Post-Miranda Warning Admission

The United States Supreme Court addressed this issue in Oregon v. Elstad (1985) 470 U.S. 298. In Elstad, police officers went to the defendant's home and questioned him about a burglary without first reading him the Miranda warnings. (Elstad, at p. 301.) After he admitted being present at the burglary, the officers took him to the police station. One hour later, the officers informed him of his Miranda rights. He waived those rights and gave a full statement detailing his role in the crime. (Elstad, at pp. 301-302.) The Court held that "though 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 p. 309.) "Absent deliberately coercive or improper tactics in obtaining the initial statement," the court found that "subsequent administration of Miranda warnings . . . ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." (Id. at p. 314.) "The essence of voluntariness is whether the government obtained the statements by physical or psychological coercion such that the defendant's will was overborne." (United States v. Rith (10th Cir. 1999) 164 F.3d 1323, 1333.) The Supreme Court revisited the issue in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert). Unlike Elstad, where the officer's initial failure to warn was an oversight, in Seibert, the police "used a two-step questioning technique based on a deliberate violation of Miranda." (Id. at p. 620 (conc. opn. of Kennedy, J.).) The interview strategy was based on "a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda, the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time." (Id. at p. 604.) In Seibert, a plurality of the United States Supreme Court reasoned, "The threshold question in this situation is whether it would be reasonable to find that the warnings could function 'effectively' as Miranda requires. There is no doubt about the answer. . . . When the warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and 'deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.' And it would be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle." (Seibert, supra, 542 U.S. p. 601.) Justice Kennedy concurred, reasoning that if the interrogators deliberately employ the two-step strategy, the trial court must suppress postwarning statements unless the interrogators take curative measures to apprise the defendant of his rights. If the two-step method is not deliberate, the postwarning statements are admissible if voluntarily made. (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.); see also United States v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158 concluding that Justice Kennedy's concurrence in Seibert is the court's holding because it is narrowest grounds with which a majority of the court would agree..) Deliberateness may be found if "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." (United States v. Williams, supra, 435 F.3d at p. 1158.) Objective evidence includes "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 p. 1159.)