United States v. Mark A. Thierman

678 F.2d 1331 UNITED STATES of America, Plaintiff-Appellee, v. Mark A. THIERMAN, Defendant-Appellant. No. 80-1852. United States Court of Appeals, Ninth Circuit. Argued May 12, 1981. Submitted Aug. 14, 1981. Decided June 8, 1982. Marshall D. Tandy, Tucson, Ariz., for defendant-appellant. Rhonda L. Repp, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee; Gerald Frank, Asst. U. S. Atty., Tucson, Ariz., on brief. Before CHOY and WALLACE, Circuit Judges, and WYATT, * District Judge. CHOY, Circuit Judge: 1 Thierman was sentenced to five years imprisonment for burglarizing a post office building, 18 U.S.C. § 2115 , and for several other offenses. His principal claim on appeal is that the admission of his confession violated Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and its progeny. 1 We affirm Thierman's convictions. 2 * On May 1, 1980, the Pima County Sheriff's Department secured a warrant to search Thierman's apartment. Thierman was suspected of involvement in several crimes, including a credit-card fraud and four post-office burglaries. At about 11 p.m., while en route to Thierman's apartment to execute the warrant, Detective Barkman and…

Thierman was sentenced to five years imprisonment for burglarizing a post office building, 18 U.S.C. § 2115 , and for several other offenses. His principal claim on appeal is that the admission of his confession violated Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and its progeny. 1 We affirm Thierman’s convictions.

I

On May 1, 1980, the Pima County Sheriff’s Department secured a warrant to search Thierman’s apartment. Thierman was suspected of involvement in several crimes, including a credit-card fraud and four post-office burglaries. At about 11 p.m., while en route to Thierman’s apartment to execute the warrant, Detective Barkman and Sergeant Pedersen saw Thi-erman driving in the opposite direction. They stopped Thierman, handcuffed him, and read him his Miranda rights. Thierman indicated that he understood his rights and, when asked by the police if he would waive them, said that the police could ask him questions and that he would respond to the ones he wanted to answer. In answering several questions about his apartment and his friends, Thierman appears to have given what are best characterized as half-truths.

The police then proceeded with…

dissenting:

I do not lightly dissent from the majority opinion, for I am convinced that some courts, in their eagerness to effectuate fully the prophylactic safeguards of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) (Miranda), often apply a principle “broader than that required to *1338 implement the policy of Miranda itself.” United States v. Booth, 669 F.2d 1231, 1237 (9th Cir. 1981). Nor am I persuaded that the Supreme Court’s recent decision in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981) (Edwards), is necessarily required by Miranda ; indeed, over four years ago I joined an opinion for this court sitting en banc which rejected a per se rule prohibiting waiver of the Miranda right to counsel closely analogous to the rule subsequently applied by the Court in Edwards. See United States v. RodriguezGastelum, 569 F.2d 482, 483 (9th Cir.) (en banc), cert. denied, 436 U.S. 919 , 98 S.Ct. 2266 , 56 L.Ed.2d 760 (1978). However, I am obligated to apply the law as announced by the Supreme Court. Because I believe the majority has misapprehended the clear import of Edwards and Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 ,…