OCTOBER TERM, 1993

															Syllabus

															DAVIS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS No. 92-1949. Argued March 29, 1994-Decided June 24, 1994 Petitioner, a member of the United States Navy, initially waived
his rights to remain silent and to counsel when he was interviewed
by Naval Investigative Service agents in connection with the murder
of a sailor. About an hour and a half into the interview, he said,
"Maybe I should talk to a lawyer." However, when the agents
inquired if he was asking for a lawyer, he replied that he was not.
They took a short break, he was reminded of his rights, and the
interview continued for another hour, until he asked to have a
lawyer present before saying anything more. A military judge denied
his motion to suppress statements made at the interview, holding
that his mention of a lawyer during the interrogation was not a
request for counsel. He was convicted of murder, and, ultimately,
the Court of Military Appeals affirmed.

															Held:

															1. After a knowing and voluntary waiver of rights under Miranda v. Arizona, 384 U. S. 436 , law
enforcement officers may continue questioning until and unless a
suspect clearly requests an attorney. A suspect is entitled to the
assistance of counsel during custodial interrogation even though
the Constitution does not provide for such assistance. Id., at 469-473. If the suspect invokes that right at any time, the
police must immediately cease questioning him until an attorney is
present. Edwards v. Arizona, 451 U. S. 477 , 484-485.
The Edwards rule serves the prophylactic purpose of
preventing officers from badgering a suspect into waiving his
previously asserted Miranda rights, and its applicability
requires courts to determine whether the accused actually invoked
his right to counsel. This is an objective inquiry, requiring some
statement that can reasonably be construed to be an expression of a
desire for an attorney's assistance. However, if a reference is
ambiguous or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be
invoking the right to counsel, Edwards does not require that
officers stop questioning the suspect. Extending Edwards to
create such a requirement would transform the Miranda safeguards into wholly irrational obstacles to legitimate
investigative activity by needlessly preventing the police from
questioning a suspect in the absence of an attorney, even if
the 453 suspect does not wish to have one present. The Edwards rule provides a bright line that can be applied by officers in the
real world ofinvestigation and interrogation without unduly
hampering the gathering of information. This clarity and ease of
application would be lost if officers were required to cease
questioning based on an ambiguous or equivocal reference to an
attorney, since they would be forced to make difficult judgment
calls about what the suspect wants, with the threat of suppression
if they guess wrong. While it will often be good police practice
for officers to clarify whether a suspect making an ambiguous
statement really wants an attorney, they are not required to ask
clarifying questions. Pp. 456-462.

															2. There is no reason to disturb the conclusion of the courts
below that petitioner's remark-"Maybe I should talk to a
lawyer"-was not a request for counsel. P. 462.

															36 M. J. 337, affirmed.

															O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined.
SCALIA, J., filed a concurring opinion, post, p. 462.
SOUTER, J., filed an opinion concurring in the judgment, in which
BLACKMUN, STEVENS, and GINSBURG, JJ., joined, post, p.
466. David S. Jonas argued the cause for petitioner.
With him on the briefs were Philip L. Sundel, Daniel S. Jonas, and David Rudovsky. Richard H. Seamon argued the cause for the United States. With
him on the briefs were Solicitor General Days, Assistant Attorney
General Harris, Deputy Solicitor General Bryson, Joel M.
Gershowitz, Theodore G. Hess, and Brett D. Barkey. *

															* Fred E. Inbau, Wayne W Schmidt, James P. Manak, Richard M.
Weintraub, William C. O'Malley, and Bernard J. Farber filed a brief
for Americans for Effective Law Enforcement, Inc., et al. as amici
curiae urging affirmance.

															Briefs of amici curiae were filed for the National
Association of Criminal Defense Lawyers by Janet E.
Ainsworth; and for the Washington Legal Foundation et al. by Paul G. Cassell, Daniel J. Popeo, and Paul
D. Kamenar. 454 JUSTICE O'CONNOR delivered the opinion of the Court.

															In Edwards v. Arizona, 451 U. S. 477 (1981), we
held that law enforcement officers must immediately cease
questioning a suspect who has clearly asserted his right to have
counsel present during custodial interrogation. In this case we
decide how law enforcement officers should respond when a suspect
makes a reference to counsel that is insufficiently clear to invoke
the Edwards prohibition on further questioning.

															I

															Pool brought trouble-not to River City, but to the Charleston
Naval Base. Petitioner, a member of the United States Navy, spent
the evening of October 2, 1988, shooting pool at a club on the
base. Another sailor, Keith Shackleton, lost a game and a $30 wager
to petitioner, but Shackleton refused to pay. After the club
closed, Shackleton was beaten to death with a pool cue on a loading
dock behind the commissary. The body was found early the next
morning.

															The investigation by the Naval Investigative Service (NIS)
gradually focused on petitioner. Investigative agents determined
that petitioner was at the club that evening, and that he was
absent without authorization from his duty station the next
morning. The agents also learned that only privately owned pool
cues could be removed from the club premises, and that petitioner
owned two cues-one of which had a bloodstain on it. The agents were
told by various people that petitioner either had admitted
committing the crime or had recounted details that clearly
indicated his involvement in the killing.

															On November 4, 1988, petitioner was interviewed at the NIS
office. As required by military law, the agents advised petitioner
that he was a suspect in the killing, that he was not required to
make a statement, that any statement could be used against him at a
trial by court-martial, and that he was entitled to speak with an
attorney and have an attorney present during questioning. See Art.
31, Uniform Code of 455 Military Justice (UCMJ), 10 U. s. C. § 831; Mil. Rule Evid. 305;
Manual for Courts-Martial A22-13 (1984). Petitioner waived his
rights to remain silent and to counsel, both orally and in
writing.

															About an hour and a half into the interview, petitioner said,
"Maybe I should talk to a lawyer." App. 135. According to the
uncontradicted testimony of one of the interviewing agents, the
interview then proceeded as follows: "[We m]ade it very clear that we're not here to violate his
rights, that if he wants a lawyer, then we will stop any kind of
questioning with him, that we weren't going to pursue the matter
unless we have it clarified is he asking for a lawyer or is he just
making a comment about a lawyer, and he said, [']No, I'm not asking
for a lawyer,' and then he continued on, and said, 'No, I don't
want a lawyer.'" Id., at 136. After a short break, the agents reminded petitioner of his
rights to remain silent and to counsel. The interview then
continued for another hour, until petitioner said, "I think I want
a lawyer before I say anything else." Id., at 137. At that
point, questioning ceased.

															At his general court-martial, petitioner moved to suppress
statements made during the November 4 interview. The Military Judge
denied the motion, holding that "the mention of a lawyer by
[petitioner] during the course of the interrogation [was] not in
the form of a request for counsel and ... the agents properly
determined that [petitioner] was not indicating a desire for or
invoking his right to counseL" Id., at 164. Petitioner was
convicted on one specification of unpremeditated murder, in
violation of Art. 118, UCMJ, 10 U. s. C. § 918. He was sentenced to
confinement for life, a dishonorable discharge, forfeiture of all
pay and allowances, and a reduction to the lowest pay grade. The
convening authority approved the findings and sentence. The
Navy- 456 Marine Corps Court of Military Review affirmed. App. to Pet. for
Cert. 12a-15a.

															The United States Court of Military Appeals granted
discretionary review and affirmed. 36 M. J. 337 (1993). The court
recognized that the state and federal courts have developed three
different approaches to a suspect's ambiguous or equivocal request
for counsel: "Some jurisdictions have held that any mention of counsel,
however ambiguous, is sufficient to require that all questioning
cease. Others have attempted to define a threshold standard of
clarity for invoking the right to counsel and have held that
comments falling short of the threshold do not invoke the right to
counsel. Some jurisdictions ... have held that all interrogation
about the offense must immediately cease whenever a suspect
mentions counsel, but they allow interrogators to ask narrow
questions designed to clarify the earlier statement and the
[suspect's] desires respecting counsel." Id., at 341
(internal quotation marks omitted). Applying the third approach, the court held that petitioner's
comment was ambiguous, and that the NIS agents properly clarified
petitioner's wishes with respect to counsel before continuing
questioning him about the offense. Id., at 341-342.

															Although we have twice previously noted the varying approaches
the lower courts have adopted with respect to ambiguous or
equivocal references to counsel during custodial interrogation, see Connecticut v. Barrett, 479 U. S. 523 , 529530, n.
3 (1987); Smith v. Illinois, 469 U. S. 91 , 96, n. 3
(1984) (per curiam), we have not addressed the issue on the
merits. We granted certiorari, 510 U. S. 942 (1993), to do so.

															II

															The Sixth Amendment right to counsel attaches only at the
initiation of adversary criminal proceedings, see United 457 States v. Gouveia, 467 U. S. 180 , 188
(1984), and before proceedings are initiated a suspect in a
criminal investigation has no constitutional right to the
assistance of counsel. Nevertheless, we held in Miranda v. Arizona, 384
U. S. 436 , 469-473 (1966), that a suspect subject to custodial
interrogation has the right to consult with an attorney and to have
counsel present during questioning, and that the police must
explain this right to him before questioning begins. The right to
counsel established in Miranda was one of a "series of
recommended 'procedural safeguards' ... [that] were not themselves
rights protected by the Constitution but were instead measures to
insure that the right against compulsory self-incrimination was
protected." Michigan v. Tucker, 417 U. S. 433 , 443-444
(1974); see U. S. Const., Arndt. 5 ("No person ... shall be
compelled in any criminal case to be a witness against himself").
*

															*We have never had occasion to consider whether the Fifth
Amendment privilege against self-incrimination, or the attendant
right to counsel during custodial interrogation, applies of its own
force to the military, and we need not do so here. The President,
exercising his authority to prescribe procedures for military
criminal proceedings, see Art. 36(a), UCMJ, 10 U. S. C. § 836(a),
has decreed that statements obtained in violation of the
Self-Incrimination Clause are generally not admissible at trials by
courtmartial. Mil. Rules Evid. 304(a) and (c)(3). Because the Court
of Military Appeals has held that our cases construing the Fifth
Amendment right to counsel apply to military interrogations and
control the admissibility of evidence at trials by court-martial,
see, e. g., United States v. McLaren, 38 M. J. 112,
115 (1993); United States v. Applewhite, 23 M. J.
196, 198 (1987), and the parties do not contest this point, we
proceed on the assumption that our precedents apply to
courts-martial just as they apply to state and federal criminal
prosecutions.

															We also note that the Government has not sought to rely in this
case on 18 U. S. C. § 3501, "the statute governing the
admissibility of confessions in federal prosecutions," United
States v. Alvarez-Sanchez, 511 U. S. 350 , 351
(1994), and we therefore decline the invitation of some amici to consider it. See Brief for Washington Legal
Foundation et al. as Amici Curiae 7-14. Although we will
consider arguments raised only in an amicus brief, see Teague v. Lane, 489 U. S. 288 , 300 (1989)
(plurality opinion), we are reluctant to do so when the issue is
one of first impression involving 458 The right to counsel recognized in Miranda is
sufficiently important to suspects in criminal investigations, we
have held, that it "requir[es] the special protection of the
knowing and intelligent waiver standard." Edwards v. Arizona, 451 U. S., at 483. See Oregon v. Bradshaw, 462
U. S. 1039 , 10461047 (1983) (plurality opinion); id., at 1051
(Powell, J., concurring in judgment). If the suspect effectively
waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. North Carolina v. Butler, 441 U. S. 369 , 372-376
(1979). But if a suspect requests counsel at any time during the
interview, he is not subject to further questioning until a lawyer
has been made available or the suspect himself reinitiates
conversation. Edwards v. Arizona, supra, at 484-485.
This "second layer of prophylaxis for the Miranda right to
counsel," McNeil v. Wisconsin, 501 U. S. 171 , 176
(1991), is "designed to prevent police from badgering a defendant
into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U. S. 344 , 350
(1990). To that end, we have held that a suspect who has invoked
the right to counsel cannot be questioned regarding any offense
unless an attorney is actually present. Minnick v. Mississippi, 498 U. S. 146 (1990);
Arizona v. Roberson, 486 U. S. 675 (1988). "It
remains clear, however, that this prohibition on further
questioning-like other aspects of Miranda-is not itself
required by the Fifth Amendment's prohibition on coerced
confessions, but is instead justified only by reference to its
prophylactic purpose." Connecticut v. Barrett, supra, at 528.

															The applicability of the "'rigid' prophylactic rule" of Ed wards requires courts to "determine whether the accused actually invoked his right to counsel." Smith v. Illinois, supra, at 95 (emphasis added), quoting Fare v. Michael c., 442 U. S. 707 , 719
(1979). To avoid difficulties of proof and to

															the interpretation of a federal statute on which the Department
of Justice expressly declines to take a position. See Tr. of Oral
Arg. 44-47. 459 provide guidance to officers conducting interrogations, this is
an objective inquiry. See Connecticut v. Barrett,
supra, at 529. Invocation of the Miranda right to
counsel "requires, at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the assistance of
an attorney." McNeil v. Wisconsin, 501 U. S., at 178.
But if a suspect makes a reference to an attorney that is ambiguous
or equivocal in that a reasonable officer in light of the
circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do
not require the cessation of questioning. See ibid. ("[T]he likelihood that a suspect would wish counsel to be present
is not the test for applicability of Edwards"); Edwards v. Arizona, supra, at 485 (impermissible for authorities "to
reinterrogate an accused in custody if he has clearly
asserted his right to counsel") (emphasis added).

															Rather, the suspect must unambiguously request counsel.

															As we have observed, "a statement either is such an assertion of
the right to counselor it is not." Smith v. Illinois, 469 U. S., at 97-98 (brackets and internal quotation marks
omitted). Although a suspect need not "speak with the
discrimination of an Oxford don," post, at 476 (SOUTER, J.,
concurring in judgment), he must articulate his desire to have
counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a
request for an attorney. If the statement fails to meet the
requisite level of clarity, Edwards does not require that
the officers stop questioning the suspect. See Moran v. Burbine, 475
U. S. 412 , 433, n. 4 (1986) ("[T]he interrogation must cease
until an attorney is present only [i]f the individual states
that he wants an attorney") (citations and internal quotation marks
omitted).

															We decline petitioner's invitation to extend Edwards and
require law enforcement officers to cease questioning immediately
upon the making of an ambiguous or equivocal reference to an
attorney. See Arizona v. Roberson, supra, at 688 460 (KENNEDY, J., dissenting) ("[T]he rule of Edwards is our
rule, not a constitutional command; and it is our obligation to
justify its expansion"). The rationale underlying Ed wards is
that the police must respect a suspect's wishes regarding his right
to have an attorney present during custodial interrogation. But
when the officers conducting the questioning reasonably do not know
whether or not the suspect wants a lawyer, a rule requiring the
immediate cessation of questioning "would transform the Miranda safeguards into wholly irrational obstacles to
legitimate police investigative activity," Michigan v. Mosley, 423 U.
S. 96 , 102 (1975), because it would needlessly prevent the
police from questioning a suspect in the absence of counsel even if
the suspect did not wish to have a lawyer present. Nothing in Edwards requires the provision of counsel to a suspect who
consents to answer questions without the assistance of a lawyer. In Miranda itself, we expressly rejected the suggestion "that
each police station must have a 'station house lawyer' present at
all times to advise prisoners," 384 U. S., at 474, and held instead
that a suspect must be told of his right to have an attorney
present and that he may not be questioned after invoking his right
to counsel. We also noted that if a suspect is "indecisive in his
request for counsel," the officers need not always cease
questioning. See id., at 485.

															We recognize that requiring a clear assertion of the right to
counsel might disadvantage some suspects who-because of fear,
intimidation, lack of linguistic skills, or a variety of other
reasons-will not clearly articulate their right to counsel although
they actually want to have a lawyer present. But the primary
protection afforded suspects subject to custodial interrogation is
the Miranda warnings themselves. "[F]ull comprehension of
the rights to remain silent and request an attorney [is] sufficient
to dispel whatever coercion is inherent in the interrogation
process." Moran v. Burbine, supra, at 427. A suspect
who knowingly and voluntarily waives his right to counsel after
having that right explained 461 to him has indicated his willingness to deal with the police
unassisted. Although Edwards provides an additional
protection-if a suspect subsequently requests an attorney,
questioning must cease-it is one that must be affirmatively invoked
by the suspect.

															In considering how a suspect must invoke the right to counsel,
we must consider the other side of the Miranda equation: the
need for effective law enforcement. Although the courts ensure
compliance with the Miranda requirements through the
exclusionary rule, it is police officers who must actually decide
whether or not they can question a suspect. The Edwards rule-questioning must cease if the suspect asks for a
lawyer-provides a bright line that can be applied by officers in
the real world of investigation and interrogation without unduly
hampering the gathering of information. But if we were to require
questioning to cease if a suspect makes a statement that might be a
request for an attorney, this clarity and ease of application would
be lost. Police officers would be forced to make difficult judgment
calls about whether the suspect in fact wants a lawyer even though
he has not said so, with the threat of suppression if they guess
wrong. We therefore hold that, after a knowing and voluntary waiver
of the Miranda rights, law enforcement officers may continue
questioning until and unless the suspect clearly requests an
attorney.

															Of course, when a suspect makes an ambiguous or equivocal
statement it will often be good police practice for the
interviewing officers to clarify whether or not he actually wants
an attorney. That was the procedure followed by the NIB agents in
this case. Clarifying questions help protect the rights of the
suspect by ensuring that he gets an attorney if he wants one, and
will minimize the chance of a confession being suppressed due to
subsequent judicial secondguessing as to the meaning of the
suspect's statement regarding counsel. But we decline to adopt a
rule requiring officers to ask clarifying questions. If the
suspect's state- 462 ment is not an unambiguous or unequivocal request for counsel,
the officers have no obligation to stop questioning him.

															To recapitulate: We held in Miranda that a suspect is
entitled to the assistance of counsel during custodial
interrogation even though the Constitution does not provide for
such assistance. We held in Edwards that if the suspect
invokes the right to counsel at any time, the police must
immediately cease questioning him until an attorney is present. But
we are unwilling to create a third layer of prophylaxis to prevent
police questioning when the suspect might want a lawyer.
Unless the suspect actually requests an attorney, questioning may
continue.

															The courts below found that petitioner's remark to the NIS
agents-"Maybe I should talk to a lawyer"-was not a request for
counsel, and we see no reason to disturb that conclusion. The NIS
agents therefore were not required to stop questioning petitioner,
though it was entirely proper for them to clarify whether
petitioner in fact wanted a lawyer. Because there is no ground for
suppression of petitioner's statements, the judgment of the Court
of Military Appeals is

															Affirmed.

															JUSTICE SCALIA, concurring.

															Section 3501 of Title 18 of the United States Code is "the
statute governing the admissibility of confessions in federal
prosecutions." United States v. Alvarez-Sanchez, 511 U. S. 350 ,
351 (1994). That provision declares that "a confession ... shall
be admissible in evidence if it is voluntarily given," and that
the issue of voluntariness shall be determined on the basis of "all the circumstances surrounding the giving of the
confession, including whether or not [the] defendant was
advised or knew that he was not required to make any statement ...
[;] ... whether or not [the] defendant had been advised prior to
questioning of his right to the assistance of counsel; and ...
whether or not [the] defendant was without the assistance of
counsel when questioned .... " 463 §§ 3501(a), (b) (emphases added). It continues (lest the import
be doubtful): "The presence or absence of any of the
above-mentioned factors ... need not be conclusive on the issue of
voluntariness of the confession." § 3501(b). Legal analysis of the
admissibility of a confession without reference to these provisions
is equivalent to legal analysis of the admissibility of hearsay
without consulting the Rules of Evidence; it is an unreal exercise.
Yet as the Court observes, see ante, at 457-458, n., that is
precisely what the United States has undertaken in this case. It
did not raise § 3501(a) below and asserted that it is "not at
issue" here, Brief for United States 18, n. 13.*

															This is not the first case in which the United States has
declined to invoke § 3501 before us-nor even the first case in
which that failure has been called to its attention. See Tr. of
Oral Arg. in United States v. Green, O. T. 1992, No.
91-1521, pp. 18-21. In fact, with limited exceptions the

															*The United States makes the unusually self-denying assertion
that the provision "in any event would appear not to be applicable
in court-martial cases" since (1) court-martial cases are not
"'criminal prosecutions'" within the meaning of the Sixth Amendment
and "therefore would not appear to be 'criminal prosecution[s]' for
purposes of Section 3501(a)," and (2) courts-martial are governed
by Article 31 of the Uniform Code of Military Justice, 10 U. S. C.
§ 831, and Rules 304 and 305 of the Military Rules of Evidence. The
first point seems to me questionable: The meaning of terms in
statutes does not necessarily parallel their meaning in the
Constitution. Moreover, even accepting the premise that § 3501 does
not apply to courts-martial directly, it does apply indirectly,
through Rule 101(b)(1) of the Military Rules of Evidence, which
requires courts-martial to apply "the rules of evidence generally
recognized in the trial of criminal cases in the United States
district courts." As for the second point: The cited provisions of
the Uniform Code and the Military Rules may (though I doubt it) be
independent reasons why the confession here should be excluded, but
they cannot possibly be reasons why § 3501 does not prevent Miranda v. Arizona, 384 U. S. 436 (1966),
from being a basis for excluding them, which is the issue before
us. In any event, the Court today bases its refusal to consider §
3501 not upon the fact that the provision is inapplicable, but upon
the fact that the Government failed to argue it-and it is that refusal which my present statement addresses. 464 provision has been studiously avoided by every Administration,
not only in this Court but in the lower courts, since its enactment
more than 25 years ago. See Office of Legal Policy, U. S. Dept. of
Justice, Report to Attorney General on Law of Pre-Trial
Interrogation 72-73 (1986) (discussing "[t]he abortive
implementation of § 3501" after its passage in 1968).

															I agree with the Court that it is proper, given the
Government's failure to raise the point, to render judgment without
taking account of § 3501. But the refusal to consider arguments not
raised is a sound prudential practice, rather than a statutory or
constitutional mandate, and there are times when prudence dictates
the contrary. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 , 445-448
(1993) (proper for Court of Appeals to consider whether an
allegedly controlling statute had been repealed, despite parties'
failure, upon invitation, to assert the point). As far as I am
concerned, such a time will have arrived when a case that comes
within the terms of this statute is next presented to us.

															For most of this century, voluntariness vel non was the
touchstone of admissibility of confessions. See Miranda v. Arizona, 384
U. S. 436 , 506-507 (1966) (Harlan, J., dissenting). Section
3501 of Title 18 seems to provide for that standard in
federal criminal prosecutions today. I say "seems" because I do not
wish to prejudge any issue of law. I am entirely open to the
argument that § 3501 does not mean what it appears to say; that it
is inapplicable for some other reason; or even that it is
unconstitutional. But I will no longer be open to the argument that
this Court should continue to ignore the commands of § 3501 simply
because the Executive declines to insist that we observe them.

															The Executive has the power (whether or not it has the right)
effectively to nullify some provisions of law by the mere failure
to prosecute-the exercise of so-called prosecutorial discretion.
And it has the power (whether or not it 465 has the right) to avoid application of § 3501 by simply
declining to introduce into evidence confessions admissible under
its terms. But once a prosecution has been commenced and a
confession introduced, the Executive assuredly has neither the
power nor the right to determine what objections to admissibility
of the confession are valid in law. Section § 3501 of Title 18 is a
provision of law directed to the courts, reflecting the
people's assessment of the proper balance to be struck between
concern for persons interrogated in custody and the needs of
effective law enforcement. We shirk our duty if we systematically
disregard that statutory command simply because the Justice
Department systematically declines to remind us of it.

															The United States' repeated refusal to invoke § 3501, combined
with the courts' traditional (albeit merely prudential) refusal to
consider arguments not raised, has caused the federal judiciary to
confront a host of "Miranda" issues that might be entirely
irrelevant under federal law. See, e. g., in addition to the
present case, United States v. Green, 507 U. S. 545 (1993)
(dism'g cert. as moot); United States v. Griffin, 922 F.2d
1343 (CA8 1990); United States v. Vazquez, 857 F.2d
857 (CA1 1988); United States v. Scalf, 725 F.2d
1272 (CAlO 1984). Worse still, it may have produced-during an
era of intense national concern about the problem of runaway
crime-the acquittal and the nonprosecution of many dangerous
felons, enabling them to continue their depredations upon our
citizens. There is no excuse for this. Perhaps (though I do not
immediately see why) the Justice Department has good basis for
believing that allowing prosecutions to be defeated on grounds that
could be avoided by invocation of § 3501 is consistent with the
Executive's obligation to "take Care that the Laws be faithfully
executed," U. S. Const., Art. II, § 3. That is not the point. The
point is whether our continuing refusal to consider §
3501 is consistent with the Third Branch's obligation to decide
according to the law. I think it is not. 466 SOUTER, J., concurring in judgment

															JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JusTICE STEVENS, and
JUSTICE GINSBURG join, concurring in the judgment.

															In the midst of his questioning by naval investigators,
petitioner said "Maybe I should talk to a lawyer." The
investigators promptly stopped questioning Davis about the killing
of Keith Shackleton and instead undertook to determine whether he
meant to invoke his right to counsel, see Mi randa v. Arizona, 384
U. S. 436 (1966). According to testimony accepted by the courts
below, Davis answered the investigators' questions on that point by
saying, "I'm not asking for a lawyer," and "No, I don't want to
talk to a lawyer." Only then did the interrogation resume (stopping
for good when petitioner said, "I think I want a lawyer before I
say anything else").

															I agree with the majority that the Constitution does not forbid
law enforcement officers to pose questions (like those directed at
Davis) aimed solely at clarifying whether a suspect's ambiguous
reference to counsel was meant to assert his Fifth Amendment right.
Accordingly I concur in the judgment affirming Davis's conviction,
resting partly on evidence of statements given after agents
ascertained that he did not wish to deal with them through counsel.
I cannot, however, join in my colleagues' further conclusion that
if the investigators here had been so inclined, they were at
liberty to disregard Davis's reference to a lawyer entirely, in
accordance with a general rule that interrogators have no legal
obligation to discover what a custodial subject meant by an
ambiguous statement that could reasonably be understood to express
a desire to consult a lawyer.

															Our own precedent, the reasonable judgments of the majority of
the many courts already to have addressed the issue before US,l and
the advocacy of a considerable body of law

															1 See, e. g., United States v. Porter, 776 F.2d
370 (CA1 1985) (en bane); United States v. Gotay, 844 F.2d
971 , 975 (CA2 1988); Thompson v. Wainwright, 601 F.2d
768 , 771-772 (CA5 1979) (en bane); United States v. Fouche, 833 F.2d
1284 , 1287 (CA9 1987); United States v. March, 999 F. 2d 467 enforcement officials 2 are to the contrary. All argue against
the Court's approach today, which draws a sharp line between
interrogated suspects who "clearly" assert their right to counsel, ante, at 461, and those who say something that may, but may
not, express a desire for counsel's presence, the former suspects
being assured that questioning will not resume without counsel
present, see Miranda, supra, at 474, Edwards v. Arizona, 451
U. S. 477 , 484-485 (1981); Minnick v. Mississippi, 498 U. S. 146 (1990), the
latter being left to fend for themselves. The concerns of fairness
and practicality that have long anchored our Miranda case
law point to a different response: when law enforcement officials
"reasonably do not know whether or not the suspect wants a lawyer," ante, at 460, they should stop their interrogation and ask
him to make his choice clear.

															I A

															While the question we address today is an open one,3 its answer
requires coherence with nearly three decades of case

															456, 461-462 (CAlO 1993); United States v. Mendoza-Cecelia, 963 F.2d
1467 , 1472 (CAll 1992); see also Howard v. Pung, 862 F.2d
1348 (CA8 1988). The weight of state-court authority is
similarly lopsided, see, e. g., People v. Benjamin, 732 P. 2d 1167, 1171 (Colo. 1987); Crawford v. State, 580 A. 2d 571, 576-577 (Del. 1990); Martinez v. State, 564 So. 2d 1071, 1074 (Fla. 1990); State v. Robinson, 427 N. W. 2d 217, 223 (Minn.
1988).

															2 See Brief for Americans for Effective Law Enforcement, Inc.,
International Association of Chiefs of Police, Inc., National
District Attorneys Association, and National Sheriffs' Association
as Amici Curiae 5 (The approach advocated here "is a common
sense resolution of the problem. It fully accommodates the rights
of the subject, while at the same time preserv[ing] the interests
of law enforcement and of the public welfare"); see also Brief for
United States 20 (approach taken by the Court does not "fulfill the
fundamental purpose of Miranda") (internal quotation marks
omitted).

															3 The majority acknowledges, ante, at 456, that we have
declined (despite the persistence of divergent approaches in the
lower courts) to decide the operative rule for such ambiguous
statements, see, e. g., Connecticut v. Barrett, 479 U. S.
523 ,529, n. 3 (1987); Mueller v. Virginia, 507 U.
S. 1043 468 SOUTER, J., concurring in judgment

															law addressing the relationship between police and criminal
suspects in custodial interrogation. Throughout that period, two
precepts have commanded broad assent: that the

															(1993) (White, J., dissenting from denial of certiorari), but
then suggests that the conclusion it reaches was foreshadowed by McNeil v. Wisconsin, 501 U. S. 171 (1991),
where we noted that the "likelihood that a suspect would
wish counsel to be present" was not dispositive, id., at 178. But
we were not addressing the degree of clarity required to activate
the counsel right (let alone endorsing the standard embraced
today), as is evident from the very page of McNeil cited,
where we were careful to say only that the Miranda counsel
right "requires, at a minimum, some statement that can reasonably
be construed to be an expression of a desire for the assistance of
an attorney." 501 U. S., at 178. McNeil instead made the
different and familiar point that courts may not presume that a
silent defendant "would" want a lawyer whenever circumstances
suggest that representation "would" be in his interest.

															Nor may this case be disposed of by italicizing the words of Edwards v. Arizona, 451 U. S. 477 , 485
(1981), to the effect that when a suspect "clearly assert[s]" his
right, questioning must cease. See ante, at 459. Even
putting aside that the particular statement in that case was not
entirely clear (the highest court to address the question described
it as "equivocal," see State v. Edwards, 122 Ariz.
206, 211, 594 P. 2d 72, 77 (1979); see also 451 U. S., at 480, n.
6), Edwards no more decided the legal consequences of a less
than "clear" statement than Miranda, by saying that explicit
waivers are sufficient, 384 U. S., at 475, settled whether they are
necessary. See North Carolina v. Butler, 441 U. S. 369 , 373 (1979)
(holding they are not). Were it otherwise, there would have been no
reason after Edwards to identify the issue as unresolved,
but see Barrett, supra; Smith v. Illinois, 469 U. S. 91 , 95-96 (1984) (per curiam). Nor, finally, is it plausible to read Miranda itself as a
presage of the Court's rule, on account of language suggesting that
questioning need not stop when a request for counsel is
"'indecisive.''' Ante, at 460 (quoting Miranda, 384
U. S., at 485). The statement quoted, however, is not taken from
the Court's holding, but rather from a lengthy direct quotation of
a letter to the Court from the Solicitor General, purporting to
summarize then-current FBI practice (which the Court observed was
"consistent," id., at 484, with the rule announced). In any event,
the letter further explains that, under the FBI policy, the
"indecisive" suspect may be "question[ed] on whether he did or did
not waive counsel," id., at 485, an approach closer to the one
advocated here than to the one the Court adopts. 469 Miranda safeguards exist" 'to assure that the
individual's right to choose between speech and silence remains
unfettered throughout the interrogation process,'" see Connecticut v. Barrett, 479 U. S. 523 , 528 (1987)
(quoting Miranda, 384 U. S., at 469, and supplying
emphasis), and that the justification for Miranda rules,
intended to operate in the real world, "must be consistent with ...
practical realities," Ari zona v. Roberson, 486 U. S. 675 , 688 (1988)
(KENNEDY, J., dissenting). A rule barring government agents from
further interrogation until they determine whether a suspect's
ambiguous statement was meant as a request for counsel fulfills
both ambitions. It assures that a suspect's choice whether or not
to deal with police through counsel will be "scrupulously honored," Miranda, supra, at 479; cf. Michigan v. Mosley, 423 U.
S. 96 ,110, n. 2 (1975) (White, J., concurring in result), and
it faces both the real-world reasons why misunderstandings arise
between suspect and interrogator and the real-world limitations on
the capacity of police and trial courts to apply fine distinctions
and intricate rules.

															B

															Tested against the same two principles, the approach the Court
adopts does not fare so well. First, as the majority expressly
acknowledges, see ante, at 460, criminal suspects who may
(in Miranda's words) be "thrust into an unfamiliar
atmosphere and run through menacing police interrogation
procedures," 384 U. S., at 457, would seem an odd group to single
out for the Court's demand of heightened linguistic care. A
substantial percentage of them lack anything like a confident
command of the English language, see, e. g., United States v. De la Jara, 973 F.2d
746 , 750 (CA9 1992); many are "woefully ignorant," Miranda,
supra, at 468; cf. Davis v. North Carolina, 384 U. S. 737 ,
742 (1966); and many more will be sufficiently intimidated by the
interrogation process or overwhelmed by the uncertainty of their
predicament that 470 SOUTER, J., concurring in judgment

															the ability to speak assertively will abandon them.4 Indeed, the
awareness of just these realities has, in the past, dissuaded the
Court from placing any burden of clarity upon individuals in
custody, but has led it instead to require that requests for
counsel be "give[n] a broad, rather than a narrow, interpretation,"
see Michigan v. Jackson, 475 U. S. 625 , 633
(1986); Barrett, supra, at 529, and that courts "indulge
every reasonable presumption," Johnson v. Zerbst, 304 U. S. 458 ,
464 (1938) (internal quotation marks omitted), that a suspect has
not waived his right to counsel under Miranda, see, e.
g., Oregon v. Bradshaw, 462 U. S. 1039 , 1051
(1983) (Powell, J., concurring) ("We are unanimous in agreeing ...
that the [Miranda] right to counsel is a prime example of
those rights requiring the special protection of the knowing and
intelligent waiver standard") (internal quotation marks and
brackets omitted); cf. Minnick, 498 U. S., at 160 (SCALIA,
J., dissenting) ("[WJe have adhered to the principle that nothing
less than the Zerbst standard" is appropriate for Miranda waivers).

															Nor may the standard governing waivers as expressed in these
statements be deflected away by drawing a distinction between
initial waivers of Miranda rights and subsequent

															4 Social science confirms what common sense would suggest, that
individuals who feel intimidated or powerless are more likely to
speak in equivocal or nonstandard terms when no ambiguity or
equivocation is meant. See W. O'Barr, Linguistic Evidence:
Language, Power, and Strategy in the Courtroom 61-71 (1982).
Suspects in police interrogation are strong candidates for these
effects. Even while resort by the police to the "third degree" has
abated since Miranda, the basic forms of psychological
pressure applied by police appear to have changed less. Compare, e. g., Miranda, supra, at 449 (" '[T]he principal
psychological factor contributing to a successful interrogation is privacy''') (quoting F. Inbau & J. Reid, Criminal
Interrogation and Confessions 1 (1962)), with F. Inbau, J. Reid,
& J. Buckley, Criminal Interrogation and Confessions 24 (3d ed.
1986) ("The principal psychological factor contributing to a
successful interrogation is privacy"). 471 decisions to reinvoke them, on the theory that so long as the
burden to demonstrate waiver rests on the government, it is only
fair to make the suspect shoulder a burden of showing a clear
subsequent assertion. Miranda itself discredited the
legitimacy of any such distinction. The opinion described the
object of the warning as being to assure "a continuous opportunity
to exercise [the right of silence]," 384 U. S., at 444; see also Moran v. Burbine, 475 U. S. 412 , 458 (1986)
(STEVENS, J., dissenting); accord, id., at 423, n. 1. "[C]ontinuous
opportunity" suggests an unvarying one, governed by a common
standard of effectiveness. The suggestion is confirmed by the very
first statement that follows, that "there can be no questioning" if
the suspect "indicates in any manner and at any stage of the
process that he wishes to consult with an attorney," Miranda, 384 U. S., at 444-445. "[A]t any stage" obviously
includes the stage after initial waiver and the commencement of
questioning, and "indicates in any manner" is a rule plainly in
tension with the indication "with a vengeance," see id., at 505
(Harlan, J., dissenting), that the Court would require for exercise
of the "continuous" right at some point after initial waiver.

															The Court defends as tolerable the certainty that some poorly
expressed requests for counsel will be disregarded on the ground
that Miranda warnings suffice to alleviate the inherent
coercion of the custodial interrogation. Ante, at 460. But,
"[a] once-stated warning, delivered by those who will conduct the
interrogation, cannot itself suffice" to "assure that the ... right
to choose between silence and speech remains unfettered throughout
the interrogation process," 384 U. S., at 469. Nor does the Court's
defense reflect a sound reading of the case it relies on, Moran v. Burbine, supra: "Beyond [the] duty to inform, Miranda requires that the
police respect the [suspect's] decision to exercise the rights
outlined in the warnings. 'If the individual indicates in any
manner, at any time prior to or during ques- 472 SOUTER, J., concurring in judgment tioning, that he wishes to remain silent, [or if he] states that
he wants an attorney, the interrogation must cease.'" 475 U. S., at
420 (quoting Miranda, supra, at 473-474). While Moran held that a subject's knowing and voluntary
waiver of the right to counsel is not undermined by the fact that
police prevented an unsummoned lawyer from making contact with him,
it contains no suggestion that Miranda affords as ready a
tolerance for police conduct frustrating the suspect's subjectively
held (if ambiguously expressed) desire for counsel. See 475 U. S.,
at 423 (contrasting Escobedo v. Illinois, 378 U. S. 478 , 481
(1964), where "police incorrectly told the suspect that his
lawyer 'didn't want to see him' "); see also Miranda, supra, at 468 (purpose of warnings is to "show the individual that his
interrogators are prepared to recognize his privilege should he
choose to exercise it").

															Indeed, it is easy, amidst the discussion of layers of
protection, to lose sight of a real risk in the majority's
approach, going close to the core of what the Court has held that
the Fifth Amendment provides. The experience of the timid or
verbally inept suspect (whose existence the Court acknowledges) may
not always closely follow that of the defendant in Edwards v. Arizona (whose purported waiver of his right to counsel,
made after having invoked the right, was held ineffective, lest
police be tempted to "badge[r]" others like him, see Michigan v. Harvey, 494 U. S. 344 , 350
(1990)). Indeed, it may be more like that of the defendant in Escobedo v. Illinois, supra, whose sense of dilemma
was heightened by his interrogators' denial of his requests to talk
to a lawyer. When a suspect understands his (expressed) wishes to
have been ignored (and by hypothesis, he has said something that an
objective listener could "reasonably," although not necessarily,
take to be a request), in contravention of the "rights" just read
to him by his interrogator, he may well 473 see further objection as futile and confession (true or not) as
the only way to end his interrogation.5

															Nor is it enough to say that a "'statement either is ... an
assertion of the right to counselor it is not.'" Ante, at
459 (quoting Smith v. Illinois, 469 U. S., at 97-98)
(omitting brackets and internal quotation marks). In Smith, we neither denied the possibility that a reference to counsel could
be ambiguous, see id., at 98; accord, id., at 101 (REHNQUIST, J.,
dissenting), nor suggested that particular statements should be
considered in isolation, id., at 98.6 While it might be fair to say
that every statement is meant either to express a desire to deal
with police through counselor not, this fact does not dictate the
rule that interrogators who hear a statement consistent with either
possibility may presume the latter and forge ahead; on the
contrary, clarification is the intuitively sensible course.

															The other justifications offered for the "requisite level of
clarity" rule, ante, at 459, are that, whatever its costs,
it will further society's strong interest in "effective law
enforcement," ante, at 461, and maintain the "ease of
application,"

															5 See People v. Harper, 94 Ill. App. 3d 298, 300,
418 N. E. 2d 894, 896 (1981) (defendant who asked interrogator to
retrieve an attorney's business card from his wallet but was told
that it "'wouldn't be necessary'" held not to have "availed
himself" of right to counsel); see also Cooper v. Dupnik, 963 F.2d
1220 , 1225 (CA9 1992) (en banc) (describing elaborate
police Task Force plan to ignore systematically a suspect's
requests for counsel, on the theory that such would induce
hopelessness and thereby elicit an admission, which would then be
used to keep the suspect off the witness stand, see Oregon v. Hass, 420
U. S. 714 (1975) (statements obtained in violation of Miranda rules admissible for impeachment purposes)).

															6 Indeed, our Smith decision was quoting from the dissent
below, which adverts in the same sentence to the possibility of "bona fide doubt the officer may still have as to whether
the defendant desires counsel," in which case "strictly" limited
questioning is prescribed. See People v. Smith, 102
Ill. 2d 365, 375, 466 N. E. 2d 236, 241 (1984) (opinion of Simon,
J.). 474 SOUTER, J., concurring in judgment ibid., that has long been a concern of our Miranda jurisprudence. With respect to the first point, the margin of
difference between the clarification approach advocated here and
the one the Court adopts is defined by the class of cases in which
a suspect, if asked, would make it plain that he meant to request
counsel (at which point questioning would cease). While these lost
confessions do extract a real price from society, it is one that Miranda itself determined should be borne. Cf. Brief for
Americans for Effective Law Enforcement, Inc., et al. as Amici
Curiae 5 (the clarification approach "preserves the interests
of law enforcement and of the public welfare"); Escobedo,
supra, at 490 ("No system worth preserving should have to fear that if an accused is permitted to consult with a
lawyer, he will become aware of, and exercise, [his constitutional]
rights").

															As for practical application, while every approach, including
the majority's, will involve some "difficult judgment calls," 7 the
rule argued for here would relieve the officer of

															7 In the abstract, nothing may seem more clear than a "clear
statement" rule, but in police stations and trial courts the
question, "how clear is clear?" is not so readily answered. When a
suspect says, "uh, yeah, I'd like to do that" after being told he
has a right to a lawyer, has he "clearly asserted" his right?
Compare Smith v. Illinois, 469 U. S., at 97
(statement was "'neither indecisive nor ambiguous''') (citation
omitted), with id., at 101 (REHNQUIST, J., dissenting)
(questioning clarity); see also Ore gon v. Bradshaw, 462 U. S. 1039 ,
1041-1042 (1983) (plurality opinion) ("I do want an attorney before
it goes very much further"); Edwards, 451 U. S., at 479
('''I want an attorney before making a deal"'); cf. n. 3, supra. Indeed, in this case, when Davis finally said, "I
think I want a lawyer before I say anything else," the agents
ceased questioning; but see People v. Kendricks, 121
Ill. App. 3d 442, 446, 459 N. E. 2d 1137, 1139 (1984) (agents need
not stop interrogation when suspect says, "'I think I might need a
lawyer' "); cf. People v. Santiago, 133 App. Div.
429, 430-431, 519 N. Y. S. 2d 413, 414-415 (1987) (" 'Will you
supply [a lawyer] now so that I may ask him should I continue with
this interview at this moment?''' held "not ... an unequivocal
invocation"). See generally Smith, supra, at 101 (REHNQUIST,
J., dissenting) (noting that statements are rarely "crystal-clear";
"differences between certainty and hesitancy may well 475 any responsibility for guessing "whether the suspect in fact
wants a lawyer even though he hasn't said so," ante, at 461.
To the contrary, it would assure that the "judgment call" will be
made by the party most competent to resolve the ambiguity, who our
case law has always assumed should make it: the individual
suspect.

															II

															Although I am convinced that the Court has taken the wrong path,
I am not persuaded by petitioner's contention that even ambiguous
statements require an end to all police questioning. I recognize
that the approach petitioner urges on us can claim some support
from our case law, most notably in the "indicates in any manner"
language of Miranda, and I do not deny that the rule I
endorse could be abused by "clarifying" questions that shade subtly
into illicitly badgering a suspect who wants counsel, but see Thompson v. Wainwright, 601 F.2d
768 , 771-772 (CA5 1979); cf. State v. Walkowiak, 183 Wis. 2d 478,515 N. W. 2d 863 (1994) (Abrahamson, J.,
concurring) (suggesting means properly to focus clarification
enquiry). But petitioner's proposal is not entirely in harmony with
all the major themes of Miranda case law, its virtues and
demerits being the reverse images of those that mark the Court's
rule. While it is plainly wrong, for example, to continue
interrogation when the suspect wants it to stop (and so indicates),
the strong bias in favor of individual choice may also be disserved
by stopping questioning when a suspect wants it to continue (but
where his statement might be understood otherwise), see Michigan v.

															turn on the inflection with which words are spoken, especially
where [a] statement is isolated from the statements surrounding
it").

															As a practical matter, of course, the primary arbiters of
"clarity" will be the interrogators themselves, who tend as well to
be courts' preferred source in determining the precise words a
suspect used. And when an inculpatory statement has been obtained
as a result of an unrecorded, incommunicado interrogation, these
officers rarely lose "swearing matches" against criminal defendants
at suppression hearings. 476 SOUTER, J., concurring in judgment Mosley, 423
U. S. 96 , 109 (1975) (White, J., concurring in result) ("[W]e
have ... rejected [the] paternalistic rule protecting a defendant
from his intelligent and voluntary decisions about his own criminal
case"). The costs to society of losing confessions would, moreover,
be especially hard to bear where the suspect, if asked for his
choice, would have chosen to continue. One need not sign the
majority's opinion here to agree that resort to the rule petitioner
argues for should be had only if experience shows that less drastic
means of safeguarding suspects' constitutional rights are not up to
the job, see generally United States v. Leon, 468 U. S. 897 ,
927928 (1984) (BLACKMUN, J., concurring) (exclusionary rule
exception must be "tested in the real world of state and federal
law enforcement, and this Court will attend to the results").

															***

															Our cases are best respected by a rule that when a suspect under
custodial interrogation makes an ambiguous statement that might
reasonably be understood as expressing a wish that a lawyer be
summoned (and questioning cease), interrogators' questions should
be confined to verifying whether the individual meant to ask for a
lawyer. While there is reason to expect that trial courts will
apply today's ruling sensibly (without requiring criminal suspects
to speak with the discrimination of an Oxford don) and that
interrogators will continue to follow what the Court rightly calls
"good police practice" (compelled up to now by a substantial body
of state and Circuit law), I believe that the case law under Miranda does not allow them to do otherwise.


OPINION OF THOMAS, J. UNITED STATES V. PATANE 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL
FRANCIS PATANE

															on writ of certiorari to the united states court of
appeals for the tenth circuit

															[June 28, 2004]

															   Justice Thomas announced the
judgment of the Court and delivered an opinion, in which The Chief
Justice and Justice Scalia join.

															   In this case we must decide
whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U. S. 436 (1966), requires
suppression of the physical fruits of the suspect’s unwarned but
voluntary statements. The Court has previously addressed this
question but has not reached a definitive conclusion. See Massachusetts v. White, 439 U. S. 280 (1978) (per curiam) (dividing evenly on the question); see also Patterson v. United States , 485 U. S. 922 (1988)
(White, J., dissenting from denial of certiorari). Although we
believe that the Court’s decisions in Oregon v. Elstad, 470 U. S. 298 (1985), and Michigan v. Tucker, 417 U. S. 433 (1974),
are instructive, the Courts of Appeals have split on the question
after our decision in Dickerson v. United
States, 530 U. S. 428 (2000). See, e.g.,
United States v. Villalba-Alvarado , 345 F. 3d
1007 (CA8 2003) (holding admissible the physical fruits of a Miranda violation); United States v. Sterling , 283 F. 3d 216 (CA4 2002) (same); United
States v. DeSumma , 272 F. 3d 176 (CA3 2001)
(same); United States v. Faulkingham , 295
F. 3d 85 (CA1 2002) (holding admissible the physical fruits of
a negligent Miranda violation). Because the Miranda rule protects against violations of the
Self-Incrimination Clause, which, in turn, is not implicated by the
introduction at trial of physical evidence resulting from voluntary
statements, we answer the question presented in the negative.

															I

															   In June 2001, respondent, Samuel
Francis Patane, was arrested for harassing his ex-girlfriend, Linda
O’Donnell. He was released on bond, subject to a temporary
restraining order that prohibited him from contacting O’Donnell.
Respondent apparently violated the restraining order by attempting
to telephone O’Donnell. On June 6, 2001, Officer Tracy Fox of the
Colorado Springs Police Department began to investigate the matter.
On the same day, a county probation officer informed an agent of
the Bureau of Alcohol, Tobacco, and Firearms (ATF), that
respondent, a convicted felon, illegally possessed a .40 Glock
pistol. The ATF relayed this information to Detective Josh Benner,
who worked closely with the ATF. Together, Detective Benner and
Officer Fox proceeded to respondent’s residence.

															   After reaching the residence and
inquiring into respondent’s attempts to contact O’Donnell, Officer
Fox arrested respondent for violating the restraining order. Detective Benner attempted to advise respondent of
his Miranda rights but got no further than the right to
remain silent. At that point, respondent interrupted, asserting
that he knew his rights, and neither officer attempted to complete
the warning.[ Footnote 1 ] App.
40. Detective Benner then asked
respondent about the Glock. Respondent was initially reluctant to
discuss the matter, stating: “I am not sure I should tell you
anything about the Glock because I don’t want you to take it away
from me.” Id., at 41. Detective Benner persisted, and
respondent told him that the pistol was in his bedroom. Respondent
then gave Detective Benner permission to retrieve the pistol.
Detective Benner found the pistol and seized it. A grand jury indicted
respondent for possession of a firearm by a convicted felon, in
violation of 18 U. S. C. §922(g)(1). The District Court
granted respondent’s motion to suppress the firearm, reasoning that
the officers lacked probable cause to arrest respondent for
violating the restraining order. It therefore declined to rule on
respondent’s alternative argument that the gun should be suppressed
as the fruit of an unwarned statement. The Court of Appeals reversed
the District Court’s ruling with respect to probable cause but
affirmed the suppression order on respondent’s alternative theory.
The court rejected the Government’s argument that this Court’s
decisions in Elstad, supra , and Tucker, supra , foreclosed application of the fruit of the
poisonous tree doctrine of Wong Sun v. United
States, 371 U. S. 471 (1963), to
the present context. 304 F. 3d 1013, 1019 (CA10 2002). These
holdings were, the Court of Appeals reasoned, based on the view
that Miranda announced a prophylactic rule, a position
that it found to be incompatible with this Court’s decision in Dickerson, supra, at 444 (“ Miranda announced a
constitutional rule that Congress may not supersede
legislatively”).[ Footnote 2 ]
The Court of Appeals thus equated Dickerson ’s announcement
that Miranda is a constitutional rule with the proposition
that a failure to warn pursuant to Miranda is itself a
violation of the Constitution (and, more particularly, of the
suspect’s Fifth Amendment rights). Based on its understanding of Dickerson , the Court of Appeals rejected the
post- Dickerson views of the Third and Fourth Circuits that
the fruits doctrine does not apply to Miranda violations.
304 F. 3d, at 1023–1027 (discussing United States v. Sterling , 283 F. 3d 216 (CA4 2002), and United
States v. DeSumma , 272 F. 3d 176 (CA3 2001)). It
also disagreed with the First Circuit’s conclusion that suppression
is not generally required in the case of negligent failures to
warn, 304 F. 3d, at 1027–1029 (discussing United
States v. Faulkingham , 295 F. 3d 85 (CA1 2002)),
explaining that “[d]eterrence is necessary not merely to deter
intentional wrongdoing, but also to ensure that officers diligently
(non-negligently) protect—and properly are trained to protect—the
constitutional rights of citizens,” 304 F. 3d, at 1028–1029.
We granted certiorari. 538 U. S. 976 (2003). As we explain below, the Miranda rule is a prophylactic employed to protect against
violations of the Self-Incrimination Clause. The Self-Incrimination
Clause, however, is not implicated by the admission into evidence
of the physical fruit of a voluntary statement. Accordingly, there
is no justification for extending the Miranda rule to this
context. And just as the Self-Incrimination Clause primarily
focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct,
and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn.
For this reason, the exclusionary rule articu- lated in cases such
as Wong Sun does not apply. Accordingly, we reverse the
judgment of the Court of Appeals and remand the case for further
proceedings consistent with this opinion. II The
Self-Incrimination Clause provides: “No person … shall be compelled
in any criminal case to be a witness against himself.” U. S.
Const., Amdt. 5. We need not decide here the precise boundaries of
the Clause’s protection. For present purposes, it suffices to note
that the core protection afforded by the Self-Incrimination Clause
is a prohibition on compelling a criminal defendant to testify
against himself at trial. See, e.g., Chavez v. Martinez, 538 U. S. 760 , 764–768 (2003)
(plurality opinion); id., at 777–779 (Souter, J.,
concurring in judgment); 8 J. Wigmore, Evidence §2263,
p. 378 (J. McNaughton rev. ed. 1961) (explaining that the
Clause “was directed at the employment of legal process to extract from the person’s own lips an admission of guilt,
which would thus take the place of other evidence”); see also United States v. Hubbell, 530 U. S. 27 , 49–56 (2000) (Thomas, J.,
concurring) (explaining that the privilege might extend to bar the
compelled production of any incriminating evidence, testimonial or
otherwise). The Clause cannot be violated by the introduction of
nontestimonial evidence obtained as a result of voluntary
statements. See, e.g., id., at 34 (noting that
the word “witness” in the Self-Incrimination Clause “limits the
relevant category of compelled incriminating communications to
those that are ‘testimonial’ in character”); id ., at 35
(discussing why compelled blood samples do not violate the Clause;
cataloging other examples and citing cases); Elstad, 470
U. S., at 304 (“The Fifth Amendment, of course, is not concerned
with nontestimonial evidence”); id ., at 306–307 (“The
Fifth Amendment prohibits use by the prosecution in its case in
chief only of compelled testimony”); Withrow v. Williams, 507 U. S. 680 , 705
(1993) (O’Connor, J., concurring in part and dissenting in part)
(describing “ true Fifth Amendment claims [as] the
extraction and use of compelled testimony”); New
York v. Quarles, 467 U. S. 649 , 665–672,
and n. 4 (1984) (O’Connor, J., concurring in judgment in part
and dissenting in part) (explaining that the physical fruit of a Miranda violation need not be suppressed for these
reasons). To be sure, the
Court has recognized and applied several prophylactic rules
designed to protect the core privilege against self-incrimination.
See, e.g., Chavez , supra , at 770–772
(plurality opinion). For example, although the text of the
Self-Incrimination Clause at least suggests that “its coverage [is
limited to] compelled testimony that is used against the defendant
in the trial itself,” Hubbell , supra , at 37,
potential suspects may, at times, assert the privilege in
proceedings in which answers might be used to incriminate them in a
subsequent criminal case. See, e.g., United
States v. Balsys, 524 U. S. 666 , 671–672
(1998); Minnesota v. Murphy, 465 U. S. 420 , 426
(1984); cf. Kastigar v. United
States, 406 U. S. 441 (1972)
(holding that the Government may compel grand jury testimony from
witnesses over Fifth Amendment objections if the witnesses receive
“use and derivative use immunity”); Uniformed Sanitation Men
Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U. S. 280 , 284
(1968) (allowing the Government to use economic compulsion to
secure statements but only if the Government grants appropriate
immunity). We have explained that “[t]he natural concern which
underlies [these] decisions is that an inability to protect the
right at one stage of a proceeding may make its invocation useless
at a later stage.” Tucker , 417 U. S., at
440–441. Similarly, in Miranda , the Court concluded that the possibility of
coercion inherent in custodial interrogations unacceptably raises
the risk that a suspect’s privilege against self-incrimination
might be violated. See Dickerson , 530 U. S., at 434–435; Miranda , 384 U. S., at 467. To protect against this
danger, the Miranda rule creates a presumption of
coercion, in the absence of specific warnings, that is generally
irrebuttable for purposes of the prosecution’s case in
chief. But because these
prophylactic rules (including the Miranda rule)
necessarily sweep beyond the actual protections of the
Self-Incrimination Clause, see, e.g., Withrow, supra , at 690–691; Elstad , supra , at
306, any further extension of these rules must be justified by its
necessity for the protection of the actual right against compelled
self-incrimination, Chavez , supra , at 778
(opinion of Souter, J.) (requiring a “ ‘powerful
showing’ ” before “expand[ing] … the privilege against
compelled self-incrimination”). Indeed, at times the Court has
declined to extend Miranda even where it has perceived a
need to protect the privilege against self-incrimination. See, e.g., Quarles , supra , at 657 (concluding
“that the need for answers to questions in a situation posing a
threat to the public safety outweighs the need for the prophylactic
rule protecting the Fifth Amendment’s privilege against
self-incrimination”). It is for these reasons that
statements taken without Miranda warnings (though not
actually compelled) can be used to impeach a defendant’s testimony
at trial, see Elstad , supra , at 307–308; Harris v. New York, 401 U. S. 222 (1971),
though the fruits of actually compelled testimony cannot, see New Jersey v. Portash, 440 U. S. 450 , 458–459
(1979). More generally, the Miranda rule “does not require
that the statements [taken without complying with the rule] and
their fruits be discarded as inherently tainted,” Elstad ,
470 U. S., at 307. Such a blanket suppression rule could not be
justified by reference to the “Fifth Amendment goal of assuring
trustworthy evidence” or by any deterrence rationale, id., at 308; see Tucker , supra , at 446–449; Harris , supra , at 225–226, and n. 2, and
would therefore fail our close-fit requirement. Furthermore, the
Self-Incrimination Clause contains its own exclusionary rule. It
provides that “[n]o person … shall be compelled in any criminal
case to be a witness against himself.” Amdt. 5. Unlike the Fourth
Amendment’s bar on unreasonable searches, the Self-Incrimination
Clause is self-executing. We have repeatedly explained “that those
subjected to coercive police interrogations have an automatic protection from the use of their involuntary
statements (or evidence derived from their statements) in any
subsequent criminal trial.” Chavez , 538 U. S., at 769
(plurality opinion) (citing, for example, Elstad, supra ,
at 307–308). This explicit textual protection supports a strong
presumption against expanding the Miranda rule any
further. Cf. Graham v. Connor, 490 U. S. 386 (1989). Finally, nothing in Dickerson , including its characterization of Miranda as announcing a constitutional rule, 530 U. S., at
444, changes any of these observations. Indeed, in Dickerson , the Court specifically noted that the Court’s
“subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming
[ Miranda ]’s core ruling that unwarned statements may not
be used as evidence in the prosecution’s case in chief.” Id ., at 443–444. This description of Miranda ,
especially the emphasis on the use of “unwarned statements … in the
prosecution’s case in chief,” makes clear our continued focus on
the protections of the Self-Incrimination Clause. The Court’s
reliance on our Miranda precedents, including both Tucker and Elstad , see, e.g., Dickerson , supra , at 438, 441, further demonstrates the continuing
validity of those decisions. In short, nothing in Dickerson calls into question our continued insistence
that the closest possible fit be maintained between the
Self-Incrimination Clause and any rule designed to protect
it. III Our cases also
make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s
constitutional rights or even the Miranda rule. So much
was evident in many of our pre- Dickerson cases, and we
have adhered to this view since Dickerson . See Chavez, supra , at 772–773 (plurality opinion)
(holding that a failure to read Miranda warnings did not
violate the respondent’s constitutional rights); 538 U. S., at 789.
(Kennedy, J., concurring in part and dissenting in part) (agreeing
“that failure to give a Miranda warning does not, without
more, establish a completed violation when the unwarned
interrogation ensues”); Elstad , supra , at 308; Quarles , 467 U. S., at 654; cf. Chavez , supra , at 777–779 (opinion of Souter, J.). This, of
course, follows from the nature of the right protected by the
Self-Incrimination Clause, which the Miranda rule, in
turn, protects. It is “ ‘a fundamental trial right.’ ” Withrow , 507 U. S., at 691 (quoting United States v. Verdugo-Urquidez, 494 U. S. 259 , 264
(1990)). See also Chavez, supra , at 766–768
(plurality opinion); id ., at 790 (Kennedy, J., concurring
in part and dissenting in part) (“The identification of a Miranda violation and its consequences, then, ought to be
determined at trial”). It follows that
police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to
provide the suspect with the full panoply of warnings prescribed by Miranda . Potential violations occur, if at all, only upon
the admission of unwarned statements into evidence at trial. And,
at that point, “[t]he exclusion of unwarned statements … is a
complete and sufficient remedy” for any perceived Miranda violation. Chavez, supra, at 790.[ Footnote 3 ] Thus, unlike unreasonable
searches under the Fourth Amendment or actual violations of the Due
Process Clause or the Self-Incrimination Clause, there is, with
respect to mere failures to warn, nothing to deter. There is
therefore no reason to apply the “fruit of the poisonous tree”
doctrine of Wong Sun, 371 U. S., at 488.[ Footnote 4 ] See also Nix v. Williams, 467 U. S. 431 , 441
(1984) (discussing the exclusionary rule in the Sixth Amendment
context and noting that it applies to “ illegally obtained
evidence [and] other incriminating evidence derived from [it]”
(emphasis added)). It is not for this Court to impose its preferred
police practices on either federal law enforcement officials or
their state counterparts. IV In the present
case, the Court of Appeals, relying on Dickerson , wholly
adopted the position that the taking of unwarned statements
violates a suspect’s constitutional rights. 304 F. 3d, at
1028–1029.[ Footnote 5 ] And, of
course, if this were so, a strong deterrence-based argument could
be made for suppression of the fruits. See, e.g., Nix , supra , at 441–444; Wong Sun, supra ,
at 484–486; cf. Nardone v. United
States, 308 U. S. 338 , 341 (1939). But Dickerson ’s characterization of Miranda as a
constitutional rule does not lessen the need to maintain the
closest possible fit between the Self-Incrimination Clause and any
judge-made rule designed to protect it. And there is no such fit
here. Introduction of the nontestimonial fruit of a voluntary
statement, such as respondent’s Glock, does not implicate the
Self-Incrimination Clause. The admission of such fruit presents no
risk that a defendant’s coerced statements (however defined) will
be used against him at a criminal trial. In any case, “[t]he
exclusion of unwarned statements … is a complete and sufficient
remedy” for any perceived Miranda violation. Chavez , 538 U. S., at 790 (Kennedy, J., concurring in part
and dissenting in part). See also H. Friendly, Benchmarks 280–281
(1967). There is simply no need to extend (and therefore no
justification for extending) the prophylactic rule of Miranda to this context. Similarly, because police
cannot violate the Self-Incrimination Clause by taking unwarned
though voluntary statements, an exclusionary rule cannot be
justified by reference to a deterrence effect on law enforcement,
as the Court of Appeals believed, 304 F. 3d, at 1028–1029. Our
decision not to apply Wong Sun to mere failures
to give Miranda warnings was sound at the time Tucker and Elstad were decided, and we decline to
apply Wong Sun to such failures now. The Court of Appeals ascribed
significance to the fact that, in this case, there might be “little
[practical] difference between [respondent’s] confessional
statement” and the actual physical evidence. 304 F. 3d, at
1027. The distinction, the court said, “appears to make little
sense as a matter of policy.” Ibid . But, putting policy
aside, we have held that “[t]he word ‘witness’ in the
constitutional text limits the” scope of the Self-Incrimination
Clause to testimonial evidence. Hubbell, 530 U. S., at
34–35. The Constitution itself makes the distinction.[ Footnote 6 ] And although it is true that the
Court requires the exclusion of the physical fruit of actually
coerced statements, it must be remembered that statements taken
without sufficient Miranda warnings are presumed to have
been coerced only for certain purposes and then only when necessary
to protect the privilege against self-incrimination. See Part II, supra . For the reasons discussed above, we decline to
extend that presumption further.[ Footnote 7 ] Accordingly, we reverse the
judgment of the Court of Appeals and remand the case for further
proceedings consistent with this opinion. It is so ordered. Footnote
1 The Government concedes that
respondent’s answers to subsequent on-the-scene questioning are
inadmissible at trial under Miranda v. Arizona, 384 U. S. 436 (1966), despite the
partial warning and respondent’s assertions that he knew his
rights. Footnote
2 The Court of Appeals also
distinguished Oregon v. Elstad, 470 U. S. 298 (1985), on the ground
that the second (and warned) confession at issue there was the
product of the defendant’s volition. 304 F. 3d, at 1019, 1021.
For the reasons discussed below, we do not find this distinction
relevant. Footnote
3 We acknowledge that there is
language in some of the Court’s post- Miranda decisions
that might suggest that the Miranda rule operates as a
direct constraint on police. See, e.g., Stansbury v. California, 511 U. S. 318 , 322
(1994) (per curiam); Moran v. Burbine, 475 U. S. 412 , 420
(1986) (stating that “ Miranda imposed on the police an
obligation to follow certain procedures”); cf. Edwards v. Arizona, 451 U. S. 477 , 485
(1981). But Miranda itself made clear that its focus was
the admissibility of statements, see, e.g., 384 U. S., at
439, 467, a view the Court reaffirmed in Dickerson v. United States, 530 U. S. 428 , 443–444 (2000)
(equating the Miranda rule with the proposition that
“unwarned statements may not be used as evidence in the
prosecution’s case in chief ” (emphasis added)). Footnote
4 We reject respondent’s
invitation to apply the balancing test of Nardone v. United States, 308 U. S. 338 (1939). Brief for
Respondent 15–33. At issue in Nardone was the violation of
a federal wiretap statute, and the Court employed an exclusionary
rule to deter those violations. But, once again, there are no
violations (statutory or constitutional) to deter here. Footnote
5 It is worth mentioning that
the Court of Appeals did not have the benefit of our decision in Chavez v. Martinez , 538 U. S. 760 (2003). Footnote
6 While Fourth Amendment
protections extend to “persons, houses, papers, and effects,” the
Self-Incrimination Clause prohibits only compelling a defendant to
be “a witness against himself,” Amdt. 5. Footnote
7 It is not clear whether the
Government could have used legal processes actually to compel
respondent to produce the Glock, though there is a reasonable
argument that it could have. See, e.g., United
States v. Hubbell, 530 U. S. 27 , 42–45 (2000); Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549 , 554–556
(1990); Fisher v. United States, 425 U. S. 391 (1976); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 , 302–303
(1967); Schmerber v. California, 384 U. S. 757 , 761
(1966). But see Commonwealth v. Hughes , 380 Mass.
583, 404 N. E. 2d 1239 (1980); Goldsmith v. Superior Court , 152 Cal. App. 3d
76 , 199 Cal. Rptr.
366 (1984). In light of this, it would be especially odd to
exclude the Glock here. 542 U. S. ____ (2004) UNITED STATES V. PATANE 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL
FRANCIS PATANE

															on writ of certiorari to the united states court of
appeals for the tenth circuit

															[June 28, 2004]

															   Justice Kennedy, with whom
Justice O’Connor joins, concurring in the judgment.

															   In Oregon v. Elstad , 470
U. S. 298 (1985), New York v. Quarles , 467 U. S. 649 (1984), and Harris v. New York , 401 U. S. 222 (1971),
evidence obtained following an unwarned interrogation was held
admissible. This result was based in large part on our recognition
that the concerns underlying the Miranda v. Arizona, 384 U. S. 436 (1966),
rule must be accommodated to other objectives of the criminal
justice system. I agree with the plurality that Dickerson v. United States , 530 U. S. 428 (2000),
did not undermine these precedents and, in fact, cited them in
support. Here, it is sufficient to note that the Government
presents an even stronger case for admitting the evidence obtained
as the result of Patane’s unwarned statement. Admission of
nontestimonial physical fruits (the Glock in this case), even more
so than the postwarning statements to the police in Elstad and Michigan v. Tucker , 417 U. S. 433 (1974),
does not run the risk of admitting into trial an accused’s coerced
incriminating statements against himself. In light of the important
probative value of reliable physical evidence, it is doubtful that
exclusion can be justified by a deterrence rationale sensitive to
both law enforcement interests and a suspect’s rights during an
in-custody interrogation. Unlike the plurality, however, I find it
unnecessary to decide whether the detective’s failure to give
Patane the full Miranda warnings should be characterized
as a violation of the Miranda rule itself, or whether
there is “[any]thing to deter” so long as the unwarned statements
are not later introduced at trial. Ante , at 8–10.

															   With these observations, I concur in the
judgment of the Court. SOUTER, J., DISSENTING UNITED STATES V. PATANE 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL
FRANCIS PATANE

															on writ of certiorari to the united states court of
appeals for the tenth circuit

															[June 28, 2004]

															   Justice Souter, with whom Justice
Stevens and Justice Ginsburg join, dissenting.

															   The majority repeatedly says that
the Fifth Amendment does not address the admissibility of
nontestimonial evidence, an overstatement that is beside the point.
The issue actually presented today is whether courts should apply
the fruit of the poisonous tree doctrine lest we create an
incentive for the police to omit Miranda warnings, see Miranda v. Arizona , 384 U. S. 436 (1966),
before custodial interrogation.[ Footnote 1 ] In closing their eyes to the consequences of
giving an evidentiary advantage to those who ignore Miranda , the majority adds an important inducement for
interrogators to ignore the rule in that case. Miranda rested on insight into the
inherently coercive character of custodial interrogation and the
inherently difficult exercise of assessing the voluntariness of any
confession resulting from it. Unless the police give the prescribed
warnings meant to counter the coercive atmosphere, a custodial
confession is inadmissible, there being no need for the previous
time-consuming and difficult enquiry into voluntariness. That
inducement to forestall involuntary statements and troublesome
issues of fact can only atrophy if we turn around and recognize an
evidentiary benefit when an unwarned statement leads investigators
to tangible evidence. There is, of course, a price for excluding
evidence, but the Fifth Amendment is worth a price, and in the
absence of a very good reason, the logic of Miranda should
be followed: a Miranda violation raises a presumption of
coercion, Oregon v. Elstad , 470
U. S. 298 , 306–307, and n. 1 (1985), and the Fifth
Amendment privilege against compelled self-incrimination extends to
the exclusion of derivative evidence, see United States v. Hubbell , 530
U. S. 27 , 37–38 (2000) (recognizing “the Fifth Amendment’s
protection against the prosecutor’s use of incriminating
information derived directly or indirectly from … [actually]
compelled testimony”); Kastigar v. United States , 406 U. S. 441 ,
453 (1972). That should be the end of this case.

															   The fact that the books contain some
exceptions to the Miranda exclusionary rule carries no
weight here. In Harris v. New York , 401 U. S. 222 (1971), it
was respect for the integrity of the judicial process that
justified the admission of unwarned statements as impeachment
evidence. But Patane’s suppression motion can hardly be described
as seeking to “pervert” Miranda “into a license to use
perjury” or otherwise handicap the “traditional truth-testing
devices of the adversary process.” 401 U. S., at 225–226. Nor is
there any suggestion that the officers’ failure to warn Patane was
justified or mitigated by a public emergency or other exigent
circumstance, as in New York v. Quarles , 467 U. S. 649 (1984).
And of course the premise of Oregon v. Elstad , supra , is not on point; although a failure to give Miranda warnings before one individual statement does not
necessarily bar the admission of a subsequent statement given after
adequate warnings, 470
U. S. 298 ; cf. Missouri v. Seibert , ante, at ___ (slip op., at 12–13) (plurality opinion),
that rule obviously does not apply to physical evidence seized once
and for all.[ Footnote 2 ]

															   There is no way to read this case except as an
unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained.
The incentive is an odd one, coming from the Court on the same day
it decides Missouri v. Seibert , ante . I
respectfully dissent. Footnote 1 In so saying, we are taking the legal issue
as it comes to us, even though the facts give off the scent of a
made-up case. If there was a Miranda failure, the most
immediate reason was that Patane told the police to stop giving the
warnings because he already knew his rights. There could easily be
an analogy in this case to the bumbling mistake the police
committed in Oregon v. Elstad , 470
U. S. 298 (1985). See Missouri v. Seibert , ante, at ___ (plurality opinion) (slip op., at 12–13). Footnote 2 To the extent that Michigan v. Tucker , 417
U. S. 433 (1974) (admitting the testimony of a witness who was
discovered because of an unwarned custodial interrogation), created
another exception to Miranda , it is off the point here. In Tucker , we explicitly declined to lay down a broad rule
about the fruits of unwarned statements. Instead, we “place[d] our
holding on a narrower ground,” relying principally on the fact that
the interrogation occurred before Miranda was decided and
was conducted in good faith according to constitutional standards
governing at that time. 417 U. S., at 447–448 (citing Escobedo v. Illinois , 378 U. S. 478 (1964)). 542 U. S. ____ (2004) 542 U. S. ____ (2004) 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL
FRANCIS PATANE

															on writ of certiorari to the united states court of
appeals for the tenth circuit

															[June 28, 2004]

															   Justice Breyer, dissenting.

															   For reasons similar to those set
forth in Justice Souter’s dissent and in my concurring opinion in Missouri v. Seibert , ante , at __, I
would extend to this context the “fruit of the poisonous tree”
approach, which I believe the Court has come close to adopting in Seibert . Under that approach, courts would exclude
physical evidence derived from unwarned questioning unless the
failure to provide Miranda warnings was in good faith. See Seibert , ante , at __ (slip op., at 1) (Breyer,
J., concurring); cf. ante , at 1, n. 1 (Souter, J.,
dissenting). Because the courts below made no explicit finding as
to good or bad faith, I would remand for such a determination.