Amicus Curiae Brief — Michigan v. Tucker

TABLE OF CONTENTS

Page

ag gS Se dS 0) Sd 8 > il-vil

INTEREST OF AMICUS i BS a Reena 1-2

immense OF ARGUMENT ....................5...:...20%" 2-5

ARGUMENT:

I. Where statements are obtained from a criminal

accused in violation of Miranda v Arizona,

derivative evidence obtained as a fruit of that

illegality must be suppressed, whether that

evidence he physical or testimonial in char-

ON i ea ic dniccdcscwusen), Gea

II. The standards enunciated by this Court in

Miranda v Arizona represent minimum safe-

guards against coercive admissions and con-

ets ecceernccepscecsnsecensare 14-22

A. The Miranda standards are a manageable

non-disruptive requirement of the law en-

I oc 14-18

B. The Miranda standards satisfy a legitimate

and continuing concern for the integrity

of custodial interrogations . .......................... 18-22

III. Federal Habeas Corpus is an appropriate

forum for reviewing alleged violations of peti-

tioner’s Fifth Amendment Rights ...................... 22-34

A. Federal Habeas Corpus is an important ve-

hicle in protecting the individual against

intolerable Government illegality, and re-

view of alleged Miranda violations occur-

ring in state proceedings is one effective

way to insure that protection ...................... 23-32

WO KR ik pe IRE SPA OM REARS

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TABLE OF CONTENTS (CONT’D)

Page

B. Even if this Court should limit Federal

Habeas Corpus Review in relation to ap-

peals based on Fourth Amendment exclu-

sionary case as suggested by Justice Powell

in Schneckloth, no such limitation should

apply to review of Miranda issues since the.

same factors do not apply to Federal Collat- ~

eral Review of Fifth Amendment Issues .. 32-34

a

CONCLUSION ooeccccccccccececcecccecceccecceneeesneeceeseeceteseeteeeeeeeees 34

TABLE OF AUTHORITIES

CASES:

Page

Agnello v United States, 269 US 20, 46 S Ct 4, 70

Ty Bid 145 (1925) ........occccceescccsonsscooescccnscsenlecnsensenseass 9,12

Albertson v Subversive Activities Control Board,

382 US 70, 86 S Ct 194, 15 L Ed 2d 165 (1965) .. Il

Amos v United States, 255 US 313, 41 S Ct 266,

65 L Ed 654 (1920) .2n..eeeeceeeceeeeseeeeeeeeeeeceeeeeeeeeees 9

Blackburn v Alabama,: 361 US 199, 80 S Ct 274, |

4 L Ed 2d 242 (1960) ........0.20 esas 19

Boyd v United States, 116 US 616, 633, 6 S Ct

524, 29 L Ed 746 (1885) 000... ee eee - 8-9

Bram v United States, 168 US 532, 18 S Ct 183,

42 L. Bed 568 (1897) n......ceeeeeeee ee eeeeeceeeeeeeeeeeeeeees 9

Byars v United States, 273 US 28, 47 S Ct 248,

(pie he. EY Ue GL) |) ence ence enon 9

Coolidge v New Hampshire, 403 US 443, 91 S Ct

DOOD 29 1; Wid Dod SOE CUSTEY nnsncassccssvncssinss 7

POSSE DARIO Pet Ri Kee SEE OE: +SEE ARERR Rr AEP ENE ar were ee Ry

lll

TABLE OF AUTHORITIES (CONT'D)

Counselman v Hitcheock, 142 US 547, 12 S Ct 195,

35 L Ed 1110 (1892) ooo ccocececeeeees

Davis v Mississippi, 394 US 721, 81 S Ct 1394,

22 Ta Ed 2d 676 (1969) o.oo tcc cece cee cece.

Davis v United States, 328 US 582, 66 S Ct 1256.

90 L. Ed 1453 (1945) ooooccccccccccccceccececceceeeeceeee,

Entick v Carrington, 19 Howell’s State Trials 1029

0; ot b . | | en nn

Feldman v United States, 332 US 487, 64 S Ct 1082,

88 L Ed 1408 (19438) 220.2 ceceececcec eee

Gouled v United States, 255 US 298, 41 S Ct 261,

65 Le Ed 647 (1920) oo. cece cecececeeeeeeeeeedeeeeee

Graw v United States, 287 US 124, 53 S Ct 38, .

77 Le Ed 212 (1982) oo.ceccceeee ccc cceceeeeeceeeeeeee

Hale v Henkel, 201 US 43, 26S Ct 370, 50 L Ed .

SP © A, 15)

Haynes v Washington, 373 US 503, 83 S Ct 1336,

10 L Ed 2d 513 C19GS) ........cccccccccscccseseeescscsesseosens

Johnson v United States, 333 US 10, 68 S Ct 361,

92 Li Ed 436 (1947) nnn eee eeececcsseessecesneeeeness

Kastigar v.United States, 406 US 441, 92 S Ct

1653, 32 L Ed 2d 212 6) eee ree

Katz v United States, 389 US 347, 88 S Ct 507,

19 Le Ed 2d 576 (1967) o.c.ceeceeeecececceceeceeeeeee

Lynumn v Illinois, 372 US 528, 83 S Ct 917, 9

L Ed 2d 922 (1963) 0.....e.ccececeeeeeeeeee ee

Malloy vy Hogan, 378 US 1, 84 S Ct 1489, 12 L Ed

2d G53 (1964) nn ceeeeeeeccececccccceccecscccceseceeeeececeeeetiee

iv

TABLE OF AUTHORITIES (CONT'D)

Page |

Mapp v Ohio, 367 US 483, 81 S Ct 1684, 6 L Ed

2d 1081 (1961) 2eeeeeeleecescoseesseeeeeeesnnsnnceenseeetseeeeen 1

’ McGuire v United States, 273 US 95, 47 S Ct 259,

T1 Le Ed 556 (1927) 2o.ccccccceecceeeeceeeececcteeeeeseeeeees 7 9

Miranda v Arizona, 384 US.719, 86 S Ct 1772,

16 L Ed 2d 694 (1966) 0.0.2.0... 5, 6, 13-22, 34 -

Murphy v Waterfront Commission, 378 US 52, 84

S Ct 1594, 12 L Ed 2d 678 (1964) _...02022.00......... 10, 11,12

Nardone v United States, 308 US 388, 60 S Ct 266,

84 LB 307 (1939) 2.2... eceecececeseeeeeeceeeeeeeeees 6

Schneckloth v Bustamonte, 412 US 218, 36

L Ed 2d 854, 93 S Ct 2041 (1973) .............. 22, 23, 25, 29,

: “ON 30, 32, 33, 34

Silverthorne Lumber Co v United States, 251 US

385, 40 S.Ct 182, 64 L Ed 319 (1920) ................ 6

Stroble v California, 343 US 181, 72 S Ct 599,

96 L Ed 872. (1951) 2u....eeeeeceeeeeeeeeeeeeeeeeee eee: 19

Tehan v United States ex rel Schott, 382 US 406, .

15 L Ed 2d 453, 86 S Ct 459 ......00. 33-34

United States v Lefkowitz, 285 US 452, 52 S Ct

420, 76.L Ed 877 (1981) .................. pees 9

Watts v Indiana, 388 US 49, 68 S Ct 1347, 93

L Ed 1801 (1949) 000... cece Seeseensesares 22

Weeks v United States, 232 US 383, 34 S Ct 341,

58 L Ed 652. (1914) ....----.-------eoneeo-een-ssneeeetene snes 7,9

Wong Sun v United States, 371 US 471, 83 S Ct

MOT, SLi Hod Pa BAL. (EGGS) ona eccesecscigss nieces 6, 22

Zap v United States, 328 US 624, 66 S Ct 1277,

GO Le Wed 2477 (1945) -..------o.--2-------c-necceecosnvenenens 9

¥v

TABLE OF AUTHORITIES (CONT'D)

Page

CONSTITUTIONS:

U.S. Constitution : .

Fourth: Amendment © ..............2.....-.+-- ...6-9, 13, 14, 33, 34

Fifth Amendment ..........2.....2....--0-0:.-.-.------0914, 18, 38, 34

e

ARTICLES AND BOOKS:

10 John Adams, Works 247 ......02.....2....eeceeeeceeeeeeee . 8

Amsterdam, ‘‘Criminal Prosecutions Affecting

Federally Guaranteed Civil Rights: Federal

Removal and Habeas Corpus Jurisdiction to

Abort State Trial Court’? 113 U Pa L Rev

Bater, ‘‘Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners’? 76 Harv ~

L Rev 441 (1963) 2... .eeeeceeececececeeeeeeeeece tee eeee 23

Bell, ‘‘Racism in American Courts: Cause for

Black Disruption or Despair?’’ 61 Calif L

Rev 165 (1973) .0....22...---c-ceececee eececceceeeeeeeseeeceeeeees 16

Chureh, W., ‘‘A Treatise on the Writ of Habeas

Corpus’? 31 (2nd ed 18938) 2.2... eee eee 24

‘Developments in the Law: Federal Habeas Cor-

_ pus’? 83 Harv L Rev 1038 (1970) ............ 23, 24, 26-30, 32

Driver, ‘‘Confessions and the Social Psychology of.

Coercion’’, 82 Harv L Rev 42 (1968) ............ 17

Fraenkel, ‘‘Concerning Searches and Seizures’’

34 Harv L Rev 361 (1921) ........22...0.2..2.e eee 8

Friendly, ‘‘Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments’’, 38 U Chi L

Bey 182 (ISTO). eee ee 25, 29, 30

vl

TABLE OF AUTHORITIES (CONTD)

: | Page

Griffiths & apres. ‘‘A Postscript to the Miranda

Project: Interrogation of Draft eoestere™

77 Yale LJ 300 (1967) ooecccecceccecceccececteseeceeeeseeee 17

Kamisar, ‘Equal Justice in the Gatchouses aad

Mansions of American Criminal Procedure’’

6.6, 5) Jeena ee 20-21

Lasson, ‘*The History and Development of the

Fourth Amendment to the United States Con-

stitution’? (1937) esses b epeceieqeerronecs :

Leiken, ‘‘Police Interrogation in Colorado’? 47

Denv L J 1 (1970) neces 17

Marden & Silverstein, ‘‘The Growing Importance

of Criminal Law’’ 53 ABAJ 511 fn 20 (1967) .. 17

MeCullough, ‘‘ Balancing the Rights of the Accused

and the Public in Constitutional Probity’’ 54

ABAJ 273 (1968) _ .................--- Secraiucspeeeenvracontee 17

Medalie, Zeitz & Alexander, ‘‘Custodial Police

Interrogation in Our Nation’s Capital: The

Attempt to Implement Miranda’’ i Mich L

Rev 1347 (1968) 20... cceeteeeeeleecdeceeees ae 17

Mosk, ‘‘The Anatomy of Violence’’ Beverly Hills

B J, (Oct. 1968) on. cee eeeeecec eee eteee eee ceeeeeeee: 16

Note, ‘‘Interrogation in New Haven: The Im-

pact of Miranda’? 76 Yale L J 1519 (1967)... 16-17

Oaks, ‘* Legal History in the High Court — Habeas

‘Corpus’’ 64 Mich Law Rev 451 (1966) ......... 23, 24

Reitz, ‘‘Federal Habeas Corpus:* Postconviction

Remedy for State Prisoners’’ 180 U Pa L Rev

461 (1960) ..... pode lames ceesasteseces eoedenigeecetvinesusyontasea eee 31

Schaefer, ‘‘Federalism and State Criminal Pro- —

cedure’’, 70 Harv L Rev 1, 22 (1956) .......... 2i

EERE POE EET oR PO NO NON

vii

TABLE OF AUTHORITIES (CONT'D)

Page

Seehureer & Wettick, ‘‘Mtranda in Pittsburgh —

A Statistical Study’? 29 U Pitt I. Rev 1

CECT) senceseccectecceepeeacterasteanradnersspaaneeaen sear renee 15, 17

Shapiro, ‘‘Federal Habeas Corpus: A, Study in .

Massachusetts’” 83 Harv L Rev 321 (1973) .. 29.51

Sobel, N., ‘The New Confession Standards: Mir-

anda v Arizona: A Legal Perspective, A Prac-

tical -Perspective’” (1966) .........0.t.-c.cesecceceeeeeees - 16

Stephens, Flanders and Cannon, ‘‘Law Enforee-

ment and the Supreme Court: Police Pereep-

tions of the Miranda Requirements’’ 39 Tenn

| Pan Scar a OLY 6) en _ 15

Younger, ‘‘Interrogation of Criminal Defendants

— Some Views on Miranda yv Arizona’ 3) | :

Fordham L Rev 255 (1966) ..... 6 eases 16

Younger, ‘‘Results of a Survey Conducted in

the District Attorney’s Office of Los Angeles

County Regarding the Effect of the Miranda

Decision Upon the Prosccution of Felony

Cases’? 5 Am Crim L Q 32 (1966) .........:...--.-.- 16

Zeitz, Medalie & Alexander, ‘‘ Anomie, Powerless-

ness and Police Interrogation’’, 60 J Cr L Cr

PS B14 (1969) oeccccccescssesecessesssseesseeeecnnnnceneeeeeeeee 17.

Be are ENR OO bey

No. 73-482

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1973

Srate oF MICHIGAN,

Petitioner,

vs.

Tuomas W. Tucker,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

BRIEF OF CIVIL LIBERTIES COMMITTEE, STATE BAR

OF MICHIGAN AS AMICI CURIAE IN SUPPORT uF

_ THE RESPONDENT

This brief is filed pursuant to Rule 42 of the Supreme

Court Riles. Consent to file has been granted by the Office

of the Prosecutor of Oakland County Michigan, counsel

for the Petitioner, and by Kenneth M. Mogill, Esq., counsel

for the Respondent. Letters of consent of both parties

have been filed with the Clerk of the Court. .

INTEREST OF AMICUS CURIAE

‘The views expressed herein are-those of the State Bar of

Michigan, Committee on Civil Liberties only and do not

necessarily represent the views of the Bar as a whole.

The State Bar of Michigan Committee on Civil Liberties

was established by the parent organization to consider the

2

effect of legislation, legal decisions and state action on the

civil liberties and Constitutional rights of Michigan citizens,

It is the belief of the Michigan State Bar Civil Liberties

Committee that this case raises serious questions as to

the preservation of Constitutional liberties presently pos-

sessed by citizens of the State of Michigan. The Civil

Liberties Committee of the Michigan State Bar has heen

actively involved in the protection of the civil liberties

of Michigan citizens with the recognition that the liberties

of its citizens must be preserved but balanced with rational

police conduct. It is the belief of the Committee that

the retention and advancement of. presently held Consti-

tutional rights of Michigan citizens best protects their

rights, the effectiveness of Michigan’s law enforcement

agencies, and the administration of justice in Michigan

Courts. Any retrenchment on present policies would not

improve law enforcement practiees, would grievously and

irreparably harm the civil liberties of Michigan citizens

and inealeuably impair the administration of justice in

Michigan courts.

SUMMARY OF ARGUMENT — ISSUE I

Traditional notions of Fourth and Fifth Amendment

guarantees recognize that the vitality of these Amendments

lies in their mutual interdependence as well as their mutual

dependence upon exclusionary rules evidence. Such ex-

clusionary rules operate to render inadmissible evidence

directly obtained by illegal methods, and any form of evi-

dence derived from investigative leads arising from the

initial illegal intrusion. The application of the exclusion-

ary rules of evidence to Miranda violations, finds its justi-

fication in the concentricity of Fourth and Fifth Amend-

ment protections forming the basis of the Miranda require-

ments. The exclusionary rules of evidence are virtually the

only viable means of insuring the vindication of an in-

dividual’s constitutional rights in the face of unwarranted

government intrusion. The government is thus forwarned

that any illegal activity will not be judicially sanctioned by

acquiescing in admission into a court of law evidence ob-

°

ECB Tie ~ : . 0d A ARE tc Oe

3

tained through illegal methods. The exclusion of direct

evidence. as well as derivative evidence, be it testimonial

or physical in nature, furthermore, serves the essential

purpose of insuring the integrity of the judicial process.

_ SUMMARY OF ARGUMENT — ISSUE I

The deleterious impact of the Meranda standards, fore-

warned by the dissents in Miranda and by critics of the

Miranda majority, have failed to materialize. _ Post-

Miranda studies assert that while the number of confes-

sions obtained by law enforcement officials has declined,

convictions in the post-Miranda period have remained con-

stant or have risen. Moreover, law enforcement officers

concede that Miranda has presented no serious impediment

to effective law enforcement. The Miranda warnings rep-

resent a consistent, easily implemented standard by which

law enforcement personnel can advise a suspect of Con-

stitutional rights which obtain during custodial interroga-

tions. The warnings are currently an integral, non-dis-

ruptive requirement of the law enforcement function.

A regression to the ‘‘totality of the circumstances’’ test

for determinations of voluntariness, as suggested by Peti-

tioner, would serve to reimplement an ineffective and un-

manageable standard. It would encourage technical and

‘“‘minor’’ violations of individual Constitutional rights in

order to obtain confessions. A return to the totality test

will signify that trials, in confession cases, represent only

an appeal from a ‘‘successful’’ interrogation.

This Court properly determined in Miranda that cus-.

todial interrogations are inherently coercive. Miranda

warnings assist in militating against such coercive pres-

sures. Miranda safeguards and encourages the exercise of

individual Constitutional rights without significant dele-

terious effects upon law enforcement officials or the ad-

ministration of justice. Abandonment of these safeguards

would have no basis either in logie or precedent. Miranda

v Arizona should be retained in its entirely.

SUMMARY OF ARGUMENT — ISSUE III

The question of whether federal habeas corpus is an

appropriate forum for reviewing alleged violations of a

petitioner's Fifth Amendment rights is also before this _

Court. Amici first urges this Court to closely scrutinize

the contention put forth by some that federal habeas corpis:

jurisdiction should be limited to cases which present a

colorable claim of innocence. Such a proposition clearly

intimates a greater federal involvement in the retrying

of facts already resolved by the state trial courts. Thus,

the proposition is counterproductive to the desired ends

of preserving state court integrity and autonomy and, .

ultimately, minimizing friction between the state and federal

judicial systems. ,

To put forth an argument that federal habeas corpus

jurisdiction should be concerned with a colorable claim of

innocence is to misunderstand the institutional setting of

state court criminal proceedings vis-a-vis federal habeas

corpus collateral review. State courts tend to have- as

their primary objective the enforcemeat of state substan-

tive criminal law, and therefore may subordinate the in-.

dividual’s. right to protection from improper state action.

The federal courts are in a unique position, being a step

removed from the overriding (state) goal of enforcement of

state law, to undertake an objective second look at the

state’s application of the Constitution to the factual setting

of the case. Thus, the colorable claim of innocence theory

misses the crucial point that, in light of the distinct in-

stifutional function of the federal courts (as opposed to

the state courts), the federal courts must be concerned

with the factual setting of a case only insofar as it is neces-

sary to review whether the state jurisdiction correctly ap-

plied the Constitutional standard in issue to the facts.

Amici also have brought to the Court’s attention the

fact that, even if this Court should limit federal habeas

corpus jurisdiction in relation to appeals based on Fourth

Amendment exclusionary violations, as suggested by Mr.

Justice Powell’s concurring opinion in Schneckloth v Busta-

monte, no such limitation should be placed on federal

a)

habeas review of Fifth Amendment. claims. The reason

for such a stance is based on the nature of the protections

afforded by each Amendment. If the argument that the

nature of Fourth Amendment protections focus on the

security of one’s privacy from state intrusion is meri-

torious, then it might be concluded that a Fourth. Amend-

ment violation does not touch upon the fairness of the trial

itself, and therefore should not be grounds for federal

habeas review. However, it is generally agreed that the

Fifth Amendment cuts to the very heart of. the truth-

determining process, especially when considered in light

of custodial interrogation. As a consequence, the relia-

bility of the truth-determining process and fairness of

the trial is usually in issue when a Fifth Amendment ques-

tion is at stake. Thus, the considerations used to buttress

the argument for limiting federal habeas corpus Fourth

Amendment review are inapplicable to a discussion of any

possible limitation on federal habeas corpus Fifth Amend-

_ment review.

ARGUMENT

_ L_ Where statements are obtained from a criminal ac-

cused in violation of Miranda v Arizona, derivative evidence,

obtained as a fruit of that illegality must be suppressed,

whether that evidence be physical or testimonial in char-

acter. |

‘ f

Miranda v Arizona, 384 US 719, 86 S Ct 1772, 16 L Ed

2d 694 (1966) applying the Fifth Amendment held that all

statements made by one who is ‘‘in custody’’ at the time of

their declaration, whether they are characterized as confes-

sions or as admissions, ineulpatory or exculpatory, be ex-

cluded from the evidence if the Miranda warnings were

not properly given and if no valid waiver is made of the

privilege against self-incrimination. Not only is the direct

statement to be suppressed but incriminating evidence

derived from investigative leads resulting from the direct

statement regardless of whether that derivative evidence

7

6

be testimonial or physical in nature, must also be sup.

pressed. Wong Sun v United States, 371 US 471, 83 S (Ct

407, 9 L Ed 2d 441 (1963); Nardone v United States, 308

US 388, 60 S Ct 266, 84 L Ed 307 (1939); Silverthorne

Lumber Co.~ United States, 251 US 385, 40 S Ct 182, 64

L Ed 319 (£920); Davis v Mississippi, 394 US 721, $1 S Ct

1394, 22 L Ed 2d 676 (1969); Kastigar v United States,

406 WS 441, 92 S Ct 1653, 32 L Ed 2d 212 (1972). Such

a rule is virtually the only jurisprudential method capable

of effectively vindicating Fourth and Fifth Amendment

constitutional guarantees to inviolate personality: the

Government is forewarned that an illegal intrusion upon

these constitutional rights should not be sanctioned by

participation in the wrong through judicial acquiescence

in the use of illegally obtained evidence.

As a practical matter, the rule excluding all forms of

derivative evidence is of importance in terms of possible

undesirable restraints on law enforcement processes. Clear-

ly, police interrogate suspects to obtain either (1) state-

ments that can later be presented in court as evidence, or

(2) leads from a suspect on the basis of which they can

discover real or demonstrative evidence, or identify prose-

cution witnesses, and thus present a persuasive array of

proof in court. Such purposes and procedures are unques-

tionably an integral part of effective law enforcement and

investigation of crime. That these purposes and _pro-

cedures have not been adversely affected by the Miranda

exclusionary rule is manifest from the abundance of studies

examining this precise concern cited elsewhere in_ this

amicus curiae as well as in Respondent’s Brief. To the

contrary, these studies evince the general conclusion that

Miranda’s effect on criminal convictions has been at worst

negligible, and at best a positive inspiration for more

scientific, professional and precise law enforcement prac-

tices. Little factual support exists, therefore, for seriously

arguing that-an exclusionary rule requiring the suppres-

sion of evidence derived from statements obtained in vio-

lation of Miranda, will traumatize and debilitate law en-

forcement.

The exclusionary rule as it relates to derivative evidence

has long been considered a legitimate and essential method

So) ONC le i:

7

of insuring the enforcement and integrity of Fourth Amend-

ment Constitutional rights. The purpose of such exelu-

sionary rules is clearly not always to insure the trust-

worthiness of the evidence’ so derived. Rather, the ex-

clusionary rule has been “utilized to enforee the Fourth

Amendment mandate requiring respect for the sanctity of

the division of governmental powers concept: that the

executive function of law enforcement shall be separate

from and reviewable by the judicial branch, i.e. before

the executive shall act to invade a citizen’s privacy through

arrest, Search, or seizure, the legitimacy of that action

shall be passed upon by objective and neutral judgment

of the judiciary. Johnson v United States, 333 US 10, 68

S Ct 361, 92 L Ed 436 (1947); Mapp v Ohie, 367 US 483,

81 S Ct 1684, 6 L Ed 2d 1081, (1961); Weeks v United

States, 232 US 383, 34 S Ct 341, 58 L Ed 652 (1914).

The very integrity of the individual citizen’s Fourth

Amendment right to be free from illegal search and seizures

is itself an independent justification for the exclusionary

rule. (Coolidge v New Hampshire, 403 US 448, 91S Ct

2022, 29 L Ed 2d 564 (1971); Davis v Mississippi, 394

US 721, 89 S Ct 1394, 22 L Ed 2d 676 (1969). Further-

more, the individual citizen’s right to privacy insured by

the Fourth Amendment, is vindicated by the exclusionary

rule which suppresses the statements of the individual ob-

tained without his knowledge and permission or without

a search warrant. Katz v United States, 389 US 347, 88

S Ct 507, 19 L Ed 2d 576 (1967). To virtually every aspect

of Fourth Amendment rights the exclusionary rule of evi-

dence as well as the derivative evidence exclusionary rule

have been applied.

Respondent submits that no good reason exists not to

apply the derivative evidence exclusionary rule to the

Fifth Amendment, and that, in fact, logic and precedent

compels such a result.

The historical legal precedent most frequently celebrated

as the antecedent for the Fourth and Fifth Amendments is

Entick v Carrington, 19 Howell’s State Trials 1029 (CP

1765). In Entick, Lord Camden laid down two distinct

principles: that general search warrants are unlawful be-

cause of their uncertainty; and that searches for evidence

8

are unlawful because they infringe the privilege against

self-incrimination :

“It is very certain, that the law obligeth no man

to accuse himself; because the necessary means of

compelling self-accusation, failing upon the innocent

as well as the guilty, would be both cruel and unjust,

and it should seem, that search for evidence is dis-

allowed upon the same principle.’’ at 1073.

Lord Camden’s double focus was carried over into the

structure of the Fourth Amendment. See Lasson, ‘‘The

History and Development of the Fourth Amendment to

the United States Constitution’’ (1937); Fraenkel, ‘‘Con-

cerning Searches and Seizures’’ 34 Harv L Rev 361 (1921),

The two clauses of the Fourth Amendment are in the

conjunctive, and plainly have distinct functions. The

Warrant Clause was aimed specifically at the evil of the

general warrant, aften regarded as the single immediate

cause of the American Revolution. See 10 John Adams,

Works 247. But the first clause embodies a more encom-

passing principle. It is, in light of the Entick decision, that

government ought not to have the untrammeled right to ex-

tract evidence from people.. Thus viewed, the Fourth

Amendment is complimentary to the Fifth. Feldman v

United States, 332 US 487, 64 S Ct 1082, 88 L Ed 1408

(1943). In Boyd v United States. 116 US 616, 633, 6 S Ct

524, 29 L Ed 746 (1885), the U.S. Supreme Court described

the vital interaction of the Fourth and Fifth Amendments

this way:

‘We have already noticed the intimate relation be-

tween the two amendments. They throw great light

on each other. For the ‘unreasonable searches and

seizures’ condemned in the Fourth Amendment are al-

most always made for the purpose of compelling a

man to give evidence against himself, which in criminal

eases is condemned in the Fifth Amendment; and com-

pelling a man ‘in a criminal case to be a witness

against himself’, which is condemned in the Fifth

Amendment, throws light on the question as to what

is an ‘unreasonable search and seizure’ within the

Y

,

meaning of the Fourth Amendment. And we have been

unable to pereeive that the seizure of a man’s private

books and papers to be used in evidence against him

is substantially different from compelling him to be

a witness against himself.’’

Boyd’s basic principle, that the Fourth and Fifth Amend-

ments interact to create a comprehensive right to inviolate

personality has been repeatedly approved in the deci-

sions of the U.S. Supreme Court. Bram v United States.

168 US 532, 18 S Ct 183, 42 L Ed 568 (1897): Hale vy

Henkel, 201 US 48, 26 S Ct 370, 50 L Ed 652 (1905):

Weeks v United States, supra; Gouled vy United States.

255 US 298, 41 S Ct 261, 65 L Ed 647 (1920): Amos v

United States, 255 US 313, 41 S Ct 266, 65 L Ed 654 (1920) :

Agncllo v United States, 269 US 20, 46 S Ct 4, 70 L Ed 145

(1925); McGuire v United States, 273 US 95. 47 S Ct

259, 71 L Ed 556 (1927); United States v Lefkowitz, 285

US 452, 52 S Ct 420, 76 L Ed 877 (1931): Feldman v

United States, supra; Davis v United States. 328 US 582,

66 S Ct 1256, 90 L Ed 1453 (1945); Zap v United States,

328 US 624, 66 S Ct 1277, 90 L Ed 1477 (1945).

This Court, furthermore, has consistently insisted that .

the maintenance of the right to privacy shall be enforced

by liberal construction of the Fourth Amendment in favor

of the individual. Byars v United States, 273 US 28, 47

S Ct 248, 71 L Ed 520 (1926); United States v Lefkowitz,

supra; Graw v United States, 287 US 124, 53 S Ct 38, 77

L Ed 212 (1932).

This Court’s liberal construction of the Fourth Amend-

ment is paralleled by similarity in construction of the

Fifth Amendment. In Counselman vy Hitchcock, 142 US

047, 12 S Ct 195, 35 L Ed 1110 (1892), this Court held that

a Federal immunity statute failed to proseribe evidence

derived from compelled testimony. Accordingly, under the

principle that a grant of immunity cannot supplant the

Fifth Amendment privilege, and is not sufficient to compel

testimony over a claim of the privilege, unless the scope

of the grant of immunity is coextensive with the scope of

the privilege, the witness’ refused to testify: was held

10

proper. The precise holding of Counselman on this point

declared:

' that legislation cannot abridge a constitutional

privilege, and that it cannot replace or supply (sie)

one, at least unless it is so broad as to have the same

extent in scope and effect.’’ Zd., at 585.

The holding in Counselman clearly could not have been

reached unless the Court was willing to construe the scope

of the Fifth Amendment as excluding not only direct in-

formation from a violation of the privilege, but indirect or

derivative information as well.

In Murphy v Waterfront Commission, 378 US 52, 84.8

Ct 1594, 12 L Ed 2d 678 (1964) the Court was presented

with the question of whether a state could compel a wit-

ness, whom the state had immunized under its law from

prosecution, to give testimony that might then be used to

convict him of a federal crime. Applying the principle

adopted that same day in Malloy v Iogan, 378 US 1, 84

S Ct 1489, 12 L Ed 2d 653 (1964) that the Fifth Amend-

ment privilege applicable to the states through the Four-

teenth Amendment, the Murphy court held:

‘*(A) state witness may not be compelled to give

testimony which may be incriminating under federal

law unless the compelled testimony and its fruits can-

not be used in any manner by federal officials in con-

nection with a criminal prosecution against him. We

conclude, moreover, that in order to impliment this

constitutional rule and accommodate the interests of

the State and Federal Government in investigating and

prosecuting crime, the Federal Government must be

prohibited from making any such use of compelled tes-

timony and its fruits.’? Zd. at 79 (emphasis added).

Addressing itself to the question of dispelling the taint

of evidence sought to be used against such a witness the

court went on to direct that:

‘“‘Onee a defendant demonstrates that he has testi-

fied, under a state grant of immunity, to matters re-

lated to the federal prosecution, the federal authorities

11

have the burden of showing that their evidence is not

tainted hy establishing that they had an independent,

legitimate source for the disputed evidenee.”’ 7d.

at 79",

In emphasizing this latter rule, the Court was requiring

that the Defendant be placed in ‘‘substantially the same

position as if the witness had claimed his (Fifth Amend-

ment) privilege in the absence of a staté grant of immu-

nity.”’ (parenthesis added) (Ibid): that neither direct

evidence obtained from the testimony nor evidence derived

from such testimony would be admissible against the de-

fendant in a subsequent criminal prosecution.

In Kastigar v United States, 406 US 441, 92 S Ct 1653,

32 L Ed 2d 212 (1972), the U.S. Supreme Court was pre-

sented with:

‘¢... the question whether the United States Govern-

ment may compel testimony from an unwilling witness,

who invokes the Fifth Amendment against compul-

sory self-incrimination, by conferring on the witness

immunity from-use of the compelled testimony in sub-

sequent criminal proceedings, as well as immunity

from use of evidence derived from testimomy.’’ Jd. at

442.

The statute conferring the immunity on defendant Kasti-

gar reads in pertinent part:

‘“‘(N)o testimony or other information compelled

under the order (or any information indirectly or in-

directly derived from such testimony of other informa. -

tion) may be used against the witness in any criminal

ease....’? 18 USC §6002.

The Supreme Court interpreted this statute as providing

a total prohibition on use so comprehensive, as to bar both

the utilization of compelled testimony even as to an ‘‘in-

* See also Albertson v Subversive Activities Control Board, 382 US 70, 86 S Ct 194, 15

L Ed 2d 165 (1965).

12

vestigatory lead’’,* and the use of evidence obtained by

focusing investigation on a witness as a result of his com-

pelled disclosures.

The Court in Kastigar concluded that the requirements

of the Fifth Amendment were satisfied by the granting of

use immunity, and not transactional immunity. In reach-

ing this result, Kastigar relied heavily upon Murphy y

Waterfront Commission, quoting with approval the fol-

lowing pertinent language:

_**We conclude, moreover, that in order to impliment

this constitutional rule and accommodate the interests

of the State and Federal Governments in investigating

and prosecuting crime, the Federal Government must

be prohibited from making any use of such compelled

testimony and its fruits.’’ (citations omitted) Kasti-

gar, supra, at 406.

Kastigar determined that the right of the government to

prosecute would be preserved where the government could

establish that their evidence offered against the defend-

ant in a subsequent prosecution was free of taint and de-

rived from an independent, legitimate source. This evi-

dentiary requirement, however, is not to be taken lightly

as it goes to the very core of the Fifth Amendment protec-

tion. Kastigar’s language underscores this regard:

‘‘This burden of proof, which we reaffirm as appro-

priate, is not limited to a negation of taint; rather, it

imposes on the prosecution the affirmative duty to

prove that the evidence it proposes to use is derived

from a legitimate source wholly independent of the

compelled testimony.’’ at 406 US 460.

That this evidentiary test and burden of proof is to be

applied not only to testimonial immunity situations but to

* On this point, Justice Powell cited Albertson v Subversive Activities Control Board, supra,

albeit in several footnotes. 406 US at 455, 458, 460. Albertson determined that the

Fifth Amendment privilege precludes the use of an admission as an investigatory lead,

where an immunity statute failed to confer as comprehensive a safeguard against deriva-

tive use. Jd at 382 US 80.

Le eae ene - ’ oe ee an. oe ce re on

j Rees s ° A

13

any invocation of the Fifth Amendment privilege itself was

clearly manifested in Kastigar:

“This is a very substantial protection, commensurate

with thateresulting from invoking the privilege itself.’’

“The statutory, proscription is analogous to the

Fifth Amendment requirement in cases of coerced con-

fessions. A coerced confession revealing leads as tes-

timony given in exchange for immunity, is inadmis-

sible in a criminal trial but it does not bar prosecu-

tion.’’ At 406 US 461.

It ix submitted, herein, that the purpose of Viranda v

Arizona, supra, was to prevent coerced confessions by in-

suring that certain constitutional protections were made

known to the accused held ‘‘in custody.’’ Failure to ap-

prise an accused of these safeguards, renders any confes-

sion subsequently made, involuntary, and coerced. Such a

confession must be suppressed. Similarly, any investiga-

tory leads from that confession ultimately disclosing other

incriminating evidence must be suppressed unless the Gov-

ernment can eliminate the taint by demonstrating that such

evidence was the result of an independent and legitimate

source.

The Fifth Amendment and Miranda are not the sole

sources of these rules. It is the intimate interaction be-

tween the Fifth Amendment and the Fourth Amendment,’

recognized since the promulgation of those Amendments,

that constitutes the basis of their formulation. The inter-

rogation of an accused by police is a search; it is a search

for information relating to a crime that the police may have

probable cause to believe exists within that person’s knowl-

edge. Where Miranda warnings are not given or defective-

ly given, and a statement obtained, that statement is the

fruit of a Fifth Amendment violation, as well as the prod-

uct of an illegal search and seizure. As shown above, both

the Fourth and Fifth Amendments require the suppres-

sion of both the direct evidence as well as derivative evi-

14

dence unless the Government can establish an independent

source free of taint for such evidence.

It is the position of this amicus curiae, then, that in the

case where a statement obtained in violation of Wiranda

provides investigative leads resulting in the discovery of

other evidence incriminating the accused, both the state-

ment itself and the derivative evidence must be suppressed

as violations of the Fourth and Fifth Amendments, sub-

ject only to proof by the Government of the absence of taint.

II. The standards enunciated by this Court in Miranda

v Arizona represent minimum safeguards against. coercive

admissions and confessions.

A. The Miranda standards are a manageable non-dis-

ruptive requirement of the law enforcement func-

tion.

This Court’s decision in Miranda v Arizona, 384 US 436;

86 S Ct 1602; 16 L Ed 2d 694 (1966) properly declared that

‘‘Tujnless adequate protective devices are employed to dis-

pel the compulsion inherent in custodial surroundings, no

statement obtained from the defendant can truly be the

product of his free choice.’’ 384 at 458. In order to com-

pel the observance of such ‘‘protective devices’’ this Court

promulgated the mandatory ‘‘Miranda Warnings’’, 384 at

478, 479. The ‘‘Warnings’’ requirement has, to date, been

effectiv ely operative for some seven and one-half years.

Petitioner and Amici in Support of Petitioner, Ameri-

eans for Effective Law Enforcement, and the International

Association of Chiefs of Police (hereinafter cited AELE-

TACP), now come before this Court to claim that the stan-

dards enunciated in Miranda are too restrictive and are

‘‘unfair for law enforcement officials’’. Brief of Petition-

er, p. 14. Further, Petitioner and Amici claim this Court

must now ‘‘balance’’ an individual’s Fifth Amendment

right to be free from the use against him of coerced or

compelled admissions or confessions. Brief of Amici,

AELE-IACP, p. 25. Amicus on behalf of Respondent vig-

orously disputes both of these claims.

15

Contrary to the assertions of both Petitioner and Amici

AELE-IACP, the standards required by Miranda do not

seriously impede law enforcement. While, in tact, the num-

ber of confessions obtained had decreased, the number

of convictions have remained, despite this development,

constant. Seeburger & Wettick ‘‘Wiranda in Pittsburgh

— A Statistical Study,’’ 29 U Pitt L Rev 1, 19 (1967).

Perhaps in recognition, the most recent study of the atti-

tudes of law enforcement officials reveals that approxi-

mately three-quarters of those interviewed ‘*. . . asserted

that confessions were becoming less important in the suc-

cessful prosecution of cases.’’ Stephens, Flanders and

Cannon, ‘‘Law Enforcement and the Supreme Court: Po-

lice Perceptions of the Miranda Requirements’’, 39 Tenn L

Rev 407, 421 (1972).

Essentially, most officers seem to view Jiranda as an an-

noyance to be dealt with prior to routine questioning:

‘¢.. most officers in each jurisdiction continued to

express strong misgivings about the Miranda proce-

dure long after it had become a routine part of their

work. They seemed to view the decision as a ‘stum-

bling block’ to investigation — not so much because of

any particular effect on the questioning process per

se, but because, as one officer remarked, it required

them ‘to go through the ritual and paper work and le-

gal technicalities.’ They resented the alleged incon-

venience and, to an even greater extent, the perceived

affront implicit in the requirement of advising sus-

pects prior to interrogation. Most of them were fur-

ther annoyed by their belief that the justices who

fashioned the Miranda rules had little understanding

or appreciation of the difficulties and hazards of po-

lice work. Many of the responses to our questions

were, in short, reminiscent of the attacks leveled at the

Supreme Court by its most vocal law enforcement

critics. We noted, however, that the negative re-

sponses of most detectives were less extreme, less em-

bittered, and less direct than many of the public con-

demnations that greeted Miranda.’’ Police Percep-

tions, supra, at 431.

me Set ae

16

Other studies have similarly rejected any proposition

that the Miranda standards have had a detrimental effect

on the efficiency of law enforcement officials. See Young-

er, ‘Results of a Survey Conducted in the District Attor-

ney’s Office of Los Angeles County Regarding the Effect

of the Miranda Decision upon the Prosecution of Felony

Cases’’, 5 Am. Crim. L. Q. 32 (1966); N. Sobel, ‘‘The New

Confession Standards: Miranda v Arizona, A Legal Per-

spective, A Practical Perspective’’ (1966); Bell, ‘‘Racism

in American Courts: Cause for Black Disruption or Des-

pair?’’ 61 Calif I. Rev 165, 185 (1978) ; Mosk, ‘* The Anato-

my of Violence,*’ Beverly Hills B J, 10, 15 (Oet., 1968). Ob-

viously both common sense and the aforementioned studies

reveal that while the Miranda requirements may be aggra-

vating to law enforgement officers, they are neither too

complex to implement nor detrimental to effectiveness.

Amici AELE-IACP next assert that the rigidity of the

Miranda standards ‘‘... often requires the reversal of con-

victions and the freeing of criminal suspects... .’’. Brief

of AELE-IACP p. 16. In support of this contention, nine

actual cases were cited in which ‘‘technical’’ Miranda vio-

lations required reversal. Amici implies through presenta-

tion of these cases that a technical Miranda violation sub-

stantially impaired law enforcement. Amici failed, how-

ever, to recognize or apprise this Court of the eventual

judicious disposition of each case; more specifically, that ia

six of these cases new trials were ordered, in two, trials

continued without the improper confession, and in one, the

appellate court sua sponte imposed a verdict of man-

slaughter in the absence of the defendant’s confession. In

essence, these cases reveal nothing more than the routine,

mechanical application, and normal consequences of any

rule of law established by this Court.

Amicus for Respondent fully concurs with and reasserts

the position taken by Respondent and in support also cites

to this Court the numerous post-Miranda studies which’

have consistently revealed that neither law enforcement

nor the judicial system have been impaired by application

of the Miranda Standards. Cf. Younger, ‘‘Interrogation

of Criminal Defendants — Some Views on Miranda v Ari-

zona,”’ 35 Fordham L Rev 255 (1966): Note, ‘‘Interroga-

17

tions in New Haven: The Impact of Miranda,’’ 76 Yale

L J 1519 (1967); Griffiths & Ayres, ‘‘A Postscript to the

Miranda Project: Interrogation of Draft Protesters’? 77

Yale L J 300 (1967); Seeburger & Wettick, * Wiranda in

Pittsburgh — A Statistical Study,’’ 29 U Pitt L Rev 1

(1967) ; Medalie, Zeitz & Alexander, ‘Custodial Police In-

terrogation in Our Nation’s Capital: The Attempt'to Im-

plement Miranda,’’ 66 Mich L Rev 1347 (1968); MeCul-

lough, ‘‘Balancing the Rights of the Accused and the Pub-

lic in Constitutional Probity,’’ 54 ABAJ 273 (1968) ; Driv-

er, ‘‘Confessions and the Social Psychology of Coercion,”’

89 Harv L Rev 42 (1968) ; Zeitz, Medalie & Alexander, ‘‘ An-

omic, Powerlessness & Police Interrogation,’’ 60 J Cr L Cr

PS 314 (1969); Leiken, ‘‘Police Interrogation in Colora-

do,’ 47 Cenv L J 1 (1970). Respondent proffers as fur-

ther support of the absence of deleterious effects of the

Miranda requirements the accord voiced by Petitioner’s

neighboring Prosecuting Attorney, William A. Cahalan of

Wayne County, Michigan:

“It is my feeling, however, that the prescriptions

of the Miranda decision can be abided with by law en-

forcement officials without any great detriment to the

interrogation process. There are, of course, inevit-

ably, some cases that will have to be rejected until such

time as the law enforcement officers adjust to the new

rule and make their investigations correspond there-

with.

‘‘T am aware of Mr. Younger’s statement concerning

the Miranda decision and its effect on the cases in his

office, and I am in hearty accord with his appraisal of

that decision.’’ Marden & Silverstein, ‘‘The Growing

Importance of Criminal Law’’, 53 ABAJ 511, 913

FN 20 (1967). .,

It thus appears that-none of the horrors imagined by

the Miranda dissenters and Miranda critics have come to

pass. Experience now reveals that the Miranda require-

ments have not occasioned the mass release or acquittals

envisioned. 384 US at 542. Nor has Miranda significant-

ly altered the number of convictions. Rather, the Miranda

18

Warnings have become fully and effectively assimilated

into the daily practices of law enforcement officials and the

judicial system. There is clearly no basis for an assertion

that the Miranda standards have had a detrimental etfeet

upon the administration of justice.

B. The Miranda standards satisfy a legitimate and con.

tinuing concern for the integrity of custodial interro.-

gations.

Almost two hundred years ago, in Hawkins; Pleas of

the Crown, the frailty of the human mind during intense

questioning was recognized:

‘‘The human mind under the pressure of calamity,

_ is easily seduced; and is liable, in the alarm of dan-

ger, to acknowledge indiscriminately a falsehood or a

truth, as different agitations may prevail. A confes-

sion, therefore, whether made upon’ an official exami-

nation or in discourse with private persons, which is

obtained from a defendant, either by the flattery of

hope, or by the impressions of fear, however slightly

the emotions may be implanted, (vide, O.B. 1786, page

387), is not admissible evidence; for the law will not

suffer a prisoner to be made the deluded instrument

of his own conviction.’’ Pleas of the Crown, supra,

Section 3, Chapter 46.

A similar recognition prompted this Court in Miranda

to attempt to protect an individual’s Fifth Amendment

privilege against compulsory self-incrimination during

custodial interrogation.

‘*We have concluded that without proper safeguards

the process of in-custody interrogation of persons sus-

pected or accused of crime contains inherently com-

pelling.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.’’ 384 US

at 467.

Pe My ed , - Pines

ih FOV - LT ARN Ley bil Ne NE

.

19

As mentioned earlier, Petitioner’s challenge to Miranda

is essentially two pronged. He first attempts to verify his

claim that Miranda is restrictive and unfair; he then pro-

ceeds to claim that the remedy lies in reviving a test unem-

ployed by this Court in over ten years. IHaynes v Wash-

ington, 373 US 503, 83 S Ct 1336; 10 L Ed 2d 513 (1963).

Basically, Petitioner recommends readoption of the ‘‘to-

tality of the circumstances”’ test, with the presence or ab-

sence of warnings also considered, as the basis for admis-

sibility of confessions. Amicus for Respondent challenge

both the efficacy and the intellectual integrity of regressing

to such a standard.

Initially, the ‘‘totality of the circumstances’’ test is chal-

lenged on the basis that it is simply ineffective and unman-

ageable. Although accompanied by the full impact of embel-

lished due process language, that test requires (a) a show-

ing hy the undisputed facts, Sfroble v California, 343 US

181, 190, 72 S Ct 599; 96 L Ed 872 (1951), Haynes, supra,

373 US at 514; (b) that the aceused’s will was overborne at

the time he confessed, Haynes, supra, 373 US at 515; Ly-

numn v Illinois, 372 US 528, 534; 83 S Ct 917; 9 L Ed 2d

922 (1963): (ce) so that the confession cannot be deemed

- “the product of a rational intellect and a free will", Black- §

burn v Alabama, 361 US 199, 208; 80 S Ct 274; 4 L Ed 2d ;

242 (1960). Thus, the test compels a defendant to produce

undisputed facts from an incommunicado interrogation

conducted by an adverse party. Moreover, those facts must

reveal defendant’s will to have been overborne at the time

of his confession. These criteria hardly represent objective

demonstrable standards relating to the machinations and

effects of in-custody interrogations. Indeed, in light of

the post-Miranda commentaries and studies revealing the

subtle psychological and behavioralistiec influences utilized

in interrogations, (See, e.g., Foster, ‘Confessions and the

Station House Syndrome’’, 18 De Paul IL. Rev 683 (1969) ;

Cray, ‘‘Criminal Interrogations and Confessions: The

Ethical Imperative’’, 1968 Wis L Rev 173 (1968)), a return

to the ‘‘totality of the cireumstances’’ test would seem, at

best, grossly naive, and, at worst, palpably callous.

Equally objectionable in a return to the test is the im-

plicit authorization to law enforcement officials of ‘‘minor’’

Ba

20

violations of Constitutional rights. Any retrenchment of

the Miranda requirements suggests such violations in geo-

metric proportions. Opportunity for officers to impose in-

creasingly flagrant pressures to confess is ‘‘justified’’, ul-

timately, by the fact that a suspect’s guilt is clearly ex-

hibited by his confession. The circularity of such justifica-

tions is obvious and serves only to denigrate the integrity

of any attempt to determine voluntariness. ~~

Any regression to the pre-Miranda ‘‘totality’”’ test will

signify, clearly, a return to the concept that a trial, in con-

fession cases, represents only the appeal from interroga-

tion. “As such, the unaware, uninformed defendant finds

trial to be merely an official forum for the admission of the

dispositive confession. Perhaps the concept has been most

aptly described by Yale Kamisar:

‘*Police interrogators may now hurl ‘jolting ques-

tions’ where once they swung telephone books; may

now ‘play on the emotions’ where once they resorted

to physical violence, but it is no less true today than it

was thirty years ago that

‘{iJn every city our police hold what can only

be called outlaw tribunals, — informal and secret

inquisitions of arrested persons, — which are,

terminology aside, actual and very vigorous trials

for crime. ** Centering “all upon the confession,

proud of it, staking everything upon it, the major

canon of American police work is based upon the

nullification of the most truly libertarian clause

of the Fifth Amendment. * * * The legal courts

come into operation only after the police are

through; they are reduced to the position of mere-

ly ratifying the plea of guilt which the police

: have obtained, or else holding trials over the mi-

nor percentage of arrested persons about whom

the police could reach no conclusion. * * * The

inquisition held by the police before trial is the

outstanding feature of American criminal justice,

though no statute recognizes its existence.’

‘‘The courtroom is a splendid place where defense

attorneys bellow and strut and prosecuting attorneys

- a eee re

21

are hemmed in at many turns. But what happens be-

fore an accused reaches the safety and enjoys the com-

fort of this veritable mansion. Ah, there’s the rub.

Typically he must first pass through a much less pre-

tentious edifice, a police station with bare back rooms

and locked doors.

‘In this ‘gatehouse’ of American criminal proce-

dure — through which most defendants journey and

beyond which many never get — the enemy of the

state is a depersonalized ‘subject’ to be ‘sized up’ and

subjected to ‘interrogation tactics and techniques most

appropriate for ‘the occasion’; he is ‘game’ to be

stalked and cornered. Here, ideals are checked at the

door, ‘realities’ faced, and the prestige of law en-

forcement vindicated. Once he leaves the ‘gatehouse’

and enters the ‘mansion’ — if he ever gets there —

the enemy of the state is repersonalized, even digni-

fied, the public invited, and a stirring ceremony in hon-

or of individual freedom from law enforcement cele-

brated.’? Kamisar, Equal Justice in the Gatehouses

and Mansions of American Criminal Procedure, in

Criminal Justice in Our Time (1965), [Author’s cita-

tions omitted].

This Court explicitly recognized, in Miranda, the foree-

fulness of these arguments. In response, this Court cate-

gorically advised the Nation’s legal and law enforcement

communities that it found as a matter of law, in-custody

interrogations to be inherently coercive. 384 US at 467.

As a matter of Constitutional law this Court found confes-

sions emanating from such inherently coercive interroga-

tions to be violative of an accused’s privilege against com-

pulsory self-incrimination — unless accused was advised

of and properly waived certain Constitutional rights. 384

US at 467. Unless one is minimally informed of those Con-

stitutional rights which obtain at custodial interrogations

and unless those rights are knowingly waived prior to in-

terrogation, the coerciveness of the interrogational setting

threatens the voluntariness of any confession.

‘‘Gatehouse’”’ interrogations continue to play a major

role in law enforcement techniques. Cray, Criminal Inter-

22

rogations, supra. Miranda requirements serve to amelio-

rate the impact upon suspects of such interrogations and to

assure that ‘‘Ours is the accusatorial as opposed to the

inquisitorial system.’’ Watts v Indiana, 388 US 49, 54; 68

S Ct 1347; 93 L Ed 1801 (1949). Miranda warnings thus -

represent a minimum effort on the part of our system of

justice to shield suspects from coercive interrogations,

The warnings have become fully ingrained upon the rubric

of law enforcement functions and serve to impute a mea-

sure of integrity to ‘‘Gatehouse’’ interrogations. Miranda

safeguards and encourages the exercise of individual Con-

stitutional rights without significant deleterious effects

upon law enforcement. officials or the administration of

justice. Abandonment of these safeguards would have no —

basis either in logic or precedent. Miranda v Arizona

should be retained in its entirety.

III. Federal Habeas Corpus is an appropriate forum for

reviewing alleged violations of petitioner’s Fifth Amendment

Rights.

The California Attorney General’s Office, in its Amicus

Curiae in support of Petitioner, has alleged that Federal

Habeas Corpus is not an appropriate method of reviewing

Miranda violations occurring in state court criminal pro-

ceedings.! In view of the ramifications of such a conten-

tion, the exfensive commentary and scholarly writing on

the topic of the proper scope of Federal Habeas Corpus

jurisdiction and this Court’s discussion of the subject, per

Justice Powell’s concurring opinion in Schneckloth v Bus-

tamonte, 36 L Ed 2d 854; 412 US 218; 93 S Ct 2041 (1973),

a response to the California Attorney General’s brief and

a more thorough discussion of the contention should assist

this court in its consideration of the issue.

1 See Issue II. “Federal Habeas Corpus should not be permitted to Review Final State

Court Criminal Convictions Based on Alleged Violations of Miranda vy Arizona, 384 US

436, supra, or Wong Sun v United States (citation omitted).” pages 10-15

BBE ah oe : . 8 ROR A AR TE RR ae OR NaN REARS So,

23

A. Federal Habeas Corpus is an important vehicle in

protecting the individual against intolerable Govern- |

ment illegality, and review of alleged Miranda viola-

tions occurring in State Proceedings is one effective

way to insure that protection.

In his concurring opinion in Schneckloth v Bustamonte,

412 US 218; 36 L Ed 2d 854; 93 S Ct 2041 (1973), Justice

Powell began his analysis of federal habeas corpus review

with an historical review of the limits of common law ha-

beas corpus. Stating that ‘‘much of the present percep-

tion of habeas corpus stems from a revisionist view of the

historic function that the writ was meant to perform,”’

Schneckloth, supra, at 877, and relying heavily on Profes-

sor Oaks’ article,2 Mr. Justice Powell demonstrated how

several crucial opinions of the United States Supreme

Court during the last quarter century were based in part

upon incorrect historical assumptions regarding the writ.

Recent scholarly writings certainly buttress Justice Pow-

ell’s historical position.s Yet whether or not .a justifica-

tion for a broad scope of federal habeas corpus collateral

review can be found in the common law is a question of min-

imal import to the discussion. Even Professor Oaks, whose

article is heavily relied upon in Justice Powell’s opinion,

concedes that the scope of the English common law writ

of habeas corpus should have little effect on a discussion

regarding the proper purview of modern federal habeas

jurisdiction.

‘‘The purpose of the foregoing discussion is not to

argue that the Supreme Court reached the wrong de-

cision in Townsend. Its conclusion that a federal dis-

trict court, when disposing of a habeas corpus appltca-

2 Oaks, “Legal History in the High Court —- Habeas Corpus” 61 Mich Law Rev 451

(1966).

3 See Oaks, supra, Footnote 3; “Developments in the Law: Federal Habeas Corpus” 83

Harvard L Rev 1038 (1970); Bater, ‘“Finality in Criminal Law and Federal Habeas Cor-

pus for State Prisoners,” 76 Harvard L Rev 441 (1963).

24

tion, has the power and sometimes the duty to hold a

trial de novo on factual questions already determined in

a state court may be a sound decision for our time.

‘<The limited point urged here is that when the Court

asserted that the 1867 act restored rather than extended

the powers of the habeas judge, its assertion was plain-

ly at variance with the facts of history.’’ Oaks, ‘‘ Legal

History in the High Court — Habeas Corpus’’, 64 Mich

Law Review 451, 457 (1966).

Indeed, the whole thrust of Professor Oaks’ position, as

well as that of other scholars discussing the relationship of

modern federal habeas corpus jurisdiction to that of the

common law, is simply to conclude that the use of habeas

corpus as a post-conviction remedy is a relatively recent

phenomenon should be examined in that context without

‘claiming support from a supposed showing that its conclu-

sion really was dictated by — or at least that it restored

— the durable content of the ancient law.’’ Oaks, supra at

458.4 This proposition applies to those who would limit, as

well as those who wish to sustain the broad scope of federal

habeas corpus review.

The real issue then, is whether a review of the policy con-

sideration at play justify such broad powers of review as

now exist under federal habeas corpus.

4 The limitation of an “historical” approach to federal habeas corpus jurisdiction is il-

lustrated by the fact that the often cited Habeas Corpus Act of 1679, passed by the Eng-

lish Parliament, excluded from its coverage persons who were confined as a result of a

criminal conviction. This left criminal prisoners to resort to habeas corpus at ‘common

law”! (See W. Church, A Treatise on the Writ of Habeas Corpus, 31 (2nd ed 1893);

Developments in the Law, supra, Footnote 3, at 1044-1045). The common law writ of

habeas corpus pertaining to criminal convictions in 1679 was developed by the close of

the 1500’s and called “habeas corpus ad subjiciendum.” “Developments in the Law”, supra,

footnote 3 at 1043. Thus, a “common law” approach to the proper scope of habeas cor-

pus in criminal cases would rest off either (a) the development of the Habeas Corpus Act

of 1679 to the present, or, (b) the writ of habeas corpus ad subjiciendum as it was used

in England during the 1500's and 1600's. Such an approach would be as unenlightening

as it is absurb.

ee ee ee

Mies

25

1. Federal Habeas Corpus jurisdiction should not be

limited to those cases presenting a “Colorable

Claim of Innocence”, since the principal function

of Federal Habeas Corpus is to serve as a dis-

passionate review of Constitutional Claims, and

not retry factual issues.

It has been suggested recently that federal habeas corpus

review might be limited only to petitions presenting color-

able claims of innocence.’ Indeed, this proposition is at the

very core of Justice Powell’s concurrence in Schneckloth v

Bustamonte, supra at 890:

‘Indeed, it is difficult to explain why a system of

criminal justice deserves respect which allows repeti-

tive reviews of convictions long since held to have been

final at the end of the normal process of trial and ap-

peal where the basis for re-examination is not even

that the convicted defendant was innocent.’’

The Amicus Curiae Brief of the California Attorney Gen-

eral supports this concept as well, articulating as one of the

reasons for a limitation on federal habeas review the fact

that ‘‘[t]he guilt or innocence of the defendant or respond-

ent is not in doubt.’’ Though the latter quote is clearly an

overstatement, and would be more correct if it stated that

the guilt or innocence of a petitioner is rarely in issue, the

proposition (especially as set out by Justice Powell) merits

close scrutiny. It is interesting that in developing the prop-

osition, none of the commentators (or for that matter

Justice Powell) contends that the function of federal ha-

beas review should be to retry the petitioner. Indeed, were

this to be at the heart of the ‘‘colorable claim of right”’’

theory, the solution would create more problems than it

could solve. Were the function of federal habeas corpus to

retry the petitioner, then the Federal government and the

state’s interest in finality of a conviction, the integrity of

5 See for example Friendly, “Is Innocence Irrelevant? Collateral Attack on Criminal

Judgments.” 38 U Chi L Rev 142 (1970).

oo

26

the state court system and the effective utilization of lim-

ited judicial resources would be destroyed. Thus, though

an initial reaction to the ‘‘colorable claim of innocence"

theory may be that it would tend to further the state’s in-

terest in enforcement of substantive state criminal law, it

would in the long run create an unjustifiable intrusion into

the state’s judicial power.

In fact it appears that the converse of Justice Powell's

proposition appears true. Federal habeas corpus is a use-

ful and necessary vehicle in the protection of a petitioner’s

constitutional rights precisely because it constitutes a dis-

passionate review of a state trial court’s application of con-

stitutional standards.

‘‘(E]xpanded use of the writ is responsive to insti-

tutional need for a separate proceeding — one iisul-

ated from inquiry into the guilt or innocence of the de-

fendant and designed specifically to protect constitu-

tional rights. The momentum of the trial process and

the trial judge’s focus upon the central issue of the

accused’s guilt or innocence may tend to divert atten-

tion from ancillary questions relating to constitutional

guarantees.’’ ‘‘Developments in the Law — Federal

Habeas Corpus.’’ 83 Harvard I. Rev 1038, 1056

(1970).

In summary, the very strength of federal habeas corpus

review may well be the fact that it functions one step re-

moved from the question of guilt or innocence. It is not

being asserted here that the federal courts are not inter-

ested in the facts of a criminal case on federal habeas re-

view. Rather, it is contended that the federal courts should

be concerned with the factual setting only in reviewing

whether the state court correctly applied the constitutional

standard in issue to the facts. It is this delicate differen-

tiation between the trial court’s function and the collateral

function of federal habeas corpus review that is at once the

strength of federal habeas review as well as the source of

confusion. To intimate that the process should be inter-

twined with the function attributed to the finder of fact

(i.e. guilt vs innocence) is to misunderstand the instifu-

tional structures involved. As suggested by several! com-

27

mentators,® once a policy decision is made that a state crim-

inal defendant is to be given the full benefit of the bill of

rights through the 14th Amendment, then enforcement of

those constitutional rights via a collateral federal proceed-

ing need not affect the state’s interest in enforcing its sub-

stantive criminal law any more than if the defendant’s con-

stitutional rights had been observed at trial.

2. Collateral Review of State Criminal Cases through

Federal Habeas Corpus serves a necessary purpose

which can best be understood by viewing the State

and Federal Court Systems as fulfilling distinct

institutional objectives.

Given the conceptual, or institutional, distinctions made

in the foregoing argument, it isapparent that one crucial

question is left unanswered That is, if ‘‘institutional’’

factors justify, if not require, a ‘‘dispassionate’’ review

of state trial court proceedings, why then should that re-

view take place atthe federal level, rather than via state

collateral attack? This issue is raised, somewhat tangen-

tially, inthe California Attorney General’s amicus brief at

sae. where it is noted that:

‘‘A repetition of hearings in Federal Courts in

instances where a respondent has had a full and fair

state hearing is a useless expenditure of judicial time,

personnel, prosecutors and defense counsel. The en-

couraging of collateral attack frustrates the deterrent

effect of the law and the effectiveness of rehabilita-

tion. There is an undue subordination of state courts

to lower federal courts with the resulting exacerba-

tion of federal — state relationships and the doctrine

of federalism is itself eroded.’’

The answer to such an attack lies within the concept set

forth earlier regarding a difference in the ‘‘institutional

6 See Schaefer, “Federalism and State Criminal Procedure.” 70 Harv L Rev 1, 22

(1956); Developments in the Law, supra, footnote 3 at 1058-1059.

Vata

28

setting’ of state courts and federal courts exercizing

habeas corpus jurisdiction. State courts will most likely

be inclined, in passing upon issues of constitutional sienif-

icance, to heavily reflect a penchant for punishing the

guilty and ensuring that their constituency (if the judges

are elected) is protected by the incarceration of the de-

fendant. That is, the primary goal is the enforcement of

the state’s substantive criminal law. Thus, the state courts

may tend to subordinate the individual’s right to protec.

tion from improper state action to the goal of conviction!

The federal courts however, have a primary allegiance to

the constitution and, precisely because they are removed

from the proximity of the enforcement of state law they

ean effectively undertake an objective second look at the

state’s application of the constitution to the factual setting.

This point leads to a related consideration. The enforce-

ment of constitutional principles via federal habeas re-

view makes possible a more uniform application of those

principles for all state criminal defendants. The United

States Supreme Court’s power to review constitutional

issues directly from a decision by the state’s highest forum

is limited in practicality by the sheer number of cases

decided in the fifty (50) states. Thus, federal habeas

review may act as a buffer in alleviating the burden on the

United States Supreme Court and ensuring a relatively

coherent and consistent. application of federal. constitu-

tional law.

Thirdly, the state’s interest in promoting finality in

criminal litigation (and presumably progressing with the

individual’s rehabilitation) is no answer to the question.

Certainly costs cannot be used to justify any limitation

on the individual’s vindication, via collateral review, of a

constitutional claim. We would do well to remember

Justice Stone’s oft quoted words:

7 This phrase is introduced and used at length in “Developments in the Law’’, supra,

footnote 3. For a fuller discussion of this concept, see pp. 1045-1063 of that article.

8. See Amsterdam, “Criminal Prosecutions Affecting Federally Guaranteed Civil Rights:

Federal Removal and Habeas Corpus Jurisdiction to Abort State Trial Court,” 113 U Pa

L Rev 793, (1965); and “Developments in this Law,” supra, footnote 3 at 1060-1061.

RO AONE Poe , ot Win 6 De

29

‘‘There are many rights and immunities secured

by the constitution . . . which are not capable of

money valuation .. .’’ Hague v Cio, 307 US 496, 529

(1939).

- Yet in spite of such a universally accepted principle as

that stated by Justice Stone, the problem of the adminis-

trative burden of federal habeas corpus applications and

resulting costs continue to rear their heads when the sub-

ject of the scope of federal habeas jurisdiction is in issue.?

However, aside from citing the raw statistical increase in

the number of habeas corpus petitions filed in federal

courts in recent years, few advocates of more limited

habeas jurisdictions make any further evaluation of the

problem. At least two recent studies tend to support a

conclusion that federal habeas petitions do not constitute

a severe financial and administrative burden. One such

study undertook a detailed analysis of federal habeas

corpus petitions filed in Massachusetts in fiscal years

1970, 1971 and 1972.0 That study suggests that over

half of the cases are easily disposed of in summary dis-

missals or dismissal for failure to exhaust state remedies."

Further, the use of magistrates has been one relatively

effective and relatively economical way to deal with the

remaining cases, though the author concedes the present

system requires modification and improvement.!2

A second study, buttresses the conclusion that the in-

crease in habeas petitions has not resulted in an unmanage-

able burden on the federal district courts. Government

statistics!3 were analyzed in a Harvard Law Review article,

the conclusion most likely being a surprise to some:

‘‘The result, of course, has been a vast increase in”

the number of habeas corpus petitions. In 1968, over

‘

9 See Justice Powell’s opinion in Schneckloth, supra, at 882;. Friendly, supra, footnote

5; California Attorney General’s Amicus Brief, at 13.

10 Shapiro, ‘Federal Habeas Corpus: A Study in Massachusetts” 83 Harv L Rev 321

(1973).

11 Ibid, pp 333-335, Table IV and Table A.

12 Ibid, pp 361-367.

13 Director of the Administrative Office of The United States Courts, Annual Report

130 (1968).

Lee

30

6,300 petitions were filed in federal district courts by

state prisoners. This was an increase of 286 percent

in just five years. Yet it 1s all too easy to overstate the

strain that an expanded habeas jurisdiction and ex-

panded federal constitutional rights put on the judi-

cial system. Most of the petitions were quickly dis-

missed: less than 500 reached the hearing stage. and

most of those hearings lasted less than one day. Nor

was the burden on the states staggering: many peti-

tions do not even require a response; less than ten per-

cent of the state convictions attacked had to be de-

fended at a hearing, and so few prisoners were re-

leased that the burden of re-trial must be small.’’ ‘‘De-

velopments in the Law,’’ footnote 3, supra, at 1041,

(Emphasis added).

A fourth consideration often cited in support of limiting

federal habeas corpus jurisdiction is the ‘‘friction”’

created by this concurrent jurisdiction, or, stated otherwise,

the interest of the state courts in preserving their integrity

and autonomy. One answer to this point should be appar-

ent from the foregoing discussion — that is that necessity

for federal habeas review is the culmination of institu-

tional rather than personal factors. Yet another answer

is apparent, and that is that though ‘‘friction’’ between the

institutions is potentially a problem,)5 the federal courts

take pains to prevent it. The federal habeas statutes, and

most importantly 28 U.S.C. §2254, contain a very effective

mechanism which helps to enforce the state’s interest in

_ preserving its own judicial integrity and autonomy. It is

clear that a federal court will not entertain a federal ha-

beas petition unless ‘‘it appears that the applicant has ex-

hausted the remedies available in the courts of the State.’’

28 U.S.C. §2254(b). This ‘‘remedy”’ of effectively remand-

14 See Schneckloth y Bustamonte. supra, opinion by Mr. Justice Powell at 881, 884, 890-

891; Friendly, supra, footnote 5.

15 It is somewhat difficult to understand why proponents of this position do not also

recognize that the same factors would appear to apply to direct review by the United

States Supreme Court of State proceedings.

31

ing the cause to the state courts is consistently used and as

suggested by one very recent study,!6 may be the most com-

mon method of disposing of federal habeas petitions, ac-

counting for over fifty percent (50%) of all federal habeas

dispositions in Massachusetts from 1970 to 1972. There-

fore, it would appear that the federal courts not only re-

spect the autonomy and integrity of the state judicial sys-

tems, but perhaps too often ‘‘remand’’ a case to the state

courts without looking at it on its merits, in deference to

state autonomy at the expense of the defendant.

Such extreme deference may well be ill founded. Al-

though there may exist a presumption of regularity in state

proceedings, Professor Reitz’ study in 1960 of thirty-five

(35) suecessful federal habeas corpus applications docu-

mented state court abuses in treatment of even the most

meritorious cases.!? .

Such abuses, while not necessarily being a strong argu-

ment per se in opposition to the doctrine of state exhaus-

tion, certainly constitute very persuasive authority for

demonstrating the necessity of federal habeas corpus re-

lief for state prisoners.

It appears that all of the objections to expanded federal

habeas corpus review then, are not as strong as they ap-

pear at first glance. The state’s interest in the enforce-

ment of its substantive law, autonomy, and finality in the

criminal process all are legitimate considerations. How-

ever, such considerations must be weighed in light of the

(necessarily) different emphasis of interests regarding

state court -vs- federal habeas corpus jurisdiction, the ex-

pansion of constitutional safeguards in the last quarter cen-

tury, the need for a greater uniformity in the application

of federal constitutional law in state criminal procedure,

and the relatively minimal cost considerations and adminis-

trative inconvenience resulting from increased federal ha-

beas corpus applications. When balanced, the state inter-

ests are not defeated, and, where subordinated, are done so

16 See Shapiro, supra, footnote 10 at 333-335:

17 Reitz, “Federal Habeas Corpus: Postconviction Remedy for State Prisoners,” 180 U

Pa L Rev 461 (1960).

ae

Horta?

32

as a result of a proper balancing of different institutional

positions of the state and federal courts.

In a most cogent statement, one commentator pointed

out that ‘‘[m]uch of the objection to federal habeas may

be, at bottom, simply disagreement with constitutional de.

cisions that expend a criminal defendant’s procedural

rights.’’!8

B. Even if this Court should limit Federal Habeas Cor.

pus review in relation to appeals based on Fourth

Amendment exclusionary case as suggested by Jus.

tice Powell in Schneckloth, no such limitation should

apply to review of Miranda issues since the same fac-

tors do not apply to Federal Collateral Review of

Fifth Amendment Issues.

The California Attorney General, in his amicus brief,

notes that Justice Powell has proposed that federal habeas

corpus review be limited when issues raised focus on search

and seizure questions. This statement is certainly a fair

representation of Justice Powell’s proposal in his concur-

ring opinion in Schneckloth v Bustamonte, supra, at 876-

891. However, issue must be taken with the Attorney Gen-

eral’s conclusion at page 11 that ‘‘The same reasoning is

applicable to review of Miranda contentions ...’’ Indeed,

not only does the conclusion constitute a quantum jump in

its reasoning, but it is a conclusion that the majority of the

court rejected in Schneckloth. The opinion of the court, de-

livered by Mr. Justice Stewart, took care to point out:

‘The considerations that informed the Court’s hold- ”

ing in Miranda are simply inapplicable in the present

[4th Amendment] case. In Miranda the court found

that the techniques of police questioning and the na-

ture of custodial surroundings produce an inherently

coercive situation. The Court concluded that ‘[u]n-

less adequate protective devices are employed to dis-

18 “Developments in the Law”, supra, footnote 3 at 1042.

—

33

pel the compulsory inherent in custodial surroundings,

no statement obtained from the defendant can truely

be the product of his free choice. [citations omitted]’ ’’ |

Schneckloth, supra, at 36 L Ed 2d 874.

The thrust of the Schneckloth opinion is that the question

involved, i.e. ‘‘voluntariness’’ as applied to the Fourth

Amendment Search situation, is ‘‘immeasurably far re- ,

moved from ‘custodial interrogation.’ ’’ Schneckloth, suv

pra at 865. While the Fourth Amendment is viewed as

having a prophylactic effect in relation to the limits of state

sanctioned police conduct, the Fifth Amendment goes to

the very core of insuring the fairness of the defendant’s

trial. For this reason, the argument (whether correct or

not) that federal collateral review of Fourth Amendment

claims serves no deterrent function!? is inapplicable to the

Fifth Amendment. As brought out by Mr. Justice Stew-

art, the protections of the Fifth Amendment go to the very

reliability of the truth — determining process and the fair-

ness of the trial itself, while

‘‘[t]he protections of the Fourth Amendment are

of a wholly different order, and have nothing whatever

to do with promoting the fair ascertainment of truth

at a criminal trial. Rather, as Mr. Justice Frankfur-

ter’s opinion for the Court put it in Wolf v Colorado,

338 US 25, 27; 93 L Ed 1782; 69 S Ct 1359, the Fourth

Amendment protects the ‘security of one’s privacy

against intrusion by the police’’’... Schneckloth,

supra at 36 L Ed 2d 871.

Therefore, while the Fifth Amendment guarantees go to

the very integrity of the fact finding process, and may well

determine the fairness of the trial, the Fourth Amendment

stands ‘‘as a protection of quite different constitutional

values’’ rarely touching upon the fairness of a trial, but

rather expressing ‘‘the concern of our society for the right

of each individual to be let alone.’’ See Tehan v United

19 See for example Mr. Justice Powell’s discussion of this point in Schneckloth, supra,

at 887.

34

States ex rel Schott, 382 US 406, 416; 15 L Ed 2d 453; 96

S Ct 459.

In sum, the considerations which informed the court’s

holding in the [Fifth Amendment] Miranda decision were

conceded to be ‘‘inapplicable’’ to the Schneckloth discus-

sion of ‘‘voluntariness’’ and ‘‘consent’’ as applied to the

Fourth Amendment. It follows that those same considera-

tions, when used in support of limiting federal habeas cor-

pus Fourth Amendment review are inapplicable to any lim-

itation on Fifth Amendment collateral review.

CONCLUSION

In light of the reasons set forth herein, amicus curiae

respectfully request that the decision in this cause of the

United States Court of Appeals, Sixth Circuit, be affirmed,

and that the Respondent’s conviction be reversed.

Respectfully submitted,

Dennis H. Benson, Ese.

Sreven L. Scuwarrz, Esa.

Rocrer L. Worta, Esa.

Co-counsel, Civil Liberties Committee,

State Bar of Michigan