State v. Gravel , 135 N.H. 172 ( 1991 )

THAYER, J.,

dissenting: While I agree with the majority’s holding that the defendant’s statements were obtained in violation of Miranda, I disagree that the remedy of exclusion must be extended, under our State Constitution, to non-testimonial evidence derived from that violation.

As the majority points out, the “derivative evidence,” or “fruit of the poisonous tree,” doctrine was developed in the context of the fourth amendment, and it is now black-letter law that evidence obtained through police conduct which violates a defendant’s fourth amendment rights must be suppressed, as well as any evidence acquired as a result thereof. Wong Sun v. United States, 371 U.S. 471 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). But see United States v. Leon, 468 U.S. 897 (1984). It is clear that the purpose of the fourth amendment exclusionary rule is “to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.” United States v. Calandra, 414 U.S. 338, 347 (1974).

Under both the fifth amendment to the United States Constitution and part I, article 15 of the New Hampshire Constitution, a defendant’s involuntary statements must be suppressed, Jackson v. Denno, 378 U.S. 368 (1964); State v. Howard, 17 N.H. 171 (1845); and, more recently, both the United States Supreme Court and this court have found that involuntary statements cannot be used in any way against a defendant at his trial, Mincey v. Arizona, 437 U.S. 385, 402 (1978); State v. Nash, 119 N.H. 728, 733, 407 A.2d 365, 368 (1979). The purpose of the fifth amendment exclusionary rule is most often described as that of assuring trustworthy testimony. See Oregon v. Elstad, 470 U.S. 298, 308 (1985); Michigan v. Tucker, 417 U.S. 433, 448 (1974); United States v. Sangineto-Miranda, 859 F.2d 1501, 1518 (6th Cir. 1988).

The United States Supreme Court, in Miranda v. Arizona, 384 U.S. 436 (1966), determined that an atmosphere of coercion was inherent in all custodial interrogations. Id. at 467. Therefore, the Court fashioned a prophylactic rule to guard against compelled statements which would counterbalance the inherent coercion of custodial interrogation. The rule requires law enforcement officers to advise suspects of certain rights, prior to custodial interrogation. The Supreme Court has mandated that noncompliance with Miranda requires suppression of the defendant’s statements from the prosecution’s case-in-chief, Elstad, 470 U.S. at 307, but that such statements can be used for other purposes “provided of course that the trustworthiness of the evidence satisfies legal standards,” Harris v. New York, 401 U.S. 222, 224 (1971).

Although given the opportunity, the United States Supreme Court has chosen not to extend Miranda’s exclusionary remedy beyond the prosecution’s case-in-chief. The Supreme Court has found that a violation of Miranda “[does] not bar[] the use of unwarned, voluntary statements to impeach a witness, Harris v. New York, [401 U.S. 222, 226 (1971)]; to identify a witness, Michigan v. Tucker, [417 U.S. at 450-52] to locate non-testimonial evidence, New York v. Quarles, [467 U.S. 649, 657-58 (1984)]; nor [does] suppression of a first, unwarned confession bar[] admission of a second confession of guilt, Elstad, [470 U.S. at 318].” United States v. Morales, 788 F.2d 883, 886 (2d Cir. 1986).

Similarly, the federal courts of appeals that have considered the issue before us today have also chosen not to extend the remedy available for a Miranda violation, and uniformly have held that non-testimonial evidence derived from a violation of Miranda is not subject to exclusion. See, e.g., United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1048 (9th Cir. 1990) (deportation record obtained in violation of Miranda admissible at trial so long as there was no coercion or denial of due process); United States v. Bengivenga, 845 F.2d 593, 600-01 (5th Cir.) (bus ticket and baggage claim stubs derived from Miranda violation found admissible at trial), cert. denied, 488 U.S. 924 (1988); Sangineto-Miranda, 859 F.2d at 1516-18 (contraband admissible though its discovery was proximately derived from Miranda violation); Morales, 788 F.2d at 886 (statement obtained in violation of Miranda could be used in establishing probable cause to arrest). In refusing to extend the remedy for a violation of Miranda, the courts of appeals have stressed the different purposes of the exclusionary rules applicable to violations of the fourth and fifth amendments, see Sangineto-Miranda, 859 F.2d at 1518; Morales, 788 F.2d at 886, the Supreme Court decisions in Elstad and Tucker, see Gonzalez-Sandoval, 894 F.2d at 1048, and the fact that a violation of Miranda is not the equivalent of a violation of the fifth amendment itself, see Elstad, 470 U.S. at 306 n.1; Quarles, 467 U.S. at 654; Tucker, 417 U.S. at 444. As one circuit court stated, “Where there is no evidence of coercion or a denial of due process in elicitation of the statements, the object of the fifth amendment exclusionary rule— assuring trustworthiness of evidence introduced at trial — is not served by barring admission of the derivatively obtained evidence or statements.” Gonzalez-Sandoval, 894 F.2d at 1048.

Assuming that we adopted the prophylactic Miranda rule in State v. Nash, 119 N.H. at 730-31, 407 A.2d at 367, the majority’s holding today conflicts with our own precedent. In general, we have previously applied exclusionary rules when the circumstances of the case included an actual violation of the New Hampshire Constitution itself. Under part I, article 15, we have held that involuntary statements are inadmissible and “cannot be used for any purpose.” Nash, 119 N.H. at 733, 407 A.2d at 368 (citing Mincey v. Arizona, 434 U.S. 1343). Under part I, article 19, we have held that any statements made by a suspect during an illegal detention had to be suppressed at trial due to the violation of the suspect’s constitutional rights relating to searches and seizures. State v. Tapply, 124 N.H. 318, 326, 470 A.2d 900, 905 (1983). Thus, disregarding federal precedent with regard to Miranda, a justification for today’s expansion of Miranda’s exclusionary impact might exist if the circumstances of this case involved an actual violation of our State Constitution. However, I find none.

By its extension of Miranda’s exclusionary rule, the majority is in effect taking the position that evidence which is inadmissible in the prosecution’s case-in-chief, even though its discovery did not violate our constitution, should not be admissible to establish probable cause. This result, however, contradicts our long-standing recognition that evidence may be used for the purpose of establishing probable cause even if it would not be admissible at trial. See State v. Pellicci, 133 N.H. 523, 537, 580 A.2d 710, 718-19 (1990) (inadmissible evidence obtained from police dog may be used to establish probable cause to arrest); State v. Maya, 126 N.H. 590, 598, 493 A.2d 1139, 1146 (1985) (in determining probable cause to issue a search warrant, magistrate did not err in considering evidence from a police tracking dog, although the evidence was not admissible at trial); State v. St. Arnault, 114 N.H. 216, 217-19, 317 A.2d 789, 790-91 (1974) (inadmissible hearsay evidence may be used to determine probable cause).

The majority’s sole rationale for today’s expansion oí Miranda — a rationale not raised in the proceedings below, and neither briefed to this court nor argued before this court — is their belief that today’s holding is necessary in order to deter misconduct by police officers. The majority argues that to allow police officers to use statements obtained in violation of Miranda to obtain a search warrant would encourage police officers who are “more concerned with the physical fruits of an unlawfully obtained confession than with the confession itself” to purposefully violate our State Constitution. I do not believe their analysis withstands scrutiny.

The potential evidentiary gain from a violation of Miranda is simply not worth the inherent evidentiary risk. The United States Supreme Court has held that a Miranda violation mandates exclusion of what is arguably the ideal result of police interrogation, the admission or confession of guilt. Indeed, in State v. Phinney, 117 N.H. 145, 370 A.2d 1153 (1977), we acknowledged that admission of a confession is tantamount to a guilty verdict. Id. at 147, 370 A.2d at 1154. For that reason, it is hard to imagine that the police would purposefully violate the requirements of Miranda, and thereby knowingly sacrifice the opportunity to use in the prosecution’s case-in-chief any admission that the suspect might make, in favor of the mere possibility of obtaining a statement that later might lead to the discovery of non-testimonial evidence of dubious probative value. In my opinion, even assuming some deterrent effect exists, “[t]he arguable benefits from excluding such [evidence] by way of possibly deterring police conduct that might compel admissions are . . . far outweighed by the advantages of having relevant and probative [evidence], not obtained by actual coercion, available at criminal trials to aid in the pursuit of truth.” Tucker, 417 U.S. at 461 (White, J., concurring).

“[W]here police simply fail to administer Miranda warnings, the admissibility of nontestimonial physical evidence derived from the uncounseled statements should turn on whether the statements were voluntary within the meaning of the fifth amendment.” Sangineto-Miranda, 859 F.2d at 1518. Because I believe that suppression of the statements themselves from the prosecution’s case-in-chief is sufficient under the facts of this case to advance the purpose of Miranda, and that the grounds stated by the majority for extending Miranda's exclusionary rule are insufficient, I must respectfully dissent.