Weighing Poison Fruit

In the simplest cases involving the exclusion of illegally obtained evidence, the items the defense is trying to suppress, such as drugs found during the search of a suspect’s pocket, are direct, or primary, in their relationship to the police action. Thus, if the police have acted unlawfully, the evidence must be excluded from trial. Many times, however, evidence 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 a suspect hid a murder weapon. Or an illegal tap of the defendant’s phone may reveal the 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 U.S. Supreme Court 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.” The Court recognized long ago, however, that not all evidence was the fruit of the poisonous tree simply because it was discovered due to the illegal action of the police. Thus, merely establishing a logical connection between a police violation of the law and the subsequent acquisition of incriminating evidence does not automatically lead to the exclusion of the evidence. Depending on the situation, the need to condemn or to deter police transgressions may reach the point of diminishing returns — i.e., the exclusionary rule may impose greater costs on the legitimate demands of law enforcement than can be justified by the rule’s purposes. Although the fruit of the poisonous tree doctrine has limits, it is important. By prohibiting indirect or derivative use of the results of police misconduct, as well as direct use, the doctrine helps assure that officials who violate the law are not in a better position than those who obey it. Absent a fruits doctrine, law enforcement officials would be greatly tempted to resort to methods inconsistent with, and offensive to, a free society. There is ample reason, however, to fear (or, depending upon one’s viewpoint, to rejoice) that the fruits doctrine may not apply at all (or apply only in very special circumstances) to violations of Miranda, the 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 2003-04 term, which begins this month. 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 Patane 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. The 10th U.S. Circuit Court of Appeals unanimously disagreed, concluding that “ Miranda‘s deterrent purpose would not be vindicated meaningfully by suppression only of Patane’s statement.” During its new term, the Supreme Court will also consider a Missouri case — the prosecution of Patricia Seibert for murder. When Seibert was taken to an “interview room” (which is what the police like to call the rooms where they interrogate people), she 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. Seibert 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, Seibert made more incriminating statements. In an unusual display of candor, the interrogating officer testified that — as a result of the 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. 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.” 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 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 suspect and, without administering Miranda warnings, asked him about his involvement in a 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 first advised of his Miranda rights. 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 Supreme Court reversed. The Oregon court, pointed out justice Sandra Day O’Connor for a 6-3 majority, had misconstrued protections afforded by Miranda by assuming that “a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right, so that evidence uncovered following an unwarned statement must be suppressed as ‘fruit of the poisonous tree.’” At one point she described a person whose Miranda rights had been violated, but whose statements had not been actually coerced, as someone “who has suffered no identifiable constitutional wrong.” The Elstad 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 at least explain how it can be reconciled with the view that Miranda is a constitutional decision? Probably because all the qualifications and exceptions to Miranda imposed on it before its constitutional status was clarified are going to remain in place. There appears to be a strong consensus among criminal procedure professors that the majority opinion in Dickerson was a compromise opinion designed to obtain the largest majority possible on the narrow questions of Miranda‘s continued vitality. There also seems to be a consensus (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. That case does contain some sweeping language indicating that the Court is stripping, or prepared to strip, remedies for Miranda violations of the fruits doctrine. 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 Supreme Court justice William Brennan 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].” This attempt to distinguish Elstad may not succeed. It certainly has not persuaded the many lower courts that have allowed the government to use physical evidence derived from Miranda violations. (But few lower courts are enamored of Miranda.) The Court is more likely to affirm the Missouri case, Seibert, than to agree with the 10th Circuit that the Glock pistol should be excluded. Although Seibert is a successive confession case like Elstad, it is different in an important respect — the gravity of the Miranda violation. (Courts are much more inclined to apply the fruits doctrine when the underlying illegality is purposeful or 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. In fact, the officer who withheld the Miranda warnings admitted that he did so purposely. Indeed, he testified that he had been trained to use these tactics in order to get an admission of guilt. Talk about fruits and purging the primary taint is useful, but sometimes it obfuscates the relevant question — whether admitting secondary evidence will significantly encourage police misconduct in the future. Nietzsche once said that the commonest stupidity consists in forgetting what one is trying to do. What was the Miranda court trying to do? Was it to 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 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 propagate? 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. A distinct possibility exists that the Supreme Court will disagree with me, and admit the evidence in both the Missouri and 10th Circuit cases. It should not be overlooked that three members of the seven-judge Missouri Supreme Court dissented in Seibert, insisting that, according to Elstad, the traditional fruits doctrine does not apply to unwarned questioning “so long as the initial unwarned statement is not actually coerced.” (One federal court of appeals recently reached the same conclusion on similar facts.) If the Court agrees with the Seibert dissenters, 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 physical evidence that resulted from that. We do not lose the testimony of other witnesses that we learned about only by violating his Miranda invocation.” The California deputy district attorney could turn out to be right. The Supreme Court could make it clear sometime during its new term that Miranda violations have no fruits doctrine — even when police officers deliberately violate Miranda pursuant to the training that instructors like the California deputy district attorney give them. 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.” E-mail: [email protected]