Government agents, while continuing to investigate narcotics
activities including those of petitioner, who had retained a lawyer
and was free on bail after indictment, without petitioner's
knowledge, secured an alleged confederate's consent to install a
radio transmitter in the latter's automobile. An agent was thereby
enabled to overhear petitioner's damaging statements which, despite
his objection, were used in the trial which resulted in his
conviction.
Held: Incriminating statements thus deliberately
elicited by federal agents from the petitioner, in the absence of
his attorney, deprived the petitioner of his right to counsel under
the Sixth Amendment; therefore such statements could not
constitutionally be used as evidence against him in his trial. Pp.
201-207.
307 F.2d 62, reversed.
MR. JUSTICE STEWART delivered the opinion of the Court.
The petitioner was indicted for violating the federal narcotics
laws. 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 over his objection. He was convicted, and
the Court of Appeals affirmed.{1} We granted certiorari to
Page 377 U. S. 202
consider whether, under the circumstances here presented, the
prosecution's use at the trial of evidence of the petitioner's own
incriminating statements deprived him of any right secured to him
under the Federal Constitution. 374 U.S. 805.
The petitioner, a merchant seaman, was in 1958 a member of the
crew of the S.S.
Santa Maria. In April of that year,
federal customs officials in New York received information that he
was going to transport a quantity of narcotics aboard that ship
from South America to the United States. As a result of this and
other information, the agents searched the
Santa Maria
upon its arrival in New York and found in the afterpeak of the
vessel five packages containing about three and a half pounds of
cocaine. They also learned of circumstances, not here relevant,
tending to connect the petitioner with the cocaine. He was
arrested, promptly arraigned, and subsequently indicted for
possession of narcotics aboard a United States vessel.{2} In July,
a superseding indictment was returned, charging the petitioner and
a man named Colson with the same substantive offense, and in
separate counts charging the petitioner, Colson, and others with
having conspired to possess narcotics aboard a United States
vessel, and to import, conceal, and facilitate the sale of
narcotics.{3} The petitioner, who had retained a lawyer, pleaded
not guilty and was released on bail, along with Colson.
A few days later, and quite without the petitioner's knowledge,
Colson decided to cooperate with the government agents in their
continuing investigation of the narcotics activities in which the
petitioner, Colson, and others had allegedly been engaged. Colson
permitted an agent named Murphy to install a Schmidt radio
transmitter
Page 377 U. S. 203
under the front seat of Colson's automobile, by means of which
Murphy, equipped with an appropriate receiving device, could
overhear from some distance away conversations carried on in
Colson's car.
On the evening of November 19, 1959, Colson and the petitioner
held a lengthy conversation while sitting in Colson's automobile,
parked on a New York street. By prearrangement with Colson, and
totally unbeknown to the petitioner, the agent Murphy sat in a car
parked out of sight down the street and listened over the radio to
the entire conversation. The petitioner made several incriminating
statements during the course of this conversation. At the
petitioner's trial, these incriminating statements were brought
before the jury through Murphy's testimony, despite the insistent
objection of defense counsel. The jury convicted the petitioner of
several related narcotics offenses, and the convictions were
affirmed by the Court of Appeals.{4}
The petitioner argues that it was an error of constitutional
dimensions to permit the agent Murphy at the trial to testify to
the petitioner's incriminating statements which Murphy had
overheard under the circumstances disclosed by this record. This
argument is based upon two distinct and independent grounds. First,
we are told that Murphy's use of the radio equipment violated the
petitioner's rights under the Fourth Amendment, and, consequently,
that all evidence which Murphy thereby obtained was, under the rule
of
Weeks v. United States, 232 U.
S. 383, inadmissible against the petitioner at the
trial. Secondly, it is said that the petitioner's
Page 377 U. S. 204
Fifth and Sixth Amendment rights were violated by the use in
evidence against him of incriminating statements which government
agents had deliberately elicited from him after he had been
indicted and in the absence of his retained counsel. Because of the
way we dispose of the case, we do not reach the Fourth Amendment
issue.
In
Spano v. New York, 360 U. S. 315,
this Court reversed a state criminal conviction because a
confession had been wrongly admitted into evidence against the
defendant at his trial. In that case, the defendant had already
been indicted for first-degree murder at the time he confessed. The
Court held that the defendant's conviction could not stand under
the Fourteenth Amendment. While the Court's opinion relied upon the
totality of the circumstances under which the confession had been
obtained, four concurring Justices pointed out that the
Constitution required reversal of the conviction upon the sole and
specific ground that the confession had been deliberately elicited
by the police after the defendant had been indicted, and therefore
at a time when he was clearly entitled to a lawyer's help. It was
pointed out that, under our system of justice, the most elemental
concepts of due process of law contemplate that an indictment be
followed by a trial, "in an orderly courtroom, presided over by a
judge, open to the public, and protected by all the procedural
safeguards of the law." 360 U.S. at
360 U. S. 327
(STEWART, J., concurring). It was said that a Constitution which
guarantees a defendant the aid of counsel at such a trial could
surely vouchsafe no less to an indicted defendant under
interrogation by the police in a completely extrajudicial
proceeding. Anything less, it was said, might deny a defendant
"effective representation by counsel at the only stage when legal
aid and advice would help him." 360 U.S. at
360 U. S. 326
(DOUGLAS, J., concurring).
Ever since this Court's decision in the
Spano case, the
New York courts have unequivocally followed this constitutional
Page 377 U. S. 205
rule.
"Any secret interrogation of the defendant, from and after the
finding of the indictment, without the protection afforded by the
presence of counsel, contravenes the basic dictates of fairness in
the conduct of criminal causes and the fundamental rights of
persons charged with crime."
People v. Waterman, 9 N.Y.2d 561, 565, 216 N.Y.S.2d 70,
75, 175 N.E.2d 445, 448.{5}
This view no more than reflects a constitutional principle
established as long ago as
Powell v. Alabama, 287 U. S.
45, where the Court noted that,
". . . during perhaps the most critical period of the
proceedings . . . , that is to say, from the time of their
arraignment until the beginning of their trial, when consultation,
thoroughgoing investigation and preparation [are] vitally
important, the defendants . . . [are] as much entitled to such aid
[of counsel] during that period as at the trial itself."
Id. at
287 U. S. 57.
And, since the
Spano decision, the same basic
constitutional principle has been broadly reaffirmed by this Court.
Hamilton v. Alabama, 368 U. S. 52;
White v. Maryland, 373 U. S. 59.
See Gideon v. Wainwright, 372 U.
S. 335.
Here we deal not with a state court conviction, but with a
federal case, where the specific guarantee of the Sixth Amendment
directly applies.{6}
Johnson v.
Zerbst, 304
Page 377 U. S. 206
U.S. 458. We hold that the petitioner was denied the basic
protections of that guarantee 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. It is true that, in the
Spano case, the defendant was interrogated in a police
station, while here the damaging testimony was elicited from the
defendant without his knowledge while he was free on bail. But, as
Judge Hays pointed out in his dissent in the Court of Appeals,
"if such a rule is to have any efficacy, it must apply to
indirect and surreptitious interrogations as well as those
conducted in the jailhouse. In this case, Massiah was more
seriously imposed upon . . . because he did not even know that he
was under interrogation by a government agent."
307 F.2d at 72-73.
The Solicitor General, in his brief and oral argument, has
strenuously contended that the federal law enforcement agents had
the right, if not indeed the duty, to continue their investigation
of the petitioner and his alleged criminal associates even though
the petitioner had been indicted. He points out that the Government
was continuing its investigation in order to uncover not only the
source of narcotics found on the S.S.
Santa Maria, but
also their intended buyer. He says that the quantity of narcotics
involved was such as to suggest that the petitioner was part of a
large and well-organized ring, and indeed that the continuing
investigation confirmed this suspicion, since it resulted in
criminal charges against many defendants. Under these
circumstances, the Solicitor General concludes that the Government
agents were completely "justified in making use of Colson's
cooperation by having Colson continue his normal associations and
by surveilling them."
We may accept, and, at least for present purposes, completely
approve all that this argument implies, Fourth
Page 377 U. S. 207
Amendment problems to one side. We do not question that, in this
case, as in many cases, it was entirely proper to continue an
investigation of the suspected criminal activities of the defendant
and his alleged confederates, even though the defendant had already
been indicted. All that we hold is that the defendant's own
incriminating statements, obtained by federal agents under the
circumstances here disclosed, could not constitutionally be used by
the prosecution as evidence against him at his trial.
Reversed.
307 F.2d 62.
21 U.S.C. § 184a.
21 U.S.C. §§ 173, 174.
The petitioner's trial was upon a second superseding indictment
which had been returned on March 3, 1961, and which included
additional counts against him and other defendants. The Court of
Appeals reversed his conviction upon a conspiracy count, one judge
dissenting, but affirmed his convictions upon three substantive
counts, one judge dissenting. 307 F.2d 62.
See also People v. Davis, 13 N.Y.2d 690, 241 N.Y.S.2d
172, 191 N.E.2d 674 (1963);
People v. Rodriguez, 11 N.Y.2d
279, 229 N.Y.S.2d 353, 183 N.E.2d 651 (1962);
People v.
Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103 (1962);
People v. Di Biasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166
N.E.2d 825 (1960);
People v. Swanson, 18 A.D.2d 832, 237
N.Y.S.2d 400 (2d Dept. 1963);
People v. Price, 18 A.D.2d
739, 235 N.Y.S.2d 390 (3d Dept. 1962);
People v. Wallace,
17 A.D.2d 981, 234 N.Y.S.2d 579 (2d Dept. 1962);
People v.
Karmel, 17 A.D.2d 659, 230 N.Y.S.2d 413 (2d Dept. 1962);
People v. Robinson, 16 A.D.2d 184, 224 N.Y.S.2d 705 (4th
Dept. 1962).
"In all criminal prosecutions, the accused shall enjoy the right
. . . to have the Assistance of Counsel for his defence."
MR. JUSTICE WHITE, with whom MR. JUSTICE CLARK and MR. JUSTICE
HARLAN join, dissenting.
The current incidence of serious violations of the law
represents not only an appalling waste of the potentially happy and
useful lives of those who engage in such conduct, but also an
overhanging, dangerous threat to those unidentified and innocent
people who will be the victims of crime today and tomorrow. This is
a festering problem for which no adequate cures have yet been
devised. At the very least, there is much room for discontent with
remedial measures so far undertaken. And admittedly there remains
much to be settled concerning the disposition to be made of those
who violate the law.
But dissatisfaction with preventive programs aimed at
eliminating crime and profound dispute about whether we should
punish, deter, rehabilitate or cure cannot excuse concealing one of
our most menacing problems until the millennium has arrived. In my
view, a civilized society must maintain its capacity to discover
transgressions of the law and to identify those who flout it. This
much is necessary even to know the scope of the problem, much less
to formulate intelligent countermeasures. It will just not do to
sweep these disagreeable matters under the rug or to pretend they
are not there at all.
Page 377 U. S. 208
It is therefore a rather portentous occasion when a
constitutional rule is established barring the use of evidence
which is relevant, reliable and highly probative of the issue which
the trial court has before it -- whether the accused committed the
act with which he is charged. Without the evidence, the quest for
truth may be seriously impeded, and, in many cases, the trial
court, although aware of proof showing defendant's guilt, must
nevertheless release him because the crucial evidence is deemed
inadmissible. This result is entirely justified in some
circumstances because exclusion serves other policies of overriding
importance, as where evidence seized in an illegal search is
excluded not because of the quality of the proof, but to secure
meaningful enforcement of the Fourth Amendment.
Weeks v. United
States, 232 U. S. 383;
Mapp v. Ohio, 367 U. S. 643. But
this only emphasizes that the soundest of reasons is necessary to
warrant the exclusion of evidence otherwise admissible and the
creation of another area of privileged testimony. With all due
deference, I am not at all convinced that the additional barriers
to the pursuit of truth which the Court today erects rest on
anything like the solid foundations which decisions of this gravity
should require.
The importance of the matter should not be underestimated, for
today's rule promises to have wide application well beyond the
facts of this case. The reason given for the result here -- the
admissions were obtained in the absence of counsel -- would seem
equally pertinent to statements obtained at any time after the
right to counsel attaches, whether there has been an indictment or
not; to admissions made prior to arraignment, at least where the
defendant has counsel or asks for it; to the fruits of admissions
improperly obtained under the new rule; to criminal proceedings in
state courts; and to defendants long since convicted upon
evidence
Page 377 U. S. 209
including such admissions. The new rule will immediately do
service in a great many cases.
Whatever the content or scope of the rule may prove to be, I am
unable to see how this case presents an unconstitutional
interference with Massiah's right to counsel. Massiah was not
prevented from consulting with counsel as often as he wished. No
meetings with counsel were disturbed or spied upon. Preparation for
trial was in no way obstructed. It is only a sterile syllogism --
an unsound one, besides -- to say that because Massiah had a right
to counsel's aid before and during the trial, his out-of-court
conversations and admissions must be excluded if obtained without
counsel's consent or presence. The right to counsel has never meant
as much before,
Cicenia v. LaGay, 357 U.
S. 504;
Crooker v. California, 357 U.
S. 433, and its extension in this case requires some
further explanation, so far unarticulated by the Court.
Since the new rule would exclude all admissions made to the
police, no matter how voluntary and reliable, the requirement of
counsel's presence or approval would seem to rest upon the
probability that counsel would foreclose any admissions at all.
This is nothing more than a thinly disguised constitutional policy
of minimizing or entirely prohibiting the use in evidence of
voluntary out-of-court admissions and confessions made by the
accused. Carried as far as blind logic may compel some to go, the
notion that statements from the mouth of the defendant should not
be used in evidence would have a severe and unfortunate impact upon
the great bulk of criminal cases.
Viewed in this light, the Court's newly fashioned exclusionary
principle goes far beyond the constitutional privilege against
self-incrimination, which neither requires nor suggests the barring
of voluntary pretrial admissions. The Fifth Amendment states that
no person "shall be compelled in any criminal case to be a witness
against
Page 377 U. S. 210
himself. . . ." The defendant may thus not be compelled to
testify at his trial, but he may if he wishes. Likewise, he may not
be compelled or coerced into saying anything before trial; but,
until today, he could if he wished to, and, if he did, it could be
used against him. Whether as a matter of self-incrimination or of
due process, the proscription is against compulsion -- coerced
incrimination. Under the prior law, announced in countless cases in
this Court, the defendant's pretrial statements were admissible
evidence if voluntarily made, inadmissible if not the product of
his free will. Hardly any constitutional area has been more
carefully patrolled by this Court, and, until now, the Court has
expressly rejected the argument that admissions are to be deemed
involuntary if made outside the presence of counsel.
Cicenia v.
LaGay, supra; Crooker v. California, supra. *
The Court presents no facts, no objective evidence, no reasons
to warrant scrapping the voluntary-involuntary test for
admissibility in this area. Without such evidence, I would retain
it in its present form.
This case cannot be analogized to the American Bar Association's
rule forbidding an attorney to talk to the opposing party litigant
outside the presence of his counsel. Aside from the fact that the
Association's canons are not of constitutional dimensions, the
specific canon argued is inapposite because it deals with the
conduct
Page 377 U. S. 211
of lawyers and not with the conduct of investigators. Lawyers
are forbidden to interview the opposing party because of the
supposed imbalance of legal skill and acumen between the lawyer and
the party litigant; the reason for the rule does not apply to
nonlawyers, and certainly not to Colson, Massiah's codefendant.
Applying the new exclusionary rule is peculiarly inappropriate
in this case. At the time of the conversation in question,
petitioner was not in custody, but free on bail. He was not
questioned in what anyone could call an atmosphere of official
coercion. What he said was said to his partner in crime, who had
also been indicted. There was no suggestion, or any possibility, of
coercion. What petitioner did not know was that Colson had decided
to report the conversation to the police. Had there been no prior
arrangements between Colson and the police, had Colson simply gone
to the police after the conversation had occurred, his testimony
relating Massiah's statements would be readily admissible at the
trial, as would a recording which he might have made of the
conversation. In such event, it would simply be said that Massiah
risked talking to a friend who decided to disclose what he knew of
Massiah's criminal activities. But if, as occurred here, Colson had
been cooperating with the police prior to his meeting with Massiah,
both his evidence and the recorded conversation are somehow
transformed into inadmissible evidence despite the fact that the
hazard to Massiah remains precisely the same -- the defection of a
confederate in crime.
Reporting criminal behavior is expected, or even demanded, of
the ordinary citizen. Friends may be subpoenaed to testify about
friends, relatives about relatives and partners about partners. I
therefore question the soundness of insulating Massiah from the
apostasy of his partner in crime, and of furnishing constitutional
sanction for the strict secrecy and discipline of criminal
organizations.
Page 377 U. S. 212
Neither the ordinary citizen nor the confessed criminal should
be discouraged from reporting what he knows to the authorities and
from lending his aid to secure evidence of crime. Certainly, after
this case, the Colsons will be few and far between, and the
Massiahs can breathe much more easily, secure in the knowledge that
the Constitution furnishes an important measure of protection
against faithless compatriots and guarantees sporting treatment for
sporting peddlers of narcotics.
Meanwhile, of course, the public will again be the loser, and
law enforcement will be presented with another serious dilemma. The
general issue lurking in the background of the Court's opinion is
the legitimacy of penetrating or obtaining confederates in criminal
organizations. For the law enforcement agency, the answer for the
time being can only be in the form of a prediction about the future
application of today's new constitutional doctrine. More narrowly,
and posed by the precise situation involved here, the question is
this: when the police have arrested and released on bail one member
of a criminal ring and another member, a confederate, is
cooperating with the police, can the confederate be allowed to
continue his association with the ring, or must he somehow be
withdrawn to avoid challenge to trial evidence on the ground that
it was acquired after, rather than before, the arrest, after,
rather than before, the indictment?
Defendants who are out on bail have been known to continue their
illicit operations.
See Rogers v. United States, 325 F.2d
485 (C.A.10th Cir.). That an attorney is advising them should not
constitutionally immunize their statements made in furtherance of
these operations and relevant to the question of their guilt at the
pending prosecution. In this very case, there is evidence that,
after indictment, defendant Aiken tried to
Page 377 U. S. 213
persuade Agent Murphy to go into the narcotics business with
him. Under today's decision, Murphy may neither testify as to the
content of this conversation nor seize for introduction in evidence
any narcotics whose location Aiken may have made known.
Undoubtedly, the evidence excluded in this case would not have
been available but for the conduct of Colson in cooperation with
Agent Murphy, but is it this kind of conduct which should be
forbidden to those charged with law enforcement? It is one thing to
establish safeguards against procedures fraught with the
potentiality of coercion and to outlaw "easy but self-defeating
ways in which brutality is substituted for brains as an instrument
of crime detection."
McNabb v. United States, 318 U.
S. 332,
318 U. S. 344.
But here there was no substitution of brutality for brains, no
inherent danger of police coercion justifying the prophylatic
effect of another exclusionary rule. Massiah was not being
interrogated in a police station, was not surrounded by numerous
officers or questioned in relays, and was not forbidden access to
others. Law enforcement may have the elements of a contest about
it, but it is not a game.
McGuire v. United States,
273 U. S. 95,
273 U. S. 99.
Massiah and those like him receive ample protection from the long
line of precedents in this Court holding that confessions may not
be introduced unless they are voluntary. In making these
determinations, the courts must consider the absence of counsel as
one of several factors by which voluntariness is to be judged.
See House v. Mayo, 324 U. S. 42,
324 U. S. 45-46;
Payne v. Arkansas, 356 U. S. 560,
356 U. S. 567;
Cicenia v. LaGay, supra, at
357 U. S. 509.
This is a wiser rule than the automatic rule announced by the
Court, which requires courts and juries to disregard voluntary
admissions which they might well find to be the best possible
evidence in discharging their responsibility for ascertaining
truth.
* Today's rule picks up where the Fifth Amendment ends, and bars
wholly voluntary admissions. I would assume, although one cannot be
sure, that the new rule would not have a similar supplemental role
in connection with the Fourth Amendment. While the Fifth Amendment
bars only compelled incrimination, the Fourth Amendment bars only
unreasonable searches. It could be argued, fruitlessly I would
hope, that, if the police must stay away from the defendant, they
must also stay away from his house once the right to counsel has
attached, and that a court must exclude the products of a
reasonable search made pursuant to a properly issued warrant but
without the consent or presence of the accused's counsel.