Collins v. Beto

• Decision Date: 21 July 1965
• Docket Number: No. 21739.,21739.
• Citation: 348 F.2d 823
• Parties: Clarence COLLINS, Appellant, v. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

348 F.2d 823 (1965)

Clarence COLLINS, Appellant, v. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 21739.

United States Court of Appeals Fifth Circuit.

June 18, 1965.

Rehearing Denied July 21, 1965.

William F. Walsh, Houston, Tex., for appellant.

Samuel H. Robertson, Jr., Asst. Dist. Atty., Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., for appellee.

Before TUTTLE, Chief Judge, and HUTCHESON and FRIENDLY,^* Circuit Judges.

TUTTLE, Chief Judge.

Clarence Collins, presently serving a 99-year sentence in a Texas penitentiary based on a conviction of murder with malice aforethought, appeals from the district court's denial of his petition for habeas corpus. The parties stipulated "that the sole question presented * * * is the admissibility, as a matter of law, of the confession introduced against the relator in this cause."

Collins was charged with having murdered Mrs. Wilma Selby in her home on November 16, 1959. Several days after the killing, Mr. Selby admitted to the police that he had for some time been attempting to hire someone to kill his wife. He said he did not know who actually did the killing, but he implicated several persons, including Maggie Morgan, who admitted having taken Mr. Selby's money but denied complicity in the killing.

Collins was a long-time associate of Maggie Morgan and was at her home on December 12, 1959, when Houston police officers arrived to question her. Since the police "were talking with everybody that was associated with Maggie Morgan," Collins was placed under arrest. There was no warrant and, admittedly, no probable cause for this arrest.¹ Collins was questioned at Police Headquarters the night of December 12th and again on the morning of December 14th, at which time he executed an affidavit stating that Maggie Morgan had once asked him whether he wanted to kill someone for a thousand dollars, but that, thinking she was joking, he paid no particular attention to her query. He was given a polygraph test around mid-day and was released at 6 P.M., no charges having been preferred against him.

Collins' second encounter with the police resulted in the confession challenged here as inadmissible. On January 19, 1960, E. T. Morgan, a private detective, money-lender, and bondsman, met with representatives of the Houston Police Department, the Harris County Sheriff's office, and the Harris County District Attorney's office. With a view toward claiming the reward offered by a Houston newspaper for information leading to the apprehension of Mrs. Selby's killer, Morgan told the officers that he had information that Collins was the guilty party. He did not elaborate any further.²

After the meeting with Morgan, at around 7:30 P.M. on January 19th, Houston police officers arrested Collins at his home on orders from Captain Waycott. When asked at the State trial why no warrant was obtained for this arrest, Captain Waycott testified, "All we were working on was the investigation. We didn't feel justified in charging the man with an offense of that kind * * * on the basis of the information we had."³

After consulting with representatives from the Sheriff's and District Attorney's offices, the police took Collins to Texas Ranger headquarters in Houston. This location was selected because the officers "didn't want anyone to know * * * they had the subject at the time." The testimony as to what transpired at Ranger Headquarters on January 19th is in dispute. The district court found that "during this time, Collins was engaged in conversation `on and off' by several of the officers who were present in the building, but there appears to have been no serious, pressing questioning."

At approximately midnight, Collins was taken by a Sheriff's officer, accompanied by E. T. Morgan, to Humble, Texas, a small community on the outskirts of Houston, about ten or twelve miles from the Ranger Headquarters. While Morgan stayed in the Sheriff's car with Collins, the Sheriff's officer went before a Justice of the Peace in Humble and swore out a criminal complaint charging the crime of vagrancy and naming the accused as "Joe Smith." Upon this complaint, the Justice of the Peace issued a warrant for the arrest of "Joe Smith," on the basis of which Collins was placed in the Humble jail. Police and Sheriff's officers admitted, in both State and Federal courts, that they had no basis whatsoever for charging Collins with vagrancy and that the Sheriff's officer knew that Collins' name was not "Joe Smith."

Collins remained overnight in the Humble jail without any further questioning. On the afternoon of January 20, 1960, the officers who had arrested him at his home the night before picked him up from the Humble jail and returned him, after making a few stops for food and personal business, to the Ranger Headquarters in Houston. Beginning around 7 P.M., Collins was questioned by Captain Waycott for approximately 30 minutes and then by the officers who had arrested him for a little more than an hour. Having recalled that one of these officers had previously helped clear him of some false accusation, Collins stated he would tell this officer "all about it" and made an oral statement concerning the crime. Police and Sheriff's officers were then called in and Collins repeated his statement to them.

Collins was then left alone with Officer Baker of the Houston Police Department. Baker testified at the State trial that he questioned Collins for about 45 minutes without advising him that he need make no statement. Baker then took about two hours to take down Collins' statement in writing. The written statement included the formulation of a warning that Collins need make no statement and that a statement, if made, could be used against him. This statement, completed about midnight, recited that Collins had gone to the Selby house the night of the murder with Maggie Morgan and a woman named Johnson. It further stated that Collins remained outside in the car while Maggie Morgan went into the house.

Finding this statement unsatisfactory, the officers expressed to Collins their belief that he had not told the entire truth. At around 1:30 A.M. on January 21st, he was given a lie-detector test, which the district court found to be at his own request. He was given a second lie-detector test at around 2 A.M. Questioning recommenced at around 3:15 A.M. Shortly thereafter, Collins confessed to the crime in the presence of Officer Baker, Captain Waycott, and Chief Frazier. After Collins' oral confession Captain Waycott filed murder charges against him and telephoned a Justice of the Peace in order to obtain an arrest warrant. At the same time, Officer Baker began taking down in writing the second statement. The three-page statement took almost two and one-half hours to transcribe and was finally signed by Collins at around 7 A.M., January 21st. Collins was then taken to the Houston Police station where a record of his arrest was made. At about 9 A.M., he was taken before a Justice of the Peace and formally charged.

Collins objected to the admission into evidence of his January 21st confession on three grounds: (1) that the confession was "involuntary", (2) that the confession was the "fruit" of an unlawful arrest under the Fourth and Fourteenth Amendments, and (3) that the confession was taken when Collins was without counsel in violation of the Sixth and Fourteenth Amendments. I agree with the conclusion and reasoning in Judge Friendly's separate opinion that Collins' confession was "involuntary" as a matter of law. I believe, however, that there are more basic, and less nebulous, grounds which require a reversal in this case and which merit exposition. What is said hereafter, therefore, is my expression alone.

The district court recognized that tangible evidence obtained through unconstitutional searches and seizures is inadmissible in a State court. Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 681.⁴ However, the court declined to construe Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441, and Gatlin v. United States, 1963, 117 U.S.App.D.C. 123, 326 F.2d 666, holding that statements made following an unlawful arrest were inadmissible as being based, like Mapp, on the Constitution. The court stated:

"The Wong Sun and Gatlin cases did indeed hold inadmissible the incriminating statements obtained from defendants while under illegal arrest, but both cases dealt with federal convictions, and both decisions appear to have been largely, if not entirely, govered sic by the federal evidentiary principles which find their genesis in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). * * * The McNabb rule has been repeatedly and emphatically characterized as a mere evidentiary rule for the federal courts, drawn under the supervisory powers of the Supreme Court, and of far less than constitutional force. * * *

* * * * * *

"Thus, assuming the petitioner is correct in alleging that his confession was obtained while he was unlawfully in custody, he has not, without more, established its inadmissibility."

I disagree. Wong Sun's exclusionary rule is equally applicable in both state and federal courts. If any hint of this were needed outside of the language of the Wong Sun opinion itself, the Supreme Court gave such a hint prior to the decision here under review when it vacated the judgment in State v. Traub, 1962, 150 Conn. 169, 187 A.2d 230, and remanded the case "for further consideration in light of Wong Sun * * *." Traub v. Connecticut, 1963, 374 U.S. 493, 83 S.Ct. 1899, 10 L.Ed.2d 1048; cf. Fahy v. State of Connecticut, 1963, 375 U.S. 85, 90-91, 84 S.Ct. 229, 11 L.Ed.2d 171. Also prior to the district court's decision, this court went on record as finding Wong Sun based, not upon the Supreme Court's supervisory power, but upon the Constitution. Rogers v. United States, 5 Cir., 1964, 330 F.2d 535, 541 (dictum). I endorse the position...