Clarence Collins v. George J. Beto, Director, Texas Department of Corrections

of 18 U.S.C. §§ violations affirmed; judgment conviction Nine, Six, appellant Counts under alleged being Thirteen, Twelve, vio- 1702, are reversed of U.S.C. §

lations for a district remanded to the

new trial thereon. COLLINS, Appellant, Clarence Walsh, Tex., Houston, for F. William Director, George Depart- BETO, J. Texas appellant. Corrections, Appellee. ment of Jr., Robertson, H. Asst. Dist. Samuel No. 21739. Gen., Wilson, Atty. Atty., R. Asst. Sam Appeals Court of United States Tex., Houston, appellee. Circuit. Fifth June TUTTLE, Judge, Chief Before FRIENDLY,* Cir HUTCHESON and Rehearing July 21, 1965. Denied Judges. cuit Judge. TUTTLE, Chief serving Collins, presently Clarence 99-year penitentiary in a Texas sentence murder with based conviction aforethought, appeals from malice petition denial of district court’s stipulated corpus. parties habeas * question presented “that the sole law, admissibility, as a matter of is the against the of the confession introduced relator this cause.” having charged mur- Collins was Selby in Mrs. Wilma her home dered days November Several killing, Selby admitted to the Mr. at- time some tempting to to kill his someone wife. hire actually know He said he did not who killing, implicated did but several Maggie including Morgan, persons, who Judge, Hutcheson, dissented. Circuit money having Selby’s Mr. admitted taken killing. complicity denied long-time associate Morgan Maggie and was her home 1959, when Houston December Circuit, sitting designation. Of the Second question Morgan, private detective, her. officers arrived Since T.E. talking everybody money-lender, bondsman, with met with “were Maggie representatives that was associated with Mor- of the Houston Police gan,” placed Department, County Collins arrest. was under the Harris Sher- and, admittedly, office, County There was no warrant iff’s and the Harris District probable Attorney’s no arrest.1 Col- cause office. toward With view Headquar- claiming questioned lins was Police at the reward a Houston offered night leading newspaper 12th and ters the for information December again morning 14th, Selby’s apprehension killer, of December of Mrs. Mor- gan an affidavit told which time he the officers that had informa- he executed stating Maggie Morgan guilty party. had once tion that Collins was to kill asked him whether he wanted did not He elaborate further.2 dollars, that, for a thousand someone meeting Morgan, After with thinking joking, paid par- no she was he January 19th, around Hous- P.M. on 7:30 query. ticular attention to her He was ton arrested at his officers Collins given mid-day polygraph test around Waycott. Captain from home orders P.M., charges and was at 6 released why no When asked at trial the State having preferred him. arrest, warrant was obtained for this po- Captain Waycott testified, with the “All Collins’ second encounter we were challenged working investigation. on was resulted We lice January 19, justified charging On didn’t feel man here as inadmissible. 2. In the district left lins Morgan: information He also testified Department what his source of information was. Moore, Headquarters, trict at the testified as follows: Police Captain Waycott, Captain Waycott “Q. “Q. Did he “Q. What? “A. “Q. “A. “A. “A. “Q. Why Attorney this was the man. wanted had been associated with Morgan.” tion was? details as to individual that he basis without a warrant? warrant for his arrest. Did No, Clarence Collins’ meeting We We We You were Department Homicide Division who was group arrested and taken to testified that he had had were not sir.” he tell suspect, for his— was also at the again didn’t “Mr. to talk to him. of Harris with E. some some [Morgan] court, * * * justified you that, you get First Assistant head of the Morgan why he justified did he information, information that he the Houston Police what Judge T. arrest? even after County suspected was Morgan: give you any I don’t a warrant to check his meeting thought explain the getting Wallace getting informa- not sure Houston in 1959 present Ranger Maggie know with Dis- Col- him He we C. about the ris Lloyd Frazier, a member of the Har- “A. “A. “Q. Sir? “A. “Q. “A. That he had “Q. “Q. “A. “A. “A. Other than that he had done “Q. Yes, sir. “Q. Did ^[*****] County information’ murder. which caused was the did word.” face value. lins No, sir, E. T. ever, Wilma No, sir, he knew, Collins had done the from? And did he advise heDid sources knew that Clarence Col- We meeting, What information killing. No, How he got was, took him at sir. meeting he tell Sheriff’s but he said it was subject by Morgan gave you Selby? the information or how he just state in was that what did he we had to take he didn’t tell me where as he triggerman in knew, ? you say with of his you positive office, put it, face value any way whom he the name of Sack how T Morgan: you believe say? also testified killing? the killer of believed, he knew of information it that Clarence of facts right.” liow his positive him at for his got what- Selby Mr. it * * * P.M., questioned with an around offense of that kind Collins was 3 Captain Waycott approximately the basis of the information we had.” minutes and then the officers who consulting representatives After had arrested him for a little than more from the Sheriff’s and District Attor- Having an hour. one of recalled that ney’s offices, police took previously helped these officers clear Ranger headquarters Texas in Houston. accusation, him of some Collins false This location was selected because the stated he would tell this officer “all anyone officers “didn’t * * * to know want about it” and an oral statement made [they] subject had the at the concerning the crime. and Police Sher- testimony time.” The as to what tran- iff’s officers then called in and Col- were spired Ranger Headquarters on Jan- repeated lins his them. statement uary dispute. 19th is in district “during time, court found that Col- Collins was then left alone with Officer engaged lins was in ‘on conversation and Depart- Baker of the Houston Police off’ several of the officers who were ment. Baker testified at the State trial present building, ap- in the questioned Collins about pears serious, pressing to have been advising minutes without him that he questioning.” need make no statement. Baker then took about two down hours to take Col- approximately midnight, At Collins writing. The written lins’ statement in officer, was taken a Sheriff’s accom- statement included the formulation a panied by Morgan, Humble, E. T. warning that Collins need no state- make Texas, community a small on the out- made, statement, ment and that a could Houston, skirts of about ten or twelve against statement, him. This used Ranger Headquarters. miles from the midnight, completed about recited Morgan stayed While in the Sheriff’s car gone Selby Collins had to the house Collins, with the Sheriff’s officer went night Maggie Mor- murder with before a Justice of in the Peace Humble gan It and a woman named Johnson. and complaint swore out a criminal out- further stated that Collins remained charging vagrancy the crime and nam- Maggie Morgan car side while ing Upon the accused as “Joe Smith.” into the went house. complaint, the Justice of the Peace issued a warrant arrest of “Joe Finding unsatisfactory, this statement Smith,” on the basis of which Collins expressed be- to Collins their the officers placed jail. in the Humble Police truth. lief that had not told the entire admitted, and Sheriff’s officers in both January 21st, At around 1:30 A.M. courts, they State and Federal given test, which he was lie-detector charging no basis whatsoever for Collins his own district court found to be at vagrancy and that of- Sheriff’s given request. lie- second He ficer knew that Collins’ name was not Question- test at around detector A.M. “Joe Smith.” A.M. at around 3:15 recommenced overnight Shortly thereafter, Collins remained confessed Collins jail presence ques- Humble Bak- Officer further the crime tioning. January er, Waycott, Captain On the Chief Frazier. afternoon of and Captain the officers oral confession who had arrested After Collins’ night charges him picked Waycott at his home the murder filed up jail telephoned him from the Humble a Justice return- him him, making stops ed arrest war- in order to obtain an few Peace personal business, Ranger time, food and Baker rant. At the same Officer Headquarters writing Beginning began taking down in the second Houston. stated, court, 3. Before the “I didn’t know whether district First Assistant rant. He Attorney good informa- District Moore testified that he information bad it was regard Morgan’s did not information as tion.” n war- justify sufficient to of a the issuance evidentiary three-page principles statement. federal genesis two hours find took almost and. one-half their McNabb v. Unit signed by finally and was Col- transcribe * A.M., January around 21st. Col- [The lins at 87 L.Ed. 819 repeatedly Police taken to Houston rule lins was then McNabb] emphatically station where record of arrest characterized A.M., evidentiary taken made. At about he was be- mere for the federal rule courts, supervisory formal- fore Justice Peace drawn under the ly charged. Court, powers of .2d 'The court stated: (cid:127)construe .2d 681.4 (cid:127)case and which merit there unlawful arrest and Fourteenth Amendments. with the conclusion and Judge Friendly’s separate opinion that ing based, Mapp, missible the (cid:127)confession pression alone. gible stitutional searches teenth is said into evidence 1961, 963, grounds confession lawful sion on matter The district 441, and Gatlin v. U.S.App.D.C. confession was the “fruit” that statements made “The 367 U.S. 371 U.S. evidence arrest under Amendments, hereafter, counsel in in a of law. three Wong However, more Wong like State of his 643, 471, objected obtained require basic, were inadmissible as be grounds: taken when “involuntary”, Sun Sun v. United I violation court. believe, therefore, the Fourth 83 S.Ct. the court declined January recognized and Gatlin and less exposition. What a reversal “involuntary” as to the admission seizures through F.2d Mapp however, (1) (3) reasoning in 1684, following Constitution. States, 407, L.Ed of the Sixth 21st confes Collins was is and Four of an un nebulous, that tan (2) I is inad cases my 6 L.Ed States, in this uncon agree Ohio, v. hold the ex- an n tution Wong I endorse lieving Court’s the decision here under review when it preme vacated Court’s were needed outside of the this court went on Also Constitution. 85, 90-91, Traub v. eration in remanded and federal rule is 83 S.Ct. 1962, Cir., without missibility.” fession unlawfully I of far less than constitutional force. is correct in ^[*] State disagree. Wong “Thus, assuming prior ^[*] 150 Conn. Sun Court repeated supervisory equally applicable (cid:127)5?' it 1899, Connecticut, Wong was to the district court’s ^[*] light Wong more, based, demanded Sun judgment Connecticut, courts. gave position case Rogers Wong obtained while he was Sun. alleging -X- reference 169, L.Ed.2d custody, established not such 229, “for further consid- power, If 1963, Sun’s record upon by -X- v. United stated 11 L.Ed.2d 171. a hint that his con- State v. 1048; itself, 1963, Sun A.2d he has in both state 374 U.S. exclusionary language hint petitioner ^[*] its inad- as there, (dictum). upon Supreme 230, decision, cf. prior Consti- finding States, Traub, not, -X- Fahy 493, Su- be- question applica- hold inadmissible did indeed threshold A incriminating bility obtained statements in this rule case illegal defendants under from while is unlawful whether an arrest. arrest, warrant, lawful, dealt with but both cases An arrest absent convictions, only arresting probable both deci- if the federal officer has largely, appear suspect to have been sions cause to believe that com- entirely, govered Henry [sic] mitted crime. v. United retroactivity Mapp Mapp before the State 4. was decided rule is not Since present completed, process the issue here was this case. 4 L.Ed. which held that fact that an “the il- States, 1949, Brinegar 134; arrest enabled 2d take v. United * * * fingerprints suspect 160, 175-176, while the illegally applicable ar was detained is in itself and rule is L.Ed. 1879. This ground ex- Federal officers. without more a sufficient as well as rests cluding fingerprints] California, 34- them from evi- [the Ker Al L.Ed.2d dence.” 262 also Nues- F.2d at 466. See though may Columbia, probable for arrest lien v. District of cause hearsay, clearly App.D.C. 85, can in 371 based credible cited 485-486, on information or “affidavits be based U.S. at 407. What- stating purely conclusory, may on applicable which are ever standards ly only “technically” illegal, informer’s belief the affiant’s or an an arrest probable without detail cause exists would hold that as ing any ‘underlying circumstances’ manner in which Collins was taken into upon custody clearly which that belief based.” and held in sufficient Ventresca, prima States v. to establish the facie inadmissibili- ty post-arrest Upon of his statements. showing illegal information offered such arrest case, supporting E. appeared here, Collins’ arrest upon burden fell Morgan clearly “tip”, meet prosecution T. does not to show clear and con- test,5 law and the State enforcement vincing evidence “that the connection be- if Collins officers knew it.6 Even tween the and arrest the statement had rights deprived of his constitutional dissipate so ‘become attenuated as to custody at his was taken into ” when he taint’ 371 U.S. at at 83 S.Ct. 19th, evening January home on of by or that the statement was obtained he was so de can no doubt that there “purged primary means of the taint.” up prived in the locked when he was 371 U.S. at S.Ct. 407. jail spurious on a va based Humble establishing that Collins’ con Far from grancy in the name of “Joe warrant separated from the arrest so fession was necessary Thus, predicate Smith.” of his the “taint” as to unrelated to exclusionary application for the of the testimony arrest, unlawful pres Wong indisputedly rule of is Sun unequivo law officers State’s enforcement ent this case. cally precisely of sort demonstrates and Collins’ arrest connection between “[i]n It has stated that been Wong Sun. Wong Sun, illegal dealt with made arrest alone ap Supreme its Court based post-arrest in There the still admissions while exclusionary plication on the custody rule poisonous Unit fruit.” Gatlin v. deterring police con U.S.App.D.C. unlawful States, 1963, need for 407. The duct. 371 U.S. This view but 326 F.2d 672. “only operates theory if approv of deterrence Court’s tressed piece is the citation, an excludable evidence target activity.” Comment, police Bynum 417 n. 436 n. 12.8 It is clear U.S.App.D.C. 262 F.2d Yale L.J. 2, supra. deters un- best “Exclusion footnote 5. See relationship arrest when a causal lawful accompanying 3, supra, and footnote See excluded and the evidence between text. purpose If law the arrest shown. Guilt, Maguire, agents 221-22 7. See Evidence that evidence realize enforcement (1959): court, they pre- will be unavailable will sumably misbehavior, making prosecution, its “The unlawful refrain from designed have evi- should obtain the case and has befouled arrests it; pros- obligation supplied.) (Emphasis to launder dence." Id. at how and when knows ecution incriminating secured.” evidence was its morning obtained on communicado from the time his arrest the confession “target” January January of Col- 21st was the 19th until after his confes- January Collins was lins’ unlawful detention. sion on 21st. was inacces- He custody, family, friends, counsel, kept if because sible to detaining legitimate him had a basis had one. merely long they did, as be- The taint of Collins’ unlawful deten- questioning his detention and were cause purged tion could not “investigation.” Nor can aids their warned, might fact that he have been passage of serve to “dissi- the mere time completed had his oral statement pate If taint” of an unlawful arrest. preparing to while Baker Officer so, sim- this were would be free writing, that he need commit this to day ply keep suspect “on ice” for a Killough make no statement. See interroga- beginning or two an States, 1962, U.S.App.D.C. tasting postpone tion. This would 241; Harv.L.Rev. would not diminish its the fruit but reaffirmation 1222-24 temptation. consid- Collins’ oral cannot be statement here, where, a con Even independent statement. ered confessionv and the nection between the lapse of There was a sufficient neither arrest, may unlawful still the confession Bayer, 1947, time, cf. United States if be admissible establishes 91 L.Ed. “purged prior its the taint” officers significant months) (six nor inculpatory to the time the change Cf. United in circumstances. given. perhaps best Morin, Cir., way accomplish States v. this would be to counsel). (appointment of suspect opportuni 245-246 afford effective purged Nor, believe, ty the taint be of counsel. to obtain the assistance con- Kamisar, Illegal were to hold even we See Searches Seizures “voluntary.” Incriminating Contemporaneous fession was Neglected Dialogue supra, at A on v. United Statements: Procedure, 12. The “voluntari- 1961 U.Ill. at n. Area of Criminal general has Compare for confessions L.F. United States v. ness” test subjected sharp Burke, D.Mass.1963, F.Supp. criticism. been “Involuntary” Kamisar, Con- 511, aff’d, Cir., 1964, Is An What Inbau and Comments fession? Some Interrogation Con- 52,10 Criminal accused was advised Reid’s where the Rutgers oppor fessions, right L.Rev. to counsel. No such his inquiry here; requires which factual tunity indeed there The test was afforded weigh ordinarily requires court all contradicts is no against testimony that allegation in- held the defendant’s that was 9. The the State “Q. “A. “Q. ^[*] testimony him at 8:00 night you uary Because we were Why Why on the court is Humble case, completed. got # 19] instead was he on the 20th? and our it that revealing: jail? Ranger or 9:00 # Captain not released night before, you investigation still being Headquarters didn’t ^[*] o’clock Waycott working taken to at mid- release [Jan- when # 10. Even forded dence is dissent, “A. For the same “Q. “A. Because 20th statement] ? the case. Our not Why so, obtained. See midnight complete. F.2d at [after the otherwise we were still opportunity must you on the his reason.” investigation didn’t release first Judge Aldrich’s night working inculpatory tained evi- of the him af- police.11 particular suspect, suspect That was true in this has inquiry practically police custody, case. would Such been into taken prophylactic police carry process eviscerate the exclusionary effect out a inter- Moreover, rogations if a mere rule. that lends itself to elicit- showing during pe- ing incriminating statements, that a suspect requested riod of unlawful detention was- “volun- has and been de- tary” opportunity its ad- were sufficient establish nied an to consult with missibility, Wong emp- lawyer, would be an his have ty promise, inadmissibility effectively for the of “in- him of his abso- warned voluntary” long been ful- confessions lute silent, to remain constitutional ly recognized.12 Mississip- See Brown v. the accused has been denied pi, ‘the Assistance Counsel’ viola- L.Ed. 682. tion of the Sixth Amendment obligatory up- Constitution as ‘made record, dispute, re- Since the on the States the Fourteenth veals Collins’confession was obtain- Amendment,’ during period detention viola- statement ing dur- elicited rights tion of his constitutional nothing and that interrogation may be used dissipate purge occurred to against him at a criminal trial.” illegal arrest, the taint of his I would 378 U.S. at at 1765. may hold that the confession not be used holding limited, as the Even as evidence him. Had he been contends, state all the enumerated factors effectively afforded the assistance coun- present bar, except in the case making inculpatory sel before state- showing is no ment, might well be different result requested ever of coun- the assistance reached. This is so not on the the- sel.13 But this omission must be viewed ory that the intervention counsel be- inconsequential. tween the arrest and the statement suggested It has “purged arrest, the taint” request in Escobedo for coun- treated the but also because the decision I view merely investiga- sel as evidence that the Illinois, 1964, Escobedo begun tion had to focus on the defendant. 12 L.Ed.2d 977 People Dorado, Cal., 1964, Cal.Rptr. ground granting proper aas alternate Dorado, 957; People P.2d seeking the relief Collins is here. Cal., 1965, Cal.Rptr. 169, P.2d argued It is in- that Escobedo was here (on rehearing banc) ; Note, The en tended to to its own facts. be limited Right During Interro- Counsel Police Those facts summarized the were gation: Escobedo, 53 Aftermath Supreme Court as follows: 337, This finds Calif.L.Rev. 361. view * * * following support passage from where, the “We hold that opinion: here, investigation long- the no is general inquiry interrogation into an er unsolv- “The was con- here begun petitioner but has to focus on crime ducted formal- Connecticut, 1961, implica- disagree any contrary 11. See Culombe v. 367 12. I witb 568, 574, 1860, 1863, might L. U.S. 81 S.Ct. in the dictum tion that be found Rogers supra, Ed.2d 1037: v. United “Certainly, through excess of zeal at 141-142. impatience flaring up aggressive or or temper Considering face of obstinent 13. the circumstances discussed prisoner abused, above, warning faced silence is is it cannot be said that overcoming by immediately might with the task of his lone Collins have received testimony, prior solemn official denials. to the rendition of his statement prisoner writing knows this —knows that no into was efficacious. friendly or disinterested witness is present knowledge may itself —and induce fear.” very ly sel is who Within context of defendant most indicted. penal- case, no should not fact should make needs We counsel. who, petitioner re- not ize defendant under- When difference. standing rights, quested, oppor- does his and was lawyer, request tunity the formal such with his make to consult gen- helpless- investigation had ceased to failure demonstrates * * * investigation require formal of ‘an unsolved ness. To eral applica- request Petitioner had be- for counsel crime.’ accused, purpose tion of would be to and the the rule favor come the interrogation ‘get sophistication him’ whose the defendant fortuitously guilt despite prompted his con- status had confess his right request.” him to not to do make stitutional so.” 485, at 1762. rehearing the court reiterat- On en banc sug- disingenous, however, It would be position. People Dorado, 1965, ed this v. gest unclarity no in the Cal.Rptr. 169, P.2d 361. point. on this Dickson, Cir., 1964, Wright Accord: 882; Hall, Idaho, 878, 336 F.2d State v. may, “it Be this as it settled 268-269. The Third P.2d is a con the assistance counsel recently Appeals Circuit Court of right requisite, fur to be stitutional taken ex the same view. United States depend re nished does not on a counsel Jersey, Russo 351 F.2d rel. v. New quest.” Carnley Cochran, 506, 513, 889, L.Ed. in There can no doubt Culver, 2d also McNeal v. 70. See vestigation prior had focused on Collins 109, 111, 5 L.Ed. gave time his confession. “The 1; Uveges 2d n. v. Commonwealth guiding counsel,” Powell v. hand Pennsylvania, Alabama, 1932, 53 S. prin L.Ed. This required Ct. L.Ed. ciple fully applicable to by public officials more con was withheld interrogation. during police Lee counsel “sewing up” a cerned with sensitive case Cir., 1963, States, 5 322 F.2d v. United rights safeguarding than 770, 777. custody. individual in their A confession Dorado, Cal., 1964, in obtained under these circumstances is In 40 Cal. making 952, 956-957, party Rptr. 264, 268, P.2d it.14 admissible ex Court of California well prior affirmed conviction was pressed rationale of the rule the decision in Escobedo. request for counsel immaterial: makes State, 171 Tex.Cr.R. S.W. strength in an artifi- “We find denied, 1962, 2d requirement defendant cial L.Ed.2d 283. But this counsel; request specifically must my ques decision. The affect one: test must be substantive retroactivity tion of the Escobedo point neces- or not the whether rule is in this Circuit. Pate settled guidance sary protection for of coun- Holman, Cir., 1965, sel has been reached. appeal); (right 775-776 to counsel Alabama, Cir.,

“The who does not real- Williams of 5 defendant v. State rights 1965, 777, (right 341 under the law and counsel ize his F.2d 781 request arraignment). of who coun- at The rationale those therefore does focusing prior showing of an incon- to such I be accused a considerable area Lest Wong pro- regard provides of valuable for the usefulness in which Sun sistent accompanying Vagrancy Wong rule, Douglas, Ar- see text tection. and Sun although 12, point that, Suspicion, supra, 1 out rest Yale L.J. note 70 begun investigtaion Kamisar, Review, focus an has Book 76 Harv.L.Rev. suspect, prob- particular on a Escobedo 1502 redundant, ably is makes Circuit, applicable People Defore, 1926, In cases is here. this dered” v. N.Y. retrospective application 13, 21, 585, (Cardozo, J.), of the basis 150 N.E. finding exclusionary denied, 657, 353, has rule cert. 270 U.S. S.Ct. object provide 784, long of rule is “to of that the L.Ed. opponents shibboleth itself,” exclusionary Hol fairness man, supra, the trial Pate rule 776, pro at or “to debate which has authorita now been procedure.” tively indisputably poli vide fairness resolved. It is Walker, Cir., cy society speedi Linkletter v. States ex rel. 1963, our that criminals be 11, 19. ly apprehended justly rule The Escobedo and convicted. categorization. pursuing fits into this But in this aim we must sedu high lously prejudicing other, avoid In the Court noted that the Escobedo goals. certainly er, goal is One such began interrogation time when cutting of un down of the incidence ‘stage upon focus accused “was the against private persons lawful conduct were most when aid advice’ by public officials. ** petitioner. It was a critical to stage arraign surely government laws, as critical as the “In a exist Alabama, government ment in Hamilton v. State im ence will be 114, perilled L.Ed.2d law it fails to observe the hearing preliminary scrupulously. government White Our Maryland, potent, State of 1050, 373 U.S. S.Ct. omnipresent teacher. happened at good 10 L.Ed.2d 193. What ill, For or for it teaches the interrogation certainly ‘affect could people example. whole its Crime trial’, of Ala contagious. the whole Hamilton v. State government If the be bama, supra, at lawbreaker, 368 U.S. con comes a it breeds [157,] rights ‘may ir every be as tempt law; since man invites retrievably lost, if not then and there himself; a law unto it in become asserted, they when an accused anarchy. To vites declare represented by counsel waives the the administration of the criminal strategic purposes.’ Ibid.” 378 U.S. justifies the means— law end at 1762.15 However falli government may declare perception purpose of an ble one’s in order to commit crimes secure criminal— n exclusionary be, purpose may rule if the private conviction Wainwright, 1963, of Gideon v. bring terrible retribution. 1799,16 9 L.Ed.2d Against pernicious doctrine Alabama, Hamilton v. State resolutely court should set its face.” Douglas 157,17and States, 1928, 277 Olmstead United California, 1963, State 811,18 9 L.Ed.2d J., (Brandeis, dissent A.L.R. 376 pur supports application, the retroactive ing.) pose of must do same. Escobedo brutality, brutality private breeds Public criminal is brutality public rebuke that private “[t]he bru- breeds go regardless because the constable blun- free tality; is the chicken nothing 15. See aso 378 U.S. at There is counsel noose. ’ ” here, sought by “The rule the State trial.” can do for them at the however, more the trial no would make rel. 16. Held retroactive in United States ex interrogation; appeal than an from LaValle, Cir., F. Durocher v. ‘right to use counsel 2d 84 S. very hollow [would be] formal thing [if], trial 1048; Ct. Williams practical purposes, for all Alabama, supra. State already by pre- assured conviction 17. Held retroactive in Williams v. * * * can trial examination.’ ‘One Alabama, supra. imagine cynical saying: prosecutor Holman, “Let the most illustrious them have 18. Held retroactive Pate v. counsel, They escape supra. can’t now. the egg, step must be is to and the circle establish “the crude historical which the * * surrounding public broken. The sector cannot wait facts the confes- private sion,” for to initia- 81 S.Ct. at the sector take the 367 U.S. at findings obligation judge’s far falls to tive. So as the As to these the district erroneous,” clearly play part F.R. “unless lot of the federal courts control light they duty 52(a). of of the lower must from the In the not retreat Civ.P. finding, using contrary full command made after means at their court’s giv- bring precluded from hearing, and to an unlawful end arrests we are thus rights. ing any claim other of to Collins’ violations fundamental consideration convictions, him con- him to make This means is to set aside beat they by are or federal all the circumstances whether state fess. After courts, established, then decide must on such the court based denials are part they mind and public impact had on the of consti- of officials what per- rights tutional of individual of individual.19 will defendant — question haps of “fact” one also case, In officers acted the State when, sort, particularly quite different regard or for the law testimony expert psychological here, rights Consequently, prisoner. of their diminishes somewhat in the record present custody illegal, and relief judge from see- advantage district grant- corpus habeas should have Final- ing prisoner courtroom. in the ed. “inextrica- ly, must decide the the court judgment court The district applica- bly question “the interwoven” reversed case is remanded psychological of stand- fact tion entry appropriate trial court of an larg- judgment informed ards for directing appellant order releas- ordinarily legal conceptions character- er custody unless, ed from a reason- within U.S. as rules law ized time, affords him able the State Texas specifically, inculpatory a new trial in which state- his totality “crude whether January ments made Collins “psychological” facts war torical” shall not be received. These “coercion.” label rants the very depend little later decisions two Judge (concur- FRIENDLY, Circuit witnesses, credibility usual ring) : facts,” ly for “crude is critical historical appellate persuaded precedents that Col Since I am confirm join responsibility voluntary, lins’ confession was not I has considerable court Judge disposition a record judgment in Chief whether directed own form its bespeak Taking view, opinion. particular suffices Tuttle’s case in a Connecticut, prefer more not to to me are v. decide what Culombe coercion. 603-605, questions is also supra, difficult whether U.S. Washington, prevail 1860; Haynes entitled to because v. State (1963); States ex or Escobedo 9 L.Ed.2d 441 Denno, Illinois, Eckwerth rel. 1758,12 (1964). 1958), (2 L.Ed.2d 977 Cir. (1959). 3 L.Ed.2d of a lower standard as review The clearly Judge out type of set judgment Tuttle Chief varies with upon the concessions issue, that the vol- the facts based and we instructed findings of the district sev- involves sides both untariness Connecticut, disregard claimed beat- judge. inquiries. If we eral Culombe single must, circumstance 568, 603-606, we standing characterize first alone 6 L.Ed.2d 1037 Dorado, pre alized. See Cal.Rptr. sometimes disastrous effects P.2d 361. not materi actions dicted such measuring involuntary; of a con- all the voluntariness but when statements together, is not fession. elements are taken possible for feel that con- to Collins’ me mental and Collins’ own emotional expression of were “the free fessions makeup capacity re- his that indicates Indiana, choice,” Watts v. State strikingly pressure The sist low. was 93 L.Ed. judge saying, “A district summarized (1949). testify- psychiatrist psychologist, and a ing behalf, step police was when in Collins’ stated that he first took The although attempt intelligence, they picked up of low not mental- Collins was to defective, they taking ly a had felt he him. him to the and that isolate Instead ability station, they Their police miles drove him ten low to withstand stress.” I.Q. Ranger testimony headquarters, Collins’ was town that across to a reveals popula- percent no so that there would be “interference” the lowest ten “extremely midnight, questioning. ; judgment with the Around tion that his was they “respond transported poor”; him or abnormal- another ten he would *** jail ly attempt what miles to in a small communi- in an to avoid twelve a stress”; ty city, represent his he to him would the outskirts lodged I.Q. “greater target deliberately for a false a was under low him made afternoon, respect suggestibility”; up Col- name. Picked the next and that with resisting pressure, officers character lins rode around with Collins’ hours and back two and half arrived “more like that found children between Ranger ages headquarters at That these o’clock and six.” three evening’s interrogation. special susceptibilities Carried mea- extreme, shuffling given weight gre must the deliberate education be due jail prisoner out- Ohio, from one another Haley clear from v. State community his has itself deem- side L.Ed. 224 enough ed to invalidate a confession. People Spano of State Texas, Ward v. York, 322, 79 S.Ct. New (1942). L.Ed. 1663 3 L.Ed.2d 1265 isolation of Collins This unwarranted circumstances of the confession during compounded, 36-hour revealing. question- also itself are ending period he in his second confession during place hours took normal relatives, friends, no law- saw no no night after Collins had been but late Indeed, yer. had he not been book- since during up day. Spano v. city police taken at the station nor York, supra, of State New might quite judicial officer, he before questioned He was reasonably no one believed that changing officers, presum- who teams would locate him until be able to ably opportunity to them- had an refresh public; police chose to make his arrest gave he which he lacked. After selves it is not to realize the corrosive hard midnight confession, placed his upon of such of one effect fears the will participa- him near but denied crime entirely police’s power. Com- within the tion, police were discovered Washington, Haynes pare v. State prepared him or to to release either (1963). At no story, merely him to check out hold stage questioning told that he was Collins ever at 3:00 renewed their lawyer, or even lie detector tests. consult with A.M. two making any family, state- well with his before could have believed there they prisoner offers a end until he told the what Such advice no ment. early Finally, un- and a chance the outside world wanted to hear. while link guidance equivocal those than from other advice to seek confess; might required Esco- to alert however have served him to who want read, presence may ultimately reassure Collins as choice bedo weighs warning warning him, received of such a or absence 834

quite inadequate deterring by to that end. At best of he lawless conduct federal closing not incrimi- was twice told that need officers” and “of the doors of the himself, any he had nate in case federal each courts to use of un evidence after constitutionally obtained,” made oral confession and before U.S. at 371 began 486, tran- perceive it for a formal reiterate I 83 S.Ct. at 416. But scription. supposing that, having equated Commonwealth See Turner v. basis Pennsylvania, 62, 64, 69 S.Ct. of 338 U.S. verbal with real obtained in evidence 1352, (1949). L.Ed. 1810 violation of the Fourth with Amendment trials, respect to in federal see exclusion regard- concluding word is called A States, Silverman United 365 U.S. v. ing admitted, deliberate violations (1961), 81 S.Ct. 5 L.Ed.2d by police. 36-hour deten- law Ohio, Mapp Court that had decided v. on the uncorroborated and tion L.Ed.2d 1081 bounty charge conclusory private of a (1961), only years two would dis earlier gross was a hunter violation tinguish the sorts of two police swore Fourth Amendment. The respect necessity in for exclusion charge to a a warrant false obtain Rogers States, state trials. United See name, under a failed to Col- false take denied, (5 Cir.), 330 F.2d cert. magistrate lins re- as Texas 379 U.S. 85 S.Ct. warrants, quires after arrests without Wong (1964). It is also that true having magistrate inform and avoided Sun unlawful ar there been both an right Collins of his to counsel and search, rest and an unlawful whereas not to incriminate himself. Vern- only former. But here on’s Crim.Proc. arts. Ann.Texas Code unlikely that also would basis seem 215, 217, 245, (1948). re- The law for distinction. Fourth Amendment lating to detention arrest and does protects against improper seizure always bright lines, provide and minor person fully as unreasonable hardly errors breaking close, into Albrecht v. see operate avoided. But when the 273 U.S. disregard calculated substantial (1927); 71 L.Ed. 505 ex States expect applicable rules, they cannot (3 Cir.), Rabb, rel. Potts 141 F.2d 45 doubts as to undue benefit pressure truly case. close nothing L.Ed. my ground, es- Since language would war Court’s tablished as far back as Brown Amend rant a view that the Fourteenth Mississippi, ment less in one “absorbs” the Fourth (1936), requires 80 L.Ed.2d 682 us to re- respect other, than in the see Ker v. State judgment, prefer I not to at- verse California, tempt in re- resolution Collins’ claims compare (1963); Cohen 10 L.Ed.2d 726 gard Wong In Sun and Escobedo. (9 Norris, n. Cir. Judge persuasive view Chief Tuttle’s 1962). exegesis cases, desirable of these it seems pinpoint my of doubt. areas Judge Tuttle I thus follow Chief Wong Wong general proposition held that statements Sun violating prohibits in a fruit of a the introduction state were the seizure Sun differently criminal trial of a is the Fourth Amendment stood no violating tangible results, 484- of an Fourth than its result arrest Amendment, just Mapp true, prohibits the It is as the state 83 S.Ct. 407. through object reception emphasizes, was a federal of an obtained spoke trial Court “in terms an unconstitutional search.1 Where and that the deciding, appeal assume, terminated bad been 1. I here certiorari, pend appeal still the denial direct since Collins’ Wong Sun, (1962). decided, Mapp Cf. 8 L.Ed.2d 283 when Walker, corollary Mapp, would Linkletter which was although applicable decided it was problems saying, become different is the less “At first blush ner —the [Wong appear the unconsti relation between clear causal Sun] passing require time tutional act and “fruit.” When the of sufficient violating police, Fourth the arrest and the search between arrange Amendment, contraband or over to clear seize the defendant disclosing Rogers States, supra, the loca United hear a conversation mind.” Traub, goods, be tion connection In of stolen the F.2d at 541-542. State (1962), intrusion and va tween the unconstitutional 187 A.2d 150 Conn. booty trial is so automatic further consid the offered “for at and remanded cated readily Wong light that the latter of inevitable eration in Sun the “fruit” of unconstitution seen as the object improperly Supreme al But when the (1963), act. the Connecticut alleged person admitting the “fruit” seized to its decision Court adhered by him, ais there intervenes confession, 196 A.2d 151 Conn. speak. to the individual’s own decision although no at (1963), Traub Wong problems In itself causal Sun warn torney had not been and claimed temporal Toy’s were at extremes. silent to remain was entitled that he statement, required which the Court to anything used could be said along be excluded the narcotics to with 183-187, him, at 150 Conn. led, directly it came after “[s]ix Supreme 237-238; Court and the at A.2d or door and seven officers had broken the certiorari, denied Toy’s into followed on heels bedroom (1964). also 1637, 12 L.Ed.2d 503 sleeping” his child wife and were State, 191 A.2d 231 Md. Prescoe v. immediately had been almost “[h]e Jackson, N.J. (1963); handcuffed and arrested.” A.2d 1 By contrast, Wong S.Ct. at to judicial reluctance Doubtless statement, prop Sun’s to held have been logical Wong possible to its press erly despite arrest, his unlawful admitted inter- realization limits reflects was made “had after he been released deterrence maximum than other ests recognizance a lawful ar own Al- arrests are stake. unconstitutional raignment, voluntarily and had returned fail- or probable cause absence so the days several later to make the statement methods comply prescribed ure to *”* 491, 83 S.Ct. at 419. nothing generally has or arrest of search obtaining objective relation causal If maximum a “but-for” than more confession, and sometimes subsequent of arrests state officers in deterrence might said good be A deal violation of Fourth Amendment over- that. not even limiting considerations, principle based rode all other a narrow passage arrest, one test of what breaks the causal chain wantonness may in- appropriate every Judge would be Tuttle’s case. But in Chief Kyle, yet Compare States the few courts that had to face United timate. problem 1961). (2 On have shown Cir. reluctance F.2d 507 press Wong far, placing flagrantly violation view, unlawful Sun so stress depriving statement, require them upon police would Court’s “We need not might every hold that all is ‘fruit of the foreseeable benefit evidence poisonous simply of the same spur tree’ because further adventures illegal light certainly suppression all kind, have come but for the given including police.” acquired, confessions actions of the at 487- Thus, panel absence prior 83 S.Ct. at 417. another to release hand, lawyer. those errors this circuit shrunk from conclud- On the other possible Fourth judgment that a error inevitable when thinking being interpreted “on an arrest must re- Amendment evidence, quire disqualify exclusion a confession made some run” would margin wholly voluntary theory hours later in a man- added on the security 1965); Bonanno, is not States 180 F. and increased deterrence Deciding Supp. (S.D.N.Y.), price. what is on other rev’d worth added 1960); appraising grounds, (2 flagrant 285 F.2d 408 Cir. is no harder than Arrest, LaFave, probable that some 343-53 If I cause. were sure available, limiting should principle that resolution also issue such joining await a case where task Chief cannot less would be hesitant Wong Sun, Judge avoided. as to since Tuttle here as wanton conduct sharp has been There difference stand, I think could be. But as matters opinion, Russo see States ex rel. it undesirable an inferior - - Jersey, (3 v. New Cir. terminal, any, attempt predict what cited, highly 1965) and cases put on Court will question important whether Escobedo v. until it is seized of a case where Illinois, 478, State of 378 S.Ct. U.S. 84 task cannot be shirked. (1964), 12 L.Ed.2d be ex- 977 is to beyond tended leaving case, what Court character- phase the the Before this question” pre ized as “the critical in that I not should make clear that amI case, and, 378 U.S. if pared to hold the initial be encounter so, testing point how far. The is wheth- the and the eve tween Collins on holding, phrase illegal er ning January the the U.S. at 378 an to been have suspect 490-491, Although Investigator 84 S.Ct. at Special “the arrest. requested oppor- has Williams, leading and been answering denied an a rather tunity lawyer,” to consult with his question counsel, did char set or episode intended to limits on the such, decision acterize the as Detective merely description an Ray accurate testified that Col he didn’t arrest argument plausible facts. A lins, “agreed along can indeed go that Collins to and go be us,” assembled view Escobedo and that Williams will not limited to simply Way be factual situations Captain told Collins “that presented. decision, like that there cott wanted to is no see him.” There said, significance it is obliterates evidence that force was used or threaten beginning judicial proceedings ed, though as thought may it right counsel; triggering to comply. ifbe he did is enough Court considered it that Escobe- police, though lacking sue whether eyes do “had enough become the accused” in the justify to and in arrest police. proposition is carceration, The next may request or even de stage reached, that once that has it person suspected mand that a of serious pro- can make difference whether the accompany place crime them ato suitable sought spective defendant has counsel period of interview for a reasonable not; this, placed on the investigation to reliance important is so and the right be furnish- proper “the see, doubtful, g., answer so e. request.” depend does not counsel on a Indiana, Watts v. State of 338 U.S. Carnley Cochran, 61-62, S.Ct. 93 L.Ed. (concurring (1949) dissenting opin If 8 L.Ed.2d Jackson); ion of Mr. Justice fur- Culombe has not taken state the initiative and Connecticut, supra, argu- stage, nished counsel (opinion runs, of Mr. Justice it ment must at least advise Frankfurter); way United States rel. Cor such clear- ex accused in that he will Vallee, (2 ly right bo v. La 270 F.2d 518 Cir. that he to con- understand 1959), denied, attorney responding cert. sult with (1960); interrogation 4 L.Ed.2d 382 not an- that he need Vita, (2 freely States F.2d For 528-530 swer at all unless chooses. 1961), only suspect Cir. makes a “considered choice,” Fay (1962); Noia, 7 L.Ed.2d Middleton, (2 States v. Cir. 9 L.Ed.2d hypothesi, on which a forego which, on tentative basis even ex aid to necessarily Appeals on a acts Court of does Sixth entitled then there my view, sort, when, question permit of this his statements to Amendment prevail depending against Finally, anoth- the relator entitled used him. ground. thought Compare v. Hol- an ex- Edwards to underlie er the rationale 1965). arguments man, (5 doctrine, Cir. panded Escobedo applying some force can advanced join For reason first stated I in re- But, retroactively. judgment. versal of the quotations present- chain of from cases ing problems, quite Judge (dis- HUTCHESON, different Circuit many limiting phrases presumably senting) : placed opinion for some the Escobedo firm dis- Of the clear and view purpose the characterizations —not denying judge writ trict holding already question and of the sought corpus in this case habeas language mentioned, stress- but further opin- him in his the reasons stated attempts of client the frustrated my am, ion,1 I with him. take stand attorney communicate, agree therefore, with the con- unable 481-482, 485, 488, trary majority, Donovan, N.Y.2d reliance wrong judge and that district 841, 843, 193 N.Y.S.2d judgment must be reversed. (1963), 486-487, N.E.2d 378 U.S. respectfully dissent. Carnley and 1758. Cases like Zerbst, Johnson v. (1938), concerned 82 L.Ed. trial, pit- to counsel at ting prosecu- layman a trained inno- risk that an a serious

tor creates go jail. sta- man will cent so far desirable tion confession —itself very voluntary presents dif- truly — America, UNITED STATES its his- problem ferent Appellee, tory practical considerations but arguments Strong mus- can be involved. HALL, Appellant. Dennis Richard hedging fur- tered for confessions No. Docket 29196. safeguards, must beware we ther “waiver,” counsel,” treating “right to Appeals Court United States concept a Platonic of law as other Second Circuit. considering reality the context Argued June 1965. reading expansive of Es- hand. Since July Decided 1965. proposed take would cobedo sometimes Denied Nov. 1965. Certiorari historic rather far from the the Court Amendment, ex- purpose Sixth See 86 S.Ct. 250. Alabama, plained v. State Powell 45, 60-65, 68-73, (1932), L.Ed. 158 Bute Illinois, 92 L.Ed. and federal invalidate numerous state retroactively applied, and convictions necessary might drastically in- affect the

vestigation crime, I not wish to es- do grave problems,

say of these resolution F.Supp. D.C., Beto, Director,

Case Details

Case Name: Clarence Collins v. George J. Beto, Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 21, 1965

Citation: 348 F.2d 823

Docket Number: 21739

Court Abbreviation: 5th Cir.