473 U.S. 916 (1985)

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U.S. Supreme Court

HENDERSON v. FLORIDA , 473 U.S. 916 (1985)

473 U.S. 916

No. 84-6681 Supreme Court of the United States July 1, 1985

On Petition for Writ of Certiorari to the Supreme Court of Florida.

The petition for a writ of certiorari is denied.

Justice MARSHALL, with whom Justice BRENNAN joins, dissenting.

Petitioner, after contacting police and admitting involvement in a series of murders, unambiguously asserted his right to counsel and his desire to have no discussions with the police concerning his case outside the presence of counsel. The legal import of this assertion, made while in police custody, is clear; our cases establish a " 'bright-line rule' that all questioning must cease after an accused requests counsel." Smith v. Illinois, 469 U.S. 91, 98, 494 (1984); see also Edwards v. Arizona, 451 U.S. 477 ( 1981); Miranda v. Arizona, 384 U.S. 436, 471, 474, 1626, 1628 (1966). The reason for this rule is also clear from our cases, for "[i]n the absence of such a bright-line prohibition, the authorities through 'badger[ing]' or 'overreaching'-explicit or subtle, deliberate or unintentional-might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel's assistance." Smith v. Illinois, supra, 469 U.S. at 98. This "bright-line rule" is thus an essential "protective devic[e] . . . employed to dispel the compulsion inherent in custodial surroundings" and to thereby assure that any statements by an accused are the product of free will rather than subtle coercion. Miranda v. Arizona, supra, at 458.


In this case, petitioner contends that police violated this "bright- line rule" and through custodial interrogation did persuade him to incriminate himself further notwithstanding his earlier request for counsel's assistance during questioning; yet the Florida Supreme Court sustained the admission of the subsequently obtained evidence simply on the fact that petitioner was eventually

Page 473 U.S. 916 , 917

persuaded and signed a waiver form. 463 So.2d 196 (1985). Such a rationale cannot be made to conform to this Court's precedents, which establish that as a precondition to a finding of waiver a court must find that the accused, rather than the police, reopened dialogue about the subject matter of the investigation. See Edwards v. Arizona, supra, 451 U.S., at 485; Oregon v. Bradshaw, 462 U.S. 1039, 1044, 2834 (1983) (plurality opinion); id., at 1054 (MARSHALL, J., dissenting).

This Court has not always found it easy to define exactly when and by whom dialogue was reopened, Ibid., and perhaps the instant case can be explained as resulting from these difficulties. Here, however, the State argues that petitioner "initiated" further dialogue by minimally responding to an unrequested police explanation of the accused's fate and by "conveying" a willingness to talk through nonverbal expressions and unrelated "subtle comments." The valuable right to be free from police interrogations in the absence of counsel cannot be made to be so fragile as to crumble under the weight of elicited and subjective inconsequentials . I would grant the petition to make clear that waiver of this right is not so lightly to be assumed.


A few days after his assertion of the right to counsel and his consultation with an attorney, petitioner was transported from one jail to another in connection with an unrelated criminal investigation. The drive lasted almost five hours, and the police officers accompanying petitioner were informed that he had asserted his right to counsel and had been advised by his counsel not to talk with the police. The police officers had nevertheless equipped themselves for the trip by taking along specially prepared forms by which petitioner could waive his right to be free from police interrogation in spite of his previous assertion of that right. In particular, the form declared that the signatory desired to make a statement to the police, that he did not want a lawyer, and that he was aware of his "constitutional rights to disregard the instruction of [ his] attorney and to speak with the officers" transporting him. Response to Pet. for Cert. A-24.

During the course of the 5-hour drive, the police engaged in extended " casual conversation" with petitioner. Although the police officers asserted that none of this conversation concerned any as- [473 U.S. 916 , 918]

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