WK3 DISCUSSION INTERVIEW OR INTERROGATION?

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YOU HAVE THE RIGHT TO BE

CONFUSED! UNDERSTANDING

MIRANDA AFTER 50 YEARS

Bryan Taylor, JD, PhD*

I. Introduction

2016 marks the fiftieth anniversary of Miranda v.

Arizona.1 Since its issuance, courts have rendered tens of

thousands of decisions to interpret this amorphous opinion.

Scholars have published numerous articles in legal academia,

criminal justice journals, and law enforcement periodicals.

Millions have heard the familiar Miranda warnings2 whether it

be from television or movies or being questioned by the police.

* Bryan Taylor is the elected Prosecuting Attorney for Canyon County Idaho, as well as an adjunct professor of law at Concordia University School of Law. The author would like to give special thanks to Margie Cleverdon, a third year law student at Concordia University School of Law, and Frank Zebari, a deputy prosecutor in Canyon County Idaho, for their contributions, suggestions, and thoughts.

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. at 444. Police often quote the warnings as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements. Do you understand each of these rights I have explained to you? Having these rights in mind do you wish to talk to us now?

Wainright v. Greenfield, 474 U.S. 284, 286 (1986). See Berghuis v. Thompkins, 560 U.S. 370, 375 (2010).

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Today, the Miranda warnings are nearly as deeply engrained

in American culture as the Star-Spangled Banner is at a

football game. The warnings have become second nature, even

though they do not appear anywhere in the United States

Constitution. But although these warnings are well known,

their meaning and the timing of when police are required to

provide them can be confusing. Ultimately with Miranda and

its progeny “You have the right to be confused!”

Because so much has been written and discussed about

Miranda, it is sometimes difficult to see the proverbial forest

beyond the individual trees. This article examines where we

are with Miranda after 50 years from a practice and

application point of view.3 Due to the complexities that legal

opinions promulgated in their numerous interpretations,

Miranda’s changing landscape creates a ripe opportunity for

law enforcement, legal practitioners, as well as trial judges to

have a working summation of a case that has significantly

evolved and changed.

Part I of this article briefly explores the background and

historical context that ultimately led to the Miranda decision.

As the late Dr. Carl Sagan once said, “you have to know the

past to understand the present.”4 Understanding the

circumstances and cases leading up to Miranda helps in the

overall application of Miranda to cases of today. Part II

addresses whether a statement should be allowed into evidence

and provides a practical working approach to conduct a

Miranda analysis. This innovative approach provides a step-

by-step process in determining the admissibility of statements

pursuant to Miranda and its progeny. This process provides

clarity to the world of Miranda for practitioners in the criminal

justice system. Finally, Part III of the article examines what

happens when the Miranda rule is not followed. The

ramifications are discussed and distinguished from the Fourth

3. Each one of the sections discussed could easily be its own law review article. The purpose behind this article is to provide a basic foundational framework for law enforcement, prosecutors, defense attorneys, and judges in applying Miranda with fifty years of case law.

4. Cosmos: A Personal Voyage: One Voice in the Cosmic Fugue (PBS television broadcast Oct. 5, 1980), http://www.dailymotion.com/video/x10bdyd

_cosmos-carl-sagan-a-personal-voyage-episode-2_tech.

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Amendment.

II. PART I: Background and Historical Context of Miranda

By the time the facts of Miranda reached the Supreme

Court in 1966, the nature and extent of the constitutional

protections afforded by the Fifth and Sixth Amendment were

slowly taking on a more contemporary shape. Reflecting the

civil unrest of the period and the increasing pressure for

greater social equality5, decisions of the United States Supreme

Court were visibly forging dramatic transformations in the

criminal justice system. Even though the Fourteenth

Amendment was ratified in 1868 as a restriction on state

power, the Court had consistently resisted interpreting the

protections of the Bill of Rights as a restraint on the states in

the exercise of their police power.6 By 1915, the Court had

ruled the protection of the Self-Incrimination Clause applied

only to federal proceedings7 and the Due Process Clause’s only

demand on the states with regards to criminal defendants was

adequate notice of the charges and the opportunity to be

heard.8 Through numerous legal opinions written during the

span of the 1930s to the 1960s, the Court gradually paved the

way for a broader interpretation of the requirements of the Due

5. GARY L. STUART, MIRANDA: THE STORY OF AMERICA’S RIGHT TO REMAIN

SILENT 22 (Univ. of Ariz. Press 2004).

6. RICHARD C. CORTNER, A SCOTTSBORO CASE IN MISSISSIPPI: THE SUPREME

COURT AND BROWN V. MISSISSIPPI vii (Paul L. Murphy ed., 1986).

7. Twining v. New Jersey, 211 U.S. 78, 114 (1908) (“[T]he exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.”).

8. Frank v. Mangum, 237 U.S. 309 (1915). As per this court case:

[A] criminal prosecution in the courts of a state, based upon a law not in itself repugnant to the Federal Constitution, and conducted according to the settled course of judicial proceedings as established by the law of the state, so long as it includes notice and a hearing, or an opportunity to be heard, before a court of competent jurisdiction, according to established modes of procedure, is ‘due process’ in the constitutional sense.

Id. at 326.

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Process Clause.9 However, a few specific cases effectively

illustrate the background that ultimately cast the footings for

the decision pronounced in Miranda v. Arizona. For almost

three decades, the U.S. Supreme Court had struggled to

answer fundamental questions regarding police questioning

suspects and the rights of the accused. Although numerous

opinions were promulgated, three opinions capture the general

basis establishing the foundational framework for the Supreme

Court’s opinion in Miranda v. Arizona.

A. Brown v. Mississippi (1936)

The first case in the trek towards Miranda was the 1936

United States Supreme Court case of Brown v. Mississippi.10

On Friday, March 30, 1934, a spring day in the Giles

Community of Kemper County, Mississippi, the brutally

bludgeoned and burnt body of Raymond Stewart was

discovered in the cotton seed room of his home.11 Stewart, a

sixty-year-old white planter, succumbed to his wounds within

thirty minutes of his discovery without ever having regained

consciousness.12 By the following Friday, April 6, an all-white

9. See Mooney v. Holohan, 294 U.S. 103 (1935). The requirement of Due Process:

[C]annot be deemed to be satisfied by mere notice and hearing if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured.

Id. at 112. See also Powell v. Alabama, 287 U.S. 45, 65 (1932) (“[F]ailure of the trial court to give [defendants] reasonable time and opportunity to secure counsel was a clear denial of due process.”); Tumey v. Ohio, 273 U.S. 510, 531 (1927) (“[A] system by which an inferior judge is paid for his service only when he convicts the defendant has not become so embedded by custom in the general practice, either at common law or in this country, that it can be regarded as due process of law . . . .”); Moore v. Dempsey, 261 U.S. 86, 92 (1923) (“[I]t does not seem to us sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself when if true as alleged they make the trial absolutely void.”).

10. Brown v. Mississippi, 297 U.S. 278 (1936).

11. CORTNER, supra note 6, at 5, 15.

12. Id. at 15–16.

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jury delivered verdicts of guilty against three of Stewart’s black

tenant farmers, Ed Brown, Henry Shields, and Yank

Ellington.13 The judge sentenced all three to hang on May 11,

1934.14

On the evening of the murder, a deputy sheriff and some

other white men brought Ellington from his home to

Stewart’s,15 where a mob tied Ellington to a tree and whipped

him.16 When Ellington denied his involvement in Stewart’s

murder, the men hung him by his neck from a tree limb.17

They let him down, but hung him again when he still insisted

he was not involved.18 Letting him down again, he maintained

his innocence, so the men tied him to the tree and whipped

him.19 When he still would not confess, the men told him to go

home.20 But the ordeal was far from over; two deputies

arrested Ellington at his home the next day.21 On the way to

the jail, the deputies drove into nearby Alabama, stopped, and

“severely whipped” Ellington until he agreed to confess.22

Meanwhile by Saturday afternoon, Brown and Shields

were also arrested and taken to the jail.23 On Sunday evening,

they “were made to strip and they were laid over chairs and

their backs were cut to pieces with a leather strap with buckles

on it” by the deputy sheriff and two other men.24 The

defendants eventually changed their confessions “in all

particulars of detail so as to conform to the demands of their

torturers.”25

The District Attorney, John Stennis, brought the three to

trial six days after the murder.26 His case against the suspects

13. Id. at 31.

14. Id. at 10–11.

15. Brown, 297 U.S. at 281.

16. CORTNER, supra note 6, at 25.

17. Brown, 297 U.S. at 281.

18. Id.

19. Id.

20. Id.

21. Id.

22. Brown, 297 U.S. at 281; CORTNER, supra note 6, at 25.

23. Brown, 297 U.S. at 282. See CORTNER, supra note 6, at 6.

24. Brown, 297 U.S. at 282.

25. Id.

26. Jonathan L. Entin, Brown v. Mississippi, 297 U.S. 278 (1936), in 1

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was based entirely upon their confessions, all of which were

obtained via torture.27 After only half an hour, the jury

returned guilty verdicts and the judge immediately imposed

death sentences.28 The defendants appealed the verdicts to the

Mississippi Supreme Court which affirmed the judgments29

and subsequently, to the United States Supreme Court.30 In a

significant expansion of the fair-trial rule,31 a unanimous Court

reversed the state conviction and ruled that a conviction based

upon a coerced confession offended a fundamental principle of

justice in violation of the Due Process Clause of the Fourteenth

Amendment.32 “Coercing the supposed state’s criminals into

confessions and using such confessions so coerced from them

against them in trials has been the curse of all countries.”33

The Brown opinion made it very clear for law enforcement that

they could not obtain evidence, especially confessions, through

such physically brutal and coercive methods.

B. Ashcraft v. Tennessee (1944)

The second case in the path to Miranda was the 1944

opinion of Ashcraft v. Tennessee.34 On the morning of June 5,

1941, Zelma Ashcraft got in her car and set out on a trip to

ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES 224-25 (David S. Tanenhaus ed., 2008).

27. Brown, 297 U.S. at 279. Called as a rebuttal witness at the trial, Deputy Sheriff Cliff Dial admitted that the defendants denied any involvement in Stewart’s murder, but that they changed their stories after he “kind of warmed them a little–not too much.” CORTNER, supra note 6, at 28. When asked if they had been whipped, Dial replied, “[n]ot too much for a negro.” Id.

28. ENTIN, supra note 26, at 224.

29. Brown, 297 U.S. at 280. The Mississippi Supreme Court heard the Defendant’s motion that the trial court errored that the confessions were admissible on the ground that all the evidence against them was obtained by coercion. The defendants also alleged that they had been denied the benefit of counsel or opportunity to confer with counsel in a reasonable manner. The court entertained the suggestion of error, and ultimately ruled against the defendants contention. Two judges dissented. Id.

30. CORTNER, supra note 6, at chs. 3-4.

31. Mooney v. Holohan, 294 U.S. 103 (1935).

32. CORTNER, supra note 6, at 131-32.

33. Brown v. Mississippi, 297 U.S. 278, 287 (1936).

34. Ashcraft v. Tennessee, 322 U.S. 143 (1944).

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visit her mother in Kentucky from her home in Memphis,

Tennessee.35 Later that afternoon, her car was seen just

outside of Memphis, and her murdered body was found just off

the road in a slough.36 The police questioned her husband E.E.

Ashcraft later that day about the murder.37 On Saturday June

14, 1941, the police arrested Ashcraft, brought him to the

county jail, and placed him in an interrogation room.38 They

questioned Ashcraft for thirty-six hours straight until the

morning of Monday, June 16.39 During this entire time,

Ashcraft was not allowed any rest and received only a five-

minute break.40 What actually transpired in the interrogation

room was disputed the police claimed that at the end of the

thirty-six hour interrogation Ashcraft confessed to the crime,

while Ashcraft claimed he did not.41 Regardless, the police

relied on what they believed was a confession by Ashcraft: that

he was overpowered by an individual named John Ware and

that Ware was the one that actually committed the murder.42

Once Ware was picked up, the police showed Ware the

confession by Ashcraft.43 Ware then gave his own statement

that Ashcraft hired him to kill Ashcraft’s wife.44 Ashcraft

argued that his confession was coerced because he was

deprived sleep, food, and a break for such a long period of

time.45 The U.S. Supreme Court held that even if Ashcraft

confessed, it was “not voluntary but compelled.”46 “The

Constitution of the United States stands as a bar against the

conviction of any individual in an American court by means of a

coerced confession.”47 The Court stated that an individual

cannot be taken into custody by police officers and held for

35. Id. at 144.

36. Id.

37. Id.

38. Id. at 149.

39. Id.

40. Ashcraft, 322 U.S. at 149.

41. Id. at 151.

42. Id.

43. Id.

44. Id.

45. Id. at 145.

46. Ashcraft, 322 U.S. at 143.

47. Id. at 155.

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thirty-six hours during which they are kept incommunicado,

without sleep or rest, being questioned by relays of officers,

experienced investigators, and highly trained lawyers without

respite. Such circumstances amount to a denial of due process

of law and any statements made are not voluntary.48 As a

result of Aschraft, all forms of coercive techniques are

prohibited. Ashcraft distinguishes Brown—in Brown, the

Court prohibits physical coercion; in Aschraft, the Court

prohibits forms of coercion that are necessarily “physical” such

as deprivation of sleep.

C. Escobedo v. Illinois (1964)

The third case in the journey to Miranda was the 1964

case of Escobedo v. Illinois.49 Up to this point in the timeline,

police knew where the line was drawn as it relates to coercive

interrogation techniques. However, they were not given any

direction as to whether an individual could request an attorney

to be present on their behalf during an interrogation. In

Escobedo, the Court addressed the question of what happens

when police fail to honor a suspect’s request to consult with his

lawyer during the course of an interrogation.50 The Court held

that such a refusal violates the Sixth Amendment; police must

allow a suspect to speak with an attorney when a suspect asks

to do so.51

On the night of January 19, 1960, Danny Escobedo’s

brother-in-law (Manuel Valtierra) was fatally shot.52 Valtierra

had escaped prosecution for stabbing his wife (Escobedo’s

48. Id. at 153–54.

49. Escobedo v. Illinois, 378 U.S. 478 (1964). Escobedo came down one year after the landmark case of Gideon v. Wainwright. In Gideon, the United States Supreme Court held that persons accused of felony offenses have a fundamental right to an attorney, even if they cannot afford one, per the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). Escobedo attempted to answer the question as to precisely when in the criminal justice process a defendant must be informed of this right to counsel. Escobedo, 378 U.S. at 478.

50. Escobedo, 378 U.S. at 479.

51. Id. at 492.

52. STUART, supra note 5, at 35.

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sister) more than a dozen times the year prior.53 Escobedo, his

sister, and two friends were arrested the following morning and

brought in to be questioned.54 Escobedo did not say anything,

was subsequently released, and retained a lawyer.55 On

January 30, 1960, Escobedo’s friend, Benedict DiGerlando, was

again in police custody.56 DiGerlando told police that Escobedo

was the one that had fired the fatal shots.57 Police arrested

Escobedo and a detective confronted Escobedo with

DiGerlando’s statement that Escobedo was the shooter.58

Escobedo replied, “I am sorry but I would like to have advice

from my lawyer.”59 The police refused, saying he could talk to

his lawyer after they were done questioning him.60 Escobedo

thereafter made an incriminating remark.61 While Escobedo

was questioned, his attorney had arrived and asked to see his

client, but the police refused to allow him access to Escobedo.62

The Supreme Court held when a suspect is in custody and

requests to speak to an attorney, the police must afford him

that opportunity.63 To deny such a request is a violation of the

Sixth Amendment.64

D. Miranda v. Arizona (1966)

53. Id.

54. Escobedo, 378 U.S. at 479.

55. Id.

56. STUART, supra note 5, at 35.

57. Escobedo, 378 U.S. at 479.

58. Id.

59. Id.

60. Id. at 481–82.

61. Id. at 482–83.

62. Id. at 481–82.

63. Escobedo, 378 U.S. at 490–92.

64. Id. at 491. An additional case prior to Miranda somewhat similar to Escobedo is Massiah v. U.S., 377 U.S. 201 (1964). Winston Massiah was indicted for narcotics charges, retained a lawyer, pleaded not guilty, and was released on bail. While free on bail, a co-defendant (who was working with the police) had a conversation with Massiah in the absence of his counsel. Police listened in on the conversation and used the incriminating statements against him. The Supreme Court held that under the 6th Amendment guaranty of the defendant’s right to assistance of counsel, the defendant’s incriminating statements could not be used against him because the government had violated that right to counsel.

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Brown, Ashcraft, and Escobedo were three seminal cases

that capture the tone of the courts in relation to police

interrogations and set the stage for the 1966 landmark opinion

of Miranda v. Arizona.65 Up to this point, the Supreme Court

had employed a case-by-case voluntariness analysis where it

would review the totality of the circumstances.66 The Court

was tired of this approach, and with Miranda they ended the

prominence of due process voluntariness analysis. One of the

goals of “the new Miranda rule was to displace the subjective,

case-by-case due process voluntariness approach with an

objective standard that applied equally to all cases.”67 The

Court’s position was that the “due process/totality of

circumstances/voluntariness test” was “an inadequate barrier

when custodial interrogation was at stake.”68 Numerous factors

influenced the Court’s determination to depart from the

current voluntariness standard.

First, the doctrine required fact-specific, case-by-

case review and thus placed enormous and ever-

growing demands on the federal courts. Second,

65. Although the Miranda opinion is a consortium of cases, because Ernesto Miranda’s case appears first in the caption, the case is referred to as Miranda v. Arizona. Miranda v. Arizona, 384 U.S. 436 (1966). The other three cases are Vignera v. New York, Westover v. United States, and California v. Stewart. Id.

66. See, e.g., Haynes v. Washington, 373 U.S. 503, 513-14 (1963); Chambers v. Florida, 309 U.S. 227, 238-40 (1940); Brown v. Mississippi, 297 U.S. 278, 286-87 (1936).

67. Richard A. Leo, The Impact of Miranda Revisited, 86 J. CRIM. L. &

CRIMINOLOGY 621, 628 (1996). See Martin R. Gardner, The Emerging Good Faith Exception to the Miranda Rule -- A Critique, 35 HASTINGS L.J. 429, 461 (1984); Richard K. Sherwin, Dialects and Dominance: A Study of Rhetorical Fields in the Law of Confessions, 136 U. PA. L. REV. 729, 781 (1988).

68. Yale Kamisar, The Rise, Decline, and Fall (?) of Miranda, 87 WASH. L. REV., 965, 967 (2012). In Dickerson v. U.S., 530 U.S. 428 (2000) the U.S. Department of Justice in its reply brief “recall[ed] that the Miranda Court arrived at its solution only after concluding that the ‘totality of circumstances' voluntariness test, as the sole protection for the Fifth Amendment rights of a custodial suspect, had failed....It was inadequate because a ‘totality’ test, without more, provided insufficient guidance to the police, left inadequate means for this Court to unify and expound the law, and resulted in an uncertain legal rule that could not secure the vital constitutional rights at stake.” Reply Brief for the United States at 20, Dickerson, 530 U.S. 428 (No. 99-5525).

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the Court had been unable to stimulate sufficient

lower-court awareness of the voluntariness

doctrine’s underlying concerns. Despite a century

of Supreme Court voluntariness jurisprudence,

lower courts had failed to accept and implement

creatively the Court’s increasing sensitivity to

the risks that police practices posed to values

protected by the federal constitution.69

As a result, the rule promulgated by Miranda would

change the landscape of custodial interrogations in American

Criminal Justice.

The facts of Miranda are one of the most poetically ironic

stories in criminal justice folklore. The year was 1963, the day

March 2.70 Ernesto Miranda, a poor, Mexican immigrant, lived

in Phoenix, Arizona.71 On this day, Miranda kidnapped an

eighteen year-old woman from a movie theatre, blindfolded her,

took her out into the Arizona desert, and raped her.72

Following the rape, Miranda drove her back to town and

dropped her off in the neighborhood where she lived.73 While

the rape took place, witnesses obtained a partial plate number

of the truck.74 Even though the victim reported the crime, the

police did not have much to work from.75 However, soon after,

a witness spotted a truck matching the description along with

69. George E. Dix, Federal Constitutional Confession Law: The 1986 and 1987 Supreme Court Terms, 67 TEX. L. REV. 231, 235 (1988). see also Stephen Schulhofer, Reconsidering Miranda, 54 U. Chi. L. Rev. 435 (1987).

70. STUART, supra note 5, at 4.

71. Id.

72. Michael S. Lief & H. Mitchell Caldwell, You Have the Right to Remain Silent, AM. HERITAGE MAGAZINE, Aug./Sept. 2006, http://web.archive.org/web/20090206174116/http://americanheritage.com/arti cles/magazine/ah/2006/4/2006_4_48.shtml.

73. Id. See STUART, supra note 5, at 4.

74. STUART, supra note 5, at 5 (disputing as to who obtained the partial plate number; the victim’s cousin or the victim’s brother-in-law).

75. Id. at 3–5. A young detective by the name of Carroll Cooley took on the case as the latest one in a series of similar incidents, which over the previous few months. Id. at 4. The first occurred on November 27, 1962, in which the suspect assaulted, robbed, and attempted to rape a young bank teller. Id. at 3. The second occurred on February 22, 1963, in which the suspect attempted to rape and rob an eighteen-year-old telephone dispatcher. Id.

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the partial license plate.76 Police followed up on the lead and

identified the vehicle as belonging to Twila Hoffman.77

Hoffman told detectives that the man living with her was

Ernesto Miranda and he used the car.78 Shortly after, Miranda

agreed to accompany police to the station for

questioning.79During the interrogation, Miranda did not have

an attorney present.80 The police officers questioning him did

not inform him of his right against self-incrimination, nor of his

right to counsel.81 Miranda had not finished the ninth grade

and had a history of mental instability.82 After two hours,

Miranda gave a full confession in writing.83 The police then

took Miranda to the victim where he further positively

identified she was the girl he kidnapped and raped.84

Other than Miranda’s confession, prosecutors had little

evidence to present at trial. Relying on only the confession, a

jury convicted Miranda. The trial judge imposed a sentence of

twenty to thirty years in prison.85 Miranda appealed, arguing

he should have been advised of his right to an attorney and of

his right to remain silent prior to police questioning.86

Miranda’s appeal proceeded to the U.S. Supreme Court. In

1966, the Court set forth what would come to be known as

Miranda warnings and mandated that law enforcement officers

advise suspects of their constitutional rights (despite the

Constitution itself does not requiring such action). The

Supreme Court summarized as follows:

Our holding will be spelled out with some

specificity in the pages which follow but briefly

stated it is this: the prosecution may not use

statements, whether exculpatory or inculpatory,

76. Id. at 5.

77. STUART, supra note 5, at 5.

78. Id.

79. Id.

80. Miranda v. Arizona, 384 U.S. 436, 491 (1966).

81. Id.

82. STUART, supra note 5, at 7, 9.

83. Id.

84. Id.

85. Id. at 15–22.

86. Id. at 22.

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stemming from custodial interrogation of the

defendant unless it demonstrates the use of

procedural safeguards effective to secure the

privilege against self-incrimination. By custodial

interrogation, we mean questioning initiated by

law enforcement officers after a person has been

taken into custody or otherwise deprived of his

freedom of action in any significant way. As for

the procedural safeguards to be employed, unless

other fully effective means are devised to inform

accused persons of their right of silence and to

assure a continuous opportunity to exercise it,

the following measures are required. Prior to

any questioning, the person must be warned that

he has a right to remain silent, that any

statement he does make may be used as evidence

against him, and that he has a right to the

presence of an attorney, either retained or

appointed. The defendant may waive

effectuation of these rights, provided the waiver

is made voluntarily, knowingly and intelligently.

If, however, he indicates in any manner and at

any stage of the process that he wishes to consult

with an attorney before speaking there can be no

questioning. Likewise, if the individual is alone

and indicates in any manner that he does not

wish to be interrogated, the police may not

question him.87

The Court rooted its rationale in the Fifth Amendment’s

privilege against self-incrimination, as opposed to the right to

counsel.88 The Court reasoned that when a suspect is being

87. Miranda, 384 U.S. at 444–45 (footnote omitted).

88. Although the Miranda warnings are rooted in the Fifth Amendment, the Supreme Court has declared in a number of cases that the warnings established are a “series of recommended ‘procedural safeguards’ . . . [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected.” Davis v. United States, 512 U.S. 452, 457 (1994) (quoting Michigan v. Tucker, 417 U.S. 433, 443–44 (1974)); See Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (holding that the warnings prescribed by Miranda

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interrogated in a police-dominated atmosphere, they are likely

to be prompted to make an incriminating confession.

Ultimately, the Supreme Court decided Miranda’s

confession was obtained improperly and, therefore, set

Miranda’s conviction aside.89 The police failed to first inform

Miranda of his right to an attorney and his right against self-

incrimination. On remand, the State of Arizona retried

Miranda, without using his confession. Rather, they used

testimony from Miranda’s estranged wife, whom Ernesto

confided in about what had transpired and had confessed that

he was guilty of the crime.90

However, the poetic tale of Ernesto Miranda does not end

after his second trial. Miranda was paroled in 1972. After his

release, Miranda earned a supplemental income autographing

“Miranda Warning” cards for $1.50 apiece.91 Miranda decided

to earn a little more money by playing in a poker game at a

Phoenix bar. On January 31, 1976, Miranda was playing cards

in a bar called La Amapola.92 One of the other players caught

Miranda cheating, confronted him, and ultimately stabbed and

killed him.93 Police arrived on scene and started to question

potential suspects. The urban legend94 told is that police

questioned the suspected killer, yet failed to Mirandize him,

and thus, the killer’s statements could never be used to

prosecute him.

are not “required by the Fifth Amendment’s prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose.”).

89. Miranda, 384 at 492.

90. Larry A. Van Meter, Miranda After Miranda, in GREAT SUPREME

COURT DECISIONS (Chelsea House Publishers, 2007)

http://www.fofweb.com/History/MainPrintPage.asp?iPin=GSCDMA07&DataT ype=AmericanHistory.

91. Jack Kelly, The Miranda Decision, 40 Years Later, AM. HERITAGE (June 13, 2006, 8:40 AM),

http://web.archive.org/web/20080704141306/http://www.americanheritage.co m/events/articles/web/20060613-ernesto-miranda-rights-supreme-court-fifth- amendment-arizona-constitution-scottsboro.shtml.

92. Van Meter, supra note 85.

93. Miranda Stabbing Suspect Caught, KINGMAN DAILY MINER, Feb. 2, 1976, at 2, http://news.google.com/newspapers?id=cjIPAAAAIBAJ&pg=6150,1736687.

94. These facts are not substantiated, but are tales told amongst prosecutors and law enforcement professionals.

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For fifty years, the Miranda case has evolved in its

understanding and its application. Those involved in the

criminal justice system have struggled with proper

implementation of Chief Justice Warren’s majority opinion in

Miranda. The remainder of this article provides a summation

of the Supreme Court rulings interpreting and explaining

Miranda. The article provides a functional approach for

practitioners and law enforcement to navigate Miranda and its

progeny 50 years later.95

III. Part II: Two Prong Approach to Miranda

Miranda v. Arizona is the foundational opinion that sets

base-line rules governing confessions both in the federal as well

as state courts. The general rule prescribed by Miranda is that

when a suspect is in custody being interrogated by police, he

must be provided Miranda warnings for any subsequent

confession to be admissible. After those warnings are given, it

must then be determined whether the suspect voluntarily,

knowingly, and intelligently agreed to speak with law

enforcement. With over fifty years of precedent analyzing

Miranda, a process slowly emerged from the numerous legal

opinions. The following flow chart provides a six-step process

to analyze whether a confession has been obtained in

compliance with Miranda and its progeny. The chart further

provides a pragmatic guide for practitioners, both in the legal

and law enforcement communities.

There are two prongs to the Miranda analysis.96 The first

prong is whether the warnings need to be given. Step One is

the most complex in determining whether three factors are

95. Two years after the Supreme Court decided Miranda, Congress enacted 18 U.S.C. § 3501, which, in essence, made the admissibility of confessions dependent solely on whether they were made voluntarily. However, the Supreme Court, almost forty years later in Dickerson v. United States, stated that because Miranda was based upon interpretation of the Constitution, Congress could not impose different standards and rules making non-Mirandized confessions admissible. Dickerson v. United States, 530 U.S. 428 (2000).

96. Although not expressly established in any particular case, a confession will typically be allowed in a criminal prosecution upon a successful showing of these two prongs.

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present for Miranda to apply. All three factors must be met

before one can move on to Step Two. The second step identifies

certain exceptions where even though the three factors exist in

Step One, Miranda warnings are not required. Step Three

requires a suspect be advised of the four warnings as

prescribed.

The second prong is as follows: if the warnings are

required to be given, has the suspect either effectively invoked

his rights or has the suspect waived them. Step Four

addresses whether at any time the suspect clearly and

unequivocally invoked his rights. Steps Five and Six address

whether a suspect’s waiver was voluntarily, intelligently, and

knowingly made. If the police follow all six steps properly, any

statements made should be proper under the Miranda doctrine.

Figure 197 is a flow chart of the proper application of Miranda.

97. This flow chart was created in 2013 by Dr. Bryan Taylor to aid in the training of law enforcement officers. This particular version has been slightly modified for publication purposes. Further the chart has served as a tool for practitioners to apply Miranda as articulated by the Supreme Court over the past 50 years. The tool has been tested in state court with much success.

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Figure 1: Miranda Flow Chart

Prong #1: Does Miranda Apply? Prong #2: Has suspect invoked or waived rights?

Step#1: General Rule

Do ALL "3" factors apply?

i. Authority

ii. Custody

iii. Questioning/Interrogation

“No”

“Yes”

Miranda

Doesn't Apply

Move to

Step #2

Step #2: Exceptions

Does an Exception apply?

i. Routine traffic stop

ii. Public safety

iv. Officer safety/Terry stops

v. Routine booking questions

“Yes”

“No”

Miranda

Doesn't Apply

Move to Step #3

Step #3: Warnings

Was suspect advised of "4" warnings?

i. Right to remain silent.

ii. Anything said can and will be used.

iii. Right to an attorney.

iv. Can't afford attorney, one provided.

“Yes” “No”

Statements

Suppressed Move to

Prong #2

Step#4: Invocation of Rights

At any time did the suspect clearly and

unequivocally invoke his/her rights?

i. Right to remain silent.

ii. Right to an attorney.

“Yes” "No"

Move to

Step #5

Stop Questioning!

Step #5: Voluntary

Did suspect voluntarily agree to

speak with you?

i. Any coercion

“Yes”

Move to Step #6 Inquire as to why?

“No”

Step #6: Knowingly & Intelligently

Did suspect knowingly & intelligently

understand the warnings?

i. Is the individual intoxicated

ii. How old is the individual

Proceed with

questioning

Clarify as what they

do not understand

“Yes

”

“No”

Has there been a

14 day break?

“Yes” “No”

Back to

Step #1

Don’t

Question

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A. First Prong: Does Miranda Apply?

1. Step One: General Rule and Three Factors

Three basic requirements have to be met before the

Miranda doctrine is applicable and the warnings required to be

given. If one of these requirements is absent, then the rules set

forth in Miranda do not apply. The three requirements are: (1)

authority, (2) custody, and (3) interrogation. If all three

requirements are met, then the law enforcement officer must

advise the suspect of the four warnings as prescribed; that is

unless there is an exception as discussed in Step Two.

a. Authority

The first requirement of Miranda is that police or other

law enforcement officials are required to be the primary actors.

If a private citizen, a corporate employer, or a non-law

enforcement governmental entity questions a suspect about a

crime, Miranda does not apply. For example, if a manager of a

business brings an employee into an interview room, questions

the employee about stealing from the company, and obtains a

confession, the manager is not obligated to provide any

warnings.

Typically, under Miranda and its progeny, the term

“authority” has been limited to the police.98 However, other

categories of law enforcement officials can also fall under this

category, such as prosecutors and probation officers. Despite

this, case law addressing these groups is minimal compared to

that dealing with police. Miranda does not apply to all

government actors. The primary focus of Miranda is to protect

the individual from those governmental actors that have the

power to deprive an individual of constitutional liberties

through unlawful coercion. When an individual comes into

contact with law enforcement in their official capacity, a

psychological factor is created. “[T]he ‘principal psychological

factor contributing to a successful interrogation is privacy—

98. Meg Penrose, Miranda, Please Report to the Principal’s Office, 33 FORDHAM URB. L.J. 775, 777 (2006).

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being alone with the person under interrogation.’”99 The

Supreme Court has recognized that even in the absence of

physical coercion, a police officer’s dominance100 in a setting of

custodial interrogation creates grave risks. Such a setting

hinders a suspect’s ability to refuse to answer questions.

Coercion is determined from the perspective of the

suspect.101 In Illinois v. Perkins, the court discussed what

constitutes a coercive atmosphere.102 In that case, a murder

investigation led police to suspect Lloyd Perkins as the killer.103

At the time of the investigation, Perkins was being

incarcerated at a local jail for an unrelated offense.104 Police

placed an undercover agent (Parisi) in a jail cellblock with

Perkins where Parisi then struck up a conversation with

Perkins and asked if he had ever killed anyone.105 Perkins

made statements that implicated himself in the murder and

those statements were used to aid in convicting Perkins.106 The

Supreme Court held that “the essential ingredients of a ‘police-

dominated atmosphere’ and compulsion are not present when

an incarcerated person speaks freely to someone whom he

believes to be a fellow inmate.”107 Thus, when a suspect does

not perceive that he is speaking with law enforcement, the

concerns of Miranda are alleviated.

The U.S. Supreme Court has never issued an opinion

specifically addressing whether Miranda’s rules, regarding

interrogation by a governmental actor, apply in a school

99. Arizona v. Miranda, 384 U.S. 436, 449 (1966).

100. Id. at 451.

101. Illinois v. Perkins, 496 U.S. 292, 296 (1990); Berkemer v. McCarty, 468 U.S. 420, 442 (1984); Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

102. Perkins, 496 U.S. at 296. In Perkins, Richard Stephenson was murdered. Id. at 294. An investigation led police to suspect Lloyd Perkins as the killer. Id. at 294. Because Perkins was incarcerated at a local jail for an unrelated offense, the police placed an undercover agent (Parisi) in the same cellblock with Perkins. Id. at 294-95. Parisi made contact with Perkins and inquired if Perkins had ever killed anyone. Id. at 295. Perkins made statements that implicated him in the murder and those statements were later used against him. Id. at 295.

103. Id. at 294.

104. Id.

105. Id. at 294-95.

106. Id. at 295.

107. Id. at 296.

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setting.108 However, when a principal (or other school actor)

requires a student to come to her office to question them about

a potential crime, Miranda does not apply. As long as the

principal is acting alone and is not being directed by the police,

then she is not an “authority” for purposes of Miranda. In New

Jersey v. T.L.O.,109 the Supreme Court decided that school

officials acting in furtherance of their educational

responsibilities have greater latitude under the Fourth

Amendment than law enforcement officers do to search

students and their property.110

108. Paul Holland, Schooling Miranda: Policing Interrogation in the Twenty-First Century Schoolhouse, 52 LOY. L. REV. 39, 41 (2006).

109. New Jersey v. T.L.O., 469 U.S. 325, 341–43 (1985).

110. Id. The Court “did not consider the level of suspicion necessary when school officials act ‘in conjunction with or at the behest of law enforcement agencies’ because the school administrator acted alone in searching [the defendant’s] belongings.” Michael Pinard, From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities, 45 ARIZ. L. REV. 1067, 1080–81 (2003). See Holland, supra note 103, at 41 (proceeding to quote an Appellate Division of the New Jersey Superior Court that held that a student’s answer to a principal’s questions were admissible despite the absence of Miranda warnings). The Court held:

We have no doubt, however, that the T.L.O. standards concerning Fourth Amendment searches are equally applicable to defendant’s Fifth Amendment claim. A school official must have leeway to question students regarding activities that constitute either a violation of the law or a violation of school rules. This latitude is necessary to maintain discipline, to determine whether a student should be excluded from the school, and to decide whether further protection is needed for the student being questioned or for others. A principal acting completely independently of any law enforcement agency, such as the one in the case quoted above, cannot possibly convey the sort of compulsion equivalent to that associated with arrest. Thus, there is no need for Miranda’s protections. Accordingly, straightforward Miranda analysis would exempt such questioning from the rules applicable to custodial interrogation. The question of custody need not even be raised because the principal lacks the power that raises Miranda concerns. The T.L.O. opinion--which does not address interrogation or the Fifth Amendment privilege-- simply does not make a meaningful contribution to this straightforward Miranda analysis. The error highlighted here, harmless in this context, becomes consequential when judges seek to extend T.L.O.’s “standards” to questioning

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b. Custody

The second requirement for Miranda to apply is that a

suspect must be in “custody.” Only when a suspect is taken

into custody are the Miranda warnings triggered. Under

Miranda, custody is viewed in light of the Fifth Amendment.

Under a Fourth Amendment analysis there are three types of

contacts between law enforcement and private citizens: (1)

consensual encounter,111 (2) stop/investigative detention (a

seizure justified by reasonable suspicion),112 and (3) actual

arrest or “custody” (a seizure justified by probable cause).113

The Fifth Amendment does not concern itself with the first two

types of contacts. For example, if a police officer pulls over a

vehicle for speeding, approaches the driver, and asks how fast

he was driving, the individual would be “seized” (or “detained”)

under a Fourth Amendment analysis.114 However, the same

individual would not be “in custody” for Fifth Amendment

purposes. As a result, Miranda would not be triggered by this

seizure.

The Supreme Court in Howes v. Fields115 provides

guidance as to what “custody” means for the purposes of

Miranda:

As used in our Miranda case law, “custody” is a

term of art that specifies circumstances that are

conducted by or in the presence of law enforcement officers, i.e., individuals with the power to arrest and whose actions carry a threat of compulsion no principal acting alone can ever convey.

Holland, supra note 103, at 59–60.

111. See Flordia v. Bostick, 501 U.S. 429 (1991); U.S. v. Drayton, 536 U.S. 194 (2002); I.N.S. v. Delgado, 466 U.S. 210 (1984).

112. See California v. Hodari D., 499 U.S. 621 (1991); U.S. v. Mendenhall, 466 U.S. 544 (1980); Terry v. Ohio, 392 U.S. 1, (1968); Kaupp v. Texas, 538 U.S. 626 (2003).

113. Terry v. Ohio, 392 U.S. 1 (1968); Dunaway v. New York, 442 U.S. 200 (1979); Camara v. Municipal Court, 387 U.S. 523 (1967).

114. See Berkemer v. McCarty, 468 U.S. 420 (1984).

115. Howes v. Fields, 132 S. Ct. 1181 (2012).

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thought generally to present a serious danger of

coercion. In determining whether a person is in

custody in this sense, the initial step is to

ascertain whether, in light of “the objective

circumstances of the interrogation,” a

“reasonable person [would] have felt he or she

was not at liberty to terminate the interrogation

and leave.” And in order to determine how a

suspect would have “gauge[d]” his “freedom of

movement,” courts must examine “all of the

circumstances surrounding the interrogation.”

Relevant factors include the location of the

questioning.

Determining whether an individual’s freedom of

movement was curtailed, however, is simply the

first step in the analysis, not the last. Not all

restraints on freedom of movement amount to

custody for purposes of Miranda. We have

“decline[d] to accord talismanic power” to the

freedom-of-movement inquiry, and have instead

asked the additional question whether the

relevant environment presents the same

inherently coercive pressures as the type of

station house questioning at issue in Miranda.

“Our cases make clear . . . that the freedom-of-

movement test identifies only a necessary and

not a sufficient condition for Miranda

custody.”116

Thus, the test of whether a suspect is in custody is

analyzed using the objective reasonable suspect test.

Two discrete inquiries are essential to the

determination: first, what were the

circumstances surrounding the interrogation;

and second, given those circumstances, would a

reasonable person have felt he or she was at

116. Id. at 1189–90.

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liberty to terminate the interrogation and leave.

Once the scene is set and the players’ lines and

actions are reconstructed, the court must apply

an objective test to resolve the ultimate inquiry:

“[was] there a ‘formal arrest or restraint on

freedom of movement’ of the degree associated

with formal arrest.” 117

Ultimately, the determining factor of whether a suspect is

in custody for the purposes of receiving Miranda protections is

whether there is a formal arrest or “restraint on freedom of

movement” to the degree associated with a formal arrest.118

All circumstances surrounding the situation should be

examined, including how a reasonable person in the suspect’s

position would perceive his or her freedom to leave.119 The

subjective views of both the interrogating officers and those of

the person being questioned are irrelevant.120 The test involves

no consideration of the “actual mindset” of the particular

suspect being questioned by the police.121 Five factors are often

117. Thompson v. Keohane, 516 U.S. 99, 112 (1995) (alteration in original) (internal quotation marks and footnote omitted). See J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402 (2011); Yarborough v. Alvarado, 541 U.S. 652, 662–63 (2004); Stansbury v. California, 511 U.S. 318, 323 (1994); Berkemer v. McCarty, 468 U.S. 420, 442 n.35 (1984).

118. California v. Beheler, 463 U.S. 1121, 1125 (1983) (citing Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).

119. J.D.B., 131 S. Ct. at 2397 (citing Stansbury, 511 U.S. at 322,325).

120. Stansbury, 511 U.S. at 323.

121. See Yarborough, 541 U.S. at 667; see also Beheler, 463 U.S. at 1125 n.3. For example in Illinois v. Perkins, the government placed an undercover agent in the cell of Perkins. Illinois v. Perkins, 496 U.S. 292, 296 (1990). At the time, Perkins was incarcerated on charges unrelated to the subject of the government’s investigation (a murder). Id. at 294. While the agent masqueraded as Perkins cellmate, Perkins made statements to the agent describing at length the details of the murder. Id. at 295. The Supreme Court ruled in this particular situation, a reasonable suspect would not believe they were in custody. Id. at 300. “Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates.” Id. at 298. Because Perkins was not in custody, one of the requirements was not met and, thus, Miranda was not applicable. Id. at 300. However, even though the use of undercover agents may not be violative of Miranda, such situations can create a violation of a defendant’s Sixth Amendment right to counsel if the defendant has been already been charged. Massiah v. United States, 377 U.S. 201, 206 (1964).

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considered to determine whether or not a suspect is free to

leave: (1) whether the officers told the suspect he was under

arrest or free to leave; (2) the location or physical surroundings

of the interrogation;122 (3) the length of the interrogation; (4)

122. The location of the interrogation plays an important role in determining custody for the purposes of Miranda. The objective reasonable suspect test, regarding whether a suspect believes they are free to leave, is also employed when examining the location of the interrogation. The majority of opinions discuss three primary locations: (1) police stations; (2) residential encounters; and (3) encounters on the street. Oregon v. Elstad, 470 U.S. 298, 300–01 (1985) (suspect’s residence); Berkemer, 468 U.S. at 442– 43 (street encounter); Mathiason, 429 U.S. at 493-94 (police station). Hospitals, schools, and places of employment are other common locations, however, there are no U.S. Supreme Court cases relating to these settings. See WAYNE LAFAVE ET AL., CRIMINAL PROCEDURE, 2 CRIM. PROC. § 6.6(e) (3d ed. Supp. 2014).

Police station interrogations and arrests. When a suspect is taken to a police station, he or she is likely “in custody” for Miranda purposes. See Howes v. Fields, 132 S. Ct. 1181, 1189–90 (2012). When a suspect has been advised that he or she is under arrest and is escorted to the police station, the suspect is clearly in custody. An objective reasonable person would not believe they were free to leave. From the moment the police place that individual under arrest, they are in custody for the purposes of Miranda. This means if a suspect is arrested and placed in handcuffs at the crime scene, they are in custody from that point forward. When a suspect is placed in the back of a patrol car to be taken down to the police station (even if not necessarily under arrest), more likely than not, such individual is in custody for the purposes of Miranda.

There is a distinction, however, when a suspect voluntarily comes to the police station on their own accord in response to a police request. In such situations, the suspect is typically not in custody for Miranda purposes. Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977). In that case, Carl Mathiason was called to the police station to be questioned about a burglary. Id. at 493. Mathiason and an officer met in the hallway, shook hands, and went into an office. Id. The officer advised Mathiason that he was not under arrest and that the officer desired to talk with him about a burglary. Id. Mathiason sat there for a few minutes and ultimately confessed to the crime. Id. The officer never advised Mathiason of his Miranda rights prior to the confession. Id. at 494. The Supreme Court held that Mathiason was not in custody because he was not “deprived of his freedom of action in any significant way.” Id. at 495.

In Howes, the Supreme Court held that simply because someone is in prison or jail does not automatically mean they are “in custody” for the purposes of Miranda. Howes, 132 S. Ct. at 1188-89. There, Randall Fields (the suspect), was serving a sentence in a Michigan jail. Id. at 1185. A jailer escorted Fields to a conference room where two sheriff’s deputies questioned him regarding allegations he engaged in sexual conduct with a twelve-year-old boy (prior to his incarceration). Id. In order for Fields to get to the conference room, he had to traverse down one floor and pass through a locked door. Id. at 1186. At the beginning of the interview, the deputies advised

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whether the officers used coercive tactics such as a hostile

manner of speech, the display of weapons, or physical restraint

of the suspect’s movement; and (5) whether the suspect

voluntarily submitted to questioning.123

c. Interrogation

The third requirement for Miranda is that there be

interrogation—defined as questioning of a suspect that is likely

to illicit an incriminating response.124 Stated differently,

Fields he was free to leave and return to his cell. Id. Fields remained free of handcuffs throughout the duration of the interview, which lasted five to seven hours. Id. About half-way through, officers confronted Fields about the allegations of abuse. Id. Fields eventually confessed to engaging in sexual acts with the boy. Id. The Court indicated that “Miranda adopted a ‘set of prophylactic measures’ designed to ward off “the ‘inherently compelling pressures’ of custodial interrogation,” but Miranda did not hold that such pressures are always present when a prisoner is taken aside and questioned about events outside the prison walls.” Id. at 1188.

Encounters at one’s residence. When an encounter takes place at a suspect’s home, they are probably not in custody, unless they have been placed under arrest. Beckwith v. United States, 425 U.S. 341 (1976).

Street Encounters. Another common location where law enforcement and suspects interact is on the street. The general rule is that the police can engage in questioning of persons near the scene of a crime without giving Miranda warnings. During these encounters, there are times in which the police decide to detain a person, not for the specific known crime, but rather, because they are acting suspiciously. When an officer does this, typically the person is not in custody for the purposes of Miranda. See Terry v. Ohio, 392 U.S. 1 (1968).

123. United States v. King, 604 F.3d 125, 138 (3d Cir. 2010).

124. An incriminating response as defined by the Court is “any response—whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial.” Rhode Island v. Innis, 446 U.S. 291, 301 n.5 (1980). As the Court observed in Miranda:

No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory’. If a statement made were in fact truly exculpatory, it would, of course, never be used by the prosecution. In fact, statements merely intended to be

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Miranda applies only when a confession results from

questioning or conduct intended to elicit an incriminating

response. For example, if an officer arrests an individual for

selling methamphetamine and, while driving the suspect to the

police station, engages in a conversation about the Boise State

Broncos, the suspect is not being interrogated. The U.S.

Supreme Court clarified this standard in Rhode Island v. Innis:

[T]he Miranda safeguards come into play

whenever a person in custody is subjected to

either express questioning or its functional

equivalent. That is to say, the term

“interrogation” under Miranda refers not only to

express questioning, but also to any words or

actions on the part of the police (other than those

normally attendant to arrest and custody) that

the police should know are reasonably likely to

elicit an incriminating response from the suspect.

The latter portion of this definition focuses

primarily upon the perceptions of the suspect,

rather than the intent of the police.125

As with the custody requirement, the test is an objective

inquiry that does not consider the officer’s intent or the

individual suspect’s understanding. The questioning must be

designed to elicit an incriminating response. This means that a

volunteered statement would not be covered by Miranda. If a

suspect spontaneously makes an incriminating statement

without prompting, such statement is admissible per

Miranda.126 A voluntary statement may be used regardless of

exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.

Id. (citing Miranda v. Arizona, 384 U.S. 436, 476–77 (1966)).

125. Innis, 446 U.S. at 300.

126. Colorado v. Connelly, 479 U.S. 157 (1986). In Connelly, Francis

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whether the suspect is in custody or not in custody.

Interrogation for the purposes of Miranda includes not just

direct questioning but also indirect questioning. If an officer

says specific words or performs some actions that an officer

“should know are reasonably likely to elicit an incriminating

response from the suspect,” then it would be deemed

“interrogation.”127 The test is whether an objectively

reasonable person would believe that the actions (or words)

indirectly conveyed are reasonably likely to elicit an

incriminating response.

An interrogation must be conducted by police or an agent

Connelly randomly approached a Denver police officer and stated that he had murdered someone and he wanted to talk about it. Id. at 160. The officer Mirandized him and Connelly subsequently told the officer that the “voice of God” told him to confess to the murder. Id. at 160-61. The Court held this was a voluntary and non-coerced answer and the statements came in. Id. at 167.

127. In Innis, the defendant Thomas Innis robbed a taxicab driver with a sawed-off shotgun. Innis, 446 U.S. at 293. The driver contacted officers and identified a picture of Innis. Id. When the police subsequently arrested Innis he did not have the shotgun on his person. Id. at 294. Officers read him his rights and Innis stated he wanted an attorney. Id. Three officers placed him in the back of their patrol car and began driving him to the police station. Id. While en route, two officers conversed among themselves about the missing shotgun. Id. One of the officers stated that there were “a lot of handicapped children running around in this area” because a school for such children was located nearby, and “God forbid one of them might find a weapon with shells and they might hurt themselves.” Id. at 294-95. Innis interrupted the conversation telling the officers that they should turn around and that he could show them where the gun was located. Id. at 295. The Supreme Court held:

Given the fact that the entire conversation appears to have consisted of no more than a few off hand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent’s contention that, under the circumstances, the officers’ comments were particularly “evocative.” It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.

Id. at 303.

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of the police.128 If police intentionally set up a compromising

situation for the purpose of inducing a suspect to incriminate

themselves, then it is likely that an “interrogation” will have

taken place.129 However, when police allow a situation to

develop that is likely to prompt a suspect to provide an

incriminating statement, typically Miranda does not apply.

In Arizona v. Mauro,130 William Mauro was in police

custody being investigated for the murder of his son. Mauro

was provided Miranda warnings and conveyed to police that he

did not want to answer any questions until a lawyer was

present.131 All questioning stopped, detectives left the room,

and Mauro’s wife, who was being questioned in another room,

asked if she could speak to her husband.132 The Detectives

agreed and allowed her to talk with Mauro in a room with an

128. When questions are asked by people other than the police, Miranda does not apply, unless the questions are asked under the direction of police. For example, if a private investigator, or the victim of a crime, asks a suspect questions and the suspect provides incriminating statements, they can be used against that suspect, despite a lack of Miranda warnings.

129. In Missouri v. Seibert, the Supreme Court invalidated the “question-first” interrogation technique by law enforcement. Missouri v. Seibert, 542 U.S. 600 (2004). Patrice Seibert’s twelve-year-old son, Jonathan, had cerebral palsy. Id. at 604. When he died in his sleep, Seibert was fearful that charges would be brought against her for neglect. Id. at 604. Seibert, with the assistance of her two teenage sons, devised a plan to incinerate the body of Jonathan by burning their mobile home. Id. at 604. They asked Donald Rector, a mentally ill teenager who was living with the family, to remain at the home with Jonathan, without telling Donald that Jonathan was dead. Id. at 604. Seibert’s son and a friend set the home afire, ultimately killing Donald. Id. at 604. When police ultimately arrested Seibert, they brought her into an interrogation room. Id. at 604. Officer Hanrahan refrained from giving Miranda warnings and questioned Seibert for thirty to forty minutes. Id. at 605. Seibert ultimately confessed to the crime. Id. at 605. After she confessed, Officer Hanrahan turned on a tape recorder, provided Seibert Miranda warnings, and obtained a signed waiver of her rights. Id. at 605. Seibert thereafter provided a full confession on tape. Id. at 605. In short, law enforcement intentionally started the interrogation without first reading Miranda warnings, and thereafter, obtained a confession. Id. at 605-06. Then, knowing the story, officers went back, read the warnings, and had the suspect repeat the same story. Id. at 606. The Court held that this “question-first” tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and thus, is not permitted. Id. at 617.

130. Arizona v. Mauro, 481 U.S. 520 (1987).

131. Id. at 522.

132. Id.

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officer present and the conversation being tape-recorded.133 In

conversing with his wife, Mauro made incriminating

statements.134 The Supreme Court held this did not constitute

interrogation because Mauro’s wife was not acting at the

direction of the police.135 The police did not utilize any coercive

design to extract a confession in this particular circumstance.

2. Step Two: Exceptions

If one of the three factors (authority, custody, and

interrogation) is not met, then the rules promulgated in

Miranda do not apply and the only potential issue surrounding

the confession is whether it was voluntarily given. If all three

factors do exist, the next step in the analysis is whether one of

the “exceptions” apply in which the Miranda warnings do not

need to be given. Case law suggests four exceptions: (1) routine

traffic stops, (2) public safety, (3) officer safety/routine Terry

stops, and (4) routine booking questions and questions of

identification.

a. Routine Traffic Stops

The roadside questioning of a motorist who has been

detained as a result of a routine traffic stop does not constitute

“custodial interrogation” for the purposes of Miranda.136

Although an ordinary traffic stop curtails the “freedom of

action” of the detained motorist and imposes some pressures on

the detainee to answer questions, such pressures do not

sufficiently impair the detainee’s exercise of his privilege

against self-incrimination to require that he be warned of his

constitutional rights. A traffic stop is usually brief and the

motorist expects that, while he may be given a citation, in the

end he will most likely be allowed to continue on his way.

Moreover, the typical traffic stop is conducted in public, and

the atmosphere surrounding it is substantially less “police

133. Id.

134. Id. at 522-23.

135. Id. at 529-30.

136. Berkemer v. McCarty, 468 U.S. 420, 429 (1984).

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dominated” than that surrounding the types of interrogation at

issue in Miranda and subsequent cases in which Miranda has

been applied.137

In Berkemer v. McCarty,138 after observing McCarty’s car

weaving in and out of a highway lane, an officer of the Ohio

State Highway Patrol forced him to stop and asked him to get

out of the car.139 Upon noticing that McCarty was having

difficulty standing, the officer concluded that McCarty would

be charged with a traffic offense and would not be allowed to

leave the scene.140 However, the officer never told McCarty

that he would be taken into custody.141 When McCarty failed a

field sobriety test, the officer asked if he had been using

intoxicants and McCarty replied he consumed two beers and

smoked marijuana a short time before.142 The officer then

formally arrested McCarty and drove him to a county jail

where a blood test failed to detect any alcohol in McCarty’s

blood.143 The U.S. Supreme Court held that McCarty was not

necessarily in custody from the moment he was required to exit

his vehicle.144 This was because a reasonable person in

McCarty’s position would have still felt they were free to

leave.145

137. Id. at 438-39.

138. Id. at 420.

139. Id. at 423.

140. Id.

141. Id.

142. Berkemer, 468 U.S. at 423.

143. Id.

144. Id. at 442.

145. Id. at 437-38. The Court states:

Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced “to speak where he would not otherwise do so freely.” First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist’s expectations, when he sees an officer’s lights flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration; that he may then be given a citation, but that in the end, he most likely will be allowed to continue on his way. In this respect, questioning incident to an ordinary traffic stop is quite

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Under Brendlin v. California,146 the driver and all

passengers in a vehicle are seized for purposes of the Fourth

Amendment, but are not necessarily “in custody” for the

purposes of the Fifth Amendment.

Traffic stops utilize the same objective reasonable suspect

test. If an objective reasonable motorist was in the suspect’s

position, would she believe that she was free to leave. Usually,

a driver reasonably believes that she will be free to leave after

a ticket has been issued to her. This belief changes after the

officer notifies the motorist that she is under arrest.

b. Public Safety Exception

An officer is not required to give Miranda warnings when

the questioning is “reasonably prompted by a concern for the

different from a stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek.

Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of the officer and motorist. This exposure to public view both reduces the ability of an unscrupulous officer to use illegitimate means to elicit self-incriminating statements and diminishes the motorist’s fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two officers further mutes any sense of vulnerability. In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda itself.

See Berkemer, 468 U.S. at 437–39 (citations omitted).

146. Brendlin v. California, 551 U.S. 249 (2007).

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public safety.”147 In New York v. Quarles, two officers were

patrolling when a young woman approached their car telling

them that she had just been “raped by a black male,

approximately six feet tall, who was wearing a black jacket

with the name ‘Big Ben’ printed in yellows on the back.”148 She

said that he had just entered a supermarket and was carrying

a gun.149 The officers drove to the supermarket and entered

the store.150 They approached Benjamin Quarles at gun

point.151 Quarles was apprehended, placed under arrest, put

into handcuffs, and frisked.152 Officers discovered Quarles

wore a shoulder holster but did not locate a gun.153 One of the

officers asked Quarles where the gun was. Quarles nodded his

head and said, “the gun is over there.”154 After the officer

retrieved the gun, the officer Mirandized Quarles, who then

asked to speak with an attorney.155

On appeal, Quarles sought to suppress his communication

regarding the location of the gun and the fruits therefrom.156

The Supreme Court indicated although all three factors were

present, in the interest of public safety, Miranda warnings

were not necessary.157 The Quarles opinion created the “public

safety exception” for Miranda. The rationale is that when law

enforcement is attempting to obtain information for public

safety, rather than seeking to obtain an incriminating

statement, there is no need for warnings, because “a threat to

public safety outweighs the need for the prophylactic rule

protecting the Fifth Amendment’s privilege against

self-incrimination.”158 As explained by the Court:

147. New York v. Quarles, 467 U.S. 649, 656 (1984).

148. Id. at 651.

149. Id. at 651-52.

150. Id. at 652.

151. Id.

152. Id.

153. Quarles, 467 U,S,. at 652.

154. Id. at 652.

155. Id.

156. Id. at 653.

157. Id. at 657-68.

158. Id. at 657. The existence of a threat to public safety is determined by an objective inquiry. Id. at 656. It does not matter what the officer’s subjective belief or intent was at the time. Id. The test is what a reasonable officer would have perceived in light of the circumstances. Id.

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We hold that on these facts there is a “public

safety” exception to the requirement that

Miranda warnings be given before a suspect’s

answers may be admitted into evidence, and that

the availability of that exception does not depend

upon the motivation of the individual officers

involved.159

c. Officer Safety/Terry Stops

In Terry v. Ohio,160 the Supreme Court outlined that

during a stop or investigatory detention, an officer may conduct

a limited frisk of a suspect for weapons when the officer has

reasonable, articulable suspicion that the suspect has been

engaged in, or is about to be engaged in, criminal activity and

there is a reasonable belief that the suspect is armed and

presently dangerous.161 In the Terry opinion that came two

years after Miranda, there is no discussion indicating warnings

are required in situations where Terry would apply. Thus,

such situations are not viewed as “custodial” for purposes of

Miranda.

d. Routine Booking Questions & Questions of

Identification

Routine questions asked for the purpose of identification

only do not require Miranda warnings. Although identification

is typically an element of a crime and can be incriminating,

questions about a defendant’s name, address, height, weight,

eye color, and other identifying questions do not require the

159. New York v. Quarles, 467 U.S. at 655–56. See Marc Reiner, The public safety exception to Miranda: Analyzing Subjective Motivation, 93 MICH. L. REV. 2377 (1995); Elizabeth Williams, What Circumstances Fall Within Public Safety Exception to General Requirement, Pursuant to or as Aid in Enforcement of Federal Constitution’s Fifth Amendment Privilege Against Self-Incrimination, to Give Miranda Warnings Before Custodial Interrogation –post-Quarles Cases, 142 A.L.R. FED. 229 (1997).

160. Terry v. Ohio, 392 U.S. 1 (1968).

161. See Adams v. Williams, 407 U.S. 143, 146 (1972).

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warnings. Questions seeking identifying information are

typical in any police encounter. It is common for police to ask

questions inquiring into an individual’s name or address when

they are first stopped as well as when they are arrested and

booked.162 Police are required to have a record of the suspect’s

identity before a number of actions can even take place, such as

an arrest and booking. This biographical data thus falls into

an exception that the Supreme Court has created—often

referred to as “routine booking information.”163

The Supreme Court held in Pennsylvania v. Muniz164 that

answers to questions eliciting a suspect’s name, address,

height, weight, eye color, date of birth, and current age are

routine booking questions and do not require Miranda

warnings. In Muniz, a patrol officer observed Inocencio Muniz

and a passenger parked in a car on the shoulder of a

highway.165 When the officer inquired whether Muniz needed

assistance, the officer smelled alcohol on his breath.166 The

officer told Muniz to keep the vehicle parked until his condition

improved.167 As the officer walked back to his vehicle, Muniz

drove off.168 The officer pursued him down the highway and

pulled him over.169 After conducting a DUI investigation, the

officer arrested Muniz and took him to jail.170 While at the jail,

a booking officer asked Muniz his name, address, height,

weight, eye color, date of birth, and current age.171 Muniz

responded to each of these questions, stumbling over his

address and age.172 The officer then asked Muniz, “Do you

162. Meghan S. Skelton & James G. Connell III, The Routine Booking Question Exception to Miranda, 34 U. BALT. L. REV. 55, 55 (2004).

163. Pennsylvania v. Muniz, 496 U.S. 582, 584 (1990). It should be noted that Muniz was a plurality opinion. Id. So although a majority of the Supreme Court has not signed off on this exception, this exception has become a staple to Fifth Amendment jurisprudence. Id.

164. Id. at 584.

165. Id. at 585

166. Muniz, 496 U.S. at 585.

167. Id.

168. Id.

169. Id.

170. Id.

171. Id. at 585-86.

172. Muniz, 496 U.S. at 586.

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know what the date was of your sixth birthday?”173 After

Muniz offered an inaudible reply, the officer repeated, “When

you turned six years old, do you remember what the date

was?”174 Muniz responded, “No, I don’t.”175

A plurality of the Court decided routine booking questions

are an exception to Miranda as such questions are designed to

secure the “biographical data necessary to complete booking or

pretrial services.”176

3. Step Three: The Warnings

If all three factors (authority, custody, and interrogation)

apply, and there is no exception identified, then the suspect

must be advised of the four warnings prescribed in Miranda.

The four warnings that are required once Miranda applies are

as follows:

1. He has the right to remain silent;

2. Anything he says can be used against him in a

court of law;

3. He has the right to the presence of an attorney;

and

4. If he cannot afford an attorney, one will be

appointed for him prior to any questioning if he

desires.

If the police do not provide these four warnings during a

custodial interrogation, then any statement obtained is

inadmissible in a prosecution’s case-in-chief, even if the

statement was voluntary. However, the general rule is that

voluntary statements taken in violation of Miranda can be

introduced to impeach the testimony of the defendant if he

testifies at trial.

173. Id.

174. Id.

175. Id. at 586.

176. Id. at 601. Although the court held that name, address, height, weight, eye color, date of birth, and age were admissible, the question about Muniz’s sixth birthday was not covered by the “routine booking” exception. Id.

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Recently, in Florida v. Powell,177 the U.S. Supreme Court

held that the form of the warnings was not as important as the

content conveyed. Thus, when giving the Miranda warnings, it

is not necessary to read them in the order as delineated in the

Miranda opinion, nor to recite them verbatim.178 All that is

required is for an officer to “clearly inform” the suspect of them

prior to custodial interrogation. Law enforcement is permitted

to use different words than those prescribed in Miranda as long

as they communicate the same essential message.179 If the

warnings are “sufficiently comprehensive and comprehensible

177. Florida v. Powell, 559 U.S. 50 (2010). On August 10, 2004, law enforcement officers in Tampa, Florida, seeking to apprehend respondent Kevin Powell in connection with a robbery investigation, entered an apartment rented by Powell’s girlfriend. Id. at 53. After spotting Powell coming from a bedroom, the officers searched the room and discovered a loaded nine-millimeter handgun under the bed. Id. The officers arrested Powell and transported him to the Tampa Police headquarters. Id. Once there, and before asking Powell any questions, the officers read Powell the standard Tampa Police Department Consent and Release Form 310. Id. The form states:

You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.

Id. at 54 (emphasis added). Acknowledging that he had been informed of his rights, that he “understood them,” and that he was “willing to talk” to the officers, Powell signed the form. Id. He then admitted that he owned the handgun found in the apartment. Id. Powell knew he was prohibited from possessing a gun because he had previously been convicted of a felony, but said he had nevertheless purchased and carried the firearm for his protection. Id. The Supreme Court held that the Miranda warnings provided adequately informed Powell of his right to consult with a lawyer and to have the lawyer with him during the interrogation, even though they were not verbatim recitations of language from Miranda. Id. at 60. When administering Miranda warnings, the language must reasonably convey the content of Miranda to a suspect. Id. Although the warnings were not the clearest iteration, they were both comprehensive and comprehensible when viewed in a commonsense reading. Id. at 63.

178. Id. at 60. See Duckworth v. Eagan, 492 U.S. 195 (1989); California v. Prysock, 453 U.S. 355, 359 (1981).

179. Powell, 559 U.S. at 64.

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when given a commonsense reading,” they satisfy Miranda.180

B. Second Prong: Waiver and Invocation of Miranda Rights

The second prong of the Miranda analysis is whether or

not the suspect waived his constitutional rights or invoked

them. After the warnings have been given during a custodial

interrogation by the police, the suspect may invoke or waive his

rights to an attorney and to remain silent. Generally, a suspect

may exercise his right to have a lawyer present or to remain

silent at any time during the questioning. This means a

suspect could start talking to police and then decide halfway

through the questioning to invoke. It also means the

opposite—they may invoke right at the start, but then notify

the police that they want to speak. Step Four examines what

constitutes invocation and what constitutes a valid waiver.

1. Step Four: Invocation of Rights or Waiver of Rights

When a suspect invokes his right to remain silent or to

speak with an attorney, the police must immediately cease the

interrogation. However, the invocation must be clearly and

explicitly made. Simply remaining silent is not sufficient to

invoke the right to remain silent.181 This also means that a

suspect must be extremely clear when they request an

attorney. There is a significant difference between “I want an

attorney” versus “Officer, do you think I should speak with an

attorney?” Finally, when a suspect waives the right to remain

silent or to have an attorney present, the waiver must be

knowingly and intelligently made.

Step Four explores the difference between an individual

invoking their constitutional rights or waiving them under

Miranda. The choice a suspect makes determines the direction

the law enforcement officer must follow.

a. Invocation

180. Id. at 63.

181. Berghuis v. Thompkins, 560 U.S. 370 (2010).

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The protection that Miranda provides to a suspect is that

when the suspect asserts either of his rights, the prosecution

may not introduce any facts or evidence that the defendant

remained silent while undergoing police questioning post-

arrest. When a suspect invokes his Miranda rights the police

must immediately cease the interrogation.182 The rationale of

this rule, often referred to as the Edwards rule,

[I]s that once a suspect indicates that “he is not

capable of undergoing [custodial] questioning

without advice of counsel,” “any subsequent

waiver that has come at the authorities’ behest,

and not at the suspect’s own instigation, is itself

the product of the ‘inherently compelling

pressures’ and not the purely voluntary choice of

the suspect.” . . . The Edwards presumption of

involuntariness ensures that police will not take

advantage of the mounting coercive pressures of

“prolonged police custody,” by repeatedly

attempting to question a suspect who previously

requested counsel until the suspect is “badgered

into submission.”183

This invocation must be clearly explicit. The rule

prescribed by the Court is that a suspect’s request must be

unambiguous and unequivocal.184 In Davis v. United States,185

182. Michigan v. Mosley, 423 U.S. 96, 103–04 (1975) (officers must cease questioning once a suspect invokes his right to remain silent). See Edwards v. Arizona, 451 U.S. 477, 484–85 (1981) (an accused “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police”). The Court in Berghuis confirmed the rule articulated in Davis—that there needs to be a clear invocation of ones rights—applies to both the right to remain silent and the right to an attorney. Berghuis v. Thompkins, 560 U.S. 370 (2010).

183. Maryland v. Shatzer, 559 U.S. 98, 104–05 (2010) (citations omitted) (citing Arizona v. Roberson, 486 U.S. 675, 681 (1988)).

184. See Davis v. United States, 512 U.S. 452, 459 (1994). The court states:

A suspect who knowingly and voluntarily waives his right to counsel after having that right explained to him has

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the Supreme Court outlined that if a suspect does not clearly

assert his right to have counsel present during custodial

interrogation, then the ambiguous request does not invoke the

protections of Miranda. Robert Davis was a navy

serviceman.186 After a fight at a pool hall on a naval base,

Davis was brought in for questioning.187 Investigators advised

Davis of his Miranda rights and Davis agreed to waive them,

both orally and in writing.188 As the investigation proceeded,

Davis stated, “Maybe I should talk to a lawyer?”189 The

investigators reminded Davis of his rights and then proceeded

with an additional hour of questioning.190 Davis provided

incriminating statements. The Court indicated that if a

suspect does not make an unambiguous request, the

questioning does not have to stop.191 Further, the police do not

have to ask clarifying questions to determine if the suspect

really does want a lawyer. “A statement either is such an

assertion of the right to counsel or it is not.”192 Although a

suspect need not speak with a law enforcement official, “he

must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an

attorney.193 If the statement fails to meet the requisite level of

clarity, Edwards does not require that the officers stop

questioning the suspect.”194

indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection—if a suspect subsequently requests an attorney, questioning must cease—it is one that must be affirmatively invoked by the suspect.

Id. at 460–61.

185. Davis v. United States, 512 U.S. 452, 459 (1994).

186. Id. at 454.

187. Id.

188. Id. at 455.

189. Id.

190. Davis v. United States, 512 U.S. 452, 455 (1994).

191. Edwards v. Arizona, 451 U.S. 477 (1981).

192. Smith v. Illinois, 469 U.S. 91, 97-98 (1984) (citing Justice Simon’s dissent in People v. Smith, 466 N.E.2d 236, 241 (1984)).

193. Davis, 512 U.S. at 459.

194. Id. See Moran v. Burbine, 475 U.S. 412, 433 n. 4 (1986).

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Likewise, just because a suspect remains silent does not

mean they are invoking their right to remain silent.195 This

also means that a suspect must be extremely clear both when

they request an attorney and when they desire to remain

silent. As iterated above, there is a significant distinction

between “I want an attorney” versus “Maybe I should talk to a

lawyer?”

In Maryland v. Shatzer,196 the Supreme Court created a

“break-in-custody” exception upon a proper invocation of one’s

rights. In Shatzer, police received information from a social

worker that Michael Shatzer, Sr. had sexually abused his

three-year-old son.197 At the time law enforcement learned this

information, Shatzer was incarcerated at the Maryland

Correctional Institution, serving a sentence on an unrelated

child-sexual-abuse offense.198 Detective Blankenship went to

the correctional institution to question Shatzer.199 Before

questioning began, Detective Blankenship advised Shatzer of

his Miranda rights.200 Shatzer invoked his right to an attorney

immediately.201 Detective Blankenship left and thereafter

195. Salinas v. Texas, 133 S.Ct. 2174, 2181 (2013). See also Berghuis v. Thompkins, 560 U.S. 370 (2010). In Berghuis, officers were investigating a murder. Id. at 374. An officer advised Van Chester Thompkins of his rights using a form. Id. 374-75. The form included the four warnings required by Miranda and an additional warning not required by Miranda: “You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Id. at 375. Thompkins read the fifth warning, but declined to sign the form. Id. During the interrogation, Thompkins never stated that he wanted to remain silent, did not want to talk with the officers, or wanted a lawyer. Id. About two hours and forty-five minutes into the interrogation, during which Thompkins was mostly silent, an officer asked him if he “prays to God to forgive him for shooting that boy down?” Id. at 376. In response to this question, Thompkins said “yes” and looked away. Id. The interview ended shortly thereafter. Id. Since Thompkins never said he wanted to remain silent, the statements were held admissible. Id. at 388-89. Salinas takes the Thompkins case one step further, saying that the prosecution’s use of Salinas’s noncustodial silence did not violate the Fifth Amendment, and that there is no exception to invocation requirement for a witness to who declines to give an answer to police. Salinas, 133 S.Ct. at 2181.

196. Maryland v. Shatzer, 559 U.S. 98 (2010).

197. Id. at 100.

198. Id. at 101.

199. Id.

200. Id.

201. Id.

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closed the investigation.202 Two years and six months later, the

same social worker referred more specific allegations to

police.203 Detective Hoover was assigned the case.204 Detective

Hoover went back to the correctional facility and again advised

Shatzer of his Miranda rights.205 This time, Shatzer signed a

written waiver and proceeded to confess to the sexual abuse of

his son.206 The State used the confession to convict Shatzer.207

On appeal, Shatzer argued that since he had invoked his rights

two-and-a-half years earlier, that Detective Hoover should not

have been allowed to question him.208

The Supreme Court concluded that the Edwards rule

should not be extended indefinitely.209 When a break in

custody is of “sufficient duration to dissipate its coercive

effects,” police may reinitiate questioning.210 The Court felt

that “law enforcement officers need to know, with certainty and

beforehand, when renewed interrogation is lawful.”211

Ultimately, the Court determined that fourteen days was the

appropriate amount of time that had to lapse to have a proper

break in custody.212 “That provides plenty of time for the

suspect to get reacclimated to his normal life, to consult with

friends and counsel, and to shake off any residual coercive

effects of his prior custody.”213

b. Waivers

The Fifth Amendment protects an individual’s right

against self-incrimination and an individual’s right to counsel

in custodial interrogation.214 Because these are the rights of

202. Shatzer, 559 U.S. at 101.

203. Id.

204. Id.

205. Id.

206. Id. at 101-02.

207. Id. at 102.

208. Shatzer, 559 U.S. at 103.

209. Id. at 109.

210. Id.

211. Id. at 110.

212. Id.

213. Id.

214. U.S. CONST. amend. IV.

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the individual, such individual can waive them. Waiver can be

either expressed or implied.

Express waivers are the cleanest method. Customarily, an

express waiver is in written form that provides the rules and

warnings prescribed by Miranda and its progeny. This allows

for the suspect to review the warning and then sign the waiver

acknowledging he understands them and is thereby waiving

the right to an attorney as well as the right to remain silent.

As long as there is no coercion on the part of law enforcement,

the express waiver leaves little room for dispute. Even if a

suspect refuses to sign a written waiver, this does not

necessarily negate a waiver of Miranda rights through a

subsequent course of conduct.215 For example, if a suspect

provides law enforcement with an oral statement, while

refusing to sign a written transcript of that statement, it does

not necessarily mean that the suspect failed to waive his

rights.216

In practice, however, most waivers are implied. Implied

waivers leave room for more argument on both sides. It should

be noted that police are not required to obtain an express

waiver before commencing an interrogation.217 An implied

waiver occurs when a suspect does not expressly state that he

is waiving his rights, but rather, his words or conduct indicate

an abandonment of those rights.218 Prosecutors carry the

burden of demonstrating that a suspect was aware of his rights

and knowingly and voluntarily waived them.

Further, just as only the suspect can waive his or her

rights, the invocation must also be executed by the suspect

215. North Carolina v. Butler, 441 U.S. 369 (1979). In Butler, the Supreme Court stated that an “express” waiver is not required per Miranda. Id. at 375-76. The only question is whether the individual waived the exercise of one of his rights. Id. at 374.

216. Connecticut v. Barrett, 479 U.S. 523 (1987). In Barrett, the suspect was in custody on suspicion of sexual assault and was advised of his Miranda rights three times. Id. at 525. On each occasion, after signing and dating an acknowledgement that he had been given his rights, he advised police he would not make a written statement but would talk about the crime. Id. After the second and third time the rights were advised, he indicated that he would not make a written statement outside the presence of an attorney, and then proceeded to orally admit his involvement in the sexual assault. Id.

217. Berghuis v. Thompkins, 560 U.S. 370, 387-88 (2010).

218. Id.

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personally. That is, someone else cannot assert either the right

to an attorney or the right to remain silent on behalf of a

suspect. The Supreme Court addressed this issue in Moran v.

Burbine.219 In Burbine, a woman was murdered in a factory

parking lot in Providence, Rhode Island.220 After several

months of investigation, detectives brought in Brian Burbine

for breaking and entering charges, which then led to the

murder investigation.221 While detectives were questioning

Burbine at the police station, Burbine’s sister contacted the

Public Defender’s Office to obtain legal assistance for her

brother.222 An attorney then contacted the police station and

spoke with detectives.223 She identified herself and informed

the detectives that Burbine had an attorney and that they

should stop questioning until that attorney could be present.224

The police did not inform Burbine of the attorney’s telephone

call.225 The Supreme Court held this failure to inform did not

deprive Burbine of information essential to his ability to

knowingly waive his Fifth Amendment right to remain silent

and to the presence of counsel.226 “Events occurring outside of

the presence of the suspect and entirely unknown to him surely

can have no bearing on the capacity to comprehend and

knowingly relinquish a constitutional right.”227 Once it is

demonstrated that a suspect’s decision not to rely on his rights

was uncoerced, that he at all times knew he could stand mute

and request a lawyer, and that he was aware of the State’s

intention to use his statements to secure a conviction, the

analysis is complete and the waiver is valid as a matter of law.

The level of the police’s culpability—whether intentional or

inadvertent—in failing to inform respondent of the telephone

call has no bearing on the validity of the waivers.228

219. Moran v. Burbine, 475 U.S. 412 (1986).

220. Id. at 416.

221. Id.

222. Id.

223. Id. at 417.

224. Id.

225. Moran, 475 U.S. at 417.

226. Id. at 428.

227. Id. at 422.

228. Id. at 413.

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2. Step Five: Voluntary

Even before Miranda, a suspect’s confession was

admissible only if it was given voluntarily.229 Regardless of

whether the Miranda warnings are given, a confession must be

obtained without police coercion.

Any statement given freely and voluntarily

without any compelling influences is, of course,

admissible in evidence. The fundamental import

of the privilege while an individual is in custody

is not whether he is allowed to talk to the police

without the benefit of warnings and counsel, but

whether he can be interrogated. . . . Volunteered

statements of any kind are not barred by the

Fifth Amendment and their admissibility is not

affected by our holding today.230

The test for determining the “voluntariness” of a confession

centers on whether or not there is police coercion. Courts have

held that coercion by non-governmental personnel does not

count as involuntary.231 When a confession is obtained by

police coercion, making it involuntary, it must be excluded from

the prosecution’s case-in-chief, as well as prohibited from use

as impeachment evidence of a defendant’s testimony.

Involuntary confessions are quite different than confessions

229. In Hopt v. Utah the U.S. Supreme Court set forth the requirement that a defendant’s out-of-court admissions must be voluntarily made in order to be used at trial. Hopt v. Utah, 110 U.S. 574, 584-87 (1884).

230. Arizona v. Mauro, 481 U.S. 520, 529 (1987) (quoting Miranda v. Arizona, 384 U.S. 436, 478 (1966)).

231. For example: Victim says to a suspect, “Because you shot me, I will take revenge on you by shooting your sister unless you turn yourself into the police and confess.” Suspect then goes to the police and confesses. This confession would likely be treated as “voluntary” and admitted against the suspect at a criminal trial, even though, in a sense, it was the product of coercion by Victim. As long as there is no police coercion, statements made will typically be deemed “voluntary.” Cf. Arizona v. Fulminante, 499 U.S. 279 (1991).

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obtained in violation of Miranda that may be admitted to

impeach a defendant’s testimony on the stand.

A waiver of Miranda must be “voluntary in the sense that

it was the product of a free and deliberate choice rather than

intimidation, coercion, or deception.”232 The focus of the

inquiry in determining if a wavier is voluntary is whether there

was “official coercion.”233 The Supreme Court emphasized this

point in Colorado v. Connelly.234 In that case, the defendant,

Francis Connelly, suffered from “chronic paranoid

schizophrenia.”235 Connelly approached an on-duty officer, and

without any prompting, began to reveal details about a murder

he committed.236 The officer informed Connelly of his Miranda

rights, and Connelly indicated he understood them but still

wanted to tell the officer about the murder.237 Again, the

officer warned Connelly that he did not have an obligation to

tell the officer anything.238 Despite the warnings, Connelly

informed the officer “his conscience had been bothering him”

and he wished to talk about the murder.239

In addressing the issue of Miranda waiver, the Court held:

Miranda protects defendants against

government coercion leading them to surrender

rights protected by the Fifth Amendment; it goes

no further than that. Respondent’s perception of

coercion flowing from the “voice of God,” however

important or significant such a perception may

be in other disciplines, is a matter to which the

United States Constitution does not speak.240

Accordingly, a mental illness will not, in and of itself,

232. Moran v. Burbine, 475 U.S. 412, 421 (1986).

233. Oregon v. Elstad, 470 U.S. 298, 305 (1985). The Fifth Amendment is not concerned “with moral and psychological pressures to confess emanating from sources other than official coercion.” Id.

234. Colorado v. Connelly, 479 U.S. 157 (1986).

235. Id. at 174 (Brennan, J., dissenting).

236. Id. at 160.

237. Id.

238. Id.

239. Id.

240. Connelly, 479 U.S. at 170–71.

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necessarily preclude a determination that a suspect voluntarily

waived Miranda rights as long as the police do not coerce the

suspect into waiving his rights, the suspect’s mental illness will

not impair the validity of a waiver.241

Likewise, in Colorado v. Spring,242 the Court held that

where a suspect did not know he could be interrogated about a

separate crime aside from what the suspect was arrested for,243

there was “no doubt” the Fifth Amendment waiver was

voluntary.244 The Court stated that the suspect’s “allegation

that the police failed to supply him with certain information

does not relate to any of the traditional indicia of coercion: ‘the

duration and conditions of detention . . . , the manifest attitude

of the police toward him, his physical and mental state, the

diverse pressures which sap or sustain his powers of resistance

and self-control.’”245 Thus, the inquiry is whether coercive

police conduct overcame the suspect’s will and “critically

impaired” the suspect’s “capacity for self-determination.”246

Law enforcement must be careful when interrogating a

suspect in more than one session. If the suspect invokes his

right to remain silent in the first session, police cannot wait a

couple of hours and then re-commence interrogation. Where

the second interrogation is about a different crime and the

police give new Miranda warnings prior to the second

interrogation, a waiver given by the suspect is likely valid

despite his insistence on remaining silent at the first

interrogation. However, after a person in custody has

expressed his desire to deal with the police only through

counsel, he is not subject to further interrogation by authorities

until counsel has been made available unless the accused

“initiates further communication, exchanges, or conversations

with the police.”247 In such situations, law enforcement cannot

talk to the suspect about ANYTHING, including old, present,

241. Id.

242. Colorado v. Spring, 479 U.S. 564 (1987).

243. Id. at 567–68.

244. Id. at 573.

245. Id. at 574 (quoting Culombe v. Connecticut, 367 U.S. 568, 602 (1961)) (alteration in original).

246. Spring, 479 U.S. at 574.

247. Arizona v. Robertson, 486 U.S. 675, 677 (1988).

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or new crimes. Law enforcement can reinitiate an

interrogation after fourteen days, but must make sure Miranda

warnings are given again.248

3. Step Six: Knowingly & Intelligently

Miranda requires that any decision to waive the right

against self-incrimination be made knowingly and

intelligently.249 The requirement of a knowing and intelligent

waiver of rights means that the suspect must have cognitive

faculties for understanding the meaning and effect of

statements he may give. In determining whether there has

been an intelligent waiver, various factors, which were often

considered in pre-Miranda confession cases under the “totality

of circumstances” test,250 are extremely relevant. The Supreme

Court has never definitively set forth a set of factors in a single

case that make up the totality of the circumstances. However,

certain factors have been identified in various cases. The

factors relevant to determining whether a statement was

knowingly and intelligently made include the suspect’s age,

experience, education, background, intelligence, presence or

absence of prior contact with the police, and whether he has

the capacity to understand the warnings given to him, the

nature of his Fifth Amendment rights, and the consequences of

waiving those rights.251

248. Maryland v. Shatzer, 559 U.S. 98 (2010). In 2003, the police interviewed Shatzer—then serving a sentence for an unrelated offense— regarding allegations that he sexually abused his three-year-old son. Id. at 100. Shatzer invoked his right to counsel, ending the interrogation. Id. at 101. The investigation was subsequently closed. Id. In 2006, while Shatzer remained incarcerated, a new investigation began. Id. Shatzer waived his Miranda rights and denied allegations that he forced his son to perform fellatio on him. Id. However, Shatzer admitted to masturbating in front of his son. Id. at 101-02. Several days later, Shatzer was again Mirandized and then failed a polygraph. Id. at 102. Immediately after questioning, Shatzer began to cry and stated, “I didn’t force him. I didn’t force him.” Id.

249. Miranda v. Arizona, 384 U.S. 436, 479 (1966).

250. Culombe v. Connecticut, 367 U.S. 568, 602 (1961).

251. See J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011). See also Colorado v. Spring, 479 U.S. 564 (1987); Moran v. Burbine, 475 U.S. 412 (1986); North Carolina v. Butler, 441 U.S. 369 (1979); Fare v. Michael C., 442 U.S. 707 (1979); Brewer v. Williams, 430 U.S. 387 (1977); Miranda v. Arizona, 384 U.S. 436 (1966).

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In Moran v. Burbine,252 the Supreme Court set forth a two-

part test that aggregates both “knowing” and “intelligent.”253

In assessing a waiver of Miranda, the test first assesses

whether such waiver was voluntary; the second part assesses

whether the waiver was knowing and intelligent. In

determining if a waiver is knowing and intelligent, the

pertinent inquiry is whether the defendant understood the

right to remain silent and anything said could be used as

evidence.254 A waiver is deemed knowing and intelligent if it is

“made with a full awareness of both the nature of the right

being abandoned and the consequences of the decision to

abandon it.”255

However, “events occurring outside of the presence of the

suspect and entirely unknown to him surely can have no

bearing on the capacity to comprehend and knowingly

relinquish a constitutional right.”256 This is because the U.S.

“Constitution does not require that a criminal suspect know

and understand every possible consequence of a waiver of the

Fifth Amendment privilege.”257 The decision in Burbine is

illustrative of what factors are considered when determining if

a waiver is knowing and intelligent. There, law enforcement

received a tip that the defendant Brian Burbine was involved

in a burglary that resulted in a murder.258 Officers read

Burbine his Miranda rights and he refused to execute a written

waiver.259 Officers received statements from other suspects

further implicating Burbine and questioning continued.260 A

few hours into the questioning, Burbine’s sister phoned the

office of the public defender in an attempt to obtain legal

assistance for her brother.261 Eventually, an assistant public

defender called and informed officers she intended to act as

252. Burbine, 475 U.S. at 421.

253. See Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (discussing that a waiver inquiry involves two aspects).

254. Spring, 479 U.S. at 574.

255. Burbine, 475 U.S. at 421.

256. Id. at 422.

257. Spring, 479 U.S. at 574.

258. Burbine, 475 U.S. at 416.

259. Id.

260. Id.

261. Id.

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counsel if police sought to question the defendant.262 The

officer informed the public defender they were done

questioning Burbine for the night.263

Shortly thereafter, officers began a series of interviews

with Burbine.264 The officers informed Burbine of his Miranda

rights each time and Burbine signed a waiver form.265 The

officers never informed Burbine of the public defender’s

attempts to get in contact with him and Burbine eventually

provided incriminating statements.266 The case made its way

to the U.S. Supreme Court.267 While recognizing that the fact

an attorney was calling to speak with Burbine would be helpful

to him in deciding whether to waive Miranda rights, the Court

stated the Constitution does not require “that the police supply

a suspect with a flow of information to help him calibrate his

self-interest in deciding whether to speak or stand by his

rights.”268 The Court continued, “Once it is determined that a

suspect’s decision not to rely on his rights was uncoerced, that

he at all times knew he could stand mute and request a lawyer,

and that he was aware of the State’s intention to use his

statements to secure a conviction, the analysisis complete and

the waiver is valid as a matter of law.”269 Accordingly, the

requirement of knowing and intelligent involves a rudimentary

showing of understanding. Where there is no allegation that a

defendant “failed to understand the basic privilege guaranteed

by the Fifth Amendment” or that the defendant

“misunderstood the consequences of speaking freely to law

enforcement,” a waiver is made knowingly and intelligently in

the context of Miranda.270

IV. Part III: Ramifications for violating Miranda

262. Id. at 417.

263. Id.

264. Burbine, 475 U.S. at 417.

265. Id.

266. Id. at 418.

267. Id. at 418–20.

268. Id. at 422.

269. Id. at 422–23.

270. Colorado v. Spring, 479 U.S. 564, 575 (1987).

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When a confession is obtained in violation of Miranda, it

may not be used or introduced as part of the prosecution’s case-

in-chief. If one of the steps is missed or violated, the confession

cannot be used as evidence of the suspect’s guilt. However, the

prosecution may be able to use the statements to impeach a

defendant’s testimony at trial if the statements’

“trustworthiness . . . satisfies legal standards.”271 As long as

the statement is not obtained as a result of coercion or was

involuntary for any reason, the statement will be deemed

“trustworthy” for impeachment purposes.272

271. Harris v. New York, 401 U.S. 222, 224 (1971). Vivien Harris was charged for selling heroin to an undercover officer. Id. at 222. At trial, the State’s chief witness, the undercover officer, testified to the details of the two sales. Id. at 223. A second officer verified collateral details of the sales and a third officer offered testimony about the chemical analysis of heroin. Id. Harris took the stand in his own defense. Id. He admitted knowing the undercover police officer but denied the sale on January 4, 1966. Id. Harris also testified that the substance provided to the officer on January 6, 1966 was baking powder and a part of a scheme to defraud the purchaser. Id. On cross-examination, the prosecution asked Harris whether he made specified statements to the police immediately following his arrest on January 7, 1966. Id. These statements partially contradicted Harris’s direct testimony at trial. Id. In response, Harris testified he could not remember virtually any of the questions or answers recited by the prosecutor. Id. The prosecution read the statement, obtained in violation of Miranda, in which Harris admitted to the sale. Id. The prosecution sought the prior statements to be considered by the jury regarding Harris’s credibility. Id. In addressing the propriety of the prosecution’s use of the prior statement, the Supreme Court held, “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Id. at 226. See Oregon v. Hass, 420 U.S. 714 (1975).

272. Mincey v. Arizona, 437 U.S. 385 (1978). In Mincey, undercover police officer Barry Headricks arranged to purchase a quantity of heroin from Rufus Mincey. Id. at 387. The officer left to obtain money, and when he arrived back, he brought nine other officers in plain clothes. Id. The undercover officer knocked on the door and it was opened by John Hodgman, one of three acquaintances of Mincey, who were in the living room of the apartment. Id. Officer Headricks slipped inside and moved quickly into the bedroom. Id. Hodgman attempted to slam the door in order to keep the other officers from entering, but was pushed back against the wall. Id. As police entered the apartment, a rapid volley of shots was heard from the bedroom. Id. Officer Headricks emerged and collapsed on the floor after being shot and subsequently died. Id. When other officers entered the bedroom, they found Mincey lying on the floor, wounded and semiconscious. Id. Homicide detectives arrived on the scene to take charge of the investigation and proceeded to conduct an exhaustive four-day warrantless search of the apartment. Id. at 389. This included the opening of dresser drawers, the ripping up of carpets, and the seizure of 200 to 300 objects. Id.

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Next, Miranda is generally not subject to the typical

Fourth Amendment “fruit of the poisonous tree”273 analysis.

Evidence obtained as a result of a statement in violation of

Miranda is usually not suppressed.274 The Supreme Court in

Michigan v. Tucker275 held that the fruit of the poisonous tree

doctrine does not apply in the traditional fashion to Miranda

violations.276 The police “did not abridge respondent’s

In the evening of the same day as the raid, one of the detectives went to the hospital where petitioner was confined in the intensive-care unit. Id. at 396. After giving Mincey his Miranda warnings, the detective proceeded to interrogate him while he was lying in bed barely conscious, encumbered by tubes, needles, and a breathing apparatus, and despite the fact that Mincey repeatedly asked that the interrogation stop until he could get a lawyer. Id. The Supreme Court held that where statements are not “the product of rational intellect and free will” they cannot be used in a criminal trial, even for impeachment purposes. Id. at 398. Mincey “was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious and his will was simply overborne.” Id. at 401–02. Accordingly, Mincey’s statements were not the product of his free and rationale choice. Id.

273. Wong Sun v. United States, 371 U.S. 471 (1963). Wong Sun establishes the “fruit of the poisonous tree” doctrine. Id. The fruits of police conduct that actually infringed a defendant’s Fourth Amendment rights must be suppressed. Id. at 485. In Wong Sun the police discovered evidence through statements made by the accused after he had been placed under arrest. Id. at 490. The Court, found that the arrest had occurred without probable cause and held that the derivative evidence could not be introduced against the accused at trial. Id. at 491.

274. Michigan v. Tucker, 417 U.S. 433 (1974).

275. On the morning of April 19, 1966, a forty-three-year-old woman in Pontiac, Michigan was found in her home by a friend and coworker, Luther White, in serious condition. Id. at 435. At the time she was found, the woman was tied, gagged, partially disrobed, and had been both raped and severely beaten. Id. She was unable to tell White anything about her assault at that time and still remains unable to recollect what happened. Id. While contacting police, White observed a dog in the house. Id. The victim did not own a dog so this was strange to White. Id. at 435-36. Upon their arrival, the police were able to track the dog back to Thomas Tucker. Id. at 436. The police brought Tucker to the station and questioned him about the rape. Id. They advised him of his rights, except failed to state he would be furnished counsel free of charge if he could not pay for such services. Id. (discussing such a violation of Miranda). Tucker provided information about a witness, Robert Henderson, who he had been with. Id. Police took that information and followed up by speaking with Henderson. Id. Henderson provided police information that Tucker told him regarding scratches on Tucker’s face and about a sexual encounter Tucker had with a woman that lived on the next block over. Id. at 436-37. The prosecution used this statement at trial. Id. at 437.

276. Id. at 445. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits.

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constitutional privilege against compulsory self-incrimination,

but departed only from the prophylactic standards later laid

down by this Court in Miranda to safeguard that privilege.”277

Miranda deals only with the Fifth Amendment, so it is only

applies to statements. The Fifth Amendment is not concerned

with nontestimonial evidence.278 “Indeed, far from being

prohibited by the Constitution, admissions of guilt by

wrongdoers, if not coerced, are inherently desirable. . . . Absent

some officially coerced self-accusation, the Fifth Amendment

privilege is not violated by even the most damning

admissions.”279

The Court in Oregon v. Elstad280 eloquently explained that

a Miranda violation is not a true Constitutional violation, and

thus, the normal suppression rules do not apply.281 That case

involved a home that was burglarized.282 Items missing from

the home included art objects and furnishings valued at around

$150,000.283 A witness contacted the police and implicated

Michael Elstad, who was an eighteen-year-old neighbor and

friend of the victim home’s teenage son.284 Police obtained a

warrant for Elstad’s arrest and went to speak with him at his

residence.285 An officer first sat down with Elstad in his living

room and asked him about the burglary.286 After Elstad

Dunaway v. New York, 442 U.S. 200, 216–217 (1979); Brown v. Illinois, 422 U.S. 590, 600–602 (1975). “The exclusionary rule. . .when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” Brown, 422 U.S. at 601. Where a Fourth Amendment violation “taints” the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence. Taylor v. Alabama, 457 U.S. 687, 690 (1982). “Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation.” Oregon v. Elstad, 470 U.S. 298, 306 (1985).

277. Id. at 445–46.

278. See Schmerber v. California, 384 U.S. 757, 764 (1966).

279. United States v. Washington, 431 U.S. 181, 187 (1977).

280. Oregon v. Elstad, 470 U.S. 298 (1985).

281. Id. at 318.

282. Id. at 300.

283. Id.

284. Id.

285. Id.

286. Elstad, 470 U.S. at 300-01.

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confessed to the crime, the officers arrested him, placed him in

the back of the patrol car, and took him to the police station.287

At the station, the officers advised Elstad for the first time of

his Miranda rights.288 Elstad gave a second confession and

provided a full statement.289 The Supreme Court held that

second confession was admissible and went through an

analysis as to why the unwarned first confession did not taint

the second confession.290

The arguments advanced in favor of suppression

of respondent’s written confession rely heavily on

metaphor. One metaphor, familiar from the

Fourth Amendment context, would require that

respondent’s confession, regardless of its

integrity, voluntariness, and probative value, be

suppressed as the “tainted fruit of the poisonous

tree” of the Miranda violation. A second

metaphor questions whether a confession can be

truly voluntary once the “cat is out of the bag.”

Taken out of context, each of these metaphors

can be misleading. They should not be used to

obscure fundamental differences between the

role of the Fourth Amendment exclusionary rule

and the function of Miranda in guarding against

the prosecutorial use of compelled statements as

prohibited by the Fifth Amendment. The Oregon

court assumed and respondent here contends

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.” We believe this view

misconstrues the nature of the protections

afforded by Miranda warnings and therefore

misreads the consequences of police failure to

287. Id. at 301.

288. Id.

289. Id.

290. Id. at 318.

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supply them.291

. . .The Miranda exclusionary rule, however,

serves the Fifth Amendment and sweeps more

broadly than the Fifth Amendment itself. It may

be triggered even in the absence of a Fifth

Amendment violation. The Fifth Amendment

prohibits use by the prosecution in its case in

chief only of compelled testimony. Failure to

administer Miranda warnings creates a

presumption of compulsion. Consequently,

unwarned statements that are otherwise

voluntary within the meaning of the Fifth

Amendment must nevertheless be excluded from

evidence under Miranda. Thus, in the individual

case, Miranda’s preventive medicine provides a

remedy even to the defendant who has suffered

no identifiable constitutional harm.292

In accord with Elstad, most courts have held that Miranda

violations will not require the exclusion of derivative evidence,

even when that evidence is physical. The Court, thirty years

later, held that the two-stage interrogation technique violates

Miranda, saying that the second confessions are inadmissible

and violate the spirit of the rule.293 Although this technique

violates Miranda it does little to deviate away from the same

Fourth and Fifth Amendment analysis regarding derivative

evidence. In United States v. Patane,294 the Supreme Court

addressed the specific issue of “whether 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.”295 The Court continued,

“Because the Miranda rule protects against violations of the

Self–Incrimination Clause, which, in turn, is not implicated by

291. Id. at 303–04.

292. Elstad, 470 U.S. at 306-07. See New York v. Quarles, 467 U.S. 649, 654 (1984); Michigan v. Tucker, 417 U.S. 433, 444 (1974).

293. Missouri v. Seibert, 542 U.S. 600 (2004).

294. United States v. Patane, 542 U.S. 630 (2004).

295. Id. at 633-34.

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the introduction at trial of physical evidence resulting from

voluntary statements, we answer the question presented in the

negative.”296

In that case, Samuel Patane was arrested for harassing his

ex-girlfriend.297 He was released on bond, subject to a

restraining order that prohibited him from contacting the

victim.298 Patane violated the order by telephoning the

victim.299 At the time, officers had been investigating Patane

on another matter relating to illegally possessing a firearm (a

Glock pistol).300 A county probation officer informed police of

the violation of the order.301 Officers went to Patane’s

residence and placed him under arrest.302 One detective tried

to advise Patane of his rights but only made it to, “You have

the Right to Remain Silent.”303 At this point, Patane

interrupted and said he knew his rights and none of the officers

completed the warning.304 One of the detectives then asked

Patane about the firearm.305 Patane was initially reluctant to

discuss the matter and stated, “I am not sure I should tell you

anything about the Glock because I don’t want you to take it

away from me.”306 After the detective persisted, Patane told

him that the pistol was in his bedroom and also gave the

detective permission to retrieve the pistol.307 The detective

found the pistol and seized it.308 The Court held:

The Miranda rule “does not require that the

statements [taken without complying with the

rule] and their fruits be discarded as inherently

tainted.” Such a blanket suppression rule could

296. Id. at 634.

297. Id.

298. Id.

299. Id.

300. Patane, 542 U.S. at 634.

301. Id. at 634-35.

302. Id. at 635.

303. Id.

304. Id.

305. Id.

306. Patane, 542 U.S. at 635.

307. Id.

308. Id.

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not be justified by reference to the “Fifth

Amendment goal of assuring trustworthy

evidence” or by any deterrence rationale, and

would therefore fail our close-fit requirement.

Furthermore, the Self–Incrimination Clause

contains its own exclusionary rule. It provides

that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself.”

Unlike the Fourth Amendment’s bar on

unreasonable searches, the Self–Incrimination

Clause is self-executing. We have repeatedly

explained “that those subjected to coercive police

interrogations have an automatic protection from

the use of their involuntary statements (or

evidence derived from their statements) in any

subsequent criminal trial.” This explicit textual

protection supports a strong presumption against

expanding the Miranda rule any further.309

Therefore, the “fruit of the poisonous tree” doctrine does

not apply or extend to Miranda. Dissimilar to searches in

violation of the Fourth Amendment, the Fifth Amendment

contains a built-in safeguard that does not need to be

expanded.

V. Conclusion

After fifty years, Miranda v. Arizona has become second

nature in the criminal justice system. Since its primary rule

was fictitiously created out of the Fifth Amendment, it has

caused much confusion among law enforcement officials, legal

practitioners, and trial judges as to its application in the

admissibility of confessions. For five decades, courts have

struggled to provide an adequate framework for practitioners

to do their job. Miranda’s evolution and modern day

application has needed a template for the day-to-day

administration of justice. This six-step analysis provides a

practical model for those in the justice system to apply the

309. Id. at 639–40 (citations omitted).

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214 PACE LAW REVIEW Vol. 36:1

principles that Miranda was established on.

The two-prong test presented captures the Supreme

Court’s continued discussion and interpretation of Miranda.

The first prong centers on whether Miranda applies. Step One

sets forth the primary rule of establishing the three factors

that must exist: existence of an authority figure (for example,

police) engaged in custodial interrogation. If these three

factors are present, then Step Two discusses the four

exceptions that have been carved out of Miranda: (i) routine

traffic stops, (ii) public safety, (iii) officer safety, and (iv)

routine booking questions. If no exception applies, Step Three

explains how to advise the suspect of the four warnings

prescribed by Miranda.

The second prong centers on whether the suspect has

invoked or waived Miranda rights. Step Four explained that a

suspect must clearly and unequivocally invoke their rights,

otherwise, their statements can be used against them. Step

Five clarifies that police cannot exert unlawful coercion over

the suspect and the statements made must be voluntary.

Finally, Step Six ensures that the suspect knowingly and

intelligently waive these rights.

If both prongs are followed and all six steps adhered to,

statements made by a suspect should be admissible as evidence

in a subsequent case. If the steps are not complied with, then

statements can, and often times likely will, be excluded. When

Miranda is violated, the Fifth Amendment excludes

subsequent statements. However, such a violation does not

necessarily lead to the exclusion of physical evidence (although

possible).

Miranda continues to evolve. Practitioners in the criminal

justice system continue to see what new interpretations, new

exceptions, new analyses, and new rulings come out each year.

The living creature embodied in Miranda is simultaneously

both exciting and frustrating. Ultimately with Miranda, if a

practitioner follows the six-step analysis outlined above, there

no longer will be confusion.

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