Harold C. Medeiros v. Edwin Shimoda, Administrator, Oahu Community Correctional Center Corinne K.A. Watanabe, Attorney General of the State of Hawaii

POOLE, Before NORRIS BRUNETTI, Judges. Circuit BRUNETTI, Judge: Circuit presents This an appeal issue of first impression in- in this circuit: whether an custody, unsolicited not made any police interrogation, must suppressed because followed an earli- er made in violation of Arizona, Miranda v. (1966).1 any presence attorney, questioning, person

1. "Prior to must be of an either retained or silent, right may appointed. warned that he has a The defendant remain waive effectua- may rights, provided statement he does make be used as made of these waiver is him, right knowingly, voluntarily, intelligently.” evidence that he has a Mi- History Factual and Procedural responded by Officer Silva telling Medeiros give any “You shouldn’t statements at this 13, 1979, Thompson On June Myers was time,” stopped reading short of Medei- range shot at gun close with a flare outside ros the warnings. heeding Not Honolulu, the Wonder Bar Hawaii. suggestion, Silva’s Medeiros then ex- Shortly thereafter, Officer stopped Trela claimed: appellant, Medeiros, Harold C. who was driving an automobile which matched the He hit me and I shot him. He was description given by witnesses to the shoot- selling her ass. Officer again Silva told ing. eyes Medeiros’ glassy were red and say Medeiros nothing further, but did and he had an odor of alcohol about him. not read Medeiros the warnings. Medeiros asked Officer Trela why he had Immediately thereafter, Medeiros contin- stopped. been replied Officer Trela ued: “there had shooting been a at the Wonder I killed that-1 nigger. killed that Bar and that automobile [Medeiros’] Good for him. I hope I he’s dead. shot matched description of one identified as him in fucking They head. beat me leaving the scene.” Officer Trela then up and kick me. Good for him I asked coming Medeiros where he was hope dies, that black bastard that black from, him of his Mi- advising without first son-of-a-bitch. randa rights. replied Medeiros that he Medeiros made approxi- these statements had come from the Wonder Bar and then mately 30 minutes after he had made the spontaneously incriminated himself with re- first incriminating statement to Officer spect (The shooting. to the “first state- Trela. ment”).2 On the following day, Chung Officer ad-

Medeiros was arrested and taken to the vised Medeiros of his rights. Af- being “booked,” station. After Offi- waiving ter rights, his requested Medeiros Miyashiro cers Silva and were instructed to provide officer him with prescrip- his take Medeiros to the Pawaa Annex for pain medication for his back condition. medical treatment of a laceration over Me- refused, After the officer Medeiros made a eye. deiros’ left Officer Silva testified that inculpatory (The third statement. “third eyes glassy, were red and statement”). loud, voice was unsteady and he was on his parties feet. The stipulated that Medeiros The state judge granted court trial Me- had a blood approxi- alcohol level of 0.19 suppress deiros’ motion to the first state- mately one hour after his arrest. product ment as the of an unwarned custo- during treatment, Prior to and and with- interrogation, dial which violated Miranda. any prompting officer, out from either Me- judge granted The trial also Medeiros’ mo- deiros made several more inculpatory state- suppress tion to the third statement be- officers, ments to collectively these re- cause the failure of the Me- ferred to as the “second statement.” Me- pain medication, deiros his request- once he deiros exclaimed: it, ed rendered his third statement involun- However,

He went hit gun tary. me and the went I judge off. the trial denied Me- killed him. you Good for him. How suppress like deiros’ motion to the second state- my year he take daughter.3 old ment Miyashiro to Officers Silva and Arizona, randa v. judge 86 S.Ct. at ros’ confession because the ruled that the entire confession was obtained in violation of Miranda and therefore inadmissible in the According prosecutor, Medeiros de- state’s case in chief. popolo guy clared "the went hit me. He was selling my, friend’s sister. I went blow 'em. I reporter’s transcript 3. The indicates Medeiros [expletive admitted I shot that ... I deleted] Myers prostituting believed was Medeiros' 15 popolo.” shot counsel, According to Medeiros’ year daughter, old whereas the district court ing popo- Medeiros stated “I shot the f Myers indicates that lo, Medeiros believed away.” I judge blew him The trial did not prostituting year Medeiros’ 15 old sister. seek to determine wording the exact of Medei- denied Medeiros’ Ultimately, grounds, the district court the Pawaa Annex. corpus. Me- manslaughter petition convicted a bench a writ of habeas twenty years trial and sentenced to incar- timely appealed. deiros ceration. Review Standard II. appeal to

On the Intermediate Court Hawaii, Appeals for Medeiros’ conviction decision to We review district court’s Medeiros, State was affirmed. Haw. corpus petition de novo. deny a habeas App. 665 P.2d Ducharme, F.2d Weygandt appellate rejected Medei- The state court (9th Cir.1985). court factual State argument that his second statement ros’ presumption of conclusions are entitled to a involuntary either or the “fruit of the was 2254(d). under correctness 28 U.S.C. § tree” poisonous of the inadmissible However, the state court's conclusion re- (the to officer Trela first garding Medeiros’ second confes- statement). that the The court concluded conclusion; voluntary legal sion was is a spontaneous, second statement was volun- therefore, presump- it is not to a entitled tary, unsolicited, product the and neither independent tion merits of correctness and exploiting the nor first statement the fruit Miller, de consideration. novo poisonous tree. 110-12, 449-51; States United 106 S.Ct. Thereafter, petition filed a for Medeiros v. 970, (9th Cir.1987). Wolf, 813 F.2d 974-75 corpus a writ habeas the United the District District of States III. The First Statement This ar- petition Hawaii. raised the same The district concluded the court that guments appellate that state had the court second statement was not the result of the rejected. independent made an court prior inadmissible confession. Because the determination of the voluntariness of the the acknowledged district court that first Fenton, v. confession, Miller second voluntary, was the district court statement 104, 445, 449-51, 110-12, 106 S.Ct. appears presumed have that the to first (1985), L.Ed.2d 405 and concluded that statement was because it was inadmissible “purged pri- second statement was un-Mirandized custodial an product of taint,” Wong v. mary Sun United under interrogation. The district court’s conclu States, 487-88, 407, 471, 371 U.S. subjected sion Medeiros to that was custo (1963), 9 L.Ed.2d 441 Officers because essentially dial a factual Miyashiro Silva and “took no action re- Wauneka, determination, v. United States motely designed encourage [Medeiros] Cir.1985) (9th (citing F.2d speak Additionally, the Annex.” Crisco, United States F.2d rejected argument district court denied, Cir.), cert. (9th 466 U.S. having coercion (1984) (cita L.Ed.2d 832 the first let the cat out of made statement omitted)), clearly under the reviewed and forced him to make the second United States v. standard. erroneous Oregon Relying statement. on (9th Cir.), McConney, 728 F.2d 1195 cert. denied, (1985), the district court found Trela Officer told Me that Medeiros’ statement “vol- description deiros that his vehicle fit the unteered” rather than the result of the leaving one witnesses seen scene of interrogation, previous unwarned and thus shooting and then him asked where he irreparably was not tainted the inadmis- had from. conclude that come We while Finally, apart sible first statement. debate, is room for there district potential impact having made conclusion “in court’s first the district court concluded custody” clearly erroneous because the second statement ren- was not person “a reasonable innocent such cir involuntary dered of any because claimed intoxication, would capacity due cumstances conclude ... he or diminished United drugs, she not be free to leave.” laceration. these would On Booth, (9th rounding admissibility of the second States v. 669 F.2d Cir.1981). made it not clear- statement is whether Medeiros vol- Similarly, because erroneous, untarily. Considering there was no ly uphold the district court’s we interrogation and that Medeiros’ intoxi- subjected conclusion that Medeiros was “interrogation” cation was insufficient to overcome his free because the should (see have and actions will and rational intellect Section III. known that their words above), “reasonably likely were elicit an incrimi- discussion source of coer- Rhode nating suspect.” have made this response from the cion which could Innis, Island v. involuntary psychological impact is the (1980) (footnotes let “the cat out of the with the omitted). first statement. United States v. We review the court’s deter district 1394, 91 L.Ed. 1654

mination that the first statement was vol (1947), recognized: untarily standard, made under the de novo an accused has once let the cat given voluntarily. and also find that it was [A]fter “ bag by confessing, out no matter A if confession is it is ‘the inducement, what the product is never there- of a rational intellect and a free prac- after free of the will’ ... a confession is [or not] disadvantages having tical of product confessed. physical psy of intimidation or get can bag. He never the cat back in the chological pressure drug- a [or] [alcohol-] Sain, good. The secret is out for In such a induced statement.” Townsend v. sense, 293, 307, may always a later confession 745, 754, U.S. 83 S.Ct. upon looked But as fruit of the first. Blackburn v. (quoting L.Ed.2d 770 Alabama, gone this Court has never so as to 80 S.Ct. far making hold that a under (I960)); Gladden v. Unsworth, use, preclude circumstances which its (9th 396 F.2d 380-81 Cir. perpetually disables the 1968). Connelly, See also Colorado confessor from making a usable one 157, 164, 107 those condi- U.S. after removed, tions have been (1986) (the mental condition de added). key fendant determining is the factor in

voluntariness). The district court exam applied Bayer’s Court eat surrounding ined the circumstances Medei El- bag analysis out of the ros’ first statement and concluded that al stad, suspect made his first incrimina- intoxicated, though he was he was not inca ting voluntarily, statement but without pacitated. He was able to drive an automo being given requisite first Miranda bile, obey the officers’ orders to and warnings. later, One hour he was advised during stop cooperate the initial and to of and waived his Miranda rights and exe- conversing with them. Based on these cuted a written confession. The held findings, surrounding we conclude that the suspect responded that “a who has once circumstances, including Medeiros’ intoxi questioning unwarned uncoercive is not cation, were insufficient to overcome his thereby waiving rights disabled from free will and cause his first statement to be confessing after he has been product anything other than a ra warnings.” Miranda requisite tional mind. 105 S.Ct. at 1298. While we which Elstad recognize upon that the facts IV. The Second Statement is differ based from the facts of this Although police Medeiros was in Elstad we are convinced that the decision custody grounded when he made the second state on the same fundamental con- Annex, principles ment at the Pawaa clear stitutional that control this case. Therefore, ly interrogating him at that time. Elstad guidance were we look to Therefore, because Miranda warnings determining the voluntariness of Medei- necessary, key were not issue sur- ros’ second confession. inadmissible first made the recognized “[fjailure to that a at been removed. warnings creates a have

administer Although the Court at 1398. 67 S.Ct. compulsion” “[c]onse- that a fact in indicated that that are oth quently, “[t]he unwarned statements being in- speak after meaning suspect chooses voluntary within the erwise rights” “highly probative” formed of his Amendment nevertheless be ex Fifth must voluntariness, Elstad, at Miranda.” cluded from evidence under stopped short at the Court 1292. 105 S.Ct. However, to ex make a volun- Elstad court holding went on that a can " previously judicially im sweeping tary amine ‘how after admission, consequences’ to admin of a failure posed made a but unwarned be,” El ister of his only after being should first informed stad, at 1292 Quite contrary, rights. Tucker, (quoting Michigan establishing rigid stated “[f]ar 41 L.Ed.2d or a rule, [e.g., requiring passage of time (1974)), and concluded: events], to avoid we direct courts break one;” extension of Mi- an It unwarranted of vol- the fact finder's determination randa simple to hold failure to must turn on an evaluation untariness unaccompanied warnings, administer en- surrounding and the circumstances

by any actual or other circum- coercion tire course conduct. the sus- stances calculated to undermine will, ability to free pect’s exercise his so evaluating surrounding circum- After investigatory process taints the police con- and the entire course of stances subsequent voluntary and informed waiv- case, that Medei- duct in this we conclude indeterminate er is ineffective for some voluntarily. ros made second statement admissibility any period.... [T]he of his first had made The circumstances which subsequent turn in statement should interro- statement inadmissible —custodial solely on whether these circumstances of gation having first been advised without knowingly voluntarily made. it is at his rights longer existed —no Elstad, he made statement. 470 U.S. at the time his second at 105 S.Ct. added). custody Although Medeiros in at the (emphasis recog- was While Annex, having spontaneously cat out of the Pawaa Medeiros nized let the statement, incriminating lingering psy- a made his second may create subtle form of any prompting questioning chological compulsion, or the Court concluded without is no present. point did either presuming that “there the officers At no warrant Miyashiro interrogate suspect’s Silva or ever coercive effect where the initial Officer statement, Quite contrary, the offi- inculpatory though technically Medeiros. Miranda, say voluntary.” repeatedly not to in cers told Medeiros violation was Elstad, Additionally, these anything further.5 105 S.Ct. added) omitted).4 initially (footnote who In- were not same officers in- stead, Medeiros his first any stopped and heard voluntariness depends criminating These officers did upon an evaluation of statement. statement in- previously had police the “entire course of conduct” and not know himself, Elstad, circumstances,” es- “surrounding merely served as criminated corts, investigation including had no role in the S.Ct. suspect. any interrogation in the conditions consideration question.” contrary, stressed unwarned but noncoercive 4. To the the Court at 1294. is a vast difference between direct "[t]here consequences flowing from coercion of con- testified, by physical just to Officer Silva "I didn’t want fession violence or other deliberate case, suspect’s up just will I told him don’t means calculated to break the screw so consequences never asked him a uncertain of disclosure me statements.... I question.” 'guilty freely to an secret’ Therefore, ily, even we that his second there could not have been conclude statement attempt by exploit a covert is admissible. to obtain

first statement another incrimina- ting remark. Application V. Retroactive lapse Although the one-half hour time may question There be some wheth first and between Medeiros’ second incrimi applied er can be retroactively may long nating statements seem appeal. this The Intermediate enough any lingering psychologi to remove Appeals of Hawaii affirmed Medeiros’ con compulsion cal from con years viction in two before the Su fessed, lapse time sus between the Court decided preme Thus, this El pect’s incriminating two statements appeal presents question of whether stad was only one hour. like Elstad can be applied retroactively Elstad, the second statement made at was seeking case habeas federal review of a different location that cannot con state conviction that has become final.6 sidered “coercive.” Although Constitution prohib neither Furthermore, at 1296. while its nor Medeiros, compels application retroactive is true that like the decisions, v. new Linkletter constitutional custody remained Walker, 618, 629, incriminating the time made his first (1965), to the time he made general his second L.Ed.2d incriminating custody judicial alone is rule apply is to decisions retroac not sufficient demonstrate Stumes, tively. involuntar Solem Watson, States v. United iness. 1338, 1341, 598 (1984). L.Ed.2d Court considered decision, whether a new constitutional Bat Kentucky, son v. Finally, rationale underlying (1986), “applicable privilege Fifth Amendment self-in litigation pending on direct state or fed supports crimination our conclusion that Batson eral or not final when review his second Medeiros made statement volun Kentucky, decided.” Griffith tarily. import “The fundamental 314, 316, 107 708, 710, U.S. S.Ct. 93 L.Ed.2d privilege indi while an [Fifth Amendment] (1987). 649 The Court held that new “a custody vidual is in is not he is prosecu- rule for the of criminal conduct to talk allowed without applied retroactively tions is to be to all counsel, benefit of but cases, federal, pending state or on direct interrogated.” Mi can whether he final, exception review or not with no randa, 478, at 384 U.S. 86 1630 S.Ct. at for cases in which new rule constitutes added). See also Connelly, 479 past.” Griffith, a ‘clear break’ with the 164, 107 (“Absent police U.S. at S.Ct. at 520 328, 479 107 S.Ct. at 716. The confession, causally conduct related to the retroactivity of new constitutional decisions concluding simply there is no basis for corpus in federal habeas cases was not an deprived state actor has a criminal issue present- before the court and process (footnote due defendant of of law.” Griffith question “carefully open ed omitted)). a left until interrogated Medeiros was not squarely presented.” Griffith, 479 surrounding Annex U.S. the Pawaa and the circumstances, 329, (Powell, J., 107 716 as well as the S.Ct. at concur- entire course Aiken, Yates v. ring). See also of condi conduct indicate that U.S. 211, 534, 537, 215, tions which made the first inad S.Ct. Thus, (Griffith’s longer ap- present. analysis

missible were no retroactive plies pending ap- speak because Medeiros chose to to cases on voluntar- direct 6. In “final” handed our refers to cases "where Elstad decision was down. v. Linkletter rendered, judgment Walker, 5, 1731, conviction was avail- of n. exhausted, ability appeal 1734, and the for time n. 14 L.Ed.2d petition elapsed" certiorari had for before from” El- to rule law said be different presents this peal). squarely This case “ represented ‘clear a break stad or which question.7 ” Solem, 465 U.S. at 645- past.’ with the Stovall three The criteria delineated Desist (quoting at 1343 Denno, States, United (1967), our guide L.Ed.2d (1969)). “[T]he retroactivity question. Al- analysis of the Elstad is not clear rule announced Hardy, len v. precedents, past, prior break with Solem, (1986); preclude applica retroactive which would 104 S.Ct. at 1341-42. application of prin tion, is an “(a) purpose must examine to be We Waune ciples particular to a situation.” standards, (b) by the new the extent served ka, also Re F.2d at 1441.8 by authori- of the reliance law enforcement Proceedings, Ayres, Jury Grand (c) standards, old effect ties on the (D.R.I.1987) not F.Supp. 465 did {Elstad justice retro- on the administration of of a assessing the vol- change the standards application new active standards.” made untariness of statements Stovall, 87 S.Ct. at statements). incriminating involuntary, to the purpose to be served because Additionally, merely ap interpretation application is its decision law, plies is no preexisting there reason Bayer to a particular of Miranda set retroactively applying El- anticipate that illuminates, analysis facts. Elstad’s disrupt the adminis stad to this case will example, out way of the cat weigh factors justice. These two tration of applies as it which doctrine Elstad retroactively applying favor voluntary, un-Mirandized state follows El- Accordingly, this our reliance case. on However, “[cjomplete retroactive

ment. stad proper. most new appropriate effect where a designed principle is to en constitutional trials.” So Conclusion accuracy criminal VI.

hance lem, 104 S.Ct. at court’s denial of We affirm district interpretation contrib Elstad’s petition for cor- a writ habeas little, enhancing very anything, if utes pus. Although Medeiros’ second statement Rather, accuracy of criminal trials. previous voluntary but un- followed a analysis prophylactic acts as a Elstad’s admission, warned the second statement protects right rule which defendant’s and, therefore, voluntarily was made is ad- Accordingly, incriminate himself. into evidence. missible support applica does not factor retroactive AFFIRMED. tion of factor, Conversely, both the NORRIS, Judge, dissenting: Circuit by law reliance enforcement authorities on Oregon standards, v. factor, the third As I read 470 U.S. old and 1285, (1985), 222 disruptive of 84 L.Ed.2d effect on the administration 105 S.Ct. presumption rebuttable support application it justice, retroactive reaffirms confession, voluntary, if Law enforcement authorities that an initial even tending “have relied has a coercive effect to undermine justifiably could not on a retroactively applied of Elstad as case circuits El Wauneka's characterization 7. Other have corpus past, in habeas cases without discus stad not make break with which did a clear appli appropriateness of the of retroactive sion although made in the of a case on direct context Vose, (1st Bryant v. 785 cation. F.2d 364 review, applies all fact cases. The that Elstad Cir.), denied, cert. past with the and did not make clear break Israel, (1986); L.Ed.2d 570 Stawicki v. 778 91 F.2d 380 merely applied preexisting law is inherent in the Cir.1985), (7th denied, rt. ce Therefore, decision itself. this character- (1986); Martin 93 by procedural posture is unaffected ization (1985), modified, Wainwright, v. 770 F.2d 918 attempt subsequent apply cases which El- (11th denied, Cir.), F.2d 185 cert. 781 909, retroactively. stad (1986). S.Ct. L.Ed.2d fully pect confes- has been advised of and has the voluntariness of rights.” by Supreme articulated Court waived his Miranda sions as in The States v. U.S. at Court United (1947). when, case, Because 91 L.Ed. 1654 as in the an held instant arising of coerciveness actually initial confession was not coerced from Medeiros’ initial confession was process though in violation of due even any significant intervening rebutted Miranda, in violation of the tradi obtained events, respectfully I dissent. poisonous tional “fruit of the tree” doctrine States, Wong Sun United inquiry The voluntariness in this case and requires us to revisit the “cat out of the inapplicable. Elstad, progeny its bag” applied doctrine as to successive con 304-09, 105 1290-93. Rath light fessions in of Elstad. Elstad first er, admissibility any subsequent “the incriminated himself in in statement should turn these circum parents’ After at his home. solely knowingly stances on whether being rights read his Miranda an hour voluntarily made.” Id. station, gave later at the generally S.Ct. at 1293. See United signed a full confession. As Wauneka, 1434, 1439-40 States v. F.2d suppressed Elstad’s the state trial court (9th Cir.1985). ground first statement on the it was ob Miranda, rejected tained violation of Supreme The Court then considered the argument Elstad’s that the first Oregon Appeals’ El- Court decision that letting bag, the cat out of the under stad’s second confession was rendered in- mined the of his later confes voluntariness voluntary by lingering “a subtle form of impression sion because it created the compulsion, psychological impact appeal, his fate sealed. On suspect’s conviction that he has let the cat Oregon Appeals Court of held that the and, doing, out of the in so has sealed suppressed second confession must also be 311,105 his own fate.” because its voluntariness was “tainted” Supreme S.Ct. at 1294. The Court did not Citing Bayer, the first confession. question Oregon point court’s that an Appeals reasoned that the first Court psychologically co- initial confession has bag” confession “let the eat out of the confessions, impact on later ercive nor did that there was not a “sufficient break in repudiate Bayer progeny and its Court the stream of events between [the first] establishing the “cat out of the doc- statement and the written confession to Indeed, Bay- trine.1 endorsed insulate latter statement from ef original explanation phenome- er’s of this Oregon fect of what went before.” El non: stad, Or.App. 658 P.2d course, after an accused has once let [o]f bag by confessing, no the cat out inducement, he never granted certiorari to matter what the “decide an initial thereafter free of the failure of law practical disadvantages con- enforcement officers to administer [Mir more, warnings], get fessed. He can never the cat back anda without ‘taints’ good. In subsequent bag. admissions made after a sus- The secret is out 590, that, See, Illinois, simply e.g., con- Brown v. 605 n. confession is twice, 2254, 12, might think he has little 2262 n. fessed once Alabama, (1975) ("The by repetition.”); fact that Brown had made one to lose Beecher admissible, statement, n. believed him to be U.S. 36 n. ... curiam) (existence pressures (per bolstered the for him to the sec- ond, illegal vitally part or at least vitiated incentive on his earlier confession "is of course self-incrimination."); petitioner's later to avoid Darwin v. Con- relevant to the voluntariness of 350-51, LaFave, necticut, statements”); 4 W. Search and Seizure 1490-91, J., 11.4(c), (1987) ("the (1968) (Harlan, that the 20 L.Ed.2d con- at 404 realization § ("A significant curring dissenting) bag' plays principal a role in reason ‘cat is out of suspect speak"). why suspect may encouraging a make a second or third a Bayer presumption is rebuttable sense, always that the a later confession such a re- therefore The Court one. upon as a fruit may be looked rule that once offi- previous its affirmed first. suspect to let the cat out cials induce a 540-41, 67 (quoting Bayer, Id. at U.S. subsequent a bag, the voluntariness of 1398). S.Ct. at under- presumed to have been confession ambiguous acknowledge that some I significant unless some mined the first isolation, ap- read in comments in sufficiently attenuates intervening event continuing pear some doubt on the to cast impact of the psychologically coercive bag” doctrine. vitality of the “cat out of the guilt. initial admission to tell that is difficult The Court said “[i]t the coer presumption that suspect a certainty what motivates with un first confession effect of Elstad’s cive 314, 105 S.Ct. at id. speak,” 470 U.S. at of his second dermined the voluntariness deliberatively coer- and that “absent by the administra confession was rebutted obtaining improper tactics cive or and waiver of Miranda warnings prior the mere fact that a sus- initial ex to the second. admission does pect has made an unwarned warnings created an envi plained that the presumption compulsion.” not warrant a suspect free ronment in which “the [was] However, reading of Id. a close deciding volition to exercise his own state- opinion indicates that these Court’s make a statement whether or not to challenge the con- purport ments do not Elstad, authorities.” U.S. vitality tinuing Bayer’s of of appears It to me that S.Ct. at 1293. confession has a coercive that an initial warnings dispelled the Court believed the impact to undermine the volun- that tends psychologically coercive effect of Elstad’s Rather, later confessions. tariness of he could reason first confession because merely point statements make Court’s warnings cat ably infer from the that his Bayer’s presumption of that bag after irretrievably not out of the coercion is rebuttable. the traditional Miranda warn all. While Elstad articulated The Court expressly suspect that ings inform a do understanding by repeating qualifica- prior confession obtained in violation of tion in Court has never him,2 “[t]his they Miranda cannot be used making a con- gone so far as to hold that See, e.g., implicitly suggest this result. pre- under circumstances which fession Schmidt, F.2d United States use, perpetually disables a con- clude its denied, Cir.), cert. (9th making from a usable one fessor (1978) (“The 221, 58 L.Ed.2d 194 after Id. those conditions have been removed.” suspect] warnings received [the (quoting Bayer, 67 S.Ct. at carry implicit statement of this also see added)); also prior illegal confession would fact [that (“the at 1294 inadmissible].”). warnings Because the be has assumed that the coercive effect suspect’s implicitly suggest fate time, could, sealed, with has not been [initial] “[a] dissipated”). rejecting administration of Far to a holding “cat out of the doctrine and suspect who has ordinarily fact that the first statement was should suf “the unwarned statement preclud volun- completely made is irrelevant” to the fice to remove the conditions of the earlier statement.” El court inquiry, tariness as did the district ed admission stad, below, at 1296.3 simply clarified Order that, prac- ad- 3. The Court was careful to note while 2. The Court held that it would be "neither warnings rebuts the ministration of Miranda constitutionally necessary” to re- ticable nor presumption that a second confession was invol- interrogate seeking quire officers by guarantee untary, the it does not itself that previous in tell him that admissions obtained voluntary. While the "fact second confession is of Miranda would not be admissible violation speak being suspect in- that a chooses to after against him. 470 U.S. at 105 S.Ct. at 1296. is, course, highly proba- rights of his formed exchange supervisory the federal Coupled the fact that “the suant courts’ with 540-41, powers. Bayer, had with his father” be- U.S. at words [Elstad] Because confessions S.Ct. at 1398. the first confes- tween the first second sup- prompted Bayer confess at in were might have Elstad to sions both noncompliance pressed noncon- police station even had he not due with parents’ prophylactic (congression- let the cat out of the at his stitutional rules home, id., ally-mandated procedures Bayer ju- the Court concluded that in “[cer- tainly], dicially-fashioned in the causal con- rules in El- Miranda [Elstad’s] any psychological stad), disad- nection between both cases establish that the volun- by his vantage suspect’s created admission tariness of a second confession is [initial] one, cooperate presumptively by ultimate decision to and his undermined speculative entirely even the first one and attenuated at best.” Id. when was volun- extracted tary through 1295-96. and not coercive interrogation techniques. Moreover, in focus on administration of Elstad’s Bayer both and Elstad the warnings and Elstad’s conversa- the psychologically concluded that coercive intervening as tion with his father events dissipated effect of the first had confession the presumption sufficient to rebut that primarily before the second one because lingering Elstad’s first confession had a the suspect had been warned before my coercive effect reinforces conclusion any incriminating one that second state- repudiate Bayer’s did not “cat that Elstad against might ments used him.4 The be Rather, out of the doctrine. Bayer salient difference that in simply Court in Elstad found under the months, given confession was six as presumption psy- that the circumstances hour, opposed to one Far after the first. chological effectively was rebut- coercion rejecting Bayer’s analytical from frame- today suspect ted: “We hold that a who work, therefore, simply applied responded has once unwarned un- analysis same to a similar set of facts and questioning thereby eoercive is not disabled intervening reached the same conclusion— waiving rights confessing af- including events administration of Mi- requisite ter he has been Mi- (or functionally equivalent) randa warn- warnings.” randa U.S. at ings dissipate the cat’s coercive served added). Indeed, S.Ct. at 1298 effect. Bayer, rather than undermine Elstad fol- then, directly lows from it. In the first Bayer, It is clear Elstad reaffirms suppressed, presumption confession was not that an ini- Bayer’s because rebuttable actually tial, in coerced violation of due confession has a coercive process, tending because it was obtained effect to undermine the voluntari- violation of the rule of There- McNabb v. United confessions. ness States, fore, step in our inquiry 87 L.Ed. the next should be (1943),that has confessions obtained vio- to determine whether congressionally-prescribed presence lation of interro- been rebutted in case gation procedures suppressed pur- any significant intervening must events.5 voluntariness, (second tive” of court still "must ex- id. at 67 S.Ct. at 1391 also surrounding “given warning"). amine the circumstances and the after fair respect entire course of conduct with dispute evaluating The State of Hawaii does not the voluntariness of response to un- Medeiros' Officer Trela’s initial his statements.” bag. let warned the cat out of S.Ct. at 1298. Indeed, let more of the cat course, today's hag response. requirements did Of were out of the than Elstad's initial initially questioned at the time of decision. his involve- not in effect However, When about Bayer explained neighborhood burglary, the Court in Elstad re- ment in a interrogator simply expressly sponded "I This state- defendant’s "warned him that was there.” itself, ment, might his statement be used him” before does admit involvement contrast, asking repeat admitted the defendant to his earlier con- the crime. just fession. 67 S.Ct. at 1398. more than "he was there” at much could not cer comment therefore his Silva’s confession followed Medeiros’ second coer- psychologically the diminish serve to He never by just hour.

first one-half in the of the first confession cive effect company the outside immediate Bayer the as did same manner from his roadside arrest officers and Annex; heavily intoxicated Pawaa he was only con- during period; this entire his (1) that, because majority reasons The his various es- versations were with location, is not coercive The annex Pawaa of Hawaii has corts. Because the State (2) interrogated the not Medeiros was significant identify any to interven- failed annex, (3) told Medei- Officer Silva Pawaa ing during the one-half hour interval there, event give not a statement ros he should might dissipated the coercive “exploit” that have the did not the officers second,7 first con- Me- psychological impact of Medeiros’ the first to induce confession fession, that be charac- the Medeiros’ confession should deiros’ second agree. voluntary. I cannot the voluntari- as first confession undermined terized of his one has not been rebut- ness second that his argument Of course ted. involuntary would confession was second addi- point if he to strengthened be could informed, through Medeiros was not coercion, I fail to see tional sources of Miranda warn- proper administration ac- the absence how of additional coercive otherwise, his first ings or that confession effect of could have the the officers against him. might not be usable Officer dissipating the impact coercive of his during the of Me- commented middle Silva confession.8 deiros’ confession give any statements this “shouldn’t identity change particular in the However, R.T. in contrast time.” at 236. the confes- the officers and location of to the Miranda warnings in and the dissipate nothing did to sions likewise cau- equivalent Officer Silva’s first confes- effect of Medeiros’ coercive tionary fairly cannot be con- loca- change statement of officers and sion. aWhile determining ongoing suggesting strued as to Medeiros that to tion is relevant tech- any might not be usable effect of first confession coercive used,9 niques majority fails supra against previously him.6 See 828-830. Offi- Bar; suppress when a second confession Wonder he admitted he also shot by police question- patron. supra & n. 2. Hence the confession is elicited at 827 second ing clearly El- psychological first effect of the confession inconsistent with stronger arguably police attempted it was to elicit a second this case much than stad. If the greater administering as had even reason Miranda confession without nothing per- sup- warnings, to believe that he had haps leniency lose would be then confession gain by confessing again. pressed directly under with no need to "cat out of doctrine. If advert to the example, cursory Silva's 6. For Officer police attempted to elicit a second confes- any that Medeiros "shouldn’t statements warnings, administering sion after easily mean- this time” could ing simply be understood as presump- would be then the second confession tively felt Officer Silva it would be If, under Elstad. as the State admissible take a full confession at inconvenient bag" suggests, "cat out of the doctrine's understanding plausible Pawaa Annex. This applicability involving restricted situations as would not .lead Medei- Officer Silva's comments time, police pressure to confess a second perhaps his ros to believe that first longer any independent would no serve doctrine Moreover, could not be used him. clearly Given that function. time, his abili- Medeiros' intoxicated state at can still in Elstad that defendants in- indicated potential disadvantages ty clearly to assess doctrine, it to the Court must intend be voke applicable compromised. repeating his confession in situations when second confes- directly by police question- elicited sion is Miyashiro nor 7. Neither Officer Silva Officer ing. knew that Medeiros had confessed with- being shooting Wonder out warned to the Bar interroga- properly matter how a second 9.No in interrogation. to Officer Trela’s roadside custodial conducted, likely to continue tion is interroga- associating in his mind the identical with unconstitutional majority’s tors and location 8. The conclusion the “cat out physical bag” argument successfully tactics that were used can invoked counsel, change operated family consultation with and explain how this intervening there was no other event —Me- Bayer’s presumption that Medeiros’ rebut deiros’ second confession was not volun- answers to the initial under- tary. Accordingly, I would hold that his second con- mined the voluntariness of denying district court erred in Medeiros’s Bayer fession. Under both petition corpus. for writ of habeas even a initial confession tends to undermine the voluntariness of later con- swpra

fessions, see I fail to see change in identity

how a of officers and operates dispel suspect’s per-

location

ception that his fate has been In

sealed. Court did significant

not find it that Elstad’s second confession was at a different location JESSUP, Herbert Jack from first and with an additional offi- Petitioner-Appellee, present. cer mentioned administration of warnings family

Elstad’s conversation with a mem- UNITED STATES PAROLE COMMIS ber, here, present both not as events which SION; Scott, Warden, F.C.I., F. Saf dissipated ford, the coercive effect of Elstad’s Arizona, Respondents-Appellants. first confession. No. 88-2665. majority’s argument The essence of the Appeals, United States is that absent coercive conduct at the Ninth Circuit. carrying Pawaa annex or coercion over question- Officer Trela’s unwarned Argued and Submitted June ing, psychologically coercive effect of 13, 1989. Decided Nov. simply Medeiros’ first enough by itself to undermine the volun- tariness of his second confession. This ar-

gument renders the “cat out of the contrary

doctrine a hollow shell and is Bayer and and

teach that the coercive effect of the initial

confession is sufficient to require suppres-

sion of a later confession some absent

tangible intervening dissipates event that holding

that coercive effect. that Me- voluntary,

deiros’ second confession was majority turns a deaf ear to this teach-

ing.

I conclude that in the circumstances of

this case—the second confession followed hour,

the first a mere half Medeiros was

continually presence in the immediate officers, the second confession was neither

preceded by nor Therefore, to coerce his initial confession. on whether that coercion has carried over bear coerced, actually statement is "[w]hen into the 310, confession." change interrogations[ place ... ] change identity interrogators all

Case Details

Case Name: Harold C. Medeiros v. Edwin Shimoda, Administrator, Oahu Community Correctional Center Corinne K.A. Watanabe, Attorney General of the State of Hawaii

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 8, 1989

Citation: 889 F.2d 819

Docket Number: 18-35791

Court Abbreviation: 9th Cir.