Petition — Monroe v. Idaho

Supreme Court brief1981

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Text

. Ba ee. ee

August 19,

GIGRAY, MILLER, DOWNEN & WESTON

Arorwers ar Law

Orm axp Deaxnogn Sts. - P.O. Box 640

2 Txturnowe 208-459-0091

CALDWELL, IDAHO 83605

RECEIVED

AUG 2 0 1980

OFFICE OF THE CLERK

SUPREME Court, U.S.

aTrorngrs rorn_Petitioner

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No,

LOUIS ANDREW MONROE,

Petitioner,

Vv.

THE STATE OF IDAHO,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF IDAHO

DEAN E. MILLER and

WM. F. GIGRAY, III

Gigray, Miller, Downen & Weston

Attorneys at Law

9th and Dearborn Streets

Caldwell, Idaho 83605

Counsel for Petitioner

1980

a ee or

ATrorsers at Law

Deazsonw Burpwse

Orm awp Deazvour GSrs. - P.O. Box 640

Teiernows 208-459-0001

CALDWELL, IDAHO 83605

Se Pe re REN Ne I Te AN RE pT

i QUESTIONS PRESENTED

ZI.

Whether police officers are permitted to engage in any

conduct designed or likely to induce a suspect in custody to recant a

: previous request for an attorney.

Iz.

If some forms of inducement are permissible, may police

officers make an explicit request for abandonment, induce close

relatives of the suspect to persuade the suspect to abandon the

194

request and take advantage of a suspect's express desire to protect a

: close friend.

1 PARTIES TO THE ACTION

13 a hie

The caption of the case in this court contains the names of

all the parties.

15)

TABLE OF CONTENTS

Page

17 :

QUESTIONS PRESENTED ---------------------------------- pa

PARTIES TO THE ACTION -------------------~~-~-~---~-~-. 1

os TABLE OF AUTHORITIES ---~----------------~--------~~--.~ 2

soa OPINIONS BELOW -------------------~---------~---+-+---- 2

JURISDICTION -------- ----------- woo ------------- ++ - 2

osl CONSTITUTIONAL PROVISIONS INVOLVED ----------------.. - 3

pe STATEMENT OF THE CASE ~----- -----+------------ w------- 3

ai REASONS FOR GRANTING THE WRIT -----------------~---~... 5

e. THIS COURT HAS NOT PREVIOUSLY

26 ARTICULATED THE STANDARDS WHICH

SHOULD GOVERN EFFORTS BY POLICE

27 OFFICERS TO INDUCE A SUSPECT IN

CUSTODY TO ABANDON HIS PREVIOUS

2 REQUEST FOR AN ATTORNEY

SE GURNEE ICN cveneddinetmetnctiisnmemenddinewamediniuminmein 8

77) ABORMDIR A. < CHINICN BERAN Konic ccocensclinececectimaiiie 9

APPENDIX B - DENIAL OF RE-HEARING -------------------- 16

Orn awp Deansonw Gre. - P.O. Box 640

Teternows 208-459-0001

CALDWELL, IDAHO 83605

np ww

TABLE OF AUTHORITIES

Cases Page

Brewer v. Williams

SOO. ES. SEF CLSTT) qnwmcnscewenccusstocsunonnnn ai’

Massiah v. United States

377 U.S. 201 (1964) -------------~.....--......-. 6

Michigan v. Mosley

423 U.8. 96 (1975) -nnnnmnnmnnn nnn conn ennnnnne 5

Miranda v. Arizona

384 U.S. 436 (1966) ---------....................- ie

People v. Grant

380 N.E.2d 527 (N.Y.App. 1978) ----------.--...... 6

Rhode Island v. Innis -----------~----~-.~....~-~+~~-~-... 6

United States v. Henry -<<----------~-~~...~.....-.....- 6

United States v. Peaster

544 F.2d 359 (9th Circuit, 1976) ---------------. 6

Constitutional Provisions

United States Constitution, Fifth Amendment ---------- 5

United States Constitution, sixth Amendment ---------.- 6

Miscellaneous

Kamisar, “Brewer v. Williams, Massiah,

and Miranda: What is 'Interrogation'?

When Does It Matter?"

67 Geo. L.J. 1, (1978) qnenqneenncee enn nnn eenne 6

OPINIONS BELOW

The decision appealed from is reported at 611 P.2d 1036

(1980) and is reprinted in the Appendix hereto. In denying

petitioner's Motion for Rehearing, the Idaho Supreme Court did not

issue an opinion.

JURISDICTION

The decision of the Idaho Supreme Court is dated May 15,

1980 and was entered on the same day.

=2-

St ee Re eee em gel ee oe na

FO TTL Te AT RT eR TS CRT ee A TS RRO YE Pt SEGAL Re Pt ee

II.

P An order rejecting petitioner's request for rehearing was

issued and is dated June 30, 1980.

Ziz.

5 ‘i ”

Title 28 U.S.C. §1257(3) confers jurisdiction on this Court.

CONSTITUTIONAL PROVISIONS INVOLVED

ZI.

i No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of a

11 Grand Jury, except in cases arising in the land or naval forces, or in

12 the Militia, when in actual service in time of War or public danger;

: is nor shall any person be subject for the same offence to be twice put in

i283 "I jeopardy of life or limb; nor shall be compelled in any criminal case

S33

nee 18 to be a witness against himself, nor be deprived of life, liberty, or

iF 16 property, without due process of law; nor shall private property be

i 7 taken for public use, without just compensation.

5 United States Constitution,

: 18 Fifth Amendment

19 Il.

In all criminal prosecutions, the accused shall enjoy the

21 right to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted

25] with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of

27 Counsel for his defense.

268 United States Constitution,

os Sixth Amendment

3 STATEMENT OF THE CASE

31 The petitioner was arrested in his home during the early

3 morning hours of June 12, 1976 in connection with the shooting death of

his father. While in his home, police officers advised the petitioner

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Oru awp Deazsoux Srs. - P.O. Box 640

Teiernors 208-459-0091

CALDWELL, IDAHO 83605

. So Be. Ss

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10)

of his right to consult an attorney and to have an attorney present

during any questioning. The petitioner stated that he wished to speak

with an attorney before making any statements. The police then

searched the defendant's person and handcuffed him. After a short

lapse of time, the police officers again asked him to make a statement,

and again he refused to do so in the absence of an attorney.

The petitioner was placed in custody at the local jail at

deowekiiiate 6:30 a.m. Shortly thereafter, the police officers

brought petitioner's mother to the jail. The officers asked his

mother "to talk to Andy (petitioner) and see if I can get Andy to talk

to them because he wouldn't talk to them." After the mother's

dimumoons fei efforts to persuade the defendant, the police again asked

petitioner to make a statement, and again he asked for a lawyer.

At approximately 8:00 o'clock a.m. police officers located

the petitioner's roommate, Jim Muller, and took him to the jail,

apparently positioning Muller in a position visible to the petitioner

just outside of the interrogation room where petitioner was confined.

Thereafter, another detective, who claimed not to know that

petitioner had previously requested an attorney, entered the

interrogation room and again asked petitioner to make a statement.

The petitioner asked why the roommate was in the jail and the detective

explained that the police were questioning all persons connected with

the case. The petitioner replied that the roommate was not involved in

the crime. The detective then asked the petitioner to “give me his

side of it." After three prior refusals, the petitioner finally

relented and executed a document euphemistically entitled “Miranda

Waiver". He then made a statement implicating himself in the shooting

of his father.

Prior to trial, the defendant moved to suppress the

statement on the grounds that it was obtained in violation of the Fifth

and Sixth Amendments to the United states Constitution. After an

evidentiary hearing, the motions were denied and the statements were

-4-

i subsequently introduced at trial over objection. The same issue was

presented to the Idaho Supreme Court by the filing of a timely Notice

of Appeal.

REASONS FOR GRANTING THE WRIT

ZI.

THIS COURT HAS NOT PREVIOUSLY ARTICULATED THE

STANDARDS WHICH SHOULD GOVERN EFFORTS BY POLICE

OFFICERS TO INDUCE A SUSPECT IN CUSTODY TO ABANDON

HIS PREVIOUS REQUEST FOR AN ATTORNEY.

This petition raises the question of what procedures are

permissible when a suspect in custody does not invoke his right to

silence, but does invoke his right to an attorney guaranteed by the

Fifth Amendment to the United States Constitution, as interpreted by

Miranda v. Arizona, 384 U.S. 436 (1966). Must the police abandon all

efforts to induce a statement until an attorney is present, or are some

forms of inducement permissible?

This case clearly presents the issue expressly left open in

Michigan v. Mosley, 423 U.S. 96 (1975) where the Court held that when

the right to silence is invoked, police may engage in some forms of

inducement as long as the right to silence is “scrupulously honored."

As observed by Justice White in his concurring opinion, "The question

of the proper procedure following an expression by an individual of

his desire to consult counsel is not presented in this case." 423 U.S.

at 110, n. 2.

The issue presented by this case is both significant and

clouded in confusion. There are indications in the Miranda opinion

that the procedures are different, depending on whether the suspect

invokes his right to silence or right to an attorney. See 384 U.S. at

473-74. As observed in Mosley, the Miranda opinion leaves open the

question of when interrogation may be resumed if the suspect invokes

his right to adhesin. However, when a suspect requests an attorney,

the Miranda opinion arguably forecloses the possibility of resumption

by providing for additional procedures. The opinion appears to

-5-

AtTrogszrs at Law

Deuarsorw Burt»ime

Oru awp Dearsonw Gres. - P.O. Box 640

Tetzernors 208-459-0091

CALDWELL, IDAHO 83605

Y, MILLER, DOWNEN &

require that the police cease interrogation until the attorney is

present, or if an attorney cannot be obtained cease interrogation

altogether.

The meaning of this passage has confused and divided the

lower courts and the existing precedents do not provide any reliable

guidelines. Compare People v. Grant, 380 N.E.2d 527 (N.Y. App. 1978),

with United States v. Peaster, 544 F.2d 359 (9th Circuit, 1976), cert.

den. sub nom. Inciso v. United States, 429 U.S. 1099 (1977).

The issue is complicated by a series of cases decided under

the sixth Amendment commencing with Massiah v. United States, 377 U.S.

201 (1964), and most recently including Brewer v. Williams, 430 U.S.

387 (1977), and United States v. Henry, U.S. , 65 L.Ed.2d 115

(1980). These cases prevent police from “deliberately eliciting"

statements from defendants in the post-indictment stages, regardless

of custody or the presence or absence of compulsion.

There have been numerous suggestions that the “deliberately

eliciting" test should be applied to the pre-indictment, custodial

requests for counsel, rather than the arguably less stringent

“scrupulously honor" test. See Rhode Island v. Innis, U.S.

64 L.Ed.2d 297 (1980), Stevens Dissenting Opinion at 314, n. 7;

Kamisar “Brewer v. Williams, Massiah, and Miranda: What is

‘Interrogation'? When Does It Matter?" 67 Geo. L. J. 1, 78, n.461.

Regardless of whether the standards for pre-indictment and

post-indictment requests for counsel are identical, there is no

question but that there is substantial "tension" between Brewer and

Miranda. See Rhode Island v. Innis, supra, Chief Justice Berger

Concurring Opinion at 313. This tension has understandably produced

conflicting results among the reported cages.

This case provides the Court with the opportunity to resolve

the tension and announce the standard for evaluating police efforts to

induce an abandonment of a previous request for an attorney. The

courts, the police and those representing persons accused of a crime

TELEPHONE 208-459-0091

CALDWELL, IDAHO 83605

Orn awp Deazsogx Gre. - P.O. Box 640

need the guidance which only this Court can provide. For example, the

Idaho Supreme Court in the decision of which review is sought,

candidly confessed the need for further guidance. The Court, in a

portion of the opinion in which all of the justices concurred,

characterized the law as being in a statement of "considerable

turmoil," and said, "The last word as to the exact requirements of the

United States Constitution as interpreted by that case (Miranda) has

yet to be spoken, making our task no easier."

This case additionally provides an appropriate vehicle for

resolving these issues for it involves a broad range of attempts by

police officers to induce an abandonment of a request for an attorney.

There was a specific request for abandonment; the police used close

relatives of the suspect to persuade him to abandon his request; and

the police took advantage of the suspect's express desire to protect a

Close friend. Constitutional principles are often of such breadth

that they are not self-effectuating. They only take on meaning when

applied to the facts of specific cases. The variety of police efforts

to induce abandonment in this case provide the Court with the

opportunity to illustrate the application of the correct standard.

CONCLUSION

Based upon the reasons and authorities cited herein,

petitioner respectfully requests that this Court issue its writ of

Certiorari to the Supreme Court of Idaho.

~*~

~~ a eee ee —- eee — _ . ——=

Dated this 19th day of August, 1980.

Respectfully submitted,

GIGRAY, MI'.LER, DOWNEN & WESTON

ao on

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Ld. f] (pO

8 wm. F,/ Gigray, /III ne

Members of Fi

9 Attorneys fot Petitioner

Residing at Caldwell, Idaho

APPENDIX A

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1980 Opinion No. 95

IN THE SUPREME COURT OF THE STATE OF - IDAHO

Case No. 12532

THE STATE OF IDAHO, )

Plaintiff-Respondent, } Boise December 1979 Term

vs. ; Filed: May 15, 1980

LOUIS ANDREW MONROE, : R. H. Young, Clerk

)

Defendant-Appellant.

Appeal from the District Court of the Third Judicial

District of the State of Idaho, Canyon County. The Honorable

Edward J. Lodge, District Judge.

Appeal from verdict of guilty and judgment of conviction

of first degree murder. Affirmed.

William F. Gigray, III, of Gigray, Miller,

Downen & Weston, Caldwell, for appellant.

Honorable David H. Leroy, Attorney General,

Lynn E. Thomas, Deputy Attorney General, and

Howard Carsman, Deputy Attorney General, for

respondent. Mr. Carsman argued.

BISTLINE, J.

The defendant-appellant, Louis Andrew Monroe, here

egbecia his conviction, on January 17, 1977, of first degree

murder, based’on two assignments of error: first, the admission

of evidence seized as a result of the entry by police officers of

the defendant's home early on the morning of June 12, 1976; and

second, the admission of a confession given by the defendant that

same morning. We hold that the search was justified by exigent

circumstances and that the defendant waived his right to counsel,

and therefore affirm.

On June 12, 1976, at approximately 3 a.m., Canyon

County Sheriff's Department and firemen responded to « call

reporting a car on fire in a church parking lot on Sunnyridge

SF, rey ry Lr re o .

Road south of Nampa. While the firemen were putting out the

blaze they observed a body in the trunk of ‘the vehicle. Sergeant

Roy Mullen radioed the dispatcher and suhioned the investigator

on call, the sheriff, the coroner, and the prosecuting attorney.

The license plate on the car was checked and the owner was listed

as Lee Monroe, who was reported to live less than half a mile

from the parking lot. Lee Monroe had five days earlier reported

a burglary of his home to the sheriff's office.

After Detective Anderson, Dr. Donndelinger, Prosecutor

James Morfitt, and several sherif£' s office personnel arrived at

the scene, Anderson instructed Sergeant Mullen and Officer Stout

to proceed to the Monroe residence. Mullen and Stout found the

house almost completely lit and the interior visible from the

outside, since there were no curtains drawn except for one bed-

room, which was dark. From the Street they could see no movement

or anything else of interest on the inside. Outside near the

back of the house, however, they observed a smoldering object

which appeared to be a mattress. The two officers proceeded to

circle the outside of the house in opposite directions. Mullen

examined the mattress in the rear of the house, and observed a

piece of fabric on top of it, considerably burned. He also

observed at the back door \bloodstains and the Signs that a body

might have been taken out the back door. Mullen met Stout at the

front of the house and told him not to enter the house; Mullen

then returned to the parking lot to confer with other officers.

Sheriff Nourse, on his way to the parking lot, stopped at the

Monroe residence and was briefed by Officer Stout, who was then

told to secure the area.

At the parking lot the body was further examined and a

spent .22 caliber projectile found. It was also learned that the

Monroe residence was rented from the Stuarts, who lived next

door. Morfitt drove to the Stuart residence; he awakened them

and asked them to help identify the body. When Mr. Stuart left

with Prosecuting Attorney Morfitt to go to-the parking lot,

Nourse and Detective Prescott proceeded to the’ Monroe residence.

Stout reported that he had seen and heard nothing since Mullen

left. The officers knocked loudly at both the front and back

doors and announced themselves, but got no answer. They then

obtained a key from Mrs. Stuart and let themselves in. After

looking briefly at the lighted rooms they knocked on the one

bedroom into which they had not been able to see from the out-

side, and entered, finding the defendant on the bed, apparently

asleep. They woke him and told him to get up and get dressed and

talk to them in the living room.

There is some conflict at this point between the testi-

mony of Sheriff Nourse and Detective Prescott. Nourse testified

at the preliminary hearing that he noticed guns in the bedroom

and warned the other officers to be aware of that. Nourse testi-

fied that the defendant responded by pointing to a .22 rifle in

the closet--in plain view--and stating, “That is the only gun you

will need." Deputy Prescott, on the other hand, testified that

this statement came only after the defendant had been taken into

the Savane soem and then went back to the bedroom to get some

different clothes.

In any event, the defendant was brought into the living

room, advised of his Miranda rights, and asked whether he wanted

to make a gtetemuae. He said that he thought he should see a

lawyer before making a statement. The defendant was then placed

under arrest and told to get his clothes. When Prescott noticed

bloodstains on the clothes defendant had put on, he asked whether

he had worn them the day before; defendant said yes, and the

clothes were confiscated.

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_~ -_ 7

. Defendant was handcuffed and searched and again asked

whether he wanted to make a statement, and he again said that he

would after he had been advised by his attorney. ‘At approxi-

mately 6:30 a.m. the defendant was transported: to the Canyon

County Sheriff's Office, Criminal Investigation Division (CID).

Detective Anderson and Prosecuting Attorney Morfitt

then discussed the need for a panei warrant to photograph the

inside of the house and collect evidence. Anderson then pro-

ceeded to photograph the outside of the house.

Jim Muller, another occupant of the Monroe residence,

returned home at approximately 8 a.m. and found several police

cars outside, and several officers inside the house. He was

informed of the events and was transported at about 8:30 to the

CID, where the defendant was being held.

In the meantime, at approximately 5:30 a.m. a Sheriff's

deputy went to the home of Vernita Monroe (the defendant's mother

who lived separately from her husband and son), awakened her, and

asked her to come down to the CID. There she talked with Officer

Prescott and was told that her husband was dead and that the

officers Suspected foul play. She was then told for the first

time that her.son might be involved, and that he was being held

upstairs. “Mrs. Monroe's testimony, uncontroverted as we read the

record, is as follows:

(Mrs. Monroe): ". . | He (Prescott) said he

wanted me to talk to Andy and see if: I could get

Andy to talk to them because he wouldn't talk to

them.

"Q. Are you sure that is what he asked you?

"A. Yes. I said, "Well, I cannot afford to

hire an attorney for Andy.' I said, ‘He

is entitled to an attorney, isn't he?' And

Prescott said, 'Yes, we will get him an

attorney.' And I said, ‘Well, shouldn't

he have a right to an attorney before he is

questioned?’ And he said, ‘Well, it would

make it a lot simpler if we could get him

to talk to us.’ And he said would I talk

to Andy and see if I could get Andy to talk

to them." —

After the defendant had had sone. conversation with his mother

Detective Prescott asked if he were ready to give a statement.

He said, "I want a Lawyer before I talk to you. " “Detective

. Anderson entered the room shortly thereafter, ‘and asked if the

defendant would talk. The defendant said he would, and began

asking Anderson why Muller, whom he could see just outside the

room where he was being questioned. was there. Anderson testi-

fied as follows:

"I told him that we were going to be talking

to everybody that was: remotely involved in

this situation and he indicated that Mr. Muller

_ did not know anything about it, did not have

anything to do with it; something of that

nature, and I then asked him if he would like

to give me his side of it (or what did take

place and he said, 'Yes. .

Anderson later testified that he was not aware that the defendant

had previously requested an attorney.

) Defendant then executed a full written Miranda waiver

and was interviewed by Anderson, first informally, and then on

tape (Exhibit 13). He confessed to shooting his father on the

morning of June 11, and that evening putting the body in the car,

and finally setting the car on fire. Thereafter the defendant

ans arraigned on charges of first degree murder. At 10 a.n. on

June 12 Sheriff Nourse filed an affidavit in Support of a warrant

to search the Monroe residence. The warrant was issued and

served on Muller at the Monroe residence at 11:30 a.m. A variety

of items were then seized, photographed and inventoried, including

clothes belanging to the defendant stained with blood and a .22

caliber rifle (the murder weapon).

The defendant moved to suppress all of the evidence

which had been obtained as a result of the warrantless search,

and also to suppress the confession as both a fruit of the search,

and as a violation of 5th and 6th Amendment rights. The trial

judge denied the motion to Suppress except with respect to the

a ae

nw ae

clothing -which Officer Prescott had questioned the defendant

about before taking him to the stationhouse.

The first question raised in this appeal is whether the

warrantless entry and search of the home of the defendant was

Sisséusbte, and therefore permissible idee the Fourth Amendment.

As the appellant has pointed out, warrantless searches are per se

unreasonable, unless they fall within one of the defined excep-

tions to the warrant requirement. Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Harwood;

94 Idaho 615, 495 P.2d 160 (1972). . Here, however, the eters at

has invoked the recognized exception for emergencies or "exigent

Under this exception, in the words of Judge (now

circumstances.

Chief Justice) Burger, "(t]he need to protect or preserve life or

avoid serious ‘injury is justification for what would be otherwise

illegal absent an exigency or emergency."' Wayne v. United

States, 318 F.2d 205, 212 (D.C. Cir. 1963) (Burger, J. concur-

ring). The test to be applied in determining whether or not an

emergency exists is whether the facts as then known to the police,

together with reasonable inferences drawn therefrom, ‘warrant a

man of reasonable caution in the belief' that the action taken

was apprepriete.” Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868,

1880, 20 L.Ed.2d 889 (1968). |

The facts which were available to the police officers

at the time they made their entry into the defendant's home were

» -

- as follows: the police were confronted with a house in. a quiet

residential district with its lights ablaze at 4 a.m., with a

mattress smoldering in the tack yard, bloodstains near the back

entryway, with the knowledge that a car containing an apparent

murder victim had been set on fire recently in a parking lot less

than a half mile away, and the car being registered to the same

person, Lee Monroe, who was renting the house. Under these

circumstances the police were justified in making a warrantless

entry into the house in order to investigate the possibility of |

’ additional wictine. possible suicide, or other fires. While it

might be argued in retrospect. that immediate action was not

required, “the business of policemen and firemen is to act, not

to speculate or meditate on whether the report ievpmeceie.»

Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963)

(Burger, J., concurring). We hold that the entry was reasonably

made. |

Appellant has dibwucna ici characterization of the

police action as a response to an emergency. He points out that

while the police arrived at the house and conducted their initial

investigation shortly after the discovery of the car in the

parking lot, they delayed actual entry into the house until more

than an hour later... Appellant contends that, while an entry into

the house at the time of the initial investigation would have

been justified, the delay of more than an hour belies the claim

of emergency. However, the case authority does not support this

argument. In People v. Hill, 528 P.2d 1 (Cal. 1974), for :

example, a homicide victim was brought to a hospital, and sheriff's

deputies sess se informed of the location of the shooting. It was

more than two hours later that the police conducted a warrantless

search at the scene of the homicide. The California Supreme

Court upheld the constitutionality of the search, noting that

“[a] warrantless entry of a dwelling is constitutionally per-

missible where the officers’ conduct is prompted by the motive of

preserving life and reasonably appears to be necessary for that

purpose." Id. at 19.

The delay in itself is not critical, therefore; the

question remains, however, whether the lapse of time meant that

“immediate action" was no longer required. Where the officers

could not say that anything had happened in the time since they

first arrived, was there a potential risk that something might

yet happen in the time it would have taken to procure a.warrant?

We believe the answer to that question Must bé in the af firne-

tive. We agree with the statement of the trial court made in

denying the motion to Suppress: "(I]t wasn't until there was an

accumulation of evidence that the officers really were in a

position to determine that there were exigent or emergency situa-

tions possibly existing, and when they finally did act in the

manner which they did I think they had not only the right to act

but had a: duty to enter the premises. "To adopt appellant's line

of reasoning would bias police decisions toward precipitate

action rather than considered deliberation. In the present case,

the police waited until they had verified and expanded their

initially limited information; they verified the identity of the

murder victim and the cause of death, they learned who else might

be living in the home, and they made preparations for a more

careful and less intrusive entry into the home. Police officers

should be permitted to use their best judgment in deciding how to

approach what may be emergency situations possibly fraught with

danger to other unknown persons. While the claim of emergency

must be sdviieiniaes to insure that it is not.mere pretext for

entries and searches that otherwise fall under the requirement

for a warrant, nonetheless courts should, as did the trial court

here, avoid second-guessing police decisions made in legitimate

belief that‘life may very well be at stake. "People could well

die in emergencies if police tried to act with the calm delibera-

tion associated with the judicial process." Wayne v. United

States, 318 F.2d 205, 212 (Burger, J., concurring).

IIL. ;

The manner in which appellant's confession was obtained

is more troublesome. The admissibility of confessions by criminal

defendants has been in considerable turmoil since Miranda v.

ani 384 U.S. 436, 86 S.Ct.’ 1602, 16 L.Ed.2d 694 (1966). The

‘Last: word es to the exact requirements of Pres United States —

Constitution, as interpreted by that case, has yet to be spoken,

making our task no easier. However, we can at least trace the

evolution of the law thus far. Miranda required that custodial »

interrogation of suspects be conducted in a manner which respects

the defendant's right to remain silent, and his right to the

assistance of counsel. Its major innovation was to require that

suspects be advised of their rights, and that they be able to

assert those rights to potential interrogators:

"Once warnings have been given, the subsequent

procedure is clear. If the individual: indicates

shown that he intends to exercise his Fifth Amend-

ment privilege; any statement taken after the person

invokes his privilege cannot be other than the

product of compulsion, subtle or otherwise. Without

the right to cut off questioning, the setting of

in-custody interrogation operates on the individual

to overcome free choice in producing a statement

after the privilege has been once invoked. If the

individual states that he wants an attorney, the

interrogation must cease until an attorney is

present. At that time, the individual must have

~ an opportunity to confer with the attorney and to

have him present during ~ subsequent questioning.

If the individual cannot obtain an attorney and he

indicates that he wants one before speaking to

Police, they must respect his decision to remain

Silent." 384 U.S. at 473-74, 86 S.Ct. at 1627-28.

(Footnote omitted. )

Unfortunately, however, the "subsequent etenodiunn® has

turned out to be far from "clear." Once a Suspect has asserted

his Miranda”rights, may he be persuaded to waive them? The U. Ss.

Supreme Court recently considered whether the defendant's asser-

tion of his right to silence prevented any further questioning at

any time. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46

L.Ed.2d 313 (1975), a suspect was advised of his Miranda rights

and asserted his right to silence; several hours later he was

again advised of his rights and questioned about an unrelated

crime. In the course of that questioning he made incriminating

statements which were used against him at trial. * The Supreme

Court held that a literal interpretation of the instructions in

Miranda was impossible since it would lead to absurd results:

either no questioning at any further time could be permitted, or

else the interrogation could resume following only a “momentary .

respite." Rejecting either literal interpretation, the court

held:

"A reasonable and faithful interpretation of

the Miranda opinion must rest on the intention of

the Court In that case to adopt 'fully effective

means . . . to notify the person of his right of

silence and to assure that the exercise of the

right will be scrupulously honored. ..._|' 384

U.S., at 479, 86 S.Ct., at 1630. The critical

safeguard identified in the passage at issue is

a person's ‘right to cut off questioning.' Id.,

at 474, 86 S.Ct., at 1627. Through the exercise

of his option to terminate questioning he can

control the time at which questioning occurs, the

subjects discussed, and the duration of the inter-

rogation. The requirement that law enforcement

- authorities must respect a person's exercise of

that option counteracts the coercive pressures of

- cur off queseieetsees om Vserupulously: aieered;'=

423 U.S. at 103-104, 96 S.Ct. at 326.

Mosley thus established that the Suspect's initial

invocation of the right to remain Silent could later be waived,

so long as the "right to cut off questioning" was "scrupulously

honored." However, it left open the question of whether a sus-

pect's invogation of his right to the assistance of counse? could

similarly be waived, and whether such waiver may be prosecution-.

induced. In a footnote to the above quoted language in Mosley,

the court did note: ae |

“The dissenting opinion asserts that Miranda

established a requirement that once a person has

indicated a desire to remain silent, questioning

may be resumed only when counsel is present. ...

But clearly the Court in Miranda imposed no such

=30-

- requirement, for it distinguished between the pro-

cedural safeguards triggered by a request to remain

silent and a request for an attorney and directed

that “the interrogation must cease until an attor-

ney is present’ only '[i]f the individual states

that he wants an attorney, '" aye,

Id. at 104 n.10, 96 S.Ct. at 326 n.luU. And in an earlier footnote, |

the court in Mosley reiterated the language in Miranda stating

that when a suspect requests an attorney, “interrogation must

cease until an attorney is Present." 423 U.S. at 101 n.7, 96

S.Ct. at 325 n.7. To add further support to the inference from

Mosley! that the request for an attorney should prevent question-

ing until an attorney is present, Justice White in his concurring

opinion states that, whereas the assertion of the right to remain

silent might lapse with the passage of time, the. invocation of

the right to an attorney is overcome only by the provision of an

attorney to the suspect:

"The Court [in Miranda] showed in the very next

paragraph, moreover, that when it wanted to create

& per se rule against further interrogation after

assertion of a right, it knew how to do so. The

Court there said "[i]f the individual states that

he wants an attorney, the interrogation must cease

until an attorney is present.'" Justice White's -

emphasis.] 423 u.- at I09-10, 96 S.Ct. at 329

(White, J., concurring).

And in a footnote Justice White commented further:

a "The question of the Proper procedure following

expression by an individual of his desire to con-

sult counsel is not presented in this case. It is

sufficient to note that the reasons to keep the

lines of communication between the authorities and

the accused open when the accused has chosen to

make his own decisions are not present when he in-

dicates instead that he wishes legal advice with

respect thereto. The authorities may then com-

municate with him through an attorney. More to

the point, the accused having expressed his own

view that he is not competent to deal with the

authorities without legal advice, a later decision

at che authorities’ insistence to make a statement

without counsel's presence may properly be viewed °

with skepticism.” Id. at 110 nee 96 ete. at 329

Gas mphasis added. )

Despite hints in these opinions that Miranda should be

interpreted to create a per se rule against the questioning of a

“ila

ww). -

suspect who has requested an na” abe an attorney is

present, it is by no means certain that such a rule in fact has

been or will be adopted. A more’ recent case, involving somewhat

different issues, was Brewer v. Williams, 430.U.s. 387, 97 S.Ct.

1232, 51 L.Ed.2d 424 (1977)." There Williams, a murder suspect,

had consulted an attorney before he surrendered himself to police,

and had been repeatedly advised not to talk to them. During a

three-hour drive from Davenport, Iowa, where Willians was taken

into custody, to Des Moines, where he was to be arraigned, Williams

conversed with the arresting officers unaccompanied by his attor-—

ney. Shortly after-the drive began, one of the officers cide ,

what has come to be called the "Christian burial speech," in

which he pointed out that an impendin; snowstorm ‘might make it:

difficult for the murder victim to be found and given a "Christian

burial." The officer stated that he thought Williams might be

1 A still more recent case, but one not dealing with the issue

presented in the present appeal, is North Carolina v. Butler,

ee |g: OR CiOe, | 1958 (1979). Butler was advised by

when advised that he need not either talk to the agents or sign

the form, he said "I will talk to you but I am not signing a

form."" When advised of his right to a lawyer, Butler sai noth-

ing. Butler thereafter made incriminating statements which were

introduced at trial. The U.S. Supreme Court reversed the ruling

of the North’ Carolina Supreme Court that Butler's failure to give

an explicit oral or written waiver of his rights precluded the

"An express written or Oral statement of waiver of the

right to remain silent or of the right to counsel is usually

strong proof of the validity of that waiver, but is not

inevitably either necessary or sufficient to establish

waiver.. The question is not one of form, but rather whether

the defendant in fact knowingly and voluntarily waived the

rights delineated in the Miranda case." 99 §.Ct. at 1757.

Butler cannot control a proper resolution here simply

because "[Ta]t no time did (Butler) request counsel or attempt to

terminate the agent's questioning." Id. at 1756. The question

before this court is whether, and under what circumstances, a

suspect, after having requested counsel, can be said to have

knowingly and intelligently waived that right. -

able to help thes with finding the victim's body, but said he

didn't want Williams to answer him, but just to "think about it"

while they drove. After the lapse of some time Williams asked

them if they had found the victim's shoes yet, and then said he

could retrieve them from a gas station where he had hid them.

Some time later he told them he would lead them to the body,

which he did. |

The U.S. Supreme Court held that the "Christian burial

speech" was a form of interrogation, and that it violated Williams’

right to the assistance of counsel announced in Massiah v. United

States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2¢ 246 (1964).

Again, Williams is somewhat different than the case at bar, since

it involves the decision of a Suspect to waive his right to an

attorney after he has consulted with one, and it further involved

the issue of whether Williams was being "interrogated" by police

or had simply volunteered his statements and incriminating assis-

tance. But, given the Opportunity to make a definitive Statement .

of the circumstances under which a Suspect could waive his right

to counsel, the Supreme Court merely said "(t]he Court of Appeals

did not hold, nor do we, that under the circumstances of this

case ee could not, without notice: to counsel, have waived

his rights” ‘onder the Sixth and Fourteenth Amendments. It only

held, as do we, that he did not." 430 U.S. at 405-06, 97 S.Ct.

at 1243. (Footnote omitted.) And in the footnote the court

cited cases which have adopted the per se rule as well as cases

which have rejected it.

Of the cases in the latter category, respondent here

relies upon United States v. Pheaster, 544 F.2d 353 (9th Cir.

1976.), cert. denied sub nom. Inciso v. United States, 429 U.S.

1099, 97 S.Ct. 1118, 51 L.Ed. 546 (1977). Pheaster was taken

into custody by the FBI, and after being advised of his Miranda

-13-

3 FF}

2 OS ee ee ee ae

he yo

tlatice requested an attorney. During the trip to the police

station, FBI agents described the Strength of their case against

Pheaster, whereupon Pheaster acknowledged his role in the crime.

The Court of Appeals for the Ninth Circuit found that Pheaster's

Statements to the FBI were admissible, holding that "a waiver of

rights under Miranda can occur despite an earlier demand to have

an attorney." 544 F.2d at 367-68. The court stated:

"Our examination of the record in this case

has revealed that the decision regarding waiver

was a close one; yet, on balance, we believe that

the district court was correct in deciding that

the Government had met its "heavy burden' in _

establishing Pheaster's Waiver. Because it was

not possible for the F.B.I. agents who arrested

Pheaster to proves him with an attorney at the

moment that he demanded one, the key question is

whether the failure of the agents to sit mute

during the ride to county jail, where an attorney

could be provided, mandates the exclusion of

Pheaster's statements. On the particular facts

of this case, we are convinced that such exclu-

sion was not mandated."

Id. at 368. The holding in Pheaster was adopted by the Ninth

Circuit sitting en banc in United States v. Rodriguez-Gastelum,

569 F.2d 482 (9th Cir.), cert. denied, 436 U.S.-919, 98 S.ct.

2266 (1978). In that case the court found that a per se rule

would reach too far, having the effect of “imprison[ing] a man in

his privileges." Adams v. United States, ex rel. McConn, 317

U.S. 269, 280, 63 S.Ct. 236, 87 L.Ed. 268 (1942). |

While in many ways a per se rule would provide greater

ease of administration (not requiring a case-by-case determina-

tion of whether a particular waiver was genuine), and while it

would provide clear guidance to police as to what they should do

nia a lawyer is requested--they should Stop questioning and

‘ntiieatd the accused the opportunity of securing an attorney--the

trend seems to be against a per se rule. "[T]he prevailing

conclusion anong the courts of appeals is that a waiver is

possible even after counsel has been requested." United States

v. Charlton, 565 F.2d 86, 90 (6th Cir. 1977). Nonetheless. in

order to find a waiver of the defendant's right to counsel, we

“must find that the defendant's right to counsel was “scrupulously

bbnered;* in an analogous fashion to the requirement in Mosley

that the defendant's right to silence must be scrupulously

iunored. ,

IV.

The writer of this opinion to this point is of the view

that the evidence in the record cannot support the trial court's

finding that the defendant “voluntarily, knowingly, and intelli-

gently" waived his right to counsel. My view as to the admis -

sibility of the confession is not shared by the other members of

the Court, and therefore the conviction must be affirmed

DONALDSON, C.J.

I agree with the foregoing opinion down to Part IV

where it states the confession of defendant should have been

ruled inadmissible at the suppression hearing. The trial court

‘made the factual determination essential to its ruling that the

defendant's confession is admissible, and we are not at liberty

to reverse that decision where the trial court's findings are

supported by. substantial evicence. See State v. Warden, 100

Idaho 21, 592 P.2d 836 (1979); State v. Chapple, 98 Idaho 475,

476, 567 P.2d 20, 21 (1977). Specifically the trial court found

that the mother's. conversation with the defendant did not bring

about the defendant's decision to retreat from the assertion of

his right to counsel and his right to remain silent. The trial -

court did find that defendant, on seeing Jim Muller, and because

of seeing him, reached his own unaided determination to talk with

the officers concerning his father's death. From a review of

the record, the trial court also found that after the defendant

indicated a desire to talk, he was once again advised of his

alGe

- + y: » lf a” waa .

Miranda warnings by the police and signed a waiver of those

rights only after Officer Anderson had reviewed with him each

of the items mentioned in the waiver. * .

Concurring in Parts i, II, and III of the opinion of a9

Justice Bistline, I am unable ee concur in Part IV, and for

reasons above stated I would affirm the conviction.

The judgment of conviction is affirmed. | ,

BAKES and McFADDEN, JJ., and SCOGGIN, J. PRO TEM,

concur. | oh :

BISTLINE, J., dissenting as to the admissibility of the |

confession.

In the context of the Present case it is clear that,

despite repeated requests for an attorney, the police neither

made any effort to obtain one for the defendant and did not |

afford him any opportunity to do so; nor did they cease in their

efforts to persuade him to submit to questioning in the absence

of an attorney. The defendant's mother was picked up by sheriff's

2 The trial court Indicated in some detail its reasons for

considering Monroe's confession to be voluntary: ,

"I think the whole thing that cromgeees the confession

was, as the State has indicated, the fact that the defendant

viewed Mr. Muller's presence in the jail area and wanted to

know why he was there and he told him he was there for

to give the statement to the law enforcement officers. I

Miranda warnings and taking the other precautions they did

might have taken advantage of him as far as catching him in

a weak moment; the fact he saw a friend and didn't want to

get the friend involved.

“I think when you take the totality of the circumstances

again and see that they did not immediately question him,

that they again sat him down and reminded him of his righte,

had him sign it with the knowledge his mother was resent

there and he was certainly aware of the fact that e was

entitled to an attorney because he had claimed that privilege

on at least three occasions, that he made the confession

voluntarily and that would be my decision at this point."

a}6<

- *

» i

deputies -at her home at 5:30 a.m. and, without explanation, was

ordered to accompany the officers to the stationhouse. There she

was -informed of her husband's murder and eventually of her son's

og 4.4

seife ew):

: arrest. Officer Prescott asked her to talk with the defendant

* pene

3 bacause he wouldn't talk to them directly, and they hoped she

might let them know what he said. Mrs. Monroe asked whether her

‘gon shouldn't have an attorney before he was questioned, but the

response was that "it would make it a lot simpler if we could get

him to talk to us." The defendant told his mother he would not

tell her anything, because "la}E I tell you then they can talk to

you and then they could question me about it. ... If I don't

tell you anything they can't make you tell them."

The trial court found that the decisive factor in the

defendant's decision to make a statement was the presence of his

roommate, Jim Muller. "I think the defendant on his own decided

that he did not wane him [Muller] involved and that he made the

decision to give the statement to law enforcement’ officers. I

think that the law enforcement officers might have taken advantage

of him as far as catching him in a weak moment; the fact he saw a

friend and didn't want to get the friend involved."

The trial court found that the defendant's confession

was given voluntarily; “voluntariness," however, is not the

standard. The trial court's finding of "voluntariness" was a

necessary but not a.gufficient condition for admitting the

confession:

“While the traditional determination of volun-

tariness had largely turned on a case-by-case ;

consideration, Miranda required exclusion of any

statements stemming from custodial interrogation

unless the prosecution demonstrated compliance with

its specific, prophylactic safeguards. Thus, if

law enforcement officers fail to — the specified

warnings before interrogation or fail to follow its.

guidelines during interrogation, the statement de-

rived therefrom 4 be suppressed, even though it

is otherwise ‘wholly

voluntary." Michigan v. Mosley,

423 U.S. 96, 99-100, 96 S.Ct. 321, 46 LEd. 2a 313

-17-

’

. (1975); Michigan v. Tucker, 417 U.S. 433, 443, 94

S.Ct. 23 .Ed.20 182 (1974) ."" ys: v. Charlton,

565 P. 2d 86, 89 (6th Cir. 1977), é

The level of scrutiny required where a defendant allegedly waives

rights initially asserted must he higher than the scrutiny re-

quired where a suspect never asserts those rights. As Justice

White stated in his concurring opinion in Mosley, "[t)he accused

having expressed his own view that he is not competent to deal

with the authorities without legal advice, a later decision at

the authoritics' insistence to make & statement without counsel's.

presence may properly be viewed with skepticism." 423 U.S. at

110 n.2, 96 S.Ct. at 329 n.2. While most courts have held that

it is possible for the rignt to counsel, even though initially

asserted, to be waived "voluntarily, knowingly, and intelligently,"

(Miranda, 384 U.S. at 444, 86 S.Ct. at 1612), it must be borne in

mind that “courts indulge in every reasonable presumption against

waiver." Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232,

1242, 51 L.Ed.2d 424 (1977).

} In light of this heavy burden, it is impossible for me

to conclude that Monroe's waiver of his right to counsel was made

"véluntarily, knowingly, and intelligently." In addition to the

admission by.. officers that they never attempted to honor Monroe's

request by counsel, it also appears that by the time the taking

of his statement commenced, a magistrate should have been avail-

able in the court house. There is also the use of the defendant's

mother to sai to persuade him to make a statement, without having

honored his” Tequest for counsel, and the trial court's finding, ~

amply supported by the record, that the defendant's confession

was triggered by the defendant's perception that his roommate was

being implicated in the crime. A very strong factor militating

against the waiver finding is the singular fact, unremarked upon

by the trial court, that Monroe was taken out of lock-up in order

that he could be exposed to the rather prolonged conversation

which he had with his mother, with some regard for the additional

fact that by the cime of its conclusion, Jim Muller, too, had

been brought into the custodial area.

A comparable case was Presented to the New York Court

of Appeals in People v. Grant, 380 N.E.2d 257 (N.Y.App. 1978).

There the defendant,

"after being arrested a

requested the assistanc

later, without having c

was readvised of his ri

a statement because,

nd advised of hi

e of counsel.

onsulted an attorney, he

ghts, waived them and made

s rights,

Ten minutes

in the interin,

the arrestit.g

officer had given him a fuller ‘explanation' or

‘understanding’ by advising him of the Strength of

the case against him." Id. at 258.

The court reversed Grant's conviction

» noting that even though

the questioning of Grant was terminated at his request for

counsel and he was taken from the room, "([n]othing ;

to assist the defendant in obtaining counsel."

- Was done

After reviewing

the case history from Miranda to Mosley, the New York Court of

Appeals found that a defendant's request for counsel must be

considered as something different than Standing on the right to

remain silent, which after a discreet interval, may be met by

renewed police attempts to secure a statement.

If Mosley re-

quires at a ihindmum that the defendant's right t

be "scrupulously honored," the request for counsel deserves more

respect than the continuation of the police efforts to change the

Suspect's mind:

"In prior decisions we have

cannot be said to have respecte

request for counsel when they s

dalondoix of his rights after h

ported to the station house

N.E.2d 384 (N.Y. 1978))), or

with the tearful mother of a co

they ‘had previously afforded him an Opportunity to

attempt to reach an attorney and subsequently read-

- vised him of his ragets (People v. Jackson, [359

N.E.2d 677 (N.Y. 19 6)]). Here the arresting

officer's conduct was completely inconsistent with

held that the police

d the defendant's

ng readvise the

e has been trans-

(People v. Buxton, [374

en they confront him

defendant, although

ae Peis

SRLS CRE IR me abi c *)

CaP ee an a Dy

eee ue a!

‘the defendant's request because he took no steps

to afford the defendant an Opportunity to obtain an

attorney's assistance, and, in fact, immediately

made comments which undermined the defendant's deci-

sion to consult an attorney. In addition, unlike

the circumstances in Mosley, here there was no

Significant break in the interrogation, and no

change of pala pes place or subject matter of the

interrogation (see Michigan Vv. Mosley, supra, 423

U.S. p. 104, 96 S.Ct. a2ty, “In'short on this record

it cannot be said that the authorities "scrupulously

honored’ the defendant's request for counsel before

The case before us is readily distinguishable from

those cases in which a waiver has been found. In Pheaster, for

example, heavily relied upon by the State, the court made’ the

following comment:

"It is critical to focus on the fact that Pheaster

agreed to cooperate with the agents after he had

been in the car for only fifteen to twenty minutes--

a point not challenged in his brief. Thus, although

he was in the car for a longer’ period, his coopera-

detention. This is not a case in which there was

an intentional delay in providing an attorney In

the hope that the suspect would yield to pressure

and recant his demand for an attorney.” come

added.

Similarly, in United States v. Rodriguez-Gastelum, supra

the, court stated:

"We understand that the interrogating officer may

not badger the suspect or bring pressure intended

to” induce a change of mind. Nor can he coerce the

suspect into reconsidering an assertion of his |

right to counsel." 569 F.2d at 488.

It is noteworthy that Monroe's "decision" to retreat

from insisting on his right to counsel and his right to remain

silent was made at a time when psychologically most vulnerable to

police Suggestion. The police had taken him into custody at 6:30

a.m., and from the record presented it appears that he had been

without sleep that night. He was taken into custody and accord-

ing to his mother,

“his eyes looked real funny, sort of glassy like

he wasn't really quite aware of what was going on *%

and when I asked him things sometimes he acted

. like he didn't quite hear me and I would talk to

him say two or three times to him and then he

would act like he knew I was talking to him, and

he would make some comment but he -cidn't look

like he was really with it." .

The police tactics used to dissuade the appellant from standing

on his insistence that he not talk without having seen counsel,

either alone, or combined with an apparent debilitated mental

state of mind, raise insurmountable obstacles to a finding that

the appellant's asserted constitutional rights were validly

7 waived. }

I would therefore reverse the judgment of conviction

and remand for a new trial.

rege mete dey MO mem ge 0 pn

"NRO card? me aget on ay

+ remem ne ENR OY. emery tere <a: Lowe

I There was also testimony from a defense wpsychiatrist, thats...

the defendant was probably under the influence of .LSD and alcohol.,,...

at the time the murder was committed, and .thatczhe was also,under -y:+.,

the influence of alcohol at the time the confession was obtained.

This may account for the defendant's appearance.

we "*

oe) me SE Een

APPENDIX B

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SUPREME COURT

STATE OF IDAHO

Boise, Idaho

illiam F. Gigray, III

Attorney at Law }

Caldwell; SUPREME COURT NO. 12532

Hon. David H. Leroy

Attorney General

Boise; June 30, 1980

Howard W. Carsman

Deputy Attorney General

Boise

THE STATE OF IDAHO,

Plaintiff-Respondent,

LOUIS ANDREW MONROE,

Defendant-Appellant.

In the above entitled cause the Court has today denied

Appellant's Petition for Rehearing.

1, R. HH. Young, Clerk of the Supreme Cour’

of the State of idaho, do hereby certify that te

above is 8 true and correct copy of the ‘

entered in the sbove entitied cause end now on

record in my office. y

WITNESS my hend andi the Seatet thie Court 717

Deputy CLERK OF

STATE OF IDAH

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.