                   IN THE SUPREME COURT OF TENNESSEE
                               AT JACKSON
                                 November 16, 2000 Session

                 STATE OF TENNESSEE v. TIMOTHY WALTON

                  Appeal by Permission from the Court of Criminal Appeals
                              Circuit Court for Dyer County
                          No. C97-205 R. Lee Moore, Jr., Judge


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


ADOLPHO A. BIRCH, JR., J., concurring and dissenting.

        I agree with the majority that the State violated the requirements of Miranda v. Arizona by
subjecting Walton to custodial interrogation without informing him of his Constitutional rights. See
generally 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thus, I concur in the conclusion
that Walton’s incriminating statements should be suppressed. The majority fails, however, to take
the next logical step, which would be to suppress also the physical evidence obtained as a direct
result of the Miranda violation. Because this failure constitutes, in my opinion, a gross incursion
upon the letter and spirit of Miranda and tends to invite open defiance and disregard of the Miranda
doctrine by those bound to respect it, I must respectfully dissent.

         As conceded by the majority, the issue whether physical evidence should be suppressed if
discovered by means of a Miranda violation has never been directly addressed by the United States
Supreme Court or by this Court. Majority opn. at 23, 32. Nevertheless, despite the absence of clear
precedent, the majority concludes that “the clear trend under the federal constitution” is to admit
physical evidence obtained in violation of Miranda. Id. at 29. The authorities relied upon by the
majority, however, provide questionable support for the rule it has established. Michigan v. Tucker
recognized that a defendant could not suppress the testimony of a state witness whose identity was
disclosed through statements made by the defendant during a custodial interrogation in violation of
Miranda. See generally Tucker, 417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974). Live
witnesses, however, always have been treated differently than inanimate evidence, even under the
broader exclusionary rule jurisprudence of the Fourth Amendment. See, e.g., United States v.
Ceccolini, 435 U.S. 268, 280, 98 S. Ct. 1054, 1062, 55 L. Ed. 2d 182 (1974) (holding that the Fourth
Amendment exclusionary rule “should be invoked with much greater reluctance where the claim is
based on a causal relationship between a constitutional violation and the discovery of a live witness
than when a similar claim is advanced to support suppression of an inanimate object”). Likewise,
the focus of Oregon v. Elstad was whether a suspect’s voluntary confession was “tainted” by an
earlier, improper confession obtained in violation of Miranda. See generally Elstad, 470 U.S. 298,
105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985). This is a proposition clearly distinguishable from the
question whether evidence should be admitted when it was obtained as a direct result of the Miranda
violation itself.
        And in Rice v. State, the principal Tennessee authority cited by the majority, the confession
of the prisoner was induced by false promises that he would not be prosecuted, and that he would
be given money, were he to confess his crimes. 50 Tenn. (3 Heisk.) 215 (Tenn. 1871). The greater
weight of authority, however, suggests that promises of leniency or money such as were offered in
Rice overbear the accused’s free will sufficiently that a confession induced by such means should
be viewed as a product of coercion. See, e.g., United States v. Rogers, 906 F.2d 189 (5th Cir. 1990);
Sossamon v. State, 816 S.W.2d 340 (Tex. Crim. App. 1991); State v. Pickar, 453 N.W.2d 783 (N.D.
1990); State v. Hanson, 382 S.E.2d 547 (W. Va. 1989); Walker v. State, 233 N.E.2d 483 (Ind. 1968);
State v. Ely, 390 P.2d 348 (Or. 1964); cf. also Arizona v. Fulminate, 499 U.S. 279, 111 S. Ct. 1246,
113 L. Ed. 2d 302 (1991) (stating that promises that induce a confession may constitute coercion
when the circumstances surrounding the promise are “sufficiently compelling to overbear the
suspect’s will in light of . . . [those] circumstances”). Thus, it appears that the physical evidence
which was admitted in Rice would likely be suppressed under the majority’s own analysis, since the
physical fruits of a coerced confession would not be admissible even under the standard it proposes.
Accordingly, Rice lends little weight to the majority’s argument that physical fruits of a Miranda
violation should be admissible as evidence.

        The better method, in my view, for determining whether physical fruits of a Miranda
violation should be suppressed would be to consider the interests served by Miranda’s exclusionary
rule and determine whether those interests would be advanced by applying the rule to physical
evidence. The right protected by Miranda is the Fifth Amendment right against self-incrimination,
which prohibits the State from compelling a defendant “in any criminal case to be a witness against
himself.” U.S. Const. amend. V; Miranda v. Arizona, 384 U.S. at 439, 86 S. Ct. at 1609. That same
right against self-incrimination is also protected by Article I, section 9 of the Tennessee Constitution,
which this Court regards as even “broader and more protective of individual rights” than the Fifth
Amendment. See State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992). With its holding in Miranda,
the United States Supreme Court responded to the advent of modern custodial police interrogation
techniques, which “brought with it an increased concern about confessions obtained by coercion.”
Dickerson v. United States, 530 U.S. 428, ___, 120 S. Ct. 2326, 2331, 147 L. Ed. 2d 405 (2000);
Miranda, 384 U.S. at 445-58, 86 S. Ct. at 1612-19. The Miranda Court acknowledged that police
interrogation, by its very character, subjects the accused to formidable pressure and isolation, and
it concluded that “[e]ven without employing brutality, the ‘third degree’ or [other] specific
stratagems . . . the very fact of custodial interrogation exacts a heavy toll on individual liberty and
trades on the weakness of individuals.” 384 U.S. at 455, 86 S. Ct. at 1617-18. As noted by the Court
in a subsequent case upholding Miranda, “the coercion inherent in custodial interrogation blurs the
line between voluntary and involuntary statements, and thus heightens the risk that an individual will
not be ‘accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate
himself.’” Dickerson, 530 U.S. at ___, 120 S. Ct. at 2331 (quoting Miranda, 384 U.S. at 439, 86 S.
Ct. at 1609) (emphasis added).

        Thus, the Court fashioned the requirements of Miranda in response to the necessity for
procedural safeguards which might provide a “fully effective means . . . to inform accused persons
of their right of silence and to assure a continuous opportunity to exercise it.” Miranda, 384 U.S.


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at 444, 86 S. Ct. at 1602; see also Illinois v. Perkins, 496 U.S. 292, 296, 110 S. Ct. 2394, 110 L. Ed.
2d 243 (1990) (describing Miranda’s requirements as resting on “the Fifth Amendment privilege
against self incrimination”). Because the lines between voluntary confession and impermissible
coercion often blur during custodial interrogation, the Court found it essential that the traditional
totality-of-the-circumstances test for voluntariness be expanded, and thus the Miranda Court crafted
a “prophylactic” rule in order to insulate and fully protect the rights of the accused. Cf. Withrow v.
Williams, 507 U.S. 680, 691, 113 S. Ct. 1745, 123 L. Ed. 2d 407 (1993) (commenting that
“[p]rophylactic though it may be, in protecting a defendant’s . . . privilege against self-incrimination,
Miranda safeguards a ‘fundamental trial right’”). As pointed out in Dickerson, “the [Miranda] Court
noted that reliance on the traditional totality-of-the-circumstances test raised a risk of overlooking
[a coerced] custodial confession, . . . a risk that the Court found unacceptably great when the
confession is offered in the case in chief to prove guilt.” Dickerson, 530 U.S. at ___, 120 S. Ct. at
2335.

         The rule embraced by the majority, which, when implemented would suppress the physical
fruits of a Miranda violation only when the statements leading to the discovery of the evidence were
coerced, is inappropriate for the very reasons that the Miranda requirements were established. The
majority’s rule assumes that a totality-of-the-circumstances test is sufficient for determining whether
statements leading to the discovery of physical evidence, made during a custodial interrogation, were
voluntarily made. As recognized in Miranda, however, the totality-of-the-circumstances analysis
fails to fully protect the accused from violation of the Fifth Amendment privilege precisely because
it is exceedingly difficult to discern where a statement divulged during a custodial interrogation lies
on the already blurred line between voluntariness and coercion. 384 U.S. at 455, 86 S. Ct. at 1617-
18. If it were practicable for reviewing courts to determine through a simple totality-of-the-
circumstances analysis whether statements made during custodial interrogation were coerced, there
would be no need for Miranda. Under the majority’s analysis, the risk that physical evidence will
be admitted erroneously when, in actuality, that evidence has been obtained through unconstitutional
coercion, is too great.

         The requirements of Miranda acknowledge that the right against compelled self-incrimination
must be broadly insulated if the rights of the accused are to be adequately protected. If this goal is
to be accomplished, Miranda’s exclusionary rule must be applied in a manner which ensures that
police are deterred from violating the accused’s Fifth Amendment rights. Cf. Collazo v. Estelle, 940
F.2d 411 (9th Cir. 1991) (noting that the due process exclusionary rule for confessions is intended,
at least in part, to deter improper police conduct). Clearly, then, the goals of Miranda are advanced
if police are prevented from using physical evidence they obtain from a Miranda violation, for this
should deter them from violating the rules therein established.

       That police will not be deterred from violating a suspect’s Miranda rights if physical fruits
of those violations are allowed in evidence is not idle speculation. Recently, scholars have
documented the development of the relatively new police practice of “questioning outside Miranda.”
See Joshua Dressler and George C. Thomas III, Criminal Procedure: Principles, Policies, and
Perspectives at 605 (1999); Charles D. Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109 (1998).


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According to these commentators, police subscribing to this practice deliberately interrogate suspects
without informing them of their Miranda rights, sometimes even telling them that the statements they
make “outside Miranda” cannot be used against them. See Dressler and Thomas, supra, at 605,
Weisselberg, supra, at 160. One California police training video goes so far as to instruct police
officers that “[w]hen you violate Miranda, you’re not violating the Constitution. Miranda is not the
Constitution. It’s a court-created decision that affects the admissibility of testimonial evidence and
that’s all it is. So you don’t violate any law. You don’t violate the Constitution.” Weisselberg,
supra, at 110 (quoting Training Videotape, Questioning: “Outside Miranda” (Greg Gulen
Productions 1990)). While no one knows how prevalent the practice of questioning “outside
Miranda” may be, there is no doubt that inherent in such questioning lies an increased risk that
violence will be done to the constitutional rights of the accused. As stated by Weisselberg:

               [T]he new vision transforms Miranda from a decision that protects a
               suspect into a new and aggressive tool for law enforcement. Under
               this practice, officers comply with the warning requirements of
               Miranda, but then represent that the suspect’s assertion of rights
               makes a full statement perfectly safe. Of course, given the current use
               of the statements to impeach and to discover other evidence, the
               officers’ assurances at best mislead the suspect and at worst directly
               deceive him or her regarding the true state of the law.

Weisselberg, supra, at 161-62. It is difficult to deny that allowing the physical fruits of a Miranda
violation to be used as evidence greatly encourages this questionable practice. Such a result should
be unacceptable, particularly given this Court’s claims that the Tennessee Constitution affords this
State’s citizens even greater protection of individual liberties than is guaranteed by the federal
Constitution.

         For the foregoing reasons, I would hold that physical evidence which is discovered as a direct
result of a Miranda violation should be suppressed. The majority’s decision to allow such evidence
fails to further the objectives upon which the Miranda decision was based, and it fails to deter police
violations of the accused’s Miranda rights. Accordingly, I dissent.



                                                       ___________________________________
                                                       ADOLPHO A. BIRCH, JR., JUSTICE




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