*1 Court of United States FARRIS, Before THOMPSON and Judges. Circuit Argued and Submitted June FARRIS, Judge: Sept. appeals
Dennis Collazo from the denial corpus. writ habeas argues incriminating He which he in custody made while have been excluded at trial because were the coercion. We affirm. September
On Collazo was ar- rested in connection shooting with a fatal taken interrogation to an room at the San Jose station. After two officers advised him of his Miranda, requested to con- fer with counsel. twice told things “might Collazo that be worse” for him if he cooperate, did not and that he charged murder. The promptly later, tion. Three hours speaking with his Collazo initiated further dis- cussions with the and confessed to shooting. his role Collazo’s confes- sion was admitted into evidence over his objection at trial. He was convicted of felony burglary, conspiracy, and was sentenced imprison- to 26 ment. Colorado v. following Court stated the
test determining suspect’s for whether a validly have been waived: First
must
voluntary
in the sense
that it was the
a free
Farber,
Rafael, Cal.,
William D.
San
deliberate choice rather
than intimi-
petitioner-appellant.
dation, coercion,
Second,
deception.
Gen.,
Kamp, Atty.
John K.
Van de
the waiver must have been made with a
Cal.,
the State of
Steve White and John H.
full awareness both of the nature of the
*2
them, might
penalized
and the conse-
he
be
right being
doing
abandoned
so.
decision to abandon it.
post
of the
Here is the
advice of
exchange
tape:
as it
was recorded
Al-
Spring
test has been satisfied.
Can,
talk,
know, talk,
you
Collazo:
I
comments were
police
officers’
found,
lawyer?
talk to a
improper,
the state
no doubt
conducting
evidentiary hearing,
a full
your
Destro: This is
last chance to talk
subsequent initiation
talks
that Collazo’s
us, though.
You understand that.
police
“product”
was not the
with the
you get
lawyer,
gonna say
Once
a
he’s
impropriety.
review of
the earlier
Our own
forget
know,
it. You
don’t talk to the
the record convinces us that the state court
police.
might
Then it
you.
be worse for
was correct.
Pardon
Collazo:
me.
history,
prior
had a
criminal
and
Destro: Then it
be worse for
experienced
in the routine of
was
you.
paid
interrogation. He was a
informant
Why?
Collazo:
lapse
approxi-
DEA. There was a
Because, ah,
know,
Destro:
you
the first inter-
mately three hours between
people
there’s other
thing,
this
and we
rogation session and Collazo’s
would like to
everybody.
you
If
conferred with his
confession. Collazo
about,
don’t want to talk
uh—
Finally,
the time of
wife in the interim.
at
Well,
lawyer,
Rolen:
he’s asked for a
confession,
Collazo stated that
we,
why
guess
don’t
I
we’ll
leave
acting
pressure
any promise
under
interview
here.
“totality
or threat. Based on
If, ah,
ah,
gonna
Collazo:
if
circumstances,”
at
Spring, 479 U.S.
know,
you, you
difficult for
for me it
857, we conclude that Collazo
107 S.Ct. at
lot, you
means a
know.
freely
voluntarily
his fifth
and
waived
you’re
rights.
Destro:
arrested for
amendment
a lot.
it does mean
Judge
agree
with
Trott that
We
departed, leaving
Collazoto
policemen’s
to Collazo after he
ponder
he could afford to exercise
and
had invoked his
rights.
his constitutional
Three hours la-
before the
tion,
ter,
“interrogation”
and still in the interview room where
constituted
under
left,
100 he had
Collazo called back the
been
police.
The evidence in the record establishes compatible in a manner tained link Collazo’s confession causal between requirements of the Constitution....” police. prior conduct of the question that frames this The same case us, Fenton,
AFFIRMED. for Miller v. Judge, dissenting: is a “matter for also mandates that this independent federal determination.” Id. at respectfully dissent. This case involves at 451. The court Miller unmitigated glaring misconduct rejected argument that the voluntari- warn- designed to undercut the Miranda is a factual issue and ness of a confession was entitled. ings to which Collazo findings of fact shall be that state court him he had certain told breath correct in a federal habeas presumed to be indi- rights, in the next—when Collazo pointing out that corpus proceeding, those “[f]or himself of cated he wished to avail think that it would be reasons we if he exercised several was told that —he 1X70
inappropriate to
long-
abandon the court’s
tendant
to arrest
custody)
standing position
that the ultimate
should know are reasonably likely to
admissibility
elicit an incriminating response
of a confession merits
from the
suspect.”
definition,
treatment as a
Under this
inquiry requiring ple-
Destro’s
*3
threatening response
nary
to
request
federal
Collazo’s
review.” Id.
106 S.Ct.
lawyer
to talk to a
amounts purely
at 452.
simply
interrogation,
to
and to
my
“things
the threat of
going
prohibited by
tion
Miranda itself.
IAs see
worse” for Collazo if he
relied on his
it, Destro’s statements to Collazo were not
him to
caused
abandon his
only “improper,”
by major-
as conceded
the
lawyer, as he so testified in
attempt
a futile
ity,
but
outright
constituted an
viola-
to suppress his confession. There is noth-
tion of Miranda as well as Edwards v.
ing
explains
in
change
the record that
Arizona,
451 U.S.
101 S.Ct.
68
mind, except
weight
of
the
explicit
the
of
(1981)
L.Ed.2d
(requiring
378
the
to
hanging
threat
over his
Nothing.
head.
respect immediately the
by
evocation
a sus-
prosecution
utterly
carry
failed
to
its pect
rights).
I fail
way
to see any
heavy
respect
in
burden
of demonstrat-
that it can be said that Destro’s conduct did
ing a
break
the causal connection be- not
prohibited “practice
amount to a
the threat and the
tween
so-called waiver
the
reasonably likely
should know is
subsequent
confession. Neither the
to evoke an incriminating response from a
hours,
passage of three
a talk with his
suspect....”
Innis,
446
previous experience
as an inform-
U.S. at
use of threats is pro- violative of due cess .... in each case is ‘[T]he COMPANY, O’MALLEY LUMBER the defendant’s was over- will O’Malley Building d/b/a borne at ”). the time he confessed.’ Materials, Appellant, Miranda has been the law since 1966. The overwhelming number of law enforce- ment country officers abide faithful- LOCKARD, John W. J.W.L. d/b/a ly by requirements even it some- Construction, Appellee. *4 times frustrates job. their Periodically, persons some enforcement, in law as well as scholars, certain call for the aban- States Court of donment Court of Mi- requirements. But,
randa’s long as as it is land, law the respected. it must be Argued and Submitted March case; was not fact, honored in this it Sept. 5, egregiously Moreover, disobeyed. un- der no circumstances can it said that
this error of admitting Collazo’s confession
in evidence Chapman was harmless under
v. California,
This case grates against the en-
during jurisprudential observations of our
history Brandéis’ timeless dissent- —Justice ing remarks States, in Olmstead v. United (1928):
L.Ed. 944
Decency, security, liberty alike de-
mand government officials shall be
subjected same rules of conduct
that are commands to the citizen. In a
government laws, existence of the
government imperilled will be if it fails
to observe the laws scrupulously. Our
government potent, is the omnipres-
ent ill, good teacher. For or for it teach-
es the people by whole example.
Crime is contagious. government law-breaker,
becomes a it breeds con- law;
tempt for it invites every man to himself;
become a law unto it invites
anarchy.
In my grant- should be
ed and the corpus writ of habeas
issue.