Amicus Curiae Brief — Arizona v. Roberson

Supreme Court. U.S,

¥ , FILED

No. 87-354

Jn the Supreme Court of the Gni er

OCTOBER TERM, 1987

STATE OF ARIZONA, PETITIONER

V.

RONALD WILLIAM ROBERSON

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF AFIZONA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

CHARLES FRIED

Solicitor General!

WILLIAM F. WELD

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

JOEL M. GERSHOWITZ

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the police may interrogate a suspect after he

has requested counsel in the course of a separate investiga-

tion of an unrelated offense.

(1)

TABLE OF CONTENTS

Page

ee en nn ecw eee vb eeeeeeees |

I EE } 2

Introduction and summary of argument ................... 5

Argument:

The Edwards rule should not be extended to interrogations

conducted in the course of separate investigations ....... 7

I 18

TABLE OF AUTHORITIES

Cases:

Boles v. Foltz, 816 F.2d 1132 (6th Cir. 1987) ............ 14

Callender v. Florida, 383 U.S. 270 (1966) .............. 4

Connecticut v. Barrett, No. 85-899 (Jan. 27, 1987)... ... 7, 16

Edwards v. Arizona, 451 U.S. 477 (1981)... 000000... 1, 4, 5

/ 7, 11, 16

Faretia v. California, 422 U.S. 806 (1975) .............. 4

Maine v. Moulton, 474 U.S. 159 (1985) ...........0..... 17

McFadden v. Commonwealth, 225 Va. 103, 300 S.E.2d

Ne cece cece ccecce he)

Michigan v. Mosley, 423 U.S. 96 (1975) ............. 11, 12, 14

Michigan v. Tucker, 417 U.S. 433 (1974)... 2.0200... 16

Miranda v. Arizona, 384 U.S. 436 (1966) .............. SF

Moran v. Burbine, 475 U.S. 412 (1986) .......0........ 15

New York v. Quarles, 467 U.S. 649 (1984)... .0..0..... 16

Oregon v. Bradshaw, 462 U.S. 1039 (1983) ............ 7, 8, 16

Oregon v. Elstad, 470 U.S. 298 (1985) ............5, 13, 15, 16

People v. Hammock, 121 Ill. App. 3d 874, 460 N.E.2d

378 (1984), cert. denied, 470 U.S. 1003 (1985) ........ 14

Radovsky v. State, 296 Md. 386, 464 A.2d 239 (1983) .... 14

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)... 2... 15

Smith v. Illinois, 469 U.S. 91 (1984) 2000, 5-6, 7, 16

Solem v. Stumes, 465 U.S. 638 (1984)... 00 000000...... 7

State v. Cornethan, 38 Wash. App. 231, 684 P.2d 1355

EE 15

State v. Harriman, 434 So.2d 551 (La. Ct. App. 1983)... 15

State v. Newton, 682 P.2d 295 (Utah 1984) ...... 000... i)

(111)

IV

Page

Cases — Continued: ge

State v. Routhier, 137 Ariz. 90, 669 P.2d 68 (1983), cert. ae

denied, 464 U.S. 1073 (1984)... 6... eens .

State v. Taylor, 56 Or. App. 703, 643 P.2d 379 (1982) .... "

State v. Willie, 410 So. 2d 1019 (La. PD 2c 5eteu Kes “A

United States v. Renda, 567 F. Supp. 487 (E.D. Va. tls

BD cc oudekncnusvesbet heaters sesesenseceseeres: ;

United States v. Washington, 43) U.S. 181 (1977) venee ; 15

United States ex rel. Espinoza v. Fairman, 813 F.2d 11 fo

(7th Cir. 1987) .......--6-555- veneeesees teeeeeeeees

United States ex rel. Karr v. Wolff, 556 F. Supp. 760 m

(N.D. Ill. 1983), vacated, 732 F.2d 615 (7th Cir. 1984) .

Wyrick v. Fields, 459 U.S. 42 ED ¢ wie ce cn vaueenne een

Constitution:

U.S. Const.: #

SS EOP POI POTS Pema rey TT 8 2

i oe ee

—— . , ere rrerrrr ry eres

Miscellaneous:

R. Stern, E. Gressman & S. Shapiro, Supreme Court Prac- ,

tice (6th ed. 1986) ........- 0. ee eee teeter teens

Jn the Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-354

STATE OF ARIZONA, PETITIONER

Vv.

RONALD WILLIAM ROBERSON

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ARIZONA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

The issue in this case is whether respondent’s waiver of

his rights under Miranda v. Arizona, 384 U.S. 436 (1966),

was invalid because the police officers who questioned him

initiated their interrogation after respondent had previous-

ly requested counsel in an unrelated investigation. This

case requires the Court to consider whether the principles

of Edwards v. Arizona, 451 U.S. 477 (1981), apply to in-

terrogations conducted in the course of an investigation

that is separate from the one in which the suspect has in-

voked his right to counsel.

The Court’s resolution of this case is likely to affect the

conduct of interrogations by federal law enforcement of-

ficers and the admission of voluntary statements by de-

fendants in federal criminal prosecutions. The problem

presented by this case can arise, for example, when federal

agents investigate a person who is in state custody and is

also the subject of a state criminal investigation. That per-

son may invoke his right to counsel in response to ques-

tioning by state investigators, but subsequently agree to

(1)

2

talk to federal agents who are conducting a separate in-

vestigation of a different criminal episode. If the rule in

Edwards were applied in such a case, the statements ob-

tained by the federal investigators would be inadmissible

at trial, even though those statements were obtained after

the federal agents had advised the suspect of his rights

under Miranda and the suspect had waived those rights. In

our view, the policies underlying the Court’s decisions in

Miranda and.Edwards do not require the exclusion of

voluntary statements made by suspects in such circum-

stances.

STATEMENT

Respondent was arrested on April 16, 1985, in Tucson,

Arizona, at the scene of a burglary. Officer Perez, the ar-

resting officer, gave respondent the warnings required by

Miranda v. Arizona, 384 U.S. 436 (1965). Respondent

then stated that he wanted a lawyer before answering any

questions (Pet. App. 12; 4/3/86 Tr. 23, 26).' Officer Perez

did not attempt to question respondent.

Shortly thereafter, Officer Quinn arrived at the scene of

the arrest. Officer Quinn had been told that respondent

had agreed to give a statement (10/17/85 PM Tr. 8).

Quinn confirmed that respondent had been advised of his

constitutional rights, and Quinn was told by officers at the

scene that respondent was willing to speak with them

(ibid.). Officer Quinn then spoke briefly with respondent,

asking if it was true that respondent was willing to give a

statement. Respondent indicated that he was (/bid.).

' Citations to “4/3/86 Tr.” refer to the transcript of the suppression

hearing in this case. Citations to “10/17/85 PM Tr.” reter to the

transcript of the afternoon hearing on motions in respondent's earlier

trial. That transcript was made a part of the record in this case (4/3/86

Tr. 59).

3

Before any interrogation, respondent was taken to the

Eastside Police Station in Tucson. There, without objec-

tion from respondent, Officer Quinn recorded respond-

ent’s statement concerning the April 16 burglary and his

drug connections (10/17/85 PM Tr. 9-12). Shortly there-

after, respondent gave another recorded statement to Of-

ficer Garrison. Like Officer Quinn, Officer Garrison was

not told that respondent had made a request for counsel at

the time Officer Perez first gave him the Miranda warn-

ings (Pet. App. 20; 4/3/86 Tr. 23-24, 52).

Meanwhile, Detective Cota-Robles, operating out of the

Downtown Tucson Police Station, was investigating a

burglary that had occurred on April 15, the day before

respondent’s arrest. Detective Cota-Robles traced a car

that had been seen at the site of that burglary to respond-

ent, and he learned that respondent was already in custody

at the Eastside Station. Accordingly, Cota-Robles visited

respondent in jail on April 19, explained that he wished to

discuss the April 15 burglary, and gave respondent com-

plete Miranda warnings (4/3/86 Tr. 8-20). Respondent

agreed to answer Detective Cota-Robles’ questions and did

not express any desire to consult an attorney. Cota-Robles

then questioned respondent about the April 15 burglary

and recorded the interview on a tape recorder (id. at

19-20). At some point thereafter, a review of Officer

Perez’s report of the arrest revealed that respondent had

requested an attorney at the time of his arrest in connec-

tion with the April 16 burglary.

Respondent was tried first for the April 16 burglary and

was convicted. His statements regarding that burglary

were admitted at trial only for impeachment purposes

(4/3/86 Tr. 27). Respondent was then prosecuted on the

charges arising oubfihe April 15 burglary —the charges at

issue in this case. After a hearing, the district court sup-

pressed the statements respondent had made to Detective

Cota-Robles concerning the April 15 burglary. The district

4

court concluded that suppression was required under the

Arizona Supreme Court’s decision in State v. Routhier,

137 Ariz. 90, 669 P.2d 68 (1983), cert. denied, 464 U.S.

1073 (1984), even though the Cota-Robles interview was

“in no way a fruit of the April 16th violation” (4/3/86 Tr.

50-51).2 The district court also noted that “nobody is ques-

tioning Detective Cota-Robles’ motives or his methods.

* * * (T]here’s nothing wrong with what he had done ex-

cept for the fact that [respondent] had invoked his right to

counsel earlier” (id. at 50). Nonetheless, because respond-

ent had asserted his right to counsel ait the time of his ar-

rest, the district court held that the fruits of any subse-

quent interrogation — even interrogation conducted during

a separate investigation of a different crime—had to be

suppressed.

The district court then granted the State’s motion to

dismiss the case without prejudice, in order to enable the

State to take an appeal of the suppression motion (4/3/86

Tr. 60). The Arizona Court of Appeals affirmed on the

basis of the Routhier decision (Pet. App. 21-24), and the

Arizona Supreme Court denied the State’s petition for

review (id. at 25).?

> The Routhier case interpreted this Court’s decision in Ed..urds v.

Arizona, 451 U.S. 477 (1981), to require that once a suspect requests

counsel, all police-initiated interrogation must cease, including inter-

rogation concerning unrelated offenses.

) The State has denominated its petition as one for certiorari to the

Arizona Supreme Court. Because that court denied the State’s petition

for discretionary review, we believe that the petition should be

directed to the Arizona Court of Appeals, Division Two. See faretta

v. California, 422 U.S. 806, 812 (1975). We believe the proper course

at this juncture is for the Court to treat the papers in this case as a peli-

tion for a writ of certiorari to the Arizona Court of Appeals, Division

Iwo, and to direct the judgmem in this case to that court. See

Callender v. Florida, 383 U.S. 279 (1966); R. Stern, E. Gressman & S.

Shapiro, Supreme Court Practice 350-351 & 1.61 (6th ed. 1986).

INTRODUCTION AND SUMMARY OF ARGUMENT

In Miranda v. Arizona, 384 U.S. 436 (1966), this Court

conciuded that custodial interrogation by law enforcement

officers generates “pressures which work to undermine the

individual’s will to resist and to compel him to speak where

he would not otherwise do so freely” (id. at 467). To com-

bat those pressures, the Court in Miranda devised a pro-

phylactic rule that was designed to “assure that the in-

dividual’s right to choose beiween silence and speech re-

mains unfettered throughout the interrogation process”

(id. at 469). One of the requirements of the rule created in

Miranda is that before questioning a suspect in custody, a

law enforcement officer must inform him that he has the

right to the presence of an attorney (id. at 444). If the

suspect requests counsel, the Miranda Court held, “the in-

terrogatioi: must cease until an attorney is present” (id. at

474).

In Edwards v. Arizona, 451 U.S. 477 (1981), the Court

created a new rule to deal with cases in which a request for

counsel is made after Miranda warnings have been given.

The Court in Edwards held that when a request for

counsel has been made, the suspect “is not subject to fur-

ther interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates

further communication, exchanges, or conversations with

the police” (id. at 484-485). Edwards established a bright-

line, prophylactic rule that, like Miranda itself, “provides

a remedy even to the defendant who has suffered no iden-

tifiable constitutional harm.” Oregon v. Elstad, 470 U.S.

298, 307 (1985). The justification given for the new rule

was the concern that “[i]n the absence of such a bright-line

prchibition, the authorities through ‘badger[ing]’ or ‘over-

reaching’—explicit or subtle, deliberate or vuninten-

tional — might otherwise wear down the accused and per-

suade him to incriminate himself notwithstanding his

earlier request for counsel’s assistance.” Smith v. Illinois,

6

469 U.S. 91, 98 (1984). In light of that concern, the Court

has adopted a per se rule barring police interrogation after

a request for counsel; the Court has refused to examine the

circumstances of each case to determine whether the

police-initiatead questioning following a request ‘tor

counsel led to a voluntary waiver of the suspect’s rights.

We submit that there is a class of cases — of which the in-

stant one is an example —in which the competing concerns

of protecting suspects from police coercion and minimiz-

ing interference with levitimate investigative activities re-

quire the striking of a different balance from the one

struck in Edwards. The results of police-initiated inter-

rogation of a suspect who has previously requested

counsel should not be suppressed when *he new interroga-

tion occurs in the course of an investigation that is in-

dependent of the one in which the request i: counsel was

made. In that setting, where full Miranda ‘arnings are

given before the new interrogation begins, and where the

suspect does not request counsel in connection with the in-

terrogation, the risk of police “badgering” is insubstantial,

and the burden on the suspect is minimal. Moreover,

unlike the case in which the suspect has decided that he

wants to deal with the police through counsel with respect

to a particular investigation, there are good reasons that

may cause a suspect to decide not to invoke counsel in con-

nection with a different and unrelated investigation. A

blanket assumption that a different conclusion on the

suspect’s part is likely to be the product of police coercion

is not justified when separate investigations are involved.

The considerations on the other side of the balance also

cul against extending Edwards to cases such as this one.

Applying the Edwards rule to interrogations arising trom

separate investigations would impose a_ significantly

greater burden on law enforcement than is imposed by ap-

plying Edwards in the typical single-investigation context.

While all law enforcement officials involved in a single in-

vestigation can reasonably be required to be aware that the

suspect has requested counsel and to treat him accord-

ingly, it is far more burdensome to require every in-

vestigator to determine whether any suspect he questions

in custody has previously requested counsel in connection

with any unrelated investigation. Moreover, to extend the

Edwards rule to interrogations occurring in the course of

unrelated investigations would deprive the police of an ex-

tremely valuable investigative resource — interrogation —

withour requiring the suspect to indicate in any way that

he wishes counsel in connection with the new investiga-

tion. Before shutting the door on all such investigative op-

portunities, we submit that it is not too much to ask that

the suspect at least indicate that he wants the door to be

shut.

ARGUMENT

THE EDWARDS RULE SHOULD NOT BE EXTENDED TO

INTERROGATIONS CONDUCTED IN THE COURSE OF

SEPARATE INVESTIGATIONS

The rule adopted by this Court in Edwards v. Arizona,

451 U.S. 477 (1981), prohibits the police from questioning

a suspect who has invoked his right to counsel until the

suspect obtains counsel, unless the suspect himself initiates

discussions with the police. The Edwards case and the

cases that have applied the Edwards rule* have all involved

interrogations relating to a single criminal episode, con-

duct ‘in the course of a single criminal investigation. The

ques ~* in this case is whether the rule in Edwards should

be extended to prohibit law enforcement officials

* See Connecticul v. Barrett, No. 85-899 (Jan. 27, 1987); Surtle s

lilinois, 469 U.S. 91 (1984); Solem v. Stamnes, 465 U.S. 638 (1984):

Oregon v. Bradshaw, 462 U.S. 1039 (1983); H vrick v. bields, 459 ULS.

42 (1982).

8

from questioning a suspect if the suspect has previously in-

voked his right to counsel in connection with a separate in-

vestigation of a different crime. We submit that it should

not. Whatever the benefits of the prophylactic rule of Ed-

wards as weighed against its costs to effective law enforce-

ment, the benefits are fewer and the costs are significantly

greater when the rule is extended to prohibit police inter-

rogations that take place in the course of separate criminal

investigations.

1. The concern that underlies the Edwards rule is that

absent a strict prohibition against renewed interrogation

after a suspect invokes his right to counsel, “an accused in

police custody [may be] badgered by police officers in the

manner in which the defendant in Edwards was.” Oregon

v. Bradshaw, 462 U.S. 1039, 1044 (1983). That concern is

less serious when the suspect is questioned in the course of

an entirely separate investigation. In order to justify ini-

tiating contact with the suspect, the police must establish

that they are in fact conducting a separate investigation. In

order to obtain a statement that is admissible at trial, they

must obtain a valid waiver of the suspect’s right to remain

silent and his right to counsel. And, under Edwards, they

may not initiate further inquiries if the suspect invokes his

right to counsel in connection with the second investiga-

tion, as he did in connection with the first. To hold that

the per se rule of Edwards is inapplicable to the initiation

of questioning relating to a separate investigation thus

does not give the police license to pressure the suspect until

he finally gives in and agrees to speak with them.

The extra burden imposed on a suspect by not extending

the Edwards rule to interrogations that are part of a

separate investigation is slight; if the suspect wishes

counsel for the new investigation, he must simply assert

that right in response to the police questioning. In light of

Edwards, he will not have been subjected in the original

investigation to repeated inquiries about his readiness to

9

talk to the police, and he will have no reason to doubt that

his choice among the options presented by the Miranda

warnir.zs will be honored. All he is required to do is to ad-

vise the investigator that he wishes the assistance of

counsel beyore being questioned in connection with the

new investigation.

In a case like Edwards, a suspect who requests the

assistance of counsel but is then interrogated in spite of his

request may assume that the “right” to counsel is not real,

or at least that the police have no intention of respecting it.

By contrast, in the context of a separate investigation,

when a law enforcement officer explains that he is in-

vestigating an offense that is unrelated to the offense for

which the suspect is being held, there ‘s no reason for the

suspect to conclude that if he requests on attorney before

answering questions in connection with the new inquiry,

his request will be ignored.

The facts of this case illustrate this point. It is

reasonably clear that respondent had previously agreed to

talk to Officers Quinn and Garrison while knowing that

they were unaware of his earlier request for counsel. See

10/17/85 PM Tr. 8 (respondent replied affirmatively to

Quinn’s inquiry about whether “it was true he was willing

to give a statement”) and 4/3/86 Tr. 23-24 (prosecutor ex-

plains that Garrison inquired of Perez, in respondent’s

presence, whether respondent had been advised of his

rights, and upon being given a simple affirmative answe7,

then asked respondent whether he wanted to talk). Instead

of correcting their misapprehension and informing them

that he had requested counsel, respondent simply changed

his mind and decided to talk.

Officer Perez, of course, should have told Quinn and

Garrison about respondent’s request for counsel, and his

failure to do so led to the exclusion of respondent’s

statements from the State’s case-in-chief in the prosecution

relating to the April 16 burglary. That much was required

10

by Edwards. But the context makes it clear that respond-

ent’s failure to reiterate his request for counsel to Detective

Cota-Robles, even after Detective Cota-Robles gave

respondent complete Miranda warnings, could not have

been the result of any doubt on respondent’s part that the

police would honor a request for counsel if one were

made. Moreover, Detective Cota-Robles tape-recorded his

interview with respondent. That recording provided fur-

ther assurance, subject to review by a court, that Detective

Cota-Robles did not obtain respondent’s agreement to talk

by “badgering” him, but that respondent’s willingness to

discuss the April 16 burglary with Detective Cota-Robles

was the product of his informed free will. In sum, the facts

of this case, which may be fairly representative of cases in

which police seek to question a suspect in connection with

a separate investigation, demonstrate that the per se rule

of Edwards is not needed in such cases to protect the

suspect from police efforts to induce him to withdraw his

prior invocation of counsel.

While Edwards is designed to protect the suspect’s ex-

pressed wishes from heing disregarded, it is by no means

clear that extending Edwards to a case like this one would

have that effect. In contrast to a case involving a single of-

fense, the suspect’s wishes are not so easily ascertained

when different investigations are involved. Where only a

single investigation is at issue, it may be unlikely that the

suspect will experience an unprovoked change of heart

regarding the advantages of speaking to the police without

counsel, after he has first concluded that it is in his interest

to seek the assistance of counsel. In that setting, when the

suspect changes his mind after the police renew contact

with him, the Court has concluded that the risk is high that

the suspect’s decision is the product of police compulsion,

whether subtle or overt. On the other hand, where the

suspect is faced with a separate investigation of a different

crime, his judgment as to the need for counsel in connec-

1]

tion with that investigation may reasonably be quite dif-

ferent from his judgment as to the need for counsel in con-

nection with the first investigation. Cf. United States v.

Renda, 567 F. Su, p. 487, 490 (E.D. Va. 1983) (Renda was

able “to differentiate between crimes he was willing to talk

about in the absence of counsel and crimes he was un-

willing to talk about in the absence of counsel.”).

Even after invoking the right to counsel in connection

with one matter, a suspect may have good reasons for

wanting to speak with the police about the offenses in-

volved in the new investigation, or at least to learn from

the police what the new investigation is about so that he

can decide whether it is in his interest to make a statement

about that matter without the assistance of counsel. The

suspect might wish to provide the police with information

that he believes is exculpatory, or he might wish to offer in

that case “ ‘immediate cooperation with the authorities in

the apprehension and conviction of others or in the

recovery of property [which] wouid redound to his benefit

in the form of a reduced charge.’ ” Edwards v. Arizona,

451 U.S. at 491 n.1 (Powell, J., concurring in the result)

(quoting Michigan v. Mosley, 423 U.S. 96, 109 n.1 (1975)

(White, J., concurring in the result)). The difference in the

suspect’s desires with respect to the two investigations may

turn on very real differences in the nature of the two in-

vestigations. To take the most obvious example, the

suspect may know he is guilty of the crime involved in the

first investigation, but not guilty of the crime involved in

the second. If Edwards is applied to such cases, the police

will not be free even to discuss the facts of the second in-

vestigation with the suspect in the absence of

counsel—something that may actually work to the

suspect’s disadvantage by denying him the chance to

resolve the second case quickly if he has an alibi or some

other ready answer to the police suspicions.

12

The Court has recognized the risk that “a blanket pro-

hibition against the taking of voluntary statements or a

permanent immunity from further interrogation,

regardless of the circumstances, would transform the

Miranda sateguards into wholly irrational obstacles to

legitimate police investigation activities, and deprive

Suspects Of an Opportunity to make informed and in-

telligent assessments of their interests” (Michigan v.

Mosley, 423 U.S. at 102). Edwards prevents investigators

from discussing their case with a suspect once he has re-

quested the assistance of counsel, unless the suspect

himself initiates the discussion. While Edwards is based on

the view that this ban on communication is necessary to

prevent the risk that the suspect will be badgered into

relinquishing his rights, it does have the disadvantage,

from the suspect’s point of view, of depriving him of in-

formation that may be relevent to his decision whether to

provide his side of the story to the investigators. When a

single investigation is involved, the suspect is aware that

the investigation is proceeding, and he can initiate renewed

communications if he wishes. But extending the Edwards

rule to a new and unrelated investigation deprives the

suspect of knowledge of the very existence of the new in-

vestigation, so that there may be no chance for him to ex-

ercise that choice.

2. Not only is the risk that suspects will be coerced into

abandoning their Fifth Amendment rights considerably

smaller where independent investigations are invoived

than in the situation typified by the Edwards case, but the

interference with law enforcement activities that would

result from applying the Edwards rule in this context is

significantly greater than in cases like Edwards. It is one

thing to require the officers who are involved in the in-

vestigation that led to the arrest and the administration of

the Miranda warnings to be aware of the suspect’s

response to those warnings, and to require them to respect

13

his decision not to discuss the case in the absence of

counsel. It is quite another matter to require officers who

are pursuing different investigations, perhaps even for dif-

ferent prosecutorial entities, to determine whether a

suspect has previously requested the advice of counsel in

any other investigation in which he may have been im-

plicated. The sort of careful record checking that is ap-

propriate in title searches is simply out of place in the con-

text of a fast-breaking criminal investigation. Cf. Oregon

v. Elstad, 470 U.S. at 316 (“In many cases, a breach of

Miranda procedures may not be identified as such until

long after full Miranda warnings are administered and a

valid confession obtained.”). Even if the officer conduct-

ing the new investigation does attempt to determine

whether the suspect has asserted his right to counsel, that

information may not be readily available or entirely

reliable because of inadequacies in the custodian’s record-

keeping. It is not reasonable to require an official of one

jurisdiction to rely on the recordkeeping capabilities of an

entirely different jurisdiction to protect the integrity of his

investigation. >

We do not suggest that the admissibility of the fruits of

the second interrogation should turn on whether the sec-

ond investigator was aware of the original request for

counsel. That approach puts a premium on ignorance, and

thus encourages a lack of communication between in-

vestigating officials. It also ignores the basis for the

Miranda warnings—to protect the suspect’s right to

choose whether he wishes to speak to the authorities with-

> In this case the two investigations were both conducted by the

Tucson police, although the district court did find that Cota-Robles,

whose investigation was penalized, did “nothing wrong” (4/3/80 Ir

50). We are particularly concerned, however, with the situation where

federal investigators — from the FBI or the DEA, for example — may

wish to interrogate suspects who are being held in state or loca!

custody. In that situtation, no purpose is served by penalizing the

federal investigation for inadequacies in local recordkeeping.

4

out counsel. Instead, we believe the correct analysis

recognizes that the separate investigation presents the

Suspect with a new situation, in which he may wish to

make a different choice about whether to consult with

counsel before he speaks. Cf. Michigan v. Mosley, 423

U.S. at 111 (White, J., concurring in the result). In that

setting, the prospect that his choice will be different is suf-

ficient to justify a simple inquiry to ascertain his wishes.

We also do not suggest that Edwards is inapplicable any

time the new interrogation concerns an offense different

from the one for which the suspect was originally arrested.

Several courts have rejected a “separate offenses” limita-

tion on Edwards on the ground that such a limitation can

be manipulated by the investigators: “To rule otherwise

might encourage law enforcement officers to select minor

charges as a basis for an arrest, when major charges could

be brought, in order to have more than one ‘shot’ at an ar-

restee who at first refuses to talk and asks for counsel.”

State v. Taylor, 56 Or. App. 703, 707-708, 643 P.2d 379,

382 (1982); accord State v. Routhier, 137 Ariz. at 97, 669

P.2d at 75; Boles v. Foltz, 816 F.2d 1132, 1141 (6th Cir.

1987) (Gibson, J., dissenting); United States ex rel. Karr v.

Wolff, 556 F. Supp. 760, 765 (N.D. Ill. 1983), vacated on

other grounds, 732 F.2d 615 (7th Cir. 1984). See also

United States ex rel. Espinoza v. Fairman, 813 F.2d 117,

125-126 & n.7 (7th Cir. 1987); United States v. Renda, 567

F. Supp. 487 (E.D. Va. i983); Radovsky v. State, 296 Md.

386, 464 A.2d 239 (1983); People v. Hammock, 121 Ul.

App. 3d 874, 460 N.E.2d 378 (1984), cert. denied, 470

U.S. 1003 (1985). Our position does not turn on the fact

that the new interrogation relates to a different crime, but

on the fact that it is part of an independent investigation.

The “independent investigation” limitation on Edwards at-

fords no such opportunity for prosecutorial manipulation,

and where the subsequent interrogation has occurred in

the course of an independent investigation, the courts have

15

generally refused to apply the Edwards rule. Siale v.

Willie, 410 So. 2d 1019, 1026-1027, 1028 (La. 1982); S/ale

v. Harriman, 434 So. 2d 551, 553-554 (La. Ct. App. 1983);

McFadden v. Commonwealth, 225 Va. 103, 300 S.E.2d

924, 927 (1983); State v. Cornethan, 38 Wash. App. 231,

236, 684 P.2d 1355, 1359 (1984). See Sate v. Newton, 682

P.2d 295, 298 (Utah 1984) (separate investigation; counsel

provided before second inquiry).

In weighing the costs of extending the Edwards rule to

cases involving independent investigations, it is important

to keep in mind the vital role of police interrogation in fur-

thering law enforcement. As this Court has recognized,

“ “he need for police questioning as a tool for effective en-

forcement of criminal laws’ cannot be doubted. Admis-

sions of guilt are more than merely ‘desirable’; they are

essential to society’s compelling interest in finding, con-

victing, and punishing those who violate the law.” Moran

v. Burbine, 475 U.S. 412, 426 (1986) (citations omitted);

see also Oregon v. Elstad, 470 U.S. at 305; United States

v. Washington, 431 U.S. 181, 186-187 (1977); Schneckloth

v. Bustamonte, 412 U.S. 218, 225 (1973). Because of the

severe costs it would impose on law enforcement, any rule

that forbids police interrogation bears a heavy burden of

justification. While the Court concluded that the problem

at issue in Edwards was sufficiently serious to carry that

burden, the problem presented in the present context is

not. Accordingly, in light of the costs to law enforcement,

this Court should refuse to extend the prophylactic rule of

Edwards to a class of cases like this one, which does not

pose the risk that led to the fashioning of the rule.

This Court has followed a similar approach in applying

Miranda and Edwards in other contexts. Because Miranda

and Edwards establish prophylactic rules and do not

directly enforce constitutional prohibitions, the Court has

16

weighed the benefits of applying those rules against their

costs each time it has considered whether to apply the rules

to a new class of cases. See, e.g., New York v. Quarles,

467 U.S. 649, 657 (1984); Oregon v. Elstad, 470 U.S. at

308-309; Michigan v. Tucker, 417 U.S. 433, 450-451

(1974). For example, in Connecticut v. Barrett, No. 85-899

(Jan. 27, 1987), slip op. 5, the Court pointed out that the

Edwards rule, like other aspects of Miranda, “is not itself

required by the Fifth Amendment’s prohibition on coerced

confessions, but is instead justified only by reference to its

prophylactic purpose.” In the situation presented in that

case — where the suspect asked for counsel before making

a written statement, but agreed to make an oral statement

without counsel —the Court concluded that the benefits of

applying the rule in Edwards did not outweigh its costs.

The Court therefore held that Edwards did not bar oral in-

lerrogation, even though the suspect had requested

counsel for other purposes. The same analysis should

apply in this case, where respondent invoked counsel only

with respect to the April 16 burglary.

In previous cases, this Court has rejected suggestions

that the admissibility of a suspect’s statements in an

Edwards-type case should be based on a consideration of

all the factors in the particular case. See, e.g., Oregon v.

Bradshaw, 462 U.S. at 1048-1049 (Powell, J., concurring

in the judgment); Edwards v. Arizona, 451 U.S. at

487-488 (Burger, C.J., concurring in the judgment); and

id. at 491 (Powell and Rehnquist, JJ., concurring in the

result). Instead, the Court has preferred the safeguards of

a “bright-line” rule that guards against even the possibility

of the subtle coercive tactic of wearing down the suspect's

will to resist by repeated inquiries. See, e.g., Smith v. II-

linois, 469 U.S. at 98. But where the subsequeni police in-

quiry relates to an investigation that is independent of the

one in which the request for counsel was made, the

justification for that “bright-line” rule is greatly reduced.

17

Therefore, once it is clear that the police inquiry at issue

relates to an investigation separate from the one in which

the suspect requested counsel, the Court should not apply

the special rule of Edwards, but should rely on the tradi-

tional test for waiver. If the government can satisfy its

burden of showing that the suspect made a knowing and

intelligent waiver of his right to the assistance of counsel in

connection with the new investigation, the statements

made by the suspect in the course of that investigation

should be admitted.

Excluding statements relating to charges that arise out

of the initial investigation, while admitting statements

relating to charges that arise out of an independent, sec-

ond investigation, is consistent with this Court’s approach

in the Sixth Amendment context, see Maine v. Moulton,

474 U.S. 159 (1985). In Moulton, an informant elicited

statements from an indicted defendant that were relevant

both to the offenses for which the defendant had been in-

dicted and to other, uncharged offenses. The Court held

that the Sixth Amendment barred the admission of the

defendant’s statements in connection with the charges that

had already been initiated. The Court refused, however, to

bar the use of the statements in any later prosecutions that

might be brought in connection with the offenses that were

not already the subject of formal charges at the time the

statements were made. See 474 U.S. at 179-180 & n.15.

The same principle should apply here by analogy. The

statements obtained in the course of the investigation of

the April 16 burglary were suppressed because of the viola-

tion of Edwards in the course of that investigation. Those

statements were held to be inadmissible, except for im-

peachment purposes, in the trial on those charges, and if

offered at the trial on the April 15 burglary, they would be

inadmissible in that proceeding as well. On the other hand,

the statements respondent made in the course of the in-

dependent investigation should be admissible in the trial of

18

the charges that were the subject of that investigation —the

charges arising from the April 15 burglary. Just as the rule

of exclusion under the Sixth Amendment does not apply

with respect to matters that have not yet been made the

subject of a formal charge, the rule of exclusion under the

principles of Miranda and Edwards should not be applied

with respect to an investigative proceeding in which the

suspect has not yet requested the assistance of counsel.

CONCLUSION

The judgment of the Arizona Court of Appeals, Divi-

sion Two should be reversed.

Respectfully submitted.

CHARLES FRIED

Solicttor General

WILLIAM F. WELD

Assistant Aitorney General

WILLIAM C. BRYSON

Deputy Solicitor General

HARRIET S. SHAPIRO

Assistant to the Solicttor General

JOEL M. GERSHOWITZ

Attorney

JANUARY 1988

US GOVERNMENT PRINTING OFFICE 19868— 202 :037/60248