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Renewed Challenges Based on Miranda

Jack Ryan

Over the past couple of years courts have seen a renewed number of claims based upon allegations related to violations of the 5th Amendment self-incrimination clause as well as violations of the rule announced in Miranda v. Arizona, 384 U.S. 436 (1966). Two cases decided on June 28th 2004 provide some guidance for law enforcement agencies with respect to the reaches of Miranda, and more specifically how violations of the Miranda rule will impact the prosecution of criminal cases.

Recent challenges brought forth by defendants based on the Miranda rule have been the direct result of the United States Supreme Court decision in Dickerson v. United States 530 U.S. 428 (2000). In Dickerson the United States Attorney General attempted to assert a dormant federal statute that was essentially a legislative attempt to overturn the United States Supreme Court’s decision in Miranda. Prior to the Dickerson decision, the Supreme Court had concluded that Miranda was a “prophylactic rule” created by the Court to enhance the 5th Amendment privilege against self-incrimination. A violation of such a rule would not be a “constitutional violation” and while statements taken in violation of Miranda would not be admissible in the prosecution’s case-in-chief, the statements were admissible for some purposes. The continued validity of these cases was thrown into question by the Court’s holding in Dickerson rejecting the constitutionality of the federal statute by concluding that Miranda was a “constitutional rule.”

Intentional Pre-Miranda


Almost two decades ago in Oregon v. Elstad, 470 U.S. 298 (1985), the United States Supreme Court reviewed a case where an officer unintentionally obtained an admission from a suspect without first having given a suspect his Miranda warnings. Elstad was then taken to the station, given his Miranda warnings and subsequently confessed. Elstad argued that his first statement “let the cat out of the bag” and thus tainted the subsequent Mirandized statement. The Court in Elstad, viewing Miranda as a “prophylactic rule” rejected Elstad’s argument and concluded that the second statement, meeting the requirements of the Miranda rule was admissible in the prosecution’s case. The decision in Elstad led some police trainers to develop a tactic of questioning a suspect pre-Miranda warning to get the cat out of the bag, stop the questioning and give the warnings and then take a Mirandized statement. It is this tactic that was challenged in Missouri v. Seibert, 2004 U.S. LEXIS 4578 (2004).

Seibert is the classic example of the cover-up always being worse than the crime. Mrs. Seibert was a participant in an attempt to cover up a possible child neglect which caused the death of her 12 year old-son. The cover-up resulted in the homicide of another mentally impaired young man. When Mrs. Seibert’s 12 year-old son, afflicted with cerebral palsy, died she became concerned that she may be accused of neglect due to bed sores on her son’s body. Two of Mrs. Seibert’s sons accompanied by two friends concocted a plan to burn the family’s mobile home with the dead boy’s body in it in order to cover-up the potential neglect. Concerned that there may be some issue with the 12 year-old being alone at the time of the fire, the conspirators decided that they should have a second young man, Donald Rector, a mentally impaired teenager, in the mobile home at the time of the fire. Rector was killed in the fire. One of the fire-setters, Seibert’s son Darian was hospitalized after the fire due to burns he sustained.

Five days after the fire, Officers arrested Seibert at the hospital and took her to the police station. The officers questioned Seibert without giving her Miranda warnings. Once she made admissions regarding the death of Rector she was Mirandized. A second statement was then taken where the officer prompted her to make admissions by reminding her of the previous admissions she had made. The officer involved in the questioning candidly acknowledged that he had purposely conducted the pre-Miranda questioning in accordance with training that he had received by a national police training company. At trial the prosecution sought to use the second Mirandized statement.

It should be noted at the outset that the justices of the Supreme Court could not agree as to how this case should be analyzed. This led to a plurality (no majority) opinion in which 4 justices concluded that statements taken after police intentionally violate Miranda are per se inadmissible. Justice Kennedy agreed with the conclusion that the statement here was inadmissible but did not agree that all such subsequent statements would be inadmissible. Under Kennedy’s approach there may be ways to cure an intentional violation of Miranda and take a valid subsequent statement under some circumstances. The 4 dissenting justices would apply a straight Oregon v. Elstad analysis and allow the admissibility of the second Mirandized statement.

The plurality opinion notes that a “question first tactic” is likely to disable an individual from making a free and rational choice about whether to speak to police during interrogation. The justices in the plurality considered the “question first tactic” to be a “police strategy adopted to undermine the Miranda warnings.” It should be noted that the plurality distinguished the intentional violation of Miranda which occurred here from unintentional violations of Miranda such as Elstad leading to the suggestion that an unintentional violation of Miranda may not lead to the suppression of a subsequent Mirandized statement.

The Impact of Miranda Violations on Physical Evidence Located as the Result of the

Suspect’s Admissions

The Court concluded in United States v. Patane, 2004 U.S. LEXIS 4577 (2004) that a violation of Miranda does not impact the admissibility of physical evidence that is located as the result of the violation. The Patane case began with a police investigation of a restraining order violation. During the course of the investigation the police learned from the members of the Bureau of Alcohol, Tobacco and Firearms that Patane may be in possession of a firearm in violation of federal law. During the investigation Officer Fox of the Colorado Springs Police Department, joined by Detective Brenner went to Patane’s residence. While arresting Patane for the restraining order violation, Brenner began reciting the Miranda warnings. When he got to the right to remain silent, Patane stopped Brenner indicating that he knew his rights. Brenner then questioned Patane about the gun. Patane responded that he was not sure he should say anything about the gun because he did not want the officers to take it away from him. Brenner continued questioning Patane until he revealed the whereabouts of the gun. The gun was seized and Patane was charged federally with the possessing the firearm. On appeal to the United States Supreme Court Patane challenged the admission of the firearm as physical evidence since the firearm was seized as the result of a violation of Miranda.

In a 5-4 ruling, the Court held that the “fruit of the poisonous tree” doctrine does not apply to Miranda violations with respect to physical evidence. The Court noted that the 5th Amendment has its own rule of exclusion in that “testimonial” evidence taken in violation of Miranda cannot be used in the prosecution’s case in chief. The Court pointed out that physical evidence is not testimonial in nature and thus is not “self-incriminating” within the meaning of the 5th Amendment. The Court held “the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however is not implicated by the admission into evidence of the physical fruit of a [an otherwise] voluntary statement.” Thus, if the statement was voluntary, but taken in violation of Miranda, the physical evidence is not excluded.

Key Points:

Intentional Violation of Miranda renders subsequent Mirandized statements inadmissible.

Training protocols and policy on interrogation should be reviewed. If such policy or training recommended pre-Miranda questioning, policy should be amended and training should be conducted to end such practices.

“Fruit of the Poisonous Tree” doctrine does not apply to physical evidence located as the result of statement taken in violation of Miranda, as long as the statement was otherwise voluntary.

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