MISSOURI v. SEIBERT

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600 OCTOBER TERM, 2003
Syllabus
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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604 MISSOURI v. SEIBERT
Opinion of Souter, J.
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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Opinion of Souter, J.
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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614 MISSOURI v. SEIBERT
Opinion of Souter, J.
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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615 Cite as: 542 U. S. 600 (2004)
Opinion of Souter, J.
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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616 MISSOURI v. SEIBERT
Opinion of Souter, J.
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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Breyer, J., concurring
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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Kennedy, J., concurring in judgment
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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619 Cite as: 542 U. S. 600 (2004)
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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620 MISSOURI v. SEIBERT
Kennedy, J., concurring in judgment
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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621 Cite as: 542 U. S. 600 (2004)
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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622 MISSOURI v. SEIBERT
O’Connor, J., dissenting
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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623 Cite as: 542 U. S. 600 (2004)
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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624 MISSOURI v. SEIBERT
O’Connor, J., dissenting
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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O’Connor, J., dissenting
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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627 Cite as: 542 U. S. 600 (2004)
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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628 MISSOURI v. SEIBERT
O’Connor, J., dissenting
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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629 Cite as: 542 U. S. 600 (2004)
O’Connor, J., dissenting
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.