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Many commentators were surprised three years ago when the Supreme Court reaffirmed Miranda v. Arizona in a 7-2 decision written by Chief Justice William Rehnquist. After all, Rehnquist had been a critic of Miranda throughout his 31 years on the Court. A case that goes before the Court for consideration at its April 18 private conference could give the Court an opportunity to show its colors again on the potency of the Miranda rule, which requires police to warn suspects of their right to remain silent. The case, United States v. Patane, No. 02-1183, is one of dozens the justices will discuss at the conference. Under Miranda, statements made by a defendant in the absence of a warning cannot be admitted at trial. In Patane, the issue is whether physical evidence — in this case a pistol — obtained as a result of an un-Mirandized statement must also be suppressed. The government asserts that the Supreme Court answered the question long ago when it declined in two cases to apply the “fruits of the poisonous tree” doctrine to suppress evidence obtained as a result of an un-Mirandized confession. The cases cited by the government are Michigan v. Tucker, from 1974, and the 1985 ruling Oregon v. Elstad. But both those rulings came before Dickerson v. United States, the 2000 decision authored by Rehnquist that upheld Miranda. The U.S. Court of Appeals for the 10th Circuit decided in Patane that because the Dickerson ruling viewed Miranda as a decision with constitutional dimensions — not just as a prophylactic rule — “ Dickerson undermined the logic underlying Tucker and Elstad.” As a result, to give Miranda the constitutional weight it was accorded in Dickerson, the circuit panel agreed the gun evidence in Patane’s case should be suppressed. “ Miranda‘s deterrent purpose would not be vindicated meaningfully by suppression only of Patane’s statement. We hold that the physical fruits of this violation must be suppressed,” wrote 10th Circuit Judge David Ebel. Samuel Patane was arrested in Colorado Springs in June 2001 for violating a domestic violence restraining order imposed to protect his ex-girlfriend. Officers began to read Patane his Miranda rights, but stopped when he said he knew his rights. Police then asked him whether he owned firearms. Patane revealed he had a Glock pistol. Police seized it and, after learning Patane had prior drug convictions, charged him with violating the federal law against possession of firearms by felons. In its petition to the Supreme Court, the solicitor general’s office notes that the 1st, 3rd, and 4th Circuits have ruled on the same issue in light of Dickerson, and ruled that suppression of physical evidence is not always required. As a result, the government says, a circuit conflict exists “on an important constitutional issue that arises with regularity.” Patane’s lawyer, Assistant Federal Public Defender Jill Wichlens, says in her brief that because the 10th Circuit’s ruling is consistent with Dickerson, it does not warrant review. She also argues that neither Tucker nor Elstad gave the green light to admitting physical evidence obtained through an improper police interview. “The fruit of the poisonous tree doctrine applies to the fruit of a Miranda violation . . . just as the doctrine applies to the fruit of any other constitutional violation,” writes Wichlens. OTHER CASES UP FOR REVIEW • Norfolk Southern Railway Co. v. James N. Kirby PTY Ltd., No. 02-1028. Liability limitations under the Carriage of Goods by Sea Act. • Gaylord Container Corp. v. Garrett Paper Inc., No. 02-1070. Class certification in antitrust cases. • Krilich v. United States, No. 02-915. Enforceability of consent decree under the Clean Water Act. • Andersen v. United States, No. 02-1045. Procedural issues relating to an effort by a tax protest group to keep the Internal Revenue Service from obtaining its membership lists. • Cooper Industries Inc. v. Aviall Services Inc., No. 02-1192. Whether a private party may seek contributions for cleanup costs from other responsible parties under the Comprehensive Environmental Response, Compensation and Liability Act, even if no civil action has been brought against it. • Securities and Exchange Commission v. Edwards, No. 02-1196. Whether an arrangement whereby investors bought pay telephones from a promoter and then leased them back to the promoter’s company in exchange for fixed monthly fees fits the definition of a “security” subject to SEC jurisdiction. • Michigan v. Hutchinson, No. 02-1203. Whether litigants making ineffective assistance claims based on a lawyer’s conflict of interest must show there was an alternate strategy the lawyer should have pursued. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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