Seibert, Patane, and when Miranda Violations Bear Fruit
What follows is the reprint of an article that I wrote for the NMCDLA newsletter, “FOR THE DEFENSE” several years ago, by request of a colleague. Please note, and am posting it as written back then, and have not updated the research or even checked to see if I was on the right planet when I wrote it.
Outline of Broad Strokes of Seibert and Patane and similar state constitutional issues
In Missouri v. Seibert, 124 S. Ct. 2601 (2004), the United States Supreme Court (5-4) held that a second, Mirandized statement must be suppressed when there was an initial unwarned statement just before it. The investigative technique of questioning first, then Mirandizing, then questioning again and taking down all the information in a presumptively-admissible form, the high court plurality held, was an end-run around the protection of Miranda. The two-stage interrogation technique used in the case "undermines the Miranda warning and obscures its meaning," according to concurring Kennedy, the tie-breaker. The second statement was the testimonial fruit (i.e., statements) of the first, illegally-taken statement, and must be suppressed.
There are weaknesses in Seibert. Justice Kennedy, the tie-breaking vote, adopts a severely weakened form of the rule (for example, if there was enough time between interrogations, or enough warnings, or different officers, Kennedy would not suppress even direct testimonial fruit). Also, one of the themes in Seibert is the blatant police misconduct—adopting a policy designed to break folks sans Miranda. The facts in Seibert were outrageous: The officer involved had "resort[ed] to an interrogation technique he had been taught." At the first questioning session he had made "a 'conscious decision' to withhold Miranda warnings" and, after obtaining incriminating statements, had called a short recess (twenty minutes) before resuming the questioning. At the outset of the second session the officer did advise the suspect of her rights, and did obtain a waiver, but he then confronted the suspect with the statements she had made during the first session (when she had not been warned of her rights). Not surprisingly, the suspect confessed again. The new statement was "'largely a repeat of information . . . obtained' prior to the warning." Arguably, a showing of overreaching by police might be required, under some interpretations of Seibert.
The same day, the United States Supreme Court in United States v. Patane, 124 S. Ct. 2620 (2004), ruled (again, 5-4) that the physical fruit (i.e., gun found where accused said it was) of a Miranda violation should not be suppressed. (Kennedy was the one who changed sides.) Thomas wrote the plurality opinion for the winning side in Patane, and for rather illogical reasons, held that physical fruit of a Miranda violation (such as Patane’s gun, found pursuant to his un-warned custodial statement) is not constitutionally protected.
There are two potential ways to get around Patane.
The first is to show that the actual statement that was the product of the Miranda violation was involuntary. The Patane case is limited to the case where there is a failure to Mirandize but the statement was nonetheless “voluntary.” (While a “voluntary statement taken after a Miranda violation” is an oxymoron under Miranda itself, this is what I would call a classic legal fiction, is quite common to find in recent Miranda-eroding cases.) The question presented in Patane was "whether a failure to give a suspect the warnings prescribed by Miranda requires suppression of the physical fruits of the suspect's unwarned but voluntary statements." There are several passages in the somewhat unintelligible and inconsistent plurality opinion (Thomas) that state clearly that the case would have the opposite result if the statements were involuntary—coerced, as opposed to just a product of a technical Miranda violation. (Offensive, I know, but that’s Thomas.) When a statement is coerced or not voluntary, under Patane, using the fruit of that statement (the gun) offends the constitution. (If you are asking yourself what could be the logical grounds for this distinction, so are most law professors who write about this for a living.)
The second way to cope with Patane is to engage the state constitution. New Mexico courts have never had opportunity to reach the issue, but other states have, quite more intelligently than Justice Thomas, held that their respective state constitutions compel suppression of physical fruit of Miranda violations, in addition to testimonial fruit. The most basic rationale is that to hold otherwise (like Thomas did) is to reward police for violating Miranda. The other very elementary rationale is that, well, fruit is fruit—and that the 5th amendment-type rights have had a tainted fruits analysis for much longer than have the 4th amendment-type rights. (I like to think of this as states throwing the finger at Justice Thomas, but that’s a personal opinion.)
I have gotten a bit behind in keeping a running tally of such states, but at last I checked, at least arguably, the states of Oregon, Washington, Massachusetts, Idaho, and Missouri have suppressed the physical fruit of a Miranda violation. I can update this and provide the cases with summaries for you all.