Burlеy Clifton HARRYMAN, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
No. 78-2459.
United States Court of Appeals, Fifth Circuit.
May 9, 1980.
Douglas M. Becker, Randy E. Drewett, Barbara M. Barron, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges.*
FRANK M. JOHNSON, Jr., Circuit Judge:
This is an appeal from the denial of a motion filed pursuant to
In January, 1973, a Texas jury convicted Harryman of unlawful possession of heroin and assessed punishment at confinement for life in a Texas penitentiary.1 Harryman was sentenced accordingly,2 and the
In June, 1976, Harryman applied to the United States District Court for the Northern District of Texas for a writ of habeas corpus. He contended, as he had in state court, that the introduction into evidence of an incriminating statement made by him after his arrest but before he was given any of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), violated his constitutional rights.3 After argument, the district court accepted the findings and recommendations of a magistrate and concluded that although admission of the statement had been an error of constitutional dimensions, it had been harmless. The district court denied the writ. A panel of this Court reversed that determination and ordered that the writ be issued. Harryman v. Estelle, 597 F.2d 927 (5th Cir. 1979). The panel opinion was automatically vacated when we granted a rehearing en banc. Harryman v. Estelle, 602 F.2d 1244 (5th Cir. 1979). See 5th Cir. R. 17.
The facts are as follows. On August 25, 1972, Harryman registered at a Dallas, Texas, motel. On the evening of September 7, 1972, with Harryman several days behind in his rent, with the motel nearing capacity, and with efforts to reach Harryman having proved futile, an assistant manager of the motel named Sandra Wood entered Harryman‘s room to remove his belongings. In addition to finding traditional personal belongings such as clothing, she discovered a high-powered rifle with a telescopic sight and a variety of apparent narcotics paraphernalia, including at least two spoons that had been burned on the bottom and a number of syringes. She removed everything to a utility closet and called the police.
Two patrolmen responded. One, accompanied by two narcotics officers called in to assist, searched Harryman‘s room with no result. The other examined the removed belongings. A radio check revealed that the rifle had been reported stolen in Colorado. A radio check also revealed that the license plates on the car with which Harryman had registered into the motel had appаrently been stolen. The officers explained to Wood what they had found, told her that they thought it unlikely that Harryman would return, but asked her to call the police station if he did. They then confiscated everything that had been taken from Harryman‘s room and departed.
About eight hours later, at approximately 4:30 a. m., Harryman did return and Wood again called the police. While Harryman was in the lobby paying his bill and attempting to retrieve his belongings, two
Following an evidentiary hearing, the trial court denied Harryman‘s motion to suppress the statement. The arresting officers testified to the statement at trial as part of the state‘s cаse in chief, and it was adverted to by the prosecution in closing argument.
I.
The core of the Supreme Court‘s holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was that:
the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
Id. at 444, 86 S.Ct. at 1612 (footnote omitted).
It seems plain that Miranda, was violated here. It is uncontested that a police officer asked Harryman a question, that Harryman made a direct response, that Harryman was in custody at the time and that he had not yet received a recitation of his rights. The prosecution used the response at trial as part of its case in chief. The basis of the state‘s contention that Miranda was not violated is its claim that Harryman was not subjected to the kind of police questioning that the Supreme Court in Miranda sought to control. It argues that the question asked Harryman was not an attempt to elicit an answer of any sort, much less evidence of a crime, but was rather an exclamation оf surprise.
This argument misunderstands Miranda. Prior to Miranda, the Supreme Court attempted to protect an accused from improper police questioning by holding inadmissible statements that appeared to have been involuntary in light of the totality of their surrounding circumstances, including the characteristics of the accused and the details of the interrogation. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Spano v. New York, 360 U.S. 315, 321 n. 2, 79 S.Ct. 1202, 1206, 3 L.Ed.2d 1265 (1959) (citing 28 cases). Were we to follow such an approach here, we might well find that Harryman‘s statement was voluntary and therefore properly admitted.
But in Miranda, the Court found the totality of the circumstances approach inadequate. Recognizing that in-custody questioning has inherently coercive tendencies, the Court adopted in its place a set of rigid procedural rules. It held that until these rules have been followed, and an accused has been adequately informed of and waived his rights, he may not be questioned. If he is questioned, any statements he makes in response cannot be presented by the prosecution as part of its proof at trial. 384 U.S. at 444-91, 86 S.Ct. at 1612-36. See Michigan v. Tucker, 417 U.S. 433, 443-44, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974).
The rigidity of the Miranda rules and the way in which they are to be applied was conceived of and continues to be recognized as the decisiоn‘s greatest strength. E. g., Tague v. Louisiana, — U.S. —, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980); Miranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630. See also Fare v. Michael C., 439 U.S. 1310, 1314, 99 S.Ct. 3, 5, 58 L.Ed.2d 19 (1978) (Rehnquist, J., on application for stay) (calling rigidity of Miranda its “core virtue“). The decision‘s rigidity has afforded police clear guidance on the acceptable manner of questioning an accused. It has allowed courts to avoid the intractable factual determinations that the former totality of the circumstances approach often entailed. When a law enforcement officer asks a question of an accused and the accused, without the benefit of Miranda‘s safeguards, answers, the totality of the circumstances is irrelevant. The accused‘s answer is simply inadmissible at trial as part of the prosecution‘s case in chief.
The state‘s suggestion that we abandon Miranda‘s rigidity here and temper its prohibition of all unsafeguarded police questioning must be declined. It is not for us to redefine Miranda‘s scope. See, e. g., Fare v. Michael C., 439 U.S. at 1314, 99 S.Ct. at 5.
Under Miranda, courts have no reason or mandate to consider whether, as the state suggests here, a law enforcement officer‘s question was not really a question because, objectively considered, it did not call for a response.4 As this case itself illustrates, this would entail just the kind of difficult and often impossible factual inquiry that the Miranda rules purposely preempt.5 For purposes of Miranda, and the accused‘s Fifth Amendment right not to be compelled to incriminate himself, it is enough to decide that what the officer said could reasonably have had the force of a question on the accused.6 That this was the case here is apparent from the fact that, and the way in which, Harryman responded.
Under Miranda, courts also have no reason or mandate to consider whether or not a police question was asked in an attempt to elicit evidence of a crime.7 Here again the factual difficulties inherent in such an inquiry are of the very sort the Supreme Court in Miranda thought essential to avoid.8 Where a state has alleged that there was a sufficiently compelling noninvestigatory purpose for asking questions of an accused who had not been informed of or waived his rights, we have bent Miranda, considered the factual basis of the allegation, and, where we have found it to be adequately supported, allowed any statements made in response to the ques-
The district court was correct in concluding that the prosecution‘s use of Harryman‘s statement at trial violated Miranda and constituted constitutional error.
II.
As the district court realized, and as Harryman concedes, the finding of a Miranda violation does not end our inquiry. It is well established that the admission of statements obtained in violation of Miranda may be said to constitute harmless error. E. g., Null v. Wainwright, 508 F.2d 340, 343 (5th Cir.), cert. denied, 421 U.S. 970, 95 S.Ct. 1964, 44 L.Ed.2d 459 (1975). Cf. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (admission of pre-Miranda confessions challenged as violative of Fifth and Sixth Amendments subject to harmless error rule).12
In contending that the unconstitutional use of his statement was not harmless error, Harryman relies most heavily on language in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). There the Supreme Court stated that a constitutional error in the admission of evidence cannot be said to have been harmless if there is “a reasonable possibility that the evidence complained of might have contributed to the convictiоn.” Id. at 86-87, 84 S.Ct. at 230. Harryman contends that in prosecutions such as his for crimes in which unlawful intent is an essential element, statements such as his are so overpoweringly incriminating that their improper admission into evidence, absent a properly admitted confession, inevitably gives rise to a reasonable possibility that the statement might have contributed to the conviction.
This contention has no merit. As the Supreme Court made clear in Fahy and in every constitutional harmless error case that it has decided since, the question of whether or not a constitutional error was harmless cannot be answered by considering the error in isolation.13 As the Court stated in Fahy, “it is necessary to review the facts of the case and the evidence ad-
Although we recognize that this is an exacting standard that must be uncompromisingly applied, we have no difficulty in concluding that it is satisfied here. There is no question that the statement admitted against Harryman was incriminating. That it was so is evidenced by the decision of one of the prosecutors to refer to it no less than three times in his closing argument to the jury. But it is plain that the fact that the statement was admitted had no effect on the other, physical evidence adduced against Harryman at trial.15 That evidence, as indicated above, was overwhelming. A condom containing a white powdered substance was found secreted on Harryman‘s person.16 Laboratory tests of the substance proved that it was a mixture of heroin, morphine and procaine.17 Harryman‘s claim that if the statement had not been admitted the jury would have found more credible his attack on the chain of custody of the condom is, like the attack itself, without substance.
Harryman claims, as did his counsel at trial, that the condom that was taken from his person by the police contained only milk sugar and that the police must have confused it at some point before the laboratory testing with another condom that was actually filled with heroin.
Harryman contends that such confusion was a reasonable possibility given the police chemist‘s testimony at trial that the police laboratory occasionally received for testing condoms or packages like them thought to contain narcotics. The chemist‘s testimony could in fact be read to indicate that a
Harryman contends that the confusion most likely occurred between the time police evidence room worker Mary Peck removed the condom from the locked evidence box and the time she “typed it up” for police laboratory analysis. See note 17, supra. Harryman cites Peck‘s testimony that she was new at her job, that she allowed other persons to come into the evidence room to talk to her, and that after she removed Harryman‘s condom from the locked evidence box to the locked evidence room it may have been several days before she “typed it up.” Harryman claims, as his counsel argued to the jury, that “You, from the evidence, can reasonably deduce that there was more than one package like this in that room. Mary Peck didn‘t tеll you how, when she went back to the room, after one or two, three days, she was able to tell you that this was the package that she put in there from [the arresting officers]. All we know is that it set there then when it came time on September 11th, she typed up the papers . . . All right, was she careless in which package she picked up in that property room, or is, for that matter, did someone while they were talking to her move it. We don‘t know, but I submit to you, ladies and gentlemen, that a reasonable doubt is raised by the testimony . . .”
This argument has no factual basis. Even assuming that it is reasonable to suppose that there was another condom in the locked evidence room with which Harryman‘s condom could have been confused, the record conclusively negates Harryman‘s claim that such confusion could have so occurred. The condom did not lie unidentified in the locked evidence room before Mary Peck “typed it up.” Even ignoring the fact that the condom had on it the initials of at least one of the arresting officers (Harryman‘s counsel characterized these initials as “blurred” and “obliterated“), Mary Peck testified, in accordance with the arresting officers’ testimony that they had tagged the condom, that from the time she first saw it, it had attached to it an “offense sheet” that had been filled out by the officers who had made Harryman‘s arrest.
Harryman also contends, as his trial counsel argued, that a reasonable doubt as to the chain of custody of the condom was created by Mary Peck‘s failure to testify, even though no one asked her, where she stored the condom between the time she “typed it up” on September 11 and the time she took it to the laboratory on September 12; by the failure of the arresting officers to individually mark each of the six powder-filled balloons found by the laboratory inside the condom; and by the “totality of the circumstances.”
We simply cannot agree. See generally note 17, supra.
There is no evidence in this case to justify any hesitation in declaring that the erroneous admission of Harryman‘s statement was harmless beyond a reasonable doubt.
AFFIRMED.
AINSWORTH, Circuit Judge, with whom RONEY and FAY, Circuit Judges, join, specially concurring:
I concur in the result and in denial of the writ of habeas corpus herein. Nevertheless, I do not join the Court‘s opinion because I disagree with its holding that a Miranda violation has occurred in this case. In this regard I adopt the reasons with supporting authorities clearly set forth by Chief Judge Coleman in his dissent to the panel opinion in this case. See 597 F.2d at 930-31.
JAMES C. HILL, Circuit Judge, with whom FAY, Circuit Judge, joins, specially concurring:
In view of the majority‘s second holding, that the error was harmless, resolution of the Miranda issue was unnecessary. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936). Since a majority of the court has chosen to reach the issue, I concur in
There are two holdings by our Court in this case. First, in a “punch list” application of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the majority concludes that the constable blundered and that the defendant‘s acknowledgment that the package contained heroin was inadmissible. Having vindicated the prophylactic and judicially convenient rule of Miranda, we repair to the even more convenient “harmless error” rule to forgive the prosecutor for having used that which we condemn the constable for having obtained. Inasmuch as I dissent from both holdings of our majority, I concur in the result. No maxim is sacred. Two wrongs do, I assert, make a right.
In finding that a Miranda violation occurred in this case, the majority holds that no statement made in response to an officer‘s excited utterance is admissible if the excited utterance is properly followed by a question mark when transcribed. The response will be admitted only if the officer was able to postpone his shock and surprise until the Miranda warnings have been read.
The majority expresses an unwillingness to “bend” Miranda in this situation. My view is that no bending is required, for Miranda does not, I suggest, apply to the excited utterance of a police officer. I come to this conclusion because I think it is clear that Miranda restricts “interrogation” of an unwarned arrestee and nothing more. The crucial issue then is what constitutes interrogation. Certainly, interrogation is not synonymous with questioning. Although the two may often coincide, interrogation may occur though no questions be asked. See, e. g., Brewer v. Williams, 430 U.S. 387, 399-400, 97 S.Ct. 1232, 1239-1240, 51 L.Ed.2d 423 (1977); People v. Sanders, 55 Ill.App.3d 178, 13 Ill.Dec. 186, 370 N.E.2d 1213, 1217 (1977); State v. Innis, 391 A.2d 1158, 1162 (R.I.1978); Ochoa v. State, 573 S.W.2d 796, 800-01 (Tex.Ct.Cr.App.1978); State v. Boggs, 16 Wash.App. 682, 559 P.2d 11, 15 (1977). As Judge Reavley‘s opinion demonstrates, the type of interrogation forbidden by Miranda, does not occur where, though a question be asked, it does not have an investigatory purpose. See, e. g., United States v. Castellana, 500 F.2d 325, 326 (5th Cir. 1974) (en banc); United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975); United States v. Menichino, 497 F.2d 935, 941 (5th Cir. 1974).
Clearly, therefore, we cannot decide cases such as this solely on whether the officer‘s statement has at its end a question mark or a period. We can, however, look objectively at the officer‘s conduct and determine whether or not the arrestee was interrogated. See United States v. Lewis, 425 F.Supp. 1166, 1176 (D.Conn.1977). If it is clear that the officer was bent upon obtaining information about criminal activity, the officer was engaged in interrogation. If the offiсer‘s statement, whether framed as a question or not, was the product of shock or surprise, it cannot be said that he was seeking information, and I would find that he was not engaged in interrogation.
Thus, if an officer responds to a loud noise by saying “What‘s that?“, I suggest that an answer such as “I dropped my pistol” would be admissible in a prosecution for unlawful possession of a firearm. On the other hand, if an officer sees a gun lying on the ground and says “does that gun belong to you,” the answer would not be admissible if the Miranda warnings had not yet been given. I therefore dissent from the majority‘s holding that Miranda requires exclusion of statements given in response to the excited utterance of a police officer.
Having held that the appellant was unconstitutionally compelled to incriminate himself, our majority moves on to the courtroom and is not so demanding of the procedures there. The arresting officer, the prosecutor, and the trial judge are all said to have contributed to a violation of the appellant‘s constitutional rights. The initial mistake was made by a police officer in the course of making an arrest in the motel lobby. The second was made jointly by a trained government attorney and a trial judge in a “temple of justice.” I disagree
The concept of harmless error is a difficult one. Often the defendant against whom the evidence appears to be overwhelming is more in need of protection than is one against whom the evidence is slight. A defendant cloaked with but few protections may be more harmed by the removal of one than he who has a multitude of potential defenses available.
Here, appellant‘s only defense was that the substance analyzed and found to be heroin by the government‘s chemists was not the same substance that was taken from him. It was an uphill battle, but he was entitled to try. His chance of creating a reasonable doubt in the minds of the jurors would have been infinitely greater if the prosecution had not been permitted to show that he had admitted that the substance was heroin. The use of the admission helped the prosecutor disprove appellant‘s “chain of custody” defense. Errors that materially help the prosecutor, which from his point of view might be described as “helpful errors,” can hardly be said to have been harmless to the defendant.
In this case, the admission held to have been unconstitutionally extractеd from the defendant would have been enough to convict. See United States v. Crisp, 563 F.2d 1242, 1244 (5th Cir. 1977); United States v. Quesada, 512 F.2d 1043, 1045-46 (5th Cir.), cert. denied, 473 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975). Certainly, it sufficed to remove any doubt his counsel may have created, because it amounted to confirmation of the chemist‘s analysis by the defendant himself. Every argument concerning the government‘s failure to prove that the substance was heroin was met by the compelling fact that the defendant had, after all, admitted that it was heroin.
In my view, Harryman‘s admission harmed his chance of successfully defending against the charge. It should have. It was his voluntary statement, not unconstitutionally obtained. The rule of Miranda does not prevent us from so finding.
Therefore, I concur in the result affirming the conviction.
REAVLEY, Circuit Judge, with whom BROWN, AINSWORTH, RONEY, GEE, TJOFLAT, HILL, FAY and HENDERSON, Circuit Judges, join, specially concurring:
My difference is with the majority‘s holding that the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), were violated in the Texas court.
Perhaps police policy should rigidly require that the Miranda warning be given prior to asking any and all questions. For example, the one in custody stands with a vacant stare, but instead of asking “Can you hear me?” or “What is the matter?” or “Where are your glasses?” the warning must be given. That policy, or one of similar simplicity but a bit more reasonableness, would meet the practical and unmistakable demands of police procedure. And perhaps prosecutors, at a time when the rulings against “involuntary” self-incrimination have becоme so extensive, should exercise better judgment than to elicit testimony of words that came from the defendant unless necessary to prove his guilt. It is not my present concern, however, to discuss correct practices of police or prosecutors. Nor do I particularly enjoy adding to the volumes of judicial debates over whether evidence was admissible or inadmissible but harmless.
It has become the duty of this court to decide whether the elaborate trial and appeal through the courts of Texas should be condemned or even nullified. Unless the constitutional rights of the convicted person require that intervention, it cannot be justified. I do not find it justified in the present case.
In the early morning of September 8, 1972, Dallas police officers Raz and Conway responded to a radio-dispatched burglary call and arrived at the Oak Cliff Travel Lodge. There, on the basis of information provided them by an assistant manager of the inn, they arrested Harryman on suspicion of burglary and of theft of a rifle
Miranda applies only to “custodial interrogation.” 384 U.S. at 444, 478-479, 86 S.Ct. at 1629-1630. Since Harryman had been arrested at the time of his exchange with officer Conway, the only remaining question is whether that exchange constituted “interrogation” forbidden by Miranda. In making this determination it is essential that we not lose sight of the abuses of police overreaching that the Miranda Court sought to avoid by its prescribed warning. See United States v. Jimenez, 602 F.2d 139, 144 (7th Cir. 1979) (“The extent to which Miranda applies to street encounters . . . depends on whether these encounters reflect the type of inherently coercive tactics that may often attend a station-house interrogation.“). See also, Miranda v. Arizona, 384 U.S. at 445-58, 86 S.Ct. at 1612-1619 (detailing the various psychological, coercive tactics used in “interrogation“).
The Miranda Court defined custodial interrogation as “questioning initiated by law enforcement officеrs after a person has been taken into custody . . .” 384 U.S. at 444, 86 S.Ct. at 1612. Yet, courts and commentators alike have agreed that Miranda should not be applied as broadly as this definition, read in isolation, might literally suggest. Rather, the majority of courts have recognized that the prescriptions and proscriptions of Miranda in light of the factual and historical background that the Court there considered, apply only to investigative custodial questioning, aimed at eliciting evidence of a crime.1 Miranda was not directed at non-investigative questioning, incident to routine police func-
Accordingly, this court, sitting en banc, has previously upheld the admissibility of a detainee‘s acknowledgment that he possessed firearms and his production of these firearms, both in response to a query put by an officer before giving Miranda warnings. United States v. Castellana, 500 F.2d 325, 326 (5th Cir. 1974). The question was asked incident to a lawful search of the detainee‘s premises, not to elicit evidence of a crime but to assure the safety of the officers. Id. at 326-27.
Similarly, several courts have upheld the admissibility of responses to routine questions asked during the booking and processing of arrestees and their belongings either before Miranda warnings had been given or after the suspect had requested a lawyer or indicated an intent to remain silent. Accord, Kamisar, supra note 1, at 7 & n. 41 (“There is general agreement that Miranda does not apply to ‘administrative questioning.‘“); Smith, supra note 1, at 704. In United States ex rel. Hines v. La Vallee, 521 F.2d 1109, 1112 (2d Cir. 1975), cert. denied, 423 U.S. 1090 (1976), for example, a rape suspect being transported to the police station in a squad car responded to “questions designed to pass the time” by giving specific information about his marital status and children that later proved to be incriminating. The officers had not given the suspect the prescribed Miranda warnings. The Second Circuit, nonetheless, ruled the response admissible, citing a draft of the ALI Model Code of Pre-Arraignment Procedure § 140.8(5), supra note 2, and stating that in Miranda, “the Supreme Court was concerned with protecting the suspect against interrogation of an investigative nature rather than the obtaining of basic identifying data required for booking and arraignment [such as marital status].” Id. at 1112-13. Accord, United States v. Prewitt, 553 F.2d 1082, 1085-86 (7th Cir.), cert. denied, 434 U.S. 840, 98 S.Ct. 135, 54 L.Ed.2d 104 (1977) (admission of an alias during booking is not within Miranda rule). Cf. Cannistraci v. Smith, 470 F.Supp. 586, 589-91 (S.D.N.Y.1979) (similar dialogue in squad car held not to be proscribed interrogation).
In this same vein of administrative inquiry are questions incident to the inventorying and processing of the belongings of an arrestee. In United States v. La Monica, 472 F.2d 580 (9th Cir. 1972), while inventorying the personal effects of an arrestee, an officer discovered a receipt and asked, “What does this mean?” Id. at 581. The arrestee, who had earlier pretermitted further interrogation until his attorney arrived, gave an incriminating response. In finding the question and response not subject to Miranda, the Ninth Circuit said, “The officer who asked La Monic [sic] about the receipt was not seeking evidence but was trying to identify and inventory La Monica‘s personal effects.” Id. Accord, Parson v. United States, 387 F.2d 944 (10th Cir. 1968) (where sheriff asked arrestees for keys to their car in order to move it off the street, absence of Miranda warnings did not require suppression of their response that car was stolen.)3
Yet, the state interest in many of the mundanities of booking a suspect and inventorying his belongings can hardly be characterized as sufficiently “compelling” to exact exemption from a constitutionally based rule. A more consistent explanation is that the existence of a non-investigative function (compelling or no) for these routine or incidental questions does not require the affirmative creation of an exemption to Miranda, but rather, by implicitly contradicting investigation or the existence of investigative purpose, it removes the questions from the genre intended to be regulated by Miranda. That is to say, the foregoing cases are not discrete exemptions to the operation of Miranda; instead, they are concrete examples of a class of routine inquiry — non-investigative questioning incidental to other police functions — to which Miranda simply is not directed.
Officer Conway‘s “What is this?” simply provides another example of this type of inquiry. The question was incidental to Conway‘s routine search of the arrestee, Harryman, before placing him in the squad car. See Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2039-2040, 23 L.Ed.2d 685 (1969). The ascertainment of the nature of items found on the arrestee in the course of such a search is closely akin to inquiries addressed to the accused during booking and inventorying of his personal belongings. The question would have been proper if asked in the process of listing those belongings before Harryman entered jail. If proper there, why not here?
The question could well have been a spontaneous reaction of surprise to the unique cache, as suggested by Chief Judge Coleman in his dissent to the panel opinion. 597 F.2d at 931. It may just as logically have been prompted by the officer‘s need to determine if the item belonging to the arrestee required special handling, either at the scene or in the property inventory at the police station. Was the substance dangerous? Valuable? Perishable? Such a question is of a routine and non-investigative nature, bordering on being merely administrative. Conversely, as Judge Gee observed in Castellana, 500 F.2d at 326, “[n]o rational investigatory purpose could have prompted such a question” when the officer had lawfully discovered and seized the parcel and the whole panoply of police analytical and investigative tools was then available to decipher the package‘s contents.4
I, therefore, disagree with Part I of the majority opinion. I would hold the exchange between officer Conway and Harryman to have been non-investigative, incidentаl to a routine non-interrogative police function, and not within the strictures of Miranda. I concur in the affirmance of the conviction.
THOMAS A. CLARK, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that Harryman‘s Miranda rights were violated by the
The standard of review the majority uses requires the reviewing court to “decide whether, absent the so-determined unconstitutional effect, the evidence remains not only sufficient to support the verdict but so overwhelming as to establish the guilt of the accused beyond a reasonable doubt.” Supra, p. 876. This is an easy enough standard to employ: The appellate judge, sitting, as it were, as a thirteenth juror, reviews the sufficiency of the nonobjectionable evidence introduced at trial and either affirms or reverses as he or she would vote eithеr to convict or to acquit. The majority refers to six cases in support of its position on harmless error review: Brown v. United States, 411 U.S. 223 (1973); Milton v. Wainwright, 407 U.S. 371 (1972); Schneble v. Florida, 405 U.S. 427 (1972); Harrington v. California, 395 U.S. 250 (1969); Chapman v. California, 386 U.S. 18 (1967); and Fahy v. Connecticut, 375 U.S. 85 (1963). A close reading of these cases reveals instead that they do not support the majority‘s interpretation. Indeed, the earliest of these, Fahy, expressly rejects the approach taken by the majority in favor of a yet more exacting standard, and none of the cases following can be said to have qualified the policy set forth in Fahy.
Fahy v. Connecticut, supra, applied a common sense rule of harmless error, one which looks to whether the objectionable evidence might have contributed to the conviction. There the Supreme Court concluded
that the erroneous admission of this unconstitutionally obtained evidence at this petitioner‘s trial was prejudicial; therefore, the error was not harmless, and the conviction must be reversed. We are not concerned here with whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.
375 U.S. at 86-7, 84 S.Ct. at 230 (emphasis added). The majority concedеs the prejudicial impact of the erroneous and repeated use of Harryman‘s statement by the prosecution. But in relying on the strength of the rest of the State‘s case against Harryman, the majority ignores the Supreme Court‘s express directive that we must consider whether the erroneously admitted evidence might have contributed to the conviction. Judge Hill‘s concurrence points accurately to the impact of a confession on a jury.
None of the cases following Fahy has relaxed the standard of review of similar errors of constitutional criminal procedure. Four years after Fahy the Court had to decide in Chapman v. California, supra, whether a California murder conviction which had been obtained in violation of the Court‘s recent ruling in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), had also amounted to harmless constitutional error. In reaffirming the standard enunciated in Fahy, the Court concluded that “[a]n error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless.” 386 U.S. at 23-4, 87 S.Ct. at 828 (emphasis added). Thus, even though the rest of the State‘s case is overwhelming, constitutional error in the admission of evidence cannot be harmless if it nevertheless has a prejudicial impact on the deliberations of the jury. The Chapman Court expanded on the requirements for a showing of harmless error, adding the elements of who had the burden of proof on the issue of harmless error (the “beneficiary of a constitutional error,” id.)
In Harrington v. California, supra, the issue was whether the California trial court had committed harmless error in admitting into evidence against Harrington the confessions of two nontestifying codefendants who were, consequently, not subject to cross-examination, contrary to the Court‘s recent decisions in Bruton v. United States, 391 U.S. 123 (1968), and Pointer v. Texas, 380 U.S. 400 (1965). In finding no prejudicial error in Harrington‘s conviction, Justice Douglas did not qualify the Chapman standard of review. Indeed, he expressly reaffirmed it:
Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two confessions on the minds of an average jury. We admonished in Chapman . . . against giving too much emphasis to “overwhelming evidence” of guilt, stating that constitutional errors affecting the substantial rights of the aggrieved party could not be considered to be harmless . . . .
We do not depart from Chapman; nor do we [delete] it by inference. We reaffirm it.
395 U.S. at 254, 89 S.Ct. at 1728 (emphasis added).1
Each of those cases coming after Harrington was decided on рrecisely the same basis as was Harrington‘s. See Schneble v. Florida, 405 U.S. at 429, 92 S.Ct. at 1058,2 Milton v. Wainwright, 407 U.S. at 373, 92 S.Ct. at 2175,3 and Brown v. United States, 411 U.S. at 226, 93 S.Ct. at 1568.4
The proliferation of dicta in these cases has led the majority into applying the wrong standard of harmless error review. Unnecessary language seems to invite review of the sufficiency of the nonobjectionable evidence alone, even though our attention over and over again is properly called to the prejudicial impact of the objectionable evidence. Thus, we read in Harrington that the case against Harrington was “so overwhelming that unless we [can] say that no violation of Bruton can constitute harmless error, we must leave this state conviction undisturbed,” 395 U.S. at 254, 89 S.Ct. at 1729; in Schneble that “[i]n this case, we conclude that the ‘minds of an average jury’ would not have found the State‘s case significantly less persuasive had the [nontestifying codefendant‘s] admissions been excluded,” 405 U.S. at 432, 92 S.Ct. at 1060; in Milton that “[our] review . . . leaves us with no reasonable doubt that the jury at petitioner‘s 1958 trial would have reached the same verdict without hearing [the interrogating officer‘s] testimony,” 407 U.S. at 377, 92 S.Ct. at 2178; and in Brown that “[t]he testimony erroneously admitted was merely cumulative of other overwhelm-
This interpretation of the standard of review for constitutional error is buttressed by the fact that review of nonconstitutional error in the federal courts has focused for the past thirty years on the impact of the alleged error in light of the surrounding circumstances, notwithstanding the sufficiency of the independent evidence.5 In construing the statutory predecessor to the harmless error provision in the
If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. . . . But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannоt be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Id., 328 U.S. at 764-65, 66 S.Ct. at 1248 (citation and footnote omitted, emphasis added). See, generally, Wright, Federal Practice and Procedure, Criminal §§ 852-55. The Fahy and Chapman Courts were not writing on a clean slate when their turn came to assess the harm in constitutional errors, for the standard of review they applied was no more rigorous, nor less exacting, than that already applicable to errors of a nonconstitutional variety.7
In any case the amount of the independent, nonobjectionable evidence is certainly relevant in assessing whether an asserted error is harmless. The same error would, of course, figure more largely in a close case than in an easy one. But although highly relevant, overwhelming independent evidence of the guilt of the accused is not enough, under Fahy and Chapman, for a finding of harmless constitutional error. However overwhelming the evidence against the accused, error cannot be harmless if prejudicial impact is conceded. Any more lax standard of harmless errоr review, such as that used by the majority, does not follow the rule in the cases discussed above. Moreover, such a standard of harmless error candidly concedes that the rule of law, here Harryman‘s right to have the jury weigh the evidence against him free of the damaging impact of the admission proscribed by Miranda, varies as between the clearly guilty and the not-so-clearly guilty.
The majority in Part I of the opinion rightfully states that the rigidity of the Miranda rule is its core strength. Police-men, prosecutors, and trial courts should
The panel majority concluded that the State failed to carry its burden of demonstrating beyond a reasonable doubt that the error complained of did not contribute to the verdict. Since this standard was correct both in principle and in authority, I would affirm the panel‘s decision reversing the district court‘s denial of habeas relief. Accordingly, I respectfully dissent.