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The Original Intent of Miranda vs AZ in 1966
 
When Earl Warren wrote Miranda -- and one may read the original opinion -- the intent was clear.  Miranda was THE right against involuntary confessions.  If the police failed the give these rights, then ALL confessions and fruits (of the poisoned tree) were excluded from ALL proceedings.  It was to make law enforcement easier by eliminating the "totality of the circumstances".  In reality, it was to deny the police confessions, and force them to go out in the field to build a case.   Confessions are INHERENTLY unreliable, and sometimes the real culprit gets away because someone else confessed to the crime.
Once the Miranda rights were given, then the suspect may waive them and the right to have an attorney present.  (Thus, Miranda is really a combination of Fifth and Sixth Amendment rights.)  However, should the suspect request an attorney, "interrogation MUST cease".
When Nixon's Gang of Four took over in 1972, they gradually perverted Miranda into a prophylactic (equivalent of a condom on the nose) to protect solely the right against self-incrimination.  Then they made excuses to allow Miranda violations into criminal cases.  Similar to the excuses against the exclusionary rule of the Fourth Amendment against unreasonable searches and seizures, the Nixon-Burger Court and the Reagan-Rehnquist Court continued to eat around the rights.  In 2000, in Dickerson vs US, two of the justices considered Miranda overruled -- Scalia and Thomas, forcing Rehnquist to defend it.
Two cases in 2004 reveal what they've been doing, and giving yet another reason to send the Schrub back to Texas.  Because Dickerson elevated Miranda into a constitutional rule, five of the justices are trying to limit its reach as protective of the trial right against self-incrimination.  However, if someone did confess against this right, giving probably cause for physical evidence, would the trial judge sign the warrant?  I would expect that the judge would strike the confession from the record and refuse to issue the search warrant.  Therefore, the "fruits" should be excluded (just as in an illegal search) UNLESS the prosecution can prove that it could have produced the evidence legally.

US vs Patane:  What is the definition of Miranda as a constitutional rule in Dickerson?
Thomas + Rehnquist & Scalia
failure to give a suspect Miranda warnings does not require suppression of the physical fruits of the suspect's unwarned but voluntary statements
A Miranda is prophylactic to the Fifth's Clause
B Mere failure to give Miranda warnings does not violate a suspect's constitutional rights or even the Miranda rule, be it negligent or deliberate.  It is sufficient to exclude unwarned statements from admission into evidence.
Kennedy & O Connor, concur
Admission of nontestimonial physical fruits does not risk admitting into trial an accused's coerced incriminating statements.  Probative physical evidence cannot justify exclusion as a deterrence.
Souter + Stevens & Ginsburg, dissent
The majority adds an important inducement for interrogators to ignore the rule in that case.  Miranda violations raise a presumption of coercion.
Breyer, dissent
Seibert suggests that courts would exclude physical evidence derived from unwarned questioning unless failure to warn was in "good faith" as in Elstad.
My explanation:
Patane and Seibert confuse the issue, solely because Kennedy decided both.  Scalia and Thomas considered Miranda legislatively overruled, and Thomas hinted that police may still overrule in practice by not giving Miranda warnings.  In effect, it would revert to the standards of voluntariness, which existed before Miranda.  As soon as I saw that Thomas had written the opinion, I knew what was coming.  Kennedy and O Connor would not go as far as he did, virtually billboarding how to circumvent Miranda by simply not giving the warnings.
I would exclude the physical evidence as a violation of the Fourth Amendment.  Why didn't the police get a search warrant for the Glock to prove the defendant owned a gun in violation of his status as a convicted felon?  I suspect they had no probable cause for the warrant, and failure to warn, even though the defendant waived it, allowed them to gain the evidence through confession, which is hardly probable cause.
I would distinguish Elstad in that officers did not place Elstad in quasiarrest, which is when Miranda begins effect and which Orozco vx TX (1968) clarified.  Call it "good faith", but in that context, I would allow the later confession at the stationhouse as independent of a quick admission to a burglary at the suspect's home.
In this case, Kennedy using the precedents, concludes that the fruits of an unwarned confession have an even strong case for admitting them into evidence than Tucker, Quarles, et al.  With that in mind, let's look at Seibert.
 

MO vs Seibert
This case turned on Kennedy's irritation that police deliberately circumvented Miranda.  Obviously, Elstad opened the door down this road.  The police would try to elicit a confession, then Mirandize the suspect, then elicit the confession again.  I agree with the plurality on this case.  I would have limited Elstad to the suspect was NOT in quasiarrest or "when a reasonable person would know that he is not free to go", as Orozco decided over intense questioning in the suspect's home.
Souter + Stevens, Ginsburg, & Breyer
A  Midstream recitations of warnings after interrogation and unwarned confession could NOT comply with Miranda's constitutional requirement.
B  Interrogating in sucessive, unwarned and warned phases raises a  new challenge to Miranda.
C  Warnings withheld until after interrogation and confession will be ineffective in preparing a suspect for successive interrogation, close in time and similar in content.
D  Elstad: The stationhouse questioning could be seen as a distinct experience from a short conversation at home.
Kennedy, concur
Postwarning statements related to prewarning statements must be excluded unless curative measures occur.  Elstad balanced and pragmatically enforced the Miranda warnings.  Such measures should ensure that a reasonable person in the suspect's situation would understand in the import and effect of the Miranda warning and waiver.  (Could this be a voluntariousness test?--Editor)  A substantial break in time and circumstances or an additional warning on the likely inadmissibility of the prewarning statement may suffice in most instances.
I think the plurality cuts too broadly in excluding physical evidence.
Note: Kennedy seems to want warnings in such cases to include informing that the previous confession was inadmissible.  Like the original Miranda warnings, it would simplify law enforcement in the manner of Miranda itself.
I would follow a slightly different line.  Like Dunaway vs NY (1979), I would write that Miranda does not purge an illegal confession any more than an illegal arrest.
Breyer, concur
Courts should exclude the "fruits" of the initial unwarned questioning unless failure to warn was in "good faith".
O Connor + Rehnquist, Scalia, & Thomas, dissent
Agreement: there is no "fruits" nor subjective intent (The latter means that the police did not deliberately intend to  cicumvent Miranda because they were only following procedure, which itself is obviously circumventing Miranda!)
Dickerson: Elstad refuses to apply "fruits" because unreasonable searches and seizures are different from unwarned interrogation (which explains why Souter did not go there).  The plurality does consider "fruits", not relevant to balance of deterrence vs societal cost, but the psychological judgment regading whether the suspect has been informed effectively of the right to remain silent.
We cannot look into the intent of the police, which would add a third step to Miranda and voluntariness inquiries.
Elstad rejected two lines of argument for suppression:
fruits of the poisonous tree
lingering compulsion
The psychological effects don't have constitutional implications.  I would analyze the two-step interrogation under voluntariness in Elstad.
Note:  Had the Court gone my way, they would have avoided this mess.  Throw away the second confession as the fruit of an illegal inquiry.  I find it amusing that O Connor refuses to look into the intent of the police, when she went along with the ridiculous "good faith" exception to the exclusionary rule (US vs Leon in 1984), in which they allowed illegally seized evidence under a faulty warrant because it doesn't "deter" police misconduct.
I also don't see any difference between fruits of an illegal search and the fruits of an illegal confession.  In fact, the exclusionary rule in the Fourth Amendment comes from the Fifth!  Why can't the exclusionary rule of the Fourth apply to the Fifth toward fruits?
 
 

Berghuis vs Thompkins  2010 1 June
What constitutes a waiver of Miranda rights when the defendant remains silent?
Kennedy+Scalia, Thomas, Roberts, & Alito
Silence during interrogation did not invoke the right to remain silent!
Standard test: free and deliberate choice rather than intimidation, coercion or deception (apparently invoking God is not deception)
Moran vs Burbine implied "silence with an understanding and coduct"
NC vs Butler "I will talke to you, but I'm not signing anything."
CO vs Connelly 3-hr interrogation not coercive
Note: the Sixth Amendment right to competent counsel is not really relevant here.
My take on this narrow ruling:
Is Kennedy using the fifth warning as consent?
The defendant read out loud and like Butler, refused to sign the waiver.
"right to decide at any time before or during questioning to use the right to remain silent and to talk with a lawyer"
Test of proper Miranda warnings:  Prosecution shows warning given, defendant understands the right, then an uncoerced confession inplies a waiver.
 
Sotomayer+ Stevens, Ginsburg, & Breyer
Thompkins did not waive the right of silence, from Miranda:
"a valid waiver will not be presumed simply from the slience of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained."
 
Conclusion: Kennedy connected Butler's statement as a waiver and Thompson's reading of the fifth right.warning also as a consent to continue questioning.
 
Other cases this year:
MD vs Schatzer
Questioning two years after the defendant asserted Miranda rights is long enough to try again, even though the defendant was in prison at the time.
 
FL vs Powell
The defendant could understand that a lawyer would be present during questioning by a reasonable interpretation of the warnings.

Know your rights, or risk losing them!

supremecourt1967.jpg

My favorite Supreme Court from 1967, going the same way as above:
Chief Justice Earl Warren in center
Hugo Black to his right. (1937)
William O Douglas to his left (1939)
John Marshall Harlan right of Black (1955)
Willaim Brennan left of Douglas (1956)
Potter Stewart (1958)
Byron White (1962)
Abe Fortas (1965)
Thurgood Marshall (1967)
Although I'd prefer Arthur Goldberg instead of Fortas.