U.S. Supreme Court Edwards v. Arizona, 451
U.S. 477 (1981) Edwards v. Arizona No. 79-5269 Argued November 5,
1980 Decided May 18, 1981 451
U.S. 477 CERTIORARI TO THE SUPREME COURT OF
ARIZONA Syllabus After being arrested on a state criminal charge, and after being
informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 ,
petitioner was questioned by the police on January 19, 1976, until
he said that he wanted an attorney. Questioning then ceased, but on
January 20, police officers came to the jail and, after stating
that they wanted to talk to him and again informing petitioner of
his Miranda rights, obtained his confession when he said
that he was willing to talk. The trial court ultimately denied
petitioner's motion to suppress his confession, finding the
statement to be voluntary, and he was thereafter convicted. The
Arizona Supreme Court held that, during the January 20 meeting, he
waived his right to remain silent and his right to counsel when he
voluntarily gave his statement after again being informed of his
rights. Held: The use of petitioner's confession against him at
his trial violated his right under the Fifth and Fourteenth
Amendments to have counsel present during custodial interrogation,
as declared in Miranda, supra. Having exercised his right
on January 19 to have counsel present during interrogation,
petitioner did not validly waive that right on the 20th. Pp. 451 U. S.
481 -487.

															(a) A waiver of the right to counsel, once invoked, not only
must be voluntary, but also must constitute a knowing and
intelligent relinquishment of a known right or privilege. Here,
however, the state courts applied an erroneous standard for
determining waiver by focusing on the voluntariness of petitioner's
confession, rather than on whether he understood his right to
counsel and intelligently and knowingly relinquished it. Pp. 451 U. S.
482 -84.

															(b) When an accused has invoked his right to have counsel
present during custodial interrogation, a valid waiver of that
right cannot be established by showing only that he responded to
police-initiated interrogation after being again advised of his
rights. An accused, such as petitioner, having expressed his desire
to deal with the police only through counsel, is not subject to
further interrogation until counsel has been made available to him,
unless the accused has himself initiated further communication,
exchanges, or conversations with the police. Here, the
interrogation of petitioner on January 20 was at the instance Page 451 U. S. 478 of the authorities, and his confession, made without having had
access to counsel, did not amount to a valid waiver, and hence was
inadmissible. Pp. 451 U. S.
484 -487.

															122 Ariz. 206, 594 P.2d 72 ,
reversed.

															WHITE, J., delivered the opinion of the Court, in which BRENNAN,
STEWART, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER,
C.J., filed an opinion concurring in the judgment, post, p. 487. POWELL, J., filed an opinion concurring in the result, in
which REHNQUIST, J., joined, post, p. 488.

															JUSTICE WHITE delivered the opinion of the Court.

															We granted certiorari in this case, 446 U.S. 950 (1980), limited
to Question 1 presented in the petition, which in relevant part
was

															"whether the Fifth, sixth, and Fourteenth Amendments require
suppression of a post-arrest confession, which was obtained after
Edwards had invoked his right to consult counsel before further
interrogation. . . ." I On January 19, 1976, a sworn complaint was filed against Edwards
in Arizona state court charged him with robbery, burglary, and
first-degree murder. [ Footnote
1 ] An arrest warrant was issued pursuant to the complaint, and
Edwards was arrested at his home later that same day. At the police
station, he was informed of his rights as required by Miranda
v. Arizona, 384 U. S. 436 (1966). Petitioner stated that he understood his rights, and was
willing to submit to questioning. After Page 451 U. S. 479 being told that another suspect already in custody had
implicated him in the crime, Edwards denied involvement and gave a
taped statement presenting an alibi defense. He then sought to
"make a deal." The interrogating officer told him that he wanted a
statement, but that he did not have the authority to negotiate a
deal. The officer provided Edwards with the telephone number of a
county attorney. Petitioner made the call, but hung up after a few
moments. Edwards then said: "I want an attorney before making a
deal." At that point, questioning ceased and Edwards was taken to
county jail.

															At 9 :15 the next morning, two detectives, colleagues of the
officer who had interrogated Edwards the previous night, came to
the jail and asked to see Edwards. When the detention officer
informed Edwards that the detectives wished to speak with him, he
replied that he did not want to talk to anyone. The guard told him
that "he had" to talk, and then took him to meet with the
detectives. The officers identified themselves, stated they wanted
to talk to him, and informed him of his Miranda rights.
Edwards was willing to talk, but he first wanted to hear the taped
statement of the alleged accomplice who had implicated him.
[ Footnote 2 ] After listening to
the tape for several minutes, petitioner said that he would make a
statement so long as it was not tape-recorded. The detectives
informed him that the recording was irrelevant, since they could
testify in court concerning whatever he said. Edwards replied:
"I'll tell you anything you want to know, but I don't want it on
tape." He thereupon implicated himself in the crime.

															Prior to trial, Edwards moved to suppress his confession on the
ground that his Miranda rights had been violated when the
officers returned to question him after he had invoked his right to
counsel. The trial court initially granted Page 451 U. S. 480 the motion to suppress, [ Footnote 3 ] but reversed its ruling when presented with a
supposedly controlling decision of a higher Arizona court.
[ Footnote 4 ] The court stated
without explanation that it found Edwards' statement to be
voluntary. Edwards was tried twice and convicted. [ Footnote 5 ] Evidence concerning his
confession was admitted at both trials.

															On appeal, the Arizona Supreme Court held that Edwards had
invoked both his right to remain silent and his right to counsel
during the interrogation conducted on the night of January 19.
[ Footnote 6 ] 122 Ariz. 206, 594 P.2d 72 .
The court then went on to determine, however, that Edwards had
waived both rights during the January 20 meeting when he
voluntarily gave his statement to the detectives after again being
informed that he need not answer questions and that he need not
answer without the advice of counsel: "The trial court's finding
that the waiver and confession were voluntarily and knowingly made
is upheld." Id. at 212, 594 P.2d at 78.

															Because the use of Edward's confession against him at his trial
violated his rights under the Fifth and Fourteenth Amendments as
construed in Miranda v. Arizona, supra, we reverse the
judgment of the Arizona Supreme Court. [ Footnote 7 ] Page 451 U. S. 481 II In Miranda v. Arizona, the Court determined that the
Fifth and Fourteenth Amendments' prohibition against compelled
self-incrimination required that custodial interrogation be Page 451 U. S. 482 preceded by advice to the putative defendant that he has the
right to remain silent and also the right to the presence of an
attorney. 384 U.S. at 384 U. S. 479 .
The Court also indicated the procedures to be followed subsequent
to the warnings. If the accused indicates that he wishes to remain
silent, "the interrogation must cease." If he requests counsel,
"the interrogation must cease until an attorney is present." Id. at 384 U. S.
474 . Miranda thus declared that an accused has a Fifth and
Fourteenth Amendment right to have counsel present during custodial
interrogation. Here, the critical facts as found by the Arizona
Supreme Court are that Edwards asserted his right to counsel and
his right to remain silent on January 19, but that the police,
without furnishing him counsel, returned the next morning to
confront him and as a result of the meeting secured incriminating
oral admissions. Contrary to the holdings of the state courts,
Edwards insists that, having exercised his right on the 19th to
have counsel present during interrogation, he did not validly waive
that right on the 20th. For the following reasons, we agree.

															First, the Arizona Supreme Court applied an erroneous standard
for determining waiver where the accused has specifically invoked
his right to counsel. It is reasonably clear under our cases that
waivers of counsel must not only be voluntary, but must also
constitute a knowing and intelligent relinquishment or abandonment
of a known right or privilege, a matter which depends in each case
"upon the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938). See Faretta v. California, 422 U.
S. 806 , 422 U. S. 835 (1975); North Carolina v. Butler, 441 U.
S. 369 , 441 U. S.
374 -375 (1979); Brewer v.
Williams , 430 U. S. 387 , Page 451 U. S. 483 430 U. S. 404 (1977); Fare v. Michael C., 442 U.
S. 707 , 442 U. S.
724 -725 (1979).

															Considering the proceedings in the state courts in the light of
this standard, we note that, in denying petitioner's motion to
suppress, the trial court found the admission to have been
"voluntary," App. 3, 95, without separately focusing on whether
Edwards had knowingly and intelligently relinquished his right to
counsel. The Arizona Supreme Court, in a section of its opinion
entitled "Voluntariness of Waiver," stated that, in Arizona,
confessions are prima facie involuntary, and that the
State had the burden of showing by a preponderance of the evidence
that the confession was freely and voluntarily made. The court
stated that the issue of voluntariness should be determined based
on the totality of the circumstances as it related to whether an
accused's action was "knowing and intelligent and whether his will
[was] overborne." 122 Ariz. at 212, 594 P.2d at 78. Once the trial
court determines that "the confession is voluntary, the finding
will not be upset on appeal absent clear and manifest error." Ibid. The court then upheld the trial court's finding that
the "waiver and confession were voluntarily and knowingly made." Ibid. In referring to the necessity to find Edwards' confession
knowing and intelligent, the State Supreme Court cited Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 226 (1973). Yet, it is clear that Schneckloth does not control
the issue presented in this case. T he issue in Schneckloth was under what conditions an individual could
be found to have consented to a search and thereby waived his
Fourth Amendment rights. The Court declined to impose the
"intentional relinquishment or abandonment of a known right or
privilege" standard, and required only that the consent be
voluntary under the totality of the circumstances. The Court
specifically noted that the right to counsel was a prime example of
those rights requiring the special protection of the knowing and
intelligent waiver standard, id. at 412 U. S. 241 ,
but held that "[t]he considerations Page 451 U. S. 484 that informed the Court's holding in Miranda are simply
inapplicable in the present case." Id. at 412 U. S. 246 . Schneckloth itself thus emphasized that the voluntariness
of a consent or an admission on the one hand, and a knowing and
intelligent waiver on the other, are discrete inquiries. Here,
however sound the conclusion of the state courts as to the
voluntariness of Edwards' admission may be, neither the trial court
nor the Arizona Supreme Court undertook to focus on whether Edwards
understood his right to counsel and intelligently and knowingly
relinquished it. It is thus apparent that the decision below
misunderstood the requirement for finding a valid waiver of the
right to counsel, once invoked.

															Second, although we have held that, after initially being
advised of his Miranda rights, the accused may himself
validly waive his rights and respond to interrogation, see
North Carolina v. Butler, supra, at 441 U. S.
372 -376, the Court has strongly indicated that
additional safeguards are necessary when the accused asks for
counsel; and we now hold that, when an accused has invoked his
right to have counsel present during custodial interrogation, a
valid waiver of that right cannot be established by showing only
that he responded to further police-initiated custodial
interrogation, even if he has been advised of his rights. [ Footnote 8 ] We further hold that an
accused, such as Edwards, having expressed his desire to deal with
the police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available Page 451 U. S. 485 to him unless the accused himself initiates further
communication, exchanges, or conversations with the police. Miranda itself indicated that the assertion of the
right to counsel was a significant event, and that, once exercised
by the accused, "the interrogation must cease until an attorney is
present." 384 U.S. at 384 U. S. 474 .
Our later cases have not abandoned that view. In Michigan v.
Mosley, 423 U. S. 96 (1975), the Court noted that Miranda had distinguished
between the procedural safeguards triggered by a request to remain
silent and a request for an attorney, and had required that
interrogation cease until an attorney was present only if the
individual stated that he wanted counsel. 423 U.S. at 423 U. S. 104 ,
n. 10; see also id. at 423 U. S.
109 -111 (WHITE, J., concurring). In Fare v. Michael
C., supra, at 442 U. S. 719 ,
the Court referred to Miranda's "rigid rule that an
accused's request for an attorney is per se an invocation
of his Fifth Amendment rights, requiring that all interrogation
cease." And just last Term, in a case where a suspect in custody
had invoked his Miranda right to counsel, the Court again
referred to the "undisputed right" under Miranda to remain
silent and to be free of interrogation "until he had consulted with
a lawyer." Rhode Island v. Innis, 446 U.
S. 291 , 446 U. S. 298 (1980). We reconfirm these views and, to lend them substance,
emphasize that it is inconsistent with Miranda and its
progeny for the authorities, at their instance, to reinterrogate an
accused in custody if he has clearly asserted his right to
counsel.

															In concluding that the fruits of the interrogation initiated by
the police on January 20 could not be used against Edwards, we do
not hold or imply that Edwards was powerless to countermand his
election or that the authorities could in no event use any
incriminating statements made by Edwards prior to his having access
to counsel. Had Edwards initiated the meeting on January 20,
nothing in the Fifth and Fourteenth Amendments would prohibit the
police from merely listening to his voluntary, volunteered
statements and using them against him at the trial. The Fifth
Amendment right Page 451 U. S. 486 identified in Miranda is the right to have counsel
present at any custodial interrogation. Absent such interrogation,
there would have been no infringement of the right that Edwards
invoked, and there would be no occasion to determine whether there
had been a valid waiver. Rhode Island v. Innis, supra, makes this sufficiently clear. 446 U.S. at 446 U. S. 298 ,
n. 2. [ Footnote 9 ]

															But this is not what the facts of this case show. Here, the
officers conducting the interrogation on the evening of January Page 451 U. S. 487 19 ceased interrogation when Edwards requested counsel as he had
been advised he had the right to do. The Arizona Supreme Court was
of the opinion that this was a sufficient invocation of his Miranda rights, and we are in accord. It is also clear
that, without making counsel available to Edwards, the police
returned to him the next day. This was not at his suggestion or
request. Indeed, Edwards informed the detention officer that he did
not want to talk to anyone. At the meeting, the detectives told
Edwards that they wanted to talk to him, and again advised him of
his Miranda rights. Edwards stated that he would talk, but
what prompted this action does not appear. He listened at his own
request to part of the taped statement made by one of his alleged
accomplices and then made an incriminating statement, which was
used against him at his trial. We think it is clear that Edwards
was subjected to custodial interrogation on January 20 within the
meaning of Rhode Island v. Innis, supra, and that this
occurred at the instance of the authorities. His statement, made
without having had access to counsel, did not amount to a valid
waiver, and hence was inadmissible. [ Footnote 10 ]

															Accordingly, the holding of the Arizona Supreme Court that
Edwards had waived his right to counsel was infirm, and the
judgment of that court is reversed. So ordered. [ Footnote 1 ]

															The facts stated in text are for the most part taken from the
opinion of the Supreme Court of Arizona.

															[ Footnote 2 ]

															It appears from the record that the detectives had brought the
tape-recording with them.

															[ Footnote 3 ]

															The trial judge emphasized that the detectives had met with
Edwards on January 20 without being requested by Edwards to do so,
and concluded that they had ignored his request for counsel made
the previous evening. App. 91-93.

															[ Footnote 4 ]

															The case was State v. Travis, 26 Ariz.App. 24, 545 P.2d
986 (1976).

															[ Footnote 5 ]

															The jury in the first trial was unable to reach a verdict.

															[ Footnote 6 ]

															This issue was disputed by the State. The court, while finding
that the question was arguable, held that Edwards' request for an
attorney to assist him in negotiating a deal was "sufficiently
clear" within the context of the interrogation that it "must be
interpreted as a request for counsel and as a request to remain
silent until counsel was present." 122 Ariz. at 211, 594 P.2d at
77.

															[ Footnote 7 ]

															We thus need not decide Edwards' claim that the State deprived
him of his right to counsel under the Sixth and Fourteenth
Amendments as construed and applied in Massiah v. United
States, 377 U. S. 201 (1964). In that case, the Court held that the Sixth Amendment right
to counsel arises whenever an accused has been indicted or
adversary criminal proceedings have otherwise begun, and that this
right is violated when admissions are subsequently elicited from
the accused in the absence of counsel. While initially conceding in
its opening brief on the merits that Edwards' right to counsel
under Massiah attached immediately after he was formally
charged, the State in its supplemental brief and during oral
argument took the position that under Kirby v. Illinois, 406 U. S. 682 , 406 U. S.
689 -690 (1972), and Moore v. Illinois, 434 U. S. 220 , 434 U. S. 226 227 (1977), the filing of the formal complaint did not constitute
the "adversary judicial criminal proceedings" necessary to trigger
the Sixth Amendment right to counsel. Under the State
Constitution,

															"[n]o person shall be prosecuted criminally in any court of
record for felony or misdemeanor, otherwise than by information or
indictment; no person shall be prosecuted for felony by information
without having had a preliminary examination before a magistrate or
having waived such preliminary examination."

															Ariz.Const., Art. 2, § 30. The State contends that the Sixth
Amendment right to counsel does not attach until either the
constitutionally required indictment or information is filed or at
least no earlier than the preliminary hearing to which a defendant
is entitled if the matter proceeds by complaint. Under Arizona law,
a felony prosecution may be commenced by way of a complaint,
Ariz.Rule of Criminal Procedure 2.2. The complaint is a "written
statement of the essential facts constituting a public offense,
made upon oath before a magistrate," Rule 2.3, upon which the
magistrate either issues an arrest warrant or dismisses the
complaint. Rule 2.4. Once arrested, the accused must be taken
before the magistrate for a hearing. Rule 4.1. At that hearing, the
magistrate ascertains the accused's true name and address, and
informs him of the charges against him, his right to counsel, his
right to remain silent, and his right to a preliminary hearing if
charged via complaint. Rule 4.2. Unless waived, the preliminary
hearing must take place no later than 10 days after the defendant
is placed in custody. Rule 5.1. The purpose of the hearing is to
determine whether probable cause exists to hold the defendant for
trial. Rule 5.3. Against this background and in support of its
position, the State relies on Moore v. Illinois, supra, where, after recognizing that, under Illinois law, "[t]he
prosecution in this case was commenced . . . when the victim's
complaint was filed in court," we noted that "adversary judicial
criminal proceedings" were initiated when the ensuing preliminary
hearing occurred. Moore, supra, at 434 U. S. 228 . Cf. United States v. Duvall, 537 F.2d 15, 20-22 (CA2) (the
filing of a complaint and the issuance of an arrest warrant does
not trigger the right to counsel under the Sixth Amendment, that
right accruing only upon further proceedings), cert
denied, 426 U.S. 950 (1976). The Arizona Supreme Court did not
address the Sixth Amendment question, nor do we.

															[ Footnote 8 ]

															In Brewer v. Williams, 430 U.
S. 387 (1977), where, as in Massiah v. United
States, 377 U. S. 201 (1964), the Sixth Amendment right to counsel had accrued, the Court
held that a valid waiver of counsel rights should not be inferred
from the mere response by the accused to overt or more subtle forms
of interrogation -- or other efforts to elicit incriminating
information. In Massiah and Brewer, counsel had
been engaged or appointed and the admissions in question were
elicited in his absence. But in McLeod v. Ohio, 381 U. S. 356 (1965), we summarily reversed a decision that the police could
elicit information after indictment even though counsel had not yet
been appointed.

															[ Footnote 9 ]

															If, as frequently would occur in the course of a meeting
initiated by the accused, the conversation is not wholly one-sided,
it is likely that the officers will say or do something that
clearly would be "interrogation." In that event, the question would
be whether a valid waiver of the right to counsel and the right to
silence had occurred, that is, whether the purported waiver was
knowing and intelligent and found to be so under the totality of
the circumstances, including the necessary fact that the accused,
not the police, reopened the dialogue with the authorities.

															Various decisions of the Courts of Appeals are to the effect
that a valid waiver of an accused's previously invoked Fifth
Amendment right to counsel is possible. See, e.g., White v.
Finkbeiner, 611 F.2d 186, 191 (CA7 1979) ("in certain
instances, for various reasons, a person in custody who has
previously requested counsel may knowingly and voluntarily decide
that he no longer wishes to be represented by counsel"), cert.
pending, No. 79-6601; Kennedy v. Fairman, 618 F.2d
1242 (CA7 1980); United States v. Rodriguez-Gastelum, 569
F.2d 482, 486 (CA9) (en banc) (stating that it makes no sense to
hold that, once an accused has requested counsel, "[he] may never,
until he has actually talked with counsel, change his mind and
decide to speak with the police without an attorney being
present"), cert. denied, 436 U.S. 919 (1978). See
generally Cobbs v. Robinson, 528 F.2d 1331, 1342 (CA2 1975); United States v. Grant, 549 F.2d 942 (CA4 1977), vacated on other grounds sub nom. Whitehead v. United
States, 435 U.S. 912 (1978); United States v. Hart, 619 F.2d
325 (CA4 1980); United States v. Hauck, 586 F.2d 1296 (CA8
1978). The rule in the Fifth Circuit is that a knowing and
intelligent waiver cannot be found once the Fifth Amendment right
to counsel has been clearly invoked unless the accused initiates
the renewed contact. See, e.g., United States v. Massey, 550 F.2d 300 (1977), United States v. Priest, 409 F.2d 491
(1969). Waiver is possible, however, when the request for counsel
is equivocal. Nash v. Estelle, 597 F.2d 513 (CA5 1979) (en
banc). See Thompson v. Wainwright, 601 F.2d 768 (CA5
1979).

															[ Footnote 10 ]

															We need not decide whether there would have been a valid waiver
of counsel had the events of January 20 been the first and only
interrogation to which Edwards had been subjected. Cf. North
Carolina v. Butler, 441 U. S. 369 (1979).

															CHIEF JUSTICE BURGER, concurring in the judgment.

															I concur only in the judgment, because I do not agree that
either any constitutional standard or the holding of Miranda v.
Arizona, 384 U. S. 436 (1966) -- as distinguished from its dicta -- calls for a special
rule as to how an accused in custody may waive the right to be free
from interrogation. The extraordinary protections afforded a person
in custody suspected of criminal conduct are not without a valid
basis, but, Page 451 U. S. 488 as with all "good" things, they can be carried too far. The
notion that any "prompting" of a person in custody is somehow evil per se has been rejected. Rhode Island v. Innis, 446 U. S. 291 (1980). For me, the inquiry in this setting is whether resumption
of interrogation is a result of a voluntary waiver, and that
inquiry should be resolved under the traditional standards
established in Johnson v. Zerbst, 304 U.
S. 458 , 304 U. S. 464 (1938):

															"A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege. The determination of
whether there has been an intelligent waiver . . . must depend, in
each case, upon the particular facts and circumstances surrounding
that case, including the background, experience, and conduct of the
accused." Accord, e.g., Fare v. Michael C., 442 U.
S. 707 (1979); North Carolina v. Butler, 441 U. S. 369 (1979). In this case, the Supreme Court of Arizona described the
situation as follows:

															"When the detention officer told Edwards that the detectives
were there to see him, he told the officer that he did not wish to
speak to anyone. The officer told him that he had to. "

															122 Ariz. 206, 209, 594 P.2d 72 , 75
(1979) (emphasis added). This is enough for me, and, on this
record, the Supreme Court of Arizona erred in holding that the
resumption of interrogation was the product of a voluntary waiver,
such as I found to be the situation in both Innis, supra, at 446 U. S. 304 (concurring opinion), and Brewer v. Williams, 430 U.
S. 387 , 430 U. S.
417 -418 (1977) (dissenting opinion).

															JUSTICE POWELL, with whom JUSTICE REHNQUIST joins, concurring in
the result.

															Although I agree that the judgment of the Arizona Supreme Court
must be reversed, I do not join the Court's opinion, because I am
not sure what it means. Page 451 U. S. 489 I can agree with much of the opinion. It states the settled
rule:

															"It is reasonably clear under our cases that waivers of counsel
must not only be voluntary, but must also constitute a knowing and
intelligent relinquishment or abandonment of a known right or
privilege, a matter which depends in each case 'upon the particular
facts and circumstances surrounding that case, including the
background, experience and conduct of the accused.' Johnson v.
Zerbst, 304 U. S. 458 , 304 U. S.
464 (1938). See Faretta v. California, 422 U. S.
806 , 422 U. S. 835 (1975); North Carolina v. Butler, 441 U. S.
369 , 441 U. S. 374 -375 (1979); Brewer v. Williams, 430 U. S. 387 , 430 U. S.
404 (1977); Fare v. Michael C., 442 U. S.
707 , 442 U. S. 724 -725
(1979)." Ante at 451 U. S.
482 -483. I have thought it settled law, as these cases
tell us, that one accused of crime may waive any of the
constitutional safeguards -- including the right to remain silent,
to jury trial, to call witnesses, to cross-examine one's accusers,
to testify in one's own behalf, and -- of course -- to have
counsel. Whatever the right, the standard for waiver is whether the
actor fully understands the right in question and voluntarily
intends to relinquish it.

															In its opinion today, however, the Court -- after reiterating
the familiar principles of waiver -- goes on to say:

															"We further hold that an accused, such as Edwards, having
expressed his desire to deal with the police only through counsel,
is not subject to further interrogation by the authorities until
counsel has been made available to him, unless the accused
[has] himself initiate[d] further communication, exchanges, or
conversations with the police. " Ante at 451 U. S.
484 -485 (emphasis added). In view of the emphasis placed
on "initiation," see also ante at 451 U. S.
485 -486, and n. 9, I find the Court's opinion unclear.
If read to create a new per se rule, requiring a threshold
inquiry Page 451 U. S. 490 as to precisely who opened any conversation between an accused
and state officials, I cannot agree. I would not superimpose a new
element of proof on the established doctrine of waiver of
counsel.

															Perhaps the Court's opinion can be read as not departing from
established doctrine. Accepting the formulation quoted above, two
questions are identifiable: (i) was there, in fact,
"interrogation," see Rhode Island v. Innis, 446 U.
S. 291 (1980), and (ii) did the police "initiate" it?
Each of these questions is, of course, relevant to the
admissibility of a confession. In this case, for example, it is
clear that Edwards was taken from his cell against his will and
subjected to renewed interrogation. Whether this is described as
police-"initiated" interrogation or in some other way, it clearly
was questioning under circumstances incompatible with a voluntary
waiver of the fundamental right to counsel.

															But few cases will be as clear as this one. Communications
between police and a suspect in custody are commonplace. It is
useful to contrast the circumstances of this case with typical, and
permissible, custodial communications between police and a suspect
who has asked for counsel. For example, police do not impermissibly
"initiate" renewed interrogation by engaging in routine
conversations with suspects about unrelated matters. And police
legitimately may inquire whether a suspect has changed his mind
about speaking to them without an attorney. E.g., State v.
Turner, 32 Ore.App. 61, 65, 573 P.2d
326 , 327 (1978); see State v. Crisler, 285 N.W.2d
679 , 682 (Minn.1979); State v. Marcum, 24 Wash. App.
441, 445-446, 601 P.2d 975, 978 (1979). It is not unusual for a
person in custody who previously has expressed an unwillingness to
talk or a desire to have a lawyer to change his mind and even
welcome an opportunity to talk. Nothing in the Constitution erects
obstacles that preclude police from ascertaining whether a suspect
has reconsidered his original decision. As JUSTICE WHITE has
observed, this Court consistently has "rejected any
paternalistic Page 451 U. S. 491 rule protecting a defendant from his intelligent and voluntary
decisions about his own criminal case." Michigan v.
Mosley, 423 U. S. 96 , 423 U. S. 109 (1975) (WHITE, J., concurring in result). [ Footnote 2/1 ]

															In sum, once warnings have been given and the right to counsel
has been invoked, the relevant inquiry -- whether the suspect now
desires to talk to police without counsel -- is a question of fact
to be determined in light of all of the circumstances. Who
"initiated" a conversation may be relevant to the question of
waiver, but it is not the sine qua non to the inquiry. The
ultimate question is whether there was a free and knowing waiver of
counsel before interrogation commenced.

															If the Court's opinion does nothing more than restate these
principles, I am in agreement with it. I hesitate to join the
opinion only because of what appears to be an undue, and undefined,
emphasis on a single element: "initiation." As JUSTICE WHITE has
noted, the Court in Miranda v. Arizona, 384 U.
S. 436 (1965), Page 451 U. S. 492 imposed a general prophylactic rule that is not manifestly
required by anything in the text of the Constitution. Id. at 384 U. S. 526 (WHITE, J., dissenting); see Michigan v. Tucker, 417 U. S. 433 , 417 U. S.
443 -444 (1974). Miranda itself recognized,
moreover, that counsel's assistance can be waived. 384 U.S. at 384 U. S. 475 (opinion of Warren, C.J.). Waiver always has been evaluated under
the general formulation of the Zerbst standard quoted
above. My concern is that the Court's opinion today may be read as
"constitutionalizing" not the generalized Zerbst standard,
but a single element of fact among the various facts that may be
relevant to determining whether there has been a valid waiver.
[ Footnote 2/2 ]

															[ Footnote 2/1 ]

															JUSTICE WHITE noted in Michigan v. Mosley: "Although a recently arrested individual may have indicated an
initial desire not to answer questions, he would nonetheless want
to know immediately -- if it were true -- that his ability to
explain a particular incriminating fact or to supply an alibi for a
particular time period would result in his immediate release.
Similarly, he might wish to know -- if it were true -- that (1) the
case against him was unusually strong, and that (2) his immediate
cooperation with the authorities in the apprehension and conviction
of others or in the recovery of property would redound to his
benefit in the form of a reduced charge."

															423 U.S. at 423 U. S. 109 ,
n. 1.

															In Michigan v. Mosley, of course, the question was
whether a suspect who had invoked his right to remain silent later
could change his mind and speak to police. The facts of Mosley differ somewhat from the present case, because here
petitioner had requested counsel. It is nevertheless true in both
cases that

															"a blanket prohibition against the taking of voluntary
statements or a permanent immunity from further interrogation,
regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to
legitimate police investigative activity, and deprive suspects of
an opportunity to make informed and intelligent assessments of
their interests." Id. at 423 U. S. 102 (opinion of STEWART, J.).

															[ Footnote 2/2 ]

															Such a step should be taken only if it is demonstrably clear
that the traditional waiver standard is ineffective. There is no
indication, in the multitude of cases that come to us each Term,
that Zerbst and its progeny have failed to protect
constitutional rights.


U.S. Supreme Court Oregon v. Bradshaw, 462
U.S. 1039 (1983) Oregon v. Bradshaw No. 81-1857 Argued March 28, 1983 Decided June 23, 1983 462
U.S. 1039 CERTIORARI TO THE COURT OF APPEALS
OF OREGON Syllabus During the investigation of the death of a person whose body had
been found in his wrecked pickup truck, respondent was questioned
at the police station, where he was advised of his Miranda rights, and later arrested for furnishing liquor to the victim, a
minor, and again advised of his Miranda rights. Respondent
denied his involvement, and asked for an attorney. Subsequently,
while being transferred from the police station to a jail,
respondent inquired of a police officer, "Well, what is going to
happen to me now?" The officer answered that respondent did not
have to talk to him, and respondent said he understood. There
followed a discussion between respondent and the officer as to
where respondent was being taken and the offense with which he
would be charged. The officer suggested that respondent take a
polygraph examination, which he did, after another reading of his Miranda rights. When the examiner told respondent that he
did not believe respondent was telling the truth, respondent
recanted his earlier story and admitted that he had been driving
the truck in question and that he had consumed a considerable
amount of alcohol and had passed out at the wheel of the truck
before it left the highway. Respondent was charged with
first-degree manslaughter, driving while under the influence of
intoxicants, and driving while his license was revoked. His motion
to suppress his statements admitting his involvement was denied,
and he was found guilty after a bench trial. The Oregon Court of
Appeals reversed, holding that the inquiry respondent made of the
police officer while being transferred to jail did not "initiate" a
conversation with the officer, and that therefore the statements
growing out of this conversation should have been excluded from
evidence under Edwards v. Arizona, 451 U.
S. 477 . Held: The judgment is reversed, and the case is
remanded.

															54 Ore.App. 949, 636
P.2d 1011 , reversed and remanded.

															JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE O'CONNOR, concluded that respondent's Fifth Amendment
rights were not violated. Pp. 462 U. S.
1044 -1047.

															(a) The Oregon Court of Appeals misapprehended the test laid
down in Edwards, where it was held that, after the right
to counsel has been asserted by an accused, further interrogation
should not take place "unless the accused himself initiates further
communication, exchanges, or conversations Page 462 U. S. 1040 with the police." 451 U.S. at 451 U. S. 485 .
It was not held in that case that the "initiation" of a
conversation by an accused such as respondent would amount to a
waiver of a previously invoked right to counsel. The Oregon court
erred in thinking that an "initiation" of a conversation by an
accused not only satisfied the Edwards rule, but, ex
proprio vigore, suffices to show a waiver of the previously
asserted right to counsel. Pp. 1044-1045.

															(b) Here, in asking "Well, what is going to happen to me now?"
respondent "initiated" further conversation. His statement evinced
a willingness and a desire for a generalized discussion about the
investigation, and was not merely a necessary inquiry arising out
of the incidents of the custodial relationship. Pp. 462 U. S.
1045 -10466.

															(c) Since there was no violation of the Edwards rule in
this case, the next inquiry is whether, in light of the totality of
the circumstances, respondent made a knowing and intelligent waiver
of his right to have counsel present. The trial court, based on its
firsthand observation of the witnesses, found a waiver; there is no
reason to dispute that finding. Pp. 462 U. S.
1046 -1047.

															JUSTICE POWELL concluded that a two-step analysis is
unnecessary. In the circumstances of the case, it is sufficient
that respondent knowingly and intelligently waived his right to
counsel. Pp. 462 U. S.
1050 -1051.

															REHNQUIST, J., announced the judgment of the Court and delivered
an opinion, in which BURGER, C.J., and WHITE and O'CONNOR, JJ.,
joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 462 U. S.
1047 . MARSHALL, J., filed a dissenting opinion, in which
BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 462 U. S.
1051 .

															JUSTICE REHNQUIST announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE O'CONNOR joined.

															After a bench trial in an Oregon trial court, respondent James
Edward Bradshaw was convicted of the offenses of Page 462 U. S. 1041 first-degree manslaughter, driving while under the influence of
intoxicants, and driving while his license was revoked. The Oregon
Court of Appeals reversed his conviction, holding that an inquiry
he made of a police officer at the time he was in custody did not
"initiate" a conversation with the officer, and that therefore
statements by the respondent growing out of that conversation
should have been excluded from evidence under Edwards v.
Arizona, 451 U. S. 477 (1981). We granted certiorari to review this determination. 459
U.S. 966 (1982).

															In September, 1980, Oregon police were investigating the death
of one Lowell Reynolds in Tillamook County. Reynolds' body had been
found in his wrecked pickup truck, in which he appeared to have
been a passenger at the time the vehicle left the roadway, struck a
tree and an embankment, and finally came to rest on its side in a
shallow creek. Reynolds had died from traumatic injury, coupled
with asphyxia by drowning. During the investigation of Reynolds'
death, respondent was asked to accompany a police officer to the
Rockaway Police Station for questioning.

															Once at the station, respondent was advised of his rights as
required by Miranda v. Arizona, 384 U.
S. 436 (1966). Respondent then repeated to the police
his earlier account of the events of the evening of Reynolds'
death, admitting that he had provided Reynolds and others with
liquor for a party at Reynolds' house, but denying involvement in
the traffic accident that apparently killed Reynolds. Respondent
suggested that Reynolds might have met with foul play at the hands
of the assailant who respondent alleged had struck him at the
party.

															At this point, respondent was placed under arrest for furnishing
liquor to Reynolds, a minor, and again advised of his Miranda rights. A police officer then told respondent the
officer's theory of how the traffic accident that killed Reynolds
occurred, a theory which placed respondent behind the wheel of the
vehicle. Respondent again denied his involvement, and said "I do
want an attorney before it goes very Page 462 U. S. 1042 much further." App. 72. The officer immediately terminated the
conversation.

															Sometime later, respondent was transferred from the Rockaway
Police Station to the Tillamook County Jail, a distance of some 10
or 15 miles. Either just before or during his trip from Rockaway to
Tillamook, respondent inquired of a police officer, "Well, what is
going to happen to me now?" The officer answered by saying: "You do
not have to talk to me. You have requested an attorney, and I don't
want you talking to me unless you so desire, because anything you
say -- because -- since you have requested an attorney, you know,
it has to be at your own free will." Id. at 16. See 54 Ore.App. 949, 961, 636
P.2d 1011 , 1011-1012 (1981). Respondent said he understood.
There followed a discussion between respondent and the officer
concerning where respondent was being taken and the offense with
which he would be charged. The officer suggested that respondent
might help himself by taking a polygraph examination. Respondent
agreed to take such an examination, saying that he was willing to
do whatever he could to clear up the matter.

															The next day, following another reading to respondent of his Miranda rights, and respondent's signing a written waiver
of those rights, the polygraph was administered. At its conclusion,
the examiner told respondent that he did not believe respondent was
telling the truth. Respondent then recanted his earlier story,
admitting that he had been at the wheel of the vehicle in which
Reynolds was killed, that he had consumed a considerable amount of
alcohol, and that he had passed out at the wheel before the vehicle
left the roadway and came to rest in the creek.

															Respondent was charged with first-degree manslaughter, driving
while under the influence of intoxicants, and driving while his
license was revoked. His motion to suppress the statements
described above was denied, and he was found guilty after a bench
trial. The Oregon Court of Appeals, relying on our decision in Edwards v. Arizona, supra, reversed, Page 462 U. S. 1043 concluding that the statements had been obtained in violation of
respondent's Fifth Amendment rights. 54 Ore.App. 949, 636 P.2d
1011 (1981). We now conclude that the Oregon Court of Appeals
misapplied our decision in Edwards. In Edwards, the defendant had voluntarily submitted to
questioning, but later stated that he wished an attorney before the
discussions continued. The following day, detectives accosted the
defendant in the county jail, and when he refused to speak with
them, he was told that "he had" to talk. We held that subsequent
incriminating statements made without his attorney present violated
the rights secured to the defendant by the Fifth and Fourteenth
Amendments to the United States Constitution. In our opinion, we
stated:

															"[A]lthough we have held that, after initially being advised of
his Miranda rights, the accused may himself validly waive
his rights and respond to interrogation, See North Carolina v.
Butler , [ 441 U.S.
369 , 441 U. S. 372 -376 (1979)],
the Court has strongly indicated that additional safeguards are
necessary when the accused asks for counsel; and we now hold that,
when an accused has invoked his right to have counsel present
during custodial interrogation, a valid waiver of that right cannot
be established by showing only that he responded to further
police-initiated custodial interrogation even if he has been
advised of his rights. We further hold that an accused, such as
[the defendant], having expressed his desire to deal with the
police only through counsel, is not subject to further
interrogation by the authorities until counsel has been made
available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the
police. "

															451 U.S. at 451 U. S.
484 -485 (footnote omitted) (emphasis added).

															Respondent's question in the present case, "Well, what is going
to happen to me now?", admittedly was asked prior to Page 462 U. S. 1044 respondent's being "subject[ed] to further interrogation by the
authorities." Id. at 451 U. S. 484 .
The Oregon Court of Appeals stated that it did not "construe
defendant's question about what was going to happen to him to have
been a waiver of his right to counsel, invoked only minutes before.
. . ." 54 Ore.App. at 953, 636 P.2d at 1013. The Court of Appeals,
after quoting relevant language from Edwards, concluded
that,

															"under the reasoning enunciated in Edwards, defendant
did not make a valid waiver of his Fifth Amendment rights, and his
statements were inadmissible." Ibid. We think the Oregon Court of Appeals misapprehended the test
laid down in Edwards. We did not there hold that the
"initiation" of a conversation by a defendant such as respondent
would amount to a waiver of a previously invoked right to counsel;
we held that, after the right to counsel had been asserted by an
accused, further interrogation of the accused should not take place
"unless the accused himself initiates further communication,
exchanges, or conversations with the police." 451 U.S. at 451 U. S. 485 .
This was, in effect, a prophylactic rule, designed to protect an
accused in police custody from being badgered by police officers in
the manner in which the defendant in Edwards was. We
recently restated the requirement in Wyrick v. Fields, 459 U. S. 42 , 459 U. S. 46 (1982) (per curiam), to be that, before a suspect in custody can be
subjected to further interrogation after he requests an attorney,
there must be a showing that the "suspect himself initiates
dialogue with the authorities."

															But even if a conversation taking place after the accused has
"expressed his desire to deal with the police only through counsel"
is initiated by the accused, where reinterrogation follows, the
burden remains upon the prosecution to show that subsequent events
indicated a waiver of the Fifth Amendment right to have counsel
present during the interrogation. This is made clear in the
following footnote to our Edwards opinion:

															"If, as frequently would occur in the course of a meeting
initiated by the accused, the conversation is not Page 462 U. S. 1045 wholly one-sided, it is likely that the officers will say or do
something that clearly would be 'interrogation.' In that event, the
question would be whether a valid waiver of the right to counsel
and the right to silence had occurred, that is, whether the
purported waiver was knowing and intelligent, and found to be so
under the totality of the circumstances, including the
necessary fact that the accused, not the police, reopened the
dialogue with the authorities."

															451 U.S. at 451 U. S. 486 ,
n. 9 (emphasis added). This rule was reaffirmed earlier this Term
in Wyrick v. Fields, supra. Thus, the Oregon Court of Appeals was wrong in thinking that an
"initiation" of a conversation or discussion by an accused not only
satisfied the Edwards rule but, ex proprio
vigore, sufficed to show a waiver of the previously asserted
right to counsel. The inquiries are separate, and clarity of
application is not gained by melding them together.

															There can be no doubt in this case that, in asking, "Well, what
is going to happen to me now?", respondent "initiated" further
conversation in the ordinary dictionary sense of that word. While
we doubt that it would be desirable to build a superstructure of
legal refinements around the word "initiate" in this context, there
are undoubtedly situations where a bare inquiry by either a
defendant or by a police officer should not be held to "initiate"
any conversation or dialogue. There are some inquiries, such as a
request for a drink of water or a request to use a telephone, that
are so routine that they cannot be fairly said to represent a
desire on the part of an accused to open up a more generalized
discussion relating directly or indirectly to the investigation.
Such inquiries or statements, by either an accused or a police
officer, relating to routine incidents of the custodial
relationship, will not generally "initiate" a conversation in the
sense in which that word was used in Edwards. Although ambiguous, the respondent's question in this case as to
what was going to happen to him evinced a willingness Page 462 U. S. 1046 and a desire for a generalized discussion about the
investigation; it was not merely a necessary inquiry arising out of
the incidents of the custodial relationship. It could reasonably
have been interpreted by the officer as relating generally to the
investigation. That the police officer so understood it is apparent
from the fact that he immediately reminded the accused that "[y]ou
do not have to talk to me," and only after the accused told him
that he "understood" did they have a generalized conversation. 54
Ore.App. at 951, 636 P.2d at 1011-1012. On these facts, we believe
that there was not a violation of the Edwards rule.

															Since there was no violation of the Edwards rule in
this case, the next inquiry was

															"whether a valid waiver of the right to counsel and the right to
silence had occurred, that is, whether the purported waiver was
knowing and intelligent and found to be so under the totality of
the circumstances, including the necessary fact that the accused,
not the police, reopened the dialogue with the authorities." Edwards v. Arizona, 451 U.S. at 451 U. S. 486 ,
n. 9. As we have said many times before, this determination depends
upon " the particular facts and circumstances surrounding [the]
case, including the background, experience, and conduct of the
accused.'" North Carolina v. Butler, 441 U.
S. 369 , 441 U. S.
374 -375 (1979) (quoting Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938)). See also Edwards v. Arizona, supra, at 451 U. S.
482 -483. The state trial court made this inquiry and, in the words of the
Oregon Court of Appeals,

															"found that the police made no threats, promises or inducements
to talk, that defendant was properly advised of his rights and
understood them, and that, within a short time after requesting an
attorney, he changed his mind without any impropriety on the part
of the police. The court held that the statements made to the
polygraph examiner were voluntary, and the result of a knowing
waiver of his right to remain silent."

															54 Ore.App. at 952, 636 P.2d at 1012.

															We have no reason to dispute these conclusions, based as they
are upon the trial court's firsthand observation of the Page 462 U. S. 1047 witnesses to the events involved. The judgment of the Oregon
Court of Appeals is therefore reversed, and the cause is remanded
for further proceedings. It is so ordered. JUSTICE POWELL, concurring in the judgment.

															The Court's recent decision in Edwards v. Arizona, 451 U. S. 477 (1981), has resulted in disagreement as to whether it announced a
new per se rule. [ Footnote
1 ] My hope had been that this case would afford an opportunity
to clarify the confusion. As evidenced by the differing readings of Edwards by JUSTICES MARSHALL and REHNQUIST in their
respective opinions, my hope has not been fully realized. JUSTICE
MARSHALL, and the three Justices who join his opinion, would affirm
the Oregon Court of Appeals because it "properly applied Edwards. " Post at 462 U. S.
1053 . JUSTICE REHNQUIST, and the three Justices who join
him, would "conclude that the Oregon Court of Appeals misapplied
our decision in Edwards. " Ante at 462 U. S.
1043 . In view of the disagreement here, it is not
surprising Page 462 U. S. 1048 that courts have differed as to whether Edwards announced a per se rule, and if so, what rule. I joined
the judgment in Edwards because, on the facts, "it [was]
clear that Edwards [had been] taken from his cell against his will
and [improperly] subjected to renewed interrogation." 451 U.S. at 451 U. S. 490 (opinion concurring in result). I did not join the Court's opinion,
because I was "not sure what it mean[t]." Id. at 451 U. S.
488 .

															The opinions today reflect the ambiguity of some of the Edwards language, particularly on the meaning of
"initiation." JUSTICE MARSHALL reads Edwards as requiring
not only that the accused initiate further communication, but also
that the communication be " about the subject matter of the
criminal investigation. " Post at 462 U. S.
1053 (emphasis in original). JUSTICE REHNQUIST, however,
would require only that the suspect "evinc[e] a willingness and a
desire for a generalized discussion about the investigation." Ante at 462 U. S.
1045 -1046. This formulation would include an
"initiation" of conversation "in the ordinary dictionary sense" of
the word, ante at 462 U. S. 1045 , excluding

															"inquiries . . . that are so routine that they cannot be fairly
said to represent a desire . . . to open up a more generalized
discussion relating directly or indirectly to the
investigation." ibid. Both Justices agree in one respect. They view the "initiation"
question as the first step of a two-step analysis, the second step
being the application of the Zerbst standard that requires
examination of the "totality of the circumstances." Johnson v.
Zerbst, 304 U. S. 458 , 304 U. S.
464 (1938). JUSTICE MARSHALL puts it this way:

															"If an accused has himself initiated further communication with
the police, it is still necessary to establish, as a separate
matter, the existence of a knowing and intelligent waiver under Johnson v. Zerbst. . . ." Post at 462 U. S.
1055 , n. 2. JUSTICE REHNQUIST's opinion observes that
the initiation and the voluntariness of the waiver under Zerbst
"are separate, Page 462 U. S. 1049 and clarity of application is not gained by melding them
together." Ante at 462 U. S.
1045 .

															This bifurcating of the Zerbst standard is not
compelled by Edwards or any of our other cases. The
inquiry in Edwards did focus on the reopening of
communication with the accused by the police -- a reopening that
properly was held to be coercive. As there were no other
significant facts or circumstances bearing upon the waiver
question, there was no occasion for the Court to consider whether a
two-step analysis is required in the more customary case. [ Footnote 2 ] An incarcerated person,
accused of crime, does not remain silent and speak only when
conversation is initiated by others, whether by fellow prisoners,
guards, or law enforcement officers. Jail or prison confinements
prior to indictment or trial may extend over days and weeks, and
numerous conversations customarily occur, often accompanied by
collateral facts and circumstances. Rarely can a court properly
focus on a particular conversation and intelligently base a
judgment on the simplistic inquiry as to who spoke first.

															In this case, for example, Bradshaw's initiating question ("what
is going to happen to me now?") was not an isolated event. It was
immediately followed by a renewal of Miranda warnings and
additional conversation. The following day, there was further
conversation, a third reading of Miranda rights, and
finally Bradshaw's signing of a written waiver of those rights.
Only then did he confess. JUSTICE MARSHALL would hold that there
can be no waiver of the right to counsel unless the accused himself
opens a dialogue "about the subject matter of the criminal
investigation." Post at 462 U. S.
1054 ; see also post at 462 U. S.
1053 , 462 U. S.
1055 -1056. He states that "unless the accused himself
initiates further communication Page 462 U. S. 1050 with the police, a valid waiver of the right to counsel cannot
be established." Post at 462 U. S.
1055 , n. 2. Under this view of the two-step analysis, a
court never gets to the second step -- however relevant subsequent
facts and circumstances may be to a waiver -- unless the accused
was the first to speak and to say the right thing. This is
illustrated by the reasoning in the dissenting opinion in this
case. Since JUSTICE MARSHALL concludes that Bradshaw had not
initiated the dialogue, he does not consider the subsequent facts
and circumstances that were found by the trial court to satisfy the Zerbst standard. JUSTICE REHNQUIST, however, moves from
the first to the second step to conclude that the facts and
circumstances, when viewed in their entirety, clearly establish a
valid waiver of the right to counsel. To this extent, I agree with
his plurality opinion.

															My concern is that a two-step analysis could confound the
confusion evident from the differing views expressed by other
courts, see 462
U.S. 1039 fn2/1|>n. 1, supra, and indeed evidenced
by the conflicting reading of Edwards by JUSTICES MARSHALL
and REHNQUIST. [ Footnote 3 ] The Zerbst standard is one that is widely understood and
followed. It also comports with common sense. Fragmenting the
standard into a novel two-step analysis -- if followed literally --
often would illustrate justice as well as Page 462 U. S. 1051 common sense. [ Footnote 4 ]
Courts should engage in more substantive inquiries than "who said
what first." The holding of the Court in Edwards cannot,
in my view, fairly be reduced to this.

															We are unanimous in agreeing in this case, as in Edwards, that

															"the right to counsel [is] a prime example of those rights
requiring the special protection of the knowing and intelligent
waiver standard." Edwards, 451 U.S. at 451 U. S. 483 .
We also agree that, once the accused has requested counsel, this
right requires additional safeguards, particularly against any
coercive form of custodial interrogation. But the question of
whether a suspect has waived this important right to counsel is
uniquely one of fact, and usually must and should be left to the
judgment of the trial court, that has had the benefit of hearing
the evidence and assessing the weight and credibility of testimony.
In the circumstances of this case, I agree that Bradshaw knowingly
and intelligently waived his right to counsel, and that the
judgment below therefore should be reversed.

															[ Footnote 1 ] Compare Fields v. Wyrick, 682 F.2d 154, 158 (CA8)
( Edwards "creat[ed] a per se rule"), rev'd
and remanded, 459 U. S. 42 (1982)
(per curiam); United States v. Thierman, 678 F.2d 1331,
1338 (CA9 1982) (Wallace, J., dissenting) (reading Edwards as applying per se rule); State v.
Willie, 410 So.
2d 1019 , 1028 (La.1982) (recognizing per se rule in Edwards ); State v. McCloskey, 90 N.J. 18, 25, 446 A.2d
1201 , 1205 (1982) ( Edwards "established a per
se rule"); Giacomazzi v. State, 633 P.2d 218 ,
226 (Alaska 1981) (Rabinowitz, C.J., dissenting) ( Edwards "Court fashioned a per se rule"), with Richardson v.
State, 274 Ark. 473, 477-478, 625 S.W.2d
504 , 506-507 (1981) (applying "totality of the circumstances"
test, rather than per se rule); State v. Acquin, 187 Conn. 647, 671, 448 A.2d 163, 175 (1982) ("we do not read Edwards to prescribe a per se rule"); Leuschner v. State, 49 Md.App. 490, 497, 433 A.2d 1195 , 1199 (1981) ( Edwards does not create per se rule); State v. Scott, 626
S.W.2d 25 , 29 (Tenn.Crim.App.1981) (applying "totality of the
circumstances" test, rather than per se rule). See
also Wilson v. Zant, 249 Ga. 373, 376, 290 S.E.2d
442 , 446 ("[a]ccepting that [ Edwards ] established a per se exclusionary rule," but expressing reservation), cert. denied, 459 U.S. 1092 (1982); Leuschner,
supra, at 497, 433 A.2d at 1199 (recognizing uncertainty
whether Edwards created per se rule).

															[ Footnote 2 ]

															Perhaps what has caused some confusion is a failure to recognize
that the only new element in Edwards was the emphasis on
the prosecution's burden of proof in cases where -- in the absence
of relevant subsequent facts -- the critical question of waiver
focuses on whether the initial communication by the police was
proper.

															[ Footnote 3 ]

															We recently found it necessary to clarify uncertainty that had
resulted from decisions of this Court that had undertaken, in
Fourth Amendment cases, to draw lines that were too refined to be
applied consistently. Last Term, in United States v. Ross, 456 U. S. 798 (1982), the Court considered it necessary to "reject the precise
holding" in Robbins v. California, 453 U.
S. 420 (1981), and some of the language in Arkansas
v. Sanders, 442 U. S. 753 (1979). 456 U.S. at 456 U. S. 824 .
In my concurring opinion in Ross, I said it was "essential
to have a Court opinion . . . that provides specific guidance
to police and courts in this recurring situation.'" Id. at 456 U. S. 826 (quoting Robbins, supra, at 453 U. S. 435 (POWELL,J., concurring in judgment)). The needed clarification and
guidance were undertaken, successfully I think, in JUSTICE STEVENS'
opinion for the Court. If the opinions today, when read together,
do not provide reasonable clarification for law enforcement
officers and courts, we have a duty -- one that I think is
compelling -- to provide more specific guidance, much as we did in Ross. [ Footnote 4 ]

															I therefore prefer to read JUSTICE REHNQUIST's opinion merely as
an analytical framework that -- except in a case like Edwards -- would not inhibit courts from a full
examination of all relevant facts and circumstances.

															JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.

															Because, in my view, the plurality has misapplied Edwards v.
Arizona, 451 U. S. 477 (1981), I respectfully dissent. I In Miranda v. Arizona, 384 U.
S. 436 (1966), this Court recognized that,

															"[u]nless adequate protective devices are employed to dispel the
compulsion inherent in custodial surroundings, no statement
obtained from the defendant can truly be the product of his free
choice." Id. at 384 U. S. 458 .
Access to counsel was held essential to secure the Fifth Amendment
privilege against self-incrimination. "If the individual states Page 462 U. S. 1052 that he wants an attorney, the interrogation must cease
until an attorney is present. " Id. at 384 U. S. 474 (emphasis added). Miranda thus created a

															"rigid rule that an accused's request for an attorney is per
se an invocation of his Fifth Amendment rights, requiring that
all interrogation cease." Fare v. Michael C., 442 U. S. 707 , 442 U. S. 719 (1979).

															The significance of the invocation of the right to counsel is
premised in part on a lawyer's "unique ability to protect the Fifth
Amendment rights of a client undergoing custodial interrogation." Ibid. As JUSTICE WHITE has written:

															"[T]he reasons to keep the lines of communication between the
authorities and the accused open when the accused has chosen to
make his own decisions are not present when he indicates, instead,
that he wishes legal advice with respect thereto. The authorities
may then communicate with him through an attorney. More to the
point, the accused's 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." Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 110 ,
n. 2(1975) (concurring in result).

															Although an accused may waive his various Miranda rights and submit to interrogation, the Court has recognized that
"additional safeguards are necessary when the accused asks for
counsel." Edwards v. Arizona, 451 U.S. at 451 U. S. 484 . Edwards held that a valid waiver of the right to counsel
cannot be established by showing only that the accused responded to
further police-initiated custodial interrogation, even if he had
again been advised of his rights. Ibid. An accused who
invokes his right to counsel is not subject to further
interrogation until counsel has been made available, "unless the
accused himself initiates further communication, exchanges, or
conversations with the police." Id. at 451 U. S.
484 -485. Page 462 U. S. 1053 To establish a waiver, it would thus be a " necessary
fact that the accused, not the police, reopened the dialogue
with the authorities." Id. at 451 U. S. 486 ,
n. 9 (emphasis added).

															In this case, respondent invoked his right to have counsel
during custodial interrogation. Shortly thereafter, he asked a
police officer, "Well, what is going to happen to me now?" The
Oregon Court of Appeals concluded that respondent's question was
not

															"a waiver of his right to counsel, invoked only minutes before,
or anything other than a normal reaction to being taken from the
police station and placed in a police car, obviously for transport
to some destination."

															54 Ore.App. 949, 953, 636
P.2d 1011 , 1013 (1981). Relying on Edwards, the Oregon
court held that respondent had not initiated the subsequent
interrogation.

															The Oregon Court of Appeals properly applied Edwards. [ Footnote 2/1 ] When this Court in Edwards spoke of "initiat[ing] further communication" with
the police and "reopen[ing] the dialogue with the authorities," it
obviously had in mind communication or dialogue about the
subject matter of the criminal investigation. The rule
announced in Edwards was designed to ensure that any
interrogation subsequent to an invocation of the right to counsel
be at the instance of the accused, not the authorities. 451 U.S. at 451 U. S. 485 .
Thus, a question or statement Page 462 U. S. 1054 which does not invite further interrogation before an attorney
is present cannot qualify as "initiation" under Edwards. To hold otherwise would drastically undermine the safeguards that Miranda and Edwards carefully erected around the
right to counsel in the custodial setting

															The safeguards identified in Edwards hardly pose an
insurmountable obstacle to an accused who truly wishes to waive his
rights after invoking his right to counsel. A waiver can be
established, however, only when the accused himself reopens the
dialogue about the subject matter of the criminal investigation.
Since our decision in Edwards, the lower courts have had
no difficulty in identifying such situations. See, e.g., McCree
v. Housewright, 689 F.2d 797 (CA8 1982) (defendant initiated
reinterrogation by knocking on cell door and telling police officer
that he wanted to make a statement); United States v.
Gordon, 655 F.2d 478 (CA2 1981) (defendant reopened dialogue
by expressing a desire to provide information about someone else
who should also be arrested); State v. Brezee, 66 Haw.
163, 657 P.2d 1044 (1983) (defendant asked detective to come back to his cell and then
expressed desire to make a statement); Payne v.
State, 424
So. 2d 722 (Ala.Crim.App.1982) (defendant asked for a meeting
with police at which statements were made); People v.
Thomas, 98 Ill.App.3d 852, 424 N.E.2d 985 (1981) (defendant
initiated further communication by inquiring about accomplice's
statements linking him to the crime), cert. denied, 456
U.S. 993 (1982); State v. Pittman, 210 Neb. 117, 313 N.W.2d
252 (1981) (defendant initiated further conversation by stating
that he was being "railroaded" by his codefendants). [ Footnote 2/2 ] Page 462 U. S. 1055 II I agree with the plurality that, in order to constitute
"initiation" under Edwards, an accused's inquiry must
demonstrate a desire to discuss the subject matter of the criminal
investigation. Cf. ante at 462 U. S.
1045 . I am baffled, however, at the plurality's
application of that standard to the facts of this case. The
plurality asserts that respondent's question "[W]hat is going to
happen to me now?" evinced both "a willingness and a desire for a
generalized discussion about the investigation." Ante at 462 U. S.
1045 -1046. If respondent's question had been posed by
Jean-Paul Sartre before a class of philosophy students, it might
well have evinced a desire for a "generalized" discussion. B ut
under the circumstances of this case, it is plain that respondent's
only "desire" was to find out where the police were going to take
him. As the Oregon Court of Appeals stated, respondent's query came
only minutes after his invocation of the right to counsel, and was
simply "a normal reaction to being taken from the police station
and placed in a police car, obviously for transport to some
destination." 54 Ore.App. at 953, 636 P.2d at 1013. [ Footnote 2/3 ] On these facts, I Page 462 U. S. 1056 fail to see how respondent's question can be considered
"initiation" of a conversation about the subject matter of the
criminal investigation.

															To hold that respondent's question in this case opened a
dialogue with the authorities flies in the face of the basic
purpose of the Miranda safeguards. When someone in custody
asks, "What is going to happen to me now?", he is surely responding
to his custodial surroundings. The very essence of custody is the
loss of control over one's freedom of movement. The authorities
exercise virtually unfettered control over the accused. To allow
the authorities to recommence an interrogation based on such a
question is to permit them to capitalize on the custodial setting.
Yet Miranda's procedural protections were adopted
precisely in order "to dispel the compulsion inherent in custodial
surroundings." 384 U.S. at 384 U. S. 458 .

															Accordingly, I dissent.

															[ Footnote 2/1 ]

															In rebuking the Oregon Court of Appeals for failing to
distinguish between the initiation of a conversation and a valid
waiver of the right to counsel, ante at 462 U. S.
1044 , the plurality is attacking a straw man. Because it
concluded that respondent had not initiated any conversation, the
Oregon court never even undertook the distinct inquiry into the
existence of a knowing and intelligent waiver. Edwards makes clear that, in the absence of "initiation" by an accused,
there can be no valid waiver regardless of whatever else the
accused may say or do. 451 U.S. at 451 U. S. 484 .
Having concluded that respondent did not initiate further
conversation, the Oregon court thus stated that there was no valid
waiver in this case. This conclusion is entirely consistent with Edwards. Indeed, the Oregon court's decision contains
lengthy quotations from Edwards. Unless we are to assume
that the state court did not read the very portions of Edwards that it quotes, the plurality's attack is
completely unjustified.

															[ Footnote 2/2 ]

															In his opinion concurring in the judgment, JUSTICE POWELL
suggests that there is confusion as to whether Edwards announced a per se rule. Ante at 462 U. S.
1047 . In my view, Edwards unambiguously
established such a rule. See 451 U.S. at 451 U. S.
484 -486, and n. 9. In any event, no confusion on this
point can remain after today's decision, for eight Justices
manifestly agree that Edwards did create a per se rule. The plurality explicitly refers to the "prophylactic rule" of Edwards. Ante at 462 U. S.
1044 . See also ante at 462 U. S.
1044 -1045 (discussing the " Edwards rule"). The
rule is simply stated: unless the accused himself initiates further
communication with the police, a valid waiver of the right to
counsel cannot be established. If an accused has himself initiated
further communication with the police, it is still necessary to
establish as a separate matter the existence of a knowing and
intelligent waiver under Johnson v. Zerbst, 304 U.
S. 458 , 304 U. S. 464 (1938). The only dispute between the plurality and the dissent in
this case concerns the meaning of "initiation" for purposes of Edwards' per se rule.

															[ Footnote 2/3 ]

															The plurality seems to place some reliance on the police
officer's reaction to respondent's question. The officer described
his response as follows:

															"I says, 'You do not have to talk to me. You have requested an
attorney, and I don't want you talking to me unless you so desire,
because anything you say -- because -- since you have requested an
attorney, you know, it has to be at your own free will.' I says, 'I
can't prevent you from talking, but you understand where your place
-- you know, where your standing is here?' and he agreed. He says
'I understand.'"

															As the officer's testimony indicates, respondent's statement
was, at best, ambiguous. In any event, as the Oregon Court of
Appeals noted, the officer clearly took advantage of respondent's
inquiry to commence once again his questioning -- a practice
squarely at odds with Edwards. See 54 Ore.App. at
953, 636 P.2d at 1013.