United States v. Willie Tyler A/K/A "Little Man" Willie Lee Tyler

opined Tyler, qualified Appellant. The court that because im- Willie Lee applied claim, munity process due Abbott’s No. 96-7776. necessarily apply would Fourth Amendment claim well.3 as Yet whether the United Court Appeals, States of qualified immunity defendants are entitled Third Circuit. from a claim under the Fourteenth Amend- wholly is a inquiry ment different from Argued Aug. quali- defendants are entitled Reargued immunity fied from Fourth Amendment involving personal prop- claim the seizure Dec. Decided whether, erty. inquiry The latter involves light clearly established Foúrth Amend- applicable 25, 1996, April

ment law position

reasonable officer in the Diehl and George

Lt. would have believed that then-

conduct violated Fourth Abbott’s Amend-

ment This issue has not even been

raised, analyzed. let alone Leave to amend complaint granted. should have been

IV. CONCLUSION reasons, foregoing

For the affirm will summary judg-

the district court’s order of

ment in favor of Officers Sarsfield and Staf-

ford, grant will summary but reverse

judgment as to Constable Diehl and Lt.

George. We will reverse also the district §

court’s dismissal of Abbott’s 1983 claim Latshaw,

against its denial of leave to complaint,

amend and we will remand to proceedings for further opinion.

consistent this

UNITED STATES of America

Willie TYLER “Little Man” a/k/a 3. The district court made determination argued none defendants any briefing by parties. without the benefit of tire amendment availability was futile because of the amend, opposing qualified immunity Abbott's motion for leave to of a defense. (Argued), A.D. Zubrod Office of

Gordon PA, Attorney, Harrisburg, States United Appellee. for 12,1997. Argued Aug. ALITO, McKEE,

Before: LEWIS Judges. Circuit 8,1998. Reargued July COWEN, McKEE, ALITO and Before: Judges Circuit OF THE OPINION COURT McKee, Judge Circuit Tyler (“Tyler”) appeals Lee Willie con- charges arising killing out victions on Proctor, government of Doreen witness testify against who was scheduled brother, David, mur- day after Proctor’s David, Tyler, Ronique Bell der. Roberta subsequently others were arrested charged in court. and Bell were state acquitted prosecution of murder in the state they conspiracy (though were convicted witness) intimidate and were thereafter separately prosecuted tampering for witness and related offenses federal court. conspiracy, tamper- was convicted of witness ing, and a related firearms offense prosecution, appeal followed. federal error, He raises several assertions howev- er, only assertion that discuss his denying his motion to district court erred His suppress certain custodial statements. remaining either assertions are meritless exception challenge of his waived jurisdiction under 18 the court’s U.S.C. only § 1512. We will mention assertion already briefly disposed have as we one of appeal claim in the taken follow,we For the reasons that companions. denying will the district court’s order reverse af- suppression of the statement Ulrich, Public Lori J. Office of Federal warnings, and being given his ter Defender, PA, Harrisburg, Siegel Daniel I. with this proceedings for consistent Defender, remand (Argued), Public Office of Federal PA, Appellant. opinion.1 Harrisburg, jurisdiction § pursuant

1. We have U.S.C. patory against

I. statement that was introduced him his trial. April tried David in the Pleas in Common Cumber- later, days Eleven ob- County, Pennsylvania land on criminal tained another statement from while charges drug trafficking. related to Doreen County in in custody he was Adams Jail. The Proctor, government informant Tri- a for the government maintains that the officers re- County Drug Pennsyl- Task Force Central warnings, Tyler peated Miranda verbal- vania, testify against was him. scheduled to ly them, acknowledged that he understood previously against Ms. Proctor had testified proceeded orally that he and to waive those individuals, including Tyler, several David give inculpatory and another state- during hearing in preliminary a state court in statement, That ment. which was also intro- Carlisle, However, Pennsylvania. day trial, against at duced him differs from the begin, before David trial was to July that in later state- beat, Tyler severely David and his cohorts Tyler only ment states that wanted David to stabbed, and mangled shot Proctor. Her “scare” Ms. Def. Exh. Proctor. “J”. In his body day. discovered next was statement, Tyler earlier said David wanted to kill her. 9, 1992, July police Ty-

On arrested Willie ler for the murder Proctor him and took to Tyler filed a suppress motion to all state- Borough the Carlisle Police Department. July 9, ments made on and the statement he Tyler After gave an officer his Miranda July on The granted made district court Tyler warnings,2 stated he did not wish Tyler’s suppression any motion as to state- statement, a make and the officers re- Tyler may given July ment have on 9 before interrogation. frained from further (“the receiving warnings pm 10:00

Tyler statement”),4 was then taken the State Police but denied it as to both Pennsylvania (“the in Gettysburg, Barracks for re- gave statement he after he was warned arraignment.3 statement”), Egolf pm Ronald Detective 10:55 and the statement he Department Carlisle Police assigned gave July County later the Adams guard process Upon arriving jail. Tyler and him. argues at now that the district court barracks, Tyler was taken to a small suppressed should have both pm the 10:55 and, room at pm, about 10:00 he Detec- July and statement and the 20 statement. Al- Egolf engaged tive in a in- though agree discussion that we that the court district erred education, hunting, Tyler’s Ty- cluded denying suppression and as to motion Although ler’s statement, cannot, mother’s health. it is clear that 10:55 basis of police record, engaged were in a dis- make determination as to the up cussion until it pm, 10:55 is not clear how Accordingly, statement. we will re- many involved, exactly were nor what to allow mand the district court to make an clear, however, It is ap- said. appropriate inquiry admissibility into the proximately pm, began cry, 10:55 that statement. If the court concludes that police again warned of his Mi- admitted, properly statement was randa This time ineul- must determine not the Arizona, 2. See Miranda v. may 86 S.Ct. that it tent be relevant to the circumstances 16 L.Ed.2d 694 leading up to the defendant’s statement of dispute exactly There is some about what oc- Tyler alleges curred in transit. drove parties 4.The and the district refer court to the parking through lot where cocon- statement(s) prior alternatively dates of the as spirators night had driven the of Proctor’s mur- 9, 1992, 10 and 9-10 because of government disputes der. this tes- the lateness of the hour. For the sake of consis- timony, attempt district court did not tency, clarity, we will event, assume that the date of any given resolve the conflict. our during given holding today, significance custodial interro- of this conflict is 9, 1992, note, however, gation greatly began pm at 10:00 suggested reduced. We as below, though may given our discussion even the statement been have midnight. must resolve this conflict on remand the ex- honored, warnings] [certain admitting statement was eiTor But and until required.... are unless harmless. such and waiver are demonstrat- prosecution ed ... no evidence II. interrogation a result of can obtained as addressing the substance Before against used him. rulings on the challenge to the district court's 478-79, (emphasis motion, note that we first added). Supreme elaborated was insufficient evi argues there also Michigan Mosley, this in under 18 to sustain conviction U.S.C. dence (1975). There, 1512(a)(1)(A) (C) (tampering with a § succinctly con- the Court stated: ... “We witness, interfering federal federal admissibility clude that of that investigation). need not discuss We custody person obtained has after contention, however, recently we re because depends Mi- decided to remain silent of contention codefend- jected the identical right ques- randa on whether his to cut off Bell, ant, in her Ronique appeal Roberta tioning honored.” was her upon conviction involve from her based at in the (emphasis 86 S.Ct. 1311 of Ms. Proctor. See in the murder ment text). original 1345, 1348-51 Bell, 113 F.3d States United Tyler When was taken to the Cir.1997). (3d reject Tyler’s argument We asserting right his remain barracks after to evidence not establish federal that did silent, room, in a placed was small he for the same jurisdiction under that statute walls of which contained a timeline of rejected argu the identical that reasons photo investigation murder and crime scene Ms. Bell. ments of of the graphs, including photographs two (one body Proctor which was of Doreen of III. color). there In his He remained for hours. he, that De report, Trooper Graham stated pm The A. 10:55 Statement Donnelly Egolf and Troopers tective Ronald Tyler court maintains that Tyler began “talking and to” Fenstermacher pm the 10:55 state when it admitted erred Tyler had pm, though at about even 10:00 after was he had ment that taken want to previously that he did not told them right his to remain silent. We exercised stated his make statement. Graham also plenary as to the admissibili review exercise report: challenged ty of each of the statements. very Tyler talking While to he became Benton, 996 F.2d States United tq Tyler began cry. Mr. emotional and Cir.1993) Calisto, (3d (citing States United going to they stated not know were he did Cir.1988)). (3d F.2d 717-18 and there kill Proctor that he was Doreen Tyler dispute is no that was There Rober- but did not if happened when it see custody pm when he both 10:55 King Ronique ta Bell or Jerome Kenneth and the 20 statement. shooting. He however relate did the did Arizona, the Supreme Miranda v. subjects only peo- that were the those two held ple happened and back there when had re- Tyler his brother David James custody taken into an individual is [WJhen him. in the first vehicle with mained by of his deprived or otherwise freedom of the Tyler [leaning] David out James any significant way authorities in car, yelling, got kill her crying “We to subjected privilege questioning, to is now,” kill her got to now.” “We jeopardized. against self-incrimination is Tyler stopped At time Mr. safeguards employed must be Procedural again his [of] advised privilege and unless other protect to Tyler and Mr. adopted notify Trpr. Fenstermacher fully are to effective means which signed Rights Waiver form of person silence and his report---- to this will be attached that the exercise assure Graham, Op. According any D.Ct. give at it was asked if he wanted to us state- declined, Tyler at that revealed all ments or information he moment so questions happened night posed murder no further were him.” identity of those involved. findings D. Ct. 6. Rather than make Egolfs testimony sup-

Detective at the analysis fact and conduct an based pression hearing sharply findings, conflicted with any those district court allowed Trooper evening. account Graham’s into evidence obtained Tyler Egolf that he claimed were the was advised of his Miranda only present people two in the room rights. when The court stated: cry, started and that he told To the extent the Defendant did make crying. “tell when began App. the truth” he any being statements while interviewed be- Egolf also claimed 10:55, tween 10:00 and those statements and, began pm, speak (Egolf) at 10:55 he suppressed.6 will be state- read his knowingly ments made after Defendant signed a waiver are admissi- conflicting nature of the ble. poisonous Defendant’s “fruit of the testimony in this case caused the district argument rejected. tree” must be Even to comment: “We are troubled assuming improperly the officers elicited glaring Trooper inconsistencies between prior statements from the Defendant to testimony report Graham’s elicited reading rights, his the statements that at the suppression hearing concerning what p.m. Defendant made after 10:55 were the prior pm July occurred to 10:55 on 1992.” knowing result of Defendant’s and volun- Op. 7. D.Ct. at The court also noted that tary rights waiver of his and were not point,5 unclear, the “[a]t this facts become any by prior tainted illegal statements. particularly respect Trooper to Gra Op. D. appropriate Ct. at 8. inquiry The However, ham.” D. at 6. Ct. the district however, progeny, Miranda its is any findings court failed to make of fact as simply not knowingly waived actually happened. note, to what We howev receiving his after appropriate warn- er, Egolf that and Graham’s versions of Rather, ings. inquiry the is whether the what occurred are both inconsistent with police “scrupulously Tyler’s honored” asser- obligation their to scrupulously Tyler’s honor right Here, tion of his to remain silent. it is right assertion his of to remain silent. Nev clear they that did not. ertheless, the district court’s failure to make findings of fact has made our task of review In Mosley, Supreme amplified Court ing ruling Tyler’s argu record pronouncement its that “[i]f individual significantly ments more difficult. It is clear any manner, any prior indicates at time to that the court by was troubled during or questioning, that he wishes to re- testimony police case, in this silent, main interrogation must cease.” suggests testimony is not Miranda, 473-74, at 86 S.Ct. 1602. example, responded credible. For the court The Mosley explained Court in that this lan- government’s argument to the guage interpreted literally could be to mean right never asserted his to remain silent as several things: person a who has in- follows: right voked his or her to can silence never be argument, testimony subjected

[T]hat of interrogation; to custodial any Government’s the [suppres- witnesses at following that was taken exercise hearing by are prior sion] undermined of privilege product is “the compulsion of testimony Trooper Craig of R. Fenster- and would therefore its mandate exclusion maeher, evidence, who testified that Defendant from “was even if ... volunteered with- Here, did, referring the court specifically is the moment court did not find he it Tyler began cry. when merely any Tyler may ruled that statement that suppressed. have made before that time was appear It does not from the record that made pm. a statement before 10:55 The district However, whatever”; assertion of silence. interrogation any further out (as above), the may “require only the immediate ces- make matters worse noted permit ... a re- questioning, of room which the “conversation” occurred sation momentary after a sumption interrogation pictures hung of the murder victim 102, 96 S.Ct. respite.” the walls. rejected each these Thus, clearly the district court erred latter rejecting the inter-

interpretations. allowing prosecution to admit statements that allowing pretation, the Court reasoned pm taken from after defendant 10:55 momentary only interrogation “after cessa- prosecution 9. The should not have been clearly purposes of frustrate the tion would allowed to those in its case- admit by allowing repeated rounds of in-chief.7 per- the will questioning undermine being questioned.” Id. son July 20, B. 1992 Statement not, Accordingly, it clear that can is This case raises issue that we have not alchemy, negate if invocation as yet addressed in the context in which remain silent a mantra-like previously raises it. have had to deter- We of warnings. The warn- recitation mine the legality of custodial statement ritual, a mere ings are intended to be illegally prior have obtained guarantees of which admissibili- exercise of a statement in the context technical viola- ty is obtained in a tion of under the Amend- Fifth interrogation regardless of cir- custodial Johnson, ment. See United States safeguard “The cumstances. critical identi- (3d Cir.1987). not, We howev- F.2d have [Miranda person’s ] is a to cut fied er, proper analysis determined the when Mosley, questioning.” off prior illegality alleged taint a sub- (internal omitted). quotation marks S.Ct. 321 ” “Mirandized sequent statement is the fail- noted, Thus, as earlier the Court concluded scrupulously to honor a ure Mosley admissibility of “that state- questioning. Ty- right to cut off defendant’s custody person ments obtained after July 20 should ler claims that the depends decided to remain silent has it ob- suppressed have been because Miranda on whether right his to cut off tained of his Sixth Amendment violation scrupulously honored.” Id. questioning was product “the right to and was counsel omitted). (internal quotation marks There- that 9th illegalities initial occurred on fore, it simply district erred when court (citing Br. 44 Appellant’s 10th.” at “any that after statements made concluded States, 471, Wong Sun v. United 83 knowingly signed waiver of his Defendant (1963)). 407, gov- S.Ct. 9 L.Ed.2d D. at rights are admissible.” Ct. Tyler’s right to coun- ernment counters Here, truth” the command to “tell the Tyler because initiated sel was not violated Tyler had invoked his rights is the analysis questioning. We believe honoring scrupulously right antithesis of his (and allegations that that has been used to resolve Egolf possi- to remain silent. Detective by a prior tainted violation 153, statements were supra see others), bly pp. 151 and had Amendment of the Fifth Fourth Tyler with carrying on a conversation and/or been control, though our guide, should also nearly an hour broke when he down inquiry scrupulously failure to honor into the to “fell the truth.” These was instructed silent, pur- would, themselves, Tyler’s remain right to in and of circumstances right to honoring ported of his counsel.8 inconsistent denial concurring opinion, Judge Alito states court In his 7. Since we hold that the district erred i n statement, "Tyler's suppression of the admitting brief did not seek we need not ad 10:55 grounds.” See Tyler's argument on constitutional the tactics dress used However, Tyler ploy states that to overcome will Dissent at 24. amounted to a "scrupulously interroga troopers honor” his equivalent of state failed was the functional Mosley. Michigan right silent under the rule enunciated in Rhode remain tion in violation of Innis, 291, 1682, argues Appellant's He Br. at 40. also 100 S.Ct. See Island v. 446 U.S. psy- (1980). “continuing barrage police engaged in a L.Ed.2d 297 determining When whether a sus observed: is nothing “[T]here in the record pect’s right Sixth Amendment to counsel support has argument that Defendant’s violated, been our standard ple of review is knowingly waiver was not made.” D. Ct. nary. Delaware, Flamer v. 68 F.3d 720 Op. at 9. That statement suggests that the (3d Cir.1995). right The Sixth Amendment required Tyler prove to counsel “at attaches or after the time that pursu- was not made judicial proceedings have been initiated waiver, ant to a valid Miranda rather than against by way [an individual] requiring government to establish a valid charge, preliminary formal hearing, indict government, however, waiver. The has the ment, information, arraignment.” or Brewer burden establishing knowingly, Williams, 387, 398, 430 U.S. voluntarily intentionally waived his Sixth right Brewer, Amendment to counsel. See (“[I]t 430 U.S. at 97 S.Ct. 1232

Here, [is] Troopers Fenstermacher and Gra- prove incumbent the State to an ‘inten- ham visited in his cell at Adams Coun- relinquishment tional or abandonment of a ty Jail on 1992 and obtained an ”) privilege.’ known or (citing Johnson inculpatory statement from him. Zerbst, 458, 464, already arraigned been and his to coun- (1938)). L.Ed. 1461 sel had attached.9 Trooper Ty- Fenstermacher testified that Here, the appears district court to have ler meeting. App. initiated the 321- did, reversed that burden. If the court guard, He stated that a someone committed error. indulge every “[C]ourts capacity, similar told and Graham that presumption against reasonable waiver of Tyler desired to make a statement.10 Accord- fundamental rights.”11 constitutional ing Fenstermacher, Graham re-Miran- Tyler, dized 'but did sign not ask 2. “Fruit of the Poisonous Tree” waiver of his Miranda Graham testi- United Bayer, States v. fied that was aware of his 540-41, (1947), 91 L.Ed. 1654 chose not to invoke them. The district court Supreme recognized that: agreed. After an accused has once let the cat out of analyze We will legality bag the confessing, no matter what the statement theory both under the the inducement, he is never thereafter free of illegal statement was prior fruit of the psychological practical and disadvan- Tyler’s failure to honor request ques- tages having of confessed. He can never tioning cease and in terms of the purported get the eat bag. back The secret is waiver right to counsel. These two out good. case, for In such a a later similar, avenues of attack are but not identi- may always confession upon be looked as do, They however, cal. converge into a sin- fruit of the first. gle inquiry validity of the purported —the waiver on 20. has, however, The Court away backed from formulating an absolute bar to the use of 1. Waiver subsequent Elstad, statement. Oregon In v. In denying challenge 298, 1285, to state L.Ed.2d July 20, ments taken on (1985), the district court the Court upon elaborated the cir- chological ploys” above, to elicit statements after 10:55 skeptical tioned the court of other 9, p.m. Therefore, Appellant's Br. at 39. testimony. he asserts a constitutional violation under Mos- ley. however, emphasize, 11.We an "[i]f accused 'knowingly intelligently' [communicates with 9. Counsel, however, appointed was not officers without the aid counsel] we see no App. until , at 392. why reason the uncounseled statements he then makes must be excluded at his trial.” Patterson finding Illinois, The district court made no as to the credibility although, (1988). of that assertion as men- L.Ed.2d 261 The an may put be 95 S.Ct. 2254. same is true of in which the cat back eumstances bag subsequent unconstitutionally obtained a statement.12 into the violation Mi- despite prior admitted Reid, (2d Campaneria 891 F.2d 1014 recognized that the randa. The court there Cir.1989), by approached the defendant must questioning that all cease command investigators several times while right or her asserts his once a defendant recovering hospital in the a serious from Miranda cannot be in- remain silent police inquired knife as to wound. When subsequent ques- preclude all terpreted ready finally give a state whether he was any subsequent tioning, nor to bar statement ment, he he not and told responded that regardless of circumstances. They responded later. them come back Here, the held that the district court us, you “if now is insisting want talk to any prior purged of July 20 statement was the time to do it.” Id. Campane- warnings solely because Miranda were taint ria’s Miranda rights were and he then read taken. D. given before statement was statement, gave a recorded statement. That the fact Miranda at 9. Ct. trial along was admitted at his with others only part may given have is been hospitalized, that he while and he was though analysis. necessary, It manslaughter. Campaneria ap convicted of sufficient, government’s to sustain the bur pealed, arguing part the failure to simply Accordingly, cannot infer den. right honor his of his to remain assertion language it from the court’s silent and the coercive conditions which Tyler’s purported 20 to waiver found taken, pre were have statements should intelligent. knowing, voluntary, and The prosecution admitting cluded from inquiry make that would be did not court Appeals recorded statement. The Court of support finding. adequate to such disagreed. for the Second Circuit The court presence its Aside from reliance purpose prophy reasoned that -of this “[t]he of the warnings, specific as- no inherently rule lactic is to counter coer the circumstances pect record or of Id. interrogations.” cive effects of custodial support its was cited nevertheless, that, at 1021. The court noted court, words, ap- in other conclusion. be re “[questioning is clear that can held that the Miranda warn- have peal’s to sumed after fresh warnings are ings in and of broke causal themselves given right to remain is other silent chain.... honored.” Id. The court wise Illinois, factors be ana Brown then noted several that must lyzed “If is a causal L.Ed.2d determine there themselves, prior illegal warnings, by held to atten- link between the were arrest, purportedly ob subsequent taint of uate the an unconstitutional pursuant valid purposeful how tained to a waiver of regardless of wanton and violation, to counsel. exclusionary to remain silent and ... effect of to, include, but limited diluted.” Id. substantially These factors are not would be rule 285, 296-97, uncoerced, Illinois, rights that he times knew U.S. at all In Patterson 487 2389, (1988) request lawyer, S.Ct. 101 L.Ed.2d 261 the Su- 108 he could mute and a stand preme Court stated: he the intention to use that was aware of State’s conviction, general analy- ... an accused is As a matter who a the his to secure warnings prescribed by with the admonished this Court in complete as a is and the waiver is valid sis sufficiently ... has been (internal quotation Id. marks matter of law." apprised of the Sixth nature of his Amendment 412, omitted) Burbine, (citing Moran v. 475 abandoning rights, consequences of 422-23, (1986)). rights, on those so that his waiver this basis below, Here, the court's as we further discuss knowing intelligent will considered a go inquiry beyond whether the remand must one. knowing, voluntary and intelli- defendant implicate a However Patterson did not violation gent July 20. must also waiver on The court duty scrupulously the honor an assertion of obtaining the waiver was con- consider whether protections According- Miranda. the ly, afforded Michigan Mosley, 423 U.S. at sistent with it is the Court concluded that once established 96 S.Ct. 321. rely a defendant's to not on "his decision time, passage subject the the matter of July which the interrogation was conduct- subsequent interrogation, ed, the and whether other factor that is relevant to interrogators the are “coercive or overbear deciding police exploited prior them ing.” Id. at 1019-21. disregard Tyler’s right to remain silent in obtaining Thus, the 20 statement. Johnson, holding we discussed inquiry must include consideration of the ex- Elstad, Oregon v. tent to which the 20 statement was the (1985). 84 L.Ed.2d We noted that prior result of the misconduct that resulted the Court pm in the 10:55 Although, statement. as we rejected specifically [i]n Elstad propo- Johnson, noted in a valid waiver will “ordi- poisonous sition that the fruit of the tree narily dissipate” prior suffice to violation of doctrine, which in the fourth amendment Miranda, the district court’s inquiry can not requires context the exclusion of evidence ignore prior determining violation in if or confessions obtained as a result of a subsequent waiver was valid. See Alston violation, constitutional extends to viola- Redman, (3d Cir.1994) 34 F.3d Rather, tions of the Miranda decision. (“In assessing validity waiver, of the requires concluded that Miranda must voluntary, determine whether it was i.e. only that the surrounding circumstances free of deception, coercion or and whether it subsequent confession be evaluated to de- knowing. Only totality if the termine whether the confession was know- surrounding circumstances interrogation ing voluntary. The Court held -further reveal both an uncoerced req- choice and the that a suspect’s subsequent choice to waive comprehension uisite level of may a court rights his or proper her after a administra- properly conclude the Miranda tion of warnings ordinarily should waived.”) (citations properly have been omit- dissipate suffice to impact the coercive ted) (internal omitted). quotation marks the earlier confession and to demonstrate knowledge and voluntariness. If the court concludes that (internal 816 F.2d at quotation 922-3 marks admitted, properly statement was it must omitted). Here, remand, and citations then decide if admission of pm the 10:55 district court must first if determine statement was harmless error. conduct of the obtaining constitutionally Absent impermissible coer- statement was consistent with duty their cion in eliciting confession, an initial Tyler’s prior honor assertion of adequate administration of Miranda warn- to remain silent.13If the court con- ings subsequent before a voluntary confes- duty breached, cludes that was not it must sion validates that despite confession totality consider the of circumstances fact that the earlier confession is inadmis- surrounding 20 statement and deter- sible because the if mine that statement was the result of a preceded inadequate it were knowing, voluntary intelligent waiver of protections implicit Johnson, in the Miranda above, 816 F.2d at 922. As noted warnings. Colorado v. Spring, 479 U.S. the 10:55 very similar to the 572-73, 93 L.Ed.2d major statement. The difference include, inquiry That must but not appears necessari- to be that in the 10:55 statement ly to, be limited factors such as who initiated said his Proctor, brother wanted to kill 20 interrogation,14 the time but in the said that elapsed between interrogations, the two only his brother wanted to scare her. In extent to which the same were in- Johnson we ruled that admission of an oral volved in interrogations, both the manner in statement taken proper without Obviously, 13. suppressed that statement must 14. If interrogation, initiated the or caused if the initiated, Commonwealth does not meet its burden of prosecution to be would be hard- demonstrating police scrupulously pressed honored carry indeed to establishing its burden of Tyler's prior assertion of his to interrogation -remain scrupu- was consistent with taking July silent in 20 statement. lously honoring Tyler’s right to remain silent. suppressed have been because should because harmless error warnings was “scrupulously did not inculpa- interrogating officers written gave subsequent defendant Tyler’s right under Miranda v. honor[ ]” were after Miranda tory statement Arizona, two similarity of the administered. (1966), questioning. to conclude L.Ed.2d 694 to cut off there lead us statements 96, 104, Mosley, from the Michigan more jury ... learned no “the it did than admitted confession

improperly Johnson, properly admitted one.” from the necessary agree I that a remand is also (internal quotation marks F.2d at 923. statement, but respect Tyler’s to omitted). require a analysis may proper A my separately explain understand- I write hand, the other here. On conclusion similar questions to be considered ing of the between the two the difference helpful remand. I find it district court on that there may the court to conclude lead separately each of the discrete doc- discuss conclude that here to distinction sufficient part in that are touched IIIB of trines statement was of the 10:55 admission majority opinion. harmless. possible that admission ruling In that it is I. harm- may constitute statement of the 10:55 outset, I that it is useful to At the think prop- if the less error exactly arguments relating to identify which First, points. we stress two erly admitted are before us. 20 statement that we think the suggest intend to we do not following suppress, Tyler said the motion conclude should not court should or July 20 statement: about the Second, we do harmless. error was that the suggest the Commonwealth days not mean eleven On always cure a failure to may Tyler’s arrest on murder and related Mr.' right to assertion of his an accused’s proceed- honor enforcement officers charges, law merely by subsequently admin- remain silent County interrogate him at the Adams ed to warnings during a defen- istering Miranda presence of counsel. without the Jail merely hold interview. We dant-initiated 20, 1992, despite the fact 25. On here, that, pri- the circumstances under through pre- Tyler had been that Mr. should be considered police misconduct sitting had been liminary arraignment and subsequent validity determining the days, law enforcement jail eleven “waiver.” waiver of get failed to a written officers Mr. IV. Ty- that Mr. It is submitted herein herein, forth we will the reasons set For and not were coerced ler’s statements Decem- court’s order of reverse the district intelligently voluntarily, and knowingly, partially 1996 that denied ber made. motion, a hear- and remand for obtained statements were 27. These purported validity of the ing to determine the Tyler’s constitutional of Mr. violation that resulted Miranda waiver Amend. V. rights. U.S. Const. If the court concludes statement. Amend. VI. Const. admitted, it properly alternative, Mr. would In the 10:55 if admission of the then decide will sup- Honorable Court request that This harmless error. amounted to the invoca- made after all statements press remain silent tion of his ALITO, concurring. Judge, Circuit tree. poisonous as fruits of I, II, opinion of IIIA of the join parts I App. 37-38. agree is sufficient I there the court. Thus, sought suppres- to have Tyler seems Tyler’s conviction support evidence sepa- on four 1512(c)(l)(A)(C) July 20 statement sion of the and that § 18 U.S.C. (1) failed to 9, the officers 1992, grounds: July rate made on Miranda attorney obtain a written waiver of his appointed represent an was (2) rights, knowingly, Tyler. did not vol- (App.392).

untarily, intelligently waive his Fifth right to counsel “attaches at or after (3) silent, right Amendment to remain judicial adversary proceed- the initiation of knowingly, voluntarily, he did not and intelli- ings by way charge, of formal —whether gently right waive his Sixth Amendment indictment, preliminary hearing, informa- (4) counsel, July that the 20 statement tion, Nelson v. Fulcom- arraignment.” n suppressed should have bee under the er, (3rd 928, Cir.1990); see 911 F.2d poisonous “fruit of the tree” doctrine based Williams, also Brewer v. 430 U.S. improper questioning on on (1977); Kirby S.Ct. Illinois, 406 U.S. Tyler’s The district court denied motion to (1972). Presently, L.Ed.2d 411 “adversari- suppress 20 statement and wrote: judicial al proceedings” begun. had Defendant suppress also seeks to Therefore, Troopers Tyler’s violated statement he made to the authorities on right sixth amendment to counsel and the 20,1992. Essentially, Defendant con- suppressed. statement should have been tends that because the officers failed to Moreover’, prod- this statement was the obtain a written Miranda waiver, we must illegalities uct of the initial that occurred suppress the statement. Defen- Wong Sun v. Unit- 9th and 10th. cited, dant has not and our research has States, ed disclosed, single not case which held that (1963). L.Ed.2d 441 poi- As “fruits of the the failure to obtain a written Miranda sonous tree” this statement sup- should be grounds suppression waiver is of a pressed. defendant’s statement where the defendant Appellant’s Br. at Consequently, Ty- 43-44. verbally informed of his Miranda appellate ler’s brief abandoned the first and rights prior making the statement. arguments second made in his Moreover, nothing there is in the record to motion, i.e. that a written Miranda waiver support argument that Defendant’s necessary and that knowingly, he did not knowingly waiver was not made. intelligently, voluntarily waive his Fifth Dist. Accordingly, Ct. at 8-9. the court right Amendment Tyler’s to remain silent. expressly rejected Tyler’s argument first entirely brief instead relied on the third and (that a written Miranda waiver was needed), arguments fourth made in the district court as well as his arguments second and third (i.e. that he did knowingly, intelligently, not (that knowingly, he did not voluntarily, and voluntarily waive his Sixth Amendment intelligently waive his Fifth and Sixth right to counsel and that the 20 state- rights). Amendment The court not did ex- ment should have suppressed been under the pressly Tyler’s (i.e., address argument fourth doctrine). “fruit of poisonous tree” I will 20 statement should have been now arguments discuss each of sepa- these tree.) suppressed poisonous as the fruit of a rately. Tyler’s The section appellate brief deal- ing II. with the reads as follows: Tyler’s A. I turn first to contention that July 20,1992, On troop- two of the same he did knowingly, voluntarily, and intelli- who previously Tyler’s ers had gently violated waive his Sixth Amendment

right to remain silent prison went to prior counsel providing 20 state- where had been housed to given interro- ment. If gate him further. pris- orally had been in waived his rights prior days, on for ten formally had been charged statement, to furnishing with criminal homicide argument and related of- Patterson v. Illi- governed by fenses, nois, arraigned. and had been attorney already to an case, attached. L.Ed.2d In that the defen- fact, just day later, July 21,1992, dant, one indictment, waived his

161 255, contrary evidence incriminating App. 298. No provided an rights and then attention, been called to our and present. The de- record has counsel without a made not assert either that he had not indeed briefs do argued that fendant his intelligent” warnings waiver of Sixth not administered or “knowing and were (id. 292, 108 S.Ct. rights orally waive Miranda Amendment did not his disagreed. 2389), Supreme Nevertheless, Court but rights. since “key inquiry” as identified accuracy parts The Court of the questioned the of other accused, his who waived follows: “Was testimony, agree I that we should officers’ during postin- rights Amendment Sixth court to make an remand for the district sufficiently made questioning, dietment finding point. If the district explicit on this present light to have counsel of his aware of the record of the court finds on the basis possible and of the during questioning, hearing that waived his forgo the aid consequences of a decision rights, the court should then con- 292-93, 108 S.Ct. 2389. Id. at counsel?” are unusual circum- sider whether there Miranda warn- noted that “the The Court comparable to present that are those stances aware made him ings given defendant] [the by Supreme Court footnote mentioned during present right to have counsel of his 9 of Patterson. 293, Id. at 108 S.Ct. questioning.” finds, on the other B. If the district court noted that “the Miranda The Court further hand, waive his Miranda did not defendant] make warnings [the also served to argu- rights, Sixth Amendment consequences of decision aware of the analyzed Brewer v. ment should be his Sixth Amendment him to waive Williams, 51 430 97 S.Ct. U.S. The questioning.” Id. during postindictment (1977), 424 and related cases. Un- L.Ed.2d general that “[a]s then concluded whether all precedents, these the test is der is admonished ... an accused who matter “an inten- the relevant circumstances show warnings prescribed this Court with the of a relinquishment or abandonment tional sufficiently ap- has in Miranda ... been privilege.” Id. at known of his Amendment prised of the nature Sixth Zerbst, (quoting Johnson consequences of abandon- rights, 458, 464, 82 L.Ed. U.S. rights, his waiver on this ing so that those (1938)). knowing intel- basis will be considered (em- 108 S.Ct. 2389 ligent one.” Id. III. omitted). added) (footnote In a foot- phasis note, does pointed “[t]his out that properly the Court be- argument that is The other mean, course, all Amend- Sixth is whether fore us postin- challenges to the conduct ment the “fruit of the suppressed under must be fail whenever the questioning will doctrine, dictment developed which poisonous tree” practice pass constitutional challenged would e.g., Wong cases. See Fourth Amendment 9,108 n. Id. at 296 484-88, muster under Miranda.” States, Sun United to a The Court then referred (1963) S.Ct. 2389. (suppress- 9 L.Ed.2d suspect “a was not told in which situation tangible evidence result- ing lawyer trying to reach his arrest). unconstitutional ing from an in which and a situation during questioning” question in Supreme Court addressed initiated a sur- officer undercover Elstad, 298, 105 S.Ct. Oregon an unindicted reptitious conversation with case, In that L.Ed.2d suspect. Id. made an was arrested and the defendant having been without incriminating statement Patterson, question first light giv- warnings. He was later given Miranda court should address the district warnings, his Miranda waived en such given Miranda remand is whether confession. a written rights, and executed rights. waived his Miranda poisonous tree” Relying the “fruit of the Trooper Gra- Trooper Fenstermaeher doctrine, held that appellate court the state given ham testified that suppressed. had to be confession the written orally See warnings and waived that, The state court though admissible, reasoned even confession was nevertheless the written confession did not any result from admitting that error in the oral state- compulsion,” “actual impact “the coercive of ment at trial was harmless. Id. at 922-23. unconstitutionally obtained statement re Johnson, In view of appar- Elstad and it is mains, because in a defendant’s mind it has that ent defendant’s of invocation Elstad, Oregon sealed' his fate.” 61 Or. Fourth Amendment “fruit poisonous of the (1983). App. 658 P.2d The state tree” doctrine inapposite, and I am fearful that, court wrote period because of the brief may majority’s confusion result from the incidents, separating the two cat “[t]he reference to “fruit poisonous of the tree” sufficiently bag out of the to exert a coercive Illinois, precedents such as Broten v. impact on [the] defendant’s later admis 95 S.Ct. sions.” Id. at 555. Maj. Op. majori- See at 156-57. The The United Supreme States Court re ty quotes Brown’s statement to the effect versed, holding that poison the “fruit of the warnings by Miranda may themselves ous tree” apply doctrine does not when the not be sufficient to “attenuate the taint of an “poisonous tree” consists of a violation of the Maj. Op. unconstitutional arrest.” at 157 prophylactic Miranda rule. The Court not (quoting Brown 422 U.S. at ed that if an initial actually confession is 2254). majority Aid the observes that “[t]he coerced, in violation of the Fifth Amendment same is unconstitutionally true of an obtained itself, passes “the time that between confes Maj. Op. statement.” at 157. sions, change place interrogations, true, while it is pointed as Elstad itself out change identity interroga of the (see 1285), 470 U.S. at tors all bear on whether that coercion has taint of an Unconstitutionally obtained state- carried over into the second confession.” 470 may always ment not by be attenuated Mi- U.S. at 105 S.Ct. 1285. But when an warnings, randa this rule is inapplicable initial suppressed confession must be simply when illegality the initial consists of a viola- because it is obtained in violation of Mi tion of prophylactic the Miranda rule. randa, subsequent “[a] administration Mi warnings randa suspect given to a who has It type is true that the of Miranda viola- voluntary but unwarned ordinarily tion Elstad (questioning suspect in custo- should suffice to remove the conditions that dy providing without first warn- precluded admission of the earlier state ings) is somewhat type different from the 314, 105 ment.” Id. at S.Ct. 1285. Miranda violation that occurred here on applied Our court teaching of Elstad in (failing scrupulously to honor invo- Johnson, United States v. 816 F.2d 922- cation of to remain silent obtain- (3d Cir.1987). We wrote: “Absent consti- ing a Miranda questioning waiver and tutionally impermissible eliciting coercion in shortly initially after he right). invoked that confession, an initial the administration of But I see no basis for concluding that Elstad adequate warnings before a subse- equally is not applicable in this context. The quent voluntary confession validates violation that we have held occurred on confession despite the fact that the earlier type violation, 9 was a of Miranda not a confession is inadmissible because the- Mi- any violation constitutional randa preceded it were inade- Indeed, Tyler’s brief did not seek quate.” basis, Id. at 922. On we af- 9 statement on con- defendant, firmed the conviction of the who grounds. stitutional Appellant’s See Br. at provided an initial oral confession that he 37-43. claimed was obtained in violation of Mi- randa, subsequent Applying Johnson, as well as a question written con- Elstad and fession adequate furnished after to be addressed the district court on warnings and a waiver. We held that even if remand is whether the 20 statement was n first, oral sup- preceded by confession had to be a valid Miranda waiver. If it pressed Miranda, second, was, written then the Miranda violation on If the district court finds that initi- ground suppressing for provides no interview, Michigan v. ated the Mos- 20 statement. ley provide suppressing not does basis day. on that made IV. hand, if district court the other finds On ar- presented Although has troopers initiated the 20 inter- words, majority many gument in so view, admissibility of the 20 state- raising interpret as his submissions seems to application on an of the stan- ment will turn to, argument that it is related an additional Michigan Mosley out in v. and the dard set argument distinct from the conceptually but subsequent related cases. argument is just This additional discussed. sup- 20 statement must V. because, Michigan Mosley pressed under v. after he had questioning on If the court concludes that the district rights on previously invoked his Miranda admissible, dis- “scrupulously troopers did not in the first trict court must decide instance Maj. Op. rights. See his Miranda honor[ ]” July 9 whether the admission of the state- concep- argument n. 11. This at 158-59 & ment was harmless error. The two state- argument ad- from the Elstad tually distinct similar, substantively very ments are dependent it on because is not above dressed Ty- incriminated while the earlier statement any of a violation —or existence greater David ler’s brother somewhat even if type of violation —on 9: other statement, Maj. see degree than did later follow why yet explained at has not Michigan questioning suspect, initial more incrimi- the earlier may if the defendant Mosley violation ensue Nevertheless, agree nating to him. I with to remain silent invokes we my colleagues that it is best shortly question thereaf- seek question this at time. Until the resolve this Michigan Mosley, ter. See findings court has made the neces- district (“To permit the continua- sary to decide whether the interrogation after a momen- tion custodial admissible, wheth- we be sure is itself cannot clearly tary would frustrate cessation will ever be er the harmless error issue by allowing repeated purposes of Miranda court, addition, In the trial which reached. the will questioning undermine rounds greater familiarity with presumably has being questioned.”). person case, yet make of this has entire record ruling question, initial harmless error addressing Michigan Mosley this briefing argu- may be that further and it remand, question issue on first question counsel mentation Ty- is whether district court should address may additional provide level district court July 20 inter- troopers ler or the initiated my Accordingly, agree I illumination. Trooper Fenstermacher testified view. remand this case colleagues that should Trooper his recollection that he and findings court for the to the district prison spoke to Graham went to the I have mentioned other determinations that they word from a received because and, necessary, by the if for a decision dis- prison to talk with guard wanted in the as to whether trict court first instance App. contends them. 20 state- the erroneous admission of “questiona- testimony was Fenstermacher’s 12), ment was harmless. Reply Br. at but (Appellant’s ble at best” contrary has been no evidence the record attention. Whether Fenster-

called to our testimony is is a to be believed

macher’s

question of fact that the court should the record of the on remand based on

resolve hearing and court’s assess- credibility.

ment of Fenstermacher’s

Case Details

Case Name: United States v. Willie Tyler A/K/A "Little Man" Willie Lee Tyler

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 15, 1998

Citation: 164 F.3d 150

Docket Number: 96-7776

Court Abbreviation: 3rd Cir.