Harris v. New York (1971)

401 U.S. 222 (1971)

Vote: 5-4
Decision: Affirmed
Majority: Burger, joined by White, Stewart, Harlan, and Blackmun
Dissent: Black
Dissent: Brennan, joined by Douglas and Marshall

Mr. Chief Justice Burger delivered the opinion of the Court.

We granted the writ in this case to consider petitioner’s claim that a statement made by him to police under circumstances rendering it inadmissible to establish the prosecution’s case in chief under Miranda v. Arizona (1966), may not be used to impeach his credibility.

The State of New York charged petitioner in a two-count indictment with twice selling heroin to an undercover police officer. At a subsequent jury trial, the officer was the State’s chief witness, and he testified as to details of the two sales. A second officer verified … and a third offered testimony. …

Petitioner took the stand in his own defense. He admitted knowing the undercover police officer, but denied a sale on January 4, 1966. He admitted making a sale of contents of a glassine bag to the officer on January 6, but claimed it was baking powder and part of a scheme to defraud the purchaser.

On cross-examination, petitioner was asked seriatim whether he had made specified statements to the police immediately following his arrest on January 7 — statements that partially contradicted petitioner’s direct testimony at trial. In response to the cross-examination, petitioner testified that he could not remember virtually any of the questions or answers recited by the prosecutor. At the request of petitioner’s counsel, the written statement from which the prosecutor had read questions and answers in his impeaching process was placed in the record for possible use on appeal; the statement was not shown to the jury.

The trial judge instructed the jury that the statements attributed to petitioner by the prosecution could be considered only in passing on petitioner’s credibility, and not as evidence of guilt. … The jury then found petitioner guilty on the second count of the indictment. The New York Court of Appeals affirmed. …

At trial, the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, conceding that they were inadmissible under Miranda v. Arizona (1966). The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary.

Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding, and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes. …

In Walder v. United States [(1954)], the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes.

“It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. … ”. …

It is true that Walder was impeached as to collateral matters included in his direct examination. … We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner’s testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility. …

Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. … Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. …

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. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.

Affirmed.

MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.

It is conceded that the question and answer statement used to impeach petitioner’s direct testimony was … constitutionally inadmissible as part of the State’s direct case against petitioner. I think that the Constitution also denied the State the use of the statement on cross-examination to impeach the credibility of petitioner’s testimony given in his own defense. The decision in Walder v. United States (1954) … supports my conclusion.

. … Petitioner took the stand and flatly denied having sold anything to the officer on January 4. He countered the officer’s testimony as to the January 6 sale with testimony that he had sold the officer two glassine bags containing what appeared to be heroin, but that actually the bags contained only baking powder intended to deceive the officer in order to obtain $12. The statement contradicted petitioner’s direct testimony as to the events of both days. … [I]t is clear that the statement was used to impeach petitioner’s direct testimony not on collateral matters, but on matters directly related to the crimes for which he was on trial.

Walder v. United States was not a case where tainted evidence was used to impeach an accused’s direct testimony on matters directly related to the case against him. In Walder, the evidence was used to impeach the accused’s testimony on matters collateral to the crime charged. … The Court held that, on facts where “the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics,” … the exclusionary rule of Weeks v. United States, (1914), would not extend to bar the Government from rebutting this testimony with evidence, although tainted. …

The Court was careful, however, to distinguish the situation of an accused whose testimony, as in the instant case, was a “denial of complicity in the crimes of which he was charged,” that is, where illegally obtained evidence was used to impeach the accused’s direct testimony on matters directly related to the case against him. …

… [T]he evidence used for impeachment in Walder was related to the earlier … prosecution, and had no direct bearing on “the elements of the case” being tried. … The evidence tended solely to impeach the credibility of the defendant’s direct testimony. … But that evidence was completely unrelated to the indictment on trial, and did not in any way interfere with his freedom to deny all elements of that case against him. In contrast, here, the evidence … was directly related to the case against petitioner.

While Walder did not identify the constitutional specifics that guarantee “a defendant the fullest opportunity to meet the accusation against him … [and permit him to] be free to deny all the elements of the case against him,” in my view, Miranda v. Arizona, (1966), identified the Fifth Amendment’s privilege against self-incrimination as one of those specifics. … It is fulfilled only when an accused is guaranteed the right “to remain silent unless he chooses to speak in the unfettered exercise of his own will,”. … The choice of whether to testify in one’s own defense must therefore be “unfettered,” since that choice is an exercise of the constitutional privilege, Griffin v. California, (1965). Griffin held that comment by the prosecution upon the accused’s failure to take the stand or a court instruction that such silence is evidence of guilt is impermissible because it “fetters” that choice. … For precisely the same reason, the constitutional guarantee forbids the prosecution to use a tainted statement to impeach the accused who takes the stand: the prosecution’s use of the tainted statement “cuts down on the privilege by making its assertion costly.”. …

The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system. The “essential mainstay” of that system, Miranda v. Arizona … is the privilege against self-incrimination, which, for that reason has occupied a central place in our jurisprudence since before the Nation’s birth. …

All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government … must accord to the dignity and integrity of its citizens.”

. … The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that, although any statement they obtain in violation of Miranda cannot be used on the State’s direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution. I dissent.

Excerpted by Sobhi Sidani

Oregon v. Elstad (1985)

470 U.S. 298 (1985)

Vote: 6-3
Decision: Reversed and remanded
Majority: O’Connor, joined by Blackmun, Powell, White, Burger, and Rehnquist
Dissent: Brennan, joined by Marshall
Dissent: Stevens

JUSTICE O’CONNOR delivered the opinion of the Court.

This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, (1966), without more, “taints” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent’s signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari … and we now reverse.

In December, 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk County, Ore., was burglarized. Missing were art objects and furnishings valued at $150,000. A witness to the burglary contacted the Polk County Sheriff’s Office, implicating respondent Michael Elstad, an 18-year-old neighbor and friend of the Grosses’ teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad’s mother answered the door. She led the officers to her son’s room. … The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent’s mother to step into the kitchen, where he explained that they had a warrant for her son’s arrest for the burglary of a neighbor’s residence. Officer Burke remained with Elstad in the living room.  He later testified:

“I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house. And at that point, I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, ‘Yes, I was there.'”

. …

Elstad was transported to the Sheriff’s headquarters and, approximately one hour later … McAllister then advised respondent for the first time of his Miranda rights, reading from a standard card. Respondent indicated he understood his rights, and … gave a full statement, explaining that he had known that the Gross family was out of town, and had been paid to lead several acquaintances to the Gross residence and show them how to gain entry through a defective sliding glass door. The statement was typed, reviewed by respondent. … Elstad added and initialed the sentence, “After leaving the house, Robby & I went back to van & Robby handed me a small bag of grass.” . …

Respondent was charged with first-degree burglary. He was represented at trial by retained counsel. Elstad waived his right to a jury, and his case was tried by a Circuit Court Judge. Respondent moved at once to suppress his oral statement and signed confession. He contended that the statement he made in response to questioning at his house “let the cat out of the bag,” citing United States v. Bayer, (1947), and tainted the subsequent confession as “fruit of the poisonous tree,” citing Wong Sun v. United States, (1963). The judge ruled that the statement, “I was there,” had to be excluded because the defendant had not been advised of his Miranda rights. The written confession taken after Elstad’s arrival at the Sheriff’s office, however, was admitted in evidence. …

. … Elstad was found guilty of burglary in the first degree. He received a 5-year sentence, and was ordered to pay $18,000 in restitution.

Following his conviction, respondent appealed to the Oregon Court of Appeals. … The State conceded that Elstad had been in custody when he made his statement, “I was there,” and accordingly agreed that this statement was inadmissible … [b]ut the State maintained that any conceivable “taint” had been dissipated prior to the respondent’s written confession. … The Court of Appeals reversed respondent’s conviction, identifying the crucial constitutional inquiry as “whether there was a sufficient break in the stream of events between inadmissible statement and the written confession to insulate the latter statement from the effect of what went before.”. …

The Oregon court concluded: “. … In determining whether it [coercive impact] has been dissipated, lapse of time, and change of place from the original surroundings are the most important considerations.”. … Because of the brief period separating the two incidents, the “cat was sufficiently out of the bag to exert a coercive impact on later admissions.”. …

The State of Oregon petitioned the Oregon Supreme Court for review, and review was declined. This Court granted certiorari to consider the question whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant.

The arguments advanced in favor of suppression of respondent’s written confession rely heavily on metaphor. One metaphor … 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 supply them.

. … The Court in Miranda required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment. The Fifth Amendment, of course, is not concerned with nontestimonial evidence. Nor is it concerned with moral and psychological pressures to confess emanating from sources other than official coercion. … Voluntary statements “remain a proper element in law enforcement.” Miranda v. Arizona, [(1966)]. … As the Court noted last Term in New York v. Quarles (1984):

“The Miranda Court, however, presumed that interrogation in certain custodial circumstances is inherently coercive, and … that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. The prophylactic Miranda warnings therefore are ‘not themselves rights protected by the Constitution, but instead measures to insure that the right against compulsory self-incrimination protected.’ . … Requiring Miranda warnings before custodial interrogation provides ‘practical reinforcement’ for the Fifth Amendment right.”

Respondent’s contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings, and must be excluded as “fruit of the poisonous tree,” assumes the existence of a constitutional violation. This figure of speech is drawn from Wong Sun v. United States, (1963), in which the Court held that evidence and witnesses discovered as a result of a search in violation of the Fourth Amendment must be excluded from evidence. The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment violation is a confession. It is settled law that “a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is ‘sufficiently an act of free will to purge the primary taint.'” Taylor v. Alabama (1982). …

But as we explained … a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the “fruits” doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. …

. … 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 [(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.

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. … 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. …

But the Miranda presumption, though irrebuttable for purposes of the prosecution’s case in chief, does not require that the statements and their fruits be discarded as inherently tainted. Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution’s case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination. …

In Michigan v. Tucker, supra, the Court was asked … to suppress the testimony of a witness for the prosecution whose identity was discovered as the result of a statement taken from the accused without benefit of full Miranda warnings. As in respondent’s case, the breach of the Miranda procedures in Tucker involved no actual compulsion.. … In deciding “how sweeping the judicially imposed consequences of a failure to administer Miranda warnings should be,” … the Tucker Court noted that neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the witness’ testimony. The unwarned confession must, of course, be suppressed, but the Court ruled that introduction of the third-party witness’ testimony did not violate Tucker’s Fifth Amendment rights.

We believe that this reasoning applies with equal force when the alleged “fruit” of a noncoercive Miranda violation is neither a witness nor an article of evidence, but the accused’s own voluntary testimony. …

Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into “custody,” or his freedom has otherwise been significantly restrained. Miranda v. Arizona [(1966)]. … Unfortunately, the task of defining “custody” is a slippery one, and “policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.” Michigan v. Tucker [(1974)]. … It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

The Oregon court, however, believed that the unwarned remark compromised the voluntariness of respondent’s later confession. It was the court’s view that the prior answer, and not the unwarned questioning, impaired respondent’s ability to give a valid waiver, and that only lapse of time and change of place could dissipate what it termed the “coercive impact” of the inadmissible statement. When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession. … The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against compulsory self-incrimination has not been intelligently exercised. … Of the courts that have considered whether a properly warned confession must be suppressed … the majority have explicitly or implicitly recognized that Westover‘s requirement of a break in the stream of events is inapposite. In these circumstances, a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible [Westover v. US decided with Miranda]. …

The Oregon court nevertheless identified a subtle form of lingering compulsion, the psychological impact of the suspect’s conviction that he has let the cat out of the bag and, in so doing, has sealed his own fate. But endowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect’s informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions. As the Court remarked in [U.S. v] Bayer: “[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.”[(1947)]. …

This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. The Oregon court … effectively immunizes a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. … This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself. … When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder.

There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a “guilty secret” freely given in response to an unwarned but noncoercive question, as in this case. …

We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights.

Though belated, the reading of respondent’s rights was undeniably complete. McAllister testified that he read the Miranda warnings aloud from a printed card and recorded Elstad’s responses. There is no question that respondent knowingly and voluntarily waived his right to remain silent before he described his participation in the burglary. It is also beyond dispute that respondent’s earlier remark was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either “interrogation” was coercive. The initial conversation took place at midday, in the living room area of respondent’s own home, with his mother in the kitchen area, a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest. The arresting officers’ testimony indicates that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect, but to notify his mother of the reason for his arrest. …

The State has conceded the issue of custody, and thus we must assume that Burke breached Miranda procedures in failing to administer Miranda warnings before initiating the discussion in the living room. This breach may have been the result of confusion as to whether the brief exchange qualified as “custodial interrogation,” or it may simply have reflected Burke’s reluctance to initiate an alarming police procedure before McAllister had spoken with respondent’s mother. Whatever the reason for Burke’s oversight, the incident had none of the earmarks of coercion. … Nor did the officers exploit the unwarned admission to pressure respondent into waiving his right to remain silent.

Respondent, however, has argued that he was unable to give a fully informed waiver of his rights because he was unaware that his prior statement could not be used against him. Respondent suggests that Officer McAllister, to cure this deficiency, should have added an additional warning to those given him at the Sheriff’s office. Such a requirement is neither practicable nor constitutionally necessary. In many cases, a breach of Miranda procedures may not be identified as such until long after full Miranda warnings are administered and a valid confession obtained. … The standard Miranda warnings explicitly inform the suspect of his right to consult a lawyer before speaking. …

This Court has never embraced the theory that a defendant’s ignorance of the full consequences of his decisions vitiates their voluntariness. …

When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State’s case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. … The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect’s will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect’s initial inculpatory statement, though technically in violation of Miranda, was voluntary.

The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing “taint” to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

The judgment of the Court of Appeals of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Excerpted by Sobhi Sidani

Missouri v. Seibert (2004)

542 U.S. 600 (2004)

Vote: 5-4
Decision: Affirmed
Plurality: Souter, joined by Stevens, Ginsburg, and Breyer
Concurrence: Breyer
Concurrence: Kennedy
Dissent: O’Connor, joined by Rehnquist, Scalia, and Thomas

JUSTICE SOUTER announced the judgment of the Court and delivered an opinion, in which JUSTICE STEVENS, JUSTICE GINSBURG, and JUSTICE BREYER join.

This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.

Respondent Patrice Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep, she feared charges of neglect. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body … [by] burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family. …

Five days later, the police awakened Seibert at 3 a.m. at a hospital. In arresting her, Officer Kevin Clinton followed instructions from … Officer Richard Hanrahan that he refrain from giving Miranda warnings. After Seibert had been taken to the police station … Hanrahan questioned her without Miranda warnings.

After Seibert finally admitted she knew Donald was meant to die in the fire … Officer Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her. He resumed the questioning … and confronted her with her prewarning statements. …

After being charged with first-degree murder … Seibert sought to exclude both her prewarning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.”. …

The trial court suppressed the prewarning statement but admitted the responses given after the Miranda recitation. A jury convicted Seibert of second-degree murder. On appeal, the Missouri Court of Appeals affirmed, treating this case as indistinguishable from Oregon v. Elstad (1985). …

The Supreme Court of Missouri reversed, holding that “[i]n the circumstances here, where the interrogation was nearly continuous … the second statement, clearly the product of the invalid first statement, should have been suppressed.” The court distinguished Elstad on the ground that warnings had not intentionally been withheld there, and reasoned that “Officer Hanrahan’s intentional omission of a Miranda warning was intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights. … ”

“In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment … commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’”

. …

Accordingly, “to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause,” Chavez v. Martinez, this Court in Miranda concluded that “the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.” Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility. …

There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seeking to restore that old regime, 18 U. S. C. §3501, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States. Dickerson reaffirmed Miranda and held that its constitutional character prevailed against the statute.

The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation … [a]t any point during the pre-Miranda interrogation. … [O]fficers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court. … ”

When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed “interrogation practices … likely … to disable [an individual] from making a free and rational choice” about speaking, and held that a suspect must be “adequately and effectively” advised of the choice the Constitution guarantees. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.

. … “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.” The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could [the warnings] reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda. …

. … Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. … What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine  By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.

. …

Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad … The Court, indeed, took care to mention that the officer’s initial failure to warn was an “oversight” that “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interrogation’. … In holding the second statement admissible and voluntary, Elstad rejected the “cat out of the bag” theory that any short, earlier admission, obtained in arguably innocent neglect of Miranda, determined the character of the later, warned confession, Elstad; on the facts of that case, the Court thought any causal connection between the first and second responses to the police was “speculative and attenuated.”

At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used. … It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.

Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible.

The judgment of the Supreme Court of Missouri is affirmed.

It is so ordered.

Excerpted by Sloan Harmel

New York v. Harris (1990)

495 U.S. 14 (1990)

Vote: 5-4
Decision: reversed
Majority: White, joined by Kennedy, O’Connor, Scalia, and Rehnquist
Dissent: Marshall, joined by Brennan, Blackmun, and Stevens

Justice WHITE delivered the opinion of the Court.

On January 11, 1984, New York City police found the body of Ms. Thelma Staton murdered in her apartment. Various facts gave the officers probable cause to believe that the respondent in this case, Bernard Harris, had killed Ms. Staton … three police officers went to Harris’s apartment to take him into custody. They did not first obtain an arrest warrant.

When the police arrived, they knocked on the door, displaying their guns and badges. Harris let them enter. Once inside, the officers read Harris his Miranda rights. Harris acknowledged that he understood the warnings, and agreed to answer the officers’ questions. At that point, he reportedly admitted that he had killed Ms. Staton.

Harris was arrested, taken to the station house, and again informed of his Miranda rights. He then signed a written inculpatory statement. The police subsequently read Harris the Miranda warnings a third time and videotaped an incriminating interview between Harris and a district attorney, even though Harris had indicated that he wanted to end the interrogation.

The trial court suppressed Harris’ first and third statements; the State does not challenge those rulings. The sole issue in this case is whether Harris’s second statement — the written statement made at the station house — should have been suppressed because the police, by entering Harris’ home without a warrant and without his consent, violated Payton v. New York, (1980), which held that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest. The New York trial court concluded that the statement was admissible. Following a bench trial, Harris was convicted of second-degree murder. The Appellate Division affirmed. …

A divided New York Court of Appeals reversed. … That court first accepted the trial court’s finding that Harris did not consent to the police officers’ entry into his home, and that the warrantless arrest therefore violated Payton even though there was probable cause. Applying Brown v. Illinois, (1975), and its progeny, the court then determined that the station house statement must be deemed to be the inadmissible fruit of the illegal arrest because the connection between the statement and the arrest was not sufficiently attenuated. … We granted certiorari to resolve the admissibility of the station house statement. …

For present purposes, we accept the finding below that Harris did not consent to the police officers’ entry into his home and the conclusion that the police had probable cause to arrest him. It is also evident, in light of Payton, that arresting Harris in his home without an arrest warrant violated the Fourth Amendment. But, as emphasized in earlier cases, “we have declined to adopt a “per se or but for’ rule” that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation that began with an illegal arrest.”  United States v. Ceccolini, (1978). Rather, in this context, we have stated that “[t]he penalties visited upon the Government, and in turn upon the public, because its officers have violated the law must bear some relation to the purposes which the law is to serve.”. …

In light of these principles, we decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime. …

Although it had long been settled that a warrantless arrest in a public place was permissible as long as the arresting officer had probable cause, see United States v. Watson, (1976), Payton nevertheless drew a line at the entrance to the home. … Nothing in the reasoning of that case suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house. There could be no valid claim here that Harris was immune from prosecution because his person was the fruit of an illegal arrest. … Nor is there any claim that the warrantless arrest required the police to release Harris, or that Harris could not be immediately rearrested if momentarily released. Because the officers had probable cause to arrest Harris for a crime, Harris was not unlawfully in custody when he was removed to the station house, given Miranda warnings and allowed to talk. …

Harris’s statement taken at the police station was not the product of being in unlawful custody. Neither was it the fruit of having been arrested in the home rather than someplace else. … [T]he police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into Harris’ home.

We do not hold, as the dissent suggests, that a statement taken by the police while a suspect is in custody is always admissible as long as the suspect is in legal custody. Statements taken during legal custody would of course be inadmissible for example, if, they were the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, (1981). We do hold that the station-house statement in this case was admissible because Harris was in legal custody, as the dissent concedes, and because the statement, while the product of an arrest and being in custody, was not the fruit of the fact that the arrest was made in the house, rather than someplace else.

To put the matter another way, suppressing the statement taken outside the house would not serve the purpose of the rule that made Harris’s in-house arrest illegal. The warrant requirement for an arrest in the home is imposed to protect the home, and anything incriminating the police gathered from arresting Harris in his home, rather than elsewhere, has been excluded, as it should have been; the purpose of the rule has thereby been vindicated. We are not required by the Constitution to go further and suppress statements later made by Harris in order to deter police from violating Payton. …

Even though we decline to suppress statements made outside the home following a Payton violation, the principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found or statements taken inside the home. If we did suppress statements like Harris’, moreover, the incremental deterrent value would be minimal. Given that the police have probable cause to arrest a suspect in Harris’ position, they need not violate Payton in order to interrogate the suspect. …

We hold that, where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton. The judgment of the court below is accordingly

Reversed.

Justice MARSHALL, with whom Justices BRENNAN, BLACKMUN and STEVENS join, dissenting.

Police officers entered Bernard Harris’ home and arrested him there. They did not have an arrest warrant, he did not consent to their entry, and exigent circumstances did not exist. An arrest in such circumstances violates the Fourth Amendment. … About an hour after his arrest, Harris made an incriminating statement, which the government subsequently used at his trial. The majority concedes that “[t]he fruits of that illegal entry” must be suppressed. … The sole question before us is whether Harris’ statement falls within that category.

The majority answers this question by adopting a broad and unprecedented principle, holding that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.”. …

The majority’s conclusion is wrong. Its reasoning amounts to nothing more than an analytical sleight-of-hand, resting on errors in logic, misreadings of our cases, and an apparent blindness to the incentives the Court’s ruling creates for knowing and intentional constitutional violations by the police. I dissent.

In recent years, this Court has repeatedly stated that the principal purpose of the Fourth Amendment’s exclusionary rule is to eliminate incentives for police officers to violate that Amendment. … A police officer who violates the Constitution usually does so to obtain evidence that he could not secure lawfully. The best way to deter him is to provide that any evidence so obtained will not be admitted at trial. Deterrence of constitutional violations thus requires the suppression not only of evidence seized during an unconstitutional search but also of

“derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search.”

Murray v. United States, (1988). …

Because deterrence is a principal purpose of the exclusionary rule, our attenuation analysis must be driven by an understanding of how extensive exclusion must be to deter violations of the Fourth Amendment. We have long held that, where police have obtained a statement after violating the Fourth Amendment, the interest in deterrence does not disappear simply because the statement was voluntary, as required by the Fifth Amendment. … Indeed, if the Fourth Amendment required exclusion only of statements taken in violation of the Fifth Amendment, the Fourth Amendment would serve no independent purpose. A regime that suppresses only some fruits of constitutional violations is a regime that barely begins to eliminate the incentives to violate the Constitution.

When faced with a statement obtained after an illegal arrest, then, a court will have occasion to engage in the attenuation inquiry only if it first determines that the statement is “voluntary,” for involuntary statements are suppressible in any event. … [W]e have identified several factors as relevant to the issue of attenuation: the length of time between the arrest and the statement, the presence of intervening circumstances, and the “purpose and flagrancy” of the violation. … We have identified the last factor as “particularly” important. … When a police officer intentionally violates what he knows to be a constitutional command, exclusion is essential to conform police behavior to the law. Such a “flagrant” violation is in marked contrast to a violation that is the product of a good-faith misunderstanding of the relevant constitutional requirements. This Court has suggested that excluding evidence that is the product of the latter variety of violation may result in deterrence of legitimate law enforcement efforts. … Underlying this view is the theory that officers fear that if their judgment as to the constitutionality of their conduct turns out to be wrong, the consequences of their misjudgments may be too costly to justify the possible law enforcement benefits. Any doubt concerning the constitutionality of a course of action will therefore be resolved against that course of action. Whatever the truth of that theory, the concern that officers who act in good faith will be overdeterred is nonexistent when, based on a cynical calculus of the likely results of a suppression hearing, an officer intentionally decides to violate what he knows to be a constitutional command.

An application of the Brown factors to this case compels the conclusion that Harris’ statement at the station house must be suppressed. About an hour elapsed between the illegal arrest and Harris’ confession, without any intervening factor other than the warnings required by Miranda v. Arizona, (1966). This Court has held, however, that “Miranda warnings, alone and per se, … cannot assure in every case that the Fourth Amendment violation has not been unduly exploited.”. … Indeed, in Brown, we held that a statement made almost two hours after an illegal arrest, and after Miranda warnings had been given, was not sufficiently removed from the violation so as to dissipate the taint.

As to the flagrancy of the violation, petitioner does not dispute that the officers were aware that the Fourth Amendment prohibited them from arresting Harris in his home without a warrant. … In short, the officers decided, apparently consistent with a “departmental policy,” to violate Harris’ Fourth Amendment rights so they could get evidence that they could not otherwise obtain. …

Had the Court analyzed this case as our precedents dictate that it should, I could end my discussion here — the dispute would reduce to an application of the Brown factors to the constitutional wrong and the inculpatory statement that followed. But the majority chooses no such unremarkable battleground. Instead, the Court redrafts our cases in the service of conclusions they straightforwardly and explicitly reject. Specifically, the Court finds suppression unwarranted on the authority of its newly fashioned per se rule. In the majority’s view, when police officers make a warrantless home arrest in violation of Payton, their physical exit from the suspect’s home necessarily breaks the causal chain between the illegality and any subsequent statement by the suspect, such that the statement is admissible regardless of the Brown factors. …

Perhaps the most alarming aspect of the Court’s ruling is its practical consequences for the deterrence of Payton violations. Imagine a police officer who has probable cause to arrest a suspect but lacks a warrant. The officer knows if he were to break into the home to make the arrest without first securing a warrant, he would violate the Fourth Amendment and any evidence he finds in the house would be suppressed. Of course, if he does not enter the house, he will not be able to use any evidence inside the house either, for the simple reason that he will never see it. The officer also knows, though, that waiting for the suspect to leave his house before arresting him could entail a lot of waiting, and the time he would spend getting a warrant would be better spent arresting criminals. The officer could leave the scene to obtain a warrant, thus avoiding some of the delay, but that would entail giving the suspect an opportunity to flee.

More important, the officer knows that, if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. Before today’s decision, the government would only be able to use that evidence if the Court found that the taint of the arrest had been attenuated; after the decision, the evidence will be admissible regardless of whether it was the product of the unconstitutional arrest. … The Court thus creates powerful incentives for police officers to violate the Fourth Amendment. In the context of our constitutional rights and the sanctity of our homes, we cannot afford to presume that officers will be entirely impervious to those incentives.

I dissent.

Excerpted by Sobhi Sidani