U.S. Supreme Court New York v. Quarles, 467
U.S. 649 (1984) New York v. Quarles No. 82-1213 Argued January 18,
1984 Decided June 12, 1984 467
U.S. 649 CERTIORARI TO THE COURT OF APPEALS
OF NEW YORK Syllabus Respondent was charged in a New York state court with criminal
possession of a weapon. The record showed that a woman approached
two police officers who were on road patrol, told them that she had
just been raped, described her assailant, and told them that the
man had just entered a nearby supermarket and was carrying a gun.
While one of the officers radioed for assistance, the other
(Officer Kraft) entered the store and spotted respondent, who
matched the description given by the woman. Respondent ran toward
the rear of the store, and Officer Kraft pursued him with a drawn
gun, but lost sight of him for several seconds. Upon regaining
sight of respondent, Officer Kraft ordered him to stop and put his
hands over his head; frisked him and discovered that he was wearing
an empty shoulder holster; and, after handcuffing him, asked him
where the gun was. Respondent nodded toward some empty cartons and
responded that "the gun is over there." Officer Kraft then
retrieved the gun from one of the cartons, formally arrested
respondent, and read him his rights under Miranda v.
Arizona, 384 U. S. 436 .
Respondent indicated that he would answer questions without an
attorney being present and admitted that he owned the gun and had
purchased it in Florida. The trial court excluded respondent's
initial statement and the gun because the respondent had not yet
been given the Miranda warnings, and also excluded
respondent's other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New
York Supreme Court and the New York Court of Appeals affirmed. Held: The Court of Appeals erred in affirming the
exclusion of respondent's initial statement and the gun because of
Officer Kraft's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, it also
erred in affirming the exclusion of respondent's subsequent
statements as illegal fruits of the Miranda violation.
This case presents a situation where concern for public safety must
be paramount to adherence to the literal language of the
prophylactic rules enunciated in Miranda. Pp. 467 U. S.
653 -660.

															(a) Although respondent was in police custody when he made his
statements and the facts come within the ambit of Miranda, nevertheless, on these facts, there is a "public safety" exception
to the requirement that Miranda warnings be given before a
suspect's answers may be admitted Page 467 U. S. 650 into evidence, and the availability of that exception does not
depend upon the motivation of the individual officers involved. The
doctrinal underpinnings of Miranda do not require that it
be applied in all its rigor to a situation in which police officers
ask questions reasonably prompted by a concern for the public
safety. In this case, so long as the gun was concealed somewhere in
the supermarket, it posed more than one danger to the public
safety: an accomplice might make use of it, or a customer or
employee might later come upon it. Pp. 467 U. S.
655 -657.

															(b) Procedural safeguards that deter a suspect from responding,
and increase the possibility of fewer convictions, were deemed
acceptable in Miranda in order to protect the Fifth
Amendment privilege against compulsory self-incrimination. However,
if Miranda warnings had deterred responses to Officer
Kraft's question about the whereabouts of the gun, the cost would
have been something more than merely the failure to obtain evidence
useful in convicting respondent. An answer was needed to insure
that future danger to the public did not result from the
concealment of the gun in a public area. P. 467 U. S.
657 .

															(c) The narrow exception to the Miranda rule recognized
here will to some degree lessen the desirable clarity of that rule.
However, the exception will not be difficult for police officers to
apply, because, in each case, it will be circumscribed by the
exigency which justifies it. Police officers can and will
distinguish almost instinctively between questions necessary to
secure their own safety or the safety of the public and questions
designed solely to elicit testimonial evidence from a suspect. Pp. 467 U. S.
658 -659.

															58 N.Y.2d 664, 444 N.E.2d 984, reversed and remanded.

															REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined.
O'CONNOR, J., filed an opinion concurring in the judgment in part
and dissenting in part, post, p. 467 U. S. 660 .
MARSHALL, J., filed a dissenting opinion, in which BRENNAN and
STEVENS, JJ., joined, post, p. 467 U. S.
674 . Page 467 U. S. 651 JUSTICE REHNQUIST delivered the opinion of the Court.

															Respondent Benjamin Quarles was charged in the New York trial
court with criminal possession of a weapon. The trial court
suppressed the gun in question, and a statement made by respondent,
because the statement was obtained by police before they read
respondent his " Miranda rights." That ruling was affirmed
on appeal through the New York Court of Appeals. We granted
certiorari, 461 U.S. 942 (1983), and we now reverse. [ Footnote 1 ] We conclude that, under the
circumstances involved in this case, overriding considerations of
public safety justify the officer's failure to provide Miranda warnings before he asked questions devoted to
locating the abandoned weapon.

															On September 11, 1980, at approximately 12:30 a. m., Officer
Frank Kraft and Officer Sal Scarring were on road patrol in Queens,
N.Y. when a young woman approached their car. She told them that
she had just been raped by a black male, approximately six feet
tall, who was wearing a black jacket with the name "Big Ben"
printed in yellow letters on the back. She told the officers that
the man had just entered Page 467 U. S. 652 an A & P supermarket located nearby, and that the man was
carrying a gun.

															The officers drove the woman to the supermarket, and Officer
Kraft entered the store while Officer Scarring radioed for
assistance. Officer Kraft quickly spotted respondent, who matched
the description given by the woman, approaching a checkout counter.
Apparently upon seeing the officer, respondent turned and ran
toward the rear of the store, and Officer Kraft pursued him with a
drawn gun. When respondent turned the corner at the end of an
aisle, Officer Kraft lost sight of him for several seconds, and
upon regaining sight of respondent, ordered him to stop and put his
hands over his head.

															Although more than three other officers had arrived on the scene
by that time, Officer Kraft was the first to reach respondent. He
frisked him and discovered that he was wearing a shoulder holster
which was then empty. After handcuffing him, Officer Kraft asked
him where the gun was. Respondent nodded in the direction of some
empty cartons and responded, "the gun is over there." Officer Kraft
thereafter retrieved a loaded .38-caliber revolver from one of the
cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card. Respondent indicated
that he would be willing to answer questions without an attorney
present. Officer Kraft then asked respondent if he owned the gun
and where he had purchased it. Respondent answered that he did own
it and that he had purchased it in Miami, Fla.

															In the subsequent prosecution of respondent for criminal
possession of a weapon, [ Footnote
2 ] the judge excluded the statement, "the gun is over there,"
and the gun because the officer had not given respondent the
warnings required by our decision in Miranda v. Arizona, 384 U. S. 436 (1966), before asking Page 467 U. S. 653 him where the gun was located. The judge excluded the other
statements about respondent's ownership of the gun and the place of
purchase, as evidence tainted by the prior Miranda violation. The Appellate Division of the Supreme Court of New York
affirmed without opinion. 85 App.Div.2d 936, 44 N.Y.S.2d 84
(1981).

															The Court of Appeals granted leave to appeal, and affirmed by a
4-3 vote. 58 N.Y.2d 664, 444 N.E.2d 984 (1982). It concluded that
respondent was in "custody" within the meaning of Miranda during all questioning, and rejected the State's argument that the
exigencies of the situation justified Officer Kraft's failure to
read respondent his Miranda rights until after he had
located the gun. The court declined to recognize an exigency
exception to the usual requirements of Miranda because it
found no indication from Officer Kraft's testimony at the
suppression hearing that his subjective motivation in asking the
question was to protect his own safety or the safety of the public.
58 N.Y.2d at 666, 444 N.E.2d at 985. For the reasons which follow,
we believe that this case presents a situation where concern for
public safety must be paramount to adherence to the literal
language of the prophylactic rules enunciated in Miranda. [ Footnote 3 ] Page 467 U. S. 654 The Fifth Amendment guarantees that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself." In Miranda, this Court for the first time extended the Fifth
Amendment privilege against compulsory self-incrimination to
individuals subjected to custodial interrogation by the police. 384
U.S. at 384 U. S.
460 -461, 384 U. S. 467 .
The Fifth Amendment itself does not prohibit all incriminating
admissions;

															"[a]bsent 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) (emphasis added). The Miranda Court, however,
presumed that interrogation in certain custodial circumstances
[ Footnote 4 ] is inherently
coercive, and held 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. Michigan v.
Tucker, supra, at 417 U. S.
444 .

															In this case, we have before us no claim that respondent's
statements were actually compelled by police conduct which overcame
his will to resist. See Beckwith v. United States, 425 U. S. 341 , 425 U. S.
347 -348 (1976); Davis v. North Carolina, 384 U. S. 737 (1966). Thus, the only issue before us is whether Page 467 U. S. 655 Officer Kraft was justified in failing to make available to
respondent the procedural safeguards associated with the privilege
against compulsory self-incrimination since Miranda. [ Footnote 5 ]

															The New York Court of Appeals was undoubtedly correct in
deciding that the facts of this case come within the ambit of the Miranda decision as we have subsequently interpreted it.
We agree that respondent was in police custody, because we have
noted that

															"the ultimate inquiry is simply whether there is a 'formal
arrest or restraint on freedom of movement' of the degree
associated with a formal arrest," California v. Beheler, 463 U.
S. 1121 , 463 U. S.
1125 (1983) (per curiam), quoting Oregon v.
Mathiason, 429 U. S. 492 , 429 U. S. 495 (1977) (per curiam). Here, Quarles was surrounded by at least four
police officers, and was handcuffed when the questioning at issue
took place. As the New York Court of Appeals observed, there was
nothing to suggest that any of the officers were any longer
concerned for their own physical safety. 58 N.Y.2d at 666, 444
N.E.2d at 985. The New York Court of Appeals' majority declined to
express an opinion as to whether there might be an exception to the Miranda rule if the police had been acting to protect the
public, because the lower courts in New York had made no factual
determination that the police had acted with that motive. Ibid. We hold that, on these facts, there is a "public safety"
exception to the requirement that Miranda warnings be
given before a suspect's answers may be admitted into evidence, Page 467 U. S. 656 and that the availability of that exception does not depend upon
the motivation of the individual officers involved. In a
kaleidoscopic situation such as the one confronting these officers,
where spontaneity, rather than adherence to a police manual, is
necessarily the order of the day, the application of the exception
which we recognize today should not be made to depend on post
hoc findings at a suppression hearing concerning the
subjective motivation of the arresting officer. [ Footnote 6 ] Undoubtedly most police officers,
if placed in Officer Kraft's position, would act out of a host of
different, instinctive, and largely unverifiable motives -- their
own safety, the safety of others, and perhaps as well the desire to
obtain incriminating evidence from the suspect.

															Whatever the motivation of individual officers in such a
situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a
situation in which police officers ask questions reasonably
prompted by a concern for the public safety. The Miranda decision was based in large part on this Court's view that the
warnings which it required police to give to suspects in custody
would reduce the likelihood that the suspects would fall victim to
constitutionally impermissible practices of police interrogation in
the presumptively coercive environment of the station house. 384
U.S. at 384 U. S.
455 -458. The dissenters warned that the requirement of Miranda warnings would have the effect of decreasing the
number of suspects who respond to police questioning. Id. at 384 U. S. 504 , 384 U. S.
516 -517 (Harlan, J., joined by Stewart and WHITE, JJ.,
dissenting). The Miranda majority, however, apparently
felt that, whatever the Page 467 U. S. 657 cost to society in terms of fewer convictions of guilty
suspects, that cost would simply have to be borne in the interest
of enlarged protection for the Fifth Amendment privilege.

															The police in this case, in the very act of apprehending a
suspect, were confronted with the immediate necessity of
ascertaining the whereabouts of a gun which they had every reason
to believe the suspect had just removed from his empty holster and
discarded in the supermarket. So long as the gun was concealed
somewhere in the supermarket, with its actual whereabouts unknown,
it obviously posed more than one danger to the public safety: an
accomplice might make use of it, a customer or employee might later
come upon it.

															In such a situation, if the police are required to recite the
familiar Miranda warnings before asking the whereabouts of
the gun, suspects in Quarles' position might well be deterred from
responding. Procedural safeguards which deter a suspect from
responding were deemed acceptable in Miranda in order to
protect the Fifth Amendment privilege; when the primary social cost
of those added protections is the possibility of fewer convictions,
the Miranda majority was willing to bear that cost. Here,
had Miranda warnings deterred Quarles from responding to
Officer Kraft's question about the whereabouts of the gun, the cost
would have been something more than merely the failure to obtain
evidence useful in convicting Quarles. Officer Kraft needed an
answer to his question not simply to make his case against Quarles,
but to insure that further danger to the public did not result from
the concealment of the gun in a public area.

															We conclude 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. We decline to place officers
such as Officer Kraft in the untenable position of having to
consider, often in a matter of seconds, whether it best serves
society for them to ask the necessary questions without the Miranda warnings and render whatever probative Page 467 U. S. 658 evidence they uncover inadmissible, or for them to give the
warnings in order to preserve the admissibility of evidence they
might uncover but possibly damage or destroy their ability to
obtain that evidence and neutralize the volatile situation
confronting them. [ Footnote
7 ]

															In recognizing a narrow exception to the Miranda rule
in this case, we acknowledge that, to some degree, we lessen the
desirable clarity of that rule. At least in part in order to
preserve its clarity, we have over the years refused to sanction
attempts to expand our Miranda holding. See, e.g.,
Minnesota v. Murphy, 465 U. S. 420 (1984) (refusal to extend Miranda requirements to
interviews with probation officers); Fare v. Michael C., 442 U. S. 707 (1979) (refusal to equate request to see a probation officer with
request to see a lawyer for Miranda purposes); Beckwith v. United States, 425 U.
S. 341 (1976) (refusal to extend Miranda requirements to questioning in noncustodial circumstances). As we
have in other contexts, we recognize here the importance of a
workable rule

															"to guide police officers, who have only limited time and
expertise to reflect on and balance the social and individual
interests involved in the specific circumstances they
confront." Dunaway v. New York, 442 U. S. 200 , 442 U. S.
213 -214 (1979). But as we have pointed out, we believe
that the exception which we recognize today lessens the necessity
of that on-the-scene balancing process. The exception will not be
difficult for police officers to apply, because, in each case, it
will be circumscribed by the exigency which justifies it. We think
police officers can and will distinguish almost instinctively Page 467 U. S. 659 between questions necessary to secure their own safety or the
safety of the public and questions designed solely to elicit
testimonial evidence from a suspect.

															The facts of this case clearly demonstrate that distinction and
an officer's ability to recognize it. Officer Kraft asked only the
question necessary to locate the missing gun before advising
respondent of his rights. It was only after securing the loaded
revolver and giving the warnings that he continued with
investigatory questions about the ownership and place of purchase
of the gun. The exception which we recognize today, far from
complicating the thought processes and the on-the-scene judgments
of police officers, will simply free them to follow their
legitimate instincts when confronting situations presenting a
danger to the public safety. [ Footnote 8 ]

															We hold that the Court of Appeals in this case erred in
excluding the statement, "the gun is over there," and the gun
because of the officer's failure to read respondent his Miranda rights before attempting to locate the weapon.
Accordingly, Page 467 U. S. 660 we hold that it also erred in excluding the subsequent
statements as illegal fruits of a Miranda violation.
[ Footnote 9 ] We therefore
reverse and remand for further proceedings not inconsistent with
this opinion. It is so ordered. [ Footnote 1 ]

															Although respondent has yet to be tried in state court, the
suppression ruling challenged herein is a "final judgment" within
the meaning of 28 U.S.C. § 1257(3), and we have jurisdiction over
this case. In Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469 , 420 U. S. 477 (1975), we identified four categories of cases where the Court will
treat a decision of the highest state court as final for § 1257
purposes even though further proceedings are anticipated in the
lower state courts. This case, which comes to this Court in the
same posture as Michigan v. Clifford, 464 U.
S. 287 (1984), decided earlier this Term, falls within
the category which includes

															"those situations where the federal claim has been finally
decided . . . but in which later review of the federal issue cannot
be had, whatever the ultimate outcome of the case."

															420 U.S. at 420 U. S. 481 .
In this case, should the State convict respondent at trial, its
claim that certain evidence was wrongfully suppressed will be moot.
Should respondent be acquitted at trial, the State will be
precluded from pressing its federal claim again on appeal. See
California v. Stewart, 384 U. S. 436 , 384 U. S. 498 ,
n. 71 (1966) (decided with Miranda v. Arizona ).

															[ Footnote 2 ]

															The State originally charged respondent with rape, but the
record provides no information as to why the State failed to pursue
that charge.

															[ Footnote 3 ]

															We have long recognized an exigent circumstances exception to
the warrant requirement in the Fourth Amendment context. See,
e.g., Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 509 (1978); Warden v. Hayden, 387 U.
S. 294 , 387 U. S.
298 -300 (1967); Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 -15
(1948). We have found the warrant requirement of the Fourth
Amendment inapplicable in cases where the

															"'exigencies of the situation' make the needs of law enforcement
so compelling that the warrantless search is objectively reasonable
under the Fourth Amendment." Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 394 (1978), quoting McDonald v. United States, 335 U.
S. 451 , 335 U. S. 456 (1948). Although "the Fifth Amendment's strictures, unlike the
Fourth's, are not removed by showing reasonableness," Fisher v.
United States, 425 U. S. 391 , 425 U. S. 400 (1976), we conclude today that there are limited circumstances
where the judicially imposed strictures of Miranda are
inapplicable.

															[ Footnote 4 ] Miranda, on its facts, applies to station house
questioning, but we have not so limited it in our subsequent cases,
often over strong dissent. See, e.g., Rhode Island v.
Innis, 446 U. S. 291 (1980) (police car); Orozco v. Texas, 394 U.
S. 324 (1969) (defendant's bedroom); Mathis v.
United States, 391 U. S. 1 (1968)
(prison cell during defendant's sentence for an unrelated offense); but see Orozco v. Texas, supra, at 394 U. S.
328 -331 (WHITE, J., dissenting).

															[ Footnote 5 ]

															The dissent curiously takes us to task for "endors[ing] the
introduction of coerced self-incriminating statements in criminal
prosecutions," post at 467 U. S. 674 ,
and for "sanction[ing] sub silentio criminal prosecutions
based on compelled self-incriminating statements." Post at 467 U. S. 686 .
Of course our decision today does nothing of the kind. As the Miranda Court itself recognized, the failure to provide Miranda warnings, in and of itself, does not render a
confession involuntary, Miranda v. Arizona, 384 U.S. at 384 U. S. 457 ,
and respondent is certainly free on remand to argue that his
statement was coerced under traditional due process standards.
Today we merely reject the only argument that respondent has raised
to support the exclusion of his statement, that the statement must
be presumed compelled because of Officer Kraft's failure to read
him his Miranda warnings.

															[ Footnote 6 ]

															Similar approaches have been rejected in other contexts. See
Rhode Island v. Innis, supra, at 446 U. S. 301 (officer's subjective intent to incriminate not determinative of
whether "interrogation" occurred); United States v.
Mendenhall, 446 U. S. 544 , 446 U. S. 554 ,
and n. 6 (1980) (opinion of Stewart, J.) (officer's subjective
intent to detain not determinative of whether a "seizure" occurred
within the meaning of the Fourth Amendment); United States v.
Robinson, 414 U. S. 218 , 414 U. S. 236 ,
and n. 7 (1973) (officer's subjective fear not determinative of
necessity for "search incident to arrest" exception to the Fourth
Amendment warrant requirement).

															[ Footnote 7 ]

															The dissent argues that a public safety exception to Miranda is unnecessary because, in every case, an officer
can simply ask the necessary questions to protect himself or the
public, and then the prosecution can decline to introduce any
incriminating responses at a subsequent trial. Post at 467 U. S. 686 .
But absent actual coercion by the officer, there is no
constitutional imperative requiring the exclusion of the evidence
that results from police inquiry of this kind; and we do not
believe that the doctrinal underpinnings of Miranda require us to exclude the evidence, thus penalizing officers for
asking the very questions which are the most crucial to their
efforts to protect themselves and the public.

															[ Footnote 8 ]

															Although it involves police questions in part relating to the
whereabouts of a gun, Orozco v. Texas, 394 U.
S. 324 (1969), is in no sense inconsistent with our
disposition of this case. In Orozco, four hours after a
murder had been committed at a restaurant, four police officers
entered the defendant's boardinghouse and awakened the defendant,
who was sleeping in his bedroom. Without giving him Miranda warnings, they began vigorously to interrogate him
about whether he had been present at the scene of the shooting and
whether he owned a gun. The defendant eventually admitted that he
had been present at the scene and directed the officers to a
washing machine in the back room of the boardinghouse where he had
hidden the gun. We held that all the statements should have been
suppressed. In Orozco, however, the questions about the
gun were clearly investigatory; they did not in any way relate to
an objectively reasonable need to protect the police or the public
from any immediate danger associated with the weapon. In short,
there was no exigency requiring immediate action by the officers
beyond the normal need expeditiously to solve a serious crime. Rhode Island v. Innis, 446 U.
S. 291 (1980), also involved the whereabouts of a
missing weapon, but our holding in that case depended entirely on
our conclusion that no police interrogation took place so as to
require consideration of the applicability of the Miranda prophylactic.

															[ Footnote 9 ]

															Because we hold that there is no violation of Miranda in this case, we have no occasion to reach arguments made by the
State and the United States as amicus curiae that the gun
is admissible either because it is nontestimonial or because the
police would inevitably have discovered it absent their
questioning.

															JUSTICE O'CONNOR, concurring in the judgment in part and
dissenting in part.

															In Miranda v. Arizona, 384 U.
S. 436 (1966), the Court held unconstitutional, because
inherently compelled, the admission of statements derived from
in-custody questioning not preceded by an explanation of the
privilege against self-incrimination and the consequences of
forgoing it. Today, the Court concludes that overriding
considerations of public safety justify the admission of evidence
-- oral statements and a gun -- secured without the benefit of such
warnings. Ante at 467 U. S. 657 -658. In so holding, the Court acknowledges
that it is departing from prior precedent, see ante at 467 U. S. 653 ,
and that it is "lessen[ing] the desirable clarity of [the Miranda ] rule," ante at 467 U. S. 658 .
Were the Court writing from a clean slate, I could agree with its
holding. But 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. Accordingly, I would
require suppression of the initial statement taken from respondent
in this case. On the other hand, nothing in Miranda or the
privilege itself requires exclusion of nontestimonial evidence
derived from informal custodial interrogation, and I therefore
agree with the Court that admission of the gun in evidence is
proper. [ Footnote 2/1 ] Page 467 U. S. 661 I Prior to Miranda, the privilege against
self-incrimination had not been applied to an accused's statements
secured during custodial police interrogation. In these
circumstances, the issue of admissibility turned not on whether the
accused had waived his privilege against self-incrimination, but on
whether his statements were "voluntary" within the meaning of the
Due Process Clause. See, e.g., Haynes v. Washington, 373 U. S. 503 (1963); Payne v. Arkansas, 356 U.
S. 560 (1958); Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U.
S. 278 (1936). Under this approach, the "totality of the
circumstances" were assessed. If the interrogation was deemed
unreasonable or shocking, or if the accused clearly did not have an
opportunity to make a rational or intelligent choice, the
statements received would be inadmissible.

															The Miranda Court for the first time made the
Self-Incrimination Clause applicable to responses induced by
informal custodial police interrogation, thereby requiring
suppression of many admissions that, under traditional due process
principles, would have been admissible. More specifically, the
Court held that

															"the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of Page 467 U. S. 662 procedural safeguards effective to secure the privilege against
self-incrimination." Miranda v. Arizona, 384 U.S. at 384 U. S. 444 .
Those safeguards included the now-familiar Miranda warnings -- namely, that the defendant must be informed

															"that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right to
the presence of an attorney, and that, if he cannot afford an
attorney, one will be appointed for him prior to any questioning if
he so desires." Id. at 384 U. S. 479 .
The defendant could waive these rights, but any waiver had to be
made "knowingly and intelligently," id. at 384 U. S. 475 ,
and the burden was placed on the prosecution to prove that such a
waiver had voluntarily been made. Ibid. If the Miranda warnings were not properly administered or if no
valid waiver could be shown, then all responses to interrogation
made by the accused "while in custody . . . or otherwise deprived
of his freedom of action in any significant way" were to be
presumed coerced and excluded from evidence at trial. Id. at 384 U. S. 476 , 384 U. S.
479 .

															The Miranda Court itself considered objections akin to
those raised by the Court today. In dissent, JUSTICE WHITE
protested that the Miranda rules would "operate
indiscriminately in all criminal cases, regardless of the severity
of the crime or the circumstances involved." Id. at 384 U. S. 544 .
But the Miranda Court would not accept any suggestion that
"society's need for interrogation [could] outweig[h] the
privilege." To that Court, the privilege against self-incrimination
was absolute, and therefore could not be "abridged." Id. at 384 U. S.
479 .

															Since the time Miranda was decided, the Court has
repeatedly refused to bend the literal terms of that decision. To
be sure, the Court has been sensitive to the substantial burden Page 467 U. S. 663 the Miranda rules place on local law enforcement
efforts, and consequently has refused to extend the decision or to
increase its strictures on law enforcement agencies in almost any
way. See, e.g., California v. Beheler, 463 U.
S. 1121 (1983) (per curiam); Oregon v.
Mathiason, 429 U. S. 492 (1977); Beckwith v. United States, 425 U.
S. 341 (1976); Michigan v. Mosley, 423 U. S.
96 (1975); but cf. Edwards v. Arizona, 451 U. S. 477 (1981). Similarly, where "statements taken in violation of the Miranda principles [have] not be[en] used to prove the
prosecution's case at trial," the Court has allowed evidence
derived from those statements to be admitted. Michigan v.
Tucker, 417 U. S. 433 , 417 U. S. 445 (1974). But wherever an accused has been taken into "custody" and
subjected to "interrogation" without warnings, the Court has
consistently prohibited the use of his responses for prosecutorial
purposes at trial. See, e.g., Estelle v. Smith, 451 U. S. 454 (1981); Orozco v. Texas, 394 U. S. 324 (1969); Mathis v. United States, 391 U. S.
1 (1968); cf. Harris v. New York, 401 U.
S. 222 (1971) (statements may be used for impeachment
purposes). As a consequence, the "meaning of Miranda has
become reasonably clear, and law enforcement practices have
adjusted to its strictures." Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 304 (1980) (BURGER, C.J., concurring); see generally Stephens,
Flanders, & Cannon, Law Enforcement and the Supreme Court:
Police Perceptions of the Miranda Requirements, 39
Tenn.L.Rev. 407 (1972).

															In my view, a "public safety" exception unnecessarily blurs the
edges of the clear line heretofore established, and makes Miranda's requirements more difficult to understand. In
some cases, police will benefit because a reviewing court will find
that an exigency excused their failure to administer the required
warnings. But in other cases, police will suffer because, though
they thought an exigency excused their noncompliance, a reviewing
court will view the "objective" circumstances differently, and
require exclusion of admissions thereby obtained. The end result
will be a finespun new Page 467 U. S. 664 doctrine on public safety exigencies incident to custodial
interrogation, complete with the hair-splitting distinctions that
currently plague our Fourth Amendment jurisprudence.

															"While the rigidity of the prophylactic rules was a principal
weakness in the view of dissenters and critics outside the Court, .
. . that rigidity [has also been called a] strength of the
decision. It [has] afforded police and courts clear guidance on the
manner in which to conduct a custodial investigation: if it was
rigid, it was also precise. . . . [T]his core virtue of Miranda would be eviscerated if the prophylactic rules
were freely [ignored] by . . . courts under the guise of
[reinterpreting] Miranda. . . ." Fare v. Michael C., 439 U. S. 1310 , 439 U. S.
1314 (1978) (REHNQUIST, J., in chambers on application
for stay).

															The justification the Court provides for upsetting the
equilibrium that has finally been achieved -- that police cannot
and should not balance considerations of public safety against the
individual's interest in avoiding compulsory testimonial
self-incrimination -- really misses the critical question to be
decided. See ante at 467 U. S.
657 -658. Miranda has never been read to
prohibit the police from asking questions to secure the public
safety. Rather, the critical question Miranda addresses is
who shall bear the cost of securing the public safety when such
questions are asked and answered: the defendant or the State. Miranda, for better or worse, found the resolution of that
question implicit in the prohibition against compulsory
self-incrimination, and placed the burden on the State. 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. See Michigan v. Tucker, supra, at 417 U. S. 445 , 417 U. S.
447 -448, 417 U. S. 451 , 417 U. S. 452 ,
and n. 26; Orozco v. Texas, supra, at 3 394 U. S.
26 .

															The Court concedes, as it must, both that respondent was in
"custody" and subject to "interrogation" and that his statement
"the gun is over there" was compelled within the meaning of our
precedent. See ante at 467 U. S.
654 -655. In my view, Page 467 U. S. 665 since there is nothing about an exigency that makes custodial
interrogation any less compelling, a principled application of Miranda requires that respondent's statement be
suppressed. II The court below assumed, without discussion, that the privilege
against self-incrimination required that the gun derived from
respondent's statement also be suppressed, whether or not the State
could independently link it to him. [ Footnote 2/2 ] That conclusion was, in my view,
incorrect. A Citizens in our society have a deeply rooted social obligation
"to give whatever information they may have to aid in law
enforcement." Miranda v. Arizona, 384 U.S. at 384 U. S.
478 . Page 467 U. S. 666 Except where a recognized exception applies, "the criminal
defendant, no less than any other citizen, is obliged to assist the
authorities." Roberts v. United States, 445 U.
S. 552 , 445 U. S. 558 (1980). The privilege against compulsory self-incrimination is one
recognized exception, but it is an exception nonetheless. Only the
introduction of a defendant's own testimony is proscribed by the
Fifth Amendment's mandate that no person "shall be compelled in any
criminal case to be a witness against himself." That mandate does
not protect an accused from being compelled to surrender
nontestimonial evidence against himself. See Fisher v. United
States, 425 U. S. 391 , 425 U. S. 408 (1976).

															The distinction between testimonial and nontestimonial evidence
was explored in some detail in Schmerber v. California, 384 U. S. 757 (1966), a decision this Court handed down a week after deciding Miranda. The defendant in Schmerber had argued
that the privilege against self-incrimination barred the State from
compelling him to submit to a blood test, the results of which
would be used to prove his guilt at trial. The State, on the other
hand, had urged that the privilege prohibited it only from
compelling the accused to make a formal testimonial statement
against himself in an official legal proceeding. This Court
rejected both positions. It favored an approach that protected
the

															"accused only from being compelled to testify against himself,
or otherwise provide the State with evidence of a testimonial or
communicative nature."

															384 U.S. at 384 U. S. 761 .
The blood tests were admissible because they were neither
testimonial nor communicative in nature. Id. at 384 U. S.
765 .

															In subsequent decisions, the Court relied on Schmerber in holding the privilege inapplicable to situations where the
accused was compelled to stand in a lineup and utter words that
allegedly had been spoken by the robber, see United States v.
Wade, 388 U. S. 218 , 388 U. S.
221 -223 (1967), to provide handwriting samples, see
Gilbert v. California, 388 U. S. 263 , 388 U. S.
265 -266 (1967), and to supply voice exemplars. See
United States v. Dionisio, 410 U. S. 1 , 410 U. S. 5 -7
(1973); see also United States
v. Page 467 U. S. 667 Mara, 410 U. S.
1 9, 410 U. S. 21 -22
(1973).

															"The distinction which . . . emerged [in these cases], often
expressed in different ways, [was] that the privilege is a bar
against compelling 'communications' or 'testimony,' but that
compulsion which makes a suspect or accused the source of 'real or
physical evidence' does not violate it." Schmerber v. California, supra, at 384 U. S.
764 . B The gun respondent was compelled to supply is clearly evidence
of the "real or physical" sort. What makes the question of its
admissibility difficult is the fact that, in asking respondent to
produce the gun, the police also "compelled" him, in the Miranda sense, to create an incriminating testimonial
response. In other words, the case is problematic because police
compelled respondent not only to provide the gun, but also to admit
that he knew where it was and that it was his.

															It is settled that Miranda did not itself determine
whether physical evidence obtained in this manner would be
admissible. See Michigan v. Tucker, 417 U.S. at 417 U. S.
445 -446, 417 U. S. 447 , 417 U. S. 452 ,
and n. 26. But the Court in Schmerber, with Miranda fresh on its mind, did address the issue. In
concluding that the privilege did not require suppression of
compelled blood tests, the Court noted:

															"This conclusion would not necessarily govern had the State
tried to show that the accused had incriminated himself when told
that he would have to be tested. Such incriminating evidence may be
an unavoidable byproduct of the compulsion to take the test,
especially for an individual who fears the extraction or opposes it
on religious grounds. If it wishes to compel persons to submit to
such attempts to discover evidence, the State may have to forgo the
advantage of any testimonial products of administering the
test -- products which would fall within the privilege."

															384 U.S. at 384 U. S. 765 ,
and n. 9 (emphasis in original). Page 467 U. S. 668 Thus, Schmerber resolved the dilemma by allowing
admission of the nontestimonial, but not the testimonial, products
of the State's compulsion.

															The Court has applied this bifurcated approach in its subsequent
cases as well. For example, in United States v. Wade, 388 U. S. 218 , 388 U. S. 223 (1967), where admission of a lineup identification was approved,
the Court emphasized that no question was presented as to the
admissibility of anything said or done at the lineup. Likewise, in Michigan v. Tucker, where evidence derived from a
technical Miranda violation was admitted, the Court noted
that no statement taken without Miranda warnings was being
admitted into evidence. See 417 U.S. at 417 U. S. 445 ; cf. California v. Byers, 402 U. S. 424 , 402 U. S.
431 -433 (1971) (opinion of BURGER, C.J.). Thus, based on
the distinction first articulated in Schmerber, "a strong analytical argument can be made for an intermediate
rule whereby[,] although [the police] cannot require the suspect to
speak by punishment or force, the nontestimonial [evidence derived
from] speech that is [itself] excludable for failure to comply with
the Miranda code could still be used."

															H. Friendly, Benchmarks 280 (1967).

															To be sure, admission of nontestimonial evidence secured through
informal custodial interrogation will reduce the incentives to
enforce the Miranda code. But that fact simply begs the
question of how much enforcement is appropriate. There are some
situations, as the Court's struggle to accommodate a "public
safety" exception demonstrates, in which the societal cost of
administering the Miranda warnings is very high indeed.
[ Footnote 2/3 ] The Miranda decision quite practically does not express any societal interest
in having those warnings Page 467 U. S. 669 administered for their own sake. Rather, the warnings and waiver
are only required to ensure that "testimony" used against the
accused at trial is voluntarily given. Therefore, if the
testimonial aspects of the accused's custodial communications are
suppressed, the failure to administer the Miranda warnings
should cease to be of concern. Cf. Weatherford v. Bursey, 429 U. S. 545 (1977) (where interference with assistance of counsel has no effect
on trial, no Sixth Amendment violation lies). The harm caused by
failure to administer Miranda warnings relates only to
admission of testimonial self-incriminations, and the suppression
of such incriminations should, by itself, produce the optimal
enforcement of the Miranda rule. C There are, of course, decisions of this Court which suggest that
the privilege against self-incrimination requires suppression not
only of compelled statements but also of all evidence derived
therefrom. See, e.g., Maness v. Meyers, 419 U.
S. 449 (1975); Kastigar v. United States, 406 U. S. 441 (1972); McCarthy v. Arndstein, 266 U. S.
34 (1924); Counselman v. Hitchcock, 142 U. S. 547 (1892). In each of these cases, however, the Court was responding
to the dilemma that confronts persons asserting their Fifth
Amendment privilege to a court or other tribunal vested with the
contempt power. In each instance, the tribunal can require
witnesses to appear without any showing of probable cause to
believe they have committed an offense or that they have relevant
information to convey, and require the witnesses to testify even if
they have formally and expressly asserted a privilege of silence.
Individuals in this situation are faced with what Justice Goldberg
once described as "the cruel trilemma of self-accusation, perjury,
or contempt." Murphy v. Waterfront Comm'n, 378 U. S.
52 , 378 U. S. 55 (1964). If the witness' invocation of the privilege at trial is not
to be defeated by the State's refusal to let him remain silent at
an earlier proceeding, the witness has to Page 467 U. S. 670 be protected "against the use of his compelled answers and
evidence derived therefrom in any subsequent criminal case. . . ." Lefkowitz v. Turley, 414 U. S. 70 , 414 U. S. 78 (1973).

															By contrast, suspects subject to informal custodial police
interrogation of the type involved in this case are not in the same
position as witnesses required to appear before a court, grand
jury, or other such formal tribunal. Where independent evidence
leads police to a suspect, and probable cause justifies his arrest,
the suspect cannot seriously urge that the police have somehow
unfairly infringed on his right "to a private enclave where he may
lead a private life." Murphy v. Waterfront Comm'n, supra, at 378 U. S. 55 .
Moreover, when a suspect interjects not the privilege itself, but a post hoc complaint that the police failed to administer Miranda warnings, he invokes only an irrebuttable
presumption that the interrogation was coercive. He does not show
that a privilege was raised and that the police actually or overtly
coerced him to provide testimony and other evidence to be used
against him at trial. See Johnson v. New Jersey, 384 U. S. 719 , 384 U. S. 730 (1966). He could have remained silent and the interrogator could
not have punished him for refusing to speak. Indeed, the accused is
in the unique position of seeking the protection of the privilege
without having timely asserted it. Cf. United States v.
Kordel, 397 U. S. 1 , 397 U. S. 10 (1970) (failure to assert waives right to complain about
testimonial compulsion). The person in police custody surely may
sense that he is in "trouble," Oregon v. Hass, 420 U. S. 714 , 420 U. S. 722 (1975), but he is in no position to protest that he faced the
Hobson's choice of self-accusation, perjury, or contempt. He
therefore has a much less sympathetic case for obtaining the
benefit of a broad suppression ruling. See Michigan v.
Tucker, 417 U.S. at 417 U. S.
444 -451; cf. New Jersey v. Portash, 440 U. S. 450 , 440 U. S.
458 -459 (1979).

															Indeed, whatever case can be made for suppression evaporates
when the statements themselves are not admitted, given the
rationale of the Schmerber line of cases. Certainly Page 467 U. S. 671 interrogation which provides leads to other evidence does not
offend the values underlying the Fifth Amendment privilege any more
than the compulsory taking of blood samples, fingerprints, or voice
exemplars, all of which may be compelled in an "attempt to discover
evidence that might be used to prosecute [a defendant] for a
criminal offense." Schmerber v. California, 384 U.S. at 384 U. S. 761 .
Use of a suspect's answers

															"merely to find other evidence establishing his connection with
the crime [simply] differs only by a shade from the permitted use
for that purpose of his body or his blood."

															H. Friendly, Benchmarks 280 (1967). The values underlying the
privilege may justify exclusion of an unwarned person's
out-of-court statements, as perhaps they may justify exclusion of
statements and derivative evidence compelled under the threat of
contempt. But when the only evidence to be admitted is derivative
evidence such as a gun derived not from actual compulsion but from
a statement taken in the absence of Miranda warnings --
those values simply cannot require suppression, at least no more so
than they would for other such nontestimonial evidence. [ Footnote 2/4 ] Page 467 U. S. 672 On the other hand, if a suspect is subject to abusive police
practices and actually or overtly compelled to speak, it is
reasonable to infer both an unwillingness to speak and a
perceptible assertion of the privilege. See Mincey v.
Arizona, 437 U. S. 385 , 437 U. S.
396 -402 (1978). Thus, when the Miranda violation consists of a deliberate and flagrant abuse of the
accused's constitutional rights, amounting to a denial of due
process, application of a broader exclusionary rule is warranted.
Of course,

															"a defendant raising [such] a coerced confession claim . . .
must first prevail in a voluntariness hearing before his confession
and evidence derived from it [will] become inadmissible." Kastigar v. United States, 406 U.S. at 406 U. S. 462 .
By contrast, where the accused proves only that the police failed
to administer the Miranda warnings, exclusion of the
statement itself is all that will and should be required. [ Footnote 2/5 ] Limitation of the Miranda prohibition to testimonial use of the statements
themselves adequately serves the purposes of the privilege against
self-incrimination. III In Miranda, the Court looked to the experience of
countries like England, India, Scotland, and Ceylon in developing
its code to regulate custodial interrogations. See
Miranda Page 467 U. S.
673 v. Arizona, 384 U.S. at 384 U. S.
486 -489. Those countries had also adopted procedural
rules to regulate the manner in which police secured confessions to
be used against accused persons at trial. See Note,
Developments in the Law -- Confessions, 79 Harv.L.Rev. 935,
1090-1114 (1966). Confessions induced by trickery or physical abuse
were never admissible at trial, and any confession secured without
the required procedural safeguards could, in the courts'
discretion, be excluded on grounds of fairness or prejudice. See Gotlieb, Confirmation by Subsequent Facts, 72 L.Q.Rev.
209, 223-224 (1956). But nontestimonial evidence derived from all
confessions "not blatantly coerced" was and still is admitted.
Friendly, supra, at 282; see also Commissioners of
Customs and Excise v. Harz, 1 All E.R. 177, 182 (1967); King v. Warickshall, 1 Leach 262, 168 Eng.Rep. 234 (K.B.
1783). Admission of nontestimonial evidence of this type is based
on the very sensible view that procedural errors should not cause
entire investigations and prosecutions to be lost. See Enker & Elsen, Counsel For the Suspect: Massiah v. United
States and Escobedo v. Illinois, 49 Minn.L.Rev. 47,
80 (1964).

															The learning of these countries was important to development of
the initial Miranda rule. It therefore should be of equal
importance in establishing the scope of the Miranda exclusionary rule today. [ Footnote
2/6 ] I would apply that learning in this case, and adhere to
our precedents requiring that statements elicited in the absence of Miranda warnings be suppressed. But because nontestimonial
evidence such as the gun should not be suppressed, I join in that
part of the Court's judgment Page 467 U. S. 674 that reverses and remands for further proceedings with the gun
admissible as evidence against the accused.

															[ Footnote 2/1 ]

															As to the statements elicited after the Miranda warnings were administered, admission should turn solely on whether
the answers received were voluntary. See Miranda v.
Arizona, 384 U. S. 436 , 384 U. S. 475 (1966). In this case, the state courts made no express finding
concerning the voluntariness of the statements made, because they
thought the answers received had to be suppressed as "fruit" of the
initial failure to administer Miranda warnings. App.
43a-44a; 58 N.Y.2d 644, 666, 444 N.E.2d 984, 985 (1982). Whether
the mere failure to administer Miranda warnings can
"taint" subsequent admissions is an open question, compare
United States v. Toral, 536 F.2d 893, 896-897 (CA9 1976), with Oregon v. Elstad, 61 Ore.App. 673, 658 P.2d
552 (1983), cert. granted, 465 U.S. 1078 (1984), but a
proper inquiry must focus at least initially, if not exclusively,
on whether the subsequent confession is itself free of actual
coercion. See Lyons v. Oklahoma, 322 U.
S. 596 , 322 U. S. 603 (1944). I would reverse and remand for further factual findings on
this issue.

															[ Footnote 2/2 ]

															Respondent contends that the separate admissibility of the gun
is not preserved for our review. Brief for Respondent 45-51. This
contention is meritless. Respondent's motion to suppress and
supporting affidavit asked that the gun be excluded because it was
obtained in contravention of his privilege under the Fifth
Amendment. See App. 5a, 7a-8a. The State clearly opposed
this motion, contending that admission of the statements and the
gun would not violate respondent's rights under the Constitution. Id. at 9a. Both the Supreme Court of the State of New York
and the New York Court of Appeals required the gun, as well as the
statements, to be suppressed because respondent was not given the
warnings to which they thought he was constitutionally entitled. Id. at 43a (Supreme Court); 58 N.Y.2d at 666, 444 N.E.2d
at 985 (Court of Appeals). The issue whether the failure to
administer warnings, by itself, constitutionally requires exclusion
of the gun was therefore clearly contested, passed on, and
preserved for this Court's review. See Illinois v. Gates, 462 U. S. 213 , 462 U. S.
217 -224 (1983).

															Respondent also contends that, under New York law, there is an
"independent and adequate state ground" on which the Court of
Appeals' judgment can rest. Brief for Respondent 51-55. This may be
true, but it is also irrelevant. Both the trial and appellate
courts of New York relied on Miranda to justify exclusion
of the gun; they did not cite or expressly rely on any independent
state ground in their decisions. In these circumstances, this Court
has jurisdiction. See Michigan v. Long, 463 U.
S. 1032 , 463 U. S.
1040 -1041 (1983).

															[ Footnote 2/3 ]

															The most obvious example, first suggested by Judge Henry
Friendly, involves interrogation directed to the discovery and
termination of an ongoing criminal activity such as kidnaping or
extortion. See Friendly, The Bill of Rights as a Code of
Criminal Procedure, 53 Calif.L.Rev. 929, 949 (1965).

															[ Footnote 2/4 ]

															In suggesting that Wong Sun v. United States, 371 U. S. 471 (1963), requires exclusion of the gun, see post at 467 U.S. 688 -689, JUSTICE
MARSHALL fails to acknowledge this Court's holding in Michigan
v. Tucker, 417 U. S. 433 , 417 U. S.
445 -446 (1974). In Tucker, the Court very
clearly held that Wong Sun is inapplicable in cases
involving mere departures from Miranda. Wong Sun and its "fruit of the poisonous tree" analysis lead to exclusion of
derivative evidence only where the underlying police misconduct
infringes a "core" constitutional right. See 417 U.S. at 417 U. S.
445 -446. Failure to administer Miranda warnings
violates only a nonconstitutional prophylactic. Ibid. Nix v. Williams, ante p. 467 U. S. 431 , is
not to the contrary. In Nix, the Court held that evidence
which inevitably would have been discovered need not be excluded at
trial because of independent police misconduct. The Court in Nix discusses Wong Sun and its "fruit of the
poisonous tree" analysis only to show that, even assuming a "core"
violation of the Fourth, Fifth, or Sixth Amendment, evidence with a
separate causal link need not be excluded at trial. Thus, Nix concludes that only

															"where 'the subsequent trial [cannot] cure a[n otherwise]
one-sided confrontation between prosecuting authorities and the
uncounseled defendant,'" ante at 467 U. S. 447 (quoting from United States v. Ash, 413 U.
S. 300 , 413 U. S. 315 (1973)), should derivative evidence be excluded. Cf. Brewer v.
Williams, 430 U. S. 387 , 430 U. S.
406 -407, and n. 12 (1977) (leaving open question whether
any evidence beyond the incriminating statements themselves must be
excluded); Massiah v. United States, 377 U.
S. 201 , 377 U. S. 207 (1964) (same).

															[ Footnote 2/5 ]

															Respondent has not previously contended that his confession was
so blatantly coerced as to constitute a violation of due process.
He has argued only that police failed to administer Miranda warnings. He has proved, therefore, only that his
statement was presumptively compelled. In any event, that
is a question for the trial court on remand to decide in the first
instance, not for this Court to decide on certiorari review.

															[ Footnote 2/6 ]

															Interestingly, the trend in these other countries is to admit
the improperly obtained statements themselves, if nontestimonial
evidence later corroborates, in whole or in part, the admission. See Note, Developments in the Law -- Confessions, 79
Harv.L.Rev. 935, 1094-1095, 1100, 1104, 1108-1109 (1966); see
also Queen v. Ramasamy, [1965] A.C. 1, 12-15 (P. C.).

															JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS
join, dissenting.

															The police in this case arrested a man suspected of possessing a
firearm in violation of New York law. Once the suspect was in
custody and found to be unarmed, the arresting officer initiated an
interrogation. Without being advised of his right not to respond,
the suspect incriminated himself by locating the gun. The majority
concludes that the State may rely on this incriminating statement
to convict the suspect of possessing a weapon. I disagree. The
arresting officers had no legitimate reason to interrogate the
suspect without advising him of his rights to remain silent and to
obtain assistance of counsel. By finding on these facts
justification for unconsented interrogation, the majority abandons
the clear guidelines enunciated in Miranda v. Arizona, 384 U. S. 436 (1966), and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial
interrogations. More significantly, and in direct conflict with
this Court's longstanding interpretation of the Fifth Amendment,
the majority has endorsed the introduction of coerced
self-incriminating statements in criminal prosecutions. I
dissent. I Shortly after midnight on September 11, 1980, Officer Kraft and
three other policemen entered an A & P supermarket in search of
respondent Quarles, a rape suspect who was reportedly armed. After
a brief chase, the officers cornered Quarles in the back of the
store. As the other officers trained their guns on the suspect,
Officer Kraft frisked Quarles and discovered an empty shoulder
holster. Officer Kraft then handcuffed Quarles, and the other
officers holstered their guns. With Quarles' hands manacled
behind Page 467 U. S. 675 his back and the other officers standing close by, Officer Kraft
questioned Quarles: "Where is the gun?" Gesturing towards a stack
of liquid-soap cartons a few feet away, Quarles responded: "The gun
is over there." Behind the cartons, the police found a loaded
revolver. The State of New York subsequently failed to prosecute
the alleged rape, and charged Quarles on a solitary count of
criminal possession of a weapon in the third degree. [ Footnote 3/1 ] As proof of the critical
element of the offense, the State sought to introduce Quarles'
response to Officer Kraft's question, as well as the revolver found
behind the cartons. The Criminal Term of the Supreme Court of the
State of New York ordered both Quarles' statement and the gun
suppressed. The suppression order was affirmed first by the
Appellate Division, 85 App.Div.2d 936, 447 N.Y.S.2d 84 (1981), and
again by the New York Court of Appeals, 58 N.Y.2d 664, 444 N.E.2d
984 (1982) (mem.).

															The majority's entire analysis rests on the factual assumption
that the public was at risk during Quarles' interrogation. This
assumption is completely in conflict with the facts as found by New
York's highest court. Before the interrogation began, Quarles had
been "reduced to a condition of physical powerlessness." Id. at 667, 444 N.E.2d at 986. Contrary to the majority's
speculations, ante at 467 U. S. 657 ,
Quarles was not believed to have, nor did he in fact have, an
accomplice to come to his rescue. When the questioning began, the
arresting officers were sufficiently confident of their safety to
put away their guns. As Officer Kraft acknowledged at the
suppression hearing, "the situation was under control." App. 35a.
Based on Officer Kraft's own testimony, the New York Court of
Appeals found: "Nothing Page 467 U. S. 676 suggests that any of the officers was by that time concerned for
his own physical safety." 58 N.Y.2d at 666, 444 N.E.2d at 985. The
Court of Appeals also determined that there was no evidence that
the interrogation was prompted by the arresting officers' concern
for the public's safety. Ibid. The majority attempts to slip away from these unambiguous
findings of New York's highest court by proposing that danger be
measured by objective facts, rather than the subjective intentions
of arresting officers. Ante at 467 U. S.
655 -656. Though clever, this ploy was anticipated by the
New York Court of Appeals: "[T]here is no evidence in the record
before us that there were exigent circumstances posing a risk to
the public safety. . . ." 58 N.Y.2d at 666, 444 N.E.2d at 985.

															The New York court's conclusion that neither Quarles nor his
missing gun posed a threat to the public's safety is amply
supported by the evidence presented at the suppression hearing.
Again contrary to the majority's intimations, ante at 467 U. S. 657 ,
no customers or employees were wandering about the store in danger
of coming across Quarles' discarded weapon. Although the
supermarket was open to the public, Quarles' arrest took place
during the middle of the night, when the store was apparently
deserted except for the clerks at the check-out counter. The police
could easily have cordoned off the store and searched for the
missing gun. Had they done so, they would have found the gun
forthwith. The police were well aware that Quarles had discarded
his weapon somewhere near the scene of the arrest. As the State
acknowledged before the New York Court of Appeals:

															"After Officer Kraft had handcuffed and frisked the defendant in
the supermarket, he knew with a high degree of certainty that
the defendant's gun was within the immediate vicinity of the
encounter. He undoubtedly would have searched for it in the
carton a few feet away without the defendant having looked in that
direction and saying that it was there."

															Brief for Appellant in No. 2512/80 (N.Y.Ct.App.), p. 11
(emphasis added). Page 467 U. S. 677 Earlier this Term, four Members of the majority joined an
opinion stating:

															"[Q]uestions of historical fact . . . must be determined, in the
first instance, by state courts and deferred to, in the absence of
'convincing evidence' to the contrary, by the federal courts." Rushen v. Spain, 464 U. S. 114 , 464 U. S. 120 (1983) (per curiam). In this case, there was convincing, indeed
almost overwhelming, evidence to support the New York court's
conclusion that Quarles' hidden weapon did not pose a risk either
to the arresting officers or to the public. The majority ignores
this evidence and sets aside the factual findings of the New York
Court of Appeals. More cynical observers might well conclude that a
state court's findings of fact "deserv[e] a high measure of
deference,'" ibid. (quoting Sumner v. Mata, 455 U. S. 591 , 455 U. S. 598 (1982)), only when deference works against the interests of a
criminal defendant. II The majority's treatment of the legal issues presented in this
case is no less troubling than its abuse of the facts. Before
today's opinion, the Court had twice concluded that, under Miranda v. Arizona, 384 U. S. 436 (1966), police officers conducting custodial interrogations must
advise suspects of their rights before any questions concerning the
whereabouts of incriminating weapons can be asked. Rhode Island
v. Innis, 446 U. S. 291 , 446 U. S.
298 -302 (1980) (dicta); Orozco v. Texas, 394 U. S. 324 (1969) (holding). [ Footnote 3/2 ]
Now the majority departs from these cases and rules that police may
withhold Page 467 U. S. 678 Miranda warnings whenever custodial interrogations
concern matters of public safety. [ Footnote 3/3 ]

															The majority contends that the law, as it currently stands,
places police officers in a dilemma whenever they interrogate a
suspect who appears to know of some threat to the public's safety. Ante at 467 U. S. 657 .
If the police interrogate the suspect without advising him of his
rights, the suspect may reveal information that the authorities can
use to defuse the threat, but the suspect's statements will be
inadmissible at trial. If, on the other hand, the police advise the
suspect of his rights, the suspect may be deterred from responding
to the police's questions, and the risk to the public may continue
unabated. According to the majority, the police must now choose
between establishing the suspect's guilt and safeguarding the
public from danger.

															The majority proposes to eliminate this dilemma by creating an
exception to Miranda v. Arizona for custodial
interrogations concerning matters of public safety. Ante at 467 U. S.
658 -659. Under the majority's exception, police would be
permitted to interrogate suspects about such matters before the
suspects have been advised of their constitutional rights. Without
being "deterred" by the knowledge that they have a constitutional
right not to respond, these suspects will be likely to answer the
questions. Should the answers also be incriminating, the State
would be free to introduce them as evidence in a criminal
prosecution. Through this "narrow exception to the Miranda rule," ante at 467 U. S. 658 ,
the majority proposes to protect the public's safety without
jeopardizing the prosecution of criminal defendants. I find in this
reasoning an unwise and unprincipled departure from our Fifth
Amendment precedents. Page 467 U. S. 679 Before today's opinion, the procedures established in Miranda v. Arizona had

															"the virtue of informing police and prosecutors with specificity
as to what they may do in conducting custodial interrogation, and
of informing courts under what circumstances statements obtained
during such interrogation are not admissible." Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979); see Harryman v. Estelle, 616 F.2d 870, 873-874
(CA5 1980) (en banc), cert. denied, 449 U.S. 860 (1980).
In a chimerical quest for public safety, the majority has abandoned
the rule that brought 18 years of doctrinal tranquility to the
field of custodial interrogations. As the majority candidly
concedes, ante at 467 U. S. 658 , a public safety exception destroys
forever the clarity of Miranda for both law enforcement
officers and members of the judiciary. The Court's candor cannot
mask what a serious loss the administration of justice has
incurred.

															This case is illustrative of the chaos the "public safety"
exception will unleash. The circumstances of Quarles' arrest have
never been in dispute. After the benefit of briefing and oral
argument, the New York Court of Appeals, as previously noted,
concluded that there was "no evidence in the record before us that
there were exigent circumstances posing a risk to the public
safety." 58 N.Y.2d at 666, 444 N.E.2d at 985. Upon reviewing the
same facts and hearing the same arguments, a majority of this Court
has come to precisely the opposite conclusion:

															"So long as the gun was concealed somewhere in the supermarket,
with its actual whereabouts unknown, it obviously posed more than
one danger to the public safety. . . ." Ante at 467 U. S.
657 .

															If, after plenary review, two appellate courts so fundamentally
differ over the threat to public safety presented by the simple and
uncontested facts of this case, one must seriously question how law
enforcement officers will respond to the majority's new rule in the
confusion and haste of the real world. As THE CHIEF JUSTICE wrote
in a similar context: "Few, if any, police officers are competent
to make the kind Page 467 U. S. 680 of evaluation seemingly contemplated. . . ." Rhode Island v.
Innis, 446 U.S. at 446 U. S. 304 (concurring in judgment). Not only will police officers have to
decide whether the objective facts of an arrest justify an
unconsented custodial interrogation, they will also have to
remember to interrupt the interrogation and read the suspect his Miranda warnings once the focus of the inquiry shifts from
protecting the public's safety to ascertaining the suspect's guilt.
Disagreements of the scope of the "public safety" exception and
mistakes in its application are inevitable. [ Footnote 3/4 ]

															The end result, as JUSTICE O'CONNOR predicts, will be

															"a finespun new doctrine on public safety exigencies incident to
custodial interrogation, complete with the hair-splitting
distinctions that currently plague our Fourth Amendment
jurisprudence." Ante at 467 U. S.
663 -664. In the meantime, the courts will have to
dedicate themselves to spinning this new web of doctrines, and the
country's law enforcement agencies will have to suffer patiently
through the frustrations of another period of constitutional
uncertainty. III Though unfortunate, the difficulty of administering the "public
safety" exception is not the most profound flaw in the majority's
decision. The majority has lost sight of the fact that Miranda
v. Arizona and our earlier custodial interrogation cases all
implemented a constitutional privilege against self-incrimination.
The rules established in these cases were designed to protect
criminal defendants against prosecutions based on coerced
self-incriminating statements. The majority today turns its back on
these constitutional considerations, Page 467 U. S. 681 and invites the government to prosecute through the use of what
necessarily are coerced statements. A The majority's error stems from a serious misunderstanding of Miranda v. Arizona and of the Fifth Amendment upon which
that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the
benefits of "enlarged protection for the Fifth Amendment privilege"
were weighed against "the cost to society in terms of fewer
convictions of guilty suspects." Ante at 467 U. S.
656 -657. Supposedly because the scales tipped in favor
of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during
custodial interrogations. The majority now proposes to return to
the scales of social utility to calculate whether Miranda's prophylactic rule remains cost-effective when
threats to the public's safety are added to the balance. The
results of the majority's "test" are announced with
pseudoscientific precision:

															"We conclude 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." Ante at 467 U. S.
657 .

															The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 384 U.S. at 384 U. S. 504 , 384 U. S.
516 -517 (Harlan, J., dissenting), the Miranda Court refused to allow such concerns to weaken the protections of
the Constitution:

															"A recurrent argument made in these cases is that society's need
for interrogation outweighs the privilege. This argument is not
unfamiliar to this Court. The whole thrust of our foregoing
discussion demonstrates that the Constitution has prescribed the
rights of the individual when confronted with the power of
government Page 467 U. S. 682 when it provided in the Fifth Amendment that an individual
cannot be compelled to be a witness against himself. That right
cannot be abridged." Id. at 384 U. S. 479 (citation omitted). Whether society would be better off if the
police warned suspects of their rights before beginning an
interrogation or whether the advantages of giving such warnings
would outweigh their costs did not inform the Miranda decision. On the contrary, the Miranda Court was concerned
with the proscriptions of the Fifth Amendment, and, in particular,
whether the Self-Incrimination Clause permits the government to
prosecute individuals based on statements made in the course of
custodial interrogations. Miranda v. Arizona was the culmination of a
century-long inquiry into how this Court should deal with
confessions made during custodial interrogations. Long before Miranda, the Court had recognized that the Federal
Government was prohibited from introducing at criminal trials
compelled confessions, including confessions compelled in the
course of custodial interrogations. In 1924, Justice Brandeis was
reciting settled law when he wrote:

															"[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." Wan v. United States, 266 U. S. 1 , 266 U. S. 14 -15
(citing Bram v. United States, 168 U.
S. 532 (1897)).

															Prosecutors in state courts were subject to similar
constitutional restrictions. Even before Malloy v. Hogan, 378 U. S. 1 (1964),
formally applied the Self-Incrimination Clause of the Fifth
Amendment to the States, the Due Process Clause constrained the
States from extorting confessions from criminal defendants. Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U.
S. 278 (1936). Indeed, by the time of Malloy, the constraints of the Due Process Clause were almost as stringent
as the requirements of the Fifth Amendment itself. 378 U.S. at 378 U. S. 6 -7; see, e.g., Haynes v. Washington, 373 U.
S. 503 (1963). Page 467 U. S. 683 When Miranda reached this Court, it was undisputed that
both the States and the Federal Government were constitutionally
prohibited from prosecuting defendants with confessions coerced
during custodial interrogations. [ Footnote 3/5 ] As a theoretical matter, the law was
clear. In practice, however, the courts found it exceedingly
difficult to determine whether a given confession had been coerced.
Difficulties of proof and subtleties of interrogation technique
made it impossible in most cases for the judiciary to decide with
confidence whether the defendant had voluntarily confessed his
guilt or whether his testimony had been unconstitutionally
compelled. Courts around the country were spending countless hours
reviewing the facts of individual custodial interrogations. See Note, Developments in the Law -- Confessions, 79
Harv.L.Rev. 935 (1966). Miranda dealt with these practical problems. After a
detailed examination of police practices and a review of its
previous decisions in the area, the Court in Miranda determined that custodial interrogations are inherently coercive.
The Court therefore created a constitutional presumption that
statements made during custodial interrogations are compelled in
violation of the Fifth Amendment, and are thus inadmissible in
criminal prosecutions. As a result of the Court's decision in Miranda, a statement made during a custodial interrogation
may be introduced as proof of a defendant's guilt only if the
prosecution demonstrates that the defendant knowingly and
intelligently waived his constitutional rights before making the
statement. [ Footnote 3/6 ] The Page 467 U. S. 684 now-familiar Miranda warnings offer law enforcement
authorities a clear, easily administered device for ensuring that
criminal suspects understand their constitutional rights well
enough to waive them and to engage in consensual custodial
interrogation.

															In fashioning its "public safety" exception to Miranda, the majority makes no attempt to deal with the constitutional
presumption established by that case. The majority does not argue
that police questioning about issues of public safety is any less
coercive than custodial interrogations into other matters. The
majority's only contention is that police officers could more
easily protect the public if Miranda did not apply to
custodial interrogations concerning the public's safety. [ Footnote 3/7 ] But Miranda was not
a decision about public safety; it was a decision about coerced
confessions. Without establishing that interrogations concerning
the public's safety are less likely to be coercive than other
interrogations, the majority cannot endorse the "public safety"
exception and remain faithful to the logic of Miranda v.
Arizona. B The majority's avoidance of the issue of coercion may not have
been inadvertent. It would strain credulity to contend Page 467 U. S. 685 that Officer Kraft's questioning of respondent Quarles was not
coercive. [ Footnote 3/8 ] In the
middle of the night and in the back of an empty supermarket,
Quarles was surrounded by four armed police officers. His hands
were handcuffed behind his back. The first words out of the mouth
of the arresting officer were: "Where is the gun?" In the
majority's phrase, the situation was "kaleidoscopic." Ante at 467 U. S. 656 .
Police and suspect were acting on instinct. Officer Kraft's abrupt
and pointed question pressured Quarles in precisely the way that
the Miranda Court feared the custodial interrogations
would coerce self-incriminating testimony.

															That the application of the "public safety" exception in this
case entailed coercion is no happenstance. The majority's ratio
decidendi is that interrogating suspects about matters of
public safety will be coercive. In its cost-benefit analysis, the
Court's strongest argument in favor of a "public safety" exception
to Miranda is that the police would be better able to
protect the public's safety if they were not always required to
give suspects their Miranda warnings. The crux of this
argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would
refuse to respond to police questioning were they advised of their
constitutional rights. The "public safety" exception is efficacious
precisely because it permits police officers to coerce criminal
defendants into making involuntary statements.

															Indeed, in the efficacy of the "public safety" exception lies a
fundamental and constitutional defect. Until today, this Court
could truthfully state that the Fifth Amendment is given "broad
scope" "[w]here there has been genuine compulsion Page 467 U. S. 686 of testimony." Michigan v. Tucker, 417 U.
S. 433 , 417 U. S. 440 (1974). Coerced confessions were simply inadmissible in criminal
prosecutions. The "public safety" exception departs from this
principle by expressly inviting police officers to coerce
defendants into making incriminating statements, and then
permitting prosecutors to introduce those statements at trial.
Though the majority's opinion is cloaked in the beguiling language
of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating
statements. I find this result in direct conflict with the Fifth
Amendment's dictate that "[n]o person . . . shall be compelled in
any criminal case to be a witness against himself."

															The irony of the majority's decision is that the public's safety
can be perfectly well protected without abridging the Fifth
Amendment. If a bomb is about to explode or the public is otherwise
imminently imperiled, the police are free to interrogate suspects
without advising them of their constitutional rights. Such
unconsented questioning may take place not only when police
officers act on instinct, but also when higher faculties lead them
to believe that advising a suspect of his constitutional rights
might decrease the likelihood that the suspect would reveal
life-saving information. If trickery is necessary to protect the
public, then the police may trick a suspect into confessing. While
the Fourteenth Amendment sets limits on such behavior, nothing in
the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth
Amendment forbids is the introduction of coerced statements at
trial. Cf. Weatherford v. Bursey, 429 U.
S. 545 (1977) (Sixth Amendment violated only if trial
affected).

															To a limited degree, the majority is correct that there is a
cost associated with the Fifth Amendment's ban on introducing
coerced self-incriminating statements at trial. Without a "public
safety" exception, there would be occasions when a defendant
incriminated himself by revealing a threat to the Page 467 U. S. 687 public, and the State was unable to prosecute because the
defendant retracted his statement after consulting with counsel and
the police cannot find independent proof of guilt. Such occasions
would not, however, be common. The prosecution does not always lose
the use of incriminating information revealed in these situations.
After consulting with counsel, a suspect may well volunteer to
repeat his statement in hopes of gaining a favorable plea bargain
or more lenient sentence. The majority thus overstates its case
when it suggests that a police officer must necessarily choose
between public safety and admissibility. [ Footnote 3/9 ]

															But however frequently or infrequently such cases arise, their
regularity is irrelevant. The Fifth Amendment prohibits compelled
self-incrimination. [ Footnote
3/10 ] As the Court has explained on numerous occasions, this
prohibition is the mainstay of our adversarial system of criminal
justice. Not only does it protect us against the inherent
unreliability of compelled testimony, but it also ensures that
criminal investigations will be conducted with integrity, and that
the judiciary will avoid the taint of official lawlessness. See Murphy Page 467 U. S. 688 v. Waterfront Comm'n, 378 U. S. 52 , 378 U. S. 55 (1964). The policies underlying the Fifth Amendment's privilege
against self-incrimination are not diminished simply because
testimony is compelled to protect the public's safety. The majority
should not be permitted to elude the Amendment's absolute
prohibition simply by calculating special costs that arise when the
public's safety is at issue. Indeed, were constitutional
adjudication always conducted in such an ad hoc manner,
the Bill of Rights would be a most unreliable protector of
individual liberties. IV Having determined that the Fifth Amendment renders inadmissible
Quarles' response to Officer Kraft's questioning, I have no doubt
that our precedents require that the gun discovered as a direct
result of Quarles' statement must be presumed inadmissible as well.
The gun was the direct product of a coercive custodial
interrogation. In Silverthorne Lumber Co. v. United
States, 251 U. S. 385 (1920), and Wong Sun v. United States, 371 U.
S. 471 (1963), this Court held that the Government may
not introduce incriminating evidence derived from an illegally
obtained source. This Court recently explained the extent of the Wong Sun rule:

															"Although Silverthorne and Wong Sun involved
violations of the Fourth Amendment, the 'fruit of the poisonous
tree' doctrine has not been limited to cases in which there has
been a Fourth Amendment violation. The Court has applied the
doctrine where the violations were of the Sixth Amendment, see
United States v. Wade, 388 U. S. 218 (1967), as well as
of the Fifth Amendment." Nix v. Williams, ante at 467 U. S. 442 (footnote omitted). Accord, United States v. Crews, 445 U. S. 463 , 445 U. S. 470 (1980). [ Footnote 3/11 ] When they
ruled on the issue, the New York courts were Page 467 U. S. 689 entirely correct in deciding that Quarles' gun was the tainted
fruit of a nonconsensual interrogation, and therefore was
inadmissible under our precedents.

															However, since the New York Court of Appeals issued its opinion,
the scope of the Wong Sun doctrine has changed. In Nix
v. Williams, supra, this Court construed Wong Sun to
permit the introduction into evidence of constitutionally tainted
"fruits" that inevitably would have been discovered by the
government. In its briefs before this Court and before the New York
courts, petitioner has argued that the "inevitable discovery" rule,
if applied to this case, would permit the admission of Quarles'
gun. Although I have not joined the Court's opinion in Nix, and although I am not wholly persuaded that New York
law would permit the application of the "inevitable discovery" rule
to this case, [ Footnote 3/12 ] Page 467 U. S. 690 I believe that the proper disposition of the matter is to vacate
the order of the New York Court of Appeals to the extent that it
suppressed Quarles' gun and remand the matter to the New York Court
of Appeals for further consideration in light of Nix v.
Williams. Accordingly, I would affirm the order of the Court of Appeals to
the extent that it found Quarles' incriminating statement
inadmissible under the Fifth Amendment, would vacate the order to
the extent that it suppressed Quarles' gun, and would remand the
matter for reconsideration in light of Nix v.
Williams. [ Footnote 3/1 ]

															Under New York law, any person who possesses a loaded firearm
outside of his home or place of business is guilty of criminal
possession of a weapon in the third degree. N.Y. Penal Law §
265.02(4) (McKinney 1980).

															[ Footnote 3/2 ]

															The majority attempts to distinguish Orozco by
stressing the fact that the interrogation in this case immediately
followed Quarles' arrest, whereas the interrogation in Orozco occurred some four hours after the crime and was
investigatory. Ante at 467 U. S. 655 ,
n. 5. I fail to comprehend the distinction. In both cases, a group
of police officers had taken a suspect into custody and questioned
the suspect about the location of a missing gun. In both cases, a
dangerous weapon was missing, and in neither case was there any
direct evidence where the weapon was hidden.

															[ Footnote 3/3 ]

															Although the majority stresses the exigencies of Quarles'
arrest, it is undisputed that Quarles was in custody when Officer
Kraft's questioning began, ante at 467 U. S. 655 ,
and there is nothing in the majority's rationale -- save the
instincts of police officers -- to prevent it from applying to all
custodial interrogations.

															[ Footnote 3/4 ]

															One of the peculiarities of the majority's decision is its
suggestion that police officers can "distinguish almost
instinctively" questions tied to public safety and questions
designed to elicit testimonial evidence. Ante at 467 U. S. 658 .
Obviously, these distinctions are extraordinary difficult to draw.
In many cases -- like this one -- custodial questioning may serve
both purposes. It is therefore wishful thinking for the majority to
suggest that the intuitions of police officers will render its
decision self-executing.

															[ Footnote 3/5 ]

															There was, of course, still considerable confusion over whether
the Sixth Amendment or the Fifth Amendment provided the basis for
this prohibition. See Escobedo v. Illinois, 378 U.
S. 478 (1964). But the matter was undeniably of
constitutional magnitude.

															[ Footnote 3/6 ]

															Until today, the Court has consistently adhered to Miranda's holding that, absent informed waiver, statements
made during a custodial interrogation cannot be used to prove a
defendant's guilt. Admittedly, in Harris v. New York, 401 U. S. 222 (1971), the Court permitted such statements to be introduced to
impeach a defendant, but their introduction was tolerated only
because the jury had been instructed to consider the statements
"only in passing on [the defendant's] credibility and not as
evidence of guilt." Id. at 401 U. S.
223 .

															[ Footnote 3/7 ]

															The majority elsewhere attempts to disguise its decision as an
effort to cut back on the overbreadth of Miranda's prophylactic standard. Ante at 467 U. S.
654 -655. The disguise is transparent. Although Miranda was overbroad in that its application excludes
some statements made during custodial interrogations that are not
in fact coercive, the majority is not dealing with a class of cases
affected by Miranda's overbreadth. The majority is
exempting from Miranda's prophylactic rule incriminating
statements that were elicited to safeguard the public's safety. As
is discussed below, see infra, at 467 U. S.
685 -686, the majority supports the "public safety"
exception because "public safety" interrogations can be coercive.
In this respect, the Court's decision differs greatly from Michigan v. Tucker, 417 U. S. 433 (1974), in which the Court sanctioned the admission of the fruits
of a Miranda violation, but only because the violation was
technical and the interrogation itself noncoercive.

															[ Footnote 3/8 ]

															The majority's reliance on respondent's failure to claim that
his testimony was compelled by police conduct can only be
disingenuous. Before today's opinion, respondent had no need to
claim actual compulsion. Heretofore, it was sufficient to
demonstrate that the police had conducted nonconsensual custodial
interrogation. But now that the law has changed, it is only fair to
examine the facts of the case to determine whether coercion
probably was involved.

															[ Footnote 3/9 ]

															I also seriously question how often a statement linking a
suspect to the threat to the public ends up being the crucial and
otherwise unprovable element of a criminal prosecution. The facts
of the current case illustrate this point. The police arrested
respondent Quarles not because he was suspected of carrying a gun,
but because he was alleged to have committed rape. Ante at 467 U. S.
651 -652. Had the State elected to prosecute on the rape
count alone, respondent's incriminating statement about the gun
would have had no role in the prosecution. Only because the State
dropped the rape count and chose to proceed to trial solely on the
criminal possession charge did respondent's answer to Officer
Kraft's question become critical.

															[ Footnote 3/10 ]

															In this sense, the Fifth Amendment differs fundamentally from
the Fourth Amendment, which only prohibits unreasonable searches
and seizures. See Fisher v. United States, 425 U.
S. 391 , 425 U. S. 400 (1976). Accordingly, the various exceptions to the Fourth Amendment
permitting warrantless searches under various circumstances should
have no analogy in the Fifth Amendment context. Curiously, the
majority accepts this point, see ante at 467 U. S. 652 ,
n. 2, but persists in limiting the protections of the Fifth
Amendment .

															[ Footnote 3/11 ]

															As our decisions in Nix and Crews reveal, the
treatment of derivative evidence proposed in JUSTICE O'CONNOR's
opinion concurring in the judgment in part and dissenting in part, ante p. 467 U. S. 660 ,
represents a much more radical departure from precedent than that
opinion acknowledges. Although I have serious doubts about the
wisdom of her proposal, I will not discuss them here. Petitioner
never raised this novel theory of federal constitutional law before
any New York court, see Brief for Appellant in No. 2512/80
(N.Y.Ct.App.); Brief for Appellant in No. 2512-80 (N.Y.App.Div.),
and no New York court considered the theory sua sponte. The matter was therefore "not pressed or passed on in the courts
below." McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430 , 309 U. S. 434 (1940). Since petitioner's derivative evidence theory is of
considerable constitutional importance, it would be inconsistent
with our precedents to permit petitioner to raise it for the first
time now. See Illinois v. Gates, 462 U.
S. 213 , 462 U. S.
217 -223 (1983). An independent reason for declining to
rule on petitioner's derivative evidence theory is that petitioner
may have been barred by New York procedures from raising this
theory before the New York Court of Appeals. See 467
U.S. 649 fn3/12|>n. 12, infra. Even if the claim
were properly presented, it would be injudicious for the Court to
embark on a new theory of derivative evidence when the gun in
question might be admissible under the construction of Wong
Sun just enunciated by the Court in Nix v. Williams. See infra this page and 467 U. S.
690 .

															[ Footnote 3/12 ]

															At least two procedural hurdles could prevent petitioner from
making use of the "inevitable discovery" exception on remand.
First, petitioner did not claim inevitable discovery at the
suppression hearing. This case therefore contains no record on the
issue, and it is unclear whether the question is preserved under
New York's procedural law. People v. Martin, 50 N.Y.2d
1029, 409 N.E.2d 1363 (1980); People v. Tutt, 38 N.Y.2d
1011, 348 N.E.2d 920 (1976). Second, the New York Rules of Criminal
Procedure have codified the "fruit-of-the-poisonous-tree" doctrine.
N.Y.Crim.Proc.Law § 710.20(4) (McKinney 1980 and Supp.1983-1984).
Even after Nix v. Williams, Quarles' gun may still be
suppressed under state law. These issues, of course, are matters of
New York law, which could be disposed of by the New York courts on
remand.