People v. Storm

CHIN, J., Dissenting.

Few persons would welcome the prospect of suppressing a murderer’s uncoerced confession. Often, and quite possibly in this case, such a confession affords the primary evidence linking the suspect to his crime. But cases do occur in which suppressing such a confession becomes not only an unwelcome and distasteful option but a constitutional necessity. This is such a case. As I will explain (post, at pp. 1046-1047), the majority’s contrary holding will remove any incentive on the part of law enforcement officers to comply with federal constitutional decisions requiring them to terminate an interrogation once the suspect requests counsel.

The United States Supreme Court long ago admonished that once a suspect invokes his right to counsel, further interrogation must cease until counsel is afforded him, or until the suspect himself initiates further communication. (Edwards v. Arizona (1981) 451 U.S. 477, 484-485 [ 101 S.Ct. 1880, 1885 , 68 L.Ed.2d 378 ] (Edwards); Miranda v. Arizona (1966) 384 U.S. 436, 474 [ 86 S.Ct. 1602, 1627 , 16 L.Ed.2d 694 , 10 A.L.R.3d 974 ] (Miranda)) Indeed, Miranda could hardly be clearer on the point: “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” (Miranda, supra, 384 U.S. at p. 474 [ 86 S.Ct. at p. 1628 ].)

*1041 Here, the officers (acting through a police polygraph operator, Redden) read to defendant his Miranda rights but then proceeded to ignore his continual requests for counsel and exacted statements deeply implicating him in his wife’s murder, statements which, as the majority acknowledges, were inadmissible against him. After belatedly realizing that the interrogation was tainted, the officers temporarily terminated the interview, only to resume it, at their own initiative, at defendant’s home two days later. Without providing defendant with counsel or reminding him of his Miranda rights, the officers had no difficulty whatever in exacting from him additional statements confirming his central role in his wife’s murder. As the saying goes, by that time “the cat was out of the bag.”

The majority finds these subsequent statements, made after defendant had already confessed during an unlawful interrogation, were admissible against him because they were voluntary and noncustodial in nature, being made following a “break in custody.” (E.g., In re Bonnie H. (1997) 56 Cal.App.4th 563, 579-585 [ 65 Cal.Rptr.2d 513 ] (Bonnie H.).) The brealc-in-custody cases the majority cites for support are distinguishable, as each case involved defendants whose interrogations were discontinued upon their requests for counsel, without ignoring those requests and eliciting any incriminatory statements.

For example, in Bonnie II., police officers questioned the minor concerning an apparent suicide/murder. Immediately after hearing a recitation of her Miranda rights, the minor requested an attorney, the interrogation stopped, and she was released from custody. Approximately a month later, the officers rearrested the minor and, after being reread her Miranda rights, the minor agreed to talk and made incriminating statements. (Bonnie H., supra, 56 Cal.App.4th at pp. 566-567.) The court found that “there was a good faith break in custody between this [second] police-initiated custodial session and the first. . . .” (Id. at p. 567, italics added.)

The Bonnie H. court observed that “in light of the remedial purpose for the Edwards rule [( Edwards, supra, 451 U.S. 477 )] in preventing police badgering during custodial questioning, many jurisdictions have declined to apply the Edwards rule where a defendant has not been in continuous custody but is instead reinterrogated after being released from custody. [Citations.]” (Bonnie H, supra, 56 Cal.App.4th at pp. 581-582.) As the Bonnie H. court stated, “Once released, the suspect is no longer under the ‘inherently compelling pressures’ of continuous custody where there is a reasonable possibility of wearing the suspect down by police badgering tactics to the point the suspect would waive the previously invoked right to counsel.” (Id. at p. 583.) Bonnie H. indicated, however, that the break in custody should be in *1042 “good faith” and “not contrived or pretextual.” (Id. at p. 584.) The court concluded that the good faith break in custody dissolved the bar to admission of the minor’s statements at the second interview. (Id. at pp. 584-585.)

Similarly, in People v. Scaffidi (1992) 11 Cal.App.4th 145 [ 15 Cal.Rptr.2d 167 ], the defendant requested an attorney upon being arrested and the interrogation ceased. After release on bail, he was rearrested the next day on unrelated charges and agreed to talk to the officers without counsel. (See id. at p. 149.) The court, noting the temporary break in custody, invoked the “noncontinuous custody” exception to the rule that all interrogation must cease once a suspect invokes his right to counsel. The Scaffldi court found that “there is no indication in the record that the break in custody was contrived or pretextual. ... On these facts, we hold that the Edwards ban was dissolved by the break with respect to defendant’s request for counsel during his first custody.” (Id. at p. 152; see also Dunkins v. Thigpen (11th Cir. 1988) 854 F.2d 394, 397, fn. 6 [suggesting break in custody cannot be contrived or pretextual]; Shapiro, Thinking the Unthinkable: Recasting the Presumption of Edwards v. Arizona (2000) 53 Okla. L.Rev. 11, 23-25, 32 (Shapiro) [critically analyzing break-in-custody rule]; Strauss, Reinterrogation (1995) 22 Hastings Const. L.Q. 359 , 386-392 (Strauss) [same].)

By contrast, in the present case, defendant’s first interview was terminated only after he had unsuccessfully requested counsel and thereafter had implicated himself in his wife’s death by admitting he had abetted her suicide. A subsequent two-day break in custody could hardly relieve defendant of the pressure of knowing he had already admitted to participating in a homicide. As defendant himself said near the close of the November 19 interview, “I’ve already told you, told you too much and it’s on tape. . . . ffl] You guys are gonna book me, you’re gonna book me.” Defendant undoubtedly realized that, having let the proverbial cat out of the bag at the November 19 interview, any break in custody would be only temporary until further interrogation, and probable arrest, ensued. Under these circumstances, we should decline to hold that defendant’s statements during the resumed interview, unaccompanied by renewed Miranda warnings or other intervening circumstances such as consultation with counsel, were admissible merely by reason of the two-day break in custody necessitated by the officers’ breach of defendant’s Miranda rights. Instead, our Sims case should govern, and the burden pass to the prosecution to show the taint of the first confession was dispelled by some “intervening independent act” not present here. (People v. Sims (1993) 5 Cal.4th 405, 445 [ 20 Cal.Rptr.2d 537 , 853 P.2d 992 ], cert. den. (1994) 512 U.S. 1253 [ 114 S.Ct. 2782 , 129 L.Ed.2d 893 ] (Sims); id. at pp. 444-447; see also People v. Beardslee (1991) 53 Cal.3d 68, 108-111 [ 279 Cal.Rptr. 276 , 806 P.2d 1311 ]; People v. Spencer (1967) 66 Cal.2d 158, *1043 167-168 [ 57 Cal.Rptr. 163 , 424 P.2d 715 ]; People v. Montano (1991) 226 Cal.App.3d 914, 937-940 [ 277 Cal.Rptr. 327 ] (Montano) [invalidating Mirandized confession given at second custodial interrogation initiated by the defendant, following his inadmissible confession at earlier interrogation]; People v. Harris (1989) 211 Cal.App.3d 640, 650-651 [ 259 Cal.Rptr. 462 ]; People v. Underwood (1986) 181 Cal.App.3d 1223, 1233 [ 226 Cal.Rptr. 840 ]; see also Note, Miranda Right-to-Counsel Violations and the Fruit of the Poisonous Tree Doctrine (1987) 62 Ind. L.J. 1061 [noting distinction between mere failure to read suspect his Miranda rights, and later violating those rights once he tries to invoke them].)

In Sims, we addressed a similar situation, stating the applicable rules as follows: “Previous decisions have acknowledged that where—as a result of improper police conduct—an accused confesses, and subsequently makes another confession, it may be presumed the subsequent confession is the product of the first because of the psychological or practical disadvantages of having ‘ “let the cat out of the bag by confessing.” ’ [Citations.] Notwithstanding this presumption, ‘no court has ever “gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed.” ’ [Citations.] Thus, the foregoing presumption is rebuttable, with the prosecution bearing the burden of establishing a break in the causative chain between the first confession and the subsequent confession. [Citations.]” ( Sims, supra, 5 Cal.4th at pp. 444-445.)

Sims continued by observing that “[a] subsequent confession is not the tainted product of the first merely because, ‘but for’ the improper police conduct, the subsequent confession would not have been obtained. [Citation.] As the United States Supreme Court has explained: ‘[N]ot ... all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ [Citations.] The degree of attenuation that suffices to dissipate the taint ‘requires at least an intervening independent act by the defendant or a third party’ to break the causal chain in such a way that the second confession is not in fact obtained by exploitation of the illegality. [Citations.]” (Sims, supra, 5 Cal.4th at p. 445 .)

The Sims court concluded the defendant’s subsequent statements in that case were “sufficiently attenuated” from the earlier interrogation so as to be free of the taint of the earlier impropriety: The subsequent confession was *1044 elicited only after defendant unilaterally initiated further communication the following day, specifically requesting to speak with the officers. ( Sims, supra, 5 Cal.4th at pp. 445-446.) Furthermore, before the renewed interrogation occurred, the defendant in Sims was readvised of his Miranda rights, and he expressly waived those rights, “thereby further dissipating any taint of the improper police conduct that had occurred the preceding day. (See Oregon v. Elstad (1985) 470 U.S. 298 [ 105 S.Ct. 1285 , 84 L.Ed.2d 222 ] [(Elstad)].)” (Sims, supra, 5 Cal.4th at p. 446 .) Neither of these circumstances was present here.

The majority in the present case argues that Sims’s “tainted product” analysis has been called in question by the high court’s decision in Elstad . Not so. First, Sims was well aware of Elstad and cited it in its opinion. (Sims, supra, 5 Cal.4th at p. 446 .) Second, Elstad expressly limited its holding to unwarned statements and indicated the rule might well be different if the police had exacted a confession after improperly ignoring the suspect’s requests for counsel. (See Elstad, supra, 470 U.S. at pp. 312-313, fn. 3 [ 105 S.Ct. at p. 1295 ].) The majority, relying on People v. Bradford (1997) 14 Cal.4th 1005 [ 60 Cal.Rptr.2d 225 , 929 P.2d 544 ] (Bradford), suggests that Sims’s “tainted product” analysis has been replaced by a simple “voluntary confession” test that asks whether, despite the initial Miranda violation, the subsequent confession was knowingly and voluntarily given.

In Bradford, supra, 14 Cal.4th at page 1040 , relying on Elstad, supra, 470 U.S. at page 309 [ 105 S.Ct. at page 1293 ], we qualified Sims by observing that “if the statement made after an Edwards [( Edwards, supra, 451 U.S. 477 )] violation is voluntary, ‘the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.’ [Citation.]” We noted that Sims had used a more stringent “‘tainted product’” analysis, but we stated that after Elstad “it is not necessary to do so when the statement immediately following the Edwards violation is voluntary.” (Bradford, supra, 14 Cal.4th at p. 1041, fn. 3 .)

Relying on Bradford and Elstad , the majority assumes that the “poisonous tree” and “cat-out-of-the-bag” doctrines have no application to Miranda violations. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1040 [ 90 Cal.Rptr.2d 607 , 988 P.2d 531 ] [acknowledging but not deciding issue].) As we noted in Bradford, supra, 14 Cal.4th at pages 1039 to 1041, Elstad did question whether these Fourth Amendment doctrines necessarily applied to every police interrogation in violation of Miranda . (See Elstad, supra, 470 U.S. at pp. 306-313 [105 S.Ct. at pp. 1291-1296].) But Elstad’s actual holding is not so broad as the majority assumes. Elstad merely held that a suspect who has once incriminated himself in response to “unwarned” but *1045 uncoercive questioning is not thereby forever disabled from waiving his rights and confessing “after he has been given the requisite Miranda warnings.” (El stad, supra, 470 U.S. at p. 318 [ 105 S.Ct. at p. 1298 ]; see People v. Samayoa (1997) 15 Cal.4th 795, 831 [ 64 Cal.Rptr.2d 400 , 938 P.2d 2 ] [“admissions made pursuant to full Miranda waivers may not be suppressed because of prior Miranda violations unless the later admissions were in fact involuntary,” citing Elstad].) In other words, in Elstad , the high court deemed that the proper and timely administration of these warnings presumably would disperse any lingering coercive pressures on the suspect arising from his initial unwarned statement. ( Elstad, supra, 470 U.S. at pp. 311-314 [105 S.Ct. at pp. 1294-1296].)

As Elstad stated, “It is an unwarranted extension of Miranda to hold that a simple failure to administer warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” (Elstad, supra, 470 U.S. at p. 309 [ 105 S.Ct. at p. 1293 ], italics added.)

Significantly, the majority in Elstad expressly distinguished cases involving continued interrogation after a request for counsel, suggesting the rule would be different in such a case. ( Elstad, supra, 470 U.S. at pp. 312-313, fn. 3 [ 105 S.Ct. at p. 1295 ].) As the Elstad majority observed “inapposite are the cases the dissent cites concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation. [Citations.]” (Id. at p. 313, fn. 3 [ 105 S.Ct. at p. 1295 ], italics added.) Accordingly, I seriously question Bradford'' s suggestion that, following Elstad , continued interrogation after invocation of right to counsel is not “inherently” coercive. ( Bradford, supra, 14 Cal.4th at pp. 1039-1040.)

We have uncovered several cases from other states that support the foregoing conclusion regarding Elstad and its limits. (State v. Hartley (1986) 103 N.J. 252 [ 511 A.2d 80, 90-93 ]; State v. Crump (Tenn. 1992) 834 S.W.2d 265, 270-271 ; cf. State v. Fuller (1990) 118 N.J. 75 [ 570 A.2d 429 ].) In Hartley , for example, the New Jersey Supreme Court, in a well-reasoned opinion, stressed the important “qualitative difference” between a mere failure to give Miranda warnings and a failure to honor them once the suspect has attempted to assert them. ( Hartley, supra, 511 A.2d at pp. *1046 90-91.) Hartley carefully analyzed Elstad and explained that its holding was inapplicable to cases involving suspects whose invocation of their Miranda rights was flatly ignored while police continued to interrogate them. (Hartley, supra, at pp. 92-93 .) Hartley likewise recognized that Elstad’s reluctance to apply the “cat-out-of-the-bag” principle was limited to cases involving mere failures to give Miranda warnings and not actual refusals to honor the invocation of those rights. (Hartley, supra, at pp. 96-97 .)

The majority’s analysis is not only unsupported by the pertinent case law, but it is wholly unacceptable as a rule of law because it removes any incentive on the part of law enforcement officers to comply with Miranda and Edwards by terminating the initial interrogation once the suspect requests counsel. Henceforth, thanks to today’s holding, police officers will have carte blanche to ignore Miranda/Edwards, having nothing to lose, and a useable confession to gain, if they simply disregard the suspect’s requests for counsel, continue until they procure an unlawful confession, terminate the interrogation, and resume it soon thereafter in a supposedly “noncustodial” setting, without giving the suspect the benefit of fresh Miranda warnings.

We would be naive to assume that law enforcement agencies will not take advantage of the new evidentiary door the majority’s holding would helpfully open for them. As Justice Brown observed in her concurring and dissenting opinion in a recent search and seizure case, “[f]rom what we know of human nature, this observation seems unassailable: for every inch given, a mile will be taken.” (People v. McKay (2002) 27 Cal.4th 601, 628 [ 117 Cal.Rptr.2d 236 , 41 P.3d 59 ] (cone. & dis. opn. of Brown, J.); see also U.S. v. Orso (9th Cir. 2001) 275 F.3d 1190, 1194, 1196-1197 (dis. opn. of Trott, J.) (Orso).)

As Judge Trott explained in his dissent in Orso , involving a suspect who was tricked by police into making an unwarned statement followed shortly by a warned one, by reason of the Orso majority decision, “the practice of purposefully interrogating a suspect without advising her of her rights may become commonplace. The message from Orso will resonate far and wide: violate the Constitution, do so intentionally, flout the dictates of the Supreme Court, and nevertheless, the targeted plunder of your purposefully lawless behavior can be used against the victim of the glaring official transgression.” (Orso, supra, 275 F.3d at p. 1194 (dis. opn. of Trott, J.).)

Judge Trott continued by observing that “[a]fter our limited en banc court’s decision, there will be reduced incentive for trainers to instruct students at the academies to comply with Miranda . Rather, Orso provides *1047 strong incentive for law enforcement to ignore Miranda , interrogate a suspect without overbearing her will, and then rely on Orso to sanitize the transgression. [f] Indeed, Orso provides bullet-proof armor to—and may embolden—some determined police trainers who have for years sought to circumvent Miranda with impunity. See Charles D. Weisselberg, In the Stationhouse after Dickerson, 99 Mich. L.Rev. 1121 (2001) (cataloging myriad ways police have devised over the years to defeat Miranda)” (Orso, supra, 275 F.3d at p. 1196 (dis. opn. of Trott, J.).) Predictably, the majority’s holding in the present case will provide even stronger disincentives to complying with Miranda .

Let me stress what the present case is not about. This is not a case, such as Orso or Elstad , involving mere failures to give Miranda warnings, or even a failure to terminate questioning once the suspect had invoked his right to remain silent. In this case, the officers exacted defendant’s initial confession after he had requested the assistance of counsel, a far more serious violation of defendant’s constitutional rights, and one which the high court in Elstad expressly found beyond the scope of its holding (see Elstad, supra, 470 U.S. at pp. 312-313, fn. 3 [ 105 S.Ct. at p. 1295 ]). In my view, we must recognize and deal with the taint arising from the earlier unlawful confession. Although the cat-out-of-the-bag cliché may seem trite, it also seems quite apt here, for defendant certainly would not have so readily confirmed his earlier confession had he never made it in the first place, and he never would have made it had the officers honored his initial request for counsel and terminated their interrogation.

I do not propose a rule that would forever bar police from reinitiating an interrogation once a break in custody has occurred. The correct test, under Sims, supra, 5 Cal.4th at pages 444-445, is whether any intervening independent act occurred sufficient to dissipate the taint of the earlier interrogation and demonstrate that the second confession was indeed knowing and voluntary. A reasonably long break in custody would be a relevant factor. So would the fact that the suspect initiated the interview, or that the officers gave fresh Miranda warnings, including the right to counsel’s presence, before the interview commenced. Various other factors are likewise relevant to the inquiry. But the mere fact the reinterrogation occurred in a noncustodial setting should be only one such factor in the voluntariness equation, not the conclusive one.

Here, the “voluntariness factors” strongly point to a finding of involuntariness as a matter of law. Under the circumstances here, including defendant’s repeated and unavailing requests for counsel during his initial interview, his highly incriminating and inadmissible statements made at that *1048 time, and the subsequent failure to readvise him, the subsequent resumption of interrogation two days later clearly was strategically aimed at gathering new, admissible incriminatory statements in a supposedly noncustodial setting without readmonishing defendant of his right to counsel. Having already “let the cat out of the bag” regarding his wife’s murder, defendant’s subsequent admissions to the officers, made without the benefit of fresh Miranda warnings, should be deemed either involuntary (see Bradford, supra, 14 Cal.4th at p. 1040 ) or the tainted fruit of the poisonous tree ( Sims, supra, 5 Cal.4th at pp. 444-447).

Moreover, the record shows no intervening independent act sufficient to dissipate the taint of the earlier interrogation or break the causal chain, or the “inherent pressures” arising from the initial Miranda violation, so that we may say with confidence that defendant’s second confession was voluntary and not obtained by exploiting his earlier admissions. Although the subsequent interview occurred in defendant’s home rather than at the police station, it occurred only two days after the earlier interrogation, and the record fails to indicate that in the meantime defendant had contacted an attorney or conferred with friends or family. (See Montano, supra, 226 Cal.App.3d at pp. 937-939 [stressing importance of such factors as (1) the giving of renewed Miranda warnings, (2) the temporal proximity of the unlawful coercive police tactics and the new confession, (3) the presence of intervening circumstances such as the defendant’s initiation of renewed contact or his ability to consult with an attorney or others, and (4) the officers’ purpose to secure an admissible confession]; see also People v. Beardslee, supra, 53 Cal.3d at p. 109 .) Each of the Montano factors tends to lead to the conclusion that the challenged statement was involuntary and illegally obtained.

As stated in Montano, supra, 226 Cal.App.3d at page 939 , “Based on the circumstances detailed above, the psychologically coercive illegalities of the first interrogation were the motivating cause of the damaging admissions, and of the subsequent confession. [Citations.]” (See also Minnick v. Mississippi (1990) 498 U.S. 146, 153 [ 111 S.Ct. 486, 491 , 112 L.Ed.2d 489 ] [subsequent consultation with counsel is no substitute for presence of counsel at interrogation]; Shapiro, supra, 53 Okla. L.Rev. at p. 32 [“a break in custody followed by reapprehension and the resumption of custodial interrogation would be examined for its potentially ameliorative or coercive effects, and only if the sequence of events was in fact sufficiently likely to have dissipated coercive influences would the presumption [of continuing coercion] be rebutted”]; Strauss, supra, 22 Hastings Const. L.Q. 389 -390 [criticizing break-in-custody rule as based on false assumption that release from custody actually relieves defendant from coercive pressures].)

*1049 Because I believe the taint of the officers’ Miranda violation continued unabated during the supposed noncustodial interview on November 21, I conclude that defendant’s further incriminatory statements confirming his previous inadmissible confession were the tainted fruit of the initial interrogation. As I have observed, the majority’s contrary holding will render wholly ineffective the prophylactic protections afforded by Miranda/Edwards, eliminating any inducement on the part of law enforcement officers to comply with those decisions despite the suspect’s request for counsel. Accordingly, I would reverse the judgment of the Court of Appeal.

George, C. J., concurred.