STATE OF OREGON, PETITIONER V. MICHAEL JAMES ELSTAD

   No. 83-773

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari To the Court of Appeals of the State of

   Oregon

   Brief For the United States As Amicus Curiae Supporting Petitioner

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Respondent's written confession should not be exluded
      from evidence
      A. Neither of respondent's statements was compelled
      B. Respondent validly waived his Miranda rights
         before making the second statement
      C. An otherwise admissible statement should not
         be excluded from evidence solely because it is
         the product of a statement obtained in violation
         of Miranda when there is no substantial probability
         that the first statement was compelled
   Conclusion

                          QUESTION PRESENTED

   Whether respondent's voluntary and otherwise admissible confession
must be excluded from evidence on the ground that it was the product
of a prior voluntary statement by respondent that is inadmissible
under Miranda v. Arizona, 384 U.S. 436 (1966).

                     INTEREST OF THE UNITED STATES

   In this case a criminal defendant voluntarily made two successive
inculpatory statements.  Because the first statement was made under
conditions that, according to a concession by the State, rendered it
inadmissible under Miranda v. Arizona, 384 U.S. 436 (1966), the court
below ordered the suppression of the second statement as well.  This
Court's analysis and resolution of the question whether the second
statement is admissible is likely to have a significant effect on the
admissibility of voluntary statements, and perhaps other evidence
allegedly derived from a violation of Miranda, in federal criminal
prosecutions.

                               STATEMENT

   Two police officers went to respondent's residence during the
afternoon and were met at the door by respondent's mother.  When they
asked to see respondent, she directed them to a bedroom where
respondent was resting.  One officer went to the kitchen of the home
with respondent's mother, while the other asked respondent to dress
and then accompanied him to the living room.  Respondent's mother was
told that the officers had a warrant to arrest respondent on a charge
of burglary, but respondent was not told that the officers had a
warrant or that he was under arrest.  Pet. App. 2;  J.A. 9, 18-20,
27-28.

   In the living room, the officer asked respondent if he was aware
why the officers were there.  Respondent said he was not.  The officer
then asked respondent if he knew a Mr. Gross.  Respondent replied in
the affirmative and added that he had heard of a "robbery" at the
Gross residence.  The officer then suggested to respondent that be
believed respondent may have been involved in the burglary, and
respondent replied:  "I was there." Pet. App. 2;  J.A. 19-20 28-29.

   Respondent was then transported to the stationhouse.  The trip took
approximately one hour because the arresting officers were diverted to
answer another call, and a different officer completed the journey
with respondent.  At the stationhouse, respondent was, for the first
time, given the warnings specified by Miranda v. Arizona, 384 U.S. 436
(1966).  Respondent completed and signed a written form that had the
Miranda warnings printed on it;  he acknowledged in writing that he
understood his rights and wished to discuss the crime with the police.
 He then gave the arresting officers a full written confession (J.A.
40-42) that detailed his role in the burglary.  Pet. App. 2;  J.A.
10-14, 21-23, 32-33, 38.

   The State did not seek to use at trial the statement respondent
made at his home.  The trial court, after a hearing, denied
respondent's motion to suppress the subsequent written confession.
The court first remarked that in its view the statement given at
respondent's home would have been inadmissible because it was not
preceded by Miranda warnings.  But the court explained that the
subsequent statement was admissible for the following reasons (J.A.
37-38):

      (T)he evidence shows that there was no taint between the first
      statement "I was there" and the second.  * * *

         There was a break in the events * * * and I think the taint
      -- there's no showing of any taint whatsoever.

         There is a showing by the State that the statements were made
      freely and voluntarily.

After a trial without a jury, respondent was convicted of first-degree
burglary.  He was sentenced to no more than five years' imprisonment
and required to make restitution (J.A. 48).

   The Oregon Court of Appeals reversed (Pet. App. 1-6).  It noted
that the State conceded that respondent's first statement was
inadmissible, and stated (id. at 3):  "Our inquiry here is whether
there was a sufficient break in the stream of events between that
inadmissible statement and the written confession to insulate the
latter statement from the effect of what went before." The court
acknowledged that "the absence of actual compulsion * * * may be a
factor in the analysis of the 'total circumstances of each case' that
we must make in these successive interrogation cases" (id. at 4
(citation omitted)), but it ruled that this was not "a factor of
sufficient significance" to render the second statement admissible
(id. at 3-4).  The court reasoned as follows (id. at 4):

      Regardless of the absence of actual compulsion, the coercive
      impact of the unconstitutionally obtained statement remains,
      because in a defendant's mind it has sealed his fate.  It is
      this impact that must be dissipated in order to make a
      subsequent confession admissible.  In determining whether it has
      been dissipated, lapse of time and change of place from the
      original surroundings are the most important considerations.
      See Westover v. United States, 384 U.S. 436, 496 * * * (1966).

   The Court of Appeals then noted that respondent "remained in
custody without an opportunity to consult an attorney" after he made
the first statement, and that "the same two officers who had elicited
the original confessions were present at the subsequent interrogation"
(Pet. App. 4).  For these reasons, the court stated, it did not "find
the absence of actual threats and compulsion sufficient" to warrant
admitting the second statement into evidence (ibid).

   The Court of Appeals also rejected the State's argument that
respondent's first statement revealed so little incriminating
information that it could not be viewed as the cause of the second
statement, which was far more inculpatory.  The court explained (Pet.
App. 5):  "(The first) statement may not literally have admitted
complicity in the burglary, but given the manner in which the
questioning officer put the inquiry * * * (it) was significantly
incriminatory.  The cat was sufficiently out of the bag to exert a
coercive impact on (respondent's) later admissions."

   A concurring judge joined the court's opinion because he believed
the case was controlled by state law precedents but expressed his
regret that the "metaphor (of 'the cat is out of the bag') now rules
where analysis was once sovereign" (Pet. App. 5).

   The Oregon Supreme Court denied a petition for review without
opinion (Pet. App. 7).

                          SUMMARY OF ARGUMENT

   The opinion of the Oregon Court of Appeals suggests three possible
bases for ordering the suppression of respondent's written confession.
 We submit that none of them justifies that result.

   A. It is plain that neither of respondent's statements was actually
"compelled" within the meaning of the Self-Incrimination Clause of the
Fifth Amendment.  The officers used no threatening or oppressive
tactics at any time.  The Court of Appeals' suggestion that
respondent's first statement coerced his second statement by letting
"the cat out of the bag" reflects a misunderstanding of the notion of
coercion:  when a suspect makes a voluntary statement because the
authorities have confronted him with incriminating evidence, that
statement may be subject to suppression for some reason, but it is not
correct to say that it has been coerced.

   B. The Court of Appeals also suggested that respondent's second
statement was inadmissible, even though it was obtained following a
waiver of Miranda rights, because the prior questioning at
respondent's residence -- questioning that, the State conceded, did
not comply with Miranda -- undermined respondent's capacity to give a
subsequent valid waiver of his Miranda rights.  We doubt that the
State's concession was sound;  we believe that respondent, who was not
told he was under arrest, was not "in custody" within the meaning of
Miranda when he was questioned at his residence.  See Beckwith v.
United States, 425 U.S. 341 (1976).  But assuming that respondent was
"in custody" when he made his first statement, the most that can be
said is that the questioning constituted a borderline violation of
Miranda.  This was not remotely sufficient to cause respondent not to
comprehend the meaning of his Miranda warnings when he did receive
them, or to impair his ability to make a fully voluntary decision
whether to invoke his rights.

   C. The most likely explanation of the court of appeals' decision is
that the court considered respondent's second statement to be derived
from -- that is, to be a "fruit" of -- the prior, inadmissible
statement.  This Court has not resolved the question whether evidence
derived from statements that are inadmissible under Miranda should
ever be suppressed, and we have taken the position that the Miranda
exclusionary rule should be confined to the statement obtained without
proper warnings and should not extend to any fruits of such a
statement.  But it is unnecessary for the Court to resolve that broad
question here, because there are narrower grounds for holding
respondent's written confession admissible.

   To begin with, respondent's written confession cannot be a
suppressible "fruit" unless it was the causal product of his earlier
remark, and the trial court appears to have been correct in its
determination that the first statement did not produce the second.
But even assuming that respondent's written confession was a product
of his initial remark, the second statement should not have been
suppressed because there is no substantial likelihood that the first
statement was actually coerced.

   We do not dispute that when the first statement has been compelled,
a subsequent statement that is a product of the first statement should
also be inadmissible.  We also recognize that the Miranda exclusionary
rule is designed to deter abusive police questioning practices, and
that it reflects in part the difficulty of determining reliably the
voluntariness of statements obtained after prolonged incommunicado
police interrogation.  But these considerations underlying the Miranda
rules cannot possibly be undermined by admitting into evidence an
alleged fruit of a prior statement when -- as here -- there is no
substantial likelihood that the prior statement was actually
compelled.

   Admitting respondent's written confession is entirely consistent
with the values underlying the Self-Incrimination Clause.  When
respondent decided to provide the State with the testimonial evidence
it now seeks to use against him, he acted voluntarily and with an
understanding of his right to remain silent if he chose to do so.  At
bottom, respondent's claim is not that his written confession was the
product of coercion but that it was the product of his ignorance about
the evidentiary status of his first statement.  But such ignorance has
never been thought to amount to coercion, and it should not be grounds
for suppressing evidence when the only action by the police that was
even arguably improper was a technical violation of Miranda.

                               ARGUMENT

 RESPONDENT'S WRITTEN CONFESSION SHOULD NOT BE EXCLUDED FROM EVIDENCE

   Before respondent gave the written confession at issue here, he was
advised of his Miranda rights and waived those rights in writing.
There is no suggestion that the officers used oppressive or abusive
tactics in obtaining the confession.  Ordinarily, the
Self-Incrimination Clause of the Fifth Amendment would present no
obstacle to the use of such a confession against a criminal defendant.
 The rationale of the Oregon Court of Appeals' contrary ruling is
somewhat unclear, but in our view none of the reasons suggested by the
court's opinion justifies the suppression of respondent's written
confession.

   A. Neither Of Respondent's Statements Was Compelled

   1. The evil at which the Self-Incrimination Clause is aimed is
compelled self-incriminating testimony.  In this case, it appears to
be beyond dispute that neither of respondent's statements was the
product of actual compulsion.  The trial court specifically found that
"(t)here is a showing by the State that the statements were made
freely and voluntarily" (J.A. 38).  The Court of Appeals not only did
not overturn this finding but appeared to agree that there was an
"absence of actual threats and compulsion" (Pet. App. 4).

   There is no evidence whatever that the officers used coercive
tactics either at respondent's residence or at the stationhouse.
Although the State has conceded that respondent was "in custody"
within the meaning of Miranda at the time of his first statement, it
is far from clear -- as we will explain -- that even this concession
was sound.  But assuming that respondent was "in custody," the most
that can be said is that the first statement was obtained through a
technical violation of Miranda.  There is no suggestion that the
police used abusive or oppressive tactics.  And there is no suggestion
that the police actions at the stationhouse were coercive or
overbearing.  Indeed, the stationhouse interrogation was plainly not
irregular in any way;  respondent received Miranda warnings and signed
a written waiver.

   2. The Court of Appeals suggested that respondent's first
statement, by letting "the cat out of the bag," had a "coercive
impact" that led to the second statement (Pet. App. 5).  This appears
to have been merely a careless use of the word "coercive" that does
not reflect a determination that respondent's written statement was
actually the product of compulsion within the meaning of the
Self-Incrimination Clause.  In any event, it is clear that even when
officers deliberately use a suspect's prior statement to cause him to
make a second statement, the second statement has not been compelled
within the meaning of the Fifth Amendment.  This of course does not
mean that the second statement will always be admissible into
evidence:  if the first statement was involuntary, we do not dispute
that the subsequent statement should ordinarily be suppressed, /1/ and
if the first statement is inadmissible for some other reason, the
second statement may also be subject to suppression.  But it is
incorrect to say that a subsequent statement that is merely induced by
officers through the use of a prior statement, and is not itself the
product of coercion, has been compelled within the meaning of the
Fifth Amendment.

   If a person speaks because he has been threatened with criminal
punishment or physical violence, then, of course, his statement has
been compelled.  If his will has been overborne by such psychological
tactics as isolation or relentless interrogation, then, too, the
statement will be considered involuntary.  On the other hand, if a
person confesses because he has assessed the government's evidence
against him and has decided that it is pointless to persist in his
claims of innocence, his confession is the fully voluntary "product of
a rational intellect and a free will" (Blackburn v. Alabama, 361 U.S.
199, 208 (1960)).  Similarly, if a suspect is confronted with
incriminating evidence and decides that it is in his interest to try
to explain why the evidence does not necessarily inculpate him, his
explanation is not compelled within the meaning of the
Self-Incrimination Clause.  Cf. Oregon v. Mathiason, 429 U.S. 492,
495-496 (1977);  Beckwith v. United States, 425 U.S. 341 (1976).

   These propositions are equally true when the evidence with which a
suspect is confronted is his own prior statement.  See McMann v.
Richardson, 397 U.S. 759, 769 (1970).  If the officers in this case
had prompted respondent to confess by confronting him with a recording
of an intercepted telephone coversation in which he planned the
burglary, the confession might or might not be admissible -- that
would depend in part on the legality of the interception -- but there
is not doubt that it would be voluntary.  The situation is not
materially different when a suspect is confronted, not with an
intercepted conversation, but with statements he has previously made
to the officers themselves.  It follows that, whatever the
admissibility of respondent's written confession, that confession was
not compelled, even if it was the product of the prior statement "I
was there."

   B. Respondent Validly Waived His Miranda Rights Before Making The
Second Statement

   Even a voluntary statement, of course, is inadmissible if it has
been obtained in violation of the prophylactic rules established by
Miranda.  Miranda requires that unless a person in custody has been
warned of his right to remain silent and his right to counsel and has
made a voluntary and intelligent waiver of those rights, any
statements he makes in response to interrogation cannot be used
against him.  384 U.S. at 444-445.

   As we have noted, respondent's second statement, on the surface,
appears to have been obtained in circumstances that fully satisfied
Miranda.  Respondent was warned of his rights, and he executed a
written waiver.  Nothing about the interrogation atmosphere, and
nothing in the behavior of the police or respondent, indicates that
the waiver was not voluntary and intelligent.

   Certain portions of the court of appeals' opinion, however, suggest
that the court believed that the events at respondent's residence
somehow vitiated his subsequent waiver of Miranda rights.  For
example, the Court of Appeals emphasized that only an hour elapsed
between the two statements and that the same officers elicited both.
This suggests that the court believed that the atmosphere created by
the officers at the arrest scene -- where, under the State's
concession, Miranda was violated -- carried over and invalidated
respondent's subsequent waiver of his Miranda rights.  This reading of
the court's opinion is reinforced by its citation of Westover v.
United States, a case decided with Miranda (see 384 U.S. at 494-497)
in which this Court held that the atmosphere created by a particular
course of custodial interrogation without warnings -- during which the
suspect did not confess, so there was no "fruits" question -- carried
over and undermined a waiver given, after warnings, in subsequent
questioning.

   To the extent the Court of Appeals concluded that respondent's
waiver of his Miranda rights was invalid, it plainly erred.  It is
instructive to compare this case with Westover.  Westover was
interrogated at length, without warnings, while being held in custody
for 14 hours by local police.  During this period, he did not confess.
 Federal agents then took over the interrogation and, at the outset of
their questioning, warned him of his rights.  Two hours later, he
confessed to the federal agents.  384 U.S. at 494-496.  This Court
ordered the confession suppressed because the "intense and prolonged
interrogation" (Michigan v. Mosely, 423 U.S. 96, 107 (1975)) that
preceded the warnings had the effect of undermining the voluntary and
intelligent character of the suspect's waiver of his rights (see
Miranda, 384 U.S. at 495-497).

   The contrast between Westover and this case could hardly be
greater.  Westover was subjected to lengthy, relentless interrogation
while being held at a stationhouse;  respondent was asked a few
questions in his own living room.  This case resembles Westover far
less than it resembles Beckwith v. United States, supra, where the
Court had little difficulty in concluding that no Miranda warnings
were required.  Indeed, in Beckwith the questioning was much more
prolonged than it was here (see 425 U.S. at 342-344).

   To be sure, Beckwith was not in custody, and the State has conceded
that respondent was in custody -- and was therefore entitled to
Miranda warnings -- at the time he made his first statement.  But we
doubt that this concession was legally sound.  The basis of Miranda
was the Court's conclusion that warnings are needed to dispel coercive
psychological forces that are created when a suspect is placed in
custodial surroundings.  See 384 U.S. at 448-458.  It therefore seems
evident that the test for whether a suspect is "in custody" within the
meaning of Miranda must depend on whether a suspect would reasonably
perceive that he has been subjected to formal arrest or its equivalent
(see California v. Beheler, No. 82-1666 (July 6, 1983), slip op. 4) --
not on the arresting officers' uncommunicated subjective intentions.
Cf. INS v. Delgado, No. 82-1271 (Apr. 17, 1984), slip op. 5.  See,
e.g., United States v. Harris, 611 F.2d 170, 173 (6th Cir. 1979)
(defendant was not in custody because "(w)hile the agents might have
prevented the defendant from leaving the room, they never informed the
defendant of that intention");  United States v. Smith, 441 F.2d 539,
540 (9th Cir. 1981) ("The unexpressed intent of the officer to detain
Smith had he attempted to leave does not create a custodial
interrogation.");  United States v. Hall, 421 F.2d 540, 544-545 (2d
Cir. 1969), cert. denied, 397 U.S. 990 (1970), quoted in Steigler v.
Anderson, 496 F.2d 793, 799 (3d Cir.), cert. denied, 419 U.S. 1002
(1974).  See also United States v. Kennedy, 573 F.2d 657, 660 (9th
Cir. 1978) ("The relevant inquiry * * * is whether a reasonable person
would have believed himself to be" under arrest.).

   Here, there is little basis for a conclusion that respondent could
have reasonably believed that he was under arrest.  Respondent's
mother was told that the officers had an arrest warrant, but there
appears to be no evidence that respondent was told, before he made his
statement, that the officers had a warrant or that they had come to
the house for the purpose of arresting him.  The officers testified
(J.A. 10, 27) that they subjectively considered respondent to be under
arrest at the time they interviewed him at this residence, but that is
immaterial if the officers did not lead respondent to believe that he
was under arrest.

   Accordingly, the most that can be said is that the brief
questioning at respondent's residence constituted a borderline
violation of Miranda.  This was plainly insufficient to draw into
question the validity of respondent's subsequent waiver of his Miranda
rights.  Miranda requires that a suspect, after having been advised of
his rights, "knowingly and intelligently waive() his privilege against
self-incrimination and his right to * * * counsel" (384 U.S. at 475).
It is easy to see why Westover's ability to make such a waiver was
impaired by the previous course of interrogation.  /2/ But there is no
reason to suppose that respondent even knew that he had been subjected
to custodial interrogation.  The interrogation in issue -- a few
questions, asked in an unthreatening manner in his living room with
his parents nearby -- could not possibly have impaired his ability to
decide whether he wished to cooperate with the authorities.  When he
later received Miranda warnings, therefore, he had no reason to doubt
that he was indeed free to terminate questioning or seek counsel if he
wished.  The court below identified nothing else about "'the
particular facts and circumstances (of the) case, including the
background, experience, and conduct of the accused'" (North Carolina
v. Butler, 441 U.S. 369, 374-375 (1979), quoting Johnson v. Zerbst,
304 U.S. 458, 464 (1938);  see Edwards v. Arizona, 451 U.S. 477, 486
n.9 (1981)) that might draw the validity of the waiver into question.

   For these reasons, the Court of Appeals manifestly erred in
suggesting that respondent's waiver of his Miranda rights was not
effective.  The most likely explanation of this error is that the
court confused this issue with the analytically distinct question
whether respondent's second statement was "tainted by" or was the
"fruit of" the first statement.  That is, the court probably believed
not that the prior questioning impaired respondent's ability to give a
valid waiver but that respondent's previous answer -- his statement "I
was there" -- rendered involuntary his subsequent decision to waive
his Miranda rights and speak.

   But as we have explained, this reasoning rests on a misconception.
If respondent was induced to waive his Miranda rights by the knowledge
that he had already made an incriminating statement to the officers,
that did not make his waiver any less voluntary.  Indeed, the fact
that the authorities already possess incriminating evidence might well
be a good reason for a suspect to decide to waive his rights and speak
to them.  The only substantial question concerning the admissibility
of respondent's second statement is, therefore, not whether the waiver
was valid but whether the admission of that statement is inconsistent
with the "fruits" doctrine and the policies underlying it.

   C. An Otherwise Admissible Statement Should Not Be Excluded From
Evidence Solely Because It Is The Product Of A Statement Obtained In
Violation Of Miranda When There Is No Substantial Probability That The
First Statement Was Compelled

   Miranda generally requires the exclusion from the prosecution's
case-in-chief of a statement obtained through custodial interrogation
without the proper warnings and waiver.  But this Court has never
decided whether evidence derived from such a statement -- such as
physical evidence or the testimony of witnesses whose existence is
disclosed by the statement -- must also be suppressed.  In Michigan v.
Tucker, 417 U.S. 433 (1974), the Court held that the testimony of a
witness discovered through a statement obtained in violation of
Miranda was admissible;  but the basis of the decision in Tucker,
while highly relevant here, did not resolve the broad question whether
the "fruits" of a Miranda violation may generally be admitted.
Massachusetts v. White, aff'd by an equally divided Court, 439 U.S.
280 (1978), and Massachusetts v. Meehan, cert. dismissed as
improvidently granted, 445 U.S. 39 (1980), concerned the admissibility
of physical evidence derived from a statement obtained in violation of
Miranda, but the Court did not decide the question in either case.

   The question presented in this case -- the admissibility of a
subsequent statement by the suspect alleged to be the fruit of a prior
statement that is inadmissible under Miranda -- is obviously closely
related to the question presented by fruits consisting of physical
evidence or the testimony of witnesses.  Indeed, in one respect at
least, the argument for admitting the fruit is strongest in this
context.  Once a suspect has made a statement that is inadmissible
under Miranda, he is powerless to prevent the authorities from
uncovering any physical evidence or the testimony of witnesses to
which his inadmissible statement might lead;  but he can prevent them
from deriving any subsequent statement simply by refusing to speak
further.

   In the Brief for the United States as Amicus Curiae in Michigan v.
Tucker, supra, we urged that the Miranda exclusionary rule should be
limited to the improperly obtained statements themselves and should
not extend to fruits.  /3/ We adhere to that position, but we do not
repeat the argument here because we believe that the decision of the
court below can be reversed on the narrower grounds -- either that the
written confession was not in fact a product of the prior,
inadmissible statement or that, even if it was, there is no
justification for excluding it when the initial Miranda violation
involved no substantial risk of actual compulsion.

   1. Whatever the correct scope of the "fruit of the poisonous tree"
doctrine in this case, respondent's second statement cannot be
suppressed as a fruit unless it is causally connected to the first,
inadmissible statement.  That is, if it is established that respondent
would have given his written confession even if he had not previously
made an incriminating statement to the officers, the written statement
cannot be considered a fruit and excluded from evidence on that basis.

   The trial court found that "the evidence shows that there was no
taint between the first statement 'I was there' and the second
(statement).  * * * (T)here's no showing of any taint whatsoever"
(J.A. 37-38).  There are several reasons to accept this determination.
 First, respondent's first statement did not, in fact, let the cat out
of the bag;  it is implausible to suppose that respondent actually
believed that he had nothing more to lose once he made the first brief
remark.  It requires little legal sophistication to realize that an
admission that one was present at the scene of a crime is not
tantamount to an admission that one was involved in it.  A layman, in
fact, is probably likely to overestimate the extent to which he can
escape criminal liability or punishment by showing that he was only
complicit in an offense and was not the instigator or the principal
actor.  Nor is there any evidence that respondent was aware of the
probative value of oral statements to police officers;  many suspects
are not, and Miranda itself requires a warning that a statement may be
used against an accused precisely because the Court assumed that many
suspects will be ignorant of this fact (see 384 U.S. at 468-469).

   Second, there is no evidence that the officers used the first
statement as part of their efforts to obtain the second statement.  It
appears that the officers did not mention the first statement to
respondent during the stationhouse questioning or attempt to convince
him that he had nothing more to lose by providing a full account of
his actions.

   Finally, as we have explained, respondent's second statement was
preceded by a fully valid waiver of Miranda rights.  This means, among
other things, that respondent was specifically told that he did not
have to speak to the officers, and that he understood this warning.
His situation was therefore materially different from that of a
suspect who may believe that he has some obligation to explain away
his prior statement.  Respondent's valid waiver further diminishes the
likelihood that he was induced to speak by the knowledge that he had
already made a statement to the officers.

   2. Nonetheless, for the remainder of our discussion we will assume
that respondent's written confession was the product of his prior
inadmissible oral statement;  that is, we assume that respondent would
not have given the written confession had he not already made the
limited admission that he was present at the scene of the burglary.
It does not follow that the written confession must be suppressed.  On
the contrary, we submit that because it is clear that the first
statement, although inadmissible under Miranda, was voluntary, the
second statement should not be suppressed merely because it was a
product of the first.

   As the concurring opinion below suggested, the proliferation of
figures of speech in this area -- "fruit of the poisonous tree,"
"attenuation of taint," "cat out of the bag" -- has tended, to a
degree to obscure analysis.  The problem is further complicated
because a confession may be excluded not only as the product of a
prior coerced confession -- a Fifth Amendment issue -- but as the
product of a prior Fourth Amendment violation.  See, e.g., Brown v.
Illinois, 422 U.S. 590 (1975);  Wong Sun v. United States, 371 U.S.
471 (1963).  But "(t)he considerations underlying the Fifth Amendment
'fruits' doctrine are not necessarily the same as those relevant in
the Fourth Amendment context" (Pillsbury Co. v. Conboy, No. 81-825
(Jan 11, 1983), slip op. 7-8 n.3 (Blackmun, J., concurring)), and the
"fruits" analysis that is familiar and relatively well-established in
the Fourth Amendment area cannot simply be carried over bag and
baggage to a case like this.  See United States v. Bayer, 331 U.S.
532, 541 (1947) (The Fourth Amendment exclusionary rule concerns
"evidence of a quite different category and do(es) not control this
question.").

   a. i. We do not dispute that when the authorities induce a suspect
to make a further statement by using a previous statement that was
actually compelled, the second statement is also inadmissible.  In his
separate opinion in Darwin v. Connecticut, 391 U.S. 346, 350-351
(1968), a case that involved an involuntary confession obtained
through custodial interrogation, Justice Harlan gave an explanation of
the basis of this rule:  /4/

         A principal reason why a suspect might make a second or third
      confession is simply that, having already confessed once or
      twice, he might think he has little to lose by repetition.  If a
      first confession is not shown to be voluntary, I do not think a
      later confession that is merely a direct product of the earlier
      one should be held to be voluntary.  It would be neither
      conducive to good police work, nor fair to a suspect, to allow
      the erroneous impression that he has nothing to lose to play the
      major role in a defendant's decision to speak a second or third
      time.

         In consequence, when the prosecution seeks to use a
      confession uttered after an earlier one not found to be
      voluntary, it has, in my view the burden of proving not only
      that the later confession was not itself the product of improper
      threats or promises or coercive conditions, but also that it was
      not directly produced by the existence of the earlier
      confession.

The primary objective of any "fruits" rule in this context, therefore,
should be to exclude statements that are the product of prior
compelled statements.  But it is of course well established that not
every statement obtained in violation of Miranda has been compelled
within the meaning of the Self-Incrimination Clause.  See, e.g.,
Tucker, 417 U.S. at 444-446;  Harris v. New York, 401 U.S. 222 (1971);
 Johnson v. New Jersey, 384 U.S. 719, 729-730 (1966);  Miranda, 384
U.S. at 457.  This objective, therefore, does not necessitate a rule
excluding from evidence the fruits of statements that are inadmissible
solely because they have been obtained in violation of Miranda.

   ii. In addition, the Court has made it clear that the Miranda rules
serve a deterrent purpose.  See, e.g., Oregon v. Hass, 420 U.S. 714,
723 (1975);  Tucker, 417 U.S. at 446-447.  But it is important to be
clear about what the Miranda exclusionary rule is designed to deter.
This is one respect in which it is incorrect to draw a close parallel
between the Miranda rules and the Fourth Amendment exclusionary rule.
The Fourth Amendment exclusionary rule (including its fruits doctrine)
is designed to deter all unreasonable searches, to the extent that is
practicable, because all unreasonable searches violate the
Constitution.  Miranda, however, is not designed to deter all
custodial interrogation without warnings.  Police officers do not
violate any constitutional provision, threaten any constitutional
value, act improperly in any way -- or, indeed, violate any stricture
of the Miranda opinion -- if they conduct non-abusive custodial
interrogation without giving Miranda warnings.  All that Miranda
requires is that the resulting statements not be admitted into
evidence.  This is because the Fifth Amendment privilege -- which is
the foundation of Miranda -- does not prohibit the authorities from
compelling incriminating statements;  the Self-Incrimination Clause is
violated only when a compelled statement is used against the speaker
during a criminal presecution.

   It follows that even if officers deliberately decide to conduct
questioning without warnings in circumstances that they know might be
deemed custodial, they have not engaged in an improper practice so
long as they have not acted abusively.  Cf. Massiah v. United States,
377 U.S. 201, 206-207 (1964).  In fact, it is not difficult to imagine
instances -- if a suspect in custody is thought to know the location
of a kidnapping victim or a bomb that is about to explode, for example
-- where the far better police practice might be to conduct the
interrogation without warnings, thus rendering inadmissible any
statement that is obtained but increasing the likelihood that the
suspect will speak.  Accordingly, the primary "deterrence" objective
of the Miranda exclusionary rule -- including any rule concerning the
fruits of a Miranda violation -- is not to deter police from
questioning suspects in custody without warnings, but rather to deter
abusive police practices.

   b. As we have noted, this Court has not yet resolved the question
whether fruits of voluntary statements obtained in violation of
Miranda are generally admissible.  See Tucker, 417 U.S. at 446.  But
United States v. Bayer, supra, strongly suggests that the Court would
not require the suppression of every statement that is the product of
a prior voluntary statement inadmissible under Miranda.  In Bayer, the
authorities questioned a suspect in custody under circumstances that
were assumed to violate a prophylactic rule that served purposes
similar to those of Miranda -- the rule of McNabb v. United States,
318 U.S. 332 (1943), which excluded evidence obtained from a defendant
who was not brought before a magistrate without undue delay (compare
384 U.S. at 463 with 318 U.S. at 342-345).  Subsequently, the
authorities obtained a further statement under circumstances that were
not themselves suspect but that left little doubt that the second
statement was the product of the first.  /5/ This Court reversed a
ruling that the second statement was inadmissible, reasoning as
follows (331 U.S. at 540-541):

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

   It would appear to follow from the holding in Bayer that subsequent
statements that are the product of statements obtained in violation of
Miranda may nevertheless be admissible on at least some occasions.
Consequently, leaving aside the possibility of a general rule that all
such fruits are admissible, application of the fruits doctrine must
involve some inquiry into the particular facts of the case.  We note
that such an inquiry does not impair the certainty and rigidity that
are sometimes thought to be a principal virtue of Miranda:  /6/ while
it is generally desirable to have relatively clear and mechanical
rules to guide police behavior, a doctrine governing the admissibility
of fruits -- in this or other contexts (e.g., United States v.
Ceccolini, 435 U.S. 268 (1978)) -- is not a guideline for police
behavior but a principle for courts to apply in delineating rules of
evidence.

   c. We submit that exclusion of an otherwise admissible voluntary
statement as a fruit of a Miranda violation is justifiable, if at all,
only when there is a substantial probability that the Miranda
violation involved actual compulsion.  In our view, a rule admitting
the second statement when the first was clearly not compelled cannot
undermine the purposes of Miranda and the Self-Incrimination Clause.
/7/

   i. The first task of a "fruits" doctrine in this area, as we noted,
is to exclude the fruits of compelled statements.  This objective is
plainly not jeopardized by a rule allowing in evidence the fruits of
clearly voluntary prior statements like respondent's first statement
in this case.  To go further, and exclude every statement that is the
product of a prior statement inadmissible under Miranda, no matter how
clearly voluntary the prior statement, would unnecessarily suppress
much highly probative evidence.  The government may use voluntary
statements obtained in violation of Miranda in significant ways in
which it could not use compelled statements -- for example, to impeach
a defendant's testimony at trial.  Compare Mincey v. Arizona, 437 U.S.
385, 398 (1978), and New Jersey v. Portash, 440 U.S. 450 (1979), with
Harris v. New York, supra, and Oregon v. Hass, supra.  Similarly,
there is no sufficient reason to preclude the government from using
the fruits of statements that were obtained in violation of Miranda
but are plainly not coerced.

   ii. The decision in Miranda was largely rooted in the Court's
concern that the traditional voluntariness standard was difficult to
apply to incommunicado stationhouse interrogation in a way that gave
confidence in the reliability of the ultimate determination.  See,
e.g., 384 U.S. at 445, 461.  The only witnesses to such questioning,
generally, were the suspect and the police officers, neither of whose
testimony was entirely reliable.  Moreover, the inquiry into whether
the suspect's will was overborne by coercive interrogation tactics
sought to answer a subtle, elusive, subjective question about state of
mind -- a question that was made even more difficult because the
interrogating officers often employed sophisticated psychological
strategies, and because the correct answer depended upon nuances that
were impossible to reconstruct in court.  See id. at 448-458.  Under
these circumstances, there appeared to be an unacceptably high risk of
error in the determination of voluntariness, with a consequent danger
that the use of the confession would in fact involve an undetected
infringement of the constitutional privilege against
self-incrimination.

   These considerations, when combined with the principle that the
fruits of compelled statements are inadmissible, afford a rational
basis for excluding the fruits of a Miranda violation if the violation
consists of incommunicado police interrogation of a kind that creates
an appreciable possibility of undetected coercion.  But they provide
no justification for excluding the fruits of a Miranda violation when
the questioning occurs in a setting in which -- as with the
questioning at respondent's residence -- it can be reliably determined
that the initial statement was not actually compelled.  /8/

   iii. Permitting the admission of respondent's written confession
will not encourage police officers to engage in practices that are
even arguably abusive.  To begin with, many questionable police
practices in this area can be deterred under the rules governing the
waiver of Miranda rights, without resort to a fruits doctrine at all.
For example, if police officers conduct a prolonged stationhouse
interrogation without warnings, in order to obtain a statement (itself
inadmissible under Miranda) that can be used to elicit a second
confession after the suspect has been given proper warnings, Westover
would ensure the failure of their strategy;  the waiver that preceded
the second statement would plainly be invalid.  In all likelihood, the
officers would have to release the suspect or allow him substantial
contacts with outsiders before they could attempt to take advantage of
the prior statement.  Knowing this, the officers would be unlikely to
engage in such a practice in the first place.

   But even if it is thought that it will sometimes be necessary to
rely on a Miranda fruits exclusionary principle in order to deter
abusive police practices, there is no justification for suppressing a
subsequent statement derived from a prior inadmissible statement when
-- as here -- there is no substantial probability that the first
statement was coerced.  The abusive police practices with which
Miranda is concerned are those that are likely to create a substantial
risk of coercion.  To the extent that the decision to admit a fruit
depends on whether there was a substantial probability of coercion,
law enforcement officers have no incentive to create a situation that
is even arguably coercive.

   iv. Finally, admitting respondent's written confession does not
offend against any of the values underlying the Self-Incrimination
Clause;  in no meaningful sense can it be said that if respondent's
written confession is admitted he will have been compelled to testify
against himself.  Indeed, the admission of a subsequent statement in a
case such as this seems even more clearly consistent with the
principles of the Self-Incrimination Clause than the admission of
other fruits of a Miranda violation, such as physical fruits or a
witness's testimony.

   That is because, in this case, the incriminating evidence against
respondent resulted not solely from a decision to speak made without
benefit of Miranda warnings, but from a subsequent "exercise of 'a
rational intellect and a free will'" (Mincey, 437 U.S. at 398
(citation omitted).  Moreover, before respondent spoke at the
stationhouse he made, as we have shown, a fully effective waiver of
his Miranda rights.  In other words, before respondent decided to
produce the testimonial evidence that the State now seeks to use
against him, he fully understood that he did not have to speak, and he
voluntarily and intelligently chose to do so nonetheless.  It is
difficult to see why the principles of the Self-Incrimination Clause
should require the suppression of a statement given in these
circumstances.

   At bottom, the complaint of a suspect in respondent's position is
not that he was coerced but that he did not know the evidentiary
status of his prior statement.  If respondent knew that his first
statement was inadmissible, he could not possibly contend that his
second statement should be suppressed.  See McMann, 397 U.S. at 768.
But the Self-Incrimination Clause does not require the exclusion of
statements that are made because a suspect is not fully aware of what
evidence can and cannot be used at his trial.  Cf. Beheler, slip op. 5
n.3;  Schneckloth v. Bustamonte, 412 U.S. 218, 226-227, 234 (1973).
If, for example, police officers induced a defendant to confess by
confronting him with another party's inadmissible hearsay statement,
the confession would not be suppressed.  There is no reason for a
different result in this case, where coercion is, similarly, wholly
lacking, and the inadmissibility results from what can fairly be
described as at most a technical violation of Miranda.  /9/

                              CONCLUSION

   The judgment of the Oregon Court of Appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   DAVID A STRAUSS

      Assistant to the Solicitor General

   MAY 1984

   /1/ See pages 19-21, infra.  Justice Harlan, in his opinion in
Darwin v. Connecticut, 391 U.S. 346, 350-351 (1968), drew this
distinction between a subsequent statement that is itself voluntary
and is inadmissible only because it is the product of a prior,
involuntary statement, and a subsequent statement this is involuntary
because the conditions that compelled the first statement persist.
See also McMann v. Richardson, 397 U.S. 759, 769 (1970).

   /2/ Westover was subjected to the "inherently compelling pressures"
(Miranda, 384 U.S. at 467) and the "badge of intimidation" (id. at
457) of the custodial environment for an extended period;  the mere
giving of warnings could reasonably be thought unlikely to restore his
capacity to decide whether he wished to discuss his alleged offense
with the authorities.  Similarly, having been subject to the
"interrogator's imprecations * * * that the interrogation will
continue until a confession is obtained" (id. at 468), it is more than
possible that Westover would not fully believe, when he was finally
given warnings, that he actually was free to terminate questioning if
he wished.

   /3/ Copies of our brief in Tucker have been sent to the parties.
We also relied on our brief in Tucker as the basis of part of our
submission in New York v. Quarles, No. 82-1213 (argued Jan. 18, 1984).

   /4/ This rule is well established in cases in which the source of
compulsion is irregular police practices during custodial
interrogation.  How and whether the rule should apply when the source
of compulsion is legal process (for example, compelled grand jury
testimony under a grant of immunity) are difficult and uncertain
questions.  See generally Pillsbury Co. v. Conboy, supra.  On the one
hand, under the rule of Counselman v. Hitchcock, 142 U.S. 547 (1892),
the privilege against self-incrimination extends not only to a
compelled statement but to evidence derived from it.  See also
Kastigar v. United States, 406 U.S. 441, 453-454 (1972);  Murphy v.
Waterfront Commission, 378 U.S. 52, 79 (1964).  It might be said that
a subsequent voluntary statement by the witness can be "derived" from
his prior compelled testimony just as physical evidence, or the
testimony of another person, can be so derived.

   On the other hand, a subsequent voluntary statement by the witness
is, by hypothesis, the product of an independent, deliberate decision
to speak.  The nexus between the compulsion and the derivative
evidence is, therefore, much different from the case of derived
physical evidence.  In addition, a subsequent statement is the product
not just of the prior statement but of the witness's ignorance about
the evidentiary status of the prior statement.  If a witness knew that
his compelled statement could not be used against him, he would surely
not be heard to claim that a subsequent voluntary statement was
derived from the compelled statement.  (Witnesses who are compelled to
speak by legal process, unlike those compelled by police practices,
are typically told that they have use immunity and therefore are
seldom ignorant of the fact that their statement is inadmissible.
This is presumably why questions parallel to those presented by this
case seldom arise in the context of testimony compelled by judicial
process.)

   The fact that ignorance and not just compulsion is the source of
the subsequent statement suggests that due process doctrines concerned
with fairness -- in addition to, or perhaps instead of, doctrines
concerned with compelled self-incrimination -- are the source of the
rule excluding subsequent voluntary statements derived from prior
compelled statements.  Justice Harlan's remarks, quoted in text,
suggest as much.

   /5/ The Court explained (331 U.S. at 540) that after his first
statement the suspect volunteered some additional facts, and the
meeting at which the second statement was obtained "was to incorporate
the whole story in one statement.  * * * (The suspect) requested the
original statement and read it before making the second.  The (second)
statement is labelled a 'supplementary' statement and is 'basically'
the same as the earlier one but went into more detail."

   /6/ We believe these virtues are substantially overstated.  The
question whether a suspect is "in custody" for Miranda purposes is not
one that can be resolved by the use of a bright-line standard.  See
Florida v. Royer, No. 80-2146 (Mar. 23, 1983), slip op. 15 (plurality
opinion).  See also United States v. Harris, 611 F.2d at 172;  United
States v. Jimenez, 602 F.2d 139, 143 (7th Cir. 1979);  United States
v. Kennedy, 573 F.2d at 660;  United States v. Del Soccorro Castro,
573 F.2d 213, 215 (5th Cir. 1978);  Steigler v. Anderson, 496 F.2d at
799-800;  United States v. Hall, 421 F.2d at 541.

   Moreover, under Harris v. New York, 401 U.S. 222 (1971), in order
to decide whether a statement obtained in violation of Miranda can be
used for impeachment, a court must inquire into the particular
circumstances involved to determine if the statement was voluntary.

   /7/ The admission of fruits in these circumstances is not
inconsistent with Harrison v. United States, 392 U.S. 219 (1968).  In
that case, the government introduced into evidence at trial three
confessions made by the defendant.  The defendant then testified in
his own behalf.  On appeal, the confessions were held to be
inadmissible, although not because they had been coerced.  On retrial,
the government was permitted to introduce a transcript of the
testimony the defendant had given at the first trial.  This Court,
finding that the defendant's testimony at the first trial was at least
in part the fruit of the improper admission of his confessions at that
trial (id. at 224-226), held the testimony inadmissible.

   In Harrison, however, the Court explicitly relied not just on the
need to deter the government from obtaining confessions improperly,
but on "'the imperative of judicial integrity'" (392 U.S. at 224 n.10
(quoting Elkins v. United States, 364 U.S. 206, 222 (1960)).  Harrison
is crucially different from this case (even assuming that respondent's
second statement was the product of his earlier utterance) because in
Harrison the trial court erred in sustaining the government's efforts
to have the confessions admitted into evidence and as a result of that
error the government was able to obtain a further damaging statement.
There is an interest in preventing the defendant from being prejudiced
by an erroneous judicial ruling that is quite distinct from the
interests implicated in the present case.

   /8/ It is true, of course, that a suspect has the right to Miranda
warnings whenever he is subjected to custodial interrogation, even in
circumstances in which there is little or no risk of actual
compulsion.  But this aspect of Miranda is based, we believe, on the
need to specify an identifiable line that will facilitate
administration of the rule by the police, not on the concern about
undetected coercion that is at the heart of Miranda.  As we have noted
(pages 24-25, supra), the need to define a clear standard is a far
less important concern in the context of expounding a "fruits"
doctrine.

   /9/ It appears that the admission into evidence of respondent's
written confession would constitute no significant innovation in the
way Miranda is now applied by the courts of appeals.  In cases in
which a defendant made two confessions, the first of which was
voluntary but inadmissible under Miranda, the courts of appeals appear
consistently to have inquired only into whether the second statement
was preceded by a valid waiver.  They have, in general, not
independently considered whether the second statement should be
suppressed as a fruit.  See, e.g., United States v. Packer, 730 F.2d
1151, 1157-1158 (8th Cir. 1984);  Bartlett v. Allen, 724 F.2d 1524,
1527-1528 (11th Cir. 1984);  United States v. Bowler, 561 F.2d 1323,
1326 (9th Cir. 1977);  United States v. Toral, 536 F.2d 893, 896-897
(9th Cir. 1976);  Knott v. Howard, 511 F.2d 1060, 1061 (1st Cir.
1975);  United States v. Hale, 397 F.2d 427, 429-431 (7th Cir.), cert.
denied, 393 U.S. 1067 (1968);  United States v. Knight, 395 F.2d 971,
973-975 (2d Cir. 1968), cert. denied, 395 U.S. 930 (1969).