Chapter 46: Miranda Rules of Suppression

[1] USSC: Dickerson v.
US (2000) 530 US 428, 438 ["Miranda is a
constitutional decision"].

[2] QUOTE FROM:
P v. Cunningham (2015) 61 C4 609, 643 ["the totality of the
circumstances of the interrogation support the conclusion
defendant's statements given after he was later advised of his
Miranda rights were voluntary and not the product of
psychological inducement"]. USSC:
Colorado v. Connelly (1986) 479 US 157, 164 ["Absent police
conduct causally related to the confession, there is simply no
basis for concluding that any state actor has deprived a criminal
defendant of due process of law."].

[3] CAL: P v.
Smithson (2000) 79 CA4 480, 494; P v.
Brewer (2000) 81 CA4 442, 453 ["physical articles of
evidence allegedly obtained in violation of Fifth and Sixth
Amendment principles cannot be suppressed by use of a Pen.
Code§ 1538.5 hearing, since such a hearing is limited to
search and seizure issues"]; P v. Mattson (1990) 50
C3 826, 851.

[4] CAL: P v.
Smithson (2000) 79 CA4 480, 494. NOTE: The court
need not make formal findings, but its ruling on the
Miranda issue "must be reflected in the record with
unmistakable clarity." P v. Smithson (2000) 79 CA4
480, 494.

[5] CAL: P v.
Smithson (2000) 79 CA4 480, 494. NOTE: IN LIMINE:
"The term 'in limine' means 'at the outset.' A motion in limine is
a procedural mechanism to limit in advance testimony or evidence
in a particular area." US v. Heller (9C 2009)
551 F3 1108, 1111.

[6] CAL: P v. Clark (1992)
3 C4 41, 119; P v. Smithson (2000) 79 CA4 480, 495,
498; P v. Riva (2003) 112 CA4 981, 992
["pretrial rulings on the admissibility of evidence should be
reviewable by another judge following a mistrial because they are
intermediate, interlocutory rulings subject to revision even after
the commencement of trial," edited].

[7] CAL: P v.
Smithson (2000) 79 CA4 480, 496-99.

[8] USSC: Colorado v.
Connelly (1986) 479 US 157, 168. CAL:
P v. Sauceda-Contreras (2012) 55 C4 203, 219; P v.
Markham (1989) 49 C3 63, 67, fn.3, 71; P v.
Whitson (1998) 17 C4 229, 248; P v.
Clark (1993) 5 C4 950, 987, fn.12; P v.
Williams (1997) 16 C4 635, 659; P v.
Ray (1996) 13 C4 313, 336, fn.10; P v.
Jones (1998) 17 C4 279, 296.

[9] CAL: P v.
Douglas (1990) 50 C3 468, 500-1; P v.
Badgett (1995) 10 C4 330, 343; P v.
Jenkins (2000) 22 C4 900, 965; P v.
Varnum (1967) 66 C2 808, 812; P v.
Goldberg (1984) 161 CA3 170, 178.

[10] USSC: Miranda v.
Arizona (1966) 384 US 436, 476-77. 9th CIR:
Jackson v. Giurbino (9C 2004) 364 F3 1002,
1008 ["The required analysis concerning the admissibility of
testimonial evidence taken without Miranda warnings, in the
absence of exigent circumstances, is refreshingly simple. The
trial court must exclude such evidence."].

[11] USSC: Harris v.
New York (1971) 401 US 222, 226. CAL:
P v. Edwards (2017) 11 CA5 759, 766; P v.
Riskin (2006) 143 CA4 234, 243 [Seibert did not
overrule Harris]. 9th CIR: US v. Gomez (9C
2013) 725 F3 1121, 1128. OTHER: US v.
Murdock (DCC 2012) 667 F3 1302.

[12] USSC:
Missouri v. Seibert (2004) 542 US 600 (in which the Supreme
Court indicates it will not tolerate intentional or tactical
violations of its laws), and Chapter 43 Miranda Waivers
(Pre-waiver Communications, The "two step"). COMPARE:
P v. Peevy (1998) 17 C4 1184, 1191-92;
P v. Demetrulias (2006) 39 C4 1, 30 ["the
deliberateness of a [Miranda] violation did not alter the
balance struck in Harris and other cases between deterring
police misconduct and exposing defendants who commit perjury at
trial"]; P v. Depriest (2007) 42 C4 1, 35 [court
rejects the argument that "continued interrogation" after suspect
invoked "compels a finding of official coercion."].

[13] CAL: In re Martinez (1970)
1 C3 641, 648-50; P v. Racklin (2011) 195 CA4
872, 878-81.

[14] CAL: P v.
Johnson (2010) 183 CA4 253, 283 ["allowing the trial court
to utilize the suppressed confession when ruling on the
admissibility of evidence under Section 352 significantly promotes
the court's truth-seeking function"].

[15] USSC: US v.
Patane (2004) 542 US 630, 643-44 ["we have held that the
word 'witness' in the constitutional text limits the scope of the
Self-Incrimination Clause [of the Fifth Amendment] to
testimonial evidence." Emphasis added. CAL:
P v. Bey (1993) 21 CA4 1623; P v.
Montano (1991) 226 CA3 914; P v.
Brewer (2000) 81 CA4 442, 457 ["the fruit of the poisonous
tree doctrine has no application to noncoerced statements obtained
in violation of Miranda"]; P v.
Whitfield (1996) 46 CA4 947, 955. OTHER:
US v. Oloyede (4C 2019) 933 F3 302, 309; US
v. Jackson (11C 2007) 506 F3 1358, 1361 ["Miranda
does not require the exclusion of physical evidence that is
discovered on the basis of a voluntary, although unwarned
statement."]. NOTE: Although Patane was a plurality
opinion, a majority of the court agreed that physical evidence
will not be suppressed on grounds it was obtained as a result of a
technical violation].

[16] USSC: Michigan v.
Tucker (1974) 417 US 433, 450-52; US v.
Ceccolini (1978) 435 US 268. CAL:
P v. Case (2018) 5 C5 1, 24 ["But it does not follow that
the fruits of such an otherwise voluntary statement are invariably
tainted and inadmissible."]. ALSO SEE: US v.
Leon (1984) 468 US 897, 911 ["a witness' testimony may be
admitted even when his identity was discovered in an
unconstitutional search"].

[17] USSC: Doyle v.
Ohio (1976) 426 US 610; Wainwright v.
Greenfield (1986) 474 US 284, 292 ["it is fundamentally
unfair to promise an arrested person that his silence will not be
used against him and thereafter to breach that promise by using
the silence to impeach his trial testimony"]. CAL:
P v. Lopez (2005) 129 CA4 1508, 1525 ["a person's
invocation of his or her right to remain silent cannot be used as
evidence of guilt"]. 9th CIR: Hurd v.
Terhune (9C 2010) 619 F3 1080, 1087 [Doyle error
resulted from defendant's refusal to take polygraph exam or
reenact crime].

[18] CAL: P v. Campbell (2017)
12 CA5 666, 672 ["The use of Campbell's post-Miranda
silence was a fair response to defense evidence or argument
because Campbell portrayed himself as truly forthcoming with the
police.]; P v. Champion (2005) 134 CA4 1440, 1448
["A violation of due process does not occur where the prosecutor's
reference to defendant's postarrest silence constitutes a fair
response to defendant's claim or a fair comment on the
evidence."]; P v. Austin (1994) 23 CA4 1596,
1611-12. ALSO SEE: P v. Hughes (2002)
27 C4 287, 332 ["[Doyle error] is waived by defense
counsel's failure to object."].

[19] USSC: Wainwright v.
Greenfield (1986) 474 US 284, 292. COMPARE:
P v. Jones (1997) 15 C4 119, 172 ["Because defendant
had introduced evidence of his uncommunicativeness as alleged
proof that he suffered from a mental illness, the prosecution was
entitled to impeach or rebut such an inference by presenting to
the jury evidence [that he had remained silent under instructions
from his attorney]."].

[20] USSC:
Pennsylvania v. Muniz (1990) 496 US 582, 594 ["in order to
be testimonial, an accused's communication must itself, explicitly
or implicitly, relate a factual assertion or disclose
information."]; Ohio v. Clark (2015) 576 US 237, 250-51
["Instead, we ask whether a statement was given with the "primary
purpose of creating an out-of-court substitute for trial
testimony."]. OTHER: US v. Calvetti (6C 2016) 836 F3
654.

[21] USSC:
Oregon v. Elstad (1985) 470 US 298.

[22] USSC: Oregon v.
Elstad (1985) 470 US 298, 318 ["We hold today that a
suspect who has once responded to unwarned yet uncoercive
questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite
Miranda warnings."]; Michigan v.
Harvey (1990) 494 US 344, 351 ["We have never
prevented use by the prosecution of relevant voluntary statements
by a defendant, particularly when the violations alleged by a
defendant relate only to procedural safeguards that are not
themselves rights protected by the Constitution, but are instead
measures designed to ensure that constitutional rights are
protected."]. CAL: P v. Krebs (2019) 8 C5 265, 308
[no evidence of coercion; short (15 minute) interrogation, and
defendant was "unrestrained and sitting in am employee break
room"]; P v. Montano (1991) 226 CA3 914, 932-33
["The term 'technical' is of more than passing interest because it
has become something akin to a term of art in this field"];
P v. Wash (1993) 6 C4 215, 241 ["There is no
evidence that the pre-Miranda statement was obtained
through improper police tactics or coercion. Therefore, under
[Elstad], which we have adopted as the standard in
California, the confession need not be suppressed."]; P v.
Storm (2002) 28 C4 1007, 1030 ["Where a prior custodial
statement, though obtained without Miranda warnings, was
otherwise uncoerced, any taint upon a second statement is
dissipated by a determination that the second statement was itself
voluntary and obtained without a Miranda violation."];
P v. Lujan (2001) 92 CA4 1389, 1409 ["Dickerson
makes it clear that the fruit of the poisonous tree doctrine does
not apply in the Miranda context when the subsequent
statement follows a proper warning and waiver and is voluntary
given the holding in Elstad."]; P v.
Gastile (1988) 205 CA3 1376, 1385 ["the line of California
cases, which hold that a noncoerced, non-Mirandized
confession presumptively taints a subsequent noncoerced,
Mirandized confession, is no longer viable"]; P v.
San Nicolas (2005) 34 C4 614, 639 ["there is nothing in the
record to suggest that defendant's [first statements] were
involuntary"]; P v. Torres (1989) 213 CA3 1248, 1255
["Elstad sets forth a two-step analysis: the trial court
must determine (1) whether the statements obtained in violation of
Miranda were otherwise voluntary; and (2) whether, under
the totality of the circumstances, defendant's subsequent
statements were also voluntarily made. If both tests are met and
the subsequent statements were not themselves directly in response
to further non-Miranda interrogation, they are admissible
against defendant."]; P v. Celaya (1987) 191 CA3
665, 674 [first statement coerced because officer told the
defendant that he would arrest him if he failed to cooperate].
9th CIR: Thompson v. Runnels (9C 2013) 705 F3 1089,
1097 ["the inspectors did not make promises or threats and the
overall tenor of questioning was not coercive"]; US
v. Williams (9C 2006) 435 F3 1148, 1153 ["Thus,
under Elstad, if the prewarning statement was voluntary ...
then the postwarning confession is admissible unless it was
involuntarily made despite the Miranda warning."].

[23] USSC: Missouri v.
Seibert (2004) 542 US 600, 620 (conc. opn. of Kennedy, J.)
["I would apply a narrower test applicable only in the infrequent
case, such as we have here, in which the two-step interrogation
technique was used in a calculated way to undermine the
Miranda warning." See note on Missouri v.
Seibert, below]; Oregon v. Hass (1975)
420 US 714, 723 ["If, in a given case, the officer's conduct [in
ignoring a Miranda invocation] amounts to abuse, that case,
like those involving coercion or duress, may be taken care of when
it arises measured by the traditional standards for evaluating
voluntariness and trustworthiness."]; Dickerson v.
US (2000) 530 US 428, 433-34. CAL: P v.
Jablonski (2006) 37 C4 774, 810 [the "outside Miranda" tactic may have rendered defendant's statement
involuntary]; P v. Neal (2003) 31 C4 63, 80-83;
P v. Montano (1991) 226 CA3 914, 935-36 ["It would
be difficult to imagine a more egregious example of law
enforcement authorities arrogating to themselves the exclusive
power to decide whether a constitutional right could have more
than a purely theoretical existence. No tolerance can be given to
the officers' flagrant trampling of defendant's rights,
particularly because [the interrogating officers] began the
interrogation with no intention of respecting those rights."];
In re Gilbert E. (1995) 32 CA4 1598, 1602 ["This is a very
troubling case, presenting a deliberate police violation of
Miranda."]; P v. Coffman (2004) 34 C4 1, 58
["That Sergeant Fitzmaurice repeatedly ignored Marlow's requests
for an attorney does give rise to concern"]; P v.
Bey (1993) 21 CA4 1623, 1628; P v.
Dingle (1985) 174 CA3 21, 27, fn.7; P v.
Vasila (1995) 38 CA4 865, 869, fn.2; P v.
Hinds (1984) 154 CA3 222, 238; P v.
Bradford (1997) 14 C4 1005, 1042. 9th CIR:
Pollard v. Galaza (9C 2002) 290 F3 1030;
McNally v. Butts (9C 1999) 195 F3 1039; US
v. Garvin (9C 2001) 258 F3 951, 955-56;
Cooper v. Dupnik (9C 1992) 963 F2 1220
[federal civil rights action for deliberately ignoring a
Miranda invocation]; Henry v.
Kernan (9C 1999) 197 F3 1021. BUT ALSO SEE:
P v. Guerra (2006) 37 C4 1067, 1095 [although the
officer ignored defendant's invocation, it was apparent that
defendant spoke freely with the officers ("defendant remained
eager to talk throughout the interview"); this was mainly as a
tactical maneuver to exonerate himself]; P v.
Bradford (1997) 14 C4 1005, 1033, 1039 ["However, just as a
failure to give Miranda warnings does not in and of itself
constitute coercion, neither does continued interrogation after a
defendant has invoked his right to counsel"]. NOTE: In
P v. Jablonski (2006) 37 C4 774, 814 [the California
Supreme Court stated that "repeated and persistent"
Miranda violations do not necessarily render the subsequent
statement involuntary. The court did not, however, attempt to
reconcile its decision with the US Supreme Court's decision in
Missouri v. Seibert (2004) 542 US 600.

[24] USSC: Oregon v.
Hass (1975) 420 US 714, 723 ["If, in a given case, the
officer's conduct [in ignoring a Miranda invocation]
amounts to abuse, that case, like those involving coercion or
duress, may be taken care of when it arises measured by the
traditional standards for evaluating voluntariness and
trustworthiness."]; Dickerson v. US (2000)
530 US 428, 433-34. CAL: P v.
Jablonski (2006) 37 C4 774, 810 [even if the "outside
Miranda" tactic rendered defendant's statement
involuntary, the error was harmless]; P v.
Neal (2003) 31 C4 63, 80-83; P v.
Montano (1991) 226 CA3 914, 935-36 ["It would be difficult
to imagine a more egregious example of law enforcement authorities
arrogating to themselves the exclusive power to decide whether a
constitutional right could have more than a purely theoretical
existence. No tolerance can be given to the officers' flagrant
trampling of defendant's rights, particularly because [the
interrogating officers] began the interrogation with no intention
of respecting those rights."]; In re Gilbert E. (1995) 32
CA4 1598, 1602 ["This is a very troubling case, presenting a
deliberate police violation of Miranda."]. 9th CIR:
Cooper v. Dupnik (9C 1992) 963 F2 1220
[federal civil rights action for deliberately ignoring a
Miranda invocation]. NOTE: In P v.
Jablonski (2006) 37 C4 774, 814 [the California Supreme
Court stated that "repeated and persistent"
Miranda violations do not necessarily render the subsequent
statement involuntary. The court did not, however, attempt to
reconcile its decision with the US Supreme Court's decision in
Missouri v. Seibert (2004) 542 US 600.

[25] USSC: Vega v. Tekoh (2022)
__ US __ [142 S.Ct. 2095] ["a violation of Miranda is not
itself a violation of the Fifth Amendment" and, therefore, such a
violation will not constitute grounds to sue officers for
violating their constitutional rights]; US v.
Patane (2004) 542 US 630, 640-41 [by characterizing
Miranda as "a constitutional rule," the Court in
Dickerson did not transform Miranda violations into
a constitutional violations]; Dickerson v.
US (2000) 530 US 428, 437, 440, fn.4, 442 [Miranda
warnings are not "required by the Constitution, in the sense that
nothing else will suffice to satisfy constitutional
requirements."]; Michigan v. Tucker (1974)
417 US 433, 444 ["[The Miranda warnings] are not themselves
rights protected by the Constitution but [are] instead measures to
insure that the right against compulsory self-incrimination is
protected."]; Missouri v. Seibert (2004) 542
US 600, 612, fn.4 ["But the Court in Elstad rejected the
Wong Sun fruits doctrine for analyzing the admissibility of
a subsequent warned confession following an initial failure to
administer the warnings required by Miranda."];
Chavez v. Martinez (2003) 538 US 760,
771] ["violations of judicially crafted prophylactic rules do not
violate the constitutional rights of any person"]. CAL:
P v. Storm (2002) 28 C4 1007, 1033, fn.11 [Elstad
survived Dickerson, thus a Miranda violation is not
a constitutional violation]; P v. Lujan (2001) 92
CA4 1389, 1409 ["Dickerson makes it clear that the fruit of
the poisonous tree doctrine does not apply in the
Miranda context when the subsequent statement follows a
proper warning and waiver and is voluntary given the holding in
Elstad."]; P v. Brewer (2000) 81 CA4 442,
454, fn.8 ["[Per Dickerson] the fruit of the poisonous tree
doctrine ... does not apply in cases involving noncoercive
violations of Miranda"]. NOTE: Although the US
Supreme Court has described Miranda as a "constitutional
rule," a "constitutionally based" rule, a rule that has
"constitutional character" and "constitutional underpinnings," and
a rule that provides "practical reinforcement" to Fifth Amendment
rights, it has never described it as a
constitutional right. See Dickerson v.
US (2000) 530 US 428, 437, 439 fn.4, 440; Missouri
v. Seibert (2004) 542 US 600, 609; New York
v. Quarles (1984) 467 US 649, 654. ALSO SEE: Dickerson v. US (2000) 530 US 428,
445 (dis. opn. of Scalia, J.) ["One will search today's opinion in
vain, however, for a statement (surely simple enough to make) that
[the federal statute ostensibly overruling Miranda]
violates the Constitution."]. This is why the courts often say
that Miranda rights are "prophylactic" in nature, meaning
they help prevent violations of the Fifth Amendment whose
Self-Incrimination Clause states that "no person shall be
compelled in any criminal case to be a witness against himself."
So when a court rules that an officer violated a suspect's
Miranda rights, it is simply ruling that the officer failed
to follow the Miranda procedure, not that he engaged in
coercive interrogation practices in violation of the Fifth
Amendment's "Self-Incrimination" clause. See US v.
Patane (2004) 542 US 630, 637 ["The Miranda rule is
not a code of police conduct, and police do not violate the
Constitution (or even the Miranda rule, for that matter) by
mere failures to warn."].

[26] USSC: Oregon v.
Elstad (1985) 470 US 298, 312 ["This Court has never held
that the psychological impact of voluntary disclosure of a guilty
secret qualifies as state compulsion or compromises the
voluntariness of a subsequent informed waiver."]. CAL:
P v. Beardslee (1991) 53 C3 68, 109 ["It is true
that defendant's knowledge that he had already confessed ... gave
him a false sense that he had nothing to lose in talking to the
California authorities. This might have played a role in
defendant's decision to speak… At most, however, this
suggests that 'but for' the illegality, defendant would not have
confessed in California. [But] that is not the test."];
P v. Storm (2002) 28 C4 1007, 1028-30 [suspect who
invoked the right to counsel was released from custody after
"letting the cat out of the bag"; non-coercive questioning two
days later at his home was not tainted]. OTHER: US
v. Carter (8C 1989) 884 F2 368, 372 ["The
Elstad opinion rejected the 'fruit of the poisonous tree'
and 'cat out of the bag' analogies with respect to
Miranda violations."].