USA. v. Orso
Decision Date | 28 December 2001 |
Docket Number | DEFENDANT-APPELLANT,No. CR-98-00024-LGB-01,PLAINTIFF-APPELLEE,No. 99-50328,99-50328,CR-98-00024-LGB-01 |
Citation | 275 F.3d 1190 |
Parties | (9th Cir. 2001) UNITED STATES OF AMERICA,, v. JODY MYESHA ORSO,D.C. Filed |
Court | U.S. Court of Appeals — Ninth Circuit |
Before: Mary M. Schroeder, Chief Judge, and Procter Hug, Jr., Alex Kozinski, Diarmuid F. O'Scannlain, Andrew J. Kleinfeld, Michael Daly Hawkins, M. Margaret McKeown, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, and Johnnie B. Rawlinson, Circuit Judges.
ORDER
A sua sponte call for full court en banc rehearing was made by a member of the Court. The full court was advised of the call. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of full court en banc reconsideration. See Fed. R. App. P. 35; Ninth Cir. R. 35-3.
The sua sponte call for full court en banc rehearing is, accordingly, REJECTED.
Judge Trott's impassioned dissent from our denial of full court en banc rehearing in this case makes clear that he disapproves of the methods that the police employed which produced Jody Orso's Mirandized confession in this case. His views are perfectly reasonable. And who knows--if this court were free to rewrite Fifth Amendment law I might well agree with him. But we are not free to rewrite the law. And that is where I part company with Judge Trott and his merry band of dissenters.1
To begin, let us remember that this court does not sit as a kind of super-Citizens' Police Review Board, creating some set of federal common-law police regulations for local law enforcement officers in this circuit by distinguishing, on a case-by-case basis, "good" police conduct from"bad." Instead, our only proper role in this context is to determine whether police conduct has in some way rendered the admission of evidence at a criminal trial violative of a defendant's constitutional rights. In short, not everything that this court might consider "bad" (or "improper") is accordingly unconstitutional. Cf. Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991) ( ).
Turning to the constitutional issue we review in this case, I respectfully suggest that, to the extent that Judge Trott is concerned that a Miranda violation does not require a "fruitof-the-poisonous-tree" analysis when it leads to a second, voluntary, warned confession, his quarrel is not with Orso, but with the Supreme Court's decision in Elstad. In Elstad, the Court held that it simply does not matter that a statement is procured because an earlier statement was elicited from a suspect in violation of Miranda. So long as the earlier statement was not involuntary due to unconstitutional coercion, the subsequent, voluntary, warned statement is still admissible-without regard to whether the subsequent statement was "tainted" by the earlier statement. Elstad , 470 U.S. at 309.
True, Elstad's rationale relied heavily on the fact that, when Elstad was decided, Miranda was not understood to be a constitutional rule. Id. at 305 (). And true, the Court's recent decision in Dickerson v. United States, 530 U.S. 428 (2000), calls this premise into question. See id. at 444 (). I can therefore understand Judge Trott's desire to take this opportunity to tease out of Elstad an entirely new category of police activity, "improper tactics," that gives rise to a fruit-of-the-poisonous-tree analysis.2 Indeed, he was disposed to do so long before Dickerson. See Pope v. Zenon, 69 F.3d 1018, 1024 (9th Cir. 1996) (Trott, J.) ( )(emphasis added), overruled by United States v. Orso, 266 F.3d 1030 (9th Cir. 2001) (en banc).
Perhaps the most crucial point that Judge Trott makes in his dissent, though, is that "[w]hat emerges from Dickerson is unmistakable." Infra, Dissent from Denial at 17408. Quite so --but not what Judge Trott envisions. What emerges from Dickerson is that Elstad, as explicated in the limited en banc panel's opinion, is good law; unless a first-obtained, unMirandized confession is involuntary, a later-obtained, Mirandized confession is not subject to a fruit-of-the-poisonous-tree analysis. See Dickerson, 530 U.S. at 441 (). Admittedly, the Court's analysis of this point in Dickerson (all one sentence of it) is less than fully satisfying. But faced with a clear statement of the law from the Supreme Court, our duty is clear: our court must follow. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989) (); see also Spector Motor Serv., Inc. v. Walsh, 139 F.2d 809, 823 (2d Cir.) (L. Hand, J., dissenting) (), vacated sub nom. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101 (1944).
The constitution neither ordains nor establishes this Inferior court as an oracle of future Supreme Court holdings. Instead, the role that the Founders assigned us is a more humble one, that of simply following the Supreme Court's dictates and applying them to the inhabitants of the Nine Western States. Because that is precisely what our limited en banc opinion in Orso does, I concur in the order by which my colleagues decide to follow and to apply Elstad, and to refuse full court en banc rehearing in this case.
1. It is telling that not even a single member of our limited en banc court thought that we could ignore controlling Supreme Court precedent; even those joining in the concurrence recognized that Oregon v. Elstad, 470 U.S. 298 (1985) controls. See United States v. Orso, 266 F.3d 1030, 1040 (9th Cir. 2001) (en banc) (Paez, J., concurring) (). Thus, at least on its face, the limited en banc decision reflects an 11-0 vote on the merits. (It may no longer, in fact, reflect an 11-0 vote, given that Judge Hawkins, who joined Judge Paez's concurrence, has subsequently joined in Judge Trott's dissent from denial of full court en banc rehearing.)
2. It seems that, at least for now, Judge Trott is content to give content to his newfound category by defining it as "wittingly and purposefully" asking questions before giving Miranda warnings. See infra, Dissent from Denial at 17408. Fine for today, but why stop there? Why not make "improper tactics" coextensive with "anything that two out of three judges on a panel don't like," effectively converting this Article III court into the aforementioned super-Citizens' Police Review Board? Regrettably, I see no principled limit to the unwarranted judicial foray into the propriety of law enforcement tactics that Judge Trott's dissent advocates.
TROTT, Circuit Judge, with whom Circuit Judges PREGERSON, REINHARDT, HAWKINS, TASHIMA, THOMAS, WARDLAW, FISHER, and BERZON join, Dissenting:
For years, we found ourselves entangled in a spirited debate: Did Miranda announce a constitutional rule, or are the Miranda warnings merely a lesser species of prophylactic incantations designed to protect the Fifth Amendment's privilege against self-incrimination? In Dickerson v. United States, the Supreme Court answered this significant and consequential question, holding that Miranda announced a constitutional rule, not merely a fungible ritual for which something lesser could be substituted. 530 U.S. 428, 442 (2000). In so holding, the Supreme Court rejected the idea that Congress could override the constitutional strictures of Miranda by passing a law (1) designating voluntariness as the touchstone of admissibility of a suspect's in-custody statements, and (2) creating a test wherein the administration of Miranda rights to the person interrogated is not dispositive, one way, or the other. See id. at...
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