Lee v. Southern Home Sites Corporation Brief for Appellant

    No. 82-827

IN THE

Supreme Court of tfje Hmteb States
October Term, 1982

STATE OF MINNESOTA,

vs.
Petitioner,

MARSHALL DONALD MURPHY,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE MINNESOTA SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

MARK S. WERNICK 
1200 Builders Exchange 
609 Second Avenue South 
Minneapolis, Minnesota 55402 
(612) 339-6092 
Attorney for Respondent

1982-Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506



IN THE

Supreme Court of ttje Untteb States*
October Term, 1982

No. 82-827

STATE OF MINNESOTA,

vs.
Petitioner,

MARSHALL DONALD MURPHY,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE MINNESOTA SUPREME COURT

RESPONDENT’S BRIEF IN OPPOSITION

The Petitioner’s Statement of the Case adequately de­
scribes the procedural history in the Minnesota courts. 
The facts are set forth in the opinion of the Minnesota 
Supreme Court, which is appended to the certiorari petition 
(App. A) and reported at 324 N.W.2d 340 (Minn. 1982).



2

REASONS WHY THE WRIT SHOULD BE DENIED
I.

THE MINNESOTA SUPREME COURT APPLIED SETTLED 
PRINCIPLES OF FEDERAL CONSTITUTIONAL LAW TO 
ITS INTERPRETATION OF STATE LAW GOVERNING 
THE DUTIES OF THE PROBATION OFFICER AND TO 
ITS FACTUAL FINDING OF DECEPTION BY THE PRO­
BATION OFFICER.
The Respondent had been ordered by a Minnesota court 

to report to his probation officer as directed and to truth­
fully answer her questions (App. C-31-33). The Minnesota 
Supreme Court interpreted the state court’s probation or­
der to mean that if the Respondent failed to appear at the 
probation office as directed, then the Respondent would 
be in violation of the court order and subject to arrest and 
detention (App. A-10).

In Minnesota, a probation officer is “an official repre­
sentative of the [cjourt” (App. C-33) whose authority is 
derived exclusively from the court’s probation orders. The 
compulsory processes of the court are made available to 
probation officers solely for the purpose of keeping a sen­
tencing court advised of an individual’s progress while on 
probation (App. C-33-35). Minnesota law does not con­
template a probation officer using the court’s compulsory 
processes to initiate or substantiate criminal investigations 
(App. C-31-35).

The Minnesota Supreme Court made two factual findings 
which control the outcome of this case. First, the probation 
officer intentionally used the compulsory processes of the 
court for the purpose of gathering evidence for the police 
(App. A-3). Second, the probation officer repeatedly told



3

the Respondent that she was questioning him about the 
murder only because she was concerned about the Respon­
dent’s need for treatment during the remainder of his pro­
bation (App. A-3). The Minnesota Supreme Court found 
that the probation officer made this representation even af­
ter the Respondent said that he felt like calling a lawyer 
(App. A-3-4). The Respondent had been deceived as to the 
true nature of the compulsory interview (App. A-4).

The controlling constitutional principles in this case were 
set forth in Estelle v. Smith, 451 U.S. 454 (1981); and 
Gamer v. United States, 424 U.S. 648 (1976). In light of 
state law governing the role of a probation officer, the Min­
nesota Supreme Court correctly applied those settled con­
stitutional principles to this unique fact situation.

II.
THERE IS NO CONFLICT BETWEEN THE MINNESOTA SU­

PREME COURT’S DECISION AND THE DECISIONS OF 
OTHER APPELLATE COURTS.
The appellate decisions cited by the Petitioner do not 

conflict with the decision in this case.
In United States v. Miller, 643 F.2d 713 (10th Cir. 

1981); United States v. Holmes, 594 F.2d 1167 (8th Cir. 
1979); and State v. Roberts, 544 P.2d 754 (Wash.App. 
1976); the defendants’ admissions to their probation offi­
cers were held to be admissible at trial. In those cases, the 
probation officers were not deliberately attempting to in­
criminate the defendants for the purpose of initiating or 
substantiating a criminal investigation. In the instant case, 
that was the probation officer’s purpose. This factual dis­
tinction accounts for the different result in this case (App. 
A-10). See also, In Re Richard T., 79 Cal.App.3d 382, 
391, 144 Cal. Rptr. 856, 861 (1978).



4

In Alspach v. State, 440 N.E.2d 502 (Ind. App. 1982); 
and People v. W., 24 N.Y.2d 732, 302 N.Y.S.2d 260, 249 
N.E.2d 882 (1969); the defendants’ admissions to their 
probation officers were held to be admissible at probation 
revocation proceedings. This case concerns the admissibility 
of evidence at a criminal trial. If this case had involved a 
probation revocation hearing, then the Minnesota Supreme 
Court may have reached the same result as the Indiana and 
New York courts (App. A-7-8). There is no conflict be­
tween these decisions.

The two other New York cases cited by tihe Petitioner 
are trial court decisions. People v. Parker, 100 Misc.2d 
800, 421 N.Y.S.2d 561 (1979); People v. Alston, 79 Misc. 
2d 586, 360 N.Y.S.2d 768 (1974), Those decisions appear 
to conflict with the decision in this case. However, a more 
recent New York appellate case suppressed a custodial con­
fession made by a defendant to his parole officer even 
though the defendant had earlier been given Miranda warn­
ings. People v. Alston, 431 N.Y.S.2d 82 (App.Div. 1980). 
In reaching its decision, the New York appellate court em­
phasized the defendant’s legal obligation to answer his 
parole officer’s questions and the deceptive nature of the 
interrogation. The decision by the Minnesota Supreme 
Court was based on these same factors.

Similarly, in State v. Fields, 621 P.2d 651 (Ore.App. 
1980), reconsidered, 624 P.2d 655 (Ore.App. 1981); the 
probation officer used his authority in a deceptive way in 
order to obtain a confession for the police. Like the Minne­
sota Supreme Court, the Oregon appellate court suppressed 
the confession.



5

In summary, appellate courts have uniformly held that 
where probation officers use the courts’ compulsory proc­
esses in a deceptive way to obtain confessions for the po­
lice, then such confessions will not be admitted at a criminal 
trial. There is no conflict which requires resolution by this 
Court.

III.
THE PROBATION OFFICER FAILED TO HONOR THE AP­

PELLANT’S TIMELY ASSERTION OF THE PRIVILEGE 
AGAINST SELF-INCRIMINATION AND THEREFORE 
THIS COURT IS NOT LIKELY TO REACH THE QUES­
TION PRESENTED.
When the probation officer confronted the Respondent 

with the information she had received about the murder, 
the Respondent immediately said that he felt like calling 
an attorney (App. C-16, 20, 21, 26). The probation officer 
then told the Respondent that he would have to deal with 
an attorney outside the probation office because her main 
concern was the Respondent’s need for further treatment 
(App.C-9,16, 17).

At the hearing on the Respondent’s motion to suppress, 
the Respondent argued that the request for a lawyer consti­
tuted an assertion of the privilege which the probation of­
ficer was required to honor (App. B-6). The trial court did 
not discuss the issue (App. B-6-14).1 The Minnesota Su-

'The trial court only mentioned the Respondent’s request for an attorney 
during its discussion on voluntariness. The trial court said that he was 
“persuaded by the probation officer’s testimony” that the Respon­
dent’s request for an attorney was made in the context of a “civil 
suit” for breach of confidentiality (App. B-13, 14). The trial court’s 
reference to a civil suit was clearly erroneous (App. C-20, 21) and 
the Minnesota Supreme Court omitted the reference in its statement 
of the facts (App. A-3).



6

preme Court stated that it would not decide the issue (App. 
A-9).

A government official who has the power to compel an­
swers to questions cannot arbitrarily deny an individual’s 
request to consult with a lawyer. Maness v. Meyers, 419 
U.S. 449 (1975). See, United States v. Mandujano, 425 
U.S. 564, 581 (1976) (Burger, C J., plurality). Where a 
government official attempts to use its compulsory processes 
to incriminate an individual, a timely request for a lawyer 
constitutes an assertion of the privilege against self-incrim­
ination. Fare v. Michael C., 442 U.S. 707 (1979). See, 
Garner v. United States, 424 U.S. 648 (1976). Any objec­
tion to a question which can reasonably be construed as an 
attempt to invoke the privilege must be honored. Miranda 
v. Arizona, 384 U.S. 436, 444-45 (1966) (can request a 
lawyer “in any manner”); Quinn v. United States, 349 U.S. 
155, 162-63 (1955) (can assert the privilege “in any lan­
guage”); Emspak v. United States, 349 U.S. 190 (1955); 
Maglio v. Jago, 580 F.2d 202 (6th Cir. 1978); United 
States v. Goodwin, 470 F.2d 893 (5th Cir.), cert, denied, 
411 U.S. 969 (1972); United States v. Prestigiacomo, 504 
F.Supp. 681 (E.D.N.Y. 1981); Schwartz v. Secretary of 
Treasury, 364 F.Supp. 344 (D.C.D.C. 1973).

In this case, the probation officer was an “official repre­
sentative of the [cjourt” (App. C-33) who had the power 
to compel answers from the Respondent (App. C-32, 34). 
The probation officer knew those answers would be in­
criminating in nature (App. A-3). Compare, Garner v. 
United States, 424 U.S. 648 (1976). Prior to answering 
any questions, the Respondent clearly stated that he felt 
like calling an attorney (App. A-3). He thereby invoked 
the privilege against seif-incrimination. The Respondent’s



7

assertion of the privilege was ignored by the probation offi­
cer and the subsequent confession is inadmissible at trial.

Based on the foregoing, the result reached by the Minne­
sota Supreme Court was correct regardless of whether the 
self-incrimination clause is self-executing under the facts 
of this case. The Respondent asserted the privilege and 
therefore this Court need not address the question present­
ed.

CONCLUSION
For these reasons, the petition for writ of certiorari 

should be denied.

Respectfully submitted,

MARK S. WERNICK 
1200 Builders Exchange 
609 Second Avenue South 
Minneapolis, Minnesota 55402 
(612)339-6092 
Attorney for Respondent