United States v. Jody Myesha Orso

28-29, 1984 U.S.C.C.A.N. No. (discussing circumstances

2547, 2574-75 plan’s to a an amendment which

under early retirees would formula

benefit inter suggesting, § 204(g),

violate

аlia, that, under calculated if the benefit is no worse than formula

the amended under unamended calculated

benefit violation). It has

formula, also is no there plan sponsors permitting advantage of plans existing to reexamine flexibility formula that bene- new benefit adopt harm) (or partici- not all at least does

fits

pants. short, the amendment although not enhanced Michael’s have

issue as much benefit periodic retirement

second plan partici- the other it enhanced all

as benefits, off was better with

pants’ been had he would have

amendment than plan. amended the

Riverside Cement circumstances, I am unable these

Under a violation of has been

conclude that there judgment

§ I would affirm the 204(g).

the district court. America, STATES

UNITED

Plaintiff-Appellee, ORSO,

Jody Myesha Defendant-

Appellant. 99-50328.

No. Appeals, Court of

United States

Ninth Circuit. 21, 2001 and Submitted June

Argued Sept.

Filed (argued),

Elizabeth A. Newman Emily Stratton, Uhrig, S. and Maria E. Federal Defender, California, Angeles, Public Los defendant-appellant. for the Ronald L. Cheng (argued), Wendy O. Alejandro Clendening, Mayorkas, Attorney, Angeles, United States Los Cali- fornia, plaintiff-appellee. for the SCHROEDER, Before: CHIEF JUDGE, HUG, KOZINSKI, AND O’SCANNLAIN, KLEINFELD, HAWKINS, MCKEOWN, GOULD, PAEZ, TALLMAN, RAWLINSON, Judges. Circuit O’SCANNLAIN; Opinion by Judge by Judge PAEZ Concurrence robbery. the actual tion unrelated to O’SCANNLAIN, Judge: Circuit ride, Inspector half-way through the About a Mirandized whether We must decide robbery with to discuss the began custody must be suspect in by a confession Galetti, Inspector According Orso. immediately fol- suppressed by admonishing preceded his comments un-Mir- incriminating arguably her lowed proceeded He say anything. not to Orso andized statements. implicating the evidence inform her of Inspector Galetti later robbery. her in the I during that he lied to Orso this admitted mail, Orr, postal a Vicki delivering While a witness to the colloquy, telling her that carrier, by Jody approached was letter have seen robbery thought might that she that Orr Myesha Orso demanded Orso. used, though he knew of no gun a even open keys, arrow used produce her Inspector then in- Galetti such evidence. (“USPS”) col- Postal Service United States statutory that the maximum formed Orso at mailboxes group lection boxes robbery of a letter car- penalty for armed Orr surrendered apartment buildings. He also years incarceration. rier was Orso, on foot. keys to who fled that he did not believe she told her Af- investigation. an began The USPS statutory maxi- a and that the gun, used Anthony Galetti and Inspectors ter USPS robbery of a penalty mum for unarmed information Shawn Tiller obtained that a years, was ten letter carrier they left their cards suspect, made Orso sentence for unarmed rob- more realistic residence, that she call requesting at her responded years. would be five Orso bery responded request to the them. Orso “Oh, years.” by saying, I can do five by telephone. Inspector Tiller spoke with then informed Orso Inspector Galetti thereafter, a war- Shortly federal arrest letter carrier had identified her as that the robbery of a rant issued for Orso response the robber. being than two postal letter carrier. More statement, never stood said she “had Orso later, arrested Redon- months Orso was con- lineup Inspector before.” Galetti on unrelated Beach officers do tinued, actually a explaining that it was Redondo Beach charges and taken to the picked picture of her that the letter carrier arresting offi- Department. Police The told Orso that Inspector out. Galetti then warrant, cers, upon of the federal learning robbery had identi- others involved were they Inspector notified Galetti allowed, point, At Orso fied her. Tiller and Galetti Inspectors holding Orso. me, “Well, it’s if the letter carrier said custody and drove her took into their Orso Inspector Galetti then it must be me.” Inspection Service Office to the Postal that an individual named also told Orso (“office”) to a formal interview. conduct to be the driver Main was believed robbery. Orso car involved in the When placed in the handcuffed and Orso was anybody she did not know indicated that length for the seat of the vehicle back name, Inspector began by that station to the from the the drive appearance, to which Orso describe Main’s office, and 35 min- which took between 25 “Oh, gold-toothed boy.” replied, was not undisputed It is that Orso utes. Miranda rights informed office, asked arrival at the Upon during the car ride. time before or her to inspectors if would allow Inspector drive, two-year daughter. old see her the first 15 minutes of For “proba- her she that he told Tiller testified engaged conversa- inspectors and Orso Indeed, transporting riding could. she made while bly” before the back seat of center, inspec- the car Orso to the detention and before she had been read the Miranda Under Miranda v. daughter. warnings. tors took Orso to see her Arizona, inspectors Soon after the arrived at the (1966), Orso’s unwarned state- Orso, office with a little more suppressed ments must be if they were than ten minutes after she made the state- elicited while she was in custody, and un- car, inspectors read her ments Id. der interrogation. the warnings, and she immedi- appeal, 1602. On the United States con- waived ately rights signing stan- car, custody cedes Orso was in while inspectors form. dard then inter- disputes only whether she was under approximately one a viewed Orso for interrogation.1 hours, fully half during which time she to her in confessed involvement the rob- ‘interrogation’ “[T]he term under bery. Miranda refers not express ques to grand jury A federal a returned one- tioning, any but also to words or actions on with un- charging count indictment Orso (other part the of the than those robbery postal of a armed letter carrier normally custody) attendant to arrest and 2114(a). § violation of 18 U.S.C. Orso ini- that the should know are reasonably tially plea guilty. entered a of not She likely to an incriminating response elicit moved to suppress then both the state- Innis, from the suspect.” 446 U.S. at car ments she made to receiv- (footnote omitted). 100 S.Ct. 1682 During the Miranda ing warnings post- and the ride, the Mi giving the car and without warning statements she made at the office. randa warnings, Inspector engaged Galetti hearing The district court held a on the Orso several minutes of detailed discus and, taking motion after evidence from the her, regarding against sion the evidence Orso, inspectors and denied the motion her, against the witnesses and the statuto respect with to both sets of statements. ry penalties for the crime of which she was a subsequently Orso entered conditional Indeed, suspected. he went so far as to plea, guilty and was sentenced to a term of up make some of the evidence which he prison. timely 37 months in appeals She Inspec said her. against Although existed denying the district court’s order her mo- preceded tor testified that his suppress. tion to by admonishing comments her not to speak, persuaded we are that he should II reasonably likely have known that it was argues respond. that the court district his comments would cause her to by suppress erred to It failing any purpose long statements is hard to see for the 'exculpatory.' 1. The district court denied Orso's to If a statement were in motion made suppress would, course, these statements because it found truly exculpatory fact ''incriminating.” the statements not to be In prosecution." be never used Miranda, however, the Court admonished us (internal quotation marks omit- try "degrees not to discern incrimina- Innis, ted); see also Rhode Island v. noting "protects that the Constitution tion/' the individual from 301 n. being compelled to in- (1980) ("By 'incriminating response' we refer criminate himself in manner....” any response-whether inculpatory or excul- U.S. at 86 S.Ct. 1602. “[N]o distinction patory-that prosecution may seek to intro- inculpatory be drawn between state- trial.”). duce at alleged merely ments and statements to be car, her confession should theless contends that especial- discussion and detailed it was “tainted” suppressed evidence be false statement ly his Orso, surrounding incrimina- Miranda violation to elicit other than in the car.2 Inspector Galet- earlier responses from her. statements ting evidentiary as much ti conceded court; in ex- hearing before district A administering the Mi- delay his

plaining a considered similar The “we wanted warnings, he randa testified: Elstad, Oregon question Miss Orso eventually speak with (1985). L.Ed.2d right that if we Mirandized thought police elicited confession speak might not want to ‍‌​​​​​​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​​‍away that she suspect prior giving him from Accordingly, we hold that Orso with us.” then, after receiv- warnings, inwas interrogation while she under warnings, he ing the Miranda confessed therefore, car, and, the statements she 300-02,105 S.Ct. 1285. time. Id. at second warnings must prior to the Miranda made there, here, as was whether question suppressed. was inadmissible be- the second confession Ill first it was the fruit of the tainted cause the The Court concluded that court confession. argues also the district does poisonous full “fruit of the tree” doctrine suppress her con- by failing to erred operate in Miranda context Although inspec- the not the at the office. fession it in the Fourth way that does rights prior same read Orso Miranda tors confession, Id. at 105 Amendment full Orso none- context.3 receiving to omitted). 488, (citation If requiring Id. at courts to S.Ct. 2. The roots of the doctrine poi- of of suppress as the tainted "fruit” is to be the "fruit the evidence evidence found governmental can be traced suppressed. conduct be id. unlawful sonous tree” it must See States, Lumber Co. v. United to Silverthorne 385, 182, 64 L.Ed. 319 S.Ct. 251 (1920). interesting question to ask 3. It has become an case, Supreme Court ex- the poisonous why, exactly, the "fruit of the tree” exclusionary apply rule tended the operate in the Miranda con- doctrine does not illegal obtained a result of to evidence as way it does in the text in the same Fourth conduct, incriminating evi- but also other was The distinction Amendment context. primary evidence. derived from the dence originally premised the fact that a Miranda on 392, ("The of a at 40 S.Ct. essence id. See a violation of the Constitu- violation was not provision forbidding acquisition of evi- the tion, whereas a Amendment violation Fourth mеrely way that not in a certain is dence 305, Elstad, 470 U.S. at 105 S.Ct. 1285 was. acquired not be used before evidence so shall ("Respondent's that his confession contention all.’’) that it shall not be used at the Court but by earlier failure of the was tainted the recast (emphasis warnings be provide and must Miranda form, enduring holding the "fruit in its more poisonous as- excluded of the tree' as 'fruit doctrine, Wong in Sun poisonous the tree” of a constitutional viola- sumes the existence of States, v. United added)); (emphasis id. at tion.” There, (1963). the Court ex- L.Ed.2d rule, ("The exclusionary how- examining admissibility plained the that when ever, broadly Fifth sweeps more than the subsequent illegal evidence obtained triggered in even Amendment itself. It conduct, examine government must courts Amendment the absence violation.” "whether, pri- granting of Fifth establishment added)); 105 S.Ct. 1285 id. tree”), (i.e., illegality” "poisonous mary the ("If by law offi- errors are made enforcement “by exploi- been evidence has discovered administering prophylactic Mi- in (i.e., cers illegality” the "fruit” of the of that tation tree), procedures, should not breed sufficiently randa "by distin- or instead means consequences as in- purged primary taint.” same irremediable guishable to be is, though untarily 1285. That even the earli- rather than on the “taint” anal- Illinois, er statement from was elicited ysis required by [Brown Miranda, long violation of so as the involuntary (1975)]. was not due earlier statement coercion, to unconstitutional the subse- quent, voluntary, warned statement was Under the analysis Court’s admissible, regard still without to whether Elstad, in determining admissibility the earlier was “tainted” statement. of a defendant’s given statement after (“Though 105 S.Ct. 1285 Mi- warning, the Miranda the court should requires randa the unwarned admis- look first to determine whether suppressed, sion must be the admissibility statement made a defendant before any subsequent statement should turn the Miranda warning actually solely in these circumstances on whether it coerced in violation of [F]ifth (em- knowingly voluntarily made.” was, If it [A]mendment. then the court added)). phasis if Only the unwarned suppress must the evidence unless the involuntary statement was due to unconsti- violation was sufficiently attenuated to tutional coercion could the warned state- permit the use of the under the evidence suppressed ment be as “tainted fruit.” Id. If, standards announced Brown. on (“When hand, the other the prior statement was coerced, actually statement is the time that voluntary in the sense that it was not confessions, passes change between coerced in violation of [F]ifth place interrogations, change and the [A]mendment, though obtained tech- identity of the all interrogators bear on require- nical violation of the Miranda

whether that coercion has carried over into ments, the court should suppress the confession.”). the second given statement after the Miranda decided, Shortly after Elstad was we warning only if the court finds that the confirmed that this was the correct under- subsequent statement not was voluntari- standing of that case: ly made. Supreme Court found the Wauneka, United States v. statement by Elstad to have been volun- (9th Cir.1985); 1439-40 accord United coerced, tary, though not even technical- Wauneka, States v. F.2d 1086-87 ly prophylac- obtained violation of the (9th Cir.1988). Thus, tic of Supreme rule Miranda. the Court reasoned that since there had B no actual been coercion such as to vio- [A]mendment, Nonetheless, late the the argues [F]ifth focus that this un- inquiry concerning the derstanding admissibili- of Elstad is incorrect. She the, ty subsequent of statement argues per- after the that Elstad should be read tо warning subject Miranda should be on whether mit us to her warned confession to subsequent the statement was made the “tainted fruit” if analysis vol- fringement signal the Amendment lo that the distinction set forth in El- of Fifth itself.” added)). (emphasis premise ap- This would stad continues unabated. Id. at ("Our pear to have been undermined Dickerson v. S.Ct. 2326 [Elstad] decision States, 428, 444, simply recognizes United 120 S.Ct. the fact that unreasonable (2000) ("[W]e con- searches under the Fourth Amendment are interrogation clude Miranda announced a constitution- different from unwarned under rule....”). Nonetheless, Amendment.”). al Dickerson seems the Fifth improp- that it is often point out invol wished were rendered unwarned statements coercion, a confession which render police tactics er to unconstitutional untary due by police involuntary. were elicited they if but also sup tactics.” In “improper activity called First, running overriding theme the con makes three theory, Orso port of this is the volun- opinion through the Court’s First, sentence relies on one she tentions. statement. See of the unwarned tariness that, ab must conclude Elstad: “We from 105 S.Ct. 470 U.S. at improper tac deliberately coercive or sent (“In un- an [where circumstances these statement, the initial obtaining tics voluntary], a clearly statement warned an has made suspect mere fact that of thorough administration careful not warrant does unwarned admission cure the warnings serves to compulsion.” 470 presumption of unwarned condition that rendered inadmissible.”); id. at statement Second, triggering argues she (“When initial nor neither S.Ct. 1285 the basis of analysis fruit” on “tainted coerced, little admission is subsequent poli furthers one of the tactics” “improper permitting for justification exists improp in Elstad: deterrence cies cited voluntary probative highly evidence conduct. er to the irretrievably lost to be confession decision she relies on our Finally, 1285. factfinder.”); id. at (9th Cir.1995), Zenon, 69 F.3d 1018 Pope v. (“A Mi- subsequent administration “tactic” we held that wherein giv- who has warnings to a randa “pre interrogation” “pre-lMiranda ] voluntary unwarned statement en a but had cisely what to remove the ordinarily should suffice exempted ‘delib ] mind in when [Elstad precluded admission of in ob conditions improper tactics erately or coercive statement.”); id. at from the ordi earlier statement’ taining the initial (“[T]here presum- are is no warrant subsequent statements nary rule suspect’s fruit’ by a ‘tainted coercive effect where ing not to be measured statement, standard, though are volun tech- inculpatory whether initial Elstad, Miranda, 470 (quoting at 1024 vol- tary.” Id. in of was nically violation 1285). 314, whether, We confront 105 S.Ct. U.S. at The relеvant untary. inquiry in arguments turn. each of Orso’s fact, also was in the second statement made.”). cited sentence voluntarily light of this should be read by Orso from It the one sentence is true that context, from it. overriding divorced ambigu- creates Elstad cited Orso some Second, passages are three other there of the proper formulation ity regarding the Supreme Court which Elstad ap- to Supreme wanted us rule the Court disjunctive language, and each used similar trig- to Supreme If the Court wished ply: clarify that it went on to time the Court upon analysis only fruit” ger the “tainted only police to conduct referring was state- coerced unwarned unconstitutionally involuntary. See a confession rendered ments, been no would have then there (“It 309, S.Ct. 470 U.S. ‍‌​​​​​​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​​‍disjunctive to use a for the Court reason to extension of Miranda is an unwarranted trigger an additional sentence to include to administer the simple failure hold that called category of based on a behavior (cid:127) actual unaccompanied by any context, however, warnings, In “improper tactics.” calculated other circumstances simply coercion or that the Court persuaded arewe 312, 298, 1285, suspect’s ability undermine the to exer- 470 U.S. 105 S.Ct. will, investigato- 222; so taints the cise his “inherently L.Ed.2d coercive free ry process subsequent voluntary police tactics or methods offensive to and informed waiver is ineffective some process due that render the initial ad added); period.”) (emphasis indeterminate involuntary mission and undermine the (“There 312, is a vast id. at suspect’s rights will to invoke his once difference between the direct conse- him,” they are read to id. at quences flowing from coercion of a confes- 84 L.Ed.2d 222. by physical sion violencе or other deliber- Contrary Esquilin’s argument suspect’s ate means calculated to break the there “improper are tactics” that can consequences will the uncertain a presumption compulsion raise with freely ‘guilty given disclosure of a secret’ voluntariness, regard out the Elstad response to an unwarned but noncoer- held that “there is no warrant for case.”) question, (emphasis cive as presuming coercive effect where the sus (“[N]or added); id. at statement, pect’s inculpatory initial inherently police coercive do we condone though technically in violation of Mi process tactics or methods due offensive randa, voluntary.” that render the initial admission involun- tary suspect’s and undermine the will to 84 L.Ed.2d 222. If we read Elstad aas rights invoke his once are read to whole, coherent it follows that “deliber him.”) light of thе ately improper coercive or tactics” are similarly Court’s other uses of not two categories, Esquilin distinct as disjunctive think the language, we most it, simply would have alternative persuasive reading “improper of the tac- descriptions type police conduct passage simply tics” is that the Court initial, suspect’s un render meant to connect conduct to such warned involuntary. statement potential involuntariness of the un- Esquilin, United States v. warned statements. (1st Cir.2000). Finally, we note that other precise ques- circuit to have considered the in full presented tion here is accord with argument Orso’s second likewise fails. reading

our of Elstad: It is true that the Court Elstad cited argument This focuses on some admit- general goal deterring improper “the tedly imprecise language in Elstad while policies conduct” as one of the ignoring emphasis оn volun- Court’s formulating rule. 470 considered when its opinion. Al- throughout tariness the (citing Michi- S.Ct. explicitly though the Court did not de- Tucker, gan v. S.Ct. “deliberately improper fine coercive or (1974)). Nevertheless, the tactics,” it used several more detailed rejected Court the notion that deterrence phrases synonymous that in context are by expanding would be better served the with that “actual coercion or oth- term: analysis beyond reach of the “tainted fruit” er calculated to under- circumstances After that involuntary noting statements. suspect’s ability mine the to his exercise rejected argument the that the will,” Tucker free id. at “general goal deterring improper police 222; “physical 84 L.Ed.2d suppression of required conduct” the evi- violence or other deliberate means calcu- will,” violation, suspect’s to break the id. at dence derived from Miranda latecj many of these exam- 105 S.Ct. 1285. None stated: “We believe the Court however, lying described the tactic of equal ples, force when applies with reasoning Rather, suspect. they all described Mi- to a ‘fruit’ of a noncoercive alleged the statement obtained own “an initial unwarned is ... the accused’s randa violation 308,105 overtly inherently or coercive through voluntary testimony.” Id. at Fifth raise serious Amend- methods which Id. process ment and due concerns.” language other light In of this and short, language In do not read the understand how Orso we we fail to improper regarding deterrence of opinion support Elstad possibly read could would; broadly suppress police conduct as as Orso proposition that we should her rather, bright- Elstad to create a doing so we read her warned confession focuses оn voluntari goal deterring the noncoer- line rule which will further neither the initial nor the “improper part tactics” on the ness: “When cive coerced, Indeed, jus admission little argument explicit- subsequent her is police. highly permitting “It tification exists for ly rejected by the Court Elstad: voluntary confes probative evidence of an unwarranted extension of Miranda irretrievably lost to the factfin- simple failure to administer the sion hold S.Ct. 1285. unaccompanied by any actual der.” Id. warnings, other circumstances calculated coercion or suspect’s ability to exer-

to undermine will, investigato- cise his free so taints the Finally, Pope, reliance on Orso’s voluntary ry process subsequent that a justified, while will be short-lived. and informed waiver is ineffective for some police the defendant Pope, the confronted period.” Id. at indeterminate truthful informаtion about the evi with If, instead, argument is S.Ct. 1285. Orso’s him him reading dence suppress that we should her warned con- responded by and he warnings, it deter the fession because will serve to incriminating linking statements making “improper tactic” of police using from the crime. 69 F.3d at himself to suspects reading before interrogating Pope F.3d 1018. After made these state warnings hope the Miranda them ments, him police read the Miranda psychological “letting effects of warnings, gave and he then a detailed bag” will cause them the cat out of the Id. at 1021-22. confession. Without rights, then later to waive their Miranda Pope’s of whether unwarned consideration was, again, explicitly reject- argument involuntary, were we held that statements by the in Elstad. ed Court “pre-[Miranda in “tactic” of ] 105 S.Ct. 1285. “precisely the Su terrogation” was what If, preme had in mind in finally, argument [Elstad ] is that we when im exemptеd ‘deliberately coercive or suppress should her warned confession be- proper obtaining from tactics the initial state cause it will serve to deter ordinary ment’ rule that subse “improper lying during tactic” of from using are not to be measured interrogation, quent then it is hard statements an unwarned standard, by fruit’ but wheth by that Elstad stands for such a a ‘tainted to believe voluntary.” Id. at 1023-24. listed several ex- er are proposition. above, great length “situations the case at As we stated amples [unlike] proper reading requires suppres of Elstad might have tainted a subse- bar” which if n. a warned confession it was warned confession. Id. at 312 sion of quent, Cir.1984) explanation that were that by (holding unwarned statements officer’s tainted Pope implicit- involuntary. To the extent of the evidence against defendant which otherwise, hereby overruled. ly held it is custody). led to his arrest was attendant to Inspector confronting Galetti’s act of Orso

C guilt with evidence of her was not coercive. should there- Orso’s warned confession argues Inspector Orso next suppressed only if her statements fore be engaged Galetti coercive conduct involuntary, any taint the car were misrepresenting piece of the evidence by the time dissipated therefrom had not her against falsely when he stated that a warnings.4 read the Miranda Orso was thought gun witness Orso had used a below, cannot make explain As we Orso robbery. commission of the While repre showing. the first hensible, however, deception, this use of We determine whether Orso’s does not constitute coercive conduct. Fra voluntary statements the car were 731, 737-739, Cupp, zier v. 394 U.S. totality of light of “the circumstances.” (1969) 1420, 22 (holding Pinion, v. 800 F.2d United States voluntary that confession еven though (9th Cir.1986). testified Although Orso falsely the officer told the that his subjective at that that her mental state crime). co-conspirator had confessed anything time rendered she said involun Inspector ‍‌​​​​​​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​​‍also contends Galet- tary, testimony the district court found her ti coerced when he outlined the statu finding clearly not credible—a which is not penalties tory for armed and unarmed rob event, erroneous. defendant’s “[a] However, bery. provided the information mental state alone does not make a state accurate, by Inspector Galetti was and its involuntary.” v. ment United States Tur recitation con does constitute coercive (9th Cir.1991) (cit ner, F.2d Bautista-Avila, duct. United v. States ing Connelly, Colorado v. (9th Cir.1993) (“ ‘[Recita F.3d potential tion of the sentence a defendant (1986)). “[cjoercive Rather, conduct might receive’ does not render a statement have caused to make the [her] must involuntary.”). cannot statements.” 888. Orso that her in the car were show statements physi Orso also maintains that the by any elicited coercive conduct on the surrounding her admis cal circumstances inspectors. part of the sions were coercive because she was hand Tiller, cuffed, Inspector Inspector seated next to

Orso first asserts transported government into in the back of a psychologically coerced However, ride no making involuntary by simply admissions vehicle. the car lasted minutes, informing thirty-five her of the evidence her. more than and the dis However, suggested “this circuit has of her involvement the crime cussion twenty than minutes. when an officer informs a defendant of lasted no more which contribute to an intel circumstances do not evince coercion. circumstances Such Pinion, (holding that cus ligent judgment, exercise of his this infor 800 F.2d at 981 lasting over one hour normally interrogation mation be considered at todial involuntary). custody.” to arrest and United did not render confession tendant (9th Crisco, Indeed, transporting if a handcuffed sus- States involuntary. argue the office was 4. Orso does not that her confession suppress her full confession. car motion to patrol seat of a consti- pect in the back prevailed, in coercion, Accordingly, arrest in because Orso virtually every tuted appeal in from her conditional part, in violation this Circuit would plea, we vacate Orso’s conviction guilty Constitution. permit court to and remand to the district Inspec Finally, Orso claims if guilty plea, her she so Orso to withdraw by engaged coercive conduct tor Galetti chooses, proceed to trial. Fed. and being separatеd from exploiting her fear 11(a)(2). R.Crim.P. daughter prolonged old for a two-year her part, AFFIRMED REVERSED by The facts found period of time. part, and REMANDED. court, however, demonstrate that district prey upon Inspector did not Orso’s PAEZ, with Judge, Circuit whom Chief subjective According to Orso’s own fears. Judge Judges SCHROEDER and Circuit made testimony, it was not until after HAWKINS, McKEOWN, and in the car that the all of her statements join, concurring: RAWLINSON up, came and subject daughter of her first I concur in the determination that the Al broached Orso herself. suppress the incrimina- district court must inspectors though Orso testified made after two U.S. ting statements Orso keep daughter her from her threatened to Inspectors arrested and took her Postal inspectors cooperate, if not she did then her in their custody into drove this, the district court found her deny from Redondo government vehicle finding which is testimony not credible—a Deрartment Beach Police Postal situation clearly not erroneous. Orso’s Inspection In- Service Office. Postal cry far from the case on was therefore a spectors interrogated Orso without first relies, Tingle, States v. which she United informing rights, her of her Constitutional (9th Cir.1981) 1335-37 and these “unwarned” statements must was coercive (holding that conduct suppressed. Miranda v. Ari- therefore be where the officers threatened zona, 436, 444, her child if long-term separation with from (1966). cooperate). Accordingly, we she failed to reluctance, I reject argument she was some also concur Orso’s With that, reprisal regarding Oregon coerced threats of the conclusion under v. El stad, daughter. her (1985), L.Ed.2d the district court need that, conclude under total We suppress the confession Orso made circumstances, inspectors’ ity of these read, waived, then after she was conduct did not render Orso’s statements separately I rights. write involuntary. therefore the car We First, opinion two the court’s reasons. that, agree the district court under with Inspec weight does not accord due to the Mirandized confession Orso’s they deliberately admission that tors’ suppressed. should not have been failed to advise Orso of Constitutional that, rights believed un

IV warned, unwittingly she would incriminate Second, reasons, court identifies the we reverse herself. foregoing For the particular motion conduct that Orso contends was the district court’s denial of Orso’s car, coercive, but does not consider all the fac suppress her statements totality, we affirm the district court’s denial of her tors their as

1041 Inspectors’ deep-rooted feeling subtle “the and as the requires obey law enforcing demands. must while coercion York, 315, Sрano v. New 360 U.S. law[.]” I 1202, 79 S.Ct. Miranda, 480, (1959); at 86 guarantees per 384 U.S. S.Ct. The Fifth Amendment (“The quality of a civilization remain silent “unless he 1602 nation’s right son’s speak largely in the unfettered exercise can be measured the methods chooses to will, penalty and to suffer no uses in the enforcement of its criminal of his own law.”) Schaefer, Malloy Hogan, v. (quoting ... for such silence.” “Fed- Walter Y. 1489, 12 1, 8, Procedure,” 378 U.S. 84 S.Ct. eralism and 70 State Criminal (1964) (1956)). ap Fifth (holding 1, Amendment HaRV. L. Rev. 26 the Four plicable through to the states recognition protec The roots of our and Amendment). The teenth right tion of the fundamental not to be “inherently acknowledged Miranda compelled testify against oneself run process of in- compelling pressures” deep. ago, More than a century Su persons suspected custody interrogation preme Court observed Bram v. United of crimes “work to undermine or accusеd States, 183, 42 168 U.S. S.Ct. L.Ed. compel individual’s will to resist and to (1897), English dating that under law 568 not other speak him to where he would very back to courts knew that the 86 freely.” wise do so 384 U.S. process to an official giving statement explained, the 1602. As we have S.Ct. “impel prisoner] involuntarily to might [a that an accused be advised Court ordered that the speak” unless was cautioned interroga rights before custodial of his cautionary optional. statement was is both aware of begin [he] tions “to ensure fact, important, in advisement was so right Constitutional to si his substantive precise warning wording lence, opportunity continuous as well as his by statute. 168 U.S. at 18 codified Cooper Dupnik, v. right.” to exercise that (“You obliged say are not Cir.1992) (en (9th F.2d so, but anything you unless desire to do banc) (“It the first is no accident you say will be taken down whatever mouth dur words out of a officer’s given in evidence writing, be be: You ing a Miranda advisement must trial.”). upon your against you ”). ‘right have a to remain silent.’ be voluntary, To a confession must “A confession is like no other evidence. of a rational intellect and product “the Indeed, ‘the defendant’s own confession is Alabama, Blackburn v. State free will.” probative damaging probably the most 199, 208, 274, 4 L.Ed.2d that can be admitted 361 U.S. evidence (1960). Fulminante, pressures In addition to the him....’” Arizona v. interrogation, other 113 L.Ed.2d inherent custodial (1991) an compromise can the free will of factors (quoting Bruton United States, 123, 139-40, cannot a confes- accused. Officials extract 391 U.S. violence, (1968) (White, J., of threats or “by any sion sort dissenti L.Ed.2d implied promises, by any direct or Society the use of involun nor ng)).1 abhors the exertion of slight, inher however nor confessions because are tary Bram, influence.” improper we share ently untrustworthy analysis remains the incriminating of their voluntariness Although Orso's unwarned 1. confession, a full same. statements were not 183, 542-43, 18 Malloy, a quoted S.Ct. 378 in deliberate course of action to violate 7, [,] U.S. at 84 S.Ct. 1489. Courts do not Miranda ... the State should not be statements[.]”). require physical injury finding permitted before an to use [these] coercion, interrogation unconstitutional. The focus remains on “[M]ore where ” sophisticated ‘persuasion’ may comply modes of the failure to with Miranda is Blackburn, at 206, effect, suffice. 361 80 U.S. coercive intent and this conduct physical ignored. S.Ct. 274. Neither intimidation cannot be “For caught victims pressure permissible. nor is psychological deliberately the[ ] snare” of who “officials (9th 1332, Tingle, v. 658 ignore F.2d choose to the law and the Constitu- Cir.1981) (citation omitted) (subtle psycho tion in favor of their ... own methods logical coercion suffices at times more ef Constitution of the United States becomes fectively piece “to a rational paper.” overbear intellect a useless of Cooper, 963 will”) Blackburn, (quoting and a free 361 F.2d at 1252. 208, 274); U.S. at see 80 S.Ct. also Blackb recognized Court has re- urn, 206, (“A 361 U.S. at peatedly inquiry that our does not become prolonged interrogation of an accused who rigorous merely less physical coer- ignorant rights his and who has been of yielded sophisticated cion has to far more support cut off from the moral of friends contrary, methods. To the the Court ‍‌​​​​​​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​​‍has infrequently relatives is not an effec directed that our decisions “a reflect care- terror.”) technique tive of add scrutiny ful of all surrounding circum- ed); Cooper, at 1247 (“pressuring 963 F.2d Bustamonte, stances.” Schneckloth v. to talk can be impermissibly 218, 226, 93 S.Ct. 36 L.Ed.2d coercive, physical even if no brutality is (1973). Thus, when considering

used.”). degree whether the of coеrcion involved in In assessing deliberate, the voluntariness of a con- calculated decision to violate fession, police we examine deprives conduct to de- Miranda an individual of due Amendment, termine whether it process was coercive. Fortu- Fifth under the we nately, rarely we encounter types pay of close attention to the subtleties of gave interrogation misconduct that rise to techniques. Mi- Nonetheless, randa. “as law enforcement One relevant factor we examine is responsible, officers become more and the whether and when the administer methods used to extract confessions more Schneckloth, warnings. the Miranda See sophisticated, duty our to enforce federal (“lack 412 U.S. at any S.Ct. of protections constitutional does cease. advice to the accused of his constitutional It becomes more difficult because of rights” is factor in determining voluntari- the more judgments delicate to be made.” ness); 731, 739, Frazier v. Cupp, 394 U.S. Spano, 360 U.S. at (1969) (“Be- quoted Cooper, 963 F.2d at 1245. petitioner fore made incriminating statements, deliberate, We take a dim view partial warnings received “technical,” contrast to inadvertent or fail- his ... rights[,] constitutional a circum- an ures advise accused of his quite Constitu- stance relevant to a finding volun- See, Keman, rights. tariness.”); tional e.g., Henry v. Davis v. State North Car- (9th Cir.1999) (al- olina, 737, 740-41, 197 F.3d (1966) (whether though post-Miranda voluntary state- defendant impeachment ment can be used pur- warnings received interroga- at outset of poses, where the sheriffs “significant officers “set out tion is “gives factor” and add- again same or asked to made which to circumstances weight” ed officers involuntary.); repeat United States his еarlier statements to another confessions (9th Wauneka, 1440-41 Cir. officer. 1985) (“whether was advised Wauneka (internal 330-31, 105 foot- used could not be his admission omitted) (emphasis that his told post-warning questioning are often but him” are factors in determin used interrogation.” one stages of overall confession). ing voluntariness '331,105 S.Ct. 1285. Miranda advisement timing The of the case, acciden- nothing In this there was ex- As Justice Brennan can be critical. her tal about the failure to advise Orso of Elstad, “expert dissent in plained his that rights. Inspector Galetti testified all-important aim for the interrogators” they had an arrest warrant for Orso and fre- “such revelations “first admission”: custody. placed into was directly to a full confession. took her She lead quently manuals advise in the interrogation government handcuffs and seated Standard expect every reason to Inspector that ... ‘there is car—next Tiller. Neither to others, to first will lead rights that the admission read her Galetti nor Tiller Orso ” a full confession.’ eventually and to custody, handcuffing into upon taking her (internal cita- at her, her in the vehicle. After placing or omitted). “[i]nterro- He added that tion conversation, initi- general some Galetti point of the first ad- describe the gators Neither robbery. ated discussion of the ‘breakthrough’ and the as the mission rights at nor Tiller read Orso her Galetti ‘beachhead,’ will ... which once obtained fact, Galetti admitted point either. advan- ‘tactical give them enormous get talking to that he meant ” omitted). (internal citations Id. tages!.]’ so, just “reviewing he was to do he said result, warn- withholding Miranda As a Why her. robbery” with the facts interrogation ses- ings until the end of an “Well, we wanted warnings? Miranda no late strategy. At that not a novel sion is speak with Miss Orso eventually to warn- Miranda рoint interrogation, right if we Mirandized thought may impact: less ings have speak want to might that she away on this numerous variations There are that he told her not He stated with us.” a confession theme. Police obtain talk, emerges faith good his lack of take a of Miranda then violation that he intended from his candid admission for the go for lunch or home break with them. prompt her to converse resumed, questioning is evening. When Orso, True, not touch inspectors did by Miranda warn- preceded this time water, utter or or even deprive her of food “clarify” the asked to ings, suspect bla- Inspector But Galetti’s a harsh word. provide and to confession illegal earlier duty to advise manipulation of the tant Alternatively, additional information makes rights suspect of her Constitutional by ar- might questioned suspect rights the and the mockery of Miranda and with- resting “in the field” officers fact protect. intended case was young warnings, as was out Miranda adeptly maneuvered Inspector Galetti mak- case. in the instant Elstad After requirements around the incriminating admissions or a con- ing doing the fact that not obscure should brought into is then fession, so, of information deprived questioned house and either the station indispensable to her exercise Inspectors’ of free tactics are more coercive sure, will. physical “To be this is not when the following facts are reviewed to- intimidation, equally gether. Notably, but it is destructive of Inspec- Orso was in the Miranda, dignity.” human custody tors’ from the moment left Department; 86 S.Ct. 1602. Pain-free coercion is Police she was hand- just cuffed; coercive the same. placed she was in the back of a vehicle; government Inspector Tiller sat

II her; next procedures these were fоl- lowed, Inspector testified, Galetti jurisprudence regarding Our confessions a “prisoner;” Inspectors Orso was “yield[s] no talismanic definition of ‘volun- ” and Tiller tariness,’ deliberately failed to advise so we must determine “the fac- Orso of her rights Constitutional tual surrounding circumstances the confes- point sion, during the drive to the Postal In- the psychological impact assess[ ] on spection accused, Service Office they be- and legal sig- evaluate[ ] the lieved she would right exercise her to re- nificance of how the accused reacted.” so; Schneckloth, main silent if knowing did at no 93 S.Ct. 2041. witness saw her gun, use a “[T]he never- voluntariness of the first [un- fact; theless lied to Orso about this and light warned] confession is evaluated in of knowing that there was no evidence that totality of the circumstances.” United she had used a Wauneka, gun, States v. Galetti nevertheless (9th Cir.1988) told her that she Arizona, potentially faced a (citing Mincey 25- (for year 385, 401, sentence armed robbery). 437 U.S. (1978)). No single criterion Although other (relatively factors brief Schneckloth, controls. 93 period detention, of suspect, adult sus- S.Ct. 2041. pect’s awareness being taken into Supreme The Court in Schneckloth set custody of investigation robbery) into the out several of the factors that on appear bear our to have lessened the coercive im- analysis. past, example, for pact on this defendant of Inspectors’ Court had youth Miranda, considered “the “end run” around neither the accused, ... or his low intelligence, ... spirit letter nor the of Miranda fare well lack advice to the today. accused his The official conduct here did not rights, constitutional ... the length consist of “a simple failure to administer detention, repeated prolonged warnings, unaccompanied by any actu- nature of the questioning, ... and the use al coercion or other circumstances calculat- physical punishment depri- such as the ed to suspect’s undermine the ability to ” vation of food or sleep.... U.S. at exercise free will.” [her] (internal concur, citations omit- however, 105 S.Ct. 1285. I ted) that, because I say cannot under ‍‌​​​​​​​​​​‌​​​‌​​‌​‌‌‌​‌‌‌​‌​​‌‌​‌‌​​​‌​‌​‌​‌​​‍existing precedent, the Inspectors’

Today’s opinion identifies the relevant conduct was so coercive that Orso lacked analysis rejects factors each sufficient free will to decide whether to factor as a basis in finding of itself right waive her to remain silent. Orso’s unwarned statements to be involun- tary. analysis is correct as far as it

goes, step but a final remains: considering

the factors in their totality. U.S. v.

Wauneka, view, 842 F.2d at my 1087. In notes “For all him; or whether Wauneka practical purposes, prewarning previous remarks could be

Case Details

Case Name: United States v. Jody Myesha Orso

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 17, 2001

Citation: 266 F.3d 1030

Docket Number: 99-50328

Court Abbreviation: 9th Cir.