Case o' The Week: Ninth Won't Dance Alaskan Two-Step -- Barnes and Seibert two-step interrogations

Who can resist the sweet allure of the Seibert two-step, an effective interrogation dance that leads to full confessions and meth convictions?

The Ninth, thankfully. United States v. Barnes, 2013 WL 1668966 (9th Cir. Apr. 18, 2013), opinion available here.

Players: Per curiam decision by Judges Hawkins, McKeown, and Bea.

Facts: The FBI recruited a snitch to investigate a drug trafficker. Id. The snitch negotiated for and got meth from Barnes at the Anchorage airport, on the premise that the snitch was going to transport the drugs to this trafficker. Id. The FBI didn’t get to the airport in time to observe the transaction, (!?!), but recovered the meth from the snitch. Id. Months later, the FBI had Barnes’s parole officer bring him in (the terms of Barne’s parole required him to attend meetings). Id. Usually, this parole officer spoke to her charges through a lobby window. This time, Barnes was searched and brought into the building through a locked door. Id. When he got to the officer’s office, Barnes found FBI agents. They interrogated him without advising him of his Miranda rights. Id. The agents accused Barnes of the meth sale and played the recorded conversation between Barnes and their snitch. Barnes admitted he remembered the transaction. Id. The agents then Mirandized Barnes, who waived and confessed. Id. Barnes’s motion to suppress was denied and he was convicted at trial. Id. at *2.

Issue(s): “When a law enforcement officer interrogates a suspect in custody but does not warn the suspect of his Miranda rights until after he has made an inculpatory statement, the inquiry is whether the officer engaged in a ‘deliberate two-step’ interrogation. . . . Such an interrogation occurs when an officer deliberately questions the suspect without Miranda warnings, obtains a confession or inculpatory admission, offers mid-stream warnings after the suspect has admitted involvement or guilt, and then has the suspect repeat his confession or elaborate on his earlier statements.” Id. at *3 (internal quotations and citations omitted).

Held: “Because the meeting was a custodial interrogation, Miranda warnings were required to allow the prosecution to use Barnes’s statements at trial. Engaging in a ‘two-step interrogation’ prohibited by . . . Seibert . . . the agents deliberately delayed giving warnings to induce Barnes’s cooperation in an on-going investigation. Although the target of the agents’ inquiry was ostensibly another suspect, the questioning necessarily elicited information that incriminated Barnes. The mid-stream warnings provided after Barnes incriminated himself were too little, too late. The . . . failure to suppress the statements was in error. . . . Because the error was not harmless beyond a reasonable doubt, we reverse Barnes’s conviction.” Id. at *1.

Of Note: Much of value in this opinion for Miranda fights, but of particular note is the Court’s rejection of the Agents’ claimed intent as a rationale for this two-step search. The FBI agents complained that they didn’t really mean to arrest Barnes – they just wanted to turn him into a snitch after questioning him. Id. at *4. The Court is unimpressed. “Whether the agents planned to arrest Barnes forthwith or to turn him into a cooperating witness is not the bellwether for administrating Miranda warnings. The simple reason the agents delay was so that Barnes would talk to them about his role in the drug transaction. It is the agents’ interrogation of Barnes to this end in the custodial setting that triggers the need for Miranda warnings, where, as here, the suspect’s statements are later proffered against him at trial.” Id. at *4.

How to Use: Much to admire in the Court’s Seibert analysis, but Barnes’ “custody” holding is equally useful. Id. at *2. The Court works through the five Kim factors and finds that this compelled constituted, “custody.” Id. at *3. A holding worth remembering when federal probation officers “collaborate” with cops and agents.

                                               

For Further Reading: Be It Resolved: Article II can’t seek death, and Article III can’t impose death, if Article I won’t pay for the defense of a death case. Exhibit A: Tsarneav. Exhibit B: Suleiman Abu Graith. 

  A debate coming soon to a district court near you. See ABC News Article here. 

“Two Step” Image from http://twostepvictoria.com/
 Image of Dzhokhar Tsarneav from http://www.sbs.com.au/news/article/1758782/Boston-bombing-Dzhokhar-Tsarnaevs-Twitter-account/

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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