U.S. v. WILLIAMS

hts must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. Id. at 478-79.

"The purpose of the Miranda warning is to ensure that the person in custody has sufficient knowledge of his or her constitutional rights relating to the interrogation and that any waiver of such rights is knowing, intelligent, and voluntary."United States v. Carter, 489 F.3d 528, (2d Cir. 2007) (citingMiranda, 384 U.S. at 444-45).

Resolution of Williams' motion to suppress requires application of Miranda in a context in which (1) the defendant made a confession in response to interrogation while in custody and without benefit of Miranda warnings; and (2) the defendant was later given Miranda warnings, questioned about the same matters, and made additional admissions that were premised on the confession made during the first interrogation. The Supreme Court addressed two-stage interrogations in Oregon v. Elstad, 470 U.S. 298 (1985), and in Missouri v. Seibert, 542 U.S. 600 (2004), and the Second Circuit put its own gloss on the law in this area inUnited States v. Carter, 489 F.3d 528 (2d Cir. 2007) and in the recently issued United States v. Capers, ___ F.3d ___, 2010 WL 4869768 (2d Cir. Dec. 1, 2010).

In Elstad, 470 U.S. 298, the Supreme Court considered the case of a teenage boy charged with burglarizing a neighbor's home. A witness had implicated Elstad in the burglary, and two police officers went to Elstad's home with a warrant for his arrest.Elstad, 470 U.S. at 301. After arriving at Elstad's home, one of the officers — who did not administer Miranda warnings to Elstad — engaged in the following dialogue with him:

"I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said, yes, he did, and also added that he had heard that there was a robbery at the Gross house. And at that point I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, `Yes, I was there.'"

Id. Elstad was then brought to the local sheriff's office. About one hour later, Elstad was given Miranda warnings. He indicated that "he understood his rights, and, having these rights in mind, wished to speak with the officers." Id. Elstad then confessed to having committed the burglary of the Gross residence. Id.

The police officers did not tell Elstad that he was under arrest prior to his admission of guilt. State v. Elstad, 61 Or. App. 673, 675 (1983).

The Supreme Court held that Elstad's confession, made after he waived his Miranda rights, need not be suppressed, even though his earlier admission of guilt had been obtained before Miranda rights had been administered. Id. at 318. The Court stated that it would be

an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.

Id. at 309.

The Court went on to state that

there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.

Id. at 318.

In Missouri v. Seibert, 542 U.S. 600 (2004), the Court considered the constitutionality of 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 v. Arizona, the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time.

Id. at 604. A fragmented court held that "a statement repeated after a warning in such circumstances is inadmissible." Id.

A plurality of the Seibert Court stated that where law enforcement officers question a defendant without administeringMiranda warnings, obtain admissions, then issue the requisite warnings and obtain a new round of admissions, the "threshold issue . . . is [] whether it would be reasonable to find that in these circumstances the warnings could function `effectively' as Miranda requires." Id. at 611-12. Justice Souter, writing for Justices Stevens, Ginsburg and Breyer, set forth a list of factors to be considered in making this determination, including "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 [statements], the continuity of police personnel, and the degree to which the interrogator's questions treated the second round as continuous with the first." Id. at 615.

Justice Kennedy, however, concurred only in the judgment inSeibert, Id. at 618-22. His concurrence notes that the plurality's "test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations." Id. at 621. Justice Kennedy concluded, however, that "this test cuts too broadly," and stated that he "would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." Id. at 622. In all other cases, "[t]he admissibility of postwarning statements should continue to be governed by the principles ofElstad. . . ." Id.

In United States v. Carter, 489 F.3d 528 (2d Cir. 2007), the Second Circuit addressed the impact of Seibert on Elstad. The Circuit concluded that "Seibert lays out an exception to Elstad for cases in which a deliberate, two-step strategy was used by law enforcement to obtain the postwarning confession." Id. at 536. In all other cases, "the holding in Elstad applies." Id. The Circuit thus adopted Justice Kennedy's approach.

Carter involved questioning conducted after the execution of a search warrant at a Brooklyn restaurant. ATF agents recovered a large amount of drugs at that location. They subsequently arrested Michael Bearam, the appellant, who owned and operated the restaurant. Id. at 531. An agent who had been involved in executing the search warrant asked Bearam whether the brown powder recovered by agents was heroin. Bearam replied, "No, it's bad." The agent asked, "Bad what?" Bearam replied, "Bad coke." Id. at 532.

About 45 to 60 minutes later, at an ATF field office, a different agent read Miranda warnings to Bearam, who waived his rights and admitted that he dealt drugs and that the drugs recovered from the restaurant were his. Prior to making these incriminating statements, Bearam "was not told that the statement he had previously made could not be used against him." Id. at 533. The District Court suppressed Bearam's first statement referring to "bad coke," but denied the motion to suppress the second round of statements. Id.

The Second Circuit affirmed, finding that "a deliberate, two-step strategy was not employed." Id. at 536. The Court noted that the first agent had asked Bearam "only one question" and that accordingly "there was almost no overlap between [the first] statement and the full confession he gave after he received the warnings." In contrast toSeibert, agents did not obtain a full, unwarned confession, and then "essentially cross-examine[] [the defendant] about [his] confession . . . after having been given the warning." Carter was questioned by different agents, in different locations. There was also no evidence that the second agent knew about the earlier statement. Accordingly, there was no continuity between the two rounds of questioning. The court also determined that the first agent's question was "not coercive," and that Bearam's answer was "voluntary." In light of the warnings later administered, and Bearam's written waiver, the court held that Bearam's post-warning statements were admissible. Id. at 536-37.

Finally, in Capers, the Second Circuit considered two-stage interrogations conducted by a postal inspector in a stolen mail case. The inspector planted Express Mail envelopes — one of which was rigged with an alarm — in the mail-sorting facility in which Capers worked. Capers, 2010 WL 4869768, at *1. The envelopes contained money orders and cash. Id. The inspector observed the defendant and another employee, Lopez, carry mail into a trailer. Id. Less than a minute later, the alarm sounded, and inspectors apprehended both Capers and Lopez. Id. Without administering Miranda warnings, one of the inspectors — Hoti — "asked Capers where the contents of the Express Mail envelope were located," telling him that "I'm going to do my best to make you go away." Id. Capers told the inspector that the money orders were in his pants pocket. Id. The inspector retrieved the money orders. "The entire questioning took less than five minutes." Id.

Inspector Hoti testified that he had not

read Capers his rights because he was in a hurry to track down the missing money orders so that they did not get lost in the large mail-sorting facility and because he needed to question Lopez, who was held handcuffed outside the supervisor's office to determine his level of involvement in the crime.

Id.

Capers was then brought to another postal service facility, where he was placed in an interview room and handcuffed to a chair. Id. at *2. Approximately 90 minutes after his arrest, Inspector Hoti read Miranda warnings to Capers, who executed a written waiver. Hoti made no reference to Capers' earlier statements, but "proceeded to question Capers about . . . what he did with the Express Mail envelopes earlier that night. Capers verbally confessed to taking the money orders." Id. Although the District Court had concluded that Inspector Hoti "did not have the `specific intent' to circumvent Capers' Miranda rights." id. (quoting United States v. Capers, No. 06 Cr. 266, 2007 WL 959300, at *14 (S.D.N.Y. Mar. 29, 2007)), the Second Circuit rejected that credibility finding, ruling that Capers' second set of statements had to be suppressed, because Inspector Hoti's conduct "amounted to a deliberate, two-step interrogation technique designed to undermine the defendant's Miranda rights." Id. at * 1.

Capers instructs that when a court confronts a two-stage interrogation, as here, it

must address whether the officers employed a "deliberate, two-step strategy, predicated upon violating Miranda during an extended interview," Seibert, 542 U.S. at 621, 124 S.Ct. 2601, and if so, whether "specific curative steps," id., were taken to obviate the violation that occurred.

Id. at *6. A "court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness, with a recognition that in most instances the inquiry will rely heavily, if not entirely, upon objective evidence." Id. at *7. In pursuing a deliberateness inquiry, the Second Circuit emphasized that courts must conduct "a searching and penetrating inquiry of the officer's testimony and proffered reasons for delayingMiranda warning[s]." Id. at * 11. The Government bears the burden of disproving "deliberateness" by a preponderance of the evidence. Id. at *7-8.

The Court expressed doubt as to the veracity of testifying officers and agents in these circumstances, endorsing "Justice Souter's observation that `the intent of the officer will rarely be as candidly admitted as it was' in Seibert." Id. at *7.

Applying these rules to the evidence before it, the Capers court concluded that the Government had failed to meet its burden of demonstrating that a "deliberate, two-step strategy" had not been utilized to undermine Capers' Miranda rights. The Court rejected Inspector Hoti's explanation of why he had not initially given Miranda warnings to Capers as "lacking . . . credibility," given that he "had time to think through what procedural steps he would need to take following arrest in order to build his case for prosecution." Id. at *9-10. The Circuit further noted that "Hoti was experienced enough to know that in this case there was no valid reason to delay a Miranda warning until after questioning a suspect in custody." Id. at *10. The "[o]bjective evidence" likewise demonstrated that Capers had been "subjected to a two-step interrogation," given the "considerable overlap between the statements elicited from the defendant during the first and second interrogation," the common "inquisitorial environment" at both stages, and the "continuity of the cast of interrogating officers." Id. at *12. Finally, the Circuit noted "that Hoti's initial questioning of Capers was . . . a formal interrogation," and that "[o]nly 90 minutes separated the two interrogation sessions." Id.

Having concluded that "the inspectors employed a strategy to circumvent the defendant's Miranda rights," the Court went on to consider "whether any curative measures intervened to restore the defendant's opportunity to voluntarily exercise his Miranda rights." Id. at *13 (citing Seibert, 542 U.S. at 622). The Court found no such curative measures, noting that the 90 minutes that elapsed between Capers' arrest and the second interrogation, and the circumstances of the two interrogations, did not constitute a "`substantial break'" that would have "restore[d] [Capers'] opportunity to voluntarily . . . exercise his Miranda rights."Id. at *13. The Circuit also noted that Hoti "never alerted Capers to [the] fact" that his "first statement would be inadmissible in court": "Hoti continued his line of questioning without dispelling Capers' probably assumption that he had already incriminated himself based on his first confession." Because the inspectors had pursued a "deliberate, two-step interrogation strategy," and given the absence of any "curative measures," the Second Circuit held that Capers' post-Miranda warning confession had to be suppressed. Id. B. Application of Capers

Capers sets a high standard for the admission of a second-stage confession following a Miranda violation. The implications of the decision are quite broad. Justice Kennedy, in rejecting theSeibert plurality's view authorizing suppression "in the case of both intentional and unintentional two-stage interrogations," proposed an approach that he envisioned would have a much more confined application:

I would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.

Seibert, 542 U.S. at 622 (Kennedy, J. concurring) (emphasis added).

The effect of Capers, however, is to take Justice Kennedy's test well beyond "the unique and never-again-to-be-repeated circumstances of Seibert," Capers, 2007 WL 959300, at *11, and to apply it to a much broader category of cases. This result is the consequence of the Circuit's burden of proof determination and requirement that law enforcement officers proffer a legitimate reason for not giving Miranda warnings during the first interrogation. While Justice Kennedy's test focuses on whether law enforcement officers acted with premeditation to undermine a Miranda warning they planned to give later — a test quite difficult for a defendant to meet — the Circuit's inquiry turns on whether the decision to foregoMiranda warnings is legally justifiable. It is plain from Capers that this will almost never be the case:

"[o]nce a law enforcement officer has detained a suspect and subjects him to interrogation . . . there is rarely, if ever, a legitimate reason to delay giving a Miranda warning until after a suspect has confessed. Instead, the most plausible reason . . . is an illegitimate one, which is the interrogator's desire to weaken the warning's effectiveness."

Id. at 9 (quoting United States v. Williams, 435 F.3d 1148, 1159 (9th Cir. 2006)) (emphasis in original). The Circuit went on to state that "[t]he only legitimate reason to delay intentionally aMiranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers or the public. . . ." Id. (citing United States v. Newton, 369 F.3d 659, 677 (2d Cir. 2004). Applying Capers here, this Court is constrained to grant Williams' motion to suppress the statements he made at the 44th Precinct.

In contrast to the facts of Elstad and Carter, there is no doubt that Agent D'Antonio's questioning of Williams at the College Avenue apartment constitutes interrogation of a suspect in custody. Williams was handcuffed and placed under arrest immediately after officers entered the apartment. (Tr. 168) The firearms were in plain view and were seized "immediately on entry." (Tr. 174-75) "Seconds" after officers entered the apartment, Agent D'Antonio asked Williams "whose guns are these?" (Tr. 185), and Williams responded "that the firearms were all his." (Tr. 115)

There is also no doubt that Agent D'Antonio's purpose in questioning Williams was to elicit an incriminating testimonial response:

Q. So you asked whose guns those were?

A. That's correct.

Q. And that question was intended to prompt somebody to admit to owning those guns?

A. That was one of the reasons. And to find out possible information on the additional five guns, where they might have went to.

Q. Well, your question was who owns these guns, right?

A. Correct.

(Tr. 173; see also Tr. 188 ("it was an attempt to establish custody of those firearms")

When Agent D'Antonio was asked explicitly on redirect whether his questioning of Williams — prior to administering Miranda warnings — was intended to subvert the defendant's rights underMiranda, Agent D'Antonio merely repeated that he asked the question to establish ownership of the guns:
Q. Turning back to Mr. Williams, when you asked him the questions about who owned the guns . . . was it your intention to ask him that question before you had read him — when you asked that question, had you informed him of his rights under Miranda? A. I had not at that point. Q. And was it your intention, when you asked that question without having yet informed him of his rights under Miranda, was it an attempt to get a statement from him before he had been informed of his rights under Miranda? A. It was an attempt to establish custody of those firearms, in addition to trying to locate the additional five firearms that we had thought would be there and were not there. (Tr. 187-88)

It is also apparent that Agent D'Antonio was aware of his obligation to administer Miranda warnings before interrogating a suspect in custody. D'Antonio is a highly experienced law enforcement officer. He has been an ATF agent for eight years and he served as an NYPD officer for 15 years before joining ATF. (Tr. 101) Moreover, at the suppression hearing, D'Antonio did not contend that his failure to give Miranda warnings was the result of mistake or inadvertence.

In cases denying suppression, the interrogating officers' good faith has been an important factor. See, e.g., Carter, 489 F.3d at 532 (noting that agent who elicited unwarned admission did not report the statement to second agent who conducted post-warning interrogation); United States v. Hernandez, No. 06 Cr. 46 (GEL), 2006 WL 2242318, at *6 (S.D.N.Y. Aug. 3, 2006) (noting that "the officers here did not flout Miranda. Agent Cruz's testimony . . . makes clear that the agents' strategy here was premised on the good-faith belief that Hernandez was not in custody and that warnings were therefore not required" during the first round of questioning). Here, in contrast, the Government has not explained how Agent D'Antonio could have had a good faith belief that it was proper to question a suspect in custody about ownership of the seized guns absent Miranda warnings.

When asked at the suppression hearing "why [he] didn't . . . read the suspect[s] their Miranda rights before asking any questions about the ownership of the guns?", D'Antonio testified: "Because we were still trying to find who we thought was Philip Scott Alabama or Philip Burroughs. We thought they would still be around and would lead to multiple firearms that were not present at the location." (Tr. 115-16) D'Antonio's question about ownership of the guns, however, does not go to the whereabouts of "Alabama" or to the location of other firearms. Accordingly, the Court concludes that Agent D'Antonio interrogated Williams and Walker about ownership of the guns because — as Agent D'Antonio testified — he hoped that "somebody [would] admit to owning those guns." Under Capers, obtaining such an admission is not a "legitimate reason to delay intentionally aMiranda warning until after a custodial interrogation has begun." 2007 WL 959300, at *9.

For these same reasons, the Government's "public safety" argument (Gov't Post-Hearing Br. 46-47; Gov't Supp. Mem. 4-5) is not persuasive. While, as the Capers court acknowledged, Capers, 2007 WL 959300, at *9, there is a public safety exception to theMiranda requirement, the Second Circuit has made clear that "the public safety exception applies [only] where "`"questions [are] reasonably prompted by a concern for the public safety" or for the safety of the arresting officers.'" United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005) (quoting United States v. Reyes, 353 F.3d 148, 152 (2d Cir. 2003) (quoting New York v. Quarles, 467 U.S. 649, 656 (1984))). Here, both Williams and Walker were in handcuffs, and law enforcement officials had seized the firearms in plain view and conducted a search of the apartment for other firearms. (Tr. 23, 114) As a result, neither the occupants in the apartment nor the firearms inside the apartment presented an immediate danger to the officers or to the public.See United States v. Newton, 369 F.3d 659, 679 (2d Cir. 2004) (noting that seized "weapon no longer presented an immediate risk of danger" to law enforcement officers).
Moreover, the public safety "exception is limited by the fact that pre-Miranda questions . . . may not be investigatory in nature or `designed solely to elicit testimonial evidence from a suspect.'" Estrada, 430 F.3d at 612 (quoting Quarles, 467 U.S. at 658-59). "[T]o fall within the [public safety] exception, a question must have some rational relationship to defusing the perceived danger." Newton, 369 F.3d at 679 n. 8). While "`precision crafting cannot be expected' in the circumstances of a tense and dangerous arrest," Estrada, 430 F.3d at 612 (quotingNewton, 369 F.3d at 678, it is apparent that Agent D'Antonio's question about who owned the guns was "investigatory in nature" and was designed to elicit testimonial evidence — a confession as to who owned the firearms. The question was not aimed at protecting the officers or the public.

Finally, it is undisputed that Agent D'Antonio never told Williams that the statement he made at the College Avenue apartment would be inadmissible. In Capers, the Second Circuit directed lower courts to "consider an experienced officer's failure to warn a suspect that an earlier admission, known to the interrogating officer, is inadmissible. Indeed, such an omission on the part of the interrogating officer is probative of a `calculated' plan to subvert Miranda," Id. at *13 n. 6.

The objective factors cited in Capers likewise do not support the Government's position. With respect to overlap between the statements, Williams' confession at the College Avenue apartment was the premise for the later questioning at the 44th Precinct. At the police station, Williams provided background details for how he obtained the guns that he had admitted at the apartment were his, and described his sale of two of the firearms he had transported to New York from Alabama. D'Antonio's questions at both locations were essentially the same. (Tr. 115-16, 178-79) With respect to continuity of law enforcement personnel, Agent D'Antonio conducted the interrogation at both locations. (Tr. 115-16, 122, 173, 178-79) Agent Kelly was present at the apartment, and was present initially at the 44th Precinct. Detective Santiago was present both at the apartment and at the police station. "Finally, the temporal proximity of the pre- and post-warning interrogations, along with the continuity of [Williams'] custody, reasonably leads to the conclusion that the latter was a continuation of the former. Only [approximately 100] minutes separated the two interrogation sessions.'" See Capers, 2007 WL 959300, at *12. While the setting of the interrogations changed, "the inquisitorial environment of the questioning was consistent." Id.

In sum, both the subjective and the objective factors support Williams' argument that he was subjected to a deliberate two-step interrogation strategy. Accordingly, the Government has not met its burden under Capers.

"Deliberateness having been established, [the Court] must next consider whether curative measures intervened to restore the defendant's opportunity voluntarily to exercise his Miranda rights." Id. (citing Seibert, 542 U.S. at 622). Justice Kennedy gave two examples of curative measures: (1) "`a substantial break in time and circumstances between the pre-warning statement and the Miranda warning,' and (2) `an additional warning that explains the likely inadmissibility of the prewarning statement.'" Id. No such curative measure occurred here. There was no substantial break in time or circumstances, and Williams "had no reason to know that his first broad confession could not be used against him when, only [100] minutes later while still in close custody, he actually `waived' his Miranda rights." Id. at *13.

Because the Government has failed to meet its burden underCapers of demonstrating that law enforcement officers did not employ a strategy designed to circumvent Williams'Miranda rights, and "because there were no curative measures to ensure that the defendant was not misled with regard to his rights prior to his second confession,"id., Williams' waiver of his Miranda rights was invalid. Accordingly, the statements Williams made at the 44th Precinct must be suppressed.

CONCLUSION

For the foregoing reasons, Defendant's motion to suppress is DENIED as to all evidence obtained as a result of the search of 1200 College Avenue, Apartment 3C, Bronx, New York, and is GRANTED as to Williams' statements to law enforcement authorities at the 44th Precinct.

The Clerk of the Court is directed to terminate the motion: Docket No. 15.

SO ORDERED.