### IN THE SUPREME COURT OF TENNESSEE AT JACKSON November 16, 2000 S ession

STATE OF TENNESSEE v. TIMOTHY WA LTON

Appeal by Permission

from the Court of

Criminal Appeals Circuit Court for Dyer County No. C97-205 R. Lee Moore, Jr., Judge

No. W1998-00329-SC-R11-CD - Filed March 15, 2001

A DOLPHO A. B IRCH , J R ., J., concurring and dissenting.

I agree with the majority that the State violated the requirements of Miranda v. Arizona

by subjecting Walton to custodial interrogation without informing him of his Constitutional rights. See generally 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, I concur in the conclusion that Walton’s incriminating statements should be suppressed. The majority fails, however, to take the next logical step,

which would be to su

ppress als o the phy sical evidence obtained as a direct result of the Miranda

violation. Because this failure constitutes, in my opinion, a gross incursion upon the letter and spirit of Miranda and tends to invite open defiance and disregard of the Miranda doctrine by

those bound to resp

ect it, I must re

spectfully dissent.

As conceded by

th e majori ty, the issue

whether phy

sical evidence s

hould be suppresse

d if discovered

by means of a Miranda

violation has never been

directly addressed by the United States Supreme Court or by this Court. Majority opn. at 23, 32. Nevertheless, despite the absence of clear precedent,

the majority

conclu des that “ the clear trend under the feder

al constitution” is t

o admit physical evidence obtained in violation of Mirand a

. Id. at 29. The authorities relied upon by the maj ori ty, however, provide questionable support for the rule it has established. Michigan v. Tucker recognized

that a defendant could not suppress the testimony of a state witness whose identity was disclosed through statements made by the defendant during a custodial interrogation in violation of Miranda

. See generally Tucke r , 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974). Live witnesses, however, always have been treated dif

ferently than inanimate evidence, even under the broader exc lus ion ary r ule juris prudence of the Fourth Amendment. See, e.g.
, United States v. Ceccolini
, 435 U.S. 268, 280, 98 S. Ct. 1054, 1062, 55 L. Ed. 2d 182 (1974) (holdin

g that the Fourt

h Amendment

exclusionary rule “should be invoked with much greater relu

ctance where t

he claim is based on a causal relationship between a constitutional violation and the discovery of a

live witness than when a

similar claim is advanced to support suppression of an inanimate object”). Likewise, the focus of Oregon v. Elstad was whether a suspect’s voluntary confession was “tai nted” b y an earlier, improper

confession obtained in violation of Miranda

. See generally Elstad , 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (19 85). This is a proposition clearly distinguishable from the question whether evidence should be admitted when it was obtained as a direct result of the Miranda violation itself.-2-

And in Rice v. State , the principal Tennessee authority cited by the majority, the confession of the prisoner was induced by false promises that he would not be prosecuted, and that he would be given money, were he to confess his crimes. 50 Tenn. (3 Heisk.) 215 (Tenn. 1871). The greater weight of authority, however, suggests that promises of leniency or money such a s were offered in Rice overbear theaccused’s free will sufficiently that a confession induced by such means should be viewed as a

product of coercion. See, e.g.
, United States v. Rogers , 906 F.2d 189 (5th Cir. 1990); Sossamon v. State
, 816 S.W.2d 340 (Tex. Cri m. App. 1991); State v. Pickar , 453 N.W.2d 783 (N.D. 1990); State v. Hanson , 382 S.E.2d 547 (W. Va . 1989); Walker v. State
, 233 N.E.2d 483 (Ind. 1968); Statev. Ely , 390 P.2d 348 (Or. 1964); cf. also Arizona v. Fulmina te , 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (stating that promises that induce a c onfession may constitute coercion when the circumst

ances surrounding the promise are “sufficiently compelling to overbe ar the suspect’s will in lig

ht of . . . [th

ose] c ircumstances” ). Thus, it appears that the physical evidence which was admitted in Rice would likely be suppressed under the majority’s own

analysis, since the physical fruits of a coer

ced confession w

ould not be admissibl

e even under the

standard it propos

es. Accord ingl y, Rice l ends little weight to the majority’s argument that phy sical fruits of a Miranda violation should be admissible as evidence.

The better method, in my view, for determining whether phy sical fruits of a Miranda violation should be suppress ed would be t o co nsi der t he i nte res ts s erve d by Miranda ’s exclusionary

ru le and determ ine whether those interests would be advanced by apply ing the rule to physical evidence. The right

pro tec ted by Miranda

is the Fifth Amendment right against self-incrimination, which prohibits the State f rom compelling a

defendant “in a

ny criminal c

ase to be a witness

against himself.” U.S. Const. amend. V ; Miranda v. Arizona

, 384 U.S. at 439, 86 S. Ct. at 160 9. That same right against self-in

crimination is

also protected by Article I, section 9 of the Te nnessee Constitution, which this Courtregards as ev en “broader an

d more protective

of individual rig

hts” than the Fift

h Amendment. See State v. Crump , 834 S.W.2d 265, 268 (Tenn. 1992). With its holding in Miranda
, the United States Supre

me Court responde

d to the advent of modern custodial police interrogation techniques,

which “brought

with it an increased concern about confessions obtained by coe rcion.” Dickerson v. United States , 530 U.S. 428, ___, 120 S. Ct. 2326, 2331, 147 L. Ed. 2d 405 (2000); Miranda
, 384 U.S. at 445-58, 86 S. Ct. at 1612-19. The Miranda Court acknowledged that police interrogation, by its very charact er , subjects the accused to formidable pressure and isolation, and it conclude

d that “[e] v en without employing b rutality, the

‘third degree ’ or [other] specif ic stratagems . . . thevery

fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of

individuals.” 384 U.S. at 455, 86 S. Ct. at 1617-18. As noted by the Court in a subsequent

case uphold ing Miranda

, “the coercion inherent in custodial interrogation blurs the line between voluntar

y and involun

tary statem

ents , and thus heightens the risk that an individual will
notbe ‘accor ded his priv ilege under the Fifth Amendment .

. . not to be compelle

d to incriminate himself.’” Dickerson , 530 U.S. at ___, 120 S. Ct. at 2331 (quoting Miranda , 384 U.S. at 439, 86 S. Ct. at 1609) (emphasis added).

Thus, t he Court fashioned the requirements of Miranda in response to the n

ecessi ty fo r procedural safeguards which might provide a “fully eff ective means . . . to inform accused persons of their right of silence and to assure a continuous op portunity to exercise it.” Miranda , 384 U.S.-3-

at 444, 86 S. Ct. at 1602; see also Illinois v. Perkins , 496 U.S. 292, 296, 11 0 S. Ct. 2394, 110 L. Ed. 2d 243 (1990) (de scribin g Miranda ’s requirem ents as rest ing on “the Fi fth Amendm ent privil ege against self incrimination

”). Because th

e lines between v

oluntary co

nfession and imper

missible coercion often blur during custodial interrogation, the Court found it essential that the traditional totality-of-the-circumstances test for voluntariness be expanded, and thus the Miranda

Court crafted

a “prophylactic” rule in order to insulate and fully protect the rights of the accused. Cf. Withrow v. W illiams
, 507 U.S. 680, 691, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993) (commenting that “[p]rophylac

tic though it

may be, in protecting

a defendant’s . . . privilege against self-incrimination, Miranda safeguards a ‘fundamental trial right’”). As pointed out in Dickerson
, “the [ Miranda ] Court noted that reliance on thetraditional totalit y-of-the- circumstances te

st raised a risk

of overlooking [a c oerced] custo dial confession, . . . a risk that the Court found unacceptably great whe n the confession is offered in the case in chief to prove guilt.” Dickerson
, 530 U.S. at ___, 120 S. Ct. at 2335.

The rule embraced by the majority, w hich, when implemented would suppress the physical fruits of a Miranda

violation only

when the statemen

ts leading to the discovery of the evidence were coerced, is inappropriate for the very reasons that the Miranda requirements were established. The majo rity’s r

ule assumes that a totality-of-the-circumstances test is sufficient for determining whether
statements

leading to the discovery of phy sical evidence, made during a custodial int e rrogation, were voluntarily

made. As recognized in Miranda , however, the totality-of-the-circum stanc es analysis fails to fully prote

ct the accused f

rom violation of the

Fifth Amendment p

rivilege prec

isely because it is exceedingly difficult to discern where a statement divulged during a custodial interrogation lies

on the already

blurred line betw

een voluntarines s and coercion. 384 U.S. at 455, 86 S. Ct. at 1617- 18. If it were pr

acticable for reviewing courts to determine through a simple totality-of-thecircumstances analysis

whether statements made during custodial interrogation were coerced, there would be no need for Miranda . Under the majority’s a nalysis, the

risk that phy

sical evidence w

ill be admitted errone

ously when, i

n actuality , that evidence h as b een obtained through unconstitutional coercion, is too g

reat.

The requirements of Miranda acknowl edge that the ri ght against co

mpelled se

lf-incriminatio

n must be broadly insulated if the rights of the accused are to

be adequately

protected. I

f this goal is
to be accomplished, Miranda ’s exclusionary rule must be applied in a m anner which ensures that police are deterred from

violating the accused’s Fifth Amendment rights. Cf. Collazo v. Estelle , 940 F.2d 411 (9th Cir. 1991) (noting that the due process exclusionary rule for confessions is intended,
at least in part, to deter impr

oper police cond

uct). Clearly

, then, the goals

of Miranda

are advanced if police are prevented from using physi

cal evidence the

y obtain from a Miranda

violation, for this should deter them from violating the rules therein established.

That police will notbe deterred fr om violating a susp

ect’s Miranda

rights if phy

sical fruits of those violations are allowed in ev idence is not idle speculation. Recently, scholars have documentedthe development of the relatively new police practice of “questioning outside Miranda .” See Joshua Dressler and George C. Thomas III
, Criminal Proce dur e: Principles, Policies, and Perspectives at 605 (1999); Ch arles D. Wei sselberg, Saving Miranda , 84 Cornell L. Rev. 109 (1998).-4-

Acco rding to these commentators, police subscribing to this practice deliberately interrogate suspect s without info rming them of their Miranda rights, sometimes even telling them that the statements they make “outside Miranda ” cannot be used against them. See D ressler and Th omas, supra , at 605, Weisselb erg, supra , at 160. One California police training vide o goes so far as to instruct police officers that “[w]hen you violate Miranda , you’re not violating the Constitution. Miranda is not the Constitution. It’s a court-created decision that affects the admissibility of testimonial evidence and th at ’s all it is. So you don’t vi olate any law. Y ou don’t vi olate the C onstitut ion.” Weis selberg, supra , at 110 (quoting Training Videotape, Questioning: “Outside Miranda” (Greg Gulen P roductions 1990)). While no one knows how prevalent the practice of question ing “outsid

e Miranda ” may be, there is no doubt that inherent in such questi oning lies an increased risk that violence wi ll be done t o the const itutiona l rights of t he accused. A s stated by Wei sselberg:

[T]he new vision transfo

rms Miranda

from a decision th

at protects a suspect into a new and aggressive tool for law e nforcemen t. Under this practice, officers comply with the warning requir ements of Miranda
, but then represe nt that the suspect

’s assertion of ri

ghts makes a full statement perfectly safe. Of course, given the current use of the statements to impeach and to discover other evidence, the officers’ assurances at best mislead the suspect and at worst directly deceive him or her regarding the true state of the law.

Weisselb erg, supra , at 161-62. It is difficult to deny that allowing the physical fr uits of a Miranda violation to be used as evidence greatly encourages this questionable prac tice. Such a result should be unacceptable, particularly given this Court’s claims that the Tennessee Constitution affor

ds this State’s ci tizen s even greater protection of individual liberties than is guaranteed by the federal Constitution.

For the foregoing reasons, I would hold that phy sical evidence which is discovered as a direct result of a Miranda

violation should be suppressed. The majority’s decision to allow such evidence fails to further the objectives upon which the Miranda decision was base

d, and it fails to

deter police violations of the a

ccused’s Miranda

rights. Accord

ingly, I dissent.

___________________________________ ADOLPHO A. BIRCH, J R., JUSTICE