Michigan v. Mosley
Opinion of the Court
delivered the opinion of the Court.
The respondent, Richard Bert Mosley, was arrested in Detroit, Mich., in the early afternoon of April 8, 1971, in connection with robberies that had recently occurred at the Blue Goose Bar and the White Tower Restaurant on that city’s lower east side. The arresting officer, Detective James Cowie of the Armed Robbery Section of the Detroit Police Department, was acting on a tip implicating Mosley and three other men in the robberies.
Shortly after 6 p. m., Detective Hill of the Detroit
Mosley was subsequently charged in a one-count information with first-degree murder. Before the trial he moved to suppress his incriminating statement on a number of grounds, among them the claim that under the doctrine of the Miranda case it was constitutionally
On appeal to the Michigan Court of Appeals, Mosley renewed his previous objections to the use of his incriminating statement in evidence. The appellate court reversed the judgment of conviction, holding that Detective Hill’s interrogation of Mosley had been a per se violation of the Miranda doctrine. Accordingly, without reaching Mosley’s other contentions, the Court remanded the case for a new trial with instructions that Mosley’s statement be suppressed as evidence. 51 Mich. App. 105, 214 N. W. 2d 564. After further appeal was denied by the Michigan Supreme Court, 392 Mich. 764, the State filed a petition for certiorari here. We granted the writ because of the important constitutional question presented. 419 U. S. 1119.
In the Miranda case this Court promulgated a set of safeguards to protect the there-delineated constitutional rights of persons subjected to custodial police interrogation. In sum, the Court held in that case that unless law enforcement officers give certain specified warnings be
Neither party in the present case challenges the continuing validity of the Miranda decision, or of any of the so-called guidelines it established to protect what the Court there said was a person’s constitutional privilege against compulsory self-incrimination. The issue in this case, rather, is whether the conduct of the Detroit police that led to Mosley’s incriminating statement did in fact violate the Miranda “guidelines,” so as to render the statement inadmissible in evidence against Mosley at his trial. Resolution of the question turns almost entirely on the interpretation of a single passage in the Miranda opinion, upon which the Michigan appellate court relied in finding a per se violation of Miranda:
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody*101 interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” 384 U. S., at 473-474.7
This passage states that “the interrogation must cease” when the person in custody indicates that “he wishes to remain silent.” It does not state under what circumstances, if any, a resumption of questioning is permissible.
It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, 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. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any
A 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 . . . 384 U. S., at 479. The critical safeguard identified in the passage at issue is a person’s “right to cut off questioning.” Id., at 474. Through the exercise of his option to terminate questioning he can control the time at
A review of the circumstances leading to Mosley’s confession reveals that his “right to cut off questioning” was fully respected in this case. Before his initial interrogation, Mosley was carefully advised that he was under no obligation to answer any questions and could remain silent if he wished. He orally acknowledged that he understood the Miranda warnings and then signed a printed notification-of-rights form. When Mosley stated that he did not want to discuss the robberies, Detective Cowie immediately ceased the interrogation and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation. He was thus reminded again that he could remain silent and could consult with a lawyer,
This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to
The Michigan Court of Appeals viewed this case as factually similar to Westover v. United States, 384 U. S. 436, a companion case to Miranda. But the controlling facts of the two cases are strikingly different.
In Westover, the petitioner was arrested by the Kansas City police at 9:45 p. m. and taken to the police station. Without giving any advisory warnings of any kind to Westover, the police questioned him that night and throughout the next morning about various local robberies. At noon, three FBI agents took over, gave advisory warnings to Westover, and proceeded to question him about two California bank robberies. After two hours of questioning, the petitioner confessed to the California crimes. The Court held that the confession obtained by the FBI was inadmissible because the interrogation leading to the petitioner’s statement followed on the heels of prolonged questioning that was commenced and continued by the Kansas City police without preliminary warnings to Westover of any kind. The Court found that “the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation” and that the belated warnings given by the federal officers were “not sufficient to protect” West-over because from his point of view “the warnings came at the end of the interrogation process.” Id., at 497, 496.
Here, by contrast, the police gave full “Miranda warnings” to Mosley at the very outset of each interrogation, subjected him to only a brief period of initial question
For these reasons, we conclude that the admission in evidence of Mosley’s incriminating statement did not violate the principles of Miranda v. Arizona. Accordingly, the judgment of the Michigan Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
The officer testified that information supplied by an anonymous caller was the sole basis for his arrest of Mosley.
The original tip to Detective Cowie had, however, implicated Mosley in the Williams murder.
During cross-examination by Mosley’s counsel at the evidentiary hearing, Detective Hill conceded that Smith in fact had not confessed but had “denied a physical participation in the robbery.”
But see n. 5, injra.
In addition to the claim that Detective Hill’s questioning violated Miranda, Mosley contended that the statement was the product of an illegal arrest, that the statement was inadmissible because he had not been taken before a judicial officer without unnecessary delay, and that it had been obtained through trickery and promises of leniency. He argued that these circumstances, either independently or in combination, required the suppression of his incriminating statement.
The warnings must inform the person in custody “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 384 U. S., at 444.
The present case does not involve the procedures to be followed if the person in custody asks to consult with a lawyer, since Mosley made no such request at any time. Those procedures are detailed in the Miranda opinion as follows:
“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.
“This does not mean, as some have suggested, that each police station must have a 'station house lawyer’ present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person’s Fifth Amendment privilege so long as they do not question him during that .time.” Id., at 474.
The Court did state in a footnote:
“If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and
This footnote in the Miranda opinion is not relevant to the present case, since Mosley did not have an attorney present at the time he declined to answer Detective Cowie’s questions, and the officer did not continue to question Mosley but instead ceased the interrogation in compliance with Miranda’s dictates.
It is instructive to note that the vast majority of federal and state courts presented with the issue have concluded that the Miranda opinion does not create a per se proscription of any further interrogation once the person being questioned has indicated a desire to remain silent. See Hill v. Whealon, 490 F. 2d 629, 630, 635 (CA6 1974); United States v. Collins, 462 F. 2d 792, 802 (CA2 1972) (en banc); Jennings v. United States, 391 F. 2d 512, 515-516 (CA5 1968); United States v. Choice, 392 F. Supp. 460, 466-467 (ED Pa. 1975); McIntyre v. New York, 329 F. Supp. 9, 13-14 (EDNY 1971); People v. Naranjo, 181 Colo. 273, 277-278, 509 P. 2d 1235, 1237 (1973); People v. Pittman, 55 Ill. 2d 39, 54-56, 302 N. E. 2d 7, 16-17 (1973); State v. McClelland, 164 N. W. 2d 189, 192-196 (Iowa 1969); State v. Law, 214 Kan. 643, 647-649, 522 P. 2d 320, 324-325 (1974); Conway v. State, 7 Md. App. 400, 405-411, 256 A. 2d 178, 181-184 (1969); State v. O’Neill, 299 Minn. 60, 70-71, 216 N. W. 2d 822, 829 (1974); State v. Godfrey, 182 Neb. 451, 454-457, 155 N. W. 2d 438, 440-442 (1968); People v. Gary, 31 N. Y. 2d 68, 69-70, 286 N. E. 2d 263, 264 (1972); State v. Bishop, 272 N. C. 283, 296-297, 158 S. E. 2d 511, 520 (1968); Commonwealth v. Grandison, 449 Pa. 231, 233-234, 296 A. 2d 730, 731 (1972); State v. Robinson, 87 S. D. 375, 378, 209 N. W. 2d 374, 375-377 (1973); Hill v. State, 429 S. W. 2d 481, 486-487 (Tex. Crim. App. 1968); State v. Estrada, 63 Wis. 2d 476, 486-488, 217 N. W. 2d 359, 365-366 (1974). See also People v. Fioritto, 68 Cal. 2d 714, 717-720, 441 P. 2d 625, 626-628 (1968) (permitting the suspect but not the police to initiate further questioning).
Citation of the above cases does not imply a view of the merits of any particular decision.
The dissenting opinion asserts that Miranda established a requirement that once a person has indicated a desire to remain silent, questioning may be resumed only when counsel is present. Post, at 116-117. But clearly the Court in Miranda imposed no such requirement, for it distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that “the interrogation must cease until an attorney is present” only “[i]f the individual states that he wants an attorney.” 384 U. S., at 474.
Detective Cowie gave the only testimony at the suppression hearing concerning the scope of Mosley’s earlier refusal to answer his questions:
“A. I think at that time he declined to answer whether he had been involved.
“Q. He declined to answer?
“A. Yes. Anything about the robberies.”
At the suppression hearing, Mosley did not in any way dispute Cowie’s testimony. Not until trial, after the judge had denied the motion to suppress the incriminating statement, did Mosley offer a somewhat different version of his earlier refusal to answer Detective Cowie’s questions. The briefs submitted by Mosley’s counsel to the Michigan Court of Appeals and to this Court accepted Detective Cowie’s account of the interrogation as correct, and the Michigan Court of Appeals decided the case on that factual premise. At oral argument before this Court, both counsel discussed the case solely in terms of Cowie’s description of the events.
Concurring Opinion
concurring in the result.
I concur in the result and in much of the majority’s reasoning. However, it appears to me that, in an effort to make only a limited holding in this case, the majority has implied that some custodial confessions will be suppressed even though they follow an informed and voluntary waiver of the defendant’s rights. The majority seems to say that a statement obtained within some unspecified time after an assertion by an individual of his “right to silence” is always inadmissible, even if it was the result of an informed and voluntary decision — following, for example, a disclosure to such an individual of a piece of information bearing on his waiver decision which the police had failed to give him prior to his assertion of the privilege but which they gave him immediately thereafter. Indeed, ante, at 102, the majority char
Miranda holds that custody creates an inherent compulsion on an individual to incriminate himself in response to questions, and that statements obtained under such circumstances are therefore obtained in violation of the Fifth Amendment privilege against compelled testimonial self-incrimination unless the privilege is “knowingly and intelligently waived.” Id., at 471, 475. It also holds that an individual will not be deemed to have made a knowing and intelligent waiver of his “right to silence” unless the authorities have first informed him, inter alia, of that right — “the threshold requirement for an intelligent decision as to its exercise.” Id., at 468. I am no more convinced that Miranda was required by the United States Constitution than I was when it was decided. However, there is at least some support in the law both before and after Miranda for the proposition that some rights will never be deemed waived unless the defendant is first expressly advised of their existence. E. g., Carnley v. Cochran, 369 U. S. 506 (1962); Boykin v. Alabama, 395 U. S. 238 (1969); Fed. Rules Crim. Proc. 11, 32 (a)(2). There is little support in the law or in common sense for the proposition that an informed waiver of a right may be ineffective even where voluntarily made. Indeed, the law is exactly to the contrary, e. g., Tollett v. Henderson, 411 U. S. 258 (1973); Brady v. United States, 397 U. S. 742 (1970); McMann v. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970). Unless an individual is
The language of Miranda no more compels such a result than does its basic rationale. As the majority points out, the statement in Miranda, 384 U. S., at 474, requiring interrogation to cease after an assertion of the “right to silence” tells us nothing because it does not indicate how soon this interrogation may resume. The Court showed in the very next paragraph, moreover, that when it wanted to create a per se rule against further interrogation after assertion of a right, it knew how to do so. The Court there said “[i]f the individual states that he
In justifying the implication that questioning must inevitably cease for some unspecified period of time following an exercise of the “right to silence,” the ma
The majority’s rule may cause an accused injury. Although a recently arrested individual may have indicated an initial desire not to answer questions, he would nonetheless want to know immediately — if it were true — that his ability to explain a particular incriminating fact or to supply an alibi for a particular time period would result in his immediate release. Similarly, he might wish to know — if it were true — that (1) the case against him was unusually strong and that (2) his immediate cooperation with the authorities in the apprehension and conviction of others or in the recovery of property would redound to his benefit in the form of a reduced charge. Certainly the individual’s lawyer, if he had one, would be interested in such information, even if communication of such information followed closely on an assertion of the “right to silence.” Where the individual has not requested counsel and has chosen instead to make his own decisions regarding his conversations with the authorities, he should not be deprived even temporarily of any information relevant to the decision.
The question of the proper procedure following expression by an individual of his desire to consult counsel is not presented in this case. It is sufficient to note that the reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism.
Dissenting Opinion
with whom Mr. Justice Marshall joins, dissenting.
The Court focuses on the correct passage from Miranda v. Arizona, 384 U. S. 436, 473-474 (1966) (footnote omitted):
“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to*112 cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.”
But the process of eroding Miranda rights, begun with Harris v. New York, 401 U. S. 222 (1971), continues with today’s holding that police may renew the questioning of a suspect who has once exercised his right to remain silent, provided the suspect’s right to cut off questioning has been “scrupulously honored.” Today’s distortion of Miranda’s constitutional principles can be viewed only as yet another step in the erosion and, I suppose, ultimate overruling of Miranda’s enforcement of the privilege against self-incrimination.
The Miranda guidelines were necessitated by the inherently coercive nature of in-custody questioning. As in Escobedo v. Illinois, 378 U. S. 478 (1964), “we sought a protective device to dispel the compelling atmosphere of the interrogation.” 384 U. S., at 465. We “concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id., at 467.
The task that confronts the Court in this case is to satisfy the Miranda approach by establishing “concrete constitutional guidelines” governing the resumption of questioning a suspect who, while in custody, has once clearly and unequivocally “indicate [d] . . . that he wishes to remain silent . . . .” As the Court today continues to recognize, under Miranda, the cost of assuring voluntariness by procedural tests, independent of any actual inquiry into voluntariness, is that some voluntary statements will be excluded. Ante, at 99-100. Thus the consideration in the task confronting the Court is not whether voluntary statements will be excluded, but whether the procedures approved will be sufficient to assure with reasonable certainty that a confession is not obtained under the influence of the compulsion inherent, in interrogation and detention. The procedures approved by the Court today fail to provide that assurance.
We observed in Miranda: “Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion
In formulating its procedural safeguard, the Court skirts the problem of compulsion and thereby fails to join issue with the dictates of Miranda. The language which the Court finds controlling in this ease teaches that renewed questioning itself is part of the process which invariably operates to overcome the will of a suspect. That teaching is embodied in the form of a proscription on any further questioning once the suspect has exercised his right to remain silent. Today’s decision uncritically abandons that teaching. The Court assumes, contrary to the controlling language, that “scrupulously honoring” an initial exercise of the right to remain silent preserves the efficaciousness of initial and future warnings despite the fact that the suspect has once been subjected to interrogation and then has been detained for a lengthy period of time.
Observing that the suspect can control the circumstances of interrogation “[tjhrough the exercise of his option to terminate questioning,” the Court concludes “that the admissibility of statements obtained after the person in custody has decided to remain silent depends ...
I agree that Miranda is not to be read, on the one hand, to impose an absolute ban on resumption of questioning “at any time or place on any subject,” ante, at 102, or on the other hand, “to permit a resumption of interrogation after a momentary respite,” ibid. But this surely cannot justify adoption of a vague and ineffective procedural standard that falls somewhere between those absurd extremes, for Miranda in flat and unambiguous terms requires that questioning “cease” when a suspect exercises the right to remain silent. Miranda’s terms, however, are not so uncompromising as to preclude the fashioning of guidelines to govern this case. Those guidelines must, of course, necessarily be sensitive to the reality that “[a]s a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investiga
The fashioning of guidelines for this case is an easy task. Adequate procedures are readily available. Michigan law requires that the suspect be arraigned before a judicial officer “without unnecessary delay,”
Indeed, language in Miranda suggests that the
“If an individual indicates his desire to remain silent but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements.” Id., at 474 n. 44 (emphasis added).
This was the only circumstance in which we at all suggested that questioning could be resumed, and even then, further questioning was not permissible in all such circumstances, for compulsion was still the presumption not easily dissipated.
My concern with the Court’s opinion does not end with its treatment of Miranda, but extends to its treatment of the facts in this case. The Court’s effort to have the Williams homicide appear as “an unrelated holdup murder,” ante, at 104, is patently unsuccessful. The anonymous tip received by Detective Cowie, conceded by the Court to be the sole basis for Mosley’s arrest, ante, at 97 n. 1, embraced both the robberies covered in Cowie’s in
I also find troubling the Court’s finding that Mosley never indicated that he did not want to discuss the robbery-murder, see ante, at 104-106. I cannot read Cowie’s testimony as the Court does. Cowie testified that Mosley
In light of today’s erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. See Oregon v. Hass, 420 U. S. 714, 719 (1975);
The Court said further:
“Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” 384 U. S., at 458.
Mich. Comp. Laws §§ 764.13, 764.26 (1970); Mich. Stat. Ann. §§28.871 (1), 28.885 (1972). Detective Cowie’s testimony indicated that a judge was available across the street from the police station in which Mosley was held from 2:15 p. m. until 4 p. m. or 4:30 p. m. App. 13. The actual interrogation of Mosley, however, covered only 15 or 20 minutes of this time. Id., at 14. The failure to comply with a simple state-law requirement in these circumstances is totally at odds with the holding that the police “scrupulously honored” Mosley’s rights.
In addition, a break in custody for a substantial period of time would permit — indeed it would require — law enforcement officers to give Miranda warnings a second time.
I do not mean to imply that counsel may be forced on a suspect who does not request an attorney. I suggest only that either arraignment or counsel must be provided before resumption of questioning to eliminate the coercive atmosphere of in-custody interrogation. The Court itself apparently proscribes resuming questioning until counsel is present if an accused has exercised the right to have an attorney present at questioning. Ante, at 101 n. 7.
The Court asserts that this language is not relevant to the present case, for “Mosley did not have an attorney present at the time he declined to answer Detective Cowie’s questions.” Ante, at 102 n. 8. The language, however, does not compel a reading that it is applicable only if counsel is present when the suspect initially exercises his right to remain silent. Even if it did, this would only indicate that Miranda placed even stiffer limits on the circumstances when questioning may be resumed than I suggest here. Moreover, since the concern in Miranda was with assuring the absence of compulsion upon renewed questioning, it makes little difference whether counsel is initially present. Thus, even if the language does not specifically address the situation where counsel is not initially present, it certainly contemplates that situation.
The Court also asserts that Miranda “directed that ‘the interrogation must cease until an attorney is present’ only ‘[i]f the individual states that he wants an attorney.’ ” Ante, at 104 n. 10
I do not suggest that the Court’s opinion is to be read as permitting unreasonably lengthy detention without arraignment so long as any exercise of rights by a suspect is “scrupulously honored.” The question of whether there is some constitutional limitation on the length of time police may detain a suspect without arraignment, cf. Gerstein v. Pugh, 420 U. S. 103 (1975); Mallory v. United States, 354 U. S. 449 (1957); McNabb v. United States, 318 U. S. 332 (1943), is an open one and is not now before the Court.
See Westover v. United States, 384 U. S. 436, 494 (1966), where Westover confessed after being turned over to the FBI following questioning by local police. We said:
“Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning....
“We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station — in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege.” Id., at 496-497.
It is no answer to say that the questioning was resumed by a second police officer. Surely Santobello v. New York, 404 U. S. 257, 262 (1971), requires that the case be decided as if it involved two interrogation sessions by a single law enforcement officer.
Although my Brother Marshall correctly argued in Hass, 420 U. S., at 728 (dissenting), that we should have remanded for the state court to clarify whether it was relying on state or federal law, such a disposition is not required here. In Hass the state court cited both federal and state authority; in this case Mosley’s counsel has conceded that the self-incrimination argument in the state court was based solely on the Fifth Amendment to the Federal Constitution. Tr. of Oral Arg. 44.
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