Footnotes

INTRODUCTION

Chapter 1

1.   [Footnote by editors] This is no longer true. See further discussion following this opinion.

2.   Don’t take our word for it. Sir John Holt, the Lord Chief Justice of England, wrote in Ashby v. White (1703), “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.” 14 St. Tr. 695, 92 Eng. Rep. 126, 136. Fans of Latin put it this way: “ubi jus ibi remedium.”

3.   See Prison Policy Institute, “States of Incarceration: The Global Context 2021,” at https://www.prisonpolicy.org/global/2021.html.

4.   See Bureau of Justice Statistics, “Correctional Populations in the United States, 2020” (March 2022, NCJ 303184).

5.   See Sentencing Project, “Trends in U.S. Corrections.”

6.   See Bureau of Justice Statistics, “Prisoners in the United States” (December 2021, NCJ 302776).

7.   See US Census Bureau, “Quick Facts.”

8.   For arrest data, see U.S. Dep’t of Justice, “2019 Crime in the United States: Persons Arrested.”

9.   See Lara Bazelon, “A Mistake Has Been Made Here, and No One Wants to Correct It,” Slate (Dec. 17, 2013).

10.  See National Registry of Exonerations, “Kash Register.”

11.  See Richard Winton, “LAPD Settlements Soar as Officials Close the Books on High-Profile Lawsuits against Police Officers,” L.A. Times (May 9, 2017) (“The Los Angeles Police Department paid nearly $81 million in legal settlements last fiscal year.”); see also http://spreadsheets.latimes.com/lapd-settlements/ (database of settlements).

12.  See State ex rel. Koster v. Green 388 S.W.3d 603, (Mo. Ct. App.2012); National Registry of Exonerations, “George Allen, Jr.”

13.  As of July 3, 2022. See https://www.law.umich.edu/special/exoneration/Pages/about.aspx

14.  See Zusha Elinson & Dan Frosch, “Cost of Police-Misconduct Cases Soars in Big U.S. Cities,” Wall St. J. (July 15, 2015).

15.  See “How Chicago Racked Up a $662 Million Police Misconduct Bill,” Associated Press (Mar. 20, 2016).

16.  See John Byrne, “Aldermen to Consider Paying $6 Million to Settle Lawsuits Alleging Chicago Police Misconduct,” Chi. Tribune (June 22, 2018).

17.  See Mark Puente, “Undue Force,” Balt. Sun (Sept. 28, 2014).

18.  See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y 2013).

19.  See Missouri Attorney General’s Office, “Vehicle Stops Report.”

20.  Homicide is the best measure of crime rates. The definition has remained fairly constant over time (and from place to place), and homicide is generally noticed and recorded. Data for crimes such as rape and theft are far less reliable.

21.  See Jeffrey Fagan & Daniel Richman, Understanding Recent Spikes and Longer Trends in American Murders, 117 Colum. L. Rev. 1235, 1260 (2017).

22.  See FBI, “Crime in the United States 2016.”

23.  See, e.g., Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not, 18 J. Econ. Perspectives 163 (2004); Adam Gopnik, “The Great Crime Decline,” New Yorker (Feb. 12 & 19, 2018).

24.  See Ben Trachtenberg, Choosing a Criminal Procedure Casebook: On Lesser Evils and Free Books, 60 St. Louis U. L.J. 543, 552 (2016) (“I hope authors and money can be found to create excellent, inexpensive books and thereby reduce the cost of legal education.”).

25.  44 Am. L. Rev. 12, 16-17 (1910) (“Here the law in the books is settled and defined. The law administered is very different.”).

THE FOURTH AMENDMENT

Chapter 2

1.   [Court’s footnote 3 in concurrence] The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.

Chapter 3

1.   [Footnote 1 by the Court] “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” A pen register is “usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line” to which it is attached.

Chapter 4

1.   [Footnote 2 by the Court] The plurality’s use of the FAA regulations as a means for determining whether Riley enjoyed a reasonable expectation of privacy produces an incredible result. Fixed-wing aircraft may not be operated below 500 feet (1,000 feet over congested areas), while helicopters may be operated below those levels. Therefore, whether Riley’s expectation of privacy is reasonable turns on whether the police officer at 400 feet above his curtilage is seated in an airplane or a helicopter. This cannot be the law.

Chapter 5

1.   [Footnote 7 by the Court] I should take care myself to reserve judgment about a possible case significantly unlike this one. All of us are concerned not to prejudge a claim of authority to detect explosives and dangerous chemical or biological weapons that might be carried by a terrorist who prompts no individualized suspicion. Suffice it to say here that what is a reasonable search depends in part on demonstrated risk. Unreasonable sniff searches for marijuana are not necessarily unreasonable sniff searches for destructive or deadly material if suicide bombs are a societal risk.

Chapter 6

1.   [Footnote 2 by the Court] Because probable cause is an objective standard, an arrest is lawful if the officer had probable cause to arrest for any offense, not just the offense cited at the time of arrest or booking. Because unlawful entry is the only offense that the District and its officers discuss in their briefs to this Court, we likewise limit our analysis to that offense.

2.   See Eric Black, “Driving While Black: GOP Sen. Tim Scott Tells of His Experiences,” Minn. Post (July 14, 2016); Conor Friedersdorf, “The Senate’s Only Black Republican Opens Up About Being Mistreated by Cops,” Atlantic (July 15, 2016).

3.   See, e.g., David A. Harris, “The Stories, the Statistics, and the Law: Why ‘Driving While Black’ Matters,” 84 Minn. L. Rev. 265 (1999); State v. Soto, 734 A.2d 350 (N.J. Super. 1996); Consent Decree, Wilkins v. Maryland State Police, No. 93–468 (D.Md. Apr. 22, 2003).

Chapter 7

1.   [Footnote by editors] We have removed the Court’s Fifth Amendment analysis.

2.   [Footnote 10 by the Court] Petitioner also suggests that the specific list of the documents to be seized constitutes a “general” warrant. We disagree. Under investigation was a complex real estate scheme whose existence could be proved only by piecing together many bits of evidence. Like a jigsaw puzzle, the whole “picture” of petitioner’s false-pretense scheme with respect to Lot 13T could be shown only by placing in the proper place the many pieces of evidence that, taken singly, would show comparatively little. The complexity of an illegal scheme may not be used as a shield to avoid detection when the State has demonstrated probable cause to believe that a crime has been committed and probable cause to believe that evidence of this crime is in the suspect’s possession.

3.   [Footnote 11 by the Court] We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. Similar dangers, of course, are present in executing a warrant for the “seizure” of telephone conversations. In both kinds of searches, responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.

4.   See Banks at 38, n. 5 (collecting cases).

5.   See Radley Balko, “No-Knock Raids like the one against Paul Manafort are more Common than You Think,” Wash. Post (Aug. 10, 2017).

6.   [Footnote by editors] Balko is referring to drug crimes and illegal gambling—or, more generally, crimes with no apparent “victim.”

7.   Radley Balko, Rise of the Warrior Cop xi-xii (2013).

8.   Id. at 183; see also Radley Balko, “How Little Rock’s Illegal Police Raids Validate the Exclusionary Rule,” Wash. Post (Oct. 19, 2018) (reporting routine issuance of no-knock warrants despite lack of any specific information in application about “why the suspect named in the warrant merited a no-knock raid”).

Chapter 8

1.   [Footnote by editors] A Lawful Permanent Resident, also known as a “green card” holder, is a non-citizen authorized to live permanently within the United States.

2.   See Devallis Rutledge, “Serving the Search Warrant,” Police (Mar. 2, 2016).

3.   See NYPD, Legal Bureau Bulletin, Vol. 43, No. 3 (Nov. 2013).

4.   See P.M. ex rel. Whitworth v. Bolinger, No. 2:10–CV–04208–NKL, 2011 WL 5838406 (W.D. Mo. Nov. 21, 2011) (describing the search and its aftermath in detail).

5.   See Brennan David, “Burton Touts Restrictive Policy,” Colum. Tribune (May 11, 2010).

Chapter 9

1.   See Washington v. Chrisman, 455 U.S. 1, 5–6 (1982).

2.   [Footnote ** by the court] Part[] II-C of this opinion [is] joined only by Mr. Justice DOUGLAS, Mr. Justice BRENNAN, and Mr. Justice MARSHALL.

3.   Jay-Z, “99 Problems,” The Black Album (Roc-A-Fella Records 2003)

4.   Caleb Mason, Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps, 56 St. Louis U. L.J. 567, 581 (2012)

5.   [Footnote 3 by the Court] We need not pass on the application of the vehicle exception to a motor home that is situated in a way or place that objectively indicates that it is being used as a residence. Among the factors that might be relevant in determining whether a warrant would be required in such a circumstance is its location, whether the vehicle is readily mobile or instead, for instance, elevated on blocks, whether the vehicle is licensed, whether it is connected to utilities, and whether it has convenient access to a public road.

Chapter 10

1.   This sort of search is sometimes abbreviated “SITA” for “Search Incident To Arrest.” This book uses “SILA” to emphasize that only “lawful” arrests trigger the exception.

2.   For opinions reviewing the relevant precedent in some detail and reaching opposite conclusions, see, e.g., People v. Cregan, 10 N.E.3d 1196 (Ill. 2014) (allowing such a search); id. at 1210 (Burke, J., dissenting) (arguing the majority misread Supreme Court precedent).

Chapter 11

1.   [Footnote by editors] We will consider these factors later in the semester, when studying the Court’s regulation of interrogations pursuant to the Fifth, Sixth, and Fourteenth Amendments.

2.   [Footnote by editors] The Court’s decision in Illinois v. Rodriguez, 497 U.S. 177 (1990), is discussed briefly in the notes following this case.

Chapter 12

1.   [Footnote by editors] Valid consent would have justified entry even absent exigent circumstances. During post-conviction proceedings, the appellate courts decided that because they found exigent circumstances, they did not need to determine whether consent existed. Accordingly, only exigent circumstances was before the Court.

2.   In a brief concurring opinion, Chief Justice Roberts noted that nothing in the Court’s decision in Caniglia cast doubt on the prior holdings in Brigham City and Fisher.

Chapter 13

1.   [Footnote by editors] Part II-C of Justice Sotomayor’s opinion, which responds to the arguments raised by Chief Justice Roberts and is not reprinted here, had the support of only four justices. Justice Kennedy, who concurred in the result, wrote separately to argue that “this case does not call for the Court to consider in detail the issue discussed in Part II-C and the separate opinion by” Roberts.

2.   [Footnote 1 by the Court] The state trial court never decided whether there was consent to the entry because it deemed decision of that issue unnecessary in light of its finding that exigent circumstances justified the warrantless arrest. For purposes of this decision, therefore, we assume that there was no valid consent to enter the petitioner’s home.

3.   See National Minimum Drinking Age Act of 1984, 98 Stat. 435; see also South Dakota v. Dole, 483 U.S. 203 (1987) (upholding constitutionality of act).

Chapter 14

1.   [Footnote by editors] “Border passes,” also known as “border crossing cards,” allow bearers entry into parts of the United States near the border for brief periods—less than 72 hours—and do not allow bearers to work.

2.   [Footnote 17 by the Court] Of the 820 vehicles referred to the secondary inspection area during the eight days surrounding the arrests involved in [Martinez-Fuerte’s case], roughly 20% contained illegal aliens. Thus, to the extent that the Border Patrol relies on apparent Mexican ancestry at this checkpoint, that reliance clearly is relevant to the law enforcement need to be served. [W]e [have] noted that “[t]he likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor …,” although we held that apparent Mexican ancestry by itself could not create the reasonable suspicion required for a roving-patrol stop. Different considerations would arise if, for example, reliance were put on apparent Mexican ancestry at a checkpoint operated near the Canadian border.

3.   [Footnote 4 in the opinion] Though today’s decision would clearly permit detentions to be based solely on Mexican ancestry, the Court takes comfort in what appears to be the Border Patrol practice of not relying on Mexican ancestry standing alone in referring motorists for secondary detentions. Good faith on the part of law enforcement officials, however, has never sufficed in this tribunal to substitute as a safeguard for personal freedoms or to remit our duty to effectuate constitutional guarantees. … Even if good faith is assumed, the affront to the dignity of American citizens of Mexican ancestry and Mexican aliens lawfully within the country is in no way diminished. The fact still remains that people of Mexican ancestry are targeted for examination at checkpoints and that the burden of checkpoint intrusions will lie heaviest on them.

4.   Otay Mesa was the port of entry through which Manuel Flores-Montano’s gas tank entered the United States.

Chapter 15

1.   [Citation by editors] United States v. Place, 462 U.S. 696 (1983) (assigned for Chapter 5).

2.   [Footnote by editors] Terry v. Ohio, 392 U.S.1 (1968), and Michigan v. Long, 463 U.S.1032 (1983) concern searches permitted under the “stop-and-frisk” doctrine, which we will cover later in the course.

3.   The authors thank Rachel Mitchell, who raised this issue while enrolled in Criminal Procedure at the University of Missouri School of Law during fall of 2018.

Chapter 17

1.   [Footnote 1 by the Court] As several witnesses testified at trial, the problem of “crack babies” was widely perceived in the late 1980’s as a national epidemic, prompting considerable concern both in the medical community and among the general populace.

2.   [Footnote by editors] In a footnote here, the Court listed the nine criteria, which included “No prenatal care,” “Previously known drug or alcohol abuse,” and “Unexplained congenital anomalies.”

3.   [Footnote by editors] The “special needs” doctrine has been invoked to permit searches “in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” One example is public school searches. Another is the search of the home of someone on probation, which is covered in our next chapter.

Chapter 18

1.   [Footnote by editors] Only three Justices joined Justice Kennedy in Part IV; that Part did not command a majority of votes. For the remainder of his opinion, four Justices joined Justice Kennedy, providing a majority.

2.   The authors thank Clinton Sinclair for permission to include his story in this book.

3.   For a discussion of how such zoning affects “nontraditional” families, see Rigel Oliveri, Single-Family Zoning, Intimate Association, and the Right to Choose Household Companions, 67 Fla. L. Rev. 1401 (2016).

Chapter 19

1.   [Footnote ** by the Court] THE CHIEF JUSTICE, Mr. Justice BLACKMUN, and Mr. Justice POWELL also join all but Part II-A of this opinion.

2.   [Footnote by editors] Only Justices Stewart and Rehnquist signed on to Part II-A of the opinion.

3.   [Footnote by editors] In two footnotes hanging from this paragraph, the dissent quoted from testimony indicating that, according to the officers, Mendenhall “was not free to leave” when officers asked her to accompany them to the office and to submit to a search of her person. In other words, had she tried to leave, officers would have detained her.

4.   The authors thank former student Christopher Thompson for bringing this case to our attention.

5.   [Footnote 1 by the Court] California conceded below that Officer Pertoso did not have the “reasonable suspicion” required to justify stopping Hodari. That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 (“The wicked flee when no man pursueth”). We do not decide that point here, but rely entirely upon the State’s concession.

6.   [Footnote by editors] The Court reaffirmed this principle in Torres v. Madrid, 592 U.S. ___ (2020), holding that when police shoot a motorist with intent to restrain, the physical force involved in the shooting counts as a “seizure” even if the motorist escapes.

7.   [Footnote by editors] The dissent’s discussion of searches incident to lawful arrest is no longer accurate. See Arizona v. Gant, 556 U.S. 332 (2009) (Chapter 10).

Chapter 20

1.   [Footnote by editors] Although the driving distance from LaGuardia airport to JFK is only about ten miles, those familiar with New York traffic realize that taking someone’s luggage from one of those airports to the other is nearly certain to cause significant inconvenience.

2.   [Footnote by editors] If the 20-minute stop was lawful, then the search of the vehicle was justified by the automobile exception because the odor of marijuana provided probable cause to believe drugs would be found.

3.   [Footnote by editors] The Magistrate Judge found that detention for the dog sniff was not independently supported by individualized suspicion. Because the Court of Appeals did not decide this question, the Supreme Court did not address the question and wrote that it could be considered on remand.

INTERROGATIONS

Chapter 22

1.   [Footnote 4 by the Court] Petitioner was mentally dull and “slow to learn” and was in the fifth grade when he became 15 years of age. Because of his age he was arbitrarily promoted to the seventh grade and soon thereafter quit school.

2.   [Footnote 1 by the Court] How this could be so when the attorney’s name, Tobias Russo, was concededly in the telephone book does not appear. The trial judge sustained objections by the Assistant District Attorney to questions designed to delve into this mystery.

3.   [Footnote ^† by the Court] Justice MARSHALL, Justice BRENNAN and Justice STEVENS join this opinion in its entirety; Justice SCALIA joins Parts I and II; and Justice KENNEDY joins Parts I and IV.

4.   [Footnote by editors] Note that Part III of the opinion is a dissent. Justice White would have preferred that “harmless-error” analysis never be allowed in cases involving the admission of involuntary confessions. But he could not obtain a majority for that position.

Chapter 24

1.   For more on this theme, see Eugene Volokh, The Mechanisms of the Slippery Slope, 116 Harv. L. Rev. 1026 (2003), and sources cited therein.

2.   See generally Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System (2019) (discussing how “what is a crime” affects the lives of millions).

3.   We are assuming for purposes of this discussion that critics of Miranda object only to impediments it places in the path of voluntary confessions, not involuntary confessions.

4.   See Paul Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387 (1996).

5.   See id. at 437-46.

6.   See Stephen Schulhofer, Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500 (1996).

7.   Id. at 502.

8.   Id. at 561.

9.   Id.

10.  Id. at 562.

11.  See George C. Thomas III & Richard A Leo, The Effects of Miranda v. Arizona: Embedded in Our National Culture?, 29 Crime & Justice 203 (2002).

12.  Id. at 246.

13.  Id. at 247.

14.  Benjamin A. Galatzer-Levy & Robert M. Galatzer-Levy, Ordinary Police Interrogation in the United States: The Destruction of Meaning and Persons: A Psychoanalytic-Ethical Investigation, 69 Am. Imago 57 (2012)

15.  Id. at 68.

16.  Id. at 73.

17.  See, e.g., Elizabeth Loftus, Eyewitness Testimony (1996); Douglas Starr, Remembering a Crime That You Didn’t Commit, New Yorker (Mar. 5, 2015) (reviewing studies of how easily false memories can be implanted during questioning).

Chapter 25

1.   [Footnote 7 by the Court] This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.

Chapter 27

1.   [Footnote 3 by the Court] During cross-examination by Mosley’s counsel at the evidentiary hearing, Detective Hill conceded that Smith in fact had not confessed but had “denied a physical participation in the robbery.”

2.   [Footnote 7 by the Court] We thus need not decide Edwards’ claim that the State deprived him of his right to counsel under the Sixth and Fourteenth Amendments.

Chapter 29

1.   See Arizona v. Roberson, 486 U.S. 675 (1988) (Chapter 27).

2.   See Akhil Amar, Double Jeopardy Law Made Simple, 106 Yale L. J. 1807 (1997).

Chapter 30

1.   [Footnote 11 by the Court] This is not to read a “custody” requirement, which is a prerequisite to the attachment of Miranda rights, into this branch of the Sixth Amendment. Massiah was in no sense in custody at the time of his conversation with his codefendant. Rather, we believe the fact of custody bears on whether the Government “deliberately elicited” the incriminating statements from Henry.

THE EXCLUSIONARY RULE

Chapter 31

1.   See Henry J. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal L. Rev. 929, 951 (1965).

2.   See William Yardley, “Dollree Mapp, Who Defied Police Search in Landmark Case, Is Dead,” N.Y. Times (Dec. 9, 2014).

3.   See Guido Calabresi, The Exclusionary Rule, 26 Harv. J. of L. & Pub. Pol’y 111, 112 (2003) (calling the rule “most responsible for the deep decline in privacy rights in the United States”).

4.   See id. at 113-18 (“I present this half-baked idea playing the role of an academic, rather than that of a judge”). Before being appointed to the U.S. Court of Appeals for the Second Circuit, Judge Calabresi was dean of Yale Law School.

5.   See Yale Kamisar, A Defense of the Exclusionary Rule, 15 Crim. L. Bull. 5 (1979).

6.   See id. at 5 n.4 (quoting Elkins v. United States, 364 U.S. 206, 222 (1960))

7.   Id. at 10-11.

8.   Id. at 11.

9.   Id.

10.  Id.

11.  Id. at 12.

12.  Id.

Chapter 32

1.   [Footnote by editors] See Illinois v. Krull, 480 U.S. 340, 348-49 (1987). We will review the “good faith” exception in greater detail in a subsequent chapter.

Chapter 35

1.   See Lego v. Twomey, 404 U.S. 477 (1972).

2.   Id. at 489.

3.   See Simmons v. United States, 390 U.S. 377, 394 (1968).

4.   See, e.g., Fed. R. Evid. 609(a)(1)(A); Mo. Rev. Stat. § 491.050 (“any prior criminal convictions may be proved to affect [a witness’s] credibility in a civil or criminal case”).

5.   See 42 U.S.C. § 1988(b); City of Riverside v. Rivera, 477 U.S. 561 (1986) (affirming significant fee award in case involving Fourth Amendment violations)

6.   See, e.g., Scott Lauck, “What’s a Sunshine Case Worth in Rural Missouri?,” Mo. Lawyers’ Weekly (Apr. 25, 2018) (describing fee award of $85 per hour for victorious lawyers who sued sheriff’s office under Sunshine Law for wrongfully withholding reports related to death of officer, and noting that defendant’s outside lawyer was paid at higher rate).

7.   See, e.g., Kristine Guerra, “Innocent Black Man Dragged from Bed, Punched, Arrested—and Awarded $18 by a Jury,” Wash. Post (Aug. 30, 2016).

8.   See, e.g., Tresa Baldas, “$37M awarded in Genesee Co. Police Beating Caught on Camera,” Detroit Free Press (Nov. 6, 2016).

THE RIGHT TO COUNSEL

Chapter 36

1.   The idea of applying Gideon only to cases at which a defendant faced a possible sentence of six months or more had its roots in cases about the right to trial by jury, which are discussed below.

2.   See Celeste Bott, “Court Rules Public Defender Can’t Appoint Missouri Governor as a Defense Attorney,” St. Louis Post-Dispatch (Aug. 25, 2016).

IDENTIFICATIONS

Chapter 38

1.   [Footnote by editors] Escobedo, which held that suspects have a right to counsel during interrogations under the Sixth Amendment, even before indictment or arraignment, is no longer good law on that point. For custodial interrogation before the right to counsel has attached, see Miranda and its line of cases. For questioning after the right to counsel has attached, see Massiah and its progeny.

2.   [Footnote 9 by the Court] Bean took the stand and testified that he and petitioner found Shard’s traveler’s checks and Social Security card two hours before their arrest strewn upon the ground in an alley.

Chapter 39

1.   [Footnote by editors] Stovall v. Denno, 388 U.S. 293 (1967), was decided on the same day as Wade and Gilbert and concerned a due process challenge to identification evidence. The Court stated that such challenges could succeed but that Stovall’s specific challenge failed. The Court discussed the facts of Stovall further in Part II of this opinion.

Chapter 40

1.   Although Perry v. New Hampshire (Chapter 39) was decided in 2012, it focused on the limited issue of third-party contributions to unreliable eyewitness identification (that is, behavior by non-state actors) and did not undertake a substantive or research-based review of the Court’s prior eyewitness identification cases decided under the Due Process Clause.

2.   [Footnote by editors] The Henderson court adopted much of the Special Master’s report. Students interested in reading the report in its entirety can find it here: https://www.physics.smu.edu/pseudo/Eyewitness/NJreport.pdf.

3.   [Footnote by editors] This presumption, made commonly by courts, might not survive scientific scrutiny.

CONFRONTING NEW CHALLENGES

Chapter 41

1.   [Footnote 4 by the Court] These exceptions relate to certain activities of communication common carriers and the Federal Communications Commission, and to specified situations where a party to the communication has consented to the interception.

2.   See 18 U.S.C. § 2515.

3.   See, e.g., Paul Kramer, “The Water Cure: Debating Torture and Counterinsurgency—a Century Ago,” New Yorker (Feb. 25, 2008).

4.   To understand our reticence, see, e.g., Korematsu v. United States, 323 U.S. 214 (1944); Richard Reeves, Infamy: The Shocking Story of the Japanese American Internment in World War II (2015); Eugene V. Rostow, The Japanese American Cases—A Disaster, 54 Yale L.J. 489 (1945) (showing great courage and clarity, well ahead of most other scholars); see also Debs v. United States, 249 U.S. 211 (1919).

5.   See 585 F.3d 559 (2009).

6.   130 S. Ct. 3409 (2010).