Criminal Law

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Scott Lewis

In State v. Yang, 2003 WI App 63, 233 Wis. 2d 545 (Ct. App. 2000), an in-custody suspect was given no Miranda warnings and made an admission as to the location of physical evidence (a gun). He was then given partial Miranda warnings, led police to the gun, and finally gave a confession after full Miranda warnings. The court held the gun and post-warning confession admissible in evidence, and further ruled that the “fruit of the poisonous tree” doctrine did not apply to voluntary inculpatory statements, notwithstanding a partial or full Miranda violation.

The Wisconsin Supreme Court overruled the Yang holding as to physical evidence, relying on Dickerson v. U.S., 530 U. S. 428 (2000), which held that Miranda was a constitutional (not a mere judge-made) rule. The Wisconsin court, along with many other state and federal courts, decided that physical evidence obtained as a result of a Miranda violation must be suppressed. State v. Knapp, 2003 WI 121, 265 Wis. 2d 278, para. 2 (2003).

On June 28, the U. S. Supreme Court put the matter to rest, holding — in two cases — that the “fruit of the poisonous tree” doctrine did not apply in the Fifth Amendment self-incrimination context. The two cases bore factual and legal similarities to the Wisconsin Yang case. Both cases were plurality decisions.

The first case, Missouri v. Seibert, 2004 WL 1431864, case number 02-1371, condemned a popular law enforcement “end run” around Miranda, which utilized a distortion of the ruling under Oregon v. Elstad, 470 U. S. 298 ( 1985). The technique was to interrogate the in-custody suspect, get a partial or full confession — knowing full well that the first confession would be inadmissible — administer Miranda, obtain a waiver, and then ask essentially the same questions as in the first interview in order to obtain statements that the police knew (or hoped) would be admissible under Elstad. The court did reiterate, as it had in Elstad, that the “fruit” of the first inadmissible confession did not necessarily taint the second confession.

In the second case, U.S. v. Patane, 2004 WL 1431768, case number 02-1183, the court squarely addressed the issue of whether physical evidence obtained as a result of a voluntary statement taken in violation of Miranda must be suppressed. The court answered no. In light of Patane, the judgment in Knapp was vacated by the U. S. Supreme Court and remanded back to the Wisconsin Supreme Court on June 30. (2004 WL 1459244. )
Justice David Souter delivered the lead four-justice opinion in Seibert. The suspect was interviewed involving a homicide resulting from an arson. The officer — ironically, doing as he was trained — deliberately failed to Mirandize Seibert, obtained incriminating statements from her, waited 20 minutes, then gave her the Miranda warnings and obtained a waiver and a second confession.

True to Elstad, the trial court ruled the first confession inadmissible, but the second admissible. The Missouri court of appeals agreed, but the Missouri Supreme Court viewed the second interrogation as a continuation of the original interrogation and a willful “end run” around Miranda which “would encourage Miranda violations and diminish Miranda’s role in protecting the privilege against self-incrimination.” 93 S. W. 3d 700, 706-707 (2002).

Souter noted that “[t]here are those…who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance.” As an example, Congress passed a federal statute “which lay dormant for years” aimed at effectively diluting Miranda, a statute which was rejected in the Dickerson decision because the “constitutional character [of Miranda] prevailed against the statute.”

Souter maintained that the ploy used in Seibert deprived the suspect of an opportunity to make an informed decision on exercising or waiving his rights. “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.”

Souter contrasted the facts in Elstad with the facts in Seibert and found them at “opposite extreme[s].” Elstad involved a brief discussion at Elstad’s home with an officer who made a “good faith” oversight in not administering the warnings. Elstad’s subsequent confession was made at the police station after he had been given the warnings and questioned at greater length. Souter observed that Elstad could reasonably have believed that the second interrogation was different enough in time, scope, and location to be a separate interrogation.

Seibert, in contrast, would have viewed her second interrogation as part of the same line of questioning. “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.”

The court held Seibert’s second confession inadmissible. Souter delivered a sharp rebuke to police departments employing the Seibert-type “end run”: “Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute.”

Justice Stephen Breyer concurred. He wrote separately to advocate a traditional (and, to Breyer, more understandable) “fruit of the poisonous tree” approach where a second confession (with benefit of Miranda warnings) would be admissible only if sufficiently “attenuated” from the first confession (without benefit of Miranda).

Justice Anthony Kennedy concurred in the judgment. Kennedy viewed the plurality’s ap
proach toward a “two-stage interview” as too broad. He advocated a narrower test: “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.” As an example of a curative measure, he suggested “an additional warning that explains the likely inadmissibility of the prewarning custodial statement…”

In the Patane case, the officer began reciting the Miranda warnings but the in-custody suspect interrupted, indicating he already knew his rights. The officer did not give any further warnings. After persistent questioning, Patane told the officer where he kept his Glock handgun. The federal district court suppressed the gun on grounds that the officers lacked probable cause to arrest Patane in the first place. The U. S. Court of Appeals for the Tenth Circuit affirmed, but on the alternative ground that the gun was the fruit of an unwarned statement. 304 F. 3d 1013, 1023 (10th Cir. 2002).

The Supreme Court reversed. Justice Clarence Thomas wrote the lead three-justice opinion announcing the judgment of the court. Initially, Thomas observed that “[t]he 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.”

Second, Thomas emphasized the “core privilege against self incrimination” as the basis for Miranda. He pointed out that the Self Incrimination Clause of the Fifth Amendment “cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements.” He recognized the privilege against self incrimination reaches beyond evidence to be used at the trial itself (such as grand jury testimony) and that the privilege must yield at times when outweighed by other factors (such as public safety).

Yet, the central theme has always been a prohibition against compelled — not voluntary — testimony. Indeed, as stated in the Dickerson decision, the “core ruling” in Miranda was “that unwarned statements may not be used as evidence in the prosecution’s case in chief,” but unwarned and voluntary, uncoerced statements could be used for impeachment. Thus, any exclusionary rule must be tied directly to self incrimination and not serve another purpose. “In short,” Thomas wrote, “nothing in Dickerson calls into question our continued insistence that the closest possible fit be maintained between the Self-Incrimination Clause and any rule designed to protect it.”

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Thomas then examined what, if any, deterrent effect an extension of the exclusionary rule of Miranda would have to physical evidence discovered through voluntary but unwarned statements. He observed that the deterrent effect of Miranda is that testimony obtained without benefit of the warnings cannot be used at trial. Put simply, a suspect’s constitutional rights are violated if such testimony is used against the suspect at trial; however, the same suspect’s rights are not violated “by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda.” Therefore, “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.”

Thomas concluded by once more noting the difference between statements that are actually coerced and statements taken without some or all of the warnings: “…although it is true that the Court requires the exclusion of the physical fruit of actually coerced statements, it must be remembered that statements taken without sufficient Miranda warnings are presumed to have been coerced only for certain purposes and then only when necessary to protect the privilege against self-incrimination.”

Justice Kennedy, joined by Justice Sandra Day O’Connor, concurred in the judgment. They agreed that “[a]dmission of nontestimonial 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.” Kennedy wrote separately, however, because he did not agree that it was necessary to determine whether a failure to warn violated Miranda or, in this case, what if anything was deterred since Patane’s statements were not used against him.

Souter, the author of the lead opinion of the Seibert plurality, bristled at the irony of the court strongly disapproving of one Miranda ploy, and on the same day approving what he in dissent, along with justices John Paul Stevens and Ruth Bader Ginsburg, called “an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained.”