source: Caselaw Access Project

author: Mr. Justice Blackmun Mr. Justice Marshall, Me. Justice Powell,

license: Public Domain

text:
    FARE, ACTING CHIEF PROBATION OFFICER v. MICHAEL C.
    No. 78-334.
    Argued February 27, 1979 —
    Decided June 20, 1979

      BlacKmutst, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, and Rehnquist, JJ., joined. Marshall, J., filed a dissenting opinion, in which BreNNAN and Stevens, JJ., joined, post, p. 728. Powell, J., filed a dissenting opinion, post, p. 732.

      Mark Alan Hart, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, and James H. Kline and Shunji Asari, Deputy Attorneys General.

      Albert J. Menaster■ argued the cause for respondent. With him on the brief were Wilbur F. Littlefield, Dennis A. Fischer, and Kenneth I. dayman.

        Fred E. Inbau, Frank G. Carrington, Wayne W. Schmidt, George Nicholson, Edwin L. Miller, Jr., and Peter C. Lehman filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.

   Mr. Justice Blackmun

delivered the opinion of the Court.

In Miranda v. Arizona, 384 U. S. 436 (1966), this Court established certain procedural safeguards designed to protect the rights of an accused, under the Fifth and Fourteenth Amendments, to be free from compelled self-incrimination during custodial interrogation. The Court specified, among other things, that if the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial. Id., at 444—445, 473-474.

In this case, the State of California, in the person of its acting chief probation officer, attacks the conclusion of the Supreme Court of California that a juvenile’s request, made while undergoing custodial interrogation, to see his probation officer is per se an invocation of the juvenile’s Fifth Amendment rights as pronounced in Miranda.

I

Respondent Michael C. was implicated in the murder of Robert Yeager. The murder occurred during a robbery of the victim’s home on January 19, 1976. A small truck registered in the name of respondent’s mother was identified as having been near the Yeager home at the time of the killing, and a young man answering respondent’s description was seen by witnesses near the truck and near the home shortly before Yeager was murdered.

On the basis of this information, Van Nuys, Cal., police took respondent into custody at approximately 6:30 p. m. on February 4. Respondent then was 16% years old and on probation to the Juvenile Court. He had been on probation since the age of 12. Approximately one year earlier he had served a term in a youth corrections camp under the supervision of the Juvenile Court. He had a record of several previous offenses, including burglary of guns and purse snatching, stretching back over several years.

Upon respondent’s arrival at the Van Nuys station house two police officers began to interrogate him. The officers and respondent were the only persons in the room during the interrogation. The conversation was tape-recorded. One of the officers initiated the interview by informing respondent that he had been brought in for questioning in relation to a murder. The officer fully advised respondent of his Miranda rights. The following exchange then occurred, as set out in the opinion of the California Supreme Court, In re Michael C., 21 Cal. 3d 471, 473-474, 579 P. 2d 7, 8 (1978) (emphasis added by that court):

“Q. ... Do you understand all of these rights as I have explained them to you?
“A. Yeah.
“Q. Okay, do you wish to give up your right to remain silent and talk to us about this murder?
“A. What murder? I don’t know about no murder.
“Q. I’ll explain to you which one it is if you want to talk to us about it.
“A. Yeah, I might talk to you.
“Q. Do you want to give up your right to have an attorney present here while we talk about it?
“A. Can I have my probation officer here?
“Q. Well I can’t get a hold of your probation officer right now. You have the right to an attorney.
“A. How I know you guys won’t pull no police officer in and tell me he’s an attorney?
“Q. Huh?
“A. [How I know you guys won’t pull no police officer in and tell me he’s an attorney?]
“Q. Your probation officer is Mr. Christiansen.
“A. Yeah.
“Q. Well I’m not going to call Mr. Christiansen tonight. There’s a good chance we can talk to him later, but I’m not going to call him right now. If you want to talk to us without an attorney present, you can. If you don’t want to, you don’t have to. But if you want to say something, you can, and if you don’t want to say something you don’t have to. That’s your right. You understand that right?
“A. Yeah.
“Q. Okay, will you talk to us without an attorney present?
“A. Yeah I want to talk to you.”

Respondent thereupon proceeded to answer questions put to him by the officers. He made statements and drew sketches that incriminated him in the Yeager murder.

Largely on the basis of respondent’s incriminating statements, probation authorities filed a petition in Juvenile Court alleging that respondent had murdered Robert Yeager, in violation of Cal. Penal Code Ann. § 187 (West Supp. 1979), and that respondent therefore should be adjudged a ward of the Juvenile Court, pursuant to Cal. Welf. & Inst. Code Ann. § 602 (West Supp. 1979). App. A-5. Respondent thereupon moved to suppress the statements and sketches he gave the police during the interrogation. He alleged that the statements had been obtained in violation of Miranda in that his request to see his probation officer at the outset of the questioning constituted an invocation of his Fifth Amendment right to remain silent, just as if he had requested the assistance of an attorney. Accordingly, respondent argued that since the interrogation did not cease until he had a chance to confer with his probation officer, the statements and sketches could not be admitted against him in the Juvenile Court proceedings. In so arguing, respondent relied by analogy on the decision in People v. Burton, 6 Cal. 3d 375, 491 P. 2d 793 (1971), where the Supreme Court of California had held that a- minor’s request, made during custodial interrogation, to see his parents constituted an invocation of the minor’s Fifth Amendment rights.

In support of his suppression motion, respondent called his probation officer, Charles P. Christiansen, as a witness. Christiansen testified that he had instructed respondent that if at any time he had “a concern with his family,” or ever had “a police contact,” App. 27, he should get in touch with his probation officer immediately. The witness stated that, on a previous occasion, when respondent had had a police contact and had failed to communicate with Christiansen, the probation officer had reprimanded him. Id., at 28. This testimony, respondent argued, indicated that when he asked for his probation officer, he was in fact asserting his right to remain silent in the face of further questioning.

In a ruling from the bench, the court denied the motion to suppress. Id., at 41-42. It held that the question whether respondent had waived his right to remain silent was one of fact to be determined on a case-by-case basis, and that the facts of this case showed a “clear waiver” by respondent of that right. Id., at 42. The court observed that the transcript of the interrogation revealed that respondent specifically had told the officers that he would talk with them, and that this waiver had come at the outset of the interrogation and not after prolonged questioning. The court noted that respondent was a “16 and a half year old minor who has been through the court system before, has been to [probation] camp, has a probation officer, [and is not] a young, naive minor with no experience with the courts.” Ibid. Accordingly, it found that on the facts of the case respondent had waived his Fifth Amendment rights, notwithstanding the request to see his probation officer.

On appeal, the Supreme Court of California took the case by transfer from the California Court of Appeal and, by a divided vote, reversed. In re Michael C., 21 Cal. 3d 471, 579 P. 2d 7 (1978). The court held that respondent’s “request to see his probation officer at the commencement of interrogation negated any possible willingness on his part to discuss his case with the police [and] thereby invoked his Fifth Amendment privilege.” Id., at 474, 579 P. 2d, at 8. The court based this conclusion on its view that, because of the juvenile court system’s emphasis on the relationship between a probation officer and the probationer, the officer was “a trusted guardian figure who exercises the authority of the state as parens patriae and whose duty it is to implement the protective and rehabilitative powers of the juvenile court.” Id., at 476, 579 P. 2d, at 10. As a consequence, the court found that a minor’s request for his probation officer was the same as a request to see his parents during interrogation, and thus under the rule of Burton constituted an invocation of the minor’s Fifth Amendment rights.

The fact that the probation officer also served as a peace officer, and, whenever a proceeding against a juvenile was contemplated, was charged with a duty to file a petition alleging that the minor had committed an offense, did not alter, in the court’s view, the fact that the officer in the eyes of the juvenile was a trusted guardian figure to whom the minor normally would turn for help when in trouble with the police. 21 Cal. 3d, at 476, 579 P. 2d, at 10. Relying on Burton, the court ruled that it would unduly restrict Miranda to limit its reach in a case involving a minor to a request by the minor for an attorney, since it would be “ ‘fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks — a parent or guardian.’ ” 21 Cal. 3d, at 475-476, 579 P. 2d, at 9, quoting People v. Burton, 6 Cal. 3d, at 382, 491 P. 2d, at 797-798. The court dismissed the concern expressed by the State that a request for a probation officer could not be distinguished from a request for one’s football coach, music teacher, or clergyman on the ground that the probation officer, unlike those other figures in the juvenile’s life, was charged by statute to represent the interests of the juvenile. 21 Cal. 3d, at 477, 579 P. 2d, at 10.

The court accordingly held that the probation officer would act to protect the minor’s Fifth Amendment rights in precisely the way an attorney would act if called for by the accused. In so holding, the court found the request for a probation officer to be a per se invocation of Fifth Amendment rights in the same way the request for an attorney was found in Miranda to be, regardless of what the interrogation otherwise might reveal. In rejecting a totality-of-the-circumstances inquiry, the court stated:

“Here, however, we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination. Thus our question turns not on whether the [respondent] had the ability, capacity or willingness to give a knowledgeable waiver, and hence whether he acted voluntarily, but whether, when he called for his probation officer, he exercised his Fifth Amendment privilege. We hold that in doing so he no less invoked the protection against self-incrimination than if he asked for the presence of an attorney.” Ibid., 579 P. 2d, at 10-11.

See also id., at 478 n. 4, 579 P. 2d, at 11 n. 4. The court went on to conclude that since the State had not met its “burden of proving that a minor who requests to see his probation officer does not intend to assert his Fifth Amendment privilege,” id., at 478, 579 P. 2d, at 11, the trial court should not have admitted the confessions obtained after respondent had requested his probation officer.

The State of California petitioned this Court for a writ of certiorari. Mr. Justice Rehnquist, . as Circuit Justice, stayed the execution of the mandate of the Supreme Court of California. 439 U. S. 1310 (1978). Because the California judgment extending the per se aspects of Miranda presents an important question about the reach of that case, we thereafter issued the writ. 439 U. S. 925 (1978).

II

We note at the outset that it is clear that the judgment of the California Supreme Court rests firmly on that court’s interpretation of federal law. This Court, however, has not heretofore extended the per se aspects of the Miranda safeguards beyond the scope of the holding in the Miranda case itself. We therefore must examine the California court’s decision to determine whether that court’s conclusion so to extend Miranda is in harmony with Miranda’s underlying principles. For it is clear that “a, State may not impose ! . . greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.” Oregon v. Hass, 420 U. S. 714, 719 (1975) (emphasis in original). See North Carolina v. Butler, 441 U. S. 369 (1979).

The rule the Court established in Miranda is clear. In order to be able to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation. 384 U. S., at 473. “Once [such] warnings have been given, the subsequent procedure is clear.” 'Ibid.

“If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” Id., at 473-474 (footnote omitted).

Any statements obtained during custodial interrogation conducted in violation of these rules may not be admitted against the accused, at least during the State’s case in chief. Id., at 479. Cf. Harris v. New York, 401 U. S. 222, 224 (1971).

Whatever the defects, if any, of this relatively rigid requirement that interrogation must cease upon the accused’s request for an attorney, Miranda’s holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis. See Michigan v. Tucker, 417 U. S. 433, 443-146 (1974).

The California court in this case, however, significantly has extended this rule by providing that a request by a juvenile for his probation officer has the same effect as a request for an attorney. Based on the court’s belief that the probation officer occupies a position as a trusted guardian figure in the minor’s life that would make it normal for the minor to turn to the officer when apprehended by the police, and based as well on the state-law requirement that the officer represent the interest of the juvenile, the California decision found that consultation with a probation officer fulfilled the role for the juvenile that consultation with an attorney does in general, acting as a “ ‘protective [device] ... to dispel the compulsion inherent in custodial surroundings.’ ” 21 Cal. 3d, at 477, 579 P. 2d, at 10, quoting Miranda v. Arizona, 384 U. S., at 458.

The rule in Miranda, however, was based on this Court’s perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system” established by the Court. Id., at 469. Moreover, the lawyer’s presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence. Id., at 470.

The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country. Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. For this reason, the Court fashioned in Miranda the rigid rule that an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.

A probation officer is not in the same posture with regard to either the accused or the system of justice as a whole. Often he is not trained in the law, and so is not in a position to advise the accused as to his legal rights. Neither is he a trained advocate, skilled in the representation of the interests of his client before both police and courts. He does not assume the power to act on behalf of his client by virtue of his status as adviser, nor are the communications of the accused to the probation officer shielded by the lawyer-client privilege.

Moreover, the probation officer is the employee of the State which seeks to prosecute the alleged offender. He is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers. He owes an obligation to the State, notwithstanding the obligation he may also owe the juvenile under his supervision. In most cases, the probation officer is duty bound to report wrongdoing by the juvenile when it comes to his attention, even if by communication from the juvenile himself. Indeed, when this case arose, the probation officer had the responsibility for filing the petition alleging wrongdoing by the juvenile and seeking to have him taken into the custody of the Juvenile Court. It was respondent’s probation officer who filed the petition against him, and it is the acting chief of probation for the State of California, a probation officer, who is petitioner in this Court today.

In these circumstances, it cannot be said that the probation officer is able to offer the type of independent advice that an accused would expect from a lawyer retained or assigned to assist him during questioning. Indeed, the probation officer’s duty to his employer in many, if not most, cases would conflict sharply with the interests of the juvenile. For where an attorney might well advise his client to remain silent in the face of interrogation by the police, and in doing so would be “exercising [his] good professional judgment ... to protect to the extent of his ability the rights of his client,” Miranda v. Arizona, 384 U. S., at 480-481, a probation officer would be bound to advise his charge to cooperate with the police. The justices who concurred in the opinion of the California Supreme Court in this case aptly noted: “Where a conflict between the minor and the law arises, the probation officer can be neither neutral nor in the minor’s corner.” 21 Cal. 3d, at 479, 579 P. 2d, at 12. It thus is doubtful that a general rule can be established that a juvenile, in every case, looks to his probation officer as a “trusted guardian figure” rather than as an officer of the court system that imposes punishment.

By the same token, a lawyer is able to protect his client’s rights by learning the extent, if any, of the client’s involvement in the crime under investigation, and advising his client accordingly. To facilitate this, the law rightly protects the communications between client and attorney from discovery. We doubt, however, that similar protection will be afforded the communications between the probation officer and the minor. Indeed, we doubt that a probation officer, consistent with his responsibilities to the public and his profession, could withhold from the police or the courts facts made known to him by the juvenile implicating the juvenile in the crime under investigation.

We thus believe it clear that the probation officer is not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights of an accused undergoing custodial interrogation that a lawyer can offer. The Court in Miranda recognized that “the attorney plays a vital role in the administration of criminal justice under our Constitution.” 384 U. S., at 481. It is this pivotal role of legal counsel that justifies the per se rule established in Miranda, and that distinguishes the request for counsel from the request for a probation officer, a clergyman, or a close friend. A probation officer simply is not necessary, in the way an attorney is, for the protection of the legal rights of the accused, juvenile or adult. He is significantly handicapped by the position he occupies in the juvenile system from serving as an effective protector of the rights of a juvenile suspected of a crime.

The California Supreme Court, however, found that the close relationship between juveniles and their probation officers compelled the conclusion that a probation officer, for purposes of Miranda, was sufficiently like a lawyer to justify extension of the per se rule. 21 Cal. 3d, at 476, 579 P. 2d, at 10. The fact that a relationship of trust and cooperation between a probation officer and a juvenile might exist, however, does not indicate that the probation officer is capable of rendering effective legal advice sufficient to protect the juvenile’s rights during interrogation by the police, or of providing the other services rendered by a lawyer. To find otherwise would be “an extension of the Miranda, requirements [that] would cut this Court’s holding in that case completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U. S. 341, 345 (1976). Such an extension would impose the burdens associated with the rule of Miranda on the juvenile justice system and the police without serving the interests that rule was designed simultaneously to protect. If it were otherwise, a juvenile’s request for almost anyone he considered trustworthy enough to give him reliable advice would trigger the rigid rule of Miranda.

Similarly, the fact that the State has created a statutory duty on the part of the probation officer to protect the interests of the juvenile does not render the probation officer any more capable of rendering legal assistance to the juvenile or of protecting his legal rights, especially in light of the fact that the State has-also legislated a duty on the part of the officer to report wrongdoing by the juvenile and serve the ends of the juvenile court system. The State cannot transmute the relationship between probation officer and juvenile offender into the type of relationship between attorney and client that was essential to the holding of Miranda simply by legislating an amorphous “duty to advise and care for the juvenile defendant.” 21 Cal. 3d, at 477, 579 P. 2d, at 10. Though such a statutory duty might serve to distinguish to some degree the probation officer from the coach and the clergyman, it does not justify the extension of Miranda to requests to see probation officers. If it did, the State could expand the class of persons covered by the Miranda per se rule simply by creating a duty to care for the juvenile on the part of other persons, regardless of whether the logic of Miranda would justify that extension.

Nor do we believe that a request by a juvenile to speak with his probation officer constitutes a per se request to remain silent. As indicated, since a probation officer does not fulfill the important role in protecting the rights of the accused juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney. And there is nothing inherent in the request for a probation officer that requires us to find that a juvenile’s request to see one necessarily constitutes an expression of the juvenile’s right to remain silent. As discussed below, courts may take into account such a request in evaluating whether a juvenile in fact had waived his Fifth Amendment rights before confessing. But in other circumstances such a request might well be consistent with a desire to speak with the police. In the absence of further evidence that the minor intended in the circumstances to invoke his Fifth Amendment rights by such a request, we decline to attach such overwhelming significance to this request.

We hold, therefore, that it was error to find that the request by respondent to speak with his probation officer per se constituted an invocation of respondent’s Fifth Amendment right to be free from compelled self-incrimination. It therefore was also error to hold that because the police did not then cease interrogating respondent the statements he made during interrogation should have been suppressed.

Ill

Miranda further recognized that after the required warnings are given the accused, “[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” 384 U. S., at 475. We noted in North Carolina v. Butler, 441 U. S., at 373, that the question whether the accused waived his rights “is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. Miranda v. Arizona, 384 U. S., at 475-477.

This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. See North Carolina v. Butler, supra.

Courts repeatedly must deal with these issues of waiver with regard to a broad variety of constitutional rights. There is no reason to assume that such courts — especially juvenile courts, with their special expertise in this area — will be unable to apply the totality-of-the-circumstances analysis so as to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved. Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination. At the same time, that approach refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive prior record who knowingly and intelligently waives his Fifth Amendment rights and voluntarily consents to interrogation.

In this case, we conclude that the California Supreme Court should have determined the issue of waiver on the basis of all the circumstances surrounding the interrogation of respondent. The Juvenile Court found that under this approach, respondent in fact had waived, his Fifth Amendment rights and consented to interrogation by the police after his request to see his probation officer was denied. Given its view of the case, of course, the California Supreme Court did not consider this issue, though it did hold that the State had failed to prove that, notwithstanding respondent’s request to see his probation officer, respondent had not intended to invoke his Fifth Amendment rights.

We feel that the conclusion of the Juvenile Court was correct. The transcript of the interrogation reveals that the police officers conducting the interrogation took care to ensure that respondent understood his rights. They fully explained to respondent that he was being questioned in connection with a murder. They then informed him of all the rights delineated in Miranda, and ascertained that respondent understood those rights. There is no indication in the record that respondent failed to understand what the officers told him. Moreover, after his request to see his probation officer had been denied, and after the police officer once more had explained his rights to him, respondent clearly expressed his willingness to waive his rights and continue the interrogation.

Further, no special factors indicate that respondent was unable to understand the nature of his actions. He was a 16%-year-old juvenile with considerable experience with the police. He had a record of several arrests. He had served time in a youth camp, and he had been on probation for several years. He was under the_ full-time supervision of probation authorities. There is no indication that he was of insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be. He was not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit.

On these facts, we think it clear that respondent voluntarily and knowingly waived his Fifth Amendment rights. Respondent argues, however, that any statements he made during interrogation were coerced. Specifically, respondent alleges that the police made threats and promises during the interrogation to pressure him into cooperating in the hope of obtaining leniency for his cooperative attitude. He notes also that he repeatedly told the officers during his interrogation that he wished to stop answering their questions, but that the officers ignored his pleas. He argues further that the record reveals that he was afraid that the police would coerce him, and that this fear caused him to cooperate. He points out that at one point the transcript revealed that he wept during the interrogation.

Review of the entire transcript reveals that respondent’s claims of coercion are without merit. As noted, the police took care to inform respondent of his rights and to ensure that he understood them. The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda. See 384 U. S., at 445-455. The police did indeed indicate that a cooperative attitude would be to respondent’s benefit, but their remarks in this regard were far from threatening or coercive. And respondent’s allegation that he repeatedly asked that the interrogation cease goes too far: at some points he did state that he did not know the answer to a question put to him or that he could not, or would not, answer the question, but these statements were not assertions of his right to remain silent.

IY

We hold, in short, that the California Supreme Court erred in finding that a juvenile’s request for his probation officer was a per se invocation of that juvenile’s Fifth Amendment rights under Miranda. We conclude, rather, that whether the statements obtained during subsequent interrogation of a juvenile who has asked to see his probation officer, but who has not asked to consult an attorney or expressly asserted his right to remain silent, are admissible on the basis of waiver remains a question to be resolved on the totality of the circumstances surrounding the interrogation. On the basis of the record in this case, we hold that the Juvenile Court’s findings that respondent voluntarily and knowingly waived his rights and consented to continued interrogation, and that the statements obtained from him were voluntary, were proper, and that the admission of those statements in the proceeding against respondent in Juvenile Court was correct.

The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Marshall,

with whom Mr. Justice Brennan and Mr. Justice Stevens join,

dissenting.

In Miranda v. Arizona, 384 U. S. 436 (1966), this Court sought to ensure that the inherently coercive pressures of custodial interrogation would not vitiate a suspect’s privilege against self-incrimination. Noting that these pressures “can operate very quickly to overbear the will of one merely made aware of his privilege,” id., at 469, the Court held:

“If [a suspect in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Id., at 473-474 (footnote omitted).

See also id., at 444-445.

As this Court has consistently recognized, the coerciveness of the custodial setting is of heightened concern where, as here, a juvenile is under investigation. In Haley v. Ohio, 332 U. S. 596 (1948), the plurality reasoned that because a 15%-year-old minor was particularly susceptible to overbearing interrogation tactics, the voluntariness of his confession could not “be judged by the more exacting standards of maturity.” Id., at 599. The Court reiterated this point in Gallegos v. Colorado, 370 U. S. 49, 54 (1962), observing that a 14-year-old suspect could not “be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.” The juvenile defendant, in the Court’s view, required

“the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not.” Ibid.

And, in In re Gault, 387 U. S. 1, 55 (1967), the Court admonished that “the greatest care must be taken to assure that [a minor’s] admission was voluntary.”

It is therefore critical in the present context that we construe Miranda’s prophylactic requirements broadly to accomplish their intended purpose — “dispel [ling] the compulsion inherent in custodial surroundings.” 384 U. S., at 458. To effectuate this purpose, the Court must ensure that the “protective device” of legal counsel, id., at 465-466, 469, be readily available, and that any intimation of a desire to preclude questioning be scrupulously honored. Thus, I believe Miranda requires that interrogation cease whenever a juvenile requests an adult who is obligated to represent his interests. Such a request, in my judgment, constitutes both an attempt to obtain advice and a general invocation of the right to silence. For, as the California Supreme Court recognized, “ ‘[i]t is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance,’ ” 21 Cal. 3d 471, 475—476, 579 P. 2d 7, 9 (1978), quoting People v. Burton, 6 Cal. 3d 375, 382, 491 P. 2d 793, 797 (1971), or that he will trust the police to obtain a lawyer for him. A juvenile in these circumstances will likely turn to his parents, or another adult responsible for his welfare, as the only means of securing legal counsel. Moreover, a request for such adult assistance is surely inconsistent with a present desire to speak freely. Requiring a strict verbal formula to invoke the protections of Miranda would “protect the knowledgeable accused from stationhouse coercion while abandoning the young person who knows no more than to ask for the . . . person he trusts.” Chaney v. Wainwright, 561 F. 2d 1129, 1134 (CA5 1977) (Goldberg, J., dissenting).

On my reading of Miranda, a California juvenile’s request for his probation officer should be treated as a per se assertion of Fifth Amendment rights. The California Supreme Court determined that probation officers have a statutory duty to represent minors’ interests and, indeed, are “trusted guardian figure [s] ” to whom a juvenile would likely turn for assistance. 21 Cal. 3d, at 476, 579 P. 2d, at 10. In addition, the court found, probation officers are particularly well suited to assist a juvenile “on such matters as to whether or not he should obtain an attorney” and “how to conduct himself with police.” Id., at 476, 477, 579 P. 2d, at 10. Hence, a juvenile’s request for a probation officer may frequently be an attempt to secure protection from the coercive aspects of custodial questioning.

This Court concludes, however, that because a probation officer has law enforcement duties, juveniles generally would not call upon him to represent their interests, and if they did, would not be well served. Ante, at 721-722. But that conclusion ignores the California Supreme Court’s express determination that the officer’s responsibility to initiate juvenile proceedings did not negate his function as personal adviser to his wards. I decline to second-guess that court’s assessment of state law. See Murdock v. Memphis, 20 Wall. 590, 626 (1875); General Trading Co. v. State Tax Comm’n, 322 U. S. 335, 337 (1944); Scripto, Inc. v. Carson, 362 U. S. 207, 210 (1960). Further, although the majority here speculates that probation officers have a duty to advise cooperation with the police, ante, at 721 — a proposition suggested only in the concurring opinion of two justices below, 21 Cal. 3d, at 479, 579 P. 2d, at 11-12 (Mosk, J., joined by Bird, C. J., concurring) — respondent’s probation officer instructed all his charges “not to go and admit openly to an offense, [but rather] to get some type of advice from . . . parents or a lawyer.” App. 30. Absent an explicit statutory provision or judicial holding, the officer’s assessment of the obligations imposed by state law is entitled to deference by this Court.

Thus, given the role of probation officers under California law, a juvenile’s request to see his officer may reflect a desire for precisely the kind of assistance Miranda guarantees an accused before he waives his Fifth Amendment rights. At the very least, such a request signals a- desire to remain silent until contact with the officer is made. Because the Court’s contrary determination withdraws the safeguards of Miranda from those most in need of protection, I respectfully dissent.

Me. Justice Powell,

dissenting.

Although I agree with the Court that the Supreme Court of California misconstrued Miranda v. Arizona, 384 U. S. 436 (1966), I would not reverse the California court’s judgment. This Court repeatedly has recognized that “the greatest care” must be taken to assure that an alleged confession of a juvenile was voluntary. See, e. g., In re Gault, 387 U. S. 1, 55 (1967); Gallegos v. Colorado, 370 U. S. 49, 64 (1962); Haley v. Ohio, 332 U. S. 596, 599-600 (1948) (plurality opinion). Respondent was a young person, 16 years old at the time of his arrest and the subsequent prolonged interrogation at the station house. Although respondent had had prior brushes with the law, and was under supervision by a probation officer, the taped transcript of his interrogation — as well as his testimony at the suppression hearing — demonstrates that he was immature, emotional, and uneducated, and therefore was likely to be vulnerable to the skillful, two-on-one, repetitive style of interrogation to which he was subjected. App. 54-82.

When given Miranda warnings and asked whether he desired an attorney, respondent requested permission to “have my probation officer here,” a request that was refused. Id., at 55. That officer testified later that he had communicated frequently with respondent, that respondent had serious and “extensive” family problems, and that the officer had instructed respondent to call him immediately “at any time he has a police contact, even if they stop him and talk to him on the street.”- Id., at 26-31. The reasons given by the probation officer for having so instructed his charge were substantially the same reasons that prompt this Court to examine with special care the circumstances under which a minor’s alleged confession was obtained. After stating that respondent had been “going through problems,” the officer observed that “many times the kids don’t understand what is going on, and what they are supposed to do relative to police ....” Id., at 29. This view of the limited understanding of the average 16-year-old was borne out by respondent’s question when, during interrogation, he was advised of his right to an attorney: “How I know you guys won’t pull no police officer in and tell me he’s an attorney?” Id., at 55. It was during this part of the interrogation that the police had denied respondent’s request to “have my probation officer here.” Ibid.

The police then proceeded, despite respondent’s repeated denial of any connection to the murder under investigation, see id., at 56-60, persistently to press interrogation until they extracted a confession. In In re Gault, in addressing police interrogation of detained juveniles, the Court stated:

“If counsel was not present for some permissible reason when, an admission was obtained [from a child], the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent'fantasy, fright or despair.” 387 U. S., at 55.

It is clear that the interrogating police did not exercise “the greatest care” to assure that respondent’s “admission was voluntary.” In the absence of counsel, and having refused to call the probation officer, they nevertheless engaged in protracted interrogation.

Although I view the case as close, I am not satisfied that this particular 16-year-old boy, in this particular situation, was subjected to a fair interrogation free from inherently coercive circumstances. For these reasons, I would affirm the judgment of the Supreme Court of California.

       The petition also alleged that respondent had participated in an attempted armed robbery earlier on the same evening Yeager was murdered. The Juvenile Court, however, held that the evidence was insufficient to support this charge and it was dismissed. App. 6. No issue relating to this second charge is before the Court.

       The California Court of Appeal, in an opinion reported and then vacated, affirmed. In re Michael C., 135 Cal. Rptr. 762 (1977). That court noted that since the Juvenile Court’s findings of fact resolved against respondent his contention that the confession had been coerced from him by threats and promises, it would have to “conclude that there was a knowing and intelligent waiver of the minor’s Miranda rights unless it can be said that the request to speak to a probation officer was in and of itself sufficient to invoke” respondent’s Fifth Amendment privilege. Id., at 765-766 (footnote omitted). It refused to extend the rule of People v. Burton, 6 Cal. 3d 375, 491 P. 2d 793 (1971), to include a request for a probation officer, finding it difficult to distinguish such a request from a request to see “one’s football coach, music teacher or clergyman.” 135 Cal. Rptr., at 766. Even if the Burton rule were applicable, the court held, there was sufficient evidence of an affirmative waiver of his rights by respondent to distinguish Burton, where the California Supreme Court had noted that there was “nothing in the way of affirmative proof that defendant did not intend to assert his privilege.” 6 Cal. 3d, at 383, 491 P. 2d, at 798.

       Two justices concurred in the court’s opinion and judgment. 21 Cal. 3d, at 478, 579 P. 2d, at 11. They expressed concern that a probation officer’s public responsibilities would make it difficult for him to offer legal advice to a minor implicated in a crime, and that a minor advised to cooperate with the police, perhaps even to confess, justifiably could complain later “that he had been subjected to a variation of the Mutt-and-Jeff technique criticized in Miranda: initial interrogating by overbearing officers, then comforting by a presumably friendly and gentle peace officer in the guise of a probation officer.” Id., at 479, 579 P. 2d, at 12.
      Two justices dissented. Id., at 480, 579 P. 2d, at 12. They would have affirmed respondent’s conviction on the basis of the finding of the Juvenile Court that, in light of all the circumstances surrounding the interrogation of respondent, there was sufficient affirmative proof that respondent had waived his privilege.
      The dissenters pointed out that the opinion of the court was confusing in holding, on the one hand, that the request for a probation officer was
        per se an invocation of the minor’s Fifth Amendment rights, and, on the other, that reversal was required because the State had not carried its burden of proving that respondent, by requesting his probation officer, did not intend thereby to assert his Fifth Amendment privilege. Ibid., 679 P. 2d, at 12-13.
      There may well be ambiguity in this regard. See id., at 477-478, 579 P. 2d, at 11. On the basis of that ambiguity, respondent argues that the California court did not establish a per se rule, but held only that on the facts here respondent’s request to see his probation officer constituted an invocation of his Fifth Amendment rights. The decision in People v. Randall, 1 Cal. 3d 948, 464 P. 2d 114 (1970), upon which the California court relied in both Burton and the present case, however, indicates that the court did indeed establish a per se rule in this case. In Randall, the court stated that even though a suspect might have invoked his Fifth Amendment rights by asking for counsel or by stating he wished to remain silent, it might be possible that subsequent voluntary statements of the accused, not prompted by custodial interrogation, would be admissible if the State could show that they were the product of the voluntary decision of the accused to waive the rights he had asserted. People v. Randall, 1 Cal. 3d, at 956, and n. 7, 464 P. 2d, at 119, and n. 7.

        Randall thus indicates that the per se language employed by the California Supreme Court in this case is compatible with the finding that the State could have negated the per se effect of the request for a probation officer by showing that, notwithstanding his per se invocation of his rights, respondent later voluntarily decided to waive those rights and volunteer statements. In light of Randall, and in light of the strong per se language used by the California Supreme Court in its opinion in this case, see, e. g., 21 Cal. 3d, at 477, 579 P. 2d, at 10-11, we think that any ambiguity in that opinion must be resolved in favor of a conclusion that the court did in fact establish a per se rule.

       Indeed, this Court has not yet held that Miranda applies with full force to exclude evidence obtained in violation of its proscriptions from consideration in juvenile proceedings, which for certain purposes have been distinguished from formal criminal prosecutions. See McKeiver v. Pennsylvania, 403 U. S. 528, 540-541 (1971) (plurality opinion). We do not decide that issue today. In view of our disposition of this case, we assume without deciding that the Miranda principles were fully applicable to the present proceedings.

       When this case arose, a California statute provided that a proceeding in juvenile court to declare a minor a ward of the court was to be commenced by the filing of a petition by a probation officer. Cal. Welf. & Inst. Code Ann. § 650 (West 1972). This provision since has been amended to provide that most such petitions are to be filed by the prosecuting attorney. 1976 Cal. Stats., ch. 1071, § 20. Respondent argues that, whatever the status of the probation officer as a peace officer at the time this case arose, the amendment of § 650 indicates that in the future a probation officer is not to be viewed as a legal adversary of the accused juvenile. Consequently, respondent believes that any holding of this Court with regard to respondent’s 1976 request for a probation officer will be mere dictum with regard to a juvenile’s similar request today. Brief for Respondent 9-10, and n. 4.
      We disagree. The fact that a California probation officer in 1976 was responsible for initiating a complaint is only one factor in our analysis. The fact remains that a probation officer does not fulfill the role in our system of criminal justice that an attorney does, regardless of whether he acts merely as a counselor or has significant law enforcement duties. And in California, as in many States, the other duties of a probation officer are incompatible with the view that he may act as a counselor to a juvenile accused of crime. The very California statute that imposes upon the probation officer the duty to represent the interests of the juvenile also provides: “It shall be the duty of the probation officer to prepare for every hearing [of criminal charges against a juvenile] a social study of the minor, containing such matters as may be relevant to a proper disposition of the case.” Cal. Welf. & Inst. Code Ann. §280 (West Supp. 1979).
      Similarly, a probation officer is required, upon the order of the juvenile court or the Youth Authority, to investigate the circumstances surrounding the charge against the minor and to file written reports and recommendations. §§ 281, 284. And a probation officer in California continues to have the powers and authority of a peace officer in connection with any violation of a criminal statute that is discovered by the probation officer in the course of his probation activities. §283; Cal. Penal Code Ann. § 830.5 (West 1970). The duties of a peace officer, like the investigative’ and reporting duties of probation officers, are incompatible with the role of legal adviser to a juvenile accused of crime.

       The facte of the instant case are illustrative. When the police offered to obtain an attorney for respondent, he replied: “How I know you guys won’t pull no police officer in and tell me he’s an attorney?” Ante, at 710. Significantly, the police made no attempt to allay that concern. See 21 Cal. 3d, at 476 n. 3, 679 P. 2d, at 10 n. 3.

       The Court intimates that construing a request for a probation officer as an invocation of the Fifth Amendment privilege would undermine the specificity of Miranda’s prophylactic rules. Ante, at 718. Yet the Court concedes that the statutory duty to “advise and care for the juvenile defendant,” 21 Cal. 3d, at 477, 579 P. 2d, at 10, distinguishes probation officers from other adults, such as coaches and clergymen. Ante, at 723. Since law enforcement officials should be on notice of such legal relationships, they would presumably have no difficulty determining whether a suspect has asserted his Fifth Amendment rights.
      Although I agree with my Brother Powell that, on the facts here, respondent was not “subjected to a fair interrogation free from inherently coercive circumstances,” post, at 734, I do not believe a case-by-case approach provides police sufficient guidance, or affords juveniles adequate protection.

       In filing the petition and performing the other functions enumerated ante, at 720-721, n. 5, the probation officer must act in the best interests of the minor. See In re Steven C., 9 Cal. App. 3d 255, 264—265, 88 Cal. Rptr. 97, 101-102 (1970).

       One thing is certain. The California Supreme Court is more familiar with the duties and performance of its probation officers than we are.
      Of course, “[i]t is peculiarly within the competence of the highest court of a State to determine that in its jurisdiction the police should be subject to more stringent rules than are required as a federal constitutional minimum.” Oregon v. Hass, 420 U. S. 714, 728 (1975) (Marshall, J., dissenting). See also People v. Disbrow, 16 Cal. 3d 101, 545 P. 2d 272 (1976) (refusing to follow Harris v. New York, 401 U. S. 222 (1971)); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

       The California Supreme Court, purporting to apply Miranda v. Arizona, stated:
      “Here ... we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination.” 21 Cal. 3d 471, 477, 579 P. 2d 7, 10 (1978). I agree with the Court’s opinion today that Miranda cannot be read as support for any such per se rule.

       The Juvenile Court Judge observed that he had “heard the tapes” of the interrogation, and was “aware of the fact that Michael [respondent] was crying at the time he talked to the police officers.” App. 53.

       The Supreme Court of California stated that a “probation officer is an official appointed pursuant to legislative enactment ‘to represent the interests’ of the juvenile [and] . . . has borne the duty to advise and care for the juvenile defendant.” 21 Cal. 3d, at 477, 579 P. 2d, at 10.

       Minors who become embroiled with the law range from the very young up to those on the brink of majority. Some of the older minors become fully “street-wise,” hardened criminals, deserving no greater consideration than that properly accorded all persons suspected of crime. Other minors are more of a child than an adult. As the Court indicated in In re Gault, 387 U. S. 1 (1967), the facts relevant to the care to be exercised in a particular case vary widely. They include the minor’s age, actual maturity, family environment, education, emotional and mental stability, and, of course, any prior record he might have.


author: Mr. Justice Blackmun Mr. Justice Stewart, Me. Justice Marshall,

text:
    SMITH v. MARYLAND
    No. 78-5374.
    Argued March 28, 1979 —
    Decided June 20, 1979

      BlackmuN, J., delivered the opinion of the Court, in which Burger, C. J., and White, RehNquist, and SteveNS, JJ., joined. Stewart, J., post, p. 746, and Marshall, J., post, p. 748, filed dissenting opinions, in which BrenNAN, J., joined. Powell, J., took no part in the consideration or decision of the case.

      Howard L. Cardin argued the cause for petitioner. With him on the brief was James J. Gitomer.

      Stephen H. Sachs, Attorney General of Maryland, argued the cause for respondent. With him on the brief were George A. Nilson, Deputy Attorney General, and Deborah K. Handel and Stephen B. Caplis, Assistant Attorneys General.
   Mr. Justice Blackmun

delivered the opinion of the Court.

This case presents the question whether the installation and use of a pen register constitutes a “search” within the meaning of the Fourth Amendment, made applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U. S. 643 (1961).

I

On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. Tr. 66-68. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. Id., at 70. On March 16, police spotted a man who met McDonough’s description driving a 1975 Monte Carlo in her neighborhood. Id., at 71-72. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith. Id., at 72.

The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner’s home. Id., at 73, 75. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner’s home to McDonough’s phone. Id., at 74. On the basis of this and other evidence, the police obtained a warrant to search petitioner’s residence. Id., at 75. The search revealed that a page in petitioner’s phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Ibid. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. Id., at 70-71.

Petitioner was indicted in the Criminal Court of Baltimore for robbery. By pretrial motion, he sought to suppress “all fruits derived from the pen register” on the ground that the police had failed to secure a warrant prior to its installation. Record 14; Tr. 54 — 56. The trial court denied the suppression motion, holding that the warrantless installation of the pen register did not violate the Fourth Amendment. Id., at 63. Petitioner then waived a jury, and the case was submitted to the court on an agreed statement of facts. Id., at 65-66. The pen register tape (evidencing the fact that a phone call had been made from petitioner’s phone to McDonough’s phone) and the phone book seized in the search of petitioner’s residence were admitted into evidence against him. Id., at 74-76. Petitioner was convicted, id., at 78, and was sentenced to six years. He appealed to the Maryland Court of Special Appeals, but the Court of Appeals of Maryland issued a writ of certiorari to the intermediate court in advance of its decision in order to consider whether the pen register evidence had been properly admitted at petitioner’s trial. 283 Md. 156, 160, 389 A. 2d 858, 860 (1978).

The Court of Appeals affirmed the judgment of conviction, holding that “there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system and hence no search within the fourth amendment is implicated by the use of a pen register installed at the central offices of the telephone company.” Id., at 173, 389 A. 2d, at 867. Because there was no “search,” the court concluded, no warrant was needed. Three judges dissented, expressing the view that individuals do have a legitimate expectation of privacy regarding the phone numbers they dial from their homes; that the installation of a pen register thus constitutes a “search”; and that, in the absence of exigent circumstances, the failure of police to secure a warrant mandated that the pen register evidence here be excluded. Id., at 174, 178, 389 A. 2d, at 868, 870. Certiorari was granted in order to resolve indications of conflict in the decided cases as to the restrictions imposed by the Fourth Amendment on the use of pen registers. 439 U. S. 1001 (1978).

II

A

The Fourth Amendment guarantees “'[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” In determining whether a particular form of government-initiated electronic surveillance is a “search” within the meaning of the Fourth Amendment, our lodestar is Katz v. United States, 389 U. S. 347 (1967). In Katz, Government agents had intercepted the contents of a telephone conversation by attaching an electronic listening device to the outside of a public phone booth. The Court rejected the argument that a “search” can occur only when there has been a “physical intrusion” into a “constitutionally protected area,” noting that the Fourth Amendment “protects people, not places.” Id., at 351-353. Because the Government’s monitoring of Katz’ conversation “violated the privacy upon which he justifiably relied while using the telephone booth,” the Court held that it “constituted a 'search and seizure’ within the meaning of the Fourth Amendment.” Id., at 353.

Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action. E. g., Rakas v. Illinois, 439 U. S. 128, 143, and n. 12 (1978); id., at 150, 151 (concurring opinion); id., at 164 (dissenting opinion) ; United States v. Chadwick, 433 U. S. 1, 7 (1977); United States v. Miller, 425 U. S. 435, 442 (1976); United States v. Dionisio, 410 U. S. 1, 14 (1973); Couch v. United States, 409 U. S. 322, 335-336 (1973); United States v. White, 401 U. S. 745, 752 (1971) (plurality opinion); Mancusi v. DeForte, 392 U. S. 364, 368 (1968); Terry v. Ohio, 392 U. S. 1, 9 (1968). This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has “exhibited an actual (subjective) expectation of privacy,” 389 U. S., at 361 — whether, in the words of the Katz majority, the individual has shown that “he seeks to preserve [something] as private.” Id., at 351. The second question is whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as 'reasonable,’ ” id., at 361— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is “justifiable” under the circumstances. Id., at 353. See Rakas v. Illinois, 439 U. S., at 143-144, n. 12; id., at 151 (concurring opinion); United States v. White, 401 U. S., at 752 (plurality opinion).

B

In applying the Katz analysis to this case, it is important to begin by specifying precisely the nature of the state activity that is challenged. The activity here took the form of installing and using a pen register. Since the pen register was installed on telephone company property at the telephone company’s central offices, petitioner obviously cannot claim that his “property”’ was invaded or that police intruded into a “constitutionally protected area.” Petitioner’s claim, rather, is that, notwithstanding the absence of a trespass, the State, as did the Government in Katz, infringed a “legitimate expectation of privacy” that petitioner held. Yet a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications. This Court recently noted:

“Indeed, a law enforcement official could not even determine from the use of a pen register whether a communication existed. These devices do not hear sound. They disclose only the telephone numbers that have been dialed — a means of establishing communication. Neither the purport of any communication between the caller and the recipient of the call, their identities, nor whether the call was even completed is disclosed by pen registers.” United States v. New York Tel. Co., 434 U. S. 159, 167 (1977).

Given a pen register’s limited capabilities, therefore, petitioner’s argument that its installation and use constituted a “search” necessarily rests upon a claim that he had a “legitimate expectation of privacy” regarding the numbers he dialed on his phone.

This claim must be rejected. First, we doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must “convey” phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies “for the purposes of checking billing operations, detecting fraud, and preventing violations of law.” United States v. New York Tel. Co., 434 U. S., at 174-175. Electronic equipment is used not only to keep billing records of toll calls, but also “to keep a record of all calls dialed from a telephone which is subject to a special rate structure.” Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d 254, 266 (CA9 1977) (concurring opinion). Pen registers are regularly employed “to determine whether a home phone is being used to conduct a business, to check for a defective dial, or to check for overbilling.” Note, The Legal Constraints upon the Use of the Pen Register as a Law Enforcement Tool, 60 Cornell L. Rev. 1028, 1029 (1975) (footnotes omitted). Although most people may be oblivious to a pen register’s esoteric functions, they presumably have some awareness of one common use: to aid in the identification of persons making annoying or obscene calls. See, e. g., Von Lusch v. C & P Telephone Co., 457 F. Supp. 814, 816 (Md. 1978); Note, 60 Cornell L. Rev., at 1029-1030, n. 11; Claerhout, The Pen Register, 20 Drake L. Rev. 108, 110-111 (1970). Most phone books tell subscribers, on a page entitled “Consumer Information/’ that the company “can frequently help in identifying to the authorities the origin of unwelcome and troublesome calls.” E. g., Baltimore Telephone Directory 21 (1978); District of Columbia Telephone Directory 13 (1978). Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.

Petitioner argues, however, that, whatever the expectations of telephone users in general, he demonstrated an expectation of privacy by his own conduct here, since he “us'[ed] the telephone in his house to the exclusion of all others.” Brief for Petitioner 6 (emphasis added). But the site of the call is immaterial for purposes of analysis in this case. Although petitioner’s conduct may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed. Regardless of his location, petitioner had to convey that number to the telephone company in precisely the same way if he wished to complete his call. The fact that he dialed the number on his home phone rather than on some other phone could make no conceivable difference, nor could any subscriber rationally think that it would.

Second, even if petitioner did harbor some subjective expectation that the phone numbers he dialed would remain private, this expectation is not “one that society is prepared to recognize as 'reasonable.’ ” Katz v. United States, 389 U. S., at 361. This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties. E. g., United States v. Miller, 425 U. S., at 442-444; Couch v. United States, 409 U. S., at 335-336; United States v. White, 401 U. S., at 752 (plurality opinion); Hoffa v. United States, 385 U. S. 293, 302 (1966); Lopez v. United States, 373 U. S. 427 (1963). In Miller, for example, the Court held that a bank depositor has no “legitimate 'expectation of privacy’ ” in financial information “voluntarily conveyed to . . . banks and exposed to their employees in the ordinary course of business.” 425 U. S., at 442. The Court explained:

“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. . . . This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id., at 443.

Because the depositor “assumed the risk” of disclosure, the Court held that it would be unreasonable for him to expect his financial records to remain private.

This analysis dictates that petitioner can claim no legitimate expectation of privacy here. When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and “exposed” that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. Petitioner concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. Tr. of Oral Arg. 3-5, 11-12, 32. We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.

Petitioner argues, however, that automatic switching equipment differs from a live operator in one pertinent respect. An operator, in theory at least, is capable of remembering every number that is conveyed to him by callers. Electronic equipment, by contrast, can “remember” only those numbers it is programmed to record, and telephone companies, in view of their present billing practices, usually do not record local calls. Since petitioner, in calling McDonough, was making a local call, his expectation of privacy as to her number, on this theory, would be “legitimate.”

This argument does not withstand scrutiny. The fortuity of whether or not the phone company in fact elects to make a quasi-permanent record of a particular number dialed does not, in our view, make any constitutional difference. Regardless of the phone company’s election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. In these circumstances, petitioner assumed the risk that the information would be divulged to police. Under petitioner’s theory, Fourth Amendment protection would exist, or not, depending on how the telephone company chose to define local-dialing zones, and depending on how it chose to bill its customers for local calls. Calls placed across town, or dialed directly, would be protected; calls placed across the river, or dialed with operator assistance, might not be. We are not inclined to make a crazy quilt of the Fourth Amendment, especially in circumstances where (as here) the pattern of protection would be dictated by billing practices of a private corporation.

We therefore conclude that petitioner in all probability entertained no actual expectation of privacy in the phone numbers he dialed, and that, even if he did, his expectation was not “legitimate.” The installation and use of a pen register, consequently, was not a “search,” and no warrant was required. The judgment of the Maryland Court of Appeals is affirmed.

It is so ordered.

Mr. Justice Powell took no part in the consideration or decision of this case.

Mr. Justice Stewart,

with whom Mr. Justice Brennan joins,

dissenting.

I am not persuaded that the numbers dialed from a private telephone fall outside the constitutional protection of the Fourth and Fourteenth Amendments.

In Katz v. United States, 389 U. S. 347, 352, the Court acknowledged the “vital role that the public telephone has come to play in private communication [s].” The role played by a private telephone is even more vital, and since Katz it has been abundantly clear that telephone conversations carried on by people in their homes or offices are fully protected by the Fourth and Fourteenth Amendments. As the Court said in United States v. United States District Court, 407 U. S. 297, 313, “the broad and unsuspected governmental incursions into conversational privacy which electronic surveillance entails necessitate the application of Fourth Amendment safeguards.” (Footnote omitted.)

Nevertheless, the Court today says that those safeguards do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes. But that observation no more than describes the basic nature of telephone calls. A telephone call simply cannot be made without the use of telephone company property and without payment to the company for the service. The telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely held that the user of even a public telephone is entitled “to assume that the words he utters into the mouthpiece will not be broadcast to the world.” Katz v. United States, supra, at 352.

The central question in this case is whether a person who makes telephone calls from his home is entitled to make a similar assumption about the numbers he dials. What the telephone company does or might do with those numbers is no more relevant to this inquiry than it would be in a case involving the conversation itself. It is simply not enough to say, after Katz, that there is no legitimate expectation of privacy in the numbers dialed because the caller assumes the risk that the telephone company will disclose them to the police.

I think that the numbers dialed from a private telephone— like the conversations that occur during a call — are within the constitutional protection recognized in Katz. It seems clear to me that information obtained by pen register surveillance of a private telephone is information in which the telephone subscriber has a legitimate expectation of privacy. The information captured by such surveillance emanates from private conduct within a person’s home or office — locations that without question are entitled to Fourth and Fourteenth Amendment protection. Further, that information is an integral part of the telephonic communication that under Katz is entitled to constitutional protection, whether or not it is captured by a trespass into such an area.

The numbers dialed from a private telephone — although certainly more prosaic than the conversation itself — are not without “content.” Most private telephone subscribers may have their own numbers listed in a publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the persons and the places called, and thus reveal the most intimate details of a person’s life.

I respectfully dissent.

Me. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

The Court concludes that because individuals have no actual or legitimate expectation of privacy in information they voluntarily relinquish to telephone companies, the use of pen registers by government agents is immune from Fourth Amendment scrutiny. Since I remain convinced that constitutional protections are not abrogated whenever a person apprises another of facts valuable in criminal investigations, see, e. g., United States v. White, 401 U. S. 745, 786-790 (1971) (Harlan, J., dissenting); id., at 795-796 (Marshall, J., dissenting); California Bankers Assn. v. Shultz, 416 U. S. 21, 95-96 (1974) (Marshall, J., dissenting); United States v. Miller, 425 U. S. 435, 455-456 (1976) (Marshall, J., dissenting), I respectfully dissent.

Applying the standards set forth in Katz v. United States, 389 U. S. 347, 361 (1967) (Harlan, J., concurring), the Court first determines that telephone subscribers have no subjective expectations of privacy concerning the numbers they dial. To reach this conclusion, the Court posits that individuals somehow infer from the long-distance listings on their phone bills, and from the cryptic assurances of “help” in tracing obscene calls included in “most” phone books, that pen registers are regularly used for recording local calls. See ante, at 742-743. But even assuming, as I do not, that individuals “typically know” that a phone company monitors calls for internal reasons, ante, at 743, it does not follow that they expect this information to be made available to the public in general or the government in particular. Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes. See California Bankers Assn. v. Shultz, supra, at 95-96 (Marshall, J., dissenting).

The crux of the Court’s holding, however, is that whatever expectation of privacy petitioner may in fact have entertained regarding his calls, it is not one “society is prepared to recognize as 'reasonable.’ ” Ante, at 743. In so ruling, the Court determines that individuals who convey information to third parties have “assumed the risk” of disclosure to the government. Ante, at 744, 745. This analysis is misconceived in two critical respects.

Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. See, e. g., Lopez v. United States, 373 U. S. 427, 439 (1963); Hoffa v. United States, 385 U. S. 293, 302-303 (1966); United States v. White, supra, at 751-752 (plurality opinion). By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. Cf. Lopez v. United States, supra, at 465-466 (Brennan, J., dissenting). It is idle to speak of “assuming” risks in contexts where, as a practical matter, individuals have no realistic alternative.

More fundamentally, to make risk analysis dispositive in assessing the reasonableness of privacy expectations would allow the government to define the scope of Fourth Amendment protections. For example, law enforcement officials, simply by announcing their intent to monitor the content of random samples of first-class mail or private phone conversations, could put the public on notice of the risks they would thereafter assume in such communications. See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 384, 407 (1974). Yet, although acknowledging this implication of its analysis, the Court is willing to concede only that, in some circumstances, a further “normative inquiry would be proper.” Ante, at 740-741, n. 5. No meaningful effort is made to explain what those circumstances might be, or why this case is not among them.

In my view, whether privacy expectations are legitimate within the meaning of Katz depends not on the risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society. By its terms, the constitutional prohibition of unreasonable searches and seizures assigns to the judiciary some prescriptive responsibility. As Mr. Justice Harlan, who formulated the standard the Court applies today, himself recognized: “[s]ince it is the task of the law to form and project, as well as mirror and reflect, we should not . . . merely recite . . . risks without examining the desirability of saddling them upon society.” United States v. White, supra, at 786 (dissenting opinion). In making this assessment, courts must evaluate the “intrinsic character” of investigative practices with reference to the basic values underlying the Fourth Amendment. California Bankers Assn. v. Shultz, 416 U. S., at 95 (Marshall, J., dissenting). And for those “extensive intrusions that significantly jeopardize [individuals’] sense of security . . . , more than self-restraint by law enforcement officials is required.” United States v. White, 401 U. S., at 786 (Harlan, J., dissenting).

The use of pen registers, I believe, constitutes such an extensive intrusion. To hold otherwise ignores the vital role telephonic communication plays in our personal and professional relationships, see Katz v. United States, 389 U. S., at 352, as well as the First and Fourth Amendment interests implicated by unfettered official surveillance. Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. See NAACP v. Alabama, 357 U. S. 449, 463 (1958); Branzburg v. Hayes, 408 U. S. 665, 695 (1972); id., at 728-734 (Stewart, J., dissenting). Permitting governmental access to telephone records on less than probable cause may thus impede certain forms of political affiliation and journalistic endeavor that are the hallmark of a truly free society. Particularly given the Government’s previous reliance on warrantless telephonic surveillance to trace reporters’ sources and monitor protected political activity, I am unwilling to insulate use of pen registers from independent judicial review.

Just as one who enters a public telephone booth is “entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,” Katz v. United States, supra, at 352, so too, he should be entitled to assume that the numbers he dials in the privacy of his home will be recorded, if at all, solely for the phone company's business purposes. Accordingly, I would require law enforcement officials to obtain a warrant before they enlist telephone companies to secure information otherwise beyond the government’s reach.

       “A pen register is a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed.” United States v. New York Tel. Co., 434 U. S. 159, 161 n. 1 (1977). A pen register is “usually installed at a central telephone facility [and] records on a paper tape all numbers dialed from [the] line” to which it is attached. United States v. Giordano, 416 U. S. 505, 549 n. 1 (1974) (opinion concurring in part and dissenting in part). See also United States v. New York Tel. Co., 434 U. S., at 162.

       “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U. S. Const., Arndt. 4.

       See Application of United States for Order, 546 F. 2d 243, 245 (CA8 1976), cert. denied sub nom. Southwestern Bell Tel. Co. v. United States, 434 U. S. 1008 (1978); Application of United States in Matter of Order,
        538 F. 2d 956, 959-960 (CA2 1976), rev’d on other grounds sub nom. United States v. New York Tel. Co., 434 U. S. 159 (1977); United States v. Falcone, 505 F. 2d 478, 482, and n. 21 (CA3 1974), cert. denied, 420 U. S. 955 (1975); Hodge v. Mountain States Tel. & Tel. Co., 555 F. 2d 254, 256 (CA9 1977); id., at 266 (concurring opinion); and United States v. Clegg, 509 F. 2d 605, 610 (CA5 1975). In previous decisions, this Court has not found it necessary to consider whether “pen register surveillance [is] subject to the requirements of the Fourth Amendment.” United States v. New York Tel. Co., 434 U. S., at 165 n. 7. See United States v. Giordano, 416 U. S., at 554 n. 4 (opinion concurring in part and dissenting in part).

       In this case, the pen register was installed, and the numbers dialed were recorded, by the telephone company. Tr. 73-74. The telephone company, however, acted at police request. Id., at 73, 75. In view of this, respondent appears to concede that the company is to be deemed an “agent” of the police for purposes of this case, so as to render the installation and use of the pen register “state action” under the Fourth and Fourteenth Amendments. We may assume that “state action” was present here.

       Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to war-rantless entry, individuals thereafter might not in fact entertain any actual expectation of privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.

         It is true, as the Court pointed out in United States v. New York Tel. Co., 434 U. S. 159, 166-167, that under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§2510-2520, pen registers are not considered “interceptions” because “they do not acquire the ‘contents’ of communications,” as that term is defined by Congress. We are concerned in this ease, however, not with the technical definitions of a statute, but with the requirements of the Constitution.

       The question whether a defendant who is not a member of the subscriber’s household has “standing” to object to pen register surveillance of a private telephone is, of course, distinct. Cf. Rakas v. Illinois, 439 U. S. 128.

       Lacking the Court’s apparently exhaustive knowledge of this Nation’s telephone books and the reading habits of telephone subscribers, see ante, at 742-743, I decline to assume general public awareness of how obscene phone calls are traced. Nor am I persuaded that the scope of Fourth Amendment protection should turn on the concededly “esoteric functions” of pen registers in corporate billing, ante, at 742, functions with which subscribers are unlikely to have intimate familiarity.

       See, e. g., Reporters Committee For Freedom of Press v. American Tel. & Tel. Co., 192 U. S. App. D. C. 376, 593 F. 2d 1030 (1978), cert. denied, 440 U. S. 949 (1979); Halperin v. Kissinger, 434 F. Supp. 1193 (DC 1977); Socialist Workers Party v. Attorney General, 463 F. Supp. 515 (SDNY 1978).