*1 BREWER, WARDEN v. WILLIAMS Argued 4, 1976 No. October 74-1263. Decided March *2 Stewart, J., opinion Court, Brennan, delivered of the in which Marshall, Powell, Stevens, JJ., joined. Marshall, J., and post, p. 406, Powell, J., post, p. 409, Stevens, J., post, p. filed concur ring opinions. J., Burger, dissenting p. C. opinion, post, filed a 415. White, J., dissenting opinion, filed a Rehnquist, in which Blackmun and JJ., joined, post, p. Blackmun, J., 429. dissenting filed a opinion, Rehnquist, JJ., joined, which post, p. White 438. Turner, Attorney
Richard C. General Iowa, Richard Winders, Attorney N. Assistant argued General, the cause and for petitioner. filed briefs
Robert Bartels by appointment Court, U. S. argued the cause and filed respondent.* a brief for opinion delivered the of the Court.
Mr. Justice Stewart jury An Iowa trial found the Robert Williams, respondent, guilty of The judgment murder. of conviction was affirmed Supreme the Iowa Court a closely In divided vote. subsequent corpus proceeding habeas a Federal District Guste, Jr., J. Attorney *William General, Smith, Jr., and Walter L. As- Attorney sistant General, filed a brief for the State of Louisiana amicus curiae.
Fred E. filed Inbau a brief for Americans for Effective Law Enforce ment, Inc., et urging reversal, Wayne al. as amici joined by curiae W. Schmidt and respective officials for their States as follows: William J. *3 Baxley, Attorney Alabama; of Babbitt, Attorney General Bruce E. Gen Arizona, Galati, eral Attorney of and T. General; Frank Assistant James Guy Tucker, Attorney Younger, Arkansas; Attorney General of Evelle J. California, James, General of E. Attorney and William Senior Assistant General; Shevin, Attorney Florida, Robert L. Salcines, of and J. General E. Jr.; Wayne Kidwell, Attorney Christopher Idaho, L. General and of D. Bray, Deputy Attorney General; Scott, Attorney William J. General of Zagel, Illinois, Attorney and B. General; James Assistant Theodore L. Sen dak, Attorney Indiana, Bogard, and of Donald P. General Executive As Attorney Attorney General; Burch, sistant Francis B. Mary of General land; Summer, Attorney A. F. Mississippi, Gilfoy, of and General Karen Attorney General; Douglas, Attorney Assistant Paul L. of General Ne Kamerlohr, Attorney braska, General; and Melvin K. Assistant Robert List, Hyland, Attorney Nevada; Attorney F. of William General General Tufo, Attorney Jersey, General; of Del and Robert First Assistant New Lefkowitz, Attorney York, Louis of J. General New Samuel A. Hir showitz, Attorney General; Olson, Attorney Allen First Assistant I. Gen Larry Derryberry, Dakota; Attorney Oklahoma, eral of North of General McLeod, Attorney McDonald; and Robert Daniel R. of General South Romney, Attorney Carolina; Utah, Vernon B. of and William General W. General; Attorney Miller, Attorney Barrett, Andrew P. Assistant General Harp Deputy Chauncey Virginia, III, Attorney General; of and Reno S. Browning, Attorney Virginia, Cleek, of Jr., H. General P. West David Mendicino, Attorney General; Attorney and V. Frank Assistant General Stack, Deputy Attorney A. Wyoming, and Gerald General. Constitution under the United States Wil ruled Court Court of new and a divided trial, entitled to a liams agreed. question for the Circuit Eighth before Appeals Appeals the Court of the District Court and is whether us wrong. were 10-year-old a 24, 1968, of December the afternoon
On family to the Powers went with her named Pamela girl tourna- wrestling a Moines, in Des watch Iowa, YMCA participating. her was When she ment in which brother for trip to the a search washroom, failed to return a her The search was began. unsuccessful. from mental recently escaped
Robert who had Williams, of the YMCA. after was a resident Soon hospital, Williams was in YMCA girl’s disappearance seen wrapped and a bundle lobby carrying clothing large some help 14-year-old boy in blanket. He obtained from a door to opening the street door the YMCA and the placed parked When Williams his automobile outside. boy front car the “saw two the bundle seat they anyone in it legs skinny were and white.” Before away. could see the bundle Williams drove what following day His abandoned car was found the Daven A roughly 160 miles east of Des Moines. warrant Iowa, port, was then in Des Moines for his arrest on a charge issued abduction. *4 lawyer morning
On the December a Des Moines Henry McKnight police named went to the Des Moines sta present just tion and informed the officers that he had received long-distance and had advised Williams, a call that he himself Davenport police. Williams turn in Wil police did that in morning liams surrender Davenport, they specified booked him on the charge and the arrest gave him the warnings required by warrant and Miranda Arizona, Davenport 384 U. 436. The tele police then phoned their counterparts inform in Des Moines to them that Williams had surrendered. was McKnight, lawyer, still the Des Moines police headquarters, and Williams conversed with McKnight on the telephone. presence In the Des Moines chief of police and police detective named McKnight Leaming, advised Williams that Des police Moines officers would be driving to Davenport pick him that officers up, would not him interrogate or mistreat him, and that Williams was not to talk to the officers about Pamela Powers until after consulting with McKnight upon his return to Des Moines. As a result these it was agreed between conversations, McKnight and Des Moines officials that Leaming Detective a fellow officer would drive to Davenport pick up Williams, they would him bring directly back to Des Moines, and that they would not question him trip. during the
In the meantime Williams was arraigned before judge Davenport on the outstanding arrest warrant. judge advised him of his Miranda rights him and committed to jail. leaving courtroom, Before Williams conferred with a lawyer named Kelly, who advised him not to make any consulting statements until with McKnight back in Des Moines.
Detective and his fellow Leaming officer arrived Daven port pick up about noon to Williams and return him to Des they Moines. Soon after their arrival met with Williams Kelly, they understood, acting as Williams’ who, lawyer. repeated Detective Leaming the Miranda warnings, and told Williams: you’re know being both represented
“[W]e here Mr. Kelly you’re being represented by Mr. McKnight you Moines, and ... want Des to remember this visiting because we’ll be between here and Des Moines.” again conferred with Kelly then and after alone, Kelly this conference reiterated to Leaming Detective *5 questioned disappearance not to be about was Williams Powers until after he had consulted with Mc Pamela of Knight Leaming expressed back Des Moines. When Kelly firmly some agreement stated that reservations, McKnight with was be out—that there carried no interrogation be of during jour Williams the automobile ney Des Kelly permission Moines. was denied to ride in the car back to with Des Moines Williams and the two officers.
The two with detectives, in their then charge, set out on the 160-mile drive. At no during trip time express did Williams willingness in the interrogated attorney. Instead, absence he stated times several I get to Des Moines and see “[w]hen Mr. McKnight, I going you am to tell story.” the whole Leaming Detective knew that Williams was a former mental and knew patient, also that was deeply religious. prisoner
The detective and his soon on a embarked wide conversation ranging variety covering topics, including subject religion. after Then, long leaving Daven port and reaching the highway, interstate Detective Leaming delivered what has been to in referred the briefs and oral arguments as the speech.” “Christian burial Addressing Williams as “Reverend,” the detective said:
“I you want to give think something to about while traveling we’re . down road. I . Number one, . you want to observe the weather it’s conditions, raining, it’s sleeting, it’s freezing, very driving treacherous, visibility it’s going poor, be dark early evening. They predicting are several inches snow for tonight, yourself you feel that only are the person that knows where girl’s body this little you is, yourself only have been you there if get a snow once, top you of it yourself may be unable to find it. And, past since will be going right we the area on the way into *6 I Des Moines, feel stop that we could and locate the parents the body, of this girl little should en titled to a Christian burial for the little girl who was away snatched from them on Christmas and mur [E]ve I dered. And feel we should stop and locate on it the way in rather than waiting morning until to trying come back out after a snow storm and not possibly being able to find it at all.”
Williams asked why Leaming Detective he their thought route Des Moines would be taking past them girl’s and Leaming responded body, that he knew body was in the area of they Mitchellville—a town would be passing way to Des Moines.1 then “I Leaming stated: do not you want to answer me. don’t want to discuss it any think further. Just about riding as we’re down the road.” approached
As car approximately town Grinnell, Davenport, miles west of Williams asked whether police had found the victim’s shoes. When Detective Leaming replied that he was Williams directed the unsure, officers a service station where he he had left said a search for them shoes; proved they con unsuccessful. As towards Des tinued Williams asked whether Moines, police had blanket, found the and directed the officers to disposed rest area he had where said the blanket. Nothing was found. The car continued towards Des Moines, it approached Williams said that he Mitchellville, would show the officers where the was. then body He di police body to the rected Pamela Powers. indicted for first-degree
Williams was murder. Before trial, counsel all suppress relating his moved evidence statements had resulting during made Davenport the automobile ride from to Des Moines. After matter, course, fact Leaming was that Detective possessed knowledge. no such the motion. denied judge the trial hearing evidentiary defense between was made agreement “an found
He Defend- that the to the effect officials and the counsel Des trip to on the return questioned to be ant been elicited question had the evidence Moines,” and proceedings in the stage critical during “a from Williams judge request.” on his counsel presence of requiring have had “waived that Williams however, ruled, *7 information.” of such giving attorney present during counsel’s introduced over in was question The evidence jury found trial. The objection subsequent at the continuing of conviction judgment of and guilty murder, Williams majority bare Supreme by the Iowa Court, affirmed Williams the trial court that agreed members with of whose counsel” presence of his right his “waived had State Davenport to Des Moines. ride from the automobile dissenting Williams, 402. The four 396, N. 2d 182 W. v. and that “when counsel expressed the view justices counsel questioned until is not agreed have defendant not to talk and has been advised present and defendant story after he he will tell the whole repeatedly has stated required should be make counsel, with state talks than voluntary of intentional waiver stronger showing Id., at 408. was made here.” corpus petitioned for a writ of habeas
Williams then for the District the United District Court Southern States stipulated for Iowa. Counsel for the State and Williams on the record of facts case would be submitted that “the without of further taking in the trial proceedings and court, findings Court fact testimony.” The District made concluded as a matter of law that summarized above, been admitted at question wrongly had the evidence denying suppress the trial court motion Williams’ opinion unreported. Williams’ trial. This conclusion was based on three alterna independent tive and grounds: (1) that Williams had been denied his constitutional to the assistance of counsel; (2) that he had been denied the protections constitutional de fined this Court’s decisions Escobedo Illinois, 378 U. S. Arizona, Miranda 384 U. S. (3) 436; event, self-incriminatory statements on the auto trip Davenport mobile to Des Moines had been involun tarily made. the District Court ruled that there Further, had been no waiver pro the constitutional question. tections in Supp. 375 F. 170. Court of Appeals for Eighth with one Circuit,
judge affirmed this judgment, 509 F. 2d dissenting, petition and denied a for rehearing en granted banc. We certiorari to consider the presented. issues U. 1031.
II A Before turning those peti we must consider the issues, *8 tioner’s threshold claim that the District disregarded Court provisions the of 28 S. § U. (d) making findings C. 2254 in its of in fact this case. That statute, which codifies most the criteria set out in Sain, Townsend 372 U. provides subject that, enumerated federal exceptions, corpus habeas accept courts shall as correct the factual de terminations by made the courts of the States.3 (d) provides: Title 28 U. S. C. 2254 § “(d) any proceeding by In in a instituted Federal an applica court by corpus custody person tion for a writ of a pursuant habeas in to the judgment court, hearing of a a State determination after a on the merits issue, by competent jurisdiction a a factual made State court of in a applicant which the for the proceeding to writ and the or State parties, by agent thereof evidenced finding, officer or were written adequate opinion, indicia, or reliable written other written shall be We conclude that there no was disregard (d) § in Although parties either of the might case. well have requested an evidentiary in the hearing federal corpus habeas Sain, Townsend v. proceedings, supra, they at both instead in voluntarily agreed advance that the federal court should decide the case on the in record made the courts of the In State. so the District proceeding, made no Court presumed correct, applicant unless the shall or it shall establish appear, otherwise respondent or the shall admit— “(1) that the merits dispute of the factual in the were not resolved hearing; State court “(2) factfinding procedure by that the employed the State court was adequate
not to afford hearing; a full and fair
“(3) that adequately developed material facts were not hearing; State court
“(4) that jurisdiction subject State court lacked of the matter or person over the applicant of the proceeding; the State court “(5) applicant that indigent court, was an and the State deprivation right, of his appoint repre- failed to counsel to sent proceeding; in the State court him “(6) applicant full, fair, adequate that did not receive a hearing in proceeding; the State court “(7) applicant that process denied due otherwise of law in proceeding; the State court
“(8) part or unless of the proceeding record of the State court which the made, determination of such factual pertinent issue was to a sufficiency determination of the support of the evidence to such factual determination, produced provided hereinafter, for and the Federal part on a consideration of such record as whole concludes court fairly by such factual determination is supported the record: evidentiary hearing “And in an proceeding court, in the Federal proof due of such made, when factual has been determination unless the respectively existence of one or more of the circumstances set forth in (1) (7), inclusive, paragraphs numbered applicant, shown appears, respondent, or is admitted or unless the otherwise court provisions pursuant paragraph (8) to the concludes numbered *9 proceeding, court whole, in the State considered the record as a does not determination, factual fairly support such the upon burden shall rest by convincing applicant to establish evidence that the the factual deter- court was erroneous.” mination State
397 of fact in conflict with of findings those Iowa courts. District Court did make some findings additional upon fact based its examination of the record, state-court them among findings the Davenport Kelly, lawyer, requested permission had to ride in the car from Davenport Des Moines and that Detective Leaming had request. refused this But the findings additional were con scientiously explained carefully Court, District 375 Supp., 175-176, F. at and were approved by reviewed and Appeals, the Court of which expressly held that “the District correctly applied Court 28 U. 2254 in § its resolution C. disputed evidentiary facts, and that facts found by the District Court had substantial basis in record,” at 2d, F. 231. The strictures of 28 U. 2254 (d) § S. C. no require more.4
B As stated the District Court judgment based its above, independent this case on three grounds. The Court of Appeals appears to have affirmed judgment on two of grounds.5 those We have only one concluded them need be considered here. there is no need to review in case the
Specifically, Arizona, doctrine of Miranda v. a doctrine designed secure privilege against constitutional compulsory self-incrimina Michigan tion, Tucker, 438-439. It U. S. equally unnecessary ruling to evaluate the of the District Court that Williams’ self-incriminating statements in were, involuntarily Spano New deed, York, made. Cf. S.U. judgment 315. For it is clear that the before us must upon ground deprived event be affirmed that Williams was rights waived his not, course, Whether question fact, discussion, an issue of federal See infra, but law. 401-404. Appeals did not address the ruling Court of District Court’s involuntarily. been made statements had Williams’ *10 398 right—constitutional right to the different right—the assistance
of a of counsel. Amend Fourteenth by the Sixth guaranteed right,
This of our administration to the fair indispensable ments, need at justice. Its vital of criminal adversary system succinctly nowhere been more pretrial perhaps stage has memorable words Sutherland’s than Mr. Justice explained Alabama, 287 U. years ago for the Court 44 in Powell v. S. 57: pro “[D]uring perhaps period critical most ceedings against say, these defendants, of their beginning until the arraignment the time their investigation trial, consultation, thoroughgoing when did preparation important, the defendants vitally were although the aid of counsel real have sense, period they were as much entitled to such aid during trial itself.” at occasionally opinion has been a difference within There peripheral the Court as to the of this constitutional scope right. Kirby See 406 682; v. U. S. Coleman v. Ala Illinois, bama, 399 U. 1. But its S. basic which are identi contours, cal in state and Wainwright, federal Gideon v. contexts, Argersinger U. 335; Hamlin, 372 S. v. 407 U. are S. too well require established to extensive elaboration here. Whatever it may else counsel mean, granted the Sixth and Fourteenth Amendments means at least that person is help entitled to lawyer of a or at after judicial the time that proceedings have been initiated against way him—“whether preliminary formal hear charge, indictment, ing, information, arraignment.” Kirby v. Illinois, supra, Alabama, Powell supra; 689. See v. John Zerbst, son v. 458; Alabama, U. Hamilton S. v. 368 U. S. 52; Wainwright, Gideon supra; v. Maryland, White v. 59; States, Massiah v. United
U. S. 201; U. S. United Wade, California, Gilbert 218; States 388 U. U. S. Alabama, Coleman v. 263; supra. present judi
There can be no doubt case that before proceedings against had been initiated cial *11 Davenport ride Des the start the automobile from A arrest, been issued for his he had had Moines. warrant judge warrant before a in a Daven arraigned been the court by he had committed port courtroom, and been jail. State contend to confinement The does otherwise. either, be no that Detective doubt,
There can serious infor deliberately set out to elicit designedly Leaming more surely perhaps just from as as—and mation Williams formally him. Detective effectively interrogated than—if had he for Des fully departing was aware before ming Lea Davenport being represented was Moines that Williams pur by Yet he McKnight. in Des Moines by Kelly and lawyers isolation his posely sought during Williams’ In possible. incriminating much information obtain as when he testified conceded as much Leaming Detective deed, trial: at Williams’ patient a mental In whether he was
“Q. Captain, fact, you the information get all you trying were or not, you? weren’t lawyer, he to his got could before little to find out where hoping was sure “A. sir. girl yes, was, hoping to way: You was put I’ll it this
“Q. Well, [sic] got you could before Williams the information get all you? weren’t McKnight, back to Yes, sir.” “A. Court, argument in this of oral petitioner, in the course for Counsel speech” was tantamount “Christian burial
acknowledged that interrogation: Attorney indi- General, you really, what point, Mr.
“Q: isn’t But clearly proceeded upon hypothesis The state courts Leaming’s speech” that Detective “Christian burial had interrogation. recognized been tantamount Both courts had been to the counsel entitled assistance of at the time he made the Yet no incriminating statements.7 such if protection play would have come into interrogation. there had been no constitutionally circumstances of case are thus
indistinguishable presented from those Massiah United States, supra. petitioner for that case was indicted violating federal He narcotics law. retained a lawyer, pleaded not guilty, and was released on he was bail. While free on surreptitious bail federal agent succeeded means in listening to incriminating made statements him. Evi of these peti dence statements was introduced against tioner This Court re trial, convicted. *12 petitioner versed conviction, holding the “that the denied protections the basic guarantee of that right to [the counsel] when there was used him his against trial evidence of his own incriminating words, which agents federal had deliber ately elicited from him after he had been and in indicted the absence of his counsel.” 377 S.,U. at 206.
That the incriminating statements were surrepti elicited tiously Massiah and otherwise case, is constitu here, tionally ibid.; irrelevant. Ohio, See McLeod v. 381 U. S. 356; United States Crisp, v. 435 2d (CA7) ; F. 358 earlier, cated and that is that the officer wanted to elicit from information Williams— Yes,
“A: sir. “Q: —by techniques used, whatever he suppose lawyer I would would pursuing consider interrogation. were is, very “A: It but it was Arg. brief.” Tr. of Oral 17. expressly The trial court acknowledged Iowa “right Williams’ to have attorney present supra, during giving of such information.” See Supreme at 394. Iowa expressly Court also acknowledged Williams’
“right presence of his counsel.” See ibid. to the
United
ex
States
rel. O’Connor New Jersey,
III The Iowa courts recognized that Williams had been denied the constitutional right to the assistance of counsel.9 They held, however, that he had waived that during the course of the trip automobile Davenport Des Moines. The state trial court explained its determination of waiver as follows: time element
“The involved on trip, general circumstances more it, importantly absence part the Defendant’s assertion of his right or to give desire not presence information absent his attorney, are the main for the foundations Court’s conclusion that he voluntarily right.” such waived only significant present other factual difference between the case agreed they and Massiah that here had would not inter rogate in the plainly absence of counsel. This circumstance provides argument away petitioner distinguishing with no for protec *13 tion Massiah. afforded may argued agreement
It that this not have been an enforceable offer, acceptance, one. But we do not deal here notions of with considera- tion, concepts of or other of the law contracts. deal with constitu- We every has tional And court that looked at this case has law. found an "agreement” in the sense of a commitment made the Des Moines questioned Pamela officers that would not be about Powers in the absence his counsel. supra. See n. opinion
In its lengthy affirming the determination, Supreme totality-of-circumstances Court applied Iowa “the showing for a of constitutionally-protected test waiver rights express the waiver,” absence of an and concluded that “evidence of the time element gen on the trip, involved eral circumstances of it, and the absence of request expressed desire for aid of counsel before or at time giving information, were sufficient to sustain con that clusion defendant his did waive rights alleged.” as 182 N. 2d, W. 402. corpus
In the federal habeas the District proceeding Court, believing of waiver issue was not one of fact but of federal held law, Iowa courts “applied had wrong constitutional standards” in ruling that Williams had the protections waived that were his under the Constitution. F. Supp., at 182. The court gov held it is “that ernment heavy which bears a burden . but . . is the burden which explicitly placed on by the [Williams] courts.” (emphasis state Ibid. in original). carefully After reviewing the the District Court concluded: evidence, the proper determining
“[U]nder standards for waiver, simply there is no support evidence to . waiver. . . no . affirmative . [T]here indication . that [Williams] did his rights. waive . . . state courts' emphasis [T]he on the absence of a demand for only counsel was not legally but inappropriate, factually unsupportable since well, Detective Leaming himself testified that [Williams], several occasions during the indi trip, cated that he talk would he saw Mr. McKnight. after Both these statements and Mr. Kelly's statement Detective Leaming that only would talk [Williams] McKnight after Mr. seeing in Des Moines certainly were assertions of ‘right or desire give [Williams’] not to in presence formation absent attorney .' . . . Moreover, statements were obtained only after Detective *14 aming’s Le use of psychology person a whom he deeply knew to religious escapee and an from a mental hospital—with specific intent to elicit incriminating In statements. the face of this evidence, the State has produced no affirmative evidence support whatsoever to its claim of waiver, and, fortiori, cannot be said that the State has met its ‘heavy burden’ of showing a know ing and intelligent waiver of . .. Sixth Amendment Id., rights.” (emphasis 182-183 in original; footnote omitted).
The Court of Appeals approved reasoning of the Dis trict Court:
“A review of the record here . . . discloses no facts to support the conclusion of the state court that [Wil had waived his liams] constitutional rights other than had made incriminating [he] statements. . . . The District Court here properly concluded that an incorrect constitutional standard had been applied by the state court in determining issue of waiver. . . . recently court held accused can “[T]his volun tarily, knowingly intelligently waive his have present counsel at an interrogation after counsel has been appointed. . . . has the prosecution, however, weighty obligation to show that the waiver was know ingly intelligently quite agree made. We Judge with here Hanson state failed to so show.” 509 F. 233. 2d, at Appeals
The District Court the Court of were correct question in the view that of waiver was not question but one in the fact, which, of historical words of Justice Mr. “application of requires principles Frankfurter, Allen, Brown v. to the facts as found . . .” . U. *15 Sain, Townsend opinion). v. 372 at (separate S., See U.
507 Janis, 318; Brookhart v. 384 S. 4. 6, 1, 309 n. U. Appeals Court of
The District Court and the were also proper of to be understanding correct in their standard determining question in of a matter applied waiver as upon the of federal law—that it was incumbent prove relinquishment to “an intentional or abandon State Zerbst, right of a known Johnson v. privilege.” ment many been reiterated in S., at 464. That standard has U. does not right cases. We have said that counsel Cochran, depend upon Carnley request by the defendant, v. Arizona, 513; 471, 369 U. Miranda v. at S., cf. U. every presumption and that courts reasonable indulge Janis, g., e. Brookhart v. Glasser against waiver, supra, 4; at States, ap United 315 U. S. 70. This strict standard plies equally alleged waiver counsel stage pretrial proceedings. at trial or at a critical whether Schneckloth v. United 218, 238-240; U. S. Bustamonte, Wade, States 237. S., U. Appeals the Court of was cor conclude, finally,
We by rect in these the record holding judged standards, that, sustaining petitioner’s falls far burden. case short It is had been informed appeared true that Williams of and his right requires understand to counsel. But waiver not merely comprehension but and Williams’ relinquishment, upon consistent reliance in dealing the advice counsel with any the authorities refutes suggestion that he waived that right. McKnight by long-distance telephone He consulted spoke before in. turning McKnight himself He with telephone shortly after again being booked. After he was Williams out and arraigned, sought legal obtained advice Kelly. again Kelly Williams consulted with after Detective Lea and his fellow officer ming Davenport. arrived in any was advised not to make state Throughout, Williams before seeing McKnight ments Des and was Moines, police had agreed question assured him. His statements while the car that he would tell story seeing McKnight whole in Des Moines were the after expressions by clearest Williams himself that he desired the presence attorney of an before interrogation place. took But even before making these statements, had effectively asserted his right to counsel having secured attorneys at both ends the automobile both of trip, acting had made agents, clear to whom, that no interrogation was to occur journey. during the Wil *16 of that agreement liams knew particularly and, in view of his consistent reliance on is no for there basis con counsel, that he cluding disavowed it.10
Despite express Williams’ implicit assertions of his right to counsel, Detective proceeded Leaming to elicit in criminating statements from Williams. did Leaming not preface this effort telling Williams that he right had a presence to the of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances record in this pro case thus vide no reasonable basis for finding that Williams waived to the right assistance counsel. Court of Appeals
The did not hold, nor do that under we, not, circumstances of this case Williams could without notice to counsel, rights have waived his under the Sixth and 10 Michigan Mosley, Cf. J., 110 n. 2 (White, concur U. ring result): keep reasons to the lines of communication between the a[T]he authorities open accused when the accused has chosen to make his own present decisions are not when he indicates legal instead that he wishes respect may advice The with thereto. authorities then communicate with through attorney. point, him More to the having expressed the accused competent that he is his own view to deal with the authorities without legal advice, a later decision at the' authorities’ insistence to make a state presence may ment counsel’s without properly skepticism.” viewed with do only It held, we, Amendments.11 Fourteenth not. did
IV was of which Williams convicted senseless The crime by the for action calling energetic swift and and brutal, evidence with gather apprehend perpetrator enforcement No mission of law which he could be convicted. for zeal important. officials is more Yet “[d]isinterested does not assure either wisdom public good Ohio, 332 U. S. pursues.” Haley the methods it we judgment). Although (Frankfurter, J., concurring corpus in of a writ of habeas lightly do not affirm issuance of the and Fourteenth so clear a violation Sixth case, pres Amendments as here occurred cannot be condoned. charged with the judicial officers sures on state executive and especially when law are great, of the criminal administration child. But victim a small crime murder and the is that makes pressures of those precisely predictability imperative loyalty guarantees resolute to us Constitution extends all. affirmed.12 Appeals Court judgment
It is ordered.13 so *17 concurring. Justice Mr. Marshall, wholeheartedly my opinion I concur Brother Stewart’s dissenting of the light for the but add these words Court, 11 1344, Springer, 2d g., 460 F. 1350 Compare, e. United States v. Coughlan States, (CA5); v. F. (CA7); v. United 398 2d 331 Wilson Thomas, with, g., e. States, (CA9), 2d 371 United States v. F. United 391 Springer, supra, (CA10); States at 1354 110, United v. F. 2d 112 474 Magoon Reincke, States ex rel. v. J., dissenting); United (Stevens, 1355 (Conn.). 1014 States (CA2), aff’g Supp. 304 F. Cf. United F. 2d 69 416 (CA9). Pheaster, 544 F. 2d v. upon the its decision “does not touch Court stated District incriminating them evidence, any, beyond the statements if of what issue today. opinions filed The dissenters have, believe, sight lost of the fundamental backbone of our criminal They law. seem to think that Detective Leaming’s actions were perfectly indeed laudable, examples of “good proper, police In my work.” police view, good work is something far different from catching the any price. criminal at It equally important as guardians police, law, fulfill their responsibility obey its scrupulously. commands For “in end life and liberty can be as much endangered from illegal methods used to those thought convict be Spano criminals as from the actual criminals themselves.” York, New 315, U. S. 320-321 (1959).
In this
there can be no doubt
that Detective
case,
Leaming
consciously and knowingly set out to violate Williams’ Sixth
Amendment
to counsel and his
privi
Amendment
Fifth
lege against
self-incrimination,
Leaming himself understood
rights. Leaming
those
knew that Williams had been advised
”
selves must be excluded
poisonous
as 'fruit of the
Supp.
tree.’
375 F.
We, too,
185.
have no
issue,
occasion to address this
and in the
present posture of the case there is no basis
dissenting
for the view of our
post,
Brethren,
J.); post,
at 430
at 441 (Blackmun,
(White,
J.), that
retry
attempt
respondent
probably
would
futile. While
incriminating
neither
any testimony
Williams’
statements themselves nor
describing
having
body
led the
victim’s
can constitu
tionally
evidence,
be admitted into
body
evidence of where the
was found
might
theory
and of its condition
body
well be
admissible
any event,
been
would have
discovered
even had incriminating state
Killough
ments not been
from
elicited
Williams. Cf.
States,
United
App.
119 U.
D.
C.
Of this scenario would all course, except produce from his it would not sought investigation Accordingly, from Williams. incriminating statements actions pry undertook his charade to such evidence ming Lea rule to invoking no-passengers from Williams. After the Kelly the prevent attorney accompanying prisoner, from mercy: during had three- or four- Leaming Williams trip anything hour he do to elicit a could he wished confession. again efficiency demonstrated The detective once “that can matched, given of the rack and thumbscrew be ” sophisticated more proper subject, 'persuasion.’ modes of Alabama, 361 Blackburn (1960). U. S. knowingly protection
Leaming isolated Williams lawyers during period intentionally “per of his him give incriminating evidence. It is this inten suaded” police good police practice—that misconduct—not tional condemns. The rightly Court heinous of the crime is nature no as the dissenters would have for excuse, it, condoning know ing transgression intentional If rights go of a defendant. Williams is to given free—and prosecutors of Iowa ingenuity retrial or in a civil com I doubt proceeding, very mitment much that there dangerous chance a criminal will loosed on the streets, *19 of bloodcurdling cries the dissents notwithstanding—it will it. It hardly because deserves will be because Detective Leaming, knowing full well that he of risked reversal Williams’ intentionally denied right every Williams the of conviction, American Sixth under the Amendment the protective have of lawyer shield a between power himself and the of awesome the State.
I think appropriate it here to recall not Mr. Justice Car opinion dozo’s in People Defore, N. Y. N. E. 585 opinion of (1926), see post, Chief Justice, 416, and n. but rather the closing words of Mr. Justice Brandeis’ great dissent States, Olmstead v. United S. 438, 471, U. 485 (1928):
“In government of laws, government existence of the imperilled will be if it fails to observe the law scru pulously. Our Government is the omnipresent potent, teacher. For or for good it ill, people teaches the whole example. its If Crime is contagious. the Govern ment it becomes a breeds lawbreaker, contempt for it law; man every invites become law unto it himself; invites To anarchy. declare in the administration of justifies criminal law the end the means—to declare that may the Government commit crimes in order to secure the private conviction of a criminal—would terrible bring Against retribution. pernicious doctrine this Court set its resolutely should face.” Powell, Justice concurring.
Mr. dissenting opinion As the Chief Justice sharply illustrates, resolution the issues in primarily this case turns perception one’s facts. There is little difference among the several opinion, courts and judges numerous case, who have reviewed to the relevant constitutional (i) right had the principles: Williams assistance coun (it right attached is conceded that sel; (ii) once that properly interrogate case), could had in this State voluntarily counsel unless he in the absence of on the (iii) the burden was knowingly right; waived waived the that Williams fact had to show State police interrogated before the him. *20 been a critical is whether there had
The factual issue large part upon whether voluntary and this turns in waiver, Brothers view interrogation. my dissenting there As was I them, differently my perception own the facts so predi the and factual repeat briefly setting, will background, by Williams—even incriminating cate to the statements quite all of this opinion the of the Court sets forth though accurately. Davenport to Des trip from to the automobile
Prior carefully arrested, booked, had and Moines, Williams been doctrine given warnings. It settled constitutional Miranda His of counsel. right the to the assistance that he then had case. right uniquely was evidenced exercise of this and sur counsel to his prior arrest, had consulted Williams At all times police on advice of counsel. rendered the had knowledge two Williams, police, the thereafter initially and whom Williams consulted attorneys: McKnight, who had Moines, Kelly, in Des his arrival who awaited Davenport where surrendered. represented Williams police the of the status of by recognition Significantly, express agreement between counsel was evidenced appropriate police officials that officers McKnight not interro Des would drive Williams Moines who would absence of counsel. him the gate incriminating statements were made Williams dur custody police while in two officers, ride long
ing of his retained counsel. The dissent in the absence prior concludes that Chief Justice to these statements, had “made a valid waiver” of to have Post, present. counsel 417. This view disregards the record evidence clearly indicating that the engaged in interro gation of Williams. For the District example, Court noted:
“According to Leaming’s Detective own testimony, specific purpose of this conversation initiated [which by Leaming and which preceded Williams’ confession] was to obtain statements and information from [Wil concerning missing liams] girl.” Supp. 375 F. 174.
In support of that finding, the District quoted Court exten sively from Leaming’s testimony, including following:
“Q. In fact, Captain, whether awas mental [Williams] patient or you not, trying get were all the information you could before he got you? to his weren’t lawyer, *21 “A. I hoping was sure girl to find out where little that was, yes, sir.
“Q. I’ll put way: Well, hoping get You were all you got the information could before Williams back you? McKnight, weren’t Yes, “A. sir.” Ibid.
After full finding, upon a review of the that there had facts, the District Court the ulti “interrogation,” been addressed only of mate issue “waiver” and concluded not that the State carry had its burden but also that failed in the that nothing “there is record indicate [Wil rights Fifth and Sixth Amendment waived liams] eventually ob fact that statements were except the Id., (Emphasis original.) in at 182. tained.” affirmatively that Appeals of stated “the facts Court the by found District Court had substantial basis in as the 2d 231.1 227, record.” F. the
I that join opinion the of the Court which also finds Leaming efforts of elicit information Wil Detective “to argu by petitioner counsel for at oral liams,” conceded ante, a form 400 n. skillful effective ment, were and setting conducive interrogation. entire was Moreover, exploited. successfully to the coercion was psychological man with police young to be a Williams known history of dis religious convictions mental quixotic and day weather was Christmas, orders. date was after Leaming’s appropriate and for Detective ominous, setting body a “Christian concealing preventing talk snow alone in with two burial.” Williams was the automobile hours. from the record, officers for several It is clear police courts there was found, as both of the federal below voluntary right knowing waiver of no evidence beyond ulti have the fact that present counsel an mately is settled law that inferred waiver It confessed. Williams, Estelle of a is disfavored. find no (1976) J., concurring). 425 U. (Powell, opin of this in dissenting basis the record case—or interrogation, the concluding engaged had Before background: Court summarized the factual District Learning from Petitioner the absence “Detective statements obtained Mr. agreement (1) making, breaking, after and then with counsel questioned McKnight until he arrived that Petitioner would Mr. McKnight; (2) being both Mr. after told Des Moines saw questioned Kelly to be until McKnight that Petitioner was not and Mr. Kelly, Moines; (3) refusing to Mr. whom Des after allow reached *22 co-counsel, ride to regarded Petitioner’s Learning himself as Detective (4) being Petitioner that Petitioner; and told after Moines with Des By McKnight. Mr. Des Moines and he reached talk would after several, Petitioner was clear indications that ignoring these violating Learning deprived Peti interrogation, Detective during counsel have to, objection way if not more in a similar counsel tioner of States, in Massiah United against the defendant [v. than, that utilized able omitted). (footnote Supp., F. at 177 (1964)].” 375 U. S. ions—for disagreeing with the conclusion District the Court that produced “the State has no affirmative evidence whatso ever to support claim its of waiver.” 375 F. at Supp., 183. opinion dissenting states that The Chief Justice the Court's holding today presumes “conclusively suspect a incompetent legally to change his mind and tell the until truth attorney present.” Post, justification at 419. no find for this view. the contrary, opinion the On the Court is explicitly clear that the right to assistance of may counsel waived, after it has without notice to or consulta attached, tion with counsel. Ante, at 405-406. We would such have petitioner case here if proved had the officers refrained coercion and interrogation, they agreed, had and that Williams on freely his own had initiative confessed the crime.
II In discussing the exclusionary rule, dissenting opinion of The Chief Powell, refers to Stone v. 428 U. S. Justice In (1976), decided last Term. we case, held that a court apply federal need not exclusionary rule on habeas corpus review of a Fourth claim Amendment absent a show ing prisoner the state an opportunity denied for litigation full and fair claim of that on trial and direct review.
This case also involves corpus review habeas of a state and the decisions that conviction, today the Court affirms held that Williams’ incriminating statements should have excluded.2 As Stone been was decided subsequently to these per generally application 2 I tend to share the view that se of an exclusionary except application. rule has little to commend ease of All rule in this applying freeing guilty too fashion results often any offsetting rights enhancement of of all citizens. without More exclusionary many over, rigid rule adherence circumstances legitimate demands of greater law enforcement imposes cost on than purposes. justified by rule’s deterrent Schneckloth v. Busta can be J., (1973) (Powell, concurring). 218, 267 monte, 412 I therefore U. indicated, respect violations, to Fourth with Amendment at least have *23 to consider no occasion below had the courts decisions, may been have enunciated Stone principle the whether pre has not been question That in this case. applicable and we us,3 arguments or submitted in the briefs sented applicabil possible no to consider the occasion therefore have Stone in rationale of applicability the ity of Stone. a number of context raises Fifth Amendment the and Sixth Fifth Amendment claims and Sixth Many unresolved issues. of a trial or to context of to the fairness challenges in the arise In contrast, Fourth factfinding process. integrity “typi uniformly claims involve evidence Amendment bearing information probative often the most cally reliable and Powell, Stone innocence defendant.” guilt on Stone should supra, 490. the rationale of Whether classes Amendment claims or to those Fifth Sixth applied under Fourth closely parallel more claims of claims that I no question is a as to which intimate view, Amendment implications of such only after the which should be resolved fully explored. ruling have been Stevens, concurring. Mr. Justice Stewart, opinion
Mr. in his for the Court which Justice Justice Marshall have Powell, Mr. Justice and Mr. join, flagrant by the violations a distinction should be made between violations, hand, technical, trivial, one or inadvertent police, on the (1975) Illinois, (concurring Brown 610-612 the other. U. S. Here, Amendment case and also one which opinion). we have a Sixth inherently setting in deliberately advantage coercive took of an police counsel, contrary express agreement. are to their Police absence of truth, but the diligent efforts to ascertain the commended for to be rights. respondent’s plainly violated in this case conduct briefs, including peti not mentioned The Stone issue was after our September 1976—some three months reply brief filed tioner’s of Stone was possible relevance announced. in Stone was decision during argument. prompted This oral question from bench raised 26-27, parties. Arg., both Oral counsel for Tr. brief comments having meaningful can issue be viewed as been sense But in no 49-50. “argued” in case.
accurately explained the why reasons the requires law the today. result we reach Nevertheless, strong the in language opinions the dissenting prompts me to add this brief comment about the Court's function in a case such as this.
Nothing that we write, no matter how well or reasoned forcefully can expressed, bring back victim the of tragedy or undo the consequences of the neglect official which led to respondent's the escape from a state mental institution. aspects emotional of the case make it difficult to dis decide but do passionately, qualify our obligation apply to the eye law with to an the future well as with concern for the in particular result the case before us.
Underlying the surface issues in this question case is the whether a from fugitive justice rely lawyer’s can on his advice given connection with a decision to voluntarily. surrender placed The defendant his trust experienced in an Iowa trial lawyer inwho turn trusted the Iowa law enforcement authori ties to honor a commitment during negotiations made which to apprehension led the of a potentially dangerous person. Under analysis, this was a of stage critical the proceeding in which the participation of independent professional was importance of vital to the accused and to society. At this stage—as in countless others which the law profoundly affects of the life lawyer individual—the is the essential medium through which the demands and commitments of the sovereign are to communicated If, citizen. the long we seriously are concerned about run, the individual’s effective representation by counsel, permitted State cannot be dishonor promise its this lawyer.*
Mr. Chief Burger, Justice dissenting. result in this ought case to be any society intolerable in purports organized which to call itself an society. It con importance point emphasized by *The of this the State’s refusal to accompany permit his trip counsel to client Davenport from Des Moines. Court—by much- margin—on
tinues the the narrowest public for the mistakes and punishing criticized course of punishing law enforcement instead officers, misdeeds of It wrongdoing. guilty officer if fact he is directly, mechanically blindly juries keeps reliable evidence gross po involves whether claimed violation lice misconduct honest human error. or no guilty savage child; murder a small custody, Court contends he is not. While in member of the rights warnings of to silence after no fewer than five body vic counsel, he led the concealed of his was not threatened tim. The Court concedes Williams *25 voluntarily full spoke and acted and with coerced and that this, rights. In the face of of his constitutional all awareness by prompted was now holds because Williams the Court but interrogation a statement— the detective’s statement—not body. police found the must not be told how the jury the (later Judge Justice) Cardozo’s Today’s holding fulfills Mr. someday might carry court ex some the grim prophecy that operative extent that its effect clusionary rule to the absurd relating body to the vic a murder exclude evidence would In ruling found.1 so which it was tim because of the means . . go has . is to free because the constable blundered. “The criminal law, body man against the and the of a murdered A is searched room infringed, mur the and the privacy . home has been . . found. 585, People 13, 21, 23-24, 160 Defore, 242 Y. N. goes N. E. free.” derer (1926). 587, 588 only ante, holding excludes protests, at 407 n. its Court testimony incriminating any themselves well [as statements as] “Williams’ body,” hinting that describing having police to the victim’s thus led the realistically possible. guilty felon is palpably this retrial of successful the corpus could be used to establish all, the delicti if this were Even clearly death, holding bars the Court’s the manner of victim's fact and body. the police But jury found let know how all efforts that “evidence of where remarkable—statement further—and Court’s only “on condition” could admitted body its found and of event” makes discovered body have been theory would regresses the Court to playing grisly game of “hide and seek,” once exalting more the sporting theory of criminal justice which has been experiencing a decline in our juris prudence. With Justices White, Blackmun, and Rehn categorically reject the remarkable notion I quist, po that the lice in this guilty case were of unconstitutional misconduct, any conduct justifying the bizarre result reached the Court. Apart from a brief merits, comment on the however, wish to focus on the irrationality of applying increasingly dis exclusionary credited rule to case.
The Court Voluntary Concedes Williams’ Disclosures Were
Under precedents freely well-settled which the Court very acknowledges, clear that Williams had made valid waiver of his Fifth right Amendment to silence and his right Amendment to counsel when he Sixth led body. analysis child’s I do Indeed, even under Court’s contrary understand how a is possible. conclusion purports apply the appropriate The Court constitu familiar relinquish tional waiver standard the “intentional or privilege” ment or abandonment of a known test Zerbst, Ante, (1938). 404. of Johnson U. *26 assumes, deciding, The Court without that Williams’ conduct ibid., voluntary. concedes, It were as it must, and statements fully been informed of and that Williams had understood consequences the of their rights his constitutional and waiver. every either assumed or found element neces having Then, under its the sary to make out a valid waiver own test, keep jurors is determined truth the Court to the from the clear that corpus If all use the find the truth. delicti is to be barred pledged Wong poisonous tree” as “fruit of the under Sun v. Court United unlikely (1963), except theory suggested by States, 471 on the 371 U. S. justice prospects doing renders this case Court, Court exceedingly remote.
418 no astonishing conclusion that valid waiver reaches
Court been demonstrated. has by the Court’s compounded
This is remarkable result showing failed to evidentiary the State failure to define what Bustamonte, 412 Schneckloth Only recently, make. analyzed the distinction the Court 218, (1973), U. S. n. there Mr. voluntary right; of a between a act and the waiver for Court: stated Justice Stewart ‘voluntarily’ question person a has acted whether “[T]he he has whether question from the quite distinct we made right. question, trial The former ‘waived’ a States, can Brady v. United [742,] U. S. clear circum only by examining all the relevant be answered has coerced. latter stances to determine if he been knowledge.” of his question on the extent turns Richardson, in McMann U. Similarly, a waiver guilty plea a constituted we said since (1970), intelligent “it be an rights, must of a host circum of the relevant with sufficient awareness act ‘done ” today If likely consequences.’ the Court stances the Schneckloth fidelity with applied standards these now it could not reach the result holdings McMann announced. that Williams had abundant is uncontradicted
The evidence his present and of right of his to have counsel knowledge question his men- the Court does not to silence. Since right suggest that Williams it the mind boggles competence, tal body leading the child’s not understand could All consequences. serious the most other than have would are shown necessary to make out valid waiver elements acknowledged by Court; we thus are the record holding. its Court reached how the guess left basis for the unarticulated result reached but plausible One has asserted to talk with suspect once attorney, impossible becomes legally of an presence out *27 for him to waive right until he has seen an attorney. But rights are personal, and an otherwise valid waiver should not be brushed aside judges simply because attorney an was not present. operates Court’s holding to “imprison a inman his privileges,” Adams v. United States ex McCann, rel. 317 U. it (1942); conclusively presumes suspect a is legally incompetent to his change mind and tell truth until attorney an present. is It denigrates an individual to nonperson a whose free will has become hos to tage lawyer a so that until lawyer suspect consents, is deprived legal right or power to decide for himself that he wishes to a make rights disclosure. It denies that to counsel and are silence subject personal, nondelegable, to only a waiver by that The opinions support individual.2 of the Court’s judgment enlighten why do not to us as good conduct—whether or operate suspend bad—should right change Williams’ his mind and “tell all” at once rather than until he reached waiting Des Moines.3
In concurring opinion suggests Justice Powell Me. that the in this on result case turns whether Detective Leam ing’s “interrogation,” remarks constituted he them, views they were prick whether “statements" intended to I conscience of the accused. find it most remarkable judicial interpretation turn murder case should on that a state simply a question ment becomes because it is followed particularly is paternalistic rule in the anomalous Sixth Such only recently context, where this Court has Amendment discovered an right self-representation, allowing an accused independent constitutional lawyer trial, proceed without a once aware the absolute California, (1975). 422 U. consequences. Faretta v. S. 806 reached, light acknowledges Paradoxically, of the result Court get repeatedly stated: “When Des Moines see that Williams you story.” going to tell whole Read McKnight, I am Mr. saying he intended plain that to confess. context hold, effect, change that Williams could not goes then The Court Moines. Des he reached his mind until
420 suspect. The Court seems
incriminating disclosure he would “tell the whole saying to be that Williams said since have been content story” police at Des should Moines, course, waited; that would have been the wiser course, and of jurispru light of constitutional especially of nuances not turn applied by ought but murder case Court, dence a tenuous strands. such not any ante, In this is case, 405-406, the Court assures us, possible it waiver intends, at all what and a valid was course, but was not made. circumstances, quite Here, these many words; did to the murder so not confess to the body, his conduct in guiding was replete which incriminated him. And the record words, precisely with evidence that Williams knew what body. urge human guided police when he The doing save normal in all wrongdoing is, course, confess analysts hardened, professional psychiatrists as criminals, Confess Compulsion The Reik, demonstrated. T. have (1972).
(2) be Exclusionary Applied Rule Should Not Non-egregious Police Conduct assuming a technical waiver, if there was no Even mechanically gravely Court errs occurred, violation exclusionary considering rule without whether applying be in these Draconian doctrine should invoked judicial goals its or indeed whether conceivable circumstances, application its here. furthered will exclusionary judicial rule flaws of the The obvious Nar See Bivens v. Six Unknown remedy are familiar. Fed. 411 (1971) dis Agents, J., 403 U. S. C. cotics (Burger, Powell, (1976) 428 Stone U. 498-502 senting); Exclusionary concurring); Studying the J., Oaks, C. (Burger, (1970); Seizure, U. Chi. L. in Search Rule Rev. Exclusionary Foreign Law—Eng Rule Under Williams, land, J. Crim. L. (1961). Today’s holding interrupts has what been more perception rational of the constitutional utility and social excluding reliable evidence from the truth- seeking process. In its Fourth Amendment we context, have recognized now exclusionary in no rule is a personal sense judicially but a con right, ceived remedial designed device to safeguard and effectuate *29 guaranteed legal rights generally. Powell, Stone supra, v. at 482; United Janis, States v. 428 443-447 433, (1976); U. S. United Calandra, States v. 414 (1974); U. S. 347-348 see Alderman States, United v. 394 (1969). U. S. 174—175 We have repeatedly emphasized that deterrence of unconstitu tional or otherwise unlawful only conduct is the valid justification for excluding reliable and probative evidence the criminal factfinding Stone process. Powell, v. supra, at 485-486; United Janis, States supra, v. at 446, 458-459, 35; n. Peltier, United States v. 422 (1975). U. S. 531, 536-539 unlawfully obtained Accordingly, evidence automati cally excluded from the in factfinding process all circums variety tances.4 In a of contexts inquire we whether ap example unwillingness apply One familiar of this Court's pro exclusionary phylactic beyond scope requirement rule its natural is the may rights evidence seized in violation of the person another not be rights challenged a defendant whose own were not invaded. Alderman 165, 174-175 States, (1969). v. United U. may rule that the “taint” of a
Another is the constitutional violation be so that vitiated later events evidence which would not have been may yet obtained but for the constitutional violation be admissible. Wong States, Illinois, (1963); Sun v. United 371 U. S. see Brown (1975). S. 590 U. exclusionary on the use of the rule are Both these limitations incon If sistent with deterrent rationale. courts wished to enhance the its officers, on enforcement all evidence whose seizure deterrent effect law directly any sup violation constitutional would could be traced expand rule this that our refusal fashion pressed. It is evident balancing between “the benefits of additional extend represents a considered public “the exclusionary prosecuting interest ac ing rule” and those objectives sufficiently its promote rule will plication imposes society. “As cost it justify enormous rule has application device, with remedial objectives where its remedial to those areas been restricted United States v. efficaciously served.” thought are most Powell, 486- supra, at Calandra, Stone v. supra, 348; accord, at Illinois, 422 Janis, Brown v. U. S. supra; United States 491; concurring part); (1975) (Powell, J., 608-609 590, 606, Peltier, United 538-539: supra, States v. at applicable balancing process the familiar is, course, This stake. interests are at competing important to cases in which behind policies that “the recognition, belated, It is a albeit Powell, absolute,” Stone v. exclusionary are not rule infringe serious acknowledges so supra, 488. It at a criminal function of truth-seeking ment of crucial safe imperative to only when be allowed should prosecution important An factor rights. guard may properly issue the violation is whether amalgam *30 609 Illinois, supra, at Brown v. “egregious.” classed be as understandably The Court concurring part). J., (Powell, here police actions try to characterize does “egregious.” fails the Court striking it background, this
Against by application the benefits secured whether even to consider obvious outweigh its case exclusionary rule in this fact is due to the Perhaps the failure costs. social under Amendment, but Fourth under the arises not case the Sixth 436 Arizona, (1966), 384 v. U. S. Miranda perceives apparently The Court right to counsel. Amendment in these so different exclusionary rule be function of the uncriti mechanically be it must varying contexts acquitted on the of all or basis having them convicted cused of crime States, swpra, United the truth.” Alderman v. exposes which the evidence (1974). Calandra, 338, 414 U. 348 S. 175; States v. see United at
423 cally applied in all cases arising outside the Fourth Amendment.5
But this is demonstrably not the case where conduct collides with procedural Miranda's safeguards rather than with the Fifth Amendment privilege against compulsory self- incrimination. Involuntary and coerced sup admissions are pressed because of the unreliability inherent of a confession wrung from an unwilling suspect threats, brutality, or other coercion. Schneckloth Bustamonte, v. 412 U. at S., 242; Linkletter v. 381 U. Walker, 618, (1965); S. Stone v. Powell, 428 at S., concurring) U. 496-497 (Burger, ; C. J., States, v. United (1969) (Black, 394 U. S. Kaufman “ dissenting). J., agree We can all abhorrence on ‘[t]he ” society involuntary the use of Linkletter v. confessions,’ Walker, supra, preserve integrity need 638, and the Ibid.; of the human personality and individual free will. Alabama, (1960). Blackburn 206-207 U. S.
But use of their fruits carries no Williams’ disclosures and body risk whatever of for the was found where unreliability, would Court makes he said be found. since the Moreover, posed no no are to individual dangers issue voluntariness, dignity premised are safeguards or free will. Miranda’s unreliability confessions ex presumed long associated with by brutality they personal are not constitu threats; torted simply judicially prophylactic but are created rights, tional Tucker, Doyle Michigan (1974); 417 U. measures. Indeed, a Fourth Amendment case our course would if this were Term, Powell, application held that clear; only in Stone v. we last *31 minimal deterrent exclusionary corpus has such a rule in federal habeas relief should not officials that habeas enforcement effect on law unconstitutionally seized evidence was intro ground that granted on the by federal quantum provided of deterrence Since the duced at trial. issue, appears provision at vary the constitutional habeas does not with unarticulated, in the though differences fundamental, the Court sees applied in other contexts. exclusionary it is sanction when 424 Illinois, supra, at Brown Ohio, (1976); 617 v. 426 U. S. concurring part). J.,
606 (Powell, are volun incriminating disclosures where cases Thus, not violative and hence tarily coercion, made without of in violation one but are obtained Fifth Amendment, longer automatic. is no suppression prophylaxes, the Miranda con effect unlawful weigh the deterrent we Rather, justifi Fifth Amendment the normative with together duct, under interest strong “the against for cations suppression, of fact the trier available to justice making system of either trustworthy evidence which concededly all relevant society’s 'must consider . We also to adduce. . party seeks . of criminals ....’” prosecution in the effective interest Tucker, This individualized supra, at 450.6 Michigan v. the exclu respect to process with balancing consideration others, because in this possible sionary sanction case, infected with are not disclosures incriminating Williams’ forbids; Fifth Amendment compulsion the any element pose any danger this evidence does as noted nor, earlier, there is In process. short, unreliability factfinding evidence. to exclude this reason no implicated uniformly exclusionary rule is not
Similarly, aspects. We pretrial its particularly in the Sixth Amendment, have held to assure guarantee was of the counsel purpose core
“the with the accused was confronted trial, when 'Assistance’ advocacy of the and the of the law the intricacies both Ash, 413 U. S. United States v. prosecutor.” public (1973). 309 right fundamentally a “trial” to counsel
Thus, prosecu criminal of a complexities legal necessitated for long been used of Miranda have in violation obtained Statements Hass, (1975); Harris v. Oregon U. S. purposes. impeachment States, v. United (1971). also Walder See York, 401 U. S. New (1954). 347 U. S.
tion and the need to
offset,
the trier of fact,
power
of
the State
prosecutor.
as
See Schneckloth v. Bustamonte,
supra, at 241.
It is now thought
that modern law enforce
pretrial
ment involves
confrontations at which the defendant’s
fate might effectively be sealed before the
of
right
counsel
could attach.
In order to make meaningful
the defendant’s
opportunity to a fair trial
assistance of
at
counsel
trial—the core purposes of the
guarantee—the
counsel
Court formulated a per se rule guaranteeing counsel what
it has characterized as “critical” pretrial proceedings where
substantial
rights might
United States v.
endangered.
be
Wade,
monte, supra, at 238-239.
As we have seen in the Fifth setting, Amendment violations of prophylactic designed rules safeguard other constitutional guarantees and deter impermissible police conduct need not call for suppression the automatic of evidence without regard to the purposes served nor do Fourth Amend exclusion; ment violations merit uncritical suppression of evidence. In other situations we suppress eyewitness decline to iden tifications which products are the unnecessarily suggestive of lineups photo displays “very unless is a substantial there Simmons irreparable likelihood of misidentification.” v. States, United (1968). U. S. Recognizing that “ t likelihood misidentification which [i] violates Biggers, Neil defendant’s to due process,” 409 U. S. only we exclude (1972), evidence when essential safeguard integrity truth-seeking process. reliability is the test, short, evidence. tsphere in the Sixth Amendmen
So, too,
failure to have
setting
should not
pretrial
“knee-jerk”
counsel
lead to the
relevant and
reliable evidence.
suppression
Just
even
pretrial
“critical”
confrontations may often
uncounseled
fairly
derogation
and not
conducted
Sixth Amendment
Denno,
In any
purpose
the fundamental
of the Sixth Amend
event,
safeguard
ment
to
the fairness of the trial and
integrity
In
factfinding process.7
where the evidence
case,
body
of how the child’s
unquestioned
was found is of
relia
accepts
and since the Court
disclosures
bility,
Williams’
voluntary
as
there is no
either of fairness
uncoerced,
issue
evidentiary reliability
or
justify suppression
of truth.
It
suppression
appears
is mandated here for no other reason than
general
the Court’s
impression
may
it
have a beneficial
police conduct;
effect on future
the Court fails
indeed,
much in
say
holding.
even that
defense of its
whether considered under Miranda or the Sixth
Thus,
more
Amendment, there is no
reason to exclude the evidence in
was in Stone
Powell;8
holding
this case than there
was
7 Indeed,
pretrial proceedings
we determine whether
are “critical”
asking
protect
counsel is there needed
whether
the fairness of the
Ash,
(1973)
J.,
trial.
United States v.
413
322
See
U. S.
(Stewart,
Bustamonte,
concurring);
(1973).
Schneckloth v.
412 U. S.
239
It
danger
moving
is also clear
of factual error was the
force behind
Wade,
guarantee in
United
the counsel
such cases as
States
Here, noted, interrogation has there was no Mr. Blackmun Justice Massiah, in the sense that term was used in Escobedo v. Illi of (1964), nois, or Miranda. That the detective’s statement 378 U. S. equate appealed conscience is not a sufficient reason to to a Williams’ merely grilling. driving It could be that on police station well the road premised on the utter reliability of evidence sought to be sup pressed, irrelevancy of the claim constitutional to the criminal defendant's factual guilt or and the mini innocence, mal deterrent effect corpus of habeas police misconduct. This case, like Powell, Stone v. by way comes to us corpus habeas after fair a trial appeal in the state courts. Relevant factors this case are thus indistinguishable from Stone, those and from those other Fourth Amendment cases suggesting balancing approach toward utilization of the exclusionary sanction. Rather than adopting formalistic analysis varying with the provision invoked,9 apply we should rule on exclusionary the basis of its benefits and at least costs, those cases where the conduct at issue is outrageous far from being egregious.
In his opinion, Mr. intimates that he Justice Powell agrees there is little in applying exclusionary sense the sanc “ tion where the suppressed 'typically evidence is reliable and probative often the most information bearing guilt the or on ” Ante, of the defendant.' at 414. innocence Since he seems question to concede that in highly the evidence reliable probative, joining opinion and the Court’s can be ex only plained by an the has “question insistence that not been in presented briefs submitted to us.” Ibid. arguments the directly petitioner challenged But has the of the applicability exclusionary rule this for case, to Brief Petitioner and 31-32, of principles against invoked and federalism comity has Id., 69-73. of the conviction. at Moreover, reversal oral opportunity do so—petitioner first argument—the argued bury body the intersection where he had turned passing off to produced suggestive result might have the same without comments. many Clearly cases evidence in there will be where obtained violation inadmissible, rules is either for reasons related to the right-to-counsel of purposes the Sixth Amendment or to the deterrence of of normative facts, is, But this Court’s not such a police conduct. unlawful analysis hardly lump reasoned it into an undif case, furthers and it category apply for reasons which do not to it. conceptual ferentiated Stone v. Powell should be in decision intervening our that should just respondent argued extended to this case, Tr. of 49-50. Arg. not. 26-27, Oral Stone makes intervening
At if our decision in least, open exclusionary in case an of the rule this application only implications after which “should be resolved question proper fully plainly ruling explored,” have been such a Appeals Court of judgment course is vacate in light for reconsideration remand the case inter Indeed, only recently actually applied we case. Davis, Washington v. (1976), 426 U. decision of S. vening Heights v. Arlington issue to resolve the Housing (1977). Metropolitan Corp., Dev. 429 U. hold intervening difficulty applying found There, we no Appeals give a remand the Court ing ourselves without we reached the cor holding; its opportunity reconsider urging dissent over Mr. Justice directly, rect result White's in apply the declines either to Today, the Court a remand. Stone v. Powell, Powell which Mr. Justice tervening case of may controlling, or to remand for reconsidera well admits surprising since case; the more light all tion Powell today makes Justice Powell wrote Stone Mr. judgment. fifth for the vote Court's today Mr. reached the Court recalls The bizarre result States, United strong Justice Black’s dissent Kaufman *35 release after There, sought a defendant too, 394 U. at 231. S., here, appeal. affirmed on There, had been his conviction was not into and called guilt manifest, the defendant’s presented. This Court by constitutional claims question thought it reliable evidence had been relief because granted reaction, Black’s unconstitutionally Justice obtained. Mr. Powell, Stone long holding overdue foreshadowing our I expressed: fitting conclusion to the views have a serves as more more difficult to seemingly becoming “It punishment for the acceptance proposition gain the guilty things other desirable, being One equal. commentator, attempted who in vain to dissuade this Court from today’s thought necessary holding, point to out that there is ‘a strong public in convicting interest guilty.’ . . .
I". . . would not let criminal conviction become invulnerable collateral attack where there is re left maining probability or possibility that constitutional integrity commands related to the fact-finding process have been society violated. In such situations perform has failed its obligation prove beyond a reasonable doubt that the defendant committed crime. But it is quite a thing permit different collateral attack on a conviction after trial according process a to due clearly when the by proof defendant is, by his own admission, guilty charged. of the crime In . . . col lateral attacks corpus whether habeas § I always proceedings, require would the convicted defendant raise kind of constitutional claim that casts some shadow of guilt. a doubt on his This defend permitted ant is to attack his collaterally conviction al though deny he conceded at the trial and does not now that he had savings robbed the and loan association and although absolutely evidence makes that he clear doing. being knew what he was Thus, guilt certain, surely he does not get have I possibly agree new trial. cannot with the Court.” U. S., at 240-242. Kaufman, Black Mr. cannot Like Justice agree possibly the Court. with whom White, with Blackmun Justice Mr. Justice Mr. Rehnquist dissenting. Mr. Justice join, 10-year-old in this case killed a respondent child. sets aside his majority conviction, holding that certain
430 reliability were unconstitution unquestioned
statements of prob and under the circumstances ally obtained him, retry impossible makes it to him. Because there ably which previous the Constitution or in our cases nothing I requires the Court’s action, dissent. disappeared
The victim in this from a YMCA build case in 1968. Re ing Moines, Iowa, Des Christmas Eve shortly a bundle spondent carrying was seen thereafter wrapped in to his car. His car a blanket from the YMCA away was found in 160 miles on Christmas Davenport, Iowa, A Day. day then for On the warrant was issued his arrest. respondent voluntarily after Christmas surrendered himself police Davenport arraigned. where he local was picked re Des Moines drove to turn, Davenport, police, During him spondent up and drove back to Des Moines. trip respondent back to Des Moines made statements of of the victim’s evidencing knowledge his the whereabouts clothing body police body. to the leading presence without of course, statements made were, police since no was in the The issue counsel counsel car. respondent—who in this case is whether not to entitled police make statements without consultation with presence counsel1—validly rights. waived those and/or The relevant facts are as Before the Moines follows. Des respondent officers arrived in was twice Davenport, by Davenport police once a judge, once advised, Arizona, under right counsel Miranda v. U. S. right It not matter whether the in the does not make statements States, absence of counsel stems from v. United 377 U. Massiah Arizona, (1966). (1964), In either or Miranda U. S. case question is one of waiver. was not addressed in Massiah because Waiver being made an informant there the statements were and the defendant way knowing he had a him had no to talk to without counsel. *37 (1966). Respondent had any only event retained
counsel prior to the arrival of the Des Moines but police, had consulted with that subject counsel on the of talking to the police. His attorney, spoke Mr. with him McKnight, police the Des Moines office when respondent was in the Davenport police office. He respondent advised not to talk to police the Des Moines officers during trip to back Des but told him Moines, that he was to have “going tell officers where she is” he [the when arrived in victim] Des Moines. Respondent also with lawyer consulted a Davenport, who also him against advised talking to the police during the ride back to Des prior Moines. Thus, of arrival the Des police, Moines respondent been had effectively informed least four people that he need police not talk to the in the of during absence counsel trip to Des Moines. when Des Then, police Moines one of them arrived, advised inter alia, “that respondent, a right present had to an attorney any during questioning.” police The Des Moines officer respondent: you asked “[D]o fully Respondent understand that?” said that he did. The officer then him “advised him that wanted [the officer] to be to remember just sure what had him told [the officer] long because it was ride back to Des and he Moines and visiting.” would be Respondent then consulted [the officer] again Davenport with the who him attorney, advised not to police make statements to the officers so informed them not to officers—directing question him. After warnings by two two attorneys, officers, series sets trip to Des Moines commenced. judge, early trip in the one of the officers, Detective Sometime said: Learning, you
“I think give something want about while I down the road. . . Number want traveling one, we’re . conditions, raining, the weather it’s it’s you to observe driving very treacherous, visi sleeting, it’s freezing, bility going early it’s be dark this evening. poor, w They are predicting several inches sno for tonight, I you yourself person feel that are the only girl’s body yourself knows where this little you is, only you have been there and if on get a snow once, top yourself may you unable to find it. And, since we be going right past way will area into stop Des feel that we could Moines, and locate *38 parents that the girl the this little be should body, entitled to a for girl Christian burial the little who was snatched away them on Christmas mur and [E]ve I dered. And stop feel we should and locate it on the way in waiting rather than until morning trying possibly to come back out after a snow storm and not being able to it find at all.”
Respondent Leaming why asked Detective he thought their route to Des Moines would taking past be them the body, Leaming responded body that he knew the girl’s they was in the area of Mitchellville—a pass town would be “I ing way on the to Des Leaming Moines. then stated: you do want to answer me. to it don’t want discuss any think riding further. Just about it as we’re down the during On respondent road.” several the told trip, occasions the he tell story officers that would them the whole when he got McKnight—an to Des Moines and saw Mr. indication that he knew he was entitled to wait until his counsel was present talking police.2 before to the crystal statements, clear The record does not make these above-quoted by Leaming. some of statements them, the Detective followed Leaming’s long statement
However, the record reveals that was made not respondent’s leaving Davenport and that statement that he tell after would story they in Des Moines made the whole when arrived was “several times.” respondent’s infer It is reasonable to statement followed that trip respondent questions Leaming. During some of the rest asked investigation, they officers him, about about how treat would subjects a number of unrelated to the and about case.
COCO (cid:127) Some considerable time thereafter,3 any without prompting part state so official far as the record reveals, respondent police asked whether the had found the victim's subject shoes. of the victim’s had never been clothing police broached nor suggested by anything police had said. far So subject the record reveals, sug was gested respondent solely by police the fact that car then to pass about gas station respondent where had hidden the shoes. When the said were they unsure they whether had found respondent the shoes, directed them gas station. When way the car on its continued Des Moines, responded asked whether the had been blanket again subject found. Once had not previously been Respondent broached. directed the officers a rest area where he had left the blanket. car again When the con tinued, respondent said would direct the officers the victim’s so. he did body,
II test of strictest waiver which might applied to *39 Zerbst, this that case is set forth in Johnson v. 304 U. S. ante, and (1938), quoted majority, the at 404. by In right order to show that a has been under this test, waived prove the must relinquishment State “an intentional or aban right privilege.” majority of a known The donment preventing no new rule an accused who has retained creates lawyer’s right presence lawyer waiving a his to the simply that no majority The finds waiver during questioning. I disagree. That respondent knew of proved was in case. to the officers say anything to without advice and right his not record to established on this a moral presence of counsel is long Leaming’s was made in bad miles weather. trip The was leaving Davenport. Respondent’s shortly after state made was statement shortly arriving were made before clothes the victim’s ments about Des Moines. Mitchellville, near suburb of
certainty. by of the three right He advised officials was of he State—telling right— one that understood the least the lawyers.4 two he his further demonstrated Finally, knowledge right by informing police the he would that they story McKnight presence tell them the the when then, Moines. The issue in this case, arrived Des intentionally. right that respondent relinquished whether Respondent relinquished right his not to talk to the approached place where his crime when the car about usually to clothes. Men intend he had hidden victim’s sup they in the record to do, do what and there nothing was proposition respondent’s decision talk port Apparently, own will. anything but an exercise of his free respondent—who any prodding officers, from the without story he tell whole when earlier said that would had mind changed his Moines—spontaneously arrived Des approached of his when the car timing disclosures about However, had even places where he hidden the evidence. Leaming’s by Detective if statements were influenced his in the talk above-quoted statement, respondent’s decision product can be viewed as hardly absence counsel Leaming co was not an overborne will. statement respondent accompanied by request ercive; it was respondent hours before respond it; and was delivered Respondent’s make statement. waiver decided knowing thus and intentional. contrary conclusion rest on majority’s seems by re his to counsel respondent right “asserted”
fact by consulting consulting lawyer one taining and with conclusion that re supports How this with another. not to in the relinquishment talk spondent’s later *40 4 Moreover, at in fact received advice counsel on least two occa question police trip talk whether he should on the sions Des Moines.
435 absence counsel was unintentional is mystery. The fact respondent that consulted with counsel on question whether he should talk to the in counsel’s absence makes his later decision to talk in counsel’s absence better informed and, if anything, intelligent. more
The majority recognizes that even after this “assertion” of his right it counsel, would respondent found have waived not to talk counsel’s absence if his express—i. waiver had been him e., if the officers had asked in the car whether he would willing be questions to answer in counsel’s absence if “yes.” Ante, and he had answered 405. But waiver is not a formalistic concept. is Waiver shown whenever the facts establish that an accused knew of a right and intended to relinquish it. Such even if waiver, express,5 plainly not shown here. only other con 5 Appeals, The Courts of in administering Arizona, the rule of Miranda v. required have express not an rights waiver of the to silence and to counsel which accused must be advised about under that case. Waiver has been found where the accused is rights, informed those understands them, proceeds voluntarily and then questions answer the absence Marchildon, of counsel. v. 337, (CA8 1975) United States 519 F. 2d (“Waiver depends words, on no form of written or oral. It is to de termined surrounding from all of the Addressing circumstances. ourselves Hughes Swenson, to this issue we 866, held v. 452 F. 2d 867- (CA8 1971), that: appellant’s "The thrust of claim that a valid expressed waiver be effective cannot absent an declaration to that effect. supports appellant’s are cited to no independent We case which thesis and Fifth, contrary, Seventh, research To Ninth, discloses none. and Tenth effectively Circuits have held effect that if the defendant rights intelligently understanding advised of his declines them, ”); Ganter, exercise the waiver is valid’ United States v. 2dF. (CA7 1970) express (“[A]n statement the individual does required lawyer appears is not if defendant was want effectively rights intelligently of his and he then and understand advised ingly them”); James, to exercise United 528 F. 2d declined States 1976) prosecution (CA5 (“ ‘All that is that the de must show effectively rights intelligently of his and that he then fendant was advised Blackledge, understandingly ”); declined to exercise them’ Blackmon *41 436 majority’s implicit for is holding basis the sug
ceivable ante, 400-401, right gestion, at involved in Massiah v. States, 377 U. 201 from (1964), distinguished United S. as Arizona, 436 right involved Miranda v. 384 U. S. right not to be asked (1966), questions is a counsel’s right any questions a to answer absence rather than absence, right questions not to be asked counsel’s that the questions Such wafer- must waived are asked. be before murderer guilty a thin distinctions cannot determine whether only presence go purpose free. The conceivable for should an questioning protect accused during of counsel is have incriminating unanswered, answers. making Questions, coercion6—no matter how significance at all. Absent no only questioned 1976) (“[H]e reasonably 1070, (CA4 1072 2d 541 F. tele fully rights permitted his to make a having informed of after been question circumstances, suspect’s submission phone call. Under such clearly requesting lawyer is a waiver ing objection and without without United if, indeed, rights”); counsel, right he understands of his Johnson, Boston, United States (CA2 1974); v. F. 2d 1171 States v. 508 States, 140 U. S. App. Mitchell United (CA8 1972); 466 2d 1206 v. F. States, 397 162 Bond v. United (1970); F. 2d F. 2d 483 D. C. (CA10 1968). absolutely require question to the is no reason to additional
There litany just majority already cumbersome Miranda finds because right United States—providing exactly the case—Massiah v. same another event, is, in Miranda. In either the issue involved counsel necessary proof to establish majority recognizes, of the one as the relinquishment right under to counsel If an intentional waiver. of his by proof accused was informed Miranda is established absence, questions then voluntarily in counsel’s answered right then the Massiah relinquishment an intentional proof establishes similar right to counsel. forth Miranda Arizona rigid rule set prophylactic is a There ques questioning, requests presence counsel an arrestee that once accused depends on an indication tioning The rule must cease. answer whether or not to handle the decision will unable that he Michigan Mosley, counsel, see U. questions advice without inapplicable to concurring), and is this case (White, J., (1975) 2n. involved defined—an accused amply protected a rule requiring waiver before or simultaneously with the giving by him of an answer or the making by him of a *42 statement.
III
The consequence of the majority’s decision
major
as
is,
ity
extremely serious. A
killer
recognizes,
mentally disturbed
guilt
whose
not in question
is
may be
Why?
released.
Ap
parently the answer is that
majority
believes
that
law
enforcement officers acted in way
a
which involves
risk
some
of injury
society
that
and
such conduct should be deterred.
However,
officers’
did not,
likely
conduct
and was not
jeopardize
to,
the fairness of respondent’s
trial or in
way risk the conviction of an innocent man—the
against
risk
which the Sixth Amendment guarantee of assistance of counsel
designed
is
protect.
Powell v. Alabama,
(1932)
(1970); (1972). and U. S. 25 States, supra. see Massiah v. United But did nothing “wrong,” anything let alone To “unconstitutional.” anyone prophylactic not lost the intricacies rules Arizona, utterly Miranda the result this case seems for even senseless; supra, the reasons stated Part II, those rules as well as the of Massiah v. United applying rule States, supra, by respondent the statements made were In of these properly light admitted. the ma considerations, justified the result jority’s protest this case “clear violation” Sixth Fourteenth Amendments ring. respectfully hollow dissent. distressing has with whom Mr. Justice Justice White Blackmun, Mr. Rehnquist join, dissenting. Mr. Justice *43 curiae, 21 and States and as amici others, The State Iowa, procedural (as this strongly urge distinguished that Court’s constitutional) ruling Miranda v. 384 U. S. Arizona, however, agree re-examined and overruled. (1966), I, ante, this is not now the case Court, 397, with the at that issue need be considered. which I which What the Court chooses do and with here, respondent is to hold that Williams’ disagree, situation was States, mold of Massiah v. United 377 U. in the by it was dominated a denial (1964), is, of his Amendment Sixth to counsel after Williams against had been instituted him. The proceedings criminal rules that the Sixth Amendment was violated because Court “purposely Williams’ Learning sought during isola Detective lawyers much incriminating tion from his to obtain as informa Ante, possible.” J., concurring, tion as at and Powell, I ante, regard 410-413. cannot at that as unconstitutional per se. deliberately did not
First, police seek to isolate lawyers deprive from his so as to him of the assistance of counsel. Illinois, Cf. Escobedo 378 U. S. 478 (1964). The isolation in this case was a in necessary cident transporting Williams to county where the crime was committed.1
Second, Leaming’s purpose was not solely to in obtain criminating evidence. The victim had been only for missing days, two police and the could not be certain that she was dead. Leaming, course, and in accord with duty, was “hoping to find out where that girl was,” little ante, at 399, but such motivation does not equate with an intention to evade the Sixth Amendment.2 Moreover, Court seems ante, place to me to emphasis, undue at 392, 400, and aspersion on what it and the lower courts have chosen to call the “Christian burial speech,” and on Williams’ “deeply religious” convictions.
Third, not every attempt to elicit information should be ante, regarded as “tantamount interrogation,” 400. persuaded am not that Leaming’s observations and com ments, made as the car snowy slip traversed the pery Davenport miles between and Des Moines that winter afternoon, an interrogation, subtle, were direct of Wil ibid., Court’s Contrary statement, liams. the Iowa Supreme appears Court to me to thought have and held Williams, otherwise, State 2d N. 403-405 W. (1970), I agree. Williams, all, by after was counseled lawyers, arraigning judge in Davenport and warned attorney Kelly attorney McKnight objected nor *44 Neither to Williams’ Moines, although sought being Des each assurance returned to that he setting interrogated. That “the entire was conducive to . . . would not ante, J., concurring, coercion,” Powell, 412, at was more psychological any flight from Des Moines than to machinations to Williams’ attributable police Surely are to be blamed police. not for the facts that on Christmas and committed Eve that the weather was the murder was ominous. 2 Indeed, already promised Leaming had that he would tell Ante, story” Des Moines. at 392. “the when reached whole 440 travel conversations yet it was he who started the
police, and subject investigation. the criminal brought up I reviewing trip, Without further the circumstances of In say interrogation. would clear there no this re it is I Judge vigorous am in full accord with in his spect, Webster 509 2d dissent, implicitly F. with the views 227, 234-237, indicated Judge Judge Stephenson, Chief Gibson who joined him voting rehearing for en banc.
In it seems to me summary, holding that Court that Massiah violated con whenever engage duct, the absence of with the counsel, subjective desire to obtain information from after suspect arraignment. Such a rule is too broad. in custody frequently far Persons in response volunteer statements in stimuli other than e. terrogation. g., Cook, United States v. 530 F. 2d See, 145, 152-153 cert. denied, (1976) U. S. (CA7), (defendant officers in conversation engaged being while trans ported to Martin, United States magistrate); 511 F. 2d (CA8 1975) 150-151 initiated (agent conversation with provoking United damaging admission); States v. suspect, Menichino, (CA5 (incriminat 2d 1974) F. 939-941 ing volunteered during statements booking Haire process); Sarver, F. 2d 1262 (CA8), 404 U. denied, cert. S. 910 (1971) (statements response volunteered questioning wife). defendant’s When is no interrogation, there such statements should be admissible as long they truly are voluntary.3 point
The Massiah thus of no I being would consequence, vacate the judgment the Court of Appeals and remand Court, agree With all deference regarded do Massiah “constitutionally it as irrelevant” statements in that case were surreptitiously obtained, ante, quoted at opinion 400. The Massiah with dissenting approval Judge’s Circuit statement that “Massiah was more seriously upon imposed . . . because he did not even know he was interrogation government agent.” under S., 377 U. 206.
the case for consideration of the issue voluntariness, sense, Williams’ an issue the statements, Court of Appeals did not reach when the case was before it. I
One final word: can understand the discomfiture the obviously Court suffers expresses in Part IV of its opinion, ante, at and the discomfiture expressed like (now Justice United States District Judge) Stuart of the Iowa court in the compelled dissent he felt to make by this Court’s precedents, 182 W. at 406. This 2d, N. was a brutal, and heinous crime inflicted tragic, upon a young girl on the afternoon of the day before Christmas. With the exclusionary rule operating as the Court effectuates it, today probably decision means a practical matter, as no that, possible new be years trial will at eight this date after crime, respondent and that this will necessarily go free. course, is not standard which a case That, strictly kind judged. But, Judge Webster dissent below 2d, observed, placing F. case proper perspective: sensible and “The evidence of Wil guilt challenge liams’ No overwhelming. made to reliability fact-finding process.” am in full agreement with that observation.