Case o' The Week: Ninth Tosses the Cat out of the Bag, Williams and mid-stream Miranda warnings

The old "cat of the bag" analysis questioned the viability of post-Miranda confessions when custodial interrogation had already produced statements. That line seems doomed with developing Miranda law out of the Supreme Court; specifically Elstad and Seibert. In Williams, the Ninth wrestles with how to interpret the "fractured" and "splintered" Supreme Court plurality decision in Seibert. United States v. Williams, __ F.3d __, Slip. Opp. at 1181 (9th Cir. Jan. 30, 2006), decision available here. The resulting rule is not exactly a model of clarity. Moreover, as discussed below, it incorporates a test that seven Justices seem to have rejected . . . .

Players: The ubiquitous Carl Gunn, AFPD CD Cal, slugging away again in the Ninth.

Facts: In a false passport case, Williams was interrogated in a custodial setting and made some damning statements. Slip op. at 1186. He was then Mirandized, and made more bad (written) statements. Id. at 1186-87. The district court suppressed the first, oral statements but admitted the latter statements at trial. Id. at 1187. After the trial, the Supreme Court decided Missouri v. Seibert, 542 U.S. 600 (2004) – a decision on midstream Miranda rights that is a mess of concurring and plurality opinions.

Issue(s): 1. Splintered opinions: How does an appellate court interpret a fractured Supreme Court decision? 2. Post-Seibert rule: What is the test for mid-stream Miranda cases after the Supreme Court’s decision in Seibert? 3. Deliberate Two-Step Inquiry?: “How [should a court] determine whether an interrogator used a deliberate two-step inquiry?” Id. at 1199.

Held: 1. Splintered opinions: “[W]hen 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 the position taken by those Members who concurred in the judgments on the narrowest grounds.” Id. at 1197 (quoting Marks). 2. Post-Seibert Rule: “[W]e hold that a trial court must suppress postwarning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warning – in light of the objective facts and circumstances – did not effectively apprise the suspect of his rights.” Id. at 1198 (emphasis added). 3. Deliberate Two-Step? “[I]n determining whether the interrogator deliberately withheld the Miranda warning, courts should consider 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 . . . Such objective evidence would include the timing, setting, and completeness of the prewarning interrogation, the continuity of police personnel, and the overlapping content of the pre-and postwarning statements.” Id. at 1200.

Of Note: Good luck figuring this case – and the resulting test – out. A more detailed analysis was undertaken by Judge Berzon in her dissent in United States v. Rodriguez-Preciado, 399 F.3d 1118 (9th Cir. 2005). In Rodriguez-Preciado, Judge Berzon carefully tallies the votes of the plurality and concurring Justices for the various issues at play in Seibert. She persuasively argues that the “subjective intent” of the interrogator was a factor rejected by seven Justices. Id. at 1141. Oddly, the Ninth nonetheless seems to adopt exactly that factor in Williams – looking at whether the two-step interrogation process was deliberately used by the interrogator. Hence, the Ninth appears to have adopted a new test supported by one Justice, (Kennedy) and rejected by seven.

How to Use: Although the defense bar won’t love this new “deliberate two-step” test, the new standard is so confusing that it’s bound to botched by the cops. Williams is replete with good language disfavoring the two-step interrogation process. For example, “Once a law enforcement officer has detained a suspect and subjects him to interrogation – as was the case in Seibert and is the case here – there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after the suspect has confessed. Instead, the most plausible reason for the delay is an illegitimate one, which is the interrogator’s desire to weaken the warning’s effectiveness.” Id. at 1201 (emphasis in original).

For Further Reading: Before he was a judge, Professor Willie Fletcher often railed against the trend of increasingly fractured Supreme Court decisions. In a Washington Times editorial, a columnist blames these complex new opinions on too many law clerks. See editorial here. Whatever the cause, Seibert is a textbook example of the downside of plurality decisions. The Harris mand-min decision is another good example.

AFPD Carl Gunn is obviously an expert and great resource on Seibert issues. R&W attorney Steve Koeninger, of the ND Cal FPD office - is another. He's helped litigate the stuffing out of Seibert in San Francisco, and quickly caught the Williams' tension with Berzon's dissent described above.

Steven Kalar, Senior Litigator; Steve Koeninger, R&W Attorney, N.D. Cal. FPD. Website available at www.ndcalfpd.org