Kirby v. Illinois

406 U.S. 682 (1972)

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Nature of the Case

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Facts

Shard reported to the police that the previous day two men had robbed him on a Chicago street of a wallet containing, among other things, traveler's checks and a Social Security card. Two police officers stopped Kirby (D) and a companion, Ralph Bean. When asked for identification, D produced a wallet that contained three traveler's checks and a Social Security card, all bearing the name of Willie Shard. Papers with Shard's name on them were also found in Bean's possession. When asked to explain his possession of Shard's property, D first said that the traveler's checks were 'play money,' and then told the officers that he had won them in a crap game. D and Bean were arrested and taken to a police station. Only after arriving at the police station, and checking the records there, did the arresting officers learn of the Shard robbery. Shard was brought to the police station. Immediately upon entering the room in the police station where D and Bean were seated at a table, Shard positively identified them as the men who had robbed him two days earlier. No lawyer was present in the room, and neither D nor Bean had asked for legal assistance or been advised of any right to the presence of counsel. A pretrial motion to suppress Shard's identification testimony was denied, and at the trial, Shard described his identification of the two men at the police station on February 22 and identified them again in the courtroom as the men who had robbed him on February 20. The jury found both Ds guilty, and D's conviction was affirmed on appeal. The Illinois appellate court held that the per se exclusionary rule is not applicable to pre-indictment confrontations. The Supreme Court granted certiorari.