Opposition Brief — Dickerson v. United States

fb, ORIGINAL) | FF

7, NOV 2 WOO

IN THE SUPREME COURT OF THE UNITED STATES

CHARLES THOMAS DICKERSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

JANET RENO

Attorney General

SETH P. WAXMAN

Counsel of Record

JAMES K. ROBINSON

MICHAEL R. DREEBEN

Deputy Solicitor General

JAMES A. FELDMAN

LISA S. BLATT

Washington, D.C. 20530-0001

; 41202) 514-2217

4 pP

QUESTIONS PRESENTED

1. Whether a voluntary confession may be admitted into

evidence in the government's case-in-chief under 18 U.S.C. 3501,

notwithstanding that the confession was taken in violation of the

requirements of Miranda v. Arizona, 384 U.S. 436 (1966).

2. Whether 18 U.S.C. 3501 was properly considered by the

court of appeals when the government had not raised the statute on

appeal.

3. Whether the search warrant in this case described the

evidence to be seized with sufficient particularity or, if not,

whether the agents nonetheless relied in good faith on the warrant,

when the warrant authorized a search for "evidence of the crime of

bank robbery."

(I)

IN THE SUPREME COURT OF THE UNITED STATES

No. 99-5525

CHARLES THOMAS DICKERSON, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

STATEMENT

A grand jury sitting in the Eastern District of Virginia

indicted petitioner on one count of conspiracy to commit bank

robbery, in violation of 18 U.S.C. 371, three counts of bank

robbery, in violation of 18 U.S.C. 2113(a) and (d), and three

counts of using a firearm during and in relation to a crime of

violence, in violation of 18 U.S.C. 924(c). The district court

granted petitioner's motion to suppress statements petitioner made

to federal agents and physical evidence seized during the execution

of a search warrant at his apartment. Pet. App. 1b-20b. The

district court denied the government's motion for reconsideration.

Id. at 1lc-7c. The government appealed, and the court of appeals

reversed. Id. at la-28a.

a. On January 24, 1997, the First Virginia Bank in

2

Alexandria, Virginia, was robbed of approximately $876. The robber

carried a silver semi-automatic handgun and a black leather bag.

Immediately after the robbery, a witness saw the robber place

something into the trunk of a white Oldsmobile Ciera, get into the

passenger side of the car, and ride away. The witness observed the

getaway car's license plate number, and law enforcement agents

determined that the car was registered to petitioner. C.A. App.

13-14, 73, 80-81.

On January 27, 1997, at around 5:30 p.m., a team including

agents of the Federal Bureau of Investigation (FBI) and an

Alexandria police detective went to petitioner's apartment in

Takoma Park, Maryland. Several agents entered the apartment.’

While the agents were there, FBI Special Agent Lawlor saw a large

amount of cash (later determined to be $552) on petitioner's bed.

Petitioner refused to allow the agents to search his apartment.

Petitioner then accompanied the agents to the FBI field office in

Washington, D.C. C.A. App. 14-15, 81-85, 94-96.

Agent Lawlor and Alexandria Detective Durkin interviewed

petitioner at the FBI field office in Washington, D.C. Agent

Lawlor testified that petitioner initially stated only that he had

driven his white Oldsmobile Ciera to the Old Town area of

Alexandria at about 10 a.m. to look at a restaurant. Petitioner

* At the suppression hearing, the testimony of Special Agent

Christopher Lawlor and that of petitioner diverged on several

issues. See C.A. App. 81. For example, Agent Lawlor testified

that the entry was by consent after he knocked on the door, C.A.

App. 5, while petitioner testified that the agents entered without

being invited in. C.A. App. 44.

3

also said that he parked his car and went to get a bagel. Agent

Lawlor added that the area in which petitioner was parked was near

the scene of the bank robbery. C.A. App. 22, 73. Agent Lawlor

testified that he then left the room and obtained by telephone a

warrant to search petitioner's apartment for "[e)vidence of the

crime of bank robbery." C.A. App. 22, 68-71. Lawlor testified

that he returned to the interview room and told petitioner that

other agents were about to search his apartment. Lawlor further

testified that petitioner was then advised of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), and waived those rights in

writing. C.A. App. 25-27, 72.

According to Lawlor, after the waiver, petitioner admitted

that he had been with Jimmy Rochester on the morning of the

robbery, and that Rochester had previously committed numerous

robberies and might have robbed the First Virginia Bank.

Petitioner stated that both he and Rochester left petitioner's car

to go separate places, and that when he returned, Rochester was

already in the car and the two drove away. He also stated that he

stopped the car at Rochester's request, and Rochester put something

in the trunk. Later, Rochester told him to run a red light, and

petitioner began to surmise that Rochester may have robbed a bank.

Petitioner also said that later that day Rochester gave him a

silver .45-caliber pistol, and that the agents might find the gun

and dye-stained money in petitioner's apartment. C.A. App. 27, 73-

76. #Officers subsequently searched petitioner's apartment and

found a .45-caliber handgun, dye-stained money and a bait bill from

4

another robbery or robberies, ammunition, and masks. C.A. App. 39-

41, 85.

2. Petitioner moved to suppress his statements and the

evidence seized from his apartment. The district court held a

hearing at which Agent Lawlor and petitioner both testified.

Petitioner testified that, contrary to Agent Lawlor's testimony, he

was not advised of his Miranda rights until after he made all of

the statements at issue. Following the hearing, the district court

granted petitioner's suppression motions. Pet. App. 1b-20b.* With

respect to the statements, the district court found that petitioner

was in custody during the questioning, and it credited petitioner's

testimony that he was not read his Miranda rights and did not

execute a waiver until after he made all of the statements at

issue. Id. at 15b-20b. The court also suppressed the evidence

seized from petitioner's apartment, ruling that the warrant, which

authorized a search for “evidence of the crime of bank robbery,”

was insufficiently particular and could not have been relied on in

good faith by the agents executing it. Id. at 8b-15b.

3. The government filed a motion for reconsideration. In

support of its motion, the government submitted the affidavit of

Detective Durkin, who was present throughout petitioner's

interview. In his affidavit, Detective Durkin stated that

petitioner had been read Miranda warnings and executed the written

4

* Petitioner also moved to suppress a leather backpack and

solvent used to clean dye-stained money, which were recovered from

a search of the getaway car. The district court denied that

motion. Pet. App. 7b-8b & n.2.

5

waiver before petitioner gave his more elaborate statement

acknowledging his activities with Rochester on the day of the

robbery. The government further submitted petitioner's own .

handwritten statement acknowledging that he had been advised of his

rights. C.A. App. 119-122. fhe government also argued (jd. at 110-

112) that even if petitioner's svnteneste were elicited in

violation of Miranda, they were voluntary and therefore admissible

under 18 U.S.C. 3501, which provides in relevant part that "[iJn

any criminal prosecution brought by the United States or by the

District of Columbia, a confession * * * shall be admissible in

evidence if it is voluntarily given," 18 U.S.C. 3501(a), that

“(t]he trial judge in determining the issue of voluntariness shall

take into consideration all the circumstances surrounding the

giving of the confession," and that the "presence or absence" of

any particular factors "need not be conclusive on the issue of

voluntariness of the confession," 18 U.S.C. 3501(b).

The district court denied the motion for reconsideration on

the ground that the government had failed to establish that the

additional evidence it proffered had been unavailable at the time

of the suppression hearing. Pet. App. 5c. The district court's

written order did not address Section 3501. See jd. at ic-7c.

4. <A divided panel of the court of appeals reversed. Pet.

App. la-28a.

a. With respect to petitioner's statements, the court first

held that the district court did not abuse its discretion in

denying the government's motion for reconsideration, because the

6

government had earlier opportunities to offer the evidence. Pet.

App. 7a-8a. The court then turned to Section 3501. Although the

majority noted that the government explicitly declined to make any

argument based on 18 U.S.C. 3501 on appeal, Gov't C.A. Br. 34 n.19,

the court held that petitioner's statements were admissible under

Section 3501 notwithstanding the absence of prior Miranda warnings.

Pet. App. 8a-19a.

The majority stated that "[Section) 3501, rather than the

judicially created rule of Miranda," governs the admissibility of

confessions in federal court. Pet. App. 17a. The majority noted

that Congress had enacted Section 3501 "with the express purpose of

legislatively overruling Miranda,” id. at 12a, and that Congress

had the authority to do so only if the rules set forth in Miranda

were not required by the Constitution. Jd. at 13a. Relying on

cases decided after Miranda in which this Court "referred to the

warnings as 'prophylactic,' and 'not themselves rights protected by

the Constitution,'" id. at lé4a (citations omitted), the court of

appeals held:

As a consequence, the irrebuttable presumption created by the

Court in Miranda — that a confession obtained without the

warnings is presumed involuntary — is a fortiori not required

by the Constitution.

Accordingly, Congress necessarily possesses the

legislative authority to supersede the conclusive presumption

created by Miranda pursuant to its authority to prescribe the

rules of procedure and evidence in the federal courts.

ig. at 16a (footnote omitted). The majority noted the dissent's

contention that, under the majority's theory, it remained

unexplained how this Court could continue to apply Miranda to state

7

prosecutions if Miranda is not a constitutional rule. But the

majority found that to be an "interesting academic question" that

"has no bearing on our conclusion that Miranda's conclusive

presumption is not required by the Constitution.” Id. at 24a n.21.

The court of appeals therefore reversed the district court's

order suppressing petitioner's statements. Pet. App. 19a. Because

the district court had refused to suppress the fruits of

petitioner's statements, the court of appeals also concluded that

the district court had "necessarily found that [petitioner's]

statements were voluntary under the Fifth Amendment" and thus

admissible under Section 3501. Ibid.’

b. Judge Michael dissented in part. He would not have

addressed the applicability of Section 3501, because the government

had not invoked the statute and the court of appeals did not have

the benefit of full briefing and argument on the issue. Pet. App.

25a-27a. In his view, it was "a mistake for our court to push

§3501 into this case." Id. at 27a.

5. Petitioner sought rehearing en banc. The government filed

a brief in support of partial rehearing en banc. In that brief (at

12), the government argued that "on the current state of the

Supreme Court's Miranda jurisprudence, taken as a whole," the lower

federal courts could not properly “conclude that the Miranda rules

* The court of appeals also reversed the district court's

order suppressing the physical evidence seized from petitioner's

apartment. Pet. App. 17a-19a. Judge Michael disagreed with the

re conclusion that the search warrant was sufficiently

particular, but agreed that the evidence seized was nonetheless

admissible pursuant to the good-faith exception. Jd, at 27a-28a.

8 _

lack a constitutional footing. * * * [T]he Supreme Court's

continued application of the Miranda rulings to the States and on

habeas review cannot be explained on any other ground than that the

Court regards [the requirements set forth in Miranda] as

implementing and effectuating constitutional rights." The

government further argued that "([w]hatever retreats there may be in

some decisions from Miranda's original constitutional premises, the

lower federal courts are bound by Supreme Court holdings unless and

until the Supreme Court itself overrules them." Id. at 6 (citing

Agostini v. Felton, 521 U.S. 203, 237 (1997)). The government thus

concluded that the lower federal courts "may not apply Section 3501

to admit confessions that Miranda would exclude." Id. at 12.

- The court of appeals denied rehearing en banc by an 8-5 vote.

Pet. App. l1d-2d.

DISCUSSION

1. Petitioner seeks review (Pet. 9-14) of the court of

appeals' holding that 18 U.S.C. 3501 supersedes this Court's

decision in Miranda v. Arizona, 384 U.S. 436 (1966). The question

whether Congress may supersede Miranda and authorize the admission

of an unwarned, but voluntary, statement in the government's case-

in-chief is one of exceptional importance that warrants this

Court's review.

If the Miranda decision and its progeny represent an exercise

cof this Court's authority to implement and effectuate

constitutional rights, those decisions are binding on Congress.

See City of Boerne v. Flores, 521 U.S. 507, 516-529 (1997).

9

Accordingly, the crucial issue in deciding whether 18 U.S.C. 3501

can supersede Miranda is whether the Miranda rulings are

constitutionally based or, alternatively, represent only

supervisory “rules of procedure and evidence." Pet. App. 3a. This

Court's case law since Miranda has, we believe, created

considerable confusion over the precise nature of the Miranda rules

and the constitutional source of the Court's authority to pronounce

and apply them. Nevertheless, we believe that the body of this

Court's existing decisions on the issue requires the conclusion

that Miranda implements and protects- constitutional rights.

Critical to that conclusion is the fact that the Court has

consistently applied Miranda to the States and on federal habeas

review of state convictions - applications that can only be

justified on the premise that Miranda states a rule of

constitutional law.

Because the Miranda decision is of constitutional dimension,

Congress may not legislate a contrary rule unless this Court were

to overrule Miranda. We submit that principles of stare decisis do

not favor the overruling of Miranda, and we do not request the

Court to take that step. In the thirty-three years since that

decision was handed down, it has become embedded in the law and

refined through the decisions of this Court. We acknowledge that

there is a profound cost to the truthfinding function of a criminal

trial when reliable evidence is suppressed. That value necessarily

must weigh heavily in this Court's appraisal of the continued

validity of Miranda. In many respects, however, Miranda is

10

beneficial to law enforcement. On balance, we do not believe that

the developments since Miranda warrant reexamination of the essence

of the balance that the Court has struck between the needs of law

enforcement and the rights of a suspect.‘ Accordingly, Section

3501 cannot constitutionally authorize the admission of a statement

that would be excluded under this Court's Miranda cases.

a. The Self-Incrimination Clause of the Fifth Amendment

provides that no person "shall be compelled in any criminal case to

be a witness against himself." In Miranda, the Court held that

.« * That balance has been described as follows:

Custodial interrogations implicate two competing

concerns. On the one hand, the need for police

questioning as a tool for effective enforcement of

criminal laws cannot be doubted. Admissions of guilt are

more than merely desirable;. they are essential to

society's compelling interest in finding, convicting, and

punishing those who violate the law. On the other hand,

the Court has recognized that the interrogation process

is inherently coercive and that, as a consequence, there

exists. a substantial risk that the police will

inadvertently traverse the fine line between legitimate

efforts to elicit admissions and constitutionally

impermissible compulsion. Miranda attempted to reconcile

these opposing concerns by giving the defendant the power

to exert some control over the course of the

interrogation. Declining to adopt the more extreme

position that the actual presence of a lawyer was

necessary to dispel the coercion inherent in custodial

interrogation, the Court found that the suspect's Fifth

Amendment rights could be adequately protected by less

intrusive means. Police questioning, often an essential

part of the investigatory process, could continue in its

traditional form, the Court held, but only if the suspect

clearly understood that, at any time, he could bring the

proceeding to a halt or, short of that, call in an

attorney to give advice and monitor the conduct of his

interrogators.

Moran v. Burbine, 475 U.S. 412, 426-427 (1986) (citations and

internal quotation marks omitted). .

a —+ eee ee

11

statements stemming from custodial interrogation of a suspect are

inadmissible at trial unless the police first provided the suspect

with a set of four specific warnings.*® 384 U.S. at 444. The Court

noted that, while it might not find statements taken without the

warnings "to have been involuntary in traditional terms," jd. at

457, procedural safeguards were necessary because custodial

interrogation is inherently coercive, and that, "[(u]nless adequate

protective devices are employed to dispel the compulsion inherent

in custodial surroundings, no statement obtained from the defendant

can truly be the product of his free choice." Jd. at 458; see jd.

at 467.

In resolving the "constitutional issue" of the "admissibility

of statements obtained from a defendant questioned while in

custody, " 384 U.S. at 445, Miranda made clear that the safeguards

it adopted were not themselves constitutional rights. The Court

said: "Congress and the States are free to develop their own

safeguards for the privilege, so long as they are fully as

effective as those described above in informing accused per'sons of

their right of silence and in affording a continuous opportunity to

exercise it." Id. at 490. But, the Court continued, "[t]he

warnings required and the waiver necessary in accordance with our

opinion today are, in the absence of a fully effective equivalent,

prerequisites to the admissibility of any statement made by a

* Those warnings are that (1) the defendant has the right to

remain silent; (2) any statement he makes may be used as evidence

against him; (3) he has the right to the presence of an attorney;

and (4) if he cannot afford an attorney, one will be appointed

him. 384 U.S. at 479. —

12

defendant." Id. at 476; see also id. at 491 ("Where rights secured

by the Constitution are involved, there can be no rule making or

legislation which would abrogate them.").

In 1968, Congress enacted Section 3501 with the express

purpose of overturning Miranda. Congress did not accept the

Court's invitation to devise an alternative procedural safeguard

for Fifth Amendment rights; rather, it sought through Section 3501

to restore the test for admissibility of custodial statements that

prevailed before Miranda. See S. Rep. No. 1097, 90™ Cong., 2d

Sess. 51 (1968). Under ‘S3ection 3501, the question whether the

police warned a suspect held in custody of his constitutional

rights before interrogating him is treated, as it was before

Miranda, as one of several non-exclusive factors to be considered

in determining voluntariness. See, e.g., Haynes v. Washington, 373

U.S. 503, 516-517 (1963) (considering absence of warnings about

right to remain silent, that statements could be used against

suspect, and that suspect had right to counsel in assessing

voluntariness under the Due Process Clause).

The court of appeals concluded that Congress is free to

supersede Miranda because this Court's decisions reveal that

Miranda's requirements are not based in the Constitution. Pet.

App. l4a-1l6a. We do not agree. The Court in Miranda clearly

rested its holding on the Fifth Amendment, explaining that in the

four cases that were before the Court in Miranda, the unwarned

confessions “were obtained from the defendant under circumstances

that did not meet constitutional standards for protection of the

13

privilege." 384 U.S. at 491; accord id. at 439, 458, 467, 477. It

is true that the Court has retreated from that aspect of its

reasoning in Miranda. In a line of cases beginning with Michigan

v. Tucker, 417 U.S. 433 (1974), the Court has held that a failure

to apply Miranda's interrogation safeguards is not per se a

constitutional violation and that a statement will not invariably

be deemed "compelled" in violation of the Fifth Amendment privilege

against compelled self-incrimination simply because it was

unwarned. In Tucker, the Court declined to suppress the testimony

of a witness whose identity was learned from a statement taken in

violation of Miranda, because the Court found that the police

conduct at issue did not “breach the right against compulsory self-

incrimination[,] * * * but departed only from the prophylactic

standards later laid down by this Court in Miranda to safeguard

that privilege." 417 U.S. at 445-446.

Since Tucker, this Court has frequently observed that the

Miranda rules are “prophylactic” in character and that an unwarned

statement is not necessarily “compelled” in violation of the Fifth

Amendment . See, e.g., Davis v. United States, 512 U.S. 452, 457

(1994); Duckworth v. Eagan, 492 U.S. 195, 203 (1989); Connecticut

v. Barrett, 479 U.S. 523, 528 (1987). Consistent with the

description of Miranda's procedures as prophylactic, in Oregon v.

Elstad, 470 U.S. 298 (1985), the Court declined to suppress the

fruits of an unwarned statement, emphasizing that the "fruit of the

poisonous tree" doctrine "assumes the existence of a constitutional

violation" (jd. at 305), but that "(t]he Miranda exclusionary rule

14

* * * may be triggered even in the absence of a Fifth Amendment

violation." Id. at 306. The Court has also recognized a "public

safety" exception to Miranda's "prophylactic rule, " stressing that

a violation of the procedural safeguards of Miranda is not itself

a violation of the Fifth Amendment. New York v. Quarles, 467 U.S.

649, 657 (1984). And the Court has concluded that unwarned

statements may be used to impeach the defendant at trial

notwithstanding the violation of Miranda, if the traditional test

for “voluntariness" is satisfied. See Oregon v. Hass, 420 U.S.

714, 722-723 (1975); Harris v. New York, 401 U.S. 222, 224 (1971).

Considered in isolation, the language used in Tucker and its

progeny that a violation of Miranda is not a violation of the

Constitution could be read to support an inference that Miranda is

not a constitutional rule. Indeed, the Fourth Circuit read those

statements to mean that Miranda is simply a "judicially created

rule" that may be supplanted by legislation. Pet. App. 17a. We

agree that these statements generate tension witiin the Court's

Miranda decisions. A well-established line of this Court's cases,

however, requires the conclusion that Miranda, as applied by this

Court, does indeed rest on a constitutional basis.

Beginning with Miranda itself, this Court has repeatedly

applied the warnings requirement, and its associated suppression

remedy, to cases arising in state courts.*® See, e.g., Stansbury v.

* Three of the four consolidated cases in Miranda itself

arose in state courts, as did Tucker, Elstad, Quarles and other

cases on which the court of appeals relied in concluding that

Miranda lacks a constitutional basis. The fourth of the

(continued...)

15

California, 511 U.S. 318 (1994) (per curiam); Minnick v.

Mississippi, 498 U.S. 146 (1990); Arizona v. Roberson, 486 U.S. 675

(1988); Edwards v. Arizona, 451 U.S. 477, 481-482 (1981). Although

this Court has the power to announce rules of procedure and

evidence binding on federal courts, it has consistently disclaimed

— both before and after Miranda — any such supervisory authority

over state courts. The Court's authority in state cases "is

limited to enforcing the commands of the United States

Constitution." Mu'Min v. Virginia, 500 U.S. 415, 422 (1991). See

Smith v. Phillips, 455 U.S. 209, 221 (1982) ("Federal courts hold

no supervisory authority over state judicial proceedings and may

intervene only to correct wrongs of constitutional dimension.").

Because federal judges "may not require the observance of any

special procedures" in state courts "except when necessary to

assure compliance with the dictates of the Federal Constitution,"

Harris v. Rivera, 454 U.S. 339, 34-345 (1981) (per curiam), the

Court's continued application of Miranda's exclusionary rule in

state cases necessarily means that Miranda rests on the Court's

authority to apply the Constitution.

The same point is manifest in this Court's holding that claims

of Miranda violations are cognizable on federal habeas review. See

Withrow v. Williams, 507 U.S. 680, 690-695 (1993); see also

Thompson v. Keohane, 516 U.S. 99 (1995). riabeas corpus is

available only for claims that a person "is in custody in violation

(...continued)

consolidated cases in Miranda involved a federal conviction

(Westover v. United States, No. 761).

16

of the Constitution or the laws or treaties of the United States."

28 U.S.C. 2254(a). Because Miranda is not a "law" or a treaty, the

Court's holding in Withrow necessarily depends on the premise that

the requirements of Miranda implement and protect constitutional

rights.

Significantly, this Court has regularly described the Miranda

holding, and subsequent extensions of that holding, as resting on

constitutional grounds. See, e.g., Illinois v. Perkins, 496 U.S.

292, 296 (1990) (describing Miranda rules as resting on "the Fifth

Amendment privilege against self-incrimination"); Butler v.

McKellar, 494 U.S. 407, 411 (noting holding of Arizona v. Roberson

"that the Fifth Amendment bars police-initiated interrogation

following a suspect's request for counsel in the context of a

separate investigation"); Michigan v. Jackson, 475 U.S. 625, 629

(1986) ("The Fifth Amendment protection against compelled self-

incrimination provides the right to counsel at custodial

interrogations."); Moran v. Burbine, 475 U.S. 412, 427 (1986)

(describing Miranda as "our interpretation of the Federal

Constitution"); Edwards v. Arizona, 451 U.S. 477, 481-482 (1981)

(describing Miranda as having "determined that the Fifth and

Fourteenth Amendments[)" required custodial interrogation to be

preceded by advice concerning the suspect's rights). As those

cases highlight, the Court's description of the Miranda rules as

"prophylactic" does not mean that the rules are therefore extra-

constitutional. As the Court stated in Withrow: "' [p] rophylactic’'

though it may be, in protecting a defendant's Fifth Amendment

— wee ee Se

17

privilege against self-incrimination, Miranda safeguards ‘a

fundamental trial right.'" 507 U.S. at 691 (emphasis omitted).

The court of appeals in this case did not confront the import

of this Court's application of Miranda to the States and on habeas

review, nor did the court address the Court's own description of

the Miranda-based holdings as constitutional in nature. Rather,

the court stated that, although it "raises an interesting academic

question," this Court's application of Miranda in state

prosecutions “has no bearing on our conclusion that Miranda's

conclusive presumption is not required by the Constitution." Pet.

App. 24a n.21. Any conclusion about the legal source ef Miranda,

however, must take into account the Court's application of that

case to the States, since this Court could not do so if Miranda

were a non-constitutional rule of procedure or evidence.

In sum, this Court's Miranda jurisprudence establishes that

the Miranda rules, as applied by the Court, have a constitutional

foundation. The specific warnings required by Miranda are not

themselves mandated by the Fifth Amendnent . But this Court's

continued application of the Miranda rulings to the States and on

habeas review cannot oe explained on any other ground than that the

Court regards them as implementing and effectuating constitutional

rights. Because Miranda is of constitutional dimension, it cannot

be superseded merely by legislation. See City of Boerne v. Flores,

521 U.S. at 516-528; Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803). Accordingly, before Section 3501 could be applied in a

manner that is inconsistent with this Court's Miranda

18

jurisprudence, the Court would have to reconsider and overrule

Miranda.

b. The resolution of whether Miranda should be overruled or

reaffirmed raises fundamental questions and implicates competing

interests of the highest order. Weighing those interests is not an

easy task. But in our view, sound application of pxiaciples of

stare decisis dictates that at this point in time, thirty-three

years after Miranda was decided and many years after it has been

absorbed into police practices, judicial procedures, and the public

understanding, the Miranda decision should not be overruled. As

Chief Justice Burger stated nineteen years ago: "The meaning of

Miranda has become reasonably clear and law enforcement practices

have adjusted to its strictures; I would neither overrule Miranda,

disparage it, nor extend it at this late date." Rhode Island v.

Innis, 446 U.S. 291, 304 (1980) (Burger, C.J., concurring).

Stare decisis “permits society to presume that bedrock

principles are founded in the law rather than in the proclivities

of individuals, and thereby contributes to the integrity of. our

constitutional system of government, both in appearance and in

fact." Vasquez v. Hillary, 474 U.S. 254, 265-266 (1986). While

"stare decisis is not an ‘inexorable command,'" especially in a

constitutional case, Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833, 854 (1992), "“[fe]ven in

constitutional cases, the doctrine carries such persuasive force

that [the Court] ha[s) always required a departure from precedent

to be supported by some ‘special justification.'" United States v.

19

International Business Machines Corp., 517 U.S. 843, 856 (1996).

Among the factors considered in stare decisis analysis are the

costs and workability of the prior decision, developments in the

law that have affected the validity of the past precedent, and

changes or perceived changes in the factual premises underlying the

precedent. See, e.g., Casey, 505 U.S. at 854-855; Payne v.

Tennessee, 501 U.S. 808, 827-830 (1991); Vasquez v. Hillery, 474

U.S. 254, 265-266 (1986). In addition, in a case involving a

decision of the significance of Miranda, larger considerations of

the continuing value of the decision enter into the calculus as

well. Cf. Casey, 505 U.S. at 861.’

(i.) Costs and Workability. The core holding cf Miranda is

that statements that are obtained in custodial interrogation are

inadmissible in the prosecution's case-in-chief unless the suspect,

before speaking, was given the prescribed warnings and waived his

rights to remain silent and to consult counsel. Any consideration

of whether that holding should be overruled must begin witn an

assessment of Miranda's costs and benefits, and whether Miranda has

proven workable in practice.

There are undeniably instances in which the exclusionary rule

of Miranda imposes costs on the truth-seeking function of a trial,

” Reliance interests are also an important factor, and rules

of criminal procedure do not in general give rise to substantial

reliance interests. See Payne v. Tennessee, 501 U.S. 808, 828

(1991). It is unlikely that there are any criminal defendants who

gave unwarned confessions in reliance on the belief that they would

not be used in the prosecution's case-in-chief. As we note below,

ae a, ay soll a.

requirements ° ce

governed decades of criminal guedueutiens.

20

by depriving the trier of fact of “what concededly is relevant

evidence." Colorado v. Connelly, 479 U.S. i157, 166 (1986); see

also, e.g., McNeil v. Wisconsin, 501 U.S. 171, 181 (1991) (the

“ready ability to obtain uncoerced confessions is not an evil but

an unmitigated good"); Michigan v. Harvey, 494 U.S. 344, 350 (1990)

(Miranda's exclusionary rule "“result([s) in the exclusion of some

voluntary and reliable statements"); Oregon v. Elstad, 470 U.S.

298, 312 (1985) (loss of "highly probative evidence of a voluntary

confession" is a "high cost to legitimate law enforcement").* In

our view, however, the inevitable cost of Miranda's exclusionary

rule'does not so impede or undermine law enforcement that the

overruling of Miranda is warranted. Rather, the judgment and

experience of federal law enforcement agencies is that Miranda is

workable in practice and serves several significant law enforcement

objectives. Indeed, in the thirty-one years since the enactment of

Section 3501, the United States has never asked this Court to

reconsider its decision in Miranda.

Miranda's core procedures are not difficult to administer.

* The Court has made the same point in discussing the Fourth

Amendment exclusionary rule. See, *

Probation & Parole v. Scott, 524 U.S. 357, 364 (1998) ("Because the

exclusionary rule precludes consideration of reliable, probative

evidence, it imposes significant costs: It undeniably detracts from

the truthfinding process and allows many who would otherwise be

incarcerated to escape the consequences of their actions."); United

States v. Leon, 468 U.S. 897, 907 n.6 (1984) ("The substantial

social costs exacted by the exclusionary rule * * * have long been

a source of concern. * * * ‘Any rule of evidence that denies the

jury access to clearly probative and reliable evidence must bear a

heavy burden of justification, and must be carefully limited to the

circumstances in which it will pay its way by deterring official

lawlessness.'") (quoting I]linois v. Gates, 462 U.S. 213, 257-258

(1983) (White, J., concurring) ).

21

Federal agents do not find it difficult, in general, to read a

suspect his rights and determine whether the suspect wishes to

answer questions. And the administration of Miranda warnings is

useful, for a defendant who waives his rights will often forego any

challenge to the admissibility of an ensuing confession. In those

instances in which such challenges nonetheless are made, compliance

with Miranda helps ensure that statements will be deemed admissible

because they were voluntary. Indeed, long before Miranda was

decided, the Federal Bureau of Investigation had adopted a practice

of administering warnings similar to those required by Miranda to

all suspects before questioning them. See 384 U.S. at 483-488 &

n.34. That practice was instituted to ensure that suspects are

treated fairly while simultaneously obtaining important

investigative information and reliable statements that are

admissible in court. See id. at 483 n.54 (noting statement of J.

Edgar Hoover, then-Director of the FBI, explaining that the FBI's

policy of giving warnings was based on the principle that "[l]aw

enforcement, * * * in defeating the criminal, must maintain

inviolate the historic liberties of the individual.") The FBI's

policy was workable before Miranda, and the FBI has had very little

difficulty complying with the bright-line core mandates of the

Miranda decision since 1966.

The experience of other federal law enforcement agencies since

Miranda has also confirmed that Miranda has proved workable in

practice and is in many respects beneficial to law enforcement. It

is the policy of some agencies, such as the Internal Revenue

22

Service and the Bureau of Alcohol, Tobacco, and Firearms, to

provide Miranda warnings not only before engaging in custodial

interrogation, but also in at least some non-custodial settings.

The experience of those agencies is that the core Miranda warnings

and waiver framework is administrable and does not impede law

enforcement. In short, federal law enforcement agencies have

concluded that the Miranda decision itself generally does not

hinder their investigations and the issuance of Miranda warnings at

the outset of a custodial interrogation is in the best interests of

law enforcement as well as the suspect.

This Court has frequently noted that it is a virtue of Miranda

that it affords bright-line rules that can be readily applied by

the police and the courts to a large variety of factual

circumstances.’ Indeed, even when, as in Quarles, the Court

created an exception to the Miranda rules for public safety, the

Court explained that "the exception will not be difficult for

* See Withrow v. Williams, 507 U.S. 680, 695 (1993) ("There

is little reason to believe that the police today are unable, or

even generally unwilling, to satisfy Miranda's requirements.") ;

Arizona v. Roberson, 486 U.S. 675, 681 (1988) ("We have repeatedly

emphasized the virtues of a bright-line rule in cases following

Edwards, as well as Miranda."); Moran v. Burbine, 475 U.S. 412, 425

(1986) ("As we have stressed on numerous occasions, '[o]ne of the

principal advantages' of Miranda is the ease and clarity of its

application."); Berkemer v. McCarty, 468 U.S. 420, 432 (1984)

(noting "the simplicity aad clarity" of Miranda); Fare v. Michael

C., 442 U.S. 707, 718 (1979) (Miranda's "gain in specificity, which

benefits the accused and the State alike, has been thought to

outweigh the burdens that the decision in Miranda imposes on law

enforcement agencies and the courts."); see also New York v.

Quarles, 467 U.S. 649, 664 (1984) (O'Connor, J., concurring in the

t and dissenting in part) (Miranda rules have “afforded

police and courts clear guidance on the manner in which to conduct

a custodial investigation.").

23

police officers to apply," 467 U.S. at 658, that "police officers

can and will distinguish almost instinctively" between questions

permitted and prohibited under the exception, id. at 658-659, and

that the exception will "simply free [police officers] to follow

their legitimate instincts when confronting situations presenting

a danger to the public safety," id. at 659.

While Miranda itself is generally workable, federal law

enforcement agencies have encountered difficulties with some of the

extensions of Miranda in Edwards v. Arizona, 451 U.S. 477, 480

(1981), and later cases. Those cases require that, once a suspect

invokes his right to counsel during custodial interrogation, law

enforcement agents may not later reinitiate questioning, even on

matters unrelated to the crime for which the suspect was being held

and questioned. See Arizona v. Roberson, 486 U.S. 675 (1988);

Minnick v. Mississippi, 498 U.S. 146 (1990). Whatever difficulty

is caused by those decisions, however, is more properly charged to

the account of Edwards and Roberson than to Miranda, and any such

difficulty would properly be far more relevant should the Court be

faced with reconsideration of those decisions rather than Miranda

itself.*° The Miranda doctrine has undergone a continuous course

#0 ~The Court has already tailored the Miranda doctrine as

necessary to make it more workable. See, e.g,., Davis v. United

States, 512 U.S. 452 (1994) (ambiguous invocation cf right to

counsel does not require cessation of all questioning); Berkemer v.

McCarty, 468 U.S. 420 (1984) (Miranda warnings not required in a

routine traffic stop); New York v. Quarles, 467 U.S. 649, 657

(1984) (public safety exception). The Court has not recently

decided an issue, but in United States v. Green, 504 U.S.

908 (1992) (No. 91-5121), the Court granted certiorari to review

"“[w)hether Edwards * * * requires the suppression of a volunta

(continued. os: |

24

of development in this Court since 1966. Insofar as it is shown

that some applications of Miranda create inequity or are otherwise

unworkable, there is no reason to believe that the doctrine will

not continue to develop in future years as appropriate.”

Finally, a return to a totality-of-the-circumstances test in

all settings is unlikely to be more workable in practice than is

the Miranda rule itself. The underlying Fifth Amendment rule that

confessions are inadmissible unless they are found voluntary under

the traditional totality-of-the-circumstances test remains

applicable, even if the Miranda warnings have been administered.

See, e.g., Miller v. Fenton, 474 U.S. 104 (1985). As a general

9.) continued)

confession because law enforcement officers initiated interrogation

of the suspect five months after he invoked his right to counsel in

connection with an unrelated offense, where the suspect consulted

with counsel and pleaded guilty to the unrelated offense prior to

the interrogation." The case became moot after oral argument when

respondent died. See 507 U.S. 545 (1993). Had the case not become

moot, the Court would have decided whether a further refinement to

the Edwards-Roberson rules was appropriate.

11

Another problem that can occur in applying Miranda is that

officers who have detained or are questioning a suspect without

arresting him may be found by a court to have applied a "restraint

on freedom of movement of the degree associated with a formal

arrest." Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal

quotation marks and citations omitted). In that situation, an

officer may inadvertently fail to issue Miranda warnings. As this

Court has noted, "the task of defining 'custody' is a slippery one,

and ‘policemen investigating serious crimes [cannot realistically

be expected to] make no errors whatsoever.'" Oregon v. Elstad, 470

U.S. 298, 309 (1985). It therefore stands to reason that in some

close cases, the officers will make a mistake, but it will be a

“reasonable” one under all the circumstances. While the Court has

not considered whether to recognize an exception to Miranda in such

a case, it has adopted a rule in the Fourth Amendment exclusionary

rule context for cases in which police acted in good-faith reliance

on a warrant or authorization by another governmental actor. See

United States v. Leon, 468 U.S. 897, 90€-913 (1984); Arizona v.

Evans, 514 U.S. 1, 15 (1995).

25

matter, however, “cases in which a defendant can make a colorable

argument that a self-incriminating statement was ‘compelled'

despite the fact that the law enforcement authorities adhered to

the dictates of Miranda are rare." Berkemer v. McCarty, 468 U.S.

at 433 n.20. In the absence of Miranda, it is thus likely that

additional pressure would be placed on the voluntariness doctrine.

Although many law enforcement agents would no doubt continue to

follow the Miranda procedures to help ensure the admissibility of

confessions they obtain, it is likely that some police departments

would become less rigorous in requiring warnings and that some

police officers would, in the “often competitive enterprise of

ferreting out crime," Johnson v. United States, 333 U.S. 10, 14

(1948), fail to issue warnings before conducting custodial

interrogation. The result would likely be an additional volume of

litigation focusing on the totality-of-the-circumstances

voluntariness standard, which takes into account not only what the

agents say and do, see, e.g., Miller, 474 U.S. at 116, but also

facts about the particular suspect (such as his maturity,

education, physical condition, mental health, and knowledge of

constitutional rights, see Withrow, 507 U.S. at 693 (citing

cases)), about the circumstances of the questioning (the length of

the detention, the length and nature of the interrogation, the

physical constraints or deprivations imposed, the suspect's access

to friends and relatives, see id. at 693-694; Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973); Miranda, 384 U.S. at 445-446,

and other factors. Such a voluntariness inquiry would likely be

26

wore difficult and uncertain in application than Miranda.

(ii.) Relationship to Related Principles of Law. Perhaps the

feature of Miranda that has raised the greatest doctrinal doubt

about that decision's validity is the tension that has emerged in

this Court's cases that followed the Miranda decision itself. The

Court has consistently premised those decisions on the proposition

that Miranda's holding requires the suppression of unwarned

statements in the government's case-in-chief in state and federal

cases. * And the Court has never suggested that the core holding

of Miranda should be overruled. Indeed, if this Court were to

overrule Miranda, it would not only have to disavow the reasoning

of virtually all of its cases that have addressed the Miranda rule,

but would also have to overrule directly at least eleven cases that

have reaffirmed that a confession obtained in violation of Miranda

must be suppressed in the government's case-in-chief.”

2 The one exception is the Court's holding in New York v.

Quarles, 467 U.S. 649 (1984), recognizing a “public safety"

exception tc Miranda. But that case did not question the general

rule against the use of unwarned statements in the government's

case-in-chief, which the Court restated the following year in

Oregon v. Elstad, 470 U.S. 258, 306-307 (1985).

* Thompson v. Keohane, 516 U.S. 99 (1995) (holding that

whether a suspect is “in custody" for Miranda purposes is a mixed

question of law and fact deserving independent federal court

review); Withrow v. Williams, 507 U.S. 680 (1993) (holding Miranda

claims are cognizable on collateral review); Minnick v.

Mississippi, 498 U.S. 146 (1990) (suppressing statement given after

defendant had requested and been provided counsel, but while

counsel was not present); Pennsylvania v. Muniz, 496 U.S. 582

(1990) (suppressing unwarned response to question asked during

station house sobriety test); Arizona v. Roberson, 486 U.S. 675

(1988) (suppressing statement given during police-initiated

interrogation following suspect's request for counsel, even though

interrogation was in the context of a separate investigation) ;

(continued...)

27

The Court's decisions limiting the application of Miranda's

suppression rule outside of the government's case-in-chief,

however, have led some observers to conclude that Miranda has lost

its character as a rule that protects constitutional rights. The

Court's decisions in Tucker and later cases rest on the conclusion

that the procedural safeguards of Miranda are not required by the

Constitution and that a violation of Miranda's prestylectic rules

does not necessarily produce statements that are themselves

"compelled." That reasoning is the foundation of this Court's

holdings that unwarned, but voluntary, ecataneate may be used for

impeachment and for the acquisition of derivative evidence that may

be admitted at trial.** Since the Court has said that Miranda

violations do not necessarily involve a violation of the

Constitution, the question arises whether this Court has properly

determined to apply a suppression remedy in the government's case-

3(.. continued) “

Berkemer v. McCarty, 468 U.S. 420 (1584) (holding unanimously that

Miranda applies to questioning on misdemeanor charges); Smith v.

Illinois, 469 U.S. 91 (1984) (per curiam) (holding that defendant's

responses to questions asked after he requested counsel cannot be

used to cast doubt on clarity of his original request); Edwards v.

Arizona, 451 U.S. 477 (1981) (holding that once defendant requests

counsel, all questioning must cease); Estelle v. Smith, 451 U.S.

454 (1981) (suppressing unwarned statements given during court-

ordered competency examination); Orozco v. Texas, 394 U.S. 324

(1969) (suppressing unwarned statement taken while the suspect was

in his own bed but after he had been arrested); Mathis v. United

States, 391 U.S. 1 (1968) (suppressing unwarned statement elicited

by IRS agent during prison interview).

“In contrast, statements "compelled" under a grant of

immunity may generally not be used, consistent with the Fifth

Amendment, either for impeachment, see New Jersey v. Portash, 440

U.S. 450, 458-459 (1979), or for the acquisition of derivative

evidence that may be introduced against the defendant, see Kastigar

v. United States, 406 U.S. 441 (1972).

28

in-chief in all prosecutions, federal and state, for the violation

of judicially imposed prophylactic rules.

In our judgment, the Court's statements that Miranda's

"prophylactic" requirements sweep more broadly than does the Self-

Incrimination Clause itself does not invalidate Miranda's status as

a Fifth Amendment decision. The Court has long recognized that the

objective of requiring Miranda warnings "is not to mold police

conduct for its own sake. Nothing in the Constitution vests in us

the authority to mandate a code of behavior for state officials

wholly unconnected to any federal right or privilege. The purpose

of the Miranda warnings instead is to dissipate the compulsion

inherent in custodial interrogation and, in so doing, guard against

abridgement of the suspect's Fifth Amendment rights." Moran v.

Burbine, 475 U.S. 412, 425 (1986).

It is worth recalling that this Court adopted the procedural

safeguards of Miranda only after more than thirty years of applying

a case-by-case voluntariness test. That judicial experience led

the Court to conclude that Fifth Amendment rights in the custodial

interrogation setting could not adequately be protected through

case-specific adjudication of claims of police coercion, and that

procedural safeguards were required. See, e.g., Haynes v.

Washington, 373 U.S. 503, 515 (1963) ("The line between proper and

permissible police conduct and techniques and methods offensive to

due process is, at best, a difficult one to draw, particularly in

cases such as this where it is necessary to make fine judgments as

to the effect of psychologically coercive pressures and inducements

29

on the mind and will of an accused."). While there is room for

debate ‘about the wisdom of the Court's adoption of various

prophylactic constitutional rules, the Court has explained how

Miranda's status as a prophylactic rule is linked to the

constitutional provision on which it is based.

In Oregon v. Elstad, supra, the Court described the

relationship of the Miranda rules, as explicated in the subsequent

cases that recognized their "prophylactic" character, to the Self-

Incrimination Clause. The Court explained that the "[f]ailure to

administer Miranda warnings creates a presumption of compulsion

[that is] * * * irrebuttable for purposes of the prosecution's case

in chief." 470 U.S. at 307. Because a confession obtained in

violation of Miranda is subject to an "irrebuttable presumption of

compulsion" in the prosecution's case-in-chief, the suppression of

confessions in that context is consistent with the Self-

Incrimination Clause's requirement that a person not be "compelled"

to be a witness against himself. It is true, of course, that

establishment of such a conclusive presumption is a rule of law

that the Court has crafted to administer litigation of Fifth

Amendment issues. But that does not detract from its basis in the

Court's interpretation of the Constitution.*®

The Court in Elstad also noted that, because outside the

government's case-in-chief a confession obtained in violation of

* See Elstad, 470 U.S. at 306-307 n.1 ("A Miranda violation

does not constitute coercion but rather affords a bright-line,

legal presumption of coercion, requiring suppression of all

unwarned statements [in the government's case-in-chief] .")

30

Miranda is subject only to a rebuttable presumption of compulsion,

an unwarned confession may be used for impeachment or to obtain

evidence. 470 U.S. at 307 ("But the Miranda presumption, though

irrebuttable for purposes of the prosecution's case in chief, does

not require that the statements and their fruits be discarded as

inherently tainted."). The rule in those settings thus permits use

of the confession so long as the presumption of compulsion is

overcome by a showing under the totality of the circumstances that

the statement was made voluntarily. Ibid.; see Lego v. Twomey, 404

U.S. 477, 489 (1972).

There are other contexts in which this Court similarly has

recognized prophylactic rules that are designed to protect

constitutional rights, even when those rules may sweep more broadly

than the constitutional right upon which they are based.** In

Michigan v. Jackson, 475 U.S. 625, 636 (1986), the Court held that,

*© We note that in most criminal settings, the often-heavy

costs of such prophylactic rules do not outweigh the potential

marginal protection they offer for the underlying constitutional

right. Ordinarily, therefore, this Court requires proof of an

individualized constitutional harm before framing a remedy. See,

e.g., United States v. Morrison, 449 U.S. 361, 364 (1981). And,

because judicially devised prophylactic rules are designed merely

to provide sufficient protection for the underlying constitutional

right, the legislature's adoption of alternative and equally

effective safeguards would be valid. See Miranda, 384 U.S. at 467

(noting that the Miranda rules must be observed "unless we are

shown other procedures which are at least as effective in apprising

accused persons of their right of silence and in assuring a

continuous opportunity to exercise it."). That does not, however,

deprive the Miranda rules of their constitutional status; it merely

suggests the possibility that the Constitution's commands may be

satisfied in alternative ways. See also United States v. Wade, 388

U.S. 218, 239 (1967) (regulations and procedures that eliminate the

possibility of abuse at lineups may also eliminate the otherwise

applicable constitutional requirement that counsel be present at

post-arraignment lineups).

, 31

once a defendant has invoked his Sixth Amendment right to counsel

at an arraignment or similar proceeding, “any waiver of the

defendant's right to counsel for that police-initiated

interrogation is invalid." In Michigan v. Harvey, 494 U.S. 344

(1990), however, the Court held that such invalidity requires

suppression of a confession obtained in violation of Jackson only

in the prosecution's case-in-chief, but not when it is offered for

impeachment purposes. The Court explained that distinction on the

ground that Jackson is "not compelled directly by the

Constitution," 494 U.S. at 351-352, but sets forth a "prophylactic

rule," id. at 345, 346, 349, 351, 353, “designed to ensure

voluntary, knowing, and intelligent waivers of the Sixth Amendment

right to counsel," id. at 351. The Court acknowledged in Harvey

that the rationale of this line of Sixth Amendment decisions based

on the rationale underlying Miranda. See 494 U.S. at 349-352.”

Similarly, in North Carolina v. Pearce, 395 U.S. 711 (1969),

the Court held that an increased sentence imposed on a defendant

after a successful appeal and reconviction is presumed to be the

4

” Another example of a prophylactic rule is the Confrontation

Clause doctrine of Bruton v. United States, 391 U.”%. 123 (1968),

which forbids the admission of a nontestifying codefendant's

confession in a joint trial, even with a limiting instruction, to

avoid the risk that it will be misused by the jury. See Gray v.

Maryland, 523 U.S. 185, 189, 192, 197 (1998) (referring to

“protective rule" of Bruton). Although some juries might be able

to follow a limiting instruction, the Court concluded that the risk

that many may not do so warranted a conclusion that the

Confrontation Clause itself protects the defendant against the

latter possibility. But in a situation where competing values

outweigh that risk, the co-defendant's confession may be used. See

Tennessee v. Street, 471 U.S. 409 (1985) (confession that is

inadmissible under Bruton rule is admissible for impeachment).

32

product of vindictiveness and therefore unconstitutional unless

non-vindictive reasons for the increased sentence appear on the

record. The Court has explained that Pearce is a "prophylactic

rule" and has noted the similarities between the "prophylactic

rules" in Pearce and Miranda. Michigan v. Payne, 412 U.S. 47, 53-

54 (1973); see also Wasman v. United States, 468 U.S. 559 (1984);

United States v. Goodwin, 457 U.S. 368, 372-377 (1982); Colten v.

Kentucky, 407 U.S. 104, 116 (1972). The Court reached a similar

conclusion in Blackledge v. Perry, 417 U.S. 21 (1974), holding that

a State may not respond to a defendant's attempt to seek a trial de

novo in a higher tier of a two-tier court system by charging the

defendant with a more serious offense. The Court has recognized

that the rules announced in Pearce and Blackledge, like the rules

in Miranda and Jackson, require a decision in favor of the

defendant in some cases even though the underlying constitutional

right being protected may not have been violated in a particular

case.** But the Court determined that such rules were necessary to

the effectuation of the Constitution.’’

* See Rlackledge, 417 U.S. at 27 (applying the rule

notwithstanding that there was "no evidence that the prosecutor in

this case acted in bad faith or maliciously"); Payne, 412 J.S. at

54 (moting that Pearce adopted presumption of vindictiveness

notwithstanding that "nothing in Pearce intimates that the Court

regarded [judicial vindictiveness) as anything more than an

infrequently appearing blemish on the sentencing process").

** The Court has also adopted constitutional prophylactic

rules that predictably overprotect constitutional rights in a

variety of other settings. See, e.g., Gertz v. Robert Welch, Inc.,

418 U.S. 323, 340, 342 (1974) (explaining that, even though "there

is no constitutional value in false statements of fact," the Court

in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and its

(continued...)

ORE ey

33

Our point is not that such rules are always correct, or that

prophylactic rules in a criminal case that lead to the suppress:on

of evidence are often justified. See note 16, supra. In a

criminal case, especially where such a rule leads to suppression,

it imposes heavy costs on the central truth-finding function of a

trial. Thus, no such rule should be adopted without a convincing

justification. Nonetheless, prophylactic rules are now and have

been for many years a feature of this Court's constitutional

adjudication. Miranda is distinctive in the detail with which the

Court specified particular procedural safeguards. But Miranda's

adoption of a prophylactic rule, which has since been applied where

necessary but not where its adverse effects would outweigh any

benefits, does not uniquely depart from the Court's constitutional

jurisprudence.

(iii.) Change in Factual Premises. There appear to be at

least two key factual assumptions underlying Miranda. First, "the

process of in-custody interrogation of persons suspected or accused

of crime contains inherently compelling pressures." 384 U.S. at

467. Second, “without proper safeguards" -- provided by the

administration of the Miranda warnings -- there is a great risk

that those pressures may “undermine the individual's will to resist

and to compel him to speak where he would not otherwise do so

#(.. . continued)

progeny nevertheless "extended a measure of strategic protection

to defamatory falsehood" in cases involving public officials and

public figures); Freedman v. , 380 U.S. 51, 58 (1965)

(setting forth "procedural safeguards designed to obviate the

me - a censorship system" with respect to motion picture

obscenity) .

34

freely." Ibid. Debate concerning each of those premises is

possible, as it was at the time Miranda was decided. The inquiry

for purposes of stare decisis, however, focuses on changes in

circumstance, because the rule of stare decisis would provide

little stability if the factual premises of previous decisions were

constantly subject to reconsideration, even when the evidence

showed no change of circumstance.*° We cannot conclude that the

passage of time or other developments in our society have

substantially altered the validity of either of the factual

premises on which Miranda was based.

The Court's perception of custodial interrogation as

inherentiy coercive was based on the Court's prior "voluntariness"

cases and its review of police interrogation manuals. See Miranda,

384 U.S. at 445-456. The Court's conclusion was not driven solely

by cases of physical abuse; to the contrary, the Court "stress [ed]

that the modern practice of in-custody interrogation is

psychologically rather than physically oriented." Id. at 448.

Custodial interrogation is an important and necessary procedure of

law enforcement, and law enforcement agents today are generally

better trained than they were in 1966. It cannot be said, however,

7° In a companion federal case decided with Miranda, the

United States argued that, in deciding whether a suspect's

statements during in-custody questioning were the product of

compulsion, the Court should require consideration of the totality

of the circumstances, rather than adopting a constitutional rule

turning on the presence or absence of warnings. Brief for the

United States, Westover v. United States, No. 761, at 28-38 (filed

February 1966). The calculus of whether to retain Miranda's rule

with respect to unwarned statements, thirty-three years after the

Court announced it, presents very different considerations.

——

35

that the interrogation process is so uniformly different now than

at the time of Miranda that changes have undercut the validity of

that decision. .

With respect to the warnings as an effective antidote to the

inherently coercive pressures perceived by the Court in Miranda,

there has also been little change in circumstance. Some modern

technologies -- videotaping, for example -- could offer promise in

documenting that a particular confession was not affected by any

coercion inherent in the custodial setting. But no assurance

exists that such technological substitutes could provide a suitable

replacement for the by-now well-understood Miranda warnings on a

large-scale basis. Nor does the widespread public familiarity with

the Miranda warnings suggest that they are no longer necessary. If

Miranda were overruled, it is difficult to predict how long that

familiarity would persist.**’ And even if a suspect held in custody

already knows of his rights, the Court in Miranda believed that the

provision of warnings in each case "show([s] the individual that his

interrogators are prepared to recognize his privilege should he

choose to exercise it." Id. at 468. Once again, there is no basis

for a conclusion that changed circumstances or a changed perception

of the facts warrants reassessment of that view.

*} Federal law enforcement agencies would, as a matter of

policy, continue to comply with the warnings requirements of

Miranda. We are unable to predict whether state and local law

enforcement would do so. More to the point here, there would be no

basis for the Court to draw a firm conclusion about what practices

would ensue were it to overrule Miranda.

36

* * * . *

In considering whether the Court should revisit Miranda, it is

appropriate to make an observation that transcends the usual

factors considered under the rubric of stare decisis. In our view,

Miranda has come to play a unique and important role in the

nation's conception of our criminal justice system: it promtes

public confidence that the criminal justice system is fair.

Overruling Miranda -- at this juncture, more than three decades

after it was announced and after law enforcement has accommodated

to its basic requirements -- would thus tend to undermine public

confidence in the fairness of that system. The law enforcement

system depends on citizen cooperation and support in myriad ways.

Steps that may damage that confidence should not be taken lightly.

There is no doubt that the public pays a heavy price if

technical violations of Miranda result in suppression of otherwise-

reliable evidence, and non-prosecution or acquittal of felons

ensues. But there are benefits of Miranda as well, in establishing

clear guidelines of conduct for agents, facilitating the admission

of confessions that follow administration of the warnings,

bolstering the credibility of such confessions in the eyes of

jurors, and generally contributing to the perceived fairness of the

criminal justice system. The stability of this Court's

constitutional jurisprudence is also important to the system of

justice. Especially in light of those factors, we do not urge the

_

37

Court that Miranda be overruled.”

2. Petitioner also contends (Pet. 15-17) that the court of

appeals erred by reaching the applicability of 18 U.S.C. 3501 sua

sponte and by failing, in any event, to conclude that the district

court did not commit plain error in declining to consider it. The

path by which the court of appeals reached its decision is unusual.

The government did not raise Section 3501 in the district court

until moving for reconsideration, and it did not raise Section 3501

on appeal at all.*’ For its part, the court of appeals declined to

require the district court to consider the evidence presented in

the government's motion for reconsideration that petitioner was

read and waived his Miranda rights before making the substance of

the statements that were the subject of the suppression order.

Instead, the court sua sponte reached the constitutional question

raised by Section 3501.”

#2 We note, pursuant to Section 21(c) of Pub. L. No. 96-132,

93 Stat. 1049-1050 (1979), as apparently extended to the past

fiscal year by Pub. L. No. 105-277, § 102, 112 Stat. 2681-66, that

the position of the Department of Justice set forth in this brief

regarding the constitutionality of Section 3501 constitutes the

position of the executive branch of the United States.

*? As Judge Michael noted in his dissent (Pet. App. 25a), the

government's decision on appeal not to invoke Section 3501 is

consistent with the virtually unbroken practice of the government

since the enactment of the statute. See Davis v. United States,

512 U.S. 452, 463-464 (1994) (Scalia, J., concurring) (*"(W)ith

limited exceptions the provision has been studiously ignored by

every Administration, not only in this Court but in the lower

courts, since its enactment more than 25 years ago.").

* We continue to believe that the court of appeals erred in

concluding that it was free to depart from this Court's decision in

Mixanda based on a perception that that case was undermined by

other precedents, see Agostini v. Felton, 521 U.S. ' a | 5

continued...

38

The court of appeals' action is subject to question on

prudential grounds. While appellate courts have a measure of

discretion to identify the issues presented for resolution, that

discretion does not usually include adjudicating the

constitutionality of a statute that the government has declined to

invoke on appeal. Nevertheless, the issue whether that discretion

was properly exercised in this case does not independently merit

review. Nor is review warranted of the case-specific question

whether, if Section 3501 was properly before the court of appeals,

its applicability to this case should have been reviewed under the

plain error standard.

3. Petitioner also seeks review of the court of appeals'

holding that the Fourth Amendment does not require suppression of

the physical evidence obtained during execution of the search

warrant at petitioner's apartment. Pet. 18-22. All three panel

members correctly concluded that the physical evidence should not

be suppressed, and no broad legal issue is presented.

The Particularity Clause of the Fourth Amendment seeks to

prevent "a general, exploratory rummaging in a _ person's

belongings," by requiring that warrants particularly describe the

24. .continued)

we also note (as we did in our brief in support of partial

rehearing en banc at 13 n.5) that, if the court of appeals had

ordered the district court to consider the evidence presented by

the government on motion for reconsideration, it might have avoided

an unnecessary decision of a constitutional question, see

v. IVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). If

the Court grants certiorari, the issue of whether the court of

appeals should have remanded for further factfinding to determine

if petitioner in fact received warnings before making his

statements would be fairly included in the question presented.

OES

39

items to be seized. See Coolidge v. New Hampshire, 403 U.S. 443,

467 (1971). The courts of appeals generally agree that "(t]he test

for the necessary particularity is a pragmatic one." United States

v. Torch, 609 F.2d 1088, 1090 (4th Cir. 1979) (internal quotation

marks omitted), cert. denied, 446 U.S. 957 (1980) .*°

The court correctly upheld the search warrant in this case.

The warrant's description of "evidence of the crime of bank

robbery" was adequate because bank robbery is a specific and

relatively narrow crime that "tends to generate quite distinctive

evidence, e€.g., guns, masks, bait money, dye-stained bills and

clothes, carrying bags." Pet. App. 18a. Such evidence is readily

recognizable to trained officers and the warrant thus sufficiently

"confine[d] the executing officers' discretion." United States v.

Fawole, 785 F.2d 1141, 1144 (4th Cir. 1986). The courts of appeals

have repeatedly upheld comparable warrants. See, e.g., United

States v. George, 975 F.2d 72, 76 (2d Cir. 1992) ("a specific

illegal activity") (citing cases); United States v. Ladd, 704 F.2d

134, 136 (4th Cir. 1983) ("the smuggling, packing, distribution and

use of controlled substances") .**

25 See also, e.g., United States v , 977 F.2d 1425, 1432

(11th Cir. 1992), cert. denied, 507 U. S. 1052 (1993); In re Search

, 905 F.2d 1367, 1374 (10th Cir. 1990); United

a 826 F.2d 619, 631 (7th Cir.), cert. denied, 484

States

U.S. 958 (1987); United States v. Davis, 542 F.2d 743, 745 (8th

Cir.), cert. denied, 429 U.S. 1004 (1976).

76 There is no merit to petitioner's reliance (Pet. 18-19) on

v. , 21 F.3d 1030 (10th Cir.), cert. denied,

513 U.S. 891 (1994), and United States v. Buck, 813 F.2d 588 (2d

Cir.), cert. denied, 484 U.S. 857 (1987). In , the court

upheld a warrant that authorized a search for four specified items

(continued...)

40 ’ 41

\

In any event, the court of appeals also correctly determined | SETH P. WAXMAN

| Solicitor General

i ied i ood faith on the warrant. See |

that the officers relied ing a United s os eee

States v. Leon, 468 U.S. 897, 922 (1984). The warrant provided the Assistant Attorney General

officers with some guidance as to the items to be seized, and the MICHAEL R. DREEBEN

Deputy Solicitor General

in th "was familiar not only with the specifics of

lead agent in the case "w y pe | oun 0 in

the bank robbery in question," but also “with the type of evidence LISA S. BLATT

| Assistants to the Solicitor General

to look for." Pet. - 19a. The court of a als' unanimous |

~~ -_ | NOVEMBER 1999

conclusion on that point is consistent with the decisions of the

other courts of appeals.”’ Further review of the search warrant

issue is not warranted.”

ent

CONCLUSION

The petition for a writ of certiorari should be granted as to

the admissibility of petitioner's statements and denied as to the

7 re wR

admissibility of the items seized in the warrant-authorized search. '

Respectfully submitted.

JANET RENO

2€( | .continued)

and “other instrumentalities and fruits of the crime of armed

-carjacking." 21 F.3d at 1032, 1033-1034. In Buck, the warrant did

not even specify the particular crime or crimes under

investigation, instead referring generally to the criminal incident

orally described by the police officer. Moreover, Buck reversed

the district court's order of suppression, finding (as did the

court of appeals in this case) that the officers reasonably relied

in good faith on the warrant. See Buck, 813 F.2d at 592-593.

77 See, e.g., Robertson, 21 F.3d at 1034; Buck, 813 F.2d at

592-593.

*® Although petitioner claims (Pet. 20-21) that Agent Lawlor

misled the magistrate judge who issued the search warrant, that

factbound assertion was unanimously rejected by the court of

appeals. Pet. App. 20a n.6.

la

APPENDIX

Section 3501 of Title 18 provides as follows:

(a) In any criminal prosecution brought by the United

States or by the District of Columbia, a confession, as

defined in subsection (e) hereof, shall be admissible in

evidence if it is voluntarily given. Before such confession

is received in evidence, the trial judge shall, out of the

presence of the jury, determine any issue as to

voluntariness. If the trial judge determines that the

confession was voluntarily made it shall be admitted in

evidence and the trial judge shall permit the jury to hear

relevant evidence on the issue of voluntariness and shall

instruct the jury to give such weight to the confession as

the jury feels it deserves under all the circumstances.

(b) The trial judge in determining the issue of

voluntariness shall take into consideration all the

circumstances surrounding the giving of the confession,

including (1) the time elapsing between arrest and

arraignment of the defendant making the confession, if it

was made after arrest and before arraignment, (2) whether

such defendant knew the nature of the offense with which he

was charged or of which he was suspected at the time o

making the confession, (3) whether or not such defendant was

advised or knew that he was not required to make any

statement and that any such statement could be used against

him, (4) whether or not such defendant had been advised

prior to questioning of his right to the assistance of

counsel; and (5) whether or not such defendant was without

the assistance of counsel when questioned and when giving

such confession.

The presence or absence of- any of the abovementioned

factors to be taken into consideration by the judge need not

be conclusive on the issue of voluntariness of the

confession.

(c) In any criminal prosecution by the United States or

by the District of Columbia, a confession made or given by a

person who is a defendant therein, while such person was

under arrest or other detention in the custody of any law-

enforcement officer or law-enforcement agency, shall not be

inadmissible solely because of delay in bringing such person

before a magistrate or other official empowered to commit

persons charged with offenses against the laws of the United

States or of the District of Columbia if such confession is

found by the trial judge to have been made voluntarily and

if the weight to be given the confession is left to the jury

and if such confession was made or given by such person

within six hours immediately following his arrest or other

2a

detention: Provided, That the time limitation contained in

this subsection shall not apply in any case in which the

delay in bringing such person before such magistrate or

other official beyond such six-hour period is found by the

trial judge to be reasonable considering the means of

transportation and the distance to be traveled to the

nearest available such magistrate or other officer.

(da) Nothing contained in this section shall bar the

admission in evidence of any confession made or given

voluntarily by any person to any other person without

interrogation by anyone, or at any time at which the person

who made or gave such confession was not under arrest or

other detention.

(e) As used in this section, the term "confession"

means any confession of guilt of any criminal offense or any

self-incriminating statement made or given orally or in

writing.

IN THE SUPREME COURT OF THE UNITED STATES

RECEIVED

SUPREME COURT, U.S.

NO. 99-5525 POLICE DEPARTMENT

NOV O71 1999

A.M. P.M.

CHARLES THOMAS DICKERSON, PETITIONER8)9)10)11)12; 1)2 1516

4)

v. \9?

UNITED STATES OF AMERICA Nal

CERTIFICATE OF SERVICE

It is hereby certified that all parties required to be

served have been served with copies of the BRIEF FOR THE UNITED

STATES, by First Class Mail, postage prepaid, on this 1° day of

November, 1999.

James W. Hundley

The Mosby Professional Bldg.

10560 Main Street

Suite 314

Fairfax, VA 22030

Paul D. Kamenar

Washington Legal Foundation

2009 Massachusetts Ave., N.W.

Washington, D.C. 20036

Solicitor General

Counsel of Record

November 1, 1999

lc ll OT