Amicus Curiae Brief — Dickerson v. United States

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FILED «

M ms y og ~/ |

MAR ~ 9 2000

No. 99-5525 «=

IN THE =

Supreme Court of the Rnited States

CHARLES THOMAS DICKERSON,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF FEDERAL BUREAU OF INVESTIGATION

AGENTS ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

Of Counsel ROBERT F. HOYT

LYLE ROBERTS Counsel of Record

1806 W. Abingdon Dr. KARAN BHATIA

Apt. 202 HESTER PEIRCE

Alexandria, VA 22314 CHRISTOPHER SIMKINS

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

March 9, 2000 Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..0000.0..0.0. 0c coooocoooocccocccccceeeeee iii

NT NL STII SEE RRS Ee ee 2

STATEMENT OF THE CASE ....00.0ooo o.oo oc eccccecccccecccceeeee 3

SUMMARY OF ARGUMENT 00000... oo occ cecccceeeceeeee ®

EEE NES SRR EE Oy oa 7 tat re Phe eS 11

I. THE CORE PROCEDURAL SAFEGUARDS

UNDER MIRANDA WILL CONTINUE TO BE

FOLLOWED UNDER SECTION 3501 .........00000........ 11

A. Section 3501 Creates Strong Incentives for

Federal Law Enforcement To Continue To

Follow Miranda’ s Core Procedural

RETESET EI SERRE eee aoe See 12

B. The FBI and Other Federal Law Enforcement

Agencies Will Continue To Insist that Their

Officers Follow Miranda’s Core Procedural

BREESE SAME AEE EIU Ole 14

Il. APPLICATION OF SECTION 3501 WOULD

EXPLICITLY ENCOURAGE FEDERAL LAW

ENFORCEMENT OFFICERS TO FOCUS

THEIR EFFORTS ON ENSURING THAT

CUSTODIAL INTERROGATIONS ARE

VOLUNTARY, AS REQUIRED BY THE FIFTH

AMENDMENT

TABLE OF CONTENTS — Continued

Page

III. SECTION 3501 REMEDIES THE EXCESSES

OF MIRANDA’S EXCLUSIONARY RULE ............... 21

A. Miranda’s Exclusionary Rule Has Resulted in

the Suppression of Voluntary Confessions ............ 22

B. Section 3501 Will Prevent Voluntary

Confessions from Being Suppressed ..................... 28

OE IN ee TA 30

TABLE OF AUTHORITIES

CASES Page

Arizona v. Roberson,

ST 15, 25, 26

Beckwith v. United States,

SS 13

Edwards v. Arizona,

corner 15, 25

Illinois v. Krull,

a ccnesenovonee 28

Michigan v. Mosley,

EE SEES 27

Michigan v. Tucker,

i ciseeets 23, 28, 29

Miller v. Fenton,

474 U.S. 104 (1985) ....0..... ce. RN ee 20

Minnick v. Mississippi,

a 15, 25

Miranda v. Arizona,

EE passim

New Jersey v. Portash,

EEE 20

New York v. Quarles,

467 U.S. 649 (1984) ooo cccccccccccecceceseevesveeeve 20, 23

Oregon v. Elstad,

I es 20, 23, 29

Reese v. Delo,

SEONG, BOUIID cccoccccccccccceseccccsesosceees 13

Roman v. Florida,

I, I i cccsccsewensssceevece 13

Schneckloth v. Bustamonte,

Nee nn 20

TABLE OF AUTHORITIES — Continued

Page

United States v. Arrington,

No. 97CR192, 1997 WL 754051 (N_D. Ill.

Nov. 21, 1997), aff'd, 159 F.3d 1069 (7th

Cir. 1998), cert. denied, 119 S. Ct. 1512

RE _ P EET 28s Wes See ~PTEe 21

United States v. Berkovich,

932 F. Supp. 582 (S.D.N.Y. 1996) .000000 21

United States v. Bierey,

588 F. 2d 620 (8th Cir. 1978) 20000. 29

United States v. Brown,

531 F. Supp. 37 (D. Mont. 1981) .2000. 20

United States v. Rodriguez-Cabrera,

35 F. Supp. 2d 181 (D. Puerto Rico 1999) ............. 24

United States v. Dale,

44 F. Supp. 2d 818 (E.D. Tex. 1999)... 21

United States v. Davis,

$12 U.S. 452 (1994) o.oo ceccccccccceesecseeeveseesee 9, 23, 25

United States v. DeSumma,

44 F. Supp. 2d 700 (E.D. Pa. 1999) 0. 24

United States v. Dickerson,

166 F.3d 667 (4th Cir.), cert. granted in

part, 120 S. Ct. $78 (1999) oe. passim

United States v. Elie,

111 F.3d 1135 (4th Cir. 1997) ooo. 3, 24

United States v. Green,

592 A.2d 985 (D.C. 1991), cert. granted,

504 U.S. 908 (1992), cert. dismissed as

GE, Fe ee I crcisiintattatititmcininanabageiiis. 26

United States v. Wyatt,

No. 97-40083-01-RDR, 1998 WL 45004

3 FS EER TRS oe 21

Villafuerte v. Stewart,

111 F.3d 616 (9th Cir. 1997) 0. 13

TABLE OF AUTHORITIES — Continued

Page

Withrow v. Williams,

LE TET E IIIT TELE 17, 23

CONSTITUTIONAL PROVISIONS

TET IAP IE nT 11

ee EO srncrncntesirctasineadisnnscntnnnitsagminclie passim

8 8 eae eee 11, 23, 29

STATUTES

EAE GS a RR er anaes 2 3, 8, 30

a icici ccssctesanibilibinthdeapinisiansnpintancienedaiiiin 28

SE ies I ihe heen sniilincthicnichteanaibhansiniisioadinite 13, 25

BOOKS, ARTICLES & TREATISES

Wayne R. LaFave & Jerold H. Israel,

Criminal Procedure (2d ed. 1992) ............ 13, 25, 28

William G. Otis, Op-Ed, Miranda: Morals

and Marbles, Wash. Post, Nov. 24, 1999,

EES EEE EI SRL Tek ae a 2

OTHER AUTHORITIES

Legal HandBook for Special Agents (Mar. 7,

I Rea PRS BEA SET eR 16, 22

Memorandum from Robert C. Gleason,

Deputy Chief Counsel for the Drug

Enforcement Agency, to Patty Stemler,

ten of the Appellate Section, Criminal

Division, Department of Justice (1998)

(filed with the Court by the Government

gf __) FERRERS Enon NeCCEED Ieee 17, 24

TABLE OF AUTHORITIES — Continued

Page

Memorandum from Larry R. Parkinson,

General Counsel for the FBI, to Eleanor

D. Acheson, Assistant Attorney General

(Oct. 19, 1999) (filed with the Court by

the Government on February 24, 2000) .......... passim

Voluntary Confessions and the Enforcement

of Section 3501, Title 18, U.S. Code:

Hearings Before the Subcommittee on

Criminal Justice Oversight of the Senate

Committee on the Judiciary, 1999 WL

16947867 (May 13, 1999) (testimony of

Gilbert G. Gallegos, President Grand

Lodge, Fraternal Order of Police)

ar Se eg tgs).

IN THE

Supreme Court of the Rnited States

No. 99-5525

CHARLES THOMAS DICKERSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF FEDERAL BUREAU OF INVESTIGATION

AGENTS ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

The Federal Bureau of Investigation Agents Association

(“FBIAA”) submits this amicus curiae brief in support of the

decision of the United States Court of Appeals for the Fourth

Circuit and in opposition to both petitioner, Charles Thomas

Dickerson, and respondent, United States of America. By

letters filed with the Clerk of the Court, petitioner and

respondent have consented to the filing of this brief.'

' This brief was prepared in whole by the counsel listed on the cover.

No person or entity, other than the amicus curiae, its members, and its

counsel, made a monetary contribution to the preparation or submission

of this brief. :

INTEREST OF AMICUS

The FBIAA consists of 9800 current and former Federal

Bureau of Investigation (“FBI”) agents and includes

approximately 75 percent of current FBI agents. Its mission

is to ensure that agents employed by the FBI are treated

fairly and to assist them in carrying out their law

enforcement duties in an effective manner and consistent

with the highest standards of professional conduct. The

organization was founded in the aftermath of a highly

politicized investigation in the late 1970s by the United

States Attorney General in which individual FBI agents who

had followed directives issued by FBI Headquarters were

unjustly targeted for investigation and prosecution. The

agents formed the FBIAA to represent their interests in

matters in which the Government refused for political or

other reasons to-advocate on behalf of the agents. This is

one such matter.’

The FBIAA has two specific interests in being heard in

this case. First, the FBIAA believes it is important to clarify

the factual record with respect to the manner in which

Special Agent Christopher Lawlor (“Agent Lawlor’) handled

the investigation of the bank robbery underlying this case.

Petitioner has attempted to characterize Agent Lawlor’s

behavior as inappropriate, Petitioner’s Brief at 4-6, and the

Government has abandoned any efforts to highlight the

voluntariness of the statements made by Charles Dickerson.

The FBIAA’s second interest in filing this brief is to

challenge assertions made by the Government and former

Attorney General Griffin Bell, ef ai/., in their briefs before the

The FBIAA is not alone in feeling betrayed by the Government’s

refusal to stand behind section 3501. The chief attorney in the appellate

section at the United States Attorney’s Office resigned over this matter.

See William G. Otis, Op-Ed, Miranda: Morals and Marbles, Wash.

Post, Nov. 24, 1999, at A23.

Court. Both briefs suggest that the law enforcement

community uniformly approves of the current Miranda rules

and sees no need to apply 18 U.S.C. § 3501 in federal

criminal cases. In fact, the FBIAA and its members strongly

disagree with this position. FBI agents support the

application of section 3501 because the statute, while

creating strong incentives to provide Miranda warnings,

supports the efforts of law enforcement by emphasizing the

constitutional rights the warnings are designed to safeguard,

rather than the warnings themselves.

STATEMENT OF THE CASE

The facts of this case offer a perfect example of why

section 3501 should be upheld. While in custody, Dickerson

made a confession. The District Court found it had been

made voluntarily.‘ The court suppressed the confession,

however, because it believed the law enforcement agents had

failed to give Dickerson timely Miranda warnings.

> The FBIAA is not alone in its support of the Fourth Circuit’s

decision upholding section 3501. The International Association of

Chiefs of Police, the National Association of Police Organizations, the

Fraternal Order of Police, and the National District Attorneys

Association, and numerous other state prosecuting associations have

likewise filed briefs supporting the Fourth Circuit’s decision. These

organizations collectively represent thousands of law enforcement

personnel, in contrast to the relatively small number of individuals who

have joined the Bell Brief.

* The District Court’s acknowledgment of the voluntariness of

Dickerson’s confession was implicit in the District Court’s reliance on

United States v. Elie, 111 F.3d 1135 (4th Cir. 1997), to reject his

argument that his accomplice’s testimony was tainted by an alleged

violation of his constitutional rights. J.A. 158 n.1. See United States v.

Dickerson, 166 F.3d 667, 676 (4th Cir) (noting that “[bjecause

Dickerson’s statement was voluntary under the Fifth Amendment, the

district court concluded that the evidence found as a result thereof was

admissible at trial”), cert. granted in part, 120 S. Ct. 578 (1999).

In fact, as the Government itself urged in a petition for

reconsideration to the District Court and as the following

summary of facts explains, there is strong reason to believe

that no departure from Miranda procedures occurred at all.

Dickerson himself indicated in a handwritten note that he

had timely received his warnings. The Government’s failure

to introduce this and other probative evidence in the

suppression hearing resulted in a conclusion by the District

Court that a technical violation of Miranda had occurred and,

accordingly, that it was compelled to suppress Dickerson’s

voluntary confession. It is precisely situations such as this

that section 3501 is designed to remedy.

In the late afternoon of January 27, 1997, Agent Lawlor

and ten other federal and local law enforcement officers

arrived in the Maryland neighborhood where Charles

Thomas Dickerson lived. J.A. 141. Witnesses had observed

a car registered to Dickerson near the scene of the robbery of

a bank in Alexandria, Virginia three days earlier. /d. After

locating the car and looking around the neighborhood,

several of the officers approached Dickerson’s door. /d.

The agents knocked and identified themselves. /d.

Dickerson, through the closed door, told the agents to wait.

J.A. 39. A few minutes later, Dickerson opened the door and

the agents entered.’ Jd. The agents told Dickerson he was

not under arrest, but asked him to accompany them

voluntarily to the FBI field office to discuss the bank

robbery. J.A. 101-02 (Affidavit of Thomas O. Durkin § 5).

Dickerson agreed and, followed by Agent Lawlor and one or

two other agents, went to the bedroom to get his coat. J.A.

141. Underneath the coat was over $500, which Dickerson

claimed he had won gambling in Atlantic City. Jd The

Dickerson subsequently told Agent Lawlor that while the agents

waited outside, he hid the gun he had in hand when the agents knocked

on the door. J.A. 63-64. In his testimony before the District Court,

Dickerson denied having said this. J.A. 64.

agents asked Dickerson whether they could search his

apartment. J.A. 142. Dickerson declined. Jd Dickerson

nevertheless rode with Special Agents Lawlor and Armin

Showalter to the FBI field office. J.A. 102 (Durkin Aff. ¥ 7).

Detective Thomas O. Durkin, a twenty-year veteran of the

Alexandria Police Department, followed in a separate car.

Id. Four FBI agents remained in the vicinity of Dickerson’s

apartment. J.A. 108 (Affidavit of Lawrence Kevin Wenko ]

6).

Once at the office, Agent Lawlor and Detective Durkin

took Dickerson to an interview room, but reminded him that

he was free to go and, should he choose to leave, would be

given a ride home. J.A. 102 (Durkin Aff. ¥ 8). Dickerson

told Agent Lawlor and Detective Durkin that he had been

near the bank on the morning of January 24, 1997, but

denied involvement in or knowledge of the robbery. J.A.

142.

Agent Lawlor, armed with the knowledge that Dickerson

had been in the vicinity of the bank at the time of the

robbery, called Magistrate Judge James E. Kenkel to get a

warrant to search Dickerson’s apartment. J.A. 142. Agent

Lawlor explained that a telephonic warrant was necessary

because Dickerson was free to leave at any time and Agent

Lawlor was worried that, should Dickerson leave, critical

evidence would be destroyed. /d. The magistrate judge

determined that there was probable cause to search

Dickerson’s apartment and issued a warrant for that purpose

at 8:50 p.m. J.A. 142-43. Between 9:00 and 9:15 p.m.,

Agent Lawlor contacted Special Agent Lawrence Kevin

Wenko, who had remained in the vicinity of Dickerson’s

apartment. J.A. 108 (Wenko Aff. 9 7). The search by

Wenko and the other agents proved fruitful: among other

items, they found a loaded semi-automatic .45 caliber

handgun allegedly used in the robbery, dye-stained money

and a bait bill, which was traced to another bank robbery.®

J.A. 144.

After notifying the agents that had remained in

Dickerson’s neighborhood of the search warrant, Agent

Lawlor returned to the interview room to tell Dickerson that

his apartment would be searched. J.A. 143. The District

Court found that, upon hearing about the search, Dickerson

decided to make a statement. /d. According to the District

Court’s findings, a half hour long interview followed. J.A.

155. The District Court found that Dickerson did not receive

his Miranda warnings until the interview was over. Jd.

The evidence introduced by the Government after the

District Court had made its finding with respect to the

Miranda procedures supports the contrary sequence of

events described below.’ After Agent Lawlor informed

Dickerson that his apartment was being searched, Dickerson

decided he wanted to give a statement. J.A. 143. Agent

Lawlor left Dickerson and Detective Durkin alone. J.A. 102

(Durkin Aff. 7 10). When he returned, Dickerson was read

his Miranda rights, id., and at 9:40 p.m. Dickerson signed a

waiver of those rights. J.A. 21. Dickerson did not alter his

earlier story. J.A. 102 (Durkin Aff. J 10). Agent Lawlor left

the room again in response to a page. Jd. During Agent

Lawlor’s absence, Detective Durkin asked Dickerson to

write down what he had done during the day. J.A. 103

Aside from linking him to bank robberies, the evidence discovered

in Dickerson’s apartment tied him to an armed car-jacking, during which

a gun later used to murder an off-duty correctional officer was taken.

J.A. 86. Additional items further implicating Dickerson in this or other

bank robberies later were seized from the trunk of Dickerson’s car. J.A.

144-45.

” This evidence included the 2% ,avits of Detective Durkin (J.A. 101-

04) and Agent Wenko (J.A. 107-.2) and Dickerson’s handwritten note

described below (J.A. 105).

ae Le aed

(Durkin Aff. 9 11). Dickerson composed the following note

(J.A. 105):

I was read my rights at 7:30*° But I was here at 5:30. I

talked to the two Detectives[,] Detective Thomas

Durkin and Agent Lawlor [for] two and a half hours

and then was asked to take a polygraph test[.] I

declined because after two hours I had knowledge of

the bank robbery. I told them I know nothing of the

bank robbery that happened Friday. Be for[e] today I

didn’t have any knowledge of the bank robbery.

Upon returning to the room, Agent Lawlor told

Dickerson that a bait bill from another bank robbery had

been found in his apartment. J.A. 103 (Durkin Aff. 4 12).

Dickerson then confessed that he had been near the bank in

Alexandria, Virginia on January 24, 1997, with “Jimmy”

(later identified as James Rochester), someone he knew to be

a bank robber.’ J.A. 103 (Durkin Aff. ¥ 12).

Unfortunately, the District Court declined to consider the

newly introduced evidence suggesting that Dickerson timely

received his Miranda warnings; it found that the delay in

introducing the evidence was attributable to the

Government’s lack of preparation for the initial suppression

hearing."° J.A. 159-60. The District Court’s determination

§ As Detective Durkin explained, Dickerson did not correctly estimate

the time at which he wrote the note. J.A. 103 (Durkin Aff. § 11). The

Fourth Circuit acknowledged that the handwritten statement, regardless

of its timing problems, “corroborates the agents’ position that Dickerson

was read his Miranda warnings prior to his confession.” Dickerson, 166

F.3d at 677 n.8.

® Dickerson had assisted Rochester in washing the dye off bills

obtained in earlier robberies. J.A. 103 (Durkin Aff. § 12).

'0 At the hearing on the motions for reconsideration, the District Court

observed that “I suspect it’s one of these deals where they threw the file

at [the Assistant United States Attorney] at 4 o’clock on the day before.”

J.A. 129.

that Dickerson did not receive the Miranda warnings in a

timely fashion, however, does not detract from the

undisputed evidence that Dickerson spoke with Agent

Lawlor and Detective Durkin voluntarily.

We recount these facts, not to raise in this Court our

dispute with the District Court findings, but to emphasize

precisely why this case demonstrates the wisdom and the

need for section 3501. No one disputes that Dickerson’s

confession was voluntary, and not the result of any coercion.

The only issue in dispute was the technical issue of whether

he was read his Miranda warnings before or after the

confession. Under Miranda, the District Court ended its

inquiry and suppressed Dickerson’s confession once the

Court determined, apparently on an incomplete record, that

the warnings were given after the confession. Under section

3501, the Court’s decision on suppression would not have

been held hostage to that technical point, but instead would

have been based on the broader constitutional principle of

whether or not the confession was voluntary.

SUMMARY OF ARGUMENT

On behalf of its constituent members, who include

approximately 75 percent of all active FBI agents, the

FBIAA offers this brief in support of the Fourth Circuit’s

decision upholding 18 U.S.C. § 3501 as the standard

governing the admission into evidence of voluntary

confessions in federal criminal cases."’

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

established a set of procedures that must be followed when a

suspect is in police custody before the police may elicit a

confession: The police must give certain warnings and ask

'! See Dickerson, 166 F.3d at 684-92.

whether the suspect agrees to waive his rights. If the suspect

refuses to waive his rights (i.e., declines to give his

permission to be questioned), the police may not question the

suspect. An accompanying exclusionary rule requires the

suppression of the suspect’s confession if the police deviate

from these procedures, without regard to the actual

voluntariness of the confession.

Subsequent decisions by the Court, however, have

stressed that the Miranda procedures are not themselves

constitutional rights, but rather are “recommended

‘procedural safeguards’”’* that help protect an underlying

constitutional right — i.e., the Fifth Amendment right against

self-incrimination. Because the safeguards are not

constitutionally required, they can be superseded or altered

by Congress. Congress did just that in enacting section

3501, which directs courts to admit into evidence

confessions that are “voluntary,” as determined by weighing

“all the circumstances surrounding the giving of the

confession,” including the giving of Miranda warnings and

the presence of counsel during questioning. The Fourth

Circuit held that section 3501 is a constitutional exercise of

Congress’s power and that this statute establishes the

standard for the admission of confessions in federal criminal

cases. For the reasons stated in the brief filed by Professor

Paul Cassell, the FBIAA believes that the Fourth Circuit’s

decision is correct.

Aside from the question of section 3501’s validity, the

FBIAA supports section 3501 as a matter of policy because

it remedies the overinclusive application of Miranda’s

exclusionary rule, yet still provides protections for

individuals’ constitutional rights without materially

'2 United States v. Davis, 512 U.S. 452, 457-58 (1994); see also

Miranda, 384 U.S. at 444 (requiring the “use of procedural safeguards

effective to secure the privilege against self-incrimination”) (emphasis

added).

complicating the procedures law enforcement must follow in

eliciting confessions. In expressing its support for section

3501, the FBIAA makes three points. First, by affirming the

Fourth Circuit’s decision and upholding section 3501, the

Court will not do away with adherence to Miranda’s core

procedural safeguards.'* To the contrary, section 3501

creates a powerful incentive for law enforcement officers to

follow these procedures by making them factors in

determining the voluntariness of a confession. This

incentive is bolstered by non-statutory incentives. For

example, regardless of the status of section 3501, the FBI —

with the support of its agents — is committed to maintaining

these safeguards. This commitment stems not only from a

recognition of the legal benefits of the safeguards as

evidence of voluntariness, but also from its respect for

constitutional rights and public expectations.

Second, the FBIAA challenges the assertion of

Dickerson, the Government, and supporting amici that

upholding section 3501 would blur the “bright line” that

courts have used in assessing the admissibility of a

confession, thereby complicating the job of law enforcement

officers. This argument ignores the fact that even when

In the brief filed by former U.S. Attorney General Griffin Bell, ef ai.,

amici imply as a basis for their arguments that if section 3501 is the

governing standard, Miranda’s procedural safeguards, including the

giving of warnings, will no longer be followed. See Bell Brief at 17-18

(some law enforcement agencies “may” choose to voluntarily continue to

give Miranda warnings, but some “may short-sightedly dispense with

warnings and adopt more aggressive interrogation techniques”). In

making these assertions, amici claim to be speaking for the vast majority

of law enforcement. See id. at 1, 7-8. However, as noted above, the

FBIAA, as the representative of 75 percent of all active FBI agents, is

better positioned to speak for the federal agents who actually deal with

Miranda and its aftermath on a day-to-day basis. The FBIAA asserts, for

the reasons discussed in this brief, that Miranda’s safeguards will

continue to be followed, regardless of whether the Court affirms the

Fourth Circuit’s decision.

Miranda’s safeguards are followed, a confession still cannot

be admitted as evidence urtil a trial judge determines that the

confession is voluntary under the Fifth Amendment. In

determining the voluntariness of the contession, a trial judge

applies the same “totality of the circumstances” analysis

required by section 3501. Since the “voluntariness” of a

confession is already a prerequisite to its admission, a fact of

which law enforcement officers are keenly aware, section

3501’s voluntariness standard will not place any additional

burdens on law enforcement.

Finally, the FBIAA supports the application of section

3501 because it counteracts the overinclusiveness of

Miranda’s exclusionary rule, which calls for voluntary

confessions to be suppressed whenever there is a technical

violation of Miranda’s procedural safeguards. By basing the

test for the admission of a confession on whether there has

actually been a violation of the Fifth Amendment, section

3501 makes for better law enforcement policy by lessening

the harsh and unfair consequences that result in the rare

instance a law enforcement agent inadvertently fails to

follow Miranda’s safeguards. It also brings the exclusionary

rule applied to confessions into harmony with the

exclusionary rule applied in other criminal procedure

contexts arising under the Fourth, Fifth, and Sixth

Amendments.

ARGUMENT

I. THE CORE PROCEDURAL SAFEGUARDS

UNDER MIRANDA WILL CONTINUE TO BE

FOLLOWED UNDER SECTION 3501.

The briefs filed by Dickerson and supporting amici, assume

that if the Fourth Circuit decision is affirmed and section

3501 upheld, federal law enforcement will stop following

Miranda’s core procedural safeguards.'* This assumption is

wrong. For a variety of reasons, law enforcement will

continue to adhere to core Miranda safeguards.

A. Section 3501 Creates Strong Incentives for

Federal Law Enforcement To Continue To Follow

Miranda’s Core Procedural Safeguards.

Section 3501 directs courts to admit into evidence

confessions that are “voluntarily given” and states that

whether a particular confession is voluntary should be

determined by weighing “all the circumstances surrounding

the giving of the confession.” In determining voluntariness,

the trial judge “shall” examine a number of factors,

including:

(3) whether or not such defendant was advised or

knew that he was not required to make any statement

and that any such statement could be used against

him[;] (4) whether or not such defendant had been

advised prior to questioning of his right to the

assistance of counsel; and (5) whether or not such

defendant was without the assistance of counsel when

questioned and when giving such confession.

18 U.S.C. § 3501(b)(3)-(5). These factors encapsulate the

substance of Miranda’s core procedural safeguards.

By explicitly including Miranda’s procedural safeguards

as factors in the voluntariness analysis, section 3501 reflects

the holding of numerous cases that, under the Fifth

'* See Petitioner’s Brief at 14 (“While the Court invited alternative

procedures [for providing warnings], it did not invite procedures that

dispensed with apprising persons in custody at the outset of their rights

and assuring that their exercise of those rights would be honored.”); Bell

Brief at 17-19.

Amendment, the giving of warnings is significant proof that

the confession was voluntary.’ Law enforcement officers,

understanding the relative weight given to warnings and the

presence of counsel under section 3501, will continue to

view the core Miranda procedural safeguards as the best way

to ensure thet any subsequent conftesion is found to be

voluntary."° Section 3501 creates a “win-win” situation:

federal law enforcement officers will continue to give the

Miranda warnings, but in cases involving a technical

departure from the Miranda safeguards, the constitutional

requirement of voluntariness will be the basis for

determining the admittance of any confession into evidence.

'S See, e.g., Beckwith v. United States, 425 U.S. 341, 348 (1976)

(“Proof that some kind of warnings were given or that none were given

would be relevant evidence . . . on the issue of whether the questioning

was in fact coercive.”); Villafuerte v. Stewart, 111 F.3d 616, 626 (9th Cir.

1997) (“In analyzing whether statements were voluntary, we must

consider the totality of the circumstances. .. . We conclude [the criminal

defendant] was fully apprised of his Miranda rights and voluntarily

waived them.”); Reese v. Delo, 94 F.3d 1177, 1184 (8th Cir. 1996)

(under a “totality of the circumstances” review, “[t}he fact that [Miranda]

warnings were given weighs in favor of a voluntariness finding”); Roman

v. Florida, 475 So. 2d 1228, 1232 (Fla. 1985) (“Proof that Miranda

warnings were given is relevant in determining whether there was

coercion. Proof even of partial warnings of constitutional rights is a

circumstance relevant to a finding of voluntariness.”), see also Wayne R.

LaFave & Jerold H. Israel, Criminal Procedure § 6.2(c), at 298 (2d ed.

1992) (“[T}he fact the warnings were given is an important factor tending

in the direction of a voluntariness finding.”).

'© See Brief of United States at 33 (where a criminal suspect challenges

the admissibility of a confession despite being given Mirand

“compliance with Miranda helps ensure that statements will be found

admissible because they were voluntary”).

B. The FBI and Other Federal Law Enforcement

Agencies Will Continue To Insist that Their Officers

Follow Miranda’s Core Procedural Safeguards.

The FBI, with the support of its agents, and other federal

law enforcement agencies will continue to insist that the core

Miranda procedural safeguards are followed. As stated by

the General Counsel of the FBI in an October 19, 1999,

memorandum submitted to the Department of Justice:

“Whether or not the Miranda requirements remain in effect

after Dickerson, the FBI will continue to warn subjects of

their rights to silence and counsel, and obtain waivers of

those rights, prior to custodial interrogation.”'’ Apart from

the legal incentive created by section 3501, see supra Part

1A, there are three significant reasons why the FBI and other

federal law enforcement agencies will maintain their current

procedures if the Court upholds section 3501. First, the FBI

procedure of giving warnings to suspects pre-dates the

Miranda decision and is ingrained in the FBI’s internal

policies. Like other federal law enforcement agencies, the

FBI will continue to train its agents to follow Miranda’s

procedural safeguards. Second, federal prosecutors will

expend their limited resources more readily on cases in

which indicia of voluntariness, including the core Miranda

safeguards, are present. Finally, public expectations will

encourage continued use of Miranda’s core procedural

safeguards.

The FBI has a long history, predating the Miranda

decision, of giving warnings to suspects in order to protect

their constitutional rights. As the Court explained in

Miranda, J. Edgar Hoover, Director of the FBI, had

instituted warnings to suspects as early as 1952, although

'? See Memorandum from Larry R. Parkinson, General Counsel for the

FBI, to Eleanor D. Acheson, Assistant Attorney General at 1 (Oct. 19,

1999) (filed with the Court by the Government on February 24, 2000)

[hereinafter FBI Memorandum].

without an accompanying exclusionary rule."* The FBI

stressed that ““Special Agents are taught that any suspect or

arrested person, at the outset of an interview,’” must be

informed of his right to remain silent and to have “‘the

services of an attorney of his own choice.” Miranda, 384

U.S. at 483 n.54. The purpose behind these warnings was to

““maintain inviolate the historic liberties of the individual”

and to enforce the law without “‘destroy[ing] the dignity of

the individual.’” Jd. (quoting Hoover).

Likewise, today each FBI agent is trained to respect

individual rights while seeking confessions. The FBI’s

current training materials state:

The most important limitations on the admissibility

of an accused’s incriminating statements are the

requirements that they be voluntary; that they be

obtained without violating his right to remain silent;

and that they be obtained without violating his right

to a lawyer.

Legal HandBook for Special Agents § 7-1 (Mar. 7, 1997).'°

Agents are specifically told that “[i]t is the policy of the FBI

While the Miranda decisions states that the FBI warnings under

Hoover were accompanied by a cutting off of questioning once a suspect

asked for a lawyer, see Miranda, 384 U.S. at 485-86 (quoting a letter sent

from the FBI to the Solicitor General in connection with the Miranda

case), members of the FBIAA who were working as agents prior to the

Miranda decision do not remember such a rule. Their recollection is that

the Miranda decision materially altered the landscape of law enforcement

with regard to questioning suspects. Moreover, even as explained in

Miranda, Hoover’s rule was not nearly as broad with respect to cutting

off of questioning as the subsequent expansions of this rule in Edwards v.

Arizona, 451 U.S. 477 (1981), Arizona v. Roberson, 486 U.S. 675, 682-

83 (1988), and Minnick v. Mississippi, 498 U.S. 146 (1990). See infra

Part IIIB.

'9 These materials make no reference to Miranda, but simply assert

that these procedures are part of the FBI’s internal policies.

=—

that no attempt be made to obtain a statement by force,

threats, or promises,” and that it is entirely up to the

individual suspect, “after being advised of his/her rights,”

whether to give a confession or invoke the right to silence.

Id. § 7-2.1(1). Agents are instructed that “an accused in

custody is entitled to be warned of his right to remain silent

and his right to an attorney” before any interrogation begins.

Id. § 7-3.1.”

The FBI’s policy dictating that agents give warnings is

derived not only from a respect for individual rights, but also

is meant to ensure that a court will find any subsequent

confession voluntary. The Legal HandBook specifically

instructs agents that the “[a]dvice of rights” is an important

element in making sure that confessions are “the result of

‘free and unconstrained choice,” and that the giving of

warnings will be used as a factor by courts in their “‘totality

of the circumstances” analysis. /d. § 7-2.3. Agents face

disciplinary sanctions for gross violations of these FBI

procedures. In short, these procedures are deeply ingrained

in the FBI’s culture and, as the FBI has stated, it has no

intention of changing them if section 3501 is upheld, nor

would the FBIAA urge any such change.”!

*° In the amicus brief filed by the ACLU, the argument is made that

Miranda warnings are still needed today because many law enforcement

manuals encourage police officers to use coercive tactics to gain

confessions. See ACLU Brief at 15-16. The FBIAA will leave it to

organizations representing state law enforcement agencies appearing as

amici to speak for themselves. The FBI and its agents eschew the use of

such tactics. The FBI has consistently maintained a policy of respecting

constitutional rights and, in fact, spends much effort in training agents on

conducting interrogations with the utmost professionalism within the

parameters the law has set.

2! See supra note 17 and accompanying text. The Court has noted law

enforcement’s general willingness to respect individuals’ constitutional

rights and to provide safeguards for doing so, such as the giving of

Although the above discussion is confined to the FBI’s

procedures, other federal law enforcement agencies will have

similar incentives to leave in place their procedures for

adhering to the Miranda safeguards.” Overall, therefore, the

Court’s decision in this case is unlikely to affect the methods

employed by federal law enforcement agencies to protect the

constitutional rights of suspects.

More generally, federal law enforcement agents are faced

with increasing pressure to bring “air tight” cases devoid of

technical difficulties to federal prosecutors. Under the

current Miranda regime, a federal prosecutor likely will not

pursue a case that relies on the defendant’s confession if

there is any chance that the defendant will be able to invoke

Miranda’s exclusionary rule.” While it is true that under

We must remember in this regard that Miranda came down

some 27 years ago. In that time, law enforcement has grown in

constitutional as well as technological sophistication, and there

is little reason to believe that the police today are unable, or

even generally unwilling, to satisfy Miranda’s requirements.

Withrow v. Williams, 507 U.S. 680, 695 (1993).

22 Other federal agencies, in addition to the FBI, have expressed a

commitment to continue following Miranda’s safeguards under section

3501. See Memorandum from Robert C. Gleason, Deputy Chief Counsel

for the Drug Enforcement Agency, to Patty Stemler, Chief of the

Appellate Section, Criminal Division, Department of Justice (1998) (filed

with the Court by the Government on February 24, 2000 ) (“Regardless

of any change in the rule by the Supreme Court, DEA will undoubtedly

counsel its Agents to continue to provide Miranda warnings to all

custodial subjects that they seek to question.”) [hereinafter 1998 DEA

Memorandum].

3 Former Attorney General Benjamin Civiletti acknowledges as much

in his amicus brief. He states that federal prosecutors have tremendous

incentives to take cases where Miranda warnings have been given

because this helps assure that a “critical aspect of the government’s proof

[i.e., a voluntary confession] is admissible.” Civiletti Brief at 5. While

Mr. Civiletti’s comments are aimed at the current regime under Miranda,

his point translates into the section 3501 context and suggests that there

section 3501 prosecutors will more readily accept cases in

which confessions were voluntary despite a_ technical

violation of the Miranda safeguards, given the need for proof

of voluntariness under section 3501, and the legal and

practical reality that the giving of warnings helps provide

this proof, federal prosecutors will continue to put pressure

on law eniorcement to follow Miranda’s procedural

safeguards.

Finally, federal law enforcement agencies will be

encouraged to follow Miranda’s core procedural safeguards

by the public’s expectation that suspects be treated fairly and

within the bounds of the law. Dickerson, the Government,

and supporting amici have identified the increase in public

confidence in law enforcement attributable to the provision

of Miranda warnings. The FBIAA agrees that the use of

Miranda warnings has enhanced the public’s perception of

the professionalism of law enforcement officers. There is no

reason to believe that the FBI or other federal law

enforcement agencies would compromise these gains by

refusing to give the warnings under a section 3501 regime.

Section 3501, with its totality of the circumstances approach,

enhances the need for federal law enforcement agencies to be

vigilant in fostering a favorable public perception of their

behavior towards suspects.

will continue to be such pressure on federal prosecutors, and hence

federal law enforcement, to give Miranda warnings.

24 In the brief filed by former Attorney General Bell, amici argue that if

Miranda’s safeguards are not mandatory, “the prosecutor’s evidentiary

interest in assuring that warnings have been provided will become

attenuated.” Bell Brief at 18. The truth is exactly the opposite. As

explained above, prosecutors will have tremendous incentives to continue

putting pressure on law enforcement agents to follow Miranda's

safeguards as the surest way to prove voluntariness under section 3501.

Il. APPLICATION OF SECTION 3501 WOULD

EXPLICITLY ENCOURAGE FEDERAL LAW

ENFORCEMENT OFFICERS TO FOCUS THEIR

EFFORTS ON ENSURING THAT CUSTODIAL

INTERROGATIONS ARE VOLUNTARY, AS

REQUIRED BY THE FIFTH AMENDMENT.

Dickerson, the Government, and supporting amici argue

that Miranda provides federal law enforcement officers with

“bright line” rules to assist them in questioning suspects.”

They contend further that officers would be plagued by

uncertainty when they questioned a subject if section 3501

controlled the admissibility of confessions, because the

officers would not be able to predict what factors a court

might consider in examining the totality of the circumstances

surrounding the confession.”* This argument ignores the fact

that even under Miranda, a federal law enforcement officer

must be prepared for a totality of the circumstances analysis.

Although the Miranda procedural safeguards serve as a

useful guide for law enforcement, it is a fallacy to suggest

that law enforcement officers, simply by following Miranda,

can ensure that suspects’ confessions will be admitted into

evidence.”” The voluntariness standard established by the

Fifth Amendment remains the fundamental criterion for

admission.

Before any self-incriminating statement can be admitted

in federal court, a trial judge must determine both (1)

Miranda compliance (including whether there was a waiver)

and (2) the voluntariness of the statement for due process

*> See Petitioner’s Brief at 43; Brief of United States at 50: Bell Brief

at 12.

Leadership at 7.

2? See Bell Brief at 12, 19.

purposes.” At the behest of the defendant, a court will make

both determinations. If an officer complied with Miranda,

the court must consider a defendant’s remaining

voluntariness arguments. See New York v. Quarles, 467 U.S.

649, 672 & n.5 (1984). On the other hand, if the officer

violated Miranda, the court still must determine the

voluntariness of the statement, because voluntariness

governs the use of the statement for impeachment purposes,

see New Jersey v. Portash, 440 U.S. 450, 458-59 (1979), and

affects the “fruits of the poisonous tree” analysis, see Oregon

v. Elstad, 470 U.S. 298, 306-09 (1985). In this case, for

example, the District Court found a violation of Miranda and

thus excluded the confession from the government’s case-in-

chief, J.A. 155, but still went on to determine that

Dickerson’s confession was voluntary and thus did not

require suppression of the evidence found as a result of the

confession, J.A. 158 n.1. A determination of voluntariness is

based on the totality of the circumstances surrounding the

confession, see Schneckloth v. Bustamonte, 412 U.S. 218,

226 (1973), the same analysis used in section 3501.

Because suppression hearings are routine events in cases

involving confessions, law enforcement officers must do

more than simply afford the suspect the proper procedural

safeguards. Under both Miranda and section 3501, an

officer must take into consideration the myriad factors a

court might evaluate in determining voluntariness based on

the totality of the circumstances.” Despite the parties’

8 See, e.g., Miller v. Fenton, 474 U.S. 104, 109-10 (1985) (despite

Miranda warnings being given, a court must still ask whether confession

was voluntary under the due process clause); United States v. Brown, 531

F. Supp. 37, 39 (D. Mont. 1981) (“even in the event the required

warnings are given, the prosecution is still required to show that a

confession was voluntary under the due process standards”).

29 These factors include all of the “pre-Miranda factors” identified by

the Bell Brief as bearing on the voluntariness inquiry. Bell Brief at 14

n.14. The Bell Brief appears to suggest that these factors are no longer

claims about the complications federal law enforcement

officers would face under section 3501, it is clear that the

burden on officers would not materially change. If anything,

section 3501 lessens the burden on federal law enforcement

officers by allowing them to focus their efforts on ensuring

that confessions are voluntary, rather than worrying about

whether a technical violation of a procedural safeguard will

result in the suppression of crucial evidence. Thus, section

3501 enhances protection for suspects’ constitutional rights

without undermining the bright line guidance offered by the

core Miranda safeguards.

Ifl.SECTION 3501 REMEDIES THE EXCESSES OF

MIRANDA’S EXCLUSIONARY RULE.

The FBIAA, following the lead of the FBI, supports the

continued use of Miranda’s core procedural safeguards in an

effort to protect individuals’ constitutional rights.”

relevant under the “bright-line rules” of Miranda. Id. at 12-19. This

argument is contravened by the fact that federal courts routinely consider

the factors identified by the Bell Brief as “pre-Miranda” in determining

whether to admit confessions into evidence, even when all of the

Miranda procedural safeguards have been followed. See, e.g., United

States v. Dale, 44 F. Supp. 2d 818, 820 (E.D. Tex. 1999) (finding oral

statements voluntary after consideration of alleged threats and alleged

denials of requested counsel by law enforcement agents); United States v.

Wyatt, No. 97-40083-01-RDR, 1998 WL 45004, at *3 (D. Kan. Jan. 13,

1998) (considering whetl.er defendant was under the influence of drugs

or alcohol when he made his statements after receiving Miranda

warnings), United States v. Arrington, No. 97CR192, 1997 WL 754051,

at *1-2 (ND. Ill. Nov. 21, £997) (rejecting defendant’s argument that

alleged threats against wife rendered his confession involuntary), aff'd,

159 F.3d 1069 (7th Cir. 1998), cert. denied, 119 S. Ct. 1512 (1999);

United States v. Berkovich, 932 F. Supp. 582, 587 (S.D.N.Y. 1996)

(finding statements voluntary based, among other things, on assessment

of defendant’s intelligence and the location of the interrogation).

*° The FBIAA fully supports the FBI’s policy positions outlined in the

FBI Memorandum discussed above. See supra note 17 and

However, the exclusionary rule established by Miranda, and

expanded in subsequent cases, is overinclusive because it

results in confessions being suppressed when there has been

no violation of a constitutional right. Confessions are often

thrown out because of “technicalities,”"' ie., failures to

follow the letter of Miranda’s safeguards. The effect has

been to limit unduly law enforcement’s ability to fight crime,

while allowing the release of confessed criminals back into

society.

Section 3501 makes for better law enforcement policy

because it would continue to exclude confessions when the

court finds a constitutional violation, but would not exclude

confessions that are found to have been given voluntarily

despite the existence of technical departures from Miranda’ s

core safeguards. This remedies some of the anomalous

results stemming from Miranda’s exclusionary rule and

parallels the applications of the exclusionary rule in other

criminal procedure contexts.

A. Miranda’s Exclusionary Rule Has Resulted in the

Suppression of Voluntary Confessions.

The Fifth Amendment right against self-incrimination

guarantees each individual “the right ‘to remain silent unless

he chooses to speak in the unfettered exercise of his own

will.’” Miranda, 384 U.S. at 460 (quoting Malloy v. Hogan,

378 U.S. 1, 8 (1964)). Protection of this Fifth Amendment

right was at the heart of the Court’s concerns in Miranda and

was the reason for creating a system of procedural

safeguards to assure that involuntary confessions are not

used in criminal trials. Miranda, 384 U.S. at 439 (“[W]e

accompanying text. The FBIAA also supports the policies outlined in the

FBI's Legal HandBook for Special Agents. See supra Part 1.B.

3! Dickerson, 166 F.3d at 692.

deal with . . . his privilege under the Fifth Amendment to the

Constitution not to be compelled to incriminate himself.”’).*

To give teeth to its protective scheme, Miranda

established an exclusionary rule that requires adherence to

Miranda’s procedural safeguards as a “prerequisite[] to the

admissibility of any statement made by a defendant.”

Miranda, 384 U.S. at 476. The Miranda exclusionary rule,

however, is broader than is needed to protect a suspect’s

Fifth Amendment rights — sweeping away any confession

that is given in violation of Miranda’s procedural safeguards

without regard for the voluntariness of the confession. The

result is that in some situations a confession is suppressed

without any finding by a district court that a constitutional

violation, in fact, has occurred.”

The overbreadth of this rule creates pitfalls for law

enforcement.* An agent who inadvertently departs from

*? While the procedural safeguards established by Miranda include a

warning that the criminal suspect has the right to speak to a lawyer, the

purpose of this warning is to protect the Fifth Amendment right against

self-incrimination, rather than the Sixth Amendment right to counsel.

See Miranda, 384 U.S. at 465-66 (a lawyer’s presence “would insure that

statements made in the government-established atmosphere are not the

product of compulsion”); see also United States v. Davis, 512 U.S. 452,

456 (1994) (“The Sixth Amendment right to counsel attaches only at the

initiation of adversary criminal proceedings . . . .”).

*° The Court has repeatedly held that a violation of Miranda’s

procedural safeguards does not necessarily mean that a resulting

confession is involuntary, and hence in violation of the Fifth

Amendment. See, e.g., Withrow v. Williams, 507 U.S. 680, 705-07

(1993) (O’Connor, J., concurring in part and dissenting in part); Oregon

v. Elstad, 470 U.S. 298, 306-10 (1985); New York v. Quarles, 467 U.S.

649, 672 & n5 (1984); Michigan v. Tucker, 417 U.S. 433, 444-46

(1974).

** In its brief, the Government acknowledges that there have been costs

to law enforcement from the exclusionary rule, but states in a conclusory

fashion that the exclusionary rule does not impede law enforcement

unduly. See Brief of United States at 31-32. The brief dismisses

Miranda’s procedural safeguards before a _ suspect

voluntarily confesses will see that confession suppressed at

trial, even if the agent did not violate the suspect’s

constitutional rights.** As detailed above, the facts of this

case are a pointed example of this pitfall. Although the

Government presented evidence that Dickerson was properly

given his Miranda warnings, the District Court found that

Miranda’ s technical requirements had not been followed and

suppressed Dickerson’s confession, despite the fact that it

was voluntary. See Dickerson, 166 F.3d at 675-77.

The exclusionary rule is especially harmful in the context

of questioning suspects after they have requested the

assistance of counsel.” In Miranda, the Court held that if a

suspect “states that he wants an attorney, the interrogation

must cease until an attorney is present” and the attorney must

be “present during any subsequent questioning.” Miranda,

research to the contrary and overlooks the experiences of law

enforcement officials who have spoken out against the exclusionary rule

and have criticized Miranda for “interfer[ing] with the ability of police

officers to solve violent crimes and take dangerous criminals off the

streets.” Voluntary Confessions and the Enforcement of Section 3501,

Title 18, U.S. Code: Hearings Before the Subcomm. on Criminal Justice

Oversight of the Senate Comm. on the Judiciary, 1999 WL 16947867

(May 13, 1999) (Testimony of Gilbert G. Gallegos, President Grand

Lodge, Fraternal Order of Police) (the exclusionary rule under Miranda

“prevents the use of any information obtained if there is the slightest hint

of noncompliance”).

> See, e.g., United States v. Elie, 111 F.3d 1135, 1139, 1142 (4th Cir.

1997) (“On appeal, the Government does not contend that the district

court erred in suppressing the statements Elie made prior to receiving his

Miranda warnings.” ; “[Defendant’s] statement was voluntary under the

Fifth Amendment.”); United States v. DeSumma, 44 F. Supp. 2d 700,

705-06 (E.D. Pa. 1999); United States v. Rodriguez-Cabrera, 35 F. Supp.

2d 181, 185-87 (D. Puerto Rico 1999).

memoranda submitted to the Court by the Government. See FBI

Memorandum, supra note 17, at 1-2; 1998 DEA Memorandum, supra

note 22.

384 U.S. at 474. In Edwards v. Arizona, 451 U.S. 477

(1981), Arizona v. Roberson, 486 U.S. 675, 682-83 (1988),

and Minnick v. Mississippi, 498 U.S. 146 (1990), the Court

created a “‘second layer of prophylaxis’” regarding a

suspect’s request for the assistance of counsel, see United

States v. Davis, 512 U.S. 452, 458 (1994).”” In these cases,

the Court held that once counsel has been requested, law

enforcement is forbidden from ever questioning the suspect

again unless an attorney is present, even if the suspect is

again given Miranda warnings and voluntarily responds to

subsequent questioning, or already has had the opportunity to

consult with an attorney.“ Fven if the later interrogation

relates to another crime and is conducted by a different set of

law enforcement officers, any confessions must be excluded

because of the invocation of the right to counsel in the

earlier, unrelated context.*®

The effect of these cases has been to render many

suspects “question proof’ because of the threat that any

The Government, while recognizing the harmful effects of these

cases, argues that addressing the extensions of Miranda found in this line

of cases should be saved for another day. See Brief of United States at

35-36. This fails to recognize that any decision on the validity of section

3501 necessarily implicates the decisions in Edwards, Roberson, and

Minnick because section 3501 directs that courts “shall” admit into

evidence voluntary confessions, whether or not suspects request the

assistance of counsel. Of course, whether law enforcement officers

honor such requests will most assuredly bear on the issue of

voluntariness (or the lack thereof). See 18 U.S.C. § 35061(b) (court must

consider “whether or not [the] defendant was without the assistance of

counsel when questioned and when giving [the] confession”).

** See Minnick, 498 U.S. at 151-52; Edwards, 451 U.S. at 484-85; see

also LaFave & Israel, supra note 15, § 6.9, at 345 (Edwards is “best

viewed as creating a per se rule proscribing any interrogation of an

accused who has invoked his right to counsel”).

*° See Roberson, 486 U.S. at 682-83 (applying the “prophylactic

Edwards rule” to a “police-initiated interrogation following a suspect’s

request for counsel . . . in the context of a separate investigation”).

confession made after the suspect has requested the advice of

counsel will be suppressed, even if there is no finding that

the confession was involuntary.“ Years may elapse, and if

the assistance of counsel has been invoked once, law

enforcement may never have a chance to question that

person again, unless the suspect arranges for counsel to be

present.’ Suspects, knowing that they can speak with

impunity if counsel is not present, have little incentive to

arrange for the presence of counsel. Moreover, when more

than one law enforcement agency is investigating the same

person, there is the risk that one agency may not know that

the suspect has invoked the assistance of counsel during

previous questioning by another agency.” The unsuspecting

officer may then elicit a confession that will later be

suppressed, despite the fact that it was completely

FBI Memorandum, supra note 17, at 1-2.

“An extreme example of this application of Miranda’s exclusionary

rule occurred in United States v. Green, 592 A.2d 985 (D.C. 1991), cert.

granted, 504 U.S. 908 (1992), cert. dismissed as moot, 507 U.S. 545

(1993). There, a suspect invoked his right to counsel during questioning

by federal law enforcement about possession of a controlled substance.

He eventually pled guilty and was incarcerated. Over five months after

invoking his right to counsel, and while in prison, local law enforcement

obtained an arrest warrant for the suspect, charging him with

involvement in a robbery and murder that were unrelated to his

conviction for drug possession. After being read his Miranda rights by

local law enforcement and having waived the assistance of counsel, he

confessed to his involvement in the robbery and murder. At trial, his

confession was suppressed because he had asked for a lawyer in

connection with the initial drug charge. See id. at 985-87 (relying on

Minnick). The D.C. Court of Appeals affirmed. See id. at 991 (applying

Edwards, Roberson, and Minnick, and stating that if there is a limiting

aspect to these cases that would allow questioning in this circumstance, it

is up to this Court to identify that “red thread”).

“See Roberson, 486 U.S. at 678 (suspect was questioned a second

time by an officer who “was not aware of the fact that [the suspect] had

requested the assistance of counsel three days earlier”).

voluntary.” Even a waiver at the beginning of the second

round of questioning cannot undo the suspect’s earlier

invocation of his rights.“*

Our society pays a high price for the suppression of

confessions based on such “technicalities,” namely the

release of confessed criminals. While society expects the

constitutional rights of suspects to be protected,** society also

expects that the justice system will not allow confessed

criminals, whose constitutional rights have been respected, to

go unpunished based on “technicalities.”

“See FBI Memorandum, supra note 17, at 2 (“{T]he protections

[outlined in these cases] complicate the right to counsel rule since it is

often difficult for law enforcement officers to discern and comply with

those protections. As a result, completely voluntary statements may get

suppressed because of technical violations of Miranda and its progeny.”).

“See Green, 592 A.2d at 986 (after being given Miranda warnings

before second round of questioning, suspect waived the assistance of

counsel). The Court’s cases in the area of requests for assistance of

counsel stand in sharp contrast to its cases dealing with a suspect who

invokes the right to remain silent. In the latter situation, officers must

““scrupulously honor(}’” such a request, but are permitted to question a

Suspect again about a different criminal matter as long as a sufficient

period of time has passed after the first round of questioning ceased (a

matter of hours may be permissible) and Miranda warnings are given

again when questioning resumes. See Michigan v. Mosley, 423 U.S. 96,

102-06 (1975) (no passage in Miranda “can sensibly be read to create a

per se proscription of indefinite duration upon any further questioning by

any police officer on any subject, once the person in custody has

indicated a desire to remain silent”).

* See Petitioner's Brief at 44-45; Brief of United States at 49: Bell

Brief at 24-25.

an effective law enforcement policy that prevents criminals from being

released based on such “technicalities” :

[W]e also “must consider society’s interest in the effective

prosecution of criminals in light of the protection our pre-

Mirand lards afford criminal defendants.” These i

B. Section 3501 Will Prevent Voluntary Confessions

from Being Suppressed.

The virtue of section 3501 is that it remedies the excesses

of Miranda’s exclusionary rule, while still providing

incentives for law enforcement to adhere to Miranda’s

procedural safeguards.” Section 3501 does not completely

eliminate Miranda’s exclusionary rule Rather section

3501 simply tempers the rule to exclude confessions only

when the Fifth Amendment has in fact been violated, rather

than employing an irrebuttable presumption that every time

the procedural safeguards are not followed, an ensuing

confession is involuntary.” Under section 3501, oversights

and harmless mistakes by law enforcement will no longer be

grounds for throwing out voluntary confessions.

Placing the trigger for section 3501’s exclusionary rule

on the finding of a constitutional violation also brings it into

harmony with the application of the exclusionary rule in

other criminal procedure contexts. For example, the fruits of

an illegal search are generally only excluded when the court

finds that “evidence [has been] obtained in violation of the

Fourth Amendment.” Jilinois v. Krull, 480 U.S. 340, 347

(1987).” The same is true with regard to the right to counsel,

may be outweighed by the need to provide an effective sanction

to a constitutional right, but they must in any event be valued.

Tucker, 417 U.S. at 450-51 (citations omitted).

“’ See supra Parts | and II.

“ See 18 U.S.C. § 3501(a) (confessions are only admissible if

“voluntarily given”).

* Compare id. with Miranda, 384 U.S. at 444 (“[T]he prosecution may

not use [confessions] . . . unless it demonstrates the use of procedural

Sennete eiiative te the privilege againet self-incrisnination.”).

° Of LaFave & Israel, supra note 15, § 3.1(e), at 114 (evidence may

also be suppressed if a federal or state statute or administrative regulation

where the trigger for excluding evidence is an actual

violation of the Sixth Amendment. See, e.g., United States v.

Bierey, 588 F.2d 620, 623 (8th Cir. 1978) (“[O]nce it is

shown that the lineup was conducted in violation of an

accused's sixth amendment right to counsel, all evidence of

the pretrial confrontation and of the subsequent in-court

identification by the witness is to be excluded... .”). In

contrast, under the Miranda exclusionary rule, the trigger for

the suppression of evidence is the violation of a prophylactic

safeguard. See Elstad, 470 U.S. at 307.

Section 3501 also creates consistency among the various

applications of the exclusionary rule in the Fifth Amendment

context. The Court has held that “in situations that fall

outside the sweep of the Miranda presumption,” Elstad, 470

U.S. at 307, such as when prosecutors seek to introduce

evidence that was discovered as a result of a confession

given without Miranda warnings, see, e.g., Tucker, 417 U.S.

at 435, 448-50, “‘the primary criterion of admissibility

[remains] the “old” due process voluntariness test,’” Elstad,

470 US. at 307-08 (quoting Schulhofer, Confessions and the

Court, 79 Mich. L. Rev. 865, 877 (1981)) (alterations in

original). Section 3501 creates a single test to deal with all

confessions and the fruits therefrom — i.e., whether there was

a violation of the Fifth Amendment prohibition against

involuntary self-incrimination.

In short, section 3501 reins in the exclusionary rule to

reach only those confessions elicited in violation of the

suspect’s Fifth Amendment rights.

has been violated, but even then the exclusionary rule does not

“inevitably follow’).

CONCLUSION

For the foregoing reasons, the Court should affirm the

Fourth Circuit’s decision that 18 U.S.C. § 3501 governs the

admission of voluntary confessions in federal criminal cases.

Of Counsel

LYLE ROBERTS

1806 W. Abingdon Dr.

Apt. 202

Alexandria, VA 22314

March 9, 2000

Respectfully submitted,

ROBERT F. HOYT

Counsel of Record

KARAN BHATIA

HESTER PEIRCE

CHRISTOPHER SIMKINS

WILMER, CUTLER & PICKERING

2445 M Street, N.W.

Washington, DC 20037

(202) 663-6000

Counsel for Amicus Curiae

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.