Thе PEOPLE of the State of Colorado, Petitioner, v. Paul Alan BRIGGS, Respondent.
No. 83SC134.
Supreme Court of Colorado, En Banc.
Nov. 18, 1985.
709 P.2d 911
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Maureen Phelan, Asst. Atty. Gen., Denver, for petitioner.
Gerash & Robinson, P.C., Scott H. Robinson, Denver, for respondent.
NEIGHBORS, Justice.
We granted certiorari to review the court of appeals’ decision in People v. Briggs, 668 P.2d 961 (Colo. App. 1983). The court reversed the defendant‘s conviction and ordered a new trial, holding that certain testimonial and real evidence must be suppressed because it was derived from involuntary statements that were obtained from the defendant. The court ruled that a witness’ testimony compelled by the grant of immunity from prosecution is not a sufficient act of free will on the part of the witness to dissipate the taint of illegality for purposes of the attenuation doctrine.
I.
The defendant, Paul Briggs, was charged with first-degree murder1 by an information filed in the Douglas County District Court. Briggs was sentenced to life imprisonment after the jury found him guilty of the crime. His motion for a new trial was denied and he appealed to the court of appeals.
The following are the facts pertinent to the issues upon which we granted certiorari review. The victim, Harry Dewey, died from a gunshot wound to the head on or about November 22, 1979. Investigating officers determined that the murder weapon was likely to have been a rifle reported stolen during the burglary of a mountain cabin in which Dewey was suspected of having participated.2 The investigation into Dewey‘s death thus fоcused on his friends and associates, with a view toward discovering a possible connection between the burglary and Dewey‘s murder.
Briggs and Dewey had briefly lived together shortly before the homicide. During the investigation Briggs was questioned by detectives several times. On December 19 and 20, 1979, he was interviewed
Pursuing this lead, the police officers immediately confronted Martin with Briggs’ statements and questioned him in an effort to gather further facts about the murder and/or the burglary. Martin informed the officers that he had sold a number of the stolen items to a friend in Indiana, Bill Neeley. On January 7, a detective went to Indiana and questioned Neeley, who related certain statements made to him by Martin to the effect that Martin and Briggs had planned to kill an individual in order to silence what Briggs viewed as that person‘s indiscreet bragging about his participation with Briggs in a burglary.
When confronted by the officers with this information on January 9, Martin requested and was granted “immunity”5 and disclosed that Briggs had discussed with him the contemplated murder of Dewey. Martin related that, on the evening of the murder, he had driven Dewey‘s roommate around Denver in order to prevent the roommate from interfering with Briggs’ plan to kill Dewey. When Martin and Briggs met afterward, the latter described to Martin the details of Dewey‘s murder.
Martin subsequently took two lie detector tests, acceptable performance on which was a condition to the grant of “immunity” approved by the district attоrney and offered to Martin by the investigating officers. Because Martin‘s statements could not be corroborated and both tests were interpreted by experts as indicating deceptive responses by Martin, he allowed himself to be outfitted with electronic sound recording equipment and agreed to engage Briggs in a conversation designed to elicit and surreptitiously record inculpatory statements. Martin successfully initiated such a conversation on January 14, and comments by Briggs were recorded in which he incriminated himself as the sole perpetrator of Dewey‘s murder.
On the date of the defendant‘s preliminary hearing, in accordance with the agreement reached between the authorities and Martin, a formal immunity order was entered by the trial court pursuant to section
Briggs requested the trial court to suppress the statements first made by him on January 4 and reaffirmed on January 5, on the ground that those statements were induced by promises of immunity. He also contended that the testimony of Martin and the tape-recorded conversation should be suppressed as “fruits” of his involuntary statements. The trial court suppressed
The suppression of Briggs’ statements was not appealed by the People. However, the Colorado Court of Appeals reversed the trial court‘s refusal to suppress Martin‘s testimony and the tape recording. The court held that evidence was directly and immediately derived from the defendant‘s illegally-obtained statements. In ordering Martin‘s statements to the police officers, his testimony, and the tape recording suppressed, the court of appeals further held that the grant of immunity to Martin precluded a finding that the exercise of his free will attenuated the taint of the initial illegality.
II.
The People contend that the court of appeals erred in holding that the suppressed evidence was not sufficiently attenuated from Briggs’ statements to allow its admission. We conclude that the trial court must first resolve the attenuation issue by the application of appropriate standards to the evidence.
A.
Both the fifth amendment to the
It is a longstanding principle in this state that article II, section 18 of the Colorado Constitution “was not intended to merely protect a party from being compelled to make confessions of guilt, but protects him from being compelled to furnish a single link in a chain of evidence by which his conviction of a criminal offense might be secured.” Tuttle v. People, 33 Colo. 243, 255, 79 P. 1035, 1039 (1905). Accord Hoffman v. United States, 341 U.S. 479 (1951); see also Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964).
In order to implement the privilege against self-incrimination, both this court and the Supreme Court have looked to fourth amendment analysis and its exclusionary rule for guidance in developing a principled basis to remedy violations of the self-incrimination privilege. It has long been established under the federal constitution that “knowledge gained by the Government‘s own wrong cannot be used by it....” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). Thus, the exclusionary rule mandates the suppression not only of evidence obtained by means abridging constitutional rights, but also the “fruits” of that evidence. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980).
Although “[t]he cases which mark the origin and development of the tainted fruit of the poisonous tree doctrine involved violations of the Fourth Amendment guarantee against unrеasonable searches and seizures,” United States v. Massey, 437 F.Supp. 843, 855 (M.D. Fla. 1977), the
It is established that third-party, live-witness testimony is a fruit under the poisonous tree doctrine, under both the fourth and fifth amendments. See United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978); United States v. Schaefer, 691 F.2d 639 (3d Cir. 1982); United States v. Hooton, 662 F.2d 628 (9th Cir. 1981); Hudson, 529 F.2d at 892. We hold that such evidence is likewise a fruit for purposes of
The People have not appealed the trial court‘s ruling that the statements of Briggs to the investigating detectives on January 4 and 5 were involuntary. Therefore, we are bound by that factual determination. We are thus presented only with the question of whether Martin‘s extra-judicial statements, testimony, and tape-recorded conversation with Briggs are inadmissible “fruits” of Briggs’ involuntary statements.8
B.
Martin revealed pertinent information about the burglary on January 4 or 5, after being directly confronted with Briggs’ statements that Martin had disposed of stolen property. That information led the officers to Indiana and Neeley. Armed with Neeley‘s statements, the detec-
Where the challenged evidence involves the testimony of a live witness, the most usual intervening event is the exercise of free will by that witness. In such cases, the Supreme Court has noted that the inquiry into attenuation is “appropriately concerned with the differences between live-witness testimony and inanimate evidence....” Ceccolini, 435 U.S. at 278-79. This difference centers around the power of volition possessed by a live witness:
[E]valuated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify. Ceccolini, 435 U.S. at 276-77.
It is, of course, true that “[w]itnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet,” and that “[w]itnesses can, and often do, come forward and offer evidence entirely of their own volition.” Id. at 276. These considerations lead us to agree with those courts eschewing the formulation of bright line rules in this context: “The unpredictability of the human will, which is necessarily involved in the use of a witness to prove essential elements of a crime forecloses the adoption of any rigid rules.” United States v. Marder, 474 F.2d 1192, 1196 (5th Cir. 1973).
A variety of considerations have been found pertinent to the inquiry into the possibility of attenuation between the constitutional violation and the evidence sought to be introduced at trial.9 In this
In formulating these relevant considerations, we reject that aspect of the balancing process in the attenuation analysis that weighs the flagrancy and purpose of the official misconduct against the deterrent effect of an exclusionary rule.10 Balancing these factors is not an appropriate consideration where introduction of the evidence would violate the defendant‘s right
Legal commentators have recognized this distinction between the fourth and fifth amendment exclusionary rules. One author has observed that, because “the primary purpose of the Fifth Amendment privilege is to avoid forcing an individual to contribute to the imposition of criminal penalties upon himself, not to protect his privacy,” Comment, Standards for Exclusion in Immunity Cases after Kastigar and Zicarelli, 82 Yale L.J. 171, 177 (1972), it is inadequate merely to apply the deterrence rationale of the fourth amendment exclusionary cases to the fifth amendment:
Thus, unlike the Fourth Amendment, the Fifth Amendment is directly concerned with the introduction of tainted еvidence at trial; it is in fact the introduction of such evidence that constitutes the primary violation of the Amendment. Even if the exclusion of evidence derived from a coerced confession is unlikely to have a deterrent effect on the police, its introduction will still represent an infringement on the individual‘s privilege against self-incrimination.
Id. at 178 (footnote omitted). Another writer states that “[t]he privilege against self-incrimination thus simply is the exclusion of such evidence: without this exclusion there is no privilege.” Zupancic, The Privilege Against Self-Incrimination, 1981 Ariz. St. L.J. 1, 19. “This point cannot be over-emphasized. The substantive sanctions against the police who violate the privilege ... simply are not adequate. This is not a question of deterring police from future misconduct.” Id. at 19 n. 5.
C.
We now consider, in light of the legal principles stated in parts A. and B. of this section, whether immunized testimony is the equivalent of compelled testimony and is insufficient to attenuate the taint of a constitutional violation.
It will often be the case that the degree of compulsion inhering in immunized testimony will be such as to negate the possibility that the witness hаs sufficiently exercised his free will to attenuate the taint of the initial illegality. It is generally true that:
Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant‘s will; the witness is told to talk or face the government‘s coercive sanctions, notably, a conviction for contempt. The information given in response to a grant of immunity may well be more reliable than information beaten from a helpless defendant, but it is no less compelled.
New Jersey v. Portash, 440 U.S. 450, 459, 99 S.Ct. 1292, 1297, 59 L.Ed.2d 501 (1979).
The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each сase. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test.
Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975).11
D.
Before turning to the inevitable discovery issues, we address the court of appeals’ characterization of the agreement between Martin and the investigating detectives as “immunity” because that matter is critical to the attenuation analysis, particularly the “free will” criterion. The police officers, the witness, and counsel for the parties have consistently applied the “immunity” label to that agreement. However, based on the undisputed testimony, we conclude that the more precise description of the People‘s agreement with Martin is a promise of immunity or promise not to prosecute.
Upon being confronted with the statements of Neeley, Martin requested “immunity.” After the detectives conferred with the district attorney, a bargain was struck. Martin agreed to tell the officers what he knew about the details of the homicide. In return, the officers promised Martin he would not be charged with the murder if he was not involved in a crime of violence and he passed a lie detector test. After failing two polygraph examinations, the detectives and Martin entered into further negotiations. A second agreement was reached whereby Martin would be granted immunity if he was able to obtain incriminating statements from Briggs. When such statements were obtained, a formal order of immunity was entered by the trial court.
In light of the principles set forth in this opinion, it is necessary to distinguish between Martin‘s in-court testimony, given pursuant to a formal judicial grant of immunity in the criminal proceedings, and his statements to the officers and the tape recording. There are principled reasons why we decline to equate a promise of immunity with a grant of immunity.12
There is a functional distinction between a promise and a grant of immunity in terms of the sanctions which the court may invoke against a witness who refuses to perform his end of the bargain. Violation of a formal immunity grant can result
Moreover, where the promise of immunity is made conditional, e.g., upon satisfactory performance on a polygraph examination, the promisee recognizes the possibility that he may not receive immunity. While the witness may continue to have an incentive to speak to the law enforcement authorities, he has not been induced to do so to the same extent as in the unconditional promise or formal grant of immunity situations. Cf. United States v. Houltin, 566 F.2d 1027 (5th Cir. 1978), cert. denied, 439 U.S. 826 (1978).13
It is thus important for trial courts to examine the degree of volition exercised by a witness or suspect by evaluating the context in which his statement was made. See Grano, Voluntariness, Free Will and the Law of Confessions, 65 Va. L. Rev. 859-60 (1979). Although the Suрreme Court has rarely used this approach in express terms, but see United States v. Jorn, 400 U.S. 470, 484 n. 11 (1971), it implicitly adheres to such a practice. Compare Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), and Corbitt v. New Jersey, 439 U.S. 212, 99 S.Ct. 492, 58 L.Ed.2d 466 (1978) (a guilty plea is voluntary even though induced by threat of substantially higher penalty or promise of benefit), with Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); accord Hutto v. Ross, 429 U.S. 28 (1976) (per curiam) (confession involuntary if obtained by any direct or implied promises, however slight).
In considering whether a witness has acted of his own free will in giving a statement, it is instructive to consider cases involving a coerced confession. Whether free will was exercised in such situations depends on the circumstances of the particular case. Brown v. Illinois, 422 U.S. 590 (1975). The analogy is useful where immunized testimony is at issue, because “compelled” utterances are present in both instances. In confession cases, however, the speaker‘s statement will be used against him, whereas in the immunity-attenuation context, it will be used against others. Since an individual will generally be more reluctant to incriminate himself than someone else, a greater degree of free
III.
The People claim that the prosecution raised the inevitable discovery question at the suppression hearing and that the case should be remanded to the trial court for factual findings on the issue. We reject both arguments.
A.
In People v. Lee, 630 P.2d 583, 591 (Colo. 1981), cert. denied, 454 U.S. 1162 (1982), we recognized the doctrine of inevitable discovery, in addition to a showing of independent source or attenuation, as a basis for the admission of evidence in circumstances where a constitutional violation has occurred. We stated: “As an alternative to a showing of independent source or sufficient attenuation the prosecution might be able to demonstrate, as a basis for admission, that the witnesses and their testimony inevitably would have been discovered in the normal course of police investigation.” (Citations omitted.) See also People v. Quintero, 657 P.2d 948 (Colo.), cert. dismissed sub nom. Colorado v. Quintero, 464 U.S. 1014 (1983).
The Supreme Court has recently established, in the sixth amendment right to counsel context, that the exclusionary rule does not compel the suppression of evidence that the prosecution can show would have been inevitably discovered absent the police misconduct or mistake: “If the prosecution can establish by a preponderаnce of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received.” Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984) (footnote omitted).14 Moreover, the reception of such evidence does nothing to compromise “either the integrity or fairness of a criminal trial.” Id. at 2510. This analysis applies equally in the context of a fifth amendment violation. See id. at 2508 n. 3. Thus, the challenged evidence in this case would have been properly admitted if the People had demonstrated that it would have been inevitably discovered. See People v. Lee, 630 P.2d 583 (Colo. 1981).
B.
We now turn to the court of appeals’ holding that the inevitable discovery question was not preserved for review. At the suppression hearing, the deputy district attorney made the following statements in his argument to the court:
MR. SELL: I realize that they learned of the — as we‘ve been calling here — the “Indiana Connection” through some statements obtained from Mr. Briggs. Then they, subsequently, learned of who Bill Neeley was through talking to Kirk Martin. And they, subsequently, learned through Bill Neeley various other bits оf information once they had interviewed him. I think, when we look at the whole scenario of that, there are a number of exceptions to the Wong Sun rule that are present here. And the Court is aware there are several exception, [sic] one being if the evidence is the connection between illegality and the evidence subsequently discovered, if that connection is so attenuated as to dissipate the connection, there is not taint and the rule of law of suppressing that evidence would not apply.
Secondly, there‘s the exception of independent source. I think that also applies in this case because we have an independent source. We have Bill Neeley. We also have Kirk Martin who is actually an independent source because they already knew his identity. They knew that he had some involvement with the burglary that‘s been investigated, so they came and talked to him.
THE COURT: Are you saying this is an intervening independent act by a third party?
MR. SELL: It‘s an independent intervening factor or intervening source.
The record establishes that the prosеcutor did not rely upon “inevitable discovery” during the proceeding, but, instead, urged that the contested evidence should be admitted under either the “attenuation” or “independent source” exceptions to the exclusionary rule. There is a functional similarity between the inevitable discovery and independent source doctrines in that each is designed to prevent the prosecution from being in a worse position simply because of police error or misconduct, if the government can establish that the evidence was discovered through a source independent of the constitutional violation or that the information would have been inevitably discovered by lawful means. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In his dissenting opinion in Nix, Justice Brennan cogently explained the distinction between the two exceptions.
When properly applied, the “independent source” exception allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means.... The “inevitable discovery” exception ... differs in one key respect from its next of kin: specifically, the evidencе sought to be introduced at trial has not actually been obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations were allowed to proceed.
Id. at 2517 (Brennan, J., dissenting).
In applying these principles to the record before us, we conclude that the inevitable discovery issue was not raised in the trial court. We construe the substance of the evidence presented by the prosecutor and his arguments at the suppression hearing as raising only the grounds of attenuation and independent source15 as exceptions to the exclusionary rule.16 Thus, the
The judgment of the court of appeals is affirmed in part, reversed in part, and remanded with directions to return the case to the district court for further findings consistent with the views expressed in this opinion.
ROVIRA, J., dissents in part and concurs in part.
ERICKSON, J., joins in the dissent and concurrence.
KIRSHBAUM, J., does not participate.
ROVIRA, Justice, dissenting in part and concurring in part:
I respectfully dissent from Part II of the majority opinion.
Part II of the majority opinion adopts “at least” a five-part test for purposes of determining whether there was sufficient attenuation between Briggs‘s statements of January 4, 1980, and the challenged evidence obtained through Martin. At 917. The majority then remands the case for findings consistent with the new test. While the test may be of some help to trial courts deciding attenuation issues in the future, I see no need for remanding this case to the trial court. Rather, the substantial record which already exists not only provides overwhelming evidence of Briggs‘s guilt but also supports a finding of attenuation under the new test.
The first factor of the majority‘s five-part test requires the trial court to consider “the role played by Briggs‘s involuntary statements in inducing Martin‘s cooperation.” Majority op. at 917. Admittedly, Briggs‘s statement of January 4, 1980, played a role in convincing Martin to cooperate. The record shows that on January 4 Briggs admitted to the police that he committed the burglary with Dewey and that Martin had transported some of the stolen property to Indiana. Based on this information, the police immediately confronted Martin, gave him Miranda warnings, and proceeded to establish the first link in a rather long chain which ultimately led to Briggs‘s conviction. This conclusion is easily drawn from the existing rеcord.1
While the first factor, as applied to this case, militates against a finding of attenuation, the remaining four factors do not. Moreover, the record, as is, contains evidence relevant to the remaining four factors sufficient to preclude the need for remand.
The second factor of the new test requires the trial court to consider “the length of time between the involuntary statements and discovery of the challenged evidence.” However, the record already shows that five days passed between the date Briggs was promised immunity, January 4, 1980, and the date Martin first made statements implicating Briggs in the murder after he requested immunity, January 9, 1980. Similarly, we already know that ten days passed between January 4, 1980,
The third factor requires the trial court to consider “whether Martin was a suspect.” Here again, I think the record clearly shows that Martin was a suspect at the time of the initial illegality. The record establishes that as early as December 20, 1979, detectives had questioned Martin about the burglary and the murder. On that date, the police discovered that Martin was living with Briggs, was occupying the murder victim‘s old room, and was in possession of a camera believed to have been stolen in the Barnewell burglary. In fact, on December 20, 1979, after consenting to a search of his room, Martin told the police that he had purchased the camera from Dewey. In sum, the record now shows that Martin was indeed a suspect; accordingly, there is no need for remand on this point.
The fourth factor requires the trial court to consider the “degree of free will exercised by Mаrtin.” In considering the free will of Martin, the majority also urges the trial court to consider whether Martin was acting under a “promise” of immunity as opposed to a “grant” of immunity. In analyzing the free will factor, I believe that the record contains sufficient evidence that the statements, recording, and testimony obtained through Martin were all accompanied by indicia of free will. Specifically, it is important to note that Martin requested immunity on January 9; the police did not offer immunity. It is also important to consider that Martin had displayed some tendency toward cooperation as early as December 20, 1979, when he consented to a search of his bedroom and later admitted to the investigating officers that he had purchased the stolen camera from Dewey. With regard to Martin‘s free will relative to surreptitiously recording Briggs on January 14, the trial court has already found that Martin was motivated, in part, by a desire “to obtain sufficient information to clear his name,” “to exonerate himself from the deceptive results of the polygraph examination,” and “to clear his own name and rehabilitate his position as to his claim of veracity.” These findings by the trial court, supported by the record, clearly evidence an intention on the part of Martin to cooperate with the police. The fact that Martin was formally granted immunity on the date of the preliminary hearing does not extinguish or limit this preexisting inclination toward cooperation.
Given, however, that the trial court must now once again consider the free will issue, I think it important to emphasize a few of the factors which have been recognized as significant in determining the existence of free will in attenuation analysis. In United States v. Stevens, 612 F.2d 1226 (10th Cir. 1979), cert. denied, 447 U.S. 921 (1980), a case in which an accomplice agreed to testify against the defendant as part of a plea bargain, the Tenth Circuit found “sufficient voluntariness” and, in so doing, noted that the witness‘s decision to testify was motivated in part “by a desire to change his life style and stay out of trouble.” Id. at 1230. In United States v. Mergist, 738 F.2d 645 (5th Cir. 1984), the Fifth Circuit found attenuation and noted it was relevant that the witness said “that he was testifying voluntarily and of his own free will, and had not been coerced or threatened to dо so.” Id. at 648. See also United States v. Hooton, 662 F.2d 628, 632 (9th Cir. 1981), cert. denied, 455 U.S. 1004 (1982). In United States v. Leonardi, 623 F.2d 746 (2d Cir.), cert. denied, 447 U.S. 928 (1980), the Second
In analyzing the free will issue, the majority places particular emphasis on the distinction between a promise of immunity and a formal judicial grant of immunity. The majority finds this distinction important because a witness testifying under an official grant of immunity may face a jail term for contempt or prosecution for perjury if he refuses to testify. Conversely, the witness who provides evidence while under a promise of immunity is not subject to such sanctions. Majority op. at 920. The majority suggests that this distinction affects the free will determination because testimony provided pursuant to a formal grant of immunity is akin to “compelled” or “coerced” testimony. While I doubt that this distinction has merit, it must be emphasized that the majority has not adopted a per se rule; that is, the mere fact that evidence is obtained from a witness under a formal grant of immunity does not automatically foreclose a finding of free will. Majority op. at 919-920. It is still possible for the prosecution to establish that the witness acted with free will both before and after receiving the official grant of immunity. Upon such a showing, the trial judge would be warranted in finding sufficient attenuation between the initial illegality and the testimony of the witness.
The fifth factor mandated by the majority requires the trial court to consider “the time, place, and manner of all of the questioning of Martin.” This factor is apparently derived from United States v. Ceccolini, 435 U.S. 268 (1978), in which the Court stated: “The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness.” Id. at 277. Unfortunately, the Ceccolini Court did not explain what may or may not be an appropriate time, place, and manner. However, there is nothing in the record suggesting that the time, place, and manner of questioning was inappropriate. If there was anything inappropriate or unduly coercive about the time, place, and manner of questioning, I think it is safe to assume that a record would have been made on the issue.
Hence, all of the factors listed by the majority as determinative of the attenuation issue are already satisfied to varying degrees by evidence found in the record. In the words of the
Finally, I disagree with the majority‘s categorical rejection of the balancing analy-
In a proper case this rationale would seem applicable to the Fifth Amendment context as well.
The deterrent purpose of the exсlusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the deterrence rationale loses much of its force.
417 U.S. at 447. Unfortunately, Justice Rehnquist never explained what the “proper” fifth amendment case might be. Clearly, Michigan v. Tucker established that a majority of the Supreme Court was unwilling to hold that the fifth amendment forbids all inquiry into the nature of police misconduct.
The fifth amendment violation in the present case stems from the promise of immunity which was given the defendant on January 4, 1980. As noted by the majority, the People did not appeal the trial court‘s ruling that Briggs‘s statements pursuant to the promise of immunity were involuntary because they were based on “promises [that] werе implied regardless of how slight they may be.” It is important to note the trial court found that there were “no threats or violence in this case....” Hence, we have an involuntary statement elicited in good faith by the police. Against this should be balanced the social costs associated with excluding probative and reliable evidence of the defendant‘s guilt. In my opinion, this is the type of “proper” fifth amendment case in which a trial judge should consider, in addition to the other factors promulgated by the majority, the nature of the alleged police misconduct.
Accordingly, I would reverse the judgment of the court of appeals on the issue of attenuation and affirm the judgment of the trial court. I concur in the judgment of the court on the issue of inevitable discovery.
Notes
In a number of cases courts have found insufficient attenuation to break the connection between the challenged testimony and the initial misconduct. In United States v. Scios, 590 F.2d 956 (D.C. Cir. 1978), an illegal search revealed the identity of a witness who, although initially invoking his privilege against self-incrimination, subsequently testified under a grant of immunity. In holding that the witness’ testimony was not sufficiently attenuated from the illegal search to dissipate the taint of the illegality, the court noted that the decision to testify was “not
a matter of choice, or free will, but made solely to avoid being jailed for contempt.” Scios, 590 F.2d at 961. Such a decision, in that court‘s view, was “purely and simply a product of coercion,” id., and, thus, no voluntary act of free will could be said to have attenuated the taint of the illegal conduct. Similarly, in United States v. Rubalcava-Montoya, 597 F.2d 140 (9th Cir. 1978), the court suppressed the testimony of several illegal aliens discovered as the result of an illegal search of a car in which they were concealed. In assessing whether sufficient attenuation had occurred, the court emphasized that “a key element is whether the testimony is the product of the witness’ independent act of will, neither coerced nor induced by the consequences of the illegal search.” Rubalcava-Montoya, 597 F.2d at 143. The absence of any indication in the record that the witnesses testified voluntarily led the court to infer that the discovery of the witnesses’ illegal alien status was used as leverage to coerce their testimony. Thus, the close relationship between the illegality and the challenged testimony precluded a finding of attenuation in these cases. See also Williams v. United States, 382 F.2d 48 (5th Cir. 1967); United States ex rel. Hudson v. Cannon, 529 F.2d 890 (7th Cir. 1976); United States v. Alston, 311 F.Supp. 296 (D.D.C. 1970) (no attenuation where robbery victim discovered when illegal search of defendant‘s wallet disclosed stolen check); Smith v. United States, 344 F.2d 545 (D.C. Cir. 1965) (no attenuation found where possessor of stolen property would not have come forward absent a police investigation based on misconduct).Other courts have applied this ad hoc analysis to reach the conclusion that challenged testimony was sufficiently attenuated from the primary illegality to dissipate the taint and allow admission of the evidence. In United States v. Stevens, 612 F.2d 1226 (10th Cir. 1979), cert. denied, 447 U.S. 921 (1980), the court found adequate attenuation from an illegal wiretap when the witness, arrested with the defendant, implicated the defendant more than a month after the witness’ arrest and after entering into a plea bargain. The court in Stevens distinguished United States v. Scios, 590 F.2d 956 (D.C. Cir. 1978), discussed above, on the basis that Scios involved testimony under threat of contempt after immunity had been granted, while Stevens “оffered to testify; his statement declared this decision was in part motivated by a desire ‘to change his lifestyle and stay out of trouble.‘” Stevens, 612 F.2d at 1230. See also United States v. Leonardi, 623 F.2d 746 (2d Cir.), cert. denied, 447 U.S. 928 (1980) (decision to cooperate with authorities made out of self-interest and, thus, voluntary); United States v. Mergist, 738 F.2d 645 (5th Cir. 1984) (attenuation found where witness testified as to the voluntariness of his testimony); United States v. Evans, 454 F.2d 813 (8th Cir.), cert. denied, 406 U.S. 969 (1972) (attenuation found where witness elected to plead guilty and volunteered to testify against other defendants); Smith v. United States, 324 F.2d 879 (D.C. Cir. 1963), cert. denied, 377 U.S. 954 (1964) (attenuation found where, after “reflection,” an uncooperative witness elected to testify).
We view this analysis as tantamount to stating that a witness may always choose to resist the official coercion brought to bear upon him and, as the force of that coercion increases, it is merely the difficulty of the witness’ choice to continue to resist that increases concomitantly. And while we refuse in this opinion to adopt a per se rule that immunized testimony is always involuntary for purposes of the attenuation analysis, we similarly decline to adopt the converse position, suggested by the reasoning of Houltin, that a witness always exercises his free will in choosing to testify rather than risk contempt.
He testified in pertinent part, as follows:
Q The January 9 interview with Bob Brown, did you implicate anyone in that interview?
A Yes, I did.
Q Whom did you implicate in that interview?
A Myself and Paul Briggs.
Q What was different about the January 9 interview that made you decide to implicate someone?
A To be granted immunity by the District Attorney.
Q Were thеre any conditions on that grant of immunity, as you understood it?
A Yes.
Q What were those conditions?
A They were that I would tell them the truth about my involvement and successfully pass a polygraph test. And as long as I did not commit any violent crime, then I would not be charged with anything.
Q So you made the deal or the understanding that you would have immunity and you made a statement to the police implicating yourself and Mr. Briggs on January 9, right?
A Right.
Q Had you not been granted immunity, would you have gone up there wired, just to satisfy people that you were telling the truth?
A No.
Q Had you not been offered a grant of immunity, would you have gone up and participated in that conversation, the wired conversation, with Paul Briggs?
A At this time I do not know.