Illinois v. Perkins

PETITIONER:Illinois
RESPONDENT:Perkins
LOCATION: Montgomery County jail

DOCKET NO.: 88-1972
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: Supreme Court of Illinois

CITATION: 496 US 292 (1990)
ARGUED: Feb 20, 1990
DECIDED: Jun 04, 1990

ADVOCATES:
Dan W. Evers – By appointment of the Court, argued the cause for the respondent
Marcia L. Friedl – Argued the cause for the petitioner
Paul J. Larkin, Jr. – Argued the cause for the United States as amicus curiae urging reversal

Facts of the case

While being held in jail, Perkins freely confessed to committing a murder to an undercover police officer who was posing as another inmate.

Question

Did the undercover police officer violate the accused’s Miranda rights as protected by the Fifth and Fourteenth Amendments?

William H. Rehnquist:

We’ll hear argument next in No. 88-1972, Illinois v. Lloyd Perkins.

Ms. Friedl, you may proceed whenever you’re ready.

Marcia L. Friedl:

Mr. Chief Justice, and may it please the Court:

This case comes from the Illinois Appellate Court which upheld the suppression of Defendant’s murder confession on the Miranda grounds.

The ruling precludes the use of undercover agents to in any way question incarcerated suspects concerning criminal offenses that they may have committed and it ironically arises on facts which affirmatively establish that Defendant Perkins in this case perceived no pressures whatsoever to speak when making his incriminating statements, but, rather, he was simply killing time with boastful admissions to those whom he believed to be co-conspirators in a jail break.

After detailing how the privilege against self-incrimination is seriously threatened whenever a suspect is subjected to the inherently compelling pressures of custodial interrogation, this Court in Miranda developed prophylactic warnings and rules to provide practical reinforcement for the Fifth Amendment privilege.

However, because the Miranda safeguards of a protective Fifth Amendment, and because they markedly decrease the number of wholly-reliable statements that are available to law enforcement for both investigation and prosecution purposes, this Court has characterized those safeguards as extraordinary and has consistently refused to apply them outside the context of the inherently compelling custodial interrogations for which they were designed.

The Miranda’s principal concern was that mutually reinforcing manifestations of police dominance arising from custodial interrogation will inevitably exert significant pressures on an accused to speak.

This concern is entirely inapposite to undercover elicitation statements.

A suspect who is in immediate and non-transit control of a non-governmental authority who also at the same makes its interest at eliciting a statement apparent, might naturally believe that he has no right to speak because the… the authorities’ power to eventually get what it wants is immediately suggested by its power of restraint.

And even if the subject is not subjected to any further incarceration, additional incarceration, above and beyond that of general incarceration itself, other potential pressures remain because the suspect will still… the inmate will still understand that speaking will accommodate an inquiring government that not only has the proven power of incarceration but also has future control over his physical environment, his prosecution and other aspects of his life.

Now, where a suspect doesn’t know that he’s encountering a governmental agent, he can feel absolutely none of these pressures, and any concern in Miranda for perceived governmental domination by the questioner which could even conceivably be reinforced by the governmental’s power of incarceration is dispelled by the deception itself.

Sandra Day O’Connor:

Well, Ms. Friedl, now, if the undercover agent had physically beaten the prisoner up in order to obtain the information, do you think the Fifth Amendment might preclude the use of that information?

Marcia L. Friedl:

Clearly the due process clause test for that would be available in the–

Sandra Day O’Connor:

Do you think the Fifth Amendment would preclude it?

Marcia L. Friedl:

–This Court has never held the Fifth Amendment to specifically apply.

In Hoffa the Court assumed that the Fifth Amendment applies in undercover contacts.

This Court has never specifically held the Fifth Amendment to apply in the undercover context.

But the due process test is precisely the same as the Fifth Amendment.

So, the due process clause for certain would be available to remedy that.

Sandra Day O’Connor:

But there is a concern in the Fifth Amendment for voluntariness, isn’t there?

Marcia L. Friedl:

For compelled… the privilege against self–

Right.

Marcia L. Friedl:

–self-incrimination.

Sandra Day O’Connor:

And you think if the undercover agent beat it out of him, it might be considered compulsion?

Marcia L. Friedl:

Oh, of course.

Uh-huh.

Marcia L. Friedl:

Of course.

Sandra Day O’Connor:

Now, was there a lawyer appointed here–

Marcia L. Friedl:

There’s nothing in the record–

Sandra Day O’Connor:

–for the Defendant in the aggravated battery charge?

Marcia L. Friedl:

–There’s nothing in the record to indicate whether a lawyer was appointed or not.

The Defendant Perkins had not yet appeared before the court.

Sandra Day O’Connor:

There had been no initial appearance for the aggravated battery–

Marcia L. Friedl:

Correct.

Sandra Day O’Connor:

–when this occurred?

Marcia L. Friedl:

He first appeared on that… the… this questioning took place on a Sunday evening and he appeared on Monday morning for the first time on the aggravated battery charge, and it was at that time–

Sandra Day O’Connor:

I see.

Marcia L. Friedl:

–that he was arrested for the murder.

Sandra Day O’Connor:

Uh-huh.

Marcia L. Friedl:

Not only Miranda’s concern for governmental domination doesn’t exist in undercover context, and the goal of deception further renders under… other forms of pressure less likely since neither the undercover agent nor identified police personnel are going to act in a manner that would risk disclosure of their identity.

Thurgood Marshall:

Just one point.

This man wasn’t an undercover agent, he was a policeman, wasn’t he?

Marcia L. Friedl:

Correct.

He… the… Agency Parisi–

Thurgood Marshall:

Isn’t there a difference?

Marcia L. Friedl:

–was an undercover police officer and then Charlton was–

Thurgood Marshall:

Don’t you draw a line between policemen and undercover agents?

Marcia L. Friedl:

–There’s no reason to… in the context of this particular case there is really no difference between the way Agent Parisi was acting and the way Informant Charlton was acting.

There’s… that the… focus has got to be on the perceptions of the suspect, and the suspect… if the suspect doesn’t believe… perceive that someone is a governmental agent, then it makes no difference if he really is a police officer or just an informant, like Informant Charlton in this case.

Thurgood Marshall:

You don’t see any difference between a policeman and an informer?

Marcia L. Friedl:

No, Your Honor.

Not if they–

Thurgood Marshall:

I thought… I thought a policeman represented the state, officially sworn to duty, and an informer was not.

Marcia L. Friedl:

–Well, the informer in this case was clearly–

Thurgood Marshall:

Is that… is that correct?

That a policeman represents the state as an officer of the state, sworn as an officer of the state to uphold the Constitution of the United States?

Is that correct?

Marcia L. Friedl:

–Yes, Your Honor.

Thurgood Marshall:

And this man was sworn to uphold the Constitution of the United States?

Marcia L. Friedl:

Yes.

Thurgood Marshall:

And violated it?

Marcia L. Friedl:

Your Honor, we… it’s not our position that the Fifth… either the Fifth Amendment or due process clause could have conceivably been violated, and certainly even… even Miranda, of course, has not been violated here because the suspect, Defendant Perkins, in no way could perceive the governmental dominance, the… in his speaking with Agent Parisi and Informant Charlton.

There was no… there’s no purpose for… reason to apply Miranda in this context and most certainly the Constitution of the United States has not been violated vis-a-vis either the Fifth Amendment or the due process clause.

Sandra Day O’Connor:

Well, do you think that trickery can ever amount to coercion?

Marcia L. Friedl:

There could be situations where trickery amounts to coercion.

My point is that in your normal everyday undercover situation the deception itself is going to actually take away the coercion that… that the police domination type coercion that Miranda was concerned with.

William H. Rehnquist:

Well, did you… I would have answered that question from Justice O’Connor perhaps a little differently.

Do you think trickery is a subspecies of coercion?

Marcia L. Friedl:

There… trickery can constitute… it would be trick and not merely trickery.

For the most part, trickery will never come close to any kind… even present pressure.

And, again, in this… the undercover context here the very trickery of not allowing the suspect to know that you are acting as a governmental… governmental agent… that very trickery takes away all of the concerns that Miranda had for police domination.

William H. Rehnquist:

I would think trickery might pose other questions.

But it certainly doesn’t… it isn’t the same thing as coercion.

Marcia L. Friedl:

Certainly not, and Hoffa made that clear.

In Hoffa, which was not… did not occur in the prison… but this Court stated that because an undercover agent was involved, there was absolutely no potential for coercion at all.

Thurgood Marshall:

Why did they give this man Miranda rights afterwards?

Marcia L. Friedl:

Because afterwards–

Thurgood Marshall:

Well, I mean, if they didn’t have to give them before, why… what… what period was there when they decided they gave him Miranda rights?

Marcia L. Friedl:

–Well, when… after the… after the questioning occurred in this case on a Sunday evening and he went to court.

Then he was charged with the murder to which he had confessed the evening before.

Thurgood Marshall:

And then they gave him Miranda rights?

Marcia L. Friedl:

They gave him his Miranda rights because–

Thurgood Marshall:

After.

Marcia L. Friedl:

–at that point he was having an encounter with the police officer.

Thurgood Marshall:

They gave him Miranda rights after he was brought to court?

Marcia L. Friedl:

Yes.

Thurgood Marshall:

Is there any case that supports that?

Marcia L. Friedl:

There’s the… Miranda has never been applied outside the context for which it was designed, and this case certainly… and any undercover case… does not present those inherently compelling circumstances that require the prophylactic Miranda warning.

Thurgood Marshall:

What was the difference between the conditions in Miranda and the conditions here?

Marcia L. Friedl:

The conditions in Miranda were… were… you had… you have… Miranda contemplated a police officer interrogating a suspect in custody and there is… there is a potential interplay there between the perception of the suspect in terms of the government… the governmental power of incarceration and the governmental power–

Well–

Marcia L. Friedl:

–over future events which there is that very distinct interplay that does–

–The governmental–

Marcia L. Friedl:

–not exist in–

Thurgood Marshall:

–power of incarceration was the same in both, wasn’t it?

He was in jail.

Marcia L. Friedl:

–But he didn’t perceive the government’s power–

Thurgood Marshall:

It wasn’t… it wasn’t the same jail, but it was a jail.

Marcia L. Friedl:

–It was a jail.

But where the suspect doesn’t perceive that he’s being incarcerated by… where he doesn’t perceive a connection between the governmental power of his questioner and the government’s power of incarceration, then there’s no interplay.

And without that interplay Miranda is wholly unnecessary.

The entire basis of Miranda is to provide… was to give directions–

Thurgood Marshall:

Well, in… in case you don’t know it, incarceration is incarceration.

Marcia L. Friedl:

–Yes, but it–

Thurgood Marshall:

You are in jail–

Marcia L. Friedl:

–of course, and we are–

Thurgood Marshall:

–And I don’t… I don’t know of any difference.

Jails are jails.

Marcia L. Friedl:

–We aren’t disputing the fact that the Defendant Perkins in this case was incarcerated.

The question is whether he was… whether he was in custody for purposes of Miranda, interrogated for purposes of Miranda and whether in general he was subjected to any kind of–

Thurgood Marshall:

Well, what was the difference between the interrogation here and in Miranda?

Marcia L. Friedl:

–The difference is the suspect was able to… that in Miranda, Miranda contemplated the situation where the police officer is a known police officer… is interrogating a suspect.

Thurgood Marshall:

Is there any… is there any difference between the known police officer and the unknown police officer?

Marcia L. Friedl:

Absolutely.

A world of difference.

Thurgood Marshall:

Is that… well, what is the other difference?

Marcia L. Friedl:

The… the difference is that when a suspect doesn’t perceive that he’s speaking to a governmental agent then the… those pressures that Miranda was talking about, the pressures of police domination, can’t occur.

Thurgood Marshall:

Well, why did they insist that he be in custody in Miranda?

Marcia L. Friedl:

Because… because interrogation is not sufficient.

Marcia L. Friedl:

It’s clear that… that it’s not an inherently… although it does create pressures for a… for an individual to go into the police station and speak with the police officer.

That’s going to always create pressure.

But it’s not the type of inherently compelling pressure that Miranda is talking about.

I mean, that’s why Miranda also requires, and this Court has subsequently interpreted Miranda to require both custody and interrogation.

The… the… the… the only risk of pressure that is… necessarily accompanies undercover questioning in the jailhouse arises from the psychological… that… that was noted by this Court in Henry… the psychological need to reach for aid when a person is in confinement.

Now, even in the Sixth Amendment context where the very concern of… is interference with an indicted suspect’s right to protection from his own ignorance in confrontations with the government.

Even there, this Court in Coleman v. Wilson held it permissible for an undercover cellmate to be placed in a cell to act as a listening post.

Now, for an undercover agent to further guide that conversation by crafty questioning would establish a confrontation in which the suspect’s Sixth Amendment right to counsel would be violated… would be… clearly have been circumvented.

But that same conduct, this guiding of the conversation which occurred in this present case, can’t… doesn’t place any pressure whatsoever on the suspect and much less the inherently compelling pressures that were contemplated by Miranda.

I’d like to reserve the remainder of my time for rebuttal.

William H. Rehnquist:

Thank you, Ms. Friedl.

Mr. Evers.

No, I’m sorry.

Mr. Larkin.

I should have resorted back to my chart.

I’m sorry.

Dan W. Evers:

He’s a government agent.

William H. Rehnquist:

Yes.

[Laughter]

Paul J. Larkin, Jr.:

But the question is are you going to interrogate me.

Antonin Scalia:

Well, we know you’re a government agent.

Paul J. Larkin, Jr.:

Thank you, Mr. Chief Justice, and may it please the Court:

As my colleague has pointed out, the police practice at issue in this case is categorically different from the one that the Court addressed in Miranda.

Miranda addressed and was primarily concerned with the classic police stationhouse interrogation.

And the later cases have also been concerned with the functional equivalent of that… interrogation in the squad car or at the scene of the crime after a person has been arrested and handcuffed.

How about Mathis?

Paul J. Larkin, Jr.:

Mathis involved the situation in which the person was in custody and questioned by a known government agent.

It’s the latter fact that is absent here.

Now, we’ve also taken the view in Point A in our brief that the mere fact that someone is in jail does not automatically mean he must be given Miranda warnings because the context in which there is some type of questioning should also be considered.

But in this case the primary difference between the factual situation we have and what you had in Mathis was this was an undercover agent.

Paul J. Larkin, Jr.:

As my colleague has pointed out, that really distinguishes this case greatly.

In fact, the fact that Respondent was in jail was really significant in this case for only two reasons.

One, it allowed the police to find him.

After all, the police tried to put Charlton and Respondent together outside of jail, at a motel, in order to find out if Respondent was responsible for the Stevenson murder, but Respondent was nowhere to be found.

They found him in a jail and then they had to try something else.

Secondly, the fact that Respondent was in jail meant that Officer Parisi could approach him with a phony escape plan rather than use some other type of ruse, such as the ruse they would have used if they had found Respondent at the motel.

But the fact that he was in jail did not in any way coerce him into confessing.

Look at the case from his perspective and look at the setting in which he found himself.

Did Respondent confess in order to avoid having the book thrown at him by a known police officer?

Respondent thought he was hatching an escape plot with two fellow prisoners.

Did Respondent confess because he believed that the agent had some authority to force him to confess?

No.

Respondent confessed because he believed that the agent was in fact vito bianco, a fellow hit man, who could be trusted with Respondent’s secret.

John Paul Stevens:

Mr. Larkin, let me give you another hypothetical.

Supposing he’s in the interrogation room and they brought in a police officer and they passed him off as a newspaper reporter.

So this newspaper reporter, he wants to interview you for some future story, and they sold him a bill of goods in selling the book rights, or something, to his story.

Would that be permissible?

Paul J. Larkin, Jr.:

It would… it would depend because it’s… it’s the part of your hypo that would have to be elaborated.

If you don’t have any real break, unlike here where you really do, then, as a practical matter, you could say that some of the intimidating presence of the police officer would immediately carry over.

I mean, for example, if they brought a police officer disguised as a reporter in immediately after the defendant–

John Paul Stevens:

Oh, no.

I say before any of that happens.

So, there’s… there’s no… no… they just… he’s in custody.

The only… he’s, as a matter of fact, in custody but he’s not been threatened in any way or no intimidating circumstances other than the fact that he’s in custody, just as this man is in custody.

And you just… instead of using a fellow inmate, you just use somebody dressed up as a reporter or a… or a… how about a priest?

And say he’s… come in and say, I’d like you to tell me what really happened.

Paul J. Larkin, Jr.:

–Well, those are two different–

John Paul Stevens:

A police… a police officer dressed as a priest, I mean.

Paul J. Larkin, Jr.:

–Yeah.

They’re two different hypos and I would give different answers to each one.

Paul J. Larkin, Jr.:

I would say that Miranda wouldn’t apply to either one, but the latter one, with the priest, would violate due process.

Not the newspaper reporter.

And so for purposes of this case, they would… since this involves only Miranda, they would be treated the same.

There’s no intimidating presence there.

I mean, in that sort of circumstance, unlike… you know, unlike this case–

John Paul Stevens:

But why is the… why is the priest… phony priest a violation of due process?

Paul J. Larkin, Jr.:

–Well, it would be a violation of due process because it would be… it would fit within one half of the two concerns the Court has in confession cases.

One half on the due process is whether or not the police practice is likely to elicit a false confession.

John Paul Stevens:

Well, but that certainly wouldn’t elicit false confessions.

Paul J. Larkin, Jr.:

That’s right.

You don’t–

Paul J. Larkin, Jr.:

This fits in the second half–

–No.

Paul J. Larkin, Jr.:

–which is whether or not the practice is one that is offensive to civilized standards of decency.

John Paul Stevens:

Well, why is that so offensive?

I mean, why is that any more offensive than sending in another fellow saying, I want to… let’s go out and escape together?

I mean, why… I don’t know why a phony priest is any more offensive than a phony prison break.

Paul J. Larkin, Jr.:

Well, there are… one, dealing with someone who’s about to commit a crime isn’t one that society is unwilling to allow the police to do.

It’s an essential part of law enforcement.

It’s like sending in an undercover officer to… to purchase narcotics in a crack house.

In the case of a priest, society, I think, is unwilling to allow the police to do that because it may prey on a person’s peculiar sensibilities.

It’s one that, you know, society has always recognized.

That’s why, for example, society generally would, I guess, recognize a communication in confidence in that context.

But communications, like the ones here that are designed to put together an escape plot and to beat up an elderly prison guard in the process, don’t even remotely fall into that for the circumstance.

So I don’t think society would put this type of practice that we have here out of bounds.

In fact, but for the fact that this was a jail cell–

Anthony M. Kennedy:

Well… well, the fact… the fact, Counsel, that he agreed that he was going to beat up a prison guard… your case really doesn’t turn on that.

Paul J. Larkin, Jr.:

–Well,–

Anthony M. Kennedy:

Your case turned on the fact that he’s not in custody.

Paul J. Larkin, Jr.:

–Well, it–

Anthony M. Kennedy:

Or that… that he… that there is no coercive environment.

Paul J. Larkin, Jr.:

–It doesn’t turn on the fact that he agreed to… to beat up a prison guard.

What it does, I think, is add a little context to what happened.

Anthony M. Kennedy:

It adds a little color, but it adds nothing legally significant, correct?

Paul J. Larkin, Jr.:

Well, the coloring is important.

I mean, after all, the reason for having a police officer there is a big distinction, a crucial one, we believe… is that it was essential to Miranda that the suspect would know that the person sitting across the table from him in a police interrogation room was a police officer.

The police officer is the one who holds the suspect’s fate in his hands.

The police officer is the one who may instill in the suspect the belief that unless he confesses he’ll never be released, or that if he is silent and stands on his rights, he is likely to pay a very dear price for it.

So there… that… these sort of facts are important.

And undercover officer, by definition, can’t use the fact that he’s a police officer as a means of intimidation.

An undercover officer obviously can’t threaten someone who is already in jail when the officer is posing as a fellow prisoner, with having the authority to keep that other person in custody until he confesses.

The only weapon open to an undercover officer is guile.

And that, as the Court has recognized in cases such as Hoffa, in cases such as Atchley, in cases such as Frazier v. Cupp–

Thurgood Marshall:

There was another difference in Hoffa.

Hoffa was not in custody.

Paul J. Larkin, Jr.:

–Correct.

This–

Thurgood Marshall:

Well, why say it’s the same as Hoffa?

Paul J. Larkin, Jr.:

–Well, at the… at that level that doesn’t distinguish this case from Atchley.

It–

[inaudible]

Paul J. Larkin, Jr.:

–Well, in Atchley–

Thurgood Marshall:

Just ignore the fact that Hoffa was not in custody.

Paul J. Larkin, Jr.:

–Hoffa was not but Atchley was.

Atchley was questioned by an undercover, by an insurance agent who was wired.

Thurgood Marshall:

And in custody.

Paul J. Larkin, Jr.:

No, Atchley was in prison and he was questioned by–

Thurgood Marshall:

He was in prison?

Paul J. Larkin, Jr.:

–Yes.

Prison or jail.

Paul J. Larkin, Jr.:

He was questioned by an insurance–

Thurgood Marshall:

Hoffa was in his office in his home.

Paul J. Larkin, Jr.:

–No, no.

I didn’t say Hoffa.

I said Atchley.

In–

Thurgood Marshall:

Well, I’m talking about Hoffa.

Paul J. Larkin, Jr.:

–No, I agree.

There’s that difference between this case and Hoffa.

Thurgood Marshall:

Well, why do you keep bringing it up?

Paul J. Larkin, Jr.:

Well, because–

Thurgood Marshall:

Do you promise not to bring it up again?

Paul J. Larkin, Jr.:

–I promise I won’t bring it up again.

[Laughter]

But that… that sort of fact… even though I won’t mention the name of the case… is… is crucial to looking at this sort of problem.

As we’ve explained in our brief and as the state has explained in its brief and at oral argument, the fact is really that he was not subject to a custodial interrogation, which is a concept.

It’s not simply custody, it’s not simply an interrogation in its entire concept.

This scenario here doesn’t engage the types of concerns that gave rise to Miranda, and obviously it can’t be regulated by the same ground-rules without simply forbidding it altogether.

For the reasons we’ve given in our brief and that I’ve tried to summarize here, because this is not the same type of setting and can’t be regulated in the same way, the police shouldn’t be made to try to act in the same way.

Unless the Court has any further questions–

John Paul Stevens:

Let me just summarize it.

Your… your basic position is this is not a Miranda case, this is a due process case, and there’s nothing offensive about the practice?

Paul J. Larkin, Jr.:

–Correct.

William H. Rehnquist:

That’s your… yeah, okay.

Thank you, Mr. Larkin.

Now it’s your turn, Mr. Evers.

Dan W. Evers:

Mr. Chief Justice, and may it please the Court:

I represent the Respondent, Lloyd Perkins, in this case.

We come before this Court today requesting Your Honors to affirm the judgments of the courts below.

The judgment of the Appellate Court of Illinois, Fifth Judicial District, which affirmed the order of the Circuit Court of St. Clair County suppressing statements made by my client, Lloyd Perkins, to the undercover agent, John Parisi.

Dan W. Evers:

It is our contention that the well-settled law and principles of Miranda apply to this case.

Well, what’s your closest case?

Dan W. Evers:

Our closest case?

Byron R. White:

What’s… what’s… what case here gives you most support do you think?

Dan W. Evers:

I believe almost every Miranda case decided by this Court–

Byron R. White:

Well, which one… which one is closest?

Dan W. Evers:

–In terms of the facts of the case, I would have to say Mathis, followed by United States v. Henry.

Byron R. White:

Well, Mathis… you don’t think it makes any difference that the person being interrogated didn’t know that… that there was… that he was dealing with a police officer in this case, whereas in Mathis he did?

Dan W. Evers:

No, Your Honor.

I don’t believe it makes any difference because the Fifth Amendment is not only a right to the people, but a limitation upon the government and it’s directed as a limitation to the government–

Byron R. White:

Yeah, but what–

Dan W. Evers:

–government, and–

Byron R. White:

–What was Miranda aimed at anyway?

Was it a prophylactic rule against coercion?

Dan W. Evers:

–It’s a prophylactic rule against coercive governmental action.

In our case here we will contend, and we do contend, that there is governmental action which can be coercive.

And that coercion is found in the trickery, deceit, cajoling or the ruse used by the undercover agent here, John Parisi.

William H. Rehnquist:

Well, but coercion… if you look up coercion in the dictionary, it means something quite different from trickery or ruse or deceit.

Coercion means, you know, overwhelming the person with the threat of government force in some way.

Trickery or deceit may have equally significant consequences for his decision, but they’re… they’re not the same thing.

Dan W. Evers:

Well, I would suggest that trickery and deceit is a subspecies of coercion.

Antonin Scalia:

Are you–

–But it’s… but it’s not true.

I recommend you to the nearest English dictionary.

[Laughter]

It’s the difference between the con man who tricks you out of the money and somebody who says, give me your money or I’ll break your leg.

I mean, you don’t see the difference between those two?

You consider both of those to be… to be coercion?

Dan W. Evers:

Well, in–

Antonin Scalia:

I mean, one–

Dan W. Evers:

–terms of how you present the trickery, I think that it can be coercion because if–

Antonin Scalia:

–In one case you give your money over voluntarily.

In the other case it’s exacted under… under threat of harm.

Dan W. Evers:

–The form of the trickery can lead towards the coercion by compelling the person to believe that he has to do something when his free will would not so incline him to do.

I believe that you’re looking at coercion as merely physical force.

I would suggest that coercion can be psychological and mental force also.

I believe that it’s important to look at this case in terms of what the procedural posture of it is and what happened in the courts below because the facts of the case are this.

The Defendant Lloyd Perkins was charged with murder in the Circuit Court of St. Clair County.

Harry A. Blackmun:

Where–

Dan W. Evers:

He filed–

Harry A. Blackmun:

–Where is that?

Belleville.

Dan W. Evers:

–That’s Belleville, East St. Louis.

Harry A. Blackmun:

It isn’t… it isn’t Mt.

Vernon?

Dan W. Evers:

No, Your Honor.

Mt.

Vernon is Jefferson County and it’s several miles to the east.

After the charge was made, the Defendant filed a motion to suppress the confession.

A hearing was held before the Circuit Court of St. Clair County at which evidence was presented.

This evidence is the facts upon which the circuit court based its decision.

Its decision was to take those facts and apply the settled law of Miranda to it and conclude whether Miranda had been violated or whether it had not been violated.

The circuit court determined as a factual matter that Miranda had been violated.

It concluded that the Defendant was in custody, he was in jail.

It concluded that he’d been interrogated or questioned.

Parisi and Charlton specifically questioned the Defendant, Lloyd Perkins.

And it concluded that Parisi and Charlton were law enforcement agents and they initiated that questioning.

Those are the facts found by the circuit court.

When the state filed the notice of appeal from that decision, it went to the Appellate Court of Illinois and in the Appellate Court of Illinois the state had to bear the burden of showing that those factual determinations were incorrect, were manifestly erroneous.

The decision of the Appellate Court of Illinois is nothing more than a statement that those facts were not manifestly erroneous.

Dan W. Evers:

And I would suggest that before this Court… after the state loss in the Fifth District Appellate Court, a petition for leave to appeal to the Illinois Supreme Court, and that court denied leave to appeal and the state brought this cert petition which this Court grated… I would suggest that this Court also look at what happened below as findings of fact which need to be given due deference because they are not manifestly erroneous.

Antonin Scalia:

Mr. Evers, if trickery is just as bad as… as… as what… what we normally call coercion, why… why should Miranda only apply to trickery when… when the person tricked is in custody?

Why… why isn’t it just… why isn’t the trickery just as offensive, and why isn’t there just as much coercion, if you want to call trickery coercion +/?

If Parisi had… had approached your client in the hotel room instead of in jail, would you apply Miranda to that as well?

Dan W. Evers:

I would agree that Miranda–

You would?

Dan W. Evers:

–would not apply for the very important reason–

Antonin Scalia:

Would… would not apply?

Would not apply?

Dan W. Evers:

–Miranda would not apply to the hotel situation–

Antonin Scalia:

Why?

Dan W. Evers:

–because he is not in custody.

He is where he can leave.

He is where he has control to get up and leave whenever he wants.

Antonin Scalia:

But he’s being tricked.

That’s just to say that he isn’t being coerced.

But he’s being tricked just as much.

You say trickery is coercion.

He’s being tricked just as much whether he’s tricked in the jail or out of the jail.

Dan W. Evers:

I would agree with that.

What’s the difference?

Dan W. Evers:

But I believe the key difference is that in a jail he is in a police-dominated, police-controlled, government institution that–

Antonin Scalia:

That has nothing to do with this case.

Dan W. Evers:

–would keep him from–

Antonin Scalia:

He was tricked.

He wasn’t coerced, he was tricked.

But you say that’s enough, tricking is enough.

But it seems to me it follows from… from what you want us to… to hold here that you should apply Miranda everywhere when… when there is trickery.

Dan W. Evers:

–I would not say that, Your Honor.

I would say that jails are different.

Dan W. Evers:

Jails are where people are incarcerated, they’re deprived of their liberty, and the government has an obligation to treat them with due respect towards constitutional principles.

And one of those principles, I would suggest, is that they not be compelled to be witnesses against themselves and–

Antonin Scalia:

I think it’s worse–

Dan W. Evers:

–against their free will.

Antonin Scalia:

–worse to be tricked in my home than I do in jail.

I would… I would get much more annoyed at a government that comes to my house and tricks me than… than one that tricks me when I’m… when I’m in the police custody.

You just feel differently about it?

Dan W. Evers:

I would, Your Honor.

In line with this discussion, I would like to point out to the Court that this case does not involve a non-custodial setting.

And I believe that’s important because I believe the jail setting is the most important point.

This… this case does not involve simply an informant who hears something in the jail and then goes tells the government.

This case involves a specific designed plan to elicit incriminating remarks from the Defendant, Lloyd Perkins.

And this is not just something that was on the spur of the moment by the police.

This is a thought-out plan to get at Lloyd Perkins.

It’s been thought out for several weeks.

And when they discovered that he was at the Montgomery County Jail in which he was incarcerated at the time for aggravated battery, they made the specific decision to get Agent Parisi.

And I think that if you look at the plain holding of Miranda, you will see that this case falls squarely within the plain holding of Miranda in which Your Honors stated that these confessions or statements cannot be used unless there is demonstrated a knowing waiver of the Fifth Amendment privilege against self-incrimination.

It’s not that they were not able to go and talk to the Defendant Lloyd Perkins.

They were able to go and talk to him.

It’s that they were not able to use that information unless they got a valid voluntary waiver.

I don’t think the state would contend at all that if a uniform police officer went to Lloyd Perkins in his cell and said, I want to talk to you, that he had to give Miranda to the Defendant.

We see no difference between the uniformed police officer and the undercover agent.

They are both agents, law enforcement agents of the state.

They both have to follow the dictates of Miranda.

Under Miranda there has to be questioning or interrogation.

I would suggest to this Court that that is amply demonstrated by the record.

What happened is that Charlton and Parisi went to Lloyd Perkins, spun this tale and then started asking him questions specifically designed to grab the information that they wanted.

They did not sit around and just talk about the weather or talk about anything that was of no consequence and Lloyd Perkins blurted this out.

They talked about and they questioned specifically to get to what they wanted.

And when Lloyd Perkins might become quiet, they would chime in and ask another question designed specifically to bring something else out, something to be more incriminating.

Dan W. Evers:

And, of course, Miranda is concerned with their being a law enforcement agent involved.

It’s not just the Fifth Amendment that is important because there was questioning and there was custody.

It’s important because there’s a governmental agent involved, not some private citizen.

The key concern in Miranda is that the government has to be circumscribed in its conduct towards its citizens.

Here we definitely do have a law enforcement agent.

He was an undercover agent in the narcotics trade.

He was a police officer, and he was sworn to uphold the laws of the State of Illinois and the Constitution of the United States.

The former Department of Corrections inmate, Charlton… by this time he had become a law enforcement agent because he was working hand-in-hand with the police.

He was following the dictates and plans of the police and his only purpose within this ruse was to trick and cajole Lloyd Perkins into the confidence of Agent Parisi.

We would also suggest that the concerns of the Court in Miranda, concerns that powered the decision of that Court, are present in this case.

In Miranda this Court was concerned about trickery.

It was concerned about deceit.

It was concerned about the police-dominated atmosphere of custody and jails.

In Miranda this Court talked about the psychological ploys that could be employed and was very concerned about the psychological coercion exerted by the environment in custody.

To touch upon a concern of Justice Marshall a little while ago, if this case is ripped out from the cover of Miranda, then you will simply have the police circumventing Miranda by using undercover agents in the old Mutt and Jeff technique in which now, instead of Jeff being the good cop, he has become the good companion, the good inmate, while Mutt is the terrifying police officer who sets up and produces the mental coercion in the defendant, in the accused, in which he becomes susceptible to the ploys and trickery of the undercover agent.

If this Court removes the protections of Miranda from these situations, then you will simply have the forms of psychological coercion being moved into this arena.

Finally, I’d like to note that this Court has noted that this is a factual matter.

In Patterson v. Illinois, this Court noted that surreptitious conversations between an undercover police agent could be interrogation under Miranda and Miranda would apply.

Under footnote 9 of Patterson, the issue is not whether Miranda applies.

The issue is the factual question of whether there is custody, whether there is interrogation and whether there is a police officer.

We have all three elements in this case.

And that’s what this Court has to focus upon, is those three elements of Miranda.

Custody, interrogation and questioning, and the law enforcement officer initiating that questioning.

Consequently, if Your Honors do not have any other questions–

John Paul Stevens:

Let me ask you just one question, if I may.

Would the case be different in your view if the law enforcement officer said nothing and the other inmate did all the questioning?

Dan W. Evers:

–Charlton?

John Paul Stevens:

I don’t have the names in my–

Dan W. Evers:

In my view it would not because under my view of the case Charlton is a law enforcement agent by this.

He is acting under the authority and orders of the police.

Dan W. Evers:

If you’re asking whether the undercover agent is sitting around with somebody who was not working with him and he just listened to a conversation between those two, I would say that would be different, that there was no interrogation between the police officer, the law enforcement agent, and these two inmates.

I think that would be the difference between a listening post and an interrogator.

–Thank you.

Dan W. Evers:

Consequently, Your Honors, we would ask that you affirm the judgments below and affirm the suppression of the statements.

William H. Rehnquist:

Thank you, Mr. Evers.

Ms. Friedl, you have six minutes remaining.

Marcia L. Friedl:

Well, Your Honors, if there aren’t any questions, for all the reasons presented by the State of Illinois and by the Solicitor General’s Office, we request that the Illinois Appellate Court’s extension of Miranda be reversed.

William H. Rehnquist:

Thank you, Ms. Friedl.

The case is submitted.

The honorable court is now adjourned until tomorrow at ten o’clock.