IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 16, 2000 Session

STATE OF TENNESSEE v. TIMOTHY WALTON

 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

ADOLPHO A. BIRCH, JR., 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 suppress also the physical 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 respect it, I must respectfully dissent.

As conceded by the majority, the issue whether physical evidence should be suppressed 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 concludes that “the clear trend under the federal constitution” is to admit

physical evidence obtained in violation of Miranda. Id. at 29. The authorities relied upon by the

majority, 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 Tucker, 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974). Live

witnesses, however, always have been treated differently than inanimate evidence, even under the

broader exclusionary rule jurisprudence 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) (holding that the Fourth

Amendment exclusionary rule “should be invoked with much greater reluctance where the 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 “tainted” by an

earlier, improper confession obtained in violation of Miranda. See generallyElstad, 470 U.S. 298,

105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). 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. 
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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 as were offered in

Rice overbear the accused’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. Crim. 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);

State v. Ely, 390 P.2d 348 (Or. 1964); cf. also Arizona v. Fulminate, 499 U.S. 279, 111 S. Ct. 1246,

113 L. Ed. 2d 302 (1991) (stating that promises that induce a confession may constitute coercion

when the circumstances surrounding the promise are “sufficiently compelling to overbear the

suspect’s will in light of . . . [those] circumstances”). 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 coerced confession would not be admissible even under the standard it proposes.

Accordingly, Rice lends little weight to the majority’s argument that physical fruits of a Miranda

violation should be admissible as evidence.

The better method, in my view, for determining whether physical fruits of a Miranda

violation should be suppressed would be to consider the interests served by Miranda’s exclusionary

rule and determine whether those interests would be advanced by applying the rule to physical

evidence. The right protected by Miranda is the Fifth Amendment right against self-incrimination,

which prohibits the State from compelling a defendant “in any criminal case to be a witness against

himself.” U.S. Const. amend. V; Miranda v. Arizona, 384 U.S. at 439, 86 S. Ct. at 1609. That same

right against self-incrimination is also protected by Article I, section 9 of the Tennessee Constitution,

which this Court regards as even “broader and more protective of individual rights” than the Fifth

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

the United States Supreme Court responded to the advent of modern custodial police interrogation

techniques, which “brought with it an increased concern about confessions obtained by coercion.”

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 character, subjects the accused to formidable pressure and isolation, and

it concluded that “[e]ven without employing brutality, the ‘third degree’ or [other] specific

stratagems . . . the very 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 upholding Miranda, “the coercion inherent in custodial interrogation blurs the

line between voluntary and involuntary statements, and thus heightens the risk that an individual will

not be ‘accorded his privilege under the Fifth Amendment . . . not to be compelled 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, the Court fashioned the requirements of Miranda in response to the necessity for

procedural safeguards which might provide a “fully effective means . . . to inform accused persons

of their right of silence and to assure a continuous opportunity 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, 110 S. Ct. 2394, 110 L. Ed.

2d 243 (1990) (describing Miranda’s requirements as resting on “the Fifth Amendment privilege

against self incrimination”). Because the lines between voluntary confession and impermissible

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.

Williams, 507 U.S. 680, 691, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993) (commenting that

“[p]rophylactic 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 the traditional totality-of-the-circumstances test raised a risk of overlooking

[a coerced] custodial confession, . . . a risk that the Court found unacceptably great when 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, which, when implemented would suppress the physical

fruits of a Miranda violation only when the statements leading to the discovery of the evidence were

coerced, is inappropriate for the very reasons that the Miranda requirements were established. The

majority’srule assumes that a totality-of-the-circumstances test is sufficient for determining whether

statements leading to the discovery of physical evidence, made during a custodial interrogation, were

voluntarily made. As recognized in Miranda, however, the totality-of-the-circumstances analysis

fails to fully protect the accused from violation of the Fifth Amendment privilege precisely because

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

on the already blurred line between voluntariness and coercion. 384 U.S. at 455, 86 S. Ct. at 1617-

18. If it were practicable 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 analysis, the risk that physical evidence will

be admitted erroneously when, in actuality, that evidence has been obtained through unconstitutional

coercion, is too great.

The requirementsofMiranda acknowledge that the right against compelled self-incrimination

must be broadly insulated if the rights of the accused are to be adequately protected. If this goal is

to be accomplished, Miranda’s exclusionary rule must be applied in a manner 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 improper police conduct). Clearly, then, the goals of Miranda are advanced

if police are prevented from using physical evidence they obtain from a Miranda violation, for this

should deter them from violating the rules therein established.

That police will not be deterred from violating a suspect’s Miranda rights if physical fruits

of those violations are allowed in evidence is not idle speculation. Recently, scholars have

documented the development of the relatively new police practice of “questioning outside Miranda.”

See Joshua Dressler and George C. Thomas III, Criminal Procedure: Principles, Policies, and

Perspectives at 605 (1999); Charles D. Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109 (1998).
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According to these commentators, police subscribing to this practice deliberatelyinterrogatesuspects

without informing them of their Miranda rights, sometimes even telling them that the statements they

make “outside Miranda” cannot be used against them. See Dressler and Thomas, supra, at 605,

Weisselberg, supra, at 160. One California police training video 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

that’s all it is. So you don’t violate any law. You don’t violate the Constitution.” Weisselberg,

supra, at 110 (quoting Training Videotape, Questioning: “Outside Miranda” (Greg Gulen

Productions 1990)). While no one knows how prevalent the practice of questioning “outside

Miranda” may be, there is no doubt that inherent in such questioning lies an increased risk that

violence will be done to the constitutional rights of the accused. As stated by Weisselberg:

[T]he new vision transforms Miranda from a decision that protects a

suspect into a new and aggressive tool for law enforcement. Under

this practice, officers comply with the warning requirements of

Miranda, but then represent that the suspect’s assertion of rights

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.

Weisselberg, supra, at 161-62. It is difficult to deny that allowing the physical fruits of a Miranda

violation to be used as evidence greatly encourages this questionable practice. Such a result should

be unacceptable, particularly given this Court’s claims that the Tennessee Constitution affords this

State’s citizens even greater protection of individual liberties than is guaranteed by the federal

Constitution.

For the foregoing reasons, I would hold that physical 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 based, and it fails to deter police

violations of the accused’s Miranda rights. Accordingly, I dissent.

___________________________________ 

ADOLPHO A. BIRCH, JR., JUSTICE