Will the Apple Fall Far From the Tree?:
The Supreme Court Takes a Case About Miranda "Fruits"

By SHERRY F. COLB

Wednesday, May. 07, 2003

Last month, the United States Supreme Court agreed to hear an appeal in the case of United States v. Patane. Patane raises the question whether physical evidence obtained as a result of a non-Mirandized confession - a confession taken in violation of a suspect's Miranda rights - must be excluded at the suspect's criminal trial.

Another way of framing the question is to ask whether the physical products of Miranda violations are inadmissible "fruit of the poisonous tree." Lower courts have divided on this issue.

Mapp and Miranda

In 1961, the Supreme Court decided Mapp v. Ohio. Mapp held that evidence seized in violation of a suspect's Fourth Amendment rights, through unreasonable searches and seizures, is inadmissible at the suspect's criminal trial.

In cases that followed Mapp, the Court held that beyond the immediate results of a Fourth Amendment violation, evidence derived through the exploitation of that initial illegality should also be suppressed.

For example, suppose police illegally search B's pocketbook and find a list of locations. If they visit those locations and discover evidence of crime, then the "fruit of poisonous tree" doctrine requires suppression at trial not only of the list but also of the subsequently located evidence.

In 1966, the Supreme Court decided Miranda v. Arizona and held there that police officers who have a suspect in custody must give him a set of warnings prior to interrogating him. The required warnings tell a suspect that he has the right to remain silent; that anything he says can be used against him in court; that he has the right to counsel; and that if he wants but cannot afford a lawyer, one must be appointed to him.

As any respectable television viewer knows, only the suspect who goes on to waive these rights may be questioned. A violation of Miranda, moreover, results in the suppression of any statements made in response to interrogation.

In the 1960's, the Court's rulings appeared to embrace a broad reading of both the Fourth and Fifth Amendments. In addition to barring unreasonable searches and seizures, the Fourth Amendment also prohibited the introduction of any resulting evidence. Similarly, on top of prohibiting the introduction of coerced confessions, the Fifth Amendment itself also prohibited the introduction of non-Mirandized statements.

Though some of the language in Miranda and Mapp was ambiguous on these points, the overall reasoning supported a broad understanding of these decisions.

Cutting Back on Mapp and Miranda

Not long after the two decisions had come down, however, the Court began to narrow them and expand upon the implications of some of the more ambiguous language to which I alluded above.

Though much evidence continued to be inadmissible fruit of Fourth Amendment violations, its exclusion was not constitutionally compelled. Instead, the Court said, the reason for excluding evidence was as a means of disciplining and deterring police from violating people's Fourth Amendment rights. The violations themselves occurred only at the point of search and seizure and not later when the evidence was offered at trial.

Addressing custodial interrogation, the Court said that although the admission of non-Mirandized statements against a suspect is impermissible, such admission does not itself violate the Fifth Amendment. It instead violates a prophylactic rule intended to help discipline police and deter coerced confessions.

One might wonder why the characterization of evidence as unconstitutional should matter, if the end result is suppression either way. It matters a lot, as it turns out. Once the admission of evidence is deemed constitutionally permissible, the Supreme Court allows for greater flexibility in determining when to make an exception to the rule of exclusion.

Illustrating this point, the Court has held that the Fourth Amendment exclusionary rule and the Miranda exclusionary rule do not apply to the impeachment (discrediting) of a criminal defendant who testifies. Therefore, even if a defendant has experienced a Fourth Amendment violation or was questioned in contravention of Miranda prior to trial, the prosecutor may nonetheless offer the resulting evidence to contradict the defendant's testimony in court.

This and other exceptions to exclusion can exist only because the admission of such evidence, according to the Court, does not itself violate the Constitution. Admission only contravenes rules that help address and prevent true constitutional violations.

Miranda Fruits

One of the ways in which the Court has developed the flexibility of Miranda in the years that followed the decision was to provide that the "fruits" of a Miranda violation would not be excluded. The only inadmissible portion of the evidence was the statement given in response to non-Mirandized questioning. Evidence later derived from that questioning could be introduced without a problem.

Though the particular cases did not specifically involve physical evidence, it was generally understood that both physical and testimonial evidence would stand outside any "fruit of the poisonous tree" doctrine if the tree was a non-Mirandized statement. Only Fourth Amendment violations would represent a "poisonous tree," in that sense.

Dickerson

Then, in 2000, the Supreme Court decided Dickerson v. United States. Dickerson raised the question whether the Miranda rules were indeed constitutionally compelled or whether they were simply one among many possible ways of addressing Fifth Amendment violations, as the cases (including some language in Miranda itself) suggested.

The Court held in Dickerson that Miranda was a "constitutional decision" rather than an optional set of rules, and that therefore, neither Congress nor the states could discard it at will.

Typical of the Court's earlier equivocation, however, was the use of the phrase "constitutional decision" and the failure to overrule any of the earlier decisions premised on the idea that Miranda violations were something other than pure Fifth Amendment violations.

Patane

Now the Supreme Court has agreed to hear the case of Patane and perhaps, finally, to answer the question whether Miranda violations are Fifth Amendment violations.

Under unadulterated Fifth Amendment precedents, actual coerced confessions and evidence derived from them are absolutely inadmissible in a criminal trial against the accused. There is no flexibility of the sort found in Fourth Amendment "fruits" doctrine.

A pure example is self-incriminating testimony given under a grant of immunity. When Colonel Oliver North testified before Congress in the hearings investigating the Iran-Contra affair, for example, he did so only because he was given "use and derivative use" immunity, a constitutionally mandatory grant whenever a person is compelled to provide self-incriminating statements.

Because such immunity is so broad, North's later conviction for perjury before Congress was reversed on the ground that some of the evidence proving he had lied under oath may have been derived from his immunized testimony. As some critics of constitutional exclusionary rules like to say of people similarly situated, Col. North was freed "on a technicality".

Derivative use immunity (or a Fifth Amendment version of "fruits" doctrine) would therefore seriously alter the terrain of criminal trials if it were applied in all of its breadth to the context of Miranda violations.

The Facts and Prior Legal Proceedings in Patane

In Patane itself, the police gave the suspect some of the warnings but stopped after he interrupted them to say that he knew his rights. Under the precedents, the police should nevertheless have finished the warnings before questioning the suspect. As a result, Patane's subsequent statements telling police where his illegal weapon was located were held to be inadmissible, pursuant to straightforward Miranda doctrine.

The issue in the case is whether the illegal weapon that police were able to locate as a result of Patane's non-Mirandized statements was inadmissible as well.

The Court of Appeals in Patane believed that Dickerson changed the law dramatically. Although the old precedents remained in force, said the Tenth Circuit panel, they could be distinguished on their facts. Because the Court had never explicitly held that physical evidence derived from Miranda violations were admissible, the new Dickerson regime of "Miranda equals Fifth Amendment" would require exclusion of the physical evidence.

In a valiant attempt to make all of the Supreme Court's Miranda jurisprudence consistent, the judges in Patane said that the fruits doctrine had not previously been applied to Miranda because such application in the particular cases would not have helped deter Fifth Amendment violations.

This last attempt at establishing consistency reveals the true incoherence of Miranda after Dickerson. If the introduction of evidence derived from Miranda violations itself violates the Fifth Amendment, then it is meaningless to speak of its suppression as "deterring" Fifth Amendment violations.

Prohibiting the introduction of bona fide coerced confessions is simply compelled by the Fifth Amendment - it is not an effort to "deter" anything. To suggest otherwise would be the equivalent of saying that the Eighth Amendment prohibits the execution of bank robbers and that this prohibition exists to help "deter" other Eighth Amendment violations.

What the Court Should Do in Patane

When the Court agreed to hear Dickerson, many people expected it to decide whether or not Miranda was constitutionally compelled. Instead, the Court managed to evade the question. Now it has taken a case that asks what Dickerson meant. If the Court is brave, it will do one of two things.

First, the Court could hold that Miranda is a "constitutional decision" only in the limited sense that the Constitution requires the government to employ some set of effective safeguards to protect suspects against the inherent coercion of custodial interrogation.

Such a holding would interpret Dickerson as saying that the federal statute at issue in that case provided insufficient safeguards but that the precise regime of Miranda warnings could theoretically be replaced by other safeguards, such as videotaping all custodial interrogation.

Second, and alternatively, the Court could hold in Patane that every aspect of the Miranda warnings is constitutionally compelled. This approach would signify the overruling of earlier precedents giving courts greater flexibility in dealing with Miranda evidence than with coerced confessions.

I fear the Court will take neither forthright course but will instead produce a limited ruling on the fruits question. If it does as I predict, it will thereby continue the confusion and ambiguity that have characterized Miranda almost from its inception.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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