Opposition Brief — Tennessee v. Crump

No. 92-222

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

STATE OF TENNESSEE, .

Petitioner,

vs.

MELVIN CRUMP,

Respondent

Petition for Writ of Certiorari

to the Supreme Court of Tennessee

BRIEF FOR RESPONDENT IN OPPOSITION

Edmund L. Carey, Jr.

NEAL & HARWELL

Attorneys at Law

2000 Dominion Tower

150 Fourth Avenue North

Nashville, Tennessee 37219

(615) 244-1713

Counsel of Record

Donald E. Dawson

RAY & HOUSCH

Attorneys at Law

211 Third Avenue North

P.O. Box 2643

Nashville, TN 37219

(615) 256-2111

ot

QUESTION PRESENTED

Whether the Fifth Amendment and/or the Tennessee Constitution,

Article I, Section 9, require suppression of a confession obtained

by repeated coercive questioning initiated by police after a

suspect in custody has invoked his right to remain silent.

ii

TABLE OF CONTENTS

OPINIONS BELOW ..+ + © © © «© © @ «

JURISDICTION .. + + © «© «© © «© © « «

ADDITIONAL CONSTITUTIONAL PROVISION INVOLVED

STATEMENT

I. Basis of Constitutional Violations

II. Concession of Michigan v. Mosley violation

III. Opinions of the Tennessee Supreme Court .

in State v. Crump and State v.

A. State v. Crump ....

S State vw. Gpat . «+ «

ARGUMENT 7 e . . * . = . . . o =

I. There is an Adequate and Independent Basis

for the Decision Below in State Constitutional

Law.

II. In Any Event, the Federal Law

for the Result.

CONCLUS I ON om o . . a * 2 * > . s 7

APPENDIX OF RESPONDENT .... + « »

+

.

iii

Smith

Issues Below .

Were Decided Correctly As an Alternative Basis

Page

11

14

AR-1

TABLE OF AUTHORITIES

Page

Cases

Brown v. Illinois, 422 U.S. 590 (1975) gee ce ke ey ee 7

California v. Freeman, 488 U.S. 1311 (1989)

(O°Conner, Ciromit Justices) ...s««stesete es 06 ee 11

\

Coleman v. Thompson, U.S... 4ili S.CE. 2546,

118 L.Ba@.2@ 660 (1901) . «© «© «es es © © &© © &© © & ee 11

State v. Hartley, 103 N.J. 252, 511 A.2d 80 (1986) tae -6 6, 12

Martin v. State, 1 Tenn. Crim. App. 282, 440

S.Ws 2G 624 (1968) J . . . . . o + . . * - . . . 8

Michigan v. Long, 463 U.S. 1032 (1983) ok « hecuee 10

Michigan v. Mosley, 423 U.S. 96 (1975) “a a oe oe a o>, 2a, de

Miranda v. Arizona, 384 U.S. 436 (1966) ...... 4, S, 6, 8,

ia, a3, i4

O’Brien v. State, 221 Tenn. 346, 426 S.W.2d 507 (1968) eer ee 6

Oregon v. Blstad, 470 U.S. 298 (1968) . . .« «ss 6 « By BD 22

State v. Chandler, 547 S.W.2d 918 (Tenn. 1977) . + * 7

State v. Crump, No. 01-S-9011-CRO0098 slip op.,

S.W.2d (Tenn. May 18, 1992)... . ae ae

9, 140, ii

State v. Smith, No. 03-S-01-9107-CRO0054 slip op.

S.W.2d (Tenn. May 18, 1992) ... he @¢ G6, Te Be

9, 10, il

United States v. Bayer, 331 U.S. S32 (i947) . . . © ww ew 8

Wong Sun v. United States, 371 U.S. 471 (1963) ... 14

iv

U.S. Const. Am. V.. -

U.S. Const. Am. VI. .

U.S. Const. Am. XIV

Tenn. Const. Art. I, §8

Tenn. Const. rt. I, §9

Tenn. Const. Art. I, §13

Tenn. Const. Art. I, §16

28 U.S.C. §1257(a)

Sup. Ct. R. 14.1(k) (ii)

Sup. Ct. R. 15.1 .. .~

Tenn. R. Crim. P. 5(a)

Statutes

No. 92-222

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

STATE OF TENNESSEE,

Petitioner,

vs.

MELVIN CRUMP,

Respondent

Petition for Writ of Certiorari

to the Supreme Court of Tennessee

BRIEF FOR RESPONDENT IN OPPOSITION

OPINIONS BELOW

Only the opinions of the courts below in the instant case have

been provided in the Appendix and Supplemental Appendix filed by

Petitioner.

The opinion of the Supreme Court of Tennessee in the companion

case of State v. Smith, No. 03-S-01-9107-CRO0054 slip op. (Tenn.

May 18, 1992), decided the same day as the instant State v. Crump

and whose content fully explains the grounds for the Crump decision

below, is reprinted in the Appendix of Respondent attached (App.

Resp.) .' Both the Smith and Crump opinions are designated for

publication in S.W.2d ‘

JURISDICTION

The judgment of the Supreme Court of Tennessee was entered on

May 18, 1992. The Petition for Certiorari was filed within ninety

(90) days of that date. The jurisdiction of this Court purportedly

was invoked under 28 U.S.C. §1257(a). However, as Respondent’s

Brief will show, there is an adequate and independent basis for the

decision below in the constitutional law of the State of Tennessee,

which deprives this Court of jurisdiction and would render merely

advisory any opinion this Court might render on the federal

constitutional issue contained in the Petition.

ADDITIONAL CONSTITUTIONAL PROVISION INVOLVED

Tenn. Const. Art. 1, § 9

Right of the accused in criminal prosecutions. -- That in

all criminal prosecutions, the accused hath the right to be heard

by himself and his counsel; to demand the nature and cause of the

accusation against him, and to have a copy thereof, to meet the

witnesses face to face, to have compulsory process for obtaining

witnesses in his favor, and in prosecutions by indictment or

presentment, a speedy public trial, by an impartial jury of the

1 The State v. Smith companion opinion, which Petitioner

did not include in either the Appendix or Supplemental Appendix, is

being provided to the Court by Respondent in compliance with

Supreme Court rules 14.1(k) (ii) and 15.1.

2

County in which the crime shall have been committed, and shall not

be compelled to give evidence against himself.

STATEMENT

Respondent is an inmate in the Tennessee Department of

Correction. In September, 1988, he was arrested on suspicion of

escape and of murder in Nashville, Davidson County, Tennessee, and

later indicted on charges of escape, assault and first-degree

murder. The present appeal arises from rulings on a pretrial

motion to suppress. No trial has been held.

Although the terse Statement of the Case in the Petition

(written without a single citation to the Record on Appeal or to

any of the opinions of the courts below) misstates numerous issues

of fact,* Respondent calls the Court’s attention to only those

misstatements of fact or law that might mislead the Court as to

those issves that might properly be before it in the event a writ

of certiorari should issue:

I. Basis of Constitutional ‘Violations

The Petition asserts that Respondent argued below only that

police failed to "scrupulously honor" his invocation to the "right

to [remain] silen(t]," that his statements were involuntary, and

that he "invoked his Sixth Amendment right to counsel" at the

eo te

. E.g., Petitioner states that Respondent was taken by

"Detective Moore and another officer" in a squad car to the scene

of the escape, but all testimony and the findings of all courts

below were that three officers accompanied Respondent. Compare Pet.

4 with App. 3-4.

beginning of the tape-recorded statement at police headquarters.

Pet. 3. In fact, Respondent argued at all stages below, beginning

at the pretrial suppression hearing, that the police actions

violated his separate and specific State and federal constitutional

rights not "to give evidence against" (State) and "not to be a

witness against" (federal) himself; his separate and specific State

and federal constitutional rights to counsel when questioned in

custody;> his separate and specific State and federal

constitutional rights not to have involuntary confessions used

against him (state "law of the land" and federal “due process") ;

his Miranda rights; and his rights under Rule 5(a), Tenn. R. Crin.

P., to be brought before a magistrate without undue delay.

Of those categories of argument, only one was ruled upon by

the Supreme Court of Tennessee. That court specifically declined

to rule on the involuntariness (due to physical coercion) and right

to counsel claims (State or federal). App. 4-5 nn.1,2. The Rule

5(a) argument has not been reached by any court below.‘

With respect to the self-incrimination rights (State and

federal), Respondent at all stages below specifically relied upon

: Respondent’s argument that he was entitled to a cessation

of questioning upon asking for counsel during custodial

interrogation was, of course, as a federal matter, an invocation of

the Fifth Amendment, not the Sixth Amendment (although this aspect

of the Fifth Amendment serves both Fifth and Sixth Amendment

purposes). Equally obviously, these rights are made applicable to

the States through the Fourteenth Amendment due process clause.

’ Petitioner has indicated below that it is prepared to go

forward with this prosecution regardless of the appellate outcome

on the suppression issue. Even on the suppression issue, three of

the asserted grounds have not been dealt with as a final matter

(and one of them not at all, even by the trial court).

4

Article I, Sections 8, 9, 13 and 16 of the Tennessee Constitution.

Counsel devoted significant portions of written and oral argument

to the State constitutional provisions (particularly Article I, §

9) as a proposed independent basis for decision. Following oral

argument, counsel for Respondent supplied the Supreme Court of

Tennessee an invited post-argument written submission on certain

state issues. As discussed below, the Supreme Court of Tennessee

responded to these arguments.

II. oncession o c an v. s

The State conceded both at the pretrial hearing and on appeal

that any statements made by Respondent prior to the second set of

Miranda warnings should not be admitted at trial under the

"scrupulously honored" principle of Michigan v. Mosley, 423 U.S. 96

(1975). Transcript of Proceedings, Vol. 3, at 108-110.

III. Opinions of the Tennessee Supreme Court

Obviously, this Court has the two companion opinions before

it for its own review. It may be helpful to point out a few

features of these opinions, however.

A. State v. Crump

The Tennessee Supreme Court found that Respondent replied to

the Miranda warnings by saying either "I don’t have anything to say

right now," or "I don’t have anything to say.” App. 2,12.

The court, as had both inferior courts below it, found that these

words invoked the relevant State and federal self-incrimination

rights. It then found that continued interrogation in the face of

that invocation was a violation of constitutional dimension. App.

12. For those holdings, the court relied on Q’Brien v. State, 221

Tenn. 346, 350, 426 S.W.2d 507, 508 (1968) and State v. Hartley,

103 N.J. 252, 273, 511 A.2d 80, 91 (1986). Hartley in turn relied

on both New Jersey and federal constitutional law.

At the outset of its legal discussion, the Supreme Court of

Tennessee held that "the test of voluntariness for confessions

under Article I, §9 is broader and more protective of individual

rights than the test of voluntariness under the Fifth Amendment.

See State v. Smith, S.W.2d (Tenn. 1992)."

App. 7.

Having thus found that the police violated Respondent’s State

and federal constitutional rights, the court turned to whether the

"subsequent taped confession was involuntary and whether it must be

excluded as the tainted ‘fruit’ of the constitutional violation."

6

App. 14. The court conducted its inquiry "[g]juided by the

voluntariness factors set forth in State v. Smith, S.W. 2d

at ,“ and found that “at the time of his confession, the

defendant was still laboring under the psychological impact of

having already confessed and ‘let the cat out of the bag’ during

the drive." To determine whether the “cat out of the bag" problem

had "vitiate[d] voluntariness," the court further examined the

circumstances of the "stream of events" and held that the State had

“failed to successfully rebut the presumption that the illegally-

obtained, initial statements given on the drive also tainted the

subsequent confession." For this analysis, the court again (twice)

cited State v. Smith, using blank pinpoint citations to be filled

in later. Pet. 15-16.

The court held further that the subsequent confession was

tainted as "fruit of the poisonous tree" resulting from the initial

constitutional violations, citing Brown v. Illinois, 422 U.S. 590,

603-04 (1975) and State v. Chandler, 547 S.W.2d 918, 920 (Tenn.

1977). App. 16. A two-justice dissent agreed that Respondent’s

"invocation of his right to remain silent was not scrupulously

honored," but argued that the record did not’ establish

"deliberately coercive or improper tactics," and therefore

concluded that the “police failure" did not "rise to the level of

a constitutional violation" of either the Fifth Amendment or

Article I, § 9. App. 18.

B. State v. Smith

In this companion case, the Supreme Court of Tennessee

unequivocally rejected, as part of the constitutional law

explicating Tenn. Const. Article I, §9, the portion of the decision

of this Court in Qregon v. Elstad, 470 U.S. 298 (1985) that dealt

with the "cat out of the bag" theory:

We believe that adherence to the spirit and principles of

Article I, §9 of the Tennessee Constitution requires us to

recognize, as a matter of Tennessee constitutional law, the

inherent reasonableness of the underlying premise expressed in

(United States v.] Bayer[{,331 U.S. 532 (1947)] and Martin [v.

State, 1 Tenn. Crim. App. 282, 291, 440 S.W.2d 624, 628

(1968)]. Consequently, we dispute the rationale of the Elstad

decision that, absent coercion in eliciting an initial

confession, psychological pressures and other pressures

flowing from that confession can never lead a defendant to

give subsequent, involuntary, incriminating statements.

State v. Smith, App. Resp. 10-12. The court then relied upon

Justice Brennan’s dissent in Elstad, 470 U.S. at 328, 335, and

created a rebuttable presumption (simultaneously employed in Crump)

that the prosecution must overcome in subsequent-confession cases,

including those involving the mere absence of initial Miranda

warnings, as in Elstad and Smith. App. Resp. 12. The Court was

clear and unequivocal:

Our ruling today that an illegally-

obtained, initial confession is presumed,

subject to rebuttal, to have tainted any

subsequent confession, even if the later

statement is preceded by proper Miranda

warnings, expressly rejects the United States

Supreme Court majority holding in Elstad v.

Qregon.

App. Resp. 16.

Henceforth, in cases involving confessions given subsequent to

an initial, illegally obtained confession, Tennessee courts must

decide whether an accused has voluntarily confessed and made "a

free and informed choice to waive the State constitutional right

not to provide evidence against one’s self." App. Resp. 12-13

(emphasis added). To address these issues, courts are to examine

nine specific factors. Id. 13. The court below explained its

reasoning at several points. See, e.g., id. 8, 11, 16-17.

In Smith, the court found that the subsequent confession was

given knowingly and voluntarily. In Crump, as noted above,

application of this same new standard on the same day produced the

opposite result. The court noted that it was "guided by the

voluntariness factors" set forth in Smith and cited Smith for its

rebuttable-presumption approach (adopting the Brennan dissent in

Elstad) to the "cat out of the bag" issue. App. 15-16.

ARGUMENT

Petitioner’s arguments are utterly specious that the decision

below should be presumed to rely on federal law under Michigan v.

Long, 463 U.S. 1032, 1041 (1983). Pet. 11-12 n.1l. It will be

obvious from the discussion above that this lengthy jurisdictional

footnote in the Petition is littered with misstatements.

Petitioner, never citing specifically to the companion Smith

decision, deploys a meaningless jurisdictional analysis of

numerology oddly bereft of legal analysis, claiming that the

majority opinion in Crump "cites a total of eleven federal cases

and four state cases, presumably to demonstrate that the State

courts have followed federal law in the past." Id. Equally

without foundation are the Petition’s statements that the court

below "did not give any explanation of the basis for this greater

protection" of State constitutional law, "gave no indication" that

these State protections commanded the decision reached, and "felt

compelled by the federal constitution" to suppress the confession.

It is clear from the decision below, particularly when read in

light of the companion Smith opinion to which it cites extensively

and specifically, that the adequacy and independence of the State

law ground is "clear from the face of the opinion," and thus the

presumption of Michigan v. Long is inapplicable. 463 U.S. at 1040-

41. The “plain statement" doctrine of Long is applicable when a

state court "chooses merely to rely on federal precedents as it

would on the precedents of all other jurisdictions." Id. No such

10

practice was followed below. The court in Crump (and in Smith)

made it clear that it was rejecting an aspect of federal law to

craft independent state constitutional law. This clear expression

that the decision was “alternatively based on bona fide separate,

adequate, and independent grounds" precludes jurisdiction under

Long. Id. at 1041. See Coleman v. Thompson, U.S.

, 111 S.Ct. 2546 115 L. Ed.2d 640, 657-58 (1991); California

v. Freeman, 488 U.S. 1311, 1313-14 (1989) (O’Connor, Circuit

Justice).

In the face of such clear fashioning of independent State

constitutional law, any review of federal law issues by this Court

ultimately would result only in the issuance of an advisory

opinion. See Freeman, 488 U.S. at 1314.

Even if this Court were to assume jurisdiction, the federal

law portion of the decision below represents only a careful and

correct application of the Oregon v. Elstad and Michigan v. Mosley

case law. The Supreme Court of Tennessee specifically adverted to

an exchange of footnotes in the Elstad opinion between the majority

and the principal dissenter in distinguishing the circumstances in

Elstad from those in the present case. App. 13 (citing Elstad, 470

U.S. at 312-13 n.3 (majority) and 346 n.28 (Brennan, J.,

dissenting) ).

In noting this distinction, the court below was following

other courts who similarly have perceived the difference between a

11

simple police failure to administer Miranda warnings and a "failure

to honor, after they have been asserted, the constitutional rights

those warnings are designed to secure." App. 13 (quoting State v.

Hartley, 103 N.J. at 272, 511 A.2d at 90).

Contrary to Petitioner’s assertions, the court below did not

hold, and it was in no way the case, that the police conduct here

was a mere "technical violation" of Michigan v. Mosley, 423 U.S. 96

(1975) and Miranda v. Arizona, 384 U.S. 436 (1966). App. 15-17.

In Mosley this Court labeled "absurd" any argument that police

interrogators could be allowed to resume interrogation after only

a "momentary respite" following a suspect’s invocation of his right

to remain silent:

To permit the continuation of the custodial

interrogation after a momentary cessation

would clearly frustrate the purposes of

Miranda by allowing repeated rounds of

questioning to undermine the will of the

person being questioned.

423 U.S. at 102.

What the officers actually did in the present case was to

deliberately subject Respondent to an immediate and prolonged

period of incommunicado interrogation during which they hoped and

expected he would give them the incriminating responses they

sought. According to police testimony, Respondent was handcuffed

throughout the psychologically coercive ride-around that, among

other things, retraced the alleged route followed by the

perpetrator of the crimes charged. App. 4. Further according to

police testimony, the officer to whom Respondent invoked his rights

informed his supervisor of that fact, but the supervisor (who later

12

could not recall being so informed) took Respondent out in the

squad car with two other officers for the ride-around. App. 3;

Pet. 3. The first officer, upon observing Respondent when the

foursome returned, noted signs of "mental abuse." App. 5,15. The

supervising officer described other visible psychological effects

upon Respondent as a result of trickery and other psychological

ploys used as interrogation | techniques. App. 4,15. Another

officer testified that the purpose of the tape-recorded statement

was merely to "get more detailed information" in light of the

statements made during the ride-around, and to get those statements

on tape. Tape Recording of Preliminary Hearing, Exhibit 12 to

Hearing on Motion to Suppress Statements. Finally, it must be

remembered that, although what was said was not ruled upon by the

court below, it is undisputed that at the precise point in the

Miranda warnings that preceded the tape-recorded statement at which

the availability of a lawyer is described, Respondent clearly said

something which the police heard but flatly ignored with an

admonition not to interrupt. App. 27, 42. Respondent has insisted

that the tape reveals he said "I want one now." Petitioner’s

position has been that the tape reveals Respondent said "I don’t

want nairn." Thus, rather than being "inaudible," Pet. 4, the

interruption to the tape-recorded warnings is "poorly audible,"®

and absolutely establishes that Respondent interrupted the warnings

5In an effort to aid explication of the tape, Respondent below

proffered to the intermediate appellate court and to the court

immediately below sworn statements from a skilled linguist

attesting that her expert analysis supports Respondent’s version of

what he said.

13

when told he could have a lawyer. Such an interruption (even if

its content cannot be deciphered presently with confidence) at a

minimum imposed a duty upon the police to seek clarification. The

interruption further casts a cloud over any attempt to use that

second set of Miranda warnings to establish either a knowing and

voluntary waiver of his rights by Respondent, or a break in the

exploitation of evidence sufficient to establish attenuation under

Wong Sun v. United States, 371 U.S. 471 (1963).

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Edmund L. Carey, Jr.

NEAL & HARWELL

Attorneys at Law

2000 Dominion Tower

150 Fourth Avenue North

Nashville, Tennessee 37219

(615) 244-1713

Counsel of Record

Donald E. Dawson

RAY & HOUSCH

Attorneys at Law

211 Third Avenue North

P.O. Box 2643

Nashville, TN 37219

(615) 256-2111

September 1992

14

APPENDIX OF RESPONDENT

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE,

Plaintiff-Appellee,

vs.

HOSIE VAN SMITH,

Defendant-Appej lant.

For Appellant:

David B. Hill

Newport, Tennessee

FOR FUBLICATION

Filed: May 18, 1992

COCKE COUNTY CIRCUIT

HON. J. KENNETH PORTER,

JUDGE

S/C No. 03-S-01-9107-CR

00054

For Appellee:

Charles W. Burson

Attorney General &

Reporter

Cc. Anthony Daughtrey

Assistant Attorney Generai

Nashville, Tennessee

OPINION

AFFIRMED.

ANDERSON, J.

The primary issue raised on this appeal is whether

the defendant's confession, obtained after proper administra-

tion of Miranda warnings, is inadmissible at trial because a

prior incriminating statement was obtained in violation of

the Fifth Amendment of the United States Constitution and

Article I, § 9 of the Tennessee Constitution. The initial

incriminating statement made by the defendant, Hosie Smith,

before any Miranda warning was given to him was suppressed.

A later confession was obtained after a search had revealed

cocaine in Smith's possession and after the police had read

Smith his Miranda rights. The admissibility of the confes-

sion was challenged on the grounds it was involuntary and

tainted as the fruit of the first unwarned incriminating

statement given in violation of the Federal and State Consti-

tutions. After the trial court overruled the defendant's

motion to suppress his confession, Smith was convicted of

possessing more than 30 grams of cocaine with the intent to

deliver, sentenced to 30 years incarceration, and fined

$10,000.00. The conviction was affirmed by the Court of

Criminal Appeals, after that court determined that the

confession was given knowingly and voluntarily, and was thus

admissible at trial. We likewise conclude that the confes-

sion was knowing and voluntary on the grounds set out herein

and, therefore, affirn.

FACTUAL HISTORY

On October 28, 1988, Officers Mike Hannan and Terry

Thomas of the Tennessee Highway Patrol were traveling west on

I-40 in Cocke County when they clocked a Ford Taurus station

AR-2

wagon traveling east at 84 miles per hour in a 65 miles-per-

hour zone. As a result, the officers turned around in the

median and, at approximately 5:20 p.m., stopped the vehicle

that was being driven by Kellie Alisha Jones and in which the

defendant was riding.

After stopping the car, Officer Hannan approached

the driver's side of the vehicle and asked Jones for her

license and registration. Jones was able to produce her

license, but was unable to find the vehicle's registration.

When Officer Hannan asked Jones to whom the car belonged, she

responded that her mother, Renee Preston, owned the car.

Because it was raining, Officer Hannan then asked

Jones to exit her vehicle and accompany him to his squad car

while he wrote out a traffic citation. Jones agreed and

exited her vehicle, after asking Smith to keep looking in the

glove compartment for the vehicle's registration.

While Smith was looking for the registration,

Officer Thomas, who had approached the passenger's side of

the car during Officer Hannan's conversation with Jones,

asked Smith questions regarding ownership of the car and the

couple's destination. Smith told Officer Thomas that the car

belonged to a friend of his, and that he and Jones were

headed to Fayetteville, North Carolina. When Officer Thomas

asked if he was going to Fayetteville on vacation, Smith

responded in the negative and stated that he was going there

to stay.

After this brief conversation with Smith, Officer

Thomas returned to the squad car and sat in the back seat.

While waiting for radio verification of Jones's license and

the vehicle's registration, both officers continued to

question Jones. Although she stated that the car belonged to

her mother, Renee Preston, Jones could not explain the

difference in the last names after answering “no” to Officer

Hannan's question of whether her mother had remarried. In

response to questions about the couple's destination, Jones

said they were headed to Fayetteville for a one-week vaca-

tion. When asked who her passenger was, Jones stated that it

was her boyfriend, but she could only give the name “Pumpkin”

in response to questions about his name.

Because Smith and Jones appeared to be extremely

nervous and because of the inconsistencies in their responses

to questioning, the officers became suspicious and asked

Jones if she was carrying any illegal items, weapons, or

contraband. When Jones denied knowledge of such cargo, both

officers asked her if they could have permission to look in

the vehicle and its contents. At the time she was asked this

question, the officers told her that she could refuse, but

Jones agreed to let the officers look through the car.

While Officer Hannan was completing the traffic

citation, Officer Thomas re-approached the station wagon on

the passenger side and conversed again with Smith. At this

time, Officer Thomas asked Smith if there were any illegal

items in the car. Smith denied knowledge of any such contra-

band. Thomas then advised Smith that Jones had given the

ee

officers permission to look through the vehicle and that if

anything illegal were found in the car, ownership of the

illegal items would be attributed to both of them.

Although Smith denied having knowledge of anything

illegal being in the car, Thomas asked him again. After

hesitating, Smith said, “Yes, it was probably a hot load."

Thomas then asked, “By a hot load, do you mean cash, marijua-

na, or cocaine, one of the three?" Smith responded, “Proba-

bly."

Following this conversation, Officer Thomas began

searching the station wagon. He searched the front and back

seat areas before attempting to open and search the back

storage compartment area. When he was unable to open the

back of the station wagon with the key from the ignition,

Officer Thomas crawled over the back seat into the rear

storage area and discovered a locked indentured compartment.

Because he was unable to open the indentured

compartment with the ignition key and because it was raining

heavily, Officer Thomas asked Jones if they could take the

|| Car to a service station to break open the compartment.

Jones agreed and at approximately 6:00 p.m., Officer Thomas

drove the station wagon to the service station after placing

Smith in the back seat of the patrol car to ride with Officer

|| Hannan and Jones. At the service station, with Smith still

in the back seat or tne patrol car, the officers broke open

the compartment and found a cardboard box containing 10,000

f grams (22 pounds) of 94 percent pure cocaine wrapped in 10

individual packets. Upon discovering the cocaine, at approx~

imately 6:25 p.m., the officers placed both Smith and Jones

under arrest, read them their Miranda rights, and transported

them to Highway Patrol Headquarters.

At 9:45 p.m., Smith was questioned by Officer

Lonnie Hood. Before he was questioned, Smith was read his

Miranda rights again and signed a written waiver of those

rights. During the course of the interrogation, Smith gave

Officer Hood an incriminating account of his employment toc

drive the station wagon with Jones from Oklahoma City,

Oklahoma, to Payetteville, North Carolina. This statement

was reduced to writing by Officer Hood and signed by Smith.

Following a suppression hearing, the trial court

held that Smith's statements about the vehicle containing 4

"hot load" prior to his being Mirandized were inadmissible.

The trial court held, however, that the cocaine was admissi-

ble at trial as the fruit of a valid consensual search, and

that the later written confession signed by Smith was admis-

sible because it had been given freely, knowingly, and volun-

tarily.

The case proceeded to trial before a jury and Smith

was convicted of possessing cocaine in excess of 30 grams

with the intent to deliver, in violation of Tenn. Code Ann.

§ 39-6-417 (1982 & Supp. 1988). The jury fined Smith

$10,000.00, and the court sentenced him to serve 30 years in

the Department of Corrections as a Range I offender.

The Court of Criminal Appeals affirmed the convic-

tion and sentence.

DISCUSSION

The dispositive issue in this case involves the

admissibility of the ccnfession given to Officer Hood and

signed by Smith at the Highway Patrol Headquarters. The

defendant contends that the confession was inadmissible

because it was obtained in violation of his rights under the

Fifth Amendment to the United States Constitution and Article

I, § 9 of the Tennessee Constitution. Smith argues that his

waiver of rights and his statement to Officer Hood were not

voluntary, because they were tainted by Officer Thomas'

conduct in first questioning Smith on the side of the inter-

state without administering Miranda warnings.

The Fifth Amendment to the United States Constitu-

tion, which is applicable to the States through the Four-

teenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct.

1489, 1492, 12 L. Ed. 24 653, 658 (1964), provides that “{nJo

person .. . shall be compelled in any criminal case to be a

witness against himself." The corresponding provision of the

Tennessee Constitution provides "{t])hat in all criminal

prosecutions, the accused . . . shall not be compelled to

give evidence against himself." Tenn. Const. art. I., § 9.

Although these provisions are not identical, this Court has

previously declined to hold that protection under the state

constitution is broader than that of the federal constitution

~~

AR-7

merely because the language of the two provisions is not the

same. Delk v. State, 590 S.W.2d 435, 440 (Tenn. 1979). ‘This

observation, however, does not foreclose the possibility that

the state constitutional provision might be applied more

broadly than its federal counterpart, based upon considera-

tions other than, and in addition to, the difference in

terminology.

Prior to the decision in Miranda v. Arizona, 384

U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the

admissibility of an accused's in-custody statements depended

on whether the statements were “voluntary” within the meaning

of the Due Process Clause of the Fourteenth Amendment. See,

e.g., Haynes v. Washington, 373 U.S. 503, 83 S. Ct. 1336, 10

L. Ed. 24 513 (1963). In Miranda, however, the United States

Supreme Court limited the admissibility of statements that

would ordinarily meet the due process test of voluntariness

in order to protect an accused's Fifth Amendment rights to be

free from self-incrimination.

In order to combat the inherently compelling

pressures of in-custody interrogation and to permit a full

opportunity to exercise the privilege against self-incrimina-

tion, Miranda held that, prior to being subjected to custodi-

al interrogation, “the accused must be adequately and effec-

tively apprised of his rights and the exercise of those

rights must be fully honored.“ Miranda, supra, 384 U.S. at

467, 86 S. Lc. at 1624. The court also held that "the

prosecution may not use statements, whether exculpatory, or

inculpatory, stemming from custodial interrogation of the

~8-

AR-8

defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-in-

crimination." Id., 384 U.S. at 444, 86 S. Ct. at 1612.

The court then instructed that, at a minimum, those

procedural safeguards must include warnings prior to any

custodial questioning that the accused has the right to

remain silent, that any statement made may be used as evi-

dence against the accused, and that the accused has the right

to have an attorney, whether retained or appointed, present

during questioning. Id. To further protect an accused's

self-incrimination rights, the court also held that although

these rights may be waived, the waiver must be made “volun-

tarily, knowingly, and intelligently." Id.

Following Miranda, a Supreme Court majority has

held that the prophylactic Miranda warnings are not them-

selves rights protected by the Constitution, but are instead

measures designed to ensure that the right against compulsory

self-incrimination is protected and intelligently exercised.

See, e.g., Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285,

84 L. Ed. 24 222 (1985); New York v. Quarles, 467 U.S. 649,

104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984); Michigan v. Tucker,

417 U.S. 433, 94 S. Ct. 2357, 41 L. Ed. 2d 182 (1974).

Nevertheless, even the Elstad majority agreed that "(failure

to administer Miranda warnings creates a presumption of

compulsion." Elstad, supra, 470 U.S. at 307, 105 S.Ct. at

1292. Furthermore, that presumption is irrebuttable and

“unwarned statements that are otherwise voluntary within the

AR-9

meaning of the Fifth Amendment must nevertheless be excluded

from evidence under Miranda." id.

In Elstad, a majority of the United States Supreme

Court decided that, in a situation similar to that faced by

the defendant in this case, a trial court must conclude that

an initial confession obtained without prior warnings regard-

ing the right against self-incrimination is inadmissible.

The court went on to hold, however, that the presumption of

compulsion attaching to an unwarned confession does not also

apply to a subsequent confession obtained after administering

Miranda warnings. In discussing the admissibility of such a

second confession at trial, the court stated:

{A)bsent deliberately coercive or improp-

er tactics in obtaining the initial

statement, the mere fact that a suspect

has made an unwarned admission does not

warrant a presumption of compulsion. A

subsequent administration of Miranda

warnings to a suspect who has given a

voluntary but unwarned statement ordinar-

ily should suffice to remove the condi-

tions that precluded admission of the

earlier statement.

Id., 470 U.S. at 314, 105 S. Ct. at 1296.

This holding by the United States Supreme Court

represented a clear break with past precedent embracing t e

“cat out of the bag" theory espoused in United States v.

Bayer, 331 U.S. 532, 67 S. Ct. 1394, 91 L. Ed. 1654 (1947).

In Bayer, the court recognized:

-10-

AR-10

Of course, after an accused has once

let the cat out of the bag by confessing,

no matter what the inducement, he is

never thereafter free of the psychologi-

cal and practical disadvantages of having

confessed. He can never get the cat back

in the bag. The secret is out for good.

In such a sense, a later confession

always may be looked upon as fruit of the

first.

Id., 331 U.S. at 540, 67 S. Ct. at 1398. See also Martin v.

State, 1 Tenn. Crim. App. 282, 291, 440 S.W.2d 624, 628

(1968). Even in Bayer, however, the United States Supreme

Court refused to hold that an illegally-obtained confession

would forever foreclose the possibility that a subsequent

admissible confession could be elicited from the defendant.

In fact, in that case, the court determined that the subse-

quent confession given six months after the defendant's first

statement would not be held invalid when the "only restraint

under which [the defendant) labored was that he could not

leave the .. . limits [of the military base on which he

lived) without permission." Bayer, supra, 331 U.S. at 541,

67 S. Ct. at 1398.

We believe that adherence to the spirit and princi-

ples of Article I, § 9 of the Tennessee Constitution requires

us to recognize, as a matter of Tennessee constitutional law,

the inherent reasonableness of the underlying premise ex-

pressed in Bayer and Martin. Consequently, we dispute the

rationale of the Elstad decision that, absent coercion in

eliciting an initial confession, psychological pressures and

other pressures flowing from that confession can never lead a

defendant to give subsequent, involuntary, incriminating

“ile

AR-11

statements. As noted in Justice Brennan's dissent in Elstad,

even standard interrogation manuals used by law enforcement

agencies recognize that “({ijf the first admission can be

obtained, ‘there is every reason to expect that the first

admission will lead to others, and eventually to the full

confession.'" Elstad, supra, 470 U.S. at 328, 105 S. Ct. at

1303 (Brennan, J., dissenting).

Like the court in Bayer, however, we also refuse to

hold that an initial, illegally-cbtained confession forever

bars the prosecution from obtaining a subsequent, admissible

confession from the defendant. Rather, we hold that the

provisions of Article I, § 9 of the Tennessee Constitution

necessitate that we recognize that extraction of an illegal,

unwarned confession from a defendant raises a rebuttable

presumption that a subsequent confession, even if preceded by

proper Miranda warnings, is tainted by the initial illegali-

ty. That presumption may be overcome by the prosecution,

however, if the State can establish "that the taint is so

attenuated as to justify admission of the subsequent confes-

sion." Elstad, supra, 470 U.S. at 335, 105 S. Ct. at 1306-07

(Brennan, J., dissenting).

In each such case, the crucial inquiry for the

courts becomes whether the events and circumstances surround- —

tt

ing and following the initial, illegal conduct of the law

enforcement officers prevented the accused from subsequently

(1) making a free and informea choice to waive the State

constitutional right not to provide evidence against one's

self, and (2) voluntarily confessing his involvement in the

-12-

ARe-1?

crime. In addressing these questions, courts should examine

the following factors:

1. The use of coercive tactics to obtain

the initial, illegal confession and the

causal connection between the iilegal

conduct and the challenged, subsequent

confession;

2. The temporal proximity of the prior

and subsequent confessions;

3. The reading and explanation of

Miranda rights to the defendant before

the subsequent confession;

4. The circumstances occurring after the

arrest and continuing up until the making

of the subsequent confession including,

but not limited to, the length of the

detention and the deprivation of food,

rest, and bathroom facilities;

5S. The coerciveness of the atmosphere in

which any questioning took place includ-

ing, but not limited to, the place where

the questioning occurred, the identity of

the interrogators, the form of the

questions, and the repeated or prolonged

nature of the questioning;

6. The presence of intervening factors

including, but not limited to, consulta-

tions with counsel or family members, or

the opportunity to consult with counsel,

if desired;

7. The psychological effect of having

already confessed, and whether the

defendant was advised that the prior

confession may not be admissible at

trial;

8. Whether the defendant initiated the

conversation that led to the subsequent

confession; and

9. The defendant's sobriety, education,

intelligence level, and experience with

the law, as such factors relate to the

defendant's ability to understand the

administered Miranda rights.

-13-

AR-13

In ruling upon the admissibility of a subsequent

confession following the determination that an initial,

unwarned confession may not be introduced in the State's

case-in-chief, no single factor listed above is determina-

tive. Rather, a court must examine the totality of the

circumstances surrounding the two confessions to determine

whether the subsequent confession by the defendant can truly

be termed a knowing and voluntary statement.

The facts of this case demonstrate that Smith's

subsequent confession was given knowingly and voluntarily.

No coercive tactics were employed by the law enforcement

officials to elicit either the first or the second incrimi-

nating statement given by the defendant. More than three

hours elapsed between the time Smith was arrested and first

given his Miranda warnings and the time when he gave his

second confession to the authorities. There is no evidence

in the record that Smith was in any way mistreated during

that time period or that he was prevented from contacting

friends, family or legal counsel. Additionally, Smith had

been advised of his Miranda rights twice before his second

statement was given (once at the time of his arrest and again

immediately before the second statement), both the interroga-

tors and the place of interrogation changed from the first

illegally-obtained confession, and there is no indication

that Smith did not fully understand the rights explained to

him.

In fact, Smith acknowledged that he understood his

rights and signed a written waiver of them. In response to

-14-

AR-14

ee ee a

questioning, Smith proceeded to give Officer Hood a statement

of his involvement in the crime. There is no evidence that

the interrogation producing the statement was unduly pro-

longed so that it could be characterized as an effort to wear

down Smith's resistance and overcome his free will.

The only coercive influence apparent in this record

is the fact that Smith was in police custody at the time of

his statement and at all relevant times after his arrest.

Although police custody is inherently coercive and compel-

ling, if we were to hold this single factor sufficient to

vitiate the voluntariness of a subsequent confession, an

accused could never give a voluntary confession after arrest.

We are unwilling to condone such a result because of our

belief that “[{cJonfessions remain a proper element in law

enforcement." Miranda, supra, 384 U.S. at 478, 86 S. Ct. at

1630.

In short, our examination of the totality of the

circumstances surrounding Smith's initial statement, his

arrest and detention, and his subsequent confession leads us

to the inescapable conclusion that Smith knowingly and

voluntarily waived his right against self-incrimination prior

to giving the written confession introduced at trial in this

matter. The prosecution successfully rebutted the presump-

tion that the illegally-obtained, initial statement given on

the side of Interstate 40 also tainted the subsequent confes-

sion given by Smith. As a result, that second statement was

properly admitted at trial.

-15-

AR-15

Our ruling today that an illegally-obtained,

initial confession is presumed, subject to rebuttal, to have

tainted any subsequent confession, even if the later state-

ment is preceded by proper Miranda warnings, expressly

rejects the United States Supreme Court majority holding in

Elstad v. Oregon. We believe, however, that the provisions

of Article I, § 9 of the Tennessee Constitution mandate that

the State, after illegally obtaining an incriminating state-

ment from a defendant, must establish that the subsequent

confession was given freely and voluntarily and that the

constitutional right to be free from self-incrimination was

not waived due solely to the psychological pressures result-

ing from giving the previous statement. Only then can we be

assured that criminal defendants are not being unconstitu-

tionally compelled “to give evidence against {themselves)."

The Concurring Opinion expresses concern that our

retention of the "cat out of the bag” rule that an illegally

obtained initial confession is presumed, subject to rebuttal,

to taint a later confession will enable defendants to have

confessions suppressed by merely demonstrating that their

arrest and detention was psychologically stressful. This

concern is unfounded because the "cat out of the bag” theory

was adopted in 1947 by the U. S. Supreme Court in United

States v. Bayer, supra, and was followed until the Court's

split decision in 1985 in Oregon v. Elstad, supra, and there

_ is no evidence that confessions were suppressed during that

nearly 40-year period by merely showing that arrest and

detention was stressful. In addition, as previously pointed

out, Bayer, the case that espoused the “cat out of the bag”

-16-

AR-16

theory, expressly recognized that the first inadmissible

confession does not perpetually disable a defendant from

subsequently giving an admissible confession.

oo

The defendant also contends that the consensual

search of the station wagon was not valid because the offi-

cers never asked him for permission to search the car.

Persons having equal rights to use or occupy premises may,

however, consent to a search of them and the consent will be

binding upon the co-occupants. Frazier v. Cupp, 394 U.S.

731, 740, 89 S. Ct. 1420, 1425, 22 L. Ed. 2d 684 (1969);

Lester v. State, 216 Tenn. 615, 620, 393 S.W.2d 288, 290

(1965). Because Kellie Jones had an equal right to use and

occupy the vehicle, her voluntary consent to search is valid

and binding upon Smith as well. There is no merit to this

issue.

Finally, the defendant submits that the sentence

imposed upon him after conviction was excessive. We concur

in the conclusion of the Court of Criminal Appeals that this

issue is also without merit.

“17-

AR-17

respects.

defendant.

Concur:

The defendant's conviction is affirmed in all

The costs of this appeal are adjudged against the

> ¥ - y Aa

E. RI ERSON, Justice

Reid, C.J., and Daughtrey, J.

Drowota and O'Brien, JJ. (Separate Concurring Cpinion)

AR-18

tw

ta

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, FOR PUBLICATION

Plaintiff-Appellee,

COCKE CIRCUIT

Hon. J. Kenneth Porter,

HOSIE VAN SMITH, Judge

Defendant-Appellant. S/C No.

03S01-9107-CR-00054

CONCURRING OPINION

I would affirm but apply the rule announced by the

United States Supreme Court in Oregon v. Elstad, 470 U.S.

298, 105 S. Ct. 1285, 84 L. Ed.2d 222 (1985). Specifically,

I agree with that Court that "there is no warrant for pre-

suming coercive effect where the suspect's initial inculpa-

tory statement, though technically in violation of

Miranda, was voluntary." Id. at 318, 105 S. Ct. at 1297-98.

In Elstad, the United States Supreme Court held

that “a suspect who has once responded to unwarned yet

uncoercive questioning is not thereby disabled from waiving

his rights and confessing after he has been given the requi-

site Miranda warnings." Id. at 318, 105 S. Ct. at 1298.

Under Elstad, the factfinder is directed to “examine the

surrounding circumstances and the entire course of police

conduct" and thereby reach a determination as to whether the

defendant's post-Miranda statement was

AR-19

voluntarily made, see id.;

because the trial court properly

conducted this inquiry, I would affirm.

While the majority purports to adopt a presumpticn,

apparently gleaned from Justice Brennan's dissent in Elstad,

that an illegally obtained initial confession taints any

subsequent confession, I submit that the majority does

nothing more than examine the totality of the circumstances

in order to determine whether Smith's post-Miranda statement

was voluntarily made.

Further, the "“psychclogical stress" component of

the majority's presumption, see supra at ("the State °

must establish that the subsequent confession was given

freely and voluntarily and tha’. the constitutional right to

be free from self-incrimination was not waived due solely to

the psychological pressures resulting from giving the previ-

ous statement"!, gives reason for pause: Were the majority to

actually apply Justice Brennan's “cat out of the bag” pre-

sumption, it is difficult to imagine that Smith's post-Mi-

randa statement would be found free of taint. Smith waived

his Miranda rights a mere three hours after his initial

statement, and at a time when he was burdened by the “psy-

chological stress" of knowing the police found 10,000 grams

(22 pounds) of 94 percent pure cocaine in his car.

Finally, because Defendant's subsequent confession

is clearly admissible, < decline the opportunity ‘to circum-

scribe the boundaries of Article [, Section 9, of the Ten-

nessee Constitution.

AR-20 :

+

s

am authorized to state that Justice O'Brien

this concurring opinion.

So KNeowsene,

FRANK F. DROWOTA, .1

JUSTICE