Amicus Curiae Brief — Moran v. Burbine

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JUN 22 1985 |

No. 84-1485

PELAMOPR 1 STEVAS,

CLERK

IN THE ae:

Supreme Court of the Anited States

OCTOBER TERM, 1984

JOHN MORAN,

Petitioner,

v.

BRIAN K. BURBINE,

Respondent.

ON WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS,

FIRST CIRCUIT

BRIEF AMICI CURIAE OF

AMERICANS FOR EFFECTIVE LAW

ENFORCEMENT, INC.

JOINED BY

THE INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

AND THE

LEGAL FOUNDATION OF AMERICA,

IN SUPPORT OF THE PETITIONER

(List of Counsel on Inside Front Cover)

Pandick Midwest, Inc., Chicago * 454-7600

BEST AVAILABLE COPY "Saran

Of Counsel:

Davip Crump, Esq.

Professor of Law

South Texas College of Law

Houston, Texas 77002

DANIEL B. HALES, Esq.

Peterson, Ross, Schloerb

and Seidel

President,

Americans for Effective

Law Enforcement, Inc.

Chicago, Illinois 60601

WILLIAM C. SUMMERS, ESQ.

Supervising Attorney

International Association of

Chiefs of Police, Inc.

13 Firstfield Road

Gaithersburg, Maryland

20878

Frep E. INBAU, Esq.

John Henry Wigmore

Professor of Law Emeritus

Northwestern University

School of Law

Chicago, Illinois 6061 1

WayYNE W. SCHMIDT, Esq.

Executive Director

Americans for Effective

Law Enforcement, Inc.

501 Grandview Drive

Suite 209

South San Francisco

California 94080

JaMES P. MANAK, Esq.

General Counsel

Americans for Effective

Law Enforcement, Inc.

33 North LaSalle Street

Suite 2108

Chicago, Illinois 60602

Counsel for Amici Curiae

i

TABLE OF CONTENTS

AEST A

ECE ee

I. THE FIFTH AMENDMENT _ SELF-

INCRIMINATION CLAUSE AND SIXTH

AMENDMENT RIGHT TO COUNSEL DO

NOT REQUIRE SUPPRESSION OF THE RE-

SPONDENT’S CONFESSIONS. ..........0ccccccesceeee:

ESET

il

TABLE OF AUTHORITIES

Cases

Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232

(1977) ..ceccscesassessvsnsensesenssnssssncensnssasensncsncenensonsnnssees®

Burbine v. Moran, 589 F.Supp. 1245 (D.R.L.

19B4)...c.cececccecorsssscereseensessscscnenesscnsnensosnssssnensssasonsees

Burbine v. Moran, 753 F.2d 178 (lst Cir. 1985) .....

Commonwealth v. Sherman, 389 Mass. 287, 450

N.E.2d 566 ( 1983 ).....ccecceceeeeeseereeees aattaaiaanaannaen

Fuentes v. Moran, 733 F.2d 176 (Ist Cir. 1984)......

Michigan v. Mosley, 423 US. 96, 96 S.Ct. 321

( 1975) ..eccccerescscnssesensnesnsenenssnsensnssnsensscsnsessnenssnssesees

People v. Stanley, 15 N.Y.2d 30, 203 N.E.2d 475,

255 N.Y.S.2d 74 (1964) ...-eessessereersresesensnsensnsnnens

State v. Hill, 26 Ariz. App. 37, 545 P.2d 999

( 1976) ...ececcscossssssssesecssenssnssvenesncasensensnsanensensensnoreeee®

United States v. Edwards, 366 F.2d 853 (2nd Cir.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

JOHN MORAN,

Petitioner,

v.

BRIAN K. BURBINE,

Respondent.

ON WRIT OF CERTIORARI TO THE

U.S. COURT OF APPEALS,

FIRST CIRCUIT

BRIEF AMICI CURIAE OF

AMERICANS FOR EFFECTIVE LAW

ENFORCEMENT, INC.

JOINED BY

THE INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

AND THE

LEGAL FOUNDATION OF AMERICA,

IN SUPPORT OF THE PETITIONER

This is filed pursuant to Rule 36 of the Supreme Court

Rules. Consent to file has been granted by Hon. Constance L.

Messore, Special Assistant Attorney General, State of Rhode

Island, Counsel for Petitioner, and Robert Mann, Esq., Counsel

for Respondent. Letters of Consent of both parties have been

filed with the Clerk of this Court.

2

INTEREST OF AMICI

Americans for Effective Law Enforcement, Inc. (AELE),

as a national not-for-profit citizens organization, is interested in

establishing a body of law making the police effort more

effective, in a constitutional manner. It seeks to improve the

operation of the police function to protect our citizens in their

life, liberties and property, within the framework of the various

State and Federal Constitutions.

AELE has previously appeared as amicus curiae sixty

times in the Supreme Court of the United States, and thirty-

three times in other appellate courts, including the Federal

District Courts, the Circuit Courts of Appeal and various state

courts, such as the Supreme Courts of California, Illinois, Ohio

and Missouri.

The International Association of Chiefs of Police, Inc.

(IACP), is the largest organization of police executives and line

officers in the world, consisting of more than 12,600 members in

62 nations. Through its programs of training, publications,

legislative reform, and amicus curiae advocacy, it seeks to make

the delivery of vital police services more effective, while at the

same time protecting the rights of all our citizens.

The Legal Foundation of America (LFA) is a nonprofit

corporation supporting the operations of a public interest law

firm. Among other goals, it seeks to preserve a rational

criminal justice system, in which adjudications of guilt or

innocence are reliable rather than haphazard. The Founda-

tion’s attorneys have previously appeared as amicus curiae in

this Court to urge this view. All litigation undertaken by the

Foundation is approved by its Board of Trustees, the majority

of whom are attorneys. LFA does not accept private fees and is

supported by grants from the public.

Amici well know the problems faced by police officers in

their good faith attempts to obtain confessions in criminal cases.

The state of this intricate complex of rules compels these

organizations to speak on behalf of law enforcement officers in

this case.

enna yy near emer

3

ARGUMENT

I.

THE FIFTH AMENDMENT SELF-INCRIMINATION

CLAUSE AND SIXTH AMENDMENT RIGHT TO

COUNSEL DO NOT REQUIRE SUPPRESSION OF THE

RESPONDENT’S CONFESSIONS.

Americans for Effective Law Enforcement has been privi-

leged to file many amicus curiae briefs with this Court. In

several of them, as in the present one, it has been joined by the

International Association of Chiefs of Police, various state

associations of chiefs of police, and the Legal Foundation of

America. Those briefs have presented an analysis of the

relevant case law and offered suggestions to the Court for

decisions that would aid rather than unduly hinder effective law

enforcement, and without impinging upon basic constitutional

protections. In the present brief, we will not undertake an

extended analysis of the case law, but will confine our brief to

the law enforcement impact of the issues raised by the parties.

Amici urge this Court to reverse the holding of the First

Circuit Court of Appeals that the failure of police to inform the

respondent, in custody on a breaking and entry charge, that an

attorney, contacted by respondent’s sister, had telephoned to

offer her legal services, vitiated respondent’s waiver of counsel

at an interrogation regarding an unrelated murder. The

telephone call to the Cranston, Rhode Island, police station

pertained to a breaking and entry committed in that city, but

while in custody for that offense the respondent became a

Suspect in a murder committed in Providence, Rhode Island,

about which its police came to question respondent in Cranston.

The latter fact was unknown to respondent’s sister or the

attorney she had contacted.

To rule, as did the Circuit Court, that a telephone call from

an attorney ( whose services had not even been requested by the

arrestee) regarding a particular offense, forecloses the police

4

from attempting to question a consenting arrestee about an

unrelated crime of murder, presents an unwarranted, intoler-

able obstacle to the police in the performance of an important

function in the protection of the public welfare and safety. This

would mean that a person in custody of local police on a single

charge could never be questioned by the FBI or any other

police agency regarding an unrelated offense or offenses, simply

because an attorney selected by an arrestee’s friend or relative

had contacted the police in relation only to the offense for

which the arrest had been made.

Amici know from our experience and studies in the law

enforcement field that many offenders have been convicted of

prior, unrelated crimes, and, also, that many lesser offenders

have committed multiple unrelated crimes. In many instances

criminal offenders are drifters or transients, persons who have

no roots in the community where they have been arrested. The

police frequently have considerable difficulty locating suspected

persons and must seek an interview whenever their where-

abouts are known, and often their presence in the area is for a

short period of time.

Jailhouse interrogations, therefore, are not uncommon, and

are very necessary. In the instant case, for example, had the

Providence police waited until the respondent had been re-

leased from custody in Cranston, he may have gone to another

area or state, perhaps never to be located again. In murder case

investigations in particular, the police frequently encounter

offenders who very probably would repeat such crimes.

Presumably the attorney selected by respondent’s sister

would have cautioned respondent against giving the Providence

police a statement had the attorney been aware of the murder

investigation. The fact remains, however, that neither the

attorney nor the sister knew that respondent was a suspect ip

that case. The sister “had no inkling at that time that her

brother had been implicated in [a murder].” “Her sole concern

oT

was about the break-in.” Burbine v. Moran, 589 F.Supp 1245,

at 1248. Moreover, the Cranston police themselves had no

suspicion as to the murder until after respondent had been

taken into custody for the breaking and entry.

We also wish to call attention to the fact that there is no

indication in the record or in the First Circuit Court’s opinion,

753 F.2d 178 (1985), to suggest that the Providence police

knew of the attorney’s phone call to the Cranston police station.

The First Circuit has adopted a per se rule against inter-

rogation of an inmate by any officers, from any jurisdiction, or

for any offense which may have occurred at any time, so long as

the suspect remains in custody and an attorney is seeking to

contact him. In Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct.

321, 326 (1975), this Court cautioned that:

. a blanket prohibition against the taking of voluntary

statements Or a permanent immunity from further inter-

rogation, regardless of the circumstances, would transform

the Miranda safeguards into wholly irrational obstacles to

legitimate police investigative activity, and deprive sus-

pects of an opportunity to make formal and intelligent

assessments of their interests.

Coincidentally, Mosley also involved a confession for an

offense unrelated to the suspect’s incarceration and his right to

remain silent regarding the offense for which he was arrested.

The First Circuit Court’s holding not only constitutes a

blanket prohibition upon the police and the creation of immu-

nity to an arrestee, but it also has the effect of precluding him

from exercising his right to make an “intelligent assessment” of

his own interest. The possible abuses of such a rule are not

difficult to envision. For example, the simple notification to the

police or the publication for their attention of a list of ai the

clients represented by an attorney or group of attorneys could

effective'y prevent the police from ever questioning a suspect in

investigations totally unrelated to the offense for which an

arrest has been made.

6

Amici suggest that if the First Circuit’s rule is upheld, it

would be an unwarranted extension of Brewer v. Williams, 430

U.S. 387, 97 S.Ct. 1232 (1977). Defendant Williams was

interrogated after appearance of counsel about the very crime

for which he was arrested, the abduction of a child. That

interrogation was by a Des Moines detective charged with

investigating the offense giving rise to William’s custody. The

Williams rationale should not be extended to officers of another

agency who might interview a suspect about an unrelated

crime. Even when a person has been indicted, the police are

not prohibited from questioning him regarding another offense.

People v. Stanley, 15 N.Y.2d 30, 203 N.E.2d 475 (1964);

United States v. Edwards, 366 F.2d 853 (2d Cir. 1966); State v.

Hill, 26 Ariz. App. 37, 545 P.2d 999 (1976). The state cases

cited in support of the First Circuit’s holding (at 753 F.2d 186-

187) with the exception of Commonwealth v. Sherman, 389

Mass. 287, 450 N.E.2d 566 (1983), did not involve unrelated

crimes; their holdings do not apply in the instant case.

The First Circuit Court relied on Fuentes v. Moran, 733

F.2d 176 (1st Cir. 1984), not on Brewer v. Williams, supra.

Nevertheless, the opinion below is an extension of Brewer v.

Wiiliams, and we believe that to the extent the end result may

be determined by Fuentes, that decision should be disapproved

by this Court by affirming the decision of the Rhode Island

Supreme Court.

>

CONCLUSION

The ruling of the First Circuit Court in this case is an

unwarranted and intolerable one, and we urge that it be set

aside. We do so even if any credence is accorded the allegation

that the Cranston police had misled or tricked the attorney who

called, for most certainly the Providence police should not be

penalized for any such misconduct. The exclusionary rule

should not immunize the guilty from all other prosecutions.

Nor should it be used as a device to permanenily immunize

clients—real or imagined—from all police interrogation con-

tacts in the future. Such a distortion was surely not con-

templated by this Court when it adopted the prophylactic rule

of Miranda.

Respectfully submitted,

Of Counsel: Frep E. INBAU, Esa.

Davip Crump, Esa. John Henry Wigmore

Professor of Law Professor of Law Emeritus

South Texas College of Law Northwestern University

Houston, Texas 77002 School of Law

Chicago, Illinois 6061 1

DanIEL B. HALEs, Esa. Wayne W. SCHMIDT, Esa.

Peterson, Ross, Schloerb Executive Director

and Seidel Americans for Effective

President, Law Enforcement, Inc.

Americans for Effective 501 Grandview Drive

Law Enforcement, Inc. Suite 209

Chicago, Illinois 60601 South San Francisco

California 94080

WILLIAM C. SumMERS, Eso. JAMES P. MANAK, Esa.

Supervising Attorney General Counsel

International Association of Americans for Effective

Chiefs of Police, Inc. Law Enforcement, Inc.

13 Firstfield Road 33 North LaSalle Street

Gaithersburg, Maryland Suite 2108

20878 Chicago, Illinois 60602

Counsel for Amici Curiae