c10:No. 84-786

Chief Justice Burger,
with whom Justice White and Justice Rehnquist join, and with whom Justice O’Con-nor joins as to Parts I and III, dissenting.
Today the Court holds that the Sixth Amendment prohibits the use at trial of postindictment statements made to a government informant, even where those statements were recorded as part of a good-faith investigation of entirely separate crimes. Nothing whatever in the Constitution or our prior opinions supports this bizarre result, which creates a new “right” only for those possibly habitual offenders who persist in criminal activity even while under indictment for other crimes. I dissent and would reverse.
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Before reaching the legal issues, it is important that the factual basis on which the State acted here be clearly understood. Since the Court’s opinion glosses over some of the more relevant facts, I review them here briefly.
After respondent and a codefendant, Gary Colson, were indicted on several felony counts of theft by receiving stolen goods, Colson telephoned Belfast Police Chief Robert Keating to arrange á meeting. At that meeting, on November 4, 1982, Colson told Chief Keating that he had been receiving “threatening phone calls” and that “it had gone too far.” In this conversation, Colson indicated his desire to tell Chief Keating about the circumstances giving rise to the indictment; but Chief Keating appropriately cautioned him to consult with an attorney before saying more.
Two days later, Colson and respondent met. Respondent spoke of “[gjetting rid of a couple of witnesses,” including Gary Elwell, a key prosecution witness in the upcoming trial of Colson and respondent. Respondent had formulated a general plan for the murder; Colson’s role was to pick up a car to be used in that endeavor.
On November 9 and 10, Colson met with Chief Keating and Detective Rex Kelley of the Maine State Police at the office of Colson’s attorney. At these meetings, Colson revealed to the police respondent’s plan to kill Elwell. Keating was aware that several witnesses connected with the case had received threats. One witness, Duke Ducaster, had been threatened personally by respondent. Another witness, Herman Peasley, “had been told . . . that a cup of acid could be thrown in his face” if he talked to the police. Colson then consented to having the police place a recording device on his home telephone. Keating testified that he placed the device on the telephone because respondent was to call Colson back when plans to eliminate Elwell had been finalized and because Colson himself had been receiving anonymous threatening telephone calls.
Three telephone calls initiated by respondent were subsequently recorded. In the first, on November 22, 1982, respondent, in an apparent reference to the plan to do away with Elwell, told Colson that he had “come up with a method” and that he wanted to get together with Colson to talk about it after he had “work[ed] out the details on it.” In the second recorded conversation, respondent reviewed with Colson the extent of the evidence against them and made several incriminating statements. In the last of the recorded conversations, respondent again incriminated himself and referred to statements by witnesses that they had been threatened. Finally, respondent told Colson that he wanted to meet to “review the whole plan.”
Chief Keating and Detective Kelley then arranged for Colson to wear a body recorder/transmitter during this meeting. Both officers testified that the recorder was intended to protect Colson’s safety, since respondent might have learned that Colson was cooperating with the police, as well as to record any information concerning threats to other witnesses. Colson himself testified that his understanding of the reasons for using the recorder were “number 1 . . . my safety” and “number 2 ... for any other plans to do away with any of the witnesses.” When asked if there was a “number 3,” Colson testified “no.” The police instructed Colson “to act like himself, converse normally, and avoid trying to draw information out of Moulton.”
During the meeting with Colson, respondent without any prompting brought up the possibility of killing Gary Elwell, by means of an air gun with hollow-tipped darts or explosives. Respondent also suggested developing false testimony for presentation at trial. These portions of the transcript were not admitted into evidence at trial. In addition, there was direct discussion of the thefts for which respondent had been indicted; these portions of the transcript were admitted. The trial court refused to suppress these portions since the State had recorded the conversations “for legitimate purposes not related to the gathering of evidence concerning the crime for which [respondent] had been indicted — ! e., in order to gather information concerning the anonymous threats that Mr. Colson had been receiving, to protect Mr. Colson and to gather information concerning [respondent’s] plans to kill Gary Elwell.” The Maine Supreme Court in a careful opinion found “ample evidence” to support this factual finding.
II
The Court today concludes that “[t]o allow the admission of evidence obtained from an accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance . . . risks the evisceration of the Sixth Amendment right recognized in Massiah.” Ante, at 180. With all deference I am bound to state that this conclusion turns the Sixth Amendment on its head by first positing a constitutional violation and then asking whether “alternative, legitimate reasons” for the police surveillance are sufficient to justify that constitutional violation. As I see it, if “alternative, legitimate reasons” motivated the surveillance, then no Sixth Amendment violation has occurred. Indeed, if the police had failed to take the steps they took here knowing that Colson was endangering his life by talking to them, in my view they would be subject to censure.
Analysis of this issue must begin with Hoffa v. United States, 385 U. S. 293 (1966), not cited in the Court’s opinion. In Hoffa, the Court held that postindictment statements obtained by a Government informant “relating] to the commission of a quite separate offense,” id., at 308, were properly admitted at a subsequent trial for the separate crime. Other courts have also held that Massiah, viewed in light of the later-decided Hoffa case, does not prohibit the introduction of incriminating statements obtained in good faith by the Government even after an indictment at a trial involving an offense different from that covered by the indictment. See, e. g., Mealer v. Jones, 741 F. 2d 1451, 1455 (CA2 1984), cert. denied, 471 U. S. 1006 (1985); United States v. Lisenby, 716 F. 2d 1355, 1357-1359 (CA11 1983) (en banc).
Applying Hoffa to the facts of this case, it is clear that the statements obtained by Colson could have been introduced against respondent at a subsequent trial for crimes apart from those for which respondent had already been indicted, such as conspiracy to commit murder or to obstruct justice. The majority concedes as much: “Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses.” Ante, at 180, n. 16. It follows from this that the State engaged in no impermissible conduct in its investigation of respondent based on Colson’s revelations. By recording conversations between respondent and Colson, Chief Keating and Detective Kelley succeeded in obtaining evidence that the Court’s opinion concedes could have been used to convict respondent of further crimes. In fact this record shows clearly that, based on the recordings, the State was able to obtain additional indictments against respondent for burglary, arson, and three more thefts. The Court’s opinion notes that respondent pleaded guilty to several of the additional indictments secured as a result of pursuing Colson’s leads. Ante, at 167.
Courts ought to applaud the kind of careful and diligent efforts of the police shown by this record. Indeed, the Court’s opinion does not suggest that the police should have — or could have — conducted their investigation in any other way. Yet, inexplicably, the Court holds that the highly probative and rehable evidence produced by this wholly legitimate investigation must be excluded from respondent’s trial for theft. The anomaly of this position, then, is that the evidence at issue in this case should have been excluded from respondent’s theft trial even though the same evidence could have been introduced against respondent himself ai a trial for separate crimes. Far from being “a sensible solution to a difficult problem,” ante, at 179, as the Court modestly suggests, it is a judicial aberration conferring a windfall benefit to those who are the subject of criminal investigations for one set of crimes while already under indictment for another. I can think of no reason to turn the Sixth Amendment into a “magic cloak,” United States v. DeWolf, 696 F. 2d 1, 3 (CA1 1982), to protect criminals who engage in multiple offenses that are the subject of separate police investigations.
We have held that no Sixth Amendment violation occurs unless the State “deliberately elicit[s]” comments from the defendant. See Massiah v. United States, 377 U. S. 201, 206 (1964); United States v. Henry, 447 U. S. 264, 270 (1980). As the foregoing amply demonstrates, however, a finding of “deliberate elicitation” is not the end of the inquiry. In using the phrase “deliberate elicitation,” we surely must have intended to denote elicitation for the purpose of using such statements against the defendant in connection with charges for which the Sixth Amendment right to counsel had attached. Here the State indeed set out to elicit information from a defendant, but it was an investigation with respect to crimes other than those for which the defendant then stood indicted. As two courts found, the State recorded the conversations “ ‘for legitimate purposes not related to the gathering of evidence concerning the crime for which [respondent] had been indicted.’” 481 A. 2d 155, 160 (Me. 1984) (quoting trial court).
No prior holding of this Court recognizes a Sixth Amendment violation in such circumstances. As one court has put it, the Sixth Amendment “speaks only to the situation where in the absence of retained counsel, statements are deliberately elicited from a defendant in connection with a crime for which he has already been indicted.” United States v. Hinton, 543 F. 2d 1002, 1015 (CA2), cert. denied sub nom. Carter v. United States, 429 U. S. 980 (1976). Thus, in United States v. Henry, supra, at 275, n. 14, we quoted Disciplinary Rule 7-104(A)(l) of the American Bar Association’s Code of Professional Responsibility, which provides that “‘a lawyer shall not . . . [c]ommunicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter’ ” (emphasis added). Our reference in Henry to this rule illustrates that we have framed the Sixth Amendment issue in terms of whether the State deliberately circumvented counsel with regard to the “subject of representation.” But where, as here, the incriminating statements are gathered for “an alternative, legitimate reason,” ante, at 180, wholly apart from the pending charges, no such deliberate circumvention exists.
The Court’s opinion seems to rest on the notion that the evidence here is excludable because “the State ‘must have known’ that its agent was likely to obtain incriminating statements from the accused,” ante, at 176, n. 12, with respect to the crimes for which he was already indicted. But the inquiry mandated by our holdings is whether the State recorded the statements not merely in spite of, but because of that consequence. Cf. Wayte v. United States, 470 U. S. 598 (1985). If the State is not seeking to elicit information with respect to the crime for which the defendant is already indicted, it cannot rationally be said that the State has “planned an impermissible interference with the right to the assistance of counsel.” Henry, supra, at 275.
This case is a particularly inappropriate one for invoking the right to counsel. The right to counsel recognized in Massiah was designed to preserve the integrity of the trial. See 377 U. S., at 204. Here respondent was under investigation because of his plans to obstruct justice by killing an essential witness. There is no right to consult an attorney for advice on committing crimes. See United States v. Merritts, 527 F. 2d 713, 716 (CA7 1975). Indeed, any attorney who undertook to offer such advice would undoubtedly be subject to sanction. Disciplinary Rule 7-102(A)(7) of the Code of Professional Responsibility, for example, states “a lawyer shall not . . . [cjounsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” Thus there is no warrant for vindicating respondent’s right to con-suit counsel. An observation of this Court in connection with the attorney-client evidentiary privilege bears mention here: “The privilege takes flight if the relation is abused. A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told.” Clark v. United States, 289 U. S. 1, 15 (1933). I would let the truth be told in this case rather than exclude evidence that was the product of this police investigation into activities designed to thwart the judicial process.
Even though the Massiah rule is inapplicable to situations where the government is gathering information related to a separate crime, police misconduct need not be countenanced. Accordingly, evidence obtained through a separate crimes investigation should be admitted only “so long as investigating officers show no bad faith and do not institute the investigation of the separate offense as a pretext for avoiding the dictates of Massiah.” United States v. Darwin, 757 F. 2d 1193, 1199 (CA11 1985). Here the careful actions of Chief Keating and Detective Kelley steered well clear of these prohibitions.
Until today, the clearly prevailing view in the federal and state courts was that Massiah and its successors did not protect a defendant from the introduction of postindictment statements deliberately elicited when the police undertook an investigation of separate crimes. As two leading commentators have observed:
“Even before [Brewer v.] Williams, [430 U. S. 387 (1977),] it was generally accepted that the right to counsel did not bar contact with the defendant concerning other offenses, particularly if the offenses were clearly unrelated and it did not appear the charge was simply a pretext to gain custody in order to facilitate the investigation. The more recent cases recognize that [Massiah and its progeny do] not confer upon charged defendants immunity from investigation concerning other crimes. This is especially true when the offense under investigation is a new or ongoing one, such as illegal efforts to thwart the forthcoming prosecution.” 1 W. LaFave & J. Israel, Criminal Procedure §6.4, p. 470 (1984) (emphasis added) (footnotes omitted).
Rather than expand Massiah beyond boundaries currently recognized, I would take note of the observation that “Massiah certainly is the decision in which Sixth Amendment protections have been extended to their outermost point.” Henry, 447 U. S., at 282 (Blackmun, J., dissenting). I would not expand them more and well beyond the limits of precedent and logic.
Ill
Even if I were prepared to join the Court in this enlargement of the protections of the Sixth Amendment, I would have serious doubts about also extending the reach of the exclusionary rule to cover this case. “Cases involving Sixth Amendment deprivations are subject to the general rule that remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981). Application of the exclusionary rule here makes little sense, as demonstrated by “weighing the costs and benefits of preventing the use in the prosecution’s case in chief of inherently trustworthy tangible evidence.” United States v. Leon, 468 U. S. 897, 907 (1984).
With respect to the costs, applying the rule to cases where the State deliberately elicits statements from a defendant in the course of investigating a separate crime excludes evidence that is “typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.” Stone v. Powell, 428 U. S. 465, 490 (1976). Moreover, because of the trustworthy nature of the evidence, its admission will not threaten “the fairness of a trial or . . . the integrity of the factfinding process.” Brewer v. Williams, 430 U. S. 387, 414 (1977) (Powell, J., concurring). Hence, application of the rule to cases like this one “deflects the truthfinding process,” “often frees the guilty,” and may well “generate] disrespect for the law and [the] administration of justice.” Stone v. Powell, supra, at 490-491.
Against these costs, applying the rule here appears to create precious little in the way of offsetting “benefits.” Like searches in violation of the Fourth Amendment, the “wrong” that the Court condemns was “fully accomplished” by the elicitation of comments from the defendant and “the exclusionary rule is neither intended nor able to cure the invasion of the defendant’s rights which he has already suffered.” Leon, supra, at 906 (internal quotation omitted).
The application of the exclusionary rule here must therefore be premised on deterrence of certain types of conduct by the police. We have explained, however, that “[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right.” United States v. Peltier, 422 U. S. 531, 539 (1975). Here the trial court found that the State obtained statements from respondent “for legitimate purposes not related to the gathering of evidence concerning the crime for which [respondent] had been indicted.” Since the State was not trying to build its theft case against respondent in obtaining the evidence, excluding the evidence from the theft trial will not affect police behavior at all. The exclusion of evidence “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” Leon, swpra, at 919. Indeed, as noted above, it is impossible to identify any police “misconduct” to deter in this case. In fact, if anything, actions by the police of the type at issue here should be encouraged. The diligent investigation of the police in this case may have saved the lives of several potential witnesses and certainly led to the prosecution and conviction of respondent for additional serious crimes.
It seems, then, that the Sixth Amendment claims at issue here “closely parallel claims under the Fourth Amendment,” Brewer, supra, at 414 (Powell, J., concurring), where we have found the exclusionary rule to be inapplicable by weighing the costs and benefits of its applications. See, e. g., United States v. Leon, supra (exclusionary rule inapplicable where officers rely in good faith on defective search warrant issued by neutral magistrate); Stone v. Powell, supra (where full opportunity to litigate Fourth Amendment issues has been afforded, such issues may not be raised in a state habeas petition). If anything, the argument for admission of the evidence here is even stronger because “[t]his is not a case where . . . ‘the constable . . . blundered.’” United States v. Henry, supra, at 274-275 (quoting People v. DeFore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (Cardozo, J.)).
Because the Court today significantly and unjustifiably departs from our prior holdings, I respectfully dissent.
Contrary to the Court’s assertion that “the conversation ended without Moulton having said anything that incriminated him,” ante, at 164, Moul-ton and Colson in fact rehearsed a fabricated story that they planned to use at trial:
“[Moulton:] The parts I bought. I never denied that. I did buy those.
“[Colson:] The [M]ustang . . . same here.
“[Moulton:] And the [M]ustang, we bought that?
“[Colson:] Yeah.
“[Moulton:] Ok. It’s just a coincidence that ah, they happened to be . . . [h]ot or whatever. . . . You’ve got a bill of sale for the Mustang. I got a bill of sale for parts. So, you know, what the hell? What can they say?” Exh. S-3, Tr. of Dec. 14 Conversation 4-5.
After a break in the conversation, respondent took a deep sigh and said:
“[Moulton:] You know I thought of a way to eliminate them. Remember we were talking about it before?
“[Colson:] Yes, you thought of a way?
“[Moulton:] Yeah, but, ah, I don’t think we ought to go for it. . . .
“[Colson:] Well, let me [hear it].
“[Moulton:] Well you know those air guns. . . . They make little darts for those little feather back darts that you can put in there you’ve seen em. Those little darts, those little things about that long. I [was] thinking just hollow the tip out like a needle and just put. . . little . . . holes on the side, and you fill it with a lethal injection and the shooting impact would shoot all the stuff out of it into . . . the individuals body [and] poison [th]em. There would be no noise.
“[Colson:] Jesus. . . .
“[Moulton:] That’s the only thing that runs through my brain . . . you have a puncture wound, probably take about 20 or 30 minutes to kick off, yeah, and the other problem is the poison, where . . . are you going to get some poison? Small bottles.
“[Colson:] What was that stuff you told me about once?
“[Moulton:] Calcium chlorine . . . , yeah, something like that, just a small drop will make you look like you have a heart attack and . . . you’d never, never, find it unless you were looking. . . exactly for that drug.. . . Stops your heart.” Exh. S-4, Tr. of Dec. 26 Meeting 18-20.
Moulton then discussed an alternative scheme for doing away with witnesses, based on making explosives pursuant to directions contained in a magazine that one of his “best friends” was sending. Moulton described him as having belonged to “a motorcycle gang” and also suggested ominously that he had “[p]robably snuffed one or two people.” Id., at 21.
The Court’s opinion seems to read Massiah as if it definitively addresses situations where the police are investigating a separate crime. This reading is belied by the Massiah Court’s statement of its own holding:
“We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.” Massiah v. United States, 377 U. S. 201, 207 (1964) (first emphasis added).
The reference to the “circumstances here disclosed” must be to the fact that the Government, far from pursuing a good-faith investigation of different crimes, had “instructed the informant to engage [Massiah] in conversation relating to the crimes [for which he had already been indicted].” United States v. Henry, 447 U. S. 264, 276 (1980) (Powell, J., concurring); Brief for Petitioner in Massiah v. United States, O. T. 1963, No. 199, p. 4.
See United States v. DeWolf, 696 F. 2d 1, 3 (CA1 1982); Grieco v. Meachum, 533 F. 2d 713, 717-718 (CA1 1976), cert. denied sub nom. Cassesso v. Meachum, 429 U. S. 858 (1976); United States v. Hinton, 543 F. 2d 1002, 1015 (CA2), cert. denied sub nom. Carter v. United States, 429 U. S. 980 (1976); United States v. Merritts, 527 F. 2d 713, 716 (CA7 1975); United States v. Taxe, 540 F. 2d 961, 968-969 (CA9 1976), cert. denied, 429 U. S. 1040 (1977); United States v. Darwin, 757 F. 2d 1193, 1200 (CA11 1985); Crawford v. State, 377 So. 2d 145, 156 (Ala. Crim. App.), aff’d, 377 So. 2d 159 (Ala. 1979), vacated and remanded, 448 U. S. 904 (1980); Deskins v. Commonwealth, 512 S. W. 2d 520, 526 (Ky. 1974), cert. denied, 419 U. S. 1122 (1975); Hall v. State, 47 Md. App. 590, 596, 425 A. 2d 227, 231 (1981), afif’d, 292 Md. 683, 441 A. 2d 708 (1982); People v. Mealer, 57 N. Y. 2d 214, 218, 441 N. E. 2d 1080, 1082 (1982); People v. Costello, 101 App. Div. 2d 244, 247, 476 N. Y. S. 2d 210, 212 (1984); Hummel v. Commonwealth, 219 Va. 252, 257, 247 S. E. 2d 385, 388 (1978), cert. denied, 440 U. S. 935 (1979). Cf. United States v. Moschiano, 695 F. 2d 236, 243 (CA7 1982), cert. denied, 464 U. S. 831 (1983); United States v. Boffa, 89 F. R. D. 523 (Del. 1981). But see Mealer v. Jones, 741 F. 2d 1451, 1455 (CA2 1984), cert. denied, 471 U. S. 1006 (1985); State v. Ortiz, 131 Ariz. 195, 202, 639 P. 2d 1020, 1028 (1981), cert. denied, 456 U. S. 984 (1982).

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