author: Justice Kennedy Justice Brennan, Justice Marshall,

text:
    ILLINOIS v. PERKINS
    No. 88-1972.
    Argued February 20, 1990
    Decided June 4, 1990

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, O’Connor, and Scalia, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, post, p. 300. Marshall, J., filed a dissenting opinion, post, p. 303.

      Marcia L. Friedl, Assistant Attorney General of Illinois, argued the cause for petitioner. With her on the briefs were Neil F. Hartigan, Attorney General, Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Jack Donatelli, Assistant Attorneys General.

      Paul J. Larkin, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Dennis, and Deputy Solicitor General Bryson.

      Dan W. Evers, by appointment of the Court, 493 U. S. 930, argued the cause for respondent. With him on the brief was Daniel M. Kirwan.

      Briefs of amici curiae urging reversal were filed for Americans for Effective Law Enforcement, Inc., et al. by Gregory U. Evans, Daniel B. Hales, George D. Webster, Jack E. Yelverton, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak; and for the Lincoln Legal Foundation et al. by Joseph A. Morris, Donald D. Bemardi, Fred L. Foreman, Daniel M. Harrod, and Jack E. Yelverton.

        John A. Powell, William B. Rubenstein, and Harvey Grossman filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

   Justice Kennedy

delivered the opinion of the Court.

An undercover government agent was placed in the cell of respondent Perkins, who was incarcerated on charges unrelated to the subject of the agent’s investigation. Respondent made statements that implicated him in the crime that the agent sought to solve. Respondent claims that the statements should be inadmissible because he had not been given Miranda warnings by the agent. We hold that the statements are admissible. Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.

I

In November 1984, Richard Stephenson was murdered in a suburb of East St. Louis, Illinois. The murder remained unsolved until March 1986, when one Donald Charlton told police that he had learned about a homicide from a fellow inmate at the Graham Correctional Facility, where Charlton had been serving a sentence for burglary. The fellow inmate was Lloyd Perkins, who is the respondent here. Charlton told police that, while at Graham, he had befriended respondent, who told him in detail about a murder that respondent had committed in East St. Louis. On hearing Charlton’s account, the police recognized details of the Stephenson murder that were not well known, and so they treated Charlton’s story as a credible one.

By the time the police heard Charlton’s account, respondent had been released from Graham, but police traced him to a jail in Montgomery County, Illinois, where he was being held pending trial on a charge of aggravated battery, unrelated to the Stephenson murder. The police wanted to investigate further respondent’s connection to the Stephenson murder, but feared that the use of an eavesdropping device would prove impracticable and unsafe. They decided instead to place an undercover agent in the cellblock with respondent and Charlton. The plan was for Charlton and undercover agent John Parisi to pose as escapees from a work release program who had been arrested in the course of a burglary. Parisi and Charlton were instructed to engage respondent in casual conversation and report anything he said about the Stephenson murder.

Parisi, using the alias “Vito Bianco,” and Charlton, both clothed in jail garb, were placed in the cellblock with respondent at the Montgomery County jail. The cellblock consisted of 12 separate cells that opened onto a common room. Respondent greeted Charlton who, after a brief conversation with respondent, introduced Parisi by his alias. Parisi told respondent that he “wasn’t going to do any more time” and suggested that the three of them escape. Respondent replied that the Montgomery County jail was “rinky-dink” and that they could “break out.” The trio met in respondent’s cell later that evening, after the other inmates were asleep, to refine their plan. Respondent said that his girlfriend could smuggle in a pistol. Charlton said: “Hey, Pm not a murderer, Pm a burglar. That’s your guys’ profession.” After telling Charlton that he would be responsible for any murder that occurred, Parisi asked respondent if he had ever “done” anybody. Respondent said that he had and proceeded to describe at length the events of the Stephenson murder. Parisi and respondent then engaged in some casual conversation before respondent went to sleep. Parisi did not give respondent Miranda warnings before the conversations.

Respondent was charged with the Stephenson murder. Before trial, he moved to suppress the statements made to Parisi in the jail. The trial court granted the motion to suppress, and the State appealed. The Appellate Court of Illinois affirmed, 176 Ill. App. 3d 443, 531 N. E. 2d 141 (1988), holding that Miranda v. Arizona, 384 U. S. 436 (1966), prohibits all undercover contacts with incarcerated suspects that are reasonably likely to elicit an incriminating response.

We granted certiorari, 493 U. S. 808 (1989), to decide whether an undercover law enforcement officer must give Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response. We now reverse.

II

In Miranda v. Arizona, supra, the Court held that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during “custodial interrogation” without a prior warning. Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody . . . .” Id., at 444. The warning mandated by Miranda was meant to preserve the privilege during “incommunicado interrogation of individuals in a police-dominated atmosphere.” Id., at 445. That atmosphere is said to generate “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467. “Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer v. McCarty, 468 U. S. 420, 437 (1984).

Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a “police-dominated atmosphere” and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. Rhode Island v. Innis, 446 U. S. 291, 301 (1980); Berkemer v. McCarty, supra, at 442. When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. Miranda, 384 U. S., at 449 (“[T]he ‘principal psychological factor contributing to a successful interrogation is privacy—being alone with the person under interrogation’”); id., at 445. There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.

It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. We reject 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. Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist. The state court here mistakenly assumed that because the suspect was in custody, no undercover questioning could take place. When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners. “[W]hen the agent carries neither badge nor gun and wears not ‘police blue,’ but the same prison gray” as the suspect, there is no “interplay between police interrogation and police custody.” Kamisar, Brewer v. Williams, Massiah and Miranda: What is “Interrogation”? When Does it Matter?, 67 Geo. L. J. 1, 67, 63 (1978).

Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. As we recognized in Miranda: “Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.” 384 U. S., at 478. Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns. Cf. Oregon v. Mathiason, 429 U. S. 492, 495-496 (1977) (per curiam); Moran v. Burbine, 475 U. S. 412 (1986) (where police fail to inform suspect of attorney’s efforts to reach him, neither Miranda nor the Fifth Amendment requires suppression of prearraignment confession after voluntary waiver).

Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. This case is illustrative. Respondent had no reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect respondent’s future treatment. Respondent viewed the cellmate-agent as an equal and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril.

The tactic employed here to elicit a voluntary confession from a suspect does not violate the Self-Incrimination Clause. We held in Hoffa v. United States, 385 U. S. 293 (1966), that placing an undercover agent near a suspect in order to gather incriminating information was permissible under the Fifth Amendment. In Hoffa, while petitioner Hoffa was on trial, he met often with one Partin, who, unbeknownst to Hoffa, was cooperating with law enforcement officials. Partin reported to officials that Hoffa had divulged his attempts to bribe jury members. We approved using Hoffa’s statements at his subsequent trial for jury tampering, on the rationale that “no claim ha[d] been or could [have been] made that [Hoffa’s] incriminating statements were the product of any sort of coercion, legal or factual.” Id., at 304. In addition, we found that the fact that Partin had fooled Hoffa into thinking that Partin was a sympathetic colleague did not affect the volun-tariness of the statements. Ibid. Cf. Oregon v. Mathiason, supra, at 495-496 (officer’s falsely telling suspect that suspect’s fingerprints had been found at crime scene did not render interview “custodial” under Miranda); Frazier v. Cupp, 394 U. S. 731, 739 (1969); Procunier v. Atchley, 400 U. S. 446, 453-454 (1971). The only difference between this case and Hoffa is that the suspect here was incarcerated, but detention, whether or not for the crime in question, does not warrant a presumption that the use of an undercover agent to speak with an incarcerated suspect makes any confession thus obtained involuntary.

Our decision in Mathis v. United States, 391 U. S. 1 (1968), is distinguishable. In Mathis, an inmate in a state prison was interviewed by an Internal Revenue Service agent about possible tax violations. No Miranda warning was given before questioning. The Court held that the suspect’s incriminating statements were not admissible at his subsequent trial on tax fraud charges. The suspect in Mathis was aware that the agent was a Government official, investigating the possibility of noncompliance with the tax laws. The case before us now is different. Where the suspect does not know that he is speaking to a government agent there is no reason to assume the possibility that the suspect might feel coerced. (The bare fact of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official, but we do not have occasion to explore that issue here.)

This Court’s Sixth Amendment decisions in Massiah v. United States, 377 U. S. 201 (1964), United States v. Henry, 447 U. S. 264 (1980), and Maine v. Moulton, 474 U. S. 159 (1985), also do not avail respondent. We held in those cases that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges have been filed, the Sixth Amendment prevents the government from interfering with the accused’s right to counsel. Moulton, supra, at 176. In the instant case no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable.

Respondent can seek no help from his argument that a bright-line rule for the application of Miranda is desirable. Law enforcement officers will have little difficulty putting into practice our holding that undercover agents need not

give Miranda warnings to incarcerated suspects. The use of undercover agents is a recognized law enforcement technique, often employed in the prison context to detect violence against correctional officials or inmates, as well as for the purposes served here. The interests protected by Miranda are not implicated in these cases, and the warnings are not required to safeguard the constitutional rights of inmates who make voluntary statements to undercover agents.

We hold that an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. The statements at issue in this case were voluntary, and there is no federal obstacle to their admissibility at trial. We now reverse and remand for proceedings not inconsistent with our opinion.

It is so ordered.

Justice Brennan,

concurring in the judgment.

The Court holds that Miranda v. Arizona, 384 U. S. 436 (1966), does not require suppression of a statement made by an incarcerated suspect to an undercover agent. Although I do not subscribe to the majority’s characterization of Miranda in its entirety, I do agree that when a suspect does not know that his questioner is a police agent, such questioning does not amount to “interrogation” in an “inherently coercive” environment so as to require application of Miranda. Since the only issue raised at this stage of the litigation is the applicability of Miranda, I concur in the judgment of the Court.

This is not to say that I believe the Constitution condones the method by which the police extracted the confession in this case. To the contrary, the deception and manipulation practiced on respondent raise a substantial claim that the confession was obtained in violation of the Due Process Clause. As we recently stated in Miller v. Fenton, 474 U. S. 104, 109-110 (1985):

“This Court has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment. . . . Although these decisions framed the legal inquiry in a variety of different ways, usually through the ‘convenient shorthand’ of asking whether the confession was ‘involuntary,’ Blackburn v. Alabama, 361 U. S. 199, 207 (1960), the Court’s analysis has consistently been animated by the view that ‘ours is an accusatorial and not an inquisitorial system,’ Rogers v. Richmond, 365 U. S. 534, 541 (1961), and that, accordingly, tactics for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment’s guarantee of fundamental fairness.”

That the right is derived from the Due Process Clause “is significant because it reflects the Court’s consistently held view that the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne.” Id., at 116. See Spano v. New York, 360 U. S. 315, 320-321 (1959) (“The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves”); see also Degraffenreid v. McKellar, 494 U. S. 1071, 1072-1074 (1990) (Marshall, J., joined by Brennan, J., dissenting from denial of certiorari).

The method used to elicit the confession in this case deserves close scrutiny. The police devised a ruse to lure respondent into incriminating himself when he was in jail on an unrelated charge. A police agent, posing as a fellow inmate and proposing a sham escape plot, tricked respondent into confessing that he had once committed a murder, as a way of proving that he would be willing to do so again should the need arise during the escape. The testimony of the undercover officer and a police informant at the suppression hearing reveal the deliberate manner in which the two elicited incriminating statements from respondent. See App. 43-53 and 66-73. We have recognized that “the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents.” United States v. Henry, 447 U. S. 264, 274 (1980). As Justice Marshall points out, the pressures of custody make a suspect more likely to confide in others and to engage in “jailhouse bravado.” See post, at 307-308. The State is in a unique position to exploit this vulnerability because it has virtually complete control over the suspect’s environment. Thus, the State can ensure that a suspect is barraged with questions from an undercover agent until the suspect confesses. Cf. Mincey v. Arizona, 437 U. S. 385, 399 (1978); Ashcraft v. Tennessee, 322 U. S. 143, 153-155 (1944). The testimony in this case suggests the State did just that.

The deliberate use of deception and manipulation by the police appears to be incompatible “with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means,” Miller, supra, at 116, and raises serious concerns that respondent’s will was overborne. It is open to the lower court on remand to determine whether, under the totality of the circumstances, respondent’s confession was elicited in a manner that violated the Due Process Clause. That the confession was not elicited through means of physical torture, see Brown v. Mississippi, 297 U. S. 278 (1936) or overt psychological pressure, see Payne v. Arkansas, 356 U. S. 560, 566 (1958), does not end the inquiry. “[A]s law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, [a court’s] duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made.” Spano, supra, at 321.

Justice Marshall,

dissenting.

This Court clearly and simply stated its holding in Miranda v. Arizona, 384 U. S. 436 (1966): “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444. The conditions that require the police to apprise a defendant of his constitutional rights—custodial interrogation conducted by an agent of the police—were present in this case. Because Lloyd Perkins received no Miranda warnings before he was subjected to custodial interrogation, his confession was not admissible.

The Court reaches the contrary conclusion by fashioning an exception to the Miranda rule that applies whenever “an undercover law enforcement officer posing as a fellow inmate . . . ask[s] questions that may elicit an incriminating response” from an incarcerated suspect. Ante, at 300. This exception is inconsistent with the rationale supporting Miranda and allows police officers intentionally to take advantage of suspects unaware of their constitutional rights. I therefore dissent.

The Court does not dispute that the police officer here conducted a custodial interrogation of a criminal suspect. Perkins was incarcerated in county jail during the questioning at issue here; under these circumstances, he was in custody as that term is defined in Miranda. 384 U. S., at 444; Mathis v. United States, 391 U. S. 1, 4-5 (1968) (holding that defendant incarcerated on charges different from the crime about which he is questioned was in custody for purposes of Miranda). The United States argues that Perkins was not in custody for purpose of Miranda because he was familiar with the custodial environment as a result of being in jail for two days and previously spending time in prison. Brief for United States as Amicus Curiae 11. Perkins’ familiarity with confinement, however, does not transform his incarceration into some sort of noncustodial arrangement. Cf. Orozco v. Texas, 394 U. S. 324 (1969) (holding that suspect who had been arrested in his home and then questioned in his bedroom was in custody, notwithstanding his familiarity with the surroundings).

While Perkins was confined, an undercover police officer, with the help of a police informant, questioned him about a serious crime. Although the Court does not dispute that Perkins was interrogated, it downplays the nature of the 35-minute questioning by disingenuously referring to it as a “conversation.” Ante, at 295, 296. The officer’s narration of the “conversation” at Perkins’ suppression hearing, however, reveals that it clearly was an interrogation.

“[Agent:] You ever do anyone?
“[Perkins:] Yeah, once in East St. Louis, in a rich white neighborhood.
“Informant: I didn’t know they had any rich white neighborhoods in East St. Louis.
“Perkins: It wasn’t in East St. Louis, it was by a race track in Fairview Heights. . . .
“[Agent]: You did a guy in Fairview Heights?
“Perkins: Yeah in a rich white section where most of the houses look the same.
“[Informant]: If all the houses look the same, how did you know you had the right house?
“Perkins: Me and two guys cased the house for about a week. I knew exactly which house, the second house on the left from the corner.
“[Agent]: How long ago did this happen?
“Perkins: Approximately about two years ago. I got paid $5,000 for that job.
“[Agent]: How did it go down?
“Perkins: I walked up [to] this guy[’s] house with a sawed-off under my trench coat.
“[Agent]: What type gun[?]
“Perkins: A .12 gauge Remmington [sic] Automatic Model 1100 sawed-off.” App. 49-50.

The police officer continued the inquiry, asking a series of questions designed to elicit specific information about the victim, the crime scene, the weapon, Perkins’ motive, and his actions during and after the shooting. Id., at 50-52. This interaction was not a “conversation”; Perkins, the officer, and the informant were not equal participants in a free-ranging discussion, with each man offering his views on different topics. Rather, it was an interrogation: Perkins was subjected to express questioning likely to evoke an incriminating re sponse. Rhode Island v. Innis, 446 U. S. 291, 300-301 (1980).

Because Perkins was interrogated by police while he was in custody, Miranda required that the officer inform him of his rights. In rejecting that conclusion, the Court finds that “conversations” between undercover agents and suspects are devoid of the coercion inherent in station house interrogations conducted by law enforcement officials who openly represent the State. Ante, at 296. Miranda was not, however, concerned solely with police coercion. It dealt with any police tactics that may operate to compel a suspect in custody to make incriminating statements without full awareness of his constitutional rights. See Miranda, supra, at 468 (referring to “inherent pressures of the interrogation atmosphere”); Estelle v. Smith, 451 U. S. 454, 467 (1981) (“The purpose of [the Miranda] admonitions is to combat what the Court saw as ‘inherently compelling pressures’ at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of forgoing it”) (quoting Miranda, 384 U. S., at 467). Thus, when a law enforcement agent structures a custodial interrogation so that a suspect feels compelled to reveal incriminating information, he must inform the suspect of his constitutional rights and give him an opportunity to decide whether or not to talk.

The compulsion proscribed by Miranda includes deception by the police. See Miranda, supra, at 453 (indicting police tactics “to induce a confession out of trickery,” such as using fictitious witnesses or false accusations); Berkemer v. McCarty, 468 U. S. 420, 433 (1984) (“The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing”) (emphasis deleted and added). Cf. Moran v. Burbine, 475 U. S. 412, 421 (1986) (“[T]he relinquishment of the right [protected by the Miranda warnings] must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception”) (em phasis added). Although the Court did not find trickery by itself sufficient to constitute compulsion in Hoffa v. United States, 385 U. S. 293 (1966), the defendant in that case was not in custody. Perkins, however, was interrogated while incarcerated. As the Court has acknowledged in the Sixth Amendment context: “[T]he mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents.” United States v. Henry, 447 U. S. 264, 274 (1980). See also Massiah v. United States, 377 U. S. 201, 206 (1964) (holding, in the context of the Sixth Amendment, that defendant’s constitutional privilege against self-incrimination was “more seriously imposed upon . . . because he did not even know that he was under interrogation by a government agent”) (citation and internal quotation marks omitted).

Custody works to the State’s advantage in obtaining incriminating information. The psychological pressures inherent in confinement increase the suspect’s anxiety, making him likely to seek relief by talking with others. Dix, Undercover Investigations and Police Rulemaking, 53 Texas L. Rev. 203, 230 (1975). See also Gibbs, The First Cut is the Deepest: Psychological Breakdown and Survival in the Detention Setting, in The Pains of Imprisonment 97, 107 (R. Johnson & H. Toch eds. 1982); Hagel-Seymour, Environmental Sanctuaries for Susceptible Prisoners, in The Pains of Imprisonment, supra, at 267, 279; Chicago Tribune, Apr. 15, 1990, p. D3 (prosecutors have found that prisoners often talk freely with fellow inmates). The inmate is thus more susceptible to efforts by undercover agents to elicit information from him. Similarly, where the suspect is incarcerated, the constant threat of physical danger peculiar to the prison environment may make him demonstrate his toughness to other inmates by recounting or inventing past violent acts. “Because the suspect’s ability to select people with whom he can confide is completely within their control, the police have a unique opportunity to exploit the suspect’s vulnerability. In short, the police can insure that if the pressures of confinement lead the suspect to confide in anyone, it will be a police agent.” (Footnote omitted.) White, Police Trickery in Inducing Confessions, 127 U. Pa. L. Rev. 581, 605 (1979). In this case, the police deceptively took advantage of Perkins’ psychological vulnerability by including him in a sham escape plot, a situation in which he would feel compelled to demonstrate his willingness to shoot a prison guard by revealing his past involvement in a murder. See App. 49 (agent stressed that a killing might be necessary in the escape and then asked Perkins if he had ever murdered someone).

Thus, the pressures unique to custody allow the police to use deceptive interrogation tactics to compel a suspect to make an incriminating statement. The compulsion is not eliminated by the suspect’s ignorance of his interrogator’s true identity. The Court therefore need not inquire past the bare facts of custody and interrogation to determine whether Miranda warnings are required.

The Court’s adoption of an exception to the Miranda doctrine is incompatible with the principle, consistently applied by this Court, that the doctrine should remain simple and clear. See, e. g., Miranda, supra, at 441-442 (noting that one reason certiorari was granted was “to give concrete constitutional guidelines for law enforcement agencies and courts to follow”); McCarty, supra, at 430 (noting that one of “the principal advantages of the [Miranda] doctrine . . . is the clarity of that rule”); Arizona v. Roberson, 486 U. S. 675, 680 (1988) (same). See also New York v. Quarles, 467 U. S. 649, 657-658 (1984) (recognizing need for clarity in Miranda doctrine and finding that narrow “public safety” exception would not significantly lessen clarity and would be easy for police to apply). We explained the benefits of a brightline rule in Fare v. Michael C., 442 U. S. 707 (1979): “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.” Id., at 718.

The Court’s holding today complicates a previously clear and straightforward doctrine. The Court opines that “[l]aw enforcement officers will have little difficulty putting into practice our holding that undercover agents need not give Miranda warnings to incarcerated suspects.” Ante, at 299-300. Perhaps this prediction is true with respect to fact patterns virtually identical to the one before the Court today. But the outer boundaries of the exception created by the Court are by no means clear. Would Miranda be violated, for instance, if an undercover police officer beat a confession out of a suspect, but the suspect thought the officer was another prisoner who wanted the information for his own purposes?

Even if Miranda, as interpreted by the Court, would not permit such obviously compelled confessions, the ramifications of today’s opinion are still disturbing. The exception carved out of the Miranda doctrine today may well result in a proliferation of departmental policies to encourage police officers to conduct interrogations of confined suspects through undercover agents, thereby circumventing the need to administer Miranda warnings. Indeed, if Miranda now requires a police officer to issue warnings only in those situations in which the suspect might feel compelled “to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess,” ante, at 296-297, presumably it allows custodial interrogation by an undercover officer posing as a member of the clergy or a suspect’s defense attorney. Although such abhorrent tricks would play on a suspect’s need to confide in a trusted adviser, neither would cause the suspect to “think that the listeners have official power over him,” ante, at 297. The Court’s adoption of the “undercover agent” exception to the Miranda rule thus is necessarily also the adoption of a substantial loophole in our jurisprudence protecting suspects’ Fifth Amendment rights.

I dissent.

      As the case comes to us, it involves only the question whether Miranda applies to the questioning of an incarcerated suspect by an undercover agent. Nothing in the Court’s opinion suggests that, had respondent previously invoked his Fifth Amendment right to counsel or right to silence, his statements would be admissible. If respondent had invoked either right, the inquiry would focus on whether he subsequently waived the particular right. See Edwards v. Arizona, 451 U. S. 477 (1981); Michigan v. Mosley 423 U. S. 96, 104 (1975). As the Court made clear in
        Moran v. Burbine, 475 U. S. 412, 421 (1986), the waiver of Miranda rights “must [be] voluntary in the sense that it [must be] the product of a free and deliberate choice rather than intimidation, coercion or deception." (Emphasis added.) Since respondent was in custody on an unrelated charge when he was questioned, he may be able to challenge the admission of these statements if he previously had invoked his Miranda rights with respect to that charge. See Arizona v. Roberson, 486 U. S. 675 (1988); Mosley, supra, at 104. Similarly, if respondent had been formally charged on the unrelated charge and had invoked his Sixth Amendment right to counsel, he may have a Sixth Amendment challenge to the admissibility of these statements. See Michigan v. Jackson, 475 U. S. 625, 629-636 (1986). Cf. Roberson, supra, at 683-685.


source: Caselaw Access Project

author: Justice Brennan Justice Stevens,

license: Public Domain

text:
    UNITED STATES v. EICHMAN et al.
    No. 89-1433.
    Argued May 14, 1990
    Decided June 11, 1990

      BRENNAN, J., delivered the opinion of the Court, in which Marshall, Blackmun, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Rehnquist, C. J., and White and O’Connor, JJ., joined, post, p. 319.

      Solicitor General Starr argued the cause for the United States. With him on the briefs were Assistant Attorney General Dennis, Deputy Solicitor General Roberts, and Michael R. Lazerwitz.

      William M. Kunstler argued the cause for appellees in both cases. With him on the brief in both cases were Ronald L. Kuby, David D. Cole, Nina Kraut, and Kevin Peck. Charles S. Hamilton III, by appointment of the Court, 495 U. S. 902, filed a brief in No. 89-1434 for appellee Strong.

      Together with No. 89-1434, United States v. Haggerty et al., on appeal from the District Court for the Western District of Washington.

       Briefs of amici curiae urging reversal were filed for the United States Senate by Michael Davidson, Ken U. Benjamin, Jr., and Morgan J. Frankel; for Senator Joseph R. Biden, Jr., by Kenneth S. Geller, Andrew

        J. Pincus, and Roy T. Englert, Jr.; for Governor Mario M. Cuomo by Evan A. Davis; and for the Southeastern Legal Foundation, Inc., by Robert L. Barr, Jr., and G. Stephen Parker.

      Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Charles Fried, Kathleen M. Sullivan, Norman Dorsen, and Steven R. Shapiro; for the Association of Art Museum Directors et al. by James C. Goodale; for the National Association for the Advancement of Colored People by Charles E. Carter; for People for the American Way et al. by Timothy B. Dyk, Glen D. Nager, and Elliot M. Mincberg; and for Jasper Johns et al. by Robert G. Sugarman and Gloria C. Phares.

      Briefs of amici curiae were filed for the Speaker and Leadership Group of the United States House of Representatives by Steven R. Ross, Charles Tiefer, Michael L. Murray, Janina Jaruzelski, and Robert Michael Long; and for the American Bar Association by Stanley Chauvin, Jr., Randolph W. Thrower, and Robert B. McKay.

   Justice Brennan

delivered the opinion of the Court.

In these consolidated appeals, we consider whether appellees’ prosecution for burning a United States flag in violation of the Flag Protection Act of 1989 is consistent with the First Amendment. Applying our recent decision in Texas v. Johnson, 491 U. S. 397 (1989), the District Courts held that the Act cannot constitutionally be applied to appellees. We affirm.

I

In No. 89-1433, the United States prosecuted certain appellees for violating the Flag Protection Act of 1989, 103 Stat. 777, 18 U. S. C. § 700 (1988 ed. and Supp. I), by knowingly setting fire to several United States flags on the steps of the United States Capitol while protesting various aspects of the Government’s domestic and foreign policy. In No. 89-1434, the United States prosecuted other appellees for violating the Act by knowingly setting fire to a United States flag in Seattle while protesting the Act’s passage. In each case, the respective appellees moved to dismiss the flag-burning charge on the ground that the Act, both on its face and as applied, violates the First Amendment. Both the United States District Court for the Western District of Washington, 731 F. Supp. 415 (1990), and the United States District Court for the District of Columbia, 731 F. Supp. 1123 (1990), following Johnson, supra, held the Act unconstitutional as applied to appellees and dismissed the charges. The United States appealed both decisions directly to this Court pursuant to 18 U. S. C. § 700(d) (1982 ed., Supp. I). We noted probable jurisdiction and consolidated the two cases. 494 U. S. 1063 (1990).

II

Last Term in Johnson, we held that a Texas statute criminalizing the desecration of venerated objects, including the United States flag, was unconstitutional as applied to an individual who had set such a flag on fire during a political demonstration. The Texas statute provided that “[a] person commits an offense if he intentionally or knowingly desecrates . . . [a] national flag,” where “desecrate” meant to “deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.” Tex. Penal Code Ann. § 42.09 (1989). We first held that Johnson’s flag burning was “conduct 'sufficiently imbued with elements of communication’ to implicate the First Amendment.” 491 U. S., at 406 (citation omitted). We next considered and rejected the State’s contention that, under United States v. O’Brien, 391 U. S. 367 (1968), we ought to apply the deferential standard with which we have reviewed Government regulations of conduct containing both speech and nonspeech elements where “the governmental interest is unrelated to the suppression of free expression.” Id., at 377. We reasoned that the State’s asserted interest “in preserving the flag as a symbol of nationhood and national unity,” was an interest “related ‘to the suppression of free expression’ within the meaning of O’Brien” because the State’s concern with protecting the flag’s symbolic meaning is implicated “only when a person’s treatment of the flag communicates some message.” Johnson, supra, at 410. We therefore subjected the statute to “‘the most exacting scrutiny,”’ 491 U. S., at 412, quoting Boos v. Barry, 485 U. S. 312, 321 (1988), and we concluded that the State’s asserted interests could not justify the infringement on the demonstrator’s First Amendment rights.

After our decision in Johnson, Congress passed the Flag Protection Act of 1989. The Act provides in relevant part:

“(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.
“(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has become worn or soiled.
“(b) As used in this section, the term ‘flag of the United States’ means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.” 18 U. S. C. § 700 (1988 ed., Supp. I).

The Government concedes in these cases, as it must, that appellees’ flag burning constituted expressive conduct, Brief for United States 28; see Johnson, 491 U. S., at 405-406, but invites us to reconsider our rejection in Johnson of the claim that flag burning as a mode of expression, like obscenity or “fighting words,” does not enjoy the full protection of the First Amendment. Cf. Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942). This we decline to do. The only remaining question is whether the Flag Protection Act is sufficiently distinct from the Texas statute that it may constitutionally be applied to proscribe appellees’ expressive conduct.

The Government contends that the Flag Protection Act is constitutional because, unlike the statute addressed in Johnson, the Act does not target expressive conduct on the basis of the content of its message. The Government asserts an interest in “protecting] the physical integrity of the flag under all circumstances” in order to safeguard the flag’s identity “‘as the unique and unalloyed symbol of the Nation.’” Brief for United States 28, 29. The Act proscribes conduct (other than disposal) that damages or mistreats a flag, without regard to the actor’s motive, his intended message, or the likely effects of his conduct on onlookers. By contrast, the Texas statute expressly prohibited only those acts of physical flag desecration “that the actor knows will seriously offend” onlookers, and the former federal statute prohibited only those acts of desecration that “cas[t] contempt upon” the flag.

Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government’s asserted interest is “related ‘to the suppression of free expression,’” 491 U. S., at 410, and concerned with the content of such expression. The Government’s interest in protecting the “physical integrity” of a privately owned flag rests upon a perceived need to preserve the flag’s status as a symbol of our Nation and certain national ideals. But the mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way. For example, the secret destruction of a flag in one’s own basement would not threaten the flag’s recognized meaning. Rather, the Government’s desire to preserve the flag as a symbol for certain national ideals is implicated “only when a person’s treatment of the flag communicates [a] message” to others that is inconsistent with those ideals. Ibid.

Moreover, the precise language of the Act’s prohibitions confirms Congress’ interest in the communicative impact of flag destruction. The Act criminalizes the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag.” 18 U. S. C. § 700(a)(1) (1988 ed., Supp. I). Each of the specified terms—with the possible exception of “burns”—unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag’s symbolic value. And the explicit exemption in § 700(a)(2) for disposal of “worn or soiled” flags protects certain acts traditionally associated with patriotic respect for the flag.

As we explained in Johnson, supra, at 416-417: “[I]f we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role—as where, for example, a person ceremoniously burns a dirty flag—we would be . . . permitting a State to ‘prescribe what shall be orthodox’ by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.” Although Congress cast the Flag Protection Act of 1989 in somewhat broader terms than the Texas statute at issue in Johnson, the Act still suffers from the same fundamental flaw: It suppresses expression out of concern for its likely communicative impact. Despite the Act’s wider scope, its restriction on expression cannot be “‘justified without reference to the content of the regulated speech.’” Boos, 485 U. S., at 320 (emphasis omitted) (citation omitted); see Spence v. Washington, 418 U. S. 405, 414, nn. 8, 9 (1974) (State’s interest in protecting flag’s symbolic value is directly related to suppression of expression and thus O’Brien test is inapplicable even where statute declared “simply . . . that nothing may be affixed to or superimposed on a United States flag”). The Act therefore must be subjected to “the most exacting scrutiny,” Boos, supra, at 321, and for the reasons stated in Johnson, 491 U. S., at 413-415, the Government’s interest cannot justify its infringement on First Amendment rights. We decline the Government’s invitation to reassess this conclusion in light of Congress’ recent recognition of a purported “national consensus” favoring a prohibition on flag burning. Brief for United States 27. Even assuming such a consensus exists, any suggestion that the Government’s interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.

Ill

“‘National unity as an end which officials may foster by persuasion and example is not in question.’” Johnson, supra, at 418, quoting West Virginia Board of Education v. Barnette, 319 U. S. 624, 640 (1943). Government may create national symbols, promote them, and encourage their respectful treatment. But the Flag Protection Act of 1989 goes well beyond this by criminally proscribing expressive conduct because of its likely communicative impact.

We are aware that desecration of the flag is deeply offensive to many. But the same might be said, for example, of virulent ethnic and religious epithets, see Terminiello v. Chicago, 337 U. S. 1 (1949), vulgar repudiations of the draft, see Cohen v. California, 403 U. S. 15 (1971), and scurrilous caricatures, see Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988). “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering. The judgments of the District Courts are

Affirmed.

Justice Stevens,

with whom The Chief Justice, Justice White, and Justice O’Connor join, dissenting.

The Court’s opinion ends where proper analysis of the issue should begin. Of course “the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Ante this page. None of us disagrees with that proposition. But it is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker’s freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition.

Contrary to the position taken by counsel for the flag burners in Texas v. Johnson, 491 U. S. 397 (1989), it is now conceded that the Federal Government has a legitimate interest in protecting the symbolic value of the American flag. Obviously that value cannot be measured, or even described, with any precision. It has at least these two components: In times of national crisis, it inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance; at all times, it serves as a reminder of the paramount importance of pursuing the ideals that characterize our society.

The first question the Court should consider is whether the interest in preserving the value of that symbol is unrelated to suppression of the ideas that flag burners are trying to express. In my judgment the answer depends, at least in part, on what those ideas are. A flag burner might intend various messages. The flag burner may wish simply to convey hatred, contempt, or sheer opposition directed at the United States. This might be the case if the flag were burned by an enemy during time of war. A flag burner may also, or instead, seek to convey the depth of his personal conviction about some issue, by willingly provoking the use of force against himself. In so doing, he says that “my disagreement with certain policies is so strong that I am prepared to risk physical harm (and perhaps imprisonment) in order to call attention to my views.” This second possibility apparently describes the expressive conduct of the flag burners in these cases. Like the protesters who dramatized their opposition to our engagement in Vietnam by publicly burning their draft cards—and who were punished for doing so—their expressive conduct is consistent with affection for this country and respect for the ideals that the flag symbolizes. There is at least one further possibility: A flag burner may intend to make an accusation against the integrity of the American people who disagree with him. By burning the embodiment of America’s collective commitment to freedom and equality, the flag burner charges that the majority has forsaken that commitment—that continued respect for the flag is nothing more than hypocrisy. Such a charge may be made even if the flag burner loves the country and zealously pursues the ideals that the country claims to honor.

The idea expressed by a particular act of flag burning is necessarily dependent on the temporal and political context in which it occurs. In the 1960’s it may have expressed opposition to the country’s Vietnam policies, or at least to the compulsory draft. In Texas v. Johnson, it apparently expressed opposition to the platform of the Republican Party. In these cases, the appellees have explained that it expressed their opposition to racial discrimination, to the failure to care for the homeless, and of course to statutory prohibitions of flag burning. In any of these examples, the protesters may wish both to say that their own position is the only one faithful to liberty and equality, and to accuse their fellow citizens of hypocritical indifference to—or even of a selfish departure from—the ideals which the flag is supposed to symbolize. The ideas expressed by flag burners are thus various and often ambiguous.

The Government’s legitimate interest in preserving the symbolic value of the flag is, however, essentially the same regardless of which of many different ideas may have motivated a particular act of flag burning. As I explained in my dissent in Johnson, 491 U. S., at 436-439, the flag uniquely symbolizes the ideas of liberty, equality, and tolerance—ideas that Americans have passionately defended and debated throughout our history. The flag embodies the spirit of our national commitment to those ideals. The message thereby transmitted does not take a stand upon our disagreements, except to say that those disagreements are best regarded as competing interpretations of shared ideals. It does not judge particular policies, except to say that they command respect when they are enlightened by the spirit of liberty and equality. To the world, the flag is our promise that we will continue to strive for these ideals. To us, the flag is a reminder both that the struggle for liberty and equality is unceasing, and that our obligation of tolerance and respect for all of our fellow citizens encompasses those who disagree with us—indeed, even those whose ideas are disagreeable or offensive.

Thus, the Government may—indeed, it should—protect the symbolic value of the flag without regard to the specific content of the flag burners’ speech. The prosecution in these cases does not depend upon the object of the defendants’ protest. It is, moreover, equally clear that the prohibition does not entail any interference with the speaker’s freedom to express his or her ideas by other means. It may well be true that other means of expression may be less effective in drawing attention to those ideas, but that is not itself a sufficient reason for immunizing flag burning. Presumably a gigantic fireworks display or a parade of nude models in a public park might draw even more attention to a controversial message, but such methods of expression are nevertheless subject to regulation.

These cases therefore come down to a question of judgment. Does the admittedly important interest in allowing every speaker to choose the method of expressing his or her ideas that he or she deems most effective and appropriate outweigh the societal interest in preserving the symbolic value of the flag? This question, in turn, involves three different judgments: (1) The importance of the individual interest in selecting the preferred means of communication; (2) the importance of the national symbol; and (3) the question whether tolerance of flag burning will enhance or tarnish that value. The opinions in Texas v. Johnson demonstrate that reasonable judges may differ with respect to each of these judgments.

The individual interest is unquestionably a matter of great importance. Indeed, it is one of the critical components of the idea of liberty that the flag itself is intended to symbolize. Moreover, it is buttressed by the societal interest in being alerted to the need for thoughtful response to voices that might otherwise go unheard. The freedom of expression protected by the First Amendment embraces not only the freedom to communicate particular ideas, but also the right to communicate them effectively. That right, however, is not absolute—the communicative value of a well-placed bomb in the Capitol does not entitle it to the protection of the First Amendment.

Burning a flag is not, of course, equivalent to burning a public building. Assuming that the protester is burning his own flag, it causes no physical harm to other persons or to their property. The impact is purely symbolic, and it is apparent that some thoughtful persons believe that impact, far from depreciating the value of the symbol, will actually enhance its meaning. I most respectfully disagree. Indeed, what makes these cases particularly difficult for me is what I regard as the damage to the symbol that has already occurred as a result of this Court’s decision to place its stamp of approval on the act of flag burning. A formerly dramatic expression of protest is now rather commonplace. In today’s marketplace of ideas, the public burning of a Vietnam draft card is probably less provocative than lighting a cigarette. Tomorrow flag burning may produce a similar reaction. There is surely a direct relationship between the communicative value of the act of flag burning and the symbolic value of the object being burned.

The symbolic value of the American flag is not the same today as it was yesterday. Events during the last three decades have altered the country’s image in the eyes of numerous Americans, and some now have difficulty understanding the message that the flag conveyed to their parents and grandparents—whether born abroad and naturalized or native born. Moreover, the integrity of the symbol has been compromised by those leaders who seem to advocate compulsory worship of the flag even by individuals whom it offends, or who seem to manipulate the symbol of national purpose into a pretext for partisan disputes about meaner ends. And, as I have suggested, the residual value of the symbol after this Court’s decision in Texas v. Johnson is surely not the same as it was a year ago.

Given all these considerations, plus the fact that the Court today is really doing nothing more than reconfirming what it has already decided, it might be appropriate to defer to the judgment of the majority and merely apply the doctrine of stare decisis to the cases at hand. That action, however, would not honestly reflect my considered judgment concerning the relative importance of the conflicting interests that are at stake. I remain persuaded that the considerations identified in my opinion in Texas v. Johnson are of controlling importance in these cases as well.

Accordingly, I respectfully dissent.

       The Seattle appellees were also charged with causing willful injury to federal property in violation of 18 U. S. C. §§ 1361 and 1362. This charge remains pending before the District Court, and nothing in today’s decision affects the constitutionality of this prosecution. See n. 5, infra.

      “(1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order issued by a United States district court ruling upon the constitutionality of subsection (a).
      “(2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appeal and advance on the docket and expedite to the greatest extent possible.” 18 U. S. C. § 700(d) (1988 ed., Supp. I).

       The Act replaced the then-existing federal flag-burning statute, which Congress perceived might be unconstitutional in light of Johnson. Former 18 U. S. C. § 700(a) prohibited “knowingly casting] contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning, or trampling upon it.”

       We deal here with concededly political speech and have no occasion to pass on the validity of laws regulating commercial exploitation of the image of the United States flag. See Texas v. Johnson, 491 U. S. 397, 415-416, n. 10 (1989); cf. Halter v. Nebraska, 205 U. S. 34 (1907).

       Today’s decision does not affect the extent to which the Government’s interest in protecting publicly owned flags might justify special measures on their behalf. See Spence v. Washington, 418 U. S. 405, 408-409 (1974); cf. Johnson, supra, at 412-413, n. 8.

       Aside from the flag’s association with particular ideals, at some irreducible level the flag is emblematic of the Nation as a sovereign entity. The Government’s amici assert that it has a legitimate nonspeech-related interest in safeguarding this “eminently practical legal aspect of the flag, as an incident of sovereignty.” Brief for the Speaker and Leadership Group of the U. S. House of Representatives as Amici Curiae 25. This interest has firm historical roots: “While the symbolic role of the flag is now well-established, the flag was an important incident of sovereignty before it was used for symbolic purposes by patriots and others. When the nation’s founders first determined to adopt a national flag, they intended to serve specific functions relating to our status as a sovereign nation.” Id., at 9; see id., at 5 (noting “flag’s ‘historic function’ for such sovereign purposes as marking ‘our national presence in schools, public buildings, battleships and airplanes’ ”) (citation omitted).
      We concede that the Government has a legitimate interest in preserving the flag’s function as an “incident of sovereignty,” though we need not address today the extent to which this interest may justify any laws regulating conduct that would thwart this core function, as might a commercial or like appropriation of the image of the United States flag. Amici do not, and cannot, explain how a statute that penalizes anyone who knowingly burns, mutilates, or defiles any American flag is designed to advance this asserted interest in maintaining the association between the flag and the Nation. Burning a flag does not threaten to interfere with this association in any way; indeed, the flag burner’s message depends in part on the viewer’s ability to make this very association.

       For example, “defile” is defined as “to make filthy; to corrupt the purity or perfection of; to rob of chastity; to make ceremonially unclean; tarnish, dishonor.” Webster’s Third New International Dictionary 592 (1976). “Trample” is defined as “to tread heavily so as to bruise, crush, or injure; to inflict injury or destruction: have a contemptuous or ruthless attitude.” Id., at 2425.

       The Act also does not prohibit flying a flag in a storm or other conduct that threatens the physical integrity of the flag, albeit in an indirect manner unlikely to communicate disrespect.

       See, e. g., 36 U. S. C. §§173-177 (suggesting manner in which flag ought to be displayed).


author:
Justice White
      Justice Stevens,

text:
    ALABAMA v. WHITE
    No. 89-789.
    Argued April 17, 1990
    Decided June 11, 1990

      White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, post, p. 333.

      Joseph G. L. Marston III, Assistant Attorney General of Alabama, argued the cause for petitioner. With him on the briefs were Don Siegelman, Attorney General, and Stacy S. Houston, Rosa Hamlett Davis, and Andrew J. Segal, Assistant Attorneys General.

      David B. Byrne, Jr., by appointment of the Court, 493 U. S. 1054, argued the cause and filed a brief for respondent.

       Briefs of amici curiae were filed for the American Civil Liberties Union et al. by Steven R. Shapiro and David I. Schoen; and for Americans for Effective Law Enforcement, Inc., et al. by Gregory U. Evans, Daniel B. Hales, Joseph A. Morris, George D. Webster, Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, William K. Lambie, and James P. Manak.

   Justice White

delivered the opinion of the Court.

Based on an anonymous telephone tip, police stopped respondent’s vehicle. A consensual search of the car revealed drugs. The issue is whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. We hold that it did.

On April 22, 1987, at approximately 3 p.m., Corporal B. H. Davis of the Montgomery Police Department received a telephone call from an anonymous person, stating that Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case. Corporal Davis and his partner, Corporal P. A. Reynolds, proceeded to the Lynwood Terrace Apartments. The officers saw a brown Plymouth station wagon with a broken right taillight in the parking lot in front of the 235 building. The officers observed respondent leave the 235 building, carrying nothing in her hands, and enter the station wagon. They followed the vehicle as it drove the most direct route to Dobey’s Motel. When the vehicle reached the Mobile Highway, on which Dobey’s Motel is located, Corporal Reynolds requested a patrol unit to stop the vehicle. The vehicle was stopped at approximately 4:18 p.m., just short of Dobey’s Motel. Corporal Davis asked respondent to step to the rear of her car, where he informed her that she had been stopped because she was suspected of carrying cocaine in the vehicle. He asked if they could look for cocaine, and respondent said they could look. The officers found a locked brown attaché case in the car, and, upon request, respondent provided the combination to the lock. The officers found marijuana in the attaché case and placed respondent under arrest. During processing at the station, the officers found three milligrams of cocaine in respondent’s purse.

Respondent was charged in Montgomery County Court with possession of marijuana and possession of cocaine. The trial court denied respondent’s motion to suppress, and she pleaded guilty to the charges, reserving the right to appeal the denial of her suppression motion. The Court of Criminal Appeals of Alabama held that the officers did not have the reasonable suspicion necessary under Terry v. Ohio, 392 U. S. 1 (1968), to justify the investigatory stop of respondent’s car, and that the marijuana and cocaine were fruits of respondent’s unconstitutional detention. The court concluded that respondent’s motion to dismiss should have been granted and reversed her conviction. 550 So. 2d 1074 (1989). The Supreme Court of Alabama denied the State’s petition for writ of certiorari, two justices dissenting. 550 So. 2d 1081 (1989). Because of differing views in the state and federal courts over whether an anonymous tip may furnish reasonable suspicion for a stop, we granted the State’s petition for certiorari, 493 U. S. 1042 (1990). We now reverse.

Adams v. Williams, 407 U. S. 143 (1972), sustained a Terry stop and frisk undertaken on the basis of a tip given in person by a known informant who had provided information in the past. We concluded that, while the unverified tip may have been insufficient to support an arrest or search warrant, the information carried sufficient “indicia of reliability” to justify a forcible stop. 407 U. S., at 147. We did not address the issue of anonymous tips in Adams, except to say that “[t]his is a stronger case than obtains in the case of an anonymous telephone tip,” id., at 146.

Illinois v. Gates, 462 U. S. 213 (1983), dealt with an anonymous tip in the probable-cause context. The Court there abandoned the “two-pronged test” of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969), in favor of a “totality of the circumstances” approach to determining whether an informant’s tip establishes probable cause. Gates made clear, however, that those factors that had been considered critical under Aguilar and Spinelli—an informant’s “veracity,” “reliability,” and “basis of knowledge”—remain “highly relevant in determining the value of his report.” 462 U. S., at 230. These factors are also relevant in the reasonable-suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.

The opinion in Gates recognized that an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity inasmuch as ordinary citizens generally do not provide extensive recitations of the basis of their everyday observations and given that the veracity of persons supplying anonymous tips is “by hypothesis largely unknown, and unknowable.” Id., at 237. This is not to say that an anonymous caller could never provide the reasonable suspicion necessary for a Terry stop. But the tip in Gates was not an exception to the general rule, and the anonymous tip in this case is like the one in Gates: “[It] provides virtually nothing from which one might conclude that [the caller] is either honest or his information reliable; likewise, the [tip] gives absolutely no indication of the basis for the [caller’s] predictions regarding [Vanessa White’s] criminal activities.” 462 U. S., at 227. By requiring “[s]omething more,” as Gates did, ibid., we merely apply what we said in Adams: “Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized,” 407 U. S., at 147. Simply put, a tip such as this one, standing alone, would not “‘warrant a man of reasonable caution in the belief’ that [a stop] was appropriate.” Terry, supra, at 22, quoting Carroll v. United States, 267 U. S. 132, 162 (1925).

As there was in Gates, however, in this case there is more than the tip itself. The tip was not as detailed, and the corroboration was not as complete, as in Gates, but the required degree of suspicion was likewise not as high. We discussed the difference in the two standards last Term in United States v. Sokolow, 490 U. S. 1, 7 (1989):

“The officer [making a Terry stop]. . . must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.”’ [Terry, 392 U. S.,] at 27. The Fourth Amendment requires ‘some minimal level of objective justification’ for making the stop. INS v. Delgado, 466 U. S. 210, 217 (1984). That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means ‘a fair probability that contraband or evidence of a crime will be found,’ [Gates, 462 U. S., at 238], and the level of suspicion required for a Terry stop is obviously less demanding than for probable cause.”

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause. Adams v. Williams, supra, demonstrates as much. We there assumed that the unverified tip from the known informant might not have been reliable enough to establish probable cause, but nevertheless found it sufficiently reliable to justify a Terry stop. 407 U. S., at 147. Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” United States v. Cortez, 449 U. S. 411, 417 (1981), that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable. The Gates Court applied its totality-of-the-circumstances approach in this manner, taking into account the facts known to the officers from personal observation, and giving the anonymous tip the weight it deserved in light of its indicia of reliability as established through independent police work. The same approach applies in the reasonable-suspicion context, the only difference being the level of suspicion that must be established. Contrary to the court below, we conclude that when the officers stopped respondent, the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that respondent was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment.

It is true that not every detail mentioned by the tipster was verified, such as the name of the woman leaving the building or the precise apartment from which she left; but the officers did corroborate that a woman left the 235 building and got into the particular vehicle that was described by the caller. With respect to the time of departure predicted by the informant, Corporal Davis testified that the caller gave a particular time when the woman would be leaving, App. 5, but he did not state what that time was. He did testify that, after the call, he and his partner proceeded to the Lynwood Terrace Apartments to put the 235 building under surveillance, id., at 5-6. Given the fact that the officers proceeded to the indicated address immediately after the call and that respondent emerged not too long thereafter, it appears from the record before us that respondent’s departure from the building was within the timeframe predicted by the caller. As for the caller’s prediction of respondent’s destination, it is true that the officers stopped her just short of Dobey’s Motel and did not know whether she would have pulled in or continued past it. But given that the 4-mile route driven by respondent was the most direct route possible to Dobey’s Motel, 550 So. 2d, at 1075, Tr. of Oral Arg. 24, but nevertheless involved several turns, App. 7, Tr. of Oral Arg. 24, we think respondent’s destination was significantly corroborated.

The Court’s opinion in Gates gave credit to the proposition that because an informant is shown to be right about some things, he is probably right about other facts that he has alleged, including the claim that the object of the tip is engaged in criminal activity. 462 U. S., at 244. Thus, it is not unreasonable to conclude in this case that the independent corroboration by the police of significant aspects of the informer's predictions imparted some degree of reliability to the other allegations made by the caller.

We think it also important that, as in Gates, “the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Id., at 245. The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have “predicted” that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. See ibid. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.

Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car. We therefore reverse the judgment of the Court of Criminal Appeals of Alabama and remand the case for further proceedings not inconsistent with this opinion.

So ordered.

Justice Stevens,

with whom Justice Brennan and Justice Marshall join, dissenting.

Millions of people leave their apartments at about the same time every day carrying an attaché case and heading for a destination known to their neighbors. Usually, however, the neighbors do not know what the briefcase contains. An anonymous neighbor’s prediction about somebody’s time of departure and probable destination is anything but a reliable basis for assuming that the commuter is in possession of an illegal substance—particularly when the person is not even carrying the attaché case described by the tipster.

The record in this case does not tell us how often respondent drove from the Lynwood Terrace Apartments to Dobey’s Motel; for all we know, she may have been a room clerk or telephone operator working the evening shift. It does not tell us whether Officer Davis made any effort to ascertain the informer’s identity, his reason for calling, or the basis of his prediction about respondent’s destination. Indeed, for all that this record tells us, the tipster may well have been another police officer who had a “hunch” that respondent might have cocaine in her attaché case.

Anybody with enough knowledge about a given person to make her the target of a prank, or to harbor a grudge against her, will certainly be able to formulate a tip about her like the one predicting Vanessa White’s excursion. In addition, under the Court’s holding, every citizen is subject to being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed. Fortunately, the vast majority of those in our law enforcement community would not adopt such a practice. But the Fourth Amendment was intended to protect the citizen from the overzealous and unscrupulous officer as well as from those who are conscientious and truthful. This decision makes a mockery of that protection.

I respectfully dissent.