TERENCE B. TEKOH v. COUNTY OF LOS ANGELES; DENNIS STANGELAND, Sergeant; CARLOS VEGA, Deputy; LOS ANGELES COUNTY SHERIFF‘S DEPARTMENT; DOES, 1 TO 10
No. 18-56414
United States Court of Appeals for the Ninth Circuit
January 15, 2021
D.C. No. 2:16-cv-07297-GW-SK. Appeal from the United States District Court for the Central District of California, George H. Wu, District Judge, Presiding. Argued and Submitted April 27, 2020, Pasadena, California.
Opinion by Judge Wardlaw; Before: Kim McLane Wardlaw, Mary H. Murguia, and Eric D. Miller, Circuit Judges.
SUMMARY*
Civil Rights
The panel vacated the district court‘s judgment on a jury‘s verdict, reversed the district court‘s judgment as to plaintiff‘s requested jury instruction, and remanded for a new trial in an action alleging, in part, that plaintiff‘s Fifth Amendment right against self-incrimination was violated when his un-Mirandized statement was used against him at his criminal trial.
The district court concluded that the use of the statement alone was insufficient to demonstrate a violation of the right against self-incrimination and, instead, instructed the jury that the plaintiff had to show that the interrogation that procured the statement was unconstitutionally coercive under the totality of the circumstances, with the Miranda violation only one factor to be considered.
The panel held that in light of the Supreme Court‘s decision in Dickerson v. United States, 530 U.S. 428 (2000), which held that Miranda is a rule of constitutional law that could not be overruled by congressional action, where the un-Mirandized statement has been used against the defendant in the prosecution‘s case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under
The panel held that the district court erred interpreting Chavez v. Martinez, 538 U.S. 760 (2003), to stand for the proposition that a
The panel held that while the question of liability was ultimately for the jury to decide, plaintiff sufficiently demonstrated a Fifth Amendment violation caused by Los Angeles Sheriff‘s Deputy Carlos Vega under
The panel stated that it was not holding that taking an un-Mirandized statement always gives rise to a
Finally, the panel could not conclude that it was more probable than not that the jury would have reached the same verdict had it been properly instructed. Accordingly, the error was not harmless. The panel thus vacated the judgment on the jury‘s verdict and remanded the case for a new trial in which the jury must be properly instructed that the introduction of a defendant‘s un-Mirandized statement at his criminal trial during the prosecution‘s case in chief alone is sufficient to establish a Fifth Amendment violation.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.
COUNSEL
Paul Hoffman (argued) and John Washington, Schonbrun Seplow Harris & Hoffman LLP, Hermosa Beach, California; John Burton and Matt Sahak, Law Offices of John Burton, Pasadena, California; for Plaintiff-Appellant.
Antonio K. Kizzie (argued) and Rickey Ivie, Ivie McNeill & Wyatt, Los Angeles, California, for Defendants-Appellees.
WARDLAW, Circuit Judge:
We must decide whether the use of an un-Mirandized statement against a defendant in a criminal case is alone sufficient to support a
I.
A.
Terence Tekoh was working at a Los Angeles medical center when a patient accused him of sexual assault. According to the patient, Tekoh lifted her coversheets and made sexual contact while transporting her within the hospital. Hospital staff reported the allegation to the Los Angeles Sheriff‘s Department. Deputy Carlos Vega responded to investigate.
Deputy Vega found Tekoh in the MRI section, where he worked transporting patients to and from their MRIs and their rooms, and the two went into a nearby, private room to talk. Though Deputy Vega questioned Tekoh, he did not advise him of his Miranda rights. By the end of the questioning, Tekoh had written the following statement:
To who [sic] it may concern,
This is an honest and regrettable apology from me about what happened a few hours ago. It was I don‘t know what suddenly came over me, but it was certainly the most weakest moment I‘ve ever been caught up with in my life. I‘ve never ever found myself doing such a despicable act. and I am I don‘t think this is an excuse but I‘m single and currently don‘t have a girlfriend and became very excited after I first saw her vagina accidently. So after dropping her off, I decided to go further by woking [sic] and spreading her vagina lip for a quick view and then went back to my duty post with the intention of masturbating, which I never did.
How Tekoh came to write this statement is hotly disputed and was the focus of the
1. Tekoh‘s Account of the Questioning
In Tekoh‘s telling, when Deputy Vega first approached him, Vega asked if there was somewhere they could speak in private. Tekoh‘s co-workers suggested the MRI “reading room,” a small, windowless, and soundproof room used by doctors to read MRIs. When one of Tekoh‘s co-workers tried to accompany Tekoh into the reading room, Deputy Vega stopped her and told her the interview was private.
Deputy Vega shut the door and stood in front of it, blocking Tekoh‘s path to the exit. He then accused Tekoh of touching the patient‘s vagina. Tekoh adamantly denied the allegation. After about 35 to 40 minutes of questioning during which Tekoh refused to confess, Deputy Vega told him (falsely) that the assault had been captured on video so he might as well admit to it. Still, Tekoh did not confess.
Tekoh then asked to speak to a lawyer, but Deputy Vega ignored the request. At
I made one or two steps, and [Deputy Vega] rushed at me and stepped on my toes, put his hand on his gun and said, “Mr. Jungle Nigger trying to be smart with me. You make any funny move, you‘re going to regret it. I‘m about to put your black ass where it belongs, about to hand you over to deportation services, and you and your entire family will be rounded up and sent back to the jungle . . . . Trust me, I have the power to do it.”
According to Tekoh, this outburst left him “shaking” and triggered flashbacks to his experiences with police brutality in Cameroon, where he was from.
Deputy Vega then grabbed a pen and paper, put them in front of Tekoh, and told him to “write what the patient said [he] did.” When Tekoh hesitated, Vega put his hand on his gun and said he was not joking. According to Tekoh, Vega then dictated the content of the written confession and Tekoh, who was scared and “ready to write whatever [Vega] wanted,” acquiesced and wrote the statement down.
2. Deputy Vega‘s Account of the Questioning
Deputy Vega testified to a much different version of events. According to Vega, when he first arrived at the MRI section, he asked Tekoh what had happened with the patient, and Tekoh said, “I made a mistake.” Tekoh asked if he could “talk to [Vega] away from [his] co-workers and get a little privacy.”
After the two went into the MRI reading room, Vega handed Tekoh a sheet of paper and said, “Can you write what happened while I get my sergeant and we can ask you a couple of questions[?]” According to Vega, Tekoh then wrote out the confession himself without further prompting.
Another officer, Sergeant Stangeland, arrived soon after, joining Deputy Vega in the room with Tekoh. According to Stangeland, Tekoh indicated that he was willing to talk to the officers. Deputy Vega then questioned Tekoh in “a very conversational tone,” and Tekoh verbally admitted to touching the patient‘s vagina. Sergeant Stangeland testified that Tekoh‘s demeanor was “that of a man who was contrite, who truly, you know, regretted what he had done.”
B.
Tekoh was arrested and charged in California state court with unlawful sexual penetration in violation of
C.
After his acquittal on the criminal charge, Tekoh filed this action under
Before the first trial in this case, Tekoh asked the district court to instruct the jury that it should find in his favor on the Fifth
The district court refused to instruct the jury on Tekoh‘s theory, reasoning that the Supreme Court‘s plurality decision in Chavez v. Martinez, 538 U.S. 760 (2003), held that Miranda was a mere “prophylactic rule,” rather than a “constitutional requirement,” and that a
After the trial, however, the district court concluded that it had erred by instructing the jury to evaluate Tekoh‘s claim as if it were brought under the Fourteenth Amendment instead of as a violation of the Fifth Amendment. See Hall v. City of Los Angeles, 697 F.3d 1059, 1068–69 (9th Cir. 2012) (holding that a coerced confession claim must be brought under the Fifth Amendment, not as a Fourteenth Amendment fabrication-of-evidence claim). It therefore ordered a new trial on the coerced confession claim.
The jury instructions were again contested. Ultimately, the district court gave the jury the following instruction on coerced confessions:
You must consider the objective totality of all the surrounding circumstances. Whether a confession is improperly coerced or compelled depends on the details of the interrogation.
Factors to consider include, but are not limited to:
(1) The location where the questioning took place (for example at a police station or on a public street), and whether the location was chosen by the person or the officer;
(2) Was the person free to go or was the person under arrest or physically restrained;
(3) Was the length of the questioning oppressive;
(4) What Plaintiff was told at the beginning of the encounter and throughout its duration;
(5) The manner in which the person was questioned—for example: was any actual force or infliction of pain used on the person; was the person (or anyone near or dear to him or her) threatened either physically or psychologically; was the officer‘s gun drawn; did the officer continually shout at the suspect for an extended period; etc.
(6) If the warnings under the Miranda decision (as described below)
were required at the time, whether the police advised the person being questioned of his or her right to remain silent and to have a counsel present during the custodial interrogation; and (7) Any other factors that a reasonable person would find coercive under the circumstances.
Again, the jury returned a verdict in favor of Deputy Vega.2 Tekoh timely appeals.
II.
We have jurisdiction under
III.
Under
A.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.”
Miranda marked a significant shift in how courts evaluate the admissibility of confessions. Before Miranda, “voluntariness vel non was the touchstone of admissibility.” Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring). In determining whether a confession could be admitted in criminal proceedings, courts looked to “the totality of all the surrounding circumstances” to determine “whether [the] defendant‘s will was overborne.” Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). After Miranda, however, an officer‘s failure to provide the requisite Miranda warnings or to obtain a valid waiver of the suspect‘s Miranda rights is generally enough, on its own, to “require[] exclusion of any statements obtained.”5 Missouri v. Seibert, 542 U.S. 600, 608 (2004).
In the decades following Miranda, there was significant debate about the extent to which Miranda warnings were constitutionally required. On the one hand, the Miranda opinion itself appeared to contemplate that statements taken from a defendant who was in custody but had not been given Miranda warnings were inherently compelled, and thus obtained in violation of the Fifth Amendment. See Miranda, 384 U.S. at 458 (“Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.“); see also Dickerson, 530 U.S. at 447 (Scalia, J., dissenting) (acknowledging that the “fairest reading” of Miranda is that the use of un-Mirandized statements at trial “violates the Constitution“). And Miranda involved proceedings in state courts, over which the Supreme Court lacks plenary supervisory control. See Smith v. Phillips, 455 U.S. 209, 221 (1982) (“Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.“).
On the other hand, the Miranda decision left open the possibility that the specific warnings set out in the opinion might not be necessary if the states or Congress devised other adequate means of protecting against “the inherent compulsions of the interrogation process.” 384 U.S. at 467. And more significantly, in several decisions, the Court described Miranda warnings as mere “prophylactic rules” or “procedural safeguards” that were “not themselves rights protected by the Constitution.” New York v. Quarles, 467 U.S. 649, 653–55 (1984); Michigan v. Tucker, 417 U.S. 433, 444 (1974); see also Oregon v. Elstad, 470 U.S. 298, 306 (1985) (“The Miranda exclusionary rule . . . sweeps more broadly than the Fifth Amendment itself.“).
The issue came to a head in Dickerson v. United States. Dickerson concerned a federal statute, enacted in the wake of the Court‘s Miranda decision, that provided that confessions were admissible as long as they were voluntarily made, regardless of whether Miranda warnings had been
Dickerson strongly supports Tekoh‘s argument that a plaintiff may bring a
B.
This clear view of the constitutional nature of Miranda warnings was later muddied by United States v. Patane, 542 U.S. 630 (2004), and Chavez v. Martinez, 538 U.S. 760 (2003). In Patane, the Court held, in a fractured decision, that the Constitution did not require suppression of physical evidence found as a result of an interrogation that violated Miranda—i.e., the “physical fruits” of a Miranda violation. 542 U.S. at 633-34. Writing for the four-Justice plurality, Justice Thomas described the Miranda rule as “sweep[ing] beyond the actual protections of the Self-Incrimination Clause.” Id. at 639. He further concluded that a constitutional violation based on a failure to give Miranda warnings could not occur, if at all, until the unwarned statements were admitted at trial, at which point the exclusion of the statements themselves would be a “complete and sufficient remedy” for the violation. Id. at 641-42 (quoting Chavez, 538 U.S. at 790 (Kennedy, J., concurring)). However, Justice Kennedy, joined by Justice O‘Connor, concurred in the judgment on narrower grounds, holding only that the suppression of physical evidence was not required by the Fifth Amendment because it “does not run the risk of admitting into trial an accused‘s coerced incriminating statements against himself.” Id. at 645 (Kennedy, J., concurring). Neither justice joined the plurality‘s broader discussion of Miranda
Previously, in Chavez, the Supreme Court had confronted the question of whether a plaintiff could sue under
Specifically, Justice Thomas‘s plurality opinion in Chavez concluded that a “criminal case” requires, at the very least, “the initiation of legal proceedings,” and that because no proceedings had been brought against the plaintiff, he had not suffered a Fifth Amendment violation. 538 U.S. at 766. Having reached this conclusion, which alone was enough to resolve the case, the plurality nevertheless continued on to discuss Miranda. Citing Elstad, Tucker and other pre-Dickerson cases, the plurality characterized the requirement of Miranda warnings as a “prophylactic rule[] designed to safeguard the core constitutional right protected by the Self-Incrimination Clause,” id. at 770, repeating the points made by Justice Scalia, whose dissent in Dickerson was joined by Justice Thomas. 530 U.S. at 447 (Scalia, J., dissenting). The Chavez plurality explained that violations of “judicially crafted prophylactic rules do not violate the constitutional rights of any person” and therefore “cannot be grounds for a
The specific holding in Chavez does not govern Tekoh‘s case because unlike the plaintiff in Chavez, Tekoh‘s un-Mirandized statements were used against him in criminal proceedings. But the district court read Chavez to stand for the broader proposition that a
The district court went astray by doing so. In United States v. Davis, 825 F.3d 1014 (9th Cir. 2016), our court, sitting en banc, examined the question of what rule our court was bound to apply when construing fractured Supreme Court decisions. Addressing the guidelines laid out in Marks v. United States, 430 U.S. 188, 193 (1977), we held that a fractured Supreme Court decision “only bind[s] the federal courts of appeal when a majority of the Justices agree upon a single underlying rationale and one opinion can reasonably be described as a logical subset of the other. When no single rationale commands a majority of the Court, only the specific result is binding on lower federal courts.” Davis, 825 F.3d at 1021–22. In sum, we concluded that ”Marks instructs us to consider the opinions only of ‘those Members who concurred in the judgments on the narrowest grounds’ when deriving a rule from a fractured Supreme Court decision.” Id. at 1024 (quoting Marks, 430 U.S. at 193).
Applying Davis to Patane is straightforward. Even though Justice Thomas‘s plurality opinion spoke broadly about the relationship between Miranda and the Fifth Amendment, Justice Kennedy‘s concurring opinion was both necessary to the judgment and narrowly focused on the distinction between physical evidence and un-Mirandized statements. Patane, 542 U.S. at 633–45. Critically, Justice Kennedy‘s opinion did not echo the
While applying Davis to Chavez is less straightforward, we conclude that none of the six opinions provides a binding rationale. See Stoot v. City of Everett, 582 F.3d 910, 923 (9th Cir. 2009). Justice Thomas‘s plurality opinion, which reasoned in dicta that damages were unavailable for Miranda violations, did not command support from five Justices and was based on a rationale significantly broader than those of the concurring Justices. See Marks, 430 U.S. at 193. Thus, contrary to the district court‘s conclusion, the broad principles in Justice Thomas‘s opinion are not binding here.
None of the other opinions in Chavez articulates a principle directly applicable to the facts presented here. Justice Kennedy‘s opinion was a dissent on the Fifth Amendment claim because he would have affirmed, while the plurality opinion reversed. 538 U.S. at 799.6 And while Justice Kennedy‘s concurring opinion suggests that exclusion “is a complete and sufficient remedy” for Miranda violations, it assumes that the exclusion of “unwarned statements” is available as a remedy. 538 U.S. at 790 (Kennedy, J., concurring). Justice Kennedy‘s opinion thus does not speak to Tekoh‘s plight, where exclusion is not available as a remedy because the un-Mirandized statements were already used against him in his criminal trial. Exclusion, here, is neither complete nor sufficient.
On the other hand, Justice Souter‘s concurring opinion, joined by Justice Breyer, expressly noted that “[t]he question whether the absence of Miranda warnings may be a basis for a
“When, [as in Chavez], no ‘common denominator of the Court‘s reasoning’ exists, we are bound only by [and only apply] the ‘specific result.‘” Davis, 825 F.3d at 1028. Here, the “specific result” from Chavez does not and cannot apply to Tekoh‘s particular circumstances because his un-Mirandized statement was admitted in his criminal trial, obviating exclusion as a remedy. Under our holding in Davis, Justice Thomas‘s plurality in Chavez therefore cannot control. Thus, we are left with Dickerson for guidance, which, as previously discussed, leads us to conclude that the use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment and may support a
Our own decisions post-Patane and Chavez further support this conclusion. In Stoot, we held that plaintiffs could bring a
Several of our sister circuits have also distinguished Chavez, agreeing that the use of statements obtained in violation of the Fifth Amendment against a defendant at his criminal trial may give rise to a
We therefore also reject the Eighth Circuit‘s approach in Hannon v. Sanner, in which the court interpreted Dickerson together with Chavez to hold that a Miranda violation cannot form the basis of a
C.
To hold Deputy Vega liable under
There is also no question that Deputy Vega “caused” the introduction of the statements at Tekoh‘s criminal trial even though Vega himself was not the prosecutor. In Stoot, we held that a plaintiff may assert a Fifth Amendment violation against the officer who interrogated him and then included the coerced statements in the police report. 582 F.3d at 926. We explained that “government officials, like other defendants, are generally responsible for the ‘natural’ or ‘reasonably foreseeable’ consequences of their actions.” Id. (quoting Higazy v. Templeton, 505 F.3d 161, 175 (2d Cir. 2007)). Joining other circuits, we held that, absent unusual circumstances, such as evidence that the officer “attempted to prevent the use of the allegedly incriminating statements . . . or that he never turned the statements over to the prosecutor in the first place,” id. at 926 (quoting McKinley v. City of Mansfield, 404 F.3d 418, 439 (6th Cir. 2005)), a police officer who elicits incriminating statements from a criminal suspect can reasonably foresee that the statements will be used against the suspect in a criminal case, id. (citing Higazy, 505 F.3d at 177); see also id. at 927 (“[O]rdinarily, ‘in actions brought under
Similarly, here, although it was the prosecutors who used Tekoh‘s statements at his criminal trial, it was Deputy Vega who interrogated Tekoh, prepared the incident report, and personally signed the probable cause declaration. In those documents, Vega stated that Tekoh was a suspect, that he arrested Tekoh for the charge of “Sexual Penetration by Foreign Object,” and that Tekoh‘s incriminating statements were the basis for the report and the probable cause determination. As a result, a jury could infer that the subsequent introduction of the statements in Tekoh‘s criminal trial was the reasonably foreseeable consequence of Deputy Vega‘s conduct. See Stoot, 582 F.3d at 926 (“[A] jury could infer that the subsequent uses of the statements to file criminal charges against [the suspect] and to set conditions for his release at arraignment were reasonably foreseeable consequences of [the interrogating officer‘s] conduct.“).
We do not hold that taking an un-Mirandized statement always gives rise to a
D.
Therefore, the district court erred by giving the coerced confession instruction, rather than instructing on the Miranda violation alone.11 The giving of solely the coerced confession instruction was not harmless. “[W]e ‘presume prejudice where civil trial error is concerned.‘” Clem, 566 F.3d at 1182 (quoting Dang, 422 F.3d at 811). Deputy Vega bears the burden of demonstrating “that it is more probable than not that the jury would have reached the same verdict had it been properly instructed.” Id. Deputy Vega has not met that burden.
First, to establish a Miranda violation, Tekoh need only demonstrate that he was “in custody” when he was questioned by Deputy Vega without Miranda warnings. Miranda, 384 U.S. at 445. The district court instead required Tekoh to prove “that the confession or statement was improperly coerced and not voluntary” and that Vega “acted intentionally in obtaining that coerced confession or statement,“—a more difficult showing that effectively added two elements to Tekoh‘s claim. We have previously recognized that when a court improperly requires an extra element for a plaintiff‘s burden of proof, the error is unlikely to be harmless. Clem, 566 F.3d at 1182 (quoting Caballero v. City of Concord, 956 F.2d 204, 207 (9th Cir. 1992)).
Second, we cannot presume that the jury would have found that Tekoh was not in custody if it had been properly instructed on Tekoh‘s Miranda claim. As Deputy Vega concedes, whether Tekoh was in custody involved a disputed question of fact that turned on “credibility determinations that an appellate court is in no position to make.” Caballero, 956 F.2d at 207; see also id. (“In reviewing a civil jury instruction for harmless error, the prevailing party is not entitled to have disputed factual questions resolved in his favor[.]“).
Furthermore, we simply do not—and cannot—know what the jury found as to the question of custody. The district court erroneously instructed the jury to assess whether Tekoh was coerced under a totality-of-the-circumstances test, under which the Miranda violation was one of seven factors. Thus, it was entirely possible for the jury to find that Tekoh was in custody for Miranda violation purposes, but still ultimately conclude that Deputy Vega‘s questioning did not rise to the level of coercion—a significantly higher standard. See, e.g., Pollard v. Galaza, 290 F.3d 1030, 1035 (9th Cir. 2002) (holding that the detective‘s
Therefore, we cannot conclude “that it is more probable than not that the jury would have reached the same verdict had it been properly instructed.” Clem, 566 F.3d at 1182 (citation omitted). Because we do not believe that Deputy Vega has made such a showing, the error was not harmless. We thus vacate the judgment on the jury‘s verdict and remand the case for a new trial, in which the jury must be properly instructed that the introduction of a defendant‘s un-Mirandized statement at his criminal trial during the prosecution‘s case in chief alone is sufficient to establish a Fifth Amendment violation.
IV.
Because we remand for a new trial, we need not reach the question of whether the district court abused its discretion by excluding the testimony of Tekoh‘s coerced confession expert, Dr. Blandon-Gitlin. On remand, we leave it to the district court to consider whether the expert should be permitted to testify given the questions that remain.
V.
We vacate the judgment on the jury‘s verdict, reverse the district court‘s judgment as to Tekoh‘s requested jury instruction, and remand the case for a new trial, in which the jury must be properly instructed that the introduction of a defendant‘s un-Mirandized statement at his criminal trial during the prosecution‘s case in chief is alone sufficient to establish a Fifth Amendment violation and give rise to a
VACATED; REVERSED AND REMANDED