United States v. Jody Myesha Orso

O’SCANNLAIN, Circuit Judge,

with whom Circuit Judges KOZINSKI, KLEINFELD, and GOULD join,

specially concurring in the denial of full court en banc rehearing:

Judge Trott’s impassioned dissent from our denial of full court en banc rehearing in this case makes clear that he disapproves of the methods that the police employed which produced Jody Orso’s Miran-dized confession in this case. His views are perfectly reasonable. And who knows — if this court were free to rewrite Fifth Amendment law I might well agree with him. But we are not free to rewrite the law. And that is where I part company with Judge Trott and his merry band of dissenters. 1

To begin, let us remember that this court does not sit as a kind of super- *1191 Citizens’ Police Review Board, creating some set of federal common-law police regulations for local law enforcement officers in this circuit by distinguishing, on a case-by-case basis, “good” police conduct from “bad.” Instead, our only proper role in this context is to determine whether police conduct has in some way rendered the admission of evidence at a criminal trial violative of a defendant’s constitutional rights. In short, not everything that this court might consider “bad” (or “improper”) is accordingly unconstitutional. Cf. Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir.1991) (recognizing that even though “state officials may have misused their authority,” and that the court “certainly [did] not condone the acts of the police in this instance,” “[t]he plaintiffs, however, have not established a violation of any constitutionally recognized right”).

Turning to the constitutional issue we review in this case, I respectfully suggest that, to the extent that Judge Trott is concerned that a Miranda violation does not require a “fruit-of-the-poisonous-tree” analysis when it leads to a second, voluntary, warned confession, his quarrel is not with Orso, but with the Supreme Court’s decision in Elstad. In Elstad, the Court held that it simply does not matter that a statement is procured because an earlier statement was elicited from a suspect in violation of Miranda. So long as the earlier statement was not involuntary due to unconstitutional coercion, the subsequent, voluntary, warned statement is still admissible — without regard to whether the subsequent statement was “tainted” by the earlier statement. Elstad, 470 U.S. at 309, 105 S.Ct. 1285 . True, Elstad’s rationale relied heavily on the fact that, when Elstad was decided, Miranda was not understood to be a constitutional rule. Id. at 305, 105 S.Ct. 1285 (“Respondent’s contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as ‘fruit of the poisonous tree’ assumes the existence of a constitutional violation”). And true, the Court’s recent decision in Dickerson v. United States, 530 U.S. 428 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000), calls this premise into question. See id. at 444 , 120 S.Ct. 2326 (“[W]e conclude that Miranda announced a constitutional rule.... ”). I can therefore understand Judge Trott’s desire to take this opportunity to tease out of Elstad an entirely new category of police activity, “improper tactics,” that gives rise to a fruit-of-the-poisonous-tree analysis. 2 Indeed, he was disposed to do so long before Dickerson. See Pope v. Zenon, 69 F.3d 1018, 1024 (9th Cir.1996) (Trott, J.) (hypothesizing that “the tactic of using pre-advice interrogation to open up a suspect” is “precisely what the Supreme Court had in mind in [Elstad ] when it exempted ‘deliberately coercive or improper tactics in obtaining the initial statement’ from the ordinary rule that subsequent statements are not to be measured by a ‘tainted fruit’ standard, but by wheth *1192 er they are voluntary”) (emphasis added), overruled, by United States v. Orso, 266 F.3d 1030 (9th Cir.2001) (en banc).

Perhaps the most crucial point that Judge Trott makes in his dissent, though, is that “[w]hat emerges from Dickerson is unmistakable.” Infra, Dissent from Denial at 17408. Quite so — but not what Judge Trott envisions. What emerges from Dickerson is that Elstad , as explicated in the limited en banc panel’s opinion, is good law; unless a first-obtained, un-Mirandized confession is involuntary, a later-obtained, Mirandized confession is not subject to a fruit-of-the-poisonous-tree analysis. See Dickerson, 530 U.S. at 441 , 120 S.Ct. 2326 (“Our decision in [Elstad ] ... simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment.”). Admittedly, the Court’s analysis of this point in Dickerson (all one sentence of it) is less than fully satisfying. But faced with a clear statement of the law from the Supreme Court, our duty is clear: our court must follow. See State Oil Co. v. Khan, 522 U.S. 3, 20 , 118 S.Ct. 275 , 139 L.Ed.2d 199 (1997) (“Despite what Chief Judge Posner aptly described as Albrecht’s ‘infirmities, [and] its increasingly wobbly, moth-eaten foundations,’ ... [t]he Court of Appeals was correct in applying [it] despite disagreement with Albrecht, for it is this Court’s prerogative alone to overrule one of its precedents.”); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”); see also Spector Motor Serv., Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir.) (L. Hand, J., dissenting) (“Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant; on the contrary I conceive that the measure of its duty is to divine, as best it can, what would be the event of an appeal in the case before us.”), vacated sub nom. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101 , 65 S.Ct. 152 , 89 L.Ed. 101 (1944).

The constitution neither ordains nor establishes this Inferior court as an oracle of future Supreme Court holdings. Instead, the role that the Founders assigned us is a more humble one, that of simply following the Supreme Court’s dictates and applying them to the inhabitants of the Nine Western States. Because that is precisely what our limited en banc opinion in Orso does, I concur in the order by which my colleagues decide to follow and to apply El-stad, and to refuse full court en banc rehearing in this case.

. It is telling that not even a single member of our limited en banc court thought that we could ignore controlling Supreme Court precedent; even those joining in the concurrence recognized that Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985) controls. See United States v. Orso, 266 F.3d 1030, 1040 (9th Cir.2001) (en banc) (Paez, J., concurring) (“With some reluctance, I ... concur in the conclusion that, under [Oregon v. Elstad], the district court need not suppress the confession Orso made after she was read, then waived, her Miranda rights.’’). Thus, at least on its face, the limited en banc decision *1191 reflects an 11-0 vote on the merits. (It may no longer, in fact, reflect an 11-0 vote, given that Judge Hawkins, who joined Judge Paez’s concurrence, has subsequently joined in Judge Trott's dissent from denial of full court en banc rehearing.)

. It seems that, at least for now, Judge Trott is content to give content to his newfound category by defining it as "wittingly and purposefully” asking questions before giving Miranda warnings. See infra, Dissent from Denial at 17408. Fine for today, but why stop there? Why not make "improper tactics” coextensive with “anything that two out of three judges on a panel don't like,” effectively converting this Article III court into the aforementioned super-Citizens' Police Review Board? Regrettably, I see no principled limit to the unwarranted judicial foray into the propriety of law enforcement tactics that Judge Trott's dissent advocates.