MORAN, SUPERINTENDENT, RHODE ISLAND DEPARTMENT OF CORRECTIONS v. BURBINE
No. 84-1485
Supreme Court of the United States
Argued November 13, 1985—Decided March 10, 1986
475 U.S. 412
Constance L. Messore, Special Assistant Attorney General of Rhode Island, argued the cause for petitioner. With her on the briefs was Arlene Violet, Attorney General.
Deputy Solicitor General Frey argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Fried, Assistant Attorney General Trott, Andrew J. Pincus, and Sara Criscitelli.
Robert B. Mann argued the cause for respondent. With him on the brief was William F. Reilly.*
*Briefs of amici curiae urging reversal were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Steve White, Chief Assistant Attorney General, Karl S. Mayer, Assistant Attorney General, and Ann K. Jensen and Dane R. Gillette, Deputy Attorneys General, Charles A. Graddick, Attorney General of Alabama, Norman C. Gorsuch, Attorney General of Alaska, Robert K. Corbin, Attorney General of Arizona, Duane Woodard, Attorney General of Colorado, Austin J. McGuigan, Chief State‘s Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Neil F. Hartigan, Attorney General
Briefs of amici curiae urging affirmance were filed for the American Bar Association by William W. Falsgraf, Steven H. Goldblatt, and Charles G. Cole; for the National Association of Criminal Defense Lawyers et al. by Judith H. Mizner, Nancy Gertner, and Scott Baldwin; and for the National Legal Aid and Defender Association et al. by Kim R. Fawcett, James R. Neuhard, Jack D. Novik, and John A. MacFadyen.
JUSTICE O‘CONNOR delivered the opinion of the Court.
After being informed of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (1966), and after executing a series of written waivers, respondent confessed to the murder of a young woman. At no point during the course of the interrogation, which occurred prior to arraignment, did he request an attorney. While he was in police custody, his sister attempted to retain a lawyer to represent him. The attorney telephoned the police station and received assurances that respondent would not be questioned further until the next day. In fact, the interrogation session that yielded the inculpatory statements began later that evening. The question presented is whether either the conduct of the police or respond-
I
On the morning of March 3, 1977, Mary Jo Hickey was found unconscious in a factory parking lot in Providence, Rhode Island. Suffering from injuries to her skull apparently inflicted by a metal pipe found at the scene, she was rushed to a nearby hospital. Three weeks later she died from her wounds.
Several months after her death, the Cranston, Rhode Island, police arrested respondent and two others in connection with a local burglary. Shortly before the arrest, Detective Ferranti of the Cranston police force had learned from a confidential informant that the man responsible for Ms. Hickey‘s death lived at a certain address and went by the name of “Butch.” Upon discovering that respondent lived at that address and was known by that name, Detective Ferranti informed respondent of his Miranda rights. When respondent refused to execute a written waiver, Detective Ferranti spoke separately with the two other suspects arrested on the breaking and entering charge and obtained statements further implicating respondent in Ms. Hickey‘s murder. At approximately 6 p.m., Detective Ferranti telephoned the police in Providence to convey the information he had uncovered. An hour later, three officers from that department arrived at the Cranston headquarters for the purpose of questioning respondent about the murder.
That same evening, at about 7:45 p.m., respondent‘s sister telephoned the Public Defender‘s Office to obtain legal assistance for her brother. Her sole concern was the breaking and entering charge, as she was unaware that respondent was then under suspicion for murder. She asked for Richard Casparian who had been scheduled to meet with respondent earlier that afternoon to discuss another charge unrelated to either the break-in or the murder. As soon as the conversa-
At 8:15 p.m., Ms. Munson telephoned the Cranston police station and asked that her call be transferred to the detective division. In the words of the Supreme Court of Rhode Island, whose factual findings we treat as presumptively correct,
“A male voice responded with the word ‘Detectives.’ Ms. Munson identified herself and asked if Brian Burbine was being held; the person responded affirmatively. Ms. Munson explained to the person that Burbine was represented by attorney Casparian who was not available; she further stated that she would act as Burbine‘s legal counsel in the event that the police intended to place him in a lineup or question him. The unidentified person told Ms. Munson that the police would not be questioning Burbine or putting him in a lineup and that they were through with him for the night. Ms. Munson was not informed that the Providence Police were at the Cranston police station or that Burbine was a suspect in Mary‘s murder.” State v. Burbine, 451 A. 2d 22, 23-24 (1982).
At all relevant times, respondent was unaware of his sister‘s efforts to retain counsel and of the fact and contents of Ms. Munson‘s telephone conversation.
Less than an hour later, the police brought respondent to an interrogation room and conducted the first of a series of interviews concerning the murder. Prior to each session, respondent was informed of his Miranda rights, and on three separate occasions he signed a written form acknowledging that he understood his right to the presence of an attorney and explicitly indicating that he “[did] not want an attorney
Prior to trial, respondent moved to suppress the statements. The court denied the motion, finding that respondent had received the Miranda warnings and had “knowingly, intelligently, and voluntarily waived his privilege against self-incrimination [and] his right to counsel.” App. to Pet. for Cert. 116. Rejecting the contrary testimony of the police, the court found that Ms. Munson did telephone the detective bureau on the evening in question, but concluded that “there was no ... conspiracy or collusion on the part of the Cranston Police Department to secrete this defendant from his attorney.” Id., at 114. In any event, the court held, the constitutional right to request the presence of an attorney belongs solely to the defendant and may not be asserted by his lawyer. Because the evidence was clear that respondent never asked for the services of an attorney, the telephone call had no relevance to the validity of the waiver or the admissibility of the statements.
The jury found respondent guilty of murder in the first degree, and he appealed to the Supreme Court of Rhode Island. A divided court rejected his contention that the Fifth and Fourteenth Amendments to the Constitution required the suppression of the inculpatory statements and affirmed the conviction. Failure to inform respondent of Ms. Munson‘s efforts to represent him, the court held, did not undermine the validity of the waivers. “It hardly seems conceivable that the additional information that an attorney whom he did not know had called the police station would have added significantly to the quantum of information necessary for the
After unsuccessfully petitioning the United States District Court for the District of Rhode Island for a writ of habeas corpus, 589 F. Supp. 1245 (1984), respondent appealed to the Court of Appeals for the First Circuit. That court reversed. 753 F. 2d 178 (1985). Finding it unnecessary to reach any arguments under the Sixth and Fourteenth Amendments, the court held that the police‘s conduct had fatally tainted respondent‘s “otherwise valid” waiver of his Fifth Amendment privilege against self-incrimination and right to counsel. Id., at 184. The court reasoned that by failing to inform respondent that an attorney had called and that she had been assured that no questioning would take place until the next day, the police had deprived respondent of information crucial to his ability to waive his rights knowingly and intelligently. The court also found that the record would support “no other explanation for the refusal to tell Burbine of Attorney Munson‘s call than ... deliberate or reckless irresponsibility.” Id., at 185. This kind of “blameworthy action by the police,” the court concluded, together with respondent‘s ignorance of the telephone call, “vitiate[d] any claim that [the] waiver of counsel was knowing and voluntary.” Id., at 185, 187.
II
In Miranda v. Arizona, the Court recognized that custodial interrogations, by their very nature, generate “compelling pressures which work to undermine the individual‘s will to resist and to compel him to speak where he would not otherwise do so freely.” 384 U. S., at 467. To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self-incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealings with the accused. In particular, prior to the initiation of questioning, they must fully apprise the suspect of the State‘s intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to “have counsel present ... if [he] so desires.” Id., at 468-470. Beyond this duty to inform, Miranda requires that the police respect the accused‘s decision to exercise the rights outlined in the warnings. “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease.” Id., at 473-474. See also Edwards v. Arizona, 451 U. S. 477 (1981).
Respondent does not dispute that the Providence police followed these procedures with precision. The record amply supports the state-court findings that the police administered the required warnings, sought to assure that respondent understood his rights, and obtained an express written waiver prior to eliciting each of the three statements. Nor does respondent contest the Rhode Island courts’ determination that he at no point requested the presence of a lawyer.
A
Echoing the standard first articulated in Johnson v. Zerbst, 304 U. S. 458, 464 (1938), Miranda holds that “[t]he defendant may waive effectuation” of the rights conveyed in the warnings “provided the waiver is made voluntarily, knowingly and intelligently.” 384 U. S., at 444, 475. The inquiry has two distinct dimensions. Edwards v. Arizona, supra, at 482; Brewer v. Williams, 430 U. S. 387, 404 (1977). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Fare v. Michael C., 442 U. S. 707, 725 (1979). See also North Carolina v. Butler, 441 U. S. 369, 374-375 (1979).
Under this standard, we have no doubt that respondent validly waived his right to remain silent and to the presence of counsel. The voluntariness of the waiver is not at issue. As the Court of Appeals correctly acknowledged, the record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements. 753 F. 2d, at 184. Indeed it appears that it was respondent, and not the
Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Under the analysis of the Court of Appeals, the same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights. See, e. g., Oregon v. Elstad, 470 U. S. 298, 316-317 (1985); United States v. Washington, 431 U. S. 181, 188 (1977). Cf. Hill v. Lockhart, 474 U. S. 52, 56 (1985); McMann v. Richardson, 397 U. S. 759, 769 (1970). Once it is determined that a suspect‘s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State‘s intention to use his statements to secure a conviction, the analysis
Nor do we believe that the level of the police‘s culpability in failing to inform respondent of the telephone call has any bearing on the validity of the waivers. In light of the state-court findings that there was no “conspiracy or collusion” on the part of the police, 451 A. 2d, at 30, n. 5, we have serious doubts about whether the Court of Appeals was free to conclude that their conduct constituted “deliberate or reckless irresponsibility.” 753 F. 2d, at 185; see
B
At oral argument respondent acknowledged that a constitutional rule requiring the police to inform a suspect of an attorney‘s efforts to reach him would represent a significant extension of our precedents. Tr. of Oral Arg. 32-33. He contends, however, that the conduct of the Providence police was so inimical to the Fifth Amendment values Miranda seeks to protect that we should read that decision to condemn their behavior. Regardless of any issue of waiver, he urges, the Fifth Amendment requires the reversal of a conviction if the police are less than forthright in their dealings with an attorney or if they fail to tell a suspect of a lawyer‘s unilateral efforts to contact him. Because the proposed modification ignores the underlying purposes of the Miranda rules and because we think that the decision as written strikes the proper balance between society‘s legitimate law enforcement interests and the protection of the defendant‘s Fifth Amendment rights, we decline the invitation to further extend Miranda‘s reach.
At the outset, while we share respondent‘s distaste for the deliberate misleading of an officer of the court, reading Miranda to forbid police deception of an attorney “would cut [the decision] completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U. S. 341, 345 (1976). As is now well established, “[t]he Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect‘s] right against compulsory self-incrimination [is] pro-
Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney‘s efforts to reach him. While such a rule might add marginally to Miranda‘s goal of dispelling the compulsion inherent in custodial interrogation, overriding practical considerations counsel against its adoption. As we have stressed on numerous occasions, “[o]ne of the principal advantages” of Miranda is the ease and clarity of its application. Berkemer v. McCarty, 468 U. S. 420, 430 (1984); see also New York v. Quarles, supra, at 662-664 (concurring opinion); Fare v. Michael C., 442 U. S., at 718. We have little doubt that the approach urged by respondent and endorsed by the Court of Appeals would have the inevitable consequence of muddying Miranda‘s otherwise relatively clear waters. The legal questions it would spawn are legion: To what extent should the police be held accountable for knowing that the accused has counsel? Is it enough that someone in the station house knows, or must the interrogating officer himself know of counsel‘s efforts to contact the suspect? Do counsel‘s efforts to talk to the suspect concerning one criminal investigation trigger the obligation to inform the defendant before interrogation may proceed on a wholly separate matter? We are unwilling to modify Miranda in a
Moreover, problems of clarity to one side, reading Miranda to require the police in each instance to inform a suspect of an attorney‘s efforts to reach him would work a substantial and, we think, inappropriate shift in the subtle balance struck in that decision. Custodial interrogations implicate two competing concerns. On the one hand, “the need for police questioning as a tool for effective enforcement of criminal laws” cannot be doubted. Schneckloth v. Bustamonte, 412 U. S. 218, 225 (1973). Admissions of guilt are more than merely “desirable,” United States v. Washington, 431 U. S., at 186; they are essential to society‘s compelling interest in finding, convicting, and punishing those who violate the law. On the other hand, the Court has recognized that the interrogation process is “inherently coercive” and that, as a consequence, there exists a substantial risk that the police will inadvertently traverse the fine line between legitimate efforts to elicit admissions and constitutionally impermissible compulsion. New York v. Quarles, supra, at 656. Miranda attempted to reconcile these opposing concerns by giving the defendant the power to exert some control over the course of the interrogation. Declining to adopt the more extreme position that the actual presence of a lawyer was necessary to dispel the coercion inherent in custodial interrogation, see Brief for American Civil Liberties Union as Amicus Curiae in Miranda v. Arizona, O. T. 1965, No. 759, pp. 22-31, the Court found that the suspect‘s Fifth Amendment rights could be adequately protected by less intrusive means. Police questioning, often an essential part of the investigatory process, could continue in its traditional form, the Court held, but only if the suspect clearly under-
The position urged by respondent would upset this carefully drawn approach in a manner that is both unnecessary for the protection of the Fifth Amendment privilege and injurious to legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney‘s efforts to contact him would contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society‘s legitimate and substantial interest in securing admissions of guilt. Indeed, the very premise of the Court of Appeals was not that awareness of Ms. Munson‘s phone call would have dissipated the coercion of the interrogation room, but that it might have convinced respondent not to speak at all. 753 F. 2d, at 185. Because neither the letter nor purposes of Miranda require this additional handicap on otherwise permissible investigatory efforts, we are unwilling to expand the Miranda rules to require the police to keep the suspect abreast of the status of his legal representation.
We acknowledge that a number of state courts have reached a contrary conclusion. Compare State v. Jones, 19 Wash. App. 850, 578 P. 2d 71 (1978), with State v. Beck, 687 S. W. 2d 155 (Mo. 1985) (en banc). We recognize also that our interpretation of the Federal Constitution, if given the dissent‘s expansive gloss, is at odds with the policy recommendations embodied in the American Bar Association Standards of Criminal Justice. Cf. ABA Standards for Criminal Justice 5-7.1 (2d ed. 1980). Notwithstanding the dissent‘s protestations, however, our interpretive duties go well beyond deferring to the numerical preponderance of lower court decisions or to the subconstitutional recommen-
III
Respondent also contends that the Sixth Amendment requires exclusion of his three confessions.2 It is clear, of course, that, absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches. United States v. Gouveia, 467 U. S. 180, 187 (1984); Kirby v. Illinois, 406 U. S. 682, 689 (1972) (opinion of Stewart, J.). See Brewer v. Williams, 430 U. S., at 400-401. And we readily agree that once the right has attached, it follows that the police may not interfere with the efforts of a defendant‘s attorney to act as a “‘medium’ between [the suspect] and the State” during the interrogation. Maine v. Moulton, 474 U. S. 159, 176 (1985); see Brewer v. Williams, supra, at 401, n. 8. The difficulty for respondent is that the interrogation sessions that yielded the inculpatory statements took place before the initiation of “adversary judicial proceedings.” United States v. Gouveia, supra, at 192. He contends, however, that this circumstance is not fatal to his Sixth Amendment claim. At least in some situations, he argues, the Sixth Amendment protects the integrity of the
We are not persuaded. At the outset, subsequent decisions foreclose any reliance on Escobedo and Miranda for the proposition that the Sixth Amendment right, in any of its manifestations, applies prior to the initiation of adversary judicial proceedings. Although Escobedo was originally decided as a Sixth Amendment case, “the Court in retrospect perceived that the ‘prime purpose’ of Escobedo was not to vindicate the constitutional right to counsel as such, but, like Miranda, ‘to guarantee full effectuation of the privilege against self-incrimination....‘” Kirby v. Illinois, supra,
Questions of precedent to one side, we find respondent‘s understanding of the Sixth Amendment both practically and theoretically unsound. As a practical matter, it makes little sense to say that the Sixth Amendment right to counsel attaches at different times depending on the fortuity of whether the suspect or his family happens to have retained counsel prior to interrogation. Cf. id., at 220-221. More importantly, the suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment‘s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any “criminal prosecutio[n],”
Respondent contends, however, that custodial interrogations require a different rule. Because confessions elicited during the course of police questioning often seal a suspect‘s fate, he argues, the need for an advocate—and the concomitant right to noninterference with the attorney-client relationship—is at its zenith, regardless of whether the State has initiated the first adversary judicial proceeding. We do not doubt that a lawyer‘s presence could be of value to the suspect; and we readily agree that if a suspect confesses, his attorney‘s case at trial will be that much more difficult. But these concerns are no more decisive in this context than they were for the equally damaging preindictment lineup
Because, as respondent acknowledges, the events that led to the inculpatory statements preceded the formal initiation of adversary judicial proceedings, we reject the contention that the conduct of the police violated his rights under the
IV
Finally, respondent contends that the conduct of the police was so offensive as to deprive him of the fundamental fairness guaranteed by the Due Process Clause of the
We hold therefore that the Court of Appeals erred in finding that the Federal Constitution required the exclusion of the three inculpatory statements. Accordingly, we reverse and remand for proceedings consistent with this opinion.
So ordered.
JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
This case poses fundamental questions about our system of justice. As this Court has long recognized, and reaffirmed only weeks ago, “ours is an accusatorial and not an inquisitorial system.” Miller v. Fenton, 474 U. S. 104, 110 (1985).1 The Court‘s opinion today represents a startling departure from that basic insight.
The case began in March 1977 with the discovery of Mary Jo Hickey, unconscious and disheveled in a deserted parking lot, lying in a pool of blood, with semen on her clothes, her dentures broken, and a piece of heavy, bloodstained metal nearby. Days later, Brian Burbine, then 20 years old, went to Maine and stayed with friends. According to the friends’ testimony at trial, he was upset, and described a night out with Hickey, who was then 35. After several drinks,
The murder of Mary Jo Hickey was a vicious crime, fully meriting a sense of outrage and a desire to find and prosecute the perpetrator swiftly and effectively. Indeed, by the time Burbine was arrested on an unrelated breaking-and-entering charge, the Hickey murder had been the subject of a local television special.3 Not surprisingly, Detective Ferranti, the Cranston Detective who “broke” the case, was rewarded with a special commendation for his efforts.4
The recognition that ours is an accusatorial, and not an inquisitorial system nevertheless requires that the government‘s actions, even in responding to this brutal crime, respect those liberties and rights that distinguish this society from most others. As Justice Jackson observed shortly after his return from Nuremberg, cases of this kind present “a real dilemma in a free society . . . for the defendant is shielded by such safeguards as no system of law except the Anglo-American concedes to him.”5 Justice Frankfurter similarly
The Court‘s holding focuses on the period after a suspect has been taken into custody and before he has been charged with an offense. The core of the Court‘s holding is that police interference with an attorney‘s access to her client during that period is not unconstitutional. The Court reasons that a State has a compelling interest, not simply in custodial interrogation, but in lawyer-free, incommunicado custodial interrogation. Such incommunicado interrogation is so important that a lawyer may be given false information that prevents her presence and representation; it is so important that police may refuse to inform a suspect of his attorney‘s
It is not only the Court‘s ultimate conclusion that is deeply disturbing; it is also its manner of reaching that conclusion. The Court completely rejects an entire body of law on the subject—the many carefully reasoned state decisions that have come to precisely the opposite conclusion.10 The Court
Police interference with communications between an attorney and his client is a recurrent problem. The factual variations in the many state-court opinions condemning this interference as a violation of the Federal Constitution suggest the
The near-consensus of state courts and the legal profession‘s Standards about this recurrent problem lends powerful support to the conclusion that police may not interfere with communications between an attorney and the client whom they are questioning. Indeed, at least two opinions from this Court seemed to express precisely that view.20 The Court today flatly rejects that widely held view and responds to this recurrent problem by adopting the most restrictive interpretation of the federal constitutional restraints on police
The exact reach of the Court‘s opinion is not entirely clear because, on the one hand, it indicates that more egregious forms of police deception might violate the Constitution, ante, at 432, while, on the other hand, it endeavors to make its disposition of this case palatable by making findings of fact concerning the voluntariness of Burbine‘s confessions that the trial judge who heard the evidence declined to make.21 Before addressing the legal issues, it therefore seems appropriate to make certain additional comments about what the record discloses concerning the incriminating statements made by Burbine during the 21-hour period that he was detained by the Cranston and Providence police on June 29 and June 30, 1977.
I
As the majority points out, with respect to attorney Munson‘s telephone call, the Rhode Island Supreme Court‘s summary of factual findings provides the common ground for analysis:
“At approximately 8:15 [on June 29, 1977], Ms. Munson called the Cranston police station and asked that her call be transferred to the detective division. A male voice responded with the word ‘Detectives.’ Ms. Munson identified herself and asked if Brian Burbine was being held; the person responded affirmatively. Ms. Munson explained to the person that Burbine was represented by attorney Casparian who was not available; she further stated that she would act as Burbine‘s legal counsel in the event that the police intended to place him in a lineup or question him. The unidentified person told Ms. Munson that the police would not be questioning Burbine or putting him in a lineup and that they were
through with him for the night. Ms. Munson was not informed that the Providence police were at the Cranston police station or that Burbine was a suspect in Mary‘s murder. The trial justice found as a fact that Ms. Munson did make the call, but further found that there was no collusion or conspiracy on the part of the police ‘to secrete [Burbine] from his attorney . . . .‘” State v. Burbine, 451 A. 2d 22, 23–24 (1982).22
Although this paragraph accurately describes attorney Munson‘s 8:15 call, the significance of the false response to her inquiry is best understood in the context of the events that were then proceeding in the police station. The difficulty in reconstructing some of those events illustrates the need for strict presumptions regarding the consequences of custodial interrogation—a need this Court has repeatedly recognized.23
At about 3 p.m. on June 29, 1977, Cranston police officers apprehended respondent Burbine and two other men (DiOrio and Sparks) in “a burned out building in the Cranston area.” S. H. 6, 180. The three men were taken to the Cranston police station, charged with “breaking and entering,” and placed in separate rooms. After noticing that DiOrio and Burbine lived at 306 New York Avenue in Providence, Detective Ferranti talked to DiOrio and was told that Burbine was the only “Butch” at that address. Id., at 146–147.
At approximately 4:30, Ferranti “went in the room where Burbine was” and asked him “if there was anybody that he knew by the name of Butch on the street, and he said he was the only Butch.” Id., at 148.24 After the brief questioning about the identity of “Butch,” Detective Ferranti left Burbine in the interrogation room—where he remained until about 9 p.m.25—and interrogated DiOrio and Sparks. They both “made damaging statements relative to Burbine being involved in the murder in Providence“; Ferranti therefore “immediately contacted Providence Police.” Id., at 149–150. The Providence officers—Captain Wilson (the Chief of Detectives), Lieutenant Gannon, and Detective Trafford—responded promptly, and arrived at the Cranston station be
After arriving at the station, the three Providence officers, as well as Ferranti and a second Cranston officer (Lieutenant Ricard), either remained in the large central room in the basement of the Cranston police station, or participated in the questioning of DiOrio and Sparks in interrogation rooms adjacent to that large central room.
It was at this point—with Burbine alone in another adjacent room, with Providence police on hand, with police from two Departments questioning Sparks and DiOrio about Burbine‘s involvement in the Hickey homicide—that attorney Munson telephoned. Her call arrived at 8:15; she asked for “Detectives,” and was told that the police “would not be questioning Burbine” and that they were “through” with him for the night. These statements were false. Moreover, she was not told that Burbine would be questioned about a homicide rather than the breaking-and-entering charge on which he had been arrested, and she was not told that Providence police were at the Cranston police station preparing to question Burbine about a Providence crime.
At about 9, some 45 minutes after Munson received the assurance that the police were “through” with Burbine, the officers completed their questioning of DiOrio and Sparks and were prepared to question Burbine. There is no dispute about the fact that Burbine was brought into the central room at about 9, that all five police officers were then present, and that Burbine appeared somewhat upset and professed that he “‘didn‘t do anything wrong.‘” S. H. 21. Detective Ferranti testified that this statement was in response to questions from the Providence police about the Hickey
Detective Ferranti then went into that room and, according to the testimony of the Providence officers, spent either “ten minutes” or from “five to ten minutes” alone with Burbine.28 The record does not tell us whether he told Burbine that Sparks and DiOrio had just given statements implicating him in the Hickey homicide. Nor does it resolve the question whether Burbine‘s decision to confess was made before his session with Ferranti or as a result of that session. The Court evidently makes the former assumption, for it asserts that Burbine “initiated” this encounter. Ante, at 421–422. However, the state courts made no finding about this
Lieutenant Gannon and Detective Trafford of the Providence police accompanied Detective Ferranti “back into the room.” During the period between 9:30 and 10:20 p.m., they administered Miranda warnings and typed out a four-page statement which Burbine signed, waiving his constitutional rights, acknowledging his responsibility for the death of Hickey, and reciting his version of that event. Ferranti alternately testified that Burbine was “coherent” and “incoherent” at the time of this questioning. Id., at 157-158; Trial Tr. 198, 208-209. Apparently for the first time since his arrival at the station in the afternoon, the police then brought Burbine some food. S. H. 160, Trial Tr. 205.
After obtaining Burbine‘s signature on the first written statement at 10:20 p.m., the police were still not “through” with Burbine. Burbine‘s first statement included no mention of the clothes that he had been wearing, or of a glass that was found with Hickey‘s purse a few blocks from the homicide. Soon after the completion of the first statement, and after the Providence and Cranston officers had discussed the first statement and expressed pleasure with their success,30
The following morning, the officers obtained a warrant, conducted a search of Burbine‘s residence, and seized the clothing that he had described in the second statement. In the meantime, Burbine was arraigned in Cranston court on the charge for which he had been arrested. Still without counsel, Burbine pleaded guilty to malicious damage. After the Cranston proceeding, Providence officers instantly arrested him for the Hickey homicide. Trial Tr. 501. Burbine was taken to the Providence police station, where he executed a third waiver of rights and identified the coat and jacket that the officers had seized. Shortly after noon, Major Leyden called the Public Defender‘s Office and requested counsel for Burbine because he would be placed in a lineup. Id., at 423.
Thus, although there are a number of ambiguities in the record, the state-court findings established (1) that attorney Munson made her call at about 8:15 p.m.; (2) that she was given false information; (3) that Burbine was not told of her
II
Well-settled principles of law lead inexorably to the conclusion that the failure to inform Burbine of the call from his attorney makes the subsequent waiver of his constitutional rights invalid. Analysis should begin with an acknowledgment that the burden of proving the validity of a waiver of constitutional rights is always on the government.32 When
In applying this heavy presumption against the validity of waivers, this Court has sometimes relied on a case-by-case totality of the circumstances analysis.36 We have found, however, that some custodial interrogation situations require strict presumptions against the validity of a waiver. Miranda established that a waiver is not valid in the absence of certain warnings. Edwards v. Arizona, 451 U. S. 477 (1981), similarly established that a waiver is not valid if police
Indeed, as Miranda itself makes clear, proof that the required warnings have been given is a necessary, but by no means sufficient, condition for establishing a valid waiver. As the Court plainly stated in Miranda, “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth
In this case it would be perfectly clear that Burbine‘s waiver was invalid if, for example, Detective Ferranti had “threatened, tricked, or cajoled” Burbine in their private preconfession meeting—perhaps by misdescribing the statements obtained from DiOrio and Sparks—even though, under the Court‘s truncated analysis of the issue, Burbine fully understood his rights. For Miranda clearly condemns threats or trickery that cause a suspect to make an unwise waiver of his rights even though he fully understands those rights. In my opinion there can be no constitutional distinction—as the Court appears to draw, ante, at 423-424—between a deceptive misstatement and the concealment by the police of the critical fact that an attorney retained by the accused or his family has offered assistance, either by telephone or in person.38
Thus, the Court‘s truncated analysis, which relies in part on a distinction between deception accomplished by means of an omission of a critically important fact and deception by means of a misleading statement, is simply untenable. If, as the Court asserts, “the analysis is at an end” as soon as the suspect is provided with enough information to have the capacity to understand and exercise his rights, I see no reason why the police should not be permitted to make the same kind of misstatements to the suspect that they are apparently allowed to make to his lawyer. Miranda, however, clearly
As the Court notes, the question is whether the deceptive police conduct “deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Ante, at 424. This question has been resoundingly answered time and time again by the state courts that, with rare exceptions,40 have correctly understood the meaning of the Miranda opinion.41 The ma-
In short, settled principles about construing waivers of constitutional rights and about the need for strict presumptions in custodial interrogations, as well as a plain reading of the Miranda opinion itself, overwhelmingly support the conclusion reached by almost every state court that has considered the matter—a suspect‘s waiver of his right to counsel is invalid if police refuse to inform the suspect of his counsel‘s communications.
III
The Court makes the alternative argument that requiring police to inform a suspect of his attorney‘s communications to
The Court‘s balancing approach is profoundly misguided. The cost of suppressing evidence of guilt will always make the value of a procedural safeguard appear “minimal,” “marginal,” or “incremental.” Indeed, the value of any trial at all seems like a “procedural technicality” when balanced against the interest in administering prompt justice to a murderer or a rapist caught redhanded. The individual interest in procedural safeguards that minimize the risk of error is easily discounted when the fact of guilt appears certain beyond doubt.
What is the cost of requiring the police to inform a suspect of his attorney‘s call? It would decrease the likelihood that custodial interrogation will enable the police to obtain a confession. This is certainly a real cost, but it is the same cost that this Court has repeatedly found necessary to preserve
In Escobedo v. Illinois, 378 U.S. 478 (1964), we excluded a confession by a defendant who had not been permitted to consult with his lawyer, and whose lawyer had not been permitted to see him. We emphasized the “lesson of history” that our system of justice is not founded on a fear that a suspect will exercise his rights. “If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.” Id., at 490. In Miranda v. Arizona, 384 U.S. 436 (1966), we similarly stressed this character of our system, despite its “cost,” by unequivocally holding that an individual has an absolute right to refuse to respond to police interrogation and to have the assistance of counsel during any questioning.44 Thus, as a matter of law, the assumed right of the police to interrogate a suspect is no right at all; at best, it is a mere privilege terminable at the will of the suspect. And, more recently in Dunaway v. New York, 442 U.S. 200 (1979), the Court corrected the long-held but mistaken view of the police that they have some sort of right to take any sus-
Just as the “cost” does not justify taking a suspect into custody or interrogating him without giving him warnings simply because police desire to question him, so too the “cost” does not justify permitting police to withhold from a suspect knowledge of an attorney‘s communication, even though that communication would have an unquestionable effect on the suspect‘s exercise of his rights. The “cost” that concerns the Court amounts to nothing more than an acknowledgment that the law enforcement interest in obtaining convictions suffers whenever a suspect exercises the rights that are afforded by our system of criminal justice. In other words, it is the fear that an individual may exercise his rights that tips the scales of justice for the Court today. The principle that ours is an accusatorial, not an inquisitorial, system, however, has repeatedly led the Court to reject that fear as a valid reason for inhibiting the invocation of rights.
If the Court‘s cost-benefit analysis were sound, it would justify a repudiation of the right to a warning about counsel itself. There is only a difference in degree between a presumption that advice about the immediate availability of a lawyer would not affect the voluntariness of a decision to confess, and a presumption that every citizen knows that he has a right to remain silent and therefore no warnings of any kind are needed. In either case, the withholding of information serves precisely the same law enforcement interests. And in both cases, the cost can be described as nothing more than
In cases like Escobedo, Miranda, and Dunaway, the Court has viewed the balance from a much broader perspective. In all these cases—indeed, whenever the distinction between an inquisitorial and an accusatorial system of justice is implicated—the law enforcement interest served by incommunicado interrogation has been weighed against the interest in individual liberty that is threatened by such practices. The balance has never been struck by an evaluation of empirical data of the kind submitted to legislative decisionmakers—indeed, the Court relies on no such data today. Rather, the Court has evaluated the quality of the conflicting rights and interests. In the past, that kind of balancing process has led to the conclusion that the police have no right to compel an individual to respond to custodial interrogation, and that the interest in liberty that is threatened by incommunicado interrogation is so precious that special procedures must be followed to protect it. The Court‘s contrary conclusion today can only be explained by its failure to appreciate the value of the liberty that an accusatorial system seeks to protect.
IV
The Court also argues that a rule requiring the police to inform a suspect of an attorney‘s efforts to reach him would have an additional cost: it would undermine the “clarity” of the rule of the Miranda case. Ante, at 425-426. This argument is not supported by any reference to the experience in the States that have adopted such a rule. The Court merely professes concern about its ability to answer three quite simple questions.46
V
At the time attorney Munson made her call to the Cranston police station, she was acting as Burbine‘s attorney. Under ordinary principles of agency law the deliberate deception of Munson was tantamount to deliberate deception of her client.49 If an attorney makes a mistake in the course of her representation of her client, the client must accept the consequences of that mistake.50 It is equally clear that when an attorney makes an inquiry on behalf of her client, the client is entitled to a truthful answer. Surely the client must have the same remedy for a false representation to his lawyer that he would have if he were acting pro se and had propounded the question himself.
The majority brushes aside the police deception involved in the misinformation of attorney Munson. It is irrelevant to the Fifth Amendment analysis, concludes the majority, because that right is personal; it is irrelevant to the Sixth
In my view, as a matter of law, the police deception of Munson was tantamount to deception of Burbine himself. It constituted a violation of Burbine‘s right to have an attorney present during the questioning that began shortly thereafter. The existence of that right is undisputed.51 Whether the source of that right is the Sixth Amendment, the Fifth Amendment, or a combination of the two is of no special importance, for I do not understand the Court to deny the existence of the right.
The pertinent question is whether police deception of the attorney is utterly irrelevant to that right. In my judgment, it blinks at reality to suggest that misinformation which prevented the presence of an attorney has no bearing on the protection and effectuation of the right to counsel in custodial interrogation. The majority parses the role of attorney and suspect so narrowly that the deception of the attorney is of no
In sharp contrast to the majority, I firmly believe that the right to counsel at custodial interrogation is infringed by police treatment of an attorney that prevents or impedes the attorney‘s representation of the suspect at that interrogation.
VI
In a variety of circumstances, however, the Court has given a more thoughtful consideration to the requirements of due process. For instance, we have concluded that use of a suspect‘s post-Miranda warnings silence against him violates the due process requirement of fundamental fairness because such use breaches an implicit promise that “silence will carry no penalty.”58 Similarly, we have concluded that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.”59 We have also concluded that vindictive prosecution violates due process;60 so too does vindictive sentencing.61 Indeed, we have emphasized that analysis of the “voluntariness” of a confession is frequently a “convenient shorthand” for reviewing objectionable police methods under the rubric of the due process requirement of fundamental fairness.62 What emerges from
these cases is not the majority‘s simple “shock the conscience” test, but the principle that due process requires fairness, integrity, and honor in the operation of the criminal justice system, and in its treatment of the citizen‘s cardinal constitutional protections.
In my judgment, police interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits. Just as the police cannot impliedly promise a suspect that his silence will not be used against him and then proceed to break that promise, so too police cannot tell a suspect‘s attorney that they will not question the suspect and then proceed to question him. Just as the government cannot conceal from a suspect material and exculpatory evidence, so too the government cannot conceal from a suspect the material fact of his attorney‘s communication.
The majority does not “question that on facts more egregious than those presented here police deception might rise to a level of a due process violation.” Ante, at 432. In my view, the police deception disclosed by this record plainly does rise to that level.
VII
This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen as a nettlesome obstacle to the pursuit of wrongdoers—as in an inquisitorial society—then the Court‘s decision today makes a good deal of sense. If a lawyer is seen as an aid to the understanding and protection of constitutional rights—as in an accusatorial society—then today‘s decision makes no sense at all.
Like the conduct of the police in the Cranston station on the evening of June 29, 1977, the Court‘s opinion today serves the goal of insuring that the perpetrator of a vile crime is punished. Like the police on that June night as well, however, the Court has trampled on well-established legal principles and flouted the spirit of our accusatorial system of justice.
I respectfully dissent.
Notes
“Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. See Ploscowe, The Development of Present-Day Criminal Procedures in Europe and America, 48 Harv. L. Rev. 433, 457-458, 467-473 (1935). Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation. ‘The law will not suffer a prisoner to be made the deluded instrument of his own conviction.’ 2 Hawkins, Pleas of the Crown, c. 46, §34 (8th ed. 1824). The requirement of specific charges, their proof beyond a reasonable doubt, the protection of the accused from confessions extorted through whatever form of police pressures, the right to a prompt hearing before a magistrate, the right to assistance of counsel, to be supplied by government when circumstances make it necessary, the duty to advise an accused of his constitutional rights—these are all characteristics of the accusatorial system and manifestations of its demands. Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police for the purpose of eliciting disclosures or confession is subversive of the accusatorial system.”
See generally Malloy v. Hogan, 378 U. S. 1, 7-8 (1964); Rogers v. Richmond, 365 U. S. 534, 540-541 (1961); Bram v. United States, 168 U. S. 532, 543-545 (1897).
Most importantly, the dissent‘s misreading of Miranda itself is breathtaking in its scope. For example, it reads Miranda as creating an undifferentiated right to the presence of an attorney that is triggered automatically by the initiation of the interrogation itself. Post, at 463. Yet, as both Miranda and subsequent decisions construing Miranda make clear beyond refute, “‘the interrogation must cease until an attorney is present’ only ‘[i]f the individual states that he wants an attorney.‘” Michigan v. Mosley, 423 U. S. 96, 104, n. 10 (1975) (emphasis added), quoting Miranda, 384 U. S., at 474. The dissent condemns us for embracing “incommunicado questioning . . . as a societal goal of the highest order that justifies police deception of the shabbiest kind.” Post, at 439. We, of course, do nothing of the kind. As any reading of Miranda reveals, the decision, rather than proceeding from the premise that the rights and needs of the defendant are paramount to all others, embodies a carefully crafted balance designed to fully protect both the defendant‘s and society‘s interests. The dissent may not share our view that the
Quite understandably, the dissent is outraged by the very idea of police deception of a lawyer. Significantly less understandable is its willingness to misconstrue this Court‘s constitutional holdings in order to implement its subjective notions of sound policy. Id., at 168.
“If the State may arrest on suspicion and interrogate without counsel, there is no denying the fact that it largely negates the benefits of the constitutional guaranty of the right to assistance of counsel. Any lawyer who has ever been called into a case after his client has ‘told all’ and turned any evidence he has over to the Government, knows how helpless he is to protect his client against the facts thus disclosed.
“I suppose the view one takes will turn on what one thinks should be the right of an accused person against the State. Is it his right to have the judgment on the facts? Or is it his right to have a judgment based on only such evidence as he cannot conceal from the authorities, who cannot compel him to testify in court and also cannot question him before? Our system comes close to the latter by any interpretation, for the defendant is shielded by such safeguards as no system of law except the Anglo-American concedes to him.” Watts v. Indiana, 338 U. S. 49, 59 (1949) (Jackson, J., concurring in result).
To be sure, in many of these cases, the evidence showed that the suspect had requested, and was denied access to, a lawyer. Until today, however, the Court has never viewed “incommunicado” as applying only to the denial of the suspect‘s efforts to reach the attorney, and not to the attorney‘s efforts to reach the suspect. See, e. g., Darwin v. Connecticut, 391 U. S., at 349 (per curiam) (referring both to fact that “petitioner‘s lawyers made numerous attempts to communicate with petitioner or with the officer in charge” and to fact that “petitioner on three separate occasions sought and was denied permission to communicate with the outside world” in reaching the “inescapable” conclusion that “the officers kept petitioner incommunicado“). It is also true that many of these cases involved incommunicado interrogations for very long periods of time; not one of those cases suggested that incommunicado interrogation for shorter periods, maintained by misinforming attorney and client of each other‘s actions, was supported by a compelling societal interest that justified police deception and misinformation about attorney communications.
“In all but the last two of the following cases, the Court excluded the statement(s) obtained. Elfadl v. Maryland, 61 Md. App. 132, 485 A. 2d 275, cert. denied, 303 Md. 42, 491 A. 2d 1197, petition for cert. filed, 54 U. S. L. W. 3019 (U. S. June 21, 1985) (No. 85-24) (lawyer retained by defendant‘s wife refused permission to communicate with defendant or have him informed of counsel‘s presence); Lodowski v. Maryland, 302 Md. 691, 490 A. 2d 1228 (1985), petition for cert. filed, 54 U. S. L. W. 3019 (U. S. June 21, 1985) (No. 85-23) (police prevented communication between lawyer and defendant and did not tell defendant that lawyer was present); Dunn v. State, No. 248-84 (Tex. June 26, 1985), summarized, 37 Crim. L. Rep. (BNA) 2274 (July 17, 1985) (suspect not told that his wife had retained an attorney who was close at hand); Lewis v. State, 695 P. 2d 528 (Okla. 1984) (lawyer hired by defendant‘s parents misdirected by sheriff throughout jail and courthouse while defendant, unaware that parents had retained attorney, was being interrogated in another part of the building); Commonwealth v. Sherman, 389 Mass. 287, 450 N. E. 2d 566 (1983) (police failed to honor lawyer‘s request to be present during interrogation and failed to inform suspect of the request); Weber v. State, 457 A. 2d 674 (Del. 1983) (defendant‘s father and attorney hired by the father refused access to defendant; police failed to inform defendant of lawyer‘s presence); People v. Smith, 93 Ill. 2d 179, 442 N. E. 2d 1325 (1982) (associate of defendant‘s retained lawyer denied access to client based on fabricated claim that defendant was undergoing drug withdrawal and would not be interrogated in the near future; individual never told of lawyer‘s attempt to see him although he was given card lawyer left for him); State v. Matthews, 408 So. 2d 1274 (La. 1982) (attorney‘s request to speak with defendant refused and instruction to cease interrogation ignored); State v. Haynes, 288 Or. 59, 602 P. 2d 272 (1979), cert. denied, 446 U. S. 945 (1980) (lawyer retained by defendant‘s wife was told where defendant was being held but the police moved him before lawyer could offer counsel and defendant never told of lawyer‘s request to offer counsel); State v. Jones, 19 Wash. App. 850, 578 P. 2d 71 (1978) (defendant not informed that counsel had been retained for him or that attorney had instructed client not to speak); Commonwealth v. Hilliard, 471 Pa. 318, 370 A. 2d 322 (1977) (lawyer first misinformed that defendant was not in custody and later denied access to defendant until he confessed; defendant was not told of lawyer‘s presence until he confessed); State v. Jackson, 303 So. 2d 734 (La. 1974) (lawyer retained by defendant‘s family denied permission to see defendant who was not told of the lawyer‘s presence); Commonwealth v. McKenna, 355 Mass. 313, 244 N. E. 2d 560 (1969) (lawyer retained by suspect‘s mother asked to see client; police misinformed lawyer of suspect‘s whereabouts and did not indicate that he was already being interrogated); Blanks v. State, 254 Ga. 420, 330 S. E. 2d 575 (1985) (police finished taking confession before advising defendant that a lawyer was present who wished to see him); State v. Beck, 687 S. W. 2d 155 (Mo. 1985) (en banc) (lawyer obtained by defendant‘s mother at defendant‘s direction given before he was in custody; lawyer called the police and asked to be notified when defendant was arrested but at prosecutor‘s suggestion police did not so notify lawyer when defendant was arrested in Florida, nor did they advise defendant of lawyer‘s request).” Brief for American Bar Association as Amicus Curiae 4, n. 2.
Since the filing of the ABA brief, still another State Supreme Court has expressed this prevailing view that statements obtained through police interference in communications between an attorney and a suspect must be suppressed. See Haliburton v. Florida, 476 So. 2d 192 (Fla. 1985) (police continued questioning suspect without telling him that an attorney retained by his sister was at the police station seeking to speak with him).