Burley Clifton Harryman v. W. J. Estelle, Jr., Director, Texas Department of Corrections

COLEMAN, Circuit Judge,

dissenting.

This is another in that great host of cases in which the federal courts have seen fit to exercise their jurisdiction to invalidate an outstanding, unreversed state court conviction on what is conceived to be federal grounds.

I am firmly convinced that federal intervention in this case is unwarranted and I respectfully dissent from the reasoning and the result reached by my esteemed Brethren in the majority opinion.

As that opinion indicates, the innkeeper notified the police that she had seen a high-powered rifle with a telescopic sight and a syringe in Harryman’s room. The police officers inspected the room and confiscated the rifle, syringe, and several spoons which had been burned on the bottom, a dead give-away as to what they had been used for.

The next day, when Harryman returned to the lodge, the police were again called and thereafter arrested him for suspected burglary. While searching him, the powdered substance, in its unusual container, was found concealed under the waistband of his trousers. Upon this discovery, the officer asked Harryman, “What is this”? Harryman responded, “Oh, you know what it is. It is heroin”.

The substance in the containers indeed was heroin — mixed with morphine and procaine. No doubt about it. The nature of it was confirmed by laboratory analysis. Moreover, the officers had it in their possession from the moment they found it and what Harryman said added not one jot or tittle to the unavoidable fact. This is reminiscent of the argument I once heard a distinguished lawyer make — “witnesses may lie, but physical facts cannot lie”.

I dissent on two grounds. First, the admission of Harryman’s incriminating statement, under the circumstances in which it was made, is not proscribed by Miranda v. Arizona, 384 U.S. 436 (1966).1 Second, even if a Miranda error were present, it was harmless beyond a reasonable doubt.

The Miranda doctrine does not erect an absolute barrier against all custodial questioning unpreceded by warnings of basic constitutional rights and a waiver of such rights. This Circuit, and others, have recognized a distinction between investigative and non-investigative questioning for purposes of determining whether the Miranda rule applies.2

*931For example, non-investigative questioning of detainees, such as biographical inquiries, has been found not to be subject to the Miranda rule. United States v. Prewitt, supra, 7 Cir., 1977, 553 F.2d at 1085-1086; see also Jackson v. United States, 5 Cir., 1965, 344 F.2d 700, 701; United States ex rel. Hines v. LaVallee, supra, 2 Cir., 1975, 521 F.2d at 1113; United States v. Grant, supra, 4 Cir., 1977, 549 F.2d at 946, 947; Farley v. United States, supra, 5 Cir., 1967, 381 F.2d at 358; Morrison v. United States, supra, 8 Cir., 1973, 491 F.2d at 346, 347.

Other inquiries, although not directed at such a seemingly innocuous subject as the detainees’ identification and background, also have been found to be without the reach of the Miranda rule where the manifest purpose of such inquiries was of a non-investigative nature. On this basis, a precautionary inquiry concerning weapons,3 as well as inquiries concerning the identification of personal effects found on the detainees,4 have been found not to be proscribed by Miranda.

In United States v. Castellana, 5 Cir., 1974, 500 F.2d 325, we found the question involved — “whether he had any weapons within reach” — to be non-investigative although this was not facially apparent. The inquiry was limited to the law enforcement official’s primary concern, safety. Moreover, we found that “[N]o rational investigatory purpose could have prompted such a question” when the agents were “already authorized to, intended to, and did search”, Id. at 326. Similarly, in Parson v. United States, 10 Cir., 1968, 387 F.2d 944, no Miranda violation was found when a sheriff accused the detainees of “giving him the ‘runaround’ about the key” found among the detainees’ personal effects, and was informed, in response, that the car was stolen, Id. at 946. The Parson Court observed that there was a legitimate non-investigative purpose for the inquiry and, further, that, among other factors, it was “relevant” that the detainees were being held for an offense other than that involving a stolen vehicle.

For similar reasons, I would hold that the inquiry in question here — “What is this”?— is not prohibited by either the spirit or the letter of Miranda. First, a non-investigatory purpose was present. During the course of conducting a safety search to uncover any hidden weapons, the police discovered a “condom tied in a knot and there were several others inside of that one, smaller ones inside of the larger one”. It is no assault on either common knowledge or human experience to suggest that men do not ordinarily go around carrying contraceptives stuffed with other contraceptives, mixed with power. It requires no great amount of imagination to understand the reflex reaction of a police officer when he unexpectedly encountered such an unusual package — what on earth is this mess? The officer conducting the search reacted in a spontaneous and natural manner. This is especially true when it is recalled that Harryman was not being detained for a drug related offense but for suspected burglary.

Second, “[N]o rational investigatory purpose could have prompted such a question” when the police officer had the object in his hands and there was absolutely nothing to indicate that he could have been kept from finding out for himself what the package actually contained.

*932Even if we should assume, however, that the trial court erred in admitting Harry-man’s statement, identifying the substance as heroin, I am altogether confident that the error was harmless beyond a reasonable doubt. In Chapman v. California, 386 U.S. 18, 24 (1967),5 the Court reaffirmed the harmless error test of whether there is no “reasonable possibility that the evidence complained of might have contributed to the conviction”. The cases are legion focusing on the presence of overwhelming evidence of guilt, absent the tainted evidence.6

The majority seeks to distinguish many of these “overwhelming evidence” cases on the ground that they involved a bench trial or that lawfully admitted confessions supplied the overwhelming evidence of guilt. With all due respect, the majority has not correctly applied the harmless error rule. For example, in both United States v. Hill, supra, 430 F.2d 129 and Null v. Wainwright, supra, 508 F.2d 340, cited in support of the majority position, we found overwhelming evidence of guilt based on non-confessional evidence, relying in part on the fact that a bench trial was involved. There was no intimation, however, that the result would have been different had the error been committed before a jury. On the contrary, in Null we examined the independent evidence of guilt at great length and, without reference to the fact that a bench trial was involved, concluded that “[I]n view of overwhelming evidence . . . court was amply justified in finding him guilty”, 508 F.2d at 344. Only then did we take note of the special significance that attaches to a bench trial:

Moreover, we note that the trial was held before the court sitting without a jury. . . . Appellate courts assume that trial judges rely upon properly admitted and relevant evidence.

It is clear from the context and the language used in the opinion that the presence of a bench trial was regarded as an additional, but not necessary, factor in the harmless error calculus.

Other than the coincidence that valid confessions were relied upon as establishing overwhelming evidence in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), there is no support for the majority’s characterization of those cases. Neither the Milton nor the Schneble Court suggested that a valid counterbalancing confession was necessary to a finding of overwhelming evidence.

Rather the majority here must assume that there is a necessary quality of reliability which inheres in a confession but not in other types of evidence. But, as the dissent in both Milton and Schneble quickly pointed out, lawful confessions also may be fraught with problems of unreliability.

Moreover, case law does not support the majority’s lawful confession requirement. *933The overwhelming evidence test has been applied even when a valid confession does not provide dispositive evidence of guilt. In Harrington v. California, supra, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the defendant’s confession placed him at the scene of the crime but did not otherwise implicate him as a participant in the attempted robbery and first degree murder involved there. Overwhelming evidence was found, based on a lawfully admitted statement made by one of the co-defendants, the testimony of some victims, and Harrington’s confession.

Although not dispositive of guilt, Harrington’s confession did counterbalance the unconstitutionally admitted confession. In United States v. Gattie, supra, 5 Cir., 1975, 511 F.2d 608, overwhelming evidence was found even though the lawfully admitted confession was neither dispositive of guilt nor counterbalanced the erroneously admitted confession. Gattie was convicted by a jury of conspiracy to import and possess marijuana, importing marijuana and possession with intent to distribute. It was argued that the trial court erred in denying Gattie’s mistrial motion after a government witness repeated Gattie’s admission that the contraband was imported.7 We found the error to be harmless because the evidence of guilt was “heavy indeed”:

The plane that he piloted was followed from sixty miles at sea to Boca Raton Airport and he was arrested at the scene with 400 pounds of what he admitted to be marijuana. Id. at 610.

The majority’s lawful confession requirement is also contrary to other precedent. For example, in United States v. LaVallee, supra, the defendant, suspected of rape, advised the police, after his arrest but prior to receiving any Miranda warnings, that “he had been married eleven years and had two children”. An identical statement had been made previously to the rape victim. Admission of Hines’ statement to the police was held to be harmless error because of overwhelming evidence of guilt. This independent evidence consisted of the victim’s identification testimony as well as her description of the rapist which led to Hines’ arrest, corroborating medical testimony, Hines’ apprehension in the vicinity of the attack and his use of a false alibi. There was no valid confession.

Finally, I find it significant that in numerous cases where this Circuit has found the admission of a voluntary confession to be reversible error, we have focused on the insufficiency of the independent evidence of guilt and not on the inherent necessity of a confession. See United States v. Geders, 5 Cir., 1978, 566 F.2d 1227, 1233 (independent evidence not “alone . . . sufficient to rebut” defense); Smith v. Estelle, 5 Cir., 1976, 527 F.2d 430, 433 (independent evidence “insufficient”), granting rehearing in part, 1975, 519 F.2d 1267, 1268, 1269; United States v. Blair, 5 Cir., 1972, 470 F.2d 331, 338, 339 (error provided “key link” in evidence), cert. denied, 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197 (1973). Indeed, in United States v. Hernandez, 5 Cir., 1978, 574 F.2d 1362, a decision found by the majority to be controlling in the case sub judice, we found no harmless error reasoning, inter alia, that “there was little, if any, direct evidence connecting Hernandez with the truck or the contents”, Id. at 1372.

In the present case, however, the defendant was found with the heroin concealed on his person. I can think of no evidence that would be more direct, compelling, and complete proof of guilt. The only theory of the defense concerned the chain of custody. The federal magistrate found this contention to be “completely unsupported by any factual allegation”. The district court judge similarly concluded that the chain of custody was established beyond a reasonable doubt. The majority does not question this finding.

What happens here is that the State of Texas, if the witnesses are still available, is going to have to go to the trouble and expense of trying Harryman the second time when it most likely needs that time to *934try more recent, possibly more serious, cases. Harryman will again be convicted because he cannot deny that he had the contraband concealed on his person. With deference, this is just not the kind of case that post conviction review was intended to remedy.

Again, I must respectfully dissent.

. 86 S.Ct. 1602, 16 L.Ed.2d 694.

. United States v. Prewitt, 7 Cir., 1977, 553 F.2d 1082, 1085, 1086, cert. denied, 434 U.S. *931840, 98 S.Ct. 135, 54 L.Ed.2d 104 (1977); United States v. Grant, 4 Cir., 1977, 549 F.2d 942, 946, 947, cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081 (1976); United States ex rel. Hines v. LaVallee, 2 Cir., 1975, 521 F.2d 1109, 1113, cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976); United States v. Castellana, 5 Cir., 1974, 500 F.2d 325, 326, 327; United States v. Menichino, 5 Cir., 1974, 497 F.2d 935, 940, 941; Morrison v. United States, 8 Cir., 1973, 491 F.2d 344, 346, 347; United States v. La Monica, 9 Cir., 1972, 472 F.2d 580, 581; Parson v. United States, 10 Cir., 1968, 387 F.2d 944, 946; Farley v. United States, 5 Cir., 1967, 381 F.2d 357, 358, cert. denied, 389 U.S. 942, 88 S.Ct. 303, 19 L.Ed.2d 295 (1967). Contra Proctor v. United States, 1969, 131 U.S.App. D.C. 241, 242, 404 F.2d 819, 820.

. United States v. Castellana, 5 Cir., 1974, 500 F.2d at 326, 327.

. United States v. La Monica, 9 Cir., 1972, 472 F.2d at 581; Parson v. United States, 10 Cir., 1968, 387 F.2d at 946.

. 87 S.ct. 824, 17 L.Ed.2d 705.

. See, e. g., Halloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Milton v. Wainwright, 407 U.S. 371, 373, 373, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Schneble v. Florida, 405 U.S. 427, 430, 431, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 253, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); United States v. Haynes, 5 Cir., 1978, 573 F.2d 236, 239, cert. denied, -----U.S.----,99 S.Ct. 154, 58 L.Ed.2d 153; United States v. Geders, 5 Cir., 1978, 566 F.2d 1227, 1233, cert. denied, - - U.S.---, 99 S.Ct. 2031, 60 L.Ed.2d 396; United States v. Bynum, 5 Cir., 1978, 566 F.2d 914, 926, cert. denied,--U.S. - - - , 99 S.Ct. 129, 130, 58 L.Ed.2d 138; Wright v. Estelle, 5 Cir., 1977, 549 F.2d 971, 974, aff’d rehearing, 1978, 572 F.2d 1071, cert. denied,-U.S.-, 99 S.Ct. 617, 58 L.Ed.2d 680; United States v. Ayo-Gonzalez, 5 Cir., 1976, 536 F.2d 652, 656, cert. denied, 429 U.S. 1072, 97 S.Ct. 808, 50 L.Ed.2d 789 (1977); Zilka v. Estelle, 5 Cir., 1976, 529 F.2d 388, 392, cert. denied, 429 U.S. 981, 97 S.Ct. 495, 50 L.Ed.2d 590; United States ex rel. Hines v. LaVallee, supra, 2 Cir., 1975, 521 F.2d 1109, 1113, cert. denied, 423 U.S. 1090, 96 S.Ct. 884, 47 L.Ed.2d 101 (1976); Smith v. Estelle, 5 Cir., 1975, 519 F.2d 1267, 1268, 1269, rehearing granted in part, 527 F.2d 430, 433; United States v. Gattie, 5 Cir., 1975, 511 F.2d 608, 610; Null v. Wainwright, 5 Cir., 1975, 508 F.2d 340, 344, cert. denied, 421 U.S. 970, 95 S.Ct. 1964, 44 L.Ed.2d 459 (1975); United States v. Blair, 5 Cir., 1972, 470 F.2d 331, 338, 339.

. Gattie also contended that it was error not to have held an evidentiary hearing on his charge that the government suppressed favorable evidence.