Michigan v. Mosley

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.

The Court focuses on the correct passage from Miranda v. Arizona, 384 U. S. 436, 473-474 (1966) (footnote omitted):

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to *112 cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”

But the process of eroding Miranda rights, begun with Harris v. New York, 401 U. S. 222 (1971), continues with today’s holding that police may renew the questioning of a suspect who has once exercised his right to remain silent, provided the suspect’s right to cut off questioning has been “scrupulously honored.” Today’s distortion of Miranda’s constitutional principles can be viewed only as yet another step in the erosion and, I suppose, ultimate overruling of Miranda’s enforcement of the privilege against self-incrimination.

The Miranda guidelines were necessitated by the inherently coercive nature of in-custody questioning. As in Escobedo v. Illinois, 378 U. S. 478 (1964), “we sought a protective device to dispel the compelling atmosphere of the interrogation.” 384 U. S., at 465 . We “concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467 . 1 To assure safeguards that promised to dispel the “inherently compelling pressures” of in-custody interrogation, a prophylactic rule was fashioned to supplement the traditional determination of voluntariness on the facts of each case. Miranda held that any confession obtained when not preceded by the required warn *113 ings or an adequate substitute safeguard was per se inadmissible in evidence. Id., at 468-469, 479 . Satisfaction of this prophylactic rule, therefore, was necessary, though not sufficient, for the admission of a confession. Certiorari was expressly granted in Miranda “to give concrete constitutional guidelines for law enforcement agencies and courts to follow,” id., at 441-442 , that is, clear, objective standards that might be applied to avoid the vagaries of the traditional voluntariness test.

The task that confronts the Court in this case is to satisfy the Miranda approach by establishing “concrete constitutional guidelines” governing the resumption of questioning a suspect who, while in custody, has once clearly and unequivocally “indicate [d] . . . that he wishes to remain silent . . . .” As the Court today continues to recognize, under Miranda , the cost of assuring voluntariness by procedural tests, independent of any actual inquiry into voluntariness, is that some voluntary statements will be excluded. Ante, at 99-100. Thus the consideration in the task confronting the Court is not whether voluntary statements will be excluded, but whether the procedures approved will be sufficient to assure with reasonable certainty that a confession is not obtained under the influence of the compulsion inherent, in interrogation and detention. The procedures approved by the Court today fail to provide that assurance.

We observed in Miranda : “Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion *114 of a voluntary relinquishment of the privilege.” 384 U. S., at 476 . And, as that portion of Miranda which the majority finds controlling observed, “the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” Id., at 474 . Thus, as to statements which are the product of renewed questioning, Miranda established a virtually irrebuttable presumption of compulsion, see id., at 474 n. 44, and that presumption stands strongest where, as in this case, a suspect, having initially determined to remain silent, is subsequently brought to confess his crime. Only by adequate procedural safeguards could the presumption be rebutted.

In formulating its procedural safeguard, the Court skirts the problem of compulsion and thereby fails to join issue with the dictates of Miranda . The language which the Court finds controlling in this ease teaches that renewed questioning itself is part of the process which invariably operates to overcome the will of a suspect. That teaching is embodied in the form of a proscription on any further questioning once the suspect has exercised his right to remain silent. Today’s decision uncritically abandons that teaching. The Court assumes, contrary to the controlling language, that “scrupulously honoring” an initial exercise of the right to remain silent preserves the efficaciousness of initial and future warnings despite the fact that the suspect has once been subjected to interrogation and then has been detained for a lengthy period of time.

Observing that the suspect can control the circumstances of interrogation “[tjhrough the exercise of his option to terminate questioning,” the Court concludes “that the admissibility of statements obtained after the person in custody has decided to remain silent depends ... *115 on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” Ante, at 103, 104. But scrupulously honoring exercises of the right to cut off questioning is only meaningful insofar as the suspect’s will to exercise that right remains wholly unfettered. The Court’s formulation thus assumes the very matter at issue here: whether renewed questioning following a lengthy period of detention acts to overbear the suspect’s will, irrespective of giving the Miranda warnings a second time (and scrupulously honoring them), thereby rendering inconsequential any failure to exercise the right to remain silent. For the Court it is enough conclusorily to assert that “[t]he subsequent questioning did not undercut Mosley’s previous decision not to answer Detective Cowie’s inquiries.” Ante, at 105. Under Miranda , however, Mosley’s failure to exercise the right upon renewed questioning is presumptively the consequence of an overbearing in which detention and that subsequent questioning played central roles.

I agree that Miranda is not to be read, on the one hand, to impose an absolute ban on resumption of questioning “at any time or place on any subject,” ante, at 102, or on the other hand, “to permit a resumption of interrogation after a momentary respite,” ibid. But this surely cannot justify adoption of a vague and ineffective procedural standard that falls somewhere between those absurd extremes, for Miranda in flat and unambiguous terms requires that questioning “cease” when a suspect exercises the right to remain silent. Miranda’s terms, however, are not so uncompromising as to preclude the fashioning of guidelines to govern this case. Those guidelines must, of course, necessarily be sensitive to the reality that “[a]s a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investiga *116 tions, where there are often impartial observers to guard against intimidation or trickery.” 384 U. S., at 461 (footnote omitted).

The fashioning of guidelines for this case is an easy task. Adequate procedures are readily available. Michigan law requires that the suspect be arraigned before a judicial officer “without unnecessary delay,” 2 certainly not a burdensome requirement. Alternatively, a requirement that resumption of questioning should await appointment and arrival of counsel for the suspect would be an acceptable and readily satisfied precondition to resumption. 3 Miranda expressly held that “[t]he presence of counsel . . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self-incrimination].” Id., at 466 . The Court expediently bypasses this alternative in its search for circumstances where renewed questioning would be permissible. 4

Indeed, language in Miranda suggests that the *117 presence of counsel is the only appropriate alternative. In categorical language we held in Miranda : “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Id., at 473-474 . We then immediately observed:

“If an individual indicates his desire to remain silent but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements.” Id., at 474 n. 44 (emphasis added).

This was the only circumstance in which we at all suggested that questioning could be resumed, and even then, further questioning was not permissible in all such circumstances, for compulsion was still the presumption not easily dissipated. 5

*118 These procedures would be wholly consistent with the Court’s rejection of a “per se proscription of indefinite duration,” ante, at 102, a rejection to which I fully subscribe. Today’s decision, however, virtually empties Miranda of principle, for plainly the decision encourages police asked to cease interrogation to continue the suspect’s detention until the police station’s coercive atmosphere does its work and the suspect responds to resumed questioning. 6 Today’s rejection of that reality of life contrasts sharply with the Court’s acceptance only two years ago that “[i]n Miranda the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation.” Schneckloth v. Bustamonte, 412 U. S. 218, 247 (1973). I can only conclude that today’s decision signals rejection of Miranda’s basic premise.

My concern with the Court’s opinion does not end with its treatment of Miranda , but extends to its treatment of the facts in this case. The Court’s effort to have the Williams homicide appear as “an unrelated holdup murder,” ante, at 104, is patently unsuccessful. The anonymous tip received by Detective Cowie, conceded by the Court to be the sole basis for Mosley’s arrest, ante, at 97 n. 1, embraced both the robberies covered in Cowie’s in *119 terrogation and the robbery-murder of Williams, ante, at 98 n. 2, about which Detective Hill questioned Mosley. Thus, when Mosley was apprehended, Cowie suspected him of being involved in the Williams robbery-murder in addition to the robberies about which he tried to examine Mosley. On another matter, the Court treats the second interrogation as being “at another location,” ante, at 104. Yet the fact is that it was merely a different floor of the same building, ante, at 97-98. 7

I also find troubling the Court’s finding that Mosley never indicated that he did not want to discuss the robbery-murder, see ante, at 104-106. I cannot read Cowie’s testimony as the Court does. Cowie testified that Mosley *120 declined to answer “ ‘[a'Jnything about the robberies/” ante, at 105 n. 11. That can be read only against the background of the anonymous tip that implicated Mosley in the Williams incident. Read in that light, it may reasonably be inferred that Cowie understood “[ajnything” to include the Williams episode, since the anonymous tip embraced that episode. More than this, the Court’s reading of Cowie’s testimony is not even faithful to the standard it articulates here today. “Anything about the robberies” may more than reasonably be interpreted as comprehending the Williams murder which occurred during a robbery. To interpret Mosley’s alleged statement to the contrary, therefore, hardly honors “scrupulously” the suspect’s rights.

In light of today’s erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. See Oregon v. Hass, 420 U. S. 714, 719 (1975); 8 Lego v. Twomey, 404 U. S. 477, 489 (1972); Cooper v. California, 386 U. S. 58, 62 (1967). A decision particularly bearing upon the question of the adoption of Miranda as state law is Commonwealth v. Ware, 446 Pa. 52 , 284 A. 2d 700 (1971). There the Pennsylvania Supreme Court adopted an aspect of Miranda as state law. This Court on March 20, *121 1972, granted the Commonwealth’s petition for certiorari to review that decision. 405 U. S. 987 . A month later, however, the error of the grant having been made apparent, the Court vacated the order of March 20, “it appearing that the judgment below rests upon an adequate state ground.” 406 U. S. 910 . Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court. See, e. g., State v. Santiago, 53 Haw. 254 , 492 P. 2d 657 (1971) (rejecting Harris v. New York, 401 U.S. 222 (1971)); People v. Beavers, 393 Mich. 554 , 227 N. W. 2d 511 (1975), cert. denied, post, p. 878 (rejecting United States v. White, 401 U. S. 745 (1971)); State v. Johnson, 68 N. J. 349, 346 A. 2d 66 (1975) (rejecting Schneckloth v. Bustamonte, 412 U. S. 218 (1973)); Commonwealth v. Campana, 455 Pa. 622 , 314 A. 2d 854 , cert. denied, 417 U. S. 969 (1974) (adopting “same transaction or occurrence” view of Double Jeopardy Clause). I note that Michigan’s Constitution has its own counterpart to the privilege against self-incrimination. Mich. Const., Art. 1, § 17; see State v. Johnson, supra.

The Court said further:

“Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” 384 U. S., at 458 .

Mich. Comp. Laws §§ 764.13 , 764.26 (1970); Mich. Stat. Ann. §§28.871 (1), 28.885 (1972). Detective Cowie’s testimony indicated that a judge was available across the street from the police station in which Mosley was held from 2:15 p. m. until 4 p. m. or 4:30 p. m. App. 13. The actual interrogation of Mosley, however, covered only 15 or 20 minutes of this time. Id., at 14. The failure to comply with a simple state-law requirement in these circumstances is totally at odds with the holding that the police “scrupulously honored” Mosley’s rights.

In addition, a break in custody for a substantial period of time would permit — indeed it would require — law enforcement officers to give Miranda warnings a second time.

I do not mean to imply that counsel may be forced on a suspect who does not request an attorney. I suggest only that either arraignment or counsel must be provided before resumption of questioning to eliminate the coercive atmosphere of in-custody interrogation. The Court itself apparently proscribes resuming questioning until counsel is present if an accused has exercised the right to have an attorney present at questioning. Ante, at 101 n. 7.

The Court asserts that this language is not relevant to the present case, for “Mosley did not have an attorney present at the time he declined to answer Detective Cowie’s questions.” Ante, at 102 n. 8. The language, however, does not compel a reading that it is applicable only if counsel is present when the suspect initially exercises his right to remain silent. Even if it did, this would only indicate that Miranda placed even stiffer limits on the circumstances when questioning may be resumed than I suggest here. Moreover, since the concern in Miranda was with assuring the absence of compulsion upon renewed questioning, it makes little difference whether counsel is initially present. Thus, even if the language does not specifically address the situation where counsel is not initially present, it certainly contemplates that situation.

The Court also asserts that Miranda “directed that ‘the interrogation must cease until an attorney is present’ only ‘[i]f the individual states that he wants an attorney.’ ” Ante, at 104 n. 10 *118 (quoting 384 U. S., at 474 ). This is patently inaccurate. The language from the quoted portion of Miranda actually reads: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.”

I do not suggest that the Court’s opinion is to be read as permitting unreasonably lengthy detention without arraignment so long as any exercise of rights by a suspect is “scrupulously honored.” The question of whether there is some constitutional limitation on the length of time police may detain a suspect without arraignment, cf. Gerstein v. Pugh, 420 U. S. 103 (1975); Mallory v. United States, 354 U. S. 449 (1957); McNabb v. United States, 318 U. S. 332 (1943), is an open one and is not now before the Court.

See Westover v. United States, 384 U. S. 436, 494 (1966), where Westover confessed after being turned over to the FBI following questioning by local police. We said:

“Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning....

“We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station — in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege.” Id., at 496-497 .

It is no answer to say that the questioning was resumed by a second police officer. Surely Santobello v. New York, 404 U. S. 257, 262 (1971), requires that the case be decided as if it involved two interrogation sessions by a single law enforcement officer.

Although my Brother Marshall correctly argued in Hass, 420 U. S., at 728 (dissenting), that we should have remanded for the state court to clarify whether it was relying on state or federal law, such a disposition is not required here. In Hass the state court cited both federal and state authority; in this case Mosley’s counsel has conceded that the self-incrimination argument in the state court was based solely on the Fifth Amendment to the Federal Constitution. Tr. of Oral Arg. 44.