Amicus Brief — North Carolina v. Butler

j Sapreme Court, U. S. |

("wv FILED

‘FEB 3 4979

No. 78-354 i

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

STATE OF NORTH CAROLINA, PETITIONER

Vv.

WILLIE THOMAS BUTLER

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

WADE H. McCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

JOHN VOORHEES

Attorney

Department of Justice

Washington, D.C. 20530

INDEX

Interest of the United States ............................ 1

RN gi oi rina: i aiiacilsisensesioapienanennsiive 2

Constitutional provisions involved ...................- 2

t ITE -icindaieinaceinnpbucedledilisisheiaheiscibstéimaniinasinnnatiatonhite 2

ORTON CE FAIWUTIIOINE | niinccccscccccccsnsccecenceserovces 6

Argument:

A voluntary waiver of Miranda rights

does not require that the accused either

sign a waiver of rights form or express-

ly decline the right to counsel .................. 8

A. The Miranda decision does not

reqiire an express declination

DESPRE IR Nea i 8

B. A rule requiring express decli-

nation of the right to counsel as

a prerequisite of a valid waiver

of Miranda rights conflicts with

the Court’s post-Miranda deci-

UE sori endoacdatnc caaiiciacigaldis 18

NS eae 1 daicnmanecimenet 23

CITATIONS

Cases:

Blackmon v. Blackledge, 541 F.2d 1070... 20

Bond v. United States, 397 F.2d 162,

cert. denied, 393 U.S. 1035 -................ 15

Brewer v. Williams, 430 U.S. 387 ............ 20-21

Brown v. Illinois, 422 U.S. 590 ................ 19

Carnley v. Cochran, 369 U.S. 506 -........... 20

II Ill

Cases—Continued Page sapattinlatninea | Page

Chambers v. Florida, 309 U.S. 227 .......... 9 ° ae dened, 418 US. $19 phneiren 21

Doyle v. Ohio, 426 U.S. 610 000022222222... 10 ert. , SED Steins

Fare v. Michael C., No. A-33 (July 28, v oy _— ve nesiienbanii ahs a

1978) ee ee 17 United States v. Montos, 421 F.2d 215,

Frazier v. Cupp, 394 U.S. 731 .......<------- 19, 20 ck ack oe re

ee ” United States v. Moreno-Lopez, 466 F.2d

Haynes v. Washington, 373 U.S. 508 ...... 9 “a! ‘ss

a a United States v. Speaks, 453 F.2d 966,

Johnson v. Zerbst, 304 U.S. 458 .............. 20 cert. denied. 405 U.S. 1071... +

Keegan v. United States, 385. F.2d 260, United States v. Springer, 460 F.2d 1344,

cert. denied, 391 US. 967 Tp eee 2 aaah ancmaiad 20 cert. denied, 409 U.S. 873 alg Lois Matas 91

posi eo ee 20 United States v. Stewart, 585 F.2d 799,

ee . petition for cert. pending, No. 78-6007.. 20

Michigan v. Mosley, 423 U.S. 96 ...... 7,12, 18,19

Michigan v. Tucker, 417 U.S. 483 -..... 8,9, 10,11

Mincey v. Arizona, No. 77-5353 (June 21,

I lie s-isek oaccharetabalincsden thicaianibcntandcpmnborinbeinine 10

Miranda v. Arizona, 384 U.S. 486 _.......... passim

Oregon v. Hass, 420 U.S. 714 .................. 19

Schneckloth v. Bustamonte, 412 U.S. 218.. 20

State v. Blackmon, 280 N.C. 42, 185 S.E.

I I iat eh phi cea dlahcecied ina hgieciaieniet aa va 20

United States v. Boston, 508 F.2d 1171,

cert. denied, 421 U.S. 1001 —..200000... 15

United States v. Caulton, 498 F.2d 412,

cert. denied, 419 U.S. 898 —.0000 15

United States v. Cooper, 499 F.2d 1060.... 15, 21

United States v. Crisp, 4385 F.2d 354,

cert. denied, 402 U.S. 947 W000. 15

United States v. Ganter, 486 F.2d 364.... 20

United States v. Guzman-Guzman, 488

BRIE scialis ssscaathctuecastiaenasecipentabliidtdgentainides 15

United States v. Hayes, 385 F.2d 375,

cert. denied, 390 U.S. 1006 -.....000000. 21

United States v. Stuckey, 441 F.2d 1104,

cert. denied, 404 U.S. 841 ...................... 15

United States v. Thompson, 417 F.2d 196,

cert. denied, 396 U.S. 1047 -................... 15

United States v. Washington, 431 U.S.

NRE REI ae CLI A Boe ONO Boren Co rN 20

United States v. Zamarripa, 544 F.2d

978, cert. denied, 429 U.S. 111 -........... 1

Wan v. United States, 266 U.S. 1 -...........

Watts v. Indiana, 338 U.S. 49 ...........----...

White v. Texas, 310 U.S. 530 ....................

ooo cr

Constitution:

United States Constitution:

Fifth Amendment .................. 2,9, 10, 12, 19

I PN oa ciscciiccionssnnncsientoncanit 20

Fourteenth Amendment .................... 2,9

Statutes:

IES MIND eciircsreercornctanddobaacsbnaccsecmades

N.C. Gen. Stat. (1969):

Rules:

No se | ft ) eee

Miscellaneous:

Comment, The Refusal of an Accused to

Sign a Written Miranda Rights Waiver

Form After His Oral Affirmation of

His Understanding of Those Rights

Will Not Defeat a Showing of a Valid

Waiver, 43 Geo. Wash. L. Rev. 895

BREET 0 5 SEES ea Oe

Comment, Waiver of Rights in Police In-

terrogations: Miranda in the Lower

Courts, 36 U. Chi. L. Rev. 413 (1969)...

CW Ww

21

15

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-354

STATE OF NORTH CAROLINA, PETITIONER

Vv.

WILLIE THOMAS BUTLER

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF NORTH CAROLINA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This case presents an important question concern-

ing the legal standards governing waiver of the Fifth

Amendment privilege against compulsory self-incrimi-

nation following receipt of the warnings required by

Mifranda v. Arizona, 384 U.S. 436 (1966). Although

this is a state prosecution, the statements at issue here

were obtained by FBI agents acting in accordance

with standard FBI procedures. Moreover, a substan-

tial number of federal prosecutions involve the admis-

(1)

2

sion of statements freely made by a defendant after he

has been advised of his Miranda rights. Accordingly,

the United States has a direct and significant in-

terest in the determination whether a defendant’s

express declination of the right to counsel is a neces-

Sary prerequisite to an oral waiver of Miranda rights.

QUESTION PRESENTED

Whether a defendant’s decision to answer questions

immediately after being advised of his rights under

Miranda v. Arizéna, 384 U.S. 486 (1966), is none-

theless insufficient to establish a waiver of those rights

in the absence of an express declination of the right

to counsel.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States Con-

stitution provides in relevant part:

No person * * * shall be compelled in any

criminal case to be a witness against himself

* *

.

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

[N]or shall any State deprive any person of

life, liberty, or property, without due process of

a fs

STATEMENT

Following a jury trial in the Superior Court of the

State of North Carolina (Wayne County), respond-

ent was convicted of kidnaping, armed robbery, and

3

felonious assault, in violation of N.C. Gen. Stat. §§ 14-

39, 14-87, and 14-82(a) (1969). He was sentenced

to life imprisonment on the kidnaping and armed

robbery counts and five years’ imprisonment on the

assault count, all sentences to run concurrently. The

Supreme Court of North Carolina reversed the con-

victions and remanded for a new trial (Pet. App.

A-1 to A-8).

The evidence at trial showed that at approxi-

mately 11:00 p.m. on December 28, 1976, respondent

and a friend named Elmer Lee went to a gas station

in Goldsboro, North Carolina, to buy beer. The at-

tendant, Ralph Burlingame, told respondent and Lee

that the station was closed, and the two men appeared

to depart. However, as Burlingame left the station

minutes later, respondent and Lee approached him

with drawn guns and ordered him to drive them away

in his automobile. Once inside the car, respondent

informed Burlingame ‘that they were going to rob

and then shoot him. Burlingame immediately at-

tempted to escape by leaping from the moving vehicle,

but he was shot in the back as he jumped from the

car. After they had stopped the car, respondent and

Lee returned to the spot where Burlingame lay, stole

his wallet containing $30, and each shot him again.’

Although the attack left Burlingame paralyzed from

the waist down, he survived and later identified re-

spondent and Lee from a photographic array as his

1 Ballistics evidence established that the bullets removed

from Burlingame’s back were fired from two different guns

(R. 73).

4

assailants and testified in court that he was certain

respondent was the man who had shot him (Pet.

A-1 to A-2).

On the basis of a North Carolina fugitive warrant,

FBI agents arrested respondent on May 3, 1977, in

the Bronx, New York. The agents gave respondent

the warnings required by Miranda v. Arizona, 384

U.S. 486 (1966), and transported him to the FBI

office in New Rochelle, New York. During this 15

minute drive, the agents did not ask respondent any

questions related to the North Carolina incident and

respondent did not make any statements (Pet. App.

A-3; App. 2-5, 24-25, 29).

Upon arriving at the FBI office, Agents Richard

Berry and David Martinez took respondent to an in-

terview room and again advised him of his Miranda

rights. After ascertaining that respondent had an

eleventh grade education and that he was literate,

the agents gave respondent the standard FBI “Ad-

vice +’ Rights” form and asked him to read it over

and sign it. Respondent read the form and told the

2 This form (FD-395) reads as follows (Pet. 7) :

“YOUR RIGHTS”

Before we ask you any questions, you must understand

your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice

before we ask you any questions and to have him with

you during questioning.

If you cannot afford a lawyer, one will be appointed

for you before any questioning if you wish.

If you decide to answer questions now without a law-

5

agents that he understood his rights but that “he

didn’t want to sign this form and that he didn’t

want to sign anything.” At that point, the agents

again informed respondent that he did not have to

talk with them or sign the form and that he could

have an attorney present, but that they would like

to ask him questions. Respondent replied: “I will

talk to you but I am not signing any form.” Re-

spondent then made a number of incriminating state-

ments that were later introduced at trial.* At no

time during the interview did respondent request

counsel or attempt to end the questioning (Pet. App.

A-3 to A-5; App. 3, 5-6, 14-19, 20-23, 25-26, 30-31).

Respondent moved to suppress the incriminating

statements made to the FBI agents on the ground

that he had not waived his constitutional right to

the presence and assistance of counsel (Pet. App.

yer present, you will still have the right to stop answering

at any time until you talk to a lawyer.

“WAIVER OF RIGHTS”

I have read this statement of my rights and I under-

stand what my rights are. I am willing to make a state-

ment and answer questions. I do not want a lawyer at

this time. I understand and know what I am doing. No

promises or threats have been made to me and no pressure

or coercion of any kind has been used against me.

Signed

* Respondent admitted that he and Lee had been drinking

heavily and had decided to rob a gas station. Respondent

claimed, however, that he had not participated in the actual

robbery and that it was Lee who had shot the attendant (App.

6-7, 10-11, 12-13, 26-27, 31-32).

6

A-3). After an evidentiary hearing at which Agent

Martinez’s testimony concerning respondent’s FBI

interview was uncontradicted, the trial court found

that respondent “‘understood his rights,” “freely and

voluntarily [spoke] to [the] agent after having been

advised of his rights as required by the Miranda

ruling,” and “effectively waived his rights, including

the right to have an attorney present during the

questioning, by his indication.that he was willing to

answer questions” (App. 22-28). On appeal, the

Supreme Court of North Carolina reversed. Relying

upon this Court’s statement in Miranda v. Arizona,

supra, 384 U.S. at 470, that “[n]o effective waiver

of the right to counsel during interrogation can be

recognized unless specifically made after the warn-

ings we here delineate have been given,” the court

below held that respondent’s failure to sign the

waiver card or expressly to decline the assistance of

counsel precluded a finding of waiver on this record

(Pet. App. A-5 to A-8).

SUMMARY OF ARGUMENT

In suppressing respondent’s incriminating post-

arrest statements to FBI agents, the Supreme Court

of North Carolina held that, in the absence of a

signed written waiver, an accused cannot waive the

rights established by this Court’s decision in Miranda

v. Arizona, 384 U.S. 486 (1966), without an express

declination of counsel. But Miranda itself does not

set forth any mandatory waiver procedure, much less

hold that an accused must expressly state that he

7

does not wish to consult with an attorney before

questioning may begin. Moreover, the unyielding

waiver rule adopted by the court below would unduly

hamper proper police investigative work and would

upset the balance struck by Miranda between the

protection of Fifth Amendment rights and the rea-

sonable needs of law enforcement. As the Court re-

peatedly stated in Miranda, once a person in custody

has been properly informed of his rights, the au-

thorities may question him until and unless he indi-

cates in some manner that he desires either to con-

sult with counsel or to remain silent. The FBI agents

complied with that command here.

In addition to constituting an unwarranted exten-

sion of Miranda, the decision below is inconsistent

with a number of this Court’s rulings involving the

propriety of police procedures during custodial in-

terrogation. In Michigan v. Mosley, 423 U.S. 96

(1975), for example, in upholding the admissibility

of certain post-arrest statements made in the absence

of an express waiver of the right to counsel, the

Court noted only that the defendant had never asked

to speak with an attorney. Indeed, the facts of this

case present an even stronger instance of voluntary

waiver, since respondent not only never indicated a

desire to remain silent or to consult with counsel but

also told the FBI agents that he would be willing to

talk to them. The federal courts of appeals have

unanimously agreed that, in similar circumstances,

an accused may waive his Miranda rights without

8

signing a waiver form or expressly declining the

right to counsel.

Finally, the per se rule applied by the court

below is at odds with the “totality of the circum-

stances” approach to waiver problems long favored

by this Court. The case by case analysis required

by that approach is particularly appropriate to the

circumstances of custodial interrogations, given the

wide variety of situations in which such interroga-

tion may occur. Here, without any suggestion of

coercion, respondent affirmatively and deliberately

chose to talk to the FBI agents immediately after

acknowledging that he understood his rights. His

subsequent statements were therefore correctly ad-

mitted at trial.

ARGUMENT

A VOLUNTARY WAIVER OF MIRANDA RIGHTS

DOES NOT REQUIRE THAT THE ACCUSED EITHER

SIGN A WAIVER OF RIGHTS FORM OR EXPRESSLY

DECLINE THE RIGHT TO COUNSEL

A. The Miranda Decision Does Not Require An Express

Declination of Counsel.

1. Prior to this Court’s decision in Miranda v.

Arizona, supra, the admissibility of a defendant’s

post-arrest statements principally involved considera-

tion of whether such statements could be character-

ized as “voluntary.” See Michigan v. Tucker, 417

U.S. 488, 441 (1974). Thus, insofar as constitutional

doctrine was concerned,‘ the primary inquiry was

* Statutes or supervisory rules such as Fed. R. Crim. P. 5 (a)

tended to limit the instances of abuse in post-arrest interroga-

9

whether the circumstances and techniques of cus-

todial interrogation were so fundamentally unfair

that the confession should be suppressed as a matter

of due process. See, e.g., Haynes v. Washington, 373

U.S. 503 (1968); Watts v. Indiana, 338 U.S. 49

(1949); White v. Texas, 310 U.S. 530 (1940);

Chambers v. Florida, 309 U.S. 227 (1940); Wan v.

United States, 266 U.S. 1 (1924).

In Miranda, the Court shifted the locus of consti-

tutional protection against compelled confessions from

the Due Process Clause to the Self-Incrimination

Clause. Miranda v. Arizona, supra, 384 U.S. at 457;

Michigan v. Tucker, supra, 417 U.S. at 443.° “To

supplement this new doctrine, and to help police offi-

cers conduct interrogations without facing a con-

tinued risk that valuable evidence would be lost, the

Court in Miranda established a set of specific protec-

tive guidelines * * *.” Ibid. These now familiar

rules require that “[p]rior to any [custodial] ques-

tioning, the person must be warned that he has a

right to remain silent, that any statement he does

make may be used as evidence against him, and that

he has a right to the presence of an attorney, either

retained or appointed.” Miranda v. Arizona, supra,

384 U.S. at 444. Any statement obtained from a

tion in some jurisdictions. See Miranda v. Arizona, supra, 384

U.S. at 463.

5 Two years earlier, in Malloy v. Hogan, 378 U.S. 1 (1964),

the Court held that the privilege against compulsory self-

incrimination was protected by the Fourteenth Amendment

against abridgment by the states.

10

defendant during the course of custodial interroga-

tion and prior to the complete recitation of these

warnings is inadmissible, even though the statement

may in fact be wholly voluntary. Id. at 444-445, 467-

474. See Michigan v. Mosley, 423 U.S. 96, 99-100

(1975).° -

Miranda, however, did not preclude all custodial

interrogation. Rather, the Court attempted to strike

a balance between the protection of Fifth Amendment

rights and the reasonable needs of law enforce-

ment. 384 U.S. at 479-486. Thus, the Court spe-

cifically stated on several occasions that once the

accused has received the appropriate warnings, law

enforcement authorities may commence their ques-

tioning until and unless he “indicates in any man-

ner and at any stage of the process that he wishes

to consult with an attorney * * * [or] that he does

not wish to be interrogated * * *.” Jd. at 444-445;

see also id. at 467-472, 473-474. Any statement

elicited from the accused during such questioning

may be introduced at trial, provided that the govern-

ment sufficiently establishes that the accused waived

his rights “voluntarily, knowingly, and intelligently.”

Id. at 444, 475-476, 478, 479. See, e.g., Michigan v.

Tucker, supra, 417 U.S. at 444.

‘If a statement obtained in violation of Miranda is none-

theless found to be voluntary in the traditional sense, the

prosecution may use that statement to impeach the defendant’s

contradictory testimony at trial. See Mincey v. Arizona,

No. 77-5353 (June 21, 1978), slip op. 9-15; Oregon v. Hass,

420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222

(1971).

11

2. This case focuses upon the circumstances prop-

erly constituting a voluntary, knowing and intelli-

gent waiver of the right to remain silent, as con-

strued and protected by this Court’s decision in Mi-

randa.’ As noted above, the Miranda decision re-

peatedly recognized that after the authorities have

effectively informed the accused of his Miranda rights

they may question him until such time as he chooses

to exercise either his right to remain silent or his

right to consult with counsel (384 U.S. at 473-474;

emphasis added and footnote omitted) :

Once warnings have been given, the subse-

quent procedure is clear. If the individual in-

dicates 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 can-

not be other than the product of compulsion,

subtle or otherwise. Without the right to cut

off questioning, the setting of in-custody inter-

rogation operates on the individual to overcome

free choice in producing a statement after the

privilege has been once invoked. If the indi-

vidual states that he wants an attorney, the in-

terrogation must cease until an attorney is pres-

ent. At that time, the individual must have an

opportunity to confer with the attorney and to

7The Court recognized in Miranda that the prophylactic

rules established therein were not required by the Constitu-

tion. 384 U.S. at 467. See Doyle v. Ohio, 426 U.S. 610, 617

(1976) ; Michigan v. Tucker, supra, 417 U.S. at 444.

12

have him present during any subsequent ques-

tioning. If the individual cannot obtain an at-

torney and he indicates that he wants one before

speaking to police, they must respect his decision

to remain silent.

See also id. at 444-445, 467, 472.

Thus, if the accused has been informed of and

understands his Miranda rights, his subsequent state-

ments will be admissible unless he has manifested in

some fashion an intent to exercise his Fifth Amend-

ment rights. Where the accused asks for an attor-

ney, affirmatively indicates that he does not wish to

answer questions, or even stands completely silent

under circumstances suggesting a decision to discon-

tinue the interrogation, law enforcement officers must

“serupulously honor []” his decision by immediately

terminating the questioning (384 U.S. at 479). See

Michigan v. Mosley, supra, 423 U.S. at 103-104.

On the other hand, where the government shows that

the accused was fully aware of his Miranda rights

and nonetheless responded to questions or offered a

confession, there is no reason why those statements

should not be used against the defendant even though

he may not have signed a waiver form or otherwise

prefaced his statements with an express oral waiver

of his rights. See note 10, infra."

®Of course, the refusal to sign a waiver form or to give

an oral waiver may perhaps constitute a sufficient affirmative

indication of the desire to assert Fifth Amendment rights

so as to require a cessation of custodial questioning. As we

discuss below (see Part B, infra), the trial judge must evalu-

ate all of the relevant circumstances in determining the issue

of waiver.

13

Here, the uncontradicted version of the events sur-

rounding respondent’s interrogation demonstrates

that the FBI agents fully complied with both the rules

established in Miranda and the standard FBI pro-

cedures that were expressly approved by the Court at

that time.’ The agents read respondent his rights on

* 384 U.S. at 483-486. The relevant portion of the current

FBI policy provides as follows:

7-4 WAIVER OF RIGHTS

Before a statement can be admitted into evidence, the

Government must prove that the suspect fully understood

the warnings and freely decided to answer questions.

A suspect who remains silent after receiving warnings

has not agreed to be questioned.

7-4.1 Policy

(1) Use of Form FD-395—Inasmuch as the Govern-

ment will have to meet a “heavy burden” in establishing

that an accused knowingly and intelligently waived his

rights, it is desirable that the subject’s acknowledgment

of the warnings and his waiver be obtained in writing.

FD-395 should be used for this purpose. Completion of

this form by the suspect provides documentary proof of

both the warning and waiver of rights; consequently, the

words of the full warning and waiver should not be re-

peated in the FD-302 reporting the results of the inter-

view. State only the fact that the accused was warned of

his rights and that he waived them, “as shown on an

executed warning and waiver form” ; this notation should

appear immediately before the report’s recitation of what

the accused said in his statement.

(2) Signed Statement and FD-395—If the subject

waives his rights and is willing to furnish a written

statement, the Agent may write or print “Statement”

immediately below the waiver and then proceed to record

the statement given. The words of the warning and

waiver should not be repeated in the body of the state-

ment. The completed statement should be signed and wit-

14

two separate occasions prior to any questioning and,

upon ascertaining that respondent was literate, gave

him the standard FBI advice of rights form to read

(App. 3-4, 5-6, 15, 20-22, 25-26). Respondent read

nessed at the bottom, and each page initialed by the

subject.

(3) Refusal to Sign FD-395—If the accused is willing

to waive his rights but will not sign Form FD-395, use the

blank space on the form to record the language in which

he indicated his willingness to waive (precise quotation if

possible) and then execute the form in all respects other

than his signature.

(4) Refusal to Waive—If the accused refuses to

waive, the words and the fact of his refusal should be

written in the blank space and the form should then be

executed in all other respects.

(5) FD-395; Impossible or Impractical to Use—In

any situation in which the written form is impossible

or impractical to use, an acknowledgment of rights and

a waiver of those rights can be obtained orally from the

suspect. If FD-395 is not used, the justification therefor

must be set out in the cover pages of the report setting

forth the results of the interview. Although the oral

warning and waiver need not be given in any particular

form, they must conform substantially to the language

found in FD-395. The testimony of the Agent that the

warning was administered, that the suspect expressly

stated his willingness to make a statement, and that he

did not want a lawyer should suffice to carry the Gov-

ernment’s burden.

In order to ensure the admissibility of statements made by

an accused in custody, the FBI policy suggests that the agent

obtain either a written waiver or an express oral waiver of

the right to remain silent. Although such express waivers

are not required by Miranda, proof of waiver is obviously

facilitated where (as here) either form of express waiver is

obtained. In contrast, the policy does not suggest that an agent

attempt to obtain an express oral declination of counsel.

15

the form and acknowledged that he understood his

rights (ibid.). The agents then asked whether he

wished to sign the waiver form and whether he would

consent to answer questions, even though he was not

required to do so. Respondent replied that, although

he would not sign the form, he would talk to the

agents (Pet. App. A-4; App. 5-6, 15-17, 22, 26). He

then proceeded to answer their questions (App. 6-7,

10-13, 26-27).

Despite this evidence, the Supreme Court of North

Carolina held that respondent had not waived his

rights because he had never signed the FBI waiver

form or expressly declined the assistance of counsel.”

1° The court did not intimate that a signed or written waiver

is always necessary. The federal courts of appeals have unani-

mously held that Miranda does not require such proof of

waiver and that the fact that the accused refuses to sign a

waiver form does not preclude a finding of waiver. See, e.g.,

United States v. Speaks, 453 F.2d 966, 968-969 (1st Cir.),

cert. denied, 405 U.S. 1071 (1972) ; United States v. Boston,

508 F.2d 1171, 1175 (2d Cir. 1974), cert. denied, 421 U.S. 1001

(1975) ; United States v. Stuckey, 441 F.2d 1104 (3d Cir.),

cert. denied, 404 U.S. 841 (1971) ; United States v. Thompson,

417 F.2d 196 (4th Cir. 1969), cert. denied, 396 U.S. 1047

(1970) ; United States v. Guzman-Guzman, 488 F.2d 965 (5th

Cir. 1974) ; United States v. Caulton, 498 F.2d 412 (6th Cir.),

cert. denied, 419 U.S. 898 (1974) ; United States v. Crisp, 435

F.2d 354, 358 (7th Cir. 1970), cert. denied, 402 U.S. 947

(1971) ; United States v. Zamarripa, 544 F.2d 978, 981 (8th

Cir. 1976), cert. denied, 429 U.S. 1111 (1977) ; United States

v. Moreno-Lopez, 466 F.2d 1205 (9th Cir. 1972); Bond v.

United States, 397 F.2d 162, 165 (10th Cir. 1968), cert. de-

nied, 393 U.S. 1035 (1969) ; United States v. Cooper, 499 F.2d

1060, 1062-1063 (D.C. Cir. 1974). See generally Comment,

Waiver of Rights in Police Interrogations: Miranda in the

Lower Courts, 36 U. Chi. L. Rev. 413, 426-429 (1969).

16

In reaching this conclusion the court relied pri-

marily (Pet. App. A-6) on the following passage from

Miranda (384 U.S. at 470):

An individual need not make a pre-interroga-

tion request for a lawyer. While such request

affirmatively secures his right to have one, his

failure to ask for a lawyer does not constitute

a waiver. No effective waiver of the right to

counsel during interrogation can be recognized

unless specifically made after the warnings we

here delineate have been given.

But this language, particularly when read in con-

junction with the other portions of Miranda quoted

above, establishes only that a waiver of the right

to counsel during custodial interrogation cannot be

presumed from the failure to request counsel prior

to the recitation of the Miranda warnings.” Instead,

a waiver of the right to counsel, like a waiver of the

right to remain silent, can occur only after the re-

quired warnings have been given and the accused has

been made aware of his legal rights.

3. Nor does the decision below effectuate the poli-

cies underlying Miranda. That decision reflects the

1 The court also relied (Pet. App. A-6) upon another por-

tion of Miranda that states that “[a]n express statement that

the individual is willing to make a statement and does not

want an attorney followed closely by a statement could consti-

tute a waiver.” 384 U.S. at 475. This portion of the opinion,

which was, of course, unnecessary to the Court’s decision,

does not purport to limit the possible situations that could

constitute a waiver. Especially in light of the other passages

from Miranda quoted at length above, it cannot be said to

mandate the result reached below.

17

judgment that custodial interrogation, even when

carried out in compliance with the Due Process

Clause, may be inherently coercive and therefore may

tend to undermine the intelligent exercise of the self-

incrimination privilege. 384 U.S. at 445-458. To

offset the perceived coercion in such interrogation, this

Court promulgated a series of warnings that must

be administered by the police prior to commencing

questioning. Therefore, the purpose of the Miranda

rules is accomplished when the accused has been given

the appropriate warnings and understands his rights.

At that point, the coerciveness of the custodial inter-

rogation has been substantially dispelled and the ac-

cused can make an informed decision to talk with his

detainers.

The prophylactic rules announced in Miranda thus

represent a careful accommodation of the rights of

the accused and the reasonable and legitimate needs

of law enforcement officials. By requiring that an

accused make particular talismanic responses before

his voluntary and uncoerced statements may be ad-

mitted in evidence, the court below has upset this

balance. See Fare v. Michael C., No. A-33 (July

28, 1978) (Rehnquist, Circuit Justice). While such

technicalities may perhaps be appropriate in other

contexts, such as the entry of a guilty plea, a de-

tailed check list of specific questions and approved

responses is impracticable and unwarranted in the

context of a criminal investigation.” In sum, the in-

12 Although the North Carolina Supreme Court did not re-

quire that the accused also state that he knew he could have

18

stant decision “would transform the Miranda safe-

guards into wholly irrational obstacles to legitimate

police investigative activity * * *.” Michigan v.

Mosley, supra, 423 U.S. at 102.

B. A Rule Requiring Express Declination of the Right to

Counsel as a Prerequisite of a Valid Waiver of

Miranda Rights Conflicts with the Court’s Post-

Miranda Decisions.

1. Although this Court has never directly held

that a person may waive his Miranda rights without

specifically stating that he does not desire counsel,

an analysis of several of the Court’s post-Miranda

decisions strongly suggests that the decision below

constitutes an unwarranted extension of Miranda.

For example, in Michigan v. Mosley, supra, the Court

considered whether an accused’s initial invocation

of his right to remain silent concerning one crime

precluded his subsequent waiver of that right when,

after several hours, a different police officer gave him

Miranda warnings for a second time and began to

question him concerning an unrelated crime. In con-

cluding that the statements made following the sec-

ond warnings were admissible, the Court pointed

out that the accused, like respondent, had never af-

firmatively indicated at any time that he desired to

consult with counsel (423 U.S. at 97, 98, and 104

n.10). Nonetheless, the Court noted that “there is no

an attorney appointed but that he still did not wish counsel,

such a requirement is a logical extension of the court’s in-

sistance that the waiver be “specifically made” (Pet. App.

A-7).

19

claim that the procedures followed during [the sec-

ond] interrogation of Mosley, standing alone, did not

fully comply with the strictures of the Miranda opin-

ion.” Id. at 98 (footnote omitted). This conclusion

is patently inconsistent with the holding below.

Similarly, in Oregon v. Hass, 420 U.S. 714, 715-

716, 723 (1975), the defendant—like respondent

—made several incriminating statements immedi-

ately after receiving Miranda warnings. During the

course of the custodial interrogation, the accused

remarked that he “was in a lot of trouble” and would

like to telephone his attorney. The lower court held,

and this Court appeared to assume, that the state-

ments made prior to the moment that the accused

affirmatively manifested an intent to exercise his

right to counsel were admissible. Jd. at 716, 723.

In other words, an accused’s Miranda rights are not

violated until “the officer * * * continues his inter-

rogation after the suspect asks for an attorney.”

Id. at 723. See also Brown v. Illinois, 422 U.S. 590,

594-595 (1975); Frazier v. Cupp, 394 U.S. 731,

738 (1969).

2. In suppressing respondent’s statements, the

North Carolina Supreme Court essentially estab-

lished a per se rule concerning the waiver of Miranda

rights: In the absence of a signed waiver, an ac-

cused will not be held to have waived his Fifth

13 Indeed, the Court indicated that it might have reached

a different result if Mosley had actually indicated a desire

for counsel. See 423 U.S. at 104 n.10.

20

Amendment rights“ unless he states expressly both

that he is willing to talk and that he does not desire

the assistance of counsel. See also State v. Black-

mon, 280 N.C. 42, 185 S.E.2d 123 (1971). Thus, not

only does the decision below conflict with the relevant

Miranda decisions of this and other courts,” but also

its unyielding approach is conceptually at odds with

the “totality of the circumstances” analysis that the

Court has long applied in determining waiver ques-

tions. See, e.g., Johnson v. Zerbst, 304 U.S. 458,

464 (1938); Frazier v. Cupp, supra, 394 U.S. at

739; Schneckloth v. Bustamonte, 412 U.S. 218 (1978) ;

United States v. Washington, 481 U.S. 181, 188

(1977) ; Brewer v. Williams, 430 U.S. 387, 435-436

14 Although some language in the court’s opinion, and its

quotation from Carnley v. Cochran, 369 U.S. 506 (1962), sug-

gest that it considered the Sixth Amendment right to counsel

to be implicated here (Pet. App. A-6, A-7), this case involves

the Self-Incrimination Clause alone, as protected by Miranda’s

prophylactic rules. The Sixth Amendment “right to counsel

attaches only at or after the time that adversary judicial pro-

ceedings have been initiated against” an accused. Kirby Vv.

Illinois, 406 U.S. 682, 688 (1972).

15 See, e.g., United States v. Stewart, 585 F.2d 799 (5th Cir.

1978), petition for cert. pending, No. 78-6007; Blackmon V.

Blackledge, 541 F.2d 1070, 1073 (4th Cir. 1976); United

States v. Marchildon, 519 F.2d 387, 3438-344 (8th Cir. 1975) ;

Hughes v. Swenson, 452 F.2d 866 (8th Cir. 1971) ; United

States v. Ganter, 436 F.2d 364, 369-370 (7th Cir. 1970) ;

United States v. Montos, 421 F.2d 215, 224 (5th Cir.), cert.

denied, 397 U.S. 1022 (1970); Keegan v. United States, 385

F.2d 260 (9th Cir. 1967), cert. denied, 391 U.S. 967 (1968).

See note 10, supra.

21

& n.5 (1977) (White, J., dissenting).** And this case

by case approach is equally appropriate to waiver

analysis in the wide ranging circumstances of cus-

todial interrogation.

Given the totality of the circumstances presented

in this case, we believe that the trial judge correctly

concluded that respondent knowingly and voluntarily

waived his right to remain silent. Although respond-

ent refused to sign a waiver card, that was but one

fact among many to be considered by the judge.”

A person who has just been arrested may decide not

to sign anything for a variety of reasons other than a

desire to remain silent,’ and the courts of appeals

16 With regard to the admissibility of confessions in federal

prosecutions, the “totality of the circumstances” approach

has been codified at 18 U.S.C. 3501(b).

17 Conversely, the fact that a defendant signs a waiver form

does not necessarily discharge the government’s burden of

proving a waiver. See United States v. Cooper, 499 F.2d 1060,

1062-1063 (D.C. Cir. 1974) ; United States v. Hayes, 385 F.2d

375, 377 (4th Cir. 1967), cert. denied, 390 U.S. 1006 (1968).

In the absence of proof that the police obtained the signature

by coercion or deception, the signed waiver form will establish

a presumption that the accused waived his right to remain

silent. See United States v. Springer, 460 F.2d 1344, 1349

(7th Cir.), cert. denied, 409 U.S. 873 (1972).

18 The refusal to sign “may indicate nothing more than a

reluctance to put pen to paper under the circumstance of

custody. A detainee may still wish to discuss the matter with

his detainers for any number of reasons, including a desire

to exculpate or explain himself.” United States v. McDaniel,

463 F.2d 129, 135 (5th Cir. 1972), cert. denied, 413 U.S. 919

(1973). See Comment, The Refusal of an Accused to Sign a

Written Miranda Rights Waiver Form After His Oral Affirma-

tion of His Understanding of Those Rights Will Not Defeat a

Showing of a Valid Waiver, 43 Geo. Wash. L. Rev. 985 (1975).

22

therefore have unanimously held that the failure to

execute a written waiver does not preclude a finding

of waiver. See note 10, supra. Here, respondent was

not coerced or tricked by the FBI agents, he acknow!-

edged that he understood his rights (which had been

explained to him twice and which he had read for

himself), he explicitly remarked that he would be

willing to talk to the agents, and he then freely an-

swered the agents’ questions without hesitation.’® In

short, respondent’s statements were made “volun-

tarily, knowingly and intelligently” (Miranda v.

Arizona, supra, 384 U.S. at 444), and the Supreme

Court of North Carolina erred in holding that they

were inadmissible at trial.

1° The Court recognized in Miranda that the closeness in

time between the warnings and the statements was a factor

to be considered. 384 U.S. at 475. Respondent’s admissions

immediately followed his waiver.

a

23

CONCLUSION

The judgment of the Supreme Court of North

Carolina should be reversed.

Respectfully submitted.

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

ANDREW J. LEVANDER

Assistant to the Solicitor General

JOHN VOORHEES

Attorney

FEBRUARY 1979

W ov. 8S. GOVERNMENT PRINTING orrice; 1979 2866248 307