Ashford v. State

MOYLAN, J. This appeal will twice take us down memory lane, if “memory lane” is an appropriate trope for revisiting the turbulent constitutional law revolution of the 1960’s. The appellant, Troné Tyrone Ashford, was convicted by a Prince George’s County jury, presided over by Judge William B. Spellbring, Jr., of first-degree felony murder and of the use of a handgun in the commission of a felony. On this appeal, he raises three very generic contentions, each of which breaks down into a series of subcontentions. The generic challenges are 1. that Judge Spellbring erroneously denied his pretrial motion to suppress based on an alleged Fourth Amendment violation, 2. that Judge Spellbring erroneously failed to exclude his incriminating statement, and 3. that Judge Spellbring erroneously permitted the admission into evidence of an allegedly confidential spousal communication. 1.

THE SEARCH AND SEIZURE ISSUE The appellant’s contention that Judge Spellbring erroneously denied his motion to suppress the physical evidence (a shotgun that turned out to be the murder weapon) actually consists of the three subcontentions: a. that the warrant application lacked probable cause because of its failure to establish the veracity of the confidential informant; b. that the “good faith exception” to the exclusionary rule was not available to the State because of the police affiant’s bad faith in applying for the warrant; and c. that the appellant’s inculpatory statement was the suppressible “fruit of the poisonous [Fourth Amendment] tree.” ⁸ All three subcontentions are based on the claim that the search and seizure warrant for the appellant’s home was not supported by an adequate showing of probable cause. The application for the search warrant was not intended to be part of the investigation of this case. It was part of the investigation of an unrelated murderous episode that occurred one month after the murder in this case. The Investigation of a Second Murder Led to the Solution of the First Murder September-October of 1998 was an unusually busy time for the appellant, “and thereby hangs [the] tale.” 1 Late on the evening of September 12, 1998, the appellant and three of his colleagues stopped the Buick Regal in which they were riding on the side of Horsehead Road, just off Brandywine Road, in Prince George’s County.

The purpose of the stop was “to rob someone, just to get some cash and leave.” As a lure, they raised the hood. It was at that point that Jayson Brently Youmans drove up in a 1986 Ford Bronco. Youmans stopped in order to give the stalled car a jump start. One of the appellant’s colleagues, “Ted,” killed Youmans with a single blast from the shotgun owned by the appellant.

Another colleague, “John,” then fired five shots into Youmans with “Ted’s .45” just “to make sure he was dead.” For a month, the Youmans murder, known in Prince George’s County as the “Good Samaritan Murder,” remained unsolved. On October 15, the appellant and two colleagues perpetrated a double murder (plus a third attempted murder) in what came to be known in Prince George’s County as the “Dunkin Donuts” murders. Ironically, it was the unraveling of the “Dunkin Donuts” murders that led to the appellant’s being implicated in the “Good Samaritan” murder. The search warrant for the appellant’s home in the “Dunkin Donuts” case produced the shotgun that was the murder weapon in the ⁹ “Good Samaritan” case.

The appellant’s interrogation in the “Dunkin Donuts” case led to his confession in the “Good Samaritan” case. The appellant was convicted on June 17, 1999, of felony murder and related offenses for his role in the “Dunkin Donuts” case. He received a life sentence without the possibility of parole. This Court affirmed those convictions in an unpublished opinion in Ashford v. State (No. 1342, September Term, 1999, filed on September 25, 2000).

His sentence in this case of life imprisonment without the possibility of parole is to be served consecutively to his sentence in the “Dunkin Donuts” case. The Warrant Application On the early evening of October 15, an individual who had witnessed the entire “Dunkin Donuts” criminal episode came into the Homicide Section Office of the Prince George’s County Police Department and gave a full firsthand account of the crime. In that witness’s account, the nickname “Troné” refers to the appellant, Troné Tyrone Ashford. The warrant application recited: On October 15, 1998 at approximately 1900 hours, a witness that was present during this incident responded to the Homicide Section of the Prince George’s County Police Department and advised the following.

The witness stated that he was present when three persons known to him as “John Epps”, “Troné” and “Alicia”, entered the Dunkin Donuts, John Epps was armed with a shotgun. The witness further advised that he saw “John Epps” jump over the counter top. All three victims were ordered to the rear of the store. The “Alicia” subject was seen by the witness, attempting to open the cash registers of the Dunkin Donuts.

The Epps suspect then returned to the vehicle and retrieved a gas can. The witness also advised that he heard several gunshots coming from inside the Dunkin Donuts. “John Epps”, “Troné” and “Alicia” fled the store, after setting it on fire. All three entered a vehicle that was also occupied by this witness. While fleeing the scene, the witness was ¹⁰ told by the “Troné” suspect that he “killed three people in there.” The witness last saw the “Troné” suspect exit the suspect vehicle with the shotgun in hand. “Troné” entered his residence located at 4002 28th Avenue # 103, Temple Hills, Md. The witness had known the Epps subject for several years.

He also knows the Troné and Alicia suspects. The witness had been in Trone’s residence before in the recent past and had seen the shotgun inside the residence. The witness also identified the Epps and Troné suspects by photograph. The Epps suspect has been identified as (John Lemon Epps, B/M79-5-78).

The Troné suspect has been identified as (Troné Tyrone Ashford, B/M/6-9-72). Warrants have been issued charging both Epps and Ashford with two counts each of First Degree Murder. Largely on the basis of that eyewitness account, Judge Thomas J. Love issued a warrant, on October 16, for the search of the appellant’s residence. The subsequent search produced the shotgun that had been used in the murder of Jayson Youmans, as well as in the “Dunkin Donuts” murders.

In denying the appellant’s motion to suppress the shotgun in the present case, Judge Spellbring ruled: Based on my review of the four corners of the warrant, I find that the warrant — the application for the warrant does contain probable cause; finding that the informant — I’m not sure that’s the correct term — the witness who reports the information to the police has — is competent, based on the allegations contained in the warrant; is reliable because he reports matters against his own interests; and consequently, there is sufficient probable cause within the four corners of the application for the signature of the warrant by Judge Love. Invoking the Merrick-Barber Rule: The “Merrick-Barber Rule”? The appellant challenges the probable cause for the search warrant by invoking what he refers to as the “Merrick-Barber Rule.” Initially, we were somewhat non-plussed, never having ¹¹ heard of the “Merrick-Barber Rule.” The appellant refers to the opinion of the Court of Appeals in Merrick v. State, 283 Md. 1 , 389 A.2d 328 (1978) and the opinion of this Court in Barber v. State, 43 Md.App. 613 , 406 A.2d 668 (1979). From the two, the appellant distills the ostensible rule that if a confidential informant is not identified by name in a warrant application, then the fact that the information from the informant is a declaration against penal interest does not establish sufficient credibility to permit the information from the informant, standing alone, to constitute probable cause.

Just for the moment looking at the Merrick and Barber cases in their own right in their own time, we note immediately that the “Merrick-Barber Rule” is reduced to the “Barber Rule.” Merrick does not stand for the rule which invokes its name. In Merrick , the informant was identified by name. The issue before the Court of Appeals was limited. “The narrow issue in this appeal is whether the statements of one who admits involvement in a criminal enterprise meets the ‘veracity’ prong because the statements appear to amount to a declaration against penal interest.” 283 Md. at 6 n. 4, 389 A.2d 328 . The holding was that a declaration against penal interest ipso facto establishes the declarant’s credibility. [T]he probable credibility of the informant here was sufficiently shown on the sole basis of his statements against his penal interest. 283 Md. at 16 , 389 A.2d 328 .

The Merrick opinion expressly refrained from expressing an opinion on the subject for which the appellant cites it as authority. In the facts and circumstances of the case sub judice, we do not reach the question of the credibility of an unidentified informant on the sole basis of his declarations against penal interest. 283 Md. at 16 n. 11, 389 A.2d 328 . Barber , on the other hand, does stand for the proposition for which the appellant cites it. The informant was not identified by name.

This Court held in Barber that in the case ¹² of an unidentified informant, the giving of a declaration against penal interest was not enough, standing alone, to establish the informant’s veracity. [W]e hold that an informant’s credibility cannot be shown solely by declarations against penal interest where the informant has not been identified. 43 Md.App. at 620 , 406 A.2d 668 . Without suggesting for a moment that the present case would have fallen under the “Barber Rule” even in 1979, the overarching and dispositive reality is that both Merrick and Barber lie on the far side of an unbridgeable doctrinal watershed. Both cases were inextricably rooted in the now abandoned two-pronged analysis of Aguilar-Spinelli for testing hearsay information in a warrant application. Both opinions are redolent with the language and with the unmistakable mind-set of Aguilar-Spinelli.

Both opinions shared the fate of Aguilar-Spinelli. As will be discussed, the very concept of examining an informant’s veracity in a doctrinal vacuum chamber did not survive 1983. Quotations from Merrick and Barber are, therefore, sepulchral echoes from a mausoleum that has been shut tight for almost twenty years. The Two-Pronged Test of Aguilar-Spinelli Is Dead The infamous two-pronged test of Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969), has been dead for nineteen years.

The appellant is calling to its ghost in this case. The death of the Aguilar-Spinelli test is a particularly poignant subject for this Court. We in Maryland, and this Court specifically, went as far as any state in the country in taking the Supreme Court’s lessons to heart and in constructing a highly elaborate framework for applying the two-pronged test of Aguilar and Spinelli in analyzing hearsay information in a warrant application. In Stanley v. State, 19 Md.App. 507 , 313 A.2d 847 , cert. denied, 271 Md. 745 (1974), this Court set out with elaborate specificity the various rules ¹³ and ramifications of the Aguilar-Spinelli two-pronged test.

Indeed, as will be discussed, this Court’s articulation of the test in Stanley played a not insignificant role in the overthrow of the entire Aguilar-Spinelli regime nine years later in Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). As the test was ultimately fully elaborated, hearsay information from a confidential informant had to satisfy, quite independently, both the “basis of knowledge” prong (“How did the informant know what he was talking about?”) and the “veracity” prong (“Why should we believe the informant?”). The “veracity” prong, in turn, bifurcated into two disjunctive spurs, the inherent-credibility-of-the-informant spur and the reliability-of-the-information-on-the-particular-occasion spur. From Spinelli , moreover, we distilled two curative devices for initial flaws in the respective prongs of Aguilar .

Independent police verification could shore up the reliability spur of the “veracity” prong. Self-verifying detail could shore up the “basis of knowledge” prong. We distinguished between classes of informants, treating very differently, for example, “citizen-informers” and those “from the criminal milieu.” With respect to the latter, we were obsessed with proven “track records.” Both in the caselaw and on the continuing legal education circuit, Aguilar-Spinelli was a burgeoning cottage industry and we in Maryland exploited it to the fullest. That now almost incomprehensible world came to an abrupt end on June 8, 1983, with the filing of the Supreme Court’s decision in Illinois v. Gates.

The opinion for the Court by Justice Rehnquist, excoriating the hypertechnicality that Aguilar and Spinelli had spawned, singled out this Court and our opinion in Stanley v. State as the ne plus ultra of “a labyrinthine body of judicial refinement” that “bears [little] relationship to familiar definitions of probable cause.” 462 U.S. at 240-41 , 103 S.Ct. 2317 . Justice Rehnquist’s opinion mentioned Stanley v. State by name on four occasions and quoted from it extensively. In only one minor regard did Illinois v. Gates, 462 U.S. at 229 n. 4, 103 S.Ct. 2317 , note agreement with the Maryland Court of Special Appeals: ¹⁴ The decision in Stanley , while expressly approving and conscientiously attempting to apply the “two-pronged test” observes that “[t]he built-in subtleties [of the test] are such, however, that a slipshod application calls down upon us the fury of Murphy’s law.” 19 Md.App. at 528 , 313 A.2d 847 . Indeed, the opinion of the Supreme Court of Illinois in People v. Gates, 85 Ill.2d 376 , 53 Ill.Dec. 218 , 423 N.E.2d 887 (1981), that was reversed by Illinois v. Gates, had itself relied on this Court’s opinion in Stanley v. State, citing it and quoting from it on four occasions.

It also had relied on Moylan, Hearsay and Probable Cause: An Aguilar and Spinelli Primer, 25 Mercer L.Rev. 741 (1974). Illinois v. Gates expressly “abandoned” the Aguilar-Spinel-li two-pronged test, with its distinct diagnosis of each prong independently, and substituted a “totality of circumstance” approach. For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli. In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable-cause determinations.

The task of the issuing magistrate is simply to make a practical commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli. 462 U.S. at 238-39 , 103 S.Ct. 2317 (emphasis supplied). • In West v. State, 137 Md.App. 314, 328-29 , 768 A.2d 150 (2001), Judge Thieme described the Supreme Court’s rejection of the Aguilar-Spinelli analysis. ¹⁵ Occasionally in the law, as elsewhere, there is a house cleaning. Old concepts are discarded or dusted off and refurbished, and space is vacated in order to make room for new theories.

Such was the case when it became apparent that the structured nature of these guidelines often undermined law enforcement to an extent greater than the Supreme Court believed necessary. In Gates, Justice Rehnquist, writing for the Court, expressed concern over the difficulty faced by non-lawyer magistrates in applying the complex set of analytical and evidentiary rules that had developed under the Aguilar-Spinelli test. Reasoning that a less rigid common sense analysis would help alleviate this problem, the Supreme Court abandoned these strict guidelines in favor of a “totality of the circumstances” approach. (Emphasis supplied).

Illinois v. Gates was a sharp and decisive break with the past. In Massachusetts v. Upton, 466 U.S. 727 , 104 S.Ct. 2085 , 80 L.Ed.2d 721 (1984), the Supreme Judicial Court of Massachusetts, however, had attempted to take the moderating position espoused by the appellant in this case. Because 1) the informant in the Upton case was “anonymous” or unidentified and 2) the informant’s “statement was not against penal interest,” the Massachusetts high court ruled that the “veracity” prong had not been satisfied. The Massachusetts court chose to read Illinois v. Gates, however, as merely ameliorating the rigors of the two-pronged test by providing that adequate police corroboration could make up for an initial deficit. “The informant’s veracity and the basis of his knowledge are still important but, where the tip is adequately corroborated, they are not elements indispensible to a finding of probable cause.” 390 Mass, at 568, 458 N.E.2d at 721.

In much the same manner, the appellant here seeks to soft-pedal the crack of doom. (“The Supreme Court parted ways, however, with the strict Aguilar-Spinelli calculus in the case of Illinois v. Gates.”). “Parted ways ... with the strict ... calculus”? ¹⁶ The Supreme Court, however, resoundingly repudiated the effort by Massachusetts to equivocate as to the import of Illinois v. Gates or to salvage any part of the “two-pronged test”. We think that the Supreme Judicial Comt of Massachusetts misunderstood our decision in Gates. We did not merely refine or qualify the “two-pf,onged test. ” We rejected it, as hypertechnical and divorced from “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” ■ 466 U.S. at 732 , 104 S.Ct. 2085 (emphasis supplied).

As it plainly said, the Supreme Court “did not merely refine or qualify.” It “rejected.” If Gates was the obituary for the Aguilar-Spinelli test, Upton .was the stake to its heart. The appellant in this case, relying exclusively on two anachronistic Maryland cases from the heyday of Aguilar and Spinelli , focuses in on the erstwhile “veracity” prong as if Illinois v. Gates were little more than a minor bump in the road. Thoroughly chastened by Illinois v. Gates, however, this Court is an unlikely candidate to be tempted to salvage any relic from that now thoroughly discredited anden regime. R.I.P. The Maryland Case Law Confirms The Death of Aguilar-Spinelli In making his preliminary argument that the AguilarSpinelli framework of analysis still retains some residual vitality, the appellant cites Trussell v. State, 67 Md.App. 23 , 506 A.2d 255 (1986); State v. Lee, 330 Md. 320 , 624 A.2d 492 (1993); and Winters v. State, 301 Md. 214 , 482 A.2d 886 (1984).

Those cases, however, do not provide the solace he claims to find in them. In Trussell , this Court pointed out that: Illinois v. Gates substituted this looser [totality of circumstances] approach for the earlier and more rigorous “two-pronged test” of Aguilar v. Texas and Spinelli v. United States. ¹⁷ 67 Md.App. at 29 , 506 A.2d 255 . The case does not support an independent analysis of veracity. In State v. Lee, the holding first by this Court, 93 Md.App. 408 , 613 A.2d 395 (1992), and then by the Court of Appeals was that probable cause had not been established.

The “unidentified confidential informant” in Lee did not speak from personal knowledge but simply passed on information from a more remote unidentified individual. As Judge Bloom pointed out for this Court: The bulk of the evidence contained in the affidavit relates to the statements of an unidentified confidential informant whose information stems not from personal knowledge, but from the uncorroborated statements of yet another unidentified “unwitting individual.” 93 Md.App. at 417 , 613 A.2d 395 . In affirming the decision of this Court, Chief Judge Robert Murphy observed for the Court of Appeals: The factual predicate set out in Mathew’s application for a warrant, to which we must confine our review, consisted essentially of a second-hand rumor: the officer merely recounted information about Lee passed through the informant from his brother. 330 Md. at 326-27 , 624 A.2d 492 . The fault of the affidavit in Lee was not that it failed to satisfy the “veracity” prong independently, but that, even under the “totality of circumstances” approach mandated by Illinois v. Gates, it did not establish either the source’s veracity or his basis of knowledge.

It was the sum total that was lacking, not a severable part. The affidavit did not explain how the brother obtained the incrimination information about Lee. The affidavit did not describe how the brother concluded he could buy drugs from Lee. To be sure, since Gates, the law of search warrants no longer insists upon the strict two-prong test of an informant’s knowledge and credibility derived from Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410 , 89 ¹⁸ S.Ct. 584, 21 L.Ed.2d 637 (1969).

Yet the veracity and basis of knowledge of the informant clearly remain relevant to a probable cause determination. Winters, supra, 301 Md. at 227 , 482 A.2d 886 . The affidavit failed entirely to address either factor in the instant case. 330 Md. at 327 , 624 A.2d 492 (emphasis supplied). In the case now before us, by contrast, the informant witnessed the crime and spoke from detailed firsthand knowledge.

The basis of knowledge was abundantly overflowing. State v. Lee does not stand for the proposition that veracity should be analyzed independently, the proposition for which the appellant, of necessity, cites it. Winters v. State not only does not support, but squarely refutes, the appellant’s position in this case. In that case, as in this, the defendant sought to analyze the veracity of the critical informant in a vacuum.

Appellant’s basic argument is that if the information obtained from Eader is not a declaration against penal interest, then the veracity and reliability of this source is not demonstrated in the affidavit; the foundation for this reasoning are the principles set forth in Aguilar v. Texas and Spinelli v. United States. 301 Md. at 227 , 482 A.2d 886 (emphasis supplied). The Court of Appeals squarely rejected that approach of looking at veracity and basis of knowledge as separate and unrelated issues: [Ajppellant’s singular reliance on Aguilar and Spinelli is unfounded in view of the Supreme Court’s decision in Gates. Gates replaced the rigid technical analysis of the reliability of informant data in Aguilar and Spinelli with a more flexible approach. Id.

Most pertinently for the case now before us, the Court of Appeals in Winters then pointed out that an arguable deficiency as to the proof of veracity can be compensated for by a strong showing, as in this case, with respect to the informant’s basis of knowledge. ¹⁹ “Veracity,” “reliability,” and “basis of knowledge” are still considered relevant inquiries. Gates, 462 U.S. at 233 , 103 S.Ct. at 2329 , 76 L.Ed.2d at 545 . However, rather than give them independent status, they are to be considered in the “totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. Id.

(emphasis supplied). In the Winters case, just as in the case now before us, the informant had “provided a significant amount of detailed information in the affidavit, most of which was observed firsthand.” 301 Md. at 228 , 482 A.2d 886 . As to the compensatory and carry-over capacity of detailed firsthand knowledge, Illinois v. Gates provided an emphatic endorsement. Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case. 462 U.S. at 234 , 103 S.Ct. 2317 (emphasis supplied).

Indeed, the statement by this Court in Stanley, 19 Md.App. at 530 , 313 A.2d 847 , that one analysis could not borrow from another prompted the express disapproval of the Supreme Court in Illinois v. Gates: One frequently cited decision, Stanley v. State, supra at 530, 313 A.2d 847 , remarks that “the dual requirements represented by the ‘the two-pronged test’ are analytically severa-ble and an ‘overkill’ on one prong will not carry over to make up for a deficit on the other prong.” 462 U.S. at 230 n. 5, 103 S.Ct. 2317 . Illinois v. Gates took precisely the opposite tack: ²⁰ We do not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case. 462 U.S. at 230 , 103 S.Ct. 2317 . Even in the cross hairs of a precedential juggernaut, however, the appellant maintains a cheerful outlook on the benign effect of Illinois v. Gates that is as remarkable as it is delusional: Even under the Gates totality-of-the-circumstances test, however, the Merrick-Barber rule of informant credibility remains as possibly the last bright-line rule in determining probable cause within warrant applications. The “Merrick-Barber Rule” As a Stealth Argument The “Merrick-Barber Rule” appears to have been as unfamiliar to the appellant at the time of the suppression hearing as it was to us until this appeal.

In the brief argument before Judge Spellbring, neither case was mentioned by name or even alluded to. There was no argument about the propriety of using the declaration against penal interest rationale as a device to bolster challenged credibility. In the context of declarations against penal interest, there was no mention of Barber’s distinction between a declarant named in the warrant application and an unnamed declarant. 2 ²¹ We are not going to dismiss the “Memck-Barber” argument on the ground of non-preservation, however, lest it give rise to the false impression that the argument might have had merit if it had been preserved. The Totality of Circumstances Was Bounteous Under the “totality of circumstances” approach of Illinois v. Gates, the warrant application in this case satisfied all current requirements magna cum laude.

Quite aside from the fact that a number of the witness’s descriptions of the crime were fully corroborated by independent police observations at the crime scene, 3 the eyewitness account bore every indication of authenticity. ²² In terms of the contribution it made to the totality, the eyewitness’s “basis of knowledge” in this case was a cornucopia. The informant witnessed the crime at close hand and from start to finish. He knew all three of the perpetrators by name and by past acquaintanceship. He saw all three enter the Dunkin Donuts shop, one of them armed with a shotgun.

He saw “John Epps” jump over the counter top, and he saw “Alicia” attempting to open the cash registers. He saw Epps go to the car for a gas can, and he saw the three perpetrators set the Dunkin Donuts shop on fire. Moving outside, he heard several gunshots coming from inside the store. The three perpetrators and the witness left the scene in the same vehicle.

Whether the “witness” was an accomplice or whether he was simply well enough known to the perpetrators that they saw no necessity to eliminate him as a witness is not known. While driving away from the crime scene, the appellant told the witness that he had “killed three people in there.” The witness saw the appellant leave the automobile and go into his residence with the shotgun in his hand. When within hours of a high-profile multiple murder, the police obtain a firsthand account with both the certain identification of the perpetrators and the pin-point location of the murder weapon, a judge’s declination to issue a search warrant for the murder weapon on such a predicate would amount to a dereliction of duty. Under the circumstances, it is not even necessary to mention the strong presumption of validity that warrants enjoy or the highly deferential standard of review that suppression hearing judges and appellate judges alike must apply to another judge’s earlier decision to issue a warrant.

Judge Spellbring was eminently correct in denying the appellant’s motion to suppress. ²³ A Defense in Depth: The “Good Faith” Exception to the Exclusionaiy Rule Even though the State does not need a second line of defense to fall back upon in this case, it is still reassuring to know that it is there. Even if, arguendo, the probable cause for the search warrant were to be deemed to have fallen short, the application for the warrant was not so pitifully bereft of substance as to be laughed out of court. Under the circumstances, it would clearly have been reasonable for the officers to have relied upon the warrant, and the exclusion of the evidence would serve no deterrent purpose. United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. 981 , 104 S.Ct. 3424 , 82 L.Ed.2d 737 (1984).

As an exercise in caution, Judge Spellbring ruled that the second line of defense was impregnably in place: I also find that even if someone were to find that the application does not contain sufficient probable cause, under Leon the police would certainly have a good faith basis to rely on Love’s signing of the warrant and its execution pursuant to his signature of the warrant. As to the efficacy of that second line of defense, our observation in Herbert v. State, 136 Md.App. 458, 488 , 766 A.2d 190 (2001), well describes the lay of the tactical terrain. A second strong incentive for searching with warrants is the almost “fail-safe” security of being able to fall back on the “good faith” exception to the Exclusionary Rule. Massachusetts v. Sheppard (1984); United States v. Leon (1984).

Even when the warrant is bad, the mere exercise of having obtained it will salvage all but the rarest and most outrageous of warranted searches. The “good faith” exception, by contrast, is almost universally unavailable in warrantless contexts. See Arizona v. Evans, 514 U.S. 1 , 115 S.Ct. 1185 , 131 L.Ed.2d 34 (1995). Under the Sheppard Leon “good faith” exception to the Exclusionary Rule, it is hard for the State to lose a suppression hearing.

It is equally hard to figure out why the State would not do everything in its ²⁴ power to exploit that overwhelming advantage whenever possible. (Emphasis supplied). Even if the warrant here were arguably-flawed, it would hardly qualify for what Herbert referred to as one of “the rarest and most outrageous of warranted searches.” Leon and Sheppard created the “good faith” exception to the exclusionary rule. Because it is generally a cautious practice for an appellate court “never to say ‘never,’ ” Leon added that there could be rare and extreme situations in which an officer might forfeit his claim to the “good faith” exception.

Leon’s brief list of those rare and extreme situations is now religiously intoned in every appellate opinion and is promiscuously invoked by every defendant faced with the foreclosing effect of the “good faith” exception. The actual appearances of such extreme situations, however, are about as rare as the appearances of Halley’s Comet. The appellant argues: Here, the erroneous finding of probable cause within the warrant was most likely the product of unfamiliarity on the part of the police and the magistrate with the Merrick-Barber rule. Nevertheless, the absence of the informant’s identify, in the instant case, prohibited a finding of probable cause.

This is a simple and basic rule that has remained virtually unchanged for over twenty years. Thus, the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” The appellant goes on: Here the Barber case placed law enforcement on notice that warrants like the one in the present case inherently lack probable cause. ... It is not unreasonable to expect reasonably well-trained officers to know of, as well as understand the commonsense basis for, the Merrick-Barber rule. With defense counsel apparently ignorant of the so-called “Merrick-Barber Rule” at the time of the suppression hearing and with ourselves utterly oblivious to the very existence of ²⁵ such a “rule,” it would be the height of ill grace to hold that Detective Piazza was unreasonable for being equally unenlightened.

Even if, arguendo, the probable cause showing here was marginally short (it was not), this would not have been an instance where the “affidavit [was] so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” 468 U.S. at 923, 104 S.Ct. 3405 . The Non-Poisoned Fruit Of the Non-Poisonous Tree As a final Fourth Amendment claim, the appellant contends that if the search that produced the shotgun was unconstitutional, then his confession that followed in its wake should also have been suppressed as the “fruit of the poisonous tree.” The quick answer might be that this claim was never raised below and is utterly unpreserved for appellate review. An even quicker answer, however, is that, as we have discussed at length, there was no Fourth Amendment violation. There being no poisonous tree, there could be no poisoned fruit.

Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), and Ryon v. State, 29 Md.App. 62 , 349 A.2d 393 (1975), both relied on by the appellant and both dealing with the attenuation of taint, are, therefore, irrelevant. 2. THE CONFESSION ISSUE The appellant’s contention that Judge Spellbring erroneously denied his motion to suppress his written statement actually consists of the four subcontentions: a. that the written statement was the “fruit of the poisonous tree,” to wit, the unattenuated product of an antecedent Miranda violation; b. that the written confession was also the fruit of the antecedent Miranda violation under Article 22 of the Maryland Declaration of Rights; c. that he never effectively waived his Miranda rights before making the written statement; and ²⁶ d. that the written statement was involuntary under 1) Maryland non-constitutional law, 2) the Due Process Clause of the federal Fourteenth Amendment, and 3) Article 22 of the Maryland Declaration of Rights. The Inquisitorial Sequence On October 19, 1998, the appellant was in lawful police custody for his involvement in the “Dunkin Donuts” case. At about 5:00 p.m. that day, the appellant was transported from the County Detention Center in Upper Marlboro to the Homicide Division in Landover.

At approximately 5:15, Sergeant Norman Miller began to interrogate the appellant. Initially, the appellant seemed eager to talk, in the apparent belief that the interrogation was to be about the “Dunkin Donuts” case. At about 5;40, Sergeant Miller indicated that he wanted to talk about another case. When he left the interview room at 5:44, he indicated that he wanted to get a photo to show the appellant and that he wanted to talk to some people.

The initial phase of the interrogation lasted until shortly before 9:00 p.m., although Sergeant Miller broke it off and left the room for an hour between 5:44 and 6:44 and for another half an hour between 7:33 and 8:00. At 6:17, Sergeant Miller returned briefly to the room to show the appellant a photograph of Donnie Comber, who was involved in the killing of Youmans. When Sergeant Miller came back into the room at 6:44, it was to tell the appellant that the police were talking with the appellant’s wife and with another person about “the killing of the white guy” and not about the “Dunkin Donuts” case. It was only when Sergeant Miller, at some time after 8:15, informed the appellant that the appellant’s wife had implicated him and others in the killing of Youmans that the appellant first acknowledged his involvement.

That was the moment when Sergeant Miller broke off the interrogation, indicated that he wanted to get the appellant’s statement in writing, and proceeded to advise the appellant of his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and to take the appellant’s ²⁷ written waiver of those rights. Until that moment, the appellant had not been Mirandized. With ample support in the testimony of Sergeant Miller, Judge Spellbring found that the appellant’s admission prior to receiving the Miranda warnings was not in a traditional sense involuntary. Because of the Miranda violation, however, that initial acknowledgment of guilt was ruled to be inadmissible in the State’s case in chief.

I must find that the statements made prior to the advice of rights and waiver form received as State’s Exhibit number 1, I find that they are voluntary based on the evidence before me, but I find that they are inadmissible in the State’s case in chief based upon the failure of the police to advise Mr. Ashford of his rights under Miranda , and to take an appropriate waiver of those rights under Miranda . (Emphasis supplied). Miranda was violated. That is beyond dispute.

What remains to be seen is what, if any, adverse impact the antecedent Miranda violation will have on the post 9:00 p.m. written statement that was taken after the Miranda warnings were given and the appellant then waived any rights under Miranda.' 4 ²⁸ “Fruit of the Poisonous Tree” Doctrine: Federal In this case, Judge Spellbring found as a matter of fact that the earlier Miranda violation did not taint the subsequent Mirandized statement. [T]hat statements [were] taken without advisement and waiver of the rights contained within the Miranda decision does not in and of itself cause any subsequent statements which are made after an advisement and waiver of the rights in the Miranda decision to be suppressed as fruits of the poisonous tree. This is a fact that must be considered, with all of the other facts, to determine whether the subsequent statement is a voluntary statement or not. But it is not a controlling fact in determining the admissibility of any subsequent statements. I find that, based upon the willingness and desire even of Mr. Ashford to talk to the Prince George’s County Police on October 19th, that the statements taken without advisement and waiver of the Miranda rights do not effect the voluntariness of the statements that I have received as State’s Exhibit number 2, the written statement and the question and answer statement of Mr. Ashford.

I find that because of his willingness and desire as expressed to the police to talk to them on that night, that the statement received as State’s Exhibit number 2 is a voluntary statement made after the appropriate advice and waiver of the rights under the Miranda decision as contained within State’s Exhibit number 1, and for the reasons contained herein I will deny the defense motion to suppress State’s Exhibit number 2. Having failed to persuade Judge Spellbring that the earlier Miranda violation tainted the subsequent written confession as a matter of fact, the appellant now seeks to convince us that the subsequent statement was conclusively tainted as a matter of law. He urges that we apply the “fruit of the poisonous tree” doctrine, with the Miranda violation as the primary taint ²⁹ and the subsequent statement as a clearly unattenuated consequence.' 5 The appellant relies on “the cat out of the bag” notion as coined by Justice Jackson in United States v. Bayer, 331 U.S. 532 , 67 S.Ct. 1394 , 91 L.Ed. 1654 (1947). In Bayer , there had been an admittedly improper first confession because it had been taken in violation of McNabb v. United States, 318 U.S. 332 , 63 S.Ct. 608 , 87 L.Ed. 819 (1943), requiring that an arrestee be taken promptly before a magistrate.

There was a subsequent properly obtained confession. The issue was whether the second confession had been irrevocably tainted by the first. The trial court had admitted the second confession. The United States Court of Appeals for the Second Circuit reversed, 156 F.2d 964, 970 , citing Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920), and Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939), and holding that the second confession was “patently the fruit of the earlier one.” The Supreme Court granted certiorari.

The appellant now quotes four sentences from the Supreme Court opinion of Justice Jackson and relies heavily on them: Of course, after an accused has once let the cat out of the bag by confession, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as fruit of the first. 331 U.S. at 540 , 67 S.Ct. 1394 (emphasis supplied).

The appellant neglects to quote the very next sentence, which turns a dramatic “about face”: But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, ³⁰ perpetually disables the confessor from .making a usable one after those conditions have been removed. 331 U.S. at 540-41 , 67 S.Ct. 1394 . In Bayer , the Supreme Court actually reversed the Second Circuit and held that “the admission of the confession was not in error.” Id 6 The appellant nonetheless relies on the power of the metaphor. “Once the cat is out of the bag, it cannot be put back in.” “Once the toothpaste is squeezed out, it can never be put back in the tube.” The question remains, however, whether these metaphoric conclusions are sometimes true, as a matter of fact, or always true, as a matter of law. A. Oregon v. Elstad The appellant, in arguing for exclusion as a matter of law, immediately confronts two closely related problems. One is the ambiguous and indeterminate constitutional status of Miranda v. Arizona generally.

The second problem for the appellant is Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), specifically. An understanding of Miranda’s troubled history is necessary to place Oregon v. Elstad in a more intelligible context. Before trying to put the whole issue of Miranda’s quasi-constitutional status in historic perspective, we shall decide this issue on the basis of Oregon v. Elstad. Oregon v. Elstad is clearly and straightforwardly dispositive, whether one enjoys the longer view as to its place in history or not.

Michael Elstad, an eighteen-year-old suspected of burglary, was arrested at his home. He was questioned in his living room without having been given his Miranda warnings. He admitted his involvement in the burglary. An hour later, at the station house, he was Mirandized and gave a fuller written confession.

The trial judge excluded the first confession but admitted the second. The Oregon Court of Appeals ³¹ reversed, holding that the brief period of time between the two confessions did not attenuate the taint. Citing United States v. Bayer, the Court of Appeals concluded that the “cat was sufficiently out of the bag to exert a coercive impact on [Elstad’s] later admissions.” In a 6-3 decision with the majority opinion authored by Justice O’Connor, the Supreme Court reversed the Oregon court. Justice O’Connor initially noted that Elstad’s arguments “rely heavily on metaphor.” 470 U.S. at 303 , 105 S.Ct. 1285 .

She cautioned that both the “fruit of the poisonous tree” metaphor and the “cat out of the bag” metaphor “should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda.” 470 U.S. at 304 , 105 S.Ct. 1285 . In cautioning against too facile a reliance on “fruit of the poisonous tree” cases involving Fourth Amendment violations, Justice O’Connor pointed out that the Fifth Amendment is concerned with the ultimate trustworthiness of the evidence, whereas the Fourth Amendment is concerned with deterring unreasonable police behavior. As long as the confession itself is trustworthy, it is not the function of exclusion to sanction the police for having failed to give Miranda warnings. Judicial disapproval of the police behavior has no part to play in determining admissibility. [A]s we explained in Quarles and Tucker, a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the “fruits” doctrine.

The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. “The exclusionary rule, ... when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth.” 470 U.S. at 306 , 105 S.Ct. 1285 . Elstad further reasoned that only a constitutional violation per se will trigger exclusion under the “fruit of the poisonous tree” doctrine. ³² Respondent’s contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as “fruit of the poisonous tree” assumes the existence of a constitutional violation. 470 U.S. at 305 , 105 S.Ct. 1285 (emphasis supplied). It went on to point out that a Miranda violation is not necessarily a constitutional violation. The Miranda exclusionary rule serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself.

It may be triggered even in the absence of a Fifth Amendment violation. 470 U.S. at 306 , 105 S.Ct. 1285 (emphasis supplied). The opinion reinforced that conclusion with earlier Supreme Court precedents. Justice Stevens expresses puzzlement at our statement that a single failure to administer Miranda warnings is not in itself a violation of the Fifth Amendment. Yet the Court so held in New York v. Quarles and Michigan v. Tucker. 470 U.S. at 306 n. 1, 105 S.Ct. 1285 .

The Supreme Court took pains to explain that a Miranda violation can occur even when the confessions in issue would not be deemed to have been taken in violation of due process. The Court in Miranda required suppression of many statements that would have been admissible under traditional due process- analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment. 470 U.S. at 304 , 105 S.Ct. 1285 . A Miranda violation is not ipso facto a constitutional violation. Miranda’s preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm. 470 U.S. at 307 , 105 S.Ct. 1285 (emphasis supplied).

A statement taken in violation of Miranda is not ipso facto a coerced statement. ³³ The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced. 470 U.S. at 310 , 105 S.Ct. 1285 . Justice O’Connor made it clear that a subsequent statement must be assessed in terms of its own inherent voluntariness and is not automatically tainted by an antecedent Miranda violation. If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same MTemediable consequences as police infringement of the Fifth Amendment itself . It is an unwarranted extension of Miranda to hold that 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, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.

Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. 470 U.S. at 309 , 105 S.Ct. 1285 (emphasis supplied). The Supreme Court then came to grips with a nuanced variation on the cause-and-effect theme. Even if the earlier Miranda violation did not directly produce the subsequent Mirandized statement, the earlier statement itself, taken in violation of Miranda , might have its own catalytic effect under the “cat out of the bag” theory. It is not, under this variation of the theory, “cause # 1” that produces “effect # 2,” but “effect # 1” that produces “effect # 2.” The Supreme Court summarized this nuanced argument.

The Oregon court nevertheless identified a subtle form of lingering compulsion, the psychological impact of the suspect’s conviction that he has let the cat out of the bag and, in so doing, has sealed his own fate. But endowing the psychological effects of voluntary unwarned admissions with ³⁴ constitutional implications would, practically speaking, disable the police from obtaining the suspect’s informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions. As the Court remarked in Bayer : “[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages' of having confessed. He can never get the cat back in the bag.” 470 U.S. at 311 , 105 S.Ct. 1285 (emphasis supplied).

The Supreme Court refused to allow an earlier statement that was voluntary, even if taken in violation of Miranda , to serve as a trigger for secondary exclusion. This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. ... There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect’s will and the uncertain consequences of disclosure of a “guilty secret” freely given in response to an unwarned but noncoercive question, as in this case. 470 U.S. at 312 , 105 S.Ct. 1285 (emphasis supplied). The Supreme Court’s conclusion in Oregon v. Elstad was unequivocal that a second statement, following a mere Miranda violation, will not be automatically excluded and will be assessed in terms of its own inherent voluntariness.

We must conclude that, absent 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. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, ³⁵ the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights. 470 U.S. at 314 , 105 S.Ct. 1285 (emphasis supplied). B. The 34-Year Road From Miranda to Dickerson Faced with the apparently dispositive effect of Oregon v. Elstad, the appellant seeks to deflect it by arguing that the decision of the Supreme Court two years ago in Dickerson v. United States, 530 U.S. 428 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000), undercut most, if not all, of Oregon v. Elstad’s supporting rationale.

Inexorably ingrained in that argument is the constitutional status of the Miranda warnings. Is the Supreme Court’s prescription that the warnings must be given in cases of custodial interrogation something that is constitutional; non-constitutional; or, perhaps, quasi-constitutional? The clash between Miranda and the position taken by the Fourth Circuit in Dickerson was 34 years in the making, but could have been anticipated from the beginning. The confrontation between the two diametric approaches cannot, however, be truly understood in a legal vacuum chamber.

The vicissitudes displayed by the Supreme Court in its handling Miranda can only be understood against the larger backdrop of American political history, notwithstanding institutional protests that the political macrocosm has no bearing on the judicial microcosm. The criminal law phase of the larger “Warren Court Revolution” lasted for almost precisely a decade. It may conveniently be measured as having run from the promulgation of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , in June of 1961, through the promulgation of Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 , in June of 1971. Miranda v. Arizona came at just about the midpoint of that turbulent decade.

The Warren Court majority was fairly perceived, by friend and foe alike, as liberal on the subject of defendants’ rights and as activist in its approach to constitutional interpretation. Miranda , with its prescribed catechism ³⁶ of four warnings, soon came to be looked on as the leading exemplar of that court’s judicial activism. By the time of the presidential election campaign of 1968, a significant body of antagonism had built up, nationwide, against the perceived activism of the Warren Court. The symbol for that Court that 'took on a talismanic quality came to be not Mapp v. Ohio or the school prayer cases, but Miranda v. Arizona.

For better or for worse, Richard Nixon’s 1968 campaign plank of anti-Warren Court, generally, and anti-Miranda, specifically, “played well in Peoria.” In a brief 18-month period in 1970-71, moreover, then President Nixon got the opportunity to remake the Supreme Court, with four new appointees including the new chief justice. The question inevitably soon arose as to what impact, if any, the larger political fortunes would have on Miranda v. Arizona. During the life of the Warren Court, three cases had come before it involving Miranda issues. The defendants won all three.

It is not without significance that in all three cases, certiorari had been granted at the request of the defense. Miranda v. Arizona; Mathis v. United States, 391 U.S. 1 , 88 S.Ct. 1503 , 20 L.Ed.2d 381 (1968); Orozco v. Texas, 394 U.S. 324 , 89 S.Ct. 1095 , 22 L.Ed.2d 311 (1969). By 1971, the political complexion of the Supreme Court had, as a result of the 1968 election, changed dramatically. It was even called by some the “Burger' Nixon Court.” To the surprise of almost all observers, however, the new court did not overrule Miranda.

What it did do was to chip away at Miranda, 1) holding it to be inapplicable in a wide variety of circumstances; 2) holding it to be, even when applicable, easily satisfied or waived; and 3) consigning it to less than full constitutional status in an ambiguously lesser role as an “implementing” or “prophylactic” rule. In the decade between 1971 and the filing of Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , in 1981, eleven Miranda^-related cases came before the new Supreme Court. The prosecution won eleven out of eleven. Perhaps even more significantly, certiorari had been granted at the ³⁷ request of the prosecution in nine out of the eleven cases.

Miranda was clearly suffering disfavored status. Indeed, in Dickerson v. United States, Chief Justice Rehnquist, after expressing some doubt as to “[wjhether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance,” 530 U.S. at 443 , 120 S.Ct. at 2336 , 147 L.Ed.2d at 419 , explained why there was no compelling need to overturn 34 years of stare decisis. If anything our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement, while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief. 530 U.S. at 443 , 120 S.Ct. at 2336 , 147 L.Ed.2d at 420 (emphasis supplied). The Court apparently felt that it had chained the tiger.

During that initial decade of unrelieved disfavor, Miranda was held to be inapplicable because of the absence of custody in three situations. Beckwith v. United States, 425 U.S. 341 , 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976); United States v. Manduja-no, 425 U.S. 564 , 96 S.Ct. 1768 , 48 L.Ed.2d 212 (1976); Oregon v. Mathiason, 429 U.S. 492 , 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977). It was found to be inapplicable because of the absence of interrogation in Rhode Island, v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980). 7 ³⁸ The Miranda rights were held not to have been adequately invoked in [Warden] Fare v. Michael C., 442 U.S. 707 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979). They were held' to have been easily waived in Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), and North Carolina v. Butler, 441 U.S. 369 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979).

A Miranda violation was given diminished status in federal habeas corpus appeals in [Warden] Wainwright v. Sykes, 433 U.S. 72 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). In that decade of unbroken disfavor, the three cases most erosive of the constitutional status of Miranda were the three where there were found to have been violations of Miranda calling for the exclusion of statements from the prosecution’s case in chief. In none, however, was the Miranda violation then held to have been of sufficient gravity to trigger the exclusion of either 1) derivative evidence or 2) the subsequent use of the Miranda-yiolative statement. In Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), Justice Rehnquist wrote for the Court in holding that a Miranda violation was not enough to trigger second-level exclusion under the “fruit of the poisonous tree” doctrine.

He distinguished police conduct that “directly infringed upon respondent’s right against compulsory self-incrimination” and the “separate question” of “whether it instead violated only the prophylactic rules developed to protect that right.” 417 U.S. at 439 , 94 S.Ct. 2357 . The opinion went on to announce that the “procedural safeguards” created by Miranda “were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected” and to “provide practical reinforcement for the right.” 417 U.S. at 444 , 94 S.Ct. 2357 . Michigan v. Tucker concluded that the police conduct at issue here did not abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards ³⁹ later laid doivn by this Court in Miranda to safeguard that privilege. 417 U.S. at 446 , 94 S.Ct. 2857 (emphasis supplied). In Harris v. New York, 401 U.S. 222 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971), a Miranda-violative statement was excluded from the prosecution’s case in chief.

As a mere Miranda violation, however, it could still be used for impeachment purposes in rebuttal. Harris v. New York must be contrasted with Mincey v. Arizona, 437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978). In Mincey , a statement was excludable from the prosecution’s case in chief because it was involuntary. As a true violation of a core constitutional principle, the statement, under the “fruit of the poisonous tree” doctrine, could not be used for any purpose, including impeachment.

The “mere Miranda” violation in Harris had no such toxic powers. Oregon v. Hass, 420 U.S. 714 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975), was another case in which a statement had violated Miranda but was nonetheless deemed voluntary. Although it could not be used in the prosecution’s case in chief, it could be used for impeachment purposes. The Court contrasted statements obtained in actual violation of the privilege against compelled self-incrimination “as opposed to [those] taken in violation of Miranda.” Even after that initial decade of disfavor, the Supreme Court caselaw regularly continued to distinguish between true constitutional principles and the “prophylactic rules” of Miranda.

See Withrow v. Williams, 507 U.S. 680, 690-91 , 113 S.Ct. 1745 , 123 L.Ed.2d 407 (1993) (“Miranda’s safeguards are not constitutional in character.”); Connecticut v. Barrett, 479 U.S. 523, 528 , 107 S.Ct. 828 , 93 L.Ed.2d 920 (1987) (“[T]he Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights.”); Davis v. United States, 512 U.S. 452, 457-58 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994); Duckworth v. Eagan, 492 U.S. 195, 203 , 109 S.Ct. 2875 , 106 L.Ed.2d 166 (1989). ⁴⁰ In New York v. Quarles, 467 U.S. 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984), the Supreme Court reiterated that the “prophylactic Miranda warnings ... are not themselves protected by the Constitution.” 467 U.S. at 654 , 104 S.Ct. 2626 . In recognizing the “public safety exception” to the “prophylactic rules enunciated in Miranda,” 467 U.S. at 653 , 104 S.Ct. 2626 , the Supreme Court expressly acknowledged that if the Miranda warnings had been an imperative of the Fifth Amendment itself, such an exigency exception would have been impossible. As already discussed, Oregon v. Elstad is peppered with such characterizations of Miranda’s less than full constitutional status. Indeed, in his dissent in Oregon v. Elstad, Justice Brennan accurately summed up what the Supreme Court had done, for better or for worse, with Miranda v. Arizona. [T]he Court has engaged of late in a studied campaign to strip the Miranda decision piecemeal and to undermine the rights Miranda sought to secure. 470 U.S. at 319 , 105 S.Ct. 1285 (dissenting opinion by Brennan, J.).

In his dissent in Dickerson v. United States, Justice Scalia agreed: Despite the Court’s Orwellian assertion to the contrary, it is undeniable that later cases have “undermined [Miranda’s ] doctrinal underpinnings.” 530 U.S. at 461 , 120 S.Ct. at 2346 , 147 L.Ed.2d at 431 (dissenting opinion by Scalia, J.) C. Dickerson at the Fourth Circuit The Supreme Court’s relegation of Miranda, over the decades, to .something less than full constitutional status rendered inevitable the question that ultimately came before the United States Court of Appeals for the Fourth Circuit in United States v. Dickerson, 166 F.3d 667 (1999). In the first wave of virulent anti -Miranda feeling following the case’s promulgation in 1966, the Congress of the United States enacted in 1968 what became 18 U.S.C. § 3501 . That provision made the admissibility of confessions in federal trials ⁴¹ turn exclusively on traditional voluntariness. Both the Fourth Circuit in its Dickerson opinion and the Supreme Court in Dickerson v. United States, 530 U.S. at 436 , 120 S.Ct. at 2332 , 147 L.Ed.2d at 415 , recognized that Congress’s intent had been to overrule Miranda: Given § 8501’s express designation of voluntariness as the touchstone of admissibility, its omission of any warning requirement, and the instruction for trial courts to consider a nonexclusive list of factors relevant to the circumstances of a confession, we agree with the Court of Appeals that Congress intended by its enactment to overrule Miranda.

(Emphasis supplied). For 30 years, that Congressional act was essentially overlooked, largely because the Justice Department steadfastly refused to invoke it. Initially, Dickerson had been indicted for bank robbery in northern Virginia. He was questioned by the F.B.I. without having been first Mirandized.

The statement he gave was nonetheless deemed voluntary in traditional terms. The federal District Court suppressed that statement because of the Miranda violation. The government took an interlocutory appeal to the Fourth Circuit. At the Fourth Circuit, the theory raised by the court sua sponte was that since the Miranda catechism was simply a set of “implementing” or “prophylactic” rules, it represented nothing more than the Supreme Court’s acting in its supervisory capacity.

In that capacity, of course, such rules could be overridden by an act of Congress. As the Supreme Court recognized in Dickerson v. United States, 530 U.S. at 436 , 120 S.Ct. at 2332 , 147 L.Ed.2d at 415 : Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the Constitution. The theory continued that in enacting § 3501, Congress had overridden Miranda. The issue before the Fourth Circuit was clear.

If Miranda were, indeed, constitutional, 1) it could not be modified by an act of Congress and 2)it was binding on the states. If, on the ⁴² other hand, Miranda were not constitutional, 1) the Congress could override it with an enactment such as § 3501 and 2) the states were at liberty to ignore it. The Fourth Circuit concluded that both the wording of the Miranda opinion itself and its subsequent characterizations by the Supreme Court indicated that Miranda was not of full constitutional stature. [W]hether Congress has the authority to enact § 3501 turns on whether the rule set forth by the Supreme Court in Miranda is required by the Constitution. Clearly it is not.

At no point did the Supreme Court in Miranda refer to the warnings as constitutional rights. ... Since deciding Miranda, the Supreme Court has consistently referred to the Miranda warnings as “prophylactic” and “not themselves rights protected by the Constitution.” We have little difficulty concluding, therefore, that § 3501, enacted ... pursuant to Congress’s unquestioned power to establish the rules of procedure and evidence in the federal courts, is constitutional. 166 F.3d at 672 (emphasis supplied). The Fourth Circuit forced the Supreme Court to confront its own awkward handling of an embarrassing precedent. D. Dickerson at the Supreme Court As the Dickerson case arrived at the Supreme Court, the inertial weight attaching to the' 34-year-old precedent was extremely heavy.

After acknowledging that the Court might not “agree with Miranda’s reasoning and its resulting rule, were [it] addressing the issue in the first instance,” 530 U.S. at 443 , 120 S.Ct. at 2336 , 147 L.Ed.2d at 419 , the Court went on nonetheless to observe that “the principles of stare decisis weigh heavily against overruling it now.” Id. In concluding that there was no compelling reason to overrule Miranda, even if as a purely academic matter it had been wrongly decided, Chief Justice Rehnquist pointed out two factors in favor of not disturbing the status quo. ⁴³ One was that “our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement.” 530 U.S. at 443 , 120 S.Ct. at 2336 , 147 L.Ed.2d at 420 . The need was not as great as it might have been in 1966. The other was that, even for those who dislike Miranda, the cure might prove to be worse than the disease. [E]xperience suggests that the totality-of-the-circumstances test which § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to and for courts to apply in a consistent manner.

Id. If Miranda were overruled, challenges to confessions would return to the pre-Miranda “totality of circumstances” test for assessing either 1) compulsion under the Fifth Amendment or 2) voluntariness under the Fourteenth Amendment (they are precisely the same thing). Suppression hearings that now take an hour could again, as they once did, take a day or a day and a half. In any event, the Supreme Court declined the invitation to overrule Miranda.

Id. 8 Declining to overrule Miranda, the Supreme Court had to confront the question of its constitutional status. Congress may not legislatively supersede our decisions interpreting and applying the Constitution. This case therefore turns on whether the Miranda Court announced a constitutional rule or merely exercised its supervisory authority to regulate evidence in the absence of congressional direction. ⁴⁴ 530 U.S. at 437 , 120 S.Ct. at 2332 , 147 L.Ed.2d at 415 (emphasis supplied). In then holding that Miranda was constitutionally binding on both the Congress and the states; the Court did to some extent stake out new ground. 9 To the great consternation of Justice Scalia, who in dissent argued for a “black and white” world in which a Supreme Court rule is either constitutional or non-constitutional, 10 the Supreme Court held that the Miranda warnings are constitutionally binding because they are “concrete constitutional guidelines for law enforcement agencies and courts to follow,” 530 U.S. at 439 , 120 S.Ct. at 2333 , 147 L.Ed.2d at 416 ; “safeguards to protect precious Fifth Amendment rights,” 530 U.S. at 450 , 120 S.Ct. at 2340 , 147 L.Ed.2d at 417 n. 4; requirements that are “resting on the Fifth Amendment privilege against self-incrimination,” id.; rules with “constitutional underpinnings,” id.; rules that “safeguard a fundamental trial right,” id.; and rules that are “constitutionally based,” 530 U.S. at 450 , 120 S.Ct. at 2340 , 147 L.Ed.2d at 417 .

What the Supreme Court did in Dickerson is clear. How it did it is not so clear. Initially, it ⁴⁵ concede[d] that there is language in some of our opinions that supports the view taken by [the Fourth Circuit]. 530 U.S. at 438 , 120 S.Ct. at 2333 , 147 L.Ed.2d at 416 . Without then bringing itself to say that Miranda was, indeed, constitutional, the Court was content to observe that the majority opinion [in Miranda ] is replete with statements indicating that the majority thought it was announcing a constitutional rule. 530 U.S. at 439 , 120 S.Ct. at 2333 , 147 L.Ed.2d at 417 (emphasis supplied).

Then engaging in what Justice Scalia denigrated as “bootstrapping,” the majority opinion predicated much of its argument for Miranda’s constitutionality on the fact that “we have consistently applied Miranda’s rule to prosecutions arising in state courts.” 530 U.S. at 438 , 120 S.Ct. at 2333 , 147 L.Ed.2d at 416 . The argument was that Miranda must be constitutional or the Court would not have been able to apply it to the states. There is an element there for reasoning backward from the effect to the cause. The impression is unmistakable that the affirming of Miranda’s constitutional status came through clenched teeth. 11 Through clenched teeth or not, the Dickerson decision is clear.

Whether denominated as “constitutional” per se or as “prophylactic rules implementing a constitutional protection,” the