The Supreme Court brings an end to the "end run" around Miranda.

Since Miranda v. Arizona, (1) the U.S. Supreme Court has remained steadfast in its position that for a defendant to waive the privilege against self-incrimination, the government must establish that the defendant did so knowingly, intelligently, and voluntarily. Miranda held that any statement arising from custodial interrogation of a suspect is presumed to be involuntary and, therefore, inadmissible unless the police first provide the suspect with four specific warnings: the right to remain silent; that any statements may be used against them; the right to have an attorney present during questioning; and that an attorney will be appointed if he can not afford one. (2) Notwithstanding these warnings, the Court still could find the statement inadmissible if the Court concludes that the defendant did not waive those rights knowingly, intelligently, and voluntarily. In June 2004, the U.S. Supreme Court, once again, declared that condition as nonnegotiable when it handed down its decision in Missouri v. Seibert. (3)

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This article addresses the validity of a waiver provided by suspects who have just been subjected to a two-tiered inter-rogation tactic used in Seibert wherein an unwarned interrogation precedes the Miranda warnings and waiver and a confession is obtained. The article also discusses the factors that a court considers when determining whether suspects, subjected to this two-tiered approach, waived their Miranda rights knowingly, intelligently, and voluntarily. Finally, the impact the U.S. Supreme Court's decision will have on the two-tiered interrogation tactic, sometimes referred to as the "ask first, warn later" tactic, is addressed.

Missouri v. Seibert: The Two-Tiered Interrogation Strategy

In Missouri v. Seibert, Patrice Seibert, the defendant, was a mother of five sons, one of whom, Jonathan, age 12, was stricken with cerebral palsy. When Jonathan died in his sleep, Seibert was fearful that she would be charged with negligence once the investigating authorities discovered Jonathan's body covered in bed sores. To avoid criminal culpability, she conspired with her two eldest sons and two of their friends to set fire to their mobile home, leaving Jonathan's body inside. However, she also was concerned with how she would explain leaving young Jonathan alone and unattended.

The answer was to leave Donald Rector, a teenager who was mentally ill and living with the Seibert family, in the mobile home with Jonathan. The medication that Rector was taking usually made him sleepy; therefore, the Seibert family counted on Rector being sound asleep in his bed when they set the fire. To them, the murder of young Donald Rector seemed like the perfect way to destroy any evidence of their neglect of Jonathan. (4)

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Seibert was arrested later for her role in this crime and transported to the police station for questioning. Once at the police station, the arresting officer began to question Seibert without advising her of her Miranda rights and receiving a waiver. The officer who arrested Seibert and interviewed her testified that he purposefully refrained from advising Seibert of her Miranda rights even though he knew he was engaged in a custodial interrogation. The officer "testified that he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given." (5) This was an interrogation technique that the officer had been taught. As a result, he was just "follow[ing] instructions." (6)

The officer testified that after Seibert was brought to the police station, he questioned her for approximately 30 to 40 minutes prior to advising her of her rights under Miranda. Thus, the questioning was "outside of Miranda." During this time, Seibert admitted that "she knew that Donald [Rector] was meant to die in the fire." (7) Seibert was then afforded a 20-minute coffee and cigarette break. (8) The second round of interrogation was conducted by the same police officer and in the same room. However, this time, the police officer "gave Seibert the Miranda warnings and obtained a signed waiver of rights from her." (9)

The second round of questioning began by referring to the first round of questioning and those statements obtained "outside of Miranda." Seibert confirmed that during the initial round of questioning, they had been discussing the events that occurred on the day of the fire. Following a few more questions that were rhetorical confirmations of admissions made in the prior unwarned confession, the police officer asked, "[Pa]trice, didn't you tell me that [Donald Rector] was supposed to die in his sleep?"

Seibert answered, "If that would happen, 'cause he was on that new medicine, you know...."

Finally, the police officer asked, "The Prozac? And it makes him sleepy. So he was supposed to die in his sleep?"

Seibert simply said, "Yes." (10)

Seibert was convicted of second-degree murder. The trial court suppressed Seibert's first statement because she had not been advised of the Miranda warnings prior to her custodial interrogation, but allowed her second statement to be used against her, relying on the U.S. Supreme Court's ruling in Oregon v. Elstad. (11) The lower court held that this second round of statements was admissible because she was advised of her rights, and she provided a signed waiver. The Court reasoned that the problem with her unwarned first statement had been rehabilitated by advisement of the Miranda rights prior to her second statement. The Missouri Supreme Court disagreed, concluding that this tactic violated Miranda, and the government appealed to the U.S. Supreme Court. (12)

The U.S. Supreme Court, agreeing with the Missouri Supreme Court, expressed concern about an interrogation strategy that endorses an intentional deprivation of Miranda rights, recognizing that "[a]lthough we have no statistics on the frequency of this practice, it is not confined to ... Missouri." (13) The Supreme Court found that "the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department but by a national police training organization...." (14) Moreover, the justices noted that "[t]his training is reflected in the reported cases involving deliberate questioning after invocation of Miranda rights" (15) and that "scholars have noticed a growing trend of such practices." (16)

Despite what scholars deemed a growing trend, the Supreme Court appreciated the notion that "it is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in breach." (17) Concluding, in fact, that "[m]ost police manuals do not advocate the question-first tactic, because they understand that Oregon v. Elstad involved an officer's good faith failure to warn." (18)

Elstad and Its Evolution into an Interrogation Tactic

The U.S. Supreme Court held that Seibert's waiver was not effective because of the unwarned interrogation just prior to providing her the Miranda rights. The Supreme Court's ruling in Seibert rejected an interpretation of its holding in Oregon v. Elstad which seemed to promote the concept that the "mere recitation of the littany suffices to satisfy Miranda in every conceivable circumstance." (19) The U.S. Supreme Court's holding in Elstad gave rise to what evolved into an approach to conducting interrogations that became somewhat popular and was used in Seibert v. Missouri; that is, holding off on advising suspects of their Miranda rights until after obtaining an incriminating statement or confession. In Seibert, the U.S. Supreme Court took the opportunity to distinguish between the interrogation situation in Elstad and what occurred in Seibert. Concerned with an approach that implicitly encouraged Miranda violations, the U.S. Supreme Court ruled that the practice of conducting two-tiered interrogations, sometimes referred to as "beachheading," (20) violates the purpose of Miranda.

In Elstad, law enforcement officers went to the home of a burglary suspect to take him into custody. The suspect's mother answered the door and led the officers to the suspect, who was in his bedroom. Prior to the arrest, one of the law enforcement officers waited for the suspect to get dressed and accompanied him to the living room while the other officer asked the suspect's mother to step into the kitchen where he advised her that they had a warrant for her son's arrest on a burglary charge. The officer who remained in the living room with the suspect testified that he "sat down with Mr. Elstad and asked him if he was aware why [they] were there to talk to him. He stated that he had no idea...." The officer then "asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house." It was at this point that the officer "told Mr. Elstad that [he] felt [Elstad] was involved in that." Mr. Elstad then "looked at [the officer] and stated, 'Yes, I was there.'" (21)

The suspect then was transported to the police station, waived his Miranda rights, and provided a full confession. Counsel for the defendant, in a motion to suppress, argued that the confession in response to custodial interrogation at the police station was "tainted" by the unwarned statement made in the suspect's living room. Despite compliance with Miranda at the station house, the defense argued that once the "cat [was] out of the bag," (22) any efforts of law enforcement to rehabilitate or save an already tainted admission were point-less. The defense argued that the law enforcement officer's comment that he "felt" the young man was involved in the burglary was an "elicitation" akin to interrogation. Accordingly, the statements, including the station house confession derived from the officer's exchange with the suspect, should be suppressed because Miranda warnings had not been provided during the initial exchange at the house. The lower court held that once the initial Miranda violation occurred, all that followed was tainted, including the station house confession and, therefore, inadmissible. The lower court reasoned that "[r]egardless of the absence of actual compulsion, the coercive impact of the unconstitutionally obtained statement remains because in a defendant's mind it has sealed his fate." (23)

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The Supreme Court agreed with the lower court's recognition that "[i]t is this [coercive] impact that must be dissipated in order to make a subsequent confession admissible." (24) The Court identified two of the most important factors to consider in determining whether that coercive impact has been dissipated as: the "lapse of time and change of place from the original surroundings." (25) The Court stated that it has "never gone so far as to hold that making a confession under circumstances which preclude its use perpetually disables the confessor from making a usable one after those conditions have been removed." (26) Moreover, the Elstad Court continued, "[t]here is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or the deliberate means calculated to break the suspect's will and the uncertain consequences of disclosure of a 'guilty secret' freely given in response to an unwarned but noncoercive question, as in this case." (27)

Based upon this reasoning, the U.S. Supreme Court rejected with the lower court's reasoning in Elstad and found that the purpose of the pause in the burglary suspect's living room, where he first acknowledged being at the scene of the crime, was not to interrogate him but, rather, to inform his mother of the reason for the arrest. The Court characterized the police officer's failure to warn as an "oversight" that "may have been the result of confusion as to whether the brief exchange qualified as 'custodial interrogation' or ... may simply have reflected ... reluctance to initiate an alarming police procedure before [an officer] with [the young man's] mother." (28)

The Supreme Court also found that there was no indication of coercion by the police officers at the time the suspect admitted his presence at the scene of the crime. Further, that the issue of coercion goes to the heart of Miranda. The constitutional protection ensures, that "no person shall be compelled in any criminal case to be a witness against himself." The Court recognized that a "simple failure to administer the [Miranda] warnings" with no indication of behavior on the part of the law enforcement officer that could be interpreted as coercion, compulsion, or an effort to "undermine the suspect's ability to exercise his free will" should not keep out a statement that otherwise is voluntary. (29) "Suppressing post-warning statements under such circumstances would serve 'neither the general goal of deterring improper police misconduct nor the Fifth Amendment goal of assuring trustworthy evidence.'" (30)

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Unintentional Versus Intentional Violations

Seibert presented the U.S. Supreme Court with the opportunity to distinguish between the "simple failure to warn" and the calculated practice of a two-tiered interrogation technique consciously chosen by an officer to disregard the government's obligation to provide Miranda warnings and obtain a waiver. The police officer conducting the interrogation in Seibert admitted that he made a "conscious decision to withhold Miranda warnings." The stated purpose of this practice was to afford the police officer the time and opportunity to establish rapport with suspects in an effort to get them to open up and make admissions or full confessions. According to training, once the suspect has "let the cat out of the bag," the interrogating officer should provide the Miranda warnings and ask the suspect for a waiver. The government argued that once Miranda rights are provided and waived, statements should be admitted in the subsequent prosecution.

The U.S. Supreme Court rejected that line of reasoning in Seibert because its primary concern was one of abuse. Moreover, because the object of such a practice was to "question first, Mirandize later," the Court reasoned that it fundamentally "render[ed] Miranda warnings ineffective by waiting for a particularly opportune time to give them," specifically, "after the suspect has already confessed." (31)

The Court's opposition to a practice that renders the Miranda warnings ineffective is a reaffirmation of the Miranda ruling in 1966 in which it held that "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights violates the Constitution." (32) Once advised, the suspect may waive those rights afforded by Miranda, provided that the waiver is made voluntarily, knowingly, and intelligently.

For law enforcement officers, the threshold problem that the Seibert case presents, aside from eliminating an interrogation tactic endorsed and practiced by many, boils down to a basic question, How can a person voluntarily, knowingly and intelligently waive a right to remain silent when the officer, through deliberate tactics, has already managed to get the "cat out of the bag"?

To give credence to Seibert's second confession, the Court would have had to reject their long-standing holding concern that anyone subjected to custodial interrogation is guaranteed "a full and effective warning of his rights." (33) A practice of condoning the "mere recitation of the [Miranda] litany" (34) is arguably a full warning, but hardly effective, as there exists the genuine fear that "rights declared in words may be lost in reality." (35) This is especially true in a sequential confession case, like Seibert, in which the "earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning." (36)

The U.S. Supreme Court held that the recitation of the Miranda warnings "midstream" did not effectively provide the procedural safeguards it envisioned in Miranda. In doing so, the Court questioned the validity of Seibert's waiver, questioning whether it was made voluntarily, knowingly, and intelligently when Miranda was presented to her after she already had "let the cat out of the bag." After all, could she truly appreciate the fact that the protections afforded to her by Miranda, albeit midstream, provided her with the opportunity to invoke either or both of her rights to silence and to counsel?

In distinguishing Elstad from Seibert with regard to those questions, the U.S. Supreme Court agreed with the Missouri Supreme Court's opinion that the interrogating officer's "intentional omission of a Miranda warning was intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights." (37) Further, the Court went on to say that "[t]o allow the police to achieve an 'end run' around Miranda ... would encourage Miranda violations and diminish Miranda's role in protecting the privilege against self-incrimination." (38)

Post-Seibert Developments

In U.S. v. Stewart, (39) the Third Circuit Court of Appeals remanded a case of a bank robber and directed that the admissibility of the confession be evaluated in light of the Seibert ruling. The circuit court of appeals expressed concern that the confession may be the product of a two-tiered interrogation. As such, the case was remanded to obtain sufficient information to rule on the validity of the defendant's waiver. Additional information was needed regarding the temporal and spatial circumstances surrounding the first and second interrogations before ruling on the admissibility of the confessions. The circuit court of appeals stated that this analysis would involve consideration of "a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their objectives: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." (40)

Impact of Seibert on Interrogation Tactics

As a result of Seibert, law enforcement agencies must reevaluate their interrogation practices to ensure that they are consistent with the Court's ruling. The previously endorsed practice of holding off on providing the advice of rights to an arrestee with a follow-up "warned" interview, viewed by some as an effective interrogation tactic, will lose its effectiveness when the confession is suppressed. Thus, department interrogation practices should continue to reflect the fundamental principles announced by the U.S. Supreme Court in Miranda and its progeny.

Conclusion

As noted by the Supreme Court, the Elstad ruling evolved into an interrogation tactic that encouraged law enforcement to interview an individual who was in custody "outside of Miranda" to pave the way to a full confession. The decision of the Supreme Court in Seibert has rejected expressed opposition to such interrogation tactics, viewing them as an attempt to "achieve an 'end run' around Miranda." However, effective interviewers often will want to establish a rapport with the interviewee before launching into the heart of the interview. Such rapport building, to the extent that it occurs, now must be conducted consistent with the Court's mandate in Seibert. There is no doubt that the impact of pre-warning exchanges between interviewer and an in-custody interviewee on the admissibility of statements obtained post-Miranda will be followed closely in light of the Court's ruling in Seibert.

Endnotes

(1) 348 U.S. 436 (1966).

(2) Id. at 444. The Fifth Amendment to the U.S. Constitution provides in pertinent part that "no person ... shall be compelled in any criminal case to be a witness against himself....."

(3) 124 S. Ct. 2601 (2004).

(4) Id. at 2605.

(5) Id. at 2606

(6) Id.

(7) Id.

(8) Id.

(9) Id.

(10) Id.

(11) No. 23729, 2002 WL 114804 (1/3/2002) (not released for publication), citing Oregon v. Elstad, 470 U.S. 298 (1985).

(12) State v. Seibert, 93 S.W.3d 700 (2002).

(13) Seibert, at 2608. The Supreme Court noted that the Police Law Institute instructed officers on the two-tiered interrogation approach. Additionally, the Court referred to other training programs that encouraged the practice of questioning outside of Miranda first to secure an admission prior to proceeding with the advice of rights. Id.

(14) Id. at 2609.

(15) Id.

(16) Id.

(17) Id.

(18) Id.

(19) Seibert, at 2610.

(20) Id.

(21) Elstad, at 1289.

(22) Id.

(23) Id. at 1290.

(24) Id.

(25) Id.

(26) Id. at 1294.

(27) Id. at 1295.

(28) Id. at 1296.

(29) Id. at 1293.

(30) Seibert, at 2604.

(31) Id. at 2610.

(32) Miranda, at 436.

(33) Id. at 444.

(34) Seibert, at 2610.

(35) Miranda, at 443.

(36) Seibert, at 2610.

(37) Id. at 2606-2607.

(38) Id. at 2607.

(39) 388 F. 3d 1079 (2004).

(40) Id. at 1089.

By LUCY ANN HOOVER, J.D., L.L.M.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.