1 See Massiah v. United States, 377 U.S. 201, 204–05 (1964); Gideon v. Wainwright, 372 U.S. 335, 342 (1963).
2 See U.S. Const. amend. VI.
3 See, e.g., Powell v. Alabama, 287 U.S. 45, 69 (1942).
4 See Massiah, 377 U.S. at 205; Spano v. New York, 360 U.S. 315, 321 (1959); Powell, 287 U.S. at 69; see also Spano, 360 U.S. at 326 (Douglas, J., concurring).
5 See Massiah, 377 U.S. at 206; Spano, 360 U.S. at 326 (Douglas, J., concurring).
6 See Spano, 360 U.S. at 321.
7 See, e.g., Brewer v. Williams, 430 U.S. 387, 399 (1977); Massiah, 377 U.S. at 206.
8 See, e.g., Kuhlmann v. Wilson, 477 U.S. 436, 457–59 (1986); United States v. Henry, 447 U.S. 264, 273–74 (1980).
9 See Wilson, 477 U.S. at 439–40; Henry, 447 U.S. at 266–69; Jana Winograde, Jailhouse Informants and the Need for Judicial Use Immunity in Habeas Corpus Proceedings, 78 Cal. L. Rev. 755, 755–56 (1990).
10 See Henry, 447 U.S. at 274.
11 See, e.g., United States v. Brink, 39 F.3d 419, 422–24 (3d Cir. 1994) (broadly defining the right to counsel in the jailhouse informant context); Commonwealth v. Franciscus, 710 A.2d 1112, 1118–20 (Pa. 1998) (same); see also United States v. York, 933 F.2d 1343, 1357–60 (7th Cir. 1991) (giving a narrower reading to the right to counsel in the jailhouse informant context).
12 Wilson, 477 U.S. at 439–40, 459; Henry, 447 U.S. at 266–69, 274–75.
13 447 U.S. at 274–75.
14 See id.
15 477 U.S. at 459; see Bruce D. Lundstrom, Sixth Amendment—Right to Counsel: Limited Postindictment Use of Jailhouse Informants is Permissible—Kuhlmann v. Wilson, 106 S. Ct. 2616 (1986), 77 J. Crim. L. & Criminology 743, 743–44 (1986).
16 See, e.g., State v. Leopardi, 701 A.2d 952, 956 (N.J. Super. Ct. App. Div. 1997) (lamenting the court’s own “difficulty in reconciling” jailhouse informant cases); Richard T. Saas, Constitutional Rights of the Accused—Sixth Amendment Right to Counsel—Admissibility of Incriminating Statements Obtained by Passive Jailhouse Informants—Kuhlmann v. Wilson, 106 S. Ct. 2616, 54 Tenn. L. Rev. 105, 125 n.223 (1986) (commenting that “‘struggled’ may be a kind word” to use to describe courts’ difficulties in defining the right to counsel in undercover situations); Louis D. Lappen, Note, A Reconciliation of Henry and Wilson: The Intersection of Constitutional Rights with Procedural Review, 1987 Duke L.J. 945, 953.
17 See infra notes 284–314 and accompanying text.
18 See infra notes 26–40 and accompanying text.
19 See infra notes 41–101 and accompanying text.
20 See infra notes 102–227 and accompanying text.
21 See infra notes 110–192 and accompanying text.
22 See infra notes 193–227 and accompanying text.
23 See infra notes 228–272 and accompanying text.
24 See infra notes 228–272 and accompanying text; see also, e.g., Lundstrom, supra note 15, at 748; James J. Tomkovicz, An Adversary System Defense of the Right to Counsel Against Informants: Truth, Fair Play, and the Massiah Doctrine, 22 U.C. Davis L. Rev. 1, 78–81 (1988).
25 See infra notes 273–314 and accompanying text.
26 U.S. Const. amend. VI.
27 Gideon v. Wainwright, 372 U.S. 335, 342–46 (1963) (holding that the right to counsel is so fundamental a right that it is an integral part of due process, and thus the Sixth Amendment guarantee applies to state criminal proceedings via the Fourteenth Amendment).
28 Lundstrom, supra note 15, at 748.
29 See, e.g., Maine v. Moulton, 474 U.S. 159, 170 (1985); Massiah v. United States, 377 U.S. 201, 205 (1964); Powell v. Alabama, 287 U.S. 45, 69 (1932); Saas, supra note 16, at 109 n.48 (1986).
30 See Escobedo v. Illinois, 378 U.S. 478, 492 (1964).
31 287 U.S. 45, 71 (1932); see Saas, supra note 16, at 109.
32 Powell, 287 U.S. at 49–50, 57.
33 Id. at 71–73.
34 Id. at 57.
35 Id. at 69.
36 Id. at 57.
37 Saas, supra note 16, at 109 n.48.
38 368 U.S. 52, 54 (1961).
39 388 U.S. 218, 228 (1967); see Tomkovicz, supra note 24, at 13 n.53.
40 See 378 U.S. at 484–85, 492.
41 See Massiah, 377 U.S. at 206; Spano v. New York, 360 U.S. 315, 325–26 (1958) (Douglas, J., concurring).
42 See Escobedo, 378 U.S. at 485; Welsh S. White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich. L. Rev. 1209, 1209–10 (1980).
43 See Spano, 360 U.S. at 324.
44 See Massiah, 377 U.S. at 206; Spano, 360 U. S. at 324.
45 See 360 U.S. at 324–26.
46 Id. at 325–26 (Douglas, J., concurring).
47 Id. at 316.
48 Id. at 316–17.
49 Id. at 317.
50 Spano, 360 U.S. at 317–20. Spano was questioned almost continuously from 7:15 p.m. until 4:05 a.m. Id.
51 Id. at 317–18.
52 Id. at 319. At around 11:00 p.m., interrogators convinced a friend of Spano, a cadet in the police academy at the time, to use deceptive tactics to convince Spano that making a confession was in his best interest. See id. at 317–19. He eventually succumbed to these requests and confessed at approximately 3:30 a.m. Id. at 319.
53 Id. at 320.
54 Id. at 324.
55 Spano, 360 U.S. at 325 (Douglas, J., concurring).
56 Id. (Douglas, J., concurring).
57 Id. at 326 (Douglas, J., concurring).
58 Id. at 325–26 (Douglas, J., concurring).
59 See Massiah, 377 U.S. at 206; White, supra note 42, at 1210. Although various definitions exist for what exactly constitutes “surreptitious” or “undercover” interrogation, for the purposes of this Note the term is meant to connote any type of police attempt to elicit incriminating statements from an accused party in which the accused is unaware that he is talking to a government agent. See Saas, supra note 16, at 108 n.32.
60 See Spano, 360 U.S. at 321; White, supra note 42, at 1210–11.
61 See White, supra note 42, at 1211.
62 See Brewer v. Williams, 430 U.S. 387, 399 (1977); Massiah, 377 U.S. at 206.
63 See Tomkovicz, supra note 24, at 79–81.
64 See Massiah, 377 U.S. at 206; Spano, 360 U.S. at 321.
65 377 U.S. at 206; see Lundstrom, supra note 15, at 749.
66 377 U.S. at 206.
67 Id.
68 See id.; Tomkovicz, supra note 24, at 13–14, 17.
69 See Kuhlmann v. Wilson, 477 U.S. 436, 457, 459 (1986); Moulton, 474 U.S. at 172–73; United States v. Henry, 447 U.S. 264, 270 (1980); Brewer, 430 U.S. at 401; Lundstrom, supra note 15, at 749–50.
70 377 U.S. at 201–02.
71 Id.
72 Id.
73 Id. at 202–03.
74 Id. at 203.
75 Massiah, 377 U.S. at 203.
76 Id. at 205–07.
77 Id. at 206. “‘[I]f such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse.’” Id. (quoting United States v. Massiah, 307 F.2d 62, 72 (2d Cir. 1962) (Hays, J., dissenting), rev’d, 377 U.S. 201 (1964)).
78 April Lee Ammeter, Comment, Kuhlmann v. Wilson: “Passive” and “Active” Government Informants—A Problematic Test, 72 Iowa L. Rev. 1423, 1426 (1987).
79 Massiah, 377 U.S. at 206.
80 See id.
81 Id.
82 See id. The Massiah dissent saw the issue in a completely different light. Joined by two other members of the Court, Justice White expressed concerns that the majority opinion had created a rule which would bar the use of important evidence in criminal cases. See id. at 208 (White, J., dissenting). In Justice White’s view, the case simply involved a defendant who, at his own risk, chose to speak to a friend about a crime, who later decided to disclose what he had heard. Id. at 208, 211–12 (White, J., dissenting).
83 Brewer, 430 U.S. at 399–400.
84 Id. at 399.
85 Id. at 390.
86 Id. at 390–91.
87 Id.
88 Brewer, 430 U.S. at 391.
89 Id. at 392–93.
90 Id. at 392–93, 399. The detective said:
I want to give you something to think about while we’re traveling down the road. . . . They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is . . . . And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl . . . .
Id. at 392–93.
91 Id. at 393.
92 Id. at 394.
93 Brewer, 430 U.S. at 400–01.
94 Id. at 398 (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)).
95 Id. at 399.
96 Id. at 400.
97 Id. at 400.
98 Brewer, 430 U.S. at 400–01.
99 See id. at 399–401.
100 See id.; Massiah, 377 U.S. at 206; Spano, 360 U.S. at 325–26 (Douglas, J., concurring); supra notes 45–99 and accompanying text.
101 See Brewer, 430 U.S. at 400–01; Massiah, 377 U.S. at 206; Spano, 360 U.S. at 325–26 (Douglas, J., concurring).
102 See Kuhlmann v. Wilson, 477 U.S. 436, 458–59 (1986); United States v. Henry, 447 U.S. 264, 273–75 (1980).
103 See Wilson, 477 U.S. at 439–40; Henry, 447 U.S. at 266; Robert M. Bloom, Jailhouse Informants, Crim. Just., Spring 2003, at 20, 20–21; Winograde, supra note 9, at 755–56.
104 See Wilson, 477 U.S. at 439–40; Henry, 447 U.S. at 266.
105 See Henry, 447 U.S. at 266; Winograde, supra note 9, at 755–56.
106 See, e.g., Massiah v. United States, 377 U.S. 201, 202 (1964) (turncoat accomplice); Spano v. New York, 360 U.S. 315, 323 (1959) (deception by friend).
107 See Wilson, 477 U.S. at 456–59; Henry, 447 U.S. at 274–75.
108 See Henry, 447 U.S. at 274.
109 See id.
110 Wilson, 477 U.S. at 459; Henry, 447 U.S. at 274–75.
111 Maine v. Moulton, 474 U.S. 159, 176–77 (1985); Tomkovicz, supra note 24, at 20.
112 See Moulton, 474 U.S. at 176.
113 Henry, 447 U.S. at 270, 274–75.
114 Id. at 265–66.
115 Id. at 266.
116 Id.
117 Id. The agent later submitted an affidavit in which he stated “I specifically recall telling Nichols that he was not to question Henry . . . . I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges.” Id. at 268.
118 Henry, 447 U.S. at 266.
119 See id. at 266–67.
120 Id.
121 Id. at 266 n.2. These requests indicate the level of trust that Henry had in Nichols as a confidant. See id.
122 Id. at 266.
123 Henry, 447 U.S. at 266.
124 Id. at 267.
125 Id.
126 Id.
127 Id. at 267–68.
128 Henry, 447 U.S. at 268–69; Henry v. United States, 590 F.2d 544, 547 (4th Cir. 1978), aff’d, 447 U.S. 264 (1980).
129 Henry, 447 U.S. at 269 (citing Henry, 590 F.2d at 547).
130 Id. at 275.
131 Id. at 274.
132 See id.; Massiah, 377 U.S. at 206.
133 See 447 U.S. at 274.
134 Id. at 273; Massiah, 377 U.S. at 206.
135 See Henry, 447 U.S. at 273.
136 See id. at 270–75.
137 Id. at 270.
138 Id. at 270–71.
139 See id. at 271 n.8.
140 See Henry, 447 U.S. at 271 n.8. This is because when a government agent mentions a particular inmate’s name to an informant, it becomes quite obvious at that point that the government must have some interest in obtaining information from him or her. See id.
141 See id. at 273–75.
142 Id. at 274.
143 Id.
144 Henry, 447 U.S. at 273.
145 See Henry, 590 F.2d at 547.
146 See Henry, 447 U.S. at 273–75.
147 Id. at 274 n.12. The Court stated that “Nichols had managed to become more than a casual jailhouse acquaintance. That Henry could be induced to discuss his past crime is hardly surprising . . . .” Id.
148 See id. at 273–74.
149 See id.
150 See id.; Ammeter, supra note 78, at 1428–29.
151 See Henry, 447 U.S. at 266, 273–75.
152 See id. at 274; Ammeter, supra note 78, at 1428–29.
153 Henry, 447 U.S. at 274.
154 Id. at 274–75 (citation omitted) (quoting People v. DeFore, 242 N.Y. 13, 21 (1926)).
155 Id. In dissent, Justice Blackmun disputed the majority’s conclusion that “subtle influences” would make it likely that statements would be made in a jail cell setting. Id. at 284–85 (Blackmun, J., dissenting). Justice Blackmun argued that there was just as much pressure for a defendant not to speak, because it should be obvious to any detainee that a jail is generally not filled with trustworthy characters. Id. (Blackmun, J., dissenting).
Justice Rehnquist, dissenting separately, was even more dismissive of the right-to-counsel concerns in this case. See id. at 289–302 (Rehnquist, J., dissenting). Justice Rehnquist argued that there was no constitutional support for the idea that an attorney must be present at any stage where an accused party might reveal information to someone trying to elicit it. Id. at 295–96 (Rehnquist, J., dissenting). Echoing the speak-at-your-own-risk approach to the right to counsel espoused by Justice White in Massiah, Justice Rehnquist wrote, “[W]hen an accused voluntarily chooses to make an incriminatory remark . . . he knowingly assumes the risk that his confidant may be untrustworthy.” Id. at 297–98 (Rehnquist, J., dissenting).
156 See Wilson, 477 U.S. at 459; Lundstrom, supra note 15, at 744.
157 447 U.S. at 271 n.9.
158 477 U.S. at 456.
159 Id. at 456, 460–61. It is important to note that in neither Henry nor Wilson was it clear from the record what exactly had transpired between the defendants and informants. See id. at 439–40; Henry, 447 U.S. at 266–67. Although the records in both cases described the relationships between the parties in broad strokes, neither contains extensive discussions of any actual conversations that had taken place between the defendants and informants. See Wilson, 477 U.S. at 439–40; Henry, 447 U.S. at 266–67.
160 See Wilson, 477 U.S. at 459; Ammeter, supra note 78, at 1440.
161 477 U.S. at 438–39.
162 Id. at 439. Coincidentally, Wilson’s jail cell overlooked the scene of the crime. Id.
163 Id.
164 Id.
165 Id.
166 Wilson, 477 U.S. at 440.
167 Id. During this period of time, Wilson’s brother visited Wilson in jail. Id. He told Wilson that his family was upset because they believed that he had committed the murder. Id. This may have had some effect on Wilson’s decision to change his story and tell the truth. Id.
168 Id.
169 Id. at 441.
170 Id. at 442–43.
171 Wilson v. Henderson, 742 F.2d 741, 745, 748 (2d Cir. 1984), rev’d and remanded sub nom. Kuhlmann v. Wilson, 477 U.S. 436 (1986). Examining Lee’s relationship with Wilson, the Court of Appeals concluded that:
[s]ubtly and slowly, but surely, Lee’s ongoing verbal intercourse with Wilson served to exacerbate Wilson’s already troubled state of mind . . . . The instant case cannot be held to be equivalent to one where an informant merely sits back and makes no effort to stimulate conversations with the suspect about the crime charged . . . . In fact, we conclude that Henry is indistinguishable from the present case.
Id. at 745 (citation omitted).
172 Wilson, 477 U.S. at 456, 459.
173 Id. at 456–59; see Henry, 447 U.S. at 273–75; Massiah, 377 U.S. at 206; Spano, 360 U.S. at 325–36 (Douglas, J., concurring).
174 Wilson, 477 U.S. at 459.
175 Id.
176 Id.
177 Id. at 473–76 (Brennan, J., dissenting).
178 Id. at 475–76 (Brennan, J., dissenting).
179 Wilson, 477 U.S. at 476 (Brennan, J., dissenting). In the majority’s view, Lee acted primarily as a listener in his interactions with Wilson, and the immediate cause of Wilson’s admissions was his own unsolicited decision to make them. See id. at 460–61.
180 Id. (Brennan, J., dissenting).
181 Id. (Brennan, J., dissenting).
182 See id. (Brennan, J., dissenting).
183 See Wilson, 477 U.S. at 476 (Brennan, J., dissenting).
184 See Ammeter, supra note 78, at 1440; Lundstrom, supra note 15, at 743–44.
185 Wilson, 477 U.S. at 459; see Lappen, supra note 16, at 946.
186 See Ammeter, supra note 78, at 1434.
187 See Wilson, 477 U.S. at 439–40; Henry, 447 U.S. at 266–69; White, supra note 42, at 1219.
188 See Wilson, 477 U.S. at 459; Henry, 447 U.S. at 474–75; Lappen, supra note 16, at 953–54.
189 See Wilson, 477 U.S. at 459; Tomkovicz, supra note 24, at 20.
190 See Wilson, 477 U.S. at 459; Tomkovicz, supra note 24, at 20.
191 Tomkovicz, supra note 24, at 20.
192 Tomkovicz, supra note 24, at 20 (emphasis added).
193 See 474 U.S. at 176–77.
194 Id. at 171–76.
195 Id. at 171.
196 See id.; Tomkovicz, supra note 24, at 18–20.
197 474 U.S. at 162. Coincidentally, the informant in this case had the same surname as the informant in Massiah. See Massiah, 377 U.S. at 202–03.
198 Moulton, 474 U.S. at 162–63.
199 Id. at 163–64.
200 Id. at 164–65.
201 Id. at 166.
202 Id. Colson made remarks to Moulton such as “I want you to help me with some dates. One date I . . . just can’t remember . . . what night did we break into Lothrop Ford?” Id. at 166 n.5.
203 Moulton, 474 U.S. at 166.
204 Id. at 166–67.
205 Id. at 167–68 (citing State v. Moulton, 481 A.2d 155 (Me. 1984), aff’d sub nom. Maine v. Moulton, 474 U.S. 159 (1985)).
206 See id. at 180.
207 See id. at 176.
208 See Moulton, 474 U.S. at 176.
209 Id. at 171 (emphasis added).
210 See id.
211 Id. at 176.
212 Id.
213 See Moulton, 474 U.S. at 176.
214 Id. at 176–77 n.13–14.
215 See id.
216 See id. at 177.
217 Id.
218 See 474 U.S. at 177; Tomkovicz, supra note 24, at 18.
219 Moulton, 474 U.S. at 176 n.12 (citing Henry, 447 U.S. at 271).
220 Id. at 176–77.
221 See id.
222 See id. at 171, 176.
223 See id.; Tomkovicz, supra note 24, at 18.
224 See Wilson, 477 U.S. at 436; Moulton, 474 U.S. at 176–77.
225 See Wilson, 477 U.S. at 459; Henry, 447 U.S. at 274–75. As discussed previously, Wilson purported to decide a jailhouse informant question different than that of Henry, meaning that Henry was in no way overturned by Wilson. See supra notes 156–160 and accompanying text.
226 See Wilson, 477 U.S. at 459; Moulton, 474 U.S. at 180; Henry, 447 U.S. at 274–75; Tomkovicz, supra note 24, at 20.
227 Some courts have relied primarily upon Wilson in right-to-counsel cases involving jailhouse informants. See, e.g., Moore v. United States, 178 F.3d 994, 1000 (8th Cir. 1999) (declining to examine deliberate elicitation issue in the absence of any evidence that the informant himself had engaged defendant in conversation); United States v. York, 933 F.2d 1343, 1359 (7th Cir. 1991) (finding no deliberate elicitation by an informant in a murder case, in spite of informant having had conversations with the accused about the crime). But see, e.g., United States v. Brink, 39 F.3d 419, 424 (3d Cir. 1994) (finding that because government agents were aware that the informant in the case had a “propensity to inform on his cellmates,” the mere act of placing him in the cell with the defendant could constitute deliberate elicitation in violation of his right to counsel); Commonwealth v. Franciscus, 710 A.2d 1112, 1119 (Pa. 1998) (holding that in a jailhouse informant case, the court’s focus should be on whether the government met its “affirmative obligation” not to circumvent an accused’s right to counsel). For a taste of the difficulty courts are having in reaching decisions on this difficult issue, see State v. Leopardi, 701 A.2d 952, 956 (N.J. Super. Ct. App. Div. 1997), which reviews jailhouse informant case law and states that “candor requires us to confess our difficulty in reconciling several of these decisions,” including Henry and Wilson.
228 See Kuhlmann v. Wilson, 477 U.S. 436, 458–59 (1986); United States v. Henry, 447 U.S. 264, 273–75 (1980); see also supra notes 184–192 and accompanying text.
229 Henry, 447 U.S. at 274. As discussed, these factors include the unique pressures of incarceration, the desire to form jail cell camaraderie, and the perception of a common foe, the government. See supra notes 141–146 and accompanying text.
230 See generally Ammeter, supra note 78; Lundstrom, supra note 15; Saas, supra note 16; Tomkovicz, supra note 24; Lappen, supra note 16.
231 See, e.g., Ammeter, supra note 78, at 1440; Lundstrom, supra note 15, at 743–44; Tomkovicz, supra note 24, at 80–81.
232 See, e.g., Ammeter, supra note 78, at 1440; Lundstrom, supra note 15, at 743–44; Tomkovicz, supra note 24, at 80–81.
233 See Wilson, 477 U.S. at 459–60; Henry, 447 U.S. at 274.
234 477 U.S. at 459.
235 See, e.g., Ammeter, supra note 78, at 1434; Lundstrom, supra note 15, at 743–44; Tomkovicz, supra note 24, at 80.
236 See Lappen, supra note 16, at 946.
237 See id. at 951–52, 962.
238 Id. at 951–52.
239 See id. at 952.
240 Id.
241 See Lappen, supra note 16, at 952.
242 See, e.g., Lundstrom, supra note 15, at 764.
243 See Wilson, 477 U.S. at 458–61; Lundstrom, supra note 15, at 764.
244 See Lappen, supra note 16, at 953.
245 See Lundstrom, supra note 15, at 744, 763.
246 See, e.g., Ammeter, supra note 78, at 1437–38.
247 See id. at 1434.
248 See Tomkovicz, supra note 24, at 79–80.
249 See Ammeter, supra note 78, at 1437–38.
250 See id.; Tomkovicz, supra note 24, at 79–80.
251 See Tomkovicz, supra note 24, at 80–81.
252 See Ammeter, supra note 78, at 1434.
253 Id. at 1435.
254 Id.; see 477 U.S. at 459–60, 476 (Brennan, J., dissenting).
255 Ammeter, supra note 78, at 1435–36.
256 Id.
257 Id. at 1436.
258 Id.
259 See, e.g., id. at 1434; Lundstrom, supra note 15, at 743–44; Tomkovicz, supra note 24, at 83.
260 See Ammeter, supra note 78, at 1434.
261 See id.
262 See id. at 1440.
263 See 477 U.S. at 459; Ammeter, supra note 78, at 1437.
264 See Ammeter, supra note 78, at 1437.
265 See id. at 1437–38; Tomkovicz, supra note 24, at 80–81.
266 See Henry, 447 U.S. at 274; Tomkovicz, supra note 24, at 79–80.
267 See Henry, 447 U.S. at 273–74; Lundstrom, supra note 15, at 767.
268 See Ammeter, supra note 78, at 1436–38.
269 See Saas, supra note 16, at 126–27.
270 See, e.g., Ammeter, supra note 78, at 1437–38; Lundstrom, supra note 15, at 773–74; Tomkovicz, supra note 24, at 79–81.
271 See 477 U.S. at 459.
272 See id.; Lundstrom, supra note 15, at 769.
273 See 477 U.S. 436, 459 (1986); Lundstrom, supra note 15, at 744.
274 See United States v. Henry, 447 U.S. 264, 274 (1980); Ammeter, supra note 78, at 1437.
275 See Maine v. Moulton, 474 U.S. 159, 176 (1985); Tomkovicz, supra note 24, at 79–80.
276 477 U.S. at 459.
277 See supra notes 259–268 and accompanying text.
278 Tomkovicz, supra note 24, at 80–81.
279 See supra notes 259–265 and accompanying text.
280 Moulton, 474 U.S. at 176; see supra notes 206–213 and accompanying text.
281 See id.; Tomkovicz, supra note 24, at 80.
282 See Wilson, 477 U.S. at 459.
283 See id.; Moulton, 474 U.S. at 176; Tomkovicz, supra note 24, at 80; see also supra notes 259–265 and accompanying text.
284 See Wilson, 477 U.S. at 476 (Brennan, J., dissenting); Henry, 447 U.S. at 274.
285 See Wilson, 477 U.S. at 459.
286 Id.
287 See Wilson, 477 U.S. at 475–76 (Brennan, J., dissenting); Ammeter, supra note 78, at 1437–38.
288 See Moulton, 474 U.S. at 176; Henry, 447 U.S. at 273–74; see also supra notes 136–155 and accompanying text.
289 See Wilson, 477 U.S. at 475–76 (Brennan, J., dissenting); see also supra notes 177–183 and accompanying text.
290 See Wilson, 477 U.S. at 459; Henry, 447 U.S. at 274.
291 See Ammeter, supra note 78, at 1434–38.
292 See Wilson, 477 U.S. at 459; Henry, 447 U.S. at 274.
293 See Ammeter, supra note 78, at 1440; see also supra notes 59–155 and accompanying text.
294 See Wilson, 477 U.S. at 459.
295 Id.
296 Id.; see also supra notes 284–289 and accompanying text.
297 See id.
298 See id.; Lundstrom, supra note 15, at 766–67.
299 See Lundstrom, supra note 15, at 766–67.
300 See Henry, 447 U.S. at 273–74; Lundstrom, supra note 15, at 767.
301 See Ammeter, supra note 78, at 1437; see also supra notes 246–258 and accompanying text.
302 See Henry, 447 U.S. at 272 n.8; Lundstrom, supra note 15, at 766–67.
303 See Tomkovicz, supra note 24, at 79–80.
304 See Henry, 447 U.S. at 274; Ammeter, supra note 78, at 1438–39.
305 See Wilson, 477 U.S. at 475–76 (Brennan, J., dissenting); Ammeter, supra note 78, at 1438–39.
306 See Wilson, 477 U.S. at 475–76 (Brennan, J., dissenting); Tomkovicz, supra note 24, at 79.
307 Henry, 447 U.S. at 273–74.
308 Id.
309 See Wilson, 477 U.S. at 459; Henry, 447 U.S. at 273–74; Lundstrom, supra note 15, at 766–67.
310 See Wilson, 477 U.S. at 475–76 (Brennan, J., dissenting); supra notes 263–268 and accompanying text.
311 See Henry, 447 U.S. at 273–75; supra notes 263–268 and accompanying text.
312 See id.; supra notes 284–293 and accompanying text.
313 See supra notes 31–82 and accompanying text.
314 See Wilson, 477 U.S. at 459; id. at 475–76 (Brennan, J., dissenting); Henry, 474 U.S. at 274–75.