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Can police continue an interrogation after invoking the right to counsel?
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Elianna Spitzer is a legal studies writer and a former Schuster Institute for Investigative Journalism research assistant. She has also worked at the Superior Court of San Francisco's ACCESS Center.
Updated on September 06, 2019In Massiah v. United States (1964), the U.S. Supreme Court held that the Sixth Amendment of the U.S. Constitution prevents police officers from deliberately eliciting incriminating statements from a suspect after that suspect has invoked the right to counsel.
In 1958, Winston Massiah was indicted for possession of narcotics aboard a U.S. vessel. He had attempted to traffic drugs from South America to the United States. Massiah retained a lawyer and was released on bail. Another member of the ship’s crew named Colson had also been indicted but on conspiracy charges. He was released on bail as well.
Colson decided to cooperate with federal agents. He allowed an agent to install a listening device in his car. In November 1959, Colson picked up Massiah and parked the car on a random New York street. The two had a lengthy discussion in which Massiah offered several incriminating statements. A federal agent listened to their conversation and later testified at trial to what Massiah had said in the car. Massiah’s attorney objected, but the jury was permitted to hear the federal agent's explanation of the conversation.
Massiah’s attorney alleged that government agents had violated three areas of the U.S. Constitution:
If using a listening device violates the Fourth Amendment, should government agents have been allowed to testify to what they overheard at trial? Did the federal agents violate Massiah’s Fifth and Sixth Amendment rights by intentionally eliciting statements from him while he was not able to get advice from an attorney?
Attorneys on behalf of Massiah argued that the use of a radio device to transmit the car conversation counted as a “search” under the Fourth Amendment’s definition of illegal searches and seizures. When officers listened to the conversation they “seized” evidence from Massiah without a warrant. The attorney argued that evidence gathered without a valid search warrant and without probable cause, otherwise known as “fruit of the poisonous tree”, could not be used in court. The attorney also stated that federal agents deprived Massiah of his Sixth Amendment right to counsel and his Fifth Amendment right to due process of law because no attorney was present during his conversation with Colson.
The solicitor general, on behalf of the government, argued that the federal agents had a duty to track down leads. In this specific instance, they were justified in using Colson to surveil and gain information from Massiah. The stakes were too high, the solicitor general argued, especially considering the fact that officers were trying to uncover the identity of a buyer for a large amount of narcotics.
Justice Potter Stewart delivered the 6-3 decision. The Court declined to reflect on the Fourth Amendment claim, focusing on the Fifth and Sixth Amendment claims instead. Justice Stewart wrote that Massiah had been denied Sixth Amendment protections when officers used Colson to get Massiah to admit to wrongdoing.
The majority found that the right to an attorney applies inside and outside police stations. An attorney should have been present if agents planned to interrogate Massiah, regardless how they interrogated him and where, Justice Stewart wrote.
Justice Stewart added that, "the defendant's own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial."
Justice Stewart noted that the majority was not questioning the use of police tactics to obtain evidence against a serious offender. It was "entirely proper" to continue investigations and interrogations post-indictment. However, those interrogations must not violate the suspect's right to due process of law.
Justice Byron White dissented, joined by Justice Tom C. Clark and Justice John Marshall Harlan. Justice White argued the decision in Massiah v. United States was a "thinly disguised" way of prohibiting voluntary out-of-court admissions and confessions. Justice White suggested that the ruling might impede trial courts in their "quest for truth."
Justice White wrote:
"Carried 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."
Justice White added that the absence of an attorney during admission of guilt should only be one factor in determining whether or not the admission was voluntary.
In Massiah v. United States, the Supreme Court found that the Sixth Amendment right to counsel attaches even after proceedings have begun. Supreme Court cases following Massiah aimed to clearly define what constitutes an active interrogation and investigation. Under Kuhlmann v. Wilson, for example, government agents can listen in on a conversation between an informant and a suspect if they have not directed the informant to question the suspect in any way. The overall significance of Massiah v. United States has held up over time: someone has the right to an attorney even during an investigation.
