United States v. Patane

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 17 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,
v.
No. 01-1503
SAMUEL FRANCIS PATANE,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 01-CR-228-WM)

Joseph C. Wyderko, Attorney, Criminal Division, U.S. Department of Justice,
Washington, D.C. (John W. Suthers, United States Attorney; Suneeta Hazra and
Sean Connelly, Assistant United States Attorneys, Denver, Colorado, with him on
the briefs), for Plaintiff-Appellant.

Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender, with her on the brief), Denver, Colorado, for Defendant-
Appellee.

Before EBEL, ANDERSON, and HENRY, Circuit Judges.

EBEL, Circuit Judge.
 The Government appeals from the district court’s order suppressing the

physical evidence against Samuel Francis Patane on charges of gun possession by

a felon. The district court based its suppression order on its conclusion that the

evidence was insufficient to establish probable cause to arrest Patane. We

conclude, contrary to the district court, that probable cause existed to arrest

Patane. However, we affirm the district court’s order on the alternative ground

that the evidence must be suppressed as the physical fruit of a Miranda violation.

I. BACKGROUND

Patane was indicted for possession of a firearm by a convicted felon in

violation of 18 U.S.C. § 922(g)(1). The district court held a suppression hearing

at which the police investigation leading to discovery of the gun was detailed.

Ruling from the bench a week later, the court granted defendant’s motion to

suppress. Patane’s arrest resulted from the intersection of two essentially

independent investigations – one by Colorado Springs Detective Josh Benner

regarding Patane’s gun possession, and another by Colorado Springs Officer

Tracy Fox regarding Patane’s violation of a domestic violence restraining order.

The story begins when Patane was arrested for harassing and menacing his

ex-girlfriend, Linda O’Donnell. He was released on bond from the El Paso,

Colorado county jail on June 3, 2001, subject to a temporary restraining order.

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The restraining order is not in the record, but uncontroverted testimony indicates

that it forbade Patane to contact O’Donnell, in person or by phone, directly or

indirectly, in the 72 hours after his release on bond.

On June 6, an agent with the federal Bureau of Alcohol, Tobacco, and

Firearms telephoned Detective Benner, a member of a local police drug

interdiction unit that worked closely with the ATF. The agent said that a county

probation officer had told him that Patane was a convicted felon who also had

been convicted on a domestic violence charge, and that Patane possessed a Glock

.40 caliber pistol. The record does not reveal how the probation officer knew that

Patane had the gun. Detective Benner called O’Donnell to inquire about the gun,

and she told him that Patane had the pistol with him at all times.

Seemingly by coincidence, at the moment Benner called O’Donnell to ask

about the gun, Officer Fox had arrived at O’Donnell’s residence, responding to a

call from O’Donnell about an alleged violation of the restraining order.

O’Donnell told Officer Fox that two days earlier, O’Donnell received a hang-up

call. Using the *69 feature on her telephone, O’Donnell learned that the call

originated from a number that O’Donnell recognized as Patane’s home telephone.

This call violated Patane’s restraining order, O’Donnell stated, and she showed

Officer Fox a copy of the order. O’Donnell said that she was afraid for her

safety, that she knew Patane regularly had a gun, and that Patane kept a list of

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people he wanted to kill. Officer Fox confirmed by computer that a restraining

order had been issued.

Officer Fox did not confirm O’Donnell’s use of the call tracing, although

she had done so in a prior, unrelated case and thus was aware it was possible.

Neither Officer Fox nor Detective Benner ran a criminal background check on

O’Donnell prior to Patane’s arrest, which Patane asserts would have revealed that

O’Donnell was herself out on bond for carrying a concealed weapon, criminal

trespass, theft, and criminal damage.

Detective Benner and Officer Fox then spoke by phone. Officer Fox said

she planned to arrest Patane for violating the restraining order by calling

O’Donnell, and the two arranged to go to Patane’s house. Officer Fox knocked

on the door while Detective Benner went out back in case Patane attempted to

flee. The woman who answered the door summoned Patane. Officer Fox asked

Patane to step outside, which he did. She asked him about the hang-up call, and

Patane denied having made the call or having contacted O’Donnell in any way.

Officer Fox told Patane that he was under arrest and handcuffed him shortly

afterward.

With Patane arrested and handcuffed, Detective Benner emerged from the

back of the house and approached Patane. Detective Benner began advising

Patane of his Miranda rights, but only got as far as the right to silence when

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Patane said that he knew his rights. No further Miranda warnings were given, a

fact which the Government concedes on appeal resulted in a Miranda violation.

Detective Benner told Patane he was interested in what guns Patane owned.

Patane replied, “That .357 is already in police custody.” Detective Benner said,

“I am more interested in the Glock.” Patane said he was not sure he should tell

Detective Benner about the Glock pistol because he did not want it taken away.

Detective Benner said he needed to know about it, and Patane said, “The Glock is

in my bedroom on a shelf, on the wooden shelf.” Detective Benner asked for

permission to get the gun, which Patane granted, and Detective Benner went

inside, found the gun where Patane described, and seized it. Detective Benner

then told Patane, as the detective later testified, that “I wasn’t going to arrest him

for the gun at this time because I wanted to do some more investigations.”

Officer Fox took Patane to the police station and booked him for violating the

restraining order.

The next day, Detective Benner met with Patane’s probation officer and

verified that Patane had a prior felony conviction for drug possession as well as a

misdemeanor third degree assault conviction.

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 II. PROBABLE CAUSE

On appeal, the Government argues that the district court erred in

concluding that the police lacked probable cause to arrest Patane for violating the

domestic violence restraining order. We agree with the Government.

In reviewing the district court’s probable cause determination, “we consider

the evidence in a light most favorable to the district court’s legal determinations,

and review the court’s findings of historical fact for clear error. Absent any

finding of fact, we will uphold the court’s legal determination if any reasonable

view of the evidence supports it. We review the ultimate determinations of

reasonable suspicion to stop and probable cause to arrest de novo.” United States

v. Treto-Haro, 287 F.3d 1000, 1002 (10th Cir. 2002) (citations omitted). We have

articulated the substantive probable cause standard as follows:

An officer has probable cause to arrest if, under the totality of
the circumstances, he learned of facts and circumstances
through reasonably trustworthy information that would lead a
reasonable person to believe that an offense has been or is
being committed by the person arrested. Probable cause does
not require facts sufficient for a finding of guilt; however, it
does require more than mere suspicion.

United States v. Morris, 247 F.3d 1080, 1088 (10th Cir. 2001) (internal quotation

marks and citations omitted).

The district court’s ruling that no probable cause existed to arrest Patane

for violating the domestic violence restraining order was based on its view that

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domestic disputes often involve “claims and counterclaims . . . thrown between

people who have separated some sort of an intimate relationship,” and therefore

that uncorroborated allegations arising from such disputes are “just inadequate” to

establish probable cause. Unexplored avenues of corroboration noted by the court

were: the failure to check telephone records to confirm O’Donnell’s allegation

that a call had been placed from Patane’s residence to hers during the time frame

covered by the restraining order, “verification which presumably could have been

done rather easily,” the failure to investigate O’Donnell’s credibility prior to the

arrest, the failure to corroborate O’Donnell’s accusations apart from Detective

Benner’s confirmation that Patane indeed possessed a gun, which “has nothing to

do with the crime for which he was arrested,” and the failure to determine

whether persons other than Patane had access to Patane’s telephone. The court

also noted that “[i]t’s just one contact which . . . could, in my life experience,

have been an innocent mistake” because “people do make calls to numbers with

which they are familiar, not intending to make the call,” that Patane denied

having contacted O’Donnell, and that O’Donnell delayed two days in reporting

the call to the police.

We reject any suggestion that victims of domestic violence are unreliable

witnesses whose testimony cannot establish probable cause absent independent

corroboration. We have stated, “when examining informant evidence used to

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support a claim of probable cause for a . . . warrantless arrest, the skepticism and

careful scrutiny usually found in cases involving informants, sometimes

anonymous, from the criminal milieu, is appropriately relaxed if the informant is

an identified victim or ordinary citizen witness.” Easton v. City of Boulder, 776

F.2d 1441, 1449 (10th Cir. 1985); see also Guzell v. Hiller, 223 F.3d 518, 519-20

(7th Cir. 2000) (“Police are entitled to base an arrest on a citizen complaint . . . of

a victim . . . without investigating the truthfulness of the complaint, unless . . .

they have reason to believe it’s fishy.” (citations omitted)). See generally 2

Wayne R. LaFave, Search and Seizure § 3.4(a), at 209-11 (3d ed. 1996) (noting

that “[b]y far the prevailing view” is that corroboration is not essential in victim-

witness cases, and arguing “that when an average citizen tenders information to

the police, the police should be permitted to assume that they are dealing with a

credible person in the absence of special circumstances suggesting that such may

not be the case”).

We find no basis for the suggestion that domestic violence victims are

undeserving of the presumption of veracity accorded other victim-witnesses.

Indeed, our decision in Easton forecloses such a position. In Easton, probable

cause to arrest for child molestation was based on the accusations of two child

witnesses, one five years old and the other three years old. We rejected as “an

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entirely unacceptable point of view” the argument that the children’s testimony

was suspect, stating:

In a great many child molestation cases, the only available
evidence that a crime has been committed is the testimony of
children. To discount such testimony from the outset would
only serve to discourage children and parents from reporting
molestation incidents and to unjustly insulate the perpetrator of
such crimes from prosecution.

Easton, 776 F.2d at 1449. 1 A strict corroboration requirement in domestic

violence cases would create precisely the same proof problems we found

dispositive in Easton.

In this case, neither the district court nor Patane point to any evidence in

the record suggesting that O’Donnell lied about the purported hang-up call out of

personal animosity against Patane arising from their failed relationship, let alone

that the police were aware of such evidence at the time of arrest. For example,

there was no evidence that O’Donnell had threatened to lie in such a manner, or

that she had lied in such a manner in the past. To the contrary, there was

evidence that Patane recently had been arrested for harassing and menacing

O’Donnell after he threatened to kill her, that O’Donnell knew that Patane carried

1
We noted in Easton that the accusations of the children contained
“significant” discrepancies, and even noted the possibility that their testimony
would be inadmissible in court due to an inability to understand the oath, yet we
held that the children’s accusations established probable cause. 776 F.2d at 1449-
50.

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a gun and kept a list of persons (including police officers) he wanted to kill, and

that O’Donnell feared that Patane would kill her. Admittedly, O’Donnell waited

two days before reporting the hang-up call, a fact that could cast some doubt on

the veracity of her report. However, we do not believe that fact alone was

sufficient to require the officers to treat her complaint with special skepticism.

In any event, we note that the officers here did corroborate O’Donnell’s

veracity in two respects. First, the district court found as fact that, prior to the

arrest, Detective Benner had learned from a probation officer that Patane

possessed a gun. Second, Officer Fox verified that a restraining order had been

issued against Patane. The mere fact that further corroboration was possible is

not dispositive of whether the information available would lead a reasonable

person to believe that an offense had been committed.

At oral argument, Patane argued that, as a matter of law, a single hang-up

phone call could not constitute a violation of the restraining order. We disagree.

As noted above, the evidence showed that the restraining order forbade Patane to

contact O’Donnell, directly or indirectly, in person or by telephone, and counsel

for Patane conceded that multiple hang-up phone calls would amount to a

violation of the restraining order. We find no basis to conclude that a single call

is not “contact” with the victim, or that a single call does not implicate the same

concerns about intimidation and harassment that multiple calls would. Cf. 42

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U.S.C. § 376hh(a), (b)(1) (“encourag[ing] States . . . to treat domestic violence as

a serious violation of criminal law” by authorizing Attorney General to make

grants to implement “mandatory arrest or proarrest programs and . . . policies for

protection order violations”). We acknowledge that it is conceivable that a single

hang-up call might result from careless rather than willful behavior. However,

probable cause does not require certainty of guilt or even a preponderance of

evidence of guilt, but rather only reasonably trustworthy information that would

lead a reasonable person to believe an offense was committed. Morris, 247 F.3d

at 1088. The possibility that the hang-up call here was accidental does not defeat

probable cause.

Accordingly, we conclude that Patane’s arrest was supported by probable

cause to believe that Patane had violated the domestic violence restraining order. 2

2
In light of our conclusion that the officers had probable cause to arrest
for violation of the restraining order, it is unnecessary to reach the Government’s
alternative argument that the arrest was justified by probable cause to believe that
Patane was a felon in possession of a gun. The district court declined to decide
whether the officers had probable cause to arrest on the basis of Patane’s gun
violation. (“[T]o allow the arresting officers after the fact to go back and
scramble . . . for evidence that might justify an arrest on another charge . . .
would not be a good rule to establish . . . .”).) On appeal, the Government argued
that this reasoning is foreclosed by United States v. Santana-Garcia, 264 F.3d
1188, 1192-93 (10th Cir. 2001) (officer’s subjective belief as to non-existence of
probable cause not dispositive); see also Treto-Haro, 287 F.3d at 1006 (same).
Patane correctly conceded that the district court’s reasoning was erroneous in
light of our precedent, and on appeal he argued only that the officers lacked
probable cause to believe that he was a felon in possession of a gun. The district
(continued...)

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 III. SUPPRESSION OF THE PHYSICAL FRUITS OF A MIRANDA
VIOLATION

Our conclusion that the district court erroneously based suppression of the

gun on the absence of probable cause to arrest does not end our inquiry. Patane

argues that suppression of the gun should be affirmed because, even if the arrest

was proper, the ensuing Miranda violation independently requires suppression of

the physical evidence.

The district held, and the Government concedes on appeal, that a Miranda

violation occurred when the police questioned Patane about his possession of a

gun without administering the complete Miranda warnings. As explained above,

this questioning led Patane to admit that he possessed a gun in his bedroom,

which admission in turn led immediately to seizure of the gun. The Government

correctly concedes that Patane’s admissions in response to questioning were

inadmissible under Miranda, but argues that the physical fruit of the Miranda

violation – the gun – is admissible.

The district court determined that it was unnecessary to decide whether the

physical fruits of a Miranda violation must be suppressed because it had

concluded that the underlying arrest that led to the confession was

2
(...continued)
court did not reach this issue, and we decline to do so in the first instance on
appeal.

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unconstitutional. Because we have reversed the conclusion that the arrest was

unconstitutional, we are now squarely presented with the issue whether the gun

should be suppressed in any event because it was obtained as the fruits of an

unconstitutionally obtained confession. This issue was fully briefed and

presented below and it is again fully briefed on appeal. Resolution of this issue

involves our answering a purely legal question (i.e., whether the physical fruits of

a Miranda violation must be suppressed), a question that potentially would render

remand and further proceedings unnecessary. Thus, we now turn to that issue.

Smith v. Plati, 258 F.3d 1167, 1174 (10th Cir. 2001). Below, we conclude that

the physical evidence that was the fruit of the Miranda violation in this case must

be suppressed.

A. Supreme Court precedent

The Government relies primarily on two Supreme Court cases for its

argument that the fruits doctrine does not apply to Miranda violations: Michigan

v. Tucker, 417 U.S. 433, 445-46 (1974), and Oregon v. Elstad, 470 U.S. 298, 306

(1985). Both cases, it is true, declined to apply the fruits of the poisonous tree

doctrine of Wong Sun v. United States, 371 U.S. 471, 485 (1963), to suppress

evidence obtained from an un-Mirandized confession. However, both cases were

predicated upon the premise that the Miranda rule was a prophylactic rule, rather

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than a constitutional rule. Elstad, 470 U.S. at 305 (“‘The prophylactic Miranda

warnings are not themselves rights protected by the Constitution . . . .’” (quoting

New York v. Quarles, 467 U.S. 649, 654 (1984)) (internal quotation marks

omitted)); id. at 308 (“Since there was no actual infringement of the suspect’s

constitutional rights, [Tucker] was not controlled by the doctrine expressed in

Wong Sun that fruits of a constitutional violation must be suppressed.” (emphasis

added)); Tucker, 417 U.S. at 445-46 (distinguishing Wong Sun because “the

police conduct at issue here did not abridge respondent’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”).

Because Wong Sun requires suppression only of the fruits of unconstitutional

conduct, the violation of a prophylactic rule did not require the same remedy.

However, the premise upon which Tucker and Elstad relied was

fundamentally altered in Dickerson v. United States, 530 U.S. 428 (2000). In

Dickerson, the Supreme Court declared that Miranda articulated a constitutional

rule rather than merely a prophylactic one. Id. at 444 (“Miranda announced a

constitutional rule that Congress may not supersede legislatively.”); see id. at 432,

438, 440. Thus, Dickerson undermined the logic underlying Tucker and Elstad.

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 Additionally, a close reading of Tucker and Elstad reveals other

distinctions that lead us to conclude that those cases should not be given the

sweeping reading the Government is asserting. We examine each decision below.

Tucker involved an un-Mirandized custodial interrogation that occurred

prior to the issuance of the Miranda decision. 3 During the course of the

interrogation, the defendant identified a relevant witness of whom the police

previously had been ignorant. The defendant argued before the Court that the

testimony of the witness so identified by the defendant should have been barred as

the fruit of the Miranda violation. The Court’s rejection of this argument rested

largely on its conclusion that excluding the fruits of this confession would have

minimal prophylactic effect because the officers were acting in complete good

faith under prevailing pre-Miranda law that barred only coerced confessions.

After noting in the opening paragraph of the opinion that the interrogation took

place prior to Miranda, Tucker, 417 U.S. at 435, the Court explained:

The deterrent purpose of the exclusionary rule necessarily
assumes that the police have engaged in willful, or at the very
least negligent, conduct which has deprived the defendant of
some right. . . . Where the official action was pursued in
complete good faith, however, the deterrence rationale loses
much of its force.

3
Miranda nonetheless applied because it was issued prior to Tucker’s trial.
In fact, the defendant received all the warnings later incorporated into the
Miranda requirements except for the advice that he could receive free counsel if
he was indigent.

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 We consider it significant to our decision in this case
that the officers’ failure to advise respondent of his right to
appointed counsel occurred prior to the decision in Miranda.
Although we have been urged to resolve the broad question of
whether evidence derived from statements taken in violation of
the Miranda rules must be excluded regardless of when the
interrogation took place, we instead place our holding on a
narrower ground. For at the time respondent was questioned
these police officers were guided, quite rightly, by the
principles established in Escobedo v. Illinois . . . .

Id. at 447 (emphasis added, footnote omitted). The Court then noted that no

coercion rendered the challenged testimony unreliable. Id. at 449.

The other Supreme Court case offered by the Government to support its

argument is Elstad, 470 U.S. at 306. In Elstad, the defendant made incriminating

statements while in custodial interrogation prior to the issuance of Miranda

warnings. The police then administered Miranda warnings, and thereafter the

defendant made further incriminating statements. The issue in Elstad was

whether the defendants post-Mirandized statements must be suppressed as the

fruit of the earlier Miranda violation. Id. at 303. The Supreme Court held that

suppression was not required, rejecting the view that the post-warning statements

were the unconstitutional product of “a subtle form of lingering compulsion, the

psychological impact of the suspect’s conviction that he has let the cat out of the

bag.” Id. at 311. After repeating the now-suspect reasoning that a Miranda

violation was not necessarily a constitutional violation and thus not controlled by

the fruits doctrine of Wong Sun, the Court stated:

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 [T]he Miranda presumption, though irrebuttable for purposes
of the prosecution’s case in chief, does not require that the
statements and their fruits be discarded as inherently tainted.
....
. . . . In deciding how sweeping the judicially imposed
consequences of a failure to administer Miranda warnings
should be, the Tucker Court noted that neither the general goal
of deterring improper police conduct nor the Fifth Amendment
goal of assuring trustworthy evidence would be served by
suppression of the witness’ testimony. The unwarned
confession must, of course, be suppressed, but the Court ruled
that introduction of the third-party witness’ testimony did not
violate Tucker’s Fifth Amendment rights.
We believe that this reasoning applies with equal force
when the alleged “fruit” of a noncoercive Miranda violation is
neither a witness nor an article of evidence but the accused’s
own voluntary testimony. As in Tucker, the absence of any
coercion or improper tactics undercuts the twin
rationales–trustworthiness and deterrence–for a broader rule.
Once warned, the suspect is free to exercise his own volition in
deciding whether or not to make a statement to the authorities.
The Court has often noted: A living witness is not to be
mechanically equated with the proffer of inanimate evidentiary
objects illegally seized. The living witness is an individual
human personality whose attributes of will, perception,
memory and volition interact to determine what testimony he
will give.

Id. at 307-09 (first emphasis added, alterations and internal quotation marks

omitted). Elstad thus drew a distinction between fruits consisting of a subsequent

confession by the defendant after having been fully Mirandized and fruits

consisting of subsequently obtained “inanimate evidentiary objects.” Id. at 309.

A subsequent, Mirandized confession need not be excluded because it is the

product of “volition,” willingly offered up by a defendant who already had been

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made aware of his Miranda rights. Id. By implication, “inanimate evidentiary

objects” would be excludable, because physical evidence derived from the

defendant’s un-Mirandized statement is not the product of volition after a

defendant has been Mirandized properly. 4 See id. at 347 n.29 (Brennan, J.,

dissenting) (“[T]oday’s opinion surely ought not be read as also foreclosing

application of the traditional derivative-evidence presumption to physical

evidence obtained as a proximate result of a Miranda violation. The Court relies

4
See also Orozco v. Texas, 394 U.S. 324 (1969). In Orozco, the officers
interrogated a suspect in custody without giving Miranda warnings, learning that
the suspect owned a gun and where it was located. Id. at 325. Ballistics tests of
the gun indicated that it had been used to commit a murder. Id. In a terse
holding, the Court held that “the use of these admissions obtained in the absence
of the required warnings was a flat violation of the Self-Incrimination Clause of
the Fifth Amendment as construed in Miranda.” Id. at 326 (emphasis added).
The Court did not expressly consider whether the gun and the ballistics evidence
would be admissible on remand. However, one plausible reading of Orozco is
that the reference to the unconstitutional “use” of the statements includes their
use by police officers in obtaining the gun, as well as their introduction of the
admission at trial.

This reading of Orozco is reinforced by the Court’s subsequent opinion in
Kastigar v. United States, 406 U.S. 441 (1972). Kastigar noted that the privilege
against self-incrimination “protects against any disclosures which the witness
reasonably believes could be used in a criminal prosecution or could lead to other
evidence that might be so used,” id. at 445, and that “immunity from use and
derivative use is coextensive with the scope of the privilege,” id. at 453.

Indeed, in Miranda itself the Court stated that “unless and until such
warnings and waiver are demonstrated by the prosecution at trial, no evidence
obtained as a result of interrogation can be used against him.” 384 U.S. 436, 454
(1966) (emphasis added).

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heavily on individual ‘volition’ as an insulating factor in successive-confession

cases. . . . [This] factor is altogether missing in the context of inanimate

evidence.” (citation omitted)). 5

While the reasoning regarding volition in Elstad’s holding indicates that the

physical fruits of a Miranda violation are subject to the Wong Sun fruits doctrine,

we acknowledge that dicta elsewhere in the opinion has been cited for the

contrary conclusion. See Elstad, 470 U.S. at 307 (“[T]he Miranda presumption,

though irrebuttable for purposes of the prosecution’s case in chief, does not

require that the statements and their fruits be discarded as inherently tainted.”);

id. at 308 (stating that Tucker’s reasoning “applies with equal force when the

alleged ‘fruit’ of a noncoercive Miranda violation is neither a witness nor an

article of evidence but the accused’s own voluntary testimony”). 6 These passages,

5
There is a substantial argument that Elstad ought not even be treated as a
case involving application of the Wong Sun fruits doctrine in the first place, for
precisely the reasons emphasized by Elstad in its volition discussion. In rejecting
the argument that the second confession was the result of some “subtle form of
lingering compulsion,” id. at 311, Elstad in effect concluded that the second
confession was not evidence “obtained . . . as a direct result” of the Miranda
violation. Wong Sun, 371 U.S. at 485. In other words, the post-Mirandized
confession in Elstad was admitted because it was not (rather than despite the fact
that it was) the fruit of the poisonous tree.
6
We also recognize that Justice O’Connor argued that the physical fruits
of a Miranda violation were not subject to Wong Sun suppression in her pre-
Elstad concurrence in New York v. Quarles, 467 U.S. 649, 665-72 (1984)
(O’Connor, J., concurring in the judgment in part and dissenting in part). As
explained above, this argument was not adopted by the Court in Elstad or in any
(continued...)

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in contrast to the volition discussion, provide only ambiguous support for the

position for which they are cited. To the extent they do address the admissibility

of the physical fruits of a Miranda violation rather than a subsequent Mirandized

confession, they are dicta not part of the reasoning of the holding.

In any event, we do not suggest that the holding in Elstad relying on

volition definitively establishes that the physical fruits of a Miranda violation

must be suppressed. Rather, the essential point for our analysis is only that Elstad

does not definitively establish the contrary rule. We think Justice White most

accurately summarized the relevance of Elstad and Tucker to the issue of

suppression of the physical fruits of a Miranda violation:

In Michigan v. Tucker, this Court expressly left open the
question of the admissibility of physical evidence obtained as a
result of an interrogation conducted contrary to the rules set
forth in Miranda v. Arizona. Since that time, the state and
federal courts have been divided on this question. Indeed, in
Massachusetts v. White, 439 U.S. 280 (1978), this Court was
evenly divided on the issue of the admissibility of physical
evidence obtained from an interrogation that violated Miranda.
....
While Elstad has been considered illuminating by some
Courts of Appeals on the question of admissibility of physical
evidence yielded from a Miranda violation, that decision did
not squarely address the question presented here, and in fact,
left the matter open.

(...continued)
6

subsequent opinion of the Court. Justice O’Connor joined the majority opinion in
Dickerson.

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Patterson v. United States, 485 U.S. 922, 922-23 (1988) (White, J., dissenting

from denial of certiorari) (footnotes and citations omitted).

It is true that, prior to Dickerson, the Tenth Circuit applied Tucker and

Elstad to the physical fruits of a Miranda violation and concluded that

suppression was not required because “[w]here the uncounseled statement is

voluntary . . . there is no fifth amendment violation and the fruits may be

admissible.” United States v. McCurdy, 40 F.3d 1111, 1117 (10th Cir. 1994)

(internal quotations omitted). However, once again Dickerson has undercut the

premise upon which that application of Elstad and Tucker was based because

Dickerson now concludes that an un-Mirandized statement, even if voluntary, is a

Fifth Amendment violation. Dickerson, 530 U.S. at 444.

Accordingly, we reject the Government’s position that Tucker and Elstad

foreclose suppression of the physical fruits of a Miranda violation.

B. Lower court approaches

Courts applying Dickerson have split on the proper application of Wong

Sun to the physical fruits of a Miranda violation. The Third and Fourth Circuits

have ruled that the physical fruits of a Miranda violation never are subject to

Wong Sun suppression. United States v. Sterling, 283 F.3d 216, 218-19 (4th Cir.

2002), cert. denied, 122 S. Ct. 2606 (2002); United States v. DeSumma, 272 F.3d

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176, 180-81 (3d Cir. 2001), cert. denied, 122 S. Ct. 1631 (2002); accord United

States v. Newton, 181 F. Supp. 2d 157, 179-81 & n.16 (E.D.N.Y. 2002); Taylor v.

State, 553 S.E.2d 598, 605 (Ga. 2001); State v. Walton, 41 S.W.3d 75, 88-90

(Tenn. 2001); cf. Abraham v. Kansas, 211 F. Supp. 2d 1308, 1323 (D. Kan. July

2002) (holding that “[a]lthough the Court’s holding in Dickerson seems to have

altered this general rule [that fruits of a Miranda violation need not be

suppressed],” the state court’s failure to suppress physical fruits was not an

“unreasonable application of federal law” under 28 U.S.C. § 2254(d)(1)); Worden

v. McLemore, 200 F. Supp. 2d 746, 752-53 (E.D. Mich. 2002) (holding that state

court’s failure to suppress physical fruits of Miranda violation was not an

unreasonable application of clearly established federal law because of

“disagreement and confusion” among courts regarding application of Dickerson).

The First Circuit, by contrast, has ruled that the physical fruits of a Miranda

violation must be suppressed in certain circumstances, depending on the need for

deterrence of police misconduct in light of the circumstances of each case.

United States v. Faulkingham, 295 F.3d 85, 90-94 (1st Cir. 2002). Below, we

analyze the merits of each of these approaches. We conclude that the First Circuit

is correct that the physical fruits of a Miranda violation must be suppressed where

necessary to serve Miranda’s deterrent purpose. However, we part company with

the First Circuit in the application of that standard, because we conclude that

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Miranda’s deterrent purpose requires suppression of the physical fruits of a

negligent Miranda violation. We therefore conclude that suppression of the gun in

the present case was appropriate.

1. Sterling & DeSumma

The Third and Fourth Circuits have concluded that the fruits doctrine

simply does not apply to Miranda violations even after Dickerson. United States

v. Sterling, 283 F.3d 216, 218-19 (4th Cir. 2002), cert. denied, 122 S. Ct. 2606

(2002); United States v. DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001), cert.

denied, 122 S. Ct. 1631 (2002). Both of these cases held that the physical fruits

of a Miranda violation were admissible. Sterling, 283 F.3d at 219 (shotgun found

in vehicle as a result of Miranda violation); DeSumma, 272 F.3d at 180-81 (gun

found in vehicle as a direct result of Miranda violation). Both Sterling and

DeSumma relied on substantially the same reasoning, focusing primarily on an

isolated passage in Dickerson. Dickerson noted at the outset of the opinion that

“Miranda and its progeny in this Court govern the admissibility of statements

made during custodial interrogation in both state and federal courts.” 530 U.S. at

432. Later in the opinion, in the course of rejecting various arguments supporting

the erroneous view that Miranda was not a constitutional decision, the Court

stated:

The Court of Appeals also noted that in Oregon v. Elstad we
stated that “[t]he Miranda exclusionary rule . . . serves the

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 Fifth Amendment and sweeps more broadly than the Fifth
Amendment itself.” Our decision in that case – refusing to
apply the traditional “fruits” doctrine developed in Fourth
Amendment cases – does not prove that Miranda is a
nonconstitutional decision, but simply recognizes the fact that
unreasonable searches under the Fourth Amendment are
different from unwarned interrogation under the Fifth
Amendment.

Dickerson, 530 U.S. at 441 (emphasis added, citations and internal quotations

omitted).

Both Sterling and DeSumma viewed this language as amounting to an

endorsement of the rule that the Wong Sun exclusionary rule does not apply to the

physical fruits of a Miranda violation. Sterling, 283 F.3d at 219; DeSumma, 272

F.3d at 180. Sterling explained:

Although Dickerson held Miranda to be with
Constitutional significance, Miranda only held that certain
warnings must be given before a suspect’s statements made
during custodial interrogation can be admitted into evidence.
In addition, we are of opinion that the Court’s reference to and
reaffirmation of Miranda’s progeny indicates that the
established exceptions, like those in Tucker and Elstad,
survive. Thus, the distinction between statements and
derivative evidence survives Dickerson. In fact, Dickerson
reiterated the distinction made in Elstad by stating that: “Our
decision in that case – refusing to apply the traditional ‘fruits’
doctrine developed in Fourth Amendment cases – does not
prove that Miranda is a nonconstitutional decision, but simply
recognizes the fact that unreasonable searches under the Fourth
Amendment are different from unwarned interrogation under
the Fifth Amendment.”

283 F.3d at 219 (emphasis in original, citation omitted).

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 There are at least two serious problems with the reasoning in DeSumma and

Sterling. First, we respectfully disagree with their conclusion that Dickerson’s

reference to the controlling force of “Miranda and its progeny in this Court”

forecloses the argument that the physical fruits of a Miranda violation may be

suppressed. Although we agree that, based on this language, the holdings of

Elstad and Tucker survive Dickerson, neither Elstad nor Tucker involved the

physical fruits of a Miranda violation; as explained above, Elstad expressly

contrasted the subsequent confession it found admissible from physical fruits,

while Tucker expressly limited its holding to pre-Miranda interrogations. See

Patterson, 485 U.S. at 922-24 (White, J., dissenting from denial of certiorari). By

wholly undermining the doctrinal foundation upon which those holdings were

built, Dickerson effectively left Elstad and Tucker standing but prevented lower

courts from extending their holdings. Of course, prior to Dickerson many lower

courts (including this one) already had expanded the holdings of Elstad and

Tucker by concluding that Miranda violations do not require suppression of

physical fruits, but Dickerson explicitly limited its saving language to Miranda’s

“progeny in this Court.” 530 U.S. at 432 (emphasis added). Far from endorsing

pre-Dickerson lower court case law, then, Dickerson instead signaled the contrary

view.

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 The second fundamental problem with the reasoning in DeSumma and

Sterling is that the language that they rely on for the proposition that Dickerson

endorsed the extension of Elstad to physical fruits in fact said only that Elstad

“recognizes . . . that unreasonable searches under the Fourth Amendment are

different from unwarned interrogation under the Fifth Amendment.” Dickerson,

530 U.S. at 441 (emphasis added). The critical question, of course, is how the

two are different. At oral argument in the present case, the Government argued

only that the way that Fourth Amendment violations differ from Fifth Amendment

violations is that the Wong Sun fruits doctrine applies to the former and not the

latter. This argument already has been rejected by the Supreme Court. Nix v.

Williams, 467 U.S. 431, 442 & n.3 (1984) (noting that the Court has applied the

fruits doctrine to violations of the Fifth Amendment, citing Murphy v. Waterfront

Comm’n, 378 U.S. 52, 79 (1964)); Kastigar v. United States, 406 U.S. 441, 460-

61 (1972). Although Dickerson itself does not explain how searches under the

Fourth Amendment are “different,” Elstad does just that: “a procedural Miranda

violation differs in significant respects from violations of the Fourth Amendment,

which have traditionally mandated a broad application of the ‘fruits’ doctrine.”

470 U.S. at 306 (emphasis added). 7 This language indicates that Miranda

7
Elstad also stated that a second way that Fourth Amendment violations
are different from Miranda violations is that only the former are constitutional
(continued...)

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violations are “different” because a narrowed application of the fruits doctrine

applies to Miranda violations, not because the fruits doctrine does not apply at all.

Cf. id. at 306 (referring to “[t]he Miranda exclusionary rule”).

Of course, Elstad’s explanation of how application of the fruits doctrine is

“different” in Miranda cases begs the question of what a “broad” application

means. We conclude that the broad application of the fruits doctrine is that

defined in Nix: “the prosecution is not to be put in a better position than it would

have been in if no illegality had transpired.” 467 U.S. at 443. Application of the

fruits doctrine in the Miranda context is not “broad” because a number of

exceptions to this pure rule have been recognized, circumstances where the

prosecution is permitted to benefit from the Miranda violation. See Elstad, 470

U.S. at 314; Tucker, 417 U.S. at 447-48; New York v. Quarles, 467 U.S. 649, 657

(1984) (unwarned answers “to questions in a situation posing a threat to the

public safety” may be used); Harris v. New York, 401 U.S. 222, 225-26 & n.2

(1971) (unwarned statements may be used for impeachment on cross-

examination).

One could argue that further narrowing of the pure fruits doctrine in the

Miranda context – narrowing beyond that already effectuated by the holdings of

7
(...continued)
violations. 470 U.S. at 305-07. This difference, of course, is one that Dickerson
itself rejects.

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Elstad and Tucker 8 – also is appropriate. However, we are unpersuaded that the

additional narrowing articulated in DeSumma and Sterling (refusing to apply the

fruits exclusion to physical evidence obtained as a result of the illegally obtained

confession) reflects a correct understanding of the way in which Miranda

violations are, in Dickerson’s words, “different” from Fourth Amendment

violations.

A blanket rule barring application of the fruits doctrine to the physical

fruits of a Miranda violation would mark a dramatic departure from Supreme

Court precedent. The Court consistently has recognized that deterrence of police

misconduct, whether deliberate or negligent, is the fundamental justification for

the fruits doctrine. Nix, 467 U.S. at 442-43 (“The core rationale consistently

advanced by this Court for extending the exclusionary rule to evidence that is the

fruit of unlawful police conduct has been that this admittedly drastic and socially

costly course is needed to deter police from violations of constitutional and

statutory protections.”); see also Elstad, 470 U.S. at 308 (identifying

trustworthiness and deterrence as the two rationales for a broad fruits suppression

rule); Tucker, 417 U.S. at 447 (noting “the deterrent purpose of the exclusionary

8
Tucker’s narrowing would seem no longer applicable because it appeared
to establish an exception only for questioning that pre-dated Miranda itself.
Elstad’s narrowing would still have applicability today because it declined to
apply the fruits exclusion to a subsequent voluntary confession rendered after the
Miranda warnings are given.

- 28 -
rule”). The Court also has been consistent in narrowing the scope of the fruits

doctrine in the Miranda context only where deterrence is not meaningfully

implicated. See Elstad, 470 U.S. at 308-09 (stating that admission of voluntary

post-warning statements will not undercut deterrence because the suspect remains

“free to exercise his own volition in deciding whether or not to make a [post-

warning] statement to the authorities”); Tucker, 417 U.S. at 447-48 (explaining

that the “deterrence rationale loses much of its force” in that case because the

unwarned interrogation occurred prior to Miranda’s issuance).

In sharp contrast with Elstad and Tucker, however, the rule argued for by

the Government here risks the evisceration of the deterrence provided by the

fruits doctrine, as this case well illustrates. As a practical matter, the inability to

offer Patane’s statements in this case affords no deterrence, because the ability to

offer the physical evidence (the gun) renders the statements superfluous to

conviction. See generally United States v. Kruger, 151 F. Supp. 2d 86, 101-02

(D. Me. 2001) (“The exclusion of the cocaine, the substance – indeed essence – of

the suppressed statements, is necessary to deter law enforcement officers from

foregoing the administration of Miranda warnings . . . .”), overruled by

Faulkingham, 295 F.3d at 92-94; Yale Kamisar, On the “Fruits” of Miranda

Violations, Coerced Confessions, and Compelled Testimony, 93 Mich. L. Rev.

929, 933 (1995) (“Unless the courts bar the use of the often-valuable evidence

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derived from an inadmissible confession, as well as the confession itself, there

will remain a strong incentive to resort to forbidden interrogation methods.”);

David A. Wollin, Policing the Police: Should Miranda Violations Bear Fruit?, 53

Ohio St. L.J. 805, 843-48 (1992) (“Police officers seeking physical evidence are

not likely to view the loss of an unwarned confession as particularly great when

weighed against the opportunity to recover highly probative nontestimonial

evidence, such as a murder weapon or narcotics.”). The present case is hardly

anomalous in this respect, as demonstrated by the multitude of reported cases

where the record demonstrated that the interrogating authorities intentionally (and

in some cases pursuant to official policy and training) violated a suspect’s

Miranda rights in order to procure derivative evidence. E.g., United States v.

Orso, 234 F.3d 436, 441 (9th Cir. 2000), aff’d in part, rev’d in part, 266 F.3d

1030 (9th Cir. 2001) (en banc); Henry v. Kernan, 197 F.3d 1021, 1026, 1028 (9th

Cir. 1999); Pope v. Zenon, 69 F.3d 1018, 1023-24 (9th Cir. 1996), overruled by

Orso, 266 F.3d 1030; Cooper v. Dupnik, 963 F.2d 1220, 1224-27 (9th Cir. 1992);

United States v. Carter, 884 F.2d 368, 373 (8th Cir. 1989); United States v.

Esquilin, 42 F. Supp. 2d 20, 33 (D. Me. 1999), aff’d, 208 F.3d 315 (1st Cir.

2000).

Further, the rule urged upon us by the Government appears to make little

sense as a matter of policy. From a practical perspective, we see little difference

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between the confessional statement “The Glock is in my bedroom on a shelf,”

which even the Government concedes is clearly excluded under Miranda and

Wong Sun, and the Government’s introduction of the Glock found in the

defendant’s bedroom on the shelf as a result of his unconstitutionally obtained

confession. If anything, to adopt the Government’s rule would allow it to make

greater use of the confession than merely introducing the words themselves.

Accordingly, we decline to adopt the position of the Third and Fourth

Circuits that the Wong Sun fruits doctrine never applies to Miranda violations.

2. Faulkingham

With its recent decision in United States v. Faulkingham, 295 F.3d 85 (1st

Cir. 2002), the First Circuit rejected the Third and Fourth Circuits’ blanket refusal

to apply Wong Sun suppression to the fruits of a Miranda violation. Id. at 90-91.

Faulkingham acknowledged, contrary to Sterling and DeSumma, that Dickerson’s

recognition that Miranda violations are constitutional violations strengthened the

argument that their physical fruits must be suppressed. Id. at 92-93. However,

Faulkingham concluded that suppression of the fruits of a Miranda violation was

not required in every case. Rather, it adopted a rule mandating suppression of the

fruits of a Miranda violation in individual cases where “a strong need for

deterrence” outweighs the reliability of that evidence. Id. at 93. Because the

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physical fruits of a Miranda violation generally will be trustworthy evidence, it

appears that in most cases the First Circuit’s analysis boils down to a rule

excluding the fruits of a Miranda violation only when there is a “strong need for

deterrence.” On each of Faulkingham’s two basic points – that Dickerson alters

the analysis regarding suppression of the fruits of a Miranda violation, and that

suppression of the physical fruits is required where necessary to effectuate

Miranda’s deterrent purpose – we agree with the First Circuit. For reasons

already stated above, we conclude that each of these propositions is compelled by

Supreme Court precedent.

Turning to the application of this standard to circumstances – present both

in Faulkingham and in the present case – where an officer negligently rather than

intentionally violates a defendant’s Miranda rights, however, we disagree with the

First Circuit. In Faulkingham, the court concluded that, where the Miranda

violation resulted from mere negligence on the part of the interrogating officer,

there is no strong need for deterrence and thus the physical fruits of the Miranda

violation need not be excluded. We conclude that Faulkingham’s cramped view

of deterrence leads it to an erroneous conclusion regarding negligent Miranda

violations.

Faulkingham asserted, without elaboration, that “[o]nce the un-Mirandized

inculpatory statements of the defendant are themselves suppressed, the role of

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deterrence under the Fifth Amendment becomes less primary.” Id. at 92. The

heart of the court’s analysis is the following:

Where, as here, negligence is the reason that the police failed
to give a Miranda warning, the role of deterrence is weaker
than in a case . . . where the apparent reason the police failed
to give a warning was their intention to manipulate the
defendant into giving them information.
Faulkingham’s claim, taking all the surrounding
circumstances into account, simply does not tip the balance
toward a strong need for deterrence. Faulkingham’s statement
was not the result of “coercive official tactics.” There was no
deliberate misconduct by the [police] agents here. There was
no misleading or manipulation by the government . . . . The
findings of the magistrate judge and the trial judge give us no
reason to think that the agents deliberately failed to give the
warning in order to get to the physical evidence or that they
did so to get to another witness who might or might not
incriminate Faulkingham. The agents’ negligence resulted in
the suppression of Faulkingham’s confession, itself a detriment
to the agents . . . .

Id. at 93-94 (citation to opinion below omitted). The court noted that

“Faulkingham himself started talking without much questioning” and observed

that “there is nothing to shock the conscience of the court and no fundamental

unfairness.” Id. at 94. In light of the totality of the circumstances, the court held

“that Faulkingham’s far weaker argument for recognition of a deterrence interest

for suppression of derivative evidence arising from a negligent violation of his

Miranda rights is insufficient to carry the day.” Id.

We do not believe that “the role of deterrence . . . becomes less primary”

once the statement itself has been suppressed. Id. at 92. Instead, the relevant

- 33 -
question remains whether suppression of the statement alone provides deterrence

sufficient to protect citizens’ constitutional privilege against self-incrimination.

As we already have stated above, see supra at 29-31, we answer this question in

the negative.

Nor do we share Faulkingham’s view that there is a strong need for

deterrence only where the officer’s actions were deliberate rather than negligent.

Finally, Miranda itself made clear that the privilege against self-incrimination was

animated, not by a desire merely to deter intentional misconduct by police, but by

the “one overriding thought” that “the constitutional foundation underlying the

privilege is the respect a government . . . must accord to the dignity and integrity

of its citizens.” Miranda, 384 U.S. at 460; see also id. (“[T]he privilege has come

rightfully to be recognized in part as an individual’s substantive right . . . to a

private enclave where he may lead a private life.” (internal quotation marks

omitted)). The personal right to be free of government invasions of the privilege

against self-incrimination is violated just as surely by a negligent failure to

administer Miranda warnings as a deliberate failure. Deterrence is necessary not

merely to deter intentional wrongdoing, but also to ensure that officers diligently

(non-negligently) protect – and properly are trained to protect – the constitutional

rights of citizens. The call for deterrence may be somewhat less urgent where

- 34 -
negligence rather than intentional wrongdoing is at issue, but in either case we

conclude that the need is a strong one.

Moreover, we conclude that a rule limiting Wong Sun suppression of the

physical fruits of a Miranda violation to situations where the police demonstrably

acted in intentional bad faith would fail to vindicate the exclusionary rule’s

deterrent purpose. Even in cases where the failure to administer Miranda

warnings was calculated, obtaining evidence of such deliberate violations of

Miranda often would be difficult or impossible. Cf. Whren v. United States, 517

U.S. 806, 814 (1996) (noting that one reason for the Court’s adoption of an

objective test for the reasonableness of a seizure was “the evidentiary difficulty of

establishing subjective intent” of officers). An exclusionary rule turning on the

subjective motivation of the police officer would burden courts with the difficult

task of discerning, from the particular facts of each case, the thought processes of

the officer that resulted in the Miranda violation. See Carter, 884 F.2d at 374

(reasoning that courts should not “once again be embroiled in the endless case-by-

case voluntariness inquiries Miranda was designed to prevent [because] the ease-

of-application rationale enunciated by the Supreme Court will be largely

nullified”). We believe a rule that provides certainty in application and clarity for

the officers charged with operating under it better serves the interests of citizens,

officers, and judicial efficiency.

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 Accordingly, we agree with the First Circuit’s conclusion that the Wong

Sun fruits doctrine may apply to the physical fruits of Miranda violations, but we

decline to adopt Faulkingham’s view that the physical fruits of a negligent

Miranda violation are admissible. As a practical matter, we agree with the view

of the United States District Court for the District of Maine, expressed in an

opinion issued prior to Faulkingham:

Prior to the decision in Dickerson, the issue of
suppression of evidence discovered as a result of a violation of
Miranda turned on a complex and largely opaque analysis
attempting to resolve on an ad hoc basis the tension between
the reliability of the subject evidence and the goal of
deterrence of police misconduct. This Court believes all of
that has gone by the board with the conferral by Dickerson of
constitutional status on the right to a Miranda warning.

United States v. Kruger, 151 F. Supp. 2d 86, 101-02 (D. Me. 2001) (citations

omitted), overruled by Faulkingham, 295 F.3d at 90-94.

As explained above, we conclude that Miranda’s deterrent purpose would

not be vindicated meaningfully by suppression only of Patane’s statement. We

hold that the physical fruits of this Miranda violation must be suppressed.

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 IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s order

suppressing the gun. 9

9
Defendant-Appellee’s Motion to Clarify Statements Made in Defendant-
Appellee’s Previously-Filed Answer Brief is denied as moot.

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