State v. Hartley , 103 N.J. 252 ( 1986 )

The opinion of the Court was delivered by

CLIFFORD, J.

Defendant, Terrence Hartley, was convicted on one count of first-degree robbery, N.J.S.A. 2C:15-1, and two counts of felony murder, N.J.S.A. 2C:ll-3(a)(3). For purposes of sentencing the robbery conviction was merged. On the two murders the court imposed a term of life imprisonment with a parole-ineligibility period of twenty years, and a consecutive thirty-year term with a parole-ineligibility period of fifteen years. The convictions were based on a robbery of the Holst Jewelry Store in Atlantic City that resulted in the death of the store’s owner and the owner’s aunt.

This appeal questions the admissibility, on the State’s case in-chief, of defendant’s two inculpatory statements given during custodial interrogations by separate branches of law enforcement, who were pursuing a “joint” investigation. Defendant had previously been given Miranda warnings, in response to which he had asserted in clear and unequivocal terms his right to remain silent.¹ Some time later he made the statements in question, the first in response to interrogation by federal authorities, who did not give defendant the Miranda warnings anew, and the second to New Jersey authorities after defendant had been reinformed of his Miranda rights. The specific issues are whether the federal authorities “scrupulously honored” defendant’s previously-invoked right to silence, as required by Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975); and, if not, whether the statement to New Jersey authorities is tainted because of its relationship to the “federal” statement.

We hold that before an accused’s previously-asserted right to remain silent may be deemed to have been “scrupulously honored,” law-enforcement authorities must, at a minimum, read-minister the Miranda warnings. In the absence of those renewed warnings any inculpatory statement given in response to police-initiated custodial interrogation after the right to silence has been invoked is inadmissible. In addition, we determine that a police failure scrupulously to honor an accused’s earlier-invoked right to silence amounts to a violation not simply of Miranda’s prophylactic rules but of the accused’s privilege against self-incrimination. Therefore, any statement that a suspect may make after his right to silence has not been scrupulously honored is unconstitutionally compelled as a matter of law. That circumstance in turn requires a close examination of the relationship between that first statement and any subsequent statement.

We conclude that in this case the federal authorities’ failure scrupulously to honor defendant’s announced intention not to make a statement requires the exclusion, on the State’s case, not only of defendant’s confession to agents of the Federal Bureau of Investigation (FBI) but also of defendant’s second statement, made to state and municipal authorities. This result is compelled either (1) because the second statement was obtained through a process that was in fact part of the same illicit procedure that produced the first statement, or (2) because it was the product of an unconstitutional interrogation — and this despite the readministering of Miranda warnings to defendant before the second statement. Finally, we base the above determinations not only on our understanding of the United States Supreme Court precedents in this area but on independent state grounds of decision as well.

I

The facts surrounding the commission of the crimes are uncomplicated. Hartley and two companions, James Hooks and a young woman known only as “Snow,” traveled from New York to Atlantic City for the purpose of robbing the casino at the Resorts International Hotel. The heavy security at the hotel served to discourage that venture, so defendant and his co-felons searched for a more vulnerable target. The nearby Holst Jewelry Store appeared to promise easier pickings. While defendant remained outside as a “lookout,” Hooks and Snow robbed the jewelry store, in the course of which the owner and his aunt were shot and killed. The three culprits then returned to the hotel, took a taxi to the Atlantic City Bus Depot, and boarded a return bus for New York City.

At funeral services for James Hooks, who himself was killed just ten days after the robbery-murders in Atlantic City, an informant identified defendant as a suspect in the Holst Jewelry Store crimes. On the basis of the informant’s tip and a corroborating police investigation, a federal magistrate sitting in the Eastern District of New York issued an arrest warrant for Hartley and a search warrant for his residence. The federal authorities’ involvement arose because of a charge of interstate transportation of the property taken from the jewelry store.

The warrants were executed at Hartley’s apartment in Brooklyn at about 7:30 a.m. on February 5, 1981, by five special agents of the FBI, assisted by members of the Atlantic City Police Department, the Atlantic County Prosecutor’s office, and the New York City Police Department. At the time of the arrest FBI agent Richard Robley read Hartley the Miranda rights and informed him that he was being arrested for “the interstate transportation of stolen property in connection with an armed robbery of the Holst Jewelry Store in Atlantic City, New Jersey, [in] which the owner and his aunt were murdered.” A police search of defendant’s apartment uncovered jewelry that was later identified as merchandise stolen from the Holst Jewelry Store.

After his arrest Hartley was taken to the Brooklyn-Queens office of the FBI. At 9:13 a.m. the authorities placed Hartley in an Interview Room for processing. At 9:16 a.m. he was readvised of his constitutional rights and was handed a federal “Advice of Rights” form, which contained the full panoply of Miranda warnings. Immediately following the statement of those warnings, the form contained the following, under the heading “Waiver of Rights”:

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

This in turn was followed by a line for defendant’s signature. Thus, the only place provided for one to sign the form came after the “waiver” section. Put differently, the only purpose of the signature was not to acknowledge receipt of one’s rights but rather to indicate a waiver of those rights.

According to FBI agent Merle Frieberg, defendant “briefly glanced at” the form, after which Frieberg said,

“Do you understand what is on the form? Do you understand what was just read to you?”

He said, “Yes.” He hesitated and I said, “What seems to be the problem?” He said, “I don’t believe I want to make a statement at this time.” And to which Special Agent Davis said, “Fine. If you don’t want to make a statement at this time, strike that particular item and initial it.” Which he did.

The authorities asked no questions at that time, but proceeded to fingerprint and photograph defendant, commencing at 9:26 a.m.

At 10:43 a.m. agent Frieberg again approached Hartley, who had been returned to the Interview Room, and stated:

Terrence, I am Special Agent Frieberg and I am from Atlantic City, New Jersey and I think you know why I am up here. And I would like you to reconsider and now is the time if you are going to make a statement. Now is the time to do it.

Defendant replied, “What do you want to know?” Frieberg thereupon, without readministering the Miranda warnings, proceeded to ask defendant personal background questions, followed by questions probing the details of the jewelry-store robbery. Defendant responded by giving what amounted to a full confession. The agent had his notes typed into a statement, which Hartley refused to sign.

After being questioned by the FBI agents, Hartley was questioned by a group of four New York and New Jersey officials. Criminal Investigator Margaret Barnett of the Atlantic County Prosecutor’s Office read him his rights. The State asserts that defendant signed a waiver at that time but that the form was misplaced in the Prosecutor’s office. The interrogation was conducted primarily by Detective Dennis Mason of the Atlantic City Police Department. Also present were two New York City police officers. All four were members of the group that had arrived at the defendant’s apartment that morning and had assisted in the search conducted there. Hartley refused to allow his statement to be recorded on tape, and likewise refused to sign a typed description of this interview, as was the case with the federal statement.

The trial court refused to admit into evidence either of the unsigned typewritten statements, but it allowed both the federal and state authorities’ testimony as to the contents of Hartley’s oral statements to them. Defendant appealed his conviction to the Appellate Division, alleging error in the trial court’s failure to have suppressed “statements attributed to the defendant in violation of federal and state constitutions.” The Appellate Division affirmed the conviction, with Judge Gaulkin dissenting. That court determined that defendant’s right to remain silent had not been violated and that therefore his confession was properly admitted. This appeal followed as of right. See R. 2:2-l(a)(2).²

II

The fifth amendment to the United States Constitution provides in part that “[n]o person * * * shall be compelled in any criminal case to be a witness against himself * * US. Const, amend. V. In Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), the Supreme Court held this privilege against self-incrimination applicable to the states, through the fourteenth amendment. Although we have no similar provision in our New Jersey Constitution, the privilege itself “is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence.” In re Martin, 90 N.J. 295, 331 (1982); see also Evid.R. 23, 24, and 25 (bestowing the privilege, setting out its boundaries, and describing exceptions).

When a defendant waives his privilege against self-incrimination, as he surely is entitled to do, the government has the “heavy burden” of demonstrating that such a waiver was made “voluntarily, knowingly, and intelligently.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966); see Tague v. Louisiana, 444 U.S. 469, 471, 100 S.Ct. 652, 653, 62 L.Ed.2d 622, 625 (1980); C.H. Whitebread, Criminal Procedure § 15.05, at 300-01 (1982). However, the question of waiver is an inquiry separate and apart from the first question that engages our attention in this appeal: whether the defendant’s right to remain silent has been properly respected in the first instance. See Jarrell v. Balkcom, 735 F.2d 1242, 1252 n. 11, reh’g denied, 740 F.2d 979 (11th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2331, 85 L.Ed.2d 848, reh’g denied, — US. -, 105 S.Ct. 3547, 87 L.Ed.2d 670 (1985); People v. Grant, 45 N.Y.2d 366, 373, 380 N.E.2d 257, 261, 408 N.Y.S.2d 429, 432 (1978); Stone, The Miranda Doctrine in the Burger Court, 177 Sup.Ct.Rev. 99 (1977) (hereinafter The Miranda Doctrine).

In Miranda, the Court made clear that the requirement that the police “scrupulously honor” the suspect’s assertion of his right to remain silent is independent of the requirement that any waiver be knowing, intelligent, and voluntary. See Michigan v. Mosley, supra, 423 U.S. at 102-03, 96 S.Ct. at 325-26, 46 L.Ed.2d at 320-21; The Miranda Doctrine, supra, 177 Sup.Ct. Rev. at 133. Care must be taken therefore that there be no blurring of the separate lines of analysis that are followed in respect of the “scrupulously honor” requirement on the one hand and the waiver issue on the other. The distinction between the two concepts stands out in bold relief in this case: given our holding that the failure scrupulously to honor a previously-invoked right to silence renders unconstitutionally compelled any resultant incriminating statement made in response to custodial interrogation, there can be no question of waiver. In the instant context the waiver issue could not arise until after the exercise of the asserted right had been scrupulously honored by, at a minimum, the giving of fresh Miranda warnings. The requirement that an asserted right be scrupulously honored has been carefully guarded in this state in order to ensure that full opportunity to exercise the privilege is permitted. State v. Kennedy, 97 N.J. 278, 288 (1984). Because in this case the right was not honored and defendant’s “federal” statement must therefore be deemed to have been unconstitutionally compelled, there is simply no waiver issue posed on the appeal. See United States ex rel. Sanders v. Rowe, 460 F.Supp. 1128, 1135 (N.D.Ill.1978) (“No waiver is possible if the suspect’s original request for counsel was not ‘scrupulously honored.’ ”).

Justice Stein’s dissent suggests that the Court engages in an “unduly technical” application of Mosley by refusing to test Hartley’s response by waiver standards. Post at 316. Justice Stein would apparently have us abandon this federal constitutional approach and adopt instead a waiver analysis proposed by Justice Powell’s concurring opinion in Oregon v. Bradshaw, 462 US. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983). That Justice Powell has not succeeded in changing the law here is readily apparent from the Court’s recent reaffirmation, in the “right to counsel” context, of the “two-step” approach to statements obtained after assertion of a constitutional right. Michigan v. Jackson, 475 U.S. -,-, 106 S.Ct. 1404, 1410, 89 L.Ed.2d 631, 642 (1986).

Ill

The privilege against self-incrimination is one of several important rights that the Supreme Court sought to protect in Miranda by establishing procedural prerequisites to admissibility of any inculpatory statement produced by custodial interrogation. Whereas prior to Miranda the admissibility of an accused’s in-custody statements turned on whether those statements were “voluntary” within the meaning of the due-process clause, Miranda created an irrebuttable presumption of compulsion as to such statements given in the absence of the warnings mandated by that case. E.g., Oregon v. Elstad, 470 U.S. 298,---, 105 S.Ct. 1285, 1290-93, 84 L.Ed.2d 222, 229-31 (1985), of which more in parts IV and V of this opinion. Consequently, under Miranda, statements produced by unwarned in-custody interrogation are inadmissible on the State’s case in-chief, id. at-, 105 S.Ct. at 1292, 84 L.Ed.2d at 231.

The “compulsion” that is at the heart of the Miranda doctrine does not assume the “rubber-hose” scenario conjured up by a dictionary definition of “coercion” or “involuntariness.” Rather, the premise behind the decision is “that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains 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.” Miranda, supra, 384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed. 2d at 719. The compulsion contemplated by Miranda, then, is “inherent” or “presumed,” rather than “actual.” But cf. Kamisar, Heavy Blow Delivered by Miranda Decisions, The National Law Journal, Sept. 2, 1985, at S-22 (“[TJhere is no distinction, for constitutional purposes, between inherent compulsion and actual compulsion.”). Our own recognition of the nature of this compulsion and of its significant ramifications is reflected in our decisions requiring that a request, “however ambiguous,” to terminate questioning or to have counsel present must be diligently honored. State v. Kennedy, supra, 97 N.J. at 288.

In Michigan v. Mosley, supra, 423 U.S. at 104, 96 S.Ct. at 326, 46 L.Ed.2d at 321, the Supreme Court again emphasized the “coercive pressures” that are inherent in a custodial setting. The Court focused on this key passage from Miranda'.

Once warnings have been given, the subsequent procedure is clear. 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; and a statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. [384 U.S. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723 (emphasis added).]

The specific problem confronting the Mosley Court was that although Miranda appears to contain a clear requirement that “the interrogation must cease” when the suspect asserts his right to remain silent, the opinion does not discuss under what circumstances, if any, the authorities may resume interrogation.

Prior to Mosley, the case law on this question was “in a state of disarray.” The Miranda Doctrine, supra, 177 Sup. Ct.Rev. at 130. The courts were sharply divided in their approach to the issue.

Most pre-Mosley courts * * * seem to have adopted an ad hoc approach to the problem, implicitly undertaking a two-pronged inquiry. First, was the subsequent attempt to question merely an impermissible continuation of the prior attempt, or was it a genuinely independent event? * * * Second, if the subsequent attempt to interrogate was in fact an independent event, was the suspect’s eventual waiver of his rights knowing, intelligent, and voluntary within the meaning of Miranda? * * * As might be expected, because of the absence of any clear standards, the results under this approach were unpredictable and often inconsistent. Finally, some courts modified this approach by employing an especially high standard of knowing, intelligent, and voluntary waiver in the face of renewed attempts to question. [Id. at 130-31 (footnotes omitted).]

It was the confusion demonstrated in the foregoing passage that the Court sought to resolve in Mosley.

The defendant in Mosley, arrested on suspicion of robbery, was carefully informed of his constitutional rights when the police took him into custody. Mosley stated that he understood his rights and that he did not wish to speak about the robberies. Immediately, the police terminated the questioning. The defendant was questioned two hours later by a different police officer at another location concerning an unrelated homicide. At the outset of this second interrogation the defendant was again warned of his right to remain silent, 423 U.S. at 105, 96 S.Ct. at 327, 46 L.Ed.2d at 322, after which he made incriminating statements. The question was whether those statements could be used against defendant at his murder trial.

Justice Stewart’s opinion for the Court recognized that resolution of the issue required the Court to look beyond the key passage in Miranda, quoted supra at 263, because reliance on a strict, literal interpretation of “the interrogation must cease” would take one to “absurd and unintended results.” 423 U.S. at 102, 96 S.Ct. at 325, 46 L.Ed.2d at 320. The Court said:

To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. [Jet]

The Court therefore eschewed a “per se proscription of indefinite duration upon any further questioning by any police officer on any subject, once the person in custody has indicated a desire to remain silent,” id. at 102-03, 96 S.Ct. at 326, 46 L.Ed. 2d at 321, and held instead that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored’.” Id. In concluding that Mosley’s right to terminate questioning had been “scrupulously honored,” and that the incriminating statements elicited from the second interrogation could be used against him at trial, the Court stated:

This is not a case * * * where the police failed to honor a decision of a person to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation. [Id. at 105-06, 96 S.Ct. at 327, 46 L.Ed.2d at 322.]

Mosley has come in for some harsh treatment at the hands of the commentators. See, e.g., Professor Stone’s comments in The Miranda Doctrine, supra, 177 Sup.Ct.Rev. at 129-37, in a section entitled Michigan v. Mosley: If at First You Don’t Succeed * * * (“[T]he requirement that an individual’s rights be ‘scrupulously honored’ surely has a nice ring to it, but, as formulated and applied in Mosley, is devoid of any clear substantive content,” id. at 134; and, “Mosley offers only ambiguous protection to the accused and virtually no guidance to the police or the courts who must live with the rule.” Id. at 137); Note, The Declining Miranda Doctrine: The Supreme Court’s Development of Miranda Issues, 36 Wash. & Lee L.Rev. 259, 268 (1979) (“[T]he Court’s ‘scrupulously honored’ test provides no concrete guidelines for lower courts to resolve the issue of precisely when interrogation may be resumed.”); Note, Michigan v. Mosley: A New Constitutional Procedure, 54 N.C.L. Rev. 695, 696 (1976) (Mosley’s “scrupulously honor” requirement is defined “so vaguely that it offers little guidance to lower courts or the police.”). Whatever basis there may be for these criticisms, Mosley leaves no room for doubt in at least this respect: the decision of a suspect to remain silent is “scrupulously honored” when (1) the police do not approach him for two hours, (2) he receives fresh Miranda warnings, (3) he is questioned by a different officer, and (4) he is questioned in respect of an offense different from the one for which he is in custody.

A number of courts have required the suppression of incriminating statements in cases in which one or more of the factors that supported admissibility in Mosley were absent. See, e.g., Robinson v. Percy, 738 F.2d 214, 220 (7th Cir.1984) (under Mosley, cessation of questioning for a certain period of time is required before interrogation can be renewed); People v. Young, 115 Ill.App.3d 455, 71 Ill.Dec. 259, 450 N.E.2d 947 (1983) (recess and fresh Miranda warnings are a minimum prerequisite to reinterrogation); Wilson v. United States, 444 A.2d 25, 31 (D.C.1982) (all Mosley factors are required to validate reinterrogation); United States v. Maddox, 413 F.Supp. 60 (W.D.Okla.1976) (reinterrogation on same offense is precluded by Mosley); cf. People v. Buxton, 44 N.Y.2d 33, 374 N.E.2d 384, 403 N.Y.S.2d 487 (1978) (later non-coercive reinterrogation permitted after reiteration of requisite warnings). Still other courts have applied the Mosley factors in a more flexible fashion, focusing largely on the level of overall coerciveness surrounding the particular interrogation at issue. See, e.g., United States v. Terry, 702 F.2d 299 (2d Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304, and 464 U.S. 992, 104 S.Ct. 482, 78 L.Ed.2d 680 (1983) (statement given as the result of a non-coercive reinterrogation on same subject after forty minutes and fresh Miranda warnings held admissible); United States v. Smith, 608 F.2d 1011 (4th Cir.1979) (statement made after a brief cessation of questioning and in the absence of formal fresh Miranda warnings admissible as non-coercively obtained).

The commentators too are in disagreement as to which of the Mosley factors is indispensable to fulfillment of the “scrupulously honor” requirement. Professor Kamisar reports that Professor Stone, author of The Miranda Doctrine, supra, 177 Sup. Ct.Rev. 99, sees as “critical” to the Mosley result the fact that the second interrogation was restricted to a separate, “unrelated” crime, whereas Kamisar lists three elements as “the minimum requirementV for renewing questioning when a suspect indicates that he wishes to remain silent: “(1) the original interrogation is promptly terminated; (2) the questioning is resumed only after ‘the passage of a significant period of time’ (presumably the passage of at least an hour or two); (3) the suspect is given another set of Miranda warnings at the outset of the interrogation * * Kamisar, “The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away,” 5 The Supreme Court: Trends and Developments 1982-83 153, 155 (1984).

We need go no further today, in respect of Mosley’s impact on this case, than declare as indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect the furnishing of fresh Miranda warnings. Unless the police follow this “bright-line,” inflexible, minimum requirement, a defendant’s statement made in the above-stated circumstances cannot be admitted into evidence as part of the prosecution’s case in-chief. See also State v. McCloskey, 90 N.J. 18, 30 n. 3 (1982) (“prosecution cannot use any statements made during [the defendant’s] second interrogation, before which new Miranda warnings were not given”.).

Justice Stein’s dissent suggests that a reminder or reacknowledgement of an accused’s previously-asserted right to silence is as effective a means of satisfying Mosley’s “scrupulously honor” requirement as is our bright-line rewarning requirement. Post at 318-319. The weakness of such an approach and the merits of a bright-line rule are highlighted by this very case. While the Court views Frieberg’s statement as clearly coercive (see discussion infra at 267-271, Justice Stein views the same statement as a non-coercive request to reconsider a previous invocation of the right to silence, fully consistent with a scrupulous honoring of that right. A bright-line rule will help avoid this confusion and conflict in future cases, at least on the question of the minimum requirement for “scrupulously honoring.” •

Although the Supreme Court specifically avoided, in Mosley, the adoption of a “per se” test for determining when a suspect’s previously-invoked right to silence had been “scrupulously honored,” we nevertheless are convinced that our establishment of a “bright-line” minimum requirement of renewed warnings for determining when that right has not been scrupulously honored not only is sound as a matter of New Jersey common law but is also consistent with the spirit of the Supreme Court’s decisions and hence with the federal law as we understand it.

Moreover, even absent the “bright-line” rule that we adopt today — namely, a previously-invoked right to silence is not scrupulously honored in the absence of, at the least, fresh Miranda warnings — the circumstances surrounding the taking of the first statement by FBI agents were such that it is highly unlikely that that statement could have been admitted under any standard, including the “totality of the circumstances” test used by some courts. See supra at 266. Were that test to guide our decision, we would narrow our focus to the conduct of agent Frieberg, for it is he who overcame defendant’s previously-expressed refusal to speak to the FBI representatives. With all due respect to Justice Stein’s thoughtful dissent, we are unpersuaded by its characterization of Frieberg’s statement as no more than a reacknowledgement to Hartley of “the continued availability” of his right to remain silent. Post at 318. In no way did Frieberg refer even inferentially to any of defendant’s rights. His remarks amounted to nothing less than a pressure-laden expression of his desire to get defendant to talk. It did not even purport to be a request, inasmuch as it was couched not in the form of a question or even an entreaty, but rather in the form of the agent’s advice to defendant — “I would like you to reconsider and now is the time if you are going to make a statement. Now is the time to do it.” (Emphasis added.)

As important as the events following Frieberg’s approach to Hartley, after defendant had invoked his right to silence, is the sense of urgency and pressure that attended those events. At 10:43 a.m., when the federal interrogation commenced, the federal authorities were “waiting for a call from the Eastern District pertaining to [defendant’s] arraignment.” It was in that context that Frieberg told Hartley that “now is the time” to make a statement. And Frieberg was aware, as he testified, that

the federal law * * * dealing with speedy arraignments [is] very speedy, particularly in the Eastern District of New York. In my limited experience with the Eastern District of New York, the burden on the government is tremendous in terms of moving the process along. The Brooklyn Office particularly is extremely aware of that situation.

Q You received instructions from your superior to get the defendant transported to this arraignment without delay?

A Without delay.

Q Under the federal law, or at least as far as you know, what is the sanction imposed for failing to arraign a defendant within the appropriate time period? A You lose the case.

Q A dismissal?

A Dismissal.³

The federal people apparently communicated to the New Jersey authorities this same sense of the need to rush, for as Atlantic City Detective Mason testified, he did not conduct his interrogation in question-and-answer form because the FBI agents told him that “they had to take [defendant] away and I only had a limited time to get a statement from him.” According to Sergeant Toulon of the New York City Police Department, who was in the room during Mason’s interrogation of Hartley, the interview was “rather quick. * * * We were pressured for time. * * * Sir, we only had, I would say, approximately about five minutes * * * [b]ecause we were being pressed * * *.” According to Toulon, before the New Jersey authorities even started their interrogation, “[w]e were informed that the Eastern District Court had called, that the federal office — that agents requested that they dispatch the defendant to their court immediately.”

When agent Frieberg’s twice-imparted “now is the time” advice is viewed in the context of the foregoing, it is apparent that the “time” to which he made reference surely could not have been a “good” time or a “right” time for Hartley, although that is ostensibly the sense of the statement. Rather, it was the “time” that was swiftly running out on Frieberg before the fast-approaching arraignment could abruptly interrupt this phase of the investigation and itself trigger an additional sixth-amendment right to counsel. See, e.g., Moore v. Illinois, 434 US. 220, 226-27, 98 S.Ct. 458, 463-64, 54 L.Ed.2d 424, 432-33 (1977); Fourteenth Annual Review of Criminal Procedure: United States Supreme Court and Courts of Appeals 1983-1984, 73 Geo.L.J. 253, 375-76 (1984).

The record speaks loudly, and speaks in the form of testimony of the State’s own witnesses, of the authorities’ impatience to nail down the joint investigation with defendant’s confession — an understandable, even laudable, impulse, but one whose exercise in the context of this case was not consistent with scrupulous observance of defendant’s rights. So threatening, or misleading, was the burden of Frieberg’s counsel to Hartley (abandon your determination to remain silent and, now or never, speak), that the non-observance — to say nothing of a non-scrupulous observance — of defendant’s previously-asserted right to silence is a most likely, if not inescapable, conclusion.

IV

Having determined that Hartley’s previously-asserted right to silence was not scrupulously honored, by virtue of both the bright-line rule and the factual complex, we turn to the important question of what consequences flow from that circumstance. The answer turns in part on how we characterize the failure scrupulously to honor defendant’s express resolve not to make a statement: is it to be viewed as a violation merely of Miranda’s prophylactic rules, or is it rather a clear violation of the right against compulsory self-incrimination as such, and hence a “constitutional” violation? As previously announced, supra at 256-257, we conclude that the failure scrupulously to honor an accused’s previously-asserted right to silence amounts to a constitutional violation and a violation of the state common-law privilege against self-incrimination, and any inculpatory statement made in the absence of fresh warnings must be deemed to have been unconstitutionally and illegally obtained as a matter of law.

Contrary to Justice Handler’s assertion, post at 294, we do not blur “the distinctive lines between constitutional and non-constitutional violations.” We recognize those lines and grasp full well the distinction drawn by Justice Rehnquist for the Court in Michigan v. Tucker, 417 U.S. 483, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), between on the one hand police conduct that directly infringes on an accused’s right against compulsory self-incrimination, and on the other a violation only of the “prophylactic rules developed to protect that right,” id. at 439, 94 S. Ct. at 2361, 41 L.Ed.2d at 190. The Supreme Court has made it abundantly clear that under its current formulation of the Miranda doctrine, a failure to administer Miranda warnings does not itself “breed the same irremediable consequences as police infringement of the Fifth Amendment itself.” Oregon v. Elstad, supra, 470 U.S. at-, 105 S.Ct. at 1293, 84 L.Ed.2d at 232. See infra at 276.

We perceive a qualitative difference between a failure to administer Miranda warnings in the first place, and a failure to honor, after they have been asserted, the constitutional rights that those warnings are designed to secure. In the former instance the police conduct, standing alone and unaccompanied by any oppressive acts of coercion or intimidation, does not inevitably demonstrate an undermining of the in-custody suspect’s ability to exercise his free will. Put differently, the statement produced by an unwarned in-custody interrogation may be voluntary despite the absence of Miranda warnings. See Michigan v. Tucker, supra, 417 U.S. at 445, 94 S.Ct. at 2364, 41 L.Ed.2d at 193. Although the unwarned confession must be suppressed under the force of Miranda’s irrebuttable presumption of compulsion, the violation of Miranda’s dictates is not in that instance of constitutional dimension. Id. at 445-46, 94 S.Ct. at 2364-65, 41 L.Ed.2d at 193-94.

On the other hand, once the suspect has received his Miranda warnings and, as did Hartley, he determines to exercise his fifth-amendment privilege to remain silent, a different set of considerations comes into play. Miranda itself points to this conclusion through its explication of the purpose of prophylactic rules:

[Without proper safeguards the process of incustody interrogation of persons suspected or accused of crime contains 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. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored. [384 U.S. at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719.]

The plain implication of the foregoing passage is that the suspect must be afforded unimpeded access to the Constitution. As Justice Handler wrote for a unanimous Court in State v. Kennedy, supra, “the pivotal consideration in making the constitutional inquiry is whether, upon being advised of his rights, defendant indicated that he wanted the assistance of counsel with respect to the particular charge in question, and whether he wanted to have counsel available or present before any further interrogation.” 97 N.J. at 287 (emphasis added). Therefore, if after a suspect avails himself of the Constitution’s protections the police violate a right that has been invoked, that violation, by definition, is of constitutional magnitude. Again, Miranda itself could scarcely be clearer in that regard, when it instructs us that when an in-custody suspect announces his wish to remain silent, he has shown at that point that

he intends to exercise his Fifth Amendment privilege; and a statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. [384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 723.]

See also Wainwright v. Greenfield, 474 U.S. -, -, 106 S.Ct. 634, 639, 88 L.Ed.2d 623, 631 (1986) (invocation of the right to silence after Miranda warnings is of “constitutional dimension”).

Our confidence that we have read Miranda correctly in the foregoing respects is borne out by the Supreme Court’s treatment of Miranda’s progeny, see Michigan v. Jackson, supra, 475 U.S. -, 106 S.Ct. 1404, 89 L.Ed.2d 631; Oregon v. Elstad, supra, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222; Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, reh’g denied, 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981).

In Edwards v. Arizona, supra, the Supreme Court held that an in-custody accused who has sought refuge in his constitutionally-guaranteed right to deal with the police only through counsel cannot be interrogated by the authorities until counsel has been afforded him unless the accused himself initiates further conversations with the police. 451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386-87. Any statement obtained in violation of that proscription is inadmissible by virtue of the fifth and fourteenth amendments’ prohibition against compelled self-incrimination, id. at 481, 101 S.Ct. at 1883, 68 L.Ed.2d at 384 — plainly a constitutional violation (not a mere stumbling over Miranda’s “prophylactic rules,” as Justice Handler’s bracketed invention of Edwards’ text, post at 292 n. 1 would have it), and this in the face of the trial court’s specific conclusion that the confession at issue in that case was “voluntary.” Id. at 483, 101 S.Ct. at 1884, 68 L.Ed.2d at 385.

More recently, the Supreme Court again made the distinction to which we advert, this time quite explicitly, in Oregon v. Elstad, supra, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222. That decision takes on considerable significance in the context of this case, wherefore it warrants extended discussion, both here and in part V.

In Elstad the defendant made a statement to a police officer who had gone to defendant’s home for the purpose of arresting him. The officer, without giving Miranda warnings, told Elstad that he thought Elstad was involved in a certain robbery. Elstad stated, “Yes, I was there.” The defendant was transported to the Sheriff’s headquarters, where full Miranda warnings were given, and he then gave a full confession. The Oregon Court of Appeals found that the coercive impact of the unwarned statement was not shown to have dissipated, and so the subsequent confession was inadmissible because it was the “fruit of the poisonous tree.” State v. Elstad, 61 Or.App. 673, 677, 658 P.2d 552, 554, review denied, 295 Or. 617, 670 P.2d 1033 (1983), rev’d sub nom. Oregon v. Elstad, supra, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222.

The Supreme Court ruled that the Oregon court had applied the wrong standard. The Court observed that the “fruit of the poisonous tree" test, discussed infra at 282, is applicable only when there has been a constitutional violation, 470 U.S. at-, 105 S.Ct. at 1291, 84 L.EdM at 230, and that a violation of Miranda’s procedural rules does not rise to the level of a constitutional violation. “The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced * * Id. at -, 105 S.Ct. at 1294, 84 L.Ed.2d at 233. Miranda established a prophylactic rule. Failure to warn as required by Miranda creates a presumption of compulsion, which is irrebuttable only as regards use of the unwarned statement in the prosecutor’s case in-chief. (For example, an unwarned statement may be used to impeach. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971).) The Miranda exclusionary rule “may be triggered even in the absence of a Fifth Amendment violation.” Elstad, supra, 470 U.S. at-, 105 S.Ct. at 1292, 84 L.Ed.2d at 230. Although the Court stated that a Miranda violation creates a presumption of compulsion, id. at-, 105 S.Ct. at 1292, 84 L.Ed.2d at 231, it concluded that it was “beyond dispute” that Elstad’s earlier remark was “voluntary, within the meaning of the Fifth Amendment.” Id. at-, 105 S.Ct. at 1296, 84 L.Ed.2d at 236. “Neither the environment nor the manner of either ‘interrogation’ was coercive. The initial conversation took place at midday, in the living room area of respondent’s own home, with his mother in the kitchen area, a few steps away.” Id.

The Court repeatedly distinguished between, on the one hand, a violation of Miranda’s prophylactic, procedural requirements and, on the other hand, constitutional violations. It observed that the Oregon Court of Appeals had mistakenly assumed “that a failure to give Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right.” Id. at ——, 105 S.Ct. at 1290, 84 L.Ed.2d at 229. In comparing Elstad to Michigan v. Tucker, supra, 417 U.S. 433, 94 S.Ct. 2357, 43 L.Ed.2d 182, Justice O’Connor pointed out that “the breach of the Miranda procedures [in both cases] involved no actual compulsion.” 470 U.S. at-, 105 S.Ct. at 1293, 84 L.Ed.2d at 231. The Court emphasized that mere errors “in administering the prophylactic Miranda procedures * * * should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself,” id. at-, 105 S.Ct. at 1293, 84 L.Ed.2d at 232, and that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” 470 U.S. at-, 105 S.Ct. at 1298, 84 L.Ed.2d at 238. It is of surpassing importance for today’s purposes, however, to recognize that in reaching that conclusion, the Court took pains to distinguish Elstad from cases “concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation.” Id. at-n. 3, 105 S. Ct. at 1296 n. 3, 84 L.Ed.2d at 234-35 n. 3; see also id. at-n. 28,105 S.Ct. at 1313, 84 L.Ed.2d at 256 n. 28 (Brennan, J., dissenting) (elaborating on the same point). Presumably Justice O’Connor had in mind cases similar to the one before us, such as United States ex rel. Sanders v. Rowe, supra, 460 F.Supp. at 1137 (failure scrupulously to honor defendant’s previously invoked right to counsel was “constitutional error;” subsequent confessions given after Miranda warnings inadmissible); State v. Ayers, Me., 433 A.2d 356, 362 (obtaining confession after suspect has asserted right to cut off questioning amounts to “violation of [suspect’s] constitutional rights.”).

Finally, Michigan v. Jackson, supra, is important not only for its reaffirmation of the constitutional basis of the Edwards holding, 475 U.S. at-, 106 S.Ct. at 1405, 89 L.Ed.2d at 636, but also for its own constitutionally-based holding. In Jackson, the authorities’ disregard of defendants’ assertions at arraignment of their right to counsel led the Court to hold that the “postarraignment confessions were improperly obtained — and the Sixth Amendment violated * * Id. at-, 106 S.Ct. at 1406, 89 L.Ed. 2d at 636. There is therefore no basis whatsoever for Justice Handler's assertion, post at 292 n. 1, that the offensive action condemned in Jackson “arguabl[y] * * * does not rise to the level of a constitutional violation but simply violates the ancillary principles of Miranda.”

Although both Edwards and Jackson are “right to counsel” rather than “right to silence” cases in the mold of Mosley and the case before us, we are satisfied that the principles of the cases are readily transferable — that is, a failure scrupulously to honor an asserted right to silence is as much a constitutional violation as is a failure to honor a previously-invoked right to counsel. True, there is a difference in the tests to determine when the asserted right has been honored — under Edwards and Jackson, once the accused requests counsel, there can be no interrogation, absent initiation by the accused, in the absence of counsel, whereas under our holding today, and our reading of Mosley, the minimum requirement for the scrupulous honoring of a suspect’s previously-invoked right to silence is the readministering of the Miranda warnings. But once it has been determined that there has been a failure to honor the previously-invoked right in either instance, the resultant violation cannot be anything other than a constitutional infringement. See State v. Blevins, 108 Id. 239, 243, 697 P.2d 1253, 1257 (Ct.App. 1985). (“[B]oth [.Edwards and Mosley ] strive to ensure that the suspect who invoked his rights will be free from coercive attempts to change his mind. The analytical frameworks vary, not because the value or importance of the rights is different, but because the realities of implementing them are not the same.” (Citation omitted)). And needless to say — needless, that is, except for Justice Stein’s pronouncement to the contrary, post at 317 — an assessment of defendant’s waiver following non-observance of his previously-asserted constitutional right is no more appropriate in the right-to-silence context than in a right-to-counsel case. In both instances the validity of the waiver would depend on whether the asserted right had been scrupulously honored; in neither case would a waiver analysis reveal whether the “bright line” rule had been observed. A waiver analysis would no more test a police officer’s compliance with the Mosley requirement of rewarning than with the Edwards requirement that renewed communication be initiated by the accused.

Numerous other courts applying Mosley have come to the same conclusion that we reach today, namely, that the failure to honor a defendant’s asserted privilege to remain silent violates his fifth-amendment rights. See United States v. Suggs, 755 F.2d 1538, 1541 (11th Cir.1985) (statement inadmissible as violative of fifth and sixth amendments if made in response to any kind of interrogation after defendant stated his desire to remain silent); Anderson v. Smith, 751 F.2d 96, 102 (2d Cir. 1984) (asking defendant why he was refusing to talk violated his right to remain silent and court was required to determine whether admission of statement was harmless constitutional error); Robinson v. Percy, supra, 738 F.2d at 220 (questions after invocation of right to remain silent violated defendant’s fifth-amendment rights); Toliver v. Gathright, 501 F.Supp. 148, 150 (E.D.Va.1980) (admission into evidence of confession obtained in response to interrogation after defendant invoked right to silence violated his constitutional privilege against self-incrimination).

In view of the foregoing persuasive authority we are convinced that the failure to honor a previously-invoked right to silence smacks so inherently of compulsion that any statement following that failure is involuntary by definition. So here, FBI agent Frieberg’s failure to readminister Miranda warnings was a violation of the obligation scrupulously to honor Hartley’s asserted right to silence, and therefore amounted to a violation of defendant’s fifth-amendment and state common-law right not to be compelled to be a witness against himself.

V

To recapitulate our holdings thus far: (1) failure to readminister Miranda warnings before interrogating an accused who has previously invoked the right to silence will invariably result in a finding that the right has not been “scrupulously honored”; and (2) any statement thus obtained is unconstitutionally compelled, and hence inadmissible, as having been obtained in violation of the fifth amendment and of the state common-law right against self-incrimination. We turn now to the issue of the admissibility of the second statement, the one given to state authorities after the “federal” statement — here declared to have been compelled — but this one, unlike the first, preceded by fresh Miranda warnings. We conclude that this second statement too was inadmissible.

There are two approaches to the problem. The first reaches the conclusion that the process that produced the second statement was so inextricably entwined with the first interrogation procedure as to be part of that same procedure. The second treats the interrogations as separate.

As we have indicated, supra at 259-260, following the FBI interrogation Hartley was questioned by Atlantic City Detective Mason after defendant was given fresh Miranda warnings by Atlantic County Criminal Investigator Barnett. Two New York City police officers, Detective Carlos Toulon and Sergeant Lyle Foster, were likewise present (Toulon “distinctly recalled]” that FBI agent Rodney Davis was also in the room). Barnett, Mason, Toulon, and Foster had arrived with the FBI agents at defendant’s apartment that morning and had participated in the search of the premises. The “state” interrogation took place in the same room in which Hartley had just undergone questioning by the same FBI agents who had executed the warrants at defendant’s apartment.

Although the State treats the two interviews as separate and distinct, it is apparent that they comprise a single continuing event, inasmuch as to a considerable extent they overlapped. The FBI interview log shows that the federal authorities’ interview ended at 12:57 p.m., after which defendant underwent additional fingerprinting, described by agent Frieberg as “a rather lengthy process due to the fact that this was a joint investigation.” At 1:17 p.m. defendant was transported to his arraignment. Frieberg did not witness the unsigned FBI statement, but two other agents signed it as witnesses at 1:17 p.m. Atlantic City Detective Mason’s typed version of the “second” interview sets forth the time as “1:10 P.M.” at the top of the first page. According to this statement, the interview was interrupted by FBI agent Robley, who stated that Hartley had to leave for arraignment, and the interview was thereupon concluded at 1:33 p.m. Whether the FBI’s typewritten statement was presented while defendant was undergoing the second interrogation is not certain from the record. It is obvious, though, that at the very least the second interview followed so closely on the heels of the first as to be part and parcel of it, and hence to be burdened with the same constitutional infirmities. See Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954); cf. People v. Washington, 127 Misc.2d 451, 486 N.Y.S.2d 660 (Sup.Ct.1985) (dictum to the same effect).

In Westover, decided with Miranda, the defendant was interrogated by local police officers while in custody for over fourteen hours. FBI agents then advised Westover of his rights and began interrogating him about a different crime. The Supreme Court held that the later warning was insufficient to protect Westover’s privilege against self-incrimination. The Court said:

Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning.

********

We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogations in the same police station — in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. [384 U.S. at 496-97, 86 S.Ct. at 1639, 16 L.Ed.2d at 736 (emphasis added).]

But for the fact that Westover was held for fourteen hours and Hartley for five or so hours, and the Westover case deals with the problem of unwarned statements rather than a failure to honor the invocation of the right to silence, the cases have strikingly similar fact patterns.

In Leyra v. Denno, supra, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948, the defendant made two confessions immediately after confessing to a psychiatrist under coercive conditions. The Supreme Court held that all the confessions were inadmissible because the relation of the confessions was so close that one must say the facts of one controlled the character of the other; they were all parts of one continuous process. In a recent New York case the same principle was espoused. “An otherwise admissible statement may be suppressed if it constitutes part of a continuous interrogation initiated by improper questioning or other wrongful acts or omissions by law enforcement officers.” People v. Washington, supra, 127 Misc.2d 451, 486 N.Y.S.2d 660 (no continuous interrogation found when three hours passed after defendant confessed while in an intoxicated condition and defendant had slept in the interim between confessions). As we have seen, the federal-state interrogations in the case before us were likewise continuous.

But even if we treat the interrogation processes as separate and distinct, the result remains that the second statement is inadmissible. Under this approach the admissibility of the “state” confession depends in the first instance on how the first, or “federal,” statement is characterized. If, as we have determined to be the case, the obtaining of the FBI statement amounted to a constitutional violation and a deprivation of the state common-law right against self-incrimination, thus rendering it unconstitutionally compelled and, under state law, illegally obtained, and hence inadmissible, any “separately-obtained” second statement must be approached with an eye to determining whether it was the product of a constitutional violation, sometimes known as the “fruit of the poisonous tree” doctrine. See Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Barry, 86 N.J. 80, 87, cert. denied, 454 U.S. 1017, 102 S.Ct. 553, 70 L.Ed.2d 415 (1981); State v. Elmore, 205 N.J.Super. 373 (App.Div.1985). The second confession would be the “fruit” of the first if, after being warned, Hartley gave the second statement because of a feeling that “the cat is already out of the bag”:

Of course, after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. [United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654, 1660 (1947).]

See also Darwin v. Connecticut, 391 U.S. 346, 350, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630, 634 (1968) (Harlan, J., concurring) (“A principal reason why a suspect might make a second or third confession is simply that, having already confessed once or twice, he might think he has little to lose by repetition.”).

The Supreme Court addressed these related doctrines in Oregon v. Elstad, supra, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222. Because there was no actual infringement of the suspect’s constitutional rights in Elstad, any more than there had been in Tucker, the case was not controlled by Wong Sun’s doctrine that the fruits of a constitutional violation must be suppressed. 470 U.S. at-, 105 S.Ct. at 1292, 84 L.Ed.2d at 231.

As now becomes obvious, the difference between Elstad and the case before us takes on critical importance. In Elstad the failure to have furnished the accused with his Miranda warnings resulted in exclusion of only his unwarned statement. Because that statement was indisputably voluntary, a subsequent confession was untainted. There having been no constitutional violation in connection with the obtaining of the first statement, the second statement could not be perceived as the fruit of a constitutional violation, and it was therefore admissible. In contrast, we have held, following Mosley, that the FBI’s failure scrupulously to honor Hartley’s previously-invoked right to silence was a violation of constitutional magnitude, and the federal statement is deemed to have been unconstitutionally and illegally (under state law) compelled. As Elstad now makes clear, that circumstance triggers the “fruit of the constitutional violation” doctrine. See, e.g., United States v. Wauneka, 770 F.2d 1434 (9th Cir.1985) (discussing Elstad); State v. Madruga-Jiminez, 485 So.2d 462, 465-66 (Fla.Dist.Ct.App.1986).

Pursuant to that doctrine generally, the admissibility of the second or “state” confession would be determined by whether the prosecution could establish either that the “state” statement was not the product of the first or “federal” statement, or that the “taint” of the first statement was attenuated. See State v. Barry, supra, 86 N.J. at 87; Brown v. Illinois, supra, 422 U.S. at 604, 95 S.Ct. at 2262, 45 L.Ed.2d at 427; United States ex rel. Sanders v. Rowe, supra, 460 F.Supp. 1128, 1137. Factors relevant to this determination include the time between confessions, any intervening circumstances, whether there was a change in place, whether defendant received an adequate warning of his rights, whether the defendant initiated the second confession, the effect of his having previously made a confession, and the “purpose and flagrancy of police misconduct.” Brown v. Illinois, supra, 422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427; Robinson v. Percy, supra, 738 F.2d at 221 (citing Holleman v. Duckworth, 700 F.2d 391, 396 (7th Cir.), cert. denied, 464 U.S. 834, 104 S.Ct. 116, 78 L.Ed. 2d 116 (1983)); United States v. Wauneka, supra, 770 F.2d 1434.

The foregoing are ordinarily viewed as questions of fact, to be determined by a trial court after a hearing. And ordinarily a remand for the purpose of conducting such a hearing and making findings of fact and conclusions of law would be in order. In this case, however, that step is unnecessary, for we are satisfied, on the basis of our careful appraisal of the full and complete record before us, that the second statement, coming as it did on the heels of — if not in tandem with — the first, unconstitutionally-obtained, compelled statement, was unavoidably tainted. The most generous and indulgent view of the record cannot generate a conclusion of sufficient attenuation between the first and second interrogations to dissipate the taint. The second statement, chameleon-like, retains the coloration of the first as a matter of law, and hence must itself be deemed to have been unconstitutionally compelled.

Under either view of the second or “state” statement— whether seen as produced by the same interrogation process as the first, or, even though separate, as tainted by the first — it is inadmissible.

VI

We base the holdings of this case not only on our understanding of federal constitutional law, but on our state common-law privilege against self-incrimination as well. See supra at 256, 267, 271, 277, 278, 281, 282. While it is our view that either ground would be sufficient, we are compelled by principles of sound jurisprudence to rest our decision on both.

As for the federal law, we believe that were the questions before us squarely presented to the Supreme Court, its decision would be the same as ours. All the signposts point in that direction, and we have sought to follow them faithfully, not to write new law. The fact remains, however, that the Supreme Court has not ruled squarely on the issue before us of whether the circumstances attending the obtaining of the “federal” statement amounted to a failure scrupulously to honor defendant’s previously-asserted right to remain silent, with the result that that statement must be deemed to have been unconstitutionally compelled. In respect of federal constitutional law, therefore, ours is a predictive exercise, one conducted on the basis of our best understanding of the authorities, but nonetheless predictive. We think our reading of the federal law is right. We acknowledge that it may be wrong. Given the importance of the question involved, we see our duty to settle it as a matter of state law.

The necessity for our giving guidance to our own law-enforcement officials cannot be underestimated. We are faced with a situation similar to that presented in State v. Deatore, 70 N.J. 100 (1976). When we decided that case, the United States Supreme Court had not yet ruled on whether a defendant’s post-arrest silence could be used on cross-examination to undercut an “alibi” defense. Recognizing the importance of this issue to our state’s criminal justice system, as well as the confusing “disarray in decisional treatment of the question,” we ruled as a matter of state law that such cross-examination was improper. 70 N.J. at 112. Our concern with the effective administration of our state criminal-justice system has led us in other circumstances to create or enforce criminal defendants’ rights under our supervisory power, N.J. Const, of 1947 art. VI, § 2, para. 3, when the scope of federal constitutionally-required protection was unclear. See, e.g., State v. Gregory, 66 N.J. 510 (1975) (adopted “same transaction,” compulsory-joinder rule to prevent double jeopardy); Rodriguez v. Rosenblatt, 58 N.J. 281 (1971) (indigent defendants not to be subjected to conviction entailing imprisonment or other consequence of magnitude without first having had fair opportunity to have counsel appointed). Similarly, in non-criminal contexts we have rested decisions dealing with important personal rights alternatively on state and federal grounds. E.g., In re Quinlan, 70 N.J. 10, 40, cert. denied sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1976).

Moreover, we would be remiss were we to rest our decision exclusively on federal grounds when alternative state grounds exist. Failure to set forth clearly the independent state-law basis for a decision in a case in which federal constitutional law is also involved can lead to needless review in the United States Supreme Court, and could in fact require, in some cases, subsequent redundant proceedings in our own courts. Such a disregard for concerns of judicial economy has been criticized, Massachusetts v. Upton, 466 U.S. 727, 735-39, 104 S.Ct. 2085, 2089-91, 80 L.Ed.2d 721, 728-31 (1984) (Stevens, J., concurring). We heed that criticism today by stating expressly that our decision, which we view as consistent with federal fifth-amendment cases, is based alternatively “on bona fide separate, adequate, and independent grounds.” Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983).

The privilege against self-incrimination has been an integral thread in the fabric of New Jersey common law since our beginnings as a state. State v. Fary, 19 N.J. 431, 435 (1955); see also State v. Zdanowicz, 69 N.J.L. 619, 622 (E. & A. 1903) (“Although we have not deemed it necessary to insert in our constitution this prohibitive provision, the common law doctrine, unaltered by legislation or by lax practice, is by us deemed to have its full force. In New Jersey, no person can be compelled to be a witness against himself.”). The voluntariness of confessions has consistently been tested in this state under common-law principles, albeit principles often expanded or altered in response to federal constitutional decisions. State v. Smith, 32 N.J. 501, 542 (1960), cert. denied, 364 U.S. 936, 81 S.Ct. 383, 5 L.Ed.2d 367 (1961).

The existence of independent state grounds for our decision should not, however, preclude reliance on United States Supreme Court precedent when federal-constitutional rights are implicated, as in the instant case, and the bulk of decisional law in the area is federal. To the extent that we rely on federal precedent in reaching our state-law decision, we do so only for the purpose of guidance, recognizing that those precedents may not compel the result that we reach today. See Michigan v. Long, supra, 463 U.S. at 1041, 103 S.Ct. at 3476, 77 L.Ed.2d at 1214.

YII

Our holdings are consistent with the very essence of the privilege against self-incrimination. The Supreme Court stated in Miranda that

the privilege against self-incrimination — the essential maintenance of our adversary system — is founded on a complex of values. All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government — state or federal — must accord to the dignity and integrity of its citizens. * * * In sum, the privilege is fulfilled only when the person is guaranteed the “right to remain silent unless he chooses to speak in the unfettered exercise of his own will.” [Miranda, supra, 384 U.S. at 460, 86 S. Ct. at 1620, 16 L.Ed.2d at 715 (citations omitted).]

To accord this governmental respect “to the dignity and integrity of its citizens” that is the foundation of this fifth-amendment privilege, as well as of our own common-law rule, law-enforcement authorities must cease interrogation of a suspect on his request and cannot resume until a new set of warnings has been given, to impress upon the accused that his right to remain silent is still in effect and that he need not speak unless it be by his own desire. The benefit of this “bright-line” rule is that it will protect the rights of a defendant and, at the same time, be easy for the police to implement. The rule that we announce today will no more hinder the difficult, critically-important business of law-enforcement than did the rule that the Supreme Court laid down in Miranda, supra, 384 U.S. at 481, 86 S.Ct. at 1631, 16 L.Ed.2d at 727.

The exclusion of an illegally procured confession and of any testimony obtained in its wake deprives the Government of nothing to which it has any lawful claim and creates no impediment to legitimate methods of investigating and prosecuting crime. [Harrison v. United States, 392 U.S. 219, 224 n. 10, 88 S.Ct. 2008, 2011 n. 10, 20 L.Ed.2d 1047, 1052 n. 10 (1968).]

Our aim today is to fashion requirements that will guarantee protection of the right against self-incrimination, that are easy to observe, and that will produce clear and consistent results in cases to follow.

The judgment of conviction is reversed and the cause remanded for retrial.

1 We are confident that by now the police are intimately familiar with Miranda and what that case requires by way of warnings. "Prior to any questioning the [accused] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707 (1966).

2 We denied certification on the issue of whether the police initially had conducted a lawful search of defendant’s apartment in New York. 97 N.J. 605 (1984). Thus, in accordance with Rule 2:2-l(a)(2), the case is now limited to only that issue in respect of which the dissent was filed, namely, whether the authorities violated defendant’s right to remain silent.

3 The anxiety of the federal agents was understandable in view of the fact that several hours had passed since Hartley's arrest and nearly six hours had elapsed from the time of his arrest to the time he was finally taken for arraignment. The agents came perilously close to violating the federal speedy-arraignment requirement: "An officer making an arrest under a warrant * * * shall take the arrested person without unnecessary delay before the nearest available federal magistrate * * Fed.R.Crim.P. 5(a). Even if such a violation would not have led to the dismissal that the agents obviously dreaded, it seriously risked suppression of any statement obtained. See Mallory v. United States, 354 U.S., 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957); 18 U.S.C.A. § 3501 (1985).