Respondent, while under arrest for certain crimes and after
being advised of his rights under
Miranda v. Arizona,
384 U. S. 436,
made incriminating statements to the arresting officers. His motion
to suppress evidence of these statements on the ground that he had
not waived his right to assistance of counsel at the time the
statements were made was denied by a North Carolina trial court,
and he was subsequently convicted. The North Carolina Supreme Court
reversed, holding that
Miranda requires that no statement
of a person under custodial interrogation may be admitted in
evidence against him unless, at the time the statement was made, he
explicitly waived the right to the presence of a lawyer.
Held: An explicit statement of waiver is not invariably
necessary to support a finding that the defendant waived the right
to counsel guaranteed by the
Miranda case. The question of
waiver must be determined on the particular facts and circumstances
surrounding the case, and there is no reason in a case such as this
for a
per se rule, such as that of the North Carolina
Supreme Court. By creating an inflexible rule that no implicit
waiver can ever suffice, that court has gone beyond the
requirements of federal organic law, and thus its judgment cannot
stand, since a state court can neither add to nor subtract from the
mandates of the United States Constitution. Pp.
441 U. S.
372-376.
295 N.C. 250,
244 S.E.2d
410, vacated and remanded.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined.
BLACKUN, J., filed a concurring statement,
post, p.
441 U. S. 376.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL and
STEVENS, JJ., joined,
post, p.
441 U.S. 377. POWELL, J., took no part
in the consideration or decision of the case.
Page 441 U. S. 370
MR. JUSTICE STEWART delivered the opinion of the Court.
In evident conflict with the present view of every other court
that has considered the issue, the North Carolina Supreme Court has
held that
Miranda v. Arizona, 384 U.
S. 436, requires that no statement of a person under
custodial interrogation may be admitted in evidence against him
unless, at the time the statement was made, he explicitly waived
the right to the presence of a lawyer. We granted certiorari to
consider whether this
per se rule reflects a proper
understanding of the
Miranda decision. 439 U.S. 1046.
The respondent was convicted in a North Carolina trial court of
kidnaping, armed robbery, and felonious assault. The evidence at
his trial showed that he and a man named Elmer Lee had robbed a gas
station in Goldsboro, N.C., in December, 1976, and had shot the
station attendant as he was attempting to escape. The attendant was
paralyzed, but survived to testify against the respondent.
The prosecution also produced evidence of incriminating
statements made by the respondent shortly after his arrest by
Federal Bureau of Investigation agents in the Bronx, N.Y., on the
basis of a North Carolina fugitive warrant. Outside the presence of
the jury, FBI Agent Martinez testified that, at the time of the
arrest, he fully advised the respondent of the rights delineated in
the
Miranda case. According to the uncontroverted
testimony of Martinez, the agents then took the respondent to the
FBI office in nearby New Rochelle, N.Y. There, after the agents
determined that the respondent had an 11th grade education and was
literate, he was given the Bureau's "Advice of Rights" form,
Page 441 U. S. 371
which he read. [
Footnote 1]
When asked if he understood his rights, he replied that he did. The
respondent refused to sign the waiver at the bottom of the form. He
was told that he need neither speak nor sign the form, but that the
agents would like him to talk to them. The respondent replied: "I
will talk to you, but I am not signing any form." He then made
inculpatory statements. [
Footnote
2] Agent Martinez testified that the respondent said nothing
when advised of his right to the assistance of a lawyer. At no time
did the respondent request counsel or attempt to terminate the
agents' questioning.
At the conclusion of this testimony, the respondent moved to
suppress the evidence of his incriminating statements on the ground
that he had not waived his right to the assistance of counsel at
the time the statements were made. The court denied the motion,
finding that
"the statement made by the defendant, William Thomas Butler, to
Agent David C. Martinez, was made freely and voluntarily to said
agent after having been advised of his rights as required by the
Miranda ruling, including his right to an attorney being
present at the time of the inquiry and that the defendant, Butler,
understood his
Page 441 U. S. 372
rights; [and] that he effectively waived his rights, including
the right to have an attorney present during the questioning by his
indication that he was willing to answer questions, having read the
rights form, together with the Waiver of Rights. . . ."
App. A-22 to A-23. The respondent's statements were then
admitted into evidence, and the jury ultimately found the
respondent guilty of each offense charged.
On appeal, the North Carolina Supreme Court reversed the
convictions and ordered a new trial. It found that the statements
had been admitted in violation of the requirements of the
Miranda decision, noting that the respondent had refused
to waive in writing his right to have counsel present and that
there had not been a specific oral waiver. As it had in at least
two earlier cases, the court read the
Miranda opinion
as
"provid[ing] in plain language that waiver of the right to
counsel during interrogation will not be recognized unless such
waiver is 'specifically made' after the
Miranda warnings
have been given."
295 N.C. 250, 255,
244 S.E.2d
410, 413 (1978).
See State v. Blackmon, 280 N.C. 42,
49-50,
185 S.E.2d
123, 127-128 (1971);
State v. Thacker, 281 N.C. 447,
453-454,
189 S.E.2d
145, 149-150 (1972). [
Footnote
3]
We conclude that the North Carolina Supreme Court erred in its
reading of the
Miranda opinion. There, this Court
said:
"If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden
Page 441 U. S. 373
rests on the government to demonstrate that the defendant
knowingly and intelligently waived his privilege against
self-incrimination and his right to retained or appointed
counsel."
384 U.S. at
384 U. S. 475.
The Court's opinion went on to say:
"An express statement that the individual is willing to make a
statement and does not want an attorney. followed closely by a
statement. could constitute a waiver. But a valid waiver will not
be presumed simply from the silence of the accused after warnings
are given, or simply from the fact that a confession was in fact
eventually obtained."
Ibid. Thus, the Court held that an express statement
can constitute a waiver, and that silence alone after such warnings
cannot do so. But the Court did not hold that such an express
statement is indispensable to a finding of waiver.
An express written or oral statement of waiver of the right to
remain silent or of the right to counsel is usually strong proof of
the validity of that waiver, but is not inevitably either necessary
or sufficient to establish waiver. The question is not one of form,
but rather whether the defendant, in fact, knowingly and
voluntarily waived the rights delineated in the
Miranda
case. As was unequivocally said in
Miranda, mere silence
is not enough. That does not mean that the defendant's silence,
coupled with an understanding of his rights and a course of conduct
indicating waiver, may never support a conclusion tlat a defendant
has waived his rights. The courts must presume that a defendant did
not waive his rights; the prosecution's burden is great; but in at
least some cases, waiver can be clearly inferred from the actions
and words of the person interrogated. [
Footnote 4]
Page 441 U. S. 374
The Court's opinion in
Miranda explained the reasons
for the prophylactic rules it created:
"We have concluded that, without proper safeguards, the process
of in-custody interrogation of persons suspected or accused of
crime contains inherently compelling pressures which work to
undermine the individual's will to resist and to compel him to
speak where he would not otherwise do so freely. In order to combat
these pressures and to permit a full opportunity to exercise the
privilege against self-incrimination, the accused must be
adequately and effectively apprised of his rights and the exercise
of those rights must be fully honored."
Id. at
384 U. S.
467.
The
per se rule that the North Carolina Supreme Court
has found in
Miranda does not speak to these concerns.
There is no doubt that this respondent was adequately and
effectively apprised of his rights. The only question is whether he
waived the exercise of one of those rights, the right to the
presence of a lawyer. Neither the state court nor the respondent
has offered any reason why there must be a negative answer to that
question in the absence of an express waiver. This is not the first
criminal case to question whether a defendant waived his
constitutional rights. It is an issue with which courts must
repeatedly deal. Even when a right so fundamental as that to
counsel at trial is involved, the question of waiver must be
determined on
"the particular facts and circumstances surrounding that case,
including the background,
Page 441 U. S. 375
experience, and conduct of the accused."
Johnson v. Zerbst, 304 U. S. 458,
304 U. S. 464.
See also United States v. Washington, 431 U.
S. 181,
431 U. S. 188;
Schneckloth v. Bustamonte, 412 U.
S. 218;
Frazier v. Cupp, 394 U.
S. 731,
394 U. S.
739.
We see no reason to discard that standard and replace it with an
inflexible
per se rule in a case such as this. As stated
at the outset of this opinion, it appears that every court that has
considered this question has now reached the same conclusion. Ten
of the eleven United States Courts of Appeals [
Footnote 5] and the courts of at least 17 States
[
Footnote 6] have held that an
explicit statement
Page 441 U. S. 376
of waver is not invariably necessy to support a finding that the
defendant waived the right to remain silent or the right to counsel
guaranteed by the
Miranda case. By creating an inflexible
rule that no implicit'waiver call ever suffice, the North Caolina
Supreme Court has gone beyond the requirements of federal organic
law. It follows that its judgment cannot stand, since a state court
can neither add to nor subtract from the mandates of the United
States Constitution.
Oregon v. Hass, 420 U.
S. 714. [
Footnote
7]
Accordingly, the judgment is vacated, and the case is remanded
to the North Carolina Supreme Court for further proceedings not
inconsistent with this opinion.
It is so ordered.
MR. JUSTICE POWELL took no part in the consideration or decision
of this case.
[
Footnote 1]
The parties disagree over whether the respondent was also orally
advised of his
Miranda rights at the New Rochelle office.
There is no dispute that he was given those warnings orally at the
scene of the arrest, or that he read the "Advice of Rights" form in
the New Rochelle office. This factual controversy, therefore, is
not relevant to the basic issue in this case.
The dissenting opinion points out,
post at
441 U. S. 378,
that at oral argument the respondent's counsel disputed the fact
that the respondent is literate. But the trial court specifically
found that "it had been . . . determined by Agent Martinez that the
defendant has an Eleventh Grade Education and that he could read
and write. . . ." App. A-21. This finding, based upon
uncontroverted evidence, is binding on this Court.
[
Footnote 2]
The respondent admitted to the agents that he and Lee had been
drinking heavily on the day of the robbery. He acknowledged that
they had decided to rob a gas station, but denied that he had
actually participated in the robbery. His friend, he said, had shot
the attendant.
[
Footnote 3]
But see State v. Siler, 292 N.C. 543, 550,
234 S.E.2d
733, 738 (1977). In that case, the North Carolina Supreme Court
adhered to the interpretation of
Miranda it first
expressed in
Blackmon, but acknowledged that it might find
waiver without an express written or oral statement if the
defendant's subsequent comments revealed that his earlier silence
had been meant as a waiver. Although
Siler was cited by
the State Supreme Court in the present case, that portion of the
Siler opinion was not discussed .
[
Footnote 4]
We do not today even remotely question the holding in
Carnley v. Cochran, 369 U. S. 506,
which was specifically approved in the
Miranda opinion,
384 U.S. at
384 U. S. 475.
In that case, decided before
Gideon v. Wainwright,
372 U. S. 335, the
Court held that the defendant had a constitutional right to counsel
under the Fourteenth Amendment. The Florida Supreme Court had
presumed that his right had been waived because there was no
evidence in the record that he had requested counsel. The Court
refused to allow a presumption of wiver from a silent record. It
said:
"The record must show, or there must be an allegation and
evidence which show, that an accused was offered counsel but
intelligently and understandingly rejected the offer."
369 U.S. at
369 U. S. 516.
This statement is consistent with our decision today, which is
merely that a court may find an intelligent and understanding
rejection of counsel in situations where the defendant did not
expressly state as much.
[
Footnote 5]
United States v. Speaks, 453 F.2d 966 (CA1 1972);
United States v. Boston, 508 F.2d 1171 (CA2 1974);
United States v. Stuckey, 441 F.2d 1104 (CA3 1971);
Blackmon v. Blackledge, 541 F.2d 1070 (CA4 1976);
United States v. Hayes, 385 F.2d 375 (CA4 1987);
United States v. Cavallino, 498 F.2d 1200 (CA5 1974);
United States v. Montos, 421 F.2d 215 (CA5 1970);
United States v. Ganter, 436 F.2d 364 (CA7 1970);
United States v. Marchildon, 519 F.2d 337 (CA8 1975);
Hughes v. Swenson, 452 F.2d 866 (CA8 1971);
United
States v. Moreno-Lopez, 466 F.2d 1205 (CA9 1972);
United
States v. Hilliker, 436 F.2d 101 (CA9 1970);
Bond v.
United States, 397 F.2d 162 (CA10 1968) (
but see Sullins
v. United States, 389 F.2d 985 (CA10 1968));
United States
v. Cooper, 163 U.S.App.D.C. 55, 499 F.2d 1060 (1974). In
Blackmon v. Blackledge, supra, the Court of Appeals for
the Fourth Circuit specifically rejected the North Carolina Supreme
Court's inflexible view that only express waivers of
Miranda rights can be valid.
The Courts of Appeals have unanimously rejected the similar
argument that refusal to sign a written waiver form precludes a
finding of waiver.
See United States v. Speaks, supra; United
States v. Boston, supra; United States v. Stuckey, supra; United
States v. Thompson, 417 F.2d 196 (CA4 1969);
United States
v. Guzman-Guzman, 488 F.2d 965 (CA5 1974);
United States
v. Caulton, 498 F.2d 412 (CA6 1974);
United States v.
Crisp, 435 F.2d 354 (CA7 1970);
United States v.
Zamarripa, 544 F.2d 978 (CA8 1976);
United States v.
Moreno-Lopez, supra; Bond v. United States, supra; and
United States v. Cooper, supra.
[
Footnote 6]
Sullivan v. State, 351
So. 2d 659 (Ala.Crim.App.),
cert.
denied, 351 So. 2d
665 (Ala.1977);
State v. Pineda, 110 Ariz. 342,
519 P.2d 41
(1974);
State ex rel. Berger v. Superior Court, 109 Ariz.
506, 513 P.2d 935 (1973);
People v.
Johnson, 70 Cal. 2d
541, 450 P.2d 865 (1969) (reversing lower court on other
grounds);
People v. Weaver, 179 Colo. 331,
500 P.2d 980
(1972);
Reed v. People, 171 Colo. 421,
467 P.2d 809
(1970);
State v. Craig, 237 So. 2d 737
(Fla.1970);
Peek v. State, 239 Ga. 422,
238 S.E.2d 12
(1977);
People v. Brooks, 51 Ill. 2d
156,
281 N.E.2d
326 (1972);
State v. Wilson, 215 Kan. 28,
523 P.2d 337
(1974);
State v. Hazelton, 330 A.2d
919 (Me.1975);
Miller v. State, 251 Md. 362, 247 A.2d
530 (1968);
Commonwealth v. Murray, 359 Mass. 541,
269
N.E.2d 641 (19?1);
State v. Alewine, 474 S.W.2d
848 (Mo.1971);
Burnside v. State, 473 S.W.2d
697 (Mo.1971);
Shirey v. State, 520 P.2d
701 (Okla.Crim.App. 1974);
State v. Davidson, 252 Ore.
617,
451 P.2d
481 (1969);
Commonwealth v. Garnett, 458 Pa. 4, 326
A.2d 335 (1974);
Bowlin v. State, 458
S.W.2d 639 (Tenn.Crim.App. 1970);
State v.
Young, 89 Wash. 2d
613,
574 P.2d
1171 (1978).
See also Aaron v. State, 275 A.2d
791 (Del.1971);
State v. Nelson, 257 N.W.2d
356 (Minn.1977);
Land v. Commonwealth, 211 Va. 223,
176 S.E.2d 586 (1970) (reversing lower court on other grounds).
[
Footnote 7]
By the same token, this Court must accept whatever construction
of a state constitution is placed upon it by the highest court of
the State.
MR. JUSTICE BLACKMUN, concurring.
I join the opinion of the Court. My joinder, however, rest on
the assumption that the Court's citation to
Johnson
v.
Page 441 U. S. 377
Zerbst, 304 U. S. 458,
304 U. S. 464
(1938),
ante at
441 U. S.
374-375, is not meant to suggest that the "intentional
relinquishment of a known right" formula -- the formula
Zerbst articulated for determining the waiver
vel
non "of fundamental constitutional rights," 304 U.S. at
304 U. S. 464
-- has any relevance in determining whether a defendant has waived
his "right to the presence of a lawyer,"
ante at
441 U. S. 374,
under
Miranda's prophylactic rule.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL and MR.
JUSTICE STEVENS join, dissenting.
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 470
(1966), held that
"[n]o effective waiver of the right to counsel during
interrogation can be recognized unless
specifically made
after the warnings we here delineate have been given."
(Emphasis added.) Support for this holding was found in
Carnley v. Cochran, 369 U. S. 506,
369 U. S. 516
(1962), which held that, in the absence of an allegation of an
"
affirmative waiver . . . there is no disputed fact
question requiring a hearing." (Emphasis added.)
There is no allegation of an affirmative waiver in this case. As
the Court concedes, the respondent here refused to sign the waiver
form, and "said nothing when advised of his right to the assistance
of a lawyer."
Ante at
441 U. S. 371.
Thus, there was no "disputed fact question requiring a hearing,"
and the trial court erred in holding one. In the absence of an
"affirmative waiver" in the form of an express written or oral
statement, the Supreme Court of North Carolina correctly granted a
new trial. I would, therefore, affirm its decision.
The rule announced by the Court today allows a finding of waiver
based upon "infer[ence] from the actions and words of the person
interrogated."
Ante at
441 U. S. 373.
The Court thus shrouds in half-light the question of waiver,
allowing courts to construct inferences from ambiguous words and
gestures. But the very premise of
Miranda requires that
ambiguity be interpreted against the interrogator. That premise is
the
Page 441 U. S. 378
recognition of the "compulsion inherent in custodial"
interrogation, 384 U.S. at
384 U. S. 458, and of its purpose "to subjugate the
individual to the will of his examiner,"
id. at
384 U. S. 457.
Under such conditions, only the most explicit waivers of rights can
be considered knowingly and freely given.
The instant case presents a clear example of the need for an
express waiver requirement. As the Court acknowledges, there is a
disagreement over whether respondent was orally advised of his
rights at the time he made his statement.
* The fact that
Butler received a written copy of his rights is deemed by the Court
to be sufficient basis to resolve the disagreement. But,
unfortunately, there is also a dispute over whether Butler could
read.
See Tr. of Oral Arg 22, 23. And, obviously, if
Butler did not have his rights read to him, and could not read them
himself, there could be no basis upon which to conclude that he
knowingly waived them. Indeed, even if Butler could read, there is
no reason to believe that his oral statements, which followed a
refusal to sign a written waiver form, were intended to signify
relinquishment of his rights.
Faced with "actions and words" of uncertain meaning, some judges
may find waivers where none occurred. Others may fail to find them
where they did. In the former case, the
Page 441 U. S. 379
defendant's rights will have been violated; in the latter,
society's interest in effective law enforcement will have been
frustrated. A simple prophylactic rule requiring the police to
obtain an express waiver of the right to counsel before proceeding
with interrogation eliminates these difficulties. And since the
Court agrees that
Miranda requires the police to obtain
some kind of waiver -- whether express or implied -- the
requirement of an express waiver would impose no burden on the
police not imposed by the Court's interpretation. It would merely
make that burden explicit. Had Agent Martinez simply elicited a
clear answer from Willie Butler to the question, "Do you waive your
right to a lawyer?", this journey through three courts would not
have been necessary.
* The Court states that whether Butler was orally advised of his
rights at the time of the interrogation, or rather was orally
advised only at the scene of the arrest, is "not relevant to the
basic issue in this case."
Ante at
441 U. S. 371
n. 1. But the fact that Butler received oral warnings upon his
arrest in the Bronx does not establish that he understood that the
same rights applied to the interrogation conducted in New Rochelle.
This is particularly so since he was told at the latter that he did
not have to sign the "Advice of Rights" form, but that the agent
"would like for him to talk." 295 N.C. 250, 253,
244 S.E.2d
410, 412 (1978). Indeed, the Court does not argue that the
earlier oral recitation was sufficient, but rather cites in
addition Butler's receipt of the written "Advice of Rights" form.
However, if Butler could not read, oral warnings were the only ones
that mattered, and it thus becomes highly relevant whether he was
told of his rights at the time he was interrogated.