United States v. Alvin Ray , 690 F. App'x 366 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0318n.06
Case No. 16-1785
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 08, 2017
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
ALVIN RAY, )
)
Defendant-Appellant. )
BEFORE: KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.*
MARBLEY, District Judge. This case is before us a second time, following a remand to
the district court to conduct an evidentiary hearing on Alvin Ray’s motion to suppress statements
he made to the police after receiving a “midstream” Miranda warning. See United States v. Ray
(Ray I), 803 F.3d 244 (6th Cir. 2015). On remand, the district court conducted a hearing and
applied the midstream Miranda warning test from Missouri v. Seibert, 542 U.S. 600 (2004), as
we instructed, but still found Ray’s post-Miranda confession admissible. United States v. Ray,
No. 13-20143, 2016 WL 3180184 (E.D. Mich. June 8, 2016). As explained below, however,
a reasonable person in Ray’s shoes would not have viewed the post-Miranda questioning as a
“new and distinct experience” that presented “a genuine choice whether to follow up on [his]
*
The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio,
sitting by designation.
Case No. 16-1785, United States v. Ray
earlier admission.” Ray I, 803 F.3d at 272-73 (quotation omitted). Accordingly, we reverse and
remand for a new trial.
I. BACKGROUND
We already recited the relevant facts in Ray’s first appeal. The short version is that, upon
receiving complaints of drug activity at a residence on Genesee Street, Detroit police officers
arranged for a controlled buy using a confidential informant (“CI”). The CI returned carrying a
bag of marijuana that he claimed he purchased from a black male named Alvin Ray. The police
then obtained a search warrant and returned the next afternoon to execute it.
Upon executing the warrant, the police discovered Ray and his longtime girlfriend, Cara
Lee (the mother of Ray’s teenaged son), asleep upstairs. The officers rousted the pair from bed,
took them down to the living room, handcuffed them, and made them face a wall while the
officers searched the house for drugs and contraband. The officers ultimately discovered
marijuana, crack cocaine, an unloaded shotgun, several shotgun shells, a .22 caliber rifle, and a
semiautomatic handgun in various rooms of the house.
Ray and Lee remained detained in the living room for roughly an hour while the officers
executed the warrant. Several officers walked through the living room at different times, but no
single officer maintained custody of Ray and Lee during the entirety of the search.
Ray and Lee testified on remand and told essentially the same story: (1) that one or more
officers remarked that there were enough guns in the house for both Ray and Lee to go to jail;
(2) that one or more officers commented on Lee’s status as a state-court employee and made
veiled threats about her continued employment; (3) that an officer asked Ray whether he had
been to jail before, to which Ray replied that he had been to federal prison; (4) that the same
officer chastised Ray for destroying the community by selling drugs; (5) that the same officer
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asked who owned the guns the police found in the house; and (6) that, in response, Ray took the
blame for the guns to spare Lee the embarrassment of being arrested or losing her job.
Five of the officers who executed the warrant also testified on remand, while a sixth died
before Ray’s original trial and, thus, was unable to testify. The officers generally denied that
anyone discussed the guns or drugs with Ray while they were in the house. Not one of the
officers testified that a threat, whether explicit or implicit, was made to Ray or that he was
questioned at the house. The officers explained that it would have violated their procedures to
question Ray (or Lee) in the home or in the presence of one another. The officers further
testified that any discussion with Ray and Lee while at the house was limited to collecting
routine biographical information and to general topics, like sports and the weather. That said,
Officers Wiencek and Robson admitted that they spoke to Lee about her son and her
employment at the Wayne County Friend of the Court’s Office. And several officers left open
the possibility that someone on their task force asked Ray and Lee about who owned the guns in
the home. But not one officer could recall Ray claiming ownership, whether solicited or
unsolicited, of the guns or drugs while at the house.
After the search concluded, the officers arrested Ray (but not Lee) and took him to the
local police station for questioning. Once there, Officers Hill and Robson gave Ray Miranda
warnings for the first time, both orally and in writing. Ray signed a Miranda warning form and
certified that he had not been threatened or promised anything. He also agreed to answer their
questions. At that point, the officers allege that Ray first told them that the marijuana and
shotgun belonged to him, but he denied ownership of the crack cocaine and the other guns. Ray
testified that, during the interrogation, he admitted that the shotgun and marijuana were his
(but not the other firearms) because he already had admitted to it earlier at the house, and
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because he was afraid that if he denied ownership now, the police would retaliate against him by
arresting and charging his girlfriend.
As a result of the search and Ray’s statements to the police, he was convicted of one
count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); two counts
of possession with intent to distribute controlled substances (cocaine and marijuana), in violation
of 21 U.S.C. § 841; and one count of possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c). Lee was not charged with any crimes.
Ray appealed his convictions on several grounds, one of which we found potentially
meritorious. Ray I, 803 F.3d at 251. Accordingly, we reversed his convictions and remanded the
matter to the district court to conduct an evidentiary hearing regarding the admission of Ray’s
station-house confession. Id. In so doing, we explicitly adopted the “multi-factor test” from
Missouri v. Seibert to govern the admissibility of statements given after “midstream Miranda
warnings.” Id. at 272-73 (citing Seibert, 542 U.S. at 616 (plurality opinion)).
On remand, the district court held an evidentiary hearing, as instructed, and applied the
multi-factor test from Seibert before determining that Ray’s confession was admissible. Ray,
2016 WL 3180184, at *4-5. The court first concluded that most of Ray’s testimony during the
hearing was not credible. Id. at *3 (“With such discrepancies in Ray’s testimony on such basic
facts as the race of the threatening police officer, content of his threat, and timing of the
admission, Ray’s testimony [regarding coercive conduct] is not credible. Moreover, no
testimony by any police officer at trial or the evidentiary hearing supports Ray’s account . . . .”).
The court then examined each of the five factors from Seibert and concluded that not one of
them supported a finding that Ray’s police-station confession was inadmissible. Id. at *4-5.
Next, the court found that Ray’s station-house Miranda waiver was made knowingly,
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voluntarily, and intelligently. Id. at *5. As a result, the court concluded that Ray’s post-Miranda
statements were properly admitted at trial. Id.
II. STANDARD OF REVIEW
In determining the admissibility of statements allegedly taken in violation of a
defendant’s Miranda rights, we review the district court’s factual findings for clear error and its
legal conclusions de novo. Ray I, 803 F.3d at 265. We generally defer to the district court’s
assessments of credibility, review the evidence in the light most favorable to the district court’s
decision, and consider the evidence in the light most favorable to the government. Id.
III. ANALYSIS
Ray argues that the district court erred by concluding that the midstream Miranda
warnings he received were effective under the multi-factor test announced in Seibert. Before
turning to that question of law, we must first address the district court’s factual findings.
As explained below, those findings were incomplete and placed unwarranted importance on
minor inconsistencies in Ray’s testimony. Despite these weaknesses in the district court’s
analysis, we uphold the court’s factual findings because they fall short of clear error.
Nevertheless, even accepting the district court’s factual findings, we disagree with the court’s
legal conclusions under Seibert. Ray’s station-house confession is inadmissible.
A. The District Court’s Factual Findings Were Not Clearly Erroneous.
Before turning to Seibert, we must assess the district court’s factual findings, which
pervaded the rest of the court’s analysis. The court found that, “[a]t most . . . a police officer
asked [Ray] and Lee ‘whose guns are these?’ and [Ray] individually ‘have you ever been to jail
before?’” while at the house. Ray, 2016 WL 3180184, at *4. Ray testified that he responded by
saying “those are my guns” and “I have been to federal prison.” Id. Based on this “brief and
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cursory exchange,” the court found that the Government had met its burden of admissibility
under Seibert. Id. at *4-5.
The district court based these findings on its determination that Ray’s story was mostly
unbelievable since it had changed over time. Id. at *3 (noting inconsistencies between Ray’s
trial testimony and evidentiary hearing testimony as to: (1) which of six officers initially spoke to
him; (2) whether that officer made a declarative statement that Ray and Lee were going to jail or
asked “whose guns are these?” before threatening that Ray and Lee were going to jail; and
(3) whether Ray immediately admitted to owning the guns or paused before doing so). From our
vantage, these discrepancies were minor and largely irrelevant. The inconsistencies that the
district court focused on—i.e., which officer threatened Lee, what verbiage he used, and how
long it took Ray to respond to the threat—did not address whether the conversation actually
occurred. See United States v. Hughes, 604 F. App’x 448, 453 (6th Cir. 2015) (critiquing district
court for placing “unwarranted importance on relatively minor inconsistency in [defendant’s]
testimony”).
Even more troubling, however, is the fact that the court omitted any discussion of Cara
Lee’s testimony. Lee testified at length, and her testimony largely corroborated Ray’s version of
events—including significant corroboration as to receipt of threats from the officers and more in-
depth interrogation than the officers let on. Yet in weighing the credibility of Ray’s testimony
against the officers’ testimony, the court failed to mention Lee’s testimony at all. We do not
know if the court found her version of events credible, not credible, or partially credible. This is
deeply troubling, especially since our court often relies on credibility determinations based on
the consistency of two witnesses’ accounts. See, e.g., United States v. Garrido, 467 F.3d 971,
979 (6th Cir. 2006) (concluding that “consistency of the two officers’ accounts” indicates that
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their statements were credible); United States v. Simmons, 174 F. App’x 913, 917 (6th Cir. 2006)
(finding witnesses’ testimony credible because it was “substantively consistent”).
Finally, the circumstances of Ray’s arrest seem consistent with his (and Lee’s) version of
events. Consider: the police raided a house; found guns and drugs inside; handcuffed the only
two occupants and engaged in continuous conversation with them; chatted about Lee’s son, her
employment, and, as the district court concluded, who owned the guns—but then proceeded to
talk about nothing else but sports and the weather for an hour. It seems plausible that the police
spoke about more than just sports and the weather and that their conversation turned to whether
Lee might be arrested or fired, who owned the guns, who owned the drugs, and Ray’s prior
criminal record—as Ray and Lee collectively testified. The fact that the police arrested Ray but
not Lee buttresses his testimony that the police engaged in more fulsome interrogation and that
he admitted to owning the shotgun and the marijuana. Otherwise, why would the police let Lee
go free? She lived in the house, she was in the bedroom where the police found the marijuana,
and she was present and near the shotgun behind the bedroom door, just as Ray was.
Even considering these shortcomings in the court’s credibility determinations, we are
hard-pressed to find them clearly erroneous. After all, we are left with a “he said, they said”
scenario, and in cases “[w]here there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” United States v. Dillard, 438 F.3d 675, 681
(6th Cir. 2006) (quotation omitted). This deference holds true even when the court “place[s]
unwarranted importance on relatively minor inconsistencies in [a witness’s] testimony” and
“[d]espite . . . weaknesses in the district court’s analysis.” Hughes, 604 F. App’x at 453; see also
United States v. Ray, 361 F. App’x 674, 676 (6th Cir. 2010) (affirming denial of motion to
suppress where “the only testimony that supports [defendant’s] story is his own and that of his
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then-girlfriend[,] Tameka Brooks . . . both of which the district court found lacked credibility”).
Accordingly, we accept the district court’s credibility determinations and factual findings.
B. The District Court Erred as a Matter of Law by Finding Ray’s Midstream Miranda
Warnings Effective Under Missouri v. Seibert.
Even accepting the district court’s factual findings regarding the limited pre-Miranda
exchange between Ray and the police while at the house, we conclude that the court erred by
finding the later station-house Miranda warnings effective under Seibert. De novo review
requires our court to draw its own conclusions from the facts about whether a reasonable person
“could have seen the station house questioning as a new and distinct experience, [and whether]
the Miranda warnings could have made sense as presenting a genuine choice whether to follow
up on the earlier admission.” See Ray I, 803 F.3d at 272-73 (quotation omitted); see also United
States v. Wooten, 602 F. App’x 267, 272 (6th Cir. 2015).
1. Ray Was Subject to Custodial Interrogation at the House, Triggering Seibert.
Before turning to the multi-factor test from Seibert, we dispense with the Government’s
argument that Seibert does not apply because there was no custodial interrogation at the house.
See United States v. Courtney, 463 F.3d 333, 337 (5th Cir. 2006) (holding that, because first
statement did not violate Miranda, Seibert did not apply); United States v. Kiam, 432 F.3d 524,
531 (3d Cir. 2006) (holding that Miranda warnings were not required before routine questions by
border patrol, so Seibert was inapplicable to post-Miranda confession).
To be sure, the district court discredited Ray’s testimony as to whether “the police
officers’ conduct during the house search . . . amount[s] to coercion that tainted [his] later
Mirandized statements.” Ray, 2016 WL 3180184, at *3 (assessing whether police engaged in
coercive conduct so as to render Ray’s later confession inadmissible under Oregon v. Elstad,
470 U.S. 298 (1985)). Thus, we must accept that the police did not threaten to imprison Lee or
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Ray if they failed to admit ownership of the guns. Id. (“[T]he evidence does not reflect that Ray
was subject to objectively coercive police conduct that motivated a decision to confess.”).
But the court went on to accept the following facts: (1) that a police officer asked Ray
and Lee “whose guns are these?”; (2) that the same officer asked Ray individually “have you
ever been to jail before?”; and (3) that Ray responded by saying, “those are my guns” and
“I have been to federal prison.” Id. at *4; see also id. at *1 (“Ray says that a police officer then
questioned him about the guns that were seized, prompting him to admit they were his.”). Even
this brief and cursory exchange amounted to a custodial interrogation that required Miranda
warnings. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) (“We conclude that the
Miranda safeguards come into play whenever a person in custody is subject to either express
questioning or its functional equivalent. . . . A practice that the police should know is reasonably
likely to evoke an incriminating response from a suspect thus amounts to interrogation.”).
For starters, there is no dispute that Ray was handcuffed at the time and, thus,
“in custody” for Miranda purposes. See Ray I, 803 F.3d at 266 n.12 (collecting cases). And
asking a suspect whether he had a criminal record and owned or possessed a firearm certainly
amounts to “express questioning” that “police should know is reasonably likely to evoke an
incriminating response.” See Innis, 446 U.S. at 300-01; see also United States v. Ashmore,
609 F. App’x 306, 309-10, 317 (6th Cir. 2015) (affirming suppression of pre-Miranda statement
“that the car might contain a revolver” in response to question, “Do you have . . . any weapons
on you or in the car?”; “Agent Jenkins asked pre-Miranda the one compound question relevant
to a felon-in-possession charge: is there a gun in the car and are your fingerprints on it?”).
Unlike in Courtney, Kiam, and other cases where courts concluded that Seibert’s midstream
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Miranda warning test did not apply—Ray was both in custody and subject to custodial
interrogation while at the house.
We therefore turn our attention to the multi-factor test from Seibert, bearing in mind that
the burden of showing admissibility of a confession under that test rests on the Government—not
Ray. Ray I, 803 F.3d at 270 (“[T]he burden of showing admissibility rests, of course, on the
prosecution.” (quoting Seibert, 542 U.S. at 608 n.1)).
2. The Completeness and Detail of the Questions and Answers in the First Round of
Interrogation Suggest that the Miranda Warnings Were Ineffective.
The first Seibert factor—which looks to “the completeness and detail of the first round of
interrogation”—suggests that the Miranda warnings Ray ultimately received at the police station
were ineffective. By asking Ray about his possession and ownership of the guns, as well as his
prior stint in federal prison, the officers “asked pre-Miranda the [only] question[s] relevant to a
felon-in-possession charge.” Ashmore, 609 F. App’x at 317. In Ashmore, as here, the initial,
pre-Miranda questioning “was not as detailed as in Seibert.” Id. Nevertheless, we still mandated
suppression of the incriminating post-Miranda statements because the police asked, pre-
Miranda, all the questions they needed to obtain a conviction. Id. (“Under the plurality’s test, all
of the factors suggest that Agent Jenkins’ question-first, Mirandize-later tactic requires
suppression of the post-Miranda admission.”).
So too, here. Even accepting the district court’s factual findings, the officers still asked
Ray all the questions they needed to make an arrest, tailor their post-Miranda interrogation, and
secure a conviction. Id.; see also United States v. Pacheco-Lopez, 531 F.3d 420, 422, 428
(6th Cir. 2008) (finding first factor satisfied where initial questioning consisted of asking
defendant’s name, where he lived, and how he arrived at the house in drug trafficking case).
Under these circumstances, the officers’ initial questioning (and Ray’s responses) were detailed
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and complete enough to suggest that the station-house Miranda warnings were ineffective.
Ashmore, 609 F. App’x at 317.
3. The Overlapping Content of the Two Statements Suggests that the
Miranda Warnings Were Ineffective.
The second Seibert factor—which looks to “the overlapping content of the two
statements”—also suggests that the Miranda warnings Ray received at the police station were
ineffective. The district court concluded that there was “minimal” overlap because Ray provided
“extended admissions” at the police station that he did not give in his “abbreviated response[s] at
the house.” Ray, 2016 WL 3180184, at *4. We disagree.
At the house, Ray admitted to owning the guns and having served time in federal prison.
During the station-house questioning, the officers followed up on those responses based on “the
knowledge [they] gleaned during the initial questioning.” See Pacheco-Lopez, 531 F.3d at 428
(finding the second factor satisfied where officers followed up on previous questions and
answers). As in Pacheco-Lopez, the questions regarding who owned the guns and what Ray
knew about them were not “anomalous, which might support a finding that the warning was
effective, but [were] the next logical question[s] based on the earlier statements.” Id.; see also
Ashmore, 609 F. App’x at 317 (“The second . . . factor[] favor[s] suppression because the pre-
and post-Miranda questioning was materially the same . . . .”).
To be sure, during their post-Miranda questioning, the officers also inquired about the
drugs they discovered while executing the search warrant. And, because we accept the district
court’s factual findings, those would have constituted “new” questions during the second round
of interrogation. But asking some “new” or “amplifying” questions during a post-Miranda
interrogation does not render such a warning effective where pre-Miranda interrogation along
similar lines already occurred.
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In Pacheco-Lopez, for example, the officers asked questions regarding the defendant’s
identity, where he lived, and how and when he arrived at the target residence before reading him
his Miranda rights. 531 F.3d at 420. Upon learning that Lopez was from Mexico and had driven
to the home in Kentucky that week, the officers read him his Miranda rights and then began
asking follow-up questions as to whether he had brought any cocaine to the residence. Id.
Technically, these were “new” questions as compared to the pre-Miranda interrogation, but our
court correctly viewed them as “the next logical question[s] based on the earlier statements”—
thus satisfying the second Seibert factor for overlapping content. Id. at 428.
Likewise, in Ashmore, the arresting officer asked the defendant if he had any guns on him
or in his car, or if his fingerprints would be found on any weapons they discovered in the vehicle,
all before advising him of his Miranda rights. 609 F. App’x at 308. After Ashmore responded
that the car “probably” contained a revolver, the officer arrested him and advised him of his
Miranda rights. Id. During the post-Miranda interrogation, the officer continued along the same
line by asking Ashmore if he was a convicted felon and whether he knew that he could not
lawfully possess firearms. Id. But the officer did not stop there; instead, he also asked Ashmore
whether he used illegal drugs, to which Ashmore responded that he smoked crack cocaine. Id.
By that time, the officers searching the vehicle had discovered a gun and various drugs and drug
paraphernalia in the car. Id. As in Pacheco-Lopez, the post-Miranda interrogation involved
some new and amplifying information. But rather than applying a hyper-technical analysis of
whether the pre- and post-Miranda questioning and answers mirrored one another, our court
found substantial overlap between the two and suppressed the post-Miranda statements.
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Id. at 317 (“Agent Jenkins picked his line of questioning up post-Miranda right where he left off
pre-Miranda—he wanted to know what Ashmore knew about the gun . . . .”).
Even accepting the district court’s factual findings, we find substantial overlap between
the content of Ray’s pre- and post-Miranda statements, thus satisfying the second Seibert factor.
Ray elaborated on his earlier admissions, but that elaboration was made possible solely because
of the overlapping content between what he was asked pre- and post-Miranda.
4. The Timing and Setting of the First and Second Interrogations Suggest that the
Miranda Warnings Were Ineffective, but this Factor Presents a Close Call.
The third Seibert factor—which looks to “the timing and setting of the first and second
interrogations”—is a wash. The district court found that the forty-five minute interval between
when Ray was questioned at the house and the police station, coupled with the change in
location, were enough “to create a new and distinct experience for Ray in making the decision of
whether or not to admit his crimes.” Ray, 2016 WL 3180184, at *4 (quotation omitted).
Make no mistake: there was a break in the timing and setting of Ray’s two interrogations
that exceeds the facts from Seibert (twenty minute gap in time; same location); Pacheco-Lopez
(no gap in time; same location); and Ashmore (“second interrogation followed shortly after the
first”; slight change in location). See Seibert, 542 U.S. at 616 (plurality opinion); Pacheco-
Lopez, 531 F.3d at 427; Ashmore, 609 F. App’x at 317. Ray’s first round of questioning
occurred while he was handcuffed in the living room, with his face to the wall. Ray’s second
round of questioning occurred roughly forty-five minutes later, in an interrogation room at the
local police station. Ordinarily, this separation “both in time and in setting” would suggest that
“the third Seibert factor does not weigh as strongly against a finding of effectiveness as it
otherwise might.” See Wooten, 602 F. App’x at 274; see also Coomer v. Yukins, 533 F.3d 477,
491 (6th Cir. 2008) (holding that “[e]ven under the Seibert plurality’s test,” moving a suspect to
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a police station and waiting “several hours” to resume interrogation ordinarily constitutes a
“new and distinct experience” for Miranda purposes (quotation omitted)).
Ray argues that, from the vantage of a reasonable person in his shoes, the same coercive
elements survived his brief transfer from the house to the police station. In other words, Ray
argues that a forty-five minute break in questioning involving some of the same officers and the
same topics is no different than the twenty minute break in Seibert. He likewise argues that both
settings were coercive because in the first, he was: (1) handcuffed; (2) being asked about a set of
guns the officers had discovered in their house; and (3) worried about protecting his long-time
girlfriend, with whom he shared a young son; while in the second, he was: (1) under arrest;
(2) at a police station; (3) being asked about the same incriminating topics; (4) segregated from
Lee; and (5) still uncertain of her status.
Given these circumstances, we find that the timing and setting of the two interrogations
“does not weigh as strongly against a finding of effectiveness as it otherwise might.” Wooten,
602 F. App’x at 274. This factor cuts both ways and sheds little light on whether the station-
house Miranda warnings were ineffective as “presenting a genuine choice whether to follow up
on [Ray’s] earlier admission[s].” See Seibert, 542 U.S. at 616 (plurality opinion).
5. The Continuity of Police Personnel Suggests that the Miranda Warnings Were Ineffective.
The fourth Seibert factor—which examines “the continuity of police personnel”—
informs that the Miranda warnings Ray received at the police station were ineffective.
The district court determined that this factor “does not support a finding of inadmissibility”
because Ray testified “that the police officer who threatened Lee’s arrest at the house was
James Wiencek,” while “the interrogating police officers who questioned Ray at the police
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station were Gregory Robson and Patrick Hill.” Ray, 2016 WL 3180184, at *4 (“Thus . . . Ray’s
own testimony disqualifies him under this factor of the midstream Miranda test.”).
The district court was correct in one sense but still missed the bigger picture. In this case,
the same officers who conducted the second interrogation were intimately involved in the first.
Officers Robson and Hill were at the house during the execution of the search warrant. They
worked for the same law-enforcement agency and the same task force as did Officer Wiencek.
They traversed through the living room while Lee and Ray were handcuffed and detained.
Indeed, Robson and Hill were within hearing of most, if not all, of the conversations and
questioning while Ray was in custody and making his pre-Miranda statements. Thus, while the
same officer did not conduct both the pre- and post-Miranda questioning, there was at least a
“continuity of police personnel” during both rounds of questioning. See Seibert, 542 U.S. at 616
(plurality opinion) (emphasis added).
Contrast these facts with the Government’s case-in-support, United States v. Hernandez-
Hernandez, 384 F.3d 562 (8th Cir. 2004). There, a state trooper and Border Patrol agent took
turns conducting the initial, pre-Miranda questioning at a traffic stop and by telephone, only to
have an Immigration and Naturalization Service agent conduct the follow-on, post-Miranda
questioning five days later at the INS office. Id. at 563-66. In affirming the partial denial of the
defendant’s motion to suppress, the Eighth Circuit took care to note that, not only had five days
passed between the initial and subsequent questioning, but that the post-Miranda questioning
“was conducted by an INS agent who had no involvement in the earlier questioning.” Id. at 566
(emphasis added). Thus, the court concluded, “[i]t does not appear that the trooper, Border
Patrol, and INS used a multi-step interrogation in a calculated way to undermine the Miranda
warning.” Id. (quotation omitted). Here, in contrast, all of the officers involved in both steps of
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Ray’s interrogation worked for the same police department, formed part of the same task force,
and presumably had knowledge of Ray’s initial, unwarned statements.
Under these circumstances, we conclude that the fourth Seibert factor was met because
there was practical continuity of police personnel between Ray’s initial and follow-on
interrogations. If absolute continuity were the test, then police departments could easily
circumvent it by having one officer conduct the pre-Miranda questioning while another officer
listens in, only to have the second officer (or another officer with knowledge of the confession)
conduct the follow-on, post-Miranda interrogation. That cannot be right.
6. The Degree to Which the Interrogators’ Questions Treated the Second Round as Continuous
with the First Suggests that the Miranda Warnings Were Ineffective.
Finally, the fifth Seibert factor—which assesses “the degree to which the interrogators’
questions treated the second round as continuous with the first”—suggests that the Miranda
warnings Ray received at the police station were ineffective. The district court reasoned that this
prong “does not indicate that Miranda warnings were ineffective” because “[t]here was no
evidence the interrogating police officers referenced or used Ray’s prior admissions at the house
in the interrogation at the police station.” Ray, 2016 WL 3180184, at *5.
The record does not support the district court’s conclusion. Once they advised Ray of his
Miranda rights, Officers Robson and Hill asked him ten questions—several of which were
derivative of his earlier admissions, even under the district court’s factual findings regarding the
“brief and cursory” statements Ray made at the house.
For example, the officers did not ask Ray if he knew about the guns being in the house or
if he possessed a gun. Instead, they asked, “[w]hich guns found in the house belong to you,”
presumably because they knew Ray already admitted to owning at least one of the guns.
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Case No. 16-1785, United States v. Ray
(Dist. Ct. Doc. 114-1, PageID 1374). Ray clarified that he owned only the shotgun found in the
upstairs bedroom.
Likewise, the officers did not ask Ray general questions regarding past run-ins with the
law or whether he had a prior record. Instead, they asked him more specifically if he was “aware
that [he] was a convicted felon”—presumably because Ray already admitted to doing time in a
federal prison while being questioned at the house. (Id.). The officers also asked a targeted
question concerning whether Ray was “aware that owning a firearm is against the terms of [his]
release,” again, presumably as a follow-up to Ray’s earlier admission about doing time. (Id.).
Those were the only questions the officers asked about the guns or Ray’s status as a
convicted felon. (Id.). This lack of questioning suggests that the officers had very little work to
do at the post-Miranda interrogation because they were just following up on Ray’s prior
admissions. As in Ashmore, the officers “picked [their] line of questioning up post-Miranda
right where [they] left off pre-Miranda—[they] wanted to know what [Ray] knew about the
gun[s] that, by that time, had been found.” 609 F. App’x at 317. This suggests that “the
Miranda warnings did not effectively advise [Ray] that he had a real choice about giving an
admissible statement because the unwarned and warned interrogations blended into one
continuum.” Id. (quotation omitted); see also Pacheco-Lopez, 531 F.3d at 427-28 (finding the
fifth factor satisfied where interrogations seemed “continuous” and “part of one sequence”).
In summary, the first, second, fourth, and fifth factors identified by the Seibert plurality
all show that “a reasonable person in [Ray’s] shoes could [not] have seen the station house
questioning as a new and distinct experience,” while the third factor does not illuminate the
inquiry. See Seibert, 542 U.S. at 615 (plurality opinion). Under the totality of the circumstances,
“[i]t would have been reasonable to regard the two sessions as parts of a continuum, in which it
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would have been unnatural to refuse to repeat at the second stage what had been said before.”
See id. at 617.
All told, “the Miranda warnings could [not] have made sense as presenting a genuine
choice whether to follow up on [Ray’s] earlier admission[s],” and suppression of his post-
Miranda statements is required. See id. at 615-16; see also Pacheco-Lopez, 531 F.3d at 428
(“All five factors—and particularly factors three, four, and five—demonstrate that the Miranda
warning was ineffective. As a result, Lopez’s admission must be suppressed under Seibert’s
effectiveness test.”).
Because we find that Ray’s station-house Miranda warnings were ineffective, we need
not determine whether his Miranda waiver was made knowingly, voluntarily, and intelligently.
Seibert, 542 U.S. at 612 n.4 (plurality opinion) (describing how a defendant cannot “waive” his
Miranda rights if the underlying warning was ineffective); Pacheco-Lopez, 531 F.3d at 428 n.13
(“As discussed supra, the Seibert plurality explained that where a warning is ineffective, the
defendant cannot waive his rights.” (citing Seibert, 542 U.S. at 612 (plurality opinion))).
IV. CONCLUSION
For these reasons, we reverse the district court’s decision on remand; order the
suppression of Ray’s post-Miranda statements at the police station; and remand the case for a
new trial consistent with this opinion.
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