OPINION OF SOUTER, J. MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE
SEIBERT

															on writ of certiorari to the supreme court of
missouri

															[June 28, 2004]

															   Justice Souter announced the
judgment of the Court and delivered an opinion, in which Justice
Stevens, Justice Ginsburg, and Justice Breyer join.

															   This case tests a police protocol
for custodial interrogation that calls for giving no warnings of
the rights to silence and counsel until interrogation has produced
a confession. Although such a statement is generally inadmissible,
since taken in violation of Miranda v. Arizona , 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.

															I

															   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, Hanrahan questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm
and repeating “Donald was also to die in his sleep.” App. 59
(internal quotation marks omitted). After Seibert finally admitted
she knew Donald was meant to die in the fire, she was given a
20-minute coffee and cigarette break. Officer Hanrahan then turned
on a tape recorder, gave Seibert the Miranda warnings, and
obtained a signed waiver of rights from her. He resumed the
questioning with “Ok, ’trice, we’ve been talking for a little while
about what happened on Wednesday the twelfth, haven’t we?,” App.
66, and confronted her with her prewarning statements:

															   Hanrahan: “Now, in discussion you told us, you
told us

															   that there was a[n] understanding about
Donald.”

															   Seibert: “Yes.”

															   Hanrahan: “Did that take place earlier that
morning?”

															   Seibert: “Yes.”

															   Hanrahan: “And what was the understanding
about

															   Donald?”

															   Seibert: “If they could get him out of the
trailer, to take    him out of the trailer.”

															   Hanrahan: “And if they couldn’t?”

															   Seibert: “I, I never even thought about it. I
just figured

															   they would.”

															   Hanrahan: “ ’Trice, didn’t you tell me
that he was

															   supposed to die in his sleep?”

															   Seibert: “If that would happen, ’cause he was
on that

															   new medicine, you know … .”

															   Hanrahan: “The Prozac? And it makes him
sleepy. So

															   he was supposed to die in his sleep?”

															   Seibert: “Yes.” Id. , at 70.

															   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 decision” to
withhold Miranda warnings, thus resorting to an
interrogation technique he had been taught: question first, then
give the warnings, and then repeat the question “until I get the
answer that she’s already provided once.” App. 31–34. He
acknowledged that Seibert’s ultimate statement was “largely a
repeat of information … obtained” prior to the warning. Id. , at 30.

															   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). 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. One judge
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 her
from waiving her rights and confessing.” 93 S. W. 3d, at 708
(opinion of Benton, J.).

															   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.

															II

															   “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 surrounding admissibility of confessions in
state cases had become exceedingly exacting, reflecting all the
policies embedded in the privilege” against self-incrimination. Miranda , 384 U. S., at 464.

															   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.[ Footnote
1 ] Conversely, giving the warnings and getting a waiver has
generally produced a virtual ticket of admissibility; maintaining
that a statement is involuntary even though given after warnings
and voluntary waiver of rights requires unusual stamina, and
litigation over voluntariness tends to end with the finding of a
valid waiver. See Berkemer v . McCarty , 468 U. S. 420 , 433,
n. 20 (1984) (“[C]ases in which a defendant can make a
colorable argument that a self-incriminating statement was
‘compelled’ despite the fact that the law enforcement authorities
adhered to the dictates of Miranda are rare”). To point
out the obvious, this common consequence would not be common at all
were it not that Miranda warnings are customarily given
under circumstances allowing for a real choice between talking and
remaining silent.

															III

															   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, usually after arrestees have confessed, officers may
then read the Miranda warnings and ask for a waiver. If
the arrestees waive their Miranda rights, officers will be
able to repeat any subse-quent incriminating statements
later in court.” Police Law Institute, Illinois Police Law Manual
83 (Jan. 2001–Dec. 2003),
http://www.illinoispolicelaw.org/training/lessons/ ILPLMIR.pdf (as
visited Dec. 31, 2003, and available in the Clerk of Court’s case
file) (hereinafter Police Law Manual) (emphasis in
original).[ Footnote 2 ] The
upshot of all this advice is a question-first practice of some
popularity, as one can see from the reported cases describing its
use, sometimes in obedience to departmental policy.[ Footnote 3 ]

															IV

															   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” as Miranda requires. Could the warnings effectively advise
the suspect that he had a real choice about giving an admissible
statement at that juncture? Could they reasonably convey that he
could choose to stop talking even if he had talked earlier? For
unless the warnings could place a suspect who has just been
interrogated in a position to make such an informed choice, there
is no practical justification for accepting the formal warnings as
compliance with Miranda , or for treating the second stage
of interrogation as distinct from the first, unwarned and
inadmissible segment.[ Footnote
4 ]

															   There is no doubt about the answer that
proponents of question-first give to this question about the
effectiveness of warnings given only after successful
interrogation, and we think their answer is correct. By any
objective measure, applied to circumstances exemplified here, it is
likely that if the interrogators employ the technique of
withholding warnings until after interrogation succeeds in
eliciting a confession, the warnings will be ineffective in
preparing the suspect for successive interrogation, close in time
and similar in content. After all, the reason that question-first
is catching on is as obvious as its manifest purpose, which is to
get a confession the suspect would not make if he understood his
rights at the outset; the sensible underlying assumption is that
with one confession in hand before the warnings, the interrogator
can count on getting its duplicate, with trifling additional
trouble. Upon hearing warnings only in the aftermath of
interrogation and just after making a confession, a suspect would
hardly think he had a genuine right to remain silent, let alone
persist in so believing once the police began to lead him over the
same ground again.[ Footnote 5 ]
A more likely reaction on a suspect’s part would be perplexity
about the reason for discussing rights at that point, bewilderment
being an unpromising frame of mind for knowledgeable decision. What
is worse, telling a suspect that “anything you say can and will be
used against you,” without expressly excepting the statement just
given, could lead to an entirely reasonable inference that what he
has just said will be used, with subsequent silence being of no
avail. Thus, when Miranda warnings are inserted in the
midst of coordinated and continuing interrogation, they are likely
to mislead and “depriv[e] a defendant of knowledge essential to his
ability to understand the nature of his rights and the consequences
of abandoning them.” Moran v. Burbine , 475 U. S. 412 , 424
(1986). By the same token, it would ordinarily be unrealistic to
treat two spates of integrated and proximately conducted
questioning as independent interrogations subject to independent
evaluation simply because Miranda warnings formally
punctuate them in the middle.

															V

															   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 second statement
admissible and voluntary, Elstad rejected the “cat out of
the bag” theory that any short, earlier admission, obtained in
arguably innocent neglect of Miranda , determined the
character of the later, warned confession, Elstad , 470 U.
S., at 311–314; on the facts of that case, the Court thought any
causal connection between the first and second responses to the
police was “speculative and attenuated,” id. , at 313.
Although the Elstad Court expressed no explicit conclusion
about either officer’s state of mind, it is fair to read Elstad as treating the living room conversation as a
good-faith Miranda mistake, not only open to correction by
careful warnings before systematic questioning in that particular
case, but posing no threat to warn-first practice generally. See Elstad , supra , at 309 (characterizing the
officers’ omission of Miranda warnings as “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”); 470 U. S., at 318,
n. 5 (Justice Brennan’s concern in dissent that Elstad would invite question-first practice “distorts the
reasoning and holding of our decision, but, worse, invites trial
courts and prosecutors to do the same”).

															   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 warnings could have made sense as presenting a
genuine choice whether to follow up on the earlier admission.

															   At the opposite extreme are the facts here,
which by any objective measure reveal a police strategy adapted to
undermine the Miranda warnings.[ Footnote 6 ] The unwarned interrogation was conducted in
the station house, and the questioning was systematic, exhaustive,
and managed with psychological skill. When the police were finished
there was little, if anything, of incriminating potential left
unsaid. The warned phase of questioning proceeded after a pause of
only 15 to 20 minutes, in the same place as the unwarned segment.
When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable
misimpression that the advice that anything Seibert said could be
used against her also applied to the details of the inculpatory
statement previously elicited. In particular, the police did not
advise that her prior statement could not be used.[ Footnote 7 ] Nothing was said or done to
dispel the oddity of warning about legal rights to silence and
counsel right after the police had led her through a systematic
interrogation, and any uncertainty on her part about a right to
stop talking about matters previously discussed would only have
been aggravated by the way Officer Hanrahan set the scene by saying
“we’ve been talking for a little while about what happened on
Wednesday the twelfth, haven’t we?” App. 66. The impression that
the further questioning was a mere continuation of the earlier
questions and responses was fostered by references back to the
confession already given. It would have been reasonable to regard
the two sessions as parts of a continuum, in which it would have
been unnatural to refuse to repeat at the second stage what had
been said before. These circumstances must be seen as challenging
the comprehensibility and efficacy of the Miranda warnings
to the point that a reasonable person in the suspect’s shoes would
not have understood them to convey a message that she retained a
choice about continuing to talk.[ Footnote 8 ]

															VI

															   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 . Footnote 1 “[T]he burden of showing admissibility rests,
of course, on the prosecution.” Brown v. Illinois , 422 U. S. 590 , 604
(1975). The prosecution bears the burden of proving, at least by a
preponderance of the evidence, the Miranda waiver, Colorado v. Connelly , 479 U. S. 157 , 169
(1986), and the voluntariness of the confession, Lego v. Twomey , 404
U. S. 477 , 489 (1972). Footnote 2 Emphasizing the impeachment exception to the Miranda rule approved by this Court, Harris v. New York , 401 U. S. 222 (1971),
some training programs advise officers to omit Miranda warnings altogether or to continue questioning after the suspect
invokes his rights. See, e.g. , Police Law Manual 83
(“There is no need to give a Miranda warning before asking
questions if … the answers given … will not be required by the
prosecutor during the prosecution’s case-in-chief”); California
Commission on Peace Officer Standards and Training, Video Training
Programs for California Law Enforcement, Miranda: Post-Invocation
Questioning (broadcast July 11, 1996) (“We … have been encouraging
you to continue to question a suspect after they’ve invoked their Miranda rights”); D. Zulawski & D. Wicklander,
Practical Aspects of Interview and Interrogation 50–51 (2d ed.
2002) (describing the practice of “[b]eachheading” as useful for
impeachment purpose (emphasis deleted)); see also Weisselberg,
Saving Miranda, 84 Cornell L. Rev. 109, 110, 132–139
(1998) (collecting California training materials encouraging
questioning “outside Miranda ”). This training is reflected
in the reported cases involving deliberate questioning after
invocation of Miranda rights. See, e.g. , California Attorneys for Criminal Justice v. Butts , 195 F.3d 1039, 1042–1044 (CA9 2000); Henry v. Kernan , 197 F. 3d 1021, 1026 (CA9 1999); People v. Neal , 31 Cal. 4th 63, 68, 72 P. 3d
280, 282 (2003); People v. Peevy , 17 Cal. 4th
1184 , 1189, 953 P. 2d 1212, 1215 (1998). Scholars have
noted the growing trend of such practices. See, e.g. , Leo,
Questioning the Relevance of Miranda in the Twenty-First
Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the
Stationhouse After Dickerson , 99 Mich. L. Rev. 1121,
1123–1154 (2001).

															   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”). Footnote 3 See, e.g. , United States v. Orso , 266 F. 3d 1030, 1032–1033 (CA9 2001) (en banc); Pope v. Zenon , 69 F.3d 1018, 1023–1024 (CA9
1995), overruled by Orso , supra; Cooper v. Dupnik , 963 F.2d 1220, 1224–1227, 1249 (CA9 1992) (en
banc); United States v. Carter , 884 F. 2d
368, 373 (CA9 1989); United States v. Esquilin ,
208 F. 3d 315, 317 (CA1 2000); Davis v. United
States , 724 A. 2d 1163, 1165–1166 (D. C. App.
1998). Footnote 4 Respondent Seibert argues that her second
confession should be excluded from evidence under the doctrine
known by the metaphor of the “fruit of the poisonous tree,”
developed in the Fourth Amendment context in Wong Sun v. United States , 371 U. S. 471 (1963):
evidence otherwise admissible but discovered as a result of an
earlier violation is excluded as tainted, lest the law encourage
future violations. But the Court in Elstad rejected the Wong Sun fruits doctrine for analyzing the admissibility
of a subsequent warned confession following “an initial failure . .
. to administer the warnings required by Miranda .” Elstad , 470 U. S., at 300. In Elstad , “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” did not “so tain[t]
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.” Id. , at 309. Elstad held that
“a suspect who has once responded to unwarned yet uncoercive
questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite Miranda warnings.” Id. , at 318. In a sequential confession case,
clarity is served if the later confession is approached by asking
whether in the circumstances the Miranda warnings given
could reasonably be found effective. If yes, a court can take up
the standard issues of voluntary waiver and voluntary statement; if
no, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements
are realistically seen as parts of a single, unwarned sequence of
questioning. Footnote 5 It bears emphasizing that the effectiveness Miranda assumes the warnings can have must potentially
extend through the repeated interrogation, since a suspect has a
right to stop at any time. It seems highly unlikely that a suspect
could retain any such understanding when the interrogator leads him
a second time through a line of questioning the suspect has already
answered fully. The point is not that a later unknowing or
involuntary confession cancels out an earlier, adequate warning;
the point is that the warning is unlikely to be effective in the
question-first sequence we have described. Footnote 6 Because the intent of the officer will rarely
be as candidly admitted as it was here (even as it is likely to
determine the conduct of the interrogation), the focus is on facts
apart from intent that show the question-first tactic at work. Footnote 7 We do not hold that a formal addendum warning
that a previous statement could not be used would be sufficient to
change the character of the question-first procedure to the point
of rendering an ensuing statement admissible, but its absence is
clearly a factor that blunts the efficacy of the warnings and
points to a continuing, not a new, interrogation. Footnote 8 Because we find that the warnings were
inadequate, there is no need to assess the actual voluntariness of
the statement. BREYER, J., CONCURRING MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE
SEIBERT

															on writ of certiorari to the supreme court of
missouri

															[June 28, 2004]

															   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 world of criminal law enforcement the
administrative simplicity of the familiar has significant
advantages over a more complex exclusionary rule. Cf. post , at 6–7 (O’Connor, J., dissenting).

															   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 13–14, 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 5 (opinion
concurring in judgment). KENNEDY, J., CONCURRING IN JUDGMENT MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE
SEIBERT

															on writ of certiorari to the supreme court of
missouri

															[June 28, 2004]

															   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
concerns of Miranda are not likely to be implicated and
when other objectives of the criminal justice system are best
served by its introduction. Thus, we have held that statements
obtained in violation of the rule can be used for impeachment, so
that the truth finding function of the trial is not distorted by
the defense, see Harris v. New
York, 401
U. S. 222 (1971); that there is an exception to protect
countervailing concerns of public safety, see New York v. Quarles, 467 U. S. 649 (1984);
and that physical evidence obtained in reliance on statements taken
in violation of the rule is admissible, see United States v. Patane , post, p. ____. These cases, in my
view, are correct. They recognize that admission of evidence is
proper when it would further important objectives without
compromising Miranda ’s central concerns. Under these
precedents, the scope of the Miranda suppression remedy
depends on a consideration of those legitimate interests and on
whether admission of the evidence under the circumstances would
frustrate Miranda ’s central concerns and objectives. 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”
given the facts of that case. Elstad , supra , at
308 (citing Michigan v. Tucker, 417 U. S. 433 , 445
(1974)).

															   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 offers
and does not serve any legitimate objectives that might otherwise
justify its use.

															   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 13. 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. Ante , at 13–15. In my view, this test cuts too broadly. Miranda’ s clarity is one of its strengths, and a
multifactor test that applies to every two-stage interrogation may
serve to undermine that clarity. Cf. Berkemer v. McCarty , 468 U. S. 420 , 430
(1984). I would apply a narrower test applicable only in the
infrequent case, such as we have here, in which the two-step
interrogation technique was used in a calculated way to undermine
the Miranda warning.

															   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. O'CONNOR, J., DISSENTING MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE
SEIBERT

															on writ of certiorari to the supreme court of
missouri

															[June 28, 2004]

															   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 12. I believe that we are bound by Elstad to reach a different result, and I would vacate the
judgment of the Supreme Court of Missouri.

															I

															   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 10, n. 4. Second,
the plurality correctly declines to focus its analysis on the
subjective intent of the interrogating officer.

															A

															   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 ___
(slip op., at 1) (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 and other objectives of the criminal
justice system must be accommodated”). 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. ___. The plurality
correctly refuses to apply a similar analysis to testimonial
fruits.

															   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 1–2
(concurring opinion).

															B

															   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
(1986) (“Events occurring outside of the presence of the suspect
and entirely unknown to him surely can have no bearing on the
capacity to comprehend and knowingly relinquish a constitutional
right”). In Moran , an attorney hired by the suspect’s
sister had been trying to contact the suspect and was told by the
police, falsely, that they would not begin an interrogation that
night. Id., at 416–418. The suspect was not aware that an
attorney had been hired for him. Id., at 417. We rejected
an analysis under which a different result would obtain for “the
same defendant, armed with the same information and confronted with
precisely the same police conduct” if something not known to the
defendant—such as the fact that an attorney was attempting to
contact him—had been different. Id., at 422. The same
principle applies here. A suspect who experienced the exact same
interrogation as Seibert, save for a difference in the undivulged,
subjective intent of the interrogating officer when he failed to
give Miranda warnings, would not experience the
interrogation any differently. “[W]hether intentional or
inadvertent, the state of mind of the police is irrelevant to the
question of the intelligence and voluntariness of respondent’s
election to abandon his rights. Although highly inappropriate, even
deliberate deception of an attorney could not possibly affect a
suspect’s decision to waive his Miranda rights unless he
were at least aware of the incident.” 475 U. S., at 423. Cf. Stansbury v. California, 511 U. S. 318 , 324–325
(1994) (per curiam) (police officer’s subjective intent is
irrelevant to whether suspect is in custody for Miranda purposes; “one cannot expect the person under interrogation to
probe the officer’s innermost thoughts”).

															   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 constitutional analysis on a
police officer’s subjective intent, an unattractive proposition
that we all but uniformly avoid. In general, “we believe that
‘sending state and federal courts on an expedition into the minds
of police officers would produce a grave and fruitless
misallocation of judicial resources.’ ” United States v. Leon, 468 U. S. 897 , 922,
n. 23 (1984) (quoting Massachusetts v. Painten, 389 U. S. 560 , 565
(1968) (per curiam) (White, J., dissenting)). This case
presents the uncommonly straightforward circumstance of an officer
openly admitting that the violation was intentional. But the
inquiry will be complicated in other situations probably more
likely to occur. For example, different officers involved in an
interrogation might claim different states of mind regarding the
failure to give Miranda warnings. Even in the simple case
of a single officer who claims that a failure to give Miranda warnings was inadvertent, the likelihood of error
will be high. See W. LaFave, Search and Seizure §1.4(e),
p. 124 (3d ed. 1996) (“[T]here is no reason to believe that
courts can with any degree of success determine in which instances
the police had an ulterior motive”).

															   These evidentiary difficulties have led us to
reject an intent-based test in several criminal procedure contexts.
For example, in New York v. Quarles, 467
U. S. 649 (1984), 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”
or “calculated.” Ante , at 4–5 (opinion concurring in
judgment). This approach untethers the analysis from facts knowable
to, and therefore having any potential directly to affect, the
suspect. Far from promoting “clarity,” ibid. , the approach
will add a third step to the suppression inquiry. In virtually
every two-stage interrogation case, in addition to addressing the
standard Miranda and voluntariness questions, courts will
be forced to conduct the kind of difficult, state-of-mind inquiry
that we normally take pains to avoid.

															II

															   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.” 61 Ore. 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 interest in
not being compelled to testify against himself.” Id., at 312. The plurality might very well think that we
struck the balance between Fifth Amendment rights and law
enforcement interests incorrectly in Elstad; but that is
not normally a sufficient reason for ignoring the dictates of stare decisis .

															   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.” 470 U. S., 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 told a suspect that his
accomplice had already confessed was “relevant” to the
voluntariness inquiry); Moran , 475 U. S., at 423–424 (in
discussing police deception, stating that simply withholding
information is “relevant to the constitutional validity of a waiver
if it deprives a defendant of knowledge essential to his ability to
understand the nature of his rights and the consequences of
abandoning them”); Miranda , supra, at 476.

															* * *

															   Because I believe that the
plurality gives insufficient deference to Elstad and that
Justice Kennedy places improper weight on subjective intent, I
respectfully dissent.