STATE OF MINNESOTA, PETITIONER V. MARSHALL DONALD MURPHY

   No. 82-827

   In the Supreme Court of the United States

   October Term, 1982

   On Writ of Certiorari to the Minnesota Supreme Court

   Brief for the United States as Amicus Curiae Supporting Reversal

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      The Self-Incrimination Clause does not prohibit
      the State from using respondent's statements
      against him in a criminal prosecution
      A. Respondent was not compelled to answer his
          probation officer's questions
      B. Even if respondent's probation conditions
          amounted to the kind of pressure that would
          constitute coercion in other circumstances, they
          do not give rise to impermissible compulsion
          here because they are integral aspects of the
          sentence of probation that the State lawfully
          imposed
   Conclusion

                          QUESTION PRESENTED

   Whether the Fifth Amendment prohibits the use in a criminal
prosecution of incriminating statements made by the defendant to his
probation officer during the course of non-custodial questioning,
because the probation officer did not first warn the defendant of his
right not to incriminate himself.

                     INTEREST OF THE UNITED STATES

   The issue in this case is whether statements made by a probationer
to his probation officer during non-custodial questioning may be used
in a criminal prosecution of the probationer, when the officer did not
warn the probationer of his privilege against self-incrimination
before questioning him.  The resolution of the question whether such a
warning is required will significantly affect the relationship between
federal probation officers and the probationers and parolees they
supervise.  The Court's analysis of the issues presented by this case
may also affect the ability of federal law enforcement officers to
question suspects in many other contexts.

                               STATEMENT

   1. In 1980, respondent was charged with criminal sexual conduct and
pled guilty to the lesser included offense of false imprisonment.  He
was sentenced to 15 months' imprisonment, but the execution of that
sentence was suspended and he was placed on probation for three years.
 Pet. App. A2, B2-B3.

   The terms of respondent's probation required him, among other
things, to report to his probation officer "as directed";  to attend a
treatment program for sex offenders;  to obey the law;  and to "(b)e
truthful to your Probation Officer in all matters." Pet. App. C32;
see id. at A2, B3.  Except for the provision concerning the treatment
program, all of these are standard conditions of probation.  Id. at
B3, C4.  A probationer who violates any condition may have his
probation revoked and his sentence executed.  Id. at C32.

   In October 1980, respondent began a series of regular monthly
meetings with probation officer Widseth.  These meetings were held in
Widseth's office.  Pet. App. A2, C4-C5.  The understanding between
Widseth and respondent was that respondent would call her each month
to schedule an appointment, and respondent did so, "on his own
initiative" (id. at C13).  Widseth described these meetings as
follows:  "We would discuss any changes that had occurred in his
situation, his life situation, since I had last met with him, (and)
his progress (in the treatment program) * * * .  He discussed his
employment quite often, many problems that arose with that, or with
personal relationships." Id. at C6.  At the same time, respondent was
attending the treatment program at an institution called Alpha House.
Id. at C4-C5.

   In July 1981, Alpha House informed Widseth that respondent had
stopped participating in the program.  Widseth then wrote to
respondent, saying:  "In view of your recent Alpha House attendance
difficulties, I am requesting that you contact me immediately.
Failure to do so will result in an immediate request for a warrant."
Pet. App. A2, B3, C7, C35.  This was the first occasion on which
Widseth had written a letter asking respondent to contact her.  Id. at
C14.

   Respondent scheduled a meeting for one week later, and he and
Widseth discussed his failure to participate in the program.  After
hearing respondent's explanation, Widseth decided that because
respondent was doing well in other respects, she would not require him
to continue attending the treatment program.  Pet. App. B3, C8, C14.
Widseth had the authority, however, to require respondent to resume
treatment.  Id. at B3.

   Respondent's next regular appointment with Widseth, on September
11, was again scheduled at respondent's instance.  Pet. App. B4, C14.
After this meeting, respondent "was under no obligation to arrange
another meeting with his probation officer until mid-October" (id. at
B4).  But on September 22, an Alpha House counselor told Widseth that
during the treatment program respondent said that he had once
committed a rape-murder for which he was not charged.  Without
contacting the police, Widseth wrote to respondent:  "To further
discuss a treatment plan for the remainder of your probation, I am
requesting that you contact me upon your receipt of this letter to set
an appointment." Id. at A3, B4, C20, C36.

   Respondent contacted Widseth and met her in her office on September
28.  At that meeting, Widseth told respondent what she had learned
from Alpha House and said that she now thought respondent would need
further treatment.  Pet. App. A3, B4.  Widseth testified, and
respondent confirmed her account, that she "expressed concerns to
(respondent) that with the new information that I had received that
his actions in the false imprisonment case and actions in the rape and
murder that he had admitted to were strongly related behaviorally and
that that needed to be dealt with (by) continued treatment." Id. at
C9;  see id. at C27.

   Respondent reacted to Widseth's revelation of what she had learned
from Alpha House by becoming "angry because he thought that everything
he said in treatment was confidential." Pet. App. B5.  Respondent
"stated that he felt his confidences had been breached by the
disclosure and that he felt like calling an attorney." Id. at A3.
Widseth replied that respondent "would have to deal with" calling an
attorney "outside of the office" (id. at C16) because her concern was
the relationship between the two offenses and respondent's need for
further treatment.  Id. at A3-A4, C16-C17.

   Respondent's reaction to Widseth's emphasis on the relationship
between the two offenses was to deny that he was guilty of the false
imprisonment.  Widseth confronted respondent with the evidence of his
guilt of that offense.  At some point, respondent began to discuss the
rape-murder, explaining that it was unrelated to the false
imprisonment because it was caused by a habit of using drugs that he
had since broken.  In the course of explaining the rape-murder,
respondent described it in detail.  Pet. App. A4, B5, C10-C11,
C17-C18.  Widseth testified that although respondent was calm during
most of the conversation, he began crying toward the end and said that
"he felt he had committed the ultimate sin" (id. at C11).  Widseth
also testified that the door to her office was open throughout the
conversation and that respondent had been free to leave;  respondent
testified that he believed that if he had left the office he would
have violated the conditions of his probation.  Id. at C19-C20, C26.

   At the end of the conversation, Widseth told respondent that she
was obligated to report what she had learned to the police.  Pet. App.
B5.  Respondent replied that he understood that this was her
obligation and "that he thought (Widseth) must really care about him
to have him come in and talk about this because (she) could have just
picked up the phone and started dialing the police" (id. at C19, C21).
 But respondent also remarked that the only evidence against him
"would just be (Widseth's) word" unless he confessed to the police
(id. at C22).  Widseth allowed respondent to leave her office,
although she encouraged him to turn himself in to the authorities.  A
warrant was issued for his arrest several days later.  Id. at A4-A5,
C18-C19.

   2. Respondent was indicted for first degree murder, and he moved to
suppress the statements he had made to Widseth.  After a hearing the
trial court denied the motion.  Pet. App. B2, B15, B17.  It first
ruled that because "the setting of the interview was not custodial"
(id. at B6), the fact that no Miranda warnings were given did not
require the suppression of respondent's statements.  Miranda v.
Arizona, 384 U.S. 436 (1966).  In reaching this conclusion, the trial
court relied on Oregon v. Mathiason, 429 U.S.. 492 (1977), and noted
that while respondent was required to meet with Widseth periodically,
"(h)e * * * was responsible for setting up the time" and "(t)he office
was a place where he had been at least twelve times during the
previous year." Pet. App. B11.  Moreover, the court noted, respondent
"came in on his own (and) he left on his own." Ibid.

   The trial court also held that respondent's statements were
voluntary.  In this connection, the court found that respondent's
reference to calling an attorney related only to his concern about
Alpha House's supposed breach of confidentiality;  the court
specifically found that respondent "did not express th(e) desire (for
an attorney) in any context other than a civil suit for the breach of
confidentiality." Pet. App. B13-B14.  The court also noted several
factors suggesting that respondent's statements were voluntary.
Widseth was familiar with him, as was the setting;  he had chosen the
time for the appointment;  he was "29 years old, a high school
graduate, * * * (with no) mental deficiencies";  and he "had been
previously convicted of other felonies and was familiar with the
criminal justice system." Id. at B13.  Moreover, when Widseth opened
the interview by relating to respondent the information she had
learned from Alpha House, respondent "was angry" but only "at his
confidences being disclosed," and he "talked with (Widseth) freely."
Ibid.  /1/

   3. A divided Minnesota Supreme Court reversed, finding that
although the questioning of respondent was not custodial
interrogation, the conditions of his probation generated sufficient
legal and psychological pressure to respond to Widseth's questions
that in the absence of appropriate warnings, respondent's statements
should be considered to have been compelled.

                          SUMMARY OF ARGUMENT

   A. The Self-Incrimination Clause, on which the decision below
rests, applies only to compelled statements.  The court apparently
believed that respondent's statements were compelled by "psychological
pressure" (Pet. App. A8), but the Fifth Amendment does not preclude
the use of any statement resulting from some degree of psychological
pressure.  The Minnesota Supreme Court did not hold, and could not
have held, that respondent was compelled to make incriminating
statements to Widseth in the traditional sense that his will was
overborne.  Moreover, it correctly recognized that because respondent
was not in custody, the prophylactic rule of Miranda v. Arizona, 384
U.S. 436 (1966), did not apply to his statements.

   Instead, the court apparently concluded that three circumstances
combined to compel respondent to speak:  his probation conditions
placed him under some obligation to meet Widseth;  they required him
to be truthful with Widseth;  and Widseth was questioning him about
suspected criminal activity.  But these circumstances, separately or
together, do not create a compulsion to speak.

   The obligation to meet periodically with a probation officer is in
no way comparable to the kind of custodial pressures that can (as the
Court held in Miranda) compel a person to speak.  Unlike a person who
is arrested, respondent was not placed under sudden physical restraint
at a time and place chosen by an officer;  he responded to a letter by
making an appointment at his convenience.  Moreover, respondent was
not "thrust into an unfamiliar atmosphere * * * created to subjugate
the individual to the will of his examiner" (Miranda, 384 U.S. at
457);  he had met with Widseth in her office a dozen times.
Respondent also was never under physical restraint.  The most he
asserted is that he believed he would violate his probation conditions
if he left Widseth's office, and it is far from clear that even this
belief was well founded, especially when respondent did not even ask
Widseth if he could leave.

   The probation condition requiring respondent to be truthful with
Widseth did not on its face require him to answer any questions.
Presumably respondent was under a general duty to cooperate with
Widseth so that she could effectively supervise his probation, but
such a general duty would not compel him to answer any particular
question or line of questions, at least until Widseth informed him
that he was being uncooperative in a way that violated the conditions
of his probation.  Moreover, respondent was free to seek clarification
if he was in doubt about the extent to which his probation conditions
required him to respond to Widseth's questions, but he did not do so.
Had respondent refused to speak to Widseth about the rape-murder and
subsequently been suject to probation revocation for such a refusal,
there might be a colorable basis to his self-incrimination claim, but
there is none in this context.

   Even if respondent's probation conditions are understood to require
him to answer each of Widseth's questions, respondent still had the
opportunity to invoke the privilege against self-incrimination.  This
Court has repeatedly held that a person to whom questions are posed by
the authorities ordinarily must invoke the privilege, instead of
answering, or his answers will not be considered to have been
compelled.  Respondent could at least have attempted to assert the
privilege to Widseth without any risk whatever.

   This Court's decisions plainly preclude the Minnesota Supreme
Court's suggestion that Widseth placed respondent under compulsion by
revealing, with her questions, that she suspected him of a crime.
E.g., Oregon v. Mathiason, 429 U.S. 492 (1977);  Beckwith v. United
States, 425 U.S. 341 (1976).  Nor is it significant that respondent
may have had a relationship of trust and confidence with Widseth.
Respondent's statements unquestionably would not have been compelled
if they had been made to an informer in whom he had absolute trust,
and who he believed had no connection with the authorities;  by
contrast, respondent knew that Widseth was a law enforcement officer,
and he had no reason to assume that she would not disclose to the
police any information he gave her.

   B. Even if it were concluded that the three circumstances
identified by the Minnesota Supreme Court constituted the kind of
pressure that would render statements compelled in other contexts, the
special circumstances of the probation context dictate a different
result.  When a person has been convicted of a crime, his
constitutional rights can be limited to the extent reasonably
necessary to accommodate the government's penal and rehabilitative
interests.  The three circumstances that were held to create a
compulsion to speak are indispensable to a workable probation system.

   Probation cannot operate effectively unless the probationers can be
required to report to his supervising officer and cooperate to the
degree necessary to permit adequate supervision.  Moreover, the
probation officer must be free to inquire into whether the probationer
has committed another crime.  Frequently, for example, the probation
officer will receive information suggesting that the probationer has
committed, or is planning, another crime during the probation period;
the officer would be derelict in his duty if he did not investigate
further to determine whether the probation had failed.

   Requiring probation officers to give a warning before asking about
possible criminal activity would significantly interfere with the
probation relationship.  It would go far beyond dispelling any
coercion;  it would put probationers on their guard, make those
inclined to cooperate with their probation officers less willing to do
so, and disrupt a relationship that is central to the rehabilitative
process.

                               ARGUMENT

 THE SELF-INCRIMINATION CLAUSE DOES NOT PROHIBIT THE STATE FROM USING
RESPONDENT'S STATEMENTS AGAINST HIM IN A CRIMINAL PROSECUTION

 A. Respondent Was Not Compelled to Answer His Probation Officer's
Questions

   1. Preliminarily, we note that the Minnesota Supreme Court cast its
ruling in part in terms of due process (Pet. App. A10).  It seems
clear, however, that the court's reference to due process adds nothing
to its ruling under the Self-Incrimination Clause.  See United States
v. Washingtion, 431 U.S. 181, 190 n.6 (1977).  The conclusion to the
majority's opinion (Pet. App. A11) makes it entirely clear that the
court did not find Widseth's actions to be fundamentally unfair or
shocking to its conscience.  /2/ Rather, the court observed that its
invocation of due process was merely a way of "(s)tat(ing)
differently" its conclusion that the prohibition against compelled
self-incrimination barred the use of respondent's statements (id. at
A10).  The court did not suggest that the warning it required would
serve any purpose other than to prevent a person from unwittingly
incriminating himself, and the Due Process Clause provides no greater
protection against compelled self-accusation than the
Self-Incrimination Clause.  See Michigan v. Tucker, 417 U.S. 433, 442
(1974);  Miranda v. Arizona, 384 U.S. 436, 511-512 & n.8 (1966)
(Harlan, J., dissenting).

   2. The Self-Incrimination Clause prohibits the use of compelled
statements.  "The Amendment speaks of compulsion.  It does not
preclude a witness from (making statements) voluntarily in matters
which may incriminate him." United States v. Monia, 317 U.S. 424, 427
(1943).  "Absent some officially coerced self-accusation, the Fifth
Amendment privilege is not violated by even the most damning
admissions." Washington, 431 U.S. at 187.  See also Miranda, 384 U.S.
at 478.  The Minnesota Supreme Court appears to have concluded that
"psychological pressure" (Pet. App. A8) compelled respondent to speak,
but "pressure" and "compulsion" cannot be automatically equated in
constitutional analysis.

   a. The Fifth Amendment's prohibition of compelled
self-incrimination cannot, of course, be read to extend to all
official actions that cause a person to feel under some pressure to
speak.  /3/ "The Constitution does not prohibit every element which
influences a criminal suspect to make incriminating admissions."
Washingtion, 431 U.S. at 187.  The mere fact that a question was asked
by a law enforcement officer will cause most people to feel some
degree of what might be characterized as psychological pressure to
give an answer.  See Oregon v. Mathiason, 429 U.S. 492, 495 (1977);
Schneckloth v. Bustamonte, 412 U.S. 218, 224 (1973).  But it is
entirely clear that the police may generally engage in non-custodial
questioning of suspects without giving warnings, and that the answers
they obtain are admissible.  See Washingtion, 431 U.S. at 187-188 (law
enforcement officials do not compel a statement if they create "an
atmosphere conducive to truthtelling" in which a person "is more
likely to tell the truth");  Mathiason, 429 U.S. at 495 ("Any
interview of one suspected of a crime by a police officer will have
coercive aspects to it, simply by virtue of the fact that the police
officer is part of a law enforcement system which may ultimately cause
the suspect to be charged with a crime.  But police officers are not
required to administer Miranda warnings to everyone whom they
question.");  Beckwith v. United States, 425 U.S. 341(1976);  Miranda,
384 U.S. at 477-478.

   Moreover, a variety of emotional or psychological needs may impel a
person to admit that he has done wrong or to discuss acts that he
believes to have been wrong.  This is a common reason for making
incriminating statements;  a confession that is not the product of a
calm calculation of self-interest is likely to be the result of such
emotional or psychological impulses.  /4/ While difficult issues might
arise if a law enforcement officer preyed on a suspect's particular
psychological weakness, a statement is not compelled merely because an
official's show of authority, together with his questions, triggered
the emotional impulse to speak;  otherwise, the products of obviously
non-coercive police questioning would be excluded from evidence.
Similarly, if a suspect is subconsciously seeking a sympathetic
audience, there is no meaningful sense in which an official "compels"
him to speak by merely asking questions in an unintimidating way and
assuring the suspect -- perhaps truthfully -- that he has some
understanding of the suspect's plight and that the suspect may obtain
some emotional satisfaction by speaking freely.  /5/ In such a
situation, it is still "an independent decision on his part (that)
cause(s) the defendant to speak" (Miranda, 384 U.S. at 465).

   b. The test for determining if a statement has been compelled is
thus not whether it is in some sense the product of psychological
pressure, but "whether, considering the totality of the circumstances,
the free will of the (speaker) was overborne." Washington, 431 U.S. at
188, citing Rogers v. Richmond, 365 U.S. 534, 544 (1961).  But the
Minnesota Supreme Court did not suggest that respondent's statements
were compelled in this sense;  respondent's interview with Widseth was
not remotely comparable to the prolonged, coercive interrogations of
vulnerable suspects that this Court has found to create a compulsion
to speak.  /6/

   In Miranda, the Court held that statements that were not compelled
in this sense would nonetheless be inadmissible if they were obtained
by "custodial interrogation" of a defendant who had not been warned of
his right to remain silent and his right to have an attorney present.
384 U.S. at 444.  The Court reasoned that a custodial setting "carries
its own badge of intimidation" (id. at 457) because "(a)n individual
swept from familiar surroundings into police custody, surrounded by
antagonistic forces, and subjected to "manipulative and intimidating)
techniques of persuasion * * * cannot be otherwise than under
compulsion to speak" (id. at 461).  The Court accordingly determined
that "without proper safeguards the process of in-custody
interrogation * * * 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" (id. at 467).

   But the Minnesota Supreme Court did not hold, and could not have
held, that Miranda itself required the suppression of respondent's
statements to Widseth.  Miranda applies only to "a defendant
questioned while in custody or otherwise deprived of his freedom of
action in a( ) significant way." 384 U.S. at 445.  Miranda warnings
are needed "to dispel the compulsion inherent in custodial
surroundings" (id. at 458;  emphasis added).  The trial court ruled
that "the setting of the interview" between respondent and Widseth
"was not custodial" (Pet. App. B6), and the Minnesota Supreme Court
agreed that respondent "was not in custody in the usual sense" (id. at
A9).

   In Oregon v. Mathiason, this Court held that a parolee under
supervision, who reported to a police station in response to a police
officer's request and was told that he was not under arrest, was not
in custody within the meaning of Miranda.  See 429 U.S. at 495
("Miranda warnings are required only where there has been such a
restriction on a person's freedom as to render him 'in custody.' It
was that sort of coercive environment to which Miranda by its terms
was made applicable, and to which it is limited.").  Respondent's
situation was not materially different from that of the parolee in
Mathiason;  respondent came by himself in response to a request from
Widseth, and he clearly was not placed under arrest at any point.
Indeed, the conversation between Widseth and respondent -- Widseth's
urging respondent to turn himself in, and respondent's thanking
Widseth for not notifying the police at once -- demonstrates that it
was well understood that respondent was not under arrest.

   3. Even though respondent's will was not overborne and he was not
placed in a custodial setting that required Miranda warnings, the
Minnesota Supreme Court determined that the psychological pressures to
which respondent was exposed constituted sufficient compulsion to
render respondent's statements inadmissible.  The court apparently
believed that three circumstances created this compulsion (see Pet.
App. A10):  respondent's probation conditions placed him under some
obligation to meet with his probation officer;  respondent's probation
was conditioned on his being truthful with the probation officer;  and
the officer was questioning him about possible criminal activity.  /7/

   While there were, of course, certain compulsory aspects of
respondent's relationship with Widseth, the Minnesota Supreme Court
failed to explain why these features created an unacceptable
"compulsion to speak" (Miranda, 384 U.S. at 461;  emphasis added).
None of the decisions it cited supports its holding, /8/ which is
flatly inconsistent with the decisions of several federal courts.  /9/
We submit that there is no basis for concluding that the three
circumstances mentioned by the court gave rise to compulsion within
the meaning of the Self-Incrimination Clause.

   a. In concluding that "the compulsory nature of the meeting"
between respondent and Widseth contributed to the compulsion to speak,
the Minnesota Supreme Court, while acknowledging that respondent was
not in custody within the meaning of Miranda, relied on Miranda by
analogy.  See Pet. App. A8-A10.  Miranda, of course, did not hold that
even custodial interrogation invariably compels a suspect to speak;
Miranda only specified "prophylactic standards" designed "to safeguard
(the) privilege" against self-incrimination in a custodial setting.
Michigan v. Tucker, supra, 417 U.S. at 446.  More important, however,
this case presents none of the characteristics of custodial
interrogation that the Miranda Court found inherently likely to create
a compulsion to speak.

   For example, the court below stated that respondent met with
Widseth "under legal compulsion" because "it had been made clear to
him in the past that it was a condition of his probation that he meet
with the agent when requested." Pet. App. A10.  But there is a great
difference between the diffuse compulsion to meet regularly with a
probation officer and the intense custodial presence that, Miranda
found, was likely to intimidate a person into speaking when he would
rather remain silent.

   Respondent was not "swept from familiar surroundings into police
custody" by a forcible arrest (Miranda, supra, 384 U.S. at 461);  he
made an appointment at a mutually convenient time, and there is no
reason to doubt that Widseth would have permitted him to reschedule
the appointment if he had a legitimate reason for doing so.  By
contrast, a suspect who is arrested is often physically forced to
submit to an officer at the time and place chosen by the officer,
without any opportunity for prior consultation with counsel or
friends, and thereafter remains under the officer's control;  for this
reason, the Miranda Court was concerned that an arrest may convey to
the suspect the message that he has no choice but to submit to the
officer's will in other respects as well.  See, e.g., 384 U.S. at
456-457.  Respondent was subjected to no such compulsion;  while he
presumably knew that he was expected to answer Widseth's letter, the
psychological impact of the letter on respondent obviously cannot be
compared to the effect of an arrest in its tendency to cause an
individual to believe that he has no choice but to submit to the
officer.  /10/ Indeed, respondent was subject to less intimidating
pressure than a person subpoenaed to testify, about whom this Court
has explained (United States v. Dionisio, 410 U.S. 1, 10 (1973),
quoting United States v. Doe, 457 F.2d 895, 898 (2d Cir. 1972)):

      The compulsion exerted by a grand jury subpoena differs from the
      seizure effect by an arrest or even an investigative "stop" * *
      * :

         "The latter is abrupt, is effected with force or the threat
      of it and often in demeaning circumstances, and, in the case of
      arrest, results in a record involving social stigma.  A subpoena
      is served in the same manner as other legal process;  it
      involves no stigma whatever;  if the time for appearance is
      inconvenient, this can generally be altered;  and it remains at
      all times under the control and supervision of a court."

   Moreover, the routine nature of respondent's meetings with Widseth
sharply distinguishes them from the encounters that Miranda determined
to be inherently coercive.  Respondent was not "thrust into an
unfamiliar atmosphere" or "an interrogation environment * * * created
for no purpose other than to subjugate the individual to the will of
his examiner" (Miranda, 384 U.S. at 457).  As the district court
noted, both the surroundings and Widseth herself were very familiar to
respondent;  he had met with her in her office a dozen times.  An
individual in a familiar environment, dealing with a person he knows,
is far less subject to psychological intimidation.  The Court
recognized this fact in Miranda, where it stressed the ability of
police officers to take advantage of a suspect's unfamiliarity with
both them and the environment.  See, e.g., 384 U.S. at 450, 457, 496.
Many of the psychological ploys discussed in Miranda capitalize on
this unfamiliarity and would simply have been unavailable to Widseth.
See id. at 452.

   Finally, the coercive pressures with which Miranda is concerned
derive in large measure from "an interrogator's imprecations, whether
implied or expressly stated, that the interrogation will continue
until a confession is obtained" (384 U.S. at 468;  see, e.g., id. at
451).  But respondent concededly was not under physical restraint or
unable to leave Widseth's office.  The most that respondent averred --
in testimony at the suppression hearing -- was that he thought he
would be declared in violation of his probation if he left.  See Pet.
App. C26.  A similar claim of "compulsion" could have been made if
respondent and Widseth had been speaking on the telephone.  The effect
of such "compulsion" is not comparable to the intimidating pressure on
a suspect who knows that he literally cannot escape an insistent
interrogator.  /11/

   b. It was also error to conclude that respondent's statement was
compelled by the probation condition that required him to be truthful
with his probation officer.  On its face, that probation condition
simply required respondent not to make false statements to Widseth and
said nothing about his freedom to decline to answer.  Citizens are
often required to be truthful in their dealings with the government;
any person commits a crime if, for example, he makes a false statement
to a federal law enforcement officer in connection with a matter
within the officer's jurisdiction.  18 U.S.C. 1001.

   i. We will assume, however, that respondent, like most
probationers, was required to cooperate with Widseth to the extent
necessary to permit adequate supervision.  That is, respondent
presumably was not free to refuse to answer Widseth's questions
altogether.  But it does not follow that respondent was compelled to
answer every particular question.  It is not clear that his general
duty to cooperate precluded him from declining on occasion to discuss
certain matters -- because he considered them too private, for example
-- as long as he did not unduly obstruct efforts to supervise his
probation.  Consequently, at least until Widseth gave respondent some
reason to believe that he was being uncooperative in a way that
violated the conditions of his probation, any requirement that he be
generally cooperative could not have compelled him to discuss a
particular subject.

   In any event, if respondent was in doubt about the contours of his
duty to cooperate with Widseth, or the meaning of the probation
condition that required him to be truthful, he was free to seek
clarification.  Even though he knew from the time he accepted
probation that he had incriminating secrets in which Widseth would be
interested, we know of no indication that he ever asked her or the
sentencing court for clarification of his duty, if any, to disclose
such information.

   To be sure, the existence of a general duty to cooperate may have
affected respondent's attitude toward Widseth's questions, his overall
willingness to be forthright with her, and the atmosphere of their
encounters.  But such influences are comparable to the "atmosphere
conducive to truthtelling" (Washington, 431 U.S. at 187) that
surrounds many official proceedings, or the "coercive aspects" of
every interview with a police officer (Mathiason, 429 U.S. at 495).
As we explained above, such influences do not constitute compulsion to
speak.

   ii. Even if respondent's probation conditions are construed as
having required him to answer all of Widseth's questions, respondent
still had the opportunity to assert the privilege against
self-incrimination if he wished not to give an incriminating answer.
The pressure involved would have been no greater than that on a
witness subpoenaed to testify or a taxpayer under a legal obligation
to file a federal income tax return.  It is well established that if
such a witness or taxpayer makes a statement, instead of claiming the
privilege against self-incrimination, the statement may be used
against him in a criminal prosecution.  See, e.g., Garner v. United
States, 424 U.S. 648 (1976);  United States v. Kordel, 397 U.S. 1
(1970);  Rogers v. United States, 340 U.S. 367, 370-371 (1951);
Monia, 317 U.S. at 427;  United States v. Murdock, 284 U.S. 141, 148
(1931);  United States ex rel. Vajtauer v. Commissioner of
Immigration, 273 U.S. 103, 112-113 (1927).  See also Maness v. Meyers,
419 U.S. 449, 466 (1975) (The privilege against self-incrimination "is
not a self-executing mechanism;  it can be affirmatively waived, or
lost by not asserting it in a timely fashion.").  /12/

   The reason for this principle is that a person who is required to
answer a question may nevertheless choose to answer for reasons of his
own and not because he is compelled within the meaning of the Fifth
Amendment;  unless he asserts the privilege, there is ordinarily no
basis for concluding that he has not made such a voluntary choice.

      (I)n the ordinary case, if a witness under compulsion to testify
      makes disclosures instead of claiming the privilege, the
      government has not "compelled" him to incriminate himself.  "(If
      a declarant) * * * desires the protection of the privilege, he
      must claim it or he will not be considered to have been
      'compelled' within the meaning of the Amendment."

   Garner, 424 U.S. at 654-655, quoting Monia, 317 U.S. at 427
(footnote omitted).

   Respondent could have attempted to assert the privilege -- to
Widseth, at least -- without risk;  nothing in respondent's testimony
suggests that he believed or had reason to believe that his probation
would have been revoked for merely asking Widseth if he could decline
to answer her questions because he might incriminate himself.  For
this reason, respondent's situation was in no way comparable to that
of the witnesses in Garrity v. New Jersey, 385 U.S. 493 (1967), who
knew that they would suffer substantial penalties if they invoked the
privilege.  See also Lefkowitz v. Turley, 414 U.S. 70 (1973).  Had
Widseth informed respondent that asserting the privilege would be a
violation of the conditions of his probation, a more difficult
question would arise whether respondent would have had to persist and
test his right to assert the privilege in probation revocation
proceedings.  See Garner, 424 U.S. at 661-665.  See also pages 29-30
note 18, infra.  In the circumstances presented by this case, however,
there is not reason to attribute respondent's willingness to discuss
the rape-murder to compulsion arising from his probation conditions;
the more plausible explanation is that respondent chose to discuss it
for other reasons, and that any role played by pressures arising from
his probation status did not amount to constitutionally proscribed
compulsion.  /13/

   Respondent also cannot contend that a warning was required to
ensure that he was not ignorant of his right not to incriminate
himself.  This Court has never held that such a warning is needed
before non-custodial questioning, even in cases where a defendant is
far more likely than respondent to be unaware of his rights.  See
Schneckloth v. Bustamonte, supra, 412 U.S. at 226-227 (citing cases).
Miranda itself envisioned that police officers would question persons
not in custody without giving warnings (384 U.S. at 447-448), and the
Miranda Court could scarcely have assumed that all of those so
interrogated would be more familiar with their constitutional rights
than respondent.  Even when a person is compelled to answer questions
-- as in the case of a witness under subpoena -- the Court does "not
apply a 'waiver' standard as that term was used in Johnson v. Zerbst,
304 U.S. 458 (,464) (1938) ("an intentional relinquishment * * * of a
known right"), and * * * an individual may lose the benefit of the
privilege without making a knowing and intelligent waiver." Garner,
424 U.S. at 654 n.9.  The Court has, in short, always assumed that
individuals have a sufficient familiarity with the principle that they
are not obligated to incriminate themselves to the authorities (see
Michigan v. Tucker, supra, 417 U.S. at 439 ("virtually every schoolboy
is familiar with the concept, if not the language, of the
(Self-Incrimination Clause)")), or that, in any event, their ignorance
would not transform a non-coercive inquiry into compulsion.

   Indeed, respondent has not asserted that he was unaware of his
privilege against self-incrimination.  His "angry" reaction upon
learning that Alpha House had disclosed information to Widseth shows
that he was well aware of the advantages of keeping incriminating
information from her and felt himself under no obligation to reveal
such information to her.  /14/ At the end of his interview with
Widseth, respondent expressly contemplated refusing to confess to the
police and calculated the effect of such a refusal on his propsects.
See Pet. App. C22.  In sum, although the trial court made no finding
on this point, it seems reasonable to suppose that once respondent
learned of the information Alpha House had given to Widseth, he
thought considerable emotional release could be gained by discussing
the matter more fully with her.  In no sense does this constitute
compulsion.  /15/

   c. The third circumstance on which the Minnesota Supreme Court
relied in concluding that respondent's incriminating statements were
the product of compulsion was that Widseth "had substantial reason to
believe that (respondent's) answers were likely to be incriminating"
(Pet. App. A10).  But if the circumstances of respondent's interview
with Widseth and the conditions of respondent's probation did not
compel respondent to answer the other questions Widseth asked, he did
not suddenly become compelled to answer when Widseth asked questions
about the rape-murder.  This Court's decisions foreclose any
contention that an otherwise non-coercive interview becomes coercive
solely because the authorities ask questions revealing their
suspicions and some of the evidence against the suspect.  See
Mathiason, 429 U.S. at 495 ("Nor is the requirement of warnings to be
imposed simply because the questioning takes place in the station
house, or because the questioned person is one whom the police
suspect.").

   In Beckwith v. United States, 425 U.S. 341 (1976), for example, the
defendant urged -- much as the Minnesota Supreme Court reasoned here
-- that he was entitled to warnings before an interview in which he
was the "focus" of a criminal investigation, because that interview
placed him "under 'psychological restraints' which are the functional,
and, therefore, the legal, equivalent of custody" (id. at 345) with
its attendant coercive influences.  The Court emphatically rejected
that contention, saying that it "goes far beyond the reasons for th(e)
holding" in Miranda and "would cut this Court's holding in that case
completely loose from its own explicitly stated rationale" (425 U.S.
at 345).  "It was the compulsive aspect of custodial interrogation,
and not the strength or content of the government's suspicions at the
time the questioning was conducted, which led the court to impose the
Miranda requirements with regard to custodial questioning." Beckwith,
425 U.S. at 346-347 (citations omitted).

   The Minnesota Supreme Court might have been influenced by a belief
that respondent's incriminating statements to Widseth were to some
degree the product of a relationship of trust and cooperation.  While
this may be true, it does not follow that respondent's statements were
compelled or that the values protected by the Self-Incrimination
Clause were otherwise implicated.  As we noted earlier, confessions
will frequently be the result of emotional or psychological impulses,
and a law enforcement officer does not compel a statement when he does
no more than give those impulses a chance to operate.  Indeed, a
relationship of trust, in which respondent found Widseth a sympathetic
audience, is more nearly the opposite of the overbearing practices
condemned by the Court in Miranda.  Moreover, a statement to an
informant prompted by a mistaken belief that he has no relationship
with the authorities and can be trusted not to go to them is, without
question, not "compelled" within the meaning of the Fifth Amendment.
Hoffa v. United States, 385 U.S. 293, 303-304 (1966).  Respondent was
well aware that Widseth was a law enforcement officer;  even the
element o deception involved in an incriminating statement to an
informant was, therefore, absent here.  See also page 9 note 2, supra.

   We recognize, of course, the dangers to the probation system that
might arise if probationers come to regard their supervising officers
as nothing more than investigatory law enforcement agents.  But the
government -- which established the probation system as an alternative
to prison and as a means of rehabilitating offenders -- has a strong
institutional interest in not jeopardizing relationships of trust and
confidence between probation officers and probationers.  We
understand, for example, that supervising officers frequently do not
seek to prosecute probationers who admit minor crimes to them.  /16/
Moreover, one consequence of the Minnesota Supreme Court's approach
will be to encourage probation officers, acting out of an abundance of
caution, to give unnecessary warnings lest they jeopardize a
prosecution for a major offense that should not be overlooked.  The
giving of such warnings can seriously undermine the probation
relationship, by discouraging probationers from viewing probation
officers as counselors with whom they can discuss their problems,
without any benefit to values protected by the Fifth Amendment.

 B. Even if Respondent's Probation Conditions Amounted to the Kind of
Pressure that Would Constitute Coercion in Other Circumstances, They
do not Give Rise to Impermissible Compulsion Here Because They Are
Integral Aspects of the Sentence of Probation that the State Lawfully
Imposed

   Ordinarily, the government would violate a defendant's Fifth
Amendment rights if it obtained statements from him by compulsion and
used the statements in a criminal prosecution.  The Fifth Amendment
rights of an "already-convicted probationer" (Gagnon v. Scarpelli, 411
U.S. 778, 789 n.12 (1973)), however, may be limited in order to
achieve the legitimate objectives of the probation system.
Consequently, even if it were correct to conclude that respondent's
statements were the product of what in other contexts would amount to
impermissible compulsion, it would not follow that the use of those
statements in this case would violate the Constitution.

   1. The Court has repeatedly held that constitutional rights that
would otherwise be retained by a person convicted of a crime may be
restricted in order to accommodate the needs of the penal system.
See, e.g., Bell v. Wolfish, 441 U.S. 520, 545-546 (1979);  Jones v.
North Carolina Prisoners' Labor Union, 433 U.S. 119, 125(1977);  Pell
v. Procunier, 417 U.S. 817, 822 (1974);  Price v. Johnston, 334 U.S.
266, 285 (1948).  While this Court's cases have dealt with prisoners,
the principle must apply equally when some other form of treatment,
such as probation, is determined to be appropriate:  "There must be a
'mutual accommodation between institutional needs and objectives and
the provisions of the Constitution that are of general application.'"
Bell v. Wolfish, 441 U.S. at 546, quoting Wolff v. McDonnell, 418 U.S.
539, 556 (1974).  The courts of appeals, applying this principle, have
consistently upheld conditions, reasonably related to the purposes of
probation, that dramatically limited the exercise of constitutional
rights.  /17/

   2. In this case, any reasonable accommodation would permit the
State to retain the features of its probation system that the court
below identified as a source of compulsion without having to forgo the
use of the probationer's statements in a criminal prosecution.  The
resulting burden on the probationer's constitutional rights is, at
most, slight.  The compulsion perceived by the Minnesota Supreme Court
is attenuated and diffuse;  it derives solely from a non-custodial
interview and an ambiguous probation condition.  Moreover, as we
noted, respondent could have resisted even these weak pressures simply
by asserting his privilege against self-incrimination.  /18/

   At the same time, the Minnesota Supreme Court's approach might
impose severe -- perhaps intolerable -- costs on the government's
ability to maintain a probation system, at least for more than trivial
offenses.  The purpose of probation is to supervise offenders while
"'help(ing them) reintegrate into society as constructive individuals
as soon as they are able'" (Gagnon v. Scarpelli, supra, 411 U.S. at
783, quoting Morrissey v. Brewer, 408 U.S. 471, 477 (1972)), and the
probation officer plays a central role in "supervis(ing the) course of
rehabilitation" (Gagnon, 411 U.S. at 784).  The three circumstances
that the court below identified as a source of compulsion are
indispensable to this process;  legislatures and sentencing judges
would surely be unwilling to permit probation in many instances where
it is now allowed if probationers could not be required to meet with
their probation officers and be truthful with them, and if probation
officers could not question them about possible criminal activity.

   The reporting requirement is plainly central to the probation
relationship.  "The duty 'to report' and to answer questions posed by
a probation officer is an integral obligation of the probationary
status." United States v. Rea, 678 F.2d 382, 390 (2d Cir. 1982).  As
this Court has noted, "through the requirement of reporting to the
parole officer * * * the officer is provided with information about
the parolee and an opportunity to advise him.  The combination puts
the parole officer into the position in which he can try to guide the
parolee into constructive development." Morrissey, 408 U.S. at 478
(footnote omitted).

   Moreover, it is not unusual for a probation officer to receive
information suggesting that a probationer was involved in another
crime, or may be contemplating criminal activity.  A probation officer
would be derelict in discharging both aspects of his "'double duty to
the welfare of his clients and to the safety of the general
community'" (Gagnon, 411 U.S. at 783 (citation omitted)) if, upon
receiving such information, he did not promptly ask the probationer
about the matter and seek to resolve it.  See also Fare v. Michael C.,
442 U.S. 707, 720-722 (1979).  A crime committed during the course of
probation is an indication that probation is not succeeding and that
some corrective action is needed;  the fact that the probationer
committed an earlier crime may similarly suggest the need for some
additional or modified treatment or punishment.  Here, for example,
Widseth sought to discuss the rape-murder with respondent because she
was reconsidering her decision to excuse him from the treatment
program.

   Unless the government abandons one of these central aspects of
probation, the Minnesota Supreme Court's approach would force it to
choose between warning a probationer of his right not to incriminate
himself and forgoing the use of his statements in a criminal
prosecution.  Either course would seriously interfere with the
probation system.  As this Court recognized in Miranda (see 384 U.S.
at 468-469), both the purpose and the effect of a warning are to put
the person being questioned on his guard.  See also Michigan v.
Mosley, 423 U.S. 96, 103-104 (1975).  While a warning might dispel
whatever coercive pressures are present, its effects go far beyond
that;  they tend to discourage willing probationers from cooperating.
A probationer who is inclined to be forthright is likely, when he
hears a warning, to reconsider whether it is not more advantageous to
be silent, evasive, or deceptive.  For these reasons, the warning
requirement would undermine the probation system by impairing, and
perhaps frustrating, the probation officer's important inquiries into
possible criminal activity by the probationer.

   Nor is it acceptable to require the government to forgo the use of
powerful evidence of a probationer's guilt.  Such a course interferes
not only with the enforcement of the criminal law but with the
objectives of probation;  if a probationer has committed another
crime, another prosecution may be necessary in order to impose the
correct punitive or rehabilitative treatment on him.  /19/

   In sum, we do not believe that respondent was in any sense
compelled to make incriminating statements to Widseth.  But even if
the Minnesota Supreme Court was correct in concluding otherwise, the
compulsion was limited in degree and was a necessary incident of the
probation system.  As part of its rehabilitative efforts for persons
convicted of a crime, the State was constitutionally permitted to
subject respondent to that system without forgoing the right to use
his statements in a criminal prosecution.  /20/

                              CONCLUSION

   The judgment of the Minnesota Supreme Court should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   APRIL 1983

   /1/ The district court also held that the testimony of Alpha House
counselors was inadmissible under both the regulations governing
federally assisted treatment programs and, "it appears(,)" state law.
Pet. App. B15-B16.  This issue is not before this Court.

   /2/ In particular, the court's opinion does not suggest that
Widseth unfairly tricked respondent into believing that she would not
report his statements to the police.  Respondent testified (although
neither court below found) that he did not expect Widseth to report
his statements to the police (Pet. App. C27-C28, C30), but he did not
testify that she made any representation, implicit or explicit, to
this effect, and neither court below suggested that respondent had any
basis for believing that his conversations with Widseth were
confidential.  See also Fare v. Michael C., 442 U.S. 707, 722 (1979).

   In any event, if the Minnesota Supreme Court was concerned that
respondent mistakenly believed his conversations with Widseth were
confidential, the proper course would have been to require a
disclaimer of confidentiality, not a warning of the privilege against
self-incrimination.

   /3/ Although it is not entirely clear from the testimony given at
the suppression hearing (see Pet. App. C8-C11, C17-C18, C26-C27) that
respondent's incriminating statements were the result of Widseth's
interrogation (see generally Rhode Island v. Innis, 446 U.S. 291
(1980)), both courts below assumed that they were, and we do also.

   /4/ When a suspect makes incriminating statements because he has
calculated that he will receive more favorable treatment from the
authorities if he cooperates than if he falsely maintains his
innocence, his statements may be said to result from "psychological
pressure" of an even more direct sort -- the belief that he will be
worse off if he does not cooperate.  Nonetheless, a statement made for
this reason is plainly not inadmissible under the Self-Incrimination
Clause.  See Michigan v. Mosley, 423 U.S. 96, 102 (1975).  Moreover,
the authorities may point out to a suspect that he is likely to be
treated more favorably if he cooperates, as long as they do not make
direct threats or coerce the suspect.  See Fare v. Michael C., 442
U.S. 707, 727 (1979).

   /5/ Cf. Coolidge v. New Hampshire, 403 U.S. 443, 487-488 (1971)
("(T)he simple but often powerful convention of openness and honesty
(and) the fear that secretive behavior will intensify suspicion" are
among the "forces pushing (a person) to cooperate with the police.").

   /6/ See, e.g., Mincey v. Arizona, 437 U.S. 385, 401 (1978) ("The
statements at issue were * * * the result of virtually continuous
questioning of a seriously and painfully wounded man on the edge of
consciousness.");  Sims v. Georgia, 389 U.S. 404, 407 (1967) (suspect
"had been in the continuous custody of the police for over eight hours
and had not been fed at all during that time. * * * He is an
illiterate, with only a third grade education, whose mental capacity
is decidedly limited");  Lynumn v. Illinois, 372 U.S. 528, 534 (1963)
(suspect "was encircled in her apartment by three police officers and
a twice convicted felon," and "the police * * * told her that state
financial aid for her infant children would be cut off, and her
children taken from her, if she did not 'cooperate'").

   /7/ Apparently, Widseth asked respondent about the rape-murder
because of information, learned from Alpha House, that the trial court
held inadmissible.  But nothing in the opinion of the Minnesota
Supreme Court suggests that its holding was influenced by this
circumstance.  Consequently, for present purposes, this case must be
viewed as if Widseth asked respondent about the rape-murder because
she had acquired admissible information from a source to which she was
entitled to access, or from her own investigations.

   /8/ The court principally relied (see Pet. App. A8) on United
States v. Steele, 419 F. Supp. 1385 (W.D. Pa. 1976).  Although Steele
suppressed a statement made to a probation officer who had not warned
the probationer, it squarely held, as a necessary premise of its
decision, that "(t)here is no question * * * that defendant was in
custody at the time he was questioned by the probation officer." Id.
at 1386.  Indeed, the court appears to have ruled, in dictum, that "a
probationer is not entitled to Miranda warnings when questioned on a
visit to his probation officer." Ibid.  See also United States v.
Deaton, 468 F.2d 541, 544 (5th Cir. 1972) (parolee "was in custody"
when interrogated);  People v. Diesing, 67 Ill. App. 3d 109, 384
N.E.2d 575 (1978) (probationer was confined in county jail when
interrogated);  State ex rel. Struzik v. Department of Health & Social
Services, 77 Wis. 2d 216, 252 N.W.2d 660 (1977) (parolee was confined
in jail);  People v. Hardenbrook, 68 Mich. App. 640, 243 N.W.2d 705
(1976) (holding Miranda inapplicable to probation revocation
proceedings;  not addressing question whether Miranda warnings would
be required if state sought to use evidence in a criminal
prosecution);  State v. Magby, 113 Ariz. 345, 348-349, 554 P.2d 1272,
1275-1276 (1976) ("in-custody statements * * * to a probation
officer");  State v. Roberts, 14 Wash. App. 727, 544 P.2d 754 (1976)
(statements made by probationer who was not in custody are admissible
even though not preceded by Miranda warnings);  State v. Gallagher, 38
Ohio St. 2d 291, 313 N.E.2d 396 (1974), remanded, 425 U.S. 257, on
remand, 46 Ohio St. 2d 225, 348 N.E.2d 336 (1976) (Miranda warnings
required under state law when parolee is questioned in jail);  State
v. Williams, 486 S.W.2d 468, 473-474 (Mo. 1972) (Miranda warnings must
be given if a parolee "has been arrested and taken into actual police
custody");  State v. Lekas, 201 Kan. 579, 583, 442 P.2d 11, 15 (1968)
(parolee "was taken into custody").

   /9/ See, E.g., United States v. Holmes, 594 F.2d 1167, 1171 (8th
Cir.), cert. denied, 444 U.S. 873 (1979) (contention that probationer
is entitled to Miranda warnings before non-custodial interview with
probation officer is "insubstantial");  United States v. Delago, 397
F. Supp. 708, 712 (S.D.N.Y. 1974).  See also United States v. Rea, 678
F.2d 382, 390 (2d Cir. 1982);  United States v. Miller, 643 F.2d 713,
715 (10th Cir. 1981) (Miranda warnings not required before interview
with probation officer at probationer's home).

   /10/ Moreover, the meeting at which respondent made his inculpatory
statements was, if anything, even less obligatory than respondent's
other meetings with Widseth.  It was not a regularly scheduled monthly
meeting of the sort that respondent knew he had to arrange;  Widseth
only "request(ed)' that respondent contact her and, in contrast to her
previous letter, did not threaten respondent with arrest if he did not
do so.

   /11/ In any event, neither court below specifically found that
respondent remained in Widseth's office because he believed he would
be declared in violation of his probation if he left.  It is far from
certain that respondent had such a belief;  as we noted, the meeting
was scheduled at a time agreeable to respondent and was in response to
a request unaccompanied by any threat, and Widseth had been far from
inflexible in her prior dealings with respondent.  Had respondent been
in doubt about whether he could leave without violating a condition of
his probation, he could have asked Widseth.

   /12/ The court below correctly noted (Pet. App. A5-A6) that the
rule is not the same for custodial interrogations.  As this Court has
explained (see Garner, 424 U.S. at 657-658;  Roberts v. United States,
445 U.S. 552, 560 n.6 (1980)), that is because the pressures Miranda
determined to be inherent in custodial surroundings are pressures not
just to answer questions but to refrain from asserting the privilege;
pressures that tend to overbear a person's will not to answer also
overbear his will to assert the privilege.  "It is presumed that
without proper safeguards the circumstances of custodial interrogation
deny an individual the ability freely to choose to remain silent.  * *
* Thus, any pressures inherent in custodial interrogation are
compulsions to incriminate, not merely compulsions to make
unprivileged disclosures." Garner, 424 U.S. at 657.

   But as we have explained, respondent was not in custody or in any
condition comparable to custody when Widseth interviewed him, and the
setting of that interview did not create pressures tending to overbear
respondent's will.  "Although Miranda's requirement of specific
warnings creates a limited exception to the rule that the privilege
must be claimed, the exception does not apply outside the context of
the inherently coercive custodial interrogations for which it was
designed." Roberts, 445 U.S. at 560.

   /13/ The trial court found that respondent's comment that he
thought he should contact an attorney related only to what respondent
considered to be Alpha House's breach of confidentiality, not to
Widseth's questioning.  The Minnesota Supreme Court did not question
this finding, or suggest that respondent invoked the privilege against
self-incrimination when he made this comment.  Moreover, that court's
holding in no way depended on a determination that respondent
requested an attorney or otherwise invoked the privilege.

   The Minnesota Supreme Court appears to have interpreted certain
statements in Garner, 424 U.S. at 657, 660, and Roberts, 445 U.S. at
559, to suggest that because Widseth "had substantial reason to
believe that (respondent's) answers were likely to be incriminating"
(Pet. App. A10;  see id. at A6), respondent did not have to invoke the
privilege in response to her questions but could answer and later seek
to suppress the statements.  This reasoning is flawed in several
respects.

   First, the Self-Incrimination Clause cannot under any circumstances
require the suppression of respondent's statements unless those
statements were compelled.  Even those members of the Court who have
suggested that a witness sometimes need not invoke the privilege in
response to a question that clearly seeks incriminating information
advocate such an approach only if an answer to the question is by some
means compelled.  See, e.g., United States v. Mandujano, 425 U.S. 564,
591-594, 596-600 (1976) (Brennan, J., concurring).  As we explained in
the text, unless respondent's probation conditions are somewhat
unnaturally interpreted to require him to answer each of Widseth's
questions, he was not under compulsion from any source to speak about
the rape-murder.  See Washingtion, 431 U.S. at 190 ("(T)he distinction
between compulsion to incriminate and compulsion to disclose what the
Government is entitled to know is of no help to respondent;  in this
case there was no compulsion to do either.")

   Even when a person is under compulsion to answer the government's
questions, it should not be material that the government knows it is
seeking incriminating information unless the person is silent, and the
government seeks to penalize his silence.  If a compulsory question
does not obviously seek incriminating information (as in the case of a
federal income tax return), silence may be either an invocation of the
privilege or a simple evasion of the duty to answer, and the
government is entitled to treat it as the latter unless it is clearly
identified from the outset as the former.  See United States v.
Sullivan, 274 U.S. 259, 263-264 (1927).  See also Roberts, supra.  But
when a question obviously seeks incriminating information, there is
far more reason to treat silence as an invocation of the privilege and
"therefore forg(i)ve the usual requirement that the claim of privilege
be presented" (Garner, 424 U.S. at 659 n.11).  The Court forgave the
requirement for this reason in Marchetti v. United States, 390 U.S. 39
(1968), and Grosso v. United States, 390 U.S. 62 (1968), the gambling
tax cases discussed in the portion of Garner on which the Minnesota
Supreme Court relied.

   Here, of course, the State did not seek to penalize respondent for
silence, but to use statements he made.  In this situation, as we
explained in the text, the rationale for the rule that the privilege
must be asserted when the statement is sought is that otherwise the
statement cannot be considered compelled.  This rationale is equally
strong whether or not the government knows that the answer to its
question will probably be incriminating.  If, as the Court has said
(Garner, 424 U.S. at 654-655, quoted at page 21, supra), a person's
failure to invoke the privilege in response to a question means that
the answer cannot be treated as compelled, it has this meaning no
matter what the state of the government's knowledge.

   /14/ In fact, respondent appears to have disclaimed ignorance,
insisting at the suppression hearing that when Widseth mentioned the
rape-murder "little flags went up in my head, and you know, I felt
like I needed an attorney at the time." Pet. App. C26.  (As we noted
(page 22 note 13, supra), the district court apparently did not credit
respondent's assertion that he requested an attorney for this reason,
and the Minnesota Supreme Court did not question that determination.)

   /15/ The Minnesota Supreme Court placed some reliance (see Pet.
App. A9) on Estelle v. Smith, 451 U.S. 454 (1981), which held that a
psychiatrist may not, at the sentencing phase of a capital trial, give
testimony based on damaging statements the defendant made during a
custodial, court-ordered psychiatric examination.  But in ruling that
Miranda warnings would be required before such an examination if its
results were to be used against the defendant, the Court repeatedly
emphasized the custodial nature of the examination.  See 451 U.S. at
467, 468, 469.  Although the Court suggested that a non-custodial
examination could not be compelled if the results were to be used at
the sentencing phase of a capital trial, there is no intimation in the
Court's opinion that warnings would be required before a non-custodial
examination that is otherwise not compulsory (see id. at 468).

   In addition, there is some possibility that a defendant undergoing
a psychiatric examination -- especially if, as in Estelle v. Smith, it
purports to be concerned only with his competence to stand trial (see
451 U.S. at 456-457) -- will make statements that are apparently
unrelated to any crime and that become damaging to the defendant only
because the psychiatrist, after analyzing them, shows them to be
evidence that the defendant is dangerous.  For this reason, a
defendant undergoing a psychiatric examination may not appreciate that
his statements could possibly be incriminating, and their later use
may implicate due process concerns distinct from the privilege against
compelled self-incrimination.  The same cannot be said about
respondent, who of course knew that he was discussing a crime with
Widseth.

   /16/ Officials of the Administrative Office of the United States
Courts, which supervises federal probation officers, have urged that
"probation officers preferably not be called as witnesses to testify
to statements made in confidence to them by probationers or parolees."
Imlay & Reid, Lookat at the Law, 40 Fed. Probation Q. 56, 58 (Dec.
1976).

   /17/ See e.g., United States v. Grubb, 636 F.2d 1211 (3d Cir.
1980), cert. denied, 451 U.S. 970 (1981) (prohibition on holding union
office);  United States v. Tonry, 605 F.2d 144, 150 (5th Cir. 1979)
(prohibition on running for office or engaging in political activity);
 United States v. Albanese, 554 F.2d 543, 545-547 (2d Cir. 1977)
(prohibition on associating with other than law-abiding citizens);
Malone v. United States, 502 F.2d 554, 555 (9th Cir. 1974), cert.
denied, 419 U.S. 1124 (1975) (prohibition on "participat(ing) in any
American Irish Republican movement(,) * * * belong(ing) to * * * Irish
organizations, cultural or otherwise(,) * * * visit(ing) any Irish
pubs * * * (and) accept(ing) * * * employment that directly or
indirectly associates (probationer) with any Irish organization or
movement");  United States v. Smith, 414 F.2d 630, 636 (5th Cir.
1969), rev'd on other grounds sub nom. Schacht v. United States, 398
U.S. 58 (1970) (prohibition on certain political associations).

   /18/ Unlike the situation in cases such as Lefkowitz v. Turley,
supra, and Garrity v. New Jersey, supra, a substantial argument can be
made that because of the importance of keeping a probation officer
apprised of the probationer's activities, the government may revoke
probation if the probationer asserts his privilege against
self-incrimination.  As Judge Frankel explained, allowing a
probationer to assert the privilege against self-incrimination in
response to his probation officer's legitimate inquiries

      would probably spell the end of probation.  Defendants are left
      at large rather than locked up on the understanding that they
      will be subjected to supervision and will cooperate in their
      supervision.  As an alternative to an intolerable regime of
      surveillance approaching the quality of prison, probationers
      must be, and are, relied upon to supply accounts of their major
      activities, including their means of earning a living.  * * * It
      is unlikely that Congress would continue to authorize, or that
      sentencing judges would remain as ready to employ, the
      alternative of probation if the reporting requirement were held
      unconstitutional.

         * * * The requirement to report, to account, is centrally and
      necessary implied in the probationer's status.  It may not be
      avoided by the claim of a privilege which must be held
      unavailable because it is fundamentally inconsistent with the
      acquisition and maintenance of the probationary status.

   United States v. Manfredonia, 341 F.Supp. 790, 794-795 (S.D.N.Y.),
aff'd, 459 F.2d 1392 (2d Cir.), cert. denied, 409 U.S. 851 (1972).
See also United States v. Rea, 678 F.2d 382, 390 (2d Cir. 1982)
("While a probationer is not deprived completely of his Fifth
Amendment rights and may assert them, he runs the risk that his
refusal to answer will lead to a charge of violation of probation.
Any other rule would make a mockery of the supervision aspect of
probation.").

   But this case does not present the question whether the government
may require a probationer to relinquish his privilege against
self-incrimination entirely, because respondent never asserted the
privilege, and the State never attempted to compel a statement over an
assertion of the privilege.  Cf. Roberts, supra.

   /19/ For this reason, it is not sufficient that -- as the Minnesota
Supreme Court apparently acknowledged (Pet. App. A7-A8), and as seems
clear -- respondent's statements could have been used in a probation
revocation proceeding.  Compare Gagnon, 411 U.S. at 782, with United
States v. Ward, 448 U.S. 242 (1980).  See, e.g., United States v.
Johnson, 455 F.2d 932 (5th Cir.), cert. denied, 409 U.S. 856 (1972).

   /20/ In addition, respondent was not required to accept probation;
he did so voluntarily, as an alternative to a term of imprisonment
that the State also had the power to impose.  When respondent accepted
probation, he was expressly advised of its conditions, and he
certainly should have anticipated that his probation officer would
question him if she received information suggesting that he had
committed another crime.  He also had no basis for believing that his
answers to those questions would not be disclosed to law enforcement
authorities (see page 9 note 2, supra).