Solem v. Stumes

Justice White

delivered the opinion of the Court.

The question in this case is whether Edwards v. Arizona, 451 U. S. 477 (1981), should be applied retroactively.

I

Respondent, Norman Stumes, was a suspect in the death of Joyce Hoff in Sioux Falls, S. D. On September 27, 1973, Stumes was arrested in Green Bay, Wis., on pending perjury and felony check charges. He had not yet been charged with Hoff’s death. The following morning he spoke by phone with his attorney in Sioux Falls, who told him not to make any statements before returning to South Dakota. Three Sioux Falls police officers, Skadsen, Green, and Hendrick, went to Green Bay to bring Stumes back. They first spoke with him on the morning of October 1. After being read his Miranda rights, Stumes said that he understood them and did not object to speaking with police without his attorney present. After an hour and a half of conversation about the homicide, Green asked Stumes if he would be willing to take a lie detector test. Stumes answered that “that is a question I’d rather not answer until I talk to [my attorney].” At that point the officers stopped questioning.

The officers returned that afternoon and recommenced questioning without giving Miranda warnings. Stumes admitted he had been in Hoff’s apartment the night of the killing and that they had had intercourse, but he denied having had anything to do with her death. When asked if the death had been intentional or accidental, Stumes said that it had been accidental. He then stated that “I would rather not talk about it any more at this time until I talk to my attorney, and after that I’ll give you a full statement in regards to her death.” Questioning thereupon ceased.

The next morning Stumes and the three officers set out, by car, on the 600-mile trip to Sioux Falls. Stumes was given his Miranda warnings at the beginning of the trip, and was asked whether he would be willing to talk. He shrugged and nodded affirmatively, and there was then some further questioning. For most of the trip, the conversation was about unrelated matters, though occasionally the subject of Hoff’s death came up. Late in the afternoon, after a 10- or 15-minute silence in the car, respondent had what he referred to as “a little conflict with my emotions” and “made the statement that I couldn’t understand why anybody would want to kill Joyce and that the taking of a human life is so useless.” Green told him he would feel better if he “got it off his chest.” Stumes then recounted striking and strangling Hoff after she had said she would tell someone that she and Stumes had slept together. Green asked if Stumes would give the police a statement when they reached Sioux Falls, noting that his attorney would undoubtedly advise him not to. Stumes agreed to give a statement, stating: “I don’t give a damn what he says. I’m doing anything I feel like, and I’ll talk to anybody I want to.” Stumes and the officers reached Sioux Falls at about 6:45 in the evening. Shortly after being placed in a cell, Stumes called for Skadsen, asking him to “tell them that I didn’t mean to kill her, that it was an accident— that I’m not a vicious killer.”

Stumes was charged with murder; the trial court refused to suppress any of his statements to the police; and the jury found him guilty of first-degree manslaughter and sentenced him to life imprisonment. On direct appeal, the State Supreme Court remanded for a determination whether Stumes’ statements had been voluntary. The trial court found that they had; the conviction was accordingly “automatically affirmed.” 90 S. D. 382, 241 N. W. 2d 587 (1976).

Stumes then filed this petition for a writ of habeas corpus in the United States District Court for the District of South Dakota. The District Court denied the writ after an eviden-tiary hearing. It concluded that Stumes had knowingly, intelligently, and voluntarily waived his right to counsel. Miranda did not require that all questioning must cease forever once a suspect has requested counsel. 511 F. Supp. 1312 (1981). Given the totality of the circumstances, the questioning during the trip to South Dakota was proper.¹

While Stumes’ appeal was pending, we held that once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him. Edwards v. Arizona, supra. Applying Edwards to this case, the Court of Appeals for the Eighth Circuit found that the police had acted unconstitutionally in twice renewing interrogation after Stumes had invoked his right to counsel. 671 F. 2d 1150 (1982).²

Petitioner sought a writ of certiorari on three questions: whether the conduct of the police in this case violated Edwards, whether the District Court adequately deferred to the state court’s factfinding, and whether Edwards should be applied retroactively. We granted certiorari only as to the third. 463 U. S. 1228 (1983). We therefore assume for present purposes that the conduct at issue here violated Edwards. We need not decide whether the police also violated Miranda v. Arizona, 384 U. S. 436 (1966), a question not considered by the Court of Appeals. Because we conclude that the court erred in applying Edwards to this case, we reverse and remand for reconsideration under pre-Edwards law.

II

As a rule, judicial decisions apply “retroactively.” Robinson v. Neil, 409 U. S. 505, 507-508 (1973). Indeed, a legal system based on precedent has a built-in presumption of retroactivity. Nonetheless, retroactive application is not compelled, constitutionally or otherwise. Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932). Since Linkletter v. Walker, 381 U. S. 618 (1965), which held that Mapp v. Ohio, 367 U. S. 643 (1961), applied only to defendants whose convictions were not yet final when Mapp was decided, we have recognized that “the interest of justice” and “the exigencies of the situation” may argue against imposing a new constitutional decision retroactively. 381 U. S., at 628. The basic principles of retroactivity in criminal cases were established in Linkletter v. Walker, supra, Tehan v. United States ex rel. Shott, 382 U. S. 406 (1966), and Johnson v. New Jersey, 384 U. S. 719 (1966). Under these cases,

“[t]he criteria guiding resolution of the [retroactivity] question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967).³

Examining Edwards in light of these three factors, we conclude that it should not be applied retroactively.

A

Complete retroactive effect is most appropriate where a new constitutional principle is designed to enhance the accuracy of criminal trials. See Williams v. United States, 401 U. S. 646, 663, and n. 6 (1971) (plurality opinion) (citing cases). The Edwards rule has only a tangential relation to truthfinding at trial. As we have noted in the past, “the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree.” Johnson v. New Jersey, supra, at 728-729. The application of the exclusionary rule pursuant to Edwards is perhaps not as entirely unrelated to the accuracy of the final result as it is in the Fourth Amendment context. See United States v. Peltier, 422 U. S. 531 (1975); Desist v. United States, 394 U. S. 244 (1969). Yet the Edwards rule cannot be said to be a sine qua non of fair and accurate interrogation. We faced a similar situation in Stovall v. Denno, supra, where we held that the newly established rule that counsel had to be present during lineups was not to be applied retroactively. There we noted that although excluding identifications made in the absence of counsel was “justified by the need to assure the integrity and reliability of our system of justice, [it] undoubtedly will affect cases in which no unfairness will be present.” Id., at 299. The same is true of the Edwards rule. The fact that a suspect has requested a lawyer does not mean that statements he makes in response to subsequent police questioning are likely to be inaccurate. Most important, in those situations where renewed interrogation raises significant doubt as to the voluntariness and reliability of the statement and, therefore, the accuracy of the outcome at trial, it is likely that suppression could be achieved without reliance on the prophylactic rule adopted in Edwards.⁴

We have frequently refused to give retroactive effect to decisions that bore at least as heavily on the truthfinding function. The most notable of these is Miranda itself, which was held to apply only to trials taking place after it was decided. Johnson v. New Jersey, supra.⁵ See generally Williams v. United States, supra, at 655, n. 7. The Edwards rule is a far cry from the sort of decision that goes to the heart of the truthfinding function, which we have consistently held to be retroactive. E. g., Brown v. Louisiana, 447 U. S. 323 (1980); Hankerson v. North Carolina, 432 U. S. 233 (1977); Arsenault v. Massachusetts, 393 U. S. 5 (1968). Rather, it is a prophylactic rule, designed to implement preexisting rights. This Court has not applied such decisions retroactively. See Michigan v. Payne, 412 U. S. 47 (1973); Halliday v. United States, 394 U. S. 831 (1969) (per curiam); Stovall v. Denno, supra.

B

In considering the reliance factor, this Court’s cases have looked primarily to whether law enforcement authorities and state courts have justifiably relied on a prior rule of law said to be different from that announced by the decision whose retroactivity is at issue. Unjustified “reliance” is no bar to retroactivity. This inquiry is often phrased in terms of whether the new decision was foreshadowed by earlier cases or was a “clear break with the past.”⁶ When the Court has explicitly overruled past precedent, disapproved a practice it has sanctioned in prior cases, or overturned a longstanding practice approved by near-unanimous lower-court authority, the reliance and effect factors in themselves “have virtually compelled a finding of nonretroactivity.” United States v. Johnson, 457 U. S. 537, 549-550 (1982). See also id., at 551-552. We have been less inclined to limit the effect of a decision that has been “distinctly foreshadowed.” Brown v. Louisiana, supra, at 336. At just what point of predictability local authorities should be expected to anticipate a future decision has been unclear, however.

Edwards established a bright-line rule to safeguard preexisting rights, not a new substantive requirement. Before and after Edwards a suspect had a right to the presence of a lawyer, and could waive that right. Edwards established a new test for when that waiver would be acceptable once the suspect had invoked his right to counsel: the suspect had to initiate subsequent communication. Prior to Edwards the Court had “strongly indicated that additional safeguards are necessary when the accused asks for counsel,” 451 U. S., at 484, and had several times referred to an accused’s right to be free from further questioning once he invoked his right to counsel, see id., at 485. Edwards did not overrule any prior decision or transform standard practice. Thus, it is not the sort of “clear break” case that is almost automatically nonretroactive.

Edwards nonetheless did establish a new rule. We do not think that the police can be faulted if they did not anticipate its per se approach. Cf. Adams v. Illinois, 405 U. S. 278, 283 (1972) (plurality opinion). Prior to Edwards, the emphasis in our cases had been on whether, as an individual, case-by-case matter, a waiver of the right to counsel had been knowing, voluntary, and intelligent. See Johnson v. Zerbst, 304 U. S. 458, 464 (1938). As we said in North Carolina v. Butler, 441 U. S. 369, 374-375 (1979), relying on Johnson v. Zerbst and treating the Fifth Amendment right to counsel as a fortiori, “[e]ven when a right so fundamental as that to counsel at trial is involved, the question of waiver must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’” There we saw “no reason to discard that standard and replace it with an inflexible per se rule.” 441 U. S., at 375. See also Fare v. Michael C., 442 U. S. 707, 724-725 (1979). The Miranda majority, 384 U. S., at 475, viewed the waiver question as controlled by Johnson v. Zerbst and was taken to task for that view by one of the dissenters, 384 U. S., at 513-514 (Harlan, J., dissenting). See also Tague v. Louisiana, 444 U. S. 469, 470-471 (1980); Michigan v. Tucker, 417 U. S. 433, 444 (1974).⁷ It does not in any way cast doubt on the legitimacy or necessity of Edwards to acknowledge that in some cases a waiver could be knowing, voluntary, and intelligent even though it occurred when the police recommenced questioning after an accused had invoked the right to counsel. The Court had several times refused to adopt per se rules governing the waiver of Miranda rights. Michigan v. Mosley, 423 U. S. 96 (1975); North Carolina v. Butler, supra. See also Brown v. Illinois, 422 U. S. 590, 603-604 (1975). And, while Mosley did distinguish the right to counsel from the right to silence, 423 U. S., at 104, n. 10, much of the logic and language of the opinion could be applied to the invocation of the former. Edwards was not a necessary consequence of Miranda. Thus it could be justifiably believed that a waiver of the right to counsel following its invocation could be voluntary even if the police initiated the conversation.

The state of the law in the lower courts prior to the Edwards decision bears out this reality. Cf. Michigan v. Payne, 412 U. S., at 56. Before Edwards, the question whether the authorities could resume questioning after a defendant has asked for an attorney was acknowledged to be unsettled. See United States v. Hernandez, 574 F. 2d 1362, 1370, n. 16 (CA5 1978); United States v. Herman, 544 F. 2d 791, 796, n. 8 (CA5 1977). Some courts prohibited resumption of questioning unless initiated by the suspect. E. g., United States v. Womack, 542 F. 2d 1047, 1050-1051 (CA9 1976); United States v. Priest, 409 F. 2d 491, 493 (CA5 1969). On the other hand, a number of courts allowed renewed interrogations after a request for counsel. E. g., Blasingame v. Estelle, 604 F. 2d 893 (CA5 1979); White v. Finkbeiner, 611 F. 2d 186, 191 (CA7 1979), vacated and remanded, 451 U. S. 1013 (1981); United States v. Rodriguez-Gastelum, 569 F. 2d 482, 488 (CA9) (en banc), cert. denied, 436 U. S. 919 (1978); Hill v. Whealon, 490 F. 2d 629 (CA6 1974). See also United States v. Clark, 499 F. 2d 802, 807 (CA4 1974).⁸

In Johnson v. New Jersey, we declined to measure the prospectivity of Miranda from the date of Escobedo v. Illinois, 378 U. S. 478 (1964), because it had not been “fully anticipated” or “clearly foreshadowed” by that decision. 384 U. S., at 734. “The disagreements among other courts concerning the implications of Escobedo, however, have impelled us to lay down additional guidelines for situations not presented by that case. This we have done in Miranda and these guidelines are therefore available only to persons whose trials had not begun” when Miranda was decided. 384 U. S., at 734 (footnote omitted). The same logic argues against retroactive application of Edwards, which, in light of the disagreements among lower courts, laid down additional guidelines for the implementation of Miranda.

In short, it cannot be said that our decision in Edwards had been “clearly” or “distinctly” foreshadowed. See Adams v. Illinois, supra, at 283. Cf. Brown v. Louisiana, 447 U. S., at 336. In these circumstances, we consider the reliance interest compelling, even though Edwards did not overrule a specific decision.

C

The retroactive application of Edwards would have a disruptive effect on the administration of justice. We can only guess at the number of cases where Edwards might make a difference in the admissibility of statements made to the police, but the number is surely significant. In all of those, some inquiry would be required to assess the substantiality of any Edwards claim. That investigation, and the possible retrial, would be hampered by problems of lost evidence, faulty memory, and missing witnesses. See Jenkins v. Delaware, 395 U. S. 213, 220-221 (1969).

D

In sum, Edwards has little to do with the truthfinding function of the criminal trial, and the rights it is designed to protect may still be claimed by those whose convictions preceded the decision. It would be unreasonable to expect law enforcement authorities to have conducted themselves in accordance with its bright-line rule prior to its announcement; and retroactive application would disrupt the administration of justice. Weighing these considerations, we conclude that Edwards should not be applied retroactively.

HH HH HH

At a minimum, nonretroactivity means that a decision is not to be applied in collateral review of final convictions. For purposes of this case, that is all we need decide about Edwards.⁹ Our prior cases have drawn the nonretroactivity line in a variety of places. Some decisions have been applied only to defendants whose convictions were not yet final when the new rule was established, United States v. Johnson, 457 U. S. 537 (1982); Linkletter v. Walker, 381 U. S. 618 (1965), some only to those defendants whose trials had not yet begun at that point, Johnson v. New Jersey, 384 U. S. 719 (1966); DeStefano v. Woods, 392 U. S. 631 (1968), some only to those whose constitutional rights were violated after the law-changing decision was handed down, United States v. Peltier, 422 U. S. 531 (1975); Desist v. United States, 394 U. S. 244 (1969); Stovall v. Denno, 388 U. S. 293 (1967), and some only to those cases where the prosecution sought to introduce (newly) illegal evidence after the date of the nonretroactive decision, Fuller v. Alaska, 393 U. S. 80 (1968). Just where the line should be drawn as to Edwards need not be decided today.

IV

The Court of Appeals erred by evaluating the constitutionality of the police conduct in this case under the standards set out in Edwards. We express no opinion as to whether the conduct of the police in this case was acceptable under prior cases from this Court or the Eighth Circuit, and remand to the Court of Appeals for that determination.

Reversed and remanded.

1 The District Court found that the morning questioning was not unconstitutional. Stumes was informed of his rights and questioning ceased when he requested a lawyer. The court concluded that the afternoon session was unconstitutional because the officers had failed to reinform Stumes of his rights. However, it considered the trial court’s error in admitting statements made at that time harmless beyond a reasonable doubt.

2 The court thought that Stumes’ agreement to speak when the police resumed questioning was not a valid waiver. Nor was his comment that taking a human life was useless the initiation of new conversation about the homicide, particularly as it came only after he had been questioned intermittently throughout the trip and the actual incriminating statement was prompted by the officer’s invitation to “get it off his chest.” Finally, the statement to Skadsen at the jail was tainted by the previous, unconstitutionally obtained, incriminating statements. One judge dissented on the ground that Stumes had initiated further communication and made a valid waiver. The court did not consider whether Edwards should be applied retroactively.

3 A majority of the Court has recently adopted a slightly different approach in the Fourth Amendment area. United States v. Johnson, 457 U. S. 537 (1982). Without considering the Linkletter/Stovall factors, Johnson held that a decision construing the Fourth Amendment that was not a “clear break with the past” is to be applied to all convictions not yet final when the decision was handed down. The Court was careful to note the limits to its holding:

“First, our decision today does not affect those cases that would be clearly controlled by our existing retroactivity precedents. Second, because respondent’s case arises on direct review, we need not address the retroactive reach of our Fourth Amendment decisions to those cases that still may raise Fourth Amendment issues on collateral attack. Third, we express no view on the retroactive application of decisions construing any constitutional provision other than the Fourth Amendment.” 457 U. S., at 562 (footnotes and citation omitted).

These limitations make Johnson inapplicable to this case, which is controlled by prior precedent, arises on collateral review, and does not involve the Fourth Amendment.

4 Like, for example, Miranda and North Carolina v. Pearce, 395 U. S. 711 (1969), Edwards did not confer a substantive constitutional right that had not existed before; it “created a protective umbrella serving to enhance a constitutional guarantee.” See Michigan v. Payne, 412 U. S. 47, 54 (1973). Because the “foundational” right was, and remains, available to defendants in pre-Edwards cases, “a decision of nonretroactivity is less likely to result in the continued incarceration of those whose convictions . . . rest on unconstitutional acts.” 412 U. S., at 54.

5 Much of what was said in Johnson v. New Jersey applies equally to this case:

“[T]he prime purpose of [Escobedo and Miranda] is to guarantee full effec-tuation of the privilege against self-incrimination, the mainstay of our adversary system of criminal justice. They are designed in part to assure that the person who responds to interrogation while in custody does so with intelligent understanding of his right to remain silent and of the consequences which may flow from relinquishing it. . . . [Wjhile Escobedo and Miranda guard against the possibility of unreliable statements in every instance of in-custody interrogation, they encompass situations in which the danger is not necessarily as great as when the accused is subjected to overt and obvious coercion.

“At the same time, our case law on coerced confessions is available for persons whose trials have already been completed, providing of course that the procedural prerequisites for direct or collateral attack are met. . . . Prisoners may invoke a substantive test of voluntariness. . . . Thus, while Escobedo and Miranda provide important new safeguards against the use of unreliable statements at trial, the nonretroactivity of these decisions will not preclude persons whose trials have already been completed from invoking the same safeguards as part of an involuntariness claim.” 384 U. S., at 729-730.

See also Jenkins v. Delaware, 395 U. S. 213, 222 (1969).

6 It can be both. A decision that overrules much-criticized precedent may well have been clearly foreshadowed. Katz v. United States, 389 U. S. 347 (1967), was such a decision. In holding that it was not retrospective, we stated: “However clearly our holding in Katz may have been foreshadowed, it was a clear break with the past” because it expressly overruled prior decisions. Desist v. United States, 394 U. S. 244, 248 (1969). Indeed, the dissent insisted there was nothing new about Katz. “Katz is not responsible for killing Olmstead. Prior cases had left the physical-trespass requirement of Olmstead virtually lifeless and merely awaiting the death certificate that Katz gave it.” 394 U. S., at 276 (Fortas, J., dissenting). Our cases indicate that even in this situation authorities are generally entitled to rely on existing case law, whatever its disrepute.

7 Justice Stevens nonetheless asserts that “[i]n Miranda the Court specifically rejected case-by-case inquiry into whether there was a knowing, voluntary, and intelligent waiver of Fifth Amendment rights, opting for a prophylactic rule that eschewed case-by-case inquiry.” Post, at 661, n. 7. As the very quotation on which Justice Stevens relies demonstrates, however, Miranda’s per se rule extended no further than requiring that the now-famous warnings be given in every case, regardless of the individual circumstances. Miranda did not adopt a per se rule with regard to waiver of the right to counsel. See 384 U. S., at 475-476. That development awaited Edwards.

8 As Justice Stevens points out, a dozen state courts had excluded evidence obtained under similar circumstances. See post, at 663, n. 9. The rulings of the state courts were not as one-sided as he implies, however. Among cases upholding reinterrogation of a suspect who had asserted his right to counsel are Ladd v. State, 568 P. 2d 960, 966, n. 8 (Alaska 1977), cert. denied, 435 U. S. 928 (1978); State v. Greenawalt, 128 Ariz. 150, 158-160, 624 P. 2d 828, 836-838, cert. denied, 454 U. S. 882 (1981); Brown v. United States, 359 A. 2d 600, 601-602 (D. C. 1976); State v. Stone, 397 A. 2d 989, 994-995 (Me. 1979); State v. Greene, 91 N. M. 207, 212-213, 572 P. 2d 935, 940-941 (1977); Commonwealth v. Jefferson, 445 Pa. 1, 5-6, 281 A. 2d 852, 854-855 (1971); Sweiberg v. State, 511 S. W. 2d 50 (Tex. Crim. App. 1974) (and cases cited); Nash v. State, 477 S. W. 2d 557, 560-563 (Tex. Crim. App.), cert. denied, 409 U. S. 887 (1972); State v. Pierce, 94 Wash. 2d 345, 350-352, 618 P. 2d 62, 65-66 (1980) (remanding for further factfinding).

9 In Wyrick v. Fields, 459 U. S. 42 (1982) (per curiam), a federal habeas action, we reversed the determination of the Court of Appeals that the police conduct in that case violated Edwards. We did not consider whether Edwards applied in such circumstances, nor did we have to, because even if it did the lower court had erred on the merits. That decision cannot be read as a holding that Edwards should be applied retroactively to cases on collateral review. For the same reasons, of course, Oregon v. Bradshaw, 462 U. S. 1039 (1983), should not be read as holding that Edwards applies on direct review to interrogations occurring before it was decided. The questioning involved there occurred nine months before Edwards was decided. On direct appeal, the Oregon Court of Appeals held that, in light of Edwards, the statements should have been suppressed. We reversed because the state court had misread Edwards. The retroactivity of Edwards was not considered.