Lead Opinion
Judge TRAGER dissents in a separate opinion.
The government appeals from an order entered in the United States District Court for the Southern District of New York (McKenna, J.) to suppress inculpatory statements made by defendant-appellee while in custody. We AFFIRM the order of the district court on the ground that the initial interrogation conducted by an investigator aware of the obvious need for a Miranda warning, followed 90 minutes later by a second, post-Miranda interrogation by the same investigator, on the same subject matter, under similar circumstances and with no explicit curative language amounted to a deliberate, two-step interrogation technique designed to undermine the defendant’s Miranda rights.
BACKGROUND
In March 2005, the United States Postal Service suspected defendant-appellee William Capers, employed as a mail handler, of stealing money orders from Express Mail envelopes. Postal Inspectors decided to conduct a sting operation targeting Capers. In December 2005, Inspectors planted two Express Mail envelopes in the mail-sorting facility where Capers worked. One envelope contained $30 cash, and the other contained two $80 money orders and was equipped with an alarm device. The alarm was set to trigger automatically in the event the envelope with the money orders was opened and its contents removed.
Haring planted the envelopes in a mail container, Postal Inspectors Hoti, Del Giudice, Moon, and Chow conducted surveillance of Capers throughout the day. At approximately 5 p.m., Capers noticed the envelopes for the first time. Approximately two hours later, Capers and Juan Lopez, a fellow employee, entered a trailer holding mail containers and briefly disappeared from the inspectors’ view. Less than one minute later, the alarm in the envelope sounded, and the postal inspectors rushed into the trailer to apprehend both Capers and Lopez. The inspectors handcuffed both suspects. Inspector Hoti instructed Capers to follow him into a supervisor’s office. Inspectors Del Giudice and Moon also entered the office. They instructed Capers to sit in a chair, still handcuffed, while the three inspectors stood around him. None of the inspectors gave Capers a Miranda warning.
According to the testimony of Del Giudice, Hoti said to Capers:
*472 something like, look, you know, talk to me or don’t talk to me, I don’t care but I’m telling you right now or I’ll tell you that I’m going to do my best to make you go away, and I just want you to know. And I’ve been watching you all day. I know everything that you did tonight.
When they arrived at the Bronx Domicile, the inspectors placed Capers in an interview room and handcuffed him to the chair in which he sat. Del Giudice and Moon remained with him, engaging him in further conversation, and gathering relevant personal information from Capers for their paperwork. At one point, Capers asked Del Giudice about the possibility of being fired, and Del Giudice told him that “it’s in your best interest to tell the truth when Inspector Hoti comes down. Be honest. It’s always better if you’re honest.” (Hr’g Tr. 117.)
Capers and the two postal inspectors waited for approximately 30 to 40 minutes until Hoti entered the room. Hoti then advised Capers of his Miranda rights. Hoti made no reference, however, to the statements Capers had already made during the initial interrogation. Hoti explained in his testimony, “I don’t remember the specific question and its sequence, and I don’t see a need to say what did you do with the contents of this Express Mail when I already have the answer to that. So I would not have asked that same question.” (Hr’g Tr. 72.) Capers signed a Postal Service Warning and Waiver of Rights form, and Hoti proceeded to question Capers about the events of the evening, specifically asking about what he did with the Express Mail envelopes earlier that night. Capers verbally confessed to taking the money orders. When Hoti asked him to provide a written statement, Capers replied by asking, ‘What’s in it for me?” (Hr’g Tr. 51.) Hoti told Capers “there’s nothing I can promise you,” and then ended the questioning. (Hr’g Tr. 51.)
Capers was indicted in March 2006, charged with one count of theft of mail matter by a postal employee, in violation of 18 U.S.C. § 1709. He moved to suppress the inculpatory statements he made both before and after receiving the Miranda warning, and on March 30, 2007, the district court entered an order suppressing the statements. The district court found
DISCUSSION
I. Standard of Review
“We review a district court’s determination regarding the constitutionality of a Miranda waiver de novo.” United States v. Carter,
II. Miranda and the Two-Step Interrogation Technique
The issue before us is whether Hoti and the other postal inspectors deliberately deprived Capers of the rights to which he is entitled under Miranda v. Arizona,
“The purpose of the Miranda warning is to ensure that the person in custody has sufficient knowledge of his or her constitutional rights relating to the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary.” Carter,
Elstad involved a situation in which a suspect made a self-incriminating statement while two police officers were at his home investigating a robbery. At the time he had not received a Miranda warning. Elstad,
Whereas Elstad involved a good-faith effort by the police to administer a proper Miranda warning, Seibert addressed the use of a two-step interrogation strategy designed to elicit a post-Miranda waiver and confession after the defendant had already confessed before he was given Miranda warnings. In Seibert, the police department had a policy of withholding Miranda warnings until an arrestee confessed and then reading the arrestee Miranda warnings and asking for a waiver prior to eliciting a second confession. Seibert,
The Seibert plurality concluded that “[u]pon hearing warnings only in the aftermath of interrogation and just after making a cоnfession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.” Id. at 613,
The plurality voted to suppress the second confession because, unlike in Elstad, the unwarned interrogation was “systematic, ejdiaustive, and managed with psychological skill.” Id. at 616,
Justice Kennedy agreed with the plurality’s conclusion that the postwarning statements should be suppressed, but he believed the plurality’s test “cut too broadly,” id. at 622,
In Carter, this Court joined the Eleventh, Fifth, Ninth, Third, and Eighth Circuits in applying Justice Kennedy’s approach in Seibert, holding that “Seibert lays out an exception to Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain the postwarning confession.” Carter,
Analyzing “[t]he factual differences between [Carter’s] case and Seibert,” id. at 536, we determined that the agents in Carter did not deliberately use a two-step interrogation strategy designed to circumvent Miranda for three reasons: (1) there was almost no overlap between the suspect’s first statement and his subsequent confession; (2) different officers questioned the suspect at different locations (the first outside the store that was being searched and the second in an interrogation room), and the second officer was not aware of the suspect’s previous inculpatory statement; and (3) “the postwarning questioning was not a continuation of the prewarning question.”
Here, in a decision that predated Carter, the district court found that Capers did not give his post-Miranda warning statement “voluntarily with a full awareness of the rights being waived and the consequences of doing so.” Capers,
In a footnote to its decision, the district court remarked that “if Justice Kennedy’s Seibert concurrence represented the law, suppression would be denied.” Capers,
Our intervening decision in Carter, however, requires a different analysis. Under Carter, we must address whether the officers employed a “deliberate, two-step strategy, predicated upon violating Miranda during an extended interview,” Seibert, 542 U.S. at 621,
III. Deliberateness
In Seibert, because the record was clear that the interrogating officers intentionally and purposefully employed a technique in which they had been instructed, id. at 609-10,
As an initial matter, we note that Justice Kennedy did not articulate how a court should determine whether an interrogator used a deliberate two-step strategy- • • •
For example, Justice Kennedy’s opinion is silent as to what, if any presumptions apply or which party bears the burden of proving or disproving deliberateness.
United States v. Williams,
In constructing a method to determine deliberateness, the Ninth Circuit in Williams looked to whether “objective evidence and any available subjective evidence, such as an officer’s testimony, support an inference that the two-step interrogation procedure was used to undermine the Miranda warning.” Id. at 1158. Following on the Ninth Circuit’s guidance, the test articulated by the Eleventh Circuit to determine deliberateness relies upon “the totality of the circumstances including ‘the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel and the overlapping content of the pre- and post-warning statements.’ ” United States v. Street,
[Tjhere was nothing in the circumstances or the nature of the questioning to indicate that coercion or other improper tactics were used. All evidence suggests that Nunez was calm and cooperative, and the agents did not act with aggressiveness or hostility. The district court stated that “the defendant initially had done nothing more than voluntarily respond to questions as to his name, place of birth, and immigration status.”
United States v. Nunez-Sanchez,
In our Court’s opinion in Carter,
These considerations, while determinative of the analysis of deliberateness on the facts presented in Carter, are by no means the only factors to be considered when seeking to divine whether the officers’ actions are sufficiently indicative of a deliberate circumvention of Miranda to
Recognizing the inherent difficulty in proving deliberateness, and also conceding that “determining the officer’s state of mind at the time of the interrogation can be difficult,” we turn to the unsettled question of which party bears the burden of proving deliberateness or absence thereof. United States v. Ollie,
“[Wjhen a confession challenged as involuntary is sought to be used against a criminal defendant at his trial, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered.” Lego v. Twomey,
Indeed, the Supreme Court has “always set high standards of proof for the waiver of constitutional rights.... ” Tague v. Louisiana,
Looking to the totality of the circumstances in the case before us, the evidence proffered by the government to show that Capers was not the subject of a deliberate, two-step interrogation is outweighed by subjective and objective evidence to the contrary. Hoti testified that he delayed issuing a Miranda warning because his “mindset was on, one ... recovering evidence, ... [a]s well as determining if the two of them or if — either both of them or only one of them had any role to play in committing the crime.” (Hr’g Tr. 65.) Hoti testified that he was concerned about losing the money orders in the “very, very large” facility because the money orders were about the size of a U.S. dollar and the defendants could “toss them, hide them ... [and] [y]ou’d have a real, real tough time finding [them] in this large facility like that with all the packages and other types of mail.” (Hr’g Tr. 31-31.) As to making a determination about defendant Lopez, Hoti testified that “[i]f I could determine fairly quickly that, in fact, he had no role to play in that crime, I need to take those cuffs off and basically cut him loose.” (Hr’g. Tr. 35.) When asked whether he was in a position to read Capers his Miranda warnings before asking him about the money orders, Hoti replied “absolutely.” (Hr’g. Tr. 65.)
The district court concluded from this testimony that Hoti’s purpose in delaying a Miranda warning was not to undermine Capers’ Fifth Amendment rights, but rather “to prevent the loss or concealment of the currency and money orders that the Express Mail envelopes contained, and to ascertain whether Lopez was involved in the crime, so that he could be freed or not.” Id. at *12 n. 13 (citation omitted). Neither of these reasons, however, justifies delaying a Miranda warning once it is obvious that a suspect is in custody. There is no exception to Miranda that allows a delay in giving Miranda warnings in order to preserve evanescent evidence. Neither is there an exception to Miranda that permits delaying the warnings in order to ascertain whether a suspected co-conspirator may be entitled to release. Indeed, we agree with the Williams Court in its observation that
[o]nce a law enforcement officer has detained a suspect and subjects him to interrogation ... there is rarely, if ever, a legitimate reason to delay giving a*481 Miranda warning until after the suspect has confessed. Instead, the most plausible reason ... is an illegitimate one, which is the interrogator’s desire to weaken the warning’s effectiveness.
Inexperience, while not a legitimate excuse for postponing a Miranda warning, nevertheless may save a confession from exclusion under Seibert. See United States v. Naranjo,
The district court found that there was “no evidence ... that Inspector Hoti had the specific intent to use the two-stage questioning technique” to undermine Capers’ Miranda rights. Capers,
The dissent asserts that the “test used by the majority to determine whether Inspector Hoti deliberately utilized a two-step interrogation technique effectively undermines the subjective test established by Justice Kennedy ... because it ignores subjective evidence showing that the inspector did not deliberately utilize a two-step technique, and instead relies exclusively on the objective factors listed in the non-controlling Seibert plurality opinion.” Dissent at 491. This conclusion misreads our analysis and conflates Justice Kennedy’s test with that articulated by Justice Breyer in his concurring opinion in Seibert. 542 U.S. at 617,
The dissent asserts that the above consideration “gives absolutely no weight to the inspector’s testimony that his reasons for not immediately advising Capers of his Miranda rights were to prevent the loss or concealment of the currency and money orders that the Express Mail envelope contained and to ascertain whether Lopez was involved in the crime.” Dissent at 492. The dissent argues that Judge McKenna “witnessed Inspector Hoti’s testimony and was therefore better able to assess his credibility.” Dissent at 492. Although appellate courts do not have the opportunity to observe witness testimony and are, therefore, precluded from making credibility determinations, in light of the clear inconsistency between Inspector Hoti’s stated reasons for delaying Miranda warnings and the objective and subjective evidence constituting the remainder of the record bearing on this point, it is clear the district court’s determination “that there is no evidence ... Inspector Hoti had the specific intent to use the two-stage questioning technique with the purpose of first obtaining unwarned incriminating statements in order, in a subsequent warned interrogation, to obtain similar incriminating statements,” Capers,
Objective evidence also leads us to conclude that the Government has failed to meet its burden of demonstrating that Capers was not subjected to a two-step interrogation. First, there is considerable overlap between the statements elicited from the defendant during the first and second interrogation. Hoti’s initial interrogation of Capers resulted in a confession and “there remained ‘little, if anything, of incriminating potential left unsaid.’ ” Capers,
Unlike in Carter, the initial conversation between Capers and Hoti was in no way casual. See Nunez-Sanchez,
Between the two phases of the interrogation, Hoti’s fellow inspectors engaged Capers in “small talk,” and advised him that it was in his interest to tell the truth when Hoti arrived. Capers continued to be handcuffed throughout the process. The second phase of the interrogation also opened with a hostile remark, namely Hoti’s observation that Capers was “one of the most laziest employees I’ve ever seen.” Cf. Nunez-Sanchez,
IV. Curative Measures
Deliberateness having been established, we must next consider whether any curative measures intervened to restore the defendant’s opportunity voluntarily to exercise his Miranda rights. See Seibert,
As discussed, although approximately 90 minutes passed between the first and second interrogations, the two rounds of questioning bracketed one continual process. Del Giudice and Moon were with Capers throughout the 90 minutes, engaging in “small talk” and advising Capers to tell the truth. Despite the different locations of the interrogation sessions, both occurred while Capers remained in handcuffs and in settings that clearly established the authoritative nature of the questioning. There is little meaningful difference between the circumstances surrounding Capеrs’ two interrogation sessions, and there was certainly no “substantial break” that would have restored his Miranda rights.
Moreover, despite Hoti’s knowledge that Capers’ first statement would be inadmissable in court, he never alerted Capers to that fact. Capers,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s decision to suppress the defendant’s post -Miranda statements.
Notes
. The Supreme Court noted a police officer’s testimony at trial that the two-step strategy was promoted by his department, as well as by a national police training organization and was corroborated by a manual from the Police Law Institute, which provided instruction on the technique. Seibert,
. Because we concluded that the Seibert approach was inapplicable in Carter, we did not reach the issue of whether the police undertook any curative measures such that the suspect “would understand the import and effect of the Miranda warning and of the Miranda waiver.” Seibert,
. In an unpublished Order and Judgment the Tenth Circuit, while declining to endorse either Kennedy’s concurrence or the Seibert plurality opinion as the holding of Seibert, explained in United States v. Crisp,
. We note that in light of the district court's conclusion that “Justice Kennedy’s concurrence ... cannot reasonably be taken to be the 'law of the land,’ ” it likely did not avail itself of a number of opinions by our sister circuits, which have been instructive in our analysis, advising trial courts how to gauge deliberateness under Justice Kennedy's Seibert concurrence. See Street,
. The dissent argues that under the test outlined above “in almost all cases where a prewarning confession is suppressed due to a violation of the suspect’s Miranda rights, a subsequent post-warning confession will also be suppressed because the interrogating officer will be unable to articulate a 'legitimate' reason for not advising the suspect of his or her Miranda rights prior to the initial interrogation.” Dissent at 493. This conclusion also misreads our reasoning. To the contrary, there be will many occasions where the totality of the circumstances surrounding the two interrogations leads to the conclusion that a two-step interrogation was the product of a "rookie mistake,” resulted from poor communication among investigating officers, or occurred when an experienced officer suffered a momentary lapse in judgment. What will require higher scrutiny are situations where, as here, an experienced officer conducts both interrogations, and the reasons proffered for not initially Mirandizing a suspect are not only questionable but also inherently lack credibility in light of the totality of the circumstances.
. Consideration of whether or not curative measures were taken is an inquiry separate and apart from determining deliberateness. When analyzing deliberateness, however, courts may consider an experienced officer’s failure to warn a suspect that an earlier admission, known to the interrogating officer, is inadmissible. Indeed such an omission on the part of the interrogating officer is probative of a "calculated” plan to subvert Miranda.
Dissenting Opinion
dissenting:
I respectfully dissent. My colleagues claim to follow this Court’s previous decision in United States v. Carter,
A more faithful application of Justice Kennedy’s Seibert concurrence requires a conclusion that Capers’ post-warning statements are admissible based on the district court’s factual finding — made after a thorough review of all of the evidence— that Inspector Hoti did not deliberately utilize a two-step interrogation technique. The majority improperly undertakes a de novo review of the district court’s factual findings rather than reviewing them using the traditional “clearly erroneous” standard. The majority suggests that a de novo review is made necessary by its purported construction of a novel “totality of the circumstances” test for determining whether an interrogating officer purposefully utilized а two-step interrogation technique. But this new test is entirely consistent with the one used by the district court to find that Inspector Hoti did not deliberately use such a technique, and therefore
Moreover, even if de novo review is appropriate in this case, I would still disagree with the majority’s decision to suppress the post-warning confession because the government has met its burden of proving by a preponderance of the evidence that Inspector Hoti did not intend to utilize a two-step interrogation technique. To the extent that the majority finds that any of the district court’s factual findings were clearly erroneous, the majority misapplies the clearly erroneous standard by making credibility determinations regarding witness testimony. Such credibility determinations, while never appropriate for an appellate court to make, are particularly inappropriate where, as here, there is nothing in Inspector Hoti’s testimony that is either contradicted by the record evidence or inherently unbelievable.
Because a proper review of all the evidence (including the subjective evidence) establishes that Inspector Hoti did not deliberately utilize a two-step interrogation technique to circumvent Miranda, the voluntary statements made in response to the post-warning interrogation should not be suppressed.
I
This case involves a suspect who made a self-incriminating statement in response to questions from an interrogating officer pri- or to being warned of his Miranda rights, and then later made additional self-incriminating statement after being warned of his Miranda rights. The Supreme Court has twice considered cases of this nature — first in Oregon v. Elstad,
In Oregon v. Elstad, two officers went to the home of Michael Elstad — an individual they suspected of robbing a neighbor’s house — with a warrant for his arrest. While there, one of the officers had a brief conversation with the suspect without warning him of his Miranda rights.
The Supreme Court found that, although the initial unwarned statement was inadmissible, the later postwarning statement was admissible because it was voluntarily made. According to the Court, “[tjhough 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.” Id. at 309,
The issue of pre- and post-warning confessions again came before the Supreme Court in Missouri v. Seibert. In that case, the Court was confronted with the intentional use of a two-step interrogation technique where officers in the Rolla, Missouri police department had been trained to “withhold[ ] Miranda warnings until after interrogating and drawing out a confession,” Seibert,
Justice Souter’s plurality opinion sets forth an objective test from the perspective of the suspect being interrogated, whereby a court deciding the admissibility of post-warning statements that followed inadmissible pre-warning statements should determine “whether it would be reasonable to find that in these circumstances the warnings could function ‘effectively’ as Miranda requires.” Id. at 611— 612,
The plurality then listed several objective factors that a court should consider when determining whether the warning could function effectively. These factors included: (1) the completeness and detail of the questions and answers in the first round of interrogation, (2) the overlapping content of the two statements, (3) the timing and setting of the first and second, (4) the continuity of police personnel, and (5) the degree to which the interrogator’s questions treated the second round as continuous with the first. Id. at 615,
Justice Kennedy, writing separately in an opinion joined by Justice Breyer, agreed with the plurality that the post-warning statements should be suppressed, but suggested a different test for determining their admissibility. In contrast to the plurality’s objective test, Justice Kennedy — focusing more on the conduct of law enforcement — proposed a “narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Id. at 622,
In reaching this conclusion, Justice Kennedy rejected the majority’s purely objective test, which was to be applied in cases of both intentional and unintentional two-stage interrogations, as “cut[ting] too broadly.” Id. at 621-22,
Despite the fragmented nature of the decisions in Seibert, both the Supreme Court’s and this Court’s precedents make clear that Justice Kennedy’s concurring opinion controls. “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.’ ” Marks v. United States,
Even more importantly for our purposes, this Court has already held that Justice Kennedy’s concurring opinion in Seibert is the controlling opinion. In United States v. Carter,
My colleagues do not dispute that, post-Carter, Justice Kennedy’s concurring opinion in Seibert clearly controls in this circuit (as well as most other circuits that have decided the issue
Having recognized that Justice Kennedy’s concurring opinion in Seibert controls, this case should be easily resolved based entirely on the district court’s factual findings. Instead, the majority goes astray by reviewing the district court’s factual findings de novo,
In Judge McKenna’s thorough and well-reasoned opinion below, he stated that “[tjhere is no evidence ... that Inspector Hoti had the specific intent to use the two-stage questioning technique with the purpose of first obtaining unwarned incriminating statements in order, in a subsequent warned interrogation, to obtain similar incriminating statements.” United States v. Capers, No. 06-CR-266,
The district court’s factual findings made at a suppression hearing should not be overturned unless they are found to be clearly erroneous. United States v. Ansaldi,
In this case, the district court considered the testimony from the interrogating officer — Inspector Hoti — and determined that he testified credibly with regard to his reasons for not giving defendant Miranda warnings prior to questioning him at the Bronx DMU when he said:
Again, the importance to me in understanding this facility, I did not want to*490 lose any of the evidence, I did not want tо lose any of the evidence in the case. Obviously the importance of it, to recover that evidence as quickly as I can. Secondly, I have another individual that’s — yes, he’s cuffed outside of the office, Mr. Lopez. If I could determine fairly quickly that, in fact, he had no role to play in that crime, I need to take those cuffs off and basically cut him loose.
Capers,
Even my colleagues in the majority are unwilling to say that this factual finding is clearly erroneous.
But instead of reviewing the district court’s factual findings for clear error, the majority improperly chooses to review the court’s factual findings de novo, replacing the district court’s credibility determinations with its own and re-weighing the evidence based on information obtained entirely from the written record.
The majority justifies its reexamination of the district court’s factual findings by claiming that it is “constructing a method to determine deliberateness,” Majority Op. at 478, namely, establishing which party bears the burden of proving deliberateness, and what that burden is. But even accepting that the majority’s opinion clarifies aspects of a test that were previously unsettled in this circuit, there is still no basis for ignoring the district court’s thorough fact-finding on this issue because the test articulated by the majority is the exact same test that was applied by the district court.
The majority states: “[W]e join our sister circuits in concluding that a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness, with a recognition that in most instances the inquiry will rely heavily, if not entirely, upon objective evidence.” Majority Op. at 479. It goes on to state: “[W]e hold that the burden rests on the prosecution to disprove deliberateness,” id. at 479, and that the burden is that of a
The test used by the district court to determine whether Inspector Hoti utilized a deliberate two-step interrogation technique to circumvent Miranda is entirely consistent with each of the above holdings by the majority. In its written opinion, the district court examined “the totality of the circumstances” in making its factual determination regarding deliberateness, considering both subjective and objective evidence that it found relevant to determining whether Inspector Hoti deliberately utilized a two-step interrogation technique. Capers,
Although the district court does not explicitly state in its opinion which side bears the burden of proving deliberateness, there is no doubt that the district court required the government to prove deliberateness by a preponderance of the evidence. At oral argument in the district court, Judge McKenna asked the parties, “[A]m I correct in assuming that the general rule applies, and that is, since this is a motion to suppress statements, that the government has the burden of proof by a preponderance,” (J.A. at 349), to which the attorney for the government responded, “That’s correct, your Honor.” (J.A. at 350).
II
Even if de novo review of the district court’s factual determination regarding deliberateness were appropriate in this case, I would still be unable to agree with the majority’s finding that Inspector Hoti deliberately utilized a two-step interrogation technique to circumvent Miranda.
The test used by the majority to determine whether Inspector Hoti deliberately utilized a two-step interrogation technique effectively undermines the subjective test established by Justice Kennedy in his concurring opinion in Seibert (and adopted by this Court in Carter) because it ignores subjective evidence showing that the inspector did not deliberately utilize a two-step technique, and instead relies exclusively on the objective factors listed in the non-controlling Seibert plurality opinion.
Despite the fact that Judge McKenna— who witnessed Inspector Hoti’s testimony and was therefore better able to assess his credibility — found that the inspector’s testimony was credible, the majority chooses to give it no weight whatsoever because, according to the majority, Hoti did not articulate a legitimate exception to Miranda. Notably, the majority states:
Neither of these reasons [given by Inspector Hoti] justifies delaying a Miranda warning once it is obvious that a suspect is in custody. There is no exception to Miranda that allows a delay in giving Miranda warnings in order to preserve evanescent evidence. Neither is there an exception to Miranda that permits delaying the warnings in order to ascertain whether a suspected eo-conspirator may be entitled to release.
Majority Op. at 480.
Even assuming the majority is correct in finding that Inspector Hoti’s testimony did not express “legitimate” reasons for not immediately advising Capers of his Miranda rights, that conclusion would be of little import to the inquiry at hand— whether he deliberately utilized a two-step interrogation technique. Under the test established in Justice Kennedy’s concurring opinion in Seibert, the operative question is not whether Inspector Hoti had a legitimate reason for questioning Capers prior to warning him of his Miranda rights, but instead whether his reason for doing so was to deliberatеly utilize a two-step interrogation procedure with the intended purpose of undermining Miranda. In an opinion joined by retired Justice David Souter sitting by designation, the First Circuit recognized as much and held that an interrogation for the purposes of recovering evidence did not constitute a deliberate two-step strategy because the initial interrogation was “aimed primarily at securing the [stolen] weapon” that the police were searching for. United States v. Jackson,
By importing the tests establishing legitimate exceptions to Miranda into the factual test for whether an interrogating officer deliberately utilized a two-step technique, the majority completely undermines the subjective test that lies at the heart of Justice Kennedy’s Seibert opinion. The Elstad/Seibert line of cases is only relevant when statements made in response to the initial questioning are excluded by Miranda. If district courts are now required to disregard subjective testimony about an interrogator’s reasons for not warning a suspect of his Miranda rights whenever pre-warning statements would be excluded by Miranda, then courts considering two-step interrogations will be forced to disregard whatever subjective evidence may exist.
The inevitability of this result is made clear when the majority states that “[t]he only legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers or the public,” Majority Op. at 481 (citing United States v. Newton,
Moreover, even if the legitimacy of an interrogating officer’s actions were an appropriate consideration for determining whether the officer intentionally used a two-step technique to undermine Miranda, there is nothing illegitimate about the reasons put forth by Inspector Hoti. All of the evidence sought by Inspectоr Hoti is beyond the scope of the Miranda protection. Although Capers’ pre-warning statements would not have been admissible against him in a criminal proceeding, Inspector Hoti testified that he was not interrogating Capers in order to procure a confession. Instead, he was seeking physical evidence (the currency and money orders) and information about Capers’ co-conspirator, Lopez. An interrogating officer’s failure to advise a suspect of his Miranda rights does not require suppression of the physical fruits of the suspect’s unwarned statements. See United States v. Patane,
Ill
In addition to improperly finding that Inspector Hoti’s proffered reasons for delaying the Miranda warning should not be considered because they lack legitimacy, the majority also finds that those reasons lack credibility when considered in light of the objective evidence. Majority Op. at 481-82. Although this finding appears to be entirely superfluous to the outcome of this appeal based on the majority’s novel “legitimacy” test, see supra notе 7, to the extent it is at all relevant to result the majority reaches, it is an improper application of the clearly erroneous standard.
While a district court’s findings of fact may be overturned if this Court determines that they are clearly erroneous, this Court is not entitled to overturn a district court’s assessment of the credibility of a witness — an assessment which is the “providence of the district court.” United States v. Maldonado-Rivera,
The majority disregards the above limits on the role of an appellate court, choosing instead to reject the credibility determinations made by the district court that it considers “dubious.” While such a review of the district court’s credibility determinations is never appropriate, it is particularly problеmatic in this case where there is nothing in Inspector Hoti’s testimony that is either contradicted by the record evidence or inherently unbelievable. As such, the reasons given by the majority are insufficient to satisfy the clearly erroneous standard, which requires this Court to have a “firm conviction that a mistake has been committed.” United States v. Iodice,
With regard to Inspector Hoti’s claim that he had to determine whether Lopez was involved in the scheme, and if he was not, release him, the majority states that
With regard to Inspector Hoti’s claim that he did not want to lose the money orders, the majority finds that this claim is “belied by the testimony of the arresting officers that Capers and Lopez were detained almost directly after the envelope alarm sounded and were found either still in the storage container, or in that immediate vicinity.” Majority Op. at 482. But the majority fails to explain how those facts are sufficient to leave this Court with “the firm conviction” that Inspector Hoti did not actually fear losing the money orders.
Because Inspector Hoti’s testimony is entirely plausible (and certainly not so implausible as to raise a “firm conviction that a mistake has been committed”), it was not clear error for the district court to find that the government met its burden of proving by a preponderance of the evidence that Inspector Hoti did not deliberately utilize a two-step interrogation
For the foregoing reasons, I respectfully dissent.
. The applicability of Maries to Seibert is unaffected by this Court’s opinion in United States v. Alcan Aluminum Corp.,
. As the majority recognizes in its opinion, this view has been adopted by the Third, Fifth, Eighth, Ninth and Eleventh Circuits. Majority Op. at 476. But see United States v. Heron,
. Although the majority does not explicitly state that it is applying a de novo standard of review to the district court's factual findings, its analysis clearly demonstrates that it is doing so. See Majority Op. at 480 (“Looking to the totality of the circumstances in the case before us, the evidence proffered by the government to show that Capers was not the subject of a deliberate, two-step interrogation is outweighed by subjective and objective evidence to the contrary.”); see also id. at 480 ("Objective evidence also leads us to conclude that the Government has failed to meet its burden....”).
. Although the majority states that the "district court’s [subsidiary] finding that there was 'no evidence’ of a deliberate, two-step interrogation tactic at work was clear error,” Majority Op. at 482, it notably does not find that the district court’s ultimate factual finding that Inspector Hoti did not intend to use a two-step interrogation technique to circumvent Miranda was clear error. Instead, it reviews the evidence in the record de novo and finds that "the government has not produced sufficient objective evidence to meet its burden.” Id. at 484; see also supra note 3.
. Even though the district court found that the objective evidence did not support defendant's contention that Inspector Hoti deliberately used a two-step interrogation technique, it nonetheless considered all of the objective factors articulated by the Seibert plurality in reaching that conclusion. See Capers,
. The district court also clearly applied this preponderance standard in its written opinion. As stated above, the district court found that none of the evidence in the record contradicted Inspector Hoti’s testimony that he did not intend to use a two-step technique to circumvent Miranda. See supra at 489-90.
. The majority claims that its “analysis considers the subjective evidence adduced at the suppression hearing ... as instructive but not automatically dispositive,” Majority Op. at 482, but finds that, in this case, Inspector Hoti's testimony may be disregarded because it lacks credibility, id. But even if the majority had found that Inspector Hoti’s testimony was credible, the majority would still have refused to consider the testimony because it deems Inspector Hoti's stated reasons as being illegitimate. Id. at 480-81. Notwithstanding the majority's proclamations to the contrary, it is clear that the "legitimacy” test adopted by the majority would malte subjective evidence irrelevant in almost every two-
. The majority suggests that subjective evidence may rarely exist in cases involving two-step interrogations. Majority Op. at 479-80 ("[I]n most instances the inquiry will rely heavily, if not entirely, upon objective evidence.”). But even if that were so, the poten
. Although the majority's test could still find that a two-step technique was not intentionally used when the pre-warning interrogation was performed by a different officer than the post-warning interrogation, and the second officer was not aware of the initial interrogation, see, e.g., Carter,
. Even if Inspector Hoti’s fear of losing the money orders was irrational, a finding that he did, in fact, hold that irrational belief would still be sufficient to show that he did not intend to utilize a two-step interrogation technique.
. It should be noted that Inspector Hoti could have retrieved the money orders simply by performing a search incident to arrest, and such a search would not have run afoul of any of Capers' constitutional rights. Nonetheless, this would not have resolved the issue of Lopez’s involvement.
. Because Inspector Hoti did not deliberately utilize a two-step interrogation technique, it is unnecessary to decide whether "curative measures [were] taken before the postwarning statements [were] made." Seibert,