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542 U.S. ____ (2004)

SUPREME COURT OF THE UNITED STATES

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No. 02—1183

UNITED STATES, PETITIONER v. SAMUEL
FRANCIS PATANE

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

[June 28, 2004]

Justice Breyer, dissenting.

For reasons similar to those set forth in Justice Souter’s dissent and in my concurring opinion in Missouri v. Seibert, ante, at __, I would extend to this context the “fruit of the poisonous tree” approach, which I believe the Court has come close to adopting in Seibert. Under that approach, courts would exclude physical evidence derived from unwarned questioning unless the failure to provide Miranda warnings was in good faith. See Seibert, ante, at __ (slip op., at 1) (Breyer, J., concurring); cf. ante, at 1, n. 1 (Souter, J., dissenting). Because the courts below made no explicit finding as to good or bad faith, I would remand for such a determination.