STATE OF ILLINOIS, PETITIONER V. LLOYD PERKINS
   No. 88-1972
   In the Supreme Court of the United States
   October Term, 1989
   On Writ Of Certiorari To The Appellate Court Of Illinois, Fifth
Judicial District
   Brief For The United States As Amicus Curiae Supporting Petitioner
            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      An undercover police officer need not administer
      Miranda warnings before eliciting incriminating
      statements from an incarcerated suspect
      A. There is no per se requirement to administer
         Miranda warnings before questioning an incarcerated
         inmate
      B. Miranda does not restrict an undercover agent's
         activities
   Conclusion
                          QUESTION PRESENTED
   Whether an undercover law enforcement officer must give Miranda
warnings to an incarcerated suspect before asking him questions that
may elicit an incriminating response.
                     INTEREST OF THE UNITED STATES
   This case presents the question whether law enforcement authorities
may use undercover officers to question the uncharged suspect of a
crime while he is incarcerated in a jail or prison.  The United States
has an interest in the Court's resolution of that question for several
reasons.  The federal government operates numerous jail and prison
facilities for persons who have been arrested for or convicted of a
crime.  The Court's decision in this case will therefore affect the
ability of the federal government to use this law enforcement tool.
The federal government also prosecutes cases referred from state or
local authorities.  The Court's decision will affect the federal
government's ability to prosecute such cases in which state undercover
agents have obtained admissions from incarcerated suspects.  Finally,
the federal government has an interest in the Court's interpretation
of the scope of Miranda v. Arizona, 384 U.S. 436 (1966), an issue that
is raised by this case.
                               STATEMENT
   1. On November 8, 1984, Richard Stephenson was shot and killed in
Fairview Heights, a suburb of East St. Louis, Illinois.  No one was
arrested for the homicide, and as of early 1986 the crime remained
unsolved.  In March of that year, Donald Charlton told police officers
that he had information concerning a homicide in the East St. Louis
area that had occurred about two years earlier.  Charlton, an inmate
at the Graham Correctional Facility in Hillsboro, Illinois, was
serving a six-year prison sentence for burglary.  He told police that
he had met respondent when they were imprisoned together at the Graham
facility, and that respondent had said he had murdered someone in East
St. Louis.  Although Charlton did not know the victim's name, the
facts Charlton related closely coincided with the facts known to the
officers about the murder of Richard Stephenson.  The police concluded
that only the perpetrator would know the facts of the murder in the
detail that Charlton related.  Pet App. 2a;  Tr. 3-6, 26, 57-60, 72;
4/11/86 Tr. 2-3.  /1/
   Following up on Charlton's leads, the officers learned that
respondent had recently been released from custody.  The officers then
decided to use Charlton as an informant to elicit information from
respondent.  The officers obtained a court order releasing Charlton
from the Graham facility on March 28, and they arranged to have
Charlton wear a body recording device when he met with respondent.
During the next three days, Charlton made several efforts to contact
respondent but was unable to reach him.  Tr. 7-8, 19, 21-22, 26-28,
61-62.
   On March 30, 1986, the officers learned that respondent was being
held in the Montgomery County, Illinois, jail pending trial for an
unrelated charge of aggravated battery.  The officers decided that it
would be impractical to use an eavesdropping device in respondent's
cell or a body recording device on an undercover officer.  The
officers decided, however, to place an undercover agent posing as an
escaped convict with respondent in the jail cellblock to seek to learn
whether respondent had committed the Stephenson murder.  Pet. App. 2a;
 Tr. 8-10, 28-30.
   The following day, John Parisi, the officer who was to serve as the
undercover agent in the jail, met with Charlton at the Fairview
Heights police station.  Parisi and Charlton were instructed to engage
respondent in conversation and to report anything that he said about
the Stephenson murder.  Their cover story would be that after escaping
from a Cook County, Illinois, work release program, Parisi and
Charlton made their way to Montgomery County in order to join
respondent so that all three could leave for California, but that they
were arrested in the course of a burglary.  That evening, Parisi, who
was using the alias "Vito Bianco," and Charlton were processed into
the jail and dressed in jail clothes.  They were then placed in the
cellblock, which consisted of 12 separate cells that opened into a
large room.  Pet. App. 2a-3a;  Tr. 10-13, 16-18, 35-40, 54-55, 63-65.
   After entering the cellblock, Charlton spoke with respondent
briefly and introduced him to Parisi.  Parisi told respondent that he
"wasn't going to do any more time," Tr. 41, and he suggested that all
three should escape from the jail.  Respondent replied that the
Montgomery County jail was "a rinky-dink jail" and that they could
"break out." Ibid.  He also said that he could arrange to have someone
smuggle in a gun, and the three of them decided to kill anyone who
tried to interfere with their escape.  Respondent then showed Agent
Parisi a hidden, makeshift crowbar that respondent said could be used
during their escape to take the jail guard hostage.  The three decided
to meet later that evening after the other inmates went to sleep.
Pet. App. 2a;  Tr. 40-43, 65-67.
   Agent Parisi, Charlton, and respondent met at midnight in
respondent's cell.  Respondent said that his girlfriend could smuggle
an automatic pistol into the jail on visiting day, April 1.  Tr.
43-45.  Charlton said, "'Hey, I'm not a murderer, I'm a burglar.
That's your guys' profession.'" Tr. 44;  see Tr. 67.  After telling
Charlton that he would be responsible for any murder that occurred,
Parisi asked respondent, "Have you ever done anybody(?)" Tr. 44.
Respondent said he had, and then recounted in detail the events of the
Stephenson murder for approximately 35 minutes.  Tr. 45-49.  /2/
Afterward, Parisi and respondent engaged in the "usual jailhouse talk"
while watching television for 15-20 minutes.  Respondent then went to
sleep on the floor outside his cell.  Parisi and Charlton did not
again speak to respondent.  Tr. 50, 70-71.  Parisi did not give
respondent Miranda warnings before speaking with him.  Pet. App.
3a-4a.
   On April 1, respondent was arrested and charged with the Stephenson
murder.  Respondent was given Miranda warnings, and he asked for a
lawyer.  Pet. App. 3a;  Tr. 14-16, 22-24, 32-33, 52, 56, 71.
   2. Before trial, respondent moved to suppress the statements made
to Agent Parisi in the Montgomery County jail.  Following an
evidentiary hearing, the trial court granted the motion to suppress.
The court ruled that Parisi and Charlton were "agents of the State and
had conducted questioning of the defendant concerning the alleged
offense while he was in custody and without advising him of his
rights" as required by Miranda.  Pet. App. 11a.
   3. On the State's appeal, the Appellate Court of Illinois, Fifth
Judicial District, affirmed.  Pet. App. 1a-9a.  Relying on Mathis v.
United States, 391 U.S. 1 (1968), the court held that respondent was
"in custody" for purposes of Miranda since he was incarcerated at the
time he was questioned, even though he was not being held on the
Stephenson murder charge.  Pet. App. 5a.  According to the court,
"Miranda applies even when the purpose of the custody is unrelated to
the purpose of the interrogation, as in the instant case." Ibid.
Moreover, the court ruled that Agent Parisi's questioning of
respondent amounted to an "interrogation" as this Court used the term
in Rhode Island v. Innis, 446 U.S. 291, 301 (1980).  Pet. App. 5a-6a.
The Illinois court explained that "the placement of Parisi in the
cellblock with (respondent), and Parisi's inquiry whether (respondent)
had ever 'done someone(,)' were words and actions reasonably likely to
elicit an incriminating response from (respondent)." Id. at 6a.
   The court rejected the State's argument that Miranda applies "only
in those situations where a figure of authority directly interrogates
the accused" and, accordingly, does not apply to questioning by an
undercover police officer.  Pet. App. 8a-9a.  "There is no authority
in these circumstances," the court stated, "for the police to do
indirectly what they may not do directly." Id. at 8a.  Underlying
Miranda, the court wrote, "is the conviction that a warning before
questioning is essential in overcoming the pressures of interrogation
and in aiding the truth-finding function." Ibid.  Allowing the use of
an undercover officer to elicit an incriminating statement from a
person in custody would encourage law enforcement personnel to use
"surrepitious tactics" to "subvert" a suspect's Fifth Amendment
privilege against compulsory self-incrimination, and "would render
(respondent's) fifth-amendment privilege wholly meaningless." Id. at
8a-9a.
   The Illinois Supreme Court denied the State leave to appeal.  Pet.
App. 10a.
                          SUMMARY OF ARGUMENT
   1. This Court's decision in Mathis v. United States, supra, does
not require the extraordinary procedure that all incarcerated suspects
receive Miranda warnings before speaking with an undercover officer.
Mathis did not involve the use of an undercover officer to talk with a
suspect in jail;  inasmuch as the latter practice does not raise the
same concerns that underlay the Court's decision in Miranda, the rules
adopted in that case should not apply in this quite different setting.
   The concept of "custodial interrogation" within the meaning of
Miranda is limited to settings in which police questioning creates the
type of coercion that can overcome a suspect's will to remain silent.
A prison inmate is not subject to the kinds of coercion associated
with "custodial interrogation" any time he is questioned by officials,
simply because he is not free to leave the prison;  it follows, a
fortiori, that a prison inmate is not subjected to "custodial
interrogation" when he is questioned by an undercover agent.  An
undercover agent's conversation with a suspect in jail will not be
seen by the suspect as coercive or threatening, since the suspect will
believe that he is speaking to a fellow inmate.  Deception 00  to
elicit information voluntarily provided is simply not coercion.
Accordingly, the use of an undercover agent to speak to a suspect in
jail does not trigger the procedures required in Miranda for
circumstances constituting "custodial interrogation."
   2. When it employs an undercover agent rather than a readily
identifiable police officer to speak with an incarcerated suspect, the
government is not doing indirectly what Miranda forbids it from doing
directly.  The purpose of the procedures adopted in Miranda was to
prevent law enforcement officers from using a coercive setting to
extract from a suspect a confession that he would not have given in an
unrestrained environment.  But an undercover agent does not coerce a
suspect into confessing;  the officer lulls a suspect into confessing
by taking advantage of the suspect's misplaced trust in a fellow
prisoner.  This Court held in Hoffa v. United States, 385 U.S. 293
(1966), that the use of an informant to obtain incriminating
statements from a suspect is not a form of coercion;  a decade later
the Court held in Oregon v. Mathiason, 429 U.S. 492 (1977), that
police deception does not itself render a setting coercive under
Miranda.  The use of undercover officers has long been accepted as a
legitimate investigative technique, and it is often the only means of
identifying a guilty party.  The rule adopted by the Illinois court in
this case effectively prevents the police from using that practice if
a suspect is incarcerated.  Such a rule would impose a costly burden
on law enforcement without measurably adding to the protection of a
suspect's legitimate Fifth Amendment interests.
                               ARGUMENT
   AN UNDERCOVER POLICE OFFICER NEED NOT ADMINISTER MIRANDA WARNINGS
BEFORE ELICITING INCRIMINATING STATEMENTS FROM AN INCARCERATED SUSPECT
   A. There Is No Per Se Requirement To Administer Miranda Warnings
Before Questioning An Incarcerated Inmate
   The Self-Incriminating Clause of the Fifth Amendment provides that
no person "shall be compelled in any criminal case to be a witness
against himself." As the text of the Clause indicates, "a necessary
element of compulsory self-incrimination is some kind of compulsion."
Hoffa v. United States, 385 U.S. 293, 304 (1966).  Accord United
States v. Washington, 431 U.S. 181, 187 (1977) ("Absent some
officially coerced self-accusation, the Fifth Amendment privilege is
not violated by even the most damning admissions.").  Furthermore, the
Clause is not self-executing;  a person against whom official
compulsion is directed must invoke the privilege in a timely manner or
forfeit its benefits, despite the fact that the requested disclosure
will prove incriminating.  Minnesota v. Murphy, 465 U.S. 420, 427-428
(1984) (collecting cases).
   Miranda created a limited exception to that rule for the unique
environment of police custodial interrogation.  In that context, the
Court excused a person's failure to invoke the privilege because the
Court believed that official interrogation of a suspect in a
police-dominated, custodial environment invariably generates
"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." 384 U.S. at 467.  To dissipate that
compulsion, Miranda regulated the conduct of police custodial
interrogation by devising prophylactic safeguards that are "not
themselves rights protected by the Constitution but (are) instead
measures to insure that the right against compulsory
self-incrimination (is) protected." Michigan v. Tucker, 417 U.S. 433,
444 (1974).
   Miranda involved custodial police questioning of individuals
suspected of criminal activity who were not otherwise confined.  A
prison inmate who is questioned without the imposition of any
additional restraints on his liberty is not in the same position for
purposes of Miranda as a suspect who was previously at liberty and is
taken into custody for the purpose of questioning.  The courts of
appeals have recognized that "(a) rational inmate will always
accurately perceive that his ultimate freedom of movement is
absolutely restrained and that he is never at liberty to leave an
interview conducted by prison or other government officials." United
States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985), cert. denied, 479
U.S. 830 (1986).  Thus, to apply the traditional standard for
determining whether an interviewee is in custody for purposes of
Miranda "would be tantamount to a per se finding of 'custody'" for
prison inmates.  Ibid.; see also Cervantes v. Walker, 589 F.2d 424,
427-428 (9th Cir. 1978) (application of the traditional "free to
leave" standard would "lead to the conclusion that all prison
questioning is custodial because a reasonable prisoner would always
believe he could not leave the prison freely," thus leading to "the
illogical position of providing greater protection to a prisoner than
to his nonimprisoned counterpart").
   A prison inmate, of course, cannot leave his surroundings and
therefore is literally "in custody" at all times.  But the restraints
on an inmate's liberty that are a constant feature of prison life
become familiar to the inmate and are therefore unlikely to have the
coercive effect that Miranda warnings are designed to dispel.  The
inherently coercive effects that Miranda found to be associated with
custodial interrogation arise in the prison context only if an
inmate's liberty is further limited, for purposes of the
interrogation, in a manner different from what the inmate experiences
as the standard condition of day-to-day prison life.  As the Ninth
Circuit has observed, "(i)n the prison situation, (the concept of
restricting the suspect's freedom) necessarily implies a change in the
surroundings of the prisoner which results in an added imposition on
his freedom of movement.  * * * (W)e look to some act which places
further limitations on the prisoner." Cervantes v. Walker, 589 F.2d at
428:  accord United States v. Cooper, 800 F.2d 412, 414-415 (4th Cir.
1986);  United States v. Conley, 779 F.2d at 972-974;  United States
v. Scalf, 725 F.2d 1272, 1275-1276 (10th Cir. 1984);  United States v.
Hayes, 646 F. Supp. 146, 149-151 (N.D. Ind. 1986).  For these reasons,
a prison inmate should be deemed to be in custody for purposes of
Miranda only if he is subjected to more than the usual restraint on
his liberty to depart.  Cervantes v. Walker, 589 F.2d at 428.  /3/
   We do not believe that a contrary result is required by this
Court's decision in Mathis v. United States, 391 U.S. 1 (1986).  In
Mathis, an inmate incarcerated in a state prison was interviewed by an
agent of the Internal Revenue Service about possible federal income
tax violations.  The agent did not administer Miranda warnings before
initiating the questioning.  This Court reversed the inmate's
subsequent conviction for filing false tax returns on the ground that
incriminating statements made in the course of the interview should
not have been admitted at trial.  The Court rejected the government's
argument that Miranda is applicable "only to questioning (of) one who
is 'in custody' in connection with the very case under investigation."
391 U.S. at 4-5.
   To be sure, the Court's brief opinion in Mathis can be read as
establishing a per se rule that an inmate who is subject to
questioning is automatically "in custody" and is therefore entitled to
Miranda warnings merely by virtue of his status as a prisoner.  We
believe, however, that Mathis is better understood as simply rejecting
the government's competing per se rule that Miranda should not be
applicable to an inmate who is in custody in connection with a case
other than the one under investigation.  Several courts of appeals
have interpreted Mathis in that fashion.  See United States v.
Willoughby, 860 F.2d 15, 23 (2d Cir. 1988) ("the mere fact of
imprisonment does not mean that all of a prisoner's conversations are
official interrogations that must be preceded by Miranda warnings"),
cert. denied, 109 S. Ct. 846 (1989);  Leviston v. Black, 843 F.2d 302,
304 (8th Cir.) ("incarceration does not ipso facto render an
interrogation custodial"), cert. denied, 109 S. Ct. 168 (1988);
United States v. Conley, 779 F.2d at 972;  Cervantes v. Walker, 589
F.2d at 427.  /4/ Under that interpretation, a prisoner is not put in
a better position than an ordinary citizen by being entitled to
Miranda warnings prior to questioning of any sort, regardless of the
setting.  On the other hand, the prisoner is not put in a worse
position than unincarcerated persons, since he is entitled to Miranda
warnings if the normal circumstances of his confinement are changed
for purposes of the interview in question.  /5/
   B. Miranda Does Not Restrict An Undercover Agent's Activities
   Even if Mathis is interpreted to require that formal questioning in
the prison setting always be preceded by Miranda warnings, that
principle should not be extended to communications between suspects
and undercover agents.  Conversations between a suspect and an
undercover agent bear no resemblance to the kind of custodial
interrogation that gave rise to the Court's Miranda decision, and the
principles of Miranda therefore cannot sensibly be applied in that
setting.
   A meeting between an undercover agent and a prisoner bears none of
the hallmarks of the coercive environment with which the Court in
Miranda was concerned.  In this case, for example, respondent would
not have assumed that "Vito Bianco" had any legal authority to
interrogate him or that he had any legal responsibility to answer,
that their conversations would continue until he confessed to
murdering Stephenson, or that his insistence on remaining silent might
lead to physical abuse.  To the contrary, respondent was free to
ignore Agent Parisi when they were introduced, to skip their midnight
meeting, or to leave it at any time.
   Respondent may have believed that it was necessary to recount the
details of the Stephenson murder in order to impress "Vito Bianco,"
and respondent probably felt secure that doing so was harmless,
because he and "Vito Bianco," in Charlton's words, were members of the
same "profession." Tr. 44.  But respondent certainly did not
incriminate himself because of any fear that "Vito Bianco" would see
to his imprisonment or would impose some form of extra-legal
punishment if he remained silent.  That fact is crucial because it was
the psychological technique of subtly instilling that fear in a
suspect in custody that Miranda sought to counteract through the
requirement of warnings.  Miranda was not even remotely concerned with
rescuing a suspect from foolhardy bravado.
   That the practice of using an undercover agent is designed to
elicit a confession from a suspect provides no ground for objection.
Miranda did not forbid the government from obtaining a confession to
prove a defendant's guilt.  In fact, Miranda emphasized that
"(c)onfessions remain a proper element in law enforcement.  Any
statement given freely and voluntarily without any compelling
influence is, of course, admissible in evidence." 384 U.S. at 478.  In
subsequent decisions, the Court has also refused to treat as a form of
"custodial interrogation" law enforcement practices that did not
offend the concerns underlying Miranda, even though in each case the
officers either believed or knew that the suspect might incriminate
himself.  See, e.g., Oregon v. Mathiason, 429 U.S. 492 (1977);
California v. Beheler, 463 U.S. 1121 (1983);  Minnesota v. Murphy,
supra;  Arizona v. Mauro, 481 U.S. 520 (1987).  The practice here
cannot be treated as the equivalent of a classic stationhouse
interrogation simply because both share the same goal or have similar
prospects of success.  It can be deemed custodial interrogation under
Miranda only if it creates the same coercive environment that Miranda
described.
   Only a readily indentifiable law enforcement officer can instill
such fear in a suspect.  As Professor Kamisar has written, a police
officer's actions "'take on color from (his) uniform, badge, gun and
demeanor.'" Kamisar, Brewer v. Williams, Massiah, and Miranda:  What
Is "Interrogation"?  When Does It Matter?, 67 Geo. L.J. 1, 67 (1978).
The threatening nature of the setting is important, because the
question whether a suspect has been subjected to a custodial
interrogation "focuses primarily upon the perceptions of the suspect,
rather than the intent of the police." Rhode Island v. Innis, 446 U.S.
291, 301 (1980).  /6/ Thus, if an officer "carries neither badge nor
gun and wears not 'police blue,' but the same prison gray" as the
suspect, Kamisar, 67 Geo. L.J. at 67, "the interplay of interrogation
and custody," Innis, 446 U.S. at 299, that troubled the Court in
Miranda is not present, because "the suspect thinks he is dealing only
with someone 'in the same boat,' as well as the same cell." Kamisar,
67 Geo. L.J. at 67.  As the Third Circuit has explained:
         (I)t is inconceivable that the defendant could have
      experienced the coercion-born type of fear and intimidation set
      forth in Miranda, because when he volunteered this incriminatory
      statement, he thought that he was conversing with a fellow
      partner in crime, not a policeman.  The predicate of Miranda is
      the inherently coercive nature of police interrogation of a
      person in custody;  it cannot have application to a situation
      where one, not under stress of interrogation, simply volunteers
      a statement which perchance turns out to be inculpatory.
   United States v. Fioravanti, 412 F.2d 407, 413-414, cert. denied,
396 U.S. 837 (1969) (footnote omitted).  See also United States v.
Willoughby, 860 F.2d at 23-24.  /7/
   It is wrong to contend that Miranda warnings are necessary to
create a "level playing field" because a suspect in jail is especially
vulnerable due to his confinement and therefore may unwisely utter
incriminating statements to other inmates who turn out to be
informants.  /8/ Although confinement generates anxiety, Innis
recognized that the anxiety caused by incarceration does not require
the suppression of a suspect's unwarned statements.  446 U.S. at 300;
see Kamisar, 67 Geo. L.J. at 61-62.  It is also irrelevant that an
inmate mistakenly believes that his cellmate is a fellow prisoner.
"This Court has never embraced the theory that a defendant's ignorance
of the full consequences of his decisions vitiates their
voluntariness." Oregon v. Elstad, 470 U.S. 298, 316 (1985).  See also
Beheler, 463 U.S. at 1125-1126 n.3.  The police do not violate Miranda
by listening to a suspect who voluntarily but unwittingly incriminates
himself by admitting conduct that he does not know to be criminal.
So, too, the police do not violate Miranda by listening to a suspect
who voluntarily but unwittingly incriminates himself by confessing
facts about a known crime to an unknown police officer.  Neither case
has the element of coercion that prompted the Court in Miranda to
scrutinize the process of incustody interrogation.
   In this case, the state appellate court was highly critical of
Agent Parisi's use of a ruse to hoodwink respondent into believing
that the agent was a fellow "ex-con" seeking to escape from jail.
That court believed that permitting law enforcement officers to act in
that manner would improperly allow "the police to do indirectly what
they may not do directly," to "subvert" Miranda, and to render "wholly
meaningless" a suspect's Fifth Amendment privilege.  Pet. App. 8a-9a.
A few other courts have endorsed that view as well.  /9/ That view,
however, fundamentally misconceives the concerns informing Miranda.
   In the undercover setting, the officer is not "using the coercive
nature of confinement to extract confessions that would not be given
in an unrestrained environment." Mauro, 481 U.S. at 530.  Rather, the
officer is taking advantage of the suspect's misplaced trust in a
fellow prisoner.  But there is nothing improper about requiring a
suspect to bear the risk of disloyalty.  It is well settled that a
person can be made to bear the risk that his acquaintances will reveal
his statements to a larger audience.  "The risk inheres in all
communications which are not in the sight of the law privileged,"
Lopez v. United States, 373 U.S. 427, 450 (1963) (Brennan, J.,
dissenting), and communications made during the course of a conspiracy
to break out of "a rinky-dink jail" and assault a prison guard in the
process do not fit into that category.
   Nothing in Miranda put an end to that police practice, even for a
suspect in custody.  "The sole concern of the Fifth Amendment, on
which Miranda was based, is governmental coercion." Colorado v.
Connelly, 479 U.S. 157, 170 (1986).  This Court's decision in Hoffa v.
United States, 385 U.S. 293 (1966), proves that the use of undercover
agents does not amount to coercion.  While Hoffa was on trial, he
frequently met with a labor official named Edward Partin who was under
indictment and who, unbeknownst to Hoffa, was cooperating with federal
law enforcement authorities.  During their conversations, Hoffa
revealed his attempts to bribe members of the jury, and Partin
recounted those statements at Hoffa's subsequent trial on jury
tampering charges.  385 U.S. at 294-299.  This Court rejected Hoffa's
contention that admission of Partin's testimony violated the Fifth
Amendment, holding that "no claim has been or could be made that
(Hoffa's) incriminating statements were the product of any sort of
coercion, legal or factual." Id. at 304.  The Court also found that
Hoffa's conversations with Partin were "wholly voluntary," even though
Partin had duped Hoffa into believing that he was a sympathetic
colleague.  Ibid.  See also Frazier v. Cupp, 394 U.S. 731, 739 (1969)
(rejecting the claim that the confession of a defendant in custody was
involuntary on the ground that he was falsely told that his
co-defendant had turned state's evidence);  Procunier v. Atchley, 400
U.S. 446, 453-454 (1971) (the use of an informant to obtain a
statement from a suspect in prison does not render his statement
involuntary);  Flittie v. Solem, 775 F.2d 933, 944-945 (8th Cir. 1985)
(en banc), cert. denied, 475 U.S. 1025 (1986) (same).
   This case is identical to Hoffa in that respect.  Neither Agent
Parisi nor Charlton intimidated or threatened respondent in any
manner.  Respondent voluntarily -- and without hesitation -- described
how he had murdered Stephenson.  The only difference between this case
and Hoffa is that respondent was incarcerated when he spoke to Agent
Parisi.  But while that fact bears on the question whether Agent
Parisi used the coercive nature of respondent's confinement to extract
a confession that he would not have made outside of jail, see Mauro,
481 U.S. at 530, it is entirely immaterial to the question whether the
use of an undercover agent to talk to a suspect renders any ensuing
confession involuntary.
   Hoffa stands for the proposition that the use of deception to
elicit a confession from a suspect does not violate the
Self-Incrimination Clause.  That decision is also a complete answer to
concerns voiced by the Illinois appellate court that the policies
underlying Miranda forbid the police from surreptitiously obtaining
incriminating statements from a suspect.
   Although Miranda was not applicable to Hoffa's case, the Court's
subsequent decision in Oregon v. Mathiason, supra, demonstrates that
Miranda does not require a different result.  Mathiason rejected the
claim that an officer's act of falsely telling a suspect that the
suspect's fingerprints had been found at the scene of a crime rendered
the interview custodial in nature.  "Whatever relevance this fact may
have to other issues in the case," the Court held, "it has nothing to
do with whether (Mathiason) was in custody for purposes of the Miranda
rule." 429 U.S. at 495-496.
   Respondent also can draw no support from the Court's Sixth
Amendment decisions in Massiah v. United States, 377 U.S. 201 (1964),
United States v. Henry, 447 U.S. 264 (1980), and Maine v. Moulton, 474
U.S. 159 (1985).  Those cases held that the government may not use an
undercover agent to elicit incriminating statements from a suspect
once he is charged with a crime.  After the initiation of formal
charges, the Sixth Amendment ensures that the accused may rely on
counsel as a medium between him and the State, and thus imposes on the
government the "affirmative obligation not to act in a manner that
circumvents the protections accorded the accused by invoking this
right." Moulton, 474 U.S. at 176.  The Court's decision in Miranda, by
contrast, did not impose any such obligation on the police, since it
did not forbid the police from attempting to obtain a suspect's
confession.  Miranda only limits an officer's opportunity to use a
coercive setting to "extract" a confession from a suspect.  Mauro, 481
U.S. at 530.  Because that does not occur in cases like this one, the
Miranda rules are inapplicable;  those rules do not apply "outside the
context of the inherently coercive custodial interrogations for which
(they were) designed." Roberts v. United States, 445 U.S. 552, 560
(1980).  See also Murphy, 465 U.S. at 430;  Mathiason, 429 U.S. at
495;  Beckwith v. United States, 425 U.S. 341 (1976).
   The rule adopted by the Illinois appellate court would not, of
course, mean that undercover officers would give suspects Miranda
warnings before engaging them in conversation;  no officer could
possibly do so while maintaining his cover.  Rather, the unavoidable
consequence of that rule would be that law enforcement authorities
would have to either release a suspect and then hope to find him (or
impose 24-hour surveillance on him) before pursuing their
investigation, or abandon the use of undercover agents to engage
incarcerated suspects in conversation.  /10/ The first approach poses
the risk that the suspect will flee or commit additional crimes while
at large.  The second approach needlessly hampers effective law
enforcement without protecting any legitimate constitutional interest.
   Undercover investigations are often vitally important in obtaining
proof of a suspect's guilt.  Accordingly, this Court has repeatedly
upheld the use of undercover operations and the deceit that
necessarily accompanies that practice.  /11/ In some cases, such as
this one, the use of an undercover agent is likely to be the only way
for the authorities to identify and prosecute the responsible party.
The costs imposed on law enforcement by the Illinois court's rule are
therefore quite high;  yet, the rule's benefits to Fifth Amendment
values are virtually nil.  Although the Court in Miranda believed that
the inherently coercive setting created by a classic police custodial
interrogation justified the regulation of that particular police
investigative practice, the use of an undercover agent simply does not
raise the same self-incrimination concerns.
                              CONCLUSION
   The judgment of the Appellate Court of Illinois, Fifth Judicial
District, should be reversed.
   Respectfully submitted.
   KENNETH W. STARR
      Solicitor General
   EDWARD S.G. DENNIS, JR.
      Assistant Attorney General
   WILLIAM C. BRYSON
      Deputy Solicitor General
   PAUL J. LARKIN, JR.
      Assistant to the Solicitor General
   NOVEMBER 1989
   /1/ "Tr." refers to the transcript of the February 18, 1987,
suppression hearing.  The hearing on April 11, 1986, was a preliminary
hearing.
   /2/ Respondent said that he was paid $5,000 for the "job" by a man
who wanted Stephenson maimed because Stephenson owed the man money for
narcotics and was having an affair with the man's wife.  Respondent
explained that he had "cased" Stephenson's house for about a week
before the murder.  On the day of the murder, respondent approached
Stepehenson's house at 8:30 p.m. wearing a trench coat to conceal a
sawed-off .12 gauge shotgun.  Stephenson met respondent at the door to
his home, and he asked respondent to step into the garage.  As the
garage door opened, respondent asked the victim if his name was
"Steve," and he then shot Stephenson in the right leg.  Respondent was
about to shoot Stephenson again, but he decided not to do so because
he heard several dogs barking in the garage.  The shotgun blast
severed Stephenson's femoral artery, and he bled to death in 30
seconds.  Respondent then ran back to the car and drove away with his
two confederates.  Tr. 45-49, 68-70;  4/11/86 Tr. 5.
   /3/ Aside from the effect that a per se rule requiring Miranda
warnings would have on cases like this one, that rule would disrupt
the ability of prison administrators to conduct informal questioning
of an inmate about, for example, a prison disturbance.  Yet, Miranda
said that it was "not intended to hamper the traditional function of
police officers in investigating crime" and that "(g)eneral
on-the-scene questioning as to facts surrounding a crime or other
general questioning of citizens in the fact-finding process is not
affected by (the Court's) holding." 384 U.S. at 477.  To define all
questioning in the prison setting as "custodial interrogation" for
purposes of Miranda would deprive law enforcement officers and prison
administrators of their ability to conduct such informal questioning
free of the constraints of Miranda procedures.
   /4/ Most state courts that have addressed the issue have reached
the same conclusion.  See State v. Fulminante, 778 P.2d 602, 607
(Ariz. 1989);  People v. Williams, 44 Cal. 3d 1127, 1141-1142, 751
P.2d 901, 910-911, 245 Cal. Rptr. 635, 644-645, cert. denied, 109 S.
Ct. 514 (1988);  People v. Aalbu, 696 P.2d 796 (Colo. 1985);  Boutwell
v. State, 256 Ga. 63, 344 S.E.2d 222 (1986);  State v. McDonald, 387
So. 2d 1116, 1120 (La.), cert. denied, 449 U.S. 957 (1980);  Hamilton
v. State, 62 Md. App. 603, 609-617, 490 A.2d 763, 766-770, cert.
denied, 303 Md. 682, 496 A.2d 682 (1985);  People v. Smith, 117 Misc.
2d 737, 739-740, 459 N.Y.S.2d 528, 532 (Sup. Ct. 1983);  Ohio v.
Swinney, No. 87 CA 41 (1989 WESTLAW 86260) (Ohio App. July 15, 1989);
Blain v. Commonwealth, 7 Va. App. 10, 13-15, 371 S.E.2d 838, 840-841
(1988).  Contra State v. Perkins, 753 S.W.2d 567, 570-573 (Mo. Ct.
App. 1988);  State v. Fuller, 204 Neb. 196, 281 N.W.2d 749 (1979);
Holyfield v. State, 101 Nev. 793, 801-802, 711 P.2d 834, 839-841
(1985);  Commonwealth v. Chacko, 500 Pa. 571, 577-578, 459 A.2d 311,
314-315 (1983);  State v. Travis, 116 R.I. 678, 681-683, 360 A.2d 548,
550-551 (1976);  State v. LaRue, 19 Wash. App. 841, 845-846, 578 P.2d
66, 69 (1978).
   /5/ Formal investigative questioning of an inmate typically results
in a change in the normal circumstances of the inmate's confinement
that may justify a finding that the inmate was in custody for Miranda
purposes.  That was the case in Mathis, and it was also the case in
several of the court of appeals cases that have held Miranda
applicable to interrogation of a prison inmate.  See Battie v.
Estelle, 655 F.2d 692, 699 (5th Cir. 1981) (defendant awaiting trial
in county jail was entitled to Miranda warnings when he was examined
by a court-appointed psychologist);  Palmigiano v. Baxter, 510 F.2d
534, 536-537 (1st Cir. 1974), rev'd on other grounds, 425 U.S. 308
(1976) (Miranda warnings required when incarcerated suspect was
interviewed in connection with prison disciplinary proceeding);  see
also Estelle v. Smith, 451 U.S. 454, 466-469 (1981) (warnings must
precede court-ordered psychiatric examination of prisoner).
   /6/ See also Berkemer v. McCarty, 468 U.S. 420, 442 (1984) ("A
policeman's unarticulated plan has no bearing on the question whether
a suspect was 'in custody' at a particular time;  the only relevant
inquiry is how a reasonable man in the suspect's position would have
understood his situation.")
   /7/ As Professor Kamisar has noted, 67 Geo. L.J. at 65 (footnotes
omitted):
         When a suspect is arrested and brought downtown for police
      questioning, at least in the case of a major felony, he will
      often be in "a crisis-laden situation.  The stakes for him are
      high -- often his freedom for a few or many years -- and his
      prospects hinge on decisions that must be quickly made:  to
      cooperate and hope for leniency, to try and talk his way out, to
      stand adamantly on his rights." But why, when he thinks he is
      merely conversing with a fellow prisoner, when he has no notion
      that he is confronting the police, would a suspect worry about
      "how much leniency cooperation may earn, how likely fast talk is
      to succeed, and how much a steadfast refusal to talk may
      contribute to a decision by the police, prosecutor or judge to
      'throw the book' at him"?
         One can deliberately elicit incriminating statements from a
      person without having him realize it -- that is what happened in
      Massiah.  But how can one envelop someone in a "police-dominated
      atmosphere" without having him realize it?  How can one produce
      an "interrogation environment" well-calculated to "subjugate the
      individual to the will of his examiner" when the individual is
      not even aware that he is in the presence of "his examiner"?
      That is why, I submit, whatever may lurk in the heart or mind of
      the fellow prisoner (or apparent friend or colleague), if it is
      not "custodial police interrogation in the eye of the beholder,
      then it is not such interrogation within the meaning of Miranda.
   /8/ See Dix, Undercover Investigations and Police Rulemaking, 53
Tex. L. Rev. 203, 230 (1975);  White, Police Trickery in Inducing
Confessions, 127 U. Pa. L. Rev. 581, 604-605 (1979).
   /9/ See United States v. Brown, 466 F.2d 493 (10th Cir. 1972);
State v. Perkins, 753 S.W.2d at 570-571;  State v. McMullan, 713
S.W.2d 881 (Mo. Ct. App. 1986);  Holyfield v. State, 101 Nev. at
801-804, 711 P.2d at 839-841;  State v. Travis, 116 R.I. at 681-683,
360 A.2d at 550-551.  Contra United States v. Willoughby, 860 F.2d at
23-24;  Hamilton v. State, 62 Md. App. at 611-616, 490 A.2d at
767-770.  Cf. United States v. Fioravanti, 412 F.2d at 413-414.
   /10/ That may not be all that the Illinois appellate court sought
to prohibit.  It criticized not only "(Agent) Parisi's inquiry whether
(respondent) had ever 'done someone,'" but also "the placement of
(Agent) Parisi in the cellblock with (respondent)," Pet. App. 6a.
That court may have intended to suggest that the latter technique
alone constitutes a custodial interrogation under Miranda.  If so,
that suggestion is clearly in error under Rhode Island v. Innis,
supra, because placing Agent Parisi in respondent's cellblock was no
more a custodial interrogation than was placing Innis in the police
squad car.  Cf. Kuhlmann v. Wilson, 477 U.S. 436, 458-459 (1986)
(holding that the use of a jailhouse informant to listen to, but not
question, the defendant does not violate the Sixth Amendment;  "the
defendant must demonstrate that the police and their informant took
some action, beyond mere listening, that was designed deliberately to
elicit incriminating remarks").
   /11/ See, e.g., Grimm v. United States, 156 U.S. 604, 610-611
(1895);  Price v. United States, 165 U.S. 311, 315 (1897);  Casey v.
United States, 276 U.S. 413, 418-420 (1928);  Lopez v. United States,
supra;  Lewis v. United States, 385 U.S. 206 (1966);  Hoffa v. United
States, supra;  United States v. White, 401 U.S. 745 (1971);  United
States v. Russell, 411 U.S. 423 (1973);  Hampton v. United States, 425
U.S. 484 (1976).