Stat. 589, so far as it related to the confiscation of property, applied only to the property of persons who thereafter might be guilty of acts of disloyalty and treason, and it reached only the estate of the party for whose offenses the property was seized.
2. Until some provision was made by law for the condemnation of property in land of persons engaged in the rebellion, the courts of the United States could not decree a confiscation of it and direct its sale.
3. Such persons were not denied the right of contracting with and selling to each other; as between themselves, all the ordinary business could be lawfully carried on except in cases where it was expressly forbidden by the United States or would have been inconsistent with or have tended to weaken its authority.
4. The purpose of the United States to seize and confiscate the property of certain classes of persons engaged in the rebellion having been declared by the Act of July 17, 1862, sales and conveyances of property subsequently made by them could only pass a title subject to be defeated if the government should afterwards proceed for its condemnation. The fact that the property sold and conveyed was at the time within the territory occupied by the federal troops created no other legal impediment to the transfer.
5. The provision in that act that "all sales, transfers, or conveyances" of property of persons therein designated shall be null and void only invalidates such transactions as against any proceedings taken by the United States for the condemnation of the property. They are not void as between the parties or against any other party than the United States. The case of Corbett v. Nutt, 10 Wall. 464, cited on this point and approved.
6. A sale by public act, before a notary within the insurrectionary territory, of land in the City of New Orleans by one enemy to another for a valuable consideration, previous to the passage of the Confiscation Act, passed the title to the purchaser, which was not affected by subsequent judicial proceedings for its condemnation for alleged offenses of the vendor. The case of Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603, cited and approved.
7. An actual delivery of immovables in Louisiana is not essential to the validity of a sale of them made by public act before a notary. The law of the state considers the tradition or delivery of the property as accompanying the act.
1862, and a subsequent conveyance to himself of his brother's interest. The conveyance of the father was made in settlement and discharge of certain obligations resting upon him under the laws of Louisiana by reason of his having received, as the natural tutor of his children, property belonging to them as minor heirs of their deceased mother. It appears from the record that she died intestate at New Orleans in 1839, leaving the plaintiff and his brother her only heirs, and an estate valued at a sum over $35,000. The estate consisted principally of her separate property; a small portion was her share of the real property belonging to the matrimonial community. The surviving husband qualified, and was confirmed as the natural tutor of the children, and took charge of their property. The law of Louisiana imposes a general mortgage upon all the property of a tutor to secure the interests of minors and his faithful execution of the trust, but gives him the right to substitute in place of it a special mortgage upon particular parcels of his property. The tutor here availed himself of this right at different times. The last special mortgage was executed in 1847, and, with other property, covered the premises in controversy. Previously to this and in 1845, his indebtedness to his sons had been ascertained and fixed by decree of the probate court at the sum of $36,757. This amount was subsequently increased.
No account of his administration was ever rendered by the tutor until May 6, 1862, when a settlement took place between him and his sons, and in discharge of his obligations to them, he executed, before the recorder and ex-officio notary public of the Parish of St. Helena a public act of sale by which he sold and conveyed to them several lots situated in New Orleans, and among them the one in controversy in this case. This act of sale, which purports to have been recorded in the City of New Orleans on the 31st of the same month, the court refused to admit in evidence.
the Confiscation Act of July 17, 1862. The other defendants disclaimed title.
1. That the act was not a sale, but a giving in payment, and that no delivery of the property was or could be made, as the same was situated within the federal lines, and the act was executed within the military lines of the Confederate states, where the parties were sojourning.
2. That it being admitted that the vendor and vendees had been before, and were at the date of the act, and afterwards, engaged in rebellion against the United States, and so continued until the end of the war, and that the act was passed within the Confederate lines, the property being situated within the federal lines, the act of transfer was inoperative and void.
3. That such evidence would tend to contradict the decree of condemnation previously entered in the district court, and set up by the defendant in his answer.
4. That it being admitted that the grantor and grantees were enemies of the United States at the time the act was passed, the grantor was incompetent to complete the transfer of the property, the same being within federal military lines.
5. That the copy of the act offered in evidence was not, by the statute of the state, admissible in evidence against any right set up by a third person, without being accompanied with proof that the same had been duly and legally registered in the proper office where the properties were situated.
in the parish of St. Helena, within the Confederate lines, could not be legally recorded in the Parish of Orleans, which at that date was within federal military lines.
These several objections were sustained by the court, and the plaintiff excepted.
1st, that even if the Confiscation Act contained a prohibition against sales, transfers, and conveyances, made in good faith prior to its passage, such prohibition did not apply to transfers and conveyances wherein all parties to the same, vendor and vendees, were equally engaged in rebellion against the United States, and consequently, where the property conveyed or transferred would be as liable to confiscation in the hands of the vendees as in the hands of the vendor.
2d, that all that was seized, and all that could be seized, condemned, and sold under the judgment or decree of the United States District Court for the Eastern District of Louisiana, in the proceedings against the property of Charles M. Conrad, on which judgment or decree, and the sale made in pursuance thereof, the defendant bases his claim to the premises in controversy in this cause, was the title, right, and estate of said Charles M. Conrad, whatever the same might have been, to endure only during his life, in and to the property libeled and condemned, and the right, property, and estate therein of no other person or persons whatsoever.
3d, that the United States, by the proceedings and decree of condemnation, succeeded only to the rights of said Charles M. Conrad to said property, whatever the same might be, to endure only during his life, and that the decree, and marshal's sale to defendant thereunder, had no other effect than to transfer such rights as the United States acquired by the decree, and did not disturb or affect the rights of any other person or persons to the property, or any part thereof, and that if, at the time of the seizure, proceedings, and decree, Charles M. Conrad had no rights and estate in the property involved, the United States acquired no rights and estate therein, and the marshal's sale of the property transferred no interest or estate therein to the defendant the purchaser at the sale.
But the court refused to give the instructions as prayed, or any of them, and the plaintiff excepted.
At the request of the defendants, the court instructed the jury that, the plaintiff having offered no evidence to show title in himself, it was their duty to return a verdict for the defendants; to which instruction the plaintiff excepted.
The jury found for the defendants, and, judgment having been entered on the verdict, the plaintiff brought the case here on writ of error.
The questions presented for our determination relate to the admissibility and effect of the act of sale of May 6, 1862, and to the subsequent condemnation and sale in the confiscation proceedings. Numerous exceptions were taken to the rulings of the circuit court in admitting and rejecting evidence, and in giving and refusing instructions to the jury, but we do not deem it important to notice them in detail. What we have to say upon the Confiscation Act, the title which passed by a condemnation and sale under it, and the power of enemies to sell and convey to each other their interest in real property situated within the lines of the other belligerent, will sufficiently express our judgment upon the questions involved, and serve to guide the court below in any subsequent proceedings.
territory or in the District of Columbia, might thereafter give aid and comfort to the rebellion, and the joint resolution of the two houses of Congress, passed in explanation and limitation of the law, removed that exception. That resolution declared that the third clause of that section should be so construed as not to apply to any act or acts done prior to its passage. The sixth section, which provided for the seizure of the property of persons other than those named in the previous section who, being engaged in armed rebellion, did not within sixth days after the warning and proclamation of the President, cease to aid, countenance, and abet the rebellion, declared that "all sales, transfers, and conveyances of any such property after the expiration of the said sixty days" should be null and void. 12 Stat. 627.
"remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court."
of property of persons engaged in the rebellion are those of Aug. 6, 1861, and of July 17, 1862. That of 1861 applied only to property acquired with intent to use or employ the same, or to suffer the same to be used or employed, in aiding or abetting the insurrection or in resisting the laws, and did not touch the property in controversy here. And the act of 1862, as already stated, did not authorize a seizure and confiscation for past acts. It might have done so on the simple ground that the owner of the property seized was a public enemy, without reference to the time he became such, but Congress otherwise provided, and its will furnishes the rule by which to determine the rights of the elder Conrad at the time he disposed of his property.
"does not necessarily exclude all claim to other interests than those which were seized. In admiralty cases and in revenue cases, a condemnation and sale generally pass the entire title to the property condemned and sold. This is because the thing condemned is considered as the offender or the debtor, and is seized in entirety. But such is not the case in many proceedings which are in rem. Decrees of courts of probate or orphans' courts directing sales for the payment of a decedent's debts, or for distribution, are proceedings in rem. So are sales under attachments or proceedings to foreclose a mortgage quasi proceedings in rem at least. But in none of these cases is anything more sold than the estate of the decedent or of the debtor or the mortgagor in the thing sold. The interests of others are not cut off or affected."
"They were null and void as against the belligerent or sovereign right of the United States to appropriate and use the property for the purpose designated, but in no other respect, and not as against any other party. Neither the object sought nor the language of the act requires any greater extension of the terms used. The United States were the only party who could institute the proceedings for condemnation, the offense for which such condemnation was decreed was against the United States, and the property condemned or its proceeds went to their sole use. They alone could therefore be affected by the sale."
And the Court added that any other construction would impute to the United States a severity in their legislation entirely foreign to their history. If the sale to the younger Conrads had been made after the passage of the Confiscation Act, it would not have prevented the title of the elder Conrad from vesting by the decree of condemnation in the United States. But, having been made previously, it was not impaired by the act.
"is without any exception, as respects immovables, not only between the parties, but as to all the world, provided the contract be clothed with the formalities required by law, that it is bona fide, and purports to transfer the ownership of the property."
Art. 1914. The code also declares that "the law considers the tradition or delivery of immovables as always accompanying the public act which transfers the property." Art. 2455; Lallande v. Lee, 9 Rod. (La.) 514; Flynn v. Moore, 4 La.Ann. 400; Ellis v. Prevost, 13 La. 235, 237. We are of opinion, therefore, that the act of sale made on the 6th of May, 1862, was unaffected by the subsequent confiscation proceedings, and should have been admitted in evidence.
"that an alien can take lands by purchase, though not by descent, or, in other words, he cannot take by the act of law, but he may by the act of the party. This principle has been settled in the Year Books, and has been uniformly recognized as sound law from that time. Nor is there any distinction whether the purchase be by grant or by devise. In either case, the estate vests in the alien, not for his own benefit but for the benefit of the state, or, in the language of the ancient law, the alien has the capacity to take but not to hold lands, and they may be seized into the hands of the sovereign. But until the lands are so seized, the alien has complete dominion over the same."
capacity to sue is suspended. But as to capacity to purchase, no case has been cited in which it has been denied, and in Attorney General v. Wheeden & Shales, Park.Rep. 267, it was adjudged that a bequest to an alien enemy was good, and after a peace might be enforced. Indeed, the common law in these particulars seems to coincide with the jus gentium."
If an alien enemy can, by devise or purchase from a loyal citizen or subject, take an estate in the country of the other belligerent and hold it until office found, there would seem to be no solid reason for refusing a like efficacy to a conveyance from one enemy to another of land similarly situated. * A different doctrine would unsettle a multitude of titles passed during the war between residents of the insurrectionary territory temporarily absent therefrom whilst it was dominated by the federal forces. Such residents were deemed enemies by the mere fact of being inhabitants of that territory, without reference to any hostile disposition manifested or hostile acts committed by them. In numerous instances also, transfers of property were made in loyal states bordering on the line of actual hostilities by parties who had left those states and joined the insurgents. This was particularly the case in Missouri and Kentucky. No principle of public policy would be advanced or principle of public law sustained by holding such transfers absolutely void, instead of being merely inoperative as against the right of the United States to appropriate the property jure belli; on the contrary, such a holding would create unnecessary hardship, and therefore add a new cruelty to the war.
* See the able and exhaustive opinion of the Supreme Court of Massachusetts in Kershaw v. Kelsey, delivered by Mr. Chief Justice Gray, 100 Mass. 561.
MR. JUSTICE CLIFFORD dissented. His opinion applies to this and to the subsequent case of Burbank v. Conrad. It will be found on page 96 U. S. 293.


(3) regulations adopted under a provision of the Internal Revenue Code relating to or governing real estate investment trusts.
(1) "Participating shares" means shares that entitle the holders of the shares to participate without limitation in distributions.
(B) applying a portion of the consideration received in connection with the transaction to the conduct of a business that the real estate investment trust engages in after the transaction.
(3) "Shares" includes a receipt or other instrument issued by a depository representing an interest in one or more shares or fractions of shares of a domestic or foreign real estate investment trust that are deposited with the depository.
(4) "Voting shares" means shares that entitle the holders of the shares to vote unconditionally in elections of trust managers.
§ 200.402. APPROVAL OF MERGER.
(a) A real estate investment trust that is a party to the merger under Chapter 10 must approve the merger by complying with this section.
(B) directs that the plan of merger be submitted to the shareholders for approval without recommendation if the trust managers determine for any reason not to recommend approval of the plan of merger.
(c) Except as provided by this subchapter or Chapter 10, the plan of merger shall be submitted to the shareholders of the real estate investment trust for approval as provided by this subchapter. The trust managers may place conditions on the submission of the plan of merger to the shareholders.
(d) If the trust managers approve a plan of merger required to be approved by the shareholders of the real estate investment trust but do not adopt a resolution recommending that the plan of merger be approved by the shareholders, the trust managers shall communicate to the shareholders the reason for the trust managers' determination to submit the plan of merger without a recommendation.
(e) Except as provided by Chapter 10 or §§ 200.407-200.409, the shareholders of the real estate investment trust shall approve the plan of merger as provided by this subchapter.
§ 200.403. APPROVAL OF CONVERSION.
(a) A real estate investment trust must approve a conversion under Chapter 10 by complying with this section.
(2) directs that the plan of conversion be submitted to the shareholders for approval without recommendation if the trust managers determine for any reason not to recommend approval of the plan of conversion.
(c) The plan of conversion shall be submitted to the shareholders of the real estate investment trust for approval as provided by this subchapter. The trust managers may place conditions on the submission of the plan of conversion to the shareholders.
(d) If the trust managers approve a plan of conversion but do not adopt a resolution recommending that the plan of conversion be approved by the shareholders of the real estate investment trust, the trust managers shall communicate to the shareholders the reason for the trust managers' determination to submit the plan of conversion without a recommendation.
(e) Except as provided by §§ 200.407-200.409, the shareholders of the real estate investment trust must approve the plan of conversion as provided by this subchapter.
§ 200.404. APPROVAL OF EXCHANGE.
(a) A real estate investment trust the shares of which are to be acquired in an exchange under Chapter 10 must approve the exchange by complying with this section.
(2) directs that the plan of exchange be submitted to the shareholders for approval without recommendation if the trust managers determine for any reason not to recommend approval of the plan of exchange.
(c) The plan of exchange shall be submitted to the shareholders of the real estate investment trust for approval as provided by this subchapter. The trust managers may place conditions on the submission of the plan of exchange to the shareholders.
(d) If the trust managers approve a plan of exchange but do not adopt a resolution recommending that the plan of exchange be approved by the shareholders of the real estate investment trust, the trust managers shall communicate to the shareholders the reason for the trust managers' determination to submit the plan of exchange to shareholders without a recommendation.
(e) Except as provided by §§ 200.407-200.409, the shareholders of the real estate investment trust shall approve the plan of exchange as provided by this subchapter.
§ 200.405. APPROVAL OF SALE OF ALL OR SUBSTANTIALLY ALL OF ASSETS.
(a) Except as provided by the certificate of formation of a domestic real estate investment trust, a sale, lease, pledge, mortgage, assignment, transfer, or other conveyance of an interest in real property or other assets of the real estate investment trust does not require the approval or consent of the shareholders of the real estate investment trust unless the transaction constitutes a sale of all or substantially all of the assets of the real estate investment trust.
(b) A real estate investment trust must approve the sale of all or substantially all of its assets by complying with this section.
(2) directs that the sale of all or substantially all of the assets of the real estate investment trust be submitted to the shareholders for approval without recommendation if the trust managers determine for any reason not to recommend approval of the sale.
(d) The sale of all or substantially all of the assets of the real estate investment trust shall be submitted to the shareholders of the real estate investment trust for approval as provided by this subchapter. The trust managers may place conditions on the submission of the proposed sale to the shareholders.
(e) If the trust managers approve the sale of all or substantially all of the assets of the real estate investment trust but do not adopt a resolution recommending that the proposed sale be approved by the shareholders of the real estate investment trust, the trust managers shall communicate to the shareholders the reason for the trust managers' determination to submit the proposed sale to shareholders without a recommendation.
(f) The shareholders of the real estate investment trust shall approve the sale of all or substantially all of the assets of the real estate investment trust as provided by this subchapter.
(g) After the approval of the sale by the shareholders, the trust managers may abandon the sale of all or substantially all of the assets of the real estate investment trust, subject to the rights of a third party under a contract relating to the assets, without further action or approval by the shareholders.
§ 200.406. GENERAL PROCEDURE FOR SUBMISSION TO SHAREHOLDERS OF FUNDAMENTAL BUSINESS TRANSACTION.
(a) If a fundamental business transaction involving a real estate investment trust is required to be submitted to the shareholders of the real estate investment trust under this subchapter, the real estate investment trust shall notify each shareholder of the real estate investment trust that the fundamental business transaction is being submitted to the shareholders for approval at a meeting of shareholders as required by this subchapter, regardless of whether the shareholder is entitled to vote on the matter.
(b) If the fundamental business transaction is a merger, conversion, or interest exchange, the notice required by Subsection (a) shall contain or be accompanied by a copy or summary of the plan of merger, conversion, or interest exchange, as appropriate, and the notice required by § 10.355.
(2) state that the purpose, or one of the purposes, of the meeting is to consider the fundamental business transaction.
§ 200.407. GENERAL VOTE REQUIREMENT FOR APPROVAL OF FUNDAMENTAL BUSINESS TRANSACTION.
(a) Except as provided by this code or the certificate of formation or bylaws of a real estate investment trust in accordance with § 200.261, the affirmative vote of the holders of at least two-thirds of the outstanding shares of the real estate investment trust entitled to vote on a fundamental business transaction is required to approve the transaction.
(b) Unless provided by the certificate of formation or § 200.408, shares of a class or series that are not otherwise entitled to vote on matters submitted to shareholders generally will not be entitled to vote for the approval of a fundamental business transaction.
(c) Except as provided by this code, if a class or series of shares of a real estate investment trust is entitled to vote on a fundamental business transaction as a class or series, in addition to the vote required under Subsection (a), the affirmative vote of the holders of at least two-thirds of the outstanding shares in each class or series of shares entitled to vote on the fundamental business transaction as a class or series is required to approve the transaction.
(d) Unless required by the certificate of formation, approval of a merger by shareholders is not required under this code for a real estate investment trust that is a party to the plan of merger unless that real estate investment trust is also a party to the merger.
§ 200.408. CLASS VOTING REQUIREMENTS FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS.
(2) that class or series of shares is entitled under the certificate of formation to vote as a class or series on the plan of merger or conversion.
(2) that class or series is entitled under the certificate of formation to vote as a class or series on the plan of exchange.
(c) Separate voting by a class or series of shares of a real estate investment trust is required for approval of a sale of all or substantially all of the assets of the real estate investment trust if that class or series of shares is entitled under the certificate of formation to vote as a class or series on the sale of the real estate investment trust's assets.
§ 200.409. NO SHAREHOLDER VOTE REQUIREMENT FOR CERTAIN FUNDAMENTAL BUSINESS TRANSACTIONS.
(5) the sum of the number of participating shares that are outstanding immediately after the merger and the number of participating shares that may be acquired on the conversion or exercise of securities issued under the merger does not exceed by more than 20 percent the total number of participating shares of the real estate investment trust that are outstanding immediately before the merger.
(b) Unless required by the certificate of formation, a plan of merger effected under § 10.005 or 10.006 does not require the approval of the shareholders of the real estate investment trust.
§ 200.410. RIGHTS OF DISSENT AND APPRAISAL.
A shareholder of a domestic real estate investment trust has the rights of dissent and appraisal under Subchapter H, Chapter 10, with respect to a fundamental business transaction.


text:
Incident to South Carolina's valid scheme of regulating the sale of liquor within the State, a requirement that a manufacturer do more, as a condition of doing business, than merely solicit sales is not impermissible even though it has the effect of requiring the out-of-state manufacturer to undertake activities that eliminate its protection under 15 U.S.C. 381 (a) from the state income tax. Pp. 278-284.
257 S. C. 17, 183 S. E. 2d 710, affirmed.
MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, WHITE, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., filed a statement concurring in the result, post, p. 284. STEWART, J., took no part in the consideration or decision of the case.
Stephen M. Piga argued the cause for appellant. With him on the briefs was W. Croft Jennings, Jr.
G. Lewis Argoe, Jr., Assistant Attorney General of South Carolina, argued the cause for appellee. With him on the brief were Daniel R. McLeod, Attorney General, and Joe L. Allen, Jr., and John C. Von Lehe, Assistant Attorneys General.
Mr. Piga filed a brief for the Distilled Spirits Institute as amicus curiae urging reversal.
In this case we must determine whether South Carolina may tax the income from local sales of Heublein's products, consistent with the limitations on the State's power to tax imposed by 15 U.S.C. 381 (a). 1 The South Carolina Tax Commission assessed Heublein, Inc., a Connecticut corporation that produces alcoholic beverages, a total of $21,549.50 in taxes on income derived from the sale of its goods in South Carolina. 2 After a hearing before the Tax Commission, Heublein paid the taxes and brought suit to recover them. The Court of Common Pleas held that 381 (a) protected Heublein from tax liability in South Carolina. The Supreme Court of South Carolina reversed. 257 S. C. 17, 183 S. E. 2d 710. We noted probable jurisdiction, 405 U.S. 952 (1972), and now affirm. We hold that Heublein's activities within South Carolina exceed the minimum standards established in 15 U.S.C. 381 (a), [409 U.S. 275, 277] and that South Carolina may, pursuant to an otherwise valid regulatory scheme, compel Heublein to undertake activities that take it beyond the protection of 15 U.S.C. 381 (a).
During the years in question, Heublein had one employee in South Carolina. He maintained an office in his home and a desk at the warehouse of Ben Arnold Co., the local distributor of Heublein's products. Heublein's representative briefed Ben Arnold's salesmen on Heublein's products, and traveled throughout the State to liquor retailers, telling them of the products and leaving promotional literature with them. Ordinarily, the retailers sent orders directly to Ben Arnold, but occasionally Heublein's representative transmitted them. Ben Arnold, in turn, placed its orders with Heublein's home office in Connecticut. Heublein then acknowledged its acceptance of the orders and indicated to Ben Arnold when the goods would be shipped. They were sent by common carrier consigned to Heublein in care of its representative at the premises of Ben Arnold.
This arrangement, which served none of Heublein's business interests, was adopted to conform to the requirements of the South Carolina Alcoholic Beverage Control Act. S. C. Code Ann. 4-1 et seq. (1962 and Supp. 1971). Under that Act, only registered producers of registered brands of alcoholic beverages may ship those brands of alcoholic beverages into the State. 4-134, 4-135. Such producers must have a resident representative who has no direct or indirect interest in a local liquor business. 4-131 (3), 4-139. Shipments of liquor into the State may be made only to the producer in care of its representative. 4-141. Prior to the shipment, the producer must mail a copy of the invoice showing the quantity and price of the items shipped, and a copy of the bill of lading, to the Alcoholic Beverage Control [409 U.S. 275, 278] Commission. Immediately after accepting delivery, the representative must furnish the Commission a copy of the invoice showing the time and place of delivery. Ibid. When received, the shipment must be stored in a licensed warehouse of the producer, or, after delivery is complete, the shipment may be transferred to a licensed wholesaler. 4-140, 4-141. Before the goods are shipped to a wholesaler, however, the representative must obtain the Commission's permission to make the transfer. 4-141. Heublein complied with this regulatory scheme.
Title 15 U.S.C. 381 (a) (1), on which Heublein relies, provides that no State shall have power to impose a net income tax on income derived within the State from interstate commerce if the recipient of the income confined its business within the State to "the solicitation of orders . . . in such State for sales of tangible personal property, which orders are sent outside the State for approval or rejection, and, if approved, are filled by shipment or delivery from a point outside the State."
We need not decide whether, as the State urges, the actions of Heublein's representative in maintaining a local office, meeting with retailers, distributing promotional literature, and personally delivering some orders to the wholesaler, do not fall within the term "solicitation." Compare Smith Kline & French v. Tax Comm'n, 241 Ore. 50, 403 P.2d 375 (1965), with Clairol, Inc. v. Kingsley, 109 N. J. Super. 22, 262 A. 2d 213, aff'd, 57 N. J. 199, 270 A. 2d 702 (1970), appeal dismissed, 402 U.S. 902 (1971). For here Heublein has done more than just those acts. It sent its products to its local representative who transferred them to a local wholesaler. This transfer occurred within the State and clearly was neither "solicitation" nor the filling of [409 U.S. 275, 279] orders "by shipment or delivery from a point outside the State" within the meaning of 381 (a) (1).
Heublein contends, however, that the transfer never would have occurred had not South Carolina required it as a condition of conducting business within the State. Heublein argues that a State may not evade the purpose of 381 (a) by requiring a firm to do more than solicit business within the State and then taxing the firm for engaging in this compelled additional activity.
If we were persuaded that South Carolina has evaded the intent of the statute we would, of course, be reluctant to uphold its actions. But that is not what South Carolina has done here. The legislative history of 381 shows that Congress had rather limited purposes which are not evaded by South Carolina's regulation of liquor sales in the manner it has chosen. Congress did not focus on the consequences of its actions for such local regulatory schemes. We therefore will not read the statute as prohibiting the States from adopting such schemes, even when the regulation requires the producer to have more than the minimum contacts with the State for which 381 provides tax immunity. Such a reading would require us to assume that Congress carefully considered the difficult problems of accommodating the federal interest in an open national economy with local interest in regulating the sale of liquor. The evidence is clear that Congress did not do so.
The impetus behind the enactment of 381 was this Court's opinion in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450 (1959). There we held that "net income from the interstate operations of a foreign corporation may be subjected to state taxation provided the levy is not discriminatory and is properly apportioned to local activities within the taxing State forming sufficient nexus to support the same." 358 U.S., at 452 . Congress promptly responded to the "considerable [409 U.S. 275, 280] concern and uncertainty" 3 and the "serious apprehension in the commercial community" 4 generated by this decision by enacting Pub. L. 86-272, 73 Stat. 555, 15 U.S.C. 381, within seven months.
Congress, then, did not address in 381 the problem of taxing a business when it undertook local activities simply in order to comply with the requirements of a valid regulatory scheme. Such regulation is an important function of local governments in our federal scheme. As we said last Term, "unless Congress conveys its purpose [409 U.S. 275, 282] clearly, it will not be deemed to have significantly changed the Federal-State balance." United States v. Bass, 404 U.S. 336, 349 (1971).
South Carolina's Alcoholic Beverage Control Act is a long and detailed statute. Requirements that certain records be kept by the manufacturer, the wholesaler, and the retailer pervade the scheme. There must be complete records of the quantities, brands, and prices involved at every stage of each liquor sale. By requiring manufacturers to localize their sales, South Carolina establishes a check on the accuracy of these records. For [409 U.S. 275, 283] example, when a manufacturer can transfer its goods to a wholesaler in the State only after it submits an invoice showing the price and after it receives permission for the transfer, it is easier for the State to enforce its requirement that the wholesale price in South Carolina be no higher than that elsewhere in the country. S. C. Code Ann. 4-137.1 (Supp. 1971). The requirement that sales be localized is, unquestionably, reasonably related to the State's purposes and is not simply an attempt by the State to provide a basis for the taxation of an out-of-state seller's local sales.
"This Court made clear in the early years following the adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders."
"(2) the solicitation of orders by such person, or his representative, in such State in the name of or for the benefit of a prospective customer of such person, if orders by such customer to such person to enable such customer to fill orders resulting from such solicitation are orders described in paragraph (1)."
[ Footnote 2 ] A license tax, which is predicated upon liability for income taxes, was also assessed and paid. S. C. Code Ann. 65-606 (1962). There is no dispute over the amount for which Heublein is liable under this statute.
[ Footnote 3 ] S. Rep. No. 658, 86th Cong., 1st Sess., 2.
[ Footnote 4 ] H. R. Rep. No. 936, 86th Cong., 1st Sess., 1.
[ Footnote 5 ] See, e. g., S. Rep. No. 658, supra, n. 3, pp. 2-3: "Persons engaged in interstate commerce are in doubt as to the amount of local activities within a State that will be regarded as forming a sufficient `nexus,' that is, connection, with the State to support the imposition of a tax on net income from interstate operations and `properly apportioned' to the State."
[ Footnote 6 ] That Congress was untroubled by those questions is suggested by its emphasis on the increased overhead and recordkeeping that local taxation of minimal activities would cause. See, e. g., id., at 4; H. R. Rep. No. 936, supra, n. 4, p. 2: "These businesses are concerned not only with the costs of taxation, but also with the inescapable fact that compliance with the diverse tax laws of every jurisdiction in which income is produced will require the maintenance of records for each jurisdiction and the retention [409 U.S. 275, 281] of legal counsel and accountants who are familiar with the tax practice of each jurisdiction." Where a valid regulatory scheme requires that records be kept, the overhead costs about which Congress was concerned might not rise substantially when a state income tax was imposed. South Carolina's scheme for regulating liquor does little more than require that Heublein keep certain records.
[ Footnote 7 ] H. R. Rep. No. 936, supra, n. 4, p. 2; S. Rep. No. 658, supra, n. 3, pp. 4-5: "Your committee recognizes that the bill it has reported is not a permanent solution to the problem that exists. It was not intended to be. Your committee . . . recognizes that the problem is a complex one which requires extensive and exhaustive study in arriving at a permanent solution fair alike to the States and to the Nation. Your committee believes, however, that the bill it has reported will serve as an effective stopgap or temporary solution while further studies are made of the problem."
[ Footnote 8 ] This report is published as H. R. Rep. No. 1480, 88th Cong., 2d Sess., H. R. Rep. No. 565, 89th Cong., 1st Sess., and H. R. Rep. No. 952, 89th Cong., 1st Sess.
[ Footnote 9 ] MR. JUSTICE BLACKMUN, in his separate statement, suggests that 381 does proscribe what South Carolina has done here, but that the Twenty-first Amendment prohibits such an action by Congress. In his view, to the extent that 381 prohibits taxing activities undertaken in order to comply with a regulation valid under the Twenty-first Amendment, it is unconstitutional. We prefer to read the statute and its legislative history, ambiguous though they may be, to avoid such a holding. Cf. United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916). And, though the relation between the Twenty-first Amendment and the force of the Commerce Clause in the absence of congressional action has occasionally been explored by this Court, we have never squarely determined how that Amendment affects Congress' power under the Commerce Clause. Cf. Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951).
"[The State] has seen fit to permit manufacture of whiskey only upon condition that it be sold to an indicated class of customers and transported in definitely specified ways. These conditions are [409 U.S. 275, 284] not unreasonable and are clearly appropriate for effectuating the policy of limiting traffic in order to minimize well-known evils . . . ." Ziffrin, Inc. v. Reeves, 308 U.S. 132, 139 (1939). Cf. Duckworth v. Arkansas, 314 U.S. 390 (1941); Carter v. Virginia, 321 U.S. 131 (1944).

matches: v. v. v. v. v. v. v. v. v.


In each class action filed against Continental, Delta and Iberia, the defendant airline moved to dismiss on the grounds that EU 261 does not provide a private right of action enforceable in U.S. courts and that the ADA expressly preempts a claim for violation of EU 261. The airlines’ ADA argument is based on the Supreme Court’s broad interpretation of the ADA’s preemption provision, which states that “[a] State . . . may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”8 In Lozano v. Continental, Judge Nordberg did not rule on the issue of express ADA preemption, basing his decision entirely on the ground that the European Union never intended to confer a private right of action under EU 261 that could be enforced by a U.S. court. In Volodarskiy v. Delta, Judge Chang agreed that the absence of a private right of action under EU 261 was a dispositive basis for granting Delta’s motion to dismiss. With respect to Delta’s ADA preemption argument, he held that the ADA does not expressly preempt a direct EU 261 claim because the ADA’s definition of the word “State” does not include foreign countries. In Giannopoulos v. Iberia, Judge Durkin agreed with Judge Chang that the ADA does not expressly preempt a cause of action for violation of EU 261. However, Judge Durkin went on to consider whether the ADA preempted such a claim under the doctrine of implied preemption, finding that the ADA does impliedly preempt a direct cause of action brought under EU 261.
Accordingly, as it stands, airlines have two possible defenses against direct EU 261 claims brought in a U.S. court: (1) no private right of action; and (2) implied preemption under the ADA. Nevertheless, despite the growing number of cases finding that EU 261 claims cannot be brought in U.S. courts, the issue is far from settled.
This same issue of whether direct EU 261 claims can be brought in a U.S. court still is under consideration in two other EU 261 class action cases pending in the United States Court in the Northern District of Illinois against Lufthansa and United Airlines.9 Moreover, the plaintiffs in the Volodarskiy case are appealing Judge Chang’s decision to the Court of Appeals for the Seventh Circuit. Accordingly, although there is no conflict between the decisions rendered in the Continental, Delta and Iberia class actions, the domestic and foreign carriers should stay tuned as these novel legal issues continue to unfold.
2 Condon & Forsyth’s previous Client Bulletins and Newsletters on the topic of EU 261 are available at: https://condonlaw.com/publications.htm.
3 Giannopoulos v. Iberia, Líneas Aéreas de España, S.A., No. 11 C 775, Opinion and Order [Dkt No. 254] (N.D. Ill. filed on Feb. 12, 2014).
4 The plaintiffs also alleged a breach of contract claim against Iberia. In a separate opinion, Judge Durkin granted Iberia’s motion for summary judgment dismissing the plaintiffs’ breach of contract claim.
5 Lozano v. Continental Airlines, Inc., No. 11 C 8258, 2013 WL 5408652 (N.D. Ill. Sept. 26, 2013) (Nordberg, S.J.). A final judgment has not been entered in this case, however, as the plaintiffs moved for reconsideration. The motion for reconsideration is still pending.
6 Volodarskiy v. Delta Air Lines, Inc., No. 11 C 782, 2013 WL 5645776 (N.D. Ill. Oct. 16, 2013), (Chang, J.).
7 49 U.S.C. § 41701 et seq.
8 49 U.S.C. § 41713(b)(1).
9 Polinovsky v. Deutsche Lufthansa AG, No. 11 C 780 (N.D. Ill. filed on Feb. 3, 2011) (Coleman, J.); Bergman v. United Airlines, Inc., No. 12 C 7040 (N.D. Ill. filed on Sept. 4, 2012) (Tharp, J.).


text:
With the use of high-resolution atomic force microscopy the effect of cefotaxime on morphological and mechanical properties of gram-positive bacteria (Staphylococcus aureus) cells was studied. The difference in the morphological features of bacterial populations was shown by the nature of the response to the antimicrobial agent. The common point was a decrease in diameter and an increase in the altitude characteristics of cells, which may be due to internal osmotic pressure on the cell wall, which reduced its rigidity under the action of cefotaxime.
1. Baturin V. A., Shchetinin Ye. V., Demidenko I. F., Korableva O. A. Byulleten antibiotikorezistentnosti respiratornykh patogenov v OITAR g. Stavropolya. Stavropol: StGMU, 2014.
2. Erokhin P. S. Atomno-silovaya mikroskopiya kak instrument opredeleniya chuvstvitelnosti baktery k faktoram bioticheskoy i abioticheskoy prirody: avtoref. dis. kand. fiz.-mat. Nauk. Saratov, 2015.
3. Mironov V. L. Osnovy skaniruyushchey zondovoy mikroskopii. N. Novgorod, 2004.
4. Opredeleniye chuvstvitelnosti mikroorganizmov k antibakterialnym preparatam. Metodicheskiye ukazaniya. M., 2004.
5. Pleskova S. N. Dubrovin Ye. V., Golubeva I.S., Gorshkova Ye. N., Pudovkina Ye. E. Fizika tvyordogo tela. Vestnik Nizhegorodskogo universiteta im. N. I. Lobachevskogo. – Solid state physics bulletin of the Nizhny Novgorod University, N. I. Lobachevsky. 2013;2(2):34-38.
6. Prakticheskoye rukovodstvo po antiinfektsionnoy khimioterapiii. pod red. L. S. Strachunskogo, Yu. B. Belousova, S. N. Kozlova. Smolensk: «MAKMAKh», 2007.
7. Ratsionalnaya antimikrobnaya terapiya. pod red. S. V. Yakovleva. 2-e izd., pererab. i dop. M.:«Litterra», 2015.
8. Yaminsky I. V., Demin V. V., Bondarenko V. M. Zhurn. mikrobiologii. – Journal of microbiology. 1997;6:15-18.
9. Binnig G., Quate C. F., Gerber Ch. Phys Rev Lett. 1986;6(59):930-933.
10. Bondareva N. I., Timchenko L. D., Rzhepakovsky I. V. Res. J. Pharm., Biol. Chem. Sci. (RJPBCS). 2016;7(6):1224- 1230.
11. Finberg R. V., Moellering R. C., Tally F. P. Clin. Infect. Dis. 2004;(39):1314-1320.
12. Fuhrmann A., Ros R. Nanomedicine. 2010;5(4):657-665.
13. Fuchs P. C., Jones R. N., Thornsberry C., Barry A. L., Gerlach E. H., Sommers H. M. Antimicrob. Agents Chemother. 1981;20(6):747-759.
18. Volle C. B., Ferguson M. A., Aidala K. E., Spain E. M., Nunez M. E. Coll. Surf. B Biointerfaces. 2008;67(1): 32-40.
19. Saranya S., Hemashenpagam N. Sci. Res. 2011;2(4): 528-534.
20. Smirnova M. V., Lubenko I. Yu. Intern. J. Antimicrobial Agents. 2007;29(2):165-169.

matches: V. V. V. V. V. V.


Argued Feb. 15 and 16, 1967.
Luke McKissack, Los Angeles, Cal., for petitioner.
Norman H. Sokolow and William E. James, Los Angeles, Cal., for respondent.
This case was argued with United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and presents the same alleged constitutional error in the admission in evidence of in-court identifications there considered. In addition, petitioner alleges constitutional errors in the admission in evidence of testimony of some of the witnesses that they also identified him at the lineup, in the admission of handwriting exemplars taken from him after his arrest, and in the admission of out-of-court statements by King, a co-defendant, mentioning petitioner's part in the crimes, which statements, on the co-defendant's appeal decided with petitioner's, were held to have been improperly admitted against the codefendant. Finally, he alleges that his Fourth Amendment rights were violated by a police seizure of photographs of him from his locked apartment after entry without a search warrant, and the admission of testimony of witnesses that they identified him from those photographs within hours after the crime.
Petitioner was convicted in the Superior Court of California of the armed robbery of the Mutual Savings and Loan Association of Alhambra and the murder of a police officer who entered during the course of the robbery. There were separate guilt and penalty stages of the trial before the same jury, which rendered a guilty verdict and imposed the death penalty. The California Supreme Court affirmed, 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365. We granted certiorari, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003, and set the case for argument with Wade and with Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. If our holding today in Wade is applied to this case, the issue whether admission of the in-court and lineup identifications is constitutional error which requires a new trial could be resolved on this record only after further proceedings in the California courts. We must therefore first determine whether petitioner's other contentions warrant any greater relief.
Petitioner was arrested in Philadelphia by an FBI agent and refused to answer questions about the Alhambra robbery without the advice of counsel. He later did answer questions of another agent about some Philadelphia robberies in which the robber used a handwritten note demanding that money be handed over to him, and during that interrogation gave the agent the handwriting exemplars. They were admitted in evidence at trial over objection that they were obtained in violation of petitioner's Fifth and Sixth Amendment rights. The California Supreme Court upheld admission of the exemplars on the sole ground that petitioner had waived any rights that he might have had not to furnish them. '(The agent) did not tell Gilbert that the exemplars would not be used in any other investigation. Thus, even if Gilbert believed that his exemplars would not be used in California, it does not appear that the authorities improperly induced such belief.' 63 Cal.2d, at 78, 47 Cal.Rptr., at 920, 408 P.2d, at 376. The court did not, therefore, decide petitioner's constitutional claims.
We pass the question of waiver since we conclude that the taking of the exemplars violated none of petitioner's constitutional rights.
First. The taking of the exemplars did not violate petitioner's Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of 'an accused's communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers,' and not 'compulsion which makes a suspect or accused the source of 'real or physical evidence' * * *.' Schmerber v. State of California, 384 U.S. 757, 763—764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One's voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, 388 U.S., at 222—223, 87 S.Ct., at 1929—1930. No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
Second. The taking of the exemplars was not a 'critical' stage of the criminal proceedings entitling petitioner to the assistance of counsel. Putting aside the fact that the exemplars were taken before the indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate from his right to a fair trial. Cf. United States v. Wade, supra. If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for analysis and comparison by government and defense handwriting experts. Thus, 'the accused has the opportunity for a meaningful confrontation of the (State's) case at trial through the ordinary processes of cross-examination of the (State's) expert (handwriting) witnesses and the presentation of the evidence of his own (handwriting) experts.' United States v. Wade, supra, 388 U.S., at 227—228, 87 S.Ct., at 1932—1933.
Petitioner contends that he was denied due process of law by the admission during the guilt stage of the trial of his accomplice's pretrial statements to the police which referred to petitioner 159 times in the course of reciting petitioner's role in the robbery and murder. The statements were inadmissible hearsay as to petitioner, and were held on King's aspect of this appeal to be improperly obtained from him and therefore to be inadmissible against him under California law. 63 Cal.2d, at 699 701, 47 Cal.Rptr., at 914—915, 408 P.2d, at 370—371.
Petitioner would have us reconsider Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (where the Court held that appropriate instructions to the jury would suffice to prevent prejudice to a defendant from the references to him in a co-defendant's statement), at least as applied to a case, as here, where the co-defendant gained a reversal because of the improper admission of the statements. We have no occasion to pass upon this contention. The California Supreme Court has rejected the Delli Paoli rationale, and relying at least in part on the reasoning of the Delli Paoli dissent, regards cautionary instructions as inadequate to cure prejudice. People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265. The California court applied Aranda in this case but held that any error as to Gilbert in the admission of King's statements was harmless. The harmless-error standard applied was that, 'there is no reasonable possibility tha t he error in admitting King's statements and testimony might have contributed to Gilbert's conviction,' a standard derived by the court from our becision in Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.1 Fahy was the basis of our holding in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and the standard applied by the California court satisfies the standard as defined in Chapman.
It may be that the California Supreme Court will review the application of its harmless-error standard to King's statements if on the remand the State presses harmless error also in the introduction of the in-court and lineup identifications. However, this at best implies an ultimate application of Aranda and only confirms that petitioner's argument for reconsideration of Delli Paoli need not be considered at this time.
The California Supreme Court rejected Gilbert's challenge to the admission of certain photographs taken from his apartment pursuant to a warrantless search. The court justified the entry into the apartment under the circumstances on the basis of so-called 'hot pursuit' and 'exigent circumstances' exceptions to the warrant requirement. We granted certiorari to consider the important question of the extent to which such exceptions may permit warrantless searches without violation of the Fourth Amendment. A closer examination of the record than was possible when certiorari was granted reveals that the facts do not appear with sufficient clarity to enable us to decide that question. See Appendix to this opinion; compare Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. We therefore vacate certiorari on this issue as improvidently granted. The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 184, 79 S.Ct. 710, 713, 3 L.Ed.2d 723.
THE IN-COURT AND LINEUP IDENTIFICATIONS.
Three eyewitnesses to the Alhambra crimes who identified Gilbert at the guilt stage of the trial had observed him at a lineup conducted without notice to his counsel in a Los Angeles auditorium 16 days after his indictment and after appointment of counsel. The manager of the apartment house in which incriminating evidence was found, and in which Gilbert allegedly resided, identified Gilbert in the courtroom and also testified, in substance, to her prior lineup identification on examination by the State. Eight witnesses who identified him in the courtroom at the penalty stage were not eyewitnesses to the Alhambra crimes but to other robberies allegedly committed by him. In addition to their in-court identifications, these witnesses also testified that they identified Gilbert at the same lineup.
At the guilt stage, after the first witness, a cashier of the savings and loan association, identified Gilbert in the courtroom, defense counsel moved, out of the presence of the jury, to strike her testimony on the ground that she identified Gilbert at the pretrial lineup conducted in the absence of counsel in violation of the Sixth Amendment made applicable to the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. He requested a hearing outside the presence of the jury to present evidence supporting his claim that her in-court identification was, and others to be elicited by the State from other eyewitnesses would be, 'predicated at least in large part upon their identification or purported identification of Mr. Gilbert at the showup. * * *' The trial judge denied the motion as premature. Defense counsel then elicited the fact of the cashier's lineup identification on cross-examination and again moved to strike her identification testimony. Without passing on the merits of the Sixth Amendment claim, the trial judge denied the motion on the ground that, assuming a violation, it would not in any event entitle Gilbert to suppression of the in-court identification. Defense counsel thereafter elicited the fact of lineup identifications from two other eyewitnesses who on direct examination identified Gilbert in the courtroom. Defense counsel unsuccessfully objected at the penalty stage, to the testimony of the eight witnesses to the other robberies that they identified Gilbert at the lineup.
The admission of the in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error. United States v. Wade, supra. We there held that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup. However, as in Wade, the record does not pemi t an informed judgment whether the in-court identifications at the two stages of the trial had an independent source. Gilbert is therefore entitled only to a vacation of his conviction pending the holding of such proceedings as the California Supreme Court may deem appropriate to afford the State the opportunity to establish that the incourt identifications had an independent source, or that their introduction in evidence was in any event harmless error.
Quite different considerations are involved as to the admission of the testimony of the manager of the apartment house at the guilt phase and of the eight witnesses at the penalty stage that they identified Gilbert at the lineup.3 That testimony is the direct result of the illegal lineup 'come at by exploitation of (the primary) illegality.' Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup. In the absence of legislative regulations adequate to avoid the hazards to a fair trial which inhere in lineups as presently conducted, the desirability of deterring the constitutionally objectionable practice must prevail over the undesirability of excluding relevant evidence. Cf. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. That conclusion is buttressed by the consideration that the witness' testimony of his lineup identification will enhance the impact of his in-court identification on the jury and seriously aggravate whatever derogation exists of the accused's right to a fair trial. Therefore, unless the California Supreme Court is 'able to declare a belief that it was harmless beyond a reasonable doubt,' Chapman v. State of California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, Gilbert will be entitled on remand to a new trial or, if no prejudicial error is found on the guilt stage but only in the penalty stage, to whatever relief California law affords where the penalty stage must be set aside.
The judgment of the California Supreme Court and the conviction are vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered.
Judgment and conviction vacated and case remanded with directions.
Photographs of Gilbert introduced at the guilt stage of the trial had been viewed by eyewitnesses within hours after the robbery and murder. Officers had entered his apartment without a warrant and found them in an envelope on the top of a bedroom dresser. The envelope was of the kind customarily used in delivering developed prints, with the words 'Marlboro Photo Studio' imprinted on it. The officers entered the apartment because of information given by an accomplice which led them to believe that one of the suspects might be inside the apartment. Assuming that the warrantless entry into the apartment was justified by the need immediately to search for the suspect, the issue remains whether the subsequent search was reasonably supported by those same exigent circumstances. If the envelope were come upon in the course of a search for the suspect, the answer might be different from that where it is come upon, even though in plain view, in the course of a general, indiscriminate search of closets, dressers, etc., after it is known that the occupant is absent. Still different considerations may be presented where officers, pursuing the suspect, find he is absent from the apartment but conduct a limited search for suspicious objects in plain view which might aid in the pursuit. The problem with the record in the present case is that it could reasonably support any of these factual conclusions upon which our constitutional analysis should rest, and the trial court made no findings on the scope of search. The California Supreme Court, which had no more substantial basis upon which to resolve the conflict than this Court, stated that the photos were come upon 'while the officers were looking through the apartment for their suspect. * * *' As will appear, a contrary conclusion is equally reasonable.
(1) Agent schlatter testified that immediately upon entering the apartment which he put at 'approximately 1:05,' the officers made a quick search for the occupant, which took at most a minute, and that the continued presence of the officers became 'a matter of a stake-out under the assumption that the person or persons involved would come back.' He testified that the officer who found the photographs, Agent Crowley, had entered the apartment with him. Agent Schlatter's testimony might support the California Supreme Court's view of the scope of search; (2) Agent Crowley testified that he arrived within five minutes after Agent Schlatter, 'around 1:30, give or take a few minutes either way,' that the apartment had already been searched for the suspects, and that he was instructed 'to look through the apartment for anything we could find that we could use to identify or continue the pursuit of this person without conducting a detailed search.' Crowley's further testimony was that the search pursuant to which the photos were found, was limited in this manner, and that he merely inspected objects in plain sight which would aid in identification. He stated that a detailed search for guns and money was not conducted until after a warrant had issued over three hours later. (3) Agent Townsend said he arrived at the apartment 'sometime between perhaps 1:30 and 2:00,' and that 'well within an hour' he, Agent Crowley, another agent and a local officer conducted a detailed search of the bedroom H e stated that they 'looked through the bedroom closet and dresser and I think * * * the headstand.' A substantial sum of money was found in the dresser. Townsend could not 'specifically say' whether Crowley was in the bedroom at the time the money was found. This testimony might support a finding that the officers were engaged in a general search of the bedroom at the time the photos were found.
The testimony of the agents concerning their time of arrival in the partment is not inconsistent with any of the three possible conclusions as to the scope of search. Taking Townsend's testimony together with Crowley's, it can be concluded that the two arrived at about the same time. Agent Schlatter's testimony that Crowley arrived with him at 1:05, however, supports a conclusion that Crowley had begun his activities before Townsend arrived. Then there is the testimony of Agent Kiel, who did not enter the apartment, that he obtained the photos while talking with the landlady 'approximately 1:25 to 1:30,' about the same time that both Crowley and Townsend testified they arrived. In sum, the testimony concerning the timing of the events surrounding that search is both approximate and itself contradictory.
Petitioner was convicted of robbery and murder partially on the basis of handwriting samples he had given to the police while he was in custody without counsel and partially on evidence that he had been identified by eyewitnesses at a lineup identification ceremony held by California officers in a Los Angeles auditorium without notice to his counsel. The Court's opinion shows that the officers took Gilbert to the auditorium while he was a prisoner, formed a lineup of Gilbert and other persons, required each one to step forward, asked them certain questions, and required them to repeat certain phrases, while eyewitnesses to this and other crimes looked at them in efforts to identify them as the criminals. At his trial, Gilbert objected to the handwriting samples and to the identification testimony given by witnesses who saw him at the auditorium lineup on the ground that the admission of this evidence would violate his Fifth Amendment privilege against self-incrimination and Sixth Amendment right to counsel. It is well-established now that the Fourteenth Amendment makes both the Self-Incrimination Clause of the Fifth Amendment and the Right to Counsel Clause of the Sixth Amendment obligatory on the States. See, e.g., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.
(a) Relying on Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the Court rejects Gilbert's Fifth Amendment contention as to both the handwriting exemplars and the lineup identification. I dissent from that holding. For reasons set out in my separate opinion in United States v. Wade, 388 U.S., p. 243, 87 S.Ct., p. 1941, as well as in my dissent to Schmerber, 384 U.S., at 773, 86 S.Ct., at 1837, I think that case wholly unjustifiably detracts from the protection against compelled self-incrimination the Fifth Amendment was designed to afford. It rests on the ground that compelling a suspect to submit to or engage in conduct the sole purpose of which is to supply evidence against himself nonetheless does not compel him tobe a witness against himself. Compelling a suspect or an accused to be 'the source of 'real or physical evidence' * * * ,' so says Schmerber, 384 U.S., at 764, 86 S.Ct., at 1832, is not compelling him to be a witness against himself. Such an artificial distinction between things that are in reality the same is in my judgment wholly out of line with the liberal construction which should always be given to the Bill of Rights. See Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746.
(b) The Court rejects Gilbert's right-to-counsel contention in connection with the handwriting exemplars on the ground that the taking of the exemplars 'was not a 'critical' stage of the criminal proceedings entitling petitioner to the assistance of counsel.' In all reality, however, it was one of the most 'critical' stages of the government proceedings that ended in Gilbert's conviction. As to both the State's case and Gilbert's defense, the handwriting exemplars were just as important as the lineup and perhaps more so, for handwriting analysis, being, as the Court notes, 'scientific' and 'systematized,' United States v. Wade, 388 U.S., at 227, 87 S.Ct., at 1932, may carry much more weight with the jury than any kind of lineup identification. The Court, however, suggests that absence of counsel when handwriting exemplars are obtained will not impair the right of cross-examination at trial. But just as nothing said in our previous opinions 'links the right to counsel only to protection of Fifth Amendment rights,' United States v. Wade, ante, 388 U.S., at 226, 87 S.Ct., at 1932, nothing has been said which justifies linking the right to counsel only to the protection of other Sixth Amendment rights. And there is nothing in the Constitution to justify considering the right to counsel as a secondclass, subsidiary right which attaches only when the Court deems other specific rights in jeopardy. The real basis for the Court's holding that the stage of obtaining hadwriting exemplars is not 'critical,' is its statement that 'there is minimal risk that the absence of counsel might derogate from his right to a fair trial.' The Court considers the 'right to a fair trial' to be the overriding 'aim of the right to counsel,' United States v. Wade, at 226, 87 S.Ct., at 1932, and somehow believes that this Court has the power to balance away the constitutional guarantee of right to counsel when the Court believes it unnecessary to provide what the Court considers a 'fair trial.' But I think this Court lacks constitutional power thus to balance away a defendant's absolute right to counsel which the Sixth and Fourteenth Amendments guarantee him. The Framers did not declare in the Sixth Amendment that a defendant is entitled to a 'fair trial,' nor that he is entitled to counsel on the condition that this Court thinks there is more than a 'minimal risk' that without a lawyer his trial will be 'unfair.' The Sixth Amendment settled that a trial without a lawyer is constitutionally unfair, unless the courtcreated balancing formula has somehow changed it. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, I thought finally established the right of an accused to counsel without balancing of any kind.
The Court's holding here illustrates the danger to Bill of Rights guarantees in the use of words like a 'fair trial' to take the place of the clearly specified safeguards of the Constitution. I think it far safer for constitutional rights for this Court to adhere to constitutional language like 'the accused shall * * * have the Assistance of Counsel for his defence' instead of substituting the words not mentioned, 'the accused shall have the assistance of counsel only if the Supreme Court thinks it necessary to assure a fair trial.' In my judgment the guarantees of the Constitution with its Bill of Rights provide the kind of 'fair trial' the Framers sought to protect. Gilbert was entitled to have the 'assst ance of counsel' when he was forced to supply evidence for the Government to use against him at his trial. I would reverse the case for this reason also.
I agree with the Court that Gilbert's case should not be reversed for state error in admitting the pretrial statements of an accomplice which referred to Gilbert. But instead of squarely rejecting petitioner's reliance on the dissent in Delli Paoli v. United States, 352 U.S. 232, 246, 77 S.Ct. 294, 1 L.Ed.2d 278, the Court avoids the issue by pointing to the fact that the California Supreme Court, even assuming the error to be a federal constitutional one, applied a harmless-error test which measures up to the one we subsequently enunciated in Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. And the Court then goes on to suggest that the California Supreme Court may desire to reconsider whether that is so upon remand.
I think the Court should clearly indicate that neither Delli Paoli nor Chapman has any relevance here. Delli Paoli rested on the admissibility of evidence in federal, not state, courts. The introduction of evidence in state courts is exclusively governed by state law unless its introduction would violate some federal constitutional provision and there is no such federal provision here. See Spencer v. State of Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. That being so, any error in admitting the accomplice's pretrial statements is only an error of state law, and Chapman, providing a federal constitutional harmless-error rule, has absolutely no relevance here. Instead of looking at the harmless-error test applied by the California Supreme Court in order to ascertain whether it comports with Chapman, I would make it clear that this Court is leaving to the States their unbridled power to control their own state courts in the absence of conflicting federal constitutional provisions.
One witness who identified Gilbert at the guilt stage of his trial and eight witnesses who identified him at the penalty stage testified on direct examination that they had identified him in the auditorium lineup. I agree with the Court that the admission of this testimony was constitutional error and that Gilbert is entitled to a new trial unless the state courts, applying Chapman, conclude that this error was harmless. However, these witnesses also identified Gilbert in the courtroom and two other witnesses at the guilt stage identified him solely in the courtroom. As to these, the Court holds that '(t) he admission of the in-court identifications without first determining that they were not tainted by the illegal lineup * * * was constitutional error.' I dissent from this holding in this case and in United States v. Wade, 388 U.S., p. 243, 87 S.Ct., p. 1941, for the reasons there given.
While I agree with the Court's opinion except for Part I,** (as respects which I agree with Mr. Justice BLACK and Mr. Justice FORTAS), I would reverse and remand for a new trial on the search and seizure point. The search of the petitioner's home is sought to be justified by the doctrine of 'hot pursuit,' even though the officers conducting the search knew that petitioner, the suspected criminal, was not at home.
At about 10:30 a.m. on January 3, 1964, a California bank was robbed by two armed men; a police officer was killed by one of the robbers. Another officer shot one of the robbers, Weaver, who was captured a few blocks from the scene of the crime. Weaver told the police that he had participated in the robbery and that a person known to him as 'Skinny' Gilbert was his accomplice. He told the officers that Gilbert lived in Apartment 28 of 'a Hawaiian sounding named apartment house' on Los Feliz Boulevard. This information was given to the Federal Bureau of Investigation and was broadcast to a field agent, Kiel, who was instructed to find the apartment. Kiel located the 'Lanai,' an apartment on Los Feliz Boulevard, at about 1 p.m., informed the radio control, and engaged the apartment manager in conversation. While they were talking, a man gave a key to the manager and told her that he was going to San Francisco for a new days. Agent Kiel learned from the manager that Flood, one of the two men who had rented Apartment 28 the previous day, was the man who had just turned in the key and left by the rear exit. The agent ran out into the alleyway but saw no one.
In the meantime, the federal officers learned from Weaver that Gilbert was registered under the name of Flood. They also learned that three men may have been involved in the robbery—the two who entered the bank and a third driving the getaway car. About 1:10 p.m., additional federal agents arrived at the apartment, in response to Agent Kiel's radio summons. Kiel told them that the resident of Apartment 28 was a Robert Flood who had just left. The agents obtained a key from the manager, entered the apartment and searched for a person or a hiding place for a person. They found no one. But they did find an envelope containing pictures of petitioner; the pictures were seized and shown to bank employees for identification. The agents also found a notebook containing a diagram of the area surrounding the bank, a clip from an automatic pistol, and a bag containing rolls of coins bearing the marking of the robbed bank. On the basis of this information, a search warrant was issued, and the automatic clip, notebook, and coin rolls were seized. Petitioner was arrested in Pennsylvania on February 26. The items seized during the search of his apartment were introduced in evidence at his trial for murder.
The California Supreme Court justified the search on the ground that the police were in not pursuit of the suspected bank robbers. The entry of the apartment was lawful. The subsequent search and seizure was lawful since the officers were trying to further identify suspects and to facilitate continued pursuit. 63 Cal.2d 690, 47 Cal.Rptr. 909, 408 P.2d 365.
I have set forth the testimony relating to the search more fully in the Appendix to this opinion. For the reasons stated there, I cannot agree that 'the facts do not appear with sufficient clarity to enable us to decide' the serious question presented.
Since the search and seizure took place without a warrant, it can stand only if it comes within one of the narrowly defined exceptions to the rule that a search and seizure must rest upon a validly executed search warrant. See, e.g. United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514; Rios v. United States, 364 U.S. 253 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688; Stoner v. State of California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856. One of these exceptions is that officers having probable cause to arrest may enter a dwelling to make the arrest and conduct a contemporaneous search of the place of arrest 'in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody.' Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145. This, of course, assumes that an arrest has been made, and that the search 'is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest.' Stoner v. State of California, supra, 376 U.S. at 486, 84 S.Ct. at 891. In this case, the exemption is not applicable since the arrest was made many days after the search and at a location far removed from the search.
Here, the officers entered the apartment, searched for petitioner and did not find him. Nevertheless, they continued searching the apartment and seized the pictures; the inescapable conclusion is that they were searching for evidence linking petitioner to the bank robbery, not for the suspected robbers. The court below said that, having legally entered the apartment, the officer 'could properly look through the apartment for anything that could be used to identify the suspects or expedite the pursuit.' 63 Cal.2d, at 707, 47 Cal.Rptr., at 919, 408 P.2d, at 375.
Prior to this case, police could enter and search a house without a warrant only incidental to a valid arrest. If this judgment stands, the police can search a house for evidence, even though the suspect is not arrested. The purpose of the search is, in the words of the California Supreme Court, 'limited to and incident to the purpose of the officers' entry'—that is, to apprehend the suspected criminal. Under that doctrine, the police are given license to search for any evidence linking the homeowner with the crime. Certainly such evidence is well calculated 'to identify the suspects,' and will 'expedite the pursuit' since the police can then concentrate on the person whose home has been ransacked. Ibid.
Indeed, if at the very start, there had been a search warrant authorizing the seizure of the automatic clip, notebook, and coin rolls, the envelope containing pictures of petitioner could not have been seized. 'The requirement that warrants shall particularly describe the things to be seized * * * prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.' Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231.
'The practice had obtained in the colonies of issuing writs of assistance to the revenue officers empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental prnciples of law, that ever was found in an English and the fundamental principles of law, liberty of every man in the hands of every petty officer.' This was in February, 1761, in Boston, and the famous debate in which it occurred was perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country. 'Then and there,' said John Adams, 'then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born."
Agent Kiel testified that Agents Schlatter and Onsgaard arrived at the apartment at about 1:10 and entered the apartment in a minute or two after their arrival. Kiel received the photographs from Agent Schlatter between 1:25 and 1:30.
Agent Schlatter testified that he, Agent Onsgaard and some local police arrived at the apartment about 1:05 and that Agent Crowley and one or two local police officers arrived in another car at the same time. Schlatter briefly talked to Kiel and the apartment manager and then entered the apartment. Upon entering he saw no oe. He 'made a very fast search of the apartment for (a) person or a hiding place of a person and * * * found none.' This search took 'a matter of seconds or a minute at the outside' and '(a)fter we had searched for a person or persons, and no one was there, it then became a matter of a stakeout under the assumption that the person or persons involved would come back.' It seemed to Schlatter that 'an agent had (the photograph) in his hand,' when he first saw it, that it 'was in the hands of an agent or an officer,' and Schlatter had 'a vague recollection that (the agent or officer told him he had found it) in the bedroom * * *.' There were a number of photographs. Schlatter took the photographs out to Kiel and instructed him to take one of them to the savings and loan association and see if anyone there could recognize the photograph. Schlatter testified that he was in the apartment for about 30 minutes after making the search and left other agents behind when he left.
Agent Crowley testified that he entered the apartment 'around 1:30, give or take a few minutes either way' and that he would say that the other officers had been in the apartment less than five minutes before he entered. He believed that 'the officers and the other agent who had been with (him) at the rear of the building when the first entry was made, entered with (him).' When Crowley entered the apartment it 'had already been searched for people.' He received 'instructions * * * to look through the apartment for anything we could find that we could use to identify or continue the pursuit of this person without conducting a detailed search.' In the bedroom, on the dresser, Crowley saw an envelope bearing the name 'Marlboro Photo Studio'; it appeared to him to be an envelope containing photos and he could see that there was something inside. Crowley opened the envelope and saw several copies of photographs. He discussed the matter with 'Onsgaard who was in charge in the building and he instructed (Crowley) to give it to another agent for him to utilize in pursuing the investigation, and (he was) reasonably certain that that agent was Mr. Schlatter.' This was about 1:30 according to Crowley. In the course of his search which turned up the photographs, Crowley 'turned over (items) to see what was on the reverse, such as business cards, sales slips from local stores, that sort of item which might have been folded and would appear to possibly contain information of value to pursuit.' He relayed the information obtained in this manner to the man coordinating the operation. Crowley remained in the apartment until the next morning.
Agent Townsend testified that he arrived at the apartment '(s)ometime between perhaps 1:30 and 2:00.' Within an hour of his arrival, he began a search. Townsend testified that he, Agent Crowley, another agent and a local officer 'looked through the bedroom closet and the dresser and I think the headstand.' This was after it was known that no one, other than agents and police officers, was in the apartment. Townsend stated that the agents and officers were '(i)n and out of the bedroom,' that he found money in the bedroom dresser about an hour after he arrived in the apartment, and that he could not 'say specifically' whether Crowley was there at that time.
Thus, there is some conflict regarding the times at which the events took place and with respect to the nature of the searches conducted by the various officers. The way I read the record, however, it is not in such a state 'that the facts do not appear with sufficient clarity to enable us to decide' the question presented. Crowley's testimony that he came upon the photographs while searching 'for anything * * * that we could use to identify or continue the pursuit' stands uncontradicted, as does his testimony that the apartment had already been searched for a person prior to his search uncovering the photographs. Schlatter's testimony that the operation 'became a matter of a stake-out' after the unsuccessul search for a person does not contradict Crowley's testimony. A search for identifying evidence is certainly compatible with a 'stake-out.' And Crowley best knew what he was doing when he discovered the photographs. Nor does Townsend's testimony that he and others, perhaps including Crowley, conducted a detailed search conflict with Crowley's testimony. First, the record indicates that the detailed search was conducted after the photographs had been found. According to the testimony of Kiel and Schlatter, Schlatter gave the photographs to Kiel at about 1:30; according to Townsend, he arrived sometime between 1:30 and 2. Second, even if the detailed search took place before Crowley found the photographs and Crowley participated in that search, that does not indicate that Crowley's search which turned up the photographs was more limited than Crowley claimed. If anything, it would indicate that his search was more general than he stated. Finally, Townsend's testimony as to the general search does not conflict with Schlatter's testimony that the operation became a 'stake-out' after the suspect was not found. As I have said, a 'stake-out' does not preclude a detailed search for evidence. And, the record indicates that Schlatter was not in the apartment when Townsend and the others conducted the detailed search.
The way I read the record, the photographs were discovered in the course of a general search for evidence. But even if Crowley is not believed and his testimony relating to the nature of his search is thrown out and it is simply assumed that he came upon the envelope in the course of a search for the suspect, there was no reason to pry into the envelope and seize the pictures—other than to obtain evidence. An envelope would contain neither the suspect nor the weapon.
I concur in Parts I, II, and III of the Court's opinion, but for the reasons stated in my separate opinion in United States v. Wade, 386 U.S. 250, 87 S.Ct. 1944, 18 L.Ed.2d 1170, I dissent from Part IV of the Court's opinion and would therefore affirm the judgment of the Supreme Court of California.
I concur in the result—the vacation of the judgment of the California Supreme Court and the remand of the case—but I do not believe that it is adequate. I would reverse and remand for a new trial on the additional ground that petitioner was entitled by the Sixth and Fourteenth Amendments to be advised that he had a right to counsel before and in connection with his response to the prosecutor's demand for a handwriting exemplar.
1. The giving of a handwriting exemplar is a 'critical stage' of the proceeding, as my Brother BLACK states. It is a 'critical stage' as much as is a lineup. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149. Depending upon circumstances, both may be inoffensive to the Constitution, totally fair to the accused, and entirely reliable for the administration of justice. On the other hand, each may be constitutionally offensive, totally unfair to the accused, and prejudicial to the ascertainment of truth. An accused whose handwriting exemplar is sought needs counsel: Is he to write 'Your money or your life?' Is he to emulate the holdup note by using red ink, brown paper, large letters, etc? Is the demanded handwriting exemplar, in effect, an inculpation—a confession? Cf. the eloquent arguments as to the need for counsel, in the Court's opinion in United States v. Wade, supra.
2. The Court today appears to hold that an accused may be compelled to give a handwriting exemplar. Cf. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Presumably, he may be punished if he adamantly refuses. unlike blood, handwriting cannot be extracted by a doctor from an accused's veins while the accused is subjected to physical restraint, which Schmerber permits. So presumably, on the basis of the Court's decision, trial courts may hold an accused in contempt and keep him in jail—indefinitely—until he gives a handwriting exemplar.
This decision goes beyond Schmerber. Here the accused, in the absence of any warning that he has a right to counsel, is compelled to cooperate, not merely to submit; to engage in a volitional act, not merely to suffer the inevitable consequences of arrest and state custody; to take affirmative action which may not merely identify him, but tie him directly to the crime. I dissented in Schmerber. For reasons stated in my separate opinion in United States v. Wade, supra, I regard the extension of Schmerber as impermissible.
In Wade, the accused, who is compelled to utter the words used by the criminal in the heat of his act, has at least the comfort of counsel—even if the Court denies that the accused may refuse to speak the words—because the compelled utterance occurs in the course of a lineup. In the present case, the Court deprives him of even this source of comfort and whatever protection counsel's ingenuity could provide in face of the Court's opinion. This is utterly insupportable, in my respectful opinion. This is not like fingerprinting, measuring, photographing—or even blood-taking. It is a process involving the use of discretion. It is capable of abuse. It is in the stream of inculpation. Cross-examination can play only a limited role in offsetting false inference or misleading coincidence from a 'stacked' handwriting exemplar. The Court's reference to the efficacy of cross-examination in this situation is much more of a comfort to an appellate court than a source of solace to the defendant and his counsel.
3. I agree with the Court's condemnation of the lineup identifications here and the consequent in-court identifications, and I join in this part of its opinion. I would also reverse and remand for a new trial because of the use of the handwriting exemplars which were unconstitutionally obtained in the absence of advice to the accused as to the availability of counsel. I could not conclude that the violation of the privilege against self-incrimination implicit in the facts relating to the exemplars was waived in the absence of advice as to counsel. In re Gault, 387 U.S. 1, 38—39, 87 S.Ct. 1428, 1449—1450, 18 L.Ed.2d 527 (1967); Miranda v. State of Arizona, 384 U.S. 436, 8 § .Ct. 1602, 16 L.Ed.2d 694 (1966).
The California Supreme Court also held that '* * * the (erroneous) admission of King's statements at the trial on the issue of guilt was not prejudicial on the question of Gilbert's penalty,' again citing Fahy, 63 Cal.2d, at 702, 47 Cal.Rptr., at 916, 408 P.2d, at 372.
'The lineup occurred on March 26, 1964, after Gilbert had been indicted and had obtained counsel. It was held in an auditorium used for that purpose by the Los Angeles police. Some ten to thirteen prisoners were placed on a lighted ta ge. The witnesses were assembled in a darkened portion of the room, facing the stage and separated from it by a screen. They could see the prisoners but could not be seen by them. State and federal officers were also present and one of them acted as 'moderator' of the proceedings.
'Evidence of an extra-judicial identification is admissible, not only to corroborate an identification made at the trial (People v. Slobodion, 31 Cal.2d 555, 560, 191 P.2d 1), but as independent evidence of identity. Unlike other testimony that cannot be corroborated by proof of prior consistent statements unless it is first impeached * * * evidence of an extra-judicial identification is admitted regardless of whether the testimonial identification is impeached, because the earlier identification has greater probative value than an identification made in the courtroom after the suggestions of others and the circumstances of the trial may have intervened to create a fancied recognition in the witness' mind. * * * The failure of the witness to repeat the extra-judicial identification in court does not destroy its probative value, for such failure may be explained by loss of memory or other circumstances. The extra-judicial identification tends to connect the defeda nt with the crime, and the principal danger of admitting hearsay evidence is not present since the witness is available at the trial for cross-examination.' New York deals with the subject in a statute. See N.Y.Code Crim.Proc. § 393 b.
The Court dismisses as improvidently granted the Fourth Amendment search-and-seizure question raised by Gilbert in this case. I dissent from this, because I would decide that question against Gilbert. However, since the Court refuses to decide that question, I see no reason for expressing my views at length.
On that phase of the case I agree with Mr. Justice BLACK and Mr. Justice FORTAS.