UNITED STATES of America, Plaintiff-Appellee, v. Reginald James CAUSEY, Defendant-Appellant, 834 F.2d 1179

GEE, Circuit Judge: Today the issue before our court en banc is whether a voluntary confession to bank robbery, given after reiterated Miranda warnings, should be excluded from evidence because the police had arrested the defendant under an outstanding arrest warrant for a different crime, intending to question him solely about the robbery to which he confessed.

Our panel held that although the officers arrested Causey on an admittedly valid warrant, and although they did so only after specifically verifying the warrant’s validity with the judge who had issued it, their true and sole intent in making the arrest — to interrogate him about a different and more serious crime— rendered his confession to that crime “as tainted as if it had been obtained by coercion, brutality, or any other unconstitutional lever used to pry a confession from him.” U.S. v. Causey, 818 F.2d 354, 362-63 (5th Cir.1987).

Thus to the Constitution’s requirement that to be admitted in evidence a confession must be knowing and voluntary, and to the Supreme Court’s that, if custodial, it be given only after the Miranda formula of rights and warnings had been recited, our panel added an additional requirement that the police who took the confessor lawfully into custody must not have done so with an improper motive —whether their actions in the premises would have been any different in the absence of such a motive or not.

The panel held squarely that conduct otherwise lawful in every respect on the part of police is rendered unconstitutional by their irregular subjective intent alone. Sensing a possible conflict between this holding and sound constitutional policy, as well as possible inconsistency with the decision of the Supreme Court in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), we took the case en banc; and we now reverse the action of the panel and affirm that of the trial court.

The facts are fully and accurately set out in the panel opinion, and we reiterate them only so far as is necessary to an understanding of our holding. Facts An anonymous tipster identified appellant Causey as the robber of a Baton Rouge bank, but the city police believed that they lacked probable cause to arrest and interrogate him about that crime. Casting about for means to apprehend and question him, they discovered an outstanding warrant for Causey’s arrest, issued some years earlier when he had failed to appear in court to answer a petty theft charge.

After verifying the warrant’s continued validity with the issuing judge, the city officers arrested Causey, gave him Miranda warnings, interrogated him about the bank robbery, and called in the FBI. Some time and several Miranda warnings later, Causey made a voluntary confession of robbing the bank.

At a hearing on Causey’s motion to suppress the confession, one of the city officers testified that their only reason for arresting Causey on the warrant was “to take him downtown and continue [the] investigation of the bank robbery_” Convicted by a jury, Causey appealed and our panel reversed for the reason given earlier: that the exclusive motive to question him about the robbery with which the misdemeanor warrant was executed rendered the arrest “pretextual” and “tainted” his confession despite the Miranda warnings that had preceded it and despite its voluntary character.

On both reason and authority, we disagree. Reason Any consideration of the facts in this appeal must commence with a recognition that the police who arrested Causey were empowered to do so by a valid warrant and that they took no action that they were not legally authorized to take. Nor is it suggested that anything improper occurs when police officers question a suspect who is under arrest for one crime about others of which he may be guilty or have knowledge.

Thus, on the reasoning of the panel opinion, had the arresting police done exactly the same things with Causey from start to finish as they did in fact, but had they in addition entertained a subjective intention at the time of his arrest to question him about the lesser offense for which the arrest warrant issued as well as about the bank robbery, his confession to the robbery would have been properly admitted at his trial.

But since one of the arresting officers testified that their only purpose in arresting Causey was to investigate the robbery, the panel declares that his confession is just as tainted as if it had been coerced by torture. For several reasons, we decline to countenance such a rule. In the first place, the panel’s rule turns on an irrelevant intent: that of the police.

It is the prosecutor’s intent that determines whether one who has been arrested on a warrant is prosecuted for that offense, not that of the police; and the panel’s holding is made ironic by the fact Cau-sey was prosecuted, convicted, and punished for the non-appearance offense on which the warrant was issued and for which he was “pretextually” arrested. It is difficult to see why a lack of police interest in seeing him prosecuted on the non-appearance warrant — an indifference that had neither force, basis nor consequence — should be held to be of such an overmastering effect.

Especially is this so when the actions taken by the police were entirely consistent with the results in both prosecutions: Causey was convicted of both non-appearance (in state court) and of bank robbery (in federal court) and punished for each offense. The only supposed defect in the entire process was a defective intent on the part of the police regarding a decision that was not theirs to make, a lack of interest by them in the prosecution of Causey on the offense for which the warrant issued — yet a lack that was, as things fell out, irrelevant and devoid of consequence.

In the second, it is hard to see what police misconduct it is that is sought to be deterred by such a ruling: Is it acting to execute a valid warrant? to investigate a bank robbery by all means at hand not unlawful? or perhaps to question a suspect without coercion or force after giving proper Miranda warnings?

In fact, the only conduct likely to be deterred by such a rule as that confected by the panel would be a prosecutor’s act of leniency in omitting to prosecute the less serious offense on which the warrant had issued, a matter of small consequence to the police or prosecutor and of further detriment to the arrestee. And finally, one may well question the motivational requirement which the panel undertakes to add to the qualifications laid down by the Supreme Court in Miranda for admissibility of a confession: voluntariness and administration of the warnings required by that decision.

To inject a new constitutional issue of subjective police intent into every case in which a suspect is arrested for one offense and later confesses to another (or others) seems to us unwarranted and to rest on no apparent constitutional basis or foundation. A consideration of that supposed basis and of the cases discussed by the panel opinion appears in the following section.

Authority The panel opinion maintains, in reliance on what it describes as a “continuing line of Fifth Circuit authority,” that unless an arrest is made with the appropriate subjective intent, it is invalid and whatever results from it is “tainted.” The line which it offers, however, consists of three cases, the most recent of which is over nine years old and the earliest of which was handed down in 1968.

Since the most recent of these was handed down in 1978, however, the Supreme Court — in three cases of its own — has made plain that it is irrelevant what subjective intent moves an officer in taking such an action as this; what signifies is the officer’s actions, objectively viewed in light of the circumstances confronting him. In the face of these clear pronouncements, we are not authorized to persist in our former rule, if such it was, to the contrary. The first of the Court’s relevant triad is Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).

There a central complaint on appeal by convicted narcotics dealers was that police had deliberately disregarded the minimization requirements of wiretap law, intercepting virtually all calls on the tapped line when only 40 percent of them were drug-related.

The district court ordered suppression of the intercepted calls and all derivative evidence because it was offended by the policemen’s state of mind, relying largely on the fact that they knew of the minimization requirement but made no attempt to comply with it, an attitude which the court stigmatized as “ ‘unreasonable ... even if every intercepted call were narcotic related.’ ” 436 U.S. at 134, 98 S.Ct. at 1721 (quoting the district court opinion; emphasis added).

A more categorical statement can scarcely be imagined of resolution on the part of the court to punish the public for naughty intent on the part of the police — whether or not that mere intent produced any discernible consequence — by freeing the criminal. In the course of upholding a reversal of the district court, the Supreme Court emphatically rejected, albeit in dicta as regards the Fourth Amendment, such a subjective view.

Instead, in passing upon such matters, it espoused an objective assessment of the officer’s actions for legality and a rejection of attaching consequences to his mere subjective states of mind: “[Ajlmost without exception in evaluating alleged violations of the Fourth Amendment the Court has first undertaken an objective assessment of an officer’s actions in light of the facts and circumstances then known to him. The language of the Amendment itself proscribes only “unreasonable” searches and seizures. In Terry v.

Ohio, 392 U.S. 1, 21-22, 20 L.Ed.2d 889, 88 S.Ct. 1868 [1879-80], 44 Ohio Ops.2d 383 (1968), the Court emphasized the objective aspect of the term “reasonable.” We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. In United States v. Robinson, 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467, 66 Ohio Ops.2d 202 (1973), a suspect was searched incident to a lawful arrest.

He challenged the search on the ground that the motivation for the search did not coincide with the legal justification for the search-incident-to-arrest exception. We rejected this argument: “Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.” Id., at 236, 38 L.Ed.2d 427, 94 S.Ct. 467 [at 477], 66 Ohio Ops.2d 202.

The Court of Appeals which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved. 436 U.S. at 137-38, 98 S.Ct. at 1723 (emphasis added; footnote omitted). Next, in United States v.

Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), the Court reversed our panel and upheld drug convictions resulting from the boarding of a 40-foot sailboat by customs officers to inspect ship’s documents, as authorized by 19 U.S.C. § 1581(a), against a contention that in fact the customs officers, accompanied by a local policeman, were following an informant’s tip that drugs were aboard and hence could not rely on the statute because their hearts were not pure, being defiled by an intent to apprehend drug smugglers.

The Court dismissed the claim in a footnote, reciting that “[t]his line of reasoning was rejected in a similar situation in Scott ..., and we again reject it.” 462 U.S. at 584 n. 3, 103 S.Ct. at 2577 n. 3. Finally, in the recent decision of Maryland v.

Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985), where officers purchased allegedly obscene materials from so-called “adult” bookstores with marked money, the contention was made that “[w]hen the officer subjectively intends to retrieve the money while retaining the magazines, ... the purchase is tantamount to a warrantless seizure.” 472 U.S. at 470, 105 S.Ct. at 2783. (emphasis added). Again, the argument received short shrift: This argument cannot withstand scrutiny.

Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” Scott v. United States, 436 U.S. 128, 136, 56 L.Ed.2d 168, 98 S.Ct. 1717 [1723] (1978), and not on the officer’s actual state of mind at the time the challenged action was taken. Id., at 138 and 139, n. 13, 56 L.Ed.2d 168, 98 S.Ct. 1717 [at 1723 and 1724, n. 13]. Objectively viewed, the transaction was a sale in the ordinary course of business.

The sale is not retrospectively transformed into a warrantless seizure oy virtue of the officer’s subjective intent to retrieve the purchase money to use as evidence. 472 U.S. at 470-71, 105 S.Ct. at 2783. Given these Supreme Court decisions in cases indistinguishable in principle from today’s case, our circuit simply cannot maintain, even were it so inclined, a rule so directly contrary to the Supreme Court’s.

Again and again, in precisely the present context, the Court has told us that where police officers are objectively doing what they are legally authorized to do — as in arresting Causey pursuant to the valid warrant outstanding against him and interrogating him without coercion after reading him repeated Miranda warnings — the results of their investigations are not to be called in question on the basis of any subjective intent with which they acted.

Conclusion Our panel's decision to exhume the subjective-intent exclusionary rule of a decade ago — one whose very existence is doubtful and one which, assuming that it did once exist in our circuit, has been bypassed both by the Supreme Court and by our own more recent authorities founded on Supreme Court decisions handed down since then — is untimely. Although the decisions of the Supreme Court are not literally controlling, we think their direction a wise one; and we follow where they lead.

In the matter of religious conviction, Elizabeth the Great is said to have remarked that she would make no windows into the minds of men who served her loyally. The relevant principle of the Supreme Court is likewise: so long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry. Insofar as such cases as Amador-Gonzalez, Cruz and Tharpe, cited in the panel’s opinion, may have sought to lay down a contrary rule for our Circuit, they are overruled.

The correct rule is that, while a showing of objectively reasonable good faith on the part of police officers will ordinarily redeem honest errors and prevent the application of the exclusionary rule, in a case where the officers have taken no action except what the law objectively allows their subjective motives in doing so are not even relevant to the suppression inquiry. And the reason lies in the purpose of that rule: to deter unlawful actions by police. Where nothing has been done that is objectively unlawful, the exclusionary rule has no application and the intent with which they acted is of no consequence.

Causey’s complaint that his conviction should be reversed because the subjective intent of the police in arresting him was improper is therefore rejected. Because, however, Causey presented claims for reversal of his conviction that the panel did not address by reason of its disposition of the claim which we decide today, we REMAND to the panel for consideration of those claims. .United States Constitution, Amendment V. . Subjective intent alone "does not make otherwise lawful conduct illegal or unconstitutional." 436 U.S. at 136, 98 S.Ct. at 1723. .

We assume that their belief was correct, for the United States does not contend otherwise. . Such a taboo should have strong reasons justifying it, given the common and general knowledge that a high percentage of the crime in our society is committed by a relatively small number of multiple offenders. . Or, a cynic might suggest, the making by police of another such admission of "pretextual” motive as occurred in this case. . This "continuing line of Fifth Circuit authority,” 818 F.2d at 361, is drawn with vanishing ink; the closer one looks at the cases, the less meets the eye. The first, Amador-Gonzalez v.

United States, 391 F.2d 308 (5th Cir.1968), did not boldly or generally hold "pretextual arrests unconstitutional.” 818 F.2d at 361. Two of the three members of the Amador-Gonzalez panel concurred only in the result that the search in that case was unreasonable. 391 F.2d at 315. As Judge Wisdom noted, "they [Judges Coleman and Godbold] concur in the result ... [but] would refrain from passing upon the lawful scope of a search incident to a valid traffic arrest (emphasis added).” Id.

In defining the boundaries of his holding, Judge Wisdom continues, "The pretextual motivation did not vitiate the validity of the arrest.... Proof that a traffic arrest was only a pretext to search for evidence of another offense is significant legally only because it bears on the reasonableness of the search ... the emphasis is on the objective relationship between the nature of the offense and the nature (circumstances) of the search, rather than on the motivational cause of the arrest (emphasis added).” Id.

With respect to the situation before us, the "nature" of Causey’s confession is reasonable; he was given Miranda warnings several times before he confessed. Under the narrow terms defined by Amador-Gonzalez, Causey's confession is hardly foreclosed. When one moves to United States v. Tharpe, 536 F,2d 1098 (5th Cir.1976) (en banc), the second in the group, the force of Amador-Gonzalez is reduced to support in a string-citation. Id. at 1101. In fact, the holding in Tharpe actually supports a broad use of an objective standard in analyzing police intent with respect to conducting a search.

And the third case, United States v. Cruz, 581 F.2d 535 (5th Cir.1978) (en banc) held inadmissible the testimony of illegal aliens who occupied an automobile that the court believed to have been stopped without either a warrant or probable cause in a manner objectively illegal: “Deputy Muldraw was hunting for illegal aliens and stopped Rhodes's automobile in order to inspect its occupants ... the defendant was the victim of the illegal stop...." Id. at 542 (emphasis added).

Although Amador-Gonzalez is cited in that opinion, id. at 539, 541, ironically, the only discussion of Amador-Gonzalez comes in dissent, id. at 545-46 (Tjoflat, Brown, in part, Ains-worth and Vance dissenting), where it is cited in support of the proposition that "the ulterior motivations of the officer will not ordinarily void an otherwise legal stop or arrest.” Id. at 545 (footnote omitted). Such is Causey’s circumstance. . Scott came to the attention of our court at a time when petition for rehearing was pending in Cruz v. United States, 581 F.2d 535 (5th Cir. 1978), the last of the panel’s "line” of cases.

It provoked a dissent from the denial of that petition, penned by Judge Tjoflat, then of our circuit, and joined by four other judges. In part, his dissent observed: [T]he gist of my prior dissenting argument is that the law of this circuit teaches that the motives of an officer are irrelevant to the determination whether a stop or arrest effected by him is constitutionally valid. If the officer has objective justification for the stop or arrest, it is valid.

The majority, however, looked to the subjective motivations of the officer and held invalid the stopping of a vehicle driven by the defendant and containing illegal aliens.... The Supreme Court squarely rejected the majority’s reasoning in its recent opinion in Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978). In Scott, the Court enunciated the standards by which compliance with the minimization requirement for wiretapping and electronic surveillance under title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2510-2520 (1976), is determined.

The Court equated the standards under the Act to those under the fourth amendment to the Constitution id. 436 U.S. at 136, 98 S.Ct. at 1724, and reaffirmed the constitutional principle that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.” Id. 436 U.S. at 138, 98 S.Ct. at 1723.

Motives, the Court continued, are not irrelevant to the suppression inquiry, for they "may have some relevance in determining the propriety of applying the exclusionary rule.... This focus on intent, however, becomes relevant only after it has been determined that the Constitution was in fact violated.” Id. 436 U.S. at 139 n. 13, 98 S.Ct. at 1724 (emphasis added). Under Scott and the law of this circuit as it stood before the en banc opinion in this case, the stop of the defendant’s vehicle was constitutionally sound because there were uncontested objective justifications for it. U.S. v.

Cruz, 587 F.2d 277, 278 (5th Cir.1978) (citations and footnotes omitted). . At this point the Court cites to various Court of Appeals' opinions, ours being Dodd v. Beto, 435 F.2d 868, 870 (5th Cir.1970), where we observed: At the trial Officer Hamer did not testify as to his subjective theory of the crime committed during the time he was looking for Dodd. He was seeing Dodd as a "suspicious person." The test of probable cause is not the articulation of the policeman’s subjective theory but the objective view of the facts. . See, e.g., United States v.

Basey, 816 F.2d 980 (5th Cir.1987), holding that where it was undisputed that officers had probable cause to arrest and did arrest a motorist for violation of the state financial responsibility law, any inquiry into their alleged ulterior motivation to question him about a burglary was irrelevant. . Even in callings far less mundane this is the rule, it being a matter of general theological agreement that the mindset of the minister does not hinder the efficacy of the sacraments. .

Part III of the dissent calls up the spectre of police combing the nation by computer to discover somewhere a delinquent parking ticket on the basis of which an arrest warrant can be obtained, an arrest made, and a custodial interrogation about an unconnected crime conducted. Assuming that these concerns are relevant to such a case as this — one in which the police arrested on an outstanding local warrant — a few observations seem in order.

The first is that governments need not authorize arrest for petty offenses and, if they do so, should not be startled if warrants issued pursuant to their authorizations are taken seriously and occasionally executed. Presumably all issued were meant to be executed or the time and effort to issue them would not have been spent. Other means are frequently employed in the case of parking tickets: means, for example, such as seizing or immobilizing the automobile of the offender. It is possible to enforce the law without arresting petty offenders.

Should the public become sufficiently exercised about what the dissent views as abuse of such arrest warrants, it can direct such a course of enforcement; it is not necessary for us to read another troublesome, unstated provision into the Constitution to serve such an end. The second is that Causey had, long before the police apprehended him, forfeited his right to be free from arrest. He was already the object of an arrest warrant; he had been subject to arrest at all times since its issuance; and he can scarcely complain that the police finally got round to executing a valid warrant.

The third is that there is no contention before us en banc that his interrogation did not fully comply with all constitutional requirements, so that for present purposes it must be assumed that the conduct of the police in that regard was impeccable and that Causey has received all that Miranda or the Fifth Amendment grants him. This being so, he is reduced at this juncture to complaining that it was unreasonable for the police to arrest him on an admittedly valid warrant because of the subjective motive which moved them to pick it up and execute it: that he had caught their eye again by robbing a bank.

Even so, the dissent would ride to his rescue; and it is this police action that the dissent intones "violated the fourth amendment,” thus assuming the answer to the question that it poses. . By Circuit rule, the panel disposition is of no further effect, having been vacated by our grant of en banc consideration. In the course of our opinion, we have referred from time to time to Causey's confession as voluntary or uncoerced, the trial court having so concluded.

That issue was not before us for adjudication, however; and neither it nor any other upon which neither we nor the panel has yet passed is foreclosed by today’s decision. We decide only the issue stated in our opinion's first sentence.