Amicus Brief for the United States — New York v. Quarles

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Ne S3in18 | ALEXANDER L. STEVAS,

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

THE PEOPLE OF THE .

STATE OF NEw YORK, PETITIONER

v.

BENJAMIN QUARLES

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

BRIEF FOR THE UNITED STATES AS ‘

AMICUS CURIAE SUPPORTING PETITIONER <,

REx E. LEE

Solicitor General

STEPHEN §. TROTT

Assistant Attorney General i

ANDREW L. FREY Ae

| Deputy Solicitor General * ee

} 7 DAVID A. STRAUSS a

Assistant to the Solicitor General 1

Department of Justice 5

Washington, D.C. 20530 we

(202) 633-2217 ‘ e

QUESTIONS PRESENTED

1. Whether Miranda warnings must be given before

questioning that is incident to an arrest.

2. Whether nontestimonial evidence derived from an

interrogation that violates Miranda is admissible in a

criminal prosecution.

(1)

TABLE OF CONTENTS

Page

Interest of the United States .0.0000.0......ccccccccccccceeeseeeeeseeees 1

aaa oh ea eabbbncputeindiieaseaibiaeion 1

gS EERTS TOES ae TE cE ES 9 4

III casi sacatatehisistin silt esdeduncartedladeentenititcnabaiediaeediatninae 7

I, Miranda warnings need not be given before ques-

tioning that is incident to an arrest .................... 7

A. A question, asked at the scene of the arrest

and shortly after the arrest, about the loca-

tion of a weapon recently possessed by the

suspect, belongs to a definable category of

questions that are part of the process of com-

IE IIIT sn. on <cieeshinenthipeshiowentibesebhenasnseinencns 9

B. Questioning incident to an arrest does not

create the dangers of coercion with which

Miranda is CONnCErNE ................0..cccc.eseeccereesees 13

II. Nontestimonial evidence derived from respond-

ent’s statement is admissible against him even

if that statement was obtained in violation of

BIIINIIT cscs, cossnceb neobinssdyscnanissonstiastesenssthe icalaetagdbnaicetateah 26

TT EE DLP A CORT Te Hs ea A OO 30

TABLE OF AUTHORITIES

Cases:

Adams V, Williams, 407 U.S. 148 20......0.0..cccccceeeceeee 22

Borodine Vv. Douzanis, 592 F.2d 1202 ....................2 25

Brown V. Illinois, 422 U.S. 590 ............ccceccceeecceeeeeeee 14, 29

Chimel v, California, 395 U.S. 7152 000.......ccccccccceceeeee 10

Counselman V. Hitchcock, 142 U.S. 547 ..00...00000....... 26, 27

Culombe v. Connecticut, 367 U.S. 568 ...................... 29

Dunaway v. New York, 442 U.S. 200 .................... 23, 28-29

Gilbert v. California, 388 U.S. 268 —..00....0......c..000- 26

Government of the Virgin Islands v. Gereau, 502

F.2d 914, cert. denied, 420 U.S. 909 000... 29

Harris v. New York, 401 U.S, 222 .....0...2....-ccccecceeee- 20

(m1)

IV

Cases—Continued: Page

Harryman vy, Estelle, 616 F.2d 870, cert. denied,

PG) Gt SAReavin Walnnga Semis v RADON E LE Col rehdns «- 11

Johnson Vv. New Jersey, 384 U.S. 719 .0......ccccccceeeee 8, 28

Jones V, Cunningham, 871 U.S. 286 ...00.0.000000000. 13

Kastigar v. United States, 406 U.S. 441 ..0.0000000... 29

Leary V. United States, 395 U.S. 6 ..........cc.cccsseseeees 19

BED Te, Gas Te es I mrss cteceeccireectcetstneciersees 21

Mathis v. United States, 391 U.S.1 ......0cccccccccecceees 16

Michigan v. Mosley, 428 U.S. 96 .............c--ccccseesseeees 17

Michigan V. Payne, 412 U.S. 47 ...........cccccesceeseseeeeeees 8

Michigan Vv. Summers, 452 U.S. 692 ............... ite 22, 23

Michigan v. Tucker, 417 U.S, 488 2000......ccc000. 8, 20, 26, 27

Mincey V. Arizona, 487 U.S. 386 ...............c..cccecceeees 27

Miranda V. Arizona, 384 U.S, 486 o0.....ccccccccccccceceeneee passim

Murphy v. Waterfront Commission, 378 U.S. 52.... 27, 28

Oregon V, Mathison, 429 U.S, 492 .0......ccccccecccceececeee 14,17

Orozco ¥. Tewas, 804 U.S. S24 ...........ccceccccccccceccecesceeee 9, 16

Podlaski v, Butterworth, 677 F.2d 8 ooo... 23, 25

Rhode Island v. Innis, 446 U.S, 2911 .............. 5, 9, 11, 14, 17

Rogers Vv. Richmond, 865 U.S. 584 ............cccccccesceee 18

Schmerber Vv. California, 384 U.S. 757 .....cccccccceeeee 26

Schneckloth v. Bustamonte, 412 U.S. 218 2.000.000... 17, 21

Steigler v. Anderson, 496 F.2d 793, cert. denied,

ON A BRA Sa ne OLE eee 11

tgs Ae | Sp earn en ta Cal 22-25

Tot Vv. United States, 8319 U.S. 468 ..............ccccceceees 19

United States v. Barnes, 464 F.2d 828, cert. denied,

I A winiiicitanicilgitn sd duaiaeisdacicanten Seiad doe, 25

United States v. Blum, 614 F.2d 587 0000000000000. 24

United States v. Brignoni-Ponce, 422 U.S. 873........ 23

United States v. Castellana, 500 F.2d 325 ............... 11

United States v. Collom, 614 F.2d 624, cert. denied,

kt a ee ee 24

United States v. Cortez, 449 U.S. 411 000.00... 24

United States v. Del Soccorro Castro, 573 F.2d 213.. 11

United States v. Dionisio, 410 U.S. 1 00... 26

United States v. Glen-Archila, 677 F.2d 809, cert.

denied, No, 82-5178 (Oct. 4, 1982) 0000000000000. 12

United States v. Goodwin, No. 80-2195 (June 18,

ED sidpiliasinisikens detheeessittebiessttesiaaaaianiamiaiaadanindeaaie 2 20

- Cases—Continued: Page

United States v. Grady, 665 F.2d 881 «00000000... 25

United States v. Grant, 549 F.2d 942, cert. denied,

ES SERRE De AEE SNES RNP PROUT nO LE 12

United States v. Hall, 421 F.2d 540, cert. denied,

at a caetblipncueannaneds 11

United States v. Harris, 528 F.2d 914, cert. denied,

I i cinictichincmnsiiinaes 25

United States v. Harris, 611 F.2d 170 ..0000..0.cce 11, 25

United States vy. Hickman, 523 F.2d 323, cert. de-

i a csameceinianncs 28, 24

United States yv. Hinckley, 62 F.2d 115 2000000000000... 12

United States v. Jimenez, 602 F.2d 189.000.0000... 11, 28, 25

United States v. Jones, 543 F.2d 1171, cert. denied,

I a eniiat 24

United States v. Kennedy, 578 F.2d 657 .................. 11

United States v. LaMonica, 472 F.2d 580 0000000000... 12

United States v. Martinez-Fuerte, 428 U.S, 543...... 24

United States v. Menichino, 497 F.2d 985 ................ 12

United States v. Place, No. 81-1617 (June 20,

SDR ENE a eh Os ee 22

United States v. Prewitt, 553 F.2d 1082, cert. de-

nied, 434 U.S, 840 ...... EEA AES OP NE Le LPP 12

United States v. Rice, 652 F.2d 521 «0.0.0.0... 24

United States v. Wade, 388 U.S. 218 ...0.......0..ccceee 26

United States v. Washington, 431 U.S. 181 ............ 17,18

United States ex rel. Hines v. LaVallee, 521 F.2d

1109, cert. denied, 423 U.S. 1090 ..................0000. 12

Vale Vv. Louisiana, 899 U.S. 80 ...................2000.000....-. ll

Constitution and statutes:

United States Constitution:

Fourth Amendment ........................ 5, 12, 14, 22, 25, 28

EE 8, 20, 26

ee 13

I ne 13

Miscellaneous:

H. Friendly, Benchmarks (1967) ..........cccccccccccceseoee 28

Iu the Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-1213

THE PEOPLE OF THE

STATE OF NEW YORK, PETITIONER

Vv.

BENJAMIN QUARLES

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

In our view, the principal question in this case is

whether the requirements of Miranda v. Arizona, 384

U.S. 486 (1966), apply to questioning by law enforce-

ment officers that is incident to the arrest of a suspect.

The resolution of that question is likely to have a signifi-

cant impact on the practices of the agencies responsible

for enforcing federal criminal laws and on federal crimi-

nal law enforcement interests. This case also presents a

question concerning the scope of the exclusionary rule

established by Miranda. Because the resolution of that

question will affect the extent to which probative evidence

can be used to establish guilt in criminal prosecutions, it

is also likely to affect federal criminal law enforcement.

STATEMENT

1. Two police officers on patrol in New York City were

approached by a woman who said she had just been raped.

She described her assailant as a black man six feet tall

(1)

2

who was wearing a short black jacket with the words

“Big Ben” in yellow letters on the back, and she said that

the man had gone into a nearby supermarket. She also

said that the man had a gun. Pet. App. 2a-3a.

One of the officers called for assistance while the other,

Officer Kraft, went to the door of the supermarket. He

saw respondent, who matched the woman’s description,

approaching a checkout counter. Respondent saw Officer

Kraft seconds later and fled toward the back of the store,

with Officer Kraft in pursuit. Officer Kraft lost sight of

respondent for a few seconds but soon located him again,

caught up to him, and ordered him to stop and put his

hands over his head. By this time, other officers were on

the scene and at least four officers surrounded respondent

with their guns drawn. Pet. App. 3a; J.A. 17a.

Officer Kraft frisked respondent and discovered that he

was wearing an empty shoulder holster. The officer then

handcuffed respondent and said to him: ‘Where is the

gun?” Respondent looked toward some cartons nearby

and said: “The gun is over there.” Officer Kraft looked

through the cartons briefly and found a loaded .38 caliber

revolver. Officer Kraft testified that at the time respond-

ent made the statement indicating the location of the gun,

the other officers no longer had their weapons drawn.

Pet. App. 3a; J.A. 18a, 34a-36a.

After securing respondent’s gun, Officer Kraft told re-

spondent he was under arrest and read him the warnings

required by Miranda vy. Arizona, 384 U.S. 486 (1966).

Respondent said that he would be willing to answer ques-

tions without an attorney present. Officer Kraft asked

respondent if he owned the gun, and respondent said that

he did; he asked respondent where he had bought it, and

respondent said “Miami, Florida.” Pet. App. 3a; J.A.

20a-21a.

2. Respondent was indicted for illegal possession of a

weapon. Before trial, he moved to suppress the gun and

all of his statements to Officer Kraft. The trial court,

after holding a hearing, granted the motion. Pet. App.

2a-5a. The court held that the statement identifying the

3

location of the gun had to be suppressed because at the

time respondent made that statement he was “in custody

or arrested within the meaning of Miranda” (id. at 4a)

and was not given the warnings required by that case.

The court then asserted that the gun was to be suppressed

as the fruit of the statement and held that the statements

made after respondent received Miranda warnings were

“tainted by the previous seizure of the weapon and the

statement [made] without the warnings” (id. at 5a).

By a vote of 4-3, the New York Court of Appeals af-

firmed. Pet. App. 6a-l4a.' The Court of Appeals agreed

with the trial court that respondent’s “response to the

police interrogation occurred while he was in custody, be-

fore he had been given the pre-interrogation warnings to

which he was constitutionally entitled” (id. at 7a). The

Court of Appeals also affirmed, without discussion, the

suppression of the gun and respondent’s other statements

as the fruit of respondent’s initial statement. Jbid. The

court asserted that “there is no evidence * * * that there

were exigent circumstances posing a risk to public safety

or that the police interrogation was prompted by any

such concern” and that it therefore would not decide

whether “an emergency exception” to what it saw as the

requirements of Miranda “might be recognized if the pur-

pose of the police inquiry had been to locate and to con-

fiscate the gun for the protection of the public as dis-

tinguished from the[] desire to obtain evidence of criminal

activity on the part of [respondent.]” /bid.

Judge Wachtler dissented. He stated that the officers

had “responded to an emergency situation in an entirely

reasonable manner” (Pet. App. 9a). Judge Wachtler rea-

soned that Miranda and other decisions regulating custo-

dial interrogation are “primarily concerned with discour-

aging official conduct which, examined objectively, reveals

an unmistakably deliberate attempt to elicit some incrim-

inating response from the detainee as opposed to official

1 An intermediate appellate court had affirmed the trial court's

ruling without opinion. See Pet. App. 10a.

4

conduct designed to achieve an articulable and legitimate

non-investigatory purpose.” Jd. at lla. In this case, the

dissenters explained, “(flar from revealing a deliberate

design on the part of the officer to elicit an incriminating

statement from [respondent], the record * * * portrays a

prudent measure undertaken to neutralize the very real

threat of possible physical harm which could result from

a weapon being at large.” Id. at 13a-14a.

Judge Wachtler further stated that “[t]o require a po

lice officer to provide Miranda warnings before asking

about the location of a weapon under the circumstances

of this case would only unnecessarily enhance the poten-

tial for death or severe injury” (Pet. App. 13a). He rea-

soned that “the loaded weapon here could have been passed

to a cohort, an accomplice bent on securing the freedom

of his captured ally, or, worse yet, dropped on the street

outside the supermarket to become the weapon of an in-

nocent child, a mentally unstable adult, or anyone else

who might decide to use it.” Jbid. For these reasons,

Judge Wachtler concluded, “{a]ny result which discour-

ages the police from pursuing this type of precautionary

measure by requiring Miranda warnings beforehand

* * * is contrary to reason” (id. at 14a).

SUMMARY OF ARGUMENT

I. Officer Kraft’s question about the location of the

gun is properly viewed as incident to the arrest of re-

spondent. The process of arresting a suspect—which can

be distinguished, with reasonable clarity, from subsequent

investigative efforts to obtain statements from the sus-

pect for use as evidence against him—is clearly not com-

plete when the suspect is placed under restraint. As the

Court has recognized in cases dealing with searches inci-

dent to arrest, the process of arresting a suspect must

also include, among other things, ensuring that any

weapons to which the suspect might have access cannot

be used to harm the arresting officers or frustrate the

arrest.

5

We submit that Miranda warnings need not be given

before questioning that is incident to an arrest, even if

the questioning could produce an inculpatory response.

See Rhode Island v. Innis, 446 U.S. 291, 301 (1980)

(Miranda warnings need not accompany “words or ac-

tions * * * normally attendant to arrest and custody”).

We recognize that the Miranda rules should be kept rela-

tively clear and easy to apply, but the distinction between

actions incident to arrest and subsequent investigatory

actions is familiar from the Fourth Amendment context,

and it is, if anything, less difficult to apply than other

distinctions law enforcement officers currently use in de-

ciding whether Miranda warnings must be given.

The Court of Appeals apparently believed that Officer

Kraft had to warn respondent because respondent was

“in custody.” It is true that respondent was in custody

in the sense that he had been seized within the meaning

of the Fourth Amendment, but a Fourth Amendment

seizure should not be equated with “custody” as Miranda

uses that term. A Fourth Amendment seizure, while

a necessary condition of requiring Miranda warnings, is

not a sufficient reason to require warnings. Miranda was

concerned with the kind of “custody” that compels sus-

pects to speak, and not every form of custody has that

effect. In particular, questioning incident to an arrest

does not present the dangers of coercion that Miranda

warnings are designed to dispel, because an arrest scene

in the few moments following an arrest does not resem-

ble the “interrogation environment”—in which persistent,

psychologically coercive questioning can compel a suspect

to spcak—for which Miranda warnings are designed.

Specifically, a principal cause of the psychological coer-

cion that concerned the Miranda Court is a suspect’s per-

ception that interrogation will persist indefinitely until

he satisfies his interrogator. Questioning incident to an

arrest conveys no such message to a suspect; such ques-

tioning will necessarily be brief, and it will concern sub-

jects that the arresting officer obviously is seeking to re-

solve quickly for his own safety or because he wishes to

6

complete the arrest successfully. Similarly, Miranda was

concerned with the impact of an environment that the

interrogating officers could manipulate to compel a sus-

pect to speak; arresting officers will seldom have that de-

gree of control over the scene of an arrest. Of course, the

fact of being arrested might itself prompt a suspect to

speak. But the Self-Incrimination Clause bars only com-

pulsion, not every official act that may produce an incrim-

inating admission. Nothing in the Constitution requires

officers to discourage impulsive or improvident statements,

so long as they are made voluntarily.

We recognize that, amid the show of force that often

accompanies an arrest, a suspect will sometimes be co-

erced into speaking. But the Miranda rules are not the

appropriate remedy for such coercion. Miranda warnings

were designed to dispel the coercion that can be gen-

erated by prolonged incommunicado interrogation; they

will not generally be useful in preventing coercion of the

kind that is likely to arise at an arrest scene. That kind

of coercion can be dealt with by the traditional inquiry

into the voluntariness of the statement. Moreover, events

at an arrest scene will be relatively easy to reconstruct;

as the Miranda Court emphasized, a principal reason for

the Miranda exclusionary rule is the difficulty of deter-

mining what occurred during a prolonged and manipula-

tive incommunicado interrogation.

Miranda established a presumption, rebuttable only by

a showing that a suspect waived his rights after proper

warnings, that questioning in certain custodial circum-

stances is coercive. But such a presumption is unreason-

able and unjustified in contexts where there is little dan-

ger of unprovable coercion of the kind identified by Mi-

randa. The costs of applying Miranda to questioning in-

cident to an arrest are substantial: probative statements

that were in fact voluntarily given will be suppressed;

suspects will be discouraged from speaking voluntarily;

and police officers may be forced to choose between

jeopardizing the successful completion of an arrest and

jeopardizing the admission of probative evidence. The

7

slight possible benefits to the values underlying the Self-

Incrimination Clause that might be gained from applying

Miranda to questioning incident to an arrest do not war-

rant incurring these costs.

II. Even if Miranda requires the suppression of re-

spondent’s statement identifying the location of the gun,

it does not follow that the State cannot introduce the gun

itself, assuming it can independently link it to respondent.

The Court has not resolved the question whether non-

testimonial fruits of a Miranda violation may be used as

evidence. By its terms, the Self-Incrimination Clause ap-

plies only to compelled statements, not to nontestimonial

evidence. When nontestimonial evidence is the fruit of

statements that are not shown to have been compelled,

but are excluded only because they were obtained in vio-

lation of the prophylactic rule of Miranda, the possibility

that the nontestimonial evidence derived from a com-

pelled statement is too remote to warrant its exclusion.

Moreover, the specific values that this Court has iden-

tified as the basis of the privilege against self-incrimina-

tion are not served by excluding such evidence.

In addition, evidence that is derived from a Miranda

violation, but would have been discovered by the authori-

ties, even in the absence of a Miranda violation, should

not be excluded. In this case, it seems clear that the gun

would inevitably have been discovered by the officers even

if respondent had not made his statement.

ARGUMENT

L MIRANDA WARNINGS NEED NOT BE GIVEN BE-

FORE QUESTIONING THAT IS INCIDENT TO AN

ARREST

Officer Kraft’s actions were manifestly reasonable;

surely few police officers in his situation would—or should

—have stopped to give Miranda warnings before asking

respondent where the gun was. As the dissenting opinion

in the Court of Appeals pointed out, to do so might have

8

endangered the officers themselves or innocent bystanders.

Nor is there any suggestion that Officer Kraft’s question-

ing was threatening, abusive, or oppressive in any ‘way.

The Court of Appeals nonetheless ordered that the evi-

dence obtained as a result of Officer Kraft’s question be

suppressed. The only constitutional provision underlying

the court’s holding is the Self-Incrimination Clause of the

Fifth Amendment, but the Court of Appeals did not sug-

gest that respondent’s statement was in fact coerced or

compelled in a way that the Self-Incrimination Clause

forbids. That is, the court did not sugrest that the Self-

Incrimination Clause, of its own force, forbade the use of

the statement respondent made in response to Officer

Kraft’s reasonable and legitimate question. Instead, the

court suppressed respondent’s statement because, it be-

lieved, Officer Kraft did not comply with the “prophylactic

standards” established by Miranda (Michigan v. Tucker,

417 U.S. 483, 446 (1974))—standards that are “not

themselves rights protected by the Constitution” (id. at

444) but are intended to safeguard a suspect’s rights un-

der the Self-Incrimination Clause.

It is the nature of the Miranda prophylactic rules that

sometimes, in particular cases, they will require the sup-

pression of statements that are not in fact “compelled”

within the meaning of the Self-Incrimination Clause.

See Michigan v. Tucker, supra, 417 U.S. at 445-447;

Michigan v. Payne, 412 U.S. 47, 58 (1973); Johnson v.

New Jersey, 384 U.S. 719, 730 (1966); Miranda, 384

U.S. at 457. The importance of having a relatively clear

and definite rule, and the difficulty of detecting every in-

stance of compulsion on a case-by-case basis, are thought

to justify such a result. But if the Miranda rules can be

defined in a way that, while not materially diminishing

their clarity or reducing the protection they afford to

constitutional values, also does not produce anomalous re-

sults that damage important societal interests, such a

construction is obviously preferable.

In our view, the Court of Appeals erred in assuming

that Miranda required warnings to accompany all ques-

9

tioning that occurred after respondent was surrounded by

police officers. In Rhode Island vy. Innis, 446 U.S. 291

(1980), the Court took care to specify that Miranda

warnings are not required before the police utter words

or take actions “normally attendant to arrest and cus-

tody” (id. at 301). We submit that questions that are

asked incident to the arrest of a suspect do not constitute

in‘errogation of a kind to which Miranda applies. We

do not suggest, of course, that all questions asked at the

scene of an arrest should be regarded as incident to the

arrest. See Orozco v. Texas, 394 U.S. 324 (1969). Rather,

arresting a suspect is a discrete process, relatively easy

to distinguish from subsequent efforts to gather testi-

monial evidence from the suspect. When questions are

asked as a legitimate part of the process of completing

an arrest, the dangers of coercion with which Miranda

was concerned are ordinarily not likely to be present.

For that reason, such qustions need not be preceded by

Miranda warnings.

A. A Question, Asked at the Scene of the Arrest and

Shortly After the Arrest, About the Location of a

Weapon Recently Possessed by the Suspect, Belongs

to a Definable Category of Questions That Are Part

of the Process of Completing an Arrest

1. The process of arresting a suspect consists of more

than the act of placing him under restraint. While we

readily acknowledge that respondent’s freedom of move-

ment had been restricted when Officer Kraft asked him

the location of the gun, it is equally obvious that the proc-

ess of arresting respondent was not complete at that time.

It would have been wholly unrealistic, indeed dangerous,

for the officers to have conciuded otherwise.

At the very least, the process of arresting a suspect

includes measures designed to place the situation at the

arrest scene under control, and to ensure that safety of

the arresting officers or bystanders will not be threatened

and the suspect will not escape. Specifically, as this Court

has recognized in dealing with searches incident to ar-

10

rest, the process of arresting a suspect necessarily com-

prises steps that are needed “in order to remove any

weapons that the [suspect] might seek to use in order to

resist arrest or effect his escape” because “[o]therwise,

the officer’s safety might well be endangered, and the ar-

rest itself frustrated.” Chimel v. California, 395 U.S.

752, 763 (1969).

For this reason, Officer Kraft’s question was part of

the process of arresting respondent. Officer Kraft had

abundant reason to believe that respondent had recently

disposed of, or hidden, a gun. As Judge Wachtler pointed

out, the gun could have been used to threaten the officers

or to aid in an escape attempt. Asking respondent the

location of the gun was the most obvious and direct way

of ascertaining its location and ensuring that it could not

interfere with the arrest or endanger other persons; it

also achieved those objectives far more quickly, and with

less danger, than any other action that the officers might

have taken—such as attempting to search both respond-

ent’s person and the surrounding area.

Other questions, besides those designed to determine the

location of a weapon, might also be reasonable incidents

of an arrest. For example, if the arresting officers in this

case believed that respondent had an armed accomplice

nearby, a question designed to help find the accomplice

would have been as much a part of successfully complet-

ing the arrest, and controlling the situation, as a question

about the location of a weapon. It is also a reasonable

and necessary part of an arrest to ensure that the right

person has been apprehended, and arresting officers might

ask questions designed to confirm the suspect’s identity

after they have arrested him on probable cause. In addi-

tion, the Court has recognized that securing evidence

from the arrest scene that might otherwise be destroyed

is part of the process of arresting a suspect (see Chimel

v. California, supra, 395 U.S. at 763), and questions de-

11

signed to ascertain the location of such evidence should

be regarded as incident to the arrest.’

In general, questioning incident to an arrest can be

defined by its subject matter as well as by the time and

place at which it occurs. Like a search incident to arrest,

it must be roughly contemporaneous with the arrest. See,

e.g., Vale v. Louisiana, 399 U.S. 30, 33 (1970). In sub-

ject matter, it must be confined to questions reasonably

related to the successful completion of the process of ar-

resting the suspect and placing the arrest scene under

control.

2. It will not diminish the clarity of the Miranda

rules to distinguish between questions asked incident to

an arrest and questions asked as part of a subsequent

investigative process. To begin with, the clarity of the

Miranda rules as they are currently applied should not

be overstated. Miranda warnings are not required unless

a suspect is “in custody” (384 U.S. at 477), and—as more

than one court of appeals has commented—defining ‘“‘cus-

tody” for Miranda purposes has proved to be a difficult

and slippery task. See, e.”., United States v. Harris, 611

F.2d 170, 172 (6th Cir. 1979) ; United States v. Jimenez,

602 F.2d 139, 148 (7th Cir. 1979) ; United States v. Hall,

421 F.2d 540, 541 (2d Cir. 1969), cert. denied, 397 U.S.

990 (1970). There is no clear rule for determining when

a suspect is “in custody”; courts have generally concluded

that that question can be resolved only on a case-by-case

basis by considering a range of circumstances. See, e.g.,

United States v. Harris, supra, 611 F.2d at 172; United

States v. Jimenez, supra, 602 F.2d at 148; United States

v. Kennedy, 573 F.2d 657, 660 (9th Cir. 1978) ; United

States v. Del Soccorro Castro, 573 F.2d 218, 215 (5th Cir.

1978) ; Steigler v. Anderson, 496 F.2d 798, 799-800 (8d

Cir.), cert. denied, 419 U.S. 1002 (1974).

In addition, Miranda applies only when a suspect is in-

terrogated, and the definition of interrogation—‘“any

2 Compare Harryman V. Estelle, 616 F.2d 870, 878-875 (5th Cir.)

(en banc), cert. denied, 449 U.S. 860 (1980), with United States v.

Castellana, 5600 F.2d 325 (5th Cir. 1974) (en banc).

12

words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an in-

criminating response from the suspect” (Rhode Island v.

Innis, supra, 446 U.S. at 301 (footnotes omitted) )—is

capable of varying application. Moreover, as that defini-

tion suggests, and as the courts of appeals have consist-

ently held, custodial questioning need not be preceded by

Miranda warnings if it is routine administrative ques-

tioning,* and disputes can arise over what constitutes

routine administrative questioning.

The distinction between actions taken incident to arrest

and post-arrest investigative actions is, if anything, easier

to apply than these other distinctions that courts and law

enforcement officers already use in deciding when Miranda

warnings are to be given. In the Fourth Amendment

area, law enforcement officers must distinguish between a

search incident to arrest, which can be conducted without

probable cause, and searches that require probable cause

and possibly a warrant. Because of the Fourth Amend-

ment exclusionary rule, a mistaken decision about whether

a search is correctly characterized as incident to arrest

can be fatal to a prosecution. But law enforcement offi-

cers apply the “incident to arrest” criterion routinely and

without inordinate difficulty.

It is reasonable to expect that officers will have no

greater difficulty distinguishing between questioning that

is needed to complete aa arrest and control the arrest

scene, on the one hand, and post-arrest interrogation de-

signed to elicit testimonial evidence from the accused, on

8 See, e.g., United States v. Glen-Archila, 677 F.2d 809, 815 (11th

Cir. 1982), cert. denied, No. 82-5178 (Oct. 4, 1982); United States

V. Prewitt, 553 F.2d 1082, 1086 (7th Cir.), cert. denied, 434 U.S.

840 (1977); United States v. Grant, 549 F.2d 942, 946-947 (4th

Cir.), cert. denied, 482 U.S. 908 (1977) ; United States ex rel. Hines

v. LaVallee, 521 F.2d 1109, 1112-1113 (2d Cir. 1975), cert. denied,

423 U.S. 1090 (1976); United States v. Menichino, 497 F.2d 935,

939-941 (5th Cir. 1974); United States v. LaMonica, 472 F.2d 680

(9th Cir. 1972). See also United States v. Hinckley, 672 F.2d 115,

122-124 (D.C. Cir. 1982).

13

the other. The police skills involved in the two tasks—

arresting a suspect and interrogating him—are signifi-

cantly different. The police are likely to regard the tasks

as quite distinct in the demands they make and the risks

they pose. Notably, in this case, Officer Kraft intuitively

distinguished between questioning incident to the arrest

and the subsequent investigative questioning; he was

careful to give Miranda warnings before he began the

latter kind of questioning.

B. Questioning Incident to an Arrest Does Not Create

the Dangers of Coercion With Which Miranda Is

Concerned

1. a. The Miranda Court stated that warnings must

accompany “questioning initiated by law enforcement offi-

cers after a person has been taken into custody or other-

wise deprived of his freedom of action in any significant

way.” 384 U.S. at 444. But the notion of “custody” has

a different meaning in different contexts, and the fact

that a suspect may be “in custody” for certain purposes

does not necessarily mean that he is “in custody” for

Miranda purposes. Nor is every restraint on a suspect’s

freedom of movement “significant” for Miranda purposes.

Specifically, Miranda warnings should not be required in

situations that, while “custodial” in some sense, do not

present the dangers with which Miranda is concerned.

For example, a parolee is “in custody” for purposes of

the habeas corpus statutes, 28 U.S.C. 2241 and 2254, and

his “freedom of action” is significantly restrained. See

Jones Vv. Cunningham, 871 U.S. 286, 242-248 (1968)

(“{I]n fact, as well as in theory, [parole] * * * involve[s]

significant restraints on [a parolee’s] liberty * * *.

[The] conditions and restrictions [of parole] * * * sig-

nificantly restrain [the parolee’s] liberty * * *. While

petitioner’s parole releases him from immediate physi-

cal imprisonment, it imposes conditions which signifi-

cantly confine and restrain his freedom * * *.”). But the

fact that a suspect is on parole does not entitle him to

Miranda warnings before he is questioned by the police,

14

even if the questioning is conducted at the request of the

police and behind closed doors in a police station. Oregon

v. Mathiason, 429 U.S. 492 (1977).

When Officer Kraft asked respondent the location of the

weapon, respondent undoubtedly was “in custody” in the

sense that he had been “seized” within the meaning of the

Fourth Amendment. But the Fourth Amendment and the

Miranda rules serve substantially different purposes. See

Brown Vv. Illinois, 422 U.S. 590, 600-603 (1975). The

Fourth Amendment defines the circumstances in which

the police may restrain a person’s moversent at all;

Miranda is concerned with the quite different problem of

averting the “compulsion to speak” (384 U.S. at 461)

that, the Miranda Court believed, might be created by

certain forms of restraint. There is, therefore, simply no

reason automatically to equate Fourth Amendment “cus-

tody”—that is, a seizure—with the kind of ‘“‘custody” that

makes Miranda warnings necessary.

b. Miranda was concerned with the kind of custody

that is “inherently compelling” (384 U.S. at 467; see id.

at 458, 465). The compulsion that Miranda warnings are

designed to dispel is caused by the psychological forces,

described in detail in the Court’s opinion in Miranda,

that arise in certain custodial settings. See 384 U.S. at

445 (“An understanding of the nature and setting of this

in-custody interrogation is essential to our decision{]}’’).

As the Miranda opinion makes clear, restraint of the sus-

pect’s liberty is necessary to permit these forces to op-

erate, but it is not sufficient, and these forces do not be-

gin to operate the moment a suspect is arrested. Rather,

these psychological forces, the Court determined, arise in

what the Court repeatedly referred to as an “interroga-

tion environment” or an “interrogation atmosphere.” See,

e.g., 884 U.S. at 457, 468. See also Rhode Island vy. Innis,

supra, 446 U.S. at 299. The Miranda Court’s discussion

of the “nature and setting” of the “interrogation atmos-

phere” shows that questioning incident to an arrest does

not occur in such an environment.

Two elements are crucial to the creation of the atmos-

phere with which Miranda was concerned—the danger

15

that the suspect may perceive that questioning will not

cease until he has satisfied his interrogators; and the iso-

lation of the suspect and pervasive police domination and

control of the surroundings. The suspect’s perception that

interrogation might continue indefinitely played a par-

ticularly large role in the compulsion that concerned the

Miranda Court. Indeed, the Court explained that the

principal reason for the warning of the right to remain

silent is to overcome ‘‘an interrogator’s imprecations,

whether implied or expressly stated, that the interroga-

tion will continue until a confession is obtained” (384

U.S. at 468). The Court described police techniques that

strive to create “‘an oppressive atmosphere of dogged

persistence’’”’ in which the questioner “ ‘interrogate[s]

steadily and without relent, leaving the subject no pros-

pect of surcease * * * [and] no respite from the atmos-

phere of domination.’” 384 U.S. at 451 (citation omit-

ted). Coercion is created, the Miranda Court explained,

when “[pjatience and persistence, at times relentless

questioning, are employed” (id, at 455) because officers

can then use “psychological conditioning” and “deceptive

strategems” (id. at 454, 455) to coerce a suspect into

speaking.

Crucial to the success of these tactics is the ability of

the interrogating officers to manipulate the surroundings

so as to further their efforts to break the suspect’s will.

The coercion that Miranda described arises in an “in-

communicado police-dominated atmosphere” (384 U.S. at

456) that is “cut off from the outside world” (id. at 445;

see id. at 475), “an interrogation environment * * *

created for no purpose other than to subjugate the indi-

vidual to the will of his examiner” (id. at 457).

When questioning is conducted only incident to an ar-

rest, the psychological forces described by the Miranda

opinion have no opportunity to operate. Such questioning

is necessarily brief in duration, because the process of

arresting a suspect seldom takes long to complete. The

suspect will have no reason to believe that the question-

ing wili persist until he incriminates himself, and the

16

police will be unable to take advantage of the psychologi-

cai forces generated by prolonged and relentless question-

ing. Because the subject matter of questioning incident

to arrest is confined to matters that a prudent officer

would want to resolve before he considered the arrest

complete, no suspect is likely to receive the impression

that he is in the presence of a dogged interrogator who

will persist until he receives the answer he is seeking.

In addition, questioning at the arrest scene will be

most unlikely to take place in an environment deliberately

designed and manipulated to coerce the suspect into speak-

ing. Often, as in this case, the arresting officers will have

no control whatever over the place in which they arrest

a suspect. Where they have some control—if, for exam-

ple, they go to a suspect’s home to arrest him—they will

seldom be able to arrange a setting, or create an environ-

ment, that serves their purposes to anything approaching

the degree Miranda envisioned. To the extent the au-

thorities do arrest a suspect in an environment they con-

trol completely, they are likely to be able to complete the

arrest quickly and with little difficulty, thus diminishing

or obviating the need to ask questions incident to the

arrest.

We do not suggest that Miranda is limited to station-

house interrogation and has no application to questioning

at the arrest scene. See Orozco Vv. Texas, supra; Mathis

v. United States, 391 U.S. 1 (1968). The reason Miranda

cannot be so limited is apparent: officers could escape its

dictates by, in effect, recreating the coercive aspects of

the stationhouse environment at the arrest scene. That is

arguably what the officers did in Orozco. But where ar-

resting officers have not attempted to create a coercive

“interrogation environment” at the arrest scene but have

engaged only in brief, reasonable, incident-to-arrest ques-

tioning, the concerns that could justify the Miranda

prophylactic rule are not present.

Of course, forces generated at the time of an arrest

will often induce a suspect to speak to the police. A sus-

pect’s emotional reaction to being arrested may be that

"

he might as well cooperate since he has nothing more to

lose. A person may operate outside the law as long as he

can escape detection but become willing to cooperate when

he is in the presence of the authorities. He may gain

some emotional release from confessing. Or a suspect

may, in the sudden rush of events, speak imprudently be-

cause he has not stopped to calculate the incriminating

effect that his statement will have; that may be the most

plausible explanation of respondent’s statement in this

case.

The Constitution does not, however, require that ad-

missions made for any of these reasons be suppressed.

Nor, of course, does the Constitution require officers to

discourage suspects from making statements for these

reasons. The Self-Incrimination Clause prohibits only

compulsion, not every show of authority or official act that

might induce a person to speak. “The Constitution does

not prohibit every element which influences a criminal

suspect to make incriminating admissions.” United States

v. Washington, 431 U.S. 181, 187 (1977); see Rhode Is-

land v. Innis, supra, 446 U.S. at 303 (absent interroga-

tion, authorities need not give Miranda warnings before

engaging in “subtle compulsion” of a suspect in custody) ;

Oregon Vv. Mathiason, supra, 429 U.S. at 495; Schneckloth

v. Bustamonte, 412 U.S. 218, 224 (1973). No constitu-

tion’’ value is offended by the use of a statement that a

suspect has made imprudenitly, or in order to gain some

emotional release, or because of a vague perception that

he will be treated more leniently if he is cooperative (see

Michigan v. Mosley, 423 U.S. 96, 102 (1975) ).*

2. a. We recognize that, beyond inducing a suspect to

speak voluntarily, an arrest might sometimes be con-

ducted in a way that gives rise to the kind of coercion

4 Moreover, there is no requirement that the police give Miranda

warnings in order to dispel any compulsion that might result from

an arrest itself. See Rhode Island v. Innis, supra, 446 U.S. at 300.

The authorities are free to arrest a suspect and permit the pressure

generated by the arrest to cause him to volunteer a statement. /bid.,

quoting Miranda, 384 U.S. at 478.

18

that the Self-Incrimination Clause does forbid. The rem-

edy for such potential coercion, however, is not to require

Miranda warnings but to permit the suspect to attempt

to show that his statement was involuntary in the tra-

ditional sense. See, e.g., United States v. Washington,

supra, 431 U.S. at 188, citing Rogers v. Richmond, 365

U.S. 534, 544 (1961) (“whether, considering the totality

of circumstances, the free will of the [speaker] was

overborne”). Miranda warnings are likely to be ineffec-

tive in preventing the kind of coercion that can arise at

an arrest scene, and the Miranda exclusionary rule is

not needed to avoid the difficulty of proving, in individ-

ual cases, that particular statements were the product

of coercion.

A suspect might be coerced into speaking at the arrest

scene, for example, if the arresting officers decide actually

to threaten him with physical harm in order to compel him

to speak. But Miranda warnings are likely to be useless

to prevent this kind of coercion. If the officers who ar-

rested respondent were determined to threaten him with

physical harm in order to find out where the gun was,

they could easily have recited Miranda warnings before

making their threat; if respondent believed he was so

threatened, he would scarcely have been remssured by

those warnings, because he would correctly perceive that

they were given only for the sake of appearances. His

remedy would be to show that his statement was in fact

coerced.

Moreover, when a suspect claims that arresting officers

coerced him into answering questions that were asked

incident to the arrest, a court should be perfectly able to

determine—by traditional means and without indulging

any empirically dubious presumptions—whether the in-

criminating answer was in fact compelled. Miranda em-

phasized that custodial interrogation of the kind with

which it was concerned took place in private, shrouded

with secrecy that made it very difficult for a court sub-

sequently to reconstruct the events that occurred and the

19

psychological pressures they generated. See, e.g., 384

U.S. at 445. By contrast, an arrest will, as we noted,

generally occur either in public or in an environment

familiar to the suspect. There is a reasonable likelihood

that neutral witnesses, or witnesses favorable to the sus-

pect, will be present. The encounter during which ques-

tioning can be regarded as incident to arrest will, as we

explained, be brief and, compared with a lengthy, com-

plex, and manipulative course of stationhouse interroga-

tion, easy to reconstruct.

Miranda warnings, in short, are not an all-purpose

prophylaxis for every form of police coercion; they are

designed for persistent interrogation in a police-dominated

“interrogation environment.”’ They are not likely to be

effective in preventing the relatively crude forms of coer-

cion that are the principal danger at an arrest scene in

the moments after a suspect is apprehended. Nor are the

Miranda rules needed to detect such coercion.

b. In any event, the question is not whether Miranda

warnings will ever be effective, or could possibly be effec-

tive, in preventing a suspect from being coerced into an-

swering a question asked incident to an arrest. The op-

erative principle of Miranda is that questioning in a cer-

tain environment is presumed to be coercive; the pre-

sumption can be overcome only if the government shows

that the suspect has waived his rights after proper warn-

ings. See, e.g., 384 U.S. at 468-469, 474-476. In an in-

communicado environment, dominated by officers who can

conduct an interrogation of indefinite duration, this pre-

sumption is plausible. But as the Court has recognized,

presumptions should not be extended beyond the context

in which their empirical premises hold true. See, e¢.g.,

Leary Vv. United States, 395 U.S. 6, 33-36 (1969) ; Tot v.

United States, 319 U.S. 463, 467-468 (1943). “Given the

severity of |the Miranda) presumption * * * —which

may operate in the absence of any proof of [coercion]

and thus may block a legitimate response to criminal con-

duct,” that presumption should be indulged “only in cases

20

in which a reasonable likelihood of [coercion] exists”

(United States v. Goodwin, No. 80-2195 (June 18, 1982),

slip op. 4)). A brief questioning at the arrest scene,

limited to matters reasonably incident to the arrest, does

not present a sufficient likelihood of the kind of coercion

with which Miranda was concerned to justify the use of

a presumption that a statement has been coerced.

Moreover, the Miranda rules, as we noted earlier, are

prophylactic standards that are not themselves mandated

by the Constitution. Since the Constitution itself does not

require the use of these standards, their justification must

rest on the judgment that their benefits—the gains to

constitutional values that result from the use of the stand-

ards—outweigh the costs. See Michigan v. Tucker, supra,

417 U.S. at 450-451; Harris v. New York, 401 U.S. 222,

224-225 (1971).

The costs of applying Miranda to questioning incident

to an arrest are substantial. Perhaps the most obvious

cost is that if the arresting officers fail to give the proper

warnings, highly probative evidence may be suppressed

even though it is not, in fact, compelled testimony the use

of which would violate the Fifth Amendment. That is

what seems to have happened here.

In addition, many suspects are, as we noted, willing to

make statements for emotional or psychological reasons

other than coercion, and the Constitution does not forbid

the use of such statements. However effective Miranda

warnings are in dispelling coercive influences, they will

undoubtedly also discourage many such suspects from

speaking voluntarily—thus damaging society’s interest in

effective law enforcement without any concomitant gain

to constitutional values.

Requiring Miranda warnings to accompany questioning

incident to an arrest will sometimes have the additional

cost of placing officers who are making an arrest in a

difficult dilemma. In this case, for example, if Officer

Kraft had advised respondent of his right to remain si-

lent, respondent might have refused to disclose the loca-

21

tion of the gun; or, at least, so Officer Kraft might have

concluded in the moments before he asked the question.

Thus, if the approach of the court below prevails, arrest-

ing officers will sometimes be forced to choose between

rendering evidence inadmissible and taking the risk that,

by giving Miranda warnings, they will interfere with

their own ability to complete an arrest quickly and

safely. To place an officer in the position of having to

make this choice, at a volatile and potentially dangerous

arrest scene, is itself a considerable cost.

If these costs were offset by substantial benefits to the

values protected by the Self-Incrimination Clause, they

might be worth incurring. But as we have explained, the

likelihood is small that questioning incident to an arrest

will actually produce coercion of the kind that Miranda

warnings are effective in dispelling. Nor does it com-

promise the clarity of the Miranda rules to treat ques-

tioning incident to an arrest differently from other forms

of questioning. There is, accordingly, no justification for

extending Miranda to questions asked incident to an

arrest.

Miranda can be seen as a response to a situation, per-

ceived by the Court, in which police officers routinely

short-circuited the elaborate protections that are afforded

to the privilege against self-incrimination at trial; they

did so by conducting a prior, incommunicado “proceed-

ing,” featuring none of the safeguards associated with a

trial, in which the accused would be coerced into giving

testimonial evidence against himself. See, e.g., 384 U.S.

at 466, quoting Mapp v. Ohio, 367 U.S. 648, 685 (1961)

(Harlan, J., dissenting) ; Schneckloth v. Bustamonte, 412

U.S. 218, 240 (1973). The Miranda Court sought to con-

trol this extra-judicial proceeding—-‘the secret interroga-

tion process” (384 U.S. at 470)—in order to protect the

privilege against self-incrimination. See id. at 481.

Questioning like Officer Kraft’s, conducted incident to

an arrest, is in no sense part of such an incommunicado

“proceeding” designed to elicit involuntary testimony. It

is not part of an “interrogation process” at all; it is part

22

of the quite different process of effecting an arrest. The

Miranda rules were simply not intended to be applied to

that process. The extraordinary result reached by the

Court of Appeals in this case—a result linked so tenuously

to the privilege against compelled self-incrimination—ex-

cellently illustrates this point.

8. As we have shown, the Court of Appeals’ holding

is the product of an excessively rigid and formalistic ap-

plication of Miranda to questioning conducted incident to

an arrest. But the mischievous consequences of such an

approach may not be confined to post-arrest questioning.

If the Court of Appeals’ facile equation of Fourth Amend-

ment seizures with Miranda custody is correct, it will

logically be difficult to escape the further conclusion that

questioning during an investigative stop based on reason-

able suspicion (see Terry v. Ohio, 392 U.S. 1 (1968) )

must also be preceded by Miranda warnings. A Terry

stop, like an arrest, is a seizure within the meaning of the

Fourth Amendment. See 392 U.S. at 16. An officer sub-

jecting a person to a Terry stop undoubtedly “deprive[s

the suspect] of his freedom of action” (Miranda, 384 U.S.

at 444) ; indeed, he may do so by force. United States v.

Place, No. 81-1617 (June 20, 1983), slip op. 6. In fact,

from the point of view of the suspect, a Terry stop may

often be indistinguishable from the initial stages of an

arrest.

Yet to require Miranda warnings before the question-

ing that accompanies a lawful Terry stop would, we sub-

mit, be manifestly inappropriate. The usual purpose of a

Terry stop is precisely to obtain information from the

suspicious individual. See Adams v. Williams, 407 U.S.

148, 146 (1972); Michigan v. Summers, 452 U.S. 692,

700 n.12 (1981). If the officer must begin his interview

with the suspect by giving him warnings calculated to

discourage him from speaking, the principal purpose of

the stop will be defeated.’ Moreover, because of the “brief

5 As the Seventh Circuit has noted, requiring Miranda warnings

at an investigative stop “would contravene the very purpose of the

investigatory Terry-type stop which is to ‘allow the officer to con-

23

and narrowly circumscribed” nature of the questioning

that accompanies a Terry stop (Dunaway v. New York,

442 U.S. 200, 212 (1979)) such a stop “is not likely to

have coercive aspects likely to induce self-incrimination”

(Michigan v. Summers, supra, 452 U.S. at 702 n.15).

This is true for precisely the same reason that question-

ing incident to an arrest is unlikely to produce such

coercion.®

This Court has not had occasion to decide whether

Miranda warnings must precede questioning during a

Terry stop, but its opinions clearly have not envisioned

that warnings would be given in such circumstances. For

example, in United States v. Brignoni-Ponce, 422 U.S.

873, 881-882 (1975), the Court stated: “[WlJe hold that

when an officer’s observations lead him reasonably to sus-

pect that a particular vehicle may contain aliens who are

illegally in the country, he may stop the car briefly and in-

vestigate the circumstances that provoke suspicion. * * *

The officer may question the driver and passengers about

their citizenship and immigration status, and he may ask

them to explain suspicious circumstances * * *.” Plainly

the Court did not contemplate that, in every case, such

firm or deny [his] suspicions by reasonable questioning, rather than

forcing in each instance the “all or nothing” choice between arrest

and inaction.’” United States v. Jimenez, supra, 602 F.2d at 148,

quoting United States v. Hickman, 523 F.2d 823, 327 (9th Cir.

1975), cert. denied, 423 U.S. 1050 (1976). See also Podlaski v.

Butterworth, 677 F.2d 8, 10 (1st Cir. 1982): “One of the primary

purposes of preliminary questioning is to separate a group of per-

sons possibly involved in a crime into those who should and those

who should not be arrested—to decide whether all, some, or none

should be charged. To turn all such questioning into custodial inter-

rogation, requiring Miranda warnings in all cases * * * could * * *

seriously interfere with the process of information gathering and on

occasion force the police to cast their net of arrest too wide, sig-

nificantly interfering with the liberty of the innocent.”

The Miranda opinion itself recognized the distinction between

the incommunicado stationhouse questioning with which it was

principally concerned and “[gjeneral on-the-scene questioning as

to facts surrounding a crime” (384 U.S. at 477).

24

questioning would have to be preceded by Miranda warn-

ings. Similarly, in United States v. Cortez, 449 U.S. 411

(1981), officers stopped a vehicle on reasonable suspicion

for the “purpose [of] * * * question[ing] the occupants

of the vehicle about their citizenship and immigration

status and the reasons for’ their suspicious activity. Id.

at 421. While the validity of the questioning was not at

issue in Cortez, the Court surely would have rejected any

contention that evidence discovered as a result of the

questioning was inadmissible because the questioning was

not accompanied by Miranda warnings. In United States

v. Martinez-Fuerte, 428 U.S. 548 (1976), the Court held

that Border Patrol agents may, without particularized

suspicion, seize persons briefly at fixed checkpoints and

inquire about their “citizenship and immigration status”

(id. at 546). Again, it seems clear that the Court did not

envision that such an inquiry would have to be preceded

by Miranda warnings.

The courts of appeals have struggled to reconcile the

apparent requirement that Miranda warnings be given

whenever a suspect is in custody with their shared sense

that warnings are inappropriate when the “custody”

takes the form of a Terry stop. Some courts have simply

held that Miranda warnings are not required before ques-

tioning that occurs during a lawful Terry stop. See, e.g.,

United States v. Collom, 614 F.2d 624, 628 (9th Cir.

1979), cert. denied, 446 U.S. 923 (1980); United States

v. Jones, 543 F.2d 1171, 1173 (5th Cir. 1976), cert. de

nied, 430 U.S. 957 (1977) (questioning about suspect’s

destination permitted during a Terry stop of his car) ;

United States v. Hickman, 523 F.2d 328, 326-327 (9th

Cir. 1975), cert. denied, 423 U.S. 1050 (1976). See also

United States v. Rice, 652 F.2d 521, 527 (5th Cir. 1981) ;

United States v. Blum, 614 F.2d 537, 540 (6th Cir.

1980).

Other courts dealing with situations that resemble

Terry stops appear to have analyzed the question whether

Miranda warnings were required by deciding whether all

the circumstances taken together created a coercive situa-

25

tion. See, e.g., Podlaski v. Butterworth, 677 F.2d 8, 10

(1st Cir. 1982) ; United States v. Grady, 665 F.2d 8381,

833-834 (8th Cir. 1981) (suspect was not “in the type of

custodial surroundings which concerned the Miranda

court’) ; United States v. Harris, supra, 611 F.2d at 172-

173; United States v. Jimenez, supra, 602 F.2d at 144 &

n.5, 146 (“The extent to which Miranda applies to street

encounters or car stops depends on whether these encoun-

ters reflect the type of inherently coercive tactics that

may often attend a station-house interrogation”) ; United

States v. Harv 's, 528 F.2d 914 (4th Cir. 1975), cert.

denied, 423 U.S. 1075 (1976). See also Borodine v.

Douzanis, 592 F.2d 1202, 1205-1208 (1st Cir. 1979);

United States v. Barnes, 464 F.2d 828, 829-830 (D.C.

Cir. 1972), cert. denied, 410 U.S. 986 (1973).

These decisions of the courts of appeals are important

for two reasons. First, they demonstrate the prevalance

of the view that it would be inappropriate to require that

Miranda warnings must precede brief, on-the-scene ques-

tioning, even if the suspect is “in custody” in the sense

that he is not free to leave. As we noted, this Court’s

opinions dealing with investigative stops appear to reflect

the same implicit assumption. And for the reasons we

have given, questioning during a Terry stop and ques-

tioning incident to an arrest are generally indistinguish-

able insofar as their potential to create coercion is con-

cerned; even the suspect will often be unabie to distin-

guish between them.

Second, in order to avoid the incongruous result of re-

quiring Miranda warnings during brief, on-the-scene

questioning merely because the suspect was under re-

straint, the courts of appeals have frequently resorted to

ad hoe balancing based on the facts of particular cases.

The Miranda rules would be made more, not less, clear

by explicitly recognizing that not every Fourth Amend-

ment “seizure” creates “custody” for Miranda purposes,

and specifically that questioning incident to an arrest or

during a Terry stop need not be preceded by warnings.

26

Il NONTESTIMONIAL EVIDENCE DERIVED FROM

RESPONDENT’S STATEMENT IS ADMISSIBLE

AGAINST HIM EVEN IF THAT STATEMENT WAS

OBTAINED IN VIOLATION OF MIRANDA

If, contrary to our submission, Officer Kraft was re-

quired to give respondent Miranda warnings before ask-

ing the location of the gun, respondent’s answer cannot

be used as evidence against him. But the Court of Ap-

peals also assumed, without discussion, that the gun

would itself also have to be suppressed, so that it could

not be used as evidence even if the State independently

linked it to respondent. That conclusion by no means fol-

lows.

A. As this Court has noted, the question whether non-

testimonial fruits of a Miranda violation can be used as

evidence against an accused has not been resolved. See

Michigan v. Tucker, supra, 417 U.S. at 446. We ad-

dressed this question at length in the Brief for the United

States as Amicus Curiae in Michigan v. Tucker (No. 73-

482),7 and we merely summarize here the argument we

made in that brief.

1. The Fifth Amendment does not prohibit the gov-

ernment from compelling an accused to give evidence

against himself; it prohibits only compelled testimony.

It is well established that the government may require

an accused to take actions that will create nontestimonial

evidence that can be used against him. See, e.g., United

States v. Dionisio, 410 U.S. 1, 5-7 (1978); Gilbert v.

California, 388 U.S. 268, 266-267 (1967) ; United States

v. Wade, 388 U.S. 218, 222-223 (1967); Schmerber v.

California, 384 U.S. 757, 760-765 (1966). It is, of course,

clear that the gun in this case is nontestimonial evidence.

We do not dispute, however, that if the gun were dis-

covered as the result of what is shown to have been in

fact a compelled statement by respondent, it could not be

used as evidence against him. Counselman v. Hitchcock,

142 U.S. 547 (1892), held that the privilege against self-

incrimination prohibits the use not only of compelled

7 Copies of that brief have been sent to the parties.

27

statements but of evidence derived from compelled state-

ments.* Counselman involved a statement compelled by

the threat of punishment for contempt, but we would

agree that nontestimonial evidence derived from a state-

ment that has been compelled by police interrogation

practices that overbear the will of a suspect (see, ¢.g.,

Mincey v. Arizona, 437 U.S. 385, 396-402 (1978) ) should

also not be admitted into evidence. See Michigan v.

Tucker, supra, 417 U.S. at 461 (White, J., concurring).

But the Court of Appeals did not suggest that respond-

ent’s statement was compelled either by threat of punish-

ment for contempt or by abusive police practices. The

gun is nontestimonial evidence derived not from a state-

ment shown to be compelled but from a statement ob-

tained (we assume arguendo) in violation of the pro-

phylactic rules of Miranda—rules that preclude the use

of many statements that are not themselves in fact com-

pelled. When nontestimonial evidence is directly linked

to compelled statements, it is plausible to say that the

values underlying the Self-Incrimination Clause would be

offended by the use of the nontestimonial evidence; but

here, the nexus is between the nontestimonial evidence

and testimony not shown to be compelled but merely in-

duced in circumstances giving rise to the possibility that

unprovable compulsion may have occurred. For this rea-

son, the gun resembles nontestimonial evidence obtained

from a suspect without compelling a statement, and the

values underlying the Self-Incrimination Clause do not

require its suppression, any more than they would require

the suppression of other such nontestimonial evidence.

2. In Murphy v. Waterfront Commission, 378 U.S. 52

* As we noted in our brief in Michigan v. Tucker (at 23-30),

the Counselman opinion is vulnerable to criticism. An addi-

tional reason not to exclude nontestimonial fruits of a Miranda

pelled by threat of punishment for convempt—in the absence of a

strong showing ths+ such an extension is needed to further the

purposes of the Self-Incrimination Clause.

28

(1964), the Court explained the values underlying the

Self-Incrimination Clause in specific terms; this explana-

tion further suggests that the admission of the gun in

this case would not be inconsistent with those values.

For example, the Court referred to the “distrust of self-

deprecatory statements” and suggested that there is never

sufficient assurance that a compelled confession is truth-

ful. Id. at 55. See also Miranda, 384 U.S. at 455 n.24,

470; H. Friendly, Benchmarks 282 (1967) (“the truly

dreadful risk of the false confession’). In holding that

Miranda does not apply retroactively, the Court has

stated that voluntary statements obtained in violation of

Miranda do not present the same danger of an unreliable

or false confession. Johnson Vv, New Jersey, supra, 384

U.S. at 730. More important, however, when only non-

testimonial fruits of a statement are admitted in evidence

—and must be independently linked to the accused—there

is simply no danger that a person will be convicted on the

basis of an unreliable or false confession.

Similarly, the Court noted in Murphy that the privilege

against self-incrimination “reflects * * * our unwilling-

ness to subject those suspected of crime to the cruel

trilemma of self-accusation, perjury or contempt” (878

U.S. at £5). A suspect who is informally questioned by

the police (unlike, for example, a grand jury witness)

does not face this trilemma; he may remain silent without

penalty, and even a false statement probably would not

subject him to punishment. Finally, the Court in Murphy

stressed the extent to which authorities armed with in-

quisitorial powers can violate citizens’ privacy with their

demands for self-accusation. See ibid. But in the context

governed by the Miranda exclusionary rule—custodial in-

terrogation—other constitutional provisions protect these

privacy values, Specifically, under the Fourth Amend-

ment, the authorities cannot subject any person to custo-

dial interrogation unless they have probable cause to sus-

pect him of a crime, The Fourth Amendment exclusion-

ary rule enforces that prohibition. See Dunaway v. New

29

York, supra; Brown v. Illinois, supra. It is therefore

unnecessary to extend the Miranda exclusionary rule to

probative, reliable, nontestimonial evidence not directly

linked to any actually compelled statement.

B. Even ii nontestimonial evidence derived through ex-

ploitation of a Miranda violation ordinarily must be sup-

pressed, an “inevitable discovery” rule should be applied

to such evidence. That is, evidence that the authorities

would have uncovered in any event, even if they had not

obtained statements in violation of Miranda, should not

be excluded. See Government of the Virgin Islands v.

Gereau, 502 F.2d 914, 927-928 (8d Cir. 1974), cert. de-

nied, 420 U.S. 909 (1975). We have discussed the “in-

evitable discovery” doctrine at length in the Brief for the

United States as Amicus Curiae in Nix v, Williams, cert.

granted, No, 82-1651 (May 31, 1983),® and no purpose

would be served by repeating that discussion here.

This Court has held that the privilege against self-

incrimination is fully protected when the government

shows an independent source for evidence it could also

have derived from a compelled statement. Kastigar v.

United States, 406 U.S. 441, 459-462 (1972). As we ex-

plain in our brief in Nix, the “inevitable discovery” ex-

ception to the exclusionary rule is logically related to, and

follows directly from, the “independent source” exception.

When the government shows that it would have obtained

evidence even if the accused had not spoken, there is no

sense in which the accused is being made “ ‘the deluded

instrument of his own conviction,’”’ Culombe v. Connec-

ticut, 867 U.S. 568, 581 (1961) (opinion of Frankfurter,

J.) (citation omitted). Moreover, Kastigar applied the

“independent source” rule to statements that had been

compelled in the clearest sense—by the threat of punish-

ment for contempt. As we have said above, statements

obtained in violation of Miranda cannot be equated to

statements obtained through such compulsion. We also

explained in our brief in Niw why the “inevitable dis-

® We have sent copies of this brief to the parties.

30

covery” rule does not weaken the deterrent effect of an

exclusionary rule.'”

CONCLUSION

The judgment of the Court of Appeals of New York

should be reversed.

Respectfully submitted.

REx E, LEE

Solicitor General

STEPHEN S, TROTT

Assistant Attorney General

ANDREW L, FREY

Deputy Solicitor General

DAVID A, STRAUSS

Assistant to the Solicitor General

AUGUST 1983

© Although the jower courta made no findings of fact on the sub-

ject, this seems clearly to be an appropriate case in which to apply

the “inevitable discovery” rule. Had respondent not spoken, the

officers undoubtedly would have searched for the gun. The gun was

apparently quite near the scene of the arrest, presumably having

been hidden during the few seconds when respondent eluded Officr

Kraft, and there is no indication that the gun was particularly well

concealed in the cartons. It is thus virtually inconceivable that the

gun would not have been found, and it seems quite unreasonable to

confer on respondent the windfall of suppressing the gun simply

because of the essentially immaterial mistake of the officer in asking

& spontaneous question about its location,

0. 8. COveRNMENT PHueTiNG OFriee, 1009 aiaece) = be

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