The Supreme Court Revisits Miranda.

The end of the 20th century brought one of the United States' most significant legal fixtures, the Miranda warnings, before the Supreme Court in what likely will be one of the most closely watched Supreme Court decisions in the new century. As witnessed nightly on televisions across the United States for the last three decades, there may be no legal principle more firmly established in the country's popular culture than the Miranda warnings. Nearly every evening, an actor-turned-police officer informs an actor-turned-criminal of the following:

You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to consult with an attorney. If you cannot afford an attorney, one will be appointed for you. [1]

The role that these warnings have within this country's criminal justice system will be put to the test when the Supreme Court reviews a U.S. Court of Appeals for the Fourth Circuit Court ruling in United States v. Dickerson. [2] In Dickerson, the Fourth Circuit overturned a lower court decision [3] to suppress a confession obtained in violation of the Miranda warnings. The Fourth Circuit held that the admissibility of the confession should be assessed in light of a federal statute, codified at Title 18 United States Code, Section 3501 (18 U.S.C. 3501 or [ss] 3501), directing federal courts to apply a voluntariness standard to confessions in lieu of the Miranda requirements.

This article discusses the Fourth Circuit's holding in Dickerson and the federal statute relied on by the court. The article begins with a summary of the facts of Dickerson and addresses the lower court's decision to suppress the defendant's confession and the Fourth Circuit's reversal. The article then discusses the origins of [ss] 3501, particularly Congress' intent to restore a voluntariness test for determining the admissibility of confessions in federal court. The article concludes with a discussion of the possible impact Dickerson could have on law enforcement. The intention of this article is not to advocate how the Supreme Court should rule in Dickerson but, rather, to provide law enforcement a better understanding of the important issues raised in the case.

UNITED STATES v. DICKERSON

The Facts

On January 24, 1997, an individual armed with a semiautomatic pistol robbed a bank in Old Town Alexandria, Virginia. An eyewitness provided police with a description of the robber and getaway car, including a license plate number. Investigators determined that the getaway car was registered to Charles T. Dickerson. With this information in hand, approximately 10 FBI agents and a police officer went to Dickerson's apartment. Upon arriving at the apartment, the officers observed an automobile matching the getaway car. The agents knocked on the door and were greeted by Mr. Dickerson. Following a short conversation, Dickerson was asked whether he would accompany them to the FBI office in Washington, DC. Dickerson agreed and indicated that he would ride in an agent's car. Dickerson indicated at a later court proceeding that he had felt he did not have a choice but to accompany the agents to the field office. [4]

While still in the apartment prior to leaving for the office, Dickerson asked if he could get his coat from his room. As he picked up his coat, an agent observed a large amount of cash on the bed. Dickerson explained that the money was gambling proceeds from a recent trip to Atlantic City. Agents testified later that at the time they left Dickerson's apartment, he was not formally placed under arrest or handcuffed. [5] Several agents remained in the vicinity of the apartment once Dickerson was on his way to the FBI office.

At the FBI office, Dickerson denied any involvement in the bank robbery but admitted that he had driven to Old Town Alexandria on the morning of the robbery to look for a restaurant. He stated that while in Old Town, he had ran into a friend of his who asked for a ride to Maryland. At this point, a break in the interview occurred and one of the agents requested a telephonic search warrant to search Dickerson's apartment. The warrant was granted after the requesting agent summarized the facts and represented that Dickerson was not under arrest and could easily return home and destroy evidence. A judge concurred that probable cause existed and authorized the search. Agents searching the apartment located numerous items of evidence implicating Dickerson in the robbery. [6]

The agent requesting the telephonic warrant returned to the interview room and informed Dickerson that his apartment was about to be searched. Dickerson indicated that he wished to change his statement and admitted to being the getaway driver in several bank robberies. [7] Dickerson named another individual as the actual robber. After making these statements, Dickerson was placed under arrest.

Dickerson was charged with bank robbery and later moved to suppress the statements he made at the FBI office and the evidence seized at his apartment. The defense argued that the statements should be suppressed because he was not properly advised of his Miranda rights.

Timing of the Advice of Rights

The district court concluded that the confession was voluntary for purposes of the Fifth Amendment but nevertheless suppressed the statements because they were obtained in violation of Miranda. [8] At the suppression hearing, the timing of the Miranda advice of rights was in dispute. Specifically, there was a discrepancy as to whether they were provided prior to Dickerson's admission to being the getaway driver or after.

The district court judge concluded that the statements were provided in violation of Miranda after determining that the defendant was not given his Miranda rights until after he gave the statement. The district court also concluded, without challenge from the government, that Dickerson was in police custody for Miranda purposes when he was brought to the office. [10] Based on the determination that Miranda was violated, the district court judge suppressed Dickerson's statements.

THE GOVERNMENT'S APPEAL

Initially, the government requested a review of the district court's decision to suppress the statements on two grounds: 1) that Miranda had not been violated because there was a discrepancy with the time the Miranda warnings were provided, and 2) even if Miranda was violated, the confession should be admitted because it was voluntarily provided and, thus, consistent with 18 U.S.C. 3501 and should be permitted to be used against the defendant.

The Department of Justice eventually withdrew its request for reconsideration with respect to use of 3501, asserting that it would not argue the statute on the grounds that Congress did not have the authority to overrule Miranda and would not advocate the application of a statute of questionable constitutionality. [11]

Against this backdrop, the Fourth Circuit nevertheless concluded that it had the authority to apply 3501 to Dickerson's statements. [12] The court stated:

Because the Department of Justice will not defend the constitutionality of 3501--and no criminal defendant will press the issue--the question of whether the statute, rather than Miranda, governs the admission of confessions in federal court will most likely not be answered until a Court of Appeals exercises its discretion to consider the issue. Here the district court has suppressed a confession that, on its face, is admissible under the mandate of 3501. As a result, we are required to consider the issue now. [13]

18 U.S.C. 3501

Congress passed 18 U.S.C. 3501 partly in response to the Supreme Court's invitation in Miranda to develop alternative mechanisms to protect individuals who are the subject of custodial questioning and to "reverse the holding of Miranda v. Arizona." [14]

The Miranda Decision

Over 30 years ago, the Supreme Court expressed in Miranda concern with what the Court perceived to be an unfair advantage to the government during a custodial interview. The Supreme Court held that custodial interviews create a psychologically compelling atmosphere that countermands the Fifth Amendment privilege against self incrimination. [15] Accordingly, the Court fashioned a procedural set of rules in an attempt to level the playing field between the government and an in-custody subject. These procedural rules are, of course, the well-known Miranda advice of rights and the government's obligation to obtain a knowing, intelligent, and voluntary waiver of those rights from the subject prior to engaging in an interview.

In Miranda, however, the Supreme Court recognized that other alternatives may adequately safeguard the privilege against self-incrimination and alleviate the Court's concerns with respect to the inherently compelling pressures that work to undermine an in-custody subject's free will when being interviewed by the government. The Court stated:

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities.

Therefore, we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straightjacket which will handicap sound efforts at reform, nor is it intended to have this effect. [16]

The Court continued by expressly encouraging Congress and the states "to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws." [17]

The statute at issue in Dickerson was intended to restore a totality of the circumstances test to the admissibility of confessions and restore the principle of voluntariness as the touchstone in admitting confessions in federal courts. Section 3501 provides federal courts with a list of factors to consider when deciding whether statements made to the government were obtained in violation of the privilege against self-incrimination. The statute begins by instructing federal courts that statements "...shall be admissible in evidence if voluntarily given." [18] Courts then are instructed that all of the circumstances surrounding the confession should be taken into consideration, including:

* the time elapsing between arrest and presentment of the defendant making the confession, if the confession was made after arrest and before the presentment;

* whether the defendant knew of the nature of the offense that he was charged with or suspected of at the time of making the confession;

* whether the defendant was advised or knew that he was not required to make any statement (Miranda right);

* whether the defendant understood that the statement could be used against him (Miranda right);

* whether the defendant understood he had a right to an attorney (Miranda right); and

* whether the defendant was without the assistance of counsel when questioned. [19]

The statute then emphasizes that the test to be applied is a totality of the circumstances test by instructing courts that "[t]he presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession." [20]

Earlier Application of [ss] 3501 and the holding in Dickerson

Until Dickerson, the statute was largely ignored within the federal system with two notable exceptions. [21] In 1975, the 10th Circuit Court of Appeals applied the statute to a confession obtained from an in-custody interview and upheld the constitutionality of Congress' effort. [22] More recently, in Davis v. United States, [23] Justice Scalia made reference to [ss] 3501 in a footnote when he questioned the government's authority to refuse to argue the applicability of the statute in cases where Miranda violations occur but the statements obtained are arguably voluntarily provided. [24]

Agreeing with Justice Scalia and concluding that the procedural set of rules established in Miranda is not constitutionally required, the Fourth Circuit Court of Appeals concluded that [ss] 3501 is a constitutional exercise of Congress' [25] power. Thus, according to the court, the admissibility of confessions in federal court is governed by the voluntariness standard proscribed in [ss] 3501. The court also held that based on the district court's conclusion that the confession was voluntary, its suppression was improper. [26]

As a result of the holding in Dickerson, [ss] 3501 has been transformed from a largely unknown federal provision to the topic of a great deal of public attention. The final outcome of this much-debated issue will likely resolve the question of whether Congress has the authority to legislatively "overrule" the Miranda decision. The answer to this question will likely require Supreme Court clarification on the extent to which the Miranda warnings are constitutionally required. The Miranda Court's apparent invitation for federal and state governments to craft alternative measures, as discussed previously, may play a significant role in the current Court's treatment of [ss] 3501. [27]

POSSIBLE IMPACT ON POLICE PRACTICES

Any change in the legal landscape with respect to Miranda that may occur as the result of the Supreme Court's decision in Dickerson will certainly generate a great deal of attention but may not alter the current law enforcement practice of advising in-custody subjects of their rights. In the event that the Supreme Court agrees with the Fourth Circuit and upholds the federal statute, the initial impact will be felt only at the federal level. The statute in Dickerson represents an attempt by the U.S. Congress to provide an alternative to Miranda for use in federal courts. Assuming this attempt receives the support of the U.S. Supreme Court, individual states, should they so choose, would have to fashion their own alternatives to the Miranda warnings to ensure that the privilege against self-incrimination is adequately protected.

Additionally, even if the federal statute is upheld and states exercise their legislative prerogatives and adopt similar measures, the look of the interview will, in all likelihood, not significantly change. The statute includes consideration of such factors as whether subjects were advised of their right to an attorney, appointed if necessary; their right to silence; and the potential use of the statement. Such warnings were provided even before they became known as "Miranda warnings." In Miranda, the Supreme Court discussed the FBI's pre-Miranda practice of advising arrested subjects of their rights prior to attempting to interview them. [28]

In other words, even if the Supreme Court adopts the Fourth Circuit's reasoning, the voluntariness factors set forth in [ss] 3501 should ensure prompt judicial condemnation of any inappropriate physical or psychological coercive pressure. [29] Any legislatively adopted alternative to the Miranda requirements must meet the strict mandate of voluntariness and likely would impose requirements on law enforcement that are significantly similar to the Miranda requirements.

CONCLUSION

In what likely will be one of the most significant early Supreme Court decisions of the new century, a federal statute will be measured against one of the most well-recognized legal principles, the Miranda advice of rights. The reality is that since any alternative to the Miranda warnings must satisfy strict principles of voluntariness, even if the Supreme Court upholds [ss] 3501, exchanges between law enforcement and arrested subjects should remain similar to what has existed for the past three decades. This will further one of the Miranda Court's guiding principles: "The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law." [30]

Endnotes

(1.) Miranda v. Arizona, 384 U.S. 436, 479 (1966).

(2.) 166 F.3d 667 (4th Cir. 1999).

(3.) 971 F. Supp.1023 (E.D. Va. 1997).

(4.) 166 F.3d at 673, n.2.

(5.) Id. at 675, n.6.

(6.) Id. at 673-675.

(7.) Id. at 674.

(8.) 971 F. Supp. 1023 (E.D. Va. 1997). The lower court also suppressed the evidence seized during the execution of the search warrant after concluding that the warrant failed to describe with particularity the items to be seized. The circuit court of appeals reversed this ruling, concluding that the items were sufficiently described, or, in the alternative, the agents executing the warrant acted in good faith. 166 F.3d at 694.

(9.) 166 F.3d at 676.677. The district court judge believed the defendant's testimony regarding the timing of the rights. The agent testified that he read the defendant his rights "shortly after" obtaining the warrant when the warrant was issued at 8:50 p.m. and the advice of rights form was executed at 9:41 p.m. The district court reasoned that this apparent discrepancy in times suggests that Dickerson was not properly advised of his Miranda rights.

(10.) 166 F.3d at 675, n.5.

(11.) Id. at 682, n.16, citing a 9/10/97 letter from Attorney General Reno to Congress notifying Congress that it would not defend the constitutionality of 18 U.S.C. 3501.

(12.) For a discussion of the parties arguing 3501 before the Fourth Circuit in Dickerson and the court's authority to rule on arguments proposed by amicus briefs see 166 F.3d at 680, n.14.

(13.) Id. at 683, citing United States v. Davis, 512 U.S. 452, 464 (Scalia, J., concurring) (noting that the "time will have arrived" to consider the applicability of 3501 the next time "a case comes within the terms of the statute is...presented to us").

(14.) S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2141.

(15.) Miranda v. Arizona, 384 U.S. at 448 ("[T]he modern practice of in-custody interrogation is psychologically rather than physically oriented...coercion can be mental as well as physical").

(16.) Id. at 467.

(17.) Id.

(18.) 18 U.S.C. 3501(a).

(19.) 18 U.S.C. 3501(b).

(20.) 18 U.S.C. 3501(b),

(21.) As noted in the Fourth Circuit's opinion, the statute has been referred to in cases where Miranda was not applicable but where voluntariness was a concern. See 166 F.3d at 688, n.19, citing U.S. v. Braxton, 112 F.3d 777 (4th Cir.), cert. denied, 118 S. Ct. 192 (1997); United States v. Wilson, 895 F.2d 168 (4th Cir. 1990).

(22.) United States v. Cracker, 510 F.2d 1129 (10th Cir. 1975).

(23.) 512 U.S. 452 (1994).

(24.) Davis at 465. Justice Scalia stated:

"This is not the first case in which the United States has declined to invoke 3501 before us--nor even the first case in which that failure has been called to its attention.... In fact, with limited exceptions, the provision has been studiously avoided by every Administration, not only in this Court but in lower courts, since its enactment more than 25 years ago.... Perhaps (though I do not immediately see why) the Justice Department has good basis for believing that allowing prosecutors to be defeated on grounds that could be avoided by invocation is consistent with the Executive's obligation to 'take Care that the laws be faithfully executed....' That is not the point. The point is whether our continuing refusal to consider 3501 is consistent with the Third Branch's obligation to decide according to the law. I think it is not."

See also United States v. Alvarez, 54 F. Supp. 2d 713, n.4 (W.D. Mich. 1999) (noting the government's refusal to argue 3501).

(25.) Dickerson at 691.

(26.) Id. at 692.

(27.) Of additional interest are Supreme Court cases referring to the rule as a procedural mechanism designed to protect a constitutional right and "not themselves rights protected by the Constitution." Quoting Michigan v. Tucker, 417 U.S. 433 (1974). See also Withrow v. Williams, 507 U.S. 680, 690-691 (1993) ("Miranda's safeguards are not constitutional in character."); New York v. Carlist, 467 U.S. 649 (1984); Duckworth v. Egan, 492 U.S. 195 (1989).

(28.) Miranda at 485-487.

(29.) See Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); Canty v. Alabama, 309 U.S. 629 (1940).

(30.) Miranda at 480, quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv L. Rev. 1, 26 (1956).