*1 DAKOTA STATE WARDEN, SOUTH SOLEM, STUMES PENITENTIARY Fеbruary 28, 1983 Decided November Argued 81-2149. No. *2 White, J., opinion Court, delivered the of the in BURGER, J., which C. Blackmun, Rehnquist,
and O’Connor, JJ., joined. Powell, J., and judgment, post, p. opinion concurring filed an in the Stevens, J., 651. dissenting opinion, filed a in Marshall, JJ., which Brennan and joined, post, p. 655. Meierhenry, Attorney Mark V. General of South Dakota, argued petitioner. the cause and filed briefs for
Timothy McGreevy, by appointment
J.
Court,
argued
respondent.
S.
the cause and filed a brief for
opinion
delivered the
of the Court.
Justice White
question
The
in this case is
Arizona,
whether Edwards v.
applied retroactively.
I Respondent, suspect Norman Stumes, was a the death Joyce September 27, 1973, Hoff Sioux D. Falls, On Bay, pending perjury Wis., Stumes was arrested Green on felony charged charges. yet check with He had not been by phone followingmorning spoke Hoff’s death. The with he any attorney in his him not to make Falls, Sioux who told returning statements before Three Sioux to South Dakota. police Hendrick, Falls went officers, Skadsen, Green, and Bay bring They spoke him with first Green Stumes back. morning being Miranda read his of October 1. After rights, not ob- did them and Stumes said that he understood attorney present. ject speaking his with without homicide, about After an hour and a half of conversation willing detec- take a lie if he would Stumes asked Green question I’d rather “that is a answered tor test. Stumes point attorney].” [my At that I talk to answer until not questioning. stopped officers recommenced afternoon returned
The officers warnings. ad- giving Stumes Miranda questioning without night kill- apartment in Hoff’s had been mitted he having he denied they intercourse, but ing had had and that if the death asked When anything her death. to do had it had said that accidental, Stumes intentional had been “I rather would stated that He then accidental. been my attorney, any I talk to until time more at this it talk about regards to her give you statement a full I’ll and after that thereupon Questioning ceased. death.” *3 morning out, set three officers and the Stumes The next given trip Falls. Stumes was to Sioux 600-mile the car, on trip, beginning warnings was the and at the Miranda his shrugged willing and He to talk. he would whether asked ques- affirmatively, some further there was then and nodded tioning. trip, about the the conversation For most of subject though occasionally Hoff’s the matters, unrelated 15- up. a 10- afternoon, the after Late in came death respondent to he had what referred car, minute silence my state- “made and emotions” “a little with as conflict why anybody want would I understand ment that couldn’t taking Joyce so useless.” life is of a human kill and that “got chest.” if it off his better he he would feel told him Green strangling striking after Hoff then recounted Stumes and Stumes that she someone had she would tell she said give slept together. if would asked had Green Stumes noting they Falls, police Sioux when reached a statement attorney undoubtedly not to. him advise his would give stating: give “I agreed statement, don’t Stumes anything I’ll doing says. like, I feel damn what he I’m reached anybody officers and the I want Stumes talk to to.” being Shortly evening. after Falls about 6:45in Sioux placed a cell, Stumes called for Skadsen, him asking to “tell them I didn’t mean to kill her, that it was an accident— that I’m not a vicious killer.”
Stumes was
charged
murder;
the trial court refused
to suppress
of his
any
statements to the police; and the jury
found him
guilty
first-degree manslaughter and sentenced
him to life imprisonment.
On direct appeal,
the State
Supreme Court
remanded for a determination whether
Stumes’ statements had been voluntary.
The trial court
found thаt
they had; the conviction was
“auto-
accordingly
matically affirmed.”
Stumes then filed this petition for a writ of habeas corpus in the United States District Court for the District of South Dakota. The District Court denied the writ after an eviden- tiary hearing. It concluded that Stumes had knowingly, intelligently, and voluntarily waived his right to counsel. Miranda did not that all require must questioning cease for- ever once a suspect has counsel. requested 511 F. Supp. Given the totality of the circumstances, questioning during to South trip Dakota was proper.1
While Stumes’ appeal was
we
pending,
held that once a
has
suspect
invoked the
counsel, any
con-
subsequent
versation must be initiated by him. Edwards Arizona,
supra. Applying Edwards case,
this
the Court of Appeals
for the Eighth Circuit found that the
had acted uncon-
in twice
stitutionally
after
renewing interrogation
Stumes
*4
(1982).2
had invoked his right
to counsel.
Petitioner Ed- in this case violated conduct of whether the adequately deferred to the District Court wards, whether factfinding, Edwards should be and whether state court’s only retroactively. granted to the applied certiorari as We (1983). assume for We therefore 463 U. S. third. Ed- present purposes at issue here violated the conduct police also violated whether the not decide wards. We need (1966), question not 384 U. S. Arizona, Miranda Appeals. by Because we conclude the Court considered applying case, to this we erred that the court pre-Edwards reconsideration under remand for reverse and law.
II “retroactively.” apply judicial Robin- decisions rule, aAs (1973). legal Indeed, a 505, Neil, son v. U. S. presumption system precedent has built-in based on retroactivity. application is not Nonethеless, retroactive constitutionally compelled, or otherwise. Northern Great Refining Co., 287 U. S. R. Co. v. Sunburst Oil & S. 618 Walker, Since Linkletter (1961), applied Mapp v. Ohio, which held that U. S. yet only final when to defendants whose convictions were Mapp recognized “the interest of decided, we have may argue justice” exigencies and “the of the situation” retroactively. against imposing a new constitutional decision retroactivity principles S., at 628. The basic Walker, criminal cases were established Linkletter homicide, inter- particularly only questioned as it came after he had been mittently throughout trip incriminating statement was and the actual Finally, prompted by “get the officer’s it off his chest.” invitation to jail previous, unconstitu- statement at the was tainted Skadsen tionally obtained, judge on the incriminating statements. dissented One ground further communication and made a valid that Stumes had initiated Edwards should be applied waiver. The court did not consider whether retroactively.
643 supra, Tehan v. United States ex rel. Shott, 382 U. S. Jersey, Johnson v. New (1966), (1966). U. S. 719 Under these cases,
“[t]he criteria guiding resolution of the [retroactivity] (a) question implicate the purpose to be served by the new (b) standards, the extent of the reliance law en- by forcement authorities on the old (c) standards, and effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, (1967).3 U. 293, S. Edwards Examining light these three factors, we con- clude that it should not be applied retroactively.
A Complete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accu of criminal racy See Williams United States, trials. 646, (1971) and n. 6 (plurality opinion) (citing cases). The Edwards rule has only a tangential relation to 3 A majority of the Court has recently adopted slightly different approach in the Fourth Amendment area. United Johnson, States v. U. S. 537 Without considering the Linkletter/Stovall factors, Johnson held that a construing decision the Fourth Amendment that was not a “clear break past” with the applied to be to all yet convictions not final when the decision was handed down. The Court was careful to note the limits to holding: its “First, our today decision does not affect those cases thаt clearly would be controlled existing our retroactivity precedents. Second, because re- spondent’s case arises on review, direct we need not address the retro- active reach of our Fourth Amendment decisions those cases that still
may raise Fourth Amendment issues collateral Third, attack. we ex- press no view on the retroactive application construing any decisions provision constitutional other than the Fourth S., Amendment.” (footnotes at 562 omitted). and citation These limitations make Johnson inapplicable case, to this which is con- by prior trolled precedent, arises on review, collateral and does not involve the Fourth Amendment. *6 past, “the in the noted have As we truthfinding at trial. procedure of criminal rule constitutional question a whether fact-finding reliability the of the not enhance or does does degree.” Johnson necessarily of a matter process is at trial application of the The Jersey, supra, at 728-729. v. New perhaps as not is Edwards pursuant to exclusionary rule it is as accuracy result the final of entirely the unrelated to v. States Seе context. Fourth Amendment in the 394 States, (1975); v. United Desist 531 U. S. Peltier, to be said (1969). rule cannot the Edwards Yet U. S. faced interrogation. We qua and accurate of fair non a sine supra, we held where Denno, v. in Stovall situation a similar present had to be counsel newly that rule established that retroactively. applied There lineups to be during was excluding in the made although identifications by noted that we to “justified need assure counsel of absence justice, [it] system undoubt reliability of integrity of our and present.” will be unfairness no edly in which affect cases will The fact rule. Edwards is true The Id., at 299. same lawyer that not mean requested does suspect has that ques subsequent response to makes he statements important, in those likely Most tioning be inaccurate. to are significant interrogation raises renewed situations where reliability the statement of and as to the voluntariness doubt it is accuracy trial, at of the outcome therefore, and, on reliance suppression likely achieved without could be adopted prophylactic in Edwards.4 rule give effect frequently retroactive refused haveWe truthfinding heavily as at least that bore decisions Pearce, 395 U. S. Carolina North Miranda Like, example, for constitutional a substantive not confer did serving to enhance protective umbrella before; it “created not existed had 47, 54 S. Michigan Payne, guarantee.” See a constitutional remains, available was, (1973). “foundational” Because the nonretroactivity is less cases, pre-Edwards “a decision defendants convictions those whose incarceration in the likely to result continued S., at 54. acts.” on unconstitutional . . . rest
function. The most notable of
these Miranda itself, which
was held to apply only to trials taking place after
it was
supra.5
Johnson
Jersey,
v. New
decided.
See generally
supra,
Williams v. United States,
n. 7. The Ed-
wards rule is a far
from
cry
sort
decision that
goes
the heart of the truthfinding function, which we have consist-
g.,
E.
ently held to be
Brown v. Louisiana, retroactive.
U. S. 323 (1980); Hankerson v. North Carolina, 432 U. S.
233 (1977); Arsenault Massachusetts,
B In considеring the reliance factor, this Court’s cases have looked primarily whether law enforcement authorities and 5Much of what was said in Johnson Jersey applies v. New equally to this case: prime purpose “[T]he of [Escobedo and guarantee is to Miranda] full effec- tuation of privilege the against self-incrimination, the mainstay of our ad- versary system of justice. They criminal designed are in part to assure that the person responds who to interrogation while in custody does so intelligent with understanding of his to remain silent and of the conse- quences may [Wjhile which flow from relinquishing it. . . . Escobedo and Miranda guard against possibility of unreliable every statements in in- stance of in-custody interrogation, they encompass situations in which the danger necessarily is not great as as subjected when the accused is to overt and obvious coercion.
“At the time, same our case law on coerced confessions is available for persons whose trials have already completed, been providing of course that procedural prerequisites for direct or collateral attack are met. . . . mаy Prisoners invoke a Thus, substantive of test . . . voluntariness. while Escobedo provide and Miranda important safeguards against new the use of trial, unreliable statements at nonretroactivity of these deci- preclude sions will persons already whose completed trials have been from invoking the same safeguards part as of an involuntariness claim.” S.,U. at 729-730. Delaware, (1969). See also Jenkins v. 213, 395 U. S. prior law said of a rule justifiably relied have courts
state by whose the decision that announced from to be different bar to Unjustified is no “reliance” retroactivity issue. is at phrased in terms inquiry is often retroactivity. This by earlier cases foreshadowed new decision whether has past.”6 Court When the break a “clear or was practice disapproved it a precedent, past explicitly overruled longstanding a or overturned cases, has sanctioned authority, lower-court approved practice near-unanimous virtually “have in themselves factors and effect the reliance nonretroactivity.” States finding compelled a id., at also See Johnson, of a effect to limit inclined less have been 551-552. We “distinctly Brown foreshadowed.” has been decision predictabil- point just supra, At what 336. Louisiana, anticipate expected a future ity should be authorities local however. unclear, has been decision safeguard pre- bright-line rule to a established
Edwards requirement. Before rights, existing substantive not a new presence suspect of a had Edwards and after right. established lawyer, waive that and could *8 acceptable once be would that waiver for when new test suspect to right had suspect to counsel: his had invoked to Edwards subsequent Prior communication. initiate 6 precedent much-criticized overrules A decision that It can be both. States, Katz v. United clearly foreshadowed. may have been well not holding was retro that it (1967), a decision. such U. was S. 347 may have been holding in Katz clearly our stated: “However spective, we expressly it past” foreshadowed, with because it a clear break was 244, 248 States, 394 U. S. Desist decisions. overruled about Katz. nothing (1969). new Indeed, there the dissent insisted had left Olmstead. Prior cases killing for “Katz is responsible not merely virtually and lifeless of Olmstead physical-trespass requiremеnt S., at 276 394 U. Katz gave it.” awaiting the death that certificate even this situation that (Fortas, J., dissenting). Our indicate cases its law, existing whatever rely on case generally entitled to are authorities disrepute. “strongly Court had safeguards indicated that additional are
necessary when the accused asks for counsel,”
Edwards nonetheless did establish a new rule. We do not
think that the
they
can be faulted if
anticipate
did not
per
approach.
its
se
Cf. Adams v. Illinois,
wards
though
intelligent
it occurred
even
voluntary,
knowing,
and
accused
an
questioning after
police recommenced
the
when
had several
The Court
right to counsel.
the
had invoked
governing
of
waiver
the
per
adopt
rules
se
to
refused
times
(1975);
Mosley,
649
U. S. 1013 (1981); United
Rodriguez-Gastelum,
States v.
569
F. 2d
(CA9) (en
482, 488
banc), cert. denied,
In short, it cannot be said that our decision Edwards had been “clearly” or “distinctly” foreshadowed. Adams See v. supra, Illinois, at 283. Cf. Brown Louisiana, 447 U. S., at 336. In these circumstаnces, we consider the reliance
8As Justice
Stevens
points out,
a dozen state courts had excluded evi
dence obtained under similar
post,
663,
circumstances.
See
n. 9. The
rulings of the state courts were not as
implies,
one-sided as he
however.
Among cases upholding reinterrogation of a suspect who had asserted his
to counsel
State,
are Ladd v.
(Alaska
568
960, 966,
P. 2d
n. 8
1977),
denied,
cert.
928 (1978);
Greenawalt,
State v.
150,
128 Ariz.
158-160,
P.
828, 836-838,
624
2d
denied,
cert.
(1981);
Brown
C have a dis- application would of Edwards retroactive The *11 only justice. can of We ruptive administration the effect on might make Edwards where guess of cases the number admissibility to the made of statements in the a difference significant. surely those, In of all police, is number but the substantiality required the to assess inquiry be some would possible investigation, and any That claim. Edwards of by problems hampered evidencе, of lost be would retrial, missing Del- v. memory, See Jenkins faulty witnesses. (1969). aware, 395 U. S.
D truthfinding to do with has little Edwards sum, In designed rights it is trial, of criminal function may convictions protect those whose be still claimed expect preceded would be unreasonable It the decision. in themselves to have conducted authorities enforcement law bright-line prior to its announce- rule its accordance with disrupt application adminis- would and retroactive ment; con- Weighing we justice. considerations, these tration of retroactively. applied not be that Edwards should clude HHHHHH nonretroactivity decision that a minimum, means
At applied final of convictions. to be collateral review about purposes need decide is all we this that case, For of nonretroactivity have drawn Edwards.9 Our cases curiam), (1982) habeas (per a federal Wyrick Fields, S. po that the Appeals action, of the Court the determination we reversed whether did not consider Edwards. We case lice conduct violated if to, even circumstances, have because nor we Edwards applied such did be cannot That decision on the mеrits. it the lower had erred did court retroactively to cases applied holding as a should read variety places.
line
applied
Some decisions have been
only to
yet
defendants whose convictions were not
final when
the new rule
established,
United States v. Johnson, 457
(1982);
U. S. 537
(1965),
Walker,
Linkletter v.
IV Appeals The by Court of evaluating erred the constitution- ality police conduct in this case under the standards set out in express opinion Edwards. We no as to whether the conduct of the acceptable in this case was under cases from Eighth this Court or the Circuit, and remand Appeals the Court of for that dеtermination.
Reversed and remanded. concurring judgment. in the Justice Powell, In Edwards v. (1981), 451 Arizona, U. S. 477 this Court determined that the right accused’s waiver of his to counsel collateral review. For Bradshaw, reasons, the Oregon v. course, same of (1983), U. S. should not that Edwards holding be read as applies on direct review to interrogations occurring before it The was decided. questioning involved there occurred nine months before Edwards de- was cided. On direct appeal, Oregon that, the Appeals light Court in of held Edwards, of the statements suppressed. have should been We reversed because the state court had misread Edwards. The of Ed- retroactivity wards was not considered. involuntary he interrogation because was during custodial pres- interrogation counsel without subjected to renewed right. It was uncertain at having that invoked ent after apply merely Johnson intended Court time whether that waivers that had held 458, 464 S. 304 U. Zerbst, they only relin- intentional if are “an effective counsel are of privilege,” known of a quishment or abandonment particular by facts and to “the reference made determination including surrounding [each] the baсk- case, circumstances See the accused.” ground, experience, and conduct in- Alternatively, have been could Edwards S., at 482. U. establishing per that, rule once se terpreted a new as right, of that invoked, a waiver has to counsel been be voluntary standard, can never Zerbst under however police questioning. See response to further in if valid made concurring re- in J., supra, at 488-490 Edwards, (Powell, sult). interpretation proper Edwards to the as Confusion Oregon g., v. Brad- subsequent See, e. persisted cases. (1983); n. 1 id., shaw, concurring (Powell, J., cases). (citing The judgment) court lower relying part clearly, Bradshaw, now states Court per extent to that rule and new se established a supra.1 Ante, at 647-648. Zerbst, overruled Johnson my acknowledgment to resolve view, suffices, This urged previously present have posed I case. issue suggestion a new adopt Justice Harlan’s Court to only applied to review law should rule constitutional *13 concern Edwards, expressed judgment, I although concurring in the In S., at 451 U. Zerbst. See intent to there was an overrule to whether as concurring only in Bradshaw, Term, opinion also in an last 491-492. no requires that the Constitution my I сonviction judgment, reiterated waiver a valid and when purely factual as whether se rule issue as per on an contrasting opinions As the S., 1049-1051. at counsel occurs. of illustrate, Rehnquist even in Bradshaw Justices Marshall and of id., 1048 clarify. See per se likely to confuse than is more new rule course, now, of Nevertheless, I (Powell, J., concurring judgment). in authority. binding accept Edwards and Bradshaw as
653
yet
of criminal convictions not
final when the rule
an-
is
nounced.2 Hankerson v. North Carolina,
Retroactive on habeas of constitutional governing procedure rules unnecessary criminal is to advance purposes corpus, regime of habeas per- even under a mits the federal courts on habeas to vacate a final conviction any properly preserved ground on of federal constitutional error. Review habeas to determine that the conviction upon application rests correct of the law in effect at the time required “forc[e] conviction is all that is trial appellate courts ... toe constitutional mark.”3 Id., at 687. require Nor will complete fundamental fairness retroactivity, except in rare instances.4 Because retroactive 2 The adopted Court this Johnson, United States v. view 457 U. S. (1982), to the holding extent of that new rules of Fourth Amendment law would be applied to all yet convictions not final when the rule was announced. 3Although might it seem perpetually desirable past revise convictions light evolving legal doctrine, attempt fundamentally to do so is at odds with the rule of law. point, “At some process, criminal if it is all, to function at must turn its ought attention from whether a man properly to be incarcerated to how he is to If be treated once convicted. law, criminal or otherwise, having enforcing, worth it must at some provide time a definitive questions litigants answer to the present else or provides it never an answer Mackey States, S., at all.” v. U. (opinion at 690-691 Harlan, J.). Bustamonte, See also Schneckloth (1973) U. S. (POWELL,J., concurring). 4We should give retroactive announcing effect on habeas to decisions procedure rules criminal g., e. required fairness, to ensure fundamental Gideon Wainwright, holding entirely conduct *14 generally does application law rules of constitutional of new purposes it habeas, relief on of collateral little to advance justify imposing upon particularly cases to such difficult These are not insub- review. costs of collateral State prosecu- judicial They include “the burden stantial. miscarriage of and “the entailed retrial” resources torial only guilty justice is set free be- offender when a that occurs years impossible the offense.” after retrial is cause effective supra, at 247. Retroactive Carolina, North Hankerson v. application en- rules frustrates State’s of constitutional despite ad- the State’s careful of its criminal law forcement governed standards that constitutional herence to the federal prisoner’s conviction. time of the at the applica- upon imposed retroactive the State The costs corpus thus law on habeas rules of constitutional tion of new application. outweigh generally It is of this far the benefits unnecessary fac- consider the Linkletter/Stovall therefore merely guide bal- the Court’s tors, as these were intended ancing that accrue from retroactive of the costs and benefits application particular of a rule.
Certainly per adopted in is not a rule se test necessary As the Court’s to assure fundamental fairness. opinion “in interro- states, those situations where renewed gation significant voluntariness raises doubt as to the accuracy reliability and, therefore, of the statement likely suppression could be trial, the outcome at it is adopted prophylactic achieved without rule reliance on Ante, in Edwards” at 644. judgment.
For these I concur in the reasons, Wade, g., e. Roe 410 U. S. punishment, immune from criminal by funda- Releasing prisoners convicted on habeas who have been constitutionally mentally proсedures, no unfair or who have committed rare all, those punishable give offense at would effect to our decisions time governing at the fully the law eases where conviction accord with States, Mackey unjust. plainly of conviction is nonetheless See supra, at 692-693.
Justice Stevens, Justice whom Brennan Justice Marshall join, dissenting.
Respondent acknowledged Stumes is an lawbreaker. His together guilt, confession, with other evidence of his brands him as past such. Whether his incarceration for the dozen years adequate punishment more is or insufficient for his crime is a matter of no concern to this Court. What is—or should be—of concern is the conduct of other lawbreakers. respondent custody,
While inwas and after he had re- quested police the assistance of interrogated counsel, the him separate on two occasions. As the Court held in Edwards v. (1981), interrogation Arizona, U. S. 477 such is unlawful. dispute There is no respondent’s this Court that constitu- rights tional were violated.1 Nevertheless, because the un- interrogation place prior lawful May took 18, 1981, the date Edwards was respondent’s decided, the Court that holds statеments are though they admissible evidence even would have they been inadmissible if had been made after May reaching 18, 1981. In this result, the Court states that question is applied whether Edwards be “should retro- actively,” ante, at 639, question and then answers the in the negative because Edwards established a “new rule.” Ante, at 647.
The “new rule” that should concern the Court one today, it announces applied rather than the rule that was Edwards. For it long was well settled before Edwards police decided may that interrogate prisoner not after he has asked for the lawyer. assistance of a The case therefore present any does “retroactivity” question. real It does, question however, raise concerning serious this Court’s use power of its to create new rules of law. 1 This Court grant limited its of certiorari question this case to of whether applied be “should Ante, retroactively” to this case.
at 642. Therefore, the holding of the Appeals Court of that the con duct in this ease violated respondent’s rights under the Fifth Amendment is not at here, issue and must be given. taken as a I—I scrupulous observ- “secure decided Court 1966 the rarеly quoted but principle, often traditional ance pris- suffer will not degree, law ‘the that full heeded convic- his own instrument deluded made the to be oner Jersey, 719, 730 Newv. Johnson tion.’” U. S. Arizona, 384 Specifically, in Miranda prior to warned must individual an decided the Court silent, to remain interrogation he has custodial during questioning, and attorney present have an represent free him attorney appointed to right to have an *16 The id., at 467-473. one. See charge afford if cannot he pres- requests the an individual once noted that also Court request [a] during questioning, “such attorney of an ence during question- have one” his to affirmatively secures indi- supplied). however, he “If, (emphasis ing, id., at process he any stage that the any at and manner cates speaking there can attorney before an to with wishes consult (emphasis supplied). at 444-445 questioning." Id., be no elaborated: The Court pro- subsequent given, warnings the been have
“Once any man- indicates If individual the is clear. cedure questioning, that he during any prior to time at ner, interrogation cease. must the silent, to remain wishes his to exercise point he intends that he has shown At this any aftеr taken privilege; statement Fifth Amendment than the privilege other be cannot person his invokes the Without compulsion, or otherwise. product subtle in-custody setting of questioning, off cut free to overcome interrogation operates individual privilege has producing after the statement a choice he that states individual once invoked. been If until interrogation cease attorney, must wants an time, the individual attorney present. that At is an attorney opportunity to must have an confer ques- subsequent during any present to have him and attorney obtain an Honing. cannot the individual If speaking to one that he wants he indicates before silent. they respect to remain his decision police, must suggested, that have some mean, as not “This does lawyer’ house police have a ‘station must station each prisoners. mean, It does present to advise all times interrogate person propose police if that however, is entitled to a him that he they known to make must lawyer will be lawyer one, if he cannot afford that any interrogation. If authori- provided for him during provide they counsel not will that conclude ties investigation in the period in which of time a reasonable doing may they from so with- refrain out, carried field is privilege violating person’s Amendment Fifth out during question they time.” long him do so as omitted). (footnote supplied) (emphasis Id., at mandatory. police language “must The clear and is This permitted request to con- respect” he individual’s an interrogation; attorney prior interro- to custodial an sult with attorney present.” gation Indeed, an “must cease until language if the individual even to ask forbids the this ques- rights, no can be his since “there wishes to waive request tioning.” respondent consult with Here made *17 police questioned him questioning, but the counsel anyway, opportunity. affording is There him without that police gave simply nothing opinion the the Miranda permissible.2 slightest reason to believe such conduct consistently read Even before this Court had Edwards, police impose obligation on the Miranda to an absolute Michigan respect request an individual’s for counsel. significant any claim that opinion One of the Court is omission from the they in Miranda that could have led language there is to believe could oрportunity to interrogate requested an an individual after he had understandable; no such confer with counsel. there is The omission is language. (1975), police may-
Mosley, 423 the Court held that U. S. right question an individual after he invokes his to remain only right questioning scrupulously if silent his to cut off is expressly distinguished However, honored. Court to consult with counsel from the asser- invocation of id., silent, remain see at n. 101, 7, tion of the explained came from Miranda that this distinction itself: dissenting opinion
“The asserts that Miranda estab- requirement person lished a that once a has indicated questioning may silent, to remain desire be resumed only present. clearly when counsel is But the Court imposed requirement, Miranda no such for it distin- guished procedural safeguards triggered by between the request request attorney to remain silent and a for an interrogation and directed that ‘the must cease until an attorney present’ only ‘[i]f the individual states that he (citations attorney.’” wants an atS., 104, n. 10 omitted).3
Similarly, in Fare v. Michael C., U. S. 707 “per Court observed that Miranda created a se” rule that upon request interrogation for counsel, must cease until provided. counsel is See 442 S.,U. аt 717-719.4 opinion In his concurring result, in the Justice added: White question “The proper procedure following expression an indi- vidual of his desire to consult presented counsel is not in this case. It is sufficient to note that the keep reasons to the lines of communication be- tween the open authorities and the accused when the chosen to accused has make his own present decisions are not he when indicates instead that he legal wishes advice respect point, thereto. More to the the accused having expressed his own view that competent he is not to deal with the authorities legal advice, without a later insist- decision at the authorities’ ence to make a may statement presence properly without counsel’s skepticism.” viewed with S., n. 2. 4The Court elaborated: per “The aspect se unique Miranda was thus role the based lawyer plays in adversary system justice of criminal this coun-
The itself opinion demonstrates error conclusion the Court reaches today. After acknowledging per se aspect Miranda,5 Court explained how its from Miranda: was holding derived directly “Miranda itself indicated that the assertion of the to counsel right event significant and that once exercised by accused, ‘the interrogation must cease until an is attorney present.’ S.,U. at 474. Our Michigan later cases have not abandoned that In view. Mosley, 423 U. 96 (1975), the Court noted that Miranda had distinguished between the procedural safe- guards triggered by to remain request silent and a for an request attorney had required that interroga- tion cease until an attorney was if present only the indi- vidual stated that he wanted counsel. 423 S.,U. at 104, id., n. 10; see also at J., concurring). (White, supra, C., Fare Michael at Court referred try. Whether it is a minor accused, or an adult who lawyer stands is person the one society to whom protector as a whole looks as the legal rights person dealings of that in his with the and the courts. reason, For this the Court rigid fashioned Miranda the rule that an request attorney per accused’s for an is se an invocation of his Fifth Amend- rights, requiring ment interrogation S., that all cease.” 442 U. at 719. Arizona, “In Miranda v. the Court determined that the Fifth and Four prohibition teenth Amendments’ against compelled self-incrimination re quired that interrogation preceded by custodial putative advice to the defendant right presence that he has the attorney. S., to the of an at 479. The Court also procedures subsequent indicated the to be followed warnings. to the If the silent, accused indicates he that wishes to remain interrogation counsel, ‘the must If requests interrogation cease.’ he ‘the attorney present.’ Id., must cease until an at 474.
“Miranda thus declared that an accused has a Fifth and Fourteenth right Amendment to have present during interrogation. counsel custodial Here, Supreme the critical facts as found the Arizona Court are that Edwards asserted his to counsel and his to remain silent on January 19, police, furnishing counsel, but that the without him returned morning meeting the next to confront him and as a result of the secured incriminating S., oral admissions.” 451 481-482. *19 an for request accused’s that an rule ‘rigid
to Miranda’s Amendment his Fifth of se an invocation is attorney per And just cease.’ interrogation that all requiring rights, in- had custody in suspect where in a case Term, last re- again counsel, Court to his Miranda voked to Miranda remain under right’ ‘undisputed to ferred con- he ‘until had interrogation free of and to silent 446 U. S. Innis, Rhode Island lawyer.’ аwith sulted and, lend views these (1980). We 291, reconfirm it is inconsistent substance, emphasize them their authorities, at its progeny and Miranda for has he custody accused an instance, reinterrogate if S.,U. at to counsel.” his right asserted clearly supplied).6 (emphasis clear that it perfectly makes itself Edwards
Because our part had been in that case reconfirmed was rule that no merit I find decided Miranda was since ever law depart- police some The fact that reasoning. in the Court’s language plain to heed the failed have may ments reaching for not a justification is certainly opinion Miranda police. to the innovation, one favorable any it is If Edwards contains interro indicating no mandatory, Miranda language of While the lawyer, awith conferred individual has until the place take gation can to a conversa not extend language this does Edwards makes it clear that latter: by the initiated the individual and tion between authorities by the interrogation initiated concluding that the fruits “In imply Edwards, hold or we do against be used January 20 could not au- that the his election powerless to countermand that Edwards mаde incriminating statements any event use no thorities could initiated Edwards Had counsel. having to his access Amend- Fifth or Fourteenth 20, nothing in the January meeting on voluntary, listening to his merely police from prohibit the ments would The trial. him the using against them statements volunteered have counsel right to is the in Miranda Fifth identified Amendment interrogation, there such interrogation. any Absent present at custodial invoked right that Edwards infringement of the no would have been valid had been there whether to determine there would be no occasion at 485-486. S., waiver.”
the conclusion that the reconfirmation of what was said Miranda should be as a new constitutional regarded rule.
HHHH
The “retroactivity”
analysis
today’s majority merits sep-
arate scrutiny. The
makes no
majority
attempt
define a
“new rule” that
rise to a
gives
retroactivity
but
question,
*20
merely assumes that Edwards created one. Ante, at 642-
Edwards
643.
Its
for
reasoning
as
treating
created
having
a “new rule” is
implicit, however,
its discussion of what
it calls the “reliance factor” —the authorities’
reliance on
rule.” The
“prior
Court states that the police could not
anticipate Edwards, since
be faulted for
failing
law
prior
could have been understood to
a
permit
evalu-
case-by-case
ation of whether a
decision to
suspect’s
speak
an earlier
despite
invocation of the
to consult
with coun-
sel was a knowing,
voluntary,
intelligent waiver of that
Edwards can be con-
The
right.7
concludes that
majority
7
question
majority’s
There is reason to
reading
“prior”
law. The
only
supporting
Court cites
three of our
case-by-case approach.
cases as
a
first, Michigan
Mosley,
The
(1975),
v.
points
U. S. 96
in fact
in the
opposite direction,
supra,
I,
as the
discussion in Part
demonstrates. The
Zerbst,
(1938).
Johnson v.
second is
Zerbst was
course,
This approach
concedes
majority
The
unprecedented.
is completely
poses
ante, Edwards with the past,
“clear break”
not a
that
has
been
normally
the law
change
sort of
646-647,
yet
For
is even raised.
retroactivity question
before
required
States,
United
244 (1969),
Desist
394 U. S.
example,
in Katz [v.
our
clearly
holding
“However
wrote:
the Court
States, have been fore-
(1967),] may
United
S. 347
are thus
and we
past,
break with
it
a cleаr
shadowed, was
be limited
its
should
application
whether
to decide
compelled
Id.,
ulti-
fact that the position
at 248.8 The
to the future.”
accepted
previously
been
this Court had
mately rejected
sufficient
has never been
all lower courts
in some but not
rule has been created.
a new
to demonstrate
*21
in indi-
pause
inquire
simple, we will not
availability
privilege
of the
so
rights
a warn-
of his
without
the defendant was
vidual cases whether
aware
possessed,
knowledge the
being
of the
defendant
ing
given. Assessments
prior contact
education, intelligence, or
age,
on information as to his
based
warning is a clear-
speculation; a
authorities,
never more than
can
interro-
background
person
important,
More
whatever the
cut fact.
over-
indispensable to
interrogation is
warning
the time of the
gated, a
at
he is free
individual knows
pressures
come its
and to insure
(foot-
S., at 468-469
point in
384 U.
privilege
exercise the
at that
time.”
omitted).
note
8
(1980)
opin
Louisiana,
(plurality
323,
See Brown v.
447
335-336
U. S.
Illinois, 405
(1973); Adams v.
Michigan
Payne,
ion);
47,
v.
55
(1971);
Huson, 404 U. S.
97, 106
Chevron Oil Co. v.
278,
(1972);
U. S.
283
Johnson,
(1966).
fact,
Jersey,
719,
Johnson v. New
384 U. S.
731
that Miranda
should
relies, ante,
649,
noted
the Court
which
Court
that this
practices
police
applied retroactively
it involved
not be
because
Denno,
In Stovall
v.
past.
in the
explicitly
to condemn
Court had
declined
application when
rejected
663
States v. Estate
Donnelly,
397
U. S. 286, 295 (1970).
Until
today it had been clear that no retroactivity
arises
when
decision is based on principles previously announced
by this Court, even though there is no precedent squarely on
point. Henderson v. Morgan,
The curious character
Court’s new conception of a
“new rule” is well
illustrated by Hanover Shoe, Inc. v.
United Shoe Machinery Corp., 392
(1968).
S.U.
481
There
the question was whether this Court’s endorsement of a rule
of antitrust
law which had
been
previously
followed only by
9See, e. g., Thompson v. Wainwright,
(CA5
“Like the make it cases These existing upon authorities. clusions interpretation of the accepted nowas there that clear monopoliza- finding of a conditioned which Act Sherman showing upon of §2 Act Sherman tion under monopolist. case neither practices predatory in doc- shift abrupt fundamental an such there was entirely in effect rule which new an constitute as to trine replaced development in anti- Whatever one. older an great extent to a brought was based about was trust law of doctrines an extension existing and was authorities years. developing over the growing and had been which sharp line of in the break not constitute did These cases change caused authority which avulsive or an earlier banks. new between to flow law thereafter theof current potential anti- cases say those that We cannot thinking justified in been have would trust defendants permitted them doctrines antitrust current that then or maintenance creation to the conducive acts do all they exclusion long direct avoided monopoly, as so Id., at predatory acts.” competitors other omitted).10 (footnotes did not clearly Edwards analysis indicates
The same
description of
majority's own
under
rule
a new
create
shift
a fundamental
did not constitute
that case.
recognize,
at most
it
appears As the
law.
Court
ap-
majority’s
existing
The
doctrine.
extension
a modest
Shoe.
Hanover
proach
is inconsistent
it could
when
rule”
no “new
there could be
10 The
added that
Court
Act
of the Sherman
interpretation
“well-defined
was a
there
be said
system could
leasing
or that United’s
...
abruptly overruled
which was
of mo
maintenance
exercise
for the
an instrument
considered
not be
S., at 502.
nopoly power.”
*23
ago
years
Less than two
the Court considered whether our
holding Payton
v. New York,
“Payton entirely also did not announce an new and unan- ticipated principle general, of law. the Court has not subsequently ‘sharp read a decision to work a break in ruling web of the law,’ unless that caused ‘such an abrupt and fundamental shift doctrine as to constitute entirely an replaced new rule which in effect an older recognized one.’ only Such break has been when a de- explicitly past precedent cision overrules of this Court, disapproves practice arguably this Court has sanc- prior tioned longstanding cases, or overturns a widespread practice spoken, to which this Court has not body but which a near-unanimous of lower court author- ity expressly approved.” has United States v. Johnson, (citations (1982) omitted). noting After argued that the ruling Government had that a should not be if retroactive the law been had “unsettled” ruling, id., to the at 559, the Court wrote:
“[T]he [position] Government’s would reduce its own ‘retroactivity absurdity. test’ to an Under this view, only rulings Fourth worthy Amendment of retroac- application tive are arresting those which the officers pre-existing guidelines violated clearly established prior cases. involving But as we have seen above, cases simple application pre-existing of clear, Fourth Amend- guidelines ment problems retroactivity raise real no Literally all. theory read, the Government’s would automatically rulings eliminate all Fourth Amendment from application.” consideration for retroactive Id., at 560. nonretroaetivity has never in all cases a rule course,
Of im- would a rule good Such reason. *24 with law, the and been question can scrutiny a whenever from conduct munize never would authorities the debatable; thus to be be said implica- plainest comply even the to incentive an have wisely that Johnson reason for this It is our cases. of tions purport majority to the does Nor rule.11 rejected such a import plain itsof today. the Yet rule such endorse clearly already has been nothing law that holding, but since suggests, majority applied as the if, ever will established merely application be- qualify for “retroactive” cases cannot question, this when even they “unsettled” an involve cause (quoting “strongly at 647 already ante, indicated,” Court has 484), the to answer the correct what atS., Edwards, 451 U. question is. “unsettled” majority’s “retroac- test for points out,
As Johnson “settled” law were reality If the at all. tivity” no test is in retroactivity question would no real Edwards, then to development orderly the law Respect for the arise.12 precedent a recent require adherence faithful more should today, especially inasmuch than is evidenced as Johnson such Fourth resolving unsettled rulings argues, all “If, the Government as cases, law then, in close nonretroactivе, should be questions Amendment con side of on the to err incentive little would have officials enforcement constitutionality of of the dubious awareness Official behavior. stitutional long as that, certainty so by official be counterbalanced practice would ob unsettled, evidence remained law the area Fourth Amendment one only excluded would be practice through questionable tained any to accord Failure resolving question. definitively unsettled case ‘encourage police rulings would effect to Fourth Amendment retroactive adopt decisions, purport of disregard plain our other courts (emphasis S., let's-wait-until-it’s-decided-approach."' U. States, omitted) (footnote Desist original) (quoting (1969) (Fortas, J., dissenting)). case, pre for retroactivity not a in fact is course, my view this Of I, supra. cisely reason. See Part this Johnson’s, expressed purpose
as
pre-
was to lend order and
dictability
retroactivity.
law of
See
HHHH understandably The Court is concerned about the conduct private lawbreakers. That concern not, should however, overriding divert importance its attention requir- from the ing strict obedience to the law those officials who are entrusted with its and, indeed, with its inter- enforcement— pretation. For decisions of this kind have a corrosive effect society in a dedicated to the rule of law. There is, after all, profound wisdom in Justice Brandéis’ observation:
“Decency, security liberty gov- alike demand that *25 subjected ernment officials shall be to the same rules of conduct gov- that are commands to the citizen. In a government ernment of laws, existence of the will be imperilled if it fails to scrupulously. observe the law potent, Our omnipresent Government is the teacher. good For people by for it ill, teaches the whole its example. contagious. Crime is If the Government be- comes a contempt lawbreaker, it breeds for it law; in- every vites man to become a law unto himself; it invites anarchy. To declare that in the administration of the justifies criminal law the end the means—to declare that may the Government commit crimes in order to secure private bring convictionof criminal—would terrible Against pernicious retribution. doctrine this Court resolutely should set its face.” Olmstead (1928) (dissenting States, 277 opinion). U. S. 438, respectfully I dissent.