U.S. Supreme Court Maine v. Moulton, 474
U.S. 159 (1985) Maine v. Moulton No. 84-786 Argued October 8,
1985 Decided December 10,
1985 474
U.S. 159 CERTIORARI TO THE SUPREME JUDICIAL
COURT OF MAINE Syllabus Respondent, represented by retained counsel, pleaded not guilty
in a Maine Superior Court to charges of theft by receiving of
automotive vehicles and parts. Respondent's codefendant Colson
informed the police that he had received anonymous threatening
telephone calls regarding the pending charges, and indicated that
he wished to talk to the police about the charges. Before meeting
with the police, Colson met with respondent to plan for the
upcoming trial, and, according to Colson, respondent suggested the
possibility of killing a State's witness. Thereafter, Colson and
his lawyer met with police officers, and Colson confessed to his
participation with respondent in committing the crimes for which
they had been indicted and agreed to testify against respondent and
cooperate in the prosecution of respondent on the pending charges
if no further charges were brought against Colson. Colson also
consented to have a recording device placed on his telephone, and
agreed to record any anonymous threats or any calls from
respondent. Having learned from recorded telephone calls that
Colson and respondent were going to meet to plan defense strategy
for the upcoming trial, the police obtained Colson's consent to be
equipped with a body wire transmitter to record the meeting.
Although Colson was instructed not to attempt to question
respondent at the meeting, his remarks in fact caused respondent to
make incriminating statements. The trial court denied respondent's
pretrial motion to suppress the recorded statements he made to
Colson as having been obtained in violation of respondent's right
to the assistance of counsel under the Sixth and Fourteenth
Amendments on the ground that the recordings were made for other
reasons. Some of respondent's recorded incriminating statements
made at the meeting with Colson were admitted in evidence, and
respondent was convicted of some of the charges. The Supreme
Judicial Court of Maine reversed and remanded for a new trial. Held: Respondent's Sixth Amendment right to the
assistance of counsel was violated by the admission at trial of
incriminating statements made by him to Colson after indictment and
at the meeting of the two to plan defense strategy for the upcoming
trial. Pp. 474 U. S.
168 -180.

															(a) The assistance of counsel is necessary to safeguard the
other procedural safeguards provided to the accused by the criminal
justice process. Accordingly, the right to the assistance of
counsel is not limited to Page 474 U. S. 160 participation in a trial; to deprive a person of counsel during
the period prior to trial may be more damaging than denial of
counsel during the trial itself. Whatever else it may mean, the
right to counsel means at least that a person is entitled to the
help of a lawyer at or after the time that judicial proceedings
have been initiated against him. Pp. 474 U. S.
168 -170.

															(b) Once the right to counsel has attached and been asserted,
the State must honor it. At the very least, the prosecutor and
police have an affirmative obligation not to act in a manner that
circumvents and thereby dilutes the protection afforded by the
right to counsel. Spano v. New York, 360 U.
S. 315 ; Massiah v. United States, 377 U.
S. 201 ; United States v. Henry, 447 U.
S. 264 . 474 U. S. 170-174.

															(c) The State misreads Massiah, supra, and Henry,
supra, in contending that the decisive fact in those cases was
that the police set up the confrontation between the accused and a
police agent at which incriminating statements were elicited, and
that, thus, respondent's Sixth Amendment rights were not violated
here because, he rather than Colson, initiated the recorded
conversations. The Sixth Amendment guarantees the accused, at least
after the initiation of formal charges, the right to rely on
counsel as a "medium" between him and the State. Knowing
exploitation by the State of an opportunity to confront the accused
without counsel being present is as much a breach of the State's
obligation not to circumvent the right to the assistance of counsel
as is the intentional creation of such an opportunity. Pp. 474 U. S.
174 -176.

															(d) In this case, the State clearly violated respondent's Sixth
Amendment right when it arranged to record conversations between
respondent and its undercover informant, Colson. When the police
requested that Colson wear a body wire transmitter to the meeting
with respondent, the police knew that respondent would make
statements that he had a constitutional right not to make to their
agent prior to consulting with counsel. By concealing the fact that
Colson was an agent of the State, the police denied respondent the
opportunity to consult with counsel, and thus denied him the
assistance of counsel guaranteed by the Sixth Amendment. Pp. 474 U. S.
176 -177.

															(e) There is no merit to the argument that the incriminating
statements obtained by the police should not be suppressed because
the police had other, legitimate reasons for listening to
respondent's conversations with Colson, namely, to investigate
respondent's alleged plan to kill the State's witness and to insure
Colson's safety. This same argument was rejected in Massiah,
supra, where the Court held that to allow the admission of
evidence obtained from the accused in violation of his Sixth
Amendment rights whenever the police assert the need to investigate
other crimes to justify their surveillance invites abuse by law
enforcement personnel in the form of fabricated investigations and
risks the Page 474 U. S. 161 evisceration of the Sixth Amendment right. Evidence obtained
that is relevant to crimes as to which the Sixth Amendment right
has not yet attached may be admissible at a trial on those charges.
Pp. 474 U. S.
178 -180. 481 A.2d
155 , affirmed.

															BRENNAN, J., delivered the opinion of the Court, in which
MARSHALL,BLACKMUN, POWELL, and STEVENS, JJ., joined. BURGER, C.J.,
filed a dissenting opinion, in which WHITE and REHNQUIST JJ.,
joined, and in Parts I and III of which O'CONNOR, J., joined, post, p. 474 U. S.
181 .

															JUSTICE BRENNAN delivered the opinion of the Court.

															The question presented in this case is whether respondent's
Sixth Amendment right to the assistance of counsel was violated by
the admission at trial of incriminating statements made by him to
his codefendant, a secret government informant, after indictment
and at a meeting of the two to plan defense strategy for the
upcoming trial. I On the night of January 15, 1981, police officers in Belfast,
Maine, responded to a fire call in the vicinity of the Belfast
Dodge automobile dealership. Arriving at the scene, the officers
discovered a burning Chevrolet dump truck which they recognized as
a vehicle that had been reported stolen. [ Footnote 1 ] Page 474 U. S. 162 After examining the burning truck, the officers searched a
building located on the Belfast Dodge property. This building was
not part of the dealership, but was leased to respondent Perley
Moulton and his codefendant Gary Colson, who were using the space
to restore and sell old Ford Mustangs. Inside, the officers
discovered evidence of several recent automobile and
automobile-related thefts.

															On April 7, 1981, a Waldo County grand jury returned indictments
charging Moulton and Colson with four counts of theft by receiving
in violation of Me.Rev.Stat.Ann., Tit.17-A, § 359 (1983).
Specifically, the indictments alleged that Moulton and Colson
received, retained, or disposed of a 1978 Ford pickup truck, a 1978
Chevrolet dump truck, a 1970 Ford Mustang automobile, and assorted
Ford Motor Company automotive parts knowing these to be stolen and
intending to deprive the owners of possession. On April 9, Moulton
and Colson, represented by retained counsel, appeared before the
Maine Superior Court for Waldo County and entered pleas of not
guilty. Both were enlarged on bail pending trial. Numerous
proceedings, unnecessary to detail here, occurred during the
ensuing year and a half.

															On November 4, 1982, Colson complained by telephone to Robert
Keating, Chief of the Belfast Police Department, that he had
received anonymous threatening telephone calls regarding the
charges pending against him and Moulton, and indicated that he
wished to talk to the police about the charges. Keating told Colson
to speak with his lawyer and to call back.

															On November 6, Colson met with Moulton at a Belfast restaurant
to plan for their upcoming trial. According to Colson, Moulton
suggested the possibility of killing Gary Elwell, a State's
witness, and they discussed how to commit the murder.

															On November 9 and 10, Colson, accompanied by his lawyer, met
with Police Chief Keating and State Police Detective Rexford
Kelley. At these meetings, Colson gave full Page 474 U. S. 163 confessions of his participation with Moulton in committing the
crimes for which they had been indicted. In addition, Colson
admitted that he and Moulton had not merely received stolen
automotive parts, but also had broken into the local Ford
dealership to steal the parts. Colson also stated that he and
Moulton had set fire to the dump truck and had committed other
thefts. The officers offered Colson a deal: no further charges
would be brought against him if he would testify against Moulton
and otherwise cooperate in the prosecution of Moulton on the
pending charges. Colson agreed to cooperate. [ Footnote 2 ]

															Colson also discussed with Keating and Kelley the anonymous
threats he had received and Moulton's inchoate plan to kill Gary
Elwell. Keating requested, and Colson consented, to have a
recording device placed on Colson's telephone. Colson was
instructed to turn the recording device on whenever he received a
telephone call, but to turn it off immediately unless it was a
threat from the anonymous caller or a call from Moulton.

															The recording device was on Colson's telephone for over a month.
Although he received no threats, Colson spoke to Moulton three
times during this period, and the tapes of these calls were turned
over to the police. The first conversation, on November 22,
concerned primarily personal matters. The only reference to the
pending criminal charges was Colson's question whether Moulton had
"heard anything from the lawyer," and Moulton's response that he
had not, but that he had "come up with a method" that he "ha[d] to
work out the details on," and that "[s]ome day [he'd] like to get
together and talk to [Colson] about it." Moulton, then Page 474 U. S. 164 living in New Hampshire, said that he was planning to visit
Belfast around Christmas.

															The second telephone conversation, on December 2, was prompted
by Moulton's receipt of copies of statements of three of the
State's witnesses, including Elwell; Colson had not yet received
copies of the statements. Most of their talk (on Moulton's side
particularly) was about the statements of Elwell and Elwell's
brother, which accused Moulton and Colson of being guilty of the
pending charges and which Moulton complained were an attempt to
frame him and Colson. After reading Colson a statement by Elwell
that he had received a threatening phone call, Moulton commented
"[t]his is a big joke, man." [ Footnote 3 ] When Colson jokingly suggested that they flee
to Acapulco, Moulton vehemently rejected the suggestion, stating:
"No, I'm gonna stay here and I'm gonna fight it, man. I'm gonna
fight it, man. I ain't gonna get framed for nothing." Colson
assented to this, and suggested, "we'll have to get together
sometime. . . ." Moulton reminded Colson that he would be visiting
at Christmas, and the conversation ended without Moulton's having
said anything that incriminated him.

															The third telephone conversation, which took place on December
14, was similar to the second one. Most of the conversation
concerned the pending charges, but Moulton said nothing
inculpatory, and continued to insist that he and Colson were being
framed. Moulton asked Colson to set aside an entire day so that the
two of them could meet and plan their defense. They agreed to meet
on Sunday, December 26.

															After learning from the telephone recordings about the meeting
planned for December 26, the police obtained Colson's consent to be
equipped with a body wire transmitter to record what was said at
the meeting. Chief Keating later testified that he did this for
Colson's safety in case Moulton Page 474 U. S. 165 realized that Colson was cooperating with the police, and to
record any further conversation concerning threats to witnesses.
Keating also testified that he was aware that Moulton and Colson
were meeting to discuss the charges for which Moulton was already
under indictment. Colson was instructed "not to attempt to question
Perley Moulton, just be himself in his conversation. . . ."

															The December 26 meeting, as was to be expected from the recorded
telephone conversations, consisted of a prolonged discussion of the
pending charges -- what actually had occurred, what the State's
evidence would show, and what Moulton and Colson should do to
obtain a verdict of acquittal. The idea of eliminating witnesses
was briefly mentioned early in the conversation. After a short
discussion, encouraged by Colson, [ Footnote 4 ] Moulton concluded that he did not think the
plan would work. The remainder of the lengthy meeting was spent
discussing the case. Moulton and Colson decided to create false
alibis as their defense at trial. Because they sought to conform
these alibis as closely as possible to what really happened, much
of their discussion involved recounting the crimes. Although Colson
had described what had happened in detail when he confessed to the
police a month earlier, he now frequently professed to be unable to
recall the Page 474 U. S. 166 events. Apologizing for his poor memory, he repeatedly asked
Moulton to remind him about the details of what had happened, and
this technique caused Moulton to make numerous incriminating
statements. [ Footnote 5 ] Nor
were all of Colson's memory lapses related to events that required
discussion to fabricate convincing alibis. Colson also "reminisced"
about events surrounding the various thefts, and this technique too
elicited additional incriminating statements from Moulton. For
example, Colson asked Moulton how many locks they had drilled to
steal a truck, a fact obviously not relevant to developing an
alibi. Similarly, Colson questioned Moulton about whether it was
the Mustang or the pickup truck that did not have a heater. Later,
Colson jokingly drew forth admissions from Moulton concerning the
dumping of a stolen truck into a pond after it had been scavenged
for parts, and the dumping of a load of potatoes from another
stolen truck onto the road. Each of these statements was later
admitted into evidence against Moulton at trial.

															Moulton filed a pretrial motion to suppress recorded statements
he made to Colson in the three telephone conversations and at the
December 26 meeting, arguing, inter alia, that the
statements were obtained in violation of the Sixth and Fourteenth
Amendments. After a hearing, the trial court denied the motion. The
trial court found that the recordings were made

															"in order to gather information concerning the anonymous threats
that Mr. Colson had been Page 474 U. S. 167 receiving, to protect Mr. Colson, and to gather information
concerning defendant Moulton's plans to kill Gary Elwell."

															Meanwhile, after Colson's role as an informant had been revealed
to Moulton, the State had the pending indictments dismissed and
obtained seven new indictments against Moulton. These indictments
realleged the pending charges and charged Moulton in addition with
burglary, arson, and three more thefts. Moulton pleaded guilty to
the charges contained in two of these indictments, and the trial
court dismissed two more for improper venue. Moulton waived his
right to a jury and proceeded to trial on the remaining three
indictments, which covered the subjects of the original indictments
and charged him with burglary, arson, and theft. At the trial, the
State did not offer into evidence anything from the recorded
telephone conversations, but did offer portions of the tapes of the
December 26 meeting, principally those involving direct discussion
of the thefts for which Moulton was originally indicted. The State
did not offer the portion of the meeting during which Moulton and
Colson discussed the possibility of killing witnesses, and offered
only one portion of the discussion about developing false
testimony. At the conclusion of the trial, the court dismissed one
more count of theft for improper venue and found Moulton not guilty
of the arson charge. The court found Moulton guilty, however, of
burglary and theft in connection with the Ford pickup truck, the
Chevrolet dump truck, and the Ford automotive parts.

															Moulton appealed these convictions on the ground that the
admission into evidence of his statements to Colson violated his
Sixth Amendment right to the assistance of counsel. The State filed
a cross-appeal objecting to the dismissal of charges for improper
venue. The Supreme Judicial Court of Maine granted both appeals and
remanded for a new trial. 481 A.2d
155 (1984). Regarding the admission of Moulton's recorded
statements to Colson, the court agreed that there was "ample
evidence" to support the trial court's finding that Page 474 U. S. 168 the police wired Colson for legitimate purposes, but held
that

															"[r]eference to the State's legitimate motive may be relevant
to, but cannot wholly refute, the alleged infringement of Moulton's
right to counsel." Id. at 160. The court held that the State cannot use
against Moulton at trial recordings of conversations where the
State "knew, or should have known" that Moulton would make
incriminating statements regarding crimes as to which charges were
already pending. Pointing to Moulton's close relationship with
Colson, the fact that the purpose of their meeting was to discuss
the pending charges, and the fact that, at the time of the meeting,
Colson was "fully cooperating with the police, and no longer stood
in the same adversarial position as did Moulton," the court
held:

															"When the police recommended the use of the body wire to Colson
they intentionally created a situation that they knew, or should
have known, was likely to result in Moulton's making incriminating
statements during his meeting with Colson. The police's valid
purpose in investigating threats against witnesses does not
immunize the recordings of Moulton's incriminating statements from
constitutional attack. Those statements may be admissible in the
investigation or prosecution of charges for which, at the time the
recordings were made, adversary proceedings had not yet commenced.
But as to the charges for which Moulton's right to counsel had
already attached, his incriminating statements should have been
ruled inadmissible at trial, given the circumstances in which they
were acquired." Id. at 161. We granted the State's petition for
certiorari. 469 U.S. 1206. We affirm. II A The right to the assistance of counsel guaranteed by the Sixth
and Fourteenth Amendments is indispensable to the fair
administration of our adversarial system of criminal justice.
[ Footnote 6 ] Page 474 U. S. 169 Embodying "a realistic recognition of the obvious truth that the
average defendant does not have the professional legal skill to
protect himself," Johnson v. Zerbst, 304 U.
S. 458 , 304 U. S.
462 -463 (1938), the right to counsel safeguards the
other rights deemed essential for the fair prosecution of a
criminal proceeding. Justice Sutherland's oft-quoted explanation in Powell v. Alabama, 287 U. S. 45 (1932), bears repetition here:

															"The right to be heard would be, in many cases, of little avail
if it did not comprehend the right to be heard by counsel. Even the
intelligent and educated layman has small and sometimes no skill in
the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is
good or bad. He is unfamiliar with the rules of evidence. Left
without the aid of counsel, he may be put on trial without a proper
charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both
the skill and knowledge adequately to prepare his defense, even
though he have a perfect one. He requires the guiding hand of
counsel at every stage of the proceedings against him." Id. Page 474 U. S. 170 at 287 U. S. 68 -69
(quoted in Gideon v. Wainwright, 372 U.
S. 335 , 372 U. S.
344 -345 (1963)).

															As indicated in the last sentence of this paragraph, the Court
has also recognized that the assistance of counsel cannot be
limited to participation in a trial; to deprive a person of counsel
during the period prior to trial may be more damaging than denial
of counsel during the trial itself. Recognizing that the right to
the assistance of counsel is shaped by the need for the assistance
of counsel, we have found that the right attaches at earlier,
"critical" stages in the criminal justice process "where the
results might well settle the accused's fate and reduce the trial
itself to a mere formality." United States v. Wade, 388 U. S. 218 , 388 U. S. 224 (1967) (quoted in United States v. Gouveia, 467 U.
S. 180 , 467 U. S. 189 (1984)). See, e.g., Coleman v. Alabama, 399 U. S.
1 (1970); Hamilton v. Alabama, 368 U. S.
52 (1961); White v. Maryland, 373 U. S.
59 (1963); Escobedo v. Illinois, 378 U.
S. 478 (1964); Kirby v. Illinois, 406 U.
S. 682 (1972). And,

															"[w]hatever else it may mean, the right to counsel granted by
the Sixth and Fourteenth Amendments means at least that a person is
entitled to the help of a lawyer at or after the time that judicial
proceedings have been initiated against him. . . ." Brewer v. Williams, 430 U. S. 387 , 430 U. S. 398 (1977). This is because, after the initiation of adversary criminal
proceedings,

															"'the government has committed itself to prosecute, and . . .
the adverse positions of government and defendant have solidified.
It is then that a defendant finds himself faced with the
prosecutorial forces of organized society, and immersed in the
intricacies of substantive and procedural criminal law.'" Goveia, supra, at 467 U. S. 189 (quoting Kirby v. Illinois, supra, at 406 U. S.
689 ). B Once the right to counsel has attached and been asserted, the
State must, of course, honor it. [ Footnote 7 ] This means more than Page 474 U. S. 171 simply that the State cannot prevent the accused from obtaining
the assistance of counsel. The Sixth Amendment also imposes on the
State an affirmative obligation to respect and preserve the
accused's choice to seek this assistance. We have on several
occasions been called upon to clarify the scope of the State's
obligation in this regard, and have made clear that, at the very
least, the prosecutor and police have an affirmative obligation not
to act in a manner that circumvents and thereby dilutes the
protection afforded by the right to counsel. In Spano v. New
York, 360 U. S. 315 (1959), the defendant, who had already been indicted, was
coercively interrogated by police until the early hours of the
morning despite his repeated requests to see his lawyer. A
unanimous Court reversed his conviction on the ground that the
confession obtained by this interrogation was involuntary, and
therefore should not have been admitted into evidence at trial.
Four Justices, in two concurring opinions, stated that they would
also have reached this result on the ground that Spano's Sixth
Amendment right to the assistance of counsel was violated. These
Justices reasoned that to permit police to "produce the vital
evidence in the form of a confession which is useful or necessary
to obtain a conviction" in the absence of counsel, after the right
to counsel has attached, is to deny the accused "effective
representation by counsel at the only stage when legal aid and
advice would help him." Id. at 360 U. S.
325 -326 (Douglas, J., concurring, joined by Black and
BRENNAN, JJ.); see also id. at 360 U. S.
326 -327 (Stewart, J., concurring, joined by Douglas and
BRENNAN, JJ.). As Justice Douglas succinctly put the point,

															"what use is a defendant's right to effective counsel at every
stage of a criminal case if, while he is held awaiting trial, he
can be questioned in the absence of counsel until he
confesses?" Id. at 360 U. S.
326 . Page 474 U. S. 172 The position of the concurring Justices in Spano was
adopted by the Court in Massiah v. United States, 377 U. S. 201 (1964). Massiah was indicted, along with a man named Colson,
[ Footnote 8 ] for conspiracy to
possess and to distribute cocaine. Massiah retained a lawyer,
pleaded not guilty, and was released on bail. Colson, meanwhile,
decided to cooperate with Government agents in their continuing
investigation of the narcotics activity in which Massiah and others
were thought to be engaged. Colson permitted a Government agent to
install a radio transmitter under the front seat of his automobile.
Massiah held a lengthy conversation with Colson in this automobile
while a Government agent listened over the radio. Massiah made
several incriminating statements, and these were brought before the
jury through the testimony of the Government agent. We reversed
Massiah's conviction on the ground that the incriminating
statements were obtained in violation of Massiah's rights under the
Sixth Amendment. The Court stressed the fact that the interview
took place after indictment, at a time when Massiah was clearly
entitled to the assistance of counsel. Relying on Justice Douglas'
Spano concurrence, the Court concluded that the need for, and
consequently the right to, the assistance of counsel applied
equally in this extrajudicial setting as at the trial itself. 377
U.S. at 377 U. S. 204 .
[ Footnote 9 ] Consequently, the
Court held: Page 474 U. S. 173 "[Massiah] was denied the basic protections of [the right to the
assistance of counsel] when there was used against him at trial
evidence of his own incriminating words, which federal agents had
deliberately elicited from him after he had been indicted and in
the absence of his counsel." Id. at 377 U. S.
206 .

															We applied this principle most recently in United States v.
Henry, 447 U. S. 264 (1980). Henry was arrested and indicted for bank robbery. Counsel
was appointed, and Henry was held in jail pending trial. Nichols,
an inmate at the same jail and a paid informant for the Federal
Bureau of Investigation, told a Government agent that he was housed
in the same cellblock as several federal prisoners, including
Henry. The agent told Nichols to pay attention to statements made
by these prisoners, but expressly instructed Nichols not to
initiate any conversations and not to question Henry regarding the
bank robbery. Nichols and Henry subsequently engaged in some
conversations during which Henry told Nichols about the robbery.
Nichols testified about these conversations at Henry's trial, and
Henry was convicted. This Court reversed, finding that the
Government had " deliberately elicited' incriminating statements
from Henry within the meaning of Massiah." Id. at 447 U. S. 270 .
Several facts were emphasized in THE CHIEF JUSTICE's opinion for
the Court: that Nichols was acting as an informant for the
Government, and therefore had an incentive to produce useful
information; that Henry was unaware of Nichols' role as a
Government informant; and, finally, that Henry and Nichols were
incarcerated together at the time the conversations took place.
With respect to this last fact, the Court reasoned that "confinement may bring into play subtle influences that will
make [an individual] particularly susceptible to the ploys of
undercover Government agents,"

															influences that were facilitated by Nichols' "apparent status as
a person sharing a common plight." Id. at 447 U. S. 274 .
Considering Nichols' Page 474 U. S. 174 conversations with Henry in light of these circumstances, the
Court concluded that Nichols "deliberately used his position to
secure incriminating information from Henry when counsel was not
present," in violation of the Sixth Amendment. Id. at 447 U. S.
270 -271. The Government argued that it should not be
held responsible for Nichols' conduct, because its agent had
instructed Nichols not to question Henry and had not intended that
Nichols take affirmative steps to obtain incriminating statements.
We rejected this argument, finding that, under the circumstances,
the agent "must have known" that Nichols would take affirmative
steps to secure incriminating information. Id. at 447 U. S. 271 .
Consequently, the Court held,

															"[b]y intentionally creating a situation likely to induce Henry
to make incriminating statements without the assistance of counsel,
the Government violated Henry's Sixth Amendment right to
counsel." Id. at 447 U. S.
274 . C The State contends that the decisive fact in Massiah and Henry was that the police set up the confrontation
between the accused and a police agent at which incriminating
statements were elicited. Supported by the United States as amicus curiae, the State maintains that the Sixth
Amendment is violated only when police intentionally take this or
some equivalent step. Because Moulton, rather than Colson,
initiated the recorded telephone conversations and requested the
December 26 meeting, the State concludes that Moulton's Sixth
Amendment rights were not violated here. In the first place, the
identity of the party who instigated the meeting at which the
Government obtained incriminating statements was not decisive, or
even important, to our decisions in Massiah or Henry. Thus, while in Massiah it may have been
the Government agent who was responsible for setting up the meeting
with the defendant, [ Footnote
10 ] one discovers Page 474 U. S. 175 this only by looking to the opinions of the Court of Appeals. It
is not mentioned in this Court's opinion, since the issue of who
set up the meeting with whom was not pertinent to our disposition.
Moreover, four years after Massiah, the Court summarily
reversed a conviction where the defendant requested the meeting and
initiated and led the conversation in which incriminating
statements were made to an undercover informant. Beatty v.
United States, 389 U. S. 45 (1967)
(per curiam). In that case, the Solicitor General made the same
argument that he and the State make today, see Brief in
Opposition, Beatty v. United States, O.T. 1967, No. 338,
pp. 5-8; we rejected this argument in an opinion that simply cited Massiah. [ Footnote
11 ] Finally, in Henry, we deemed it

															"irrelevant that, in Massiah, the agent had to arrange
the meeting between Massiah and his codefendant, while here the
agents were fortunate enough to have an undercover informant
already in close proximity to the accused."

															447 U.S. at 447 U. S. 272 ,
n. 10. Page 474 U. S. 176 Beyond this, the State's attempt to limit our holdings in Massiah and Henry fundamentally misunderstands
the nature of the right we recognized in those cases. The Sixth
Amendment guarantees the accused, at least after the initiation of
formal charges, the right to rely on counsel as a "medium" between
him and the State. As noted above, this guarantee includes the
State's affirmative obligation not to act in a manner that
circumvents the protections accorded the accused by invoking this
right. The determination whether particular action by state agents
violates the accused's right to the assistance of counsel must be
made in light of this obligation. Thus, the Sixth Amendment is not
violated whenever -- by luck or happenstance -- the State obtains
incriminating statements from the accused after the right to
counsel has attached. See Henry, 447 U.S. at 447 U. S. 276 (POWELL, J., concurring). However, knowing exploitation by the
State of an opportunity to confront the accused without counsel's
being present is as much a breach of the State's obligation not to
circumvent the right to the assistance of counsel as is the
intentional creation of such an opportunity. Accordingly, the Sixth
Amendment is violated when the State obtains incriminating
statements by knowingly circumventing the accused's right to have
counsel present in a confrontation between the accused and a state
agent. [ Footnote 12 ] III Applying this principle to the case at hand, it is clear that
the State violated Moulton's Sixth Amendment right when it arranged
to record conversations between Moulton and its undercover
informant, Colson. It was the police who suggested to Colson that
he record his telephone conversations with Moulton. Having learned
from these recordings that Page 474 U. S. 177 Moulton and Colson were going to meet, the police asked Colson
to let them put a body wire transmitter on him to record what was
said. Police Chief Keating admitted that, when they made this
request, the police knew -- as they must have known from the
recorded telephone conversations -- that Moulton and Colson were
meeting for the express purpose of discussing the pending charges
and planning a defense for the trial. [ Footnote 13 ] The police thus knew that Moulton would
make statements that he had a constitutional right not to make to
their agent prior to consulting with counsel. As in Henry, the fact that the police were "fortunate enough to have an
undercover informant already in close proximity to the accused"
does not excuse their conduct under these circumstances. 447 U.S.
at 447 U. S. 272 ,
n. 10. By concealing the fact that Colson was an agent of the
State, the police denied Moulton the opportunity to consult with
counsel, and thus denied him the assistance of counsel guaranteed
by the Sixth Amendment. [ Footnote 14 ] Page 474 U. S. 178 IV The Solicitor General argues that the incriminating statements
obtained by the Maine police nevertheless should not be suppressed,
because the police had other, legitimate reasons for listening to
Moulton's conversations with Colson, namely, to investigate
Moulton's alleged plan to kill Gary Elwell and to insure Colson's
safety. In Massiah, the Government also contended that
incriminating statements obtained as a result of its deliberate
efforts should not be excluded because law enforcement agents had
"the right, if not indeed the duty, to continue their investigation
of [Massiah] and his alleged criminal associates. . . ." 377 U.S.
at 377 U. S. 206 .
There, as here, the Government argued that this circumstance
justified its surveillance and cured any improper acts or purposes.
We rejected this argument, and held: Page 474 U. S. 179 "We do not question that, in this case, as in many cases, it was
entirely proper to continue an investigation of the suspected
criminal activities of the defendant and his alleged confederates,
even though the defendant had already been indicted. All that we
hold is that the defendant's own incriminating statements, obtained
by federal agents under the circumstances here disclosed, could not
constitutionally be used by the prosecution as evidence against him
at his trial." Id. at 377 U. S. 207 (emphasis omitted).

															We reaffirm this holding, which states a sensible solution to a
difficult problem. The police have an interest in the thorough
investigation of crimes for which formal charges have already been
filed. They also have an interest in investigating new or
additional crimes. Investigations of either type of crime may
require surveillance of individuals already under indictment.
Moreover, law enforcement officials investigating an individual
suspected of committing one crime and formally charged with having
committed another crime obviously seek to discover evidence useful
at a trial of either crime. [ Footnote 15 ] In seeking evidence pertaining to pending
charges, Page 474 U. S. 180 however, the Government's investigative powers are limited by
the Sixth Amendment rights of the accused. To allow the admission
of evidence obtained from the accused in violation of his Sixth
Amendment rights whenever the police assert an alternative,
legitimate reason for their surveillance invites abuse by law
enforcement personnel in the form of fabricated investigations and
risks the evisceration of the Sixth Amendment right recognized in Massiah. On the other hand, to exclude evidence pertaining
to charges as to which the Sixth Amendment right to counsel had not
attached at the time the evidence was obtained, simply because
other charges were pending at that time, would unnecessarily
frustrate the public's interest in the investigation of criminal
activities. Consequently, incriminating statements pertaining to
pending charges are inadmissible at the trial of those charges,
notwithstanding the fact that the police were also investigating
other crimes, if, in obtaining this evidence, the State violated
the Sixth Amendment by knowingly circumventing the accused's right
to the assistance of counsel. [ Footnote 16 ] Because we hold that the Maine police
knowingly circumvented Moulton's right to have counsel present at a
confrontation between Moulton and a police agent, the fact that the
police had additional reasons for recording Moulton's meeting with
Colson is irrelevant. The decision of the Supreme Judicial Court of
Maine is affirmed. It is so ordered. Page 474 U. S. 181 [ Footnote 1 ]

															Indeed, in pursuing an anonymous tip received earlier that day
that the stolen truck could be found at Belfast Dodge, one of the
officers had conducted a consent search of the main building of the
dealership facility.

															[ Footnote 2 ]

															Seven months after the conclusion of Moulton's trial, Colson
pleaded guilty to two counts of theft. The prosecutor recommended
that Colson be sentenced to 2 years' imprisonment, all but 15 days
to be suspended, and placed on probation for 2 years. Colson also
agreed to make restitution up to $2,000 during the probationary
period. The trial court accepted this recommendation and sentenced
Colson accordingly.

															[ Footnote 3 ]

															Colson testified that he never told Moulton about the
threatening calls that he had received.

															[ Footnote 4 ]

															The exchange went as follows:

															"[Moulton:] You know I thought of a way to eliminate them.
Remember we were talking about it before?"

															"[Colson:] Yes, you thought of a way?"

															"[Moulton:] Yeah, but . . . I don't think we ought to go for
it."

															"[Colson:] Is it foolproof?"

															"[Moulton:] No."

															"[Colson:] Is it, is it fairly foolproof?"

															"[Moulton:] I like it. I think its just for the. . . ."

															"[Colson:] Well let me [hear it]."

															Moulton explained that he had considered using air rifles to
shoot poisoned darts and the conversation then turned to joking
about a magazine that instructed readers how to build bombs to kill
large numbers of people. Exh. S-4, Tr. of Dec. 26 Meeting
18-19.

															[ Footnote 5 ]

															Colson began doing this immediately after Moulton vetoed the
plan to eliminate witnesses. Colson indicated that he did not have
copies of all the discovery materials, and Moulton went outside to
his car to get his copies. While Moulton was gone, Colson sighed
heavily and whispered "[o]h boy, I just hope I can make it through
this" into the microphone. Then, when Moulton returned moments
later, Colson immediately stated, slowly and deliberately:

															"I want you to help me with some dates. One date I cannot
remember Caps [Moulton's nickname], just can't remember, I know it
was in December, what night did we break into Lothrop Ford? What
date?" Id. at 23.

															[ Footnote 6 ]

															Justice Black explained in Gideon v. Wainwright, 372 U. S. 335 (1963):

															"[R]eason and reflection require us to recognize that, in our
adversary system of criminal justice, any person haled into court .
. . cannot be assured a fair trial unless counsel is provided for
him. This seems to us to be an obvious truth. Governments, both
state and federal, quite properly spend vast sums of money to
establish machinery to try defendants accused of crime. Lawyers to
prosecute are everywhere deemed essential to protect the public's
interest in an orderly society. Similarly, there are few defendants
charged with crime, few indeed, who fail to hire the best lawyers
they can get to prepare and present their defenses. That government
hires lawyers to prosecute and defendants who have the money hire
lawyers to defend are the strongest indications of the widespread
belief that lawyers in criminal courts are necessities, not
luxuries. The right of one charged with crime to counsel may not be
deemed fundamental and essential to fair trials in some countries,
but it is in ours." Id. at 372 U. S.
344 .

															[ Footnote 7 ] Cf. Brewer v. Williams, 430 U.
S. 387 (1977):

															"[T]he lawyer is the essential medium through which the demands
and commitments of the sovereign are communicated to the citizen.
If, in the long run, we are seriously concerned about the
individual's effective representation by counsel, the State cannot
be permitted to dishonor its promise to this lawyer." Id. at 430 U. S. 415 (STEVENS, J., concurring) (footnote omitted).

															[ Footnote 8 ]

															The parties have taken pains to assure us that Massiah's friend
Colson and Moulton's friend Colson are unrelated.

															[ Footnote 9 ]

															Justice Stewart noted that this view of the right to counsel "no
more than reflects a constitutional principle established as long
ago as Powell v. Alabama, " where the Court noted that

															"'during perhaps the most critical period of the proceedings . .
. that is to say, from the time of their arraignment until the
beginning of their trial, when consultation, thorough-going
investigation and preparation [are] vitally important, the
defendants [are] as much entitled to such aid [of counsel] . . . as
at the trial itself.'" Massiah, 377 U.S. at 377 U. S. 205 (quoting Powell v. Alabama, 287 U. S.
45 , 287 U. S. 57 (1932)).

															[ Footnote 10 ]

															It is not clear whether the informant asked to meet with Massiah
or vice versa. Both the opinion for the Second Circuit and the
dissent state only that, on the instructions of a Government agent,
Colson invited Massiah into his car to discuss their case; neither
opinion establishes who requested the meeting in the first place. See United States v. Massiah, 307 F.2d 62, 66 (1962); id. at 72 (Hays, J., dissenting). It is quite plausible
that Massiah asked to see Colson, who then proposed meeting in his
car. In fact, there is nothing in the record in Massiah to
support even the assertion of the Court of Appeals that Colson,
rather than Massiah, suggested meeting in Colson's car, although
the inference is logical enough. See App. to Brief for
United States in Massiah v. United States, O.T. 1963,
No.199, pp. 125a-175a (testimony of Agent Murphy).

															[ Footnote 11 ]

															In his amicus brief for the United States in this case,
the Solicitor General suggests that Beatty did not survive Brewer v. Williams, 430 U. S. 387 (1977), which, he contends, modified Massiah to require
affirmative interrogation by the Government. Brief for United
States as Amicus Curiae 17, n. 12. That argument, however,
was expressly rejected when the Solicitor General made it in Henry. See 447 U.S. at 447 U. S. 271 ("While affirmative interrogation, absent waiver, would certainly
satisfy Massiah, we are not persuaded, as the Government
contends, that Brewer v. Williams . . . modified Massiah's deliberately elicited' test"). Cf.
also Brief for United States in United States v.
Henry, O.T. 1979, No. 121, p 2, n. 12. [ Footnote 12 ]

															Direct proof of the State's knowledge will seldom be available
to the accused. However, as Henry makes clear, proof that
the State "must have known" that its agent was likely to obtain
incriminating statements from the accused in the absence of counsel
suffices to establish a Sixth Amendment violation. See 447
U.S. at 447 U. S.
271 .

															[ Footnote 13 ]

															Because Moulton thought of Colson only as his codefendant,
Colson's engaging Moulton in active conversation about their
upcoming trial was certain to elicit statements that Moulton would
not intentionally reveal -- and had a constitutional right not to
reveal -- to persons known to be police agents. Under these
circumstances, Colson's merely participating in this conversation
was "the functional equivalent of interrogation." Henry, 447 U.S. at 447 U. S. 277 (POWELL, J., concurring). In addition, the tapes disclose, and the
Supreme Judicial Court of Maine found, that Colson

															"frequently pressed Moulton for details of various thefts, and,
in so doing, elicited much incriminating information that the State
later used at trial."

															481 A.2d at 161. Thus, as in Henry, supra, at 447 U. S. 271 ,
n. 9, we need not reach the situation where the "listening post"
cannot or does not participate in active conversation and prompt
particular replies.

															[ Footnote 14 ]

															The State argues that it took steps to prevent Colson from
inducing Moulton to make incriminating admissions by instructing
Colson to "be himself," "act normal," and "not interrogate"
Moulton. Tr. of Hearing on Motion to Suppress 42, 51, 56. In Henry, we rejected this same argument, although the
likelihood that the accused would talk about the pending charges to
a cellmate was less than here, where the accused invited his
codefendant to discuss the upcoming trial, and although the
instructions to the agent were far more explicit. See 447
U.S. at 447 U. S. 268 , 447 U. S. 271 .
More importantly, under the circumstances of this case, the
instructions given to Colson were necessarily inadequate. The Sixth
Amendment protects the right of the accused not to be confronted by
an agent of the State regarding matters as to which the right to
counsel has attached without counsel's being present. This right
was violated as soon as the State's agent engaged Moulton in
conversation about the charges pending against him. Because these
charges were the only subject to be discussed at Colson's December
26 meeting with Moulton, a Sixth Amendment violation was inevitable
once Colson agreed to this meeting with Moulton. In any event, we
reject the State's suggestion that these instructions were designed
to protect Moulton's constitutional rights. The instructions were
obviously motivated by the police's concern that Colson, who had
never before served as an undercover agent, might behave
unnaturally or ask too many questions, thereby tipping Moulton off
to the fact that Colson was cooperating with the police. Thus,
rather than explain to Colson that actively questioning Moulton
might taint any evidence obtained, the police simply told Colson to
"be himself," and to "act normal." Tr. of Hearing on Motion to
Suppress 42, 51, 56. In addition, the instructions were not limited
to questions concerning the pending charges, the only matters as to
which active questioning might create problems. On the contrary,
according to Chief Keating, Colson was instructed that he could
engage Moulton in a conversation, but should not try to draw him
out on "elimination of witnesses or anything." Id. at
51.

															[ Footnote 15 ]

															In his brief, the Solicitor General assumes that the only claim
made by the Government and answered by the Court in Massiah was that the Government was engaged in a
continuing investigation of crimes as to which charges were already
pending. He concedes that this was an inadequate justification
which

															"had the flavor of a post hoc rationalization of
conduct that, at its inception, in fact had as a primary purpose
the obtaining of evidence for use at trial on the pending
charges."

															Brief for United States as Amicus Curiae 23-24. So
saying, he asks us to distinguish from that justification the
justification that law enforcement officials are investigating
"separate" crimes. In Massiah, however, the Government's
assertion was that it needed to continue its investigation in order
to discover the identities of Massiah's intended buyer and of
others who were importing narcotics, as well as to find additional
evidence of Massiah's crimes. Brief for United States in Massiah v. United States, O.T. 1963, No.199, pp. 26-27.
The Court in Massiah was thus faced with the very same
argument made by the Solicitor General in this case. Even were the
Solicitor General's characterization of the issue posed in Massiah correct, however, we would not draw the
distinction he asks us to make. The likelihood of post hoc rationalizing is the same whether police claim to be investigating
other examples of the same crime or some allegedly "separate"
crime. We take what we feel is a more realistic view of police
investigations, and instead accept that dual purposes may exist
whenever police have more than one reason to investigate
someone.

															[ Footnote 16 ]

															Incriminating statements pertaining to other crimes, as to which
the Sixth Amendment right has not yet attached, are, of course,
admissible at a trial of those offenses.

															CHIEF JUSTICE BURGER, with whom JUSTICE WHITE and JUSTICE
REHNQUIST join, and with whom JUSTICE O'CONNOR joins as to Parts I
and III, dissenting.

															Today the Court holds that the Sixth Amendment prohibits the use
at trial of postindictment statements made to a government
informant, even where those statements were recorded as part of a
good faith investigation of entirely separate crimes. Nothing
whatever in the Constitution or our prior opinions supports this
bizarre result, which creates a new "right" only for those possibly
habitual offenders who persist in criminal activity even while
under indictment for other crimes. I dissent, and would
reverse. I Before reaching the legal issues, it is important that the
factual basis on which the State acted here be clearly understood.
Since the Court's opinion glosses over some of the more relevant
facts, I review them here briefly. After respondent and a
codefendant, Gary Colson, were indicted on several felony counts of
theft by receiving stolen goods, Colson telephoned Belfast Police
Chief Robert Keating to arrange a meeting. At that meeting, on
November 4, 1982, Colson told Chief Keating that he had been
receiving "threatening phone calls" and that "it had gone too far."
In this conversation, Colson indicated his desire to tell Chief
Keating about the circumstances giving rise to the indictment; but
Chief Keating appropriately cautioned him to consult with an
attorney before saying more. Two days later, Colson and respondent
met. Respondent spoke of "[g]etting rid of a couple of witnesses,"
including Gary Elwell, a key prosecution witness in the upcoming
trial of Colson and respondent. Respondent had formulated a general
plan for the murder; Colson's role was pick up a car to be used in
that endeavor. On November 9 and 10, Colson met with Chief Keating
and Detective Rex Kelley of the Maine State Police at the
office Page 474 U. S. 182 of Colson's attorney. At these meetings, Colson revealed to the
police respondent's plan to kill Elwell. Keating was aware that
several witnesses connected with the case had received threats. One
witness, Duke Ducaster, had been threatened personally by
respondent. Another witness, Herman Peasley, "had been told . . .
that a cup of acid could be thrown in his face" if he talked to the
police. Colson then consented to having the police place a
recording device on his home telephone. Keating testified that he
placed the device on the telephone because respondent was to call
Colson back when plans to eliminate Elwell had been finalized, and
because Colson himself had been receiving anonymous threatening
telephone calls. Three telephone calls initiated by respondent were
subsequently recorded. In the first, on November 22, 1982,
respondent, in an apparent reference to the plan to do away with
Elwell, told Colson that he had "come up with a method," and that
he wanted to get together with Colson to talk about it after he had
"work[ed] out the details on it." In the second recorded
conversation, respondent reviewed with Colson the extent of the
evidence against them and made several incriminating statements. In
the last of the recorded conversations, respondent again
incriminated himself [ Footnote 2/1 ]
and Page 474 U. S. 183 referred to statements by witnesses that they had been
threatened. Finally, respondent told Colson that he wanted to meet
to "review the whole plan." Chief Keating and Detective Kelley then
arranged for Colson to wear a body recorder/transmitter during this
meeting. Both officers testified that the recorder was intended to
protect Colson's safety, since respondent might have learned that
Colson was cooperating with the police, as well as to record any
information concerning threats to other witnesses. Colson himself
testified that his understanding of the reasons for using the
recorder were "number 1 . . . my safety" and "number 2 . . . for
any other plans to do away with any of the witnesses." When asked
if there was a "number 3," Colson testified "no." The police
instructed Colson "to act like himself, converse normally, and
avoid trying to draw information out of Moulton." During the
meeting with Colson, respondent, without any prompting, brought up
the possibility of killing Gary Elwell, by means of an air gun with
hollow-tipped darts or explosives. [ Footnote 2/2 ] Respondent also suggested developing false
testimony Page 474 U. S. 184 for presentation at trial. These portions of the transcript were
not admitted into evidence at trial. In addition, there was direct
discussion of the thefts for which respondent had been indicted;
these portions of the transcript were admitted. The trial court
refused to suppress these portions, since the State had recorded
the conversations

															"for legitimate purposes not related to the gathering of
evidence concerning the crime for which [respondent] had been
indicted -- i.e., in order to gather information concerning
the anonymous threats that Mr. Colson had been receiving, to
protect Mr. Colson, and to gather information concerning
[respondent's] plans to kill Gary Elwell."

															The Maine Supreme Court, in a careful opinion, found "ample
evidence" to support this factual finding. II The Court today concludes that

															"[t]o allow the admission of evidence obtained from an accused
in violation of his Sixth Amendment rights whenever the police
assert an alternative, legitimate reason for their surveillance . .
. risks the evisceration of the Sixth Amendment right recognized in Massiah. " Ante at 474 U. S. 180 .
With all deference, I am bound to state that this conclusion turns
the Sixth Amendment on its head by first positing a constitutional
violation and then asking whether "alternative, legitimate reasons"
for the police surveillance are sufficient to justify that
constitutional violation. Page 474 U. S. 185 As I see it, if "alternative, legitimate reasons" motivated the
surveillance, then no Sixth Amendment violation has occurred.
Indeed, if the police had failed to take the steps they took here,
knowing that Colson was endangering his life by talking to them, in
my view, they would be subject to censure. Analysis of this issue
must begin with Hoffa v. United States, 385 U.
S. 293 (1966), not cited in the Court's opinion. In Hoffa, the Court held that postindictment statements
obtained by a Government informant "relat[ing] to the commission of
a quite separate offense," id. at 385 U. S. 308 ,
were properly admitted at a subsequent trial for the separate
crime. Other courts have also held that Massiah, viewed in
light of the later-decided Hoffa case, does not prohibit
the introduction of incriminating statements obtained in good faith
by the Government even after an indictment at a trial involving an
offense different from that covered by the indictment. See,
e.g., Mealer v. Jones, 741 F.2d 1451, 1455 (CA2 1984), cert. denied, 471 U.S. 1006 (1985); United States v.
Lisenby, 716 F.2d 1355, 1357-1359 (CA11 1983) (en banc).
Applying Hoffa to the facts of this case, it is clear that
the statements obtained by Colson could have been introduced
against respondent at a subsequent trial for crimes apart from
those for which respondent had already been indicted, such as
conspiracy to commit murder or to obstruct justice. The majority
concedes as much:

															"Incriminating statements pertaining to other crimes, as to
which the Sixth Amendment right has not yet attached, are, of
course, admissible at a trial of those offenses." Ante at 474 U. S. 180 ,
n. 16. It follows from this that the State engaged in no
impermissible conduct in its investigation of respondent based on
Colson's revelations. By recording conversations between respondent
and Colson, Chief Keating and Detective Kelley succeeded in
obtaining evidence that the Court's opinion concedes could have
been used to convict respondent of further crimes. In fact, this
record shows clearly that, based on the recordings, the State Page 474 U. S. 186 was able to obtain additional indictments against respondent for
burglary, arson, and three more thefts. The Court's opinion notes
that respondent pleaded guilty to several of the additional
indictments secured as a result of pursuing Colson's leads. Ante at 474 U. S.
167 .

															Courts ought to applaud the kind of careful and diligent efforts
of the police shown by this record. Indeed, the Court's opinion
does not suggest that the police should have -- or could have --
conducted their investigation in any other way. Yet, inexplicably,
the Court holds that the highly probative and reliable evidence
produced by this wholly legitimate investigation must be excluded
from respondent's trial for theft. The anomaly of this position,
then, is that the evidence at issue in this case should have been
excluded from respondent's theft trial even though the same
evidence could have been introduced against respondent
himself at a trial for separate crimes. Far from being "a
sensible solution to a difficult problem," ante at 474 U. S. 179 ,
as the Court modestly suggests, it is a judicial aberration
conferring a windfall benefit to those who are the subject of
criminal investigations for one set of crimes while already under
indictment for another. I can think of no reason to turn the Sixth
Amendment into a "magic cloak," United States v. DeWolf, 696 F.2d 1, 3 (CA1 1982), to protect criminals who engage in
multiple offenses that are the subject of separate police
investigations. We have held that no Sixth Amendment violation
occurs unless the State "deliberately elicit[s]" comments from the
defendant. See Massiah v. United States, 377 U.
S. 201 , 377 U. S. 206 (1964); United States v. Henry, 447 U.
S. 264 , 447 U. S. 270 (1980). As the foregoing amply demonstrates, however, a finding of
"deliberate elicitation" is not the end of the inquiry. In using
the phrase "deliberate elicitation," we surely must have intended
to denote elicitation for the purpose of using such statements
against the defendant in connection with charges for which the
Sixth Amendment right to counsel had attached. Here the State
indeed set out to elicit information Page 474 U. S. 187 from a defendant, but it was an investigation with respect to
crimes other than those for which the defendant then stood
indicted. As two courts found, the State recorded the conversations
" for legitimate purposes not related to the gathering of
evidence concerning the crime for which [respondent] had been
indicted.'" 481 A.2d
155 , 160 (Me.1984) (quoting trial court). No prior holding of
this Court recognizes a Sixth Amendment violation in such
circumstances. As one court has put it, the Sixth
Amendment "speaks only to the situation where, in the absence of retained
counsel, statements are deliberately elicited from a defendant in
connection with a crime for which he has already been
indicted." United States v. Hinton, 543 F.2d 1002, 1015 (CA2), cert. denied sub nom. Carter v. United States, 429 U.S.
980 (1976). [ Footnote 2/3 ] Thus, in United States v. Henry, supra, at 447 U. S. 275 ,
n. 14, we quoted Disciplinary Rule 7-104(A)(1) of the American Bar
Association's Code of Professional Responsibility, which provides
that

															"'a lawyer shall not . . . [c]ommunicate or cause another to
communicate on the subject of the representation with
a Page 474 U. S. 188 party he knows to be represented by a lawyer in that
matter.'"

															(Emphasis added.) Our reference in Henry to this rule
illustrates that we have framed the Sixth Amendment issue in terms
of whether the State deliberately circumvented counsel with regard
to the "subject of representation." But where, as here, the
incriminating statements are gathered for "an alternative,
legitimate reason," ante at 474 U. S. 180 ,
wholly apart from the pending charges, no such deliberate
circumvention exists. The Court's opinion seems to rest on the
notion that the evidence here is excludable because "the State must have known' that its agent was likely to obtain
incriminating statements from the accused," ante at 474 U. S. 176 ,
n. 12, with respect to the crimes for which he was already
indicted. But the inquiry mandated by our holdings is whether the
State recorded the statements not merely in spite of, but because of that consequence. Cf. Wayte v. United
States, 470 U. S. 598 (1985). If the State is not seeking to elicit information with
respect to the crime for which the defendant is already indicted,
it cannot rationally be said that the State has "planned an
impermissible interference with the right to the assistance of
counsel." Henry, supra, at 447 U. S. 275 .
This case is a particularly inappropriate one for invoking the
right to counsel. The right to counsel recognized in Massiah was designed to preserve the integrity of the
trial. See 377 U.S. at 377 U. S. 204 .
Here respondent was under investigation because of his plans to
obstruct justice by killing an essential witness. There is no right
to consult an attorney for advice on committing crimes. See
United States v. Merritts, 527 F.2d 713, 716 (CA7 1975).
Indeed, any attorney who undertook to offer such advice would
undoubtedly be subject to sanction. Disciplinary Rule 7-102(A)(7)
of the Code of Professional Responsibility, for example, states "a
lawyer shall not . . . [c]ounsel or assist his client in conduct
that the lawyer knows to be illegal or fraudulent." Thus, there is
no warrant for vindicating respondent's right to consult
counsel. Page 474 U. S. 189 An observation of this Court in connection with the
attorney-client evidentiary privilege bears mention here:

															"The privilege takes flight if the relation is abused. A client
who consults an attorney for advice that will serve him in the
commission of a fraud will have no help from the law. He must let
the truth be told." Clark v. United States, 289 U. S.
1 , 289 U. S. 15 (1933). I would let the truth be told in this case rather than
exclude evidence that was the product of this police investigation
into activities designed to thwart the judicial process.

															Even though the Massiah rule is inapplicable to
situations where the government is gathering information related to
a separate crime, police misconduct need not be countenanced.
Accordingly, evidence obtained through a separate crimes
investigation should be admitted only

															"so long as investigating officers show no bad faith and do not
institute the investigation of the separate offense as a pretext
for avoiding the dictates of Massiah. " United States v. Darwin, 757 F.2d 1193, 1199 (CA11
1985). Here, the careful actions of Chief Keating and Detective
Kelley steered well clear of these prohibitions.

															Until today, the clearly prevailing view in the federal and
state courts was that Massiah and its successors did not
protect a defendant from the introduction of postindictment
statements deliberately elicited when the police undertook an
investigation of separate crimes. [ Footnote 2/4 ] As two leading commentators have
observed: Page 474 U. S. 190 "Even before [Brewer v.] Williams, [ 430 U.S.
387 (1977),] it was generally accepted that the right to
counsel did not bar contact with the defendant concerning other
offenses, particularly if the offenses were clearly unrelated
and it did not appear the charge was simply a pretext to gain
custody in order to facilitate the investigation. The more recent
cases recognize that [ Massiah and its progeny do] not
confer upon charged defendants immunity from investigation
concerning other crimes. This is especially true when the offense
under investigation is a new or ongoing one, such as illegal
efforts to thwart the forthcoming prosecution."

															1 W. LaFave & J. Israel, Criminal Procedure § 6.4, p. 470
(1984) (emphasis added) (footnotes omitted). Rather than expand Massiah beyond boundaries currently recognized, I would
take note of the observation that " Massiah certainly is
the decision in which Sixth Amendment protections have been
extended to their outermost point." Henry, 447 U.S. at 447 U. S. 282 (BLACKMUN, J., dissenting). I would not expand them more and well
beyond the limits of precedent and logic. III Even if I were prepared to join the Court in this enlargement of
the protections of the Sixth Amendment, I would have serious doubts
about also extending the reach of the exclusionary rule to cover
this case.

															"Cases involving Sixth Amendment deprivations are subject to the
general rule that Page 474 U. S. 191 remedies should be tailored to the injury suffered from the
constitutional violation, and should not unnecessarily infringe on
competing interests." United States v. Morrison, 449 U.
S. 361 , 449 U. S. 364 (1981). Application of the exclusionary rule here makes little
sense, as demonstrated by "weighing the costs and benefits of
preventing the use in the prosecution's case in chief of inherently
trustworthy tangible evidence." United States v. Leon, 468 U. S. 897 , 468 U. S. 907 (1984). With respect to the costs, applying the rule to cases where
the State deliberately elicits statements from a defendant in the
course of investigating a separate crime excludes evidence that is
"typically reliable and often the most probative information
bearing on the guilt or innocence of the defendant." Stone v.
Powell, 428 U. S. 465 , 428 U. S. 490 (1976). Moreover, because of the trustworthy nature of the
evidence, its admission will not threaten "the fairness of a trial
or . . . the integrity of the factfinding process." Brewer v.
Williams, 430 U. S. 387 , 430 U. S. 414 (1977) (POWELL, J., concurring). Hence, application of the rule to
cases like this one "deflects the truthfinding process," "often
frees the guilty," and may well "generat[e] disrespect for the law
and [the] administration of justice." Stone v. Powell,
supra, at 428 U. S.
490 -491. Against these costs, applying the rule here
appears to create precious little in the way of offsetting
"benefits." Like searches in violation of the Fourth Amendment, the
"wrong" that the Court condemns was "fully accomplished" by the
elicitation of comments from the defendant and "the exclusionary
rule is neither intended nor able to cure the invasion of the
defendant's rights which he has already suffered." Leon,
supra, at 468 U. S. 906 (internal quotation omitted). The application of the exclusionary
rule here must therefore be premised on deterrence of certain types
of conduct by the police. We have explained, however, that

															"[t]he deterrent purpose of the exclusionary rule necessarily
assumes that the police have engaged in willful, or at the very
least negligent, conduct which has deprived the defendant of
some Page 474 U. S. 192 right." United States v. Peltier, 422 U.
S. 531 , 422 U. S. 539 (1975). Here the trial court found that the State obtained
statements from respondent "for legitimate purposes not related to
the gathering of evidence concerning the crime for which
[respondent] had been indicted." Since the State was not trying to
build its theft case against respondent in obtaining the evidence,
excluding the evidence from the theft trial will not affect police
behavior at all. The exclusion of evidence "cannot be expected, and
should not be applied, to deter objectively reasonable law
enforcement activity." Leon, supra, at 468 U. S. 919 .
Indeed, as noted above, it is impossible to identify any police
"misconduct" to deter in this case. In fact, if anything, actions
by the police of the type at issue here should be encouraged. The
diligent investigation of the police in this case may have saved
the lives of several potential witnesses, and certainly led to the
prosecution and conviction of respondent for additional serious
crimes. It seems, then, that the Sixth Amendment claims at issue
here "closely parallel claims under the Fourth Amendment," Brewer, supra, at 430 U. S. 414 (POWELL, J., concurring), where we have
found the exclusionary rule to be inapplicable by weighing the
costs and benefits of its applications. See, e.g., United
States v. Leon, supra (exclusionary rule inapplicable where
officers rely in good faith on defective search warrant issued by
neutral magistrate); Stone v. Powell, supra (where full
opportunity to litigate Fourth Amendment issues has been afforded,
such issues may not be raised in a state habeas petition). If
anything, the argument for admission of the evidence here is even
stronger because "[t]his is not a case where . . . the
constable . . . blundered.'" United States v. Henry,
supra, at 447 U. S.
274 -275 (quoting People v. DeFore, 242 N.Y. 13,
21, 150 N.E. 585, 587 (1926) (Cardozo, J.)). Because the Court
today significantly and unjustifiably departs from our prior
holdings, I respectfully dissent. [ Footnote 2/1 ]

															Contrary to the Court's assertion that "the conversation ended
without Moulton's having said anything that incriminated him," ante at 474 U. S. 164 ,
Moulton and Colson in fact rehearsed a fabricated story that they
planned to use at trial:

															"[Moulton:] The parts I bought. I never denied that. I did buy
those. . . ."

															"[Colson:] The [M]ustang . . . same here."

															"[Moulton:] And the [M]ustang, we bought that?"

															"[Colson:] Yeah."

															"[Moulton:] Ok. It's just a coincidence that ah, they happened
to be . . . [h]ot or whatever. . . . You've got a bill of sale for
the Mustang. I got a bill of sale for parts. So, you know, what the
hell? What can they say?"

															Exh. S-3, Tr. of Dec. 14 Conversation 4-5.

															[ Footnote 2/2 ]

															After a break in the conversation, respondent took a deep sigh
and said:

															"[Moulton:] You know, I thought of a way to eliminate them.
Remember we were talking about it before?"

															"[Colson:] Yes, you thought of a way?"

															"[Moulton:] Yeah, but, ah, I don't think we ought to go for it.
. . ."

															"[Colson:] Well, let me [hear it]."

															"[Moulton:] Well you know those air guns. . . . They make little
darts for those little feather-back darts that you can put in there
--you've seen 'em. Those little darts, those little things about
that long. I [was] thinking just hollow the tip out like a needle
and just put . . . little . . . holes on the side, and you fill it
with a lethal injection and the shooting impact would shoot all the
stuff out of it into . . . the individuals body [and] poison
[th]em. There would be no noise."

															"[Colson:] Jesus. . . ."

															"[Moulton:] That's the only thing that runs through my brain . .
. you have a puncture wound, probably take about 20 or 30 minutes
to kick off, yeah, and the other problem is the poison, where . . .
are you going to get some poison? Small bottles."

															"[Colson:] What was that stuff you told me about once?"

															"[Moulton:] Calcium chlorine . . . , yeah, something like that,
just a small drop will make you look like you have a heart attack
and . . . you'd never, never, find it unless you were looking . . .
exactly for that drug. . . . Stops your heart."

															Exh. S-4, Tr. of Dec. 26 Meeting 18-20. Moulton then discussed
an alternative scheme for doing away with witnesses, based on
making explosives pursuant to directions contained in a magazine
that one of his "best friends" was sending. Moulton described him
as having belonged to "a motorcycle gang," and also suggested
ominously that he had "[p]robably snuffed one or two people." Id. at 21.

															[ Footnote 2/3 ]

															The Court's opinion seems to read Massiah as if it
definitively addresses situations where the police are
investigating a separate crime. This reading is belied by the Massiah Court's statement of its own holding:

															"We do not question that, in this case, as in many cases, it was
entirely proper to continue an investigation of the suspected
criminal activities of the defendant and his alleged confederates,
even though the defendant had already been indicted. All that we
hold is that the defendant's own incriminating statements, obtained
by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence
against him at his trial." Massiah v. United States, 377 U.
S. 201 , 377 U. S. 207 (1964) (first emphasis added). The reference to the "circumstances
here disclosed" must be to the fact that the Government, far from
pursuing a good faith investigation of different crimes, had
"instructed the informant to engage [Massiah] in conversation
relating to the crimes [for which he had already been indicted]." United States v. Henry, 447 U. S. 264 , 447 U. S. 276 (1980) (POWELL, J., concurring); Brief for Petitioner in Massiah v. United States, O.T. 1963 No.199 P. 4.

															[ Footnote 2/4 ] See United States v. DeWolf, 696 F.2d 1, 3 (CA1 1982); Grieco v. Meachum, 533 F.2d 713, 717-718 (CA1 1976), cert. denied sub nom. Cassesso v. Meachum, 429 U.S. 858
(1976); United States v. Hinton, 543 F.2d 1002, 1015
(CA2), cert. denied sub nom. Carter v. United States, 429
U.S. 980 (1976); United States v. Merritts, 527 F.2d 713,
716 (CA7 1975); United States v. Taxe, 540 F.2d 961,
968-969 (CA9 1976), cert. denied, 429 U.S. 1040 (1977); United States v. Darwin, 757 F.2d 1193, 1200 (CA11 1985); Crawford v. State, 377
So. 2d 145 , 156 (Ala.Crim.App.), aff'd, 377 So. 2d
159 (Ala. 1979), vacated and remanded, 448 U.S. 904
(1980); Deskins v. Commonwealth, 512
S.W.2d 520 , 526 (Ky.1974), cert. denied, 419 U.S. 1122
(1975); Hall v. State, 47 Md.App. 590, 596, 425 A.2d 227 , 231 (1981), aff'd, 292 Md. 683, 441 A.2d
708 (1982); People v. Mealer, 57 N.Y.2d 214, 218, 441
N.E.2d 1080, 1082 (1982); People v. Costello, 101
App.Div.2d 244, 247, 476 N.Y.S.2d 210, 212 (1984); Hummel v.
Commonwealth, 219 Va. 252, 257, 247 S.E.2d 385, 388 (1978), cert. denied, 440 U.S. 935 (1979). Cf. United States
v. Moschiano, 695 F.2d 236, 243 (CA7 1982), cert.
denied, 464 U.S. 831 (1983); United States v. Boffa, 89 F.R.D. 523 (Del. 1981). But see Mealer v. Jones, 741
F.2d 1451, 1455 (CA2 1984), cert. denied, 471 U.S. 1006
(1985); State v. Ortiz, 131 Ariz. 195, 202, 639 P.2d 1020 ,
1028 (1981), cert. denied, 456 U.S. 984 (1982).