IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

October 1, 2008 Session

STATE OF TENNESSEE V. KENNETH C. DAILEY, III

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Davidson County

No. 2004-B-1779 Steve R. Dozier, Judge

No. M2007-01874-SC-R11-CD - Filed January 2, 2009

 

We granted permission to appeal the Defendant’s certified question of law to determine whether the

police violated the Defendant’s constitutional rights by subjecting him to a custodial interrogation

without first informing him of his constitutional rights as required by the Supreme Court’s decision

in Miranda v. Arizona. We hold that the Defendant’s confessions, both obtained in violation of his

federal and state constitutional privileges against self-incrimination, should have been suppressed.

Accordingly, the Defendant’s conviction must be vacated and the charge dismissed. 

Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals

Reversed; Conviction Vacated; Charge Dismissed

CORNELIA A.CLARK,J., delivered the opinion of the court, in which JANICEM.HOLDER,C.J.,GARY

R. WADE, and WILLIAM C. KOCH, JR., JJ., and E. RILEY ANDERSON, SP. J., joined.

J. Carlton Drumwright, Brentwood, Tennessee, for the appellant, Kenneth C. Dailey, III.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; Elizabeth

T. Ryan, Associate Deputy Attorney General; Victor S. Johnson III, District Attorney General; and

Pamela Sue Anderson, Assistant District Attorney General, for the appellee, State of Tennessee.
2

OPINION

PROCEDURAL BACKGROUND

This matter is before us for the second time. After being charged with first degree murder,

the Defendant filed a motion to suppress two incriminating statements he made to police officers

concerning his role in the victim’s homicide on the basis that he had been subjected to a custodial

interrogation without the requisite Miranda warnings. After a hearing, the trial court denied the

Defendant’s motion. The Defendant subsequently entered a guilty plea to second degree murder but

reserved for appeal the following certified question of law regarding the admissibility of his

statements: 

Whether the Defendant was subjected to a custodial interrogation by Metro

Police Detectives on or about May 4, 2004 such that his subsequent statements were

taken in violation of his rights pursuant to Article 1, Section Nine of the Tennessee

Constitution, the Fifth Amendment of the United States Constitution and the Due

Process Clause of the Fourteenth Amendment of the United States Constitution. The

Defendant gave two statements to detectives on May 4, 2004. No Miranda warnings

were given by the detectives prior to the first statement given by Defendant. It is the

Defendant’s position that this was a custodial interrogation thereby requiring

Miranda warnings. Immediately following Defendant’s first statement, Miranda

warnings were given by the detectives and the Defendant gave a second statement.

It is the Defendant’s position that this second statement was obtained by the

detectives using interrogation techniques expressly rejected by the United States

Supreme Court in Missouri v. Seibert, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

Testimony was given byDetective Mike Roland that the State’s proof of Defendant’s

guilt consists entirely of the statements he gave on May 4, 2004 thereby making this

question dispositive of the case.

The parties agree and the Court affirms that the certified question set out

above is expressly reserved as part of the plea agreement and that all parties consent

to this reservation. Further, all parties agree that this question is dispositive of the

case. 

On appeal the first time, the Court of Criminal Appeals dismissed the appeal on the grounds

that the record “does not demonstrate that the certified question is dispositive of the case.” We

granted permission to appeal and disagreed with the intermediate appellate court’s analysis,

concluding that the certified question was dispositive. We therefore remanded the case to the Court

of Criminal Appeals for its consideration of the certified question on its merits. 

On remand, the Court of Criminal Appeals concluded that the evidence did not preponderate

against the trial court’s determination that the Defendant had not been in custody when he made his

initial confession. The intermediate appellate court therefore affirmed the trial court’s denial of the

Defendant’s motion to suppress. We granted the Defendant’s application for permission to appeal.
3

FACTS

Metro Nashville police Detective Mike Roland testified at the suppression hearing that, in

April 2004, a woman’s severely decomposed body was found in an abandoned vehicle at Tommy’s

Wrecker Service in Davidson County. A piece of rope was wrapped around the woman’s neck. The

victim was transported to the Medical Examiner’s Office for examination and was identified as

Nancy Marie Lyons.

In an attempt to discover information about the victim, Det. Roland interviewed several of

the Wrecker Service’s employees. In conjunction with the investigation, all of the employees were

asked to submit “elimination [finger]prints.” The Defendant, Kenneth C. Dailey, III, was one of the

employees interviewed and fingerprinted by the police. Although they had no forensic or other

evidence linking the Defendant to the body, the police, based upon “gut feelings and instincts,”

subsequently decided that they wished to interview him further. Det. Roland asked the son of the

owner of Tommy’s Wrecker Service to tell the Defendant that the police needed to retake his

fingerprints. 

Det. Roland admitted that the real reason for requesting the Defendant to come down to the

police station was to interview him and that a second fingerprinting was unnecessary. Det. Roland

also testified that, at the time the Defendant reported for hissecond meeting with the police, they did

not have probable cause to arrest him. Indeed, Det. Roland stated that he “had no evidence to arrest

[the Defendant] on” and that he “had nothing on him.” The decision to ask for new prints was made

because the officer “didn’t wanna [sic] scare him.” 

According to Det. Roland, the Defendant drove to the station at the appointed time and

parked across the street. When the Defendant entered the police station, Det. Roland met him in the

front lobby and asked him “if it was okay if [they], maybe, talked a little bit before [they] did the

[finger]prints.” Det. Roland described their initial interaction as “pleasant.” When the Defendant

agreed to speak with Det. Roland, the officer escorted him back to an interview room in the Criminal

Investigations Division (“CID”) area. The men passed through two sets of interior doors to reach

the CID area. Det. Roland asked the Defendant to take a seat behind the table in the interview room.

After the Defendant did so, Det. Roland left to retrieve his paperwork. Det. Roland testified that the

Defendant was not in custody at this time and was not handcuffed; while he was gone, Det. Roland

left the interview room door open and unguarded. When Det. Roland returned to the interview room,

he was accompanied by Sergeant Pat Postiglione. They entered the interview room and closed the

door behind them. Det. Roland testified that he was armed during the interview; he did not recall

whether Sgt. Postiglione was armed. Det. Roland and Sgt. Postiglione proceeded to interview the

Defendant.

The interview was videotaped and this Court has reviewed the tape. It shows the Defendant

seated in a back corner of the room at a diagonal from the door, facing a table. Det. Roland is seated

across the table and facing the Defendant. Sgt. Postiglione appears to be seated in front of the door,

facing the Defendant. The following summarizes the events portrayed on the videotape. 
4

The interview began with a few minutes of casual conversation about unrelated matters. The

Defendant volunteered some information about how he sometimes closed up the wrecker shop,

beginning with, “One thing I forgot to tell you,” referring to his earlier conversation at the wrecker

shop with an officer. All three men spoke in a conversational tone throughout the interview. 

After approximately three minutes, Det. Roland asked the Defendant whether he had worked

the weekend before the victim’s body had been found. The Defendant answered affirmatively. Sgt.

Postiglione then asked the Defendant if he worked everyweekend, and the Defendant responded that

he worked one weekend a month for the Wrecker Service. The Defendant explained that he would

go to Tommy’s Wrecker Service at 6 p.m. on the Saturdays he worked, close up the business at 10

p.m., leave in the business truck, and then return Sunday morning. Det. Roland then asked the

Defendant if he remembered asking Det. Roland during the initial investigation whether the police

would be able to solve the crime. The Defendant stated that he remembered asking that question and

clarified that he was simply curious. Det. Roland then stated that they had “pretty much concluded”

their investigation and told the Defendant that “this is where it gets a little bit tough for you.”

Det. Roland informed the Defendant that his fingerprints had been found “in a place they

shouldn’t have been.” The Defendant asked whether his prints had been found inside the car. Det.

Roland responded that he was not going to tell the Defendant all of the information that he had. Det.

Roland then told the Defendant that the matter was “very serious” for the Defendant and that the

reason he wanted the Defendant to come to the station was to give the Defendant an opportunity to

talk to them about the matter because the Defendant was “right in the middle of it.” The Defendant

responded, “okay.”

Det. Roland told the Defendant that the problem he had was not whether the Defendant was

involved (in the victim’s death), but why her death happened. He told the Defendant he wanted to

know “why did this lady die?” The Defendant answered, “I have no idea, I know nothing about it.”

Det. Roland then assured the Defendant that there was “no way around” the evidence they had and

that the evidence was “there.” Det. Roland acknowledged that the Defendant had a wife and son and

stated that he did not see the Defendant as a “cruel, mean person.” Det. Roland then told the

Defendant that he needed the Defendant to tell him what happened, to help him determine “where

we go from here.” Det. Roland continued, informing the Defendant that if they went “strictly on the

evidence,” they would have to charge the Defendant with first degree murder. If the Defendant had

a good explanation for the victim’s death, however, it was possible that they could proceed with a

lesser charge.

Sgt. Postiglione then explained that whatever information the Defendant provided to them

would be turned over to the district attorney. Sgt. Postiglione informed the Defendant that, if he said

nothing, the victim’s death looked like a cold-blooded ruthless killing. He told the Defendant that

they knew he was involved, that they were okay with that, but that they wanted him to explain

“exactly why this happened.” The Defendant acknowledged what Sgt. Postiglione was telling him

by repeating “uh huh” a couple of times.
5

Det. Roland resumed speaking to the Defendant, telling him that they knew this was not the

first time the Defendant had picked a girl up. He told the Defendant that they knew “more than what

you can imagine.” The Defendant protested, “I hadn’t picked up a girl.” Det. Roland contradicted

the Defendant and then told him that there were “so many things about the forensics that you don’t

understand.” He told the Defendant that they could have simply come out and picked the Defendant

up and “just done our thing,” but that he felt the victim’s death might have been accidental or

occurred during a robbery. Det. Roland posited that there were several possible explanations for the

victim’s death and that he did not feel it was “ruthless.” He then told the Defendant that the

Defendant was the only person who could give them an explanation. Det. Roland emphasized that

it would not help the Defendant “at all” to refuse to talk to them.

Sgt. Postiglione interjected that, if the Defendant did not tell them what happened, then it

appeared he was covering something up and that he was a cold-blooded individual. The Defendant

retorted that he was “not a cold-blooded individual.” 

Det. Roland resumed and told the Defendant, “now is when you need to talk to us.” The

Defendant challenged them on the fingerprints. Sgt. Postiglione responded they had found prints that

“only the person involved in the homicide would’ve left.” Sgt. Postiglione reiterated that they

already knew that the Defendant was involved in the homicide and reminded the Defendant that he

had a family. Sgt. Postiglione advised the Defendant not to paint himself into a corner. 

Sgt. Postiglione continued, telling the Defendant that Det. Roland had been on the case

“24/7,” that they were not mad at the Defendant, that they did not think he was a monster, but that

he had to explain “why this occurred.” The Defendant responded, “I don’t know what to say.”

Both officers told the Defendant, “tell us what happened.” Det. Roland added that the

Defendant was backing himself into a corner, into a bad position, and that the only way the

Defendant could help himself was to tell them the truth. Det. Roland told the Defendant that he was

“going to have to answer, obviously, for what’s happened, there’s no doubt about it.” Sgt.

Postiglione advised the Defendant to explain in as much detail as he could, and they would then go

from there. He told the Defendant that they understood he was nervous and that they thought he got

caught up in something. The Defendant again responded, “I don’t know what to say.” Sgt.

Postiglione told the Defendant that telling them what had happened would “relieve” him,

acknowledging that the Defendant had a heart and soul.

Det. Roland next asked the Defendant, “where did you meet her at?” The Defendant paused

and then responded, “Murfreesboro Road.” Sgt. Postiglione then advised the Defendant to “go

through it like a story.” The Defendant explained that he had picked the victim up, and she indicated

that she wanted to go back to the Defendant’s place. They drove back to the wrecker business. The

victim wanted more money. She threatened him. The Defendant stated, “I don’t know after that.”

He said that the next thing he knew, she was laying there. He thought he pushed her down, he was

upset, and the next thing he knew, “she was dead.”
The Defendant stated specifically during the second round of questioning that he and the victim had sex at the 1

wrecker shop and that they then argued over how much money he owed her.

6

Det. Roland asked, “how was she dead?” and Sgt. Postiglione told the Defendant that it was

important for him to remember the details. The Defendant then told the officers that he was on top

of her, he had his hands around her throat, and that he tried to cover up what he had done by putting

a piece of rope around her neck. Det. Roland asked a number of specific questions about the rope,

which the Defendant answered. The Defendant also told the officers that he took the victim’s body

and put it in one of the cars on the lot. 

After hearing the Defendant’s explanation of killing the victim, Det. Roland told the

Defendant, “You understand that you have to be charged with something?” Det. Roland then said,

“I want to make this official because that’s what’s going to help you,” and told the Defendant that

he had to read him his rights. Det. Roland asked the Defendant if he had ever had his rights read to

him before, to which the Defendant responded, “no.” The Defendant asked Det. Roland, “does this

mean I’m staying here tonight?” Det. Roland repeated that he was “making it official” and that

meant the Defendant would be staying the night. By this point, approximately twenty-one minutes

had elapsed since the conversation began.

Det. Roland then read the Defendant his rights, during which the Defendant stated that he

was willing to talk. Det. Roland reviewed the rights waiver with the Defendant, and the Defendant

signed the waiver. Det. Roland and Sgt. Postiglione resumed questioning the Defendant. No break

was taken and none of the men left the interview room. At no time did Det. Roland or Sgt.

Postiglione tell the Defendant that the statement he had just given would not be admissible against

him.

 During the initial phase of the second round of questioning, Det. Roland made a couple of

general references to their pre-warning conversation. Overall, however, the second round of

interrogation consisted of the Defendant repeating his confession, adding a few details, and 1

answering additional specific questions by the officers; for instance, how much money the victim

charged him, what had he done with the victim’s purse, and questions about his past activities in

New York and Florida. At the end of the second round, the officers informed the Defendant that he

would be charged with a “standard criminal homicide charge.” The second round of questioning

took approximately eleven minutes. 

STANDARD OF REVIEW

On appeal from a denial of a motion to suppress, we review the trial court’s legal conclusions

de novo with no presumption of correctness. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State

v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997). We will uphold a trial court’s findings of fact in a

suppression hearing unless the evidence preponderates to the contrary. State v. Odom, 928 S.W.2d

18, 23 (Tenn. 1996). However, where the evidence includes a complete and accurate videotape

depiction of the police interview which is the subject of the suppression hearing, the trial court’s
The Tennessee Constitution also protects individuals against compelled self-incrimination: “in all criminal 2

prosecutions, the accused . . . shall not be compelled to give evidence against himself.” Tenn. Const. art. I, § 9. 

The Fourteenth Amendment secures application of the Fifth Amendment to the several states. Malloy v. 3

Hogan, 378 U.S. 1, 8 (1964). 

7

findings of fact with respect to the matters depicted on the videotape are also subject to de novo

review. State v. Payne, 149 S.W.3d 20, 25 (Tenn. 2004). 

ANALYSIS

I. Questioning in a Custodial Setting: Miranda v. Arizona

This case requires us to reemphasize a criminal defendant’s fundamental constitutional right

against compelled self-incrimination as explicated in the seminal Supreme Court case of Miranda

v. Arizona, 384 U.S. 436 (1966). In that case, the Supreme Court undertook an exhaustive

examination of the tension between the government’s interest in obtaining confessions of criminal

behavior and “the privilege against self-incrimination–the essential mainstay of our adversary

system.” Id. at 460. That privilege is set forth in the Fifth Amendment to the United States

Constitution: “No person . . . shall be compelled in any criminal case to be a witness against

2

himself.” After observing that “[w]e sometimes forget how long it has taken to establish the 3

privilege against self-incrimination, the sources from which it came and the fervor with which it was

defended,” Miranda, 384 U.S. at 458, the Court set forth a long line of historical precedent for the

Fifth Amendment, including the Bible, id. at 459 n.27, and the 1637 trial of John Lilburn, id. The

Court then observed that

we may view the historical development of the privilege as one which groped for the

proper scope of governmental power over the citizen. As a ‘noble principle often

transcends its origins,’ the privilege has come rightfully to be recognized in part as

an individual’s substantive right, a ‘right to a private enclave where he may lead a

private life. That right is the hallmark of our democracy.’ . . . All these policies

[underlying the right against self-incrimination] point to one overriding thought: the

constitutional foundation underlying the privilege is the respect a government–state

or federal–must accord to the dignity and integrity of its citizens. To maintain a ‘fair

state-individual balance,’ to require the government ‘to shoulder the entire load,’ to

respect the inviolability of the human personality, our accusatory system of criminal

justice demands that the government seeking to punish an individual produce the

evidence against him by its own independent labors, rather than by the cruel, simple

expedient of compelling it from his own mouth. In sum, the privilege is fulfilled

only when the person is guaranteed the right ‘to remain silent unless he chooses to

speak in the unfettered exercise of his own will.’

Id. at 460 (citations omitted). 
While the State may not use an unwarned confession in its case-in-chief, such a confession may be admissible 4

for impeachment purposes against a defendant who testifies. See Harris v. New York, 401 U.S. 222, 224-26 (1971);

State v. Harts, 7 S.W.3d 78, 85 (Tenn. Crim. App. 1999).

8

Upon recognizing that the Court had “consistently . . . accorded a liberal construction” to the

privilege against self-incrimination, id. at 461, the Court famously held as follows:

when an individual is taken into custody or otherwise deprived of his freedom by the

authorities in any significant way and is subjected to questioning, the privilege

against self-incrimination is jeopardized. . . . [Accordingly,] [h]e must be warned

prior to any questioning that he has the right to remain silent, that anything he says

can be used against him in a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be appointed for him prior

to any questioning if he so desires. Opportunity to exercise these rights must be

afforded to him throughout the interrogation. After such warnings have been given,

and such opportunity afforded him, the individual may knowingly and intelligently

waive these rights and agree to answer questions or make a statement. But unless

and until such warnings and waiver are demonstrated by the prosecution at trial, no

evidence obtained as a result of interrogation can be used against him.

Id. at 478-79 (emphasis added); see also Oregon v. Elstad, 470 U.S. 298, 306 n.1 (1985) (observing

that “[a] Miranda violation does not constitute coercion but rather affords a bright-line, legal

presumption of coercion, requiring suppression of all unwarned statements”); Walton, 41 S.W.3d

at 86.4

By its own terms, Miranda applies to the questioning of an individual who has been “taken

into custody or otherwise deprived of his freedom by the authorities in any significant way.” 384

U.S. at 478. Our first step toward responding to the certified question in this case is therefore a

determination of whether the Defendant was in custody during his initial interrogation by Det.

Roland and Sgt. Postiglione or whether his custody did not commence until the point at which Det.

Roland delivered the Miranda warnings.

II. Defining “Custodial”: Anderson

In State v. Anderson, 937 S.W.2d 851 (Tenn. 1996), this Court held that the test for

determining whether a person is in custody so as to be entitled to the warnings required by Miranda

is “whether, under the totality of the circumstances, a reasonable person in the suspect’s position

would consider himself or herself deprived of freedom of movement to a degree associated with a

formal arrest.” Id. at 855; see also Berkemer v. McCarty, 468 U.S. 420, 442 (1984). To assist in

applying this test, the Anderson court set forth a non-exclusive list of factors relevant to that

“objective assessment,” including 

the time and location of the interrogation; the duration and character of the

questioning; the officer’s tone of voice and general demeanor; the suspect’s method
9

of transportation to the place of questioning; the number of police officers present;

any limitation on movement or other form of restraint imposed on the suspect during

the interrogation; any interactions between the officer and the suspect, including the

words spoken by the officer to the suspect, and the suspect’s verbal or nonverbal

responses; the extent to which the suspect is confronted 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 questions or

to end the interview at will.

937 S.W.2d at 855. This Court stressed that the determination of whether a suspect is in custody for

Miranda purposes is a “very fact specific inquiry.” Id.

The trial court in this case determined that the Defendant was not in custody prior to the

delivery of the Miranda warnings based upon its findings that the Defendant arrived at the police

station voluntarily; was not handcuffed; agreed to speak with Det. Roland; was in the interview room

alone and with the door open for a period; that Det. Roland’s “tone and demeanor were courteous

and polite”; that there were no limitations on the Defendant’s movement “other than one of the

detectives being positioned between the defendant and the door”; and that the Defendant never asked

to leave or to consult an attorney. The trial court concluded that “the defendant was not in custody

until after he made the initial incriminating statements to the detectives.” The trial court failed to

explain, however, what precisely changed in the Defendant’s circumstances after his initial

confession to transform his situation from noncustodial to custodial. Our review of the record

indicates that the only change was Det. Roland’s statement to the Defendant that he would have to

be charged with something and that Det. Roland “want[ed] to make this official because that’s

what’s going to help you.” At that point, Det. Roland told the Defendant that he (Det. Roland)

needed to read the Defendant his rights.

On appeal, the Court of Criminal Appeals concluded that the evidence did not preponderate

against the trial court’s finding that the Defendant was not in custody prior to receiving his Miranda

warnings. As additional support for its conclusion, the intermediate appellate court noted that the

initial portion of the interview lasted approximately twenty-one minutes; the door of the interview

room was not locked; and the Defendant never requested to call anyone. The intermediate appellate

court also determined that the Defendant’s question to Det. Roland as to whether he would have to

spend the night at the police station after Det. Roland informed him that Det. Roland had to “make

it official” indicated that, until that point, the Defendant “believed he was free to leave.” 

Upon our review of Det. Roland’s testimony at the suppression hearing and the videotape of

the interview, we disagree with the Court of Criminal Appeals and hold that the evidence establishes

that the Defendant was in custody prior to being given the Miranda warnings.

Applying the Anderson factors, we find that the preponderance of the evidence establishes

the following. The Defendant drove himself to the police station during the early evening on the

false pretext that he was going to be fingerprinted again to assist in the police investigation. Upon

his arrival, one of the investigating detectives instead asked if he would first talk to them. The
This is to be expected, of course, when an on-duty police officer conducts the interview. 5

10

interview took place in a small interrogation room located in a secured portion of the building. The

initial phase of the interview was not prolonged. The character of the questioning was accusatory

and demanding, aimed at convincing the Defendant that the police already had sufficient evidence

to convict him of murdering the victim and that he had to give them an explanation. Det. Roland’s

and Sgt. Postiglione’s tone of voice and general demeanor were conversational; however, at least one

of the officers was armed. Two officers questioned him. The Defendant’s movements were

5

restrained to the extent that he was placed in the back corner of a small room with one door, the door

was closed, and a police officer was sitting between the Defendant and the closed door. The

interactions between the Defendant and the officers consisted of a few prefatory comments about the

Defendant’s practice of homeschooling followed by increasingly focused accusations and questions

about the Defendant’s involvement in the victim’s death. Only a few minutes into the interrogation,

Det. Roland told the Defendant that if he went “strictly on the evidence, [he had] to charge [the

Defendant] with first degree murder.” The Defendant’s initial responses ran the gamut from

unequivocal denials to challenges to statements of “I don’t know what to say.” Eventually, after

having been repeatedly told that the officers knew the Defendant was involved in the victim’s death

and just needed the details as to why, and that the police already had sufficient evidence to convict

him of first degree murder, the Defendant confessed to killing the victim. The officers never

informed the Defendant that he was free to refrain from answering questions or that he was free to

end the interview until after they had extracted a confession from him.

This full recitation of the totality of the circumstances surrounding the Defendant’s initial

questioning convinces us that a reasonable person in the Defendant’s position would have considered

himself or herself “deprived of freedom of movement to a degree associated with a formal arrest,”

at least by the point at which Det. Roland stated, “if I go strictly on the evidence, I have to charge

you with first degree murder.” The Defendant’s eventual question about whether he would have to

spend the night–made only after Det. Roland informed him that they had to “make this official”–

does not, in our estimation, imply that the Defendant believed up until that point that he was free to

leave. It is equally likely that he may have been wondering about the opportunities for bail, or he

may have hoped that he would be allowed to turn himself in the next day after informing his family

of what had happened. In any event, speculation about the Defendant’s exact state of mind at the

time he asked the question is unnecessary and irrelevant: the inquiry focuses on what a reasonable

person in the Defendant’s position would have concluded from the circumstances in which he found

himself, not what the Defendant may actually have been thinking at the time. 

III. “Question-First” Interrogation: Missouri v. Seibert

Having determined that the Defendant was in custody for purposes of Miranda at the time

he gave his initial unwarned confession, we next consider whether the later warnings cured the

Miranda violation. In Missouri v. Seibert, 542 U.S. 600 (2004), the United States Supreme Court

considered a case in which the police arrested the defendant, took her to the police station,

questioned her about a crime for thirty to forty minutes without the benefit of Miranda warnings,

extracted a confession, and then gave her a twenty minute break. Upon resuming the questioning
11

after the break, the police provided the defendant her Miranda warnings, and she then executed a

waiver. A second confession followed. After she was charged with first degree murder, the

defendant moved to suppress both her prewarning and postwarning statements. The trial court

suppressed the prewarning statement but allowed the State to use the postwarning statement. A jury

subsequently convicted the defendant of second degree murder. 

At the Supreme Court, the case generated four separate opinions, with five justices ultimately

concurring that the postwarning statement was inadmissible and four justices dissenting on that

issue. In addressing the interrogation tactics used by the police in Seibert, the plurality opinion first

noted that “[t]he technique of interrogating in successive, unwarned and warned phases,” a technique

the plurality referred to as “question-first,” had been promoted by “a national police training

organization” with the object of “render[ing] Miranda warnings ineffective by waiting for a

particularly opportune time to give them, after the suspect has already confessed.” Id. at 609-11.

In assessing the constitutionality of the practice in light of Miranda, the plurality determined that 

[t]he threshold issue when interrogators question first and warn later is thus whether

it would be reasonable to find that in these circumstances the warnings could

function ‘effectively’ as Miranda requires. Could the warnings effectively advise the

suspect that he had a real choice about giving an admissible statement at that

juncture? Could they reasonably convey that he could choose to stop talking even

if he had talked earlier? For unless the warnings could place a suspect who has just

been interrogated in a position to make such an informed choice, there is no practical

justification for accepting the formal warnings as compliance with Miranda, or for

treating the second stage of interrogation as distinct from the first, unwarned and

inadmissible segment.

Id. at 611-12. The plurality was skeptical about the efficacy of Miranda warnings under such

circumstances, observing that “it is likely that if the interrogators employ the technique of

withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will

be ineffective in preparing the suspect for successive interrogation, close in time and similar in

content.” Id. at 613.

The plurality then set forth a five-factor test pertinent to determining whether late Miranda

warnings are effective:

the completeness and detail of the questions and answers in the first round of

interrogation, the overlapping content of the two statements, the timing and setting

of the first and the second [interrogation], the continuity of police personnel, and the

degree to which the interrogator’s questions treated the second round as continuous

with the first [round of questioning].

Id. at 615. Applying these factors to the case before it, the plurality held the post-warning statement

to be inadmissible. Id. at 617. In support of this conclusion that the eventual Miranda warnings

were ineffective, the plurality opinion observed the following:
12

The unwarned interrogation was conducted in the station house, and the questioning

was systematic, exhaustive, and managed with psychological skill. When the police

were finished there was little, if anything, of incriminating potential left unsaid. The

warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the

same place as the unwarned segment. When the same officer who had conducted the

first phase recited the Miranda warnings, he said nothing to counter the probable

misimpression that the advice that anything Seibert said could be used against her

also applied to the details of the inculpatory statement previously elicited. In

particular, the police did not advise that her prior statement could not be used.

Nothing was said or done to dispel the oddity of warning about legal rights to silence

and counsel right after the police had led her through a systematic interrogation . . . .

The impression that the further questioning was a mere continuation of the earlier

questions and responses was fostered by references back to the confession already

given. It would have been reasonable to regard the two sessions as parts of a

continuum, in which it would have been unnatural to refuse to repeat at the second

stage what had been said before. These circumstances must be seen as challenging

the comprehensibility and efficacy of the Miranda warnings to the point that a

reasonable person in the suspect’s shoes would not have understood them to convey

a message that she retained a choice about continuing to talk.

Id. at 616-17 (footnotes omitted). 

In a separate opinion, Justice Kennedy agreed that the postwarning confession by the

defendant in Seibert was not admissible. He disagreed with the plurality’s analysis, however,

explaining that the plurality’s test 

envisions an objective inquiry from the perspective of the suspect, and applies in the

case of both intentional and unintentional two-stage interrogations. In my view, this

test cuts too broadly. Miranda’s clarity is one of its strengths, and a multifactor test

that applies to every two-stage interrogation may serve to undermine that clarity.

Id. at 621-22 (Kennedy, J., concurring in judgment) (citation omitted). Justice Kennedy preferred

to apply the principles of Oregon v. Elstad which held that “a simple failure to administer the

warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the

suspect’s ability to exercise his free will,” did not necessarily taint a subsequent, warned confession.

Elstad, 470 U.S. at 309. Thus, Justice Kennedy would look to whether the police deliberately

employed the “two-step strategy” and, where they did, Justice Kennedy would exclude a postwarning

statement that was related to the substance of the prewarning statement “unless curative measures

[were] taken before the postwarning statement [was] made.” Seibert, 542 U.S. at 622 (Kennedy, J.,

concurring in judgment). Justice Kennedy offered as one example of a curative measure, “a

substantial break in time and circumstances between the prewarning statement and the Miranda

warning.” Id.
With respect to the multiple opinions generated by Seibert, we reiterate our observations in Northern: 6

“When a fragmented Court decides a case and no single rationale explaining the result enjoys

the assent of five Justices,‘the holding of the Court may be viewed as that position taken by those

Members who concurred in the judgments on the narrowest grounds.’” Marks v. United States, 430

U.S. 188, 193, 97 S. Ct. 990, 51 L. Ed.2d 260 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169

n.15, 96 S. Ct. 2909, 49 L. Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)); see also

Coe v. State, 17 S.W.3d 193, 209 (Tenn. 2000). Tallying the votes from the various Seibert opinions

provides only minimal clarity as to the analysis governing the issue in this case. Justice Kennedy’s

concurring opinion is generally viewed as more narrow than the plurality opinion. [See Edwards v.

13

IV. Applying Seibert: State v. Northern

This Court was first called upon to applySeibert in State v. Northern, 262 S.W.3d 741 (Tenn.

2008). In Northern, the police arrested the defendant on drug charges and brought him down to the

police station. Prior to issuing Miranda warnings, the police sat the defendant in the center of the

“Murder Squad Office” where the defendant was surrounded by detectives. The detectives discussed

among themselves a shooting in which they suspected the defendant. “In general, the conversation

minimized the shooter’s responsibility and implied that the victim assumed the risk of being

murdered when he drove late at night into a neighborhood notorious for crime.” Id. at 745. The

defendant listened to this conversation for about twenty minutes and then spontaneously announced

that he had been present at the shooting. At that point, one of the detectives relocated the defendant

to an interview room and turned on a videocamera. The detective administered the Miranda

warnings and went over a rights-waiver form with the defendant, which the defendant signed. The

officer then interrogated the defendant about the shooting, to which the defendant “confessed

readily.” Id. at 761.

In a challenge under Seibert, we held that the initial conversation between the police officers

in the defendant’s presence functioned as the equivalent of an interrogation for the purposes of

Miranda. Northern, 262 S.W.3d at 753. Therefore, the overall interrogation was nominally twostep. We then undertook a careful examination of the several opinions written in Seibert. Id. at 757-

60. We recognized that Justice Breyer indicated in his separate concurring opinion a preference for

a “simple rule” that would “apply to the two-stage interrogation technique” and which would require

courts to “exclude the ‘fruits’ of the initial unwarned questioning unless the failure to warn was in

good faith.” Seibert, 542 U.S. at 617 (Breyer, J., concurring). Justice Breyer nevertheless joined in

the plurality opinion “in full.” Id. at 618. Justice Kennedy expressed a preference for “a narrower

test applicable only in the infrequent case . . . in which the two-step interrogation technique was used

in a calculated way to undermine the Miranda warning.” Id. at 622 (Kennedy, J., concurring in

judgment). Eventually, we found it unnecessary in Northern “to foretell which, if any, of the Seibert

approaches will eventually garner the agreement of a majority of the [J]ustices,” Northern, 262

S.W.3d at 760, because we determined that the Miranda warnings given prior to the second

interrogation in Northern were effective under any of the analyses articulated in the various Seibert

opinions, id. In this case, we again determine that it is unnecessary to predict the eventual outcome

of the competing Seibert approaches because we find that the Defendant’s postwarning confession

is inadmissible under either the plurality’s or Justice Kennedy’s test.6
United States, 923 A.2d 840, 848 n.9 (D.C. 2007) (citing cases holding that because Justice Kennedy’s

concurring opinion in Seibert is more narrow than the plurality opinion, his opinion is of special

significance).] However, Justice Kennedy’s focus on the interrogating officer’s intent is directly

inconsistent with the reasoning of the other plurality justices and with the reasoning of the dissenting

justices. In light of the seven votes explicitly rejecting Justice Kennedy’s intent-based test,

disagreement exists concerning the analysis that Seibert instructs courts to apply when determining

the admissibility of postwarning statements. See, e.g., Edwards v. United States, 923 A.2d 840, 848

(D.C. 2007) (observing that “there is some disagreement concerning the precise analysis that Seibert

mandates”); United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006) (“Determining

the proper application of the Marks rule to Seibert is not easy, because arguably Justice Kennedy’s

proposed holding in his concurrence was rejected by a majority of the Court.”); United States v.

Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004) (reading the plurality’s balancing test into Justice

Kennedy’s requirement of “curative steps”); see also Daniel S. Nooter, Is Missouri v. Seibert

Practicable?: Supreme Court Dances the “Two-Step” Around Miranda, 42 Am. Crim. L. Rev. 1093,

1094 (Summer 2005).

262 S.W.3d at 759-60 (footnote placed in brackets). We also recognize that two of the Justices who participated in

Seibert are no longer on the Supreme Court, rendering its eventual construction by the Court even more speculative. 

The circumstances surrounding the victim’s body would have provided the necessary corroboration. See State 7

v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000).

14

V. Application of the Seibert Plurality Test in this Case

The first factor of the five-factor Seibert plurality test to determine whether the two-step

“question-first” interrogation used in the instant case passes constitutional muster is “the

completeness and detail of the questions and answers in the first round of interrogation.” 542 U.S.

at 615. In this case, Det. Roland and Sgt. Postiglione obtained a complete and detailed confession

from the Defendant before administering the Miranda warnings. The officers’ questioning was

pointed and executed with psychological skill. In response to their questions and claims of

incriminating evidence, the Defendant told them where he picked up the victim, where they went,

why they argued, how he killed her, what he did in an attempt to hide that he strangled her, and what

he did with her body. Were the Defendant’s initial confession admissible, it would have been

sufficient to support the Defendant’s conviction of second degree murder. See Tenn. Code Ann. 7

§ 39-13-210 (2003). This factor weighs heavily against the efficacy of the tardy Miranda warnings.

The second Seibert plurality factor is “the overlapping content of the two statements.”

Seibert, 542 U.S. at 615. In this case, the overlap was considerable. Only minor details were elicited

in the second statement that were not also obtained in the first. This factor, too, weighs heavily

against the effectiveness of the late Miranda warnings.

The third factor is “the timing and setting of the first and the second” interrogations. Id. In

this case, the second interrogation took placemereminutes after the first interrogation, with no break

in time. The second interrogation took place in the same place as did the first: a small interrogation

room in a secured area of the police station. The second interrogation was conducted by the same

two police officers who conducted the first interrogation, the fourth Seibert factor. Both of these

factors weigh against the effectiveness of the eventual Miranda warnings.
Of course, whether a suspect is “under arrest” does not depend on the officer’s subjective analysis. “The 8

subjective intent of the officer is relevant to the assessment [of whether a person has been arrested] only to the extent

that the officer’s intent has been conveyed to the person confronted.” State v. Crutcher, 989 S.W.2d 295, 304 (Tenn.

1999) (Drowota, J., dissenting). Det. Roland never informed the Defendant about his subjective understanding that he

had no evidence upon which to base an arrest of the Defendant. To the contrary, Det. Roland repeatedly informed the

Defendant that he did have enough evidence to support the Defendant’s arrest. See also Berkemer, 468 U.S. at 442

(holding that “[a] policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at

15

The fifth and final factor looks to “the degree to which the interrogator’s questions treated

the second round as continuous with the first.” Id. In this case, Det. Roland and Sgt. Postiglione

treated the two rounds of questioning as two portions of the same whole: the second being merely

the “official” portion. At no time did either of them inform the Defendant that his initial statement

could not be used against him. Cf. id. at 616. “Nothing was said or done to dispel the oddity of

warning about legal rights to silence and counsel right after the police had led [him] through a

systematic interrogation.” Id. Moreover, during the second round of questioning, Det. Roland

referred, albeit briefly and only twice, to the Defendant’s initial statement. Cf. id. As in Seibert,

“[i]t would have been reasonable to regard the two sessions as parts of a continuum, in which it

would have been unnatural to refuse to repeat at the second stage what had been said before.” Id.

at 616-17. Indeed, we are confident that a reasonable person in the Defendant’s shoes would have

considered his second statement to be a forgone conclusion, a nicety that simply gave him another

opportunity to demonstrate his cooperativeness in the hopes of something less than a first degree

murder charge. 

In this case, all five of the Seibert plurality factors weigh against the effectiveness of the tardy

Miranda warnings. This case is therefore distinguishable from Northern in which we determined that

only one of the five factors (the continuity of police personnel) posed a threat to the effectiveness

of the late warnings. See Northern, 262 S.W.2d at 761-63. We emphasize that, unlike the defendant

in Northern, the Defendant in this case was not warned of his right to remain silent until after he had

already confessed in response to specific, targeted questions. Uninformed about the inadmissibility

of his first statement, the Defendant had no way to know that a postwarning refusal to incriminate

himself would be in any way effective. We find, therefore, that a reasonable person in the

Defendant’s shoes would not have understood the eventual Miranda warnings given in this case to

have “convey[ed] a message that [he] retained a choice about continuing to talk.” Seibert, 542 U.S.

at 617. Accordingly, the tardy Miranda warnings in this case were not effective to apprise the

Defendant that he had a real, consequential opportunity to choose to remain silent at that point.

VI. Application of Justice Kennedy’s “Narrower Test”

Applying Justice Kennedy’s test in this case, we first consider whether the police officers

deliberately employed the two-step interrogation technique so as to undermine the eventual Miranda

warnings. Det. Roland was asked during cross-examination at the suppression hearing whether it

was “a conscious decision on [his] part, before [he] interviewed [the Defendant], not to give him

Miranda warnings?” Det. Roland responded, “It was a very conscious decision, that he was not

under arrest, that I had no evidence to arrest him on, and that it was absolutely no reason to read him

his Miranda rights.” Thus, Det. Roland readily admitted that he consciously decided not to provide 8
a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his

situation”). We also recognize, as has the Supreme Court, that “the task of defining ‘custody’ is a slippery one, and

‘policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.’” Elstad, 470

U.S. at 309 (quoting Michigan v. Tucker, 417 U.S. 433, 446 (1974)). 

In this case, we have Det. Roland’s very candid testimony about his mind-set at the time he began his 9

interrogation of the Defendant. As recognized by the Seibert plurality, however, “the intent of the officer will rarely be

. . . candidly admitted.” Seibert, 542 U.S. at 616 n.6. Justice Kennedy’s test becomes even more problematic in cases

involving less candid testimony.

16

the Defendant with Miranda warnings, but protested that the circumstances did not require them.

This response highlights the difficulties with applying Justice Kennedy’s test. A test that focuses

9

on the subjective mind-set and motivations of the interrogating police officer(s) creates the

possibility that a police officer couldmanipulate the scene ofthe interrogation and then subsequently

claim that his failure to issue Miranda warnings was in “good faith.” This circular reasoning is not

helpful to the crucial question of whether tardy Miranda warnings function effectively.

We find that Det. Roland and Sgt. Postiglione deliberately set the stage for the Defendant’s

two-step interrogation so as to undermine his eventual Miranda warnings. In support of this

conclusion, we emphasize the false pretenses under which the Defendant was called to the police

station, the officers’ failure to advise the Defendant during the first stage of the interrogation that he

was not under arrest and that he was free to leave at any time, and their subsequent failure at the

commencement of the second stage of the interrogation to inform the Defendant that his initial

statement would not be admissible against him. 

The second prong of Justice Kennedy’s test is whether sufficient curative measures were

taken prior to the Defendant’s second confession “to ensure that a reasonable person in the suspect’s

situation would understand the import and effect of the Miranda warning and of the Miranda

waiver.” Seibert, 542 U.S. at 622 (Kennedy, J., concurring in judgment). We hold that no such

sufficient curative measures were taken in this case. Again, the officers failed to inform the

Defendant that his first confession would not be admissible against him. There was no break in time,

place, or personnel, and the only indication that anything about the Defendant’s circumstances had

changed was Det. Roland’s declaration following the Defendant’s initial statement that they had to

“make it official.” No reasonable person in the Defendant’s position at that time and under those

circumstances would have understood the import and effect of the post-confession Miranda warnings

and waiver.

Our conclusion that the Defendant’s postwarning confession was not admissible under either

of the Seibert approaches leaves us with no choice but to find that the Defendant’s motion to

suppress both of his statements should have been granted because his initial statement was taken in

violation of his Fifth Amendment right against self-incrimination, and the tardy Miranda warnings

did not function effectively so as to render his second statement admissible. 
17

VII. Tennessee Constitution

The Tennessee Constitution also protects persons against compelled self-incrimination: “in

all criminal prosecutions, the accused . . . shall not be compelled to give evidence against himself.”

Tenn. Const. art. I, § 9. This Court has concluded that “the test of voluntariness for confessions

under Article I, [section] 9 is broader and more protective of individual rights than the test of

voluntariness under the Fifth Amendment.” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992)

(citing State v. Smith, 834 S.W.2d 915 (Tenn. 1992)). Indeed, we have held that the 

extraction of an illegal, unwarned confession from a defendant raises a rebuttable

presumption that a subsequent confession, even if preceded by proper Miranda

warnings, is tainted by the initial illegality. That presumption may be overcome by

the prosecution, however, if the State can establish “that the taint is so attenuated as

to justify admission of the subsequent confession.”

Smith, 834 S.W.2d at 919 (quoting Elstad, 470 U.S. at 335 (Brennan, J., dissenting)).

In Smith, this Court determined that 

the crucial inquiry for the courts becomes whether the events and circumstances

surrounding and following the initial, illegal conduct of the law enforcement officers

prevented the accused from subsequently (1) making a free and informed choice to

waive the State constitutional right not to provide evidence against one’s self, and (2)

voluntarily confessing his involvement in the crime.

Id. We then set forth a list of nine factors that courts should consider when examining the totality

of the circumstances surrounding the two confessions in order to determine whether the second

confession “can truly be termed a knowing and voluntary statement.” Id. at 920. Those nine factors

are:

1. The use of coercive tactics to obtain the initial, illegal confession and the causal

connection between the illegal conduct and the challenged, subsequent confession;

2. The temporal proximity of the prior and subsequent confessions;

3. The reading and explanation of Miranda rights to the defendant before the

subsequent confession;

4. The circumstances occurring after the arrest and continuing up until the making

of the subsequent confession including, but not limited to, the length of the detention

and the deprivation of food, rest, and bathroom facilities;

5. The coerciveness of the atmosphere in which any questioning took place

including, but not limited to, the place where the questioning occurred, the identity
18

of the interrogators, the form of the questions, and the repeated or prolonged nature

of the questioning;

6. The presence of intervening factors including, but not limited to, consultations

with counsel or family members, or the opportunity to consult with counsel, if

desired;

7. The psychological effect of having already confessed, and whether the defendant

was advised that the prior confession may not be admissible at trial;

8. Whether the defendant initiated the conversation that led to the subsequent

confession; and 

9. The defendant’s sobriety, education, intelligence level, and experience with the

law, as such factors relate to the defendant’s ability to understand the administered

Miranda rights.

Id. at 919-20. The application of these factors in this case makes clear that the Defendant’s

postwarning confession was taken in violation of his Tennessee constitutional right against selfincrimination and cannot be used against him.

With respect to the first factor, we find that Det. Roland and Sgt. Postiglione used tactics

designed to convince the Defendant that his refusal to confess would be to no avail because, they

claimed, there was already enough evidence to convict him of first degree murder. The clear thrust

of their prewarning interrogation was that the only way the Defendant could avoid a conviction of

first degree murder was to confess. In the context of our analysis of this initial Smith factor, we find

a strong causal connection between the officers’ illegal prewarning interrogation and the Defendant’s

subsequent warned confession. Again, the officers employed tactics designed to convince the

Defendant that his only hope of avoiding a first degree murder conviction was to confess. Since he

was never told that his first confession was not admissible or that there was, in fact, no other

evidence connecting him to the crime, the Defendant had no reason to believe that exercising his

right against self-incrimination (once he was finally informed of that right) would be in any way

meaningful.

The temporal proximity between the two confessions was very close. As soon as the

Defendant told the officers what they wanted to know during his unwarned statement, the officers

Mirandized him and then continued, without interruption, to solicit the second confession. 

After the Defendant confessed to the officers’ satisfaction, Det. Roland read the Defendant

his rights, went over the waiver with him, and had the Defendant sign the waiver of rights form. The

Defendant was not subjected to a prolonged detention between his first statement and his second

statement, nor does it appear that he was deprived of food, rest, or bathroom facilities. The

questioning took place at the police station, in a closed interview room, with two officers. Although

the questioning was not prolonged, it was extremely focused, accusatory, and demanding. We have
19

already determined that the questioning was custodial. We recognized in Smith that “police custody

is inherently coercive and compelling.” Id. at 920. 

There were no intervening factors such as consultations with counsel or family members

between the first round of questioning and the second. The Defendant was never advised that his

first confession would not be admissible at trial. The Defendant did not initiate the conversation that

led to the second confession.

The Defendant appeared sober during the videotaped interview, although no questions as to

his sobriety were asked. He denied ever having been read his Miranda rights before. The

Defendant’s education is unknown. The Defendant’s intelligence appears within the normal range.

The Defendant did not admit to any previous experience with the law. 

Reviewing the totality of the circumstances surrounding the Defendant’s two confessions,

we hold that the State has failed to establish under Smith that the taint of the first illegal confession

was so attenuated as to justify admission of the second confession. Indeed, the only attempt by the

officers in this case to attenuate the second confession from the first confession was to inform the

Defendant after his first confession that they had to “make it official,” which included a recitation

of his rights. Significantly, the Defendant was never informed that his “unofficial” confession would

not be admissible against him. The psychological effect of having already confessed was therefore

magnified. Combined with the officers’ repeated claims that they already had the evidence to

convict him of first degree murder, and that a confession was the means by which the Defendant

might be entitled to a lesser charge, the Defendant had little hope of understanding, much less

exercising, his right against self-incrimination by the time he was finally advised of it. 

Accordingly, we hold that both of the Defendant’s statements were taken in violation of his

right against self-incrimination under the Tennessee Constitution. The trial court erred in failing to

suppress both statements and the Court of Criminal Appeals erred in affirming the trial court.

CONCLUSION

The victim in this case was the subject of a senseless murder. The delay in discovering the

crime eliminated evidence and made solving the victim’s murder extremely difficult. We laud the

efforts of our law enforcement officers in seeking relevant information with which to solve the case

and apprehend the perpetrator. As recognized by the United States Supreme Court, “[n]o mission

of law enforcement officials is more important.” Brewer v. Williams, 430 U.S. 387, 406 (1977).

Unfortunately, however, “‘[d]isinterested zeal for the public good does not assure either wisdom or

right in the methods it pursues.’” Id. (quoting Haley v. Ohio, 332 U.S. 596, 605 (1948) (Frankfurter,

J. concurring in judgment)).

We do not question the usefulness and efficacy of a law enforcement officer’s “gut feelings

and instincts” which were, in this case, very accurate. However, the interrogation techniques used

by Det. Roland and Sgt. Postiglione in this matter cannot be employed during custodial interrogation

unless prefaced by the warnings required by Miranda. We recognize that “[t]he pressures on state
20

executive and judicial officers charged with the administration of the criminal law are great,

especially when the crime is murder . . . .” Brewer, 430 U.S. at 406. We must also recognize,

however, that “it is precisely the predictability of those pressures that makes imperative a resolute

loyalty to the guarantees that the Constitution extends to us all.” Id.

Unsolved crimes injure every member of our society. But so do unconstitutional actions by

agents of our governments. The police officers’ tactics in this case, though utilized with the best of

intentions, violated the Defendant’s federal and state constitutional rights against compelled selfincrimination. Those tactics force us to vacate the Defendant’s conviction. Because the State has

stipulated that the admissibility of the Defendant’s confession is dispositive of the case and that,

absent the Defendant’s confession, it has no other evidence sufficient to support his conviction, we

also must dismiss the charge against him. Needless to say, this result is deeply disturbing.

Nevertheless, as observed by Mr. Justice Brandeis of the United States Supreme Court, 

Decency, security, and liberty alike demand that government officials shall

be subjected to the same rules of conduct that are commands to the citizen. In a

government of laws, existence of the government will be imperilled if it fails to

observe the law scrupulously. Our government is the potent, the omnipresent

teacher. For good or for ill, it teaches the whole people by its example. Crime is

contagious. If the government becomes a law-breaker, it breeds contempt for law;

it invites every man to become a law unto himself; it invites anarchy. To declare that

in the administration of the criminal law the end justifies the means . . . would bring

terrible retribution. Against that pernicious doctrine this court should resolutely set

its face.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). 

The judgment of the Court of Criminal Appeals is reversed, the Defendant’s conviction is

vacated, and the charge against the Defendant is dismissed. Costs of this cause are taxed to the State

of Tennessee, for which execution may issue if necessary.

___________________________

CORNELIA A. CLARK, JUSTICE