United States v. Pasquale G. Barone, A/K/A Patsy, A/K/A Anthony Capone

SELYA, Circuit Judge

(dissenting).

By stony adherence to a narrow reading of Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), this court today approves suppression of highly reliable statements, voluntarily made to law enforcement officers by a criminal defendant. I do not believe that Mosley requires such a result, particularly when read in the context of the Supreme Court’s more recent jurisprudence. Thus, I respectfully dissent from Part II of the court’s opinion.12

Prior to 1966, the litmus test for admissibility of incriminating statements devolved around whether the statements were made “voluntarily,” giving that term the texture and gloss required by the Due Process Clause. The world changed in the blink of an eye. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Court held that, because custodial interrogation was inherently coercive, incriminating statements made in the absence of certain clear warnings would be presumed to be involuntary. Id. at 467, 86 S.Ct. at 1624.

In Mosley, the Court went a step further, holding that, after assertion of the right to silence, statements made in response to custodial interrogation will be admissible only if the authorities have “scrupulously honored” the accused’s right to terminate questioning. Mosley, 423 U.S. at 103, 96 S.Ct. at 326. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court clarified a distinction between asserting the right to remain silent and asserting the right to counsel. The Court established a bright-line rule: when an accused, in a custodial setting, invokes the right to counsel, the police must immediately cease all interrogation and may not resume questioning without the presence of counsel. See id. at 484-85, 101 S.Ct. at 1884-85.

*1387Bright-line rule or not, Edwards has sometimes been treated grudgingly by the Court. See, e.g., Connecticut v. Barrett, 479 U.S. 523, 529-30, 107 S.Ct. 828, 832-33, 93 L.Ed.2d 920 (1987) (holding that admission of oral statements voluntarily made by accused after he had stated that he would not make a written statement without advice of counsel did not violate Edwards). More to the present point, in the eleven years which have passed since Edwards was decided, the Court has refused to interpret Mosley as establishing a comparable bright-line rule regarding the right to silence. See Minnick v. Mississippi, - U.S. -, -, 111 S.Ct. 486, 497, 112 L.Ed.2d 489 (1990) (Scalia, J., dissenting) (noting that a “suspect in custody who says categorically ‘I do not wish to discuss this matter’ can be asked to change his mind”). Indeed, in the seventeen years since Mosley was announced, the Court’s opinions have begun more and more to emphasize volun-tariness when assessing Miranda violations. See, e.g., Colorado v. Spring, 479 U.S. 564, 577, 107 S.Ct. 851, 859, 93 L.Ed.2d 954 (1987); Oregon v. Elstad, 470 U.S. 298, 309, 105 S.Ct. 1285, 1293, 84 L.Ed.2d 222 (1985) (“Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.”).

This backdrop is colored by the fact that the Court has lost few opportunities to remind us that the root purpose of Miranda (and of the procedural rules emanating from it) is neither to discourage voluntary confessions nor to preclude their use. See, e.g., McNeil v. Wisconsin, - U.S. -, -, 111 S.Ct. 2204, 2210, 115 L.Ed.2d 158 (1991) (“the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good”); Moran v. Burbine, 475 U.S. 412, 426, 106 S.Ct. 1135, 1143, 89 L.Ed.2d 410 (1986) (“Admissions of guilt are more than merely ‘desirable’; they are essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.”) (citation omitted). Ineluctably these principles inform the case at hand.

Here, Barone asserted his right to remain silent regarding the Limoli murder during three attempted interrogation sessions. On each occasion, questioning anent the murder stopped and was not resumed for several hours. Ultimately, he volunteered the inculpatory statements. The district court specifically found that those statements resulted not from police coercion, but from a knowing and voluntary waiver of the defendant’s right to remain silent.13 This determination of voluntariness must carry the day. In light of it, and because the district court found that the officers reminded Barone that he was not obligated to speak to them and confirmed that he had his rights in mind, I do not believe that Mosley requires the suppression of the statements at issue.

I do not plan to wax longiloquent. In due course, the Court will take Mosley’s measure. For now, I am content to say that, in my view, the district court’s findings are tantamount to a finding that the shortfall in the authorities’ Conduct did not impermissibly impinge upon either Bar-one’s free exercise of his will or his right to cut off questioning at the crucial moment. Thus, suppression of the incriminating statements was improper. Cf., e.g., Arizona v. Fulminante, - U.S. -, -, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991) (admission of confessions obtained in violation of Miranda principles is subject to harmless-error review); Elstad, 470 U.S. at 309, 105 S.Ct. at 1293 (“If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself.”).

While I understand the majority’s desire to resolve Mosley’s ambiguity to the defendant’s benefit, I prefer to resolve that ambiguity in line with the Constitution as I read it, the interests of an ordered society, *1388and the Court’s most recent expressions. Hence, I would reverse the suppression order.

. I fully concur with my brethren’s reasoning and result as expressed in Part III of the court’s opinion.

. The majority has eschewed direct disagreement with this finding, preferring instead not to “appraise the district court’s determination that Barone's statements were voluntary.” Ante at 1384 n. 7. I assume, for present purposes, that the finding was not clearly erroneous.