Dennis Rosa Collazo v. Wayne Estelle, Warden, California Mens Colony
898 F.2d 87
9th Cir.
1990
Check Treatment

*2 FARRIS, THOMPSON Before TROTT, Judges. Judge: FARRIS, Circuit denial appeals from the Dennis Collazo corpus. of habeas for a writ petition of He incriminating statements argues that custody he made while which they at because excluded trial have been coercion. police of We were affirm. 27, 1982, Collazo was ar- September On shooting with a fatal in connection rested at interrogation room taken to an and was police After Jose station. two the San police of his advised him officers Miranda, con- requested to police twice told The fer with counsel. things “might worse” be for Collazo that cooperate, and that he he him if might did police charged murder. The with interroga- promptly terminated then tion. Three with his cussions with the later, speaking hours after wife, initiated further dis- confessed to shooting. confes- Collazo’s his role into over his sion objection admitted evidence was He convicted trial. murder, burglary, conspiracy, felony years imprison- to 26 and was sentenced ment. Spring, Colorado (1987), 851, 857, 93 following statéd the Supreme Court determining suspect’s test for whether validly rights have waived: been Miranda right the in the relinquishment First voluntary sense must have been product of a free and it was the than intimi- choice deliberate dation, coercion, rather Second, deception. made must have the waiver been Farber, Rafael, Cal, D. San William for nature full both awareness petitioner-appellant. being and the conse- right abandoned to abandon it. quences the decision Gen., Atty. Kamp, de K. John Van Spring test has satisfied. Al- been Cal., and John H. White Steve the State police officers’ comments were though the Gen., and Martin S. Attys. Sugiyama, Asst. found, the state court improper, no doubt Attys, Bunney, Deputy Kaye and Aileen evidentiary conducting hearing, a full after Francisco, Cal., respondent- Gen., San of talks initiation that Collazo’s appellee. “product” with the review impropriety. own the earlier the record convinces Our us the state court was correct. independent duty We have record establishes no causal question of the voluntariness of link subject the between Collazo’s confession “plenary prior and the the defendant’s confession to fed conduct of police. Fenton, Miller v. eral review.” See AFFIRMED. 104, 115, 106S.Ct. 88 L.Ed.2d *3 U.S. (1985). had the 405 The Government bur TROTT, Judge, dissenting: proving that the defendant’s deci den I respectfully dissent. This case involves independently to confess was made sion unmitigated and glaring police misconduct carefully any police coercion. We have re designed to undercut the Miranda warn- the hold that the viewed we ings to which Collazo was entitled. In one has met that burden and has Government breath rights, police the told him he had certain confession shown that the defendant’s voluntary. was but the next—when Collazo indi- cated he wished to avail himself of those rights was told if he exercised —he history, prior a criminal Collazo had them, he might penalized be doing so. police experienced in the routine of post Here is the advice exchange paid He a informant of interrogation. as it was tape: recorded on approxi- lapse the DEA. There was a Can, talk, Collazo: I you know, talk, the first inter- mately three hours between talk to a lawyer? rogation session Collazo’s Destro: your This is last chance to talk conferred with his confession. Collazo us, to though. You understand that. Finally, at the time of in the interim. wife you get Once lawyer, gonna he’s say confession, stated that he was forget know, it. You don’t talk to the any promise acting pressure under police. might Then it be you. worse for “totality of the threat. Based on or Collazo: Pardon me. 573, circumstances,” Spring, 479 U.S. at Destro: might Then it be worse for 857, at we conclude that Collazo 107 S.Ct. you. voluntarily his fifth freely and waived Why? Collazo: rights. amendment Because, ah, Destro: you know, people there’s other would like thing, this and we brightline get everybody. rule of to If you Edwards v. Ari- zona, don’t about, 451 101 want to talk uh— U.S. S.Ct. 68 (1981), L.Ed.2d 378 has also been satisfied. Well, Rolen: lawyer, he’s asked for a requires accused, Edwards that “an ... we, why so guess don’t I we’ll leave our having expressed his desire to deal with right interview here. only counsel, police to further through subject is not If, ah, ah, Collazo: if gonna this be interrogation by the authorities you, you know, difficult for for me it until counsel has been made available to lot, you means a know. him, unless accused initiates himself you’re murder, Destro: If arrested for communication, exchanges further it does mean a lot. police.” conversations with the 484, at Id. departed, leaving then Collazo to added). (emphasis 101 S.Ct. at 1884 ponder whether he could afford to exercise Since we hold that Collazo initiated the rights. his constitutional Three hours la- subsequent talks free from the taint of the ter, and still in the interview room where improprieties, earlier Collazo’s confession left, he had been Collazo called back the does not run afoul of Edwards. police. He then request abandoned his lawyer, allegedly rights, a confessed. waived his agree Judge also Trott that the We policemen's to after he statements question The ultimate for us to resolve is silent, right had invoked his to remain and “whether, totality under the of the circum- interroga- before the terminated stances, challenged confession was ob- tion, “interrogation” constituted tained in a compatible manner with the Innis, 446 Rhode Island v. requirements the Constitution....” L.Ed.2d 297 “But S.Ct. question The same case that for Miller v. this frames inquiry. suspect’s It that is not also be established that nating response end must us, Fenton, 474 U.S. incrimi- (1985), 106 S.Ct. 88 L.Ed.2d 405 was the of words also mandates that this is a “matter for part police....” at or actions on 303, Id. independent federal determination.” at Id. added). (emphasis at 1691 106 S.Ct. at 451. The court Miller from the incriminating response an elicit the voluntari- argument rejected definition, Destro’s this suspect.” Under issue and a factual is confession of a ness request threatening response to Collazo’s fact shall be findings of court state purely and lawyer amounts talk to a in a federal habeas correct to be presumed interroga- and to interrogation, simply out that pointing proceeding, “[f]or corpus As I see itself. prohibited Miranda tion it, that it would think we reasons several were to Collazo statements long- Destro’s the court’s abandon inappropriate by major- conceded “improper,” as only question ultimate position that standing outright viola- they constituted ity, but merits admissibility of a confession as as well Edwards tion of Miranda ple- requiring legal inquiry as a treatment Arizona, 101 S.Ct. Id. at review.” nary federal police to (1981)(requiring the *4 by a sus- immediately the evocation respect “things going of view, threat if the my any way I fail to rights). his see pect of rights on his he relied for Collazo worse” did that Destro’s conduct it can be said that not amount for a request his in a futile to abandon him caused “practice that prohibited to a attempt testified he so lawyer, as likely reasonably know is the should noth- There is his confession. suppress to response from a incriminating to evoke change explains his that record ing in the Innis, 446 v. Rhode Island suspect_” explicit of the weight the mind, except of 301, at 1689. 100 U.S. S.Ct. Nothing. head. his over hanging threat colleagues, I my respect all to carry its due utterly to With failed prosecution The the collec- this case as inconsistent of demonstrat- see respect in this heavy burden ing a break Arizona, 384 teaching v. be- of Miranda tive connection the causal in 1602, 1624, 467, 16 436, S.Ct. waiver U.S. 86 the so-called the threat tween and (“... proper (1984) without the 694 Neither L.Ed.2d confession. in-custody inter- process of hours, safeguards his the a talk with of three passage wife, suspected or accused rogation persons inform- as an experience previous his compelling inherently contains denial of crime formalistic er, predictable nor his the undermine work to pressures which by threats convinces motivated he was that compel him resist and to the will individual’s to to subsequent waiver was his me that not do flagrant speak where he would otherwise than other anything C., 442 U.S. Michael obviously freely.”), didn’t Fare v. so Collazo police misconduct. 2572, 2560, 61 L.Ed.2d if he 99 for him S.Ct. go things to worse want talked to the (1979)(“First relinquishment of right to the on his 197 relied lawyer and a voluntary in the police— right the must have been to silent, he talked so remain making product of a free that it was the sense whatsoever no business who had representations intimidation, than choice rather out- deliberate the eventual regarding coercion, v. United States deception.”), first or without legal proceedings come of Cir.1981) (con (9th irony that 658 F.2d 1332 Tingle, is by talking prosecutor. to a inducing a confes demning process the the made in threat the inducement negative conse describing by him to sion get talk to police to in cooperate with refusing to giving quences police and talking to the By false. 479 Spring, v. lawyer vestigators), and Colorado with a right to consult up both 857, 573, 107 851, 564, (1987) 93 L.Ed.2d silent, only did S.Ct. U.S. remain right to and his Collazo, ‘totality if (“only as 954 circumstances go better things interroga surrounding the would, talked they but he police intimated ... an uncoerced choice de- reveal a court ... of first tion’ may right into conviction himself properly conclude of 26 years and sentence gree murder waived.”); I been worse? Miranda have much it been could have How life. have that it could even my doubts have quoted dia- me that strikes It also pre-Miranda review survived Haynes Destro and Officer logue between 513, Washington, 373 U.S. v. Innis, 446 v. Island of Rhode runs afoul (1963) 1336, 1343, 10 L.Ed.2d 513 83 S.Ct. through by police (“[A] obtained confession points (1980) out which L.Ed.2d pro due is violative of the use of threats under Miranda ‘interrogation’ “the term in case is question each .... cess ‘[T]he but questioning, only express refers not over will was the defendant’s whether borne part of on the actions any words also the ”). time he confessed.’ at the normally at- (other those than law since 1966. has been custody) Miranda to arrest tendant enforce- number of likely overwhelming law reasonably to know are police country faithful- in our abide ment officers America, UNITED STATES though even it some- requirements its ly times frustrates job. Periodically, their Plaintiff-Appellee, enforcement, as well persons law some v. scholars, call legal aban- as certain Supreme Court of Mi- by the donment Miguel BORRAYO, N. randa’s, But, long as as it is requirements. Defendant-Appellant. land, respected. it must be the law case; fact, honored in this It was not No. 88-5354. Moreover, disobeyed. un- egregiously can it be said that der no circumstances United States Court Appeals, admitting Collazo’s confession this error Ninth Circuit. Chapman was harmless under evidence California, v. Argued Aug. 1989. grates against This case one of the en- jurisprudential Sept. Decided 1989. during history observations of our As Amended Feb. Brandéis’ timeless dissent- —Justice States, ing remarks in Olmstead United *5 (1928): L.Ed. 944 Decency, liberty security, and alike de- government officials shall mand that subjected to the same rules of conduct In that are commands to the citizen. laws, government of existence of the government imperilled if will be it fails scrupulously. observe laws Our government potent, omnipres- is the ill, good ent teacher. For it teach- people by example. es the whole its contagious. government Crime is If the law-breaker, becomes a tempt it breeds con- law; every man it invites himself; become a unto it law invites anarchy. view, my petition grant- should be corpus

ed and the issue. of habeas writ GOODWIN, Judge, Before Chief

BROWNING, WALLACE, HUG, TANG,

SCHROEDER, FLETCHER, FARRIS,

PREGERSON, ALARCON, POOLE,

NELSON, CANBY,NORRIS,

REINHARDT, BEEZER, HALL, KOZINSKI,

WIGGINS, BRUNETTI, THOMPSON,

NOONAN, O’SCANNLAIN,

LEAVY, TROTT, FERNANDEZ, and

RYMER, Judges. Circuit Upon majority the vote of a of nonre- court, regular judges cused active of this

is ordered that this case be reheard pursuant en banc court 35-3. Rule