*1 COLORADO SPRING. January Argued December 1986 Decided
No. 85-1517. *2 J., Court, Rehnquist, Powell, opinion delivered the of the which O’Connor, Scalia, JJ., J., White, Stevens, Blackmun, and C. Marshall, J., J., dissenting opinion, Brennan, joined. filed a which post, joined, p. 577. Phelan, Attorney Colorado,
Maureen Assistant General With her the cause on the briefs were petitioner. argued General, Woodard, Attorney Howe, Charles B. Duane Dep- General, and Richard H. Forman, Solicitor uty Attorney General. Robbins argued
Lawrence S. cause for United as amicus curiae reversal. On the brief were urging States Attorney Trott, Fried, Assistant General General Solicitor Deputy Bryson, Andrew J. Pincus. General Solicitor J. Benezra argued Seth With the cause for respondent. O’Leary, Margaret M. Van L. Thomas were him on brief David F. Vela.* III, Cleave Court. opinion delivered Powell
Justice Arizona, In the Court of the Fifth Amendment privi- suspect's held that if it is made volun- only is valid self-incrimination lege Id., at 444. This case intelligently. tarily, knowingly, awareness of all whether the question presents is relevant questioned crimes about which he *3 Fifth of his decision to waive the validity the determining Amendment privilege.
I and a Leroy Spring John February respondent during hunting and killed Donald Walker shot companion thereafter, an informant told Shortly in Colorado. trip Tobacco, Firearms Alcohol, of the Bureau agents (ATF) in the interstate engaged transporta- Spring informant also told the agents stolen firearms. The tion of in his the Colorado had discussed Spring participation time the ATF received this informa- agents At the killing. found and the had police had not been tion, body Walker’s in- on the no of his Based disappearance. received report to fire- from informant relating formation received an undercover agents opera- arms the ATF set violations, up 30, 1979, from On March Spring. firearms purchase tion Missouri, during in City, ATF arrested Kansas agents Spring purchase. the undercover Bar, A. Jordan filed a brief Criminal Defense
*Saskia for the Colorado amicus curiae Inc., urging affirmance. as Manak, Inbau, Schmidt, K. de Wayne James P. John Van E. W. Fred Hales, Crump, David Daniel B. California, Kamp, Attorney General of Summers, Jack E. Yelverton filed a brief for the State William C. amici curiae. California et al. as agent Spring
An ATF on scene of the arrest advised rights.1 Spring Miranda his rights was advised of his Miranda transported ATF second time after he was to the City. agents in ATF office, office Kansas At the also Spring stop question- advised that he had the ing stop presence time or to until the attorney Spring signed anof could be secured. then a writ- stating rights, form that he and waived ten understood his willing that he was to make a statement and answer and questions. agents questioned Spring ATF about the first firearms They Spring transactions that led his arrest. then asked juve- if he had a record. He criminal admitted he had a shooting years his old. nile record for aunt when was 10 agents Spring anyone if else. asked had ever shot Spring guy “I mumbled, ducked head and shot his another agents Spring if asked he had ever been to Colo- once.” agents Spring rado. no. The said asked whether he shot had a man named Walker Colorado and thrown his body Spring paused into a his snowbank. then ducked again point. head and said no. The interview ended at this May 1979, Colorado vis- On law enforcement officials jail City pursuant he was ited while Kansas gave Spring on the offenses. The officers arrest firearms warnings, Spring again signed a written *4 rights indicating form he understood his and was will- that ing Spring to The officers informed that waive them. they question him wanted to the Colorado homicide. about Spring get he it off indicated that “wanted to his chest.” approximately Spring con- hours, interview that lasted IV2 During Spring to the that time, fessed Colorado murder. Arizona, 1 Under this Court’s decision Miranda prior to a a criminal must “be custodial silent, right to remain that statement does that he has a he warned him, to right be that he has a make used as evidence and Id., attorney, appointed.” either retained presence of an 444. freely officers, not ter- to the did indicate a desire to talked questioning, requested and never counsel. minate the summarizing prepared a officers written statement signed Spring read, edited, and interview. statement. charged Spring in Colorado state with first- was court degree Spring suppress moved to statements murder. both ground on that his waiver of was invalid. agents’ ATF inform The trial court found that the failure to they ques- the March interview would before not tion him about the Colorado murder did affect his waiver rights: of his Miranda suggested topic questions
“[T]he of in- themselves anyone’ questions ‘shooting quiry. The dealt with and killing throwing specifically man named Walker and his body questions a snowbank Colorado. were gather relating subject designed to information to not readily apparent Spring. not evident or to was right of his to silent, had been advised remain answering questions, right stop have an Attor- during interrogation. ney present He not did elect to exercise his to remain silent or refuse to answer relating request questions homicide, to the nor did he interrogation.” during App. Pet. Counsel for Cert. 4-A.
Accordingly, the trial court concluded that the March 30 suppressed not on statement should Fifth Amendment grounds. subsequently court, however, The trial ruled that Spring’s guy statement that “shot another once” irrel- support evant, context of discussion did the inference that the statement related to the Walker homi- cide. For that the March 30 ad- reason, statement was not May court mitted at trial. The concluded that the freely, voluntarily, intelligently, 26 statement “was made [Spring’s] being properly fully rights, after advised of his suppressed, and that the should not be but statement should
569
May
Id.,
be
5-A.
26
admitted
evidence.”
at
state-
Spring
ment
admitted into
at trial,
was
evidence
was
first-degree
murder.2
convicted
argued
appeal
Spring
rights
on
that his waiver of Miranda
before the March 30
was invalid
statement
because he was
questioned
not informed that he
would
about
Colorado
Although
murder.
this statement was not introduced at
validity
claimed
its
was
trial, he
relevant because the
May
26 statement that
admitted
him was the ille-
gal
Wong
30 statement,
“fruit”
the March
see
Sun
States,
United
The affirmed Colorado of the reasoning Appeals, although Court of its in some re- differed (1985). spects. P. 2d court found: validity Spring’s rights “[T]he waiver constitutional upon totality must be determined an examination of the surrounding making of the circumstances of the voluntary, statement to if the determine waiver was knowing intelligent. always No one factor is deter- analysis. in Whether, minative extent, and to what subject has been informed aware interrogation prior matter of the to its commencement is simply one factor in the court’s evaluation of the total although may major circumstances, it be a or even de- Id., terminative factor in some situations.” at 872-873 (citations omitted).
The court concluded:
“Here, absence of an advisement to that he questioned would be homicide, about Colorado the lack of to conclude basis that at the time of the reasonably execution of the waiver, he have ex- could pected that the would extend to that sub- ject, undermining are determinative factors the valid- ity (emphasis original). Id., of the waiver.” at 874 joined by Erickson, Justice Justice Rovira, dissented as to stating: the resolution of this issue, duty “Law enforcement officers have no under Mi- custody person charges being randa to inform a of all investigated prior him. All that Mi- requires randa is that the he advised that has right anything says to remain silent, can used him in court, will be that he has lawyer lawyer present with a consult during interrogation, and to have the if
and that he cannot afford a law- yer appointed represent Id., one will be him.” at 880 (citations omitted). dissenting justices “ample support found evidence
trial court’s conclusion that waived his Miranda rights” rejected majority’s “the conclusion of his Miranda on March was invalid *7 simply because he was not of all informed matters that would police.” questioned Id., be reviewed when was the at proceedings 881. The court remanded the case further opinion. consistent with its granted certiorari,
We
II police dispute May There is no 26 the obtained the con- complete warnings informing fession after Miranda and after questioned that he would be the homi- about Colorado Supreme cide. The Colorado Court nevertheless held that suppressed the confession should have been it because was illegal A “fruit” of the March 30 statement. confession poisonous if cannot be “fruit of the tree” the tree is itself 3 Supreme The Colorado followed lead of several Federal Appeals holding suspect’s subject Courts of that a of awareness mat interrogation ter one in determining factor to be considered is valid. United whether a waiver of the Fifth Amendment (CA2 Garrison, 140, 141 Burger, States v. 1984); Carter 728 F. 2d v. F. (CA4 1981) curiam), (per 68, denied, (1982); 2d cert. U. S. 952 (CA5 1981). McCrary, United States v. 323, 643 F. 2d Other Courts Appeals subject have found that a awareness of matter of interrogation determining validity is not relevant factor in of a Anderson, Miranda waiver. App. 75, United States v. D. C. 1210, 1212, Campbell, (1976); United States n. 533 F. 2d n. 3 1970). (CA9 97, 99, F. n. 1 2d validity inquiry, poisonous. therefore, centers on the Our the March 30 statement.4
A of the United States Constitution The Fifth Amendment compelled provides person no criminal “shall be privilege “is himself.”5 This case to be a witness interrogation.” fully during period applicable of custodial Miranda, Arizona, at 460-461.6 S., Miranda v. 384 U. safeguards proper that “without the Court concluded process in-custody suspected persons compelling pressures inherently of crime contains accused the individual’s will to resist and which work to undermine compel speak otherwise do so him to where he would not freely.” Accordingly, Id., at 467. the Court formulated the safeguards “procedural effective to secure the now-familiar privilege against Id., 444. The self-incrimination.” warnings designing Court’s fundamental aim *8 right to choose between was “to assure that the individual’s throughout speech in- unfettered the silence and remains terrogation process.” Id., at 469. suspect may purpose, a this waive his
Consistent with privilege, “provided the waiver is made Fifth Amendment voluntarily, knowingly intelligently.” Id., at 444. twice informed case, the law enforcement officials 4 rehearing to the argued petition The for the first time in its State Elstad, Supreme Oregon in v. Colorado this Court’s decision Court May re 470 U. 298 renders the 26 statement admissible without S. Supreme gard validity The the March 30 waiver. Colorado the argument to make this to the trial court noted that the State would be free 2d, question our in on P. at 876. The whether decision Ore remand. admitting May 26 gon independent basis for the provides v. Elstad us this case. statement therefore is before applicable through States the Due Process privilege This to the Malloy v. Amendment of the Constitution. Clause of the Fourteenth (1964). Hogan, 378 U. S. was obtained dispute the statement at issue State does not meaning the during interrogation” within Miranda. a “custodial precisely of his Fifth the Amendment manner specified As noted, Miranda. we have indicated signed that he understood the enumerated writ- expressing ten form Fifth intention to waive his Amend- privilege. specifically ment The trial court found that “there no element duress or coercion used to induce [on App. 1978].” statements Pet. March for Cert. Despite warnings explicit finding by 3-A. and the the Spring argues court, trial that his March 30 statement was in compelled privi- effect Fifth violation of his lege signed being because waiver form without aware questioned that he would be about the Colorado homicide. Spring’s argument meaning compulsion past strains the breaking point.
B “compelled” meaning A within statement is not of the “voluntarily, knowingly Fifth Amendment if an individual intelligently” privilege. waives his constitutional Mi- inquiry supra, Arizona, randa whether a v. 444. coerced two Moran waiver is “has distinct dimensions.” (1986): Burbine, right relinquishment “First the of the must have been voluntary product in the that it was the of a free sense intimidation, coercion, rather than and deliberate choice deception. been made Second, the waiver must have a full of the with awareness both of nature consequences being decision abandoned and ‘totality Only if it. of the circumstances abandon surrounding *9 interrogation’ reveal both uncoerced requisite comprehension may and choice level rights properly Miranda conclude that the have court Ibid, (quoting Fare C., v. Michael waived.” been (1979)). 707, U. S. Spring’s no doubt that decision to his
There waive Fifth is voluntary. privilege alleges was He no “coer- Amendment by physical violence or other deliberate cion of a confession Oregon [his] Elstad, will,” to v. calculated break means none. His 298, 312 and the trial court found U. S. supply allegation police in him with certain that the failed to any not to of the traditional indicia of formation does relate , . . and conditions of detention . coercion: “the duration physical police him, attitude of the toward manifest sap pressures or sustain his state, mental the diverse which powers v. of resistance and self-control.” Culombe Connect (1961) J.). (opinion icut, Frankfurter, S. U. Spring’s [was] and his evidence that “will overborne Absent critically impaired” capacity for self-determination because Connelly, police ibid.; see Colorado v. conduct, of coercive (1986),his waiver of his Fifth Amend 157, 163-164 voluntary privilege under this decision ment was Court’s Miranda. is no of his Fifth
There also doubt waiver privilege knowingly intelligently made: Amendment he had the is, understood that anything he as remain silent and that said could be used require against not him. The Constitution does evidence every suspect possible that a criminal know and understand privilege. consequence Fifth of a waiver of the Oregon supra, supra, Elstad, Burbine, v. at 422; Moran at simpler guarantee The Fifth is both 316-317. Amendment’s may compelled A more fundamental: defendant not be any respect. against The Miranda himself be witness by ensuring warnings protect that a offi- talk to law enforcement knows that choose present, only discontinue talk- cers, to talk with counsel ing warnings ensure that a time. intelligent requiring knowing of these privi- fully of this constitutional that the advised lege, including whatever he chooses to critical advice that say may him. be used as evidence *10 allegation Spring In this case there is no that failed to un- privilege guaranteed by derstand the basic the Fifth Amend- allegation any Nor ment. is there that he misunderstood the consequences speaking freely of to the law enforcement offi- indisputably cials. sum, we think that the trial court was finding Spring’s knowingly correct that waiver was made intelligently meaning within the of Miranda.
hH b-1 Spring relies on this Court’s statement in Miranda that A “any evidence that the accused was threatened, tricked, or cajoled into a waiver will. . . show that the defendant did not ” voluntarily privilege. waive his S.,U. 476. He con- potential subjects tends that the failure to inform him of the interrogation police trickery deception of constitutes the rendering Miranda, condemned in thus his waiver of Mi- Spring, randa invalid. however, reads statement regard in Miranda out context and without due to the con- warnings designed stitutional the Miranda were protect. finding
We note first Colorado courts made no trickery.7 official In fact, as noted trial above, the court expressly found that “there was no element of duress or coer Supra, cion used to induce statements.” at 573. “Though agents] The trial court it is [the found: true that ATF did not specifically Spring advise part that a of their would include questions homicide, questions about sug the Colorado themselves gested topic inquiry.” App. According to Pet. for Cert. 4-A. Supreme Court, Spring Colorado “It is unclear whether was told they agents question specifically wanted to him about the firearms simply violations for which he agents began was arrested whether the questioning Spring making concerning subject without statement interrogation. agents matter What is clear is that the did not tell they going questions killing ask were him about decision to waive his original Walker before made his 2d, P. rights.” at 871. *11 agents ATF that failure of the insists nevertheless questioned about the mur him that he inform would “trickery” his sufficient to invalidate official
der constituted
privilege,
if
official
Amendment
even the
of his Fifth
waiver
assuming
Even
to “coercion.”
did not amount
conduct
reject
proposed
Spring’s
merit, we
his conclu
has
distinction
by
en
held that mere silence
law
This
has never
sion.
interroga
subject
matter of an
officials as
forcement
suspect’s
“trickery”
a
waiver of
sufficient to invalidate
is
tion
today.8
rights,
expressly
so to hold
we
decline
and
warnings
Miranda
given,
it
difficultto see how
are
is
Once Miranda
suspect
a
to misunderstand the na-
could cause
silence
official
right
to refuse to answer
of his constitutional
ture
—“his
might
any question
incriminate him.”
which
United States
(1977).
Washington,
seems
“Indeed,
S.
it
U.
v.
one who is told
is free
refuse to answer
self-evident
questions
posture
complain
in
curious
to later
that his
a
compelled.”
a
Ibid.
have held that valid
We
answers were
require
not
that an individual be informed of all
does
making
his
or all information
“useful”
decision
information
“might
affec[t]
. .
his decision to confess.” Moran v.
.
“[W]e
S.,
422.
read the
Burbine, 475 U.
have never
Con-
police supply
suspect
require
a
with a
that the
stitution
help
him calibrate his self-interest
flow of information to
circumstances,
misrepre
found affirmative
In certain
the Court has
by
police
a
sufficient to invalidate
waiver of
sentations
Lynumn
Illinois,
g.,
e.
See,
privilege.
Fifth
(1963) (misrepresentation
by
a
police officers that
would be de
dependent
if
her
child
she failed to co
prived of state financial aid for
involuntary);
subsequent confession
operate with authorities rendered the
(1959)
York,
Spano v. New
(misrepresentation
by the sus
deciding speak rights.” whether to stand Ibid.9 only Here, the additional information could affect the wisdom essentially voluntary aof Miranda not its waiver, and know- ing Accordingly, nature. the failure of the law enforcement subject officials to inform matter of the in- terrogation could not affect decision to waive his constitutionally significant Fifth Amendment in a manner.
B *12 holding specificallyrequired This Court’s in Miranda police suspect a the inform criminal that he has the anything says against remain silent and that be used qualification explicit him. is no There of this broad and warning. warning, conveys The Miranda, as in formulated suspect privilege to a the nature of his constitutional and the consequences of.abandoning Accordingly, it. we hold that a suspect’s possible subjects all awareness of of determining of advance not relevant to voluntarily, knowingly, intelligently whether privilege. waived his Fifth Amendment f—I <1 judgment Supreme of the reversed, Colorado Court is proceedings and the case is remanded for further not incon- opinion. sistent with this
It is so ordered. Marshall, Justice with whom Justice Brennan joins, dissenting. respondent
The Court asserts there is “no doubt” that Spring’s decision to Fifth waive his
9 Miranda would problems Such an extension of of in spawn numerous terpretation suspect’s because number of could affect a decision factors to waive his rights. requirement would also vitiate to a the Miranda rule’s great police important informing extent “virtue of prosecutors specificity” pretrial questioning with as to how a of C., (1979). must be conducted. Fare v. Michael 707, 442 U. S. 718 578 intelligently knowingly, voluntarily, Ante, made. Sup- agree, however, with the Colorado 574. I 573 and
at significant in the circum- doubt exists that a reme carry the State has failed case and thus of this stances “heavy recognized Arizona, in Miranda v. U. S. burden” validity (1966), establishing the constitutional 436, 475 alleged waiver. prior the Court acknowl- decisions, our with Consistent suspect’s edges of fundamental constitutional protections rights, self-incrimina- such as Miranda’s interrogation, during must be examined a custodial tion “‘“totality light Ante, circumstances.””’ at quoting Burbine, 412, Moran v. 573, (1979); quoting C., Fare v. Michael U. S. turn Butler, 441 id., North Carolina v. U. S. 724-725; see also (1979); Zerbst, S. U. 369, 374-375 Johnson (1938). proceeds to the Court hold that Nonetheless, investigation topics specific in- known to the crimes and questioning begins terrogating are “not rele- validity before officers affect,” to, and in this case “could vant” privilege. Fifth Amendment decision waive his *13 suspect’s Ante, It seems to me self-evident that a at 577. necessarily will to waive this influenced decision scope of the matters his awareness of the and seriousness investigation. under attempt of such
To to minimize the relevance information only by saying of” it “could affect the wisdom the sus- pect’s opposed validity of waiver, as to the ven- waiver, validity inapposite Ibid. Wisdom and tures an distinction. concepts, overlapping as in this context are circumstances assessing validity may the of a waiver also be relevant to any given highly Indeed, to its context. relevant wisdom piece admittedly recognizes “critical” of advice the Court today suspect says be informed that whatever he —that certainly be used as evidence him—is relevant any suspect’s of decision to submit to custodial wisdom consulting interrogation lawyer. Ante, his at without first principled 574. The concluding Court offers no for basis determining validity this is a relevant factor for of a totality that, but under what it calls a of the circum- analysis, suspect’s knowledge specific stances of the crimes topics previously questioning and other identified for can - never be. quotes supra, The Court Burbine, Moran v. at 422, as holding require that “a valid waiver does not that an indi- making vidual be informed of all information ‘useful’in his ‘might decision or all affec[t] information that .. . added). (emphasis Ante, decision to confess.’” at 576 No- ticeably holding today: “[A] similar is the Court’s possible subjects questioning of awareness all the determining” advance validity is not relevant to added). (emphasis Ante, of his waiver. at 577 This phraseology important question careful avoids the whether subjects the lack of indication of the identified determining validity is relevant to of the suspect’s waiver. among
I would include the relevant factors for consider- waiving ation whether before his Fifth Amendment through was aware, either the circumstances sur- rounding through specific his arrest or advisement from the arresting interrogating officers, crime or crimes he suspected committing they and about which intended questions. knowledge to ask To hold that such is relevant informing police would not undermine the “‘virtue prosecutors specificity’ pretrial questioning with as to how a (quoting conducted,” ante, of a must be at n. 9 supra, 718), Fare v. C., Michael nor would it interfere legitimate interrogation techniques. with the use of Indeed, requiring the officers to articulate at a minimum the crime or *14 crimes for which the has been arrested could contrib- significantly ensuring ute toward that the arrest was fact suspect’s compelled lawful statement not because of stage problem an error at alone, this a we addressed (1975), Illinois, Brown 422 v. U. 590, S. 601 under 580 assumption the defendant’s on the
Fourth rights in that case had Fifth Amendment waiver of Dunaway voluntary. York, U. S. also v. See New been (1979) warnings (voluntary waiver of Miranda 200, analysis). requirement for Fourth Amendment threshold in this tactics utilized case demonstrate Spring not receive. information did the relevance of the Spring evidently hoped agents obtain from valid confes- charge for which he arrested the federal firearms sion to parlay of into an admission additional confession and then ques- expected first-degree could not have murder. agreed separate offense when he latter, about the tions rights, in a different and was a as it occurred State waive his investigative the normal focus of law outside violation state agents. Tobacco, and Firearms Alcohol, of federal point “Interrogators the first admission describe Royal ‘breakthrough’ ‘beachhead,’ R. & as the Interviewing Interrogation: Art of Schutt, The Gentle S. (1976), Manual and which once A Professional Guide advantages,’ give enormous ‘tactical F. them obtained will Interrogation and Confessions 82 Criminal Reid, Inbau & J. (2d (1985) 1967).” Oregon Elstad, 298, v. 470 U. S. ed. aspects psy- dissenting). The coercive J., (Brennan, chologicalploy an case, in this when combined with intended easily may surprise to a which far too rise level element of justified light deception,1 of Miranda’s strict be cannot now, by en rejects, the notion that “mere silence” law The Court deprive the of information so relevant officials forcement deception, though to waive his rights as to constitute his decision can in which an affirmative acknowledge that circumstances arise it does will by officers invalidate the waiver. misrepresentation Burbine, Ante, In Moran I n. 8. dissenting opinion, which stated that “there can joined Justice Stevens’ deceptive . . . between a misstatement and no distinction constitutional attorney by police fact retained critical the concealment family I would hold the or his has offered assistance the accused ques- inform their intent to present in the case to officers’ failure *15 requirements suspect’s that the waiver and confession be voluntary, intelligent. knowing, and 384 U. atS., 445-458, suspect signed If 475-476. a has a waiver form with the in- making regarding specificallyalleged tention of a statement a today crime, the Court would hold this waiver valid with respect questioning regardless about crime, other of charges its relation to the believes he will be given asked to address. Yet once this waiver is and the in- protections tended made, statement afforded Miranda against “inherently compellingpressures” of the custodial interrogation, effectively dissipated. id., have Addi- entirely questioning separate tional about and more serious suspicions activity advantage of criminal can take unfair of suspect’s psychological unexpected ques- state, as the compulsive pressures suddenly reappear. tions cause the technique interrogation, suspect’s Given understand- ing topics planned is, therefore, at the very assessing least “relevant” to whether his decision talk voluntarily, knowingly, intelligently to the officers was made. only suspect’s suspected
Not is the awareness crimi- relevant, nal conduct its absence be determinative in a given proving case. The burden of that a State’s voluntary, intelligent knowing, “heavy” waiver was is a “‘indulge Miranda, S., one. every 384 U. at 475. We are to presumption reasonable waiver’ of funda- rights” presume “‘not mental constitutional we shall acquiescence rights.’” fundamental Johnson, the loss of Arizona, critical. Miranda v. equally him tion about the Colorado murder especially places heavy 384 U. on the S. burden State to “[A]ny privilege against show that waived self-incrimination: tricked, threatened, cajoled evidence that the accused was into a waiver will, course, voluntarily privi- show that the defendant did not waive his Id., added). (emphasis at 476 I lege.” interrogating would hold that the preconceived plan officers’ this case obtain a waiver from with particular separate, to a reference federal offense then ask about a un- precludes carrying heavy from related state offense the State burden. (citations omitted); Williams, see Brewer at 464 S., 304 U. (1977). that, to conclude It is reasonable *16 ques- agents’ ask intent to of the federal known had he offense for which to the murder unrelated about a tions interrogation consented to not have he would arrested, attorney. consulting case, I would his first without Supreme accept of the Colorado the determination therefore knowingly, voluntarily, and intelli- did rights. P. 2d gently his Fifth waive (1985).2 873-874
I dissent. today precludes the courts of Colorado in the Court’s decision Nothing recognizing a independently as State’s Constitution interpreting that from scope as a relevant the intended knowledge of validly against self- waived determining whether factor Const., II, § 18. Art. Colo. law. See incrimination under state