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

2000 Session

STATE OF TENNESSEE v. TIMOTHY WA LTON

Appeal by Perm

ission from the Cour

t of Criminal Appeal

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

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

The primary issu

e in this case is whe

ther the appelle

e was s ubjected to custodial interro gation in violation of the requirements of Miranda v. Arizona , 384 U.S. 436 (1966), when officers questioned him in response to his volunteered, but unwarned, statements. The Dyer County Circuit Court found that although the appellee was placed in custody , his st atements to the police as to the location of stolen property were spontaneous, voluntary , and not the result of interrogation. The appellee then entered a conditional guilty plea, reserving for appeal the question of whe ther he was subjected

to custodial interrogation.

The Court of Crimina

l Appealsreversed, finding that the greater weight of the evidence established that the appellee’s statements were a result of inter ro gation, and it suppressedthe appellee’s statements and the physical evidence derived fr om his statements. The Statethen requested permission to a ppe al to this Court on the issue of whether the appellee was subjectedto custodial interrogation in violation of Miranda

. We agree with the intermediate court that the appellee was placed in custody and subjected to interrogation, but we decline to suppress the physical evidence recovered

by the officers absent

any evidence that his statements were the product of actual coercion. Because the appellee’s plea was made with the expectation that his statements

were admissible a s evidenc e, we remand this case to the Dyer County Circuit Court to give the appellee the opportunity to withdraw his plea should he so desire.
Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of Criminal Appeals Affirmed in Part, Reversed in Part; Case Remanded

W ILLI AM M. B ARKER , J., delivered the opinion of the court, in which E. R ILEY A NDERSON , C.J., and F RANK F. D ROWOT A , III, and J ANICE M. H OLDER , JJ., joined. A DOLPHO A. B IRCH , J R ., J., filed a concurring/dissenting opinion.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark E. Davidson, Assistant Attorney Ge nera l, Nashville, Tennessee, for the appellant, State of Tennessee.1 According to the te stimony at the suppressi on hearing, none of

the offi cers ever tol

d the appellee t

hat Thompson informed the pol ice of the appellee’ s role in t he burglaries . The State, i n its brie f before thi s Court, twi ce conced es that Tho mpson w as the uniden tified police info rmant.

-2- Charles S. Kelly, Dyersburg, Tennessee, for the appellee, Timothy Walton.

OPINION

FACTUAL BACKGROUND

On May 22, 1997, two federal postal inspect ors and t hree officers

with the Dye

r County Sheriff’s Department went to the home o f the appellee , Timothy Walton, to discuss recent post-office burglaries in Fin ley, Tennessee. The inspectors apparently believed the appe llee either participated in the burglaries or otherwise possessed relevant information. Upon arriving at the appellee’ s residencein three separate police cars, both postal inspectors and two of the officers approached the appellee, who was o n his porch. The third officer, Officer Burns, then went behind the trailer, ostensibly

to “secure the rear of the house for the officer’s safety .” While in the back yard, Burns

n oticeda path leading f

rom the trailer in

to the woods, and fo

llowing it, he disc

overed a sm

al l clearing containing about ten or fifteen marijuana plan ts. Burns also discovered several propane heat ers loc ate d no t fa r fro m th e app ell ee’s pro pert y.

Officer Burns returned to the trailer and notified the other officers and the postal inspectors of his discovery, and one of the officers and both postal inspectors we nt to in spect the plants and heaters. The appellee, who denied ownership of the plants or heaters, remai

ned near the tra

iler with Officer Johnson, “talking with him.” At some point while the other officers were photographing the

scene and “recovering

[the] evidence,” Johnson requested that the appellee accompany the officers andthe postal inspe ctors to the sheriff’s department to further discuss the Finley post-office burglaries.The appellee agreed to go, and although the officers informed him that he was not under arrest for the marijuana or for any other crime, Johnson handcuffed the

appellee and pla

ced him in the back of Officer McCreight’s unmarked patrol car.Apparently, the purpose of handcuffing the appellee was for the officers’ security, as the pa trol car was not equipped with a security cage.
Although the record is unclear as to precisely when the statements wer e made, at some point the appellee mentioned the name of a Charles Thompson, w

ho apparently

informed the police of the appellee’s role in

the post-office burglaries, and said “I know what lies and things that [Thompson has been] telling on me. And I’ve got some information where we can get him.” 1 About

the time that the parties prepared to go back to the sheriff’s department, the appellee claimed to k now the location of several stolen items that Thompson had give n him “from some other places.” Upon hearing this, Johnson then asked the appellee whether he could show the property to the officers, and the appellee responded, “Yes, I’ll take y ou to it right now.”

Once in the patrol car

with Officers Johns

on and McCreigh

t, the appellee gave the officers directions to a point along a public road where a piece of plastic had been tied to a barbed wire fence.-3-

The appellee told the officers to stop, and the officersallowed him, with his handcuffs still on, to get outof the car and venture about thirty feet down into a ravine. The appellee returned a few minutes later carrying a plastic garbag

e bag containing a computer, a monitor, and a keyboard. The officers, who later testified that they had no knowledge of a stolen computer befor e the appellee bro

ught it to them, placed the items in the trunk of the patrol car.

A t this p oint, the appellee then told the officers that he knew where more property was located, and he gave

the officers directions to his parents’ house. Once they arrived at the house, Johnson asked, “Which way do we go from here?” The appellee responded, “Just follow me,” and he too k the officers i

nto a barn where

, with his handcuff

s still on, he starte

d to remove some floorboards. Johnso

n asked him to stop fo

r a moment while

McCreight took some pictures of the

scene. When the appellee was permitted to r

esume, he uncove

red a rifle wrapped in a pair of blue coveralls. After first holding the wrapped rifle in the air so that McCreight could take a n other picture, the appellee handed the rifle to Officer Johnson, who recognized it as one reported stolen from a residence in Finley. Knowing that the stolen rifle also had a sc ope, Johnson then asked the appellee whether “there was anything else to go with [the

rifle],” to which the appellee responded that the scope to the rifle was back at his house.

The trio then returned to the appellee’s residence, and the appellee invited the officers into his house and back

to his bedroom. With

the handcuffs sti

ll on, the appellee went to his bedroom closet, from which he produced the rifle scope for the officers. Apparently witho ut a ny other prodding, he also produced from the closet several electric heaters and a step ladder, all items that the police later determined were stolen from the Dyersburg Warehouse. The officers then proceeded to take the appell ee and all of the propert y back to the pol ice statio n. As they were l eaving, Officer Johnson told the appellee’s wife that the appellee was not under arrest.

Once at the police station, the officers informed the appellee for the first time

of his right to remain silent and of his right to have an attorney present. Despite the fact that Officer McCreight

was aware that

the appellee wa

s illiterate, McCr

eight also requested that th

e appellee sign

and date

a form labeled “Admonition and Waiver,” which c

ontained a writte

n statement of his Miranda rights anda waiver of those

rights. After si

gning the form

, the appellee gave a statement that detailed the dealings of Charles Thompso n and anoth

er i ndividual, Billy McNeely, in obtaining the stolen pro pert y. According to Officer Johnson, though, the appellee never stated that “he had any

thing to with [this] at all.”

On August 11, 1997, the Dyer County Grand Jury returned a four-count

indictment agai

nst the appellee, char

ging him with two c

ounts of theft over five hundred dol lar s, o ne co unt of b urgl ary, andone count of agg

ravated burgl

ary. Two mon

ths later, the app

ellee filed a moti

on to suppress

any statements

and evidenceresulting from the failure of the officers to in

form the appelle

e of his rights under Miranda v. Arizona , 384 U.S. 436 (1966). A hearing on the motion was held on December 18, 1997 , d uring which the State introduced the testimony of Officers Burns, McCre ight, and Johnson. The State argued that no Miranda

warnings were needed

in this case because the appellee

was never placed

in actual custody and

because the appellee had spontaneously volunteered all of-4-

the information to the p

olice without first

having been questioned. Although the appellee introduced

no proof himself, he argued that the police “intimidat ed, urge d, coaxed, coerced, questioned, and interrogated” him into revealing the location of oth er s tol en p rop ert y, and that notwithstanding the officers’ tes tim ony, it was “inconceivable that the officers . . . did not ask any questions whatsoever.” His counsel mainta

ined that his incrim

inating statemen

ts were neither v

oluntary nor

spontaneous.

On January 5, 1998, the trial court issued a “Memorandum Opinion and Order on Motion of Defendant

to Suppress,” denying the appellee’s motion. The court

disagreed with the State that the appellee was not placed in cus t ody, because “[v]iewing this matter under the totality of the circumstances,

. . . a reasonable

person in the susp

ect’s position would have considered himse

lf deprivedof freedom of movement to a degree associated with a

formal arrest.” However, the court found no evidence that the appellee was ever subjected to interrogatio

n while he was in custody. As the court stated in its Memorandum Opinion,

[t]he only testimony available to the court for considera tion is the testimony of the three officers mentioned above. . . . Offi cer McCreig ht and Investigator Johnson testified that there was no interrogation and that all of the information givenby the defenda ntwas spontaneous and voluntary and not elicited as a result of any interrog ation or suggestio n by either offi cer. Conseq uently, altho ugh the . . . defendant was in custody at the time the i nformation was obtained, . . . the information was given volunta rily by the defendant a

nd not in response to interrogation

by either of

ficer. The nee

d for formal Miranda

warnings presumes that the statem ents are eli cited thro ugh interro gation or qu estioning.
On February

6, 1998, the appellee entered a conditional guilty plea to the burgla ry and aggravated burglary counts of the indic

tm ents, reserv ing for appeal a certified question of law regarding the court’s denial of his motion to suppress. The trial court then sentenced the appellee to three years imprisonmentfor the burg lar y conviction and to four years imprisonment for the aggravated burglary conviction, both sentences to be served concurrently in the Department of Corr ection.

The Court of Criminal Appeals reversed the decision of the trial court. A ltho ugh the intermediate

court agreed that the appellee was placed in custody, it also found that “[t]he greater weight of the evidence does not support the conclusions made by the trial court that

the statements

were admissible because they were spontaneously made.” Th e c ourt stated that “[w]hile the statements

may have been voluntary, [they ] were not made by the defendant with the fu ll knowled ge of his rights,” and that “the ‘coercive nature’ of the arrest produced the incr iminating information.” The Court of Criminal Appeals then suppressed all of the evidence against the appellee and dismissed the char

ges.

The State then filed a

n application for

permission to

appeal before

this Court on the sole

issue of whe ther, as a matter of law, the appellee was subjected to interrogation within the meaning of2 Oral argument was heard i n this case on November

16, 2000 in Jackson, Madison County, Tennessee, as part of this Court’s S .C.A.L.E.S . ( S upreme C ourt A dvancing L egal E ducation for S tudents) pro ject.

3 We no te that some c ases from the intermediate court still refer to the standard in pl ace prior t o Odom for reviewing a trial court’s finding s of fact at a supp ression hear ing. See, e.g. , State v. Green , 995 S.W.2d 591 , 599 (Tenn. Crim. App. 1998) (“The f indings of fact of the trial court on issues concerning the making of a custodial stat ement are binding upo n appellate revi ew if t here is any evi dence in t

he record t

o support t

hem.”). To be clear,the st andard of appellate review for findings of fact at a suppression hearing is that articulated by t

his Court in Odom

. -5- Miranda v. Arizona . We granted the State’s application, 2 and we agree with the Courtof Criminal Ap pea ls that the appellee was placed in custody and subjected to interroga tion. We also find, however, that while any statements made by the appe llee in response to interrogation are automatically

su ppre ssed, the phy

sical evidence r

ecovered by

the officers is pr

operly admi

ssible absent any evidence that the appellee’s statements were the product of actual coercion.

STANDARD OF AP

PELLATE REVIEW

This case involves a review of the trial court’s findings of fac t and conclusions o f law in denying a motion to suppress evidence. Because issues of whether a defendant was placed i n
cus tod y, interrogated, o r volu ntarily gave a confession are primarily issues of fact, see State v. Morris
, 24 S.W.3d 788, 805 (Te nn. 2000); Statev. Anderson , 937 S.W.2d 851, 855 (Tenn. 1996); Childs v. State , 584 S.W.2d 783, 786-87 (Tenn. 1979), we review these factual determinations by the trial court according to the standard set forth in State v. Odom , 928 S.W.2d 18 (Tenn. 1996). Under this standard, “a trial court’s findings of fact in a suppression he

aring will be uph

eld unless the evidence preponderates otherwise.” Odom , 928 S.W.2d at 23. 3 Questions about wit ness credibility and “resolution of conflicts in the evidence are matters entrusted to the trial judge,” id.
, andthe “[t]estimony

presented at tria

l may be cons

idered by a

n appell ate court in deciding the propriety of the trial court

’s ruling on a moti

on to suppress.” State v. Perry , 13 S.W.3d 724, 737 (Tenn. Crim. App. 1999). Our review of a trial court’s application of law to the facts, however, is conducted

under a de novo standard of review. See State v. Crutcher , 989 S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan , 958 S.W.2d 626, 629 (Tenn. 1997).

CUSTODIAL INTERROG ATION

The issues in this case involve the constitutional protection against compelled sel fincrimination, which “isprotected by both the federal and state constitutions.” State v. Blackstock
, 19 S.W.3d 200, 2 07 (Ten n. 2000). The Self-Incrimination Clause of the Fifth Amendment to the United States Constitution, made applicable to the sta tes by Mallory v. Hogan , 378 U.S. 1, 6 (1964), provides tha t “ [n]o person . . . shall b e compelled in any

criminal case to b

e a witness aga

inst himself.” Our state constitution likewise contains a related provision in Article I, section 9, which guarantees that “in all crimina l prosecutions,

the accused . . . shall not becompelled to give evidence against himself.” Althoug

h “we have tradi

tionally interpreted article I, [section] 9 to be no broader than the Fifth Amendment,” State v. Martin , 9 50 S.W.2d 20, 23 (Tenn. 1997), one “significant difference

between these two provisions is that the test of voluntariness for confessions unde

r Article-6-

I, [section] 9

is broader and more protective of individual rights than the test of voluntariness under the Fifth Amendment,” Statev. Crump , 834 S.W. 2d 265, 268 (Tenn. 1992 ) (citing State v. Smith
, 834 S.W.2d 915 (Tenn. 1992)).

To help insure the protections of the Fifth Amendment in the criminal process, the United States Supreme Court held in Miranda v. Arizona , 384 U.S. 436, 444 (1966), that “the prosecution may not use statements, whether exculpatory or inculpatory, ste mming from custodial interrogation of the d ef endant unless it demonstrates the use of procedural safeguards effective to secur e the privilege against self-incrimination.” As part of these safeguards, the police are re quiredto inform pers ons being questioned while in custody of th

e following rig

hts: (1) that they

have the right to remain silent; (2) that any statement made may be used as evidence against them; (3) that they have the right to the presence of an attorney during que stioning; and (4) that if they cannot afford an att orn ey, one will be appointed for them prior to questioning, if so desired. See id. at 444; see also Statev. Bush , 942 S.W.2d 489, 499 (Tenn. 1997). As the Supreme Court recently re-emphasized,

“ Miranda and its progeny . . . gov ern the ad missibility of statements made during custodial interrogation

in both state and federal courts.” Dickersonv. United States , 530 U.S. 428, __ (2000).

The requirements of Miranda “must be strictly enforced, but only in those situations in which the concerns that motivated the decision are implicated.” State v. Goss , 995 S.W.2d 617, 629 (Tenn. Crim. App. 1998) (citing Illinois v. Per kins , 4 96 U.S. 294, 296 (1990)). Of course, Miranda warnings are not required under every circumstance in

which police off

icers come into c

ontact with citizens. Rather, because

“[t]he underpinnings of Miranda are to dissipate the compulsion inherent in custodial interrogations, to prevent coerced self-incrimination, and to prevent relevant defenda nt ignorance,” see Statev. Callahan
, 979 S.W.2d 577, 582 (Tenn. 1998), the requirements of Miranda

come into play only when the defendant is in custody and is subjectedto questioning or i ts functional equivalent, see Rhode Island v. Innis , 446 U.S. 291 (1980). Absen t either one of the

se prerequisite

s, the requirements of Miranda are not implicated.

With regard to the issue of custody, the Miranda Court defined this requirement as when the defendant is placed under formal arrest or is “otherwise dep rived of his freedom of action in any significant

way.” 384 U.S. at 444; see also Stansbury v. California , 511 U.S. 318, 322 (1994) (“[T]he ultimate inquiry is simply whether there [wa s] a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.”). This Court has expanded this definition to m ean “under the totality of the circumstances, [whether] a reasonable person in the suspect’s position would consider himself or herself deprived of freedom of movement to a degree associated witha formal arrest.” State v. Anderson , 937 S.W.2d 851, 855 (Tenn. 1996). To aid in determining whether a reasonable pe

rson would conside

r himself or herse

lf in custo dy, this Court consider s a variety of facto rs, includ ing the foll owing:

the time and location o f the interroga

tion; the du ration and character of the questioni ng; the officer’s tone of voice and general demeanor; the suspect’s method of transportation to the place of que stioning; the numbe

r of police offic

ers present; any limitation on movement or other form of restraint imposed on thesuspect during4 We believe that this c rucial fact di sting

uishes this c ase from

our holding in Childs v. State , 584 S.W.2d 783 (Tenn. 1979), in which we found that a defendantwas not questioned whil

e “in custody ,” even though he was questioned by officers while he

was voluntari

ly accompanying pol

ice office

rs to the st

ation in t he back of a police car. Unlike the present case, though,

the Childs

defendan t had volunta rily visited the police station previously on several occasions, and he was not ha ndcuffed d uring this particu lar journey.

-7- the interrogation; any interactions between the officer and the suspect, including the words spoke n bythe officer to the suspect, and the suspect’s verbal or nonverbal responses; the extent to which the suspect is co nf ronted with the law enforcement officer’s suspicions of

guilt or evidence of guilt; and finally, the extent to which the suspect is made aware that he or she is free to refrain from answering que stions o r to end the interview at will.

Anderson , 937 S.W.2d at 855.

In this case,

the State concedes, and w

e agree, that

the lower courts w

ere correct in

finding that the appellee was “in custody” for Miranda purposes. We first

note that the appellee was confined in the backseat of a patrol car with two other officers present. Cf. State v. Pres ton , 41 1 A.2d 402, 405 (Me. 1980) (finding custody when defendant was questioned alone in an unmarked police car by two

other officers). Second, we n ote that wh ile the app ellee volu ntarily agreed t o go to the police station w

ith the officers,

the officers nevertheless handcuffed the appellee before he got into the car, and

he remained handcuffed during the entire afternoon as the officers drove around the

cou nty. Although one of the officers testified that the handcuffs were used only for security purposes while the appellee was in the patrol car, this conclusion is not credible given that the handcuffs were notremoved even when the appellee was out of the car sea

rching and dig

ging for stolen

items. 4 Viewing this matt er in the totality of the circumstan

ces, therefore

, we conclude tha

t a reasonable person in the appellee’s position would have considered himself or herself deprived of freedom of movement to a degree associated with formal arrest.

The next issue in this case is whether the appellee was subjected to interrogation while he

was in custody. Although the Miranda Court defined interrogation as “questioning initiated by law enforcement

officers,” 384 U.S. at 444, the Supreme Court has since made clear that interrogation is not limited to express questioning by officers. In Rhode Island v . Innis , 446 U.S. 291, 301 (1980), the Court stated that interrogation “refers not only express questioni ng, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit incriminating information.” Included with in this definition is any “practice that the police should know is likely to evoke an incriminating response from a suspect.” Id.

The present case is unlike those usually applying the Innisrationale, however, because it does notinvolve subtle

police tactics designed

to elicit incrimina

ting responses; r

ather, it involves

direct, express questioning of the appelle e by police officers. The rub in this case, though, is that the5 Although it see ms exceed ingly unlikely that the appel

lee suddenly vol

unteered to share his knowledge of the whereab outs of stolen property without any prodding or questioning by the officers, ther e is no proof in the record to the contrary. The only w itnesses at the sup pression he aring were the police officer s, who all te stified th at the appell ee volunteered

the inf ormation on

his ow n, without any “carrot ” being gi

ven or off

ered by th

e police.With no proof or evidence to the contrary, the t rial court’s fi

nding that the appellee’s i nitial stat ements were voluntary is certainl y in accord with the weight o f the evidence , and as such, w e are bou nd by this finding on appe al.

6 The Muniz Court stated that asking questions d uring routine b ooking p rocedur es did in fact am ount to custodial interrogat

ion. 496 U.S. at

601 (“ We disagree with th e Comm onwealth’s co ntention that O fficer Hoster man’s first s even questions regardin g Muniz’s n

ame, addres s, heig

ht, wei ght, ey e color, da

te of bi rth, an d current age do not qualify as custodial interrogati on as we defined the term in Innis , merely bec ause the que stions were no t intended to elicit informat ion for investigatory purposes.”). However, so long as the questions were not designed to elicit incri minating information, id. at 602 n.1 4, the answers to those questions were admissi ble under the “routine booking question” exception, “whic

h exempt

s from Miranda ’s coverage questions to secure the ‘bio graphical d ata necessar y to comp lete booking or pretria

l services ,’” id. at 601. In State v.

Cobb , 539 P.2d 1140 (Ore. Ct. App. 1975), the Oregon Court of Appeals recognize

d that whil

e a question may be of

a “routine and relatively a dministrative n ature” in one case, the very sa me questio n could co nstitute “interrogation” in another case. The key diff erence for that

court was whether the pol ice action was

either in tended or reasonab ly likely to elicit incriminating information. Id. at 1143 (citing McCo rmick, Evidence § 152, at 327, 329 (2d ed. 1972)).

-8- questions by the officers were follow-up questions to the defendant’s initial voluntary st atements. 5 The genuine issuein this case, ther efore, is whethe

r a defendant is s

ubjected to

interrogation when he or she initially volunteers a statement to police officers and is then askedfollow-up questions by the officers concerning that initial voluntary statement.

“The bare fact

of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official . . . .” Illinois v. Perkins , 496 U.S. 292, 299 (1990) (dicta). Nevertheless,

because its pros cr iption on express questioning without the Miranda safeguards is unqualified, the Innis

definition of interrogation ap p ears, upon first reading, to exclude from evidence all answers to expr ess questioning w

hile th e def

endant is in custody. No case has ever extended the holding of Innis this far, however, and sev eral types of express questions have been permitted by state and federal courts when (1) the ques tions do n ot infringe upon “the u nderpinni ngs of Miranda ,” or (2) those underpinnings are outweighed by other concerns. For example, officers

are permitted to ask questions that reveal non-testimonial information, see, e.g. , P enns ylvania v. Muniz
, 469 U.S. 582, 591-92 (1990) (permitting questions that were designed to reveal nontestim onial evidence such a s slurred speech

); United States v. Dio

nisio , 410 U.S. 1 (1973) (permitting voice exemplars), and officers may ask questions relevant to routine booking proc edures at the police station, Muniz , 569 U.S. at 601-02; see also State v. Williams , 623 S.W.2d 118, 121 (Tenn. Crim. App. 1981) (stat ing t hat Mira nda does not apply to routine questions such as “the subject’s name, address, date of birth, height, weight, location of arrest and

charge”). 6 In addition, the Supreme Court has upheld the questioning of a defendant when the questioning was necessary to prevent a threat to public safety. See New York v. Quarles , 467 U.S. 649 (1984).

The United St ates Supreme Court has yet to specifically a ddress whether follow-up questions by officer s to a defendant’s voluntary statements are permitted, especially when the officers have-9-

reasonto suspect that the answers to t he follow-u p question s are likely to be incrimi nating. Some courts addressing this issue have held that the answers to f

oll ow- up q ues tio ns a re m erel y a
co ntinuation of the defendan t’s initial voluntar

y statement.

For example, the N

ebraska Co

urt o f Appealshas held that

because follow-up questions by officers to a defendant’s voluntary statement

are not pro hib ite d by Rhode Island v . Innis , such questions are permitted, and the answers are admissible. See State v. McDowell, 488 N.W.2d 593, 597-98 (Neb. Ct. App. 1992) (“However, the record does show tha t after [the defendant] made a statement to Murtaugh, Brady then a sked [the defendant] if there was something he wanted to say. Innis does not prohib

i t such follow[-]up questi ons. Th erefore, [the de fendant’s] answe

r to Brady ’s question was a c ontinuation of his volunteered

statement, andthe officers were not requir ed to advise him of h

is Miranda

rights at that time.”).
The greater w

eight of authori

ty, however

, seems to suggest that o

fficers should

inform the suspect of his or her Miranda

rights before asking

follow-up questions to a voluntary statement when the officers “reasonably suspect” that incriminating information w ill be forthcoming. One court addressing this i

ssue has stated tha

t

a person who volunteers facially exculpatory information to the police and whom the police do not have reaso

n to consider asuspect, may , without being ad

vised of his Miranda rights, be asked follow-up questions so long as those questions are designed to clarify the facially e

xculpatory prior statement. However, once the police have

reason to doubt the information, and thus to believe that any

further questions wou

ld be “reasonably likely

to elicit an incriminating response,” they must administer the Miranda warnings before [asking] any follow-up questioning.

Merriweather

v. State , 629 So.2d 77, 83-84 (Ala. Crim. App. 1993 ) (citations omitted) (emphasis added); see also United States v. Gonzalez , 688 F. Supp. 658, 662 (D.D.C. 1988), remanded on other grounds
, 875 F.2d875 (D.C. Cir. 1989) (“ Miranda does not apply to unsolicited, spontaneous and voluntary sta tements, n ot made in r esponse to interrogati on, althou gh officers m ust give warn ings before any follow-up questioning is resumed.”).
Although Innis

does not directly compel such a standard, we believe that the second appr oach is most in line with the underpinnings of Miranda . We acknowledg e that, unlik

e the p resent case before this Court, many courts addre ssing t his issue have done so in situations in which the defendant first asserted hi

s or her right to r

emain si lent and t hen later volunteered to speak to the police. Even so, the ratio

nale adopted by

those cases seem

s particularly

appropriate whe

n, as in this
case, the def

endant nev er had the benefit of the warnings in the first instance. Accordingly , we conclude that police officers are permitted t o ask follow-up questions to a defendant’s voluntary statement without first

having to give Miranda

warnings, unless the officer has reason to believe that the follow-up questions are “r easonably likely to elicit an incriminating response.” In such a case, Miranda warnings must be

given before a

ny answers

t o the foll ow-up questions ar e properly admissible. In this manner, courts can beassured that the resulting answers are truly voluntary and free from “relevant defendant ignorance.” Cf. Callahan , 979 S.W.2d at 582; see also Wa yne R

.7 The fact t hat the locati on of the s

tolen prope

rty was derived f

rom the expr

ess quest ioning of Officer Johnson distinguishes this case f rom State v. Hurle

y , 876 S.W.2d 57, 66 (Tenn. 1993), in which the defendant called the detect ive to his cell

to give a

full confession. The detective i n Hurley testi

fied th at, upon receiving t

he defendant’s

call, he ha

d no intention of interrogati ng the defendant but went to the cell onl y to hear what the defendant had to say. Moreover, with the exception of

one inquiry as

to why the def

endant was being “set up” by others, the detecti ve in Hurley did not question th e defenda nt at all, but rather only listened to his voluntar y statements. This Court held that because the defendant initiated the contact with the detective and beca use his voluntary self -serving statements were not in response
to any questioning on the part of the det

ective, the defe ndant’s stateme nts were not the pr

oduct of cu stodial

interr ogation and were th erefore ad missible. Hurley , 876 S.W.2d at 66.

8 This is how th e Court o f Criminal Ap peals ade ptly character ized the ap pellee’s afternoon jo urney with the officers on Ma y 22, 199 7. See State v. Walton , No. 02C01-9807-CC-00210, 1999 WL 236459, slip op. at 11 (Tenn. Crim. App. filed at Jackson April 23, 1999).

-10- LaFave, et al., Criminal Procedure § 6.7(d), at 566-57 (2d ed. 1999) (“The better view, however, is that the part of the defendant’s statement given after the follow-up questions is volunteered only if the questions are neutral attempts to clarify what has already been said rather

than apparent a

ttempts to expand the scope of the statement already made.”).
Turning to the facts of this case, Officer

Johnson clearly

had reason to

believe that his followup questions to the appellee’s statements wer e “reasonably likely

to elicit an incriminating response.” The officer had every reason to believe that the answers to his questions would lead to the recovery of stolen property, and from all indications in the record, this was precisely the officer’s hope and expectation. 7 Cf. Innis , 446 U.S. at 301 n.7 (stating that the intent of the officer “may well have a bearing on whether the polic e should have know

n that their words o

r actions were r

easonably likely to evoke an incriminating response”). Indeed, it is difficult to conc eive of an y response by the appellee that would not have bee n incrimin ating, and as such, wefind that the offic er first had a dut

y to informthe appellee of his rights before asking any follow-up questions. Accordingly , we agree witht he C ourt of Criminal Appeals that the appellee was subjected to custodial interrogation in a violation of the requirements of Miranda v. Arizona

.
SUPPRESSION OF EVIDENCE

Because we have found tha

t the appellee in th

is case was subjec

ted to custodial interrogation wi thoutfirst having been informed of his rights under Miranda v. Arizona , it is axiomatic that al l statements

made by the a

ppellee in respon

se to that interrogation

are inadmissible as evidence. See, e.g. , Miranda , 384 U.S. at 466 (“The warnings required and the waiver nece

ssary in ac

cordance with

our opinion today are, in the absence of a fully effe ctive equivalent

, prerequisites to

the admissibility of any statement made by a def en dant.”); St ate v. Bush , 942 S.W.2d 489, 499 (Tenn. 1997). However, the evidence of guilt in this case consists not only of statements made by the appellee, but also of physical evidence obtained from his “custodial expedition for incriminating evidence.” 8 In vacating the appellee’s plea and dismissing the charges, the Court of Criminal Ap

peals suppressed all of the evidence in this case, including the recovered property, finding that the failure to infor m the appellee of his rights, combined with the “particular natur e of [the officers’] interrogation,”9 Such a result was suggested b y Miranda itself, al though Justice White’ s dissenti ng opinion made clear that the Court was leaving the issue for considerat

ion at a lat

er date. Compare Miranda , 384 U.S. at 479 (“But unless and until such warn

ings and w aiver ar

e demonstra

ted by th

e prosecut

ion at t rial, no evidence

obtained a

s a resul t of interr ogation can be use d against him.” ), with Miranda , 384 U.S. at 454 (White, J., dissenting) (“Toda y’s decision leav es open such questions as . . . wh ether non-testim onial eviden ce introduc ed at trial is the fruit of statements made during

a prohibited interrogation .”); see also Patterson v. Uni ted States , 485 U .S. 922, 9 22-24 (1 988) (W hite and Bre nnan, JJ., dissenting from a denial of certiorari) (n oting that Miranda
, Michigan v. Tucker , 417 U.S. 433 (1974), and Oregon v. Elstad
, 470 U.S. 29 8 (1985), have al l lef t open t he ques tion of the

“admi ssi bili

ty of physi cal ev idence yiel ded from

a Miranda violation”).

1 0 In Schmerber v. California , the Court first hinte d that only testimo nial evidenc e may be ex cluded b y a violat ion of the Fifth Amendment. In holdingthat the blood test evidence at is sue was “not inadmissible” on privil ege grounds, the Court reasoned that “altho ugh an incriminatin g product of compulsion, [it] was neither peti tioner’s testi

mony nor evidence rela

ting to some communi

cative act or

writing by

the petit ioner . . ..” 384 U.S. at 765. Having decided Miranda only seven d ays earlier, the C ourt then no ted that

[t]his conclusion would no t necessarily go vern had the State tried to show that the acc used had incriminat

ed himself

when tol

d that he would have to be tested. Such incriminat

ing evidence

may be

an unavoidabl

e by-produc

t of the compulsion to take the test, especially for an indivi dual who fears the extract

ion or opposes

it on re ligiou s grounds.

If it wishes to compe l persons to su bmit to such attempts to discover e vidence, the State may have to for

go the advan tage of an y testimon ial produ cts of administ

ering the test—product s which would f

all wit hin the pri

vilege

. Id. at 765 n.9 (emp hasis added). As this statement dem onstrates, the Schmerber Court believed t hat while a Miranda violat ion would render any re sulting statements inadmissibl

e, the non-t

estimonial

evidence, such

as the bl ood tests, could still be used as evidence of guilt not

withstandi

ng the Miranda violation.

-11- required suppression of the recovered physical evidence. We disagree, respectfully, that the record as developed in th

is case compels su

ch a result.

FEDERAL LAW

The United States Supre me Court has not d irectly addressed whether phy sical evidence obtained from a violation of Miranda is admissible. 9 Absent a finding that a statement was inv olu nta ry, we note that Miranda ’s exclusion of incriminating sta

tements has never been absolute. See, e.g. , Harris v. New York , 401 U.S. 222, 226 (1971) (permitting use of u nwar ned, voluntary statements to impeach a witness). Furthermore, as several cases make clear, the Fifth amendment applies only to testimonial or communicative evidence, see, e.g. , Schmerber v. Cali fornia , 384 U.S. 757 (1966); United States v. Dio nisio , 410 U.S. 1 (1973), and as such, all non-testimonial evidence would seem to fall outside

the scope of the “

fruit of the poisonous tree” doctrine as applied to the Fifth Amendment. 10 Nevertheless, as the Supreme Court acknowledged

in Michigan v. Tucker , 417 U.S. 433 (1974), the exclusionary rule m ay be applied in the Fifth Amendment context given the proper case. See 417 U.S. at 447.

While not addressing th

e precise issue b

efore us today

, the Supreme

Courthas had occasion to address whether some fruits of a Miranda violation need to be suppr essed. For example, in Tucker
, a defendant sought to suppress the testimony of a state witness

whose identity was disclosed through unwarned

statements made by the defendant during a custodial interrogation. I n permitting the witness’s testimony, the Court held that unwarned questioning of the defendant “d id not abri dge11 “Where an unwarned s tatement is pres erved for use in s ituat ions th at fal l outsi de the sweep of t

he Miranda presumption, the ‘pr

imary cr iteri on of admissibility [remains] the “old” due pro cess voluntarin ess test. ’” Elstad , 470 U.S. at 307-08 (quoting Ste phen J. Sc hulhofer, Confessions and the Court , 79 Mich. L. Rev. 865, 877 (1981 )).

12 See, e.g.
, United States v. Crowder , 62 F.3d

782, 78 6 (6th Cir. 1995) (stat ing that “ non-testi monial physic al evidence
, such as the s hotgun, discove

red due to an unwarned s tatement i s admissible if the unwa rned statem

ent wa s voluntary”); United States v. Mendez , 27 F.3d 126, 130 (5th Cir. 1994) (“The deri vative eviden

ce rule operates [in the Miranda cont ext] only w hen an actua l constitutional vio lation occur s, as where a su spect confe sses in respo nse to coercion.”); United States v. Gonzalez-Sandoval , 894 F.2d 1 043, 1048 (9th Cir. 1990) (admitting deportation record obtained in violation of Miranda absent coercion or a denial of due process); United States v. Bengivenga , 845 F.2d 593, 600-01 (5th Cir. 1988) (admitting bus ticket and baggage c

laim st ubs obtain

ed from Miranda violation); United States

v. Sanginet

o-Miranda , 859 F.2d 1501, 1514-19 (6th Cir. 1988) (admi tting cont

raband discovered asa result of a Miranda violation); United States v. Morales , 788 F.2d 883, 886 (2d C ir. 1986) (perm itti ng stat ement obtai

ned in vi olation of Miranda to be used in establishing p robable cause to arre st).

-12- [the defendant’s] constitutional privilege against compulsory self-incrimination, butdeparted only from the prophyla

ctic standards later laid down by this Court in Miranda to safeguard that privilege.” Tucker
, 417 U. S. at 4 46. In answering “ho w sweeping the j udicially imp osed consequenc

es of this disregard shall be,” the Court

declined to suppress the fruit of the violation, or the testimony of the State’s witness, in the absence of a need to deter police conduct or a nee d to protect agains

t unreliable evidence resulting from actual coercion. Id. at 447-49.

A similar rationale was later used in Oregon v. Elstad , 470 U.S. 298 (198 5), in which th e Courtpermitted a second volun tar y confession to be u sed as evidence

after the defe

ndant’s first voluntary confession was obtained in violation of Miranda

. The Elstad Court stated that while the “fruit of the poisonous tree” doctrine called for suppression of evidence upon a finding of a Fourth Amendment

violation, the same result did not necessarily follow when o fficers erred “in administering the prophylactic Miranda procedures.” Elstad , 470 U.S. at 309. Unless a court finds “any actual coercion

or other circums

tances calcula

ted to undermine the susp

ect’s ability

to exercise his free will,” a technical violation of M iran da “should not breed

the same irremed

iable consequences as police inf ring ement of the Fifth Amendment itself.” 11 Id. Finding that the first confession was given voluntarily and without any actual coercion, the Court permitted the second confession into evidence, stating that “little justification exists for permitting the highly probative evidence of

a voluntary

confession to be ir

retrievably

lost to the factfinder.” Id. at 312. Alt hough the Elstad Court specifically declined to reach the question of whether its

rationale would admit nontestimonial evidence obtain ed after a violation of Miranda , several lower federal courts have permitted such evidence in the absence of actual coercion. 12
Although the Tucker

and Elstad rationales have been follow ed by other courts, a recent decision from the United States Supreme Court has cast some doubt as to the true nature of Miranda ’s pr ocedur es. In Dickerson v. United States , 530 U.S. 428 (2000), the United States Supreme Court held that Miranda was a consti tutional decision t hat could n ot be legi slative ly overruled by Congre

ss, and at least

one court has asserted that this holding significantly undermines the rationales of Tucker

and Elstad to the extentthat these cases would permit non-te

stimonial fruits of a Miranda

violation. In People v. Trujillo , 2000 WL 1862933 (Colo. Ct. App. Dec. 21, 2000), the13 More sp ecifically, the Co lorado C ourt of Ap peals dismiss ed the issue stating that [t]he Peo ple rely on Oregon v. Elstad , 470 U .S. 298 (1 985), in wh ich the Supr eme Co urt held tha t M iranda violations, be ing “proce dural,” did not mand ate applica tion of the “fruit of the pois onou s tree” analysis set f

orth in Wong Sun v. United Stat es , 371 U.S. 471 (1963 ). However, in Dickerson

v. United States , 530 U .S. 428 (2 000), the S upreme C ourt held tha t Miranda an nou nced a constitutional, not a procedural rul e, and specifi

cally dis tinguish ed Or egon v. Elstad , on that basis. Accord ingly, we conclude that the “fruit of t

he poisonous tree” analysis employed in James v. Illino is
, applies here.

14 Dickerson , 530 U.S. at __ (“The dissent argues t hat it i s judicial

overreaching for this Court to hold [secti on] 3501 unconstitu

tional unl

ess we hold that the Miranda warnings are required by the Constitution, i n the sense that nothing else will suffice to satisfy constitut ional requir

ements. But we need n ot go farther

than Miranda to decide t his case.”) (citation omitted).

15 D ickerson

, 530 U .S. at __ (“A s discussed a bove, [sec tion] 350 1 reinstates the to tality test as suffic ient

. Section 35 01 therefo re cannot b e sustained if Miranda is to remain the la w.”).

-13- Colorado Courtof Appeals reje cted an argume

nt that the exclusiona

ry rule did n

ot apply in

the Fifth Amendment

context and found that Dickersonessentially elevated Miranda ’s procedures to that of constitutional req

uirements. 13

After carefully c onsiderin g Dickerson , we disagree t hat its rationale n

ow compels applic

atio n of the exclusionary rule to non-testimonial evidence for a failure to give Miranda warnings. While

we acknowledge that

the rationales of Tucker

and Elstad depended upon the fact that a violat

ion “in administering the prophylactic Miranda procedures” wa

s not, without more, a

violation of the Fi

fth Amendment

itself, Dickersondi d not hold otherwise. Importantly, Dickersondid not overrule Tucker or Elstad , nor did it repudiate the reasoning adopted by these cases. I n fact, Dickerson even approved of Elstad ’s language con cerning Miranda ’s “prophylactic” procedures as recog nition of “the fact that unreasonable searches under t he F ourth Amendment are different from unwarned interrogation

under the Fifth Amendment.” Id. at __. Wi th its express acknowledgment that the exclusionary

rule operates differently under the Fifth Amendment, Dickersonis more properly read to reaffirm that Miranda ’s specific procedures are still prophylactic in nature.

The reasoning adopted by the Colorado Court of Appeals in Trujillo seems to closely follow Justice Scalia’s dissent in Dickerson , wherein the vie w was expressed tha

t Miranda ’s requirements

are now the only measures that can satisfy c onstitutional concerns. Certainly if this were true, then

one would be compelled to conclude that a violation of Miranda

is also now a violation of the Fifth Amendment. We disagree, h owever, that such a reading naturally follows from the majority ’s decision, if only because this reading is contradicted by the language of the opinion itself. Not only didthe majority plainly refuse t o extend its holding that far, 14 but the majority also limited its decision to holding that the “t otality of the cir cumstances” tes

t, without more, is in

adequate to protect the privilege against self-incrimination. 15 Indeed, w hen read in this context, Dickerson practically

does little more than did Miranda itself, wh ich, in hol ding t hat the “totality of the circumstances”

test was insuffic

ient to safegua

rd Fifth Amendment

protections, was clear that the constitution did n ot re quire any particular set of procedures. See Miranda , 384 U.S. a t 467 (“We16 In further recognition t

hat the specific Miranda procedures themsel ves were n

ot const ituti onally required, the Miranda Court even invited Congress to develop alternative procedures to protect the pri vilege agains t self

incrimination. See 384 U.S. at 490 ( “[T]he Const ituti on does not re

quire any

specif ic code of pr

ocedures f

or protecting the privilege a

gainst sel

f-incri mination duri

ng custodial i

nterrogati

on. Congress and th

e States are free

to develop their

own safeguards for the privilege, so long as they are full y as effective as t

hose described above in informing accuse d persons of their right of silence and in affording a continuous opportunit y to exercise it.”).

As it is well es

tablished t

hat Congres s is without pow er to define su bstantive co nstitutional rights, see City of Boerne v. Flores , 521 U.S. 507, 519 (1997), the particular wa rnings outlined in Miranda cannot them selves be co terminous w ith the Fifth Ame ndment. W e believe that the Dickerson Court recognized t

his crucial

fact and limited its opinion ac cordingly by holding si mply that Congress fail

ed to rise to t

he Miranda Court’s challenge of issui ng adequa te safeguard s for the prote ction of the Fifth Amend ment.

-14- cannot say that the Constit

ution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted.”). 16

Moreover, merely re

cognizing that Miranda

is a decision of constitutional law does not mean that a violation of the particular procedures set forth in that decision must also be a violation of the constitution itself. For example , this Court has long recognized that the Miranda decision is one of

a constitutional nature, as we have repeatedly perceived ourse lves to be bound by

that decision. See, e.g. , Shannon v. State , 221 Tenn . 412, 420, 427 S.W. 2d 26, 29 (1968) (reco gnizing Miranda as a constitutional decision and stati ng that “[l]et it

be noted that the concern of this Court is not to favor

a defendant but to see that the scales of justice be in balance between him and the State, which

cann ot be if

the constitutional guarantees of Miranda can be withheld by

its officers”).

In so recognizing, however, we have never viewed the failure to administer the Miranda warnings as an actual violation of the Fifth Amendment, which would thereby compel suppression of all the fruit of that violation. Cf. State v. Crump , 834 S.W.2d 265, 270 (Tenn. 1992) (recognizing that the mere failure to administer war

nings, as opposed

to a failure to hon

or invocation of r

ights, is not itself a Fifth Amendment violatio

n); State v. Smith , 834 S.W.2d 915, 919-21 (Tenn. 1992) (ad mitting fruits of a Miranda

violation upon a finding that thedefendant’s sec ond confession wa

s “given knowing

ly andvoluntarily,” and was not the result of “coercive tactics” or e fforts “to wear down Smith’s resistence and overcome his free will”). The majority’s opinion in Dickersondoes not now compel a different re

sult for our case

s.

Prior to Dickerson , the federalcourts seem to have largely favored admitting non-testimonial evidence derived from a

violation of Miranda , absent actual coercion of the defendan

t’s statements. We d o not view Dickersonas now compelling a finding that a failure to administer Miranda warnings is itself a violation of the Fifth Amen

dment. We also disag

ree that Dickersoncompels the conclusion that a violation of Miranda mandates a per se exclusionary rul e for al l fruits of that violat ion. A ccordingly, although we acknowledg e that this issue has yet to be definitively settled by the United States Su

preme Court, we recognize that the clear trend under the federal constitution is to admit non-testimonial evidence, so lon g as the statements revealing the non-testimonial evidence were not coerced.

TENNESSEE LAW17 While other cases f rom the Court of Cri

minal Appeals hold t

hat witnes ses discovered f rom an illega l
statement should be suppresse d, these case s arise in the con text of a statement made f ollowing an i

llegal arr est in act ual violat ion of the Fourth Amend ment. See State v. Will iams , 784 S.W.2d

660 (Tenn.Crim. App. 19 89); State v. Story
, 608 S.W .2d 599 (Tenn. C rim. App. 1 980).

-15- Although this Court has expressly rejected the Tucker and Elstad rationales with r egard to admission of a subsequent confession obtained after an initial unlawful confession, State v. Smith
, 834 S.W.2d 915, 921 (Tenn. 1992), the same a pproa ch doe s not n ecess arily f ollo w unde r Arti cle I, section 9 of the Tenne ssee Constitution when the issue is admission of tangible, non-testimonial evidence. As is the case with t he Fifth Amendment, Article I, section 9 is concerned only with a defendant’s coerced, sel f-incrimi nating statements , and this provision h as never been in

terpreted to provide a per

se exclusion of

non-testimonial evidence. See State v. Frasier , 914 S.W.2d 467, 473 (Tenn. 1996) (declining to adopt “a literal interpretation of the term ‘evidence’” in Article I, section 9 by maintaining the traditional Fifth Amendment distinction between testimonial and nontestimonial evidence); Delk v. State
, 590 S.W.2d 435, 440 (Tenn. 1979) (“We do not agree that the Te nnessee prohibition against self-incrimination is broader or different in any application there o f because of the use of the word ‘evidence’ instead of the word ‘witness.’”). Moreover, “[a]bsent

someofficially coerced self-accusation,” the privilege ag

ainst self-incrimination “is not violated by

even the most damning admissions.” State v. Williams , 623 S.W.2d 11 8, 121 (Tenn. Crim. App. 1981). Indeed, courts in this state have permitted the “fruits” of a Miranda violation when the

fruit is not that of a subsequent confession by the d e fendant. For example, in State v. Tidwell , 775 S.W.2d 379 (Tenn. Crim. App. 1989), the Court of Criminal Appeals admitted the testimony of a witness whose identity was discovered throu gh unw arned custo dial i nterr ogati on. In addressing the defendant’s argument that the testimony of another witness should have been suppressed as fr uit of the violation, the c

ourt stated that

[t]he defendant’s argument confuses the scope of t he excl usionary ru

le in Fourth Amendment

cases with the excl

usionary ru

le in Fifth Amendmen

t cases. The Fif

th Am en dment

exclusionary rule is limited in scope to the exclusion of confessions obtainedin violation of an accused’s constitutional rights. Evidence derived from an illegally obtained confession is admissible notwithstanding the confes si on was, or should have been, suppressed. There is one exception to this rule. If the confession from which the evidence was derived was coerced in the due process sense, the evidence is not admissible. This exception is not applicable in the case sub judice

.
Id. at 388 (emphasis added) (citations omitted). 17 Likewise, in State v. Kyger, 787 S.W.2d 13, 24 (Tenn. Crim. App. 1989), the Court of Criminal Appeals addressed whether a defendant’s consent to provide “fingerprints, photographs, [and] handswabs” following an illegal custodial interrogation should have been suppressed. In allowing the admission of the non-testimonial evidence, the court stated that “[e]vidence derived from an uncoerced confession illeg all y obtained through such a [ Miranda ] violation may be admissible notwithstanding whether the confession was or should have been suppressed.” Kyger, 787 S.W.2d at 24.18 As the concurring/dissenting poignant ly explains, to the

extent that actual coercion was i nvolved in Rice to obtain the co nfession, the fruits of that confessio n would b e inadmissib le today. However, the lar ger point il

lustrat ed by this Court’s decision in Rice is that a per se exclusion o f all fr uits of a confessi on has never been required by the constit ution or laws of this st ate. To tha t exte nt, Rice lends gr eat weig ht to our conclusi

on that Ar

ticle I, sect ion 9—which had been the l aw in Tennes see for

three quarte rs of a century p rior to that dec ision, see Tenn. Const. art. XI, § 9 (1796)— does not necessarily compel exclusion of physical evidence discovered from an unlawful confession.

-16- Although this Court has y et to address this is su e with r egard to non-testimonial evidence since Miranda , we have previously admitted evidence obtained from an illega l confession, even though the confession itself was excluded. In Rice v. State , 50 Tenn. (3 H eisk.) 21 5 (1871), the prosecutor

impro perly induc ed a defendant to reveal the location of stolen money orders, and the defendant gave a full confession revea ling t he location of the property. The defendant was then indicted for larceny and for knowingly re ceiving s tolen goods with the intent to deprive the true

owner thereof. In permitting

the physical evidence obtained from the confession, the Court stated that “although a confession

obtained by means of promises or threats canno

t be received; y

et if, in consequenceof that confession, certain facts tending to establish the guilt of the prisoner, are made known, evidence of these fac ts may be receive d.” Id. at 223. The Rice Court allowed the j ury to consider “the fact of the witness having been directed by the prisoner where

to find the goods, and his having found

th em accordingly,” though it did not allow “the acknowledg ment [through the confession] of the prisoner having stolen or put them there.” Id. at 224-25. 18

Given these federal and

state authorities, we conclude that a per se exclusionary rule, which would automatically exclude non-testimonial evidence obt ai ned from a techni

cal failure to give Miranda warnings, is not w

arranted. I

nstead, we hold

that a defendant may seek suppressionof nontestimonial evidence discovered through his or her unwarned statem

ents only whe

n the statements

are the product of

an actual violation of the privilege against self-incrimination, i.e. , such as when actual coercionin obtaining the st atement is involved

or when the invoca

tion of the right to

remain silentor to have counsel present is not “scrupulously honored.” Cf. State v. Crump , 834 S.W.2d 265, 270 (Tenn. 1992) (holding that a refusal to honor the right to remain silent, “by definition, is of co nstitutional magnitude”). In those cases in which the fruit of the violation involve s th e defendant’s testimonial or communicative statements, however, the heightened protections of State

v. Smith
, 834 S.W.2d 915 (Tenn. 1992), safegua

rding the privile

ge continue to a

pply with full

force in this stat e, and our de cision tod ay should not b e read as dim inishing t he c oncerns expressed by Smithin a ny wa y.

The concurring/dissenting opinion expresses the concern that allowing non-testimonial evidence represents

“a gross incursion upon the letter and spirit of Miranda , and tends to invite open defianceand disregard of the Miranda doctrine by those bound to respect it . . . .” We are certainly mindful of this concern, but we disagree that today’s decision will invite open defiance of Miranda

. We reiterate that w

here law enfor

cement officer

s act in actual vio

lation of th

e fede ral or state constitutions,

their actions will bring forth heavy consequences—all “fruit” r esulting from the violation, tes timonial and non-testimonial together, will not be permitted to be used as evidence. The judiciary of this state will not tolerate actual police

coercion, eithe

r physical o

r psycholog

ical, used to obtain statement

s from a suspect, and as has been expressed in other areas of the law, it is19 In cases invo lving statemen ts following an initial u nlawful confes sion, see State v. Smith , 834 S.W.2d 915,

921 (Tenn. 1992), the in terest i nvolved is precisely t

hat of preventing one from being comp elled to testify against himself. In those t ypes of ca

ses, t herefore , the appr

oach advocat

ed by the c oncurrin

g/ dissenting

opinion is a much more practical remedy because it is designed to furt her the actual right

at issue. As no d efendant is pr ivileged to have non-test imonial evidence excluded under the Fifth Amendment or Article I, section 9, exc lusion of such evi dence in the absence o f a constitut ional violat

ion (1) adds very little t o the accused’s interest in not being compelled to testify against himself, and (2) adds significant and unnece ssary barriers to the use of otherwise legitimate law enforce ment practices.

-17- notunfair “to require that one who deliberately goes pe rilously close to an area of proscribed

conduct shalltake the risk that he may cross the line.” See Boyce Motor Lines v. United States , 342 U.S. 337, 340 (1952). Th

is is the price dema

nded for jealous p

rotection of cons

titutional libertie

s.

In the absence of a need to deter constitutional violations , however, thedemand for such a heavy-handed

remedy is simply not as compelling, and the broad exclusionary rule advocated by the concurring/dissentingopinion will undoubtably work to penalize even legitimate law enforcement activity. In the absence of actual coercio

n, the price of exc

luding relevan

t, probative, and r

eliable evidence may be

proportionally too expensive, especially when the interest of the accused is simply that of not being compelled

to testify against himself. 19 Indeed, this view is precisely that expressed by Justice O’Connor’s concurring-dissenting opinion in New York v. Quarles , 467 U.S. 649 (1984), wherein she state

d that

[t]o be sure, admission

of nontestimonial e

vidence se

cured through informal custodial interrogation w

ill reduce the inc

entives to enforce the Miranda

code. But that fact simply begs the

question of how much enforcement is appropriate. . . . The Miranda decision quite practically d oes not express

any societal interest in having those warning[s] administered for their own sake. Rather, the warnings and waiver

are only required to en

sure that “testimony ” used against the ac cused at t rial is voluntarily

given. Therefore, if the testimonial aspect s of the accused’s custodial communications are suppressed, th e failure to administer the Miranda warnings should cease to be of concern. The harm caused by failure to administer Mira nda warnings relates only to admission of testimonial self-i n criminations, and the suppression of such incriminations should by itself produce the optimal enforcement of the Miranda

rule.

New York v. Quarles , 467 U.S. at 668-69 (1984) (O’Connor, J., concurring) (emphasis added) (footnote and citations omitte

d); see also Tucker , 417 U.S. at 4 62 (White, J., concurring) (“The arguable benefits from

excluding such [ev

idence] by w

ay of possibl

y deterring police conduct that might compel admissions are, in my view, far outweighed by the advantages of having relevant and probative [evidence

], not obtained by

actual coercio

n, available at c

riminal trials to ai

d in the pursuit of truth. The same results would not necessarily ob tain w ith respect to the fruits of involuntary confessions.”).

The assumption underly ing the view of th

e concurring/

dissenting opinion

is th at law enforcement

officers will for

go the opportunit

y to gain a valid, voluntary

confession merely for the20 See Arizona v . Fulminante , 499 U .S. 279, 2 96 (199 1); see also Bruton v. United Sta tes , 391 U.S. 123, 139- 40 (196 8) (W hite, J., dissenting):

[T]he defendan t’s own confes sion is prob ably the most probative and damaging ev idence t hat can be admittedagainst him. T hough itself an o ut-of-court stat eme nt, it i

s admitted as r

eliable evi

dence because i t is an admissio n of guilt by the de fendant and constitutes dire ct evidence of the facts to which it r

elates. Even

the testi mony of an eyewit

ness may be less reli

able than the defendant’s own confession. An observer may not correctly perceive, understand, or remember the acts of another, but the admissi

on s of a defendant come from the actor himself, the most knowledgeable and unimpeac hable sour ce of informa tion about h is past cond uct. Certainly, confessions have profound impact on the jury, so much so that we may justi fiably doubt its abili

ty to put them out of mind even if tol d to do so.

21 The concurri

ng/dis sentin

g opinion mi

nimizes the abil ity of the courts to determine when coerc ion has been used in obtaining state ments from a n accused , and in advo cating its broa d exclusion ary rule, that op inion appa rently contemplatesthat no incr iminating

statem ent can be the product of a free will. Even Mirandadid not accord a presumpti

on of coercio n such conc lusive weight, a s that opinion recognized that at least some suspects wi ll make incriminatingstatements vo luntarily. See 384 U.S. at 478. Moreover, as was recognized by the Supreme Court in Elstad
, There is a vast di

fference bet

ween the dir

ect conse

quences f

lowing f rom coercion

of a confess

ion by physical violence o r other delib erate mean s calculated to break the su spect’s will and the u ncertain consequences of disclosur e of a “guil

ty secret ” freely giv en in response to an unwarned but noncoercive question, as in this case. [The] content ion that i

t is impossi

ble to perceive an

y causal disti nction between t

his cas e and one in

volving a confess

ion that is coerced by torture is who lly unpersuasive.

. . . It is difficul

t to tell with certaint

y what motivates a suspect to speak. A suspect’s confessi on may be traced to fa ctors as disp arate as “ a prearre st event such as a visit with a minister,”

or an interv

ening event such as the e xchange of words respondent ha d with his f

ather. We mu st conclude that, absent d eliberately c oercive o r improp er tactics in ob taining th e initial statem ent, the

mere fact t

hat a suspect

has made an unwarned admiss ion doe s not w arrant a pre sumption of
comp ulsion. 470 U.S. at 312-14 (footnote and citations omitted) (emphasis added).

-18- sake of obtaining non-testimonial evidence of dubious probative value. As courts have recognized, however, a confession by a defendant is “like no other evidence,” 20 and the sheer power of an admission of guilt is precis ely the rea

son th a t we go to extraor dinary leng

ths to ensure that it

is reliable, i.e. , voluntarily

made without compu

lsion or coercion

, and that it

is corroborated by

some other evidence. See State v. Smith , 24 S.W.3d 274, 281 (Tenn. 2000).

It is difficult to believe that law-enforcement officers would risk exclusion of a confession, the most pr obative and powerful evidence of guilt, merely for the possibility of obtaining other evidence of indeterminate probative value,

and practically

speaking, we doubt that this would ever be the case. Indeed, in this state, if the statements leading to the discovery of the physical evidence

are act ual ly co erce d in any w ay, ei the r ph ysic all y or p sych olo gica lly, then all of the statements

and physical evidence discovered

therefrom will be excluded, and the state may be without any evidence to prosecu te the crime. While we are mindful of the theoretical concerns expressed by the concurring/dissenting opinion, we believe that the current framework of Miranda as developed by the cou rts of t his sta te a deq uat ely p reve nts suc h co ncer ns f rom beco min g a re ali ty. 21
Turning to the facts

of this case, we see no evidence of coercion by the police, either phy sical

or psychological, in obtaining the location of the stolen property . T he appellee i nitiated the22 There is a hintthroughou t the appellee ’s pleadings in the trial court that the police had informati on of the stolen property a nd that the po lice agreed not to pros ecute the ap pellee if he wo uld help gath er evidenc e against Cha rlie Thompson. While Officer Johns on testif ied that t he offi cers were

in fact aware of some of

the stolen items, such as the rifle and scope , all

of the offi cers de nied mak

ing an y sta tement s or prom

i ses of leni ency. No proof whats oever was introduced

by the appe llee of t hese prom ises, and as such, we cannot say that the f inding of the trial

court as to the voluntarine ss of the appel lee’s st atements is

against t he weight of t

he evidence.

23 Indeed, neither the Fifth Amend ment nor A rticle I, section 9 applies to ev idence that is d isclosed vo luntarily and free from compulsion, even withoutthe requisite wa rnings. See State v. Hurle y , 876 S.W.2d 57, 66 (Tenn. 1993);

see also Miranda , 384 U.S. at 478 (“T he fundament al import of the pr

ivile ge whil e an indi vidual is in cus

tody is not whether he is al

low ed to tal

k to the pol

ice wit hout the benefit of warni

ngs and coun sel, but

whether he can be interr ogated. . . . Volunt

eered statements of any kind are no t barred b y the Fifth Ame ndment an d their adm issibility is not affected b y our holding today.”).

-19- conversationof t he s tol en p rop ert y, and he voluntarily agreed to show the officers where

the property

was located. After recover ing the stolen com

puter from the ra

vine, the record

shows that it

was the appellee who then asked the officers whether he could show themother property. Even while back at his own ho use later in the afternoon, the appellee produced several heaters and a step ladde r , apparently

on his own volition without anyprodding or questioning by the officers. Furthermore
, w e can f ind no t hrea ts o f pr ose cut ion for oth er of fens es, nor can w e fi nd a ny e vidence that th e appellee’s actions were “compelled by promises of leniency .” Cf. State v. Smith , 933 S.W.2d 450, 456 (Tenn. 1996) (

“The Fifth Amend

ment does not conde

mn all promise-induced admissions and confes sio ns; it condemns only those which are compelled by pr omises of leniency.”). 22 Quite sim ply, we see no indicat ion that the office

rs’ acti ons repr esented “an effort to wear down [the appellee’s] resistance and overcome his free will.” Cf. Smith , 834 S.W.2d at 920.
We note that the Court of Criminal Appeals reached the opposite conclusion on this issue, finding that the totality of the circumstances indicated that the appellee was coerced into revealing the location of

the sto len pro pert y. In particular, the intermediate court relied heavily upon the fact that the appellee was in custody and in handcuffs during the entir

e expedition. Althou

gh these facts

are undisputed, we disagree that they alone converted the situation into one that was unduly coercive. As t his Court has recognized, if custody were alone “sufficient to vitiate the voluntariness of a subsequent

confession, anaccused could never give a voluntary conf ession after arrest.” Smith , 834 S.W.2d at 920. 23 Moreover, while the Court of Criminal Appeals also found coercion in part from the failure to administer the Miranda warnings, “[t]he failure of police to admini st er Miranda warnings does not mean that the statements received have actually

been coerced,

but only that c

ourts will presume that the privilege against compulsory self-incr imination has not be en intelligently exercised.” Elstad , 470 U.S. a t 310. Ac cordingly, viewing the matter within the totality of the circumstances,

we agree with

the trial court tha

t no actual coerc

ion was involved in

this case, and

w e hold that the fruit of the Miranda violation, i.e. , the physical property rec overed , need not b e suppressed.

CONCLUSION-20-

In summary, we hold that the appellee in this case

was subjected to custodial interrogation in violation of the requirements of Miranda v. Arizona , 384 U. S. 436 (1966 ). As such, any st atementsmade by the a ppellee in respon

se to such interro

gation are supp

ressed. Nevert

h eless
, because all of the appellee’s statements in this case were voluntary and not the pr oduct of actual coercionor other effort

s designed to ove

rcome hiswill, we hold that the physical evidence recovered

as fruit of that violation neednot be suppressed. The judgment of the Court of Crimina

l Appeals is affirmed in part and reversed in part.

In the trial court,

the appellee pleaded guilty reserving a certified que stion of law thought by the parties and both lower courts to be dispositive of the case, and we accepted jurisdiction on this basis. However, throug

h our analy

sis of, and consultation with, various legal authorities, we have determinedthat the Miranda violation was in fact not dispositive of the case because n ot all fruits of that violation need to be suppressed. See Stat e v. Wilkes , 6 84 S.W.2d 663, 667 (Te nn. Crim. App. 1984) (stating that an issueis deemed to be dispositive when the appellate court “must either affirm the judgment or reverse and dismiss”). As such, we can neither affirm the judgment of the trial court as it stands, because some of the evidence considered was certainly inadmissible, nor can

we reverse and dismiss the case, because the ph ysical eviden ce against the a ppellee is proper

ly considered as e

vidence of guil

t.
Although we do not accept jurisdiction when the certified question is not dispositive of the
case, State v. Preston , 759 S .W.2 d 647, 651 (T enn. 1 988) ( “If the appellate court does not agree that the certified question is dispositive, appellate review should be denied.”), the non-dispositive nature of this is sue did not come

to light until after this Court granted permission to appeal and heard argument by the parties. Under

the spe cial circumstances of this case, especially given that the suppression issue was one of first impression for this Court, wefelt it appropriate to address the issue

as stated in the cer

tification and as a

ccepted for ap

peal by this Co

urt a nd t he Court of Criminal Appeals. See State v. Jennette , 706 S.W.2d 614, 617 (Tenn. 1986). We hasten to add, however, that this decision today

in no way signals a departure from the rule that appellate review will be denied

w hen the issues certified for review are in fact not dispositive of the case. See Tenn. R. Crim. P

. 37(b)(2)(i).

As a final note, we observe that when the appellee pleaded guilty to the charges of bur glary and aggravated

burglary , he did so with the e

xpectation that his st

atements to the poli

c e wer e admissible

as evidence against him. Because the Miranda violation in this case requires suppression of the appellee’s statements made in response to interrogation, the appellee’s initial presumption concerning the evidence to be presented against him was not accu rat e. C ons equ ent ly, in the exercise of our discretion to fashion appropriate relief under the circumstances of each individual case, see Tenn. R. App. P. 36(a), we remand this case to the Dyer County Circuit Court, giving the appellee the opportunity to withdraw his original plea should he so desire.

Costs of this appeal shall be taxed equally against the appellant, the State of Tennessee, and the appellee, Timothy Walton.-21- ____________________________________ WILLI AM M. BARKER, JUSTI CE