State v. Bainbridge

cum- get away idea is to from The whole procedures and technicalities

bersome that, greatest extent so

pleading compensation can be

possible, claims for

decided on their merits. Blanks, 98 Idaho

Hattenburg v. added). (1977). (emphasis

567 P.2d our nation’s slightly from

Paraphrasing Allegiance, suggested it is

Pledge of state with strive to become “one

this Court all,” especially for justice for

liberality and injured

working people who become

through no fault of their own.

787 P.2d 231 Idaho, STATE

Plaintiff-Respondent, BAINBRIDGE,

Randall W.

Defendant-Appellant.

No. 16808.

Supreme Court of Idaho.

Feb. Morris, Boise, defendant- for A.

Stewart appellant. Jones, Gen., Thomas, ple persons, houses, Atty. Lynn to be secure in their

Jim E. Boise, against Gen., papers effects argued, plaintiff-re- unreasonable Sol. searches shall not be spondent. and seizures violat-

ed; issue and no warrant shall without affidavit, McDEVITT, probable par- shown cause Justice. ticularly describing place to be rehearing appeal brought of an This is thing searched to be Bainbridge from his conviction Randall seized. following for degree first murder a retrial case, In this no warrant was is- where pursuant Bain- the case State v. sued, proper analysis determining for 273, (1985). bridge, 108 Idaho 698 P.2d 335 illegal seizure is whether there has been id., Bainbridge, In re- State v. this Court to determine: versed the first conviction and remanded concerning police ques- for a instructions A. conduct new trial with Whether the does, tion in fact constitute a sei- hypnotically testimony. refreshed zure, does; if it The facts of this case are forth in set B. Whether the seizure falls within one id., and Bainbridge, State v. v. Si- State recognized exceptions vak, 197, (1986). 731 P.2d 112 Idaho 192 requirement. See Duna- warrant Bainbridge summary, and Sivak were con- York, 200, 442 way New U.S. 99 v. victed of the murder of service station 2248, (1979); S.Ct. 60 L.Ed.2d 824 attendant, Dixie Sivak sen- Wilson. Johnson, 516, 110 Idaho State v. 716 tenced to death. received a (1986). P.2d 1288 fixed life sentence. determined C. Once it has been constitutionally prohibited there is a I. AMENDMENT FOURTH SEIZURES seizure, or information evidence ac- Bainbridge claims that statements he quired as a result of the seizure will officers, police made to in the Barrister be excluded unless the causal con- room, interrogation' Station should have seizure nection between the they been suppressed because made acquisition Wong has been broken. pursuant illegal to an seizure that violated States, 471, 371 U.S. Sun v. United I, 17 rights under Article § 407, (1963); 441 83 9 L.Ed.2d S.Ct. Constitution, and the Fourth Amendment Mendenhall, United States v. 446 Constitution, to the United States made 1870, 544, U.S. 100 S.Ct. 64 L.Ed.2d applicable through the individual states 908, 497 448 U.S. 100 reh. denied Amendment to Fourteenth the United 3051, (1980); 1138 S.Ct. 65 L.Ed.2d States Constitution. 491, 460 Royer, Florida v. U.S. 103 issues, reviewing 1319, (1983). When “seizure” L.Ed.2d 229 S.Ct. 75 we the trial court’s find defer to factual A. WHETHER THE POLICE SEIZED

ings, they clearly unless are erroneous. BAINBRIDGE review, novo, freely We de court’s trial legal determination of whether or not an argues this State Court’s illegal seizure occurred. United States (that Bainbridge 1 decision Constitution, IV; Amendment v. State spoke voluntarily) precludes 656, Heinen, (1988). 114 Idaho 759 P.2d 947 any possible Amendment Fourth violation. contesting legality Since Supreme United Court decisions States seizure, review de we will this issue if, “only hold that a occurs view seizure novo. surrounding of all of the circumstances is virtually The Fourth Amendment iden- incident, would have reasonable 1, tical 17 of the to Article Idaho Consti- § free to believed he was not leave.” reads: 544, tution which Mendenhall, 446 U.S. v. United States 1877, 554, 1870, 100 64 L.Ed.2d 497 searches and sei- S.Ct. 17. Unreasonable § (1980); also, prohibited. right Royer, v. 460 peo- See Florida zures —The 491, 502, U.S. S.Ct. When arrived at Sta- Barrister tion, (1983); Ohio, Terry immediately L.Ed.2d 229 392 U.S. officers took Bain- bridge interrogation to an (1968); room. One of 88 S.Ct. 20 L.Ed.2d 889 parole the officers York, left to call officer Dunaway v. New Bainbridge. stayed The other (1979). S.Ct. L.Ed.2d interrogation room. He Bain- informed purpose of the Fourth Amendment bridge rights of his him Miranda and asked Article 17 of Idaho Constitu- § questions. Bainbridge said that he wanted protect person’s legitimate tion is to ex- parole to talk to his officer. The detectives pectation privacy. See State John- gave explaining him a form his Miranda son, 110 Idaho 716 P.2d 1288 Rights. signed portion He the waiver Upon making Bainbridge, contact with that form. The officer continued to ask promptly questions officers Bainbridge respond- informed him of him to which rights. ed. There can be no doubt that Bain- Miranda He stated that he did not bridge’s dramatically “seizure” was intensi- oppor- talk to want to them until had an in the Barrister reason- fied Station. No officer, tunity parole to consult with his person would feel free to under able leave phone. he but that did not have One of those circumstances. “suggested” the officers that the three of them drive the station house and make majority In Justice White’s dissent to the the call. Mendenhall, joined by opinion U.S. v. Brennan, Stevens, Marshall and he wrote: they The record is clear that while were may concerning Whatever doubt there be house, the officers con- Ms. Mendenhall’s Fourth whether ingress egress. all of the trolled One implicated Amendment interests were Bainbridge’s spouse into officers followed stages during the initial of her confronta kitchen and controlled to the access agents, tion with the DEA she undoubt rear door. other stationed himself meaning edly was “seized” within the living door room next front agents when the Fourth Amendment located. where public her escorted from the area point person At this no reasonable would question office terminal the DEA for thought free they have were to leave. In strip-search person. and a of her “suggestion” only not reflected a officers’ York, 200, 442 99 Dunaway v. New U.S. action, for immediate but it directed desire 2248, (1979), 824 we held S.Ct. 60 L.Ed.2d taken. The fact the course action be accompanied police that a who Bainbridge’s spouse told him he did purposes a police officers to station for go inconsequential. have to She was not is undoubtedly interrogation “seized being not the one taken. She was sense,” Amendment even in the Fourth position. his though “he not told he was under 207, 203, 99 Id. at S.Ct. at arrest.” Shortly after officers and significant that the 2251. We found it car, him that they informed got into station, police suspect to a was taken him to the they going were not take he that was ‘free never informed “was station, taking him to City but were Garden physically been go,”’ and have “would They seek did not the Barrister Station. accompa if had refused to restrained inform him approval they did not escape the officers or had tried ny go. point, could At this that he refuse at custody.” at 99 S.Ct. Id. their clearly seized and 2256.[1] Bainbridge in had custody. officers Mendenhall, 100 S.Ct. squad making car were unilateral has Supreme taking Court The United States about where were decisions obtained consistently that a confession held him. occurred, represented belief seven of although wrote be White 1. It should noted Powell, Burger dissenters, sat. opinion Justices who that a seizure nine for

249 distinguish- sufficiently during interrogation that fol instead means a custodial purged primary taint.” able to be illegal lows an seizure should be excluded Fifth regardless speaker’s of whether the Id. violated, rights

or Sixth Amendment were voluntary explaining why In waiver exception: and there is but one rights Miranda does Fifth Amendment and intervening causal when events break the seizure, illegal the U.S. Su- not cure an illegal arrest and stated: preme connection between the in Brown v. Illinois Court themselves, the confession so that the confession warnings, by If Miranda of an “sufficiently purge, an act of free will to held to attenuate the taint arrest, regardless of Alabama, unconstitutional primary Taylor taint.” Fourth purposeful how wanton 2664, 2667, 457 U.S. 102 S.Ct. violation, the effect of the Amendment (1982); also, L.Ed.2d 314 See Brown v. substantially exclusionary would be rule Illinois, 590, 599-602, U.S. S.Ct. Mississippi, 394 diluted. Davis v. See 2254, 2259-61, (1975); 45 L.Ed.2d 416 Dun 726-27, 1394, 1397, 89 S.Ct. U.S. York, away v. New (1969). Arrests made with- L.Ed.2d 676 S.Ct. cause, probable or without out warrant “investigation” questioning would In each of the above cases Su encouraged knowledge by the be if the state preme Court held that even therefrom could well be evidence derived voluntary under the Fifth ments were simple made admissible at trial Miranda, Amendment and the Fourth giving warnings. expedient of Miranda short, Amendment issue would remain. Any incentive to avoid Fourth Amend- illegal the causal connection an between by would be eviscerated ment violations police seizure and statements made to the effect, making warnings, the in a “cure- by voluntary of the is not broken waiver all,” guarantee and the constitutional alone. Fifth Amendment against unlawful searches and seizures could said to be reduced to a “form of be this B. WHETHER BAINBRIDGE’S STATE- seizure will be excluded unless the causal connection between quisition has been broken. a result of a United CLUDED MENTS SHOULD HAVE rule, 417 Evidence States, 371 U.S. (1963). the constitutionally impermissible Wong AT TRIAL or information In further the seizure and the ac Sun 471, 488, court stated: explanation Wong BEEN EX- acquired 83 S.Ct. Sun v. ways make the act ment warnings, fess, the initial illegally ^[643] State here L.Ed.2d 1081 words.” It is free as an act of free will purposes, at entirely will frequently may See alone argues, illegality. But the Miranda 81 S.Ct. (1961)]. break, Mapp possible, the sufficiently product causal connection be- for v. per ^[1684] persons arrested Ohio, Fourth Amend- decide to unaffected se, course, at 1687 [6 cannot 367 U.S. as the con- al- confession. illegality the tween is that all evidence We need not hold every in case that They cannot assure simply be- poisonous of the tree” “fruit has not Amendment violation the Fourth light not have come to but cause it would v. unduly exploited. Westover been See Rather, police. illegal actions of the 436, 496-97, States, 384 86 U.S. United a case is apt question such the more 1602, 1639, 16 L.Ed.2d S.Ct. “whether, granting establishment (footnotes Brown, omit- at 2261 S.Ct. illegality, evidence to which primary ted). come objection is made has been instant on to state: illegality or The Court went by exploitation of that at Rehnquist applied a reason- place, the "whether took “assumed” that a seizure Blackmun standard,” majority would feel free to leave agreed it was not a able with the but constitutionally impermissible no seizure. seizure. Stewart but found question of whether a probable confession where officers did not have is product of a free Wong will under arrest, cause to but instead took a suspect, Sun must be answered on the facts of custody hoping interrogation into that an single each dispositive. case. No fact is yield incriminating would statements. The workings human mind are too complex, possibilities of miscon The State bears the burden of show duct permit protection too diverse to ing that the causal connection between an the Fourth Amendment to turn on such a impérmissible and statements seizure made [Referring to talismanic test. test detainee, sufficiently has been bro voluntary which a waiver of Miranda ken so as to render those statements ad alone, rights, would be sufficient Illinois, at missible trial. Brown v. See following break the causal connection However, 422 U.S. at 2262. 95 S.Ct. at impermissible seizure, thereby making the Brown court also noted that even pursuant to statements the Miranda failed to where lower courts have un waiver The Miranda warn admissible.] dertake the inquiry Wong mandated factor, ings sure, important are an to be Sun, may trial result a record of determining whether the confession amply depth for sufficient detail and by exploitation illegal obtained of an ar reviewing court to make the determination. rest. only But are not the factor Brown, As in the record of the trial is temporal be proximity considered. amply sufficient for us to determine wheth confession, of the arrest and the er statements should have presence intervening circumstances, been excluded. Louisiana, see Johnson S.Ct. L.Ed.2d (1972),and, particularly, purpose I. THE PROXIMITY TEMPORAL OF misconduct[2] flagrancy of the official THE AND ARREST SEIZURE THE are Wong all relevant. See Sun Unit CONFESSION States, ed 371 U.S. 83 S.Ct. at temporal proximity of sei 419. The voluntariness statement confession, case, zure and the this requirement, is a cf. threshold 18 U.S.C. analogous to situation in Brown. showing And the burden § Brown, the seized at ap defendant was rests, course, admissibility on the During proximately p.m. twenty the 5:00 prosecution. the police minute drive the station offi to (footnotes omitted). 95 S.Ct. at questions cers asked which he Brown alter opinion, recently released the United falsely. nately Upon evaded or answered (9th George, 883 F.2d Cir. States v. house, at Brown was arrival the station 1989), Appeals the Ninth Circuit Court of interrogation placed in floor the second explained policy the reasons behind the twenty He some room. was left alone for three considerations laid out in Brown. Upon returning interroga minutes. temporal prox- explained The court Brown of his tion room officers warned imity of the arrest confession and rights. no Miranda There was assertion intervening presence circumstances rights. that he did understand these determining assist in whether the defen- pertaining Brown’s first statement response police questioning dant’s is suf- question separated from murder his ficiently purge act of free will hours. illegal arrest less than two La unlawful primary taint of the invasion. ter, p.m., three hours approximately 8:45 Determining “purposes flagrancy apprehen forty-five minutes after misconduct” satisfies the de- of the official sion, that he specifically Brown said want exclusionary rule terrent rationale to talk the homicide. decisive most often in cases ed about and has been Edmons, 2. The court here cited United States omitted. Cir.1970). (2d 432 F.2d 577 Other citations Brown, Bainbridge lying you. you

Like was seized from not You know that home, questions squad asked in the car here if we didn’t know.” wouldn’t be way on the and imme- station Bainbridge: “Yeah.” diately interrogation taken to an room af- “And, (pause), Officer: ah we’re interest- arriving Upon entering ter at the station. ed, naturally, you in whether or not have room, interrogation Bainbridge signed happened why an account of it or how it rights. a written waiver of his Miranda happened. Don’t us to could have leave engaged The officers then him in a discus- conclusion just draw the worst because pertaining day sion to his activities on the what we saw.” question. Bainbridge made no incrimi- nating statements. The officers then left Bainbridge: “Yeah.” parole him alone with his officer. Follow- important.” “That’s Officer: consultation, private Bainbridge this The officers left the room. presence admitted his at the time Dixie Bainbridge murdered. then discussed the matter Wilson was approximately with Fisher for the next 2. THE PRESENCE OF INTERVEN- Bainbridge twenty minutes. admitted to ING CIRCUMSTANCES Fisher that he had been with Sivak when Bainbridge killed Dixie de- Sivak Wilson. properly warning We hold that Bain- murder, participation in nied active bridge of his Fifth Amendment/Miranda claiming just he had watched disbe- rights by itself was not itself sufficient Bainbridge lief. Fisher then told purge impermissible taint of the detectives, Vaughn Killeen and Dee Pfeif- seizure. er, people were that he had worked with significant There is an additional factor before, Bainbridge replied: to which distinguishes the circumstances of this they saying. “That’s what That’s case from Brown. That is them, why you I kinda told I told them private parole consultation with his officer. know, I telling let them know that I was tape The audio of the station house interro- truth, going get it but weren’t gation discussing reveals that after what repeated out of me.” Fisher then Bain- day did on the that Dixie Wil- bridge’s story himto to make sure he had murdered, son was one of the detectives straight. everything parole told officer was there, door, got up, opened brought interroga- The officers came back to the officer, Fisher, Bainbridge’s parole Greg tion room. moments after their re- Within briefly into the room. The in- turn, officers give you. stated: “I it to Fisher transpired formed what had along give you You all and I knew it it to interrogation up point. room to that admitting as clear as a could without it....” Bainbridge,

One officer then addressed saying: “Maybe you want to hear it from Bainbridge’s statement that meet- before Greg you ought cooper- or whether not to ing with Fisher he would not admit to ate with us and be honest with us.” anything shows he did not intend to admit anything think that had admitted

Bainbridge responded: “I know how I anything prior consulting to with Fisher. frightened.” sound. I sound Bainbridge’s to the offi- first admission “Well, you Officer: know lot of times cers came after he had been alone with that-ah-(to things happen Bainbridge) let Fisher, Bainbridge whom had okay? things A me lot of times finish— Bainbridge selected for then told advice. happen you that when look at them Lacey bad; the officer that he had been with pretty you but find out the look when gas and that he had why they happened they’re not all Sivak station reasons bad, Dixie Wilson. These or at least the reasons are a little seen Sivak murder that facts, lying you the fact that Bain- different. We’re not when we combined with bridge, first contact you’re know that involved this. We’re from the time of his 252 suspects officers Pfeifer only

with Killeen and had said leen testified at trial that the Bainbridge Sivak, testimony that he did not to talk until he the were want had trial opportunity speak parole Sprague his Pfeifer with offi- from Detective and Officer cer, (the officer) Bainbridge’s private something indicate reporting con- indicates significant quite sultation with Fisher was a in- Pfeifer that at different. testified tervening illegal Bainbridge circumstance between the the time was seized there were incriminating suspects nothing seizure and four or distin- five guished Bainbridge from sus- statements. the other pects. Sprague Officer also testified THE AND 3. PURPOSES FLAGRAN- suspects there a few at this different OF THE CY OFFICIAL MISCON- time. The record corroborates Pfeifer and DUCT Spragues’ testimony. At Bain- the time bridge seized, Sivak not even been had factors, pur- “The st of three ‘the arrested. pose flagrancy of the official miscon- duct,’ important’ ‘particularly because it however, was, nothing There in the man- to satisfying comes closest the ‘deterrence “seizing” ner of of the officers the action application exclusionary rationale surprise, fright or con- Bainbridge to instill ” George, F.2d rule.’ United v. States stated, fusion, although as not- (9th Cir.1989), citing United ed, frightened. that he was Perez-Esparza, States v. F.2d 4. THE RESULT (9th Cir.1979). “This factor has been most in those decisive often cases where considering dis- After all the factors probable police officers not have cause did above, hold the threshold cussed we arrest, to effectuate but instead took in- properly factor hoping that an suspect custody into interro- rights, combined formed of his Miranda incriminating yield gation would state- his lengthy private his discussion with 604-05; Brown, 422 at E.g. ments. interrupting any police activi- parole officer 2262-63; Ho- at United States v. S.Ct. militate in ty, outweigh considerations that cf (9th Cir.1987).” ward, 828 F.2d excluding Bainbridge’s favor of statements 883 F.2d George, States United parole made after his conversation with officer. Illinois, Supreme Court Brown why illegal arrest “had a explained speaks on this issue case law purposefulness:” quality of or not is a break terms of whether there arrest was impropriety obvi- intervening cir- the causal connection. The ous; virtually fact was awareness of that apropos inquiry is the most cumstance two detectives when case, Bainbridge’s conceded question. this In this acknowledged, in they repeatedly their parole officer private consultation with his testimony, purpose of their ac- intervening significant circumstance. investigation” “ques- or for was “for speak tion along All wanted to arrest, design tioning.” The both talking the de- parole his officer before execution, investigatory. The de- offi- speaking parole tectives. After expedition this upon embarked cer, changed dramatically. tectives And story something hope that for evidence in the of the officers’ purposefulness while the up. manner in might turn which highly undesirable improprietous actions gives effected discouraged, simply arrest was Brown’s it is and should be having been calculated appearance in the causal enough the break to overcome surprise, fright, and confusion. by Bainbridge’s private cause connection created officer, parole viewed consultation with Brown, 422 95 S.Ct. at U.S. at of his his valid waiver conjunction in (footnotes omitted). (1975) & citations Rights. Miranda case, Brown, in that appears It in this hold the statements Pfeifer) Accordingly, we that (Killeen and seizing officers house in Bainbridge made the station Kil- expedition. While fishing on a were interrogation night April testimony ground that on the ton’s on the it was under The trial inadmissible Iwakiri. properly were admitted at trial. granted part. in The trial court motion testimony and evidence II. court ruled that all TESTIMONY OF PREVIOUSLY pertaining Leyden’s post- to and Chilton’s HYPNOTIZED WITNESSES under hypnotic recall was inadmissible Appellant Bainbridge argues the dis- Iwakiri, could tes- but that both witnesses ruling pre-hyp- trict court erred in they prior recalled to tify as to matters Leyden notic recall of witnesses and Chil- being hypnotized. police reports ton was admissible because safeguards in The six set forth Iwakiri reliability. substantiated their Both Chil- testimony. Ac- pertain post-hypnotic to Leyden ton and had been at the scene properly applied cordingly, the trial court morning the crime on the that Dixie Wilson safeguards ruling Leyden’s these purchased gasoline was killed. Chilton post-hypnotic testimony inadmis- Chilton’s paid for it in the station. He saw Dixie safeguards per- do not sible. Iwakiri large men. Wilson and he saw two bearded pre-hypnotic testimony. Regarding tain to something He stated that he sensed pre-hypnotic testimony, the court Iwakiri Leyden up amiss. had station driven stated: going inside, go and was but when she may trial court determine that the [T]he looked into the station she did not see her competent testify witness is still friend, Dixie Wilson. Instead she saw two recollection is areas where witness’s men. When one of the men looked at her hypnotic unmarred sessions. This door, walking and started towards the she may may or not be limited to situations decided to leave. parts is clear that certain of a where it Bainbridge argues that the trial court’s memory witness’s of events were ex- (1) ruling incorrect at the because: hypnosis istence and thus is still before Leyden time of trial neither had Chilton existence, untainted, hypnotic after any present memory they of certain details session. testimony included in their that were ex- 682 P.2d 571. Id. tremely damaging appellant Bainbridge; Superior The Court then cited Collins v. (2) police reports Leyden’s and Court, (1982), 132 Ariz. 644 P.2d 1266 pre-hypnotic Chilton’s statements were not proposition hypnosis for the does not Leyden

written until after and Chilton incompetent testify render witnesses hypnotized. officers at- “demonstrably” prior hyp- facts recalled hypnotic tended the sessions. officers’ regard to constitutes a nosis. With what reports could have influenced been what showing,” “demonstrable the Collins court This, hypnosis at the heard sessions. stated that: Bainbridge argues, the time combined with intending pre- party to offer the [T]he lapse pre-hypnotic statements between the hypnotic appropriately recall [should] writing reports, renders the written, or, tape pref- record in recorded reliability. reports void of indicia of form, erably videotaped substance knowledge about the witness’ heavily Appellant relies on prehyp- question evidence in so that Iwakiri, opinion in this Court’s State v. may be established. Such notic recall Iwakiri, 682 P.2d 571 In preserved must so that at recordation be specific safeguards forth this Court set six testimony of witness can be trial the testing used the district court to be prehypnotic recall. If such limited to admissibility hypnotically refreshed taken, steps are not admission on a testimony which were to be considered error, which, if pre-hypnotic recall will be “totality the circumstances” basis. require prejudicial, will reversal. trial, post-hypnotic Bainbridge’s first 644 P.2d at 1296. testimony Leyden and was ad- Chilton retrial, filed a in ar mitted. On the defendant the witness testifies Whether or de- by hypnotic unmarred session Leyden’s to exclude all of and Chil- eas motion monstratively prior hypnosis, “bigger” recalled to one was than other. The the granted testify court present the witness must from this motion and instructed jury the disregard to prior recollection those matters strike from their recalled testimony. minds A this hypnosis. recording to of statements prior required made to hypnosis is as a sum, court very the trial cautious verifying means of that the witness’s testi- in dealing Leyden’s testi- and Chilton’s mony at trial tainted by has not been the mony. Every objection raised defense hypnosis session. carefully counsel cor- considered and rectly decided. Because the witnesses police reports pre-hypno of the The testify only were allowed to to their then as Leyden sis interviews with indi Chilton present memory they recalled details approximately cate that at 6:45 a.m. the on prior being hypnotized, and because murder, day of the each of the witnesses police report properly this substantiated stopped at the service station and observed being testimony as reliable and untainted descrip men inside two the station. session, by the hypnosis we hold that reports in pre-hypnosis tions those indicate trial err. court did not beards, hats, men cowboy that the two had jeans. They and blue were described III. TESTIMONY OF GISH mid-twenties, males, being in their white Bainbridge next in the asserts error tall, and approximately six feet two hun testimony prosecu admission of the pounds. Leyden reported that dred one witness, That em tion Gish. witness was that pot-belly them had a one was ployed cash from the receipts to collect ,than bigger the other. service com station where crime was portions Sprague’s While of Officer re- mitted. testified she She that observed 17, 1981, port April are dated the details following along man her Sivak and another appear pages to at trial all on testified driving approximately her route one week April Sprague’s report. dated in prior opin She her the murder. stated Accordingly, appellant we find no merit passenger ion that vehicle Sivak Bainbridge’s argument the reports that Bainbridge that Bainbridge. asserts hypnosis written after the sessions. were infer jury allowed such identification significant por- find it that these We also through planning that he was involved police report tions of the statements were trial, Bainbridge stages of crime. At sug- into a manner introduced evidence innocent, unsuspect argued he was an gested defense counsel. Bain bystander at the crime scene. Finally, that defense counsel’s we note bridge testimony should argues that such objections Ley- specific to Chilton’s and unrelia have been excluded because it was testimony sustained. Counsel den’s were he attacks highly prejudicial, thus ble testimony to strike moved Chilton’s the wit only weight credibility wearing testimony. men station were the trial the two ness’s We hold that clothing pre- weight because and credibili “light-colored” court did not err. testimony properly a matter ty he said that hypnosis statement 103 Idaho clothing. Fenley, jury. State wearing “dark-colored” (Ct.App.1982). 646 P.2d granted the motion instructed court testimony disregard regarding jury OF THE JAIL IY. TESTIMONY objected clothing. Counsel the color INFORMANT HOUSE to which one of the Leyden’s testimony as “pot-belly” and which of the Bainbridge assigns had a next error men two Fazio, “taller,” testimony pre- her one men was because the admission of two merely jail fellow where statement she said inmate hypnosis prior to trial.3 “pot-belly” being and was held two men had a one drug ny during- I trial. related of- had been convicted Fazio produced for had testimo- He not been fenses.

255 testimony jailer in this case did instruct asserts that Fazio’s should have While the prohibited been keep eyes open under Massiah v. United Fazio and ears when to States, 377 U.S. brought jail, S.Ct. he was this was two (1964); L.Ed.2d 246 v. Hen United States prior Bainbridge’s to confinement. weeks 264, 100 ry, 447 U.S. S.Ct. 65 L.Ed.2d This, jailer with the fact that the combined (1980); Moulton, and Maine v. had no connection to or Killeen 106 S.Ct. 88 L.Ed.2d 481 case, investigation and Pfiefers’ suf- (1985). The court in Maine v. Moulton ficiently distinguishes this case from the explained testimony jailhouse how infor (In in Henry. facts United States v. Hen- implicates mants defendants’ Sixth Amend ry government agents an infor- instructed rights ment as follows: mant confined in same cell who was guarantees Amendment the ac- Sixth as the defendant alert to block to be cused, at least after the initiation for- defendant.) statements made charges, right rely mal on counsel Massiah, Contrary to the facts in Bain- as a “medium” between him and the bridge not housed in the same cell as above, guarantee State. As noted this They in cell Fazio. were housed block includes the State’s affirmative obli- single pris- that contained cell units. The gation not in to act a manner that cir- spent most of their hours alone in oners protections cumvents the accorded the During their own cells. the hours between by invoking right. accused this The de- p.m., al- 8:00 a.m. and 4:00 inmates were particular termination of whether a ac- congre- cells lowed to leave their own agents tion state violates the ac- meeting gate in a room and watch tele- right cused’s to the assistance of counsel Although con- vision. Fazio had numerous light obligation. must be in made of this including Bainbridge, on five or tacts with Thus, the Sixth Amendment is not violat- reviewing six occasions trial ed happenstance— luck or whenever— documents, testimony the crux of his incriminating the state obtains state- were that once when a number of inmates right ments from the accused after the room, gathered Bainbridge, in the T.V. counsel was attached. Henry, See comparing a woman on the T.V. screen to (POWELL, U.S. at 100 S.Ct. at 2189 victim, just stated: “That’s what she However, concurring). knowing explo- J. great big like. had those looked She by the opportunity ration State of an squeezing I her while she breasts and was confront the accused without counsel be- squirming death around. She had that ing present is as much a breach Bain- quiver.” The record indicates that obligation State’s not to circumvent the anyone in bridge’s comment was audible to right to the assistance of counsel as is anyone room and not directed to the T.V. oppor- the intentional creation of such an publication particular. broad tunity. Accordingly, the Amend- Sixth proves that he did not of the statement ment violated when the State obtains confidentiality expect any attorney client incriminating by knowingly statements spoke anyone general He privacy. circumventing right the accused’s particular. It was mere and no one present have counsel in a confrontation present and “happenstance” that Fazio was agent. the accused and between a State Fazio, police. mere “luck” that he told the at 487. S.Ct. admission, by his had testified at over own simply in this does not The record case 1,000 pro- proven trials. Someone with acts reveal that the state took affirmative certainly no en- pensity to “snitch” needed designed Bainbridge’s right to circumvent couragement from the authorities. Killeen Pfeifer to counsel. Detectives from the Appellant would have us infer refused to barter diminished specifically Fazio did receive favorable treat- fact that exchange for information with jail time subsequent the first Furthermore, specifi- ment the detectives Fazio. (at testify) that a he did not cally question Fazio not to Bain- trial which instructed made him at the time bridge. “deal” had been objectionable he overheard the T.V. room admission. We state- prosecutor’s so infer. merely cannot ments because made get attempt tapes admitted into inquired Defense counsel into all matters evidence and do indicate a deliberate relating Fa- testimony to Fazio’s at trial. imply that had the effort to the defense zio, oath, testimony under denied that his tapes edited. given result was as a of a deal made with authorities, that he the and denied (2) portions court After the ordered that any way working county the was tape referring Bainbridge’s parole to of the an informant. He also that he delib- denied jury, going edited to the status be before erately attempted any to incrimina- elicit agreed prose- the defense counsel to have ting Bainbridge. statements from The trial editing. task cution assume the Counsel rejected considered and court checked the edited versions never available argument paid police-in- that Fazio a was jury. to Counsel has went the before subjected formant. Fazio was to severe thereby any right object. Addi- waived to defense, leaving cross-examination the tionally, present has counsel failed to jury credibility. consider Accord- the to compelling argument fail- kind of that this ingly, ruled Fazio’s testimo- the court tape edit one was ure to statement Massiah, prohibited Hen- ny was not under on the the result of deliberate misconduct agree ry Maine Moulton. We prosecutor a mere part of the rather than affirm. oversight. prosecu- also the We note that from precautions prevent to Fisher tor took PROSECUTORIAL MISCONDUCT Bainbridge’s parole testifying that he was Appellant Bainbridge’s final attack And, to their while some hints as officer. proceeding underlying on tlu is that be from review- relationship could inferred prosecu a fair trial was denied because transcript, prosecutor the did ing the essence, Bainbridge In torial misconduct. neces- go the bounds of what was outside prosecuting attorney en claims that “the Fisher’s a foundation for sary to establish during every trick gaged almost devious Bainbridge. knowledge of trial, of his the and numerous incidents (3) any of Finally, we do not believe that through prejudicial conduct are mentioned alleged misstatements prosecutor’s the brief____” appellant’s out sufficiently deprive egregious to appellant’s arguments relate to All of Bainbridge of a fair trial. of two The first the either one matters. character turn to matter of We now attempted disclosures and prosecution’s evidence. parole on disclosures of the The second at the time murder. The trial sustained defense court prosecutor’s attempt put the victim’s at prosecutor’s objection counsel’s into evidence. character in evi tempt put the victim’s character ruled in- specifically court had The trial such prosecutor agreed that dence. Bainbridge’s parole pertaining to formation Appellant inadmissible. evidence Appellant inadmissible. status argues spite Bainbridge now (1) prosecutor nonetheless claims ruling prosecutor’s court’s trial of a portions the defense had hinted that prosecutor portrayed agreement, transcript recording edited tape family status good character and victim’s excluded; (2) edit one ref- failed to thereof throughout jury the trial. State Bainbridge’s parole tape on the erence (1975), Izatt, 534 P.2d (3) misquoted argued the status; its to base jury is entitled held that we closing tape recording in contents description full and on a accurate decision arguments. criminal concerning the whole events of the ruling that Subsequent to the court’s act. (1)Defense object counsel failed good victim’s character com- evidence statements now prosecution’s made, inadmissible, at differ- reference was Furthermore, nothing find of. we plained trial, points during the to the victim’s ent following penalty, conviction of the death being acquainted some of her well with majority opinion observed that jury. The extending credit customers and her habit of determine if “requires us to I.C. 19-2827 § of the customers in times of finan- to some dispro- imposed is excessive or sentence clearly rele- testimony cial need. This imposed in similar portionate to sentence credibility vant to establish the of the testi- P.2d at 404. Idaho at cases.” 105 mony prosecution witnesses Chilton statutory majority’s response i.e., familiarity the vic- Leyden, their expedient of declar- simple mandate was tim and her habits. Our review involv- ing “our of similar cases review error resulted. persuades record us that no necessarily limit- penalty the death while does not lack of such cases ... by ed record, reviewing and After the entire any particular exces- presence of reveal analyzing arguments presented, we particu- disproportionality in this siveness or prejudicial error. hold that there was no 908,674 at 404.5 Idaho at P.2d lar case.” 105 The and sentence are affirmed. conviction reminded one majority had to be The cases, BAKES, C.J., dissenting opinions and of two and JOHNSON BOYLE, JJ., recent, concur. should have been—but then which review, in that name- were not—considered BISTLINE, Justice, concurring in 4, ly, Major, 105 Idaho 665 P.2d State v. part dissenting. and and, course, (1983), of State v. Bain- bridge, which was then before us and The Court undertook its review of State Rowett, by Judge undecided other than Sivak, 900, v. 105 Idaho 674 P.2d 396 imposed impris- a sentence of life (1983), who had argument when oral was heard on 1, 1983, Major Bainbridge, onment. both be- February the briefs of counsel cases, having degree dis- perused been received and earlier. first murder were opinion The of the Court in compared Sivak was cussed and for the bene- Sivak August released rehearing 911-17, majority fit of the at 105 Idaho was denied on December 1983. The majority, for P.2d 407-413. The whatever majority opinion at 105 Idaho 674 P.2d reason, obdurately ignoring continued gives Bainbridge, mention to Randall those recent and similar murder con- two saying in paragraph one short that Bain- sentences, disparate victions and which bridge and persons Sivak were identified as presently may problem for the attor- be present at the murder scene and that the general ongoing in federal ney Sivak’s together two had been seen before corpus proceedings. So much court habeas killing.4 after the Today is on for our focus Bain- Sivak. ef- although Bainbridge cannot be Although argument bridge, the Court heard oral 13,1984, January opin- considering fectively in on the final without Si- Sivak reviewed therewith, being not released until March 1985. ion was the two vak connection appeal in arising The records on the two cases were companion out of the same cases a file in this Court at about the same time. charges on first resultant de- homicide and upheld imposition majority Sivak definitely There some gree murder. (1985), for explain the court declared it had read majority opinion which did not 4. The accordingly charged jointly making statutorily enlightenment man- been two had trial. Each been codefendants at would have Some of the proportionality review. dated representing counsel. Counsel degree had different string not first in that cases cited against Judge disqualification Bainbridge filed a charge only the cases. One involved murder Newhouse, preside in continued to who Robert proceedings Recently murder. with intent to commit assault charge against against Sivak. questioned the validi- member of the Court one Judge Robert M. was tried with obviously-not-re- ty rote citation of of such presiding. Rowett cases, many preceded older of which viewed sentencing. capital non-jury involvement opinion page is a of the Sivak On the same Lankford, 781 P.2d 197 116 Idaho State (1989). string of cases found in citations reference thought. same entertained that I have Creech, P.2d 463 State instance, Judge (2) Bainbridge For previous inter-relation. New- no has conviction murder, sentencing any tape house at Sivak’s for the crime of or crime of utilized prior His property violence. offenses are transcript and/or of an “interview” related. conducted two skilled offi- cers, absolutely hearsay being ap- when (3) Although Bainbridge oppor- had the Sivak, plied against who neither tunity encouragement of Sivak to present nor represented. major- The Sivak so, Bainbridge himself do did not inflict ity approved, convincingly. but not threatening on death wounds the victim. (4) Bainbridge majority opinion propensity has the Sivak found that criminals, manipulated being and used the evidence before the trial court was although participated has he would d(6) than finding more sufficient to sustain unlikely perpetrate be initiate such decision, Judge sentencing Newhouse’s are, course, crimes on his own. There “that the defendant his code- dominates cases, findings find- other in both but the fendant, responsible primarily and is for all ings particularized uniquely are above 105 Idaho at P.2d occurred.” in proceedings concern at the second trial at 402. The Bain- codefendant Randall which followed on reversal bridge, Signifi- separately who was tried. amply conviction. The record first also findings by Judge cant made Rowett finding sustains a that intel- considering mitigating factors in Bain- average, lectual level was below another bridge’s case these: given thorough con- important factor to be (a) previous no Defendant has convic- understanding in how he easily sideration murder, any tion for the crime of or Likewise, giv- manipulated by Sivak. prior crime of violence. His offenses are intelligence his low and the en ease with property related. manipulated, any he which is reasonable (b) pro- Defendant has demonstrated a person would take dim view of the con- a pensity being manipulated and used seizing Bain- duct of two officers criminals; although partici- he other and home, his bridge, interrogating him at and crimes, pated in he be un- these would taking continuing interrogate him after likely perpetrate or such too, initiate This, to their offices. him own Sivak, 917, crimes on his own. at P.2d found 105 Idaho 674 (Bistline, dissenting). legit- 413 It is at J. (c) opportunity Although he had the there, responsive imately to the that encouragement of co-defen- majority’s up- statement where Sivak so, himself to do did not dant defendant sentencing, holding findings the Sivak on any threatening inflict death wounds upheld district court’s uti- majority the victim. in-depth lization interview [Bain- “[a]n Judge P.2d 409. 105 Idaho at 674 at conducted, in- and was bridge which] imposing upon reason for Rowett’s presentence report.” cluded [Sivak] a sentence death Sivak, 674 P.2d at 402. 105 Idaho at circumstances, mitigating finding “that analyzed dis- “interview” was and This did not himself particularly that defendant 917, 674 413. at 105 P.2d cussed threatening to the deliver death blows was in fact a This so-called “interview” victim, gravity aggra- outweigh the interrogation, stringent lengthy and make vating here so as to circumstances interrogation type custodial exactly that penalty of the death unjust imposition today analyzes McDevitt which Justice 105 674 defendant.” Idaho at on this He con- impermissibly conducted. holds find- Extrapolating 410. from the P.2d years ago, cludes, I than six as did more judges ings of the district who became two offi- “seized” that all of the homi- well-acquainted with facets essentially held just Not seized but cers. that: cide, judicially determined it has been ma- lengthy and subjected prisoner notwithstanding interrogations, (1)Sivak nipulative dominates did that he not want protestations all responsible for that occurred. primarily construc taking physically first of one or talk with the officers until he could detaining him, attorney, proba- custody to an to his tively talk and also into challenge tion officer. There should be no ‘free causing deprivation a of one’s thus holding McDevitt’s the sei- Miranda to Justice ‘significant way.’ dom’ a Bainbridge’s person Arizona, zure of was consum- 436, 444, U.S. 86 S.Ct. 1602 mated the officers’ intentional conduct. [1612], It involves 16 L.Ed.2d 694 meaningful possible It is not a draw liberty interruption a real of one’s arresting distinction between a movement, detention. as a result of such seizing person. per- either event that States, 98, 103, Henry v. United liberty his busi- go son is not at about (1959); [171], 4 L.Ed.2d 134 80 S.Ct. 168 Amend- pleases. ness as he The Fourth States, Moran v. United 404 F.2d of the United ment Constitution Williams, People Cir.1968); (10th guarantees people will be States 837, 840, 290 N.Y.S.2d 56 Misc.2d persons against in their unreason- secure Sobel, Seizure,’ p. (1968); & ‘Search person is able searches and seizures. A meaning Fourth ‘seized’ within Accordingly, essentially there are two by police Amendment when is accosted The first elements to a technical arrest. restrains to walk officer who his freedom element is an accused ‘individu- such Ohio, Terry v. away. 392 U.S. being human as the al’ —a involved —is 1868,1877, (1968): 20 L.Ed.2d S.Ct. action, generic subject of the and not the suggestion is some in the use of There legal definition ‘person,’ which under “stop” such terms as and “frisk” may corporation include [P.L. pur- such conduct is outside 10.00(7)]. Secondly, there must be § of the Fourth because view Amendment present a ‘seizure’ such individual. As neither action the level of a rises to defined, means es- hereinabove that term mean- “search” or “seizure” within the subjugation to restraint sentially the Constitution____ quite It is ing of the to custody submission accused of plain gov- Amendment Fourth Long individual. v. Ansell [69 F.2d 386 do person erns “seizures” which of ], supra; United States v. (D.C.Cir.1934) in trip not eventuate a to the station Bonanno, supra; Terry, v. State 5 Ohio prosecution house and crime —“ar- for 114, 122,127-128, 214 N.E.2d App.2d 119 It terminology. in traditional rests” 1093, (1966); 39 L.Rev. 1096 N.Y.U. po- a recognized must be that whenever lice accosts individual and an officer People Corp., v. P.A.J. Theater 72 Misc.2d away, he restrains his to walk freedom 354, 152, (emphasis N.Y.S.2d 155 add- 339 that person. has “seized” is ed). Anyone an arrest a knows that added). Id. (Emphasis person arrested seizure. A has been who The word ‘arrest’ derived is from than more free to about that a is no move ‘arreter,' stop meaning word to French seized, has been and vice versa. person who stay signifies restraint or of is A without a difference distinction mil depriving his own person, him of may utter- forth with the the officer come People Mirbelle, 276 Ill. liberty. ance, arrest,” in are whereas a “You under Paul, Alter v. (1934); App. dispensed formality is with. seizure 139, 141, 135 Sheriff, App. 101 Ohio Arrest, (1955); mind, agreeing in after N.E.2d 5 C.J. With § extent, 2(b). go I reminds now p. Judge n. Kaufman McDevitt Justice may path ready ‘... the Fourth Amendment has been traveled us that down a which encompassing “seizure” construed as for whom the jurists be two Idaho before individual____’ United States bar, including myself, an have al- of bench Bonanno, (S.D.N.Y. F.Supp. of ways respect had the utmost because 1960). in to statu- criminal cases their adherence princi- ‘seizure’, legal tory requirements and constitutional in under-

The term both First, authored we turn to a decision standing parlance, ples. connotes common by Judge county Towles of the First Judicial Dis- trate in the in the arrest which years ago trict seven which was reversed in made, information, is stating and an LaMere, State v. 103 Idaho P.2d against the charge person must be (1982). The only facts in LaMere are magistrate. laid such I.C. before slightly different from those we have be- 19-615. § in fore us no Bainbridge, and different in requirements As notifying to the of person regard being to a arrested rather counsel, right of his defendant seized, here, than or vise As versa. provides Code Section 19-853 circumstance, initially LaMere part follows: as crime, charged not with a but was at a person being who is detained a If deprived 5:00 a.m. “arrested” and thus officer, law or who enforcement liberty questioned. his so that he could be charge having under formal commit- rights by LaMere was read his Miranda ted, being or is under a con- detained printed officers but handed a form. He crime, repre- serious viction a is not questioned by different officers and condi- attorney sented under put Later, p.m., in a cell. 4:35 at he was person having a tions which own brought interrogated. out and further He rep- counsel would be entitled to be so transported by the officers from Kel- resented, Idaho, Wallace, Idaho, the law logg, a distance enforcement officers concerned, miles, finally upon of de- arraigned of some eleven commencement p.m. Bainbridge tention, court, at 5:05 was first confined upon or the formal home, there, questioned his own (1) charge, may as the case be shall: police then taken car for a drive clearly right him inform police headquarters where was further needy right counsel and of interrogated, interrogated. just Not but person represented by be an attor- pumped suggestions full of officer as (2) if ney public expense; and advantages cooperating. person charged or does not detained similarity attorney, public notify Another between LaMere and have an concerned, tape was the officers’ use of trial court defender machines, recording be, the on/off switches may is not so case that he suppressing which controlled. represented.... from LaMere under statements obtained conditions, Judge laid out the

those Towles (e) given un- Information procedures officers are law on the which (1) only der if: this section effective required apply: recorded; writing is or it in otherwise that the failure to Defendant contends (2) acknowledgement of he records 19-853(e) comply with I.C. invalidates § or, if he receipt receipt, time of and by the defendant the statements made acknowledgment, make this refuses to 23rd, police on October custody in while giving information person the the furthermore, delay and the in tak- gave the information records that Magistrate the a ing defendant before person refused and the informed that 19- violation Idaho Code Section in of it; acknowledge (3) material and the 5(a) Rule de- 615 and Idaho Criminal (2) (1) is filed so under and recorded necessary the prive such statements of court next concerned. with the by the required constitu- voluntariness I.C. Contrary the United to the State’s contention tion and statutes States of any pertains this state. defen- clearly and 19-853 § dant, not, of needy or and is one whether warnings by Miranda. the mandated is made without a When an arrest adds an additional The Idaho statute peace a by private a officer or warrant and requirement the case to Miranda must, person the arrested with- the that designed to ensure the taken unnecessary delay, be out before fact the proved well as magis- be warning accessible could nearest most the understanding by acknowledgment and secured, to be the arrest evidence needed the accomplished. not should have been defendant.

This lends credence defendant’s argument delay the the As to the the statement taken from for purpose obtaining a statement more p.m., defendant at or about 4:35 on Octo- of reason, any than other and cannot 23rd, 1978, apparent ber it is the for a clear be condoned the Court as Warning acknowledgement Miranda and police duty violation the warning on the contained officer present accused a neutral taped tape of statement and that the before ’ Magistrate and detached such filed statement was with the Court forthwith. day question Monday was a and sup- next concerned at the the time of open and available. the Court was pression hearing. therefore concludes Court However, certainly it be more would defen- statement volunteered preferable for written Miranda Warn- booking dant at the of the initial time acknowledged to be in accordance suppressed, not be the viola- would but support statute to further tion I.C. 19-853 would invalidate § voluntariness of such statement. The subsequent interrogation the de- original by the Police interview Chief of by the Police and Wadsworth, course, and did fendant Chief Offi- Officer Wadsworth, taking the delay cer comply statutory require- with the Magistrate result, in any fashion, ment and as a defendant before taped finding would dictate a suppressed. such statement must be p.m. was interview at not volun- 4:35 question The next serious involves the tary part defendant, on the delay arrest presenting between the hence, may not be used the time of arraign- Magistrate to a matter for trial. ment. 874-75, LaMere, 103 Idaho at State The voluntary character of a confes (1982)(appendix opinion of P.2d at 81-82 prior arraignment sion obtained Bistline, J., concurring part dissent- placed doubt when there is an un added). (emphasis ing) delay reasonable between arrest however, arraignment, confession law, Bainbridge’s rights put- under Idaho is not per se inadmissible. State questions, ting were vi- aside constitutional Wyman, 97 Idaho 486 P.2d 531 [547 far To olated more than were LaMere’s. (1976)].6 him, in- person, manipulate seize a so delay terrogate him arraignment, As to the it all the while he should when magistrate imper- opinion no taken before a Court’s there was be missible, delay highly prejudicial, nor it- and tainted the reasonable excuse was the ensuing interrogations If had self officer matter where reasonable. —no defendant, probable to arrest The case here is also reminis- cause conducted. Monroe, probable he also had sufficient cause cent of State v. (1980),

present Magistrate the facts to a P.2d 1036 vacated (1981), 3001, a of Arrest and to S.Ct. 69 L.Ed.2d 385 issuance of Warrant bond, required Magistrate ap- if it intervention the Su- permit the fix where Therefore, States to deter propriate. preme the excuse that Court of the United allowing such of gath- from tactics busy the officers were too or were this Court setting. interrogation in coercive State ering evidence and therefore a additional 129, Monroe, 645 P.2d 363 not the 103 Idaho could taken the defendant before (1982). Bain- reasonable view Magistrate, If further credible. Judge acknowledges the of Justice paragraph Towles found views This the existence comport holding, wholly be with Idaho statu- Wyman unac- Bakes to more in which was Bakes, requirements joined by tory than Justice law and constitutional ceptable to Justice seen, majority. shortly Wyman McQuade. views of the be it is obvious As will bridge’s conviction based on tainted evi-

dence cannot be allowed to stand. high, When stakes are this judgment magis- detached of a neutral

That which Justice Bakes wrote dis- trate is if essential the Fourth Amend- 486, sent in Wyman, State v. 97 Idaho meaningful (1976), protec- ment is to furnish applies glove P.2d 531 like a to a tion considering manipulative hand in from unfounded interference with ex- ploitation Bainbridge. liberty. Accordingly, He wrote careful- we hold that ly in applying prevailing statutory requires law the Fourth Amendment a holdings and constitutional to the facts be- judicial probable determination fore the Court: prerequisite cause as a to extended liberty following restraint on arrest. defendant was not taken forthwith magistrate before a after he taken [emphasis 420 U.S. at 95 S.Ct. at 863 custody into at 3:00 a.m. Instead he was original]. alternately questioned or confined a Thus, while the officers were hours, following cell for the sixteen certainly justified taking the defen- formally which time he was then arrest- custody, pro- dant into the defendant’s presented mag- ed. He was not before a being brought longed detention without then, either, approxi- istrate but waited magistrate was a violation before mately another hours he was before 19-615, rights under I.C.R. I.C. § Thus, I brought magistrate. before and the Fourth Amendment although think it is clear that the defen- Constitution the United States. formally dant had not been arrested opinion recognizes violation majority this p.m., 7:00 December he had before been under arrest since 3:00 a.m. that police for ‘to com- and scolds the failure ply 19-615 and rule with I.C. I.C.R. § morning, and under the terms of the 5(a).’ statute and the rule he was entitled to be brought magistrate, before a whose purpose of I.C.R. 5 and of the 5(d) duty under I.C.R. would have been prevent ar- Fourth Amendment is to proba- to determine whether there was being restee from held in an extended ble cause to believe that the defendant confinement____ illegal The arrestee’s crime, and to advise had committed a right Fourth constitutional under the rights provide defendant hearing probable Amendment to a cause counsel to advise him con- him with sei- following a arrest warrantless [or cerning rights. those if protected cannot be the admissi- zure] Furthermore, had a defendant giv- arrestee has bility of statements the the Fourth Amendment right under during illegal confinement which en States to the Constitution United illegal product of the confinement are a brought judicial be before officer against Fifth Amend- solely is tested probable whether there was determine The United ment’s test of voluntariness. cause to believe that he had committed Court, Supreme we are re- States which right explained in This an offense. follow, chosen not to evalu- quired to has Pugh, case of the recent Gerstein Amendment of Fourth ate violations 103, 95 S.Ct. 43 L.Ed.2d 54 of voluntari- rights purely on basis (1975). Illinois, 422 U.S. ness. Brown v. By 45 L.Ed.2d 416 S.Ct. arrested, the defendant is wheth [O]nce admissibility of statements analyzing the not, mistake or officer has made a er the sole- during an detention taken unlawful requires Amendment the Fourth Fifth ly in terms of the arrestee’s magistrate. taken before a defendant be interests, majority has Amendment Furthermore, re our rule and statute questions critical to consider the failed complaint and a quire that it be done before us. and ‘without unneces filed ‘forthwith’ sary delay.’ ment____ Illinois, showing And the burden of supra],

In the Su- Brown [v. rests, course, preme admissibility Court of the United States held of on the warnings not a that the Miranda prosecution. taken

cure-all which made statements 603-04, at 2261-61 U.S. at S.Ct. following illegal an arrest seizure] [or omitted). (footnotes Brown, admissible into evidence. the appli- I should be believe the same rule Supreme of char- Court the United States during an extended cable confinement holding in acterized the lower court the arrest without a warrant following an following manner: the arrestee has whenever [or seizure] court, words, appears The other magistrate brought not been before warnings have held that the Miranda unnecessary delay and would without the and of themselves broke causal holding adopt Commonwealth subsequent chain so that state- Futch, Pa. 290 A.2d 417 ment, continu- even one induced custody, effects of unconstitutional appropriate think it to follow [W]e as, long in the tradi- was admissible so approach evi- federal and exclude all sense, voluntary and not tional it was during ‘unnecessary dence obtained coerced violation of the Fifth and except no delay’ that which ... has Fourteenth Amendments. relationship delay reasonable U.S. at 95 S.Ct. at whatsoever. then on hold that a Court went 290 A.2d at 419. confession statement obtained exploitation illegal an arrest sei- [or interroga- agree lengthy I no cannot merely is not admissible because zure] place. took tions defendant warning it a Miranda and a follows regularly interrogated 5:00 a.m. from rights. waiver Miranda p.m. Saturday morning to Satur- 4:30 warnings, Miranda alone and [T]he He had not eaten or day afternoon. se, per always cannot make the act slept nearly twenty hours before sufficiently product free will to questioning began, did not eat or break, pur- for Fourth Amendment sleep during the next twelve hours over poses, the causal connection between interrogated. The record which he was illegality They and the confession. at the indicates that he was bereaved every cannot assure case Diggs, loss of an intimate friend for June Fourth Amendment violation has not He had consumed five beers years. five unduly exploited. been whiskey and three or four shots of on an shooting. empty prior to the stomach reject per

While we therefore se appellant was in no condition appear rule which the Illinois courts intelligent waiver knowing make a adopt accepted, have we also decline to rights easily could be intimi- of dated any rule____ per alternative se or “but for” situation____ I think it in such a warnings The Miranda are is clear as matter law factor, sure, in de- important to be give defendant did not his statements termining confession is whether the knowing intelligent waiver of after a illegal by exploitation of an obtained rights. I believe the case Com- only But are not arrest. Eiland, 450 Pa. monwealth v. temporal considered. The factor to be (1973), majority has which the A.2d proximity of the arrest [seizure] opinion, points to cited in footnote 9 of its confession, presence of inter- in this which we should reach the result circumstances, and, vening particu- ... case. larly, purpose flagrancy emphasized that when Court has misconduct are all rele- [T]his the official vant____ voluntariness questions The voluntariness of the “[t]he passed beyond physical require- is a threshold area have statement stage coercion much more inherently the circumstances were dif area psychological coercion coercing, and his waiver was not know- ficult a analysis ... close of all the surround ing intelligent. Accordingly, and I ing necessary.” circumstances is would hold that his written statements Commonwealth ex rel. Butler v. Run tape recorded oral statements dle, (1968)], Pa. 239 A.2d 426 [429 were inadmissible. any involuntary that “the test for For all of I these reasons would remand confession, must concern itself with a Wyman, for new trial. at 496- impinging upon those elements de a (Bakes, J., at P.2d 541-546 dissent- fendant’s will.” Commonwealth v. added). ing) (emphasis Baity, 428 Pa. 315 n. A.2d reviewing When circumstances n. 7 Thus the in Bainbridge in light seizure of of the exten- stant case we must weigh all applicable by sive discussion of law made influencing appellant’s will factors Towles, Judge Justice Bakes and much of at the time he made his statement. which is in accord with that which Justice The record evinces uncontradicted ev written, abundantly McDevitt has it clear is appellant, 20-year-old idence that seized, only not but education, grade with a tenth iso period held the officers for an inordinate time; periods lated for several during interrogated they of time which him upon interrogation his initial he re will, inherently subjected at him to fused to admit involvement equally coercive tactics. It is clear from shooting; that eleven hours later record that did make intelli- he an when told he get would gent knowing waiver of constitu- more lenient treatment if confess no rights, tional and that officers made ed, incriminating he signed an state attempt ascertaining that he at understood ment; arraigned and that he was not rights printed set on form out twenty-five until some hours ar after they which caused him to initial. rest. Rating manipulation to which Bain- The combination all these factors bridge exposed twice on a scale of one based on the Commonwealth’s uncon- ten, rating giving of one would Sivak tradicted evidence constituted a subtle ten. the officers to a entitle powerful but nonetheless im- form of ig- statutory purposefully law was permissible psychological coer- nored, requirements of and constitutional cion____ appellant’s We conclude that Supreme might as the United States Court signed involuntary and statement was not been written. officers well have sup- should therefore been have alternately implicitly threatened pressed. promises attempting out and held added). (emphasis A.2d at 654-655 “cooperation.” Had dis- obtain his reasoning Pennsylvania as the dained such tactics and treated him At the applicable in this case. Court require the Constitution Idaho statutes of his arrest the defendant was time demands, there no reason to believe that in a possibly state of intoxi- bereaved yet prevailed in obtain- they could not have cation; questioned and refused to he was from him which would ing statement shooting; any connection with the admit present had been establish Sivak story told his first he was then murder site and administered wanted; he truth was a lie and that the death-dealing wounds. intermittently questioned over was then Mr. Bainbridge, Stewart Counsel for during time he period hour which a ten Morris, Court with provided has also sleep up gone without food had clois- of the seizure and excellent account was not a thirty hours. The defendant Bainbridge, interpos- interrogation of tered familiar with the tech- habitual arrestee law as noted applicable it with the knowledgeable niques questioning Towles, and, Judge factors, all Justice Bakes and rights. Given these easy prey any manip- him for and all today, Excerpts Justice McDevitt. from made exploitations. ulative Not an iota of Appendix that brief are attached as A. Bainbridge having thought given is also Having agreed with what Justice McDev- like to talk to made known that would regarding itt has written the seizure and attorney. interrogation Bainbridge, much of the of I suppress- The trial court’s reason for not that, agree am unable to on consideration evidence, my pointed as out in scenario, totality of entire 273, 299, opinion, I 108 Idaho Bainbridge illegal causal connection between the sei- 335, (1985), “clearly 698 P.2d 461 was acquisition zure and the evidence has notwithstand- predicated on the basis that Majority Op. p. 235. The been broken. counsel, ing request to have States, quote Wong from Sun United it right, waived that and that 407, 417, thereafter 371 U.S. 83 S.Ct. 9 intelligently knowingly a waiver was (1963), prin- L.Ed.2d which follows that equivocal ruling made.” The trial court’s ciple inapplicable simply is here because immediately preceding the set out “exploitation illegality” manip- in the foregoing: ulation of never ceased. Therefore, accepting even the testimo- McDevitt, point, at inserts Justice Bainbridge, made an ny of Mr. he at best opinion paragraphs into his three from equivocal request for counsel. The Illinois, Brown v. 99 S.Ct. primarily that he record indicates (1979), L.Ed.2d 824 the same having parole his officer desirous Brown which Justice Bakes discussed in attorney if present, only wanted an Wyman opinion. read One cannot parole He officer couldn’t be there. it, disregard disregard Brown and right clearly assert a to counsel did not 883 F.2d 1407 George, United States R., p. prior to that interview on the 8th. (9th Cir.1989), reasonably come to the long conclusion that the officers’ and calcu- I, 698 P.2d at 108 Idaho delay producing Bainbridge’s pa- lated presented 461. The trial court was thus role officer so that the two of them could opportunity declare Bain- with the (with private police tape converse incredible, bridge’s testimony maybe or said) recording recorder all that was officers, just weighty not as that of two significant dis- the “additional factor that opt for that but to the court’s credit did not tinguishes the circumstances of the case easy way out. from Brown.” written, I am Justice McDevitt has Totally incomprehensible my mind is agree, properly warning Bain- quick goes far majority opinion even so bridge his fifth amendment/Miranda nothing quoted amiss in the state- as to see pure rights itself sufficient to stage ments the officers as set the impermissible “seizure.” the taint of the “private Those remarks not for the visit.” supposed “significant factor” all Nor is upon only telling have a effect Bain- would significant. The arrival of and utiliza- bridge, parole on the officer as well. but parole officers of the offi- tion the two put out of mind in the Unmentioned hoax, of a all done cer has all the earmarks opinion any of the majority consideration had expense at the of a who been bringing parole officer long delay in seized, period illegally kept for an extended together Bainbridge, and the lack custody, denied on his of time in close not, explanation, for the any reasonable wanting expression the aid of an attor- Equally missing any disclaimer delay. illegally subjected to continued ney, and parole officer and the two officers by the excep- interrogation by professionals with them there was no discussion between “In the ef- ability. tional order to assure prosecution would required by as to what best counsel as fective assistance of Equally Amendment, pro- “private come out of the visit.” the state should the Sixth time majority opinion is that counsel at the earliest feasible not discussed vide custody.” into capacity the accused -is taken Bainbridge’s diminished mental after Wutkrich, State v. 787 P.2d 252 P.2d In the Matter ESTATE OF ASHE, Esther aka Esther F. If justice system the criminal in Idaho is Ashe, Deceased. to be respect, accorded measure of integrity system can only be main- ASHE, Plaintiff-appellant, Sam giving by finally

tained here this defendant a fair trial. Hurt, HURT, Jack R. Michael Allen L. A APPENDIX Hurt, Hurt, Hurt, L. Brett Adam W. being Their intention interview Hurt, Hurt, Timothy Kevin L. individu- murder, Appellant about the Kil detective als; Schiller, and E. James his ca- leen placed had notification pacity Representative as Personal rights/waiver notebook, form in his Ashe, deceased, the Estate of Esther brought Appellant’s him it with into house. Defendants-respondents. Appellant presented with rights/waiver form, requested to com No. 17554.

plete sign form so that the detec Supreme Apparently tives talk to him. Court of Idaho. could at that time, subsequent as in his interro well 6, 1990. Feb. gations building at the law enforcement following evening day, Appel rights lant’s neither read nor ex

plained verbally by himto the officers. proposed interrogee

Simply presenting a rights requesting form and him to sign

initial and it was the detective’s stan procedure advising pro

dard for both suspect’s

curing waiver of a Miranda (See,

rights. example, the bottom of

page top page Transcript interrogation, Appellant’s 4/9/81 where Appellant: ‘Okay, why

Killeen tells your rights you

don’t take this and read initial, go just you did ahead and like Also,

yesterday.’ Pfeiffer testified that he

simply Appellant ‘complete asked the PTH,*

rights Tr., P. form’ at the house.

52). time, Appellant

At refused form,

sign indicating rights that he did

not want to talk to the detectives at that (Tr., VI, 1017,11,1-5) p.

time. Vol. Killeen Appellant

testified that indicated him, talk to ‘probably’

would but wanted (Tr., first. parole

talk officer Vol. 1-7; Tr., PTH, VI, p. p.

14-25). hearing. suppression

*The

Case Details

Case Name: State v. Bainbridge

Court Name: Idaho Supreme Court

Date Published: Feb 5, 1990

Citation: 787 P.2d 231

Docket Number: 16808

Court Abbreviation: Idaho