Amicus Curiae Brief — Arizona v. Roberson

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No. 87-354

In Che JOSEMT °

Suprene Court of the United States

October Term, 1987

THE STATE OF ARIZONA,

Petitioner,

RONALD WILLIAM ROBERSON,

Respondent.

On Writ of Certior iri to the

Supreme Court of Arizona

BRIEF AMICT CURTIAE OF

AMERICANS FOR

LPRECTIVE LAW ENFORCEMENT, INC.,,

JOINED BY

THE INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, AND THE

NATIONAL SHERIFFS’ ASSOCIATION,

IN SUPPORT OF THE PETITIONER.

OF COUNSEL:

DAVID CRUMP, ESQ

Professor of Law,

South Texas College of Law

Houston, Texas 77002

COURTNEY A. EVANS, ESQ.

General Counsel,

National Sheriffs’

Association

1450 Duke Street

Alexandria, Virginia 22314

BERNARD J. FARBER, ESQ

Special Counsel,

Americans for Effective

Law Enforcement, Inc

Chicago, Illinois 60656

DANIEL B. HALES, ESQ

PETERSON, ROSS, SCHLOERB

AND SEIDEL

President,

Americans for Effective

Law Enforcement, Inc

Chicago, Illinois 60656

WILLIAM C. SUMMERS, ESQ

Supervising Attorney,

International Association of

Chiefs of Police

13 Firstfield Road

Gaithersburg, Maryland 20878

JACK E. YELVERTON, ESQ

Executive Director,

National District Attorneys

Association

1033 *°. sirfax Street

Alexandria, Virginia 22314

FRED E. INBAU, ESQ.

John Henry Wigmore Professor

of Law, Emeritus

Northwestern University

‘School of Law

Chicago, Illinois 60611

WAYNE W. SCHMIDT, ESQ.

Executive Director,

Americans for Effective

Law Enforcement, Inc

5519 N. Cumberland

Avenue, #1008

Chicago, Illinois 60656

JAMES P. MANAK, ESQ

General! Counsel,

Americans for Effective

Law Enforcement, Inc

33 North LaSalle Street

Suite 2108

Chicago, Illinois 60602

Counsel for Amici Curtae

all

, No. 87-354

dn The

Suprene Court of the United States

October Term, 1987

THE STATE OF ARIZONA,

Petitioner,

Vv.

RONALD WILLIAM ROBERSON,

Respondent.

On Writ of Certiorari to the

Supreme Court of Arizona

BRIEF AMICI CURIAE OF

AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC.,

JOINED BY

THE INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, AND THE

NATIONAL SHERIFFS’ ASSOCIATION,

IN SUPPORT OF THE PETITIONER.

This brief is filed pursuant to Rule 36 of the Supreme

Court Rules. Consent to file has been granted by Bruce

M. Ferg, Arizona Assistant Attorney General, Counsel

for the Petitioner, and Robert L. Barrasso, Esq., Counsel

for Respondent. Letters of Consent of both parties have

been filed with the Clerk of this Court.

2

INTEREST OF AMICI

Americans for Effective Law Enforcement, Inc.

(AELE), as a_ national not-for-profit citizens

organization, is interested in establishing a body of law

making the police effort more effective, in a

constitutional manner. It seeks to improve the operation

of the police function to protect our citizens in their life,

liberties and property, within the framework of the

various State and Federal Constitutions.

AELE has previously appeared as amicus curiae

eighty-one times in the Supreme Court of the United

Staces, and thirty-six times in other courts, including the

Federal District Courts, the Circuit Courts of Appeal and

various state courts, such as the Supreme Courts of

California, Illinois, Ohio and Missouri.

The International Association of Chiefs of Police, Inc.

(IACP), is the largest organization of police executives

and line officers in the world, consisting of more than

14,000 members in 67 nations. Through its programs of

training, publications, legislative reform and amicus

curiae advocacy, it seeks to make the delivery of vital

police services more effective, while at the same time

protecting the rights of all our citizens.

The National District Attorneys Association, Inc.

(NDAA), is a nonprofit corporation and the sole national

organization representing state and local prosecuting

attorneys in America. Since its founding in 1950,

NDAA’s programs of education, training, publications,

and amicus curiae activity have carried out its guiding

purpose of reforming the criminal justice system for the

benefit of all of our citizens.

Tine National Sheriffs’ Association (NSA), is the

largest organization of sheriffs and jail administrators in

3

America, consisting of over 40,000 members. It conducts

programs of training, publications, and related

educational efforts to raise the standard of

professionalism among the Nation’s sheriffs and jail

administrators. While it is interested in the effective

administration of justice in America, it strives to achieve

this while respecting all rights guaranteed under the

Constitution.

Amici are national and state associations, and their

perspective is broad. This brief concentrates on policy

issues concerning the waiver of rights by persons subject

to law enforcement interrogation, and the need to give

law enforcement agencies clear guidance with respect

thereto. Although Petitioner is clearly represented by

capable and diligent counsel, no single party can

completely develop all relevant views of such issues as

these. We speak on behalf of law enforcement officers

and administrators nationally.

4

ARGUMENT

THE RULE OF EDWARDS V. ARIZONA, THAT

POLICE OFFICERS MAY NOT — INITIATE

INTERROGATION OF AN IN-CUSTODY SUSPECT

AFTER INVOCATION OF RIGHT TO COUNSEL, IS

NOT APPLICABLE TO A CASE IN WHICH THE

SUSPECT, HAVING INVOKED HIS RIGHTS IN

REGARD TO A CRIME THEN UNDER INVESTI-

GATION, LATER CONSENTS TO QUESTIONING

ABOUT AN UNRELATED CRIME, CONDUCTED BY

OTHER OFFICERS WHO ARE IGNORANT OF THE

PRIOR INVOCATION OF RIGHTS AND WHO

COMPLY COMPLETELY WITH THE KEQUIRE-

MENTS OF MIRANDA V. ARIZONA.

In this case the Arizona Court of Appeals, Division

Two, in an unpublished opinion, State ». Roberson, 2 CA-

CR 4474-5 (Az. Ct. App., Mar. 19, 1987), held that a

coercive environment surrounded the Respondent

(hereinafter called the "“defendant"), who was

continuously in police custody from the time of asserting

his Fifth Amendment right to counsel through the time

he was questioned outside an attorney’s presence on a

crime other than the one for which he was originally

taken into custody, that such environment never

dissipated, and, therefore, even though the defendant did

not request an attorney after being advised of his rights

prior to questioning on the second crime, the trial court

properly suppressed his statements.

The case squarely raises the question of whether the

rule of Edwards v. Arizona, 451 U.S. 477 (1981), that

police officers may not initiate interrogation of an in-

custody suspect after invocation of his right to counsel, is

applicable to a case in which the suspect, having invoked

his rights in regard to a crime then under investigation,

later consents to questioning about an unrelated crime,

‘a

conducted by other officers who are ignorant of the prior

invocation of rights and who comply completely with the

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

Amici will not duplicate the case law analysis

presented by the Petitioner in this case; instead, we

concentrate upon issues of policy that concern our law

enforcement constituency.

The position urged by defendant lacks support from

the rule established in Edwards v. Arizona. In that case

the second attempt of the police to question Edwards

was for the same offense for which he had earlier invoked

his rights under Miranda v. Arizona. In the instant case

the police questioning that is in dispute concerned a

crime totaliy unrelated to the one for which he had

claimed his right to counsel. The legitimacy of the latter

questioning, regarding which the suspect had received

and waived his Miranda rights, is supported by sound

reasons and prior authority of this Court.

In Edwards, the defendant, while a suspect in a

robbery-murder, hac been taken into custody and given

the Miranda warnings. His initial response was that he

understood his rights and was willing to submit to police

questioning. However, after being told that another

arrestee had implicated him, Edwards denied

involvement, and gave a taped statement in which he

presented an alibi. He then sought to "make a deal.”

When told that his questioner was unable to deal,

Edwards stated that he wanted an attorney, at which

point the interrogation ceased. The next morning two

other detectives, colleagues of the original questioners,

sought to question Edwards. They, too, informed him of

his rights and he stated his willingness to talk, but that he

first wanted to hear the tape recorded statement of the

alleged accomplice. After hearing part of the tape,

Edwards said that he would make a statement provided

6

it would not be taped. Then, when told that a recording

was not necessary, he confessed. Upon trial he was

convicted, and his conviction was affirmed by the

Arizona Supreme Court, which held that he had waived

both of his Miranda rights. In reversing that ruling, this

Court held that in order for a waiver to be valid,

Edwards must have initiated the statements he ultimately

wave the police, a factor the Court found to be lacking.

Three Justices concurred in the result only, with two of

them objecting to what they considered “an undue, and

undefined emphasis on a single element: ‘initiation’.” 451

U.S. at 492.

Irrespective of whatever consideration may be

accorded the reasoning of the Court in Edwards, it does

stand for the proposition that the waiver of rights

claimed under Miranda must be initiated by the suspect.

One fact that is clear, however, is that the Edwards case

involved an interrogation about the same offense

regarding which the suspect had earlier asserted his

Miranda rights.

The basic issue in the instant case was resolved, we

submit, by this Court’s decision in Michigan v. Mosley,

423 U.S. 96 (1975). In Mosley, a police detective in the

Detroit Police Department's robbery detail arrested the

defendant as a robbery suspect. After he received

Miranda warnings the arrestee stated that he did not

want to talk. No interrogation was attempted. More than

two hours later, however, another detective from the

Detroit homicide unit wanted to question Mosley

regarding an unrelated murder. This time, following a

second issuance of the warnings, Mosley waived his

rights. At first he denied any involvement, but upon

being told that an alleged accomplice had named him as

the killer, Mosley confessed. A majority of this Court,

with two Justices in dissent, ruled that there was no

Miranda violation, and that the confession was properly

held admissible as evidence.

Although Mosley was a case in which the suspect had

asserted his right to silence, and did not claim a right to

counsel, the principle established in that case is equally

applicable to the present one. As amici pointed out in

their brief in another case now pending before this

Court, Patterson v. Illinois, #86-7059, US. _, 108%.

Ct. 227 (1987), there is, in the context of Miranda, no

higher priority to be accorded a claim to counsel over a

claim to remain silent. In fact, as we stated in that brief,

one of the strongest supporters of Miranda, Professor

Yale Kamisar, has considered such a_ professed

distinction to be a “baffling” one. As he correctly pointed

out, the Court’s concern in Miranda was the protection of

the Fifth Amendment’s self-incrimination privilege, with

only an auxiliary consideration accorded the right to

counsel at a police interrogation. See, 34 Cr.L. 2101

(1983), a comment by Professor Kamisar during a

— on Supreme Court Review and Constitutional!

aw,

In other words -- and contrary to a generally

prevailing misconception, even within the legal

profession itself -- the inclusion of the right to counsel as

one of the Miranda warnings was not in deference to the

Sixth Amendment right itself, but only to bolster the self-

incrimination privilege. Both rights are equally subject to

a suspect’s waiver.

There are sound reasons in support of the position

that the police should not be foreclosed from

investigating, by means of lawful interrogation

procedures, crimes unrelated to the one for which a

suspect has invoked his rights under Miranda. This view

was succinctly and cogently expressed by Justice Potter

Stewart when he stated, in Michigan v. Mosley, 423 U.S.

at 103, that "a blanket prohibition against the taking of

8

voluntary statements or a permanent immunity from

further interrogation would transform the Miranda

safeguards into wholly irrational obstacles to legitimate

police investigative activity."

Attempts to extend Miranda beyond its alreacy

intolerable limits never cease to end. One recent

illustration is the effort, fortunately a futile one, that was

made to persuade this Court in Colorado v. Spring.

U.S. . 107 S. Ct. 851 (1987), that a waiver of Miranda

rights was invalid unless the suspect was informed of all

the crimes about which he might be questioned. With

only two dissents, this Court rejected that contention. As

some of the amici in the present case pointed out in their

brief in Spring, an acceptance by this Court of the rule

the Colorado appellate courts had adopted would have

imposed unconscionably absurd practical difficulties

upon the essential police interrogation process.

Another recent illustration of proposed absurdities of

Miranda extensions is the case of Connecticut v. Barrett,

U.S. . 107 S. Ct. 828 (1987), in which this Court was

urged, unsuccessfully, to hold that a warned suspect's

oral confession should be rejected because he

subsequently refused to sign a written one without

counsel being present. The Court made clear that the

rule in Edwards, as is true of Miranda itself, 's not

constitutionally required, but is merely a rule adopted to

avoid coercion prohibited by the Fifth Amendment. The

Court approved, in effect, the concept of selective

invocation of rights by defendants in police custody, as

took place in the instant case.

lo this end, the Miranda Court adopted

prophylactic rules designed to insulate the

exercise of Fifth Amendment rights trom the

government “compulsion, subtle or other-

wise,” that “operates on the individual to

9

overcome free choice in producing a

Statement after the privilege has been once

invoked." Miranda, supra, 384 U.S., at 474, 86

S. Ct., at 1627. See also Smith, 469 U.S., at 98,

105 S. Ct., at 4943; Oregon v. Bradshaw, 462

U.S. 1039, 1044, 103 S. Ct. 2830, 2834, 77 L.

Ed. 2d 405 (1983). One such rule requires

that, once the accused "states that he wants

an attorney, the interrogation must cease

until an attorney is present." Miranda, 384

U.S., at 474, 86 S. Ct., at 1627. See also

Edwards, 451 U.S., at 484, 101 S. Ct., at 1884.

It remains clear, however, that this prohibition

on further questioning--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. (emphasis

added). 107 S. Ct. at 832.

Mention may also be made of what was sought in the

1986 case of Moran v. Burbine, U.S. , 1068. Ct.

1135, 1141-1142 (1986), in which Justice Sandra

O'Connor, speaking for the majority of the Court, said in

response to the argument of defense counsel}, "[e]vents

occurring Outside the presence of the suspect and

entirely unknown to him can have no bearing on the

capacity to comprehend and knowingly relinquish a

constitutional right," to which the Justice added, "... we

have never read the Constitution to require that the

police supply a suspect with a flow of information to help

him calibrate his self interest in deciding whether to

speak or stand by his rights."

We urge that the Court not impose upon law

enforcement the roadblock defendant seeks to establish.

We also respectfully suggest that in its opinion the Court

give some indication that with regard to future proposed

10

extensions of Miranda’s coverage, "enough is enough.”

This may discourage further erosions upon the Court's

valuable time ‘until, hopefully, it may decide to

completely dispense with the unwarranted aspects of the

Miranda mandate itself.

If

CONCLUSION

Amici submit that the judgment of the court below

should be reversed on the basis of the law and sound

judicial policy.

Respectfully submitted,

FRED E. INBAU, ESQ.

John Henry Wigmore Professor

of Law, Emeritus

Northwestern University

School of Law

Chicsgo, Hlinois 60611

WAYNE W. SCHMIDT, ESQ.

Executive Director,

Americans for Lffective

Law Enforcement, Inc.

5519 N. Cumberland

Avenue, #1008

Chicago, Illinois 60656

JAMES P. MANAK, ESQ

General Counsel,

Americans for Effective

Law Enforcement, Inc

33 North LaSalle Street

Suite 2108

Chicago, Illinois 60602

Counsel for Amici Curiae

(Additional Counsel Listed on Next Page)

OF COUNSEL:

DAVID CRUMP, ESQ.

Professor of Law,

South Texas College of Law

Houston, Texas 77002

COURTNEY A. EVANS, ESQ.

Genera! Counsel,

National Sheriffs’ Association

1450 Duke Street

Alexandria, Virginia 22314

BERNARD J. FARBER, ESQ

Special Counsel,

Americans for Effective

Law Enforcement, Inc.

Chicago, Hlinois 60656

DANIEL B. HALES, ESQ.

PETERSON, ROSS, SCHLOERB

AND SEIDEL

President,

Americans for Effective

Law Enforcement, Inc

Chicago, Illinois 60656

WILLIAM C. SUMMERS, ESQ.

Supervising Attorney,

International Association of

Chiefs of Police

13 Firstfield Road

Gaithersburg, Maryland 20878

JACK E. YELVERTON, ESQ.

Executive Director,

National District Attorneys

Association

1033 N. Fairfax Street

Alexandria, Virginia 22314