Amicus Curiae Brief — United States v. Patane

No. 02-1183

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

VS.

SAMUEL FRANCIS PATANE,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

QUESTIONS PRESENTED

Whether a failure to give a suspect the warnings prescribed

by Miranda v. Arizona, 384 U. S. 436 (1966), requires the

suppression of physical evidence derived from the suspect's

unwarned but voluntary statement.

TABLE OF CONTENTS

Question presented .... 2.6.6.6. cece eee eee eee eens i

Table of auteortbes ow ww cece cece cece eeeeces iv

Interest of amicus curiae ... 6.6.66. 6c cee eens l

Summary of facts and case ..... 6.6.66 eee eee eee eens 2

Summary of argument .... 2... 6... eee ee ee eee eens 3

| ce 3

I

There may not have been a Miranda violation in

Ne ce esebesaceteteesccecece 3

II

Dickerson reaffirmed this Court’s Miranda jurisprudence in

its entirety, including Tucker and Elstad ...........-- 6

Ill

The Miranda rule is a device for allocating the risk of

uncertainty that is doubtful even in its core area of

operation, and it should not be extended anywhere

outside the core ... 2.6... cece eee eee ee eeeee 10

A. Miranda as risk management .......----++++: 10

B. The high price of conclusive presumptions .... . 14

C. The subtle balance ........ 6-66 - cece ee eee 17

D. Tucker, Elstad, and “fruit” ...... 6.66.65 sees 19

Cente . gw ccc cccccccccccccccccccecescsscese 21

(iii)

iv

TABLE OF AUTHORITIES

Cases

Arizona v. Roberson, 486 U. S. 675, 100 L. Ed. 2d 704,

BOB BS. Ca. BOGS CIDER) . wc cccccccccccccsccccscces 19

Berkemer v. McCarty, 468 U. S. 420, 82 L. Ed. 2d 317,

106 B. Ca. SITS KIDS) 2. ccccccccccccccccccccess 18

‘California v. Hodari D., 499 U. S. 621, 113 L. Ed. 2d 690,

092 BS. Ce. ISAT CIDP) 2. cc ccccscccccccccsccccecs 3

California v. Prysock, 453 U. S. 355, 69 L. Ed. 2d 696,

101 S. Ct. 2806 (19B1) .. ccc cece rc cecececceees 5

Carella v. California, 491 U. S. 263, 105 L. Ed. 2d 218,

1GD BS. Ca. BID (IGE) 2 cc cccccccccccscccccsccess 16

Chavez v. Martinez, 538 U.S. ___ (No. 01-1444,

May 27, 2003) .......cccececcceecccecvenes 8, 9, 10

Coleman v. Thompson, 501 U. S. 722, 115 L. Ed. 2d 640,

111 S. Ct. 2546 (1991) 0. cee ee cc eee ececeeeees 15

Colorado v. Spring, 479 U. S. 564, 93 L. Ed. 2d 954,

107 S. Ct. 851 (1987) .. 2... eee ee eee ee 4

Connecticut v. Barrett, 479 U. S. 523, 93 L. Ed. 2d 920,

107 S. Ct. 2B (1GST) .. weer cece ccc cceeccveces 9

Dickerson v. United States, 530 U. S. 428, 147 L. Ed. 2d 405,

120 S. Ct. 2326 (2000) ........ 6, 7, 8, 11, 12, 13, 14, 17

Dupont v. United States, 259 A. 2d 355 (D. C. 1969) ..... 5

Edwards v. Arizona, 451 U. S. 477, 68 L. Ed. 2d 378,

101 S. Ce. BBO (IGS) . 0. cece cc cccccvvcccceces 19

Grutter v. Bollinger, 539 U.S.__ (No. 02-241,

June 23, 2003) «0... - 0s eee eect e eee e eee e eee: 8

Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1,

Sh ee EE »scccescteduundedeanseeues 16, 17

Illinois v. Perkins, 496 U. S. 292, 110 L. Ed. 2d 243,

fe ee eee 18

Illinois v. Wardlow, 528 U. S. 119, 145 L. Ed. 2d 570,

i 6.6 cccicecacuncudneunase a se

In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

es SEE octavccuvecs deewessaneesas ee 11

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

et es CE beececdecensesdeucuesseieees 4

Marks v. United States, 430 U. S. 188, 51 L. Ed. 2d 260,

See SEED ctbbdecdsnocesddseuceceesesas &

McNeil v. Wisconsin, 501 U. S. 171, 115 L. Ed. 2d 158,

fF eel eS err er 19

Michigan v. Mosley, 423 U. S. 96, 46 L. Ed. 2d 313,

SE nk cchuineedcusecenauiudneas 18, 19

Michigan v. Tucker, 417 U. S. 433, 41 L. Ed. 2d 182,

)} + ®. f),.. Fee 4, 6, 16, 17, 18, 19, 20

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

6S. Ce. 1602 CISES) .. ccc ccccccces 2, 3, 5, 12, 14, 16

Missouri v. Seibert, No. 02-1371 ................5005- 4

Moran v. Burbine, 475 U. S. 412, 89 L. Ed. 2d 410,

Ph PD +6¢neebendeceeeseesases 5,17

New York v. Quarles, 467 U. S. 649, 81 L. Ed. 2d 550,

a Ge AED 6 Sh osnnceesvecevecesonenes 18

Nichols v. United States, 511 U. S. 738, 128 L. Ed. 2d 745,

Se Gd, SE cccvestesenshdsecbekeeennns s

vi

Oregon v. Elstad, 470 U. S. 298, 84 L. Ed. 2d 222,

105 S. Ct. 1285 (1985) .......... 4, 6, 11, 14, 15, 16, 20

Oregon v. Hass, 420 U. S. 714, 43 L. Ed. 2d 570,

BEE Ch, BERD GISGE hv cccccecccccccssccovees 16, 18

Rhode Island v. Innis, 446 U. S. 291, 64 L. Ed. 2d 297,

16D BS. Ce. 1GBZ CIGD) 2. wen vccccccccccccccccccces 6

Rufo v. Simpson, 86 Cal. App. 4th 573,

103 Cal. Rptr. 2d 492 (2001) ..... 6... ee eee ee eee 11

Sandstrom v. Montana, 442 U. S. 510, 61 L. Ed. 2d 39,

SDD. Ca. DOGO CIGD oc ccccccscccccccccvcccccces 16

State v. Perez, 157 N. W. 2d 162 (Neb. 1968) ........... 5

State v. Thomas, 553 P. 2d 1357 (Wash. App. 1976) ..... 5

State v. Walden, 336 N. W. 2d 629 (N. D. 1983) ........ 5

State v. Wilson, 268 N. E. 2d 814 (Ohio App. 1971) ..... 5

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

169 S. Ce. OGD CIDGD) .. wc ccccccccccccccccccccces 4

Texas v. Cobb, 532 U. S. 162, 149 L. Ed. 2d 321,

121 S. Ce. 1393S CAOO1) 2. cc cccvcccccccccecccece 19

United States v. Dickerson, 166 F. 3d 667 (CA4 1999) ... 7

United States v. Patane, 304 F. 3d 1013

(CA10 2002) .. 0. cece cece cece cccceces 2, 3, 6, 8, 20

Withrow v. Williams, 507 U. S. 680, 123 L. Ed. 2d 407,

113 S. Ct. 1745 (1993) .. 0.2... cece ee ee eee 12, 13, 14

United States Constitution

U. BS. Comat. Ast. 19, 3 0... cc cccccccccccescecces 7, 13

Vil

United States Statute

es Gl Sie SEs on 60c0nseeeesnncedensesaeved 2

State Statute

eR | errr TT TT eer rte 12

Treatises

4 W. Blackstone, Commentaries (Ist ed. 1769)......... 11

2 W. LaFave, J. Israel, & N. King, Criminal Procedure

Ss DEEs édeadeeehansenucesssensscenceudens 5

J. Story, Commentaries on the Constitution of the United

States (abridged ed. 1833) (reprint 1987) .......... 7,13

Miscellaneous

P. Cassell, How Many Criminals Has Miranda Set Free?,

Wall Street Journal, Mar. 1,1995 ................. 13

Cassell & Fowles, Handcuffing the Cops? A Thirty-Year

Perspective on Miranda’s Harmful Effects on Law-

Enforcement, 50 Stan. L. Rev. 1055 (1998) .......... 17

H. Friendly, Benchmarks (1967) .................0-. 16

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

VS.

SAMUEL FRANCIS PATANE,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a

nonprofit corporation organized to participate in litigation

relating to the criminal justice system as it affects the public

interest. CJLF seeks to bring the constitutional protections of

the accused into balance with the rights of the victim and of

society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

The present case involves the suppression of evidence of a

crime which is indisputably reliable, for reasons involving no

actual violation of constitutional rights and of dubious value in

safeguarding constitutional rights. The cost of suppression in

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

a case such as this vastly outweighs the benefits, and suppres-

sion is contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

The relevant facts, as stated in the Court of Appeals’

opinion, can be briefly stated. Colorado Springs police arrested

defendant Samuel Patane for violation of a harassment restrain-

ing order on June 6, 2001, three days after his release from the

county jail. United States v. Patane, 304 F. 3d 1013, 1014-

1015 (CA10 2002). They had information that Patane was a

convicted felon and that he possessed a Glock .40 caliber pistol.

“Detective Benner began advising Patane of his Miranda rights,

but only got as far as the right to silence when Patane said that

he knew his rights. No further Miranda warnings were given,

a fact which the Government concedes on appeal resulted in a

Miranda violation.” /d., at 1015.’ Upon questioning about the

gun, Patane told the officers it was in his bedroom and gave

them permission to retrieve it. [bid.’

Patane was indicted in federal court for possession of a

firearm by a convicted felon in violation of 18 U. S. C.

§ 922(g)(1). The District Court ordered that the gun be sup-

pressed as evidence, on the ground that the police did not have

probable cause to arrest Patane. /d., at 1014. The Court of

Appeals concluded that the police did have probable cause, but

it nonetheless affirmed the suppression order on the theory that

the gun was the “fruit” of the Miranda violation. /bid.

2. Miranda v. Arizona, 384 U. S. 436 (1966). Amicus CJLF does not

believe that this concession was correct. See Part I, infra.

3. Defendant disputes that he gave permission. See Brief in Opposition 5,

n. |.

SUMMARY OF ARGUMENT

On the facts of this case, it is doubtful whether a violation

of the Miranda rule occurred. This Court has not ruled on the

question, and other courts are divided. The issue should be

expressly reserved, to be decided in a case where it is contested.

The split of authority on the point, however, is relevant in that

it shows that the police in this case acted in good faith and that

the “bright-line” rule of Miranda is not as bright as advertised.

Dickerson v. United States affirmed the Miranda body of

jurisprudence in its entirety, including the exceptions and

limitations of the rule, and specifically including Michigan v.

Tucker and Oregon v. Elstad.

Miranda is a rule developed to manage the risk that the _

inquiry into voluntariness of a statement might be decided

incorrectly. Its conclusive presumption is doubtful even in its

core area of operation and should not be extended beyond the

core. The same balance of factors that led to admission of the

evidence in Tucker and Elstad is present in this case, and it

should produce the same result.

ARGUMENT =

I. There may not have been a Miranda violation

in this case.

The District Court in this case held that the rule of Miranda

v. Arizona, 384 U. S. 436 (1966) was violated when the police

failed to read Patane the complete warnings, despite his

spontaneous assertion that he already knew his rights. See

United States v. Patane, 304 F. 3d 1013, 1018 (CA10 2002).

The Government did not challenge this holding in the Court of

Appeals, see ibid., or in its petition for certiorari. See Pet. for

Cert. i. Under these circumstances, this Court will not normally

decide the correctness of such a holding. See, e.g., California

v. Hodari D., 499 U.S. 621, 623, n. 1 (1991). Although the

Court does on occasion consider issues raised only by amici,

see, e.g., Mapp v. Ohio, 367 U.S. 643, 646, n. 3 (1961) (Fourth

Amendment raised only by amicus); Teague v. Lane, 489 U.S.

288, 300 (1989) (plurality opinion) (retroactivity), the present

case is more like Hodari D. than Teague.

Even so, the debatable nature of the District Court’s finding

of a violation is important for two reasons. First, the opinion in

this case should be explicit that the “violation” is merely

assumed and not decided, as was done in Hodari D. In that

case, the state conceded that the police officer did not have

“reasonable suspicion” for a stop when Hodari fled at the sight

of the officer. By explicitly noting that the point was conceded

rather than decided, the Hodari D. Court kept the issue open for

another case, in which another state chose to contest it. See

Illinois v. Wardlow, 528 U. S. 119 (2000). The present case is

a mirror image of Colorado v. Spring, 479 U. S. 564, 572, n. 4

(1987). In that case, the “fruit” question was conceded, and the

case was decided on the legality of the questioning. In this

case, the “fruit” question is the question presented, while the

alleged Miranda violation should be assumed and expressly not

decided. See also Oregon v. Elstad, 470 U.S. 298, 315 (1985)

(custody conceded and assumed, not decided).

Second, the fact that the propriety of the officers’ actions in

this case was an open question at the time of the arrest, and

indeed remains an open question today, may be significant.

More than once in its Miranda jurisprudence, this Court has

noted the absence of any intentional misconduct on the part of

the investigating officers. See, e.g., Michigan v. Tucker, 417

U. S. 433, 447-448 (1974) (noting questioning occurred before

Miranda), Elstad, 470 U. S., at 309 (characterizing officer’s

belief that suspect was not yet in custody as “error”). The issue

_of intentional noncompliance is presented in another case

presently before the Court, Missouri v. Seibert, No. 02-1371.

The Miranda opinion itself disclaimed any suggestion that

the procedures laid out in it were exclusive, and alternatives

were expressly allowed so long as they were equally effective.

See 384 U. S., at 467. “The purpose of the Miranda warnings

.. . iS to dissipate the compulsion inherent in custodial interro-

gation and, in so doing, guard against abridgment of the

suspect’s Fifth Amendment rights.” Moran v. Burbine, 475

U. S. 412, 425 (1986). An arrestee who interrupts the police

warnings to assert that he knows his rights and that the warn-

ings are not necessary has demonstrated both the knowledge

that he has rights regarding interrogation and the assertiveness

necessary to stand up for his rights. The facts of this case

demonstrate a /ess compulsive atmosphere than the typical case

of Miranda compliance, where the police read rights to a

passive subject and get his signature on a waiver form. If an

arrestee can waive the constitutional rights protected by the

Miranda warning procedure, it would seem very strange that he

cannot waive the warnings themselves, particularly where he ~

does so entirely spontaneously. To hold that there was a

violation in this case would be to create a rule of “talismanic

incantation” of the type this Court rejected long ago. See

California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam).

Courts around the nation are divided on the question of

whether the arrestee’s spontaneous assertion of knowledge of

his rights eliminates the requirement for the police to read

them. See 2 W. LaFave, J. Israel, & N. King, Criminal Proce-

dure § 6.8(a), p. 572 (2d ed. 1999). A number of cases hold that

the assertion does eliminate the warning requirement or,

equivalently, that the arrestee has waived the warning. See,

e.g., State v. Perez, 157 N. W. 2d 162, 164 (Neb. 1968); State

v. Wilson, 268 N. E. 2d 814, 817 (Ohio App. 1971); State v.

Thomas, 553 P. 2d 1357, 1363 (Wash. App. 1976); State v.

Walden, 336 N. W. 2d 629, 632 (N. D. 1983); contra Dupont

v. United States, 259 A. 2d 355, 358-359 (D. C. 1969). While

this split need not and should not be resolved in the present

case, it cannot be denied that the officers’ belief that their

actions complied with the Miranda rule was supported by

substantial authority.

Il. Dickerson reaffirmed this Court’s Miranda

jurisprudence in its entirety, including Tucker and Elstad.

The Supreme Court precedents which come closest to the

present case are Michigan v. Tucker, 417 U. S. 433, 452 (1974)

and Oregon v. Elstad, 470 U. S. 298, 308 (1985). In both of

these cases, this Court held that “fruits” of a statement taken

without complying with the Miranda rule were admissible. The

Court of Appeals in the present case excluded the “fruits”

despite these precedents by two means. First, it held that

Dickerson v. United States, 530 U. S. 428 (2000) had “funda-

mentally altered” the law in this area and “undermined the logic

underlying Tucker and Elstad.” United States v. Patane, 304

F. 3d 1013, 1019 (CA10 2002). Second, the Court of Appeals

read the precedents very narrowly to draw a distinction for this

purpose between physical objects and living witnesses, either

the defendant’s own statement or the identity of another

witness. See id., at 1022. The first of these arguments is

addressed in this part, and the second in the next part.

The Court of Appeals’ thesis that Dickerson “fundamentally

altered” the premises of important precedents is a surreal

reading of that decision. Dickerson is a resounding affirmation

of precedent. The Court made no attempt to defend Miranda

as an initially correct decision, but instead declared that “the

principles of stare decisis weigh heavily against overruling it

now.” 530 U. S., at 443. Dickerson quoted with approval the

statement of Chief Justice Burger, concurring in the judgment

in Rhode Island v. Innis, 446 U. S. 291, 304 (1980) (emphasis

added), “I would neither overrule Miranda, disparage it, nor

extend it at this late date.” Dickerson, supra, at 443. Certainly,

to undermine the limitations on Miranda, including Tucker and

Elstad, would be to extend it. Yet Dickerson expressly rejected

the notion that there was inconsistency between Miranda and

the limiting decisions. “If anything, our subsequent cases have

reduced the impact of Miranda on legitimate law enforcement

while reaffirming the decision’s core ruling that unwarned

statements may not be used as evidence in the prosecution’s

case in chief.” /d., at 443-444. Dickerson does not undermine

any portion of the Miranda body of jurisprudence, but instead

reaffirms it as a coherent whole.

To be sure, the Fourth Circuit in Dickerson did rely on

statements in Tucker and other cases to the effect that Miranda

was a prophylactic rule for its conclusion that Miranda was not

aconstitutional rule. See United States v. Dickerson, 166 F.3d

667, 672 (CA4 1999). This reasoning could be stated as a

syllogism:

No prophylactic rules are constitutional rules.

Miranda is a prophylactic rule.

Therefore, Miranda is not a constitutional rule.

The Court of Appeals in the present case appears to have

assumed that, in rejecting the coaclusion of this syllogism, see —

530 U. S., at 438, the Dickerson Court necessarily rejected the

minor premise. The obvious alternative is that the Court

rejected the major premise. It is possible for a prophylactic rule

to be a constitutional requirement.

The two-witness rule for treason, see U. S. Const., Art. III,

§ 3, is a prophylactic rule of sorts. Certainly it does not create

a substantive right to commit an act of treason which is only

witnessed by one person. Like Miranda, it is a bright-line rule

of evidence that certain evidence will be required for a particu-

lar purpose regardless of how clearly other available evidence

may prove the underlying fact. This rule represents a value

judgment by the Framers that the danger of erroneous convic-

tion of treason on the word of one liar outweighs the need of

the government to obtain convictions in single-witness cases.

See J. Story, Commentaries on the Constitution of the United

States § 943, pp. 671-672 (abridged ed. 1833) (reprint 1987).

Yet this rule is in the Constitution in black and white and not

subject to legislative repeal.

Dickerson reaffirms that the Miranda procedures, or equally

effective alternatives, are required for the product of in-custody

interrogation to be included in the prosecution’s case in chief,

and that this rule is a constitutional mandate. That holding is

consistent with the statements in earlier cases that characterize

Miranda as a prophylactic rule, note that it sweeps more

broadly than the Fifth Amendment itself, and state that the

warnings themselves are not constitutional rights. Specifically

addressing Elstad, Dickerson unmistakably holds that “refusing

to apply the traditional ‘fruits’ doctrine” is not inconsistent with

the constitutional status of Miranda. 530 U. S., at 441.

If that were not clear enough from the face of the Dickerson

opinion, the recent decision in Chavez v. Martinez, 538 U.S.

__ (No. 01-1444, May 27, 2003) eliminated any residual doubt.

Interpretation of this precedent is complicated by the fact that

there is no majority opinion. Even so, we can see from the

separate opinions that Dickerson did not undermine the cases

limiting Miranda, including Tucker and Elstad.

On the Fifth Amendment question, the opinions concurring

in the judgment are those of Justice Thomas and Justice Souter.

We need not answer the often-difficult riddle of which opinion

is “narrower,” see Marks v. United States, 430 U. S. 188, 193

(1977); Nichols v. United States, 511 U. S. 738, 745-746

(1994); Grutter v. Bollinger, 539 U.S. __ (No. 02-241, June

23, 2003) (slip op., at 12-13), because the two are consistent on

this point. Indeed, Part I of Justice Kennedy’s opinion is also

consistent to the extent relevant here.

Justice Thomas’ opinion reaffirms that Miranda is a

prophylactic rule, even though it is @ constitutionally required

prophylactic rule. Chavez (slip OP., at 8, 10). Tucker and

Elstad are cited and relied on as precedent for the same

premises that the Court of Appeals in the present case believed

had been undermined by Dickerson. Compare id. (slip op., at

9), with 304 F. 3d, at 1019. “Rules designed to safeguard a

constitutional right, however, do not extend the scope of the

constitutional right itself, just as violations of traditionally

crafted prophylactic rules do not violate the constitutional rights

of any person.” Chavez (slip op., at 10). From this post-

Dickerson opinion, we see that Miranda’s status as a prophy-

lactic rule remains intact. Asking a question of an arrestee

without reading the Miranda warnings, by itself, is not a

violation of the arrestee’s rights.

Justice Souter’s opinion characterizes the Miranda rule as

“conditioning admissibility on warnings and waivers to

promote intelligent choices and to simplify subsequent inquiry

into voluntariness ....” /d. (slip op., at 2) (Souter, J., concur-

ring in the judgment). This correct, complete, yet brief state-

ment may be the best description of Miranda yet. “Condition-

ing admissibility” designates Miranda as a rule of evidence

rather than a rule of substantive law. The policy reasons given

for the Miranda rule imply that the rule will be limited when

countervailing reasons of policy outweigh the reasons for

extending the rule of exclusion. Justice Souter refers to

Miranda as a “complementary rule,” rather than a prophylactic

rule, id. (slip op., at 3), but this variation on the traditional

terminology would not seem to make any difference. Cf.

Connecticut v. Barrett, 479 U. S. 523, 528 (1987) (“auxiliary

barrier’).

In this view, any extension of Miranda’s “complementary

rule” must be justified by a showing that the extension is

necessary because the existing remedies are insufficient to

protect the core Fifth Amendment privilege. Chavez, supra,

(slip op., at 3) (Souter, J., concurring in the judgment). For the

reasons discussed in Part Ill, infra, Tucker and Elstad are based

on the Court’s judgment that extension beyond exclusion of the

statement itself is not necessary. Nothing in Dickerson is

remotely contrary to that judgment, and hence these cases are

still good law.

Although Justice Kennedy’s opinion is a dissent on the

Fifth Amendment question, it is worth noting that this opinion

is also consistent with the view that Dickerson did not under-

mine the limitations on Miranda established in this Court’s

cases. Dickerson established that Miranda is “a constitutional

requirement.” Chavez, supra (slip op., at 2) (Kennedy, J.,

concurring in part and dissenting in part). That requirement,

10

however. is “a rule of exclusion,” ibid., i.e., a rule of evidence

and not a rule of substantive law. The pre-Dickerson excep-

tions to \firanda’s rule of exclusion are alive and well. /bid.

(citing Harris v. New York, 401 U. S. 222 (1971)). “The

exclusion of unwarned statements, when not within an excep-

tion, is a complete and sufficient remedy.” /bid. (emphasis

added).

The only indication in any of the opinions in Chavez that

Dickerson changed anything in the Miranda body of jurispru-

dence is a statement in footnote 3 of Justice Stevens’ opinion

that “the Court disavowed the ‘prophylactic’ characterization

of Miranda in Dickerson ....” This opinion was not joined by

any other Justice, and the statement is contrary to those in

opinions joined by a majority, as discussed supra.

In short, Chavez confirms that Dickerson did not change the

distinction drawn in prior cases between noncompliance with

Miranda and actual coercion. The main premise of the Court

of Appeals’ thesis is therefore false. The physical “fruit” of the

questioning of Patane can be suppressed only if Tucker and

Elstad can be meaningfully distinguished or if they should be

independently overruled. As we will show in the next part,

those decisions were correct, and the balancing of costs and

benefits that produced those decisions produces the same result

here.

Ill. The Miranda rule is a device for allocating the

risk of uncertainty that is doubtful even in its

core area of operation, and it should not be extended

anywhere outside the core.

A. Miranda As Risk Management.

“In Miranda [v. Arizona, 384 U. S. 436 (1966)}, the Court

noted that reliance on the traditional totality-of-the-circum-

stances test raised a risk of overlooking an involuntary custodial

confession, 384 U. S., at 457, a risk that the Court found

1]

unacceptably great when the confession is offered in the case in

chief to prove guilt.” Dickerson v. United States, 530 U. S.

428, 442 (2000) (emphasis added). This statement captures the

essence of the Miranda rule, whether it be called a “prophylac-

tic rule,” a “complementary rule,” or an “auxiliary barrier.”

Simply taking a statement from an arrestee without reading

warnings is not wrong in itself. The problem is the risk that the

voluntariness inquiry might be answered incorrectly. “A

Miranda violation does not constitute coercion, but rather

affords a bright-line, legal presumption of coercion... .”

Oregon v. Elstad, 470 U.S. 298, 307, n. 1 (1985) (emphasis in

original).

In the artificial atmosphere of law school, students typically

take the facts as given and discuss at length what result should |

follow from those facts. The real world is considerably

messier. Rules of law must be fashioned with the knowledge

that the fact-finding process is fallible. In cases where error in

one direction is thought to cause a greater injustice than error

in the other, rules may be shaped to minimize the probability of

the former error at the cost of multiplying the latter errors. The

prosecution’s heavy burden of proof beyond a reasonable doubt

in criminal cases is expressly premised on the belief “that it is

better that ten guilty persons escape, than that one innocent

suffer.” 4 W. Blackstone, Commentaries 352 (1st ed. 1769);

see also /n re Winship, 397 U. S. 358, 364 (1970). And escape

they do, on a regular basis. See, e.g., Rufo v. Simpson, 86

Cal. App. 4th 573, 103 Cal. Rptr. 2d 492 (2001) (defendant

acquitted of double murders in criminal trial, found in subse-

quent civil trial to have actually committed them).

A second circumstance that may justify a bright-line rule is

when the uncertainty in the evidence could easily have been

avoided by the party on the losing side of the bright line. The

statute of frauds is such a rule. A party who wants to be sure he

can enforce important contracts can simply get them in writing,

but there is no simple way to protect oneself against false

claims of oral contracts. The law protects against the risk of

12

false claims of oral contracts by making them unenforceable for

certain important matters, see, e.g., Cal. Civ. Code § 1624(a),

knowing that the cost will be that some genuine contracts are

not enforced. The cost is acceptable, because people can easily

guard against it.

The bright-line rule of Miranda has elements of both of

these rationales:

“In these cases, we might not find the defendants’ state-

ments to have been involuntary in traditional terms. Our

concern for adequate safeguards to protect precious Fifth

Amendment rights is, of course, not lessened in the slight-

est. In each of the cases, the defendant was thrust into an

unfamiliar atmosphere and run through menacing police

interrogation procedures. The potentiality for compulsion

is forcefully apparent. ... The fact remains that in none of

these cases did the officers undertake to afford appropriate

safeguards at the outset of the interrogation to insure that

the statements were truly the product of free choice.” 384

U. S., at 457 (emphasis added).

The Miranda Court’s concern for the “potentiality of

compulsion” would not be an issue if courts were capable of

infallible determination of actual compulsion. The uncertainty

of that determination is what makes necessary Miranda’s

procedures to “insure” voluntariness. Miranda “concluded that

the coercion inherent in custodial interrogation blurs the line

between voluntary and involuntary statements, and thus

heightens the risk that an individual will not be ‘accorded his

privilege under the Fifth Amendment . . . not to be compelled

to incriminate himself.’ ” Dickerson, 530 U. S., at 435 (empha-

sis added) (quoting Miranda, supra, at 439).

Why is an error in determining voluntariness so much

worse in one direction than the other that it justifies placing

such a heavy thumb on the scales of justice? This is not a

simple question, because the self-incrimination privilege

embodies many values. See Withrow v. Williams, 507 U. S.

13

680, 691-692 (1993). Certainly one of the most important,

though, is the danger that a coerced confession, erroneously

determined to be voluntary, can result in the conviction of an

innocent person.

“Nor does the Fifth Amendment ‘trial right’ protected

by Miranda serve some value necessarily divorced from the

correct ascertainment of guilt. ‘ “[A] system of criminal

law enforcement which comes to depend on the ‘confes-

sion’ will, in the long run, be les$ reliable and more subject

to abuses” than a system relying on independent investiga-

tion.’ Michigan v. Tucker, supra, at 448, n. 23 (quoting

Escobedo v. Illinois, 378 U. S. 478, 488-489 (1964)). By

bracing against ‘the possibility of unreliable statements in

every instance of in-custody interrogation,’ Miranda serves

to guard against ‘the use of unreliable statements at trial.’

Johnson v. New Jersey, 384 U.S. 719, 730 (1966)... .”

Id., at 692.

Concern about the reliability of out-of-court confessions is

similarly evident in the Treason Clause, which accepts only a

“Confession in open Court” as a substitute for the two wit-

nesses. U.S. Const., Art Ill, § 3.

“It has been well remarked, that confessions are the weakest

and most suspicious of all testimony; ever liable to be

obtained by artifice, false hopes, promises of favour, or

menaces; seldom remembered accurately, or reported with

due precision; and incapable, in their nature, of being

disproved by other negative evidence.” J. Story, Commen-

taries on the Constitution of the United States § 943, pp.

671 (abridged ed. 1833) (reprint 1987).

Modern technology may be able to mitigate these concerns.

Video recording of the entire interrogation, including both the

questioner and the suspect, could be an effective alternative,

such as the Miranda doctrine has contemplated from the

beginning. See Dickerson, 530 U. S., at 440; P. Cassell, How

Many Criminals Has Miranda Set Free?, Wall Street Journal,

14

Mar. 1, 1995, p. Al7. Even without alternatives, however, the

balance struck by Miranda must be reconsidered when a

defendant seeks to apply the rule of exclusion to a situation

where the danger of false evidence is not present. Where the

adverse effects of erroneous admission of an involuntary

confession are reduced, the adverse effects of erroneous

exclusion of a voluntary confession have relatively more

weight. See infra, at 17.

The second rationale implicit in the Miranda rule is the

ability of the police to clarify the voluntariness issue by

complying with the Miranda requirements. The passage quoted

above puts the onus on the officers to “undertake to afford

appropriate safeguards... .” The police are in control of the

interrogation, and in most cases they know the Miranda

requirements and are able to comply with them. While Miran-

da compliance does not guarantee that the interrogation will

withstand a voluntariness challenge, the cases where it will not

are “rare.” Dickerson, 530 U. S., at 444 (quoting Berkemer v.

McCarty, 468 U. S. 420, 433, n. 20 (1984)). This rationale

loses some of its force in those situations where the Miranda

line is not as bright as originally advertised. The Withrow

Court acknowledged this problem when it referred to “Miran-

da’s bright-line (or, at least, brighter-line) rules . . . ;

U. S., at 694. Among these dim zones are the unresolved legal

questions, such as the present case, see Part 1, supra, and the

perennially “slippery” definition of “custody.” Oregon v.

Elstad, 470 U. S. 298, 309 (1985); see also Withrow, supra, at

684-685 (state and federal courts disagreed on custody).

B. The High Price of Conclusive Presumptions.

The Miranda rule employs a particularly drastic measure to

minimize the risk of an erroneously admitted involuntary

confession. Justice Harlan called it “heavy-handed and one-

sided.” Miranda, 384 U. S., at 525 (dissent). Miranda creates

a conclusive presumption that any in-custody statement taken

without complying with its procedures is coerced. See With-

—

15

row, 507 U. S., at 712 (O’Connor, J., dissenting). Conclusive

presumptions, also known as per se rules and bright-line rules,

are rarely warranted when considered purely on their logical

merits.

“ ‘Per se rules . . . require the Court to make broad

generalizations .... Cases that do not fit the generaliza-

tions may arise, but a per se rule reflects the judgment that

such cases are not sufficiently common or important to

justify the time and expense necessary to identify them.’

Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36,

50, n. 16 (1977).

“Per se rules should not be applied, however, in

situations where the generalization is incorrect as an

empirical matter; the justification for a conclusive presump-

tion disappears when application of the presumption will

not reach the correct result most of the time.” Coleman v.

Thompson, 501 U. S. 722, 737 (1991).

If the Miranda presumption were evaluated on Coleman's

criterion, it would fail dramatically. “[P]atently voluntary

statements taken in violation of Miranda must be excluded

from the prosecution’s case... .” Elstad, 470 U. S., at 307

(emphasis in original). As the Miranda Court implicitly

recognized, there are many circumstances under which a

suspect can give an unwarned, but still clearly voluntary

custodial confession. In his dissent, Justice White made the

point explicitly.

“Although in the Court’s view in-custody interrogation is

inherently coercive, the Court says that the spontaneous

product of the coercion of arrest and detention is still to be

deemed voluntary. An accused, arrested on probable cause,

may blurt out a confession which will be admissible despite

the fact that he is alone and in custody, without any show-

ing that he had any notion of his right to remain silent or of

the consequences of his admission. Yet, under the Court’s

rule, if the police ask him a single question such as “Do you

16

have anything to say?’ or ‘Did you kill your wife?’ his

response, if there is one, has somehow been compelled,

even if the accused has been clearly warned of his right to

remain silent. Common sense informs us to the contrary.”

Miranda, 384 U. S., at 533-534 (White, J., dissenting).

Judge Henry Friendly’s public response to Miranda

underscored the practical soundness of Justice White’s hypoth-

esis. “[T]he books are full of instances, of which the Court

must have been well aware through petitions for certiorari,

where it is evident that in-custody interrogation did not repre-

sent the exercise of compulsion.” H. Friendly, Benchmarks

272-273 (1967). Next, Judge Friendly lists four then-recent

cases in which there was no question that the custodial interro-

gation produced a voluntary confession. See id., at 273, nn. 33-

36 (citing United States v. Cone, 354 F. 2d 119 (CA2 1965);

United States v. Indiviglio, 352 F.2d 276 (CA2 1965); Evalt v.

United States, 359 F. 2d 53 (CA9 1966); United States v.

D’Allesandro, 361 F. 2d 694, 698 (CA2 1966)). In the years

since Miranda, this Court has often found confessions to be

voluntary even though they were taken contrary to the Miranda

procedures. See, e.g., Elstad, 470 U. S., at 312; Oregon v.

Hass, 420 U.S. 714, 722 (1975); Michigan v. Tucker, 417 U.S.

433, 449 (1974); Harris v. New York, 401 U. S. 222, 224

(1971).

The downside of any conclusive presumption is that it

disables the party disadvantaged by it from proving that the

underlying, presumed fact is not true, regardless of how

compelling a case he may have to disprove that “fact.” Such

presumptions are so inherently unfair that this Court has

completely banned their use against defendants in criminal

cases. See Carella v. California, 491 U.S. 263, 265 (1989)

(per curiam). Yet Miranda construed the Constitution to

require the same kind of presumption that Carella and Sand-

strom v. Montana, 442 U. S. 510 (1979) construed it to

prohibit.

17

“The disadvantage of the Miranda rule is that statements

which may be by no means involuntary, made by a defendant

who is aware of his ‘rights,’ may nonetheless be excluded and

a guilty defendant go free as a result.” Dickerson, 530 U. S., at

444. This is no small disadvantage. For a murderer or rapist

who could have been incapacitated to go back on the street and

prey upon more victims is a horrific cost.

C. The Subtle Balance.

Whether the benefits of Miranda justify the costs even

within the rule’s core area of application was hotly debated in

the Miranda decision itself, with dissenting Justices Harlan and

White making a strong case that they do not. See also Cassell

& Fowles, Handcuffing the Cops? A Thirty-Year Perspective |

on Miranda’s Harmful Effects on Law Enforcement, 50

Stan. L. Rev. 1055 (1998).

Moran v. Burbine, 475 U.S. 412, 426 (1986) referred to the

“subtle balance struck in [the Miranda] decision.” The cases

since Miranda confirm that the costs and benefits are close to

balance in Miranda’s core area. That is why proposals to

extend the Miranda rule to areas where the costs are greater or

the benefits are less have been largely rejected.

Harris v. New York, supra, is the first case in this line.

Relying on a Fourth Amendment precedent, the Court permitted

a statement taken without Miranda warnings to be used for

impeachment. The additional deterrent effect of forbidding

such use was not worth the additional cost of giving the

defendant a license to commit perjury. See 401 U. S., at 225-

226. Michigan v. Tucker, supra, similarly concluded that the

marginal benefit of extending the Miranda exclusionary rule to

a witness (Henderson) identified in the defendant’s statement

was not significant. The principal basis for this assessment was

the fact that the manner of obtaining Tucker’s statement had no

bearing whatsoever on the reliability of Henderson’s testimony.

See 417 U. S., at 448-449. On the other side of the balance, as

always, was “the strong interest under any system of justice of

18

making available to the trier of fact all concededly relevant and

trustworthy evidence which either party seeks to adduce.” /d.,

at 450. The reduced need for an exclusion sanction was

insufficient to outweigh the need for reliable evidence in

Tucker. See id., at 451. Oregon v. Hass, supra, reaffirmed

Harris on similar grounds. 420 U. S., at 722.

New York v. Quarles, 467 U. S. 649 (1984) made an

exception to the Miranda rule for questioning needed to prevent

further harm rather than merely to gather evidence of past harm.

The exception is premised squarely on a weighing of the

opposing dangers. “We conclude that the need for answers to

questions in a situation posing a threat to the public safety

outweighs the need for the prophylactic rule protecting the Fifth

Amendment’s privilege against self-incrimination.”* /d., at

657.

Berkemer v. McCarty, 468 U. S. 420, 437 (1984) declined

to extend the Miranda warning requirement to traffic stops,

even though they do come within Miranda’s description of

custody—* ‘otherwise deprived of his freedom of action in any

significant way.” ” /d., at 435 (emphasis omitted). The

atmosphere of compulsion is considerably less in such a stop,

diminishing the need for warnings. See id., at 437-439. Illinois

v. Perkins, 496 U. S. 292 (1990) reached the same result for

largely the same reason where the questioner is an undercover

agent posing as a fellow prisoner. /d., at 296-297.

The only area where Miranda has been expanded beyond its

original boundaries is the issue of questioning for a different

offense after invocation of rights, and even here the record is

mixed. Michigan v. Mosley, 423 U.S. 96, 104-106 (1975) held

that after an arrestee invokes his right to remain silent, it is

4. Justice O’Connor, concurring in part and dissenting in part, would have

suppressed Quarles’ statement as to where the gun was located, but not

the gun itself, anticipating the question in the present case. See id., at

669 (distinguishing “testimonial aspects of the accused’s custodial

communications” from nontestimonial aspects).

19

perfectly proper to approach him hours later, give new warn-

ings, obtain a waiver, and ask questions about an unrelated

offense. A contrary rule would increase the cost of Miranda

safeguards and “transfer [them] into wholly irrational obstacles

to legitimate police investigative activity... .” Jd.,at 102. Yet

the Court did exactly that in Arizona v. Roberson, 486 U. S.

675, 682-683 (1988), where the only difference was that the

arrestee had asked to have a lawyer before answering questions

rather than refusing to answer questions at all. See id., at 678;

but see id., at 692-693 (Kennedy, J., dissenting) (similarity to

Mosley).

Roberson was an anomaly the day it was decided, extending

Edwards v. Arizona, 451 U. S. 477 (1981) to a situation where

“[t]he problems to which Edwards was addressed are not.

present . . . in any substantial degree.” /d., at 693 (Kennedy, J.,

dissenting). It is even more anomalous since McNeil v.

Wisconsin, 501 U.S. 171, 175 (1991) held, and Texas v. Cobb,

532 U. S. 162, 167 (2001) confirmed, that the analogous Sixth

Amendment rule is “offense specific.” In an appropriate case,

Roberson should be reconsidered. For now, it is sufficient to

note that the successive questioning cases are a singular

exception to the rule. In all other areas, any variation from the

core of Miranda that tips the balance in any degree against

exclusion has resulted in the evidence being admitted.

D. Tucker, Elstad, and “Fruit.”

This brings us back to the starting point—whether the

present case can be meaningfully distinguished from Tucker

and Elstad. In Tucker it was clear, and in the present case and

Elstad it is assumed, that there was “a disregard, albeit an

inadvertent disregard, of the procedural rules . . . established in

Miranda. The question for decision is how sweeping the

judicially imposed consequences of this disregard shall be.”

Tucker, 417 U. S., at 445.

Tucker rests on three premises. “Where the official action

was pursued in complete good faith . . . the deterrence rationale

20

{for exclusion] loses much of its force.” /d., at 447. In Tucker

the “violation” occurred before Miranda. See ibid. In the

present case, it involved a question of law which is unsettled to

this day. See Part I, supra. As noted, supra, at 17, the reliabil-

ity of the evidence was not impaired in Tucker, as it is not in

the present case. Finally, Tucker noted that the defendant’s

own statements were not being introduced in evidence, see id.,

at 449-450, as they are not in this case. The weights on the two

sides of the balance are exactly the same in this case as in

Tucker.

Oregon v. Elstad, supra, rejected a “fruits” claim that was

considerably stronger than the claim in the present case. As

Justice Brennan noted in dissent, the psychological connection

between an initial confession and a subsequent one is substan-

tial, due to the “hopeless feeling of an accused that he has

nothing to lose by repeating his confession, even when the

circumstances that rendered his first confession illegal have

been removed.” 470 U. S., at 325.

The Elstad majority’s rejection of the exclusion sanction is

not based on any special status of subsequent confessions,

because these are the most suspect of all “fruits.” Instead,

Elstad holds that “the Miranda presumption, though irrebut-

table for purposes of the prosecutor’s case in chief, does not

require that the statements and their fruits be discarded as

inherently tainted.” /d., at 307 (emphasis added). E/stad goes

on to say that Tucker’s refusal to import the Fourth Amendment

“fruit of the poisonous tree” doctrine into Miranda “applies

with equal force when the alleged ‘fruit’ of a noncoercive

Miranda violation is neither a witness nor an article of evidence

but the accused’s own voluntary testimony.” /d., at 308

(emphasis added). Equal means equal; equal does not mean

greater. The Court of Appeals in the present case stressed that

Elstad went on to quote a Fourth Amendment case drawing a

distinction between objects and witnesses. See 304 F. 3d, at

1021. This reasoning makes too much of a make-weight

argument in the Elstad opinion. The main reasons given for

21

admitting the “fruit” in Elstad are the absence of actual

compulsion and the reliability of the evidence, tactors which

are at least as strong, if not stronger, when the “fruit” is

physical evidence.

A case is controlling precedent for a later case if the two are

the same in their material facts, and we look to the opinion to

see which facts the court deemed material. See Brief for

Criminal Justice Legal Foundation as Amicus Curiae in Grutter

v. Bollinger, No. 02-241, p. 7. The Elstad opinion does not

deem it material which kind of “fruit” is involved; it considers

them equal for this purpose.

Elstad is controlling precedent. The gun is admissible in

evidence.

CONCLUSION

The decision of the Court of Appeals for the Tenth Circuit

should be reversed.

July, 2003

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation