447 U.S. 264 (1980)

UNITED STATES
v.
HENRY.

No. 79-121.

Supreme Court of United States.

Argued January 16, 1980. Decided June 16, 1980. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

*265 Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, and Edwin S. Kneedler.

Michael E. Geltner argued the cause for respondent. With him on the brief were Larry J. Ritchie and William W. Greenhalgh.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to consider whether respondent's Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by respondent to his cellmate, an undisclosed Government informant, after indictment and while in custody. 444 U. S. 824 (1979).

I

The Janaf Branch of the United Virginia Bank/Seaboard National in Norfolk, Va., was robbed in August 1972. Witnesses saw two men wearing masks and carrying guns enter the bank while a third man waited in the car. No witnesses were able to identify respondent Henry as one of the participants. About an hour after the robbery, the getaway car was discovered. Inside was found a rent receipt signed by one "Allen R. Norris" and a lease, also signed by Norris, for a house in Norfolk. Two men, who were subsequently convicted of participating in the robbery, were arrested at the rented house. Discovered with them were the proceeds of the robbery and the guns and masks used by the gunmen.

Government agents traced the rent receipt to Henry; on the basis of this information. Henry was arrested in Atlanta. Ga., in November 1972. Two weeks later he was indicted for *266 armed robbery under 18 U. S. C. §§ 2113 (a) and (d). He was held pending trial in the Norfolk city jail. Counsel was appointed on November 27.

On November 21, 1972, shortly after Henry was incarcerated, Government agents working on the Janaf robbery contacted one Nichols, an inmate at the Norfolk city jail, who for some time prior to this meeting had been engaged to provide confidential information to the Federal Bureau of Investigation as a paid informant. Nichols was then serving a sentence on local forgery charges. The record does not disclose whether the agent contacted Nichols specifically to acquire information about Henry or the Janaf robbery.^[1]

Nichols informed the agent that he was housed in the same cellblock with several federal prisoners awaiting trial, including Henry. The agent told him to be alert to any statements made by the federal prisoners, but not to initiate any conversation with or question Henry regarding the bank robbery. In early December, after Nichols had been released from jail, the agent again contacted Nichols, who reported that he and Henry had engaged in conversation and that Henry had told him about the robbery of the Janaf bank.^[2] Nichols was paid for furnishing the information.

When Henry was tried in March 1973, an agent of the *267 Federal Bureau of Investigation testified concerning the events surrounding the discovery of the rental slip and the evidence uncovered at the rented house. Other witnesses also connected Henry to the rented house, including the rental agent who positively identified Henry as the "Allen R. Norris" who had rented the house and had taken the rental receipt described earlier. A neighbor testified that prior to the robbery she saw Henry at the rented house with John Luck, one of the two men who had by the time of Henry's trial been convicted for the robbery. In addition, palm prints found on the lease agreement matched those of Henry.

Nichols testified at trial that he had "an opportunity to have some conversations with Mr. Henry while he was in the jail," and that Henry told him that on several occasions he had gone to the Janaf Branch to see which employees opened the vault. Nichols also testified that Henry described to him the details of the robbery and stated that the only evidence connecting him to the robbery was the rental receipt. The jury was not informed that Nichols was a paid Government informant.

On the basis of this testimony,^[3] Henry was convicted of bank robbery and sentenced to a term of imprisonment of 25 years. On appeal, he raised no Sixth Amendment claims. His conviction was affirmed, judge. order reported at 483 F. 2d 1401 (CA4 1973), and his petition to this Court for a writ of certiorari was denied. 421 U. S. 915 (1975).

On August 28, 1975, Henry moved to vacate his sentence pursuant to 28 U. S. C. § 2255.^[4] At this stage, he stated that *268 he had just learned that Nichols was a paid Government informant and alleged that he had been intentionally placed in the same cell with Nichols so that Nichols could secure information about the robbery. Thus, Henry contended that the introduction of Nichols' testimony violated his Sixth Amendment right to the assistance of counsel. The District Court denied the motion without a hearing. The Court of Appeals, however, reversed and remanded for an evidentiary inquiry into "whether the witness [Nichols] was acting as a government agent during his interviews with Henry."

On remand, the District Court requested affidavits from the Government agents. An affidavit was submitted describing the agent's relationship with Nichols and relating the following conversation:

"I recall telling Nichols at this time to be alert to any statements made by these individuals [the federal prisoners] regarding the charges against them. I specifically recall telling Nichols that he was not to question Henry or these individuals about the charges against them, however, if they engaged him in conversation or talked in front of him, he was requested to pay attention to their statements. I recall telling Nichols not to initiate any conversations with Henry regarding the bank robbery charges against Henry, but that if Henry initiated the conversations with Nichols, I requested Nichols to pay attention to the information furnished by Henry."

The agent's affidavit also stated that he never requested anyone affiliated with the Norfolk city jail to place Nichols in the same cell with Henry.

The District Court again denied Henry's § 2255 motion, concluding that Nichols' testimony at trial did not violate Henry's *269 Sixth Amendment right to counsel. The Court of Appeals reversed and remanded, holding that the actions of the Government impaired the Sixth Amendment rights of the defendant under Massiah v. United States, 377 U. S. 201 (1964). The court noted that Nichols had engaged in conversation with Henry and concluded that if by association, by general conversation, or both, Nichols had developed a relationship of trust and confidence with Henry such that Henry revealed incriminating information, this constituted interference with the right to the assistance of counsel under the Sixth Amendment.^[5] 590 F. 2d 544 (1978).

II

This Court has scrutinized postindictment confrontations between Government agents and the accused to determine whether they are "critical stages" of the prosecution at which the Sixth Amendment right to the assistance of counsel attaches. See, e. g., United States v. Ash, 413 U. S. 300 (1973); United States v. Wade, 388 U. S. 218 (1967). The present case involves incriminating statements made by the accused to an undisclosed and undercover Government informant while in custody and after indictment. The Government characterizes Henry's incriminating statements as voluntary and not the result of any affirmative conduct on the part of Government agents to elicit evidence. From this, the Government argues that Henry's rights were not violated, even assuming the Sixth Amendment applies to such surreptitious confrontations; in short, it is contended that the Government has not interfered with Henry's right to counsel.^[6]

*270 This Court first applied the Sixth Amendment to postindictment communications between the accused and agents of the Government in Massiah v. United States, supra. There, after the accused had been charged, he made incriminating statements to his codefendant, who was acting as an agent of the Government. In reversing the conviction, the Court held that the accused was denied "the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicted from him." Id., at 206. The Massiah holding rests squarely on interference with his right to counsel.

The question here is whether under the facts of this case a Government agent "deliberately elicited" incriminating statements from Henry within the meaning of Massiah. Three factors are important. First, Nichols was acting under instructions as a paid informant for the Government; second, Nichols was ostensibly no more than a fellow inmate of Henry; and third, Henry was in custody and under indictment at the time he was engaged in conversation by Nichols.

The Court of Appeals viewed the record as showing that Nichols deliberately used his position to secure incriminating information from Henry when counsel was not present and held that conduct attributable to the Government. Nichols had been a paid Government informant for more than a year; moreover, the FBI agent was aware that Nichols had access to Henry and would be able to engage him in conversations without arousing Henry's suspicion. The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information.^[7]*271 This combination of circumstances is sufficient to support the Court of Appeals' determination. Even if the agent's statement that he did not intend that Nichols would take affirmative steps to secure incriminating information is accepted, he must have known that such propinquity likely would lead to that result.

The Government argues that the federal agents instructed Nichols not to question Henry about the robbery.^[8] Yet according to his own testimony, Nichols was not a passive listener; rather, he had "some conversations with Mr. Henry" while he was in jail and Henry's incriminatory statements were "the product of this conversation." While affirmative interrogation, absent waiver, would certainly satisfy Massiah, we are not persuaded, as the Government contends, that Brewer v. Williams, 430 U. S. 387 (1977), modified Massiah's "deliberately elicited" test. See Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980).^[9] In Massiah, no inquiry was *272 made as to whether Massiah or his codefendant first raised the subject of the crime under investigation.^[10]

It is quite a different matter when the Government uses undercover agents to obtain incriminating statements from persons not in custody but suspected of criminal activity prior to the time charges are filed. In Hoffa v. United States, 385 U. S. 293, 302 (1966), for example, this Court held that "no interest legitimately protected by the Fourth Amendment is involved" because "the Fourth Amendment [does not protect] a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." See also United States v. White, 401 U. S. 745 (1971). Similarly, the Fifth Amendment has been held not to be implicated by the use of undercover Government agents before charges are filed because of the absence of the potential for compulsion. See Hoffa v. United States, supra, at 303-304. But the Fourth and Fifth Amendment claims made in those cases are not relevant to the inquiry under the Sixth Amendment here—whether the Government has interfered with the right to counsel of the accused by "deliberately eliciting" incriminating statements. Our holding today does not modify White or Hoffa.

It is undisputed that Henry was unaware of Nichols' role as a Government informant. The Government argues that this Court should apply a less rigorous standard under the *273 Sixth Amendment where the accused is prompted by an undisclosed undercover informant than where the accused is speaking in the hearing of persons he knows to be Government officers. That line of argument, however, seeks to infuse Fifth Amendment concerns against compelled self-incrimination into the Sixth Amendment protection of the right to the assistance of counsel. An accused speaking to a known Government agent is typically aware that his statements may be used against him. The adversary positions at that stage are well established; the parties are then "arm's-length" adversaries.

When the accused is in the company of a fellow inmate who is acting by prearrangement as a Government agent, the same cannot be said. Conversation stimulated in such circumstances may elicit information that an accused would not intentionally reveal to persons known to be Government agents. Indeed, the Massiah Court noted that if the Sixth Amendment "is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse." The Court pointedly observed that Massiah was more seriously imposed upon because he did not know that his codefendant was a Government agent. 377 U. S., at 206.

Moreover, the concept of a knowing and voluntary waiver of Sixth Amendment rights does not apply in the context of communications with an undisclosed undercover informant acting for the Government. See Johnson v. Zerbst, 304 U. S. 458 (1938). In that setting, Henry, being unaware that Nichols was a Government agent expressly commissioned to secure evidence, cannot be held to have waived his right to the assistance of counsel.

Finally, Henry's incarceration at the time he was engaged in conversation by Nichols is also a relevant factor.^[11] As a ground *274 for imposing the prophylactic requirements in Miranda v. Arizona, 384 U. S. 436, 467 (1966), this Court noted the powerful psychological inducements to reach for aid when a person is in confinement. See also id., at 448-454. While the concern in Miranda was limited to custodial police interrogation, the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents. The Court of Appeals determined that on this record the incriminating conversations between Henry and Nichols were facilitated by Nichols' conduct and apparent status as a person sharing a common plight. That Nichols had managed to gain the confidence of Henry, as the Court of Appeals determined, is confirmed by Henry's request that Nichols assist him in his escape plans when Nichols was released from confinement.^[12]

Under the strictures of the Court's holdings on the exclusion of evidence, we conclude that the Court of Appeals did not err in holding that Henry's statements to Nichols should not have been admitted at trial. By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel.^[13] This is *275 not a case where, in Justice Cardozo's words, "the constable. . . blundered," People v. DeFore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926); rather, it is one where the "constable" planned an impermissible interference with the right to the assistance of counsel.^[14]

The judgment of the Court of Appeals for the Fourth Circuit is

Affirmed.

MR. JUSTICE POWELL, concurring.

The question in this case is whether the Government deliberately elicited information from respondent in violation of the rule of Massiah v. United States, 377 U. S. 201 (1964), and Brewer v. Williams, 430 U. S. 387 (1977). I join the opinion of the Court, but write separately to state my understanding of the Court's holding.

I

In Massiah v. United States, this Court held that the Government violated the Sixth Amendment when it deliberately elicited incriminating information from an indicted defendant who was entitled to assistance of counsel. 377 U. S., at *276 206. Government agents outfitted an informant's automobile with radio transmitting equipment and instructed the informant to engage the defendant in conversation relating to the crimes. United States v. Massiah, 307 F. 2d 62, 72 (CA2 1962) (Hays, J., dissenting). In suppressing statements overheard during the resulting conversation, the Court emphasized that the Sixth Amendment must "`apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. . . .'" 377 U. S., at 206, quoting 307 F. 2d, at 72 (Hays, J., dissenting). Similarly, in Brewer v. Williams, supra, we applied Massiah to a situation in which a police detective purposefully isolated a suspect from his lawyers and, during a long ride in a police car, elicited incriminating remarks from the defendant through skillful interrogation. We suppressed the statement because the government "deliberately and designedly set out to elicit" information from a suspect. 430 U. S., at 399; see id., at 407 (MARSHALL, J., concurring); id., at 412 (POWELL, J., concurring).

The rule of Massiah serves the salutary purpose of preventing police interference with the relationship between a suspect and his counsel once formal proceedings have been initiated. But Massiah does not prohibit the introduction of spontaneous statements that are not elicited by governmental action. Thus, the Sixth Amendment is not violated when a passive listening device collects, but does not induce, incriminating comments. See United States v. Hearst, 563 F. 2d 1331, 1347-1348 (CA9 1977), cert. denied, 435 U. S. 1000 (1978). Similarly, the mere presence of a jailhouse informant who had been instructed to overhear conversations and to engage a criminal defendant in some conversations would not necessarily be unconstitutional. In such a case, the question would be whether the informant's actions constituted deliberate and "surreptitious interrogatio[n]" of the defendant. If they did not, then there would be no interference with the relationship between client and counsel.

*277 II

I view this as a close and difficult case on its facts because no evidentiary hearing has been held on the Massiah claim. Normally, such a hearing is helpful to a reviewing court and should be conducted. On balance, however, I accept the view of the Court of Appeals and of the Court that the record adequately demonstrates the existence of a Massiah violation. I could not join the Court's opinion if it held that the mere presence or incidental conversation of an informant in a jail cell would violate Massiah.^[*] To demonstrate an infringement of the Sixth Amendment, a defendant must show that the government engaged in conduct that, considering all of the circumstances, is the functional equivalent of interrogation. See Brewer v. Williams, 430 U. S., at 399; id., at 411, 412 (POWELL, J., concurring). See also Rhode Island v. Innis, 446 U. S. 291 (1980).

Because I understand that the decision today rests on a conclusion that this informant deliberately elicited incriminating information by such conduct, I join the opinion of the Court.

MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE joins, dissenting.

In this case the Court, I fear, cuts loose from the moorings of Massiah v. United States, 377 U. S. 201 (1964),^[1] and overlooks or misapplies significant facts to reach a result that is not required by the Sixth Amendment, by established precedent, or by sound policy.

The Court of Appeals resolved this case by a divided vote, with all three judges writing separately. Three of the seven *278 judges then on that court dissented from the denial of rehearing en banc. And MR. JUSTICE POWELL, in his separate concurring opinion, obviously is less than comfortable, finds the case "close and difficult," ante, at 277, and writes to assure that his concurring vote preserves his contrary posture when the Court will be confronted with only "the mere presence or incidental conversation of an informant in a jail cell." Ibid. This division of opinion about this case attests to the importance of correct factual analysis here.

Because I view the principles of Massiah and the facts of this case differently than the Court does, I dissent.

I

Massiah mandates exclusion only if a federal agent "deliberately elicited" statements from the accused in the absence of counsel. 377 U. S., at 206. The word "deliberately" denotes intent. Massiah ties this intent to the act of elicitation, that is, to conduct that draws forth a response. Thus Massiah, by its own terms, covers only action undertaken with the specific intent to evoke an inculpatory disclosure.

Faced with Agent Coughlin's unequivocal expression of an intent not to elicit statements from respondent Henry, but merely passively to receive them, ante, at 268; App. to Pet. for Cert. 58a, the Court, in its decision to affirm the judgment of the Court of Appeals, has no choice but to depart from the natural meaning of the Massiah formulation. The Court deems it critical that informant Nichols had been a paid informant; that Agent Coughlin was aware that Nichols "had access" to Henry and "would be able to engage him in conversations without arousing Henry's suspicion"; and that payment to Nichols was on a contingent-fee basis. Ante, at 270. Thus, it is said, even if Coughlin's "statement is accepted . . . he must have known that such propinquity likely would lead to that result" (that is, that Nichols would take "affirmative steps to secure incriminating information"). Ante, at 271. Later, the Court goes even further, characterizing this as a *279 case of "intentionally creating a situation likely to induce Henry to make incriminating statements." Ante, at 274. (Emphasis added.) This determination, coupled with the statement that Nichols "prompted" respondent Henry's remarks, ante, at 273, and see ante, at 271, n. 9, leads the Court to find a Massiah violation.

Thus, while claiming to retain the "deliberately elicited" test, the Court really forges a new test that saps the word "deliberately" of all significance. The Court's extension of Massiah would cover even a "negligent" triggering of events resulting in reception of disclosures. This approach, in my view, is unsupported and unwise.

A. Authority. The Court's precedents appear to me to be contrary to this new objective approach. Spano v. New York, 360 U. S. 315 (1959), whose concurring opinions presaged Massiah, see 377 U. S., at 204, concerned an "all-night inquisition" during which the defendant "repeatedly asked to be allowed to send for his lawyer." 360 U. S., at 327 (concurring opinion). Obviously, that case involved deliberate efforts to extract information in the absence of counsel. In Massiah itself, the agent engineered a pretrial meeting between the accused and a turncoat codefendant. The agent instructed the latter to talk to the defendant about the crime, see United States v. Massiah, 307 F. 2d 62, 66 (CA2 1962); id., at 72 (dissenting opinion), and he bugged the meeting place so he could listen in.^[2]United States v. Ash, 413 U. S. 300 (1973), by emphasizing that Massiah involved a "ruse" and that Massiah's purpose was to neutralize "the overreaching of the prosecution," id., at 312, reinforced the view that deliberate elicitation entails purposeful police action.

If any question could possibly have remained about the subjective nature of the Massiah inquiry, it was dispelled by *280 Brewer v. Williams, 430 U. S. 387 (1977). There the Court closely examined testimony regarding the agent's intentions. In the face of vigorous dissents, it found a Sixth Amendment violation only because "[t]here can be no serious doubt . . . that Detective Leaming deliberately and designedly set out to elicit information from Williams," and because in giving his "Christian burial speech," Leaming "purposely sought . . . to obtain as much incriminating information as possible." Id., at 399 (emphasis added). See also Rhode Island v. Innis, 446 U. S. 291, 300, n. 4 (1980) (reaffirming the "deliberately elicited" criterion); Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo. L. J. 1, 42 (1978) ("The use of the term `deliberately elicited' seems to be quite intentional").^[3]

The unifying theme of Massiah cases, then, is the presence of deliberate, designed, and purposeful tactics, that is, the agent's use of an investigatory tool with the specific intent of extracting information in the absence of counsel. Thus, the Court's "likely to induce" test fundamentally restructures Massiah. Even if the agent engages in no "overreaching," and believes his actions to be wholly innocent and passive, evidence he comes by must be excluded if a court, with the convenient benefit of 20/20 hindsight, finds it likely that the agent's actions would induce the statements.

B. Policy. For several reasons, I believe that the Court's revamping of Massiah abrogates sound judicial policy. First, its test will significantly broaden Sixth Amendment exclusion; yet, as THE CHIEF JUSTICE has stressed before, the "high price society pays for such a drastic remedy" as exclusion of indisputably reliable evidence in criminal trials cannot be denied. See, e. g., Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 413 (1971) (dissenting opinion). Second, I think the Court's approach fails to appreciate *281 fully and to accommodate adequately the "value" and the "unfortunate necessity of undercover work." Weather-ford v. Bursey, 429 U. S. 545, 557 (1977). Third, I find it significant that the proffered statements are unquestionably voluntary. See United States v. Washington, 431 U. S. 181, 187 (1977) ("Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable"). Fourth, the Court condemns and punishes police conduct that I do not find culpable. See Wilson v. Henderson, 584 F. 2d 1185, 1191 (CA2 1978), cert. denied, 442 U. S. 945 (1979) (investigating officer's "directions, `Don't ask questions, just keep your ears open,' suggest familiarity and attempted compliance with, not circumvention of, the principle of Massiah"). Fifth, at least absent an active, orchestrated ruse, I have great difficulty perceiving how canons of fairness are violated when the Government uses statements flowing from a "wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, 385 U. S. 293, 302 (1966).^[4]

Finally, I note the limits, placed in other Sixth Amendment cases, of providing counsel to counterbalance prosecutorial expertise and to aid defendants faced with complex and unfamiliar proceedings. See MR. JUSTICE REHNQUIST'S dissenting opinion, post, at 290-298.^[5] While not out of line with the *282 Court's prior right-to-counsel cases, Massiah certainly is the decision in which Sixth Amendment protections have been extended to their outermost point. I simply do not perceive any good reason to give Massiah the expansion it receives in this case.^[6]

II

In my view, the Court not only missteps in forging a new Massiah test; it proceeds to misapply the very test it has created. The new test requires a showing that the agent created *283 a situation "likely to induce" the production of incriminatory remarks, and that the informant in fact "prompted" the defendant. Even accepting the most capacious reading of both this language and the facts, I believe that neither prong of the Court's test is satisfied.

A. "Likely to Induce." In holding that Coughlin's actions were likely to induce Henry's statements, the Court relies on three facts: a contingent-fee arrangement; Henry's assumption that Nichols was just a cellmate; and Henry's incarceration.^[7]

The Court states: "The arrangement between Nichols and the agent was on a contingent-fee basis; Nichols was to be paid only if he produced useful information." Ante, at 270. The District Court, however, made no such finding, and I am unconvinced that the evidence of record establishes such an understanding.^[8] In any event, I question whether the existence of a contingent-fee arrangement is at all significant. The reasonable conclusion of an informant like Nichols would be that, whatever the arrangement, he would not be remunerated *284 if he breached his promise; yet the Court asks us to infer that Coughlin's conversation with Nichols "likely would lead" Nichols to engage in the very conduct which Coughlin told him to avoid. Ante, at 271.

The Court also emphasizes that Henry was "unaware that Nichols was a Government agent." Ante, at 273. One might properly assign this factor some importance, were it not for Brewer v. Williams. In that case, the Court explicitly held that the fact "[t]hat the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant." 430 U. S., at 400. (Emphasis added.) The Court's teeter-tottering with this factor in Massiah analysis can only induce confusion.

It merits emphasis that the Court's resurrection of the unawareness factor is indispensable to its holding. For, in Brewer, substantial contact and conversation with a confined defendant preceded delivery of the "Christian burial speech." Yet the Court clearly deemed the speech critical in finding a Massiah violation; it thus made clear that mere "association" and "general conversation" did not suffice to bring Massiah into play. Since nothing more transpired here, principled application of Brewer mandates reversal of the judgment in this case.

Finally, the Court notes that Henry was incarcerated when he made his statements to Nichols. The Court's emphasis of the "subtle influences" exerted by custody, however, is itself too subtle for me. This is not a case of a custodial encounter with police, in which the Government's display of power might overcome the free will of the accused. The relationship here was "social" and relaxed. Henry did not suspect that Nichols was connected with the FBI. Moreover, even assuming that "subtle influences" might encourage a detainee to talk about his crime, there are certainly counter-balances of at least equal weight. Since, in jail, "official surveillance has traditionally been the order of the day," *285 Lanza v. New York, 370 U. S. 139, 143 (1962), and a jailmate has obvious incentives to assist authorities, one may expect a detainee to act with corresponding circumspection. Cf. Rhode Island v. Innis, 446 U. S., at 300, n. 4 ("Custody in . . . a [Massiah] case is not controlling; indeed, the petitioner in Massiah was not in custody").

The Court does more than rely on dubious factors in finding that Coughlin's actions were "likely to induce" Nichols' successful prompting of Henry; it fails to focus on facts that cut strongly against that conclusion. The Court ignores Coughlin's specific instruction to Nichols that he was not to question Henry or to initiate conversation with him about the robbery. Nor does it note Nichols' likely assumption that he would not be remunerated, but reprimanded and possibly penalized, if he violated Coughlin's orders. In addition, the record shows that Nichols had worked as an FBI informant for four years and that Coughlin and Nichols had worked together for about a year on several matters. It makes sense, given Nichols' experience and Coughlin's willingness to renew their working relationship, to conclude that Nichols would follow Coughlin's instruction. Finally, it is worth noting that Henry was only one of several federal detainees to whom Nichols was to pay attention;^[9] this is not a case in *286 which officers singled out a specific target. On these facts, I cannot agree that Coughlin "must have known that [it was] likely" that Nichols would seek to elicit information from Henry.

Under the Court's analysis, it is not enough that Coughlin should have anticipated disobedience by Nichols; it must also be shown that his actions were "likely to induce" Henry to talk. In my view, however, there was little reason to believe that even the most aggressive efforts by Nichols would lead to disclosures by Henry. Nothing in the record suggests that Henry and Nichols knew each other, far less that they had the type of relationship that would lead Henry to discuss freely a crime for which he had not yet been tried. In this respect, the case stands in stark contrast to Massiah, where the informant had collaborated with Massiah in a drug smuggling operation and was a codefendant in the resulting and pending prosecution. Moreover, "[t]here is nothing in the record to suggest that . . . the [defendant] was peculiarly susceptible [to approaches by cellmates or that he] . . . was unusually disoriented or upset." Rhode Island v. Innis, 446 U. S., at 302-303. On these facts, it seems to me extremely unlikely that Coughlin's actions would lead to Henry's statements.

Even though the test forged by the Court has no precedent, we are not without some assistance in judging its application. Just a few weeks ago, in Rhode Island v. Innis, the Court held that Miranda was implicated only by "words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response." *287 446 U. S., at 302 (emphasis deleted and added). Here, the Court asks whether agents "creat[ed] a situation likely to induce Henry to make incriminating statements." Ante, at 274. Although the Court in Innis emphasized that the Massiah and Miranda rules are distinct, 446 U. S., at 300, n. 4, I have some difficulty in identifying a material difference between these formulations. Since the Court found its test not satisfied in Innis, it should follow that Henry's statements may be excluded only if there was greater reason in this case than in Innis to expect incriminatory disclosures. The case for finding that disclosures were "likely," however, was clearly stronger in Innis. There the defendant had just been arrested at 4:30 a. m.; he was handcuffed and confined in a "caged wagon"; and the three police officers accompanying him triggered his confession by conversing about the danger that a "little girl" attending a nearby school for the handicapped would "maybe kill herself" upon finding a gun he supposedly had hidden. Id., at 293-295. Against the back-drop of Innis, I ca