# Reply Brief — Moran v. Burbine > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0309%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1985 - **Citation:** 471 U.S. 1098 ## Text BEST AVAILABLE COPY Supreme Court, US. 2 ae ae: NOV 5 185 No. 84-1485 In The Supreme Court of the United States October Term, 1985 JOHN MORAN, Petitioner, BRIAN K. BURBINE, Respondent. PETITIONER’S REPLY BRIEF IN SUPPORT OF WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT O ARLENE VIOLET Attorney General of the State of Rhode Island Constance L. Messore Special Assistant Attorney General 72 Pine Street Providence, Rhode Island 02903 (401) 274-4400 Attorne Us jor the Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333 TABLE OF CONTENTS Pages yy) PF Te Btig se i gy Fo ARGUMENTS: I. THE RESPONDENT’S ARGUMENT THAT Tl. IV. HIS THREE CONFESSIONS SHOULD BE SUPPRESSED SOLELY ON THE GROUND THAT THE POLICE LIED TO OR DECEIVED HIS LAWYER HAS NO FACTUAL OR LEGAL BASIS. WWW... RESPONDENT IMPROPERLY ARGUES THAT HE IS ENTITLED TO MORE IN- FORMATION THAN THAT PRESCRIBED BY THE COURT IN MIRANDA v. ARI- ZONA, IN ORDER TO VALIDLY WAIVE HIS MIRANDA RIGHTS. ......... RESPONDENT MISCONCEIVES HIS FIFTH AND SIXTH AMENDMENT RIGHT TO COUNSEL. .......... wen RESPONDENT WAS NOT DENIED THE FUNDAMENTAL FAIRNESS GUARAN- TEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH Sc EE TE ities GUT UUEII sxihadcnnciiiadentacienencetonnmaensdaaialaiaiaaaalehadiaie 8 il TABLE OF AUTHORITIES CASES Pages Brewer v. Williams, 430 U.S. B87 (1977) eccccccccecccecnceeneene «= 8 Brows v. Tilaseots, 422 U.S. SIO (VGTD) nanan cane caeemecssnnnee 2 Darwin v. Connecticut, 391 U.S. 346 (1968) 00D Escobedo v. [llimots, 378 U.S. ATS (VIG) nance 6 Fare v. Michael C., 442 U.S. TOT (1979) cnc aneecececececonenesvvensosenenee 3 Michigan v. Tucker, 417 U.S. 483 (1974) — 4 Miranda v. Arizona, 384 U.S. 436 (1966) 2, 3, 4, 5, 6,8 North Carolina v. Butler, 441 U.S. 369 (1979) 0 8 Rhode Island v. Innis, 446 U.S. 291 (1980) 00 8 United States v. Gouveia, 104 S.Ct 2292 (1984) 6,7,8 CONSTITUTION U.S. Constitution ss FT passim Amendment VI _.. Sir ne uty 5, 6, 7,8 Amendment XIV (Due Process) 0000 8 MISCELLANEOUS Kamisar, *‘Brewer v. Williams, Massiah and Miranda: What is Interrogation? When does it matter? in Police Interrogation and Confessions I. THE RESPONDENT’S ARGUMENT THAT HIS THREE CONFESSIONS SHOULD BE SUPPRESSED SOLELY ON THE GROUND THAT THE POLICE LIED TO OR DECEIVED HIS LAWYER HAS NO FACTUAL OR LEGAL BASIS. Respondent’s first argument (Respondent’s Brief [hereinafter R.B.] 11-21) is that this Court need not re- solve the question presented in the petition for writ of certiorari because respondent’s confession should be sup- pressed on the ground that ‘‘the police lied [to] or de- ceived [respondent's] lawyer’’ (R.B. 9). This argument lacks both factual and legal support. First, notwithstanding respondent’s repeated asser- tions that the police officers acted dishonestly (see, e.g., R.B. 9, 15, 20), there is no finding below that the police intentionally deceived respondent’s attorney. The Su- preme Court of Rhode Island observed that the state trial >? justice found ‘‘no collusion or conspiracy’? among the police to conceal respondent trom his attorney (Pet. App. 50). Even the court of appeals concluded only that the police acted ‘‘deliberate[ly| or reckless{ly]’’ (td. at 15 (emphasis added) ). But, assuming arguendo, that the police officers did intentionally deceive respondent’s attorney, that fact by itself does not establish a violation of respondent’s con- stitutional rights. This Court never has held that the Constitution supplies a remedy whenever the police act in subjective bad faith. It is elementary that government conduct must infringe a right protected by the Constitu- tion before that conduct can be held to violate the Consti- tution, and respondent does not oint to any authority 1 supporting his view that a misrepresentation by a govern- ment officer amounts to a per se constitutional violation requiring the suppression of lawfully-obtained evidence.' He bases his position solely upon the fact that a defense attorney is an officer of the court, but that truism pro- vides absolutely no support for the conclusion that any misrepresentation by a police officer to a defense attorney constitutes a constitutional violation.2 Moreover, as dis- cussed below, the police officers were not required to al- low the attorney to talk to respondent. The officers’ sub- jective intent therefore is completely irrelevant. 1 Respondent relies upon this Court’s decision in Brown v. Ilinois, 422 U.S. 590 (1975), but in that case the Court held that the administration of Miranda warnings did not render admis- sible the statement of a defendant who previously had been arrested in violation of the Fourth Amendment. The flaw in respondent's analogy is that respondent cannot show a prior constitutional violation equivalent to the arrest of the defend- ant in Brown. There accordingly is no basis for suppressing the confessions here. Even amicus American Bar Association acknowledges in its brief supporting respondent (R.B. 9 n.5) that the subjective intent of the police is not revelant in determining whether re- spondent’s confessions should be suppressed. 2 The lawyer, of course, is not a party to the proceeding, and any right she might have had not to be deceived is not in issue. 3 Respondent cites (R.B. 20-21) Kamisar, ‘Brewer v. Williams, Massiah and Miranda: What is ‘Interrogation’? When Does It Matter?,” in Police Interrogation and Confessions, (1980), but he fails to note that the author rejects the rule espoused by respondent (id. at 220-224). II. RESPONDENT IMPROPERLY ARGUES THAT HE IS ENTITLED TO MORE INFOR- MATION THAN THAT PRESCRIBED BY THE COURT IN MIRANDA v. ARIZONA IN ORDER TO VALIDLY WAIVE HIS MIRANDA RIGHTS. Respondent does not dispute that the police read him the warnings prescribed by this Court in Miranda v. Arizona, 384 U.S. 436 (1966), and he does not contend that he failed to understand those warnings.* He asserts instead (R.B. 21-26) that the waivers of his Miranda rights were invalid because he was not supplied with in- formation relevant to his decision whether to waive his rights. However, the inquiry in assessing the validity of a Miranda waiver is whether the suspect understood that he had a right to refuse to answer the officer’s ques- tions and a right to counsel. /’are v. Michael C., 442 U.S. 707, 725 (1979); North Carolina v. Butler, 441 U.S. 369, 374-375 (1979). It simply is immaterial that some addi- tional piece of information might make a suspect more or less willing to waive his rights. Indeed, if the police were required to supply suspects with all such information, police interrogation would be climinated as a weapon in the fight against crime. A_ police officer would almost never be able to obtain a valid waiver because it would be virtually impossible for the officer to ascertain which information he would be required to provide to the suspect. 4 Respondent refers to his lack of education and unfamiliarity with the criminal justice system (R.B. 22, 23-24), but he nowhere claims that he did not understand. the warnings. 4 III. RESPONDENT MISCONCEIVES HIS FIFTH AND SIXTH AMENDMENT RIGHT TO COUN- SEL. Respondent and amici also argue that the confes- sions should be suppressed on the somewhat different theory that the police officers’ actions violated respon- dent’s right to counsel under the Fifth and Sixth Amend- ments because the officers interfered with the relation- ship between respondent and h'‘s attorney. These argu- ments are found upon a complete misconception of the relevant Fifth and Sixth Amendment rights. In fact, de- fense counsel has no constitutionally-guaranteed right of access to a suspect prior to the commencement of judicial proceedings against the suspect. a. The ‘right to counsel’? announced in Miranda does not flow directly from the Fifth Amendment; it is a ‘*procedural safeguard’? designed to protect a suspect’s Fifth Amendment privilege against compelled self-inerim- ination. See Michigan v. Tucker, 417 U.S. 433, 444 (1974). The scope of the ‘‘right’’ accordingly must be deter- mined by reference to the privilege against self-incrimina- tion that is its only souree. The Miranda Court stated that a suspect ‘‘has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege [against self- incrimination]|*’ established in that case (384 U.S. at 471). Equally significant, however, is the principle that a sus- pect may waive his Miranda rights without consulting an attorney (Jd. at 475, 479). Indeed Miranda plainly does not guarantee a suspect the right to consult with counsel in all circumstances, but recognizes the right only in the context of custodial interrogation. Accordingly, a suspect 5) who requests counsel need not be provided with an attor- ney if the police decide to terminate the interrogation (id. at 474). Thus, the Fifth Amendment ‘‘right to coun- sel’’ is limited to the circumstance where a suspect re- quests the assistance of counsel in connection with police interrogation and the police elect to continue the interro- gation.° The argument that respondent should have been per- mitted to consult with counsel or should have been in- formed of the attorney’s inquiry is grounded in the notion that the Fifth Amendment right to counsel during police interrogation is as broad as the Sixth Amendment right to counsel that attaches only upon the commencement of adversary proceedings (United States v. Gouveia, 104 S. Ct. 2292 (1984)). HLlowever, as discussed above, the Fifth Amendment right is quite limited, applying only where needed to protect the privilege against self-inerim- ination. The justification for requiring the police to per- 5 Here, respondent was informed that he had a right to remain silent and a right to consult with counsel and decided that he did not want the assistance of an attorney. Amicus argues that the attorney’s inquiry should be construed as an assertion of respondent's Miranda rights (see ABA R.B. 12-13). However, Miranda leaves to the suspect, not the lawyer, the decision whether to assert these rights, and it is plainly correct in doing so, since the purpose of requiring warning and waiver regard- ing counsel is to facilitate assurance that the suspect’s will has not been overborne—A matter as to which his attorney’s wish- es are entirely irrelevant. 6 The broad Fifth Amendment right to counsel advocated by respondent and amici appears to be an attempt to avoid this Court’s previous decisions construing the Sixth Amendment right to counsel. However, it is difficuit to see why a Fifth Amendment right to counsel divorced from the privilege against self-incrimination would be any broader in scope than (Continued on following page) 6 mit an attorney to consult with a suspect prior to police interrogation appears to be that the suspect is entitled to the advice of the attorney in deciding whether to waive his Miranda rights. Yet a suspect who has a lawyer on retainer or whose family has the presence of mind to retain an attorney probably is less likely than an unrepre- sented suspect to need such assistance of counsel; the fortuitous intervention of an attorney is thus an irra- tional dividing line for determining whether the assist- ance of counsel is needed to protect the privilege against self-incrimination. If consultation with an attorney is warranted to protect the privilege in this context, it is difficult to see why the advice of counsel should not be a prerequisite to obtaining a waiver of Miranda rights in all situations. Since Miranda itself indicates that consul- tation with an attorney is wot necessary, there is no basis for imposing such a requirement in the present context. This result does not mean that a suspect can be involuntarily subjected to prolonged incommunicado in- terrogation; it simply places suspects who happen to have lawyers on the same footing as suspects without lawvers. The suspect retains the authority to end an interrogation (Continued from previous page) the Sixth Amendment right to counsel set forth in the text of the Constitution. Relying on a footnote in Miranda (see 384 U.S. at 465 n.35), that in turn refers to Escobedo v. Illinois, 378 U.S. 478 (1964), amicus American Bar Association asserts that “the Mi- randa Court viewed police interference with communications between the suspect and counsel as unconstitutional” (R.B. 13). However, this Court has held that Escobeclo in fact rested upon the Fifth Amendment privilege against self-incrimination (United States v. Gouveia, 104 S.Ct. at 2298) and the ABA’s contention thus cannot be supported on the rational it ad- vances. 7 at any time simply by invoking his Fifth Amendment rights. Moreover, the Federal Government, the States, and local government entities remain free to adopt rules governing attorney-client access during the pre-indictment ‘period. b. Despite this Court’s determination in United States v. Gouveia, 104 8S. Ct. at 2296, that ‘‘the [Sixth Amendment] right to counsel attaches only at or after the initiation of adversary judicial proceedings,’’ respon- dent and amici argue that the police officers’ actions vio- lated respondent’s Sixth Amendment rights. They assert that Gouveia concerned only appointed counsel and that where a suspect has an existing attorney-client relation- ship, the Sixth Amendment protects that relationship at all stages of a criminal proceeding.’ Although this Court’s decisions concerning the Sixth Amendment principally relate to the right to appointed counsel, the Court has not distinguished between ap- pointed and retained counsel. Aside from their asser- tions that the Sixth Amendment should provide some addi- tional protection for existing attorney-client relationships, respondent and amici never articulate any justification for their position. This Court has concluded that ‘‘the ‘core purpose’ of the counsel guarantee is to assure aid at trial’’ or at certain ‘‘ ‘critical’ pre-trial proceedings”’ (United States v. Gouveia, 104 S. Ct. at 2298). The Amendment thus does not provide any generalized pro- tection for the attorney-client relationship so as to confer 7 Amicus American Bar Association recognizes that under this Court’s decision in Gouveia the Sixth Amendment right to coun- sel does not apply to pre-indictment interrogations such as the interrogations at issue here (see R.B. 13). 8 special benefits upon suspects who happen to have an ongoing relationship with an attorney.® IV. RESPONDENT WAS NOT DENIED THE FUNDAMENTAL FAIRNESS GUARANTEED HIM BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT. Finally, respondent asserts (R.B. 36-40) that the po- lice officers’ conduct deprived him of the fundamental fairness guaranteed by the Due Process Clause of the Fourteenth Amendment. He argues that even if his con fessions were voluntary and even if the police officers did not violate Miranda’s prophylactic rules, the admission of the confessions into evidence was unfair. However, the rules set forth in Miranda were designed to ensure fair- 8 Respondent at first appears to argue (R.B. 30-32) that the Sixth Amendment right to counsel applies because an interro- gation constitutes a critical stage of the criminal proceedings, but he later states that he “is not asking this Court to hold that the Sixth Amendment right to counsel attaches when the police subject a defendaiit to custodial interrogation” (R.B. 32). In any event, Gouveia makes clear that the right does not attach to preindictment interrogations such as the interrogations in the present case because respondent was not confronted with “ ‘the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law’ ” (104 S.Ct. 2298 (citation omitted)). Respondent asserts (R.B. 32-33) that this Court’s finding of a Sixth Amendment violation in Brewer v. Williams, 430 U.S. 387 (1977), rested in part on the fact that the police had rep- resented to tne defendant's !awyer that the defendant would not be interrogated. However, the Court several times noted that the defendant's Sixth Amendment right to counsel had at- tached because judicial proceedings nad been initiated (see 430 U.S. at 398-399, 401). The inapplicability of the Sixth Amendment right to counsel in circumstances like the instant case was clearly recognized in Rhode Island v. Innis, 446 U.S. 291, 300 n.4 (1980), and nothing in the Court's later jurispru- dence provides any ground for altering that conciusion. 9 ness in police interrogations; it seems most unlikely that the officers’ conduct could be fundamentally unfair if the confession was obtained in compliance with Miranda. Respondent relies upon Darwin v. Connecticut, 391 U.S. 346 (1968). However, the defendant in that case was questioned for two entire days and ‘‘on three separate occasions sought and was denied permission to communi- cate with the outside world’’ (391 U.S. at 349). The Court reversed the conviction on the ground that the de- fendant’s confession was not voluntary (ibid.). Here, by contrast, the courts below specifically found that respon- dent.’s confession was voluntary (Pet. App. 116, 67, 37). Darwin accordingly supplies no basis for finding a due process violation in this case. ray CONCLUSION For the foregoing reasons, and for such other rea- sons as appear in his Brief, the Petitioner prays that the judgment of the First Cireuit Court of Appeals should be reversed. j Respectfully submitted, JOHN MORAN sv His Attorneys ARLENE VIOLET Attorney General of the State of Rhode Island Constance L. Mrssore Special Assistant Attorney General 72 Pine Street Providence, Rhode Island 02905 (401) 274-4400 lttorneys for the Petitioner November 4, 1985 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0309%3A08. Public record. Not legal advice.