DWIGHT ERNEST DOUGALL, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-7394

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fifth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 932-936) is reported
at 919 F.2d 932.

                             JURISDICTION

   The judgment of the court of appeals was entered on December 7,
1990.  The petition for a writ of certiorari was filed on March 7,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTIONS PRESENTED

   1. Whether the rule of Edwards v. Arizona, 451 U.S. 477 (1981),
applies to police requests for hair samples and routine booking
information.

   2. Whether petitioner's right to remain silent was violated when,
after petitioner invoked that right, the officers ceased interrogating
him and became quiet.

                               STATEMENT

   Petitioner was indicted in the Western District of Texas on one
count of kidnapping, in violation of 18 U.S.C. 1201;  three counts of
aggravated sexual abuse, in violation of 18 U.S.C. 2241;  and one
count of attempted murder, in violation of 18 U.S.C. 1113.  He entered
a guilty plea to one count of aggravated sexual abuse, conditioned
upon his right to appeal the denial of a motion to supress evidence.
He was sentenced to 108 months' imprisonment, to be followed by five
years' supervised release.  The court of appeals affirmed.  Pet. App.
932-936.

   1. In July, 1989, two men raped a young woman in an unoccupied
apartment located on a military base.  The woman described her
atackers in detail to FBI agents and military police.  Based on her
description, as well as other evidence linking petitioner to the
crime, the police arrested petitioner as he was leaving the base.
Pet. App. 934;  Gov't C.A. Br. 3-5.

   FBI agents advised petitioner of his rights, and he signed an
acknowledgment and waiver.  After about a minute of questioning,
petitioner requested an attorney.  The agents immediately stopped
interrogating petitioner about the offense.  They did, however, ask
petitioner his name, social security number, birth date, birth place,
height, weight, and address.  This conversation lasted five or six
minutes.  The agents also asked petitioner to provide hair samples,
and told him that if he did not do so voluntarily, they would seek a
court order.  Petitioner agreed to provide the samples at the base
hospital.  Pet. App. 934;  Gov't C.A. Br. 6-7.

   As petitioner and the agents were about to leave for the hospital,
petitioner said that he wanted to talk about the incident.  He signed
a second acknowledgement and waiver of rights.  Petitioner admitted
disrobing the victim and hitting her a number of times, but when the
agents asked him if he had sexual intercourse with her, he replied
that he did not want to answer any more questions.  The agents stopped
questioning him and sat quietly.  Petitioner then answered the
question by denying that he had intercourse with the victim.  He
admitted helping his accomplice to rape the victim and made additional
inculpatory statements.  The agents then took petitioner to the
hospital where he furnished hair samples.  Pet. App. 934;  Gov't C.A.
Br. 8-11.

   2. Petitioner filed a motion to suppress the hair samples and the
incriminating statements that he had made to arresting officers.  He
argued that this evidence had been obtained in violation of the rule
of Edwards v. Arizona, 451 U.S. 477 (1981), barring police-initiated
custodial interrogation of a suspect who has invoked his right to
counsel.  Additionally, he argued that his statements had been
obtained in violation of his right to remain silent.  /1/

   The district court denied the motion to suppress.  C.A. App. 76-83.
 The court found that petitioner had invoked his right to counsel
during the interrogation, but it expressly credited the agents'
testimony that petitioner then "voluntarily reinitiated communications
and agreed to answer additional questions without having counsel
present." Id. at 82.  The court further found that, when petitioner
subsequently declined to speak further with the agents, they ceased
questioning him until he "himself took up the conversation again."
Ibid.

   3. The court of appeals affirmed.  Pet. App. 932-936.  The court
recognized that "(a) confession obtained through interrogation of a
suspect after he has requested an attorney must be suppressed as
evidence unless the suspect himself has voluntarily initiated further
communication leading to it." Id. at 935 (citing Edwards v. Arizona,
451 U.S. at 484-485).  The court of appeals agreed with the district
court that the Edwards rule was not violated here because petitioner
reinitiated communications with police after invoking his right to
counsel.

   The court noted that "interrogation includes words or actions that
the authorities should know are reasonably likely to elicit an
incriminating response from the suspect." Pet. App. 935 (citing Rhode
Island v. Innis, 446 U.S. 291, 300-301 (1980)).  The court held that
"the sort of biographical questions -- name, birth information,
address, height, weight -- asked here are part of the booking routine,
not intended to elicit damaging statements, and thus not interrogation
for fifth amendment purposes." Pet. App. 935 (citing United States v.
Menichino, 497 F.2d 935, 941 (5th Cir. 1974)).  The court observed
that the biographical questions were strictly limited, lasted only six
minutes, and elicited no incriminating statements.  Pet. App. 935.

   The court also held that the agents' request for hair samples did
not violate petitioner's rights under the Fifth or Sixth Amendments.
Hair samples, like handwriting examples, are non-testimonial physical
evidence.  Consequently, petitioner's right not to incriminate himself
would not have been violated by an order compelling him to submit hair
samples.  Pet. App. 935 (citing Schmerber v. California, 384 U.S. 757,
760-764 (1966)).  Moreover, petitioner's Sixth Amendment rights were
not implicated because the agents' request did not occur at a critical
stage of the proceeding.  Pet. App. 935.  Although the court of
appeals commented that "it might have been more prudent to request the
hair sample after (petitioner's) attorney had arrived to avoid
incidentally pressuring" petitioner, the court concluded that the
request did not elicit any incriminating statements, and found no
evidence that the request was intended to elicit such statements.  Id.
at 936.

   Finally, the court concluded that the agents did not violate
petitioner's Fifth Amendment rights by remaining in the room after he
reinvoked his rights.  /2/ Pet. App. 936.  Distinguishing "(s)uch
minor momentary inaction" from the sort of psychological pressure held
impermissible in Brewer v. Williams, 430 U.S. 387 (1977), the court
found that the agents had "endeavored to ensure (petitioner's)
comfort" throughout the interview, and that there was nothing improper
about this "one particular silent moment which (petitioner) singles
out from the ongoing accommodation accorded him." Pet. App. 936.  On
the contrary, the court held, "(w)here other silences have occurred
during the interrogation, waiting a short moment, quietly, without
staring, to ensure that the defendant has finished saying what he
wishes to say accommodates the defendant's comfort more than
threatening to leave him alone." Id. at 936 n.3.

                               ARGUMENT

   1. Petitioner contends (Pet. 4-9) that the agents' routine
biographical questions and request for hair samples violated his
rights under Edwards v. Arizona, 451 U.S. 477 (1981).  Those
contentions are without merit.  /3/

   a. Petitioner's contention that the agents' questions about basic
biographical information violated the Edwards rule overlooks this
Court's decision in Pennsylvania v. Muniz, 110 S. Ct. 2638 (1990).
/4/ In Muniz, five Members of this Court held that booking questions
(e.g., questions about name, address, age, date of birth, height,
weight, eye color) constitute custodial interrogation, but four of the
five recognized that such questions "fall within a 'routine booking
question' exception" to the requirements of Miranda.  See 110 S. Ct.
at 2650 (opinion of Brennan, J.);  id. at 2654-2655 (Marshall J.,
concurring in part and dissenting in part).  The remaining four
Members of this Court concluded that the suspect's responses to
booking questions were not testimonial and thus were not protected by
the Fifth Amendment privilege against self-incrimination.  See id. at
2654 (Rehnquist, C.J., concurring in part, concurring in the result in
part, and dissenting in part).  /5/ In the light of Muniz, it is clear
that petitioner's rights under Edwards were not violated by his
non-incriminating responses to the agents' biographical questions.

   b. Moreover, the agents' request for hair samples did not violate
the Edwards rule.  Because the request called for physical evidence
rather than a testimonial admission, petitioner had no right under the
Self-Incrimination Clause to refuse to provide the samples.  See
Schmerber v. California, 384 U.S. 757 (1966) (blood sample).  See also
United States v. Wade, 388 U.S. 218 (1967) (presence and speech at
lineup);  Gilbert v. California, 388 U.S. 263 (1967) (handwriting
exemplar);  United States v. Dionisio, 410 U.S. 1 (1973) (voice
exemplar);  Payne v. Thompson, 622 F.2d 254 (6th Cir.), cert. denied,
449 U.S. 1063 (1980) (hair and semen samples).  The court of appeals
considered and rejected the possibility that the request for hair
samples "incidentally pressur(ed)" petitioner.  Pet. App. 936.  The
court noted that the request was not intended to elicit, and did not
elicit, any incriminating statements by petitioner.  Ibid.

   2. Petitioner also contends (Pet. 9-11, 15-16) that the officers
violated his right to remain silent when they responded to his
invocation of that right by "not asking any further questions, but
just sitting and waiting for a response." Pet. 9-10.  That fact-bound
contention merits no further review.

   The agents responded to petitioner's invocation of his Fifth
Amendment rights by breaking off the interrogation.  That response was
not only constitutionally permissible, but constitutionally required.
See Miranda v. Arizona, 384 U.S. 436, 473 (1966) ("If the individual
indicates * * * that he wishes to remain silent, the interrogation
must cease.").  Of course, it is conceivable that police silence,
particularly when coupled with other actions, may place impermissible
psychological pressure on a suspect who has invoked his rights under
Miranda.  In this case, however, petitioner conceded that "he did not
feel threatened by the officers." Pet. App. 936.  The agents
"endeavored to ensure (petitioner's) comfort" during the
interrogation.  Ibid.  They did not handcuff him, and broke off the
questioning to allow petitioner to smoke or drink.  In these
circumstances, a short silence "to ensure that the defendant has
finished saying what he wishes to say accommodates the defendant's
comfort more than threatening to leave him alone." Id. at 936 n.3.
Accordingly, the court of appeals reasonably concluded that "one
particular silent moment," even though described by one agent as a
"tactic" to see whether petitioner would answer the agents' question,
did not violate petitioner's right to remain silent.  /6/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   VICKI S. MARANI

      Attorney

   JUNE 1991

   /1/ Petitioner also contended that the statements and hair samples
should be suppressed because he was arrested without probable cause.
He does not renew that contention here.

   /2/ As petitioner notes (Pet. 3 & n.1), the court of appeals erred
in stating (Pet. App. 936) that petitioner invoked his right to
counsel a second time.  Petitioner testified at the suppression
hearing (Tr. 74) that he declined to answer any more questions but did
not request a lawyer.

   /3/ Petitioner's assertion that his Sixth Amendment rights were
violated also is incorrect.  His Sixth Amendment right to counsel
attached only "at or after the time that judicial proceedings ha(d)
been initiated against him -- 'whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.'" Brewer
v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406
U.S. 682, 689 (1972) (plurality opinion)).  At the time of the
questioning, judicial proceedings against petitioner had not yet
begun.

   /4/ Petitioner incorrectly asserts (Pet. 14-15), on the basis of
pre-Muniz cases, that the courts of appeals are divided on this issue.

   /5/ Petitioner is plainly incorrect in contending (Pet. 4-7, 12-14)
that the rule of Edwards applies to all custodial communications, even
those not involving interrogation.  This Court has held repeatedly
that the prophylactic rules of Miranda and Edwards apply only to
police-initiated interrogation of a suspect in custody.  See, e.g.,
Arizona v. Roberson, 486 U.S. 675, 687 (1988);  Rhode Island v. Innis,
446 U.S. 291 (1980).

   /6/ Contrary to petitioner's contention (Pet. 16), the court of
appeals did not "implicitly h(o)ld that the intentions of the police
are irrelevant" to the question whether their words or actions were
reasonably likely to evoke an incriminating response.  The court took
into account the fact that one agent described the momentary silence
as a "tactic," but nevertheless concluded, on the basis of all the
facts, that petitioner's rights were not violated.  Pet. App. 936 &
n.3.