Justice Anthony Kennedy wrote in a concurring opinion that the second confession should be inadmissible only if "the two-step interrogation technique was used in a calculated way to undermine the Miranda warning."

Souter, writing for the plurality, focused on the actual effectiveness of Miranda warnings given after an earlier unwarned confession.

Instead, a court must ask, "Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture?

He set forth a different test for whether the second confession should be admissible: "Courts should exclude the 'fruit' of the initial unwarned questioning unless the failure to warn was in good faith."

Justice Breyer's proposed rule would extend that doctrine to evidence obtained as an indirect result of an interrogation that violated the Fifth Amendment.

He wrote that he "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."

Kennedy suggested that a long break between the two interrogations would usually be sufficient, as would an explanation to the suspect that the first statement would probably be inadmissible in court.

Even if the first confession were coerced, "the court must examine whether the taint dissipated through the passing of time or a change in circumstances."

The general rule is that when there is no majority opinion in a Supreme Court case, the narrowest rationale agreed upon by at least five Justices controls.