USA. v. Orso

• Decision Date: 17 September 2001
• Docket Number: DEFENDANT-APPELLANT,No. 99-50328,PLAINTIFF-APPELLEE,99-50328
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. JODY MYESHA ORSO,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1030

266 F.3d 1030 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JODY MYESHA ORSO, DEFENDANT-APPELLANT.

No. 99-50328

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 21, 2001

Filed September 17, 2001

Elizabeth A. Newman (argued), Emily S. Uhrig, and Maria E. Stratton, Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Ronald L. Cheng (argued), Wendy O. Clendening, and Alejandro Mayorkas, United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California Lourdes G. Baird, District Judge, Presiding. D.C. No. CR-98-00024-LGB-01

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.

Opinion by Judge O'Scannlain; Concurrence by Judge Paez

O'scannlain, Circuit Judge.

We must decide whether a Mirandized confession by a suspect in custody must be suppressed because it immediately followed her arguably incriminating un-Mirandized statements.

I.

While delivering mail, Vicki Orr, a postal letter carrier, was approached by Jody Myesha Orso. Orso demanded that Orr produce her arrow keys, used to open United States Postal Service ("USPS") collection boxes and group mailboxes at apartment buildings. Orr surrendered the keys to Orso, who fled on foot.

The USPS began an investigation. After USPS Inspectors Anthony Galetti and Shawn Tiller obtained information that made Orso a suspect, they left their cards at her residence, requesting that she call them. Orso responded to the request and spoke with Inspector Tiller by telephone.

Shortly thereafter, a federal arrest warrant was issued for Orso for robbery of a postal letter carrier. More than two months later, Orso was arrested by Redondo Beach police officers on unrelated charges and taken to the Redondo Beach Police Department. The arresting officers, upon learning of the federal warrant, notified Inspector Galetti that they were holding Orso. Inspectors Tiller and Galetti took Orso into their custody and drove her to the Postal Inspection Service Office ("office") to conduct a formal interview.

Orso was handcuffed and placed in the back seat of the vehicle for the length of the drive from the police station to the office, which took between 25 and 35 minutes. It is undisputed that Orso was not informed of her Miranda rights at any time before or during the car ride.

For the first 15 minutes of the drive, the inspectors and Orso engaged in conversation unrelated to the actual robbery. About half-way through the ride, Inspector Galetti began to discuss the robbery with Orso. According to Inspector Galetti, he preceded his comments by admonishing Orso not to say anything. He proceeded to inform her of the evidence implicating her in the robbery. Inspector Galetti later admitted that he lied to Orso during this colloquy, telling her that a witness to the robbery thought that she might have seen a gun used, even though he knew of no such evidence. Inspector Galetti then informed Orso that the maximum statutory penalty for armed robbery of a letter carrier was 25 years incarceration. He also told her that he did not believe that she used a gun, and that the statutory maximum penalty for unarmed robbery of a letter carrier was ten years, but that a more realistic sentence for unarmed robbery would be five years. Orso responded by saying, "Oh, I can do five years."

Inspector Galetti then informed Orso that the letter carrier had identified her as being the robber. In response to this statement, Orso said she "had never stood in a lineup before." Inspector Galetti continued, explaining that it was actually a picture of her that the letter carrier picked out. Inspector Galetti then told Orso that others involved in the robbery had identified her. At that point, Orso allowed, "Well, if the letter carrier said it's me, then it must be me." Inspector Galetti also told Orso that an individual named Main was believed to be the driver of the car involved in the robbery. When Orso indicated that she did not know anybody by that name, Inspector Galetti began to describe Main's appearance, to which Orso replied, "Oh, the gold-toothed boy."

Upon arrival at the office, Orso asked the inspectors if they would allow her to see her two-year old daughter. Inspector Tiller testified that he told her she "probably " could. Indeed, before transporting Orso to the detention center, the inspectors took Orso to see her daughter.

Soon after the inspectors arrived at the office with Orso, and only a little more than ten minutes after she made the statements in the car, the inspectors read her the Miranda warnings, and she immediately waived her rights by signing a standard form. The inspectors then interviewed Orso for approximately one and a half hours, during which time she fully confessed to her involvement in the robbery.

A federal grand jury returned a one-count indictment charging Orso with unarmed robbery of a postal letter carrier in violation of 18 U.S.C. §§ 2114(a). Orso initially entered a plea of not guilty. She then moved to suppress both the statements she made in the car prior to receiving the Miranda warnings and the post-warning statements she made at the office. The district court held a hearing on the motion and, after taking evidence from the inspectors and Orso, denied the motion with respect to both sets of statements. Orso subsequently entered a conditional guilty plea, and was sentenced to a term of 37 months in prison. She timely appeals the district court's order denying her motion to suppress.

II.

Orso argues that the district court erred by failing to suppress the statements she made while riding in the back seat of the car and before she had been read the Miranda warnings. Under Miranda v. Arizona, 384 U.S. 436 (1966), Orso's unwarned statements must be suppressed if they were elicited while she was in custody, and under interrogation. Id. at 444. On appeal, the United States concedes Orso was in custody while in the car, and disputes only whether she was under interrogation.¹

"[T]he 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." Innis, 446 U.S. at 301 (footnote omitted). During the car ride, and without giving the Miranda warnings, Inspector Galetti engaged Orso in several minutes of detailed discussion regarding the evidence against her, the witnesses against her, and the statutory penalties for the crime of which she was suspected. Indeed, he went so far as to make up some of the evidence which he said existed against her. Although Inspector Galetti testified that he preceded his comments by admonishing her not to speak, we are persuaded that he should have known that it was reasonably likely his comments would cause her to respond. It is hard to see any purpose for the long and detailed discussion in the car, especially his false statement of the evidence against Orso, other than to elicit incriminating responses from her. Inspector Galetti conceded as much in the evidentiary hearing before the district court; in explaining his delay in administering the Miranda warnings, he testified: "we wanted to eventually speak with Miss Orso and thought that if we Mirandized her right away that she might not want to speak with us." Accordingly, we hold that Orso was under interrogation while she was in the car, and, therefore, the statements she made prior to the Miranda warnings must be suppressed.

III.

Orso also argues that the district court erred by failing to suppress her full confession at the office. Although the inspectors read Orso her Miranda rights prior to receiving her full confession, Orso nonetheless contends that her confession should be suppressed because it was "tainted" by the Miranda violation surrounding her earlier statements in the car.²

A.

The Supreme Court considered a similar question in Oregon v. Elstad, 470 U.S. 298 (1985). In Elstad, the police elicited a confession from a suspect prior to giving him the Miranda warnings, but then, after receiving the Miranda warnings, he confessed a second time. Id. at 300-02. The question there, as here, was whether the second confession was inadmissible because it was the fruit of the tainted first confession. The Court concluded that the "fruit of the poisonous tree" doctrine does not operate in the Miranda context in the same way that it does in the Fourth Amendment context.³ Id. at 306-309. That is, even though the earlier statement from the suspect was elicited in violation of Miranda , so long as the earlier statement was not involuntary due to unconstitutional coercion, the subsequent, voluntary, warned statement was still admissible, without regard to whether it was "tainted" by the earlier statement. Id. at 309 ("Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made." (emphasis added)). Only if the unwarned statement was involuntary due to unconstitutional coercion could the warned statement be suppressed as "tainted fruit. " Id. at 310 ("When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.").

Shortly after Elstad was decided, we confirmed that this was the correct understanding of that case:

The Supreme...