F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

SEP 17 2002

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

v.

Plaintiff-Appellant,

SAMUEL FRANCIS PATANE,

No. 01-1503

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 DefendantAppellee.
Before EBEL, ANDERSON, and HENRY, Circuit Judges.
EBEL, Circuit Judge.

The Government appeals from the district courts 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 courts 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 defendants motion to
suppress. Patanes arrest resulted from the intersection of two essentially
independent investigations one by Colorado Springs Detective Josh Benner
regarding Patanes gun possession, and another by Colorado Springs Officer
Tracy Fox regarding Patanes violation of a domestic violence restraining order.
The story begins when Patane was arrested for harassing and menacing his
ex-girlfriend, Linda ODonnell. 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 ODonnell, 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 ODonnell 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 ODonnell to ask
about the gun, Officer Fox had arrived at ODonnells residence, responding to a
call from ODonnell about an alleged violation of the restraining order.
ODonnell told Officer Fox that two days earlier, ODonnell received a hang-up
call. Using the *69 feature on her telephone, ODonnell learned that the call
originated from a number that ODonnell recognized as Patanes home telephone.
This call violated Patanes restraining order, ODonnell stated, and she showed
Officer Fox a copy of the order. ODonnell 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 ODonnells 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
ODonnell prior to Patanes arrest, which Patane asserts would have revealed that
ODonnell 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
ODonnell, and the two arranged to go to Patanes 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 ODonnell 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 wasnt 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 Patanes 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 courts probable cause determination, we consider
the evidence in a light most favorable to the district courts legal determinations,
and review the courts findings of historical fact for clear error. Absent any
finding of fact, we will uphold the courts 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 courts 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 ODonnells allegation
that a call had been placed from Patanes 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 ODonnells credibility prior to the
arrest, the failure to corroborate ODonnells accusations apart from Detective
Benners 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 Patanes telephone. The court
also noted that [i]ts 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 ODonnell, and that ODonnell 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 its 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 victimwitness 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 childrens 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 ODonnell 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 ODonnell 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
ODonnell after he threatened to kill her, that ODonnell knew that Patane carried

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 childrens accusations established probable cause. 776 F.2d at 144950.
1

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a gun and kept a list of persons (including police officers) he wanted to kill, and
that ODonnell feared that Patane would kill her. Admittedly, ODonnell 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 ODonnells
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 ODonnell, 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 Patanes arrest was supported by probable
cause to believe that Patane had violated the domestic violence restraining order. 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 Governments
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 Patanes 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) (officers 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 courts 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...)
2

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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 Patanes 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

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

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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 suspects
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 respondents 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 Courts 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.
Miranda nonetheless applied because it was issued prior to Tuckers 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.
3

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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 suspects 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 prosecutions 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 Tuckers 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 accuseds
own voluntary testimony. As in Tucker, the absence of any
coercion or improper tactics undercuts the twin
rationalestrustworthiness and deterrencefor 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
defendants 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]odays 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

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.
4

This reading of Orozco is reinforced by the Courts 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 Elstads 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 prosecutions case in chief, does not
require that the statements and their fruits be discarded as inherently tainted.);
id. at 308 (stating that Tuckers 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 accuseds own voluntary testimony). 6 These passages,
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.
5

We also recognize that Justice OConnor argued that the physical fruits
of a Miranda violation were not subject to Wong Sun suppression in her preElstad concurrence in New York v. Quarles, 467 U.S. 649, 665-72 (1984)
(OConnor, 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...)
6

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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)
subsequent opinion of the Court. Justice OConnor joined the majority opinion in
Dickerson.
6

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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 Governments 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 Courts holding in Dickerson seems to have
altered this general rule [that fruits of a Miranda violation need not be
suppressed], the state courts 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
courts 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 Mirandas deterrent purpose. However, we part company with
the First Circuit in the application of that standard, because we conclude that
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Mirandas 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 suspects statements made
during custodial interrogation can be admitted into evidence.
In addition, we are of opinion that the Courts reference to and
reaffirmation of Mirandas 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 Dickersons
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 Mirandas
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
Commn, 378 U.S. 52, 79 (1964)); Kastigar v. United States, 406 U.S. 441, 46061 (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
Elstad also stated that a second way that Fourth Amendment violations
are different from Miranda violations is that only the former are constitutional
(continued...)
7

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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, Elstads 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 crossexamination).
One could argue that further narrowing of the pure fruits doctrine in the
Miranda context narrowing beyond that already effectuated by the holdings of
(...continued)
violations. 470 U.S. at 305-07. This difference, of course, is one that Dickerson
itself rejects.
7

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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 Dickersons 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
Tuckers narrowing would seem no longer applicable because it appeared
to establish an exception only for questioning that pre-dated Miranda itself.
Elstads 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.
8

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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 [postwarning] 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 Mirandas 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 Patanes 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 suspects
Miranda rights in order to procure derivative evidence. E.g., United States v.
Orso, 234 F.3d 436, 441 (9th Cir. 2000), affd in part, revd 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), affd, 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 Governments introduction of the Glock found in the
defendants bedroom on the shelf as a result of his unconstitutionally obtained
confession. If anything, to adopt the Governments 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 Dickersons
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 Circuits 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 Faulkinghams 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
Mirandas 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 defendants 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 Faulkinghams 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 courts 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.
Faulkinghams claim, taking all the surrounding
circumstances into account, simply does not tip the balance
toward a strong need for deterrence. Faulkinghams 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 Faulkinghams 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 Faulkinghams 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
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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 Faulkinghams view that there is a strong need for
deterrence only where the officers 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 individuals 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

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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 rules
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 Courts 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-bycase voluntariness inquiries Miranda was designed to prevent [because] the easeof-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 Circuits conclusion that the Wong
Sun fruits doctrine may apply to the physical fruits of Miranda violations, but we
decline to adopt Faulkinghams 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 Mirandas deterrent purpose would
not be vindicated meaningfully by suppression only of Patanes 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 courts order
suppressing the gun. 9

Defendant-Appellees Motion to Clarify Statements Made in DefendantAppellees Previously-Filed Answer Brief is denied as moot.
9

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