Supreme Court of the United States
Lou V. BREWER, Warden, Petitioner,
Robert Anthony WILLIAMS, aka Anthony Erthel Williams.
430 U.S. 387 (1977)
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 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.
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, 86 S.Ct.
1602, 16 L.Ed.2d 694. The Davenport police then telephoned 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 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 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."
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. 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 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
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,
Iowa, 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
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 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, 84 S.Ct. 1758, 12 L.Ed.2d 977, and Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; 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, 8 Cir., 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, 96 S.Ct. 561, 46
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. s 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, 83 S.Ct. 745, 9 L.Ed.2d 770, provides that, subject
to enumerated exceptions, federal habeas corpus courts shall accept as
correct the factual determinations made by the courts of the States.
We conclude that there was no disregard of s 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 322, 83 S.Ct. at 761, 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 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. s 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. s 2254(d) require no more.
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. 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, 438-439, 94 S.Ct. 2357, 2360, 2361, 41 L.Ed.2d 182. 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, 79 S.Ct. 1202, 3 L.Ed.2d
1265. For it is clear that the judgment before us must in any event be
affirmed upon the ground that Williams was deprived 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, 57, 53 S.Ct. 55, 59, 77 L.Ed. 158:
"(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, 92 S.Ct. 1877, 32 L.Ed.2d 411; Coleman v.
Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387. But its basic
contours, which are identical in state and federal contexts, Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Argersinger v.
Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, 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 a 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, 406 U.S. at 689, 92 S.Ct. at 1882. See Powell v. Alabama, supra;
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Hamilton
v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114; Gideon v.
Wainwright, supra; White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10
L.Ed.2d 193; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926,
18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18
L.Ed.2d 1178; 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."
"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.
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. 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 206,
84 S.Ct., at 1203.
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, 85 S.Ct. 1556, 14 L.Ed.2d 682;
United States v. Crisp, 435 F.2d 354, 358 (C.A.7); United States
ex rel. O'Connor v. New Jersey, 405 F.2d 632, 636 (C.A.3); Hancock v.
White, 378 F.2d 479 (C.A.1); 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.
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
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.
The Iowa courts recognized that Williams had been denied the
constitutional right to the assistance of counsel. 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
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 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 quote
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, 507, 73 S.Ct. 397, 446, 97
(separate opinion). See Townsend v. Sain, 372 U.S., at 309 n. 6, 318,
83 S.Ct., at 759; Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245,
1246, 16 L.Ed.2d 314.
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 464, 58 S.Ct., at 1023.
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, 513, 82 S.Ct. 884, 888, 8 L.Ed.2d 70;
cf. Miranda v. Arizona, 384 U.S., at 471, 86 S.Ct., at 1626, and that
courts indulge in every reasonable presumption against waiver, e. g.,
Brookhart v. Janis, supra, 384 U.S. at 4, 86 S.Ct. at 1246; Glasser v.
United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680. 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, 238-240, 93 S.Ct.
2041, 2053-2054, 36 L.Ed.2d 854; United States v. Wade, 388 U.S., at
237, 87 S.Ct., at 1937.
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 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
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 Fourteenth
Amendments. It only held, as do we, that he did not.
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, 605,
68 S.Ct. 302, 306, 92 L.Ed. 224 (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.
It is so ordered.
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 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, 320-321, 79 S.Ct. 1202,
1206, 3 L.Ed.2d 1265 (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 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
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, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242 (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 change a
dangerous criminal will be loosed on the streets, the 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 (1926), see opinion of
THE CHIEF JUSTICE, post, at 1248, and n. 1, but rather the
closing words of Mr. Justice Brandeis' great dissent in Olmstead v.
United States, 277 U.S. 438, 471, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944
"In a government of laws, existence of the government will be
imperilled 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
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; (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 waive the right; and (iii) the burden was on the State to
show that Williams in fact had waived the right before the police
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
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 statutes 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 CHIEF JUSTICE concludes that
prior to these statements, Williams had 'made a valid waiver' of his
right to have counsel present. Post, at 1248-1249. 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 are 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
The Court of Appeals stated affirmatively that "the facts as found
by the District Court had substantial basis in the record." 509 F.2d
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 1240 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,
515, 96 S.Ct. 1691, 1697, 48 L.Ed.2d 126 (1976) (Powell, J.,
concurring). I find no basis in the record of this case or in the
dissenting opinions 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 1249. 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 1243. 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.
In discussing the exclusionary rule, the dissenting opinion of THE
CHIEF JUSTICE refers to Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037,
49 L.Ed.2d 1067 (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. As Stone was
decided subsequently to these 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, 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
490, 96 S.Ct., at 3050. 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.
Mr. Justice STEVENS, concurring.
Mr. Justice STEWART, in his opinion for the Court which I joint,
Mr. Justice POWELL, and Mr. Justice MARSHALL have 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
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 to do 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 individuals
effective representation by counsel, the State cannot be permitted to
dishonor its promise to this lawyer.
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 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. In so ruling 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 n 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, 464,
58 S.Ct. 1019, 1023, 12 L.Ed.2d 246 (1938). Ante, at 1242. 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 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, 238 n. 25, 93 S.Ct. 2041,
2053, n. 25, 36 L.Ed.2d 854 (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) at 749, 90 S.Ct. (1463), at 1469 (25 L.Ed.2d 747,) can be
answered only by examining all the relevant circumstances to determine
if he has been coerced. The later question turns on the extent of his
Similarly, in McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441,
1446, 25 L.Ed.2d 763 (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 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, 280, 63 S.Ct. 236, 242, 87 L.Ed. 268
(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. 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.
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
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 no turn on such tenuous strands.
In any case, the Court assures us, ante at 1243, 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 thee 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, 411, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Burger, C. J.,
dissenting); Stone v. Powell, 428 U.S. 465, 498-502, 96 S.Ct. 3037,
3053-3055, 49 L.Ed.2d 1067 (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,
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
482, 96 S.Ct., at 3046; United States v. Janis, 428 U.S. 433, 443-447,
96 S.Ct. 3021, 3027-3029, 49 L.Ed.2d 1046 (1976); United States v.
Calandra, 414 U.S. 338, 347-348, 94 S.Ct. 613, 619-620, 38 L.Ed.2d 561
(1974); see Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct.
961, 966-967, 22 L.Ed.2d 176 (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 485-486, 96 S.Ct. at 3047- 3048; United States v. Janis, supra, at
446, 458-459, n. 35, 96 S.Ct., at 3028, 3034, n. 35; United States v.
Peltier, 422 U.S. 531, 536-539, 95 S.Ct. 2313, 2317- 2318, 45 L.Ed.2d
Accordingly, unlawfully obtained evidence is not automatically excluded
from the factfinding process in all circumstances. In a variety
of contexts we inquire whether application 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 348, 94 S.Ct., at 620; accord, Stone v. Powell,
supra, at 486-491, 96 S.Ct., at 3048-3050; United States v. Janis,
supra; Brown v. Illinois, 422 U.S. 590, 606, 608-609, 95 S.Ct. 2254,
2264- 2265, 45 L.Ed.2d 416 (1975) (Powell, J., concurring in part);
United States v. Peltier, supra, at 538-539, 95 S.Ct., at 2318.
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 488, 96 S.Ct., at
3049. 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 609, 95 S.Ct., at
2264 (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, 86
S.Ct. 1602, 16 L.Ed.2d 694 (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 applied in all cases
arising outside the Fourth Amendment.
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 242, 93 S.Ct., at 2055; Linkletter v. Walker, 381 U.S. 618,
638, 85 S.Ct. 1731, 1742, 14 L.Ed.2d 601 (1965); Stone v. Powell, 428
U.S., at 496-497, 96 S.Ct., at 3052-3053 (Burger, C. J., concurring);
Kaufman v. United States, 394 U.S. 217, 237, 89 S.Ct. 1068, 1079, 22
L.Ed.2d 227 (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 638, 85 S.Ct., at 1742, and the need to
preserve the integrity of the human personality and individual free
will. Ibid.; Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274,
279-280, 4 L.Ed.2d 242 (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, 94 S.Ct. 2357,
41 L.Ed.2d 182 (1974); Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct.
2240, 2244, 49 L.Ed.2d 91 (1976); Brown v. Illinois, supra, at 606, 95
S.Ct., at 2263 (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 450, 94 S.Ct., at 2367. 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, 309, 93 S.Ct. 2568, 2573, 37 L.Ed.2d 619
Thus, the right to counsel is fundamentally a "trial" right
necessitated by the legal complexities of a criminal prosecution and
the need to offset, to the trier of fact, the power of the State as
prosecutor. See Schneckloth v. Bustamonte, supra, at 241, 93 S.Ct. at
2055. 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, 224-227, 87 S.Ct. 1926, 1930-1932, 18 L.Ed.2d 1149 (1967);
Schneckloth v. Bustamonte, supra, at 238-239, 93 S.Ct. at 2053-2054.
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, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247
(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, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (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
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,
298-299, 299, 87 S.Ct. 1967, 1970-1971, 18 L.Ed.2d 1199 (1967),
evidence 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. 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 than there was in Stone v. Powell; that holding
was 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, 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 1247. 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 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, 96 S.Ct. 2040, 48
L.Ed.2d 597 (1976), to resolve the constitutional issue in Village of
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97
S.Ct. 555, 50 L.Ed.2d 450 (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 231,
89 S.Ct., at 1076. 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
"It is seemingly becoming more and more difficult to gain acceptance
for the proposition that punishment of 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 fact-finding 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 quote 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 s 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 240-242,
89 S.Ct. at 1081.
Like Mr. Justice Black in Kaufman, I cannot possibly agree with the Court.
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, holding
that certain statements of unquestioned reliability wee
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.
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 drive 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 validly waived those
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. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(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.
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. 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 is poor, it's going
to be dark early this evening. They are predicting several inches of
snow for tonight, and I feel that y u 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.
Some considerable time thereafter, 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, respondent
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.
The strictest test of waiver which might be applied to this case is
that set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019,
1023, 82 L.Ed. 1461 (1938), and quoted by the majority, ante, at 1242.
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 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.
Finally, he further demonstrated 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 him 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 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
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
1242. 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, was plainly shown
here. The only other conceivable basis for the majority's holding
is the implicit suggestion, ante, at 1240- 1241, that the right
involved in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964), as distinguished from the right involved in Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (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 no matter how the 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.
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, 53 S.Ct. 55, 77 L.Ed. 158 (1932);
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938);
Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961);
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963);
White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963);
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149
(1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d
1178 (1967); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26
L.Ed.2d 387 (1970), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct.
2006, 32 L.Ed.2d 530 (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 Part II, 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.
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, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), be re-examined and overruled. I, however,
agree with the Court, ante, at 1239, 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, 84 S.Ct. 1199, 12 L.Ed.2d 246 (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 1240, and POWELL, J., concurring, ante, at
1245-1246. 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 9 assistance of counsel. Cf.
Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977
(1964). The isolation in this case was a necessary incident of
transporting Williams to the county where the crime was committed.
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 1240, but such motivation does not equate with an
intention to evade the Sixth Amendment. Moreover, the Court seems
to me to place an undue emphasis, ante at 1236, 1240, 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 1240. 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 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 (C.A.7), cert. denied, 426 U.S. 909, 96 S.Ct. 2234, 48 L.Ed.2d
835 (1976) (defendant engaged officers in conversation while being
transported to magistrate); United States v. Martin, 511 F.2d 148,
150-151 (C.A.8 1975) (agent initiated conversation with suspect,
provoking damaging admission); United States v. Menichino, 497 F.2d
935, 939-941 (C.A.5 1974) (incriminating statements volunteered
during booking process); Haire v. Sarver, 437 F.2d 1262 (C.A.8), cert.
denied, 404 U.S. 910, 92 S.Ct. 235, 30 L.Ed.2d 182 (1971) (statements
volunteered in response to questioning of defendant's wife). When there
is no interrogation, such statements should be admissible as long as
they are truly voluntary.
The Massiah point thus being of no consequence, I would vacate the
judgment of the Court of Appeals and remand 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 1243, 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.