State v. Doughty

¶1(dissenting).

¶2I agree with the majority’s conclusion that the police officials interrogating respondent while in custody violated his fifth amendment right to counsel. I do not agree that the trial court erred in suppressing all of the evidence the state derived from that constitutional violation.

¶3*309I

¶4The United States Supreme Court has not directly resolved whether the derivative evidence rule articulated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)1, applies to evidence derived solely from statements elicited in violation of the right to counsel protected by the fifth amendment. See Patterson v. United States, 485 U.S. 922, 923, 108 S.Ct. 1093, 1094, 99 L.Ed.2d 255 (1988) (White, J., dissenting from denial of cert.); but cf. Nix v. Williams, 467 U.S. 431, 442, 104 S.Ct. 2501, 2508, 81 L.Ed.2d 377 (1984) (Wong Sun derivative evidence rule applies to evidence obtained in violation of the fifth amendment); United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980) (derivative evidence rule applies to any “fruit” of a constitutional violation).

¶5This court, however, has itself concluded that where police initiate custodial interrogation after an accused requests the presence of an attorney, evidence derived from the accused’s subsequent statements may be inadmissible. See State v. Warndahl, 436 N.W.2d 770 (Minn.1989). Whether the derivative evidence remains admissible or must be suppressed turns on the purpose and flagrancy of the police misconduct, the presence of intervening circumstances, whether the evidence would likely have been discovered absent the police misconduct, and the temporal proximity of the police misconduct to the discovery of the challenged evidence. Id. at 776.

¶6In State v. Wamdahl, police ignored the accused’s request for counsel and initiated further interrogation that eventually produced a confession. Subsequently, however, the accused himself initiated a conversation with the police, formally waived his right to counsel, and offered a second confession. On appeal, he contended that both confessions were inadmissible, arguing that his second confession was derived solely from his illegally obtained initial statement. Id. at 775. Considering the above factors and giving great weight to the fact that the accused himself initiated the conversation that led to his second confession, this court concluded that only the first confession was inadmissible. Id. at 776.

¶7Unlike the accused in Wamdahl, respondent did not initiate the conversation from which police extracted his confession regarding the alleged St. Paul offenses. There is no reason to interpret Officer Hunter’s statement, “I’m very interested in hearing your side of the story,” as anything other than an attempt to prompt respondent, in the coercive context of police custody, to incriminate himself. As both the trial court and the court of appeals concluded, all subsequent conversation with respondent was initiated by the police.

¶8Moreover, both the trial court and the court of appeals determined the derivative evidence at issue would not have been discovered absent respondent’s illegally obtained confession. As well, the period of time separating the custodial interrogation session in which respondent implicated himself in the alleged St. Paul offenses and the discovery of evidence related to those alleged offenses is not so substantial as to overcome the police misconduct at issue. Thus, the trial court and the court of appeals were correct to conclude that all of the evidence derived from respondent’s illegally obtained statements should be suppressed.

¶9II

¶10I agree with the majority that the decision to suppress the testimony of a witness whose identity is revealed through unconstitutional police conduct requires a more extensive inquiry than does the decision to suppress other, inanimate evidence. I do not agree, however, that the trial court erred in conducting that inquiry.

¶11*310When reviewing the suppression of live witness testimony, this court must weigh the same factors it would in reviewing the suppression of any derivative evidence; it must also consider “whether [suppression] would perpetually disable a knowledgeable witness from testifying at trial.” State v. Seefeldt, 292 N.W.2d 558, 560 (Minn.1980) (citing United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978)).2 Whether the witness in question is testifying of her own free will is without question relevant in determining whether her testimony is admissible. Ceccolini, 435 U.S. at 276,, 98 S.Ct. at 1060. However, whether “the victim’s identity was known long before there was any official misconduct” is equally relevant and important for a reviewing court to consider. United States v. Crews, 445 U.S. at 472, 100 S.Ct. at 1250.3

¶12Weighing all of these factors, and taking none as conclusive, it appears to me that the trial court did not clearly err in suppressing testimony from all of the witnesses, including the alleged victim,4 identified on the basis of respondent’s illegally obtained statements. Prior to respondent’s custodial interrogation on November 14, 1988, St. Paul police had no information with which to identify either a victim of or witnesses to the offenses with which respondent was subsequently charged. As both the trial court and the court of appeals concluded, St. Paul police would not have discovered any evidence related to the alleged offenses absent respondent’s illegally obtained statements. Officer De Noma’s notes included neither the name of an alleged victim nor an address at which the offenses allegedly occurred. Moreover, the information supplied by the restaurant kitchen manager three days after respondent’s arrest did not link respondent to any suspected crime. The record before us demonstrates that the only reason St. Paul police connected the alleged victim’s name to the offenses allegedly perpetrated by *311respondent on October 17 was their knowledge of respondent’s illegally obtained November 14 confession. In reaching this conclusion, I give great weight to the trial court’s finding that neither the alleged victim nor her parents had any intention of independently reporting the alleged October 17 incident to police and eventually did so only in response to police inquiries generated by respondent’s own inculpatory statements.

¶13Without question, serious consequences attach to the exclusion of live witness testimony, particularly that of an alleged victim. However, the majority is unwise to manufacture a rule permitting the introduction of that testimony irrespective of what tactics were employed to secure it. Such a rule virtually destroys any reason police may now have for respecting the right to counsel once invoked, and instead creates a substantial incentive for police to completely ignore constitutional limitations in eliciting self-incriminating statements. There is simply no reason to believe that police will see any need to respect a suspect’s invocation of the right to counsel when they know that the most they will ever lose access to is the confession itself.

¶14In the particular circumstances presented by the case before us, where police were entirely unaware of a victim, of witnesses, indeed of anything arguably constituting an offense involving respondent until respondent himself confessed in an illegally obtained statement, suppression of all evidence derived from that statement is appropriate.5

¶15Ill

¶16In Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the United States Supreme Court concluded that illegally obtained information is admissible where the state demonstrates “by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means … Id. at 444, 104 S.Ct. at 2509.6 In Nix, the state proved by a preponderance of the evidence that a body police discovered owing to an illegally obtained confession would inevitably have been discovered by search parties already at work and “approaching the actual location of the body.” Id. at 449, 104 S.Ct. at 2512.

¶17This court has itself applied the Nixinevitable discovery exception to permit introduction of illegally obtained evidence. In State v. Rodewald, 376 N.W.2d 416 (Minn.1985), this court held that blotter acid discovered by a police officer during a pre-detention search of the defendant’s wallet was admissible. Id. at 422. The court reasoned that irrespective of any illegality involved in the officer’s search, the acid would unquestionably have been discovered by jail personnel during a lawful inventory search mandated by established jail procedure. Id.

¶18The trial court made extensive findings with respect to the likelihood that the alleged St. Paul offenses would have been discovered absent respondent’s inculpatory statements. It found that the kitchen manager of the restaurant where SC, the alleged victim, was employed, informed St. Paul police only that respondent also worked at the restaurant for one week and was terminated because “he treated waitresses strange” and called SC and another restaurant worker, TH, at their homes. The court concluded a fair preponderance of the evidence did not demonstrate that without respondent’s inculpatory state*312ments the St. Paul Police Department would have mounted an investigation based on this information. The court noted that of the two women the kitchen manager referred to, SC and TH, the police chose only to interview SC. It concluded that because police did not initiate an investigation as to TH based solely on the kitchen manager’s information, they likely would not have initiated an investigation as to SC absent knowledge of respondent’s inculpa-tory statements. Finally, the court was persuaded that the state did not demonstrate that either SC or any member of her family — none of whom testified — would ever have come forward and given evidence about respondent.

¶19The court of appeals agreed “with the trial court’s conclusion that it is too speculative to assume the victim’s family would have reported the crime after earlier declining to formally do so.” State v. Doughty, 456 N.W.2d 445, 449 (Minn.App.1990). It also agreed with the trial court that the kitchen manager did not provide St. Paul police with a connection between respondent and a suspected crime. Like the trial court, the court of appeals noted that because police did not initiate an investigation with respect to TH, there was no reason to believe they would yet have interviewed SC solely on the basis of the information provided by the kitchen manager.

¶20The record before us supports the trial court’s determinations. The state did not offer testimony from Officer De Noma regarding what he likely would have done with his October 17 notes absent knowledge of respondent's inculpatory statements.7 Officer Pye, whom the trial court observed testify and whose credibility the trial court therefore had the opportunity to assess, was the only witness called to speculate about what Officer De Noma would have done with his notes and what action would have been taken because of those notes had the police not already known about respondent’s illegally obtained confession. Further, Officer De Noma’s notes were not connected with respondent until November 17, three days after St. Paul police first learned of the alleged St. Paul offenses from St. Louis Park police.

¶21The state also chose not to call SC or any member of her family to testify with respect to what they would have done had a St. Paul police officer not contacted them after he learned of respondent’s inculpato-ry statements. As both the trial court and the court of appeals concluded, because St. Paul police did not follow-up on the kitchen manager’s information regarding TH, there is no reason to believe they would have followed-up identical information regarding SC absent knowledge of respondent’s illegally obtained confession. The record we are asked to review simply does not demonstrate the trial court clearly erred in refusing to apply the inevitable discovery exception.

¶22IV

¶23Because none of the evidence the state seeks to offer at trial would have been discovered absent respondent’s inculpatory statements elicited in violation of his fifth amendment right to counsel, I would affirm the trial court’s suppression order. The record before this court does not demonstrate the trial court erred in its determination that even the live witness testimony derived solely from respondent’s illegally obtained statements should be suppressed. I reiterate that none of the alleged facts surrounding the alleged October 17 incident have been proved by the state. The majority’s conclusions with respect to those *313allegations should therefore be wholly disregarded on remand.

¶24(dissenting).

¶25I join the dissent of Justice Tomljanovich.