Constitutional Guide to Using Cellmate Informants
Over the years, legal scholars have debated the legality and propriety of using cellmate informants.13 min read
2. Fifth Amendment — Due Process
3. Sixth Amendment — Right to Counsel
A Constitutional Guide to Using Cellmate Informants
By Kimberly A. Crawford, J.D., 12/95
[Special Agent Crawford is a legal instructor at the FBI Academy.]
Over the years, legal scholars have debated the legality and propriety of using cellmate informants. While some scholars find the practice a "mere strategic deception [that takes] advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner," (1) others view the use of cellmate informants as being "so offensive to a civilized system of justice that [the practice] must be condemned." (2) Despite this debate, law enforcement officers agree that the use of cellmate informants is an investigative technique that works very well in many cases.
In the 1990 case of Illinois v. Perkins, (3) the U.S. Supreme Court, while not resolving the debate, answered an important question regarding the constitutionality of using cellmate informants. Specifically, the Court held that the use of cellmate informants does not violate the Miranda rule. (4) This decision appeared to clear the way for law enforcement to take advantage of this very effective investigative technique.
However, the permissible use of cellmate informants was again questioned when Perkins subsequently argued successfully in State court that the use of the technique violated his previously invoked Miranda right to counsel. (5) Because the Supreme Court refused to hear the case a second time, (6) the extent to which cellmate informants can be used lawfully against suspects who have earlier invoked a right to counsel remains open to debate in both lower Federal courts and State courts.
This article reviews the decisions in Perkins and examines subsequent cases dealing with the question left unresolved by the Supreme Court. It then provides a guide to the constitutional use of cellmate informants.
Fifth Amendment — Self-Incrimination Clause
The Miranda Rule
The fifth amendment to the U.S. Constitution provides in part that "no person...shall be compelled in any criminal case to be a witness against himself...." (7) Over two decades ago, the Supreme Court in Miranda v. Arizona (8) held that custodial interrogation of an individual creates a psychologically compelling atmosphere that works against this fifth amendment protection. (9) In other words, the Court in Miranda believed that an individual in custody undergoing police interrogation would feel compelled to respond to police questioning. This compulsion, which is a byproduct of most custodial interrogation, directly conflicts with every individual's fifth amendment protection against self-incrimination.
Accordingly, the Court developed the now-familiar Miranda warnings as a means of reducing the compulsion attendant in custodial interrogation. The Miranda rule requires that these warnings be given, and the rights they embody be waived, prior to the initiation of custodial interrogation. This rule, however, is not absolute.
Illinois v. Perkins
In Illinois v. Perkins, (10) the Supreme Court recognized that there are limitations to the rule announced in Miranda. The defendant in Perkins was imprisoned in a State correctional facility on an assault charge, when a former fellow inmate and an undercover officer were placed in his cellblock in an attempt to gather information about a murder Perkins was believed to have committed. When discussing the possibility of a prison break, the undercover officer responded to Perkins' claim that he could smuggle in a gun by asking Perkins whether he had ever "done" anyone. In reply, Perkins described at length a murder for hire he had committed. The following day, Perkins was charged with murder.
Prior to trial, Perkins moved to suppress the statements made to the undercover officer. Because no Miranda warnings had been given to Perkins prior to his conversation with the undercover officer, the trial court granted Perkins' motion to suppress. The Appellate Court of Illinois, holding that all undercover contacts with prisoners that are likely to elicit incriminating responses violate the rule in Miranda, affirmed the suppression order. (11)
The U.S. Supreme Court reversed the appellate court's decision and expressly rejected the argument that "Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent." (12) Rather, the Court concluded that not every custodial interrogation creates the psychologically compelling atmosphere that Miranda was designed to protect against. When the compulsion is lacking, so is the need for Miranda warnings.
The Court in Perkins found the facts at issue to be a clear example of a custodial interrogation that created no compulsion. Pointing out that compulsion is "determined from the perspective of the suspect," (13) the Court noted that Perkins had no reason to believe that the undercover officer had any official power over him, and therefore, he had no reason to feel any compulsion. On the contrary, Perkins bragged about his role in the murder in an effort to impress those whom he believed to be his fellow inmates. Miranda was not designed to protect individuals from themselves. Consequently, the Court held there was no violation of Miranda and remanded the case to the Illinois courts for further proceedings.
On remand, Perkins moved once again to have his statements suppressed. Perkins' new motion was based on an allegation that, when arrested on the assault charge, he was advised of his rights and requested an attorney. Therefore, Perkins argued the statements subsequently made to the undercover officer violated his Miranda right to counsel as delineated in Minnick v. Mississippi. (14)
The Minnick Rule
When Miranda warnings are given to individuals in custody who then invoke either their rights to silence or counsel, all interrogation must cease immediately. (15) Whether, and under what conditions, law enforcement officers subsequently may attempt to reinterrogate those individuals depends on which rights have been invoked.
In Michigan v. Mosley, (16) the Supreme Court essentially interpreted the invocation of the right to silence as a request for time so suspects could think clearly about the situation. If that initial request is scrupulously honored, the Court held that attempts to reinterrogate may occur if suspects are afforded the time requested, or if they indicate, by initiating communications, that they have had enough time to think and now wish to talk.
As a result, reinterrogations following an invocation of the right to silence are deemed appropriate if: 1) A reasonable period of time has elapsed; (17) or 2) interrogation was initiated by the suspect. In either case, any renewed attempt to interrogate a suspect must be preceded by a waiver of Miranda rights.
An invocation of the right to counsel, on the other hand, necessarily carries with it a different set of procedural safeguards. Obviously, suspects invoking the right to counsel are not simply asking for time to assess the situation; they are, instead, requesting the assistance of an attorney.
In Minnick, the Court concluded that this invocation of the right to counsel is not satisfied by giving the suspect the opportunity to consult with an attorney. Rather, the Court held that any attempt to interrogate a custodial suspect once that individual has invoked the right to counsel is unlawful unless: 1) The suspect's attorney is actually present; or 2) the suspect changes his mind and reinitiates the interrogation. (18)
Moreover, the protections afforded suspects who invoke their right to counsel remain in effect as long as they remain in custody. These protections are not crime specific (19) because the invocation implies that suspects are not willing to deal with law enforcement on any criminal matter without the benefit of counsel for as long as they remain in custody. (20)
Claiming a prior invocation of his right to counsel when first arrested on the assault charge, Perkins argued that the undercover officer's question "have you ever 'done' anyone" amounted to reinterrogation in violation of the rule established in Minnick. Agreeing with Perkins, the Illinois courts granted the motion to suppress. When the Supreme Court refused the government's request to hear the case a second time, the question of whether cellmate informants could lawfully be used following an invocation of the right to counsel was relegated, at least temporarily, to the lower courts.
Application of Minnick to Cellmate Informants in Federal Courts
Since the Supreme Court decided the first Perkins case, three Federal courts of appeals (21) have addressed the issue raised by Perkins on remand. In direct opposition to the Illinois courts, all three Federal courts concluded that an invocation of the Miranda right to counsel is not a bar to the subsequent use of a cellmate informant. Although unanimous in their decisions, the three Federal courts are not in complete agreement as to the reasons for reaching this conclusion.
Two of the three Federal courts of appeals reached their conclusion by interpreting the Supreme Court's decision in Perkins as excluding the use of cellmate informants from the definition of interrogation for purposes of Miranda. (22) The case of United States v. Stubbs (23) is illustrative.
United States v. Stubbs
In Stubbs, the defendant was arrested when a customs official found cocaine on Edwards, her traveling companion. Following the arrest, defendant was advised of her Miranda rights and immediately invoked the right to counsel. Edwards, on the other hand, immediately confessed and agreed to assist the government in its case against defendant.
While incarcerated together, defendant reportedly told Edwards during a conversation that she would have to "take the rap" for defendant, but that defendant would take care of Edward's children. Edwards later testified regarding this conversation, and defendant was convicted.
On appeal, defendant claimed the use of her friend as a cellmate informant was interrogation in violation of her fifth amendment right to counsel invoked when she received her Miranda warnings. In support of her claim, defendant relied on the Supreme Court's language in Rhode Island v. Innis, (24) which defined interrogation as "not only...express questioning, but also...any words or actions on the part of the police...that the police should know are reasonably likely to elicit an incriminating response from the suspect." (25) Because law enforcement officers should have known that placing Edwards in her cell was "reasonably likely to elicit an incriminating response," defendant argued that the tactic was reinterrogation in violation of her invoked right to counsel.
The U.S. Court of Appeals for the 11th Circuit, however, noted that any determination of whether law enforcement activity amounts to interrogation must "focus primarily upon the perceptions of the suspect, rather than the intent of the police." (26) Reading the Supreme Court's decision in Perkins as a further refinement of the definition of interrogation, the court of appeals concluded that the use of cellmate informants does not amount to interrogation because no compulsion is perceived by the suspect. (27)
Alexander v. State
A third Federal court of appeals reached the conclusion that an invocation of the Miranda right to counsel is not a bar to the use of cellmate informants by a more direct approach. In Alexander v. State, (28) the Court of Appeals for the Second Circuit, when confronted with defendant's claim that he had invoked his Miranda right to counsel prior to the government's use of a cellmate informant, regarded the claim as irrelevant and made the following statement:
Regardless of whether Alexander properly invoked his right to counsel, there is no support for the concept of a fifth amendment right to counsel which bars conduct not prohibited by Miranda itself. It is the fifth amendment's prohibition against compelled self-incrimination which provides the constitutional underpinning for the prophylactic Miranda rules, including notice of the right to counsel. Absent a police dominated interrogation, the fifth amendment right to counsel does not attach. (29)
Conclusions Moving Forward
Despite the fact that the Federal courts are not in agreement as to why the invocation of the Miranda right to counsel does not bar the subsequent use of cellmate informants, the logic of their conclusion is sound. Knowing, as a result of Perkins, that the use of a cellmate informant does not violate Miranda, it would be incongruous to hold that the technique violates Minnick, which is merely an interpretation of the rights guaranteed in Miranda.
When considering the use of a cellmate informant, however, law enforcement officers should be mindful that this issue remains unresolved by the Supreme Court and may be deemed unlawful by State courts following the reasoning of the Illinois court in Perkins. Therefore, the use of cellmate informants after an invocation of the right to counsel should be reviewed by a legal advisor or prosecutor to ensure the technique is legal in a particular jurisdiction.
Fifth Amendment — Due Process
In addition to the self-incrimination clause, the fifth amendment to the U.S. Constitution also provides that "no person shall be...deprived of life, liberty, or property, without the due process of law." (30) The due process clause has been interpreted by the Supreme Court as requiring that all defendants in criminal prosecutions be treated with fundamental fairness. (31)
With respect to confessions, the Court has held that to be fair, a confession must be voluntary. (32) To coerce a suspect into making an involuntary statement or confession would be unfair, and thus, the use of that statement against the suspect would constitute a violation of due process.
On the other hand, no unfairness or due process violation would result from the use of an uncoerced statement voluntarily made by the suspect. By their very nature, cell-mate informants are not generally considered coercive. The very reason suspects confide in cellmate informants is because suspects feel comfortable with them.
However, it is conceivable that an overzealous cellmate informant may violate a suspect's due process rights by gathering information through the use of threats or abuse. (33) To avoid due process problems, law enforcement officers should select cellmate informants carefully and provide those individuals with clear instructions to ensure that nothing is done to coerce the suspect into making an involuntary statement.
Sixth Amendment — Right to Counsel
Another constitutional concern confronting law enforcement officers contemplating the placement of a cellmate informant is whether the use of the informant will violate the suspect's sixth amendment right to counsel. The sixth amendment to the U.S. Constitution guarantees that "[i]n all criminal prosecutions, the accused shall... have the Assistance of Counsel for his defense." (34)
The Supreme Court has interpreted the sixth amendment as guaranteeing not merely the right to counsel, but more important, the right to the effective assistance of counsel. (35) To be effective, an attorney must be permitted to form a relationship with the accused some time prior to trial, (36) and the government cannot interfere needlessly with that relationship. Thus, to resolve all sixth amendment concerns, law enforcement officers contemplating the use of a cellmate informant must determine two things: 1) Did the suspect's right to counsel attach? and 2) if so, what can a cellmate informant do without interfering with that right?
Right to Counsel Attaches at Critical Stage
Determining whether a suspect's right to counsel has attached simply requires the law enforcement officer to discover whether the suspect has reached a critical stage in the prosecution. The Supreme Court has defined the critical stage as the filing of formal charges (i.e. an indictment or an information) or the initiation of adversarial judicial proceedings. (37)
If no formal charges have been filed against the suspect and no initial appearance before the court has been conducted, no critical stage in the prosecution has been reached, and a cellmate informant can be used without concern for the suspect's sixth amendment right to counsel. If, on the other hand, a critical stage has been reached, the suspect's sixth amendment right to counsel has attached, and extreme caution must be used to ensure that the cellmate informant does not interfere with that right.
Postcritical Stage Uses for Cellmate Informants
Once it is determined that a suspect's sixth amendment rights have attached, the law enforcement officer must realize that there are only two functions a cellmate informant can perform lawfully without interfering with that suspect's right to counsel. These two functions are: 1) Gathering information regarding an unrelated crime, (38) or 2) acting as a listening post. (39)
- Unrelated Crimes. Even though the suspect's right to counsel has attached, a cellmate informant may gather information about an unrelated crime because the sixth amendment is crime-specific. (40) Under the sixth amendment, a suspect only has the right to the assistance of counsel with respect to the crimes formally charged against him. (41) If a cellmate informant is used to elicit information from a suspect that pertains to some unrelated, uncharged crime, there is no unlawful interference with the suspect's right to counsel.
- Listening Post. If a cellmate informant is placed with the intent of gathering information about a crime that is the subject of formal charges against the suspect, the only role the cellmate informant may play is that of a listening post. The Supreme Court has determined that simply placing an informant in the cell of a suspect who has been formally charged does not, in and of itself, constitute a sixth amendment violation. (42) Rather, there must be some deliberate attempt to elicit information regarding those charges from the suspect. (43)
It is the act of deliberate elicitation that creates the sixth amendment violation. Consequently, a law enforcement officer who places an informant in a cell of a formally charged suspect in an attempt to obtain information relating to those charges should be prepared to demonstrate that there was no deliberate elicitation on the part of the informant. (44)
Confined suspects often have an overwhelming desire to talk about their criminal activities with those they consider their peers. Law enforcement officers can take advantage of this phenomenon by placing an informant in the prison population. When doing so, however, officers must be ever mindful of the boundaries set by the fifth and sixth amendments. Thoughtful selection, careful planning, and detailed instruction can ensure that an informant operates within those boundaries and conforms to fifth and sixth amendment standards.
- Illinois v. Perkins, 110 S.Ct. 2394, 2397 (1990).
- 110 S.Ct. 2394, 2400 (Brennan, J., concurring).
- 110 S.Ct. 2394 (1990).
- Miranda v. Arizona, 384 U.S. 436 (1966).
- People v. Perkins, 618 N.E.2d 1275 (Ill. App. 1993).
- Illinois v. Perkins, 114 S.Ct. 2692 (1994)(cert. denied).
- U.S. CONST. amend. V.
- 384 U.S. 436 (1966).
- Id. at 467.
- 110 S.Ct. 2394 (1990).
- People v. Perkins, 531 N.E.2d 141 (Ill. App. 1988).
- 110 S.Ct. 2394, 2397 (1990).
- Id. In Perkins, the Supreme Court used the words "coercion" and "compulsion" interchangeably.
- 111 S.Ct. 486 (1990). Perkins actually claimed that the actions of the government violated Edwards v. Arizona, 101 S.Ct. 1885 (1981). However, because Minnick is a more recent interpretation of the Edwards rule and was in effect at the time of Perkins' motion, this article will analyze the motion under the Supreme Court's decision in Minnick.
- 384 U.S. 436, 474 (1966).
- 423 U.S. 96 (1975).
- In Mosley, 2 hours were considered to be a sufficient period of time.
- In Minnick, the Court stated that "Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities...." 111 S.Ct. 486 at 492.
- See, Arizona v. Roberson, 108 S.Ct. 2093 (1988), where the Supreme Court held that the assertion of the right to counsel is effective against all topics of custodial interrogation.
- In a prison setting, the perpetuality of this rule could make it virtually impossible to conduct routine interrogations of inmates suspected of committing new crimes without having an attorney on hand to represent the inmates' interests.
- Alexander v. State, 917 F.2d 747 (2d Cir. 1990); United States v. Stubbs, 944 F.2d 828 (11th Cir. 1991); and Salkil v. Delo, 990 F.2d 386 (8th Cir. 1993).
- United States v. Stubbs, 944 F.2d 828 (11th Cir. 1991), and Salkil v. Delo, 990 F.2d 386 (8th Cir. 1993).
- 944 F.2d 828 (11th Cir. 1991).
- 100 S.Ct. 1682 (1980).
- Id. at 1689-1690.
- Id. at 1690.
- 944 F.2d. 828 at 832.
- 917 F.2d 747 (2d. Cir. 1990).
- Id. at 751 (citations omitted).
- U.S. Const. amend. V.
- Brown v. Mississippi, 297 U.S. 278 (1938).
- See, e.g., Arizona v. Fulminate, 111 S.Ct. 1246 (1991).
- U.S. CONST. amend. VI.
- Cuyler v. Sullivan, 100 S.Ct. 1708 (1980).
- United States v. Wade, 338 U.S. 218 (1967).
- Massiah v. United States, 377 U.S. 201 (1964).
- Hoffa v. United States, 385 U.S. 293 (1966).
- Kuhlmann v. Wilson, 106 S.Ct. 2616 (1986).
- 385 U.S. 293 (1966).
- 106 S.Ct. 2616 (1986).
Although the burden of proof rests with the defendant on this issue, the government should be prepared to counteract claims of deliberate elicitation.