United States v. Tymond Preston

concurring in the judgment:

I concur in the judgment reached by the majority that the confession given by Preston was involuntary under the totality of the circumstances. For me, the case does not need elaborate analysis: The United States Supreme Court has said that involuntary confessions are not admissible, and that we consider the totality of the circumstances in assessing voluntariness. See Dickerson v. United States, 530 U.S. 428, 434 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000). Preston’s confession was involuntary primarily because of the confluence of three factors: Preston’s intellectual disability, the strongly inculpatory nature of the officers’ either-or questioning, and the officers’ false promises that what Preston said would be kept private. Together, these factors were sufficient to overbear the will of Preston and make his confession involuntary.

First and foremost, Preston had extremely limited mental capacity. He was led to agree with strong, affirmative statements made by authority figures, with less consideration and without the independent will that could be exercised by a person of average or superior intelligence. I do not think every person of below…

Today we consider the voluntariness of a confession given by Tymond Preston, an intellectually disabled eighteen-year-old. To elicit this confession, the police, among other tactics, repeatedly presented Preston with the choice of confessing to a heinous crime or to a less heinous crime; rejected his denials of guilt; instructed him on the responses they would accept; and fed him the details of the crime to which they wanted him to confess. Under the totality of the circumstances, including Preston’s intellectual disability, we conclude that the confession that resulted from this questioning was involuntarily given and should not have been admitted at trial.

I

Background,

A. The Accusation

At the time of the underlying events, Tymond Preston was eighteen years old. Preston has an IQ of sixty-five, which the Supreme Court recognizes as within the range of intellectual disability. 1 See Atkins v. Virginia, 536 U.S. 304 , 309 n. 5, 122 S.Ct. 2242 , 153 L.Ed.2d 335 (2002) (describing an IQ below seventy-five as within the range of mental retardation). 2 He attended special education classes beginning in elementary school, and did so until he dropped out of high school.…

specially concurring:

Because I agree with the majority that we should reverse and remand this case for a new trial, I concur in the judgment. 1 I also agree with the majority that, to decide the voluntariness of a confession resulting from a non-custodial police interview, we consider the totality of the circumstances in which the suspect makes the confession, including the relevant characteristics of the suspect. Doody v. Ryan, 649 F.3d 986, 1008 (9th Cir.2011) (en banc). But I view the totality of the circumstances differently than the majority. In particular, I think that the officers’ false promises about the nature of the interview, coupled with Preston’s intellectual disability, coerced Preston into confessing, but most of the tactics employed by the officers were not coercive.

*1030 I.

Many aspects of the interview were not coercive.

First, Preston was not in custody at the time of the interview. Two law enforcement officers, wearing plain clothes and arriving in unmarked cars, approached Preston outside his home. One was not armed, and the other did not display a weapon at any time. The entire conversation took place outside Preston’s home; when asked whether he would…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10511 Plaintiff-Appellee, D.C. No. v. 3:10-cr-08026-GMS-1

TYMOND J. PRESTON,

Defendant-Appellant. OPINION

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Argued and Submitted En Banc December 10, 2013—San Francisco, California

Filed May 12, 2014

Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt, John T. Noonan, Sidney R. Thomas, Susan P. Graber, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Morgan Christen and Paul J. Watford, Circuit Judges.

Opinion by Judge Berzon; Concurrence by Judge Graber; Concurrence by Judge Gould SUMMARY*

Criminal Law

Reversing a conviction and remanding for a new trial, the en banc court held that under the totality of the circumstances, including the eighteen-year-old defendant’s intellectual disability, the confession that resulted from police questioning was involuntarily given and should not have been admitted at trial.

The en banc court explained that it cannot…