United States v. Pacheco-Lopez

ultimately imposed. government’s ar-

gument ruling that a favorable for Hall “anomalous results” with

will create re-

gard to sentences or credit for concurrent

pretrial acknowledge detention fails important conceptual

there are distinctions

between those two situations and the one above, case. As

before us noted

giving pretrial a defendant credit for de- recognizes

tention that the time served is

directly linked to the conviction at issue. sentencing,

And the case of concurrent multiple

defendant serves time on offenses

simultaneously, so that one cannot discern being punished

which offense he is for at

any given moment.

We therefore conclude that Hall did not

actually any serve time for the two misde question.

meanor convictions in His mis

demeanor convictions should thus not be in calculating history

counted his criminal 4A1.2(c)(1).

points § pursuant to U.S.S.G.

III. CONCLUSION above,

For all of the reasons set forth judgment

we REVERSE of the dis-

trict REMAND court and the case for

resentencing opinion. consistent with this America,

UNITED STATES

Plaintiff-Appellee, PACHECO-LOPEZ,

Pedro

Defendant-Appellant.

No. 07-5408. Appeals, States Court of

Sixth Circuit.

Argued: Dec. 2007.

Decided and Filed: June 2008. Wicker, Wicker, Reed Kent

ARGUED: Louisville, Madi- Kentucky, Appellant. for Sewell, At- United States T. Assistant son Louisville, Kentucky, Appellee. for torney, Wicker, Wicker, Reed BRIEF: Kent ON Louisville, Lau- Kentucky, Appellant. Hall, Monica Terry Cushing, L. M. ra Attor- Wheatley, Assistant United Louisville, Kentucky, Appellee. neys, MERRITT, COLE, and Before: GRIFFIN, Judges. Circuit MERRITT, J., opinion delivered COLE, J., joined. court, in which 430-38), GRIFFIN, delivered (pp. J. dissenting opinion. separate OPINION had no information concerning either of the men when they were discovered at the MERRITT, Judge. residence. defendant, Pedro Pacheco-Lopez executing officers the search war- (Lopez), challenges district court’s de rant immediately Lopez handcuffed request suppress nial of his certain placed him at the kitchen ques- table for prior statements made to his arrest. The tioning. The sequence exact of events argues that his initial state during unclear, the questioning however, receiving his Mi prior ments—made because each of the three officers who randa warnings—should sup have been testified at July suppression pressed they because responses were to a hearing recalled the slightly events custodial and do not fall un different manner.1 The district court “booking to Miranda. exception” der judge relied primarily on DEA Agent Additionally, the defendant argues that his Mark Slaughter’s testimony finding admission, receiving later made after that Kentucky Trooper Lagrange’s State warning, resulted “Mi impermissible testimony was imprecise” “somewhat questioning. randa-in-the-middle” Be that Agent Brian Bester was present. cause the booking exception applies nar In accordance with the district court’s fac- rowly biographical questions and has tual finding, as well as the fact that one rarely been applied police outside of a officer admitted to remembering the facts station, we hold that the defendant’s first incorrectly, give we greatest weight to Of- statements should have been suppressed. ficer Slaughter’s account. similarly We Lopez’s find that post-Mi detainee, testified that the Lo- Of randa admission suppressed. should be pez, was initially asked questions related Accordingly, the district court’s decision is to securing the residence and to his identi- REVERSED. ty. Slaughter, speak who does not Span- ish, discovered that the detainees did not I. Facts speak English and obtained translating as- 13, 2006, March On undercover officers sistance from Lagrange. Slaughter asked arrested Gerardo Castro-Acosta and oth- Lopez his lived; name and where he ers on Clay Louisville, Avenue in Ken- responded detainee that he lived in Mexico tucky, during an arranged buy” “controlled and not at the Cooper Chapel resi- Road kilograms sixteen of cocaine. The indi- Slaughter dence. next Lopez asked when viduals involved in drug deal had ar- he arrived at the house and how he had rived a white Subaru car and a red gotten there. Lopez responded that he Dodge pickup truck. After making the had driven from Mexico previous Sun- arrests, obtained search war- day in a truck; white pickup Ford he then rant for Road, 6006 Cooper Chapel volunteered keys to the At pickup. address in Louisville for the regis- cars that point, Lopez was advised of his Mi- tered under Acosta’s name. When the Spanish by Lagrange. home, arrived at the they found the thereafter, Immediately Slaughter asked defendant, Lopez, and another individual Lopez whether he or Bernal-Bajo had identified as Bernal-Bajo. The officers brought any cocaine Lo- residence. 1. Only DEA Slaughter Bester, Officer Mark and Ken- Brian agent who was the lead on the tucky Trooper State Lagrange, Albert who present, was not but testified on a based translator, served present as the actually were second-hand account. during questioning. Special Agent DEA for clear error findings factual court’s transported had that he

acknowledged de novo. United Lagrange then conclusions legal Slaughter cocaine. ques- for further Meyer, States to a bedroom Lopez took indicated time Cir.2004). reviewing a at which tioning,2 Additionally, when further with to speak not want he did sup- a motion to court’s denial district questioning further No investigators.3 fight evidence review the we press, ga- went to then Slaughter occurred. States. to the United favorable most the white inspection of in an rage to assist Erwin, that the discovered officers where pickup, Cir.1998). hollowed been the truck had shaft of drive cocaine.4 to accommodate out may police Before plea conditioned guilty a entered Lopez must first custody,5 they in a gate suppress to his motion the outcome on v. warnings. Miranda the Miranda read judge, court The district the statements. 1602, Arizona, 436, 16 S.Ct. 86 384 U.S. pre- the characterization describing (1966). “interrogation” An 694 L.Ed.2d in “key factor” as the Miranda questions express question only [] “not comprises initial interaction that held on the or actions any words also ing, but Op. Dist. Ct. “interrogation.” an not know are part of judge’s 2355846, *2. The 2, at 2006 at WL incriminating an likely to reasonably elicit as “rela initial questions description Island suspect.” Rhode from the response with only important tively innocuous” 1682, 301, Innis, 291, 100 S.Ct. 446 U.S. v. informed hindsight” benefit “20/20 (1980). warnings Miranda 297 64 L.Ed.2d result, “the additional ruling. Id. As a however, questions not, required are and answered asked questions adminis police’s “reasonably related to subject to not warning [were] Miranda concerns,” as the defendant’s such trative 3, 2006 Id. under Seibert.” suppression color, address, weight, eye name, height, 2355846,at *2. atWL Penn address. birth and current date of argues appeal and timely a Lopez filed 601, Muniz, 496 U.S. 582, 110 v. sylvania constitute did questions that the initial (1990); 2638, 528 L.Ed.2d answers, and that “interrogation” Clark, v. States subsequent, along with Cir.1993) gath ... the routine (“ordinarily statements, suppressed. be should booking pur data biographical ering Interrogation and II. not constitute should poses Exception” “Booking ”).6 excep “booking This under reviewing requires to tion” sup to a motion involving In cases facts, as carefully scrutinize the court to the district reviews this Court press, does not contest government Bemal-Bajo 5. The suspected 2. The officers period during the custody in Lopez thus trying to intimidate might be the bedroom. at issue. him of time took Lopez specif- unclear whether 3. The record adopted equivalent Sixth 6. The silence, merely ically invoked "booking exception" before the speak fur- wish to he did not indicated that Penn recognized as officially much Court investigators. ther to the Avery, v. States See United sylvania v. Muniz. 1983). (6th Cir. Clay 717 F.2d Street was purchased at 4. The cocaine the drive shape corresponding to cylindrical shaft. relatively “[e]ven innocuous series of Lopez’s pre-Miranda questions may, light of the factual cir cannot be described merely biographi cumstance and the susceptibility cal, of a par but instead from an resulted interroga reasonably ticular suspect, be likely subject elic tion to the protections of Miranda. it an incriminating response.” United Some of the initial would not—in Avery, 717 F.2d isolation—implicate Miranda; very at the Cir.1983). booking Where the exception least, asking the name is the apply does not to statements made before type of biographical question permitted voluntary administration and waiver of Mi under the booking exception. But asking rights, those statements are “irre Lopez from, where he was how he had buttably presumed involuntary” and must house, arrived at the and when he had suppressed. United States v. Mashb arrived are “reasonably likely urn, (4th Cir.2005) (cit elicit an incriminating response,” thus Elstad, ing Oregon mandating a Miranda warning. The fact (1985)). 84 L.Ed.2d 222 Slaughter Officer did actually know that Lopez was involved in criminal requires This case further delineation of activity does not affect analysis. our the line between to relating the officers who questioned Lopez did know processing of an biographi arrest are shipment of cocaine involved in cal investigatory na the arranged buy had arrived from outside latter, ture. The former, but not the con during state previous week. Con stitute “interrogation” implicate sequently, asking questions about when Fifth Amendment and the attendant Mi Lopez how arrived at a household requirement. randa warning Compare ostensibly sale, linked to a drug as well as Avery, 717 F.2d (question at 1024 part his origin, are relevant to an investigation of a procedure “routine to secure bio and cannot be described as related only to graphical data” and thus not interroga securing the house or identifying the de tion), and United States v. King, 165 F.3d Furthermore, fendant. the officers imme (6th Cir.1998) 1998 WL 708707 (per diately ascertained that Lopez did not curiam) (holding that a defendant’s re speak English and shortly learned thereaf sponse question to a about his address was ter he Mexico, was from factors mak protected Miranda, not by notwithstand ing him “particularly susceptible” ques to ing the fact that pohce made use of the tioning before warnings. These statement, it because was not intended to implicate facts Miranda’s concern about elicit statements), incriminating with Unit the danger of coercion resulting from “the Soto, ed States v. 953 F.2d 263 Cir. interaction of custody and official interro 1992) curiam) (per (suppressing a response gation.” Perkins, See Illinois v. 496 U.S. a question about what a defendant was 292, 296, 110 L.Ed.2d 243 doing with drugs), and United States v. (1990) (discussing the purpose of Miranda Cole, Cir.2003) (sup and contrasting a situation where a defen pressing initial response defendant’s to the dant does not “feel compelled speak question, “Whose gun is this?” but denying silent”). fear of reprisal for remaining later, motion to suppress voluntary statements), and United States v. location, Down the nature of the question- (1st ing, Cir.1981) 665 F.2d 404 (suppress ing and the failure to take notes or docu- ing a question regarding the of an location ment the identity defendant’s support also airplane). our conclusion that booking exception majori III. Mira«da-in-the-Middle case. In the applicable Interrogations applied have where we ty of cases see, Avery, e.g., booking exception, Midway through interrogation, for questioning have done so we Lopez officers read his Miranda Appli station.7 that occurred at the Spanish. Immediately thereaf exception booking is most cation of the ter, they asked him whether he had station, at the where adminis appropriate Mexico, brought him cocaine with bookings such as normal trative functions responded which he the affirmative. exception ly Extending take place. The district court ruled that this statement oc type questioning here—which it found that should be admitted because during the inves private curred in a home line of did not questioning earlier con proceedings— of criminal tigatory stage interrogation. stitute an See Missouri v. protections Mi would undermine the 600, 608-09, 124 suspects. to afford to criminal randa seeks (administer (2004) 159 L.Ed.2d 643 subject to the Additionally, situations ing before a booking usually involve active exception confession makes a custodial admissible so answers, of a defendant’s documentation waiver). long proper Be as there was ques none of the officers who whereas incorrect, cause this conclusion any respons recorded of his tioned suppressed, must be earlier statements documentation—including ar Such es. whether Lo question then becomes be paperwork rest-related notes—would later, pez’s a defen during questioning about expected similarly suppressed or should whether of such background, purpose dant’s as the prosecution’s it is in the case-in- admissible to iden inquiry gather sufficient data is Supreme principal chief. The Court’s two (i.e. record-keeping). tify the defendant addressing cases midstream Miranda occurred, Here, support no documentation compel our conclusion that warnings both were ing our conclusion Lopez’s statements must be post-warning investigatory interrogation. part of an Seibert, suppressed. Compare 542 U.S. at Lopez’s initial statements resulted from 611-12, (focusing on 124 S.Ct. 2601 wheth biographi interrogation,” a “custodial “effective”) warning er midstream booking questioning subject cal to the ex Elstad, 470 at (plurality opinion), with U.S. ception; consequently, his Miranda whether the (analyzing 105 S.Ct. 1285 police actually implicated were before voluntary, an inquiry latter warning. police read Because the did the taint of the earlier based on whether Miranda not administer the compelled dissipated through questions, these initial answers are circum passing changed of time or compelled” and “excluded at “presumed stances). Oregon in trial in case chief.” the State’s 298, 317, 105 In Court ad- Elstad, (1985). technique where- dressed an 84 L.Ed.2d Avery defendant’s motion to reasoning The Court denied the 7. We extend the in did evidence, police in holding outside of the station that because suppress location unpublished opinion, Torres, States v. Garcia- suspect had reason to officer no Cir.2001). Fed.Appx. card, possessed a fake ID the re- defendant Garcia-Torres, produced a fake reasonably likely quest to elicit an was “not requested card after the officer identification incriminating response.” Id. at 299. Terry pursuant stop. ato valid identification in the first police purposefully interroga situation is whether it would be reasonable ted an suspect, unwarned then apprised to find that the warnings could function her of her rights, finally ‘effectively’ as requires.” Sei asked similar again.8 Specifical bert, (em U.S. at 124 S.Ct. 2601 ly, mother, the defendant 12-year- whose added). phasis inquiry effectiveness old son suffered from cerebral palsy and focused, turn, in on whether sleep, died prosecution feared “had a real choice about giving an admissi chose to conceal the death burning the ble statement at juncture.” Id. “For family’s mobile home and incinerating the the warnings unless place could a suspect body. appearance To avoid the that the just who has been interrogated in posi son had been unattended, left the defen tion to make such choice, an informed arranged dant Rector, for Donald a men there is practical no justification for ac tally ill teenager living with the family, to cepting the formal warnings compliance stay in the house. Donald then died Miranda, with or for treating the second days later, fire. Five questioned stage the interrogation as distinct from Seibert a hospital. specific On instruc first, unwarned and inadmissible seg tions headquarters, the investigating added). ment.” (emphasis Id. plural police officer refrained from giving Mi ity believed that the warnings in Seibert’s randa warnings when he first interrogated operate case did not effectively and identi Seibert. After more than 30 minutes of fied factors, five infra, discussed that must questioning, during which time the officer analyzed to ensure that a warning such repeatedly referenced death, Donald’s Sei in every effective situation where bert admitted that she knew that Donald administer Miranda mid-interrogation.9 would die the fire. Seibert then re 615, 124 Id. at S.Ct. 2601. ceived a 20 minute coffee break. Upon return, her the officer read her Miranda aIn opinion, concurring Justice Kenne warning, turned on a tape recorder, and dy similarly disproved of two-step pro proceeded then to ask questions. the same cess at issue noting that it Seibert ultimately confessed to Donald’s would “allow police to undermine [the Mi death. randa meaning effect,” rule’s] and but re justices

Five agreed jected the suppress plurality’s both test and instead lim pre- the and statements, ited critique to two-step situations while dissenting justices four thought where both the “technique is used in a calculat permissible statements were way ed the under undermine the Miranda warn earlier, Court’s voluntariness ing.” test Id. espoused at 124 S.Ct. 2601 (Kennedy, in Oregon v. Elstad. J., Of justices the five concurring). According to Justice Ken who result, reached the same a plurality of nedy, any statements resulting from an four framed the underlying issue as fol- first, intentional ask question later tech lows: the “threshold question in [such nique a] must be suppressed.10 In all other 8.As Fourth explained, the By an initial 9. applying instance, the every test in the preceding statement warning the Miranda plurality opinion in Seibert the limits Elstad "presumed involuntary.” Consequently, the holding to its facts. initial, issue is "whether those unwarned statements rendered involuntary the state 10. Resolution of police whether the purpose- ments made receiving [] waiving and after fully sought to evade unnecessary, Miranda is rights.” Mashburn, Miranda United States v. Lopez’s as statements are inadmissible even if (4th Cir.2005). our conclusion compel interrogation pez’s the volun- focus on its cases, Elstad—with ineffective, that was and post-Mi- warning that the and pre- the volun both tariness post-Mi of a the result thus to con- continue his statements were randa dissenting questioning. of sequence The four single, con unwarned analysis. the trol of a rejected application in Seibert justices factors, fifth third, and fourth Elstad, find- simply applied and test new our determination inform particular, suffi- were statements find that the ing ineffective, as warning in this case was the Lopez’s suffi voluntary. We ciently interroga- the officers conducted the same under both excluded must be statements any break without the same location tion in Elstad.11 and Seibert questions. of the two sets between the plurality, to the Seibert According break continuous—the interrogation a determining whether for relevant factors time took it amount only lasted the be ef- warning could midstream the Mi- to read investigators (1) and de- completeness are: fective situation, ad- In such warning. question- round of in the first involved tail could of the Miranda ministration of the (2) content overlapping ing; meaningful under- to a not lead made before statements answering the he could cease standing that (3) setting of the timing and warning; Lopez’s time. point in at that (4) continuity of interrogation; the exact implicates interrogation thus interrogations; during the personnel Supreme Court by the described problem interrogator’s (5) to which degree place warnings could “Unless Seibert: con- as round the second treated interrogated just who has been a suspect at 542 U.S. the first. with tinuous make position [] in a informed The results 2601. 615, 124 S.Ct. justification choice, practical there is no the subse- inform inquiry effectiveness compli- warnings as accepting formal question [to “If analysis: yes quent Miranda, treating or for with ance up the take court can warning], a effective as distinct stage of second voluntary waiver issue standard first, inadmissible unwarned from the no, statement; subsequent if voluntary at segment.” of ade- for want is inadmissible added). no break There (emphasis the ear- warnings, because quate any effort questioning realistically are statements and later lier Lopez understood to ensure se- single, unwarned parts seen against be used could not prior Id. questioning.” quence of any him; we believe consequently, added). analysis An (emphasis have would Lopez’s situation surrounding Lo- of events sequence the (10th Carrizales-Toledo, 454 F.3d implement a purposefully police didn’t adopt Cir.2006) problem with (describing the strategy. question first-warn later approach); United Kennedy's ing Justice divided 4-1-4 Supreme Court 11. Because 399 F.3d Rodriguez-Preciado, v. States confusion been some there has J., Cir.2005) (Berzon, dissent 1139-42 concurring plurality about whether adopt not should how a court ing) (describing have assumed circuits Most opinion controls. might instead opinion Kennedy’s Justice operates Kennedy's concurrence that Justice test). doWe plurality's apply the to choose though others controlling precedent, as the regard because this issue need resolve his concur- whether doubts about have raised Lopez’s applicable framework less of narrowest actually represents concur rence suppressed. must be See United grounds for decision. viewed the part bedroom, two series as none of which relate to the effec- sequence. of one tiveness of the Miranda warning with re- gards to the earlier statement. Perhaps, The first second factors of plu as Officer LaGrange at the suppres- stated rality’s support test also finding our hearing, sion Lopez stopped speaking be- the warning was While ineffective. cause Bernal-Bajo giving “was him the exact did not overlap, post- look” and trying to intimidate him. JA 74. Miranda question resulted from the The facts of this distinguishable case are knowledge gleaned during ques the initial from the two cases—both which discuss tioning—’that Lopez had driven from Mex the issue of waiver and not effectiveness13 (i.e. Kentucky ico to country from a serv —upon which the dissent relies for the ing as a cocaine conduit a state where proposition that the invocation of the right no cocaine produced), pickup truck, via to silence necessarily indicates that during is, the preceding week. That defendant understood rights. those See question regarding the transportation of Allen, United States v. anomalous, cocaine was not might which (8th Cir.2001); Gibson, Pickens v. support finding that the warning was ef Cir.2000). In finding fective, but logical question was the next waiver, voluntary the Eight Circuit in Al- based on the earlier statements. All five len noted that the defendant “initiated the factors—and particularly three, factors request to speak” officer, with the had four and five—demonstrate that the Mi been warned of his rights times, four randa warning was ineffective. As a re had specifically “indicated that he under- sult, Lopez’s admission must be sup rights]” stood prior [his confessing. Id. pressed under Seibert’s effectiveness test. hardly case is analogous to pres- Our dissenting colleague suggests that ent situation. In the instant Lopez’s stop talking decision to after his received warning only once and did not confession revealed that initiate any the interactions with the “by effective: invoking right to silence” investigators; moreover, the record is am- conveyed defendant his understanding bivalent as to whether he even understood of his rights “clearest, rights. those The dissent’s use of retro- most unequivocal way possible.” Op. Dis. spection to find an effective warning is also at 432. As noted supra, the record is directly contrary to Court’s ambivalent whether the admonition that courts “presume should specifically invoked his to silence as that a defendant did not waive rights an exercise of his or mere- [and prosecution’s that] burden is ly indicated that he did not want to speak great” to demonstrate such a waiver. further to investigators.12 It is not diffi- Butler, North Carolina U.S. cult to imagine reasons why Lopez 373, (1979). 60 L.Ed.2d 286 ceased he talking Pickens, taken to the the Tenth emphasized Slaughter, Officer 12. testimony whose the dis- 13. As supra, discussed plurality the Seibert reliable, trict court most simply found stated explained ineffective, warning that where a is Lopez that "Mr. stated that he did not wish to the defendant cannot waive rights. his say anything investigators” to and that he Hence, the issue of voluntariness does not “basically said he didn’t say any- want to 612, arise. See 542 U.S. at 124 S.Ct. 2601 thing.” JA Testimony by 60-61. Officer La- (describing how voluntariness only issues are hand, Grange, on the other indicated that the effective). addressed where the said, no, [Lopez] just "basic was he he wanted to attorney.” consult an with JA 74. ability his knowledge to of essential dant had, to his prior defendant the confes- of his and the nature understand his understood that he sion, demonstrated ” abandoning them.’ of consequences to initial refusal defendant’s] “[the rights: Moran 613-14, 124 2601 (quoting S.Ct. at request and his statement make a 412, 424, Burbine, 106 S.Ct. 475 U.S. ... both he understood attorney indicate (1986)). To hold 1135, L.Ed.2d 410 89 right to of his consequences nature by over substance elevates form otherwise to counsel.” right his silent remain integrated and of spates “two treating (internal quota- 996 Pickens, at in as questioning conducted proximately case, Lo- omitted). the instant In tions subject to inde interrogations dependent inter- the occurred pez’s confession before Mi simply because evaluation pendent purportedly the defendant in which action them formally punctuate warnings rights. of his understanding indicated 614, 124 S.Ct. 2601. Id. at the middle.” defen- at the looking important, Equally posi the adopting dissent’s Additionally, (which he stop speaking decision dant’s important constitu undermining risks tion the rather than the bedroom in conveyed infer retrospective rights through tional circum- different under kitchen—i.e. has Court ences, Supreme a result the be- stances) that is not an issue presents of in the context Mi rejected previously effec- is, thrust of the the That fore us. 91, Illinois, 469 U.S. Smith v. randa. Cf. the on whether focuses inquiry tiveness (1984). 490, 488 L.Ed.2d 98, 83 105 S.Ct. juncture” [the] “at choice had a Seibert, 611- statement, 542 U.S. at statement Lopez’s whether Court’s not on under suppressed 124 S.Ct. Elstad,14 retrospec- As Oregon casts in opinion behavior later earlier defendant’s explained, at the of mind in justices Seibert dissenting his state insight into tive suspect’s] con- first Had “if [a that requires the statement. Elstad time of in- involun specifically have been bedroom is shown statement fessed after further whether examine to silence court must tary, voked passing perhaps through the then by police, dissipated taint explanation of slightly clos- Sei change a circumstances.” would be a in issue time or effectiveness (“In (citing bert, 124 S.Ct. 124 S.Ct. at at id. U.S. er call. See 1285) Elstad, at to see Elstad, U.S. unreasonable it was not added). requires Elstad thus the station at (emphasis questioning occasion actually is prior a markedly different “[w]hen presenting as house between con passes coerced, time that warn- the Miranda ... [and] experience interroga place in fessions, change presenting made sense have ings could identity of tions, change up on to follow whether choice genuine on all whether admission.”). interrogators bear in this But the earlier the second over into carried has literally coercion given warning was the Miranda 310, 105 Elstad, at confession.” a situation questioning, middle Lopez’s con- reviewing When S.Ct. 1285. a defen- ‘deprive “likely to mislead curring). In con dissenting justices in Seibert 14. The four should missibility postwarning analy Oregon v. Elstad to adhere tinued principles governed to be addition, continue Kennedy wrote Justice sis. Here, arguendo that we assume Id. Elstad." resulting any statement Seibert deliberately seek government did evading process aimed two-step deliberate Miranda, would thus Elstad and that evade suppressed. must be Kennedy's concurrence. Justice control under (Kennedy, J. con- U.S. at 430

fession, all three of suggest these factors received Miranda warnings, should be finding that the suppressed. coercion has carried over. I agree with the majority supra, As discussed there change was no defendant’s statements of when he arrived at the place the time or of the house and how interrogation, got he there products were the identity Further, custodial interrogators. interroga of the tion subject and not voluntariness, to the determining “booking excep when “the find 1 However, tion.” evaluating the book er of fact must examine the surrounding ing exception, join I do not majority’s circumstances and the po entire course of focus and obiter regarding dictum lice respect conduct with to the heightened importance of a stationhouse evaluating the voluntariness of his state location and recordation. In regard, I 318, ments.” Id. at Here, 105 S.Ct. 1285. reiterate that the booking exception ap there is insufficient evidence in the record if, plies under totality of the circum was aware that his earlier con stances, police activi and/or fession would not be against admissible ties are “normally attendant to arrest and him, nor do the suggest circumstances custody” and are “reasonably likely to the second confession was separate from elicit an incriminating response from the the first any way.15 confession in suspect.” Innis, Rhode Island v. 446 U.S. Accordingly, Lopez’s 291, 301, 1682, 100 S.Ct. 64 L.Ed.2d 297 statements must be suppressed. (1980). I respectfully majori from the dissent IV. ty’s de novo fact-finding and suppression reasons, For the foregoing the district of Pacheco-Lopez’s group second of state opinion REVERSED, court’s is and the ments. Regarding this “Miranda-in-the- defendant’s motion to suppress GRANT- issue, middle” majority misapplies, ED. both legally and factually, Missouri v. Sei bert, 600, 542 2601, U.S. 124 S.Ct. 159

GRIFFIN, Judge, dissenting. (2004) L.Ed.2d 643 Oregon Elstad, I concur in the result majority’s 470 U.S. 105 S.Ct. 84 L.Ed.2d ruling that two of (1985). defendant Pacheco-Lo- 222 First, regarding legal pez’s statements, initial made standard, before he because there was not an opinion Supreme 15. clearly Court has (1986). distin- 89 L.Ed.2d Where "the guished (1) effectively between “giving the presence without continues warnings getting and [2] a waiver.” attorney taken, of an and a statement 608-09, 542 U.S. at 124 S.Ct. 2601. The two heavy government burden rests on the are pretermit not the same. We the issue demonstrate that knowingly regarding application of the standards for intelligently privilege against waived his “getting a waiver” of the Fifth and Sixth self-incrimination to retained or rights protected by Amendment Miranda. Miranda, appointed counsel.” 384 U.S. at high court has set a 86 S.Ct. 1602. standard proof for the waiver of constitutional view, my 1. rights, responses defendant’s requiring standard to the that courts " first 'indulge asking should two every him presump- for his reasonable name ("where against lived”) tion they address waver’ of fundamental are constitu- covered Zerbst, rights.” by tional "booking exception.” Johnson v. Pennsylva- See 458, 464, Muniz, 582, 601, 58 S.Ct. nia v. L.Ed. U.S. 110 S.Ct. (1938). “Doubts Brennan, must resolved in (opinion favor of L.Ed.2d protecting J.) (1990). the constitutional claim.” Michi- To the majority extent Jackson, gan 625, 633, otherwise, U.S. rules respectfully I dissent. of a the deliberate use Seibert, involving cases v. and in Missouri the Court of strategy calculat- rationale, two-step a agree on not did five Justices of Mi- requirements the ed to evade may be viewed the Court of holding “the Kennedy provided thus randa. Justice Members by those taken position as Elstad, but depart vote to the a fifth on judgments concurred who set out deliberate- police the only where v. United grounds... Marks narrowest until warnings 990, ly to withhold 51 188, 193, 97 S.Ct. States, 430 U.S. secured. has been a confession (1977) v. Geor Gregg (quoting L.Ed.2d 260 of Miranda 2909, initial violation the 15, Where 153, 96 S.Ct. n. 169 428 gia, U.S. strategy of a deliberate Stewart, part not (1976) by (opinion L.Ed.2d 859 49 warnings, appears Elstad the JJ.)). undermine Stevens, Powell, and Seibert. to have survived “narrowest the Marks Applying court the district rule, present that Seibert would hold the I grounds” findings regarding Elstad, an factual but creates not make did not overrule does and pre- of police voluntariness defendant’s cases in which it for exception to pursuant to El- of Miranda safeguards to evade intend rule whether stad, similarly o two-step strat Elt and employing deliberately by by to evade Miranda intended so held. circuits have See sister egy. Our two-step strate 528, Carter, deliberately employing 535- F.3d 489 v. States United Street, Mi defendant’s and, if atewhether Cir.2007); v. (2d gy, States United str (11th Cir.2006); MiBec ause warnings were 1312-13 472 F.3d I would inadequate, appeal 463 F.3d record on is Courtney, v. States United findings on hearing v. (5th Cir.2006); States remand United (9th See material fact. disputed issues of Williams, Cir. these F.3d Stewart, 1161-62; Kiam, Williams, 432 F.3d 435 F.3d at v. 2006); States Elstad, 470 also (3d Cir.2006); 1091-92. See and United at 388 F.3d 524, 531-33 1285; United States 105 S.Ct. Stewart, at U.S. 388 F.3d v. States (3d Cir.1998); 150, 158 Cir.2004). Indeed, Kennedy, 164 F.3d Tyler, who v. Justice McCurdy, only, Mis judgment, and United concurred in Cir.1994). 1111, 1118 fifth vote Seibert, provided souri apply the reversal, continue would clearly law, majority Regarding ab v. Elstad of Oregon test voluntariness (plurality Seibert by applying errs showing. this sent ab factors “effectiveness” opinion) (“[t]he admissibility that the finding factual of a sence continue statements should postwarning safe evade the deliberately attempted of Elstad principles governed limita Without Miranda. guards two-step strategy the deliberate unless Kennedy’s concur in Justice set forth tion J., (Kennedy, concur employed.”) opinion is plurality rence, Souter’s Justice ring). Jus of four views than the nothing more itself, plurality in Stew- the Seibert Thus, by stated tices. As Seventh All binding. art, precedentially opinion at 1090: have addressed circuits our view, however, sister Kennedy’s In Justice majori Nonetheless, the agree. this issue in time circum- change inquiry into if it opinion Souter’s Justice ty applies prewarning between stances restriction without precedent were he called statements—what postwarning More- Kennedy’s concurrence. only Justice necessary steps”—is “curative 432 juncture? they that rea-

over, majority impermissively has en- ment at Could sonably convey which is that he could choose to factfinding, in de novo nor- gaged talking court. if he had talked earli- province stop trial even mally er? majority to Finally, refuses acknowl 611-12, 124 542 U.S. at 2601. S.Ct. factually is present that case

edge Oregon from both v. Elstad distinguishable case, present In the the answer to the Missouri v. Seibert. Elstad Sei “yes.” to be questions appears above in were which the defendants bert cases is un majority contends that the record as a inculpatory evidence result of revealed Pacheco-Lopez clear regarding whether interrogation conducted before a custodial right merely his to stat invoked silence rights. of their Miranda administering speak ed that he did not wish to to cases, subsequently In both the defendants However, Court further. has after reiterated the earlier information re that directed invocations of Miranda However, warnings. in ceiving Miranda rights broadly, and interpreted that the defendant invoke his neither case did upon right a defendant’s assertion of the to instances, to In such right remain silent. any remain “in manner” questioning silent obviously it difficult to determine wheth is immediately must cease. Miranda v. Ari an er the accused made informed choice to zona, 444, 1602, 436, 86 S.Ct. 16 he his confess or whether believed second (1966). Therefore, 694 L.Ed.2d of the earli confession was a continuation present unnecessary it appears to Here, er, improper interrogation. unlike conduct a the circum searching review of Elstad, Patrice Seibert or Michael defen stantial evidence to whether determine Pacheco-Lop his Pacheco-Lopez right dant exercised to warnings were effective to receiving rights. silence Indeed, by invoking right his after ez.2 opinion in Seibert sets forth plurality silence, Pacheco-Lopez con trial factors to be evaluated courts clearest, veyed understanding question of the when the factual effective unequivocal way possible most that he un warn ness of “Miranda-in-the-middle” right derstood his to do so. See objective The ultimate ings is doubt. is Allen, 741, States v. 247 F.3d to determine whether Miranda warn Cir.2001) (noting that defendant’s invoca fact, were, in As ings effective. Justice right “strong tion of his to counsel evi stated: Souter that dence” defendant understood his issue interrogators rights), The threshold when grounds by vacated on other and warn later question first is thus U.S. 153 L.Ed.2d 830 (2002); Gibson, it would be whether reasonable to find see also Pickens v. (10th Cir.2000) warnings these circumstances the (citing Cooks Ward, “effectively” could function 1288-89 warnings requires. Could the effective- Cir.1998))(noting that invocation of a Mi ly right advise the that he had a real demonstrates a defendant’s giving understanding right).3 choice about admissible light state- minimum, However, validly 2. At trial court should silent. make remain in order to findings silence, on factual these issues before our right waive one’s one must first -appeal. review on right. understand v. Or- Sanchez-Llamas egon, 548 U.S. majority 3. The asserts that these cases are (noting "a L.Ed.2d defendant's waiv- they inapposite question because decided rights voluntary, er of his Miranda must be right of whether the defendant his waived inculpato- his silent, remain right to of his invocation his invoked and then ry post-Mi- Pacheco-Lopez’s suppression arise whether silence, might question only arise can randa statements case- ill-fitting understood Pacheco-Lopez of application perfunctory admitting factual realities to the the statements regard made when he law without here, when, But guilty this case. conduct. of his warning, and single a there was of “the thrust argues majority right remain invoked his the defendant on wheth- focuses inquiry the effectiveness reason- warning, the this most silent ‘at [the] a choice had the defendant er under- that defendant able inference statement, whether the not of the juncture’ silent. to remain right his retrospec- stood cast behaviors later defendant’s mind state of his insight into tive reasons, respectfully I dissent. For these This of the statement.” time order court’s the district I vacate would majority’s misunderstand- underscores a new trial court for to the and remand facts, differs case how, this on its ing of findings and factual hearing suppression Elstad. The and Seibert critically from of informed resolution for our essential fac- the Seibert analyzing of very purpose I issues. would and Seibert Elstad evidence, circumstantial is to marshal tors defer to but role of factfinder assume questioning; of the location as: such in this abilities superior court’s the trial warnings; between elapsed time regard. to ascer- in order questioners, change defendant, hypotheti- or a whether the tain able would be proxy, reasonable

cal regarding choice an informed

make ap- Under silent. to remain right BROWN, Petitioner- A. Mark what attempt approximate we proach, Appellant, only be- understand could defendant know what do not typically we cause present understand. did

defendant BRADSHAW, Warden, Margaret into however, window offers that rare Respondent-Appellee. to an- us mind that allows defendant’s a No. 06-3482. Apparently, question. this latter swer Pacheco- Appeals, because was effective of Court Thus, right silence. Lopez invoked Circuit. Sixth to substitute to be no reason appears there 29, 2008. April Argued: for this direct assumptions circumstantial 26, 2008. June and Filed: Decided evidence. Banc Rehearing En Rehearing plausible a might have My colleagues 17, 2008. Sept. Denied in- never Pacheco-Lopez had argument if Similarly, to silence. his right voked received second had 89 L.Ed.2d i.e., product intelligent, ‘the

knowing, ad- cases (1986)). while these Accordingly, ... made with choice free and deliberate waiver, hold- these larger issue dress the of both nature awareness full subsumed regarding the applicable ings consequences are being abandoned of under- evidence J., what constitutes ") (Ginsburg, issue con- it.’ to abandon decision rights. Burbine, standing of one's Miranda curring) (quoting Moran

Case Details

Case Name: United States v. Pacheco-Lopez

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jun 26, 2008

Citation: 531 F.3d 420

Docket Number: 07-5408

Court Abbreviation: 6th Cir.