STATE OF HAWAII v. GEORGE MORITO KITASHIRO
No. 4380
STATE OF HAWAII
DECEMBER 2, 1964
47 Haw. 204
TSUKIYAMA, C.J., CASSIDY, WIRTZ, LEWIS AND MIZUHA, JJ.
This is аn appeal by George Morito Kitashiro, one of two codefendants charged with larceny first degree, i.e., the theft of an automobile belonging to Theodore T.
Defendant contends that his confession was the product of an unlawful search and seizure, an unlawful arrest, and an unlawful delay between his arrest and production before a magistrate,1 each of which ipso facto requires the exclusion of the confession from evidence, according to defendant‘s argument.
The trial court found that an illegal search and seizure had occurred. The legality of the search and seizure is not before us. However, the State contends that the confession was not tainted by the illegal search and seizure. This was but one of the surrounding circumstances having to do with the ultimate question of voluntariness, likewise the lawfulness or unlawfulness of defendant‘s arrest and detention were only circumstances bearing on the ultimate question of voluntariness, according to the State‘s contention.
The evidence showed that Kawamura‘s car was stolen on November 13, 1962, and recovered the next morning at 9:15 A.M. at which time it had been stripped of many parts and was inoperable.
Returning to the scene with the police he found Otake still cleaning the transmission in the driveway. Upon questioning by the police Otake admitted the transmission was stolen. At this time Kawamura saw there some dresses his wife had been making, which had been in the stolen car.
While the police were at Otake‘s residence a car drove up containing two juveniles besides the driver. Otake had implicated one “Smokey,” who turned out to be the driver. One of the juvenile passengers implicated defendant. This informer, whom we have referred to as “M,”2 took the police to defendant‘s residence and to where his car was parked on the University campus. At both places, according to the trial court‘s holding, there occurred illegal searches and seizures of automobile parts stripped from Kawamura‘s automobile. Prior to the trial, on defendant‘s motion, the court suppressed the use as evidence of any of the automobile parts so recovered. See
After recovering the stolen parts from defendant‘s
After defendant‘s arrest at his homе he was taken to the police station in a car containing two police officers, one of whom could not recall whether anything was mentioned to defendant at the time about the automobile parts. The other, Officer Ragsdale, testified as to the conversation on the way to the police station:
“Q. In your conversation with George, did you mention the fact that you had taken certain automobile parts from his home?
“A. I think I did.
“Q. Did you also tell him that since you had the parts, he might as well confess?
“A. Not that way. I told him I had the parts—‘You may as well tell the truth as to what happened‘—because at the time he was very quiet. I asked him a question and he didn‘t say anything; so I just said, ‘Let‘s tell the truth. What happened?’
“Q. But you did mention the fact that you had the automobile parts?
“A. I imagine I did.”
Defendant testified:
“Mr. Naito: Now, at the time of your arrest at your residence, did the officer mention anything to you about any automobile parts?
“Witness: Well, I heard someone say that ‘we have the parts already.’
“Q. (By Mr. Naito) Did they tell you where they got the parts?
“A. Yes. From the garage closet.
“Q. And this—was this told to you?
“A. Yes, I think so.
“Q. Did the officer say anything about making a confession beсause he had the parts?
“A. While we were riding down to the police station.
* * * * *
“Q. Do you recall how many times he told you that they had the parts so you had to confess?
“A. Yes—no, I don‘t remember exactly how much, but they told me quite a few times.
“Q. They kept repeating it, is that correct?
(Witness nodding.)”
Defendant arrived at the police station at 3:15 or 3:30 P.M. and was booked, along with others. At this point Officer Kasparovitch of the Detective Bureau, to whom the case had been assigned, saw him for the first time. However, Officer Kasparovitch interrogated Otake before defendant, interrupting this interrogation briefly to arrest defendant for the second time and place him in another interrogation room. At that time, Officer Kasparovitch saw defendant‘s father as well as defendant. The father was with defendant in the interrogation room for ten or fifteen minutes. The father told defendant that on his lawyer‘s advice he should not say anything.
Defendant was not questioned until 7:10 in the evening. Meanwhile he remained in the interrogation room.
According to Officer Kasparovitch, when he first went into the interrogation room where defendant was waiting the following occurred:
“* * * I asked him if he wanted to eat. He said no, he wanted to get it off his chest and continue. And I said, ‘Did your father talk to you about your attorney not wanting you to say anything to me?’ And he said, ‘Yes, but I want to get it off my chest and I want to talk about it.’ So I said, ‘Okay, let me have your story.‘”
Defendant then gave Officer Kasparovitch an oral statement, following which a stenographic statement was taken, commencing at 8:00 P.M. At approximately 8:30 P.M. defendant was taken to the cell block, the taking of the stenographic statement having been concluded. The next morning, at 8:00, Officer Kasparovitch took down to the prosecutor‘s office a complaint which had been typed out the night before. Defendant was permitted to leave the police station about noon.
Officer Kasparovitch testified that though he knew certain auto parts had been recovered at defendant‘s home he only questioned defendant about the parts he took and made no statement about the parts found at his residence. Defendant testified, to the contrary, that when Officer Kasparovitch came into the interrogation room: “He told me, ‘Are you ready to confess?’ He told me, ‘You might as well. We have the parts.‘” Defendant further testified:
“Q. Why did you say you were ready to confess?
“A. Because I felt that I wasn‘t—there wasn‘t anything I could do.
* * * * *
“Mr. Naito: Now, you stated that you confessed
because you felt that they had the parts; so you felt you might as well tell? “Witness: Yes.
“Q. (By Mr. Naito) Now, was this the only basis for your confession?
“A. Yes.”
I
It is settled law in this jurisdiction that: “A confession otherwise shown to have been voluntary is not rendered inadmissible by the fact that its author was under arrest or in custody at the time, even though the arrest or custody may have been under invalid process or without any process or legal right.” Territory v. Young and Nozawa, 37 Haw. 189, 197, aff‘d, 163 F.2d 490 (9th Cir. 1947). Defendant contends that, under Wong Sun v. United States, 371 U.S. 471 (1963), this rule no longer obtains because the
Defendant‘s contention is without merit. As stated in Wong Sun: “The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion,” and “matters observed [or overheard] during an unlawful invasion * * *.” Wong Sun extended this rule to “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in the present case * * *” (371 U.S. at 485). In Wong Sun, federal officers without probable cause broke open a door and followed defendant into his living quarters, where he was placed under arrest and at that time
The federal courts have had occasion to pass on the contention here made that a confession following an illegal arrest is ipso facto inadmissible under Wong Sun. Prior to that decision they followed the same rule as has been followed in Hawaii in a case of illegal arrest. The contention that Wong Sun has eliminated the question of voluntariness in such a case was rejected in Rogers v. United States, 330 F.2d 535, 540-42 (5th Cir.); Hollingsworth v. United States, 321 F.2d 342, 350-51 (10th Cir.); Burke v. United States, 328 F.2d 399, 402-03 (1st Cir.), affirming 215 F. Supp. 508, 511. But see Gatlin v. United States, 326 F.2d 666, 672 (D.C. Cir.). State cases decided since Wong Sun also apply the voluntariness test. State v. Keating, 61 Wash. 2d 452, 378 P.2d 703; Prescoe v. State, 231 Md. 486, 191 A.2d 226; People v. Freeland, 32 Cal. Rptr. 132.
Here the trial court found that even if one of the two arrests of defendant was illegal the other was not, and that defendant had decided to confess after talking to his father and after being told by his father to follow his lawyer‘s advice and say nothing. Defendant was not arrested, even on the first occasion, until after he had talked with his father. The oppressive circumstances present in Wong Sun are entirely lacking. As in Rogers v. United States, supra, 330 F.2d 535, there was approximately a three-hour interval between the arrest and the confession, during which defendant was not under interrogation and was free to assay his position. Wong Sun is inapplicable even if the arrest was unlawful, a point not decided.3
What has been referred to above as the second line of authority (Upshaw v. United States, supra, Mallory v. United States, supra) commonly is referred to as the McNabb-Mallory rule.4 This court repeatedly has held that the McNabb-Mallory rule does not apply in the courts of this State. Territory v. Aquino, 43 Haw. 347, 368-76; State v. Evans, 45 Haw. 622, 635, 372 P.2d 365, 375; State v. Shon, 47 Haw. 158, 165-67, 385 P.2d 830, 835-36. The Court of Appeals for the Ninth Circuit so held in Palakiko v. Harper, 209 F.2d 75, 94. Defendant concedes that the McNabb-Mallory rule is without constitutional basis, unless Wong Sun anchored it on the
The McNabb-Mallory rule is a federal rule, based on the Supreme Court‘s supervisory powers over federal criminal prosecutions. It is confined to cases of unlawful delay between arrest and arraignment before a United States Commissioner. Under the rule a confession during such unlawful delay ipso facto is inadmissible. As seen,
After this case was argued, Escobedo v. Illinois, 378 U.S. 478 (June 22, 1964), was decided. Escobedo, who had been arrested, interrogated and released pursuant to a writ of habeas corpus obtained by his lawyer, again was picked up about ten days later between 8:00 and 9:00 P.M., after he had been implicated by one subsequently made a codefendant. He was held in custody and interrogated, but repeatedly asked to see his lawyer. Finally, when confronted by his accuser, he implicated himself by saying “I didn‘t shoot Manuel, you did it,” and thereafter made further admissions. His statement was taken by an assistant state attorney. Meanwhile, his retained lawyer repeatedly sought to see his client from 9:30 or 10:00 P.M. to approximately 1:00 A.M., but succeeded only in making his presence at the Homicide Bureau known at one point when a door to the office where defendant was held was open.
In an extension of Massiah v. United States, 377 U.S. 201 (May 18, 1964), the Court held in Escobedo:
“* * * The fact that many confessions are obtained during this period [between arrest and indictmеnt] points up its critical nature as a ‘stage when legal aid and advice’ are surely needed. * * * (p. 488).
* * * * *
“We hold, therefore, that where, as here, the in-
vestigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied ‘the Assistance of Counsel’ in violation of the Sixth Amendment to the Constitution as ‘made obligatory upon the States by theFourteenth Amendment ,’ Gideon v. Wainwright, 372 U.S. [335], at 342, and that no statement elicited by the police during the interrogation may be used against him at a criminal trial. (pp. 490-491).* * * * *
“Nothing we have said today affects the powers of the police to investigate ‘an unsolved crime,’ Spano v. New York, 360 U.S. 315, 327 (Stewart, J., concurring), by gathering information from witnesses and by other ‘proper investigative efforts.’ Haynes v. Washington, 373 U.S. 503, 519. We hold only that when the process shifts from investigatory to accusatory—when its focus is on the accused and its purpose is to elicit a confession—our adversary system begins to operate, and, under the circumstances here, the accused must be permitted to consult with his lawyer.” (p. 492).
While Escobedo marks a shift in course, upon comparison with Crooker v. California, 357 U.S. 433, Cicenia v. Lagay, 357 U.S. 504, Culombe v. Connecticut, 367 U.S. 568, and Haynes v. Washington, supra, 373 U.S. 503, the point pertinent here is that emphasis was put upon the right to counsel. The McNabb-Mallory rule was not extended to
The adoption of
Defendant contends that “both arrests were arrests in the fullest sense and not arrests for investigatory purpose.” However, irrespective of the lawfulness or unlawfulness of the arrests and subsequent detention, under the rule applicable in this jurisdiction it is decisive of this branch of the case that the confession plainly was voluntary5 and there was no denial of the right to counsel.
II
Was the court‘s decision that unlawful searches and seizures had occurred sufficiently implemented by the court‘s rulings?6 Under the
“* * * It may be that Hall‘s incriminating statements were induced by the search which Hall must have realized the police were determined to make
without bothering to ask his permission and which he must have known, as the District Court stated, would disclose damaging evidence.”
Here it is undisputed that at the time of defendant‘s arrest, or shortly thereafter on the way to the police station, defendant was told that the police had the automobile parts and he might as well “tell the truth.” Thus the illegally seized automobile parts were used to instill in defendant a realization of the hopelessness of his situation. He was left to meditate on it for about three hours, while the corrosive properties of the poison so instilled had their intended effect. We cannot agree with the State‘s contention that during this interval the taint of the illegal search and seizure became dissipated.
We must ask ourselves what induced defendant‘s confession. Defendant testified that it was because he felt there wasn‘t anything he could do. He directly attributed his confession to the police having the parts. He testified that while he was told others had confessed and had implicated him, this was not until after he had said he was ready to confess. Officer Kasparovitch, the interrоgating officer, testified that at about 6:38 P.M., while interrogating Otake, he brought defendant Kitashiro in, and Otake identified him as the person who helped Otake strip the car. However, on objection by Kitashiro‘s counsel to the admission of this evidence against him, it was confined to Otake‘s case, this being prior to Otake‘s change of plea. Therefore, we cannot consider this evidence in connection with the case before us.
Some evidence was required to rebut the natural and reasonable inference that the statement made by the police concerning the stolen parts taken from defendant‘s home had the intended effect on defendant and did induce his confession as testified by him. While the trial court ruled that “I don‘t believe the defendant when he said that he
The rule we must follow as to the burden of proof was laid down in Nardone v. United States, supra, 308 U.S. 338, 341. That case involved evidence acquired through the use of illegal wiretaps. The Court, speaking through Mr. Justice Frankfurter, said:
“* * * Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government‘s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. A sensible way of dealing with such a situation ought to be within the reach of experienced trial judges. The burden is, of course, on the accused in the first instаnce to prove to the trial court‘s satisfaction that wire-tapping was unlawfully employed. Once that is established—as was plainly done here—the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial
portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof had an independent origin.”
As interpreted in the well-reasoned opinion in United States v. Goldstein, 120 F.2d 485, 488 (2d Cir.), affirmed on the ground of lack of standing, sub nom., Goldstein v. United States, 316 U.S. 114:9
“That language cannot indeed serve as a ruling that the prosecution has the burden to show how far its proof has ‘an independent origin,’ but it is consonant with that position and to some extent suggests it. In any event it appears to us that this should be the rule * * * [A]fter the accused had proved that the ‘taps’ had been made and had to some extent been used to break down Messman * * *, the burden fell upon the prosecution to satisfy the district judge that they had no part, or no substantial part, in that result.”
While the outcome of the Goldstein case upon further appeal reduces the above-quoted stаtement to dictum, it nevertheless is helpful dictum. In Costello v. United States, 365 U.S. 265, 278-80, petitioner contended that certain admissions, made before a 1943 New York grand jury as to bootlegging activities during Prohibition, were impelled by the belief that the New York prosecutor already had the answers to the questions from illegal wire-
“The short answer to this contention is that we conclude from the record that his truthful answers to Mr. Hogan‘s questions were not given because he thought that the conversations tapped in 1943 revealed his activities in the Prohibition era, but because he realized that these facts had been known to the authorities for some time. None of Mr. Hogan‘s questions even implies that Mr. Hogan gained his information from the 1943 wiretaps. Mr. Hogan had a transcript of the 1939 federal grand jury minutes of the petitioner‘s appearance before that body. The petitioner presses no argument in this Court that his admissions before that grand jury were infected with wiretapping. Eаrly in Mr. Hogan‘s examination, the petitioner admitted that he recalled being questioned before the grand jury in 1939. The questioning at that proceeding had elicited the petitioner‘s admission of his bootlegging. * * *” (Emphasis added.) (365 U.S. at 278-79).
Here the State made no showing—none we can consider in this case—that defendant‘s confession was impelled by circumstances other than his knowledge that the police had the stolen parts. What showing might be made upon remand of the case need not be speculated upon. The present record is insufficient to permit us to uphold the trial court‘s ruling.10 We do not feel justified
The trial court found, in ruling on this branch of the case, that it was “very important * * * that the father of the defendant talked to his son for not less than 15 minutes, and part of his talk was, ‘Don‘t say anything about this case. Follow whatever your lawyer says.‘” This is a strong factor upholding the voluntariness of the confession, since it shows that defendant had no reason to feel defenseless. But it is in no way inconsistent with the conclusion that he felt his situation was hopeless because the stolen parts had been found in his home, and confessed for that reason.
We takе note of a line of cases in which advice of counsel has been held to insulate a second confession from a first confession excluded under the McNabb-
On the evidence in this record defendant‘s confession should have been excluded altogether. Reversed and remanded for a new trial or other proceedings consistent with this opinion.
Yukio Naito (Shim & Naito of counsel), for defendant-appellant.
Herbert H. Tanigawa, Deputy Prosecuting Attorney, City and County of Honolulu (John H. Peters, Prosecuting Attorney, and Bert S. Tokairin, Deputy Prosecuting Attorney, with him on the briefs) for the State, appellee.
CONCURRING OPINION OF MIZUHA, J.
I join in Part II of the opinion of Lewis, J., and in the judgment of the court. In my opinion there is no occasion to go into the subject matter of Part I.
I concur in Part I of Justice Lewis’ opinion but dissent from the holding of the majority of the court reversing the conviction on the grounds that the defendant‘s confession was tainted and inadmissible by reason of the fact, or of the manner in which, the police officers imparted information to the defendant that they had obtained the parts he had received of the stolen automobile, which parts, upon defendant‘s application, had been excluded from evidence by the trial court as illegally seized in contravention of the
I am unable to agree that there is a sufficient causal connection shown in this record between the automobile parts seized from the garage at the defendant‘s home and the confession he gave to the police to warrant its exclusion on any theory that it was tainted. Further, this court should be bound by the trial court‘s resolution of the issue.
As the majority points out, the rule of evidence upon which the appellant bases his case on the point under consideration was first enunciated in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). That case laid down the rule that the Government may not use derivative evidence produced from following up information obtained by a search and seizure made in contravention of the
There is no question but that the fruit of the poisonous tree rule applies to a confession which directly stems from and is tainted by an unlawful search and seizure. Fahy v. Connecticut, 375 U.S. 85 (1963); State v. Evans, 45 Haw. 622, 372 P.2d 365 (1962). Part and parcel of the rule, however, is the cognate principle that notwithstanding there may have been an unlawful search and seizure, the Government is not precluded from using the facts thus obtained in building its case if it had acquired the same information from an independent source. The exposition of the two facets of the rule is given in the Silverthorne case at p. 392, as follows:
“* * * The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government‘s own wrong cannot be used by it in the way proposed. * * *”
The independent source doctrine permitting the purge of original taint from an illegal search or seizure has become as firmly established as the exclusionary portion of the rule established by the Silverthorne case. And it is well settled that evidence comparable to that discovered or derived from information obtained by an illegal seizure is not per se inadmissible.
Close to home is Warren v. Territory, 9 Cir., 119 F.2d 936 (1941) (decided on appeal from this jurisdiction), in which it is stated at p. 938 on authority of the Silverthorne case that:
“[K]nowledge of facts gained from a proper independent source such as here obtained may be used,
though it also may be obtained from an illegal act.”
Recently, in Wong Sun v. United States, 371 U.S. 471 (1963), it was asserted in respect to the independent source doctrine (at pp. 487-488):
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).”
It can be accepted, as argued, that when primary illegality has been shown, the prosecution has the burden of proving that the controverted evidence had an independent origin or was produced from leads provided by an independent source. See United States v. Goldstein, 2 Cir., 120 F.2d 485, 488 (1941).
In our case, the prosecution definitely sustained the burden imposed on it in that respect. There can be no other conclusion from the evidence but that the police officers had been informed by the defendant‘s confederates, before the officers went to the defendant‘s home on their first visit on November 14, 1962, that the defendant had actively participated in stealing the complainant‘s automobile and that he had received some of the parts subsequently stripped from it.
It is difficult for me to conceive of a simpler situation in which the independent source doctrine could and should operate. Here, the interrogation of defendant, including questioning him relative to the stripping of the automobile and the distribution of the parts, was not “come at by exploitation” of the illegal seizure. It fol-
Defendant‘s claim that his confession was tainted rests on his testimony respecting conversations with a police officer on the way to the police station and with Officer Kasparovitch prior to the latter‘s questioning him at the police station.
In respect to the conversation on the trip to the station, the gist of the defendant‘s testimony, in which tailor-made leading questions of counsel played a prominent part,1 was that an officer told him that the police had the parts from the garage closet, and so he had to confess.
“A * * * I told him I had the parts—‘You may as well tell the truth as to what happened‘—because at that time he was very quiet. I asked him a question and he didn‘t say anything; so I just said, ‘Let‘s tell the truth. What happened?‘”2
At the police station the defendant was held in an interrogation room for about three hours withоut anyone questioning him on the case, while Officer Kasparovitch, who was in charge of the investigation, questioned the other three participants in the theft of the automobile. Each of them implicated the defendant. When that phase of the investigation was completed, Officer Kasparovitch went into the interrogation room in which the defendant had been waiting to question him.
Defendant‘s claim is that Kasparovitch immediately told him he might as well confess as the police had the parts. The defendant concluded by testifying that the only basis for his confession was that he felt the police had the parts and he might as well tell. Defendant‘s full testimony in that respect is as follows:
“Q When Officer Kasparovitch came into the inter-
rogating room, what did he tell you as soon as he came in? “A He told me, ‘Are you ready to confess?’ He told me, ‘You might as well. We have the parts.’
“Q Did he say, ‘You might as well. We have the parts‘?
“A Yes.
“Q Now, what was your response?
“A I said I was ready.
“Q Why did you say you were ready to confess?
“A Because I felt that I wasn‘t—there wasn‘t anything I could do.
“Q Did Officer Kasparovitch tell you that the others had confessed and implicated you?
“A Yes.
“Q When did he tell you this?
“A Within that same time.
* * * * *
“MR. NAITO: When did he tell you that the others had confessed?
“WITNESS: It was after.
“THE COURT: After what?
“WITNESS: It was later on because the first thing he told me was, ‘Are you ready to confess?’
“MR. NAITO: Now, you stated that you cоnfessed because you felt that they had the parts; so you felt you might as well tell?
“WITNESS: Yes.
“Q (By Mr. Naito) Now, was this the only basis for your confession?
“A Yes.”
Kasparovitch‘s testimony is completely at odds with that of the defendant on this major point of the defendant‘s case. The officer testified as follows:
“Q And at that time was his father mentioned in any way?
“A Yes. When I first went in there, I asked if he wanted to eat. He said no, he wanted to get it off his chest and continue. And I said, ‘Did your father talk to you about your attorney not wanting you to say anything to me?’ And he said, ‘Yes, but I want to get it off my chest and I want to talk about it.’ So I said, ‘Okay, let me have your story.’
“Q Then he gave you an oral statement?
“A Then he gave me an oral statement.
* * * * *
“Q After you took this oral statement from Kitashiro, what, if anything, happened?
“A I asked him if he wanted to give me a stenographic statement and he agreed to do so.
“Q Did you take a stenographic statement?
“A Yes, I did.”
Kasparovitch denied he mentioned anything about automobile parts before questioning the defendant.
That the countervailing effect of Kasparovitch‘s testimony on defendant‘s claim was not missed at the trial level is reflected in the questioning of the witness by defendant‘s counsel on cross-examination, as follows:
“Q According to your story, he told yоu he already talked to his father?
“A Yes, sir.
“Q And his father warned him he should talk to a lawyer and not say anything?
“A He told me his father told him not to say anything.
“Q But in spite of that he wanted to make a clean breast of it?
“A Yes, sir.”
Further, the defendant admitted on cross-examination
There are other features in evidence that bear on and should be considered in determining the issue.
Officer Kasparovitch testified that in a brief confrontation of defendant with Otake during the time the officer was questioning Otake, Otake implicated defendant. On objection of defendant, the court ruled that the evidence would be confined to Otake‘s case. The ruling was undoubtedly correct insofar as the hearing on the merits was concerned. However, the court was then also entertaining the motion to suppress the confession. Otake‘s testimony was clearly pertinent to the motion and it should have been admitted against Kitashiro for that limited purpose. While as stated by the majority, we cannot, in view of the ruling, consider the evidence on this appeal, it nevertheless appears to me that other evidence in thе record permits inferring the equivalent of what the rejected evidence tended to prove, namely, that before he was questioned by Kasparovitch, and, for that matter, before he left his home in custody of the police officers, defendant was aware that his part in the theft had been revealed to the police by some of his accomplices.
It is in evidence that when the police officers went to the defendant‘s home on the morning of November 14, 1962, they first met the defendant‘s aunt, and told her of what they had learned prior to that time. The same story was related in turn to a younger woman in the household, and then to the defendant‘s mother over the telephone. On the return of the police to the defendant‘s home in the afternoon, the story was again told to defendant‘s father,3 who then asked for and was given an
Another significant factor to be considered is that the defendant‘s father talked to him again at the police station, and told him to follow counsel‘s advice not to say anything about the case.
Considering all the circumstances in evidence, I can reach no other conclusion than that the illegality of the search and seizure in this case was too thinly connected to the taking by Kasparovitch and the giving by the defendant of the confession in evidence to permit or require a holding that it was tainted. I consequently cannot agree that it can be held as a matter of law that the confession should have been excluded as fruit of the illegally seized articles.
I do not find anything in the cases cited on behalf of appellant which warrants or justifies a reversal of the trial court‘s ruling admitting the confession over the objection under consideration.
While the main authorities relied on by appellant
People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651 (1962), from a factual standpoint, may be distinguished as, in that case, unlike this one, the defendant was directly confronted, when his confession was taken, with a gun and other articles which may have been illegally seized from his room. As is reflected in the quotation from the case set out in the majority opinion, the fact the defendant was confronted with the gun and articles was considered, and properly so, as an important factor in the court‘s ruling. However a highly significant point to be noted is that the court did not hold, even with the confrontation, that the confession would be inadmissible as a matter of law if the seizure was found on remand to have been illegal. More will be said later in that connection.
In Commonwealth v. Spofford, 343 Mass. 703, 180 N.E.2d 673 (1962), the evidence declared inadmissible by the appellate court was obtained only by the lead produced by confronting the defendant with and questioning him on photographs that had been illegally seized from his abode. The evidence was held to be “branded with the original taint” because it was solely by direct use of the illegally seized photographs that the challenged evidence was obtained. The Spofford case, not ours, presents the type of situation where it is proper to declare the derivative evidence an “offshoot” of the illegal seizure.
In Hall v. Warden, 4 Cir., 313 F.2d 483 (1963), as the prevailing opinion here points out, the court treated the question of the admission of defendant‘s confession which might have followed the defendant‘s ascertaining that certain illegally seized articles were in the possession of the police, as one of voluntariness. While it seems to me
I read Costello v. United States, 365 U.S. 265 (1961), as negating rather than supporting appellant‘s contentions. The import of the independent source doctrine and its applicability to this case readily appears from what the court states at pp. 278 and 280:
“The contention that illegal wiretapping precluded reliance upon the petitioner‘s admissions rests primarily upon interrogations by New York County District Attorney Frank Hogan in 1943 when the petitioner appeared before the New York County grand jury and the Official Referee in the Appellate Division. State officers had a tap on the petitioner‘s telephone during several months of 1943. Mr. Hogan made frequent references to the tapped conversations when questioning the petitioner. The petitioner claims that his admissions of bootlegging activities during Prohibition were impelled by the belief that Mr. Hogan had learned from the tapped conversations the information sought by the questions. It is argued that the wiretaps were illegal under our decision in Benanti v. United States, 355 U.S. 96 (1957), and that his admissions were therefore to be excluded from evidence as ‘fruit of the poisonous tree,’ on the reasoning in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920), and Nardone v. United States, 308 U.S. 338 (1939).
* * * * *
“It is true that the 1943 wiretaps prompted the calling of the petitioner before the county grand jury and the Official Referee. But the ‘fruit of the poisonous tree’ doctrine excludes evidence obtained from or as a consequence of lawless official acts, not evidence obtained from an ‘independent source.’ Silverthorne Lumber Co. v. United States, supra, at 392. * * * We are satisfied that any knowledge in Mr. Hogan‘s possession which impelled the petitioner to answer truthfully came from such independent sources and that any connection between the wiretaps and the admissions was too attenuated to require the exclusion of the admissions from evidence.”
I think that an analysis of the pertinent evidence, in light of the authorities, permits only the conclusion that the defendant‘s confession was not a product of nor was it tainted by the illegal seizure. However, even if a different conclusion could be reasoned out from the cold record, as the majority does in independently evaluating the evidence and the inferences to be drawn from it, that would still not warrant a reversal.
The issue presented by appellant‘s claim, asserted on the stand, that the reason he gave the confession was because he “felt that they had the parts,” so he felt he “might as well tell,” was one of fact. As such, it was for the trial court to resolve. This is recognized and accepted by all of the authorities in the field we are now dealing with. The point is clearly brought out in People v. Rodriguez, supra, at p. 654:
“Upon the new trial, therefore, it will be incumbent on the trial court, in connection with the defendant‘s motion to suppress the challenged statements (see
Code Crim. Proc., §§ 813-c ,813-d ,813-e , as added byL.1962, ch. 954, § 1), to hold a hearing in advance of the trial and decide the issues presented, namely, whether there was an illegal search and seizure and, if there was, whether Rodriguez’ confession was induced by confrоntation with the illegally obtained articles.”
Similarly in Fahy v. Connecticut, supra, the remand put the issue back to the trial court to decide, the Supreme Court stating, at pp. 90-91:
“* * * But the defendants were not allowed to pursue the illegal search and seizure inquiry at trial, because, at the time of trial, the exclusionary rule was not applied in Connecticut state courts.4 Thus petitioner was unable to claim at trial that the illegally seized evidence induced his admissions and confession. * * * Thus petitioner should have had a chance to show that his admissions were induced by being confronted with the illegally seized evidence.”
In Nardone v. United States, supra, it is said at p. 341:
“* * * Sophisticated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government‘s proof. As a matter of good sense, however, such connection may have become so attenuated as to dissipate the taint. A sensible way of dealing with such a situation—fair to the intendment of
§ 605 , but fair also to the purposes of the criminal law—ought to be within the reach of experienced trial judges. * * *” (Emphasis added.)
It was vitаl to the appellant‘s case that his testimony be given credence, which the trial judge did not do. Instead, the judge expressly stated that he did not believe the defendant and that he did believe Kasparovitch. We are therefore confronted with a situation which calls for
As a result of weighing the evidence and determining the credibility of the witnesses, with the benefit we do not have of observing them on the stand, the trial judge found that appellant‘s claim was not substantiated. He expressly declared: “I don‘t believe the defendant when he said that he confessed because they had the goods.” What was said in United States v. Goldstein, supra, referred to in the prevailing opinion, is therefore particularly pertinent. The аpplication of the fundamental principle governing the scope of appellate review of factual findings that should be adhered to in this case is there exemplified by the court‘s statement, at p. 488: “However, if the judge had affirmatively found that the ‘taps’ contributed nothing to this result, we should not have disturbed the finding.” Cf., Davis v. United States, 328 U.S. 582, 593 (1946); Burke v. United States, 1 Cir., 328 F.2d 399, 402-403 (1964).
In my opinion the experienced trial judge‘s ultimate finding of fact on the issue herein covered rests upon substantial evidence and warrants the recognition and acceptance which Goldstein indicates it should be given. With all deference, it appears to me that the majority‘s failure to do so is a departure from the established standard governing appellate review of findings of fact.
I would affirm the conviction.
Notes
“MR. NAITO [defense counsel]: Now, at the time of your arrest at your residence, did the officer mention anything to you about any automobile parts?
“WITNESS: Well, I heard someone say that ‘we have the parts already.’
“Q (By Mr. Naito) Did they tell you where they got the parts?
“A Yes. From the garage closet.
“Q And this—was this told to you?
“A Yes, I think so.
“Q Did the officer say anything about making a confession because he had the parts?
“A While we were riding down to the police station.
“Q While you were riding in the automobile going down to the police station?
“A Yes.
“Q Which officer said that to you?
“A I don‘t remember.
“Q Was there a general conversation going on in the automobile regarding this case?
“A Yes.”
Officer Ragsdale‘s testimony respecting his conversation with the father at the home on the afternoon of the arrest was as follows:
“A I told him who I was. I identified myself. And he more or less had an idea of the purpose of the police coming to the house.”