Dennis Rosa Collazo v. Wayne Estelle, Warden, California Mens Colony

(dissenting separately):

This case is en banc because a majority of our active judges believed that an important Sixth Amendment question, the right to counsel, may have been incorrectly dealt with by all the other courts, including our original panel, that have examined the question.

In the state court system the primary focus appears to have been on the question of Fifth Amendment voluntariness. The most troublesome question now is whether Collazo called the officers back on his own motion, or because he felt “pressured” by Officer Destro to do so. In this connection, the majority's footnotes carry most of the burden.

For example, footnote 2 says that California admits that “pressuring” is an appropriate characterization of Officer Des-tro’s tactics. I agree, but that leads to the next footnote.

Footnote 3 sets up the state trial court’s merger of the Fifth and Sixth Amendments and helps to explain the resulting confusion. The state court listened to the tapes, found the confession “voluntary beyond any reasonable doubt,” and then disposed of the right-to-counsel issue with the throw-away line that there was “no taint whatsoever to his ultimate statement.”

Footnote 8 takes…

Appellant Collazo was arrested for murder and advised of his Miranda rights. He declined to waive them, asking instead to talk to a lawyer. The police responded to his request by telling Collazo it “might be worse” for him if he talked to an attorney, and that it was in his interest to talk to them without one. Three hours later, he “changed his mind,” was readvised of his rights, and talked to the police. What he told them was used to convict him and send him to prison. We are called on in this appeal to examine the conduct of the police leading up to Collazo’s confession, and to decide in light of that conduct whether Collazo was denied due process when his confession was introduced in evidence. We conclude that Collazo’s confession was involuntary, and that its use to convict him violated his Constitutional rights. We reverse the district court.

I

On September 27, 1982, Dennis Collazo, an occasional informant and undercover operative for the Drug Enforcement Administration, was arrested for the murder of Douglas Metzger. Metzger often sold cocaine to Collazo’s niece, who owed Metzger a considerable debt arising from her purchases. When Collazo’s niece expressed a desire to…

concurring:

There is much in both of the principal opinions with which I agree. The dissent clearly has the better of the argument on the purely factual question whether Colla-zo’s confession was coerced. Were we deciding only that issue, I would have no difficulty concluding that Collazo knew exactly what he was doing when he asked to talk to the police the second time.

I come down on the side of the majority, however, because the Supreme Court has told us that voluntariness is not merely a fact-bound question whether this particular suspect’s confession is the product of coercion, but also a legal question about whether the techniques the police used were tolerable. As the Court noted in Miller v. Fenton, 474 U.S. 104, 116 , 106 S.Ct. 445, 452 , 88 L.Ed.2d 405 (1985), “the admissibility of a confession turns as much on whether the techniques for extracting the statement, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant’s will was in fact overborne.” The question before us, then, is whether the technique used here risks overcoming the will of the…

with whom BEEZER and NOONAN, Circuit Judges join, dissenting:

To paraphrase the great Bard of Avon, “[t]he [majority] doth protest too much, methinks.” W. Shakespeare, Hamlet, III, ii. In a noble attempt to vindicate important legal principles, my colleagues have misinterpreted and exaggerated the essential and dispositive facts of this case. More importantly, they have unjustifiably expanded the prophylactic rules that govern the waiver of an accused’s constitutional rights to legal assistance and against self-incrimination. I therefore respectfully dissent.

I

A

In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the Supreme Court held that “an accused ..., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Id. at 484-85, 101 S.Ct. at 1884-85 (emphasis added). Elaborating upon the importance of this italicized language, which my colleagues now excise from the Court’s holding, the Court wrote:

*428 Id. at 485-86, 101…

940 F.2d 411 60 USLW 2155 Dennis Rosa COLLAZO, Petitioner-Appellant, v. Wayne ESTELLE, Warden, California Mens Colony, Respondent-Appellee. No. 88-2443. United States Court of Appeals, Ninth Circuit. Argued En Banc and Submitted Oct. 9, 1990. Decided July 18, 1991. William D. Farber, San Rafael, Cal., for petitioner-appellant. Aileen Bunney, Supervising Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee. Appeal from the United States District Court for the Northern District of California. Before GOODWIN, HUG, FLETCHER, POOLE, D.W. NELSON, REINHARDT, BEEZER, KOZINSKI, NOONAN, O'SCANNLAIN and TROTT, Circuit Judges. TROTT, Circuit Judge: 1 Appellant Collazo was arrested for murder and advised of his Miranda rights. He declined to waive them, asking instead to talk to a lawyer. The police responded to his request by telling Collazo it "might be worse" for him if he talked to an attorney, and that it was in his interest to talk to them without one. Three hours later, he "changed his mind," was readvised of his rights, and talked to the police. What he told them was used to convict him and send him to prison. We are called on in this appeal to examine the conduct of the…