DWIGHT ERNEST DOUGALL, PETITIONER V. UNITED STATES OF AMERICA No. 90-7394 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 932-936) is reported at 919 F.2d 932. JURISDICTION The judgment of the court of appeals was entered on December 7, 1990. The petition for a writ of certiorari was filed on March 7, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the rule of Edwards v. Arizona, 451 U.S. 477 (1981), applies to police requests for hair samples and routine booking information. 2. Whether petitioner's right to remain silent was violated when, after petitioner invoked that right, the officers ceased interrogating him and became quiet. STATEMENT Petitioner was indicted in the Western District of Texas on one count of kidnapping, in violation of 18 U.S.C. 1201; three counts of aggravated sexual abuse, in violation of 18 U.S.C. 2241; and one count of attempted murder, in violation of 18 U.S.C. 1113. He entered a guilty plea to one count of aggravated sexual abuse, conditioned upon his right to appeal the denial of a motion to supress evidence. He was sentenced to 108 months' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed. Pet. App. 932-936. 1. In July, 1989, two men raped a young woman in an unoccupied apartment located on a military base. The woman described her atackers in detail to FBI agents and military police. Based on her description, as well as other evidence linking petitioner to the crime, the police arrested petitioner as he was leaving the base. Pet. App. 934; Gov't C.A. Br. 3-5. FBI agents advised petitioner of his rights, and he signed an acknowledgment and waiver. After about a minute of questioning, petitioner requested an attorney. The agents immediately stopped interrogating petitioner about the offense. They did, however, ask petitioner his name, social security number, birth date, birth place, height, weight, and address. This conversation lasted five or six minutes. The agents also asked petitioner to provide hair samples, and told him that if he did not do so voluntarily, they would seek a court order. Petitioner agreed to provide the samples at the base hospital. Pet. App. 934; Gov't C.A. Br. 6-7. As petitioner and the agents were about to leave for the hospital, petitioner said that he wanted to talk about the incident. He signed a second acknowledgement and waiver of rights. Petitioner admitted disrobing the victim and hitting her a number of times, but when the agents asked him if he had sexual intercourse with her, he replied that he did not want to answer any more questions. The agents stopped questioning him and sat quietly. Petitioner then answered the question by denying that he had intercourse with the victim. He admitted helping his accomplice to rape the victim and made additional inculpatory statements. The agents then took petitioner to the hospital where he furnished hair samples. Pet. App. 934; Gov't C.A. Br. 8-11. 2. Petitioner filed a motion to suppress the hair samples and the incriminating statements that he had made to arresting officers. He argued that this evidence had been obtained in violation of the rule of Edwards v. Arizona, 451 U.S. 477 (1981), barring police-initiated custodial interrogation of a suspect who has invoked his right to counsel. Additionally, he argued that his statements had been obtained in violation of his right to remain silent. /1/ The district court denied the motion to suppress. C.A. App. 76-83. The court found that petitioner had invoked his right to counsel during the interrogation, but it expressly credited the agents' testimony that petitioner then "voluntarily reinitiated communications and agreed to answer additional questions without having counsel present." Id. at 82. The court further found that, when petitioner subsequently declined to speak further with the agents, they ceased questioning him until he "himself took up the conversation again." Ibid. 3. The court of appeals affirmed. Pet. App. 932-936. The court recognized that "(a) confession obtained through interrogation of a suspect after he has requested an attorney must be suppressed as evidence unless the suspect himself has voluntarily initiated further communication leading to it." Id. at 935 (citing Edwards v. Arizona, 451 U.S. at 484-485). The court of appeals agreed with the district court that the Edwards rule was not violated here because petitioner reinitiated communications with police after invoking his right to counsel. The court noted that "interrogation includes words or actions that the authorities should know are reasonably likely to elicit an incriminating response from the suspect." Pet. App. 935 (citing Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980)). The court held that "the sort of biographical questions -- name, birth information, address, height, weight -- asked here are part of the booking routine, not intended to elicit damaging statements, and thus not interrogation for fifth amendment purposes." Pet. App. 935 (citing United States v. Menichino, 497 F.2d 935, 941 (5th Cir. 1974)). The court observed that the biographical questions were strictly limited, lasted only six minutes, and elicited no incriminating statements. Pet. App. 935. The court also held that the agents' request for hair samples did not violate petitioner's rights under the Fifth or Sixth Amendments. Hair samples, like handwriting examples, are non-testimonial physical evidence. Consequently, petitioner's right not to incriminate himself would not have been violated by an order compelling him to submit hair samples. Pet. App. 935 (citing Schmerber v. California, 384 U.S. 757, 760-764 (1966)). Moreover, petitioner's Sixth Amendment rights were not implicated because the agents' request did not occur at a critical stage of the proceeding. Pet. App. 935. Although the court of appeals commented that "it might have been more prudent to request the hair sample after (petitioner's) attorney had arrived to avoid incidentally pressuring" petitioner, the court concluded that the request did not elicit any incriminating statements, and found no evidence that the request was intended to elicit such statements. Id. at 936. Finally, the court concluded that the agents did not violate petitioner's Fifth Amendment rights by remaining in the room after he reinvoked his rights. /2/ Pet. App. 936. Distinguishing "(s)uch minor momentary inaction" from the sort of psychological pressure held impermissible in Brewer v. Williams, 430 U.S. 387 (1977), the court found that the agents had "endeavored to ensure (petitioner's) comfort" throughout the interview, and that there was nothing improper about this "one particular silent moment which (petitioner) singles out from the ongoing accommodation accorded him." Pet. App. 936. On the contrary, the court held, "(w)here other silences have occurred during the interrogation, waiting a short moment, quietly, without staring, to ensure that the defendant has finished saying what he wishes to say accommodates the defendant's comfort more than threatening to leave him alone." Id. at 936 n.3. ARGUMENT 1. Petitioner contends (Pet. 4-9) that the agents' routine biographical questions and request for hair samples violated his rights under Edwards v. Arizona, 451 U.S. 477 (1981). Those contentions are without merit. /3/ a. Petitioner's contention that the agents' questions about basic biographical information violated the Edwards rule overlooks this Court's decision in Pennsylvania v. Muniz, 110 S. Ct. 2638 (1990). /4/ In Muniz, five Members of this Court held that booking questions (e.g., questions about name, address, age, date of birth, height, weight, eye color) constitute custodial interrogation, but four of the five recognized that such questions "fall within a 'routine booking question' exception" to the requirements of Miranda. See 110 S. Ct. at 2650 (opinion of Brennan, J.); id. at 2654-2655 (Marshall J., concurring in part and dissenting in part). The remaining four Members of this Court concluded that the suspect's responses to booking questions were not testimonial and thus were not protected by the Fifth Amendment privilege against self-incrimination. See id. at 2654 (Rehnquist, C.J., concurring in part, concurring in the result in part, and dissenting in part). /5/ In the light of Muniz, it is clear that petitioner's rights under Edwards were not violated by his non-incriminating responses to the agents' biographical questions. b. Moreover, the agents' request for hair samples did not violate the Edwards rule. Because the request called for physical evidence rather than a testimonial admission, petitioner had no right under the Self-Incrimination Clause to refuse to provide the samples. See Schmerber v. California, 384 U.S. 757 (1966) (blood sample). See also United States v. Wade, 388 U.S. 218 (1967) (presence and speech at lineup); Gilbert v. California, 388 U.S. 263 (1967) (handwriting exemplar); United States v. Dionisio, 410 U.S. 1 (1973) (voice exemplar); Payne v. Thompson, 622 F.2d 254 (6th Cir.), cert. denied, 449 U.S. 1063 (1980) (hair and semen samples). The court of appeals considered and rejected the possibility that the request for hair samples "incidentally pressur(ed)" petitioner. Pet. App. 936. The court noted that the request was not intended to elicit, and did not elicit, any incriminating statements by petitioner. Ibid. 2. Petitioner also contends (Pet. 9-11, 15-16) that the officers violated his right to remain silent when they responded to his invocation of that right by "not asking any further questions, but just sitting and waiting for a response." Pet. 9-10. That fact-bound contention merits no further review. The agents responded to petitioner's invocation of his Fifth Amendment rights by breaking off the interrogation. That response was not only constitutionally permissible, but constitutionally required. See Miranda v. Arizona, 384 U.S. 436, 473 (1966) ("If the individual indicates * * * that he wishes to remain silent, the interrogation must cease."). Of course, it is conceivable that police silence, particularly when coupled with other actions, may place impermissible psychological pressure on a suspect who has invoked his rights under Miranda. In this case, however, petitioner conceded that "he did not feel threatened by the officers." Pet. App. 936. The agents "endeavored to ensure (petitioner's) comfort" during the interrogation. Ibid. They did not handcuff him, and broke off the questioning to allow petitioner to smoke or drink. In these circumstances, a short silence "to ensure that the defendant has finished saying what he wishes to say accommodates the defendant's comfort more than threatening to leave him alone." Id. at 936 n.3. Accordingly, the court of appeals reasonably concluded that "one particular silent moment," even though described by one agent as a "tactic" to see whether petitioner would answer the agents' question, did not violate petitioner's right to remain silent. /6/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney JUNE 1991 /1/ Petitioner also contended that the statements and hair samples should be suppressed because he was arrested without probable cause. He does not renew that contention here. /2/ As petitioner notes (Pet. 3 & n.1), the court of appeals erred in stating (Pet. App. 936) that petitioner invoked his right to counsel a second time. Petitioner testified at the suppression hearing (Tr. 74) that he declined to answer any more questions but did not request a lawyer. /3/ Petitioner's assertion that his Sixth Amendment rights were violated also is incorrect. His Sixth Amendment right to counsel attached only "at or after the time that judicial proceedings ha(d) been initiated against him -- 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" Brewer v. Williams, 430 U.S. 387, 398 (1977) (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality opinion)). At the time of the questioning, judicial proceedings against petitioner had not yet begun. /4/ Petitioner incorrectly asserts (Pet. 14-15), on the basis of pre-Muniz cases, that the courts of appeals are divided on this issue. /5/ Petitioner is plainly incorrect in contending (Pet. 4-7, 12-14) that the rule of Edwards applies to all custodial communications, even those not involving interrogation. This Court has held repeatedly that the prophylactic rules of Miranda and Edwards apply only to police-initiated interrogation of a suspect in custody. See, e.g., Arizona v. Roberson, 486 U.S. 675, 687 (1988); Rhode Island v. Innis, 446 U.S. 291 (1980). /6/ Contrary to petitioner's contention (Pet. 16), the court of appeals did not "implicitly h(o)ld that the intentions of the police are irrelevant" to the question whether their words or actions were reasonably likely to evoke an incriminating response. The court took into account the fact that one agent described the momentary silence as a "tactic," but nevertheless concluded, on the basis of all the facts, that petitioner's rights were not violated. Pet. App. 936 & n.3.