subject to discipline

In 1992 the Chicago City Council enacted the Gang Congregation Ordinance after hearings revealing that gang members intimidated residents by loitering in public places. The ordinance made it unlawful for any person to loiter in a public place with one or more persons knowing that at least one of those persons was a criminal street gang member. The ordinance defined loitering as remaining in any one place with no apparent purpose. It required a police officer who reasonably believed a person to be a gang member loitering with others to order the entire group to disperse, and failure to obey the order was punishable by a fine of up to $500, imprisonment for not more than six months, or up to 120 hours of community service. Two months after enactment the Chicago Police Department issued General Order 92-4 to provide guidelines to govern its enforcement. The order confined arrest authority to members of the Gang Crime Section and other designated officers, established criteria for identifying street gangs and membership, and directed district commanders to designate enforcement areas where gang presence had a demonstrable effect on law-abiding persons. Those designated areas were not released to the public. During the three years the ordinance was enforced, officers issued more than 89,000 dispersal orders and arrested more than 42,000 people. Respondent Jesus Morales and other individuals were charged with violating the ordinance. Trial courts divided on its constitutionality, with some judges upholding it while eleven others ruled it invalid. The Illinois Appellate Court consolidated the cases, affirmed the invalidations, and reversed convictions in the remaining matters. The Illinois Supreme Court affirmed, and the United States Supreme Court granted certiorari.

In January 1981, police officers in Belfast, Maine responded to a fire call at the Belfast Dodge automobile dealership and discovered a burning stolen Chevrolet dump truck along with evidence of several automobile thefts inside a building leased to Brian Moulton and his codefendant Gary Colson. On April 7, 1981, a Waldo County grand jury indicted Moulton and Colson on four counts of theft by receiving stolen goods. Moulton and Colson, represented by retained counsel, pleaded not guilty on April 9 and were released on bail. On November 4, 1982, Colson telephoned Police Chief Robert Keating to report anonymous threatening calls and expressed a desire to discuss the pending charges. After consulting his lawyer, Colson met with police on November 9 and 10, provided full confessions of his and Moulton's participation in the thefts and additional crimes including burglary and arson, and agreed to testify against Moulton and cooperate in the prosecution in exchange for no further charges. The police placed a recording device on Colson's telephone with instructions to record calls from Moulton or threats. Colson recorded three telephone conversations with Moulton on November 22, December 2, and December 14, 1982, in which the men discussed the pending charges and arranged to meet on December 26 to plan their defense. On December 26, Colson wore a body wire transmitter to the meeting as arranged with the police, and the two discussed defense strategy including false alibis, during which Moulton made numerous incriminating statements about the thefts that were later admitted at trial. Moulton moved to suppress the recorded statements before trial. The trial court denied the motion after finding the recordings were made to investigate threats and protect Colson. Moulton was convicted of burglary and theft following a bench trial. The Maine Supreme Judicial Court reversed the convictions on the ground that the statements were obtained in violation of Moulton's Sixth Amendment right to counsel. The United States Supreme Court granted the State's petition for certiorari.

In the early morning of July 4, 1970, respondent and two confederates robbed the Star Taxicab Garage in the Bronx, New York, and fatally shot the night dispatcher. Employees of the garage had observed respondent, a former employee there, on the premises conversing with two other men. They also witnessed respondent fleeing after the robbery, carrying loose money in his arms. After eluding the police for four days, respondent turned himself in. Respondent admitted that he had been present when the crimes took place, claimed that he had witnessed the robbery, gave the police a description of the robbers, but denied knowing them. Respondent also denied any involvement in the robbery or murder, claiming that he had fled because he was afraid of being blamed for the crimes. After his arraignment, respondent was confined in the Bronx House of Detention, where he was placed in a cell with a prisoner named Benny Lee. Unknown to respondent, Lee had agreed to act as a police informant. Before respondent arrived in the jail, Lee had entered into an arrangement with Detective Cullen, according to which Lee agreed to listen to respondent's conversations and report his remarks to Cullen. Cullen instructed Lee not to ask respondent any questions, but simply to keep his ears open for the names of the other perpetrators. Respondent first spoke to Lee about the crimes after he looked out the cellblock window at the Star Taxicab Garage, where the crimes had occurred. Respondent said, someone's messing with me, and began talking to Lee about the robbery, narrating the same story that he had given the police at the time of his arrest. Lee advised respondent that this explanation didn't sound too good, but respondent did not alter his story. Over the next few days, however, respondent changed details of his original account. Respondent then received a visit from his brother, who mentioned that members of his family were upset because they believed that respondent had murdered the dispatcher. After the visit, respondent again described the crimes to Lee. Respondent now admitted that he and two other men, whom he never identified, had planned and carried out the robbery, and had murdered the dispatcher. Lee informed Cullen of respondent's statements and furnished Cullen with notes that he had written surreptitiously while sharing the cell with respondent. At the suppression hearing the trial court found that Cullen had instructed Lee to ask no questions of respondent about the crime but merely to listen as to what respondent might say in his presence. The court determined that Lee obeyed these instructions, that he at no time asked any questions with respect to the crime, and that he only listened to respondent and made notes regarding what respondent had to say. The trial court also found that respondent's statements to Lee were spontaneous and unsolicited. The jury convicted respondent of common-law murder and felonious possession of a weapon. On May 18, 1972, the trial court sentenced him to a term of 20 years to life on the murder count and to a concurrent term of up to 7 years on the weapons count. The Appellate Division affirmed without opinion, People v. Wilson, 41 App. Div. 2d 903, 343 N. Y. S. 2d 563 (1973), and the New York Court of Appeals denied respondent leave to appeal. On December 7, 1973, respondent filed a petition for federal habeas corpus relief. Respondent argued, among other things, that his statements to Lee were obtained pursuant to police investigative methods that violated his constitutional rights. After considering Massiah v. United States, 377 U. S. 201 (1964), the District Court for the Southern District of New York denied the writ on January 7, 1977. A divided panel of the Court of Appeals for the Second Circuit affirmed. Wilson v. Henderson, 584 F. 2d 1185 (1978). We denied a petition for a writ of certiorari. Wilson v. Henderson, 442 U. S. 945 (1979). Following this Court's decision in United States v. Henry, 447 U. S. 264 (1980), which applied the Massiah test to suppress statements made to a paid jailhouse informant, respondent decided to relitigate his Sixth Amendment claim. On September 11, 1981, he filed in state trial court a motion to vacate his conviction. The judge denied the motion, on the grounds that Henry was factually distinguishable from this case, and that under state precedent Henry was not to be given retroactive effect, see People v. Pepper, 53 N. Y. 2d 213, 423 N. E. 2d 366 (1981). The Appellate Division denied respondent leave to appeal. On July 6, 1982, respondent returned to the District Court for the Southern District of New York on a habeas petition, again arguing that admission in evidence of his incriminating statements to Lee violated his Sixth Amendment rights. The District Court found it unnecessary to consider retroactivity because it decided that Henry did not undermine the Court of Appeals' prior disposition of respondent's Sixth Amendment claim. The District Court noted that the trial court's findings were presumptively correct, see 28 U. S. C. § 2254(d), and were fully supported by the record. The court concluded that these findings were fatal to respondent's claim under Henry since they showed that Lee made no affirmative effort of any kind to elicit information from respondent. A different, and again divided, panel of the Court of Appeals reversed. Wilson v. Henderson, 742 F. 2d 741 (1984). The Supreme Court granted certiorari, 472 U. S. 1026 (1985), to consider the Court of Appeals' decision that the ends of justice required consideration of this successive habeas corpus petition and that court's application of our decision in Henry to the facts of this case.