Exceptions to Miranda rule: Are they constitutional?

The Supreme Court hears three cases this week that could clarify the scope of defendant rights.

Anyone who watches police dramas on television (or makes a habit of breaking the law) is likely to have heard law-enforcement officials recite the so-called Miranda warnings.

"You have the right to remain silent. If you give up this right, anything you say can and will be used against you in a court of law; you have a right to counsel ..."

Although such warnings have become widely known, they have remained a source of controversy within the law-enforcement community ever since the US Supreme Court endorsed the practice in the 1966 landmark case Miranda v. Arizona. This week, the US Supreme Court takes up three cases all dealing with police attempts to bypass the Miranda warnings at crucial stages of an investigation.

The cases are important because the high court may use this opportunity to carve out significant exceptions to what defense lawyers say should be a bright-line rule that incriminating statements obtained from a suspect in police custody prior to the issuing of Miranda warnings may not be used as evidence in court.

At issue in each of the cases is the so-called exclusionary rule, which requires that evidence obtained by police in ways that violate constitutional principles must be excluded from use at a trial.

In a major decision in 2000 called Dickerson v. US, the justices declined to overrule the Miranda decision. Instead, they declared that the Miranda warnings were more than just judicial guidance; they amount to a constitutional rule.

Now, three years later, the court is in a position to define the scope of the constitutional holding in Miranda. Will a majority of justices view it in the same sweeping terms discussed by Chief Justice Earl Warren in 1966? Or will they cut it back in a way that will allow law-enforcement officials greater flexibility?

"This is a back-door way around Dickerson," says James Tomkovicz, a visiting professor at UCLA Law School, who filed a friend-of-the-court brief on behalf of the National Association of Criminal Defense Lawyers and other groups. "It would be a gaping hole in the protection that Miranda provides" if the court upholds the police practices at issue, he says.

Kent Scheidegger of the Criminal Justice Legal Foundation sees the issue differently. "The bright-line rule of Miranda is not as bright as advertised," he says in a friend-of-the-court brief. "The cost of suppression [of evidence] in a case such as this vastly outweighs the benefits."

The first case the court is set to hear Tuesday involves Samuel Patane of Colorado Springs. In June 2001, police arrested Mr. Patane for allegedly violating a restraining order. An officer began reciting the Miranda warnings, but Patane interrupted, "I know my rights."

"You know your rights?" the officer asked. "Yes," Patane responded.

The officer did not complete the warnings. Then a detective asked Patane, a convicted felon, about a gun he reportedly had. Convicted felons may not legally possess firearms, but Patane acknowledged owning a gun. He told the officer where it was in his house and gave him permission to enter the house.

Patane was charged with illegal possession of a gun. But the case was thrown out because the officers had failed to give Patane his full Miranda warnings prior to obtaining the information about the gun.

What is unique about the Patane case is that it confronts the question of whether a Miranda violation requires the suppression not just of statements but also of physical evidence - like a gun.

"A violation of the constitutional rule of Miranda is a violation of the Constitution," says Jill Wichlens, an assistant federal public defender in Denver, in her brief on behalf of Patane.

Federal prosecutors disagree. "Miranda does not require the suppression of physical evidence derived from a voluntary statement taken without Miranda warnings," says Solicitor General Theodore Olson, in his brief to the court.

The second case set for argument Tuesday involves an intentional effort by police to elicit incriminating statements prior to giving Miranda warnings. Once some incriminating information is obtained, police then give the Miranda warnings and use the earlier unwarned statements to coax a more complete confession out of the suspect. The idea is that the second statement may then be used as evidence in court without raising constitutional questions.

This is what happened in the case of Patrice Seibert of Rolla, Mo. Police investigating an arson-homicide in Ms. Seibert's trailer home took her into custody at 3 a.m. A detective questioned her until she admitted involvement in the killing. Then the detective took a coffee break. When he returned he flipped on a tape recorder, issued Miranda warnings, and pressed Seibert to repeat her incriminating statement.

Based on her second statement, Seibert was convicted and sentenced to life in prison. The Missouri Supreme Court overturned her conviction, ruling that the detective had violated the Miranda rule.

The third Miranda case, set for oral argument Wednesday, involves a police effort to obtain incriminating statements from a defendant in a drug case who had already been indicted. At issue is whether the police conduct violated the defendant's Sixth Amendment right to counsel because he was not advised of his right to speak to a lawyer prior to making the statements.

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