Miranda Revisited

Thomas D. Petrowski

Dickerson v. United States

The Fifth Amendment of the U.S. Constitution states, in part, that "...no person shall be compelled in any criminal case to be a witness against himself." Like other Constitutional provisions, this requirement has "both the virtue of brevity and the vice of ambiguity." [1] This Fifth Amendment provision formed the basis of the Supreme Court's decision in Miranda v. Arizona. [2] Recently, in Dickerson v. United States, [3] the Supreme Court further defined the impact of the Miranda decision on the law of interrogations. This article examines the Dickerson decision and its implications for law enforcement.

THE ADMISSIBILITY OF CONFESSIONS BEFORE MIRANDA

Prior to Miranda, [4] the admissibility of incriminating statements of a suspect was evaluated under a voluntariness test, which developed under early common law. Eventually, courts began to recognize that certain confessions were not trust-worthy. [5] Although different standards were used to determine whether a confession was trustworthy, a confession generally was considered to be reliable only if made voluntarily. [6] In Hopt v. Utah, [7] the U.S. Supreme Court specifically adopted the common law rule that a voluntary confession is presumed to be reliable and, therefore, admissible. The Court held in Hopt that a confession is voluntary if not induced by threat or promise. [8]

Subsequent decisions of the U.S. Supreme Court recognized two constitutional rationales for the voluntariness requirement: the Fifth Amendment right against self-incrimination and the Due Process Clause of the Fourteenth Amendment. In 1897, the Supreme Court first asserted in Brain v. United States [9] that the Fifth Amendment privilege against self-incrimination was "but a crystallization" [10] of the common law rule that only voluntary confessions are admissible as evidence. Then, in 1936, the Supreme Court in Brown v. Mississippi" invoked the Due Process Clause as another constitutional basis for its requirement that a confession be made voluntarily. Thereafter, a confession was admissible only if voluntary within the meaning of the Due Process Clause. [12] The Supreme Court cases that followed Brown [13] refined the test into an inquiry that examined "whether a defendant's will was overborne" by the circumstances surrounding the giving of a confession and took into account "the totality of all the surrou nding circumstances--both the characteristics of the accused and the details of the interrogation." [14] The rule governing the admissibility of confessions in federal court remained the same for nearly 180 years: confessions were admissible at trial if made voluntarily.

THE MIRANDA DECISION

A New Approach

In 1966, the Supreme Court decided Miranda v. Arizona. In what is arguably its most controversial criminal law decision, [15] the Supreme Court, in a 5-4 decision, changed the focus of the inquiry to determine the admissibility of suspects' incriminating statements by announcing a new approach. Specifically, the Court made the case-by-case totality-of-the-circumstances voluntariness analysis a supplementary consideration and identified a new primary focus. The Court held that any statement arising from the custodial interrogation of a suspect is presumed involuntary and, therefore, inadmissible unless the police first provide the suspect with four specific warnings. [16] The four warnings are--[17]

1) that the suspect has the right to remain silent;

2) that any statements he makes can be used against him;

3) that he has the right to the presence of an attorney during questioning; and

4) that an attorney will be appointed for him if he cannot afford one.

The Court did not eliminate the voluntariness inquiry. Consequently, an incriminating statement may be prefaced by Miranda warnings but still be involuntary, which may result in suppression of the statement. That is, a law enforcement interrogator cannot physically threaten or otherwise inappropriately coerce a confession simply because the warnings have been given and waived. Likewise, a clearly voluntary statement that was not prefaced by complete Miranda warnings also may result in suppression. For a statement to be admissible under Miranda, it has to be both voluntary and prefaced by complete Miranda warnings, which are intelligently, knowingly, and voluntarily waived. The Court also has held that once individuals invoke their right to counsel, officers immediately must cease interrogation until counsel is present or the suspects initiate further contact and unequivocally communicate the desire to proceed without counsel. [18]

Passage of 18 U.S.C. [ss] 3501.

In Miranda, the Court said that "[w]e encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in appraising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the...safeguards must be observed." [19]

In 1968, 2 years after Miranda was decided, Congress accepted the Court's invitation to show "other procedures" and enacted 18 U.S.C. [ss] 3501 [20] (hereafter [ss] 3501). Through [ss] 3501, Congress attempted to overrule Miranda and reinstate the voluntariness test as the sole determinant for admissibility of confessions in federal court. The statute explicitly abandoned the requirement of pre-interrogation warnings in favor of an approach that considers such warnings only one factor in determining the voluntariness of a subject's incriminating statements. This left law enforcement agencies in a quandary over which rule to follow.

Despite the passage of [ss] 3501, law enforcement agencies generally followed the Miranda rule and ignored the statute. This is most likely due to the common approach of law enforcement agencies to take the more conservative option when such a conflict presents itself. The Department of Justice, through the seven administrations between Miranda and Dickerson, refused to argue 3501 and also followed the Miranda decision in confession cases.

THE DICKERSON CASE

The Facts

On January 24, 1997, an individual robbed the First Virginia Bank in Old Town, Alexandria, Virginia, of approximately $876. An eyewitness saw the robber exit the bank, run down the street, and get into a vehicle. Subsequent investigation into the bank robbery revealed that the getaway car was registered to Charles T. Dickerson of Takoma Park, Maryland. On January 27, 1997, FBI agents and an Alexandria police detective traveled to Dickerson's residence. The agents knocked on Dickerson's door and identified themselves. After a short conversation, an FBI agent asked Dickerson if he would accompany them to the FBI field office in Washington, D.C. Dickerson agreed. While in Dickerson's apartment, the agents saw evidence of the bank robbery in plain view.

At the FBI field office, Dickerson was interviewed by an FBI agent and a detective of the Alexandria Police Department. It is uncontested that at some point during the interview, Dickerson appropriately was given his Miranda warnings and that he knowingly and voluntarily waived his rights in writing. It also is uncontested that Dickerson confessed to the Alexandria bank robbery and numerous others and identified an accomplice. During the interview of Dickerson, the interviewing agents made application for, and received, a telephonic search warrant for Dickerson's apartment. The search warrant was executed while the interview continued. The agents conducting the search found substantial evidence implicating Dickerson in several bank robberies. He was arrested and indicted on one count of conspiracy to commit bank robbery in violation of 18 U.S.C. [ss] 371, on three counts of bank robbery in violation of 18 U.S.C. [ss] 2113(a) and (d), and on three counts of using a firearm during, and in relation to, a crime of violence in violation of 18 U.S.C. [ss] 924(c)(1). [21]

At the inevitable evidence suppression hearing, Dickerson testified that his confession was made before he received his Miranda warnings and, therefore, violated Miranda. The interviewing FBI agent testified that Dickerson confessed after receiving his Miranda warnings and voluntarily waiving them. There was no question that the confession was voluntary, but only whether it was made before or after Dickerson was warned and waived his Miranda rights. The district court judge suppressed his confession. The suppression of the confession was appealed to the U.S. Court of Appeals for the Fourth Circuit.

The Fourth Circuit decided there was sufficient evidence in the record to support the district court's finding that Dickerson had not been given his Miranda rights prior to confessing. [22] However, the Fourth Circuit reversed the lower court's decision to suppress the confession, finding the lower court used the wrong standard to judge the confession's admissibility. The Fourth Circuit decided that by passing 3501, Congress had lawfully changed the test for the admission of confessions in federal court from the stricter Miranda rule to the less stringent totality-of-the-circumstances test. Using that less stringent standard, the Fourth Circuit found that the government's failure to give Miranda warnings was only one factor to be considered when judging voluntariness of the confession. Because the lower court already had found Dickerson's confession to be voluntary, the Fourth Circuit reversed. The U.S. Supreme Court agreed to finally decide the issue.

The Decision

The U.S. Supreme Court issued its opinion on Dickerson on June 26,2000. In a 7-2 decision, the court held that Miranda is a Constitutional decision and, therefore, could not be overruled by an Act of Congress. [23] The Court not only affirmed Miranda but also declared it a Constitutional rule. [24] Aside from elaborating in great detail as to why its finding that Miranda is Constitutionally required was consistent with its original decision and its progeny, the Court gave two other noteworthy justifications. The Court found that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." [25] The Court also said "...experience suggests that the totality-of-the-circumstances test which [sections] 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner." [26] Thus, 32 years after enactment, [sections] 3501 has been ruled unconstitutional, and the precusto dial interrogation requirements of Miranda have been given "a permanent place in our jurisprudence." [27]

PRACTICAL IMPLICATIONS: CIVIL LIABILITY

The Supreme Court's decision in Dickerson was both a surprise and a disappointment to many. [28] The decision clearly elevates the warning requirements of Miranda to Constitutional proportions; the single most significant practical impact of which is potential civil liability of individual law enforcement officers and their departments resulting from intentional violations of the warning requirements mandated in Miranda.

Title 42 U.S.C. [sections] 1983 [29] (hereafter [sections] 1983) provides a federal remedy for deprivations of federal Constitutional rights by authorizing suits against public officials and government entities. [30] To recover under [sections] 1983, a civil rights plaintiff must prove two elements: 1) intentional deprivation of a federally protected right "secured by the Constitution and the laws of the United States," and 2) state action under color of law. [31] Section 1983 was applied to federal law enforcement agencies in Bivens v. Six Unknown Federal Narcotics Agents. [32] A host of individual state causes of action mirror [sections]1983 suits that can result in liability to the department and personal liability to the individual officer.

Section 1983 requires intentional conduct or gross negligence by the government employee. Mere negligence is not actionable under [sections]1983. [33] For example, if an interrogator were to negligently give defective warnings, this would not result in [sections] 1983 liability.

In addition to the individual officer being exposed to [sections] 1983 liability, the agency or department also can be sued for Constitutional violations arising from official policy or other customs or practices of the entity. [34] Inadequate training also may be the basis for liability if the failure to train amounts to a deliberate indifference to rights of persons with whom police come in contact. [35]

Prior to the Supreme Court's decision in Dickerson, the clear majority view among the federal circuits was that no cause of action for money damages existed under [sections] 1983 where police officers allegedly violated Miranda principles by either failing to give Miranda warnings or by continuing to question a defendant in custody after his request for an attorney. [36] The rationale prior to Dickerson was that the U.S. Constitution did not guarantee the right to Miranda warnings. Dickerson only can be read to have changed this and to have created the requisite Constitutional right that satisfies the previously void [sections] 1983 element. While the Court in Dickerson did not expressly address the issue of civil liability and may at some future time limit [sections] 1983 liability exposure in the Miranda context, the only prudent course for law enforcement officers today is to proceed assuming that this [sections] 1983 cause of action is now viable.

In any ss 1983 civil action, the issue of qualified immunity is always present. Qualified immunity is available to defendants in a ss 1983 suit if they can show the actions in question did not violate any clearly established law of which they should have been aware at the time; in other words, the actions were within the law and objectively reasonable. [37] Because the issue of Miranda 's Constitutionality has been squarely addressed by the Supreme Court-and thus "clearly established"--it is unlikely that law enforcement officers (or their department) would be entitled to qualified immunity for intentional violations of the Miranda requirement. [38]

The potential for actual (compensatory) damages for such a lawsuit obviously would be limited. But there is always the possibility of punitive damages [39] and attorney's fees, [40] which make even minor violations a potential suit. As any experienced law enforcement manager understands, there is no such thing as an insignificant ss 1983 lawsuit. Even suits that are ultimately won are costly and substantially hinder the mission of the department, thus affecting public safety. In 1983 lawsuits, "the only true victory is the avoidance of conflict completely." [41]

PRACTICAL GUIDANCE

The Dickerson decision did not alter the requirements Miranda placed on law enforcement. It did, however, establish liability exposure to law enforcement officers and their departments for failure to comply with those requirements.

Stay "Inside" Miranda

In Supreme Court decisions subsequent to Miranda, the Court recognized legitimate uses for statements taken in technical violation of the Miranda requirements but voluntarily made. [42] Such statements may be used to impeach a defendant's trial testimony if the defendant takes the stand and testifies inconsistently with prior statements [43] or at a subsequent trial for perjury resulting from the false trial testimony. Witnesses identified in statements taken in technical violation of Miranda also may testify." These permissible uses of incriminating statements obtained in violation of Miranda have led to a practice in law enforcement of intentionally questioning in violation of Miranda. This practice is commonly referred to as questioning "outside Miranda." In fact, numerous law enforcement agencies have encouraged and provided training in this practice, which has been impacted significantly by the Dickerson decision and now invites 1983 lawsuits.

Departments must ensure that their officers do not interrogate "outside Miranda," and immediately abandon any condoned practice or policy of intentional violations of Miranda. The clearest example of this is the continuation of questioning after a suspect unequivocally has invoked his right to counsel. This also would include the practice of interrogating before the warnings are given (with a view toward having suspects make incriminating statements and then be given the warnings, which are likely to be waived because they already have incriminated themselves). While it is likely that voluntary statements made in technical violation of Miranda will remain admissible for the limited purposes described above, they clearly are exposing interrogating officers and their departments to civil liability. Departments must avoid even the appearance of intentionally conducting interrogations not in strict compliance with Miranda.

Do Not "Over-Mirandize"

Law enforcement departments must be mindful of another obvious trap for those who are unwary or lack confidence in the practical applications of Miranda: the tendency to repeatedly or unnecessarily give Miranda warnings. Any experienced law enforcement interrogator has seen this in practice. In an effort to guarantee absolute Miranda compliance during a conversation with a suspect, many law enforcement officers will give repeated warnings or, more commonly, provide warnings when they obviously are not required.

Repeated warnings usually happen when an officer contacts a suspect who recently has been properly warned, but gives the warnings again to ensure compliance with Miranda. While no Supreme Court decision addresses how "fresh" a warning has to be, the common approach is to re-advise only after an extended break in interrogation has occurred. Unnecessary warnings occur when law enforcement officers fail to realize that the suspect is not in custody and/or not being interrogated. [45] Either of these scenarios is most likely to happen when the investigation involves a serious crime or is for some other reason a high profile matter. [46]

Both "over-Mirandizing" scenarios were a problem prior to Dickerson. [47] Now, in addition to apprehension about statements being suppressed, law enforcement officers will be further burdened by the possibility of civil liability. The inevitable result will be an even greater tendency to "over-Mirandize." The answer for law enforcement is more training.

The Need for Training and Sound Policies

A thorough understanding of all aspects of Miranda by all members of a department is a substantial training task. That said, the only way to minimize lost evidence and potential civil liability caused by a lack of understanding of Miranda is training supported by solid department policies.

Another aspect of interrogation largely controlled by policy is the documentation used to record Miranda warnings and waivers. As demonstrated in Dickerson, the prosecution must be able to establish that the Miranda requirements were met. Law enforcement managers should reevaluate their policies regarding the use of written waiver forms and the number of officers present during a rights warning and waiver. They should consider videotaping at least the rights warning and waiver, if not the entire interview. The facts in Dickerson demonstrate how a lawful and documented advice of rights and waiver still can result in a confession being suppressed.

CONCLUSION

The Dickerson decision elevated the warning requirements of Miranda to Constitutional proportions. The decision has no practical impact on the requirements placed on law enforcement departments and agencies in complying with Miranda. The timing of the warnings (i.e., before any interrogation occurs of a subject who is in custody) and the substance of the warnings have remained unchanged.

The critical impact of the Dickerson decision is that intentional violations of the requirements of Miranda, commonly known as questioning "outside Miranda," now may provide the basis for a lawsuit alleging a federal Constitutional violation. Aside from exposing officers and departments to civil liability, this may exacerbate the problem of unnecessarily providing Miranda warnings.

Law enforcement managers should reevaluate their existing training and policies that address the practices of their personnel conducting interviews and interrogations. Now, more important than ever, intentional violations of Miranda must cease.

Endnotes

(1.) Jacob W. Landyski, Search and Seizure and the Supreme court. A Study in constitutional Interpretation (Baltimore, MD: The Johns Hopkins Press, 1966), 42, commenting on the Fourth Amendment.

(2.) Miranda v. Arizona, 384 U.S. 436 (1966).

(3.) Dickerson v. United States, 530 U.S. 428 (2000).

(4.) Id. Also see generally United States v. Dickerson, 166 F.3rd 667 (4th Cir. 1999).

(5.) The King v. Rudd, 168 Eng. Rep. 160 (K.B. 1783) (holding that "no credit ought to be given" to "a confession forced from the mind by the flattery of hope, or by the torture of fear") and references thereto by the U.S. Court of Appeals, Fourth Circuit in United States v. Dickerson, 166 F.3rd 667 (4th Cir. 1999).

(6.) Regina v. Garner, 169 Eng. Rep. 267 (Ct. Crim. App. 1848); Regina v. Baldry, 169 Eng. Rep. 568 (Ct.Crim.App.1852) and references thereto in United States v. Dickerson, 166 F.3rd 667 (4th Cir. 1999).

(7.) 110 U.S. 574 (1884).

(8.) Id. at 577 (citing Baldry, 169 Eng. Rep. 568 (Ct.Crim.App. 1852)); see also Pierce v. United States, 160 U.S. 355, 357 (1896).

(9.) 168 U.S. 532 (1897).

(10.) Id. at 542 (stating that whether a confession is voluntary "is controlled by that portion of the Fifth Amendment...commanding that no person shall be compelled in any criminal case to be a witness against himself" (quoting the Fifth Amendment to the U.S. Constitution)).

(11.) 297 U.S. 278 (1936).

(12.) The Supreme Court first defined "compulsion" in Bram, stating that a confession "must not be extracted by any sort of threat or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence." See, e.g., Haynes v. Washington, 373 U.S. 503 (1963); Ashcraft v. Tennessee, 322 U.S. 143 (1944); Chambers v. Florida, 309 U.S. 227 (1940).

(13.) The Supreme Court applied the due process voluntariness test in "some 30 different eases decided during the era that intervened between Brown and Escobedo v. Illinois, 378 U.S. 478 (1964)." Schneckloth v. Bustamonte, 412 U.S. 218, at 226 (1973). See also, Haynes, supra, at 513; Gallegos v. Colorado, 370 U.S. 49, 55 (1962); Reck v. Pate, 367 U.S. 433, 440 (1961) ("[A]ll the circumstances attendant upon the confession must be taken into account"); Malinski v. New York, 324 U.S. 401, 404 (1945).

(14.) Dickerson, 530 U.S. at 434, citing Schneckloth, 412 U.S. at 223.

(15.) The Miranda decision is clearly one of the Supreme Court's most well-known and prolific cases. As of May 27, 2001, Westlaw reported that Miranda had been cited in judicial decisions, treatises or other scholarly articles 29,031 times. (16.) It is critical for law enforcement officers to understand that this is a "bright-line" rule. There is no balancing test nor good faith exception. A completely voluntary statement by a subject prompted by a law enforcement interrogator with the best of intentions will be suppressed if there is any material deviation from the Miranda requirements. This is contrary to the more familiar Fourth Amendment search and seizure requirements (which law enforcement officers typically spend far more time with than Fifth Amendment issues). Fourth Amendment analyses are grounded in a reasonableness/totality-of-the-circumstances approach and balance the interests of the individual versus those of the public. The Supreme Court said in Graham v. Connor, 490 U.S. 386, at 396 (1989) (quoting Bell v. Wolfish, 441 U.S. 520 (1979)) that "[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application...." But, the Court made clear in Miranda that the test of voluntariness under the Fifth Amendment is.

(17.) Miranda, 384 U.S. at 444.

(18.) See generally Edwards v. Arizona, 451 U.S. 477 (1981).

(19.) Miranda, 384 U.S. at 467.

(20.) 18 U.S.C. [ss] 3501 provides, in relevant part:

"(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession...shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.

(b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel, and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession."

(21.) On October 6, 2000, in the aftermath of the Supreme Court decision, Dickerson was found guilty after ajury trial of three of the original seven counts (one count each of the conspiracy, bank robbery, and firearms charges) in Federal District Court, Alexandria, VA.

(22.) For reasons not disclosed in the record, the government relied exclusively on the testimony of the interviewing FBI agent and did not use other evidence, such as the testimony of an Alexandria Police Detective (who had been present for the entire interview) or a written statement of Dickerson that clearly demonstrated that he had received his Miranda warnings prior to confessing. The Fourth Circuit was unable to find as matter of law that the lower court erred in its factual findings supporting the suppression of Dickerson's statements. In reviewing the decision of the District Court in suppressing the statements, the Fourth Circuit stated that:

[The Alexandria police detective], who was in the interview room with Dickerson at all times, stated in his affidavit that "Dickerson was read his Miranda rights before he made th[e] statements" implicating himself...in the First Virginia Bank robbery.... In fact, [the Alexandria police detective] testified that when Dickerson was read his Miranda rights he still denied any involvement in the bank robbery. According to [the Alexandria police detective], it was not until Dickerson was told that agents had found a bait bill from a bank robbery in his apartment that he decided to confess.

Attached to [the Alexandria police detective]'s affidavit was a hand-written statement that Dickerson made while at the FBI field office in which he stated that he "was read [his] rights [at a time clearly before his confession and issuance of the warrant]" ... Thus, according to his own hand-written note, Dickerson was read his Miranda warnings prior to implicating himself... in the First Virginia Bank robbery."

U.S. v. Dickerson (4th Cir.) at 676-677 (emphasis added).

(23.) An Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution of the United States. Such judicial review of the legislative branch was established in Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60 (1803).

(24.) Dickerson, 530 U.S. 444. "In sum, we conclude that Miranda announced a constitutional rule that Congress may not supersede legislatively...[and] we decline to overrule Miranda ourselves."

(25.) Id.

(26.) Dickerson, 530 U.S. 444.

(27.) Id., (dissent of Justice Scalia). While 32 years seems a long time for an Act of Congress to be held unconstitutional, it is not the record. Apparently, the longest such delay is the 122 years it took the Supreme Court to declare 18 U.S.C. 474 (enacted in 1862) unconstitutional in Regan v. Time, Inc., 468 U.S. 641 (1984).

(28.) To appreciate how controversial the Miranda through Dickerson line of cases are, one need look no further then the dissenting opinion of Justice Scalia, with whom Justice Thomas joins, in Dickerson, 530 U.S. 444

(29.) Title 42 U.S.C. [ss] 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State...subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

(30.) See Monroe v. Pape, 365 U.S. 167 (1961).

(31.) Lugar v. Edmondson Oil Co., 457 U.S. 922, 930 (1982) (quoting Flagg Brothers v. Brooks, 436 U.S. 149, 155-56 (1978)).

(32.) 102 S.Ct. 2727 (1982).

(33.) Daniels v. Williams, 106 5. Ct. 662 (1986). See also Sacramento v. Lewis, 118 S.Ct. 1708 (1998).

(34.) M0 onell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978).

(35.) City of Canton, Ohio v. Harris, 489 U.S. 378 (1989).

(36.) Examples of federal circuit courts expressly finding no such (preDickerson) [ss]1983 liability include: Giuffre v. Bissell, 31 F.3d 1241,1256 (3d Cir.1994), Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir.1976), Warren v. City of Lincoln, Neb., 864 F.2d 1436, 1442 (8th Cir.1989), and Thornton v. Buchmann, 392 F.2d 870, 874 (7th Cir.1968). The only federal circuit that allowed such [ss] 1983 actions was the Ninth Circuit. See Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.1992), and California Attorneys for Criminal Justice v. Butts, 195 F.3d 1039 (9th Cir. 1999) (holding that not only was the [ss]1983 action appropriate, but the police officers involved were not entitled to qualified immunity when they continued to question the suspects/plaintiffs after they invoked their Miranda rights).

(37.) The standard for qualified immunity is "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Anderson v. Creighton, 483 U.S. 635, 640 (1987), in which the Court defined what constitutes a clearly established right:

The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful,...but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

(38.) See Reser v. Las Vegas Metropolitan Police Department, 242 F.3rd 383, 2000 WL 1585648 (9th Cir.(Nev.)) (October 20, 2000) where the court affirmed entitlement of qualified immunity in a [ss] 1983 lawsuit to a detective for actions occurring during an interrogation that occurred prior to the Dickerson decision. The court explicitly said that because the interrogation occurred before the Dickerson decision, the Constitutionality of Miranda warnings had not been clearly established at the time of the interrogation.

(39.) 42 U.S.C. [ss] 1983, at subsection LVII.

(40.) 42 U.S.C. [ss] 1988(b).

(41.) Sun Tzu, The Art of War (Boston, MA: Shambhala, 1991). This is a translation of an ancient Chinese work of unknown original date.

(42.) Incriminating statements made involuntarily under the Due Process Clause may never be used for any purpose. Arizona v. Fulminate, 499 U.S. 279 (1991).

(43.) Harris v. New York, 401 U.S. 222 (1971). Ironically, Dickerson's suppressed confession eventually was used against him at trial to impeach his in-court testimony.

(44.) While the defendant's statement would be excluded from trial, the discovery of the witness and, thus, the witness' trial testimony would not be viewed as "fruit-of-the-poisonous-tree." Michigan v. Tucker, 417 U.S. 433 (1974).

(45.) A suspect must reasonably believe (from the perspective of an objectively reasonable innocent person) that he or she is in custody, regardless of the intention of the interrogating law enforcement officer. See Stansbury v. California, 114 S. Ct. 205 (1988). Also, there must be interrogation. That is, questioning or its "functional equivalent," which is reasonably likely to illicit incriminating information. See Brewer v. Williams, 430 U.S. 387 (1977) and Rhode Island v. Innis, 446 U.S. 291 (1980). For Miranda warnings to be legally required, both custody and interrogation must be present. If a suspect is in custody, warnings need not be given until interrogation begins. Likewise, if a suspect is not in custody and is being questioned by the police, warnings need not be given.

(46.) See Colorado v. Connelly, 107 5. Ct. 515 (1987) for an excellent example of this. Connelly, who had brutally murdered a young girl, walked up to a police officer on a street corner in Denver and began explaining to the officer what he had done. Connelly was clearly neither in custody nor was the police officer interrogating him. But as soon as the officer understood this involved a possible murder he abruptly interrupted Connelly and gave Miranda warnings and continued to interrupt Connelly's attempts at unburdening his conscience to ascertain if Connelly was insane or under the influence of something. The officer was unwary as to the requirements of Miranda and attempted to compensate by grossly exceeding the requirements. See also Judge Harold J. Rothwax, Guilty - The Collapse of the Criminal Justice System, (New York, NY: Warner Books, 1997), 66-69, for poignant commentary on this case.

(47.) The Court in Dickerson, as noted above, opined that Miranda is easier for law enforcement officers to conform to, and for courts to apply in a consistent manner, than the totality-of-the-circumstances test. They make no mention of countless incriminating statements that were never made because of unnecessary or excessive Miranda warnings and the impact this has had on the legitimate interests of criminal justice.

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