William H. Rehnquist: We'll hear argument next No. 87-354, Arizona versus Ronald William Roberson. Mr. Ferg, you may proceed whenever you're ready.
Bruce M. Ferg: Mr. Chief Justice, and may it please the Court. The issue before the Court in this case is the proper scope of application of the per se exclusionary rule of Edwards v. Arizona, namely, that the police may not initiate further interrogation of an arrestee who has stated a desire to speak with counsel. More specifically, should, as has been done in some Arizona State cases, the scope of application of Edwards be extended to reach beyond its facts to situations where there is more than one investigation going on, or kept basically as the facts of Edwards were with a single investigation where there were renewed attempts to interrogate on that same investigation, or possibly should Edwards itself be reconsidered. Now, the facts which bring this case before the Court at this time are relatively simple. On April 6, 1985, Rona Roberson was arrested in the course of a burglary. The arresting officer, Perez, gave him his Miranda warnings, and said that he wanted a lawyer before answering any questions. However, moments later when Roberson was approached by another officer who was unaware of this indication of rights, who asked whether he'd be willing to make a statement he indicated that he would, and as a result of this, he was thereafter questioned several different times by a number of different officers.
Byron R. White: What if he had been aware that he had exercised his right to counsel with respect to another crime being investigated?
Bruce M. Ferg: The other crime was not in the picture at all at this stage.
Byron R. White: I know, but what if the second officer knew that he had invoked his right to counsel at an earlier time?
Bruce M. Ferg: Our position would be if in fact there were a separate investigation as arose in this case, it would be appropriate to ask.
Byron R. White: So you'd be making the same argument?
Bruce M. Ferg: Yes, sir. So the situation--
Thurgood Marshall: Why shouldn't there be a separate warning?
Bruce M. Ferg: --There were in fact separate warnings given.
Thurgood Marshall: Separate?
Bruce M. Ferg: Yes, each time.
Thurgood Marshall: That second one was a separate warning?
Bruce M. Ferg: Yes, sir. Each time that Mr. Roberson approached, he was rewarned.
Thurgood Marshall: He was rewarned?
Bruce M. Ferg: Yes, sir.
Thurgood Marshall: So that they admitted that there were separate proceedings?
Bruce M. Ferg: That's correct.
Thurgood Marshall: Otherwise, they wouldn't have given the separate warnings?
Bruce M. Ferg: I believe not.
Thurgood Marshall: But they if they knew there were separate proceedings, why didn't they abide by the Miranda rule which says, once you want a lawyer and make it clear the questioning stops?
Bruce M. Ferg: Well, neither in Miranda nor in Edwards was there a multiple investigation situation going on. The Court has not really addressed very specifically what happen when you have multiple investigations except in two situations. One was Westover which was a companion case to Miranda, and the second one was in Michigan v. Mosley and in both of those cases, the Court included language which indicated that if there were--
Thurgood Marshall: Westover was very well argued.
Bruce M. Ferg: --Pardon me?
Thurgood Marshall: Westover was very well argued.
Bruce M. Ferg: And I believe that the Court resolved--
Thurgood Marshall: I argued it.
Bruce M. Ferg: --The point of Westover though is, and in connection with Mosley was the indication that if in fact there were a separate investigation that proper warnings were given so that the people in the succeeding investigation were not simply taking advantage of whatever badgering or wearing do xx had occurred in the first investigation, that that second investigation should be treated separately. And that there shouldn't be an automatic or per se exclusion. So the facts--
Thurgood Marshall: I don't want to be questioned. I want a lawyer. What reason is there for not leaving him alone and questioning him about anything including the weather, once says, I don't want to answer questions without a lawyer? Why keep bringing it up over and over again?
Bruce M. Ferg: --Well, the Court has indicated--
Thurgood Marshall: Why do you do that?
Bruce M. Ferg: --Because there are legitimate police investigations--
Thurgood Marshall: Because you expect him to go and give xx and breakdown.
Bruce M. Ferg: --I would not characterize it as breaking down. He was put in a position to knowingly exercise his rights under Miranda by being put in the position to realize--
Thurgood Marshall: Is there any restrictions on how many times you can question a prisoner? How long or anything like that?
Bruce M. Ferg: --The rule that Arizona is suggesting ought to be applied is that if in fact the per se rule of Edwards is maintained at all, that you essentially get one bite at the apple or one chance to interrogate the individual per separate investigation.
Thurgood Marshall: That's in the Westover case. It says that once he says he wants a lawyer, "all questioning must stop". Isn't that what it says? It's in the opinion. I mean, it hasn't interfered with the efficiency of the FBI. They're still rather efficient, aren't they?
Bruce M. Ferg: Certainly.
Thurgood Marshall: And that's what the State court says, just about.
Bruce M. Ferg: That is the approach that they've taken, but again, it's the State of Arizona's position that what actually happened was an undue extension of Miranda and Edwards beyond their facts. The Court recognized that there in fact legitimate police investigative needs, particularly for example, the language in Moran v. Burbine pointing out that it is not interrogation or admission per se which are deemed unfavorably by this Court, but rather the abuse of that process. And that therefore Miranda itself drew a very subtle balance--
Harry A. Blackmun: Is the State's position the same if the interrogator were to see an individual in both interrogation?
Bruce M. Ferg: --Yes, Your Honor.
Harry A. Blackmun: So it makes no difference even though that might influence the defendant that perhaps it's a continuation of the first interrogation. In fact, here wasn't the detective in the last interview also present at the first interview, one of them?
Bruce M. Ferg: Detective Quinn was a common element, but he was not present at the time that Mr. Roberson actually said that he wanted a lawyer. The only person present at that time was the arresting officer, Perez. Quinn showed up some time later, and--
Harry A. Blackmun: But Quinn knew about it, didn't he?
Bruce M. Ferg: --No, he did not. The defense counsel below stipulated that none of the officers besides--
Harry A. Blackmun: I know they stipulated, but why wouldn't he be aware of it?
Bruce M. Ferg: --No one told him, including Mr. Roberson. At no point did Mr. Roberson ever indicate any reluctance at all to speak to any of the succeeding officers, and in fact, he was volunteering information which was part of the reason why there were so many other instances of police talking to him. He was indicating that he had information that he was willing to give about drug dealers and about robberies committed by other people. So they were not there badgering him about his offense in which he'd been effectively caught red-handed.
Harry A. Blackmun: It seems to me that in a large and efficiently operated police department, a request for a lawyer ought to be regarded as known to every interrogator, xx or otherwise.
Bruce M. Ferg: Well, the difficulty is that in a fast breaking situation, even in the best of departments, that doesn't always work. We had one officer here who was on the scene. He was aware of that indication.
Harry A. Blackmun: Well, the fast breaking aspect is one of the difficulties that you face, I think.
Bruce M. Ferg: So, we have this situation where in fact none of the succeeding officers was aware that any indication for counsel had taken place.
John Paul Stevens: Mr. Ferg, as I understood your answer to Justice White, that really doesn't make any difference to your legal position.
Bruce M. Ferg: No.
John Paul Stevens: Your position, as I understand it, is if you have five or six unsolved burglaries in the same neighborhood, you could question him about one. He could ask for a lawyer, and you'd have to stop questioning him about the one, but then the same ones go back ten minutes later and question him about the second one, and do the same thing, the third one, the fourth, the fifth.
Bruce M. Ferg: Well, what Mosley did and what--
John Paul Stevens: Is that right?
Bruce M. Ferg: --Not exactly, sir.
John Paul Stevens: Well, why not? Why wouldn't your position permit that?
Bruce M. Ferg: What we are suggesting is that, as was suggested in Mosley, that there has to be facts which indicate a scrupulous observance and that includes separation in time. There was in fact a different officer, there was a different offense involved.
John Paul Stevens: Yes, but a minute ago, you said it didn't have to be a separate officer. But there has to be a time interval, is that what it is?
Bruce M. Ferg: What we're suggesting is that there reason has to be an examination of the totality of the circumstances.
John Paul Stevens: Well, I don't understand why. If you wait 20 minutes and then go back and say, now I'd like to give you the warnings again, and say, I want to ask you about the second floor robbery. I just talked about the first, and I won't ask you about that any more. But will you talk to me about the second floor. Why can't you just do that under your view?
Bruce M. Ferg: Under the rule that we're asking for, you could, presuming that it was in fact a separate investigation.
John Paul Stevens: Well, yes. It's a separate offense. Which is a separate investigation other than a separate offense. You've got 14 offenses on the books, you're asking about each one of them in turn.
Bruce M. Ferg: Well, there are various ways in which a separate investigation could be conceivably be defined.
John Paul Stevens: Well, you have a separate file on each robbery. One was on Thursday, one was on Friday, one was on Saturday, certainly.
Bruce M. Ferg: There could be a separate type of crime, same type of crime, different events. Could have separate interrogating officers.
John Paul Stevens: But none of those are necessary as I understand your argument. Maybe I misunderstand something.
Bruce M. Ferg: I have been unable to come up with any single factor which would properly distinguish all cases, and that's why it seems to be appropriate to indicate that the totality of the circumstances is the only way to approach it.
Antonin Scalia: What you're saying is that the per se doesn't apply if it's a separate investigation whatever that means.
Bruce M. Ferg: Correct.
Antonin Scalia: But you would continue to look at the confession to see whether in fact it was coerced?
Bruce M. Ferg: Yes.
Antonin Scalia: Which could take into account all of these other factors that you're concerned about.
Bruce M. Ferg: Yes.
Antonin Scalia: You would absolutely eliminate the per se rule so long as it's a separate investigation?
Bruce M. Ferg: Yes. No, no, excuse me.
Antonin Scalia: No. Well, then I don't understand you.
Bruce M. Ferg: Assuming that this Court intends to maintain Edwards in some form, what Arizona is arguing for is that it not be applied beyond Edwards facts, namely, in a situation where you have more than one investigation going on. So the result of that would be if you have the man, he's questioned the first time, he invokes his right to counsel, the second situation comes up, separate investigation come in and all that you can do is ask him can we in fact talk to you about this second investigation, and if he says, no, I still want to talk to my lawyer, then you leave him alone.
Antonin Scalia: I thought's that what I said, there's no per se disqualification for the second investigation. You can approach. No per se invalidation if you initiate the contact.
Bruce M. Ferg: Yes, sir.
Thurgood Marshall: What exactly did he say, did the prison say to the officer? What were his exact words?
Bruce M. Ferg: Well, the only wording that we have is from a summary police report and whether that is word for word or not is not clear. But what that indicates is that Perez stated in his report that Roberson had indicated that he want a lawyer before answering any questions.
Thurgood Marshall: Well, did, does that not, could that not be forever, that I don't want to answer any questions about anything until I get my lawyer. Couldn't that be interpreted as meaning that?
Bruce M. Ferg: Well, that is a semantically permissible interpretation of that, but legally it would--
Thurgood Marshall: But your interpretation is that I don't want to talk about anything else. Now how you get it out of that, I don't see.
Bruce M. Ferg: --Well, the only investigation that was in view to anyone at the time he invoked his rights was the one which he was in fact grabbed at the scene. Therefore, it see unreasonable to suggest--
Thurgood Marshall: He wasn't released was he?
Bruce M. Ferg: --No, he was kept in custody. And he was approached some three days later about this investigation which had been developed out of totally separate things.
Thurgood Marshall: But he was still under prison, he was still under.
Bruce M. Ferg: In jail, yes. The reason why Arizona is advocating this particular approach can be based on two types of grounds. First is precedent. As I've already indicated, neither Miranda itself, nor Edwards deals with a multi-investigation type of situation. The only cases that do deal with those are Westover and Mosley and they both indicate that with proper facts, such that there is a reasonable separation of the one investigation from the other, that in fact that kind of a statement which is preceded by another appropriate rights warning ought to be admitted.
Thurgood Marshall: What happens under your theory if in the second interrogation which is lawful, he admits to something that pertains to the first investigation? Is that admissible?
Bruce M. Ferg: I would argue that it would be.
Thurgood Marshall: I thought so.
Bruce M. Ferg: Because the police have in that instance done nothing inappropriate. The fact that he felt moved to talk about something which was really not germane to the thing that he was being interrogated about at that stage, as Miranda says, things which are volunteered are always admissible. So we have effectively precedent, a situation which permits or suggests that separate investigations ought to indeed be treated differently. Policy question. This Court has made it very clear that exclusionary rules which is effectively what the rule of Edwards is ought not lightly to be extended. And that this kind of resistance to extension is particularly true in the Miranda type of area. Chief Justice Rehnquist's in Chambers opinion in Fare v. Michael C. summarizes a number of cases like that. Since, as was indicated in Moran v. Burbine admissions are in fact favored by the law, it says there that they are more than merely desirable but essential to society's compelling interest in finding convicting and punishing those who violate the law, then there needs to be a weight against that interest what exactly is going to happen. To exclude a properly warned totally voluntary statement which comes out of the separate investigation simply is not a reasonable drawing or weighing of those competing interests. And because the situation with a multi-investigation case is such that there is not likely to be the kind of badgering which were the very reasons for Miranda and Edwards being announced in the first place, it is the State's position that the only appropriate drawing of the line or weighing of the interests is that in a truly separate case or separate investigation, then the police ought to be permitted to at least approach the man and ask him about that separate investigation. And I'll reserve the rest of my time.
William H. Rehnquist: Thank you, Mr. Ferg. We'll hear now from you, Mr. Larkin.
Paul J. Larkin, Jr.: Thank you, Mr. Chief Justice and may it please the Court. It's not uncommon for a suspect to be implicated in two or more crimes that are being separately investigated by different law enforcement officers or even entirely different law enforcement agencies. And I'd therefore like to use an example to help illustrate our position in this case. The Tucson, Arizona police arrest a suspect for the hold-up of a package store. At the same time, the FBI may have reason to believe that this person has been involved in an unrelated armed bank robbery, a crime occurring at a different time and in a different location. If the suspect invokes his right to silence, then under Mosley, the FBI would be able to approach the suspect to see if he is willing to talk with them about the bank robberies. If the suspect invokes his right to counsel, but later released, then the FBI can approach the suspect about the armed bank robberies. Now, it's our position that the FBI should not be forbidden from approaching the suspect to ask him if he wants to talk about the bank robberies simply because the suspect has invoked his right to counsel, and even though the suspect has not yet been released from police custody. That submission, to believe, is consistent with the Edwards case. Edwards was concerned with the potential for badgering when the police are allowed repeatedly to interrogate a suspect who has asked for a lawyer. When there are truly independent investigations that are underway, that risk we believe is far less likely to be present. That's true whether you look at the problem from the suspect's point of view or from the police point of view. First, when the officers approach the suspect, if they make clear at the outset either before or after giving Miranda warnings, that they are interested in an entirely different matter, the suspect is not likely to believe that his request for counsel has been fictional. He's likely to believe instead that he can control what is out of bounds.
John Paul Stevens: About the request for counsel being a fiction, is that true if three or four days go by and no lawyer ever shows up? Isn't he going to think it's a fiction then? And that's what happened here, a three-day interval? I can't remember. Why would he think he's really going to get a lawyer if three days have gone by and none arrives? And as I understand it, they never really do provide counsel. They say it's available but they just don't provide them until he gets arraigned and so forth.
Paul J. Larkin, Jr.: But that isn't likely to be something he's going to blame at the doorstep of, in my example for instance, the FBI when they come into to talk to him. If he says in that circumstance, I asked for a lawyer, they didn't give me one, I don't want to talk with you, the FBI can't question him.
John Paul Stevens: I understand.
Paul J. Larkin, Jr.: Because he has invoked his right to counsel with respect to what's there.
John Paul Stevens: But you were making the point the fact there was a different interrogator he would still feel quite confident that his right to counsel was not merely a fiction. But I suggest to you that he would think quite the contrary if no lawyer had been appointed when the police said all you have to do is ask for a lawyer and you'll get one before there's any further questioning. And then they come around and question him again without providing him a lawyer.
Paul J. Larkin, Jr.: Well, he's not going to believe it's fictional in a sense that they are just going to repeatedly interrogate him even though he's asked for it. If he has asked for a lawyer and they have left him alone for three days, he knows that by asking for a lawyer, the police are no longer going to badger him or question him. And if the new officers come in and tell him at the outset that they want to talk about a different matter--
John Paul Stevens: And they say again, we will provide you a lawyer if you want one, he'll take that at face value even though that same thing that was said three days earlier and he never got a lawyer.
Paul J. Larkin, Jr.: --Well, he may not take it at literal face value, but what he will realize is this: he'll realize that these police have told him they're going to talk about a different matter. He knows then that his request for a lawyer has at least allowed him to avoid questioning about the first matter. He's likely to believe therefore that he can control the subject of the questioning. Because he hasn't been questioned beforehand, if he doesn't want to be questioned this time, he's likely to believe he just has to say, I don't want to talk, or I want a lawyer, and then in our submission, that questioning would have to cease. So by fictional, I mean in a sense of just ignoring it right then and there and just going ahead with questioning.
Thurgood Marshall: I'm a little confused. The first question was by a state officer, right?
Paul J. Larkin, Jr.: A local police officer, Your Honor, xx--
Thurgood Marshall: And the second was an FBI man?
Paul J. Larkin, Jr.: --In my hypothetical, not in this case.
Thurgood Marshall: Oh. Would you say that in the second interrogation, it would be appropriate for the FBI in your hypothetical to advise him that they cannot question him about the first crime because he's asked for counsel?
Paul J. Larkin, Jr.: It would certainly be an appropriate thing for the FBI to do.
Anthony M. Kennedy: Should we require that?
Paul J. Larkin, Jr.: Whether you're going to require an additional warning--
Anthony M. Kennedy: Yes.
Paul J. Larkin, Jr.: --of that type I think would be inappropriate.
Anthony M. Kennedy: Why, if this is what he thinks. You said that he knows that he can't be questioned or he can reasonably assume he can't be questioned about the first crime. What's wrong with making a rule that the FBI has to tell him that.
Paul J. Larkin, Jr.: Because I think it would probably become as soon as he starts asking a question.
Anthony M. Kennedy: Well, if it's apparent then what's the harm?
Paul J. Larkin, Jr.: The harm may simply be that adding an additional type of rule into this circumstance may perhaps complicate the matter unnecessarily. I mean, take this case for example.
Antonin Scalia: Let's take this case, Mr. Larkin, your assumption unfortunately that he knows that he can't be questioned about the first crime doesn't fit very well into the facts of this particular case. Because despite his request for counsel at the time of the investigation of the first crime, he was indeed approached, what, three or four times, before the second investigation approached him.
Paul J. Larkin, Jr.: Yes.
Antonin Scalia: So this particular defendant had no reason to believe that they indeed kept their promise that when he asked for counsel that he wouldn't be bothered further.
Paul J. Larkin, Jr.: Well, he... that's because of the peculiarities of this particular case.
Antonin Scalia: Well unfortunately that's the case we're deciding.
Paul J. Larkin, Jr.: But what we're asking the Court to do is recognize that this general rule should apply. We don't think that the facts of this case should preclude the Court from adopting it, and we also don't think the facts of this case counsel against it. For example, in this case, the reason he was approached during this interim was he also said at the very outset to the second officer who approached him that he would be willing to talk.
Anthony M. Kennedy: Well, in this case, should the confession be suppressed, in this case?
Paul J. Larkin, Jr.: The confession in this case should not be. The confession he gave in this case was--
Anthony M. Kennedy: Why?
Paul J. Larkin, Jr.: --was one that was on April 19th about the April 16th burglary.
Anthony M. Kennedy: And you think the repeated violations of his rights are irrelevant as to the second crime?
Paul J. Larkin, Jr.: It's relevant only if you take into account the possibility that his waiver has been overcome because he's been badgered by the police. In that respect, we're not saying that these factors can't be taken into account in deciding whether the suspect has validly waived his rights. Our position is simply that the officer who is conducting the independent investigation should be entitled to approach the person to find out if he is willing to discuss the new subject matter. And the reason why, one of the reasons why he should be allowed to approach him is he may not be aware of the fact that there is a new subject matter at issue. This allows them to bring it to his attention. He may have an alibi in which case that would end the inquiry. Alternatively he may realize now that he's in a lot deeper trouble than he was the first time, and he may be willing to answer questions about the second matter in order to obtain a reduced charge or some other type of benefit. We're not asking the Court to say that the police are just licensed to badger a person simply because they're pursuing a separate investigation. Our request is simply that they be permitted to approach the suspect to find out what his wishes are. The police have to be in fact pursuing a separate investigation and they have to obtain a valid waiver of a person's rights during that--
Anthony M. Kennedy: Suppose the police arrest somebody for shop lifting and they think they had a murder. Can they spend three hours with him on the shoplifting charge and then send in a new team--
Paul J. Larkin, Jr.: --No, I think not.
Anthony M. Kennedy: --to investigate for the murder? Why not? Separate crimes, separate investigation?
Paul J. Larkin, Jr.: It's not... both... the factors that have to be considered in deciding whether you have a separate investigation we think are first, the subject matter of the inquiry and second the identity of the people conducting it. It's not simply--
Anthony M. Kennedy: Well, the subject matter of the inquiry is different and you have a different team?
Paul J. Larkin, Jr.: --You may have a different team there in that circumstance, but it may also be that the police knew this person had committed the murder at the time they made the arrest, and in that sort of circumstance, it may not be appropriate to apply this sort of rule. Because we're not saying that the police--
Anthony M. Kennedy: Well, then you tell me the exception in that I hypothesized. How do you formulate your rule? independent of is the episode that led to the suspect's arrest crime he's being questioned about the second time is a in those circumstances that it decides what it would be appropriate is to see whether or not the police knew at the time they made the first arrest that he had committed several different crimes. That's a more difficult case than will happen in most. We think in most cases, it will be fairly easy to tell that the second investigation concerns a matter that's entirely separate from the first, I mean, that for example occurred here. The two burglaries occurred on different days and at different locations in the City of Tucson. It's clear that these investigations were entirely separate even though there was one officer common to both. Unless the Court has any further questions.
William H. Rehnquist: Thank you, Mr. Larkin. We'll hear now from you, Mr. Barrasso.
Robert L. Barrasso: Mr. Chief Justice and may it please the Court. I'd like to reiterate the facts of this case because I think they are extremely important; indeed, they are somewhat shameful. On day one, my client was arrested. He was arrested at the scene of a crime, and he was given his Miranda rights and it's important to focus on the rights that he was read. He was told that he had the right to consult with an attorney before answering any questions, and he was also told that he had the right to have the attorney present when he was asked any further questions. He replied, the record reflects, I understand and I want a lawyer before I answer any questions. Moments later, still at the scene of the crime, he was questioned again. At that point, he waived his rights in crime one and made inculpatory statements. Clearly, that was in violation of his Miranda rights. He was again questioned at the scene of the crime.
Antonin Scalia: Excuse me. Why is that shameful? I mean, it's obviously in violation but as I understand from the facts, the officer conducting the second inquiry did not know that he had asked for a lawyer. Now, that's negligent, but I wouldn't call that shameful. I mean, we don't have really bad actors going around here. We maybe have some sloppy recordkeeping, but--
Robert L. Barrasso: Your Honor, it's my position that four times, he was questioned four different times, that we can presume that if it happened in this case, it's going to happen again. One mistake, certainly that would be negligence, but he was questioned again and again, and I've certainly argued that we are going to put a premium on ignorance if we adopt the rule as set for at least in part in the petitioner's brief, and in this case, I think we have seen that all the police officers basically stayed ignorant, and in spite of the clear law that suggests that they should have told each other that this man only wanted to speak through counsel.
Antonin Scalia: --He only asked the first one for counsel. It isn't that all of them stayed ignorant. It's just that the first one never told the others. He didn't ask for counsel each time. He asked for counsel the first time, and never asked for counsel again. Isn't that right?
Robert L. Barrasso: Yes.
Antonin Scalia: So you have one officer who didn't tell the others.
Robert L. Barrasso: Correct.
Antonin Scalia: And that's bad, it's wrong, but it's not necessarily shameful.
Robert L. Barrasso: He was then transported to the police station after being questioned twice, and there questioned again by a two new officers. Officer number one who isn't relevant, and then Officer Quinn. This is the first time he's interviewed by Officer Quinn. Then he's booked. He spends overnight in jail and then he is questioned again the next day. The Officer's not important. And then two days later, Officer Quinn who was present two days earlier, and another officer, questioned him about a separate investigation. I think these facts are very important because the fact that Mr. Roberson requested an attorney before answering any questions has to be given a broad interpretation. We have to put ourselves in the common sense position of a person under arrest, told that he has the right to a lawyer before answering any questions--
Thurgood Marshall: What was he being held under?
Robert L. Barrasso: --Pardon?
Thurgood Marshall: Was he charged with any crime these three days?
Robert L. Barrasso: Yes. I believe the record reflects that he was charged... he had an initial appearance--
Thurgood Marshall: Was he arraigned?
Robert L. Barrasso: --No, he was not arraigned.
Thurgood Marshall: How long can you hold somebody in Arizona?
Robert L. Barrasso: More than three days. The Colorado v. Spring case looked at this same issue from the other point of view. There a defendant waived his right to silence, clear waiver of his right to silence, and the police went on to investigate not just crime one, but crime two. The defendant in that case tried to argue before this Court that his waiver was only a waiver for the purpose of crime one. This Court said, no. When you say any questions, he waived it for all purposes, therefore it was okay for the police to ask him questions about different crimes. It seems like just the opposite is being argued now. They are arguing that we impose on the defendant some narrow vision of the word, any, so that when he says he wants a lawyer, what he is really saying is, I only want a lawyer for this case. There is no reason in fact, there is no reason to presume that he did that. The reading of his rights was broad, referred to any questions, and his statement that he wanted a lawyer before answering any questions clearly in his mind concerned all subject matters.
Antonin Scalia: Why is that necessarily true? You know, it seems to me if I were picked up for a crime that I was guilty of, I would not want to answer any questions without a lawyer. But if I was charged with another crime that I was not guilty of and that I had absolutely easy proof that I was not guilty of, I might well want to talk without lawyer, and get this thing off the books right away. It doesn't seem to me that you have people out there walking around, some of whom never want to talk without a lawyer, and others of whom always want to talk without a lawyer. It seems to me much more likely that individuals decide case by case whether they want to talk or not, depending probably upon whether they're guilty or not, or how likely they think they are to incriminate themselves.
Robert L. Barrasso: Your Honor, my focus, or I think I'm not showing that to say what was in his mind in deciding that he wanted a lawyer, but how he interpreted their statement. They made a representation to him and that is he could have a lawyer before answering any question. When he's requestioned whether it be number one or number two, in this defendant's mind, any questions, here's another question, where's my lawyer. It doesn't matter to him that it's subject matter number one or number two.
William H. Rehnquist: Well, that may be. He'd only to say that on the fourth day, and he would have accomplished it.
Robert L. Barrasso: Well, that's the question. He said it on the first day and it was clearly not accomplished. All that was added to that was that they had more on him.
William H. Rehnquist: Well, it was accomplished for a period of two to three days and then a new circumstance obtains. And the argument is, well, the police should be able to go to him, tell him we have this new circumstance, do you not want to talk about it either, and he can then say, no. Now, maybe that ought not to be the rule of law, but there's nothing unreasonable about it.
Robert L. Barrasso: Your Honor, he didn't say that he did not want to talk about it. He said, I want a lawyer before answering any questions. So we cannot imply that Mr. Roberson did not want to talk. In fact, chances are he did want to talk, but he wanted to have the advice of counsel in making the decision of what to say and what the consequences of discussing that would be.
William H. Rehnquist: Well, Miranda means simply that a defendant, as I understand it, has a right to not answer questions unless a lawyer is provided. It doesn't mean that the State has to, if he says, I want a lawyer before answering any questions, send him a lawyer in the next half hour. They have the option of ceasing questioning.
Robert L. Barrasso: Correct. And that was clearly not done in this case. There was no three days where questions ceased. The questions continued within minutes at the scene of the crime by a different officer. So at the time Mr. Roberson was told about the new investigation, in his own mind, his request for counsel meant what? I meant, now I've got double trouble. There's more things that are happening to me. In the meantime, he has been in jail; he has not been allowed to communicate with anybody. The only new additional facts he has are, a), no attorney; here comes the police again to question me, no attorney; and b) they've got another crime that I'm implicated in. This did not in any way dissipate the coercive environment; if anything, it seems to me that it heightens it.
William H. Rehnquist: Well, as I say, all he had to say was, no, on the fourth day and it would have been accomplished. And the argument is, why exclude very probative relevant testimony that helped solved this crime for something that really is fairly technical.
Robert L. Barrasso: Chief Justice, I don't think it is technical; I think it's very substantive. I think that he could not say, no. We had forced him to switch to plan B. His first plan was, I want to talk to the police, I want to talk to the police with my counsel. Three days later, no lawyer, new evidence, things were getting worse for him, and therefore it does not seem to me just a technicality. It seems to me that that would have a coercive effect on him. The statements made by the police whether in good faith or not appeared to him to be an outright lie so that when they come in again and repeat these Miranda warnings with smiles on their faces, I've heard that before, is what's going on in his mind. They've said before. And it's going to give him the perception that perhaps they're going through the motions and in the meantime putting together the case. So I just do not see how after these repeated questionings, he would still feel like he had the right to exercise that.
Antonin Scalia: If there had been no repeated questionings, and if there were the preface to the questioning on the second charge that Justice Kennedy suggested, you would have no problem?
Robert L. Barrasso: I would have a problem because perhaps if we had one more hypothetical, I would have no problem, and that is, the original warnings did not use the broad terms. But the original warnings clearly used broad terms: you have the right to remain silent, you have the right to the presence of a lawyer before any questioning. Now, if for some reason, the original officer said before any questioning on just this case, we could interpret, it would be fair to assume that Mr. Roberson did not think that it was a broad right.
Antonin Scalia: I see. So you would want to change the original prologue as well as the prologue to the second one.
Robert L. Barrasso: And that has been explicitly rejected by this Court in Colorado v. Spring. They do not want to impose the burden on law enforcement officers to elicit what it is exactly that they are going to question. And in the Colorado v. Spring case, the defendant tried to argue that when they went to subject number two, I should have been informed of the Miranda rights and of my subsequent waiver. And the Colorado v. Spring Court said, no, we don't have to inform him of everything. It's very... just look at the language... he has the right to silence, in that case, before answering any questions, and indeed that simple language indicates to him that that's crime number one, crime number two, crime number three.
Anthony M. Kennedy: But you conceded that this is a separate investigation? That's the way I understood your argument.
Robert L. Barrasso: I think there's various arguments in the briefs talking about separate members, separate investigations. The Solicitor General asked for a separate investigation requirement. But I would posit to you any type of definition of what a separate investigation is is going to lead this Court to constant review to the hairsplitting that we find so common in the--
Anthony M. Kennedy: But I thought you began by saying at the outset that you agreed that this was a separate investigation?
Robert L. Barrasso: --Well, I think, little s and little i, if this Court is going to adopt some concept of separateness, this is way too blurry a case to do it. We have all State police officers. Unlike the Michigan Mosley case where the original Mirandas had to do with robberies that occurred and that the subsequent investigation was about murder in Michigan v. Mosley, notes these are so separate that his right to silence was scrupulously honored in both cases. We don't have that separateness here. He was continually questioned about a series of robberies or of burglaries that took place over a short period of time, often times by common actors in the two separate investigations. I don't think he perceived enough separateness to make this case the distinguishing case that the Solicitor General has argued. This Court in Michigan v. Mosley found that Miranda needed some explaining. The reason for that is that it found that the language about silence could be interpreted too broadly, could be interpreted to mean that if a defendant says he wants to be silent, he could be silent forever through the judicial process. That's bad, the Court said in Michigan v. Mosley for two reasons; it deprives the defendant himself of the right to inquire to find out facts about his own case; and it thwarts police investigation. If we can't talk to the person at all because he's requested his right to remain silent, we have no way of finding further information. Neither of these principles apply when you request the right for an attorney. You can still be explained your options. If there's some quick incriminating evidence that the police think you might have, they can set up an emergency meeting through the lawyer. They can call the lawyer that the defendant has been appointed and say, we think we've got something that's going to get your client off the hook; let's meet right away. A thwarted police investigation? No. Again, the police will still have a means to communicate with the defendant when he requests the right to a lawyer. How can they communicate with him? Of course they can communicate by contacting his lawyer.
Antonin Scalia: What about the defendant who wants to talk about the second. I mean, let's assume the one that I posited before. I'd like to get rid of this second charge because there's nothing to it. I have a perfect alibi and I can tell the investigators where I was and there are ten witnesses, so I can get this whole thing off my back. Under what you want us to do, there's no way that could happen, because the first time in connection with the first charge, I've said, I want a lawyer. I'm too poor to get a lawyer. I'm not given one by the police. When the second charge comes in, they are not allowed even to approach me and ask me if I want to say anything to get this second charge eliminated. I'm not sure I'd like that. What if I want to talk?
Robert L. Barrasso: Well, certainly you can initiate the conversation but you don't know that there's any investigation going on.
Antonin Scalia: That's right.
Robert L. Barrasso: I don't see how it would benefit you by having the police explain to you that investigation. I think that that line of communication is not going to be very helpful to you. Indeed, you'd be better off waiting a day or two and finding this out through your court appointed lawyer. This Court has both made some rulings that have limited the Miranda holding and expanded the Miranda holding. Since the language of Miranda, the Court has made it clear that Miranda is a prophylactic rule. It is a rule that does not necessarily lead to coercion but it is designed to protect against coercion in the custodial environment. The State has argued that this Court should reconsider the Edwards part of the prophylactic rule because the rule is not close enough to the right. And I think to the contrary. I think the Edwards rule is, one has to speculate and think very hard to come up with a situation where a defendant is denied his right to counsel before answering any questions, and there was not actual coercion. If this Court allows the Edwards rule to be limited as set forth by the State, then they are going to allow the defendant to be not implicitly lied to perhaps that's too strong of a word, but basically given a falsehood. We are going to allow the defendant to be told that he has a right to a lawyer before answering any questions, and in spite of that warning, we are going to allow him to be continued to be questioned. This tells the defendant that whatever that rule was, whatever that right was, it's not a very valuable one in my position of sitting here in the jail cell without any input from anybody waiting for that lawyer, the only thing I can find out is that there's more trouble with me, that leads to coercion I think in almost every instance, that this is not a rule that is widely around the Fifth Amendment but a prophylactic rule that is very tightly concealed to just the protection that is needed for the Fifth Amendment.
Byron R. White: I suppose part of your submission is that any time a person asks for a lawyer and says, I don't want to answer any questions, then everybody in the police department must be assumed to know that?
Robert L. Barrasso: Yes. I think that that's fair. I don't think that that's too heavy of a burden. I think it exists today. And if this Court looks at several of the cases at issue here, Michigan v. Jackson, Colorado v. Spring, there's continual references to the recordkeeping devices already set up in most police departments. They have the Miranda warnings, they have check lists, those check lists are filed with the police report. As easily as the FBI can find out that the defendant is in jail in Pema County, Arizona, they can ask in that same book of records, has he been Mirandasized, has he requested counsel. This is already being done.
Harry A. Blackmun: Yet it was stipulated here that the officer didn't know.
Robert L. Barrasso: No, that is, it is stipulated that they didn't know, but it has been argued by the Solicitor General that we will put too heavy a burden on the subsequent investigative agencies to find out. I don't think that that's a valid argument in light of the ease of recordkeeping to simply check off whether he's requested a lawyer or not.
Byron R. White: Stipulation, they just can't stipulate out from... the police can't avoid the presumption that everybody in the department knows. Because if they can, what's wrong with this stipulation? Why shouldn't we judge the case based on the fact that these officers just never knew that he had ever invoked his right to counsel?
Robert L. Barrasso: I think that this Court does have... I think that's the status of it, but my question is, what is the relevance of their ignorance when the issue here is to prevent coercive confessions, not to put a broad exclusionary rule or to deter--
Byron R. White: So you say you just don't need a presumption that everybody knew?
Robert L. Barrasso: --No. I think the knowledge of the police officers is irrelevant. I think the earlier examples by the Court are good ones. You could have knowing officers or ignorant officers come in every ten minutes and ask the questions, and every time they say to the defendant, you have the right to a lawyer before answering any questions, and proceed to ask questions, what does that say to the defendant but that what we're saying is not what should be given in its normal meaning. I don't know what it would mean to a defendant. Maybe he's figuring well what does my right to a lawyer mean. When do I get my lawyer. These are questions, these are any questions, and they're still coming, with the added coercive feeling that they are accumulating new evidence while I sit in jail incommunicado with anybody. I'm finished unless this Court has any further questions.
William H. Rehnquist: Thank you, Mr. Barrasso. Mr. Ferg, you have three minutes remaining.
Bruce M. Ferg: Thank you, sir.
Thurgood Marshall: --arraigning in your State?
Bruce M. Ferg: In Arizona, and this is one of the points I wanted to make, the individual must be brought before a magistrate for his initial appearance within 24 hours. At that time, he--
Thurgood Marshall: Well, was this man brought before a magistrate.
Bruce M. Ferg: --Yes.
Thurgood Marshall: Did the magistrate ask him about a lawyer?
Bruce M. Ferg: He was informed at that stage that he had the right to a lawyer, and as an indigent, the exact proceedings--
Thurgood Marshall: And the magistrate could have appointed a lawyer for him?
Bruce M. Ferg: --My understanding is that if they did things as they were supposed to have done, the initial appearance was not transcribed, but if they followed the rules, he was told that he has the right to a lawyer--
Thurgood Marshall: But in this case, he wasn't carried before a magistrate.
Bruce M. Ferg: --He was taken before a magistrate, as far as we know.
Thurgood Marshall: Is that in the record?
Bruce M. Ferg: In the record which I believe is before this Court, it shows his initial appearance on the 17th, the day after his... and under the Arizona rules, that initial appearance includes being asked whether he has a counsel.
Thurgood Marshall: And you give us your word that it's in the record?
Bruce M. Ferg: I believe that it is, yes, sir.
Thurgood Marshall: You believe it is. But there's no transcript of what happened, is there?
Bruce M. Ferg: At a simple initial appearance, no.
Byron R. White: But ordinarily he would be asked if he wants a lawyer?
Bruce M. Ferg: He would be informed of his right to counsel and told that if he didn't have one, that the public defender would in fact--
Byron R. White: Represent him.
Bruce M. Ferg: --represent him and someone would be at the jail within a couple of days to see him.
Byron R. White: So we don't know whether that transpired or not?
Bruce M. Ferg: I've no reason to believe that it did not because that's what the rules stipulate must happen.
Byron R. White: Well, do you suppose the officers who did the questioning the second time, knew? Shouldn't they assume that he had gone before a magistrate and know that he'd been offered a lawyer? And for all they knew, the public defender was representing him at that time?
Bruce M. Ferg: They might well have assumed that, but again, that is talking essentially in Sixth Amendment terms rather than in Miranda Fifth Amendment terms. If we are in fact going to talk Sixth Amendment right to counsel, he was not arraigned or even arrested because nobody knew about the separate offense at that time, and so there'd be no Sixth Amendment right to preclude any interrogation.
Byron R. White: About that second one.
Bruce M. Ferg: That's correct. Now, one other point that I wanted to make about the facts of this case is that we are dealing here with someone who is volunteering information and that is the reason why he was repeatedly questioned, not because there was any need to go back and badger him about the offense in which he was caught red-handed. He was talking about his drug contacts, about people who were involved in other burglaries and robberies, and that is the sole reason that the other officers were going back on these other occasions to question him, was to find out about material that he was volunteering, not to badger him. He could not have invoked his rights to a crime which even the police effectively did not know was under investigation at that stage. Otherwise, you are saying that Edwards effectively immunizes a man to the point where he could say, I don't want to talk bout anything, and 25 years down the line,--
John Paul Stevens: Let me ask you a question. Supposing at that preliminary hearing, they did in fact appoint a lawyer for the first offense and he just was representing him on the first offense,--
Bruce M. Ferg: --Yes?
John Paul Stevens: --would you think that if the police knew he had a lawyer for the first offense, they could go ahead and question him on the second offense without giving notice to his lawyer that they were going to do so?
Bruce M. Ferg: I would argue that they could.
John Paul Stevens: They could.
William H. Rehnquist: Thank you, Mr. Ferg. The case is submitted.