State v. Hartley

STEIN, J.,

dissenting.

This is a “second-level”1 Miranda case, involving as it does the rights of an accused who, after receiving his Miranda warnings, invokes one of them — the right to remain silent. The issue posed is one of first impression before this Court: When an accused asserts the right to remain silent, under what circumstances may law-enforcement officials interrogate the accused or request that he reconsider the exercise of this constitutional right?

The majority of the Court today adopts a per se rule that law-enforcement officials, confronted with an accused who has invoked the right to remain silent, must at a minimum readminister Miranda warnings before either interrogating the accused or requesting that he reconsider the assertion of his fifth-amendment right. According to the majority, this per se rule applies irrespective of the number of times Miranda warnings have already been administered and, apparently, even when *305law-enforcement officials have acknowledged to the suspect that his right to remain silent is still in effect. In my view, this per se rule not only leads to an incorrect result in this case but is not helpful in clarifying for law-enforcement officials the increasingly convoluted issues concerning the application of Miranda principles to custodial interrogations.

I

The facts are adequately set forth in the majority opinion and do not require restatement. However, I would emphasize certain aspects of appellant’s custodial treatment in order to focus the issues in this case.

Of paramount importance is the fact that from the time of Hartley’s arrest in his apartment at 7:30 a.m. until the critical statement by Special Agent Frieberg at 10:43 a.m., ante at 257-258 his rights had been scrupulously respected by the law-enforcement officials participating in his arrest. As noted in the majority opinion, when Hartley was arrested at 7:30 a.m., he was read his Miranda rights from the FBI “Advice of Rights” card. Thereafter, none of the arresting officers made any attempt to interrogate him, either at his apartment or on the way to the Brooklyn-Queens FBI office.

At 9:15 a.m., Hartley and three FBI agents were present in a processing room containing photographic and fingerprinting apparatus. He was not handcuffed and the agents were unarmed. Before he was reinformed of his Miranda rights, he was questioned briefly about his education and his ability to read and understand the English language. Hartley had attended high school through the tenth grade and obtained a high school diploma by fulfilling New York State’s equivalency requirements; hence, there was no doubt that he was capable of *306understanding the Miranda rights that were about to be reread to him.2

One of the FBI agents then reread to Hartley the “Advice of Rights” form and afterwards handed him the form to read. At the bottom of the form was a “Waiver of Rights” section, which read:

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.

As the majority opinion indicates, Hartley displayed some hesitancy about signing the waiver form. When asked what the problem was, Hartley replied, “I don’t believe I want to make a statement at this time.” Accordingly, Hartley was instructed to cross out the sentence on the “Waiver of Rights” form that read, “I am willing to make a statement and answer questions.” Hartley crossed out the sentence, initialed the deletion, and signed the “Waiver of Rights” form. No attempt was made to interrogate Hartley or to question his clear assertion of the right to remain silent.

Hartley was then fingerprinted and photographed. There was no further communication with Hartley until the statement by Agent Frieberg at 10:43 a.m. Accordingly, it is indisputable that the conduct of the law enforcement officials from the time of Hartley’s arrest until 10:43 a.m. scrupulously honored Hartley’s right to remain silent.

I concur with the majority that the critical event in this case is Agent Frieberg’s statement at 10:43 a.m.: “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.”

*307The majority opinion makes much of the fact that the FBI agents were concerned about the necessity of transporting Hartley to a magistrate for arraignment and that the impetus for the phrase, “Now is the time to do it,” stemmed from the agents’ concern that time was running out on them and they would have to leave promptly to transport Hartley to the federal court. This sense of urgency would appear to be overemphasized by the majority since Frieberg’s comment to Hartley was made at 10:43 a.m., his interrogation of Hartley continued until 12:57 p.m., and Hartley was not transported for his arraignment until approximately 1:30 p.m., about two hours and forty-five minutes after the interrogation commenced. Agent Frieberg’s testimony that he had received instructions to transport Hartley for arraignment “without delay,” ante at 269, referred to a telephone call to Agent Robley at about 1:00 p.m., long after the interrogation had begun.

The majority concludes that Frieberg’s statement constituted conduct inconsistent with Hartley’s right to remain silent. The majority is unimpressed with that portion of the statement that plainly reacknowledges Hartley’s fifth-amendment rights— “And I would like you to reconsider and now is the time if you are going to make a statement’ — and concludes that without a third reading of the Miranda rights, Hartley’s subsequent confessions to the FBI and to the Atlantic City police must be suppressed.

II

The majority defends its holding on the basis that it affords law-enforcement officials a “bright line” rule by which to guide their conduct during custodial interrogation. Whether the majority holding serves the function claimed for it requires a brief review of Miranda and the post-Miranda decisions applicable to “second-level” Miranda safeguards.

Under Miranda, as a prerequisite to custodial interrogation, the police must inform the accused of his basic rights. These *308rights are the right to remain silent, accompanied by the warning that any statement can and will be used against the accused in court; the right to consult with a lawyer and to have the lawyer present during the interrogation; and the right to have a lawyer appointed to represent the accused if he is indigent. Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694, 720-23 (1966). Although the Court in Miranda emphasized that interrogation must cease if the accused invokes either his right to remain silent or his right to confer with counsel, id. at 473-74, 86 S.Ct. at 1627-28, 16 L.Ed.2d at 723, subsequent decisions have differentiated ^between the conduct required of law-enforcement officials with respect to the invocation of these two rights.

A. The right to counsel.

In 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), the Court, emphasizing its belief that “additional safeguards are necessary when the accused asks for counsel,” adopted a per se rule that once an accused invokes his right to counsel, law-enforcement officials cannot subject him to further interrogation until counsel has been made available, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1884, 68 L.Ed.2d at 386. This Court has applied the per se rule of Edwards in several cases. See State v. Kennedy, 97 N.J. 278, 285 (1984); State v. Wright, 97 N.J. 113, 122-23, 125-26 (1984); State v. McCloskey, 90 N.J. 18, 25-28 (1982).

However, Edwards has left unsettled significant questions regarding its implementation. In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the Supreme Court was sharply divided as to whether the defendant, who had invoked his right to counsel, satisfied the Edwards test of initiating further communication when he inquired of a police officer, “Well, what is going to happen to me now?” Four *309members of the Court viewed the defendant’s comment as reflecting nothing more than his desire “to find out where the police were going to take him,” rather than a desire for a generalized discussion about the investigation. Id. at 1055, 103 S.Ct. at 2840, 77 L.Ed.2d at 419 (Marshall, J., dissenting). Four members of the Court found that the defendant’s question satisfied the test of Edwards that the accused himself initiate further dialogue with the police. Id. at 1044-46, 103 S.Ct. at 2834-35, 77 L.Ed.2d at 412-13.3 Justice Powell, concurring in the judgment of the Court, criticized the two-step analysis applied by both the majority and the dissent, which distinguished between the initiation of communication by the accused and the voluntariness of the waiver. In his view, the more appropriate inquiry is whether or not the eventual waiver is knowing, intelligent, and voluntary. Id. at 1050-51, 103 S.Ct. at 2837-38, 77 L.Ed.2d at 415-16.

B. The right to remain silent.

In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Court considered the admissibility of a confession made by a suspect who had previously invoked his right to remain silent. The Court acknowledged that Miranda left open the question whether law-enforcement officials may resume interrogation when a person in custody invokes his right to silence: “It does not state under what circumstances, if any, a resumption of questioning is permissible.” Id. at 101, 96 S.Ct. at 325, 46 L.Ed.2d at 320. The Court rejected the suggestion that the invocation of the right to silence creates an absolute bar to any subsequent interrogation:

[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.
********
*310A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt “fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored____” The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person’s exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude 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. at 102-104, 96 S. Ct. at 326, 46 L.Ed.2á at 320-21 (citations omitted).]

In Mosley the Court held that the statement obtained from the defendant after the second interrogation was admissible at his trial because the police had “scrupulously honored” the defendant’s right to cut off questioning. The Court noted that the police immediately ceased the initial interrogation when the accused invoked his right to remain silent, that they attempted no further interrogation until a significant period of time had elapsed and fresh Miranda warnings had been administered, and that they limited the second interrogation to a different crime. Id. at 105-106, 96 S.Ct. at 327-328, 46 L.Ed.2d at 322.

At least one state court, relying on state constitutional grounds, has rejected the Mosley rationale, holding that once an accused has asserted his right to remain silent, police interrogation must cease and cannot be resumed. People v. Pettingill, 21 Cal.3d 231, 578 P.2d 108, 145 Cal.Rptr. 861 (1978); cf. Michigan v. Mosley, 423 U.S. at 116-17, 120-21, 96 S.Ct. at 332-33, 334-35, 46 L.Ed.2d at 329-32 (Brennan, J., dissenting) (suggesting that states adopt as a matter of state law the rule that once the accused has invoked his right to silence, no further interrogation is permitted unless counsel is present). Several commentators have sharply criticized the distinction drawn between an accused who invokes the right to silence and one who invokes the right to counsel:

If it is inherently coercive — if it is inconsistent with Miranda — to renew interrogation after a suspect has invoked his right to counsel, I think it is equally wrong for the police to do so if the suspect has asserted his right to *311remain silent. The average person has no idea that different procedural safeguards are triggered by saying “I want to see a lawyer” (or “I don’t want to say anything until I see a lawyer”) rather than “I don’t want to say anything” (or “I don’t want to talk to you.”). [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).]

See Stone, “The Miranda Doctrine in the Burger Court,” 177 Sup.Ct.Rev. 99, 136-37 (1977).

If the objective of the majority in this case is to establish a “bright line” rule as to suspects who invoke the right to remain silent, a much clearer rule than the one announced in the opinion would be one that eliminates the distinction between the assertion of the fifth amendment right to remain silent and the sixth amendment right to counsel. The majority, without discussing the validity of the distinction between Edwards and Mosley, follows the Mosley principle that reinterrogation is not barred following an assertion of the right to remain silent,4 and simultaneously adopts the per se rule that after an accused has *312asserted his right to silence, law-enforcement officials can neither interrogate him nor ask him to reconsider his right to remain silent until new Miranda warnings have been administered. Ante at 256, 261.

Most pre- and post-Mosley decisions that address the issue, however, do not insist on fresh Miranda warnings as a prerequisite to reinterrogation. See Stumes v. Solem, 752 F.2d 317, 321 (8th Cir.) (“[W]e believe that Stumes was aware of his Miranda rights and voluntarily chose not to exercise them. To require the police to reissue Miranda rights under these circumstances would serve no real purpose.”), cert. denied, — U.S. -, 105 S.Ct. 2145, 85 L.Ed.2d 502 (1985); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (“We conclude that no violation of petitioner’s rights occurred by the failure to reissue the Miranda warnings.”), reh’g denied, 740 F.2d 979 (11th Cir. 1984), and cert. denied, — U.S.-, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985); United States v. Hackley, 636 F.2d 493 (D.C.Cir. 1980) (third set of Miranda warnings not required and statement made two hours after last warnings held admissible; dissenting opinion views colloquy with accused as reinterrogation); Brown v. Tard, 552 F.Supp. 1341, 1349 (D.N.J.1982) (“Miranda does not require that a fresh set of warnings be repeated each time the police resume interrogation after an interruption.”); see also Miller v. United States, 396 F.2d 492, 496 (8th Cir.1968) (rewarning not required each time interrogation process renewed; pre-Mosley), cert. denied, 393 U.S. 1031, 89 S.Ct. 643, 21 L.Ed.2d 574 (1969); United States v. Kinsey, 352 F.Supp. 1176, 1178 (E.D.Pa.1972) (Miranda warnings do not become stale; pr e-Mosley); State v. Melvin, 65 N.J. 1, 14 (1974) (no repetition of Miranda warnings required; pre-Mosley); State v. Magee, 52 N.J. 352, 374 (1968) (no repetition of Miranda warnings required prior to reinterrogation; pre-Mosley), cert. denied, 393 U.S. 1097, 89 S.Ct. 891, 21 L.Ed. 2d 789 (1969). Contra United States v. Jakakas, 423 F.Supp. 564, 568-69 (E.D.N.Y.1976); People v. Ferro, 63 N.Y.2d 316, 472 N.E.2d 13, 482 N.Y.S.2d 237 (1984), cert. denied, — U.S. *313-, 105 S.Ct. 2700, 86 L.Ed.2d 717 (1985); cf. People v. Young, 115 Ill.App.3d 455, 460, 71 Ill.Dec. 259, 265, 450 N.E.2d 947, 953 (App.Ct.1983) (Mosley interpreted to require fresh warnings, but defendant’s confirmation that he understood rights previously read to him satisfies rule); State v. McCloskey, supra, 90 N.J. at 30 n. 3 (Mosley read to require new Miranda warnings prior to resumption of interrogation).

C. Waiver.

The principle is well settled that a suspect may waive his constitutional rights to remain silent and to counsel, and that a confession made subsequent to the waiver of those rights will be admissible. The test is whether the waiver is knowing, intelligent, and voluntary. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). The waiver need not be express or explicit. The question of waiver is to be determined on the basis of the particular facts and circumstances of each case, including the background, experience, and conduct of the accused. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-59, 60 L.Ed.2d 286, 292- 93 (1979). New Jersey has consistently followed the rule that “an explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent.” Id. at 375-76, 99 S.Ct. at 1758-59, 60 L.Ed. at 293- 94; see State v. Kennedy, supra, 97 N.J. at 286. As we stated in State v. Kremens, 52 N.J. 303 (1968):

Any clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth. The criterion is not solely the language employed but a combination of that articulation and the surrounding facts and circumstances. [Id. at 311 (citations omitted).]

Ill

Preliminarily, in order to appreciate the narrowness of the majority’s focus in this case, it is significant to note that the trial court, after a lengthy hearing, expressly determined that Hartley’s waiver of his right to silence was knowing and voluntary:

*314I am satisfied beyond any doubt that this defendant did intelligently understand his rights. He had a right to remain silent. He had a right to counsel * * *. I am satisfied that Hartley knew that he did not have to make a statement. He already took that position once. There is no reason why he could not maintain that position. * * *
I think he thought it was in his best interest to do what he did. I think he did it knowingly and voluntarily and willingly. I do not believe that there was any coercion or any threats or any force or any improper conduct on the part of the authorities.
I do not find, in fact, that Mr. Hartley’s will was overborne by any conduct on the part of the State.

Concededly, Agent Frieberg’s use of the phrase, “Now is the time to do it,” in encouraging Hartley to reconsider his refusal to make a statement, could have been found to be an attempt to exert pressure on Hartley and therefore inconsistent with a voluntary waiver. The trial court, however, rejected that argument and found as a fact that Hartley’s waiver was knowing, intelligent, and voluntary. See Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S. Ct. at 1023, 82 L.Ed. at 1466. The trial court’s factual determination on the waiver issue, amply supported by the record in this case, should not be disturbed by us. State v. Johnson, 42 N.J. 146, 162-63 (1964).5

The majority declines to reach the waiver issue on the basis of the following reasoning:

[G]iven our holding that the failure scrupulously to honor a previously-invoked right to silence 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. 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 this appeal. [Ante at 261 (citations omitted).]

*315Although the majority opinion refuses to consider the waiver issue, careful analysis demonstrates that in this case the criteria for recognizing a valid waiver of the right to silence necessarily encompass the factors that determine whether the right to silence has been scrupulously honored. The Mosley Court took pains to explain what it meant by the “scrupulously honored” standard. “The critical safeguard identified in the passage at issue is a person’s right to cut off questioning.” Michigan v. Mosley, supra, 423 US. at 102-104, 96 S.Ct. at 325-327, 46 L.Ed. at 320-21. This suggests that the primary inquiry required by Mosley is to determine whether the police make it clear, when they resume communication with the accused, that his right of silence is still in force. The emphasis does not focus simply on knowledge of the substance of the right — an objective that would be served by a rereading of the Miranda rights — but on an acknowledgement that the right previously asserted would continue to be honored if that was the accused’s wish.

A valid waiver must be knowing, intelligent and voluntary. Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466. It is self-evident that Hartley could not validly waive his right to silence if he did not know both the nature of the right and that his privilege to continue to assert it was in effect at the instant of waiver. The trial court in this case found these conditions for a valid waiver to have been satisfied:

I am satisfied beyond any doubt that this defendant did intelligently understand his rights. He had a right to remain silent. He had a right to counsel * * *. I am satisfied that Hartley knew that he did not have to make a statement. He already took that position once. There is no reason why he could not maintain that position.

As stated, the criteria for recognizing the validity of Hartley’s waiver would appear to subsume the requirement of Mosley that an accused’s right to remain silent must be “scrupulously honored.” The majority’s refusal to consider the waiver issue in this case ignores the fact that Frieberg’s crucial statement and Hartley’s response occurred in rapid succession. This is not a case where there was a significant lapse of time *316between the alleged failure to respect the defendant’s right to remain silent and the defendant’s waiver. Here, the challenged police conduct and the alleged waiver occurred together. The majority’s rejection of the trial court’s factual finding that Hartley’s waiver was valid, on the basis that Frieberg’s statement made a moment earlier violated the Mosley test, is an unduly technical application of Mosley. This was the point urged by Justice Powell in his concurring opinion in Oregon v. Bradshaw, supra:

Justice Marshall would hold that there can be no waiver of the right to counsel unless the accused himself opens a dialogue “about the subject matter of the criminal investigation.” He states that “unless the accused himself initiates further communication with the police, a valid waiver of the right to counsel cannot be established.” Under this view of the two-step analysis, a court never gets to the second step — however relevant subsequent facts and circumstances may be to a waiver — unless the accused was the first to speak and to say the right thing. * * *
My concern is that a two-step analysis could confound the confusion evident from the differing views expressed by other courts * * * and indeed evidenced by the conflicting reading of Edwards by Justices Marshall and Rehnquist. The Zerbst standard is one that is widely understood and followed. It also comports with common sense. Fragmenting the standard into a novel two-step analysis — if followed literally — often would frustrate justice as well as common sense. Courts should engage in more substantive inquiries than “who said what first.” The holding of the Court in Edwards cannot in my view fairly be reduced to this.
We are unanimous in agreeing in this case, as in Edwards, that “the right to counsel [is] a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard.” We also agree that once the accused has requested counsel this right requires additional safeguards, particularly against any coercive form of custodial interrogation. But the question of whether a suspect has waived this important right to counsel is uniquely one of fact, and usually must and should be left to the judgment of the trial court that has had the benefit of hearing the evidence and assessing the weight and credibility of testimony. [Id. 462 U.S. at 1050-51, 103 S.Ct. at 2837-38, 77 L.Ed.2d at 415-16 (citations omitted).]

Justice White, concurring in Michigan v. Mosley, agreed with Justice Powell’s view that the critical issue should be the validity of the waiver:

I suspect that in the final analysis the majority will adopt voluntariness as the standard by which to judge the waiver of the right to silence by a properly informed defendant. I think the Court should say so now. [432 U.S. at 108, 96 S.CL at 328, 46 L.Ed.2A at 324.]

*317The majority cites Michigan v. Jackson, 475 U.S.-,-, 106 S.Ct. 1404, 1410, 89 L.Ed.2d 631, 642 (1986), as authority for rejecting consideration of the waiver in this case. In Jackson, however, the right asserted was the right to counsel and recognition of the waiver in that context would not test the police officer’s compliance with the Edward’s requirement that renewed communication be initiated by the accused. The difference in the right to silence context is that when the challenged police conduct occurs simultaneously with the waiver, the validity of the waiver depends upon whether the police have scrupulously honored the right to silence. Thus, there is no reason not to focus on the validity of the waiver in this case.

In my view, when the police conduct alleged to violate the “scrupulously honored” test of Mosley coalesces in time with the alleged waiver, there is no legal or logical impediment to a court’s consideration of the validity of the waiver. The trial court could not have found that defendant knowingly and voluntarily waived his right to remain silent had it not also found that the conduct of law enforcement officials was consistent with the continued assertion of that right.6 Accordingly, I reach the waiver issue in this case and would uphold the factual determination of the trial court.

However, even on the basis of the Mosley standard, I would conclude that Hartley’s right to remain silent was “scrupulously honored.” The majority opinion does not acknowledge a number of decisions, both pre- and post-Mosley, that have recognized the important distinction between renewed interrogation and a request by law enforcement officials that an accused “reconsider” his right to remain silent. These courts have acknowledged that such a request, unlike renewed interrogation, is not inconsistent with the continued availability of the right to remain silent.

*318There is a critical distinction between, on the one hand, an inquiry for the limited purpose of clarifying whether the defendant is invoking his right to remain silent or has changed his mind regarding an earlier assertion of the right and, on the other hand, questioning aimed at eliciting incriminating statements concerning the very subject on which the defendant has invoked his right. [United States v. Lopez-Diaz, 630 F.2d 661, 665 (9th Cir.1980).]

See United States v. Smith, 608 F.2d 1011, 1013-14 (4th Cir.1979); United States v. Davis, 527 F.2d 1110, 1111 (9th Cir.1975), cert. denied, 425 US. 953, 96 S.Ct. 1729, 48 L.Ed.2d 196 (1976); United States v. Collins, 462 F.2d 792, 797 (2d Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 254 (1972).

Mosley was intended to permit renewed, noncoercive communication between law-enforcement officials and suspects who have initially elected to remain silent. The least intrusive way in which such communication can be resumed is by a request that the suspect reconsider his prior assertion of the right to remain silent. Such a request is clearly more consistent with the suspect’s asserted right than the resumption of direct interrogation concerning the crime under investigation. When the request for reconsideration is conveyed in language that constitutes a clear reacknowledgement of the suspect’s continuing right to remain silent, a requirement that new Miranda warnings precede such a request would be redundant. A request that the suspect reconsider his right to remain silent presumes the continued availability of that right. See United States v. Smith, supra, 608 F.2d at 1014.

As stated previously, the Mosley Court expressed the “scrupulously honored” test in terms of a defendant’s right to cut off questioning. Consistent with that standard, it would seem evident that a reacknowledgment of the right to remain silent is as effective a means of satisfying the Mosley test as is a verbatim rereading of the Miranda warnings.

Agent Frieberg plainly reacknowledged to Hartley the continued availability of his right to remain silent. His request to Hartley was that he “reconsider” — which itself acknowledges that the right to remain silent continued in effect — and he then advised Hartley, “Now is the time if you are going to make a *319statement. Now is the time to do it.” The phrase “if you are going to make a statement” could only mean one thing: that it was Hartley’s choice to talk or not to talk.

In the face of Agent Frieberg’s statement to Hartley that reacknowledged the existence of his right to remain silent, it is difficult to understand the majority’s insistence on fresh warnings in this case. Surely, the majority’s holding that new warnings should have been administered to Hartley does not stem from a concern that Hartley did not know that he had the right to remain silent. He had been told that on two occasions already that same morning. As recently as 9:15 a.m. — about an hour and a half before Agent Frieberg’s statement — Hartley had asserted his right to silence in unmistakable terms: “I don’t believe I want to make a statement at this time,” and the FBI agents demonstrated their respect for that decision by directing Hartley to delete the pertinent language from the waiver form. Moreover, the trial court specifically found as a fact that Hartley “knew that he did not have to make a statement.”

Significantly, several courts have observed that the repetition of the Miranda warnings tends to reduce their importance to a suspect: “The more times police inform a suspect of his rights in the face of his repeated invocation of one of those rights— the right to remain silent — the clearer it becomes that the police must not mean what they say.” United States v. Hernandez, 574 F.2d 1362, 1368 (5th Cir.1978). This Court has expressed similar reservations, which the majority opinion ignores, about requiring repeated Miranda warnings: “ ‘To adopt an automatic second-warning system would be to add a perfunctory ritual to police procedures rather than providing the meaningful set of procedural safeguards envisioned by Miranda.’ ” State v. Magee, supra, 52 N.J. at 374 (quoting People v. Hill, 39 Ill.2d 125, 132, 233 N.E.2d 367, 3761, cert. denied, 392 U.S. 936, 88 S.Ct. 2305, 20 L.Ed.2d 1394 (1968)).

*320Under the circumstances of this case, Agent Frieberg’s reacknowledgement of Hartley’s right to remain silent was as effective a means of informing Hartley of the continued existence of his right to silence as would have been yet another verbatim recitation of the same “Advice of Rights” form that the FBI agents had read to Hartley on two prior occasions that day. I would conclude that Hartley’s right to cut off questioning was “scrupulously honored” by virtue of the express reacknowledgement of that right incorporated in Agent Frieberg’s statement. Based upon that conclusion and the trial court’s factual finding that Hartley’s waiver of his right to silence was knowing, intelligent, and voluntary, I would affirm the trial court’s and the Appellate Division’s determination that Hartley’s confession to the FBI and his subsequent confession to the Atlantic City police were admissible.

IV

As stated, I disagree strongly that the requirement of fresh Miranda warnings has any application to this case, since Hartley was well aware of his Miranda rights and understood that his right to remain silent was still in effect. I also disagree that this “bright line” rule will serve to clarify this already complex area of the law for law-enforcement officials. The rule does not end the inquiry as to whether a suspect’s Miranda rights have been “scrupulously honored.” With or without fresh Miranda warnings, the facts and circumstances of every custodial interrogation must be examined carefully and pragmatically to determine whether a suspect’s right to cut off questioning has been protected. All that the rule will do is serve as a basis for suppressing confessions not preceded by the mandatory rewarning. Once it has been established that the fresh warnings were administered, the trial court must proceed to determine if the suspect's rights were “scrupulously honored.”

*321This “bright line” rule, intended by the majority to constitute a minimum standard for compliance with Mosley, may well be interpreted by law-enforcement officials as a simplistic prerequisite to the reinterrogation of suspects who have previously asserted the right to silence. Such an interpretation would divert the focus of the police away from the principles of Miranda that should ultimately guide the conduct of those law enforcement officials who have responsibility for custodial interrogations. Moreover, because the rule will compel the warnings to be readministered to suspects who have already been read their Miranda rights at least once, an atmosphere of meaningless ritual will inevitably accompany the repeated incantation of the same set of rights to the same suspect by the same police officer. Such ritual, I suggest, will not “scrupulously honor” a suspect’s Miranda rights but will breed disrespect for them.

I suspect that this “bright line” rule will generate exaggerated police testimony, perfunctory warnings, and a multiplicity of exceptions. I believe it neither advances the constitutional rights of criminal defendants nor the important objectives of law enforcement.

Y

Although, based on my view of the record, Hartley’s confession to the FBI should be admissible in evidence, I feel constrained to comment on the majority’s suppression of the later, rewarned confession to the Atlantic City police. The majority suggests two approaches to the question of the admissibility of the second confession. The first approach “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.” Ante at 279. By treating the two confessions as the result of an indivisible procedure of interrogation, the majority excludes the second confession for precisely the same reasons it excludes the first. *322On this analysis, I would hold the second confession admissible for precisely the same reasons I would the first, viz., that both confessions were voluntary waivers of a right to remain silent scrupulously honored by the custodial authorities.

The majority also analyzes the two confessions as “separate and distinct,” and is thus required to invoke the “fruit of the poisonous tree” doctrine to exclude the second, rewarned, confession from evidence. In reaching this conclusion, the majority attempts to reconcile it with the Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In that case, police officers had gone to the defendant’s home for the purpose of arresting him as a suspect in a residential burglary. An officer, before administering Miranda warnings, told Elstad that he believed Elstad was involved in the crime. Elstad responded to the officers’ comments with the words, “Yes, I was there.” He was then taken to the local sheriff’s office and gave a full confession after being administered Miranda warnings. The Oregon Court of Appeals held the confession to be inadmissible. The Supreme Court reversed, noting that the failure by law-enforcement officials to administer Miranda warnings did not constitute a constitutional violation. “The failure of the 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.

Since the failure of the police initially to administer Miranda warnings was found by the Court not to be inconsistent with the voluntariness of Elstad’s first admission, the Court concluded that the subsequent confession following the full Miranda warnings was admissible:

If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will so taints the investigatory process that a subsequent voluntary and informed waiver is *323ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. [/A at-, 105 S.Ct. at 1293, 84 L.Ed.2d at 232.]

The majority today holds that although the failure of the police in Elstad to administer “the prophylactic Miranda procedures” did not render Elstad’s first statement involuntary, the failure by the FBI in this case to readminister the “prophylactic Miranda procedures,” after Hartley had already received them twice, necessarily caused Hartley’s first confession to be involuntary. Ante at 277-278. The Court reaches this conclusion as a matter of law, disregarding the finding by the trial court in this case that Hartley’s confession was voluntary and not coerced. The majority’s conclusion appears to be inconsistent with the decision in Elstad.

There is a tenable distinction between a confession obtained, as in Elstad, voluntarily but not preceded by Miranda warnings, and a confession obtained by coercion or by blatantly disregarding a suspect’s asserted right to counsel or to remain silent. In an attempt to distinguish Elstad, the majority characterizes this case as one “concerning [a] suspect[] whose invocation of [his] right to remain silent and to have counsel present were flatly ignored while police subjected [him] to continued interrogation.” Ante at 276 (quoting Oregon v. Elstad, supra, 470 U.S. at —, 105 S.Ct. at 1296 n. 3, 84 L.Ed.2d at 234-35 n. 3) (emphasis added). In so doing, the majority does not acknowledge the distinction drawn by the Elstad Court “between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a ‘guilty secret’ freely given in response to an unwarned but noncoercive question * * Oregon v. Elstad, supra, 470 U.S. at-, 105 S.Ct. at 1295, 84 L.Ed.2d at 234. In Elstad, the Court was simply reaffirming the distinction between violations of prophylactic rules and violations of the underlying constitutional right against compul*324sory self-incrimination. Id. at-, 105 S. Ct. at 1292 n. 1, 1292, 1293, 84 L.Ed.2d at 230 n. 1, 231, 232; New York v. Quarles, 467 U.S. 649, 655 n. 5, 104 S.Ct. 2626, 2631, n. 5, 81 L.Ed.2d 550, 556 n. 5 (1984); Michigan v. Tucker, 417 U.S. 433, 440-48, 94 S.Ct. 2357, 2361-66, 41 L.Ed.2d 182, 190-95 (1974); Miranda v. Arizona, supra, 384 U.S. at 457, 86 S.Ct. at 1618, 16 L.Ed.2d at 713. Hence, “[t]he most realistic reading of Elstad is that the ‘fruit of the poisonous tree’ doctrine simply does not apply to Miranda violations — whether the ‘fruit’ is a second confession or a witness or physical evidence.” Kamisar, “Heavy Blow Delivered by Miranda Decision,” The National Law Journal, Sept. 2,1985, at S — 22; see also Martin v. Wainwright, 770 F.2d 918, 928 (11th Cir.1985) (Mosley violations, absent actual coercion, violate the “technical requirements of Miranda, but [do] not violate the Fifth Amendment itself.”); “The Supreme Court, 1984 Term — Leading Cases,” 99 Harv.L.Rev. 120, 142-151 (1985) (under Elstad courts must find actual, not presumed, coercion in obtaining original statement in violation of Miranda in order to bar admission of derivative evidence). Although the majority denominates the violation as one of constitutional magnitude, ante at 282, it follows from Elstad that the “fruit of the poisonous tree” doctrine does not apply to a Mosley violation where that violation was simply a failure to give the prophylactic Miranda warnings a third time.

In this case, there is no finding that Hartley’s confession was coerced, and the majority’s conclusion that his right to remain silent was not “scrupulously honored” is not based on objective findings, but is a self-imposed result based solely on the new requirement of fresh Miranda rewarnings. The majority’s holding that the failure to give the third Miranda warning to Hartley taints his subsequent confession to the Atlantic City police is irreconcilable with the holding in Elstad that the failure to give the first Miranda warning did not bar the second confession in that case.

For the reasons stated, I would affirm the judgment of conviction.

See Kamisar, "The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away,” 5 The Supreme Court: Trends and Developments 1982-83, 153 (1984) (citing People v. Grant, 45 N.Y.2d 366, 371-72, 380 N.E.2d 257, 260, 408 N.Y.S.2d 429, 432 (1978)).

While confined in the County Jail awaiting trial, defendant filed pro se motions to suppress evidence and to compel inspection of the affidavit used to obtain a search warrant for his apartment.

For a critique of the majority opinion, see Kamisar, supra note 1, at 163-69.

I agree with the majority’s determination to follow Mosley rather than adopt, on state constitutional grounds, a rule prohibiting interrogation unless in the presence of counsel or after the accused voluntarily indicates a willingness to make a statement. Concededly, the distinction between a request for counsel and an assertion of the right to remain silent is narrow. However, it is probably fair to construe a request for counsel as a more emphatic and more permanent rejection of police interrogation than a refusal to answer questions. It is appropriate to recognize that suspects may be uncertain whether they will serve their own interests better by silence or by cooperation with the police. In this case, appellant may have been eager to communicate the fact that he was not directly responsible for the homicides. The majority’s adoption of the Mosley rule indicates that the public interest in permitting inculpatory statements by persons in custody is sufficient to justify renewed but restrained communication by law-enforcement officials with suspects who have initially asserted their right to remain silent. I believe this to be the proper approach. However, its adoption by the majority should be accompanied by a clear warning to law enforcement officials that inculpatory statements made by the accused after asserting a right to remain silent will be inadmissible if the accused’s rights have been overborne by direct or indirect pressure. The majority's per se rule requiring mandatory rewarning focuses on a formalistic procedure and in my view does not adequately emphasize the substantive conduct required of law enforcement officials after an accused has asserted his right to remain silent. See infra at 270-272.

Justice Handler, in his separate opinion, agrees that the trial court's determination as to the voluntariness of Hartley’s statement is "clearly sustainable in the record.” Ante at 303.

Indeed, the trial court found: "I do not believe that there was any coercion or any threats or any force or any improper conduct on the part of the authorities.”