Anthony M. Kennedy

“ 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 , 468 U.S. 420, 430 (1984) . I would apply a narrower test applicable 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. ”

“ An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators 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. ”