DocketNumber： 04-17237
Judges： Schroeder, Reinhardt, Thomas, Silverman, McKeown, Wardlaw, Fletcher, Gould, Paez, Tallman, Rawlinson, Clifton, Callahan, Bea, Ikuta
Filed Date： 2/15/2008
Status： Precedential
Modified Date： 10/19/2024
It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like “Law & Order” to movies such as “Guys and Dolls,” we are steeped in the culture that knows a person in custody has “the right to remain silent,” Miranda is practically a household word. And surely, when a criminal defendant says, “I plead the Fifth,” it doesn’t take a trained linguist, a Ph.D, or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that “in popular parlance and even in legal literature, the term ‘Fifth Amendment’ in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.” Quinn v. United States, 349 U.S. 155, 163, 75 S.Ct. 668, 99 L.Ed. 964 (1955); accord In re Johnny V., 85 Cal.App.3d 120, 149 Cal.Rptr. 180, 184, 188 (1978) (holding that the statement “I’ll take the fifth” was an assertion of the Fifth Amendment privilege). More recently, the Court highlighted that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
We granted rehearing en banc
Anderson twice attempted to stop police questioning, stating “I don’t even wanna talk about this no more,” and “Uh! I’m through with this.” After questioning continued, Anderson stated unequivocally, “I plead the Fifth.” Instead of honoring this unambiguous invocation of the Fifth Amendment, the officer queried, “Plead the Fifth. What’s that?” and then continued the questioning, ultimately obtaining a confession. It is rare for the courts to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent.
The state court held that Anderson’s statement, “I plead the Fifth,” was ambiguous and that the officer asked a legitimate clarifying question. Under even the narrowest construction of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (“AEDPA”), the state court erred in failing to recognize this constitutional violation. The continued questioning violated the Supreme Court’s bright-line rule established in Miranda, Once a person invokes the right to remain silent, all questioning must cease:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.
Miranda v. Arizona, 384 U.S. 436, 473-74, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); see also Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (explaining that once a defendant has invoked his right to remain silent, that right must be “scrupulously honored”) (quoting Miranda, 384 U.S. at 479, 86 S.Ct. 1602).
An examination of the interrogation transcript
Anderson and the victim, Robert Clark, were friends. On the morning of July 9, 1997, a mutual acquaintance, Patricia Kuykendall, discovered that her car had been stolen. Anderson and Kuykendall suspected that Clark was involved and later that morning confronted him at Kuyk-endall’s house. Kuykendall began yelling at Clark, but Anderson remained calm. When Clark denied that he stole the car, he appeared edgy and nervous. As Kuyk-endall left the room to call the police, Clark left the house. Anderson and Kuyk-endall’s roommate, Abe Santos, left ten minutes later, stating they were going to follow Clark.
Clark’s body was discovered by the side of a road later that afternoon. He had been shot in the head four times. Investigators found a methamphetamine pipe lying between Clark’s arm and body. A cigarette lighter was resting on Clark’s stomach under his right hand. Pieces of a partially-eaten hamburger and a fresh cigarette butt were also near the body, as well as spent .22 caliber shell casings.
The police asked Anderson to come in for an interview two days later, July 11. During the interview, Anderson explained that on the day of the murder he saw Clark at Kuykendall’s apartment in the morning, but that he and Santos left to buy some hamburgers, after which they went to Santos’s father’s house and to a car wash.
The police took Anderson into custody for a parole violation on July 12. Four officers interviewed Anderson for approximately three and a half hours. Despite clear and- repeated invocations of his right to remain silent, the officer continued to question Anderson about the murder:
Officer: You act like you’re cryin’ like a baby, an’ you can’t cry for someone that was a no good ... an’ you killed him for a good reason.
Anderson: No, way! No, way. I — You know what, I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more. That’s wrong. That’s wrong.
Officer: Right now, you show your remorse.
Immediately after this exchange, the officer continued to interrogate Anderson regarding his drug use on the day of the murder, including whether Anderson had used pipes. This questioning is significant because the murder victim was found with a pipe next to him. The entire conversation was about the murder. In response to this questioning, Anderson unambiguously indicated that he wanted to end the interrogation by stating that he was “through with this,” wanted to “be taken into custody” and “I plead the Fifth.” The relevant portion of the transcript is so extraordinary that it bears repeating.
Anderson: I have nothin’ to worry about, nothin’ to hide. That’s why I show no remorse. Nothin’ to worry about, nothin’ to hide. He was my friend, an’ there’s no way I would do it. No, way I would do it.
Officer: Were you high that day?
Anderson: No, sir. I — probably was later on. Yes.
Officer: Did you have any dope with you that ... that day?
Anderson: No, sir.
Officer: No, dope at all? What do you smoke with?
Anderson: I smoke with my ... my fingers.
Officer: When you smoke your dope what do you do with that? How do you smoke that?
*786 Anderson: You smoke it with pipes and stuff like that.
Officer: Okay. What kind of pipes?
Anderson: Lines.
Officer: What kind of pipes?
Anderson: N’ah ... I would — I—
Officer: Well, what kind of pipes?
Anderson: Uh! I’m through with this. I’m through. I wanna be taken into custody, with my parole ...
Officer: Well, you already are. I wanna know what kinda pipes you have?
Anderson: I plead the [F]ifth.
Officer: Plead the [Fjifth. What’s that?
Anderson: No, you guys are wrong. You guys are wrong. You guys have — I’ve tried to tell you everything I know. As far as I know, you guys are lying, uh, making things up, extenuating and that’s not right. It’s not right.
Officer: We’re not makin’ anything up.
Anderson: Sir, sure you are.
Officer: What are we makin’ up?
Anderson: You’re tellin’ me that I didn’t have tears in my eyes.
Officer: Yeah.
Anderson: You’re tellin’ me, okay, that, uh, uh, Abe said I kilt him. That’s a lie.
The questioning continued until Anderson asked for a lawyer: “I’d like to have an attorney present.” At that juncture, an officer turned off the tape recorder and, somewhat suspiciously, following this hiatus, the officers concluded that Anderson wanted to reinitiate the discussion. The further questioning, which took place over a three-hour period, led to a confession by Anderson.
Anderson was convicted of special circumstances murder. On appeal, as in the trial court, he challenged the admissibility of his confession, arguing that it was obtained in violation of Miranda and of his Fifth Amendment right to remain silent. The California Court of Appeal rejected Anderson’s argument. The court concluded that Anderson’s invocation of his right to remain silent was ambiguous and that the officer asked a legitimate clarifying question when he responded to Anderson’s statement, “I plead the [Fjifth,” with “Plead the [Fjifth. What’s that?” The state appellate court reasoned that Anderson could have been refusing to talk about his drug use, and did not intend to terminate the interview. The state court further held that Anderson waived any invocation of the right to silence or to counsel when he re-initiated the interrogation after the officers turned off the tape.
II. Standard Op Review
Under AEDPA, a writ of habeas corpus may not be granted unless the state court’s decision (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1), (2). Although this standard requires us to give considerable deference to the state courts, AEDPA deference is not a rubber stamp. See Miller-El v. Dretke, 545 U.S. 231, 240, 265, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (refusing to accept a state court’s “dismissive and strained interpretation” of the prisoner’s evidence on habeas review and, noting that “[djeference does not by definition preclude relief’). The state court decision here collides with AEDPA on all grounds. It reflects both an unreasonable application of Miranda, which is clearly established federal law,
III. In Contravention Of Miranda, The State Court Unreasonably Concluded That Anderson’s Invocation (“I Plead The Fifth”) Was Ambiguous
Following the issuance of Miranda in 1966 and the literally thousands of cases that repeat its rationale, we rarely have occasion to address a situation in which the defendant not only uses the facially unambiguous words “I plead the Fifth,” but surrounds that invocation with a clear desire not to talk any more. The state court accurately recognized that under Miranda, “if [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease,” 384 U.S. at 473-74, 86 S.Ct. 1602, but then went on to eviscerate that conclusion by stating that the comments were “ambiguous in context”:
In the present case, the defendant’s comments were ambiguous in context because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all. By asking defendant what he meant by pleading the fifth, the officer asked a legitimate clarifying question.
Using “context” to transform an unambiguous invocation into open-ended ambiguity defies both common sense and established Supreme Court law. It is not that context is unimportant, but it simply cannot be manufactured by straining to raise a question regarding the intended scope of a facially unambiguous invocation of the right to silence. As the Supreme Court has observed, in invoking a constitutional right, “a suspect need not ‘speak with the discrimination of an Oxford don.’ ” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)
This is not a case where the officers or the court were left scratching their heads as to what Anderson meant.
As we recently observed, “neither the Supreme Court nor this court has required that a suspect seeking to invoke his right to silence provide any statement more explicit or more technically-worded than T have nothing to say.’ ” Arnold v. Runnels, 421 F.3d 859, 865 (9th Cir.2005). We went on to underscore that Arnold’s statement easily met the Fifth Amendment standard: “Indeed, it is difficult to imagine how much more clearly a layperson like Arnold could have expressed his desire to remain silent.” Id. at 866.
Anderson did not equivocate in his invocation by using words such as “maybe” or “might” or “I think.” See id. at 865-66 (distinguishing cases in which the court concluded that a qualified invocation was ambiguous from cases in which the invoeation of the right to silence was specific and unambiguous). Nor was there anything ambiguous in Anderson declaring, “I plead the Fifth.” Anderson had already twice attempted to stop the police questioning using crystal-clear language: “I don’t want to talk about this no more” and “Uh! I’m through with this. I’m through. I wanna be taken into custody..:Saying that he wanted to be taken into custody was an indication that Anderson did not want to talk about the murder, his drug use, or anything else. Thus, the state court was unreasonable in concluding that the invocation was ambiguous in context because the context, in. fact, makes it clear that Anderson wanted to end the interrogation in all respects. Anderson had the right to end the interrogation at any point and the fact that Anderson had answered the officers’ questions for over two hours does not somehow undermine or cast doubt on an unambiguous invocation. Whether these were “statements of- frustration,” as the government posited at oral argument, misses the point. A suspect can both be frustrated with an interrogation and seek to terminate it. “Taking the Fifth” is as unequivocal as one can get in invoking the right to remain silent.
IV. The State Court’s Conclusion that the Officer Asked A Legitimate Clarifying Question Was An Unreasonable Determination of the Facts
Anderson’s unambiguous, unequivocal invocation should have brought an immediate end to questioning. Notably, the Supreme Court’s commitment to Miranda’s fundamental tenet — that police must “scrupulously honor[ ]” a suspect’s right to remain silent by immediately ceasing questioning when the suspect invokes this right, 384 U.S. at 479, 86 S.Ct. 1602 (emphasis added) — has never wavered. See Mosley, 423 U.S. at 103, 96 S.Ct. 321 (Miranda’s “critical safeguard” is “a person’s ‘right to cut off questioning’ ”); see also Arizona v. Roberson, 486 U.S. 675, 683, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988); Kolender v. Lawson, 461 U.S. 352, 368 n. 6, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (Brennan, J., concurring); cf. Dickerson, 530 U.S. at 440, 120 S.Ct. 2326 (reaffirming constitutional requirement that “the exercise of [Miranda ] rights must be fully honored”).
Instead of scrupulously honoring the request, the interrogating officer decided to “play dumb,” hoping to keep Anderson talking by inquiring, “Plead the Fifth. What’s that?” This effort to keep the conversation going was almost comical. At best, the officer was mocking and provoking Anderson. The officer knew what “I plead the Fifth” meant. It is thus baffling that the state court determined that “[b]y asking defendant what he meant by pleading the Fifth, the officers asked a legitimate clarifying question.” The need
This situation brings to mind the phrase attributed to a Canadian judge — “won’t take no for an answer” — and later popularized in country music as “What part of ‘no’ don’t you understand?”
In the right-to-counsel context, the Supreme Court has countenanced clarifying questions only to ascertain whether a suspect’s ambiguous or equivocal statement is actually an invocation of his Fifth Amendment right. See Davis, 512 U.S. at 461, 114 S.Ct. 2350; Miranda, 384 U.S. at 445, 86 S.Ct. 1602 (focusing only on the threshold question of whether the accused “indicate[d] in any manner that he d[id] not wish to be interrogated” when deciding whether police had honored the accused’s Fifth Amendment rights); cf. Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (holding that “[t]his case concerns the threshold inquiry: whether Smith invoked his right to counsel in the first instance”). Ignoring this principle, the state court found that the comments were ambiguous “because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all.”
The state court’s rationale collapses beneath its own weight, because the officer’s comment showed that the interrogating officers did not believe that Anderson’s statement was ambiguous. The officer did not ask Anderson what subject he did not want to discuss; nor did any of his followup questioning address this topic. Similarly, the officer did not ask him if he wished to remain silent or whether he simply did not want to talk about the drug issue. The officer did not even ask Anderson what he meant. No reasonable officer could legitimately be in doubt about the meaning of “I plead the Fifth.” The state court’s characterization is a fanciful re-imagining of the colloquy between Anderson and the officer, and under AEDPA, an unreasonable determination of the facts.
The state court’s conclusion that “[i]t was the defendant, not the interrogators, who continued the discussion,” ignores the bedrock principle that the interrogators should have stopped all questioning.
Finally, it makes no sense to split hairs and say that maybe, just maybe, Anderson wanted to talk about the murder and not about his drug use because, in fact, the drug use was inextricably intertwined with the murder. The victim’s body was found next to a methamphetamine pipe. Anderson’s drug use that day could well tie him to the murder. He was taken in for questioning about the murder, not on a potential drug charge.
It is precisely this kind of conjecture and hair-splitting that the Supreme Court wanted to avoid when it fashioned the bright-line rule in Miranda. Cf. Davis, 512 U.S. at 461, 114 S.Ct. 2350 (noting that, where the suspect asks for counsel, the benefit of the bright-line rule is the “clarity and ease of application” that “can be applied by officers in the real world without unduly hampering the gathering of information” by forcing them “to make difficult judgment calls” with a “threat of suppression if they guess wrong”). No guess work was required here.
Under the state court’s application of Miranda and its progeny, every time a suspect unequivocally invokes the right to remain silent, the police can ask follow-up questions to clarify whether he really, really wants to invoke the right and to parse the subject matter — “what specifically do you not want to talk about?” Such a practice is tantamount to endless re-interrogation.
The Sixth Circuit’s decision in McGraw v. Holland, 257 F.3d 513 (6th Cir.2001), where the defendant stated “I don’t want to talk about it,” illustrates the error of the state court’s approach:
In the criminal proceeding against Tina McGraw, the state trial court declined to hold the confession inadmissible under Miranda since Tina ‘never demanded or requested to terminate the interview.’ Although Tina said that she did not want to talk about the rape itself, in other words, her confession that she assisted in the rape was held to be admissible under Miranda because she never said that she did not want to talk about subjects other than the rape. This, in our view, was an unreasonable application of Miranda and its progeny.
Id. at 518.
Here, the state court’s loose paraphrasing of the officer’s question — “Plead the [Fjifth. What’s that?” — as “asking defendant what he meant by pleading the Fifth” is unconvincing and an unreasonable determination of the facts. As the transcript reveals, the officer did not even pretend not to understand what Anderson meant. Instead, incredibly, he feigned ignorance of the Fifth Amendment.
Where the initial request to stop the questioning is clear, “the police may not create ambiguity in a defendant’s desire by continuing to question him or her about it.” Barrett, 479 U.S. at 535 n. 5, 107 S.Ct. 828 (Brennan, J., concurring). By parsing Anderson’s invocation into specific subjects, “the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind.” Mosley, 423 U.S. at 105-06, 96 S.Ct. 321. The net result is that such follow-up questions allowed the officer to avoid honoring the Fifth Amendment and, as in a right to counsel situation, enabled “the authorities through ‘badger[ing]’ or ‘overreaching’ — explicit or subtle, deliberate or unintentional — [to] wear down the accused and persuade him to incriminate himself.” Smith, 469 U.S. at 98, 105 S.Ct. 490.
V. The State Court’s Decision Was Contrary to Supreme Court Precedent by Finding a Waiver Based on Anderson’s Responses to Re-Interrogation
The state appellate court attempted to bolster its conclusion about Anderson’s statements by claiming that he waived his right to remain silent in continuing to answer police questions after he stated, “I plead the Fifth”:
[WJhile words of invocation were spoken by the defendant, the court concludes that, in any case, he effectively waived the right to remain silent by what followed .... By continuing to talk to the police officers, defendant demonstrated a willingness to continue to discuss the case
Put another way, the state court endorses the principle that once the officers ignored Anderson’s unequivocal invocation of the Fifth Amendment, their questioning kept him talking and resulted in a waiver of his right to remain silent. This analysis directly contravenes Supreme Court precedent: “[U]nder the clear logical force of settled precedent, an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.” Smith, 469 U.S. at 100, 105 S.Ct. 490 (emphasis in original).
Smith mandates that all questioning must immediately cease once the right to remain silent is invoked, and that any subsequent statements by the defendant in response to continued interrogation cannot be used to find a waiver or cast ambiguity on the earlier invocation. The Supreme Court’s somewhat lengthy recitation of this principle is particularly instructive in this case:
Where nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all questioning must cease. In these circumstances, an accused’s subsequent statements are relevant only to the question whether the accused waived the right he had invoked. Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together....
With respect to the waiver inquiry, we accordingly have emphasized that a valid waiver “cannot be established by showing only that [the accused] responded to further police-initiated custodial interrogation.” Using an accused’s subsequent responses to cast doubt on the adequacy of the initial request itself is even more intolerable. “No authority, and no logic, permits the interrogator to proceed ... on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he wished to speak through an attorney or not at all.”
Id. at 98-99, 105 S.Ct. 490 (internal citations omitted) (emphasis, alteration and second ellipsis in original).
We are not faced with a situation where there was a break in questioning after the Miranda invocation. Instead, police simply continued the conversation up to the
We cannot simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson’s purported re-initiation of the interrogation. Doing so would eviscerate the mandate to “scrupulously honor[ ]” the invocation of Miranda rights. We understand the phrase “scrupulously honor” to have practical meaning. For the “right to remain silent” to have currency, there must be some silence. The interrogation must stop for some period of time. See Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602; Mosley, 423 U.S. at 103-04, 96 S.Ct. 321. Although the Supreme Court has yet to tell us how long the break in questioning must last, in this case there was no cessation at all. Because the interrogation was continuous to that point, we need not determine whether Anderson waived his right to counsel after viewing a videotape of his alleged accomplice nor do we need to address his coercion claim.
The prejudice from Anderson’s confession cannot be soft pedaled, and the error was not harmless. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). The confession was central to the conviction. See Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (“A confession is like no other evidence. Indeed, the defendant’s own confession is probably the most ... damaging evidence that can be admitted against him.” (internal quotation marks omitted)). Although deference must be given to state court determinations under AEDPA, we would be abdicating our responsibility to abide by Supreme Court precedent and to police the Constitution’s boundaries were we to permit such an egregious violation of Miranda to go unchecked.
The judgment of the district court is reversed and the case is remanded with instructions to grant the writ.
REVERSED AND REMANDED.
. Anderson v. Terhune, 467 F.3d 1208 (9th Cir.2006), reh’g en banc granted, 486 F.3d 1155 (9th Cir.2007).
. Anderson filed a motion requesting that the en banc panel take judicial notice of the entire transcript of the interrogation. We asked the parties to clarify whether either the complete transcript or the audio tape of the interrogation was part of the record before the state appellate court. The answer is unclear, although it is undisputed that both were available to the court. Thus, we consider both to be part of the record in this appeal. Nonetheless, whether one considers the transcript or the audio tape, the result is the same.
. We acknowledge that Davis is an invocation of counsel case under Miranda, not a Fifth Amendment right to silence case. We rely on Miranda and Mosley, not Davis, as "clearly established” law. See Evans v. Demosthenes, 98 F.3d 1174, 1176 (9th Cir.1996) (declining to address whether Davis applies to right to silence cases). Nonetheless, the general principles from cases involving the clarity of invocation of rights during custodial interrogation are instructive as to common sense interpretation of language.
. The trial court stated, "while the defendant articulated words that could, in the isolation [sic], be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the interview.” (emphasis added). Similarly, the state court of appeal stated, “In the present case, the defendant’s comments were ambiguous in context because they could have been interpreted as not wanting officers to pursue the particulars of his drug use as opposed to not wanting to continue the questioning at all." (emphasis added). Obviously, the court recognized that "I plead the Fifth” was an invocation of the right to silence; it detected ambiguity only as to the scope of the invocation.
. See The Phrase Finder, What part of no don’t you understand?, http:// www.phrases. org.uk/meanings/what-part-of-no.html (last visited Nov. 30, 2007); Lorrie Morgan, What Part of No (words and music by Wayne Perry and Gerald Smith), on Watch Me (BNA Records 1992).
. As the Third Circuit aptly stated, "[u]nder Miranda, the onus was not on [the suspect] to be persistent in her demand to remain silent. Rather, the responsibility fell to the law enforcement officers to scrupulously respect her demand." United States v. Lafferty, 503 F.3d 293, 304 (3d Cir.2007).