498 U.S. 146 (1990)

MINNICK
v.
MISSISSIPPI.

No. 89-6332.

Supreme Court of the United States.

Argued October 3, 1990. Decided December 3, 1990. CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI.

*147 Floyd Abrams argued the cause for petitioner. With him on the briefs were Anthony Paduano and Clive A. Stafford Smith.

Marvin L. White, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Mike Moore, Attorney General.^[*]

JUSTICE KENNEDY delivered the opinion of the Court.

To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U. S. 436, 474 (1966). We reinforced the protections of Miranda in Edwards v. Arizona, 451 U. S. 477, 484-485 (1981), which held that once the accused requests counsel, officials may not reinitiate questioning "until counsel has been made available" to him. The issue in the case before us is whether Edwards' protection ceases once the suspect has consulted with an attorney.

*148 Petitioner Robert Minnick and fellow prisoner James Dyess escaped from a county jail in Mississippi and, a day later, broke into a mobile home in search of weapons. In the course of the burglary they were interrupted by the arrival of the trailer's owner, Ellis Thomas, accompanied by Lamar Lafferty and Lafferty's infant son. Dyess and Minnick used the stolen weapons to kill Thomas and the senior Lafferty. Minnick's story is that Dyess murdered one victim and forced Minnick to shoot the other. Before the escapees could get away, two young women arrived at the mobile home. They were held at gunpoint, then bound hand and foot. Dyess and Minnick fled in Thomas' truck, abandoning the vehicle in New Orleans. The fugitives continued to Mexico, where they fought, and Minnick then proceeded alone to California. Minnick was arrested in Lemon Grove, California, on a Mississippi warrant, some four months after the murders.

The confession at issue here resulted from the last interrogation of Minnick while he was held in the San Diego jail, but we first recount the events which preceded it. Minnick was arrested on Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and after the arrest. The day following the arrest, Saturday, two Federal Bureau of Investigation (FBI) agents came to the jail to interview him. Petitioner testified that he refused to go to the interview, but was told he would "have to go down or else." App. 45. The FBI report indicates that the agents read petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused to sign a rights waiver form, however, and said he would not answer "very many" questions. Minnick told the agents about the jailbreak and the flight, and described how Dyess threatened and beat him. Early in the interview, he sobbed "[i]t was my life or theirs," but otherwise he hesitated to tell what happened at the trailer. The agents reminded him he did not have to answer questions without a lawyer present. According to the report, "Minnick stated `Come back Monday when I have a lawyer,' *149 and stated that he would make a more complete statement then with his lawyer present." App. 16. The FBI interview ended.

After the FBI interview, an appointed attorney met with petitioner. Petitioner spoke with the lawyer on two or three occasions, though it is not clear from the record whether all of these conferences were in person.

On Monday, August 25, Deputy Sheriff J. C. Denham of Clarke County, Mississippi, came to the San Diego jail to question Minnick. Minnick testified that his jailers again told him he would "have to talk" to Denham and that he "could not refuse." Id., at 45. Denham advised petitioner of his rights, and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the escape and then proceeded to describe the events at the mobile home. According to petitioner, Dyess jumped out of the mobile home and shot the first of the two victims, once in the back with a shotgun and once in the head with a pistol. Dyess then handed the pistol to petitioner and ordered him to shoot the other victim, holding the shotgun on petitioner until he did so. Petitioner also said that when the two girls arrived, he talked Dyess out of raping or otherwise hurting them.

Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the FBI or other police officers, including Denham. The trial court denied the motion with respect to petitioner's statements to Denham, but suppressed his other statements. Petitioner was convicted on two counts of capital murder and sentenced to death.

On appeal, petitioner argued that the confession to Denham was taken in violation of his rights to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court rejected the claims. With respect to the Fifth Amendment aspect of the case, the court found "the Edwards bright-line rule as to initiation" inapplicable. 551 So. 2d 77, 83 (1988). Relying on language in Edwards indicating that the bar on interrogating the accused after a request for counsel *150 applies "`until counsel has been made available to him,'" ibid., quoting Edwards v. Arizona, supra, at 484-485, the court concluded that "[s]ince counsel was made available to Minnick, his Fifth Amendment right to counsel was satisfied." 551 So. 2d, at 83. The court also rejected the Sixth Amendment claim, finding that petitioner waived his Sixth Amendment right to counsel when he spoke with Denham. Id., at 83-85. We granted certiorari, 495 U. S. 903 (1990), and, without reaching any Sixth Amendment implications in the case, we decide that the Fifth Amendment protection of Edwards is not terminated or suspended by consultation with counsel.

In Miranda v. Arizona, supra, at 474, we indicated that once an individual in custody invokes his right to counsel, interrogation "must cease until an attorney is present"; at that point, "the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." Edwards gave force to these admonitions, finding it "inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." 451 U. S., at 485. We held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id., at 484. Further, an accused who requests an attorney, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id., at 484-485.

Edwards is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U. S. 344, 350 (1990). *151 See also Smith v. Illinois, 469 U. S. 91, 98 (1984). The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures. Edwards conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms.

The merit of the Edwards decision lies in the clarity of its command and the certainty of its application. We have confirmed that the Edwards rule provides "`clear and unequivocal' guidelines to the law enforcement profession." Arizona v. Roberson, 486 U. S. 675, 682 (1988). Cf. Moran v. Burbine, 475 U. S. 412, 425-426 (1986). Even before Edwards, we noted that Miranda's "relatively rigid requirement that interrogation must cease upon the accused's request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis." Fare v. Michael C., 442 U. S. 707, 718 (1979). This pre-Edwards explanation applies as well to Edwards and its progeny. Arizona v. Roberson, supra, at 681-682.

The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes his right to counsel "is not subject to further interrogation by the authorities until counsel has been made available to him . . . ." 451 U. S., at 484-485. We do not interpret this language to mean, as the Mississippi court thought, that the protection of Edwards terminates once counsel has consulted with the suspect. In *152 context, the requirement that counsel be "made available" to the accused refers to more than an opportunity to consult with an attorney outside the interrogation room.

In Edwards, we focused on Miranda's instruction that when the accused invokes his right to counsel, "the interrogation must cease until an attorney is present," 384 U. S., at 474 (emphasis added), agreeing with Edwards' contention that he had not waived his right "to have counsel present during custodial interrogation." 451 U. S., at 482 (emphasis added). In the sentence preceding the language quoted by the Mississippi Supreme Court, we referred to the "right to have counsel present during custodial interrogation," and in the sentence following, we again quoted the phrase "`interrogation must cease until an attorney is present'" from Miranda. 451 U. S., at 484-485 (emphasis added). The full sentence relied on by the Mississippi Supreme Court, moreover, says: "We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Ibid. (emphasis added).

Our emphasis on counsel's presence at interrogation is not unique to Edwards. It derives from Miranda, where we said that in the cases before us "[t]he presence of counsel . . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the [Fifth Amendment] privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion." 384 U. S., at 466. See Fare v. Michael C., supra, at 719. Our cases following Edwards have interpreted the decision to mean that the authorities may not initiate questioning of the accused in counsel's absence. Writing for a plurality of the Court, for instance, then-JUSTICE REHNQUIST described the holding of *153 Edwards to be "that subsequent incriminating statements made without [Edwards'] attorney present violated the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution." Oregon v. Bradshaw, 462 U. S. 1039, 1043 (1983) (emphasis added). See also Arizona v. Roberson, supra, at 680 ("The rule of the Edwards case came as a corollary to Miranda's admonition that `[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present"); Shea v. Louisiana, 470 U. S. 51, 52 (1985) ("In Edwards v. Arizona,. . . this Court ruled that a criminal defendant's rights under the Fifth and Fourteenth Amendments were violated by the use of his confession obtained by police-instigated interrogation—without counsel present—after he requested an attorney"). These descriptions of Edwards' holding are consistent with our statement that "[p]reserving the integrity of an accused's choice to communicate with police only through counsel is the essence of Edwards and its progeny." Patterson v. Illinois, 487 U. S. 285, 291 (1988). In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney.

We consider our ruling to be an appropriate and necessary application of the Edwards rule. A single consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights, or from the coercive pressures that accompany custody and that may increase as custody is prolonged. The case before us well illustrates the pressures, and abuses, that may be concomitants of custody. Petitioner testified that though he resisted, he was required to submit to both the FBI and the *154 Denham interviews. In the latter instance, the compulsion to submit to interrogation followed petitioner's unequivocal request during the FBI interview that questioning cease until counsel was present. The case illustrates also that consultation is not always effective in instructing the suspect of his rights. One plausible interpretation of the record is that petitioner thought he could keep his admissions out of evidence by refusing to sign a formal waiver of rights. If the authorities had complied with Minnick's request to have counsel present during interrogation, the attorney could have corrected Minnick's misunderstanding, or indeed counseled him that he need not make a statement at all. We decline to remove protection from police-initiated questioning based on isolated consultations with counsel who is absent when the interrogation resumes.

The exception to Edwards here proposed is inconsistent with Edwards' purpose to protect the suspect's right to have counsel present at custodial interrogation. It is inconsistent as well with Miranda, where we specifically rejected respondent's theory that the opportunity to consult with one's attorney would substantially counteract the compulsion created by custodial interrogation. We noted in Miranda that "[e]ven preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." 384 U. S., at 470 (citation omitted).

The exception proposed, furthermore, would undermine the advantages flowing from Edwards' "clear and unequivocal" character. Respondent concedes that even after consultation with counsel, a second request for counsel should reinstate the Edwards protection. We are invited by this formulation to adopt a regime in which Edwards' protection could pass in and out of existence multiple times prior to arraignment, *155 at which point the same protection might reattach by virtue of our Sixth Amendment jurisprudence, see Michigan v. Jackson, 475 U. S. 625 (1986). Vagaries of this sort spread confusion through the justice system and lead to a consequent loss of respect for the underlying constitutional principle.

In addition, adopting the rule proposed would leave far from certain the sort of consultation required to displace Edwards. Consultation is not a precise concept, for it may encompass variations from a telephone call to say that the attorney is en route, to a hurried interchange between the attorney and client in a detention facility corridor, to a lengthy in-person conference in which the attorney gives full and adequate advice respecting all matters that might be covered in further interrogations. And even with the necessary scope of consultation settled, the officials in charge of the case would have to confirm the occurrence and, possibly, the extent of consultation to determine whether further interrogation is permissible. The necessary inquiries could interfere with the attorney-client privilege.

Added to these difficulties in definition and application of the proposed rule is our concern over its consequence that the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not. There is more than irony to this result. There is a strong possibility that it would distort the proper conception of the attorney's duty to the client and set us on a course at odds with what ought to be effective representation.

Both waiver of rights and admission of guilt are consistent with the affirmation of individual responsibility that is a principle of the criminal justice system. It does not detract from this principle, however, to insist that neither admissions nor waivers are effective unless there are both particular and systemic assurances that the coercive pressures of custody were not the inducing cause. The Edwards rule sets forth a specific standard to fulfill these purposes, and we have declined *156 to confine it in other instances. See Arizona v. Roberson, 486 U. S. 675 (1988). It would detract from the efficacy of the rule to remove its protections based on consultation with counsel.

Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Since petitioner made a specific request for counsel before the interview, the police-initiated interrogation was impermissible. Petitioner's statement to Denham was not admissible at trial.

The judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

JUSTICE SOUTER took no part in the consideration or decision of this case.

JUSTICE SCALIA, with whom THE CHIEF JUSTICE joins, dissenting.

The Court today establishes an irrebuttable presumption that a criminal suspect, after invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney. This holding builds on foundations already established in Edwards v. Arizona, 451 U. S. 477 (1981), but "the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion." Arizona v. Roberson, 486 U. S. 675, 688 (1988) (KENNEDY, J., dissenting). Because I see no justification for applying the Edwards irrebuttable presumption when a criminal suspect has actually consulted with his attorney, I respectfully dissent.

*157 I

Some recapitulation of pertinent facts is in order, given the Court's contention that "[t]he case before us well illustrates the pressures, and abuses, that may be concomitants of custody." Ante, at 153. It is undisputed that the FBI agents who first interviewed Minnick on Saturday, August 23, 1986, advised him of his Miranda rights before any questioning began. Although he refused to sign a waiver form, he agreed to talk to the agents, and described his escape from prison in Mississippi and the ensuing events. When he came to what happened at the trailer, however, Minnick hesitated. The FBI agents then reminded him that he did not have to answer questions without a lawyer present. Minnick indicated that he would finish his account on Monday, when he had a lawyer, and the FBI agents terminated the interview forthwith.

Minnick was then provided with an attorney, with whom he consulted several times over the weekend. As Minnick testified at a subsequent suppression hearing:

"I talked to [my attorney] two different times and—it might have been three different times . . . . He told me that first day that he was my lawyer and that he was appointed to me and to not to talk to nobody and not tell nobody nothing and to not sign no waivers and not sign no extradition papers or sign anything and that he was going to get a court order to have any of the police—I advised him of the FBI talking to me and he advised me not to tell anybody anything that he was going to get a court order drawn up to restrict anybody talking to me outside of the San Diego Police Department." App. 46-47.

On Monday morning, Minnick was interviewed by Deputy Sheriff J. C. Denham, who had come to San Diego from Mississippi. Before the interview, Denham reminded Minnick of his Miranda rights. Minnick again refused to sign a *158 waiver form, but he did talk with Denham and did not ask for his attorney. As Minnick recalled at the hearing, he and Denham

"went through several different conversations about— first, about how everybody was back in the county jail and what everybody was doing, had he heard from Mama and had he went and talked to Mama and had he seen my brother, Tracy, and several different other questions pertaining to such things as that. And, we went off into how the escape went down at the county jail . . . ." App. 50.

Minnick then proceeded to describe his participation in the double murder at the trailer.

Minnick was later extradited and tried for murder in Mississippi. Before trial, he moved to suppress the statements he had given the FBI agents and Denham in the San Diego jail. The trial court granted the motion with respect to the statements made to the FBI agents, but ordered a hearing on the admissibility of the statements made to Denham. After receiving testimony from both Minnick and Denham, the court concluded that Minnick's confession had been "freely and voluntarily given from the evidence beyond a reasonable doubt," id., at 25, and allowed Denham to describe Minnick's confession to the jury.

The Court today reverses the trial court's conclusion. It holds that, because Minnick had asked for counsel during the interview with the FBI agents, he could not—as a matter of law—validly waive the right to have counsel present during the conversation initiated by Denham. That Minnick's original request to see an attorney had been honored, that Minnick had consulted with his attorney on several occasions, and that the attorney had specifically warned Minnick not to speak to the authorities, are irrelevant. That Minnick was familiar with the criminal justice system in general or Miranda warnings in particular (he had previously been convicted of robbery in Mississippi and assault with a deadly *159 weapon in California) is also beside the point. The confession must be suppressed, not because it was "compelled," nor even because it was obtained from an individual who could realistically be assumed to be unaware of his rights, but simply because this Court sees fit to prescribe as a "systemic assuranc[e]," ante, at 155, that a person in custody who has once asked for counsel cannot thereafter be approached by the police unless counsel is present. Of course the Constitution's proscription of compelled testimony does not remotely authorize this incursion upon state practices; and even our recent precedents are not a valid excuse.

II

In Miranda v. Arizona, 384 U. S. 436 (1966), this Court declared that a criminal suspect has a right to have counsel present during custodial interrogation, as a prophylactic assurance that the "inherently compelling pressures," id., at 467, of such interrogation will not violate the Fifth Amendment. But Miranda did not hold that these "inherently compelling pressures" precluded a suspect from waiving his right to have counsel present. On the contrary, the opinion recognized that a State could establish that the suspect "knowingly and intelligently waived . . . his right to retained or appointed counsel." Id., at 475. For this purpose, the Court expressly adopted the "high standar[d] of proof for the waiver of constitutional rights," ibid., set forth in Johnson v. Zerbst, 304 U. S. 458 (1938).

The Zerbst waiver standard, and the means of applying it, are familiar: Waiver is "an intentional relinquishment or abandonment of a known right or privilege," id., at 464; and whether such a relinquishment or abandonment has occurred depends "in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused," ibid. We have applied the Zerbst approach in many contexts where a State bears the burden of showing a waiver of constitutional criminal *160 procedural rights. See, e. g., Faretta v. California, 422 U. S. 806, 835 (1975) (right to the assistance of counsel at trial); Brookhart v. Janis, 384 U. S. 1, 4 (1966) (right to confront adverse witnesses); Adams v. United States ex rel. McCann, 317 U. S. 269, 275-280 (1942) (right to trial by jury).

Notwithstanding our acknowledgment that Miranda rights are "not themselves rights protected by the Constitution but. . . instead measures to insure that the right against compulsory self-incrimination [is] protected," Michigan v. Tucker, 417 U. S. 433, 444 (1974), we have adhered to the principle that nothing less than the Zerbst standard for the waiver of constitutional rights applies to the waiver of Miranda rights. Until Edwards, however, we refrained from imposing on the States a higher standard for the waiver of Miranda rights. For example, in Michigan v. Mosley, 423 U. S. 96 (1975), we rejected a proposed irrebuttable presumption that a criminal suspect, after invoking the Miranda right to remain silent, could not validly waive the right during any subsequent questioning by the police. In North Carolina v. Butler, 441 U. S. 369 (1979), we rejected a proposed rule that waivers of Miranda rights must be deemed involuntary absent an explicit assertion of waiver by the suspect. And in Fare v. Michael C., 442 U. S. 707, 723-727 (1979), we declined to hold that waivers of Miranda rights by juveniles are per se involuntary.

Edwards, however, broke with this approach, holding that a defendant's waiver of his Miranda right to counsel, made in the course of a police-initiated encounter after he had requested counsel but before counsel had been provided, was per se involuntary. The case stands as a solitary exception to our waiver jurisprudence. It does, to be sure, have the desirable consequences described in today's opinion. In the narrow context in which it applies, it provides 100% assurance against confessions that are "the result of coercive pressures," ante, at 151; it "`prevent[s] police from badgering a *161 defendant,'" ante, at 150 (quoting Michigan v. Harvey, 494 U. S. 344, 350 (1990)); it "conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness," ante, at 151; and it provides "`"clear and unequivocal" guidelines to the law enforcement profession,'" ibid. (quoting Arizona v. Roberson, 486 U. S., at 682). But so would a rule that simply excludes all confessions by all persons in police custody. The value of any prophylactic rule (assuming the authority to adopt a prophylactic rule) must be assessed not only on the basis of what is gained, but also on the basis of what is lost. In all other contexts we have thought the above-described consequences of abandoning Zerbst outweighed by "`the need for police questioning as a tool for effective enforcement of criminal laws,'" Moran v. Burbine, 475 U. S. 412, 426 (1986). "Admissions of guilt," we have said, "are more than merely `desirable'; they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Ibid. (citation omitted).

III

In this case, of course, we have not been called upon to reconsider Edwards, but simply to determine whether its irrebuttable presumption should continue after a suspect has actually consulted with his attorney. Whatever justifications might support Edwards are even less convincing in this context.

Most of the Court's discussion of Edwards—which stresses repeatedly, in various formulations, the case's emphasis upon the "right `to have counsel present during custodial interrogation,'" ante, at 152, quoting 451 U. S., at 482 (emphasis added by the Court)—is beside the point. The existence and the importance of the Miranda-created right "to have counsel present" are unquestioned here. What is questioned is why a State should not be given the opportunity to prove (under Zerbst) that the right was voluntarily waived by a suspect who, after having been read his Miranda rights twice and *162 having consulted with counsel at least twice, chose to speak to a police officer (and to admit his involvement in two murders) without counsel present.

Edwards did not assert the principle that no waiver of the Miranda right "to have counsel present" is possible. It simply adopted the presumption that no waiver is voluntary in certain circumstances, and the issue before us today is how broadly those circumstances are to be defined. They should not, in my view, extend beyond the circumstances present in Edwards itself—where the suspect in custody asked to consult an attorney and was interrogated before that attorney had ever been provided. In those circumstances, the Edwards rule rests upon an assumption similar to that of Miranda itself: that when a suspect in police custody is first questioned he is