U.S. Supreme Court Moran v. Burbine, 475
U.S. 412 (1986) Moran v. Burbine No. 84-1485 Argued November 13,
1985 Decided March 10,
1986 475
U.S. 412 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIRST CIRCUIT Syllabus After respondent was arrested by the Cranston, Rhode Island,
police in connection with a breaking and entering, the police
obtained evidence suggesting that he might be responsible for the
murder of a woman in Providence earlier that year. An officer
telephoned the Providence police at approximately 6 p.m., and an
hour later Providence police officers arrived at the Cranston
headquarters to question respondent about the murder. That same
evening, unknown to respondent, his sister, who was unaware that
respondent was then under suspicion for murder, telephoned the
Public Defender's Office to obtain legal assistance for her brother
on the burglary charge. At 8:15 p.m., an Assistant Public Defender
telephoned the Cranston detective division, stated that she would
act as respondent's counsel if the police intended to question him,
and was informed that he would not be questioned further until the
next day. The attorney was not informed that the Providence police
were there or that respondent was a murder suspect. Less than an
hour later, the Providence police began a series of interviews with
respondent, giving him warnings pursuant to Miranda v.
Arizona, 384 U. S. 436 ,
before each session and obtaining three signed waivers from him
prior to eliciting three signed statements admitting to the murder.
At all relevant times, respondent was unaware of his sister's
efforts to retain counsel and of the attorney's telephone call, but
at no time did he request an attorney. The state trial court denied
his pretrial motion to suppress the statements, finding that he had
validly waived his privilege against self-incrimination and his
right to counsel. Respondent was convicted of first-degree murder,
and the Rhode Island Supreme Court affirmed, rejecting the
contention that the Fifth and Fourteenth Amendments required
suppression of the statements. Respondent then unsuccessfully
sought habeas corpus relief in Federal District Court, but the
Court of Appeals reversed, holding that the police conduct in
failing to inform respondent as to the attorney's call had fatally
tainted his waivers of his Fifth Amendment privilege against
self-incrimination and right to counsel. Page 475 U. S. 413 Held: 1. The Court of Appeals erred in construing the Fifth Amendment
to require the exclusion of respondent's confessions. The record
supports the state court findings that the Providence police
followed Miranda procedures with precision in obtaining
respondent's written waivers of his Fifth Amendment rights prior to
eliciting the confessions. Pp. 475 U. S.
420 -428.

															(a) The police's failure to inform respondent of the attorney's
telephone call did not deprive him of information essential to his
ability to knowingly waive his Fifth Amendment rights to remain
silent and to the presence of counsel. Events occurring outside of
a suspect's presence and entirely unknown to him can have no
bearing on the capacity to comprehend and knowingly relinquish a
constitutional right. Once it is demonstrated that a suspect's
decision not to rely on his rights was uncoerced, that he at all
times knew he could stand mute and request a lawyer, and that he
was aware of the State's intention to use his statements to secure
a conviction, the analysis is complete and the waiver is valid as a
matter of law. The level of the police's culpability -- whether
intentional or inadvertent -- in failing to inform respondent of
the telephone call has no bearing on the validity of the waivers.
Pp. 475 U. S.
421 -424.

															(b) Miranda 's reach will not be extended so as to
require the reversal of a conviction if the police are less than
forthright in their dealings with an attorney or if they fail to
tell a suspect of an attorney's unilateral efforts to contact him.
Reading Miranda to forbid police deception of an attorney would cut that decision loose from its rationale
of guarding against abridgment of the suspect's Fifth Amendment
rights. And, while a rule requiring that the police inform a
suspect of an attorney's efforts to reach him might add marginally
to Miranda's goal of dispelling the compulsion inherent in
custodial interrogation, overriding practical considerations --
particularly the ease and clarity of Miranda's application
-- counsel against adoption of the rule. Moreover, such a rule
would work a substantial and inappropriate shift in the subtle
balance struck in Miranda between society's legitimate law
enforcement interests and the protection of the accused's Fifth
Amendment rights. Pp. 475 U. S.
424 -428.

															2. The conduct of the police did not violate respondent's Sixth
Amendment right to counsel. That right initially attaches only
after the first formal charging procedure, whereas the challenged
police conduct here occurred prior to respondent's arraignment. The
contention that the right to noninterference with an attorney's
dealings with a criminal suspect arises the moment that the
relationship is formed, or, at the very least, once the suspect is
placed in custodial interrogation, is not supported by precedent.
Moreover, such contention is both practically Page 475 U. S. 414 and theoretically unsound. By its very terms, the Sixth
Amendment becomes applicable only when the government's role shifts
from investigation to accusation through the initiation of
adversary judicial proceedings. The possibility that custodial
interrogation may have important consequences at trial, standing
alone, is insufficient to trigger the Sixth Amendment right to
counsel. Pp. 475 U. S.
428 -432.

															3. Nor was the asserted misconduct of the police -- particularly
the conveying of false information to the attorney -- so offensive
as to deprive respondent of the fundamental fairness guaranteed by
the Due Process Clause of the Fourteenth Amendment. Although, on
facts more egregious than those presented here, police deception
might rise to a level of a due process violation, the conduct
challenged here falls short of the kind of misbehavior that so
shocks the sensibilities of civilized society as to warrant a
federal intrusion into the criminal processes of the States. Pp. 475 U. S.
432 -434.

															753 F.2d 178, reversed and remanded.

															O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ.,
joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN
and MARSHALL, JJ., joined, post, p. 434. Page 475 U. S. 415 JUSTICE O'CONNOR delivered the opinion of the Court.

															After being informed of his rights pursuant to Miranda v.
Arizona, 384 U. S. 436 (1966), and after executing a series of written waivers, respondent
confessed to the murder of a young woman. At no point during the
course of the interrogation, which occurred prior to arraignment,
did he request an attorney. While he was in police custody, his
sister attempted to retain a lawyer to represent him. The attorney
telephoned the police station and received assurances that
respondent would not be questioned further until the next day. In
fact, the interrogation session that yielded the inculpatory
statements began later that evening. The question presented is
whether either the conduct of the police or respondent's Page 475 U. S. 416 ignorance of the attorney's efforts to reach him taints the
validity of the waivers and therefore requires exclusion of the
confessions. I On the morning of March 3, 1977, Mary Jo Hickey was found
unconscious in a factory parking lot in Providence, Rhode Island.
Suffering from injuries to her skull apparently inflicted by a
metal pipe found at the scene, she was rushed to a nearby hospital.
Three weeks later, she died from her wounds.

															Several months after her death, the Cranston, Rhode Island,
police arrested respondent and two others in connection with a
local burglary. Shortly before the arrest, Detective Ferranti of
the Cranston police force had learned from a confidential informant
that the man responsible for Ms. Hickey's death lived at a certain
address and went by the name of "Butch." Upon discovering that
respondent lived at that address and was known by that name,
Detective Ferranti informed respondent of his Miranda rights. When respondent refused to execute a written waiver,
Detective Ferranti spoke separately with the two other suspects
arrested on the breaking and entering charge and obtained
statements further implicating respondent in Ms. Hickey's murder.
At approximately 6 p.m., Detective Ferranti telephoned the police
in Providence to convey the information he had uncovered. An hour
later, three officers from that department arrived at the Cranston
headquarters for the purpose of questioning respondent about the
murder.

															That same evening, at about 7:45 p.m., respondent's sister
telephoned the Public Defender's Office to obtain legal assistance
for her brother. Her sole concern was the breaking and entering
charge, as she was unaware that respondent was then under suspicion
for murder. She asked for Richard Casparian, who had been scheduled
to meet with respondent earlier that afternoon to discuss another
charge unrelated to either the break-in or the murder. As soon as
the conversation Page 475 U. S. 417 ended, the attorney who took the call attempted to reach Mr.
Casparian. When those efforts were unsuccessful, she telephoned
Allegra Munson, another Assistant Public Defender, and told her
about respondent's arrest and his sister's subsequent request that
the office represent him.

															At 8:15 p.m., Ms. Munson telephoned the Cranston police station
and asked that her call be transferred to the detective division.
In the words of the Supreme Court of Rhode Island, whose factual
findings we treat as presumptively correct, 28 U.S.C. § 2254(d),
the conversation proceeded as follows:

															"A male voice responded with the word 'Detectives.' Ms. Munson
identified herself and asked if Brian Burbine was being held; the
person responded affirmatively. Ms. Munson explained to the person
that Burbine was represented by attorney Casparian, who was not
available; she further stated that she would act as Burbine's legal
counsel in the event that the police intended to place him in a
lineup or question him. The unidentified person told Ms. Munson
that the police would not be questioning Burbine or putting him in
a lineup, and that they were through with him for the night. Ms.
Munson was not informed that the Providence Police were at the
Cranston police station or that Burbine was a suspect in Mary's
murder." State v. Burbine, 451 A.2d
22 , 23-24 (1982). At all relevant times, respondent was unaware
of his sister's efforts to retain counsel and of the fact and
contents of Ms. Munson's telephone conversation.

															Less than an hour later, the police brought respondent to an
interrogation room and conducted the first of a series of
interviews concerning the murder. Prior to each session, respondent
was informed of his Miranda rights, and on three separate
occasions he signed a written form acknowledging that he understood
his right to the presence of an attorney and explicitly indicating
that he "[did] not want an attorney Page 475 U. S. 418 called or appointed for [him]" before he gave a statement. App.
to Pet. for Cert. 94, 103, 107. Uncontradicted evidence at the
suppression hearing indicated that at least twice during the course
of the evening, respondent was left in a room where he had access
to a telephone, which he apparently declined to use. Tr. of
Suppression Hearing 23, 85. Eventually, respondent signed three
written statements fully admitting to the murder.

															Prior to trial, respondent moved to suppress the statements. The
court denied the motion, finding that respondent had received the Miranda warnings and had "knowingly, intelligently, and
voluntarily waived his privilege against self-incrimination [and]
his right to counsel." App. to Pet. for Cert. 116. Rejecting the
contrary testimony of the police, the court found that Ms. Munson
did telephone the detective bureau on the evening in question, but
concluded that "there was no . . . conspiracy or collusion on the
part of the Cranston Police Department to secrete this defendant
from his attorney." Id. at 114. In any event, the court
held, the constitutional right to request the presence of an
attorney belongs solely to the defendant, and may not be asserted
by his lawyer. Because the evidence was clear that respondent never
asked for the services of an attorney, the telephone call had no
relevance to the validity of the waiver or the admissibility of the
statements.

															The jury found respondent guilty of murder in the first degree,
and he appealed to the Supreme Court of Rhode Island. A divided
court rejected his contention that the Fifth and Fourteenth
Amendments to the Constitution required the suppression of the
inculpatory statements, and affirmed the conviction. Failure to
inform respondent of Ms. Munson's efforts to represent him, the
court held, did not undermine the validity of the waivers.

															"It hardly seems conceivable that the additional information
that an attorney whom he did not know had called the police station
would have added significantly to the quantum of information
necessary for the Page 475 U. S. 419 accused to make an informed decision as to waiver." State v. Burbine, 451 A.2d
22 , 29 (1982). Nor, the court concluded, did Miranda v.
Arizona or any other decision of this Court independently
require the police to honor Ms. Munson's request that interrogation
not proceed in her absence. In reaching that conclusion, the court
noted that, because two different police departments were operating
in the Cranston station house on the evening in question, the
record supported the trial court's finding that there was no
"conspiracy or collusion" to prevent Ms. Munson from seeing
respondent. 451 A.2d at 30, n. 5. In any case, the court held, the
right to the presence of counsel belongs solely to the accused, and
may not be asserted by "benign third parties, whether or not they
happen to be attorneys." Id. at 28.

															After unsuccessfully petitioning the United States District
Court for the District of Rhode Island for a writ of habeas corpus, 589 F.
Supp. 1245 (1984), respondent appealed to the Court of Appeals
for the First Circuit. That court reversed. 753 F.2d 178 (1985).
Finding it unnecessary to reach any arguments under the Sixth and
Fourteenth Amendments, the court held that the police's conduct had
fatally tainted respondent's "otherwise valid" waiver of his Fifth
Amendment privilege against self-incrimination and right to
counsel. Id. at 184. The court reasoned that, by failing
to inform respondent that an attorney had called and that she had
been assured that no questioning would take place until the next
day, the police had deprived respondent of information crucial to
his ability to waive his rights knowingly and intelligently. The
court also found that the record would support "no other
explanation for the refusal to tell Burbine of Attorney Munson's
call than . . . deliberate or reckless irresponsibility." Id. at 185. This kind of "blameworthy action by the
police," the court concluded, together with respondent's ignorance
of the telephone call, "vitiate[d] any claim that [the] waiver of
counsel was knowing and voluntary." Id. at 185, 187. Page 475 U. S. 420 We granted certiorari to decide whether a prearraignment
confession preceded by an otherwise valid waiver must be suppressed
either because the police misinformed an inquiring attorney about
their plans concerning the suspect or because they failed to inform
the suspect of the attorney's efforts to reach him. 471 U.S. 1098
(1985). We now reverse. II In Miranda v. Arizona, the Court recognized that
custodial interrogations, by their very nature, generate

															"compelling pressures which work to undermine the individual's
will to resist and to compel him to speak where he would not
otherwise do so freely."

															384 U.S. at 384 U. S. 467 .
To combat this inherent compulsion, and thereby protect the Fifth
Amendment privilege against self-incrimination, Miranda imposed on the police an obligation to follow certain procedures in
their dealings with the accused. In particular, prior to the
initiation of questioning, they must fully apprise the suspect of
the State's intention to use his statements to secure a conviction,
and must inform him of his rights to remain silent and to "have
counsel present . . . if [he] so desires." Id. at 384 U. S.
468 -470. Beyond this duty to inform, Miranda requires that the police respect the accused's decision to exercise
the rights outlined in the warnings.

															"If the individual indicates in any manner, at any time prior to
or during questioning, that he wishes to remain silent, [or if he]
states that he wants an attorney, the interrogation must
cease." Id. at 384 U. S.
473 -474. See also Edwards v. Arizona, 451 U. S. 477 (1981).

															Respondent does not dispute that the Providence police followed
these procedures with precision. The record amply supports the
state court findings that the police administered the required
warnings, sought to assure that respondent understood his rights,
and obtained an express written waiver prior to eliciting each of
the three statements. Nor does respondent contest the Rhode Island
courts' determination that he at no point requested the presence of
a lawyer. Page 475 U. S. 421 He contends instead that the confessions must be suppressed
because the police's failure to inform him of the attorney's
telephone call deprived him of information essential to his ability
to knowingly waive his Fifth Amendment rights. In the alternative,
he suggests that, to fully protect the Fifth Amendment values
served by Miranda, we should extend that decision to
condemn the conduct of the Providence police. We address each
contention in turn. A Echoing the standard first articulated in Johnson v.
Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938), Miranda holds that "[t]he defendant may waive
effectuation" of the rights conveyed in the warnings "provided the
waiver is made voluntarily, knowingly and intelligently." 384 U.S.
at 384 U. S. 444 , 384 U. S. 475 .
The inquiry has two distinct dimensions. Edwards v. Arizona,
supra, at 451 U. S. 482 ; Brewer v. Williams, 430 U. S. 387 , 430 U. S. 404 (1977). First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free and
deliberate choice, rather than intimidation, coercion, or
deception. Second, the waiver must have been made with a full
awareness of both the nature of the right being abandoned and the
consequences of the decision to abandon it. Only if the "totality
of the circumstances surrounding the interrogation" reveals both an
uncoerced choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have been
waived. Fare v. Michael C., 442 U.
S. 707 , 442 U. S. 725 (1979). See also North Carolina v. Butler, 441 U.
S. 369 , 441 U. S.
374 -375 (1979).

															Under this standard, we have no doubt that respondent validly
waived his right to remain silent and to the presence of counsel.
The voluntariness of the waiver is not at issue. As the Court of
Appeals correctly acknowledged, the record is devoid of any
suggestion that police resorted to physical or psychological
pressure to elicit the statements. 753 F.2d at 184. Indeed it
appears that it was respondent, and not the Page 475 U. S. 422 police, who spontaneously initiated the conversation that led to
the first and most damaging confession. Id. at 180 Cf.
Edwards v. Arizona, supra. Nor is there any question about
respondent's comprehension of the full panoply of rights set out in
the Miranda warnings and of the potential consequences of
a decision to relinquish them. Nonetheless, the Court of Appeals
believed that the "[d]eliberate or reckless" conduct of the police,
in particular their failure to inform respondent of the telephone
call, fatally undermined the validity of the otherwise proper
waiver. 753 F.2d at 187. We find this conclusion untenable as a
matter of both logic and precedent.

															Events occurring outside of the presence of the suspect and
entirely unknown to him surely can have no bearing on the capacity
to comprehend and knowingly relinquish a constitutional right.
Under the analysis of the Court of Appeals, the same defendant,
armed with the same information and confronted with precisely the
same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police
station to inquire about his status. Nothing in any of our waiver
decisions or in our understanding of the essential components of a
valid waiver requires so incongruous a result. No doubt the
additional information would have been useful to respondent;
perhaps even it might have affected his decision to confess. But we
have never read the Constitution to require that the police supply
a suspect with a flow of information to help him calibrate his
self-interest in deciding whether to speak or stand by his rights. See, e.g., Oregon v. Elstad, 470 U.
S. 298 , 470 U. S.
316 -317 (1985); United States v. Washington, 431 U. S. 181 , 431 U. S. 188 (1977). Cf. Hill v. Lockhart, 474 U. S.
52 , 474 U. S. 56 (1985); McMann v. Richardson, 397 U.
S. 759 , 397 U. S. 769 (1970). Once it is determined that a suspect's decision not to rely
on his rights was uncoerced, that he at all times knew he could
stand mute and request a lawyer, and that he was aware of the
State's intention to use his statements to secure a conviction, the
analysis Page 475 U. S. 423 is complete, and the waiver is valid as a matter of law.
[ Footnote 1 ] The Court of
Appeals' conclusion to the contrary was in error.

															Nor do we believe that the level of the police's culpability in
failing to inform respondent of the telephone call has any bearing
on the validity of the waivers. In light of the state court
findings that there was no "conspiracy or collusion" on the part of
the police, 451 A.2d at 30, n. 5, we have serious doubts about
whether the Court of Appeals was free to conclude that their
conduct constituted "deliberate or reckless irresponsibility." 753
F.2d at 185; see 28 U.S.C. § 2254(d). But whether
intentional or inadvertent, the state of mind of the police is
irrelevant to the question of the intelligence and voluntariness of
respondent's election to abandon his rights. Although highly
inappropriate, even deliberate deception of an attorney could not
possibly affect a suspect's decision to waive his Miranda rights unless he were at least aware of the incident. Compare
Escobedo v. Illinois, 378 U. S. 478 , 378 U. S. 481 (1964) (excluding confession where police incorrectly told the
suspect that his lawyer " didn't want to see' him"). Nor was the
failure to inform respondent of the telephone call the kind of
"trick[ery]" that can vitiate the validity of a waiver. Miranda, 384 U.S. at 384 U. S. 476 .
Granting that the "deliberate or reckless" withholding of
information is objectionable as a Page 475 U. S. 424 matter of ethics, such conduct is only relevant to the
constitutional validity of a waiver if it deprives a defendant of
knowledge essential to his ability to understand the nature of his
rights and the consequences of abandoning them. Because
respondent's voluntary decision to speak was made with full
awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid. B At oral argument respondent acknowledged that a constitutional
rule requiring the police to inform a suspect of an attorney's
efforts to reach him would represent a significant extension of our
precedents. Tr. of Oral Arg. 32-33. He contends, however, that the
conduct of the Providence police was so inimical to the Fifth
Amendment values Miranda seeks to protect that we should
read that decision to condemn their behavior. Regardless of any
issue of waiver, he urges, the Fifth Amendment requires the
reversal of a conviction if the police are less than forthright in
their dealings with an attorney or if they fail to tell a suspect
of a lawyer's unilateral efforts to contact him. Because the
proposed modification ignores the underlying purposes of the Miranda rules, and because we think that the decision as
written strikes the proper balance between society's legitimate law
enforcement interests and the protection of the defendant's Fifth
Amendment rights, we decline the invitation to further extend Miranda's reach.

															At the outset, while we share respondent's distaste for the
deliberate misleading of an officer of the court, reading Miranda to forbid police deception of an attorney "would cut [the decision] completely loose from its own explicitly
stated rationale." Beckwith v. United States, 425 U.
S. 341 , 425 U. S. 345 (1976). As is now well established,

															"[t]he . . . Miranda warnings are 'not themselves
rights protected by the Constitution, but [are] instead measures to
insure that the [suspect's] right against compulsory
self-incrimination [is] protected.' " Page 475 U. S. 425 New York v. Quarles, 467 U. S. 649 , 467 U. S. 654 (1984), quoting Michigan v. Tucker, 417 U.
S. 433 , 417 U. S. 444 (1974). Their objective is not to mold police conduct for its own
sake. Nothing in the Constitution vests in us the authority to
mandate a code of behavior for state officials wholly unconnected
to any federal right or privilege. The purpose of the Miranda warnings, instead, is to dissipate the compulsion
inherent in custodial interrogation and, in so doing, guard against
abridgment of the suspect's Fifth Amendment rights. Clearly, a rule
that focuses on how the police treat an attorney -- conduct that
has no relevance at all to the degree of compulsion experienced by
the defendant during interrogation -- would ignore both Miranda's mission and its only source of legitimacy.

															Nor are we prepared to adopt a rule requiring that the police
inform a suspect of an attorney's efforts to reach him. While such
a rule might add marginally to Miranda's goal of
dispelling the compulsion inherent in custodial interrogation,
overriding practical considerations counsel against its adoption.
As we have stressed on numerous occasions, "[o]ne of the principal
advantages" of Miranda is the ease and clarity of its
application. Berkemer v. McCarty, 468 U.
S. 420 , 468 U. S. 430 (1984); see also New York v. Quarles, supra, at 467 U. S.
662 -664 (concurring opinion); Fare v. Michael
C., 442 U.S. at 442 U. S. 718 .
We have little doubt that the approach urged by respondent and
endorsed by the Court of Appeals would have the inevitable
consequence of muddying Miranda's otherwise relatively
clear waters. The legal questions it would spawn are legion: to
what extent should the police be held accountable for knowing that
the accused has counsel? Is it enough that someone in the station
house knows, or must the interrogating officer himself know of
counsel's efforts to contact the suspect? Do counsel's efforts to
talk to the suspect concerning one criminal investigation trigger
the obligation to inform the defendant before interrogation may
proceed on a wholly separate matter? We are unwilling to modify Miranda in a Page 475 U. S. 426 manner that would so clearly undermine the decision's
central

															"virtue of informing police and prosecutors with specificity . .
. what they may do in conducting [a] custodial interrogation, and
of informing courts under what circumstances statements obtained
during such interrogation are not admissible." Fare v. Michael C., supra, at 442 U. S.
718 .

															Moreover, problems of clarity to one side, reading Miranda to require the police in each instance to inform a
suspect of an attorney's efforts to reach him would work a
substantial and, we think, inappropriate shift in the subtle
balance struck in that decision. Custodial interrogations implicate
two competing concerns. On the one hand, "the need for police
questioning as a tool for effective enforcement of criminal laws"
cannot be doubted. Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 225 (1973). Admissions of guilt are more than merely "desirable," United States v. Washington, 431 U.S. at 431 U. S. 186 ;
they are essential to society's compelling interest in finding,
convicting, and punishing those who violate the law. On the other
hand, the Court has recognized that the interrogation process is
"inherently coercive," and that, as a consequence, there exists a
substantial risk that the police will inadvertently traverse the
fine line between legitimate efforts to elicit admissions and
constitutionally impermissible compulsion. New York v. Quarles,
supra, at 467 U. S. 656 . Miranda attempted to reconcile these opposing concerns by
giving the defendant the power to exert some control over
the course of the interrogation. Declining to adopt the more
extreme position that the actual presence of a lawyer was necessary
to dispel the coercion inherent in custodial interrogation, see Brief for American Civil Liberties Union as Amicus
Curiae in Miranda v. Arizona, O.T. 1965, No. 759, pp.
22-31, the Court found that the suspect's Fifth Amendment rights
could be adequately protected by less intrusive means. Police
questioning, often an essential part of the investigatory process,
could continue in its traditional form, the Court held, but only if
the suspect clearly understood Page 475 U. S. 427 that, at any time, he could bring the proceeding to a halt or,
short of that, call in an attorney to give advice and monitor the
conduct of his interrogators.

															The position urged by respondent would upset this carefully
drawn approach in a manner that is both unnecessary for the
protection of the Fifth Amendment privilege and injurious to
legitimate law enforcement. Because, as Miranda holds,
full comprehension of the rights to remain silent and request an
attorney are sufficient to dispel whatever coercion is inherent in
the interrogation process, a rule requiring the police to inform
the suspect of an attorney's efforts to contact him would
contribute to the protection of the Fifth Amendment privilege only
incidentally, if at all. This minimal benefit, however, would come
at a substantial cost to society's legitimate and substantial
interest in securing admissions of guilt. Indeed, the very premise
of the Court of Appeals was not that awareness of Ms. Munson's
phone call would have dissipated the coercion of the interrogation
room, but that it might have convinced respondent not to speak at
all. 753 F.2d at 185. Because neither the letter nor purposes of Miranda require this additional handicap on otherwise
permissible investigatory efforts, we are unwilling to expand the Miranda rules to require the police to keep the suspect
abreast of the status of his legal representation.

															We acknowledge that a number of state courts have reached a
contrary conclusion. Compare State v. Jones, 19 Wash. App.
850, 578 P.2d 71 (1978), with State v.
Beck, 687 S.W.2d
155 (Mo.1985) (en banc). We recognize also that our
interpretation of the Federal Constitution, if given the dissent's
expansive gloss, is at odds with the policy recommendations
embodied in the American Bar Association Standards of Criminal
Justice. Cf. ABA Standards for Criminal Justice 5-7.1 (2d
ed.1980). Notwithstanding the dissent's protestations, however, our
interpretive duties go well beyond deferring to the numerical
preponderance of lower court decisions or to the subconstitutional
recommendations Page 475 U. S. 428 of even so esteemed a body as the American Bar Association. See Nix v. Whiteside, ante at 475 U. S. 189 (BLACKMUN, J., concurring in judgment). Nothing we say today
disables the States from adopting different requirements for the
conduct of its employees and officials as a matter of state law. We
hold only that the Court of Appeals erred in construing the Fifth
Amendment to the Federal Constitution to require the exclusion of
respondent's three confessions. III Respondent also contends that the Sixth Amendment requires
exclusion of his three confessions. [ Footnote 2 ] It is clear, of course, that, absent a valid
waiver, the defendant has the right to the presence of an attorney
during any interrogation occurring after the first formal charging
proceeding, the point at which the Sixth Amendment right to counsel
initially attaches. United States v. Gouveia, 467 U.
S. 180 , 467 U. S. 187 (1984); Kirby v. Illinois, 406 U.
S. 682 , 406 U. S. 689 (1972) (opinion of Stewart, J.). See Brewer v. Williams, 430 U.S. at 430 U. S.
400 -401. And we readily agree that, once the right has
attached, it follows that the police may not interfere with the
efforts of a defendant's attorney to act as a " medium' between
[the suspect] and the State" during the interrogation. Maine v.
Moulton, 474 U. S. 159 , 474 U. S. 176 (1985); see Brewer v. Williams, supra, at 430 U. S. 401 ,
n. 8. The difficulty for respondent is that the interrogation
sessions that yielded the inculpatory statements took place before
the initiation of "adversary judicial proceedings." United
States v. Gouveia, supra, at 467 U. S. 192 .
He contends, however, that this circumstance is not fatal to his
Sixth Amendment claim. At least in some situations, he argues, the
Sixth Amendment protects the integrity of the Page 475 U. S. 429 attorney-client relationship [ Footnote 3 ] regardless of whether the prosecution has in
fact commenced "by way of formal charge, preliminary hearing,
indictment, information or arraignment." 467 U.S. at 467 U. S. 188 .
Placing principal reliance on a footnote in Miranda, 384
U.S. at 384 U. S. 465 ,
n. 35, and on Escobedo v. Illinois, 378 U.
S. 478 (1964), he maintains that Gouveia,
Kirby, and our other "critical stage" cases concern only the
narrow question of when the right to counsel -- that is,
to the appointment or presence of counsel -- attaches. The right to
noninterference with an attorney's dealings with a criminal
suspect, he asserts, arises the moment that the relationship is
formed, or, at the very least, once the defendant is placed in
custodial interrogation.

															We are not persuaded. At the outset, subsequent decisions
foreclose any reliance on Escobedo and Miranda for the proposition that the Sixth Amendment right, in any of its
manifestations, applies prior to the initiation of adversary
judicial proceedings. Although Escobedo was originally
decided as a Sixth Amendment case,

															"the Court in retrospect perceived that the 'prime purpose' of Escobedo was not to vindicate the constitutional right to
counsel as such, but, like Miranda, 'to guarantee full
effectuation of the privilege against self-incrimination. . .
.'" Kirby v. Illinois, supra, Page 475 U. S. 430 at 406 U. S. 689 ,
quoting Johnson v. New Jersey, 384 U.
S. 719 , 384 U. S. 729 (1966). Clearly then, Escobedo provides no support for
respondent's argument. Nor, of course, does Miranda, the
holding of which rested exclusively on the Fifth Amendment. Thus,
the decision's brief observation about the reach of Escobedo's Sixth Amendment analysis is not only dictum,
but reflects an understanding of the case that the Court has
expressly disavowed. See also United States v. Gouveia,
supra, at 467 U. S. 188 ,
n. 5; Y. Kamisar, Police Interrogation and Confessions 217-218, n.
94 (1980).

															Questions of precedent to one side, we find respondent's
understanding of the Sixth Amendment both practically and
theoretically unsound. As a practical matter, it makes little sense
to say that the Sixth Amendment right to counsel attaches at
different times depending on the fortuity of whether the suspect or
his family happens to have retained counsel prior to interrogation. Cf. id. at 220-221. More importantly, the suggestion that
the existence of an attorney-client relationship itself triggers
the protections of the Sixth Amendment misconceives the underlying
purposes of the right to counsel. The Sixth Amendment's intended
function is not to wrap a protective cloak around the
attorney-client relationship for its own sake, any more than it is
to protect a suspect from the consequences of his own candor. Its
purpose, rather, is to assure that, in any "criminal
prosecutio[n]," U.S.Const., Amdt. 6, the accused shall not be left
to his own devices in facing the " prosecutorial forces of
organized society.'" Maine v. Moulton, supra, at 474 U. S. 170 (quoting Kirby v. Illinois, 406 U.S. at 406 U. S.
689 ). By its very terms, it becomes applicable only when
the government's role shifts from investigation to accusation. For
it is only then that the assistance of one versed in the
"intricacies . . . of law," ibid., is needed to assure
that the prosecution's case encounters "the crucible of meaningful
adversarial testing." United States v. Cronic, 466 U. S. 648 , 466 U. S. 656 (1984). Page 475 U. S. 431 Indeed, in Maine v. Moulton, decided this Term, the
Court again confirmed that looking to the initiation of adversary
judicial proceedings, far from being mere formalism, is fundamental
to the proper application of the Sixth Amendment right to counsel.
There, we considered the constitutional implications of a
surreptitious investigation that yielded evidence pertaining to two
crimes. For one, the defendant had been indicted; for the other, he
had not. Concerning the former, the Court reaffirmed that, after
the first charging proceeding, the government may not deliberately
elicit incriminating statements from an accused out of the presence
of counsel. See also Massiah v. United States, 377 U. S. 201 (1964). The Court made clear, however, that the evidence concerning
the crime for which the defendant had not been indicted -- evidence
obtained in precisely the same manner from the identical suspect --
would be admissible at a trial limited to those charges. Maine
v. Moulton, 474 U.S. at 474 U. S. 180 ,
and n. 16. The clear implication of the holding, and one that
confirms the teaching of Gouveia, is that the Sixth
Amendment right to counsel does not attach until after the
initiation of formal charges. Moreover, because Moulton already had
legal representation, the decision all but forecloses respondent's
argument that the attorney-client relationship itself triggers the
Sixth Amendment right.

															Respondent contends, however, that custodial interrogations
require a different rule. Because confessions elicited during the
course of police questioning often seal a suspect's fate, he
argues, the need for an advocate -- and the concomitant right to
noninterference with the attorney-client relationship -- is at its
zenith, regardless of whether the State has initiated the first
adversary judicial proceeding. We do not doubt that a lawyer's
presence could be of value to the suspect; and we readily agree
that, if a suspect confesses, his attorney's case at trial will be
that much more difficult. But these concerns are no more decisive
in this context than they were for the equally damaging
preindictment lineup Page 475 U. S. 432 at issue in Kirby, or the statements pertaining to the
unindicted crime elicited from the defendant in Maine v.
Moulton. Compare United States v. Wade, 388 U.
S. 218 , 388 U. S.
226 -227 (1967) (Sixth Amendment attaches at
postindictment lineup); Massiah v. United States, supra, (after indictment, police may not elicit statements from suspect
out of the presence of counsel). For an interrogation, no more or
less than for any other "critical" pretrial event, the possibility
that the encounter may have important consequences at trial,
standing alone, is insufficient to trigger the Sixth Amendment
right to counsel. As Gouveia made clear, until such time
as the " government has committed itself to prosecute, and . . .
the adverse positions of government and defendant have
solidified,'" the Sixth Amendment right to counsel does not attach.
467 U.S. at 467 U. S. 189 (quoting Kirby v. Illinois, supra, at 406 U. S.
689 ). Because, as respondent acknowledges, the events that led to the
inculpatory statements preceded the formal initiation of adversary
judicial proceedings, we reject the contention that the conduct of
the police violated his rights under the Sixth Amendment. IV Finally, respondent contends that the conduct of the police was
so offensive as to deprive him of the fundamental fairness
guaranteed by the Due Process Clause of the Fourteenth Amendment.
Focusing primarily on the impropriety of conveying false
information to an attorney, he invites us to declare that such
behavior should be condemned as violative of canons fundamental to
the " traditions and conscience of our people.'" Rochin v.
California, 342 U. S. 165 , 342 U. S. 169 (1952), quoting Snyder v. Massachusetts, 291 U. S.
97 , 291 U. S. 105 (1934). We do not question that, on facts more egregious than those
presented here, police deception might rise to a level of a due
process violation. Accordingly, JUSTICE STEVENS' Page 475 U. S. 433 apocalyptic suggestion that we have approved any and all forms
of police misconduct is demonstrably incorrect. [ Footnote 4 ] We hold only that, on these
facts, the challenged conduct falls short of the kind of
misbehavior that so shocks the sensibilities Page 475 U. S. 434 of civilized society as to warrant a federal intrusion into the
criminal processes of the States.

															We hold therefore that the Court of Appeals erred in finding
that the Federal Constitution required the exclusion of the three
inculpatory statements. Accordingly, we reverse and remand for
proceedings consistent with this opinion. So ordered. [ Footnote 1 ]

															The dissent incorrectly reads our analysis of the components of
a valid waiver to be inconsistent with the Court's holding in Edwards v. Arizona, 451 U. S. 477 (1981). Post at 475 U. S. 452 .
When a suspect has requested counsel, the interrogation
must cease, regardless of any question of waiver, unless the
suspect himself initiates the conversation. In the course of its
lengthy exposition, however, the dissent never comes to grips with
the crucial distinguishing feature of this case -- that Burbine at
no point requested the presence of counsel, as was his right under Miranda to do. We do not quarrel with the dissent's
characterization of police interrogation as a "privilege terminable
at the will of the suspect." Post at 475 U. S. 458 .
We reject, however, the dissent's entirely undefended suggestion
that the Fifth Amendment "right to counsel" requires anything more
than that the police inform the suspect of his right to
representation and honor his request that the interrogation cease
until his attorney is present. See, e.g., Michigan v.
Mosley, 423 U. S. 96 , 423 U. S. 104 ,
n. 10 (1975).

															[ Footnote 2 ]

															Petitioner does not argue that respondent's valid waiver of his
Fifth Amendment right to counsel necessarily served to waive his
parallel rights under the Sixth Amendment. Accordingly, we have no
occasion to consider whether a waiver for one purpose necessarily
operates as a general waiver of the right to counsel for all
purposes.

															[ Footnote 3 ]

															Notwithstanding the Rhode Island Supreme Court's finding that,
as a matter of state law, no attorney-client relationship existed
between respondent and Ms. Munson, the Sixth Amendment issue is
properly before us. State v. Burbine, 461 A.2d 22, 29
(1982). Petitioner now concedes that such a relationship existed,
and invites us to decide the Sixth Amendment question based on that
concession. Of course, a litigant's concession cannot be used to
circumvent the rule that this Court may not disregard a state
court's interpretation of state law. Respondent's argument,
however, does not focus on whether an attorney-client relationship
actually existed as a formal matter of state law. He argues instead
that, on the particular facts of this case, the Sixth Amendment
right to counsel has been violated. In any event, even if the
existence of an attorney-client relationship could somehow
independently trigger the Sixth Amendment right to counsel, a
position we reject, the type of circumstances that would give rise
to the right would certainly have a federal definition.

															[ Footnote 4 ]

															Among its other failings, the dissent declines to follow Oregon v. Elstad, 470 U. S. 298 (1986), a decision that categorically forecloses JUSTICE STEVENS'
major premise -- that Miranda requires the police to
inform a suspect of any and all information that would be useful to
a decision whether to remain silent or speak with the police. See also United States v. Washington, 431 U.
S. 181 , 431 U. S. 188 (1977). The dissent also launches a novel "agency" theory of the
Fifth Amendment under which any perceived deception of a lawyer is
automatically treated as deception of his or her client. This
argument entirely disregards the elemental and established
proposition that the privilege against compulsory
self-incrimination is, by hypothesis, a personal one that can only
be invoked by the individual whose testimony is being
compelled.

															Most importantly, the dissent's misreading of Miranda itself is breathtaking in its scope. For example, it reads Miranda as creating an undifferentiated right to the
presence of an attorney that is triggered automatically by the
initiation of the interrogation itself. Post at 475 U. S. 463 .
Yet, as both Miranda and subsequent decisions construing Miranda make clear beyond refute, " the interrogation
must cease until an attorney is present' only `[i]f the
individual states that he wants an attorney.'" Michigan v.
Mosley, 423 U. S. 96 , 423 U. S. 104 ,
n. 10 (1975) (emphasis added), quoting Miranda, 384 U.S.
at 384 U. S. 474 .
The dissent condemns us for embracing "incommunicado questioning .
. . as a societal goal of the highest order that justifies police
deception of the shabbiest kind." Post at 475 U. S. 439 .
We, of course, do nothing of the kind. As any reading of Miranda reveals, the decision, rather than proceeding from
the premise that the rights and needs of the defendant are
paramount to all others, embodies a carefully crafted balance
designed to fully protect both the defendant's and
society's interests. The dissent may not share our view that the
Fifth Amendment rights of the defendant are amply protected by
application of Miranda as written. But the dissent is
"simply wrong," post at 475 U. S. 452 ,
in suggesting that exclusion of Burbine's three confessions follows
perfunctorily from Miranda's mandate. Y. Kamisar, Police
Interrogation and Confessions 217-218, n. 94 (1980). Quite understandably, the dissent is outraged by the very idea
of police deception of a lawyer. Significantly less understandable
is its willingness to misconstrue this Court's constitutional
holdings in order to implement its subjective notions of sound
policy.

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

															This case poses fundamental questions about our system of
justice. As this Court has long recognized, and reaffirmed only
weeks ago, "ours is an accusatorial, and not an inquisitorial,
system." Miller v. Fenton, 474 U.
S. 104 , 474 U. S. 110 (1985). [ Footnote 2/1 ] The Court's
opinion today represents a startling departure from that basic
insight. Page 475 U. S. 435 The Court concludes that the police may deceive an attorney by
giving her false information about whether her client will be
questioned, and that the police may deceive a suspect by failing to
inform him of his attorney's communications and efforts to
represent him. [ Footnote 2/2 ] For
the majority, this conclusion, though "distaste[ful]," ante at 475 U. S. 424 ,
is not even debatable. The deception of the attorney is irrelevant,
because the attorney has no right to information, accuracy,
honesty, or fairness in the police response to her questions about
her client. The deception of the client is acceptable, because,
although the information would affect the client's assertion of his
rights, the client's actions in ignorance of the availability of
his attorney are voluntary, knowing, and intelligent; additionally,
society's interest in apprehending, prosecuting, and punishing
criminals outweighs the suspect's interest in information regarding
his attorney's efforts to communicate with him. Finally, even
mendacious police interference in the communications between a
suspect and his lawyer does not violate any notion of fundamental
fairness, because it does not shock the conscience of the
majority.

															The case began in March, 1977, with the discovery of Mary Jo
Hickey, unconscious and disheveled in a deserted parking lot, lying
in a pool of blood, with semen on her clothes, her dentures broken,
and a piece of heavy, bloodstained metal nearby. Days later, Brian
Burbine, then 20 years old, went to Maine and stayed with friends.
According to the friends' testimony at trial, he was upset, and
described a night out with Hickey, who was then 35. After several
drinks, Page 475 U. S. 436 Burbine told them, a ride home turned into a violent encounter;
he hit Hickey several times and threw her out of the car. Three
weeks after she was discovered in the parking lot, Hickey died.
Three months later, after the 21-hour period of detention by the
Cranston and Providence, Rhode Island, police that is the focus of
this dispute, Burbine was charged with her murder, and ultimately
found guilty of it.

															The murder of Mary Jo Hickey was a vicious crime, fully meriting
a sense of outrage and a desire to find and prosecute the
perpetrator swiftly and effectively. Indeed, by the time Burbine
was arrested on an unrelated breaking-and-entering charge, the
Hickey murder had been the subject of a local television special.
[ Footnote 2/3 ] Not surprisingly,
Detective Ferranti, the Cranston Detective who "broke" the case,
was rewarded with a special commendation for his efforts. [ Footnote 2/4 ]

															The recognition that ours is an accusatorial, and not an
inquisitorial, system nevertheless requires that the government's
actions, even in responding to this brutal crime, respect those
liberties and rights that distinguish this society from most
others. As Justice Jackson observed shortly after his return from
Nuremberg, cases of this kind present

															"a real dilemma in a free society . . . for the defendant is
shielded by such safeguards as no system of law except the
Anglo-American concedes to him. [ Footnote 2/5 ]"

															Justice Frankfurter similarly Page 475 U. S. 437 emphasized that it is "a fair summary of history to say that the
safeguards of liberty have been forged in controversies involving
not very nice people." [ Footnote
2/6 ] And, almost a century and a half ago, Macaulay observed
that the guilt of Titus Oates could not justify his conviction by
improper methods:

															"That Oates was a bad man is not a sufficient excuse; for the
guilty are almost always the first to suffer those hardships which
are afterwards used as precedents against the innocent. [ Footnote 2/7 ]"

															The Court's holding focuses on the period after a suspect has
been taken into custody and before he has been charged with an
offense. The core of the Court's holding is that police
interference with an attorney's access to her client during that
period is not unconstitutional. The Court reasons that a State has
a compelling interest, not simply in custodial interrogation, but
in lawyer-free, incommunicado custodial interrogation. Such
incommunicado interrogation is so important that a lawyer may be
given false information that prevents her presence and
representation; it is so important that police may refuse to inform
a suspect of his attorney's Page 475 U. S. 438 communications and immediate availability. [ Footnote 2/8 ] This conclusion flies in the face of
this Court's repeated expressions of deep concern about
incommunicado questioning. [ Footnote
2/9 ] Until Page 475 U. S. 439 today, incommunicado questioning has been viewed with the
strictest scrutiny by this Court; today, incommunicado questioning
is embraced as a societal goal of the highest order that justifies
police deception of the shabbiest kind.

															It is not only the Court's ultimate conclusion that is deeply
disturbing; it is also its manner of reaching that conclusion. The
Court completely rejects an entire body of law on the subject --
the many carefully reasoned state decisions that have come to
precisely the opposite conclusion. [ Footnote 2/10 ] The Court Page 475 U. S. 440 similarly dismisses the fact that the police deception which it
sanctions quite clearly violates the American Bar Association's
Standards for Criminal Justice [ Footnote 2/11 ] -- Standards which Page 475 U. S. 441 THE CHIEF JUSTICE has described as

															"the single most comprehensive and probably the most monumental
undertaking in the field of criminal justice ever attempted by the
American legal profession in our national history, [ Footnote 2/12 ]"

															and which this Court frequently finds helpful. [ Footnote 2/13 ] And, of course, the Court dismisses
the fact that the American Bar Association has emphatically
endorsed the prevailing state court position, and expressed its
serious concern about the effect that a contrary view -- a view,
such as the Court's, that exalts incommunicado interrogation,
sanctions police deception, and demeans the right to consult with
an attorney -- will have in police stations and courtrooms
throughout this Nation. [ Footnote
2/14 ] Of greatest importance, the Court misapprehends or
rejects the central principles that have, for several decades,
animated this Court's decisions concerning incommunicado
interrogation. [ Footnote
2/15 ]

															Police interference with communications between an attorney and
his client is a recurrent problem. The factual variations in the
many state court opinions condemning this interference as a
violation of the Federal Constitution suggest the Page 475 U. S. 442 variety of contexts in which the problem emerges. In Oklahoma,
police led a lawyer to several different locations while they
interrogated the suspect; [ Footnote
2/16 ] in Oregon, police moved a suspect to a new location when
they learned that his lawyer was on his way; [ Footnote 2/17 ] in Illinois, authorities failed to
tell a suspect that his lawyer had arrived at the jail and asked to
see him; [ Footnote 2/18 ] in
Massachusetts, police did not tell suspects that their lawyers were
at or near the police station. [ Footnote 2/19 ] In all these cases, the police not only
failed to inform the suspect, but also misled the attorneys. The
scenarios vary, but the core problem of police interference
remains. "Its recurrence suggests that it has roots in some
condition fundamental and general to our criminal system." Watts v. Indiana, 338 U. S. 49 , 338 U. S. 57 (1949) (Jackson, J., concurring in result).

															The near-consensus of state courts and the legal profession's
Standards about this recurrent problem lends powerful support to
the conclusion that police may not interfere with communications
between an attorney and the client whom they are questioning.
Indeed, at least two opinions from this Court seemed to express
precisely that view. [ Footnote
2/20 ] The Court today flatly rejects that widely held view, and
responds to this recurrent problem by adopting the most restrictive
interpretation of the federal constitutional restraints on
police Page 475 U. S. 443 deception, misinformation, and interference in attorney-client
communications.

															The exact reach of the Court's opinion is not entirely clear
because, on the one hand, it indicates that more egregious forms of
police deception might violate the Constitution, ante at 475 U. S. 432 ,
while, on the other hand, it endeavors to make its disposition of
this case palatable by making findings of fact concerning the
voluntariness of Burbine's confessions that the trial judge who
heard the evidence declined to make. [ Footnote 2/21 ] Before addressing the legal issues, it
therefore seems appropriate to make certain additional comments
about what the record discloses concerning the incriminating
statements made by Burbine during the 21-hour period that he was
detained by the Cranston and Providence police on June 29 and June
30, 1977 I As the majority points out, with respect to attorney Munson's
telephone call, the Rhode Island Supreme Court's summary of factual
findings provides the common ground for analysis:

															"At approximately 8:15 [on June 29, 1977], Ms. Munson called the
Cranston police station and asked that her call be transferred to
the detective division. A male voice responded with the word
'Detectives.' Ms. Munson identified herself and asked if Brian
Burbine was being held; the person responded affirmatively. Ms.
Munson explained to the person that Burbine was represented by
attorney Casparian, who was not available; she further stated that
she would act as Burbine's legal counsel in the event that the
police intended to place him in a lineup or question him. The
unidentified person told Ms. Munson that the police would not be
questioning Burbine or putting him in a lineup, and that they
were Page 475 U. S. 444 through with him for the night. Ms. Munson was not informed that
the Providence police were at the Cranston police station, or that
Burbine was a suspect in Mary's murder. The trial justice found as
a fact that Ms. Munson did make the call, but further found that
there was no collusion or conspiracy on the part of the police 'to
secrete [Burbine] from his attorney. . . .'" State v. Burbine , 451 A.2d
22 , 23-24 (1982). [ Footnote
2/22 ]

															Although this paragraph accurately describes attorney Munson's
8:15 call, the significance of the false response to her inquiry is
best understood in the context of the events that were then
proceeding in the police station. The difficulty in reconstructing
some of those events illustrates the need for strict presumptions
regarding the consequences of custodial interrogation -- a need
this Court has repeatedly recognized. [ Footnote 2/23 ] Page 475 U. S. 445 On June 27, 1977, an unidentified person advised Detective
Ferranti that a man known as "Butch," who lived at 306 New York
Avenue in Providence, was responsible for the death of Mary Jo
Hickey. The record does not explain why Ferranti, who was a member
of the Cranston Police Force, was informed about a crime that
occurred in Providence.

															At about 3 p.m. on June 29, 1977, Cranston police officers
apprehended respondent Burbine and two other men (DiOrio and
Sparks) in "a burned-out building in the Cranston area." S.H. 6,
180. The three men were taken to the Cranston police station,
charged with "breaking and entering," and placed in separate rooms.
After noticing that DiOrio and Burbine lived at 306 New York Avenue
in Providence, Detective Ferranti talked to DiOrio and was told
that Burbine was the only "Butch" at that address. Id. at
146-147.

															At approximately 4:30, Ferranti "went in the room where Burbine
was" and asked him "if there was anybody that he knew by the name
of Butch on the street, and he said he was the only Butch." Id. at 148. [ Footnote
2/24 ] After the brief questioning about the identity of
"Butch," Detective Ferranti left Burbine in the interrogation room
-- where he remained until about 9 p.m. [ Footnote 2/25 ] -- and interrogated DiOrio and Sparks.
They both "made damaging statements relative to Burbine's being
involved in the murder in Providence"; Ferranti therefore
"immediately contacted Providence Police." Id. at 149-150.
The Providence officers -- Captain Wilson (the Chief of
Detectives), Lieutenant Gannon, and Detective Trafford -- responded
promptly, and arrived at the Cranston station between Page 475 U. S. 446 6 and 7 p.m. Lieutenant Gannon testified that, as he drove to
the Cranston police station, he knew that he might not be able to
question Burbine

															"[i]f for some reason he didn't want to give me a statement, if
for some reason he chose to get an attorney and the attorney
informed us that he didn't want him to give a statement."

															Trial Tr. 407.

															After arriving at the station, the three Providence officers, as
well as Ferranti and a second Cranston officer (Lieutenant Ricard),
either remained in the large central room in the basement of the
Cranston police station or participated in the questioning of
DiOrio and Sparks in interrogation rooms adjacent to that large
central room.

															It was at this point -- with Burbine alone in another adjacent
room, with Providence police on hand, with police from two
Departments questioning Sparks and DiOrio about Burbine's
involvement in the Hickey homicide -- that attorney Munson
telephoned. Her call arrived at 8:15; she asked for "Detectives,"
and was told that the police "would not be questioning Burbine" and
that they were "through" with him for the night. These statements
were false. Moreover, she was not told that Burbine would be
questioned about a homicide, rather than the breaking-and-entering
charge on which he had been arrested, and she was not told that
Providence police were at the Cranston police station preparing to
question Burbine about a Providence crime.

															At about 9, some 45 minutes after Munson received the assurance
that the police were "through" with Burbine, the officers completed
their questioning of DiOrio and Sparks and were prepared to
question Burbine. There is no dispute about the fact that Burbine
was brought into the central room at about 9, that all five police
officers were then present, and that Burbine appeared somewhat
upset and professed that he " didn't do anything wrong.'" S.H.
21. Detective Ferranti testified that this statement was in
response to questions from the Providence police about the
Hickey Page 475 U. S.
447 homicide; [ Footnote 2/26 ]
Lieutenant Gannon of the Providence police testified that the
statement was about the Hickey homicide, but that Providence police
did not question Burbine, and that they merely saw Burbine being
escorted by Ferranti. [ Footnote
2/27 ] Burbine was not told that attorney Munson had called and
had asked about him; nor was he told that Munson had been informed
that the police were through with him for the night. After his
protestations, Burbine was taken into another interrogation
room. Detective Ferranti then went into that room and, according to
the testimony of the Providence officers, spent either "ten
minutes" or from "five to ten minutes" alone with Burbine.
[ Footnote 2/28 ] The record does
not tell us whether he told Burbine that Sparks and DiOrio had just
given statements implicating him in the Hickey homicide. Nor does
it resolve the question whether Burbine's decision to confess was
made before his session with Ferranti or as a
result of that session. The Court evidently makes the former
assumption, for it asserts that Burbine "initiated" this encounter. Ante at 475 U. S.
421 -422. However, the state courts made no finding about
this Page 475 U. S. 448 "initiation" by Burbine. Detective Ferranti testified that
Burbine banged and kicked on the door, S.H. 153-154; Lieutenant
Gannon testified that he "believed" there was a knocking or some
communication from Burbine, id. at 22, but he was "not
sure." Id. at 66. [ Footnote
2/29 ] None of the other officers, who were apparently in the
large room adjacent to Burbine's, corroborated this testimony by
mentioning any "banging," "kicking," or other noise from Burbine's
direction. In all events, some minutes later, Detective Ferranti
came back out of the room and indicated that Burbine wanted to
talk.

															Lieutenant Gannon and Detective Trafford of the Providence
police accompanied Detective Ferranti "back into the room." During
the period between 9:30 and 10:20 p.m., they administered Miranda warnings and typed out a four-page statement which
Burbine signed, waiving his constitutional rights, acknowledging
his responsibility for the death of Hickey, and reciting his
version of that event. Ferranti alternately testified that Burbine
was "coherent" and "incoherent" at the time of this questioning. Id. at 157-158; Trial Tr.198, 208-209. Apparently for the
first time since his arrival at the station in the afternoon, the
police then brought Burbine some food. S.H. 160, Trial Tr. 205.

															After obtaining Burbine's signature on the first written
statement at 10:20 p.m., the police were still not "through" with
Burbine. Burbine's first statement included no mention of the
clothes that he had been wearing, or of a glass that was found with
Hickey's purse a few blocks from the homicide. Soon after the
completion of the first statement, and after the Providence and
Cranston officers had discussed the first statement and expressed
pleasure with their success, [ Footnote 2/30 ] Page 475 U. S. 449 Gannon, Trafford, and Ferranti again questioned Burbine. They
ascertained that he was wearing his "red toke" and "black
windbreaker" at the time, and that Hickey had left the bar with a
glass in hand. [ Footnote 2/31 ] At
11:20 p.m., Burbine signed the second statement.

															The following morning, the officers obtained a warrant,
conducted a search of Burbine's residence, and seized the clothing
that he had described in the second statement. In the meantime,
Burbine was arraigned in Cranston court on the charge for which he
had been arrested. Still without counsel, Burbine pleaded guilty to
malicious damage. After the Cranston proceeding, Providence
officers instantly arrested him for the Hickey homicide. Trial Tr.
501. Burbine was taken to the Providence police station, where he
executed a third waiver of rights and identified the coat and
jacket that the officers had seized. Shortly after noon, Major
Leyden called the Public Defender's Office and requested counsel
for Burbine because he would be placed in a lineup. Id. at
423.

															Thus, although there are a number of ambiguities in the record,
the state court findings established (1) that attorney Munson made
her call at about 8:15 p.m.; (2) that she was given false
information; (3) that Burbine was not told of her Page 475 U. S. 450 call; and (4) that he was thereafter given the Miranda warnings, waived his rights, and signed three incriminating
statements without receiving any advice from an attorney. The
remainder of the record underscores two points. The first is the
context of the call -- a context in which two Police Departments
were on the verge of resolving a highly publicized, hauntingly
brutal homicide, and in which, as Lieutenant Gannon testified, the
police were aware that counsel's advice to remain silent might be
an obstacle to obtaining a confession. The second is the extent of
the uncertainty about the events that motivated Burbine's decision
to waive his rights. The lawyer-free privacy of the interrogation
room, so exalted by the majority, provides great difficulties in
determining what actually transpired. It is not simply the
ambiguity that is troublesome; if so, the problem would be not
unlike other difficult evidentiary problems. Rather, the
particularly troublesome aspect is that the ambiguity arises in the
very situation -- incommunicado interrogation -- for which this
Court has developed strict presumptions, and for which this Court
has, in the past, imposed the heaviest burden of justification on
the government. It is in this context, and the larger context of
our accusatorial system, that the deceptive conduct of the police
must be evaluated. II Well-settled principles of law lead inexorably to the conclusion
that the failure to inform Burbine of the call from his attorney
makes the subsequent waiver of his constitutional rights invalid.
Analysis should begin with an acknowledgment that the burden of
proving the validity of a waiver of constitutional rights is always
on the government. [ Footnote
2/32 ] When Page 475 U. S. 451 such a waiver occurs in a custodial setting, that burden is an
especially heavy one because custodial interrogation is inherently
coercive, [ Footnote 2/33 ] because
disinterested witnesses are seldom available to describe what
actually happened, [ Footnote
2/34 ] and because history has taught us that the danger of
overreaching during incommunicado interrogation is so real.
[ Footnote 2/35 ]

															In applying this heavy presumption against the validity of
waivers, this Court has sometimes relied on a case-by-case totality
of the circumstances analysis. [ Footnote 2/36 ] We have found, however, that some
custodial interrogation situations require strict presumptions
against the validity of a waiver. Miranda established that
a waiver is not valid in the absence of certain warnings. Edwards v. Arizona, 451 U. S. 477 (1981), similarly established that a waiver is not valid if
police Page 475 U. S. 452 initiate questioning after the defendant has invoked his right
to counsel. In these circumstances, the waiver is invalid as a
matter of law even if the evidence overwhelmingly establishes, as a
matter of fact, that

															"a suspect's decision not to rely on his rights was uncoerced,
that he at all times knew that he could stand mute and request a
lawyer, and that he was aware of the State's intention to use his
statements to secure a conviction," see ante at 475 U. S. 422 .
In light of our decision in Edwards, the Court is simply
wrong in stating that "the analysis is complete and the waiver is
valid as a matter of law" when these facts have been established. Ante at 475 U. S.
422 -423. [ Footnote
2/37 ] Like the failure to give warnings and like police
initiation of interrogation after a request for counsel, police
deception of a suspect through omission of information regarding
attorney communications greatly exacerbates the inherent problems
of incommunicado interrogation, and requires a clear principle to
safeguard the presumption against the waiver of constitutional
rights. As in those situations, the police deception should render
a subsequent waiver invalid.

															Indeed, as Miranda itself makes clear, proof that the
required warnings have been given is a necessary, but by no means
sufficient, condition for establishing a valid waiver. As the Court
plainly stated in Miranda, "any evidence that the accused was threatened, tricked, or
cajoled into a waiver will, of course, show that the defendant did
not voluntarily waive his privilege. The requirement of warnings
and waiver of rights is a fundamental with respect to the Fifth Page 475 U. S. 453 Amendment privilege and not simply a preliminary ritual to
existing methods of interrogation."

															384 U.S. at 384 U. S.
476 .

															In this case, it would be perfectly clear that Burbine's waiver
was invalid if, for example, Detective Ferranti had "threatened,
tricked, or cajoled" Burbine in their private preconfession meeting
-- perhaps by misdescribing the statements obtained from DiOrio and
Sparks -- even though, under the Court's truncated analysis of the
issue, Burbine fully understood his rights. For Miranda clearly condemns threats or trickery that cause a suspect to make
an unwise waiver of his rights even though he fully understands
those rights. In my opinion, there can be no constitutional
distinction -- as the Court appears to draw, ante at 475 U. S.
423 -424 -- between a deceptive misstatement and the
concealment by the police of the critical fact that an attorney
retained by the accused or his family has offered assistance,
either by telephone or in person. [ Footnote 2/38 ]

															Thus, the Court's truncated analysis, which relies in part on a
distinction between deception accomplished by means of an omission
of a critically important fact and deception by means of a
misleading statement, is simply untenable. If, as the Court
asserts, "the analysis is at an end" as soon as the suspect is
provided with enough information to have the capacity to understand
and exercise his rights, I see no reason why the police should not
be permitted to make the same kind of misstatements to the suspect
that they are apparently allowed to make to his lawyer. Miranda, however, clearly Page 475 U. S. 454 establishes that both kinds of deception vitiate the suspect's
waiver of his right to counsel. [ Footnote 2/39 ]

															As the Court notes, the question is whether the deceptive police
conduct

															"deprives a defendant of knowledge essential to his ability to
understand the nature of his rights and the consequences of
abandoning them." Ante at 475 U. S. 424 .
This question has been resoundingly answered time and time again by
the state courts that, with rare exceptions, [ Footnote 2/40 ] have correctly understood the
meaning of the Miranda opinion. [ Footnote 2/41 ] The majority's Page 475 U. S. 455 blithe assertion of "no doubt" about the outcome of this case, ante at 475 U. S. 421 ,
simply ignores the prevailing view of the state courts that have
considered this issue. Particularly in an opinion that relies on a
desire to avoid "a federal intrusion into the criminal processes of
the States," ante at 475 U. S. 434 ,
one would expect at least some indication why, in the majority's
view, so many state courts have been so profoundly wrong on this
precise issue. Unlike the majority, the state courts have realized
that attorney communication to the police Page 475 U. S. 456 about the client is an event that has a direct "bearing" on the
knowing and intelligent waiver of constitutional rights. As the
Oregon Supreme Court has explained:

															"To pass up an abstract offer to call some unknown lawyer is
very different from refusing to talk with an identified attorney
actually available to provide at least initial assistance and
advice, whatever might be arranged in the long run. A suspect
indifferent to the first offer may well react quite differently to
the second." State v. Haynes, 288 Ore. 59, 72, 602 P.2d
272 , 278 (1979), cert. denied, 446 U.S. 945 (1980).
[ Footnote 2/42 ]

															In short, settled principles about construing waivers of
constitutional rights and about the need for strict presumptions in
custodial interrogations, as well as a plain reading of the Miranda opinion itself, overwhelmingly support the
conclusion reached by almost every state court that has considered
the matter -- a suspect's waiver of his right to counsel is invalid
if police refuse to inform the suspect of his counsel's
communications. III The Court makes the alternative argument that requiring police
to inform a suspect of his attorney's communications to Page 475 U. S. 457 and about him is not required because it would upset the careful
"balance" of Miranda. Despite its earlier notion that the
attorney's call is an "outside event" that has "no bearing" on a
knowing and intelligent waiver, the majority does acknowledge that
information of attorney Munson's call "would have been useful to
respondent," and "might have affected his decision to confess." Ante at 475 U. S. 422 .
[ Footnote 2/43 ] Thus, a rule
requiring the police to inform a suspect of an attorney's call
would have two predictable effects. It would serve
" Miranda's goal of dispelling the compulsion inherent in
custodial interrogation," ante at 475 U. S. 425 ,
and it would disserve the goal of custodial interrogation, because
it would result in fewer confessions. By a process of balancing
these two concerns, the Court finds the benefit to the individual
outweighed by the "substantial cost to society's legitimate and
substantial interest in securing admissions of guilt." Ante at 475 U. S.
427 .

															The Court's balancing approach is profoundly misguided. The cost
of suppressing evidence of guilt will always make the value of a
procedural safeguard appear "minimal," "marginal," or
"incremental." Indeed, the value of any trial at all seems like a
"procedural technicality" when balanced against the interest in
administering prompt justice to a murderer or a rapist caught
redhanded. The individual interest in procedural safeguards that
minimize the risk of error is easily discounted when the fact of
guilt appears certain beyond doubt.

															What is the cost of requiring the police to inform a suspect of
his attorney's call? It would decrease the likelihood that
custodial interrogation will enable the police to obtain a
confession. This is certainly a real cost, but it is the same cost
that this Court has repeatedly found necessary to preserve Page 475 U. S. 458 the character of our free society and our rejection of an
inquisitorial system. Three examples illustrate the point.

															In Escobedo v. Illinois, 378 U.
S. 478 (1964), we excluded a confession by a defendant
who had not been permitted to consult with his lawyer, and whose
lawyer had not been permitted to see him. We emphasized the "lesson
of history" that our system of justice is not founded on a fear
that a suspect will exercise his rights.

															"If the exercise of constitutional rights will thwart the
effectiveness of a system of law enforcement, then there is
something very wrong with that system." Id. at 378 U. S. 490 .
In Miranda v. Arizona, 384 U. S. 436 (1966), we similarly stressed this character of our system, despite
its "cost," by unequivocally holding that an individual has an
absolute right to refuse to respond to police interrogation and to
have the assistance of counsel during any questioning. [ Footnote 2/44 ] Thus, as a matter of law,
the assumed right of the police to interrogate a suspect is no
right at all; at best, it is a mere privilege terminable at the
will of the suspect. And, more recently, in Dunaway v. New
York, 442 U. S. 200 (1979), the Court corrected the long-held but mistaken view of the
police that they have some sort of right to take any suspect Page 475 U. S. 459 into custody for the purpose of questioning him, even though
they may not have probable cause to arrest. [ Footnote 2/45 ]

															Just as the "cost" does not justify taking a suspect into
custody or interrogating him without giving him warnings simply
because police desire to question him, so too the "cost" does not
justify permitting police to withhold from a suspect knowledge of
an attorney's communication, even though that communication would
have an unquestionable effect on the suspect's exercise of his
rights. The "cost" that concerns the Court amounts to nothing more
than an acknowledgment that the law enforcement interest in
obtaining convictions suffers whenever a suspect exercises the
rights that are afforded by our system of criminal justice. In
other words, it is the fear that an individual may exercise his
rights that tips the scales of justice for the Court today. The
principle that ours is an accusatorial, not an inquisitorial,
system, however, has repeatedly led the Court to reject that fear
as a valid reason for inhibiting the invocation of rights.

															If the Court's cost-benefit analysis were sound, it would
justify a repudiation of the right to a warning about counsel
itself. There is only a difference in degree between a presumption
that advice about the immediate availability of a lawyer would not
affect the voluntariness of a decision to confess and a presumption
that every citizen knows that he has a right to remain silent, and
therefore no warnings of any kind are needed. In either case, the
withholding of information serves precisely the same law
enforcement interests. And in both cases, the cost can be described
as nothing more than Page 475 U. S. 460 an incremental increase in the risk that an individual will make
an unintelligent waiver of his rights.

															In cases like Escobedo, Miranda, and Dunn, the
Court has viewed the balance from a much broader perspective. In
all these cases -- indeed, whenever the distinction between an
inquisitorial and an accusatorial system of justice is implicated
-- the law enforcement interest served by incommunicado
interrogation has been weighed against the interest in individual
liberty that is threatened by such practices. The balance has never
been struck by an evaluation of empirical data of the kind
submitted to legislative decisionmakers -- indeed, the Court relies
on no such data today. Rather, the Court has evaluated the quality
of the conflicting rights and interests. In the past, that kind of
balancing process has led to the conclusion that the police have no right to compel an individual to respond to custodial
interrogation, and that the interest in liberty that is threatened
by incommunicado interrogation is so precious that special
procedures must be followed to protect it. The Court's contrary
conclusion today can only be explained by its failure to appreciate
the value of the liberty that an accusatorial system seeks to
protect. IV The Court also argues that a rule requiring the police to inform
a suspect of an attorney's efforts to reach him would have an
additional cost: it would undermine the "clarity" of the rule of
the Miranda case. Ante at 475 U. S.
425 -426. This argument is not supported by any reference
to the experience in the States that have adopted such a rule. The
Court merely professes concern about its ability to answer three
quite simple questions. [ Footnote
2/46 ] Page 475 U. S. 461 Moreover, the Court's evaluation of the interest in "clarity" is
rather one-sided. For a police officer with a printed card
containing the exact text he is supposed to recite, perhaps the
rule is clear. But the interest in clarity that the Miranda decision was intended to serve is not merely for
the benefit of the police. Rather, the decision was also, and
primarily, intended to provide adequate guidance to the person in
custody who is being asked to waive the protections afforded by the
Constitution. [ Footnote 2/47 ]
Inevitably, the Miranda decision also serves the judicial
interest in clarifying the inquiry Page 475 U. S. 462 into what actually transpired during a custodial interrogation.
[ Footnote 2/48 ] Under the Court's
conception of the interest in clarity, however, the police would
presumably prevail whenever they could convince the trier of fact
that a required ritual was performed before the confession was
obtained. V At the time attorney Munson made her call to the Cranston police
station, she was acting as Burbine's attorney. Under ordinary
principles of agency law, the deliberate deception of Munson was
tantamount to deliberate deception of her client. [ Footnote 2/49 ] If an attorney makes a mistake in
the course of her representation of her client, the client must
accept the consequences of that mistake. [ Footnote 2/50 ] It is equally clear that, when an
attorney makes an inquiry on behalf of her client, the client is
entitled to a truthful answer. Surely the client must have the same
remedy for a false representation to his lawyer that he would have
if he were acting pro se and had propounded the question
himself.

															The majority brushes aside the police deception involved in the
misinformation of attorney Munson. It is irrelevant to the Fifth
Amendment analysis, concludes the majority, because that right is
personal; it is irrelevant to the Sixth Page 475 U. S. 463 Amendment analysis, continues the majority, because the Sixth
Amendment does not apply until formal adversary proceedings have
begun.

															In my view, as a matter of law, the police deception of Munson
was tantamount to deception of Burbine himself. It constituted a
violation of Burbine's right to have an attorney present during the
questioning that began shortly thereafter. The existence of that
right is undisputed. [ Footnote
2/51 ] Whether the source of that right is the Sixth Amendment,
the Fifth Amendment, or a combination of the two is of no special
importance, for I do not understand the Court to deny the existence
of the right.

															The pertinent question is whether police deception of the
attorney is utterly irrelevant to that right. In my judgment, it
blinks at reality to suggest that misinformation which prevented
the presence of an attorney has no bearing on the protection and
effectuation of the right to counsel in custodial interrogation.
The majority parses the role of attorney and suspect so narrowly
that the deception of the attorney is of no Page 475 U. S. 464 constitutional significance. In other contexts, however, the
Court does not hesitate to recognize an identity between the
interest of attorney and accused. [ Footnote 2/52 ] The character of the attorney-client
relationship requires rejection of the Court's notion that the
attorney is some entirely distinct, completely severable entity,
and that deception of the attorney is irrelevant to the right of
counsel in custodial interrogation. [ Footnote 2/53 ] Page 475 U. S. 465 The possible reach of the Court's opinion is stunning. For the
majority seems to suggest that police may deny counsel all access
to a client who is being held. At least since Escobedo v.
Illinois, it has been widely accepted that police may not
simply deny attorneys access to their clients who are in custody.
This view has survived the recasting of Escobedo from a
Sixth Amendment to a Fifth Amendment case that the majority finds
so critically important. That this prevailing view is shared by the
police can be seen in the state court opinions detailing various
forms of police deception of attorneys. [ Footnote 2/54 ] For, if there were no obligation to give
attorneys access, there would be no need to take elaborate steps to
avoid access, such as shuttling the suspect to a different location
[ Footnote 2/55 ] or taking the
lawyer to different locations; [ Footnote 2/56 ] police could simply refuse to allow the
attorneys to see the suspects. But the law enforcement profession
has apparently believed, quite rightly in my view, that denying
lawyers access to their clients is impermissible. The Court today
seems to assume that this view was error -- that, from the federal
constitutional perspective, the lawyer's access is, as a question
from the Court put it in oral argument, merely "a matter of
prosecutorial grace." Tr. of Oral Arg. 32. Certainly, nothing in
the Court's Fifth and Sixth Amendment analysis acknowledges that
there is any federal constitutional bar to an absolute
denial of lawyer access to a suspect who is in police custody.

															In sharp contrast to the majority, I firmly believe that the
right to counsel at custodial interrogation is infringed by police
treatment of an attorney that prevents or impedes the attorney's
representation of the suspect at that interrogation. Page 475 U. S. 466 VI The Court devotes precisely five sentences to its conclusion
that the police interference in the attorney's representation of
Burbine did not violate the Due Process Clause. In the majority's
new, the due process analysis is a simple "shock the conscience"
test. Finding its conscience troubled, [ Footnote 2/57 ] but not shocked, the majority rejects
the due process challenge.

															In a variety of circumstances, however, the Court has given a
more thoughtful consideration to the requirements of due process.
For instance, we have concluded that use of a suspect's
post- Miranda warnings silence against him violates the due
process requirement of fundamental fairness because such use
breaches an implicit promise that "silence will carry no penalty."
[ Footnote 2/58 ] Similarly, we
have concluded that

															"the suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment. [ Footnote 2/59 ]"

															We have also concluded that vindictive prosecution violates due
process; [ Footnote 2/60 ] so too
does vindictive sentencing. [ Footnote
2/61 ] Indeed, we have emphasized that analysis of the
"voluntariness" of a confession is frequently a "convenient
shorthand" for reviewing objectionable police methods under the
rubric of the due process requirement of fundamental fairness.
[ Footnote 2/62 ] What emerges
from Page 475 U. S. 467 these cases is not the majority's simple "shock the conscience"
test, but the principle that due process requires fairness,
integrity, and honor in the operation of the criminal justice
system, and in its treatment of the citizen's cardinal
constitutional protections.

															In my judgment, police interference in the attorney-client
relationship is the type of governmental misconduct on a matter of
central importance to the administration of justice that the Due
Process Clause prohibits. Just as the police cannot impliedly
promise a suspect that his silence will not be used against him and
then proceed to break that promise, so too police cannot tell a
suspect's attorney that they will not question the suspect and then
proceed to question him. Just as the government cannot conceal from
a suspect material and exculpatory evidence, so too the government
cannot conceal from a suspect the material fact of his attorney's
communication. Page 475 U. S. 468 Police interference with communications between an attorney and
his client violates the due process requirement of fundamental
fairness. Burbine's attorney was given completely false information
about the lack of questioning, moreover, she was not told that her
client would be questioned regarding a murder charge about which
she was unaware. Burbine, in turn, was not told that his attorney
had phoned and that she had been informed that he would not be
questioned. Quite simply, the Rhode Island police effectively drove
a wedge between an attorney and a suspect through misinformation
and omissions.

															The majority does not "question that on facts more egregious
than those presented here police deception might rise to a level of
a due process violation." Ante at 475 U. S. 432 .
In my view, the police deception disclosed by this record plainly
does rise to that level. VII This case turns on a proper appraisal of the role of the lawyer
in our society. If a lawyer is seen as a nettlesome obstacle to the
pursuit of wrongdoers -- as in an inquisitorial society -- then the
Court's decision today makes a good deal of sense. If a lawyer is
seen as an aid to the understanding and protection of
constitutional rights -- as in an accusatorial society -- then
today's decision makes no sense at all.

															Like the conduct of the police in the Cranston station on the
evening of June 29, 1977, the Court's opinion today serves the goal
of insuring that the perpetrator of a vile crime is punished. Like
the police on that June night as well, however, the Court has
trampled on well-established legal principles and flouted the
spirit of our accusatorial system of justice.

															I respectfully dissent.

															[ Footnote 2/1 ]

															Justice Frankfurter succinctly explained the character of that
distinction in his opinion in Watts v. Indiana, 338 U. S. 49 , 338 U. S. 54 (1949):

															"Ours is the accusatorial, as opposed to the inquisitorial,
system. Such has been the characteristic of Anglo-American criminal
justice since it freed itself from practices borrowed by the Star
Chamber from the Continent whereby an accused was interrogated in
secret for hours on end. See Ploscowe, The Development of
Present-Day Criminal Procedures in Europe and America, 48
Harv.L.Rev. 433, 457-458, 467-473 (1935). Under our system, society
carries the burden of proving its charge against the accused not
out of his own mouth. It must establish its case, not by
interrogation of the accused, even under judicial safeguards, but
by evidence independently secured through skillful investigation.
'The law will not suffer a prisoner to be made the deluded
instrument of his own conviction.' 2 Hawkins, Pleas of the Crown,
c. 46, § 34 (8th ed. 1824). The requirement of specific charges,
their proof beyond a reasonable doubt, the protection of the
accused from confessions extorted through whatever form of police
pressures, the right to a prompt hearing before a magistrate, the
right to assistance of counsel, to be supplied by government when
circumstances make it necessary, the duty to advise an accused of
his constitutional rights -- these are all characteristics of the
accusatorial system and manifestations of its demands. Protracted,
systematic and uncontrolled subjection of an accused to
interrogation by the police for the purpose of soliciting
disclosures or confession is subversive of the accusatorial system. See generally Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 7 -8 (1964); Rogers
v. Richmond, 365 U. S. 534 , 365 U. S.
540 -541 (1961); Bram v. United States, 168 U. S.
532 , 168 U. S. 543 -545
(1897)."

															[ Footnote 2/2 ]

															I agree with the majority that, in considering "the type of
circumstances" that give rise to constitutional rights in this
area, the relationship between an attorney and suspect has "a
federal definition." Ante at 475 U. S. 429 ,
n. 3. In my view, for federal constitutional purposes, members of a
suspect's family may provide a lawyer with authority to act on a
suspect's behalf while the suspect is in custody.

															[ Footnote 2/3 ]

															Tr. of Suppression Hearing 167 (S. H.).

															[ Footnote 2/4 ] Id. at 168.

															[ Footnote 2/5 ]

															"Amid much that is irrelevant or trivial, one serious situation
seems to me to stand out in these cases. The suspect neither had
nor was advised of his right to get counsel. This presents a real
dilemma in a free society. To subject one without counsel to
questioning which may and is intended to convict him is a real
peril to individual freedom. To bring in a lawyer means a real
peril to solution of the crime, because, under our adversary
system, he deems that his sole duty is to protect his client --
guilty or innocent -- and that, in such a capacity, he owes no duty
whatever to help society solve its crime problem. Under this
conception of criminal procedure, any lawyer worth his salt will
tell the suspect in no uncertain terms to make no statement to
police under any circumstances."

															"If the State may arrest on suspicion and interrogate without
counsel, there is no denying the fact that it largely negates the
benefits of the constitutional guaranty of the right to assistance
of counsel. Any lawyer who has ever been called into a case after
his client has 'told all' and turned any evidence he has over to
the Government knows how helpless he is to protect his client
against the facts thus disclosed."

															"I suppose the view one takes will turn on what one thinks
should be the right of an accused person against the State. Is it
his right to have the judgment on the facts? Or is it his right to
have a judgment based on only such evidence as he cannot conceal
from the authorities, who cannot compel him to testify in court and
also cannot question him before? Our system comes close to the
latter by any interpretation, for the defendant is shielded by such
safeguards as no system of law except the Anglo-American concedes
to him. Watts v. Indiana, 338 U. S. 49 , 59 (1949) (Jackson,
J., concurring in result)."

															[ Footnote 2/6 ] United States v. Rabinowitz, 339 U. S.
56 , 339 U. S. 69 (1950) (Frankfurter, J., dissenting).

															[ Footnote 2/7 ]

															T. Macaulay, The History of England 482 (1968 ed.).

															[ Footnote 2/8 ]

															This kind of police-maintained incommunicado questioning
becomes, in the Court's rendition, "an essential part of the
investigatory process." Ante at 475 U. S. 426 .
Police interference in communications between a lawyer and her
client are justified because "[a]dmissions of guilt . . . are
essential to society's compelling interest in finding, convicting,
and punishing those who violate the law." Ibid. It is this
overriding interest in obtaining self-incriminatory statements in
the lawyer-free privacy of the police interrogation room that
motivates the Court's willingness to swallow its admitted "distaste
for the deliberate misleading of an officer of the court." Ante at 475 U. S.
424 .

															[ Footnote 2/9 ] See, e.g., Tague v. Louisiana, 444 U.
S. 469 , 444 U. S. 470 (1980) (per curiam) (State bears " heavy burden'" in proving
validity of waivers given "`during incommunicado interrogation'"); Beckwith v. United States, 425 U.
S. 341 , 425 U. S. 346 (1976) ("special safeguards" are required for "incommunicado
interrogation of individuals in a police-dominated atmosphere"); Darwin v. Connecticut, 391 U. S. 346 , 391 U. S. 349 (1968) (per curiam) (prolonged "incommunicado" interrogation
renders confession involuntary); Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 475 (1966) (State has "heavy burden" in proving validity of waiver of
rights in "incommunicado interrogation"); Haynes v.
Washington, 373 U. S. 503 , 373 U.S. 514 (1963)
("incommunicado detention" rendered confession involuntary); Ashcraft v. Tennessee, 322 U. S. 143 , 322 U. S. 153 ,
n. 8 (1944) ("`Holding incommunicado is objectionable because
arbitrary -- at the mere will and unregulated pleasure of a police
officer'"); Ward v. Texas, 316 U.
S. 547 , 316 U. S. 555 (1942) ("This Court has set aside convictions based upon
confessions extorted from ignorant persons . . . who have been
unlawfully held incommunicado without advice of friends or
counsel"); Lisenba v. California, 314 U.
S. 219 , 314 U. S. 240 (1941) ("[W]here a prisoner, held incommunicado, is subjected to
questioning by officers for long periods, and deprived of the
advice of counsel, we shall scrutinize the record with care to
determine whether, by the use of his confession, he is deprived of
liberty or life through tyrannical or oppressive means"); Wan
v. United States, 266 U. S. 1 , 266 U. S. 11 (1924) (holding of suspect "incommunicado" contributes to
suppression of confession). To be sure, in many of these cases, the evidence showed that the
suspect had requested, and was denied access to, a lawyer. Until
today, however, the Court has never viewed "incommunicado" as
applying only to the denial of the suspect's efforts to reach the
attorney, and not to the attorney's efforts to reach the suspect. See, e.g., Darwin v. Connecticut, 391 U.S. at 391 U. S. 349 (per curiam) (referring both to fact that "petitioner's
lawyers made numerous attempts to communicate with petitioner or
with the officer in charge" and to fact that "petitioner on three
separate occasions sought and was denied permission to communicate
with the outside world" in reaching the "inescapable" conclusion
that "the officers kept petitioner incommunicado"). It is also true
that many of these cases involved incommunicado interrogations for
very long periods of time; not one of those cases suggested that
incommunicado interrogation for shorter periods, maintained by
misinforming attorney and client of each other's actions, was
supported by a compelling societal interest that justified police
deception and misinformation about attorney communications.

															[ Footnote 2/10 ]

															The American Bar Association has summarized the relevant
cases:

															"In all but the last two of the following cases, the Court
excluded the statement(s) obtained. Elfadl v. Maryland, 61
Md.App. 132, 485 A.2d 275 , cert. denied, 303 Md. 42, 491 A.2d 1197,
petition for cert. filed, 54 U.S.L.W. 3019 (U.S. June 21, 1985)
(No. 85-24) (lawyer retained by defendant's wife refused permission
to communicate with defendant or have him informed of counsel's
presence); Lodowski v. Maryland, 302 Md. 691, 490 A.2d
1228 (1985), petition for cert. filed, 54 U.S.L.W. 3019
(U.S. June 21, 1985) (No. 85-23) (police prevented communication
between lawyer and defendant and did not tell defendant that lawyer
was present); Dunn v. State, No. 248-84 (Tex. June 26,
1985), summarized, 37 Crim.L.Rep. (BNA) 2274 (July 17,
1985) (suspect not told that his wife had retained an attorney who
was close at hand); Lewis v. State, 695 P.2d
528 (Okla.1984) (lawyer hired by defendant's parents
misdirected by sheriff throughout jail and courthouse while
defendant, unaware that parents had retained attorney, was being
interrogated in another part of the building); Commonwealth v.
Sherman, 389 Mass. 287, 450
N.E.2d 566 (1983) (police failed to honor lawyer's request to
be present during interrogation, and failed to inform suspect of
the request); Weber v. State, 457
A.2d 674 (Del.1983) (defendant's father and attorney hired by
the father refused access to defendant; police failed to inform
defendant of lawyer's presence); People v.
Smith, 93 Ill. 2d
179 , 442 N.E.2d
1325 (1982) (associate of defendant's retained lawyer denied
access to client based on fabricated claim that defendant was
undergoing drug withdrawal, and would not be interrogated in the
near future; individual never told of lawyer's attempt to see him
although he was given card lawyer left for him); State v.
Matthews, 408 So. 2d
1274 (La.1982) (attorney's request to speak with defendant
refused, and instruction to cease interrogation ignored); State
v. Haynes, 288 Or. 59, 602 P.2d
272 (1979), cert. denied, 446 U.S. 945 (1980) (lawyer
retained by defendant's wife was told where defendant was being
held, but the police moved him before lawyer could offer counsel
and defendant never told of lawyer's request to offer counsel); State v. Jones, 19 Wash. App. 850, [5]78 P.2d 71 (1978)
(defendant not informed that counsel had been retained for him or
that attorney had instructed client not to speak); Commonwealth
v. Hilliard, 471 Pa. 318, 370 A.2d
322 (1977) (lawyer first misinformed that defendant was not in
custody and later denied access to defendant until he confessed;
defendant was not told of lawyer's presence until he confessed); State v. Jackson, 303 So.
2d 734 (La.1974) (lawyer retained by defendant's family denied
permission to see defendant, who was not told of the lawyer's
presence); Commonwealth v. McKenna, 355 Mass. 313, 244
N.E.2d 560 (1969) (lawyer retained by suspect's mother asked to
see client; police misinformed lawyer of suspect's whereabouts and
did not indicate that he was already being interrogated); Blanks v. State, [254 Ga. 420], 330 S.E.2d
575 (1985) (police finished taking confession before advising
defendant that a lawyer was present who wished to see him); State v. Beck, 687 S.W.2d
155 (Mo.1985) (en banc) (lawyer obtained by defendant's mother
at defendant's direction given before he was in custody; lawyer
called the police and asked to be notified when defendant was
arrested, but, at prosecutor's suggestion, police did not so notify
lawyer when defendant was arrested in Florida, nor did they advise
defendant of lawyer's request)."

															Brief for American Bar Association as Amicus Curiae 4,
n. 2.

															Since the filing of the ABA brief, still another State Supreme
Court has expressed this prevailing view that statements obtained
through police interference in communications between an attorney
and a suspect must be suppressed. See Haliburton v.
Florida, 476 So. 2d
192 (Fla.1985) (police continued questioning suspect without
telling him that an attorney retained by his sister was at the
police station seeking to speak with him).

															[ Footnote 2/11 ] See ABA Standards for Criminal Justice 5-5.1 (2d
ed.1980) ("Counsel should be provided to the accused as soon as
feasible after custody begins"); ABA Standards for Criminal Justice
5-7.1 (2d ed.1980) ("At the earliest opportunity, a person in
custody should be effectively placed in communication with a
lawyer").

															[ Footnote 2/12 ]

															Burger, Introduction: The ABA Standards for Criminal Justice, 12
Am.Crim.L.Rev. 251 (1974). See also id. at 253 ("Everyone
connected with criminal justice should become totally familiar with
the substantive content of the Standards. . . . [T]he Justices of
the Supreme Court and hundreds of other judges . . . consult the
Standards and make use of them whenever they are relevant").

															[ Footnote 2/13 ] See, e.g., Caldwell v. Mississippi, 472 U.
S. 320 , 472 U. S. 334 ,
n. 6 (1985); Holloway v. Arkansas, 435 U.
S. 475 , 435 U. S. 480 ,
n. 4 (1978); Dickey v. Florida, 398 U. S.
30 , 398 U. S. 37 -38,
nn. 7 and 8 (1970). Cf. Nix v. Whiteside, ante at 475 U. S.
167 -168 (emphasizing ABA Model Code and Model Rules in
Sixth Amendment analysis).

															[ Footnote 2/14 ] See Brief for American Bar Association as Amicus
Curiae 4 ("The ABA is deeply concerned that, if the police may
constitutionally prevent any communication between a lawyer and an
individual held in isolation, an important right to legal
representation will be lost. . . . Many cases decided across the
country demonstrate that there is cause for concern as to such
police tactics").

															[ Footnote 2/15 ] See 475
U.S. 412 fn2/9|>n. 9, supra. [ Footnote 2/16 ] Lewis v. State, 695 P.2d
528 (Okla. Crim. App.1984).

															[ Footnote 2/17 ] State v. Haynes, 288 Ore. 59, 602 P.2d
272 (1979), cert. denied, 446 U.S. 945 (1980).

															[ Footnote 2/18 ] People v. Smith, 93 Ill. 2d
179 , 442 N.E.2d
1325 (1982).

															[ Footnote 2/19 ] Commonwealth v. McKenna, 355 Mass. 313, 244
N.E.2d 560 (1969).

															[ Footnote 2/20 ] See Miranda v. Arizona, 384 U.S. at 384 U. S. 465 ,
n. 35 (In Escobedo, "[t]he police also prevented the
attorney from consulting with his client. Independent of any other
constitutional proscription, this action constitutes a violation of
the Sixth Amendment right to the assistance of counsel, and
excludes any statement obtained in its wake"); Escobedo v.
Illinois, 378 U. S. 478 , 378 U. S. 487 (1964) ("[I]t would be highly incongruous if our system of
justice permitted the district attorney, the lawyer representing
the State, to extract a confession from the accused while his own
lawyer, seeking to speak with him, was kept from him by the
police'"), quoting People v. Donovan, 13 N.Y.2d 148, 152,
193 N.E.2d 628, 629 (1963). [ Footnote 2/21 ] See infra at 475 U. S.
447 -448; 475
U.S. 412 fn2/25|>n. 25, infra. [ Footnote 2/22 ]

															The Court of Appeals, see 753 F.2d 178, 185 (CA1 1986),
and the dissenting opinion of Justice Kelleher of the Rhode Island
Supreme Court, see 451 A.2d at 38-39, were concerned by
the apparent inconsistency between the finding that there was no
conspiracy to "secrete" Burbine and the unequivocal finding that
attorney Munson's call had been made. I see no inconsistency,
however, because the officer who gave the false information to
attorney Munson acknowledged that Burbine was at the station -- he
did not "secrete" him. The state court's finding that the call was
answered by "Detectives" is especially significant in light of
Lieutenant Ricard's undisputed testimony that, at the time in
question, only he or Detective Ferranti would have answered a call
to the detectives division. S.H. 142. Thus, the state court
finding, and the evidence in the record on which it was based, make
it perfectly clear that either Ricard or Ferranti must have known
of the call. Both categorically denied any such knowledge in their
testimony.

															[ Footnote 2/23 ] See, e.g., Edwards v. Arizona, 451 U.
S. 477 (1981); Miranda v. Arizona, 384 U.
S. 436 (1966). Cf. Oregon v. Bradshaw, 462 U. S. 1039 , 462 U. S.
1044 (1983) (plurality opinion of REHNQUIST, J.)
( Edwards articulated "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").

															[ Footnote 2/24 ]

															In his police report completed the night of June 29, Detective
Ferranti stated, in contrast to his testimony, that he questioned
Burbine before questioning DiOrio. Defendant Ex. D.

															[ Footnote 2/25 ]

															The Court makes its own findings about Burbine's access to a
telephone during this period. Ante at 475 U. S. 418 .
No state court made such a finding, and the record contains no
evidence indicating whether Burbine was told he could use the
phone, whether an outside line was available without use of the
police switchboard, or any number of other possibly relevant
factors.

															[ Footnote 2/26 ] See Testimony of Detective Ferranti, S.H. 152
(Providence police "started to question him relative to the murder
in Providence"). See also Defendant Ex. D (Detective
Ferranti's contemporaneous account) (Burbine "was confronted with
this murder by Lt. Gan[n]on and other members of the PPD Det. Div.
Lt. Ricard and myself. He flatly denied being involved or having
any knowledge of this murder, although he did state that he had
been in the bar with this girl and that he knew her from his
mother, who was friendly with her in the past").

															[ Footnote 2/27 ] See, e.g., Testimony of Lieutenant Gannon, S.H. 21
(agreeing with questioner's statement that "none of these police
officers said anything to Brian Burbine before he said those
things"). Cf. Testimony of Detective Trafford, id. at 79 (Burbine "passed through the detective division
and he was brought to, I believe, one of their interview rooms. . .
. He was muttering something. I really don't know what he was
saying").

															[ Footnote 2/28 ] See id. at 22, 57. Detective Ferranti testified that he
was alone with Burbine for "a couple of minutes." Id. at
174. He also testified that he went into the room, that Burbine
told him to summon the Providence police, and that he complied
"immediately." Id. at 155.

															[ Footnote 2/29 ] See Testimony of Lieutenant Gannon, id. at 63
("I don't know if he knocked on the door. I'm not sure how we were
re-summoned back into the room").

															[ Footnote 2/30 ] See Testimony of Lieutenant Gannon, id. at 62
(noting that, after first statement, officers discussed it, and
that "we were all collectively pleased that we did obtain a
statement from him"). Major Leyden, a high-ranking Providence
officer, had been told about the break in the case, and he arrived
at the Cranston station toward the end of Burbine's statement.

															[ Footnote 2/31 ]

															According to Lieutenant Gannon, "in the second statement, the
questions about the glass and the clothes were Captain Wilson's
ideas." Trial Tr. 387. The state courts made no finding about the
initiation of the conversation leading to the second statement.
According to the signed statement, Lieutenant Gannon stated that
Burbine "remembered something concerning a glass," App. to Pet. for
Cert. 105, and Burbine did not contest that account. Detective
Ferranti testified that Providence police told him Burbine
initiated the conversation. Trial Tr. 252. In contrast, Providence
Detective Trafford testified that he was "not sure" how they
concluded Burbine wished to speak again, but he "believe[d]
Detective Ferranti notified us." Id. at 443. Lieutenant
Gannon testified that he "believe[d]" Burbine "indicated by
knocking on the door." Id. at 409.

															[ Footnote 2/32 ] See, e.g., Brewer v. Williams, 430 U.
S. 387 , 430 U. S. 404 (1977) ("[C]ourts indulge in every reasonable presumption against
waiver"); Miranda v. Arizona, 384 U.S. at 384 U. S. 475 ("If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel. . . . Since the State
is responsible for establishing the isolated circumstances under
which the interrogation takes place, and has the only means of
making available corroborated evidence of warnings given during
incommunicado interrogation, the burden is rightly on its
shoulders"); Johnson v. Zerbst, 304 U.
S. 458 , 304 U. S. 454 (1938) (" [C]ourts indulge every reasonable presumption against
waiver' of fundamental constitutional rights, and . . . we `do not
presume acquiescence in the loss of fundamental rights'")
(footnotes omitted). [ Footnote 2/33 ] See Miranda, 384 U.S. at 384 U. S. 455 ("[T]he very fact of custodial interrogation exacts a heavy toll on
individual liberty and trades on the weakness of individuals").

															[ Footnote 2/34 ]

															There is a natural tendency to discredit the testimony of the
suspect because of his obvious interest, but it is also true that
there have been cases in which the desire to insure a conviction of
an apparently guilty suspect has led police officers to color their
testimony. As Judge Wilkey observed in a different context, a
police officer may "feel that he has a higher duty' than the
truth. He may perjure himself to convict the defendant." Wilkey,
The Exclusionary Rule, 62 Judicature 215, 226 (1978). [ Footnote 2/35 ] See United States v. Carignan, 342 U. S.
36 , 342 U. S. 46 (1951) (Douglas, J., concurring) ("What happens behind doors that
are opened and closed at the sole discretion of the police is a
black chapter in every country -- the free as well as the despotic,
the modern as well as the ancient").

															[ Footnote 2/36 ] See, e.g., Fare v. Michael C., 442 U.
S. 707 , 442 U. S.
724 -725 (1979); North Carolina v. Butler, 441 U. S. 369 , 441 U. S.
374 -375 (1979); Faretta v. California, 422 U. S. 806 , 422 U. S. 835 (1975).

															[ Footnote 2/37 ] See also Solem v. Stumes, 465 U.
S. 638 , 465 U. S. 641 , 465 U. S.
647 -648 (1984) (Under Edwards, "once a suspect
has invoked the right to counsel, any subsequent conversation must
be initiated by him. . . . It does not in any way cast doubt on the
legitimacy or necessity of Edwards to acknowledge that, in
some cases, a waiver could be knowing, voluntary, and intelligent
even though it occurred when the police recommenced questioning
after an accused had invoked the right to counsel").

															[ Footnote 2/38 ]

															The Court cites Johnson v. Zerbst, 304 U.
S. 458 (1938), a case involving a claim that a defendant
had waived his right to trial counsel. I find it inconceivable
that, in such a situation, an otherwise sufficient series of
questions and answers can support a valid waiver if the government
misinforms an attorney about the defendant's trial date, and if the
government fails to tell the defendant of the attorney's
communications. Yet that would be the consequence of the Court's
"what the suspect doesn't know can't hurt him" approach to this
case.

															[ Footnote 2/39 ]

															It is thus clear that the majority's comparison of a suspect in
Burbine's position with "the same defendant . . . had a lawyer not
telephoned the police station," ante at 475 U. S. 422 ,
sets up a false comparison. For Miranda's condemnation of
trickery and cajolery requires that an assessment of police conduct
figure importantly in the assessment of a suspect's decision to
waive his fundamental constitutional rights. In the majority's
comparison, however, the police conduct is irrelevant. In contrast,
the appropriate comparison is between a suspect in Burbine's
position and a suspect who is otherwise tricked and deceived into a
waiver of his rights. Miranda itself, as well as the
long-established presumption against the waiver of constitutional
rights, requires that both kinds of waiver be held invalid.

															[ Footnote 2/40 ] See n. 475
U.S. 412 fn2/10|>10, supra. Aside from this case,
the only two exceptions were decided in 1985. Those recent cases
may reflect a recognition that this Court is increasingly less than
faithful to Miranda's clear teachings. See, e.g., New
York v. Quarles, 467 U. S. 649 (1984); Oregon v. Elstad, 470 U.
S. 298 (1985). Cf. New York v. Quarles, 467
U.S. at 467 U. S. 660 (O'CONNOR, J., dissenting in part) (" Miranda is now the
law, and, in my view, the Court has not provided sufficient
justification for departing from it or for blurring its now clear
strictures").

															[ Footnote 2/41 ] See Lodowski v. State, 302 Md. 691, 721, 490 A.2d 1228,
1243 (1985) ("We have stated our view that a suspect must be fully
informed of the actual presence and availability of counsel who
seeks to confer with him in order that any waiver of a right to
counsel, as established by Miranda, can be knowing and
intelligent"); Haliburton v. Florida, 476 So. 2d at 194
("In order for the right to counsel to be meaningful, a defendant
must be told when an attorney who has been retained on his behalf
is trying to advise him"); Lewis v. State, 695 P.2d at 529
("The dispositive issue on this appeal is . . . whether a
defendant's waiver of his rights to counsel and against
self-incrimination is knowingly and intelligently made when the
defendant is not informed of his attorney's availability at police
headquarters. We hold today that such a waiver is constitutionally
invalid"); Commonwealth v. Sherman, 389 Mass. 287, 296, 450
N.E.2d 566 , 571 (1983) ("[W]e conclude that the statement of
the defendant must be suppressed because, under principles of
construction of Miranda, the failure of the police to
inform the defendant of the attorney's request [to see him]
vitiated the defendant's waiver of his Miranda rights"); Weber v. State, 457 A.2d
674 , 685 (Del.1983) ("When a suspect does not know that an
attorney, who has been retained or properly designated to represent
him, is actually present in the police station seeking an
opportunity to render legal assistance, and the police do not
inform him of that fact, there can be no intelligent and knowing
waiver"); People v. Smith, 93 Ill. 2d at 189, 442 N.E.2d
at 1329 ("We hold that, when police, prior to or during custodial
interrogation, refuse an attorney appointed or retained to assist a
suspect access to the suspect, there can be no knowing waiver of
the right to counsel if the suspect has not been informed that the
attorney was present and seeking to consult with him"); State
v. Haynes, 288 Ore., at 70, 602 P.2d at 277 ("We hold only
that, when unknown to the person in this situation an identified
attorney is actually available and seeking an opportunity to
consult with him, and the police do not inform him of that fact,
any statement or the fruits of any statement obtained after the
police themselves know of the attorney's efforts to reach the
arrested person cannot be rendered admissible on the theory that
the person knowingly and intelligently waived counsel").

															As noted, two state courts besides the Rhode Island Supreme
Court have reached a contrary conclusion. See State v.
Beck, 687 S.W.2d
155 , 159 (Mo.1985) ("In light of the careful attention the
deputies gave to insuring that defendant was properly informed of
his Miranda rights, his unequivocal responses and
determined conduct evince nothing less than a deliberate, firm,
knowing, and intelligent choice to speak without the prior counsel
of Ms. Hendrix or any other attorney"); Blanks v. State, 254 Ga. 420, 423, 330 S.E.2d
575 , 579 (1985) ("In this case, Blanks was advised of his right
to legal assistance on numerous occasions. The record shows
overwhelmingly that he knowingly, intelligently, and voluntarily
waived this right and spoke willingly to law enforcement
officers").

															[ Footnote 2/42 ] See also People v. Smith, 93 Ill. 2d at 187, 442 N.E.2d
at 1328-1329; Commonwealth v. Sherman, 389 Mass., at 291,
450 N.E.2d at 568.

															The majority mischaracterizes this dissent by stating that its
"major premise" is that

															" Miranda requires the police to inform a suspect of any
and all information that would be useful to a decision whether to
remain silent or speak with the police." Ante at 475 U. S. 433 ,
n. 4. The majority's response ignores the fact that the police
action here is not simply a failure to provide "useful"
information; rather, it is affirmative police interference in a
communication between an attorney and a suspect. Moreover, the
"information" intercepted by the police bears directly on the right
to counsel that police are asking the suspect to waive. The
"information" at issue is thus far different from information about
"the nature and quality of the evidence," Oregon v.
Elstad, 470 U.S. at 470 U. S. 317 ,
or about a grand jury witness' possible target status, United
States v. Washington, 431 U. S. 181 , 431 U. S.
188 -189 (1977).

															[ Footnote 2/43 ]

															In contrast, the theory of the Rhode Island Supreme Court's
decision was that, as a matter of fact, knowledge of attorney
Munson's call would not have affected Burbine's decision to
confess. State v. Burbine, 451
A.2d 22 , 29 (1982).

															[ Footnote 2/44 ]

															After endorsing the statement by "one of our country's
distinguished jurists" that the quality of a nation's civilization
can be largely measured by the methods it uses in the enforcement
of its criminal law, the Court wrote:

															"If the individual desires to exercise his privilege, he has the
right to do so. This is not for the authorities to decide. An
attorney may advise his client not to talk to police until he has
had an opportunity to investigate the case, or he may wish to be
present with his client during any police questioning. In doing so,
an attorney is merely exercising the good professional judgment he
has been taught. This is not cause for considering the attorney a
menace to law enforcement. He is merely carrying out what he is
sworn to do under his oath -- to protect to the extent of his
ability the rights of his client. In fulfilling this
responsibility, the attorney plays a vital role in the
administration of criminal justice under our Constitution." Miranda v. Arizona, 384 U.S. at 384 U. S.
480 -481.

															[ Footnote 2/45 ]

															A recent treatise describes the significant effect of Dunaway: "Over the years, the impression generally prevailed that the
police could 'pick-up' suspects for questioning. In 1979, however,
the Supreme Court of the United States held, in Dunaway v. New
York, that a confession obtained after a 'pick-up' without
probable cause ( i.e., without reasonable grounds) to make
an actual arrest could not be used as evidence."

															F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and
Confessions 211 (3d ed.1986).

															[ Footnote 2/46 ]

															Thus, the Court asks itself:

															(1) "To what extent should the police be held accountable for
knowing that the accused has counsel?" Ante at 475 U. S. 425 .
The simple answer is that police should be held accountable to the
extent that the attorney or the suspect informs the police of the
representation.

															(2) "Is it enough that someone in the station house knows, or
must the interrogating officer himself know of counsel's efforts to
contact the suspect?" Ibid. Obviously, police should be
held responsible for getting a message of this importance from one
officer to another.

															(3) "Do counsel's efforts to talk to the suspect concerning one
criminal investigation trigger the obligation to inform the
defendant before interrogation may proceed on a wholly separate
matter?" Ibid. As the facts of this case forcefully
demonstrate, the answer is "yes."

															[ Footnote 2/47 ]

															Two examples will illustrate the one-sided character of the
Court's conception of the clarity of the Miranda warnings.
Although a suspect is told that a lawyer will be appointed if he
"cannot afford one," he may have no way of determining whether his
resources are adequate to pay an attorney; even Members of this
Court cannot agree when a person is too poor to pay his own legal
costs. See, e.g., Pfeil v. Rogers, 474 U.S. 812 (1985)
(Court splits 5-4 on whether to grant petitioner leave to proceed in forma pauperis ); Barrett v. United States Customs
Service, 474 U.S. 812 (1985) (same). Similarly, although a
suspect is entitled to rely on the implicit promise that his
silence will not be used against him, Wainwright v.
Greenfield, 474 U. S. 284 (1986); Doyle v. Ohio, 426 U. S. 610 (1976), it is by no means clear that every suspect will understand
that promise; many may fear that silence or a request for counsel
will be construed as an admission of guilt. Cf. Griffin v.
California, 380 U. S. 609 ,
610-611 (1965) (prosecutor argued that defendant's silence was
probative of his guilt); App. in Michigan v. Jackson, O.T.
1985, No. 84-1531, pp. 157-158 (police statement to suspect) ("I
think you need a brick to hit you against a wall to realize that
your in serious trouble here, and that the only way that you have
any hope is by us. I don't know what your gonna think, how if you
want an attorney, I'll tell you what an attorney is gonna tell ya,
an attorney is gonna tell ya don't talk to police. . . . But the
attorney doesn't go to jail, does he?").

															[ Footnote 2/48 ]

															Indeed, in contrast to the majority's remarks about clarity, the
operation of the principle expressed by almost all the state courts
would be far clearer than the operation of the Court's contrary
principle. For it is surely easier to administer a rule that
applies to an external event, such as an attorney's telephone call
or a visit to the police station, than a rule that requires an
evaluation of the state of mind of a person undergoing custodial
interrogation.

															[ Footnote 2/49 ]

															In contrast to the Court's opinion today, the Court in the past
has had no problems applying principles of agency to the invocation
of constitutional rights. See Brewer v. Williams, 430 U.S.
at 430 U. S. 405 (the accused "had effectively asserted his right to counsel by
having secured attorneys at both ends of the automobile trip, both
of whom, acting as his agents, had made clear to the
police that no interrogation was to occur during the journey")
(emphasis added).

															[ Footnote 2/50 ] See, e.g., Engle v. Isaac, 456 U.
S. 107 , 456 U. S. 134 (1982).

															[ Footnote 2/51 ] See Edwards v. Arizona, 451 U.S. at 451 U. S. 482 (" Miranda . . . declared that an accused has a Fifth and
Fourteenth Amendment right to have counsel present during custodial
interrogation"); Miranda, 384 U.S. at 384 U. S. 479 .
In his Miranda dissent, Justice Harlan correctly noted
that the Court had held that a person in custody "has a right to
have present an attorney during the questioning, and that, if
indigent, he has a right to a lawyer without charge." Id. at 384 U. S. 504 .
The standard written waiver form used by the police in this case
recited: "I have the right to the presence of an attorney prior to
and during any questioning by the police."

															In his argument for the United States as amicus curiae, the Solicitor General advanced the remarkable suggestion that Miranda's requirement that an individual be told that he
has a right to consult with counsel while in custody is "a sort of
a white lie" that is "harmless" and "useful." Tr. of Oral Arg. 21.
He contended that "police do not have to provide a lawyer if he
asks for a lawyer. They need simply terminate the interrogation." Ibid. I find this view completely untenable, and I take it
that the Court's opinion, in today's sanctioning of police
deception, does not in any way accept the suggestion that this
Court's required warnings are themselves a constitutionally
compelled form of deception, or "white lie."

															[ Footnote 2/52 ] See, e.g., Strickland v. Washington, 466 U.
S. 668 , 466 U. S. 690 (1984) (when client challenges effectiveness of assistance,
"counsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable
professional judgment"); Wainwright v. Sykes, 433 U. S.
72 , 433 U. S. 91 , n.
14 (1977) ("[D]ecisions of counsel relating to trial strategy, even
when made without the consultation of the defendant, would bar
direct federal review of claims thereby forgone, except where the circumstances are exceptional'"). [ Footnote 2/53 ]

															Prevailing norms of legal practice prevent a lawyer from
communicating with a party, rather than a lawyer. See Disciplinary Rule 7-104(A)(1), ABA Code of Professional
Responsibility (1980) ("During the course of his representation of
a client, a lawyer shall not: communicate or cause another to
communicate on the subject of the representation with a party he
knows to be represented by a lawyer in that matter unless he has
the prior consent of the lawyer representing such other party or is
authorized by law to do so"). Cf. United States v. Foley, 735 F.2d 45, 48 (CA2 1984) (prosecutorial practice of interviewing
defendants in the absence of counsel before arraignment "raises
serious constitutional questions" and "contravene[s] the principles
of DR7-104(A)(1))," cert. denied sub nom. Edler v. United
States, 469 U.S. 1161 (1985); State v. Yatman, 320
So. 2d 401, 403 (Fla.App.1975) ("Disciplinary Rule 7-104 of the
Code of Professional Responsibility applies equally to lawyers
involved in the prosecution of criminal cases as in civil cases. .
. . If any communication with a person represented by counsel on
the subject under litigation is prohibited, then taking the
deposition of an individual charged with a criminal offense without
notice to his counsel regarding matters which are relevant to the
criminal charges pending against said represented individual is
also clearly prohibited by the foregoing disciplinary rule"); United States v. Springer, 460 F.2d 1344, 1354-1355 (CA7
1972) (Stevens, J., dissenting) (interview of defendant in absence
of counsel would have violated DR7-104(A) in civil context and
violated "procedural regularity" required by Due Process Clause in
criminal context). These cases suggest the established legal
principle that an attorney and his client frequently share a common
identity for purposes related to the client's legal interests.

															[ Footnote 2/54 ] See 475
U.S. 412 fn2/10|>n. 10, supra. [ Footnote 2/55 ] State v. Haynes, 288 Ore. 59, 602 P.2d
272 (1979), cert. denied, 446 U.S. 945 (1980).

															[ Footnote 2/56 ] Lewis v. State, 695 P.2d
528 (Okla.Crim.App.1984).

															[ Footnote 2/57 ] See ante at 475 U. S. 424 ("[W]e share respondent's distaste for the deliberate misleading of
an officer of the court").

															[ Footnote 2/58 ] See Wainwright v. Greenfield, 474 U.S. at 474 U. S. 295 ; Doyle v. Ohio, 426 U.S. at 426 U. S.
618 .

															[ Footnote 2/59 ] Brady v. Maryland, 373 U. S. 83 , 373 U. S. 87 (1963). See also United States v. Bagley, 473 U.
S. 667 (1985); United States v. Agurs, 427 U. S. 97 (1976); Moore v. Illinois, 408 U.
S. 786 (1972).

															[ Footnote 2/60 ] Blackledge v. Perry, 417 U. S. 21 (1974).

															[ Footnote 2/61 ] North Carolina v. Pearce, 395 U.
S. 711 (1969).

															[ Footnote 2/62 ]

															"This Court has long held that certain interrogation techniques,
either in isolation or as applied to the unique characteristics of
a particular suspect, are so offensive to a civilized system of
justice that they must be condemned under the Due Process Clause of
the Fourteenth Amendment. Brown v. Mississippi, 297 U. S.
278 (1936), was the wellspring of this notion, now
deeply embedded in our criminal law. Faced with statements
extracted by beatings and other forms of physical and psychological
torture, the Court held that confessions procured by means
'revolting to the sense of justice' could not be used to secure a
conviction. Id. at 297 U. S.
286 . On numerous subsequent occasions, the Court has set
aside convictions secured through the admission of an improperly
obtained confession. . . . Although these decisions framed the
legal inquiry in a variety of different ways, usually through the
'convenient shorthand' of asking whether the confession was
'involuntary,' Blackburn v. Alabama, 361 U. S.
199 , 361 U. S. 207 (1960), the
Court's analysis has consistently been animated by the view that
'ours is an accusatorial, and not an inquisitorial, system,' Rogers v. Richmond, 365 U. S. 534 , 365 U. S.
541 (1961), and that, accordingly, tactics for eliciting
inculpatory statements must fall within the broad constitutional
boundaries imposed by the Fourteenth Amendment's guarantee of
fundamental fairness. Indeed, even after holding that the Fifth
Amendment privilege against compulsory self-incrimination applies
in the context of custodial interrogations, . . . and is binding on
the States, . . . the Court has continued to measure confessions
against the requirements of due process. See, e.g., Mincey v.
Arizona, supra, at 402; Beecher v. Alabama, 389 U. S.
35 , 389 U. S. 38 (1967) (per
curiam)." Miller v. Fenton, 474 U. S. 104 , 474 U. S.
109 -110 (1985).

Summary: The Supreme Court ruled that the police's failure to inform the respondent of his attorney's phone call did not violate his Fifth Amendment rights as he was properly informed of his rights and waived them. The Court found that the respondent's sister's actions were not enough to invoke his right to counsel as he was unaware of her efforts and did not request an attorney himself. The Court also held that the police's conduct, while misleading, did not violate the respondent's due process rights.