Goldstein v. State

Gunderson, J.,

concurring:

In light of prior United States Supreme Court decisions, the investigating officer’s actions obviously pose grave constitutional problems. However, for reasons other than those stated by Chief Justice Thompson, I believe such decisions do not absolutely mandate a holding that appellant’s confession is inadmissible. Hence, as suppression of appellant’s confession might also require the district court to suppress evidence of the victim’s death, as “fruit of the poisoned tree,” I believe proper judicial restraint requires us to affirm the district court.

Still, I concur separately, because I consider it dubious constitutional doctrine to say that a policeman may interrogate an accused in his counsel’s absence, although he well knows the accused has requested and obtained counsel, provided he first recites a “Miranda warning.” In the Miranda case itself, the U.S. Supreme Court made it clear that as soon as an accused indicates by any means his election to remain silent, or invokes his right to counsel, the police must respect his choice. 384 U.S. at 473-474.

I believe we can affirm the lower court without seeming to approve general use of a doubtful police practice, which may hereafter jeopardize the prosecution of offenses equally as serious as the one here concerned. In the instant case, when appellant was interrogated, investigation had not proceeded beyond “a general inquiry into an unsolved crime,” because it was not then even known that anyone was dead. The investigation was, rather, an inquiry to determine if indeed there was a crime to be solved, and therefore not clearly within the purview of prior federal cases.