U.S. Supreme Court Oregon v. Elstad, 470
U.S. 298 (1985) Oregon v. Elstad No. 83-773 Argued October 3,
1984 Decided March 4, 1985 470
U.S. 298 CERTIORARI TO THE COURT OF APPEALS
OF OREGON Syllabus When officers of the Polk County, Ore., Sheriff's Office picked
up respondent at his home as a suspect in a burglary, he made an
incriminating statement without having been given the warnings
required by Miranda v. Arizona, 384 U.
S. 436 . After he was taken to the station house, and
after he was advised of and waived his Miranda rights,
respondent executed a written confession. In respondent's
subsequent prosecution for burglary, the state trial court excluded
from evidence his first statement because he had not been given Miranda warnings, but admitted the written confession.
Respondent was convicted, but the Oregon Court of Appeals reversed,
holding that the confession should also have been excluded. The
court concluded that, because of the brief period separating
respondent's initial, unconstitutionally obtained statement and his
subsequent confession, the "cat was sufficiently out of the bag to
exert a coercive impact" on respondent's confession, rendering it
inadmissible. Held: The Self-Incrimination Clause of the Fifth
Amendment does not require 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 suspect. Pp. 470 U. S.
303 -318.

															(a) 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 that requires exclusion as "fruit of the poisonous tree"
of evidence discovered as a result of an unconstitutional search.
The Fifth Amendment prohibits use by the prosecution in its case in
chief only of compelled testimony, and failure to administer Miranda warnings creates a presumption of compulsion,
requiring that unwarned statements that are otherwise voluntary
within the meaning of the Fifth Amendment be excluded from
evidence. But the Miranda presumption does not require
that fruits of otherwise voluntary statements be discarded as
inherently tainted. 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. Pp. 470 U. S.
304 -309. Page 470 U. S. 299 (b) The failure of police to administer Miranda warnings does not mean that the statements received have actually
been coerced, but only that courts will presume the privilege
against compulsory self-incrimination has not been intelligently
exercised. Absent deliberate coercion or improper tactics in
obtaining an unwarned statement, a careful and thorough
administration of Miranda warnings cures the condition
that rendered the unwarned statement inadmissible. The warnings
convey the relevant information, and thereafter the suspect's
choice whether to exercise his privilege to remain silent should
ordinarily be viewed as an act of free will. Endowing the
psychological effects of voluntary unwarned admissions -- such as
the psychological impact of the suspect's conviction that he has
"let the cat out of the bag" -- 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. Pp. 470 U. S.
309 -314.

															(c) Respondent knowingly and voluntarily waived his right to
remain silent before he executed his written confession, and his
earlier statement was voluntary, within the meaning of the Fifth
Amendment. Neither the environment nor the manner of either
"interrogation" was coercive. To impose a requirement, suggested by
respondent, that he should also have been given an additional
warning at the station house that his prior statement could not be
used against him, is neither practicable nor constitutionally
necessary. Pp. 470 U. S.
314 -317.

															(d) The dictates of Miranda and the goals of the Fifth
Amendment proscription against use of compelled testimony are fully
satisfied in the circumstances of this case by barring use of the
unwarned statement in the case in chief. No further purpose is
served by imputing "taint" to subsequent statements obtained
pursuant to a voluntary and knowing waiver. Pp. 470 U. S.
317 -318.

															61 Ore. App. 673, 658 P.2d
552 , reversed and remanded.

															O'CONNOR, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, POWELL and REHNQUIST, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL,
J., joined, post, p. 470 U. S. 318 .
STEVENS, J., filed a dissenting opinion, post, p. 470 U. S.
364 . Page 470 U. S. 300 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. I In December, 1981, the home of Mr. and Mrs. Gilbert Gross, in
the town of Salem, Polk County, Ore., was burglarized. Missing were
art objects and furnishings valued at $150,000. A witness to the
burglary contacted the Polk County Sheriff's Office, implicating
respondent Michael Elstad, an 18-year-old neighbor and friend of
the Grosses' teenage son. Thereupon, Officers Burke and McAllister
went to the home of respondent Elstad, with a warrant for his
arrest. Elstad's mother answered the door. She led the officers to
her son's room, 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 Page 470 U. S. 301 son's arrest for the burglary of a neighbor's residence. Officer
Burke remained with Elstad in the living room. He later
testified:

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

															App.19-20. 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 Page 470 U. S. 302 me a small bag of grass." App. 42. Respondent concedes that the
officers made no threats or promises either at his residence or at
the Sheriff's office.

															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:

															"[H]is written statement was given freely, voluntarily and
knowingly by the defendant after he had waived his right to remain
silent and have counsel present, which waiver was evidenced by the
card which the defendant had signed. [It] was not tainted in any
way by the previous brief statement between the defendant and the
Sheriff's Deputies that had arrested him."

															App. 45. 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 Page 470 U. S. 303 of Appeals reversed respondent's conviction, identifying the
crucial constitutional inquiry as

															"whether there was 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."

															61 Ore.App. 673, 676, 658 P.2d
552 , 554 (1983). The Oregon court concluded:

															"Regardless of the absence of actual compulsion, the 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. In determining whether it has been
dissipated, lapse of time, and change of place from the original
surroundings are the most important considerations." Id. at 677, 658 P.2d at 554.

															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. II 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 Page 470 U. S. 304 confession can be truly voluntary once the "cat is out of the
bag." Taken out of context, each of these metaphors can be
misleading. They should not be used to obscure fundamental
differences between the role of the Fourth Amendment exclusionary
rule and the function of Miranda in guarding against the
prosecutorial use of compelled statements as prohibited by the
Fifth Amendment. The Oregon court assumed and respondent here
contends that a failure to administer Miranda warnings
necessarily breeds the same consequences as police infringement of
a constitutional right, so that evidence uncovered following an
unwarned statement must be suppressed as "fruit of the poisonous
tree." We believe this view misconstrues the nature of the
protections afforded by Miranda warnings, and therefore
misreads the consequences of police failure to supply them. 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 373 U. S. 515 ,
or under circumstances in which the suspect clearly had no
opportunity to exercise "a free and unconstrained will," id. at 373 U.S.
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 , 384 U. S. 764 (1966) (defendant may be compelled to supply blood samples). Nor is
it concerned Page 470 U. S. 305 with moral and psychological pressures to confess emanating from
sources other than official coercion. See, e.g., California v.
Beheler, 463 U. S. 1121 ,
1125, and n. 3 (1983) (per curiam); Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 303 ,
and n. 10 (1980); Oregon v. Mathiason, 429 U.
S. 492 , 429 U. S.
495 -496 (1977). Voluntary statements "remain a proper
element in law enforcement." Miranda v. Arizona, 384 U.S.
at 384 U. S.
478 .

															"Indeed, far from being prohibited by the Constitution,
admissions of guilt by wrongdoers, if not coerced, are inherently
desirable. . . . Absent some officially coerced self-accusation,
the Fifth Amendment privilege is not violated by even the most
damning admissions." United States v. Washington, 431 U.
S. 181 , 431 U. S. 187 (1977). As the Court noted last Term in New York v.
Quarles, 467 U. S. 649 , 467 U. S. 654 (1984) (footnote omitted):

															"The Miranda Court, however, presumed that
interrogation in certain custodial circumstances is inherently
coercive, and . . . that statements made under those circumstances
are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights.
The prophylactic Miranda warnings therefore are 'not
themselves rights protected by the Constitution, but [are] instead
measures to insure that the right against compulsory
self-incrimination [is] protected.' Michigan v. Tucker, 417 U. S.
433 , 417 U. S. 444 (1974); see Edwards v. Arizona, 451 U. S. 477 , 451 U. S.
492 (1981) (POWELL, J., concurring). Requiring Miranda warnings before custodial interrogation provides
'practical reinforcement' for the Fifth Amendment right."

															Respondent's contention that his confession was tainted by the
earlier failure of the police to provide Miranda warnings,
and must be excluded as "fruit of the poisonous tree," assumes the
existence of a constitutional violation. This figure of speech is
drawn from Wong Sun v. United States, 371 U.
S. 471 (1963), in which the Court held that evidence and
witnesses Page 470 U. S. 306 discovered as a result of a search in violation of the Fourth
Amendment must be excluded from evidence. The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment
violation is a confession. It is settled law that

															"a confession obtained through custodial interrogation after an
illegal arrest should be excluded unless intervening events break
the causal connection between the illegal arrest and the confession
so that the confession is 'sufficiently an act of free will to
purge the primary taint.'" Taylor v. Alabama, 457 U. S. 687 , 457 U. S. 690 (1982) (quoting Brown v. Illinois, 422 U.
S. 590 , 422 U. S. 602 (1975)).

															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 , 442 U. S.
216 -217 (1979); Brown v. Illinois, 422 U.S. at 422 U. S.
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 422 U. S. 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 457 U. S. 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. [ Footnote
1 ] The Fifth Amendment prohibits Page 470 U. S. 307 use by the prosecution in its case in chief only of compelled
testimony. Failure to administer Miranda warnings creates
a presumption of compulsion. Consequently, unwarned statements that
are otherwise voluntary within the meaning of the Fifth Amendment
must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive
medicine provides a remedy even to the defendant who has suffered
no identifiable constitutional harm. See New York v. Quarles,
supra, at 467 U. S. 654 ; Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 444 (1974).

															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 401 U. S. 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 Page 470 U. S. 308 [remains] the 'old' due process voluntariness test." Schulhofer,
Confessions and the Court, 79 Mich.L.Rev. 865, 877 (1981).

															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 417 U. S. 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 417 U. S. 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 --
trustworthiness 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 Page 470 U. S. 309 mechanically equated with the proffer of inanimate evidentiary
objects illegally seized. . . . [T]he living witness is an
individual human personality whose attributes of will, perception,
memory and volition interact to determine what testimony
he will give.'" United States v. Ceccolini, 435 U.
S. 268 , 435 U. S. 277 (1978) (emphasis added) (quoting from Smith v. United
States, 117 U.S.App.D.C. 1, 3-4, 324 F.2d 879, 881-882 (1963)
(Burger, J.) (footnotes omitted), cert. denied, 377 U.S.
954 (1964)).

															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 384 U. S. 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 417 U. S. 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. B 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, Page 470 U. S. 310 and not the unwarned questioning, impaired respondent's ability
to give a valid waiver, and that only lapse of time and change of
place could dissipate what it termed the "coercive impact" of the
inadmissible statement. When a prior statement is actually coerced,
the time that passes between confessions, the change in place of
interrogations, and the change in identity of the interrogators all
bear on whether that coercion has carried over into the second
confession. See Westover v. United States, decided
together with Miranda v. Arizona, 384 U.S. at 384 U. S. 494 ; Clewis v. Texas, 386 U. S. 707 (1967). The failure of police to administer Miranda warnings does not mean that the statements received have actually
been coerced, but only that courts will presume the privilege
against compulsory self-incrimination has not been intelligently
exercised. See New York v. Quarles, 467 U.S. at 476 U. S. 654 ,
and n. 5; Miranda v. Arizona, supra at 470 U. S. 457 .
Of the courts that have considered whether a properly warned
confession must be suppressed because it was preceded by an
unwarned but clearly voluntary admission, the majority have
explicitly or implicitly recognized that Westover's requirement of
a break in the stream of events is inapposite. [ Footnote 2 ] In these circumstances, a careful and
thorough Page 470 U. S. 311 administration of Miranda warnings serves to cure the
condition that rendered the unwarned statement inadmissible. The
warning conveys the relevant information, and thereafter, the
suspect's choice whether to exercise his privilege to remain silent
should ordinarily be viewed as an "act of free will." Wong Sun
v. United States, 371 U.S. at 371 U. S.
486 .

															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: "[A]fter an accused has once let the cat out of the bag by
confessing, no matter what the inducement, he is never thereafter
free of the psychological and practical disadvantages of having
confessed. He can never get the cat back in the bag. The secret is
out for good. In such a sense, a later confession may always be
looked upon as fruit of the first. But this Court has never gone so
far as to hold that making a confession under circumstances which
preclude its use, perpetually disables the confessor from making a
usable one after those conditions have been removed."

															331 U.S. at 331 U. S.
540 -541. 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 Page 470 U. S. 312 could, with time, be dissipated. See also Westover v. United
States, supra, at 384 U. S.
496 .

															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 , 423 U. S.
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.
[ Footnote 3 ] Certainly, in Page 470 U. S. 313 respondent's case, the causal connection between any
psychological disadvantage created by his admission and his
ultimate decision to cooperate is speculative and attenuated at Page 470 U. S. 314 best. It is difficult to tell with certainty what motivates a
suspect to speak. A suspect's confession may be traced to factors
as disparate as "a prearrest event such as a visit with a
minister," Dunaway v. New York, 442 U.S. at 442 U. S. 220 (STEVENS, J., concurring), or an intervening event such as the
exchange of words respondent had with his father. We must conclude
that, absent deliberately coercive or improper tactics in obtaining
the initial statement, the mere fact that a suspect has made an
unwarned admission does not warrant a presumption of compulsion. A
subsequent administration of Miranda warnings to a suspect
who has given a voluntary but unwarned statement ordinarily should
suffice to remove the conditions that precluded admission of the
earlier statement. In such circumstances, the finder of fact may
reasonably conclude that the suspect made a rational and
intelligent choice whether to waive or invoke his rights. III 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 Page 470 U. S. 315 Elstad's responses. [ Footnote
4 ] There is no question that respondent knowingly and
voluntarily waived his right to remain silent before he described
his participation in the burglary. It is also beyond dispute that
respondent's earlier remark was voluntary, within the meaning of
the Fifth Amendment. Neither the environment nor the manner of
either "interrogation" was coercive. The initial conversation took
place at midday, in the living room area of respondent's own home,
with his mother in the kitchen area, a few steps away. Although in
retrospect the officers testified that respondent was then in
custody, at the time he made his statement he had not been informed
that he was under arrest. The arresting officers' testimony
indicates that the brief stop in the living room before proceeding
to the station house was not to interrogate the suspect, but to
notify his mother of the reason for his arrest. App. 9-10.

															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 Page 470 U. S. 316 procedure before McAllister had spoken with respondent's mother.
Whatever the reason for Burke's oversight, the incident had none of
the earmarks of coercion. See Rawlings v. Kentucky, 448 U. S. 98 , 448 U. S.
109 -110 (1980). Nor did the officers exploit the
unwarned admission to pressure respondent into waiving his right to
remain silent.

															Respondent, however, has argued that he was unable to give a
fully informed waiver of his rights because he was unaware that his
prior statement could not be used against him. Respondent suggests
that Officer McAllister, to cure this deficiency, should have added
an additional warning to those given him at the Sheriff's office.
Such a requirement is neither practicable nor constitutionally
necessary. In many cases, a breach of Miranda procedures
may not be identified as such until long after full Miranda warnings are administered and a valid confession
obtained. 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 463 U. S.
1125 -1126, n. 3; McMann v. Richardson, 397 U. S. 759 , 397 U. S. 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 Page 470 U. S. 317 on retrial.

															"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 392 U. S.
224 -225. But the Court has refused to find that a
defendant who confesses, after being falsely told that his
codefendant has turned State's evidence, does so involuntarily. Frazier v. Cupp, 394 U. S. 731 , 394 U. S. 739 (1969). The Court has also rejected the argument that a defendant's
ignorance that a prior coerced confession could not be admitted in
evidence compromised the voluntariness of his guilty plea. McMann v. Richardson, supra, at 397 U. S. 769 .
Likewise, in California v. Beheler, supra, the Court
declined to accept defendant's contention that, because he was
unaware of the potential adverse consequences of statements he made
to the police, his participation in the interview was involuntary.
Thus we have not held that the sine qua non for a knowing
and voluntary waiver of the right to remain silent is a full and
complete appreciation of all of the consequences flowing from the
nature and the quality of the evidence in the case. IV 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 467 U. S.
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 Page 470 U. S. 318 under coercive circumstances to situations involving wholly
voluntary admissions, requiring a passage of time or break in
events before a second, fully warned statement can be deemed
voluntary. Far from establishing a rigid rule, we direct courts to
avoid one; there is no warrant for presuming coercive effect where
the suspect's initial inculpatory statement, though technically in
violation of Miranda, was voluntary. [ Footnote 5 ] The relevant inquiry is whether, in
fact, the second statement was also voluntarily made. As in any
such inquiry, the finder of fact must examine the surrounding
circumstances and the entire course of police conduct with respect
to the suspect in evaluating the voluntariness of his statements.
The fact that a suspect chooses to speak after being informed of
his rights is, of course, highly probative. We find that the
dictates of Miranda and the goals of the Fifth Amendment
proscription against use of compelled testimony are fully satisfied
in the circumstances of this case by barring use of the unwarned
statement in the case in chief. No further purpose is served by
imputing "taint" to subsequent statements obtained pursuant to a
voluntary and knowing waiver. We hold today that a suspect who has
once responded to unwarned yet uncoercive questioning is not
thereby disabled from waiving his rights and confessing after he
has been given the requisite Miranda warnings.

															The judgment of the Court of Appeals of Oregon is reversed, and
the case is remanded for further proceedings not inconsistent with
this opinion. It is so ordered. [ Footnote 1 ]

															JUSTICE STEVENS expresses puzzlement at our statement that a
simple failure to administer Miranda warnings is not, in
itself, a violation of the Fifth Amendment. Yet the Court so held
in New York v. Quarles, 467 U. S. 649 , 467 U. S. 654 (1983), and Michigan v. Tucker, 417 U.
S. 433 , 417 U. S. 444 (1974). The Miranda Court itself recognized this point
when it disclaimed any intent to create a "constitutional
straitjacket," and invited Congress and the States to suggest
"potential alternatives for protecting the privilege." 384 U.S. at 384 U. S. 467 .
A Miranda violation does not constitute coercion,
but rather affords a bright-line, legal presumption of coercion,
requiring suppression of all unwarned statements. It has never been
remotely suggested that any statement taken from Mr. Elstad without
benefit of Miranda warnings would be admissible.

															[ Footnote 2 ] See, e.g., United States v. Bowler, 561 F.2d 1323, 1326
(CA9 1977); Tanner v. Vincent, 541 F.2d 932 (CA2 1976); United States v. Toral, 536 F.2d 893, 896-897 (CA9 1976); United States v. Knight, 395 F.2d 971, 975 (CA2 1968); State v. Montes, 136 Ariz. 491, 496-497, 667 P.2d 191 ,
196-197 (1983); State v. Derrico, 181 Conn.151, 166-167,
434 A.2d 356, 365-366, cert. denied, 449 U.S. 1064 (1980); State v. Holt, 354 So. 2d 888, 890 (Fla.App.), cert.
denied, 361 So. 2d 832 (Fla.1978); Fried v. State, 42
Md.App. 643, 644-648, 402 A.2d 101 , 102-104 (1979); Commonwealth v. White, 353 Mass. 409, 232
N.E.2d 335 (1967); State v. Sickels, 275 N.W.2d
809 , 813-814 (Minn.1979); State v. Dakota, 300 Minn.
12, 217 N.W.2d
748 (1974); State v. Raymond, 305 Minn. 160, 170, 232 N.W.2d
879 , 886 (1975) (noting common thread in line of cases holding
prejudicial coercion not present "just because [defendant] had made
an earlier confession which 'let the cat out of the bag'"); Commonwealth v. Chacko, 500 Pa. 571, 580-582, 459 A.2d
311 , 316 (1983) ("After being given his Miranda warnings it is clear [defendant] maintained his intention to
provide his questioners with his version of the incident"). But
see In re Pablo A. C., 129 Cal. App.
3d 984 , 181 Cal. Rptr.
468 (1982); State v. Hibdon, 57 Ore.App. 509, 645 P.2d
580 (1982); State v. Lavaris, 99 Wash. 2d
851 , 857-860, 664 P.2d
1234 , 1237-1239 (1983).

															[ Footnote 3 ]

															Most of the 50 cases cited by JUSTICE BRENNAN in his discussion
of consecutive confessions concern an initial unwarned statement
obtained through overtly or inherently coercive methods which raise
serious Fifth Amendment and due process concerns. Without
describing each case cited, the following are representative of the
situations JUSTICE BRENNAN views as analogous to this case: e.g., Darwin v. Connecticut, 391 U.
S. 346 (1968) (suspect interrogated for 48 hours
incommunicado while officers denied access to counsel); Beecher
v. Alabama, 389 U. S. 35 , 389 U. S. 36 (1967) (officer fired rifle next to suspect's ear and said "If you
don't tell the truth, I am going to kill you"); Clewis v.
Texas, 386 U. S. 707 (1967) (suspect was arrested without probable cause, interrogated
for nine days with little food or sleep, and gave three unwarned
"confessions" each of which he immediately retracted); Reck v.
Pate, 367 U. S. 433 , 367 U. S.
439 -440, n. 3 (1961) (mentally retarded youth
interrogated incommunicado for a week "during which time he was
frequently ill, fainted several times, vomited blood on the floor
of the police station, and was twice taken to the hospital on a
stretcher"). Typical of the state cases cited in the dissent's
discussion are: e.g., Cagle v. State, 45 Ala. App. 3, 4,
221 So. 2d 119, 120 (1969) (police interrogated wounded suspect at
police station for one hour before obtaining statement, took him to
hospital to have his severe wounds treated, only then giving the Miranda warnings; suspect prefaced second statement with
"I have already give the Chief a statement and I might as well give
one to you, too"), cert. denied, 284 Ala. 727, 221 So. 2d
121 (1969); People v. Saiz, 620 P.2d 15 (Colo.1980) (two hours' unwarned custodial interrogation of
16-year-old in violation of state law requiring parent's presence,
culminating in visit to scene of crime); People v. Bodner, 75 App.Div.2d 440, 430 N.Y.S.2d 433 (1980) (confrontation at police
station and at scene of crime between police and retarded youth
with mental age of eight or nine); State v. Badger, 141
Vt. 430, 441, 450 A.2d 336 ,
343 (1982) (unwarned "close and intense" station house questioning
of 15-year-old, including threats and promises, resulted in
confession at 1:20 a. m.; court held "[w]arnings . . . were
insufficient to cure such blatant abuse or compensate for the
coercion in this case").

															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).

															[ Footnote 4 ]

															comprehensive, incorporating the warning that any statements
could be used in a court of law; the rights to remain silent,
consult an attorney at state expense, and interrupt the
conversation at any time; and the reminder that any statements must
be voluntary. The reverse side of the card carried three questions
in boldface and recorded Elstad's responses:

															"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.

															[ Footnote 5 ]

															JUSTICE BRENNAN, with an apocalyptic tone, heralds this opinion
as dealing a "crippling blow to Miranda. " Post at 470 U. S. 319 .
JUSTICE BRENNAN not only distorts the reasoning and holding of our
decision, but, worse, invites trial courts and prosecutors to do
the same.

															JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.

															The Self-Incrimination Clause of the Fifth Amendment guarantees
every individual that, if taken into official custody, Page 470 U. S. 319 he shall be informed of important constitutional rights and be
given the opportunity knowingly and voluntarily to waive those
rights before being interrogated about suspected wrongdoing. Miranda v. Arizona, 384 U. S. 436 (1966). [ Footnote 2/1 ] This
guarantee embodies our society's conviction that

															"no system of criminal justice can, or should, survive if it
comes to depend for its continued effectiveness on the citizens'
abdication through unawareness of their constitutional rights." Escobedo v. Illinois, 378 U. S. 478 , 378 U. S. 490 (1964).

															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. [ Footnote 2/2 ]

															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 Page 470 U. S.
320 may be admitted. Ante at 470 U. S. 307 , 470 U. S. 313 .
The Court instead adopts a new rule that, so long as the accused is
given the usual Miranda warnings before further
interrogation, the taint of a previous confession obtained in
violation of Miranda "ordinarily" must be viewed as automatically dissipated. Ante at 470 U. S.
311 . 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 470 U. S. 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 , 308 U. S. 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 , 251 U. S. 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. Page 470 U. S. 321 Today's decision, in short, threatens disastrous consequences
far beyond the outcome in this case. As the Court has not seen fit
to provide a full explanation for this result, I believe it
essential to consider in detail the premises, reasoning, and
implications of the Court's opinion. I 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 , 331 U. S.
540 -541 (1947), the Oregon Court of Appeals held that
the first confession presumptively taints subsequent confessions in
such circumstances. 61 Ore.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 470 U. S. 311 , 470 U. S. 314 .
The Court suggests that it is merely following settled lower court
practice in adopting this Page 470 U. S. 322 rule, and that the analysis followed by the Oregon Court of
Appeals was aberrant. This is simply not so. Most federal courts
have rejected the Court's approach, and instead held that (1) there
is a rebuttable presumption that a confession obtained in violation
of Miranda taints subsequent confessions, and (2) the
taint cannot be dissipated solely by giving Miranda warnings. [ Footnote 2/3 ] Moreover,
those few federal courts that have suggested approaches similar to
the Court's have subsequently qualified their positions. [ Footnote 2/4 ] Even more significant is the
case among state courts. Although a handful have adopted the
Court's approach, [ Footnote 2/5 ]
the overwhelming majority Page 470 U. S. 323 of state courts that have considered the issue have concluded
that subsequent confessions are presumptively tainted by a first
confession taken in violation of Miranda and that Miranda warnings alone cannot dissipate the taint.
[ Footnote 2/6 ] Page 470 U. S. 324 The Court today sweeps aside this common-sense approach as
"speculative" reasoning, adopting instead a rule that "the
psychological impact of voluntary disclosure of a guilty secret"
neither "qualifies as state compulsion" nor "compromises the
voluntariness" of subsequent confessions. Ante at 470 U. S. 312 , 470 U. S. 313 (emphasis added). So long as a suspect receives the usual Miranda warnings before further interrogation, the Court
reasons, the fact that he "is free to exercise his own volition in
deciding whether or not to make" further confessions "ordinarily"
is a sufficient "cure" and serves to break any causal connection
between the illegal confession and subsequent statements. Ante at 470 U. S. 308 , 470 U. S.
311 .

															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. A (1) This Court has had long experience with the problem of
confessions obtained after an earlier confession has been Page 470 U. S. 325 illegally secured. Subsequent confessions in these circumstances
are not per se inadmissible, but the prosecution must
demonstrate facts "sufficient to insulate the [subsequent]
statement from the effect of all that went before." Clewis v.
Texas, 386 U. S. 707 , 386 U. S. 710 (1967). If the accused's subsequent confession was merely the
culmination of "one continuous process," or if the first confession
was merely "filled in and perfected by additional statements given
in rapid succession," the subsequent confession is inadmissible,
even though it was not obtained through the same illegal means as
the first. Leyra v. Denno, 347 U.
S. 556 , 347 U. S. 561 (1954); see also Westover v. United States, decided
together with Miranda v. Arizona, 384 U.
S. 436 , 384 U. S.
494 -496 (1966). The question in each case is whether the
accused's will was "overborne at the time he confessed," and the
prosecution must demonstrate that the second confession "was an act
independent of the [earlier] confession." Reck v. Pate, 367 U. S. 433 , 367 U. S. 440 , 367 U. S. 444 (1961).

															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 331 U. S.
540 :

															"[A]fter an accused has once let the cat out of the bag by
confessing, no matter what the inducement, he is never thereafter
free of the psychological and practical disadvantages of having
confessed. He can never get the cat back in the bag. The secret is
out for good. In such a sense, a later confession always may be
looked upon as a fruit of the first."

															The Court today decries the "irremediable consequences" of this
reasoning, ante at 470 U. S. 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 331 U. S.
541 . Page 470 U. S. 326 Rather, we have held that subsequent confessions in such
circumstances may be admitted if the prosecution demonstrates that,
"[c]onsidering the totality of the circumstances,'" there was a
"`break in the stream of events . . . sufficient to insulate'" the
subsequent confession from the damning impact of the first. Darwin v. Connecticut, 391 U. S. 346 , 391 U. S. 349 (1968) (citations omitted). Although we have thus rejected a per se rule forbidding the introduction of subsequent
statements in these circumstances, we have emphasized that the
psychological impact of admissions and confessions of criminal
guilt nevertheless can have a decisive impact in undermining the
voluntariness of a suspect's responses to continued police
interrogation, and must be accounted for in determining their
admissibility. As Justice Harlan explained in his separate Darwin opinion: "A principal reason why a suspect might make a second or third
confession is simply that, having already confessed once or twice,
he might think he has little to lose by repetition. If a first
confession is not shown to be voluntary, I do not think a later
confession that is merely a direct product of the earlier one
should be held to be voluntary. It would be neither conducive to
good police work nor fair to a suspect to allow the erroneous
impression that he has nothing to lose to play the major role in a
defendant's decision to speak a second or third time."

															"In consequence, when the prosecution seeks to use a confession
uttered after an earlier one not found to be voluntary, it has . .
. the burden of proving not only that the later confession was not
itself the product of improper threats or promises or coercive
conditions, but also that it was not directly produced by the
existence of the earlier confession." Id. at 391 U. S.
350 -351 (concurring in part and dissenting in part). See also Brown v. Illinois, 422 U.
S. 590 , 422 U. S. 605 ,
n. 12 (1975) ("The fact that Brown had made one statement, believed
by Page 470 U. S. 327 him to be admissible, . . . bolstered the pressures for him to
give the second, or at least vitiated any incentive on his part to
avoid self-incrimination"); Beecher v. Alabama, 389 U. S. 35 , 389 U. S. 36 , n.
2 (1967) (per curiam) (existence of earlier illegal confession "is
of course vitally relevant to the voluntariness of petitioner's
later statements"). [ Footnote
2/7 ] Page 470 U. S. 328 (2) 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 470 U. S. 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. "For some psychological reason which does not have to concern us
at this point, 'the dam finally breaks as a result of the first
leak' with regards to the tough subject. . . . Any structure is
only as strong as its weakest component, and total collapse can be
anticipated when the weakest part first begins to sag." Id. at 291.

															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. Page 470 U. S. 329 "Once the initial admission has been made, further inducement in
the form of skillfully applied interrogation techniques will
motivate the suspect into making the confession." Id. at 26; see also id. at 33 (initial
admissions are "capitalized upon by the interrogator in securing
the eventual confession"). Some of these "skillfully applied"
techniques involve direct confrontation of the suspect with the
earlier admission, but many of the techniques are more discreet and
create leverage without the need of expressly discussing the
earlier admission. These techniques are all aimed at reinforcing in
the suspect's mind that, as one manual describes it,

															"'you're wasting your own time, and you're wasting my time,
you're guilty and you know it, I know it, what's more, you know
that I know it.'" Id. at 234. [ Footnote
2/8 ]

															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 470 U. S. 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 Page 470 U. S. 330 escort a suspect into a room, sit him down and, without
explaining his Fifth Amendment rights or obtaining a knowing and
voluntary waiver of those rights, interrogate him about his
suspected criminal activity. If the police obtain a confession, it
is then typed up, the police hand the suspect a pen for his
signature, and -- just before he signs -- the police advise him of
his Miranda rights and ask him to proceed. Alternatively,
the police may call a stenographer in after they have obtained the
confession, advise the suspect for the first time of his Miranda rights, and ask him to repeat what he has just
told them. In such circumstances, the process of giving Miranda warnings and obtaining the final confession is
" merely a formalizing, a setting down almost as a scrivener
does, [of] what ha[s] already taken [place].'" People v.
Raddatz, 91 Ill.App.2d 425, 430, 235 N.E.2d 353, 356 (1968)
(quoting trial court). In such situations, where "it was all over
except for reading aloud and explaining the written waiver of the Miranda safeguards," courts have time and again concluded
that "[t]he giving of the Miranda warnings before reducing
the product of the day's work to written form could not undo what
had been done or make legal what was illegal." People v. Bodner, 75 App.Div.2d 440, 448, 430 N.Y.S.2d
433, 438 (1980). [ Footnote 2/9 ]

															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. [ Footnote
2/10 ] Or he is led by one of Page 470 U. S. 331 the interrogators into another room, introduced to another
official, and asked to repeat his story. The new officer then gives
the Miranda warnings and asks the suspect to proceed.
[ Footnote 2/11 ] Alternatively,
the suspect might be questioned by arresting officers "in the
field" and without Miranda warnings, as was young Elstad
in the instant case. After making incriminating admissions or a
confession, the suspect is then brought into the station house and
either questioned by the same officers again or asked to repeat his
earlier statements to another officer. [ Footnote 2/12 ]

															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 Page 470 U. S. 332 put to him, since the [authorities are] already aware of the
earlier answers," United States v. Pierce, 397 F.2d 128,
131 (CA4 1968); he will probably tell himself that "it's O.K., I
have already told them," State v. Lekas, supra, at 582,
442 P.2d at 15. See also Cagle v. State, 45 Ala. App. at
4, 221 So. 2d at 120 ("I have already give[n] the Chief . . . a
statement, and I might as well give one to you, too"). In such
circumstances, courts have found, a suspect almost invariably asks
himself,

															"What use is a lawyer? What good is a lawyer now? What benefit
can a lawyer tell me? [ sic ] I have already told the police
everything." People v. Raddatz, 91 Ill.App.2d at 430, 235 N.E.2d at
356. [ Footnote 2/13 ]

															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 470 U. S. 311 , 470 U. S.
314 . (3) The Court's new view about the "psychological impact" of prior
illegalities also is at odds with our Fourth Amendment Page 470 U. S. 333 precedents. For example, it is well established that a
confession secured as a proximate result of an illegal arrest must
be suppressed. See, e.g., Taylor v. Alabama, 457 U.
S. 687 (1982); Brown v. Illinois, 422 U.
S. 590 (1975); Wong Sun v. United States, 371 U. S. 471 (1963). We have emphasized in this context that

															"verbal evidence which derives so immediately from an unlawful
entry and an unauthorized arrest . . . is no less the 'fruit' of
official illegality than the more common tangible fruits of the
unwarranted intrusion." Wong Sun v. United States, supra, at 371 U. S.
485 .

															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 470 U. S. 306 .
I address this reasoning in 470 U. S. 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 371 U. S. 486 . See also Brown v. Illinois, supra, at 422 U. S.
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 470 U. S. 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 , 375 U. S. 90 -91
(1963) (remanding for determination whether admission was so
induced); see generally 3 W. LaFave, Search and Seizure §
11.4, pp. 638-642 Page 470 U. S. 334 (1978) (collecting cases). As commentators have noted, courts in
finding such confessions to be tainted by the Fourth Amendment
violation have emphasized that " the realization that the "cat
is out of the bag" plays a significant role in encouraging the
suspect to speak.'" Id. § 11.4, p. 639 (footnote omitted).
By discarding the accepted "cat out of the bag" presumption in the
successive confession context, however, the Court now appears to
have opened the door to applying this same simplistic reasoning to
Fourth Amendment violations. [ Footnote 2/14 ] Page 470 U. S. 335 B 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. 470
U.S. 298 fn2/3|>3, 470
U.S. 298 fn2/6|>6, supra. Although the Court warns
against the "irremediable consequences" of this presumption, ante at 470 U. S. 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 251 U. S. 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 371 U. S. 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.

															"The question whether a confession is the product of a free will
under Wong Sun must be answered on the facts of each case.
No single fact is dispositive. The workings Page 470 U. S. 336 of the human mind are too complex, and the possibilities of
misconduct too diverse, to permit protection of [constitutional
rights] to turn on . . . a talismanic test." Brown v. Illinois, 422 U.S. at 422 U. S. 603 .
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 422 U. S.
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 470 U. S. 308 , 470 U. S. 309 , 470 U. S. 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 , 435 U. S.
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 371 U. S. 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 Page 470 U. S. 337 " Miranda warnings, alone and per se, cannot always make [a confession] sufficiently a product of free
will to break . . . the causal connection between [an illegal
arrest] and the confession."

															422 U.S. at 422 U. S. 603 (emphasis in original). [ Footnote
2/15 ] See also Taylor v. Alabama, 457 U.S. at 457 U. S.
690 -691. The reason we rejected this rule is
manifest:

															"The Miranda warnings in no way inform a person of his
Fourth Amendment rights, including his right to be released from
unlawful custody following an arrest made without a warrant or
without probable cause." Brown v. Illinois, supra, at 422 U. S. 601 ,
n. 6.

															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 470 U. S. 311 ,
314. [ Footnote 2/16 ] Page 470 U. S. 338 The Court's new approach is therefore completely at odds with
established dissipation analysis. A comparison of the Court's
analysis with the factors most frequently relied on by lower courts
in considering the admissibility of subsequent confessions
demonstrates the practical and legal flaws of the new rule. 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, [ Footnote
2/17 ] and this Court has not uncovered anything to suggest that
this approach has not succeeded in the real world. The Court,
however, believes that law enforcement authorities could never
possibly understand "the murky and difficult questio[n]" of
when Page 470 U. S. 339 Miranda warnings must be given, and therefore that they
are "ill-equipped" to make the decision whether supplementary
warnings might be required. Ante at 470 U. S.
316 .

															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. [ Footnote 2/18 ] Although borderline cases
will of course occasionally arise, thus militating against a per se rule requiring supplementary warnings, the
experience of the lower courts demonstrates that the vast majority
of confrontations implicating this question involve obvious Miranda violations. The occasional "murky and difficult"
case should not preclude consideration of supplementary warnings in
situations where the authorities could not possibly have acted in
an objectively reasonable manner in their earlier interrogation of
the accused. Second, even where the authorities are not certain
that an earlier confession has been illegally obtained, courts and
commentators have recognized that a supplementary warning merely
advising the accused that his earlier confession may be
inadmissible can dispel his belief that he has nothing to lose by
repetition. [ Footnote 2/19 ] 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. [ Footnote 2/20 ] As in the
instant case, however, a Page 470 U. S. 340 second confession frequently follows immediately on the heels of
the first and is obtained by the same officials in the same or
similar coercive surroundings. In such situations, it is wholly
unreasonable to assume that the mere rendition of Miranda warnings will safeguard the accused's freedom of action.

															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 470 U. S. 310 .
Yet most lower courts that have considered the question have
recognized that our decision in Westover v. United States, 384 U.S. at 384 U. S. 494 ,
compels the contrary conclusion. [ Footnote 2/21 ] There, the accused was questioned by
local authorities for several hours and then turned over to federal
officials, who only then advised him of his constitutional rights
and obtained a confession. We concluded that Westover's waiver was
invalid because, from Westover's perspective, the separate
questioning amounted to but one continuous period of interrogation,
"the warnings came at the end of the interrogation process," and
the giving of warnings could not dissipate the effect of Page 470 U. S. 341 the earlier, illegal questioning. Id. at 384 U. S. 496 .
[ Footnote 2/22 ] Thus, it is clear
that Miranda warnings given at the end of the
interrogation process cannot dispel the illegality of what has gone
before. If this is so in a situation like Westover, where
the accused had not yet given a confession, how can the Court
possibly conclude otherwise where the accused already has
confessed, and therefore feels that he has nothing to lose by
"confess[ing] some more?" State v. Lekas, 201 Kan. at 588,
442 P.2d at 19. 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. [ Footnote 2/23 ] On the other
hand, where, as here, an accused has continuously been in custody
and there is no legitimate suggestion of an intervening event
sufficient to break the impact of the first confession, subsequent
confessions are inadmissible. [ Footnote 2/24 ] The Court reasons, however, that,
because "[a] suspect's confession may be traced to . . .
an intervening event," it " must [be] conclude[d]" that
subsequent Miranda warnings presumptively enable the
suspect to make "a rational and intelligent choice" whether to
repeat his confession. Ante at 470 U. S. 314 (emphasis added). In applying the intervening events inquiry,
however, "courts must use a surgeon's scalpel, and not a meat axe." Cf. 3 W. LaFave, Search and Seizure § 11.4, p. 624 (1978).
The only proper inquiry is whether a meaningful intervening event actually occurred, not whether Page 470 U. S. 342 a court simply chooses to shut its eyes to human nature and the
realities of custodial interrogation. 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 422 U. S. 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. C 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 470 U. S. 311 , 470 U. S. 314 .
Explicitly eschewing "a per se rule," ante at 470 U. S. 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 470 U. S. 308 , 470 U. S. 309 , 470 U. S. 312 ,
n. 3; see also ante at 470 U. S. 312 , 470 U. S. 314 , 470 U. S. 317 .
The Court thus concedes that lower courts must continue to be free
to "examine the surrounding circumstances and the Page 470 U. S. 343 entire course of police conduct with respect to the suspect in
evaluating the voluntariness of his statements." Ante at 470 U. S.
318 .

															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 470 U. S. 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 470 U. S.
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 470 U. S. 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 470 U. S. 312 .
[ Footnote 2/25 ] Finally, the Page 470 U. S. 344 foundation of the derivative evidence doctrine has always been
that, where the authorities have acted illegally, they must bear
the "ultimate burden" of proving that their misconduct did not
"taint" subsequently obtained evidence. Alderman v. United
States, 394 U. S. 165 , 394 U. S. 183 (1969); see also Nardone v. United States, 308 U.S. at 308 U. S. 341 .
That is precisely the point of the derivative evidence presumption.
By rejecting this presumption in Miranda cases, the Court
today appears to adopt a "go ahead and try to prove it" posture
toward citizens whose Fifth Amendment Miranda rights have
been violated, an attitude that marks a sharp break from the
Court's traditional approach to official lawlessness.

															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 308 U. S. 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 470 U. S. 318 .
Any overt Page 470 U. S. 345 use of the illegally secured statement by the police in
obtaining the subsequent confession must of course be viewed as
powerful evidence of a tainted connection; the Court itself asserts
that the officers in this case did not "exploit the unwarned
admission to pressure respondent" into giving his subsequent
confession. Ante at 470 U. S. 316 .
[ Footnote 2/26 ] In such
circumstances,

															"[h]aving '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 [subsequent
statements]." Harrison v. United States, 392 U.
S. 219 , 392 U. S.
224 -225 (1968).

															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 470 U. S.
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 470 U. S. 309 .
[ Footnote 2/27 ] In evaluating the
likely effects of such tactics, courts should continue to employ
many of the same elements traditionally used in dissipation
analysis. Thus, although the Court discounts the importance of a
"break in the stream of events" in Page 470 U. S. 346 the context of the derivative evidence presumption, the
proximity in time and place of the first and second confessions
surely remains a critical factor. See supra at 470 U. S.
339 -341. So too does the inquiry into possible
intervening events. Supra at 470 U. S.
341 -342. And if the official violation of Miranda was flagrant, courts may fairly conclude that the
violation was calculated, and employed precisely so as to
"undermine the suspect's ability to exercise his free will." Ante at 470 U. S. 309 . See also ante at 470 U. S. 314 ("deliberately . . . improper tactics" warrant a presumption of
compulsion). [ Footnote 2/28 ]

															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. II 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 470 U. S. 306 , 470 U. S. 307 , 470 U. S. 308 .
Thus, the potential impact of the Court's reasoning might extend
far beyond the Page 470 U. S. 347 "cat out of the bag" context to include the discovery of
physical evidence and other derivative fruits of Miranda violations as well. [ Footnote
2/29 ] A 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 Page 470 U. S. 348 rights. 384 U.S. at 384 U. S. 467 .
Far from serving merely as a prophylactic safeguard, "[t]he
requirement of warnings and waiver of rights is a fundamental with
respect to the Fifth Amendment privilege. . . ." Id. at 384 U. S. 476 .
It is precisely because this requirement embraces rights that are
deemed to serve a "central role in the preservation of basic
liberties," Malloy v. Hogan, 378 U. S.
1 , 378 U. S. 5 (1964), that it is binding on the States through the Fourteenth
Amendment, Miranda v. Arizona, 384 U.S. at 384 U. S.
467 .

															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 417 U. S.
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 467 U. S. 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's purpose was not promulgation of judicially
preferred standards for police interrogation, a function we are
quite powerless to perform; the decision enunciated
' constitutional standards for protection of the privilege'
against self-incrimination. 384 U.S. at 384 U. S.
491 ."

															417 U.S. at 417 U. S.
465 -466 (emphasis in original). Miranda clearly
emphasized that warnings and an informed waiver are essential to
the Fifth Amendment privilege itself. See supra at 470 U. S. 347 and this page. As noted in Tucker, Miranda did state that
the Constitution does not require Page 470 U. S. 349 " adherence to any particular solution'" for providing the
required knowledge and obtaining an informed waiver. 417 U.S. at 417 U. S. 444 (quoting Miranda, supra, at 384 U. S.
467 ). But to rely solely on this language in concluding
that the Miranda warnings are not constitutional rights,
as did the Court in Tucker, ignores the central issue. The
Court in Tucker omitted to mention that, in Miranda, after concluding that no "particular solution" is
required, we went on to emphasize that, "unless we are shown other procedures which are at least as
effective in apprising accused persons of their right of silence
and in assuring a continuous opportunity to exercise it, the
[prescribed] safeguards must be observed." Miranda, supra, at 384 U. S. 467 .
Thus

															"the use of [any] admissions obtained in the absence of the
required warnings [is] a flat violation of the Self-Incrimination
Clause of the Fifth Amendment. . . ." Orozco v. Texas, 394 U. S. 324 , 394 U. S. 326 (1969).

															The Court today finally recognizes these flaws in the logic of Tucker and Quarles. [ Footnote 2/30 ] Although disastrous in so many other
respects, today's opinion at least has the virtue of rejecting the
inaccurate assertion in Quarles that confessions extracted
in violation of Miranda are not presumptively coerced for
Fifth Amendment purposes. Cf. Quarles, supra, at 467 U. S. 655 ,
n. 5. Instead, the Court holds squarely that there is an
"irrebuttable" presumption that such confessions are indeed
coerced, and are therefore inadmissible under the Fifth Amendment
except in narrow circumstances. Ante at 470 U. S. 307 .
[ Footnote 2/31 ] B Unfortunately, the Court takes away with one hand far more than
what it has given with the other. Although the Page 470 U. S. 350 Court concedes, as it must, that a confession obtained in
violation of Miranda is irrebuttably presumed to be
coerced, and that the Self-Incrimination Clause therefore prevents
its use in the prosecution's case in chief, ante at 470 U. S.
306 -307, the Court goes on to hold that nothing in the
Fifth Amendment prevents the introduction at trial of evidence
proximately derived from the illegal confession. It contends, for
example, that the Fifth Amendment prohibits introduction "only" of
the "compelled testimony," and that this constitutional guarantee
"is not concerned with nontestimonial evidence." Ante at 470 U. S. 304 , 470 U. S.
307 .

															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 , 384 U. S. 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. [ Footnote
2/32 ] It bars "the use of compelled testimony, as well as
evidence derived directly and indirectly therefrom," and "prohibits
the prosecutorial authorities from using the compelled testimony in any respect." Kastigar v. United States, 406 U. S. 441 , 406 U. S. 453 (1972) (emphasis in original). If a coerced statement leads to
"sources of information which may supply other means of convicting"
the accused, those sources must also be suppressed. Conselman
v. Hitchcock, 142 U. S. 547 , 142 U. S. 586 (1892). Under this constitutional exclusionary rule, the
authorities are thus Page 470 U. S. 351 "prohibited from making any . . . use of compelled testimony and its fruits " "in connection with a criminal prosecution
against" the accused. Murphy v. Waterfront Comm'n, 378 U. S. 52 , 378 U. S. 79 (1964) (emphasis added). [ Footnote
2/33 ]

															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 406 U. S.
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 251 U. S. 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 470 U. S. 307 ,
the Court recurrently asserts elsewhere that the extraction of such
a confession is not really "a Fifth Amendment violation," ante at 470 U. S. 306 .
Thus, the Court suggests that a Miranda violation does not
constitute "police Page 470 U. S. 352 infringement of a constitutional right," that it is not "a
constitutional violation," that a suspect in such circumstances
"suffer[s] no identifiable constitutional harm," and that his
"Fifth Amendment rights" have not "actually [been] violated." Ante at 470 U. S. 304 , 470 U. S. 305 , 470 U. S. 307 , 470 U. S. 316 .
Similarly, the Court persists in reasoning that a confession
obtained in violation of Miranda "ordinarily" should be
viewed as "voluntary," a "voluntary disclosure of a guilty secret,"
"freely given," "noncoerc[ed]," and "wholly voluntary." Ante at 470 U. S. 311 , 470 U. S. 312 , 318318. I have already demonstrated the fallacy of this
reasoning. See Part 470 U. S. supra. Suffice it to say that the public will have
understandable difficulty in comprehending how a confession
obtained in violation of Miranda can at once be (1)
"irrebuttabl[y]" presumed to be the product of official compulsion,
and therefore suppressible as a matter of federal constitutional
law, ante at 470 U. S. 307 , 470 U. S. 317 ,
and (2) "noncoerc[ed]" and "wholly voluntary," ante at 470 U. S. 312 , 470 U. S.
318 .

															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 467 U. S. 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 384 U. S. 467 . See also Page 470 U. S. 353 Ziang Sung Wan v. United States, 266 U. S.
1 , 266 U. S. 14 -15
(1924) ("[A] confession obtained by compulsion must be excluded
whatever may have been the character of the compulsion, and whether
the compulsion was applied in a judicial proceeding or
otherwise ") (emphasis added); Brain v. United States, 168 U. S. 532 (1897). Thus there is no question that

															"all the principles embodied in the privilege apply to informal
compulsion exerted by law enforcement officers during in-custody
questioning." Miranda v. Arizona, supra at 384 U. S.
461 .

															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. [ Footnote 2/34 ]"

															Moreover,

															"[a]s a practical matter, the compulsion to speak in the [police
interrogation setting] may well be greater than in courts
or other official investigations, where there are often impartial
observers to guard against intimidation or trickery."

															384 U.S. at 384 U. S. 461 (emphasis added). [ Footnote 2/35 ]
In addition, there can be no legitimate dispute that Page 470 U. S. 354 an incriminating statement obtained through custodial
interrogation "is as revealing of leads" and other derivative
evidence as a statement compelled before a judicial tribunal. Murphy v. Waterfront Comm'n, 378 U.S. at 378 U. S. 103 (WHITE, J., concurring). Accordingly, Miranda itself
emphasized that, under the Fifth Amendment exclusionary rule,
" no evidence obtained as a result of interrogation can be
used against" the defendant unless he was warned of his rights and
gave an effective waiver. 384 U.S. at 384 U. S. 479 (emphasis added). [ Footnote
2/36 ]

															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. C 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 468 U. S.
919 -920, n. 20. Although Page 470 U. S. 355 I do not share the Court's view of the Fourth Amendment,
[ Footnote 2/37 ] Leon at
least had the virtue of recognizing that exclusion of derivative
evidence is essential to the effective deterrence of objectively
unreasonable failures by the authorities to obey the law. Ibid. .

															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 470 U. S. 312 , 470 U. S. 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 470 U. S.
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 417 U. S. 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 417 U. S. 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 417 U. S. 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 Page 470 U. S. 356 Miranda requirement would not significantly deter
future Miranda violations. As the Court noted, the
"deterrence rationale loses much of its force" when there is
nothing to deter. 417 U.S. at 417 U. S.
447 .

															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. [ Footnote
2/38 ]

															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 470 U. S. 308 .
If the police acted in an objectively unreasonable manner, see 470 U. S. 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 470 U. S. 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 Page 470 U. S. 357 often follow on a "silver platter." Cagle v. State, 45
Ala.App. at 4, 221 So. 2d at 120. See generally supra at 470 U. S.
329 -332. Expert interrogators themselves recognize the
direct connection between such statements. Supra at 470 U. S.
328 -329. And the Court's suggestion that its analysis
might apply generally to "fruits" of illegal interrogations, but see 470
U.S. 298 fn2/29|>n. 29, supra, blinks reality even
further. For example, expert interrogators acknowledge that
confessions are " the prime source of other evidence. '"
[ Footnote 2/39 ] If the police,
through illegal interrogation, could discover contraband and be
confident that the contraband "ordinarily" would not be suppressed,
what possible incentive would they have to obey Miranda? 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 308 U. S.
340 .

															"[I]t is clear that, if the police were permitted to utilize
illegally obtained confessions for links and leads, rather than
being required to gather evidence independently, then the Miranda warnings would be of no value in protecting the
privilege against self-incrimination. The requirement of a warning
would be meaningless, for the police would be permitted to
accomplish indirectly what they could not accomplish directly, and
there would exist no incentive to warn."

															Pitler, 56 Calif.L.Rev. supra, 470
U.S. 298 fn2/16|>n. 16, at 620. Page 470 U. S. 358 As the Executive Director of the National District Attorneys
Association Foundation emphasized shortly after Miranda, merely to exclude the statement itself while putting no curbs on
the admission of derivative evidence "would destroy the whole basis
for the rule in the first instance." Nedrud, The New Fifth
Amendment Concept: Self-Incrimination Redefined, 2
J.Nat.Dist.Att.Assn.Found. 112, 114 (1966). [ Footnote 2/40 ] Yet that is precisely the result that
today's disastrous opinion threatens to encourage. How can the
Court possibly expect the authorities to obey Miranda when
they have every incentive now to interrogate suspects without
warnings or an effective waiver, knowing that the fruits of such
interrogations "ordinarily" will be admitted, that an admissible
subsequent confession "ordinarily" can be obtained simply by
reciting the Miranda warnings shortly after the first has
been procured and asking the accused to repeat himself, and that,
unless the accused can demonstrate otherwise, his confession will
be viewed as an "act of free will" in response to "legitimate
law Page 470 U. S. 359 enforcement activity"? Ante at 470 U. S. 311 , 470 U. S. 312 .
By condoning such a result, the Court today encourages practices
that threaten to reduce Miranda to a mere "form of words," Silverthorne Lumber Co. v. United States, 251 U.S. at 251 U. S. 392 ,
and it is shocking that the Court nevertheless disingenuously
purports that it "in no way retreats" from the Miranda safeguards, ante at 470 U. S.
317 . D 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 470 U. S. 309 , 470 U. S. 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.
[ Footnote 2/41 ]

															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. Page 470 U. S. 360 First. The Court asserts that "[n]either the
environment nor the manner of either interrogation' was
coercive," noting that the initial interrogation took place in
Elstad's "own home." Ante at 470 U. S. 315 .
The Court also believes that, "[a]lthough, in retrospect, the officers testified that
respondent was then in custody, at the time he made his statement
he had not been informed that he was under arrest." Ibid. There is no question, however, that Michael
Elstad was in custody and "deprived of his freedom of action in [a]
significant way" at the time he was interrogated. Miranda v.
Arizona, 384 U.S. at 384 U. S. 444 .
Two police officers had entered his bedroom, ordered him to get out
of bed and come with them, stood over him while he dressed, taken
him downstairs, and separated him from his mother. Tr. 64-65,
74-75, 80-84. The officers themselves acknowledged that Elstad was
then under arrest. Id. at 81-82. Moreover, we have made
clear that police interrogation of an accused in custody triggers
the Miranda safeguard even if he is in the "familiar
surroundings" of his own home, precisely because he is no less
" deprived of his freedom of action'" there than if he were at a
police station. Orozco v. Texas, 394 U.S. at 394 U. S.
326 -327 (citation omitted). 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 384 U. S. 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 384 U. S.
468 . Second. Without anything in the record to support its
speculation, the Court suggests that Officer Burke's violation Page 470 U. S. 361 of Miranda "may have been the result of confusion as to
whether the brief exchange qualified as custodial
interrogation'. . . ." Ante at 470 U. S. 315 .
There was no confusion on this point until today. Burke made Elstad
sit down and, standing over him, said "[y]ou know why we're here,"
asked if he knew the Gross family, and "asked what he knew about
the burglary." Tr. 83-84. This questioning obviously constituted
interrogation, because it was "reasonably likely to evoke an
incriminating response" from Elstad, as it did. Rhode Island v.
Innis, 446 U. S. 291 , 446 U. S. 301 (1980). 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 470 U. S. 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 470 U. S.
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 Page 470 U. S. 362 whether his relatives might be upset. Surely there is no "tender
feelings" exception to the Fifth Amendment privilege against
self-incrimination. [ Footnote
2/42 ] III 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 468 U. S. 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 470 U. S.
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 Page 470 U. S. 363 "irretrievably" lead to suppression. If a subsequent confession
is truly independent of earlier, illegally obtained confessions,
nothing prevents its full use to secure the accused's conviction.
If the subsequent confession did result from the earlier
illegalities, however, there is nothing "voluntary" about it. And
even if a tainted subsequent confession is "highly probative," we
have never until today permitted probity to override the fact that
the confession was "the product of constitutionally impermissible
methods in [its] inducement." Rogers v. Richmond, 365 U. S. 534 , 365 U. S. 541 (1961). In such circumstances, the Fifth Amendment makes clear that
the prosecutor has no entitlement to use the confession in
attempting to obtain the accused's conviction. [ Footnote 2/43 ]

															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. [ Footnote 2/44 ]

															"There is hope, however, that in time, this or some later Court
will restore Page 470 U. S. 364 these precious freedoms to their rightful place as a primary
protection for our citizens against overreaching officialdom." United States v. Leon, supra, at 468 U. S. 960 (BRENNAN, J., dissenting).

															I dissent.

															[ Footnote 2/1 ]

															"Prior to any questioning, the person must be warned that he has
a right to remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently."

															384 U.S. at 384 U. S.
444 .

															[ Footnote 2/2 ]

															The Court repeatedly casts its analysis in terms of the "fruits"
of a Miranda violation, see ante at 470 U. S. 306 , 470 U. S. 307 , 470 U. S. 308 ,
but its dicta nevertheless surely should not be read as necessarily
foreclosing application of derivative evidence rules where the Miranda violation produces evidence other than a
subsequent confession by the accused. See 470
U.S. 298 fn2/29|>n. 29, infra. [ Footnote 2/3 ] See, e.g., United States v. Lee, 699 F.2d 466, 468-469
(CA9 1982); United States v. Nash, 563 F.2d 1166, 1169 (CA5 1977); Randall v. Estelle, 492 F.2d 118, 120 (CA5 1974); Fisher v. Scafati, 439 F.2d 307, 311 (CA1), cert.
denied, 403 U.S. 939 (1971); United States v. Pierce, 397 F.2d 128, 130-131 (CA4 1968); Evans v. United States, 375 F.2d 355, 360-361 (CA8 1967), rev'd on other grounds sub
nom. Bruton v. United States, 391 U.
S. 123 (1968); United States ex rel. Sanders v.
Rowe, 460 F.
Supp. 1128 , 1137-1138 (ND Ill.1978); United States v.
Pellegrini, 309 F.
Supp. 250 , 257 (SDNY 1970). Cf. Killough v. United
States, 114 U.S.App.D.C. 305, 312, 315 F.2d 241, 248 (1962)
(Wright, J., concurring) ( McNabb-Mallory violation)
( McNabb v. United States, 318 U.
S. 332 (1943); Mallory v. United States, 354 U. S. 449 (1957)).

															[ Footnote 2/4 ]

															Three decisions from the Second and Ninth Circuits that are
cited in the Court's opinion reached similar results. See
ante at 470 U. S. 310 ,
n. 2, citing United States v. Bowler, 561 F.2d 1323 (CA9
1977); United States v. Toral, 536 F.2d 893 (CA9 1976);
and United States v. Knight, 395 F.2d 971 (CA2 1968), cert. denied, 395 U.S. 930 (1969). Yet subsequent
decisions of the Ninth Circuit have made clear that Bowler and Toral have not led to an abandonment of traditional
derivative evidence analysis in that jurisdiction. See, e.g.,
United States v. Lee, supra, at 468-469 ("Here, the second
confession, a virtual repetition of the first, was obtained less
than 24 hours after the first confession was elicited without Miranda warnings. . . . [T]he [second] confession was
correctly suppressed as the fruit of the poisonous tree"). And the
Second Circuit has expressly reserved the question whether "the
exclusion of a second confession might be required in order to
deter avoidance of Miranda in obtaining the first." Tanner v. Vincent, 541 F.2d 932, 937, n. 5 (1976), cert. denied, 429 U.S. 1065 (1977).

															[ Footnote 2/5 ] See, e.g., State v. Montes, 136 Ariz. 491, 496-497, 667 P.2d 191 ,
196-197 (1983) (en banc); State v. Holt, 354 So. 2d 888,
890 (Fla.App.), cert. denied, 361 So. 2d 832 (Fla.1978); Fried v. State, 42 Md.App. 643, 646-648, 402 A.2d 101 , 102-104 (1979).

															[ Footnote 2/6 ] See, e.g., Cagle v. State, 45 Ala. App. 3, 4, 221 So.
2d 119, 120 (subsequent confession suppressed), cert.
denied, 284 Ala. 727, 221 So. 2d
121 (1969); People v. Braeseke, 25 Cal. 3d
691 , 703-704, 602 P.2d 384, 391-392 (1979) (same), vacated
on other grounds, 446 U.S. 932 (1980); In re Pablo A.
C., 129 Cal. App.
3d 984 , 989-991, 181 Cal. Rptr.
468 , 471-472 (1982) (same); People v.
Saiz, 620 P.2d
15 , 19-21 (Colo.1980) (en banc) (same); People v.
Algien, 180 Colo. 1, 8, 501 P.2d 468 ,
471 (1972) (en banc) (same); State v. Derrico, 181
Conn.151, 165-167, 434 A.2d 356, 365-366 (taint dissipated), cert. denied, 449 U.S. 1064 (1980); Smith v.
State, 132 Ga.App. 491, 492, 208 S.E.2d
351 (1974) (subsequent confession suppressed); State v.
Medeiros, 4 Haw.App. 248, 252-253, 665
P.2d 181 , 184-185 (1983) (taint dissipated); People v.
Jordan, 90 Ill.App.3d 489, 495, 413 N.E.2d 195, 199 (1980)
(subsequent confession suppressed); People v. Raddatz, 91
Ill.App.2d 425, 429-436, 235 N.E.2d 353, 355-359 (1968) (same); State v. Gress, 210 Kan. 850, 852-854, 504 P.2d 256 ,
259-261 (1972) (taint dissipated); State v. Lekas, 201
Kan. 579, 585-588, 442 P.2d 11 ,
17-19 (1968) (subsequent confession suppressed); State v.
Young, 344 So.
2d 983 , 987 (La.1977) (taint dissipated); State v.
Welch, 337 So.
2d 1114 , 1120 (La.1976) (subsequent confession suppressed); State v. Ayers, 433 A.2d
356 , 362 (Me.1981) (trial statement suppressed); State v.
Sickels, 275 N.W.2d
809 , 813-814 (Minn.1979) (taint dissipated); State v.
Raymond, 305 Minn. 160, 168-172, 232 N.W.2d
879 , 884-886 (1975) (same); Brunson v.
State, 264 So. 2d
817 , 819-820 (Miss.1972) (subsequent confession suppressed); State v. Wright, 515 S.W.2d
421 , 426-427 (Mo.1974) (en banc) (taint dissipated); State
v. Williams, 486 S.W.2d
468 , 474 (Mo.1972)
(subsequent confession suppressed); In re R. P. S., ___
Mont. ___, ___, 623 P.2d 964, 968-969 (1981) (taint dissipated); Rhodes v. State, 91 Nev. 17, 21-22, 530 P.2d 1199 ,
1201-1202 (1975) (dictum); People v. Bodner, 75 App.Div.2d
440, 447-449, 430 N.Y.S.2d 433, 438-439 (1980) (subsequent
confession suppressed); State v. Edwards, 284 N.C. 76,
78-81, 199 S.E.2d
459 , 461-462 (1973) (same); State v. Hibdon, 57
Ore.App. 509, 512, 645 P.2d
580 (1982) (same); Commonwealth v. Chacko, 500 Pa.
571, 580-582, 459 A.2d
311 , 316 (1983) (taint dissipated); Commonwealth v.
Wideman, 460 Pa. 699, 708-709, 334 A.2d
594 , 599 (1975) (subsequent confession suppressed); State v.
Branch, 298 N.W.2d
173 , 175-176 (S.D.1980) (taint dissipated); Martin v.
State, 1 Tenn. Crim. App. 282, 289-291, 440 S.W.2d 624 , 627-628 (1968) (subsequent confession
suppressed); State v. Badger, 141 Vt. 430, 439-441, 450 A.2d 336 ,
342-343 (1982) (same); State v. Lavaris, 99 Wash. 2d
851 , 856-860, 664 P.2d
1234 , 1237-1239 (1983) (en banc) (same).

															The Court scrambles to distinguish some of the cases cited in
this footnote and in notes 470
U.S. 298 fn2/3|>3 and 470
U.S. 298 fn2/4|>4, supra, arguing that "JUSTICE
BRENNAN cannot seriously mean to equate" these precedents with the
case at hand. Ante at 313, n. 470
U.S. 298 fn2/3|>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.

															[ Footnote 2/7 ]

															The application of the "cat out of the bag" presumption is
further illustrated by our decision in Harrison v. United
States, 392 U. S. 219 (1968). Harrison took the stand at his trial in an attempt to rebut
illegally obtained confessions that the prosecution had been
permitted to introduce into evidence. His conviction was overturned
on appeal because of the introduction of these confessions. On
retrial, Harrison's earlier trial testimony was introduced, and led
to his second conviction. We reversed that conviction, reasoning
that, if Harrison testified

															"in order to overcome the impact of confessions illegally
obtained and hence improperly introduced, then his testimony was
tainted by the same illegality that rendered the confessions
themselves inadmissible." Id. at 392 U. S. 223 .
We observed:

															"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 392 U. S.
224 -225 (footnotes omitted).

															The Court today cryptically acknowledges the Harrison precedent, ante at 470 U. S.
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).

															[ Footnote 2/8 ] See also A. Aubry & R. Caputo, Criminal
Interrogation 206 (3d ed.1980) (discussing the " fait
accompli, " or "what's done is done, and you can't change it
now" approach), id. at 239 (discussing the "I would sure
hate to be in your shoes" and the "[t]hings sure look dark for you"
techniques); F. Inbau & J. Reid, Criminal Interrogation and
Confessions 26-31 (2d ed.1967) (displaying an air of confidence in
the subject's guilt), id. at 77 (creating the impression
of the futility of resistance); R. Royal & S. Schutt, The
Gentle Art of Interviewing and Interrogation: A Professional Manual
and Guide 145-149 (1976) (techniques for "capitaliz[ing]" on the
"breakthrough" admission).

															[ Footnote 2/9 ] See also United States v. Nash, 563 F.2d at 1168; People v. Saiz, 620 P.2d at 20; State v. Lekas, 201 Kan. at 581-582, 442 P.2d at 14-15; Commonwealth v.
Wideman, 460 Pa. at 704, 334 A.2d at 597; State v.
Badger, 141 Vt. at 434-437, 450 A.2d at 339-340; State v.
Lavaris, 99 Wash. 2d at 854-856, 664 P.2d at 1236-1237.

															[ Footnote 2/10 ] See, e.g., United States v. Lee, 699 F.2d at 467-469; Smith v. State, 132 Ga.App. at 491-492, 208 S.E.2d at 351; State v. Welch, 337 So. 2d at 1120; Martin v.
State, 1 Tenn.Crim.App. at 289-290, 440 S.W.2d at 627; State v. Badger, supra, at 440, 450 A.2d at 342.

															[ Footnote 2/11 ] See, e.g., United States v. Pierce, 397 F.2d at
129-130; Evans v. United States, 375 F.2d at 358; Cagle v. State, 45 Ala.App. at 4, 221 So. 2d at 120; People v. Braeseke, 25 Cal. 3d at 695-696, 602 P.2d at
386-388; People v. Algien, 180 Colo. at 4-5, 501 P.2d at
469-470; People v. Raddatz, 91 Ill.App.2d at 428-429, 235
N.E.2d at 355; Rhodes v. State, 91 Nev. at 21, 530 P.2d at
1201.

															[ Footnote 2/12 ] See, e.g., Randall v. Estelle, 492 F.2d at 119-120; In re Pablo A. C., 129 Cal. App. 3d at 987-988, 181 Cal.
Rptr. at 470; Note, 45 Denver L.J. 427, 462-463 (1968).

															[ Footnote 2/13 ] See also Killough v. United States, 114 U.S.App.D.C. at
313-314, 315 F.2d at 249-250 (Wright, J., concurring)
( McNabb-Mallory violation) ("[H]uman nature being what it
is, we must recognize a presumption that one [confession] is the
fruit of the other. . . . While the psychological helplessness that
comes from surrender need not last forever, . . . the burden should
be on the Government to show that a second confession did not
spring from a mind in which all the mechanisms of resistance are
still subdued by defeat and the apparent futility of further
combat").

															[ Footnote 2/14 ]

															The Court cites three cases in support of its assertion that an
illegally obtained "guilty secret" does not "ordinarily" compromise
the voluntariness of a subsequent confession preceded by the usual Miranda warnings. Ante at 470 U. S.
316 -317. These cases are all inapposite. The Court in McMann v. Richardson, 397 U. S. 759 (1970), held that a defendant's guilty plea may not be attacked on
federal collateral review on the ground that it was induced by the
mistaken assumption that an illegal confession might have been
admitted at trial and have led to conviction. Id. at 397 U. S. 770 .
The Court emphasized that this bar applies only when the defendant
pleads in "open court" and the decision not to challenge the
confession is based on "the good faith evaluations of a reasonably
competent attorney." Id. at 397 U. S. 770 ,
773. Thus, the defendant's decision to reiterate the confession is
insulated in these circumstances by the assistance of counsel and
review by a court -- factors wholly absent in the confession
context at hand. The Court in McMann noted that collateral
review is available where the defendant "was incompetently advised
by his attorney," id. at 397 U. S. 772 ,
and in light of this qualification, I cannot see how that case is
at all analogous to uncounseled decisions to repeat a proximate
confession.

															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 394 U. S. 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 463 U. S.
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 463 U. S.
1125 (citation omitted). Michael Elstad obviously was in
custody at the time he was questioned. See 470 U. S. infra. [ Footnote 2/15 ]

															Under a contrary rule, we emphasized,

															"[a]ny incentive to avoid Fourth Amendment violations would be
eviscerated by making the warnings, in effect, a 'cure-all,' and
the constitutional guarantee against unlawful searches and seizures
could be said to be reduced to 'a form of words.'"

															422 U.S. at 422 U. S.
602 -603.

															[ Footnote 2/16 ] See, e.g., Fisher v. Scafati, 439 F.2d at 311 ("All
that intervened between the two confessions was a full Miranda warning, which of course did not warn the
defendant that the first confession was invalid, and could not be
used against him"); People v. Saiz, 620 P.2d at 20; People v. Raddatz, 91 Ill.App.2d at 434, 235 N.E.2d at
357-358 ("If a suspect is to intelligently waive his Fifth
Amendment rights, he is entitled to know the scope of the
amendment's protection at the time he is being interrogated. In the
absence of this knowledge of the consequence of his prior
confession, Raddatz' waiver of rights cannot be considered one
intelligently made"); State v. Lavaris, 99 Wash. 2d at
860, 664 P.2d at 1239. See also Pitler, "The Fruit of the
Poisonous Tree" Revisited and Shepardized, 56 Calif.L.Rev. 579,
608-609 (1968). Cf. Killough v. United States, 114
U.S.App.D.C. at 313, 315 F.2d at 249 (Wright, J., concurring) ("The
assumption that a commissioner's statement to an accused, who has
already confessed, that he may remain silent, will immediately
remove the psychological disadvantage he suffers when confronting
the same officers, who know his secret, is simply
unrealistic").

															[ Footnote 2/17 ]

															"It has also been held, generally, that the influence of the
improper inducement is removed when the accused is properly
cautioned before the subsequent confession. The warning so given,
however, should be explicit, and it ought to be full enough to
apprise the accused (1) that anything he may say after such warning
can be used against him; and (2) that his previous confession, made
under improper inducement, cannot be used against him."

															2 F. Wharton, Criminal Evidence § 359, p. 66 (12th ed.1955)
(citing cases). See also Williams v. United States, 328
F.2d 669, 672-673 (CA5 1964); State v. Edwards, 284 N.C.
at 80-81, 199 S.E.2d at 462; State v. Williams, 162 W.Va.
309, 318, 249 S.E.2d
758 , 764 (1978); 1 W. LaFave & J. Israel, Criminal
Procedure § 9.4, p. 747, § 9.5, p. 767 (1984); E. Cleary, McCormick
on Evidence § 157, pp. 345-346 (2d ed.1972).

															[ Footnote 2/18 ] See 470
U.S. 298 fn2/41|>n. 41, infra. [ Footnote 2/19 ]

															In addition to the sources cited in 470
U.S. 298 fn2/17|>n. 17, supra, see Note, 45 Denver
L.J. supra, 470
U.S. 298 fn2/12|>n. 12, at 463, suggesting the following
warning:

															"Nothing that you may have said or confessed to prior to this
time to any law enforcement official may be used against you in any
way unless they first told you of your right to remain silent and
to talk to an attorney and have him present during questioning, and
you then agreed to talk to them. Do you understand?"

															[ Footnote 2/20 ] See, e.g., State v. Raymond, 305 Minn. at 171-172, 232
N.W.2d at 886.

															[ Footnote 2/21 ] See, e.g., State v. Medeiros, 4 Haw.App. at 252-253,
665 P.2d at 184-185; People v. Raddatz, 91 Ill.App.2d at
431-433, 235 N.E.2d at 356-357; State v. Lekas, 201 Kan.
at 585, 442 P.2d at 17; People v. Bodner, 75 App.Div.2d at
447-448, 430 N.Y.S.2d at 438; State v. Badger, 141 Vt. at
439-440, 450 A.2d at 342; State v. Lavaris, supra, at
857-858, 664 P.2d at 1237-1238. See also People v. Saiz, 620 P.2d at 20; Rhodes v. State, 91 Nev. at 21, 530 P.2d
at 1201. See generally George, The Fruits of Miranda: Scope of the Exclusionary Rule, 39 U.Colo.L.Rev.
478, 492-494 (1967); Pitler, 56 Calif.L.Rev. supra, 470
U.S. 298 fn2/16|>n. 16 at 612-613, 618; Comment, 41 Brooklyn
L.Rev. 325, 330 (1974); Note, 45 Denver L.J. supra, 470
U.S. 298 fn2/12|>n. 12, at 461-463.

															After reviewing the cases cited in nn. 470
U.S. 298 fn2/3|>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 470 U. S. 310 ,
and n. 1. This is incorrect. Whether "explicitly" or "implicitly,"
the majority of the cited cases have "recognized" precisely the
contrary.

															[ Footnote 2/22 ]

															We advised:

															"A different case would be presented if an accused were taken
into custody by the second authority, removed both in time and
place from his original surroundings, and then adequately advised
of his rights and given an opportunity to exercise them."

															384 U.S. at 384 U. S.
496 .

															[ Footnote 2/23 ] See, e.g., State v. Medeiros, supra, at 252-253, 665
P.2d at 184-185; In re R. P. S., ___ Mont. at ___, 623
P.2d at 969.

															[ Footnote 2/24 ] See cases in nn. 470
U.S. 298 fn2/16|>16, 470
U.S. 298 fn2/22|>22, supra. [ Footnote 2/25 ]

															The Court appears to limit the reach of its "guilty secret"
doctrine to so-called "voluntary" confessions, but the logic of its
analysis raises disturbing implications for the application of
derivative evidence rules to involuntarily obtained confessions. If
a confession were extracted through savage beatings or other
unconscionable techniques, and the accused were then permitted a
good night's sleep and were questioned the next day by sympathetic
officers, most would agree that the subsequent confession, if given
out of the defeated feeling that the accused had nothing more to
lose, should not be admissible, because it just as surely was the
product of torture as the earlier confession. Yet the Court
permitted the admission of just such a confession in Lyons v.
Oklahoma, 322 U. S. 596 (1944). In light of the maturation of our scruples against such
techniques over the past 40 years, I believe such a result would be
impossible today. See, e.g., Darwin v. Connecticut, 391 U. S. 346 , 391 U. S.
350 -351 (1968) (Harlan, J., concurring in part and
dissenting in part). Yet today the Court cites Lyons as
support for its "guilty secret" doctrine. Ante at 470 U. S.
311 -312. Although I am confident that the entire Court
would never sanction the multiple confession technique employed in Lyons, I nevertheless respectfully submit that it is
impossible to perceive any causal distinction between the "guilty
secret" consequences of a confession that is presumptively coerced
under Miranda and one that is actually coerced through
torture.

															[ Footnote 2/26 ]

															The Court's reliance on this qualification undermines the
fallacious suggestion elsewhere in its opinion that an illegally
obtained "guilty secret" may be used to secure a confession. Ante at 470 U. S.
312 .

															[ Footnote 2/27 ] See, e.g., Pitler, 56 Calif.L.Rev. supra, 470
U.S. 298 fn2/16|>n. 16, at 617:

															"[P]olice could procure a confession absent the warnings, then
take the suspect out for dinner, let him shower, shave, get a good
twelve hours sleep, and the next day let two different officers
warn and question him. The questioning need not even refer
tangentially to the previous confession; for the suspect has those
spoken words imprinted on his mind, and assumes they can be used
against him. Under such circumstances is any waiver the product of
a free will and a rational intellect?"

															[ Footnote 2/28 ]

															In addition, the Court concedes that its new analysis does not
apply where the authorities have ignored the accused's actual
invocation of his Miranda rights to remain silent or to
consult with counsel. Ante at 470 U. S.
312 -314, n. 3. In such circumstances, courts should
continue to apply the traditional presumption of tainted
connection.

															[ Footnote 2/29 ]

															Notwithstanding the sweep of the Court's language, today's
opinion surely ought not be read as also foreclosing application of
the traditional derivative evidence presumption to physical
evidence obtained as a proximate result of a Miranda violation. The Court relies heavily on individual "volition" as an
insulating factor in successive confession cases. Ante at 470 U. S.
308 -309, 470 U. S. 314 .
Although the Court's reliance on this factor is clearly misplaced, see supra at 470 U. S.
328 -332, the factor is altogether missing in the context
of inanimate evidence.

															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); Nolle 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.

															[ Footnote 2/30 ]

															For an incisive critique of Tucker, see Stone, The Miranda Doctrine in the Burger Court, 1977 S.Ct.Rev. 99,
115-125.

															[ Footnote 2/31 ]

															The exceptions are where a confession is used to impeach the
defendant's trial testimony, Harris v. New York, 401 U. S. 222 (1971), and where Miranda warnings were not given because
of "pressing public safety concerns," ante at 470 U. S. 317 ,
citing New York v. Quarles, 467 U.
S. 649 (1984).

															[ Footnote 2/32 ]

															The Court's reliance on Schmerber in support of its
constricted view of the Fifth Amendment, ante at 470 U. S. 304 ,
is wholly inappropriate. Schmerber had nothing to do with
the derivative evidence rule, but held only that the evidence
compelled in the first instance in that case -- blood samples --
was nontestimonial in nature. 384 U.S. at 384 U. S.
761 .

															[ Footnote 2/33 ] See also United States v. Mandujano, 425 U.
S. 564 , 425 U. S. 576 (1976); Maness v. Meyers, 419 U.
S. 449 , 419 U. S. 461 (1975); Lefkowitz v. Turley, 414 U. S.
70 , 414 U. S. 78 (1973) ("compelled answers and evidence derived therefrom" must be
suppressed); Ullmann v. United States, 350 U.
S. 422 , 350 U. S. 437 (1956) (Self-Incrimination Clause requires suppression of
"knowledge and sources of information obtained from the compelled
testimony"); Hoffman v. United States, 341 U.
S. 479 , 341 U. S. 486 (1951); Arndstein v. McCarthy, 254 U. S.
71 , 254 U. S. 73 (1920).

															[ Footnote 2/34 ]

															LaFave & Israel, supra, 470
U.S. 298 fn2/17|>n. 17, § 6.5(a), p. 480, n. 13. See
also Y. Kamisar, Police Interrogation and Confessions 48-55
(1980); Morgan, The Privilege Against Self-Incrimination, 34
Minn.L.Rev. 1, 27, 28 (1949):

															"The function which the police have assumed in interrogating an
accused is exactly that of the early committing magistrates, and
the opportunities for imposition and abuse are fraught with much
greater danger. . . . Investigation by the police is not judicial,
but when it consists of an examination of an accused, it is quite
as much an official proceeding as the early English preliminary
hearing before a magistrate, and it has none of the safeguards of a
judicial proceeding. . . . [T]his surely is an area that needs
inclusion for reasons infinitely more compelling than those
applicable to the arraignment."

															[ Footnote 2/35 ] Accord, Kastigar v. United States, 406 U.
S. 441 , 406 U. S. 461 (1972). As we observed in Miranda, "[a]n individual swept from familiar surroundings into police
custody, surrounded by antagonistic forces, and subjected to the
techniques of persuasion described above cannot be otherwise than
under compulsion to speak."

															384 U.S. at 384 U. S.
461 .

															[ Footnote 2/36 ]

															Justices Clark and Harlan, dissenting in Miranda, recognized the applicability of the derivative evidence rule. See, e.g., id. at 384 U. S. 500 (Clark, J., dissenting in part and
concurring in part in result) ("[F]ailure to follow the new
procedures requires inexorably the exclusion of any statement by
the accused, as well as the fruits thereof"); id. at 384 U. S. 522 (Harlan, J., dissenting). But see id. at 384 U. S. 545 (WHITE, J., dissenting) (question remains open).

															[ Footnote 2/37 ] See United States v. Leon, 468 U.S. at 468 U. S. 928 (BRENNAN, J., dissenting) .

															[ Footnote 2/38 ] See, e.g., United States v. Downing, 665 F.2d at 407; State v. Preston, 411 A.2d at 407-408 ("[I]f the rationale
of the majority in Tucker is followed, it becomes
important to determine in each such case of derivative evidence
whether, in the circumstances, enforcement of the exclusionary rule
has some tendency to deter the police from engaging in conduct
violating the fifth and sixth amendment rights of the accused"); In re Appeal No. 245 (75), 29 Md.App. at 150-151, 349 A.2d
at 445-446; Comment, 41 Brooklyn L.Rev., supra, 470
U.S. 298 fn2/21|>n. 21, at 339-340; Comment, 24
Clev.St.L.Rev. 689, 692-694 (1975).

															[ Footnote 2/39 ]

															C. O'Hara & G. O'Hara, Fundamentals of Criminal
Investigation 131 (5th ed.1980). See also Aubry &
Caputo, supra, 470
U.S. 298 fn2/8|>n. 8, at 24-25; id. at 27-28
("Interrogation is valuable in developing information leading to
the recovery of the fruits of the crime. . . . The process of
interrogation ideally lends itself to the accomplishment of the
recovery of the fruits of the crime, particularly in the areas of
stolen property, contraband, and money"); O. Stephens, The Supreme
Court and Confessions of Guilt 192 (1973) (survey-research
findings).

															[ Footnote 2/40 ]

															"What is the point of formulating comprehensive rules as the
Court did in Miranda if the police still have a
substantial incentive to continue to disregard these rules, if the
police can still make use of all the leads and clues stemming from
the inadmissible statements or confessions? You are not going to
influence police practices greatly, you are not likely to get the
police to change their procedures, if you permit them to operate on
the premise that, even if they pay no attention to Miranda, they can still obtain and introduce in a trial
valuable evidence derived from the suspect's statements."

															" * * * *" ". . . 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, 470
U.S. 298 fn2/16|>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, wold emasculate the rights granted by Miranda ") (footnote omitted).

															[ Footnote 2/41 ] Solem v. Stumes, 465 U. S. 638 , 465 U. S.
646 -647 (1984). See also Smith v. Illinois, 469 U. S. 91 (1984)
(per curiam); Edwards v. Arizona, 451 U.
S. 477 (1981); Fare v. Michael C., 442 U.
S. 707 , 442 U. S. 718 (1979). See also Schulhofer, Confessions and the Court, 79
Mich.L.Rev. 865, 879 (1981) (although there "was some potential
ambiguity at the fringes of custody' and `interrogation,'" the
Court in Miranda had "taken a big step toward clarifying
the ground rules of permissible interrogation" and "provided plenty
of guidance for the police"). [ Footnote 2/42 ]

															If the Court means to suggest otherwise, the authorities would
be well advised to arrest and interrogate suspects in the presence
of loved ones, so as to avoid the traumatizing need to obey Miranda. This procedure would fit in well with a classic
interrogation ploy -- the "you're just hurting yourself and your
loved ones" technique. See, e.g., Aubry & Caputo, supra, 470
U.S. 298 fn2/8|>n. 8, at 235:

															"The direct implication about hurting the loved ones can be made
by statements to the effect of 'What are your wife and children
going to think about you when they find out about this?' 'What are
your kids going to think of their father?' The subject has most
probably thought of little else since he was apprehended, and
having these ideas forcefully brought to his attention by the
interrogator is going to increase and intensify these fears and
anxieties." See also W. Dienstein, Technics for the Crime
Investigator 116 (2d ed.1974).

															[ Footnote 2/43 ]

															"The exclusion of an illegally procured confession and of any
testimony obtained in its wake deprives the Government of nothing
to which it has any lawful claim, and creates no impediment to
legitimate methods of investigating and prosecuting crime. On the
contrary, the exclusion of evidence causally linked to the
Government's illegal activity no more than restores the situation
that would have prevailed if the Government had itself obeyed the
law." Harrison v. United States, 392 U.S. at 392 U. S. 224 ,
n. 10.

															[ Footnote 2/44 ]

															"In light of today's erosion of Miranda standards as a
matter of federal constitutional law, it is appropriate to observe
that no State is precluded by the decision from adhering to higher
standards under state law. Each State has power to impose higher
standards governing police practices under state law than is
required by the Federal Constitution. . . . Understandably, state
courts and legislatures are, as matters of state law, increasingly
according protections once provided as federal rights but now
increasingly depreciated by decisions of this Court." Michigan v. Mosley, 423 U. S. 96 , 423 U. S.
120 -121 (1975) (BRENNAN, J., dissenting).

															JUSTICE STEVENS, dissenting.

															The Court concludes its opinion with a carefully phrased
statement of its holding:

															"We hold today that a suspect who has once responded to unwarned
yet uncoercive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite Miranda warnings." Ante at 470 U. S. 318 .
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, [ Footnote 3/1 ] and because the Court places
so much emphasis on the special facts of this case, I am persuaded
that the Court intends its holding to apply only to a narrow
category of cases in which the initial questioning of the suspect
was made in a totally uncoercive setting, and in which the first
confession obviously had no influence on the second. [ Footnote 3/2 ] I nevertheless Page 470 U. S. 365 dissent, because even such a narrowly confined exception is
inconsistent with the Court's prior cases, because the attempt to
identify its boundaries in future cases will breed confusion and
uncertainty in the administration of criminal justice, and because
it denigrates the importance of one of the core constitutional
rights that protects every American citizen from the kind of
tyranny that has flourished in other societies. I 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, [ Footnote
3/3 ] and (2) that no constitutional right was violated when
respondent was questioned in a tranquil, domestic setting.
[ Footnote 3/4 ] Page 470 U. S. 366 Even before the decision in Miranda v. Arizona, 384 U. S. 436 (1966), it had been recognized that police interrogation of a
suspect who has been taken into custody is presumptively coercive.
That presumption had its greatest force when the questioning
occurred in a police station, when it was prolonged, and when there
was evidence that the prisoner had suffered physical injury. To
rebut the presumption, the prosecutor had the burden of proving the
absence of any actual coercion. [ Footnote 3/5 ] Because police officers are generally more
credible witnesses than prisoners, and because it is always
difficult for triers of fact to disregard evidence of guilt when
addressing a procedural question, more often than not, the
presumption of coercion afforded only slight protection to the
accused.

															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. [ Footnote 3/6 ] If the police interrogation
is preceded by the warning specified in that opinion, the usual
presumption does not attach. Second, it provided an important
protection to the accused by making the presumption of coercion
irrebuttable if the prescribed warnings are not given. [ Footnote 3/7 ] Third, the decision Page 470 U. S. 367 made it clear that a self-incriminatory statement made in
response to custodial interrogation was always to be considered
"compelled" within the meaning of the Fifth Amendment to the
Federal Constitution if the interrogation had not been preceded by
appropriate warnings. [ Footnote
3/8 ] Thus, the irrebuttable presumption of coercion that
applies to such a self-incriminatory statement, like a finding of
actual coercion, renders the resulting confession inadmissible as a
matter of federal constitutional law. [ Footnote 3/9 ] Page 470 U. S. 368 In my opinion, the Court's attempt to fashion a distinction
between actual coercion "by physical violence or other deliberate
means calculated to break the suspect's will," ante at 470 U. S. 312 ,
and irrebuttably presumed coercion cannot succeed. The presumption
is only legitimate if it is assumed that there is always a coercive
aspect to custodial interrogation that is not preceded by adequate
advice of the constitutional right to remain silent. Although I
would not support it, I could understand a rule that refused to
apply the presumption unless the interrogation took place in an
especially coercive setting -- perhaps only in the police station
itself -- but if the presumption arises whenever the accused has
been taken into custody or his freedom has been restrained in any
significant way, it will surely be futile to try to develop
subcategories of custodial interrogation. [ Footnote 3/10 ] Indeed, a major purpose of treating the
presumption of coercion as irrebuttable is to avoid the kind of
fact-bound inquiry that today's decision will surely engender.
[ Footnote 3/11 ]

															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 Page 470 U. S. 369 deliberate means calculated to break the suspect's will."
[ Footnote 3/12 ] Even in such a
case, however, it is not necessary to assume that the earlier
confession will always "effectively immunize" a later voluntary
confession. But surely the fact that an earlier confession was
obtained by unlawful methods should add force to the presumption of
coercion that attaches to subsequent custodial interrogation, and
should require the prosecutor to shoulder a heavier burden of
rebuttal than in a routine case. Simple logic, as well as the
interest in not providing an affirmative incentive to police
misconduct, requires that result. I see no reason why the violation
of a rule that is as well recognized and easily administered as the
duty to give Miranda warnings should not also impose an
additional burden on the prosecutor. [ Footnote 3/13 ] If we are faithful to the holding in Page 470 U. S. 370 Miranda itself, when we are considering the
admissibility of evidence in the prosecutor's case in chief, we
should not try to fashion a distinction between police misconduct
that warrants a finding of actual coercion and police misconduct
that establishes an irrebuttable presumption of coercion. II 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. [ Footnote 3/14 ] This ambivalence is either disingenuous
or completely lawless. This Court's power to require state courts
to exclude probative self-incriminatory statements rests entirely
on the premise that the use of such evidence violates the Federal
Constitution. [ Footnote 3/15 ] The
same constitutional analysis applies Page 470 U. S. 371 whether the custodial interrogation is actually coercive or
irrebuttably presumed to be coercive. If the Court does not accept
that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has
evolved from that decision, as nothing more than an illegitimate
exercise of raw judicial power. [ Footnote 3/16 ] If the Court accepts the proposition
that respondent's self-incriminatory statement was inadmissible, it
must also acknowledge that the Federal Constitution protected him
from custodial police interrogation without first being advised of
his right to remain silent.

															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, [ Footnote 3/17 ] by "the
Germans of the 1930's and early 1940's," [ Footnote 3/18 ] and by some of our own police
departments only a few decades ago. [ Footnote 3/19 ] Page 470 U. S. 372 Custodial interrogation that violates that provision of the Bill
of Rights is a classic example of a violation of a constitutional
right.

															I respectfully dissent.

															[ Footnote 3/1 ]

															"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 467 U. S.
655 -656. The Court today in no way retreats from the
bright-line rule of Miranda. " Ante at 470 U. S.
317 .

															[ Footnote 3/2 ]

															The Court emphasizes the noncoercive setting in which the
initial interview occurred, ante at 470 U. S.
300 -301, 470 U. S. 315 ;
the apparent candor of the respondent during both of his interviews
with the police, ante at 470 U. S.
301 -302, and the absence of any evidence suggesting that
the second confession was motivated by the first, ante at 470 U. S.
315 -316. Further, the Court characterizes the first
confession as "patently voluntary, " ante at 470 U. S. 307 (emphasis in original), because it was not the product of any
"physical violence or other deliberate means calculated to break
the suspect's will," ante at 470 U. S. 312 .
Moreover, the Court -- apparently not satisfied that the State has
conceded that respondent was in custody at the time of the unwarned
admission, ante at 470 U. S. 315 -- launches into an allegedly fact-based discussion of this
"issue," going out of its way to speculate about the probable good
faith of the officers. See ante at 470 U. S.
315 -316 ("This breach may have been the result of
confusion as to whether the brief exchange qualified as custodial interrogation,' or it may simply have reflected
Burke's reluctance to initiate an alarming police procedure before
McAllister had spoken with respondent's mother"). Finally, the
Court makes its own finding that the failure to give Miranda warnings was an "oversight." Ante at 470 U. S.
316 . [ Footnote 3/3 ] Ante at 470 U. S. 309 ("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"); ante at 470 U. S. 311 (" voluntary unwarned admissions") (emphasis in original); ante at 470 U. S. 312 ("When neither the initial nor the subsequent admission is
coerced"); ante at 470 U. S. 314 ("absent deliberately coercive or improper tactics in obtaining the
initial statement").

															[ Footnote 3/4 ] Ante at 470 U. S. 304 (rejecting contention that "a failure to administer Miranda warnings necessarily breeds the same consequences
as police infringement of a constitutional right"); ante at 470 U. S. 305 ("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"); ante at 470 U. S. 306 ("[A] procedural Miranda violation differs in significant
respects from violations of the Fourth Amendment"); ibid. ("The Miranda exclusionary rule, however, serves the Fifth
Amendment and sweeps more broadly than the Fifth Amendment
itself"); ante at 470 U. S. 318 ("[T]here is no warrant for presuming
coercive effect where the suspect's initial inculpatory statement,
though technically in violation of Miranda, was
voluntary"). [ Footnote 3/5 ] See, e.g., People v. La Frana, 4 Ill. 2d
261 , 268, 122 N.E.2d
583 , 586-587 (1954); cf. People v.
Nemke, 23 Ill. 2d
591 , 601, 179 N.E.2d
825 , 830 (1962).

															[ Footnote 3/6 ]

															384 U.S. at 384 U. S.
444 -445

															[ Footnote 3/7 ] Id. at 384 U. S. 444 ("[T]he prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective
to secure the privilege against self-incrimination"); id. at 384 U. S.
467 -469.

															[ Footnote 3/8 ] Id. at 384 U. S. 445 , 384 U. S. 448 , 384 U. S.
457 -458 ("Unless adequate protective devices are
employed to dispel the compulsion inherent in custodial
surroundings, no statement obtained from the defendant can truly be
the product of his free choice") .

															[ Footnote 3/9 ]

															In 1964, the Court held that the

															"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." Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 8 . Two
years later, in Miranda v. Arizona, 384 U.
S. 436 (1966), the Court held that the State of Arizona
had deprived Miranda of his liberty without due process of law
because his conviction was based on a confession that had been
obtained in violation of his Fifth Amendment privilege against
self-incrimination. Obviously, the Court's power to reverse
Miranda's conviction rested entirely on the determination that a
violation of the Federal Constitution had occurred.

															The constitutional violation was established without any
evidence that the police actually coerced Miranda in any way. Id. at 384 U. S. 445 , 384 U. S.
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 384 U. S. 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 384 U. S. 457 . See also id. at 384 U. S. 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 384 U. S.
477 .

															[ Footnote 3/10 ]

															Of course, in Orozco v. Texas, 394 U.
S. 324 (1969), this Court rejected the contention that Miranda warnings were inapplicable because a defendant
"was interrogated on his own bed, in familiar surroundings." Id. at 394 U. S.
326 -327.

															[ Footnote 3/11 ] Miranda v. Arizona, 384 U.S. at 384 U. S. 468 ; New York v. Quarles, 467 U. S. 649 , 467 U. S. 664 (1984) (O'CONNOR, J., concurring in part in judgment and dissenting
in part) ("When police ask custodial questions without
administering the required warnings, Miranda quite clearly
requires that the answers received be presumed compelled, and that
they be excluded from evidence at trial"); Orozco v.
Texas, 394 U.S. at 394 U. S. 324 .

															[ Footnote 3/12 ] Ante at 470 U. S. 312 ; see also ante at 470 U. S. 314 ("We must conclude that, absent deliberately coercive or improper
tactics in obtaining the initial statement, the mere fact that a
suspect has made an unwarned admission does not warrant a
presumption of compulsion").

															[ Footnote 3/13 ]

															In view of the Court's holding, it is not necessary to consider
how that additional burden should be discharged in all cases. In
general, however, I should think that, before the second session of
custodial interrogation begins, the prisoner should be advised that
his earlier statement is, or may be, inadmissible. I am not
persuaded that the Miranda rule is so "murky," ante at 470 U. S. 316 ,
that the law enforcement profession would be unable to identify the
cases in which a supplementary warning would be appropriate. Miranda was written, in part, "to give concrete
constitutional guidelines for law enforcement agencies and courts
to follow." 384 U.S. at 384 U. S.
441 -442; id. at 384 U. S. 468 (noting that the "Fifth Amendment privilege is so
fundamental to our system of constitutional rule and the
expedient of giving an adequate warning as to the availability of
the privilege so simple ") (emphasis added). Nearly two
decades after that disposition, it is undisputed that the Miranda rule -- now so deeply embedded in our culture that
most schoolchildren know not only the warnings, but also when they
are required -- has given that clarity. See New York v.
Quarles, 467 U.S. at 467 U. S. 660 (O'CONNOR, J., concurring in part in judgment and dissenting in
part) (noting Miranda's "now clear strictures"); Rhode
Island v. Innis, 446 U. S. 291 , 446 U. S. 304 (1980) (BURGER, C.J., concurring in judgment) (the "meaning of Miranda has become reasonably clear and law enforcement
practices have adjusted to its strictures"); Fare v. Michael
C., 442 U. S. 707 , 442 U. S. 717 (1979) ("The rule the Court established in Miranda is
clear"); Stephens, Flanders, & Cannon, Law Enforcement and the
Supreme Court: Police Perceptions of the Miranda Requirements, 39 Tenn.L.Rev. 407, 431 (1972). At the same time, it
has ensured the right to be free from self-incrimination that the
Constitution guarantees to all. Moreover, many professionals are
convinced that, rather than hampering law enforcement, the Miranda rule has helped law enforcement efforts. See Jacobs, The State of Miranda, Trial 45
(Jan.1985) ("[I]ncreased professionalism of police . . . has
resulted from the challenging combination of Miranda and Gideon v. Wainwright, [and] has benefited both police and
prosecutors in preparing good cases"). Nevertheless, the Court
today blurs Miranda's clear guidelines. The author of
today's opinion -- less than one Term ago -- summarized precisely
my feelings about the Court's disposition today:

															" Miranda is now the law, and, in my view, the Court has
not provided sufficient justification for departing from it or for
blurring its now clear strictures." New York v. Quarles, 467 U.S. at 467 U. S. 660 (O'CONNOR, J., concurring in part in judgment and dissenting in
part).

															[ Footnote 3/14 ] See 470
U.S. 298 fn3/4|>n. 4, supra. Indeed, the Court's
holding rests on its view that there were no "improper tactics in
obtaining the initial statement." See ante at 470 U. S.
314 .

															[ Footnote 3/15 ]

															At least that is my view. In response to this dissent, however,
the Court has added a footnote, ante at 306-307, n 1, implying that, whenever the Court
commands exclusion of a presumptively coerced confession, it is
standing -- not on a constitutional predicate but merely on its own
shoulders.

															[ Footnote 3/16 ]

															The Miranda Court explicitly recognized the contrary
when it stated that

															"our holding is not an innovation in our jurisprudence, but is
an application of principles long recognized and applied in other
settings."

															384 U.S. at 384 U. S. 442 . See also id. at 384 U. S. 445 ("The constitutional issue we decide in each of these cases is the
admissibility of statements obtained from a defendant questioned
while in custody or otherwise deprived of his freedom of action in
any significant way"); id. at 384 U. S.
460 -467.

															[ Footnote 3/17 ] See id. at 384 U. S.
458 -459; E. Cleary, McCormick on Evidence § 114 (2d
ed.1972); 8 J. Wigmore, Evidence § 2250 (McNaughton rev.
ed.1961).

															[ Footnote 3/18 ] See Burger, Who Will Watch the Watchman, 14 Am.U.L.Rev.
1, 14 (1964).

															[ Footnote 3/19 ] See, e.g., Leyra v. Denno, 347 U.
S. 556 (1954); Malinski v. New York, 324 U. S. 401 (1945); Ashcraft v. Tennessee, 322 U.
S. 143 (1944); Ward v. Texas, 316 U.
S. 547 (1942); Vernon v. Alabama, 313 U.S. 547
(1941); White v. Texas, 310 U. S. 530 (1940); Canty v. Alabama, 309 U.S. 629 (1940); Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U.
S. 278 (1936); Wakat v. Harlib, 253 F.2d 59
(CA7 1958); People v. La Frana, 4 Ill. 2d
261 , 122 N.E.2d
583 (1954); cf. People v. Portelli, 15 N.Y.2d 235, 205
N.E.2d 857 (1965) (potential witness tortured by police). Such
custodial interrogation is, of course, closer to that employed by
the Soviet Union than that which our constitutional scheme
tolerates. See Coleman v. Alabama, 399 U. S.
1 , 399 U. S. 15 -16
(1970) (opinion of Douglas, J.) ("In [Russia] detention incommunicado is the common practice, and the period of
permissible detention now extends for nine months. Where there is
custodial interrogation, it is clear that the critical stage of the
trial takes place long before the courtroom formalities commence.
That is apparent to one who attends criminal trials in Russia.
Those that I viewed never put in issue the question of guilt; guilt
was an issue resolved in the inner precincts of a prison under
questioning by the police").