616 F.2d 870 (5th Cir. 1980), 78-2459, Harryman v. Estelle

Docket Nº:78-2459.
Citation:616 F.2d 870
Party Name:Burley Clifton HARRYMAN, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
Case Date:May 09, 1980
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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616 F.2d 870 (5th Cir. 1980)

Burley Clifton HARRYMAN, Petitioner-Appellant,

v.

W. J. ESTELLE, Jr., Director, Texas Department of

Corrections, Respondent- Appellee.

No. 78-2459.

United States Court of Appeals, Fifth Circuit

May 9, 1980

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Michael Anthony Maness, Houston, Tex., for petitioner-appellant.

Douglas M. Becker, Randy E. Drewett, Barbara M. Barron, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before COLEMAN, Chief Judge, BROWN, AINSWORTH, GODBOLD, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, and THOMAS A. CLARK, Circuit Judges. [*]

FRANK M. JOHNSON, Jr., Circuit Judge:

This is an appeal from the denial of a motion filed pursuant to 28 U.S.C. § 2254 for habeas corpus relief from a conviction and sentence imposed upon Burley Clifton Harryman by the Texas state courts.

In January, 1973, a Texas jury convicted Harryman of unlawful possession of heroin and assessed punishment at confinement for life in a Texas penitentiary. 1 Harryman was sentenced accordingly, 2 and the

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conviction and sentence were affirmed on appeal. Harryman v. State, 522 S.W.2d 512 (Tex.Cr.App.1975).

In June, 1976, Harryman applied to the United States District Court for the Northern District of Texas for a writ of habeas corpus. He contended, as he had in state court, that the introduction into evidence of an incriminating statement made by him after his arrest but before he was given any of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), violated his constitutional rights. 3 After argument, the district court accepted the findings and recommendations of a magistrate and concluded that although admission of the statement had been an error of constitutional dimensions, it had been harmless. The district court denied the writ. A panel of this Court reversed that determination and ordered that the writ be issued. Harryman v. Estelle, 597 F.2d 927 (5th Cir. 1979). The panel opinion was automatically vacated when we granted a rehearing en banc. Harryman v. Estelle, 602 F.2d 1244 (5th Cir. 1979). See 5th Cir. R. 17.

The facts are as follows. On August 25, 1972, Harryman registered at a Dallas, Texas, motel. On the evening of September 7, 1972, with Harryman several days behind in his rent, with the motel nearing capacity, and with efforts to reach Harryman having proved futile, an assistant manager of the motel named Sandra Wood entered Harryman's room to remove his belongings. In addition to finding traditional personal belongings such as clothing, she discovered a high-powered rifle with a telescopic sight and a variety of apparent narcotics paraphernalia, including at least two spoons that had been burned on the bottom and a number of syringes. She removed everything to a utility closet and called the police.

Two patrolmen responded. One, accompanied by two narcotics officers called in to assist, searched Harryman's room with no result. The other examined the removed belongings. A radio check revealed that the rifle had been reported stolen in Colorado. A radio check also revealed that the license plates on the car with which Harryman had registered into the motel had apparently been stolen. The officers explained to Wood what they had found, told her that they thought it unlikely that Harryman would return, but asked her to call the police station if he did. They then confiscated everything that had been taken from Harryman's room and departed.

About eight hours later, at approximately 4:30 a. m., Harryman did return and Wood again called the police. While Harryman was in the lobby paying his bill and attempting to retrieve his belongings, two

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different patrolmen arrived. While Wood explained to one what the other officers had found earlier, the other asked Harryman, at Wood's request, to step outside and calm down. Harryman conceded in his state court appeal that he did so voluntarily. The two officers then placed Harryman under arrest. One of the officers searched his person and found concealed at the base of his back, tucked under the waist band of his trousers, a condom containing a white powdered substance. Before reciting the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the officer asked, "What is this?" Harryman responded, "Oh, you know what it is. It is heroin."

Following an evidentiary hearing, the trial court denied Harryman's motion to suppress the statement. The arresting officers testified to the statement at trial as part of the state's case in chief, and it was adverted to by the prosecution in closing argument.

I.

The core of the Supreme Court's holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was that:

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Id. at 444, 86 S.Ct. at 1612 (footnote omitted).

It seems plain that Miranda, was violated here. It is uncontested that a police officer asked Harryman a question, that Harryman made a direct response, that Harryman was in custody at the time and that he had not yet received a recitation of his rights. The prosecution used the response at trial as part of its case in chief.

The basis of the state's contention that Miranda was not violated is its claim that Harryman was not subjected to the kind of police questioning that the Supreme Court in Miranda sought to control. It argues that the question asked Harryman was not an attempt to elicit an answer of any sort, much less evidence of a crime, but was rather an exclamation of surprise.

This argument misunderstands Miranda. Prior to Miranda, the Supreme Court attempted to protect an accused from improper police questioning by holding inadmissible statements that appeared to have been involuntary in light of the totality of their surrounding circumstances, including the characteristics of the accused and the details of the interrogation. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Spano v. New York, 360 U.S. 315, 321 n. 2, 79 S.Ct. 1202, 1206 n.2, 3 L.Ed.2d 1265 (1959) (citing 28 cases). Were we to follow such an approach here, we might well find that Harryman's statement was voluntary and therefore properly admitted.

But in Miranda, the Court found the totality of the circumstances approach inadequate. Recognizing that in-custody questioning has inherently coercive tendencies, the Court adopted in its place a set of rigid procedural rules. It held that until these rules have been followed, and an accused has been adequately informed of and waived his rights, he may not be questioned. If he is questioned, any statements he makes in response cannot be presented by the prosecution as part of its proof at trial. 384 U.S. at 444-91, 86 S.Ct. at 1612-36. See Michigan v. Tucker, 417 U.S. 433, 443-44, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974).

The rigidity of the Miranda rules and the way in which they are to be applied was conceived of and continues to be recognized as the decision's greatest strength. E. g., Tague v. Louisiana, --- U.S. ----, 100 S.Ct. 652, 62 L.Ed.2d 622 (1980); Miranda v. Arizona, 384 U.S. at 479, 86 S.Ct. at 1630. See also Fare v. Michael C., 439 U.S. 1310, 1314, 99 S.Ct. 3, 5, 58 L.Ed.2d 19

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(1978) (Rehnquist, J., on application for stay) (calling rigidity of Miranda its "core virtue"). The decision's rigidity has afforded police clear guidance on the acceptable manner of questioning an accused. It has allowed courts to avoid the intractable factual determinations that the former totality of the circumstances approach often entailed. When a law enforcement officer asks a question of an accused and the accused, without the benefit of Miranda's safeguards, answers, the totality of the circumstances is irrelevant. The accused's answer is simply inadmissible at trial as part of the prosecution's case in chief.

The state's suggestion that we abandon Miranda's rigidity here and temper its prohibition of all unsafeguarded police questioning must be declined. It is not for us to redefine Miranda's scope. See, e. g., Fare v. Michael C., 439 U.S. at 1314, 99 S.Ct. at 5.

Under Miranda, courts have no reason or mandate to consider whether, as the state suggests here, a law enforcement officer's question was not really a question because, objectively considered, it did not call for a response. 4 As this case itself illustrates, this would entail just the kind of difficult and often impossible factual inquiry that the Miranda rules purposely preempt. 5 For purposes of Miranda, and the accused's Fifth Amendment right not to be compelled to incriminate himself, it is enough to decide that what the officer said could reasonably have had the force of a question on the accused. 6 That this was the case here is apparent from the fact that, and the way in which, Harryman responded.

Under Miranda, courts also have no reason or mandate to consider whether or not a police question was asked in an attempt to elicit evidence of a crime. 7 Here again the factual difficulties inherent in such an inquiry are of the very sort the Supreme Court in Miranda thought essential to avoid...

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