                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3101
                                   ___________

United States of America,             *
                                      *
           Plaintiff-Appellant,       *
                                      * Appeal from the United States
      v.                              * District Court for the District
                                      * of Minnesota.
Angel Benito Villalba-Alvarado, a/k/a *
Benito Angel Alvara Villalba,         *
                                      *
           Defendant-Appellee.        *
                                 ___________

                            Submitted: February 12, 2003
                                Filed: October 10, 2003
                                    ___________

Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
                         ___________

MELLOY, Circuit Judge.

      Plaintiff-Appellant the United States of America appeals the suppression of
physical evidence derived from a violation of Miranda v. Arizona, 384 U.S. 436
(1966), as well as the suppression of Defendant-Appellee Angel Benito Villalba-
Alvarado's later, post-warning/post-waiver statements also derived from the earlier
Miranda violation. We reverse. The post-waiver statements were voluntary and are
admissible notwithstanding the earlier Miranda violation. United States v. Fellers,
285 F.3d 721, 724 (8th Cir. 2002), cert. granted, 123 S.Ct. 1480 (March 10, 2003)
(citing Oregon v. Elstad, 470 U.S. 298, 309 (1985)). Further, we join the Third and
Fourth Circuits to hold that a Miranda violation does not demand the suppression of
derivative physical evidence if the non-Mirandized statement was voluntary.

                                         I.

       After conducting controlled drug buys with pre-recorded currency, officers
obtained a search warrant covering Defendant's car, home, and person. Defendant
does not challenge the validity of the warrant. To execute the warrant, a team of
officers approached Defendant's home. Other officers recognized Defendant in his
car on a nearby street, stopped him, handcuffed him, and brought him to the home.
Without the provision of a Miranda warning, Defendant voluntarily confessed to
officers in the home the locations of (1) a hidden panel in a built-in dresser that
concealed approximately one-half pound of cocaine and a scale, and (2) a coat
hanging in a closet with $3,360 in its pocket, $700 of which comprised pre-recorded
currency from the controlled buys.1

      The team searched Defendant's home for an additional forty-five minutes after
finding the drugs, scale, and currency in the locations identified by Defendant, but
found no other evidence. The lead officer described the usual procedure for
executing search warrants of similar scope. Under this described procedure, teams
would start their examination in the center of each room and work outwardly,


      1
        Although the situation at Defendant's home was clearly "custodial," it is not
clear that an "interrogation" occurred. Miranda, 384 U.S. at 444 (holding the well-
known warnings to defendants to be necessary in situations involving "custodial
interrogations" by police). Nevertheless, because the United States Attorney
conceded before the district court that a Miranda violation had occurred, we must
assume that the circumstances in Defendant's home did comprise a custodial
interrogation.

                                        -2-
examining everything from floor to ceiling. Next, officers would expand their search
with follow-up passes through each room by different officers. Finally, if these steps
failed to reveal evidence, dogs would be used. In an apparent attempt to demonstrate
that Defendant's hidden panel was typical of hiding places encountered in prior drug
searches, and therefore, that the hidden panel inevitably would have been discovered,
the lead officer claimed that he previously had found evidence in very unusual places.
When the United States Attorney asked the officer to list examples of such places,
however, the presiding magistrate judge granted Defendant's relevancy objection and
prevented the officer from answering. Finally, there was no evidence to suggest that
the hidden panel was detectable upon observation, that officers suspected the
existence of the hidden panel, or that the built-in dresser otherwise displayed
characteristics that would have aroused officer suspicion.

       The team’s lead officer claimed that a drug dog happened to be available in the
general vicinity of the home. The dog, however, was not part of the search team, and
the team did not employ the dog in light of the assistance provided by Defendant.
Further, the lead officer could not identify the names of the drug dog or its controlling
officer. There also was testimony that the use of drug dogs is a normal component
of searches where drugs are suspected but not discovered. Although the lead officer
described in general the role of dogs in the execution of drug-related search warrants,
he did not state specifically that he would have used the dog in this particular case if
his team's search had failed to produce results.

      After the search, officers took Defendant to the police station where he was
given a Miranda warning in Spanish. Through a translator, he waived his rights and
proceeded to re-describe the location where the drugs were found. He also identified
his California-based drug supplier. Police recorded these post-waiver statements.

      Defendant moved for suppression of the drugs, scale, and currency as well as
suppression of the statements made in his home and the later, post-warning/post-

                                          -3-
waiver statements made at the police station. The United States argued that the
physical evidence need not be suppressed as the fruit of a Fifth Amendment
Miranda violation, that the physical evidence inevitably would have been discovered,
and that the subsequent Miranda warning and Defendant's waiver of rights at the
police station made any post-waiver statements admissible because the warning and
waiver served to cleanse any taint that might have lingered from the original Miranda
violation.

       After a suppression hearing, the magistrate judge recommended: (1)
suppression of the drugs and scale based on the conceded Miranda violation and the
fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U.S. 471, 485
(1963); (2) admission of the currency under the doctrine of inevitable discovery; and
(3) suppression of Defendant's post-waiver statement at the police station as further
fruit of the original poisonous tree. The district court adopted most of the magistrate
judge's report, but admitted a portion of the post-warning statement that was not
related to the location of the drugs and scale (i.e., suppressed the drugs and scale but
admitted the currency and all but the first ten minutes of the post-warning statement
that Defendant made in the police station). The United States appeals.

                                          II.

       We address the admissibility of Defendant's post-waiver statement first. The
Supreme Court addressed this issue in Elstad, 470 U.S. 298, namely, "whether the
Self-Incrimination Clause of the Fifth Amendment requires the suppression of a
confession, made after proper Miranda warnings and a valid waiver of rights, solely
because the police had obtained an earlier voluntary but unwarned admission from
the defendant." Id. at 303. The Court noted that arguments in favor of extending the
fruit of the poisonous tree doctrine into the Miranda setting to suppress a later,
voluntary, post-waiver/post-warning statement necessarily rested on the belief that
the initial violation placed an irreparable degree of psychological compulsion upon

                                          -4-
a Defendant, who, by having "let the cat out of the bag," could not thereafter make
a truly voluntary statement concerning the same subject matter. Id. at 302. The
Court, while noting this argument, rejected any extension of the fruits doctrine under
this "cat out of the bag" theory and held that the pre-Miranda standard of
voluntariness governed the admissibility of subsequent, warned statements:

      It is an unwarranted extension of Miranda to hold 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, so taints the investigatory process that a
      subsequent voluntary and informed waiver is ineffective for some
      indeterminate period. Though Miranda requires that the unwarned
      admission must be suppressed, the admissibility of any subsequent
      statement should turn in these circumstances solely on whether it is
      knowingly and voluntarily made.

Elstad, 470 U.S. at 309.2




      2
       This conclusion is consistent with the Court's pre-Miranda Fifth Amendment
jurisprudence as set forth inUnited States v. Bayer, 331 U.S. 532 (1947):

      [A]fter an accused has once let the cat out of the bag by confessing, no
      matter what the inducement, he is never thereafter free of the
      psychological and practical disadvantages of having confessed. He can
      never get the cat back in the bag. The secret is out for good. In such a
      sense, a later confession may always be looked upon as fruit of the first.
      But this court has never gone so far as to hold that making a confession
      under circumstances which preclude its use, perpetually disables a
      confessor from making a usable one after those conditions have been
      removed.

Id. at 540-41 (emphasis added).

                                         -5-
       En route to reaching the conclusion that a subsequent, warned statement was
to be judged under the pre-Miranda standard of voluntariness rather than suppressed
as fruit of the poisonous tree, the Court restated its general position that the
exclusionary rule and the fruits doctrine apply differently to Miranda violations under
the Fifth Amendment than to unreasonable searches under the Fourth Amendment.
Elstad, 470 U.S. at 304-307 (quoting Brown v. Illinois, 422 U.S. 590, 601 (1975) for
the proposition that "[t]he exclusionary rule, . . . when utilized to effectuate the
Fourth Amendment, serves interests and policies that are distinct from those it serves
under the Fifth," and noting that metaphors such as fruit of the poisonous tree and cat
out of the bag "should not be used to obscure fundamental differences between the
role of the Fourth Amendment exclusionary rule and the function of Miranda in
guarding against the prosecutorial use of compelled statements as prohibited by the
Fifth Amendment.").

       The Court continued this explanation by noting the fact that it had already
established exceptions to the application of the exclusionary rule in the context of
Fifth Amendment violations. In particular, the Court noted various permissible uses
even of an initial, voluntary, unwarned statement obtained in violation of Miranda.
Elstad 470 U.S. at 307 (noting the admissibility of initial, voluntary, unwarned
statements for the purpose of impeachment and cross-examination). The Court also
noted that in Michigan v. Tucker, 417 U.S. 433, 445 (1974), it refused to extend the
fruits doctrine to exclude testimony from a prosecution witness identified through a
defendant's voluntary, albeit unwarned, statement obtained in violation of Miranda.

       Had this been the extent of the Court's decision in Elstad, the present issue
would be clear. The Court, however, also employed language from earlier Fifth
Amendment cases that characterized the protections of Miranda as merely
prophylactic in nature. Elstad, 470 at 305 (quoting New York v. Quarles, 467 U.S.
649, 654 (1984) which in turn quoted Tucker, 417 U.S. at 444, for the proposition
that, "[t]he prophylactic Miranda warnings therefore are 'not themselves rights

                                         -6-
protected by the Constitution but [are] instead measures to insure that the right
against compulsory self-incrimination [is] protected.'"). Following Elstad, then, it
was not clear if the refusal to extend the fruits doctrine in the context of subsequent,
warned statements rested on the Court's distinction between application of the
exclusionary rule in the context of Fourth Amendment and Fifth Amendment
violations or on the Court's characterization of the Miranda protections as merely
prophylactic and not constitutional in nature.

       Defendant seizes upon this lack of clarity to argue that we should not apply the
ruling of Elstad. In particular, he argues that a more recent Supreme Court decision,
Dickerson v. United States, 530 U.S. 428, 444 (2000), calls into question the
continuing validity of Elstad. In Dickerson, the Court announced that the
Miranda protections were not merely prophylactic in nature, but rather, were
themselves constitutionally required. Dickerson, 530 U.S. at 444 (holding that
Congress could not overrule Miranda and force a return to the pre-Miranda
voluntariness standard for judging the admissibility of confessions because the
protections of Miranda were themselves constitutional in stature). The Court in
Dickerson conceded that it had, in the earlier progeny of Miranda, characterized the
Miranda protections as merely prophylactic. Dickerson, 530 U.S. at 438. The Court
dismissed the impact of these earlier characterizations, however, and expressly stated
that it was not overruling its own precedent or removing any of the established
exceptions to Miranda:

      While we have overruled our precedents when subsequent cases have
      undermined their doctrinal underpinnings, . . . we do not believe that this
      has happened to the Miranda decision. If anything, our subsequent
      cases have reduced the impact of the Miranda rule on legitimate law
      enforcement while reaffirming the decision's core ruling that unwarned
      statements may not be used as evidence in the prosecution's case in
      chief.

Dickerson, 530 U.S. at 443-44 (internal citation omitted).

                                          -7-
      Defendant nevertheless relies on the language from Elstad and other pre-
Dickerson cases that suggested Miranda was merely prophylactic in order to argue
that Dickerson removed the doctrinal underpinnings from these cases and therefore
overturned the pre-existing exceptions to Miranda.

      We agree with Defendant that Elstad appeared to rely on the fact that the Court
had previously referred to Miranda protections as merely prophylactic. We disagree,
however, with Defendant's assertion that Dickerson wholly undermined Elstad or
overruled Elstad by implication. In fact, the Court in Dickerson specifically
addressed the apparent inconsistency of its characterization of the
Miranda protections in Elstad and Dickerson:

      [Supreme Court cases that established exceptions to Miranda's warning
      requirements] illustrate the principle – not that Miranda is not a
      constitutional rule – but that no constitutional rule is immutable. No
      court laying down a general rule can possibly foresee the various
      circumstances in which counsel will seek to apply it, and the sort of
      modifications represented by these cases are as much a normal part of
      constitutional law as the original decision. . . .

      Our decision in that case [Elstad] – refusing to apply the traditional
      "fruits" doctrine developed in Fourth Amendment cases – does not
      prove that Miranda is a nonconstitutional decision, but simply
      recognizes the fact that unreasonable searches under the Fourth
      Amendment are different from unwarned interrogation under the Fifth
      Amendment.

Dickerson, 530 U.S. at 441 (emphasis added). Based on this language, we conclude
that the Court intended to reaffirm the validity of Elstad by reaffirming the distinction
between application of the exclusionary rule following Fourth and Fifth Amendment
violations. By focusing on this distinction and refusing to read the opinion in
Elstad in the manner now urged by Defendant, i.e., as having relied solely on
characterization of the Miranda warnings as merely prophylactic, the Court attempted


                                          -8-
to clarify the rationale applied in Elstad and, we believe, clearly suggested that Elstad
was to survive Dickerson unaffected by the apparent removal of doctrinal
underpinnings. As such, we are compelled to remain faithful to the established
exceptions under Miranda. Other circuits have adopted a similar view of Dickerson's
impact on Elstad. See United States v. Sterling, 283 F.3d 216, 219 (4th Cir. 2002)
("In addition, we are of the opinion that the Court's reference to and reaffirmation of
Miranda's progeny indicates that the established exceptions, like those in Tucker and
Elstad survive. Thus the distinction between statements and derivative evidence
survives Dickerson.") (emphasis added); United States v. De Summa, 272 F.3d 176,
179-80 (3rd Cir. 2001) (recognizing the ongoing validity of Elstad following
Dickerson and interpreting Elstad as having broad application not only to derivative
statements, but to other forms of derivative evidence, including derivative physical
evidence); United States v. Patane, 304 F.3d 1013, 1024-25 (10th Cir. 2002)
(recognizing the ongoing validity of Elstad, but refusing to extend that ruling into the
setting of derivative physical evidence, stating, "[W]e respectfully disagree with [the]
conclusion that Dickerson's reference to the controlling force of 'Miranda and its
progeny in this Court' forecloses the argument that the physical fruits of a
Miranda violation may be suppressed. Although we agree that, based on this
language, the holdings of Elstad and Tucker survive Dickerson, neither Elstad nor
Tucker involved the physical fruits of a Miranda violation . . . . By wholly
undermining the doctrinal foundation upon which those holdings were built,
Dickerson effectively left Elstad and Tucker standing but prevented lower courts from
extending their holdings.") (emphasis added).

       Finally, and perhaps most importantly, our court already recognized the
ongoing validity of Elstad sub-silentio in a post-Dickerson case. See Fellers, 285
F.3d at 724 (holding, after Dickerson, that a post-warning/post-waiver statement was
voluntary and therefore admissible even though the statement followed an earlier
Miranda violation). In light of the Court's recognition of an ongoing distinction in
the application of the exclusionary rule under the Fourth and Fifth Amendments, and
in light of our decision in Fellers, we must reject Defendant's attack upon Elstad.

                                          -9-
Accordingly, the post-waiver statement in this case need not be suppressed merely
because it was the fruit of an earlier Miranda violation.

        We instead analyze admissibility of the statement under the standard of
voluntariness. "The voluntariness of a confession is a legal inquiry subject to plenary
appellate review." Fellers, 285 F.3d at 724 (citing United States v. Robinson, 20 F.3d
320, 322 (8th Cir. 1994)). Because Defendant argues neither that his unwarned
statement was actually compelled nor that some governmental action (beyond the
initial failure to warn) made his post-waiver statement involuntary, we find the
entirety of his post-waiver statement admissible.

                                          III.

       The Supreme Court has yet to specifically address the admissibility of the
physical fruits of a Miranda violation. Patterson v. United States, 485 U.S. 922
(1988) (". . . this Court expressly left open the question of the admissibility of
physical evidence obtained as a result of an interrogation conducted contrary to the
rules set forth in Miranda v. Arizona.") (White, J., dissenting from the denial of
certiorari), accord United States v. Patane, 304 F.3d 1013, 1022 (10th Cir. 2002), cert.
granted, 123 S.Ct. 1788 (April 21, 2003). Prior to Dickerson, many courts interpreted
the rulings of Elstad and Tucker as being widely applicable to various forms of
derivative evidence, including physical derivative evidence. See, e.g., United States
v. Cherry, 759 F.2d 1196, 1210 (5th Cir. 1985); United States v. Saginto-Miranda,
859 F.2d 1501, 1517 (6th Cir. 1988); United States v. Elie, 111 F.3d 1135, 1141 (4th
Cir. 1997); United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir. 1990).
Following Dickerson, however, a circuit split developed on the issue of whether
Elstad and Tucker must be limited to their facts – derivative warned statements and
third party testimony, respectively – or whether these Miranda progeny announced
a general rule that remained applicable to various forms of derivative evidence even
following Dickerson. We addressed similar issues, but only in a pre-
Dickerson setting. Having now been given the opportunity to directly address this

                                         -10-
issue in the wake of Dickerson, we join the Third and Fourth Circuits to hold that the
exclusionary rule as applied under the Fifth Amendment does not require the
suppression of physical evidence derived from a voluntary, non-Mirandized
statement.

       Defendant argues against the admission of the physical evidence (as he argued
above against the admission of his subsequent statement) by asserting that
Dickerson removed the doctrinal underpinnings from the established
Miranda exceptions. In this context, Defendant's argument is, arguably, stronger than
in the context of his subsequent warned statement. In this instance, he argues against
the application of Elstad and Tucker as applied generally to different forms of
derivative evidence, not merely as applied in the narrow context of subsequent,
warned statements or derivative testimony. As explained in Section II, supra, we
reject the argument that Dickerson eviscerated the theoretical underpinnings of
Elstad and Tucker to the extent urged by Defendant. Accordingly, we approach the
issue of the admissibility of the physical fruits of a Miranda violation from the
starting point that two other – arguably less reliable – forms of derivative evidence
may be admissible following a Miranda violation, namely, a defendant's subsequent
warned statement, Elstad, 470 U.S. at 309, and testimony from a witness identified
through a defendant's earlier, unwarned statement, Tucker, 417 U.S. at 445. We must
determine, then, whether derivative physical evidence differs from these other forms
of derivative evidence in a manner that would affect its admissibility under the rule
of Elstad and Tucker, and whether the Supreme Court has suggested that such a
distinction would be a valid basis for treating physical derivative evidence differently
than subsequent statements or testimony.

      We start by addressing our pre-Dickerson applications of Elstad in cases
involving physical derivative evidence to determine if, in the context of derivative
evidence, we have established or recognized any distinctions that merit consideration.
In United States v. Carter, 884 F.2d 368, 374-75 (8th Cir. 1989), we upheld the
suppression of physical evidence obtained during a search that followed an un-

                                         -11-
warned statement made during a custodial interrogation. We held the evidence
inadmissible based on the government's failure to prove that the defendant's later-
granted consent for the search was voluntary. Id. Accordingly, we did not address
the scope of Elstad by determining whether the physical fruits or a consent to search
flowing from a Miranda violation would be admissible where the earlier, unwarned
statement was voluntary.

       In United States v. Wiley, 997 F.2d 378, 383 (8th Cir. 1993), overruled on
other grounds by United States v. Bieri, 21 F.3d 819, 823 (1994), we relied on
Elstad to hold that, following a Miranda violation involving a voluntary statement,
a subsequent grant of consent for a search and the physical evidence that flowed from
that search were admissible because the subsequent consent was not tainted by the
earlier Miranda violation. We stated:

      We assume that if the [Eighth Circuit in Carter] had found the consent
      to be voluntary, the alleged "taint" would not have prevented the Court
      from admitting the evidence. By analogy to Elstad and Carter, the
      evidence seized here was admissible if both the unwarned statement and
      the consent to search were voluntary.

Wiley, 997 F.2d at 383. Accordingly, we did not address the admissibility of physical
fruits that flowed directly from a Miranda violation,3 but we did address the
admissibility of the physical fruits that flowed indirectly from a Miranda violation.
While not controlling, we find Wiley instructive because it establishes that this court,
prior to Dickerson, did not read Elstad as having pronounced a narrow rule applicable
only to subsequent warned statements. Rather, we read Elstad as having pronounced

      3
       Even though the subsequent statement in the present case, in fact, provided the
location of the drugs, scale, and money, we have chosen to characterize the physical
evidence not as the fruit of Defendant's later, voluntary, post-warning statement
provided at the police station, but rather as the direct fruit of the earlier
Miranda violation. Accordingly, we do not rely on Wiley as precedent that is directly
on point.

                                         -12-
a rule of more general applicability that embraced various forms of derivative
evidence.

       We next examine the purpose of the Miranda requirements to determine
whether Miranda and the Fifth Amendment suggest a need to draw a distinction
between derivative physical evidence and other forms of derivative evidence. The
purpose of the Miranda protections are two-fold. First, suppression is a deterrent to
the use by overzealous police of interrogation techniques that may overbear the will
of defendants and lead to involuntary and unknowing waivers of the right against self
incrimination. It is plain upon reading Miranda that the deterrence rationale served
as the primary theoretical underpinning for the Court's decision. The Court addressed
this rationale at great length, discussed the development of the right against self
incrimination, detailed official interrogators' historical and current practices, noted
the ability of police tactics to overbear the will of defendants, and emphasized the
need to curtail overzealous interrogation by suppressing the intended fruit of the
abusive interrogation, namely, the defendant's confession. Miranda, 384 U.S. at 445-
455.

      In Miranda itself, the Court made passing reference to a second rationale – the
inherent unreliability of coerced statements and the need to safeguard the truth-
seeking function of the courts by protecting defendants against the admission of
unreliable evidence. See, e.g, id. at 469-472. In Miranda's progeny, the Court
expounded on this trustworthiness rationale. See Tucker, 417 U.S. at 448 ("When
involuntary statements or the right against compulsory self-incrimination are
involved, a second justification for the exclusionary rule also has been asserted:
protection of the courts from reliance on untrustworthy evidence."); Elstad, 470 U.S.
at 308 (". . . the twin rationales – trustworthiness and deterrence"); Dickerson, 530
U.S. at 433 ("The roots of [the traditional voluntariness test] developed in the
common law, as the courts of England and then the United States recognized that
coerced confessions are inherently untrustworthy.").


                                         -13-
      When dealing with the suppression of a witness' presumptively coerced
statement – the actual statement involved in the Miranda violation – the two
rationales of deterrence and trustworthiness work in tandem to reinforce one another
in supporting the suppression of a defendant's statement. If the incentive to obtain
coerced statements is removed, police should be deterred against using coercive
methods. If a coerced statement is suppressed, a defendant is protected against the
damning consequences of a potentially untruthful, coerced statement. The Court
recognized and reaffirmed the importance of both rationales in Elstad when it
discussed Tucker, stating:

      In deciding "how sweeping the judicially imposed consequences" of a
      failure to administer Miranda warnings should be, 417 U.S., at 445, . .
      . , the Tucker Court noted that neither the general goal of deterring
      improper police conduct nor the Fifth Amendment goal of assuring
      trustworthy evidence would be served by suppression of the witness'
      testimony. The unwarned confession must, of course, be suppressed, but
      the Court ruled that introduction of the third-party witness' testimony did
      not violate Tucker's Fifth Amendment rights.

      We believe this reasoning applies with equal force when the alleged
      "fruit" of a noncoercive Miranda violation is neither a witness nor an
      article of evidence but the accused's own voluntary testimony. As in
      Tucker, the absence of any coercion or improper tactics undercuts the
      twin rationales – trustworthiness and deterrence – for a broader rule.

Elstad, 470 U.S. at 308 (emphasis added). In Elstad, as in Tucker, where the court
found that the "twin rationales – trustworthiness and deterrence" did not support
suppression, the Court admitted the derivative statement. This is in contrast with the
situation involving the suppression of a presumptively coerced and inherently
unreliable statement. Id. ("The unwarned confession must, of course, be suppressed
. . .").




                                         -14-
       Turning specifically to derivative physical evidence, we cannot discern that the
deterrence rationale serves a role that is greater or lesser than the role it serves in the
context of derivative statements. The trustworthiness rationale, however, appears to
fall away entirely and, if anything, militate against suppression. Physical evidence
speaks for itself. The reliability of derivative physical evidence is not called into
doubt by the fact of an underlying Miranda violation. Accordingly, the recognized
purposes of the Fifth Amendment exclusionary rule, as applied under Miranda,
suggest that the case for the admission of derivative physical evidence is stronger
even than the case for the admission of derivative, voluntary statements as sanctioned
by the Court in Elstad and Tucker.

       Turning next to decisions from other circuits, we find post-Dickerson cases that
are directly on point. In United States v. DeSumma, 272 F.3d 176, 177 (3rd Cir.
2001), the Third Circuit refused to suppress a pistol as fruit of the poisonous tree
from a non-Mirandized statement because, "suppressing evidence derived from a
voluntary but unwarned confession serves neither the goal of deterring coercive
police misconduct nor the purpose of ensuring trustworthy evidence." In DeSumma,
before administering any warnings, an agent handcuffed and patted down the
defendant. Having failed to detect any weapons, the agent asked the defendant if he
had any weapons. The defendant replied that there was a weapon in his car and gave
the agent the pad combination to open the car. After a suppression hearing, where the
district court determined that the pistol from the car was admissible, the Supreme
Court issued its opinion in Dickerson. On review, the Third Circuit considered the
impact of Dickerson, read Dickerson as having anticipated the attacks on Elstad, and
interpreted Dickerson as having spoken directly in defense of Elstad. The
DeSumma court stated, "Dickerson thus continued to observe the distinction between
Miranda's application to cases involving the Fifth, rather than the Fourth,
Amendment. Ultimately, the Fifth Amendment prevents the use of the non-
Mirandized statement rather than the introduction of derivative evidence."
DeSumma, 272 F.3d at 180. Accordingly, the Third Circuit relied on Dickerson's
distinction between Fourth and Fifth Amendment violations to conclude that Elstad

                                           -15-
remained valid precedent. In addition, the Third Circuit read Elstad, post-Dickerson,
as generally applicable to derivative physical evidence as well as derivative
statements. This approach is consistent with the Eighth Circuit's pre-Dickerson
understanding of Elstad as being applicable to various forms of derivative evidence.
See Wiley, 997 F.2d at 383.

       In United States v. Sterling, 283 F.3d 216, 218-219 (4th Cir. 2002), a post-
Dickerson case, the Fourth Circuit applied Elstad when it refused to suppress the
physical fruits of a Miranda violation. Factually, Sterling is similar to DeSumma. In
Sterling officers restrained a suspect in his home while searching for weapons in the
immediate vicinity. Officers found a handgun, and, before administering a warning,
asked the suspect if he had any other weapons. The suspect responded that there was
a shotgun outside in a truck. In holding that the shotgun was admissible, the Fourth
Circuit first reviewed its own pre-Dickerson cases that involved refusals to apply the
fruit of the poisonous tree doctrine to suppress physical evidence derived from
Miranda violations. Sterling, 283 F.3d at 219 ("[T]he exceptions the Court
established in Tucker and Elstad, supported [the] holding that 'derivative physical
evidence obtained as a result of an unwarned statement that was voluntary under the
Fifth Amendment is never fruit of the poisonous tree.'" (quoting United States v.
Elie, 111 F.3d 1135, 1142 (4th Cir. 1997))). The Fourth Circuit, like the Third
Circuit in DeSumma, relied on Dickerson's affirmation of Elstad. Noting that
"overruling by implication is not favored", Sterling, 283 F.3d at 219 (citing Agostini
v. Felton, 521, U.S. 203, 237 (1997)), the Fourth Circuit maintained its pre-
Dickerson interpretation of Elstad and Tucker as applicable not only to subsequent
statements and derivative witness testimony, but also to physical derivative evidence.

      The First Circuit, in United States v. Faulkingham, 295 F.3d 85 (1st Cir. 2002),
reached a different conclusion from that of the Third and Fourth Circuits. The facts
in Faulkingham involved a defendant whose non-Mirandized, albeit voluntary
statement led to the testimony of a co-conspirator and the seizure of illegal drugs.
The First Circuit acknowledged the Court's recognition of the "'twin rationales' for

                                        -16-
Miranda: trustworthiness and deterrence." Id. at 90 (citing Elstad, 470 U.S. at 308).
It then noted at least three categories of derivative evidence: "physical evidence,
statements by a witness who is not the unwarned defendant, and later statements by
the defendant himself after an initial unwarned statement." Faulkingham, 295 F.3d
at 91. Finding no controlling Supreme Court authority for the proposition that
different forms of derivative evidence merit different treatment, but interpreting
Dickerson's pronouncement of the constitutional stature of Miranda as having
strengthened arguments in favor of suppression, the First Circuit created a test for the
admissibility of derivative evidence that considered the relative importance of the
deterrent and trustworthiness rationales on a case-by-case basis. As noted by the First
Circuit, "[t]he balance [of the goals of deterrence and trustworthiness] necessarily
involves weighing the reliability of the unwarned derivative evidence against the need
for deterrence." Id. at 93. In applying the test, the court determined derivative
physical evidence was itself reliable and, because the officer's actions were merely
negligent rather than intentionally manipulative, the need for deterrence was low. Id.
After Faulkingham, then, the physical fruits of a Miranda violation in the First Circuit
may be admitted dependent upon the degree of malfeasance or misfeasance of the
offending officer viewed in light of the degree of inherent reliability or unreliability
of the particular derivative evidence.



       In Patane, the Tenth Circuit surveyed and rejected the approaches of the First,
Third, and Fourth Circuits. The Tenth Circuit found that Dickerson did, in fact,
undermine the doctrinal basis of Elstad and Tucker such that these two
Miranda progeny survived Dickerson but could not be extended beyond their facts
to apply in the context of physical derivative evidence. Patane, 304 F.3d at 1024-25.
In reaching this conclusion, the court in Patane emphasized the extent to which the
pre-Dickerson progeny of Miranda relied upon the now-invalid view that the
protections of Miranda were merely prophylactic. In addition, the Tenth Circuit
criticized Dickerson's reliance on a distinction between application of the
exclusionary rule under the Fourth and Fifth Amendments as insufficient to explain

                                         -17-
the Court's earlier references to Miranda as merely prophylactic. Patane, 304 F.3d at
1025 ("Elstad 'recognizes . . . that unreasonable searches under the Fourth
Amendment are different from unwarned interrogation under the Fifth Amendment.'
. . . The critical question, of course, is how the two are different."). Finally, the court
in Patane interpreted the decision in Elstad (and presumably the decision in Tucker)
as being uniquely dependent upon the ability of a witness or defendant to insulate a
subsequent statement or confession from the underlying Miranda violation through
the exercise of volition that is necessary to provide testimony. See Elstad, 470 U.S.
at 308-309 ("[A] living witness is not to be mechanically equated with the proffer of
inanimate evidentiary objects illegally seized. . . . [T]he living witness is an individual
human personality whose attributes of will, perception, memory, and volition interact
to determine what testimony he will give."); see also id. at 347 n.29 (Brennan, J.
dissenting) ("Notwithstanding the sweep of the Court's language, today's opinion
surely ought not be read as also foreclosing application of the traditional derivative-
evidence presumption to physical evidence obtained as a proximate result of a
Miranda violation. The Court relies heavily on individual 'volition' as an insulating
factor in successive confession cases.").

        Our review of other circuits' treatment of derivative physical evidence
convinces us that the approach of the Third and Fourth Circuits is consistent with our
pre-Dickerson application of the exclusionary rule under Miranda, our understanding
of the dual rationales behind Miranda, the Dickerson Court's ongoing endorsement
of the refusal to extend the fruits doctrine in Elstad and Tucker, and the lack of
authority from the Supreme Court instructing the use of different methods of
treatment for different forms of derivative evidence. Regarding the balancing test
created by the First Circuit, we do not find authority to support a test which
incorporates the state of mind of the offending officer into the analysis of
admissibility. That is not to say, however, that an officer's actions are irrelevant.
They remain relevant to the extent the officer's actions serve as a factor in the creation
of the interrogation environment which, if sufficiently coercive to make a defendant's


                                           -18-
confession actually involuntary, will prevent the admission of derivative evidence
even under the voluntariness standard of Elstad and Tucker.

       Regarding Patane, we find at least two compelling reasons not to join the Tenth
Circuit in its extension of the fruits doctrine. First, we find the Patane court's reliance
on that portion of Elstad which discussed volition – including the discussion in
footnoote 29 of Justice Brennan's dissent – contrary to our understanding of the
inherent reliability of physical evidence. Whereas evidence in the form of a statement
is unique in the sense that a person's volition always separates and insulates such
evidence, to some extent, from events precedent, we do not understand how the fact
of such insulation serves to enhance the reliability of a statement vis-a-vis physical
evidence. Further, unlike the Tenth Circuit, we do not read the Elstad majority's
reference to volition as necessary for the Court's holding, nor do we read Justice
Brennan's dissent as controlling. Accordingly, although the Court in Elstad referred
to the unique nature of testimony, we do not read Elstad as turning on that
characterization.

       Second, we simply find it necessary to accord greater deference to Dickerson's
preservation of the ongoing distinction in application of the exclusionary rule under
the Fourth and Fifth Amendments than did the Tenth Circuit in Patane. Accordingly,
we do not read Dickerson as having so dramatically changed the landscape under
Miranda as to limit by inference the established exceptions to Miranda. The Court
in Dickerson faced a challenging task. In preserving the protections of Miranda
against Congress's attempted imposition of a return to the pre-Miranda voluntariness
standard, the Court did not address Elstad for the purpose of cabining an established
exception, but merely to address anticipated, future attacks by explaining language
that appeared contrary to the Miranda-is-constitutional pronouncement of Dickerson.
Given the fact that the actual holding of Dickerson was unrelated to the rule of Elstad,
and that the discussion of Elstad was more an attempt to reconcile, rather than upset,
established exceptions, we feel compelled not to interpret Dickerson as having been
intended to narrowly limit the established exceptions.

                                           -19-
       In summary, we join the Third and Fourth Circuits in their post-Dickerson
interpretations of Elstad which mandate application of a voluntariness standard to
determine the admissibility of evidence derived from a Miranda violation without
discrimination in application of the rule to subsequent statements, witness testimony,
or physical evidence. In doing so, we refuse to interpret Dickerson as having altered
the exclusionary rule in a manner that would effectively permit the government to
compel a defendant to testify against himself under Elstad and yet not permit the
admission of derivative physical evidence. Such an outcome – greater protection
against the use of physical evidence than testimony – would not be intuitively
consistent with the fact that Miranda protects the Self-Incrimination Clause of the
Fifth Amendment rather than a defendant's Fourth Amendment rights. Further, such
a distinction would not be intuitively consistent with the government's inability to
compel testimony, but ability to compel the disclosure of non-testimonial evidence.
See Pennsylvania v. Muniz, 496 U.S. 582, 590 (1990) ("both federal and state courts
have usually held that [the Fifth Amendment's Self Incrimination Clause] offers no
protection against compulsion to submit to fingerprinting, photographing, or
measurements, to write or speak for identification, to appear in court, to stand, to
assume a stance, to walk, or to make a particular gesture.") (quoting Schmerber v.
California, 384 U.S. 757, 764 (1966)) .

                                         IV.

       Because we find the derivative statement and physical evidence admissible, we
are not strictly bound to rule on the remaining issue – the inevitable discovery of the
physical evidence. We address this issue, however, because the Court granted
certiorari in Patane, 304 F.3d 1013, and if the Court's ruling affects our present
decision, we will not have served the interests of judicial economy by having failed
to rule on the issue of inevitable discovery at this time.

      The test for inevitable discovery as set forth in Nix v. Williams, 467 U.S. 431
(1984) includes two elements. First, there must be an ongoing line of investigation

                                         -20-
that is distinct from the impermissible or unlawful technique. Id. at 444. Here it is
undisputed that this first element is satisfied. The search was being conducted
pursuant to a valid and unchallenged search warrant of sufficient scope to allow the
officers to search the location where the drugs were actually found. Second, there
must be a showing of a reasonable probability that the permissible line of
investigation would have led to the independent discovery of the evidence. Id. The
required standard of proof on this evidentiary issue is a simple preponderance of the
evidence, not proof beyond a reasonable doubt. United States v. Feldhacker, 849
F.2d 293, 296 (8th Cir. 1988); United States v. Conner, 127 F.3d 663, 667 (8th Cir.
1997). Here, we agree with the district court that the government failed to make the
required showing.

       We have noted that in applying Nix, it is important to focus not on what the
officers actually did after unlawfully recovering evidence, but on what the officers
were reasonably likely to have done had the unlawful recovery not occurred.
Feldhacker, 849 F.2d at 296 ("The difficulty with appellants' approach to the
inevitable-discovery rule is that it mistakenly focuses on what investigators actually
did after the unlawful recovery, rather than what they would have done in the absence
of such an illegal disclosure. This inquiry necessarily entails reasoning about
hypothetical circumstances contrary to fact."). Accordingly, it is important to note
that we do not discount the availability of the drug dog simply because the officers
did not actually call the drug dog or discount the searching ability of the officers
simply because they were not forced to display that ability by actually uncovering the
hidden compartment.

       Nevertheless, in comparing the facts of the present case to the facts of Nix, we
concur in the judgment of the district court that the government failed to demonstrate
the requisite reasonable probability of discovery. The defendant in Nix confessed the
location of a child-victim's body to an officer while in route between Davenport and
Des Moines, Iowa. The location was about 2 ½ miles away from an area that search
teams had divided into grids and were moving through in a methodical fashion. The

                                         -21-
Court in Nix ruled that had the defendant not confessed the location, there was a
reasonable probability that the search team would have moved into the next county
in the direction of the body to search the location where the body was ultimately
found. Adding to the reasonable probability of discovery in Nix was the fact that the
search leader had instructed searchers to look in ditches and culverts, that the body
was near a culvert, and that the search leader testified that he would have moved into
the area where the body was found.

       In the present case, there was no such testimony concerning specific details of
the situs of the search or the intentions or definite plans of the searchers. As noted
above, the lead officer did not claim to have a specific intention to call the dog that
happened to be available. He merely described a general search method. Further, he
could not identify the dog or its controller by name. We will not infer a reasonable
probability that a dog would have been called and that the dog would have discovered
drugs when the government cannot identify the dog and the dog's presence was a
fortuitous coincidence rather than a planned aspect of the search. Regarding the
likelihood that officers would have uncovered the secret panel without the assistance
of a dog, we again find a lack of specific details to support a conclusion that
discovery was reasonably probable.

      Regarding the currency discovered in a coat pocket, we agree with the district
court that there was a reasonable probability of discovery. Officers had a valid
warrant sufficient in scope to permit the checking of coat pockets, and there is more
than a reasonable probability that execution of the warrant would have entailed
looking through pockets.

      For all of the reasons set forth herein, we reverse the district court's suppression
of physical evidence and partial suppression of the post-warning statement and
remand for further proceedings consistent with this opinion.




                                          -22-
      HEANEY, Circuit Judge, dissenting.

       The majority obscures the real issue in this case: May the police violate a
person’s constitutional rights, and then exploit that violation to obtain evidence that
they otherwise would not have secured? Miranda v. Arizona, 384 U.S. 436 (1966),
and related cases, clearly mandate that this evidence must be excluded. Both the
magistrate judge4 and the district court5 correctly determined that the cocaine seized
by the police would not have been discovered absent the violation of Angel Benito
Villalba-Alvarado’s constitutional rights. Since the evidence seized and a portion of
Villalba-Alvarado’s subsequent confession flowed from the constitutional violation,
they must be suppressed. I would thus affirm the district court.

                                          I.

      The essential facts are stated in the majority opinion. I believe it important,
however, to underscore the following details. The execution of the warrant appears
to have been directed by Thomas Peterson, a seven year veteran of the Minneapolis
police force, the past three and a half of which he was assigned to the narcotics unit.
In the moments before the search was executed, officers observed the defendant
driving near his residence. By order of Officer Peterson, Villalba-Alvarado’s car was
stopped five blocks from his apartment. He was removed from the car by uniformed
Minneapolis Police Officer Blade and handcuffed. Officer Peterson arrived on the
scene and informed Villalba-Alvarado that he had a warrant to search Villalba-
Alvarado, his car, and his home. Again, at the direction of Officer Peterson, Officer
Blade transported Villalba-Alvarado to his residence in the back of a Minneapolis
squad car.

      4
       The Honorable Susan Richard Nelson, United States Magistrate Judge for the
District of Minnesota.
      5
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

                                         -23-
       Once Villalba-Alvarado was at his apartment, Officer Peterson took custody
of him from Officer Blade, switching handcuffs so that Villalba-Alvarado was
restrained with Officer Peterson’s set. Next, Officer Peterson brought Villalba-
Alvarado toward his apartment, walking him up the stairs to the unit. At this point,
Officer Peterson told Villalba-Alvarado for a second time that he had a warrant and
would be performing a detailed search of Villalba-Alvarado, his car, and his
apartment for drugs and money. Neither Peterson, nor any other officer, administered
Villalba-Alvarado his Miranda warnings.

       In response to Officer Peterson, Villalba-Alvarado, still handcuffed, directed
Officer Peterson to a hidden compartment in a small hutch. Inside the compartment
was approximately one-half pound of cocaine and a scale. Villalba-Alvarado also
told Peterson that there was money in the interior pocket of a suit jacket hanging up
in a closet. Officers searched and found $3,360, a portion of which was pre-recorded
buy money from an earlier sting.

       After the cocaine and money were seized, Officer Peterson asked Villalba-
Alvarado if he could give the officers any explanation for the contraband. Because
Villalba-Alvarado wished to speak in Spanish, he was placed in the custody of an
officer who could accommodate him. Villalba-Alvarado was then transported to jail,
where for the first time he was informed of his Miranda rights. He waived his rights
and gave an incriminating statement, the first portion of which related to the seized
items.

       Villalba-Alvarado was promptly charged with possession with intent to
distribute cocaine.6 He moved to suppress the evidence seized and statements taken
from him, because they were obtained as a direct result of a violation of his Miranda
rights. The government responded by arguing that the so-called “fruit of the
poisonous tree” doctrine upon which the defendant relied had no application to

      6
          21 U.S.C. § 841(a)(1), 841(b)(1)(B).

                                         -24-
Miranda violations, and thus the evidence and statements were admissible. The
district court referred the matter to a magistrate judge, who recommended suppressing
the cocaine, scale, and Villalba-Alvarado’s statement.7 After conducting a de novo
review of the record, the district court agreed that the cocaine and scale should be
suppressed, but limited suppression of Villalba-Alvarado’s statement to only those
portions that concerned the illegally-obtained evidence. Thereafter, the government
filed a document entitled a “Motion to Reconsider” the court’s suppression order,
arguing again that the derivative evidence should be admitted. The district court
denied the motion, and this interlocutory appeal followed.

      I will first address the issue of whether the district court correctly suppressed
the physical evidence that flowed from the Miranda violation, and then consider
whether Villalba-Alvarado’s second statement must be suppressed. My reasons for
addressing the issues in this order are twofold: 1) this order follows the chronology
of events, and 2) the fact that the physical evidence must be suppressed is the impetus
for suppressing a portion of Villalba-Alvarado’s statement.

                                          II.

       The majority suggests that United States v. Wiley, 997 F.2d 378 (8th Cir.
1993),8 supports its conclusion that physical evidence derived from a Miranda
violation should not be suppressed. I cannot agree. Since Wiley was decided, the
Supreme Court has made clear that a Miranda violation is a constitutional violation,
and must be treated accordingly. See Dickerson v. United States, 530 U.S. 428


      7
       The government did not seek to admit any of the statements Villalba-Alvarado
made during the execution of the search warrant, conceding that they were taken in
violation of his Miranda rights. The statement in question is the one given by
Villalba-Alvarado at the jail following his arrest.
      8
        Wiley was subsequently overruled on other grounds. See United States v.
Bieri, 21 F.3d 819, 823 (1994).

                                         -25-
(2000). Moreover, because Miranda was primarily concerned with deterring police
intrusions on the constitutional rights of suspects, it significantly weakens Miranda
to suggest that its exclusionary rule should be limited to only the initial unwarned
statement. Lastly, despite the majority’s claim that the exclusionary rule is applied
differently in the Fourth and Fifth Amendment contexts, both the Fourth and Fifth
Amendments have historically supported the use of the “fruit of the poisonous tree”
doctrine.

                                           A.

        In United States v. Wiley, 997 F.2d 378 (8th Cir. 1993), the defendant was
taken into custody as part of an investigation of a drug conspiracy. The police
brought him to a motel room and asked him to provide information that would assist
their investigation. At no time was the defendant given his Miranda warnings. As
a result of the interrogation, Wiley gave a statement implicating himself in the drug
trade and led officers to incriminating physical evidence. He moved to suppress the
physical evidence, but the district court denied his motion. In affirming the decision,
our court turned for guidance to Oregon v. Elstad, 470 U.S. 298 (1985). We noted
that in Elstad, the Supreme Court “rejected a fruit-of-the-poisonous-tree argument and
held that a second confession, given after a proper Miranda warning, was admissible,
although it came on the heels of an unwarned statement.” Wiley, 997 F.2d at 383.
We reasoned “[b]y analogy to Elstad,” that physical evidence obtained as a result of
a Miranda violation should be treated no differently.9 Id.


      9
        Elstad was limited to circumstances involving subsequent statements, not the
subsequent seizure of evidence. Elstad, 470 U.S. at 347 n.29 (Brennan, J., dissenting)
(“[T]oday’s opinion surely ought not be read as also foreclosing application of the
traditional derivative-evidence presumption to physical evidence obtained as a
proximate result of a Miranda violation.”). These are two different types of evidence
that do not lend themselves well to a parallel analysis. See id. (citing majority opinion
at 308-09). The Elstad Court in fact recognized as much: while a second confession
following proper Miranda warnings may be admissible because “a careful and

                                          -26-
       Were it not for the recent Supreme Court decision in Dickerson v. United
States, 530 U.S. 428 (2000), we would be bound by Wiley. Until Dickerson, many
believed that Miranda was merely a type of constitutional prophylaxis–not itself
constitutional, but rather a medium to protect the rights of the accused. The Supreme
Court appeared to rely on this principle in its decision in Elstad. Elstad, 470 U.S. at
305 (stating that "[t]he prophylactic Miranda warnings therefore are not themselves
rights protected by the Constitution” (quotation omitted)). In Dickerson, however,
the Supreme Court clarified that the Miranda decision was itself constitutional in
nature, and not merely prophylactic. Dickerson, 530 U.S. at 432 (stating that Miranda
was a “constitutional decision of this court”).

      Wiley relied heavily on the Supreme Court’s pre-Dickerson jurisprudence,
particularly Elstad, to establish that derivative evidence was beyond the scope of
Miranda’s exclusionary rule.10 See, e.g., Wiley, 997 F.2d at 383 (citing Elstad for the
proposition that the “Fifth Amendment . . . prohibits only the use of compelled
testimony”). Since the rationale behind Elstad is no longer sound, it follows that
Wiley–a case based on an extension of Elstad’s flawed analysis–cannot remain intact.

                                          B.

      Since Dickerson, the circuits have split on the issue of whether physical
evidence derived from a Miranda violation must be suppressed. Compare United



thorough administration of Miranda warnings serves to cure the condition that
rendered the unwarned statement inadmissible,” id. at 310-11, the Court could not
employ the same “curing” analysis to derivative physical evidence. Unlike a
subsequent confession, which relies in some part on the willingness of the confessor
to give the statement, physical evidence derived from an improper interrogation
remains just that–the direct product of the improper interrogation.
      10
       Dickerson reaffirmed that Elstad’s holding remains good law, even if reached
through a mistaken analysis. Dickerson, 530 U.S. at 441.

                                         -27-
States v. Sterling, 283 F.3d 216, 219 (4th Cir. 2002) (refusing, in a post-Dickerson
case, to apply the “fruit of the poisonous tree” doctrine to evidence obtained as result
of a Miranda violation), and United States v. DeSumma, 272 F.3d 176, 180 (3d Cir.
2001) (same), with United States v. Patane, 304 F.3d 1013, 1023 (10th Cir. 2002)
(holding Miranda’s deterrent purpose will only be effectuated through application of
“fruit of poisonous tree” doctrine to derivative evidence of Miranda violations) cert.
granted, 123 S.Ct. 1788 (2003), and United States v. Faulkingham, 295 F.3d 85, 93-
94 (1st Cir. 2002) (recognizing “fruit of the poisonous tree” doctrine may apply
where officers deliberately fail to give accused required Miranda warnings). After
carefully considering the differing approaches and results of the circuits, it is the
Tenth Circuit’s decision in Patane, in my view, that is the most faithful to the
Constitution and will best protect the rights of the accused.

       The Patane court first considered whether a pre-Dickerson decision of the
circuit that admitted physical evidence derived from Miranda violations, was still
viable. Because that decision, like ours in Wiley, rested heavily on the faulty premise
that a Miranda violation is not a Fifth Amendment violation, the court concluded that
it was no longer valid. Patane, 304 F.3d at 1023.

       Because the Tenth Circuit had the benefit of the decisions of the First, Third,
and Fourth Circuits, it next considered the approaches of these circuits, in an effort
to determine how to best effectuate Miranda’s constitutional principles. It recognized
that the Third and Fourth Circuits’ wholesale rejection of the “fruit of the poisonous
tree” doctrine served to undermine the deterrent effect of Miranda’s exclusionary
rule. Patane, 304 F.3d at 1026.11 It then reviewed the approach taken by the First

      11
       In DeSumma, the Third Circuit opined that suppressing the fruits of a
Miranda violation “would be inconsistent with deterring improper police conduct”
because “[n]o constitutional violation occurs” as the result of a failure to administer
warnings. DeSumma, 272 F.3d at 180. This reasoning turns a blind eye to
Dickerson’s holding, and instead continues under the mistaken belief that technical
Miranda violations are of no import. Dickerson makes clear that Miranda violations

                                         -28-
Circuit in United States v. Faulkingham, 295 F.3d 85 (1st Cir. 2002). While the
Patane court agreed with the First Circuit that the “fruit of the poisonous tree”
doctrine applies to Miranda violations, it could not accept the artificial distinction
between negligent and intentional violations suggested by the First Circuit. Patane,
304 F.3d at 1028. It reasoned, correctly in my view, that the “personal right to be free
of government invasions of the privilege against self-incrimination is violated just as
surely by a negligent failure to administer Miranda warnings as a deliberate failure.”
Id.

        Deterrence served as the motivating principle for the Supreme Court’s decision
in Miranda, and it remains so today: “[F]or more than thirty years, the dominant
rationale for excluding coerced confessions has been the Court’s disapproval of and
attempts to discourage the offensive police methods that produce such confessions,
regardless of their reliability.” Yale Kamisar, On the “Fruits” of Miranda Violations,
Coerced Confessions, and Compelled Testimony, 93 Mich. L. Rev. 929, 1005 (1995).
It is this same principle that has motivated the Court to extend the exclusionary rule
to evidence derived from the initial constitutional violation, such that “the
prosecution is not to be put in a better position than it would have been in if no


are constitutional violations. 530 U.S. at 432. It does not comport with my
understanding of constitutional law to hold that an officer acts properly when he
violates the constitutional rights of the accused. Rather, this is precisely the type of
improper governmental conduct that the exclusionary rule seeks to curtail. Nix v.
Williams, 467 U.S. 431, 442-43 (1984).

       While the Fourth Circuit’s decision in Sterling, 283 F.3d at 219, recognized
that the failure to deliver Miranda warnings was itself a constitutional violation, that
court nonetheless reasoned that Dickerson’s “reference to and reaffirmation of
Miranda’s progeny indicates that the established exceptions, like those in [Michigan
v. Tucker , 417 U.S. 433 (1974)] and Elstad, survive.” Id. While Tucker and Elstad
were not overruled by Dickerson, neither of those cases involved physical evidence.
To reach the result it did, the Fourth Circuit was forced to extend the analysis of
inapposite Supreme Court cases.

                                         -29-
illegality had transpired.” Williams, 467 U.S. at 443. “The core rationale
consistently advanced by this Court for extending the exclusionary rule to evidence
that is the fruit of unlawful police conduct has been that this admittedly drastic and
socially costly course is needed to deter police from violations of constitutional and
statutory protections.”12 Id. at 442-43.

       Failing to extend the exclusionary rule to derivative evidence may create
incentives for officers to violate the rights of the accused in order to secure
convictions. Steven D. Clymer, Are Police Free To Disregard Miranda?, 112 Yale
L.J. 447, 502-03 (2002). In the words of Professor Kamisar, “is disapproval or
discouragement of objectionable police methods likely to be taken seriously by law
enforcement officials or the public if physical evidence derived indirectly from such
methods is used to convict a defendant?” Kamisar, supra, at 941. Recently, studies
have suggested that law enforcement officers are often not following the tenets of
Miranda. See Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-
First Century, 99 Mich. L. Rev. 1000, 1010 (2001) (noting that “in some jurisdictions
police are systematically trained to violate Miranda by questioning ‘outside
Miranda’”); Charles D. Weisselberg, In the Stationhouse After Dickerson, 99 Mich.
L. Rev. 1121, 1123-54 (2001) (detailing the trend in California for officers to
question suspects without regard to Miranda warnings or suspects’ invocation of
same). Scholars suggest that one reason for this trend is that the government has
recognized that often the violation of Miranda will yield stronger evidence than
compliance with the rule. Clymer, supra, at 502-03 (“If the Court interpreted Miranda
to require a robust exclusionary rule, similar to those that it applies to immunized
testimony and coerced confessions, it would promote obedience to the Miranda
requirements.” (footnotes omitted)). In light of the purpose of the exclusionary rule


      12
         While deterrence is the primary guiding principle of the exclusionary rule, “it
is not deterrence alone that warrants the exclusion of evidence illegally obtained–it
is ‘the imperative of judicial integrity.’” Harrison v. United States, 392 U.S. 219, 224
n.10 (quoting Elkins v. United States, 364 U.S. 206, 222 (1960)).

                                         -30-
and Miranda’s constitutional status, it is difficult to fathom not extending the
exclusionary rule to evidence derived from Miranda violations.

                                           C.

       Lastly, it bears brief mention that, despite intimations in Sterling, 283 F.3d at
219, and DeSumma, 272 F.3d at 180, to the contrary, the “fruit of the poisonous tree”
doctrine is not something foreign to the Fifth Amendment. While Dickerson
acknowledged that the exclusionary rule has a different application in Fourth
Amendment cases than in Fifth Amendment cases, Dickerson, 530 U.S. at 441, the
Court has never suggested that the “fruit of the poisonous tree” doctrine is confined
to the Fourth Amendment, see Brown v. Illinois, 422 U.S. 590, 601 (1975) (“The
exclusionary rule, however, when utilized to effectuate the Fourth Amendment,
serves interests and policies that are distinct from those it serves under the Fifth. It
is directed at all unlawful searches and seizures, and not merely those that happen to
produce incriminating material or testimony as fruits.”). The “Court has applied the
[“fruit of the poisonous tree”] doctrine where the violations were of the Sixth
Amendment, as well as of the Fifth Amendment.” Williams, 467 U.S. at 442 (citation
and footnote omitted); accord Patane, 304 F.3d at 1021 n.4 (“Indeed, in Miranda itself
the Court stated that ‘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.’” (quoting Miranda, 384 U.S. at 454 (emphasis in Patane))). For
instance, in Kastigar v. United States, 406 U.S. 441 (1972), the Court held that a
federal immunity statute must protect the witness from prosecution based not only on
the use of that witness’s actual words, but also based on evidence derived from his
statement in order to comply with the Fifth Amendment. Id. at 453. The Court
recognized that immunizing compelled testimony, and evidence derived from that
testimony, was coextensive with the privilege against self-incrimination, for it left the
witness and the government in the same position as if the witness had claimed the
privilege. Id. at 458-59. In other words, the privilege against self-incrimination


                                          -31-
extended not only to direct statements, but to any fruits of those statements that could
be used to incriminate the defendant.

      Certainly, the hands of law enforcement will not be tied by application of the
exclusionary rule in a manner faithful to Miranda. Rather, the rule will merely place
the parties in the position they would have been absent the constitutional violation.
Accord Williams, 467 U.S. at 442-43. If law enforcement can show by a
preponderance of the evidence that an exception to the exclusionary rule applies, the
evidence should be admitted. Id. at 444. But here no such showing has been made,
and I am left with the firm conviction that the cocaine and scale were properly
suppressed by the district court.

                                           III.

       Having established that the cocaine and scale were illegally obtained from
Villalba-Alvarado’s residence, the question of what effect to give his properly warned
statement remains. Because a portion of this statement concerns the cocaine and
scale, I would suppress that portion of his statement as a further fruit of the initial
illegality. Cf. Harrison v. United States, 392 U.S. 219, 222 (1968).13

      The majority references our recent opinion in United States v. Fellers, 285 F.3d
721 (8th Cir. 2002), cert. granted, 123 S.Ct. 1480 (2003), for the proposition that
where an initial statement is inadmissible because of a Miranda violation, a
subsequent statement may be admissible if it was preceded by a proper Miranda
warning and waiver. I agree that Fellers stands for this principle, but do not find


      13
        As to the remainder of Villalba-Alvarado’s statement, no appeal has been
taken from the district court’s order allowing its use at trial. Thus, it is not for us to
decide at this time whether this portion of his statement should be admitted. It bears
mention, however, that the holding in Elstad has not yet been overruled and has
addressed a similar issue.

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Fellers instructive in the circumstance presented here. In Fellers, the defendant made
an unwarned statement, then later made another statement following the
administration of Miranda warnings. He argued that his second statement was tainted
by the earlier, improperly elicited statement, and that the taint was not removed by the
simple recitation of his Miranda rights before he gave his second statement.
Recognizing that the defendant’s argument was foreclosed by Elstad v. Oregon, 470
U.S. 298 (1985), we denied relief. Fellers, 285 F.3d at 724.

       A read of both cases reveals that Elstad is factually indistinguishable from
Fellers. In both cases, officers elicited statements from the defendants without
properly administering Miranda warnings. Elstad, 470 U.S. at 301; Fellers, 285 F.3d
at 723. Both defendants made statements in response to this questioning, and then
made subsequent statements following Miranda warnings. Elstad, 470 U.S. at 301-
02; Fellers, 285 F.3d at 724. Neither case involved the issue presented here: Whether,
when a subsequent statement concerns illegally obtained evidence, that statement can
be admitted.

       Elstad itself recognized that the government must take steps to purge the taint
of the initial unwarned statement. Elstad, 470 U.S. at 310-11. As discussed in detail
above, however, there is a difference between unwarned statements and physical
evidence derived from those statements. Thus, while the simple recitation of a
Miranda warning may be sufficient to “cure” a second statement from the illegality
of an earlier one, that same rule does not apply to statements that directly relate to
illegally obtained evidence. In Fahy v. Connecticut, 375 U.S. 85, 90-91 (1963), the
Supreme Court clearly indicated that where a subsequent confession was induced by
illegally seized evidence, the confession itself may be suppressed. It noted that this
position was faithful to the longstanding rule that the “essence of a provision
forbidding the acquisition of evidence in a certain way is that not merely evidence so
acquired shall not be used before the Court but that it shall not be used at all.” Id. at
91 (quoting Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920));
accord Harrison v. United States, 392 U.S. 219, 222 (1968) (holding that where

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defendant’s trial testimony was induced by illegally obtained confessions, admission
of such testimony was error). The portion of the statement suppressed by the district
court dealt directly with the cocaine and scale, both of which were obtained by
violation of Villalba-Alvarado’s Miranda rights. The district court’s approach was
true to relevant Supreme Court precedent, and should not be reversed.

                                        IV.

      The physical evidence in this case was obtained in violation of Villalba-
Alvarado’s constitutional rights. The district court recognized as much, and properly
suppressed both that evidence and the portion of Villalba-Alvarado’s statement that
concerned that evidence. I would affirm the district court, and thus respectfully
dissent.
                      ______________________________




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