p. 201MASSIAH v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT.No. 199. Argued March 3, 1964.—Decided May 18, 1964.
Government agents, while continuing to investigate narcotics activ-
ities including those of petitioner, who had retained a lawyer and
was free on bail after indictment, without petitioner’s knowledge
secured an alleged confederate’s consent to install a radio trans-
mitter in the latter’s automobile. An agent was thereby enabled
to overhear petitioner’s damaging statements which, despite his
objection, were used in the trial which resulted in his conviction.
Held: Incriminating statements thus deliberately elicited by fed-
eral agents from the petitioner, in the absence of his attorney,
deprived the petitioner of his right to counsel under the Sixth
Amendment; therefore such statements could not constitutionally
be used as evidence against him in his trial. Pp. 201-207.
307 F. 2d 62, reversed.
Robert J. Carluccio argued the cause and filed a brief
for petitioner.
Solicitor General Cox argued the cause for the United
States. With him on the brief were Assistant Attorney
General Miller and Jerome Nelson.
Mr . Justic e Stewart delivered the opinion of the
Court.
The petitioner was indicted for violating the federal
narcotics laws. He retained a lawyer, pleaded not guilty,
and was released on bail. While he was free on bail a
federal agent succeeded by surreptitious means in listen-
ing to incriminating statements made by him. Evidence
of these statements was introduced against the petitioner
at his trial over his objection. He was convicted, and the
Court of Appeals affirmed.1 We granted certiorari to
1 307 F. 2d 62.
p. 202consider whether, under the circumstances here presented,
the prosecution’s use at the trial of evidence of the peti-
tioner’s own incriminating statements deprived him of
any right secured to him under the Federal Constitution.
374 U. S. 805.
The petitioner, a merchant seaman, was in 1958 a
member of the crew of the S. S. Santa Maria. In April
of that year federal customs officials in New York re-
ceived information that he was going to transport a
quantity of narcotics aboard that ship from South
America to the United States. As a result of this and
other information, the agents searched the Santa Maria
upon its arrival in New York and found in the afterpeak
of the vessel five packages containing about three and a
half pounds of cocaine. They also learned of circum-
stances, not here relevant, tending to connect the peti-
tioner with the cocaine. He was arrested, promptly
arraigned, and subsequently indicted for possession of
narcotics aboard a United States vessel.2 In July a
superseding indictment was returned, charging the peti-
tioner and a man named Colson with the same substan-
tive offense, and in separate counts charging the peti-
tioner, Colson, and others with having conspired to
possess narcotics aboard a United States vessel, and to
import, conceal, and facilitate the sale of narcotics.3 The
petitioner, who had retained a lawyer, pleaded not guilty
and was released on bail, along with Colson.
A few days later, and quite without the petitioner’s
knowledge, Colson decided to cooperate with the govern-
ment agents in their continuing investigation of the
narcotics activities in which the petitioner, Colson, and
others had allegedly been engaged. Colson permitted an
agent named Murphy to install a Schmidt radio trans-
2 21 U. S. C. § 184a.
3 21 U. S. C. §§ 173, 174.
p. 203mitter under the front seat of Colson’s automobile, by
means of which Murphy, equipped with an appropriate
receiving device, could overhear from some distance away
conversations carried on in Colson’s car.
On the evening of November 19, 1959, Colson and the
petitioner held a lengthy conversation while sitting in
Colson’s automobile, parked on a New York street. By
prearrangement with Colson, and totally unbeknown to
the petitioner, the agent Murphy sat in a car parked out
of sight down the street and listened over the radio to
the entire conversation. The petitioner made several
incriminating statements during the course of this con-
versation. At the petitioner’s trial these incriminat-
ing statements were brought before the jury through
Murphy’s testimony, despite the insistent objection of
defense counsel. The jury convicted the petitioner of
several related narcotics offenses, and the convictions
were affirmed by the Court of Appeals.4
The petitioner argues that it was an error of constitu-
tional dimensions to permit the agent Murphy at the
trial to testify to the petitioner’s incriminating state-
ments which Murphy had overheard under the circum-
stances disclosed by this record. This argument is based
upon two distinct and independent grounds. First, we
are told that Murphy’s use of the radio equipment vio-
lated the petitioner’s rights under
the Fourth Amend-
ment, and, consequently, that all evidence which Murphy
thereby obtained was, under the rule of
Weeks v. United
States, 232 U. S. 383, inadmissible against the petitioner
at the trial. Secondly, it is said that the petitioner’s
p. 204Fifth and
Sixth Amendment rights were violated by the
use in evidence against him of incriminating statements
which government agents had deliberately elicited from
him after he had been indicted and in the absence of his
retained counsel. Because of the way we dispose of the
case, we do not reach
the Fourth Amendment issue.
In
Spano v. New York, 360 U. S. 315, this Court re-
versed a state criminal conviction because a confession
had been wrongly admitted into evidence against the
defendant at his trial. In that case the defendant had
already been indicted for first-degree murder at the time
he confessed. The Court held that the defendant’s con-
viction could not stand under
the Fourteenth Amend-
ment. While the Court’s opinion relied upon the totality
of the circumstances under which the confession had been
obtained, four concurring Justices pointed out that the
Constitution required reversal of the conviction upon the
sole and specific ground that the confession had been
deliberately elicited by the police after the defendant had
been indicted, and therefore at a time when he was clearly
entitled to a lawyer’s help. It was pointed out that
under our system of justice the most elemental concepts
of due process of law contemplate that an indictment be
followed by a trial, “in an orderly courtroom, presided
over by a judge, open to the public, and protected by all
the procedural safeguards of the law.”
360 U. S., at 327
(Stewart , J., concurring). It was said that a Constitu-
tion which guarantees a defendant the aid of counsel at
such a trial could surely vouchsafe no less to an indicted
defendant under interrogation by the police in a com-
pletely extrajudicial proceeding. Anything less, it was
said, might deny a defendant “effective representation by
counsel at the only stage when legal aid and advice would
help him.”
360 U. S., at 326 (Dougla s , J., concurring).
Ever since this Court’s decision in the Spano case, the
New York courts have unequivocally followed this con-
p. 205stitutional rule. “Any secret interrogation of the de-
fendant, from and after the finding of the indictment,
without the protection afforded by the presence of coun-
sel, contravenes the basic dictates of fairness in the
conduct of criminal causes and the fundamental rights
of persons charged with crime.” People v. Waterman,
9 N. Y. 2d 561, 565, 175 N. E. 2d 445, 448.5
This view no more than reflects a constitutional prin-
ciple established as long ago as
Powell v. Alabama, 287
U. S. 45, where the Court noted that “. . . during per-
haps the most critical period of the proceedings . . . that
is to say, from the time of their arraignment until the
beginning of their trial, when consultation, thoroughgoing
investigation and preparation [are] vitally important, the
defendants . . . [are] as much entitled to such aid [of
counsel] during that period as at the trial itself.”
Id.,
at 57. And since the Spano decision the same basic con-
stitutional principle has been broadly reaffirmed by this
Court. Hamilton n . Alabama,
368 U. S. 52;
White v.
Maryland, 373 U. S. 59. See
Gideon v. Wainwright, 372
U. S. 335.
Here we deal not with a state court conviction, but with
a federal case, where the specific guarantee of
the Sixth
Amendment directly applies.6 Johnson v. Zerbst, 304
p. 206U. S. 458. We hold that the petitioner was denied the
basic protections of that guarantee when there was used
against him at his trial evidence of his own incriminating
words, which federal agents had deliberately elicited from
him after he had been indicted and in the absence of his
counsel. It is true that in the Spano case the defendant
was interrogated in a police station, while here the
damaging testimony was elicited from the defendant with-
out his knowledge while he was free on bail. But, as
Judge Hays pointed out in his dissent in the Court of
Appeals, “if such a rule is to have any efficacy it must
apply to indirect and surreptitious interrogations as well
as those conducted in the jailhouse. In this case,
Massiah was more seriously imposed upon . . . because
he did not even know that he was under interrogation by
a government agent.” 307 F. 2d, at 72-73.
The Solicitor General, in his brief and oral argument,
has strenuously contended that the federal law enforce-
ment agents had the right, if not indeed the duty, to
continue their investigation of the petitioner and his
alleged criminal associates even though the petitioner had
been indicted. He points out that the Government was
continuing its investigation in order to uncover not only
the source of narcotics found on the S. S. Santa Maria,
but also their intended buyer. He says that the quan-
tity of narcotics involved was such as to suggest that the
petitioner was part of a large and well-organized ring, and
indeed that the continuing investigation confirmed this
suspicion, since it resulted in criminal charges against
many defendants. Under these circumstances the Solici-
tor General concludes that the government agents were
completely “justified in making use of Colson’s coopera-
tion by having Colson continue his normal associations
and by surveilling them.”
We may accept and, at least for present purposes, com-
pletely approve all that this argument implies, Fourth
p. 207Amendment problems to one side. We do not question
that in this case, as in many cases, it was entirely proper
to continue an investigation of the suspected criminal
activities of the defendant and his alleged confederates,
even though the defendant had already been indicted.
All that we hold is that the defendant’s own incriminating
statements, obtained by federal agents under the circum-
stances here disclosed, could not constitutionally be used
by the prosecution as evidence against him at his trial.
Reversed.
Mr . Justi ce White , with whom Mr . Just ice Clark
and Mr . Justi ce Harlan join, dissenting.
The current incidence of serious violations of the law
represents not only an appalling waste of the potentially
happy and useful lives of those who engage in such con-
duct but also an overhanging, dangerous threat to those
unidentified and innocent people who will be the victims
of crime today and tomorrow. This is a festering prob-
lem for which no adequate cures have yet been devised.
At the very least there is much room for discontent with
remedial measures so far undertaken. And admittedly
there remains much to be settled concerning the disposi-
tion to be made of those who violate the law.
But dissatisfaction with preventive programs aimed at
eliminating crime and profound dispute about whether
we should punish, deter, rehabilitate or cure cannot ex-
cuse concealing one of our most menacing problems until
the millennium has arrived. In my view, a civilized
society must maintain its capacity to discover trans-
gressions of the law and to identify those who flout it.
This much is necessary even to know the scope of the
problem, much less to formulate intelligent counter-
measures. It will just not do to sweep these disagreeable
matters under the rug or to pretend they are not there
at all.
729-256 0-65-18
p. 208Whi te, J., dissenting. 377 U. S.
It is therefore a rather portentous occasion when a con-
stitutional rule is established barring the use of evidence
which is relevant, reliable and highly probative of the
issue which the trial court has before it—whether the ac-
cused committed the act with which he is charged. With-
out the evidence, the quest for truth may be seriously im-
peded and in many cases the trial court, although aware
of proof showing defendant’s guilt, must nevertheless
release him because the crucial evidence is deemed inad-
missible. This result is entirely justified in some cir-
cumstances because exclusion serves other policies of
overriding importance, as where evidence seized in an
illegal search is excluded, not because of the quality of
the proof, but to secure meaningful enforcement of the
Fourth Amendment. Weeks v. United States, 232 U. S.
383; Mapp v. Ohio, 367 U. S. 643. But this only empha-
sizes that the soundest of reasons is necessary to warrant
the exclusion of evidence otherwise admissible and the
creation of another area of privileged testimony. With
all due deference, I am not at all convinced that the addi-
tional barriers to the pursuit of truth which the Court
today erects rest on anything like the solid foundations
which decisions of this gravity should require.
The importance of the matter should not be under-
estimated, for today’s rule promises to have wide appli-
cation well beyond the facts of this case. The reason
given for the result here—the admissions were obtained
in the absence of counsel—would seem equally perti-
nent to statements obtained at any time after the
right to counsel attaches, whether there has been an
indictment or not; to admissions made prior to arraign-
ment, at least where the defendant has counsel or asks
for it; to the fruits of admissions improperly obtained
under the new rule; to criminal proceedings in state
courts; and to defendants long since convicted upon evi-
p. 209dence including such admissions. The new rule will
immediately do service in a great many cases.
Whatever the content or scope of the rule may prove to
be, I am unable to see how this case presents an uncon-
stitutional interference with Massiah’s right to counsel.
Massiah was not prevented from consulting with counsel
as often as he wished. No meetings with counsel were
disturbed or spied upon. Preparation for trial was in no
way obstructed. It is only a sterile syllogism—an un-
sound one, besides—to say that because Massiah had a
right to counsel’s aid before and during the trial, his out-
of-court conversations and admissions must be excluded
if obtained without counsel’s consent or presence. The
right to counsel has never meant as much before,
Cicenia v. Lagay, 357 U. S. 504;
Crooker v. California,
357 U. S. 433, and its extension in this case requires some
further explanation, so far unarticulated by the Court.
Since the new rule would exclude all admissions made
to the police, no matter how voluntary and reliable, the
requirement of counsel’s presence or approval would seem
to rest upon the probability that counsel would foreclose
any admissions at all. This is nothing more than a thinly
disguised constitutional policy of minimizing or entirely
prohibiting the use in evidence of voluntary out-of-court
admissions and confessions made by the accused. Car-
ried as far as blind logic may compel some to go, the
notion that statements from the mouth of the defendant
should not be used in evidence would have a severe and
unfortunate impact upon the great bulk of criminal cases.
Viewed in this light, the Court’s newly fashioned exclu-
sionary principle goes far beyond the constitutional priv-
ilege against self-incrimination, which neither requires
nor suggests the barring of voluntary pretrial admissions.
The
Fifth Amendment states that no person “shall be
compelled in any criminal case to be a witness against
p. 210himself . . . .” The defendant may thus not be com-
pelled to testify at his trial, but he may if he wishes.
Likewise he may not be compelled or coerced into saying
anything before trial; but until today he could if he
wished to, and if he did, it could be used against him.
Whether as a matter of self-incrimination or of due
process, the proscription is against compulsion—coerced
incrimination. Under the prior law, announced in count-
less cases in this Court, the defendant’s pretrial state-
ments were admissible evidence if voluntarily made;
inadmissible if not the product of his free will. Hardly
any constitutional area has been more carefully patrolled
by this Court, and until now the Court has expressly re-
jected the argument that admissions are to be deemed
involuntary if made outside the presence of counsel.
Cicenia v. Lagay, supra; Croaker v. California, supra.*
The Court presents no facts, no objective evidence, no
reasons to warrant scrapping the voluntary-involuntary
test for admissibility in this area. Without such evidence
I would retain it in its present form.
This case cannot be analogized to the American Bar
Association’s rule forbidding an attorney to talk to
the opposing party litigant outside the presence of his
counsel. Aside from the fact that the Association’s
canons are not of constitutional dimensions, the specific
canon argued is inapposite because it deals with the con-
*Today’s rule picks up where the Fifth Amendment ends and bars
wholly voluntary admissions. I would assume, although one cannot
be sure, that the new rule would not have a similar supplemental role
in connection with the Fourth Amendment. While the Fifth Amend-
ment bars only compelled incrimination, the Fourth Amendment
bars only unreasonable searches. It could be argued, fruitlessly I
would hope, that if the police must stay away from the defendant
they must also stay away from his house once the right to counsel
has attached and that a court must exclude the products of a rea-
sonable search made pursuant to a properly issued warrant but with-
out the consent or presence of the accused’s counsel.
p. 211duct of lawyers and not with the conduct of investiga-
tors. Lawyers are forbidden to interview the opposing
party because of the supposed imbalance of legal skill
and acumen between the lawyer and the party litigant;
the reason for the rule does not apply to nbnlawyers and
certainly not to Colson, Massiah’s codefendant.
Applying the new exclusionary rule is peculiarly inap-
propriate in this case. At the time of the conversation
in question, petitioner was not in custody but free on bail.
He was not questioned in what anyone could call an
atmosphere of official coercion. What he said was said
to his partner in crime who had also been indicted. There
was no suggestion or any possibility of coercion. What
petitioner did not know was that Colson had decided to
report the conversation to the police. Had there been
no prior arrangements between Colson and the police, had
Colson simply gone to the police after the conversation
had occurred, his testimony relating Massiah’s state-
ments would be readily admissible at the trial, as would
a recording which he might have made of the conversa-
tion. In such event, it would simply be said that
Massiah risked talking to a friend who decided to dis-
close what he knew of Massiah’s criminal activities. But
if, as occurred here, Colson had been cooperating with
the police prior to his meeting with Massiah, both his
evidence and the recorded conversation are somehow
transformed into inadmissible evidence despite the fact
that the hazard to Massiah remains precisely the same—
the defection of a confederate in crime.
Reporting criminal behavior is expected or even de-
manded of the ordinary citizen. Friends may be sub-
poenaed to testify about friends, relatives about relatives
and partners about partners. I therefore question the
soundness of insulating Massiah from the apostasy of his
partner in crime and of furnishing constitutional sanc-
tions for the strict secrecy and discipline of criminal or-
p. 212ganizations. Neither the ordinary citizen nor the con-
fessed criminal should be discouraged from reporting
what he knows to the authorities and from lending his
aid to secure evidence of crime. Certainly after this case
the Colsons will be few and far between; and the
Massiahs can breathe much more easily, secure in the
knowledge that the Constitution furnishes an important
measure of protection against faithless compatriots and
guarantees sporting treatment for sporting peddlers of
narcotics.
Meanwhile, of course, the public will again be the loser
and law enforcement will be presented with another seri-
ous dilemma. The general issue lurking in the background
of the Court’s opinion is the legitimacy of penetrating or
obtaining confederates in criminal organizations. For
the law enforcement agency, the answer for the time be-
ing can only be in the form of a prediction about the
future application of today’s new constitutional doctrine.
More narrowly, and posed by the precise situation in-
volved here, the question is this: when the police have
arrested and released on bail one member of a criminal
ring and another member, a confederate, is cooperating
with the police, can the confederate be allowed to con-
tinue his association with the ring or must he somehow be
withdrawn to avoid challenge to trial evidence on the
ground that it was acquired after rather than before the
arrest, after rather than before the indictment?
Defendants who are out on bail have been known to
continue their illicit operations. See Rogers v. United
States, 325 F. 2d 485 (C. A. 10th Cir.). That an attor-
ney is advising them should not constitutionally im-
munize their statements made in furtherance of these
operations and relevant to the question of their guilt at
the pending prosecution. In this very case there is evi-
dence that after indictment defendant Aiken tried to
p. 213persuade Agent Murphy to go into the narcotics business
with him. Under today’s decision, Murphy may neither
testify as to the content of this conversation nor seize for
introduction in evidence any narcotics whose location
Aiken may have made known.
Undoubtedly, the evidence excluded in this case would
not have been available but'for the conduct of Colson in
cooperation with Agent Murphy, but is it this kind of
conduct which should be forbidden to those charged with
law enforcement? It is one thing to establish safeguards
against procedures fraught with the potentiality of coer-
cion and to outlaw “easy but self-defeating ways in which
brutality is substituted for brains as an instrument of
crime detection.”
McNabb v. United States, 318 U. S.
332, 344. But here there was no substitution of brutality
for brains, no inherent danger of police coercion justifying
the prophylactic effect of another exclusionary rule.
Massiah was not being interrogated in a police station,
was not surrounded by numerous officers or questioned in
relays, and was not forbidden access to others. Law en-
forcement may have the elements of a contest about it,
but it is not a game.
McGuire v. United States, 273
U. S. 95, 99. Massiah and those like him receive ample
protection from the long line of precedents in this Court
holding that confessions may not be introduced unless
they are voluntary. In making these determinations the
courts must consider the absence of counsel as one of
several factors by which voluntariness is to be judged.
See
House v. Mayo, 324 U. S. 42, 45-46;
Payne v.
Arkansas, 356 U. S. 560, 567; Cicenia v. Lagay, supra,
at 509. This is a wiser rule than the automatic rule
announced by the Court, which requires courts and
juries to disregard voluntary admissions which they might
well find to be the best possible evidence in discharging
their responsibility for ascertaining truth.