4.4: Chapter 34 - Exclusionary Rule- Application to the Miranda Rule

THE EXCLUSIONARY RULE

Chapter 34

Exclusionary Rule: Application to the Miranda Rule

The Miranda Rule has a somewhat unusual status in criminal procedure law because although the Court created the rule to enforce the Self-Incrimination Clause of the Fifth Amendment, the Justices have not announced consistent views on whether violations of Miranda are—in and of themselves—violations of the Constitution. In Miranda, the Court held that statements obtained during custodial interrogation in violation of the Miranda Rule would be presumed involuntary. But the Court has not always treated such statements in the same way as confessions that are truly involuntary. (For example, involuntary statements may not be used for impeachment.) In this chapter, we review how the Court has applied the exclusionary rule to the Miranda doctrine.

Our first case concerns the status of testimony given by a witness whom police discovered as a result of a Miranda violation.

Supreme Court of the United States

Michigan v. Thomas W. Tucker

Decided June 10, 1974 – 417 U.S. 433

Mr. Justice REHNQUIST delivered the opinion of the Court.

This case presents the question whether the testimony of a witness in respondent’s state court trial for rape must be excluded simply because police had learned the identity of the witness by questioning respondent at a time when he was in custody as a suspect, but had not been advised that counsel would be appointed for him if he was indigent.

I

On the morning of April 19, 1966, a 43-year-old woman in Pontiac, Michigan was found in her home by a friend and coworker, Luther White, in serious condition. At the time she was found the woman was tied, gagged, and partially disrobed, and had been both raped and severely beaten. She was unable to tell White anything about her assault at that time and still remains unable to recollect what happened.

While White was attempting to get medical help for the victim and to call for the police, he observed a dog inside the house. This apparently attracted White’s attention for he knew that the woman did not own a dog herself. Later, when talking with police officers, White observed the dog a second time, and police followed the dog to respondent’s house. Neighbors further connected the dog with respondent.

The police then arrested respondent and brought him to the police station for questioning. Prior to the actual interrogation the police asked respondent whether he knew for what crime he had been arrested, whether he wanted an attorney, and whether he understood his constitutional rights. Respondent replied that he did understand the crime for which he was arrested, that he did not want an attorney, and that he understood his rights. The police further advised him that any statements he might make could be used against him at a later date in court. The police, however, did not advise respondent that he would be furnished counsel free of charge if he could not pay for such services himself.

The police then questioned respondent about his activities on the night of the rape and assault. Respondent replied that during the general time period at issue he had first been with one Robert Henderson and then later at home, alone, asleep. The police sought to confirm this story by contacting Henderson, but Henderson’s story served to discredit rather than to bolster respondent’s account. Henderson acknowledged that respondent had been with him on the night of the crime but said that he had left at a relatively early time. Furthermore, Henderson told police that he saw respondent the following day and asked him at that time about scratches on his face—“asked him if he got hold of a wild one or something.” Respondent answered: “[S]omething like that.” Then, Henderson said, he asked respondent “who it was,” and respondent said: “[S]ome woman lived the next block over,” adding: “She is a widow woman” or words to that effect.

Prior to trial respondent’s appointed counsel made a motion to exclude Henderson’s expected testimony because respondent had revealed Henderson’s identity without having received full Miranda warnings. Although respondent’s own statements taken during interrogation were excluded, the trial judge denied the motion to exclude Henderson’s testimony. Henderson therefore testified at trial, and respondent was convicted of rape and sentenced to 20 to 40 years’ imprisonment. His conviction was affirmed by both the Michigan Court of Appeals and the Michigan Supreme Court.

Respondent then sought habeas corpus relief in Federal District Court. The court [] granted respondent’s petition for a writ of habeas corpus unless petitioner retried respondent within 90 days. The Court of Appeals for the Sixth Circuit affirmed. We granted certiorari and now reverse.

II

Although respondent’s sole complaint is that the police failed to advise him that he would be given free counsel if unable to afford counsel himself, he did not, and does not now, base his arguments for relief on a right to counsel under the Sixth and Fourteenth Amendments. Nor was the right to counsel, as such, considered to be persuasive by either federal court below.

Respondent’s argument, and the opinions of the District Court and Court of Appeals, instead rely upon the Fifth Amendment right against compulsory self-incrimination and the safeguards designed in Miranda to secure that right. In brief, the position urged upon this Court is that proper regard for the privilege against compulsory self-incrimination requires, with limited exceptions not applicable here, that all evidence derived solely from statements made without full Miranda warnings be excluded at a subsequent criminal trial. For purposes of analysis in this case we believe that the question thus presented is best examined in two separate parts. We will therefore first consider whether the police conduct complained of directly infringed upon respondent’s right against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right. We will then consider whether the evidence derived from this interrogation must be excluded.

III

[The Court determined “that the police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda.”]

IV

Just as the law does not require that a defendant receive a perfect trial, only a fair one, it cannot realistically require that policeman investigating serious crimes make no errors whatsoever. The pressures of law enforcement and the vagaries of human nature would make such an expectation unrealistic. Before we penalize police error, therefore, we must consider whether the sanction serves a valid and useful purpose.

We have recently said, in a search-and-seizure context, that the exclusionary rule’s “prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” In a proper case this rationale would seem applicable to the Fifth Amendment context as well.

The 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. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.

We consider it significant to our decision in this case that the officers’ failure to advise respondent of his right to appointed counsel occurred prior to the decision in Miranda. Although we have been urged to resolve the broad question of whether evidence derived from statements taken in violation of the Miranda rules must be excluded regardless of when the interrogation took place, we instead place our holding on a narrower ground. For at the time respondent was questioned these police officers were guided, quite rightly, by the [pre-Miranda] principles, particularly focusing on the suspect’s opportunity to have retained counsel with him during the interrogation if he chose to do so. Thus, the police asked respondent if he wanted counsel, and he answered that he did not. The statements actually made by respondent to the police, as we have observed, were excluded at trial. Whatever deterrent effect on future police conduct the exclusion of those statements may have had, we do not believe it would be significantly augmented by excluding the testimony of the witness Henderson as well.

When involuntary statements or the right against compulsory self-incrimination are involved, a second justification for the exclusionary rule also has been asserted: protection of the courts from reliance on untrustworthy evidence. Cases which involve the Self-Incrimination Clause must, by definition, involve an element of coercion, since the Clause provides only that a person shall not be compelled to give evidence against himself. And cases involving statements often depict severe pressures which may override a particular suspect’s insistence on innocence.

But those situations are a far cry from that presented here. The pressures on respondent to accuse himself were hardly comparable even with the least prejudicial of those pressures which have been dealt with in our cases. More important, the respondent did not accuse himself. The evidence which the prosecution successfully sought to introduce was not a confession of guilt by respondent, or indeed even an exculpatory statement by respondent, but rather the testimony of a third party who was subjected to no custodial pressures. There is plainly no reason to believe that Henderson’s testimony is untrustworthy simply because respondent was not advised of his right to appointed counsel. Henderson was both available at trial and subject to cross-examination by respondent’s counsel, and counsel fully used this opportunity, suggesting in the course of his cross-examination that Henderson’s character was less than exemplary and that he had been offered incentives by the police to testify against respondent. Thus the reliability of his testimony was subject to the normal testing process of an adversary trial.

In summary, we do not think that any single reason supporting exclusion of this witness’ testimony, or all of them together, are very persuasive. By contrast, we find the arguments in favor of admitting the testimony quite strong. For, when balancing the interests involved, we must weigh the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. In this particular case we also “must consider society’s interest in the effective prosecution of criminals in light of the protection our pre-Miranda standards afford criminal defendants.” These interests may be outweighed by the need to provide an effective sanction to a constitutional right, but they must in any event be valued. Here respondent’s own statement, which might have helped the prosecution show respondent’s guilty conscience at trial, had already been excised from the prosecution’s case. To extend the excision further under the circumstances of this case and exclude relevant testimony of a third-party witness would require far more persuasive arguments than those advanced by respondent.

Reversed.

Notes, Comments, and Questions

In Tucker, the Court declined to suppress evidence in part because officers acted in good faith. “Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.” This language is similar to the Court’s words in United States v. Leon, 468 U.S. 897 (1984), which concerned “objectively reasonable reliance on a subsequently invalidated search warrant.” The Court held that evidence found during execution of a search warrant issued by a neutral magistrate should not be excluded if a court later found that there was insufficient evidence to satisfy the probable cause requirement in the Warrant Clause—unless the officer had “no reasonable grounds for believing that the warrant was properly issued.” In other words, the officer would not be punished for reasonable reliance on the magistrate’s probable cause finding, even if the finding was later overturned. The “good faith exception” to exclusion of evidence under the Fourth Amendment was expanded in cases such as Herring v. United States (Chapter 32) and Davis v. United States (Chapter 32).

The Tucker Court also justified its result in part on timing; the interrogation at issue occurred before Miranda was decided, making the police behavior less blameworthy. Students should note that the holding of Tucker—that a witness identified during an interrogation conducted in violation of Miranda may testify against the defendant at trial—remains good law for interrogations conducted well after the Court decided Miranda.

Unlike Tucker, which concerned testimony by someone other than the defendant, our next case concerns statements police obtained from a defendant after a Miranda violation. The question was whether an initial Miranda violation necessarily taints, and renders inadmissible, statements obtained during a subsequent post-warning interrogation.

Supreme Court of the United States

Oregon v. Michael James Elstad

Decided March 4, 1985—470 U.S. 298

Justice O’CONNOR delivered the opinion of the Court.

This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, without more, “taints” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent’s signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari and we now reverse.

I

In December 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk County, Ore., was burglarized. Missing were art objects and furnishings valued at $150,000. A witness to the burglary contacted the Polk County Sheriff’s office, implicating respondent Michael Elstad, an 18-year-old neighbor and friend of the Grosses’ teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad’s mother answered the door. She led the officers to her son’s room where he lay on his bed, clad in shorts and listening to his stereo. The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent’s mother to step into the kitchen, where he explained that they had a warrant for her son’s arrest for the burglary of a neighbor’s residence. Officer Burke remained with Elstad in the living room. He later testified:

“I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house. And at that point I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, ‘Yes, I was there.’”

The officers then escorted Elstad to the back of the patrol car. As they were about to leave for the Polk County Sheriff’s office, Elstad’s father arrived home and came to the rear of the patrol car. The officers advised him that his son was a suspect in the burglary. Officer Burke testified that Mr. Elstad became quite agitated, opened the rear door of the car and admonished his son: “I told you that you were going to get into trouble. You wouldn’t listen to me. You never learn.”

Elstad was transported to the Sheriff’s headquarters and approximately one hour later, Officers Burke and McAllister joined him in McAllister’s office. McAllister then advised respondent for the first time of his Miranda rights, reading from a standard card. Respondent indicated he understood his rights, and, having these rights in mind, wished to speak with the officers. Elstad gave a full statement, explaining that he had known that the Gross family was out of town and had been paid to lead several acquaintances to the Gross residence and show them how to gain entry through a defective sliding glass door. The statement was typed, reviewed by respondent, read back to him for correction, initialed and signed by Elstad and both officers. As an afterthought, Elstad added and initialed the sentence, “After leaving the house Robby & I went back to [the] van & Robby handed me a small bag of grass.” Respondent concedes that the officers made no threats or promises either at his residence or at the Sheriff’s office.

Respondent was charged with first-degree burglary. Respondent moved at once to suppress his oral statement and signed confession. He contended that the statement he made in response to questioning at his house “let the cat out of the bag,” citing and tainted the subsequent confession as “fruit of the poisonous tree.” The judge ruled that the statement, “I was there,” had to be excluded because the defendant had not been advised of his Miranda rights. The written confession taken after Elstad’s arrival at the Sheriff’s office, however, was admitted in evidence. The court found:

“[H]is written statement was given freely, voluntarily and knowingly by the defendant after he had waived his right to remain silent and have counsel present which waiver was evidenced by the card which the defendant had signed. [It] was not tainted in any way by the previous brief statement between the defendant and the Sheriff’s Deputies that had arrested him.”

Elstad was found guilty of burglary in the first degree. He received a 5-year sentence and was ordered to pay $18,000 in restitution.

Following his conviction, respondent appealed to the Oregon Court of Appeals. The Court of Appeals reversed respondent’s conviction. The State of Oregon petitioned the Oregon Supreme Court for review, and review was declined. This Court granted certiorari to consider the question whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.

II

The arguments advanced in favor of suppression of respondent’s written confession rely heavily on metaphor. One metaphor, familiar from the Fourth Amendment context, would require that respondent’s confession, regardless of its integrity, voluntariness, and probative value, be suppressed as the “tainted fruit of the poisonous tree” of the Miranda violation. A second metaphor questions whether a confession can be truly voluntary once the “cat is out of the bag.” Taken out of context, each of these metaphors can be misleading. They should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment. The Oregon court assumed and respondent here contends that a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right, so that evidence uncovered following an unwarned statement must be suppressed as “fruit of the poisonous tree.” We believe this view misconstrues the nature of the protections afforded by Miranda warnings and therefore misreads the consequences of police failure to supply them.

A

Prior to Miranda, the admissibility of an accused’s in-custody statements was judged solely by whether they were “voluntary” within the meaning of the Due Process Clause. If a suspect’s statements had been obtained by “techniques and methods offensive to due process,” or under circumstances in which the suspect clearly had no opportunity to exercise “a free and unconstrained will,” the statements would not be admitted. The Court in Miranda required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment. The Fifth Amendment, of course, is not concerned with nontestimonial evidence. Nor is it concerned with moral and psychological pressures to confess emanating from sources other than official coercion. Voluntary statements “remain a proper element in law enforcement.” “Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. … Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions.”

Respondent’s contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as “fruit of the poisonous tree” assumes the existence of a constitutional violation. But [] a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the “fruits” doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. “The exclusionary rule, … when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” Where a Fourth Amendment violation “taints” the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence. Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.

The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda’s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm.

But the Miranda presumption, though irrebuttable for purposes of the prosecution’s case in chief, does not require that the statements and their fruits be discarded as inherently tainted. Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution’s case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination. Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, “the primary criterion of admissibility [remains] the ‘old’ due process voluntariness test.”

We believe that this reasoning applies with equal force when the alleged “fruit” of a noncoercive Miranda violation is neither a witness nor an article of evidence but the accused’s own voluntary testimony. [T]he absence of any coercion or improper tactics undercuts the twin rationales—trustworthiness and deterrence—for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities. The Court has often noted: “‘[A] living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. … [T]he living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.’”

Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into “custody” or his freedom has otherwise been significantly restrained. Unfortunately, the task of defining “custody” is a slippery one, and “policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.” If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

B

The Oregon court, however, believed that the unwarned remark compromised the voluntariness of respondent’s later confession. It was the court’s view that the prior answer and not the unwarned questioning impaired respondent’s ability to give a valid waiver and that only lapse of time and change of place could dissipate what it termed the “coercive impact” of the inadmissible statement. The Oregon court [] identified a subtle form of lingering compulsion, the psychological impact of the suspect’s conviction that he has let the cat out of the bag and, in so doing, has sealed his own fate. But endowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect’s informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions.

This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. The Oregon court, by adopting this expansive view of Fifth Amendment compulsion, effectively immunizes a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself. When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.

There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a “guilty secret” freely given in response to an unwarned but noncoercive question, as in this case. Certainly, in respondent’s case, the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at best. It is difficult to tell with certainty what motivates a suspect to speak. A suspect’s confession may be traced to factors as disparate as “a prearrest event such as a visit with a minister” or an intervening event such as the exchange of words respondent had with his father. We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.

III

Though belated, the reading of respondent’s rights was undeniably complete. McAllister testified that he read the Miranda warnings aloud from a printed card and recorded Elstad’s responses. There is no question that respondent knowingly and voluntarily waived his right to remain silent before he described his participation in the burglary. It is also beyond dispute that respondent’s earlier remark was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either “interrogation” was coercive. The initial conversation took place at midday, in the living room area of respondent’s own home, with his mother in the kitchen area, a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest. The arresting officers’ testimony indicates that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect but to notify his mother of the reason for his arrest.

The State has conceded the issue of custody and thus we must assume that Burke breached Miranda procedures in failing to administer Miranda warnings before initiating the discussion in the living room. This breach may have been the result of confusion as to whether the brief exchange qualified as “custodial interrogation” or it may simply have reflected Burke’s reluctance to initiate an alarming police procedure before McAllister had spoken with respondent’s mother. Whatever the reason for Burke’s oversight, the incident had none of the earmarks of coercion. Nor did the officers exploit the unwarned admission to pressure respondent into waiving his right to remain silent.

This Court has never embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness. If the prosecution has actually violated the defendant’s Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule precludes use of that testimony on retrial. “Having ‘released the spring’ by using the petitioner’s unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony.” But the Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State’s evidence, does so involuntarily. The Court has also rejected the argument that a defendant’s ignorance that a prior coerced confession could not be admitted in evidence compromised the voluntariness of his guilty plea. Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and the quality of the evidence in the case.

IV

When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State’s case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect’s will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

The judgment of the Court of Appeals of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

Even while purporting to reaffirm [] constitutional guarantees, the Court has engaged of late in a studied campaign to strip the Miranda decision piecemeal and to undermine the rights Miranda sought to secure. Today’s decision not only extends this effort a further step, but delivers a potentially crippling blow to Miranda and the ability of courts to safeguard the rights of persons accused of crime. For at least with respect to successive confessions, the Court today appears to strip remedies for Miranda violations of the “fruit of the poisonous tree” doctrine prohibiting the use of evidence presumptively derived from official illegality.

Two major premises undergird the Court’s decision. The Court rejects as nothing more than “speculative” the long-recognized presumption that an illegally extracted confession causes the accused to confess again out of the mistaken belief that he already has sealed his fate, and it condemns as “‘extravagant’” the requirement that the prosecution affirmatively rebut the presumption before the subsequent confession may be admitted. The Court instead adopts a new rule that, so long as the accused is given the usual Miranda warnings before further interrogation, the taint of a previous confession obtained in violation of Miranda “ordinarily” must be viewed as automatically dissipated.

The Court’s decision says much about the way the Court currently goes about implementing its agenda. In imposing its new rule, for example, the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities of custodial interrogation that have led nearly every lower court to reject its simplistic reasoning. Moreover, the Court adopts startling and unprecedented methods of construing constitutional guarantees. Finally the Court reaches out once again to address issues not before us. For example, although the State of Oregon has conceded that the arresting officers broke the law in this case, the Court goes out of its way to suggest that they may have been objectively justified in doing so.

Today’s decision, in short, threatens disastrous consequences far beyond the outcome in this case.

The Court today [adopts] a rule that “the psychological impact of voluntary disclosure of a guilty secret” neither “qualifies as state compulsion” nor “compromises the voluntariness” of subsequent confessions. So long as a suspect receives the usual Miranda warnings before further interrogation, the Court reasons, the fact that he “is free to exercise his own volition in deciding whether or not to make” further confessions “ordinarily” is a sufficient “cure” and serves to break any causal connection between the illegal confession and subsequent statements.

Our precedents did not develop in a vacuum. They reflect an understanding of the realities of police interrogation and the everyday experience of lower courts. Expert interrogators, far from dismissing a first admission or confession as creating merely a “speculative and attenuated” disadvantage for a suspect, understand that such revelations frequently lead directly to a full confession. Standard interrogation manuals advise that “[t]he securing of the first admission is the biggest stumbling block….” If this first admission can be obtained, “there is every reason to expect that the first admission will lead to others, and eventually to the full confession.”

Interrogators describe the point of the first admission as the “breakthrough” and the “beachhead,” which once obtained will give them enormous “tactical advantages.” Thus “[t]he securing of incriminating admissions might well be considered as the beginning of the final stages in crumbling the defenses of the suspect,” and the process of obtaining such admissions is described as “the spadework required to motivate the subject into making the full confession.”

The practical experience of state and federal courts confirms the experts’ understanding. From this experience, lower courts have concluded that a first confession obtained without proper Miranda warnings, far from creating merely some “speculative and attenuated” disadvantage for the accused, frequently enables the authorities to obtain subsequent confessions on a “silver platter.”

One police practice that courts have frequently encountered involves the withholding of Miranda warnings until the end of an interrogation session. Specifically, the police escort a suspect into a room, sit him down and, without explaining his Fifth Amendment rights or obtaining a knowing and voluntary waiver of those rights, interrogate him about his suspected criminal activity. If the police obtain a confession, it is then typed up, the police hand the suspect a pen for his signature, and—just before he signs—the police advise him of his Miranda rights and ask him to proceed. Alternatively, the police may call a stenographer in after they have obtained the confession, advise the suspect for the first time of his Miranda rights, and ask him to repeat what he has just told them. In such circumstances, the process of giving Miranda warnings and obtaining the final confession is “‘merely a formalizing, a setting down almost as a scrivener does, [of] what ha[s] already taken [place].’” In such situations, where “it was all over except for reading aloud and explaining the written waiver of the Miranda safeguards,” courts have time and again concluded that “[t]he giving of the Miranda warnings before reducing the product of the day’s work to written form could not undo what had been done or make legal what was illegal.”

For all practical purposes, the prewarning and post-warning questioning are often but stages of one overall interrogation. Whether or not the authorities explicitly confront the suspect with his earlier illegal admissions makes no significant difference, of course, because the suspect knows that the authorities know of his earlier statements and most frequently will believe that those statements already have sealed his fate.

I would have thought that the Court, instead of dismissing the “cat out of the bag” presumption out of hand, would have accounted for these practical realities. Expert interrogators and experienced lower-court judges will be startled, to say the least, to learn that the connection between multiple confessions is “speculative” and that a subsequent rendition of Miranda warnings “ordinarily” enables the accused in these circumstances to exercise his “free will” and to make “a rational and intelligent choice whether to waive or invoke his rights.”

Not content merely to ignore the practical realities of police interrogation and the likely effects of its abolition of the derivative-evidence presumption, the Court goes on to assert that nothing in the Fifth Amendment or the general judicial policy of deterring illegal police conduct “ordinarily” requires the suppression of evidence derived proximately from a confession obtained in violation of Miranda. The Court does not limit its analysis to successive confessions, but recurrently refers generally to the “fruits” of the illegal confession. Thus the potential impact of the Court’s reasoning might extend far beyond the “cat out of the bag” context to include the discovery of physical evidence and other derivative fruits of Miranda violations as well.

I dissent.

Justice STEVENS, dissenting.

The desire to achieve a just result in this particular case has produced an opinion that is somewhat opaque and internally inconsistent.

For me, the most disturbing aspect of the Court’s opinion is its somewhat opaque characterization of the police misconduct in this case. The Court appears ambivalent on the question whether there was any constitutional violation. This ambivalence is either disingenuous or completely lawless. This Court’s power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution. The same constitutional analysis applies whether the custodial interrogation is actually coercive or irrebuttably presumed to be coercive. If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power. If the Court accepts the proposition that respondent’s self-incriminatory statement was inadmissible, it must also acknowledge that the Federal Constitution protected him from custodial police interrogation without first being advised of his right to remain silent.

The source of respondent’s constitutional protection is the Fifth Amendment’s privilege against compelled self-incrimination that is secured against state invasion by the Due Process Clause of the Fourteenth Amendment. Like many other provisions of the Bill of Rights, that provision is merely a procedural safeguard. It is, however, the specific provision that protects all citizens from the kind of custodial interrogation that was once employed by the Star Chamber, by “the Germans of the 1930’s and early 1940’s,” and by some of our own police departments only a few decades ago. Custodial interrogation that violates that provision of the Bill of Rights is a classic example of a violation of a constitutional right.

I respectfully dissent.

Notes, Comments, and Questions

The Court in Elstad rejects the “cat out of the bag” theory. It finds three factors persuasive:

1) The police behavior was not especially bad or willful.

2) The non-Mirandized confession was voluntary, not the product of compulsion.

3) There was significant attenuation between the two interrogations (not just the warnings given at the second interrogation, but also a trip from home to the police station).

Contrast these factors with the dissent’s discussion of the psychological effect of the “cat out of the bag” theory. Which do you find more persuasive? After the Court decided Elstad, police departments began conducting intentionally the sort of two-stage interrogation that occurred inadvertently in Elstad. That is, as described in Justice’s Brennan’s Elstad dissent, officers would interrogate a suspect in custody without first administering Miranda warnings. Then, after obtaining a confession, officers would recite the warnings and restart the questioning, using the information gained during the pre-warning interrogation to induce new statements officers expected could be used at trial. Because of its location, the tactic described in the next case became known as the “Missouri Two-Step.”

Supreme Court of the United States

Missouri v. Patrice Seibert

Decided June 28, 2004 – 542 U.S. 600

Justice SOUTER announced the judgment of the Court and delivered an opinion, in which Justice STEVENS, Justice GINSBURG, and Justice BREYER join.

This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.

I

Respondent Patrice Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert’s son Darian and a friend set the fire, and Donald died.

Five days later, the police awakened Seibert at 3 a.m. at a hospital where Darian was being treated for burns. In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, Officer Richard Hanrahan that he refrain from giving Miranda warnings. After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes, Officer Hanrahan questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating “Donald was also to die in his sleep.” After Seibert finally admitted she knew Donald was meant to die in the fire, she was given a 20-minute coffee and cigarette break. Officer Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her. He resumed the questioning with “Ok, ‘trice, we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” and confronted her with her prewarning statements:

Hanrahan: “Now, in discussion you told us, you told us that there was a[n] understanding about Donald.”

Seibert: “Yes.”

Hanrahan: “Did that take place earlier that morning?”

Seibert: “Yes.”

Hanrahan: “And what was the understanding about Donald?”

Seibert: “If they could get him out of the trailer, to take him out of the trailer.”

Hanrahan: “And if they couldn’t?”

Seibert: “I, I never even thought about it. I just figured they would.”

Hanrahan: “‘Trice, didn’t you tell me that he was supposed to die in his sleep?”

Seibert: “If that would happen, ‘cause he was on that new medicine, you know ….”

Hanrahan: “The Prozac? And it makes him sleepy. So he was supposed to die in his sleep?”

Seibert: “Yes.”

After being charged with first-degree murder for her role in Donald’s death, Seibert sought to exclude both her prewarning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.” He acknowledged that Seibert’s ultimate statement was “largely a repeat of information … obtained” prior to the warning.

The trial court suppressed the prewarning statement but admitted the responses given after the Miranda recitation. A jury convicted Seibert of second-degree murder. On appeal, the Missouri Court of Appeals affirmed. The Supreme Court of Missouri reversed. We granted certiorari to resolve a split in the Courts of Appeals. We now affirm.

II

[The Court recounted the import of Miranda warnings to “to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause.” The Court concluded that “Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. To point out the obvious, this common consequence would not be common at all were it not that Miranda warnings are customarily given under circumstances allowing for a real choice between talking and remaining silent.”]

III

There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seeking to restore that old regime, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States (Chapter 23). Dickerson reaffirmed Miranda and held that its constitutional character prevailed against the statute.

The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation…. At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.” The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.

IV

When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed “interrogation practices … likely … to disable [an individual] from making a free and rational choice” about speaking and held that a suspect must be “adequately and effectively” advised of the choice the Constitution guarantees. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.

Just as “no talismanic incantation [is] required to satisfy [Miranda’s] strictures,” it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’” The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.

There is no doubt about the answer that proponents of question-first give to this question about the effectiveness of warnings given only after successful interrogation, and we think their answer is correct. By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.

V

Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad, but the argument disfigures that case. Although the Elstad Court expressed no explicit conclusion about either officer’s state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally.

The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.

At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used. Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way Officer Hanrahan set the scene by saying “we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.

VI

Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible. The judgment of the Supreme Court of Missouri is affirmed.

Justice KENNEDY, concurring in the judgment.

The interrogation technique used in this case is designed to circumvent Miranda v. Arizona. It undermines the Miranda warning and obscures its meaning. The plurality opinion is correct to conclude that statements obtained through the use of this technique are inadmissible. Although I agree with much in the careful and convincing opinion for the plurality, my approach does differ in some respects, requiring this separate statement.

In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. That approach would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the … testimony.”

This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda. The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice SOUTER points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise justify its use.

Further, the interrogating officer here relied on the defendant’s prewarning statement to obtain the postwarning statement used against her at trial. The postwarning interview resembled a cross-examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. This shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.

The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.

The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on “whether [the] Miranda warnings delivered midstream could have been effective enough to accomplish their object” given the specific facts of the case. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations. In my view, this test cuts too broadly. Miranda’s clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity. I would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.

The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are inadmissible and the conviction cannot stand.

For these reasons, I concur in the judgment of the Court.

* * *

In our final case, the Court considered whether physical evidence (as opposed to testimonial evidence) found as a result of a Miranda violation should be excluded from use against the defendant. Justice Kennedy, who concurred with the result in United States v. Patane but did not join the majority opinion, is the only Justice who voted with the winning side in both Patane and Seibert. Because these cases were decided on the same day and both concern evidence obtained after a Miranda violation, Justice Kennedy’s reputation as a swing vote was especially well deserved that day. Students should read his opinion in Patane with care.

Supreme Court of the United States

United States v. Samuel Francis Patane

Decided June 28, 2004 – 542 U.S. 630

Justice THOMAS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE and Justice SCALIA join.

In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion. Because the Miranda rule protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements, we answer the question presented in the negative.

I

In June 2001, respondent, Samuel Francis Patane, was arrested for harassing his ex-girlfriend, Linda O’Donnell. He was released on bond, subject to a temporary restraining order that prohibited him from contacting O’Donnell. Respondent apparently violated the restraining order by attempting to telephone O’Donnell. On June 6, 2001, Officer Tracy Fox of the Colorado Springs Police Department began to investigate the matter. On the same day, a county probation officer informed an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF), that respondent, a convicted felon, illegally possessed a .40 Glock pistol. The ATF relayed this information to Detective Josh Benner, who worked closely with the ATF. Together, Detective Benner and Officer Fox proceeded to respondent’s residence.

After reaching the residence and inquiring into respondent’s attempts to contact O’Donnell, Officer Fox arrested respondent for violating the restraining order. Detective Benner attempted to advise respondent of his Miranda rights but got no further than the right to remain silent. At that point, respondent interrupted, asserting that he knew his rights, and neither officer attempted to complete the warning.

Detective Benner then asked respondent about the Glock. Respondent was initially reluctant to discuss the matter, stating: “I am not sure I should tell you anything about the Glock because I don’t want you to take it away from me.” Detective Benner persisted, and respondent told him that the pistol was in his bedroom. Respondent then gave Detective Benner permission to retrieve the pistol. Detective Benner found the pistol and seized it.

A grand jury indicted respondent for possession of a firearm by a convicted felon. The District Court granted respondent’s motion to suppress the firearm, reasoning that the officers lacked probable cause to arrest respondent for violating the restraining order.

The Court of Appeals reversed the District Court’s ruling with respect to probable cause but affirmed the suppression order on respondent’s alternative theory.

As we explain below, the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context. And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articulated in cases such as Wong Sun does not apply. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings.

II

[B]ecause [the Miranda rule] necessarily sweep[s] beyond the actual protections of the Self-Incrimination Clause, any further extension of these rules must be justified by its necessity for the protection of the actual right against compelled self-incrimination. Indeed, at times the Court has declined to extend Miranda even where it has perceived a need to protect the privilege against self-incrimination.

It is for these reasons that statements taken without Miranda warnings (though not actually compelled) can be used to impeach a defendant’s testimony at trial though the fruits of actually compelled testimony cannot. More generally, the Miranda rule “does not require that the statements [taken without complying with the rule] and their fruits be discarded as inherently tainted.” Such a blanket suppression rule could not be justified by reference to the “Fifth Amendment goal of assuring trustworthy evidence” or by any deterrence rationale, and would therefore fail our close-fit requirement.

Furthermore, the Self-Incrimination Clause contains its own exclusionary rule. It provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” Unlike the Fourth Amendment’s bar on unreasonable searches, the Self-Incrimination Clause is self-executing. We have repeatedly explained “that those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.”

III

Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule. This, of course, follows from the nature of the right protected by the Self-Incrimination Clause, which the Miranda rule, in turn, protects. It is “‘a fundamental trial right.’”

It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation.

Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonous tree” doctrine of Wong Sun. It is not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts.

IV

In the present case, the Court of Appeals wholly adopted the position that the taking of unwarned statements violates a suspect’s constitutional rights. But Dickerson’s characterization of Miranda as a constitutional rule does not lessen the need to maintain the closest possible fit between the Self-Incrimination Clause and any judge-made rule designed to protect it. And there is no such fit here. Introduction of the nontestimonial fruit of a voluntary statement, such as respondent’s Glock, does not implicate the Self-Incrimination Clause. The admission of such fruit presents no risk that a defendant’s coerced statements (however defined) will be used against him at a criminal trial. In any case, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation. There is simply no need to extend (and therefore no justification for extending) the prophylactic rule of Miranda to this context.

Similarly, because police cannot violate the Self-Incrimination Clause by taking unwarned though voluntary statements, an exclusionary rule cannot be justified by reference to a deterrence effect on law enforcement.

Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings.

Justice KENNEDY, with whom Justice O’CONNOR joins, concurring in the judgment.

In Oregon v. Elstad evidence obtained following an unwarned interrogation was held admissible. This result was based in large part on our recognition that the concerns underlying the Miranda v. Arizona rule must be accommodated to other objectives of the criminal justice system. I agree with the plurality that Dickerson v. United States did not undermine these precedents and, in fact, cited them in support. Here, it is sufficient to note that the Government presents an even stronger case for admitting the evidence obtained as the result of Patane’s unwarned statement. Admission of nontestimonial physical fruits (the Glock in this case), even more so than the postwarning statements to the police in Elstad does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself. In light of the important probative value of reliable physical evidence, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect’s rights during an in-custody interrogation. Unlike the plurality, however, I find it unnecessary to decide whether the detective’s failure to give Patane the full Miranda warnings should be characterized as a violation of the Miranda rule itself, or whether there is “[any]thing to deter” so long as the unwarned statements are not later introduced at trial.

With these observations, I concur in the judgment of the Court.

* * *

In our next chapter, we review the basics of how courts consider motions to suppress evidence under the exclusionary rule. We also examine the availability of monetary damages as a remedy for violations of criminal procedure rules grounded in constitutional law.