A conflicted Supreme Court debated Tuesday how much leeway to give police who mistakenly or deliberately fail to give suspects the familiar warning beginning with "You have the right to remain silent."
Some of the justices are critics of the court's landmark 1966 Miranda v. Arizona ruling, which requires the warnings. They have an opportunity to loosen restrictions on police in four cases this term, including two that were argued Tuesday.
Their debate illustrated deep divisions on how much freedom to give officers.
Justices considered whether authorities could use evidence at trial if it was obtained from people who had not been told immediately of their Miranda rights and whether police may question suspects before reading them their rights as part of a strategy to get information to use in a second, "official" interrogation.
The two cases show that police have discovered ways to get around telling people that they have a right to remain silent and see an attorney, public defender Jill Wichlens told the justices, part of a movement "to thumb their noses at this court's Miranda decision."
Justice Stephen Breyer told Wichlens that he was concerned about putting too many restrictions on front-line officers. "Is it fair to ask a policeman ... to be a lawyer?" he asked.
"He has to have attended Police Academy 101," she said.
Colorado, Missouri cases
Wichlens represents a Colorado man who was accused of harassing his ex-girlfriend. The woman told police that he had a gun. When officers went to Samuel Patane's house to question him, they told him that he had a right to remain silent, but he cut them off, saying he already knew his warnings. He then directed them to a gun in his bedroom and was charged with illegal possession of a firearm.
The Denver-based 10th U.S. Circuit Court of Appeals ruled that the gun could not be used as evidence against Patane because its discovery was the result of a statement made without a Miranda warning.
Bush administration lawyer Michael Dreeben said most other courts already allowed evidence despite Miranda violations, which is important for prosecuting criminals.
That prompted a rebuke from Justice David H. Souter, who said he feared "a recipe for disregarding Miranda."
Justice Sandra Day O'Connor said failure to strictly follow Miranda rules in evidence cases "hasn't resulted in disaster, has it?"
"I think it's approaching that," Wichlens responded.
In the second case, which is considered tougher for the government, justices debated whether a lower court was wrong to throw out a woman's murder conviction because of police strategy in questioning her.
Police questioned Patrice Seibert twice, the first time without having read the Miranda warning. The Missouri Supreme Court ruled that the two-step interrogation process was improper.
"This tactic is bad for the police. It's bad for suspects. It's bad for courts. It has three strikes against it," said public defender Amy Bartholow, Seibert's lawyer.
Seibert was convicted of plotting to set a 1997 fire that killed a teenager who had been staying at the family trailer in Rolla,
., a rural town in the Ozarks. Police said she arranged to have her home burned to cover up the death of her 12-year-old son, who had cerebral palsy, to avoid neglect allegations.
Lawyers for Missouri and the Bush administration said double interrogations were not frequently done but should be allowed.
The Supreme Court, which reaffirmed Miranda in 2000, will hear arguments Wednesday in a third Miranda case, which involves an interrogation without the presence of a lawyer, and next spring in the fourth, which deals with the questioning of juvenile suspects.
The cases heard Tuesday are United States v. Patane, 02-1183, and Missouri v. Seibert, 02-1371.