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In the simplest cases involving the exclusion of illegally obtained evidence, the item the defense is trying to suppress, such as drugs found in the search of a suspect’s pocket, is “direct,” or “primary,” in its relationship to the police action. Thus, if it is determined that the police have acted unlawfully, it is clear that the consequences must be exclusion of the evidence at the defendant’s trial. Yet many times, the evidence the police have discovered is “derivative,” or “secondary,” in character. For example, an illegal search may turn up a key to an airport locker where the proceeds of a bank robbery are being kept. Or a coerced confession may reveal the place where the suspect hid the murder weapon. Or an illegal tap of the defendant’s phone may reveal the identity and whereabouts of a person willing to testify against the defendant. In such cases, it is necessary to determine whether the derivative evidence is fatally “tainted” by the initial or primary government illegality. To use the phrase coined by Justice Felix Frankfurter in a 1939 case, in these instances the question presented is whether the challenged evidence is the “fruit of the poisonous tree.” Although the fruit of the poisonous tree rule has limits and some exceptions, it is an important doctrine. By prohibiting the indirect or derivative use of the products of police misconduct, as well as the direct use, the doctrine helps assure that government officials who violate the law are not put in a better position than those who obey it. However, there is ample reason to fear (or, depending upon one’s viewpoint, to rejoice) that the fruits doctrine may not apply at all (or may apply only in very special circumstances) to violations of Miranda v. Arizona, the 1966 centerpiece of the Warren Court’s revolution in American criminal procedure. The Supreme Court is expected to resolve the question finally and authoritatively during its term that began earlier this month. POISON FRUIT PROBLEMS The high court will review two cases that have been decided in favor of the defendant. One case grew out of the prosecution of Samuel Patane for being a convicted felon in possession of a firearm. Without administering a complete set of Miranda warnings, a detective questioned Patane about the location of a Glock pistol he was supposed to own. The defendant responded that the weapon was on a shelf in his bedroom. This admission led almost immediately to the seizure of the weapon where the defendant said it was. The prosecution conceded that Patane’s admission in response to the questioning was inadmissible under Miranda, but argued that the physical fruit of the Miranda violation — the Glock pistol itself — should be admitted. A unanimous panel of the 10th Circuit disagreed, concluding that “Miranda’s deterrent purpose would not be vindicated meaningfully by suppression only of Patane’s statement.” The other case the Supreme Court will consider during its new term is a Missouri case — the prosecution of Patricia Seibert for murder. When she was taken to the “interview room” (which is what the police like to call the rooms where they interrogate people), Seibert was subjected to what might be called a two-stage interrogation. During the first stage, which lasted at least 30 minutes, the officer who did the questioning deliberately failed to give her the Miranda warnings. She made several incriminating statements. After a 20-minute break, the officer resumed the questioning. This time he did administer the Miranda warnings. The defendant signed a waiver form. During the second stage, the officer reminded the defendant of the statements she had made before the 20-minute break. Thus, he was able to link together the unwarned questioning during the first stage with the warned questioning during the second. As hoped and expected, the defendant made more incriminating statements. In an unusual display of candor, the interrogating officer testified that — as a result of the “interrogation training” he had received at an institute — he had made a conscious decision to withhold the Miranda warnings during the first session in order to get the defendant to make incriminating statements during the later session. Evidently the officer was counting on the fact that the incriminating statements made earlier (and his reminding her that she had made these statements earlier), would override the impact of the Miranda warnings given later. The trial court suppressed only the unwarned portion of the interrogation, and Seibert was convicted of second-degree murder. A 4-3 majority of the Missouri Supreme Court reversed, ruling that the statements made in the warned portion of the interrogation should have been excluded as well. “Were police able to use this ‘end run’ around Miranda to secure the all-important ‘breakthrough’ admission during the first stage of the interrogation,” observed the majority, “the requirement of a warning would be meaningless.” OVERRULING MIRANDA? If the Supreme Court reverses the 10th Circuit ruling, Miranda will have suffered a heavy blow. If the high court overturns the Missouri decision as well, one of the most famous cases in American legal history — a case that was “reaffirmed” only three years ago — will, as a practical matter, have been overruled. The key precedent, one that the government will be reading expansively and defense lawyers will be trying hard to minimize, is a 1985 case called Oregon v. Elstad. In that case, two police officers went to the house of an 18-year-old burglary suspect and, without administering the Miranda warnings, asked him about his involvement in the burglary. The defendant replied, “Yes, I was there.” About an hour later, after he had been taken to the sheriff’s office, the defendant was advised of his Miranda rights for the first time. He waived his rights and gave the police a statement detailing his participation in the burglary. The Oregon Court of Appeals suppressed the statement made at the sheriff’s office as well as the one the defendant made in his own home. The U.S. Supreme Court reversed. At certain places in its opinion the Court seemed to say — it certainly could plausibly be read as saying — that because a violation of Miranda is not a violation of a real constitutional right (but only a rule of evidence designed to implement the privilege against self-incrimination), it is not entitled to, or worthy of, the “fruit of the poisonous tree” doctrine. Thus, unlike evidence obtained as the result of an unreasonable search or a coerced confession (which are real constitutional violations), secondary evidence derived from a Miranda violation need not, and should not, be suppressed as the tainted fruit. Elstad was one of the post-Warren Court cases that encouraged critics of Miranda to believe that, some day, the new Court would overrule that much-maligned case. But that day never came. Instead, three years ago, in Dickerson v. United States, the Court struck down a federal statute purporting to abolish Miranda because “Congress may not legislatively supersede our decisions interpreting and applying the Constitution.” What about Oregon v. Elstad? Oddly, the Court had nothing negative to say about it. If, as appears to be the case, Dickerson repudiated the premises on which Elstad and other Miranda-debilitating decisions are based, why didn’t the Court overrule Elstad or explain how Elstad can be reconciled with the view that Miranda is a constitutional decision? Probably because all the qualifications and exceptions to Miranda are going to remain in place. There appears to be a strong consensus among criminal procedure professors (one that I share) that what Dickerson reaffirmed was not the Miranda doctrine that burst on the scene in 1966, but Miranda with all the exceptions it has acquired since 1966 “frozen in time.” If the consensus about the meaning of Dickerson is well-founded, it would be unwise to launch a frontal assault on Elstad. But that is no reason to extend Elstad beyond its facts. Elstad does contain some sweeping language indicating that the Court is stripping, or prepared to strip, remedies for Miranda violations of the “fruits” doctrine entirely. But Elstad may plausibly be read more narrowly than that. At one point, the Elstad majority seemed to cast its holding in terms of a suspect’s freedom to decide his own course of action: “We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” In short, as Justice William Brennan Jr. observed in his dissenting opinion, the Elstad majority relied in considerable part on “individual ‘volition’ as an insulating factor in successive confession cases” — a factor “altogether missing in the context of inanimate evidence [such as a Glock pistol].” Unfortunately, there is a good chance that this attempt to distinguish Elstad may not succeed. The prospects for the defendant in Seibert are brighter because the Miranda violation was so flagrant. The failure to administer the Miranda warnings to Elstad the first time the police talked to him seems to have been inadvertent. The Miranda violation in Seibert, on the other hand, was quite deliberate. Indeed, the officer who withheld the Miranda warnings testified that he had been trained to use these tactics in order to get an admission of guilt. REMEMBERING THE PURPOSE Nietzsche once said that the commonest stupidity consists in forgetting what one is trying to do. What was the Miranda Court trying to do? Take away the police’s incentive to exploit people’s anxiety, confusion, and ignorance by implying that the police had the right to an answer and that suspects better answer or else matters will become so much the worse for them. How can we possibly hope to achieve Miranda’s objective when we prohibit only the incriminating statements obtained in violation of that case, but permit the use of everything these statements bring to light? For the reasons I have advanced, I believe that the Supreme Court ought to affirm both Patane and Seibert. But the need to exclude the derivative evidence in Seibert is especially compelling. For there the officer violated Miranda — as he was trained to do — for the very purpose of obtaining derivative evidence. If the Court rules that the second confession in Seibert is admissible, we can be sure that police training instructors will call the decision to the attention of their students. Indeed, as the testimony of the interrogating officer in Seibert itself demonstrates, the police are already being instructed in how to exploit the loopholes provided by current Miranda law. Missouri police are not alone. Five years ago, lawyers seeking to prohibit officers in two California police departments from questioning custodial suspects after they asserted their rights came upon a police training videotape on which a deputy district attorney told California police officers: “The Miranda exclusionary rule is limited to the defendant’s own statement out of his mouth. . . . It doesn’t have a fruit of the poisonous tree theory attached to it. . . . [When we question someone who has invoked his Miranda rights] all we lose is the statement taken in violation of Miranda. We do not lose [anything] that resulted from that.” The California deputy district attorney could turn out to be right. If so, we should simply give Miranda a respectful burial. Yale Kamisar is a professor of law at both the University of Michigan and University of San Diego law schools. He is author of Police Interrogation and Confessions (1980). He can be reached at [email protected]. A version of this article previously ran in The American Lawyer .

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