Petitioners Brief — United States v. Green

F guprems court, WR

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No. 91-1521 JUL 1 1992 )

orrict oF THE CLERIS

Iu the Supreme Court of the Unite

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITIONER

LOWELL GREEN -

4

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

BRIEF FOR THE UNITED STATES

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

_ WHILLIAM C. BRYSON

De puty Solicitor (+6 pié ral =

ROBERT A. LONG, JR.

A S387 fant fo /} / Noli« itar’Ge rié ral

NINA GOODMAN

Roy McLEEs!

Attorneys

Department of Justices

Washinaton. D.C. 20520

- ; ~

(i?) rT ge 227i

QUESTION PRESENTED

Whether Edwards vy. Arizona, 451 U.S. 477

(1981), requires the suppression of a voluntary con-

fession because law enforcement officers initiated in-

terrogation of the suspect five months after he in-

voked his right to counsel in connection with an

unrelated offense, where the suspect consulted with

counsel and pleaded guilty to the unrelated offense

prior to the interrogation.

—

(I)

TABLE OF CONTENTS

Page

Opinion below __ 1

Jurisdiction Sch AE 1

Constitutional provision involved 2

Statement at: OR 2

Summary ofargument | aii acti 7

Argument:

The Edwards rule should not apply to an interro-

gation conducted five months after the suspect in-

voked the right to counsel in connection with an

unrelated offense, where the suspect has consulted

with counsel and pleaded guilty to that offense

prior to the interrogation Ee 11

Conclusion <n as Jee 26

TABLE OF AUTHORITIES

Cases:

Arizona V. Roberson, 486 U.S. 675 (1988) 4, 7, 9, 12,

19, 20, 22, 23

Armour & Co. Vv. Wentock, 323 U.S. 126 (1944) 14

Berkemer V. McCarty, 468 U.S. 420 (1984) 25

Boykin Vv. Alabama, 395 U.S. 238 (1969) as 15

Brady V. United States, 397 U.S. 742 (1970) 15

Connecticut V. Barrett, 479 U.S. 523 (1987) 13,14

Dunkins Vv. Thigpen, 854 F.2d 394 (11th Cir.

1988), cert. denied, 489 U.S. 1059 (1989) al 16

Edwards Vv. Arizona, 451 U.S. 477 (1981) 3,7, 11015.

14,18

Kirby Vv. Illinois, 406 U.S. 682 (1972) en 13

Kochutin V. State, 813 P.2d 298 (Alaska Ct. App.

McCarthy Vv. United States, 394 U.S. 459 (1969) 15

McFadden V. Garraghtu, 820 F.2d 654 (4th Cir.

1987) aie — | 16

MeNeil Vv. Wisconsin, 111 S. Ct. 2204 991) 13, 16,

18, 21, 24

(111)

IV

Cases—Contined : Page

Michigan V. Harvey, 494 U.S. 344 (1990) 13

Michigan V. Mosley, 423 U.S. 96 (1975) meee 21

Michigan V. Tucker, 417 U.S. 433 (1974) 24

Minnesota V. Murphy, 465 U.S. 420 (1984) 19

Minnick V. Mississippi, 111 8. Ct. 486 (1990) = 4,5, 7, 9,

12, 13, 14, 19, 23

Miranda V. Arizona, 384 U.S. 436 (1966) 7,11

Moran V. Burbine, 475 US. 412 (1986) 24

New York Vv. Quarles, 467 U.S. 649 (1984) 21,24

Oregon V. Bradshaw, 462 U.S. 1039 (1983) 13-14

Oregon V. Elstad, 470 U.S. 298 (1985) 23, 24

Patterson V. Illinois, 487 U.S. 285 (1988) 23

Schneckloth Vv. Bustamonte, 412 U.S. 218 (1973) 24

Smith v. Illinois, 469 U.S. 91 (1984) 13, 14, 19

Solem Vv. Stumes, 465 U.S. 638 (1984). 19.20

State Vv. Newton, 682 P.2d 295 (Utah 1984) 22

Tollett Vv. Henderson, 411 U.S. 258 (1973) 15

United States V. Gouveia, 467 U.S. 180 (1984) 13

United States Vv. Hell, 905 F.2d 959 (6th Cir.

1990), cert. denied, 111 S. Ct. 2858 (1991) ._

United States Vv. Skinner, 667 F.2d 1306 (9th CiF.

1982), cert. denied, 463 U.S. 1229 (1983) 16

United States Vv. Washington, 431 US. 181

(1977) 24

Walker Vv. State, 573 Soe. 2d 415 (Fla. Dist. Ct.

App. 1991), vacated and remanded, 112 S. Ct.

1927 (1992) 22

Constitution and statute:

US. Const. :

Amend. V passim

Amend. V! 13

District of Columbia Youth Rehabilitation Amend-

ment Act of 1985, D.C. Code Ann. § 24-803(e)

(1989) 2

Iu the Supreme Court of the United States

OCTOBER TERM, 1992

No. 91-1521

UNITED STATES OF AMERICA, PETITIONER

v.

LOWELL GREEN

ON WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

-

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the District of Columbia Court of

Appeals (Pet. App. la-lS8a) is reported at 592 A.2d

9S5.

JURISDICTION

The judgment of the court of appeals was entered

on May 31, 1991. A petition for rehearing was de-

nied on November 25, 1991. Pet. App. 34a-35a. On

February 11, 1992, the Chief Justice extended the

time for filing a petition for a writ of certiorari to

and including March 24, 1992. The petition was filed

on March 20, 1992. and was grayted on May 18,

1992. The jurisdiction of this Court rests on 28

U.S.C, 1257.

‘ls

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution pro-

vides, in part: “No person * * * shall be compeiled

in any criminal case to be a witness against himself.”

STATEMENT

1. On July 18, 1989, officers of the District of Co-

lumbia Metropolitan Police Department arrested re-

spondent Lowell Green on drug charges. The officers

gave respondent a printed advice-of-rights form

known as a “PD 47.” In response to the printed ques-

tion whether he was willing to talk to the police with-

out having an attorney present, respondent wrote

“No.” The officers did not attempt to question him.

Pet. App. 2a.

Respondent appeared in court the following day,

and av“attorney was appointed to represent him. On

July 28, 1989, the drug charges were dismissed at

the preliminary hearing. Respondent remained in

custody because of an unrelated juvenile matter. Pet.

App. 2a.

In August 1989, respondent was indicted on

charges of possessing a controlled substance with in-

tent to distribute it arising out of respondent's July

18, 1989, arrest. On September 27, 1989, he’ entered

a plea of guilty to the lesser included offense of at-

tempted possession of a controlled substance with in-

tent to distribute it. Pet. App. 2a.

Respondent remained in custody awaiting sentene-

ing on the drug charge.’ On January 4, 1990, a

'Rexpondent was held in the Youth Center at Lorton

Reformatory while a study was performed to determine his

suitability for treatment under the District of Columbia

Youth Rehabilitation Amendment Act of 1985. Pet. App.

2a; see D.C. Code Ann. § 24-803 (e) (1989). On February

3

Metropolitan Police Department detective obtained an

arrest warrant charging respondent with the unre-

lated 1988 murder of Cheaver Herriott. The next

day, officers brought respondent to the Police Depart-

ment’s Homicide Office for booking. The officers ad-

vised respondent of his Miranda rights, and he

agreed to waive those rights. Respondent discussed

his involvement in the murder of Herriott with the

officers, and they again advised him of his rights.

Respondent then made a videotaped statement in

which he confessed to his involvement in the robbery

and murder. Pet. App. 3a.

2. Respondent was indicted for murder. He

moved to suppress his confession, claiming that it

was involuntary and that it had been obtained in vio-

lation of Edwards y. Arizona, 451 U.S. 477 (1981).

The trial covrt initially denied respondent's mo-

tion. Pet. App. 19a-30a, The court first rejected re-

spondent’s contention that his confession was invol-

untary. After hearing testimony from Detective

Donald Gossage of the Metropolitan Police Depart-

ment and from respondent concerning the circum-

stances surrounding respondent's waiver of his Mi-

randa rights, the trial court found that “as between

those two accounts, that is the account given by [re-

spondent] and Detective Gossage, the Court credits

Detective Gossage’s account.” Pet. App. 20a. The

trial court stated:

Having made this credibility finding which leads

the Court to conclude that [respondent] was

brought to the Homicide Office of the police de-

partment, was given his Miranda Rights in the

way in which Detective Gossage testified they

were given on the stand, that [respondent] un-

26, 1990, respondent was sentenced to 15 months’ incearcera-

tion under the Youth Rehabilitation Act. Pet. App. 2a.

4

derstood his rights and that he appreciated them

and thereafter waived them, the Court finds no

basis to suppress any of these statements on the

ground that they were given in violation of Mi-

randa or were involuntarily made.

Id. at 2la-22a.

With respect to respondent’s Edwards claim, the

court noted that an “extraordinary amount of time”

had elapsed between respondent’s invocation of his

right to counsel and his confession, and that respond-

ent had had an opportunity to consult with counsel

during that time. Pet. App. 25a. Under those cir-

cumstances, the court concluded that “none of the

reasons Which underlie the [Supreme] Court's deci-

sion[s] which have addressed a crimina! defendant's

right to [counsel] under the [Sixth] Amendment and

his right not to incriminate himself umler the

[Fifth] Amendment, would be served by suppression

of these statements.” /d. at 26a.

Five days after the trial court’s ruling, this Court

decided Minnick sy. Mississippi, (1 S. Ct. 486

(1990). In light of that decision, the trial court re-

considered its ruling on respondent's Edwards claim

and ordered that respondent’s confession be sup-

pressed. Pet. App. Sla-33a.

4. The District of Columbia Court of Appeals af-

firmed. Pet. App. la-I§a. The court acknowledged

that this case differs from Edwards and other cases

decided by this Court in several ways.

First, the interrogation concerned an unrelated

crime and took place after respondent had consulted

with a lawyer. Pet. App. 6a-Sa. The court noted,

however, that the second fector was prefent in Min-

nick, and the first factor was present in Arizona vy,

Roberson, 486 US. 675 (1988). The court therefore

5 oe

concluded that Minnick and Roberson required the

court to reject the government’s reliance on those

factors. In the court’s view, to admit the challenged

evidence in this case would require that Minnick and

Roberson be “narrow[ed] “© * * to their individual

settings.” Pet. App. 7a. '

Second, the court recognized that this case differs

from the Hdwards line of cases because there was a

five-month interval between respondent’s invocation

of the Edwards right to counsel and the subsequent

interrogation. Pet. App. Sa-12a. The court stated

that “It}here is no question” that the danger of

police ‘edgering that the Edwerds rule is designed

to prevent “is reduced when the police have made no

effort to interrogate the defendant for more than five

months after his assertion of rights.” Jd. at Ra-9a.

Although the court viewed as “substantial” the gov-

ernment’s arguments against a “perpetual irrebut-

table presumption,” /d. at 9a,-lla (quoting Minnick,

111 S. Ct. at 496 (Sealia, J., dissenting)), it con-

cluded that “only the Supreme Court can explain

whether the Edwards rule is time-tethered.” Pet.

App. 11a.

Third, the court recognized that before the inter-

rogation, respondent pleaded guilty to the offense

with which he was charged when he invoked the

Edwards right. Pet. App. 12a-l4a. The court noted

(id. #t 12a) that this “might seem to be [the govern-

ment’s] mot potent argument” for distinguishing

Edward:, and that cutting off the irrebuttable pre-

sumption of Edwards when a defendant pleads guilty

“promises adherence to the requirement of some form

of bright-line rule.” Thid. The court nevertheless

concluded that a plea of guilty “is consistent with

[the defendant's! election to communicate with the

police only through counsel,” and that therefore the

tN

.

iB)

continued application of the prophylactic rule of Ld-

wards Was necessary in the circumstances of this

case. Jd. at Lda.

The court observed that “it is not unfair to ques-

tion the logic of a presumption that renders invalid

an otherwise lnowing, intelligent and voluntary

waiver of Mirande’s auxiliary pretections—and_ so

demands exclusion of a murder confession voluntary

in fact—becnuse over five months earlier, in connec-

tion with an unrelated crime, the defendant asked

for (and was afforded) the assistance of counsel.”

Pet. App. lda-l5a. The court added that, if it had

reached thé? wrong result, “then it is for the {Su-

preme} Court in this case or some future one to pro-

vide the Leitfaden—the rec’ thread—-through its de-

cisions leading to the correct result.” Jd. at dal

Judge Steadman dissented. Pet. App. 16a-18a. He

reasoned that the irrebuttable presumption of Ld-

wards should not continue to apply after a suspect

waives his Fifth Amendment right against compul-

sory self-inerimination and pleads guilty to the of-

fense that prompted the invocation of the Mdirards

right. He noted that a guilty plea represents “a sea

change in th{e] circumstances which existed at the

time the right to counsel was originally invoked.”

-The court noted (Pet. App. 5a n.2) that “[o]n appeal

frespondent! docs rot argue the constitutional involuntari-

ness of the confession as an alternative ground supporting

the suppression ruling.” The court of appeals nevertheless

stated (jd. at 14a) that respondent made a “knowing, intel-

ligent and voluntary waiver of Miranda’s auxiliary protec-

tions.” In addition, the court of appeals rejected respondent's

contention that the vovernment delayed unnecessarily in

brine ine him to court for arraignment on the murder charge.

Td, at 4a-ta n.2. Finally, the court held ('d. at 3a-4da n.1)

that this case presents “no issue of violation of [respondent's |

right to counsel under the Sixth Amendment,”

7

Pet. App. 16a. Indeed, a guilty plea “entail[s] a

knowing, voluntary, and intelligent waiver of the

Fifth Amendment right against self-incrimination

and its consequent concerns—the very right that —

Kdwards seeks to protect.” Jd. at 18a.

The government’s petition for rehearing en banc

was denied by an equally divided vote. Pet. App.

Sha-joa,

SUMMARY OF ARGUMENT

More than five months after respondent invoked

his Edwards rjght to counsel—and after he consulted

with counsel and pleaded guilty to the offense that

prompted hig invocation of the Edwards right—re-

spondent confessed to nis involvement in an unrelated

murder. Both courts below concluded that respond-

ent’s confession was voluntary, knowing, and intelli-

gent, and there is no indication that the confession

was the product of any form of police misconduct.

The court of appeals nevertheless believed that this

Court’s decisions in Miranda vy. Arizona, Edwards vy.

Arizona, Arizona y. Roberson, and Minnick vy. Missis-

sipp? required it to suppress respondent’s confession.

Those decisions established a series of prophylactic

rules designed to protect the Fifth Amendment privi-

lege against compelled self-incrimination in the con-

text of custodial interrogation. The Court has justi-

fied the creation of each of those rules on the ground

that it protects the suspect against the inherently

coercive pressures of interrogation in a police-domi-

nated setting. The Court has emphasized that the

scope of each of those prophylactic rules must be

determined by reference to the purposes that justify

the rule. In general, compliance with Miranda en-

sures that a suspect’s decision to speak to the police

is the product of a knowing, intelligent, and volun-

8

tary choice. The Edwards rule adds a second layer

of prophylactic protection. It creates an irrebuttable

presumption of coercion, but only in circumstances

in which the risk of coercion is so great as to make

such a presumption appropriate.

The Court has never held that the Edwards rule

permanently bars a suspect who invokes the right to

the presence of counsel during custodial interrogation

from waiving that right at the request of the police.

So sweeping an approach would expand the Edwards

rule far beyond its prophylactic purposes. Rather, in

each of the cases in which it has applied the Edirards

rule, the Court has assured itself that the circum-

stances presented 2 very real risk of coercion. This

ease, however, differs from this Court’s previous

cases in several critical respects, which indicate that

Edwards’ ivvebuttable presumption of coercion should

have no application here.

First, respondent entered a plea of guilty to the

charge that prompted his invocation of the Mdiwards

right to counsel hefore the police initiated interrogn-

tion. A defendant’s decision to plead guilty marks

a break in the suspect’s status as a pretris] arrestee.

In addition, it represents a waiver of the defendant’:

Fifth Amendmert privilege ageinst compelled self-

incrimination. A suspect who has waived his Fifth

Amendment privilege and pleaded guilty is unlikely

to feel badgered if the police subsequently approach

him, repeat the Miranda warnings, and seck to ques-

tion him about an unrelated offense. Just as a break

in custody dissolves the Mdowards presumption, a

guilty plea so alters an arrestee’s situation that courts

should not continue to presume, irrebuitably, that the

arrestee wishes to deal with the police only threuch

counsel. In such circumstances, the provhy!actic

rules of Miranda suffice to ensure that suspects do

9

not give statements to police unless they freely choose

to do so.

Second, more than five months elapsed between

respondent’s assertion of the Kdwards right to coun-

sel and the initiation of interrogation by the police.

In ELdwards itself, and in this Court’s subsequent

decisions applying Hdwards, the police reinitiated in-

terrogation within a short time after the suspect’s

request for counsel. Where months have passed with-

out any effort by the police to question the suspect,

however, there is no reason to presume that a suspect

will feel badgered by a police inquiry into whether the

suspect wishes to speak to them without counsel. A

perpetual irrebuttable presumption that a suspect

who has once invoked his Edwards right to counsel

may never be approached by the police as long as he

remains in custody would result in the suppression

of entirely voluntary confessions without advancing

the purposes underlying the Kdwards rule.

Third, the police initiated the interrogation only

after respondent had been provided with counsel and

had consulted with his lawyer, and the questioning

concerned a crime wholly unrelated to the offense

that prompted respondent’s invocation of the Hd-

wards right. Thus, this case is unlike both Arizona v.

Roberson, in which the police reinitiated interroga-

tion without honoring the suspect’s request for coun-

sel, and Minnick y. Mississippi, in which the re-

newed interrogation concerned the same offense that

prompted the suspect’s invocation of the Edwards

right. When a suspect’s prior invocation of the right

to counsel has been honored, and he is later ap-

proached by the police about a different offense, he

will likely understand that he is not being badgered,

but is simply being asked, in the context of the new

offense, to make an initial election as to whether he

10

will discuss the new matter with the police alone, or

only in the presence of counsel.

Because the prophylactic rules of Miranda and

Edwards are not constitutionally required, the Court

has carefully weighed the benefits of those rules

against their costs in restricting police investigations

and excluding voluntary confessions from evidence.

The costs are clear. Miranda and Edwards result in

the suppression of uncoerced confessions that, in

many cases, may be essential to the successful prose-

cution of crime. The costs are magnified by the court

of appeals’ decision, which effectively imposes a per-

petual ban on any police-initiated interrogation of a

suspect in custody who has invoked his Ldwards

right to edunsel. Because many offenders commit

multiple crimes, such a rule would extend the exclu-

sionary rule of Edwards in a way that would seri-

ously impede effective law enforcement.

The countervailing benefits of such an extension

of Edwards would be minimal. A person in respond-

ent’s position already has the protection of Miranda

warnings. He is thus unlikely to feel badgered

to speak with the police when they approach him

long after his invocation of the Edwards right to

counsel, seeking to question him about an unre-

lated crime. Any additional protection of the Fifth

Amendment privilege that might result from apply-

ing the Edwards rule in that context is far out-

weighed by the high costs that such an application

would impose on society.

+5 1]

ARGUMENT

THE EWARDS RULE SHOULD NOT APPLY TO AN

INTERROGATION CONDUCTED FIVE MONTHS

AFTER THE SUSPECT INVOKED THE RIGHT TO

COUNSEL IN CONNECTION WITH AN UNRELATED

OFFENSE, WHERE THE SUSPECT HAS CON-

SULTED WITH COUNSEL AND PLEADED GUILTY

ba THAT OFFENSE PRIOR TO THE INTERROGA-

ION

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

Court concluded that custodial interrogation gener-

ates “pressures which work to undermine the indi-

vidual’s will to resist and to compel him to speak

where he would not otherwise do so freely.” /d. at

467. To counteract those pressures, the Court devised

a set of prophylactic rules designed to protect the

Fifth Amendment privilege in the context of custodial

interrogation. The Court held that before conducting

custodial interrogatien, the police must advise a sus-

pect of his right to remain silent, his right to consult

with counsel and have counsel present during inter-

rogation, and his right to have counsel appointed for

him if he is indigent. In addition, the police must

inform the suspect that if he waives those rights and

males a statement, anything he says may be used

against him in court. 384 U.S. at 467-473. Those

procedures are necessary, the Court concluded, to

ensure that the coercive pressures of custodial inter-

rogation do not lead a suspect to relinquish his priv-

ileve aeainst compulsory self-incrimination “where

he would not otherwise do so freely.” Jd. at 467.

lifteen years later, in Edwards y. Arizona, 451

U.S. 477 (1981), the Court announced an additional

prophylactic rule for cases in which the suspect in-

vokes his right to have counsel present during cus-

12 .

todial interrogation. The Court held that following

such a request, a suspect “is not subject to further

interrogation by the authorities until counsel has been

made available to him, unless the accused himself ini-

tiates further communication, exchanges, or conver-

sations with the police.” /d. at 484-485.

In subsequent decisions, the Court has elaborated

further upon the prophylactic rules established in

Miranda and Edwards. In Arizona vy. Roberson, 486

U.S. 675 (1988), the Court extended the principle of

Edwards to interrogations conducted in the course

of separate investigations, holding that a suspect’s

request for counsel bars subsequent police-initiated

custodial interrogation “[w]hether [the] reinterroga-

tion concerns the same or a different offense.” /¢. at

683-685, 687. And in Minnick v. Mississippi, 111

S. Ct. 486 (1990), the Court held that permitting a

suspect who has requested counsel to consult with his

lawyer before reinitiating custodial interrogation is

not sufficient to satisfy the Edwards rule. Instead,

the Court held that “when counsel is requested, inter-

rogation must cease, and officials may not reinitiate

interrogation without counsel present, whether or not

the accused has consulted with his attorney.” /i/. at

491,

The court of appeals felt constrained by the pro-

phylactie rules established in Miranda, Edwards, Pol-

evson, and Minnick to suppress respondent’s confes-

sion. The court did so even though the police ques-

tioned respondent about an offense unrelated to the

one that prompted his invocation of the Pdiwards right

to counsel: even though more than five months passer!

between his invocation of the Ldirards right and his

interrogation: and even though respondent had con-

sulted with counsel and pleaded guilty to the initia!

13

offense before the police approached him for question-

ing with respect to the second offense. Because apply-

ing the Ldwards rule in the circumstances of this

case would not advance the purpose underlying that

rule, the courts below erred in suppressing respond-

ent’s confessian.’

|. The Ldwards rule, like other applications of

Miranda, “is not itself required by the Fifth Amend-

ment’s prohibition on coerced confessions, but is in-

stead justified only by reference to its prophylactic

purpose.” Connecticut vy. Barrett, 479 U.S. 523, 528

(1987). The Court has repeatedly stated that the

justification for the prophylactic rules established in

Ldwards and the cases following it is the need to

“prevent police from badgering a defendant into waiv-

ing his previously asserted Miranda rights.” McNeil

v. Wisconsin, 111 8, Ct. 2204, 2208 (1991) (quoting

Jlichigan vy. Harvey, 494 U.S. 344, 350 (1990)): see

Minnick v. Mississippi, 111 8. Ct. at 489; Smith v.

Illinois, 469 U.S. 91, 98 (1984); Oregon v. Bradshaw,

The Sixth Amendment right to counsel is not at issue in

this. case. The Sixth Amendment right attaches only “at

or after the initsation of adversary judicial criminal pro-

ceedings—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.” United

States Vv. Govecia, 467 U.S. 180, 188 (1984) (quoting Kirby

V. liners, 406 US. 682, 689 (1972) (plurality opinion) ).

At the time respondent invoked his right to counsel, adver-

saar’y judicial criminal proceedings had not been initiated on

the murder charve-——or, for that matter, on the unrelated

drug charves. Although respondent’s Sixth Amendment right

to counsel on the drug charges had attached at the time he

waived his Miranda rights, the Sixth Amendment right did

not «xtend to the unrelated murder charge at issue in this

cuse, See MeNed Vv. Wisconsin, 111 8. Ct. 2204, 2207-2208

(1991) (Sixth Amendment right to counsel is “offense-

specific”).

14

462 U.S. 1089, 1044 (1983). The concern underlying

the Evwards rule is that “[i]n the absence of such a

pricht-line prohibition, the authorities * * ° might

* * wear down the accused and persuade him to

incriminate himself notwithstanding his earlier re-

quest for counsel’s assistance.” Smith y. Ilinois, 469

U.S. at 98. And because the Edwards rule establishes

a second layer of prophylaxis on top of the protections

provided by Miranda, the Court has applied Edwards

only in circumstances where the Court has perceived

a substantial risk of coercion.

The Court has never held that the Edwards rule

permanently bars a suspect who invokes the right to

the presénce of counsel during custodial interroga-

tion from waiving that right at the request of the

police.’ Such a permanent, irrebuttable presumption

would sweep far more broadly than necessary to pro-

tect the Fifth Amendment privilege. Several factors

disiinguish this case from the Court’s previous /d-

wards decisions. Taken singly or in conjunction, those

factors indicate that it is highly unlikely that the

reinitiation of police questioning wore down respond-

‘It is true that there is language in this Court's previous

decisions that, if interpreted without regard to the factual

settings in which those cases arose, could be read to sugyest

that the Edwards presumption lasts in perpetuity, or at least

for so long as the suspect remains in custody. See Minnick,

111 S. Ct. at 491; Edwards, 451 U.S. at 482. But “words

of * * * opinions are to be read in the light of the facts

of the case.” Armour & Co. Vv. Wantock, 323 U.S. 126, 133

(1944). Moreover, the Court has emphasized that its pro-

phylactic rules should not be read so broadly, but rather

must be understood in light of the prophylactic purposes

that justify them. See Connecticut V. Barrett, 479 U.S. at

528.

15

ent and induced him to confess. For that reason,

there ‘s no justification for applying the irrebuttable

presumption of the Edwards rule.

a. First, this ease differs from the Court’s previous

Ldiwards cases because a pivotal event intervened be-

tween respondent’s invocation of his Edwards right

and the police interrogation: prior to the interroga-

tion about the murder, respondent entered a plea

of guilty to the drug charge that had prompted his

invocation of the Edwards right to counsel.

A guilty plea “represents a break in the chain of

events which has preceded it in the criminal process,”

Tollett v. Henderson, 411 U.S. 258, 267 (1973), and

constitutes a waiver of the Fifth Amendment right

not tu be compelled to incriminate oneself. Boykin

\. Alabama, 395 U.S. 238, 242 (1969); McCarthy v.

United States, 394 U.S. 459, 466 (1969).

Central to the [guilty] plea and the foundation

for entering judgment against the defendant is

the defendant’s admission in open court that he

committed the acts charged in the indictment.

He thus stands as a witness against himself

feven though] he is shielded by the Fifth

Amendment from being compelled to do so.

Brady v. United States, 397 U.S. 742, 748 (1970).

Because a guilty plea marks a sharp break in the

proceedings, and because a guilty plea constitutes a

waiver of the same Fifth Amendment right that is

protected by the Miranda and Edwards rules, it does

not make sense automatically to treat a defendant

who has pleaded guilty as if he were still a pretrial

arresiee, To the contrary, the entry of a guilty plea

to the charge as to which the defendant invoked his

Edwards yight should be sufficient to lift the irre-

16

buttable presumption that any subsequent waiver of

that right is the product of police coercion.

In this case, the court of appeals applied the /d-

wards presumption despite respondent’s guilty plea,

because it concluded that respondent’s decision to

plead guilty to the drug charge was not necessarily

inconsistent with a continuing desire to “deal with

government officials only through an attorney.” Pet.

App. Ilda. We agree with the court of appeals that a

guilty plea is not necessarily inconsistent with a con-

tinuing desire to deal with the government only

through counsel. But we disagree with the court’s

implicit conclusion that the Edwards presumption can

be rebutted only by an event that conclusively estab-

lishes that a suspect has decided to speak with the

police in counsel’s absence.

The fallacy of that position is demonstrated by the

generally accepted principle that the Edwards pre-

sumption does not survive a break in custody. See

McNeil vy. Wisconsin, 111 S. Ct. at 2208 (Hdiwaris

rule applies “assuming there has been no brea in

custody”); Dunkins v. Thigpen, 854 F.2d 394, 397

(Lith Cir. 1988), cert. denied, 489 U.S. 1059 (1989) ;

McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir.

L987): United States vy. Skinner, 667 F.2d 1306, 1309

(9th Cir. 1982), cert. denied, 463 U.S. 1229 (1983).

A break in custody, like a guilty plea, does not conclu-

sively establish that the suspect now wishes to speak

to the police directly. Indeed, a suspect who has in-

voked the Ldwards right to counsel and subsequently

been released from custody may well be inclined to

adopt the same course if he is subsequently taken

ijte custody and questioned. The courts nevertheless

have concluded that the Fifth Amendment privilege

dues not require the auxiliary protection of the Ld-

17

wrards vule following a break in custody. The reason

a break in custody ends the Edwards presumption

thus is not because it conclusively establishes that

a suspect will thereafter wish to speak to the police,

but rather because it is so dramatic a change in cir-

cumstances that it is no longer reasonable irrebut-

tably to presume the contrary.

The “break in custody” cases are merely specific

examples of a broader point: the irrebuttable pre-

sumption from Ldiwards should not apply when there

is a significant change in the accused’s status prior

to the interrogation. In each of the cases in which

this Court has applied Edwards to require suppres-

sion of a confession, the accused was a pretrial ar-

restee both when he invoked his Ldiwards right to

counsel and when the police reapproached him. In

that settinv, the Court concluded that there was no

objective reason to believe that the accused would take

au Cifferent view of whether he should speak with the

nolice outside the presence of counsel. Where the

s‘ulus of the accused has changed dramatically, as it

does once he is released from custody or after an

alindication of guilt (whether after a guilty plea

r after trial), the assumption that he wishes to have

the uss'stance of counsel in all of his dealings with

(he police is much less compelling. In a case such as

ibis one, the relevant question is therefore not whether

an intervening plea of guilty conclusively establishes

that a suspect wishes to speak to the police directly,

but whe'her such a plea renders unreasonable the

coy cued application of Edwards’ irrebutable pre-

sumption that a subsequent decision to speak with

the police on their request is the product of coercion,

rather than a_ knowing, intelligent, and voluntary

decision by the suspect.

18

In sum, there is no justification for continuing to

apply the Ldwards presumption once a suspect's re-

quest for counsel has been honored and he has entered

a guilty plea to the charges that prompted him to

invoke the right to counsel. Because a guilty plea

marks the end of the investigative process that led to

‘he suspect’s invocation of his Edwards right, and

because the plea reflects the defendant’s willingness to

waive his Fifth Amendment right with regard to the

charged offense, the police should be permi'ted to

approach the subject, repeat the ‘Jiranda warnings,

and seek to determine if he would now like to speak

with them about an unrelated offense. If the suspect

is still unwilling “to communicate with the police

except through an attorney, he can simply tell them

that when they give him the Miravda warnings.” Me-

Neil v. Wisconsin, 111 8. Ct. at 2210. In those cir-

cumstances, the prophylactic rule of Miranda suffices

to ensure that suspects do not give statements to the

police unless they freely choose to do so. !

b. A second, and related, factor distinguishing

this case from previous Edwards decisions is the “ex-

traordinary amount of time” that elapsed between

respondent’s invocation of his right to counsel and

his confession. Pet. App. 25a. The Court’s previous

decisions applying the Ldwards rule have involved

repeated police-initiated questioning within a short

time after a suspect’s arrest. In Ldivards itself, the

police officers reinitiated interrogation only one day

after the suspect invoked his right to counsel. See

451 U.S. at 478-479. In both Minnick and Reherson,

only three days elapsed between the suspect’s invoca-

tion of the right to counsel and the reinitiation of

1!

interrogation, See 111 S, Ct. at 488-489; 486 U.S,

at 678."

Unlike the suspects in this Court’s previous /d-

wards cases, respondent was not subjected to re-

peated police-initiated interrogation within a period

of a few days. To the contrary, the police made no

effort to question respondent for more than five

months after his assertion of the Fdwards right. The

initiation of interrogation five months after a sus-

pect invokes his rivht to counsel in no way resembles

the “persistent attempts by officials to persuade fa

suspect] to watve his rights” that the Ed:rards rule

is designed to prevent. See Minnick v. Mississippi,

111 8, Ct. at 491. Consequently, it does not make

sense to treat a suspect who has been in custody for

months the same as a pretrial arrestee who recently

was subject to police interrogation and asserted the

Ldwards right.

A suspect approached for questioning only twice

in five months is unlikely to feel “badgered” by the

police. Similarly, the susnect is unlikely to conclude

from the second approach that the police were not

serious about the suspect’s right to request that coun-

sel be present during questioning and that they in-

tend to proceed with questioning without regard to

the suspect’s desire for counsel. Cf. Minnesota vy.

Murphy, 465 U.S. 420, 433 (1984) (“[T]he coercion

inherent in custpdial interrogation derives in large

measure from an interrogator’s insinuations that the

interrogation will continue until a confession is ob-

"See also Smith v. Illinois, 469 US. at 98-99 (Edwards

rule was violated where, after suspect requested counse'

during administration of Miranda warnings, police officer

immediately proceeded to finish advising suspect of his

Miranda rights and then pressured suspect to answer ques-

tions without an attorney) ; Solem v. Stumes, 465 U.S. 638,

20

tained.”). Because application of the Edwards rule

in this context would not promote the rule’s anti-

badgering purpose, theve is no justification for in-

dulging the irrebuttable presumption that the officers’

inquiry into whether the suspect wishes to speak to

them without counsel will overbear the will of the

suspect and compel him to speak when he would

otherwise remain silent.

Citing this Court’s “emphasis on the need for a

bright-line rule in this area,” Pet. App. lla, the

court of appeals felt constrained to hold that the

prophylactic rules established in Edwards, Roberson,

and Minnick barred the police from reinitiating in-

terrogation of respondent on any subject for as long

as he remained in custody, despite the intervening

cireumstances of his consultation with counsel and

entry of a guilty plea. To be sure, a rule that the

Edwards presumption lasts forever, or at least as

long us the suspect remains in custody, has at least

the appearance of clarity.”. This Court has recog-

612 (1921) fassumine, for purposes of deciding whether

Edwords would be applied retroactively, that police violated

Edwards rule when they twice reinitiated custodial interro-

vation within one day after suspect invoked right to counsel).

® Althoueh such a rule can be clearly stated, it has other

features that make it ill-suited to serve as a_ bright-line

euld to police as they perform their investigative functions.

Many suspects commit multiple crimes, and persons in long-

term custody often become suspects in other offenses. More-

ever, suspects or prisoners are often transferred from one

jail or prison to another, and may at different times be

questioned by officers from various local, state, or federal

law enforcemont agencies. It is one thing to require the

police to determine whether a suspect has recently invoked

the richt to counsel! under Miranda. See Roberson, 486

'"S at 687-688. It is quite another to require the police

ty determine whether # suspect in long-term custody has

ever invoked the Edwards right at any time, in any place,

21

nized, however, that prophylactic rules should be

“clear and unequivocal’ * * * only when they guide

sensibly.” McNeil v. Wisconsin, 111 S. Ct. at 2211.

See also New York vy. Quarles, 467 U.S. 649, 658

(1984) (adopting exigent circumstances exception to

Miranda even though the exception “to some degree

* * * lessen[s] the desirable clarity of that rule’).

In Michigan vy. Mosley, 423 U.S. 96, 104, 107 (1975),

the Court concluded that police officers “scrupulously

honored” the suspect’s assertion of the right to silence

when they “suspended questioning entirely for a

significant period before beginning the interrogation

that led to [the suspect’s] incriminating statement.”

Although the Court’s approach in WJosley blurred the

bright-line quality of the J/iranda rules to some ex-

tent, the Court made clear that Mosley rests on the

same concern that underlies Kdwards’ rule prohibit-

ing the reinitiation of interrogation following a sus-

pect’s invocation of the right to counsel—the danger

that the police will “persist[] in repeated efforts to

wear down [the suspect’s| resistance and make him

change his mind.”” 423 U.S. at 105-106. Consequently,

ly, in the Edwards context, as well as the context of

a suspect who asserts the right to remain silent, im-

posing “a blanket prohibition against the taking of

voluntary statements or a permanent immunity from

further interrogation, regardless of the circum-

stances, would transform the Miranda safeguards

into wholly irrational obstacles to legitimate police

investigative activity.” Mosley, 423 U.S. at 102.

Thus, at least when more than a few days have

passed since the suspect’s invocation of his Edwards

during any interrogation by any police officer. Consequently,

whatever the facial clarity of a perpetual Edwards rule, it

would be extraordinarily difficult to apply as a guide to

police conduct.

22

right, and when the suspect is not simply continuing

to be held on the strength of his initial arrest, the

irrebuttable presumption of Edwards should give

way.’

e. Finally, this case differs from the Court’s ear-

lier Edwards rulings because respondent was ap-

proached by the police concerning the murder only

after his previous request for counsel in connection

with the drug offense had been honored. Respondent

was provided with counsel and had consulted with his

lawyer months before the police sought to question

him about the murder, which was wholly unrelated

to the drug charge that had prompted his invocation

of the Edwards right. Thus, this case is unlike either

Arizona y. Roberson, in which the police reinitiated

interrogation without honoring the suspect’s request

for counsel, or Minnick vy. Mississippi, in which the

renewed interrogation concerned the same offense

7 See United States v. Hall, 905 F.2d 959, 963 (6th Cir.

19990) (“neither Edwards nor Roberson can be interpreted

* * * to grant * * * a blanket protection continuing ad

infinitum’), cert. denied, 111 S. Ct. 2858 (1991); 905 F.2d

at 965 (Ryan, J., concurring) (presumption that waiver of

Miranda rights was the product of inherently compelling

pressures of custodial interrogation rebutted when three

months elapsed between assertion of Edwards right to counsel

and reinitiation of interrogation) ; State v. Newton, 682 P.2d

295, 298 (Utah 1984) (Edwards presumption rebutted where

three months elapsed between first and second interrogation,

counsel was made available to the defendant in the interim,

and renewed questioning concerned an unrelated offense).

But see Kochutin v. State, 813 P.2d 298, 304 (Alaska Ct.

App. 1991) (applying Edwards rule despite one-year interv al

between invocation of right to* counsel and police-initiated

interrogation) ; Walker v. State, 5383 So. 2d 415, 416 (Fla.

Dist. Ct. App. 1991) (suggesting that Edwards rule could

remain in effect “for the rest of the [suspect's] life”), vacated

and remanded, 112 S. Ct. 1927 (1992).

23

that had prompted the suspect’s invocation of the

right to counsel. The fact that counsel had been made

available to respondent eliminated the coercive pres-

sures that arise when police reinitiate custodial inter-

rogation of a “suspect who has been denied the coun-

sel he has clearly requested.” See Roberson, 486 U.S.

at 686 & n.6. And the fact that the questioning con-

cerned an unrelated offense greatly reduced the possi-

bility that respondent would be badgered into making

a statement by repeated police-initiated questioning.

See Minnick, 111 S. Ct. at 491 (discussing “‘persist-

ent attempts by officials to persuade [suspects] to

Waive [their] rights’’).

When a suspect’s request for counsel has _ been

honored and the renewed questioning concerns an

offense that is unrelated to the one that prompted the

request, the suspect is much less likely to perceive

the reinitiation of interrogation as badgering by the

police. Instead, the suspect will likely understand

that he is simply being asked, in the context of the

new offense, to make “tan initial election as to whether

he will face the State’s officers during questioning

with the aid of counsel, or go it alone.” Patterson v.

Illinois, 487 U.S. 285, 291 (1988). If the suspect

*‘*knowingly and intelligently’ pursues the latter

course,” there is “no reason why the uncounseled

statements he then makes must be excluded at his

trial.” /bid.

2. Because the prophylactic rules of Miranda and

Edwards “sweep{] more broadly than the Fifth

Amendment itself,” Oregon v. Elstad, 470 U.S. 298,

306-307 (1985), and thus inevitably result in the

suppression of some voluntary confess#ons, this Ceurt

has carefully weighed the benefits of expanding such

rules against the costs of restricting police investi-

gations and excluding voluntary confessions from

24

evidence. See, e.g., New York v. Quarles, 467 U.S.

649, 657 (1984); Michigan v. Tucker, 417 U.S. 433,

450-451 (1974). The Court has recognized that “ ‘the

need for police questioning as a tool for effective en-

forcement of criminal laws’ cannot be doubted. * * *

Admissions of guilt are more than merely ‘desirable’

* * * » they are essential to society’s compelling in-

terest in finding, convicting, and punishing those who

violate the law.”’ Moran vy. Burbine, 475 U.S. 412,

426 (1986); see also McNeil vy. Wisconsin, 111 S. Ct.

at 2210 (‘the ready ability to obtain uncoerced con-

fessions is not an evil but an unmitigated good’’);

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

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

loth v. Bustamonte, 412 U.S. 218, 225 (1973). Con-

fessions, if obtained by fair methods that guarantee

their reliability, result in the resolution of many

cases that could not otherwise be solved, ensure con-

fidence in the accuracy of criminal judgments, reduce

the risk of prosecuting or convicting innocent per-

sons, and alleviate burdens on al] segments of the

criminal justice system. Any rule that excludes vol-

untary, reliable confessions from evidence therefore

imposes substantial costs and carries a heavy burden

of justification.

The rule adopted by the court of appeals imposes

a perpetual ban on police-initiated custodial interro-

gation after a suspect’s invocation of the Edwards

right to counsel. That rule would seriously impede

effective law enforcement by requiring exclusion of

voluntary, reliable confessions made after otherwise

valid waivers of Miranda rights. Moreover, because

many offenders commit multiple crimes, and it is

common for a person under suspicion in connection

with one offense to have invoked the right to counsel]

at some previous point in a separate case, a rule that

é

25

permanently forecloses all police-initiated interroga-

tion of such persons while they remain in custody

would impose a particularly high cost in restricting

law enforcement efforts.

Any benefit that might be obtained by applying

the prophylactic rule of Edivards in this context does

not outweigh the costs associated with the restriction

of police investigations and the suppression of proba-

tive, voluntary confessions. A request by the police

to interrogate a suspect on a new subject more than

five months after the suspect’s invocation of his

right to counsel, and after the suspect has entered a

guilty plea on the charges that prompted the request

for counsel, poses very little danger that the suspect

will be badgered into making a statement when he

would otherwise remain silent. Moreover, the police

are in any event required to provide suspects with

Miranda warnings prior to any interrogation, and

compliance with that requirement will ensure that

suspects do not give statements to the police unless

they freely choose to do so. In these circumstances,

applying the Edwards rule would not afford any sig-

nificant protection to the suspect’s constitutional

rights. In light of the high cost of restricting police

investigations and excluding voluntary confessions,

the prophylactic rule of Edwards should not be ex-

tended to cases like this one, in which the concerns

underlying that rule are not implicated. Cf. Berke-

mer vy. McCarty, 468 U.S. 420, 437 (1984) (“Fidelity

to the doctrine announced in Miranda requires that

it be enforced strictly, but only in those types of sit-

uations in which the concerns that powered the deci-

sion are implicated,” ).

26

CONCLUSION

The judgment of the court of appeals should be

reversed,

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

NINA GOODMAN

Roy McLEESE

Attorneys

JULY 1992

YG & GOVERNMENT PRINTING OFPice, 1992 912324 ss4