Civil Rights
Jul. 10, 2004
Rulings Encourage Police to Ignore 'Miranda'
Forum Column - By Erwin Chemerinsky - In the flurry of end of the term cases at the U.S. Supreme Court, not much attention has been paid to two important rulings concerning the consequences of the police intentionally violating Miranda v. Arizona, 384 U.S. 436 (1966).
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
In the flurry of end of the term cases at the U.S. Supreme Court, not much attention has been paid to two important rulings concerning the consequences of the police intentionally violating Miranda v. Arizona, 384 U.S. 436 (1966).
In one case, United States v. Patane, 2004 WL 1431768 (June 28, 2004), the court held that the failure of the police to properly administer Miranda warnings does not require the exclusion of physical evidence that is the result of the impermissible questioning. In the other decision, Missouri v. Seibert, 2004 WL 1431864 (2004), the court held that if police officers intentionally violate Miranda, incriminating statements made in a subsequent interrogation cannot be used against a criminal defendant, even if they are preceded by a proper administration of Miranda warnings.
This distinction makes no sense and sends an unclear message to police officers as to how they should treat the requirements of Miranda.
Indeed, together with last year's decision in Chavez v. Martinez, 123 S.Ct. 1994 (2003), which held that police cannot be sued for damages for violation of Miranda's requirements, these decisions encourage police to ignore Miranda knowing that they can benefit from unconstitutional interrogations.
Miranda v. Arizona held that police questioning of a suspect held in custody is inherently coercive and to lessen the coercion warnings must be given before interrogation. Just four years ago, in United States v. Dickerson, 530 U.S. 428 (2000), the Supreme Court held that Miranda warnings are a constitutional requirement and the court declared unconstitutional a federal statute providing that voluntary confessions should be admitted in federal court even when Miranda had not been properly followed.
Despite this emphatic reaffirmation of Miranda, the reality is that police often intentionally violate Miranda believing that they can use the fruits of their illegal questioning. Incriminating statements in such instances could not be used against the criminal defendant, but police believe that they could still gain other benefits from the statements, such as to impeach the defendant at trial, Harris v. New York, 401 U.S. 222 (1971), or to obtain physical evidence or subsequent statements. In fact, some police departments train their officers to intentionally violate Miranda in some circumstances because of the benefits they can gain from the illegal questioning. California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 1999).
In United States v. Patane, the Supreme Court encouraged such flouting of the law by police departments in holding that physical evidence may be admitted against a criminal defendant even if it is the product of an intentional violation of Miranda. Police arrested Patane for violating a restraining order. They began to administer Miranda warnings, but were cut off by the defendant. The officers then questioned Patane about a gun that he allegedly illegally possessed in violation of a federal law that prohibits a convicted felon from possessing a firearm.
Patane initially refused to answer the questions, but the officers persisted in their interrogation and ultimately Patane told them that he had the gun in his bedroom. The officers then found the firearm.
Justice Clarence Thomas, writing for the plurality, clearly stated the issue: "[W]hether a failure to give a suspect the warnings prescribed by Miranda v. Arizona requires suppression of the physical fruits of the suspect's unwarned, but voluntary statements." Thomas, reiterating a position he took last year in Chavez v. Martinez, said that the Fifth Amendment privilege against self-incrimination is violated only when police attempt to use improperly obtained statements against a suspect at trial.
In other words, from Thomas' perspective, the Fifth Amendment is only a testimonial privilege; if there is no use of testimony against a suspect, there can be no violation of the Fifth Amendment's privilege against self-incrimination. Under this view, there is no need to suppress physical evidence gained from questioning where Miranda warnings were not properly administered.
But only Chief Justice William H. Rehnquist and Justice Antonin Scalia agreed with this restrictive view of the Fifth Amendment. Likewise last year, in Chavez v. Martinez, a majority of the justices rejected the view that the Fifth Amendment applies only when statements are used against a criminal defendant at trial.
In Patane, Justice Anthony M. Kennedy, joined by Justice Sandra Day O'Connor, concurred in the judgment, and said that the gun could be used as evidence because it is reliable and important evidence. Kennedy said that using the gun against the defendant did not violate the Fifth Amendment because it is physical evidence and is not testimonial.
In contrast, in Missouri v. Seibert, the court did impose limits on the ability of prosecutors to benefit from intentional violations of Miranda. Police arrested a suspect in an arson and murder case, and though the suspect was in custody, no Miranda warnings were given. The police questioned her about whether she had burned her house down knowing that someone was inside. The suspect made incriminating statements. The police then took a break and returned 20 minutes later to resume their interrogation. This time, the police administered Miranda warnings and then asked the suspect to repeat her earlier statements. She did and the issue arose as to whether the latter statements were admissible.
The Supreme Court, again in a 5-4 ruling, held that the subsequent statements had to be excluded. Justice David H. Souter, writing for the plurality, said that the police had intentionally sought "to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed." The plurality saw the second statement as inherently tainted and, thus, inadmissible.
Kennedy concurred in the judgment and provided the key fifth vote for the majority. Kennedy said that there could be some situations in which the subsequent statement would be admissible, such as when the police violation is not "deliberate" or where adequate "curative measures" are taken. For example, the statements might be admissible if there is a substantial break in time between the two interrogations. Obviously, it is left for future cases to resolve what would be sufficient to cure the taint and allow the subsequent statement to be used.
Is there a meaningful distinction between these two cases?
Interestingly, only Kennedy saw a real difference. Four justices (Rehnquist, O'Connor, Scalia and Thomas) would have allowed the government to benefit in both instances; four (John Paul Stevens, Souter, Ruth Bader Ginsburg and Stephen G. Breyer) would have ruled to exclude the evidence in each case.
For Kennedy, the difference seems to be between admitting a statement as opposed to physical evidence. He sees the former, but not the latter, as implicating the Fifth Amendment's privilege against self-incrimination. But the problem with this argument is that it ignores that both types of evidence are gained as a result of police intentionally violating the requirements of the Fifth Amendment in not properly administering Miranda warnings to a person in police custody.
From the outset, the Supreme Court has stressed that Miranda is meant to protect suspects from police coercion, and the exclusion of evidence gained as a result is meant to deter violation. Allowing police to use the fruits of an illegal interrogation undermines the value of Miranda as a check on coercion or as a deterrent for illegal police questioning.
The bottom line of the Supreme Court's decisions from the last several years is that Miranda is constitutionally required and must be followed by the police in all in-custodial interrogations. But if the police intentionally violate Miranda's requirements, they cannot be civilly sued and they can use statements gained to obtain physical evidence or for other purposes, such as for impeachment. This sends a message to police that they really don't need to follow Miranda so long as they are willing to accept that they cannot use any statements gained directly against the defendant.
At best, in Patane and Seibert, the Supreme Court is sending mixed messages to police about whether they really need to follow Miranda. But the court should not be encouraging police to calculate whether it is worth their while to violate Miranda. The court should have said that violations of Miranda are never to be rewarded; anything gained is the fruit of the poisonous tree and must be excluded.
Erwin Chemerinsky is an Alston & Bird Professor of Law at Duke Law School.
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