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CELLMATE INFORMANTS:
A CONSTITUTIONAL GUIDE TO THEIR USE
By
Kimberly Kingston Crawford, J.D.
Special Agent and Legal Instructor
FBI Academy
Quantico, Virginia
In recent years, legal scholars have debated the legality
and propriety of using cellmate informants. While some scholars
find the practice a "mere strategic deception [that takes]
advantage of a suspect's misplaced trust in one he supposes to be
a fellow prisoner," (1) others view the use of cellmate informants
as being "so offensive to a civilized system of justice that
[the practice] must be condemned." (2) Despite this debate, law
enforcement officers appear to have a unanimous opinion
regarding the use of cellmate informants--it is a technique that
works. Fortunately, the U.S. Supreme Court recently decided
Illinois v. Perkins, (3) which is a case that while not putting an
end to the debate, answers some questions regarding the
constitutionality of using cellmate informants and paves the way
for law enforcement officers to take advantage of this most
effective technique.
This article focuses on the decision in Perkins and examines
similar cases that deal with the constitutional issues involved
in using cellmate informants. More specifically, this article
addresses the fifth and sixth amendment considerations that must
be taken into account when placing an informant in a suspect's
cell.
FIFTH AMENDMENT--SELF-INCRIMINATION CLAUSE
While serving a 6-year sentence for burglary at the Graham
Correctional Facility in Hillsboro, Illinois, Donald Charlton met
and befriended fellow inmate Lloyd Perkins. In the course of
their friendship, Perkins confided in Charlton the details of a
murder he had committed in East St. Louis. Believing that
"people should not kill people," (4) Charlton eventually relayed
this information to law enforcement officials. Because the
information provided by Charlton tracked very closely the facts
of an unsolved case under investigation in East St. Louis,
officers found Charlton's story to be credible and decided to
pursue the matter further. Accordingly, it was decided that
undercover agent John Parisi, assuming the alias "Vito Bianco,"
would accompany Charlton to the Montgomery County Jail, where
Perkins was incarcerated on an unrelated charge of aggravated
assault.
After being booked and photographed, Parisi and Charlton
were placed in a cellblock with Perkins. Charlton introduced
Parisi to Perkins as a fellow inmate from the Graham Correctional
Facility. Parisi and Charlton led Perkins to believe that they
had escaped from a work release program at Graham and had gotten
as far as Montgomery County when their money and their luck ran
out. During the conversation that ensued, Parisi advised Perkins
that he "wasn't going to do any more time," (5) and suggested that
they attempt another escape. Perkins readily agreed and
volunteered his girlfriend to smuggle in a pistol. When asked if
he had ever "done" anyone, Perkins described at length the
details of the East St. Louis killing. The following day,
Perkins was charged with murder.
Prior to trial, Perkins moved to suppress the statements
made to Charlton and Parisi while in the Montgomery County Jail.
Because no Miranda (6) warnings had been given to Perkins prior to
his conversation with Parisi and Charlton, the trial court
granted Perkins' motion to suppress. The Appellate Court of
Illinois, holding that all undercover contacts with prisoners
that are reasonably likely to elicit incriminating responses
violate the rule in Miranda, affirmed the suppression order. (7)
The U.S. Supreme Court reviewed the decision of the Appellate
Court of Illinois and reversed. In doing so, the Court focused
on the fifth amendment protection against self-incrimination,
which is the linchpin of the Miranda rule.
The fifth amendment to the U.S. Constitution provides in
part that "no person...shall be compelled in any criminal case
to be a witness against himself...." (8) Over 2 decades ago, the
Supreme Court in Miranda v. Arizona (9) held that custodial
interrogation of an individual creates a psychologically
compelling atmosphere that works against this fifth amendment
protection. (10) In other words, the Court in Miranda believed
that an individual in custody undergoing police interrogation
would feel compelled to respond to police questioning. This
compulsion, which is a byproduct of most custodial
interrogation, directly conflicts with every individual's fifth
amendment protection against self-incrimination. Accordingly,
the Court developed the now-familiar Miranda warnings as a means
of reducing the compulsion attendant in custodial interrogation.
The Miranda rule requires that these warnings be given to
individuals in custody prior to the initiation of interrogation.
This rule, however, is not absolute. (11)
In Perkins, the Supreme Court recognized that there are
limitations to the rule announced in Miranda. The Court
expressly rejected the argument that "Miranda warnings are
required whenever a suspect is in custody in a technical sense
and converses with someone who happens to be a government
agent." (12) Rather, the Court concluded that not every
custodial interrogation creates the psychologically compelling
atmosphere that Miranda was designed to protect against. When
the compulsion is lacking, so is the need for Miranda warnings.
The Court in Perkins found the facts at issue to be a clear
example of a custodial interrogation that created no compulsion.
Pointing out that compulsion is "determined from the perspective
of the suspect," (13) the Court noted that Perkins had no reason
to believe that either Parisi or Charlton had any official power
over him, and therefore, he had no reason to feel any
compulsion. On the contrary, Perkins bragged about his role in
the murder in an effort to impress those he believed to be his
fellow inmates. Miranda was not designed to protect individuals
from themselves. Consequently, the Court held there was no need
to advise Perkins of his rights prior to his conversation with
Parisi and Charlton.
The controlling facts present in Perkins would most likely
exist in any case where statements are obtained by a cellmate
informant or an officer operating undercover in a prison.
Although there is custodial interrogation in the technical sense,
there is no compulsion if the suspect is unaware of the officer's
or informant's true identity or purpose. Therefore, there is no
need to advise jailed suspects of their Miranda rights prior to
using a cellmate informant. (14) There are, however, other fifth
and sixth amendment rights that can limit the use of cellmate
informants as an investigative technique.
FIFTH AMENDMENT--DUE PROCESS CLAUSE
In addition to the self-incrimination clause, the fifth
amendment to the U.S. Constitution also provides that "no person
shall be...deprived of life, liberty, or property, without the
due process of law." (15) This due process clause has been
interpreted by the Supreme Court as requiring that all
defendants in criminal prosecutions be treated with fundamental
fairness. (16) With respect to confessions, the Court has held
that to be fair, a confession must be voluntary. (17) To coerce a
suspect into making an involuntary statement or confession would
be unfair, and thus, the use of that statement against the
suspect would constitute a violation of due process.
On the other hand, no unfairness or due process violation
would result from the use of an uncoerced statement voluntarily
made by the suspect. To avoid due process problems, a law
enforcement officer contemplating the use of a cellmate informant
must take steps to ensure that an informant does nothing to
coerce the suspect into making an involuntary statement. The
case of State v. Fulminate (18) is illustrative of this point.
In Fulminate, defendant was serving a 2-year sentence on a
weapons violation when he met and became friends with fellow
inmate Anthony Sarivola, an FBI informant masquerading as an
organized crime figure. Following the inception of their
friendship, Sarivola heard a rumor that defendant was responsible
for the murder of a young girl in Arizona. Although defendant
denied the rumor, Sarivola relayed the information to his contact
in the FBI and was instructed to find out more. Knowing that
defendant was receiving "rough treatment" from other inmates
because of the rumor, Sarivola offered defendant his protection
in exchange for the truth. In response, defendant confessed to
shooting his 11-year-old stepdaughter in the head after first
raping her and making her beg for her life. At the defendant's
trial for first-degree murder, Sarivola was permitted, over
defense objections, to repeat to the jury the confession
defendant had previously made. (19) The jury subsequently found
defendant guilty of murder in the first degree and sentenced him
to death.
On appeal, defendant argued, among other things, (20) that
his confession to Sarivola was involuntary, and therefore, the
use of that confession against him was a violation of due
process. In support of this argument, defendant reminded the
court that his reputation in the prison as a child murderer
subjected him to a very serious threat of physical abuse at the
hands of the other inmates. Sarivola, it was argued, recognized
defendant's vulnerability and used it as a tool to extract the
confession. After reviewing the facts, the Arizona Supreme
Court agreed with defendant's due process argument and concluded
as follows:
"To be deemed free and voluntary within the meaning of the
fifth amendment, a confession must not have been obtained by
`any direct or implied promises, however slight, nor by the
exertion of any improper influence.'" (21)
Believing Sarivola's offer of protection to be "an exertion
of improper influence," the court found the resulting confession
to be involuntary and its use at trial a violation of due
process. Defendant's conviction was, therefore, reversed.
The U.S. Supreme Court has agreed to review the Fulminate
case. (22) While it is possible that the decision of the Arizona
Supreme Court will be reversed after review, the State court's
opinion still serves as a poignant reminder to law enforcement
officers of the need to keep a close rein on cellmate informants.
As is evident in Fulminate, even the most innocuous of
statements can be made to appear threatening or coercive when
dissected by the courts. To avoid fifth amendment due process
problems, careful planning must occur prior to any contact
between a cellmate informant and a suspect. In particular, law
enforcement officers should instruct cellmate informants to avoid
making any statements that may be construed as threats or
promises of leniency.
SIXTH AMENDMENT--RIGHT TO COUNSEL
The final constitutional concern confronting a law
enforcement officer contemplating the placement of a cellmate
informant is whether the use of the informant will violate the
suspect's sixth amendment right to counsel. The sixth amendment
to the U.S. Constitution guarantees that "[i]n all criminal
prosecutions, the accused shall...have the Assistance of Counsel
for his defense." (23) The U.S. Supreme Court has interpreted the
sixth amendment as guaranteeing not merely the right to counsel
but, more importantly, the right to the effective assistance of
counsel. (24) To be effective, an attorney must be permitted to
form a relationship with the accused some time prior to trial, (25)
and the government cannot needlessly interfere with that
relationship. (26) Thus, to resolve all sixth amendment concerns, a
law enforcement officer contemplating the use of a cellmate
informant must determine two things: 1) Did the suspect's right
to counsel attach? and 2) if so, what can a cellmate informant do
without interfering with that right?
Right to Counsel Attaches at Critical Stage
Determining whether a suspect's right to counsel has
attached simply requires the law enforcement officer to discover
whether the suspect has reached a critical stage in the
prosecution. As previously mentioned, the sixth amendment right
to counsel would be meaningless if the suspect and attorney were
not permitted to form a relationship some time prior to trial.
However, the Supreme Court has held that it is not necessary to
allow this relationship to form simply because an individual
becomes a suspect in a case. (27) Instead, the Court has found
that the sixth amendment guarantee of the effective assistance
of counsel is satisfied if the attorney and suspect are
permitted to form their relationship once the prosecution has
reached a critical stage. (28)
The Court has defined the critical stage as the filing of
formal charges (i.e. an indictment or an information) or the
initiation of adversarial judicial proceedings. (29) Thus, if no
formal charges have been filed against the suspect and no initial
appearance before the court has been conducted, then no critical
stage in the prosecution has been reached, and a cellmate
informant can be placed without concern for the suspect's sixth
amendment right to counsel. If, on the other hand, a critical
stage has been reached, then the suspect's sixth amendment right
to counsel has attached and extreme caution must be used to
ensure that the cellmate informant does not interfere with that
right.
Post-Critical Stage Uses for Cellmate Informants
Once it is determined that a suspect's sixth amendment
rights have attached, the law enforcement officer must realize
that there are only two functions a cellmate informant can
lawfully perform without interfering with that suspect's right to
counsel. These two functions are: 1) Gathering information
regarding an unrelated crime, (30) or 2) acting as a listening
post. (31)
Unrelated crimes
Even though the suspect's right to counsel has attached, a
cellmate informant may gather information about an unrelated
crime because the sixth amendment is crime specific. (32) Under the
sixth amendment, a suspect only has the right to the assistance
of counsel with respect to the crimes formally charged against
him. (33) If, then, a cellmate informant is used to elicit
information from a suspect that pertains to some unrelated,
uncharged crime, there is no unlawful interference with the
suspect's right to counsel. The facts in Perkins demonstrate
this point well.
As noted earlier, Perkins was in the Montgomery County Jail
pending trial on a charge of aggravated assault when Charlton and
Parisi were placed in his cellblock to gather information about
an unrelated murder. Because Perkins had been formally charged
with aggravated assault, he had a right to counsel with respect
to that particular crime and the informants could do nothing to
interfere with that right. (34) Perkins had not, however, been
formally charged with, or even arrested for, the murder that
occurred in East St. Louis. Thus, the actions of the informants
that resulted in the acquisition of information about the murder
neither interfered with nor violated Perkins' sixth amendment
right to counsel. (35)
Listening post
Unlike the situation present in Perkins, if a cellmate
informant is placed with the intent of gathering information
about a crime that is the subject of formal charges against the
suspect, the only role the cellmate informant may play is that
of a listening post. The Supreme Court has determined that
simply placing an informant in the cell of a suspect who has
been formally charged does not, in and of itself, constitute a
sixth amendment violation. (36) Rather, there must be some
deliberate attempt on the part of the informant to elicit
information regarding those charges from the suspect. (37) It
is the act of deliberate elicitation that creates the sixth
amendment violation. Consequently, a law enforcement officer
who places an informant in the cell of a formally charged
suspect in an attempt to obtain information relating to those
charges should be prepared to demonstrate that there was no
deliberate elicitation on the part of the informant. (38) While
not impossible, demonstrating the lack of deliberate elicitation
may be very difficult indeed. United States v. Henry, (39)
which was decided in 1980, is a case in point.
After being indicted on charges of bank robbery, the
defendant in Henry was fortuitously placed in a cellblock with
Nichols, a long-time FBI informant. Upon discovering this fact,
FBI Agents instructed Nichols to refrain from questioning Henry
about the bank robbery but, if by chance the robbery was
mentioned, Nichols was told to pay close attention to what was
said. Eventually, Henry revealed his part in the bank robbery
to Nichols, who was thereafter called as a witness against him
at trial. On the basis of Nichols' testimony, Henry was
convicted and sentenced to 25 years in prison. Henry
subsequently appealed his conviction on the grounds that the use
of the cellmate informant's testimony against him violated his
sixth amendment right to counsel. Ultimately, Henry's case was
reviewed by the Supreme Court and his conviction was reversed.
The reversal of Henry's conviction was based on the Supreme
Court finding that the cellmate informant deliberately elicited
the information about the bank robbery from Henry. Despite the
fact that an FBI Agent testified that he directed the informant
to neither question nor initiate any conversation with Henry
regarding the bank robbery, the Court found deliberate
elicitation on the part of the informant. This finding was a
result of the Court's belief that an informant, who is paid on a
contingent-fee basis, would naturally be inclined to take
affirmative steps to secure information. Moreover, the Court
held that the government should have realized the likelihood of
such actions on the part of the informant, and merely
instructing him to the contrary was insufficient to negate the
presumption of deliberate elicitation.
In the wake of Henry, it appeared virtually impossible for
a law enforcement officer to convince the Court that there was
no deliberate elicitation on the part of a cellmate informant.
After all, every cellmate informant that is either paid or
promised special consideration works on a "contingent-fee" basis
and would be subject to the natural inclination to deliberately
elicit information referred to by the Court in Henry. However,
6 years after the decision in Henry, the Supreme Court gave law
enforcement officers new hope when it decided Kuhlmann v.
Wilson, (40) and shifted the burden of proving deliberate
elicitation clearly to the defendant.
The facts in Kuhlmann are substantially similar to those in
Henry in that a cellmate informant was used to gather
incriminating information from an indicted suspect who was
subsequently convicted on the strength of that informant's
testimony. Unlike Henry, however, the Supreme Court in Kuhlmann
found no deliberate elicitation on the part of the informant and
upheld the defendant's conviction. In doing so, the Court made
the following statement:
" `Since the Sixth Amendment is not violated whenever--by
luck or happenstance--the State obtains incriminating
statements from the accused after the right to counsel has
attached,' a defendant does not make out a violation of that
right simply by showing that an informant, either through
prior arrangement or voluntarily, reported his incriminating
statements to the police. Rather, the defendant must
demonstrate that the police and their informant took some
action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks." (41)
(emphasis added)
Even though the Court in Kuhlmann clearly placed the burden
of proving deliberate elicitation on the defense, lower courts
are undoubtedly going to look very closely at the actions and
motivations of the informant. (42) Obviously, many cellmate
informants are going to be less than completely credible on the
witness stand. Consequently, the law enforcement officer
should, if possible, be prepared to meet the defense claim of
deliberate elicitation with evidence other than the informant's
own testimony to the contrary. In Perkins, for example, the
case did not rest solely on the word of the informant because an
undercover agent was also placed in the cellblock with the
suspect. Other strategies could include using more than one
informant so there is corroborating testimony or planting a
listening device in the suspect's cell. If none of these options
are viable in a particular case, the law enforcement officer has
no other choice than to carefully select and instruct the
informant to ensure compliance with sixth amendment
requirements.
CONCLUSION
Apparently, confined suspects often have an overwhelming
desire to talk about their criminal activities with those they
consider their peers. Clearly, in light of the Supreme Court's
decision in Perkins, a law enforcement officer can take
advantage of this phenomenon by placing an informant in the
prison population. When doing so, however, the officer must be
ever mindful of the boundaries set by the fifth and sixth
amendments. Through thoughtful selection, careful planning, and
detailed instruction, the officer can ensure that an informant
operates within those boundaries and conforms to fifth and sixth
amendment standards.
FOOTNOTES
(1) Illinois v. Perkins, 110 S.Ct. 2394, 2397 (1990)
[hereinafter cited as Perkins].
(2) Perkins, supra note 1, at 2400 (Brennan, J., concurring).
(3) Perkins, supra note 1.
(4) People v. Perkins, 531 N.E.2d 141, 142 (Ill. App. 1988).
Charlton received no compensation for his cooperation with the
police.
(5) Perkins, supra note 1, at 2396.
(6) Miranda v. Arizona, 384 U.S. 436 (1966).
(7) People v. Perkins, supra note 4.
(8) U.S. Const. amend. V.
(9) 384 U.S. 436 (1966).
(10) Id. at 467.
(11) See, e.g., Berkemer v. McCarthy, 468 U.S. 420 (1984)
wherein the Supreme Court held Miranda inapplicable to traffic
stops. See also, New York v. Quarles, 467 U.S. 649 (1984)
recognizing a public safety exception to Miranda.
(12) Perkins, supra note 1, at 2397.
(13) Id. In Perkins, the Supreme Court used the words
"coercion" and "compulsion" interchangeably.
(14) In his concurring opinion, Justice Brennan suggested that
the use of a cellmate informant would violate Miranda, if the
suspect had previously invoked his fifth amendment right to
silence or right to counsel. Id., at 2399 n. ** (Brennan, J.,
concurring). It should be noted that no other members of the
Court voiced agreement with Justice Brennan on this point. In
fact, the reasoning of the majority in Perkins appears to
contradict Justice Brennan's statement. If the use of a cellmate
informant does not constitute custodial interrogation, then it
should not matter, for purposes of Miranda, whether incarcerated
suspects have previously invoked their rights or not. The
Miranda standard does not change when individuals invoke their
rights--only custodial interrogation is prohibited.
(15) U.S. Const. amend. V, supra note 8.
(16) Brown v. Mississippi, 297 U.S. 278 (1938).
(17) Id.
(18) 778 P.2d 602 (Ariz. 1988), cert. denied, 110 S.Ct. 1522
(1990) [hereinafter cited as Fulminate].
(19) The informant was also permitted to repeat a statement
defendant made almost a year after his initial confession. The
second statement was made when the informant, already released
from prison, and his girlfriend picked defendant up at a bus
station following defendant's release. The Arizona Supreme Court
suppressed the second statement, finding it a fruit of the
earlier due process violaton.
(20) Defendant also raised a Miranda objection. However, the
Arizona Supreme Court rejected that argument.
(21) Fulminate, supra note 18, at 609.
(22) 110 S.Ct. 1522 (1990).
(23) U.S. Const. amend. VI.
(24) Cuyler v. Sullivan, 100 S. Ct. 1708 (1980).
(25) United States v. Wade, 338 U.S. 218 (1967).
(26) In Weatherford v. Bursey, 429 U.S. 545 (1977), the
Supreme Court held that some interference with the right to
counsel may be justified.
(27) United States v. Gouveia, 104 S.Ct. 2292 (1984).
(28) Massiah v. United States, 377 U.S. 201 (1964).
(29) Id.
(30) Hoffa v. United States, 385 U.S. 293 1966) [hereinafter
cited as Hoffa].
(31) Kuhlmann v. Wilson, 106 S.Ct. 2616 (1986) [hereinafter
cited as Kuhlmann].
(32) Hoffa, supra note 30.
(33) Id.
(34) In Maine v. Moulton, 106 S.Ct. 477 (1985), the Supreme
Court held that the government could not use statements made by a
defendant to an informant about pending charges, even if acquired
during investigation of separate offenses.
(35) Perkins, supra note 1.
(36) Kuhlmann, supra note 31.
(37) Id.
(38) Although the burden of proof rests with the defendant on
this issue, the government should be prepared to counteract
claims of deliberate elicitation.
(39) 447 U.S. 264 (1980).
(40) Kuhlmann, supra note 36.
(41) Id. at 2630.
(42) See, e.g., United States v. Watson, 894 F.2d 1345 (D.C.
App. 1990); Endress v. Dugger, 880 F.2d 1244 (11th Cir. 1989);
State v. Fain, 774 P.2d 252 (Idaho 1989); State v. Robinson, 448
N.W.2d 386 (Neb. 1989); State v. Bruneau, 552 A.2d 585 (N.H.
1988); and State v. Mastrofine, 551 A.2d 1174 (R.I. 1988).
_______________
Law enforcement officers of other than Federal jurisdiction
who are interested in this article should consult their legal
adviser. Some police procedures ruled permissible under Federal
constitutional law are of questionable legality under State law
or are not permitted at all.