Touch N' Go®, the DeskTop In-and-Out Board makes your office run smoother. Visit
Touch N' Go's Website to see how.
Crawford v. State (10/22/2004) ap-1951
Crawford v. State (10/22/2004) ap-1951
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
PHILLIP A. CRAWFORD, )
) Court of Appeals
No. A-8459
Appellant, )
Trial Court No. 4FA-S01-3371 CR
)
v. ) O P I N
I O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1951 October 22, 2004]
)
Appeal from the Superior Court, Fourth Judi
cial District, Fairbanks, Ralph R. Beistline
and Mark I. Wood, Judges.
Appearances: Marcia E. Holland, Assistant
Public Defender, Fairbanks, and Barbara K.
Brink, Public Defender, Anchorage, for
Appellant. W.H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Gregg D. Renkes,
Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In this appeal, we must assess the potential curative
effect of Miranda warnings that were administered to a suspect in
police custody after the police had already unlawfully obtained
incriminating statements from the suspect in violation of Miranda
(by interrogating him without giving him the required warnings).1
In our last major decision on this subject, Halberg v.
State, 903 P.2d 1090 (Alaska App. 1995), we described two
competing analyses of this question: the older dissipation of
taint analysis exemplified by the United States Supreme Courts
decision in Brown v. Illinois,2 and the modified analysis
announced in 1985 by the Supreme Court in Oregon v. Elstad.3
Under Brown, even though a suspect ultimately receives
proper Miranda warnings, the statements that the suspect makes
after receiving those Miranda warnings are still presumptively
inadmissible; to rebut this presumption, the government must show
that there was a break in the chain of events to insulate those
later statements from the taint of the suspects initial unwarned
admissions.4 But under Elstad, the later administration of
Miranda warnings presumptively negates the psychological
pressures of custodial interrogation from that point forward,
thus rendering the suspects ensuing statements admissible despite
the fact that the suspect had earlier made incriminating
admissions. In the words of the Elstad Court, a careful and
thorough administration of Miranda warnings serves to cure the
condition that rendered the [earlier] unwarned statement
inadmissible, even when there has been no significant break in
the stream of events as required under Brown.5
In Halberg, we were asked to reject the Elstad rule and
to adopt the Brown rule as a matter of state constitutional law.
However, we ultimately concluded that there was no need to decide
that issue, since the defendants post-Miranda-warning statements
were untainted even under the Brown rule.6
In the present appeal, we are once more faced with this
issue. We again conclude that we need not decide the issue this
time, because the defendants statements should be suppressed even
under the Elstad rule.
Underlying facts
Phillip A. Crawford was convicted of
possession of cocaine (fourth-degree misconduct
involving a controlled substance) after the police
found cocaine under the seat of his car. The police
found the cocaine after Crawford told them where the
drug was and gave them permission to search his
vehicle. However, Crawford made his initial admission
about the cocaine when he was subjected to custodial
interrogation without the benefit of Miranda warnings.
Alaska State Troopers George Kammer and
Justin Lindell (a probationary recruit) stopped
Crawfords car because his registration tags were
expired. Trooper Lindell approached Crawfords car and
identified himself. During his conversation with
Crawford, Lindell smelled alcohol on Crawfords breath.
Lindell asked Crawford if he had been drinking.
Crawford denied having had anything to drink that day,
but he admitted drinking the night before.
Lindell then asked Crawford if he had any
alcohol, weapons, or drugs in the car, and if he would
consent to a search of his vehicle. Crawford denied
having any contraband, but he consented to the search
of his car.
After further questioning, Crawford admitted
that he had failed to register the car after he
purchased it. Crawford also admitted that his drivers
license was revoked. After a computer check confirmed
that Crawfords drivers license was revoked, Lindell
informed Crawford that he was under arrest for driving
with a revoked license, and Lindell handcuffed
Crawfords hands behind his back. The parties agree
that, as of that moment, Crawford was in custody for
Miranda purposes.
Following this arrest, Lindell conducted a
pat-down search of Crawfords person. During this pat-
down, Lindell discovered what seemed to be a small
smoking pipe in Crawfords right front pocket. When
Lindell asked for permission to remove the pipe,
Crawford consented. The pipe gave off the odor of
burnt marijuana.
Lindell then asked Crawford if he had
anything else in his pockets. Crawford admitted that
there was a little can of marijuana in his pocket.
Trooper Lindell retrieved the can and confirmed that it
contained marijuana.
Trooper Lindell then asked Crawford if he had
any more drugs in his vehicle. Crawford admitted that
he had some more marijuana and a couple of grams of
cocaine under the seat of his car.
At this point, Lindell took Crawford back to
the patrol car and, for the first time, advised him of
his Miranda rights. Crawford waived his Miranda rights
and agreed to further questioning.
Lindell began this post-Miranda questioning
by reminding Crawford of the things he had previously
admitted in particular, his possession of marijuana
and cocaine under the seat of his car. (The tape of
this interview shows that Lindell said to Crawford,
Like we were talking about before, you had said you had
coke under the seat. Is it okay to look in the car,
under the seat?) Lindell then questioned Crawford
about the cocaine. And, after reminding Crawford that
he had already consented to a search of his car,
Lindell again asked Crawford for permission to search
the car. Crawford again consented. Lindell then
entered the car and found a bag of cocaine and a can of
marijuana under the drivers seat.
After the grand jury indicted Crawford for
possession of cocaine, Crawford asked the superior
court to suppress the statements that he made to
Trooper Lindell. Crawford argued that his initial
statements were elicited through interrogation while he
was in custody but before he had been given his Miranda
warnings, and that his post-Miranda statements were
tainted because they were not sufficiently insulated
from the initial Miranda violation.
Superior Court Judge Ralph R. Beistline
granted Crawfords suppression motion in part. He
suppressed the statements that Crawford made prior to
receiving Miranda warnings, but he ruled that Crawfords
later statements (the statements he made after he
received Miranda warnings) were admissible.
Judge Beistline based his ruling on the
United State Supreme Courts decision in Oregon v.
Elstad. He reasoned that even though Crawfords pre-
Miranda statements should be suppressed, Crawfords post-
Miranda statements were nonetheless admissible because
these statements were voluntary and because Crawford
knew, at that point, that he had the right to remain
silent and to refuse to answer the troopers questions.
In the alternative, Judge Beistline ruled
that Crawfords post-Miranda statements would be
admissible even under pre-Elstad law. The judge
concluded that Crawfords post-Miranda statements were
untainted by the Miranda violation because he found
that, under the totality of the circumstances, Crawford
freely and voluntarily provided those statements.
At Crawfords trial, the State relied on
Crawfords post-Miranda statements to help prove that he
was aware of the cocaine under the seat of his car.
The jury convicted Crawford of possessing cocaine
(fourth-degree misconduct involving a controlled
substance).
In this appeal, Crawford argues that Judge
Beistline should have suppressed his post-Miranda
statements. He asks this Court to adopt the Brown rule
as a matter of state constitutional law, and he argues
that, under the Brown rule, his post-Miranda statements
were the tainted fruit of the earlier Miranda
violation. In the alternative, Crawford argues that
his later statements should be suppressed even under
the rule announced in Oregon v. Elstad. The State, for
its part, argues that Crawfords post-Miranda statements
are admissible under both Brown and Elstad.
Appellate courts generally should decline to
reach constitutional issues if the case can be resolved
on non-constitutional grounds.7 Thus, before we decide
whether to endorse or reject the Elstad rule as a
matter of Alaska constitutional law, we must first
examine the admissibility of Crawfords statements under
both pre-Elstad law and post-Elstad law for if
Crawfords statements would be admissible or
inadmissible under both analyses, there would be no
need for us to decide whether to endorse or reject the
Elstad rule.
The admissibility of Crawfords statements under the law
as it existed before Oregon v. Elstad
As we explained in Halberg v. State, there
are two basic ways in which the police may violate a
defendants privilege against self-incrimination:
First, the police may use interrogation
methods so coercive as to overbear [the
suspects] will to resist and bring about
confessions not fairly self-determined.
Rogers v. Richmond, 365 U.S. 534, 544, 81
S.Ct. 735, 741, 5 L.Ed.2d 760 (1961). In
such cases, the defendants confession is
deemed involuntary, and it must be
suppressed. Second, the police may violate
the rules established in Miranda and
succeeding cases the rules governing the
polices duty to inform an arrested suspect of
the rights to silence and to counsel, to
obtain a waiver of these rights before
custodial interrogation, and to respect a
suspects invocation of these rights. Even if
the defendants statement is voluntary, the
Miranda violation constitutes an independent
ground for suppression.
Halberg, 903 P.2d at 1093.
Before the United States Supreme
Court decided Oregon v. Elstad, courts used
one legal test to analyze whether a previous
Fifth Amendment violation either an
involuntary statement or a statement taken in
violation of Miranda tainted a defendants
later statement. As a preliminary matter,
the government had to show that the
defendants later statement was voluntary and,
if the defendant was in custody during the
subsequent interrogation, that the defendant
received proper Miranda warnings and waived
those rights. Assuming that these
foundational matters were proved, the
remaining question was whether, under the
totality of the circumstances, the defendants
decision to give a subsequent statement was
sufficiently an act of free will to purge the
primary taint. Brown v. Illinois, 422 U.S.
at 602, 95 S.Ct. at 2261. Or, as the Supreme
Court stated in Clewis v. Texas, the question
was whether there was a break in the stream
of events ... sufficient to insulate the
[subsequent] statement from the effect of all
that went before.8
(Brown involved a claim that the
defendants statement was tainted by his prior
illegal arrest (a Fourth Amendment
violation). However, the Supreme Court
required the same analysis in cases involving
violations of the Fifth Amendment. See
Westover v. United States (a companion case
of Miranda),9 and Clewis v. Texas.10 See
also United States v. Bayer, 331 U.S. 532,
540, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654
(1947); Holland v. McGinnis, 963 F.2d 1044,
1050 (7th Cir. 1992); and United States v.
Wauneka, 770 F.2d 1434, 1441 (9th Cir. 1985)
(discussing other cases involving prior
involuntary confessions).)
The Brown case is particularly
important because, in Brown, the government
argued that the taint of a prior illegality
could always be negated by giving the
defendant Miranda warnings. The government
asserted that, once a defendant understood
that they did not need to say anything to the
police, any knowing and voluntary decision to
submit to questioning necessarily constituted
an independent act of will that broke the
stream of events. The Supreme Court rejected
the governments argument:
[The fact that the defendant received]
Miranda warnings [before making the
subsequent statement is] an important factor,
to be sure, in determining whether the
confession is obtained by exploitation of an
illegal arrest. But [this is] not the only
factor to be considered. The temporal
proximity of the [initial illegality] and the
confession, the presence of intervening
circumstances, and, particularly, the purpose
and flagrancy of the official misconduct are
all relevant.
Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-
62 (footnotes and citations omitted).
The decision whether a defendants
statements are tainted by a prior illegality
is ultimately a question of law. As an
appellate court, we must accept the trial
courts findings of historical fact (unless
they are shown to be clearly erroneous). But
we then independently determine whether,
under those facts, the defendants decision to
speak with the police was voluntary and
sufficiently insulated from the prior
illegality to escape its taint. Dulier v.
State, 511 P.2d 1058, 1060 (Alaska 1973).11
In Halberg, we discussed the
factors that a court should consider when
determining whether, under the totality of
the circumstances, a defendants subsequent
statements should be deemed the tainted fruit
of prior illegally obtained statements. We
listed these factors:
the purpose and flagrancy of the initial
illegal act, the amount of time between the
illegal act and the defendants subsequent
statement, the defendants physical and mental
condition at the time of the subsequent
statement, whether the defendant remained in
custody or was at liberty during this
interval, whether the defendant had the
opportunity to contact legal counsel or
friends during this interval, whether the
subsequent interview took place at a
different location, whether the defendants
interrogators were the same officers who
committed the prior illegal act, whether the
evidence obtained from the prior illegal act
affected the defendants decision to submit to
a subsequent interview, whether the police
used lies or trickery to influence the
defendants decision, and whether there were
other intervening events that affected the
defendants decision.
Halberg, 903 P.2d at 1098.
Concerning the first factor
mentioned above the purpose and flagrancy of
the initial illegal act the State presented
testimony that Trooper Lindell acted from
inexperience and excitement when, after
arresting Crawford, he began to question
Crawford without first giving him Miranda
warnings. That is, the State suggested that
Lindell did not purposefully refrain from
administering Miranda warnings to Crawford,
but rather simply forgot to give Crawford
prompt Miranda warnings. Judge Beistline
made no finding on this issue of fact. We
note, however, that police forgetfulness or
inexperience is not recognized as an excuse
for failing to give Miranda warnings to a
suspect in custody before interrogation
begins.
There may be instances when the
police fail to administer Miranda warnings
because the officers reasonably but
mistakenly believe that the suspect is not in
custody. Or there may be instances (such as
the one presented in Halberg) when the police
make a good-faith effort to administer the
Miranda warnings, but either the warnings or
the suspects ensuing waiver of rights turns
out to be deficient in some respect. But in
Crawfords case, Lindell formally placed
Crawford under arrest before the challenged
interrogation began, and Lindell made no
attempt to administer Miranda warnings to
Crawford following this arrest until after
Crawford admitted that there was cocaine
beneath the seat of the car.
Judge Beistline did find that there
was no coercion or intention by [the]
troopers to extract or even encourage a
confession from Crawford. And with regard to
lack of coercion, Judge Beistlines finding is
supported by the record. But Judge
Beistlines finding that the troopers had no
intention to extract or even encourage a
confession is clearly erroneous. Before
Lindell administered the Miranda warnings to
Crawford, Lindell repeatedly asked Crawford
to tell him whether there were drugs in the
car. And, after the Miranda warnings were
administered, Lindell expressly reminded
Crawford of his earlier admissions and
encouraged him to repeat or affirm them.
The interval between Crawfords
initial statements obtained through the
Miranda violation and Crawfords subsequent
post-Miranda statements could hardly have
been shorter. Judge Beistline found that the
troopers administered the Miranda warnings to
Crawford mere minutes after his initial
statements. Further, Crawford remained in
custody throughout this time; he had no
opportunity to reflect, much less to obtain
legal assistance or contact friends.
Moreover, the troopers continued questioning
of Crawford was conducted at the same
location by the same officer who obtained
Crawfords initial statements in violation of
Miranda.
It is also important to note that,
after Trooper Lindell belatedly warned
Crawford of his Miranda rights, Lindell
immediately reminded Crawford of his earlier
self-incriminating statement (his admission
that there was cocaine under the seat of his
car). It therefore appears likely that
Crawfords earlier self-incriminating
statement, obtained without benefit of
Miranda warnings, was a significant factor in
Crawfords decision to keep answering the
troopers questions and to repeat his earlier
admission that he possessed cocaine.
Under these circumstances,
analyzing Crawfords case under pre-Elstad
law, we conclude that Crawfords statements
were tainted by the earlier Miranda violation
and should have been suppressed.
The admissibility of Crawfords statements under the law
since Oregon v. Elstad
In Elstad, the Supreme Court abandoned the
Brown dissipation of taint test for Miranda violations.
In doing so, the Court drew a distinction between
instances in which the police use coercive methods to
obtain an involuntary confession from a suspect,
and instances in which the suspects statements are
voluntary but are obtained after the police fail to
give Miranda warnings to the suspect.
The Court explained that it was appropriate
to use the dissipation of taint test in the first
category of cases because the Fifth Amendment bars
compelled self-incrimination; thus, the extraction of
an involuntary confession is a violation of the
suspects federal constitutional rights. But with
regard to the second category of cases, the Court held
that it was not appropriate to use the dissipation of
taint test because the police can violate the Miranda
rule without violating the suspects Fifth Amendment
rights:
[While] [t]he Miranda exclusionary rule
... serves the Fifth Amendment[, it] sweeps
more broadly than the Fifth Amendment itself.
[The Miranda rule] may be triggered even in
the absence of a Fifth Amendment violation.
The Fifth Amendment prohibits use ... only of
compelled testimony. ... [U]nwarned
statements that are otherwise voluntary
within the meaning of the Fifth Amendment
must nevertheless be excluded from evidence
under Miranda. Thus, in the individual case,
Mirandas preventive medicine provides a
remedy even to the defendant who has suffered
no identifiable constitutional harm.
Elstad, 470 U.S. at 306-07, 105 S.Ct. at 1291-92 (emphasis in the
original).
The Supreme Court held that when the prior police
illegality involves only a Miranda violation, a careful and
thorough administration of the Miranda warnings serves to cure
the condition that rendered the unwarned statement inadmissible,
even when there has been no identifiable break in the stream of
events of the type required under Brown.12 In such cases, the
Court declared, the administration of Miranda warnings before the
subsequent interview conveys the relevant information [concerning
the suspects constitutional rights to silence and to the
assistance of counsel,] and thereafter the suspects choice
whether to exercise his privilege to remain silent should
ordinarily be viewed as an act of free will.13
At first blush, one might interpret Elstad as standing
for the proposition that the later administration of Miranda
warnings negates all that went before returning the police
officers and the suspect in their custody to the legal situation
they were in before the Miranda violation. But this would be a
misreading of Elstad.
The Elstad decision does firmly reject the notion that,
once a suspect has made incriminating admissions, a later
administration of Miranda warnings can never cure the preceding
illegality because, from the suspects point of view, the cat is
out of the bag and so there is no point in asserting ones rights.
The Oregon court had relied heavily on this cat out of the bag
doctrine when it ruled that Elstads post-Miranda statements had
to suppressed. The Supreme Court disagreed:
[T]he causal connection between any
psychological disadvantage created by [the
suspects] admission [at the time of his
arrest] and his ultimate decision to
cooperate [with the authorities] is
speculative and attenuated at best. It is
difficult to tell with certainty what
motivates a suspect to speak. ... [A]bsent
deliberately coercive or improper tactics in
obtaining the initial statement, the mere
fact that a suspect has made an unwarned
admission does not warrant a presumption of
compulsion.
Elstad, 470 U.S. at 313-14, 105 S.Ct. 1295-96.
In other words, Elstad holds that once Miranda warnings
are given, and the suspect understands that they have a
right not to answer police questions, the courts will
not presume that the suspects prior unwarned admissions
were the factor that caused the suspect to waive their
constitutional rights and make further statements to
the police. In fact, the presumption is the opposite:
once Miranda warnings have been given, thus apprising
the suspect of the constitutional rights to silence and
to the assistance of counsel, the suspects choice
whether to exercise his privilege to remain silent
should [thereafter] ordinarily be viewed as an act of
free will.14
But the Supreme Court used the adverb ordinarily in the
preceding sentence for a reason. Elstad acknowledges
that there may be instances in which defendants can
show that, despite receiving Miranda warnings, they
were nevertheless illegally pressured to continue
speaking instances in which the police exploit the
[earlier] unwarned admission to pressure [the
defendant] into waiving his [or her] right to remain
silent.15
In the twenty years since Elstad was decided, several
courts have pointed to this aspect of the Elstad decision and
have interpreted Elstad as recognizing an exploitation exception
to the general rule that a careful and thorough administration of
the Miranda warnings will insulate a suspects ensuing statements
from a prior Miranda violation. Thus, courts that apply the
Elstad rule occasionally hold that the administration of Miranda
warnings was insufficient to salvage the admissibility of the
suspects ensuing statements because, under the facts of the
particular case, the police improperly exploited the suspects
prior unwarned admission.16
Indeed, the United States Supreme Courts recent
decision in Missouri v. Seibert, 542 U.S. __, 124 S.Ct. 2601, 159
L.Ed.2d 643 (2004), can be viewed as a further development of
Elstads exploitation exception.
The defendant in Seibert conspired to burn down her
house and, in the process, kill a mentally ill teenager who was
living with her family.17 Five days after the arson and
homicide, the police arrested Seibert, but they did not read her
her Miranda rights. At the police station, a police officer
questioned Seibert for 30 to 40 minutes. During this
interrogation, Seibert confessed that the plan was for the
teenager to die in the fire. The officer then broke off
questioning for 20 minutes. At the end of this 20-minute break,
he returned and gave Seibert her Miranda warnings, whereupon
Seibert waived her rights in writing. The officer then resumed
his questioning, confronting Seibert with her earlier unwarned
admissions and getting her to repeat this information.18
The police officer later testified that he had been
trained (apparently in reliance on the Elstad decision) to
withhold Miranda warnings until a suspect had made as many
incriminating statements as possible, and then to administer
Miranda warnings and have the suspect repeat all of these prior
admissions.19
A plurality of the Supreme Court20 held that the
Miranda warnings given to Seibert were ineffective, and thus
Seiberts statements had to be suppressed, because the Miranda
warnings were not given under circumstances allowing for a real
choice between talking and remaining silent.21 The plurality
explained:
[The] Miranda [decision] addressed
interrogation practices ... likely ... to
disable [an individual] from making a free
and rational choice about speaking ... .
[Miranda] held that a suspect must be
adequately and effectively advised of the
choice the Constitution guarantees ... . The
object of [the] question-first[, warn-later
approach adopted by the police in this case]
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 [Mirandas] strictures,
... 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. ... 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
effectively as Miranda requires. Could the
warnings effectively advise the suspect that
he had a real choice about giving 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 justification 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.
Seibert, 124 S.Ct. at 2609-2610 (citations and some internal
quotations omitted).
The Seibert plurality stated that because Elstad had
withdrawn most Miranda cases from a traditional taint
analysis, the question to be asked in cases such as
Seiberts is whether[,] in the circumstances[,] the
Miranda warnings given [to the suspect] could
reasonably be found effective. If not, then the
[suspects] subsequent statement is inadmissible for
want of adequate Miranda warnings.22 The plurality
noted that
when Miranda warnings are inserted in the
midst of a coordinated and continuing
interrogation, they are likely to mislead [a
suspect] and deprive a [suspect] of knowledge
essential to his ability to understand the
nature of his rights and the consequences of
abandoning them.
Seibert, 124 S.Ct. at 2611 (internal quotations omitted). The
Miranda warnings become misleading when they are
inserted midstream in an essentially uninterrupted
interrogation because
telling a suspect that anything you say can
and will be used against you, without
expressly excepting the statement [that the
suspect has] just given, could lead [the
suspect] to an entirely reasonable inference
that what he [had] just said [to the police
before the Miranda warnings were
administered] will be used [against him],
with subsequent silence being of no avail.
Seibert, 124 S.Ct. at 2611 (emphasis added).
In other words, the interrogation in Seibert was
structured in such a way that, in the words of the
Elstad decision, the police were able to exploit the
[earlier] unwarned admission[s] to pressure [the
defendant] into waiving [her] right to remain silent.
This is not to say that the Seibert plurality relied on
the fact that the police officer consciously structured
the interrogation in this manner. Both the Seibert
plurality and the four dissenters23 disavowed any
reliance on the police officers subjective purpose
for, as Justice OConnor noted in her dissent, the
Supreme Courts Miranda cases have uniformly adopted the
position that [t]houghts kept inside a police officers
head cannot affect [a suspects] experience [of the
interrogation].24
Rather, the Seibert plurality held that the defendants
post-Miranda statements were inadmissible because, objectively
viewing the circumstances from the defendants position, the
administration of Miranda warnings in the middle of the interview
could not have adequately apprised the defendant of the nature of
[her] rights and the consequences of abandoning them.25
The Seibert dissenters were unwilling to join the
plurality because they concluded that the pluralitys analysis of
the effectiveness of the Miranda warnings was indistinguishable
from the cat out of the bag analysis that was rejected in
Elstad.26 However, even the dissenters acknowledged that the
police might have violated Seiberts rights. Quoting Elstad,
Justice OConnor wrote:
The relevant inquiry is whether, in fact, the
[post-Miranda] statement was ... voluntarily
made. ... [The court] must examine the
surrounding circumstances and the entire
course of police conduct with respect to the
suspect in evaluating the voluntariness of
his statements. [Elstad, 470 U.S. at 318,
105 S.Ct. at 1298.] Although I would leave
this analysis for the Missouri courts to
conduct on remand, I note that, unlike the
officers in Elstad, [the officer in Seiberts
case] referred to Seiberts unwarned statement
during the second part of the interrogation
when [Seibert] made a statement at odds with
her [earlier] unwarned confession. ... (
Trice, didnt you tell me that [the boy] was
supposed to die in his sleep?); cf. Elstad,
supra, at 316 ... (officers 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.
Seibert, 124 S.Ct. at 2619-2620 (OConnor, J., dissenting).
We now return to the facts of the interrogation in the
present case. Analyzing those facts under the federal
constitutional law that we have just described, we conclude that
we must suppress Crawfords post-Miranda re-affirmation that there
was cocaine under the seat of his car.
Crawford does not challenge the content of the Miranda
warnings that he received from Lindell. Thus, we begin with the
presumption that Lindells administration of Miranda warnings to
Crawford adequately apprised Crawford of his rights to remain
silent and to consult an attorney before deciding whether to
answer police questions. Moreover, under Elstad, we must presume
that these Miranda warnings dissipated the adverse psychological
effects that normally attend a custodial interrogation, and we
must further presume that these Miranda warnings insulated
Crawford from the psychological pressures potentially exerted by
his earlier unwarned admissions. Nevertheless, we find that the
facts of Crawfords case rebut these presumptions.
As explained earlier in this opinion, Lindell arrested
Crawford for driving with a revoked license. Following this
formal arrest, with Crawford in handcuffs, Lindell searched
Crawfords pockets and found a small pipe that smelled of
marijuana. Upon discovering the pipe, Lindell asked Crawford if
he had anything else in his pockets; Crawford admitted that he
had a small can of marijuana, and Lindell retrieved this
marijuana from Crawfords pocket. Lindell then questioned
Crawford about the contents of Crawfords vehicle; he asked
Crawford if there were any more drugs in the car. At this point,
Crawford admitted that there was cocaine under the seat. That
is, Crawford admitted that he was guilty of a felony.
Upon hearing this, Lindell took Crawford to the patrol
car and, for the first time, advised Crawford of his Miranda
rights. Crawford waived his Miranda rights and agreed to further
questioning.
Lindell began this post-Miranda questioning by
immediately reminding Crawford that he had just confessed to
possessing cocaine under the seat of his car. (Lindell said to
Crawford, Like we were talking about before, you had said you had
coke under the seat.) Lindell then questioned Crawford further
about the cocaine.
Viewing the facts objectively, from the perspective of
a person in Crawfords position, Crawford was subjected to a
continuing interrogation about his possession of cocaine, with
Miranda warnings inserted midstream, with barely an interruption,
and after Crawford had already confessed to this crime.
Employing the analysis adopted by the plurality in Seibert, we
conclude that this midstream administration of Miranda warnings
did not effectively apprise Crawford of the nature of his rights
and the consequences of abandoning them.27 Rather, in these
circumstances, when Crawford heard the Miranda warning that any
statements he made could be used against him, Crawford could
reasonably conclude that his earlier unwarned admissions would be
used against him thus removing any incentive for Crawford to
invoke his right to silence when Lindell immediately asked
Crawford to re-affirm those admissions.
(Compare Graham v. State, 633 P.2d 211 (Alaska 1981),
where our supreme court acknowledged that Miranda warnings can be
misleading in another context. The problem presented in Graham
involved motorists arrested for driving under the influence who
receive both Miranda warnings and the implied consent warning
that precedes the mandatory breath test. On the one hand, the
Miranda warnings tell motorists that they have the right to
remain silent and the right to have an attorney present. But the
implied consent warning tells motorists that they have no right
to refuse to take the breath test, and that they must promptly
decide whether to take the test, regardless of whether they are
able to locate and speak to an attorney first. As our supreme
court noted, There is always the danger, therefore, that the
arrested person may be misled into believing that he or she
either has a right to have counsel present before deciding
whether to take the test, or can refuse to submit to the test
without suffering the threatened consequences of that refusal.28
For this reason, the supreme court held that
[whenever] an arrested person refuses to submit to a [breath]
test, the administering officer must inquire into the nature of
the refusal and, if it appears that the refusal is based on a
confusion about [the] persons rights, the officer must clearly
advise that person that the rights contained in the Miranda
warning do not apply to the [breath test].29)
We further conclude that Crawfords post-Miranda
statements must be suppressed even under the broader reading of
Elstad advocated by the Seibert dissenters. As explained above,
Elstad holds that, following the administration of Miranda
warnings, [a] suspects choice whether to exercise his privilege
to remain silent should ordinarily be viewed as an act of free
will. But Elstad itself recognizes that this presumption can be
rebutted if the police exploit the [earlier] unwarned admission
in a way that pressures the suspect into waiving their rights.
We find that this exploitation exception applies in Crawfords
case.
We acknowledge that Lindell did not subject Crawford to
a lengthy interrogation before he administered the Miranda
warnings to Crawford. However, for purposes of Lindells
investigation into Crawfords illegal possession of drugs, this
short pre-warning interrogation was sufficient: Lindell elicited
Crawfords confession that he knowingly possessed the cocaine
under the seat of his car.
Immediately after Lindell elicited this confession, he
administered Miranda warnings to Crawford and then, essentially
without pause, Lindell reminded Crawford of this confession and
asked him to re-affirm it. Under these circumstances, we
conclude that Crawfords post-Miranda admission stemmed from an
improper exploitation of his earlier statement taken in violation
of Miranda. Thus, the Elstad presumption is rebutted, and
Crawfords post-Miranda statements are inadmissible.
In reaching this conclusion, we are mindful that Judge
Beistline, in his written decision, stated that he believed that
Crawford willingly chose to confess, and that Crawfords post-
Miranda statements were apparently motivated by the belief that
open communication with the police regarding items [that] the
police were likely to find [in their] search [of the car] was
preferable and more beneficial to [Crawford, because it showed
that] he was cooperative.
But it is clear that Judge Beistline did not rely on
his conclusions about Crawfords motive for confessing. As the
judge himself conceded (immediately after making the above-quoted
statement), determining a defendants actual subjective belief ...
at the time statements were made ... is purely speculative.
Moreover, Crawfords subjective reasons for deciding to
confess are legally irrelevant to a Miranda analysis. Both the
Seibert plurality and the Seibert dissenters expressly re-affirm
and adhere to the doctrine that Miranda rulings hinge on an
objective view of the facts of the interrogation, not on an
inquiry into the subjective motives of either the police
interrogator or the suspect.
(Alaska law is the same. See State v. Smith, 38 P.3d
1149, 1158 (Alaska 2002), in which the supreme court stated that
a persons subjective belief as to whether they are in custody is
not controlling. And see Aningayou v. State, 949 P.2d 963, 968
(Alaska App. 1997), in which this Court held that the assessment
of whether a person is in custody for Miranda purposes must be
made irrespective of [the officers] subjective belief that [the
person is] not a suspect in the crime being investigated.)
Conclusion
For the reasons explained here, we conclude
that Crawfords post-Miranda statements must be
suppressed under federal law. We therefore need not
decide whether, as a matter of state constitutional
law, we should adhere to Browns dissipation of taint
analysis or instead adopt the newer analyses embodied
in either Elstad or Seibert.
The judgement of the superior court is
REVERSED. Crawford is entitled to a new trial.
_______________________________
1 See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
2 422 U.S. 590, 602; 95 S.Ct. 2254, 2261; 45 L.Ed.2d 416
(1975).
3 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
4 Brown, 422 U.S. at 611, 95 S.Ct. at 2265.
5 Elstad, 470 U.S. at 310-11, 105 S.Ct. at 1294.
6 Halberg, 903 P.2d at 1097-1100.
7 See, e.g., Municipality of Anchorage v. Anchorage Daily
News, 794 P.2d 584, 594 n. 18 (Alaska 1990); State v. F/V
Baranof, 677 P.2d 1245, 1255 (Alaska 1984); Puller v.
Anchorage, 574 P.2d 1285, 1288 (Alaska 1978); Perry v.
State, 429 P.2d 249, 251-52 (Alaska 1967). See also
Escambia County v. McMillan, 466 U.S. 48, 51; 104 S.Ct.
1577, 1579; 80 L.Ed.2d 36 (1984), where the United States
Supreme Court declared, It is a well established principle
governing the prudent exercise of this Courts jurisdiction
that normally the Court will not decide a constitutional
question if there is some other ground upon which to dispose
of the case.
8 386 U.S. 707, 710; 87 S.Ct. 1338, 1340; 18 L.Ed.2d 423
(1967).
9 384 U.S. 436, 494-96, 86 S.Ct. 1602, 1638-39, 16 L.Ed.2d
694 (1966).
10386 U.S. at 710-11, 87 S.Ct. at 1340.
11Accord, United States v. Robinson, 20 F.3d 320, 322 (8th
Cir. 1994); Holland v. McGinnis, 963 F.2d 1044, 1050
(7th Cir. 1992); United States v. Anderson, 929 F.2d
96, 99 (2nd Cir. 1991); United States v. Lewis, 833
F.2d 1380, 1384 (9th Cir. 1987).
12 Elstad, 470 U.S. at 310-12, 105 S.Ct. at 1293-94.
13 Id., 470 U.S. at 311, 105 S.Ct. at 1294, quoting Wong
Sun v. United States, 371 U.S. 471, 486; 83 S.Ct. 407, 416; 9
L.Ed.2d 441 (1963) (internal quotations omitted).
14Id., 470 U.S. at 311, 105 S.Ct. at 1294 (internal
quotations omitted).
15Id., 470 U.S. at 316, 105 S.Ct. at 1296 (quoted in
Halberg, 903 P.2d at 1097).
16 Compare Ram¡rez v. State, 789 So.2d 568 (Fla. 1999),
with Davis v. State, 859 So.2d 465 (Fla. 2003). See State v.
Bailey, 677 N.W.2d 380, 392 (Minn. 2004); Jones v. State, 119
S.W.2d 766, 771-76 (Tex. Crim. App. 2003) (en banc); Davis v.
United States, 724 A.2d 1163 (D.C. App. 1998); United States v.
Anderson, 929 F.2d 96, 102 (2nd Cir. 1991); United States v.
Carter, 884 F.2d 368 (8th Cir. 1989).
17 Seibert, 124 S.Ct. at 2602.
18 Id.
19 Id. at 2606.
20 Justice Souter wrote the plurality opinion, joined by
Justices Stevens, Ginsburg, and Breyer.
21 Seibert, 124 S.Ct. at 2608.
22Id. at 2610 n. 4.
23Justice OConnor, joined by Chief Justice Rehnquist and
Justices Scalia and Thomas.
24Id. at 2617. Only Justice Kennedy based his decision on
the police officers subjective intent to use Elstad in
a way that would circumvent Miranda. Id. at 2614-16.
Justice Breyer, writing separately, stated that he
would recognize a good-faith exception to the rule
advocated by the plurality. Id. at 2613-14. But
Justice Breyer joined the plurality opinion, and the
plurality opinion expressly disavows any inquiry into
the interrogating officers subjective intention. See
id. at 2612 n. 6. Instead, the plurality opinion
repeatedly refers to an objective measure of the
circumstances. See id. at 2610, 2612. Moreover, the
plurality opinion characterizes the facts of Elstad as
an example of a good-faith Miranda mistake, id. at
2612, a situation in which the officers initial failure
to warn ... may have been the result of confusion as to
whether the brief exchange [between the officer and the
defendant] qualified as custodial interrogation. Id.
at 2611 (internal quotations omitted). It therefore
appears that Justice Breyers good-faith exception
encompasses situations in which the police reasonably
but mistakenly conclude that they are not subjecting
the suspect to custodial interrogation for Miranda
purposes.)
25 Id. at 2611 (citations and internal quotation omitted).
26 Id. at 2619.
27 Seibert, 124 S.Ct. at 2611.
28 Graham, 633 P.2d at 214-15.
29 Id. at 215.
