People v. Saiz

¶1dissenting:

¶2I respectfully dissent.

¶3In Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the United States Supreme Court established a “causal connection” test for determining whether a criminal suspect’s incriminating statements are “tainted” by prior official illegality. Accord Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).1 The court held that “Miranda warnings, alone and per se, cannot always make the act [of confessing] sufficiently a product of free will to break .. . the causal connection between the illegality and the confession.” Brown v. Illinois, supra, 422 U.S. at 603, 95 S.Ct. at 2261. The essential question to be answered is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). See People v. Hillyard, 197 Colo. 83, 589 P.2d 939 (1979); People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972). If a criminal suspect’s statement is sufficiently the product of his free will, the causal connection between police illegality and this evidence is broken, and no taint attaches to it. Brown v. Illinois, supra-, Wong Sun v. United States, supra.The presence of official illegality “does not per se require suppression of evidence seized thereafter.” People v. Hillyard, supra, at 85, 589 P.2d at 940; People v. Bates, 190 Colo. 291, 546 P.2d 491 (1976).

¶4I wish to emphasize the limited nature of the evidence at issue in this case: the defendant gave a superficially exculpatory statement, after being given Miranda warnings, in the presence of his parents, and after waiving the presence of counsel, that he saw an “alleged perpetrator running from the vicinity of the crime, slipping and losing the [victim’s] wallet, which the defendant then rifled and discarded.” For police investigatory purposes, the defendant had admitted personal knowledge about incriminating evidence and thus, from his own lips, connected himself to the crime. But this statement followed the defendant’s prior admission of personal guilt in the crime, made during illegal interrogation, and must be evaluated in the whole constellation of facts surrounding its utterance, “taking into consideration such factors as the voluntariness of the defendant’s communications, the degree of police misconduct and any relevant intervening circumstances.” People v. Hillyard, supra, at 89, 589 P.2d at 941; Brown v. Illinois, supra.

¶5The majority has stressed the temporal proximity of the illegally obtained admis*22sion of guilt and the defendant’s (perhaps) misguided but self-serving statement that he saw someone else fleeing the scene of the crime. The court holds that once the defendant “let the cat out of the bag” and admitted personal guilt, he lacked the time to reflect upon his right to be silent, despite Miranda warnings and the presence of his parents, in the face of further questioning which would have been proper if untainted.

¶6In my judgment, the facts weigh differently. The trial court found that, prior to the officers’ questioning of the defendant outside the presence of a parent; he had already admitted to his mother that he had some information about the victim’s wallet and the circumstances of his death. She had related this information to the police on August 20, 1974. The defendant told his mother an exculpatory story to explain what had happened-that he found the wallet, having overheard a conversation .implicating others. This version of events then changed when the police illegally questioned him on the morning of August 21; but he did not repudiate its basic feature-knowledge about the wallet. Later the same day, in the noon-to-one interrogation, after he was given Miranda warnings in addition to those he was given on August 20, in the presence of his parents, and after he and his father waived any right to have an attorney present during questioning, he again offered this second version of events to the police during the initial part of the interview. Any inconsistency between this statement and the truth surrounding the crime with which the defendant is charged was not the police officers’ invention. Their illegal exploration of these inconsistencies, after the defendant’s attempt to exercise his right to be silent, has been excluded from evidence. People v. Saiz, 42 Colo.App. 469, 600 P.2d 97 (1979). But this court has no reasonable basis to find that the statement here at issue is not precisely what the defendant wanted the police to hear and wanted the police to believe. On the contrary, this statement was consistent with what the defendant already had told his mother under circumstances that were not tainted with official illegality. But for the temporal proximity of illegal questioning and seizure of evidence under section 19-2-102(3)(c)(I), C.R.S.1973, all evidence points to the voluntariness of the defendant’s statement. Even this temporal relationship is an ambiguous factor, given that the defendant had already related a similar statement to his mother which she repeated to the police, and given also that he may have had personal reasons to seek to mislead investigators. See Dunaway v. New York, supra(Stevens, J., concurring).

¶7The Supreme Court has held that Miranda warnings are an “important factor” to consider in determining whether the causal link between official illegality and incriminating statements made during police custody has been broken. Brown v. Illinois, supra, 422 U.S. at 603, 95 S.Ct. at 2261. See People v. Hillyard, supra.These warnings have been given little importance by the majority, if any.

¶8It is at least arguable whether the whole pattern of police misconduct displayed in the investigation of this ease was more negligent than purposeful. Absent contrary findings, in my opinion there can be no doubt that the police were simply doing their duty when they again informed the defendant of his Miranda rights, after obtaining the presence of his parents before talking any more to him.

¶9It is this final factor, the presence of the defendant’s parents, which serves as the kind of intervening circumstance that, on its own, breaks the chain of events leading from the defendant’s illegal interrogation to the statement which is at issue. Cf. People v. Hillyard (Erickson, J., dissenting). The clear statutory purpose behind section 19-2-102(3)(c)(I), C.R.S.1973, was to afford special protection to a juvenile who is in police custody because of alleged criminal acts. People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977). The defendant was, during the period in question, afforded the opportunity to have parental guidance during interrogation, and his father as well as he himself waived the presence of counsel after his Miranda advisement. See People v. Hayhurst, 194 Colo. 292, 571 P.2d 721 (1977). *23The fact that his parents may have been emotionally upset by their son’s possible involvement in a crime or that their admonitions to tell the truth led to his making subsequent incriminating statements which are not at issue here, does not mean that their interests were adverse to him or that they somehow failed to be “on the side” of their child. See People v. Hayhurst, supra; cf. People v. Maes, supra.The defendant’s parents were in fact “the neutral counselors contemplated by the statute.” People v. McAnally, 192 Colo. 12, 15, 554 P.2d 1100, 1103 (1976).

¶10When this last factor, his parents’ presence, is considered in light of the other circumstances surrounding the statement the defendant gave during the first part of his noon-to-one interview, the effect of the prior official illegality is so distinguishable as to be purged of the primary taint. The statement itself was not the result of official exploitation of the illegality. It was voluntarily given. I would not exclude it here.