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Chief's Counsel

New U.S. Supreme Court Decision Further Illuminates the Two Rights to Counsel

By Karen J. Kruger, Assistant Attorney General of Maryland, Baltimore

When a person stands accused of a crime, "the lawyer is the one person to whom society as a whole looks to as the protector of the legal rights of that person in his dealings with the police and the courts."1The constitutional right to the assistance of an attorney—the right to counsel—is one of the key components of the American criminal justice system. Each of the Fifth and Sixth Amendments to the U.S. Constitution guarantees a right to counsel in certain situations. But the two rights to counsel apply in different circumstances and, when present, involve different rules. This creates a sometimes confusing body of law that officers must nonetheless understand.

The Fifth Amendment, through Miranda, entitles a suspect to the assistance of counsel during custodial interrogation by law enforcement officers.2 The Sixth Amendment guarantees a formally charged defendant a right to counsel, which protects him from any effort by the government to deliberately elicit from him incriminating information about the charged matter.3 Both rights to counsel may be waived provided the subject is advised of and understands the rights involved. Fellers v. United States, a January decision of the U.S. Supreme Court, lluminates the differences between the two rights.4

Facts and Lower Court Analyses

A grand jury in Lincoln, Nebraska, indicted John J. Fellers for conspiracy to distribute methamphetamine, and police officers went to his home to arrest him. They knocked on his door, identified themselves, and asked if they could come into the house. Fellers invited the officers in. The officers told Fellers they were there to discuss with him his involvement in methamphetamine distribution. They also told him that they had a federal warrant for his
arrest and that a grand jury had indicted him for conspiracy to distribute controlled dangerous substances, and named four of the other persons referred to in the indictment. The officers did not advise Fellers of his Miranda rights. Although they asked him no questions, Fellers then told the officers that he knew the four individuals and had used methamphetamine with them. The officers transported Fellers to the county jail and then advised him of his rights, which he waived. He agreed to speak to the officers, repeated that he had associated with the others who were named in the indictment, and admitted having loaned money to one of them even though he suspected that she was involved in drug dealing.

Before trial, Fellers filed a motion to suppress all of his statements, arguing that they were obtained in violation of his rights. A magistrate judge recommended that both sets of statements be suppressed because, according to that judge, the police did not advise Fellers of his Miranda rights at his home; Fellers was in custody when he made the statements in his home; the officers used deceptive techniques to prompt him to make statements; and Fellers would not have made the subsequent incriminating jailhouse statements but for the illegally obtained first statement.

When the U.S. district court (the trial court) reviewed the motion, it offered a different view. That court suppressed the "unwarned" statement that Fellers made at his home but allowed the prosecution to use the jailhouse statement because Fellers had voluntarily waived his Miranda rights before making that statement. The jury convicted Fellers of conspiracy to possess with intent to distribute methamphetamine.

Fellers appealed his conviction to the U.S. Court of Appeals for the Eighth Circuit and argued that the lower court should have suppressed his jailhouse statements because "the primary taint of the improperly elicited statements made at his home was not removed by the recitation of his Miranda rights at the jail."5 The court of appeals held that since the police did not "interrogate" Fellers at his home and because Fellers waived his Miranda rights at the jail, his waiver of his jailhouse statement was properly admitted against him.

But Fellers also contended that the officers' actions at his home violated his Sixth Amendment right to counsel because he had already been formally charged. Since the officers did not interrogate Fellers at his home, and because that first statement was suppressed, the court of appeals did not agree. But the court of appeals did not consider whether the second statement should have been suppressed because the earlier interaction may have violated Fellers's Sixth Amendment right to counsel.6 Fellers appealed to the U.S. Supreme Court.

U.S. Supreme Court Review

The Sixth Amendment right to counsel attaches at the commencement of judicial proceedings "whether by way of formal charge, preliminary hearing, indictment, information, or arraignment,"7and applies "even when there is no interrogation and no Fifth Amendment applicability."8 In some ways, it is therefore the broader right to counsel.9

From the moment of formal charging, it prohibits, absent a knowing waiver, any government efforts to "deliberately elicit" from a defendant any incriminating information concerning the crimes charged. 10However, if a defendant waives his Sixth Amendment right to counsel, or makes incriminating statements that are not in response to government agents' intentional efforts to elicit information, his statements may be used against him.11

In Fellers the court of appeals held that the second statement, the so-called jailhouse statement, was properly admitted—finding that Fellers had knowingly and voluntarily waived his Miranda rights before making it. Applying the analysis of Oregon v. Elstad,12 a Fifth Amendment case, it found that Fellers's jailhouse waiver made any problems with the interaction at his home inconsequential. But that court did not determine whether a prior Sixth Amendment violation might have tainted the jailhouse statement.

The Supreme Court unanimously ruled that the lower court failed to appreciate fully that the police "deliberately elicited" the statements Fellers made at his home, and thereby violated his Sixth Amendment right to counsel. The Court emphasized that the Sixth Amendment right to counsel differs from the Fifth Amendment (Miranda) custodial-interrogation principle, and may apply even when the police do not expressly interrogate a defendant. According to the unanimous Court, "There is no question that the officers in this case 'deliberately elicited' information" from Fellers during the contact at his home.13

Moreover, the Supreme Court noted it has "not had occasion to decide whether the rationale of Elstad applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel notwithstanding earlier police questioning in violation of Sixth Amendment standards."14 The Supreme Court therefore sent the Fellers case back to the court of appeals, instructing it to decide whether the use of the Miranda procedures at the jail was sufficient to produce a valid waiver of the Sixth Amendment right to counsel, in view of the fact that the earlier statement was deliberately elicited in violation of that right.

In Patterson v. Illinois the Supreme Court held that Miranda warnings were sufficient to allow a knowing waiver of the Sixth Amendment right to counsel, at least when a defendant is also informed that he has been formally charged in the matter that the police wish to discuss.15 So the court of appeals must further consider this case and decide whether Fellers's Miranda-style waiver at the jail was a valid waiver of the Sixth Amendment right to counsel notwithstanding the earlier Sixth Amendment violation.

Summary and Conclusion

The Supreme Court has made clear that a person has a Sixth Amendment-based right to the assistance of counsel after formal charging at any effort by government authorities to deliberately elicit from him incriminating information regarding the crimes that are charged. However, that right can be waived, and the "warnings [that] suffice for Miranda's purposes will also be sufficient in the context of post-indictment questioning," depending on specific circumstances.16

The import of the U.S. Supreme Court decision in Fellers is that the interaction at his home was a deliberate elicitation of incriminating information that itself required a prior waiver of the Sixth Amendment right to counsel. Although he may not have been in custody, he had been formally charged. The Fifth Amendment right to counsel may not have attached, but the Sixth Amendment right to counsel certainly had. There may have not been any interrogation, but officers deliberately elicited incriminating information. The cure would have been a waiver—given prior to the conversations at Fellers's home—of his Sixth Amendment right to counsel.

This waiver could have been accomplished, according to Patterson v. Illinois, by advising Fellers of his indictment and then using Miranda-type warning and waiver procedures. His subsequent waiver would have then permitted both deliberately elicitation and direct interrogation regarding the methamphetamine conspiracy and other criminal involvements.

Author’s note: The views expressed in this article are the author's alone and not those of the Maryland attorney general or his staff.

1 Fare v. Michael C., 442 U.S. 707, 719 (1979).
2 Miranda v. Arizona, 384 U.S. 436, 468-69 (1966).
3 Michigan v. Harvey, 494 U.S. 344, 353 (1990).
4 ____ U.S. ____, 124 S. Ct. 1019 (2004).
5 U.S. v. Fellers, 285 F.3d 721, 724 (8th Cir. 2002).
6 Id.
7 Kirby v. Illinois, 406 U.S. 682, 689 (1972).
8 Rhode Island v. Innis, 446 U.S. 291, 300 n. 4 (1980).
9 It is important to note that the Sixth Amendment right to counsel is not general but"offense specific." McNeil v. Wisconsin, 501 U.S. 171, 175-78 (1991).
10 Kuhlman v. Wilson, 477 U.S. 436, 459 (1986) ("deliberate elicitation" defined as "any investigatory techniques that are the equivalent of direct police interrogation").
11 United States v. Stevens, 83 F.3d 60, 64 (2d Cir. 1996).
12 470 U.S. 298 (1985). Under Elstad, "A suspect who has once responded to unwarned (by Miranda) yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Id. at 318.
13124 S. Ct. at 1023.
14 Id.
15 487 U.S. 285 (1988).
16 487 U.S. at 298.


From The Police Chief, vol. 71, no. 4, April 2004. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.

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