O'Connor, J., dissenting
Ante, at 615–617. In my view, this test cuts too broadly. 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 v. McCary, 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.
The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two step strategy was employed. If the deliberate two step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Cf. Westover v. United States, decided with Miranda v. Arizona, 384 U.S. 436 (1966). Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are in admissible and the conviction cannot stand.
For these reasons, I concur in the judgment of the Court.
Justice O'Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.
The plurality devours Oregon v. Elstad, 470 U.S. 298 (1985), even as it accuses petitioner's argument of "disfigur[ing]" that decision. Ante, at 614. I believe that we
