POLICE, CITIZENS, THE CONSTITUTION, AND
IGNORANCE: THE SYSTEMIC VALUE OF
CITIZEN IGNORANCE IN SOLVING CRIME
by Arnold H. Loewy·
"It is by the goodness of God that in our country we have those three
unspeakably precious things: freedom ofspeech, freedom of conscience, and
the prudence never to practice either of them. " - Mark Twain I
The above aphorism comes close to describing the law of police-citizen
interaction. We substantially circumscribe police opportunity to conduct
searches and seizures by ordinarily requiring probable cause and a warrant, but
almost gleefully permit "consent" searches when everybody knows that the
searchees believed that they had no power to deny consent. 2 Similarly, we
have developed a whole panoply of confession limitations from Miranda 3 and
its progeny,4 but with rare exceptions,5 we positively rejoice when the suspects
do not understand their rights and consequently incriminate themselves. 6
In the pages that follow, this Essay, through the device of a simulated law
school class in advanced constitutional theory, will fIrst establish that in fact
the Supreme Court has purposely created ajurisprudence designed to allow the
police to exploit citizen ignorance.? A subsequent simulated class will
evaluate the reasons for this approach and whether there are better
alternatives. 8 In regard to the latter two points, my conclusions are tentative
and certainly subject to further analysis. Indeed, in regard thereto, I am more
interested in starting a debate than resolving this issue. In regard to the
primary thesis, however, an analysis of the cases will show that in fact the
Court has calibrated the value of ignorance into its jurisprudence and has
consciously calculated its value.
* Professor of Law, Texas Tech University School of Law, George R. Killam 1r. Chair of Criminal
Law, 2006. B.S., Boston University, 1961;J.D., Boston University, 1963; LL.M., Harvard University, 1964.
I.
MARK TwAIN, FOLLOWING THE EQUATOR: A JoURNEY AROUND THE WORLD ch. 20 (Harper
& Brothers 1899).
2. See, e.g., United States v. Mendenhall, 446 U.S. 544, 558-60 (1980); Schneckloth v.
Bustamonte, 412 U.S. 218, 227-34 (1973).
3. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).
4. See, e.g., Edwards v. Arizona, 451 U.S. 477, 484-85 (1981).
5. See, e.g., Michigan v. Jackson, 475 U.S. 625, 636 (1986).
6. Colorado v. Spring, 479 U.S. 564, 574 (1987); Moran v. Burbine, 475 U.S. 412, 423-24 (1986);
Oregon v. Elstad, 470 U.S. 298, 316 (1985); Minnesota v. Murphy, 465 U.S. 420, 429-34 (1984); Davis v.
United States, 328 U.S. 582, 593 (1946).
7. See infra Part I.
8. See infra Part II.
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The simulated class consists of the professor and five students: Michael
Sunshine, who typically puts a positive spin on Supreme Court decisions;
Mary Downer, who typically puts a negative spin on Supreme Court decisions;
Sam Sargeant, a fonner police officer who hopes to become a district attorney;
Sybil Wright, who interned as a public defender and hopes to have a career as
a criminal defense lawyer; and Margaret Middlebrooks, who typically takes
a balanced view of the Supreme Court's perfonnance.
I.
Professor: Welcome to Advanced Constitutional Theory. Our topic for today
is the Constitution and ignorance: Is it fair to say that a significant
constitutional goal is to stamp out ignorance?
Mr. Sunshine: I think so. The cases don't use that terminology, but it is their
import. One First Amendment theory describes the purpose of freedom of
speech as "a search for the best test of truth."g Consistent with that notion, the
Supreme Court has taken a dim view of book banning and has even protected
what would otherwise be obscenity if the material has serious literary, artistic,
political, or scientific value. 10
Furthennore, the Court has constantly stressed the importance of
education, describing it as "the most important function of state and local
governments." I1 Indeed, the Court has gone so far as to require public
education for undocumented aliens who don't even have the right to be here. 12
The core of the Court's reasoning was the primacy of stamping out
ignorance. 13
Ms. Downer: That's fine abstract theory, but what about the Court's record in
criminal procedure?
Mr. Sunshine: It's consistent with my hypothesis. In Boykin v. Alabama, the
Court refused to accept a guilty plea unless it was clear that the defendant
understood precisely what rights were being waived. 14 Indeed, Boykin is a
9. Abrams v. United States, 250 U.S. 616,630 (1919) (Holmes, J., dissenting).
10. Bd. of Educ. v. Pico, 457 U.S. 853, 871-72 (1982) (holding that a school board cannot remove
books from the library on the sole ground that the board disagrees with the ideas contained in the books);
Jacobellis v. Ohio, 378 U.S. 184, 191 (1964) (holding sexual material that has literary, scientific, or artistic
value cannot be considered obscene).
11. Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954).
12. Plyler v. Doe, 457 U.S. 202, 230 (1982).
13. Jd. at 221. "[E]ducation has a fundamental role in maintaining the fabric of our society. We
cannot ignore the significant social costs borne by our Nation when select groups are denied the means to
absorb the values and skills upon which our social order rests." Jd.
14. See Boykin v. Alabama. 395 U.S. 238, 238 (1969).
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shining example of the Court's unwillingness to allow our citizens to be hurt
by their own ignorance. IS
Ms. Downer: That's not the aspect of criminal procedure that I had in mind.
I'm talking about police-citizen contacts; for example, contacts that are
euphemistically called "consent" searches. 16
Mr. Sunshine: I'll grant you that in Schneckloth v. Bustamonte the Court did
not require the government to prove knowledge as a predicate to a finding of
voluntariness, but that hardly proves that the Court tolerates ignorance. 17 It
was simply a burden of proof issue. 18
Ms. Downer: To the contrary, Mr. Sunshine, Justice Marshall was clearly
correct in his dissent when he wrote,
The Court appears, however, to reject even the modest proposition that, if the
subject of the search convinces the trier of fact that he did not know of his
right to refuse assent to a police request for permission to search, the search
must be held unconstitutional. For it says only that "knowledge of the right
to refuse consent is one factor to be taken into account."19
Mr. Sargeant: I think that Ms. Downer is correct. When I was getting people
to consent to a search, I believe that most of them thought that they had to
consent or, at the least, that it would be worse for them if they didn't.
Ms. Wright: And I suppose that you never did anything to disabuse them of
that notion.
Mr. Sargeant: Of course not. I wanted them to feel like they had no choice.
That way they were going to let me search. It worked too. Out of the 150 cars
that I searched, twenty-three had evidence of a crime. If those people thought
that they had a choice, they would have never let me search, and they'd be
right back out on the street.
Ms. Wright: So you think that you had a right to rely on their consent, even
though you knew that they thought that they had to consent?
Mr. Sargeant: Sure, that's what the Supreme Court said in Schneckloth. 20
15.
16.
17.
18.
19.
20.
See id.
See SchneckloIh v. Bustamonte, 412 U.S. 218, 224 (1973).
See id. at 227.
Id.
Id. at 286 (Marshall, J., dissenting) (quoting majority opinion at 277).
See id. at 224 (majority opinion).
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Mr. Sunshine: I don't think that's exactly what the Court said. The Court
might be willing to let an occasional consent search slip by because the
searchee couldn't prove lack of knowledge even though she in fact lacked it.21
But that is a far cry from making lack of knowledge irrelevant.
Ms. Middlebrooks: I think that the Court is not merely concerned with an
inability to prove knowledge. I agree with Justice Marshall's suggestion that
even if the defendant did prove lack of knowledge, consent might still be valid
if the other factors showed that the consent was voluntary.22
Ms. Wright: What other factors? Consider Schneckloth itself. It's 1:30 in the
morning and six Hispanics are stopped for a minor traffic offense by an Anglo
police officer. 23 All six are asked-or ordered-to leave the car. 24 But the
ticketing policeman, Officer Rand, did not then ask for consent to search. 25
Rather, he waited for two backup officers to arrive. 26 Only then did he ask for
permission to search. 27 Does anybody really think that owner of the car would
believe that "no" was a viable option?28
Mr. Sargeant: I certainly hope not. That's the idea of a police presence. The
more consent searches we can undertake, the less we have to worry about
Fourth Amendment rules. 29
Professor: Do you think that the Court knowingly allowed a coerced consent
to be valid?
Mr. Sargeant: Yes, I do. Everybody in this room understands that there was
nothing voluntary about this consent.30 How could the Court fail to understand
it?
Ms. Downer: I'm afraid that he's right. I think the Court calculated this result.
If you have any doubts, ask yourself this: Has the Supreme Court ever
21. See id.
22. See id. at 285 (Marshall, J., dissenting).
23. [d. at 220. The ethnicity of the occupants of the car is never directly discussed in the opinion.
The three who are named, however, appear to have Hispanic surnames: Alcala, Gonzales, and Bustamonte.
The textual statement is at least a reasonable surmise; the ethnicity of Officer Rand is also surmised from
his name. See id.
24. See id.
25. [d.
26.
27.
28.
owner was
29.
[d.
[d.
Technically, Alcala, who gave permission to search, was the brother of the owner. See id. The
not present at the time. See id.
See id. at 227-28 (describing the usefulness of consent searches to police officers).
30. See id. at 220 (describing the circumstances under which Bustamonte consented).
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invalidated a consent search based, in whole or in part, on the defendant's lack
of knowledge?
Whole class (except Mr. Sunshine): No, it hasn't,
Mr. Sunshine: What about Bumper v. North Carolina?31 The Court clearly
held that because Bumper's grandmother believed that the police could search
with or without her consent, her consent was invalid. 32
Ms. Middlebrooks: And why did she believe that they could search with or
without her consent?
Mr. Sunshine: Because the police told her that they had a warrant,33
Ms. Middlebrooks: Precisely. Bumper stands for the proposition that when the
police assure a prospective searchee that they are empowered to search
regardless of consent, the consent is ineffective. 34 Schneckloth distinguished
Bumper on precisely that ground, by noting that in Schneckloth the officer
never claimed to be specifically relying on a warrant. 35
Ms. Downer: Like I said, has the Supreme Court ever invalidated a consent
search, in whole or in part, because of the defendant's lack of knowledge of
his right to say no?
Whole class: No, it hasn't,36
Ms. Downer: Furthermore, Watson, Mendenhall, Robinette, and especially
Florida v. Bostick have significantly expanded the right to conduct consent
searches. 37
Professor: How so?
31.
Bumper v. North Carolina, 391 U.S. 543 (1968).
32.
33.
[d. at 550.
[d. at 546.
34. See id. at 550.
35. See Schneckloth, 412 U.S. at 234.
36. Occasionally, state cases rely on state laws or constitutions and require informing defendants
that they were free to go before considering them to have voluntarily consented to a search. See, e.g., State
v. Robinette, 653 N.E.2d 695, 695 (Ohio 1995); Longstreet v. State, 592 So.2d 16, 16 (Miss. 1991); State
v. Johnson, 346 A.2d 66,66 (N.J. 1975).
37. See Florida v. Bostick, 501 U.S. 429, 434-37 (1991); United States v. Mendenhall, 446 U.S.
544,558-59 (1980); United States v. Watson, 423 U.S. 411, 424-25 (1976).
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Ms. Downer: In' Watson; unlike Schneckloth, the defendant had been fonnally
arrested and was in custody.38 That dichotomy seemed to be significant in
Schneckloth. 39 In Watson, however, the Court was amazingly cavalier about
the distinction:
[T]he fact of custody alone has never been enough in itself to demonstrate a
coerced confession or consent to search. Similarly, under Schneckloth, the
absence of proof that Watson knew he could withhold his consent, though it
may be a factor in the overall judgment is not to be given controlling
significance. There is no indication in this record that Watson was ... unable
in the face of a custodial arrest to exercise a free choice. He was given
Miranda warnings and was further cautioned that the results of the search of
his car could be used against him. He persisted in his consent. 40
The Court then concluded that to disallow the consent "would not be
consistent with Schneckloth and would distort the voluntariness standard that
we reaffinned in that case.,,41
Mr. Sargeant: And what's wrong with that? He was given Miranda warnings
and was told that anything found could be used against him. 42
Ms. Wright: That's just the point. His Miranda warnings told him that
anything that he said would be admissible against him and that he had a right
to remain silent.43 His search warnings told him that anything found would be
used against him, but not that he had a right to prevent the search. 44 That
dichotomy may not have gone unnoticed.
Mr. Sargeant: Are you seriously suggesting that Mr. Watson found a negative
pregnant in the search warnings because of the juxtaposition of the Miranda
warnings?
Ms. Wright: Well, not necessarily, but he might have. Certainly the
Schneckloth-Watson reasoning is designed to have that effect on people, and
you're not the least bit displeased about it.
38.
39.
40.
41.
42.
43.
44.
Watson, 423 u.s. at 424.
Schneckloth, 412 U.S. at 248.
Watson, 423 U.S. at 424-25 (emphases added).
Id. at 425.
Id. at 413.
Id. at 424-25.
See id.
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Mr. Sargeant: No, I'm not. Another shabby defrauder bites the dust, and the
police can get on with their business. Society wins; nobody loses. What's the
harm?
Ms. Wright: We all lose. When consent isn't really consent, the Fourth
Amendment, which protects us all, is shamefully debased. 45
Ms. Downer: It gets worse. In Mendenhall, even though the DEA officer
admitted that he would have not released the suspect unless she consented to
a search, the Court found the consent to be voluntary.46
Mr. Sunshine: Hold on there, Mary. Mendenhall was warned that she didn't
have to allow the search. 47 Indeed, the Court's emphasis on the warnings
could even be read as a softening of Schneckloth and Watson's disregard of
them. 48
Ms. Downer: You're misreading Mendenhall, Mike. Two consent issues were
raised in the case. 49 In the first one, she was "asked" to accompany the officers
to the DEA office, which according to the Court, she did '''voluntarily in a
spirit of apparent cooperation.'''50 You can't really believe that a twenty-two
year old black high school drop out, who had just been questioned by two
older white men, who became extremely nervous upon learning of their DEA
affiliation, and who was never told that she was free to leave (in part because
she wasn't), somehow believed that she was free not to go with the officers?51
45. See Draper v. United States, 358 U.S. 307, 314 (1959) (Douglas, J., dissenting); United States
v. Rabinowitz, 339 U.S. 56, 68 (1950) (Frankfurter, J., dissenting); Brinegar v. United States, 338 U.S. 160,
180 (1949) (Jackson, J., dissenting); Daniel L. Rotenberg, An Essay on Consent(less) Searches, 69 WASH.
U. L.Q. 175, 175 (1991); Arnold H. Loewy, Police-Obtained Evidence and the Constitution: Distinguishing
Unconstitutionally Obtained Evidence from Unconstitutionally Used Evidence, 87 MICH. L. REv. 907, 908
(1989).
46. United States v. Mendenhall, 446 U.S. 544, 559 (1980).
47.
48.
49.
50.
Jd.
See id.
Jd. at 548.
Jd. at 557 (quoting Sibron v. New York, 392 U.S. 40, 63 (1968».
51. See id. at 575 n.12 (White, 1., dissenting).
Agent Anderson testified on cross-examination at the suppression hearing:
"Q. All right. Now, when you asked her to accompany you to the DEA office for further
questioning, if she had wanted to walk away, would you have stopped her?
"A. Once I asked her to accompany me?
"Q. Yes.
"A. Yes, I would have stopped her.
"Q. She was not free to leave, was she?
"A. Not at that point."
Jd.
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Mr. Sunshine: The officers never told her that she had to come with them, nor
did they do anything to objectively manifest their intent to hold her if she
didn't,52 They even returned her airline ticket and driver's license.53
Ms. Downer: Do you really think that Ms. Mendenhall thought that she had a
choice?
Mr. Sargeant: Not if Agent Anderson was doing his job. A well-trained officer
like Agent Anderson knows how to exude authority. When he speaks, a
frightened high school dropout (and most anybody else) is going to listen.
Ms. Downer: Even if we were to believe that she freely accompanied the
agents to the DEA office, the consent to be stripped-searched was entirely
specious. 54 Although she was told she needn't consent to a search of her
person, she was not told that it would be a strip search until after she had
consented. 55 At that point, the agents acted as though she no longer had an
option because she had already exercised it in favor of being searched.56
Justice White's quip, "'Will you walk into my parlour?' said the spider to a
fly. (You may find you have consented, without ever knowing why)," was
entirely accurate.57
Ms. Middlebrooks: What bothers me most about this case is the Court's
willingness to find a valid consent because a reasonable person would have
thought she was free to leave, even though we know that Mendenhall was not
in fact free to leave and can surmise that she thought that she wasn't free to
leave. 58 Objectivity is fine, but this is ivory tower absurdity.
Professor: Ms. Downer, you seemed especially bothered by the Bostick case.
Why?
Ms. Downer: Because Bostick upheld a consent search that was more coercive
than any I have ever seen. 59 The police boarded a bus traveling from Miami
to Atlanta, temporarily stopped at Fort Lauderdale. 60 They were carrying guns
and announced that they were investigating drugS. 61 Two of the officers
52.
53.
[d. at 571.
[d. at 548 (majority opinion).
54.
59.
See id. at 566-67 (White, 1., dissenting).
[d. at 548 (majority opinion).
See id. at 548-49.
[d. at 577 n.15 (White, J., dissenting).
[d. at 559 (majority opinion).
See Florida v. Bostick, 501 U.S. 429, 431-32 (1991).
60.
61.
[d.
[d.
55.
56.
57.
58.
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approached Bostick for no reason that they were prepared to divulge and asked
to search his suitcase. 62 Upon his alleged consent, the police searched and
found drugs. 63 It's hard to imagine a more coercive setting, yet the Court had
no difficulty sustaining the search. 64
Mr. Sunshine: This time you are misreading the case. The Court did not
sustain the search. 65 Rather, it rejected the Florida Supreme Court's rule that
bus sweeps are per se unconstitutional. 66 Instead, it remanded the case to
determine whether there had been coercion. 67 Indeed, one of the salutary
features of the case was the strength of the Court's insistence on real
voluntariness. 68 Listen to this:
Clearly, a bus passenger's decision to cooperate with law enforcement
officers authorizes the police to conduct a search without first obtaining a
warrant only if the cooperation is voluntary. "Consent" that is the product of
official intimidation or harassment is not consent at all. Citizens do not
forfeit their constitutional rights when they are coerced to comply with a
request that they would prefer to refuse. The question to be decided by the
Florida courts on remand is whether Bostick chose to permit the search of his
luggage. 69
You've got to admit that the Court was taking the right to say "no" pretty
seriously.
Ms. Downer: The Court's actions don't match its rhetoric. 7o It gave no weight
to the obvious foolishness of a drug courier voluntarily consenting to a
search. 71 Instead, the Court disingenuously suggested that the appropriate
measure of the Fourth Amendment is an innocent person. 72
62. See id. at 442 (Marshall, J., dissenting).
[T)he police who conduct these sweeps decline to offer a reasonable, articulable suspicion of
criminal wrongdoing sufficient to justify a warrantless "stop" or "seizure" of the confronted
passenger. It does not follow, however, that the approach of passengers during a sweep is
completely random. Indeed, at least one officer who routinely confronts interstate travelers
candidly admitted that race is a factor influencing his decision whom to approach. Thus, the
basis of the decision to single out particular passengers during a suspicionless sweep is less
likely to be inaniculable than unspeakable.
[d. at 442 nJ (emphasis added) (citations omitted).
63. [d. at 431-32.
64. See id.
65. See id. at 439-40.
66. [d.
67. [d.
68. See id. at 438-39.
69. [d. at 438.
70. See id. at 437-40.
71. See id.
72. See id. at 438.
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Mr. Sunshine: Why do you say "disingenuously"?
Ms. Downer: Because if a guilty person would feel coerced into opening a
suitcase when it is so clearly against his interest, the innocent person, for
whom the Fourth Amendment is really designed, would feel even more
coerced. 73
Mr. Sargeant: I think you're right. I can't believe that the Court doesn't know
how much power a gun-toting police officer carries. It's inconceivable to me
that he really thought he had a choice.
Ms. Wright: Of course, he said that he never gave consent and that he was
never warned of his right not to. 74 But the trial judge believed the COp.75 Big
surprise. Even when a cop can't coerce consent, all he has to do is lie about
it and the courts will believe him.
Mr. Sargeant: I'll grant you that sometimes police officers do lie, but that's
wrong and shouldn't be necessary.76 If the Court is going to allow bus sweeps,
we can do just fine by telling the truth. And don't forget, a criminal like
Bostick, caught red-handed after stupidly consenting to a search, is also likely
to lie.
Ms. Wright: Yes, but if such inherently coercive enterprises weren't allowed,
less need for lying would exist. 77
Mr. Sargeant: To the contrary. The more the police feel hamstrung by silly
technicalities, the more they are likely to fabricate details designed to meet the
Court's requirements. 78 With Bostick-type leeway, there is less incentive to
lie. 79
Ms. Middlebrooks: I don't think that the issue is lying. Whatever the standards
are, police will have an incentive to embroider the facts to show that they were
73.
See Arnold H. Loewy, The Fourth Amendment as a Device for Protecting the Innocent, 81
MICH. L. REv. 1229, 1263-72 (1983).
74. See Bostick, 501 U.S. at 431-32.
75. Id. at 432.
76. See H. RICHARD UVILLER, TEMPERED ZEAL 11-18 (1988); Fred Cohen, Police Perjury: An
Interview with Martin Garbus, 8 CRIM. L. BULL. 363, 365-75 (1972); Stanley Z. Fisher, "lust the Facts.
Ma'am": Lying and the Omission ofExculpatory Evidence in Police Reports, 28 NEW ENG. L. REv. 1,6-17
(1993); Larry Wentworth, Comment, The XYZ Affair of Massachusetts Prosecutorial Misconduct: The
Curious Case ofCommonwealth v. Lewin-Was Dismissal Warranted?, 25 NEW ENG. L. REv. 1019, 102729 (1991).
77.
78.
79.
See Bostick, 501 U.S. at 440 (Marshall, J., dissenting).
See Loewy, supra note 73, at 1266-67.
See Bostick, 501 U.S. at 438.
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met, and defendants will have an incentive to show that they were not met.
The critical issues are whether the Court's decisions allow involuntary consent
to suffice, and if so, whether that is a consequence that is consciously desired
by the Court.
Professor: What do you think about that?
Mr. Sunshine: For sure, the Court does not intend to allow involuntary
consent. The language that I read you from Bostick could hardly be clearer. 8o
Ms. Middlebrooks: I don't think that the language can be taken that seriously.8l
In every one of the cases, it strains credulity to really believe that the victim
of the search was "voluntarily" consenting. In all of them, the police
domination was total, and it must have seemed to the searchees that they
would be worse off if they didn't consent. Moreover, Supreme Court Justices
are not stupid. If it is clear to us that the Court's jurisprudence encourages
involuntary consent, it must be clear to the Court, especially because the Court
could remove the problem by having every searchee sign the following
statement: "I have voluntarily consented to the police searching my (fill in
object), understanding that if! decline to consent it will not be held against me
and that (unless I have previously been arrested) I will be immediately allowed
to go on my way.,,82 There must be a reason that the Court has not required
such a statement, and the most logical reason is that the Court wishes to
maximize consent searches of people who have something to hide.
Professor: Does anybody disagree with that?
Whole class: No.
Ms. Downer: It really gets worse. In Ohio v. Robinette, the Court seemed to
agree that if the defendant was being unlawfully detained, consent would be
invalid. 83 Nevertheless, in a classic Rehnquist opinion, the Court held that
consent given after a traffic stop was completed, but before the detainee was
told the stop had ended, was permissible. 84
80.
8!.
82.
See id.
See id. at 441 (Marshall, J., dissenting).
See. e.g., United States v. Watson, 423 U.S. 411, 424 (1976) (covering the situation where the
defendant is already in custody).
83. Ohio v. Robinette, 519 U.S. 33, 45 (1996).
84. [d. at 50.
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Mr. Sargeant: So what's wrong with that? The traffic stop was over.8~ It's not
the officer's fault that the fonner detainee didn't know that. 86
Ms. Wright: Get real Sam, the cop said: "One question before you get gone:
[Alre you carrying any illegal contraband in your car? Any weapons of any
kind, drugs, anything like that?,,87 Do you really think a reasonable person
would feel free to say: "Sorry, I am gone. I'm not answering any of your
questions that are unrelated to driving"?
Mr. Sargeant: Well no. At least I hope not. Nevertheless, he was free to go,
so why criticize the opinion?88 The Court just doesn't like per se rules.
Ms. Wright: Well, I'm tempted to say that the Court is just fine with per se
rules that favor the police,89 but be that as it may, there is nothing per se about
the rule. All that Robinette asked for was some signal that he was free to gO.90
Officer Newsome gave exactly the opposite signal when he said the phrase
"before you get gone.,,91
Mr. Sunshine: Well, at least the lower courts don't seem to take Robinette very
seriously.92 In the recent case of United States v. Guerrero-Espinoza, the
Tenth Circuit didn't even mention Robinette in a case that appeared to be on
all fours with it.93 In fact, the dissent called the majority's attention to
Robinette, but the majority felt no need to discuss the case. 94
Ms. Middlebrooks: It's a sad state of affairs that the best thing that can be said
about a Supreme Court case is that at least some of the lower courts ignore it.
If that's the case, the Court ought to either rethink its position or summarily
reverse lower courts for ignoring its directives. In this case, I think the Court
should rethink its position because its result is so far out of line with a sensible
consent search jurisprudence.
85.
[d.
86.
See id. at 38-39.
[d. at 35-36 (emphasis added).
See id. at 40.
89. See, e.g., Maryland v. Wilson, 519 U.S. 408, 408 (1997). Wilson, decided nearly
contemporaneously with Robinette, upheld a per se rule that police who stop a car may always order the
passenger out of the car during a traffic stop despite the fact that a more nuanced rule would have served
the State's interest just fine. [d.
90. See Robinette, 519 U.S. at 40.
91. See id. at 35.
92. See United States v. Guerrero-Espinoza, 462 F.3d 1302, 1311 (10th Cir. 2006).
87.
88.
93.
See id.
94.
[d. at 1311.
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Professor: Do consent searches stand alone? Are they an isolated exception
that proves the rule of the Constitution's opposition to ignorance, or is there
more?
Ms. Downer: I think that there is more. Many confessions are obtained
through ignorance to the delight of the Court. 95
Mr. Sunshine: How can you say that, Mary? Miranda was explicitly
developed to prevent ignorance. 96 Furthermore, it was largely adopted to
implement Justice Goldberg's stirring admonition from Escobedo v. Illinois:
[N]o system of criminal justice can, or should, survive if it comes to depend
for its continued effectiveness on the citizens' abdication through
unawareness of their constitutional rights. No system worth preserving
should have to fear that if an accused is permitted to consult with a lawyer,
he will become aware of, and exercise, these rights. If the exercise of
constitutional rights will thwart the effectiveness of a system of law
enforcement, then there is something very wrong with that system.97
Ms. Downer: If the development of the law stopped with Miranda in 1966, I
would agree with you. Unfortunately, much of Miranda's illegitimate progeny
are to the contrary.
Mr. Sunshine: For example?
Ms. Downer: New York v. Quarles. 98
Mr. Sargeant: Hold on there, Mary. That was an emergency situation.99 What
did you expect the police to do-give the stupid Miranda warnings and forget
about the danger of the gun?IOO If this is what you mean by illegitimate
progeny, it is that very progeny that renders an illegitimate doctrine marginally
tolerable.
Ms. Wright: I'll answer that Sam. First of all, there was in fact no emergency
because Officer Kraft correctly believed that he had the situation under
control. 101 Second, to the extent that there was an emergency, it related only
95. See, e.g., Robinette, 519 U.S. at 33; New York v. Quarles, 467 U.S. 649, 653 (1984); GuerreroEspinoza, 462 F.3d at 1302.
96. See Miranda v. Arizona, 384 U.S. 436 (1966).
97. Escobedo v.lllinois, 378 U.S. 478, 490 (1964).
98. Quarles, 467 U.S. at 649.
99. See id. at 655-56.
100. See id. at 652.
101. See id. at 676 (Marshall, 1., dissenting). The Court's somewhat disingenuous answer to this
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to obtaining the gun, not obtaining Quarles's incriminating statement about the
gun. 102
Ms. Downer: Furthermore, the very reason for not giving Miranda warnings
was to maximize the suspect's ignorance. The Court was not concerned with
the eighteen seconds or so that it takes to read the Miranda card. Rather, the
Court feared that if he knew his rights, he might invoke them. 103
Consequently, the Court did not require that his rights be read. 104 If that
doesn't constitute putting a premium on ignorance, I don't know what does.
Mr. Sargeant: That's ridiculous. Every school child knows the Miranda
warnings. Do you really believe that Ben Quarles didn't know them?
Ms. Wright: Let us assume, contrary to the theory of Miranda, that Ben
Quarles knew the Miranda litany perfectly. lOS Indeed, assume that you were
in Quarles's position. You are surrounded by four armed policemen. You
have been arrested and handcuffed by one of the policemen, who has not given
you Miranda warnings. 106 You know that you are supposed to get the
warnings, but instead you get a stem question from the armed police officer,
asking "Where is the gun?,,107 Wouldn't you assume that this guy means
business, and that if you know what's good for you, you better tell him?
Mr. Sargeant: I'm sure that Officer Kraft meant to convey that impression. I
can't imagine that he wanted Quarles to think that he had a choice. But why
should a scumbag like that have a choice? He raped that woman at gunpoint.
He damned well should have to tum over the gun.
Ms. Middlebrooks: Ignoring the fact that he was not even charged with, much
less convicted of, rape, the point of the Fifth Amendment is that individuals
cannot be compelled to incriminate themselves. lOS In a true emergency
situation, there is nothing wrong with compelling a person to provide
police testimony was that a reasonable officer would have believed that there was an emergency under the
circumstances described by Officer Kraft and that reasonable belief is more important than subjective belief
or even actuality. See id. at 655-56 (majority opinion).
102. See id. at 657.
103.
104.
105.
106.
107.
108.
See
See
See
See
id.
id.
Miranda v. Arizona, 384 U.S. 436, 498-99 (1966).
Quarles, 467 U.S. at 674 (Marshall, J., dissenting).
[d. at 675.
Miranda, 384 U.S. at 479. The police arrested Quarles for rape based on the complaint of his
victim, but for reasons which are unexplained, the State prosecuted him only for unlawful possession of a
firearm. Quarles, 467 U.S. at 653 n.2.
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information so long as you don't use that information or its fruits against the
defendant. 109
Mr. Sargeant: But the confession wasn't found to be involuntary. If on remand
it were found to be involuntary, it would be inadmissible. However, as we all
know from our discussion of consent searches, lack of knowledge does not
necessarily render either consent or a confession involuntary.
Ms. Middlebrooks: And as we all know, especially you, lots of voluntary
confessions are not really voluntary.
Professor: Does anybody think that Quarles's confession was voluntary in the
dictionary sense of the word?
Class: No.
Professor: Was this a calculated effort on behalf of the Court to allow the
police to convey the impression that the suspect was required to answer?
Ms. Middlebrooks: It seems that way to me.
Professor: Anyone disagree?
Remainder of class: No.
Professor: Are there other illustrations of calculated ignorance in Miranda
cases?
Ms. Wright: Yes. Moran v. Burbine coined one of the most pernicious phrases
in the law of police-citizen contact: "[W]e have never read the Constitution
to require that the police supply a suspect with a flow of information to help
him calibrate his self-interest in deciding whether to speak or stand by his
rights." 110
Mr. Sargeant: What's so pernicious about that? Normatively speaking, it is an
entirely accurate statement of the law. How can the police be expected to
109. See Kastigar v. United States, 406 U.S. 441, 457 (1972). "When police askcuslodial questions
without administering the required warnings, Miranda quite clearly requires that the answers received be
presumed compelled and that they be excluded from evidence at trial." Quarles, 467 U.S. at 664 (O'Connor,
J., concurring in part and dissenting in part).
110. Moran v. Burbine, 475 U.S. 412, 422 (1986).
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always know what might influence a particular suspect?111 Besides, it's our
job to get confessions, not prevent them. 112
Ms. Wright: I don't disagree with the fIrst part of your statement in the
abstract. In regard to the second part, your statement is woefully incomplete.
It may be the job of the police to obtain confessions, but it's the Court's job
to ensure their voluntariness. "3 If the Miranda warnings truly dissipated all
(or even substantially all) of the coercion inherent in custodial interrogation,
there would be something to be said for not requiring other means of
dissipation. 114 But we all know better. When Butch Burbine was confronted
by those police officers at the station, you can't really believe that the Miranda
warnings dissipated the coercion that he felt. 1I5 Surely hearing that there was
a lawyer hired by his sister to represent him would have eliminated more
coercion than simply learning that he had some abstract right to counsel. 116
Mr. Sargeant: Yes, and treating him as an honored guest of the State of Rhode
Island would have eliminated even more coercion. The point of the Fifth
Amendment, and even Miranda, is not to eliminate all coercion. "7 It is simply
to reduce coercion to an acceptable level. ll8 The Miranda compromise
certainly does that. 119 There is hardly a need to go beyond Miranda. After all,
this is criminal procedure, not a fox hunt, and we do want to convict the
guilty.120 Poor Butch Burbine, after all, did commit a vicious murder of a
defenseless woman. 121
Professor: Ms. Wright, what did you mean when you said that you didn't
disagree in the abstract with Burbine's statement about the police being under
a duty to provide the suspect with a constant flow of information to help him
calibrate his decision as to whether or not to speak?122
Ms. Wright: I meant that the statement was correct as far as it went, but that
particular statement has been used as an excuse to allow the police to exploit
the defendant's ignorance. 123
Ill.
112.
113.
114.
115.
116.
117.
118.
119.
See id. at 427.
See id. at 426.
See Miranda, 384 U.S. at 506 (Harlan, J., dissenting).
See Quarles, 467 U.S. at 685 (Marshall, J., dissenting).
See Burbine, 475 U.S. at 416.
See id. at416-17.
See Quarles, 467 U.S. at 654.
See id.
See id.
120.
121.
JOSEPH D. GRANO, CONFESSIONS, TRUTH, AND THE LAw 28-29 (1993).
122.
123.
See Burbine, 475 U.S. at 414-15.
See id. at 422.
See id.
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1093
Professor: Do you have any illustrations?
Ms. Wright: Regrettably I do. Several post-Burbine decisions, sustaining the
admissibility of a confession over a Miranda objection, have cited Burbine's'
language. Among others are Colorado v. Spring and Duckworth v. Eagan. 124
Mr. Sunshine: What's so bad about Spring, Sybil? The defendant was fully
warned of his right to silence and of his right to counsel. 125
Ms. Wright: But he wasn't told that he was a murder suspect. 126 He thought
that he was just being questioned on a fIrearms violation. 127 If he had known
that he was suspected of murder, he might have been more on his guard. In
fact, he might have asked for a lawyer.
Mr. Sargeant: And we all know what that means. Once he asks for a lawyer,
no confession that matters will be obtained. 128
Ms. Wright: So if we can keep him ignorant of what he is facing, we might be
able to obtain a confession that would have been unobtainable were he aware
of all of the circumstances?
Mr. Sargeant: Precisely.
Mr. Sunshine: Hold it, both of you. Spring did not approve of a suspect's
ignorance. 129 The Court merely tolerated it. 130
Professor: What do you perceive to be the difference between tolerate and
approval?
Mr. Sunshine: Tolerance is merely acceptance. Approval implies desire.
Professor: How do you tell the difference?
124.
Duckworth v. Eagan, 492 U.s. 195,204 (1989); Colorado v. Spring, 479 U.S. 564, 578 (1987).
125.
126.
127.
128.
Spring, 479 U.S. at 578.
ld. at 567.
See id.
See Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring in part and dissenting in
part). "Any lawyer worth his salt wiu teU the suspect in no uncertain terms to make no statement to police
under any circumstances." ld.
129. Spring, 479 U.S. at 576-77.
130.
See id.
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Mr. Sunshine: In Spring, the Court recognized that the Fifth Amendment was
concerned with compelled self-incrimination. l3I Awareness of the crimes
being investigated has nothing to do with compulsion. 132 Consequently,
Spring's ignorance was not relevant to the legal issue. 133 It's not that the Court
consciously desired Spring's ignorance; ignorance was simply irrelevant to the
legal issue. l34 And, of course, the Court doesn't care about an irrelevancy.
Ms. Downer: Be serious, Mike. The Court said: "The additional
information ... could affect only the wisdom of a Miranda waiver, not its
voluntary and knowing nature.,,135 If a waiver has to be knowing, how can
knowledge be irrelevant?
Mr. Sunshine: Knowledge and wisdom are not the same thing. One can
knowingly waive his right to be free from responding to questions without
doing it wisely.
Ms. Downer: But how can one knowingly waive his right to be free from being
questioned about murder when he didn't even know that anyone intended to
question him about murder?136
Mr. Sunshine: He knowingly agreed to be questioned. 137 If he didn't like the
topic of the question, he was free to terminate questioning at any time. 138
Ms. Downer: But wouldn't his decision have been more intelligent if he had
known to what crime the questions were directed?
Mr. Sunshine: Yes, but that is not necessary.139
Mr. Sargeant: And for a very good reason. The whole point of the Fifth
Amendment is to prevent coercion. 14O The whole Miranda litany, with the
possible exception of the right to remain silent, is prophylactic.141 The fact that
with greater knowledge, one could more intelligently exercise his prophylactic
13 I. See id. at 573.
132. [d. at 574.
133. [d.
134. See id.
135. [d. at 565 (emphasis added).
136. See id. at 569.
137. [d. at 567-68.
138. [d.
139. [d. at 576-77.
140. Miranda v. Arizona, 384 U.S. 436, 444 (1966).
141. Oregon v. Elstad, 470 U.S. 298, 305 (1985); New York v. Quarles, 467 U.S. 649, 654 (1984);
Michigan v. Tucker, 417 U.S. 433. 444 (1974).
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rights is immaterial. 142 The Court probably got off the track in Miranda when
it created these prophylactic rights in the first place. Cases like Spring help to
rein in the Court's mistake in Miranda. 143 So long as the defendant
understands that he need not incriminate himself, the less he knows, the better.
Ms. Middlebrooks: So you agree that citizen ignorance is a conscious policy
of the Supreme Court. 144
Mr. Sargeant: So long as it does not affect Fifth Amendment values. And it
clearly did not in Spring.
Ms. Middlebrooks: What about Duckworth v. Eagan?145
Mr. Sargeant: Once again, the Court was simply reining in the excessive
prophylaxis of Miranda. 146 To be sure, Gary Eagan was told that he would get
a lawyer "if and when he went to court," which implied to him that he could
not have a lawyer during questioning unless he could afford one. 147
Technically this violation of the Miranda prophylaxis was totally consistent
with the Fifth Amendment. 148 Eagan was told that if he did not wish to answer
questions without a lawyer present he could stop answering at any time. 149
That warning clearly protected his right to be free from compulsion. 150
Ms. Middlebrooks: But the point of Miranda was that a lawyer was necessary
to prevent the inherent coercion of custodial interrogation from overbearing
a suspect's will. 151 Consequently, the "if and when" language is clearly legally
incorrect information.
Mr. Sargeant: It's really a matter of semantics. In one sense, the information
is entirely correct. If the state doesn't provide an attorney, -it can't question
Eagan unless he agrees to be questioned without one. 152 And that is precisely
what happened. 153
142.
143.
144.
145.
146.
147.
148.
149.
150.
151.
152.
153.
Spring, 479 U.S. at 576-77.
See id. at 564; Miranda, 384 U.S. at 436.
Spring, 479 U.S. at 572-75.
Duckworth v. Eagan, 492 U.S. 195 (1989).
See id. at 202-05.
[d. at 198.
See id. at 203-04.
See id. at 198.
See id. at 203-05.
See id. at 202.
See id. at 204.
[d.
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Ms. Downer: Semantics indeed. Much of the Court's jurisprudence is nothing
but a semantic trap.
Mr. Sargeant: What do you mean?
Ms. Downer: If a defendant says, "I don't want to talk to you," the police are
free to subsequently approach her to see if she has changed her mind. 154 But
if she says, "I want an attorney," the police may not approach her to see if she
has changed her mind. 155 Surely your average Jane Defendant is not going to
be aware of that dichotomy. Consequently, the law allows the police to take
advantage of a defendant's unfortunate choice of words in implementing her
rights.
Mr. Sargeant: That's not so much the law taking advantage of her ignorance
as it is her right to take advantage of loose language from Miranda. To the
extent that any anomaly exists, it is the right to absolutely cutoff questions by
inadvertently asking for a lawyer rather than for termination of questioning. 156
Ms. Middlebrooks: Even if I bought your conclusion (and not everyone does),
the law still allows a defendant to be treated less favorably because of his
ignorance.
Mr. Sunshine: Even if that's true, it is surely an inadvertent byproduct of a
dichotomy that is justifiable or at least defensible on other grounds. Surely the
Court did not intentionally exalt ignorance.
Ms. Downer: Well maybe not this situation, but Davis v. United States does
precisely that. 157
Mr. Sargeant: There was no miscommunication in Davis. 15s Davis
ambiguously said: "Maybe I should talk to a lawyer."159 The investigating
officers, making it clear that they would not question him further if he desired
a lawyer, asked for clarification. l60 Davis responded: "No, I don't want a
lawyer.,,161 Only then did questioning continue. 162 The police in no sense took
advantage of his ignorance.
154.
ISS.
156.
157.
158.
159.
160.
161.
162.
See Michigan v. Mosley, 423 U.S. 96, 106-07 (1975).
See Edwards v. Arizona, 451 U.S. 477, 479 (1981).
See id.
Davis v. United States, 512 U.S. 452, 455 (1994).
See id.
[d.
[d.
[d.
[d.
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Ms. Downer: You are perfectly correct in what you say, which is why the
Davis opinion is such a travesty. By simply affinning that the police acted
properly in clarifying Davis's ambiguity, the case could have ended with
everyone happy--except Mr. Davis. The government would have had its
conviction, and the police would have been rewarded for their prudence in
clarifying the ambiguity. Instead, the Court, totally unnecessarily, decided that
there was no need to ask for clarification. 163 In future cases when a defendant
ambiguously requests counsel, the Court told the police that in future cases,
they need not even bother to clarify his request, but instead can ignore it. 164
Now, why do you suppose that the Court did that?
Mr. Sunshine: Maybe the Court decided more than it had to, but the whole
point of Miranda is to create rules of clarity and simplicity. 165 Creating greater
simplicity is legitimate, especially in regard to Miranda.
Ms. Downer: Notwithstanding the Court's rhetoric to the contrary, Davis
hardly creates simplicity.l66 The concept of ambiguity is itself ambiguous.
Consequently, future defendants will argue that their ambiguous requests for
counsel were clear. 167 Nobody will know whether the request for counsel was
sufficiently clear until a court so declares. 168 Whereas, if the Supreme Court
required police to clarify the ambiguity as they did in Davis, all of that
uncertainty could be avoided. 169
Ms. Wright: I don't disagree with you Mary, but you're missing the more
fundamental issue. The Court's rule is systematically discriminating against
the inarticulate and unassertive personality.170 The person who prefaces a
request with "maybe" or "do you think I should" is, if anything, more in need
of the guiding hand of counsel. 171 Furthermore, as Professor Ainsworth has so
powerfully demonstrated, unassertive people disproportionately tend to be
minorities and women. 172
Mr. Sargeant: Once again Sybil, your heart's bleeding for the wrong person.
What about Keith Shackleford, the man Davis so brutally murdered?173 What
163. See id. at 461-62.
164. See id.
165. Miranda v. Arizona, 384 U.S. 436, 478-79 (1966).
166. See Davis, 512 U.S. at 458-62.
167. See id. at 460.
168. See id.
169. See id.
170. See id. at 469-70 (Souter, J., concurring).
171. Id.
172. Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in Police
Interrogation, 103 YALELJ. 259, 261 (1993).
173. See Davis, 512 U.S. at 454-55.
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about Shackleford's family? Are you so caught up in Miranda's prophylactic
rhetoric that you forget that you're dealing with a vicious killer?
Ms. Wright: For good reasons, the Constitution applies even to vicious killers.
And before you get too lost in the prophylaxis of Miranda, you should take
Justice Souter's warning in Davis seriously.174 He warned that "it is easy,
amidst the discussion of layers of protection, to lose sight of a real risk in the
majority's approach, going close to the core of what the Court has held that the
Fifth Amendment provides."m Justice Souter went on to explain what he
meant:
When a suspect understands his (expressed) wishes to have been ignored (and
by hypothesis, he has said something that an objective listener could
"reasonably," although not necessarily, take to be a request), in contravention
of the "rights" just read to him by his interrogator, he may well see further
objection as futile and confession (true or not) as the only way to end his
interrogation. 176
To illustrate what Justice Souter meant, imagine that the interrogation of
Davis went something like this:
Interrogator: Did you kill Keith Shackleford?
Davis (really wanting an attorney): Maybe I should see an attorney.
Interrogator: I repeat, did you kill Keith Shackleford?
Davis: I'm thinking that maybe I should talk to an attorney before I answer
you.
Interrogator (in a louder and angrier tone): I said, DID YOU KILL KEITH
SHACKLEFORD!?
Davis (believing now that he must answer): Yes I did. 177
Ms. Middlebrooks: What really seems strange about requiring such a powerful
assertion of the right to counsel is the imprecise manner in which a person can
waive counsel. 178 For example, in North Carolina v. Butler the Court assumed
a waiver of the right to counsel from a poorly educated, moderately literate
defendant, who was never asked if he waived his right to counsel and never
said that he did. 179 The Court presumed such waiver from his answering
questions after he read his rights and agreed to answer questions but refused
174.
175.
176.
177.
Id. at 472 (Souter, J., concurring).
Id.
Id. at 472-73.
See id. (explaining the likelihood of a suspect giving forced answers when he believes the
interrogators have ignored his wishes).
178. See North Carolina v. Butler, 441 U.S. 369, 375-76 (1979).
179. Id. The dissent questioned whether it was even clear that he was moderately literate. Id. at 378
(Brennan, 1., dissenting).
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to sign anything. 180 I have to at least wonder why the Court accepted such an
ambiguous waiver but won't even compel clarification of an ambiguous
request for counsel. I81
Mr. Sunshine: The Court did not purport to accept an ambiguous waiver in
Butler. 182 In the Court's view, a waiver could be clear even if it wasn't
explicit. 183 Indeed, the Court didn't even uphold the waiver; it merely
remanded the case to determine whether the waiver was clear even though it
wasn't explicit. l84 The Court wouldn't have accepted a waiver unless it was
clear. 18s
Mr. Sargeant: More importantly, the Court is consistently demanding
precision, or the right is lost. If the defendant has been told that he has the
right to counsel, what's wrong with requiring him to clearly assert that right,
or else it will be deemed waived? Indeed, such a rule makes Miranda
tolerable.
Ms. Wright: Tolerable? What such a requirement does is render the right
useless for those who need it the most-the least sophisticated. Furthermore,
I think the Court meant to allow the unsophisticated to be disadvantaged by
their ignorance.
Ms. Downer: That isn't even the worst of it. At least in Davis and Butler, the
defendants had a chance. In Minnesota v. Murphy, the Court allowed the state
to take advantage of the defendant's ignorance of his rights. 186
Mr. Sunshine: How do you know that the defendant was ignorant?
Ms. Downer: Get real Mike. The man was on probation. 18? The terms of his
probation required him to be truthful with his probation officer "in all
matters.,,188 Murphy's probation officer, totally to his surprise, confronted him
with a confession of a prior rape and murder Murphy allegedly made to a
180.
181.
[d. at 370-71 (majority opinion).
Compare Davis, 512 U.S. at 461-62 (refusing to compel police officers to seek clarification of
a suspect's waiver of Miranda rights), with Butler, 441 U.S. at 375-76 (accepting a suspect's ambiguous
waiver of Miranda rights).
182. Butler, 441 U.S. at 375-76.
183. See id.
184. [d. at 376.
185. See id. at 373 (holding that although there is a strong presumption against waiver when a
defendant is silent, a prosecutor may, in some cases, rebut the presumption if the court can clearly infer
waiver from the actions and words of the interrogee).
186. See Minnesota v. Murphy, 465 U.S. 420, 431-32 (1984).
187. [d. at 422.
188. [d. (quoting Petition for Writ of Certiorari, Murphy, 459 U.S. 1145 (No. 82-827».
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counselor during treatment that was required as a condition of his probation. 189
Despite the obviously incriminating potential of this confrontation, the
probation officer made no effort to inform Murphy of his right to silence. l90
Mr. Sunshine: Even so, the Court held that Murphy had the right to silence and
that if he invoked that right, Minnesota could not have revoked his
probation. 191
Ms. Downer: How wonderful for him. But how could he have known if
nobody told him?
Mr. Sunshine: Justice White answered that question. 192 He informed us that
"'[a]t this point in our history virtually every schoolboy is familiar with the
concept, if not the language of, the [privilege against self-incrimination]."'193
From this, Justice White deduced that "[i]fMurphy did harbor a belief that his
probation might be revoked for exercising the Fifth Amendment privilege, that
belief would not have been reasonable."I94
Ms. Wright: If Marshall Murphy was unreasonable in assessing his dilemma,
then the Solicitor General of the United States was also unreasonable in his
evaluation of the case. 195 As Justice Marshall told us in his dissent, the
Solicitor General of the United States thought that Murphy was compelled to
incriminate himself or risk losing probation. 196 If the Solicitor General
couldn't anticipate the Court's holding in Murphy, how on earth could Murphy
have anticipated it?
Ms. Middlebrooks: I don't think that the Court really believes that Murphy
knew he was free to not incriminate himself. Ijust don't think that it cared.
The societal value of convicting a murderer was more important to the Court
than whether or not the murderer understood that he didn't have to incriminate
himself.
Mr. Sargeant: And a darned good thing, too.
189.
190.
191.
192.
193.
194.
195.
196.
[d. at 423-24.
See id. at 425.
See id. at 438.
Seeid.at437.
[d. (quoting Michigan v. Tucker, 417 U.S. 433, 439 (1974».
[d. at 438.
See id. at 457-58 (Marshall, J., dissenting).
[d. at 458 n.23.
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Ms. Middlebrooks: And, of course Murphy doesn't stand alone. It is part of a
more general rule that unless the defendant is in police custody, he gets no
warnings at all.
Mr. Sargeant: And why should he? If he's not in custody, no coercion exists.
Ms. Wright: Yeah, right. Like you really believe that people are not coerced
even if technically they were not in custody. But more importantly, if we are
concerned about ignorance, coercion vel non should be irrelevant. The point
is that the suspect really did not understand his rights.
Mr. Sunshine: When did that happen?
Ms. Wright: Oregon v. Mathiason is the paradigm example. 197 The
investigating officer suspected Mathiason of a burglary because the victim
suspected him due to his status as a parolee and his close association with the
victim's son. Consequently, he asked to meet him at the police station, told
him that he was not under arrest, and falsely told him that his fingerprints had
been found at the scene of the crime, whereupon Mathiason confessed. 198
Ms. Downer: Yeah, and the real irony is even if the statement about his
fingerprints were true, it would not prove that he did it. 199 As a friend of the
victim's son, he had a totally innocent explanation for the prints being there.
Mr. Sargeant: So what's the problem? A two-bit petty burglar gets his
conscience tweaked, confesses to a crime he committed, and everyone is better
off.
Ms. Wright: Sure, if you think people shouldn't know their rights. The
Mathiason principle was really abused in Yarborough v. Alvarado, in which
the parents of a seventeen year old with limited experience with the police was
asked by the police to bring their son in for questioning. 2°O Accused of being
an aider and abettor to a murder committed by one of his friends, young
Alvarado was denied the opportunity to have his parents with him during
questioning. Eventually, the coercive atmosphere of the police station did its
work, and Alvarado implicated himself without ever receiving Miranda
warnings. The Supreme Court thought that was just fine. 201
197.
Oregon v. Mathiason. 429 U.S. 492 (1977).
198.
[d. at 496-97.
199.
200.
20 I.
Seeid.at497.
Yarborough v. Alvarado, 541 U.S. 652, 656 (2004).
[d. at 656-58.
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Mr. Sunshine: Not quite. The Court emphasized that this was a habeas corpus
proceeding and that it did not want to adopt a new rule. 202
Ms. Downer: Get real, Mike. Do you really think that if the case came up on
direct appeal, the result would be different? I truly doubt it. The Court only
accepts Miranda if it can be tightly cabined.
Professor: Okay, we're almost at the end of the hour. Any more illustrations
of the Court condoning suspect ignorance?
Ms. Wright: Yes, Oregon v. Elstad is one of the most blatant. 203 After
obtaining an unwarned and therefore inadmissible confession against Elstad,
the police gave him Miranda warnings. 204 Thereafter, they obtained an
additional confession against him without telling him that his first confession
was inadmissible. 205
Mr. Sargeant: And for good reason, too. The police didn't know whether or
not they needed to warn Elstad the first time. 206 He was questioned in his
home under noncoercive circumstances before the police told him that he was
under arrest.207 If Oregon hadn't conceded the point, the Court may well have
held Elstad's first confession to be admissible on the ground that it was not
obtained pursuant to custodial interrogation.208
Ms. Downer: If the Elstad rationale was limited to the difficulty police have
in ascertaining when to tell the defendant that his prior confession was
inadmissible, I would have less trouble with the decision. Unfortunately, in
this precursor to Moran v. Burbine, the Court said: ''This Court has never
embraced the theory that a defendant's ignorance of the full consequences of
his decisions vitiates their voluntariness."209 Thus, Elstad stands as yet another
illustration of the Court's satisfaction with citizen ignorance.
Professor: We're just about at the end of the hour. For our next class let us
focus on why the Court might wish to allow the police to take advantage of a
suspect's ignorance.
202.
203.
204.
205.
206.
207.
208.
[d. at 665.
See Oregon v. Elstad, 470 U.S. 298,301-02 (1985).
[d.
[d.
See id. at 300-01.
[d. at 301.
Compare Orozco v. Texas, 394 U.S. 324, 327 (1969) (custody), with Beckwith v. United States,
425 U.S. 341, 345 (1976) (no custody). Arguably Elstad, which is in between the two cases, is closer to
Beckwith than to Orozco. See Beckwith, 425 U.S. at 345; Orozco, 394 U.S. at 327.
209. Elstad, 470 U.S. at 316.
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n.
Professor: Our first topic for today is why the Supreme Court values ignorance
as much as it does.
Mr. Sunshine: I think it is because the Court is balancing two factorsmaximizing citizens' rights and solving crime. By not making citizens fully
aware of their rights, the Court is able to maximize the rights that it does give.
Ms. Wright: And what good does that do? If a citizen doesn't know that she
has a right, for all practical purposes, she doesn't have it?
Mr. Sargeant: Maybe the Court just shouldn't have given those rights in the
first place. I agree with Sybil that for all practical purposes, citizens don't
have rights that they don't know about. Frankly, I think that citizens have too
many rights, and if there are a few that they don't know about and can't
exercise, that just gets the balance a little better.
Professor: Do you really think that the Court would remove rights if citizens
actually knew about them?
Ms. Downer: I do. I think that the Court only finds rights tolerable because it
knows that most people don't know about them and won't exercise them. Take
Georgia v. Randolph for example. 2lO The Court piously proclaimed the
importance of the right to refuse consent even after Randolph's wife had
already given it. 2I1 Do you rt~ally think the Court would have so held if
everybody understood their right to just say "no"?
Mr. Sunshine: Of course they would, Mary. Randolph wasn't an isolated
ruling. The Court announced a clear rule that allows a homeowner to refuse
consent even when his or her spouse is present and has already consented. 212
Ms. Downer: All well and good Mike, but don't forget that the Court let
Matlock stand. 213 There, the Court arrested Mr. Matlock a block from his
home. 214 They then went to the home and asked Mrs. Graff, Matlock's
roommate, for permission to search. 215 Matlock was close enough to be asked
210.
211.
212.
213.
214.
215.
Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006).
See id. at 1520-28.
See id. at 1525-26.
See id. at 1527-28.
United States v. Matlock, 415 U.S. 164, 166 (1974).
[d.
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for his consent, but the police chose to keep him ignorant and rely on Graffs
third party consent. 216
Ms. Middlebrooks: So, this appears to be an example of the Court granting a
right with the awareness that in most instances the person whose right is
involved won't even be in a position to assert it, and the police have no
obligation to make him aware of his rights?217
Ms. Downer: Precisely.
Mr. Sunshine: So would you rather that the Court not grant Mr. Randolph his
rights? Chief Justice Roberts and Justices Scalia and Thomas would have been
happy to oblige you. 218 In their view, Randolph was like Matlock, and
therefore, Mrs. Randolph's consent should not have been subject to Mr.
Randolph's countermanding. 219
Ms. Middlebrooks: Well, I suppose that Randolph-Matlock is a compromise.
If you are present and know your rights, you can refuse consent. 220 But, if you
are either not present or don't know your rights, you're out of luck. 221
Professor: Do you think that citizens should know their rights?
Class (except Mr. Sargeant): Yes.
Mr. Sargeant: I really don't think so. Citizens have so many rights today that
if they all knew about them, the police-citizen balance would be terribly
askew.
Ms. Wright: Sam, it is already terribly askew and not in the direction that you
envision. Row can you say that a Court that compels presumptively innocent
people like Dudley Riibe1 to identify themselves to the police is skewed
against the police?222
Mr. Sargeant: Row can you say that Sybil? Dudley Riibel was acting like a
drunken jerk when Deputy Dove asked for identification. 223 Riibel taunted
216. Id. at 166-67.
217. See id.
218. See Randolph, 126 S. Ct. at 1531-39 (Roberts, C.J., dissenting); id. at 1539-42 (Scalia, J.,
dissenting); id. at 1541-43 (Thomas, J., dissenting).
219. See, e.g., id. at 1531-32 (Roberts, J., dissenting).
220. See id. at 1528 (majority opinion).
221. See Matlock, 415 U.S. at 187-88.
222. See Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 181 (2004).
223. Id. at 180.
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Dove, begging to be arrested until finally he got his wish. 224 You talk out of
balance. Consider cases like Michigan v. Jackson and State v. Robertson, in
which no matter how many times police warned the suspect, he still got his
confession excluded on a stupid technicality.225
Professor: I'm not sure that the question is whether citizens have too many or
too few rights; rather, the question is whether they should know about the
rights they have.
Ms. Middlebrooks: In thinking this question through, it seems more and more
clear to me that citizens should know their rights. Whatever else might be said
of the Escobedo case, Justice Goldberg was surely correct when he said: "If
the exercise of constitutional rights will thwart the effectiveness of a system
of law enforcement, then there is something very wrong with that system.,,226
Mr. Sargeant: You know, maybe you are right Margaret. In my view there is
something very wrong with our system. Quite frankly, criminals have too
many rights. But the thing to do is reduce those rights. I've always thought
it helped that people don't know their rights, but maybe that's wrong. Maybe
what we need to do is drastically reduce citizens' rights vis-a-vis the police.
Then maybe we could tell them about the rights they do have.
Ms. Wright: As far as I'm concerned, the Court has done just fine in reducing
citizens' rights. But I certainly agree that they should know what their rights
are.
Professor: Okay, how should we tell them?
Ms. Wright: How about if we run television ads telling citizens to ''just say no
to police"?
Ms. Middlebrooks: I don't think that is the message we want to get out there.
As Justice Stewart has said on multiple occasions: "[I]t is no part of the policy
underlying the Fourth and Fourteenth Amendments to discourage citizens from
aiding to the utmost of their ability in the apprehension of criminals."227 "Just
say no to police" sounds inconsistent therewith. It implies a directive to avoid
224. Id. at 181.
225. See Michigan v. Jackson, 475 U.S. 625, 635 (1986); State v. Robenson. 624 P.2d 342, 344
(Ariz. Ct. App. 1980).
226. Escobedo v. nlinois, 378 U.S. 478, 490 (1964).
227. See Schneckloth v. Bustamonte, 412 U.S. 218, 243 (1973); Coolidge v. New Hampshire. 403
U.S. 443. 448 (1971).
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aiding the police. If something like that is used at all, it needs to be more
nuanced.
Ms. Wright: I don't know about that. In the kinds of cases we're talking
about, the police are generally trying to get the defendant to convict himself,
not solve a crime. The context in which Justice Stewart invoked that phrase
in Schneckcloth was peculiarly inappropriate. 228
Mr. Sunshine: Maybe so, Sybil. But surely a general message to "just say no
to police" is not the message that we want to convey to our citizenry.
Professor: What message do we want to convey?
Mr. Sunshine: I'd like for citizens to know their rights but to be judicious in
exercising them. For example, last month I was stopped at an airport and
asked to consent to a search of my briefcase. I asked the officer why, and he
told me that he was a DEA agent and that I met the drug courier profile. I then
asked him whether I was required to let him look in my briefcase, and he
assured me that I was not. I then asked him if I was free to leave if I did not
consent to the search. The agent said that I would be free to leave and that
would be the end of it. I then told him: "Okay, in that case you can look." I
guess that's how I'd like everybody to act towards police-informed, but
cooperative.
Ms. Downer: Get real, Michael. How many people with your knowledge are
going to behave that way? They're either going to submit because they are
frightened (even if they know their rights) or they are going to just say "no."
Besides, do you want someone with drugs to supinely submit as you did?
Mr. Sunshine: First, I did not supinely submit, but I reflectively cooperated.
There is a huge difference. Second, people who are actually carrying drugs
and know of their rights are unlikely to submit, supinely or otherwise.
Ms. Wright: And how are you going to get knowledge to the populace if we
don't run televison or billboard ads?
Mr. Sunshine: Perhaps we could teach it in schools or as part of adult
education taught at community centers. We can teach our citizens what their
rights are without encouraging them to say "no."
228.
See Schneckloth, 412 U.S. at 243.
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Mr. Sargeant: I'd be loathe to do that until we drastically reduce rights.
Otherwise, there will be too many people not consenting to searches or
confessing when they otherwise would, and more guilty people will be
walking the streets.
Ms. Wright: Yeah, but it will be a breath of fresh air to the innocent, who feel
compelled to cooperate, when their cooperation should be voluntary.
Professor: Is there anything wrong with teaching citizens rights in civics class
so long as we don't discourage cooperation with the police?
Ms. Middlebrooks: I don't think so. That seems like the best way to go.
Professor: Anyone disagree?
Mr. Sargeant: If they didn't have as many rights, I'd be fine with that.
Rest of Class: Sounds good to us.
Professor: Well, I'm happy to tell you that we've reached the end of the class
and the end of the semester. Good luck in your future careers.
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