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, 384 U.S. 436 (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 because of bedsores on his body. 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 in the course of burning the family's mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert's son Darian and a friend set the fire, and Donald died.
Five days later, the police awakened Seibert at 3 a.m. at a hospital where Darian was being treated for burns. In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, Officer Richard Hanrahan that he refrain from giving Miranda warnings. After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes, Officer Hanrahan questioned her
After being charged with first-degree murder for her role in Donald's death, Seibert sought to exclude both her prewarning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a "conscious
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, 470 U.S. 298 (1985). No. 23729, 2002 WL 114804 (Jan. 30, 2002) (not released for publication).
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." 93 S.W.3d 700, 701 (2002) (en banc). The court distinguished Elstad on the ground that warnings had not intentionally been withheld there, 93 S. W. 3d, at 704, 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," id., at 706. Since there were "no circumstances that would seem to dispel the effect of the Miranda violation," the court held that the postwarning confession was involuntary and therefore inadmissible. Ibid. To allow the police to achieve an "end run" around Miranda, the court explained, would encourage Miranda violations and diminish Miranda's role in protecting the privilege against self-incrimination. 93 S. W. 3d, at 706-707. Three judges dissented, taking the view that Elstad applied even though the police intentionally withheld Miranda warnings before the initial statement, and believing that "Seibert's unwarned responses to Officer Hanrahan's questioning did not prevent
We granted certiorari, 538 U.S. 1031 (2003), to resolve a split in the Courts of Appeals. Compare United States v. Gale, 952 F.2d 1412, 1418 (CADC 1992) (while "deliberate `end run' around Miranda" would provide cause for suppression, case involved no conduct of that order); United States v. Carter, 884 F.2d 368, 373 (CA8 1989) ("Elstad did not go so far as to fashion a rule permitting this sort of end run around Miranda"), with United States v. Orso, 266 F.3d 1030, 1034-1039 (CA9 2001) (en banc) (rejecting argument that "tainted fruit" analysis applies because deliberate withholding of Miranda warnings constitutes an "improper tactic"); United States v. Esquilin, 208 F.3d 315, 319-321 (CA1 2000) (similar). We now affirm.
"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.'" Bram v. United States, 168 U.S. 532, 542 (1897). A parallel rule governing the admissibility of confessions in state courts emerged from the Due Process Clause of the Fourteenth Amendment, see, e. g., Brown v. Mississippi, 297 U.S. 278 (1936), which governed state cases until we concluded in Malloy v. Hogan, 378 U.S. 1, 8 (1964), that "[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." In unifying the Fifth and Fourteenth Amendment voluntariness tests, Malloy "made clear what had already become apparent—that the substantive and procedural safeguards
In Miranda, we explained that the "voluntariness doctrine in the state cases . . . encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice," id., at 464-465. We appreciated the difficulty of judicial enquiry post hoc into the circumstances of a police interrogation, Dickerson v. United States, 530 U.S. 428, 444 (2000), and recognized that "the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk" that the privilege against self-incrimination will not be observed, id., at 435. Hence our concern that the "traditional totality-of-the-circumstances" test posed an "unacceptably great" risk that involuntary custodial confessions would escape detection. Id., at 442.
Accordingly, "to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause," Chavez v. Martinez, 538 U.S. 760, 790 (2003) (KENNEDY, J., concurring in part and dissenting in part), 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," 384 U. S., at 467. 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.
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, supra. 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. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. App. 31-32. Consistently with the officer's testimony, the Police Law Institute, for example, instructs that "officers may conduct a two-stage interrogation. . . . At any point during the pre-Miranda interrogation,
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, 384 U. S., at 464-465, and held that a suspect must be "adequately and effectively" advised of the choice the Constitution guarantees, id., at 467. 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.
Just as "no talismanic incantation [is] required to satisfy [Miranda's] strictures," California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam), it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. "The inquiry is simply whether the warnings reasonably `conve[y] to [a suspect] his rights as required by Miranda.'" Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (quoting Prysock, supra, at 361). 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"
There is no doubt about the answer that proponents of question-first give to this question about the effectiveness of
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, 470 U.S. 298 (1985), but the argument disfigures that case. In Elstad, the police went to the young suspect's house to take him into custody on a charge of burglary. Before the arrest, one officer spoke with the suspect's mother, while the other one joined the suspect in a "brief stop in the living room," id., at 315, where the officer said he "felt" the young man was involved in a burglary, id., at 301 (internal quotation marks omitted). The suspect acknowledged he had been at the scene. Ibid. This Court noted that the pause in the living room "was not to interrogate the suspect but to notify his mother of the reason for his arrest," id., at 315, and described the incident as having "none of the earmarks of coercion," id., at 316. 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' or . . . may simply have reflected . . . reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent's mother." Id., at 315-316. At the outset of a later and systematic station house interrogation going well beyond the scope of the laconic prior admission, the suspect was given Miranda warnings and made a full confession. Elstad, supra, at 301, 314-315. In holding the
The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect's shoes could have seen the station house questioning as a new and distinct experience, the Miranda
At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings.
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.
JUSTICE BREYER, concurring.
In my view, the following simple rule should apply to the two-stage interrogation technique: Courts should exclude the "fruits" of the initial unwarned questioning unless the failure to warn was in good faith. Cf. Oregon v. Elstad, 470 U.S. 298, 309, 318, n. 5 (1985); United States v. Leon, 468 U.S. 897 (1984). I believe this is a sound and workable approach to the problem this case presents. Prosecutors and judges have long understood how to apply the "fruits" approach, which they use in other areas of law. See Wong Sun v. United States, 371 U.S. 471 (1963). And in the workaday
I believe the plurality's approach in practice will function as a "fruits" test. The truly "effective" Miranda warnings on which the plurality insists, ante, at 615, will occur only when certain circumstances — a lapse in time, a change in location or interrogating officer, or a shift in the focus of the questioning — intervene between the unwarned questioning and any postwarning statement. Cf. Taylor v. Alabama, 457 U.S. 687, 690 (1982) (evidence obtained subsequent to a constitutional violation must be suppressed as "fruit of the poisonous tree" unless "intervening events break the causal connection").
I consequently join the plurality's opinion in full. I also agree with JUSTICE KENNEDY'S opinion insofar as it is consistent with this approach and makes clear that a good-faith exception applies. See post, at 622 (opinion concurring in judgment).
JUSTICE KENNEDY, concurring in the judgment.
The interrogation technique used in this case is designed to circumvent Miranda v. Arizona, 384 U.S. 436 (1966). It undermines the Miranda warning and obscures its meaning. The plurality opinion is correct to conclude that statements obtained through the use of this technique are inadmissible. Although I agree with much in the careful and convincing opinion for the plurality, my approach does differ in some respects, requiring this separate statement.
The Miranda rule has become an important and accepted element of the criminal justice system. See Dickerson v. United States, 530 U.S. 428 (2000). At the same time, not every violation of the rule requires suppression of the evidence obtained. Evidence is admissible when the central
Oregon v. Elstad, 470 U.S. 298 (1985), reflects this approach. In Elstad, a suspect made an initial incriminating statement at his home. The suspect had not received a Miranda warning before making the statement, apparently because it was not clear whether the suspect was in custody at the time. The suspect was taken to the station house, where he received a proper warning, waived his Miranda rights, and made a second statement. He later argued that the postwarning statement should be suppressed because it was related to the unwarned first statement, and likely induced or caused by it. The Court held that, although a Miranda violation made the first statement inadmissible, the postwarning statements could be introduced against the accused because "neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression"
In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. See Elstad, 470 U. S., at 309 ("It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings . . . so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period"). That approach would serve "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 . . . testimony." Id., at 308.
This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda. The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As JUSTICE SOUTER points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Miranda
Further, the interrogating officer here relied on the defendant's prewarning statement to obtain the postwarning statement used against her at trial. The postwarning interview resembled a cross-examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. See App. 70 ("`Trice, didn't you tell me that he was supposed to die in his sleep?"). This shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.
The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of "knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Moran v. Burbine, 475 U.S. 412, 423-424 (1986). When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.
The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on "whether [the] Miranda warnings delivered midstream could have been effective enough to accomplish their object" given the specific facts of the case. Ante, at 615. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations.
The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Cf. Westover v. United States, decided with Miranda v. Arizona, 384 U.S. 436 (1966). Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are inadmissible and the conviction cannot stand.
For these reasons, I concur in the judgment of the Court.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE THOMAS join, dissenting.
The plurality devours Oregon v. Elstad, 470 U.S. 298 (1985), even as it accuses petitioner's argument of "disfigur[ing]" that decision. Ante, at 614. I believe that we
On two preliminary questions I am in full agreement with the plurality. First, the plurality appropriately follows Elstad in concluding that Seibert's statement cannot be held inadmissible under a "fruit of the poisonous tree" theory. Ante, at 612, n. 4 (internal quotation marks omitted). Second, the plurality correctly declines to focus its analysis on the subjective intent of the interrogating officer.
This Court has made clear that there simply is no place for a robust deterrence doctrine with regard to violations of Miranda v. Arizona, 384 U.S. 436 (1966). See Dickerson v. United States, 530 U.S. 428, 441 (2000) ("Our decision in [Elstad] — refusing to apply the traditional `fruits' doctrine developed in Fourth Amendment cases — . . . simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment"); Elstad, supra, at 306 (unlike the Fourth Amendment exclusionary rule, the "Miranda exclusionary rule . . . serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself"); see also United States v. Patane, post, at 644-645 (KENNEDY, J., concurring in judgment) (refusal to suppress evidence obtained following an unwarned confession in Elstad, New York v. Quarles, 467 U.S. 649 (1984), and Harris v. New York, 401 U.S. 222 (1971), was based on "our recognition that the concerns underlying the Miranda . . . rule must be accommodated to other objectives of the criminal justice system"). Consistent with that view, the Court today refuses to apply the traditional "fruits" analysis to the physical fruit of a claimed Miranda violation. Patane, post, p. 630. The plurality
Although the analysis the plurality ultimately espouses examines the same facts and circumstances that a "fruits" analysis would consider (such as the lapse of time between the two interrogations and change of questioner or location), it does so for entirely different reasons. The fruits analysis would examine those factors because they are relevant to the balance of deterrence value versus the "drastic and socially costly course" of excluding reliable evidence. Nix v. Williams, 467 U.S. 431, 442-443 (1984). The plurality, by contrast, looks to those factors to inform the psychological judgment regarding whether the suspect has been informed effectively of her right to remain silent. The analytical underpinnings of the two approaches are thus entirely distinct, and they should not be conflated just because they function similarly in practice. Cf. ante, at 617-618 (BREYER, J., concurring).
The plurality's rejection of an intent-based test is also, in my view, correct. Freedom from compulsion lies at the heart of the Fifth Amendment, and requires us to assess whether a suspect's decision to speak truly was voluntary. Because voluntariness is a matter of the suspect's state of mind, we focus our analysis on the way in which suspects experience interrogation. See generally Miranda, 384 U. S., at 455 (summarizing psychological tactics used by police that "undermin[e]" the suspect's "will to resist," and noting that "the very fact of custodial interrogation . . . trades on the weakness of individuals"); id., at 467 ("[I]n-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").
Thoughts kept inside a police officer's head cannot affect that experience. See Moran v. Burbine, 475 U.S. 412, 422
Because the isolated fact of Officer Hanrahan's intent could not have had any bearing on Seibert's "capacity to comprehend and knowingly relinquish" her right to remain silent, Moran, supra, at 422, it could not by itself affect the voluntariness of her confession. Moreover, recognizing an exception to Elstad for intentional violations would require focusing
These evidentiary difficulties have led us to reject an intent-based test in several criminal procedure contexts. For example, in New York v. Quarles, supra, one of the factors that led us to reject an inquiry into the subjective intent of the police officer in crafting a test for the "public safety" exception to Miranda was that officers' motives will be "largely unverifiable." 467 U. S., at 656. Similarly, our opinion in Whren v. United States, 517 U.S. 806, 813-814 (1996), made clear that "the evidentiary difficulty of establishing subjective intent" was one of the reasons (albeit not the principal one) for refusing to consider intent in Fourth Amendment challenges generally.
For these reasons, I believe that the approach espoused by JUSTICE KENNEDY is ill advised. JUSTICE KENNEDY would extend Miranda's exclusionary rule to any case in which the use of the "two-step interrogation technique" was "deliberate"
The plurality's adherence to Elstad, and mine to the plurality, end there. Our decision in Elstad rejected two lines of argument advanced in favor of suppression. The first was based on the "fruit of the poisonous tree" doctrine, discussed above. The second was the argument that the "lingering compulsion" inherent in a defendant's having let the "cat out of the bag" required suppression. 470 U. S., at 311. The Court of Appeals of Oregon, in accepting the latter argument, had endorsed a theory indistinguishable from the one today's plurality adopts: "[T]he coercive impact of the unconstitutionally obtained statement remains, because in a defendant's mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible." State v. Elstad, 61 Or.App. 673, 677, 658 P.2d 552, 554 (1983).
We rejected this theory outright. We did so not because we refused to recognize the "psychological impact of the suspect's conviction that he has let the cat out of the bag," but because we refused to "endo[w]" those "psychological effects" with "constitutional implications." 470 U. S., at 311. To do so, we said, would "effectively immuniz[e] a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver," an immunity that "comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual's
I would analyze the two-step interrogation procedure under the voluntariness standards central to the Fifth Amendment and reiterated in Elstad. Elstad commands that if Seibert's first statement is shown to have been involuntary, the court must examine whether the taint dissipated through the passing of time or a change in circumstances: "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." Id., at 310 (citing Westover v. United States, decided with Miranda, 384 U. S., at 494). In addition, Seibert's second statement should be suppressed if she showed that it was involuntary despite the Miranda warnings. Elstad, supra, at 318 ("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"). Although I would leave this analysis for the Missouri courts to conduct on remand, I note that, unlike the officers in Elstad, Officer Hanrahan referred to Seibert's unwarned statement during the second part of the interrogation when she made a statement at odds with her unwarned confession. App. 70 ("`Trice, didn't you tell me that he was supposed to die in his sleep?"); cf. Elstad, supra, at 316 (officers did not "exploit the unwarned admission to pressure respondent into waiving his right to remain silent"). Such a tactic may bear on the voluntariness inquiry. Cf. Frazier v. Cupp, 394 U.S. 731, 739 (1969) (fact that police had falsely
* * *
Because I believe that the plurality gives insufficient deference to Elstad and that JUSTICE KENNEDY places improper weight on subjective intent, I respectfully dissent.
It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e. g., C. O'Hara & G. O'Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting custodial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buckley) (same); John Reid & Associates, Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question-first tactic, because they understand that Oregon v. Elstad, 470 U.S. 298 (1985), involved an officer's good-faith failure to warn. See, e. g., Inbau, Reid, & Buckley 241 (Elstad's "facts as well as [its] specific holding" instruct that "where an interrogator has failed to administer the Miranda warnings in the mistaken belief that, under the circumstances of the particular case, the warnings were not required, . . . corrective measures . . . salvage an interrogation opportunity").