United States v. Thornton

United States Court of Appeals for the District of Columbia Circuit · 1984 · Evidence

733 F.2d 121 (D.C. Cir. 1984)

Updated August 22, 2026

EvidenceFifth Amendment privilegeSixth Amendment compulsory processSearch and seizureProbable causeblanket privilegeFifth AmendmentSixth Amendment

Facts

Police entered an apartment building to execute a search warrant for narcotics in a particular apartment. Detective Owens, standing in the hallway, saw Thornton and Cowser come up the stairs; after someone yelled "Police!," Owens saw Thornton place a small plastic package resembling street narcotics packaging into his rear pants pocket. Owens stopped Thornton, conducted an initial search that recovered the package, saw rolled plastic bags of white powder, arrested Thornton, and then found another similar package in a search incident to arrest. At the suppression hearing, Cowser, who faced pending charges arising from the same arrest, refused to testify further about the evening's events on Fifth Amendment grounds.

Issue

Whether the district court improperly accepted Cowser's blanket assertion of the Fifth Amendment privilege, thereby violating Thornton's Sixth Amendment right to compulsory process, and whether the initial warrantless search of Thornton was unconstitutional for lack of probable cause.

Rule

A defendant's Sixth Amendment right to compulsory process does not include a right to compel a witness to waive the Fifth Amendment privilege. The trial judge must inquire into the basis for the privilege and may not allow total refusal if a narrower privilege would adequately protect the witness, but a blanket privilege may be sustained in unusual cases when there is a reasonable basis to believe any relevant question might tend to incriminate the witness. Probable cause to search exists when circumstances known to the officer would warrant a person of reasonable caution in believing that a search would reveal incriminating evidence.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a drug prosecution in Baltimore, Devin Cole calls Marcus Wynn as a defense witness at a suppression hearing. Marcus is awaiting trial on charges arising from the same police encounter and, after consulting counsel, refuses to answer any questions about what happened in the alley that night.

If the judge concludes that any relevant testimony about Devin's stop would likely overlap with Marcus's own pending charges, which ruling is most consistent with the governing doctrine?

Explanation. A defendant's compulsory-process right does not include a right to force a witness to waive the Fifth Amendment. Although courts ordinarily prefer question-by-question assertions, a blanket privilege may be sustained in the unusual case where there is a reasonable basis to believe any relevant question might tend to incriminate the witness. Because Marcus faces pending charges from the same incident, the judge may conclude all relevant testimony is potentially incriminating.