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January|February 2004

Let Off With a Warning

In Miranda cases, maybe the Supreme Court should exercise its own right to remain silent.

By Richard W. Garnett

WHEN THE SUPREME COURT handed down Dickerson v. United States in 2000 and declined to overrule its landmark Miranda decision, cop-show scriptwriters breathed a sigh of relief. Who can imagine Law & Order without a Lennie Briscoe quip and "Anything you say can and will be used against you in a court of law"? As seven justices recognized, "Miranda has become embedded in routine police practice," and its warnings "have become part of our national culture."

The court in Miranda had decreed 5-4 that the now-familiar warnings "must be given before a suspect's statement made during custodial interrogation [may] be admitted in evidence." Today, many experts—and some of the justices—would likely concede, over a drink and behind closed doors, that Miranda's constitutional arguments were shaky. The question in Dickerson, however, was whether Congress had the authority to replace the Miranda warnings with its own more flexible, police-friendly standard. The Supreme Court said no in part because in Dickerson, as in many other recent cases, the justices were eager to protect their turf.

But to save Miranda, Chief Justice William Rehnquist had to assert that its warnings were more than "safeguards" designed by judges to provide extra protection for suspects during questioning. The decision, he insisted, had instead "announced a constitutional rule." This claim was enough to keep Congress at bay, but it could also end up depriving prosecutors of valuable evidence at trial when cops get the Miranda rules wrong.

Enter three tough cases on this term's Supreme Court docket: United States v. Patane, Fellers v. United States, and Missouri v. Siebert. These cases don't revisit the Miranda rule itself; instead, they explore the consequences of its violation. In all of them, the police violated Miranda by interrogating a suspect without first reading him his rights, so there's no dispute that the suspects' incriminating statements may not be used at trial. However, the Miranda violations also helped the police to obtain more evidence—not just the original statements, but later confessions and even a gun. In criminal-procedure jargon, the "poisonous tree" of the illegal interrogations had borne "fruit." The question for the Supreme Court now is whether this evidence must be excluded, too. Miranda did not answer the question, and Dickerson made it harder.

IN THE YEARS AFTER MIRANDA, the court created what Justice Antonin Scalia called a "veritable fairyland castle" of interrogation law—rules about, for example, when "custody" begins, what counts as "interrogation," what it takes to "waive" the Miranda rights, and what it takes to "invoke" them. But the justices also limited Miranda's impact, deciding that the rule against using "poisoned fruits" evidence does not apply to Miranda violations in the same way that it does when, say, the police stop and frisk a suspect without any basis. Put simply, the courts give the police more leeway when they fail to comply with Miranda than when they cut corners on a search or seizure.

The leading Miranda-limiting decision is Oregon v. Elstad. The 1985 case said that if a suspect confessed without being given his warnings and then confessed again after being "Mirandized," his second confession could be used at trial. The court reasoned that Miranda did not require excluding the "fruits" of the prewarning confession at trial—although, of course, that confession itself could not be used—because Miranda is merely a "safeguard" of the Fifth Amendment's guarantee that the government may not compel a person to be a witness against himself. The Miranda warnings protect a suspect's constitutional rights, but this does not mean—so the argument goes—that a violation of Miranda is really a violation of the Constitution. Although Elstad involved a voluntary reconfession—as opposed to physical evidence, such as a gun or stolen goods—it suggests strongly that the "no fruits of the poisonous tree" rule does not apply to Miranda violations at all.

Dickerson, however, appears to have changed things. By announcing emphatically that Miranda set "concrete constitutional guidelines," the court seemed to put the Miranda warnings on the same constitutional footing as the bar against unreasonable searches. This move raises an obvious question: Why shouldn't the fruits of Miranda infractions also be off-limits to prosecutors? For the chief justice in Dickerson, it was enough to observe, with his usual economy, that "unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth." After all, his aim was simply to defend the court's landmark ruling from congressional second-guessing. This term's trio of interrogation cases, however, will likely require more.

Each of these cases involves the "poisonous tree" problem. Fellers is like Elstad: The arresting officers violated Miranda and got John Fellers to give an incriminating statement. Later, at the jail, Fellers was given his Miranda warnings, and he repeated and expanded his confession. In just two sentences, without mentioning Dickerson, the U.S. Court of Appeals for the Eighth Circuit followed Elstad and ruled that the government could use the second confession at trial, the Miranda violation notwithstanding.

In Patane, the disputed evidence at issue is a gun. The officer began the Miranda litany, but Samuel Patane interrupted him, asserting that he already knew his rights. When the officer then asked where Patane kept his gun, Patane told him. The prosecution conceded on appeal that the officer should have pressed on with the warnings and that even this accidental Miranda violation required keeping Patane's statement from the jury. But what about the gun? Here, the Tenth Circuit took a different tack than the court in Fellers. It insisted that, to encourage compliance with Miranda, the physical fruits of even a "negligent" violation must be excluded from the prosecution's case.

The twist in Siebert is that the Miranda violation was brazen and calculated. The officer didn't merely forget to read Patrice Siebert her rights, nor was he interrupted by an impatient suspect. Rather, he did what he had apparently been trained to do: As he put it, he "rolled the dice," skipping the warnings before and during the initial round of questioning. Only after Siebert admitted her role in a sordid murder conspiracy was she advised of her Miranda rights. She then repeated her damning statements. The Missouri Supreme Court rejected the officer's "beachhead" interrogation technique, calling it "an 'end run' around Miranda." Emphasizing the deliberate nature of the violation, and Elstad notwithstanding, the judges in Siebert held that the second statement was involuntary and therefore inadmissible. "To hold otherwise," the court said, "would encourage future Miranda violations and, inevitably, Miranda's role in protecting the privilege against self-incrimination would diminish."

WHAT CAN WE EXPECT FROM THE SUPREME COURT when it reviews these cases? After reaffirming Miranda in Dickerson, will the justices' next move be to toughen the penalties for interrogations that take place without a warning?

Predicting Supreme Court outcomes is always a risky business. That said, the court should and likely will decline to suppress the "fruits" that followed all three of these Miranda violations. For starters, it would be a mistake to read too much into Dickerson. Nothing in Chief Justice Rehnquist's opinion suggests any newfound enthusiasm for excluding reliable evidence at trial. Instead, there is every reason to believe that a narrow majority of the justices remain deeply skeptical of Miranda and, therefore, little inclined to expand it. It is one thing, these justices might think, to retain for stability's sake a 38-year-old mistake; it is another to run with it. When it comes to its "fairyland castle" of Miranda doctrine, this court is likely looking for low-cost maintenance, not expensive renovations.

Which makes sense. Consider first principles for a moment: A system of criminal procedure should identify the guilty and protect the innocent. It should do so efficiently, accurately, and in a manner consistent with limited government and human dignity. It makes moral and practical sense to exclude as offensive and untrustworthy the involuntary confessions that result from coercive interrogation techniques. But the gun in Patane and the second confession in Fellers were reliable evidence and were obtained by reasonable methods. As for the second confession in Siebert, even the officer's deliberate sidestepping of Miranda doesn't change the fact that Siebert confessed a second time, after being advised of her rights. Contrary to the Missouri court's conclusion, a confession isn't involuntary, and therefore constitutionally inadmissible, merely because the police exploited procedural loopholes while getting it.

But what about deterrence? Shouldn't the law discourage police officers from ignoring Miranda whenever they believe it suits their purposes? At the very least, shouldn't we demand that the police act in good faith, and so exclude "poisoned fruit" evidence when officers shamelessly "roll the dice"?

These concerns cannot be dismissed. On the other hand, the Supreme Court has consistently refused, with good reason, to define the Constitution's demands in terms of officers' subjective aims and motives. Courts are better able to evaluate—and, if necessary, to remedy—what police actually do than to determine what they were thinking as they did it. An officer is allowed to pull over a car with a broken taillight, even if he hopes to find illegal drugs; and he is allowed to seize a gun, even if it is found in the course of an ostensible inspection of fire detectors. In a case called Murray v. United States, the justices even approved a search where an officer illegally entered and searched a warehouse to confirm his suspicion that drugs were there before taking the time to apply for a warrant. Talk about brazen! What looks to some like the cagey exploitation of technicalities and loopholes might be praised by others as creative police work.

And so, in this term's Miranda cases, the court is likely to come down on the side of creative police work. Neither its prior decisions nor an appropriate concern about deterrence require the exclusion of useful evidence, merely because Miranda was violated somewhere along the way.


Richard W. Garnett is an associate professor of law at Notre Dame Law School.

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