US v. Rodriguez-Preciado
No. 03-30285 (3-4-05). Seibert is the interesting issue in this appeal. The defendant returns to his motel room, where the co-defendant had already invited in the police after they knocked. The police advised the defendant they had consent to be there, and, oh by the way, have you any drugs on you? The defendant said “yes” and pulled out a small baggie of cocaine. He was arrested and read his Miranda rights. Questioning then takes place, and is resumed with some of the same police the next day. Close to the start of the questioning the second time, the defendant is given a Miranda card and readvised of his rights. He still talks. The 9th easily finds that the first questioning wasn’t custodial, and so no Miranda violation. As for the second, the majority concludes that the 16-hour lapse didn’t make Miranda stale, and that the totality of circumstances were such that questioning could continue. Seibert, in its view, was inapposite because Miranda was read first. Berzon, in dissent, questions this. She does a careful analysis of Seibert, which is quite good, and concludes that the Seibert test is the plurality’s focus on whether the suspect thought of the circumstances and whether it was for all purposes the same questioning session. She reads Kennedy’s concurrence as being without support from most other Justices, as the dissenters want to retain Elstad and the plurality wanted to overrule or refine it. In this context, she would suppress the questioning after the regiving of Miranda because the officers were the same, it was effectively the same time and same place, and the officer went over the questions again, and so the Seibert prophylactic wasn’t followed. Berzon looks to Seibert policy over a formalistic no Miranda warning and then Miranda warning.