|Rhode Island v. Innis
[ Stewart ]
[ White ]
[ Burger ]
[ Marshall ]
[ Stevens ]
Rhode Island v. Innis
CERTIORARI TO THE SUPREME COURT OF RHODE ISLAND
MR JUSTICE STEVENS, dissenting.
An original definition of an old term coupled with an original finding of fact on a cold record makes it possible for this Court to vacate the judgment of the Supreme Court of Rhode Island. That court, on the basis of the facts in the record before it, concluded that members of the Providence, R.I., police force had interrogated respondent, who was clearly in custody at the time, in the absence of counsel after he had requested counsel. In my opinion, the state court's conclusion that there was interrogation rests on a proper interpretation of both the facts and the law; thus, its determination that the products of the interrogation were inadmissible at trial should be affirmed.
The undisputed facts can be briefly summarized. Based on information that respondent, armed with a sawed-off shotgun, had just robbed a cab driver in the vicinity of Rhode Island College, a number of Providence police officers began a thorough search of the area in the early morning of January 17, 1975. One of them arrested respondent without any difficulty at about 4:30 a.m. Respondent did not then have the shotgun in his possession, and presumably had abandoned it, or hidden it, shortly before he was arrested. Within a few minutes, at least a dozen officers were on the scene. App. 37. It is fair to infer that an immediate search for the missing weapon was a matter of primary importance.
When a police captain arrived, he repeated the Miranda warnings that a patrolman and a sergeant had already given to respondent, and respondent said he wanted an attorney. The captain then ordered two officers who were assigned to [p308] a "caged wagon" to transport respondent to the central station, and ordered a third officer to ride in the back seat with respondent. While the wagon was en route to the station, one of the officers, Officer Gleckman, stated that there was a school for handicapped children in the vicinity and, "God forbid," one of them should find the shotgun and hurt herself. [n1] As a result of this statement, respondent told the officers that he was willing to show them where the gun was hidden. [n2] The wagon returned to the scene, and respondent helped the officers locate the gun.
After a suppression hearing, the trial court assumed, without deciding, that Officer Gleckman's statement constituted interrogation. The court nevertheless allowed the shotgun and testimony concerning respondent's connection to it into evidence on the ground that respondent had waived his Miranda rights when he consented to help police locate the gun. On appeal from respondent's conviction for kidnaping, robbery and murder, the Rhode Island Supreme Court held that Officer Gleckman's statement constituted impermissible interrogation, and rejected the trial court's waiver analysis. It therefore reversed respondent's conviction and remanded for a new trial. Today, the Court reverses the Rhode Island court's resolution of the interrogation issue, creating a new definition of that term and holding, as a matter of law, that the statement at issue in this case did not constitute interrogation. [p309]
As the Court recognizes, Miranda v. Arizona, 384 U.S. 436, makes it clear that, once respondent requested an attorney, he had an absolute right to have any type of interrogation cease until an attorney was present. [n3] As it also recognizes, Miranda requires that the term "interrogation" be broadly construed to include "either express questioning or its functional equivalent." Ante at 300-301. [n4] In my view, any statement that would normally be understood by the average listener as calling for a response is the functional equivalent of a direct question, whether or not it is punctuated by a question mark. The Court, however, takes a much narrower view. It holds that police conduct is not the "functional equivalent" of direct questioning unless the police should have known that what they were saying or doing was likely to elicit an incriminating response from the suspect. [n5] This holding represents a plain departure from the principles set forth in Miranda. [p310]
In Miranda, the Court required the now-familiar warnings to be given to suspects prior to custodial interrogation in order to dispel the atmosphere of coercion that necessarily accompanies such interrogations. In order to perform that function effectively, the warnings must be viewed by both the police and the suspect as a correct and binding statement of their respective rights. [n6] Thus, if, after being told that he has a right to have an attorney present during interrogation, a suspect chooses to cut off questioning until counsel can be obtained, his choice must be "scrupulously honored" by the police. See Michigan v. Mosley, 423 U.S. 96, 104; id. at 110, n. 2 (WHITE, J., concurring in result). At the least, this must mean that the police are prohibited from making deliberate attempts to elicit statements from the suspect. [n7] Yet the Court is unwilling to characterize all such attempts as "interrogation," noting only that,
where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police [p311] should have known was reasonably likely to have that effect. [n8]
Ante at 302, n. 7.
From the suspect's point of view, the effectiveness of the warnings depends on whether it appears that the police are scrupulously honoring his rights. Apparent attempts to elicit information from a suspect after he has invoked his right to cut off questioning necessarily demean that right and tend to reinstate the imbalance between police and suspect that the Miranda warnings are designed to correct. [n9] Thus, if the rationale for requiring those warnings in the first place is to be respected, any police conduct or statements that would appear to a reasonable person in the suspect's position to call for a response must be considered "interrogation." [n10]
In short, in order to give full protection to a suspect's right to be free from any interrogation at all, the definition of "interrogation" must include any police statement or conduct that has the same purpose or effect as a direct question. Statements that appear to call for a response from the suspect, as well as those that are designed to do so, should be considered interrogation. By prohibiting only those relatively few statements or actions that a police officer should know are likely to elicit an incriminating response, the Court today accords a suspect [p312] considerably less protection. Indeed, since I suppose most suspects are unlikely to incriminate themselves even when questioned directly, this new definition will almost certainly exclude every statement that is not punctuated with a question mark from the concept of "interrogation." [n11]
The difference between the approach required by a faithful adherence to Miranda and the stinted test applied by the Court today can be illustrated by comparing three different ways in which Officer Gleckman could have communicated his fears about the possible dangers posed by the shotgun to handicapped children. He could have:
(1) directly asked Innis:
Will you please tell me where the shotgun is so we can protect handicapped schoolchildren from danger?
(2) announced to the other officers in the wagon:
If the man sitting in the back seat with me should decide to tell us where the gun is, we can protect handicapped children from danger.
or (3) stated to the other officers:
It would be too bad if a little handicapped girl would pick up the gun that this man left in the area, and maybe kill herself.
In my opinion, all three of these statements should be considered interrogation, because all three appear to be designed to elicit a response from anyone who in fact knew where the gun was located. [n12] Under the Court's test, on the other hand, [p313] the form of the statements would be critical. The third statement would not be interrogation because in the Court's view there was no reason for Officer Gleckman to believe that Innis was susceptible to this type of an implied appeal, ante at 302; therefore, the statement would not be reasonably likely to elicit an incriminating response. Assuming that this is true, see infra at 314-315, then it seems to me that the first two statements, which would be just as unlikely to elicit such a response, should also not be considered interrogation. But because the first statement is clearly an express question, it would be considered interrogation under the Court's test. The second statement, although just as clearly a deliberate appeal to Innis to reveal the location of the gun, would presumably not be interrogation because (a) it was not in form a direct question, and (b) it does not fit within the "reasonably likely to elicit an incriminating response" category that applies to indirect interrogation.
As this example illustrates, the Court's test creates an incentive for police to ignore a suspect's invocation of his rights in order to make continued attempts to extract information from him. If a suspect does not appear to be susceptible to a particular type of psychological pressure, [n13] the police are apparently free to exert that pressure on him despite his request for counsel, so long as they are careful not to punctuate their statements with question marks. And if, contrary to all reasonable expectations, the suspect makes an [p314] incriminating statement, that statement can be used against him at trial. The Court thus turns Miranda's unequivocal rule against any interrogation at all into a trap in which unwary suspects may be caught by police deception.
Even if the Court's new definition of the term "interrogation" provided a proper standard for deciding this case, I find it remarkable that the Court should undertake the initial task of applying its new standard to the facts of the present case. As noted above, the trial judge did not decide whether Officer Gleckman had interrogated respondent. Assuming, arguendo, that he had, the judge concluded that respondent had waived his request for counsel by offering to help find the gun. The Rhode Island Supreme Court disagreed on the waiver questions, [n14] and expressly concluded that interrogation had occurred. Even if the Rhode Island court might have reached a different conclusion under the Court's new definition, I do not believe we should exclude it from participating in a review of the actions taken by the Providence police. Indeed, given the creation of a new standard of decision at this stage of the litigation, the proper procedure would be to remand to the trial court for findings on the basis of evidence directed at the new standard.
In any event, I think the Court is clearly wrong in holding, as a matter of law, that Officer Gleckman should not have realized that his statement was likely to elicit an incriminating [p315] response. The Court implicitly assumes that, at least in the absence of a lengthy harangue, a criminal suspect will not be likely to respond to indirect appeals to his humanitarian impulses. It then goes on to state that the officers in this case had no reason to believe that respondent would be unusually susceptible to such appeals. Ante at 302. Finally, although the significance of the officer's intentions is not clear under its objective test, the Court states in a footnote that the record "in no way suggests" that Officer Gleckman's remarks were designed to elicit a response. Ante at 303, n. 9.
The Court's assumption that criminal suspects are not susceptible to appeals to conscience is directly contrary to the teachings of police interrogation manuals, which recommend appealing to a suspect's sense of morality as a standard and often successful interrogation technique. [n15] Surely the practical experience embodied in such manuals should not be ignored in a case such as this, in which the record is devoid of any evidence -- one way or the other -- as to the susceptibility of suspects in general or of Innis in particular.
Moreover, there is evidence in the record to support the view that Officer Gleckman's statement was intended to elicit a response from Innis. Officer Gleckman, who was not regularly assigned to the caged wagon, was directed by a police captain to ride with respondent to the police station. Although there is a dispute in the testimony, it appears that Gleckman may well have been riding in the back seat with Innis. [n16] The record does not explain why, notwithstanding [p316] the fact that respondent was handcuffed, unarmed, and had offered no resistance when arrested by an officer acting alone, the captain ordered Officer Gleckman to ride with respondent. [n17] It is not inconceivable that two professionally trained police officers concluded that a few well chosen remarks might induce respondent to disclose the whereabouts of the shotgun. [n18] This conclusion becomes even more plausible in light of the emotionally charged words chosen by Officer Gleckman ("God forbid" that a "little girl" should find the gun and hurt herself). [n19]
Under my view of the correct standard, the judgment of the Rhode Island Supreme Court should be affirmed because the [p317] statements made within Innis' hearing were as likely to elicit a response as a direct question. However, even if I were to agree with the Court's much narrower standard, I would disagree with its disposition of this particular case, because the Rhode Island courts should be given an opportunity to apply the new standard to the facts of this case.
1. Although the testimony is not entirely clear as to the exact wording of Officer Gleckman's statement, it appears that he talked about the possible danger being to a little girl. App. 59.
2. After he returned to the scene, respondent told the police captain that he wanted to help them locate the shotgun because he "wanted to get the gun out of the way because of the kids in the area in the school." Id. at 39. Given the timing of respondent's statement and the absence of any evidence that he knew about the school prior to Officer Gleckman's statement, it is clear that respondent's statement was the direct product of the conversation in the police wagon.
3. Ante at 293, 297-298. In Miranda, the Court explicitly stated: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 474.
4. As the Court points out, ante at 299, the Court in Miranda was acutely aware of the fact that police interrogation techniques are not limited to direct questioning.
That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Ante at 301.
In limiting its test to police statements "likely to elicit an incriminating response," the Court confuses the scope of the exclusionary rule with the definition of "interrogation." Of course, any incriminating statement as defined in Miranda, quoted ante at 301, n. 5, must be excluded from evidence if it is the product of impermissible interrogation. But I fail to see how this rule helps in deciding whether a particular statement or tactic constitutes "interrogation." After all, Miranda protects a suspect in Innis' position not simply from interrogation that is likely to be successful, but from any interrogation at all.
We have concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored.
384 U.S. at 467.
7. In Brewer v. Williams, 430 U.S. 387, 398 399, the Court applied the "deliberately elicited" standard in determining that statements were extracted from Williams in violation of his Sixth Amendment right to counsel. Although this case involves Fifth Amendment rights and the Miranda rules designed to safeguard those rights, respondent's invocation of his right to counsel makes the two cases indistinguishable. In both cases the police had an unqualified obligation to refrain from trying to elicit a response from the suspect in the absence of his attorney. See Kamisar, Brewer v. Williams, Massiah and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 73 (1978).
8. This factual assumption is extremely dubious. I would assume that police often interrogate suspects without any reason to believe that their efforts are likely to be successful, in the hope that a statement will nevertheless be forthcoming.
9. See White, Police Trickery in Inducing Confessions, 127 U.Pa.L.Rev. 581, 609-611 (1979). As MR. JUSTICE WHITE pointed out in his opinion concurring in the result in Michigan v. Mosley, 423 U.S. 96, when a suspect invokes his right to an attorney, he is expressing "his own view that he is not competent to deal with the authorities without legal advice." Id. at 110, n. 2. Under these circumstances, continued interrogation is likely to produce the same type of coercive atmosphere that the Miranda warnings are supposed to dispel.
10. I would use an objective standard both to avoid the difficulties of proof inherent in a subjective standard and to give police adequate guidance in their dealings with suspects who have requested counsel.
11. The Court's suggestion, ante at 301, n. 6, that I totally misapprehend the import of its definition is belied by its application of the new standard to the facts of this case.
12. See White, Rhode Island v. Innis: The Significance of a Suspect's Assertion of His Right to Counsel, 17 Am.Crim.L.Rev. 53, 68 (1979), where the author proposes the same test and applies it to the facts of this case, stating:
Under the proposed objective standard, the result is obvious. Since the conversation indicates a strong desire to know the location of the shotgun, any person with knowledge of the weapon's location would be likely to believe that the officers wanted him to disclose its location. Thus, a reasonable person in Innis's position would believe that the officers were seeking to solicit precisely the type of response that was given.
13. As THE CHIEF JUSTICE points out in his concurring opinion, "[f]ew, if any, police officers are competent to make the kind of evaluation seemingly contemplated [by the Court's opinion]" except by close and careful observation. Ante at 304. Under these circumstances, courts might well find themselves deferring to what appeared to be good faith judgments on the part of the police.
14. Like the Rhode Island Supreme Court, I think it takes more than a prisoner's answer to a question to waive his right not to have the question asked in the first place. See Brewer v. Williams, 430 U.S. at 404; Michigan v. Mosley, 423 U.S. at 110, n. 2 (WHITE, J., concurring in result) ("[T]he accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism"). See also People v Cunningham, 49 N.Y.2d 203, 210, 400 N.E.2d 360, 364-365 (1980).
15. See, e.g., F. Inbau & J. Reid, Criminal Interrogation and Confessions 661 (2d ed.1967). Under the heading
Urge the Subject to Tell the Truth for the Sake of His Own Conscience, Mental Relief, or Moral Well-being, as Well as "for the Sake of Everybody Concerned,
and Also Because It Is "the Only Decent and Honorable Thing to Do,
the authors advise interrogators to "challenge . . . the offender to display some evidence of decency and honor" by appealing to his religious or moral sensibilities.
16. Officer Gleckman testified that he was riding in the front seat with the driver. App. 46. However, Officer McKenna, who had also ridden in the wagon, and the police captain both testified that Gleckman rode in the back seat with the suspect. Id. at 50-52, 55-56, 339. Thereafter, the third officer in the wagon corroborated Gleckman's testimony. Id. at 58.
17. This was apparently a somewhat unusual procedure. Officer McKenna testified:
If I remember correctly, the vehicle -- Innis was placed in it and the vehicle door was closed, and we were waiting for instructions from Captain Leyden. . . . At that point, Captain Leyden instructed Patrolman Gleckman to accompany us. There's usually two men assigned to the wagon, but, in this particular case, he wanted a third man to accompany us, and Gleckman got in the rear seat. In other words, the door was closed. Gleckman opened the door and got in the vehicle with the subject. Myself, I went over to the other side and got in the passenger's side in the front.
18. Although Officer Gleckman testified that the captain told him not to interrogate, intimidate or coerce respondent on the way back, id. at 46, this does not rule out the possibility that either or both af them thought an indirect psychological ploy would be permissible.
19. In his article quoted in n. 12, supra, Professor White also points out that the officers were probably aware that the chances of a handicapped child's finding the weapon at a time when police were not present were relatively slim. Thus, he concluded that it was unlikely that the true purpose of the conversation was to voice a genuine concern over the children's welfare. See 17 Am.Crim.L.Rev. at 68.