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A CONSTITUTIONAL GUIDE TO THE USE OF CELLMATE INFORMANTS
By Kimberly A. Crawford, J.D., 12/95
[Special Agent Crawford is a legal instructor at the FBI Academy.]
Over the 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 agree that the use of
cellmate informants is an investigative technique that works very well
in many cases.
In the 1990 case of Illinois v. Perkins,3 the U.S. Supreme Court, while
not resolving the debate, answered an important question regarding the
constitutionality of using cellmate informants. Specifically, the Court
held that the use of cellmate informants does not violate the Miranda4
rule. This decision appeared to clear the way for law enforcement to
take advantage of this very effective investigative technique.
However, the permissible use of cellmate informants was again questioned
when Perkins subsequently argued successfully in State court that the
use of the technique violated his previously invoked Miranda right to
counsel.5 Because the Supreme Court refused to hear the case a second
time,6 the extent to which cellmate informants can be used lawfully
against suspects who have earlier invoked a right to counsel remains
open to debate in both lower Federal courts and State courts.
This article reviews the decisions in Perkins and examines subsequent
cases dealing with the question left unresolved by the Supreme Court. It
then provides a guide to the constitutional use of cellmate informants.
FIFTH AMENDMENT SELF-INCRIMINATION CLAUSE
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...."7 Over two decades ago, the Supreme Court in Miranda v.
Arizona8 held that custodial interrogation of an individual creates a
psychologically compelling atmosphere that works against this fifth
amendment protection.9 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, and the rights
they embody be waived, prior to the initiation of custodial
interrogation. This rule, however, is not absolute.
In Illinois v. Perkins,10 the Supreme Court recognized that there are
limitations to the rule announced in Miranda. The defendant in Perkins
was imprisoned in a State correctional facility on an assault charge,
when a former fellow inmate and an undercover officer were placed in his
cellblock in an attempt to gather information about a murder Perkins was
believed to have committed. When discussing the possibility of a prison
break, the undercover officer responded to Perkins' claim that he could
smuggle in a gun by asking Perkins whether he had ever "done" anyone. In
reply, Perkins described at length a murder for hire he had committed.
The following day, Perkins was charged with murder.
Prior to trial, Perkins moved to suppress the statements made to the
undercover officer. Because no Miranda warnings had been given to
Perkins prior to his conversation with the undercover officer, the
trial court granted Perkins' motion to suppress. The Appellate Court of
Illinois, holding that all undercover contacts with prisoners that are
likely to elicit incriminating responses violate the rule in Miranda,
affirmed the suppression order.11
The U.S. Supreme Court reversed the appellate court's decision and
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
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 the undercover
officer 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 whom he believed to be his
fellow inmates. Miranda was not designed to protect individuals from
themselves. Consequently, the Court held there was no violation of
Miranda and remanded the case to the Illinois courts for further
On remand, Perkins moved once again to have his statements suppressed.
Perkins' new motion was based on an allegation that, when arrested on
the assault charge, he was advised of his rights and requested an
attorney. Therefore, Perkins argued the statements subsequently made to
the undercover officer violated his Miranda right to counsel as
delineated in Minnick v. Mississippi.14
The Minnick Rule
When Miranda warnings are given to individuals in custody who then
invoke either their rights to silence or counsel, all interrogation must
cease immediately.15 Whether, and under what conditions, law enforcement
officers subsequently may attempt to reinterrogate those individuals
depends on which rights have been invoked.
In Michigan v. Mosley,16 the Supreme Court essentially interpreted the
invocation of the right to silence as a request for time so suspects
could think clearly about the situation. If that initial request is
scrupulously honored, the Court held that attempts to reinterrogate may
occur if suspects are afforded the time requested, or if they indicate,
by initiating communications, that they have had enough time to think
and now wish to talk.
As a result, reinterrogations following an invocation of the right to
silence are deemed appropriate if: 1) A reasonable period of time has
elapsed;17 or 2) interrogation was initiated by the suspect. In either
case, any renewed attempt to interrogate a suspect must be preceded by a
waiver of Miranda rights.
An invocation of the right to counsel, on the other hand, necessarily
carries with it a different set of procedural safeguards. Obviously,
suspects invoking the right to counsel are not simply asking for time to
assess the situation; they are, instead, requesting the assistance of an
In Minnick, the Court concluded that this invocation of the right to
counsel is not satisfied by giving the suspect the opportunity to
consult with an attorney. Rather, the Court held that any attempt to
interrogate a custodial suspect once that individual has invoked the
right to counsel is unlawful unless: 1) The suspect's attorney is
actually present; or 2) the suspect changes his mind and reinitiates the
Moreover, the protections afforded suspects who invoke their right to
counsel remain in effect as long as they remain in custody. These
protections are not crime specific19 because the invocation implies that
suspects are not willing to deal with law enforcement on any criminal
matter without the benefit of counsel for as long as they remain in
Claiming a prior invocation of his right to counsel when first arrested
on the assault charge, Perkins argued that the undercover officer's
question "have your ever 'done' anyone"amounted to reinterrogation in
violation of the rule established in Minnick. Agreeing with Perkins, the
Illinois courts granted the motion to suppress. When the Supreme Court
refused the government's request to hear the case a second time, the
question of whether cellmate informants could lawfully be used following
an invocation of the right to counsel was relegated, at least
temporarily, to the lower courts.
Application of Minnick to Cellmate Informants in Federal Courts Since
the Supreme Court decided the first Perkins case, three Federal courts
of appeals21 have addressed the issue raised by Perkins on remand. In
direct opposition to the Illinois courts, all three Federal courts
concluded that an invocation of the Miranda right to counsel is not a
bar to the subsequent use of a cellmate informant. Although unanimous in
their decisions, the three Federal courts are not in complete agreement
as to the reasons for reaching this conclusion.
Two of the three Federal courts of appeals reached their conclusion by
interpreting the Supreme Court's decision in Perkins as excluding the
use of cellmate informants from the definition of interrogation for
purposes of Miranda.22 The case of United States v. Stubbs23 is
In Stubbs, the defendant was arrested when a customs official found
cocaine on Edwards, her traveling companion. Following the arrest,
defendant was advised of her Miranda rights and immediately invoked the
right to counsel. Edwards, on the other hand, immediately confessed and
agreed to assist the government in its case against defendant.
While incarcerated together, defendant reportedly told Edwards during a
conversation that she would have to "take the rap" for defendant, but
that defendant would take care of Edward's children. Edwards later
testified regarding this conversation, and defendant was convicted.
On appeal, defendant claimed the use of her friend as a cellmate
informant was interrogation in violation of her fifth amendment right to
counsel invoked when she received her Miranda warnings. In support of
her claim, defendant relied on the Supreme Court's language in Rhode
Island v. Innis,24 which defined interrogation as "not only...express
questioning, but also...any words or actions on the part of the
police...that the police should know are reasonably likely to elicit an
incriminating response from the suspect."25 Because law enforcement
officers should have known that placing Edwards in her cell was
"reasonably likely to elicit an incriminating response," defendant
argued that the tactic was reinterrogation in violation of her invoked
right to counsel.
The U.S. Court of Appeals for the 11th Circuit, however, noted that any
determination of whether law enforcement activity amounts to
interrogation must "focus primarily upon the perceptions of the suspect,
rather than the intent of the police."26 Reading the Supreme Court's
decision in Perkins as a further refinement of the definition of
interrogation, the court of appeals concluded that the use of cellmate
informants does not amount to interrogation because no compulsion is
perceived by the suspect.27
A third Federal court of appeals reached the conclusion that an
invocation of the Miranda right to counsel is not a bar to the use of
cellmate informants by a more direct approach. In Alexander v. State,28
the Court of Appeals for the Second Circuit, when confronted with
defendant's claim that he had invoked his Miranda right to counsel prior
to the government's use of a cellmate informant, regarded the claim as
irrelevant and made the following statement:
Regardless of whether Alexander properly invoked his right to counsel,
there is no support for the concept of a fifth amendment right to
counsel which bars conduct not prohibited by Miranda itself. It is the
fifth amendment's prohibition against compelled self-incrimination which
provides the constitutional underpinning for the prophylactic Miranda
rules, including notice of the right to counsel. Absent a police
dominated interrogation, the fifth amendment right to counsel does not
Despite the fact that the Federal courts are not in agreement as to why
the invocation of the Miranda right to counsel does not bar the
subsequent use of cellmate informants, the logic of their conclusion is
sound. Knowing, as a result of Perkins, that the use of a cellmate
informant does not violate Miranda, it would be incongruous to hold that
the technique violates Minnick, which is merely an interpretation of the
rights guaranteed in Miranda.
When considering the use of a cellmate informant, however, law
enforcement officers should be mindful that this issue remains
unresolved by the Supreme Court and may be deemed unlawful by State
courts following the reasoning of the Illinois court in Perkins.
Therefore, the use of cellmate informants after an invocation of the
right to counsel should be reviewed by a legal advisor or prosecutor to
ensure the technique is legal in a particular jurisdiction.
FIFTH AMENDMENT--DUE PROCESS
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."30 The due
process clause has been interpreted by the Supreme Court as requiring
that all defendants in criminal prosecutions be treated with fundamental
With respect to confessions, the Court has held that to be fair, a
confession must be voluntary.32 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
On the other hand, no unfairness or due process violation would result
from the use of an uncoerced statement voluntarily made by the suspect.
By their very nature, cell-mate informants are not generally considered
coercive. The very reason suspects confide in cellmate informants is
because suspects feel comfortable with them.
However, it is conceivable that an overzealous cellmate informant may
violate a suspect's due process rights by gathering information through
the use of threats or abuse.33 To avoid due process problems, law
enforcement officers should select cellmate informants carefully and
provide those individuals with clear instructions to ensure that nothing
is done to coerce the suspect into making an involuntary statement.
SIXTH AMENDMENT--RIGHT TO COUNSEL
Another constitutional concern confronting law enforcement officers
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."34
The Supreme Court has interpreted the sixth amendment as guaranteeing
not merely the right to counsel, but more important, the right to the
effective assistance of counsel.35 To be effective, an attorney must be
permitted to form a relationship with the accused some time prior to
trial,36 and the government cannot interfere needlessly with that
relationship. Thus, to resolve all sixth amendment concerns, law
enforcement officers 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 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. The Supreme 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
If no formal charges have been filed against the suspect and no initial
appearance before the court has been conducted, no critical stage in the
prosecution has been reached, and a cellmate informant can be used
without concern for the suspect's sixth amendment right to counsel. If,
on the other hand, a critical stage has been reached, 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
Postcritical 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 perform lawfully without
interfering with that suspect's right to counsel. These two functions
are: 1) Gathering information regarding an unrelated crime,38 or 2)
acting as a listening post.39
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.40 Under the sixth amendment, a
suspect only has the right to the assistance of counsel with respect to
the crimes formally charged against him.41 If 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.
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.42 Rather,
there must be some deliberate attempt to elicit information regarding
those charges from the suspect.43
It is the act of deliberate elicitation that creates the sixth amendment
violation. Consequently, a law enforcement officer who places an
informant in a 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
Confined suspects often have an overwhelming desire to talk about their
criminal activities with those they consider their peers. Law
enforcement officers can take advantage of this phenomenon by placing an
informant in the prison population. When doing so, however, officers
must be ever mindful of the boundaries set by the fifth and sixth
amendments. Thoughtful selection, careful planning, and detailed
instruction can ensure that an informant operates within those
boundaries and conforms to fifth and sixth amendment standards.
1 Illinois v. Perkins, 110 S.Ct. 2394, 2397 (1990).
2 110 S.Ct. 2394, 2400 (Brennan, J., concurring).
3 110 S.Ct. 2394 (1990).
4 Miranda v. Arizona, 384 U.S. 436 (1966).
5 People v. Perkins, 618 N.E.2d 1275 (Ill. App. 1993).
6 Illinois v. Perkins, 114 S.Ct. 2692 (1994)(cert. denied).
7 U.S. CONST. amend. V.
8 384 U.S. 436 (1966).
9 Id. at 467.
10 110 S.Ct. 2394 (1990).
11 People v. Perkins, 531 N.E.2d 141 (Ill. App. 1988).
12 110 S.Ct. 2394, 2397 (1990).
13 Id. In Perkins, the Supreme Court used the words "coercion" and
14 111 S.Ct. 486 (1990). Perkins actually claimed that the actions of
the government violated Edwards v. Arizona, 101 S.Ct. 1885 (1981).
However, because Minnick is a more recent interpretation of the Edwards
rule and was in effect at the time of Perkins' motion, this article will
analyze the motion under the Supreme Court's decision in Minnick.
15 384 U.S. 436, 474 (1966).
16 423 U.S. 96 (1975).
17 In Mosley, 2 hours were considered to be a sufficient period of time.
18 In Minnick, the Court stated that "Edwards does not foreclose finding
a waiver of Fifth Amendment protections after counsel has been
requested, provided the accused has initiated the conversation or
discussions with the authorities...." 111 S.Ct. 486 at 492.
19 See, Arizona v. Roberson, 108 S.Ct. 2093 (1988), where the Supreme
Court held that the assertion of the right to counsel is effective
against all topics of custodial interrogation.
20 In a prison setting, the perpetuality of this rule could make it
virtually impossible to conduct routine interrogations of inmates
suspected of committing new crimes without having an attorney on hand to
represent the inmates' interests.
21 Alexander v. State, 917 F.2d 747 (2d Cir. 1990); United States v.
Stubbs, 944 F.2d 828 (11th Cir. 1991); and Salkil v. Delo, 990 F.2d 386
(8th Cir. 1993).
22 United States v. Stubbs, 944 F.2d 828 (11th Cir. 1991), and Salkil v.
Delo, 990 F.2d 386 (8th Cir. 1993).
23 944 F.2d 828 (11th Cir. 1991).
24 100 S.Ct. 1682 (1980).
25 Id. at 1689-1690.
26 Id. at 1690.
27 944 F.2d. 828 at 832.
28 917 F.2d 747 (2d. Cir. 1990).
29 Id. at 751 (citations omitted).
30 U.S. Const. amend. V.
31 Brown v. Mississippi, 297 U.S. 278 (1938).
33 See, e.g., Arizona v. Fulminate, 111 S.Ct. 1246 (1991).
34 U.S. CONST. amend. VI.
35 Cuyler v. Sullivan, 100 S.Ct. 1708 (1980).
36 United States v. Wade, 338 U.S. 218 (1967).
37 Massiah v. United States, 377 U.S. 201 (1964).
38 Hoffa v. United States, 385 U.S. 293 (1966).
39 Kuhlmann v. Wilson, 106 S.Ct. 2616 (1986).
40 385 U.S. 293 (1966).
42 106 S.Ct. 2616 (1986).
44 Although the burden of proof rests with the defendant on this issue,
the government should be prepared to counteract claims of deliberate
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