Timothy P. O'Neill 

Chicago Daily Law Bulletin

August 13, 2004

MIRANDA ISN'T JUST ABOUT FIFTH AMENDMENT

So here is the crucial question about Miranda warnings:

Adams, suspected of killing his wife, is arrested and placed in an interrogation room. Several minutes later a police officer walks into the room, sits down, and says, "I just have one question: Did you kill your wife?" Adams says "Yes, I'm glad you asked" and proceeds to give a complete confession.

Can Adams' statements be used at his murder trial in the prosecution's case-in-chief?

Of course not. The statements are the product of a custodial interrogation not preceded by Miranda warnings and waiver. They obviously cannot be used in the state's case-in-chief. Miranda v. Arizona, 384 U.S. 436.

But the question is: Why? Where is the constitutional violation in this scenario?

Miranda was predicated on the Fifth Amendment's self-incrimination clause. In 1897 the U.S. Supreme Court held that this clause was the federal source for the guarantee that the admissibility of confessions was governed by the "voluntariness" test. Bram v. U.S., 168 U.S. 532, 542 (1897).

That is, a confession is admissible only if it the product of an uncoerced exercise of a suspect's free will. The "voluntariness" test was applied to the states through the 14th Amendment's due process clause in Brown v. Mississippi, 297 U.S. 278 (1936). Brown illustrates one of the classic examples of an involuntary confession: a suspect was tied to a tree and whipped until he confessed. The court later held that a confession could be involuntary not only because of physical, but also mental, coercion. Leyra v. Denno, 347 U.S. 556 (1954) (confession "involuntary" when obtained by state doctor pretending he was offering "treatment").

Can we really compare the one question asked of Adams in the interrogation room with Brown's being tied to a tree? Why does the one un-Mirandized question-and-answer violate the Fifth Amendment?

Over the years the court has offered different rationales. The Burger court described Miranda as a "prophylactic rule" -- one that over-protects the right against self-incrimination. Oregon v. Elstad, 470 U.S. 298, 305 (1985). That is, sometimes a statement obtained in violation of Miranda actually violates the Fifth Amendment and sometimes it does not.
Others have seen a Miranda violation as establishing a "presumption" that the resulting statement has been unconstitutionally obtained. New York v. Quarles. 467 U.S. 649, 664 (O'Connor, J., concurring in judgment in part and dissenting in part) (statements obtained in violation of Miranda are "presumed compelled"); U.S. v. Patane, No. 02-1183 (6/28/04) (six justices signing on to two different opinions characterizing a Miranda violation as creating a "presumption of coercion").

Four years ago the court unequivocally held that Miranda was indeed a constitutionally-based rule. Dickerson v. U.S., 530 U.S. 428 (2000). Yet last year six members of the court held that a Miranda violation results in no constitutional violation in the interrogation room itself. Chavez v. Martinez, 538 U.S. 760 (2003). Instead, the Fifth Amendment is implicated only if the statements are actually used in a criminal case against the suspect.
Not finding a constitutional violation in the interrogation room has several serious implications. Standing alone, a Miranda violation, however egregious, will not support a Fifth Amendment claim under section 1983. Chavez, supra. Nor will it result in suppression of resulting physical evidence. Patane, supra. And it is questionable whether any "fruit of the poisonous tree" analysis applies to Miranda violations. Seibert, (Souter, J., announcing the judgment of the court in an opinion joined by Stevens, Ginsburg and Breyer), slip op. 10, n.4; (O'Connor, J., dissenting with Rehnquist, Scalia, and Thomas), slip op. 1-2; Patane, (Thomas, J., announcing the judgment of the court in an opinion joined by Rehnquist and Scalia) slip op. 10. But see Patane (Souter, J., dissenting) slip op. 2 and (Breyer, J., dissenting); Seibert, (Breyer, J., concurring).

Can we find a constitutional violation in the interrogation room at the moment of a Miranda violation without resorting to "prophylactic rules" and "presumptions"?
Consider this. A suspect in a custodial interrogation situation arguably has a "reasonable expectation of privacy" over his own thoughts. Katz v. U.S., 389 U.S. 347 (1976). Through interrogation, the government literally wishes to "search" his mind and "seize" his answers. Intangibles such as words are capable of being seized. Berger v. New York, 388 U.S. 41 (1967). Therefore, a custodial interrogation can be characterized as a warrantless search and seizure.

The police may unquestionably conduct a warrantless search and seizure as long as they have a person's "consent." The problem with "custodial interrogation" is that the atmosphere may fool the suspect into believing that he has a duty to answer the police questions. Compare Bumper v. North Carolina, 391 U.S. 543 (1968). Usually the police have no duty to warn a person that he has a right to refuse consent to a warrantless search. Schneckloth v. Bustomamonte, 412 U.S. 218, 248-49 (1973). However, Schneckloth specifically states that it did not apply to a consent situation involving a person in custody. Schneckloth, at 248 and 240 n. 29. Therefore, the Miranda warnings and waiver can be alternatively considered as a device for obtaining Fourth Amendment "consent" to a warrantless search -- i.e., the custodial interrogation.

This Fourth Amendment perspective makes us realize how limited the values of the Fifth Amendment are in a custodial interrogation setting. Under the Fifth Amendment, Miranda protects a suspect only from police "compulsion" or "coercion." But the Fourth Amendment protects much more -- it protects an individual's autonomy interests against government intrusion into his innermost thoughts.

The Fifth Amendment merely guards against police compulsion or coercion. But the Fourth Amendment protects more -- it guards against an overly-polite police officer nevertheless hoping that the atmosphere of "custodial interrogation" will convince a suspect that he must answer the officer's questions.

In our hypothetical, it would take some imagination -- or at least a presumption -- to argue that Adams was either "coerced' or "compelled." But from a Fourth Amendment perspective, what we have is a warrantless search and seizure without the suspect's consent. The Miranda waiver functions just as much as "consent" under the Fourth Amendment as it does a waiver of Fifth Amendment rights.

So why did the Miranda court not use a Fourth Amendment analysis as well as a Fifth? Check the dates of the Fourth Amendment cases cited above. Note that every single case was decided after Miranda. When Miranda came down in 1966 the court had not even articulated its famous "reasonable expectation of privacy" standard in Katz. If Miranda had been decided even two years later, perhaps the court would have used both the Fourth and Fifth Amendments in reaching its decision. (For more on this subject, see my article Rethinking Miranda: Custodial Interrogation as a Fourth Amendment Search and Seizure, 37 U.C. Davis Law Review 1109 (2004).)

When police engage in custodial interrogation without proper Miranda warnings and waiver, the Fourth Amendment mandates that the first answer given by the suspect must be suppressed as the fruit of an unconstitutional search and seizure.
Unlike a Fifth Amendment analysis, the constitutional violation is complete in the interrogation room. And unlike a Fifth Amendment analysis, Wong Sun v. U.S., 37 U.S. 471 (1963), would allow the suppression of "fruits of the poisonous tree."
It may be that the problems caused by viewing Miranda solely as a Fifth Amendment case may be resolved by seeing Miranda as implicating both Fourth and Fifth Amendment rights.