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The 'fruits' of Miranda violations.

In United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area.  v. Patane (1) and Missouri v. Seibert Missouri v. Seibert, 542 U.S. 600 (2004), is a decision by the Supreme Court of the United States that struck down the police practice of first obtaining an inadmissible confession without giving Miranda warnings, then issuing the , (2) the Supreme Court has agreed to consider whether the "fruits" of Miranda violations should be admitted into evidence. (3) That is, assuming a suspect's initial statement is inadmissible That which, according to established legal principles, cannot be received into evidence at a trial for consideration by the jury or judge in reaching a determination of the action. , should evidence obtained as a result of it be excluded as well?

In Patane, the defendant, a convicted felon An individual who commits a crime of a serious nature, such as Burglary or murder. A person who commits a felony.

felon n. a person who has been convicted of a felony, which is a crime punishable by death or a term in state or federal prison.
, was arrested for violating a domestic restraining order restraining order: see injunction. . He interrupted the officer giving the Miranda warnings, saying he knew his rights. The officer then asked about a pistol, and the defendant told him where it was. The government conceded that this was a Miranda violation and that the statement could not be used. (4) The court also suppressed the pistol at Patane's trial for possession of a firearm by a convicted felon, and the government appealed. The Tenth Circuit affirmed the suppression order.

In Seibert, the arresting officer purposely did not give the Miranda warnings to a suspect in an arson/murder case. After the suspect made an incriminating in·crim·i·nate  
tr.v. in·crim·i·nat·ed, in·crim·i·nat·ing, in·crim·i·nates
1. To accuse of a crime or other wrongful act.

 statement, she was given the warnings, then made another incriminating statement. The officer admittedly used the first statement to elicit the second. (5) The first statement was not used at trial. The Missouri Supreme Court reversed the conviction, holding that the second statement should have been suppressed as well.

The dissenting Missouri justices in Seibert relied on the U.S. Supreme Court's decision in Oregon v. Elstad, which had held that suppression of the fruits of a Miranda violation was not appropriate. (6) In Elstad, a police officer arrested a teenage suspect at home and questioned him briefly in his living room, where the boy admitted his involvement in a burglary. The officer took him to the station, gave him the Miranda warnings for the first time, and obtained a detailed confession. Only this second confession was used at trial.

The Court stressed several themes in the Elstad decision. One was that "the prophylactic prophylactic /pro·phy·lac·tic/ (pro?-fi-lak´tik)
1. tending to ward off disease; pertaining to prophylaxis.

2. an agent that tends to ward off disease.

 Miranda warnings ... are not themselves rights protected by the Constitution." (7) Therefore, the fruits of a Miranda violation are not to be excluded automatically, as the fruits of a compelled confession, which is a constitutional violation, must be. (8)

Second, the Court cited United Stales v. Ceccolini for the proposition that the testimony of a live witness was an act of free will that "purged the taint taint

an unpleasant odor and flavor in a human foodstuff of animal origin. Caused by the ingestion of the substance, commonly a plant such as Hexham scent, or while in storage, e.g. milk stored with pineapples, or as a result of animal metabolism, e.g. boar taint.
" of the Miranda violation, as was the second confession of a suspect who had been warned of his or her Miranda rights Miranda rights (Miranda rule, Miranda warning) n. the requirement set by the U. S. Supreme Court in Miranda v. Alabama (1966) that prior to the time of arrest and any interrogation of a person suspected of a crime, he/she must be told that he/she has: "the right to . (9)

Third, the Elstad Court implied that the officer's failure to administer the Miranda warnings in that case may have been a good-faith mistake, since the teenager was being questioned in the living room of his own home by a single officer, with the boy's mother nearby in the kitchen. The Court observed, "Unfortunately, the task of defining custody is a slippery one, and the police investigating serious crimes cannot realistically be expected to make no errors whatsoever. If errors are made ... they should not breed the same irremediable ir·re·me·di·a·ble  
Impossible to remedy, correct, or repair; incurable or irreparable: irremediable errors in judgment.

 consequences as police infringement of the Fifth Amendment itself." (10)

Finally, the Court deemed the claim that the first statement led directly to the second to be "speculative and attenuated Attenuated
Alive but weakened; an attenuated microorganism can no longer produce disease.

Mentioned in: Tuberculin Skin Test


having undergone a process of attenuation.
 at best." (11) Justice William Brennan hotly disputed this assertion in a dissent with extensive reference to police interrogation interrogation

In criminal law, process of formally and systematically questioning a suspect in order to elicit incriminating responses. The process is largely outside the governance of law, though in the U.S.
 manuals that encouraged officers to use this very tactic because it was so effective. (12) But the majority insisted that the only issue was whether the second statement was "voluntarily made"--a requirement that, as long as officers had not used coercive tactics, would be satisfied by the administration of Miranda warnings before the second interrogation. (13)

Dickerson's effect

In Patane, the Tenth Circuit likewise had to contend with Elstad. The appeals court distinguished it on the ground that in Patane the "fruit" was a gun, rather than the "voluntary" statement of a witness or suspect. The Tenth Circuit also concluded that the Supreme Court's first reason for its Elstad decision--that a failure to give Miranda warnings did not rise to the level of a constitutional violation--had been undercut by Dickerson v. United States Dickerson v. United States, 530 U.S. 428 (2000), upheld the requirement that the Miranda warning be read to criminal suspects, and struck down a federal statute that purported to overrule Miranda v. Arizona. , in which the Court held that "Miranda announced a constitutional rule." (14)

The circuits do not agree on this point: Both the Third and Fourth circuits have held that Dickerson did not undercut Elstad. (15) These courts have relied on the Dickerson Court's reference to Elstad: "Our decision in that case--refusing to apply the traditional 'fruits' doctrine developed in Fourth Amendment cases--does not prove that Miranda is a nonconstitutional decision, but simply recognizes the fact that unreasonable searches ... are different from unwarned interrogation...." (16)

This statement is not necessarily a reaffirmation of Elstad's holding, as the Patane court pointed out. (17) The Tenth Circuit concluded that, after Dickerson, Elstad should at least be confined to its facts and not extended to fruits other than subsequent confessions. (18)

The First Circuit has taken another position, rejecting absolute rules and deciding each case on its own facts. In United State v. Faulkingham, a drug enforcement agent "understood that he had a suspect in custody that he intended to interrogate (1) To search, sum or count records in a file. See query.

(2) To test the condition or status of a terminal or computer system.
" but didn't give the warnings.

The court nevertheless admitted the statements of others, and physical evidence obtained as a result of the interrogation, because the agent's failure to administer the warnings in a fast-developing situation where the suspect apparently wanted to cooperate was deemed merely "negligent." (19)

In my view, neither the impact of the Dickerson holding nor the nature of the "fruit" should be the controlling factor in deciding admissibility. The real issue is whether Elstad has undercut police compliance with Miranda.

The Supreme Court has insisted that deterrence of police misconduct Police misconduct refers to objectional actions taken by police officers in connection with their official duties, which can lead to a miscarriage of justice. Types of misconduct
  • False confession
  • False arrest
  • Falsified evidence
  • Intimidation
 should be the basis of the Fourth Amendment exclusionary rule exclusionary rule

In U.S. law, the principle that evidence seized by police in violation of the constitutional protection against unreasonable search and seizure may not be used against a criminal defendant at trial.
, (20) and this principle would seem to apply equally regardless of which constitutional amendment was violated.

There is ample evidence that police are not just manipulating Elstad to gain confessions, but that they are being trained to do so. Patane cites many examples. (21) The incentive for officers to cheat is even greater when the suspect has asserted his or her right to silence or counsel after receiving Miranda warnings: If the police respect the law, they must stop questioning and get nothing; if they ignore the law and continue questioning, they can't use the first confession (which they wouldn't have gotten anyway), but they can use the fruits. Elstad is an engraved en·grave  
tr.v. en·graved, en·grav·ing, en·graves
1. To carve, cut, or etch into a material: engraved the champion's name on the trophy.

 invitation to police officers to cheat, and they have accepted it with relish. (22)

But this does not mean that every Miranda violation must automatically lead to suppression of the fruits as well as the confession. Rather, the Court should take a cue from the exception it carved out in United States v. Leon United States v. Leon, 468 U.S. 897 (1984)[1], was a search and seizure case in which the Supreme Court of the United States created the "good faith" exception to the exclusionary rule.  to the Fourth Amendment exclusionary rule for defective search warrants: If the government can show that the officers' failure to comply with the rules was due to a good-faith mistake, then the exclusionary remedy can be modified. (23)

This exception could arguably apply in both Elstad and Patane. As the Court pointed out in Elstad, it was unclear whether the suspect was "in custody" at the time the police first questioned him. And in Patane, the suspect's interrupting the warnings with the assertion, "I know my rights" left it unclear whether further warnings were required. (24) Assuming that both of these are considered technical, but good-faith, violations, it seems appropriate to limit the exclusionary sanction to the immediate incriminating response and to admit other evidence that arose from the violation, as the Court did in Elstad.

On the other end of the spectrum, when the police purposely flout flout  
v. flout·ed, flout·ing, flouts
To show contempt for; scorn: flout a law; behavior that flouted convention. See Usage Note at flaunt.

 the rules, as in Seibert, the fruits of the violation should be excluded. Any other ruling would make a mockery of the Court's recent reaffirmation of Miranda in Dickerson.

Most cases, however, will involve a relatively clear breach of the rules that criminal defendants will be unable to prove was deliberate. That is why the burden must be on the government to establish good faith; in most cases, this will be difficult to do. By proving good faith, I mean proving by a preponderance of the evidence preponderance of the evidence n. the greater weight of the evidence required in a civil (non-criminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor of one side or the other.  that a reasonably well-trained police officer would not have realized that the warnings were required or that interrogation was forbidden. Otherwise, the police will simply break the rules without admitting that they're doing so on purpose. The "negligent" behavior of the agent in Faulkingham would also violate this standard, since negligence, by definition, is not reasonable. The First Circuit is close to the mark, but tolerance of police "negligence" when the rules are so easy to follow encourages too much cheating. The analog to Leon, the Fourth Amendment case, is not perfect. Leon was based largely on the fact that the "mistake" in a defective-search-warrant case is made by the magistrate who issues the warrant, not by the police, in Patane and Seibert, the police made the mistakes. On the other hand, Leon has the effect of admitting all evidence illegally obtained if the error was made in good faith. Here, the only issue is whether secondary evidence should be admitted.

Given the Court's conclusion in Elstad that the Fourth and Fifth Amendment exclusionary rules are not the same and that "technical" Miranda violations should not lead to exclusion, this "good-faith exception In United States constitutional law, the good-faith exemption (also good-faith doctrine) is a legal doctrine providing an exemption to the exclusionary rule. " seems a reasonable compromise between the extremes of total inclusion and total exclusion. Moreover, it is in keeping with the less rigid approach of most other countries toward the exclusionary rule. (25)

My guess, however, is that the Court will affirm Seibert, denouncing the purposeful violation there, but reverse Patane, declaring that without a showing that the police deliberately violated Miranda, the "fruit of the poisonous tree The principle that prohibits the use of secondary evidence in trial that was culled directly from primary evidence derived from an illegal Search and Seizure.

The "fruit of the poisonous tree" doctrine is an offspring of the Exclusionary Rule.
" doctrine does not apply, and secondary evidence of all types may be used.

Although I agree that Patane's "automatic" exclusionary rule should be reversed and remanded, if the burden is not placed on the prosecution to establish good faith, the police will continue ignoring the Supreme Court's rules and illegally obtaining evidence. If the Court is unwilling to place that burden on law enforcement, the First Circuit's negligence standard is a decent compromise.


(1.) 304 F.3d 1013 (10th Cir. 2002), cert. granted, 123 S. Ct. 1788 (2003).

(2.) 93 S.W.3d 700 (Mo. 2002), cert. granted, 123 S. Ct. 2091 (2003).

(3.) The Court has agreed to hear a third case raising similar issues. United States v. Fellers, 285 F.3d 721 (8th Cir. 2002); cert. granted, 123 S. Ct. 1480 (2003).

(4.) 304 F.3d 1013, 1015.

(5.) 93 S.W.3d 700, 702.

(6.) 470 U.S. 298 (1985).

(7.) Id. at 305 (citations omitted).

(8.) Id. at 305-08.

(9.) Id. at 308-09, citing United States v. Ceccolini, 435 U.S. 268 (1978).

(10.) Id. at 309.

(11.) Id. at 313-14.

(12.) Id. at 328-29 (Brennan, J., dissenting).

(13.) Id, at 318.

(14.) 530 U.S. 428, 444 (2000).

(15.) United Stales v. DeSumma, 272 F.3d 176 (3d Cir. 2001), cert. denied, 122 S. Ct. 1631 (2002); United States v. Sterling. 283 F.3d 216 (4th Cir. 2002), cert. denied, 122 S. Ct. 2606 (2002).

(16.) Sterling, 283 F.3d 216, 219, quoting Dicker dick·er  
intr.v. dick·ered, dick·er·ing, dick·ers
To bargain; barter.

The act or process of bargaining.
 son, 530 U.S. 428, 441.

(17.) 304 F.3d 1013, 1024.

(18.) Id. at 1025.

(19.) 295 F.3d 85, 87, 94 (2002).

(20.) United States v. Leon, 468 U.S. 897. 910 (1984).

(21.) 301 F.3d 1013, 1027.

(22.) Id. at 1026. quoting Yale Kamisar Yale Kamisar is the Clarence Darrow Distinguished University Professor of Law Emeritus and Professor Emeritus of Law at the University of Michigan Law School as well as a tenured professor at the University of San Diego School of Law. , On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH v. i. 1. To lie hid; to skulk; to act, or carry one's self, sneakingly. . L. REV. 929, 933 (1995).

(23.) 468 U.S. 897.

(24.) See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE [section] 6.8(a) n.23 & cases cited therein (2d ed. 1999).

(25.) See CRIMINAL PROCEDURE: A WORLDWIDE STUDY [subsection] IIA (1) (Information Industry Association, Washington, DC) In 1999, IIA merged with SPA (Software Publishers Association) to become the Software & Information Industry Association. See SIIA. 5 and IIC See infranet. 3 of each chapter (Craig Bradley

    Craig Edwin "Braddles" Bradley (born October 23, 1963)[1] is a former South Australian Australian rules footballer and first class cricketer, who holds the record for senior Australian football games played.
     cd., 1999).

    CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law Indiana University School of Law is referring to either
    • Indiana University School of Law - Bloomington, or
    • Indiana University School of Law - Indianapolis
     in Bloomington. He can be reached by e-mail at
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    Author:Bradley, Craig M.
    Date:Dec 1, 2003
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