Appeal from the United States District Court for the Northern District of California. D.C. No. CV-87-20481-RPA. Robert P. Aguilar, District Judge, Presiding.
Goodwin, Hug, Fletcher, Poole, D. W. Nelson, Reinhardt, Beezer, Kozinski, Noonan, O'Scannlain, and Trott, Circuit Judges. Opinion by Judge Trott; concurrence by Judge Kozinski; dissent by Judge Goodwin; dissent by Judge O'Scannlain, with whom Beezer and Noonan, Circuit Judges, joined.
Appellant Collazo was arrested for murder and advised of his Miranda rights. He declined to waive them, asking instead to talk to a lawyer. The police responded to his request by telling Collazo it "might be worse" for him if he talked to an attorney, and that it was in his interest to talk to them without one. Three hours later, he "changed his mind," was readvised of his rights, and talked to the police. What he told them was used to convict him and send him to prison. We are called on in this appeal to examine the conduct of the police leading up to Collazo's confession, and to decide in light of that conduct whether Collazo was denied due process when his confession was introduced in evidence. We conclude that Collazo's confession was involuntary, and that its use to convict him violated his Constitutional rights. We reverse the district court.
On September 27, 1982, Dennis Collazo, an occasional informant and undercover operative for the Drug Enforcement Administration, was arrested for the murder of Douglas Metzger. Metzger often sold cocaine to Collazo's niece, who owed Metzger a considerable debt arising from her purchases. When Collazo's niece expressed a desire to free herself from her drug debt, Collazo and Tony Young, one of Collazo's confederates, attempted an armed robbery of Metzger. The robbery turned into a brawl, and Young shot Metzger. After the murder, Collazo went to Mexico (apparently on DEA business), and was arrested on his return.*fn1
After the arrest, Collazo was escorted to an interview room in the San Jose Police Station where Officer Rolen fully advised him of his Miranda rights. In response, he asked to talk to his wife. The police denied this request. After some discussion about where he was on the day of the murder and another rejected request to talk to his wife, Collazo requested to talk to a lawyer. Instead of respecting his request, however, Officer Destro (Officer Rolen's partner) attempted to pressure him into dispensing with counsel and talking to them about the homicide.*fn2 A transcript of the conversation follows:
Collazo: Oh, you know, ah, can I, you know, talk to a lawyer?
Destro: It's up to you. This is your last chance to talk to us, though.
Collazo: I understand that.
Destro: Once you get a lawyer, he's gonna say forget it. You know, don't talk to the police. Then it might be worse for you.
Destro: Then it might be worse for you.
Destro: Because, ah, you know, there's other people involved in this thing, and we would like to get everybody. If you don't want to talk about it, uh-
Rolen: Well, he's asked for a lawyer, so why don't we, I guess we'll end our interview right there.
Collazo: If, ah, if ah, this gonna be stupid for you, you know, for me it means a lot, you know.
Destro: If you're arrested for murder, it does mean a lot.
The police then departed, leaving Collazo in the interview room to ponder Officer Destro's inappropriate admonition and to consider whether he could afford to exercise his Constitutional rights.
Collazo was then permitted to call and to see his wife, a legal secretary. She came to the police station and had a lengthy discussion with him, the substance of which is unknown. Some three hours after the officers' departure, Collazo contacted a sergeant and asked, "Where are the investigators?" The sergeant correctly construed this as a request to talk to them, and they were so notified and returned to the station. Collazo was again advised of his Miranda rights, and indicated he had changed his mind and was now willing to talk. He then essentially confessed to his nonshooting role in the crimes for which he had been charged and arrested.
In state court, Collazo unsuccessfully attempted to suppress his incriminating statements on the ground that they were the product of impermissible coercion and thus a violation of his Constitutional rights. He argued that the formal waiver of his Miranda rights was nothing more than the involuntary product of previous threats. At trial, his taped statement, the truthfulness of which he partially repudiated, was admitted in evidence over his objection. Collazo was convicted by a jury of felony murder, burglary, and conspiracy to commit robbery, burglary, and theft. For these crimes he was sentenced to state prison for a term of 26 years to life.
Collazo pursued his case on appeal through the state courts in California, attacking his confession as the direct product of a violation of his federal Constitutional rights. He was not successful and after exhausting all state remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California. His petition was denied, but a certificate of probable cause was issued.
On appeal, Collazo argues (1) his confession was involuntary, (2) the alleged waiver he articulated before confessing was nothing more than the unlawful product of coercive tactics, and (3) the use of his statement against him was not harmless error.
We confront a state court record containing factual findings on the relevant issues. California argues that these findings, insofar as they pertain to the validity of the alleged waiver, are entitled to the presumption of correctness mandated by 28 U.S.C. § 2254(d).*fn3 Therefore, we must first determine the appropriate standard of review that controls our analysis.
We review de novo the voluntariness of Collazo's confession. Miller v. Fenton, 474 U.S. 104, 112, 88 L. Ed. 2d 405, 106 S. Ct. 445 (1985), calls on us to determine "whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution . . .," and to do so by subjecting the issue to "plenary federal review." A federal court reviewing the admissibility of a confession is not bound by a state court finding of voluntariness and has a "duty to make an independent evaluation of the record." Mincey v. Arizona, 437 U.S. 385, 398, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978). More specifically, we are not bound by state court findings that the conduct of the interrogating officers was not coercive. As Chief Judge Wallace recently stated in Derrick v. Peterson, 924 F.2d 813, 818 (9th Cir. 1990), "we are obligated to conduct an independent review of the 'constitutional acceptability' of the . . . interrogation . . . ." We take a fresh look at whether the police used "objectively unacceptable methods to coerce [the defendant] into waiving his rights to silence . . . ." United States v. Wolf, 813 F.2d 970, 976 n.16 (9th Cir. 1987). In this regard, "the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne." Miller, 474 U.S. at 116 (emphasis in original).
Historical or subsidiary facts are treated differently, even though they may be dispositive of a Constitutional claim. Id. at 113. Such findings as whether the police in fact made the alleged threats are reviewed for clear error if made by a district court, and are presumed correct under section 2254(d) if made by a state court. "To be sure, subsidiary factual questions, such as . . . whether in fact the police engaged in the intimidation tactics alleged by the defendant . . . are entitled to the § 2254(d) presumption [of correctness]." Id. at 112 (citations omitted).
The standard of review does not change when the inquiry shifts from the voluntariness of the confession to the voluntariness of an asserted Miranda waiver.*fn4 Colorado v. Spring, 479 U.S. 564, 573, 93 L. Ed. 2d 954, 107 S. Ct. 851 (1987), makes it clear that "the inquiry whether a waiver is coerced 'has two distinct dimensions' ":
"First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived."
(quoting Moran v. Burbine, 475 U.S. 412, 421, 89 L. Ed. 2d 410, 106 S. Ct. 1135 (1986) (emphasis added)).
We review the voluntariness prong de novo:
We agree with the Third Circuit and reaffirm Grooms ' [ Grooms v. Keeney, 826 F.2d 883, 887 (9th Cir. 1987)] adoption of a plenary standard of review because we find that the voluntariness of a waiver is a mixed question of law and fact that requires de novo review. A mixed question of law and fact warrants de novo review when "the application of law to fact will require the consideration of legal concepts and involve the exercise of judgment about the values underlying legal principles."
Terrovona v. Kincheloe, 852 F.2d 424, 428 (9th Cir. 1988) (quoting United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46, 105 S. Ct. 101 (1984)). See also Derrick, 924 F.2d at 822. Thus, as with the voluntariness of a confession, the voluntariness of a Miranda waiver is decided by first examining objectively the methods the police used to produce the waiver.
But the calculus shifts when we focus on the awareness prong. In this dimension, "we review the question of whether the defendant's mind was overborne - i.e., was his waiver knowing and intelligent - for clear error." Derrick, 924 F.2d at 823. In the context of collateral review, "a state trial court's determination that a defendant knowingly and intelligently waived his Miranda rights is entitled to a presumption of correctness pursuant to section 2254(d)." Id.
We now examine Officer Destro's response to Collazo's initial assertion of his Miranda rights. We must determine, as a threshold matter, whether Officer Destro's attempt to discourage Collazo from speaking to a lawyer is compatible with a system of justice that does not permit police coercion. We conclude it is not, and we so conclude for a multitude of reasons.*fn5
First, applying the traditional Fifth Amendment voluntariness test, Officer Destro's nine terse sentences, understood plainly, were coercive. His words were calculated to pressure Collazo into changing his mind about remaining silent, and into talking without counsel to his interrogators. Destro's warning that it "might be worse" for Collazo if he did not cooperate with the police can only be seen as menacing. During the suppression hearing, the prosecutor himself characterized Officer Destro's tone and presentation as "insistent." The tape of the interview confirms this description.
The use of coercive tactics by state law enforcement officers to pressure an arrestee into talking has been prohibited since 1936. Brown v. Mississippi, 297 U.S. 278, 80 L. Ed. 682, 56 S. Ct. 461 (1936) (use of a defendant's coerced confession in a state criminal trial denies due process).*fn6 As the Supreme Court stated in Culombe v. Connecticut, 367 U.S. 568, 602, 6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961):
The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? . . . The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.
(emphasis added). Twenty-eight years later, and eighteen years before the investigation in this case, the privilege against self-incrimination was held applicable to the states via the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 12 L. Ed. 2d 653, 84 S. Ct. 1489 (1964).
Interrogation tactics need not be violent or physical in nature to be deemed coercive. Psychological coercion is equally likely to result in involuntary statements, and thus is also forbidden. Mincey, 437 U.S. at 401, provides us with guidance:
There were not present in this case some of the gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings . . . or "truth serums" . . . . But the "blood of the accused is not the only hallmark of an unconstitutional inquisition." . . . Determination of whether a statement is involuntary "requires more than a mere color-matching of cases." It requires careful evaluation of all the circumstances of the interrogation.
(citations omitted) (footnote omitted); see also Spano, 360 U.S. at 321 ("As law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, our duty to enforce federal constitutional protections does not cease.").
Second, Officer Destro not only resorted generally to coercive tactics, but in doing so he effectively told Collazo he would be penalized if he exercised rights guaranteed to him under the Constitution of the United States. Notwithstanding Miranda's attempt to "assure that the exercise of the [Fifth Amendment right to silence] will be scrupulously honored . . .," 384 U.S. 436 at 479, Officer Destro attempted to impose a penalty on its invocation. The Supreme Court has held "while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings." Doyle v. Ohio, 426 U.S. 610, 618, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976). Doyle went on to hold "the use for impeachment purposes of [an arrestee's] silence, at the time of arrest and after receiving Miranda warnings, violates the Due Process Clause of the Fourteenth Amendment." Id. at 619 (footnote omitted). It follows as night the day that Officer Destro's attempt in the police station to impose a penalty on Collazo's choice to remain silent amounts to a serious infringement of Collazo's Fifth Amendment right. See also Michigan v. Tucker, 417 U.S. 433, 442, 41 L. Ed. 2d 182, 94 S. Ct. 2357 (1974) ("In Miranda. . . the privilege against compulsory self-incrimination was seen as the principal protection for a person facing police interrogation.").
Third, Miranda expresses concern about the compelling pressures that weigh upon a person in custody, pressures that can break a person's free will and cause that person to talk involuntarily. Miranda v. Arizona, 384 U.S. 436, 467, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Here, Officer Destro took unfair advantage of these pressures. At a point where the law required him to back off, he did not "scrupulously honor" Collazo's right to cut off questioning; he stepped on it. Any minimally trained police officer should have known such pressure was improper and likely to produce involuntary statements. Thus, Officer Destro engaged in prohibited interrogation. Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980), points out "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (footnote omitted).*fn7 Innis explicitly outlawed techniques likely to " 'subjugate the individual to the will of his examiner' and thereby undermine the privilege against compulsory self-incrimination." Id. at 299 (quoting Miranda, 384 U.S. at 457-58); see also Shedelbower v. Estelle, 859 F.2d 727, 731 (9th Cir. 1988), United States v. Gomez, 927 F.2d 1530 (11th Cir. 1991), United States v. Anderson, 929 F.2d 96 (2d Cir. 1991).
In this regard, Officer Destro's immediate interrogation of Collazo in direct response to his request for a lawyer is a textbook violation of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). Edwards made it clear beyond doubt that "an accused, such as [Collazo], having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85 (emphasis added). At the point Officer Destro hectored Collazo, Collazo had not initiated further communication with the officers. In fact, he had terminated the exchange by asking for a lawyer. The goal of the Court in Edwards was "to protect an accused in police custody from being badgered by police officers . . .," Oregon v. Bradshaw, 462 U.S. 1039, 1044, 77 L. Ed. 2d 405, 103 S. Ct. 2830 (1983). What Officer Destro did can only be seen as badgering Collazo in the precise manner that concerned the Edwards Court.
Fourth, Officer Destro demeaned the pre-trial role of counsel articulated by the Supreme Court in Miranda and its progeny. He did so by dispensing a one-sided, unauthorized legal opinion regarding whether Collazo should remain silent and exercise his right to counsel.*fn8 This advice adds yet another unacceptable dimension to Officer Destro's methods. "To a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling." Arizona v. Roberson, 486 U.S. 675, 686, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988). As if this were not enough, Officer Destro inappropriately led Collazo to believe he could reap some legal benefit by excluding defense attorneys from the pre-trial process. Such a tactic is inconsistent with Miranda's stated purpose of making "the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest." Miranda, 384 U.S. at 469. As it turned out, and with considerable irony, not only did matters not go better for Collazo by talking without an attorney rather than remaining silent, but his statements were used to send him to prison, possibly for life.
Thus, Officer Destro's statements subjected Collazo to menacing custodial interrogation in violation of Brown v. Mississippi, Culombe, Miranda, Innis, and Edwards. Officer Destro's words are an egregious violation of Miranda - the essence of improper law enforcement behavior in response to the rules established in that the landmark case. We join with the dissent in characterizing this behavior as "improper and reprehensible."
California freely admits on appeal that "the police violated Collazo's Miranda rights . . . ." What California fails to appreciate is that a breach of these rules not only has Miranda implications, but traditional voluntariness implications as well. Although Miranda "rights" are "not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected," Tucker, 417 U.S. at 444, when these measures are ignored, as they were in this case, a suspect's Constitutional rights are directly affected. Destro's failure to comply with Miranda aggravated his coercive tactics. See Clewis v. Texas, 386 U.S. 707, 709, 18 L. Ed. 2d 423, 87 S. Ct. 1338 (1967) (Miranda transgressions are relevant on the issue of the voluntariness of a confession).
Returning to non-Miranda aspects of the traditional Fifth Amendment voluntariness test, we see that Officer Destro's words and tactics share much in common with other psychological ploys that have been scrutinized and found wanting. The Supreme Court noted in Spring, 479 U.S. at 576 n.8:
In certain circumstances, the Court has found affirmative misrepresentations by the police sufficient to invalidate a suspect's waiver of the Fifth Amendment privilege. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 9 L. Ed. 2d 922, 83 S. Ct. 917 (1963) (misrepresentation by police officers that a suspect would be deprived of state financial aid for her dependent child if she failed to cooperate with authorities rendered the subsequent confession involuntary); Spano v. New York, 360 U.S. 315, 3 L. Ed. 2d 1265, 79 S. Ct. 1202 (1959) (misrepresentation by the suspect's friend that the friend would lose his job as a police officer if the suspect failed to cooperate rendered his statement involuntary).
Destro's ploy also trespasses on our holding in United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981), which condemned warnings by interrogators "that a lengthy prison term could be imposed, that [the arrestee] had a lot at stake, that her cooperation would be communicated to the prosecutor, that her failure to cooperate would be similarly communicated, and that she might not see her two-year-old child for a while . . . ." (footnotes omitted). Writing for the panel, Judge Reinhardt held that this litany, under the circumstances, constituted psychologically coercive tactics sufficient to render Tingle's subsequent confession involuntary.
We are not unaware of the complex challenges faced by law enforcement officers as they discharge their important and difficult responsibilities in accord with Constitutional principles and the rules designed to protect them. Nevertheless, this is a nation where the rule of law prevails, where ends do not justify inappropriate means. Miranda has been part of our law since 1966. Most law enforcement officers abide faithfully by its requirements even though they find them on occasion to be frustrating. As long as Miranda is on the books, it must be respected. In this case, it was not honored. It was disobeyed.
The present case is not one where we examine interrogation practices not addressed by the courts as of the time of the interrogation. Officer Destro's improper admonition flew directly in the face of previously published rules and rights on the books for some time before Collazo's request. This disregard for established rules exacerbates the police conduct in question and it evokes Justice Brandeis' timeless dissenting remarks in Olmstead v. United States, 277 U.S. 438, 485, 72 L. Ed. 944, 48 S. Ct. 564 (1928):
Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.
We repeat this statement not to berate Officer Destro, but to remind all law enforcement officers of the importance of their responsibilities.
Based on the foregoing, our plenary review of the tactics used by Officer Destro in an attempt to pressure Collazo into talking to his adversaries leads us to a two-part conclusion. First, Officer Destro's tactics add up to a flagrant breach of the prophylactic rules established by the Supreme Court in Miranda and its progeny to protect a defendant's Constitutional right against self-incrimination. Second, Officer Destro's overreaching behavior violated not only Miranda, but also the general Constitutional prohibition against coercive interrogation practices likely to result in involuntary responses. Officer Destro's gambit was inconsistent with Collazo's Fifth Amendment right against self-incrimination as well as his right to consult an attorney. His inquisitorial stratagem was calculated to break Collazo's will. As such, it offends due process as guaranteed by the Fourteenth Amendment.
If Collazo had confessed to his interrogators in immediate response to Officer Destro's pressure, his confession - for the reasons previously detailed - would have been manifestly inadmissible, and our inquiry would be over. But Collazo's confession did not come until some three hours after Officer Destro's impropriety, and it was preceded by certain events to which California points in support of an argument that boils down to this proposition: By the time Collazo decided to talk, the taint of any earlier misconduct had evaporated, leaving Collazo free to decide on his own whether to "[initiate] further communication, exchanges, or conversations with the police." Edwards, 451 U.S. at 485.
In making this argument and in attempting to bring this case within Edwards's exception covering suspects who themselves initiate further discussion, ...