Amicus Curiae Brief — Moran v. Burbine

Supreme Court brief1985

Ask Donna

What actually matters in this document.

Text

@) JUL 11 1985

No. 84-1485

ALEXANDER L STEVAS,

j$————_____._ _ iit , we

(fice -Supreme Court, U.S

ee F-

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

JOHN MORAN, RHODE ISLAND DEPARTMENT

OF CORRECTIONS, PETITIONER

Vv.

BRIAN K. BURBINE

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

CHARLES FRIED

Acting Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

ANDREW J. PINCUS

Assistant to the Solicitor General

SARA CRISCITELLI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY (m

}

QUESTION PRESENTED

Whether respondent’s three voluntary confessions,

each of which was preceded by a written waiver of

the rights enumerated in Miranda v. Arizona, 384

U.S. 436 (1966), must be excluded from evidence be-

cause the police did not inform respondent that an

attorney—whom respondent did not request—had

telephoned the police station and volunteered to act

as respondent’s counsel.

(1)

TABLE OF CONTENTS

Interest of the United States ......00..00000000.0.... eT oe

Statement

eel

Summary of argument

Argument:

Respondent’s three voluntary statements were

properly admitted in evidence

A. The police were not required to inform respond-

ent of the attorney’s unsolicited offer of legal

representation in order to obtain an effective

waiver of respondent’s Miranda rights

B. Neither the Sixth Amendment nor respondent’s

right to due process obligated the police to in-

form respondent of the attorney’s telephone

cal.

SRR SIAC SIN ae

TABLE OF AUTHORITIES

Cases:

Beckwith v. United States, 425 U.S. 341 .......0........

Berkemer Vv. McCarty, No. 83-710 (July 2, 1984)..

Blanks v. State, No. 41673 (Ga. June 10, 1985),

summarized, 37 Crim. L. Rep. (BNA) 2249

RE EATER ELIT LE PD

Carter Vv. Garrison, 656 F.2d 68, cert. denied, 455

U.S. 952

eee Pee eee eee ee eee ee rrr rr ee

ee ee ee ee)

EERE EE EEE EER RRR EER Ree

Culombe v. Connecticut, 367 U.S. 568

Dunaway V. New York, 442 U.S. 200

Edwards Vv. Arizona, 451 U.S. 477

Escobedo V. Illinois, 378 U.S. 478

Estelle v. Smith, 451 U.S. 454

(mI)

Cases—Continued: Page

Fare Vv. Michael C., 442 U.S. 707 .................. 13, 16, 18, 24

Fuentes V. Moran, 733 F.2d 176 .........................-.--- 24-25

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

Os a 15

Haynes V. Washington, 373 U.S. 508 .........000.0...... 19, 28

Kirby Vv. Illinois, 406 U.S. 682 .......00..0.00000000.e. ee. 27

Michigan Vv. Mosley, 423 U.S. 96 .....000......000000..... 11, 14, 20

Michigan V. Tucker, 417 U.S. 433 —...000000000000000... 13, 14, 28

Miranda V. Arizona, 384 U.S. 436 0000000. passim

New York v. Quarles, No. 82-1213 (June 12,

I species cate ee a 13, 18, 24, 26

North Carolina v. Butler, 441 U.S. 369 000. 17

North Carolina v. Pearce, 395 U.S. 711 ................. 28

Oregon V. Bradshaw, 462 U.S. 1039 ........000000...... 16, 17, 26

Oregon V. Elstad, No. 83-773 (Mar. 4, 1985) _.13, 14, 20,

21, 23, 28

People v. Smith, 93 Il.2d 179, 442 N.E.2d 1325... 10

Rhode Island v. Innis, 446 U.S. 291 _...000 16, 24

Rechin V. California, 342 U.S. 165 00 28

Schneckloth v. Bustamonte, 412 U.S. 218 19

State v. Beck, 687 S.W.2d 155 0.0... 10

State v. Haynes, 288 Or. 59, 602 P.2d 272, cert.

RE RE Rec 10

State v. Jackson, 303 So.2d 734 10

State v. Jones, 19 Wash.App. 850, 578 P.2d 71 ...... 10

United States Vv. Brown, 569 F.2d 236... 15, 18

United States v. Burger, 728 F.2d 140... 15

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

Ry re I I ecichibitenitencenectccmemesieasetecsencnsninsiacoatieees 15

United States v. Gouveia, No. 83-128 (May 29,

SED schteiccntaiiataianniaciicat ci: FL

United States v. Hall, 724 F. 2d 1055 .. EE ear See 15

United States v. McCrary, 643 F.2d 323 15

United Stutes v. Washington, 431 U.S. 181_..11, 14, 19, 28

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

1298

Constitution: Page

U.S. Const.:

Amend. V (Self-Incrimination Clause) -......... passim

p ese eae RN: 6, 9, 10, 18, 26

Amend. XIV (Due Process Clause) ....6, 9, 10, 26, 27

Miscellaneous:

Kamisar, “Brewer v. Williams, Massiah and

Miranda: What is ‘Interrogation’? When Does

It Matter?,”’ 67 Geo. L.J. 1 (1978) -....0...0000000..... 22

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 84-1485

JOHN MORAN, RHODE ISLAND DEPARTMENT

OF CORRECTIONS, PETITIONER

Vv.

BRIAN K. BURBINE

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The issue in this case is whether respondent’s

knowing and voluntary waivers of his rights under

Miranda y. Arizona, 384 U.S. 486 (1966), were in-

valid because the police did not inform respondent

that an attorney had telephoned the police station

and volunteered to represent respondent if he was

interrogated by the police. This Court’s analysis and

resolution of the question whether a suspect’s waiver

of his Miranda rights is vitiated by the police’s fail-

ure to provide such information is likely to have an

effect upon the conduct of interrogations by federal

law enforcement officers and the admission of volun-

tary statements in federal criminal prosecutions.

(1)

STATEMENT

1. On June 29, 1977, respondent and two asso-

ciates were arrested in Cranston, Rhode Island, on

a charge of breaking and entering. The police offi-

cers obtained respondent’s address and found that it

matched the address of the person who, according to

an informant, was responsible for a murder com-

mitted three months earlier in Providence, Rhode Is-

land. The officers also learned that respondent’s nick-

name was identical to the nickname supplied by the

informant. Respondent was read the Miranda warn-

ings but he refused to sign a waiver form. The offi-

cers obtained statements from respondent’s associates

implicating respondent in the Providence killing.

They then telephoned the Providence police and in-

vited them to the Cranston police station to interro-

gate respondent. Pet. App. 2-3, 48-49; Supp. Tr. 147-

150, 171.’

Several hours later, respondent’s sister telephoned

the Office of the Public Defender to obtain legai as-

sistance for respondent and left a message for the

attorney who was representing respondent on an un-

related charge. The Public Defender’s Office was not

able to reach that attorney, but another attorney in

the office telephoned the Cranston police and stated

that she would represent respondent if the police in-

tended to question him or place him in a lineup. Pet.

App. 3-4, 49-50; Supp. Tr. 71-72, 243-244. The un-

identified person who took the call told the attorney

that the police were “through with [respondent] for

the night.” Pet. App. 4, 50; Supp. Tr. 243-244. The

Public Defender did not know that respondent was a

suspect in the Providence murder, and. was not told

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

hearing conducted by the state trial court.

that Providence police officers were preparing to ques-

tion respondent about the murder (Pet. App. 4, 50).

All of the police officers involved in the interrogation

denied receiving the telephone call (id. at 4, 51).

Respondent neither requested an attorney nor knew

of the Public Defender’s offer to be available (id. at

4, 50).

Less than an hour after the attorney’s telephone

call, the Providence officers began interrogating re-

spondent about the murder. Respondent was advised

of his rights and denied any involvement in the mur-

der. The questioning stopped and respondent was re-

moved from the room. Several minutes later respond-

ent called for the police and said that he wanted to

make a statement. Pet. App. 4-5, 50; Supp. Tr. 152-

154. He again was read the Miranda warnings and

signed a written waiver of his rights. Pet. App. 4-5,

50; Supp. Tr. 23-31, 80-84, 155-160; see Pet. App.

94-95. The waiver form included the statement that

respondent “[did] not want an attorney called or ap-

pointed * * * at this time” (id. at 95). Respondent

then gave an inculpatory statement and signed a

four page confession that itself contained an explicit

waiver of the Miranda rights. Pet. App. 5, 50: Supp.

Tr. 23-31, 80-84; see Pet. App. 96-101.*

Approximately 30 minutes later respondent stated

that he had omitted some information from his state-

ment. He again was read the Miranda warnings,

signed a waiver of his rights, and made a further

statement. Pet. App. 5, 50; Supp. Tr. 33-39, 85-89,

160-163; see Pet. App. 102-106. The next day, re-

spondent waived his rights and made a third inculpa-

* Respondent’s testimony that the officers did not advise him

of his rights and directed him to sign the waiver form (Supp.

Tr. 200-205, 207-209, 211-213) was not credited (Pet. App.

116; see also id. at 5, 30, 50).

tory statement. Pet. App. 5-6, 50; Supp. Tr. 90-96;

see Pet. App. 107-111.

2. a. Respondent moved before trial to suppress

the three confessions. The trial court denied the mo-

tion (Pet. App. 112-117). It noted that respondent

had received the Miranda warnings and signed a

waiver form in connection with each of the three

statements, and concluded that “when [respondent]

signed those waiver forms, * * * he knowingly, in-

telligently, and voluntarily waived his privilege

against self-incrimination. And also his right to

counsel” (id. at 116). The court further stated that

it was “satisfied that during the course of the inter-

rogation, [respondent] was not coerced, he was not

threatened, he was not promised anything in return

for his statements. And the three statements that

were given were in fact given voluntarily” (7ibid.).

The court stated that respondent had “an absolute

constitutional right to request the presence of an at-

torney during the course of * * * interrogation” but

found that respondent “never did in fact request the

services of an attorney” (ibid.). It observed that the

Office of the Public Defender was aware that respond-

ent was in custody but that “it is not the right of the

attorney, it is the right of the defendant to request

a lawyer” (ibid.). Respondent subsequently was con-

victed of first degree murder (id. at 47).

b. The Supreme Court of Rhode Island affirmed

respondent’s conviction by a divided vote (Pet. App.

45-91), rejecting his claim that the confessions should

have been suppressed because they were obtained in

violation of his right to counsel and his privilege

against compelled self-incrimination. The court con-

cluded that “the principles of Miranda place the as-

sertion of the right to remain silent and the right to

counsel upon the accused, and not upon benign third

parties, whether or not they happen to be lawyers”

(id. at 60), and declined to adopt a rule that the

right to counsel can be waived only with the advice

of counsel (id. at 60-63).

The court also rejected the contention that the po-

lice were required to inform respondent of the attor-

ney’s telephone call in order to obtain a knowing and

intelligent waiver of respondent’s rights. The court

found that “[t]he evidence is overwhelming in sup-

port of the trial justice’s finding that [respondent]

was admonished of the right to remain silent and of

his right to retained or appointed counsel. It hardly

seems conceivable that the additional information

that an attorney whom he did not know had galled

the police station would have added significantly to

the quantum of information necessary for the ac-

cused to make an informed decision as to waiver”

(Pet. App. 63-64).

Two justices dissented (Pet. App. 70-91). They

concluded that respondent’s waiver of his rights was

invalid because the police did, not notify him of the

attorney’s availability to serve as his counsel during

the interrogation.

3. a. Respondent’s application for a writ of habeas

corpus in the United States District Court for the

District of Rhode Island was denied (Pet. App. 23-

43). The district court found that respondent had

been advised of his constitutional rights and that he

had knowingly and voluntarily waived those rights

(id. at 36-37, 39-40). The court also found “no sug-

gestion * * * of police brutality, or of coercion, psy-

chological 2 ress, illicit inducement, intimidation, or

the like” (7d. at 37). Finally, the court rejected re-

spondent’s claim that the officers’ failure to inform

respondent of the attorney’s telephone call vitiated

respondent’s Miranda waivers. Observing that re-

—_c__eewaQaLE__

spondent was aware of his right to counsel and fa-

miliar with the Office of the Public Defender by vir-

tue of his ongoing relationship with the office, the

court concluded that “the police ‘were hardly with-

holding vital information’ in failing to mention [the

attorney’s] call” (id. at 39).°

b. The court of appeals reversed (Pet. App. 1-22),

concluding that respondent’s waiver of his Miranda

rights was not knowing or voluntary. The court

rested its decision upon three factors (id. at 13):

“the withholding from [respondent] of the fact that

[the attorney] had called; the withholding of the

fact that [the attorney] had been told there would be

no questioning or lineup that night; and the conduct

of the police.” The court first found that respondent

had an ongoing professional relationship with the

Public Defender’s Office because he was represented

by that office in a pending case (id. at 10-11 n.3).

The court stated that the police were required to

provide respondent with the information concerning

the telephone call because the information could have

affected respondent’s decision whether to waive his

rights (id. at’14-15). It extensively reviewed the

facts surrounding the failure to provide this infor-

mation to respondent (id. at 15-19), finding that re-

spondent was not informed because of the ‘deliberate

or reckless irresponsibility of the person who re-

* Respondent also alleged violations of his Sixth Amend-

ment right to counsel and his Fourteenth Amendment right

to due process. The district court rejected the Sixth Amend-

ment claim (Pet. App. 33) on the basis of this Court’s re-

affirmation in United States v. Gouveia, No. 83-128 (May 29,

1984), slip op. 6, that “the right to counsel attaches only at or

after the initiation of adversary judicial proceedings against

the defendant.” The district court found no due process viola-

tion (Pet. App. 40-42) because the conduct of the police was

not fundamentally unfair.

sponded to [the attorney’s] call” (id. at 15). The

court concluded that this combination of circum-

stances “clearly vitiates any claim that a waiver of

counsel was knowing and voluntary” (id. at 20).

SUMMARY OF ARGUMENT

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

this Court held that the privilege against compelled

self-incrimination applies to custodial police interro-

gation. Miranda set forth a series of “procedural

safeguards”—including the well-known requirement

that the police advise the suspect of his constitutional

rights—designed to dispel what the Court viewed as

the inherent compulsion of custodial interrogation

and to permit the free exercise of the privilege.

The court of appeals concluded in this case that the

warnings prescribed by Miranda were not adequate

to provide réspondent with the information he needed

to determine whether to waive or assert his privilege

against self-incrimination, ruling that the police

should in addition have informed respondent that an

attorney had telephoned the police station and of-

fered to represent respondent during interrogation.

This holding cannot logically be supported on the

basis of the rights afforded by the Fifth Amendment

privilege against compelled self-incrimination or the

prophylactic rule established by Miranda to protect

those rights in the context of custodial interrogation.

In fact, this Court consistently has indicated that

the Miranda procedures are sufficient to dispel the

presumed coercion of custodial interrogation. The

purpose of the Miranda warnings is to inform a sus-

pect of his constitutional rights, and a knowing and

voluntary waiver of those rights suffices to establish

that a statement was not unconstitutionally coerced.

The voluntariness of respondent’s Miranda waivers

could not have been vitiated by the failure of the

police to inform respondent about the telephone call

any more than it could by any other fact extrinsic to

the interrogation and unknown to the suspect. Had

there been no call from a lawyer, no one disputes

that respondent’s knowing waiver of rights would

have provided entirely acceptable evidence that his

statement was not impermissibly coerced. It sur-

passes our understanding how his otherwise volun-

tary election to speak could possibly have been af-

fected by this unknown event.

The court of appeals found that the information

might have affected respondent’s decision whether to

waive his rights; this seems to us debatable as an

empirical matter, but even were it accurate it would

provide no legal grounds for requiring the police to

supply the information to respondent. The point of

the Fifth Amendment and of Miranda is to ensure

the voluntariness of a suspect’s decision to speak, not

to ensure that such a decision also comports with the

suspect’s informed self-interest. There is accordingly

no requirement that the police, having informed the

suspect of his rights, also provide all additional in-

formation that may be material to the decision

whether to waive those rights. Indeed, any rule that

would require the police to provide information that

might discourage a voluntary statement by a suspect

not only furthers no policy of the Constitution but

actually undermines the important and legitimate in-

terest of society in the prevention and solution of

crimes. Moreover, the rule created by the court of

appeals would undermine the clarity of the Miranda

warnings and force police officers to make difficult

and often impond#rable decisions regarding the in-

formation they must provide to a suspect in order to

obtain a valid Miranda waiver.

B. The decision of the court of appeals cannot be

supported under the Sixth Amendment or the Due

Process Clause of the Fourteenth Amendment. Re-

spondent’s Sixth Amendment rights had not attached

at the time of the interrogations because adversary

judicial proceedings had not been commenced. Nor,

if the specific relevant constitutional policy of the

Self-Incrimination Clause was not infringed, is there

any basis for holding that the more general fairness

requirement of the Due Process Clause was violated

by the failure to supply respondent with information

concerning the attorney’s telephone call. Given. the

vital societal interest in solving murders and incar-

cerating murderers, it can hardly be thought funda-

mentally unfair to withhold information simply be-

cause it might discourage the making of a voluntary

statement.

ARGUMENT

RESPONDENT’S THREE VOLUNTARY STATEMENTS

WERE PROPERLY ADMITTED IN EVIDENCE

The investigating officers in this case followed with

precision the procedure set forth by this Court in

Miranda vy. Arizona, 384 U.S. 486 (1966). They re-

cited the prescribed warnings, sought to ensure that

respondent understood his rights, and obtained ex-

press written waivers of those rights before each of

respondent’s three statements detailing his slaying of

Mary Jo Hickey. The court of appeals decided that

this painstaking compliance with Miranda was not

sufficient to permit the introduction of those state-

ments into evidence. It concluded that the failure of

the police to tell respondent that an attorney had tele-

phoned and offered to serve as respondent’s counsel

during interrogation vitiated the voluntariness of re-

EEE

spondent’s Miranda waivers and required the sup-

pression of the confessions.*

In our view, the result reached by the court of ap-

peals is wholly unsupported by the policies of the

privilege against compelled self-incrimination and is

contrary to this Court’s decisions in Miranda and its

progeny. It similarly cannot be justified by reference

to the Sixth Amendment or the Due Process Clause’s

protection of fundamental fairness. Rather than se-

curing these constitutional rights, the court of ap-

peals’ decision has unjustifiably altered the existing

balance between society’s compelling interest in effec-

tive law enforcement and the citizen’s undeniable

right to be free from coerced self-incrimination, and

has done so in a manner that is likely only to disrupt

the procedures adopted pursuant to Miranda and in-

ject new confusion and uncertainty into the interro-

gation process.°

* Several state courts have reached the same result. See

Weber v. State, 457 A.2d 674 (Del. 1983) ; Commonwealth v.

Sherman, 389 Mass. 287, 450 N.E.2d 566 (1983); People v.

Smith, 93 Il.2d 179, 442 N.E.2d 1325 (1982) ; State v. Haynes,

288 Or. 59, 602 P.2d 272 (1979), cert. denied, 446 U.S. 945

(1980) ; Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322

(1977) ; State v. Jones, 19 Wash.App. 850, 578 P.2d 71 (1978) ;

State v. Jackson, 303 So.2d 734 (La. 1974). The Georgia

Supreme Court recently rejected this position and adopted the

holding of the Rhode Island Supreme Court in the present case

that a suspect need not be informed of an attorney’s inquiry.

Blanks v. State, No. 41673 (Ga. June 10, 1985), summarized

at 37 Crim. L. Rep. (BNA) 2249 (July 3, 1985) ; see also State

v. Beck, 687 S.W.2d 155 (Mo. 1985).

5° The Providence officers questioned respondent about the

murder after he had refused to sign a waiver of his Miranda

rights in connection with the investigation by the Cranston

police of the breaking and entering charge on which respond-

ent had been arrested. It is not contended that respondent’s

Fifth Amendment rights were violated because he was inter-

A. The olice Were Not Required To Inform Kespondent

Of .e Attorney’s Unsolicited Offer Of Legal Repre-

sentation In Order To Obtain An Effective Waiver Of

Respondent’s Miranda Rights

This case does not concern an actual violation of

the privilege against compelled self-incrimination

guaranteed by the Fifth Amendment; “[t]he consti-

tutional guarantee is only that the witness be not

compelled to give self-incriminating testimony. The

test is whether, considering the totality of the cir-

cumstances, the free will of the witness was over-

borne.” Uniied States v. Washington, 431 U.S. 181,

188 (1977) (emphesis in original). Respondent was

surely not compelled to confess; the Rhode Island

state courts and the federal district court specifically

found that respondent’s three confessions were volun-

tary (see Pet. App. 116, 67, 37), and the court of

appeals did not overturn those findings.°

The issue here is the scope of the “procedural safe-

guards” prescribed by this Court in Miranda v. Ari-

zona; specifically, whether the court of appeals cor-

rectly held that the police must supplement the warn-

ings enumerated in Miranda with certain additional

information, varying on the basis of the factual cir-

cumstances of each particular case, before the suspect

can effectively waive his rights. We submit that the

scope of the obligation to supply information to a

suspect must be defined by reference to the purpose

of the privilege against self-incrimination and of

rogated about the murder after he had declined to sign a

waiver form in connection with questioning about his more

recent offense. See Michigan v. Mosley, 423 U.S. 96 (1975).

®* The court of appeals acknowledged that “‘[t]his is not the

kind of Fifth Amendment case in which direct physical or

psychological pressure from the police is claimed to have over-

borne the will of a suspect” (Pet. App. 12).

Miranda’s procedural safeguards—an inquiry com-

pletely ignored by the court of appeals. The rule

adopted by the court of appeals fails when measured

against this standard.

1. a. The Court in Miranda concluded that per-

mitting a suspect to assert the privilege against self-

incrimination during custodial interrogation was not

by itself sufficient to safeguard the interests pro-

tected by the privilege. It found that the privilege

was threatened by the “inherently compelling pres-

sures [of in-custody interrogation] which work to

undermine the individual’s will to resist and to com-

pel him to speak where he would not otherwise do so

freely” (384 U.S. at 467). The Court held that in

order “to combat these pressures and to permit a full

opportunity to exercise the privilege against self-

incrimination, the accused must be adequately and

effectively apprised of his rights and the exercise of

those rights must be fully honored” (ibid.). Miranda

prescribed “procedural safeguards” designed to ac-

complish this end (id. at 444-445):

Prior to any questioning, the person must be

warned that he has a right to remain silent, that

any statement he does make may be used as evi-

dence against him, and that he has a right to

the presence of an attorney, either retained or

appointed. The defendant may waive effectua-

tion of these rights, provided the waiver is made

voluntarily, knowingly and intelligently. If, how-

ever, he indicates in any manner and at any

stage of the process that he wishes to consult

with an attorney before speaking there can be

no questioning. Likewise, if the individual is

alone and indicates in any manner that he does

not wish to be interrogated, the police may not

question him.

These safeguards are “not themselves rights pro-

tected by the Constitution but [are] instead measures

to insure that the right against compulsory self-

incrimination [is] protected.” Michigan v. Tucker,

417 U.S. 433, 444 (1974); see also Oregon Vv. Elstad,

No. 83-773 (Mar. 4, 1985) slip op. 6; New York v.

Quarles, No. 82-1213 (June 12, 1984), slip op. 4-5.

Thus, the failure to administer the Miranda warnings

raises a presumption of compu'sion that requires the

suppression of any subsequent statement by the un-

warned suspect. Oregon v. Elstad, slip op. 6; New

York v. Quarles, slip op. 5 n.5.

The premise of this Court’s decision in Miranda is

that the compulsion the Court presumed to be inher-

ent in custodial interrogation would be dispelled—

and the privilege against self-incrimination therefore

fully protected—if a suspect received the warnings

and, being fully cognizant of his rights, voluntarily

elected to waive them. The Miranda Court itself

stated that the warnings and other procedures were

“safeguards effective to secure the privilege against

self-incrimination.” 384 U.S. at 444 (emphasis

added); see also id. at 467, 479. Nowhere 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 hoe supplements to

the warnings depending on the facts of each particu-

lar case.

Moreover, subsequent decisions have made clear

that Miranda sets forth all of the procedures neces-

sary to protect the Fifth Amendment privilege in the

context of police interrogations. For example, in

Fare v. Michael C., 442 U.S. 707, 718 (1979), the

Court observed that “Miranda’s holding has the vir-

tue of informing police and prosecutors with speci-

ficity as to what they may do in conducting custodial

interrogation, and of informing courts under what

circumstances statements obtained during such inter-

rogation are not admissible.” See also Michigan v.

Mosley, 423 U.S. 96, 99-100 (1975); Michigan v.

Tucker, 417 U.S. at 443-444; ef. Oregon v. Elstad,

slip op. 15 (“[a] subsequent administration of Mi-

randa warnings to a suspect who has given a volun-

tary but unwarned statement ordinarily should suf-

fice to remove the conditions that precluded admis-

sion of the earlier statement’).

This Court’s decision in United States v. Washing-

ton, supra, confirms the conclusion that the warnings

accurately and sufficiently inform suspects of their

rights. The defendant in Washington received the

Miranda warnings prior to testifying before a grand

jury, but asserted that he also should have been told

that he was a potential defendant. The Court re-

jected the claim that the Miranda warnings were

inadequate to protect the defendant’s Fifth Amend-

ment right (431 U.S. at 188):

It is inconceivable that such a warning would

fail to alert [a defendant] to his right to refuse

to answer any question which might incriminate

him. This advice also eliminated any possible

compulsion to self-incrimination which might

otherwise exist. To suggest otherwise is to ig-

nore the record and reality. Indeed, it seems

self-evident that one who is told he is free to

refuse to answer questions is in a curious pos-

ture to later complain that his answers were

compelled.

The Court observed that “[e]ven in the presumed

psychologically coercive atmosphere of police custo-

dial interrogation, Miranda does not require that any

additional warnings be given simply because the sus-

pect is a potential defendant” (ibid.). Thus, it seems

settled that it is generally unnecessary to add to the

warnings in order to safeguard the rights protected

by Miranda."

Prior to each of his three confessions respondent

was told that he had a right to remain silent, that his

statements could be used ageinst him, that he had a

right to have an attorney present during questioning

by the police, and that if he could not afford an at-

torney one would be appointed prior to questioning

(Pet. App. 94-95, 102-103, 107-108). These warn-

ings indisputably satisfied Miranda’s requirement

that respondent be informed of his rights.‘

™ The courts of appeals have rejected arguments that the

Miranda warnings should have been supplemented in a partic-

ular case. See United States v. Hall, 724 F.2d 1055, 1059 (2d

Cir. 1983) ; United States v. Contreras, 667 F.2d 976, 979 (11th

Cir.), cert. denied,.459 U.S. 849 (1982) ; Harris v. Riddle, 551

F.2d 936, 938-939 (4th Cir.), cert. denied, 434 U.S. 849

(1977) ; United States ex rel. Placek v. Illinois, 546 F.2d 1298,

1300 (7th Cir. 1976) ; cf. United States v. Brown, 569 F.2d

236, 239 (5th Cir. 1978) (en banc).

Some courts have indicated that the police might be required

to inform the suspect of the crime that is the subject of the

questioning. United States v. McCrary, 643 F.2d 323, 328 (5th

Cir. 1981 (dictum) ; see also Carter v. Garrison, 656 F.2d 68,

70 (4th Cir. 1981), cert. denied, 455 U.S. 952 (1982). How-

ever, there appears to be no justification for this position

because this information is not needed to inform the suspect of

his rights. Moreover, “[w]hen the questioning points in the

direction of illegal conduct, the person being interrogated may

* * * refuse to answer” (United States v. Burger, 728 F.2d

140, 141 (2d Cir. 1984) ).

* Indeed, it is not even clear that Miranda has any appli-

cation to this case. Respondent’s statements were not the

product of police-initiated interrogation at all; rather, respond-

ent volunteered his confessions by banging on the door of the

holding room and telling the officers that he wished to make a

statement (Pet. App. 5). Since the confessions did not result

It is wholly illogical to suggest that, because of the

particular facts of the case, the traditional warnings

were not sufficient to eliminate the presumed coercive

effect of police custody. The only fact that even ar-

guably distinguishes the present case from a typical

interrogation is the attorney’s telephone inquiry.

However, respondent was not aware of the inquiry;

its existence therefore could not in any manner in-

crease the level of compulsion that he felt during the

interrogation. Since respondent could not by his ig-

norance of the phone call have been subject to greater

compulsion than that presumed to be associated with

a typical interrogation, no additional warnings were

needed to fulfill Miranda’s goal of enabling respond-

ent to exercise freely his privilege against compelled

self-incrimination.

b. Miranda recognized that a defendant may

waive his right to remain silent and his right to have

an attorney present during police questioning:

“Tt}he defendant may waive effectuation of [the]

rights provided the waiver is made voluntarily, know-

ingly and intelligently” (384 U.S. at 444). The va-

lidity cf such a waiver is evaluated “upon an inquiry

into the totality of the circumstances surrounding the

interrogation, to ascertain whether the accused in

fact knowingly and voluntarily decided to forgo his

rights to remain silent and to have the assistance of

counsel” (Fare v. Michael C., 442 U.S. at 725). The

relevant circumstances include “the [defendant’s]

age, experience, education, background, and intelli-

from an attempt by the officers to elicit incriminating state-

ments, they were not the product of an “interrogation” and

Miranda does not apply. See Rhode Island v. Innis, 446 U.S.

291 (1980). Significantly, respondent’s statements would have

been admissible even if he had previously invoked his right to

counsel. See Oregon Vv. Bradshaw, 462 U.S. 1039 (1983).

gence, and * * * whether he has the capacity to un-

derstand the warnings given him, the nature of his

Fifth Amendment rights, and the consequences of

waiving those rights.” /bid.; see also Oregon v. Brad-

shaw, 462 U.S. 1039, 1046 (1988) (plurality opin-

ion); Edwards vy. Arizona, 451 U.S. 477, 482

(1981) ; North Carolina v. Butler, 441 U.S. 269, 374-

475 (1979).° Thus, the waiver inquiry essentially is

a corollary of Miranda’s warnings requirement; it

seeks to ascertain whether the suspect understood his

rights and was able to choose freely whether to as-

sert those rights.

The court of appeals concluded (Pet. App. 13, 20-

21) that respondent’s waivers of his Fifth Amend-

ment rights were not voluntary because the police

did not inform respondent that the attorney had tele-

phoned and volunteered to represent respondent dur-

ing interrogation and that the attorney had been told

that no questioning would occur that evening. How- ©

ever, the court of appeals never explained how those

facts could possibly bear on respondent’s ability to

understand either the rights discussed in the Miranda

warnings or his privilege against self-incrimination.

Unless the information in question was necessary to

explain the Fifth Amendment rights to respondent,

the failure to provide the information could not affect

respondent’s Miranda waivers. Any other rule would

“cut this Court’s holding in [Miranda] completely

loose from its own explicitly stated rationale.” Beck-

with v. United States, 425 U.S. 341, 345 (1976).”

* The prosecution bears the burden of demonstrating the

voluntariness of the waiver. Butler, 441 U.S. at 373; Miranda,

384 U.S. at 475.

The court of appeals intimated (Pet. App. 15) that the

information about the attorney’s telephone call might have

2. The court of appeals held that the significance

of the information concerning the attorney’s tele-

phone call was that it might have influenced respond-

ent’s decision whether to request the presence of coun-

sel (Pet. App. 14-15). The assumption that under-

lies this conclusion—-that a suspect must be provided

with all information relevant to his decision whether

to waive his rights—cannot be supported by refer-

ence to the privilege against compelled self-incrimina-

tion, is fundamentally at odds with this Court’s deci-

sion in Miranda, and erects wholly unjustified ob-

stacles to legitimate and effective law enforcement

efforts. _

The decision in Miranda struck a balance between

the two important interests implicated in police in-

terrogation—society’s interest in effective law en-

forcement and the suspect’s privilege against self-

incrimination. See New York v. Quarles, slip op. 7.

The Court consistently has affirmed the “need for

police questioning as a tool for the effective enforce-

made the right to counsel appear more concrete. If the court

were correct that some such statement was needed to ensure

true understanding of the right to counsel, it is not clear why

a suspect should not have to be so advised in all cases, whether

or not any call had actually been made. In any event, there is

little basis in the circumstances of this case for the court’s

assumption that the information would in fact have been mate-

rial to respondent’s waiver decision. Respondent was well

situated to understand these warnings because he previously

had been involved in the criminal justice system (cf. Fare v.

Michael C., 442 U.S. at 725-726). Indeed, respondent at the

time was represented by an appointed attorney on a pending

charge in another case and therefore could not have had any

difficulty understanding the concept of assistance of appointed

counsel. See Pet. App. 63-64 (opinion of the Rhode Island

Supreme Court) ; cf. United States v. Brown, 569 F.2d at 239

(waiver of Sixth Amendment right to counsel).

ment of criminal laws. Without such investigation,

those who were innocent might be falsely accused,

those who were guilty might wholly escape prosecu-

tion, and many crimes would go unsolved. In short,

the security of all would be diminished.” Schneckloth

v. Bustamonte, 412 U.S. 218, 225 (1973) (citation

omitted); see also Haynes v. Washington, 373 U.S.

503, 515 (1963); Watts v. Indiana, 338 U.S. 49, 61

(1949) (Jackson, J., concurring).

Miranda’s holding that the Fifth Amendment privi-

lege against compelled self-incrimination applies in

the context of custodial interrogation by law enforce-

ment officers did not bar all police interrogation, or

even reflect a preference against such questioning,

because “the [Fifth] Amendment does not automati-

cally preclude celf-incrimination, whether spontane-

ous or in response to questions put by government

officials” (United States v. Washington, 431 U.S. at

186). Indeed, “far from being prohibited by the Con-

stitution, admissions of guilt by wrongdoers, if not

coerced, are inherently desirable. * * * Absent some

officially coerced self-accusation, the Fifth Amend-

ment privilege is not violated by even the most damn-

" Justice Frankfurter observed that police questioning “is

often indispensable to crime detection” because

[djespite modern advances in the technology of crime

detection, offenses frequently occur about which things

cannot be made to speak. And where there cannot be

found innocent human witnesses to such offenses, nothing

remains—if police investigation is not to be balked before

it has fairly begun—but to seek out possibly guilty wit-

nesses and ask them questions, witnesses, that is, who are

suspected of knowing something about the offense pre-

cisely because they are suspected of implication in it.

Culombe v. Connecticut, 367 U.S. 568, 571 (1961) (opinion of

Frankfurter, J.) ; see also id. at 576, 578-580.

I statement

ing admissions.” Id. at 187; see also Oregon v. El-

stad, slip op. 6. As Justice Frankfurter noted, “a

confession made by a person in custody is not always

the result of an overborne will. The police may be

midwife to a declaration naturally born of remorse,

or relief, or desperation, or calculation.” Culombe v.

Connecticut, 367 U.S. 568, 576 (1961) (opinion of

Frankfurter, J.).”

Thus, the goal of Miranda (and of the Fifth

Amendment itself) is neither to encourage nor dis-

courage a suspect from responding to questions posed

by the police. It is to ensure that the suspect is aware

that he is free to agree to interrogation or remain

silent: “Once warned, the suspect is free to exercise

his own volition in deciding whether or not to make

a statement to the authorities.” Oregon v. Elstad,

slip op. 10; see also id. at 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’”’); Michigan v. Mosley, 423 U.S. at 108-

109 (White, J., concurring).

A requirement that the police provide suspects

with all information relevant to the waiver decision,

even though such information is not needed to in-

form the suspect of his rights, cannot remotely be

justified as a measure to protect the suspect’s privi-

lege against compelled self-incrimination. It seems

clear to us that the court of appeals simply lost sight

of the purposes of the Fifth Amendment privilege

and instead predicated its holding on the effect of

the non-disclosure on respondent’s ability to act in

. -his own enlightened self-interest. But its ruling, in

12 The circumstances surrounding respondent’s statements

(see Pet. App. 5) suggest that this is precisely what happened

here.

addition to lacking constitutional moorings, would

fundamentally alter the balance struck in Miranda

between the rights of the suspect and society’s inter-

est in iaw enforcement by requiring the police in

effect to discourage a suspect from making a volun-

tary statement. There is no justification for impos-

ing restrictions upon law enforcement efforts where

those restrictions are not necessary to safeguard con-

stitutional rights. In Oregon v. Elstad, supra, this

Court rejected the deferdant’s claim that his Miranda

waiver was not fully informed because he had not

received an additional warning telling him that his

previous confession was inadmissible. The Court

stated that an additional warning was “neither prac-

ticable nor constitutionally necessary,” and noted that

it “has never embraced the theory that a defendant’s

ignorance of the full consequences of his decisions

vitiates their voluntariness” (slip op. 17).™

Similarly, respondent’s waivers here were volun-

tary even though he was not aware of facts that

might have affected his decision whether to assert

his right to counsel. Respondent had been informed

repeatedly that he had a right to the presence of

counsel during questioning and he indicated that he

understood that right. Respondent could have invoked

this right at any time simply by requesting an attor-

ney, but decided not to do so. That free choice is all

that Miranda requires.“

8 The defendant in Elstad could at least argue that his

statements were the product of an initial presumptively coerced

statement, thus making the policies of the Fifth Amendment

potentially relevant to his case. Here, respondent canaot even

make such a threshold showing.

* Miranda assumes that a properly warned suspect iz capable

of deciding for himself whether to request assistance of coun-

sel. A fortuitous inquiry by an attorney provides no justifica-

A rule requiring the police to supply a suspect with

information because the information might influence

the suspect’s waiver decision could sweep quite

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

his rights and consent to interrogation probably

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 inves-

tigation, the likely penalties for the crime of which

he is suspected, and the prosecutor’s or judge’s pro-

pensity to treat more leniently one who has coop-

erated in the investigation. In addition, police offi-

cers surely are aware that “any lawyer worth his

salt will tell the suspect in no uncertain terms to

make no statement to police under any circumstances”

(Watts v. Indiana, 338 U.S. at 59 (Jackson, J., con-

curring in the judgment) ), and that fact also would

most likely influence a suspect’s decision. Under the

test applied by the court of appeals, the police could

be burdened with the requirement of supplying sus-

pects with such information despite the fact that the

information is irrelevant to the purpose of Miranda

—to eliminate the compulsion presumed to be inher-

ent in custodial interrogation and enable a suspect

freely to decide whether to exercise his right to re-

tion for altering this assumption. See Kamisar, “Brewer v.

Williams, Massiah and Miranda: What is ‘Interrogation’?

When Does It Matter?,” 67 Geo. L.J. 1, 95 (1978). Indeed, the

court of appeals’ rule seems to us rather arbitrary and some-

what unfair to the indigent and unrepresented suspect, who

would be far less likely to be the beneficiary of a call from a

solicitous attorney. As the Rhode Island Supreme Court

stated: “The next logical step would be to ban confessions

altogether on the theory that a person should not be denied his

right to counsel on the fortuitous circumstance that someone

might not see fit to call the station” (Pet. App. 65).

main silent. Thus, such additional warnings would

“come[] at a high cost to legitimate law enforcement

activity, while adding little desirable protection to

the individual’s interest in not being compelled to

testify against himself.” Oregon v. Elstad, slip op.

13 (emphasis in original) .”

Even if the courts were somehow possessed of a

general charter to strike a policy-based balance be-

tween the self-interest of the suspect and the law en-

forcement interests of society, it would be unwise and

improvident to adopt the court of appeals’ rule. As

the Rhode Island Supreme Court observed (Pet. App.

64-65) :

We fear that if such a rule were adopted,

there would be nothing to prevent or discourage

the office of the public defender or other defense

counsel who represent a large number of recidi-

vistic clients from sending to the various police

departments throughout the state the names of

these clients, together with a request that these

attorneys be notified in the event that such in-

dividuals are arrested for criminal conduct. Un-

der such a rule, the failure of the police, whether

by administrative inadequacy or otherwise, to

effectuate such a notification would then be fatal

to the admissibility of any statements thereafter

obtained. As the crime rate increases and as or-

ganized society seems ever more impotent to deal

with crime on our streets, in our neighborhoods,

** The Court stated in Miranda that “any evidence that the

accused was threatened, tricked, or cajoled into a waiver will,

of course, show that the defendant did not voluntarily waive

his privilege” (384 U.S. at 476), but the fact that the police

failed to supply respondent with information they were not

required to provide obviously does not constitute a “trick”

under this standard.

and in our homes, this addition to the Miranda

requirements seems as unwise on policy grounds

as it is unnecessary on constitutional grounds.

8. Practical considerations also counsel against

any additions to the information that must be sup-

plied to a suspect in order to obtain an effective M/-

randa waiver. One of the perceived virtues of Mi-

randa is that it supplies a “bright line” rule for the

conduct of custodial interrogation. As the Chief Jus-

tice has explained, “[t]he meaning of Miranda has

become reasonably clear and law enforcement prac-

tices have adjusted to its strictures.” Rhode Island

v. Innis, 446 U.S. 291, 304 (1980) (Burger, C.J.,

concurring) ; see also New York v. Quarles, slip op.

3-4 (O’Connor, J., concurring in the judgment in

part and dissenting in part); Berkemer v. McCarty,

No. 83-710 (July 2, 1984), slip op. 8-10; Fare v.

Michael C., 442 U.S. at 718.

The court of appeals’ approach would introduce a

new element of uncertainty into the interrogation

process. Police officers could no longer be sure that

careful administration of the warnings would provide

the predicate for a valid waiver. Instead, they would

have to examine the facts of each case to determine

whether a court might later conclude that some piece

of information would have been relevant to the sus-

pect’s decision. And a miscalculation in either direc-

tion would prove costly: if they err in failing to

supply the information, any confession they obtain

would have to be suppressed; if they err on the side

of caution, their action may needlessly discourage the

making of a statement and thwart successful investi-

gation of a serious crime.

The First Circuit itself has illustrated the complex-

ity of this determination. In Fuentes v. Moran, 733

F.2d 176 (1st Cir. 1984), the court concluded that

the failure to inform the defendant of an attorney’s

“half-hearted inquiry as to the [the defendant’s]

status” did not vitiate the defendant’s Miranda

waiver (id. at 181). In the present case, the court

of appeals distinguished Fuentes on the ground that

the attorney here “could not be criticized for lack of

diligence” (Pet. App. 13). It is likely to be extremely

difficult, if not impossible, for police to make these

fine distinctions in the context of an ongoing investi-

gation. The court below also relied upon respondent’s

preexisting relationship with the Office of the Public

Defender (id. at 10-11 n.3), a circumstance not likely

to be known to investigating officers. Finally, the

police officers actually conducting the investigation

in this case were not even aware of the attorney’s

inquiry. Thus, even if they had known of the court

of appeals’ rule. requiring that such information be

supplied to suspects, they would not have been able

to avoid suppression of the confessions in this case."

1® Respondent will no doubt argue that it was the duty of

the officer who took the attorney’s call to convey the informa-

tion to the interrogating officers, even though there is no indi-

cation in the record that he was aware of the arrival of the

Providence officers in connection with the murder investiga-

tion. Perhaps the recognition of a duty to inform makes sense

where the suspect has invoked his right of silence or to coun-

sel—since in those circumstances renewal of interrogation may

tend to undermine the effectiveness of the advice of rights and

call in question the validity of an ensuing waiver—but it seems

to us largely unworkable in the case of extrinsic information

of the sort involved here. When a suspect invokes his constitu-

tional rights, the officers are on notice that they have received

an important p*: e of information that should be conveyed to

their colleagues fhe officer receiving the telephone call in the

present case would not have been aware of the alleged signifi-

cance of his exchange with the attorney.

The rule adopted by the court below is squarely

contrary to this Court’s recognition of “the impor-

tance of a workable rule ‘to guide police officers, who

have only limited time and expertise to reflect on and

balance the social and individual interests involved

in the specific circumstances they confront.’” New

York v. Quarles, slip op. 9, quoting Dunaway v. New

York, 442 U.S. 200, 213-214 (1979) ; see also Oregon

v. Bradshaw, 462 U.S. 1039, 1050 n.3 (Powell, J.,

concurring in the judgment). It supplies no work-

able standards for law enforcement agents and would

create an entire new area of post hoc judicial inquiry

without providing any necessary protection for con-

stitutional rights.

B. Neither The Sixth Amendment Nor Respondent’s

Right To Due Process Obligated The Police To Inform

Respondent Of The Attorney’s Telephone Call

The court of appeals rested its decision on the Self-

Incrimination Clause of the Fifth Amendment and

did not reach respondent’s claims that the failure to

inform him of the attorney’s telephone call violated

his rights under the Sixth and Fourteenth Amend-

ments (see Pet. App. 21 n.5). Respondent may argue

that the decision below should be upheld on these

grounds, but neither of these theories supports the

result reached by the court of appeals.

1. Any effort by respondent to rely upon the Sixth

Amendment to support the rule adopted by the court

below is foreclosed by decisions of this Court. The

Court recently emphasized that “the right to counsel

attaches only at or after the initiation of adversary

judicial proceedings against the defendant.” United

States v. Gouveia, No, 83-128 (May 29, 1984), slip

op. 6; see also Estelle v. Smith, 451 U.S. 454, 469-

470 (1981); Kirby v. Illinois, 406 U.S. 682, 688-689

(1972) (plurality opinion). Since adversary proceed-

ings plainly had not commenced at the time of the

interrogation in this case, respondent’s right to

counsel had not yet attached. That right therefore

cannot support the additional advice required by the

court of appeals.”

2. The police failure to inform respondent of the

attorney’s telephone call plainly did not deprive re-

spondent of the fundamental fairness guaranteed by

the Due Process Clause of the Fourteenth Amend-

ment. Although possessing substantial grounds for

suspecting that respondent had committed a most

serious crime, the officers nevertheless scrupulously

respected respondent’s Fifth Amendment rights, and

respondent freely waived his right to the assistance

of counsel during interrogation. Given society’s com-

pelling interest in the prevention and solution of

crime and the importance that voluntary admissions

by suspects play in the accomplishment of that objec-

tive, it seems to us impossible to say that funda-

mental fairness requires the police to convey this sort

of information to a suspect simply on the ground that

it is likely to discourage voluntary statements that

17 The Court in Miranda stated that preventing an attorney

from consulting with his client during interrogation con-

stituted a Sixth Amendment violation (384 U.S. at 465-466

n.35), but the Court has since made clear that Miranda—and

Escobedo V. Illinois, 378 U.S. 478 (1964), upon which Miranda

relied—discussed a right to counsel during interrogation “in

order to protect the Fifth Amendment privilege against self-

incrimination rather than to vindicate the Sixth Amendment

right to counsel.” United States v. Gouveia, slip op. 7 n.5. As

discussed above, the court of appeals’ decision cannot be sup-

ported on Fifth Amendment grounds.

the suspect may later regret having made. Compare

North Carolina yv. Pearce, 395 U.S. 711, 723-726

(1969) ; Rochin v. California, 342 U.S. 165 (1952).

Indeed, this Court previously has indicated that a

due process claim adds nothing to a defendant’s as-

sertion of a Miranda violation. In United States

v. Washington, supra, the defendant 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

invoke his privilege against compelled self-incrimina-

tion (4381 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 result is appropriate here. The

fairness of a police interrogation under the Due Proc-

ess Clause is measured by “examining the circum-

stances of interrogation to determine whether the

processes were so unfair or unreasonable as to render

a subsequent confession involuntary.” Michigan v.

Tucker, 417 U.S. at 441; see also Oregon v. Elstad,

slip op. 5; Haynes v. Washington, supra. Respondent

obviously cannot argue that because the police failed

to inform him of the attorney’s telephone call his

confessions were involuntary under this standard.

Therefore, the admission of the confessions into evi-

dence did not violate the Due Process Clause’s guar-

antee of fundamental fairness.

ee ee

‘ieee eee ii

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.