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.
Seibert suggests that courts would exclude physical evidence derived from unwarned questioning unless failure to warn
was in "good faith" as in Elstad.
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
Souter + Stevens, Ginsburg, & Breyer
A Midstream recitations of warnings after interrogation and unwarned confession could NOT comply with Miranda's
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.
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.
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
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
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
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