State v. Pollock

• Decision Date: 09 September 1980
• Docket Number: No. WD 30896.,WD 30896.
• Citation: 603 S.W.2d 614
• Parties: STATE of Missouri, Respondent, v. Connie Eldwin POLLOCK, Appellant.
• Court: Missouri Court of Appeals

603 S.W.2d 614

STATE of Missouri, Respondent, v. Connie Eldwin POLLOCK, Appellant.

No. WD 30896.

Missouri Court of Appeals, Western District.

June 9, 1980.

Motion for Rehearing and/or Transfer Denied July 8, 1980.

Application to Transfer Denied September 9, 1980.

Russell Clyde Still, Columbia, for appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Lew A. Kollias, Asst. Attys. Gen., Jefferson City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 8, 1980.

SHANGLER, Judge.

The defendant was convicted of robbery in the first degree and sentenced to a term of imprisonment for twenty-five years. The appeal contends, among other grounds, that the confession in evidence was involuntary and otherwise inadmissible because the product of an unlawful arrest.

The contention that the confession was not admissible evidence was raised by formal motion and determined by a hearing in limine. The admission was taken from the defendant Pollock in an Iowa county jail where he and Joan Shinn, a companion, were held for a local burglary. The statement, given to Officers Muse and Garrison of the Columbia Police Department, acknowledges commission of armed robbery of the Regal 8 Motel in Columbia on May 7, 1978—the crime charged against the defendant by the information on trial. The principals all gave testimony on the motion, and the court ruled the confession admissible evidence. The exclusion of the statement from evidence rests on contentions that the admission was involuntary because taken by the police after the defendant once refused their inquiry and while the defendant was held by unlawful arrest.

These contentions stated as separate grounds are but aspects of the same question: was the inculpatory statement by the defendant an act of free will? The exclusion of a confession does not result merely because it follows an illegal arrest, but only when that smirch renders the admission involuntary. Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963); State v. Fair, 467 S.W.2d 938, 943 (Mo. banc 1971). Nor does such a confession qualify as evidence because a Miranda warning intervened, but only when the admission is unaffected by the original illegality. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975); State v. Johnson, 530 S.W.2d 690, 693 (Mo. banc 1975). The act of a free will which renders voluntary a confession taken during an unlawful arrest custody, however, requires more than that the statement conforms with the Fifth Amendment value against self-incrimination, but also with the Fourth Amendment value against incursion upon the person by an unreasonable search or seizure. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 2252, 60 L.Ed.2d 824 (1979); United States v. Perez-Esparza, 609 F.2d 1284, 1289 (9th Cir. 1979). That is because the policy of the Fifth Amendment is to deter police misconduct by the exclusion of coerced confession, whereas the policy of the Fourth Amendment is not only to deter but to protect the integrity of the judicial process. Thus Dunaway v. New York, supra, l. c. 99 S.Ct. 2259

although a confession after proper Miranda warnings may be found "voluntary" for purposes of the Fifth Amendment, this type of "voluntariness" is merely a "threshold requirement" for Fourth Amendment analysis . . . Beyond this threshold requirement Brown articulated a test designed to vindicate the "distinct policies and interests of the Fourth Amendment."

The test to which Dunaway adverts—declared in Brown v. Illinois, supra, l. c. 422 U.S. 603, 95 S.Ct. 2261—is that a confession taken under unlawful arrest is the product of a free will only when there is no causal connection between one event and the other. The relevant inquiry to determine whether the confession was an exploitation of the original illegality focuses on Brown v. Illinois, supra, l. c. 603, 95 S.Ct. 2261

the temporal proximity of the arrest and the confession, the presence of intervening circumstances . . . and, particularly, the purpose and flagrancy of the official misconduct . . . .

Thus, the usual inquiry as to age, education, infirmity and any other consideration of susceptibility to coercion which determines the voluntariness of a confession for Fifth Amendment purposes, is augmented by evidence of the illegal arrest to determine for Fourth Amendment purposes whether the confession is "sufficiently an act of free will to purge that primary taint." Wong Sun v. United States, supra, l. c. 471 U.S. 486, 83 S.Ct. 416; Brown v. Illinois, supra, l. c. 422 U.S. 602, 95 S.Ct. 2261; State v. Johnson, supra, l. c. 693.

The evidence on the Motion to Suppress shows that on October 16, 1978, two Missouri detectives, Officers Muse and Garrison from Columbia, obtained a confession from the defendant that he robbed the Regal 8 Motel in May of 1978. The confession was given in a county jail in Iowa where the defendant and his companion, Joan Shinn, were held by the local authority for burglary. The defendant was known to the Iowa authority under the alias Dennis Brannum rather than Connie Pollock. The officers were prompted to Iowa by information that an automobile which bore the license plate number of a vehicle involved in a Columbia, Missouri homicide was driven by the person in custody in Iowa. The officers informed the officers at the Iowa county jail that they had come to interview Pollock who, they believed, was held there as Brannum. They surmised the true identity because Joan Shinn, his inseparable companion, was in the custody also, but under her true name.¹ They had come to inquire about a homicide. The officers were taken to an open detention area and identified the defendant to the Iowa sheriff as Connie Pollock. At that so Pollock testified, the defendant told the sheriff: "I didn't know them and didn't particularly care to see them." The officers nevertheless were given the opportunity to speak with them, so they had access, first to Shinn and then to Pollock, but neither had anything to say. Each was confronted separately, and conversation with the defendant was preceded by a Miranda warning and disclosure that the subject of interview was two recent robberies and a homicide in Columbia, Missouri. The defendant continued to refuse interview by insistence to the Iowa authority according to his own testimony "because I wasn't who they said I was." The two, Shinn and Pollock, were brought together and according to defendant the officers confronted him with the evidence of his guilt and brought up the possibility of a penitentiary sentence for Joan Shinn. The officers testified that the interviews ended within twenty minutes. The defendant testified interrogation persisted from shortly after 5 p. m. until midnight. It was the evidence of Joan Shinn that the interview lasted "maybe an hour."²

On the next morning, October 16, 1978, at about 9 a. m., Officers Muse and Garrison returned to the Iowa county jail to attempt interview again of the defendant. As they approached the outer jail entrance, Pollock shouted to them that he would like to talk with them. That was prompted, according to Pollock, by the blandishments of the officers the night before for his confession in exchange for the release of Joan Shinn from charges. That night, he took up the proposal with "Joani about making false statements to cut her loose," and called to the officers that morning to confess on that condition. The officers entered the detention area and were told by Pollock: "I have a couple of burglaries, couple of robberies." With that, the defendant confessed to three separate crimes, two burglaries and the robbery of the Regal 8 Motel. In advance of each confession, Officer Muse advised Pollock of his rights under Miranda, Pollock executed a written waiver of rights, and signed a confession written by Muse and witnessed by Garrison. The defendant Pollock and Joan Shinn returned to Columbia, Missouri with the officers that day.³

The Motion to Suppress pleads that the confession to the robbery was the product of arrest without warrant or probable cause and that the statement of inculpation was otherwise coerced because induced by a promise to release Joan Shinn, among other irregularity. The burden to show that a confession taken during unlawful custody is admissible rests on the prosecution. Brown v. Illinois, supra, l. c. 422 U.S. 604, 95 S.Ct. 2262. The burden is acquitted by a preponderance of the evidence. State v. Olds, 569 S.W.2d 745, 7514 (Mo. banc 1978). The evidence by the prosecution, however, presupposes a state of facts upon which proof can proceed. State v. Rutledge, 524 S.W.2d 449, 4552 (Mo.App.1975). The claim to infringement of the Fifth Amendment right against involuntary self-incrimination is amply stated by allegations of an induced confession and other official conduct of coercion. The claim to infringement of the Fourth Amendment right against seizure except on warrant and probable cause, however, merely contends that the confession was "the direct result of defendant's warrantless arrest, and that said arrest was made without probable cause." We assume for purpose of decision, nevertheless, that the motion pleads a justiciable ground of taint.⁴ But see: U. S. v. Diezel, 608 F.2d 204, 2073 (5th Cir. 1979); U. S. v. Cella, 568 F.2d 1266, 128419, 20 (9th Cir. 1977); State v. Fields, 535 S.W.2d 56, 57 (Mo.App. 1976); State v. Nolan, 423 S.W.2d 815, 8185-9 (Mo.1968).

The prohibition of the Fifth Amendment is against exaction of confession by any improper influence. Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964). A promise of leniency which overbears the will and brings about confession induces an involuntary admission of guilt. Hunter v. Swenson, 372 F.Supp. 287, 3006-9, aff'd 504 F.2d 1104 (8th Cir. 1974). The defendant contends that his attachment for Joan...