Missouri v. Seibert

600 OCTOBER TERM, 2003

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MISSOURI v. SEIBERT

certiorari to the supreme court of missouri No. 02–1371. Argued December 9, 2003—Decided June 28, 2004 Respondent Seibert feared charges of neglect when her son, afflicted with cerebral palsy, died in his sleep. She was present when two of her sons and their friends discussed burning her family’s mobile home to conceal the circumstances of her son’s death. Donald, an unrelated mentally ill 18-year-old living with the family, was left to die in the fire, in order to avoid the appearance that Seibert’s son had been unattended. Five days later, the police arrested Seibert, but did not read her her rights under Miranda v. Arizona, 384 U. S. 436. At the police station, Officer Hanrahan questioned her for 30 to 40 minutes, obtaining a confession that the plan was for Donald to die in the fire. He then gave her a 20-minute break, returned to give her Miranda warnings, and obtained a signed waiver. He resumed questioning, confronting Seibert with her prewarning statements and getting her to repeat the information. Seibert moved to suppress both her prewarning and postwarning state- ments. Hanrahan testified that he made a conscious decision to with- hold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given. The Dis- trict Court suppressed the prewarning statement but admitted the post- warning one, and Seibert was convicted of second-degree murder. The Missouri Court of Appeals affirmed, finding the case indistinguishable from Oregon v. Elstad, 470 U. S. 298, in which this Court held that a suspect’s unwarned inculpatory statement made during a brief exchange at his house did not make a later, fully warned inculpatory statement inadmissible. In reversing, the State Supreme Court held that, because the interrogation was nearly continuous, the second statement, which was clearly the product of the invalid first statement, should be sup- pressed; and distinguished Elstad on the ground that the warnings had not intentionally been withheld there. Held: The judgment is affirmed. 93 S. W. 3d 700, affirmed. Justice Souter, joined by Justice Stevens, Justice Ginsburg, and Justice Breyer, concluded that, because the midstream recitation of warnings after interrogation and unwarned confession in this case could not comply with Miranda’s constitutional warning requirement, Seibert’s postwarning statements are inadmissible. Pp. 607–617.

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(a) Failure to give Miranda warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any state- ments obtained. Conversely, giving the warnings and getting a waiver generally produces a virtual ticket of admissibility, with most litigation over voluntariness ending with valid waiver finding. This common con- sequence would not be at all common unless Miranda warnings were customarily given under circumstances that reasonably suggest a real choice between talking and not talking. Pp. 607–609. (b) Dickerson v. United States, 530 U. S. 428, reaffirmed Miranda, holding that Miranda’s constitutional character prevailed against a fed- eral statute that sought to restore the old regime of giving no warnings and litigating most statements’ voluntariness. The technique of inter- rogating in successive, unwarned and warned phases raises a new chal- lenge to Miranda. Pp. 609–611. (c) When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and the question-first strategy. Miranda addressed “interrogation practices . . . likely . . . to disable [an individual] from making a free and rational choice” about speaking, 384 U. S., at 464–465, and held that a suspect must be “ade- quately and effectively” advised of the choice the Constitution guaran- tees, id., at 467. Question-first’s object, however, is to render Miranda warnings ineffective by waiting to give them until after the suspect has already confessed. The threshold question in this situation is whether it would be reasonable to find that the warnings could function “effec- tively” as Miranda requires. There is no doubt about the answer. By any objective measure, it is likely that warnings withheld until after interrogation and confession will be ineffective in preparing a suspect for successive interrogation, close in time and similar in content. The manifest purpose of question-first is to get a confession the suspect would not make if he understood his rights at the outset. When the warnings are inserted in the midst of coordinated and continuing inter- rogation, they are likely to mislead and “deprive a defendant of knowl- edge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U. S. 412, 424. And it would be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle. Pp. 611–614. (d) Elstad does not authorize admission of a confession repeated under the question-first strategy. The contrast between Elstad and this case reveals relevant facts bearing on whether midstream Miranda warnings could be effective to accomplish their object: the completeness and detail of the questions and answers to the first round of questioning,

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the two statements’ overlapping content, the timing and setting of the first and second rounds, the continuity of police personnel, and the de- gree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, the station house questioning could sensibly be seen as a distinct experience from a short conversation at home, and thus the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admis- sion. Here, however, the unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and man- aged with psychological skill. The warned phase proceeded after only a 15-to-20 minute pause, in the same place and with the same officer, who did not advise Seibert that her prior statement could not be used against her. These circumstances challenge the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes could not have understood them to convey a mes- sage that she retained a choice about continuing to talk. Pp. 614–617. Justice Kennedy concluded that when a two-step interrogation technique is used, postwarning statements related to prewarning state- ments must be excluded unless curative measures are taken before the postwarning statement is made. Not every violation of Miranda v. Arizona, 384 U. S. 436, requires suppression of the evidence obtained. Admission may be proper when it would further important objectives without compromising Miranda’s central concerns. See, e. g., Harris v. New York, 401 U. S. 222. Oregon v. Elstad, 470 U. S. 298, reflects a balanced and pragmatic approach to enforcing the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required, and may not plan to question the suspect or may be waiting for a more appropriate time. Suppressing postwarning statements under such circumstances would serve “neither the general goal of de- terring improper police conduct nor the Fifth Amendment goal of assur- ing trustworthy evidence.” Elstad, supra, at 308. In contrast, the technique used in this case distorts Miranda’s meaning and furthers no legitimate countervailing interest. The warning was withheld to ob- scure both the practical and legal significance of the admonition when finally given. That the interrogating officer relied on respondent’s pre- warning statement to obtain the postwarning one used at trial shows the temptations for abuse inherent in the two-step technique. Refer- ence to the prewarning statement was an implicit, and false, suggestion that the mere repetition of the earlier statement was not independently incriminating. The Miranda rule would be frustrated were the police permitted to undermine its meaning and effect. However, the plural- ity’s test—that whenever a two-stage interview occurs, the postwarning statement’s admissibility depends on whether the midstream warnings

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could have been effective enough to accomplish their object given the case’s specific facts—cuts too broadly. The admissibility of postwarning statements should continue to be governed by Elstad’s principles unless the deliberate two-step strategy is employed. Then, the postwarning statements must be excluded unless curative measures are taken before they were made. Such measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the im- port and effect of the Miranda warning and waiver. For example, a substantial break in time and circumstances between the prewarning statement and the warning may suffice in most instances, as may an additional warning explaining the likely inadmissibility of the prewarn- ing statement. Because no curative steps were taken in this case, the postwarning statements are inadmissible and the conviction cannot stand. Pp. 618–622.

Souter, J., announced the judgment of the Court and delivered an opin- ion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, post, p. 617. Kennedy, J., filed an opinion concurring in the judgment, post, p. 618. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined, post, p. 622.

Karen K. Mitchell, Chief Deputy Attorney General of Mis- souri, argued the cause for petitioner. With her on the briefs were Jeremiah W. (Jay) Nixon, Attorney General, James R. Layton, State Solicitor, and Shaun J. Mackelprang and Karen P. Hess, Assistant Attorneys General. Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attor- ney General Wray, Deputy Solicitor General Dreeben, and Jonathan L. Marcus. Amy M. Bartholow argued the cause and filed a brief for respondent.*

*Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Jonathan L. Abram, Christopher T. Hand- man, William H. Johnson, Steven R. Shapiro, and Lisa Kemler; and for Michael R. Bromwich et al. by George A. Cumming, Jr., Charles D. Weis- selberg, Stephen J. Schulhofer, Kirsten D. Levingston, Frederick A. O. Schwarz, Jr., and Tom Gerety.

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Justice Souter announced the judgment of the Court and delivered an opinion, in which Justice Stevens, Jus- tice Ginsburg, and Justice Breyer join. This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Al- though such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, 384 U. S. 436 (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissi- bility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned con- fession could not effectively comply with Miranda’s constitu- tional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.

I Respondent Patrice Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert’s son Darian and a friend set the fire, and Donald died. Five days later, the police awakened Seibert at 3 a.m. at a hospital where Darian was being treated for burns. In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, Officer Richard Hanrahan that he re- frain from giving Miranda warnings. After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes, Officer Hanrahan questioned her

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without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating “Donald was also to die in his sleep.” App. 59 (internal quotation marks omitted). After Seibert finally admitted she knew Donald was meant to die in the fire, she was given a 20-minute coffee and cigarette break. Officer Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her. He resumed the questioning with “Ok, ’trice, we’ve been talking for a little while about what hap- pened on Wednesday the twelfth, haven’t we?” App. 66, and confronted her with her prewarning statements: Hanrahan: “Now, in discussion you told us, you told us that there was a[n] understanding about Donald.” Seibert: “Yes.” Hanrahan: “Did that take place earlier that morning?” Seibert: “Yes.” Hanrahan: “And what was the understanding about Donald?” Seibert: “If they could get him out of the trailer, to take him out of the trailer.” Hanrahan: “And if they couldn’t?” Seibert: “I, I never even thought about it. I just fig- ured they would.” Hanrahan: “ ’Trice, didn’t you tell me that he was sup- posed to die in his sleep?” Seibert: “If that would happen, ’cause he was on that new medicine, you know . . . .” Hanrahan: “The Prozac? And it makes him sleepy. So he was supposed to die in his sleep?” Seibert: “Yes.” Id., at 70. After being charged with first-degree murder for her role in Donald’s death, Seibert sought to exclude both her pre- warning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a “conscious

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decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.” App. 31–34. He acknowledged that Seibert’s ultimate statement was “largely a repeat of information . . . obtained” prior to the warning. Id., at 30. The trial court suppressed the prewarning statement but admitted the responses given after the Miranda recitation. A jury convicted Seibert of second-degree murder. On ap- peal, the Missouri Court of Appeals affirmed, treating this case as indistinguishable from Oregon v. Elstad, 470 U. S. 298 (1985). No. 23729, 2002 WL 114804 (Jan. 30, 2002) (not released for publication). The Supreme Court of Missouri reversed, holding that “[i]n the circumstances here, where the interrogation was nearly continuous, . . . the second statement, clearly the product of the invalid first statement, should have been sup- pressed.” 93 S. W. 3d 700, 701 (2002) (en banc). The court distinguished Elstad on the ground that warnings had not intentionally been withheld there, 93 S. W. 3d, at 704, and reasoned that “Officer Hanrahan’s intentional omission of a Miranda warning was intended to deprive Seibert of the op- portunity knowingly and intelligently to waive her Miranda rights,” id., at 706. Since there were “no circumstances that would seem to dispel the effect of the Miranda violation,” the court held that the postwarning confession was involun- tary and therefore inadmissible. Ibid. To allow the police to achieve an “end run” around Miranda, the court ex- plained, would encourage Miranda violations and diminish Miranda’s role in protecting the privilege against self- incrimination. 93 S. W. 3d, at 706–707. Three judges dis- sented, taking the view that Elstad applied even though the police intentionally withheld Miranda warnings before the initial statement, and believing that “Seibert’s unwarned re- sponses to Officer Hanrahan’s questioning did not prevent

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her from waiving her rights and confessing.” 93 S. W. 3d, at 708 (opinion of Benton, J.). We granted certiorari, 538 U. S. 1031 (2003), to resolve a split in the Courts of Appeals. Compare United States v. Gale, 952 F. 2d 1412, 1418 (CADC 1992) (while “deliberate ‘end run’ around Miranda” would provide cause for suppres- sion, case involved no conduct of that order); United States v. Carter, 884 F. 2d 368, 373 (CA8 1989) (“Elstad did not go so far as to fashion a rule permitting this sort of end run around Miranda”), with United States v. Orso, 266 F. 3d 1030, 1034–1039 (CA9 2001) (en banc) (rejecting argument that “tainted fruit” analysis applies because deliberate with- holding of Miranda warnings constitutes an “improper tac- tic”); United States v. Esquilin, 208 F. 3d 315, 319–321 (CA1 2000) (similar). We now affirm.

II “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompe- tent because not voluntary, the issue is controlled by that portion of the Fifth Amendment . . . commanding that no person ‘shall be compelled in any criminal case to be a wit- ness against himself.’ ” Bram v. United States, 168 U. S. 532, 542 (1897). A parallel rule governing the admissibility of confessions in state courts emerged from the Due Process Clause of the Fourteenth Amendment, see, e. g., Brown v. Mississippi, 297 U. S. 278 (1936), which governed state cases until we concluded in Malloy v. Hogan, 378 U. S. 1, 8 (1964), that “[t]he Fourteenth Amendment secures against state in- vasion the same privilege that the Fifth Amendment guaran- tees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.” In unifying the Fifth and Fourteenth Amendment voluntariness tests, Malloy “made clear what had already become apparent—that the substantive and procedural safe-

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guards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the pol- icies embedded in the privilege” against self-incrimination. Miranda, 384 U. S., at 464. In Miranda, we explained that the “voluntariness doctrine in the state cases . . . encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice,” id., at 464–465. We appreciated the difficulty of judicial enquiry post hoc into the circumstances of a police interrogation, Dickerson v. United States, 530 U. S. 428, 444 (2000), and recognized that “the coercion inherent in custodial interroga- tion blurs the line between voluntary and involuntary state- ments, and thus heightens the risk” that the privilege against self-incrimination will not be observed, id., at 435. Hence our concern that the “traditional totality-of-the- circumstances” test posed an “unacceptably great” risk that involuntary custodial confessions would escape detection. Id., at 442. Accordingly, “to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause,” Chavez v. Martinez, 538 U. S. 760, 790 (2003) (Kennedy, J., concurring in part and dissenting in part), this Court in Miranda con- cluded that “the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored,” 384 U. S., at 467. Miranda conditioned the admissibility at trial of any custodial confession on warn- ing a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial ques- tioning generally requires exclusion of any statements ob- tained.1 Conversely, giving the warnings and getting a

1 “[T]he burden of showing admissibility rests, of course, on the prosecu- tion.” Brown v. Illinois, 422 U. S. 590, 604 (1975). The prosecution bears the burden of proving, at least by a preponderance of the evidence, the Miranda waiver, Colorado v. Connelly, 479 U. S. 157, 169 (1986), and the voluntariness of the confession, Lego v. Twomey, 404 U. S. 477, 489 (1972).

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waiver has generally produced a virtual ticket of admissibil- ity; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. See Berkemer v. McCarty, 468 U. S. 420, 433, n. 20 (1984) (“[C]ases in which a defendant can make a colorable argument that a self- incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare”). To point out the obvious, this common consequence would not be common at all were it not that Miranda warnings are customarily given under circum- stances allowing for a real choice between talking and re- maining silent. III There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntari- ness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seek- ing to restore that old regime, 18 U. S. C. § 3501, although the Act lay dormant for years until finally invoked and chal- lenged in Dickerson v. United States, supra. Dickerson re- affirmed Miranda and held that its constitutional character prevailed against the statute. The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Al- though we have no statistics on the frequency of this prac- tice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other de- partments in which he had worked. App. 31–32. Consist- ently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation. . . . At any point during the pre-Miranda in-

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terrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.” Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001–Dec. 2003) (available in Clerk of Court’s case file) (hereinafter Police Law Manual) (emphasis in original).2 2 Emphasizing the impeachment exception to the Miranda rule ap- proved by this Court, Harris v. New York, 401 U. S. 222 (1971), some train- ing programs advise officers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights. See, e. g., Po- lice Law Manual 83 (“There is no need to give a Miranda warning before asking questions if . . . the answers given . . . will not be required by the prosecutor during the prosecution’s case-in-chief ”); California Commission on Peace Officer Standards and Training, Video Training Programs for California Law Enforcement, Miranda: Post-Invocation Questioning (broadcast July 11, 1996) (“We . . . have been encouraging you to continue to question a suspect after they’ve invoked their Miranda rights”); D. Zulawski & D. Wicklander, Practical Aspects of Interview and Interro- gation 50–51 (2d ed. 2002) (describing the practice of “[b]eachheading” as useful for impeachment purpose (emphasis deleted)); see also Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 110, 132–139 (1998) (collecting California training materials encouraging questioning “outside Miranda”). This training is reflected in the reported cases involving deliberate ques- tioning after invocation of Miranda rights. See, e. g., California Attor- neys for Criminal Justice v. Butts, 195 F. 3d 1039, 1042–1044 (CA9 1999); Henry v. Kernan, 197 F. 3d 1021, 1026 (CA9 1999); People v. Neal, 31 Cal. 4th 63, 68, 72 P. 3d 280, 282 (2003); People v. Peevy, 17 Cal. 4th 1184, 1189, 953 P. 2d 1212, 1215 (1998). Scholars have noted the growing trend of such practices. See, e. g., Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the Stationhouse After Dickerson, 99 Mich. L. Rev. 1121, 1123–1154 (2001). It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e. g., C. O’Hara & G. O’Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting cus- todial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interroga- tion and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buck- ley) (same); J. Reid & Assoc., Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question-first tactic, because they understand that Oregon v. Elstad,

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The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases de- scribing its use, sometimes in obedience to departmental policy.3 IV When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed “interrogation prac- tices . . . likely . . . to disable [an individual] from making a free and rational choice” about speaking, 384 U. S., at 464– 465, and held that a suspect must be “adequately and effec- tively” advised of the choice the Constitution guarantees, id., at 467. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed. Just as “no talismanic incantation [is] required to satisfy [Miranda’s] strictures,” California v. Prysock, 453 U. S. 355, 359 (1981) (per curiam), it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’ ” Duckworth v. Eagan, 492 U. S. 195, 203 (1989) (quoting Prysock, supra, at 361). The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effec-

470 U. S. 298 (1985), involved an officer’s good-faith failure to warn. See, e. g., Inbau, Reid, & Buckley 241 (Elstad’s “facts as well as [its] specific holding” instruct that “where an interrogator has failed to administer the Miranda warnings in the mistaken belief that, under the circumstances of the particular case, the warnings were not required, . . . corrective measures . . . salvage an interrogation opportunity”). 3 See, e. g., United States v. Orso, 266 F. 3d 1030, 1032–1033 (CA9 2001) (en banc); Pope v. Zenon, 69 F. 3d 1018, 1023–1024 (CA9 1995), overruled by Orso, supra; Cooper v. Dupnik, 963 F. 2d 1220, 1224–1227, 1249 (CA9 1992) (en banc); United States v. Carter, 884 F. 2d 368, 373 (CA9 1989); United States v. Esquilin, 208 F. 3d 315, 317 (CA1 2000); Davis v. United States, 724 A. 2d 1163, 1165–1166 (D. C. App. 1998).

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tively” as Miranda requires. Could the warnings effec- tively advise the suspect that he had a real choice about giv- ing an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justi- fication for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.4 There is no doubt about the answer that proponents of question-first give to this question about the effectiveness of

4 Respondent Seibert argues that her second confession should be ex- cluded from evidence under the doctrine known by the metaphor of the “fruit of the poisonous tree,” developed in the Fourth Amendment context in Wong Sun v. United States, 371 U. S. 471 (1963): evidence otherwise admissible but discovered as a result of an earlier violation is excluded as tainted, lest the law encourage future violations. But the Court in Elstad rejected the Wong Sun fruits doctrine for analyzing the admissibility of a subsequent warned confession following “an initial failure . . . to adminis- ter the warnings required by Miranda.” Elstad, 470 U. S., at 300. In Elstad, “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will,” did not “so tain[t] the investiga- tory process that a subsequent voluntary and informed waiver is ineffec- tive for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subse- quent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id., at 309. Elstad held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id., at 318. In a se- quential confession case, clarity is served if the later confession is ap- proached by asking whether in the circumstances the Miranda warnings given could reasonably be found effective. If yes, a court can take up the standard issues of voluntary waiver and voluntary statement; if no, the subsequent statement is inadmissible for want of adequate Miranda warn- ings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning.

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warnings given only after successful interrogation, and we think their answer is correct. By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warn- ings until after interrogation succeeds in eliciting a confes- sion, the warnings will be ineffective in preparing the sus- pect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the af- termath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to re- main silent, let alone persist in so believing once the police began to lead him over the same ground again.5 A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable deci- sion. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly ex- cepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Mi- randa warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “de- 5 It bears emphasizing that the effectiveness Miranda assumes the warnings can have must potentially extend through the repeated interro- gation, since a suspect has a right to stop at any time. It seems highly unlikely that a suspect could retain any such understanding when the in- terrogator leads him a second time through a line of questioning the sus- pect has already answered fully. The point is not that a later unknowing or involuntary confession cancels out an earlier, adequate warning; the point is that the warning is unlikely to be effective in the question-first sequence we have described.

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priv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U. S. 412, 424 (1986). By the same token, it would ordinarily be unrealis- tic to treat two spates of integrated and proximately con- ducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.

V Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad, 470 U. S. 298 (1985), but the argument disfigures that case. In Elstad, the police went to the young suspect’s house to take him into custody on a charge of burglary. Before the arrest, one officer spoke with the suspect’s mother, while the other one joined the suspect in a “brief stop in the living room,” id., at 315, where the officer said he “felt” the young man was involved in a burglary, id., at 301 (internal quota- tion marks omitted). The suspect acknowledged he had been at the scene. Ibid. This Court noted that the pause in the living room “was not to interrogate the suspect but to notify his mother of the reason for his arrest,” id., at 315, and described the incident as having “none of the earmarks of coercion,” id., at 316. The Court, indeed, took care to mention that the officer’s initial failure to warn was an “over- sight” that “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interroga- tion’ or . . . may simply have reflected . . . reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent’s mother.” Id., at 315–316. At the outset of a later and systematic station house interrogation going well beyond the scope of the laconic prior admission, the suspect was given Miranda warnings and made a full confession. Elstad, supra, at 301, 314–315. In holding the

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second statement admissible and voluntary, Elstad rejected the “cat out of the bag” theory that any short, earlier admis- sion, obtained in arguably innocent neglect of Miranda, de- termined the character of the later, warned confession, El- stad, 470 U. S., at 311–314; on the facts of that case, the Court thought any causal connection between the first and second responses to the police was “speculative and attenuated,” id., at 313. Although the Elstad Court expressed no explicit conclusion about either officer’s state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that par- ticular case, but posing no threat to warn-first practice gen- erally. See Elstad, supra, at 309 (characterizing the officers’ omission of Miranda warnings as “a simple failure to admin- ister the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will”); 470 U. S., at 318, n. 5 (Jus- tice Brennan’s concern in dissent that Elstad would invite question-first practice “distorts the reasoning and holding of our decision, but, worse, invites trial courts and prosecutors to do the same”). The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable per- son in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda

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warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to under- mine the Miranda warnings.6 The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if any- thing, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the proba- ble misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used.7 Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been ag- gravated by the way Officer Hanrahan set the scene by say- ing “we’ve been talking for a little while about what hap- pened on Wednesday the twelfth, haven’t we?” App. 66. The impression that the further questioning was a mere con- tinuation of the earlier questions and responses was fostered by references back to the confession already given. It 6 Because the intent of the officer will rarely be as candidly admitted as it was here (even as it is likely to determine the conduct of the interroga- tion), the focus is on facts apart from intent that show the question-first tactic at work. 7 We do not hold that a formal addendum warning that a previous state- ment could not be used would be sufficient to change the character of the question-first procedure to the point of rendering an ensuing statement admissible, but its absence is clearly a factor that blunts the efficacy of the warnings and points to a continuing, not a new, interrogation.

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would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.8

VI Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Mi- randa’s purpose of reducing the risk that a coerced confes- sion would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible. The judgment of the Supreme Court of Missouri is affirmed. It is so ordered.

Justice Breyer, concurring. In my view, the following simple rule should apply to the two-stage interrogation technique: Courts should exclude the “fruits” of the initial unwarned questioning unless the failure to warn was in good faith. Cf. Oregon v. Elstad, 470 U. S. 298, 309, 318, n. 5 (1985); United States v. Leon, 468 U. S. 897 (1984). I believe this is a sound and workable ap- proach to the problem this case presents. Prosecutors and judges have long understood how to apply the “fruits” ap- proach, which they use in other areas of law. See Wong Sun v. United States, 371 U. S. 471 (1963). And in the workaday

8 Because we find that the warnings were inadequate, there is no need to assess the actual voluntariness of the statement.

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world of criminal law enforcement the administrative sim- plicity of the familiar has significant advantages over a more complex exclusionary rule. Cf. post, at 628–629 (O’Connor, J., dissenting). I believe the plurality’s approach in practice will function as a “fruits” test. The truly “effective” Miranda warnings on which the plurality insists, ante, at 615, will occur only when certain circumstances—a lapse in time, a change in lo- cation or interrogating officer, or a shift in the focus of the questioning—intervene between the unwarned questioning and any postwarning statement. Cf. Taylor v. Alabama, 457 U. S. 687, 690 (1982) (evidence obtained subsequent to a constitutional violation must be suppressed as “fruit of the poisonous tree” unless “intervening events break the causal connection”). I consequently join the plurality’s opinion in full. I also agree with Justice Kennedy’s opinion insofar as it is con- sistent with this approach and makes clear that a good-faith exception applies. See post, at 622 (opinion concurring in judgment).

Justice Kennedy, concurring in the judgment. The interrogation technique used in this case is designed to circumvent Miranda v. Arizona, 384 U. S. 436 (1966). It undermines the Miranda warning and obscures its meaning. The plurality opinion is correct to conclude that statements obtained through the use of this technique are inadmissible. Although I agree with much in the careful and convincing opinion for the plurality, my approach does differ in some respects, requiring this separate statement. The Miranda rule has become an important and accepted element of the criminal justice system. See Dickerson v. United States, 530 U. S. 428 (2000). At the same time, not every violation of the rule requires suppression of the evi- dence obtained. Evidence is admissible when the central

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Kennedy, J., concurring in judgment

concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction. Thus, we have held that state- ments obtained in violation of the rule can be used for im- peachment, so that the truth-finding function of the trial is not distorted by the defense, see Harris v. New York, 401 U. S. 222 (1971); that there is an exception to protect counter- vailing concerns of public safety, see New York v. Quarles, 467 U. S. 649 (1984); and that physical evidence obtained in reliance on statements taken in violation of the rule is admis- sible, see United States v. Patane, post, p. 630. These cases, in my view, are correct. They recognize that admission of evidence is proper when it would further important ob- jectives without compromising Miranda’s central concerns. Under these precedents, the scope of the Miranda suppres- sion remedy depends on a consideration of those legitimate interests and on whether admission of the evidence under the circumstances would frustrate Miranda’s central con- cerns and objectives. Oregon v. Elstad, 470 U. S. 298 (1985), reflects this ap- proach. In Elstad, a suspect made an initial incriminating statement at his home. The suspect had not received a Miranda warning before making the statement, apparently because it was not clear whether the suspect was in custody at the time. The suspect was taken to the station house, where he received a proper warning, waived his Miranda rights, and made a second statement. He later argued that the postwarning statement should be suppressed because it was related to the unwarned first statement, and likely induced or caused by it. The Court held that, although a Miranda violation made the first statement inadmissible, the postwarning statements could be introduced against the ac- cused because “neither the general goal of deterring im- proper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppres-

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sion” given the facts of that case. Elstad, supra, at 308 (cit- ing Michigan v. Tucker, 417 U. S. 433, 445 (1974)). In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are re- quired. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled inves- tigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. See Elstad, 470 U. S., at 309 (“It is an unwarranted extension of Miranda to hold that a simple fail- ure to administer the warnings . . . so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period”). That approach would serve “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 . . . testimony.” Id., at 308. This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda. The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice Souter points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory state- ments have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Mi-

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Kennedy, J., concurring in judgment

randa offers and does not serve any legitimate objectives that might otherwise justify its use. Further, the interrogating officer here relied on the de- fendant’s prewarning statement to obtain the postwarning statement used against her at trial. The postwarning inter- view resembled a cross-examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. See App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”). This shows the temptations for abuse inherent in the two- step technique. Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false. The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow po- lice to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Bur- bine, 475 U. S. 412, 423–424 (1986). When an interrogator uses this deliberate, two-step strategy, predicated upon vio- lating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps. The plurality concludes that whenever a two-stage inter- view occurs, admissibility of the postwarning statement should depend on “whether [the] Miranda warnings deliv- ered midstream could have been effective enough to accom- plish their object” given the specific facts of the case. Ante, at 615. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations.

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Ante, at 615–617. In my view, this test cuts too broadly. Miranda’s clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity. Cf. Berkemer v. McCarty, 468 U. S. 420, 430 (1984). I would apply a narrower test applica- ble only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning. The admissibility of postwarning statements should con- tinue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliber- ate two-step strategy has been used, postwarning state- ments that are related to the substance of prewarning state- ments must be excluded unless curative measures are taken before the postwarning statement is made. Curative meas- ures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warn- ing may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Cf. Westover v. United States, decided with Miranda v. Arizona, 384 U. S. 436 (1966). Alternatively, an additional warning that ex- plains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are in- admissible and the conviction cannot stand. For these reasons, I concur in the judgment of the Court.

Justice O’Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting. The plurality devours Oregon v. Elstad, 470 U. S. 298 (1985), even as it accuses petitioner’s argument of “dis- figur[ing]” that decision. Ante, at 614. I believe that we

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O’Connor, J., dissenting

are bound by Elstad to reach a different result, and I would vacate the judgment of the Supreme Court of Missouri.

I On two preliminary questions I am in full agreement with the plurality. First, the plurality appropriately follows El- stad in concluding that Seibert’s statement cannot be held inadmissible under a “fruit of the poisonous tree” theory. Ante, at 612, n. 4 (internal quotation marks omitted). Sec- ond, the plurality correctly declines to focus its analysis on the subjective intent of the interrogating officer.

A This Court has made clear that there simply is no place for a robust deterrence doctrine with regard to violations of Miranda v. Arizona, 384 U. S. 436 (1966). See Dickerson v. United States, 530 U. S. 428, 441 (2000) (“Our decision in [Elstad]—refusing to apply the traditional ‘fruits’ doctrine developed in Fourth Amendment cases—. . . simply recog- nizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment”); Elstad, supra, at 306 (unlike the Fourth Amendment exclusionary rule, the “Miranda ex- clusionary rule . . . serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself ”); see also United States v. Patane, post, at 644–645 (Kennedy, J., con- curring in judgment) (refusal to suppress evidence obtained following an unwarned confession in Elstad, New York v. Quarles, 467 U. S. 649 (1984), and Harris v. New York, 401 U. S. 222 (1971), was based on “our recognition that the con- cerns underlying the Miranda . . . rule must be accommo- dated to other objectives of the criminal justice system”). Consistent with that view, the Court today refuses to apply the traditional “fruits” analysis to the physical fruit of a claimed Miranda violation. Patane, post, p. 630. The plu-

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rality correctly refuses to apply a similar analysis to testimo- nial fruits. Although the analysis the plurality ultimately espouses ex- amines the same facts and circumstances that a “fruits” anal- ysis would consider (such as the lapse of time between the two interrogations and change of questioner or location), it does so for entirely different reasons. The fruits analysis would examine those factors because they are relevant to the balance of deterrence value versus the “drastic and so- cially costly course” of excluding reliable evidence. Nix v. Williams, 467 U. S. 431, 442–443 (1984). The plurality, by contrast, looks to those factors to inform the psychological judgment regarding whether the suspect has been informed effectively of her right to remain silent. The analytical un- derpinnings of the two approaches are thus entirely distinct, and they should not be conflated just because they function similarly in practice. Cf. ante, at 617–618 (Breyer, J., concurring). B The plurality’s rejection of an intent-based test is also, in my view, correct. Freedom from compulsion lies at the heart of the Fifth Amendment, and requires us to assess whether a suspect’s decision to speak truly was voluntary. Because voluntariness is a matter of the suspect’s state of mind, we focus our analysis on the way in which suspects experience interrogation. See generally Miranda, 384 U. S., at 455 (summarizing psychological tactics used by po- lice that “undermin[e]” the suspect’s “will to resist,” and not- ing that “the very fact of custodial interrogation . . . trades on the weakness of individuals”); id., at 467 (“[I]n-custody interrogation of persons suspected or accused of crime con- tains inherently compelling pressures which work to under- mine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely”). Thoughts kept inside a police officer’s head cannot affect that experience. See Moran v. Burbine, 475 U. S. 412, 422

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O’Connor, J., dissenting

(1986) (“Events occurring outside of the presence of the sus- pect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right”). In Moran, an attorney hired by the suspect’s sister had been trying to contact the suspect and was told by the police, falsely, that they would not begin an interrogation that night. Id., at 416–418. The suspect was not aware that an attorney had been hired for him. Id., at 417. We rejected an analysis under which a different result would obtain for “the same defendant, armed with the same information and confronted with precisely the same police conduct” if something not known to the defendant—such as the fact that an attorney was attempting to contact him— had been different. Id., at 422. The same principle applies here. A suspect who experienced exactly the same interro- gation as Seibert, save for a difference in the undivulged, subjective intent of the interrogating officer when he failed to give Miranda warnings, would not experience the interro- gation any differently. “[W]hether intentional or inadver- tent, the state of mind of the police is irrelevant to the ques- tion of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropri- ate, even deliberate deception of an attorney could not possi- bly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.” 475 U. S., at 423. Cf. Stansbury v. California, 511 U. S. 318, 324–325 (1994) (per curiam) (police officer’s subjective intent is irrel- evant to whether suspect is in custody for Miranda pur- poses; “one cannot expect the person under interrogation to probe the officer’s innermost thoughts”). Because the isolated fact of Officer Hanrahan’s intent could not have had any bearing on Seibert’s “capacity to compre- hend and knowingly relinquish” her right to remain silent, Moran, supra, at 422, it could not by itself affect the volun- tariness of her confession. Moreover, recognizing an excep- tion to Elstad for intentional violations would require focus-

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ing constitutional analysis on a police officer’s subjective intent, an unattractive proposition that we all but uniformly avoid. In general, “we believe that ‘sending state and fed- eral courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources.’ ” United States v. Leon, 468 U. S. 897, 922, n. 23 (1984) (quoting Massachusetts v. Painten, 389 U. S. 560, 565 (1968) (White, J., dissenting)). This case presents the un- commonly straightforward circumstance of an officer openly admitting that the violation was intentional. But the in- quiry will be complicated in other situations probably more likely to occur. For example, different officers involved in an interrogation might claim different states of mind regard- ing the failure to give Miranda warnings. Even in the sim- ple case of a single officer who claims that a failure to give Miranda warnings was inadvertent, the likelihood of error will be high. See W. LaFave, Search and Seizure § 1.4(e), p. 124 (3d ed. 1996) (“[T]here is no reason to believe that courts can with any degree of success determine in which instances the police had an ulterior motive”). These evidentiary difficulties have led us to reject an intent-based test in several criminal procedure contexts. For example, in New York v. Quarles, one of the factors that led us to reject an inquiry into the subjective intent of the police officer in crafting a test for the “public safety” excep- tion to Miranda was that officers’ motives will be “largely unverifiable.” 467 U. S., at 656. Similarly, our opinion in Whren v. United States, 517 U. S. 806, 813–814 (1996), made clear that “the evidentiary difficulty of establishing subjec- tive intent” was one of the reasons (albeit not the principal one) for refusing to consider intent in Fourth Amendment challenges generally. For these reasons, I believe that the approach espoused by Justice Kennedy is ill advised. Justice Kennedy would extend Miranda’s exclusionary rule to any case in which the use of the “two-step interrogation technique” was “deliber-

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O’Connor, J., dissenting

ate” or “calculated.” Ante, at 622 (opinion concurring in judgment). This approach untethers the analysis from facts knowable to, and therefore having any potential directly to affect, the suspect. Far from promoting “clarity,” ibid., the approach will add a third step to the suppression inquiry. In virtually every two-stage interrogation case, in addition to addressing the standard Miranda and voluntariness ques- tions, courts will be forced to conduct the kind of difficult, state-of-mind inquiry that we normally take pains to avoid.

II The plurality’s adherence to Elstad, and mine to the plu- rality, end there. Our decision in Elstad rejected two lines of argument advanced in favor of suppression. The first was based on the “fruit of the poisonous tree” doctrine, discussed above. The second was the argument that the “lingering compulsion” inherent in a defendant’s having let the “cat out of the bag” required suppression. 470 U. S., at 311. The Court of Appeals of Oregon, in accepting the latter argu- ment, had endorsed a theory indistinguishable from the one today’s plurality adopts: “[T]he coercive impact of the uncon- stitutionally obtained statement remains, because in a de- fendant’s mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible.” State v. Elstad, 61 Ore. App. 673, 677, 658 P. 2d 552, 554 (1983). We rejected this theory outright. We did so not because we refused to recognize the “psychological impact of the sus- pect’s conviction that he has let the cat out of the bag,” but because we refused to “endo[w]” those “psychological ef- fects” with “constitutional implications.” 470 U. S., at 311. To do so, we said, would “effectively immuniz[e] a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver,” an immu- nity that “comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the indi-

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vidual’s interest in not being compelled to testify against himself.” Id., at 312. The plurality might very well think that we struck the balance between Fifth Amendment rights and law enforcement interests incorrectly in Elstad; but that is not normally a sufficient reason for ignoring the dictates of stare decisis. I would analyze the two-step interrogation procedure under the voluntariness standards central to the Fifth Amendment and reiterated in Elstad. Elstad commands that if Seibert’s first statement is shown to have been invol- untary, the court must examine whether the taint dissipated through the passing of time or a change in circumstances: “When a prior statement is actually coerced, the time that passes between confessions, the change in place of interroga- tions, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” Id., at 310 (citing Westover v. United States, decided with Miranda, 384 U. S., at 494). In addition, Sei- bert’s second statement should be suppressed if she showed that it was involuntary despite the Miranda warnings. El- stad, supra, at 318 (“The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements”). Although I would leave this analysis for the Missouri courts to conduct on remand, I note that, unlike the officers in Elstad, Officer Hanrahan referred to Seibert’s unwarned statement during the second part of the interroga- tion when she made a statement at odds with her unwarned confession. App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”); cf. Elstad, supra, at 316 (offi- cers did not “exploit the unwarned admission to pressure respondent into waiving his right to remain silent”). Such a tactic may bear on the voluntariness inquiry. Cf. Frazier v. Cupp, 394 U. S. 731, 739 (1969) (fact that police had falsely

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told a suspect that his accomplice had already confessed was “relevant” to the voluntariness inquiry); Moran, 475 U. S., at 423–424 (in discussing police deception, stating that simply withholding information is “relevant to the constitutional va- lidity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them”); Miranda, supra, at 476. * * * Because I believe that the plurality gives insufficient def- erence to Elstad and that Justice Kennedy places im- proper weight on subjective intent, I respectfully dissent.