State v. Crump

DROWOTA, Justice,

dissenting.

I agree that Defendant’s invocation of his right to remain silent was not scrupulously honored. However, because the record does not establish that the officers used “deliberately coercive or improper tactics in obtaining the initial statement,” see Oregon v. Elstad, 470 U.S. 298, 314 , 105 S.Ct. 1285, 1296 , 84 L.Ed.2d 222 (1985), I would hold that the police failure to scrupulously honor Defendant’s initial invocation of Miranda silence did not rise to the level of a constitutional violation. Therefore, the admissibility of Defendant’s later confession should be determined by examining whether it was made voluntarily.

The Fifth Amendment to the United States Constitution and Article I, Section 9, of the Tennessee Constitution prohibit compulsory self-incrimination. Actual compulsory self-incrimination, for example, torture or repeated efforts to wear down a defendant’s resistance, directly violates these constitutional provisions.

In Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), the United States Supreme Court promulgated safeguards to combat the compulsion presumed to be present in all custodial interrogations. Statements obtained in violation of these procedural safeguards are excluded because the procedural violation creates a presumption of compulsion. Violation of the Miranda safeguards does not, however, necessarily mandate the finding of a constitutional violation. See Elstad, 470 U.S. at 307 , 105 S.Ct. at 1292 (“Miranda ... provides a remedy even to the defendant who has suffered no identifiable constitutional harm”).

Here, Defendant invoked his right to remain silent. The officers then violated Miranda when they asked Defendant if he would "mind riding with [them] back to the scene of where he had escaped.” Because the officers did not scrupulously honor Defendant’s invocation, the resulting state *273 ments were properly excluded according to the dictates of Miranda . However, while this violation resulted in a presumption of compulsion under Miranda , it did not rise to the level of actual compelled self-incrimination so as to constitute a constitutional violation: Defendant was not forced to accompany the officers, nor was he subject to torture or repeated efforts to wear down his resistance.

Because there was no constitutional violation, the Defendant’s subsequent taped confession is not to be evaluated in terms of whether it is inadmissible “fruit of the poisonous tree.” Rather, the confession is admissible if, after examining the totality of the circumstances surrounding the entire course of police conduct, the confession is found to have been voluntarily made. I would so find, and affirm the Court of Criminal Appeals’s holding that the Defendant, after being given a second Miranda warning, validly waived his right to remain silent and that therefore the subsequent confession was admissible. “When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.” Elstad, 470 U.S. at 312 , 105 S.Ct. at 1294-95 . The taped confession should be admitted in the State’s case in chief against the Defendant.

I am authorized to state that Justice O’Brien concurs in this dissenting opinion.