United States v. Jody Myesha Orso

275 F.3d 1190 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JODY MYESHA ORSO, DEFENDANT-APPELLANT. No. 99-50328 D.C. No. CR-98-00024-LGB-01 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed December 28, 2001 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. 1 Order; Concurrence by Judge O'Scannlain; Dissent by Judge Trott ORDER 2 A sua sponte call for full court en banc rehearing was made by a member of the Court. The full court was advised of the call. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of full court en banc reconsideration. See Fed. R. App. P. 35; Ninth Cir. R. 35-3. 3 The sua sponte call for full court en banc rehearing is, accordingly, REJECTED. 4 O'SCANNLAIN, Circuit Judge, with whom Circuit Judges KOZINSKI, KLEINFELD, and GOULD join, specially concurring in the denial of full court en banc rehearing: 5 Judge Trott's impassioned dissent from our denial of full court en banc…

Order; Concurrence by Judge O’SCANNLAIN; Dissent by Judge TROTT

ORDER

A sua sponte call for full court en banc rehearing was made by a member of the Court. The full court was advised of the call. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of full court en banc reconsideration. See Fed. R.App. P. 35; Ninth Cir. R. 35-3.

The sua sponte call for full court en banc rehearing is, accordingly, REJECTED.

specially concurring in the denial of full court en banc rehearing:

Judge Trott’s impassioned dissent from our denial of full court en banc rehearing in this case makes clear that he disapproves of the methods that the police employed which produced Jody Orso’s Miran-dized confession in this case. His views are perfectly reasonable. And who knows — if this court were free to rewrite Fifth Amendment law I might well agree with him. But we are not free to rewrite the law. And that is where I part company with Judge Trott and his merry band of dissenters.

To begin, let us remember that this court does not sit as a kind of super- *1191 Citizens’ Police Review Board, creating some set of federal common-law police regulations for local law enforcement officers in this circuit by distinguishing, on a case-by-case basis, “good” police conduct from “bad.” Instead, our only proper role in this context is to determine whether police conduct has in some way rendered the admission of evidence at a criminal trial violative of a defendant’s constitutional rights. In short, not everything that this court might consider “bad” (or “improper”) is accordingly unconstitutional. Cf. Pittsley v.…

Dissenting:

For years, we found ourselves entangled in a spirited debate: Did Miranda announce a constitutional rule, or are the Miranda warnings merely a lesser species of prophylactic incantations designed to protect the Fifth Amendment’s privilege against self-incrimination? In Dickerson v. United States, the Supreme Court answered this significant and consequential question, holding that Miranda announced a constitutional rule, not merely a fungible ritual for which something lesser could be substituted. 530 U.S. 428, 442 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000). In so holding, the Supreme Court rejected the idea that Congress could override the eonstitu- *1193 tional strictures of Miranda by passing a law (1) designating voluntariness as the touchstone of admissibility of a suspect’s in-custody statements, and (2) creating a' test wherein the administration of Miranda rights to the person interrogated is not dispositive, one way, or the other. See id. at 442-43 , 120 S.Ct. 2326 ; see also 18 U.S.C. § 3501 (1968). The pesky Cheshire Cat with his § 3501 grin has been chased from the scene.

Dickerson clarified that Miranda requires law enforcement officers to “warn a suspect…