U.S. Supreme Court Brewer v. Williams, 430
U.S. 387 (1977) Brewer v. Williams No. 74-1263 Argued October 4,
1976 Decided March 23,
1977 430
U.S. 387 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE EIGHTH
CIRCUIT Syllabus Respondent was arrested, arraigned, and committed to jail in
Davenport, Iowa, for abducting a 10-year-old girl in Des Moines,
Iowa. Both his Des Moines lawyer and his lawyer at the Davenport
arraignment advised respondent not to make any statements until
after consulting with the Des Moines lawyer upon being returned to
Des Moines, and the police officers who were to accompany
respondent on the automobile drive back to Des Moines agreed not to
question him during the trip. During the trip, respondent expressed
no willingness to be interrogated in the absence of an attorney,
but instead stated several times that he would tell the whole story
after seeing his Des Moines lawyer. However, one of the police
officers, who knew that respondent was a former mental patient and
was deeply religious, sought to obtain incriminating remarks from
respondent by stating to him during the drive that he felt they
should stop and locate the girl's body because her parents were
entitled to a Christian burial for the girl, who was taken away
from them on Christmas Eve. Respondent eventually made several
incriminating statements in the course of the trip, and finally
directed the police to the girl's body. Respondent was tried and
convicted of murder, over his objections to the admission of
evidence relating to or resulting from any statements he made
during the automobile ride, and the Iowa Supreme Court affirmed,
holding, as did the trial court, that respondent had waived his
constitutional right to the assistance of counsel. Respondent then
petitioned for habeas corpus in Federal District Court, which held
that the evidence in question had been wrongly admitted at
respondent's trial on the ground, inter alia, that he had
been denied his constitutional right to the assistance of counsel,
and further ruled that he had not waived that right. The Court of
Appeals affirmed. Petitioner warden claims that the District Court,
in making its findings of fact, disregarded 28 U.S.C. § 2254(d),
which provides that, subject to certain exceptions, federal habeas
corpus courts shall accept as correct the factual determinations
made by state courts. Held: 1. The District Court correctly applied 28 U.S.C. § 2254(d) in
its Page 430 U. S. 388 resolution of the disputed evidentiary facts where it appears
that it made no findings of fact in conflict with those of the Iowa
courts, and that its additional findings of fact based upon its
examination of the state court record were conscientiously and
carefully explained, and were approved by the Court of Appeals as
being supported by the record. Pp. 395-397.

															2. Respondent was deprived of his constitutional right to
assistance of counsel. Pp. 430 U. S. 397 -401.

															(a) The right to counsel granted by the Sixth and Fourteenth
Amendments means at least that a person is entitled to a lawyer's
help at or after the time that judicial proceedings have been
initiated against him, and here there is no doubt that judicial
proceedings had been initiated against respondent before the
automobile trip started, since a warrant had been issued for his
arrest, he had been arraigned, and had been committed to jail. Pp. 430 U. S.
398 -399.

															(b) An individual against whom adversary proceedings have
commenced has a right to legal representation when the government
interrogates him, Massiah v. United States, 377 U.
S. 201 , and since here the police officer's "Christian
burial speech" was tantamount to interrogation, respondent was
entitled to the assistance of counsel at the time he made the
incriminating statements. Pp. 430 U. S.
399 -401.

															3. The circumstances of record provide, when viewed in light of
respondent's assertions of his right to counsel, no reasonable
basis for finding that respondent waived his right to the
assistance of counsel, the record falling far short of sustaining
the State's burden to prove "an intentional relinquishment or
abandonment of a known right or privilege," Johnson v.
Zerbst, 304 U. S. 458 , 304 U. S. 464 .
Pp. 430 U. S.
401 -406.

															509 F.2d 227, affirmed.

															STEWART, J., delivered the opinion of the Court, in which
BRENNAN, MARSHALL, POWELL, and STEVENS, JJ., joined. MARSHALL, J., post, p. 430 U. S. 406 ,
POWELL, J., post, p. 430 U. S. 409 ,
and STEVENS, J., post, p. 430 U. S. 414 ,
filed concurring opinions. BURGER, C.J., filed a dissenting
opinion, post, p. 430 U. S. 415 . WHITE, J., filed a dissenting opinion, in
which BLACKMUN and REHNQUIST, JJ., joined, post, p. 430 U. S. 429 .
BLACKMUN, J., filed a dissenting opinion, in which WHITE and
REHNQUIST, JJ., joined, post, p. 430 U. S.
438 . Page 430 U. S. 389 MR. JUSTICE STEWART delivered the opinion of the Court.

															An Iowa trial jury found the respondent, Robert Williams, guilty
of murder. The judgment of conviction was affirmed in the Iowa
Supreme Court by a closely divided vote. In a subsequent habeas
corpus proceeding, a Federal District Page 430 U. S. 390 Court ruled that, under the United States Constitution, Williams
is entitled to a new trial, and a divided Court of Appeals for the
Eighth Circuit agreed. The question before us is whether the
District Court and the Court of Appeals were wrong. I On the afternoon of December 24, 1968, a 10-year-old girl named
Pamela Powers went with her family to the YMCA in Des Moines, Iowa,
to watch a wrestling tournament in which her brother was
participating. When she failed to return from a trip to the
washroom, a search for her began. The search was unsuccessful.

															Robert Williams, who had recently escaped from a mental
hospital, was a resident of the YMCA. Soon after the girl's
disappearance, Williams was seen in the YMCA lobby carrying some
clothing and a large bundle wrapped in a blanket. He obtained help
from a 14-year-old boy in opening the street door of the YMCA and
the door to his automobile parked outside. When Williams placed the
bundle in the front seat of his car, the boy "saw two legs in it
and they were skinny and white." Before anyone could see what was
in the bundle, Williams drove away. His abandoned car was found the
following day in Davenport, Iowa, roughly 160 miles east of Des
Moines. A warrant was then issued in Des Moines for his arrest on a
charge of abduction.

															On the morning of December 26, a Des Moines lawyer named Henry
McKnight went to the Des Moines police station and informed the
officers present that he had just received a long-distance call
from Williams, and that he had advised Williams to turn himself in
to the Davenport police. Williams did surrender that morning to the
police in Davenport, and they booked him on the charge specified in
the arrest warrant and gave him the warnings required by Miranda v. Arizona, 384 U. S. 436 . The
Davenport police then telephoned Page 430 U. S. 391 their counterparts in Des Moines to inform them that Williams
had surrendered. McKnight, the lawyer, was still at the Des Moines
police headquarters, and Williams conversed with McKnight on the
telephone. In the presence of the Des Moines chief of police and a
police detective named Leaming, McKnight advised Williams that Des
Moines police officers would be driving to Davenport to pick him
up, that the officers would not interrogate him or mistreat him,
and that Williams was not to talk to the officers about Pamela
Powers until after consulting with McKnight upon his return to Des
Moines. As a result of these conversations, it was agreed between
McKnight and the Des Moines police officials that Detective Leaming
and a fellow officer would drive to Davenport to pick up Williams,
that they would bring him directly back to Des Moines, and that
they would not question him during the trip.

															In the meantime, Williams was arraigned before a judge in
Davenport on the outstanding arrest warrant. The judge advised him
of his Miranda rights and committed him to jail. Before
leaving the courtroom, Williams conferred with a lawyer named
Kelly, who advised him not to make any statements until consulting
with McKnight back in Des Moines.

															Detective Leaming and his fellow officer arrived in Davenport
about noon to pick up Williams and return him to Des Moines. Soon
after their arrival, they met with Williams and Kelly, who, they
understood, was acting as Williams' lawyer. Detective Leaming
repeated the Miranda warnings, and told Williams:

															"[W]e both know that you're being represented here by Mr. Kelly
and you're being represented by Mr. McKnight in Des Moines, and . .
. I want you to remember this because we'll be visiting between
here and Des Moines."

															Williams then conferred again with Kelly alone, and, after this
conference, Kelly reiterated to Detective Leaming that Page 430 U. S. 392 Williams was not to be questioned about the disappearance of
Pamela Powers until after he had consulted with McKnight back in
Des Moines. When Leaming expressed some reservations, Kelly firmly
stated that the agreement with McKnight was to be carried out --
that there was to be no interrogation of Williams during the
automobile journey to Des Moines. Kelly was denied permission to
ride in the police car back to Des Moines with Williams and the two
officers.

															The two detectives, with Williams in their charge, then set out
on the 160-mile drive. At no time during the trip did Williams
express a willingness to be interrogated in the absence of an
attorney. Instead, he stated several times that "[w]hen I get to
Des Moines and see Mr. McKnight, I am going to tell you the whole
story." Detective Leaming knew that Williams was a former mental
patient, and knew also that he was deeply religious.

															The detective and his prisoner soon embarked on a wide-ranging
conversation covering a variety of topics, including the subject of
religion. Then, not long after leaving Davenport and reaching the
interstate highway, Detective Leaming delivered what has been
referred to in the briefs and oral arguments as the "Christian
burial speech." Addressing Williams as "Reverend," the detective
said:

															"I want to give you something to think about while we're
traveling down the road. . . . Number one, I want you to observe
the weather conditions, it's raining, it's sleeting, it's freezing,
driving is very treacherous, visibility is poor, it's going to be
dark early this evening. They are predicting several inches of snow
for tonight, and I feel that you yourself are the only person that
knows where this little girl's body is, that you yourself have only
been there once, and if you get a snow on top of it you yourself
may be unable to find it. And, since we will be going right past
the area on the way into Page 430 U. S. 393 Des Moines, I felt that we could stop and locate the body, that
the parents of this little girl should be entitled to a Christian
burial for the little girl who was snatched away from them on
Christmas [E]ve and murdered. And I feel we should stop and locate
it on the way in, rather than waiting until morning and trying to
come back out after a snow storm, and possibly not being able to
find it at all."

															Williams asked Detective Leaming why he thought their route to
Des Moines would be taking them past the girl's body, and Leaming
responded that he knew the body was in the area of Mitchellville --
a town they would be passing on the way to Des Moines. [ Footnote 1 ] Leaming then stated: "I do
not want you to answer me. I don't want to discuss it any further.
Just think about it as we're riding down the road."

															As the car approached Grinnell, a town approximately 100 miles
west of Davenport, Williams asked whether the police had found the
victim's shoes. When Detective Leaming replied that he was unsure,
Williams directed the officers to a service station where he said
he had left the shoes; a search for them proved unsuccessful. As
they continued towards Des Moines, Williams asked whether the
police had found the blanket, and directed the officers to a rest
area where he said he had disposed of the blanket. Nothing was
found. The car continued towards Des Moines, and as it approached
Mitchellville, Williams said that he would show the officers where
the body was. He then directed the police to the body of Pamela
Powers.

															Williams was indicted for first-degree murder. Before trial, his
counsel moved to suppress all evidence relating to or resulting
from any statements Williams had made during the automobile ride
from Davenport to Des Moines. After Page 430 U. S. 394 an evidentiary hearing, the trial judge denied the motion. He
found that

															"an agreement was made between defense counsel and the police
officials to the effect that the Defendant was not to be questioned
on the return trip to Des Moines,"

															and that the evidence in question had been elicited from
Williams during "a critical stage in the proceedings requiring the
presence of counsel on his request." The judge ruled, however, that
Williams had "waived his right to have an attorney present during
the giving of such information." [ Footnote 2 ]

															The evidence in question was introduced over counsel's
continuing objection at the subsequent trial. The jury found
Williams guilty of murder, and the judgment of conviction was
affirmed by the Iowa Supreme Court, a bare majority of whose
members agreed with the trial court that Williams had "waived his
right to the presence of his counsel" on the automobile ride from
Davenport to Des Moines. State v. Williams, 182 N.W.2d 396 ,
402. The four dissenting justices expressed the view that,

															"when counsel and police have agreed defendant is not to be
questioned until counsel is present and defendant has been advised
not to talk and repeatedly has stated he will tell the whole story
after he talks with counsel, the state should be required to make a
stronger showing of intentional voluntary waiver than was made
here." Id. at 408.

															Williams then petitioned for a writ of habeas corpus in the
United States District Court for the Southern District of Iowa.
Counsel for the State and for Williams stipulated that "the case
would be submitted on the record of facts and proceedings in the
trial court, without taking of further testimony." The District
Court made findings of fact as summarized above, and concluded as a
matter of law that the evidence in question had been wrongly
admitted at Page 430 U. S. 395 Williams' trial. This conclusion was based on three alternative
and independent grounds: (1) that Williams had been denied his
constitutional right to the assistance of counsel; (2) that he had
been denied the constitutional protections defined by this Court's
decisions in Escobedo v. Illinois, 378 U.
S. 478 , and Miranda v. Arizona, 384 U.
S. 436 ; and (3) that, in any event, his
self-incriminatory statements on the automobile trip from Davenport
to Des Moines had been involuntarily made. Further, the District
Court ruled that there had been no waiver by Williams of the
constitutional protections in question. 375 F.
Supp. 170 .

															The Court of Appeals for the Eighth Circuit, with one judge
dissenting, affirmed this judgment, 509 F.2d 227, and denied a
petition for rehearing en banc. We granted certiorari to consider
the constitutional issues presented. 423 U.S. 1031. A Before turning to those issues, we must consider the
petitioner's threshold claim that the District Court disregarded
the provisions of 28 U.S.C. § 2254(d) in making its findings of
fact in this case. That statute, which codifies most of the
criteria set out in Townsend v. Sain, 372 U.
S. 293 , provides that, subject to enumerated exceptions,
federal habeas corpus courts shall accept as correct the factual
determinations made by the courts of the States. [ Footnote 3 ] Page 430 U. S. 396 We conclude that there was no disregard of § 2254(d) in this
case. Although either of the parties might well have requested an
evidentiary hearing in the federal habeas corpus proceedings, Townsend v. Sain, supra, at 372 U. S. 322 ,
they both instead voluntarily agreed in advance that the federal
court should decide the case on the record made in the courts of
the State. In so proceeding, the District Court made no Page 430 U. S. 397 findings of fact in conflict with those of the Iowa courts. The
District Court did make some additional findings of fact based upon
its examination of the state court record, among them the findings
that Kelly, the Davenport lawyer, had requested permission to ride
in the police car from Davenport to Des Moines, and that Detective
Leaming had refused this request. But the additional findings were
conscientiously and carefully explained by the District Court, 375
F. Supp. at 175-176, and were reviewed and approved by the Court of
Appeals, which expressly held that "the District Court correctly
applied 28 U.S.C. § 2254 in its resolution of the disputed
evidentiary facts, and that the facts as found by the District
Court had substantial basis in the record," 509 F.2d at 231. The
strictures of 28 U.S.C. § 2254(d) require no more. [ Footnote 4 ] B As stated above, the District Court based its judgment in this
case on three independent grounds. The Court of Appeals appears to
have affirmed the judgment on two of those grounds. [ Footnote 5 ] We have concluded that only one
of them need be considered here.

															Specifically, there is no need to review in this case the
doctrine of Miranda v. Arizona, a doctrine designed to
secure the constitutional privilege against compulsory
self-incrimination, Michigan v. Tucker, 417 U.
S. 433 , 417 U. S.
438 -439. It is equally unnecessary to evaluate the
ruling of the District Court that Williams' self-incriminating
statements were, indeed, involuntarily made. Cf. Spano v. New
York, 360 U. S. 315 . For
it is clear that the judgment before us must, in any event, be
affirmed upon the ground that Williams was deprived Page 430 U. S. 398 of a different constitutional right -- the right to the
assistance of counsel.

															This right, guaranteed by the Sixth and Fourteenth Amendments,
is indispensable to the fair administration of our adversary system
of criminal justice. Its vital need at the pretrial stage has
perhaps nowhere been more succinctly explained than in Mr. Justice
Sutherland's memorable words for the Court 44 years ago in Powell v. Alabama, 287 U. S. 45 , 287 U. S.
57 :

															"[D]uring perhaps the most critical period of the proceedings
against these defendants, that is to say, from the time of their
arraignment until the beginning of their trial, when consultation,
thorough-going investigation, and preparation were vitally
important, the defendants did not have the aid of counsel in any
real sense, although they were as much entitled to such aid during
that period as at the trial itself."

															There has occasionally been a difference of opinion within the
Court as to the peripheral scope of this constitutional right. See Kirby v. Illinois, 406 U. S. 682 ; Coleman v. Alabama, 399 U. S. 1 . But its
basic contours, which are identical in state and federal contexts, Gideon v. Wainwright, 372 U. S. 335 ; Argersinger v. Hamlin, 407 U. S. 25 , are
too well established to require extensive elaboration here.
Whatever else it may mean, the right to counsel granted by the
Sixth and Fourteenth Amendments means at least that person is
entitled to the help of a lawyer at or after the time that judicial
proceedings have been initiated against him -- "whether by way of
formal charge, preliminary hearing, indictment, information, or
arraignment." Kirby v. Illinois, supra at 406 U. S. 689 . See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U. S. 458 ; Hamilton v. Alabama, 368 U. S. 52 ; Gideon v. Wainwright, supra; White v. Maryland, 373 U. S. 59 ; Massiah v. United States, 377 U.
S. 201 ; United Page 430 U. S. 399 States v. Wade, 388.U.S. 218; Gilbert v.
California, 388 U. S. 263 ; Coleman v. Alabama, supra. There can be no doubt in the present case that judicial
proceedings had been initiated against Williams before the start of
the automobile ride from Davenport to Des Moines. A warrant had
been issued for his arrest, he had been arraigned on that warrant
before a judge in a Davenport courtroom, and he had been committed
by the court to confinement in jail. The State does not contend
otherwise.

															There can be no serious doubt, either, that Detective Leaming
deliberately and designedly set out to elicit information from
Williams just as surely as -- and perhaps more effectively than --
if he had formally interrogated him. Detective Leaming was fully
aware before departing for Des Moines that Williams was being
represented in Davenport by Kelly and in Des Moines by McKnight.
Yet he purposely sought during Williams' isolation from his lawyers
to obtain as much incriminating information as possible. Indeed,
Detective Leaming conceded as much when he testified at Williams'
trial:

															"Q. In fact, Captain, whether he was a mental patient or not,
you were trying to get all the information you could before he got
to his lawyer, weren't you?"

															"A. I was sure hoping to find out where that little girl was,
yes, sir."

															" * * * *" "Q. Well, I'll put it this way: You was [ sic ] hoping to
get all the information you could before Williams got back to
McKnight, weren't you?"

															"A. Yes, sir. [ Footnote 6 ]
" Page 430 U. S. 400 The state courts clearly proceeded upon the hypothesis that
detective Leaming's "Christian burial speech" had been tantamount
to interrogation. Both courts recognized that Williams had been
entitled to the assistance of counsel at the time he made the
incriminating statements. [ Footnote
7 ] Yet no such constitutional protection would have come into
play if there had been no interrogation.

															The circumstances of this case are thus constitutionally
indistinguishable from those presented in Massiah v. United
States, supra. The petitioner in that case was indicted for
violating the federal narcotics law. He retained a lawyer, pleaded
not guilty, and was released on bail. While he was free on bail a
federal agent succeeded by surreptitious means in listening to
incriminating statements made by him. Evidence of these statements
was introduced against the petitioner at his trial, and he was
convicted. This Court reversed the conviction, holding

															"that the petitioner was denied the basic protections of that
guarantee [the right to counsel] when there was used against him at
his trial evidence of his own incriminating words, which federal
agents had deliberately elicited from him after he had been
indicted and in the absence of his counsel."

															377 U.S. at 377 U. S.
206 .

															That the incriminating statements were elicited surreptitiously
in the Massiah case, and otherwise here, is
constitutionally irrelevant. See ibid.; McLeod v. Ohio, 381 U. S. 356 ; United States v. Crisp, 435 F.2d 354, 358 (CA7); Page 430 U. S. 401 United States ex rel. O'Connor v. New Jersey, 405 F.2d
632, 636 (CA3); Hancock v. White, 378 F.2d 479 (CA1).
Rather, the clear rule of Massiah is that, once adversary
proceedings have commenced against an individual, he has a right to
legal representation when the government interrogates him.
[ Footnote 8 ] It thus requires
no wooden or technical application of the Massiah doctrine
to conclude that Williams was entitled to the assistance of counsel
guaranteed to him by the Sixth and Fourteenth Amendments. III The Iowa courts recognized that Williams had been denied the
constitutional right to the assistance of counsel. [ Footnote 9 ] They held, however, that he had
waived that right during the course of the automobile trip from
Davenport to Des Moines. The state trial court explained its
determination of waiver as follows:

															"The time element involved on the trip, the general
circumstances of it, and, more importantly, the absence on the
Defendant's part of any assertion of his right or desire not to
give information absent the presence of his attorney, are the main
foundations for the Court's conclusion that he voluntarily waived
such right. " Page 430 U. S. 402 In its lengthy opinion affirming this determination, the Iowa
Supreme Court applied "the "totality of circumstances" test for a
showing of waiver of constitutionally protected rights in the
absence of an express waiver," and concluded that

															"evidence of the time element involved on the trip, the general
circumstances of it, and the absence of any request or expressed
desire for the aid of counsel before or at the time of giving
information were sufficient to sustain a conclusion that defendant
did waive his constitutional rights as alleged."

															182 N.W.2d at 401, 402.

															In the federal habeas corpus proceeding, the District Court,
believing that the issue of waiver was not one of fact, but of
federal law, held that the Iowa courts had "applied the wrong
constitutional standards" in ruling that Williams had waived the
protections that were his under the Constitution. 375 F. Supp. at
182. The court held

															"that it is the government which bears a heavy burden .
. . but that is the burden which explicitly was placed on
[Williams] by the state courts." Ibid. (emphasis in original). After carefully reviewing
the evidence, the District Court concluded:

															"[U]nder the proper standards for determining waiver, there
simply is no evidence to support a waiver. . . . [T]here is no
affirmative indication . . . that [Williams] did waive his rights.
. . . [T]he state courts' emphasis on the absence of a demand for
counsel was not only legally inappropriate, but factually
unsupportable, as well, since Detective Leaming himself testified
that [Williams], on several occasions during the trip, indicated
that he would talk after he saw Mr. McKnight. Both these
statements and Mr. Kelly's statement to Detective Leaming that
[Williams] would talk only after seeing Mr. McKnight in Des Moines
certainly were assertions of [Williams'] 'right or desire not to
give information absent the presence of his attorney. . . .'
Moreover, the statements were obtained only after Detective Page 430 U. S. 403 Leaming's use of psychology on a person whom he knew to be
deeply religious and an escapee from a mental hospital -- with the
specific intent to elicit incriminating statements. In the face of
this evidence, the State has produced no affirmative evidence
whatsoever to support its claim of waiver, and, a
fortiori, it cannot be said that the State has met its 'heavy
burden' of showing a knowing and intelligent waiver of . . . Sixth
Amendment rights." Id. at 182-183 (emphasis in original; footnote
omitted).

															The Court of Appeals approved the reasoning of the District
Court:

															"A review of the record here . . . discloses no facts to support
the conclusion of the state court that [Williams] had waived his
constitutional rights other than that [he] had made incriminating
statements. . . . The District Court here properly concluded that
an incorrect constitutional standard had been applied by the state
court in determining the issue of waiver. . . ."

															" * * * *" "[T]his court recently held that an accused can voluntarily,
knowingly and intelligently waive his right to have counsel present
at an interrogation after counsel has been appointed. . . . The
prosecution, however, has the weighty obligation to show that the
waiver was knowingly and intelligently made. We quite agree with
Judge Hanson that the state here failed to so show."

															509 F.2d at 233.

															The District Court and the Court of Appeals were correct in the
view that the question of waiver was not a question of historical
fact, but one which, in the words of Mr. Justice Frankfurter,
requires "application of constitutional principles to the facts as
found. . . ." Brown v. Allen, 344 U.
S. 443 , Page 430 U. S. 404 344 U. S. 507 (separate opinion). See Townsend v. Sain, 372 U.S. at 372 U. S. 309 n. 6, 318; Brookhart v. Janis, 384 U. S.
1 , 384 U. S. 4 .

															The District Court and the Court of Appeals were also correct in
their understanding of the proper standard to be applied in
determining the question of waiver as a matter of federal
constitutional law -- that it was incumbent upon the State to prove
"an intentional relinquishment or abandonment of a known right or
privilege." Johnson v. Zerbst, 304 U.S. at 304 U. S. 464 .
That standard has been reiterated in many cases. We have said that
the right to counsel does not depend upon a request by the
defendant, Carnley v. Cochran, 369 U.
S. 506 , 369 U. S. 513 ; cf. Miranda v. Arizona, 384 U.S. at 384 U. S. 471 ,
and that courts indulge in every reasonable presumption against
waiver, e.g., Brookhart v. Janis, supra at 384 U. S. 4 ; Glasser v. United States, 315 U. S.
60 , 315 U. S. 70 .
This strict standard applies equally to an alleged waiver of the
right to counsel whether at trial or at a critical stage of
pretrial proceedings. Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S.
238 -240; United States v. Wade, 388 U.S. at 388 U. S.
237 .

															We conclude, finally, that the Court of Appeals was correct in
holding that, judged by these standards, the record in this case
falls far short of sustaining petitioner's burden. It is true that
Williams had been informed of and appeared to understand his right
to counsel. But waiver requires not merely comprehension, but
relinquishment, and Williams' consistent reliance upon the advice
of counsel in dealing with the authorities refutes any suggestion
that he waived that right. He consulted McKnight by long-distance
telephone before turning himself in. He spoke with McKnight by
telephone again shortly after being booked. After he was arraigned,
Williams sought out and obtained legal advice from Kelly. Williams
again consulted with Kelly after Detective Leaming and his fellow
officer arrived in Davenport. Throughout, Williams was advised not
to make any statements before seeing McKnight in Des Moines, and
was Page 430 U. S. 405 assured that the police had agreed not to question him. His
statements while in the car that he would tell the whole story
after seeing McKnight in Des Moines were the clearest expressions
by Williams himself that he desired the presence of an attorney
before any interrogation took place. But even before making these
statements, Williams 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. Williams
knew of that agreement and, particularly in view of his consistent
reliance on counsel, there is no basis for concluding that he
disavowed it. [ Footnote
10 ]

															Despite Williams' express and implicit assertions of his right
to counsel, Detective Leaming proceeded to elicit incriminating
statements from Williams. Leaming did not preface this effort by
telling Williams that he had a right to the presence of a lawyer,
and made no effort at all to ascertain whether Williams wished to
relinquish that right. The circumstances of record in this case
thus provide no reasonable basis for finding that Williams waived
his right to the assistance of counsel.

															The Court of Appeals did not hold, nor do we, that, under the
circumstances of this case, Williams could not, without
notice to counsel, have waived his rights under the Sixth and Page 430 U. S. 406 Fourteenth Amendments. [ Footnote 11 ] It only held, as do we, that he did not. IV The crime of which Williams was convicted was senseless and
brutal, calling for swift and energetic action by the police to
apprehend the perpetrator and gather evidence with which he could
be convicted. No mission of law enforcement officials is more
important. Yet "[d]isinterested zeal for the public good does not
assure either wisdom or right in the methods it pursues." Haley
v. Ohio, 332 U. S. 596 , 332 U. S. 605 (Frankfurter, J., concurring in judgment). Although we do not
lightly affirm the issuance of a writ of habeas corpus in this
case, so clear a violation of the Sixth and Fourteenth Amendments
as here occurred cannot be condoned. The pressures on state
executive and judicial officers charged with the administration of
the criminal law are great, especially when the crime is murder and
the victim a small child. But it is precisely the predictability of
those pressures that makes imperative a resolute loyalty to the
guarantees that the Constitution extends to us all.

															The judgment of the Court of Appeals is affirmed. [ Footnote 12 ] It is so ordered. [ Footnote 13 ]

															[ Footnote 1 ]

															The fact of the matter, of course, was that Detective Leaming
possessed no such knowledge.

															[ Footnote 2 ]

															The opinion of the trial court denying Williams' motion to
suppress is unreported.

															[ Footnote 3 ]

															Title 28 U.S.C. § 2254(d) provides:

															"(d) In any proceeding instituted in a Federal court by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court, a determination after a
hearing on the merits of a factual issue, made by a State court of
competent jurisdiction in a proceeding to which the applicant for
the writ and the State or an officer or agent thereof were parties,
evidenced by a written finding, written opinion, or other reliable
and adequate written indicia, shall be presumed to be correct,
unless the applicant shall establish or it shall otherwise appear,
or the respondent shall admit -- "

															"(1) that the merits of the factual dispute were not resolved in
the State court hearing;"

															"(2) that the factfinding procedure employed by the State court
was not adequate to afford a full and fair hearing;"

															"(3) that the material facts were not adequately developed at
the State court hearing;"

															"(4) that the State court lacked jurisdiction of the subject
matter or over the person of the applicant in the State court
proceeding;"

															"(5) that the applicant was an indigent and the State court, in
deprivation of his constitutional right, failed to appoint counsel
to represent him in the State court proceeding;"

															"(6) that the applicant did not receive a full, fair, and
adequate hearing in the State court proceeding; or"

															"(7) that the applicant was otherwise denied due process of law
in the State court proceeding;"

															"(8) or unless that part of the record of the State court
proceeding in which the determination of such factual issue was
made, pertinent to a determination of the sufficiency of the
evidence to support such factual determination, is produced as
provided for hereinafter, and the Federal court on a consideration
of such part of the record as a whole concludes that such factual
determination is not fairly supported by the record:"

															"And in an evidentiary hearing in the proceeding in the Federal
court, when due proof of such factual determination has been made,
unless the existence of one or more of the circumstances
respectively set forth in paragraphs numbered (1) to (7),
inclusive, is shown by the applicant, otherwise appears, or is
admitted by the respondent, or unless the court concludes pursuant
to the provisions of paragraph numbered (8) that the record in the
State court proceeding, considered as a whole, does not fairly
support such factual determination, the burden shall rest upon the
applicant to establish by convincing evidence that the factual
determination by the State court was erroneous."

															[ Footnote 4 ]

															Whether Williams waived his constitutional rights was not, of
course, a question of fact, but an issue of federal law. See discussion infra at 430 U. S.
401 -404.

															[ Footnote 5 ]

															The Court of Appeals did not address the District Court's ruling
that Williams' statements had been made involuntarily.

															[ Footnote 6 ]

															Counsel for petitioner, in the course of oral argument in this
Court, acknowledged that the "Christian burial speech" was
tantamount to interrogation:

															"Q: But isn't the point, really, Mr. Attorney General, what you
indicated earlier, and that is that the officer wanted to elicit
information from Williams -- "

															"A: Yes, sir."

															"Q: -- by whatever techniques he used, I would suppose a lawyer
would consider that he were pursuing interrogation."

															"A: It is, but it was very brief."

															Tr. of Oral Arg. 17.

															[ Footnote 7 ]

															The Iowa trial court expressly acknowledged Williams' "right to
have an attorney present during the giving of such information." See supra at 430 U. S. 394 .
The Iowa Supreme Court also expressly acknowledged Williams' "right
to the presence of his counsel." See ibid. [ Footnote 8 ]

															The only other significant factual difference between the
present case and Massiah is that here the police had
agreed that they would not interrogate Williams in the absence of
his counsel. This circumstance plainly provides petitioner with no
argument for distinguishing away the protection afforded by Massiah. It is argued that this agreement may not have been an
enforceable one. But we do not deal here with notions of offer,
acceptance, consideration, or other concepts of the law of
contracts. We deal with constitutional law. And every court that
has looked at this case has found an "agreement" in the sense of a
commitment made by the Des Moines police officers that Williams
would not be questioned about Pamela Powers in the absence of his
counsel.

															[ Footnote 9 ] See n 7, supra. [ Footnote 10 ] Cf. Michigan v. Mosley, 423 U. S.
96 , 423 U. S. 110 n. 2 (WHITE, J., concurring in result):

															"[T]he reasons to keep the lines of communication between the
authorities and the accused open when the accused has chosen to
make his own decisions are not present when he indicates instead
that he wishes legal advice with respect thereto. The authorities
may then communicate with him through an attorney. More to the
point, the accused having expressed his own view that he is not
competent to deal with the authorities without legal advice, a
later decision at the authorities' insistence to make a statement
without counsel's presence may properly be viewed with
skepticism."

															[ Footnote 11 ] Compare, e.g., United States v. Springer, 460 F.2d
1344, 1350 (CA7); Wilson v. United States, 398 F.2d 331
(CA5); Coughlan v. United States, 391 F.2d 371 (CA9), with, e.g., United States v. Thomas, 474 F.2d 110, 112
(CA10); United States v. Springer, supra at 1354-1355
(Stevens, J., dissenting); United States ex rel. Magoon v.
Reincke, 416 F.2d 69 (CA2), aff'g 304 F.
Supp. 1014 (Conn.). Cf. United States v. Pheaster, 544
F.2d 353 (CA9).

															[ Footnote 12 ]

															The District Court stated that its decision

															"does not touch upon the issue of what evidence, if any, beyond
the incriminating statements themselves must be excluded as 'fruit
of the poisonous tree.'" 375 F.
Supp. 170 , 185. We, too, have no occasion to address this
issue, and, in the present posture of the case, there is no basis
for the view of our dissenting Brethren, post at 430 U. S. 430 (WHITE, J.); post at 430 U. S. 441 (BLACKMUN, J.), that any attempt to retry the respondent would
probably be futile. While neither Williams' incriminating
statements themselves nor any testimony describing his having led
the police to the victim's body can constitutionally be admitted
into evidence, evidence of where the body was found and of its
condition might well be admissible on the theory that the body
would have been discovered in any event, even had incriminating
statements not been elicited from Williams. Cf. Killough v.
United States, 119 U.S. App. D.C. 10, 336 F.2d 929. In the
event that a retrial is instituted, it will be for the state courts
in the first instance to determine whether particular items of
evidence may be admitted.

															[ Footnote 13 ]

															The Court of Appeals suspended the issuance of the writ of
habeas corpus for 60 days to allow an opportunity for a new trial,
and further suspended its issuance pending disposition of the
petition for a writ of certiorari in this Court. In affirming the
judgment of the Court of Appeals, we further suspend the issuance
of the writ of release from custody for 60 days from this date to
allow the State of Iowa an opportunity to initiate a new trial, and
judgment will be entered accordingly.

															MR JUSTICE MARSHALL, concurring.

															I concur wholeheartedly in my Brother STEWART's opinion for the
Court, but add these words in light of the dissenting Page 430 U. S. 407 opinions filed today. The dissenters have, I believe, lost sight
of the fundamental constitutional backbone of our criminal law.
They seem to think that Detective Leaming's actions were perfectly
proper, indeed laudable, examples of "good police work." In my
view, good police work is something far different from catching the
criminal at any price. It is equally important that the police, as
guardians of the law, fulfill their responsibility to obey its
commands scrupulously. For, "in the end, life and liberty can be as
much endangered from illegal methods used to convict those thought
to be criminals as from the actual criminals themselves." Spano
v. New York, 360 U. S. 315 , 360 U. S.
320 -321 (1959).

															In this case, there can be no doubt that Detective Leaming
consciously and knowingly set out to violate Williams' Sixth
Amendment right to counsel and his Fifth Amendment privilege
against self-incrimination, as Leaming himself understood those
rights. Leaming knew that Williams had been advised Page 430 U. S. 408 by two lawyers not to make any statements to police until he
conferred in Des Moines with his attorney there, Mr. McKnight.
Leaming surely understood, because he had overheard McKnight tell
Williams as much, that the location of the body would be revealed
to police. Undoubtedly Leaming realized the way in which that
information would be conveyed to the police: McKnight would learn
it from his client, and then he would lead police to the body.
Williams would thereby be protected by the attorney-client
privilege from incriminating himself by directly demonstrating his
knowledge of the body's location, and the unfortunate Powers child
could be given a "Christian burial."

															Of course, this scenario would accomplish all that Leaming
sought from his investigation except that it would not produce
incriminating statements or actions from Williams. Accordingly,
Leaming undertook his charade to pry such evidence from Williams.
After invoking the no-passengers rule to prevent attorney Kelly
from accompanying the prisoner, Leaming had Williams at his mercy:
during the three- or four-hour trip, he could do anything he wished
to elicit a confession. The detective demonstrated once again "that
the efficiency of the rack and the thumbscrew can be matched, given
the proper subject, by more sophisticated modes of persuasion.'" Blackburn v. Alabama, 361 U.
S. 199 , 361 U. S. 206 (1960). Leaming knowingly isolated Williams from the protection of his
lawyers, and, during that period, he intentionally "persuaded" him
to give incriminating evidence. It is this intentional police
misconduct -- not good police practice -- that the Court rightly
condemns. The heinous nature of the crime is no excuse, as the
dissenters would have it, for condoning knowing and intentional
police transgression of the constitutional rights of a defendant.
If Williams is to go free -- and, given the ingenuity of Iowa
prosecutors on retrial or in a civil commitment proceeding, I doubt
very much that there is any chance a dangerous criminal will be
loosed on the streets, the Page 430 U. S. 409 bloodcurdling cries of the dissents notwithstanding -- it will
hardly be because he deserves it. It will be because Detective
Leaming, knowing full well that he risked reversal of Williams'
conviction, intentionally denied Williams the right of every
American under the Sixth Amendment to have the protective shield of
a lawyer between himself and the awesome power of the State.

															I think it appropriate here to recall not Mr. Justice Cardozo's
opinion in People v. Defore, 242 N.Y. 13, 150 N.E. 585
(126), see opinion of THE CHIEF JUSTICE, post at 430 U. S. 416 ,
and n. 1, but rather the closing words of Mr. Justice Brandeis'
great dissent in Olmstead v. United States, 277 U.
S. 438 , 277 U. S. 471 , 277 U. S. 485 (1928):

															"In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our
Government is the potent, the omnipresent teacher. For good or for
ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto
himself; it invites anarchy. To declare that, in the administration
of the criminal law, the end justifies the means -- to declare that
the Government may commit crimes in order to secure the conviction
of a private criminal -- would bring terrible retribution. Against
that pernicious doctrine this Court should resolutely set its
face."

															MR. JUSTICE POWELL, concurring.

															As the dissenting opinion of THE CHIEF JUSTICE sharply
illustrates, resolution of the issues in this case turns primarily
on one's perception of the facts. There is little difference of
opinion, among the several courts and numerous judges who have
reviewed the case, as to the relevant constitutional principles:
(i) Williams had the right to assistance of counsel; Page 430 U. S. 410 (ii) once that right attached (it is conceded that it had in
this case), the State could not properly interrogate Williams in
the absence of counsel unless he voluntarily and knowingly waived
the right; and (iii) the burden was on the State to show that
Williams in fact had waived the right before the police
interrogated him.

															The critical factual issue is whether there had been a voluntary
waiver, and this turns in large part upon whether there was
interrogation. As my dissenting Brothers view the facts so
differently from my own perception of them, I will repeat briefly
the background, setting, and factual predicate to the incriminating
statements by Williams even though the opinion of the Court sets
forth all of this quite accurately. I Prior to the automobile trip from Davenport to Des Moines,
Williams had been arrested, booked, and carefully given Miranda warnings. It is settled constitutional doctrine
that he then had the right to the assistance of counsel. His
exercise of this right was evidenced uniquely in this case.
Williams had consulted counsel prior to his arrest, and surrendered
to the police on advice of counsel. At all times thereafter,
Williams, to the knowledge of the police, had two attorneys:
McKnight, whom Williams consulted initially and who awaited his
arrival in Des Moines, and Kelly, who had represented Williams in
Davenport where he surrendered. Significantly, the recognition by
the police of the status of counsel was evidenced by the express
agreement between McKnight and the appropriate police officials
that the officers who would drive Williams to Des Moines would not
interrogate him in the absence of counsel.

															The incriminating statements were made by Williams during the
long ride while in the custody of two police officers, and in the
absence of his retained counsel. The dissent of THE Page 430 U. S. 411 CHIEF JUSTICE concludes that, prior to these statements,
Williams had "made a valid waiver" of his right to have counsel
present. Post at 430 U. S. 417 .
This view disregards the record evidence clearly indicating that
the police engaged in interrogation of Williams. For example, the
District Court noted:

															"According to Detective Leaming's own testimony, the specific
purpose of this conversation [which was initiated by Leaming and
which preceded Williams' confession] was to obtain statements and
information from [Williams] concerning the missing girl." 375 F.
Supp. 170 , 174. In support of that finding, the District Court
quoted extensively from Leaming's testimony, including the
following:

															"Q. In fact, Captain, whether [Williams] was a mental patient or
not, you were trying to get all the information you could before he
got to his lawyer, weren't you?"

															"A. I was sure hoping to find out where that little girl was,
yes, sir."

															" * * * *" "Q. Well, I'll put it this way: You were hoping to get all the
information you could before Williams got back to McKnight, weren't
you?"

															"A. Yes, sir." Ibid. After finding, upon a full review of the facts,
that there had been "interrogation," the District Court addressed
the ultimate issue of "waiver," and concluded not only that the
State had failed to carry its burden, but also that

															"there is nothing in the record to indicate that [Williams]
waived his Fifth and Sixth Amendment rights except the
fact that statements eventually were obtained." Id. at 182. (Emphasis in original.) The Court of
Appeals stated affirmatively that "the facts Page 430 U. S. 412 as found by the District Court had substantial basis in the
record." 509 F.2d 227, 231. [ Footnote
2/1 ]

															I join the opinion of the Court which also finds that the
efforts of Detective Leaming "to elicit information from Williams,"
as conceded by counsel for petitioner at oral argument, ante at 430 U. S. 400 n. 6, were a skillful and effective form of interrogation.
Moreover, the entire setting was conducive to the psychological
coercion that was successfully exploited. Williams was known by the
police to be a young man with quixotic religious convictions and a
history of mental disorders. The date was the day after Christmas,
the weather was ominous, and the setting appropriate for Detective
Leaming's talk of snow concealing the body and preventing a
"Christian burial." Williams was alone in the automobile with two
police officers for several hours. It is clear from the record, as
both of the federal courts below found, that there was no evidence
of a knowing and voluntary waiver of the right to have counsel
present beyond the fact that Williams ultimately confessed. It is
settled law that an inferred waiver of a constitutional right is
disfavored. Estelle v. Williams, 425 U.
S. 501 , 425 U. S. 515 (1976) (POWELL, J., concurring). I find no basis in the record of
this case -- or in the dissenting opinions Page 430 U. S. 413 -- for disagreeing with the conclusion of the District Court
that "the State has produced no affirmative evidence whatsoever to
support its claim of waiver." 375 F. Supp. at 183.

															The dissenting opinion of THE CHIEF JUSTICE states that the
Court's holding today "conclusively presumes a suspect is legally
incompetent to change his mind and tell the truth until an attorney
is present." Post at 430 U. S. 419 .
I find no justification for this view. On the contrary, the opinion
of the Court is explicitly clear that the right to assistance of
counsel may be waived, after it has attached, without notice to or
consultation with counsel. Ante at 430 U. S.
405 -406. We would have such a case here if petitioner
had proved that the police officers refrained from coercion and
interrogation, as they had agreed, and that Williams freely, on his
own initiative, had confessed the crime. II In discussing the exclusionary rule, the dissenting opinion of
THE CHIEF JUSTICE refers to Stone v. Powell, 428 U.
S. 465 (1976), decided last Term. In that case, we held
that a federal court need not apply the exclusionary rule on habeas
corpus review of a Fourth Amendment claim absent a showing that the
state prisoner was denied an opportunity for a full and fair
litigation of that claim at trial and on direct review.

															This case also involves review on habeas corpus of a state
conviction, and the decisions that the Court today affirms held
that Williams' incriminating statements should have been excluded.
[ Footnote 2/2 ] As Stone was decided subsequently to these Page 430 U. S. 414 decisions, the courts below had no occasion to consider whether
the principle enunciated in Stone may have been applicable
in this case. That question has not been presented in the briefs or
arguments submitted to us, [ Footnote
2/3 ] and we therefore have no occasion to consider the possible
applicability of Stone. The applicability of the rationale
of Stone in the Fifth and Sixth Amendment context raises a
number of unresolved issues. Many Fifth and Sixth Amendment claims
arise in the context of challenges to the fairness of a trial or to
the integrity of the factfinding process. In contrast, Fourth
Amendment claims uniformly involve evidence that is "typically
reliable and often the most probative information bearing on the
guilt or innocence of the defendant." Stone v. Powell,
supra, at 428 U. S. 490 .
Whether the rationale of Stone should be applied to those
Fifth and Sixth Amendment claims or classes of claims that more
closely parallel claims under the Fourth Amendment is a question as
to which I intimate no view, and which should be resolved only
after the implications of such a ruling have been fully
explored.

															[ Footnote 2/1 ]

															Before concluding that the police had engaged in interrogation,
the District Court summarized the factual background:

															"Detective Leaming obtained statements from Petitioner in the
absence of counsel (1) after making, and then breaking, an
agreement with Mr. McKnight that Petitioner would not be questioned
until he arrived in Des Moines and saw Mr. McKnight; (2) after
being told by both Mr. McKnight and Mr. Kelly that Petitioner was
not to be questioned until he reached Des Moines; (3) after
refusing to allow Mr. Kelly, whom Detective Leaming himself
regarded as Petitioner's co-counsel, to ride to Des Moines with
Petitioner; and (4) after being told by Petitioner that he would
talk after he reached Des Moines and Mr. McKnight. By violating or
ignoring these several, clear indications that Petitioner was to
have counsel during interrogation, Detective Leaming deprived
Petitioner of his right to counsel in a way similar to, if not more
objectionable than, that utilized against the defendant in Massiah [v. United States, 377 U. S.
201 (1964)]."

															375 F. Supp. at 177 (footnote omitted).

															[ Footnote 2/2 ]

															I tend generally to share the view that the per se application of an exclusionary rule has little to commend it except
ease of application. All too often, applying the rule in this
fashion results in freeing the guilty without any offsetting
enhancement of the rights of all citizens. Moreover, rigid
adherence to the exclusionary rule in many circumstances imposes
greater cost on the legitimate demands of law enforcement than can
be justified by the rule's deterrent purposes. Schneckloth v.
Bustamonte, 412 U. S. 218 , 412 U. S. 267 (1973) (POWELL, J., concurring). I therefore have indicated, at
least with respect to Fourth Amendment violations, that a
distinction should be made between flagrant violations by the
police, on the one hand, and technical, trivial, or inadvertent
violations, on the other. Brown v. Illinois, 422 U.
S. 590 , 422 U. S.
610 -612 (1975) (concurring opinion). Here, we have a
Sixth Amendment case and also one in which the police deliberately
took advantage of an inherently coercive setting in the absence of
counsel, contrary to their express agreement. Police are to be
commended for diligent efforts to ascertain the truth, but the
police conduct in this case plainly violated respondent's
constitutional rights.

															[ Footnote 2/3 ]

															The Stone issue was not mentioned in any of the briefs,
including petitioner's reply brief filed September 29, 1976 -- some
three months after our decision in Stone was announced.
The possible relevance of Stone was raised by a question
from the bench during oral argument. This prompted brief comments
by counsel for both parties. Tr. of Oral Arg., 26-27, 49-50. But in
no meaningful sense can the issue be viewed as having been "argued"
in this case.

															MR. JUSTICE STEVENS, concurring.

															MR. JUSTICE STEWART, in his opinion for the Court which I join,
MR. JUSTICE POWELL, and MR. JUSTICE MARSHALL have Page 430 U. S. 415 accurately explained the reasons why the law requires the result
we reach today. Nevertheless, the strong language in the dissenting
opinions prompts me to add this brief comment about the Court's
function in a case such as this.

															Nothing that we write, no matter how well reasoned or forcefully
expressed, can bring back the victim of this tragedy or undo the
consequences of the official neglect which led to the respondent's
escape from a state mental institution. The emotional aspects of
the case make it difficult to decide dispassionately, but do.not
qualify our obligation to apply the law with an eye to the future
as well as with concern for the result in the particular case
before us.

															Underlying the surface issues in this case is the question
whether a fugitive from justice can rely on his lawyer's advice
given in connection with a decision to surrender voluntarily. The
defendant placed his trust in an experienced Iowa trial lawyer,
who, in turn, trusted the Iowa law enforcement authorities to honor
a commitment made during negotiations which led to the apprehension
of a potentially dangerous person. Under any analysis, this was a
critical stage of the proceeding in which the participation of an
independent professional was of vital importance to the accused and
to society. At this stage -- as in countless others in which the
law profoundly affects the life of the individual -- the lawyer is
the essential medium through which the demands and commitments of
the sovereign are communicated to the citizen. If, in the long run,
we are seriously concerned about the individual's effective
representation by counsel, the State cannot be permitted to
dishonor its promise to this lawyer. * * The importance of this point is emphasized by the State's
refusal to permit counsel to accompany his client on the trip from
Davenport to Des Moines.

															MR. CHIEF JUSTICE BURGER, dissenting.

															The result in this case ought to be intolerable in any society
which purports to call itself an organized society. It
continues Page 430 U. S. 416 the Court -- by the narrowest margin -- on the much-criticized
course of punishing the public for the mistakes and misdeeds of law
enforcement officers, instead of punishing the officer directly, if
in fact he is guilty of wrongdoing. It mechanically and blindly
keeps reliable evidence from juries whether the claimed
constitutional violation involves gross police misconduct or honest
human error.

															Williams is guilty of the savage murder of a small child; no
member of the Court contends he is not. While in custody, and after
no fewer than five warnings of his rights to silence and to
counsel, he led police to the concealed body of his victim. The
Court concedes Williams was not threatened or coerced, and that he
spoke and acted voluntarily and with full awareness of his
constitutional rights. In the face of all this, the Court now holds
that, because Williams was prompted by the detective's statement --
not interrogation, but a statement -- the jury must not be told how
the police found the body.

															Today's holding fulfills Judge (later Mr. Justice) Cardozo's
grim prophecy that someday some court might carry the exclusionary
rule to the absurd extent that its operative effect would exclude
evidence relating to the body of a murder victim because of the
means by which it was found. [ Footnote
3/1 ] In so ruling, Page 430 U. S. 417 the Court regresses to playing a grisly game of "hide and seek,"
once more exalting the sporting theory of criminal justice which
has been experiencing a decline in our jurisprudence. With JUSTICES
WHITE, BLACKMUN, and REHNQUIST, I categorically reject the
remarkable notion that the police in this case were guilty of
unconstitutional misconduct, or any conduct justifying the bizarre
result reached by the Court. Apart from a brief comment on the
merits, however, I wish to focus on the irrationality of applying
the increasingly discredited exclusionary rule to this case. (1) The Court Concedes Williams' Disclosures Were
Voluntary Under well settled precedents which the Court freely
acknowledges, it is very clear that Williams had made a valid
waiver of his Fifth Amendment right to silence and his Sixth
Amendment right to counsel when he led police to the child's body.
Indeed, even under the Court's analysis, I do not understand how a
contrary conclusion is possible.

															The Court purports to apply as the appropriate constitutional
waiver standard the familiar "intentional relinquishment or
abandonment of a known right or privilege" test of Johnson v.
Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938). Ante at 430 U. S. 404 .
The Court assumes, without deciding, that Williams' conduct and
statements were voluntary. It concedes, as it must, ibid., that Williams had been informed of and fully understood his
constitutional rights and the consequences of their waiver. Then,
having either assumed or found every element necessary to make out
a valid waiver under its own test, the Page 430 U. S. 418 Court reaches the astonishing conclusion that no valid waiver
has been demonstrated.

															This remarkable result is compounded by the Court's failure to
define what evidentiary showing the State failed to make. Only
recently, in Schneckloth v. Bustamonte, 412 U.
S. 218 , 412 U. S. 238 n. 25 (1973), the Court analyzed the distinction between a
voluntary act and the waiver of a right; there, MR. JUSTICE STEWART
stated for the Court:

															"[T]he question whether a person has acted 'voluntarily' is
quite distinct from the question whether he has 'waived' a trial
right. The former question, as we made clear in Brady v. United
States , 397 U.S. [742,] 397 U. S.
749 , can be answered only by examining all the relevant
circumstances to determine if he has been coerced. The latter
question turns on the extent of his knowledge."

															Similarly, in McMann v. Richardson, 397 U.
S. 759 , 397 U. S. 766 (1970), we said that, since a guilty plea constituted a waiver of a
host of constitutional rights, "it must be an intelligent act done with sufficient awareness of the relevant circumstances
and likely consequences.'" If the Court today applied these
standards with fidelity to the Schneckloth and McMann holdings, it could not reach the result now
announced. The evidence is uncontradicted that Williams had abundant
knowledge of his right to have counsel present and of his right to
silence. Since the Court does not question his mental competence,
it boggles the mind to suggest that Williams could not understand
that leading police to the child's body would have other than the
most serious consequences. All of the elements necessary to make
out a valid waiver are shown by the record and acknowledged by the
Court; we thus are left to guess how the Court reached its
holding.

															One plausible but unarticulated basis for the result reached is
that, once a suspect has asserted his right not to talk without the
presence of an attorney, it becomes legally impossible Page 430 U. S. 419 for him to waive that right until he has seen an attorney. But
constitutional rights are personal, and an otherwise valid
waiver should not be brushed aside by judges simply because an
attorney was not present. The Court's holding operates to "imprison
a man in his privileges," Adams v. United States ex rel.
McCann, 317 U. S. 269 , 317 U. S. 280 (1942); it conclusively presumes a suspect is legally incompetent
to change his mind and tell the truth until an attorney is present.
It denigrates an individual to a nonperson whose free will has
become hostage to a lawyer so that, until the lawyer consents, the
suspect is deprived of any legal right or power to decide for
himself that he wishes to make a disclosure. It denies that the
rights to counsel and silence are personal, nondelegable, and
subject to a waiver only by that individual. [ Footnote 3/2 ] The opinions in support of the Court's
judgment do not enlighten us as to why police conduct -- whether
good or bad -- should operate to suspend Williams' right to change
his mind and "tell all" at once, rather than waiting until he
reached Des Moines. [ Footnote
3/3 ]

															In his concurring opinion, MR. JUSTICE POWELL suggests that the
result in this case turns on whether Detective Leaming's remarks
constituted "interrogation," as he views them, or whether they were
"statements" intended to prick the conscience of the accused. I
find it most remarkable that a murder case should turn on judicial
interpretation that a statement becomes a question simply because
it is followed by an Page 430 U. S. 420 incriminating disclosure from the suspect. The Court seems to be
saying that, since Williams said he would "tell the whole story" at
Des Moines, the police should have been content and waited; of
course, that would have been the wiser course, especially in light
of the nuances of constitutional jurisprudence applied by the
Court, but a murder case ought not turn on such tenuous
strands.

															In any case, the Court assures us, ante at 430 U. S.
405 -406, this is not at all what it intends, and that a
valid waiver was possible in these circumstances, but was not quite
made. Here, of course, Williams did not confess to the murder in so
many words; it was his conduct in guiding police to the body, not
his words, which incriminated him. And the record is replete with
evidence that Williams knew precisely what he was doing when he
guided police to the body. The human urge to confess wrongdoing is,
of course, normal in all save hardened, professional criminals, as
psychiatrists and analysts have demonstrated. T. Reik, The
Compulsion to Confess (1972). (2) The Exclusionary Rule Should Not be
Applied to Non-egregious Police Conduct Even if there was no waiver, and assuming a technical violation
occurred, the Court errs gravely in mechanically applying the
exclusionary rule without considering whether that Draconian
judicial doctrine should be invoked in these circumstances, or
indeed whether any of its conceivable goals will be furthered by
its application here.

															The obvious flaws of the exclusionary rule as a judicial remedy
are familiar. See Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U. S. 388 , 403 U. S. 411 (1971) (BURGER, C.J., dissenting); Stone v. Powell, 428 U. S. 465 , 428 U. S.
498 -502 (1976) (BURGER, C.J., concurring); Oaks,
Studying the Exclusionary Rule in Search and Seizure, 37
U.Chi.L.Rev. 665 (1970); Williams, The Exclusionary Rule Under
Foreign Law -- England, Page 430 U. S. 421 52 J.Crim. L. 272 (1961). Today's holding interrupts what has
been a more rational perception of the constitutional and social
utility of excluding reliable evidence from the truth-seeking
process. In its Fourth Amendment context, we have now recognized
that the exclusionary rule is in no sense a personal constitutional
right, but a judicially conceived remedial device designed to
safeguard and effectuate guaranteed legal rights generally. Stone v. Powell, supra at 428 U. S. 482 ; United States v. Janis, 428 U. S. 433 , 428 U. S.
443 -447 (1976); United States v. Calandra, 414 U. S. 338 , 414 U. S.
347 -348 (1974); see Alderman v. United States, 394 U. S. 165 , 394 U. S.
174 -175 (1969). We have repeatedly emphasized that
deterrence of unconstitutional or otherwise unlawful police conduct
is the only valid justification for excluding reliable and
probative evidence from the criminal factfinding process. Stone
v. Powell, supra at 428 U. S.
485 -486; United States v. Janis, supra at 428 U. S. 446 , 428 U. S.
458 -459, n. 35; United States v. Peltier, 422 U. S. 531 , 422 U. S.
536 -539 (1975).

															Accordingly, unlawfully obtained evidence is not automatically
excluded from the factfinding process in all circumstances.
[ Footnote 3/4 ] In a variety of
contexts we inquire whether application Page 430 U. S. 422 of the rule will promote its objectives sufficiently to justify
the enormous cost it imposes on society.

															"As with any remedial device, the application of the rule has
been restricted to those areas where its remedial objectives are
thought most efficaciously served." United States v. Calandra, supra at 414 U. S. 348 ; accord, Stone v. Powell, supra, at 428 U. S.
486 -491; United States v. Janis, supra; Brown v.
Illinois, 422 U. S. 590 , 422 U. S. 606 , 422 U. S.
608 -609 (1975) (POWELL, J., concurring in part); United States v. Peltier, supra at 422 U. S.
538 -539. This is, of course, the familiar balancing
process applicable to cases in which important competing interests
are at stake. It is a recognition, albeit belated, that "the
policies behind the exclusionary rule are not absolute," Stone
v. Powell, supra at 428 U. S. 488 .
It acknowledges that so serious an infringement of the crucial
truth-seeking function of a criminal prosecution should be allowed
only when imperative to safeguard constitutional rights. An
important factor in this amalgam is whether the violation at issue
may properly be classed as "egregious." Brown v. Illinois,
supra at 422 U. S. 609 (POWELL, J., concurring in part). The Court understandably does not
try to characterize the police actions here as "egregious." Against
this background, it is striking that the Court fails even to
consider whether the benefits secured by application of the
exclusionary rule in this case outweigh its obvious social costs.
Perhaps the failure is due to the fact that this case arises not
under the Fourth Amendment, but under Miranda v. Arizona, 384 U. S. 436 (1966), and the Sixth Amendment right to counsel. The Court
apparently perceives the function of the exclusionary rule to be so
different in these varying contexts that it must be mechanically
and uncritically Page 430 U. S. 423 applied in all case arising outside the Fourth Amendment.
[ Footnote 3/5 ]

															But this is demonstrably not the case where police conduct
collides with Miranda's procedural safeguards, rather than
with the Fifth Amendment privilege against compulsory
self-incrimination. Involuntary and coerced admissions are
suppressed because of the inherent unreliability of a confession
wrung from an unwilling suspect by threats, brutality, or other
coercion. Schneckloth v. Bustamonte, 412 U.S. at 412 U. S. 242 ; Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 638 (1965); Stone v. Powell, 428 U.S. at 428 U. S.
496 -497 (BURGER, C.J., concurring); Kaufman v.
United States, 394 U. S. 217 , 394 U. S. 237 (1969) (Black, J., dissenting). We can all agree on " [t]he
abhorrence of society to the use of involuntary confessions,'" Linkletter v. Walker, supra at 381 U. S. 638 ,
and the need to preserve the integrity of the human personality and
individual free will. Ibid.; Blackburn v. Alabama, 361 U. S. 199 , 361 U. S.
206 -207 (1960). But use of Williams' disclosures and their fruits carries no
risk whatever of unreliability, for the body was found where he
said it would be found. Moreover, since the Court makes no issue of
voluntariness, no dangers are posed to individual dignity or free
will. Miranda's safeguards are premised on presumed
unreliability long associated with confessions extorted by
brutality or threats; they are not personal constitutional rights,
but are simply judicially created prophylactic measures. Michigan v. Tucker, 417 U. S. 433 (1974); Doyle Page 430 U. S. 424 v. Ohio, 426 U. S. 610 , 426 U. S. 617 (1976); Brown v. Illinois, supra at 422 U. S. 606 (POWELL, J., concurring in part).

															Thus, in cases where incriminating disclosures are voluntarily
made without coercion, and hence not violative of the Fifth
Amendment, but are obtained in violation of one of the Miranda prophylaxes, suppression is no longer automatic.
Rather, we weigh the deterrent effect on unlawful police conduct,
together with the normative Fifth Amendment justifications for
suppression, against

															"the strong interest under any system of justice of making
available to the trier of fact all concededly relevant and
trustworthy evidence which either party seeks to adduce. . . . We
also 'must consider society's interest in the effective prosecution
of criminals. . . .'" Michigan v. Tucker, supra at 417 U. S. 450 .
[ Footnote 3/6 ] This individualized
consideration or balancing process with respect to the exclusionary
sanction is possible in this case, as in others, because Williams'
incriminating disclosures are not infected with any element of
compulsion the Fifth Amendment forbids; nor, as noted earlier, does
this evidence pose any danger of unreliability to the factfinding
process. In short, there is no reason to exclude this evidence.

															Similarly, the exclusionary rule is not uniformly implicated in
the Sixth Amendment, particularly its pretrial aspects. We have
held that

															"the core purpose of the counsel guarantee was to assure
'assistance' at trial, when the accused was confronted with both
the intricacies of the law and the advocacy of the public
prosecutor." United States v. Ash, 413 U. S. 300 , 413 U. S. 309 (1973). Thus, the right to counsel is fundamentally a "trial" right
necessitated by the legal complexities of a criminal
prosecution Page 430 U. S. 425 and the need to offset, to the trier of fact, the power of the
State as prosecutor. See Schneckloth v. Bustamonte, supra at 412 U. S. 241 .
It is now thought that modern law enforcement involves pretrial
confrontations at which the defendant's fate might effectively be
sealed before the right of counsel could attach. In order to make
meaningful the defendant's opportunity to a fair trial and to
assistance of counsel at that trial -- the core purposes of the
counsel guarantee -- the Court formulated a per se rule
guaranteeing counsel at what it has characterized as "critical"
pretrial proceedings where substantial rights might be endangered. United States v. Wade, 388 U. S. 218 , 388 U. S.
224 -227 (1967); Schneckloth v. Bustamonte,
supra at 412 U. S.
238 -239.

															As we have seen in the Fifth Amendment setting, violations of
prophylactic rules designed to safeguard other constitutional
guarantees and deter impermissible police conduct need not call for
the automatic suppression of evidence without regard to the
purposes served by exclusion; nor do Fourth Amendment violations
merit uncritical suppression of evidence. In other situations, we
decline to suppress eyewitness identifications which are the
products of unnecessarily suggestive lineups or photo displays
unless there is a "very substantial likelihood of irreparable
misidentification." Simmons v. United States, 390 U.
S. 377 , 390 U. S. 384 (1968). Recognizing that "[i]t is the likelihood of
misidentification which violates a defendant's right to due
process," Neil v. Biggers, 409 U.
S. 188 , 409 U. S. 198 (1972), we exclude evidence only when essential to safeguard the
integrity of the truth-seeking process. The test, in short, is the
reliability of the evidence.

															So, too, in the Sixth Amendment sphere, failure to have counsel
in a pretrial setting should not lead to the "knee-Jerk"
suppression of relevant and reliable evidence. Just as even
uncounseled "critical" pretrial confrontations may often be
conducted fairly, and not in derogation of Sixth Amendment values, Stovall v. Denno, 388 U. S. 293 , 388 U. S.
298 -299 (1967), evidence Page 430 U. S. 426 obtained in such proceedings should be suppressed only when its
use would imperil the core values the Amendment was written to
protect. Having extended Sixth Amendment concepts originally
thought to relate to the trial itself to earlier periods when a
criminal investigation is focused on a suspect, application of the
drastic bar of exclusion should be approached with caution.

															In any event, the fundamental purpose of the Sixth Amendment is
to safeguard the fairness of the trial and the integrity of the
factfinding process. [ Footnote 3/7 ]
In this case, where the evidence of how the child's body was found
is of unquestioned reliability, and since the Court accepts
Williams' disclosures as voluntary and uncoerced, there is no issue
either of fairness or evidentiary reliability to justify
suppression of truth. It appears suppression is mandated here for
no other reason than the Court's general impression that it may
have a beneficial effect on future police conduct; indeed, the
Court fails to say even that much in defense of its holding.

															Thus, whether considered under Miranda or the Sixth
Amendment, there is no more reason to exclude the evidence in this
case than there was in Stone v. Powell; [ Footnote 3/8 ] that holding was Page 430 U. S. 427 premised on the utter reliability of evidence sought to be
suppressed, the irrelevancy of the constitutional claim to the
criminal defendant's factual guilt or innocence, and the minimal
deterrent effect of habeas corpus on police misconduct. This case,
like Stone v. Powell, comes to us by way of habeas corpus
after a fair trial and appeal in the state courts. Relevant factors
in this case are thus indistinguishable from those in Stone and from those in other Fourth Amendment cases
suggesting a balancing approach toward utilization of the
exclusionary sanction. Rather than adopting a formalistic analysis
varying with the constitutional provision invoked, [ Footnote 3/9 ] we should apply the exclusionary rule
on the basis of its benefits and costs, at least in those cases
where the police conduct at issue is far from being outrageous or
egregious.

															In his opinion, MR. JUSTICE POWELL intimates that he agrees
there is little sense in applying the exclusionary sanction where
the evidence suppressed is " typically reliable, and often the
most probative information bearing on the guilt or innocence of the
defendant.'" Ante at 430 U. S. 414 .
Since he seems to concede that the evidence in question is highly
reliable and probative, his joining the Court's opinion can be
explained only by an insistence that the "question has not been
presented in the briefs or arguments submitted to us." Ibid. But petitioner has directly challenged the
applicability of the exclusionary rule to this case, Brief for
Petitioner 31-32, and has invoked principles of comity and
federalism against reversal of the conviction. Id. at
69-73. Moreover, at oral argument -- the first opportunity to do so
-- petitioner argued Page 430 U. S. 428 that our intervening decision in Stone v. Powell should
be extended to this case, just as respondent argued that it should
not. Tr. of Oral Arg. 26-27, 49-50.

															At the least, if our intervening decision in Stone makes application of the exclusionary rule in this case an open
question which "should be resolved only after the implications of
such a ruling have been fully explored," the plainly proper course
is to vacate the judgment of the Court of Appeals and remand the
case for reconsideration in light of that case. Indeed, only
recently, we actually applied the intervening decision of Washington v. Davis, 426 U. S. 229 (1976), to resolve the constitutional issue in Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.
S. 252 (1977). There, we found no difficulty in applying
the intervening holding ourselves without a remand to give the
Court of Appeals an opportunity to reconsider its holding; we
reached the correct result directly, over MR. JUSTICE WHITE's
dissent urging a remand. Today, the Court declines either to apply
the intervening case of Stone v. Powell, which MR. JUSTICE
POWELL admits may well be controlling, or to remand for
reconsideration in light of that case; this is all the more
surprising since MR. JUSTICE POWELL wrote Stone v. Powell, and today makes the fifth vote for the Court's judgment.

															The bizarre result reached by the Court today recalls Mr.
Justice Black's strong dissent in Kaufman v. United
States, 394 U.S. at 394 U. S. 231 .
There, too, a defendant sought release after his conviction had
been affirmed on appeal. There, as here, the defendant's guilt was
manifest, and was not called into question by the constitutional
claims presented. This Court granted relief because it thought
reliable evidence had been unconstitutionally obtained. Mr. Justice
Black's reaction, foreshadowing our long overdue holding in Stone v. Powell, serves as a fitting conclusion to the
views I have expressed:

															"It is seemingly becoming more and more difficult to gain
acceptance for the proposition that punishment of Page 430 U. S. 429 the guilty is desirable, other things being equal. One
commentator, who attempted in vain to dissuade this Court from
today's holding, thought it necessary to point out that there is 'a
strong public interest in convicting the guilty.' . . ."

															". . . I would not let any criminal conviction become
invulnerable to collateral attack where there is left remaining the
probability or possibility that constitutional commands related to
the integrity of the factfinding process have been violated. In
such situations, society has failed to perform its obligation to
prove beyond a reasonable doubt that the defendant committed the
crime. But it is quite a different thing to permit collateral
attack on a conviction after a trial according to due process when
the defendant clearly is, by the proof and by his own admission,
guilty of the crime charged. . . . In collateral attacks, whether
by habeas corpus or by § 2255 proceedings, I would always require
that the convicted defendant raise the kind of constitutional claim
that casts some shadow of a doubt on his guilt. This defendant is
permitted to attack his conviction collaterally although he
conceded at the trial, and does not now deny, that he had robbed
the savings and loan association, and although the evidence makes
absolutely clear that he knew what he was doing. Thus, his guilt
being certain, surely he does not have a constitutional right to
get a new trial. I cannot possibly agree with the Court."

															394 U.S. at 394 U. S.
240 -242.

															Like Mr. Justice Black in Kaufman, I cannot possibly
agree with the Court.

															[ Footnote 3/1 ]

															"The criminal is to go free because the constable has blundered.
. . . A room is searched against the law, and the body of a
murdered man is found. . . . The privacy of the home has been
infringed, and the murderer goes free." People v. Defore, 242 N.Y. 13, 21, 23-24, 150 N.E. 585,
587, 588 (1926).

															The Court protests, ante at 430 U. S. 407 n. 12, that its holding excludes only "Williams' incriminating
statements themselves [as well as] any testimony describing his
having led the police to the victim's body," thus hinting that
successful retrial of this palpably guilty felon is realistically
possible. Even if this were all, and the corpus delicti could be used to establish the fact and manner of the victim's
death, the Court's holding clearly bars all efforts to let the jury
know how the police found the body. But the Court's further -- and
remarkable -- statement that "evidence of where the body was found
and of its condition" could be admitted only "on the theory that
the body would have been discovered in any event" makes clear that
the Court is determined to keep the truth from the jurors pledged
to find the truth. If all use of the corpus delicti is to
be barred by the Court as "fruit of the poisonous tree" under Wong Sun v. United States, 371 U.
S. 471 (1963), except on the unlikely theory suggested
by the Court, the Court renders the prospects of doing justice in
this case exceedingly remote.

															[ Footnote 3/2 ]

															Such a paternalistic rule is particularly anomalous in the Sixth
Amendment context, where this Court has only recently discovered an
independent constitutional right of self-representation, allowing
an accused the absolute right to proceed without a lawyer at trial,
once he is aware of the consequences. Faretta v.
California, 422 U. S. 806 (1975).

															[ Footnote 3/3 ]

															Paradoxically, in light of the result reached, the Court
acknowledges that Williams repeatedly stated: "When I get to Des
Moines and see Mr. McKnight, I am going to tell you the whole
story." Read in context, it is plain that Williams was saying he
intended to confess. The Court then goes on to hold, in effect,
that Williams could not change his mind until he reached Des
Moines.

															[ Footnote 3/4 ]

															One familiar example of this Court's unwillingness to apply the
prophylactic exclusionary rule beyond its natural scope is the
requirement that evidence seized in violation of the rights of
another person may not be challenged by a defendant whose own
rights were not invaded. Alderman v. United States, 394 U. S. 165 , 394 U. S.
174 -175 (1969).

															Another is the rule that the "taint" of a constitutional
violation may be vitiated by later events so that evidence which
would not have been obtained but for the constitutional violation
may yet be admissible. Wong Sun v. United States, 371 U. S. 471 (1963); see Brown v. Illinois, 422 U.
S. 590 (1975).

															Both these limitations on the use of the exclusionary rule are
inconsistent with its deterrent rationale. If courts wished to
enhance the deterrent effect on law enforcement officers, all
evidence whose seizure could be traced directly to any
constitutional violation would be suppressed. It is evident that
our refusal to expand the rule in this fashion represents a
considered balancing between "the additional benefits of extending
the exclusionary rule" and "the public interest in prosecuting
those accused of crime and having them acquitted or convicted on
the basis of all the evidence which exposes the truth." Alderman v. United States, supra at 394 U. S. 175 ; see United States v. Calandra, 414 U.
S. 338 , 414 U. S. 348 (1974).

															[ Footnote 3/5 ]

															Indeed, if this were a Fourth Amendment case, our course would
be clear; only last Term, in Stone v. Powell, we held that
application of the exclusionary rule in federal habeas corpus has
such a minimal deterrent effect on law enforcement officials that
habeas relief should not be granted on the ground that
unconstitutionally seized evidence was introduced at trial. Since
the quantum of deterrence provided by federal habeas does not vary
with the constitutional provision at issue, it appears that the
Court sees fundamental, though unarticulated, differences in the
exclusionary sanction when it is applied in other contexts.

															[ Footnote 3/6 ]

															Statements obtained in violation of Miranda have long
been used for impeachment purposes. Oregon v. Hass, 420 U. S. 714 (1975); Harris v. New York, 401 U.
S. 222 (1971). See also Walder v. United
States, 347 U. S. 62 (1954).

															[ Footnote 3/7 ]

															Indeed, we determine whether pretrial proceedings are "critical"
by asking whether counsel is there needed to protect the fairness
of the trial. See United States v. Ash, 413 U.
S. 300 , 413 U. S. 322 (1973) (STEWART, J., concurring); Schneckloth v.
Bustamonte, 412 U. S. 218 , 412 U. S. 239 (1973). It is also clear that the danger of factual error was the
moving force behind the counsel guarantee in such cases as United States v. Wade, 388 U. S. 218 (1967) (post-indictment lineups).

															[ Footnote 3/8 ]

															This is a far cry from Massiah v. United States, 377 U. S. 201 (1964). Massiah's statements had no independent indicia of
reliability, as do respondent's. Moreover, Massiah was unaware that
he was being interrogated by ruse, and had not been advised of his
right to counsel.

															Here, as MR. JUSTICE BLACKMUN has noted, there was no
interrogation of Williams in the sense that term was used in Massiah, Escobedo v. Illinois, 378 U.
S. 478 (1964), or Miranda. That the detective's
statement appealed to Williams' conscience is not a sufficient
reason to equate it to a police station grilling. It could well be
that merely driving on the road and passing the intersection where
he had turned off to bury the body might have produced the same
result without any suggestive comments.

															[ Footnote 3/9 ]

															Clearly there will be many cases where evidence obtained in
violation of "right to counsel" rules is inadmissible, either for
reasons related to the normative purposes of the Sixth Amendment or
to the deterrence of unlawful police conduct. But this is, on the
Court's facts, not such a case, and it hardly furthers reasoned
analysis to lump it into an undifferentiated conceptual category
for reasons which do not apply to it.

															MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN and MR.
JUSTICE REHNQUIST join, dissenting.

															The respondent in this case killed a 10-year-old child. The
majority sets aside his conviction, holding that certain Page 430 U. S. 430 statements of unquestioned reliability were unconstitutionally
obtained from him, and, under the circumstances, probably makes it
impossible to retry him. Because there is nothing in the
Constitution or in our previous cases which requires the Court's
action, I dissent. I The victim in this case disappeared from a YMCA building in Des
Moines, Iowa, on Christmas Eve in 1968. Respondent was seen shortly
thereafter carrying a bundle wrapped in a blanket from the YMCA to
his car. His car was found in Davenport, Iowa, 160 miles away, on
Christmas Day. A warrant was then issued for his arrest. On the day
after Christmas, respondent surrendered himself voluntarily to
local police in Davenport, where he was arraigned. The Des Moines
police, in turn, drove to Davenport, picked respondent up and drove
him back to Des Moines. During the trip back to Des Moines,
respondent made statements evidencing his knowledge of the
whereabouts of the victim's clothing and body and leading the
police to the body. The statements were, of course, made without
the presence of counsel, since no counsel was in the police car.
The issue in this case is whether respondent -- who was entitled
not to make any statements to the police without consultation with
and/or presence of counsel, [ Footnote
4/1 ] validly waived those rights.

															The relevant facts are as follows. Before the Des Moines police
officers arrived in Davenport, respondent was twice advised, once
by Davenport police and once by a judge, of his right to counsel
under Miranda v.
Arizona , 384 U.S. Page 430 U. S. 431 436 (1966). Respondent had, in any event, not only retained
counsel prior to the arrival of the Des Moines police, but had
consulted with that counsel on the subject of talking to the
police. His attorney, Mr. McKnight, spoke with him from the Des
Moines police office when respondent was in the Davenport police
office. He advised respondent not to talk to the Des Moines police
officers during the trip back to Des Moines, but told him that he
was "going to have to tell the officers where she [the victim] is"
when he arrived in Des Moines. Respondent also consulted with a
lawyer in Davenport, who also advised him against talking to the
police during the ride back to Des Moines. Thus, prior to the
arrival of the Des Moines police, respondent had been effectively
informed by at least four people that he need not talk to the
police in the absence of counsel during his trip to Des Moines.
Then, when the Des Moines police arrived, one of them advised
respondent, inter alia, "that he had a right to an
attorney present during any questioning." The Des Moines police
officer asked respondent: "[D]o you fully understand that?"
Respondent said that he did. The officer then

															"advised him that [the officer] wanted him to be sure to
remember what [the officer] had just told him, because it was a
long ride back to Des Moines and he and [the officer] would be
visiting."

															Respondent then consulted again with the Davenport attorney, who
advised him not to make any statements to the police officers, and
so informed the officers -- directing them not to question him.
After this series of warnings by two attorneys, two sets of police
officers, and a judge, the trip to Des Moines commenced.

															Sometime early in the trip, one of the officers, Detective
Leaming, said:

															"I want to give you something to think about while we're
traveling down the road. . . . Number one, I want you to observe
the weather conditions, it's raining, it's sleeting, it's freezing,
driving is very treacherous, visibility Page 430 U. S. 432 is poor, it's going to be dark early this evening. They are
predicting several inches of snow for tonight, and I feel that you
yourself are the only person that knows where this little girl's
body is, that you yourself have only been there once, and if you
get a snow on top of it, you yourself may be unable to find it.
And, since we will be going right past the area on the way into Des
Moines, I feel that we could stop and locate the body, that the
parents of this little girl should be entitled to a Christian
burial for the little girl who was snatched away from them on
Christmas [E]ve and murdered. And I feel we should stop and locate
it on the way in, rather than waiting until morning and trying to
come back out after a snow storm, and possibly not being able to
find it at all."

															Respondent asked Detective Leaming why he thought their route to
Des Moines would be taking them past the girl's body, and Leaming
responded that he knew the body was in the area of Mitchellville --
a town they would be passing on the way to Des Moines. Leaming then
stated: "I do not want you to answer me. I don't want to discuss it
any further. Just think about it as we're riding down the road." On
several occasions during the trip, respondent told the officers
that he would tell them the whole story when he got to Des Moines
and saw Mr. McKnight -- an indication that he knew he was entitled
to wait until his counsel was present before talking to the police.
[ Footnote 4/2 ] Page 430 U. S. 433 Some considerable time thereafter, [ Footnote 4/3 ] without any prompting on the part of any
state official so far as the record reveals, respondent asked
whether the police had found the victim's shoes. The subject of the
victim's clothing had never been broached by the police nor
suggested by anything the police had said. So far as the record
reveals, the subject was suggested to respondent solely by the fact
that the police car was then about to pass the gas station where
respondent had hidden the shoes. When the police said they were
unsure whether they had found the shoes, respondent directed them
to the gas station. When the car continued on its way to Des
Moines, responded asked whether the blanket had been found. Once
again this subject had not previously been broached. Respondent
directed the officers to a rest area where he had left the blanket.
When the car again continued, respondent said that he would direct
the officers to the victim's body, and he did so. II The strictest test of waiver which might be applied to this case
is that set forth in Johnson v. Zerbst, 304 U.
S. 458 , 304 U. S. 464 (1938), and quoted by the majority, ante at 430 U. S. 404 .
In order to show that a right has been waived under this test, the
State must prove "an intentional relinquishment or abandonment of a
known right or privilege." The majority creates no new rule
preventing an accused who has retained a lawyer from waiving his
right to the lawyer's presence during questioning. The majority
simply finds that no waiver was proved in this case. I disagree.
That respondent knew of his right not to say anything to the
officers without advice and presence of counsel is established on
this record to a moral Page 430 U. S. 434 certainty. He was advised of the right by three officials of the
State -- telling at least one that he understood the right -- and
by two lawyers. [ Footnote 4/4 ]
Finally, he further demonstrate his knowledge of the right by
informing the police that he would tell them the story in the
presence of McKnight when they arrived in Des Moines. The issue in
this case, then, is whether respondent relinquished that right
intentionally.

															Respondent relinquished his right not to talk to the police
about his crime when the car approached the place where he had
hidden the victim's clothes. Men usually intend to do what they do,
and there is nothing in the record to support the proposition that
respondent's decision to talk was anything but an exercise of his
own free will. Apparently, without any prodding from the officers,
respondent -- who had earlier said that he would tell the whole
story when he arrived in Des Moines -- spontaneously changed his
mind about the timing of his disclosures when the car approached
the places where he had hidden the evidence. However, even if his
statements were influenced by Detective Leaming's above-quoted
statement, respondent's decision to talk in the absence of counsel
can hardly be viewed as the product of an overborne will. The
statement by Leaming was not coercive; it was accompanied by a
request that respondent not respond to it; and it was delivered
hours before respondent decided to make any statement. Respondent's
waiver was thus knowing and intentional.

															The majority's contrary conclusion seems to rest on the fact
that respondent "asserted" his right to counsel by retaining and
consulting with one lawyer and by consulting with another. How this
supports the conclusion that respondent's later relinquishment of
his right not to talk in the Page 430 U. S. 435 absence of counsel was unintentional is a mystery. The fact that
respondent consulted with counsel on the question whether he should
talk to the police in counsel's absence makes his later decision to
talk in counsel's absence better informed and, if anything, more
intelligent.

															The majority recognizes that, even after this "assertion" of his
right to counsel, it would have found that respondent waived his
right not to talk in counsel's absence if his waiver had been
express -- i.e., if the officers had asked him in the car
whether he would be willing to answer questions in counsel's
absence, and if he had answered "yes." Ante at 430 U. S. 405 .
But waiver is not a formalistic concept. Waiver is shown whenever
the facts establish that an accused knew of a right and intended to
relinquish it. Such waiver, even if not express, [ Footnote 4/5 ] was plainly shown here. The only
other conceivable Page 430 U. S. 436 basis for the majority's holding is the implicit suggestion, ante at 430 U. S.
400 -401, that the right involved in Massiah v.
United States, 377 U. S. 201 (1964), as distinguished from the right involved in Miranda v.
Arizona, 384 U. S. 436 (1966), is a right not to be asked any questions in
counsel's absence, rather than a right not to answer any
questions in counsel's absence, and that the right not to be asked questions must be waived before the
questions are asked. Such wafer-thin distinctions cannot determine
whether a guilty murderer should go free. The only conceivable
purpose for the presence of counsel during questioning is to
protect an accused from making incriminating answers. Questions, unanswered, have no significance at all. Absent coercion
[ Footnote 4/6 ] -- no matter how
the Page 430 U. S. 437 right involved is defined -- an accused is amply protected by a
rule requiring waiver before or simultaneously with the giving by
him of an answer or the making by him of a statement. III The consequence of the majority's decision is, as the majority
recognizes, extremely serious. A mentally disturbed killer whose
guilt is not in question may be released. Why? Apparently the
answer is that the majority believes that the law enforcement
officers acted in a way which involves some risk of injury to
society, and that such conduct should be deterred. However, the
officers' conduct did not, and was not likely to, jeopardize the
fairness of respondent's trial, or in any way risk the conviction
of an innocent man -- the risk against which the Sixth Amendment
guarantee of assistance of counsel is designed to protect. Powell v. Alabama, 287 U. S. 45 (1932); Johnson v. Zerbst, 304 U.
S. 458 (1938); Hamilton v. Alabama, 368 U. S. 52 (1961); Gideon v. Wainwright, 372 U.
S. 335 (1963); White v. Maryland, 373 U. S.
59 (1963); United States v. Wade, 388 U.
S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967); Coleman v. Alabama, 399 U. S.
1 Page 430 U. S. 438 (1970); and Argersinger v. Hamlin, 407 U. S.
25 (1972). But see Massiah v. United States,
supra. The police did nothing "wrong," let alone anything
"unconstitutional." To anyone not lost in the intricacies of the
prophylactic rules of Miranda v. Arizona, the result in
this case seems utterly senseless; and for the reasons stated in 430 U. S. supra, even applying those rules, as well as the rule of Massiah v. United States, supra, the statements made by
respondent were properly admitted. In light of these
considerations, the majority's protest that the result in this case
is justified by a "clear violation" of the Sixth and Fourteenth
Amendments has a distressing hollow ring. I respectfully
dissent.

															[ Footnote 4/1 ]

															It does not matter whether the right not to make statements in
the absence of counsel stems from Massiah v. United
States, 377 U. S. 201 (1964), or Miranda v. Arizona, 384 U.
S. 436 (1966). In either case, the question is one of
waiver. Waiver was not addressed in Massiah because there,
the statements were being made to an informant, and the defendant
had no way of knowing that he had a right not to talk to him
without counsel.

															[ Footnote 4/2 ]

															The record does not make it crystal clear that these statements,
or some of them, followed the above-quoted statements by Detective
Leaming. However, the record reveals that Leaming's statement was
made not long after leaving Davenport, and that respondent's
statement that he would tell the whole story when they arrived in
Des Moines was made "several times." It is reasonable to infer that
respondent's statement followed that by Leaming. During some of the
rest of the trip, respondent asked questions of the officers about
the investigation, about how they would treat him, and about a
number of subjects unrelated to the case.

															[ Footnote 4/3 ]

															The trip was 160 miles long, and was made in bad weather.
Leaming's statement was made shortly after leaving Davenport.
Respondent's statements about the victim's clothes were made
shortly before arriving in Mitchellville, a near suburb of Des
Moines.

															[ Footnote 4/4 ]

															Moreover, he in fact received advice of counsel on at least two
occasion on the question whether he should talk to the police on
the trip to Des Moines.

															[ Footnote 4/5 ]

															The Courts of Appeals, in administering the rule of Miranda
v. Arizona, have not required an express waiver of the rights
to silence and to counsel which an accused must be advised about
under that case. Waiver has been found where the accused is
informed of those rights, understands them, and then proceeds
voluntarily to answer questions in the absence of counsel. United States v. Marchildon, 519 F.2d 337, 343 (CA8 1975)
("Waiver depends on no form of words, written or oral. It is to be
determined from all of the surrounding circumstances. Addressing
ourselves to this issue, we held in Hughes v. Swenson, 452
F.2d 866, 867-868 (CA8 1971), that: The thrust of appellant's
claim is that a valid waiver cannot be effective absent an
expressed declaration to that effect. We are cited to no case which
supports appellant's thesis, and independent research discloses
none. To the contrary, the Fifth, Seventh, Ninth, and Tenth
Circuits have held, in effect, that, if the defendant is
effectively advised of his rights and intelligently and understandingly declines to exercise them, the waiver is
valid'"); United States v. Ganter, 436 F.2d 364, 370 (CA7
1970) ("[A]n express statement that the individual does not want a
lawyer is not required if it appears that the defendant was
effectively advised of his rights and he then intelligently and
understandingly declined to exercise them"); United States v.
James, 528 F.2d 999, 1019 (CA5 1976) ("`All that the
prosecution must show is that the defendant was effectively advised
of his rights, and that he then intelligently and understandingly
declined to exercise them'"); Blackmon v. Blackledge, 541
F.2d 1070, 1072 (CA4 1976) ("[H]e was reasonably questioned only
after having been fully informed of his rights and permitted to
make a telephone call. Under such circumstances, a suspect's
submission to questioning without objection and without requesting
a lawyer is clearly a waiver of his right to counsel, if, indeed,
he understands his rights"); United States v. Boston, 508
F.2d 1171 (CA2 1974); United States v. Johnson, 466 F.2d
1206 (CA8 1972); Mitchell v. United States, 140
U.S.App.D.C. 209, 434 F.2d 483 (1970); Bond v. United
States, 397 F.2d 162 (CA10 1968). There is absolutely no reason to require an additional question
to the already cumbersome Miranda litany just because the
majority finds another case -- Massiah v. United States --
providing exactly the same right to counsel as that involved in Miranda. In either event, the issue is, as the majority
recognizes, one of the proof necessary to establish waiver. If an
intentional relinquishment of the right to counsel under Miranda is established by proof that the accused was
informed of his right and then voluntarily answered questions in
counsel's absence, then similar proof establishes an intentional
relinquishment of the Massiah right to counsel.

															[ Footnote 4/6 ]

															There is a rigid prophylactic rule set forth in Miranda v.
Arizona that, once an arrestee requests presence of counsel at
questioning, questioning must cease. The rule depends on
an indication by the accused that he will be unable to
handle the decision whether or not to answer questions without
advice of counsel, see Michigan v. Mosley, 423 U. S.
96 , 423 U. S. 110 n. 2 (1975) (WHITE, J., concurring), and is inapplicable to this
case for two reasons. First, at no time did respondent indicate a desire not to be asked questions outside the presence of
his counsel -- notwithstanding the fact that he was told that he
and the officers would be "visiting in the car." The majority
concludes, although studiously avoiding reliance on Miranda, that respondent asserted his right to
counsel. This he did in some respects, but he never, himself,
asserted a right not to be questioned in the absence of counsel.
Second, as is noted in the dissenting opinion of MR. JUSTICE
BLACKMUN, respondent was not questioned. The rigid prophylactic
rule -- as the majority implicitly recognizes -- is designed solely
to prevent involuntary waivers of the right against
self-incrimination, and is not to be applied to a statement by a
law enforcement officer accompanied by a request by the officer
that the accused make no response followed by more than an hour of
silence and an apparently spontaneous statement on a subject -- the
victim's shoes -- not broached in the "speech." Under such
circumstances. there is not even a small risk that the waiver will
be involuntary.

															MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE and MR.
JUSTICE REHNQUIST join, dissenting.

															The State of Iowa, and 21 States and others, as amici
curiae, strongly urge that this Court's procedural (as
distinguished from constitutional) ruling in Miranda v.
Arizona, 384 U. S. 436 (1966), be reexamined and overruled. I, however, agree with the
Court, ante at 430 U. S. 397 ,
that this is not now the case in which that issue need be
considered.

															What the Court chooses to do here, and with which I disagree, is
to hold that respondent Williams' situation was in the mold of Massiah v. United States, 377 U.
S. 201 (1964), that is, that it was dominated by a
denial to Williams of his Sixth Amendment right to counsel after
criminal proceedings had been instituted against him. The Court
rules that the Sixth Amendment was violated because Detective
Leaming "purposely sought during Williams' isolation from his
lawyers to obtain as much incriminating information as possible." Ante at 430 U. S. 399 ,
and POWELL, J., concurring, ante at 430 U. S.
410 -413. I cannot regard that as unconstitutional per se. First, the police did not deliberately seek to isolate Williams
from his lawyers so as to deprive him of the Page 430 U. S. 439 assistance of counsel., cf. Escobedo v. Illinois, 378 U. S. 478 (1964). The isolation in this case was a necessary incident of
transporting Williams to the county where the crime was committed.
[ Footnote 5/1 ]

															Second, Leaming's purpose was not solely to obtain incriminating
evidence. The victim had been missing for only two days, and the
police could not be certain that she was dead. Leaming, of course,
and in accord with his duty, was "hoping to find out where that
little girl was," ante at 430 U. S. 399 ,
but such motivation does not equate with an intention to evade the
Sixth Amendment. [ Footnote 5/2 ]
Moreover, the Court seems to me to place an undue emphasis, ante at 430 U. S. 392 , 430 U. S. 400 ,
and aspersion on what it and the lower courts have chosen to call
the "Christian burial speech," and on Williams' "deeply religious"
convictions.

															Third, not every attempt to elicit information should be
regarded as "tantamount to interrogation," ante at 430 U. S. 400 .
I am not persuaded that Leaming's observations and comments, made
as the police car traversed the snowy and slippery miles between
Davenport and Des Moines that winter afternoon, were an
interrogation, direct or subtle, of Williams. Contrary to this
Court's statement, ibid., the Iowa Supreme Court appears
to me to have thought and held otherwise, State v.
Williams, 182 N.W.2d 396 ,
403-405 (1970), and I agree. Williams, after all, was counseled by
lawyers, and warned by the arraigning judge in Davenport and by
the Page 430 U. S. 440 police, and yet it was he who started the travel conversations
and brought up the subject of the criminal investigation. Without
further reviewing the circumstances of the trip, I would say it is
clear there was no interrogation. In this respect, I am in full
accord with Judge Webster in his vigorous dissent, 509 F.2d 227,
234-237, and with the views implicitly indicated by Chief Judge
Gibson and Judge Stephenson, who joined him in voting for rehearing
en banc.

															In summary, it seems to me that the Court is holding that Massiah is violated whenever police engage in any conduct,
in the absence of counsel, with the subjective desire to obtain
information from a suspect after arraignment. Such a rule is far
too broad. Persons in custody frequently volunteer statements in
response to stimuli other than interrogation. See, e.g., United
States v. Cook, 530 F.2d 145, 152-153 (CA7), cert.
denied, 426 U.S. 909 (1976) (defendant engaged officers in
conversation while being transported to magistrate); United
States v. Martin, 511 F.2d 148, 150-151 (CA8 1975) (agent
initiated conversation with suspect, provoking damaging admission); United States v. Menichino, 497 F.2d 935, 939-941 (CA5
1974) (incriminating statements volunteered during booking
process); Haire v. Sarver, 437 F.2d 1262 (CA8), cert.
denied, 404 U.S. 910 (1971) (statements volunteered in
response to questioning of defendant's wife). When here is no
interrogation, such statements should be admissible as long as they
are truly voluntary. [ Footnote
5/3 ]

															The Massiah point thus being of no consequence, I would
vacate the judgment of the Court of Appals and remand Page 430 U. S. 441 the case for consideration of the issue of voluntariness, in the
constitutional sense, of Williams' statements, an issue the Court
of Appeals did not reach when the case was before it.

															One final word: I can understand the discomfiture the Court
obviously suffers and expresses in Part IV of its opinion, ante at 430 U. S. 406 ,
and the like discomfiture expressed by Justice (now United States
District Judge) Stuart of the Iowa court in the dissent he felt
compelled to make by this Court's precedents, 182 N.W.2d at 406.
This was a brutal, tragic, and heinous crime inflicted upon a young
girl on the afternoon of the day before Christmas. With the
exclusionary rule operating as the Court effectuates it, the
decision today probably means that, as a practical matter, no new
trial will be possible at this date eight years after the crime,
and that this respondent necessarily will go free. That, of course,
is not the standard by which a case of this kind strictly is to be
judged. But, as Judge Webster in dissent below observed, 509 F.2d
at 237, placing the case in sensible and proper perspective: "The
evidence of Williams' guilt was overwhelming. No challenge is made
to the reliability of the factfinding process." I am in full
agreement with that observation.

															[ Footnote 5/1 ]

															Neither attorney McKnight nor attorney Kelly objected to
Williams' being returned to Des Moines, although each sought
assurance that he would not be interrogated. That "the entire
setting was conducive to . . . psychological coercion," POWELL, J.,
concurring, ante at 430 U. S. 412 ,
was more attributable to Williams' flight from Des Moines than to
any machinations of the police. Surely the police are not to be
blamed for the facts that the murder was committed on Christmas Eve
and that the weather was ominous.

															[ Footnote 5/2 ]

															Indeed, Williams already had promised Leaming that he would tell
"the whole story" when he reached Des Moines. Ante at 430 U. S.
392 .

															[ Footnote 5/3 ]

															With all deference to the Court, I do not agree that Massiah regarded it as "constitutionally irrelevant" that
the statements in that case were surreptitiously obtained, ante at 430 U. S. 400 .
The Massiah opinion quoted with approval the dissenting
Circuit Judge's statement that "Massiah was more seriously imposed
upon . . . because he did not even know that he was under
interrogation by a government agent." 377 U.S. at 377 U. S.
206 .

Summary:
Here is a summary of the case:

The Supreme Court ruled that the respondent, who had been advised by lawyers not to make any statements until consulting with his attorney, was deprived of his constitutional right to assistance of counsel when a police officer made statements to elicit an incriminating response during an automobile ride, leading to the respondent making incriminating statements and eventually directing police to the victim's body. The Court affirmed the lower court's decision to grant the respondent's petition for habeas corpus, finding that the evidence obtained during the automobile ride was wrongly admitted at trial and that the respondent had not waived his right to counsel. The Court also held that the District Court correctly applied the law in resolving disputed evidentiary facts.