# Opposition Brief — Dickerson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 428

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0386%3A03. Public record. Not legal advice.