Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume 150, No. 130
Copyright (c) 2004 by Law Bulletin Publishing Company

July 2, 2004

MIRANDA CASES TIP BALANCE IN FAVOR OF PROSECUTION

The U.S. Supreme Court recently handed down two Miranda decisions that some defense lawyers had hoped might be a pair of defense wins. Missouri v. Seibert, No. 02-1371 (June 28); U.S. v. Patane, No. 02-1183 (June 28).
Officially, the defense and prosecution split. But a closer look at the decisions shows that the prosecution should consider both to be victories.

Here's the background.

Since Miranda v. Arizona, 384 U.S. 436, was decided in 1966, the court has waffled on whether the decision is constitutionally based. True, the Miranda decision is ostensibly predicated on the Fifth Amendment's self-incrimination clause. yet the Burger Court quickly began reinterpreting this landmark Warren Court decision. Beginning in 1974, it issued a series of decisions characterizing Miranda warnings not as constitutionally based but, rather, as a "prophylactic rule" that overprotected the right against self-incrimination. That is, sometimes a statement obtained in violation of Miranda actually violates the self-incrimination clause and sometimes it does not. According to this view, Miranda therefore sometimes excludes statements that are entirely proper under the Fifth Amendment.

Consider, for example, Oregon v. Elstad, 470 U.S. 298 (1985). There the police obtained some incriminating statements from defendant Elstad without giving him Miranda warnings. Later, the police properly "Mirandized" Elstad and he confessed. The court held that the first statements were inadmissible because they were obtained in violation of Miranda. Elstad then argued that because he "let the cat out of the bag" with the inadmissible statements, the second set of statements should also be suppressed as "fruit of the poisonous tree." See Wong Sun v. U.S., 371 U.S. 471 (1963).

The Elstad court disagreed. The court held that the fruit of the poisonous tree doctrine presumes a constitutional violation. Although the first set of statements had to be suppressed because of the Miranda violation, the court held that these statements were nonetheless "voluntary" and thus constitutionally obtained. The court held that the prophylactic nature of Miranda resulted in the suppression of statements that were otherwise admissible. Since there was no constitutional violation related to the first set of statements, and since the second set was properly obtained under Miranda, the second set of statements was admissible.

The issue of whether Miranda is a "constitutional rule" or merely a "prophylactic rule" appeared to be finally resolved four years ago by Dickerson v. U.S., 530 U.S. 428 (2000). There the court unequivocally held that Miranda was indeed a constitutional decision, although it shed little light on exactly why the self-incrimination clause requires Miranda warnings.
But last year the court appeared to backtrack in a little-noticed decision called Chavez v. Martinez, 538 U.S. 760 (2003). Chavez, which involved the Civil Rights Act, 42 U.S.C. [sec]1983, held that there is no Fifth Amendment violation when the police merely obtain statements through custodial interrogation without providing Miranda warnings. Instead, the Fifth Amendment is implicated only if the statements are actually used in a criminal case against the suspect. Thus, it is impossible to find a constitutional violation in the interrogation room itself based solely on the failure to follow Miranda.

The plurality opinion (written by Justice Clarence Thomas and joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor and Antonin Scalia) stated that "mere coercion [caused by a Miranda violation] does not violate the text of the self-incrimination clause absent use of the compelled statements in a criminal case against the witness.' And Justice Anthony M. Kennedy, in an opinion joined by Justice John Paul Stevens, described Miranda as merely a "rule of [evidence] exclusion" and stated that a Miranda violation does not result in a constitutional violation at the time it occurs in the interrogation room.

In the face of Dickerson and Chavez, lower courts struggled over several issues. If Dickerson is correct that Miranda is indeed constitutionally based, should a Miranda violation now be found to be the source of fruit of the poisonous tree? Does Elstad need to be overruled? And where does Chavez figure in all this?

In U.S. v. Patane, a Miranda violation directly resulted in the recovery of an illegal firearm. Samuel Patane argued that since Dickerson held that Miranda is constitutionally based, the firearm must be suppressed as fruit of the poisonous tree.
The Supreme Court rejected this in a 5-4 decision. Three members of the majority -- Rehnquist, Scalia and Thomas -- essentially repeated their opinion in Chavez that Miranda is simply rule of evidence exclusion that results in no discrete constitutional violation in the interrogation room itself; thus, there is no poisonous tree. Kennedy and O'Connor concurred only in the judgment, however, and largely on stare decisis grounds; they did not believe that Dickerson intended to disturb the previous three decades of court decisions interpreting Miranda. (They were strangely silent about the opinions they had expressed only 12 months before in Chavez.)

In Missouri v. Seibert, the court had the opportunity to revisit Oregon v. Elstad. The major factual difference was that unlike Elstad, where the failure to give Miranda warnings was based on inadvertence, the failure here was deliberate. The police officer admitted that he was following a procedure approved by his department known as "question first." This involves deliberately withholding Miranda warnings before a custodial interrogation. The officer accepts the fact that all answers will be inadmissible in the prosecution's case-in-chief. But if the officer obtains incriminating statements, he is then trained to provide Miranda warnings, get a waiver and then repeat the questions until he once again hears the answers he received earlier. The prosecution then argues that this second set of answers is admissible under Elstad. This is what occurred in Seibert.

Although the Supreme Court in Seibert suppressed both sets of statements in a 5-4 decision, it failed to drive a stake through Elstad's heart. Rather than overrule Elstad under a fruit of the poisonous tree analysis, the four-justice plurality simply found the facts of Patane to be distinguishable from Elstad. While the two interrogations in Elstad were separate -- based on details such as the first occurring in a home and the second at a police station -- the court found the two interrogations in Patane to be simply "parts of a continuum." Souter, J., announcing the judgment of the court, slip op. 15.
Yet the actual holding of the court -- as opposed to the judgment expressed in the plurality opinion -- was provided by Kennedy's opinion concurring in the judgment. (When no single rationale gets the votes of five justices, then the holding of the court is the position taken by the justice who concurred in the judgment on the narrowest grounds. See Marks v. U.S., 430 U.S. 88 (1977).

Forget about overruling Elstad; Kennedy, expressing the holding of the court, said that "Elstad was correct in its reasoning and its result." Kennedy, J., concurring in the judgment, slip op. 2. The court held, through Kennedy, that Elstad would be applicable in all but the "infrequent case" where a court first found through a subjective inquiry that the police officer had flouted Miranda in a "calculated" and "deliberate" way. Slip op. 3-4.

But wait! Even a calculated, deliberate use of the Miranda-flouting "question first" policy will not always result in the suppression of the second set of statements. Kennedy (again, providing the holding of the court) says the prosecution can still get these statements admitted if it shows that the police engaged in "curative measures" -- such as additional warnings about the inadmissibility of the first statements or a substantial break in time between the two interrogations.

Bottom line? Dickerson changes nothing. All the Burger Court gloss erroneously predicated on Miranda's not being constitutionally based is still alive and well. Patane is a huge win for the police. And we may never live to see another statement suppressed under the prosecution-friendly holding provided by Kennedy in Seibert.

So where does Miranda go from here? In my August column, I will suggest a new way of looking at Miranda -- through the Fourth Amendment.