State v. Hartley

JERSEY, PLAINTIFF-RESPONDENT, STATE OF NEW HARTLEY, TERRENCE B. DEFENDANT-APPELLANT. Argued February Decided July 1 985 1986. Norris, Designated Counsel, argued cause, William E. appellant {Joseph Defender, for Rodriguez, attorney). H. Public General, Hindman, argued Deputy Attorney Jay H. Kimmelman, cause, Attorney General respondent I. {Irwin Deputy Attor- Jersey, attorney, Santangelo, J. of New Thomas General, brief). on the ney of counsel and opinion of the was delivered Court CLIFFORD, J.

Defendant, Hartley, Terrence was convicted on one count 2C:15-1, felony first-degree robbery, and two counts of N.J.S.A. murder, 2C:ll-3(a)(3). sentencing purposes For N.J.S.A. merged. On the two murders the court robbery conviction was imprisonment parole-ineligibility a imposed a term of life with thirty-year period twenty years, and a consecutive term with period years. of fifteen The convictions parole-ineligibility Jewelry in Atlantic robbery on a of the Holst Store were based in the store’s owner and the City that resulted the death of aunt. owner’s appeal questions admissibility, on the State’s case

This in-chief, given inculpatory statements dur- of defendant’s two en- interrogations by separate branches of law ing custodial forcement, investigation. pursuing “joint” Defend- who were warnings, response previously given ant had been unequivocal terms his to which he had asserted clear he made the state- right to remain silent.1 Some time later interrogation by question, response ments in the first authorities, give who did not defendant the Miranda federal anew, Jersey authorities after warnings and the second to New rights. of his Miranda defendant had been reinformed “scrupulous- authorities specific issues are whether the federal intimately police familiar with 1We are confident that now the are by way warnings. any requires "Prior to Miranda and what that case silent, right questioning that he has a to remain must be warned [accused] him, against any may evidence statement he does make be used as attorney, appointed.” right presence either retained or that he has a to the of an 1602, 1612, Arizona, 436, 444, S.Ct. 16 L.Ed.2d Miranda v. 384 U.S. (1966). ly previously-invoked right silence, honored” defendant’s as required by Michigan Mosley, (1975); and, not, L.Ed.2d 313 if whether the statement to New Jersey authorities is relationship tainted because of its to the “federal” statement.

We hold that an previously-asserted right before accused’s may remain silent “scrupulously be deemed to have been hon- ored,” must, minimum, law-enforcement authorities at a read- warnings. minister the Miranda In the absence of those warnings any inculpatory given renewed response statement police-initiated interrogation right custodial after the to si- addition, lence has been invoked is inadmissible. In we deter- mine that a failure scrupulously to honor an accused’s earlier-invoked to silence amounts to a violation not sim- ply of prophylactic Miranda’s privi- rules but of the accused’s lege against Therefore, self-incrimination. any statement that suspect may make after his to silence has not been scrupulously honored is unconstitutionally compelled as a mat- ter of law. That requires circumstance in turn a close examina- tion of relationship between that first statement and subsequent statement.

We conclude that in this case the federal authorities’ failure scrupulously to honor defendant’s announced intention not to requires exclusion, make a statement case, on the State’s only of defendant’s agents confession to of the Federal (FBI) of Investigation Bureau but also of defendant’s second statement, municipal made to state and authorities. This result compelled (1) either because the second statement was ob- tained through process part that was in fact of the same illicit procedure produced statement, (2) the first or because it product was the of an interrogation unconstitutional —and despite readministering warnings of to defendant before the second Finally, statement. we base the above deter- only minations not on understanding our of the United States precedents Court independent this area but on state grounds of decision as well.

I surrounding The facts the commission of the crimes are uncomplicated. Hartley companions, and two Hooks and James “Snow,” young only woman known as traveled from New City purpose robbing York to Atlantic for the the casino at heavy security the Resorts International Hotel. The at the venture, discourage hotel served to so defendant and his target. co-felons searched for a more nearby vulnerable The Jewelry appeared promise pickings. Holst Store easier “lookout,” While defendant remained outside as a Hooks and store, jewelry in Snow robbed the the course of which the culprits owner and his aunt shot and were killed. The three hotel, City then returned to the took a taxi to the Atlantic Bus Depot, City. and boarded a return for York bus New Hooks,

At funeral services for James who himself was killed just days robbery-murders City, ten after the in Atlantic an suspect informant identified defendant as a the Holst Jewel- ry tip Store crimes. On the basis of the informant’s and a corroborating police investigation, magistrate sitting a federal in the Eastern District of York New issued an arrest warrant Hartley and a search warrant for his residence. The charge federal authorities’ arose of a involvement because transportation property jewelry interstate of the taken from the store. Hartley’s apartment warrants were executed at Brook- 5, 1981,

lyn February by special 7:30 a.m. on about five FBI, agents City assisted members of the Atlantic Department, office, County Police the Atlantic Prosecutor’s City Department. the New York Police At the time of the agent Robley Hartley arrest FBI Richard read the Miranda rights being and informed him that he was arrested for “the transportation property interstate of stolen connection with robbery Jewelry City, an armed of the Holst in Atlantic Store Jersey, New which the and his aunt were murdered.” owner [in] apartment jewelry A search of defendant’s uncovered

that was later identified as merchandise stolen from the Holst Jewelry Store. Hartley

After his Brooklyn-Queens arrest was taken to the office of the FBI. At placed Hartley 9:13 a.m. the authorities in an processing. Interview Room for At 9:16 a.m. he was rights readvised of his constitutional and was handed a federal form, Rights” “Advice of which contained the full panoply of warnings. Immediately following Miranda the statement of warnings, those following, the form contained the under the heading Rights”: “Waiver of rights rights I have read this statement of and I understand what my are. my willing I am to make a statement and answer I do not want a questions. doing. at this time. I understand and know what I am

lawyer No or promises threats have been made to me and no or coercion of kind has been pressure against used me. This in turn was followed a line for signature. defendant’s Thus, only place provided sign for one to the form came after the “waiver” section. differently, only purpose Put signature acknowledge receipt rights was not to of one’s but rather rights. to indicate a waiver of those

According FBI agent Frieberg, Merle “briefly defendant glanced form, said, at” the Frieberg after which just “Do understand what is on the form? Do you understand what you was

read to you?” He “Yes.” He I said, hesitated and “What seems to said, be the problem?” He “I don’t believe I want said, to make a statement at this time.” And to Agent which Davis “Fine. If Special said, don’t want to make a you statement strike that time, item and initial particular it.” Which he did. questions time, authorities asked no proceeded at that but defendant, to fingerprint photograph commencing at 9:26 a.m. agent

At 10:43 Frieberg again approached a.m. Hartley, who Room, had been returned to the Interview and stated: Agent Frieberg I am I Terrence, am from Atlantic Special New City, and I think know I am Jersey here. And I would you why up like you going reconsider and now is the time if are to make a statement. you Now is the time to it. do replied, you Defendant “What do Frieberg want know?” thereupon, readministering without warnings, pro- personal ceeded to ask background defendant questions, fol- by questions probing lowed the details of jewelry-store robbery. responded by giving Defendant what amounted to a full agent confession. The typed had his notes into a state- ment, which Hartley sign. refused to agents, Hartley being questioned by

After the FBI group Jersey York and questioned by a of four New New Investigator Margaret officials. Barnett of Atlan- Criminal rights. County read him his The State tic Prosecutor’s Office signed at that time that the asserts that defendant a waiver but interroga- misplaced in the Prosecutor’s office. The form was Mason of the primarily by tion was conducted Detective Dennis City Department. present Also were two New Atlantic Police group City police York officers. All four were members morning apartment that and that had arrived at the defendant’s Hartley refused to had assisted in the search conducted there. tape, recorded on and likewise refused allow his statement be interview, sign typed description of this as was the case the federal statement. with

The trial court refused to admit into evidence either of the unsigned typewritten statements, but it allowed both feder- al and state testimony authorities’ as to the contents of Hart- ley’s oral statements to appealed them. Defendant his convic- Appellate Division, tion to the alleging error in the trial court’s suppressed failure to have “statements attributed to the de- fendant in violation of federal and state constitutions.” The Appellate conviction, Division Judge affirmed the with Gaulkin dissenting. That court determined that defendant’s remain silent had not been violated and that therefore his

260 properly confession was appeal admitted. This followed as of right. See R. 2:2-l(a)(2).2

II The fifth amendment to the United States pro Constitution * * * part vides in person shall compelled “[n]o * * criminal case to against be a witness himself US. Const, In Malloy Hogan, amend. V. 378 U.S. 1, 84 S.Ct. 1489, L.Ed.2d (1964), Court held this privilege against applicable self-incrimination states, to the through the fourteenth Although amendment. we have no provision similar Jersey Constitution, our New privilege firmly itself “is part established as of the common law of New Jersey incorporated and has been into our Rules of Evidence.” Martin, In re 90 N.J. (1982); see also Evid.R. 23, 24, and 25 (bestowing privilege, setting boundaries, out its describing exceptions). privilege against a defendant waives his self-incrimina

When do, tion, government surely he is entitled to has the as “heavy demonstrating that such a waiver was made burden” intelligently.” Miranda v. Arizo “voluntarily, knowingly, na, 16 436, 444, 1602, 1612, 86 S.Ct. U.S. Louisiana, Tague see (1966); 652, 653, (1980); Whitebread, Crimi 62 L.Ed.2d C.H. However, 15.05, (1982). nal Procedure ques at 300-01 § apart from the first inquiry separate tion of is an waiver question engages appeal: our attention in this whether the that properly respected right defendant’s to remain silent has been Balkcom, 1242, v. 735 F.2d See Jarrell in the instance. first denied, (11th Cir.1984), cert. 11, reh’g n. 740 979 1252 F.2d — -, 2331, 848, 105 S.Ct. denied, reh’g 85 L.Ed.2d police initially had 2We denied certification on the issue of whether apartment in New York. 97 N.J. 605 conducted a lawful search of defendant’s Thus, 2:2-l(a)(2), (1984). the case is now limited to in accordance with Rule filed, namely, only respect of which the dissent was whether the that issue in right violated defendant’s to remain silent. authorities

261 — -, 3547, (1985); denied, 87 670 105 US. S.Ct. 257, 261, Grant, 408 380 N.E.2d People v. N.Y.2d (1978); Stone, The Miranda Doctrine in the N. Y.S.2d (hereinafter (1977) Court, The Sup.Ct.Rev. Burger Doctrine). Miranda, requirement clear that the that the Court made suspect’s of his police “scrupulously honor” the assertion requirement that independent is right to remain silent knowing, intelligent, voluntary. Michi See waiver be 325-26, 102-03, 96 Mosley, supra, 423 U.S. at gan v. 320-21; Doctrine, supra, Sup.Ct. The Miranda L.Ed. 2d that there be no 133. must be taken therefore Rev. at Care analysis that are followed blurring separate lines of requirement on the one “scrupulously honor” respect of the other. The distinction be the waiver issue on the hand and relief in this case: concepts stands out bold the two tween honor a holding scrupulously failure given our unconstitutionally renders right to silence previously-invoked in re incriminating statement made any resultant compelled question no interrogation, there can be sponse to custodial could not arise the waiver issue In the instant context waiver. right scrupu had been exercise of the asserted until after the minimum, giving of fresh Miranda lously by, at a honored scrupu an asserted warnings. requirement in order carefully guarded in this state lously has been honored is privilege opportunity to exercise ensure that full (1984). Because Kennedy, 97 N.J. permitted. State and defendant’s “feder not honored in this case the unconsti deemed to have been statement must therefore be al” posed on simply no issue compelled, there is waiver tutionally Rowe, 460 ex rel. Sanders appeal. See United States (“No if the (N.D.Ill.1978) possible waiver F.Supp. ‘scrupulously original request for counsel was suspect’s ”). honored.’ engages in an suggests that the Court Stein’s dissent

Justice by refusing to test application Mosley “unduly technical” response by waiver Hartley’s standards. Post at 316. Justice us this federal constitu- apparently would have abandon Stein proposed adopt analysis instead a waiver approach and tional Bradshaw, concurring opinion Oregon by Justice Powell’s (1983). 77 L.Ed.2d 405 That 103 S.Ct. US. changing the law here is has not succeeded Justice Powell reaffirmation, in the readily apparent from the Court’s recent context, “two-step” approach to state- “right to counsel” of the right. of a constitutional Michi- ments after assertion obtained 1404, 1410, Jackson, -,-, gan v. 475 U.S. S.Ct. (1986). Ill against is one of several privilege The self-incrimination sought protect important rights that the Court procedural prerequisites to by establishing admissibil- Miranda produced by custodial interro- ity any inculpatory statement prior admissibility of an gation. to Miranda Whereas on those state- in-custody accused’s statements turned whether meaning due-process “voluntary” within the ments were clause, presumption an of com- Miranda created irrebuttable given in the pulsion as to such statements absence Elstad, 470 warnings by E.g., Oregon mandated that case. 298,---, 1285, 1290-93, 105 S.Ct. 84 L.Ed.2d (1985), opinion. parts more in IV and V of this 229-31 of which Miranda, produced by statements un- Consequently, under interrogation on the State’s in-custody are inadmissible warned in-chief, at-, 84 L.Ed.2d at 231. case id. the heart of the doc- “compulsion” that is at up conjured scenario trine does not assume the “rubber-hose” of “coercion” or “involuntariness.” dictionary definition Rather, proper is “that premise behind the decision without persons safeguards process in-custody interrogation inherently compelling suspected or accused of crime contains undermine the individual’s will to pressures which work to speak compel resist him to he and to where would not otherwise Miranda, freely.” supra, do so 384 U.S. at 86 S.Ct. at compulsion contemplated by 16 L.Ed.2d at 719. The then, Miranda, “presumed,” is “inherent” or rather than “actu- Kamisar, Heavy al.” But Blow Delivered Miranda cf. Decisions, Journal, 2, 1985, Sept. The Law at National S-22 distinction, (“[TJhere no purposes, is constitutional between compulsion compulsion.”). recog- inherent actual and Our own significant compulsion nition of the nature of this and of its requiring in ramifications reflected our decisions that a request, ambiguous,” questioning “however to terminate or to present diligently have counsel must be honored. State v. supra, 97 at 288. Kennedy, N.J. at at 96 S.Ct. supra, 423 U.S. Michigan Mosley, at again the emphasized Court the pressures”

“coercive that are setting. inherent a custodial key The Court focused passage on this from Miranda'. warnings given, Once have been the is clear. If subsequent procedure the individual during indicates questioning, manner, at to any time or any prior interrogation that he to wishes remain the silent, must cease. this At he point has privilege; shown he intends to exercise his Fifth Amendment and a privilege statement taken the invokes his person cannot be other than after or product compulsion, subtle otherwise. Without to cut off of questioning, setting interrogation on in-custody the individual to operates producing privilege overcome free choice in a statement after the been has once U.S. 86 S.Ct. (emphasis invoked. L.Ed.2d at 723 [384 473-74, 1627-28, added).] specific problem The confronting Mosley Court was that although appears Miranda to contain clear requirement interrogation “the cease” suspect must when the asserts his silent, opinion to remain does discuss under what circumstances, if any, may interroga- authorities resume tion. question “in Mosley, law on a state

Prior to the case this Doctrine, supra, Sup. disarray.” Ct.Rev. sharply approach at 130. The courts divided their to were the issue. * * * pre-Mosley an ad hoc to to the

Most courts seem have adopted approach two-pronged undertaking was the subse- First, inquiry. implicitly problem, an continuation of the prior attempt merely impermissible quent question * * * genuinely if the Second, it a event? independent or was attempt, interrogate an was the event, was in fact subsequent attempt independent rights knowing, intelligent, eventual waiver voluntary suspect’s * * * meaning might of Miranda? As because of the expected, within under were the results standards, approach unpre- absence of clear modified this often inconsistent. some courts Finally, approach by dictable and high knowing, intelligent, employing an standard voluntary especially (footnotes at 130-31 [Id. in the face of renewed attempts question. waiver omitted).] foregoing passage in demonstrated the It was the confusion Mosley. sought the to resolve in that Court Mosley, suspicion robbery, on of The defendant in arrested rights carefully his when the informed of constitutional was custody. Mosley him stated that he understood police took into rights speak did the robberies. his and that he not wish to about The the de- Immediately, police questioning. the terminated police questioned by two hours later a different fendant was concerning homicide. location an unrelated officer at another interrogation the defendant the of this second was At outset 105, silent, at 96 U.S. again of his to warned remain 322, 327, he made incrimina- S.Ct. at L.Ed.2d at after which question ting The was whether those statements statements. against his trial. could be used defendant at murder opinion recognized that reso- for the Court Justice Stewart’s beyond required key the of the look lution the issue Court Miranda, quoted supra 263, reliance on at because passage strict, interpretation interrogation of must cease” literal “the and results.” take one to “absurd unintended would The 96 S.Ct. at at 320. Court said: at 46 L.Ed.2d interrogation continuation of custodial after cessa- momentary To permit allowing repeated of Miranda would frustrate the clearly by tion purposes being questioning the will of the At rounds of to undermine person questioned. against taking a blanket extreme, voluntary the other prohibition interrogation, regardless further or a from immunity statements permanent safeguards into transform the irra- circumstances, wholly would legitimate investigative activity, and tional obstacles police deprive suspects intelligent of an to make informed and assessments their opportunity interests. [Jet] “per Court proscription therefore eschewed a se of indefi- any nite upon questioning by police duration further officer any subject, on person once the in custody has indicated a silent,” 102-03, desire to remain at id. at L.Ed. 2d at and held instead “the admissibility of statements person obtained custody after has decided to remain depends silent under whether ‘right Miranda on to cut off questioning’ ‘scrupulously honored’.” concluding Id. Mosley’s right questioning terminate “scrupu- had been honored,” lously and incriminating that the statements elicited from the interrogation second against could be used him at trial, the Court stated: * * * This is not a case where the failed to honor a decision of a police person questioning, interrogation refusing to cut off either to discontinue the by upon persisting or efforts to wear resistance request down his repeated change make him his mind. In contrast to such here practices, interrogation, questioning ceased the resumed after immediately only passage significant of a of time and the a fresh set of period provision warnings, interrogation restricted second to a crime that had not been a subject interrogation. S.Ct. earlier [Id. 105-06, at 322.]

Mosley has come in for some harsh treatment at the See, hands e.g., of the commentators. Professor Stone’s com Doctrine, supra, Sup.Ct.Rev. ments in The Miranda 177 129-37, in Michigan a section entitled v. Mosley: at First If * * * (“[T]he requirement You Don’t an Succeed that individ rights ‘scrupulously surely ring ual’s be nice honored’ has a to it, but, applied as and in Mosley, formulated is devoid of content,” 134; and, clear “Mosley only substantive offers id. ambiguous protection guidance virtually to the accused and no police to the or courts must live rule.” who with the Id. at 137); Note, Declining Miranda Doctrine: The Issues, Court’s Development Miranda 36 & Lee Wash. (1979) 259, (“[T]he ‘scrupulously L.Rev. 268 Court’s honored’ provides guidelines test no concrete lower courts resolve precisely interrogation resumed.”); the issue when may be 266

Note, Procedure, Michigan A New Mosley: v. Constitutional 695, (1976)(Mosley’s “scrupulously honor” Rev. 696 54 N.C.L. guidance vaguely is offers little requirement defined “so it may police.”). courts there to lower or the Whatever basis criticisms, no in at Mosley leaves room for doubt least for these suspect silent respect: of a to remain is the decision (1) approach “scrupulously do not him honored” when (3) hours, (2) warnings, he receives fresh Miranda is for two he officer, (4) questioned by a he is questioned different respect an different from the one for which he is in offense custody. required the suppression

A of courts have of incrimi number one nating statements in cases which or more of the factors See, admissibility Mosley e.g., supported absent. were 214, Cir.1984) (under (7th v. F. 2d Percy, Robinson 738 220 questioning period for a of time Mosley, cessation of certain renewed); interrogation People can be required before v. 455, 259, Young, Ill.App.3d 115 71 Ill.Dec. 450 N.E.2d 947 (recess (1983) warnings are a minimum and fresh Miranda States, 444 prerequisite reinterrogation); Wilson United 25, (D.C.1982) (all Mosley required 31 are A. 2d factors Maddox, reinterrogation); States v. validate United (W.D.Okla.1976)(reinterrogation on same offense is F.Supp. 60 33, Buxton, 44 precluded People v. N.Y.2d Mosley); cf. (1978)(later 384, 403 non-coercive reinter N.E.2d N.Y.S.2d warnings). permitted requisite rogation after reiteration of in a applied Mosley courts factors more Still other have fashion, largely coer focusing on the level of overall flexible See, surrounding particular interrogation at issue. civeness (2d Cir.), denied, e.g., Terry, 702 F.2d 299 cert. United States v. 77 L.Ed.2d 461 U.S. (1983) (statement given as

104 S.Ct. reinterrogation subject after result of a non-coercive on same admissible); warnings held forty minutes and fresh Miranda (4th Cir.1979)(statement Smith, 608 F.2d United States questioning after a and in the absence made brief cessation warnings non-coercively of formal fresh admissible as Miranda obtained). disagreement

The commentators too are in toas which of the Mosley indispensable “scrupu- factors is to fulfillment lously requirement. reports honor” Professor Kamisar that Stone, Doctrine, supra, Professor author of The Miranda Sup. Mosley Ct.Rev. sees as “critical” to the result the fact interrogation separate, the second was restricted to a crime, “unrelated” whereas Kamisar lists three elements as renewing requirementV questioning “the minimum when “(1) suspect indicates that he wishes to remain silent: (2) original interrogation promptly terminated; question- is ing only passage significant period is resumed after ‘the of a two); (3) (presumably passage time’ at least an hour or suspect given warnings another set of at the * * Kamisar, interrogation outset of the “The Edwards and Bradshaw Cases: The Court and the Taketh Giveth Court Away,” Developments 5 The Court: Trends and (1984). 1982-83 go today, respect

We Mosley’s need no further case, impact indispensable permissi on this than declare as to a resumption interrogation previously- ble of custodial of a suspect furnishing warnings. warned of fresh Miranda inflexible, “bright-line,” Unless the follow this minimum requirement, a defendant’s statement made in the above-stated part circumstances cannot be admitted into evidence as prosecution’s McCloskey, case in-chief. also See State (1982)(“prosecution 30 n. 3 N.J. cannot use statements during interrogation, made second before [the defendant’s] warnings given”.). which new Miranda were not suggests Justice Stein’s a reminder or dissent reacknow- ledgement previously-asserted right of an accused’s to silence is satisfying “scrupulously as effective a Mosley’s means of requirement bright-line rewarning require- honor” as is our approach ment. Post at 318-319. The weakness of such an by very bright-line highlighted rule are and the merits of a clearly Frieberg’s statement as case. the Court views While (see 267-271, Stein views coercive discussion Justice infra request as a non-coercive to reconsider a the same statement silence, fully right of the to consistent with previous invocation honoring right. bright-line help A rule will scrupulous of that cases, at least on the this confusion and conflict future avoid requirement “scrupulously hon- question of the minimum for (cid:127) oring.” avoided, Supreme specifically Although Mosley, Court determining adoption “per of a se” test for when a sus- right “scrupulous- pect’s previously-invoked to silence had been honored,” ly we nevertheless are convinced that our establish- “bright-line” requirement of warn- ment of a minimum renewed ings determining right scrupulously when that has not been Jersey only not is sound as a matter of New common honored spirit law but is also consistent with the Court’s and hence with the federal law as we understand it. decisions Moreover, “bright-line” even absent the rule that we adopt today namely, previously-invoked to silence is — of, least, scrupulously honored in the at the fresh absence surrounding taking warnings circumstances —the by agents highly of the first statement FBI were such that it is unlikely that that statement could have been admitted under standard, any “totality including the of the circumstances” test supra used some courts. at 266. Were that test to See decision, guide our we would narrow our focus to the conduct agent Frieberg, for it is he who overcame defendant’s previously-expressed speak representa refusal to to the FBI respect thoughtful tives. With all due to dis Justice Stein’s sent, unpersuaded by Frieberg’s are its characterization of we reacknowledgement Hartley statement as no more than a availability” “the continued to remain silent. Post Frieberg inferentially way did refer even at 318. no rights. nothing of defendant’s remarks His amounted less pressure-laden expression get than a of his desire to defendant to talk. purport request, It did not even to be a inasmuch as it question was couched not in the form entreaty, of a or even an advice to defendant —“I agent’s but rather in the form of the you would like to reconsider and now is the time if you are going to make a statement. Now is the time to do it.” added.) (Emphasis important following Frieberg’s approach

As as the events to Hartley, silence, after defendant had invoked his to is the urgency pressure sense of that attended those events. At a.m., commenced, interrogation 10:43 when the federal “waiting federal authorities were for a call from the Eastern pertaining arraignment.” District to It was [defendant’s] Frieberg that context that Hartley told that “now is the time” Frieberg aware, testified, to make a statement. And as he * * * dealing speedy arraignments very speedy, the federal law with [is] particularly my experience in the Eastern District of New York. In limited York, government with the Eastern District of New the burden on the is moving process along. Brooklyn tremendous in terms of The Office particularly extremely aware of that situation. your get superior You received instructions from to the defendant trans- Q ported arraignment delay? to this without delay. A Without law, know, you Under the federal or at least as far as what is the sanction Q imposed failing arraign appropriate period? within the time defendant A You lose the case. A dismissal? Q A Dismissal.3 anxiety agents 3The of the federal was understandable in view of the fact that passed Hartley's nearly

several hours had since arrest and six had hours elapsed finally from the time of his arrest to the time he was taken for arraignment. agents perilously violating speedy- came the federal close to * * * arraignment requirement: making "An officer an arrest under a warrant person unnecessary delay shall take the arrested without before the nearest * * 5(a). magistrate available federal Fed.R.Crim.P. Even if such a viola- dreaded, agents obviously tion would not have led to the that the it dismissal seriously suppression Mallory risked statement obtained. See v. United people apparently The federal communicated to the New rush, Jersey authorities this same sense of the need to for as testified, City Atlantic Detective Mason he did not conduct his interrogation question-and-answer form because the FBI agents “they away told him that had to take I [defendant] only get had a limited time to a statement from him.” Accord- ing Sergeant City Depart- Toulon of the New York Police ment, during interrogation * * * who was the room Mason’s Hartley, the quick. interview was “rather We were * * * Sir, had, pressured only for time. I say, we would * * * approximately about five minutes we were [b]ecause * * pressed Toulon, being According *.” before the New Jersey interrogation, authorities even started their were “[w]e called, informed that the Eastern District Court had that the agents requested they dispatch federal office—that immediately.” defendant to their court agent Frieberg’s twice-imparted When “now is the time” advice is viewed in foregoing, apparent the context of the it is that the surely “time” to which he made reference could not “good” “right” Hartley, have been a time or a time for al- though ostensibly Rather, that is the sense of the statement. it swiftly running Frieberg was the “time” that was out on before fast-approaching arraignment abruptly interrupt could phase investigation trigger and itself an additional sixth- See, Illinois, amendment e.g., counsel. Moore v. 220, 226-27, 458, 463-64, US. 98 S.Ct. 54 L.Ed.2d 432-33 (1977); Fourteenth Annual Review Criminal Procedure: of United States Appeals Court and Courts 1983- of (1984). 73 Geo.L.J. 375-76 speaks loudly, speaks record in the form of testimo- ny witnesses, of the State’s own impatience of the authorities’ joint investigation to nail down the with defendant’s confes- (1957); States, U.S., 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 § 18 U.S.C.A. (1985). understandable, laudable, impulse, sion—an even but one whose of not consistent with exercise the context this case was threatening, scrupulous rights. observance of defendant’s So misleading, Frieberg’s Hartley the burden of counsel to or was (abandon and, your silent now or determination to remain never, speak), say nothing of a that the non-observance—to non-scrupulous previously-asserted observance—of defendant’s likely, inescapable, most conclusion. right to silence is a if not

IV Hartley’s previously-asserted Having determined that honored, by scrupulously to silence virtue both complex, bright-line and the we turn to the rule factual question consequences flow that cir important of what from part turns in on how we characterize cumstance. The answer express resolve scrupulously failure to honor defendant’s viewed as a violation not to make a statement: it to be rules, prophylactic or is it a clear merely of rather Miranda’s as right against compulsory self-incrimination violation such, previously As and hence a “constitutional” violation? announced, 256-257, we conclude that the failure supra right to previously-asserted scrupulously honor an accused’s and a violation to a constitutional violation silence amounts self-incrimination, and privilege against state common-law absence of fresh warn any inculpatory statement made unconstitutionally and ings must be deemed have been illegally a matter law. obtained as assertion, post we do

Contrary Handler’s to Justice and non- lines constitutional not blur “the distinctive between grasp recognize those lines and We constitutional violations.” Rehnquist for drawn Justice full well the distinction Tucker, 2357, 41 Michigan 417 U.S. Court (1974), on hand conduct that between the one right against compulsory self- directly infringes on an accused’s incrimination, only “prophy- the other of the and on a violation

lactic developed rules protect right,” to at id. 94 S. Ct. L.Ed.2d at 190. Court has made it abundantly clear its that under current formulation of the doctrine, Miranda a to warnings failure administer Miranda consequences does not itself “breed the same irremediable as police infringement of the Fifth Oregon Amendment itself.” Elstad, at-, supra, 470 S.Ct. at 84 L.Ed.2d at 232. See at 276. infra perceive qualitative

We difference between a failure to warnings in place, administer Miranda the first and a failure to honor, they asserted, after rights have been the constitutional warnings designed that those are to In the secure. former police conduct, standing instance unaccompanied alone and intimidation, by any oppressive acts of coercion or does not inevitably undermining in-custody demonstrate an of the sus- pect’s ability to differently, exercise his free will. Put produced by in-custody statement interrogation an unwarned may voluntary despite be the absence of warnings. Tucker, Michigan supra, See U.S. at S.Ct. at Although 41 L.Ed.2d at 193. the unwarned confession must suppressed be under force of Miranda’s irrebuttable presumption compulsion, the violation of Miranda’s dictates is not in that instance of constitutional dimension. Id. at 445-46, 2364-65, L.Ed.2d at 193-94. hand, suspect

On the other once the has received his Mi- and, warnings Hartley, randa as did he determines to exercise privilege silent, fifth-amendment to remain a different set of play. points considerations comes into Miranda itself to this through explication purpose conclusion its of prophylac- tic rules: safeguards interrogation [Without proper process incustody persons compelling or accused of crime contains suspected which inherently pressures

work to will undermine the individual’s to resist and to him to compel speak where he In order combat would otherwise do so these freely. privilege against pressures permit exercise the opportunity full self-incrimination, the accused must adequately effectively apprised

273 rights rights U.S. must honored. at his and the exercise those be fully [384 16 S.Ct. 86 at at 467, 1624, 719.] L.Ed.2d plain implication foregoing passage that the suspect unimpeded access to the Constitution. must be afforded in a Court v. As Justice Handler wrote for unanimous State making “the Kennedy, supra, pivotal consideration whether, upon being his inquiry is advised of constitutional rights, that he wanted the assistance of defendant indicated question, respect particular charge counsel with present or he have counsel available before whether wanted added). interrogation.” (emphasis at 97 N.J. 287 further Therefore, suspect if after a avails himself of the Constitution’s invoked, police that has been that protections the violate violation, definition, magnitude. Again, constitutional by is of regard, it scarcely clearer in that when Miranda itself could be in-custody suspect announces his instructs us that when an silent, point that at wish to remain he has shown privilege; taken his Amendment statement he intends to exercise Fifth privilege than the product invokes cannot be other after his person 16 L.Ed.2d U.S. 86 S.Ct. 1628, at or 474, subtle otherwise. compulsion, [384 at 723.] -, -, 106 Wainwright Greenfield, 474 U.S. also v. See (invocation 623, (1986) 634, 639, 631 of the 88 L.Ed.2d S.Ct. “constitutional warnings is of right to silence after Miranda dimension”). correctly in the read we have

Our confidence treat by Supreme Court’s respects is borne out foregoing Jackson, supra, v. progeny, Michigan see ment Miranda’s 1404, 631; -, Oregon v. 89 L.Ed.2d 106 U.S. S.Ct. 222; 1285, 298, 84 L.Ed.2d Elstad, 105 S.Ct. supra, 470 U.S. Arizona, L.Ed.2d 451 U.S. S.Ct. Edwards denied, 101 S.Ct. reh’g (1981). Court held that Arizona, supra, Edwards sought refuge in constitu- has in-custody

an accused who only through to deal with the tionally-guaranteed until counsel interrogated by the authorities counsel cannot him has been afforded unless the accused himself initiates 484-85, police. further conversations with the 451 U.S. at 1884-85, Any 68 L.Ed.2d at 386-87. statement ob proscription tained violation of that is inadmissible virtue fifth prohibition against and fourteenth amendments’ self-incrimination, 481, compelled 1883, 101 id. at at S.Ct. 68 plainly (not at a L.Ed.2d constitutional violation a mere 384— stumbling rules,” over “prophylactic Miranda’s as Justice text, Handler’s bracketed invention of Edwards’ post at 292 it), n. 1 would have and this in the face of the trial court’s specific conclusion that the at confession issue in that case was 483, “voluntary.” 1884, Id. at 101 S.Ct. at 68 at 385. L.Ed.2d recently, Supreme again More the Court made the distinction advert, quite explicitly, to which we this time Oregon v. Elstad, 298, 1285, supra, 470 U.S. 105 84 S.Ct. L.Ed.2d 222. significance That decision takes on considerable in the context case, discussion, of this it wherefore warrants extended both part here and in V.

In Elstad the police defendant made a statement to a officer gone purpose who had to defendant’s home the arresting of officer, him. The giving warnings, without Miranda told El thought that he robbery. stad Elstad was in a involved certain stated, “Yes, I Elstad was there.” The defendant trans ported headquarters, to the Sheriff’s where full warn Miranda ings given, were gave and he then a full The confession. Oregon Appeals Court impact of found of that coercive dissipated, unwarned statement was not to have shown and so subsequent confession was it inadmissible because was the poisonous Elstad, 673, Or.App. “fruit tree.” State 61 677, 554, 552, denied, 617, 658 P.2d review 295 Or. 670 P.2d (1983), Elstad, Oregon 1033 rev’d nom. supra, sub 470 U.S. 298, 105 1285, S.Ct. 84 L.Ed. 2d 222.

The Oregon Court ruled court had applied wrong standard. The Court observed “fruit the poisonous test, 282, tree" discussed at infra

275 is applicable only when there has been a constitutional 230, 1291, 84 L.EdM at-, at 470 U.S. S.Ct. violation, 105 at procedural a violation Miranda’s rules does and that a violation. “The failure level of constitutional rise to the warnings does not mean that administer Miranda * * Id. at actually received been coerced statements have at 233. Miranda 1294, estab- -, at S.Ct. 105 84 L.Ed.2d required by Failure to warn as prophylactic a rule. lished compulsion, irre- presumption of which is Miranda creates a regards statement in the only as use of the unwarned buttable (For example, an state- prosecutor’s case unwarned in-chief. York, Harris v. New 401 U.S. may impeach. used ment be (1971).) Miranda exclusion- S.Ct. L.Ed.2d Fifth in the of a “may triggered even absence ary rule Elstad, at-, supra, violation.” Amendment Although the Court stated at 230. at L.Ed.2d compulsion, presumption that violation creates at-, concluded S.Ct. it id. earlier remark was “beyond dispute” that Elstad’s that it was Id. Fifth “voluntary, meaning Amendment.” within 1296, at-, at at 236. “Neither S.Ct. 105 84 L.Ed.2d ‘interrogation’ was coer- nor the of either environment manner living place midday, at in the took The initial conversation cive. home, respondent’s with mother in his area of own room area, Id. away.” steps a few kitchen hand, between, repeatedly distinguished on the one The Court procedural requirements prophylactic, Miranda’s violation of hand, violations. It observed and, the other constitutional on mistakenly had assumed Oregon Appeals Court of that warnings give necessarily breeds Miranda to “that a failure infringement consequences of a constitution- as the same 1290, ——, 229. In right.” Id. at at S.Ct. at L.Ed.2d al Tucker, 433, supra, 417 U.S. Michigan Elstad to comparing 2357, 182, out pointed Justice O’Connor S.Ct. procedures the Miranda both “the breach cases] [in at-, at 470 U.S. S.Ct. compulsion.” actual no involved 1293, 84 L.Ed.2d at 231. emphasized The Court that mere “in administering errors prophylactic procedures Miranda * * * should not the same consequences irremediable breed as police infringement itself,” of the Fifth at-, Amendment id. 1293, 232, 105 S.Ct. at 84 L.Ed.2d at suspect that “a who has once responded yet to unwarned questioning uncoercive is thereby not waiving disabled from rights and confessing after given requisite he has been warnings.” Miranda at-, 1298, 105 S.Ct. at 84 L.Ed.2d at 238. It is of surpassing importance today’s however, purposes, recog to reaching conclusion, nize that in pains the Court took distinguish Elstad from cases “concerning suspects whose invo rights cation of their to remain silent and to have counsel present flatly ignored were police subjected while them to interrogation.” continued 3, Id. at-n. 105 S. Ct. at 1296 n. 3; 84 L.Ed.2d at 28,105 234-35 n. see also id. at-n. S.Ct. at (Brennan, J., 84 L.Ed.2d at 256 n. 28 dissenting) (elaborating point). on the Presumably same Justice O’Connor had mind us, cases similar to the one before such as United Rowe, States ex rel. Sanders v. supra, 460 F.Supp. at 1137 (failure scrupulously to honor previously defendant’s invoked right error;” counsel was “constitutional subsequent confes given sions after warnings inadmissible); State v. Me., Ayers, 433 A. 2d 362 (obtaining confession after sus pect has asserted questioning cut off amounts to [suspect’s] “violation of rights.”). constitutional Finally, Jackson, Michigan v. supra, important only for its reaffirmation of the constitutional basis of the Edwards holding, at-, 475 U.S. 89 L.Ed.2d at but also for constitutionally-based its own holding. Jackson, disregard authorities’ of defendants’ assertions arraign- ment of their to counsel led the Court to hold that the “postarraignment confessions were improperly obtained—and * * the Sixth at-, Amendment violated Id. 106 S.Ct. at 1406, 89 L.Ed. 2d at 636. There is therefore no basis whatsoev- er for Justice assertion, post Handler's at 292 n. * * * “arguabl[y] the offensive action condemned Jackson simply but not rise to the level of a constitutional violation does ancillary principles of Miranda.” violates the “right to and are counsel” Although both Edwards Jackson “right Mosley to cases the mold of and rather than silence” us, principles of the case we are satisfied that the the before is, scrupulously to readily are failure cases transferable —that right is as much a constitutional honor an asserted to silence previously-invoked right to a failure honor a violation as is to True, there is the tests determine counsel. a difference right honored—under Edwards and when the asserted has been counsel, Jackson, can no requests the there be once accused accused, interrogation, by the in the absence of initiation absent counsel, holding reading our today, under whereas our honoring scrupulous Mosley, requirement minimum the the right suspect’s previously-invoked to silence is readmin of a it istering warnings. once has But been previous a failure to honor determined that there has been instance, the violation can ly-invoked right in either resultant infringement. constitutional See anything not be other than a Blevins, (Ct.App. P. 108 Id. 697 2d State 1985). to ensure that (“[B]oth Mosley strive ] [.Edwards suspect rights will free from coercive invoked his who analytical vary, attempts change his frameworks mind. different, rights is importance or of the not because the value are implementing them but because the realities of omitted)). say needless, (Citation And needless to same.” — is, con pronouncement except for Justice Stein’s waiver fol trary, post of defendant’s at 317—an assessment previously-asserted constitutional lowing of his non-observance right-to-silence context than appropriate in the no more validity right-to-counsel In both instances in a case. depend the asserted had been waiver on whether would honored; analysis case a waiver scrupulously in neither would A “bright line” rule had been observed. reveal whether the compliance analysis would no more test officer’s waiver Mosley requirement rewarning with the than with the Ed requirement wards that renewed communication be initiated the accused. applying Mosley

Numerous other courts have come to the today, namely, same conclusion that reach we failure privilege to honor a defendant’s asserted to remain silent vio rights. lates his fifth-amendment See United v. Suggs, States Cir.1985) (11th (statement F.2d inadmissible as fifth if response violative of and sixth amendments made in to any interrogation kind of after defendant stated his desire to silent); Smith, (2d remain Anderson v. 751 F. 2d Cir. 1984) (asking why refusing defendant he was to talk violated right required remain and to silent court was to determine whether admission of statement was harmless constitutional error); Percy, supra, (questions Robinson v. 738 F. 2d at 220 right after invocation of to remain silent violated defendant’s rights); fifth-amendment Gathright, Toliver F.Supp. (E.D.Va.1980) (admission into evidence of confession response interrogation obtained to after defendant invoked right against to silence violated his privilege constitutional self-incrimination). foregoing persuasive view the authority are con- we

vinced that the failure honor previously-invoked right to to inherently silence smacks so of compulsion statement following here, that failure involuntary by definition. So FBI agent Frieberg’s failure to warnings readminister Miranda obligation was a violation of the scrupulously to honor Hart- ley’s silence, right asserted and therefore amounted to a violation of defendant’s fifth-amendment state common-law right compelled against to be a witness himself.

V (1) recapitulate holdings To our thus far: failure readmin- ister warnings before interrogating an accused who previously has invariably invoked the to silence will result honored”; finding “scrupulously has not in a that the been (2) any unconstitutionally thus com- statement obtained is inadmissible, having pelled, and hence as been obtained of the fifth amendment and of the state common-law violation right against turn now to the issue of self-incrimination. We statement, given admissibility the second the one to state the “federal” authorities after the statement —here declared first, one, preceded by compelled have been unlike the —but warnings. fresh We conclude that this second state- too was ment inadmissible. approaches to The problem.

There are two the first reaches process produced conclusion that the the second state- the that inextricably interrogation so the first ment was entwined with procedure part procedure. as to of that The second same separate. interrogations treats the as 259-260, following the indicated, As we have at supra interrogation Hartley City questioned FBI was Atlantic given Detective after defendant was fresh Miranda Mason Investigator warnings by County Barnett. Atlantic Criminal officers, and City police New York Detective Carlos Toulon Two Foster, (Toulon “distinctly Sergeant Lyle present were likewise room). agent also Rodney FBI Davis was that recalled]” Toulon, FBI Barnett, Mason, and Foster had arrived with morning partici and agents apartment that had defendant’s interrogation premises. in the The “state” pated search of Hartley just had under place took the same room which had gone questioning by agents the same FBI who executed apartment. warrants defendant’s Although separate as treats two interviews State distinct, single continuing they comprise a apparent it is that event, they overlapped. extent inasmuch as to considerable log FBI shows the federal authorities’ interview p.m., 12:57 defendant underwent interview ended at after which by agent Frieberg as “a fingerprinting, additional described joint that this lengthy process due the fact rather investigation.” p.m. At 1:17 transported defendant was to his arraignment. Frieberg did unsigned not witness the FBI state ment, agents but two other signed it as witnesses p.m. at 1:17 City Atlantic typed Detective Mason’s version of the “second” interview sets forth the time as “1:10 top P.M.” at the page. first According statement, to this the interview was interrupted by agent FBI Robley, who stated Hartley had arraignment, to leave for and the thereupon interview was p.m. concluded at 1:33 Whether typewritten the FBI’s state presented ment was while defendant was undergoing the sec interrogation ond is not certain from obvious, the record. It is though, that at very least the second interview followed so closely on the heels of the first as part parcel it, to be and hence to be burdened with the same constitutional infirmi ties. States, See Westover v. United 384 U.S. 86 S.Ct. (1966); Denno, L.Ed.2d 694 Leyra 347 U.S. (1954); 98 L.Ed. 948 People v. Washington, 127 cf. Misc.2d (Sup.Ct.1985)(dictum N. Y.S.2d 660 to the same effect). Westover,

In Miranda, decided with the defendant was inter- rogated by police local officers in custody while for over four- agents teen hours. FBI then advised Westover of rights began and interrogating him about a different crime. The Supreme Court held that warning the later was insufficient to protect privilege against Westover’s self-incrimination. The Court said: Although the two law legally enforcement authorities are distinct and the interrogated crimes for which they Westover were the different, on him impact

was that of questioning. a continuous period

[********] suggest We do not law enforcement authorities are from precluded questioning individual who has been held for a of time other period by interrogated authorities and warnings. them without by A appropriate differ- ent case would be if an presented accused were taken into the custody by second original removed both in authority, time and from his place surround- ings, rights and then given advised of his adequately an opportunity interrogation exercise them. But here the FBI was conducted immediately following interrogations the state in the same station —in the same obtaining the surroundings. compelling from Westover confession Thus, local were the pressure applied by authorities beneficiaries federal interrogation. 16 L.Ed.2d at 496-97, in-custody [384 added).] (emphasis hours fact was held for fourteen But for the that Westover hours, deals and the case Hartley for five or so Westover than a failure problem of unwarned statements rather with silence, the cases have honor the invocation of strikingly patterns. similar fact Denno, supra, 347 U.S. 74 S.Ct. Leyra immediately 948, the defendant made two confessions L.Ed. confessing under conditions. psychiatrist to a coercive after all the confessions were inadmis Court held that so close that the relation of the confessions was sible because say must the facts of one controlled the character one other; In a they parts process. all of one continuous were “An principle espoused. recent New York case the same may if it consti suppressed admissible otherwise statement improper interrogation initiated part tutes of a continuous by law enforce wrongful or other acts or omissions questioning 127 Misc.2d Washington, supra, People ment officers.” (no when interrogation continuous found 486 N.Y.S.2d 660 intoxi passed in an hours after defendant confessed while three slept had the interim between condition and defendant cated confessions). seen, interrogations As we have the federal-state us likewise continuous. in the case before were as interrogation processes if But even treat we distinct, remains the second state separate and the result approach admissibility of ment is inadmissible. Under in the first on how the depends “state” confession instance “federal,” If, first, as we have statement is characterized. or case, obtaining FBI statement to be the of the determined of the deprivation to a violation and a amounted constitutional self-incrimination, render right against thus common-law state and, law, illegal compelled state ing unconstitutionally it under inadmissible, obtained, any “separately-obtained” ly and hence 282 approached eye

second statement must with an to determin- ing product violation, it was the whether a constitutional poisonous sometimes known as the “fruit of the tree” doctrine. Illinois, 590, 422 See Brown U.S. 95 S.Ct. 2254, 45 L.Ed.2d States, Wong (1975); Sun United S.Ct. 471, 416 371 83 U.S. 407, Barry, State v. (1963); 80, 87, 441 86 N.J. cert. 9 L.Ed.2d denied, 1017, 553, U.S. S.Ct. (1981); 454 102 70 L.Ed.2d 415 Elmore, N.J.Super. State v. (App.Div.1985). 205 373 The sec- if, ond being confession would be the “fruit” of the first after warned, Hartley gave the second statement a because of feel- ing already bag”: “the cat out of the bag confessing, after course, Of an accused has once let the cat out of the by psychological no what inducement, matter he is never free thereafter of the disadvantages having get confessed. He can practical never cat bag. good.

back in the The is out secret In such a sense, later confession Bayer, [United States v. be looked as fruit of may the first. 331 always upon U.S. S.Ct. L.Ed. (1947).] 532, 540, 1398, 1654, 1394, Connecticut, See also Darwin v. 346, 350, 391 U.S. 88 S.Ct. 1490, (1968) (Harlan, J., concurring) (“A principal why suspect might reason make a or second that, third confession is simply having already confessed once twice, might or he think he has repetition.”). little lose Court addressed these related doctrines in Elstad, Oregon v. supra, U.S. 105 S.Ct. L.Ed.2d 222. infringement Because there was no actual Elstad, suspect’s rights constitutional more than there Tucker, by Wong had been Sun’s the case was not controlled doctrine that fruits a constitutional violation must be at-, 470 suppressed. 84 L.Ed.2d at 231. obvious,

As now becomes the difference between Elstad the case before on importance. us takes critical Elstad failure have furnished the accused with his warn- ings only resulted in exclusion his unwarned statement. indisputably Because statement was voluntary, a subse- quent having confession was untainted. There been no consti- tutional violation in obtaining connection with the of the first

283 statement, perceived as the second statement could not be violation, therefore admissi of a constitutional and it was fruit contrast, held, following Mosley, ble. we have Hartley’s previously-in scrupulously failure to honor FBI’s magni of constitutional voked to silence was violation tude, and the federal statement is deemed have been uncon (under law) As stitutionally illegally compelled. El and state clear, triggers the “fruit of now makes that circumstance stad See, e.g., doctrine. States the constitutional violation” United Elstad); Wauneka, (9th Cir.1985)(discussing 2d 770 F. 1434 v. 462, (Fla.Dist.Ct. 465-66 Madruga-Jiminez, v. 485 So.2d State App.1986). admissibility generally, the to that doctrine

Pursuant be determined the second or “state” confession would either that the “state” prosecution could establish whether or product of the first “federal” state statement was not ment, first was attenuated. or that the “taint” of the statement 87; Illinois, supra, 86 N.J. at Brown v. Barry, v. See State 427; 45 at at at L.Ed.2d supra, S.Ct. Rowe, supra, F.Supp. v. ex rel. Sanders United States include the to this determination 1137. Factors relevant circumstances, confessions, any intervening time between place, re change whether defendant there was whether the defend warning rights, of his whether adequate an ceived confession, having effect of his initiated second ant confession, flagrancy previously “purpose and the made a Illinois, supra, 422 U.S. at Brown v. misconduct.” 2261-62, 427; 603-04, v. Robinson 95 S.Ct. Duckworth, (citing supra, 738 F.2d at 221 Holleman Percy, 834, 104 (7th Cir.), denied, 464 U.S. F.2d cert. Wauneka, supra, (1983)); 2d 116 United States 78 L.Ed. F. 2d 1434. fact, ordinarily questions as foregoing are viewed hearing. ordinarily trial after a And by a court be determined hearing conducting such a purpose a remand for making findings of fact and conclusions of law would be in case, however, order. In this step unnecessary, that is for we satisfied, are on the basis of appraisal our careful of the full complete us, record statement, before that the second coming as it did on the heels of—if tandem with—the first, unconstitutionally-obtained, compelled statement, was unavoidably generous tainted. The indulgent most view of the generate record cannot a conclusion of sufficient attenua- tion between the first and second interrogations dissipate the statement, taint. chameleon-like, The second retains the colora- law, tion of the first as a matter of and hence must itself be deemed to have been unconstitutionally compelled.

Under either view of the second or “state” statement— produced whether seen as by the interrogation process same as first, or, though the even separate, by as tainted the first—it is inadmissible.

VI holdings We base the only of this case not on our under- standing of law, federal constitutional but on our state com- privilege against mon-law supra self-incrimination as well. See 256, 267, 271, 277, 278, 281, it is our 282. While view ground that either sufficient, would compelled be we are principles jurisprudence of sound to rest our decision on both. law,

As for the federal we that questions believe were the squarely presented Court, before us Supreme to the its decision would be the same as ours. All signposts point the in that direction, and sought we have faithfully, follow them not to remains, write new however, law. The fact the Court has squarely not ruled on the issue before us of whether the attending circumstances obtaining of the “federal” statement amounted to a scrupulously failure to honor defend- previously-asserted ant’s silent, to remain with the result that that statement must be deemed to have been unconstitu- tionally compelled. In respect of law, federal constitutional therefore, exercise, predictive one on the ours is a conducted authorities, understanding of none- basis of our best but reading law predictive. theless We think our federal right. acknowledge may wrong. it Given the We be involved, question duty see our to settle it importance we law. as a matter state giving guidance to our law-en necessity for our own are faced officials cannot be underestimated. We

forcement Deatore, presented a situation similar to that in State v. with case, (1976). When we decided that United States N.J. yet had not ruled on whether a defendant’s Supreme Court post-arrest could used on to under silence cross-examination importance Recognizing of this cut an “alibi” defense. justice system, as the issue to our criminal as well state’s question,” confusing “disarray in treatment decisional law such cross-examination we ruled as a matter state with the improper. 70 N.J. 112. Our concern effective was criminal-justice system led us in our state has administration of to or criminal defendants’ other circumstances create enforce Const, VI, power, of 1947art. rights supervisory under our N.J. 3, 2, constitutionally-required para. scope when the of federal § See, 66 N.J. 510 protection e.g., Gregory, unclear. State v. transaction,” rule (1975) compulsory-joinder (adopted “same Rosenblatt, Rodriguez 58 N.J. 281 prevent jeopardy); double v. (1971) (indigent subjected not to be to conviction defendants magnitude imprisonment consequence of entailing or other ap having opportunity had counsel first fair have without we have rested pointed). Similarly, in non-criminal contexts personal rights alternatively dealing important with decisions 10, Quinlan, grounds. E.g., 70 N.J. on In re state federal 922, 40, Jersey, 429 Garger nom. New U.S. cert. denied sub 319, (1976). 289 97 50 L.Ed.2d S.Ct.

Moreover, were we to rest our decision would be remiss we grounds grounds state exclusively on when alternative federal clearly independent state-law to set forth exist. Failure law in a in which federal constitutional for a decision case basis 286

is also involved can lead to needless in the review United States Court, require, cases, and could in fact in some subsequent redundant proceedings in our own courts. Such a disregard judicial for concerns of economy criticized, has been Upton, Massachusetts v. 727, 735-39, 466 U.S. 2085, 104 S.Ct. 2089-91, 721, (1984) (Stevens, J., 80 L.Ed.2d 728-31 concurring). today We heed that criticism by stating expressly that our decision, which we view as consistent with federal fifth-amend- cases, alternatively ment is based “on separate, bona fide adequate, independent grounds.” Michigan Long, 463 1032, 1041, 3469, 3476, U.S. S.Ct. 103 1201, 77 L.Ed.2d (1983). privilege against integral self-incrimination has been an

thread in Jersey the fabric of New common law since our beginnings Fary, State v. (1955); as a state. 19 N.J. Zdanowicz, see also State v. N.J.L. (E. 1903) 622 & A. (“Although we have not necessary deemed it to insert in our prohibitive constitution provision, doctrine, the common law by legislation by unaltered practice, or lax us deemed to its full Jersey, person have force. In New compelled no can be against himself.”). abe witness The voluntariness of confes consistently sions has been tested in this state under common- principles, principles expanded law albeit often or altered Smith, response to federal constitutional decisions. State v. (1960), N.J. denied, cert. (1961).

L.Ed.2d 367 independent The existence grounds state for our decision not, however, preclude should reliance on United States Su- preme precedent Court rights when federal-constitutional are implicated, case, inas the instant and the bulk decisional law in the area is federal. To the extent that rely we on federal precedent in reaching decision, our only state-law we do so purpose guidance, recognizing the precedents that those may compel not the result Michigan See today. that we reach Long, supra, 1041, 463 U.S. at 3476, 103 S.Ct. at 77 L.Ed.2d at 1214.

287 YII holdings very are consistent with the essence of the Our Supreme privilege against self-incrimination. The Court stated in Miranda that privilege against maintenance of our

the self-incrimination —the essential adver- All founded on a of values. these to one sary system complex policies point —is overriding thought: underlying privilege the constitutional foundation the is the government dignity integri- or federal —must accord to the and respect —state * * * privilege of its citizens. the is fulfilled when the sum, ty only person guaranteed “right to remain silent unless he chooses to in the speak U.S. of his own will.” at 86 [Miranda, supra, 460, unfettered exercise (citations omitted).] S. Ct. at 1620, 16 L.Ed.2d at 715 governmental respect dignity To accord this “to integrity of its citizens” that is the foundation of this fifth- rule, privilege, amendment as well as of our own common-law interrogation must of a sus- law-enforcement authorities cease pect request on and cannot resume until a new set of his warnings given, impress upon accused that his has been to right to remain silent is still in effect and that he need speak it desire. The of this unless be own benefit “bright-line” protect rights of a defendant rule is that it will and, time, implement. The easy at the same for the difficult, today more rule that we announce will no hinder critically-important business of law-enforcement than did Miranda, supra, rule that the Court laid down 481, 1631, at 727. 16 L.Ed.2d U.S. S.Ct. illegally and of The exclusion of an confession any testimony procured nothing to which it has any obtained in its wake Government deprives investigating legitimate methods of

lawful claim and creates no impediment prosecuting States, v. United n. [Harrison crime. (1968).] n. 1052 n. 10 guarantee today requirements that will Our aim is to fashion self-incrimination, easy protection right against that are observe, produce and consistent results and that will clear cases to follow. the cause remand- judgment of conviction is reversed and

ed for retrial.

HANDLER, J., concurring in dissenting the result and part.

For reversal and remandment —Chief Justice WILENTZ CLIFFORD, HANDLER, POLLOCK, and Justices O’HERN and GARIBALDI—6.

For STEIN—1. affirmance—Justice HANDLER, J., concurring in part dissenting part. In this case the defendant by incriminated himself twice confessing. Both support confessions were used as evidence to criminal his conviction. The first confession was elicited after subjected interrogation, defendant was to renewed custodial notwithstanding previously the fact he had claimed his right response to remain silent in warnings. to earlier Miranda first, The quickly second confession followed the when he was again interrogated by group a different of law enforcement officers, warnings. who had readministered Miranda resumption interrogation, of custodial which led to the confession, initial unquestionably amounted to a failure law “scrupulously enforcement authorities to honor” defendant’s claimed to remain posed by silent. The fundamental issue these events concerns the nature and extent of remedial relief necessary that is rectify “scrupulously a violation of the requirement. honored” determining This only entails propriety excluding limiting evidentiary or use of the first confession but also whether the second confession must be similarly solely restricted as evidence because of the derivative unlawfully effects of the obtained initial confession.

I. opinion, As recounted in the Court’s defendant Hartley was arrested, and, in custody, given while he was Miranda warn- ings. Acting upon warnings, these he unequivocally exercised Thereafter, to remain silent. readministering without warnings, Agent Frieberg FBI initiated a conversa- Hartley, uncontrovertibly amounted to a re- tion with which interrogation. of this interro- sumption of As result renewed gation, defendant confessed. events, focusing initially upon related

In this series of —those majority posits first confession—the the “scru to defendant’s pulously operative of the honored” standard as the measure defendant’s constitutional interest. It observes that Miranda Arizona, 436, 1602, (1966), 16 694 US. S.Ct. L.Ed.2d “appears requirement interrogation to contain a clear that ‘the suspect right must cease’ when the asserts his to remain majority The engages at 263. then in Ante an silent.” analysis Michigan Mosley, consistent with (1975),conditioning admissibility “the person custody of statements after the in has decided obtained ‘right questioning’ to remain silent ... on whether his to cut off ” ‘scrupulously honored.’ Id. at 46 L.Ed. S. Ct. 2d at 321. Ante at 263-267. analysis majority correctly legal notes that occa- by by complicated

sioned the facts of this case is the omission in Mosley any guidelines applied from to be order to assure right “scrupulously silent is that an accused’s claimed remain honored.” See discussion ante at 265-267. Notwithstand- ing clarity, majority’s I this absence of am confident that the by approach of the taken review fact-sensitive “scrupulously justifies Court in the context of its honored” test fresh adopts. the standard that it That standard mandates that warnings prior resumption of be administered to the any interrogation following right an accused’s exercise of his primary consequence I remain silent. also endorse the remedial posited by majority failure to meet standard: inflexible, ‘bright-line,’ minimum “Unless the follow this requirement, a defendant’s statement made in the above-stated part circumstances cannot admitted into evidence as prosecutor’s case in-chief.” Ante 267. points, light my with the Court on these I concurrence dissenting majority differing from Stein’s

join the Justice reacknowledgement of an ac- simple that a reminder or view preserve to remain silent is sufficient to cused’s “scrupulously requirement. “bright-line” A rule honored” warnings calls for the readministration Miranda will silent, only efficaciously more secure the to remain it will cases,” serve to avoid the “confusion and conflict future ante a statement to characterize attempting inherent subsequent law enforcement authorities to an invocation of the right to remain silent.

Nevertheless, important I an difference with the have Court. majority’s It relates to the characterization of the failure to warnings, constituting readminister a failure to “scru- honor,” violation, pulously its as a constitutional and conclusion is, any necessarily, “unconstitutionally resultant statement compelled as a matter my opinion, of law.” at Ante 256. “scrupulously the failure to honor” in circumstances does these privi- not violate the constitutional or fundamental common-law lege simply itself. it entails of the Rather a violation incidental prophylactic designed preserve ancillary, or rules the basic view, privilege against Consequently, my in self-incrimination. requirement a statement obtained violation of that is not law,” “unconstitutionally compelled may as a matter of and probative purposes therefore constitute evidence for other than proof guilt. direct of criminal

II. noted, already according majority, As to the the failure to first, “federal,” warnings readminister Miranda renders the or “unconstitutionally illegally statement as a obtained mat- added). perceive ter I (emphasis law.” Ante “bright-line,” “scrupulously-honor” violation of the rule to con- only prophylactic stitute a failure to observe rules of corollary Miranda. The to this view is that such a violation give only presumption would rise to a that the statement was not, compelled, perceives it, majority as the unconstitutional compulsion matter of as a law.

Nevertheless, an ancillary infraction of the rules that are rights lightly. constitutional is not to taken be claimed singularly important, to remain silent itself is its breach clearly serious and the need to deter its violations evident. justify treating presumption compulsion These concerns as irrebutable as to direct or affirmative use of a statement of the obtained violation to remain silent. Such a probative statement therefore should excluded as evidence guilt prosecutor’s of criminal on the case-in-chief. approach Elstad,

This is consistent Oregon with 470 U.S. (1985). 84 L.Ed.2d There the Court said: presumption compulsion. warnings

Failure to administer Miranda creates a unwarned statements that are otherwise within Consequently, voluntary meaning of the Fifth must Amendment nevertheless be excluded from evidence under Miranda. the individual Miranda’s medicine Thus, case, preventive to the defendant who has suffered no identifiable constitu- provides remedy (citations 105 S.Ct. 84 L.Ed. [Id. at-, tional 2d harm. at 231 omitted) (emphasis added).] recognition “presumption compulsion” Elstad’s of a distinction, previously in Michigan derived from a drawn Tucker, (1974), 94 S.Ct. directly infringes “between on the one hand conduct that self-incrimination, right against compulsory on the accused’s only ‘prophylactic on the other a rules violation ” 439, 2361, developed protect right.’ to at at Id. S.Ct. 190; Supreme The Court em- at ante at 271-272. 41 L.Ed.2d finding that the failure to distinction as a basis for ployed this demanding warnings, under circumstances impart Miranda administration, “pro- the merely to a violation of their amounted Elstad, supra, v. 470 U.S. phylactic Oregon rules” of Miranda. 1293, at-, at 232. 84 L.Ed.2d Thus, rationale, extrapo- I the basic which believe should be Elstad, only protective the rules lated from is that a violation ancillary rights to constitutional is not that are incidental or Accordingly, presumption a constitutional violation. itself necessary invalidity affixed to such a violation is all that is to strength sufficiently redress such a violation. The of the effects, invalidity, parallels presumption and its remedial specific particular generally gravity the violation and the advantage sought prosecutorial to be obtained from the violation.1 words, majority, by professes recognize its the distinc- violations and non-constitutional

tion between constitutional However, impose “bright-line” opting to violations. that Miranda warnings requirement be readministered as the effectuating “scrupulously only method for honored” man- date, to adhere to this stan- majority classifies the failure It, effect, rule, treats the dard as a constitutional violation.2 right arising respect Fifth 1With to the exercise of the to counsel in a context, example, noted that "additional Amendment for Court safeguard safeguards necessary counsel.” The are when an accused asks for "bright-line" prohibits questioning, provided rule that all once an was a counsel, right the accused himself initiates accused has invoked the "unless communication, exchanges police.” or conversations with the Edwards further 378, 386, 477, 484-85, 1880, Arizona, reh’g v. 451 U.S. 101 S.Ct. denied, 973, 3128, (1981). The Court 452 U.S. 101 S.Ct. 69 L.Ed.2d 984 prophylactic of] "that it is inconsistent with rules Miranda [the observed authorities, instance, reinterrogate progeny at their an accused its for Arizona, clearly right custody asserted his to counsel." Edwards v. if he has supra, 101 S.Ct. at 68 L.Ed.2d at 387. See Solem 451 U.S. 638, 641, 1338, 1340, (1984). Stumes, It is 104 S.Ct. 79 L.Ed.2d 579 suspect’s arguable respect that the Court would consider failure to the Sixth Amendment as one that does invocation of the to counsel under ancillary simply but violates an not rise to the level of a constitutional violation Jackson, U.S.-, safeguard E.g., Michigan under Miranda. 106 S.Ct. (1986). 89 L.Ed.2d 631 warnings perception give support after a 2As its that a failure to suspect silent a violation has availed himself of the to remain constitutes Arizona, majority supra, magnitude," turns to Miranda v. of “constitutional 694, itself, proclaims 16 L.Ed.2d which it “could 384 U.S. 86 S.Ct. However, regard." scarcely Ante at 273. the Miranda in that clearer .be language merely provides support proposition that an invocation cited for the protects, as well as the interest it as in constitutional character. so, doing majority, my judgment, obfuscates the distinction and consequences overstates the that federal courts likely are to attach “scrupulously to a violation of the honored” requirement arising solely from the absence of renewed Mi warnings. Michigan Mosley, supra, randa 423 US. at L.Ed.2d at 320. As noted in Martin v. (11th Wainwright, Cir.1985), 770 2d although F. there is a distinction suspect’s request between failure to honor the “ questioning” ‘cut off’ give and “a failure to Miranda warnings,” reasoning properly applied of Elstad is in either context by because both of these misdeeds violate requirements Miranda, “the technical but not violate [do] Moreover, the Fifth Amendment itself.” the result sanctioned this, majority, appears in a case such as contrary to the Mosley perception “scrupulously Court’s of the honored” re quirement, only which was invoked to determine whether the guidelines observed, Miranda had been not whether there had privilege against compul been a violation of the constitutional sory Michigan Mosley, supra, self-incrimination. 423 U.S. at 96 S.Ct. at 46 L.Ed.2d at 319. properly

This failure to apply the distinction between viola- “prophylactic rights tions of rules” and constitutional has led seemingly position: the Court to a anomalous an initial failure give any warnings merely Miranda at all is violative of standards, “prophylactic” repeat the failure to while identical warnings they already after have been administered and claimed, point, join is a constitutional I violation.3 On requires questioning immediately to remain silent cease. This decision, issue, gave Mosley problem rise to the now at which addressed the interrogation might properly when resume. At no time did the Miranda court consequences "scrupulously honor” the forecast failure to claimed silent, years adopted Mosley. to remain a standard not until nine later in majority may interpreted encourage 3The rule law enforcement author delay imparting warnings anticipation eliciting ities to a volun- majority rule is dissenting contention that the Stein’s Justice likely under Post at 324. It seems irreconcilable with Elstad. “scrupulously require- honored” Elstad that a violation dimension; per of constitutional addition- ment would not be se warnings, factors, requisite beyond the absence of Miranda al to a constitutional necessary to such an infraction are elevate violation. consti- the distinctive lines between majority has blurred Michigan drawn in and non-constitutional violations

tutional At Tucker, 41 L.Ed.2d 182. supra, 417 U.S. analysis least, inconsistency majority’s very renders the highly Consequent- dubious. of the federal constitutional espoused by majority ly, I confidence that the rule have no accurately presages federal constitutional law. case, carry potential- my majority differences

In this with repercussions relative to the admissibili- ly significant remedial subsequent to the initial ty of the “state” confession obtained “scrupulously honored” stan- secured in violation of confession scrupulously to majority that the “failure dards. The concludes right of silence ... smacks so previously-invoked honor a following compulsion any statement that inherently that at 278. This com- involuntary by definition.” Ante failure is analysis brings the to extreme and pulsion-by-attribution Court should, suggest, I concentrate results. The Court unrealistic necessary to assure the simply on remedial relief is what requirement, or limited scrupulously-honored such as a flexible improper exclusionary rule that could address the need to deter encourage proper police con- in-custody interrogation and to Leon, 468 U.S. S. Ct. duct. See United States subject Elstad rather than the se confession, to an type analysis, per .tary warning to a Miranda involuntariness that follows confession subsequent warnings. officers, renewed Police is not honored" by "scrupulously underlying give recognize bad faith the failure to however, should that any subterfuge majority's "bright- warnings, to the directed as required under a "voluntariness” test. rule, line” will be scrutinized strictly (1984) (good-faith 82 L.Ed.2d 677 violation Fourth Amend- require application ment does not exclusionary rule). In- stead, it dwells presumed, on “inherent” —that is the involuntary particular statement, character aof actual— adopts, absolute, as a consequence, an rigid and total exclusion- ary rule.

I recognize, think it should suffice to as majority, does the that an “unwarned confession must suppressed under the force presumption” despite Miranda’s irrebutable the fact in-custody interrogation may “unwarned be volun- Conversely, 272. I disagree Ante at with tary.” its conclu- that a to impart warnings sion failure subsequent Miranda to an accused’s exercise of per his to remain silent se constitutes a magnitude,” violation “constitutional at ante 273, notwithstanding If, the voluntariness of this confession. instance, give first a failure to warnings Miranda is merely deemed constitute prophylactic to a an violation when gives voluntarily, accused a confession is no to there reason possibility foreclose the that might voluntarily an accused con- subsequent invoking fess to remain silent. Such circumstance is prophylactic no different from the violation of initially that an voluntarily Miranda exists when accused con- prior receiving Hence, warnings. by fesses its Miranda categorical conclusion that the first or federal statement in this “involuntary by is case definition” and that its elicitation is a magnitude,” violation “of constitutional has an Court taken step predetermine admissibility that unwarranted serves to of the second confession. has, believe, I

The Court misapplied also misconceived and poisonous the “fruit of the tree” doctrine. See Brown Illinois, 590, (1975); 422 U.S. S.Ct. 45 L.Ed.2d 416 States, Wong Sun v. United 371 U.S. S.Ct. L.Ed. (1963). apply 2d 441 The Elstad declined Court “fruit poisonous excluding tree” doctrine as a basis for a second inculpatory given subsequent warnings. statement to Miranda It noted that “errors ... made law enforcement authorities administering procedures ... prophylactic should Miranda consequences as in the same irremediable breed Elstad, supra, itself.” fringement of the Fifth Amendment at-, 232. at 84 L.Ed.2d at Similar S.Ct. ly Supreme concluded that what was in Tucker the Court departure “prophylactic from merely was involved Hence, poisonous application of the “fruit of the standards.” doctrine, exclusively for exclusion evidence tree” reserved violations, as a of constitutional was deemed obtained result inapposite. analysis my judgment, appropriate the more commences recognition application that the of the “fruit of the

with the is on clear constitutional poisonous tree” doctrine bottomed fairly extremely implicit is It is violations and fact-sensitive. poisonous of the itself that the extension “fruit Elstad upon expressly contingent the actual voluntari- tree doctrine” Court, upon statement. The ness of unwarned finding “[njeither the nor the manner of that environment [the coercive,” ‘interrogation[s]’ pre-Miranda or de- unwarned] requires although that the unwarned termined “Miranda admissibility suppressed, must subse- admission solely quent turn on statement should in these circumstances at-, voluntarily knowingly and made.” Id. whether it is added). (emphasis This ratio- 84 L.Ed.2d suggests if the statement in this case was nale unwarned thereby giving in rise to a constitutional involuntary, fact violation, poisonous the doctrine would the “fruit of tree” the admissibility of second properly apply ascertaining in the at-, 1291, 84 L.Ed.2d at 230. confession. Id. S.Ct. voluntary, it Conversely, if statement was in fact the unwarned of doctrine. obviate consideration the would Accordingly, “scrupulously case of failure to honor” in the a right silent, solely arising remain suspect’s a exercise of his required warnings, different of Miranda from the absence the consequences flow a determination of factual from remedial Although presumption a of initial confession. voluntariness the of importance involuntariness attaches of the because of the protectable statements, in uncompelled interest the strength of presumption vary depending desig the can on specific the use resulting While, for noted, nated the previously confession. as presumption using the is irrebuttable in terms of the unwarned statement itself direct guilt as evidence of criminal on case-in-chief, prosecutor’s presumption may be rebutted when statement is not to purpose. be considered for this York, See Harris v. New (a (1971) warning confession obtained without defendant counsel, appointed

of although his inadmissible on the prosecutor’s case-in-chief, voluntarily given and therefore impeachment purposes cross-examination); admissible for on Miller, (1975) (adopting State 67 N.J. 229 Harris v. New law); as a state York matter of see also Terpstra Niagara Co., Fire Ins. 26 N.Y.2d 308 N.Y.S.2d 256 N.E.2d 536 (1970) (voluntary written and oral statements an insured that he set the that destroyed building, fire despite insured request the fact that the insured had been denied his to consult counsel, are policy). admissible a civil action on insurance however, majority, appears any to foreclose use derivative following prior an unwarned confession invocation of the by embracing to remain It silent. does so the conclusion any “that following involuntary by statement that failure is definition,” 278, thereby ante at elevating the violation to “constitutional magnitude.” analysis, ap Under this it would pear that voluntary otherwise reliable and statements could for impeachment purposes legitimate be used or for other might derivative use that in the arise course of criminal trial. my immutable, opinion, presumption an irrebutable involuntariness should not initial be ascribed confession purposes determining for admissibility the second Elstad, confession. “the presumption, As noted though purposes prosecution’s irrebutable case chief, require does not their the statements and fruits be at-, inherently discarded as tainted.” Id. 105 S.Ct. at first, Rather, pre-Miranda statement if the at 231. 84 L.Ed.2d fact, voluntary, then a subse found, of to be as a matter is solely properly evaluated post-Miranda confession quent, analysis. North Carolina “waiver” a traditional under (1979). 60 L.Ed.2d Butler, 441 US. factually initial, is itself if unwarned statement Conversely, poisonous tree” doctrine the “fruit of the involuntary, then admissibility of the subse to determine must be summoned (1st Vose, 785 F.2d 364 Bryant v. quent statement. See voluntary was Cir.1986) (if oral confession the defendant’s violation, the later though due to a inadmissible fully if admissible warned would be confession written Wauneka, 770 F. 2d compulsion); of United States devoid Cir.1985) (to admissibility of a (9th determine the warnings, the court given subsequent to Miranda confession in prior statement obtained decide preliminarily must whether voluntary). violation Miranda technical analysis engaging in such a voluntariness I believe compulsion for presumption of upon a rebuttable premised admissibility the first or determining the use purposes of case-in-chief, suitably pro- prosecutor’s outside statement against self-incrimination privilege the constitutional tects both it privilege; preserve ancillary rules devised and the majority rule. remedial overkill fostered avoids the also perceive I to be”the in terms of what this conclusion I reach circumstances likely under these analysis most to be followed of federal law. as a matter

III. support alternative basis provides law an State common voluntari- compulsion and a factual presumption a variable violation regarding a statement obtained inquiry ness case to appropriate silent. It is right to remain claimed particularly in “the ab- independently, grounds state address on this determination Supreme Court of a definitive sence

299 Williams, 39, (1983); 57 v. question.” v. 93 N.J. State State (1980). believe, Schmid, I matter of common 84 535 as a N.J. law, proffered analysis, pre- on that this voluntariness based represents realistic sumptive compulsion, a sounder and more protecting suspect’s posed to the dilemma between a solution privilege against self-incrimination and his exercise of Miranda law rights society’s and interest reasonable and effective Moreover, analysis is consistent with our enforcement. approaches in the particular concerns and traditional adminis- Hunt, 338, v. tration of our criminal laws. State N.J. (1982)(concurring opinion). recognized importance right to remain

We have particularly importance honoring silent and of by suspect. Kennedy, once it has been claimed v. See State 278, (1984) (trial court authorized to determine 97 N.J. “effectively apprised an accused has whether been [Mi rights rights and the exercise of those randa [has ] [whether] honored.”); (1984). fully Wright, 97 State v. N.J. been] Hence, “bright-line” requirement sharp, that Miranda warn interrogation is ings prior resumption readministered be essential, law, preserve the substantive as a matter of state McCloskey, v. right to remain silent. Ante at 267. See State 18, (1982) (when 30 n. to remain silent is 90 N.J. invoked, warnings, interrogation may not absent new Miranda 352, resumed); Magee, v. 52 N.J. 374-75 be see also State (1968), den., 1097, 89 21 L.Ed.2d 789 cert. 393 U.S. (1969) may it (recognizing that under certain circumstances be law, warnings repeat necessary, as a matter of administration). despite prior their recognized a matter state law that a We have also as directly may statement taken violation of Miranda by prosecu- guilt of criminal used as affirmative evidence (1967), Gosser, cert. 50 N.J. 445-46 tion. See State (1968) denied, 1434, 20 L.Ed.2d 295 390 U.S. 88 S.Ct. (exclusionary rule of Miranda bars from evidence statements during in-custody interrogation unless he by made a defendant rights knowingly has been advised his Miranda intelligently rights); waived such Vigliano, State v. 50 N.J. (1967) (evidence prescribed obtained in the absence of Mi- inadmissible); warnings Lutz, N.J.Super randa State (in (App.Div.1979) 283-84 the absence of Miranda warn- ings by defendant, exculpatory statements made whether or inculpatory, may prosecution). not be used addition, acknowledged we have the distinction between constitutional and nonconstitutional violations and the remedial consequences that flow from each. Kennedy, See State v. 285-86; supra, Miller, 97 supra, N.J. State v. 67 N.J. 229. violation, To rise to the level of a constitutional necessary it is egregious the conduct of law enforcement authorities contravene, simply prophylactic the protecting rules the privilege against self-incrimination, compelled indepen- but an dent, non-ancillary right. (II), constitutional Sugar State v. Cf. (1985); (I), 1, 100 214 (1980) N.J. v. Sugar State 84 N.J. 25 (“Because the of violation to effective assistance of serious, counsel was guarantee so and because the of a fair trial has been so threatened the insolence of local law officers, enforcement the fruits of their lawlessness must not prosecution manner.”); be allowed to aid a in any State v. Belucci, (1980) (violation N.J. to effective arising assistance of counsel out of conflict of interests man- per conviction). dates a se reversal of a Furthermore, our common law has striven to avoid artificial barriers to the quest search for truth and justice in the Thus, administration of the criminal laws. when such a state- ment has been obtained in ancillary violation of rights, dimension, but is not deemed to be of constitutional may statement legitimate prosecutorial be used for purposes aside from direct guilt. Miller, evidence of criminal State v. supra, 233; Ross, (1979). N.J. State v. 80 N.J.

Our common law has upon also focused and stressed the reliability predicate of confessions as the for their use as direct sedulously have incriminating in criminal causes. We evidence admissibility in evidence to assure the measures devised that, realistically, considered volun could be statements those 250, 267-72 Hampton, v. 61 N.J. tary and reliable. See State (1967); (1972); Yough, 49 599-600 State State v. N.J (Weintraub, concurring), (1960) Smith, 557-60 C.J. 32 N.J. den., (1961) 5 L.Ed.2d 367 cert. (mandating preliminary hearing to assess the volun the use of admitting prerequisite inculpa of a confession as a an tariness statement). actively opportu tory We have also embraced the guidelines nity beyond to move of federal directives unyielding proper commitment assure the admis pursuit of an sibility Yough, supra, of confessions. 49 N.J. at See State (avoiding uncertainty develop of future federal law by adopting beyond-a-reasonable-doubt respect test with ments preliminary findings). Throughout voluntariness our com exacting scrutiny history, mon-law we have mandated of the cir surrounding inculpatory state cumstances elicitation an primary objectives reliability ment commensurate with Miller, (1978)(trial and voluntariness. See State v. 76 N.J. 392 exhaustive, perform must an fact-based voluntariness re court evidence). prerequisite admitting view as a to a confession into admissibility, Once a statement has surmounted the hurdles of it fact-finder, upon jury, then devolves the as the ultimate probative Hampton, supra, determine its worth. See State v. 61 N.J. at 272. a voluntariness case entails in this I commend

The standard compulsion of presumption upon rebuttable a inquiry based the to determine in order confession first to the attached This confession. subsequently obtained admissibility of the state announced previously our with fully consistent standard cautious, flexible yet represents a It practices. common-law of goal of Miranda’s validation toward approach directed of his into evidence from the admission a defendant protecting restricting the unduly without confession improperly obtained surrounding indirect use derivative or of such confessions when genuinely reliability. facts demonstrate their approach, I of the am also view that this as matter of state law, unnecessarily would common extend “fruit of the the poisonous 80, 89-90, Barry, tree doctrine.” v. State 86 N.J. Cf denied, 1017, 102 (1981) cert. 454 U.S. (under analysis, intervening close factual independent circum sufficient the purge illegal stances were taint of defendant’s thereby satisfying establishing arrest the state’s burden of subsequent product the confession was of free defendants’ exploitation will than the illegal rather result of of an arrest); (Law Div.1983), Starling, N.J.Super. State aff'd, N.J.Super. (App.Div.1985). Rather, recognizes it although prosecutor’s a confession is excluded on the case-in-chief virtue of an irrebuttable of presumption com pulsion, voluntary may justify shedding its stig character presumed inadmissibility ma of when deciding questions of its admissibility purposes. Miller, use or for other See State supra, 67 N.J. 229.

IV. instance, In judge unduly depreciated impor- this the trial Hartley’s tance of exercise to remain silent in considering admissibility “federal” statement. finding the initial confession admissible as affirmative evidence guilt, recognize apply criminal the trial court failed to or mandate, “scrupulously engender honored” which would an presumption compulsion, or, according irrebutable to the majority, compul- a conclusive determination of unconstitutional Instead, sion as a matter of directly law. the court embarked upon inquiry a factual voluntariness and determined that the initial voluntary; confession was in fact the statement was solely admitted in evidence disapprove on basis. I trial failure apply “bright-line” “scrupulously court’s honored” and test its determination that this initial confession prosecution’s is on case-in-chief to establish admissible the noted, guilt. previously I would affix an irrebuta- criminal As statement, compulsion thereby the initial presumption ble of direct, disqualifying it from consideration as affirmative evi- dence.

Despite disagreement this with the trial court’s decision to guilt, as of I admit the first confession direct evidence criminal voluntariness, finding least accept can its of factual determining the confession on purposes of effect first respect to admissibility the second confession. With of dissent, although analysis, set forth Justice Stein’s factual as surrounding Agent Frieberg’s circumstances remarks perceived demonstrating an interrogation may be as at pressure Hartley, on trial court ... found tempt to exert “[t]he intelligent knowing, Hartley’s as waiver was a fact determina court’s factual voluntary.” Post at 314. trial tion, resulting totality the circumstances voluntari from its (D.N.J.), review, Sierra, F.Supp. aff'd, ness U.S. v. Miller, (1978), Cir.1984); (3d State v. 76 N.J. F. 2d overborne, clearly is will not indicating Hartley’s was Pickles, 46 N.J. 542 in the record. See sustainable State (1964). Johnson, 42 (1966); N.J. State which for presumption compulsion, I satisfied that the am rebuttable, regarded as purposes appropriately is these “federal” au- Hartley’s decision to confess overcome. threats, coercion, force or product thorities was part law enforcement officials. improper conduct on the applica- Henee, majority’s from the compelled I feel to dissent doctrine, consistent poisonous tree” “the fruit of the tion of first, pre-Miranda statement my with view that “[i]f subsequent, post- voluntary, than ultimately found to be solely should evaluated under a confession And, analysis.” supra at 298. ‘waiver’ See traditional relating post- facts with the uncontroverted accordance confession, Miranda, no to disturb the “state” I see reason finding trial court’s that the second voluntarily confession was rendered.

V. I separately my agreement write to confirm majori- with the ty’s recognition importance of the of the “scrupulously hon- requirement ored” support right of the claimed to remain imposition silent and “bright-line” its of a rule to effectuate right. time, At the express my same I disagreement with explanation its application principles these to this case. reasons, For these and in view of the improper admission into confession, evidence of the initial I join would in the Court’s judgment to reverse and remand.

STEIN, J., dissenting. This is a case, “second-level”1 involving Miranda as it does rights who, of an accused after receiving his Miranda warnings, right invokes one of them—the to remain silent. The posed issue impression is one of first before this Court: When an accused right silent, asserts the to remain under what may circumstances law-enforcement interrogate officials accused or request that he reconsider the exercise of this right? constitutional majority

The today adopts Court per se rule that officials, law-enforcement confronted with an accused who has silent, invoked the to remain must at a minimum readmin- ister warnings Miranda interrogating before either the accused or requesting that he reconsider the assertion of his fifth- right. According amendment majority, to the per this se rule applies irrespective of the number of times warnings Miranda already have and, been administered apparently, even when 1 Kamisar, See "The Edwards and Bradshaw Cases: The Court Giveth and the 5 Court Taketh Court: Trends and Away,” Developments 1982-83, (1984) (citing v. Grant, 366, 371-72, 45 N.Y.2d People 380 N.E.2d N. (1978)). 408 Y.S.2d suspect acknowledged to the have officials law-enforcement view, In my is still in effect. remain silent that his in this case but incorrect result only leads to an per rule not se officials helpful clarifying for law-enforcement concerning application increasingly issues convoluted interrogations. principles custodial I opinion adequately majority facts set forth in the and are However, emphasize I cer- require restatement. would do not in order to focus aspects appellant’s custodial treatment tain case. the issues time of importance is the fact that from the paramount

Of apartment at the critical Hartley’s in his 7:30 a.m. until arrest Agent a.m., by Special Frieberg at statement 10:43 ante 257- scrupulously been rights respected by had the law-en- 258 his arrest. As noted participating officials his forcement a.m., Hartley at 7:30 he opinion, when was arrested majority Rights” FBI “Advice of rights from the was read Miranda Thereafter, any made arresting officers none of the card. him, apartment or on the interrogate either at his attempt to Brooklyn-Queens FBI office. way to the in a a.m., Hartley agents present FBI were and three At 9:15 photographic fingerprinting and processing containing room agents un- and the were apparatus. He was handcuffed rights, of his he Before he was reinformed armed. ability briefly and his his education questioned about was Hartley had at- English language. and understand read high high through grade the tenth obtained school tended equivalency re- fulfilling New York State’s diploma by school capable hence, he no was there was doubt quirements; understanding rights the Miranda that were about to be reread to him.2 agents

One of FBI then Hartley reread to the “Advice of Rights” form and afterwards him handed the form to read. At the bottom of the form Rights” section, “Waiver of which read: rights I have read rights this statement of and I understand my what are. my willing I am to make a statement and answer I do not want a questions. doing. at this I time. understand and I

lawyer know what am No or promises threats have been made to me and no or coercion of kind pressure has been against used me. majority opinion indicates, As the Hartley displayed some hesitancy signing about the waiver form. When asked what was, problem Hartley replied, “I don’t I believe want to make a statement at this Accordingly, time.” Hartley was instructed to cross out the sentence on Rights” the “Waiver of read, form that “I willing am to make a statement and answer questions.” Hartley sentence, crossed out the initialed the deletion, signed Rights” the “Waiver of form. attempt No interrogate was made to Hartley question or to his clear assertion of the to remain silent.

Hartley fingerprinted was then and photographed. There was no further Hartley communication with until the statement by Agent Frieberg at 10:43a.m. Accordingly, indisputable it is that the conduct of the law enforcement officials from the time Hartley’s arrest until 10:43 scrupulously a.m. honored Hart- ley’s right to remain silent.

I majority concur with the that the critical event in this case Agent Frieberg’s “Terrence, statement at 10:43 a.m.: I am Special Agent Frieberg and I am from City, Atlantic New Jersey, and I you why think I up know am here. IAnd would you like to reconsider you and now is the time if going are to make a statement. Now is the time to do it.” awaiting 2While confined in the Jail se trial, defendant County filed pro motions to evidence and to suppress compel affidavit used to inspection obtain a search warrant for his apartment. opinion that the FBI majority The makes much of fact necessity transporting agents concerned about were magistrate arraignment impetus Hartley a for and that to it,” from is the to do stemmed phrase, for the “Now time running they out them and agents’ that time was on concern transport Hartley promptly to to the would have to leave urgency appear This to be sense would federal court. Frieberg’s to overemphasized by majority since comment a.m., Hartley Hartley interrogation his made at 10:43 Hartley transported for p.m., 12:57 was not continued until p.m., approximately 1:30 about two hours until arraignment interrogation commenced. forty-five minutes after the Agent Frieberg’s testimony that he had received instructions delay,” transport Hartley arraignment “without ante at for 1:00 telephone Agent Robley to a call to at about referred interrogation begun. p.m., long after the had Frieberg’s constituted majority The concludes that statement The Hartley’s right to silent. conduct inconsistent with remain unimpressed portion of the statement majority is with that rights— reacknowledges Hartley’s fifth-amendment plainly you you I now is the time “And like to reconsider and would if concludes without going are to make a statement’ —and rights, Hartley’s subsequent reading of the Miranda a third City Atlantic must be to the FBI and confessions suppressed.

II it affords holding its on the basis that majority defends “bright guide rule line” which law-enforcement officials ma- during interrogation. Whether the their custodial conduct requires holding function claimed it brief jority serves the applicable post-Miranda and the decisions review of Miranda safeguards. to “second-level” Miranda Miranda, interrogation, prerequisite to custodial Under as rights. his These police must inform the accused of basic the 308

rights right silent, are the to remain accompanied by the warning statement can and will against be used the court; accused in right lawyer to consult with a and to have lawyer present during interrogation; right and the to lawyer have a appointed represent to the accused if he is Arizona, indigent. Miranda v. 436, 384 U.S. 467-73, 86 S.Ct. 1602, 1624-27, 694, 16 L.Ed.2d (1966). Although 720-23 Court emphasized interrogation must if cease the accused invokes either right his to remain right silent or his counsel, to confer id. at 473-74, with S.Ct. 1627-28, 86 at 16 L.Ed. 2d at 723, subsequent decisions have differentiated ^be tween the required conduct of law-enforcement officials with respect to the invocation of rights. these two right

A. The to counsel. Arizona, Edwards v. In 477, U.S. 451 101 S.Ct. 1880, 378, denied, reh’g 973, U.S. 101 S.Ct. 3128, L.Ed.2d (1981), Court, emphasizing its belief that “addi- safeguards tional necessary are when the accused asks for counsel,” adopted per se rule that once an accused invokes his counsel, law-enforcement officials subject cannot him interrogation to further until counsel available, has been made “unless the accused himself initiates communication, further exchanges, or conversations with Id. police.” 484-85, 1884, S.Ct. 68 L.Ed.2d at 386. This Court applied has per se rule of Edwards in several cases. See State v. Kennedy, (1984); 97 N.J. Wright, State v. 97 N.J. 122-23, (1984); State v. McCloskey, 125-26 90 N.J. 25-28 (1982).

However, Edwards significant has left questions unsettled regarding implementation. its Oregon Bradshaw, 103 (1983), L.Ed.2d 405 the Supreme sharply Court was divided defendant, as to whether the who counsel, had invoked satisfied the Edwards test of initiating further communication inquired when he of a officer, “Well, going what is happen to me now?” Four

309 defendant’s comment as of the Court viewed the members nothing his “to out where the reflecting more than desire find him,” going take rather than a desire for a police were to 1055, investigation. the Id. at generalized discussion about (Marshall, J., dissenting). at 419 Four L.Ed.2d S.Ct. at question found the of the Court defendant’s members himself test of Edwards that the accused initiate satisfied the 1044-46, 103 dialogue police. the Id. at S.Ct. at further with Powell, concurring in 2834-35, 412-13.3 77 L.Ed.2d at Justice Court, two-step analysis of criticized the judgment the the dissent, majority the which distin- applied by both the and the accused guished the initiation communication between view, In the more of the waiver. his and the voluntariness the is appropriate inquiry whether or not eventual waiver is 1050-51, intelligent, at knowing, voluntary. Id. S.Ct. 2837-38, 77 at 415-16. at right

B. to remain silent. The 46 L.Ed.2d Michigan Mosley, S.Ct. (1975), admissibility of a confes- the Court considered the right his to previously had by suspect sion who invoked made open left acknowledged The that Miranda remain silent. Court may officials resume question whether law-enforcement right to person custody invokes interrogation when a circumstances, if any, a does under silence: “It not state what permissible.” questioning Id. resumption suggestion rejected 46 L.Ed.2d at 320. Court right silence creates an absolute that the invocation of the to subsequent interrogation: to bar against taking aor perma- statements voluntary blanket [A] prohibition interrogation, regardless circumstances, nent from further immunity safeguards to into irrational obstacles the Miranda wholly would transform legitimate investigative of an activity, opportunity deprive suspects intelligent of their interests. informed and assessments make ^[********] Kamisar, majority 1, at note 163-69.

3For see supra a critique opinion, A reasonable and faithful of the Miranda rest on must interpretation opinion the intention of the Court that case effective means ... “fully adopt of his of silence and to person assure that the exercise of the notify honored____” safeguard will be The critical identified scrupulously passage “right Through questioning.” at issue is a to cut off person’s questioning exercise of his to terminate he can control the at option time which questioning subjects interroga- the occurs, discussed, and the duration the tion. The that law enforcement requirement authorities must respect per- exercise of son’s that counteracts the option coercive of the custodial pressures setting. We the therefore conclude that of statements obtained admissibility the after has to person custody decided remain silent under depends “right questioning” on to whether his cut off honored.” [Id. “scrupulously (citations omitted).] S. Ct. at at 96 L.Ed.2á 102-104, 46 at 320-21 Mosley the the Court held that statement obtained from interrogation the defendant after the second was admissible at police his trial because the had “scrupulously honored” the right questioning. defendant’s to cut off The Court noted that police immediately interrogation ceased the initial when the right silent, accused invoked his they attempted to remain that interrogation no further significant period until a of time had elapsed and warnings administered, fresh Miranda had been they and that limited the interrogation second to a different 105-106, 327-328, crime. Id. at at 96 46 S.Ct. L.Ed.2d at 322. court, At least one relying state on state constitutional grounds, rejected rationale, has the Mosley holding that an once silent, has right accused asserted his remain police interroga to tion must cease and People cannot be resumed. Pettingill, 21 (1978); Cal.3d Cal.Rptr. 578 P.2d cf. Mosley, Michigan 116-17, 120-21, 332-33, 334-35, (Brennan, J., dissenting) L.Ed.2d at 329-32 (suggesting that adopt states as a matter of state the rule law that right silence, once the accused has invoked his to no interrogation permitted further is present). unless counsel is sharply Several commentators have criticized the distinction drawn between an right accused who invokes the to silence and right one who invokes the to counsel: If it coercive —if it is inconsistent inherently with Miranda —to renew interrogation right after a has invoked his suspect to I think it is counsel, wrong right for the if to do so equally has asserted his to suspect average procedural person no that different remain The has idea silent. (or triggered by saying lawyer” safeguards “I want “I want to see a don’t are say say anything lawyer”) I see rather “I don’t to until than want anything” (or you.”). [Kamisar, "The and “I don’t want to talk to Edwards Away,” and the Taketh 5 The Bradshaw Court Giveth Court Cases: 1982-83, 153, Developments (1984).] and Court: Trends Stone, Court,” Burger See “The Miranda Doctrine (1977). Sup.Ct.Rev. 136-37 majority

If the case is to establish a objective right “bright suspects rule as to who to remain line” invoke silent, clearer in the a much rule than one announced opinion one eliminates the distinction between the would be right fifth remain silent and the assertion of the amendment dis- majority, to counsel. The without sixth amendment the distinction between Edwards cussing validity of reinterrogation Mosley, Mosley principle is not follows the silent,4 remain following an assertion of the barred per se rule that after adopts an has simultaneously accused 4 agree majority’s Mosley I the determination follow rather than with to interrogation prohibiting adopt, grounds, on a rule unless state constitutional willing- presence voluntarily or the accused indicates a in the of counsel after Concededly, request a to the distinction between ness make a statement. However, right is narrow. it is counsel and an assertion to remain silent emphatic probably request more a for counsel a more and fair to construe as police interrogation questions. permanent rejection to than a refusal answer they recognize suspects may appropriate will be uncertain whether It is to by police. by cooperation or with the serve their own interests better silence case, may eager appellant to the that he In this have been communicate fact majority’s directly responsible adoption of the was not for the homicides. The inculpatory Mosley public permitting state- rule indicates that interest custody justify by persons to renewed restrained ments is sufficient but suspects initially by officials with who have communication law-enforcement proper approach. right asserted their to remain silent. I believe this to be However, by majority accompanied by adoption should a clear its be by warning inculpatory to enforcement officials that statements made law asserting right be if the accused after to remain silent will inadmissible by pressure. rights accused’s have been overborne direct or indirect majority's per requiring mandatory rewarning on a formalistic se rule focuses my adequately emphasize procedure view not substantive does required an accused has asserted his conduct of law enforcement officials after right to remain silent. See at 270-272. infra

312 silence, to asserted his law-enforcement officials can interrogate him him neither nor his ask reconsider until Miranda warnings remain silent new been have adminis- 256, tered. Ante 261. and post-Mosley decisions that address the pre- issue,

Most however, fresh Miranda warnings do not insist on prereq as a Solem, reinterrogation. See Stumes v. 317, uisite to 752 F.2d Cir.) (8th (“[W]e 321 believe that aware of Stumes was Miranda rights voluntarily chose not to exercise them. To require to reissue Miranda police rights under these cir — purpose.”), denied, cumstances real cert. would serve no -, U.S. 105 S.Ct. 85 L.Ed.2d 502 2145, (1985); Jarrell v. Balkcom, (“We 1242, 735 F.2d 1254 conclude that no violation petitioner’s rights occurred failure reissue the Miranda warnings.”), denied, (11th reh’g 740 979 F.2d Cir. — 1984), denied, U.S.-, and cert. 2331, 105 S.Ct. 85 L.Ed. Hackley, United States v. (1985); (D.C.Cir. 2d 848 636 F. 2d 493 1980) (third Miranda warnings set of required not and state ment two warnings admissible; made hours after last held dissenting opinion colloquy with reinterroga views accused as Tard, tion); F.Supp. 1341, Brown (D.N.J.1982) 1349 (“Miranda require does not warnings fresh set of repeated each time the interrogation resume after an States, see also interruption.”); Miller United 396 F.2d (8th Cir.1968) (rewarning required interroga each time renewed; pre-Mosley), process denied, tion cert. L.Ed.2d v. Kinsey, (1969); United States (E.D.Pa.1972) (Miranda

352 F.Supp. warnings do stale; pr Melvin, e-Mosley); State v. not become 65 N.J. (1974) (no repetition warnings required; pre-Mosley); Magee, State v. 52 N.J. 352, (1968) (no repeti 374 required tion Miranda warnings prior reinterrogation; to pre-Mosley), denied, cert. 1097, 891, U.S. 393 89 21 S.Ct. L.Ed. Jakakas, (1969). Contra States 2d 789 F.Supp. United v. 423 564, (E.D.N.Y.1976); People Ferro, v. 316, 568-69 N.Y.2d 63 — 13, (1984), 472 denied, N.E.2d 482 237 cert. U.S. N.Y.S.2d

313 People v. (1985); -, 2700, L.Ed.2d 86 717 S.Ct. cf. 259, 265, 455, 460, 71 Ill.App.3d Ill.Dec. 450 N.E.2d Young, (App.Ct.1983) (Mosley interpreted require to fresh that he understood warnings, defendant’s confirmation but rule); State v. McClos him satisfies rights previously read to (Mosley require read to new key, supra, 90 N.J. at 30 n. 3 interrogation). resumption of warnings prior to C. Waiver. may his suspect that a waive principle

The is well settled counsel, and that a rights to remain silent and to constitutional rights will subsequent to the waiver of those made confession knowing, the waiver is The test is whether be admissible. Zerbst, U.S. Johnson voluntary. intelligent, and (1938). 1019, 1023, The 82 L.Ed. 58 S.Ct. question of waiver express explicit. or waiver need not be facts and particular of the determined on the basis is to be case, experi- including background, each circumstances of Butler, of the accused. North Carolina ence, and conduct 60 1755, 1757-59, 369, 374-75, 99 S.Ct. consistently the rule (1979). Jersey has followed 292- 93 New necessary invariably not explicit statement of waiver is that “an finding the defendant waived support a 60 L.Ed. at 1758-59, 375-76, remain silent.” Id. supra, Kennedy, 97 N.J. 94; at 286. As we see State v. 293- Kremens, (1968): 52 N.J. State v. stated is the is sufficient. The test manifestation of a desire to waive clear Any showing knowing The criterion is of a shibboleth. of a not the utterance intent, language that articulation and the a combination of but solely employed (citations omitted).] surrounding at 311 [Id. facts and circumstances. Ill appreciate the narrowness Preliminarily, in order to case, significant note that the it is majority’s focus court, hearing, expressly determined lengthy trial after knowing to silence Hartley’s waiver of voluntary: intelligently I am satisfied doubt that did any this defendant beyond under- rights. right right

stand his He had to remain He silent. had a to counsel * * *. I that am satisfied knew he did that not have to make a Hartley statement. He took that once. There is no already reason he position why * * * could not maintain that position. thought I think he it in his was best interest to do what he did. I think he did knowingly willingly. it and voluntarily I do not believe that there was any coercion or threats or force or any any conduct on the improper part authorities. I do not that Mr. find, fact, will was overborne Hartley’s conduct on by any of the State. part Concededly, Agent Frieberg’s phrase, use of the “Now is the it,” time to encouraging do Hartley to reconsider his refusal statement, to make a could attempt have been found to be an pressure exert Hartley on and therefore inconsistent with a voluntary court, however, waiver. The trial rejected argu- that ment and found fact Hartley’s as a that waiver knowing, Zerbst, intelligent, See voluntary. supra, Johnson at 58 S. Ct. 82 L.Ed. at 1466. The trial court’s issue, factual on the amply supported determination waiver by case, record this should us. State v. not be disturbed Johnson, (1964).5 N.J. 162-63 majority

The declines to reach the issue on waiver the basis following reasoning: holding our [G]iven failure to honor a scrupulously previously-invoked right incriminating to silence resultant unconstitutionally compelled any state- interrogation, ment made in to custodial can response there be no question waiver. In the instant context the waiver issue could not arise until after the right exercise of the had asserted been honored at a minimum, scrupulously by, giving warnings. of fresh that an asserted requirement guarded has been honored in this scrupulously state in order to carefully ensure privilege that full to exercise the is opportunity permitted. Because in this case the was not honored and defendant’s “federal” statement must therefore be deemed to have been there is compelled, unconstitutionally simply (citations omitted).] no waiver on issue at 261 [Ante posed appeal. agrees Handler, 5Justice in his separate the trial court's opinion, deter- mination as to the voluntariness statement Hartley’s sustainable "clearly in the record.” Ante at 303. Although majority opinion consider refuses to the waiver issue, analysis in case careful demonstrates that the crite- right recognizing a the to silence neces- ria valid waiver right sarily encompass the that determine whether the factors The Court scrupulously Mosley to silence has been honored. pains explain “scrupulously it the took to what meant safeguard in the honored” standard. “The critical identified person’s right questioning.” is a off passage at issue to cut 102-104, at Michigan Mosley, supra, 423 US. at 96 S.Ct. 325-327, This that suggests primary at 320-21. the 46 L.Ed. police inquiry required by is to determine whether the Mosley clear, they it communication with the ac- make when resume cused, right emphasis still in force. The that his silence is simply knowledge on of the substance of the does focus by rereading that a right objective be served would —an acknowledgement right that rights on an —but to honored if was previously asserted would continue be that the accused’s wish. knowing, voluntary. intelligent

A must and valid waiver be Zerbst, supra, 304 U.S. S.Ct. at Johnson v. Hartley validly It is that could not L.Ed. 1466. self-evident right did not know both the nature his to silence if he waive right privilege to it that his to continue assert was The court in this case effect at the instant of waiver. trial been a waiver to have satisfied: found these conditions for valid intelligently under- that this defendant did I am satisfied doubt beyond any right right rights. He had a counsel He had a to remain silent. stand * * a I knew he did not have to make *. satisfied that am Hartley no he There is reason why He took that once. already statement. position could not maintain that position. stated, recognizing validity of Hart- As the criteria for requirement of ley’s appear would subsume waiver right to silent must be “scru- Mosley that an accused’s remain majority’s refusal to consider pulously honored.” The Frieberg’s crucial ignores the fact that issue this case waiver rapid Hartley’s response succession. occurred statement lapse significant of time This is not a case where there alleged between the respect failure to right the defendant’s remain silent Here, and the challenged defendant’s waiver. alleged conduct and the waiver together. occurred majority’s rejection of the trial court’s finding factual Hartley’s valid, waiver was on the Frieberg’s basis that state- ment made a moment earlier violated the Mosley test, is an unduly of Mosley. application technical point This was the urged by Justice Powell in his concurring opinion in Oregon v. Bradshaw, supra: Justice Marshall would hold that there can be no waiver of the to counsel dialogue subject unless the accused himself “about the opens matter of the investigation.” criminal He states that “unless the accused himself initiates further communication with the a valid police, waiver of the to counsel cannot be established.” Under this view of the a court never two-step analysis,

gets to the second relevant step facts and subsequent circumstances —however to a waiver —unless the may accused was the first to and to speak say * ** right thing. concern is that a My could confound the two-step analysis confusion evident * * * differing from the views other courts and expressed by indeed evidenced conflicting reading the by of Edwards Justices Marshall by and Rehnquist. The Zerbst standard is one that is understood and followed. It also widely Fragmenting with common sense. comports the standard into a novel two-step justice followed analysis would frustrate literally as well as common —if —often engage sense. Courts should in more substantive than “who said inquiries holding what first.” The of the Court in Edwards cannot in view my fairly reduced to this. agreeing We are right unanimous in in this as in case, that “the Edwards, rights requiring counsel of those [is] prime the example of special protection knowing intelligent the agree and waiver standard.” We also that once the right safeguards, accused has counsel this requested additional requires partic- against interrogation. coercive form of ularly custodial But the of question right whether a has waived this suspect counsel is important one uniquely judgment and must fact, and should be left to usually the of the trial court that hearing has had the assessing weight benefit of the evidence and the and 462 credibility U.S. at 103 testimony. [Id. 1050-51, S.Ct. at 2837-38, (citations omitted).] L.Ed.2d at 415-16 White, Justice concurring in Michigan v. Mosley, agreed with Justice Powell’s view that the critical issue should be the validity of the waiver: majority I that in the final suspect the analysis will voluntariness as the adopt judge right standard which to the waiver of the to silence aby properly informed I defendant. think the Court should so now. at say [432

S.CL L.Ed.2A 324.] Jackson, U.S.-,-, majority Michigan The cites (1986), 1404, 1410, authority as waiver in this case. In rejecting consideration the Jackson, however, right right the to counsel the asserted was test recognition context not the and of the waiver that would requirement that police compliance officer’s with the Edward’s by the The be initiated accused. dif renewed communication is the in the to silence context that when chal ference waiver, simultaneously lenged police occurs conduct with depends upon police have validity waiver whether Thus, there no scrupulously honored the to silence. in this validity on the of the waiver case. reason not focus view, alleged to violate the my when the conduct in time Mosley test of coalesces with “scrupulously honored” logical waiver, legal impediment is no or to a alleged there validity of the trial of the waiver. court’s consideration knowingly and not found that defendant court could have it not also voluntarily right to remain silent had waived his consist- of law enforcement officials was found that the conduct right.6 Accordingly, I assertion of that ent the continued with the factual uphold in this and would reach the waiver issue case of the trial court. determination standard, I However, Mosley would even on basis “scrupulous- Hartley’s right to silent was remain conclude acknowledge a opinion does ly majority honored.” The decisions, pre- post-Mosley, have both number of interro- distinction between renewed recognized important that an officials gation request by law enforcement These right silent. courts his to remain accused “reconsider” interro- acknowledged request, a unlike renewed that such have availability of the gation, with the continued is not inconsistent right to remain silent. do that there was coercion any "I not believe 6Indeed, the trial court found: the conduct on the or any part or threats or force improper any

authorities.” 318 There is a critical distinction on between, the one an for the hand, inquiry clarifying invoking right limited whether is his purpose defendant changed regarding remain silent or has an his mind earlier assertion right questioning eliciting incriminating on the other and, hand, aimed concerning subject statements on which the defendant has invoked very his

right. (9th Cir.1980).] [United States F.2d Lopez-Diaz, 661, Smith, 1011, (4th See United States v. 608 F .2d 1013-14 Cir.1979); Davis, (9th 1110, United States v. 527 F.2d Cir.1975), denied, cert. US. (1976); Collins, (2d Cir.), United States v. 462 F.2d denied, (1972).

cert. 409 U.S. 93 S.Ct. 34 L.Ed.2d 254 renewed, Mosley permit was intended to noncoercive commu nication between suspects law-enforcement officials and who initially have elected to way remain silent. The least intrusive in which such communication can request be resumed is a the suspect prior that right reconsider his assertion of the request clearly remain silent. Such a is more consistent with suspect’s right resumption asserted than the of direct interrogation concerning investigation. the crime under When request conveyed language reconsideration reacknowledgement suspect’s constitutes clear of the continu ing right silent, requirement to remain that new Miranda warnings precede request such a would be redundant. A request suspect right that the reconsider his to remain silent presumes the availability right. continued of that See United Smith, supra, States v. 608 F.2d 1014. previously, expressed

As stated Mosley Court the “scru- pulously right honored” test in terms of a defendant’s to cut off questioning. standard, Consistent with it seem would reacknowledgment evident that a right to remain silent is as effective satisfying a means of Mosley test as is a rereading warnings. verbatim of the Miranda Agent plainly Frieberg reacknowledged to Hartley the contin- availability ued request to remain silent. His Hartley he was that itself acknowledges “reconsider”—which that the to remain silent continued in he then effect—and Hartley, advised you going “Now is the time are to make a if phrase statement. Now is the time you to do it.” The “if are going only thing: to make a statement” could mean one that it Hartley’s choice to talk or not to talk. Agent Frieberg’s the face of Hartley statement to reacknowledged silent, right the existence of his to remain it is majority’s difficult to understand the insistence on fresh warn- ings Surely, in this majority’s holding case. that new warnings Hartley should have been administered to does not Hartley stem from a concern that did not know that he had the right to remain silent. He had been told that on two occasions already morning. recently same As as 9:15 a.m.—about an Agent Frieberg’s hour and a half before Hartley statement — had asserted his silence unmistakable terms: “I time,” don’t I believe want to make a statement at this and the agents FBI respect demonstrated their by for that decision directing Hartley pertinent language to delete the from the Moreover, specifically waiver form. the trial court found as a Hartley fact that “knew that he did not have to make a statement.”

Significantly, repetition several courts have observed that the warnings importance of the Miranda tends to reduce their to a suspect: police “The suspect rights more times inform a of his repeated rights— the face of his invocation of one of those to remain silent—the clearer it becomes that the Hernandez, they say.” must not mean what United States v. (5th Cir.1978). expressed F.2d This has Court reservations, majority opinion ignores, similar which the about “ requiring repeated warnings: adopt ‘To an automat second-warning system ic perfunctory would be to add a ritual police procedures providing meaningful rather than set ” procedural safeguards envisioned Miranda.’ State v. Magee, supra, Hill, (quoting People 52 N.J. at 374 39 Ill. 2d 125, 132, 367, 3761, denied, 2dN.E. cert. (1968)). L.Ed.2d 1394 case, Agent

Under the Frieberg’s circumstances of this Hartley’s reacknowledgement right of remain silent to was as informing Hartley effective a means of continued exist- right yet ence of his to silence as have would been another Rights” of verbatim recitation the same “Advice of form that agents Hartley prior the FBI read to had on two occasions that day. Hartley’s I would that to right question- conclude cut off ing “scrupulously by express honored” of virtue the reack- nowledgement right incorporated Agent of Frieberg’s that upon statement. Based that conclusion and the trial court’s finding Hartley’s right factual that his waiver of to silence was knowing, intelligent, voluntary, and I would affirm the trial Appellate court’s and the Division’s determination that Hart- ley’s FBI subsequent confession to the and his confession to the City police Atlantic were admissible.

IV stated, disagree strongly requirement As I that the of fresh case, warnings any application Miranda has this since Hart- ley was of rights well aware his Miranda understood that silent disagree remain was still in effect. I also “bright that this clarify line” rule will already serve complex area of the law for law-enforcement officials. The rule inquiry does not suspect’s end the as to whether Mi- rights randa been “scrupulously have honored.” With or warnings, without fresh Miranda the facts and circumstances every interrogation custodial carefully must be examined pragmatically suspect’s right to determine whether a to cut questioning protected. off has been All rule will do is serve as suppressing a basis for preceded confessions not by mandatory rewarning. Once it been has established that warnings administered, fresh were the trial court must proceed to if suspect's rights determine “scrupulously were honored.” rule, “bright

This line” intended the majority to constitute compliance a minimum standard for Mosley, may with well be interpreted by law-enforcement simplistic prereq- officials as a reinterrogation uisite to the suspects previously who have asserted the to silence. interpretation Such an would divert the focus of away from principles ultimately guide should the conduct of those law enforcement officials who responsibility have for custodial in- Moreover, terrogations. because the rule compel will the warn- ings suspects to be readministered to already who have been rights once, read their Miranda at least atmosphere an meaningless inevitably accompany ritual will repeated in- rights cantation of the same set of suspect to the same by the police ritual, same officer. suggest, Such I “scrupu- will not lously suspect’s rights honor” a Miranda but will breed disre- spect for them. suspect

I “bright that this generate exaggerat- line” rule will police testimony, ed perfunctory warnings, multiplicity and a of exceptions. I believe it neither advances the constitutional rights of criminal important defendants nor the objectives of law enforcement.

Y Although, my record, based on view of the Hartley’s confes- sion to FBI evidence, should be admissible I feel con- majority’s later, strained to comment on the suppression of the City police. rewarned confession to the majority Atlantic The suggests approaches question two to the admissibility approach second confession. The first “reaches the conclu- process produced sion that the the second statement was inextricably so entwined interrogation procedure with the first part procedure.” as to be of that same By Ante at 279. treating the two confessions as the result of an indivisible procedure interrogation, majority excludes the second precisely confession for the same reasons it excludes the first. analysis, I would hold the second confession On this admissible first, viz., I precisely the same reasons would the that both voluntary to remain silent confessions were waivers by scrupulously honored the custodial authorities. majority analyzes “separate

The also the two confessions as distinct,” required and is thus to invoke the “fruit of the second, rewarned, poisonous tree” doctrine to exclude the con conclusion, reaching majori fession from evidence. ty attempts Supreme to reconcile it with the Court’s decision Elstad, Oregon 470 U.S. 105 S.Ct. 84 L.Ed.2d 222 (1985). case, police gone In that officers had to the defendant’s purpose arresting suspect home for the him as a in a officer, burglary. administering An residential before Mi warnings, told Elstad that he believed in randa Elstad was responded volved in the crime. Elstad to the officers’ com words, “Yes, ments I was there.” He then taken with gave to the local sheriff’s office and a full confession after being warnings. Oregon administered Miranda Court of Appeals held the confession to be inadmissible. The reversed, noting the failure Court law-enforcement warnings officials to administer Miranda did not constitute a constitutional “The failure of the violation. administer warnings does not mean that the statements received * * at-, actually have been coerced Id. 1294, 84 L.Ed.2d at 233. police initially

Since the failure of the to administer Miranda warnings by was found the Court not to be inconsistent with admission, the voluntariness of Elstad’s first the Court conclud- subsequent following ed that the confession the full Miranda warnings was admissible: administering If errors are made law enforcement officers in the by prophylac-

tic Miranda should not breed the same irremediable conse- procedures, they infringement as of the Fifth Amendment itself. It is an quences of Miranda to hold that a unwarranted extension failure to administer simple warnings, the actual coercion or other circumstances unaccompanied by any calculated to undermine the to exercise his free will so taints suspect’s ability investigatory the that a and informed waiver is process subsequent voluntary Though ineffective some indeterminate period. Miranda the requires unwarned admission must be the suppressed, admissibility any subsequent knowingly statement should turn in these circumstances on whether it is solely made. S.Ct. at voluntarily [/A at-, 84 L.Ed.2d at 232.] majority today holds although the failure of the police in prophylactic Elstad administer “the proce- Miranda dures” did not render Elstad’s involuntary, first statement by failure the FBI in this case to readminister “prophylactic procedures,” Hartley after already had received them twice, necessarily Hartley’s caused first confession to be invol- untary. at Ante 277-278. The Court reaches this conclu- law, sion as a matter of disregarding finding by the trial court in Hartley’s this case that voluntary confession was majority’s not coerced. The appears conclusion to be inconsist- ent with the decision in Elstad.

There is a obtained, tenable distinction between a confession Elstad, voluntarily preceded as by but not Miranda warn ings, and a by by confession obtained coercion or blatantly disregarding suspect’s right asserted to counsel or to remain Elstad, silent. In attempt distinguish an majority char acterizes this case as “concerning suspect[] one whose [a] invocation of to remain silent and to have counsel [his] present flatly ignored were police subjected while [him] interrogation.” (quoting continued Ante at Oregon Elstad, —, supra, U.S. 105 S.Ct. at 1296 n. 3) added). 84 L.Ed.2d (emphasis doing, at 234-35 n. In so majority acknowledge does not by the distinction drawn consequences flowing Elstad Court “between the direct from coercion of a physical confession or violence other deliberate means suspect’s calculated to break the will and the uncertain consequences ‘guilty given of disclosure of a freely secret’ * * response question to an unwarned but noncoercive Elstad, at-, Oregon supra, Elstad, 2d at simply reaffirming L.Ed. 234. the Court was prophylactic the distinction between violations of rules and underlying violations of against compul constitutional 324 at-, 1, 1292, 105 S. Id. Ct.

sory at 1292 n. self-incrimination. Quarles, New York v. 1293, 1, 231, 232; 84 L.Ed.2d at 230 n. 649, 5, 2626, 2631, 5,n. 104 S.Ct. L.Ed.2d 81 U.S. 467 655 n. Tucker, 433, 440-48, (1984); Michigan 417 U.S. 550, 556 n. (1974); Miranda 2357, 2361-66, 182, 190-95 S.Ct. Arizona, supra, 384 at at 16 L.Ed.2d of Elstad is that Hence, reading realistic at 713. most “[t]he simply apply poisonous ‘fruit tree’ doctrine does not the ‘fruit’ is a second confes Miranda violations —whether Kamisar, physical “Heavy evidence.” Blow sion or a witness or Journal, Decision,” The National Law Delivered Miranda Wainwright, 770 2d 22; see also Martin v. 2,1985, Sept. F. S— (Mosley Cir.1985) violations, (11th actual coer absent Miranda, cion, requirements of but violate the “technical [do] itself.”); not violate the Fifth Amendment “The Court, Cases,” Harv.L.Rev. Leading 142- Term — actual, Elstad courts must (1985) (under presumed, find not violation Miranda original obtaining coercion in statement evidence). Although the in order to admission of derivative bar as one of constitutional majority denominates the violation from Elstad that the “fruit ante magnitude, it follows Mosley apply poisonous tree” doctrine does not to a simply give failure to that violation where violation Miranda prophylactic warnings a third time. case, Hartley’s finding there is no confession was

coerced, remain majority’s and the conclusion that his objective on “scrupulously honored” is not based silent was self-imposed solely on the new findings, is a result based but requirement of fresh Miranda rewarnings. majority’s the third Miranda give warning to holding that the failure to City Hartley subsequent confession to the Atlantic taints Elstad holding in police is irreconcilable with the the first give warning did not bar the failure to confession in that case. second stated, judgment of I would affirm the For the reasons conviction.

Case Details

Case Name: State v. Hartley

Court Name: Supreme Court of New Jersey

Date Published: Jul 3, 1986

Citation: 511 A.2d 80

Court Abbreviation: N.J.