Supreme Court of the United States
State of RHODE ISLAND, Petitioner,
Thomas J. INNIS.
Argued Oct. 30, 1979.
Decided May 12, 1980.
446 U.S. 291 (1980)
Mr. Justice STEWART delivered the opinion of the Court.
In Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627, 16
L.Ed.2d 694, the Court held that, once a defendant in custody asks to
speak with a lawyer, all interrogation must cease until a lawyer is
present. The issue in this case is whether the respondent was
"interrogated" in violation of the standards promulgated in the Miranda
On the night of January 12, 1975, John Mulvaney, a Providence, R.I.,
taxicab driver, disappeared after being dispatched to pick up a
customer. His body was discovered four days later buried in a shallow
grave in Coventry, R.I. He had died from a shotgun blast aimed at the
back of his head.
On January 17, 1975, shortly after midnight, the Providence police
received a telephone call from Gerald Aubin, also a taxicab driver, who
reported that he had just been robbed by a man wielding a sawed-off
shotgun. Aubin further reported that he had dropped off his assailant
near Rhode Island College in a section of Providence known as Mount
Pleasant. While at the Providence police station waiting to give a
statement, Aubin noticed a picture of his assailant on a bulletin
board. Aubin so informed one of the police officers present. The
officer prepared a photo array, and again Aubin identified a picture of
the same person. That person was the respondent. Shortly thereafter,
the Providence police began a search of the Mount Pleasant area.
At approximately 4:30 a. m. on the same date, Patrolman Lovell, while
cruising the streets of Mount Pleasant in a patrol car, spotted the
respondent standing in the street facing him. When Patrolman Lovell
stopped his car, the respondent walked towards it. Patrolman Lovell
then arrested the respondent, who was unarmed, and advised him of his
so-called Miranda rights. While the two men waited in the patrol car
for other police officers to arrive, Patrolman Lovell did not converse
with the respondent other than to respond to the latter's request for a
Within minutes, Sergeant Sears arrived at the scene of the arrest, and
he also gave the respondent the Miranda warnings. Immediately
thereafter, Captain Leyden and other police officers arrived. Captain
Leyden advised the respondent of his Miranda rights. The respondent
stated that he understood those rights and wanted to speak with a
lawyer. Captain Leyden then directed that the respondent be placed in a
"caged wagon," a four-door police car with a wire screen mesh between
the front and rear seats, and be driven to the central police station.
Three officers, Patrolmen Gleckman, Williams, and McKenna, were
assigned to accompany the respondent to the central station. They
placed the respondent in the vehicle and shut the doors. Captain Leyden
then instructed the officers not to question the respondent or
intimidate or coerce him in any way. The three officers then entered
the vehicle, and it departed.
While en route to the central station, Patrolman Gleckman initiated a
conversation with Patrolman McKenna concerning the missing shotgun.As
Patrolman Gleckman later testified:
"A. At this
point, I was talking back and forth with Patrolman McKenna stating that
I frequent this area while on patrol and [that because a school for
handicapped children is located nearby,] there's a lot of handicapped
children running around in this area, and God forbid one of them might
find a weapon with shells and they might hurt themselves." App. 43-44.
Patrolman McKenna apparently shared his fellow officer's concern:
"A. I more or less concurred with
him [Gleckman] that it was a safety factor and that we should, you
know, continue to search for the weapon and try to find it." Id., at 53.
While Patrolman Williams said nothing, he overheard the conversation between the two officers:
"A. He [Gleckman] said it would be
too bad if the little--I believe he said a girl--would pick up the gun,
maybe kill herself." Id., at 59.
The respondent then interrupted the conversation, stating that the
officers should turn the car around so he could show them where the gun
was located. At this point, Patrolman McKenna radioed back to Captain
Leyden that they were returning to the scene of the arrest and that the
respondent would inform them of the location of the gun. At the time
the respondent indicated that the officers should turn back, they had
traveled no more than a mile, a trip encompassing only a few minutes.
The police vehicle then returned to the scene of the arrest where a
search for the shotgun was in progress. There, Captain Leyden again
advised the respondent of his Miranda rights. The respondent replied
that he understood those rights but that he "wanted to get the gun out
of the way because of the kids in the area in the school." The
respondent then led the police to a nearby field, where he pointed out
the shotgun under some rocks by the side of the road.
On March 20, 1975, a grand jury returned an indictment charging the
respondent with the kidnaping, robbery, and murder of John Mulvaney.
Before trial, the respondent moved to suppress the shotgun and the
statements he had made to the police regarding it. After an
evidentiary hearing at which the respondent elected not to testify, the
trial judge found that the respondent had been "repeatedly and
completely advised of his Miranda rights." He further found that it was
"entirely understandable that [the officers in the police vehicle]
would voice their concern [for the safety of the handicapped children]
to each other." The judge then concluded that the respondent's decision
to inform the police of the location of the shotgun was "a waiver,
clearly, and on the basis of the evidence that I have heard, and [sic ]
intelligent waiver, of his [Miranda ] right to remain silent." Thus,
without passing on whether the police officers had in fact
"interrogated" the respondent, the trial court sustained the
admissibility of the shotgun and testimony related to its discovery.
That evidence was later introduced at the respondent's trial, and the
jury returned a verdict of guilty on all counts.
On appeal, the Rhode Island Supreme Court, in a 3-2 decision, set aside
the respondent's conviction. R.I., 391 A.2d 1158. Relying at least in
part on this Court's decision in Brewer v. Williams, 430 U.S. 387, 97
S.Ct. 1232, 51 L.Ed.2d 424, the court concluded that the respondent had
invoked his Miranda right to counsel and that, contrary to Mirandas'
mandate that, in the absence of counsel, all custodial interrogation
then cease, the police officers in the vehicle had "interrogated" the
respondent without a valid waiver of his right to counsel. It was the
view of the state appellate court that, even though the police officers
may have been genuinely concerned about the public safety and even
though the respondent had not been addressed personally by the police
officers, the respondent nonetheless had been subjected to "subtle
coercion" that was the equivalent of "interrogation" within the meaning
of the Miranda opinion. Moreover, contrary to the holding of the trial
court, the appellate court concluded that the evidence was insufficient
to support a finding of waiver. Having concluded that both the shotgun
and testimony relating to its discovery were obtained in violation of
the Miranda standards and therefore should not have been admitted into
evidence, the Rhode Island Supreme Court held that the respondent was
entitled to a new trial.
We granted certiorari to address for the first time the meaning of
"interrogation" under Miranda v. Arizona. 440 U.S. 934, 99 S.Ct. 1277,
59 L.Ed.2d 492.
In its Miranda opinion, the Court concluded that in the context of
"custodial interrogation" certain procedural safeguards are necessary
to protect a defendant's Fifth and Fourteenth Amendment privilege
against compulsory self-incrimination. More specifically, the Court
held that "the prosecution may not use statements, whether exculpatory
or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination." Id., 384 U.S., at
444, 86 S.Ct., at 1612. Those safeguards included the now familiar
Miranda warnings--namely, that the defendant be informed "that he has
the right to remain silent, that anything he says can be used against
him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be
appointed for him prior to any questioning if he so desires"--or their
equivalent. Id., at 479, 86 S.Ct., at 1630.
The Court in the Miranda opinion also outlined in some detail the
consequences that would result if a defendant sought to invoke those
procedural safeguards. With regard to the right to the presence of
counsel, the Court noted:
"Once warnings have been given,
the subsequent procedure is clear. . . . If the individual states that
he wants an attorney, the interrogation must cease until an attorney is
present. At that time, the individual must have an opportunity to
confer with the attorney and to have him present during any subsequent
questioning. If the individual cannot obtain an attorney and he
indicates that he wants one before speaking to police, they must
respect his decision to remain silent." Id., at 473-474, 86 S.Ct., at
In the present case, the parties are in agreement that the
respondent was fully informed of his Miranda rights and that he invoked
his Miranda right to counsel when he told Captain Leyden that he wished
to consult with a lawyer. It is also uncontested that the respondent
was "in custody" while being transported to the police station.
The issue, therefore, is whether the respondent was "interrogated" by
the police officers in violation of the respondent's undisputed right
under Miranda to remain silent until he had consulted with a lawyer.
In resolving this issue, we first define the term
"interrogation" under Miranda before turning to a consideration of the
facts of this case.
The starting point for defining "interrogation" in this context is, of
course, the Court's Miranda opinion. There the Court observed that
"[b]y custodial interrogation, we mean questioning initiated by law
enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way."
Id., at 444, 86 S.Ct., at 1612 (emphasis added). This passage and other
references throughout the opinion to "questioning" might suggest that
the Miranda rules were to apply only to those police interrogation
practices that involve express questioning of a defendant while in
We do not, however, construe the Miranda opinion so narrowly. The
concern of the Court in Miranda was that the "interrogation
environment" created by the interplay of interrogation and custody
would "subjugate the individual to the will of his examiner" and
thereby undermine the privilege against compulsory self-incrimination.
Id., at 457-458, 86 S.Ct., at 1619. The police practices that evoked
this concern included several that did not involve express questioning.
For example, one of the practices discussed inMiranda was the use of
line-ups in which a coached witness would pick the defendant as the
perpetrator. This was designed to establish that the defendant was in
fact guilty as a predicate for further interrogation. Id., at 453, 86
S.Ct., at 1602. A variation on this theme discussed in Miranda was the
so-called "reverse line-up" in which a defendant would be identified by
coached witnesses as the perpetrator of a fictitious crime, with the
object of inducing him to confess to the actual crime of which he was
suspected in order to escape the false prosecution. Ibid. The Court in
Miranda also included in its survey of interrogation practices the use
of psychological ploys, such as to "posi[t]" "the guilt of the
subject," to "minimize the moral seriousness of the offense," and "to
cast blame on the victim or on society." Id., at 450, 86 S.Ct., at
1615. It is clear that these techniques of persuasion, no less than
express questioning, were thought, in a custodial setting, to amount to
This is not to say, however, that all statements obtained by the police
after a person has been taken into custody are to be considered the
product of interrogation. As the Court in Miranda noted:
"Confessions remain a proper
element in law enforcement. Any statement given freely and voluntarily
without any compelling influences is, of course, admissible in
evidence. The fundamental import of the privilege while an individual
is in custody is not whether he is allowed to talk to the police
without the benefit of warnings and counsel, but whether he can be
interrogated. . . . Volunteered statements of any kind are not barred
by the Fifth Amendment and their admissibility is not affected by our
holding today." Id., at 478, 86 S.Ct., at 1630 (emphasis added).
It is clear therefore that the special procedural safeguards
outlined in Miranda are required not where a suspect is simply taken
into custody, but rather where a suspect in custody is subjected to
interrogation. "Interrogation," as conceptualized in the Miranda
opinion, must reflect a measure of compulsion above and beyond that
inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a
person in custody is subjected to either express questioning or its
functional equivalent. That is to say, the term "interrogation" under
Miranda refers not only to express questioning, but also to any words
or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are
reasonably likely to elicit an incriminating response from the
suspect. The latter portion of this definition focuses primarily
upon the perceptions of the suspect, rather than the intent of the
police. This focus reflects the fact that the Miranda safeguards were
designed to vest a suspect in custody with an added measure of
protection against coercive police practices, without regard to
objective proof of the underlying intent of the police. A practice that
the police should know is reasonably likely to evoke an incriminating
response from a suspect thus amounts to interrogation. But, since the
police surely cannot be held accountable for the unforeseeable results
of their words or actions, the definition of interrogation can extend
only to words or actions on the part of police officers that they
should have known were reasonably likely to elicit an incriminating
Turning to the facts of the present case, we conclude that the
respondent was not "interrogated" within the meaning of Miranda. It is
undisputed that the first prong of the definition of "interrogation"
was not satisfied, for the conversation between Patrolmen Gleckman and
McKenna included no express questioning of the respondent. Rather, that
conversation was, at least in form, nothing more than a dialogue
between the two officers to which no response from the respondent was
Moreover, it cannot be fairly concluded that the respondent was
subjected to the "functional equivalent" of questioning. It cannot be
said, in short, that Patrolmen Gleckman and McKenna should have known
that their conversation was reasonably likely to elicit an
incriminating response from the respondent. There is nothing in the
record to suggest that the officers were aware that the respondent was
peculiarly susceptible to an appeal to his conscience concerning the
safety of handicapped children. Nor is there anything in the record to
suggest that the police knew that the respondent was unusually
disoriented or upset at the time of his arrest.
The case thus boils down to whether, in the context of a brief
conversation, the officers should have known that the respondent would
suddenly be moved to make a self-incriminating response. Given the fact
that the entire conversation appears to have consisted of no more than
a few off hand remarks, we cannot say that the officers should have
known that it was reasonably likely that Innis would so respond. This
is not a case where the police carried on a lengthy harangue in the
presence of the suspect. Nor does the record support the respondent's
contention that, under the circumstances, the officers' comments were
particularly "evocative." It is our view, therefore, that the
respondent was not subjected by the police to words or actions that the
police should have known were reasonably likely to elicit an
incriminating response from him.
The Rhode Island Supreme Court erred, in short, in equating "subtle
compulsion" with interrogation. That the officers' comments struck a
responsive chord is readily apparent. Thus, it may be said, as the
Rhode Island Supreme Court did say, that the respondent was subjected
to "subtle compulsion." But that is not the end of the inquiry. It must
also be established that a suspect's incriminating response was the
product of words or actions on the part of the police that they should
have known were reasonably likely to elicit an incriminating
response. This was not established in the present case.
For the reasons stated, the judgment of the Supreme Court of Rhode
Island is vacated, and the case is remanded to that court for further
proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice WHITE, concurring.
I would prefer to reverse the judgment for the reasons stated in
my dissenting opinion in Brewer v. Williams, 430 U.S. 387, 97 S.Ct.
1232, 51 L.Ed.2d 424 (1977); but given that judgment and the Court's
opinion in Brewer, I join the opinion of the Court in the present case.
Mr. CHIEF JUSTICE BURGER, concurring in the judgment.
Since the result is not inconsistent with Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), I concur in the
The meaning of Miranda has become reasonably clear and law enforcement
practices have adjusted to its strictures; I would neither overrule
Miranda, disparage it, nor extend it at this late date. I fear,
however, that the rationale in Parts II-A and II-B, of the Court's
opinion will not clarify the tension between this holding and Brewer v.
Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977), and our
other cases. It may introduce new elements of uncertainty; under the
Court's test, a police officer, in the brief time available, apparently
must evaluate the suggestibility and susceptibility of an accused. See,
e. g., ante, at 1690, n. 8. Few, if any, police officers are competent
to make the kind of evaluation seemingly contemplated; even a
psychiatrist asked to express an expert opinion on these aspects of a
suspect in custody would very likely employ extensive questioning and
observation to make the judgment now charged to police officers.
Trial judges have enough difficulty discerning the boundaries and
nuances flowing from post-Miranda opinions, and we do not clarify that
Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins, dissenting.
I am substantially in agreement with the Court's definition of
"interrogation" within the meaning of Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In my view, the Miranda
safeguards apply whenever police conduct is intended or likely to
produce a response from a suspect in custody. As I read the Court's
opinion, its definition of "interrogation" for Miranda purposes is
equivalent, for practical purposes, to my formulation, since it
contemplates that "where a police practice is designed to elicit an
incriminating response from the accused, it is unlikely that the
practice will not also be one which the police should have known was
reasonably likely to have that effect." Ante, at 1690 n. 7. Thus, the
Court requires an objective inquiry into the likely effect of police
conduct on a typical individual, taking into account any special
susceptibility of the suspect to certain kinds of pressure of which the
police know or have reason to know.
I am utterly at a loss, however, to understand how this objective
standard as applied to the facts before us can rationally lead to the
conclusion that there was no interrogation. Innis was arrested at 4:30
a. m., handcuffed, searched, advised of his rights, and placed in the
back seat of a patrol car. Within a short time he had been twice more
advised of his rights and driven away in a four-door sedan with three
police officers. Two officers sat in the front seat and one sat beside
Innis in the back seat. Since the car traveled no more than a mile
before Innis agreed to point out the location of the murder weapon,
Officer Gleckman must have begun almost immediately to talk about the
search for the shotgun.
The Court attempts to characterize Gleckman's statements as "no more
than a few off hand remarks" which could not reasonably have been
expected to elicit a response. Ante, at 1691. If the statements had
been addressed to respondent, it would be impossible to draw such a
conclusion. The simple message of the "talking back and forth" between
Gleckman and McKenna was that they had to find the shotgun to avert a
One can scarcely imagine a stronger appeal to the conscience of a
suspect--any suspect--than the assertion that if the weapon is not
found an innocent person will be hurt or killed. And not just any
innocent person, but an innocent child--a little girl--a helpless,
handicapped little girl on her way to school. The notion that such an
appeal could not be expected to have any effect unless the suspect were
known to have some special interest in handicapped children verges on
the ludicrous. As a matter of fact, the appeal to a suspect to confess
for the sake of others, to "display some evidence of decency and
honor," is a classic interrogation technique. See, e. g., F. Inbau
& J. Reid, Criminal Interrogation and Confessions 60-62 (2d ed.
Gleckman's remarks would obviously have constituted interrogation if
they had been explicitly directed to respondent, and the result should
not be different because they were nominally addressed to McKenna. This
is not a case where police officers speaking among themselves are
accidentally overheard by a suspect. These officers were "talking back
and forth" in close quarters with the handcuffed suspect, traveling
past the very place where they believed the weapon was located. They
knew respondent would hear and attend to their conversation, and they
are chargeable with knowledge of and responsibility for the pressures
to speak which they created.
I firmly believe that this case is simply an aberration, and that in
future cases the Court will apply the standard adopted today in
accordance with its plain meaning.
Mr. Justice STEVENS, dissenting.
An original definition of an old term coupled with an original
finding of fact on a cold record makes it possible for this Court to
vacate the judgment of the Supreme Court of Rhode Island. That court,
on the basis of the facts in the record before it, concluded that
members of the Providence, R.I., police force had interrogated
respondent, who was clearly in custody at the time, in the absence of
counsel after he had requested counsel. In my opinion the state court's
conclusion that there was interrogation rests on a proper
interpretation of both the facts and the law; thus, its determination
that the products of the interrogation were inadmissible at trial
should be affirmed.
The undisputed facts can be briefly summarized. Based on information
that respondent, armed with a sawed-off shotgun, had just robbed a
cabdriver in the vicinity of Rhode Island College, a number of
Providence police officers began a thorough search of the area in the
early morning of January 17, 1975. One of them arrested respondent
without any difficulty at about 4:30 a. m. Respondent did not then have
the shotgun in his possession and presumably had abandoned it, or
hidden it, shortly before he was arrested. Within a few minutes, at
least a dozen officers were on the scene. App. 37. It is fair to infer
that an immediate search for the missing weapon was a matter of primary
When a police captain arrived, he repeated the Miranda warnings that a
patrolman and a sergeant had already given to respondent, and
respondent said he wanted an attorney. The captain then ordered two
officers who were assigned to a "caged wagon" to transport
respondent to the central station, and ordered a third officer to ride
in the back seat with respondent. While the wagon was en route to the
station, one of the officers, Officer Gleckman, stated that there was a
school for handicapped children in the vicinity and "God forbid" one of
them should find the shotgun and hurt herself. As a result of this
statement, respondent told the officers that he was willing to show
them where the gun was hidden. The wagon returned to the scene
and respondent helped the officers locate the gun.
After a suppression hearing, the trial court assumed, without deciding,
that Officer Gleckman's statement constituted interrogation. The court
nevertheless allowed the shotgun and testimony concerning respondent's
connection to it into evidence on the ground that respondent had waived
his Miranda rights when he consented to help police locate the gun. On
appeal from respondent's conviction for kidnaping, robbery and murder,
the Rhode Island Supreme Court held that Officer Gleckman's statement
constituted impermissible interrogation and rejected the trial court's
waiver analysis. It therefore reversed respondent's conviction and
remanded for a new trial. Today, the Court reverses the Rhode Island
court's resolution of the interrogation issue, creating a new
definition of that term and holding, as a matter of law, that the
statement at issue in this case did not constitute interrogation.
As the Court recognizes, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 makes it clear that, once respondent requested an
attorney, he had an absolute right to have any type of interrogation
cease until an attorney was present. As it also recognizes, Miranda
requires that the term "interrogation" be broadly construed to include
"either express questioning or its functional equivalent." Ante, at
1689. In my view any statement that would normally be understood by the
average listener as calling for a response is the functional equivalent
of a direct question, whether or not it is punctuated by a question
mark. The Court, however, takes a much narrower view. It holds that
police conduct is not the "functional equivalent" of direct questioning
unless the police should have known that what they were saying or doing
was likely to elicit an incriminating response from the suspect.
This holding represents a plain departure from the principles set forth
In Miranda the Court required the now-familiar warnings to be given to
suspects prior to custodial interrogation in order to dispel the
atmosphere of coercion that necessarily accompanies such
interrogations. In order to perform that function effectively, the
warnings must be viewed by both the police and the suspect as a correct
and binding statement of their respective rights. Thus, if, after being
told that he has a right to have an attorney present during
interrogation, a suspect chooses to cut off questioning until counsel
can be obtained, his choice must be "scrupulously honored" by the
police. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46
L.Ed.2d 313, id., at 110, 96 S.Ct., at 329, n. 2 (WHITE, J., concurring
in result). At the least this must mean that the police are prohibited
from making deliberate attempts to elicit statements from the suspect.
Yet the Court is unwilling to characterize all such attempts as
"interrogation," noting only that "where a police practice is designed
to elicit an incriminating response from the accused, it is unlikely
that the practice will not also be one which the police should have
known was reasonable likely to have that effect." Ante, at 1690, n. 7.
From the suspect's, point of view, the effectiveness of the warnings
depends on whether it appears that the police are scrupulously honoring
his rights. Apparent attempts to elicit information from a suspect
after he has invoked his right to cut off questioning necessarily
demean that right and tend to reinstate the imbalance between police
and suspect that the Miranda warnings are designed to correct.
Thus, if the rationale for requiring those warnings in the first place
is to be respected, any police conduct or statements that would appear
to a reasonable person in the suspect's position to call for a response
must be considered "interrogation."
In short, in order to give full protection to a suspect's right to be
free from any interrogation at all, the definition of "interrogation"
must include any police statement or conduct that has the same purpose
or effect as a direct question. Statements that appear to call for a
response from the suspect, as well as those that are designed to do so,
should be considered interrogation. By prohibiting only those
relatively few statements or actions that a police officer should know
are likely to elicit an incriminating response, the Court today accords
a suspect considerably less protection. Indeed, since I suppose most
suspects are unlikely to incriminate themselves even when questioned
directly, this new definition will almost certainly exclude every
statement that is not punctuated with a question mark from the concept
The difference between the approach required by a faithful adherence to
Miranda and the stinted test applied by the Court today can be
illustrated by comparing three different ways in which Officer Gleckman
could have communicated his fears about the possible dangers posed by
the shotgun to handicapped children. He could have:
(1) directly asked Innis:
In my opinion, all three of these statements should be considered
interrogation because all three appear to be designed to elicit a
response from anyone who in fact knew where the gun was located.
Under the Court's test, on the other hand, the form of the
statements would be critical. The third statement would not be
interrogation because in the Court's view there was no reason for
Officer Gleckman to believe that Innis was susceptible to this type of
an implied appeal, ante, at 1690; therefore, the statement would not be
reasonably likely to elicit an incriminating response. Assuming that
this is true, see infra, at 1696, then it seems to me that the first
two statements, which would be just as unlikely to elicit such a
response, should also not be considered interrogation. But, because the
first statement is clearly an express question, it would be considered
interrogation under the Court's test. The second statement, although
just as clearly a deliberate appeal to Innis to reveal the location of
the gun, would presumably not be interrogation because (a) it was not
in form a direct question and (b) it does not fit within the
"reasonably likely to elicit an incriminating response" category that
applies to indirect interrogation.
Will you please tell me where the shotgun is so we can protect handicapped school children from danger?
(2) announced to the other officers in the wagon:
If the man sitting in the back seat with me should decide to tell us
where the gun is, we can protect handicapped children from danger.
or (3) stated to the other officers:
It would be too bad if a little handicapped girl would pick up the gun that this man left in the area and maybe kill herself.
As this example illustrates, the Court's test creates an incentive for
police to ignore a suspect's invocation of his rights in order to make
continued attempts to extract information from him. If a suspect does
not appear to be susceptible to a particular type of psychological
pressure, the police are apparently free to exert that pressure on him
despite his request for counsel, so long as they are careful not to
punctuate their statements with question marks. And if, contrary to all
reasonable expectations, the suspect makes an incriminating statement,
that statement can be used against him at trial. The Court thus turns
Miranda's unequivocal rule against any interrogation at all into a trap
in which unwary suspects may be caught by police deception.
Even if the Court's new definition of the term "interrogation" provided
a proper standard for deciding this case, I find it remarkable that the
Court should undertake the initial task of applying its new standard to
the facts of the present case. As noted above, the trial judge did not
decide whether Officer Gleckman had interrogated respondent. Assuming,
arguendo, that he had, the judge concluded that respondent had waived
his request for counsel by offering to help find the gun. The Rhode
Island Supreme Court disagreed on the waiver questions, and expressly
concluded that interrogation had occurred. Even if the Rhode Island
court might have reached a different conclusion under the Court's new
definition, I do not believe we should exclude it from participating in
a review of the actions taken by the Providence police. Indeed, given
the creation of a new standard of decision at this stage of the
litigation, the proper procedure would be to remand to the trial court
for findings on the basis of evidence directed at the new standard.
In any event, I think the Court is clearly wrong in holding, as a
matter of law, that Officer Gleckman should not have realized
that his statement was likely to elicit an incriminating response. The
Court implicitly assumes that, at least in the absence of a lengthy
harangue, a criminal suspect will not be likely to respond to indirect
appeals to his humanitarian impulses. It then goes on to state that the
officers in this case had no reason to believe that respondent would be
unusually susceptible to such appeals. Ante, at 1690. Finally, although
the significance of the officer's intentions is not clear under its
objective test, the Court states in a footnote that the record "in no
way suggests" that Officer Gleckman's remarks were designed to elicit a
response. Ante, at 1690, n. 9.
The Court's assumption that criminal suspects are not susceptible to
appeals to conscience is directly contrary to the teachings of police
interrogation manuals, which recommend appealing to a suspect's sense
of morality as a standard and often successful interrogation technique.
Surely the practical experience embodied in such manuals should not be
ignored in a case such as this in which the record is devoid of any
evidence--one way or the other--as to the susceptibility of suspects in
general or of Innis in particular.
Moreover, there is evidence in the record to support the view that
Officer Gleckman's statement was intended to elicit a response from
Innis. Officer Gleckman, who was not regularly assigned to the caged
wagon, was directed by a police captain to ride with respondent to the
police station. Although there is a dispute in the testimony, it
appears that Gleckman may well have been riding in the back seat with
Innis. The record does not explain why, notwithstanding the fact that
respondent was handcuffed, unarmed, and had offered no resistance when
arrested by an officer acting alone, the captain ordered Officer
Gleckman to ride with respondent. It is not inconceivable that
two professionally trained police officers concluded that a few
well-chosen remarks might induce respondent to disclose the whereabouts
of the shotgun. This conclusion becomes even more plausible in light of
the emotionally charged words chosen by Officer Gleckman ("God forbid"
that a "little girl" should find the gun and hurt herself).
Under my view of the correct standard, the judgment of the Rhode Island
Supreme Court should be affirmed because the statements made
within Innis' hearing were as likely to elicit a response as a direct
question. However, even if I were to agree with the Court's much
narrower standard, I would disagree with its disposition of this
particular case because the Rhode Island courts should be given an
opportunity to apply the new standard to the facts of this case.