                   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     Hon. R. Lee Moore, Jr., Judge



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



The primary issue in this case is whether the appellee was subjected to custodial interrogation in
violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966), when officers questioned
him in response to his volunteered, but unwarned, statements. The Dyer County Circuit Court found
that although the appellee was placed in custody, his statements to the police as to the location of
stolen property were spontaneous, voluntary, and not the result of interrogation. The appellee then
entered a conditional guilty plea, reserving for appeal the question of whether he was subjected to
custodial interrogation. The Court of Criminal Appeals reversed, finding that the greater weight of
the evidence established that the appellee’s statements were a result of interrogation, and it
suppressed the appellee’s statements and the physical evidence derived from his statements. The
State then requested permission to appeal to this Court on the issue of whether the appellee was
subjected to custodial interrogation in violation of Miranda. We agree with the intermediate court
that the appellee was placed in custody and subjected to interrogation, but we decline to suppress the
physical evidence recovered by the officers absent any evidence that his statements were the product
of actual coercion. Because the appellee’s plea was made with the expectation that his statements
were admissible as evidence, we remand this case to the Dyer County Circuit Court to give the
appellee the opportunity to withdraw his plea should he so desire.

    Tenn. R. App. P. 11 Application for Permission to Appeal; Judgment of the Court of
          Criminal Appeals Affirmed in Part, Reversed in Part; Case Remanded

WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and
FRANK F. DROWOTA , III, and JANICE M. HOLDER, JJ., joined. ADOLPHO A. BIRCH, JR., J., filed a
concurring/dissenting opinion.

Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; and Mark
E. Davidson, Assistant Attorney General, Nashville, Tennessee, for the appellant, State of
Tennessee.
Charles S. Kelly, Dyersburg, Tennessee, for the appellee, Timothy Walton.

                                                    OPINION

                                        FACTUAL BACKGROUND

        On May 22, 1997, two federal postal inspectors and three officers with the Dyer County
Sheriff’s Department went to the home of the appellee, Timothy Walton, to discuss recent post-office
burglaries in Finley, Tennessee. The inspectors apparently believed the appellee either participated
in the burglaries or otherwise possessed relevant information. Upon arriving at the appellee’s
residence in three separate police cars, both postal inspectors and two of the officers approached the
appellee, who was on his porch. The third officer, Officer Burns, then went behind the trailer,
ostensibly to “secure the rear of the house for the officer’s safety.” While in the back yard, Burns
noticed a path leading from the trailer into the woods, and following it, he discovered a small
clearing containing about ten or fifteen marijuana plants. Burns also discovered several propane
heaters located not far from the appellee’s property.

        Officer Burns returned to the trailer and notified the other officers and the postal inspectors
of his discovery, and one of the officers and both postal inspectors went to inspect the plants and
heaters. The appellee, who denied ownership of the plants or heaters, remained near the trailer with
Officer Johnson, “talking with him.” At some point while the other officers were photographing the
scene and “recovering [the] evidence,” Johnson requested that the appellee accompany the officers
and the postal inspectors to the sheriff’s department to further discuss the Finley post-office
burglaries. The appellee agreed to go, and although the officers informed him that he was not under
arrest for the marijuana or for any other crime, Johnson handcuffed the appellee and placed him in
the back of Officer McCreight’s unmarked patrol car. Apparently, the purpose of handcuffing the
appellee was for the officers’ security, as the patrol car was not equipped with a security cage.

        Although the record is unclear as to precisely when the statements were made, at some point
the appellee mentioned the name of a Charles Thompson, who apparently informed the police of the
appellee’s role in the post-office burglaries, and said “I know what lies and things that [Thompson
has been] telling on me. And I’ve got some information where we can get him.”1 About the time
that the parties prepared to go back to the sheriff’s department, the appellee claimed to know the
location of several stolen items that Thompson had given him “from some other places.” Upon
hearing this, Johnson then asked the appellee whether he could show the property to the officers, and
the appellee responded, “Yes, I’ll take you to it right now.”

        Once in the patrol car with Officers Johnson and McCreight, the appellee gave the officers
directions to a point along a public road where a piece of plastic had been tied to a barbed wire fence.


         1
            According to the testimony at the suppression hearing, none of the officers ever told the appellee that
Thompson informed the police of the appellee’s role in the burglaries. The State, in its brief before this Court, twice
conced es that Tho mpson w as the uniden tified police info rmant.

                                                         -2-
The appellee told the officers to stop, and the officers allowed him, with his handcuffs still on, to get
out of the car and venture about thirty feet down into a ravine. The appellee returned a few minutes
later carrying a plastic garbage bag containing a computer, a monitor, and a keyboard. The officers,
who later testified that they had no knowledge of a stolen computer before the appellee brought it
to them, placed the items in the trunk of the patrol car.

        At this point, the appellee then told the officers that he knew where more property was
located, and he gave the officers directions to his parents’ house. Once they arrived at the house,
Johnson asked, “Which way do we go from here?” The appellee responded, “Just follow me,” and
he took the officers into a barn where, with his handcuffs still on, he started to remove some
floorboards. Johnson asked him to stop for a moment while McCreight took some pictures of the
scene. When the appellee was permitted to resume, he uncovered a rifle wrapped in a pair of blue
coveralls. After first holding the wrapped rifle in the air so that McCreight could take another
picture, the appellee handed the rifle to Officer Johnson, who recognized it as one reported stolen
from a residence in Finley. Knowing that the stolen rifle also had a scope, Johnson then asked the
appellee whether “there was anything else to go with [the rifle],” to which the appellee responded
that the scope to the rifle was back at his house.

        The trio then returned to the appellee’s residence, and the appellee invited the officers into
his house and back to his bedroom. With the handcuffs still on, the appellee went to his bedroom
closet, from which he produced the rifle scope for the officers. Apparently without any other
prodding, he also produced from the closet several electric heaters and a step ladder, all items that
the police later determined were stolen from the Dyersburg Warehouse. The officers then proceeded
to take the appellee and all of the property back to the police station. As they were leaving, Officer
Johnson told the appellee’s wife that the appellee was not under arrest.

        Once at the police station, the officers informed the appellee for the first time of his right to
remain silent and of his right to have an attorney present. Despite the fact that Officer McCreight
was aware that the appellee was illiterate, McCreight also requested that the appellee sign and date
a form labeled “Admonition and Waiver,” which contained a written statement of his Miranda rights
and a waiver of those rights. After signing the form, the appellee gave a statement that detailed the
dealings of Charles Thompson and another individual, Billy McNeely, in obtaining the stolen
property. According to Officer Johnson, though, the appellee never stated that “he had anything to
with [this] at all.”

       On August 11, 1997, the Dyer County Grand Jury returned a four-count indictment against
the appellee, charging him with two counts of theft over five hundred dollars, one count of burglary,
and one count of aggravated burglary. Two months later, the appellee filed a motion to suppress any
statements and evidence resulting from the failure of the officers to inform the appellee of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). A hearing on the motion was held on December
18, 1997, during which the State introduced the testimony of Officers Burns, McCreight, and
Johnson. The State argued that no Miranda warnings were needed in this case because the appellee
was never placed in actual custody and because the appellee had spontaneously volunteered all of


                                                  -3-
the information to the police without first having been questioned. Although the appellee introduced
no proof himself, he argued that the police “intimidated, urged, coaxed, coerced, questioned, and
interrogated” him into revealing the location of other stolen property, and that notwithstanding the
officers’ testimony, it was “inconceivable that the officers . . . did not ask any questions whatsoever.”
His counsel maintained that his incriminating statements were neither voluntary nor spontaneous.

       On January 5, 1998, the trial court issued a “Memorandum Opinion and Order on Motion of
Defendant to Suppress,” denying the appellee’s motion. The court disagreed with the State that the
appellee was not placed in custody, because “[v]iewing this matter under the totality of the
circumstances, . . . a reasonable person in the suspect’s position would have considered himself
deprived of freedom of movement to a degree associated with a formal arrest.” However, the court
found no evidence that the appellee was ever subjected to interrogation while he was in custody. As
the court stated in its Memorandum Opinion,

        [t]he only testimony available to the court for consideration is the testimony of the
        three officers mentioned above. . . . Officer McCreight and Investigator Johnson
        testified that there was no interrogation and that all of the information given by the
        defendant was spontaneous and voluntary and not elicited as a result of any
        interrogation or suggestion by either officer.               Consequently, although
        the . . . defendant was in custody at the time the information was obtained, . . . the
        information was given voluntarily by the defendant and not in response to
        interrogation by either officer. The need for formal Miranda warnings presumes that
        the statements are elicited through interrogation or questioning.

On February 6, 1998, the appellee entered a conditional guilty plea to the burglary and aggravated
burglary counts of the indictments, reserving for appeal a certified question of law regarding the
court’s denial of his motion to suppress. The trial court then sentenced the appellee to three years
imprisonment for the burglary conviction and to four years imprisonment for the aggravated burglary
conviction, both sentences to be served concurrently in the Department of Correction.

         The Court of Criminal Appeals reversed the decision of the trial court. Although the
intermediate court agreed that the appellee was placed in custody, it also found that “[t]he greater
weight of the evidence does not support the conclusions made by the trial court that the statements
were admissible because they were spontaneously made.” The court stated that “[w]hile the
statements may have been voluntary, [they] were not made by the defendant with the full knowledge
of his rights,” and that “the ‘coercive nature’ of the arrest produced the incriminating information.”
The Court of Criminal Appeals then suppressed all of the evidence against the appellee and
dismissed the charges.

       The State then filed an application for permission to appeal before this Court on the sole issue
of whether, as a matter of law, the appellee was subjected to interrogation within the meaning of




                                                  -4-
Miranda v. Arizona. We granted the State’s application,2 and we agree with the Court of Criminal
Appeals that the appellee was placed in custody and subjected to interrogation. We also find,
however, that while any statements made by the appellee in response to interrogation are
automatically suppressed, the physical evidence recovered by the officers is properly admissible
absent any evidence that the appellee’s statements were the product of actual coercion.

                                  STANDARD OF APPELLATE REVIEW

         This case involves a review of the trial court’s findings of fact and conclusions of law in
denying a motion to suppress evidence. Because issues of whether a defendant was placed in
custody, interrogated, or voluntarily gave a confession are primarily issues of fact, see State v.
Morris, 24 S.W.3d 788, 805 (Tenn. 2000); State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996);
Childs v. State, 584 S.W.2d 783, 786-87 (Tenn. 1979), we review these factual determinations by
the trial court according to the standard set forth in State v. Odom, 928 S.W.2d 18 (Tenn. 1996).
Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld unless
the evidence preponderates otherwise.” Odom, 928 S.W.2d at 23.3 Questions about witness
credibility and “resolution of conflicts in the evidence are matters entrusted to the trial judge,” id.,
and the “[t]estimony presented at trial may be considered by an appellate court in deciding the
propriety of the trial court’s ruling on a motion to suppress.” State v. Perry, 13 S.W.3d 724, 737
(Tenn. Crim. App. 1999). Our review of a trial court’s application of law to the facts, however, is
conducted under a de novo standard of review. See State v. Crutcher, 989 S.W.2d 295, 299 (Tenn.
1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).

                                      CUSTODIAL INTERROGATION

        The issues in this case involve the constitutional protection against compelled self-
incrimination, which “is protected by both the federal and state constitutions.” State v. Blackstock,
19 S.W.3d 200, 207 (Tenn. 2000). The Self-Incrimination Clause of the Fifth Amendment to the
United States Constitution, made applicable to the states by Mallory v. Hogan, 378 U.S. 1, 6 (1964),
provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against
himself.” Our state constitution likewise contains a related provision in Article I, section 9, which
guarantees that “in all criminal prosecutions, the accused . . . shall not be compelled to give evidence
against himself.” Although “we have traditionally interpreted article I, [section] 9 to be no broader
than the Fifth Amendment,” State v. Martin, 950 S.W.2d 20, 23 (Tenn. 1997), one “significant
difference between these two provisions is that the test of voluntariness for confessions under Article


         2
           Oral argument was heard in this case on November 16, 2000 in Jackson, Madison County, Tennessee, as part
of this Court’s S .C.A.L.E.S . (Supreme Court Advancing Legal Education for Students) pro ject.

         3
            We no te that some c ases from the intermediate court still refer to the standard in place prior to Odom for
reviewing a trial court’s finding s of fact at a supp ression hear ing. See, e.g., State v. Green, 995 S.W.2d 591 , 599 (Tenn.
Crim. App. 1998) (“The findings of fact of the trial court on issues concerning the making of a custodial statement are
binding upon appellate review if there is any evidence in the record to support them.”). To be clear, the standard of
appellate review for findings of fact at a suppression hearing is that articulated by this Court in Odom.

                                                             -5-
I, [section] 9 is broader and more protective of individual rights than the test of voluntariness under
the Fifth Amendment,” State v. Crump, 834 S.W.2d 265, 268 (Tenn. 1992) (citing State v. Smith,
834 S.W.2d 915 (Tenn. 1992)).

        To help insure the protections of the Fifth Amendment in the criminal process, the United
States Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 444 (1966), that “the prosecution
may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation
of the defendant unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.” As part of these safeguards, the police are required to inform
persons being questioned while in custody of the following rights: (1) that they have the right to
remain silent; (2) that any statement made may be used as evidence against them; (3) that they have
the right to the presence of an attorney during questioning; and (4) that if they cannot afford an
attorney, one will be appointed for them prior to questioning, if so desired. See id. at 444; see also
State v. Bush, 942 S.W.2d 489, 499 (Tenn. 1997). As the Supreme Court recently re-emphasized,
“Miranda and its progeny . . . govern the admissibility of statements made during custodial
interrogation in both state and federal courts.” Dickerson v. United States, 530 U.S. 428, __ (2000).

        The requirements of Miranda “must be strictly enforced, but only in those situations in which
the concerns that motivated the decision are implicated.” State v. Goss, 995 S.W.2d 617, 629 (Tenn.
Crim. App. 1998) (citing Illinois v. Perkins, 496 U.S. 294, 296 (1990)). Of course, Miranda
warnings are not required under every circumstance in which police officers come into contact with
citizens. Rather, because “[t]he underpinnings of Miranda are to dissipate the compulsion inherent
in custodial interrogations, to prevent coerced self-incrimination, and to prevent relevant defendant
ignorance,” see State v. Callahan, 979 S.W.2d 577, 582 (Tenn. 1998), the requirements of Miranda
come into play only when the defendant is in custody and is subjected to questioning or its functional
equivalent, see Rhode Island v. Innis, 446 U.S. 291 (1980). Absent either one of these prerequisites,
the requirements of Miranda are not implicated.

        With regard to the issue of custody, the Miranda Court defined this requirement as when the
defendant is placed under formal arrest or is “otherwise deprived of his freedom of action in any
significant way.” 384 U.S. at 444; see also Stansbury v. California, 511 U.S. 318, 322 (1994)
(“[T]he ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.”). This Court has expanded this definition
to mean “under the totality of the circumstances, [whether] a reasonable person in the suspect’s
position would consider himself or herself deprived of freedom of movement to a degree associated
with a formal arrest.” State v. Anderson, 937 S.W.2d 851, 855 (Tenn. 1996). To aid in determining
whether a reasonable person would consider himself or herself in custody, this Court considers a
variety of factors, including the following:

       the time and location of the interrogation; the duration and character of the
       questioning; the officer’s tone of voice and general demeanor; the suspect’s method
       of transportation to the place of questioning; the number of police officers present;
       any limitation on movement or other form of restraint imposed on the suspect during


                                                 -6-
         the interrogation; any interactions between the officer and the suspect, including the
         words spoken by the officer to the suspect, and the suspect’s verbal or nonverbal
         responses; the extent to which the suspect is confronted with the law enforcement
         officer’s suspicions of guilt or evidence of guilt; and finally, the extent to which the
         suspect is made aware that he or she is free to refrain from answering questions or
         to end the interview at will.

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

        In this case, the State concedes, and we agree, that the lower courts were correct in finding
that the appellee was “in custody” for Miranda purposes. We first note that the appellee was
confined in the backseat of a patrol car with two other officers present. Cf. State v. Preston, 411
A.2d 402, 405 (Me. 1980) (finding custody when defendant was questioned alone in an unmarked
police car by two other officers). Second, we note that while the appellee voluntarily agreed to go
to the police station with the officers, the officers nevertheless handcuffed the appellee before he got
into the car, and he remained handcuffed during the entire afternoon as the officers drove around the
county. Although one of the officers testified that the handcuffs were used only for security purposes
while the appellee was in the patrol car, this conclusion is not credible given that the handcuffs were
not removed even when the appellee was out of the car searching and digging for stolen items.4
Viewing this matter in the totality of the circumstances, therefore, we conclude that a reasonable
person in the appellee’s position would have considered himself or herself deprived of freedom of
movement to a degree associated with formal arrest.

         The next issue in this case is whether the appellee was subjected to interrogation while he
was in custody. Although the Miranda Court defined interrogation as “questioning initiated by law
enforcement officers,” 384 U.S. at 444, the Supreme Court has since made clear that interrogation
is not limited to express questioning by officers. In Rhode Island v. Innis, 446 U.S. 291, 301 (1980),
the Court stated that interrogation “refers not only express questioning, but also to any words or
actions on the part of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit incriminating information.” Included within this
definition is any “practice that the police should know is likely to evoke an incriminating response
from a suspect.” Id.

       The present case is unlike those usually applying the Innis rationale, however, because it does
not involve subtle police tactics designed to elicit incriminating responses; rather, it involves direct,
express questioning of the appellee by police officers. The rub in this case, though, is that the




         4
            We believe that this crucial fact distinguishes this case from our holding in Childs v. State , 584 S.W.2d 783
(Tenn. 1979), in which we found that a defendant was not questioned while “in custody,” even though he was questioned
by officers while he was voluntarily accompanying police officers to the station in the back of a police car. Unlike the
present case, though, the Childs defendan t had volunta rily visited the police station previously on several occasions, and
he was not ha ndcuffed d uring this particu lar journey.

                                                            -7-
questions by the officers were follow-up questions to the defendant’s initial voluntary statements.5
The genuine issue in this case, therefore, is whether a defendant is subjected to interrogation when
he or she initially volunteers a statement to police officers and is then asked follow-up questions by
the officers concerning that initial voluntary statement.

        “The bare fact of custody may not in every instance require a warning even when the suspect
is aware that he is speaking to an official . . . .” Illinois v. Perkins, 496 U.S. 292, 299 (1990) (dicta).
Nevertheless, because its proscription on express questioning without the Miranda safeguards is
unqualified, the Innis definition of interrogation appears, upon first reading, to exclude from
evidence all answers to express questioning while the defendant is in custody. No case has ever
extended the holding of Innis this far, however, and several types of express questions have been
permitted by state and federal courts when (1) the questions do not infringe upon “the underpinnings
of Miranda,” or (2) those underpinnings are outweighed by other concerns. For example, officers
are permitted to ask questions that reveal non-testimonial information, see, e.g., Pennsylvania v.
Muniz, 469 U.S. 582, 591-92 (1990) (permitting questions that were designed to reveal non-
testimonial evidence such as slurred speech); United States v. Dionisio, 410 U.S. 1 (1973)
(permitting voice exemplars), and officers may ask questions relevant to routine booking procedures
at the police station, Muniz, 569 U.S. at 601-02; see also State v. Williams, 623 S.W.2d 118, 121
(Tenn. Crim. App. 1981) (stating that Miranda does not apply to routine questions such as “the
subject’s name, address, date of birth, height, weight, location of arrest and charge”).6 In addition,
the Supreme Court has upheld the questioning of a defendant when the questioning was necessary
to prevent a threat to public safety. See New York v. Quarles, 467 U.S. 649 (1984).

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


         5
           Although it see ms exceed ingly unlikely that the appellee suddenly volunteered to share his knowledge of the
whereab outs of stolen property without any prodding or questioning by the officers, there is no proof in the record to the
contrary. The only w itnesses at the sup pression he aring were the police officer s, who all te stified that the appellee
volunteered the information on his own, without any “carrot” being given or offered by the police. With no proof or
evidence to the contrary, the trial court’s finding that the appellee’s initial statements were voluntary is certainly in accord
with the weight o f the evidence , and as such, w e are bou nd by this finding on appe al.

         6
             The Muniz Court stated that asking questions d uring routine b ooking p rocedur es did in fact am ount to
custodial interrogation. 496 U.S. at 6 0 1 ( “W e disagree with th e Comm onwealth’s co ntention that O fficer Hoster man’s
first seven questions regarding Muniz’s name, address, height, weight, eye color, date of birth, and current age do not
qualify as custodial interrogation as we defined the term in Innis, merely bec ause the que stions were no t intended to elicit
information for investigatory purposes.”). However, so long as the questions were not designed to elicit incriminating
information, id. at 602 n.1 4, the answers to those questions were admissible under the “routine booking question”
exception, “which exempts from Miranda’s coverage questions to secure the ‘bio graphical d ata necessar y to comp lete
booking or pretrial services,’” id. at 601.
          In State v. Cobb, 539 P.2d 1140 (Ore. Ct. App. 1975), the Oregon Court of Appeals recognized that while a
question may be of a “routine and relatively a dministrative n ature” in one case, the very sa me questio n could co nstitute
“interrogation” in another case. The key difference for that court was whether the police action was either intended or
reasonab ly likely to elicit incriminating information. Id. at 1143 (citing McCo rmick, Evidence § 152, at 327, 329 (2d
ed. 1972)).

                                                              -8-
reason to suspect that the answers to the follow-up questions are likely to be incriminating. Some
courts addressing this issue have held that the answers to follow-up questions are merely a
continuation of the defendant’s initial voluntary statement. For example, the Nebraska Court of
Appeals has held that because follow-up questions by officers to a defendant’s voluntary statement
are not prohibited by Rhode Island v. Innis, such questions are permitted, and the answers are
admissible. See State v. McDowell, 488 N.W.2d 593, 597-98 (Neb. Ct. App. 1992) (“However, the
record does show that after [the defendant] made a statement to Murtaugh, Brady then asked [the
defendant] if there was something he wanted to say. Innis does not prohibit such follow[-]up
questions. Therefore, [the defendant’s] answer to Brady’s question was a continuation of his
volunteered statement, and the officers were not required to advise him of his Miranda rights at that
time.”).

        The greater weight of authority, however, seems to suggest that officers should inform the
suspect of his or her Miranda rights before asking follow-up questions to a voluntary statement when
the officers “reasonably suspect” that incriminating information will be forthcoming. One court
addressing this issue has stated that

       a person who volunteers facially exculpatory information to the police and whom the
       police do not have reason to consider a suspect, may, without being advised of his
       Miranda rights, be asked follow-up questions so long as those questions are designed
       to clarify the facially exculpatory prior statement. However, once the police have
       reason to doubt the information, and thus to believe that any further questions would
       be “reasonably likely to elicit an incriminating response,” they must administer the
       Miranda warnings before [asking] any follow-up questioning.

Merriweather v. State, 629 So.2d 77, 83-84 (Ala. Crim. App. 1993) (citations omitted) (emphasis
added); see also United States v. Gonzalez, 688 F. Supp. 658, 662 (D.D.C. 1988), remanded on other
grounds, 875 F.2d 875 (D.C. Cir. 1989) (“Miranda does not apply to unsolicited, spontaneous and
voluntary statements, not made in response to interrogation, although officers must give warnings
before any follow-up questioning is resumed.”).

        Although Innis does not directly compel such a standard, we believe that the second approach
is most in line with the underpinnings of Miranda. We acknowledge that, unlike the present case
before this Court, many courts addressing this issue have done so in situations in which the
defendant first asserted his or her right to remain silent and then later volunteered to speak to the
police. Even so, the rationale adopted by those cases seems particularly appropriate when, as in this
case, the defendant never had the benefit of the warnings in the first instance. Accordingly, we
conclude that police officers are permitted to ask follow-up questions to a defendant’s voluntary
statement without first having to give Miranda warnings, unless the officer has reason to believe that
the follow-up questions are “reasonably likely to elicit an incriminating response.” In such a case,
Miranda warnings must be given before any answers to the follow-up questions are properly
admissible. In this manner, courts can be assured that the resulting answers are truly voluntary and
free from “relevant defendant ignorance.” Cf. Callahan, 979 S.W.2d at 582; see also Wayne R.


                                                 -9-
LaFave, et al., Criminal Procedure § 6.7(d), at 566-57 (2d ed. 1999) (“The better view, however, is
that the part of the defendant’s statement given after the follow-up questions is volunteered only if
the questions are neutral attempts to clarify what has already been said rather than apparent attempts
to expand the scope of the statement already made.”).

        Turning to the facts of this case, Officer Johnson clearly had reason to believe that his follow-
up questions to the appellee’s statements were “reasonably likely to elicit an incriminating response.”
The officer had every reason to believe that the answers to his questions would lead to the recovery
of stolen property, and from all indications in the record, this was precisely the officer’s hope and
expectation.7 Cf. Innis, 446 U.S. at 301 n.7 (stating that the intent of the officer “may well have a
bearing on whether the police should have known that their words or actions were reasonably likely
to evoke an incriminating response”). Indeed, it is difficult to conceive of any response by the
appellee that would not have been incriminating, and as such, we find that the officer first had a duty
to inform the appellee of his rights before asking any follow-up questions. Accordingly, we agree
with the Court of Criminal Appeals that the appellee was subjected to custodial interrogation in a
violation of the requirements of Miranda v. Arizona.

                                       SUPPRESSION OF EVIDENCE

         Because we have found that the appellee in this case was subjected to custodial interrogation
without first having been informed of his rights under Miranda v. Arizona, it is axiomatic that all
statements made by the appellee in response to that interrogation are inadmissible as evidence. See,
e.g., Miranda, 384 U.S. at 466 (“The warnings required and the waiver necessary in accordance with
our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility
of any statement made by a defendant.”); State v. Bush, 942 S.W.2d 489, 499 (Tenn. 1997).
However, the evidence of guilt in this case consists not only of statements made by the appellee, but
also of physical evidence obtained from his “custodial expedition for incriminating evidence.”8 In
vacating the appellee’s plea and dismissing the charges, the Court of Criminal Appeals suppressed
all of the evidence in this case, including the recovered property, finding that the failure to inform
the appellee of his rights, combined with the “particular nature of [the officers’] interrogation,”



         7
             The fact that the location of the stolen property was derived from the express questioning of Officer Johnson
distinguishes this case from State v. Hurley, 876 S.W.2d 57, 66 (Tenn. 1993), in which the defendant called the detective
to his cell to give a full confession. The detective in Hurley testified that, upon receiving the defendant’s call, he had
no intention of interrogating the defendant but went to the cell only to hear what the defendant had to say. Moreover,
with the exception of one inquiry as to why the defendant was being “set up” by others, the detective in Hurley did not
question the defenda nt at all, but rather only listened to his voluntary statements. This Court held that because the
defendant initiated the contact with the detective and beca use his voluntary self-serving statements were not in response
to any questioning on the part of the detective, the defendant’s statements were not the product of custodial interrogation
and were th erefore ad missible. Hurley, 876 S.W.2d at 66.

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

                                                           -10-
required suppression of the recovered physical evidence. We disagree, respectfully, that the record
as developed in this case compels such a result.

                                                    FEDERAL LAW

        The United States Supreme Court has not directly addressed whether physical evidence
obtained from a violation of Miranda is admissible.9 Absent a finding that a statement was
involuntary, we note that Miranda’s exclusion of incriminating statements has never been absolute.
See, e.g., Harris v. New York, 401 U.S. 222, 226 (1971) (permitting use of unwarned, voluntary
statements to impeach a witness). Furthermore, as several cases make clear, the Fifth amendment
applies only to testimonial or communicative evidence, see, e.g., Schmerber v. California, 384 U.S.
757 (1966); United States v. Dionisio, 410 U.S. 1 (1973), and as such, all non-testimonial evidence
would seem to fall outside the scope of the “fruit of the poisonous tree” doctrine as applied to the
Fifth Amendment.10 Nevertheless, as the Supreme Court acknowledged in Michigan v. Tucker, 417
U.S. 433 (1974), the exclusionary rule may be applied in the Fifth Amendment context given the
proper case. See 417 U.S. at 447.

        While not addressing the precise issue before us today, the Supreme Court has had occasion
to address whether some fruits of a Miranda violation need to be suppressed. For example, in
Tucker, a defendant sought to suppress the testimony of a state witness whose identity was disclosed
through unwarned statements made by the defendant during a custodial interrogation. In permitting
the witness’s testimony, the Court held that unwarned questioning of the defendant “did not abridge

         9
            Such a result was suggested b y Miranda itself, although Justice White’s dissenting opinion made clear that
the Court was leaving the issue for consideration at a later date. Compare Miranda, 384 U.S. at 479 (“But unless and
until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of
interrogation can be use d against him.” ), with Miranda, 384 U.S. at 454 (White, J., dissenting) (“Toda y’s decision leaves
open such questions as . . . wh ether non-testim onial eviden ce introduc ed at trial is the fruit of statements made during
a prohibited interrogation .”); see also Patterson v. United States, 485 U .S. 922, 9 22-24 (1 988) (W hite and Bre nnan, JJ.,
dissenting from a denial of certiorari) (n oting that Miranda, Michigan v. Tucker, 417 U.S. 433 (1974), and Oregon v.
Elstad, 470 U.S. 298 (1985), have all left open the question of the “admissibility of physical evidence yielded from a
Miranda violation”).

         10
              In Schmerber v. California , the Court first hinte d that only testimo nial evidenc e may be ex cluded b y a
violation of the Fifth Amendment. In holding that the blood test evidence at issue was “not inadmissible” on privilege
grounds, the Court reasoned that “although an incriminatin g product of compulsion, [it] was neither petitioner’s testimony
nor evidence relating to some communicative act or writing by the petitioner . . . .” 384 U.S. at 765. Having decided
Miranda only seven d ays earlier, the C ourt then no ted that
          [t]his conclusion would no t necessarily go vern had the State tried to show that the accused had
          incriminated himself when told that he would have to be tested. Such incriminating evidence may be
          an unavoidable by-product of the compulsion to take the test, especially for an individual who fears
          the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such
          attempts to discover e vidence, the State may have to forgo the advan tage of an y testimon ial produ cts
          of administering the test—products which would fall within the privilege.
Id. at 765 n.9 (emp hasis added). As this statement dem onstrates, the Schmerber Court believed that while a Miranda
violation would render any resulting statements inadmissible, the non-testimonial evidence, such as the blood tests, could
still be used as evidence of guilt notwithstanding the Miranda violation.

                                                            -11-
[the defendant’s] constitutional privilege against compulsory self-incrimination, but departed only
from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege.”
Tucker, 417 U.S. at 446. In answering “how sweeping the judicially imposed consequences of this
disregard shall be,” the Court declined to suppress the fruit of the violation, or the testimony of the
State’s witness, in the absence of a need to deter police conduct or a need to protect against
unreliable evidence resulting from actual coercion. Id. at 447-49.

        A similar rationale was later used in Oregon v. Elstad, 470 U.S. 298 (1985), in which the
Court permitted a second voluntary confession to be used as evidence after the defendant’s first
voluntary confession was obtained in violation of Miranda. The Elstad Court stated that while the
“fruit of the poisonous tree” doctrine called for suppression of evidence upon a finding of a Fourth
Amendment violation, the same result did not necessarily follow when officers erred “in
administering the prophylactic Miranda procedures.” Elstad, 470 U.S. at 309. Unless a court finds
“any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise
his free will,” a technical violation of Miranda “should not breed the same irremediable
consequences as police infringement of the Fifth Amendment itself.”11 Id. Finding that the first
confession was given voluntarily and without any actual coercion, the Court permitted the second
confession into evidence, stating that “little justification exists for permitting the highly probative
evidence of a voluntary confession to be irretrievably lost to the factfinder.” Id. at 312. Although
the Elstad Court specifically declined to reach the question of whether its rationale would admit non-
testimonial evidence obtained after a violation of Miranda, several lower federal courts have
permitted such evidence in the absence of actual coercion.12

         Although the Tucker and Elstad rationales have been followed by other courts, a recent
decision from the United States Supreme Court has cast some doubt as to the true nature of
Miranda’s procedures. In Dickerson v. United States, 530 U.S. 428 (2000), the United States
Supreme Court held that Miranda was a constitutional decision that could not be legislatively
overruled by Congress, and at least one court has asserted that this holding significantly undermines
the rationales of Tucker and Elstad to the extent that these cases would permit non-testimonial fruits
of a Miranda violation. In People v. Trujillo, 2000 WL 1862933 (Colo. Ct. App. Dec. 21, 2000), the


         11
            “Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda
presumption, the ‘primary criterion of admissibility [remains] the “old” due pro cess voluntariness test.’” Elstad, 470 U.S.
at 307-08 (quoting Ste phen J. Sc hulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 877 (1981 )).

         12
             See, e.g., United States v. Crowder, 62 F.3d 782, 78 6 (6th Cir. 1995) (stating that “non-testimonial physical
evidence, such as the shotgun, discovered due to an unwarned statement is admissible if the unwarned statement was
voluntary”); United States v. Mendez, 27 F.3d 126, 130 (5th Cir. 1994) (“The derivative evidence rule operates [in the
Miranda context] only w hen an actua l constitutional vio lation occur s, as where a su spect confe sses in respo nse to
coercion.”); United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir. 1990) (admitting deportation record
obtained in violation of Miranda absent coercion or a denial of due process); United States v. Bengivenga, 845 F.2d 593,
600-01 (5th Cir. 1988) (admitting bus ticket and baggage claim stubs obtained from Miranda violation); United States
v. Sangineto-Miranda, 859 F.2d 1501, 1514-19 (6th Cir. 1988) (admitting contraband discovered as a result of a Miranda
violation); United States v. Morales, 788 F.2d 883, 886 (2d C ir. 1986) (perm itting statement obtained in violation of
Miranda to be used in establishing p robable cause to arre st).

                                                           -12-
Colorado Court of Appeals rejected an argument that the exclusionary rule did not apply in the Fifth
Amendment context and found that Dickerson essentially elevated Miranda’s procedures to that of
constitutional requirements.13

        After carefully considering Dickerson, we disagree that its rationale now compels application
of the exclusionary rule to non-testimonial evidence for a failure to give Miranda warnings. While
we acknowledge that the rationales of Tucker and Elstad depended upon the fact that a violation “in
administering the prophylactic Miranda procedures” was not, without more, a violation of the Fifth
Amendment itself, Dickerson did not hold otherwise. Importantly, Dickerson did not overrule
Tucker or Elstad, nor did it repudiate the reasoning adopted by these cases. In fact, Dickerson even
approved of Elstad’s language concerning Miranda’s “prophylactic” procedures as recognition of
“the fact that unreasonable searches under the Fourth Amendment are different from unwarned
interrogation under the Fifth Amendment.” Id. at __. With its express acknowledgment that the
exclusionary rule operates differently under the Fifth Amendment, Dickerson is more properly read
to reaffirm that Miranda’s specific procedures are still prophylactic in nature.

        The reasoning adopted by the Colorado Court of Appeals in Trujillo seems to closely follow
Justice Scalia’s dissent in Dickerson, wherein the view was expressed that Miranda’s requirements
are now the only measures that can satisfy constitutional concerns. Certainly if this were true, then
one would be compelled to conclude that a violation of Miranda is also now a violation of the Fifth
Amendment. We disagree, however, that such a reading naturally follows from the majority’s
decision, if only because this reading is contradicted by the language of the opinion itself. Not only
did the majority plainly refuse to extend its holding that far,14 but the majority also limited its
decision to holding that the “totality of the circumstances” test, without more, is inadequate to
protect the privilege against self-incrimination.15 Indeed, when read in this context, Dickerson
practically does little more than did Miranda itself, which, in holding that the “totality of the
circumstances” test was insufficient to safeguard Fifth Amendment protections, was clear that the
constitution did not require any particular set of procedures. See Miranda, 384 U.S. at 467 (“We


         13
             More sp ecifically, the Co lorado C ourt of Ap peals dismiss ed the issue stating that
         [t]he People rely on Oregon v. Elstad, 470 U .S. 298 (1 985), in wh ich the Supr eme Co urt held that
         M iranda violations, be ing “proce dural,” did not mand ate applica tion of the “fruit of the poisonous
         tree” analysis set forth in Wong Sun v. United States, 371 U.S. 471 (1963 ). However, in Dickerson
         v. United States, 530 U .S. 428 (2 000), the S upreme C ourt held tha t Miranda announced a
         constitutional, not a procedural rule, and specifically distinguished Oregon v. Elstad, on that basis.
         Accord ingly, we conclude that the “fruit of the poisonous tree” analysis employed in James v. Illino is,
         applies here.

         14
             Dickerson, 530 U.S. at __ (“The dissent argues that it is judicial overreaching for this Court to hold [section]
3501 unconstitutional unless we hold that the Miranda warnings are required by the Constitution, in the sense that nothing
else will suffice to satisfy constitutional requirements. But we need not go farther than Miranda to decide this case.”)
(citation omitted).

         15
             Dickerson, 530 U .S. at __ (“A s discussed a bove, [sec tion] 350 1 reinstates the to tality test as sufficient.
Section 35 01 therefo re cannot b e sustained if Miranda is to remain the la w.”).

                                                           -13-
cannot say that the Constitution necessarily requires adherence to any particular solution for the
inherent compulsions of the interrogation process as it is presently conducted.”).16

         Moreover, merely recognizing that Miranda is a decision of constitutional law does not mean
that a violation of the particular procedures set forth in that decision must also be a violation of the
constitution itself. For example, this Court has long recognized that the Miranda decision is one of
a constitutional nature, as we have repeatedly perceived ourselves to be bound by that decision. See,
e.g., Shannon v. State, 221 Tenn. 412, 420, 427 S.W.2d 26, 29 (1968) (recognizing Miranda as a
constitutional decision and stating that “[l]et it be noted that the concern of this Court is not to favor
a defendant but to see that the scales of justice be in balance between him and the State, which
cannot be if the constitutional guarantees of Miranda can be withheld by its officers”). In so
recognizing, however, we have never viewed the failure to administer the Miranda warnings as an
actual violation of the Fifth Amendment, which would thereby compel suppression of all the fruit
of that violation. Cf. State v. Crump, 834 S.W.2d 265, 270 (Tenn. 1992) (recognizing that the mere
failure to administer warnings, as opposed to a failure to honor invocation of rights, is not itself a
Fifth Amendment violation); State v. Smith, 834 S.W.2d 915, 919-21 (Tenn. 1992) (admitting fruits
of a Miranda violation upon a finding that the defendant’s second confession was “given knowingly
and voluntarily,” and was not the result of “coercive tactics” or efforts “to wear down Smith’s
resistence and overcome his free will”). The majority’s opinion in Dickerson does not now compel
a different result for our cases.

        Prior to Dickerson, the federal courts seem to have largely favored admitting non-testimonial
evidence derived from a violation of Miranda, absent actual coercion of the defendant’s statements.
We do not view Dickerson as now compelling a finding that a failure to administer Miranda
warnings is itself a violation of the Fifth Amendment. We also disagree that Dickerson compels the
conclusion that a violation of Miranda mandates a per se exclusionary rule for all fruits of that
violation. Accordingly, although we acknowledge that this issue has yet to be definitively settled
by the United States Supreme Court, we recognize that the clear trend under the federal constitution
is to admit non-testimonial evidence, so long as the statements revealing the non-testimonial
evidence were not coerced.

                                                  TENNESSEE LAW


         16
             In further recognition that the specific Miranda procedures themselves were not constitutionally required,
the Miranda Court even invited Congress to develop alternative procedures to protect the privilege against self-
incrimination. See 384 U.S. at 490 (“[T]he Constitution does not require any specific code of procedures for protecting
the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their
own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused
persons of their right of silence and in affording a continuous opportunity to exercise it.”). As it is well established that
Congres s is without pow er to define su bstantive co nstitutional rights, see City of Boerne v. Flores, 521 U.S. 507, 519
(1997), the particular wa rnings outlined in Miranda cannot them selves be co terminous w ith the Fifth Ame ndment. W e
believe that the Dickerson Court recognized this crucial fact and limited its opinion ac cordingly by holding simply that
Congress failed to rise to the Miranda Court’s challenge of issuing adequa te safeguard s for the prote ction of the Fifth
Amend ment.

                                                           -14-
        Although this Court has expressly rejected the Tucker and Elstad rationales with regard to
admission of a subsequent confession obtained after an initial unlawful confession, State v. Smith,
834 S.W.2d 915, 921 (Tenn. 1992), the same approach does not necessarily follow under Article I,
section 9 of the Tennessee Constitution when the issue is admission of tangible, non-testimonial
evidence. As is the case with the Fifth Amendment, Article I, section 9 is concerned only with a
defendant’s coerced, self-incriminating statements, and this provision has never been interpreted to
provide a per se exclusion of non-testimonial evidence. See State v. Frasier, 914 S.W.2d 467, 473
(Tenn. 1996) (declining to adopt “a literal interpretation of the term ‘evidence’” in Article I, section
9 by maintaining the traditional Fifth Amendment distinction between testimonial and non-
testimonial evidence); Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979) (“We do not agree that the
Tennessee prohibition against self-incrimination is broader or different in any application thereof
because of the use of the word ‘evidence’ instead of the word ‘witness.’”). Moreover, “[a]bsent
some officially coerced self-accusation,” the privilege against self-incrimination “is not violated by
even the most damning admissions.” State v. Williams, 623 S.W.2d 118, 121 (Tenn. Crim. App.
1981).
        Indeed, courts in this state have permitted the “fruits” of a Miranda violation when the fruit
is not that of a subsequent confession by the defendant. For example, in State v. Tidwell, 775
S.W.2d 379 (Tenn. Crim. App. 1989), the Court of Criminal Appeals admitted the testimony of a
witness whose identity was discovered through unwarned custodial interrogation. In addressing the
defendant’s argument that the testimony of another witness should have been suppressed as fruit of
the violation, the court stated that

         [t]he defendant’s argument confuses the scope of the exclusionary rule in Fourth
         Amendment cases with the exclusionary rule in Fifth Amendment cases. The Fifth
         Amendment exclusionary rule is limited in scope to the exclusion of confessions
         obtained in violation of an accused’s constitutional rights. Evidence derived from an
         illegally obtained confession is admissible notwithstanding the confession was, or
         should have been, suppressed. There is one exception to this rule. If the confession
         from which the evidence was derived was coerced in the due process sense, the
         evidence is not admissible. This exception is not applicable in the case sub judice.

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


         17
              While other cases from the Court of Criminal Appeals hold that witnesses discovered from an illegal
statement should be suppresse d, these case s arise in the con text of a statement made following an illegal arrest in actual
violation of the Fourth Amend ment. See State v. Williams, 784 S.W.2d 660 (Tenn. Crim. App. 19 89); State v. Story,
608 S.W .2d 599 (Tenn. C rim. App. 1 980).

                                                           -15-
        Although this Court has yet to address this issue with regard to non-testimonial evidence
since Miranda, we have previously admitted evidence obtained from an illegal confession, even
though the confession itself was excluded. In Rice v. State, 50 Tenn. (3 Heisk.) 215 (1871), the
prosecutor improperly induced a defendant to reveal the location of stolen money orders, and the
defendant gave a full confession revealing the location of the property. The defendant was then
indicted for larceny and for knowingly receiving stolen goods with the intent to deprive the true
owner thereof. In permitting the physical evidence obtained from the confession, the Court stated
that “although a confession obtained by means of promises or threats cannot be received; yet if, in
consequence of that confession, certain facts tending to establish the guilt of the prisoner, are made
known, evidence of these facts may be received.” Id. at 223. The Rice Court allowed the jury to
consider “the fact of the witness having been directed by the prisoner where to find the goods, and
his having found them accordingly,” though it did not allow “the acknowledgment [through the
confession] of the prisoner having stolen or put them there.” Id. at 224-25.18

         Given these federal and state authorities, we conclude that a per se exclusionary rule, which
would automatically exclude non-testimonial evidence obtained from a technical failure to give
Miranda warnings, is not warranted. Instead, we hold that a defendant may seek suppression of non-
testimonial evidence discovered through his or her unwarned statements only when the statements
are the product of an actual violation of the privilege against self-incrimination, i.e., such as when
actual coercion in obtaining the statement is involved or when the invocation of the right to remain
silent or to have counsel present is not “scrupulously honored.” Cf. State v. Crump, 834 S.W.2d
265, 270 (Tenn. 1992) (holding that a refusal to honor the right to remain silent, “by definition, is
of constitutional magnitude”). In those cases in which the fruit of the violation involves the
defendant’s testimonial or communicative statements, however, the heightened protections of State
v. Smith, 834 S.W.2d 915 (Tenn. 1992), safeguarding the privilege continue to apply with full force
in this state, and our decision today should not be read as diminishing the concerns expressed by
Smith in any way.

        The concurring/dissenting opinion expresses the concern that allowing non-testimonial
evidence represents “a gross incursion upon the letter and spirit of Miranda, and tends to invite open
defiance and disregard of the Miranda doctrine by those bound to respect it . . . .” We are certainly
mindful of this concern, but we disagree that today’s decision will invite open defiance of Miranda.
We reiterate that where law enforcement officers act in actual violation of the federal or state
constitutions, their actions will bring forth heavy consequences—all “fruit” resulting from the
violation, testimonial and non-testimonial together, will not be permitted to be used as evidence.
The judiciary of this state will not tolerate actual police coercion, either physical or psychological,
used to obtain statements from a suspect, and as has been expressed in other areas of the law, it is

         18
             As the concurring/dissenting poignantly explains, to the extent that actual coercion was involved in Rice to
obtain the co nfession, the fruits of that confessio n would b e inadmissib le today. However, the larger point illustrated
by this Court’s decision in Rice is that a per se exclusion o f all fruits of a confession has never been required by the
constitution or laws of this state. To tha t extent, Rice lends great weight to our conclusion that Article I, section
9—which had been the law in Tennessee for three quarte rs of a century p rior to that dec ision, see Tenn. Const. art. XI,
§ 9 (1796)— does not necessarily compel exclusion of physical evidence discovered from an unlawful confession.

                                                          -16-
not unfair “to require that one who deliberately goes perilously close to an area of proscribed conduct
shall take the risk that he may cross the line.” See Boyce Motor Lines v. United States, 342 U.S.
337, 340 (1952). This is the price demanded for jealous protection of constitutional liberties.

         In the absence of a need to deter constitutional violations, however, the demand for such a
heavy-handed remedy is simply not as compelling, and the broad exclusionary rule advocated by the
concurring/dissenting opinion will undoubtably work to penalize even legitimate law enforcement
activity. In the absence of actual coercion, the price of excluding relevant, probative, and reliable
evidence may be proportionally too expensive, especially when the interest of the accused is simply
that of not being compelled to testify against himself.19 Indeed, this view is precisely that expressed
by Justice O’Connor’s concurring-dissenting opinion in New York v. Quarles, 467 U.S. 649 (1984),
wherein she stated that

         [t]o be sure, admission of nontestimonial evidence secured through informal
         custodial interrogation will reduce the incentives to enforce the Miranda code. But
         that fact simply begs the question of how much enforcement is appropriate. . . . The
         Miranda decision quite practically does not express any societal interest in having
         those warning[s] administered for their own sake. Rather, the warnings and waiver
         are only required to ensure that “testimony” used against the accused at trial is
         voluntarily given. Therefore, if the testimonial aspects of the accused’s custodial
         communications are suppressed, the failure to administer the Miranda warnings
         should cease to be of concern. The harm caused by failure to administer Miranda
         warnings relates only to admission of testimonial self-incriminations, and the
         suppression of such incriminations should by itself produce the optimal enforcement
         of the Miranda rule.

New York v. Quarles, 467 U.S. at 668-69 (1984) (O’Connor, J., concurring) (emphasis added)
(footnote and citations omitted); see also Tucker, 417 U.S. at 462 (White, J., concurring) (“The
arguable benefits from excluding such [evidence] by way of possibly deterring police conduct that
might compel admissions are, in my view, far outweighed by the advantages of having relevant and
probative [evidence], not obtained by actual coercion, available at criminal trials to aid in the pursuit
of truth. The same results would not necessarily obtain with respect to the fruits of involuntary
confessions.”).

       The assumption underlying the view of the concurring/dissenting opinion is that law
enforcement officers will forgo the opportunity to gain a valid, voluntary confession merely for the


         19
             In cases invo lving statemen ts following an initial u nlawful confes sion, see State v. Smith, 834 S.W.2d 915,
921 (Tenn. 1992), the interest involved is precisely that of preventing one from being comp elled to testify against himself.
In those types of cases, therefore, the approach advocated by the concurring/ dissenting opinion is a much more practical
remedy because it is designed to further the actual right at issue. As no d efendant is pr ivileged to have non-testimonial
evidence excluded under the Fifth Amendment or Article I, section 9, exclusion of such evidence in the absence o f a
constitutional violation (1) adds very little to the accused’s interest in not being compelled to testify against himself, and
(2) adds significant and unnece ssary barriers to the use of otherwise legitimate law enforce ment practices.

                                                            -17-
sake of obtaining non-testimonial evidence of dubious probative value. As courts have recognized,
however, a confession by a defendant is “like no other evidence,”20 and the sheer power of an
admission of guilt is precisely the reason that we go to extraordinary lengths to ensure that it is
reliable, i.e., voluntarily made without compulsion or coercion, and that it is corroborated by some
other evidence. See State v. Smith, 24 S.W.3d 274, 281 (Tenn. 2000).

        It is difficult to believe that law-enforcement officers would risk exclusion of a confession,
the most probative and powerful evidence of guilt, merely for the possibility of obtaining other
evidence of indeterminate probative value, and practically speaking, we doubt that this would ever
be the case. Indeed, in this state, if the statements leading to the discovery of the physical evidence
are actually coerced in any way, either physically or psychologically, then all of the statements and
physical evidence discovered therefrom will be excluded, and the state may be without any evidence
to prosecute the crime. While we are mindful of the theoretical concerns expressed by the
concurring/dissenting opinion, we believe that the current framework of Miranda as developed by
the courts of this state adequately prevents such concerns from becoming a reality. 21

       Turning to the facts of this case, we see no evidence of coercion by the police, either physical
or psychological, in obtaining the location of the stolen property. The appellee initiated the

         20
             See Arizona v . Fulminante , 499 U .S. 279, 2 96 (199 1); see also Bruton v. United States, 391 U.S. 123, 139-
40 (196 8) (W hite, J., dissenting):
         [T]he defendan t’s own confes sion is prob ably the most probative and damaging evidence that can be
         admitted against him. T hough itself an o ut-of-court statement, it is admitted as reliable evidence
         because it is an admissio n of guilt by the de fendant and constitutes dire ct evidence of the facts to
         which it relates. Even the testimony of an eyewitness may be less reliable than the defendant’s own
         confession. An observer may not correctly perceive, understand, or remember the acts of another, but
         the admissions of a defendant come from the actor himself, the most knowledgeable and
         unimpeac hable sour ce of informa tion about h is past cond uct. Certainly, confessions have profound
         impact on the jury, so much so that we may justifiably doubt its ability to put them out of mind even
         if told to do so.

         21
            The concurring/dissenting opinion minimizes the ability of the courts to determine when coercion has been
used in obtaining state ments from a n accused , and in advo cating its broa d exclusion ary rule, that op inion appa rently
contemplates that no incriminating statement can be the product of a free will. Even Miranda did not accord a
presumption of coercio n such conc lusive weight, a s that opinion recognized that at least some suspects will make
incriminating statements vo luntarily. See 384 U.S. at 478. Moreover, as was recognized by the Supreme Court in Elstad,
         There is a vast difference between the direct consequences flowing from coercion of a confession by
         physical violence o r other delib erate mean s calculated to break the su spect’s will and the uncertain
         consequences of disclosure of a “guilty secret” freely given in response to an unwarned but
         noncoercive question, as in this case. [The] contention that it is impossible to perceive any causal
         distinction between this case and one involving a confession that is coerced by torture is who lly
         unpersuasive. . . . It is difficult to tell with certainty what motivates a suspect to speak. A suspect’s
         confession may be traced to fa ctors as disp arate as “ a prearre st event such as a visit with a minister,”
         or an intervening event such as the exchange of words respondent had with his father. We mu st
         conclude that, absent d eliberately c oercive o r improp er tactics in ob taining th e initial statem ent, the
         mere fact that a suspect has made an unwarned admission does not w arrant a presumption of
         comp ulsion.
470 U.S. at 312-14 (footnote and citations omitted) (emphasis added).

                                                           -18-
conversation of the stolen property, and he voluntarily agreed to show the officers where the property
was located. After recovering the stolen computer from the ravine, the record shows that it was the
appellee who then asked the officers whether he could show them other property. Even while back
at his own house later in the afternoon, the appellee produced several heaters and a step ladder,
apparently on his own volition without any prodding or questioning by the officers. Furthermore,
we can find no threats of prosecution for other offenses, nor can we find any evidence that the
appellee’s actions were “compelled by promises of leniency.” Cf. State v. Smith, 933 S.W.2d 450,
456 (Tenn. 1996) (“The Fifth Amendment does not condemn all promise-induced admissions and
confessions; it condemns only those which are compelled by promises of leniency.”).22 Quite
simply, we see no indication that the officers’ actions represented “an effort to wear down [the
appellee’s] resistance and overcome his free will.” Cf. Smith, 834 S.W.2d at 920.

        We note that the Court of Criminal Appeals reached the opposite conclusion on this issue,
finding that the totality of the circumstances indicated that the appellee was coerced into revealing
the location of the stolen property. In particular, the intermediate court relied heavily upon the fact
that the appellee was in custody and in handcuffs during the entire expedition. Although these facts
are undisputed, we disagree that they alone converted the situation into one that was unduly coercive.
As this Court has recognized, if custody were alone “sufficient to vitiate the voluntariness of a
subsequent confession, an accused could never give a voluntary confession after arrest.” Smith, 834
S.W.2d at 920.23 Moreover, while the Court of Criminal Appeals also found coercion in part from
the failure to administer the Miranda warnings, “[t]he failure of police to administer Miranda
warnings does not mean that the statements received have actually been coerced, but only that courts
will presume that the privilege against compulsory self-incrimination has not been intelligently
exercised.” Elstad, 470 U.S. at 310. Accordingly, viewing the matter within the totality of the
circumstances, we agree with the trial court that no actual coercion was involved in this case, and
we hold that the fruit of the Miranda violation, i.e., the physical property recovered, need not be
suppressed.

                                                     CONCLUSION




         22
             There is a hint throughou t the appellee ’s pleadings in the trial court that the police had information of the
stolen property a nd that the po lice agreed not to pros ecute the ap pellee if he wo uld help gath er evidenc e against Cha rlie
Thompson. While Officer Johnson testified that the officers were in fact aware of some of the stolen items, such as the
rifle and scope, all of the officers denied making any statements or promises of leniency. No proof whatsoever was
introduced by the appe llee of these prom ises, and as such, we cannot say that the finding of the trial court as to the
voluntariness of the appellee’s statements is against the weight of the evidence.

         23
             Indeed, neither the Fifth Amend ment nor A rticle I, section 9 applies to ev idence that is d isclosed vo luntarily
and free from compulsion, even without the requisite wa rnings. See State v. Hurley, 876 S.W.2d 57, 66 (Tenn. 1993);
see also Miranda, 384 U.S. at 478 (“The fundamental import of the privilege while an individual is in custody is not
whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be
interrogated. . . . Volunteered statements of any kind are no t barred b y the Fifth Ame ndment an d their adm issibility is
not affected b y our holding today.”).

                                                             -19-
         In summary, we hold that the appellee in this case was subjected to custodial interrogation
in violation of the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). As such, any
statements made by the appellee in response to such interrogation are suppressed. Nevertheless,
because all of the appellee’s statements in this case were voluntary and not the product of actual
coercion or other efforts designed to overcome his will, we hold that the physical evidence recovered
as fruit of that violation need not be suppressed. The judgment of the Court of Criminal Appeals is
affirmed in part and reversed in part.

        In the trial court, the appellee pleaded guilty reserving a certified question of law thought by
the parties and both lower courts to be dispositive of the case, and we accepted jurisdiction on this
basis. However, through our analysis of, and consultation with, various legal authorities, we have
determined that the Miranda violation was in fact not dispositive of the case because not all fruits
of that violation need to be suppressed. See State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim.
App. 1984) (stating that an issue is deemed to be dispositive when the appellate court “must either
affirm the judgment or reverse and dismiss”). As such, we can neither affirm the judgment of the
trial court as it stands, because some of the evidence considered was certainly inadmissible, nor can
we reverse and dismiss the case, because the physical evidence against the appellee is properly
considered as evidence of guilt.

        Although we do not accept jurisdiction when the certified question is not dispositive of the
case, State v. Preston, 759 S.W.2d 647, 651 (Tenn. 1988) (“If the appellate court does not agree that
the certified question is dispositive, appellate review should be denied.”), the non-dispositive nature
of this issue did not come to light until after this Court granted permission to appeal and heard
argument by the parties. Under the special circumstances of this case, especially given that the
suppression issue was one of first impression for this Court, we felt it appropriate to address the issue
as stated in the certification and as accepted for appeal by this Court and the Court of Criminal
Appeals. See State v. Jennette, 706 S.W.2d 614, 617 (Tenn. 1986). We hasten to add, however, that
this decision today in no way signals a departure from the rule that appellate review will be denied
when the issues certified for review are in fact not dispositive of the case. See Tenn. R. Crim. P.
37(b)(2)(i).

        As a final note, we observe that when the appellee pleaded guilty to the charges of burglary
and aggravated burglary, he did so with the expectation that his statements to the police were
admissible as evidence against him. Because the Miranda violation in this case requires suppression
of the appellee’s statements made in response to interrogation, the appellee’s initial presumption
concerning the evidence to be presented against him was not accurate. Consequently, in the exercise
of our discretion to fashion appropriate relief under the circumstances of each individual case, see
Tenn. R. App. P. 36(a), we remand this case to the Dyer County Circuit Court, giving the appellee
the opportunity to withdraw his original plea should he so desire.

       Costs of this appeal shall be taxed equally against the appellant, the State of Tennessee, and
the appellee, Timothy Walton.



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       ____________________________________
       WILLIAM M. BARKER, JUSTICE




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