led, (Jun. 28, 2010) (No. 10-5140) and petition for cert. filed, (Jul. 28, 2010) (No. 10-5718). And nothing in the plurality opinion suggested that, once it is determined that police have employed that deliberate tactic, a post-Miranda confession should be admitted absent curative measures.
Indeed, Justice Breyer, who joined the plurality opinion in full, was of the view that the fruits of a deliberate two-step strategy should always be suppressed.
.
The prewarning interrogation was highly confrontational and detailed; the two sessions took place in the same small interrogation room, back-to-back, with no break at all; the police personnel were exactly the same; and, as described above, the officers' questioning treated the two sessions as continuous and drew, in one instance, on Thompson's pre- Miranda statement during the second session to ensure that the earlier inculpatory material was reiterated after the requisite warnings were given. And the police took no curative measures whatsoever. The post-confession Miranda warnings could not have been effective in meaningfully apprising Thompson of his rights and enabling him to invoke them.
The second set of warnings, administered the next morning at the jail, before the videotaped reenactment of the crime, presents a closer question. Still, after careful consideration, we are convinced that all of the factors continue to point to the conclusion that it too was ineffective. The completeness and detail of the prewarning interrogation remained unchanged from the time of the first, ineffective, warnings. If anything, Thompson would have perceived the invocation of his rights as even more futile the next morning, having in the interim confessed to murder a second time and shown the inspectors — in the early morning hours after the completion of the late-night interrogation at the station — the place where he tried to dispose of the evidence. In addition, there was almost complete overlap in content between Thompson's first two confessions and the reenactment he was to conduct at Bivins' house later that day. Indeed, the inspectors consistently treated the reenactment as continuous with the previous night's interrogation, making clear to Thompson before allowing him to go to sleep the night before that he would need to participate in the reenactment the next day and telling him immediately before the reenactment, "[A]ll we're gonna do is what we talked about yesterday, is go through what happened."
The timing and circumstances of the second set of warnings, particularly the break in time and change in location, were somewhat more conducive to a knowing and intelligent waiver than in the case of the first warnings. But on balance, this factor does not support the conclusion that the warnings were effective either. At the conclusion of the previous night's interrogation at around 2:00 a.m., Thompson accompanied the police to search for the murder weapon and his bloodied clothing. Afterwards, still distraught and suicidal, he spent the rest of the night shackled to the floor of a suicide-watch room at the main detention facility in Martinez. Stripped to his underwear and deprived of blankets or a bed, Thompson was too cold to sleep.
It was there, at the main detention facility, that Inspectors Conaty and Giacomelli administered the second set of warnings the next morning. Thompson thus spent the night "isolated in an `unfamiliar,' `police-dominated atmosphere,' Miranda, 384 U.S. [at 456-57, 86 S.Ct. 1602], where his captors `appear[ed] to control [his] fate,' Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 [(1990)]." Maryland v. Shatter, ___ U.S. ___, 130 S.Ct. 1213, 1220-21, ___ L.Ed.2d ___ (2010). Under the circumstances, the short break in time and minor change in location did not provide an opportunity for "further deliberation in familiar surroundings," see id. at 1221, and do not weigh in favor of finding the warnings effective.
Moreover, there was complete continuity of police personnel during the first confession, the first warning, the second confession, and the second warning. Just as was so the night before, Thompson was alone with Inspectors Conaty and Giacomelli in a jailhouse room when he received these warnings. Faced with the same two people to whom he had repeatedly confessed, Thompson would have found absurd the suggestion that he retained a meaningful right to "remain silent."
Finally, the inspectors failed once more to take any curative measures at all. Particularly after Thompson had already incriminated himself in several unwarned or improperly warned interactions with the inspectors, it was incumbent upon them to give "an additional warning that explained] the likely inadmissibility of the prewarning custodial statements]." Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring).
In light of all these circumstances, we have little difficulty concluding on de novo review that the officers' deliberate two-step interrogation strategy rendered ineffective the Miranda warnings administered to Thompson. The admission of Thompson's inculpatory statements at trial was reversible error unless harmless.
Here, Thompson's confession was the heart of the prosecution's case. The jury watched video recordings of Thompson's thorough confession and of his vivid reenactment of the brutal crime. While other evidence at trial suggested that Thompson had a motive to kill Bivins, no other evidence identified him as the killer. Without the confession, the prosecution had at best a weak circumstantial case, based on motive and opportunity. The erroneous admission of Thompson's inculpatory statements was clearly prejudicial.
In affirming the admission of Thompson's confessions, the California Court of Appeals applied a rule contrary to that announced by the Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). On de novo review, we conclude that police officers' deliberate withholding of Miranda warnings until after Thompson confessed rendered the belated warnings ineffective. Because the introduction at trial of Thompson's confession was both constitutionally infirm and highly prejudicial, we reverse the district court's denial of Thompson's petition for a writ of habeas corpus.
REVERSED.
IKUTA, Circuit Judge, dissenting:
Petitioner Antwion Thompson voluntarily confessed to murdering his girlfriend. He confessed at the police station the day the murder was committed, and again the next day when he reenacted the crime on videotape for police at the victim's house. On these two occasions, Thompson was advised of his Miranda rights and voluntarily waived those rights. Though these warned confessions were preceded by a period of unwarned questioning, there is no legal basis to exclude them from the jury's consideration here. See Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004); Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). I respectfully dissent from the majority's decision to grant Thompson's habeas writ.
I
On federal habeas review, the facts found by the state court are presumed to be correct, unless the petitioner can overcome the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1) (2006). Here, Thompson does not challenge the state court's factual findings, and therefore we must adopt those findings as true in reviewing Thompson's writ. Despite this rule, the majority opinion sets forth an account of the facts in a manner that favors Thompson's appeal. Accordingly, it is necessary to recount some of the state court's key factual findings below.
Thompson agreed to go with inspectors to the police station to discuss his role in finding the victim's body. People v. Thompson, No. A099879, slip op. at 3, 2004 WL 198349 (Cal.Ct.App. Feb.3, 2004). Once there, he waited approximately six hours in the police break-room before being questioned. Id. at 3-4. Thompson was neither handcuffed nor pat-searched during this period. Id. at 3. The break room had a couch and a television. Id. The door to the break room was open. Id. at 8. Thompson was told to relax and watch television, which he did. Id. at 3. Thompson spent most of the six hours sleeping on the couch. Id. at 3-4. He never asked to leave, said he was cold, asked for food or water, or made other requests. Id. at 3-4, 9.
When the police came to get Thompson, they apologized for keeping him waiting and asked if they could speak with him in another room. Id. at 4. Thompson agreed and said he was feeling "`okay.'" Id. He did not indicate that he wanted to leave or that he did not want to speak with police. Id. He was not handcuffed during questioning. Id. His questioners were not in uniform and did not have guns. Id. Though the interview room was small and the door was closed, it was not locked. Id. When Thompson said the room was cold, the inspector turned on the heater. Id.
At the outset of questioning, Thompson complained of a headache. Id. The inspector asked him, "`Do you feel like doing — can we do this now or would you rather do this another time? . . . You can go if you don't want to do it now.'" Id. Thompson replied, "`We can go through it.'" Id. The inspectors then questioned Thompson for an extended period without providing Miranda warnings. Id. Over the course of questioning, Thompson admitted that he had been at the victim's house immediately before he asked his father to take him there and that he had stabbed the victim by accident during an argument in which the victim came at him while he was holding a knife. Id. Subsequently, inspectors informed Thompson of his Miranda rights, and Thompson repeated his earlier admissions. Id. According to the state court, "[t]he videotape [of the interview] indicates that the inspectors were careful, polite, and soft-spoken, not overbearing. Nothing on the videotape indicates that Thompson did not understand his rights or was reluctant to speak to the inspectors." Id. at 14.
At about 2:00 a.m., Thompson led inspectors to locations where he had disposed of the murder weapon and burned his clothes. Id. at 4. Thompson also agreed to participate in a videotaped reenactment of the victim's death. Id. "Although Thompson spent a cold and uncomfortable night in the county jail following the interrogation, he was fed and again advised of his Miranda rights before doing the reenactment." Id. at 15. The reenactment commenced at about 12:47 p.m., the day after the murder. Id. at 4.
II
Because Thompson filed his federal habeas petition after April 24, 1996, his petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254 (2006). See Woodford v. Garceau, 538 U.S. 202, 204, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003); Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). Under AEDPA, a federal court must deny habeas relief with respect to any claim adjudicated on the merits in a state court proceeding unless the proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(1)-(2). "Section 2254(d)(1)'s `clearly established' phrase `refers to the holdings, as opposed to the dicta, of th[e] Court's decisions as of the time of the relevant state-court decision.'" Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)); accord Carey v. Musladin, 549 U.S. 70, 74, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Yarborough v. Alvarado, 541 U.S. 652, 660-61, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). "In other words, `clearly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 71-72, 123 S.Ct. 1166.
The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision. See Ylst v. Nunnemaker, 501 U.S. 797, 804-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); Riggs v. Fairman, 399 F.3d 1179, 1182 (9th Cir. 2005). Here, the February 3, 2004 decision of the state appellate court is the last reasoned adjudication of Thompson's Miranda claim. At that time, the Supreme Court had not yet decided Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Accordingly, under AEDPA, the clearly established Supreme Court precedent applicable to Thompson's claim is Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).
The majority chooses to ignore this principle on the ground that, on appeal, the government did not argue that Seibert was inapplicable under AEDPA. Maj. op. at 1015-16 n. 7. But this does not change § 2254(d)(1)'s statutory mandate that the federal court cannot grant habeas relief unless the state court's decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, which the Supreme Court defines as "the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 71-72, 123 S.Ct. 1166 (emphasis added); see also Murdoch v. Castro, 609 F.3d 983, 990 (9th Cir. 2010) (en banc) ("The Supreme Court has restricted `clearly established Federal law' under § 2254(d)(1) to `the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'" (emphasis added) (quoting Musladin, 549 U.S. at 74, 127 S.Ct. 649) (internal quotation marks omitted)). Although we may deny a petitioner's writ in light of Supreme Court precedent decided after the relevant date, see Smith v. Spisak, ___ U.S. ___, 130 S.Ct. 676, 680-81, 175 L.Ed.2d 595 (2010); Danforth v. Minnesota, 552. U.S. 264, 288, 290-91, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), the Supreme Court has never held that a reviewing court may ignore the statutory command of § 2254(d) and grant habeas relief when the state court's decision was consistent with then-applicable Supreme Court precedent.
Instead of arguing that Seibert was not "clearly established" Supreme Court precedent relevant to Thompson's claim under AEDPA, the government argued that Thompson failed to exhaust his claim that the state court's decision was inconsistent with Seibert. The majority offers a rather lengthy discussion on whether Thompson's Seibert argument was properly exhausted under Blair v. California, 340 F.2d 741, 745 (9th Cir. 1965). Maj. op. at 1013-16 1014-15 n. 6. My analysis of the issue is much simpler: Thompson exhausted his claim because he fairly presented the issue of the admissibility of his post-warned statements to the suite's highest court, and even cited to the Supreme Court's then-pending decision in Seibert in his petition for review before the state supreme court. In my view, this was sufficient to satisfy the exhaustion requirement. See Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).
Here, Elstad, rather than Seibert, is the clearly established Supreme Court precedent under AEDPA, and (as described below) the state court's decision was not contrary to or an unreasonable application of Elstad. Therefore, the majority errs in applying Seibert as "clearly established Federal law" relevant to our AEDPA review of Thompson's claim, in consequently holding that, the state court's decision was contrary to Seibert, and in thereafter reviewing the merits of Thompson's petition de novo.
III
Even under de novo review, however, the state court's denial of Thompson's Miranda claim did not violate Thompson's constitutional rights under Seibert or Elstad, as review of those two cases demonstrates.
A
In Elstad, a suspect made incriminating statements to a police officer at his home without first receiving Miranda warnings. 470 U.S. at 300-01, 105 S.Ct. 1285, Officers thereafter took the suspect to the county sheriffs office, read him his Miranda rights, and obtained a confession expanding on his earlier inculpatory statements. Id. at 301-02, 105 S.Ct. 1285. In court, the suspect argued that the post-warning statement should be suppressed because it was likely induced by the un-warned statement. Id. at 302, 105 S.Ct. 1285. The Supreme Court granted certiorari to "consider the question whether the Self-incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant." Id. at 303, 105 S.Ct. 1285.
The Court determined that, in such cases, suppression was not required. It explained that, "far from prohibited by the Constitution, admissions of guilt by wrong-doers, if not coerced, are inherently desirable." Id. at 305, 105 S.Ct. 1285 (quoting United States v. Washington, 431 U.S. 181, 187, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977)). Because the Fifth Amendment "prohibits use by the prosecution in its case in chief only of compelled testimony," Miranda does not require that subsequent statements given after unwarned statements be "discarded as inherently tainted." Id. at 306-07, 105 S.Ct. 1285. Instead, the Court held that "the admissibility of any subsequent statement should turn . . . solely on whether it is knowingly and voluntarily made." Id. at 309, 105 S.Ct. 1285.
In so ruling, the Court rejected the state court's reasoning that, "[a]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed." Id. at 311, 105 S.Ct. 1285 (internal quotation marks omitted) (quoting United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947)). Because there is little justification for "permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder," id. at 312, 105 S.Ct. 1285, the Court ruled that a "subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement," id. at 314, 105 S.Ct. 1285. In other words, "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." Id. at 318, 105 S.Ct. 1285 (footnote omitted).
The Supreme Court carved out an exception to Elstad's general rule in Seibert. There, the Court considered "a police protocol for custodial interrogation that call[ed] for giving no warnings of the rights to silence and counsel until interrogation has produced a confession." 542 U.S. at 604, 124 S.Ct. 2601. In Seibert, police arrested a woman suspected of murdering a mentally ill teenager living in her home. See id. Before providing her with Miranda warnings, an officer aggressively questioned her for thirty to forty minutes. Id. at 604-05, 124 S.Ct. 2601. After she confessed, the police gave her Miranda warnings, confronted her with her un-warned statements, and extracted a second confession. Id. at 605, 124 S.Ct. 2601. At the suppression hearing, the police officer "testified that he made a `conscious decision' to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question `until I get the answer that she's already provided once.'" Id. at 605-06, 124 S.Ct. 2601.
In a plurality and concurring opinion, five justices held that this situation was distinguishable from Elstad. See id. at 614-17, 124 S.Ct. 2601 (plurality opinion); id. at 620-21, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment). As reasoned in Justice Kennedy's controlling concurrence, although Elstad "was correct in its reasoning and its result" and "reflects a balanced and pragmatic approach to enforcement of the Miranda warning," the use of a "two-step questioning technique based on a deliberate violation of Miranda" raises a different issue than that considered in Elstad. Id. at 620, 124 S.Ct. 2601. Because such a deliberate two-step technique "distorts the meaning of Miranda and furthers no legitimate counter-vailing interest," Justice Kennedy reasoned that "[t]he Miranda rule would be frustrated were [the courts] to allow police to undermine its meaning and effect" by employing such a strategy. Id. at 621, 124 S.Ct. 2601. Justice Kennedy concluded that "[w]hen an interrogator uses [a] deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps." Id.
In United States v. Williams, 435 F.3d 1148 (9th Cir. 2006), we interpreted the holding in Seibert to be the narrower one reached by Justice Kennedy. Id. at 1157-58 (citing Marks v. United Stales, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)).
Under Seibert, a deliberate "two-step strategy" is the implementation of an intentional procedure for questioning an unwarned suspect, obtaining incriminating statements, and then giving the suspect Miranda warnings before obtaining the same or related incriminating statements. See id. at 620-21, 124 S.Ct. 2601. In United States v. Williams, 435 F.3d 1148 (9th Cir. 2006), we elaborated on what constitutes a deliberate strategy under Seibert. Id. at 1158. We held that, "in determining whether the interrogator deliberately with-held the Miranda warning, courts should consider whether objective evidence and any available subjective evidence . . . support an inference that the two-step interrogation procedure was used to undermine the Miranda warning." Id. Objective evidence may include "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 1159, while subjective evidence may include an officer's testimony that the two-step method was customary under police protocol, id. at 1158. In Seibert, for example, the police interrogation strategy was deliberate because the suspect was under arrest at the time the unwarned statements were made (and therefore it was clear that the suspect should have received Miranda warnings at the start of questioning), see 542 U.S. at 604-05, 124 S.Ct. 2601 (plurality opinion), and the interrogating officer testified that it was police protocol to "question first, then give the warnings, and then repeat the question" until the same answer is given, id. at 606, 124 S.Ct. 2601; id. at 620-21, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment).
In Seibert, Justice Kennedy also provided more explanation of the "specific, curative steps" that eliminate the need to exclude postwarning statements that are the product of the police's deliberate, two-step strategy. Id. at 621, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment). Such steps must be "taken before the postwarning statement is made," and be "designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver." Id. at 622, 124 S.Ct. 2601. Sufficient curative measures include "a substantial break in time and circumstances between the prewarning statement and the Miranda warning" or "an additional warning that explains the likely inadmissibility of the prewarning custodial statement." Id.
Because a court must find deliberateness and the absence of curative measures before excluding postwarning statements, Seibert narrowly operates to suppress a postwarning confession "only in the infrequent case." Id. But even if Seibert is inapplicable, the Supreme Court has advised that "[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad," and that the court must therefore proceed to analyzing under Elstad whether the post-warning confession was involuntary or induced by police coercion. Id.
B
Even under de novo review, Thompson's postwarning confession and video reenactment were admissible under both Seibert and Elstad, because the police were not deliberate in employing a two-step interrogation strategy, the video reenactment followed adequate curative measures, and the post-warning statements were voluntary and not induced by police coercion.
As noted above, Seibert applies only if the police engaged in a deliberate two-step interrogation strategy. Id. On federal habeas review, the district court found that Thompson's post-warning confession was not the product of a deliberate two-step strategy, thereby ending the Seibert analysis. The district court noted that Thompson was not under arrest at the time of the initial questioning, and there was no testimony that the inspectors deliberately with-held Miranda warnings until after Thompson confessed. Rather, the district court found that Thompson did "not cite to the record or present any evidence in support of his assertion that the inspectors in this case deliberately withheld their Miranda advisement until [Thompson] had incriminated himself," and that there was "no evidence in the record concerning an official police policy of deliberately withholding Miranda warnings until a suspect ha[d] confessed." Dct. op. at 21.
It is well established that the issue whether police were acting deliberately under Seibert "is appropriately reviewed as a factual finding for clear error." See United States v. Narvaez-Gomez, 489 F.3d 970, 974 (9th Cir. 2007). To overturn a factual determination for clear error, "a decision must strike us more than just maybe or probably wrong; it must . . . strike us as wrong with the force of a five-week-old, unrefrigerated dead fish." United States v. Bussell, 504 F.3d 956, 962 (9th Cir. 2007) (alteration in original) (internal quotation marks omitted).
Instead of properly analyzing the district court's deliberateness finding under this stringent standard, the majority effectively overrules the district court's factual finding and replaces it with its own appellate factual finding. The majority begins by inexplicably asserting that the district court never made a deliberateness finding at all. Maj. op. at 1017 ("[T]he federal district court [never] made a factual determination whether the warnings given to Thompson were deliberately withheld. . . ."). Such assertion is belied by the district court's decision, which engages in a rather lengthy discussion on deliberateness, setting forth the relevant standard, evaluating the circumstances of Thompson's claim within that standard, and ultimately determining that deliberateness was not present. See Dct. op. at 20-22 n. 4. Indeed, the district court necessarily had to make a factual finding on deliberateness; otherwise, it could not have resolved Thompson's Seibert claim.
Perhaps recognizing that it is on shaky ground, the majority adds in a footnote that the district court's factual finding was actually a legal error. According to the majority, the district court failed to weigh properly the circumstantial evidence suggesting that the police's two-step interrogation method was deliberate. Maj. op. at 1017 n. 9. The majority concludes that it was "legal error for the district court to conclude that the absence of departmental policy or outright admissions of deliberate intent ends the inquiry under Seibert." Maj. op. at 1017 n. 9.
This reasoning is wrong both as a matter of law and fact. First, it is clear from its decision that the district court did not make the legal error the majority attributes to it. The decision shows that the district court was aware of the objective and subjective components of the deliberateness inquiry, even quoting the relevant portion of Williams stating that it "`should consider any objective evidence or available expressions of subjective intent suggesting that the officer acted deliberately to undermine and obscure the warning's meaning and effect.'" Dct. op. at 20 (quoting Williams, 435 F.3d at 1160). Given this proper recitation of the governing law, the majority is wrong to state that the district court applied the improper legal standard to Thompson's claim.
Second, it is clear that the district court made a factual finding on the deliberateness issue: it found that Thompson "d[id] not cite to the record or present any evidence in support of his assertion that the inspectors in this case deliberately withheld their Miranda advisement until [Thompson] had incriminated himself." Dct. op. at 21. The majority's claim that this statement is not a factual finding but "an account of the course of proceedings in that court" is untenable: the majority may disagree with the district court's decision not to weigh the circumstantial evidence more heavily, but there is no reasonable basis for denying that the district court made a factual finding. When a district court rules that there is no evidence in the record on a specific point, it is making a factual finding, not describing the state of the record.
Because it is readily apparent that the district court evaluated the evidence in the record and made a finding of fact, the majority tries yet a third theory, claiming that in any event, the district court's finding was clearly erroneous. The majority bases this conclusion on the inferences it draws from the same facts considered by the district court. While acknowledging that there is no direct evidence of a deliberate policy, the majority puts its own gloss on the police's interrogation strategy and declares that "[t]he only reasonable inference from [the] interrogation sequence is that the officers deliberately withheld Miranda warnings until after obtaining a confession." Maj. op. at 1018. This type of appellate fact finding is an impermissible extension of our judicial role. See, e.g., McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 497, 111 S.Ct. 888, 112 L.Ed.2d 1005 (1991) (observing that a federal appellate court "lack[s] the factfinding and record-developing capabilities of a federal district court"). If the district court committed a legal error in its deliberateness analysis, which it did not, the majority should remand to the district court to reconsider the factual inquiry under the proper legal standard. It should not and cannot proceed to resolve the disputed factual issue itself. See id.
In sum, the majority prefers the inferences it draws from the evidence to those drawn by the district court, and therefore concludes that either the district court made a legal error or its fact finding was clearly erroneous. This is far from the proper standard for overturning a factual determination for clear error. See Bussell, 504 F.3d at 962. Reviewing the matter properly for clear error, there is nothing to suggest that the district court clearly erred in finding that Thompson failed to prove that the inspectors deliberately withheld the Miranda warning until after Thompson incriminated himself. As such, Seibert does not apply to Thompson's claim, see Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment), and the majority errs in concluding otherwise.
Furthermore,' as the district court and every state court to have considered the issue has ruled, Thompson's Miranda waiver and postwarning statements were voluntary and admissible under Elstad. See, e.g., United States v. Polanco, 93 F.3d 555, 560 (9th Cir. 1996) (quoting Elstad, 470 U.S. at 309, 105 S.Ct. 1285). "Voluntariness is a totality of the circumstances inquiry that assesses both the characteristics of the accused and the details of the interrogation." Williams, 435 F.3d at 1153 n. 5 (internal quotation marks omitted). As the state court's description of the facts indicates, supra pages 1021-23, the overall environment of Thompson's interrogation was relatively unintimidating and nonoppressive, Thompson's questioners did not make promises or threats in exchange for his confession, and it is undisputed that the questioners eventually informed Thompson of his Miranda rights and that Thompson waived those rights and continued to make incriminating statements. Thus, under Elstad or Seibert, there is no legal basis to exclude Thompson's post-warning confession.
C
Even assuming that the district court's deliberateness finding was clearly erroneous, and that we could find deliberateness for the first time on appeal, Seibert would still not apply to exclude Thompson's next-day video reenactment of the crime, because sufficient curative measures were taken before the video reenactment confession was made. See Seibert, 542 U.S. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring in the judgment) ("If [a] deliberate two-step strategy has been used, post-warning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.").
The exact curative measures described as satisfactory in Seibert were present here, namely, "a substantial break in time and circumstances between the prewarning statement and the Miranda warning." Id. Thompson's unwarned interrogation began around 11:00 p.m., and the video reenactment did not start until the next day at around 12:45 p.m. In the interim period, Thompson was fed and slept the night in the county jail. In the morning, before relocating from the detention center to the victim's house, he was readvised of his Miranda rights. He was told that he did not have to participate in the reenactment, that it could be used against him in court, and that he could have his attorney present at any time. Thompson read his rights aloud, stated that he understood them, and indicated his willingness to participate in the reenactment.
Because there was a substantial break in time and place between the unwarned statement and the reenactment, Seibert cannot apply to render the confession in the reenactment video inadmissible. See id. As such, the video must be admissible unless it was involuntary under Elstad, id., an argument that Thompson does not make in this appeal.
The majority's dismissal of the curative steps taken between Thompson's initial questioning and the next-day reenactment is erroneous. Though Thompson was given a second set of Miranda warnings the morning of the reenactment, the majority speculates that this advisement was ineffective because "Thompson would have perceived the invocation of his rights as even more futile the next morning." Maj. op. at 1020. And, though the video reenactment occurred after a significant break in time and change in location, the majority surmises that these curative measures were insufficient because Thompson was deprived of a blanket and bed in jail and "was too cold to sleep." Maj. op. at 1020.
These conjectures boil down to reliance on the "cat out of the bag theory," which is to say that the initial Miranda violation put Thompson at such a psychological disadvantage that any later confession must be excluded regardless of any curative steps that were subsequently taken. See Bayer, 331 U.S. at 540-41, 67 S.Ct. 1394. But, as described above, the Supreme Court explicitly rejected this theory in Elstad, wherein the Court held that, with respect to the admissibility of postwarning statements, "there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary." 470 U.S. at 318, 105 S.Ct. 1285. Our subsequent cases confirm that, in the wake of Elstad, "the `cat out of the bag' theory does not apply where a confession is voluntarily made, under circumstances not requiring a Miranda warning, subsequent to a technical Miranda violation." Tawfeq Saleh v. Fleming, 512 F.3d 548, 551-52 (9th Cir. 2008) (citing Medeiros v. Shimoda, 889 F.2d 819, 823-24 (9th Cir. 1989)). The majority's rejection of the curative effect of the substantial break in time and location between the unwarned statements and video reenactment is thus contrary to both Supreme Court and Ninth Circuit precedent.
Because the video reenactment is admissible under Elstad and Seibert, any error in admitting the postwarning confession was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (holding that a Miranda violation is reviewed for harmless error). In the video reenactment, Thompson not only confessed in great detail to the murder, but showed police step by step how he committed the crime. His earlier postwarning confession was therefore cumulative of the reenactment, and its admission, even if erroneous, had no "substantial or injurious effect or influence in determining the jury's verdict." Id. at 623, 113 S.Ct. 1710 (internal quotation marks omitted).
IV
Thompson numerous times admitted to police that he murdered his girlfriend. The two confessions at issue in this appeal were given after proper Miranda warnings. In both, Thompson gave detailed descriptions of the criminal act, and in one Thompson is seen on video reenacting the murder for police at the scene of the crime. Reviewing the issue properly under AEDPA, the state court's decision that these confessions were admissible was not contrary to or an unreasonable application of the Supreme Court's clearly established holding in Elstad. Even reviewing the issue de novo under Ninth Circuit and Supreme Court precedent, both of these confessions were properly admitted at Thompson's trial. With respect, I dissent from the majority's decision to grant Thompson's habeas writ.