## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 17 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant, v. SAMUEL FRANCIS PATANE, Defendant-Appellee. No. 01-1503

Appeal from the United States District Court

for the District of Colorado (D.C. No. 01-CR-228-WM)
Joseph C. Wyderko, Attorney, Criminal Division, U.S . Department of Justice, Washington, D.C. (John W. Suthers, United States At torney; Suneeta Hazra and Sean Connelly, Assistant United States Attorneys, D enver, Colorado, with him on the briefs), for Plaintiff-Appellant. Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Co lorado, for DefendantAppellee.

Before EBEL , ANDERSON , and HENRY , Circuit Judges.

EBEL , Circuit Judge.- 2 -

The Government appeals from the district court’s or der suppressing the physical evidence against Samuel Francis Patane on charges of gun possession by a felon. The district court based its suppression order on its conclusion that the evidence was insufficient to establish probable cau se to arrest Patane. We conclude, contrary to the district court, that prob able cause existed to arrest Patane. However, we affirm the district court’s or der on the alternative ground that the evidence must be suppressed as the physica l fruit of a Mirandaviolation.

I. BACKGROUND Patane was indicted for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The district c ourt held a suppression hearing at which the police investigation leading to discov ery of the gun was detailed. Ruling from the bench a week later, the court grant ed defendant’s motion to suppress. Patane’s arrest resulted from the inters ection of two essentially independent investigations – one by Colorado Spring s Detective Josh Benner regarding Patane’s gun possession, and another by C olorado Springs Officer Tracy Fox regarding Patane’s violation of a domesti c violence restraining order. The story begins when Patane was arrested for haras sing and menacing his ex-girlfriend, Linda O’Donnell. He was released on bond from the El Paso, Colorado county jail on June 3, 2001, subject to a temporary restraining order.- 3 -

The restraining order is not in the record, but unc ontroverted testimony indicates that it forbade Patane to contact O’Donnell, in per son or by phone, directly or indirectly, in the 72 hours after his release on bo nd. On June 6, an agent with the federal Bureau of Alco hol, Tobacco, and Firearms telephoned Detective Benner, a member of a local police drug interdiction unit that worked closely with the ATF. The agent said that a county probation officer had told him that Patane was a co nvicted felon who also had been convicted on a domestic violence charge, and t hat Patane possessed a Glock .40 caliber pistol. The record does not reveal how the probation officer knew that Patane had the gun. Detective Benner called O’Donn ell to inquire about the gun, and she told him that Patane had the pistol with hi m at all times. Seemingly by coincidence, at the moment Benner call ed O’Donnell to ask about the gun, Officer Fox had arrived at O’Donnell ’s residence, responding to a call from O’Donnell about an alleged violation of t he restraining order. O’Donnell told Officer Fox that two days earlier, O ’Donnell received a hang-up call. Using the *69 feature on her telephone, O’Do nnell learned that the call originated from a number that O’Donnell recognized as Patane’s home telephone. This call violated Patane’s restraining order, O’Do nnell stated, and she showed Officer Fox a copy of the order. O’Donnell said th at she was afraid for her safety, that she knew Patane regularly had a gun, a nd that Patane kept a list of- 4 -

people he wanted to kill. Officer Fox confirmed by computer that a restraining order had been issued. Officer Fox did not confirm O’Donnell’s use of the call tracing, although she had done so in a prior, unrelated case and thus was aware it was possible. Neither Officer Fox nor Detective Benner ran a crim inal background check on O’Donnell prior to Patane’s arrest, which Patane as serts would have revealed that O’Donnell was herself out on bond for carrying a co ncealed weapon, criminal trespass, theft, and criminal damage. Detective Benner and Officer Fox then spoke by phon e. Officer Fox said she planned to arrest Patane for violating the rest raining order by calling O’Donnell, and the two arranged to go to Patane’s h ouse. Officer Fox knocked on the door while Detective Benner went out back in case Patane attempted to flee. The woman who answered the door summoned Pat ane. Officer Fox asked Patane to step outside, which he did. She asked hi m about the hang-up call, and Patane denied having made the call or having contac ted O’Donnell in any way. Officer Fox told Patane that he was under arrest an d handcuffed him shortly afterward. With Patane arrested and handcuffed, Detective Benn er emerged from the back of the house and approached Patane. Detective Benner began advising Patane of his Mirandarights, but only got as far as the right to silenc e when- 5 -

Patane said that he knew his rights. No further Mi randawarnings were given, a fact which the Government concedes on appeal result ed in a Mirandaviolation. Detective Benner told Patane he was interested in w hat guns Patane owned. Patane replied, “That .357 is already in police cus tody.” Detective Benner said, “I am more interested in the Glock.” Patane said h e was not sure he should tell Detective Benner about the Glock pistol because he did not want it taken away. Detective Benner said he needed to know about it, a nd Patane said, “The Glock is in my bedroom on a shelf, on the wooden shelf.” De tective Benner asked for permission to get the gun, which Patane granted, an d Detective Benner went inside, found the gun where Patane described, and s eized it. Detective Benner then told Patane, as the detective later testified, that “I wasn’t going to arrest him for the gun at this time because I wanted to do som e more investigations.” Officer Fox took Patane to the police station and b ooked him for violating the restraining order. The next day, Detective Benner met with Patane’s pr obation officer and verified that Patane had a prior felony conviction for drug possession as well as a misdemeanor third degree assault conviction.- 6 - II. PROBABLE CAUSE On appeal, the Government argues that the district court erred in concluding that the police lacked probable cause to arrest Patane for violating the domestic violence restraining order. We agree with the Government. In reviewing the district court’s probable cause de termination, “we consider the evidence in a light most favorable to the distr ict court’s legal determinations, and review the court’s findings of historical fact for clear error. Absent any finding of fact, we will uphold the court’s legal d etermination if any reasonable view of the evidence supports it. We review the ul timate determinations of reasonable suspicion to stop and probable cause to arrest de novo.” United States
v. Treto-Haro , 287 F.3d 1000, 1002 (10th Cir. 2002) (citations o mitted). We have articulated the substantive probable cause standard as follows:

An officer has probable cause to arrest if, under t he totality of the circumstances, he learned of facts and circumst ances through reasonably trustworthy information that wou ld lead a reasonable person to believe that an offense has be en or is being committed by the person arrested. Probable c ause does not require facts sufficient for a finding of guilt ; however, it does require more than mere suspicion. United States v. Morris , 247 F.3d 1080, 1088 (10th Cir. 2001) (internal qu otation marks and citations omitted). The district court’s ruling that no probable cause existed to arrest Patane for violating the domestic violence restraining ord er was based on its view that- 7 -

domestic disputes often involve “claims and counter claims . . . thrown between people who have separated some sort of an intimate relationship,” and therefore that uncorroborated allegations arising from such d isputes are “just inadequate” to establish probable cause. Unexplored avenues of co rroboration noted by the court were: the failure to check telephone records to con firm O’Donnell’s allegation that a call had been placed from Patane’s residence to hers during the time frame covered by the restraining order, “verification whi ch presumably could have been done rather easily,” the failure to investigate O’D onnell’s credibility prior to the arrest, the failure to corroborate O’Donnell’s accu sations apart from Detective Benner’s confirmation that Patane indeed possessed a gun, which “has nothing to do with the crime for which he was arrested,” and t he failure to determine whether persons other than Patane had access to Pat ane’s telephone. The court also noted that “[i]t’s just one contact which . . . could, in my life experience, have been an innocent mistake” because “people do m ake calls to numbers with which they are familiar, not intending to make the call,” that Patane denied having contacted O’Donnell, and that O’Donnell delayed two days in reporting the call to the police. We reject any suggestion that victims of domestic v iolence are unreliable witnesses whose testimony cannot establish probable cause absent independent corroboration. We have stated, “when examining inf ormant evidence used to- 8 -

support a claim of probable cause for a . . . warra ntless arrest, the skepticism and careful scrutiny usually found in cases involving i nformants, sometimes anonymous, from the criminal milieu, is appropriate ly relaxed if the informant is an identified victim or ordinary citizen witness.” Easton v. City of Boulder , 776 F.2d 1441, 1449 (10th Cir. 1985); see also Guzell v. Hiller , 223 F.3d 518, 519-20 (7th Cir. 2000) (“Police are entitled to base an ar rest on a citizen complaint . . . of a victim . . . without investigating the truthfulne ss of the complaint, unless . . . they have reason to believe it’s fishy.” (citation s omitted)). See generally 2 Wayne R. LaFave, Search and Seizure § 3.4(a), at 209-11 (3d ed. 1996) (noting that “[b]y far the prevailing view” is that corrobo ration is not essential in victimwitness cases, and arguing “that when an average ci tizen tenders information to the police, the police should be permitted to assum e that they are dealing with a credible person in the absence of special circumsta nces suggesting that such may not be the case”). We find no basis for the suggestion that domestic v iolence victims are undeserving of the presumption of veracity accorded other victim-witnesses. Indeed, our decision in Easton forecloses such a position. In Easton , probable cause to arrest for child molestation was based on the accusations of two child witnesses, one five years old and the other three y ears old. We rejected as “an1 We noted in Easton that the accusations of the children contained

“significant” discrepancies, and even noted the pos sibility that their testimony would be inadmissible in court due to an inability to understand the oath, yet we held that the children’s accusations established pr obable cause. 776 F.2d at 1449- 50. - 9 - entirely unacceptable point of view” the argument t hat the children’s testimony was suspect, stating:

In a great many child molestation cases, the only a vailable evidence that a crime has been committed is the tes timony of children. To discount such testimony from the outs et would only serve to discourage children and parents from reporting molestation incidents and to unjustly insulate the perpetrator of such crimes from prosecution.
Easton , 776 F.2d at 1449. 1 A strict corroboration requirement in domestic violence cases would create precisely the same proo f problems we found dispositive in Easton

. In this case, neither the district court nor Patane point to any evidence in the record suggesting that O’Donnell lied about the purported hang-up call out of personal animosity against Patane arising from thei r failed relationship, let alone that the police were aware of such evidence at the time of arrest. For example, there was no evidence that O’Donnell had threatened to lie in such a manner, or that she had lied in such a manner in the past. To the contrary, there was evidence that Patane recently had been arrested for harassing and menacing O’Donnell after he threatened to kill her, that O’D onnell knew that Patane carried- 10 -

a gun and kept a list of persons (including police officers) he wanted to kill, and that O’Donnell feared that Patane would kill her. Admittedly, O’Donnell waited two days before reporting the hang-up call, a fact that could cast some doubt on the veracity of her report. However, we do not bel ieve that fact alone was sufficient to require the officers to treat her com plaint with special skepticism. In any event, we note that the officers here did co rroborate O’Donnell’s veracity in two respects. First, the district cour t found as fact that, prior to the arrest, Detective Benner had learned from a probati on officer that Patane possessed a gun. Second, Officer Fox verified that a restraining order had been issued against Patane. The mere fact that further corroboration was possible is not dispositive of whether the information availabl e would lead a reasonable person to believe that an offense had been committe d. At oral argument, Patane argued that, as a matter o f law, a single hang-up phone call could not constitute a violation of the restraining order. We disagree. As noted above, the evidence showed that the restra ining order forbade Patane to contact O’Donnell, directly or indirectly, in perso n or by telephone, and counsel for Patane conceded that multiple hang-up phone cal ls would amount to a violation of the restraining order. We find no bas is to conclude that a single call is not “contact” with the victim, or that a single call does not implicate the same concerns about intimidation and harassment that mul tiple calls would. Cf. 422 In light of our conclusion that the officers had probable cause to arrest

for violation of the restraining order, it is unnec essary to reach the Government’s alternative argument that the arrest was justified by probable cause to believe that Patane was a felon in possession of a gun. The dis trict court declined to decide whether the officers had probable cause to arrest o n the basis of Patane’s gun violation. (“[T]o allow the arresting officers af ter the fact to go back and scramble . . . for evidence that might justify an a rrest on another charge . . . would not be a good rule to establish . . . .”).) On appeal, the Government argued that this reasoning is foreclosed by United States v. Santana-Garcia , 264 F.3d 1188, 1192-93 (10th Cir. 2001) (officer’s subjectiv e belief as to non-existence of probable cause not dispositive); see also Treto-Haro , 287 F.3d at 1006 (same). Patane correctly conceded that the district court’s reasoning was erroneous in light of our precedent, and on appeal he argued onl y that the officers lacked probable cause to believe that he was a felon in po ssession of a gun. The district (continued...) - 11 - U.S.C. § 376hh(a), (b)(1) (“encourag[ing] States . . . to treat domestic violence as a serious violation of criminal law” by authorizing Attorney General to make grants to implement “mandatory arrest or proarrest programs and . . . policies for protection order violations”). We acknowledge that it is conceivable that a single hang-up call might result from careless rather than willful behavior. However, probable cause does not require certainty of guilt or even a preponderance of evidence of guilt, but rather only reasonably trust worthy information that would lead a reasonable person to believe an offense was committed. Morris , 247 F.3d at 1088. The possibility that the hang-up call her e was accidental does not defeat probable cause. Accordingly, we conclude that Patane’s arrest was s upported by probable cause to believe that Patane had violated the domes tic violence restraining order. 22 (...continued)

court did not reach this issue, and we decline to d o so in the first instance on appeal. - 12 - III. SUPPRESSION OF THE PHYSICAL FRUITS OF A MIRANDA VIOLATION Our conclusion that the district court erroneously based suppression of the gun on the absence of probable cause to arrest does not end our inquiry. Patane argues that suppression of the gun should be affirm ed because, even if the arrest was proper, the ensuing Mirandaviolation independently requires suppression of the physical evidence. The district held, and the Government concedes on appeal, that a Miranda violation occurred when the police questioned Patan e about his possession of a gun without administering the complete Miranda warnings. As explained above, this questioning led Patane to admit that he posses sed a gun in his bedroom, which admission in turn led immediately to seizure of the gun. The Government correctly concedes that Patane’s admissions in resp onse to questioning were inadmissible under Miranda , but argues that the physical fruit of the Miranda violation – the gun – is admissible. The district court determined that it was unnecessa ry to decide whether the physical fruits of a Mirandaviolation must be suppressed because it had concluded that the underlying arrest that led to th e confession was- 13 -

unconstitutional. Because we have reversed the con clusion that the arrest was unconstitutional, we are now squarely presented wit h the issue whether the gun should be suppressed in any event because it was ob tained as the fruits of an unconstitutionally obtained confession. This issue was fully briefed and presented below and it is again fully briefed on ap peal. Resolution of this issue involves our answering a purely legal question (i.e ., whether the physical fruits of a Mirandaviolation must be suppressed), a question that pot entially would render remand and further proceedings unnecessary. Thus, we now turn to that issue. Smith v. Plati , 258 F.3d 1167, 1174 (10th Cir. 2001). Below, we conclude that the physical evidence that was the fruit of the Mir andaviolation in this case must be suppressed.

A. Supreme Court precedent The Government relies primarily on two Supreme Cour t cases for its argument that the fruits doctrine does not apply to Mirandaviolations: Michigan v. Tucker , 417 U.S. 433, 445-46 (1974), and Oregon v. Elstad , 470 U.S. 298, 306 (1985). Both cases, it is true, declined to apply the fruits of the poisonous tree doctrine of Wong Sun v. United States , 371 U.S. 471, 485 (1963), to suppress evidence obtained from an un-Mirandized confession. However, both cases were predicated upon the premise that the Miranda rule was a prophylactic rule, rather- 14 -

than a constitutional rule. Elstad , 470 U.S. at 305 (“‘The prophylactic Miranda warnings are not themselves rights protected by the Constitution . . . .’” (quoting New York v. Quarles , 467 U.S. 649, 654 (1984)) (internal quotation mar ks omitted)); id. at 308 (“Since there was no actual infringementof the suspect’s constitutional rights , [Tucker ] was not controlled by the doctrine expressed in Wong Sun that fruits of a constitutional violation must be suppressed.” (emphasis added)); Tucker , 417 U.S. at 445-46 (distinguishing Wong Sun because “the police conduct at issue here did not abridge respon dent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege”). Because Wong Sun requires suppression only of the fruits of unconst itutional conduct, the violation of a prophylactic rule did n ot require the same remedy. However, the premise upon which Tuckerand Elstad relied was fundamentally altered in Dickerson v. United States , 530 U.S. 428 (2000). In Dickerson , the Supreme Court declared that Miranda articulated a constitutional rule rather than merely a prophylactic one. Id. at 444 (“Mirandaannounced a constitutional rule that Congress may not supersede legislatively.”); see id. at 432, 438, 440. Thus, Dickerson undermined the logic underlying Tucker and Elstad

.3 Mirandanonetheless applied because it was issued prior to Tucker’s trial.

In fact, the defendant received all the warnings la ter incorporated into the Miranda requirements except for the advice that he could receive free counsel if he was indigent. - 15 - Additionally, a close reading of Tucker and Elstad reveals other distinctions that lead us to conclude that those ca ses should not be given the sweeping reading the Government is asserting. We e xamine each decision below. Tuckerinvolved an un-Mirandized custodial interrogation that occurred prior to the issuance of the Miranda decision. 3 During the course of the interrogation, the defendant identified a relevant witness of whom the police previously had been ignorant. The defendant argued before the Court that the testimony of the witness so identified by the defen dant should have been barred as the fruit of the Mirandaviolation. The Court’s rejection of this argument rested largely on its conclusion that excluding the fruits of this confession would have minimal prophylactic effect because the officers we re acting in complete good faith under prevailing pre-Mirandalaw that barred only coerced confessions. After noting in the opening paragraph of the opinio n that the interrogation took place prior to Miranda , Tucker , 417 U.S. at 435, the Court explained:

The deterrent purpose of the exclusionary rule nece ssarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the def endant of some right. . . . Where the official action was pu rsued in complete good faith, however, the deterrence ration ale loses much of its force.- 16 - We consider it significant to our decision in this case that the officers’ failure to advise respondent of his right to appointed counsel occurred prior to the decision in Miranda

. Although we have been urged to resolve the broad qu estion of whether evidence derived from statements taken in v iolation of the Miranda rules must be excluded regardless of wh en the interrogation took place, we instead place our hold ing on a narrower ground. For at the time respondent was questioned these police officers were guided, quite rightly, b y the principles established in Escobedo v. Illinois

. . . . Id. at 447 (emphasis added, footnote omitted). The Co urt then noted that no coercion rendered the challenged testimony unreliab le. Id. at 449. The other Supreme Court case offered by the Governm ent to support its argument is Elstad , 470 U.S. at 306. In Elstad , the defendant made incriminating statements while in custodial interrogation prior t o the issuance of Miranda warnings. The police then administered Miranda warnings, and thereafter the defendant made further incriminating statements. T he issue in Elstad was whether the defendants post-Mirandized statements must be suppressed as the fruit of the earlier Mirandaviolation. Id. at 303. The Supreme Court held that suppression was not required, rejecting the view th at the post-warning statements were the unconstitutional product of “a subtle form of lingering compulsion, the psychological impact of the suspect’s conviction th at he has let the cat out of the bag.” Id. at 311. After repeating the now-suspect reasoning that a Miranda violation was not necessarily a constitutional viol ation and thus not controlled by the fruits doctrine of Wong Sun , the Court stated:- 17 - [T]he Mirandapresumption, though irrebuttable for purposes of the prosecution’s case in chief, does not requir e that the statements and their fruits be discarded as inheren tly tainted.

. . . . . . . . In deciding how sweeping the judicially im posed consequences of a failure to administer Miranda warnings should be, the TuckerCourt noted that neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be serv ed by suppression of the witness’ testimony. The unwarne d confession must, of course, be suppressed, but the Court ruled that introduction of the third-party witness’ testi mony did not violate Tucker’s Fifth Amendment rights. We believe that this reasoning applies with equal f orce when the alleged “fruit” of a noncoercive Miranda violation is neither a witness nor an article of evidence but th e accused’s own voluntary testimony. As in Tucker , the absence of any coercion or improper tactics undercuts the twin rationales–trustworthiness and deterrence–for a bro ader rule. Once warned, the suspect is free to exercise his ow n volition in deciding whether or not to make a statement to the authorities. The Court has often noted: A living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The living witness is an individual human personality whose attributes of will, percept ion, memory and volition interact to determine what testimony he will give. Id. at 307-09 (first emphasis added, alterations and i nternal quotation marks omitted). Elstad thus drew a distinction between fruits consisting of a subsequent confession by the defendant after having been fully Mirandized and fruits consisting of subsequently obtained “inanimate evid entiary objects.” Id. at 309. A subsequent, Mirandized confession need not be exc luded because it is the product of “volition ,” willingly offered up by a defendant who already had been4 See also Orozco v. Texas , 394 U.S. 324 (1969). In Orozco , the officers

interrogated a suspect in custody without giving Mi randawarnings, learning that the suspect owned a gun and where it was located. Id. at 325. Ballistics tests of the gun indicated that it had been used to commit a murder. Id. In a terse holding, the Court held that “the use of these admissions obtained in the absence of the required warnings was a flat violation of th e Self-Incrimination Clause of the Fifth Amendment as construed in Miranda .” Id. at 326 (emphasis added). The Court did not expressly consider whether the gu n and the ballistics evidence would be admissible on remand. However, one plausi ble reading of Orozco is that the reference to the unconstitutional “use” of the statements includes their use by police officers in obtaining the gun, as wel l as their introduction of the admission at trial. This reading of Orozco is reinforced by the Court’s subsequent opinion in Kastigar v. United States , 406 U.S. 441 (1972). Kastigarnoted that the privilege against self-incrimination “protects against any di sclosures which the witness reasonably believes could be used in a criminal pro secution or could lead to other evidence that might be so used,” id. at 445, and that “immunity from use and derivative use is coextensive with the scope of the privilege,” id. at 453. Indeed, in Mirandaitself the Court stated that “unless and until suc h warnings and waiver are demonstrated by the prosecu tion at trial, no evidence obtained as a result of interrogation can be used against him.” 384 U.S. 436, 454 (1966) (emphasis added). - 18 - made aware of his Mirandarights. Id. By implication, “inanimate evidentiary objects” would be excludable, because physical evid ence derived from the defendant’s un-Mirandized statement is not the prod uct of volition after a defendant has been Mirandized properly. 4 See id. at 347 n.29 (Brennan, J., dissenting) (“[T]oday’s opinion surely ought not be read as also foreclosing application of the traditional derivative-evidence presumption to physical evidence obtained as a proximate result of a Mirand aviolation. The Court relies5 There is a substantial argument that Elstad ought not even be treated as a

case involving application of the Wong Sun fruits doctrine in the first place, for precisely the reasons emphasized by Elstad in its volition discussion. In rejecting the argument that the second confession was the res ult of some “subtle form of lingering compulsion,” id. at 311, Elstad in effect concluded that the second confession was not evidence “obtained . . . as a di rect result” of the Miranda violation. Wong Sun , 371 U.S. at 485. In other words, the post-Mirand ized confession in Elstad was admitted because it was not(rather than despite the fact that it was ) the fruit of the poisonous tree.

6 We also recognize that Justice O’Connor argued th at the physical fruits of a Mirandaviolation were not subject to Wong Sun suppression in her preElstad concurrence in New York v. Quarles , 467 U.S. 649, 665-72 (1984) (O’Connor, J., concurring in the judgment in part a nd dissenting in part). As explained above, this argument was not adopted by t he Court in Elstad or in any (continued...) - 19 - heavily on individual ‘volition’ as an insulating f actor in successive-confession cases. . . . [This] factor is altogether missing in the context of inanimate evidence.” (citation omitted)). 5 While the reasoning regarding volition in Elstad ’s holding indicates that the physical fruits of a Mirandaviolation are subject to the Wong Sun fruits doctrine, we acknowledge that dicta elsewhere in the opinion has been cited for the contrary conclusion. See Elstad , 470 U.S. at 307 (“[T]he Mirandapresumption, though irrebuttable for purposes of the prosecution ’s case in chief, does not require that the statements and their fruits be dis carded as inherently tainted.”); id. at 308 (stating that Tucker ’s reasoning “applies with equal force when the alleged ‘fruit’ of a noncoercive Miranda violation is neither a witness nor an article of evidence but the accused’s own voluntary testimony”). 6 These passages,6 (...continued)

subsequent opinion of the Court. Justice O’Connor joined the majority opinion in Dickerson

. - 20 - in contrast to the volition discussion, provide onl y ambiguous support for the position for which they are cited. To the extent t hey do address the admissibility of the physical fruits of a Miranda violation rather than a subsequent Mirandized confession, they are dicta not part of the reasonin g of the holding. In any event, we do not suggest that the holding in Elstad relying on volition definitively establishes that the physical fruits of a Mirandaviolation must be suppressed. Rather, the essential point fo r our analysis is only that Elstad does not definitively establish the contrary rule. We think Justice White most accurately summarized the relevance of Elstad and Tuckerto the issue of suppression of the physical fruits of a Miranda violation:

In Michigan v. Tucker , this Court expressly left open the question of the admissibility of physical evidence obtained as a result of an interrogation conducted contrary to th e rules set forth in Miranda v. Arizona . Since that time, the state and federal courts have been divided on this question. Indeed, in Massachusetts v. White , 439 U.S. 280 (1978), this Court was evenly divided on the issue of the admissibility of physical evidence obtained from an interrogation that violat ed Miranda

.

. . . . While Elstad has been considered illuminating by some Courts of Appeals on the question of admissibility of physical evidence yielded from a Miranda violation, that decision did not squarely address the question presented here, a nd in fact, left the matter open.- 21 -

Patterson v. United States , 485 U.S. 922, 922-23 (1988) (White, J., dissentin g from denial of certiorari) (footnotes and citations omitted). It is true that, prior to Dickerson , the Tenth Circuit applied Tucker and Elstad to the physical fruits of a Miranda violation and concluded that suppression was not required because “[w]here the u ncounseled statement is voluntary . . . there is no fifth amendment violati on and the fruits may be admissible.” United States v. McCurdy , 40 F.3d 1111, 1117 (10th Cir. 1994) (internal quotations omitted). However, once again Dickerson has undercut the premise upon which that application of Elstad and Tuckerwas based because Dickerson now concludes that an un-Mirandized statement, eve n if voluntary, is a Fifth Amendment violation. Dickerson , 530 U.S. at 444. Accordingly, we reject the Government’s position th at Tuckerand Elstad foreclose suppression of the physical fruits of a M irandaviolation.

B. Lower court approaches Courts applying Dickerson have split on the proper application of Wong
Sun to the physical fruits of a Miranda violation. The Third and Fourth Circuits have ruled that the physical fruits of a Miranda violation never are subject to Wong Sun suppression. United States v. Sterling , 283 F.3d 216, 218-19 (4th Cir. 2002), cert. denied , 122 S. Ct. 2606 (2002); United States v. DeSumma , 272 F.3d- 22 -

176, 180-81 (3d Cir. 2001), cert. denied , 122 S. Ct. 1631 (2002); accord United
States v. Newton , 181 F. Supp. 2d 157, 179-81 & n.16 (E.D.N.Y. 2002 ); Taylor v.
State , 553 S.E.2d 598, 605 (Ga. 2001); State v. Walton , 41 S.W.3d 75, 88-90 (Tenn. 2001); cf. Abraham v. Kansas , 211 F. Supp. 2d 1308, 1323 (D. Kan. July 2002) (holding that “[a]lthough the Court’s holding in Dickerson seems to have altered this general rule [that fruits of a Miranda violation need not be suppressed],” the state court’s failure to suppress physical fruits was not an “unreasonable application of federal law” under 28 U.S.C. § 2254(d)(1)); Worden
v. McLemore , 200 F. Supp. 2d 746, 752-53 (E.D. Mich. 2002) (ho lding that state court’s failure to suppress physical fruits of Mira ndaviolation was not an unreasonable application of clearly established fed eral law because of “disagreement and confusion” among courts regarding application of Dickerson ). The First Circuit, by contrast, has ruled that the physical fruits of a Miranda violation must be suppressed in certain circumstanc es, depending on the need for deterrence of police misconduct in light of the cir cumstances of each case. United States v. Faulkingham , 295 F.3d 85, 90-94 (1st Cir. 2002). Below, we analyze the merits of each of these approaches. We conclude that the First Circuit is correct that the physical fruits of a Miranda violation must be suppressed where necessary to serve Miranda ’s deterrent purpose. However, we part company wit h the First Circuit in the application of that standa rd, because we conclude that- 23 -

Miranda ’s deterrent purpose requires suppression of the ph ysical fruits of a negligent Mirandaviolation. We therefore conclude that suppression of the gun in the present case was appropriate.
1. Sterling& DeSumma The Third and Fourth Circuits have concluded that t he fruits doctrine simply does not apply to Mirandaviolations even after Dickerson . United States v. Sterling , 283 F.3d 216, 218-19 (4th Cir. 2002), cert. denie d , 122 S. Ct. 2606 (2002); United States v. DeSumma , 272 F.3d 176, 180-81 (3d Cir. 2001), cert. denied , 122 S. Ct. 1631 (2002). Both of these cases held that the physical fruits of a Mirandaviolation were admissible. Sterling , 283 F.3d at 219 (shotgun found in vehicle as a result of Miranda violation); DeSumma , 272 F.3d at 180-81 (gun found in vehicle as a direct result of Miranda violation). Both Sterling and
DeSummarelied on substantially the same reasoning, focusi ng primarily on an isolated passage in Dickerson . Dickerson noted at the outset of the opinion that “Mirandaand its progeny in this Court govern the admissibi lity of statements made during custodial interrogation in both state a nd federal courts.” 530 U.S. at 432. Later in the opinion, in the course of reject ing various arguments supporting the erroneous view that Mirandawas not a constitutional decision, the Court stated: The Court of Appeals also noted that in Oregon v. E lstad we

stated that “[t]he Mirandaexclusionary rule . . . serves the- 24 - Fifth Amendment and sweeps more broadly than the Fi fth Amendment itself.” Our decision in that case – ref using to apply the traditional “fruits” doctrine developed i n Fourth Amendment cases – does not prove that Miranda is a nonconstitutional decision, but simply recognizes t he fact that unreasonable searches under the Fourth Amendment ar e differentfrom unwarned interrogation under the Fifth Amendment. Dickerson , 530 U.S. at 441 (emphasis added, citations and in ternal quotations omitted). Both Sterling and DeSummaviewed this language as amounting to an endorsement of the rule that the Wong Sun exclusionary rule does not apply to the physical fruits of a Mirandaviolation. Sterling , 283 F.3d at 219; DeSumma , 272 F.3d at 180. Sterling explained:

Although Dickerson held Mirandato be with Constitutional significance, Mirandaonly held that certain warnings must be given before a suspect’s statement s made during custodial interrogation can be admitted into evidence. In addition, we are of opinion that the Court’s ref erence to and reaffirmation of Miranda ’s progeny indicates that the established exceptions, like those in Tucker and Elstad , survive. Thus, the distinction between statements and derivative evidence survives Dickerson . In fact, Dickerson reiterated the distinction made in Elstad by stating that: “Our decision in that case – refusing to apply the tradi tional ‘fruits’ doctrine developed in Fourth Amendment cases – does not prove that Mirandais a nonconstitutional decision, but simply recognizes the fact that unreasonable searches unde r the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment.” 283 F.3d at 219 (emphasis in original, citation omi tted).- 25 -

There are at least two serious problems with the re asoning in DeSummaand Sterling . First, we respectfully disagree with their concl usion that Dickerson ’s reference to the controlling force of “Miranda and its progeny in this Court” forecloses the argument that the physical fruits of a Mirandaviolation may be suppressed. Although we agree that, based on this language, the holdings of Elstad and Tuckersurvive Dickerson , neither Elstad nor Tuckerinvolved the physical fruits of a Mirandaviolation; as explained above, Elstad expressly contrasted the subsequent confession it found admis sible from physical fruits, while Tuckerexpressly limited its holding to pre-Miranda interrogations. See
Patterson , 485 U.S. at 922-24 (White, J., dissenting from de nial of certiorari). By wholly undermining the doctrinal foundation upon wh ich those holdings were built, Dickerson effectively left Elstad and Tuckerstanding but prevented lower courts from extending their holdings. Of course, p rior to Dickerson many lower courts (including this one) already had expanded th e holdings of Elstad and Tuckerby concluding that Mirandaviolations do not require suppression of physical fruits, but Dickerson explicitly limited its saving language to Miranda ’s “progeny in this Court.” 530 U.S. at 432 (emphasis added). Far fr om endorsing pre-Dickerson lower court case law, then, Dickerson instead signaled the contrary view.7 Elstad also stated that a second way that Fourth Amendmen t violations

are different from Mirandaviolations is that only the former are constitutio nal (continued...) - 26 - The second fundamental problem with the reasoning i n DeSummaand Sterling is that the language that they rely on for the pro position that Dickerson endorsed the extension of Elstad to physical fruits in fact said only that Elstad “recognizes . . . that unreasonable searches under the Fourth Amendment are differentfrom unwarned interrogation under the Fifth Amendm ent.” Dickerson , 530 U.S. at 441 (emphasis added). The critical que stion, of course, is how the two are different. At oral argument in the present case, the Government argued only that the way that Fourth Amendment violations differ from Fifth Amendment violations is that the Wong Sun fruits doctrine applies to the former and not the latter. This argument already has been rejected by the Supreme Court. Nix v. Williams , 467 U.S. 431, 442 & n.3 (1984) (noting that the C ourt has applied the fruits doctrine to violations of the Fifth Amendmen t, citing Murphy v. Waterfront
Comm’n , 378 U.S. 52, 79 (1964)); Kastigar v. United State s , 406 U.S. 441, 460- 61 (1972). Although Dickerson itself does not explain how searches under the Fourth Amendment are “different,” Elstad does just that: “a procedural Miranda violation differs in significant respects from viol ations of the Fourth Amendment, which have traditionally mandated a broad application of the ‘fruits’ doctrine.” 470 U.S. at 306 (emphasis added). 7 This language indicates that Miranda7 (...continued)

violations. 470 U.S. at 305-07. This difference, of course, is one that Dickerson itself rejects. - 27 - violations are “different” because a narrowed application of the fruits doctrine applies to Mirandaviolations, not because the fruits doctrine does n ot apply at all. Cf. id. at 306 (referring to “[t]he Miranda exclusionary rule”). Of course, Elstad ’s explanation of how application of the fruits doc trine is “different” in Mirandacases begs the question of what a “broad” applicat ion means. We conclude that the broad application of t he fruits doctrine is that defined in Nix : “the prosecution is not to be put in a better pos ition than it would have been in if no illegality had transpired.” 467 U.S. at 443. Application of the fruits doctrine in the Mirandacontext is not “broad” because a number of exceptions to this pure rule have been recognized, circumstances where the prosecution is permitted to benefit from the Mirand aviolation. See Elstad , 470 U.S. at 314; Tucker , 417 U.S. at 447-48; New York v. Quarles , 467 U.S. 649, 657 (1984) (unwarned answers “to questions in a situati on posing a threat to the public safety” may be used); Harris v. New York , 401 U.S. 222, 225-26 & n.2 (1971) (unwarned statements may be used for impeach ment on crossexamination). One could argue that further narrowing of the pure fruits doctrine in the Mirandacontext – narrowing beyond that already effectuate d by the holdings of8 Tucker ’s narrowing would seem no longer applicable becaus e it appeared

to establish an exception only for questioning that pre-dated Mirandaitself. Elstad ’s narrowing would still have applicability today b ecause it declined to apply the fruits exclusion to a subsequent voluntary confession rendered after the Mirandawarnings are given. - 28 - Elstad and Tucker 8 – also is appropriate. However, we are unpersuade d that the additional narrowing articulated in DeSumma and Sterling (refusing to apply the fruits exclusion to physical evidence obtained as a result of the illegally obtained confession) reflects a correct understanding of the way in which Miranda violations are, in Dickerson ’s words, “different” from Fourth Amendment violations. A blanket rule barring application of the fruits do ctrine to the physical fruits of a Mirandaviolation would mark a dramatic departure from Sup reme Court precedent. The Court consistently has recogn ized that deterrence of police misconduct, whether deliberate or negligent, is the fundamental justification for the fruits doctrine. Nix , 467 U.S. at 442-43 (“The core rationale consisten tly advanced by this Court for extending the exclusiona ry rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violat ions of constitutional and statutory protections.”); see also Elstad , 470 U.S. at 308 (identifying trustworthiness and deterrence as the two rationale s for a broad fruits suppression rule); Tucker , 417 U.S. at 447 (noting “the deterrent purpose of the exclusionary- 29 -

rule”). The Court also has been consistent in narr owing the scope of the fruits doctrine in the Mirandacontext only where deterrence is not meaningfully implicated. See Elstad , 470 U.S. at 308-09 (stating that admission of vol untary post-warning statements will not undercut deterrenc e because the suspect remains “free to exercise his own volition in deciding whet her or not to make a [postwarning] statement to the authorities”); Tucker , 417 U.S. at 447-48 (explaining that the “deterrence rationale loses much of its fo rce” in that case because the unwarned interrogation occurred prior to Miranda ’s issuance). In sharp contrast with Elstad and Tucker , however, the rule argued for by the Government here risks the evisceration of the d eterrence provided by the fruits doctrine, as this case well illustrates. As a practical matter, the inability to offer Patane’s statements in this case affords no d eterrence, because the ability to offer the physical evidence (the gun) renders the s tatements superfluous to conviction. See generally United States v. Kruger , 151 F. Supp. 2d 86, 101-02 (D. Me. 2001) (“The exclusion of the cocaine, the s ubstance – indeed essence – of the suppressed statements, is necessary to deter la w enforcement officers from foregoing the administration of Miranda warnings . . . .”), overruled by Faulkingham , 295 F.3d at 92-94; Yale Kamisar, On the “Fruits” of Miranda Violations, Coerced Confessions, and Compelled Test imony , 93 Mich. L. Rev. 929, 933 (1995) (“Unless the courts bar the use of the often-valuable evidence- 30 -

derived from an inadmissible confession, as well as the confession itself, there will remain a strong incentive to resort to forbidd en interrogation methods.”); David A. Wollin, Policing the Police: Should Mirand a Violations Bear Fruit ?, 53 Ohio St. L.J. 805, 843-48 (1992) (“Police officers seeking physi cal evidence are not likely to view the loss of an unwarned confessi on as particularly great when weighed against the opportunity to recover highly p robative nontestimonial evidence, such as a murder weapon or narcotics.”). The present case is hardly anomalous in this respect, as demonstrated by the m ultitude of reported cases where the record demonstrated that the interrogatin g authorities intentionally (and in some cases pursuant to official policy and train ing) violated a suspect’s Mirandarights in order to procure derivative evidence. E .g. , United States v.
Orso , 234 F.3d 436, 441 (9th Cir. 2000), aff’d in part, rev’d in part , 266 F.3d 1030 (9th Cir. 2001) (en banc); Henry v. Kernan , 197 F.3d 1021, 1026, 1028 (9th Cir. 1999); Pope v. Zenon , 69 F.3d 1018, 1023-24 (9th Cir. 1996), overruled by
Orso , 266 F.3d 1030; Cooper v. Dupnik , 963 F.2d 1220, 1224-27 (9th Cir. 1992); United States v. Carter , 884 F.2d 368, 373 (8th Cir. 1989); United States v. Esquilin , 42 F. Supp. 2d 20, 33 (D. Me. 1999), aff’d , 208 F.3d 315 (1st Cir. 2000). Further, the rule urged upon us by the Government appears to make little sense as a matter of policy. From a practical pers pective, we see little difference- 31 -

between the confessional statement “The Glock is in my bedroom on a shelf,” which even the Government concedes is clearly exclu ded under Mirandaand Wong Sun , and the Government’s introduction of the Glock fo und in the defendant’s bedroom on the shelf as a result of his unconstitutionally obtained confession. If anything, to adopt the Government’s rule would allow it to make greateruse of the confession than merely introducing the words themselves. Accordingly, we decline to adopt the position of th e Third and Fourth Circuits that the Wong Sun fruits doctrine never applies to Miranda violations.

2. Faulkingham With its recent decision in United States v. Faulki ngham , 295 F.3d 85 (1st Cir. 2002), the First Circuit rejected the Third an d Fourth Circuits’ blanket refusal to apply Wong Sun suppression to the fruits of a Mirandaviolation. Id. at 90-91. Faulkingham acknowledged, contrary to Sterling and DeSumma , that Dickerson ’s recognition that Mirandaviolations are constitutional violations strengthe ned the argument that their physical fruits must be suppres sed. Id. at 92-93. However, Faulkingham concluded that suppression of the fruits of a Mira ndaviolation was not required in every case. Rather, it adopted a r ule mandating suppression of the fruits of a Mirandaviolation in individual cases where “a strong need for deterrence” outweighs the reliability of that evide nce. Id. at 93. Because the- 32 -

physical fruits of a Mirandaviolation generally will be trustworthy evidence, it appears that in most cases the First Circuit’s anal ysis boils down to a rule excluding the fruits of a Mirandaviolation only when there is a “strong need for deterrence.” On each of Faulkingham ’s two basic points – that Dickerson alters the analysis regarding suppression of the fruits of a Mirandaviolation, and that suppression of the physical fruits is required wher e necessary to effectuate Miranda ’s deterrent purpose – we agree with the First Circ uit. For reasons already stated above, we conclude that each of thes e propositions is compelled by Supreme Court precedent. Turning to the application of this standard to circ umstances – present both in Faulkingham and in the present case – where an officer neglige ntly rather than intentionally violates a defendant’s Miranda rights, however, we disagree with the First Circuit. In Faulkingham , the court concluded that, where the Miranda violation resulted from mere negligence on the part of the interrogating officer, there is no strong need for deterrence and thus the physical fruits of the Miranda violation need not be excluded. We conclude that F aulkingham ’s cramped view of deterrence leads it to an erroneous conclusion r egarding negligent Miranda violations. Faulkingham asserted, without elaboration, that “[o]nce the un -Mirandized inculpatory statements of the defendant are themsel ves suppressed, the role of- 33 -

deterrence under the Fifth Amendment becomes less p rimary.” Id. at 92. The heart of the court’s analysis is the following:

Where, as here, negligence is the reason that the p olice failed to give a Mirandawarning, the role of deterrence is weaker than in a case . . . where the apparent reason the police failed to give a warning was their intention to manipulate the defendant into giving them information. Faulkingham’s claim, taking all the surrounding circumstances into account, simply does not tip the balance toward a strong need for deterrence. Faulkingham’s statement was not the result of “coercive official tactics.” There was no deliberate misconduct by the [police] agents here. There was no misleading or manipulation by the government . . . . The findings of the magistrate judge and the trial judg e give us no reason to think that the agents deliberately failed to give the warning in order to get to the physical evidence or that they did so to get to another witness who might or might not incriminate Faulkingham. The agents’ negligence re sulted in the suppression of Faulkingham’s confession, itself a detriment to the agents . . . . Id. at 93-94 (citation to opinion below omitted). The court noted that “Faulkingham himself started talking without much q uestioning” and observed that “there is nothing to shock the conscience of t he court and no fundamental unfairness.” Id. at 94. In light of the totality of the circumstan ces, the court held “that Faulkingham’s far weaker argument for recogni tion of a deterrence interest for suppression of derivative evidence arising from a negligent violation of his Mirandarights is insufficient to carry the day.” Id. We do not believe that “the role of deterrence . . . becomes less primary” once the statement itself has been suppressed. Id. at 92. Instead, the relevant- 34 -

question remains whether suppression of the stateme nt alone provides deterrence sufficient to protect citizens’ constitutional priv ilege against self-incrimination. As we already have stated above, see supra at 29-31, we answer this question in the negative. Nor do we share Faulkingham ’s view that there is a strong need for deterrence only where the officer’s actions were de liberate rather than negligent. Finally, Mirandaitself made clear that the privilege against self- incrimination was animated, not by a desire merely to deter intention al misconduct by police, but by the “one overriding thought” that “the constitution al foundation underlying the privilege is the respect a government . . . must ac cord to the dignity and integrity of its citizens.” Miranda , 384 U.S. at 460; see also id. (“[T]he privilege has come rightfully to be recognized in part as an individua l’s substantive right . . . to a private enclave where he may lead a private life.” (internal quotation marks omitted)). The personal right to be free of govern ment invasions of the privilege against self-incrimination is violated just as sure ly by a negligent failure to administer Mirandawarnings as a deliberate failure. Deterrence is n ecessary not merely to deter intentional wrongdoing, but also to ensure that officers diligently (non-negligently) protect – and properly are traine d to protect – the constitutional rights of citizens. The call for deterrence may be somewhat less urgent where- 35 -

negligence rather than intentional wrongdoing is at issue, but in either case we conclude that the need is a strong one. Moreover, we conclude that a rule limiting Wong Sun suppression of the physical fruits of a Mirandaviolation to situations where the police demonstra bly acted in intentional bad faith would fail to vindic ate the exclusionary rule’s deterrent purpose. Even in cases where the failure to administer Miranda warnings was calculated, obtaining evidence of such deliberate violations of Mirandaoften would be difficult or impossible. Cf. Whren v. United States , 517 U.S. 806, 814 (1996) (noting that one reason for th e Court’s adoption of an objective test for the reasonableness of a seizure was “the evidentiary difficulty of establishing subjective intent” of officers). An e xclusionary rule turning on the subjective motivation of the police officer would b urden courts with the difficult task of discerning, from the particular facts of ea ch case, the thought processes of the officer that resulted in the Miranda violation. See Carter , 884 F.2d at 374 (reasoning that courts should not “once again be em broiled in the endless case-bycase voluntariness inquiries Mirandawas designed to prevent [because] the easeof-application rationale enunciated by the Supreme Court will be largely nullified”). We believe a rule that provides certa inty in application and clarity for the officers charged with operating under it better serves the interests of citizens, officers, and judicial efficiency.- 36 -

Accordingly, we agree with the First Circuit’s conc lusion that the Wong
Sun fruits doctrine may apply to the physical fruits o f Mirandaviolations, but we decline to adopt Faulkingham ’s view that the physical fruits of a negligent Miranda violation are admissible. As a practical matter, w e agree with the view of the United States District Court for the Distric t of Maine, expressed in an opinion issued prior to Faulkingham :

Prior to the decision in Dickerson , the issue of suppression of evidence discovered as a result of a violation of Mirandaturned on a complex and largely opaque analysis attempting to resolve on an ad hoc basis the tensio n between the reliability of the subject evidence and the goa l of deterrence of police misconduct. This Court believ es all of that has gone by the board with the conferral by Di ckerson of constitutional status on the right to a Miranda war ning. United States v. Kruger , 151 F. Supp. 2d 86, 101-02 (D. Me. 2001) (citatio ns omitted), overruled by Faulkingham , 295 F.3d at 90-94. As explained above, we conclude that Miranda ’s deterrent purpose would not be vindicated meaningfully by suppression only of Patane’s statement. We hold that the physical fruits of this Miranda violation must be suppressed.9 Defendant-Appellee’s Motion to Clarify Statements Made in DefendantAppellee’s Previously-Filed Answer Brief is denied as moot. - 37 - IV. CONCLUSION For the foregoing reasons, we AFFIRM the district c ourt’s order suppressing the gun. 9