Amicus Curiae Brief — Illinois v. Perkins

OCTOBER TERM, 1989

STATE OF ILLINOIS, PETITIONER

v.

LLOYD PERKINS

ON WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

FIFTH JUDICIAL DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS. JR

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

PAUL J. LARKIN. Jr

Aasis anf fo the Nolve for (sé re ral

Dy partment of Juatice

Washinaton. D.C. 20530

(202) GL3-2217

____

QUESTION PRESENTED

Whether an undercover law enforcement officer

must give Miranda warnings to an incarcerated sus-

pect before asking him questions that may elici

incriminating response.

TABLE OF CONTENTS

Page

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

EES 2

Summary of argument................................----- eee. 7

Argument:

An undercover police officer need not administer

Miranda warnings before eliciting incriminating

statements from an incarcerated suspect ..... 9

A. There is no per se requirement to administer

Miranda warnings before questioning an incar-

a ensasusosoconoenocs 9

B. Miranda does not restrict an undercover eguat’s

activities .................. iia hntteeeiteteettenumnnctatedneasneane 14

Conclusion _...................... 24

TABLE OF AUTHORITIES

Cases:

Arizona V. Mauro, 481 U.S. 520 (1987) 16, 19, 21, 22

Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981) 14

Beckwith v. United States, 425 U.S. 341 (1976) 22

Berkemer Vv. McCarty, 468 U.S. 420 (1984) 16

Blain v. Commonwealth, 7 Va. App. 10, 317 S.E.2d

ae 13

Boutwell v. State. 256 Ga. 63, 344 S.E.2d 222

Ce ecnnsitubesenmevesaeswenes oe 13

California Vv. Beheler, 463 U.S. 1121 (1983)... 16, 18

Casey V. United States, 276 U.S. 413 (1928). 23

Cervantes Vv. Walker. 589 F.2d 424 (9th Cir.

Cee cetuneumesecooncooons 10, 11

Colorado Vv. Connelly, 479 US. 157 (1986) .. - 20

Commonwealth v. Chacko, 500 Pa. 571, 459 A2d

Nee csuumenmmeens ” 13

Estelle v. Smith, 451 U.S. 454 (1981) 14

Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985),

cert. denied, 475 U.S. 1025 (1986) .s— 21

Frazier v. Cupp, 394 U.S. 731 (1969). 20

Grimm V. United States, 156 U.S. (1895) 23

(11)

IV

Cases—Continued: Page

Hamilton Vv. State, 62 Md. App. 603, 490 A.2d 763,

cert. denied, 303 Md. 682, 496 A.2d 682 (1985). 13, 19

Hampton Vv. United States, 425 U.S. 484 (1976). 23

Hoffa v. United States, 385 U.S. 293 (1966) ___ 8, 9, 20, 23

Holyfield v. State, 101 Nev. 793, 711 P.2d 834

RN Nas Pe ER ete a 13, 19

Kuhlmann v. Wilson, 477 US. 436 (1986) .......... 23

Leviston Vv. Black, 843 F.2d 302 (8th Cir.), cert.

denied, 109 S. Ct. 168 (1988)... 13

Lewis Vv. United States, 385 U.S. 206 (1966) __ 23

Lopez Vv. United States, 373 U.S. 427 (1963) ___ 20, 23

Maine V. Moulton, 474 U.S. 159 (1985). 22

Massiah Vv. United States, 377 U.S. 201 (1964) 22

Mathis v. United States, 391 U.S. 1 (1968) _. 5, 7,12

Michigan Vv. Tueker, 417 U.S. 483 (1974) 10

Minnesota V. Murphy, 465 U.S. 420 (1984) 9, 16, 22

Miranda V. Arizona, 384 U.S. 436 (1966) 2, 9-10, 11-12, 15

Ohio Vv. Swinney, No. 37 CA 41 (1989 WeEsTLAW

86269) (Ohio App. July 15, 1989) _ 13

Oregon V. Elstad, 470 U.S. 298 (1985) 18

Oregon V. Mathiason, 429 U.S. 492 (1977) 8, 16, 21

Palmigiano Vv. Rarter, 510 F.2d 534 (1st Cir.

1974), rev'd, 425 U.S. 309 (1976) 14

People Vv. Aalbu, 696 P.2d 796 (Colo. 1985) . 13

Peonle Vv. Smith, 117 Mise. 2d 737, 459 N.Y.S.2d

528 (Sup. Ct. 1983) _ 13

People Vv. Williams, 44 Cal. 3d 1127, 751 P.2d 901,

245 Cal. Rptr. 635, cert. denied, 109 S. Ct. 514

i ee ee 13

Price v. United States, 165 U s. 311 (1897) - 23

Procunier V. Atchley, 400 U.S. 446 (1971) 2)

Rhode Island ¥. Innis, 446 U.S. 291 (1980) 6, 16, 18

Roberts Vv. United States, 445 U.S. 552 (1980) 22

State Vv. Fuller, 204 Neb. 196, 281 N.W.2d 749

(1979) ae f 13

State V. Fulminante, 778 P.2d 602 (Ariz. 1989) 13

State Vv. LaRve, 19 Wash. App. 841, 578 P.2d 66

(1978) a 13

State vy. McDonald. 327 So. 2d ‘1116 (La.), cert.

denied, 449 U.S. 957 (1980) 13

Cases—Continued : Page

State v. McMullan, 713 S.W.2d 881 (Mo. Ct. App.

AL EN 2 PIGS ET Aa Bs a ar aR I ne 19

State v. Perkins, 753 S.W.2d 567 (Mo. Ct. App.

1988) PR Rae TE EN 13, 19

State v. Travis, 116 R.I. 678, 360 A.2d 548 (1976). 13, 19

United States Vv. Brown, 466 F.2d 493 (10th Cir.

EE Pa ee ke NP mn kD 19

United States Vv. Conley, 779 F.2d 970 (4th Cir.

1985), cert. denied, 479 U.S. 830 (1986) 10, 11, 13

United States Vv. Cooper, 800 F.2d 412 (4th Cir.

United States Vv. Fioravanti, 412 F.2d 407 (3d

Cir.), cert. denied, 396 U.S. 837 (1969) 17, 19

United States v. Hayes, 646 F. Supp. 146 (N.D.

er ee 11

United States Vv. Henry. 447 US. 264 (1980) 22

I'nited Stetes Vv. Russell, 411 U.S. 423 (1973) 23

United States Vv. Scalf, 725 F.2d 1272 (10th Cir.

1984) " 11

I'nited States Vv. Washinaton, 431 U.S. 181

(1977) 9

I'nited States Vv. White. 401 U.S. 745 (1971) 23

United States v. Willonahhby, 860 F.2d 15 (2d Cir.

1988). cert. denied, 109 S. Ct. 846 (1989) 12-13, 17, 19

Constitution:

U.S. Const. :

Amend. V 6, 8, 19, 20, 24

Self-Incrimination Clause 9, 21

Amend. VI 22, 23

Miscellaneous -

Dix. Undercover Investiaetions and Police Rule-

making, 53 Tex. L. Rev. 203 (1975) 18

Kamiscar, Brewer rv. Williams, Massiah, and

Miranda: What ‘s “Interrogation”? When Does

It Matter?, 67 Geo. LJ. 1 (1978) 16, 17, 18

White, Police Tricheru in Inducing Confessions,

127 U. Pa. L. Rev. 581 (1979) 18

In the Supreme Court of the United States

OCTOBER TERM, 1989

No. 88-1972

STATE OF ILLINOIS, PETITIONER

v.

LLOYD PERKINS

ON WRIT OF CERTIORARI TO THE

APPELLATE COURT OF ILLINOIS,

FIFTH JUDICIAL DISTRICT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether law en-

forcement authorities may use undercover officers to

question the uncharged suspect of a crime while he is

incarcerated in a jail or prison. The United States

has an interest in the Court’s resolution of that ques-

tion for several reasons. The federal government op-

erates numerous jail and prison facilities for persons

who have been arrested for or convicted of a crime.

The Court’s decision in this case will therefore affect

the ability of the federal government to use this law

enforcement tool. The federal government also pros-

ecutes cases referred from state or local authorities.

The Court’s decision will affect the federal govern-

(1)

scope of Miranda y. Arizona, 384 U.S. 436 (1966),

an issue that is raised by this case.

STATEMENT

1. On November 8, 1984, Richard Stephenson was

shot and kiiled in Fairview Heights, a suburb of East

St. Louis, Illinois. No one was arrested for the homi-

cide, and as of early 1986 the crime remained un-

solved. In March of that year, Donald Charlton told

police officers that he had information concerning a

homicide in the East St. Louis area that had occurred

about two years earlier. Charlton, an inmate at the

Graham Correctional Facility in Hillsboro. Illinois,

Was serving a six-year prison sentence for burglary.

He told police that he had met respondent when

they were imprisoned together at the Graham fa-

cility, and that respondent had said he had mur-

dered someone in East St. Louis. Although Charlton

did not know the victim's name, the facts Charlton

know the facts of the murder in the detail that Char-

ton related. Pet App. 2a: Tr. 3-6, 26. 57-60, 72:

4/11/86 Tr. 2-3.’

Following up on Charlton's leads, the officers

learned that respondent had recently been released

from custody. The officers then decided to use Char!-

'“Tr.” refers to the transcript of the February 18, 1987.

suppression hearing. The hearing on April 11. 1986, was a

preliminary hearing.

ton as an informant to elicit information from re-

spondent. The officers obtained a court order releas-

ing Charlton from the Graham facility on March 28.

and they arranged to have Charlton wear a body re-

On March 30, 1986, the officers learned that re-

spondent was being held in the Montgomery County,

Illinois, jail pending trial for an unrelated charge of

aggravated battery. The officers decided that it would

be impractical to use an eavesdropping device in re-

spondent’s cell or a body recording device on an un-

dercover officer. The officers decided, however, to

place an undercover agent posing as an escaped con-

viet with respondent im the jail cellblock to seek to

learn whether respondent had committed the Stephen-

son murder. Pet. App. 2a: Tr. 8-10, 28-30.

The following day, John Parisi, the officer who was

to serve as the undercover agent in the jail. met with

Charlton at the Fairview Heights police station.

Parisi and Charlton were instructed to engage re-

spondent in conversation and to report anything that

he said about the Stephenson murder. Their cover

story would be that after escaping from a Cook

County. Illinois, work release program, Parisi and

Charlton made their way to Montgmery County in

order to join respondent so that all three could leave

for California, but that they were arrested in the

course of a burglary. That evening, Parisi, who was

using the alias “Vito Bianco,” and Charlton were

processed into the jail and dressed in jail clothes.

They were then placed in the cellblock, which con-

sisted of 12 separate cells that opened into a large

4

room. Pet. App. 2a-3a: Tr. 10-13, 16-18, 35-40, 54-

55, 63-65.

After entering the cellblock, Charlton spoke with

respondent briefly and introduced him to Parisi.

Parisi told respondent that he “wasn’t going to do

any more time,” Tr. 41, and he suggested that all

three should escape from the jail. Respondent replied

that the Montgomery County jail was “a rinky-dink

jail” and that they could “break out.” Jbid. He also

said that he could arrange to have someone smuggle

in a gun, and the three of them decided to kill any-

one who tried to interfere with their escape. Respond-

ent then showed Agent Parisi a hidden, makeshift

crowbar that respondent said could be used during

their escape to take the jail guard hostage. The three

decided to meet later that evening after the other in-

mates went to sleep. Pet. App. 2a: Tr. 40-43, 65-67.

Agent Parisi, Charlton, and respondent met at mid-

night in respondent’s cell. Respondent said that his

girlfriend could smuggle an automatic pistol into the

jail on visiting day, April 1. Tr. 43-45. Charlton

said, “‘Hey, I'm not a murderer, I’m a burglar.

That’s your guys’ profession.’” Tr. 44: see Tr. 67.

After telling Charlton that he would be responsible

for anv murder that occurred, Parisi asked respond-

ent, “Have you ever done anybody[?]” Tr. 44. Re-

spondent said he had, and then recounted in detail

the events of the Stephenson murder for approxi-

mately 35 minutes. Tr. 45-49. Afterward. Parisi

* Respondent said that he was paid £5,000 for the “inh”

by a man who wanted Stephenson maimed because Stephen-

son owed the man money for narcotics and was having an

affair with the man’s wife. Respondent explained that he had

“cased” Stephenson's house for about a week before the mur-

der. On the day of the murder, respondent approached Steph-

enson's house at 8:30 p.m. wearing a trench coat to conceal

An es, pac

5

and respondent engaged in the “usual jailhouse talk”

while watching television for 15-20 minutes. Re-

spondent then went to sleep on the floor outside his

cell. Parisi and Charlton did not again speak to re-

spondent. Tr. 50, 70-71. Parisi did not give respond-

ent Miranda warnings before speaking with him.

Pet. App. 3a-da.

On April 1, respondent was arrested and charged

with the Stephenson murder. Respondent was given

Miranda warnings, and he asked for a lawyer. Pet.

App. 3a; Tr. 14-16, 22-24, 32-33, 52, 56, 71.

2. Before trial, respondent moved to suppress the

statements made to Agent Parisi ‘n the Montgomery

County jail. Following an evidentiary hearing, the

trial court granted the motion to suppress. The

court ruled that Parisi and Charlton were “agents of

the State and had conducted questioning of the de-

fendant concerning the alleged offense while he was

in custody and without advising him of his rights”

as required by Miranda. Pet. App. 11a.

3. On the State’s appeal, the Appellate Court of

Illinois, Fifth Judicial District, affirmed. Pet. App.

la-9a. Relying on Mathis v. United States, 391 U.S.

1 (1968), the court held that respondent was “in

custody” for purposes of Miranda since he was in-

earcerated at the time he was questioned, even

a sawed-off 12 gauge shotgun. Stephenson met respondent

at the door to his home, and he asked respondent to step into

the garage. As the garage door opened, respondent asked

the victim if his name was “Steve,” and he then shot Stephen-

eon in the right leg. Respondent was about to shoot Stephen-

son again, but he decided not to do so because he heard sev-

eral dogs barking in the garage. The shotgun blast severed

Stephenson's femoral artery, and he bled to death in 30

seconds. Respondent then ran hack to the car and drove away

with his two confederates. Tr 15-49, 68-70:4 11 86 Tr 5

: ire‘

vyVAR a. Li

2. When it employs an undercover agent rather

than a readily identifiable police officer to speak with

an incarcerated suspect, the government is not doing

indirectly what Miranda forbids it from doing di-

rectly. The purpose of the procedures adopted in

Miranda was to prevent law enforcement officers from

using a coercive setting to extract from a suspect a

confession that he would not have given in an unre-

strained environment. But an undercover agent does

not coerce a suspect into confessing; the officer lulls

a suspect into confessing by taking advantage of the

suspect's misplaced trust in a fellow prisoner. This

Court held in Hoffa v. United States, 385 U.S. 298

(1966), that the use of an informant to obtain in-

criminating statements from a suspect is not a form

of coercion; a decade later the Court held in Oregon

v. Mathiason, 429 U.S. 492 (1977), that police decep-

tion does not itself render a setting coercive under

Mirenda. The use of undercover officers has long

been accepted as a legitimate investigative technique,

and it is often the only means of identifying a guilty

party. The rule adopted by the Illinois court in this

case effectively prevents the police from using that

practice if a suspect is incarcerated. Such a rule

would impose a costly burden on law enforcement

without measurably adding to the protection of a sus-

nect’s legitimate Fifth Amendment interests.

i ee ee

9

ARGUMENT

AN UNDERCOVER POLICE OFFICER NEED NOT

ADMINISTER M/RANDA WARNINGS BEFORE ELIc.-

ITING INCRIMINATING STATEMENTS FROM AN

INCARCERATED SUSPECT

A. There Ie No Per Se Requirement To Administer Wir-

anda Warnings Before Questioning An Incarcerated

Inmate

The Self-Incrimination Clause of the Fifth Amend-

ment provides that no person “shall be compelled in

any criminal case to be a witness against himself.”

As the text of the Clause indicates, “a necessary ele-

ment of compulsory self-incrimination is some kind

of compulsion.” Hoffa v. United States, 385 U.S. 293,

304 (1966). Accord United States v. Washington,

431 U.S. 181, 187 (1977) (“Absent some officially

coerced self-accusation, the Fifth Amendment privi-

lege is not violated by even the most damning admis-

sions"). Furthermore, the Clause is not self-execut-

ing; a person against whom official compulsion is

directed must invoke the privilege in a timely manner

or forfeit its benefits, despite the fact that the re-

quested disclosure wi!!l prove incriminating. Minne-

sota v. Murphy, 465 U.S. 420, 427-428 (1984) (col-

lecting cases).

Miranda created a limited exception to that rule

for the uniqw environment of police custodial inter-

rogation. In that context, the Court excused a per-

son's failure to invoke the privilege because the Court

believed that official interrogation of a suspect in a

police-dominated, custodial environment invariably

generates “inherently compelling 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 dissipate that

compulsion, Miranda regulated the conduct of police

custodial interrogation by devising prophylactic safe-

guards that are “not themselves rights protected by

the Constitution but [are] instead measures to in-

sure that the right against compulsory self-incrimina-

tion [is] protected.” Michigan v. Tucker, 417 U.S.

433, 444 (1974).

Miranda involved custodial police questioning of

individuals suspected of criminal activity who were

not otherwise confined. A prison inmate who is ques-

tioned without the imposition of any additional re-

straints on his liberty is not in the same position for

purposes of Mirenda as a suspect who was previously

ut liberty and is taken into custody for the purpose

of questioning. The courts of appeals have recognized

that “[a] rational inmate will always accurately

perceive that his ultimate freedom of movement is

absolutely restrained and that he is never at liberty

to leave an interview conducted by prison or other

government officials.” United States v. Conley, 779

F.2d 970, 973 (4th Cir. 1985). cert. denied. 479 U.S

S30 (1986). Thus, to apply the traditional standard

for determining whether an interviewee is in custody

for purposes of Mirenda “would be tantamount to a

per se finding of ‘custody’ for prison inmates. [hid.-

see also Cervantes v. Welker, 589 F.2d 424, 427.428

(Sth Cir. 1978) (application of the traditional “free

to leave” standard would “lead to the conclusion that

all prison questioning is custodial because a reason-

able prisoner would always believe he could not leave

the prison freely.” thus leading to “the illogical Pras) -

tion of providing greater protection to a prisoner than

to his nonimprisoned counterpart”)

1]

A prison inmate, of course, cannot leave his sur-

roundings and therefore is literally “in custody” at

all times. But the restraints on an inmate’s liberty

that are a constant feature of prison life become fa-

miliar to the inmate and are therefore unlikely to

have the coercive effect that Miranda warnings are

desiened to dispel. The inherently coercive effects

that Miranda found to be associated with custodial

interrogation arise in the prison context onlv if an

inmate’s liberty is further limited, for purposes of

the interrogation. in a manner different from what

the inmate experiences as the standard condition of

day-to-day prison life. As the Ninth Circuit has ob-

served, “{i]n the prison situation. ‘the concept of re-

stricting the suspect’s freedom] necessarily implies a

change in the surroundings of the prisoner which

results in an added imposition on his freedom of

movement. * * * [W]e look to some act which places

further limitations on the prisoner.” Cervantes v.

Walker, 589 F.2d at 428: accord United States v.

Cooper, 800 F.2d 412, 414-415 (4th Cir. 1986).

United States v. Conley, 779 F.2d at 972-974: United

Stetes v. Sealf. 725 F.2d 1272, 1275-1276 (10th Cir.

1984): United States v. Hayes, 646 F. Supp. 146,

149-151 (N.D. Ind. 1986). For these reasons, a

prison inmate should be deemed to be in custody for

purposes of Miranda only if he is subjected to more

than the usual restraint on his liberty to depart.

Cervantes v. Walker, 589 F.24 at 428.

* Aside from the effect that a per se rule requiring Miranda

warnings would have on cases like this one, that rule would

disrupt the ability of prison administrators to conduct in-

formal questioning of an inmate about, for example, a prison

disturbance. Yet, Miranda said that it was “not intended to

hamper the traditional function of police officers in investi-

‘maa sds mes mem

92

_-

We do not believe that a contrary result is required

by this Court’s decision in Mathis v. United States,

391 U.S. 1 (1986). In Mathis, an inmate incarcer-

ated in a state prison was interviewed by an agent of

the Internal Revenue Service about possible federal

income tax violations. The agent did not administer

Miranda warnings before initiating the questioning.

This Court reversed the inmate’s subsequent convic-

tion for filing false tax returns on the ground that

incriminating statements made in the course of the

interview should not have been admitted at trial. The

Court rejected the government’s argcument that

Miranda is applicable “only to questioning [of] one

who is ‘in custody’ in connection with the very case

under investigation.” 391 U.S. at 4-5.

To be sure, the Court's brief opinion in Mathis can

be read as establishing a per se rule that an inmate

who is subject to questioning is automatically “in

custody” and is therefore entitled to Miranda warn-

ings merely by virtue of his status as a prisoner. We

believe, however, that Mathis is better understood as

simply rejecting the government’s competing per se

rule that Miranda should not be applicable to an in-

mate who is in custody in connection with a case

other than the one under investigation. Several courts

of appeals have interpreted Mathis in that fashion.

See L’nited States v. Willoughby, 860 F.2d 15, 23 (2d

gating crime” and that “[g)eneral on-the-scene questioning

as to facta surrounding a crime or other general questioning

of citizens in the fact-finding process is not affected by [the

Court's) holding.” 384 U.S. at 477. To define all questioning

in the prison setting as “custodial interrogation” for purposes

of Miranda would deprive law enforcement officers and prison

administrators of their ability to conduct such informal ques-

tioning free of the constraints of Miranda procedures.

13

Cir. 1988) (“the mere fact of imprisonment does not

mean that all of a prisoner's conversations are official

interrogations that must be preceded by Miranda

warnings”), cert. denied, 109 S. Ct. 846 (1989);

Leviston v. Black, 843 F.2d 302, 304 (8th Cir.) (“in-

carceration does not ‘psu facto render an interroga-

tion custodial”), cert. denied, 109 S. Ct. 168 (1988) ;

United States v. Conley, 779 F.2d at 972: Cervantes

v. Walker, 589 F.2d at 427.‘ Under that interpreta-

tion, a prisoner is not put in a better position than an

ordinary citizen by being entitled to Miranda warnings

prior to questioning of any sort, regardless of the set-

ting. On the other hand, the prisoner is not put in a

worse position than unincarcerated persons, since he

is entitled to Miranda warnings if the normal cir-

‘Most state courts that have addressed the issue have

reached the same conclusion. See State v. Fulminante, 778

P.2d 602, 607 (Ariz. 1989): People Vv. Williams, 44 Cal. 3d

1127, 1141-1142, 751 P.2d 991, 910-911, 245 Cal. Rptr. 635,

644-645, cert. denied, 109 S. Ct. 514 (1988): People v. Aalhu,

696 P.2d 796 ‘Colo. 1985): Bouwfwell v. State, 256 Ga. 63,

344 S.E.2d 222 (1986): State v. McDonald, 387 So. 2d 1116,

1120 (La.), cert. denied, 449 U.S. 957 (1980): Hamilton vy

State, 62 Md. App. 603, 609-617, 490 A.2d 763, 766-770, cert.

denied, 303 Md. 682, 496 A.2d 682 (1985); People v. Smith,

117 Mise. 2d 737, 739-740, 459 N.Y.S.2d 528, 532 (Sup. Ct.

1983): Ohio Vv. Swinney, No. 87 CA 41 (1989 WESTLAW 86260)

(Ohio App. July 15, 1989); Blain Vv. Commonwealth, 7 Va

App. 19, 13-15, 371 S.E.2d 838, 840-841 (1988). Contra

State Vv. Perkins, 753 S.W.2d 567, 570-573 (Mo. Ct. App

1988); State Vv. Fuller, 204 Neb. 196, 281 N.W.2d 749 (1979) -

Holyfield Vv. State, 101 Nev. 793, 801-802, 711 P.2d 834, &39-

B41 (1985): Commonwealth v. Chacko, 500 Pa. 571. 577-578.

1459 A.2d 311, 314-315 (1983): State v. Trevis, 116 RI. 678.

681-683. 360 A.2d 548, 550-551 (1976): State v. LaRwe. 19

Wash. App. 841, #45-846, 578 P.2d 66, 69 (1978)

14

cumstances of his confinement are changed for pur-

poses of the interview in question.°

B. Miranda Does Not Restrict An Undercover Agent's

Activities

Even if Mathis is interpreted to require that for-

mal questioning in the prison setting always be pre-

ceded by Miranda warnings, that principle should not

be extended to communications between suspects and

undercover agents. Conversations between a suspect

and an undercover agent bear no resemblance to the

kind of custodial interrogation that gave rise to the

Court’s Miranda decision, and the principles of

Miranda therefore cannot sensibly be applied in that

setting.

A meeting between an undercover agent and a

prisoner bears none of the hallmarks of the coercive

environment with which the Court in Miranda was

concerned. In this case, for example, respondent

would not have assumed that “Vito Bianco” had any

* Formal investigative questioning of an inmate typically

results in a change in the normal circumstances of the in-

mate's confinement that may justify a finding that the inmate

was in custody for Wirenda purposes. That was the case in

Mathis, and it was also the case in several of the court of

appeals cases that have held Miranda applicable to interrova-

tion of a prison inmate. See Battie v. Estelle, 655 F.2d 692,

699 (5th Cir. 1981) (defendant awaiting trial in county jail

was entitled to Miranda warnings when he was examined by

a court-appointed psychologist); Palmigiano v. Barter, 510

F.2d 534, 536-537 (let Cir. 1974), rev'd on other vrounds,

425 U.S. 308 (1976) (Miranda warnings required when in-

carcerated suspect was interviewed in connection with prison

disciplinary proceeding); see also Estelle Vv. Smith, 451 US

454, 466-469 (1981) (warnings must precede court-ordered

psychiatric examination of prisoner)

15

legal authority to interrogate him or that he had any

legal responsibility to answer, that their conversations

would continue until he confessed to murdering

Stephenson, or that his insistence on remaining silent

might lead to physical abuse. To the contrary, re-

spondent was free to ignore Agent Parisi when they

were introduced, to skip their midnight meeting, or

to leave it at any time.

Respondent may have believed that it was neces-

sary to recount the details of the Stephenson murder

in order to impress “Vito Bianco,” and respondent

probably felt secure that doing so was harmless, be-

cause he and “Vito Bianco,” in Charlton’s words,

were members of the same “profession.” Tr. 44. But

respondent certainly did not incriminate himself be-

cause of any fear that “Vito Bianco” would see to his

imprisonment or would impose some form of extra-

legal punishment if he remained silent. That fact

is crucial because it was the psychological technique

of subtly instilling that fear in a suspect in custody

that Miranda sought to counteract through the re-

quirement of warnings. Miranda was not even re-

motely concerned with rescuing a suspect from fool-

hardy bravado.

That the practice of using an undercover agent is

designed to elicit a confession from a suspect provides

no ground for objection. Miranda did not forbid the

government from obtaining a confession to prove a

defendant’s guilt. In fact, Miranda emphasized that

“[eJonfessions remain a proper element in law en-

forcement. Any statement given freely and volun-

tarily without any compelling influence is, of course,

admissible in evidence.” 384 U.S. at 478. In subse-

quent decisions, the Court has also refused to treat

as a form of “custodial interrogation” law enforce-

ment practices that did not offend the concerns under-

16

lying Miranda, even though in each case the officers

either believed or knew that the suspect might in-

criminate himself. See, e.¢., Oregon v. Mathiason,

429 U.S. 492 (1977): California v. Beheler, 463 U.S.

1121 (1983); Minnesota v. Murphy, supra: Arizone

v. Mawro, 481 U.S. 520 (1987). The practice here

cannot be treated as the equivalent of a classic sta-

tionhouse interrogation simply because both share the

same goal or have similar prospects of success. It can

be deemed custodial interrogation under Miranda

only if it creates the same coercive environment that

Miranda described.

Only a readily identifiable law enforcement officer

ean instill such fear in a suspect. As Professor

Kamisar has written, a police officer’s actions “ ‘take

on color from [his] uniform, badge, gun and de-

meanor.’” Kamisar, Brewer v. Williams, Massiah,

and Miranda: What Is “Interrogation”? Wher Does

It Matter?, 67 Geo. L.J. 1, 67 (1978). The threaten-

ing nature of the setting is important, because the

question whether a suspect has been subjected to a

custodial interrogation “focuses primarily upon the

perceptions of the suspect, rather than the intent of

the police.” Rhode Island v. Innis, 446 U.S. 291, 301

(1980).° Thus, if an officer “carries neither badge

nor gun and wears not ‘police blue,’ but the same

prison gray” as the suspect, Kamisar, 67 Geo. L.J. at

67, “the interplay of interrogation and custedy,”

Innis, 446 U.S. at 299, that troubled the Court in

Miranda is not present, because “the suspect thinks

"See also Berkemer Vv. McCarty, 468 U.S. 420, 442 (1984)

(“A policeman’s unarticulated plan has no bearing on the

question whether a suspect was ‘in custody’ at a particular

time; the only relevant inquiry is how a reasonable man in

the suspect's position would have understood his situation.”)

17

he is deuling only with someone ‘in the same boat,’ as

well as the same cell.”. Kamisar, 67 Geo. L.J. at 67.

As the Third Circuit has explained:

[I]t is inconceivable that the defendant could

have experienced the coercion-born type of fear

and intimidation set forth in Miranda, because

when he volunteered this incriminatory state-

ment, he thought that he was conversing with a

fellow partner in crime, not a policeman. The

predicate of Miranda is the inherently coercive

nature of police interrogation of a person in cus-

tody; it cannot have application to a situation

where one, not under stress of interrogation, sim-

ply volunteers a statement which perchance turns

out to be inculpatory.

United States v. Fioravanti, 412 F.2d 407, 413-414,

cert. denied, 396 U.S. 837 (1969) (footnote omitted).

See also United States v. Willoughby, 860 F.2d at 23-

24."

"As Professor Kamisar has noted, 67 Geo. LJ. at 65

(footnotes omitted) :

When a suspect is arrested and brought downtown for

police questioning, at least in the case of a major felony,

he will often be in “a crisis-laden situation. The stakes

for him are high—often his freedom for a few or many

years—and his prospects hinge on decisions that must be

quickly made: to cooperate and hope for leniency. to try

and talk his way out, to stand adamantly on his rights.”

But why, when he thinks he is merely conversing with a

fellow prisoner, when he has no notion that he is con-

fronting the police, would a suspect worry about “how

much leniency cooperation may earn, how likely fast talk

is to sueceed, and how much a steadfast refusal to talk

mav contribute to a decision by the police, prosecutor or

judge to ‘throw the book’ at him”?

One can deliberately elicit incriminating statements

from a person without having him realize it—that is

18

It is wrong to contend that Miranda warnings are

necessary to create a “level playing field” because a

suspect in jail is especially vulnerable due to his con-

finement and therefore may unwisely utter incrimi-

nating statements to other inmates who turn out to

be informants." Although confinement generates anx-

iety, Innis recognized that the anxiety caused by in-

carceration does not require the suppression of a sus-

pect’s unwarned statements. 446 U.S. at 300; see

Kamisar, 67 Geo. L.J. at 61-62. It is also irrelevant

that an inmate mistakenly believes that his cellmate is

a fellow prisoner. “This Court has never embraced

the theory that a defendant’s ignorance of the full

consequences of his decisions vitiates their voluntari-

ness.” Oregon v. Elstad, 470 U.S. 298, 316 (1985).

See also Beheler, 463 U.S. at 1125-1126 n.3. The

police do not violate Miranda by listening to a suspect

who voluntarily but unwittingly incriminates himself

by admitting conduct that he does not know to be

criminal. So, too, the police do not violate Miranda

by listening to a suspect who voluntarily but unwit-

what happened in Massiah. But how can one envelop

someone in a “police-dominated atmosphere” without

having him realize it? How can one produce an “inter-

rogation environment” well-calculated to “subjugate the

individual to the will of his examiner” when the individ-

ual is not even aware that he is in the presence of “his

examiner”? That is why, I submit, whatever may lurk

in the heart or mind of the fellow prisoner (or apparent

friend or colleague), if it is not “custodial police interro-

gation” in the eve of the beholder, then it is not such

interrogation within the meaning of Miranda.

* See Dix, Undercover Investigations and Police Rulemak-

ing, 58 Tex. L. Rev. 203, 230 (1975); White, Police Trickery

in Inducing Confessions, 127 U. Pa. L. Rev. 581, 604-605

(1979).

19

tingly incriminates himself by confessing facts about

a known crime to an unknown police officer. Neither

case has the element of coercion that prompted the

Court in Miranda to scrutinize the process of in-

custody interrogation.

In this case, the state appellate court was highly

critical of Agent Parisi’s use of a ruse to hoodwink

respondent into believing that the agent was a fellow

“ex-con” seeking to escape from jail. That court be-

lieved that permitting law enforcement officers to act

in that manner would improperly allow “the police

to do indirectly what they may not do directly,” to

“subvert” Miranda, and to render “wholly meaning-

less” a suspect’s Fifth Amendment privilege. Pet.

App. 8a-9a. A few other courts have endorsed that

view as well.° That view, however, fundamentally

misconceives the concerns informing Miranda.

In the undercover setting, the officer is not “using

the coercive nature of confinement to extract confes-

sions that would not be given in an unrestrained en-

vironment.” Mauro, 481 U.S. at 530. Rather, the

officer is taking advantage of the suspect’s misplaced

trust in a fellow prisoner. But there is nothing im-

proper about requiring a suspect to bear the risk of

disloyalty. It is well settled that a person can be

made to bear the risk that his acquaintances will

reveal his statements to a larger audience. “The risk

inheres in al] communications which are not in the

®*See United States v. Brown, 466 F.2d 498 (10th Cir.

1972); State v. Perkins, 753 S.W.2d at 570-571: State v.

MeMullan, 712 S.W.2d 881 (Mo. Ct. App. 1986); Holyfield

Vv. State, 101 Nev. at 801-804, 711 P.2d at 839-841; State v.

Travis, 116 R.I. at 681-683, 360 A.2d at 550-551. Contra

United States v. Willoughby, 860 F.2d at 283-24: Hamiiton

v. State, 62 Md. App. at 611-616, 490 A.2d at 767-770. Cf.

United States v. Fioravanti, 412 F.2d at 413-414.

20

sight of the law privileged,” Lopez v. United States,

873 U.S. 427, 450 (1963) (Brennan, J., dissenting),

and communications made during the course of a con-

spiracy to break out of “a rinky-dink jail” and assault

a prison guard in the process do not fit into that

category.

Nothing in Miranda put an end to that police prac-

tice, even for a suspect in custody. “The sole concern

of the Fifth Amendment, on which Miranda was

based, is governmental coercion.” Colorado v. Con-

nelly, 479 U.S. 157, 170 (1986). This Court’s deci-

sion in Hoffa v. United States, 385 U.S. 293 (1966),

proves that the use of undercover agents does not

amount to coercion. While Hoffa was on trial, he

frequently met with a labor official named Edward

Partin who was under indictment and who, unbe-

knownst to Hoffa, was cooperating with federal law

enforcement authorities. During their conversations,

Hoffa revealed his attempts to bribe members of the

jury, and Partin recounted those statements at

Hoffa’s subsequent trial on jury tampering charges.

385 U.S. at 294-299. This Court rejected Hoffa’s con-

tention that admission of Partin’s testimony violated

the Fifth Amendment, holding that “no claim has

been or could be made that [Hoffa’s] incriminating

statements were the product of any sort of coercion,

legal or factual.” Jd. at 304. The Court also found

that Hoffa’s conversations with Partin were ‘wholly

voluntary,” even though Partin had duped Hoffa into

believing that he was a sympathetic colleague. /bid.

See also Frazier v. Cupp, 394 U.S. 731, 739 (1969)

(rejecting the claim that the confession of a defend-

ant in custody was involuntary on the ground that he

was falsely told that his co-defendant had turned

state’s evidence) ; Procunier v. Atchley, 400 U.S. 446,

453-454 (1971) (the use of an informant to obtain

21

a statement from a suspect in prison does not render

his statement involuntary) ; Flittie v. Solem, 775 F.2d

933, 944-945 (8th Cir. 1985) (en banc), cert. denied,

475 U.S. 1025 (1986) (same).

This case is identical to Hoffa in that respect. Nei-

ther Agent Parisi nor Charlton intimidated or threat-

ened respondent in any manner. Respondent volun-

tarily—and without hesitation—described how he had

murdered Stephenson. The only difference between

this case and Hoffa is that respondent was incarcer-

ated when he spoke to Agent Parisi. But while that

fact bears on the question whether Agent Parisi used

the coercive nature of respondent’s confinement to ex-

tract a confession that he would not have made out-

side of jail, see Mauro, 481 U.S. at 530, it is entirely

immaterial to the question whether the use of an

undercover agent to talk to a suspect renders any

ensuing confession involuntary.

Hoffa stands for the proposition that the use of

deception to elicit a confession from a suspect does

not violate the Self-Incrimination Clause. That deci-

sion is also a complete answer to concerns voiced by

the Illinois appellate court that the policies under-

lying Miranda forbid the police from surreptitiously

obtaining incriminating statements from a suspect.

Although Miranda was not applicable to Hoffa’s

ease, the Court’s subsequent decision in Oregon v.

Mathiason, swpra, demonstrates that Miranda does not

require a different result. Mathiason rejected the claim

that an officer’s act of falsely telling a suspect that

the suspect’s fingerprints had been found at the scene

of a crime rendered the interview custodial in nature.

‘Whatever relevance this fact may have to other is-

sues in the case,” the Court held, “it has nothing to

do with whether [Mathiason] was in custody for

purposes of the Miranda rule.” 429 U.S. at 495-496.

Respondent also can draw no support from the

Court’s Sixth Amendment decisions in Massiah v.

United States, 377 U.S. 201 (1964), United States

v. Henry, 447 U.S. 264 (1980), and Maine v. Moulton,

474 U.S. 159 (1985). Those cases held that the gov-

ernment may not use an undercover agent to elicit

incriminating statements from a suspect once he is

charged with a crime. After the initiation of formal

charges, the Sixth Amendment ensures that the ac-

cused may rely on counsel as a medium between him

and the State, and thus imposes on the government

the “affirmative obligation not to act in a manner that

circumvents the protections accorded the accused by

invoking this right.” Moulton, 474 U.S. at 176. The

Court’s decision in Miranda, by contrast, did not im-

pose any such obligation on the police, since it did

not forbid the police from attempting to obtain a sus-

pect’s confession. Miranda only limits an officer’s

opportunity to use a coercive setting to “extract” a

confession from a suspect. Mauro, 481 U.S. at 530.

Because that does not occur in cases like this one, the

Miranda rules are inapplicable; those rules do not

apply “outside the context of the inherently coercive

custodial interrogations for which [they were] de-

signed.” Roberts v. United States, 445 U.S. 552, 560

(1980). See also Murphy, 465 U.S. at 430; Mathia-

son, 429 U.S. at 495; Beckwith v. United States, 425

U.S. 341 (1976).

The rule adopted by the Illinois appellate court

would not, of course, mean that undercover officers

would give suspects Miranda warnings before engag-

ing them in conversation; no officer could possibly do

so while maintaining his cover. Rather, the unavoid-

able consequence of that rule would be that law en-

forcement authorities would have to either release a

suspect and then hope to find him (or impose 24-hour

23

surveillance on him) before pursuing their investiga-

tion, or abandon the use of undercover agents to en-

gage incarcerated suspects in conversation.” The first

approach poses the risk that the suspect will flee or

commit additional crimes while at large. The seconc

approach needlessly hampers effective law enforce-

ment without protecting any legitimate constitutional

interest.

Undercover investigations are often vitally impor-

tant in obtaining proof of a suspect’s guilt. Accord-

ingly, this Court has repeatedly upheld the use of

undercover operations and the deceit that necessarily

accompanies that practice." In some cases, such as

‘That may not be all that the Illinois appellate court

sought to prohibit. It criticized not only “[Agent] Parisi’s

inquiry whether [respondent] had ever ‘done someone,’” but

also “the placement of [Agent] Parisi in the cellblock with

[respondent],” Pet. App. 6a. That court may have intended

to suggest that the latter technique alone constitutes a cus-

todial interrogation under Miranda. If so, that suggestion is

clearly in error under Rhode Island v. Innis, supra, because

placing Agent Parisi in respondent's cellblock was no more a

custodial interrogation than was placing Innis in the police

squad car. Cf. Kuhlmann v. Wilson, 477 U.S. 436, 458-459

(1986) (holding that the use of a jailhouse informant to listen

to, but not question, the defendant does not violate the Sixth

Amendment; “the defendant must demonstrate that the police

and their informant took some action, beyond mere listening,

that was designed deliberately to elicit incriminating re

marks”).

'"! See, e.g., Grimm vy. United States, 156 U.S. 604, 610-611

(1895); Price v. United States, 165 U.S. 311, 315 (1897);

Casey V. United States, 276 U.S. 418, 418-420 (1928) ; Lopez

Vv. United States, supra: Lewis v. United States, 385 U.S. 206

(1966); Hoffa v. United States, supra; United States v.

White, 401 U.S. 745 (1971): United States v. Russell, 411

U.S. 423 (1973); Hampton v. United States, 425 U.S. 484

(1976).

24

this one, the use of an undercover agent is likely to be

the only way for the authorities to identify and prose-

cute the responsible party. The costs imposed on law

enforcement by the Illinois court’s rule are therefore

quite high; yet, the rule’s benefits to Fifth Amend-

ment values are virtually nil. Although the Court in

Miranda believed that the inherently coercive setting

created by a classic police custodial interrogation jus-

tified the regulation of that particular police investi-

gative practice, the use of an undercover agent simply

does not raise the same self-incrimination concerns.

CONCLUSION

The judgment of the Appellate Court of Illinois,

Fifth Judicial District, should be reversed.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

PAUL J. LARKIN, JR.

Assistant to the Solicitor General

NOVEMBER 1989

D ©. &. COvERnmenT reemTine orrice, 1908 262205 %66