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The 'fruits' of Miranda violations.

In United States v. Patane (1) and Missouri v. Seibert, (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, should evidence obtained as a result of it be excluded as well?

In Patane, the defendant, a convicted felon, was arrested for violating a domestic restraining order. 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 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 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" of the Miranda violation, as was the second confession of a suspect who had been warned of his or her Miranda rights. (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 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 at best." (11) Justice William Brennan hotly disputed this assertion in a dissent with extensive reference to police interrogation 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, 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" 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 should be the basis of the Fourth Amendment exclusionary rule, (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 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 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 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 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" 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" 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 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, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. 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] IIA5 and IIC3 of each chapter (Craig Bradley cd., 1999).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at
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Date:Dec 1, 2003
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