Amicus Curiae Brief — Colorado v. Spring

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Supreme Court, U.S.

FILE D

ws

No. 85-1517

JUL 18 1988

>PANIOL, JR.

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

STATE OF COLORADO, PETITIONER

Vv.

JOHN LEROY SPRING

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF COLORADO

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ANDREW J. PINCUS

Assistant to the Solicitor Genera!

Department of Justice

Washington, D.C. 205380

202) 633-2217

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QUESTION PRESENTED

Whether respondent’s voluntary statements should

be suppressed under Miranda v. Arizona, 384 U.S.

1386 (1966), on the ground that the law enforcement

officers’ failure to identify in advance the crimes that

would be the subjects of the interrogation rendered

respondent’s waiver of his Miranda rights ineffective.

TABLE OF CONTENTS

Interest of the United States

Statement Z

Summary of argument

Argument:

aco y Vig , arty ‘ ,OY 7)

Respondent’s voluntary statements should not |

suppressed

A. The law enforcement officers’ administration of

the Miranda warnings supplied respondent

with all the information he needed to make

a

knowing Miranda waiver

B. Respondent’s waiver of his Miranda rights v

voluntary

~ y e

TABLE OF AUTHORITIES

B , mer \ M el ror j 16% T ~ 4c)

Carter V. Garris 656 F.2d 65 =

U.S. 952 t

f ling Vv. Brie y] /. 19? 2 Id 735. cert de} ed 119

U.S. 877 ib, 25

Commonwealth v. Forde, 466 N.E.2d 510 6

Fare v. Michael C.. 442 U.S. 707 12? 12 97

Frazier v. Cupp, 394 U.S. 731

Harris Vv. Riddle, 551 F.2d 936, cert. denied, 434

U.S. 849

Michigan V. Mosley, 423 U.S. 96

Michigan V. Tucker, 417 U.S. 433 L4

Miranda Vv. Arizona, 384 U.S. 436

Miller v. Fenton, No. 84-5786 (Dec. 3, 1985

Miller v. Fenton, No. 83-5530 (3d Cir. J

LORG )

IV

Cases—Continued: Page

Moran Vv. Burbine, No. 84-1485 (Mar. 10, 1986) passim

New York v. Quarles, 467 U.S. 649 2)

North Carolina v. Butler, 441 U.S. 369

Oregon V. Elstad, No. 83-773 (Mar. 4, 1985) passin

—"

~

Schenk vy. Ellsworth, 293 F. Supp. 26 16

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

Spano v. New York, 360 U.S. 35 27

State Vy. Woods, l 17 Wis. 2d 701. S45 N W 2d 157

(1984) 26

United States v. Anderson. 533 F.2d 1210 L7

United States v. Burger, 728 F.2d 140 17

United States v. Campbell, 431 F.2d 97 17

United States v. Contreras, 667 F.2d 976, cert. dé

nied, 459 U.S. 849 17

United States v. Hall, 396 F.2ce 841. cert. denied.

393 U.S. 918

lynited States v. Met ‘rary, 648 F.2d 3283 16

United States ex rel. Placek v. Illinois, 546 F.2d

1298 17

United States v. Wash naton, 431 U.S. 18] 15, 19, 20,

Watts v. Indiana, 338 U.S. 49

Constitution:

U.S. Const

Amend. V 15

Amend. XIV (Due Process Clause) 26, 27, 28

Miscellaneous:

1 W. LaFave & J. Israel, Criminal Procedure

(1984) 26

White, Police Trickery In Inducing Confessions,

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

~ —

No. 85-15] i

STATE OF COLORADO, PETITIONER

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ON WRI

SUPREME COURT OF COLORADO

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The issue in this case is whether respondent’s

waiver of his rights under Miranda v. Arizona, 384

U.S. 486 (1966). was invalid because the law en-

forcement officers did not inform respondent of the

crimes that would be the subjects of the proposed

interrogation. The Court’s analysis and resolution of

the question whether police must provide this in-

formation in addition to the warnings prescribed in

Viranda is likely to have an effect upon the conduct

| t off

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Interrogations DY Tederal iaw enrtorcement omcers

V ae CA |

and the admission of voluntary statements in federal

criminal prosecutions.

STATEMENT

l. In February 1979, Harold N. Wachtor, III, a

law enforcement officer employed by the Bureau of

Alcohol, Tobacco and Firearms of the United States

Department of the Treasury, learned that respondent

and several other persons were involved in a scheme

to steal firearms and resell them in another state.

Agent Wachtor recruited George Dennison, one of

the members of the group, as a government inform-

ant. In addition to revealing the details of the fire-

arms scheme, Dennison told Wachtor that respondent

once admitted killing a man during a hunting trip in

Colorado. Pet. App. 2A, 7C; Supp. Tr. 7-10, 31, 40.

Dennison subsequently szported to Wachtor that

respondent had obtained some firearms and was look-

ing for a buyer. Pursuant to Wachtor’s instructions,

Dennison arranged a meeting between respondent and

undercover ATF agents that was held on March 30,

1979." The agents reached an agreement with re-

spondent for the purchase of the firearms; respond-

ent and one of his confederates were arrested as they

transferred the firearms to the uslijreover agents’

automobile. Respondent was found to be in possession

of a .22 caliber pistol at the time »f his arrest. Pet.

App. 1A-2A, 7C; Supp. Tr. 9-11, 18.

'“Supp. Tr.” refers to the transcript of the suppression

hearing conducted on March 17, 1980; “Tr.” refers to the

trial transcript.

*In the course of a telephone conversation with Dennison

concerning the sale of the firearms, respondent implicated

himself in the hunting trip murder. That conversation was

tape-recorded by ATF agents. Pet. App. 8C.

One of the ATF agents read the Miranda warnings

to respondent just after respondent was placed under

arrest. Later that day, at the ATF office, respondent

again was advised of his Miranda rights by ATF

Agents Patterson and Sadowski. He agreed to answer

the agents’ questions and executed a written form

acknowledging and waiving his rights. Pet. App. 3A,

8C; Supp. Tr. 14-16, 20, 66-67. The agents first in-

terrogated respondent about the firearms transac-

tions. They then inquired whether respondent had a

criminal record; respondent stated that he had a

juvenile record involving the shooting of his aunt.

Agent Patterson asked respondent whether he had

ever shot anyone else. Pet. App. 3A, 8C-9C; Supp.

Tr. 69, 74-77. Respondent “kind of ducked his head

and mumbled ‘I shot another guy once.’” Supp. Tr.

69; see also Pet. App. 3A, 9C. Respondent stated

response to subsequent questions that he had never

been to Colorado and that he had not killed Donald

Walker—the victim of the hunting trip shooting. Pet.

3A, 9C; Supp. Tr. 69.

On May 26, 1979, while he was in custody on

charges growing out of the firearm sales scheme, re-

spondent was interviewed by Colorado law enforce-

ment officers concerning the murder of Donald

Walker. Prior to the commencement of the question-

ing, respondent was advised of his Miranda rights,

ind he executed a written acknowledgment and

aiver of those rights. Respondent admitted that he

had accompanied Walker and Donald Wagner on a

deer hunt, that he held the flashlight while Wagner

hot Walker, that either respondent or Wagner emp-

tied Walker’s pockets, that respondent aided Walker

in disposing of the body, and that respondent later

lied about Walker’s whereabouts Respondent subse-

4

quently signed a written statement prepared by one

of the officers, which summarized the interview. Pet.

App. 4A-5A, 17C-18C; Supp. Tr. 80-90, 98-103.°

5’ Approximately six weeks later, after respondent entered

his guilty plea to the federal firearms offenses and an informa-

tion charging him with murder had been issued in Colorado,

respondent again was interviewed by the ATF agents. At that

interview, on July 13, 1979, the agents administered the

Miranda warnings and respondent indicated that he under-

stood his rights. Respondent stated that he would not sign

any forms without the advice of his lawyer, but he agreed to

answer the agents’ questions. Respondent answered a number

of inquiries concerning the location of a variety of firearms

and explosives. The questioning then turned to the Walker

murder. In response to several questions, respondent said,

“I’d rather not talk about that,” but he then admitted that he

had been in Colorado with Waiker at the time of the murder

and that the gun in his possession at the time of his arrest

previously had belonged to Walker. Respondent agreed that

“The], Wagner and Walker went out together and that only

[he] and Wagner came back alive.” Pet. App. 5A-6A, 19C-

20C; Supp. Tr. 22-28, 32-35, 70-73.

The trial court found that these statements were admissible

(Pet. App. 6A-7A), but the Colorado intermediate appellate

court disagreed, holding that respondent had “invoke|d]j his

right to silence as to the homicide” when he at first declined

to answer questions relating to that subject (id. at 4B). The

Colorado Supreme Court unanimously concluded that the

statements should be suppressed because the agents did not

make “any effort to reaffirm [respondent’s] decision to waive

his constitutional rights after he declined to answer particular

questions” and failed to ascertain whether respondent in-

tended to exercise his privilege against compelled self-

incrimination with respect to all questions relating to the

Walker murder. /d. at 23C-24C; see also id. at 35C. This

Court limited its grant of certiorari to the first question pre-

sented in the petition, and thereby expressly declined to re-

view the state court’s determination with respect to this issue

Accordingly, no question regarding the admissibility of the

July 13 statements is presented in this case.

2. Respondent was charged with first degree mur-

ler in connection with the death of Donaid

Prior to trial, respondent moved to suppress the state-

ments he made in the interviews on the ground that

he had not effectively walved his Miranda rights.

The trial court denied respondent’s motion (Pet. App

1A-9A). With respect to the March 30 interview. th

irt found (id. at 3A) that

IS questioning was conducted while | respona-

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arrest; that [respondent] had been properly ad

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sed of his rights and was aware of his rignt to

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errogation, to stop tne interrogation at al

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ne; and that his responses to the interrogatior

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e made tIreely, voluntar! and inte lige!

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nere Was no eiemel ort duress or coer I

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to Indu respondent’s!| statements

ne court noted that respondent was not specifica

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Colorado murder, but it found tha the questior

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The trial court also concluded that respondent

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Di¢ rhe court ODS rved that r'¢ spond nt was

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ed of his rights, executed a waiver forn |

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itement Summarizing tne intervis Ihe rt

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Respondent was found guilty of first degree mur-

der, and he appealed to the Colorado intermediate

appellate court. That court reversed respondent’s con-

viction by a tivided vote, holding that respondent’s

statements had been admitted into evidence in viola-

tion of this Court’s decision in Miranda v. Arizona,

supra (Pet. App. 1B-7B). The court stated that

‘“fajn advisement of the privilege against self-

incrimination and of [the] right to counsel is sufficient

if the accused fully knows the general nature of the

crime involved. If knowledge of the crime is with-

held, a suspect cannot intelligently make the decision

as to whether he wants counsel” (id. at 3B (citation

omitted) ). Since the agents did not advise respond-

ent that the questioning in the March 30 interview

would relate to the Colorado murder, the court con-

cluded that “any waiver of rights ir regard to ques-

tions designed to elicit information about [the mur-

der] was not given knowingly or intelligently”

(ibid.). None of respondent’s March 30 statements

had been introduced at trial, but the appellate court

did not note that fact.* It concluded that the reversal

of respondent’s conviction was required because re

spondent’s March 30 Miranda waiver was invalid

(Pet. App. 3B).

The court stated that th

ie May 26 statement was

not admissible because it was a “fruit” of respond-

ent’s March 30 statements. The May 26 statement

had to be suppressed, the court concluded, because

the State had failed to show that “the [May 26]

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statement was not the product of [respondent’s] prior

incriminating statements” (Pet. App. 4B).

One judge dissented. He concluded that at the time

of the March 30 interview respondent was “full)

aware that his activities surrounding the possession

and sale of stolen firearms were the basis for his

arrest and the agents’ investigation” (Pet. App. 6B).

Because the .22 pistol found on respondent was the

weapon that had been taken from Walker at the time

of his death, the dissenting judge concluded that ques-

tions regarding the source and the use of the pistol

were foreseeable, and that respondent’s Miranda

waiver on March 30 was therefore valid and proper.

The dissenting Judge further concluded that respond-

ent’s May 26 Miranda waiver was valid as well ( Pet.

App. 6B-7B).

3. The Supreme Court of Colorado affirmed by a

divided vote (Pet. App. 1C-35C). Observing tha

“Ti]t seems likely that a suspect’s decision whether

to consult with an attorney will often be infiuenced

by the seriousness of the matter underlying the inter-

rogation” (id. at 12C), the majority stated that

‘“lo|ne factor often considered crucial to a court’s

determination as to the validity of a waiver * * * is

the extent of the suspect’s knowledge concerning the

?

.

likely subjects and scope of the prospective question-

ing’ (id. at 13C). The court concluded that “‘an ex-

amination of the totality of the circumstances is

proper and necessary to determine, among other

things, the extent of the suspect’s awareness of the

subject matter of the investigation and the impact of

this awareness, or lack of awareness, on the suspect’s

decision to waive his constitutional rights” (ibid.).

The court found that, in the present case, “the ab-

ence of an advisement to [respondent] that he would

be questioned about the Colorado homicide, and the

lack of any basis to conclude that at the time of the

execution of the waiver, he reasonably could have ex-

pected that the interrogation would extend to that

subject, are determinative factors in undermining the

validity of the waiver” (Pet. App. 15C (emphasis in

original) ). The court therefore concluded that re-

spondent did not make a “voluntary, knowing and in-

telligent waiver of [his] rights” in connection with

the March 30 interview (id. at 17C).

The court considered the admissibility of the March

30 statements to be relevant because the court be-

lieved that its finding of a violation of Miranda o1

March 30 might require the suppression of responc

ent’s May 26 statement. Pet. App. 10C-11C. The

court held that the May 26 statement would be in

admissible if it was “the direct fruit of the March 30

statement” (id. at 19C), and it directed the trial

court to resolve that issue on remand.’

Two justices dissented. They noted that respondent

had been advised of his rights as required by Miranda

and had indicated that he understood those rights.

The dissenting justices stated that “fa waiver of

Miranda rights should never be held invalid simply

because the suspect is not informed or does not know

in advance of all matters that are under investigation

and will be the subject of interrogation” (Pet. App

33C).

The | rado Supreme Coun so | e]

on remand the State’s argument th he May 26 statem

was admissible under © Vv. Histad, No. 83-773 (Mar

1985), regardless of the admissibi! of the Marcl em<*

{ Se¢ r ‘ 1S tt nh)

9

SUMMARY OF ARGUMENT

In Miranda vy. Arizona, 384 U.S. 486 (1966), this

Court prescribed a set of “procedural safeguards” de-

signed to protect persons suspected of criminal wrong-

doing from what the Court viewed as the inherent

compulsion of custodial interrogation, and thereb)

enable such persons freely ‘o exercise their pri\

against compelled self-incrimination. Mira)

not prohibit all custodial interrogation; on thi

trary, it established a specific procedure by wi!

suspect could waive his privilege 2nd agree to at

questions posed by the police.

The law enforcement officers in the present

followed with precision the procedures set forth b»

this Court in Miranda. They recited the Miranda

warnings, ensured that respondent understood his

rights, and obtained from respondent a written waiver

of those rights. The court below, however, treated the

officers’ compliance with Miranda as the beginning

rather than the end of its inquiry. The court con

cluded that respondent’s waiver was invalid because

he had not been supplied with a supplement to the

Miranda warnings

a description of the criminal ac-

tivity that was to be the subject of the proposed in-

terrogation. This Court’s ~ecent decisions in Moran

v. Burbine, No. 84-1485 (Mar. 10, 1986). and Ore gon

v. Elstad, No. 88-7338 (Mar. 4, 1985). conclusively

demonstrate that the Colorado Supreme Court erred

by requiring the police to provide respondent with in-

formation other than that contained in the Miranda

warnings.

The first inquiry in evaluating the validity of a

a ° 7 } " ,

Miranda Wal > | wnetner the suspect ed WI1LN

full aware) both of the nature of the right being

abandoned ara tl OFlSeCUuences OT «tne GecIslol

o

10

abandon it” (Moran, slip op. 7). This test plainiy is

satisfied as long as the suspect is supplied with the

information contained in the Miranda warnings. The

warnings inform the suspect of his right to remain

silent and caution him that any statement he makes

can be used against him; a suge@fet who is aware of

the information contained in the warnings thus pos-

sesses all the information necessary for an effective

walver.

The Colorado Supreme Court concluded that a sus-

pect also should be told of the subject matter of the

interrogation because that information might influ-

ence the suspect’s decision whether to waive his right

to remain silent. But this Court repeatedly has held

that Miranda’s sole purpose is to ensure the volun-

tariness of a suspect’s decision to speak or remain

silent; it is not a guarantee that the suspect’s decision

will comport with his informed self-interest. Law

enforcement officers therefore are not required to pro-

vide a suspect with any and all information that he

might find helpful in deciding whether to speak or

remain silent.

Such a novel rule would upset the balance that this

Court has struck between the competing interests im-

plicated in custodial interrogation. The rule would

not further the Fifth Amendment interests protected

by Miranda, because the additional information

not necessary to enable a suspect to exercise his priv

lege against compelled self-incrimination. Yet

rule would discourage voluntary confessions and

thereby undermine society’s compelling interest in ap

prehending and convicting persons who have engaged

in criminal activity. Moreover, the principle applied

by the court below would greatly reduce the clarity of

Miranda’s waiver procedures and, as a result, in-

erease the difficulties facing police officers charged

with administering the Miranda rule.

1]

Respondent’s waiver also satisfied the second re-

quirement for an effective Miranda waiver because it

was “voluntary in the sense that it was the product of

a free and deliberate choice rather than intimidation,

coercion or deception” (Moran, slip op. 7). No physi-

cal or psychological pressure was applied to obtain the

waiver. In addition, because the law enforcement offi-

cers did not deceive respondent with respect to the

information conveyed in the Miranda warnings, but

simply withheld information that Miranda did not

require them to provide, the waiver was not the prod-

uct of impermissible police deception. For these rea-

sons, respondent’s waiver of his Miranda rights

should be upheld.

ARGUMENT

RESPONDENT’S VOLUNTARY STATEMENTS SHOULD

NOT BE SUPPRESSED

in Miranda v. Arizona, 384 U.S. 486 (1966). this

Court concluded that custodial interrogation by law

enforcement officers generates “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” (384 U.S. at 467). “To combat this in-

herent compulsion, and thereby protect the Fifth

Amendment privilege against self incrimination,

]

Miranda imposed on the police an obligation to Iol-

low certain procedures in their dealings with the

accused” (Moran v. Burbine. No. 85-1485 (Mar. 10

198%), slip op. 6). The Court held that, prior to any

quesuloning of a suspect, a law enforcement officer

must inform the suspect “that he has a right to re

main silent, that any statement he does make may be

used as evidence against him, and that he has a right

» the presence of an attorney, either retained

ointed” (Miranda, 384 U.S. at 444).

i

vd

Viranda further provided that a sus}

his right to remain silent and agree

questioning by law enforcement officers “

waiver is made voluntarily, knowingly

gently.” 384 U.S. at 444; see also id. at

waiver is valid if it is the product of

deliberate choice,” and if it is made “

awareness both of the nature of tl

doned and the consequences of the decision

LO

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it.” Moran v. Burbine, slip op. 7; see also

Michael C., 442 U.S. 707, 725 (1979); Ne

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ree al

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ie right being aban

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with the March 30 interview conducted |

agents In our view, respondent’s Mira

nlainlvy was valid. The agents administered the wa

nos required by Miranda, respondent in

Although none of the statements made by r

y r the March a() nterview vere adn ed at tr

of the waiver is relevant because the Colorado §

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indicated that respondent’s May 26 statement 1

pressed on the ground that it was a “fruit” of the

statement The Colorado Supreme Court dh ed

court 3 qaeterm ne the rel; at snij etTweel TNhé T

ments on remand. Pet. App. 18C-19' Since the

qT ement w d y + he sijhiect ¢ su] pres ; the

tatements were ot obtained in violation of Mira

ng that respondent’s March 30 waiver was valida v

nate any ques n regarding tne aamis ot ti!

Statement

Even if the March 30 statements wer ned

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ngs, and respondent voluntarily agreed to waive his

right to remain sil

ions. Miranda an

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simple procedure is all

-

nt and to answer the agents’ ques

1 its progeny make clear that this

that is required to obtain a1

ffective waiver.

\. The Law Enforcement Officers’ Administration Of

The Miranda Warnings Supplied Respondent With

All The Information He Needed To Make A Knowing

Miranda Waiver

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eC Was 1Nn rmed by law enforce! ent officers

e had a right to remain silent. that anv statems

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e made could be used against him. and that he

right to request a lawyer (Pet. App. 5A, 8C). T

Colorado Supreme Court concluded that respond

aiver nonetheless was ineffective because he

nformed in advance of all the subjects that

covered in the proposed interrogation. It is well s

ed, however, that a police officer may obtai1

alver simply by conveying tO a suspect the infon

contained in the Miranda warnings themselves;

» additional information is required. The officers’

recise compliance with Miranda in this ease thers

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re was sufficient to supply respondent with the in-

rmation necessary for an effective waiver.’

inhis Cour stated ! M hat a pect mu (

' é Ot nis } h in order | execute a valid walivel

¢ 7) r} iS, a M rd la Wa rv i not pve € er Vé I

pect ia to comprehend the informatio: ntained lt

ne warnings This question must be evaluated by cor deri!

he [suspect’s] age, experience, education, background, and

telligence” (Fare Vv. Michael C., 442 U.S. at 725). Nothin:

he record in this case indicates that respondent failed

ne rmat n conveyed by the wart ny

l4

1. This Court steadfastly has adhered to the view

that the warnings prescribed by Miranda provide a

suspect with all the information that he needs to de-

cide whether to waive his rights. The Miranda Court

itself noted that advising a suspect that his state-

ments can be used against him will ‘make [the sus-

pect] aware not only of the privilege, but also of the

consequences of forgoing it” (384 U.S. at 469). No-

where in the Court’s comprehensive discussion of the

warnings (id. at 467-474) is there even a hint that

the police would be required to append ad hoc supple-

ments to the warnings depending on the facts of each

particular case.

Only last Term, this Court expressly reaffirmed

that the warnings convey to a suspect all the informa-

tion necessary for an effective Miranda waiver, stai-

ing that “fo]nce it is determined that a suspect's

lecision not to rely on his rights was uncoerced, that

.e at all times knew he could stand mute and request

a lawyer, and that he was aware of the state’s inten-

ion to use his statements to secure a conviction, the

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analysis is complete and the waiver is valid as a mat-

ter of law.”’ Moran, slip op. 8; see also Fare v. Mi-

chael C., 442 U.S. at 718; Michigan v. Mosley, 423

U.S. 96, 99-100 (1975) ; Michigan v. Tucker, 417 U.S.

133, 443-444 (1974); ef. Oregon v. Elstad, No. 83-

773 (Mar. 4, 1985), slip op. 12 (“[t]he warning con-

veys the relevant information and thereafter the sus-

pect’s choice whether to exercise his privilege to re-

main silent should ordinarily be viewed as an ‘act of

free will’ ”’).

The conclusion that the warnings supply a suspect

with all the information that is relevant under M?-

nda is a direct corollary of the principle upon which

Viranda is based. The sole purpose of the warnings

procedures mandated by Miranda is to

15

counteract the compulsion to speak that a suspect

might feel as a result of custodial interrogation,

thereby protecting the suspect’s privilege against com-

pelled self-inerim ination. Moran, slip op. 6, 10-11;

Miranda, 384 U.S. at « wa ag reminding the suspect

that he is: « ..'ed to refrain from speaking, and that

if he chooses to answer questions he may provide in-

formation that can be used against him, the warnings

fully counteract any such compulsion to speak. As

this Court has recognized, at Is inconceivable that

1e Miranda] warning wouid fail to alert La defend-

nt} to his right to refuse t er any question

which might narininal * * Indeed, it seems

self-evident that one w! sf free to refuse

to answer questions is i! ture to later

complain that his answi United

States v. Washington , 4 ION; 7): see

also Moran, slip op. 13 | VM full com-

prehension of the rignts to re nt and request

an attorney are sufficient to dis; el whatever coercion

is inherent in the interrogati n } rocess”’ ).

Respondent’s waiver plainly satisfies this standard.

The officers’ recitation of the ivende warnings ex-

pressly reminded respondent that he had a right to

‘emain silent and that his statements could be used

against him. The warnings thus fully informed re-

spondent of the existence of his Fifth Amendment

privilege and the consequence of abandoning that

privilege.* Accordingly, the officers were not re-

The requirement that a suspect be made “aware[] * * * of

* the consequences of the decision to abandon [the privi-

ege|”’ in order effectively to waive his right to remain silent

(Mora a op. 7) does not justify a rule requiring the police

a Iv is e suspect of the particular criminal activity that

are investigating. It could be argued that informing the

| |

?

quirea to provide respondent with information apout

}

the subject matter of the proposed interrogation in

order to accomplish that goal

)

suspect of the topics of the interrogation would in some general

sense provide the suspect with information about the conse-

quences of waiving his rights—he would learn the particular

criminal activity in w .ich he might implicate himself. How-

ever, the sole consequence of which a suspect must be informed

for purposes of Miranda is that his statements can be used

against him. Once he is aware of that fact, he understands

“the consequences of forgoing [the privilege].’ Miranda,

384 U.S. at 469; see also Moran, slip op. at 8, 9-10.

'The lower courts that have concluded that a suspect

knowledge of the subjects of the interrogation is relevant in

assessing the validity of his Miranda waiver nave formulated

essentially two different standards. Some courts impose an

obligation upon the police to provide this information, holding

that the police must inform the suspect of the subject of the

interrogation in every case. See, e.g., Schenk v. Ellsworth

293 F. Supp. 26, 29 (D. Mont. 1968). Other courts, including

the court below (see Pet. App. 13C-17C), have cast the re-

quirement in terms of the suspect’s knowledge, holding that

the suspect’s awareness of the subject matter of the proposed

interrogation must be considered in assessing the validity of

the suspect’s waiver. On this view, the police are not obligated

to supplement the Miranda warnings as long as the suspect

could have ascertained the subjects of the interrogation from

his knowledge of the surrounding circumstances. See, e.g..

Carter v. Garrison, 656 F.2d_68, 70 (4th Cir. 1981), cert

denied, 455 U.S. 952 (1982): United States v. McCrary, 643

F.2d 328. 328-329 (5th Cir. 1981): see also Collins v. Brierly.

192 F.2d 735, 739 (3d Cir.) (en banc), cert. denied, 419 U.S

877 (1974). Although the rules applied by these courts differ

in their particulars, they rest upon the same basic legal co1

clusion—that the suspect’s awareness of the subject of the

interrogation is in some way relevant in assessing the validity

of his Miranda waiver. For the reasons discussed in the text

this conclusion is incorrect.

Other courts have held that the validity of a suspect’s waiver

. ‘tv " - : +? le 7 : } . 4

is unaffected by the suspect’s lack of knowledge about the

"he only pessible reason for requiring the police

—~

provide a suspect with this additional informatio

is the justification advanced by the Colorado Supreme

Court—that ‘“‘a suspect’s decision whether to consult

it] orney before answering questions will

uenced by the seriousness of the matter

inderlying the interrogation” (Pet. App. 12C). How-

ever, just as this Court has made clear that the M/-

randa warnings convey to a suspect all the informa-

mn needed for a valid waiver, the Court consistently

nas refused to require supplementation of the warn-

ys on the ground that the additional informatio

ight be considered useful by a suspect in calculat-

g whether it is in his self-interest to waive his

rights. Miranda requires only that the suspect be

ade aware that he is free to choose between speak

ng and remaining silent; it is not concerned wit

wisdom of that choice. Accordingly, the suspect

ust be supplied with information only when that

ormation is necessary to make the suspect aware

his right to choose to remain silent.

In Oregon v. Elstad, supra, for example, the Co

+] laf , va 7~ sn. = ae

ejected the defendant’s claim tnat nls ME tTaANG

pjects of the proposea interros atior See. e.g.. / ited Stat

B 28 F.2d 140, 141 (2d Cir. 1984): United Stat \

i p30 F.2d 1210, 1212 n.8 (D.C. Cir. 1976): 7 ted

States V. Campbell, 431 F.2d 97, 99 n.1 (9th Cir. 1970)

irts also have rejected arguments that the Miranda want

ngs should be supplementé d with other categories of inforn

tion. See, e.g., United States v. Contreras, 667 F.2d 976, 979

(llth Cir.), cert. denied, 459 U.S. 849 (1982): Harris \

R e, 551 F.2d 936, 938-939 (4th Cir.). cert. denied. 434

S. &4Y9 (1977): United State p yp] Place] 7 Illinaze 546

F.2d 1298, 1300 (7th Cir 1976): ted States Hall. 296

1 A] $45-846 (Ath (‘iy . 1, , 7s 012

GR

-

et CO LL LL LLL LLL LL CL LL LE EE

18

waiver was not fully informed because he had not

received an additional warning telling him that his

previous confession was inadmissible. The defendant

asserted that the additional information might have

affected his decision whether to assert his right to

remain silent. The Court stated that an additional

warning was “neither practicable nor constitution-

ally necessary,” and noted that it had “never em-

braced the theory that a defendant’s ignorance of thi

full consequences of his decisions vitiates their volun

tariness” (Oregon v. Elstad, slip op. 17).

The Court reached the same result in Moran v.

Burbine, supra, holding that a suspect need not be

inform ed of the fact that an attorney had telephoned

the police station to inquire about his case. It stated:

“No doubt the additional information would have

been useful to [the defendant] ; perhaps even it might

have affected his decision to confess. But we have

never read the Constitution to require that the police

supply a suspect with a flow of information to help

him calibrate his self interest in deciding whether to

=peak or stand by his rights” (slip op. 8).

This Court’s decisions in Elstad and Moran com-

pel the rejection of the Colorado Supreme Court’s

conclusion that a suspect must be aware of the sub-

jects of the proposed interrogation in order efiec

tively to waive his Miranda rights. An additional!

warning cannot be mandated on the ground that the

information would be useful to the suspect becausée

as this Court has made clear, “Miranda [does not}

require[] the police to inform a suspect of any and

all information that would be useful to a decision

whether to remain silent or speak with the police”

(Moran, slip op. 18 n.4). Whether a suspect pos

sesses such information accordingly is irrelevant i

assessing the validity of his Miranda waiver.

he Court’s decision in United States v. Was}

SUPTa, Provides additional Support for tnis ¢c

- a ; , ‘ane

sion. The defendant in Washington received t]

Miranda warnings prior to testifying before a grand

ry, but he argued that he also should have been tol4

at he was a potential defendant. The Court rejecte:

e claim that the Miranda warnings were inadequate

,

rotect tne ae fendant

s Fifth Amendment privilege

pserved that “‘[|e]ven in the presumed psycholo:

ercive atmosphere of police custodial inte

tion, J es not require that any ad

Cn Simply vecause tne sSuspe

(431 U.S. at t88). Since

f V1tn wfhlS informa I

; + «1 nia r +} ,

M e topics of le ints

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‘ ) SS 1S aeeee in gevern I

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> Cast ere not required to supply re

I el li dal aqdaitiona nrtorma I f I

in 2 9110 Viranda Walvel

’ . . } . }

4 Expanding the scope or the Viranda

117 that « 968 - % _ j

requl. nat a Suspect be Iniormed in advance

e possible subiects of the interrogation is ut

anted for the additional reason that such a require

would dramatically alter the balance struck by

Court in Miranda with respect to the constit

nai constraints upon custodial interrogation. ‘

rt has recognized that “[e]ustodial interrogatio1

‘ate two competing concerns” (Moran, slip

| pat sé ‘th . an f : a. —_ 4: P

we lie needa To? police questioning as a

y . . °

‘ ret 1 “4+ ate! ‘a _ ] ‘Y 4

TILE © enrorcement of criminal iaWS Cannot mM

‘ . . ‘

‘ Lam? { : ] . +]

( ions 7 OUlit are } ore nan mere

, :

( e\ ire essentia! U Soc1levtV Ss ¢ I? f

’ ney ’ ¥ ’ ’ ’ ney ’ ’ ?

ea

’ >

nas conciudaed tnat tne nterroga ! rocess 1S

h nt] , nda 7 t ,

erentiv coercive and al aS a cons lf f f

exists a substantial risk that the p ice Will inadve

tantlx + o« roy } . fy . lin | +x y ] or 4 ' + i>

tently traverse tne fine line petween iecitimate ¢

T slinit ‘ mwiI¢ Tat, na mn" titiyitinnall +? , y)

LO @11C1L AGMISSIONS and Constitutional! Im pe Ss f

compulsion” (Moran, slip op. 12).

rT 1, ‘ + a4 . 2 | ] } —— + :

rhe Court reconciled these interests in M

sé 7° Ao a : : :

ing that “[pl]olice questioning , | con-

in j form, * * * b nly if the

. ] . , ) _ ] 4+] 4 4 . ’

suspect clearly unaerstood tnat,. at an\ me, me

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bring the proceeding to a halt or, short of that, ca

an attorney to give advice and monitor the conduct of

his interrogators” (Moran. slip op. 12). By requiri

police officers to inform a suspect al

iatter of the interrogation solely because that infor-

mation is relevant to a suspect’s calculation of

own self-interest in waiving or standi: n his

vilege, the rule adopted by the court bel

“upset this [Court’s] carefully draw

manner that is both unnecessary for the

the Fifth Amendment privilege and

legitimate law enforcement” (Moran. slip on. 12-1

Moreover, the rationale underlvine such a rm

would be virtually limitless—extending to anv infor-

mation possessed by police officers that might b

relevant to the suspect’s calculation of his self-inte?

est. For example, the suspect’s decision to waive

his rights and consent to interrogation probabil

would be affected by the quality and quantity of in-

formation already possessed by the police concerning

the suspect’s involvement in the offense under investi-

if

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: ‘

‘ ‘ ’ ’

Pet! f(t) ¢ "ny " | rs y*) ne , TNé riory ont ’

= . “

; " + " + _ . ; 448)

qisser ng i! i! [ ev. Michael ( , 442

4 ei ‘V , ’ ~

~*~ a (1 ; iy 4 . r y nas rne YT lf

lorming police and prosecutors tn specificity as

+ + | "

0 what they may do in conductine « istodial interro-

nts ) f . Lf

VaALION, ANG OT intorminge <« irts Ge] nat circum-

Stance State ) I ht 1? ) ’ y ry? OT} )

LA TICES SLALEMeENUS ODtalned s inverrogatiol

are not admissible’’).

The adoption by this Court of th Colorado Supreme

Court’s decision “would ha tne ine itahle ConSe-

quence of muddying Miranda’s otherwise relatively

clear waters” (Moran, slip op. 11). For example,

would the police be required to inform a suspect of

the conduct that is under investigation (@.g., “a kill-

ing’) or would they be required to list for the suspect

each of the actual charges that might possibly be

brought? A police officer’s suspicion with regard to

a particular offense could change in the course of an

interrogation as the suspect reYaled new information.

Would the officer be required to interrupt his ques-

tioning to advise the suspect that he now was under

suspicion for an additional offense? In addition, as

the dissenting justices on the Colorado Supreme Court

observed (Pet. App. 34C), “[p]Jrior to questioning a

suspect, the police may have insufficient information

to determine what charges will ultimately be filed

against him. The nature of the offense may depend

upon circumstances unknown to the police, such as

whether the suspect has a criminal record. It may

also turn upon an event yet to occur, such as whether

the victim of the crime dies.”

The uncertainty generated by the Colorado court’s

rule would not necessarily be confined to advising a

suspect of the criminal activity that would be the

subject of the interrogation. As we have discussed

(see pages 20-21, supra), the principle embraced by

the Colorado Supreme Court could be applied to re-

quire police officers to provide suspects with a range

of other information that might be viewed as relevant

to a suspect’s calculation of his self-interest in decid-

ing whether to waive his rights. A careful police of-

ficer therefore could no longer be sure that adminis-

tration of the Miranda warnings would provide the

predicate for a valid waiver. Instead, he would have

to examine the facts of each case to determine whether

23

a court might later conclude that some piece of in-

formation woula have been relevant to the suspect’s

decision. And a miscalculation in either direction

could prove costly: if he erred in failing to supply

the information, any confession he obtained would

have to be suppressed; if he erred on the side of cau-

tion, his action could needlessly discourage the mak-

ing of a statement and thwart successful investiga-

tion of a serious crime.

B. Respondent’s Waiver Of His Miranda Rights Was

Voluntary

The second aspect of the Miranda waiver inquiry

is whether “the relinquishment of the right [was]

voluntary in the sense that it was the product of a

free and deliberate choice rather than intimidation.

coercion or deception” (Moran, slip op. 7). The ques-

tion is whether the waiver was the product of an

“uncoerced choice” by the suspect (ibid.).

Nothing in the record in this case indicates that

respondent’s waiver was the result of physical or psy-

chological pressure. The trial court found that “there

was no element of duress or coercion used to induce

[respondent’s] statements on March 30, 1979” (Pet.

App. 3A), and neither of the two state appellate

courts questioned that determination. Respondent’s

waiver therefore was clearly voluntary. Cf. Moran,

slip op. 7."

'© Some courts have suggested that a waiver may not be

“voluntary” if the suspect is not aware of the subjects of the

proposed interrogation. See, e.g., Collins v. Brierly, 492 F.2d

at 739. However, the limitations upon a police officer’s obliga-

tion to provide information to a Suspect cannot be circum-

vented by the use of the “voluntariness” label; a waiver is

not rendered involuntary by a police officer’s failure to provide

24

Respondent intimates (Br. in Opp. 6) that his

waiver was the product of a “deliberate intent to mis-

lead [respondent] about the subject matter of the in-

terrogation.” In our view, nothing in the record sup-

ports the conclusion that the agents withheld informa-

tion about the topics of the proposed interrogation as

part of a deliberate effort to mislead respondent into

waiving his Fifth Amendment privilege. Even if re-

spondent were correct, however, that fact would not

vitiate his Miranda waiver.

Miranda provides that “any evidence that the ac-

cused was threatened, tricked, or cajoled into a

waiver wiil, of course, show that the defendant did

not voluntarily waive his privilege” (384 U.S. at

476). The Court similarly observed in Moran that a

waiver that is “the product of * * * intimidation,

coercion or deception” is involuntary (slip op. 7).

The context of each of these references to deception

and trickery indicates that deception can render a

Miranda waiver involuntary only when the deception

amounts to the equivalent of coercion, precluding the

suspect from making a free choice between waiving

and standing on his rights. As we have discussed,

that plainly was not the case here.

Police deception also would invalidate a waiver if

it “deprive[d] a defendant of knowledge essential to

his ability to understand the nature of his rights and

the consequences of abandoning them” (Moran, slip

op. 9). Thus, when the deception relates to the nature

of the rights discussed in the warnings—if, for ex-

ample, an officer tells a suspect that the suspect’s

a suspect with information that Miranda does not require the

officer to convey. See page 25, infra. The voluntariness

inquiry looks not to the extent of the suspect’s knowledge, but

to whether his choice was the product of coercion.

25

statement actually cannot be used against him

resulting waiver would be invalid.

However, when the deception concerns facts ex-

traneous to the information conveyed in the warn-

ings—and does not amount to the equivalent of coer-

cion—the deception cannot invalidate the suspect’s

waiver. In Moran, for example, the Court concluded

that even if the police officers deliberately withheld

from the defendant the fact that the defendant’s at-

torney had telephoned the police station, their conduct

did not constitute “the kind of ‘trick[ery]’ that can

vitiate the validity of a waiver’ (Moran. slip op. 9

(citation omitted) ). That is because the officers’ con-

duct did not affect the defendant’s awareness of the

information necessary to understand his rights—the

information conveyed in the Miranda warnings. See

ibid. (“‘ ‘deliberate or reckless’ withholding of infor-

mation * * * is only relevant to the constitutional

validity of a waiver if it deprives a defendant of

knowledge essential to his ability to understand his

rights and the consequences of abandoning them’’).

In the present case, the agents failed to supply

respondent with information—the topics of the pro-

posed interrogation—that Miranda did not require

them to provide. The limits upon a police officer’s

obligation to provide information to a suspect would

be meaningless if the failure to supply extraneous in-

formation could constitute deception that vitiates a

suspect’s waiver. Instead, because “respondent’s

voluntary decision to speak was made with full aware-

ness and comprehension of all the information

Miranda requires the police to convey, the waiverT]

[was] valid” (Moran, slip op. 9-10) .™

any

" Although this case concerns a situation in which the

claim of deception is based upon law enforcement officers’

26

For the foregoing reasons, it is clear that responc-

ent acted with an awareness of both the nature of his

privilege against compelled self-incrimination and the

consequences of waiving that privilege when he volun-

tarily waived his Miranda rights prior to the March

30 interview. Respondent’s waiver therefore was

valid and the Colorado Supreme Court erred in con-

cluding that Miranda required the suppression of

respondent’s voluntary statements.

Finally, to the extent that the lower court’s ruling

is based on due process considerations, the agents’

failure to provide information to a suspect, the same test

should apply in determining whether an affirmative misrepre-

sentation by a law enforcement officer undermined the validity

of a suspect’s waiver. For example, an affirmative misrepresen-

tation concerning the subjects of the proposed interrogation

would not vitiate a suspect’s waiver because it would affect

only the suspect’s calculation of his self-interest, and could

not affect his comprehension of his right to remain silent.

See, e.g., Commonwealth v. Forde, 466 N.E.2d 510, 511-

512 (Mass. 1984) (police officer’s false statement that the de-

fendant’s fingerprints had been found on dead body did not

vitiate Miranda waiver); State v. Woods, 117 Wis. 2d 701,

723-729, 345 N.W.2d 457, 468-471 (1984) (waiver not in-

validated by police officer’s misrepresentation of evidence

against defendant) ; 1 W. LaFave & J. Israel, Criminal Proce-

dure §6.9(c), at 528-529 (1984); but see White, Police

Trickery In Inducing Confessions, 127 U. Pa. L. Rev. 581,

611-614 (1979) (arguing that misrepresentation of the

charges under investigation should invalidate a Miranda

waiver). The basic constitutional standard governing police

interrogation techniques—the Due Process Clause—already

regulates the use of deception by police officers (see pages 27-

28, infra). Miranda should not be read to impose additional

restrictions upon the use of this interrogation technique by

police officers as long as the deception does not affect the

suspect’s ability to understand and act upon his right to de-

cline to answer a police officer’s questions.

pds ae a

failure to inform respondent of the crimes that would

be the subject of the interrogation plainly did not

deprive respondent of the fundamental fairness guar-

anteed by the Due Process Clause of the Fourteenth

Amendment. The agents simply failed to provide re-

spondent with information that might have affected

his calculation of whether his self-interest weighed

in favor of making a voluntary statement. That con-

duct “falls short of the kind of misbehavior that so

shocks the sensibilities of civilized society as to war-

rant a federal intrusion into the criminal processes of

the States” (Moran, slip op. 19). In United States v.

Washington, supra, the defendant—in addition to

claiming a violation of Miranda—argued that it

would be “fundamentally unfair to elicit incriminat-

ing testimony from a potential defendant without

first informing him of his target status” because this

additional information would “alert the witness more

pointedly” and assist him in deciding whether to in-

voke his privilege against compelled self-incrimination

(431 U.S. at 190 n.6). The Court held that “Tt)his

line of argument simply restates respondent’s claims

under the Self-Incrimination Clause and is rejected

for the same reasons,” noting that there had been no

showing of “any governmental misconduct which

undermined the fairness of the proceedings” (ibid.).

The same conclusion is appropriate here.

Even if the police withheld information as part of

a plan to deceive respondent, their conduct would not

amount to a violation of due process. The Due Proc-

ess Clause does not prohibit all uses of deception in

connection with police interrogation. Frazier vy. Cupp,

394 U.S. 731, 737, 739 (1969); Miller v. Fenton, No.

83-5530 (3d Cir. June 26, 1986). slip op. 19-20; 1 W.

LaFave & J. Israel, supra, §6.2(c), at 446-447: see

2R

a

also Spano v. New York, 360 U.S. 35 (1959) (potice

deception combined with other factors found to con-

stitute interrogation technique violative of due proc-

ess). The inquiry is whether the statements were ob-

tained by “ ‘techniques and methods offensive to’”’

fundamental fairness, under “circumstances in which

the suspect clearly had no opportunity to exercise ‘a

free and unconstrained will.’ ”’ Oregon v. Elstad, slip

op. 5 (citation omitted); see also Miller v. Fenton,

No. 84-5786 (Dec. 3, 1985), slip op. 5, 12. The trial

court in this case specifically found that respondent’s

statements were voluntary and not the product of 1m-

proper coercion (Pet. App. 3A), and there is no evi-

dence to the contrary. Therefore, the admission of

the statements into evidence is not barred by the Due

Process Clause.

CONCLUSION

The judgment of the Supreme Court of Colorado

should be reversed with respect to the issue on which

this Court granted certiorari.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN 8S. TROTT

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ANDREW J. PINCUS

Assistant to the Solicitor General

JULY 1986

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