Bryant Rogowski's Profile

The Court of Appeals also relied on the fact that we have, after our Miranda
decision, made exceptions from its rule in cases such as New York v. Quarles, 467 U.S. 649 (1984), and Harris v. New York, 401 U.S. 222 (1971). See 166 F.3d, at 672, 689-691. But we
have also broadened the application of the Miranda doctrine in cases such as
Doyle v. Ohio, 426 U.S. 610 (1976), and Arizona v. Roberson, 486 U.S. 675 (1988). These decisions illustrate the
principle-not that Miranda is not a constitutional rule-but that no
constitutional rule is immutable. No court laying down a general rule can
possibly foresee the various circumstances in which counsel will seek to apply
it, and the sort of modifications represented by these cases are as much a
normal part of constitutional law as the original decision.

The Court of Appeals also noted that in Oregon v. Elstad, 470 U.S. 298 (1985), we stated that " `[t]he Miranda
exclusionary rule - serves the Fifth Amendment and sweeps more broadly than the
Fifth Amendment itself.' " 166 F.3d, at 690 (quoting Elstad, supra, at 306). Our
decision in that case-refusing to apply the traditional "fruits" doctrine
developed in Fourth Amendment cases-does not prove that Miranda is a
nonconstitutional decision, but simply recognizes the fact that unreasonable
searches under the Fourth Amendment are different from unwarned interrogation
under the Fifth Amendment.

As an alternative argument for sustaining the Court of Appeals' decision, the
court-invited amicus curiae7
contends that the section complies with the requirement that a legislative
alternative to Miranda be equally as effective in preventing coerced
confessions. See Brief for Paul G. Cassell as Amicus Curiae 28-39. We agree with
the amicus' contention that there are more remedies available for abusive police
conduct than there were at the time Miranda was decided, see, e.g., Wilkins v.
May, 872 F.2d 190, 194 (CA7 1989) (applying Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971), to hold that a suspect may bring a
federal cause of action under the Due Process Clause for police misconduct
during custodial interrogation). But we do not agree that these additional
measures supplement §3501's protections sufficiently to meet the constitutional
minimum. Miranda requires procedures that will warn a suspect in custody of his
right to remain silent and which will assure the suspect that the exercise of
that right will be honored. See, e.g., 384 U.S., at 467. As discussed above,
§3501 explicitly eschews a requirement of pre-interrogation warnings in favor of
an approach that looks to the administration of such warnings as only one factor
in determining the voluntariness of a suspect's confession. The additional
remedies cited by amicus do not, in our view, render them, together with §3501
an adequate substitute for the warnings required by Miranda.

The dissent argues that it is judicial overreaching for this Court to hold
§3501 unconstitutional unless we hold that the Miranda warnings are required by
the Constitution, in the sense that nothing else will suffice to satisfy
constitutional requirements. Post, at 10-11, 22-23. But we need not go farther
than Miranda to decide this case. In Miranda, the Court noted that reliance on
the traditional totality-of-the-circumstances test raised a risk of overlooking
an involuntary custodial confession, 384 U. S, at 457, a risk that the Court
found unacceptably great when the confession is offered in the case in chief to
prove guilt. The Court therefore concluded that something more than the totality
test was necessary. See ibid.; see also id., at 467, 490-491. As discussed
above, §3501 reinstates the totality test as sufficient. Section 3501 therefore
cannot be sustained if Miranda is to remain the law.