On appeal from the Superior Court, Appellate Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- Justice Stein. The opinion of the Court was delivered by Clifford, J. Handler, J., concurring in the result and dissenting in part. Handler, J., concurring in part and dissenting in part. Stein, J., dissenting.
Defendant, Terrence Hartley, was convicted on one count of first-degree robbery, N.J.S.A. 2C:15-1, and two counts of felony murder, N.J.S.A. 2C:11-3(a)(3). For purposes of sentencing the robbery conviction was merged. On the two murders the court imposed a term of life imprisonment with a parole-ineligibility period of twenty years, and a consecutive thirty-year term with a parole-ineligibility period of fifteen years. The convictions were based on a robbery of the Holst Jewelry Store in Atlantic City that resulted in the death of the store's owner and the owner's aunt.
This appeal questions the admissibility, on the State's case in-chief, of defendant's two inculpatory statements given during custodial interrogations by separate branches of law enforcement, who were pursuing a "joint" investigation. Defendant had previously been given Miranda warnings, in response to which he had asserted in clear and unequivocal terms his right to remain silent.*fn1 Some time later he made the statements in question, the first in response to interrogation by federal authorities, who did not give defendant the Miranda warnings anew, and the second to New Jersey authorities after defendant had been reinformed of his Miranda rights. The specific issues are whether the federal authorities "scrupulously
honored" defendant's previously-invoked right to silence, as required by Michigan v. Mosley, 423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975); and, if not, whether the statement to New Jersey authorities is tainted because of its relationship to the "federal" statement.
We hold that before an accused's previously-asserted right to remain silent may be deemed to have been "scrupulously honored," law-enforcement authorities must, at a minimum, readminister the Miranda warnings. In the absence of those renewed warnings any inculpatory statement given in response to police-initiated custodial interrogation after the right to silence has been invoked is inadmissible. In addition, we determine that a police failure scrupulously to honor an accused's earlier-invoked right to silence amounts to a violation not simply of Miranda 's prophylactic rules but of the accused's privilege against self-incrimination. Therefore, any statement that a suspect may make after his right to silence has not been scrupulously honored is unconstitutionally compelled as a matter of law. That circumstance in turn requires a close examination of the relationship between that first statement and any subsequent statement.
We conclude that in this case the federal authorities' failure scrupulously to honor defendant's announced intention not to make a statement requires the exclusion, on the State's case, not only of defendant's confession to agents of the Federal Bureau of Investigation (FBI) but also of defendant's second statement, made to state and municipal authorities. This result is compelled either (1) because the second statement was obtained through a process that was in fact part of the same illicit procedure that produced the first statement, or (2) because it was the product of an unconstitutional interrogation -- and this despite the readministering of Miranda warnings to defendant before the second statement. Finally, we base the above determinations not only on our understanding of the United States Supreme Court precedents in this area but on independent state grounds of decision as well.
The facts surrounding the commission of the crimes are uncomplicated. Hartley and two companions, James Hooks and a young woman known only as "Snow," traveled from New York to Atlantic City for the purpose of robbing the casino at the Resorts International Hotel. The heavy security at the hotel served to discourage that venture, so defendant and his co-felons searched for a more vulnerable target. The nearby Holst Jewelry Store appeared to promise easier pickings. While defendant remained outside as a "lookout," Hooks and Snow robbed the jewelry store, in the course of which the owner and his aunt were shot and killed. The three culprits then returned to the hotel, took a taxi to the Atlantic City Bus Depot, and boarded a return bus for New York City.
At funeral services for James Hooks, who himself was killed just ten days after the robbery-murders in Atlantic City, an informant identified defendant as a suspect in the Holst Jewelry Store crimes. On the basis of the informant's tip and a corroborating police investigation, a federal magistrate sitting in the Eastern District of New York issued an arrest warrant for Hartley and a search warrant for his residence. The federal authorities' involvement arose because of a charge of interstate transportation of the property taken from the jewelry store.
The warrants were executed at Hartley's apartment in Brooklyn at about 7:30 a.m. on February 5, 1981, by five special agents of the FBI, assisted by members of the Atlantic City Police Department, the Atlantic County Prosecutor's office, and the New York City Police Department. At the time of the arrest FBI agent Richard Robley read Hartley the Miranda rights and informed him that he was being arrested for "the interstate transportation of stolen property in connection with an armed robbery of the Holst Jewelry Store in Atlantic City, New Jersey, [in] which the owner and his aunt were murdered." A police search of defendant's apartment uncovered jewelry
that was later identified as merchandise stolen from the Holst Jewelry Store.
After his arrest Hartley was taken to the Brooklyn-Queens office of the FBI. At 9:13 a.m. the authorities placed Hartley in an Interview Room for processing. At 9:16 a.m. he was readvised of his constitutional rights and was handed a federal "Advice of Rights" form, which contained the full panoply of Miranda warnings. Immediately following the statement of those warnings, the form contained the following, under the heading "Waiver of Rights":
I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
This in turn was followed by a line for defendant's signature. Thus, the only place provided for one to sign the form came after the "waiver" section. Put differently, the only purpose of the signature was not to acknowledge receipt of one's rights but rather to indicate a waiver of those rights.
According to FBI agent Merle Frieberg, defendant "briefly glanced at" the form, after which Frieberg said,
"Do you understand what is on the form? Do you understand what was just read to you?"
He said, "Yes." He hesitated and I said, "What seems to be the problem?"
He said, "I don't believe I want to make a statement at this time." And to which Special Agent Davis said, "Fine. If you don't want to make a statement at this time, strike that particular item and initial it." Which he did.
The authorities asked no questions at that time, but proceeded to fingerprint and photograph defendant, commencing at 9:26 a.m.
At 10:43 a.m. agent Frieberg again approached Hartley, who had been returned to the Interview Room, and stated:
Terrence, I am Special Agent Frieberg and I am from Atlantic City, New Jersey and I think you know why I am up here. And I would like you to reconsider and now is the time if you are going to make a statement. Now is the time to do it.
Defendant replied, "What do you want to know?" Frieberg thereupon, without readministering the Miranda warnings, proceeded to ask defendant personal background questions, followed by questions probing the details of the jewelry-store robbery. Defendant responded by giving what amounted to a full confession. The agent had his notes typed into a statement, which Hartley refused to sign.
After being questioned by the FBI agents, Hartley was questioned by a group of four New York and New Jersey officials. Criminal Investigator Margaret Barnett of the Atlantic County Prosecutor's Office read him his rights. The State asserts that defendant signed a waiver at that time but that the form was misplaced in the Prosecutor's office. The interrogation was conducted primarily by Detective Dennis Mason of the Atlantic City Police Department. Also present were two New York City police officers. All four were members of the group that had arrived at the defendant's apartment that morning and had assisted in the search conducted there. Hartley refused to allow his statement to be recorded on tape, and likewise refused to sign a typed description of this interview, as was the case with the federal statement.
The trial court refused to admit into evidence either of the unsigned typewritten statements, but it allowed both the federal and state authorities' testimony as to the contents of Hartley's oral statements to them. Defendant appealed his conviction to the Appellate Division, alleging error in the trial court's failure to have suppressed "statements attributed to the defendant in violation of federal and state constitutions." The Appellate Division affirmed the conviction, with Judge Gaulkin dissenting. That court determined that defendant's right to remain silent had not been violated and that therefore his
confession was properly admitted. This appeal followed as of right. See R. 2:2-1(a)(2).*fn2
The fifth amendment to the United States Constitution provides in part that "[n]o person * * * shall be compelled in any criminal case to be a witness against himself * * *." U.S. Const. amend. V. In Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), the Supreme Court held this privilege against self-incrimination applicable to the states, through the fourteenth amendment. Although we have no similar provision in our New Jersey Constitution, the privilege itself "is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence." In re Martin, 90 N.J. 295, 331 (1982); see also Evid.R. 23, 24, and 25 (bestowing the privilege, setting out its boundaries, and describing exceptions).
When a defendant waives his privilege against self-incrimination, as he surely is entitled to do, the government has the "heavy burden" of demonstrating that such a waiver was made "voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 707 (1966); see Tague v. Louisiana, 444 U.S. 469, 471, 100 S. Ct. 652, 653, 62 L. Ed. 2d 622, 625 (1980); C.H. Whitebread, Criminal Procedure § 15.05, at 300-01 (1982). However, the question of waiver is an inquiry separate and apart from the first question that engages our attention in this appeal: whether the defendant's right to remain silent has been properly respected in the first instance. See Jarrell v. Balkcom, 735 F.2d 1242, 1252 n. 11, reh'g denied, 740 F.2d 979 (11th Cir.1984), cert. denied, U.S. , 105 S. Ct. 2331, 85 L. Ed. 2d 848, reh'g
denied, U.S. , 105 S. Ct. 3547, 87 L. Ed. 2d 670 (1985); People v. Grant, 45 N.Y. 2d 366, 373, 380 N.E. 2d 257, 261, 408 N.Y.S. 2d 429, 432 (1978); Stone, The Miranda Doctrine in the Burger Court, 177 Sup.Ct.Rev. 99 (1977) (hereinafter The Miranda Doctrine).
In Miranda, the Court made clear that the requirement that the police "scrupulously honor" the suspect's assertion of his right to remain silent is independent of the requirement that any waiver be knowing, intelligent, and voluntary. See Michigan v. Mosley, supra, 423 U.S. at 102-03, 96 S. Ct. at 325-26, 46 L. Ed. 2d at 320-21; The Miranda Doctrine, supra, 177 Sup.Ct.Rev. at 133. Care must be taken therefore that there be no blurring of the separate lines of analysis that are followed in respect of the "scrupulously honor" requirement on the one hand and the waiver issue on the other. The distinction between the two concepts stands out in bold relief in this case: given our holding that the failure scrupulously to honor a previously-invoked right to silence renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation, there can be no question of waiver. In the instant context the waiver issue could not arise until after the exercise of the asserted right had been scrupulously honored by, at a minimum, the giving of fresh Miranda warnings. The requirement that an asserted right be scrupulously honored has been carefully guarded in this state in order to ensure that full opportunity to exercise the privilege is permitted. State v. Kennedy, 97 N.J. 278, 288 (1984). Because in this case the right was not honored and defendant's "federal" statement must therefore be deemed to have been unconstitutionally compelled, there is simply no waiver issue posed on the appeal. See United States ex rel. Sanders v. Rowe, 460 F. Supp. 1128, 1135 (N.D.Ill.1978) ("No waiver is possible if the suspect's original request for counsel was not 'scrupulously honored.'").
Justice Stein's dissent suggests that the Court engages in an "unduly technical" application of Mosley by refusing to test
Hartley's response by waiver standards. Post at 316. Justice Stein would apparently have us abandon this federal constitutional approach and adopt instead a waiver analysis proposed by Justice Powell's concurring opinion in Oregon v. Bradshaw, 462 U.S. 1039, 103 S. Ct. 2830, 77 L. Ed. 2d 405 (1983). That Justice Powell has not succeeded in changing the law here is readily apparent from the Court's recent reaffirmation, in the "right to counsel" context, of the "two-step" approach to statements obtained after assertion of a constitutional right. Michigan v. Jackson, 475 U.S. , , 106 S. Ct. 1404, 1410, 89 L. Ed. 2d 631, 642 (1986).
The privilege against self-incrimination is one of several important rights that the Supreme Court sought to protect in Miranda by establishing procedural prerequisites to admissibility of any inculpatory statement produced by custodial interrogation. Whereas prior to Miranda the admissibility of an accused's in-custody statements turned on whether those statements were "voluntary" within the meaning of the due-process clause, Miranda created an irrebuttable presumption of compulsion as to such statements given in the absence of the warnings mandated by that case. E.g., Oregon v. Elstad, 470 U.S. 298, - , 105 S. Ct. 1285, 1290-93, 84 L. Ed. 2d 222, 229-31 (1985), of which more in parts IV and V of this opinion. Consequently, under Miranda, statements produced by unwarned in-custody interrogation are inadmissible on the State's case in-chief, id. at , 105 S. Ct. at 1292, 84 L. Ed. 2d at 231.
The "compulsion" that is at the heart of the Miranda doctrine does not assume the "rubber-hose" scenario conjured up by a dictionary definition of "coercion" or "involuntariness." Rather, the premise behind the decision is "that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to
resist and to compel him to speak where he would not otherwise do so freely." Miranda, supra, 384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719. The compulsion contemplated by Miranda, then, is "inherent" or "presumed," rather than "actual." But cf. Kamisar, Heavy Blow Delivered by Miranda Decisions, The National Law Journal, Sept. 2, 1985, at S-22 ("[T]here is no distinction, for constitutional purposes, between inherent compulsion and actual compulsion."). Our own recognition of the nature of this compulsion and of its significant ramifications is reflected in our decisions requiring that a request, "however ambiguous," to terminate questioning or to have counsel present must be diligently honored. State v. Kennedy, supra, 97 N.J. at 288.
In Michigan v. Mosley, supra, 423 U.S. at 104, 96 S. Ct. at 326, 46 L. Ed. 2d at 321, the Supreme Court again emphasized the "coercive pressures" that are inherent in a custodial setting. The Court focused on this key passage from Miranda:
Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; and a statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. [384 U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723 (emphasis added).]
The specific problem confronting the Mosley Court was that although Miranda appears to contain a clear requirement that "the interrogation must cease" when the suspect asserts his right to remain silent, the opinion does not discuss under what circumstances, if any, the authorities may resume interrogation.
Prior to Mosley, the case law on this question was "in a state of disarray." The Miranda Doctrine, supra, 177 Sup.Ct.Rev. at 130. The courts were sharply divided in their approach to the issue.
Most pre- Mosley courts * * * seem to have adopted an ad hoc approach to the problem, implicitly undertaking a two-pronged inquiry. First, was the subsequent attempt to question merely an impermissible continuation of the prior attempt, or was it a genuinely independent event? * * * Second, if the subsequent attempt to interrogate was in fact an independent event, was the suspect's eventual waiver of his rights knowing, intelligent, and voluntary within the meaning of Miranda? * * * As might be expected, because of the absence of any clear standards, the results under this approach were unpredictable and often inconsistent. Finally, some courts modified this approach by employing an especially high standard of knowing, intelligent, and voluntary waiver in the face of renewed attempts to question. [ Id. at 130-31 (footnotes omitted).]
It was the confusion demonstrated in the foregoing passage that the Court sought to resolve in Mosley.
The defendant in Mosley, arrested on suspicion of robbery, was carefully informed of his constitutional rights when the police took him into custody. Mosley stated that he understood his rights and that he did not wish to speak about the robberies. Immediately, the police terminated the questioning. The defendant was questioned two hours later by a different police officer at another location concerning an unrelated homicide. At the outset of this second interrogation the defendant was again warned of his right to remain silent, 423 U.S. at 105, 96 S. Ct. at 327, 46 L. Ed. 2d at 322, after which he made incriminating statements. The question was whether those statements could be used against defendant at his murder trial.
Justice Stewart's opinion for the Court recognized that resolution of the issue required the Court to look beyond the key passage in Miranda, quoted supra at 263, because reliance on a strict, literal interpretation of "the interrogation must cease" would take one to "absurd and unintended results." 423 U.S. at 102, 96 S. Ct. at 325, 46 L. Ed. 2d at 320. The Court said:
To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects
of an opportunity to make informed and intelligent assessments of their interests. [ Id. ]
The Court therefore eschewed a "per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent," id. at 102-03, 96 S. Ct. at 326, 46 L. Ed. 2d at 321, and held instead that "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his 'right to cut off questioning' was 'scrupulously honored'." Id. In concluding that Mosley's right to terminate questioning had been "scrupulously honored," and that the incriminating statements elicited from the second interrogation could be used against him at trial, the Court stated:
This is not a case * * * where the police failed to honor a decision of a person to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation. [ Id. at 105-06, 96 S. Ct. at 327, 46 L. Ed. 2d at 322.]
Mosley has come in for some harsh treatment at the hands of the commentators. See, e.g., Professor Stone's comments in The Miranda Doctrine, supra, 177 Sup.Ct.Rev. at 129-37, in a section entitled Michigan v. Mosley: If at First You Don't Succeed * * * ("[T]he requirement that an individual's rights be 'scrupulously honored' surely has a nice ring to it, but, as formulated and applied in Mosley, is devoid of any clear substantive content," id. at 134; and, " Mosley offers only ambiguous protection to the accused and virtually no guidance to the police or the courts who must live with the rule." Id. at 137); Note, The Declining Miranda Doctrine: The Supreme Court's Development of Miranda Issues, 36 Wash. & Lee L.Rev. 259, 268 (1979) ("[T]he Court's 'scrupulously honored' test provides no concrete guidelines for lower courts to resolve the issue of precisely when interrogation may be resumed.");
Note, Michigan v. Mosley: A New Constitutional Procedure, 54 N.C.L.Rev. 695, 696 (1976) (Mosley 's "scrupulously honor" requirement is defined "so vaguely that it offers little guidance to lower courts or the police."). Whatever basis there may be for these criticisms, Mosley leaves no room for doubt in at least this respect: the decision of a suspect to remain silent is "scrupulously honored" when (1) the police do not approach him for two hours, (2) he receives fresh Miranda warnings, (3) he is questioned by a different officer, and (4) he is questioned in respect of an offense different from the one for which he is in custody.
A number of courts have required the suppression of incriminating statements in cases in which one or more of the factors that supported admissibility in Mosley were absent. See, e.g., Robinson v. Percy, 738 F.2d 214, 220 (7th Cir.1984) (under Mosley, cessation of questioning for a certain period of time is required before interrogation can be renewed); People v. Young, 115 Ill.App. 3d 455, 71 Ill.Dec. 259, 450 N.E. 2d 947 (1983) (recess and fresh Miranda warnings are a minimum prerequisite to reinterrogation); Wilson v. United States, 444 A.2d 25, 31 (D.C.1982) (all Mosley factors are required to validate reinterrogation); United States v. Maddox, 413 F. Supp. 60 (W.D.Okla.1976) (reinterrogation on same offense is precluded by Mosley); cf. People v. Buxton, 44 N.Y. 2d 33, 374 N.E. 2d 384, 403 N.Y.S. 2d 487 (1978) (later non-coercive reinterrogation permitted after reiteration of requisite warnings). Still other courts have applied the Mosley factors in a more flexible fashion, focusing largely on the level of overall coerciveness surrounding the particular interrogation at issue. See, e.g., United States v. Terry, 702 F.2d 299 (2d Cir.), cert. denied, 461 U.S. 931, 103 S. Ct. 2095, 77 L. Ed. 2d 304, and 464 U.S. 992, 104 S. Ct. 482, 78 L. Ed. 2d 680 (1983) (statement given as the result of a non-coercive reinterrogation on same subject after forty minutes and fresh Miranda warnings held admissible); United States v. Smith, 608 F.2d 1011 (4th Cir.1979) (statement made after a brief cessation of questioning and in the absence
of formal fresh Miranda warnings admissible as non-coercively obtained).
The commentators too are in disagreement as to which of the Mosley factors is indispensable to fulfillment of the "scrupulously honor" requirement. Professor Kamisar reports that Professor Stone, author of The Miranda Doctrine, supra, 177 Sup.Ct.Rev. 99, sees as "critical" to the Mosley result the fact that the second interrogation was restricted to a separate, "unrelated" crime, whereas Kamisar lists three elements as " the minimum requirement " for renewing questioning when a suspect indicates that he wishes to remain silent: "(1) the original interrogation is promptly terminated; (2) the questioning is resumed only after 'the passage of a significant period of time' (presumably the passage of at least an hour or two); (3) the suspect is given another set of Miranda warnings at the outset of the interrogation * * *." Kamisar, "The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away," 5 The Supreme Court: Trends and Developments 1982-83 153, 155 (1984).
We need go no further today, in respect of Mosley 's impact on this case, than declare as indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect the furnishing of fresh Miranda warnings. Unless the police follow this "bright-line," inflexible, minimum requirement, a defendant's statement made in the above-stated circumstances cannot be admitted into evidence as part of the prosecution's case in-chief. See also State v. McCloskey, 90 N.J. 18, 30 n. 3 (1982) ("prosecution cannot use any statements made during [the defendant's] second interrogation, before which new Miranda warnings were not given".).
Justice Stein's dissent suggests that a reminder or reacknowledgement of an accused's previously-asserted right to silence is as effective a means of satisfying Mosley 's "scrupulously honor" requirement as is our bright-line rewarning requirement. Post at 318-319. The weakness of such an approach
and the merits of a bright-line rule are highlighted by this very case. While the Court views Frieberg's statement as clearly coercive (see discussion infra at 267-271, Justice Stein views the same statement as a non-coercive request to reconsider a previous invocation of the right to silence, fully consistent with a scrupulous honoring of that right. A bright-line rule will help avoid this confusion and conflict in future cases, at least on the question of the minimum requirement for "scrupulously honoring."
Although the Supreme Court specifically avoided, in Mosley, the adoption of a "per se" test for determining when a suspect's previously-invoked right to silence had been "scrupulously honored," we nevertheless are convinced that our establishment of a "bright-line" minimum requirement of renewed warnings for determining when that right has not been scrupulously honored not only is sound as a matter of New Jersey common law but is also consistent with the spirit of the Supreme Court's decisions and hence with the federal law as we understand it.
Moreover, even absent the "bright-line" rule that we adopt today -- namely, a previously-invoked right to silence is not scrupulously honored in the absence of, at the least, fresh Miranda warnings -- the circumstances surrounding the taking of the first statement by FBI agents were such that it is highly unlikely that that statement could have been admitted under any standard, including the "totality of the circumstances" test used by some courts. See supra at 266. Were that test to guide our decision, we would narrow our focus to the conduct of agent Frieberg, for it is he who overcame defendant's previously-expressed refusal to speak to the FBI representatives. With all due respect to Justice Stein's thoughtful dissent, we are unpersuaded by its characterization of Frieberg's statement as no more than a reacknowledgement to Hartley of "the continued availability" of his right to remain silent. Post at 318. In no way did Frieberg refer even inferentially to any of defendant's rights. His remarks amounted to nothing less
than a pressure-laden expression of his desire to get defendant to talk. It did not even purport to be a request, inasmuch as it was couched not in the form of a question or even an entreaty, but rather in the form of the agent's advice to defendant -- "I would like you to reconsider and now is the time if you are going to make a statement. Now is the time to do it. ' (Emphasis added.)
As important as the events following Frieberg's approach to Hartley, after defendant had invoked his right to silence, is the sense of urgency and pressure that attended those events. At 10:43 a.m., when the federal interrogation commenced, the federal authorities were "waiting for a call from the Eastern District pertaining to [defendant's] arraignment." It was in that context that Frieberg told Hartley that "now is the time" to make a statement. And Frieberg was aware, as he testified, that
the federal law * * * dealing with speedy arraignments [is] very speedy, particularly in the Eastern District of New York. In my limited experience with the Eastern District of New York, the burden on the government is tremendous in terms of moving the process along. The Brooklyn Office particularly is extremely aware of that situation.
Q You received instructions from your superior to get the defendant transported to this arraignment without delay?
Q Under the federal law, or at least as far as you know, what is the sanction imposed for failing to arraign a defendant within the appropriate time period?
The federal people apparently communicated to the New Jersey authorities this same sense of the need to rush, for as Atlantic City Detective Mason testified, he did not conduct his interrogation in question-and-answer form because the FBI agents told him that "they had to take [defendant] away and I only had a limited time to get a statement from him." According to Sergeant Toulon of the New York City Police Department, who was in the room during Mason's interrogation of Hartley, the interview was "rather quick. * * * We were pressured for time. * * * Sir, we only had, I would say, approximately about five minutes * * * [b]ecause we were being pressed * * *." According to Toulon, before the New Jersey authorities even started their interrogation, "[w]e were informed that the Eastern District Court had called, that the federal office -- that agents requested that they dispatch the defendant to their court immediately."
When agent Frieberg's twice-imparted "now is the time" advice is viewed in the context of the foregoing, it is apparent that the "time" to which he made reference surely could not have been a "good" time or a "right" time for Hartley, although that is ostensibly the sense of the statement. Rather, it was the "time" that was swiftly running out on Frieberg before the fast-approaching arraignment could abruptly interrupt this phase of the investigation and itself trigger an additional sixth-amendment right to counsel. See, e.g., Moore v. Illinois, 434 U.S. 220, 226-27, 98 S. Ct. 458, 463-64, 54 L. Ed. 2d 424, 432-33 (1977); Fourteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1983-1984, 73 Geo.L.J. 253, 375-76 (1984).
The record speaks loudly, and speaks in the form of testimony of the State's own witnesses, of the authorities' impatience to nail down the joint investigation with defendant's confession
-- an understandable, even laudable, impulse, but one whose exercise in the context of this case was not consistent with scrupulous observance of defendant's rights. So threatening, or misleading, was the burden of Frieberg's counsel to Hartley (abandon your determination to remain silent and, now or never, speak), that the non-observance -- to say nothing of a non-scrupulous observance -- of defendant's previously-asserted right to silence is a most likely, if not inescapable, conclusion.
Having determined that Hartley's previously-asserted right to silence was not scrupulously honored, by virtue of both the bright-line rule and the factual complex, we turn to the important question of what consequences flow from that circumstance. The answer turns in part on how we characterize the failure scrupulously to honor defendant's express resolve not to make a statement: is it to be viewed as a violation merely of Miranda 's prophylactic rules, or is it rather a clear violation of the right against compulsory self-incrimination as such, and hence a "constitutional" violation? As previously announced, supra at 256-257, we conclude that the failure scrupulously to honor an accused's previously-asserted right to silence amounts to a constitutional violation and a violation of the state common-law privilege against self-incrimination, and any inculpatory statement made in the absence of fresh warnings must be deemed to have been unconstitutionally and illegally obtained as a matter of law.
Contrary to Justice Handler's assertion, post at 294, we do not blur "the distinctive lines between constitutional and non-constitutional violations." We recognize those lines and grasp full well the distinction drawn by Justice Rehnquist for the Court in Michigan v. Tucker, 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974), between on the one hand police conduct that directly infringes on an accused's right against compulsory self-incrimination, and on the other a violation only of the "prophylactic
rules developed to protect that right," id. at 439, 94 S. Ct. at 2361, 41 L. Ed. 2d at 190. The Supreme Court has made it abundantly clear that under its current formulation of the Miranda doctrine, a failure to administer Miranda warnings does not itself "breed the same irremediable consequences as police infringement of the Fifth Amendment itself." Oregon v. Elstad, supra, 470 U.S. at , 105 S. Ct. at 1293, 84 L. Ed. 2d at 232. See infra at 276.
We perceive a qualitative difference between a failure to administer Miranda warnings in the first place, and a failure to honor, after they have been asserted, the constitutional rights that those warnings are designed to secure. In the former instance the police conduct, standing alone and unaccompanied by any oppressive acts of coercion or intimidation, does not inevitably demonstrate an undermining of the in-custody suspect's ability to exercise his free will. Put differently, the statement produced by an unwarned in-custody interrogation may be voluntary despite the absence of Miranda warnings. See Michigan v. Tucker, supra, 417 U.S. at 445, 94 S. Ct. at 2364, 41 L. Ed. 2d at 193. Although the unwarned confession must be suppressed under the force of Miranda 's irrebuttable presumption of compulsion, the violation of Miranda 's dictates is not in that instance of constitutional dimension. Id. at 445-46, 94 S. Ct. at 2364-65, 41 L. Ed. 2d at 193-94.
On the other hand, once the suspect has received his Miranda warnings and, as did Hartley, he determines to exercise his fifth-amendment privilege to remain silent, a different set of considerations comes into play. Miranda itself points to this conclusion through its explication of the purpose of prophylactic rules:
[W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of
his rights and the exercise of those rights must be fully honored. [384 U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719.]
The plain implication of the foregoing passage is that the suspect must be afforded unimpeded access to the Constitution. As Justice Handler wrote for a unanimous Court in State v. Kennedy, supra, "the pivotal consideration in making the constitutional inquiry is whether, upon being advised of his rights, defendant indicated that he wanted the assistance of counsel with respect to the particular charge in question, and whether he wanted to have counsel available or present before any further interrogation." 97 N.J. at 287 (emphasis added). Therefore, if after a suspect avails himself of the Constitution's protections the police violate a right that has been invoked, that violation, by definition, is of constitutional magnitude. Again, Miranda itself could scarcely be clearer in that regard, when it instructs us that when an in-custody suspect announces his wish to remain silent, he has shown at that point that
he intends to exercise his Fifth Amendment privilege; and a statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. [384 U.S. at 474, 86 S. Ct. at 1628, 16 L. Ed. 2d at 723.]
See also Wainwright v. Greenfield, 474 U.S. , , 106 S. Ct. 634, 639, 88 L. Ed. 2d 623, 631 (1986) (invocation of the right to silence after Miranda warnings is of "constitutional dimension").
Our confidence that we have read Miranda correctly in the foregoing respects is borne out by the Supreme Court's treatment of Miranda 's progeny, see Michigan v. Jackson, supra, 475 U.S. , 106 S. Ct. 1404, 89 L. Ed. 2d 631; Oregon v. Elstad, supra, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222; Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378, reh'g denied, 452 U.S. 973, 101 S. Ct. 3128, 69 L. Ed. 2d 984 (1981).
In Edwards v. Arizona, supra, the Supreme Court held that an in-custody accused who has sought refuge in his constitutionally-guaranteed right to deal with the police only through counsel cannot be ...