Arizona v. Roberson

Justice Kennedy,

with whom The Chief Justice joins, dissenting.

The majority frames the case as one in which we are asked to “craft an exception” to Edwards v. Arizona, 451 U. S. 477 (1981). Ante, at 677. The implication from this, it would seem, is that the burden of proof falls on those who say no constitutional or preventative purpose is served by prohibiting the police from asking a suspect, once he has requested counsel, if he chooses to waive that right in a new and independent investigation of a different crime. . But the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its' expansion. Our justification must be consistent with the practical realities of suspects’ rights and police investigations. With all respect, I suggest the majority does not have a convincing case. The majority’s rule is not necessary to protect the rights of suspects, and it will in many instances deprive our nationwide law enforcement network of a legitimate investigative technique now routinely used to resolve major crimes.

*689 When a suspect is in custody for even the most minor offense, his name and fingerprints are checked against master files. It is a frequent occurrence that the suspect is wanted for questioning with respect to crimes unrelated to the one for which he has been apprehended. The rule announced today will bar law enforcement officials, even those from some other city or other jurisdiction, from questioning a suspect about an unrelated matter if he is in custody and has requested counsel to assist in answering questions put to him about the crime for which he was arrested.

This is the first case in which we are asked to apply Edwards to separate and independent investigations. The statements deemed inadmissible in Edwards and in our later cases applying its doctrine were statements relating to the same investigation in which the right to counsel was invoked. See Connecticut v. Barrett, 479 U. S. 523 (1987); Smith v. Illinois, 469 U. S. 91 (1984); Solem v. Stumes, 465 U. S. 638 (1984); Oregon v. Bradshaw, 462 U. S. 1039 (1983); Wyrick v. Fields, 459 U. S. 42 (1982). The majority’s extension of the Edwards rule to separate and independent investigations is unwarranted.

The petitioner in Edwards , arrested on serious charges, first submitted to interrogation but then requested an attorney. Questions ceased for a while, but when two detectives came to the jail the next morning, a guard advised him that he must talk with them. The petitioner in Edwards waived his right to silence and implicated himself in the crime. We reversed the conviction, holding that an accused who expresses his desire to face further questioning with counsel present will not be subject to further interrogation until counsel is made available, unless the accused initiates the exchange himself.

Our ultimate concern in Edwards , and in the cases which follow it, is whether the suspect knows and understands his rights and is willing to waive them, and whether courts can be assured that coercion did not induce the waiver. That *690 concern does not dictate the result reached by the Court today, for the dangers present in Edwards and later cases are insubstantial here.

The rule in Edwards “was in effect a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was.” Oregon v. Bradshaw, supra, at 1044 (plurality opinion). Where the subsequent questioning is confined to an entirely independent investigation, there is little risk that the suspect will be badgered into submission.

The Court reasons that it is “by no means clear” that “police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody.” Ante, at 686. That misses the point. Unless there are so many separate investigations that fresh teams of police are regularly turning up to question the suspect, the danger of badgering is minimal, and insufficient to justify a rigid per se rule. Whatever their eagerness, the police in a separate investigation may not commence any questioning unless the suspect is readvised of his Miranda rights and consents to the interrogation, and they are required by Edwards to cease questioning him if he invokes his right, to counsel. Consequently, the legitimate interest of the suspect in not being subjected to coercive badgering is already protected. The reason for the Edwards rule is not that confessions are disfavored but that coercion is feared. The rule announced today, however, prohibits the police from resuming questions, after a second Miranda warning, when there is no more likelihood of coercion than when the first interrogation began.

The Court suggests that the suspect may believe his rights are fictitious if he must assert them a second time, but the support for this suggestion is weak. The suspéct, having observed that his earlier invocation of rights was effective in terminating questioning and having been advised that further questioning may not relate to that crime, would under *691 stand that he may invoke his rights again with respect to the new investigation, and so terminate questioning regarding that investigation as well. Indeed, the new warnings and explanations will reinforce his comprehension of a suspect’s rights.

I note that the conduct of the police in this case was hardly exemplary; they reinitiated questioning of respondent regarding the first investigation after he had asserted his right to counsel in that investigation. The statements he gave in response, however, properly were excluded at trial-for all purposes except impeachment. Any sense of coercion generated by this violation which carried over into the questioning on the second offense would of course be taken into account by a court reviewing whether the waiver of Miranda rights in the second investigation was voluntary, and the per se rule announced today is therefore not necessary to respond to such misconduct.

Allowing authorities who conduct a separate investigation to read the suspect his Miranda rights and ask him whether he wishes to invoke them strikes an appropriate balance, which protects the suspect’s freedom from coercion without unnecessarily disrupting legitimate law enforcement efforts. Balance is essential when the Court fashions rules which are preventative and do not themselves stem from violations of a constitutional right. Michigan v. Tucker, 417 U. S. 433, 444 (1974). By contrast with the Fourth Amendment exclusionary rule, for instance, the rule here operates even absent constitutional violation, see Oregon v. Elstad, 470 U. S. 298, 306-307 (1985), and we should be cautious in extending it. The Court expresses a preference for bright lines, but the line it draws here is far more restrictive than necessary to protect the interests at stake.

By prohibiting the police from questioning the suspect regarding a separate investigation, the Court chooses to presume that a suspect has made the decision that he does not wish to talk about that investigation without counsel present, *692 although that decision was made when the suspect was unaware of even the existence of a separate investigation. The underlying premise seems to be that there are two types of people: those who never talk without a lawyer and those who always talk without a lawyer. The more realistic view of human nature suggests that a suspect will want the opportunity, when he learns of the separate investigations, to decide whether he wishes to speak to the authorities in a particular investigation with or without representation.

In other contexts, we have taken a more realistic approach to separate and independent investigations. In Maine v. Moulton, 474 U. S. 159 (1985), we held that the Sixth Amendment right to counsel barred admission of statements elicited from a criminal defendant by a government informant when the statements related , to the charge on which the defendant had been indicted. We were careful to note, however, that the rule would have been otherwise had the statements related to a different charge. “[T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities.” Id., at 180 . Similarly, we held in Michigan v. Mosley, 423 U. S. 96 (1975), that a suspect who had been arrested on charges of committing robbery and who had invoked his right to silence could be questioned later about an unrelated murder, if first read his Miranda rights. The Court correctly points out that neither of these cases necessarily control the one before us; Moulton involved the Sixth Amendment right to counsel and Mosley involved the Fifth Amendment right to silence, while this case involves the Fifth Amendment right to counsel. Moulton and Mosley nevertheless reflected an understanding that the invocation of a criminal suspect’s constitutional rights could be respected, and the opportunities for unfair coercion restricted, without the establishmént of a broad-brush *693 rule by which the assertion of a right in one investigation is automatically applied to a separate and independent one.

In considering whether to extend the Edwards rule to this case, the choice is not between holding, as the Court does, that such statements will never be admissible, and holding that such statements will always be admissible. The choice is between the Court’s absolute rule establishing an irrebut-table presumption of coercion, and one which relies upon known and tested warnings, applied to each investigation as required by Edwards and Miranda v. Arizona, 384 U. S. 436 (1966), to insure that a waiver is voluntary. The problems to which Edwards was addressed are not present here in any substantial degree. Today’s rule will neither serve the interest of law enforcement nor give necessary protection to the rights of those suspected of crime. I respectfully dissent.