Harold C. Medeiros v. Edwin Shimoda, Administrator, Oahu Community Correctional Center Corinne K.A. Watanabe, Attorney General of the State of Hawaii

dissenting:

As I read Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), it reaffirms the rebuttable presumption that an initial confession, even if voluntary, has a coercive effect tending to undermine *827 the voluntariness of subsequent confessions as articulated by the Supreme Court in United States v. Bayer, 331 U.S. 532 , 67 S.Ct. 1394 , 91 L.Ed. 1654 (1947). Because the presumption of coerciveness arising from Medeiros’ initial confession was not rebutted by any significant intervening events, I respectfully dissent.

The voluntariness inquiry in this case requires us to revisit the “cat out of the bag” doctrine as applied to successive confessions in light of Elstad . Elstad first incriminated himself in response to police interrogation at his parents’ home. After being read his Miranda rights an hour later at the police station, he gave and signed a full confession. As in this case, the state trial court suppressed Elstad’s first statement on the ground it was obtained in violation of Miranda, but rejected Elstad’s argument that the first statement, in letting the cat out of the bag, undermined the voluntariness of his later confession because it…

This appeal presents an issue of first impression in this circuit: whether an in-custody, unsolicited statement, not made in response to any police interrogation, must be suppressed because it followed an earlier voluntary statement made in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). 1

*821 1. Factual and Procedural History

On June 13, 1979, Thompson Myers was shot at close range with a flare gun outside the Wonder Bar in Honolulu, Hawaii. Shortly thereafter, Officer Trela stopped the appellant, Harold C. Medeiros, who was driving an automobile which matched the description given by witnesses to the shooting. Medeiros’ eyes were red and glassy and he had an odor of alcohol about him. Medeiros asked Officer Trela why he had been stopped. Officer Trela replied that “there had been a shooting at the Wonder Bar and that [Medeiros’] automobile matched the description of one identified as leaving the scene.” Officer Trela then asked Medeiros where he was coming from, without first advising him of his Miranda rights. Medeiros replied that he had come from the Wonder Bar and then spontaneously incriminated himself with respect to the shooting.…

889 F.2d 819 58 USLW 2374 Harold C. MEDEIROS, Petitioner-Appellant, v. Edwin SHIMODA, Administrator, Oahu Community Correctional Center; Corinne K.A. Watanabe, Attorney General of the State of Hawaii, Respondents-Appellees. No. 86-2376. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 6, 1987. Decided Nov. 8, 1989. John Ashford Thompson, Honolulu, Hawaii, for petitioner-appellant. Alexa D.M. Fujise, Deputy Pros. Atty., Honolulu, Hawaii, for respondents-appellees. Appeal from the United States District Court for the District of Hawaii. Before POOLE, NORRIS and BRUNETTI, Circuit Judges. BRUNETTI, Circuit Judge: 1 This appeal presents an issue of first impression in this circuit: whether an in-custody, unsolicited statement, not made in response to any police interrogation, must be suppressed because it followed an earlier voluntary statement made in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). 1 I. Factual and Procedural History 2 On June 13, 1979, Thompson Myers was shot at close range with a flare gun outside the Wonder Bar in Honolulu, Hawaii. Shortly thereafter, Officer Trela stopped the appellant, Harold C.…