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, 384 U.S. 436 (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, 465 U.S. 1078 (1984), and we now reverse.
In December 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk Country, 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 where he lay on his bed, clad in shorts and listening to his stereo. 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
The officers then escorted Elstad to the back of the patrol car. As they were about to leave for the Polk County Sheriff's office, Elstad's father arrived home and came to the rear of the patrol car. The officers advised him that his son was a suspect in the burglary. Officer Burke testified that Mr. Elstad became quite agitated, opened the rear door of the car and admonished his son: "I told you that you were going to get into trouble. You wouldn't listen to me. You never learn." Id., at 21.
Elstad was transported to the Sheriff's headquarters and approximately one hour later, Officers Burke and McAllister joined him in McAllister's office. McAllister then advised respondent for the first time of his Miranda rights, reading from a standard card. Respondent indicated he understood his rights, and, having these rights in mind, wished to speak with the officers. Elstad 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, read back to him for correction, initialed and signed by Elstad and both officers. As an afterthought, Elstad added and initialed the sentence, "After leaving the house Robby & I went back to [the] van & Robby handed
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, 331 U.S. 532 (1947), and tainted the subsequent confession as "fruit of the poisonous tree," citing Wong Sun v. United States, 371 U.S. 471 (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. The court found:
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, relying on Wong Sun and Bayer. 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 as having been given without the prescribed Miranda warnings. But the State maintained that any conceivable "taint" had been dissipated prior to the respondent's written confession by McAllister's careful administration of the requisite warnings. The Court
Because of the brief period separating the two incidents, the "cat was sufficiently out of the bag to exert a coercive impact on [respondent's] later admissions." Id., at 678, 658 P. 2d, at 555.
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, 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
Prior to Miranda, the admissibility of an accused's in custody statements was judged solely by whether they were "voluntary" within the meaning of the Due Process Clause. See e. g., Haynes v. Washington, 373 U.S. 503 (1963); Chambers v. Florida, 309 U.S. 227 (1940). If a suspect's statements had been obtained by "techniques and methods offensive to due process," Haynes v. Washington, 373 U. S., at 515, or under circumstances in which the suspect clearly had no opportunity to exercise "a free and unconstrained will," id., at 514, the statements would not be admitted. 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. See Schmerber v. California, 384 U.S. 757, 764 (1966) (defendant may be compelled to supply blood samples). Nor is it concerned
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, 371 U.S. 471 (1963), in which the Court held that evidence and witnesses
But as we explained in Quarles and Tucker, 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. Dunaway v. New York, 442 U.S. 200, 216-217 (1979); Brown v. Illinois, 422 U. S., at 600-602. "The exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth." Id., 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, supra, at 690. 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.
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. Harris v. New York, 401 U.S. 222 (1971). The Court in Harris rejected as an "extravagant extension of the Constitution," the theory that a defendant who had confessed under circumstances that made the confession inadmissible, could thereby enjoy the freedom to "deny every fact disclosed or discovered as a `fruit' of his confession, free from confrontation with his prior statements" and that the voluntariness of his confession would be totally irrelevant. Id., at 225, and n. 2. Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, "the primary criterion of admissibility
In Michigan v. Tucker, supra, the Court was asked to extend the Wong Sun fruits doctrine 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. The Court concluded that the unwarned questioning "did not abridge respondent's constitutional privilege . . . but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege." 417 U. S., at 446. Since there was no actual infringement of the suspect's constitutional rights, the case was not controlled by the doctrine expressed in Wong Sun that fruits of a constitutional violation must be suppressed. In deciding "how sweeping the judicially imposed consequences" of a failure to administer Miranda warnings should be, 417 U. S., at 445, 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. As in Tucker, the absence of any coercion or improper tactics undercuts the twin rationales — trust worthiness and deterrence — for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities. The Court has often noted: " `[A] living witness is not to be
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, 384 U. S., at 478. 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, supra, at 446. If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. 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
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 Bayer:
Even in such extreme cases as Lyons v. Oklahoma, 322 U.S. 596 (1944), in which police forced a full confession from the accused through unconscionable methods of interrogation, the Court has assumed that the coercive effect of the confession
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, by adopting this expansive view of Fifth Amendment compulsion, 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. See 61 Ore. App., at 679, 658 P. 2d, at 555 (Gillette, P. J., concurring). 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. Cf. Michigan v. Mosley, 423 U.S. 96, 107-111 (1975) (WHITE, J., concurring in result). 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. JUSTICE BRENNAN'S contention that it is impossible to perceive any causal distinction between this case and one involving a confession that is coerced by torture is wholly unpersuasive.
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
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
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. See, e. g., United States v. Bowler, 561 F.2d 1323, 1324-1325 (CA9 1977) (certain statements ruled inadmissible by trial court); United States v. Toral, 536 F.2d 893, 896 (CA9 1976); United States v. Knight, 395 F.2d 971, 974-975 (CA2 1968) (custody unclear). The standard Miranda warnings explicitly inform the suspect of his right to consult a lawyer before speaking. Police officers are ill-equipped to pinch-hit for counsel, construing the murky and difficult questions of when "custody" begins or whether a given unwarned statement will ultimately be held admissible. See Tanner v. Vincent, 541 F.2d 932, 936 (CA2 1976), cert. denied, 429 U.S. 1065 (1977).
This Court has never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness. See California v. Beheler, 463 U. S., at 1125-1126, n. 3; McMann v. Richardson, 397 U.S. 759, 769 (1970). If the prosecution has actually violated the defendant's Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison v. United States, 392 U.S. 219 (1968), precludes use of that testimony
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. See New York v. Quarles, 467 U. S., at 655-656. 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
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.
The Self-Incrimination Clause of the Fifth Amendment guarantees every individual that, if taken into official custody,
Even while purporting to reaffirm these constitutional guarantees, the Court has engaged of late in a studied campaign to strip the Miranda decision piecemeal and to undermine the rights Miranda sought to secure. Today's decision not only extends this effort a further step, but delivers a potentially crippling blow to Miranda and the ability of courts to safeguard the rights of persons accused of crime. For at least with respect to successive confessions, the Court today appears to strip remedies for Miranda violations of the "fruit of the poisonous tree" doctrine prohibiting the use of evidence presumptively derived from official illegality.
Two major premises undergird the Court's decision. The Court rejects as nothing more than "speculative" the long-recognized presumption that an illegally extracted confession causes the accused to confess again out of the mistaken belief that he already has sealed his fate, and it condemns as " `extravagant' " the requirement that the prosecution affirmatively rebut the presumption before the subsequent confession
In the alternative, the Court asserts that neither the Fifth Amendment itself nor the judicial policy of deterring illegal police conduct requires the suppression of the "fruits" of a confession obtained in violation of Miranda, reasoning that to do otherwise would interfere with "legitimate law enforcement activity." Ante, at 312. As the Court surely understands, however, "[t]o forbid the direct use of methods . . . but to put no curb on their full indirect use would only invite the very methods deemed `inconsistent with ethical standards and destructive of personal liberty.' " Nardone v. United States, 308 U.S. 338, 340 (1939). If violations of constitutional rights may not be remedied through the well-established rules respecting derivative evidence, as the Court has held today, there is a critical danger that the rights will be rendered nothing more than a mere "form of words." Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).
The Court's decision says much about the way the Court currently goes about implementing its agenda. In imposing its new rule, for example, the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities of custodial interrogation that have led nearly every lower court to reject its simplistic reasoning. Moreover, the Court adopts startling and unprecedented methods of construing constitutional guarantees. Finally, the Court reaches out once again to address issues not before us. For example, although the State of Oregon has conceded that the arresting officers broke the law in this case, the Court goes out of its way to suggest that they may have been objectively justified in doing so.
The threshold question is this: What effect should an admission or confession of guilt obtained in violation of an accused's Miranda rights be presumed to have upon the voluntariness of subsequent confessions that are preceded by Miranda warnings? Relying on the "cat out of the bag" analysis of United States v. Bayer, 331 U.S. 532, 540-541 (1947), the Oregon Court of Appeals held that the first confession presumptively taints subsequent confessions in such circumstances. 61 Or.App. 673, 676, 658 P.2d 552, 554 (1983). On the specific facts of this case, the court below found that the prosecution had not rebutted this presumption. Rather, given the temporal proximity of Elstad's second confession to his first and the absence of any significant intervening circumstances, the court correctly concluded that there had not been "a sufficient break in the stream of events between [the] inadmissible statement and the written confession to insulate the latter statement from the effect of what went before." Ibid.
If this Court's reversal of the judgment below reflected mere disagreement with the Oregon court's application of the "cat out of the bag" presumption to the particular facts of this case, the outcome, while clearly erroneous, would be of little lasting consequence. But the Court rejects the "cat out of the bag" presumption entirely and instead adopts a new rule presuming that "ordinarily" there is no causal connection between a confession extracted in violation of Miranda and a subsequent confession preceded by the usual Miranda warnings. Ante, at 311, 314. The Court suggests that it is merely following settled lower-court practice in adopting this
The Court's marble-palace psychoanalysis is tidy, but it flies in the face of our own precedents, demonstrates a startling unawareness of the realities of police interrogation, and is completely out of tune with the experience of state and federal courts over the last 20 years. Perhaps the Court has grasped some psychological truth that has eluded persons far more experienced in these matters; if so, the Court owes an explanation of how so many could have been so wrong for so many years.
This Court has had long experience with the problem of confessions obtained after an earlier confession has been
One of the factors that can vitiate the voluntariness of a subsequent confession is the hopeless feeling of an accused that he has nothing to lose by repeating his confession, even where the circumstances that rendered his first confession illegal have been removed. As the Court observed in United States v. Bayer, 331 U. S., at 540:
The Court today decries the "irremediable consequences" of this reasoning, ante, at 309, but it has always been clear that even after "let[ting] the cat out of the bag" the accused is not "perpetually disable[d]" from giving an admissible subsequent confession. United States v. Bayer, supra, at 541.
See also Brown v. Illinois, 422 U.S. 590, 605, n. 12 (1975) ("The fact that Brown had made one statement, believed by
Our precedents did not develop in a vacuum. They reflect an understanding of the realities of police interrogation and the everyday experience of lower courts. Expert interrogators, far from dismissing a first admission or confession as creating merely a "speculative and attenuated" disadvantage for a suspect, ante, at 313, understand that such revelations frequently lead directly to a full confession. Standard interrogation manuals advise that "[t]he securing of the first admission is the biggest stumbling block . . . ." A. Aubry & R. Caputo, Criminal Interrogation 290 (3d ed. 1980). If this first admission can be obtained, "there is every reason to expect that the first admission will lead to others, and eventually to the full confession." Ibid.
Interrogators describe the point of the first admission as the "breakthrough" and the "beachhead," R. Royal & S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide 143 (1976), which once obtained will give them enormous "tactical advantages," F. Inbau & J. Reid, Criminal Interrogation and Confessions 82 (2d ed. 1967). See also W. Dienstein, Technics for the Crime Investigator 117 (2d ed. 1974). Thus "[t]he securing of incriminating admissions might well be considered as the beginning of the final stages in crumbling the defenses of the suspect," and the process of obtaining such admissions is described as "the spadework required to motivate the subject into making the full confession." Aubry & Caputo, supra, at 31, 203.
The practical experience of state and federal courts confirms the experts' understanding. From this experience, lower courts have concluded that a first confession obtained without proper Miranda warnings, far from creating merely some "speculative and attenuated" disadvantage for the accused, ante, at 313, frequently enables the authorities to obtain subsequent confessions on a "silver platter." Cagle v. State, 45 Ala. App. 3, 4, 221 So.2d 119, 120, cert. denied, 284 Ala. 727, 221 So.2d 121 (1969).
One police practice that courts have frequently encountered involves the withholding of Miranda warnings until the end of an interrogation session. Specifically, the police
There are numerous variations on this theme. Police may obtain a confession in violation of Miranda and then take a break for lunch or go home for the evening. When questioning is resumed, this time preceded by Miranda warnings, the suspect is asked to "clarify" the earlier illegal confession and to provide additional information.
The variations of this practice are numerous, but the underlying problem is always the same: after hearing the witness testimony and considering the practical realities, courts have confirmed the time-honored wisdom of presuming that a first illegal confession "taints" subsequent confessions, and permitting such subsequent confessions to be admitted at trial only if the prosecution convincingly rebuts the presumption. They have discovered that frequently, "[h]aving once confessed [the accused] was ready to confess some more." State v. Lekas, 201 Kan. 579, 587-588, 442 P.2d 11, 19 (1968). For all practical purposes, the prewarning and postwarning questioning are often but stages of one overall interrogation. Whether or not the authorities explicitly confront the suspect with his earlier illegal admissions makes no significant difference, of course, because the suspect knows that the authorities know of his earlier statements and most frequently will believe that those statements already have sealed his fate. Thus a suspect in such circumstances is likely to conclude that "he might as well answer the questions
I would have thought that the Court, instead of dismissing the "cat out of the bag" presumption out of hand, would have accounted for these practical realities. Compare Nardone v. United States, 308 U. S., at 342 (derivative-evidence rules should be grounded on the "learning, good sense, fairness and courage" of lower-court judges). Expert interrogators and experienced lower-court judges will be startled, to say the least, to learn that the connection between multiple confessions is "speculative" and that a subsequent rendition of Miranda warnings "ordinarily" enables the accused in these circumstances to exercise his "free will" and to make "a rational and intelligent choice whether to waive or invoke his rights." Ante, at 311, 314.
The Court's new view about the "psychological impact" of prior illegalities also is at odds with our Fourth Amendment
The Court seeks to distinguish these precedents on the ground that Fourth Amendment violations require a broader exclusionary rule than do Fifth Amendment violations. Ante, at 306. I address this reasoning in Part II-B, infra. But the question immediately at issue — whether there should be a presumptive rule against finding a causal connection between successive confessions — would surely seem to be controlled by the logic of these Fourth Amendment cases. In part because of the inherent psychological pressures attendant upon an arrest, we have refused to presume that a confession following an illegal arrest is "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Wong Sun v. United States, supra, at 486. See also Brown v. Illinois, supra, at 601-603. If the Court so quickly dismisses the notion of a multiple-confession taint as nothing more than a "speculative and attenuated" disadvantage, ante, at 313, what is to prevent it in the future from deciding that, contrary to the settled understanding, the fact of a proximate illegal arrest is presumptively nothing but a "speculative and attenuated" disadvantage to a defendant who is asked to confess?
Similarly, a confession obtained as a proximate result of confronting the accused with illegally seized evidence is inadmissible as the fruit of the illegal seizure. See, e. g., Fahy v. Connecticut, 375 U.S. 85, 90-91 (1963) (remanding for determination whether admission was so induced); see generally 3 W. LaFave, Search and Seizure § 11.4, pp. 638-642
The correct approach, administered for almost 20 years by most courts with no untoward results, is to presume that an admission or confession obtained in violation of Miranda taints a subsequent confession unless the prosecution can show that the taint is so attenuated as to justify admission of the subsequent confession. See cases cited in nn. 3, 6, supra. Although the Court warns against the "irremediable consequences" of this presumption, ante, at 309, it is obvious that a subsequent confession, just like any other evidence that follows upon illegal police action, does not become "sacred and inaccessible." Silverthorne Lumber Co. v. United States, 251 U. S., at 392. As with any other evidence, the inquiry is whether the subsequent confession " `has been come at by exploitation of [the] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Wong Sun v. United States, 371 U. S., at 488 (citation omitted).
Until today the Court has recognized that the dissipation inquiry requires the prosecution to demonstrate that the official illegality did not taint the challenged confession, and we have rejected the simplistic view that abstract notions of "free will" are alone sufficient to dissipate the challenged taint.
Instead, we have instructed courts to consider carefully such factors as the strength of the causal connection between the illegal action and the challenged evidence, their proximity in time and place, the presence of intervening factors, and the "purpose and flagrancy of the official misconduct." Id., at 603-604.
The Court today shatters this sensitive inquiry and decides instead that, since individuals possess " `will, perception, memory and volition,' " a suspect's "exercise [of] his own volition in deciding whether or not to make a [subsequent] statement to the authorities" must "ordinarily" be viewed as sufficient to dissipate the coercive influence of a prior confession obtained in violation of Miranda. Ante, at 308, 309, 311 (citation omitted). But "[w]ill, perception, memory and volition are only relevant as they provide meaningful alternatives in the causal chain, not as mystical qualities which in themselves invoke the doctrine of attenuation." Hirtle, Inadmissible Confessions and Their Fruits: A Comment on Harrison v. United States, 60 J. Crim. L., C., & P. S. 58, 62 (1969). Thus we have always rejected, until today, the notion that "individual will" alone presumptively serves to insulate a person's actions from the taint of earlier official illegality. See, e. g., United States v. Ceccolini, 435 U.S. 268, 274-275 (1978) (rejecting Government's request for a rule "that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it" and an illegal search); Wong Sun v. United States, supra, at 486 (confession obtained as a proximate result of an illegal arrest is not presumptively admissible as an "intervening independent act of a free will").
Nor have we ever allowed Miranda warnings alone to serve talismanically to purge the taint of prior illegalities. In Brown v. Illinois, for example, we emphasized that
This logic applies with even greater force to the Fifth Amendment problem of successive confessions. Where an accused believes that it is futile to resist because the authorities already have elicited an admission of guilt, the mere rendition of Miranda warnings does not convey the information most critical at that point to ensuring his informed and voluntary decision to speak again: that the earlier confession may not be admissible and thus that he need not speak out of any feeling that he already has sealed his fate. The Court therefore is flatly wrong in arguing, as it does repeatedly, that the mere provision of Miranda warnings prior to subsequent interrogation supplies the accused with "the relevant information" and ensures that a subsequent confession "ordinarily" will be the product of "a rational and intelligent choice" and " `an act of free will.' " Ante, at 311, 314.
Advice that earlier confession may be inadmissible. The most effective means to ensure the voluntariness of an accused's subsequent confession is to advise the accused that his earlier admissions may not be admissible and therefore that he need not speak solely out of a belief that "the cat is out of the bag." Many courts have required such warnings in the absence of other dissipating factors,
This reasoning is unpersuasive for two reasons. First, the whole point of Miranda and its progeny has been to prescribe "bright line" rules for the authorities to follow.
Proximity in time and place. Courts have frequently concluded that a subsequent confession was so removed in time and place from the first that the accused most likely was able fully to exercise his independent judgment in deciding whether to speak again.
The Court today asserts, however, that the traditional requirement that there be a "break in the stream of events" is "inapposite" in this context. Ante, at 310. Yet most lower courts that have considered the question have recognized that our decision in Westover v. United States, 384 U. S., at 494, compels the contrary conclusion.
Intervening factors. Some lower courts have found that because of intervening factors — such as consultation with a lawyer or family members, or an independent decision to speak — an accused's subsequent confession could not fairly be attributed to the earlier statement taken in violation of Miranda.
Purpose and flagrancy of the illegality. Courts have frequently taken the "purpose and flagrancy of the official misconduct" into account in considering whether the taint of illegal action was sufficiently dissipated to render a confession admissible. Brown v. Illinois, 422 U. S., at 604. In part, this inquiry has reflected conviction that particularly egregious misconduct must be deterred through particularly stern action. This factor is also important, however, because it is fair to presume that if the authorities acted flagrantly in violating the law they probably did so for ulterior motives. Thus if the authorities blatantly failed to advise an accused of his constitutional rights while interrogating him and gave him the Miranda warnings only as they handed him a typed confession for his signature, it is fair to presume that they pursued their strategy precisely to weaken his ability knowingly and voluntarily to exercise his constitutional rights.
Perhaps because the Court is discomfited by the radical implications of its failure to apply the settled derivative-evidence presumption to violations of Miranda, it grudgingly qualifies its sweeping pronouncements with the acknowledgment that its new presumption about so-called "ordinary" Miranda violations can be overcome by the accused. Ante, at 311, 314. Explicitly eschewing "a per se rule," ante, at 317, the Court suggests that its approach should not be followed where the police have employed "improper tactics" or "inherently coercive methods" that are "calculated to undermine the suspect's ability to exercise his free will." Ante, at 308, 309, 312, n. 3; see also ante, at 312, 314, 317. The Court thus concedes that lower courts must continue to be free to "examine the surrounding circumstances and the
The Court's concessions are potentially significant, but its analysis is wholly at odds with established dissipation analysis. To begin with, the Court repeatedly suggests that a confession may be suppressed only if the police have used "improper tactics," ante, at 308; this obscure reasoning overlooks the fact that a violation of Miranda is obviously itself an "improper tactic," one frequently used precisely to undermine the voluntariness of subsequent confessions. See supra, at 329-332. The Court's negative implication that Miranda violations are not "improper tactics" is, to say the least, disquieting. Second, the Court reasons that the fact that the accused gave a subsequent confession is itself "highly probative" evidence that he was able to exercise his free will. Ante, at 318. This inaccurate premise follows from the Court's erroneous rejection of the "cat out of the bag" presumption in these circumstances and its inexplicable assertion that the previous extraction of a "guilty secret" neither constitutes compulsion nor compromises the voluntariness of later confessions. Ante, at 312.
Nevertheless, prudent law enforcement officials must not now believe that they are wholly at liberty to refuse to give timely warnings and obtain effective waivers, confident that evidence derived from Miranda violations will be entirely immune from judicial scrutiny. I believe that most state and federal courts will continue to exercise the "learning, good sense, fairness and courage" they have displayed in administering the derivative-evidence rules prior to today's decision. Nardone v. United States, supra, at 342. Lower courts are free to interpret the Court's qualifications, grudging though they may be, as providing sufficient latitude to scrutinize confessions obtained in the wake of Miranda violations to determine whether, in light of all "the surrounding circumstances and the entire course of police conduct," the initial Miranda violation compromised the voluntariness of the accused's subsequent confession. Ante, at 318. Any overt
Moreover, courts must scrutinize the totality of the circumstances even where the authorities have not explicitly exploited the earlier confession. Many of the police practices discussed above do not rely on overt use of the earlier confession at all, but instead are implicit strategies that create leverage on the accused to believe he already has sealed his fate. See supra, at 328-332. These strategies are just as pernicious as overt exploitation of the illegal confession, because they just as surely are "calculated to undermine the suspect's ability to exercise his free will." Ante, at 309.
In sum, today's opinion marks an evisceration of the established fruit of the poisonous tree doctrine, but its reasoning is sufficiently obscure and qualified as to leave state and federal courts with continued authority to combat obvious flouting by the authorities of the privilege against self-incrimination. I am confident that lower courts will exercise this authority responsibly, as they have for the most part prior to this Court's intervention.
Not content merely to ignore the practical realities of police interrogation and the likely effects of its abolition of the derivative-evidence presumption, the Court goes on to assert that nothing in the Fifth Amendment or the general judicial policy of deterring illegal police conduct "ordinarily" requires the suppression of evidence derived proximately from a confession obtained in violation of Miranda. The Court does not limit its analysis to successive confessions, but recurrently refers generally to the "fruits" of the illegal confession. Ante, at 306, 307, 308. Thus the potential impact of the Court's reasoning might extend far beyond the
The Fifth Amendment requires that an accused in custody be informed of important constitutional rights before the authorities interrogate him. Miranda v. Arizona. This requirement serves to combat the "inherently compelling pressures" of custodial questioning "which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," and is a prerequisite to securing the accused's informed and voluntary waiver of his
Twice in the last 10 years, however, the Court has suggested that the Miranda safeguards are not themselves rights guaranteed by the Fifth Amendment. In Michigan v. Tucker, 417 U.S. 433 (1974), the Court stated that Miranda had only prescribed "recommended" procedural safeguards "to provide practical reinforcement for the right against compulsory self-incrimination," the violation of which may not necessarily violate the Fifth Amendment itself. 417 U. S., at 443-444. And in New York v. Quarles, 467 U.S. 649 (1984), the Court last Term disturbingly rejected the argument that a confession "must be presumed compelled because of . . . failure to read [the accused] his Miranda warnings." Id., at 655, n. 5 (emphasis in original).
These assertions are erroneous. Miranda's requirement of warnings and an effective waiver was not merely an exercise of supervisory authority over interrogation practices. As Justice Douglas noted in his Tucker dissent:
Miranda clearly emphasized that warnings and an informed waiver are essential to the Fifth Amendment privilege itself. See supra, at 347 and this page. As noted in Tucker, Miranda did state that the Constitution does not require
The Court today finally recognizes these flaws in the logic of Tucker and Quarles.
Unfortunately, the Court takes away with one hand far more than what it has given with the other. Although the
This narrow compass of the protection against compelled self-incrimination does not accord with our historic understanding of the Fifth Amendment. Although the Self-Incrimination Clause "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature," Schmerber v. California, 384 U.S. 757, 761 (1966), it prohibits the use of such communications "against" the accused in any way. The Fifth Amendment therefore contains a self-executing rule commanding the exclusion of evidence derived from such communications.
In short, the Fifth Amendment's rule excluding "the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege" against self-incrimination itself. Kastigar v. United States, supra, at 452-453. "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all." Silverthorne Lumber Co. v. United States, 251 U. S., at 392 (emphasis added). If the authorities were permitted to use an accused's illegal confession to extract additional confessions or to uncover physical evidence against him, the use of these fruits at trial would violate the Self-Incrimination Clause just as surely as if the original confession itself were introduced. Yet that is precisely what today's decision threatens to encourage.
What possible justification does the Court advance for its evisceration of the Fifth Amendment's exclusionary rule in this context? Two rationales appear to be at work here. First, while acknowledging that a confession obtained in the absence of warnings and an informed waiver is irrebuttably presumed to be coerced in violation of the Self-Incrimination Clause, ante, at 307, the Court recurrently asserts elsewhere that the extraction of such a confession is not really "a Fifth Amendment violation," ante, at 306. Thus the Court suggests that a Miranda violation does not constitute "police
Second, while not discussed in today's opinion, JUSTICE O'CONNOR has recently argued that the Fifth Amendment's exclusion of derivative evidence extends only to confessions obtained when the accused is compelled "to appear before a court, grand jury, or other such formal tribunal," and not merely when he is "subject to informal custodial police interrogation." New York v. Quarles, 467 U. S., at 670 (O'CONNOR, J., concurring in part in judgment and dissenting in part). An accused in this situation, it is argued, "has a much less sympathetic case for obtaining the benefit of a broad suppression ruling." Ibid.
Such an analysis overlooks that, by the time we decided Miranda, it was settled that the privilege against self-incrimination applies with full force outside the chambers of "formal" proceedings. "Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." Miranda v. Arizona, 384 U. S., at 467. See also
The application of the privilege to custodial interrogation simply reflects the realities and purposes of 20th-century police investigations, matters which the Court chooses to ignore. "[P]olice interrogation has in recent times performed the function once accomplished by interrogation of the defendant by the committing magistrate, a practice brought to an end by establishment of the rule against self-incrimination."
For these reasons, the Fifth Amendment itself requires the exclusion of evidence proximately derived from a confession obtained in violation of Miranda. The Court today has altogether evaded this constitutional command, the application of which should not turn simply on whether one is "sympathetic" to suspects undergoing custodial interrogation.
Even if I accepted the Court's conclusion that the Fifth Amendment does not command the suppression of evidence proximately derived from a Miranda violation, I would nevertheless dissent from the Court's refusal to recognize the importance of deterring Miranda violations in appropriate circumstances. Just last Term, in United States v. Leon, 468 U.S. 897 (1984), the Court held that while the Fourth Amendment does not per se require the suppression of evidence derived from an unconstitutional search, the exclusionary rule must nevertheless be invoked where the search was objectively unreasonable. Id., at 919-920, n. 20. Although
The Court today refuses to apply the derivative-evidence rule even to the extent necessary to deter objectively unreasonable failures by the authorities to honor a suspect's Miranda rights. Incredibly, faced with an obvious violation of Miranda, the Court asserts that it will not countenance suppression of a subsequent confession in such circumstances where the authorities have acted "legitimate[ly]" and have not used "improper tactics." Ante, at 312, 314. One can only respond: whither went Miranda?
The Court contends, however, that Michigan v. Tucker, 417 U.S. 433 (1974), already decided that the failure of the authorities to obey Miranda should not be deterred by application of the derivative-evidence rule. Ante, at 308-309. Tucker did not so decide. After criticizing the Fifth Amendment basis for exclusion, the Court in Tucker went on to note another " `prime purpose' " for the exclusion of evidence — " `to deter future unlawful police conduct and thereby effectuate the guarantee[s]' " of the Constitution. 417 U. S., at 446 (citation omitted). The Court emphasized that "[i]n a proper case this rationale would seem applicable to the Fifth Amendment context as well." Id., at 447. Anticipating Leon, however, the Court asserted that the "deterrent purpose" was applicable only where "the police have engaged in willful, or at the very least negligent, conduct . . . ." 417 U. S, at 447. Because the questioning in Tucker occurred before Miranda was announced and was otherwise conducted in an objectively reasonable manner, the exclusion of the derivative evidence solely for failure to comply with the then-nonexistent
Far from rejecting the derivative-evidence rule, Tucker thus expressly invited its application in "a proper case" when the authorities have acted unreasonably. Ibid. Nearly every court and commentator considering the issue have correctly recognized that Tucker's logic and its reliance on the Fourth Amendment "good faith" analysis compel the exclusion of derivative evidence where the police have deliberately, recklessly, or negligently violated the Fifth Amendment requirement of warnings and an effective waiver.
Thus the Court's assertion today that Tucker's "reasoning applies with equal force" to preclude application of the derivative-evidence rule in this case is a gross mischaracterization. Ante, at 308. If the police acted in an objectively unreasonable manner, see Part II-D, infra, Tucker's "reasoning" instead requires suppression of Elstad's subsequent statement.
The Court clearly errs in suggesting that suppression of the "unwarned admission" alone will provide meaningful deterrence. Ante, at 309. The experience of lower courts demonstrates that the police frequently have refused to comply with Miranda precisely in order to obtain incriminating statements that will undermine the voluntariness of the accused's decision to speak again once he has received the usual warnings; in such circumstances, subsequent confessions
The Court simply has not confronted the basic premise of the derivative-evidence rule: that "[t]o forbid the direct use of methods . . . but to put no curb on their full indirect use would only invite the very methods deemed `inconsistent with ethical standards and destructive of personal liberty.' " Nardone v. United States, 308 U. S., at 340.
Not content with its handiwork discussed above, the Court goes on and devotes considerable effort to suggesting that, "[u]nfortunately," Miranda is such an inherently "slippery," "murky," and "difficult" concept that the authorities in general, and the police officer conducting the interrogation in this case in particular, cannot be faulted for failing to advise a suspect of his rights and to obtain an informed waiver. Ante, at 309, 316. Miranda will become "murky," however, only because the Court's opinion today threatens to become a self-fulfilling prophecy. Although borderline cases occasionally have arisen respecting the concepts of "custody" and "interrogation," until today there has been nothing "slippery," "murky," or "difficult" about Miranda in the overwhelming majority of cases. The whole point of the Court's work in this area has been to prescribe "bright line" rules to give clear guidance to the authorities.
Rather than acknowledge that the police in this case clearly broke the law, the Court bends over backwards to suggest why the officers may have been justified in failing to obey Miranda.
Thus because Elstad was in custody, the circumstances of his interrogation were inherently coercive, and the Court once again flouts settled law in suggesting otherwise. "[W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U. S., at 467. The Fifth Amendment's requirement of warnings and an informed waiver is "an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere." Id., at 468.
Second. Without anything in the record to support its speculation, the Court suggests that Officer Burke's violation
Third. The Court contends that the interrogation might be excusable because "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." Ante, at 315. Officer Burke's partner did take Elstad's mother into the kitchen to inform her of the charges, but Burke took Elstad into another room, sat him down, and interrogated him concerning "what he knew about the burglary." Tr. 84. How can the Court possibly describe this interrogation as merely informing Elstad's mother of his arrest?
Finally. The Court suggests that Burke's violation of Elstad's Fifth Amendment rights "may simply have reflected Burke's reluctance to initiate an alarming police procedure before McAllister had spoken with respondent's mother." Ante, at 315-316. As the officers themselves acknowledged, however, the fact that they "[took] the young fellow out of bed" had "[o]bviously" already created "tension and stress" for the mother, Tr. 64, which surely was not lessened when she learned that her son was under arrest. And if Elstad's mother was in earshot, as the Court assumes, it is difficult to perceive how listening to the Miranda warnings would be any more "alarming" to her than what she actually heard — actual interrogation of her son, including Burke's direct accusation that the boy had committed a felony. Most importantly, an individual's constitutional rights should not turn on
The Court's decision today vividly reflects its impatience with the constitutional rights that the authorities attack as standing in the way of combating crime. But the States that adopted the Bill of Rights struck that balance and it is not for this Court to balance the Bill of Rights away on a cost/benefit scale "where the `costs' of excluding illegally obtained evidence loom to exaggerated heights and where the `benefits' of such exclusion are made to disappear with a mere wave of the hand." United States v. Leon, 468 U. S., at 929 (BRENNAN, J., dissenting). It is precisely in that vein, however, that the Court emphasizes that the subsequent confession in this case was "voluntary" and "highly probative evidence," that application of the derivative-evidence presumption would cause the confession to be "irretrievably lost," and that such a result would come at an impermissibly "high cost to legitimate law enforcement activity." Ante, at 312.
Failure of government to obey the law cannot ever constitute "legitimate law enforcement activity." In any event, application of the derivative-evidence presumption does not
The lesson of today's decision is that, at least for now, what the Court decrees are "legitimate" violations by authorities of the rights embodied in Miranda shall "ordinarily" go undeterred. It is but the latest of the escalating number of decisions that are making this tribunal increasingly irrelevant in the protection of individual rights, and that are requiring other tribunals to shoulder the burden.
The Court concludes its opinion with a carefully phrased statement of its holding:
I find nothing objectionable in such a holding. Moreover, because the Court expressly endorses the "bright-line rule of Miranda," which conclusively presumes that incriminating statements obtained from a suspect in custody without administering the required warnings are the product of compulsion,
The desire to achieve a just result in this particular case has produced an opinion that is somewhat opaque and internally inconsistent. If I read it correctly, its conclusion rests on two untenable premises: (1) that the respondent's first confession was not the product of coercion;
The decision in Miranda v. Arizona clarified the law in three important respects. First, it provided the prosecutor with a simple method of overcoming the presumption of coercion.
As I read the Court's opinion, it expressly accepts the proposition that routine Miranda warnings will not be sufficient to overcome the presumption of coercion and thereby make a second confession admissible when an earlier confession is tainted by coercion "by physical violence or other
For me, the most disturbing aspect of the Court's opinion is its somewhat opaque characterization of the police misconduct in this case. The Court appears ambivalent on the question whether there was any constitutional violation.
The source of respondent's constitutional protection is the Fifth Amendment's privilege against compelled self-incrimination that is secured against state invasion by the Due Process Clause of the Fourteenth Amendment. Like many other provisions of the Bill of Rights, that provision is merely a procedural safeguard. It is, however, the specific provision that protects all citizens from the kind of custodial interrogation that was once employed by the Star Chamber,
I respectfully dissent.
JUSTICE BRENNAN cannot seriously mean to equate such situations with the case at bar. Likewise inapposite are the cases the dissent cites concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation. See, e. g., United States ex rel. Sanders v. Rowe, 460 F.Supp. 1128 (ND Ill. 1978); People v. Braeseke, 25 Cal.3d 691, 602 P.2d 384 (1979), vacated on other grounds, 446 U.S. 932 (1980); Smith v. State, 132 Ga.App. 491, 208 S.E.2d 351 (1974). Finally, many of the decisions JUSTICE BRENNAN claims require that the "taint" be "dissipated" simply recite the stock "cat" and "tree" metaphors but go on to find the second confession voluntary without identifying any break in the stream of events beyond the simple administration of a careful and thorough warning. See cases cited in n. 2, supra.
Out of the multitude of decisions JUSTICE BRENNAN cites, no more than half a dozen fairly can be said to suppress confessions on facts remotely comparable to those in the instant case, and some of these decisions involved other elements not present here. See United States v. Pierce, 397 F.2d 128 (CA4 1968) (thorough custodial interrogation at station house); United States v. Pellegrini, 309 F.Supp. 250, 257 (SDNY 1970) (officers induced unwarned suspect to produce "the clinching evidence of his crime"); In re Pablo A. C., 129 Cal.App.3d 984, 181 Cal.Rptr. 468 (1982). (25-minute interrogation of juvenile; court finds causal connection but notes that all prior cited cases relying on "cat-out-of-bag" theory have involved coercion); State v. Lekas, 201 Kan. 579, 442 P.2d 11 (1968) (parolee taken into custody and questioned at courthouse). At least one State Supreme Court cited by JUSTICE BRENNAN that read Miranda as mandating suppression of a subsequent voluntary and fully warned confession did so with express reluctance, convinced that admissibility of a subsequent confession should turn on voluntariness alone. See Brunson v. State, 264 So.2d 817, 819-820 (Miss. 1972).
"DO YOU UNDERSTAND THESE RIGHTS? `Yeh' "DO YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS? `No' "HAVING THESE RIGHTS IN MIND, DO YOU WISH TO TALK TO US NOW? `Yeh I do!' "
The card is dated and signed by respondent and by Officer McAllister. A recent high school graduate, Elstad was fully capable of understanding this careful administering of Miranda warnings.
The Court scrambles to distinguish some of the cases cited in this footnote and in notes 3 and 4, supra, arguing that "JUSTICE BRENNAN cannot seriously mean to equate" these precedents with the case at hand. Ante, at 313, n. 3. To the contrary. Although many of these cases unquestionably raised traditional due process questions on their individual facts, that is not the ground on which they were decided. Instead, courts in every one of the cited cases explicitly or implicitly recognized the applicability of traditional derivative-evidence analysis in evaluating the consequences of Miranda violations.
"It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. `The springs of conduct are subtle and varied,' Mr. Justice Cardozo once observed. `One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others.' Having `released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony." Id., at 224-225 (footnotes omitted).
The Court today cryptically acknowledges the Harrison precedent, ante, at 316-317, but it wholly fails to explain the palpable inconsistencies between its reasoning and the logical force of Harrison. Courts considering the applicability of Harrison to cases similar to the one before us have correctly recognized that it sheds controlling light on whether to presume a causal connection between illegal confessions and an individual's decision to speak again. See, e. g., Randall v. Estelle, 492 F. 2d, at 120-121; Fisher v. Scafati, 439 F. 2d, at 311; People v. Saiz, 620 P. 2d, at 19; Commonwealth v. Wideman, 460 Pa., at 709, 334 A. 2d, at 599; State v. Lavaris, 99 Wash. 2d, at 859, 664 P. 2d, at 1238. See also State v. Ayers, 433 A. 2d, at 362 (citing cases).
Similarly, in Frazier v. Cupp, 394 U.S. 731 (1969), the Court held that police misrepresentations concerning an accomplice, while "relevant" to the admissibility of the defendant's confession, did not vitiate the voluntariness of the confession under the totality of the circumstances of that case. Id., at 739. The defendant there, however, had received warnings which were proper at the time. Ibid. And under the Fifth Amendment, there of course are significant distinctions between the use of third-party statements in obtaining a confession and the use of the accused's own previously compelled illegal admissions.
Finally, the respondent in California v. Beheler, 463 U.S. 1121 (1983) (per curiam), was not in custody at all when he spoke with the police, and the Court rejected his contention that "his lack of awareness [of the consequences of what he said] transformed the situation into a custodial one." Id., at 1125, n. 3. The Court emphasized that a person is in "custody" for purposes of the Fifth Amendment only if "there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Id., at 1125 (citation omitted). Michael Elstad obviously was in custody at the time he was questioned. See Part II-D, infra.
After reviewing the cases cited in nn. 3-6, supra, the Court pronounces that "the majority have explicitly or implicitly recognized that Westover's requirement of a break in the stream of events is inapposite." Ante, at 310, and n. 1. This is incorrect. Whether "explicitly" or "implicitly," the majority of the cited cases have "recognized" precisely the contrary.
As they have in successive-confession cases, most courts considering the issue have recognized that physical evidence proximately derived from a Miranda violation is presumptively inadmissible. See, e. g., United States v. Downing, 665 F.2d 404, 407-409 (CA1 1981); United States v. Castellana, 488 F.2d 65, 67-68 (CA5 1974); In re Yarber, 375 So.2d 1231, 1234-1235 (Ala. 1979); People v. Braeseke, 25 Cal. 3d, at 703-704, 602 P. 2d, at 391-392; People v. Schader, 71 Cal.2d 761, 778-779, 457 P.2d 841, 851-852 (1969); State v. Lekas, 201 Kan., at 588-589, 442 P. 2d, at 19-20; State v. Preston, 411 A.2d 402, 407-408 (Me. 1980); In re Appeal No. 245 (75), 29 Md.App. 131, 147-153, 349 A.2d 434, 444-447 (1975); Commonwealth v. White, 374 Mass. 132, 138-139, 371 N.E.2d 777, 781 (1977), aff'd by an equally divided Court, 439 U.S. 280 (1978); People v. Oramus, 25 N.Y.2d 825, 826-827, 250 N.E.2d 723, 724 (1969); Commonwealth v. Wideman, 478 Pa. 102, 104-107, 385 A.2d 1334, 1335-1336 (1978); Noble v. State, 478 S.W.2d 83, 84 (Tex. Crim. App. 1972); State v. Badger, 141 Vt., at 453-454, 450 A. 2d, at 349-350. Cf. People v. Briggs, 668 P.2d 961, 962-963 (Colo. App. 1983); State v. Williams, 162 W. Va., at 318-319, 249 S. E. 2d, at 764.
". . . We should ask: Would admitting evidence or permitting testimony obtained under these circumstances give the police a significant incentive to act illegally?" A New Look At Confessions: Escobedo — The Second Round 150, 156 (B. George ed. 1967) (remarks of Professor Yale Kamisar).
See also Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L. J. 1198, 1220 (1971); Pitler, 56 Calif. L. Rev., supra n. 16, at 619 ("There appears no logical reason to permit the fruits of a Miranda violation to be admissible. Any other holding, despite the cries of the disastrous effects on law enforcement, would emasculate the rights granted by Miranda") (footnote omitted).
The constitutional violation was established without any evidence that the police actually coerced Miranda in any way. Id., at 445, 491-492. The fact that Miranda had confessed while he was in custody and without having been adequately advised of his right to remain silent was sufficient to establish the constitutional violation. To phrase it another way, the absence of an adequate warning plus the fact of custody created an irrebuttable presumption of coercion. Id., at 492. Thus, the Court wrote:
"To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice." Id., at 457.
See also id., at 448 ("[T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition"); id., at 477.