High Court to Consider Rights Within Miranda

WASHINGTON —  Just three years after the Supreme Court affirmed its landmark Miranda decision, the rule that police must warn crime suspects of their “right to remain silent” is in danger of being effectively repealed, longtime defenders of the decision say.

This week, the justices are scheduled to hear three cases -- from Colorado, Missouri and Nebraska -- that will determine whether there is a penalty when police fail to warn suspects of their rights before questioning them.

“For all practical purposes, Miranda will be a dead letter” if the justices side with police and prosecutors in all three cases, said Stephen Schulhofer, a law expert at the Brennan Center for Justice in New York.

University of Michigan law professor Yale Kamisar agrees. “They would be overruling Miranda without saying so,” he said.

None of the cases asks the high court to directly overrule Miranda vs. Arizona, the 1966 case that established the now-familiar warnings. Conservatives tried to attack Miranda head-on but suffered a surprising 7-2 defeat in June 2000 in a decision written by Chief Justice William H. Rehnquist, a Miranda critic.

It is too late to overturn it, Rehnquist wrote. The warnings have been “embedded in routine police practice,” and, indeed, have “become part of our national culture.”

The new cases pose a different and still unresolved question: What happens if the police either deliberately or inadvertently do not warn a suspect of his or her rights before questioning?

If there is no penalty for violating the Miranda rights, police will not follow them, the rule’s defenders say.

Earlier this year, the justices said a police officer could not be sued for such a violation. In a case from Oxnard, Oliverio Martinez, a farm worker who was shot five times by a police officer, had sued Ben Chavez, a patrol supervisor, who had repeatedly pressed him to give a statement in a hospital emergency room.

Martinez survived the shooting, and though he was not charged with a crime, he sued the police over his ordeal.

In a 6-3 decision, the high court said the Constitution’s right against self-incrimination did not regulate police questioning, but that it prevents a person’s compelled statements from being used against him in a criminal case.

“Chavez’s failure to read Miranda warnings to Martinez did not violate Martinez’s constitutional rights and cannot be grounds” for suing the police, said Justice Clarence Thomas.

The three new cases test whether a violation of the Miranda rules requires the courts to exclude evidence against the criminal defendant.

The first will decide whether police can question first and warn later. In California and elsewhere, detectives have learned to question “outside Miranda” when suspects are reluctant to talk. The issue arose in a Missouri case in which a mother was convicted of conspiring to have her mentally disturbed teen son die in a fire, set partly to hide the death of another disabled son, possibly from neglect.

Patrice Seibert, the mother, was awakened at 3 a.m. outside a hospital room where a third son was recovering from burns he suffered in the blaze. A St. Louis County police officer took her into custody for questioning. His supervisor told him not to give Seibert the Miranda warnings.

The officer sat alone with Seibert in an interview room. He did not threaten her or use physical force. Instead, he held her arm and repeated that Donald, the mentally disturbed son, was supposed to “die in his sleep.” The officer had apparently learned this detail from interviewing another surviving teenager who set the fire. After about 40 minutes, Seibert agreed she knew Donald was intended to die in the fire.

Then, after a short break, the officer resumed the questioning and recorded the conversation. He gave Seibert the Miranda warnings, and she said she understood her rights.

“Didn’t you tell me that [Donald] was supposed to die in his sleep?” the officer prompted her. “Yes,” Seibert replied.

Based on this admission, Seibert was charged with first-degree murder. A jury convicted her of second-degree murder, and she was sentenced to life in prison.

But last December, the Missouri Supreme Court reversed Seibert’s conviction because of the “end run” around the Miranda rules.

“To hold otherwise would encourage future violations,” the 4-3 majority said. If police are allowed to question suspects before warning them of their right to remain silent, “the requirement of a warning would be meaningless,” the court said.

In Missouri vs. Seibert, state prosecutors and Bush administration lawyers are urging the high court to reverse that ruling and clarify that a voluntary confession may be used in court.

“A police officer’s intentional failure to give Miranda warnings before obtaining an incriminating statement from a suspect does not taint a subsequent warned statement,” said U.S. Solicitor Gen. Theodore B. Olson.

The second case tests whether police and prosecutors may use physical evidence, such as a gun or drugs, despite a Miranda violation.

The violation in the case of Samuel Patane is minor at best, legal experts say. Patane had been arrested for threatening a former girlfriend in Colorado Springs, Colo., and was ordered not to contact her. Shortly after he was released, Patane began calling his former girlfriend.

A police officer and federal agent went to Patane’s apartment and handcuffed him. When they began to give Patane his Miranda rights, he cut them off in mid-sentence. When the officer asked about his gun, Patane said, “The Glock is in my bedroom on a shelf.” He was indicted for being a felon in possession of a gun. However, a federal judge held that the officers violated the Miranda rules because they did not fully warn him of his rights and obtain a waiver before questioning him. Based on this conclusion, the U.S. Court of Appeals in Denver said the physical evidence against him -- the Glock pistol -- should have been thrown out.

In U.S. vs. Patane, the government’s lawyers are urging the court to rule that physical evidence may be used against suspects, even when their Miranda rights are violated.

Under the so-called “fruit of the poisonous tree” doctrine, the government cannot use evidence that was obtained after violating a suspect’s constitutional rights. If police without a search warrant break into a suspect’s house, the usual rule is that any evidence found may not be used against the suspect.

It is not clear whether the rule applies to Miranda violations. Olson said the court should rule that the Miranda decision prevents only a suspect’s “unwarned statements” from being used in court. Lawyers for the American Civil Liberties Union say a broader rule is needed to deter police misconduct.

In the third case, police in Lincoln, Neb., went to arrest and question John Fellers after he was indicted on charges of drug dealing. Without giving Fellers Miranda warnings or consulting his lawyer, the officers asked him about the people named in the indictment. Fellers said he had used drugs with them.

In the mid-1960s the high court had said police could not question an indicted defendant without speaking to his or her lawyer. But in Fellers vs. United States, the government’s lawyers say voluntary statements to the police should not be suppressed.

Criminal law experts say it is hard to forecast the outcome because the current justices have dealt little with the practical aspects of police questioning.

Some predict the court will make it easier, not harder, to make use of voluntary confessions by criminals.

The justices “want to limit the damage of having guilty criminals going free because of technical mistakes by the police,” said Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento. He said it was unlikely Miranda would be repealed.

“That’s overblown,” Scheidegger said. “If [the justices] had wanted to get rid of Miranda, they would have done it three years ago.”