474 U.S. 159 (1985)
In January 1981, police officers in Belfast, Maine responded to a fire call at the Belfast Dodge automobile dealership and discovered a burning stolen Chevrolet dump truck along with evidence of several automobile thefts inside a building leased to Brian Moulton and his codefendant Gary Colson.1
On April 7, 1981, a Waldo County grand jury indicted Moulton and Colson on four counts of theft by receiving stolen goods.2 Moulton and Colson, represented by retained counsel, pleaded not guilty on April 9 and were released on bail.3
On November 4, 1982, Colson telephoned Police Chief Robert Keating to report anonymous threatening calls and expressed a desire to discuss the pending charges.4 After consulting his lawyer, Colson met with police on November 9 and 10, provided full confessions of his and Moulton's participation in the thefts and additional crimes including burglary and arson, and agreed to testify against Moulton and cooperate in the prosecution in exchange for no further charges.5 The police placed a recording device on Colson's telephone with instructions to record calls from Moulton or threats.6
Colson recorded three telephone conversations with Moulton on November 22, December 2, and December 14, 1982, in which the men discussed the pending charges and arranged to meet on December 26 to plan their defense.7 On December 26, Colson wore a body wire transmitter to the meeting as arranged with the police, and the two discussed defense strategy including false alibis, during which Moulton made numerous incriminating statements about the thefts that were later admitted at trial.8
Moulton moved to suppress the recorded statements before trial.9 The trial court denied the motion after finding the recordings were made to investigate threats and protect Colson.10 Moulton was convicted of burglary and theft following a bench trial.11
The Maine Supreme Judicial Court reversed the convictions on the ground that the statements were obtained in violation of Moulton's Sixth Amendment right to counsel. The United States Supreme Court granted the State's petition for certiorari.12
Whether the admission at trial of incriminating statements made by an indicted defendant to his codefendant, who was cooperating with the government as an informant, violated the defendant's Sixth Amendment right to the assistance of counsel?13
The Sixth Amendment right to counsel attaches at the initiation of adversary judicial proceedings, after which the State bears an affirmative obligation not to deliberately elicit incriminating statements from the accused in the absence of counsel, as recognized in Massiah v. United States and United States v. Henry.14
Yes. Moulton and Colson were indicted on April 7, 1981, triggering attachment of the right to counsel.15 Colson confessed and agreed to cooperate with police on November 9 and 10, 1982, after which officers recorded his telephone conversations with Moulton and equipped him with a body wire for the December 26 meeting.16 The police knew from the recorded calls that the men would discuss the pending theft charges and plan their defense.17
By arranging the surreptitious recording at a meeting whose purpose was defense preparation, the State knowingly created a situation likely to induce Moulton to make incriminating statements without counsel present.18 This conduct constitutes deliberate elicitation prohibited by the Sixth Amendment, whether or not Colson posed direct questions.19
The admission of the statements at trial therefore violated Moulton's Sixth Amendment right to the assistance of counsel.20
Related opinions on this issue
Joined by Rehnquist, J.
Chief Justice Burger dissented on the ground that the police acted with legitimate purposes in investigating threats to witnesses and protecting Colson.21 He noted that officers took explicit steps to avoid questioning about the pending charges by instructing Colson not to discuss them and to report back only if Moulton initiated the topic.22 Burger argued that the majority's rule would seriously impede legitimate law enforcement efforts to investigate separate crimes and would confer an unwarranted windfall on defendants who continue criminal activity while under indictment.23
He would have reversed the judgment of the Maine Supreme Judicial Court.24
Whether the fact that police had legitimate reasons for recording conversations with the informant, such as investigating threats to witnesses or other crimes, permits the admission of statements relating to the pending charges?25
Even when police possess alternative legitimate reasons for surveillance, incriminating statements pertaining to pending charges remain inadmissible at the trial of those charges if the State knowingly circumvented the accused's right to counsel in obtaining them.26
No. Although the trial court found that the recordings were made to investigate threats against witnesses and to protect Colson, the police were aware that Moulton and Colson would discuss the pending theft charges at their December 26 meeting.27 The State cannot rely on its interest in investigating other matters to justify the use of statements obtained in violation of the Sixth Amendment right that had already attached to the original charges.28 The legitimate motive does not cure the constitutional violation or render the statements admissible at the trial on the pending indictments.29
The existence of legitimate alternative reasons for the recordings does not permit admission of the statements relating to the pending charges.30
Related opinions on this issue
Joined by Rehnquist, J.
Chief Justice Burger maintained that when police pursue a good-faith investigation of separate offenses such as threats to witnesses, no Sixth Amendment violation occurs even if incriminating statements about pending charges are recorded.31 He reasoned that the deliberate-elicitation inquiry must focus on whether the State sought the statements for use on the already-charged offenses rather than on the separate crimes under investigation.32 Burger concluded that the evidence should have been held admissible and that the Maine judgment should be reversed.33