Shatzer v. State

Dissenting Opinion by HARRELL, J., which CATHELL, J. joins. I respectfully dissent. There are at least two independent reasons that strike me as sufficient cause not to apply the bright line rule of Edwards 1 to Shatzer’s case A break in time of over two years is enough to disengage the blanket rule of Edwards. Further, a nonpretextual break in custody here makes inappropriate application of the holding in Edwards.

Accordingly, Shatzer’s 2006 statements should have been admitted. I. A Substantial Break in Time Disengages the Protections of Edwards A. The Supreme Court’s Hint The Majority Opinion adopts a reluctant tone because of the lack of direct guidance from the U.S. Supreme Court regarding limitations on the breadth of application of the Edwards rule, noting correctly that the “issue of whether the passage of time could terminate the protections of Edwards remains an open question.” Majority op. at 605, 954 A.2d at 1130. Casting the federal research net a bit wider, however, reveals an analogous line of cases where the Supreme Court indicated ⁶²⁰ that statements taken after a Mirandoi 2 violation may be admitted after a substantial passage of time and finding the existence of curative measures. I would take the hint and conclude here that a substantial break in time relieves the need for Shatzer to receive the protections of Edwards.

In Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985), two police officers went to the home of a young suspect, Elstad, intent on arresting him in connection with a burglary. While one police officer discussed the arrest with the suspect’s mother in another part of the house, the second officer briefly stopped in the living room with Elstad. The latter officer mentioned that he “felt” that Elstad was involved with the burglary. Elstad responded by admitting that he was at the scene of the crime.

The police officers took the suspect to the police station, where he waived his Miranda rights and signed a confession. The trial judge excluded Elstad’s admission, made in his living room, that he was at the scene of the crime, but admitted the confession made after he had received proper Miranda warnings. Elstad was convicted of burglary. The Oregon Court of Appeals reversed the conviction, holding that the signed confession also was inadmissible.

The Supreme Court granted certiorari to consider 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.” Elstad, 470 U.S. at 303 , 105 S.Ct. at 1290 , 84 L.Ed.2d 222 . The Court reversed, reinstating Elstad’s conviction. The Court noted that “the absence of any coercion or improper tactics undercuts the twin rationales-trustworthiness and deterrence-for a broader rule” mandating exclusion of the subsequent, “tainted” confession. Elstad, 470 U.S. at 308 , 105 S.Ct. at 1293 , 84 L.Ed.2d 222 .

The Court reasoned: ⁶²¹ It is 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. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. Elstad, 470 U.S. at 309 , 105 S.Ct. at 1293 , 84 L.Ed.2d 222 . The Court noted that “the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at best.” Elstad, 470 U.S. at 313-314 , 105 S.Ct. at 1295-96 , 84 L.Ed.2d 222 .

It explained that a failure to give a proper Miranda warning could be “cure[d]” by a later Miranda warning: In these circumstances, a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information and thereafter the suspect’s choice whether to exercise his privilege to remain silent should ordinarily be viewed as an “act of free will.” Elstad, 470 U.S. at 310-311 , 105 S.Ct. at 1294 , 84 L.Ed.2d 222 (quoting Wong Sun v. United States, 371 U.S. 471, 486 , 83 S.Ct. 407, 416 , 9 L.Ed.2d 441 (1963)). The Court concluded: 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. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights. ⁶²² Elstad, 470 U.S. at 314 , 105 S.Ct. at 1296 , 84 L.Ed.2d 222 .

The need to iterate a bright line rule or test was avoided, however: Far from establishing a rigid rule, we direct courts to avoid one; 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. Elstad, 470 U.S. at 318 , 105 S.Ct. at 1297-98 , 84 L.Ed.2d 222 .

In Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004), the Supreme Court addressed the validity of a “two-step” interrogation. Seibert was arrested in connection with the arson of her mobile home and resulting death of a mentally-ill teenager who resided with her family. She was questioned at the police station for 30 to 40 minutes without being given Miranda warnings. She made several incriminating statements during that time, including an admission that she knew that the victim “was meant to die in the fire.” The police then allowed her a 20 minute break for coffee and cigarettes.

Before the questioning resumed, the police officer read her the Miranda warnings. Seibert waived her Miranda rights. The police then resumed exploration of her pre-warning admissions. She confirmed that the victim “was supposed to die in his sleep.” After being charged with first degree murder, Seibert moved for the suppression of both the pre-warning and post-warning statements.

The police officer testified at the suppression hearing that Seibert’s “ultimate statement was ‘largely a repeat of information ... obtained’ prior to the warning.” Seibert, 542 U.S. at 606 , 124 S.Ct. 2601, 2606 , 159 L.Ed.2d 643 . He further testified that this “two-step” strategy was a police interrogation technique in which he had been trained: ⁶²³ At the suppression hearing, Officer Hanrahan 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.” Seibert, 542 U.S. at 605-606 , 124 S.Ct. 2601, 2606 , 159 L.Ed.2d 643 . The trial court excluded the pre-warning statements, but admitted her post-warning statements. Seibert was convicted of murder.

The Supreme Court reversed her conviction. Justice Souter wrote the plurality opinion, in which Justices Stevens, Ginsburg, and Breyer joined. Justice Kennedy wrote a concurrence, as did Justice Breyer. Justice O’Connor dissented, joined by Chief Justice Rehnquist and Justices Scalia and Thomas.

The plurality opinion summarized the questions raised by the “two-step” interrogation procedure: The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.

Seibert, 542 U.S. at 611-612 , 124 S.Ct. 2601, 2610 , 159 L.Ed.2d 643 . The plurality answered its first rhetorical question regarding the “effectiveness” of the warning given in Seibert : Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would ⁶²⁴ hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. Seibert, 542 U.S. at 613 , 124 S.Ct. 2601, 2611 , 159 L.Ed.2d 643 . The Court implied, however, that the proximity in time of the two interrogations was a factor in determining whether the Miranda warnings retained their effectiveness. “[I]t would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.” Seibert, 542 U.S. at 614 , 124 S.Ct. 2601, 2611 , 159 L.Ed.2d 643 .

The Court distinguished the “two-step” procedure in Seibert from the unwarned admission in Elstad . The Seibert Court began its analysis of Elstad by noting the benign nature of the interrogation in Elstad : This Court noted that the pause in the living room “was not to interrogate the suspect but to notify his mother of the reason for his arrest,” and described the incident as having “none of the earmarks of coercion,” The Court, indeed, took care to mention that the officer’s initial failure to warn was an “oversight” that “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interrogation’ or ... may simply have reflected ... reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent’s mother.” Seibert, 542 U.S. at 614 , 124 S.Ct. 2601, 2611 , 159 L.Ed.2d 643 (citations omitted). Continuing, the Seibert Court stated, “[I]t is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally.” Seibert, 542 U.S. at 615 , 124 S.Ct. 2601, 2612 , 159 L.Ed.2d 643 . Comparing the two cases, the Seibert plurality crafted a list of factors that should be considered in evaluating “two-step” interrogations: ⁶²⁵ The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.

In Elstad , it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. Seibert, 542 U.S. at 615-16 , 124 S.Ct. 2601, 2612 , 159 L.Ed.2d 643 . Those factors, applied to the facts in Seibert required suppression of the post-warning statements. At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings.

The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited.

In particular, the police did not advise that her prior statement could not be used. Nothing was said or done to ⁶²⁶ dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way Officer Hanrahan set the scene by saying “we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.

Seibert, 542 U.S. at 616-617 , 124 S.Ct. 2601, 2612-13 , 159 L.Ed.2d 643 (citations and footnotes omitted). Justice Breyer, although joining the plurality opinion, authored a concurrence as well. He stated that, “in my view, the following simple rule should apply to the two-stage interrogation technique: Courts should exclude the ‘fruits’ of the initial unwarned questioning unless the failure to warn was in good faith.” Seibert, 542 U.S. at 617 , 124 S.Ct. 2601, 2613 , 159 L.Ed.2d 643 (Breyer, J., concurring). Justice Kennedy’s concurrence is particularly important, as he represents the fifth vote for the judgment in Seibert. 3 See, e.g., United States v. Liddy, 478 F.2d 586, 586 , (D.C.Cir.1972) (Leventhal, J., writing separately) (“I begin with the premise ⁶²⁷ that the Branzburg[v. Hayes, 408 U.S. 665 , 92 S.Ct. 2646 , 33 L.Ed.2d 626 (1972)] decision is controlled in the last analysis by the concurring opinion of Justice Powell ( 408 U.S. at 709 , 92 S.Ct. at 2670 ) as the fifth Justice of the majority.”).

He began by noting that “[e]vidence is admissible when the central concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction.” Seibert, 542 U.S. at 618-619 , 124 S.Ct. 2601, 2614 , 159 L.Ed.2d 643 (Kennedy, J., concurring). Justice Kennedy then compared Elstad -with the facts in Seibert . In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning.

An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning.

See Elstad, 470 U.S., at 309 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (“It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings ... so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.”). That approach would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the ... testimony.” Id., at 308 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 . This case presents different considerations. The police used a two-step questioning technique based on a deliberate ⁶²⁸ violation of Miranda.

The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice SOUTER points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise justify its use.

Seibert, 542 U.S. at 620-621 , 124 S.Ct. 2601, 2615 , 159 L.Ed.2d 643 (Kennedy, J., concurring) (omissions in original). Justice Kennedy, however, disagreed with the plurality’s multi-factor test. He noted that he would instead “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 , 124 S.Ct. 2601, 2616 , 159 L.Ed.2d 643 (Kennedy, J., concurring). His test was: If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made.

Curative measures should 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. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Seibert, 542 U.S. at 622 , 124 S.Ct. 2601, 2616 , 159 L.Ed.2d 643 (Kennedy, J., concurring). Thus, we find in Seibert three different tests offered to determine if a statement, after an unwarned admission, is ⁶²⁹ admissible: the plurality’s multi-factor test; Justice Breyer’s good faith test; and Justice Kennedy’s curative measures test.

Under all of them, Shatzer’s statements made after the 2006 Miranda warnings would be admissible. 1. Plurality Test Applying the factors articulated by the plurality in Seibert , it is clear that Shatzer’s statements would be admissible. The 2006 interrogations at issue in the present case cannot be viewed as an extension of the 2003 interrogation. The two-year break in time itself is sufficient.

In addition, there was a change in interrogators and location. It may not be said that the interrogations here were “systematic, exhaustive, and managed with psychological skill.” 542 U.S. at 616 , 124 S.Ct. 2601, 2612 , 159 L.Ed.2d 643 . The Seibert plurality analysis inquires: “Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier?” 542 U.S. at 612 , 124 S.Ct. 2601, 2610 , 159 L.Ed.2d 643 .

The second question, modified to reflect the facts of this case, should be framed as: “Could the 2006 Miranda warnings reasonably convey that Shatzer could choose to consult an attorney before talking even if he had exercised that same right over two years earlier?” I would answer both of these questions in the affirmative. There can be no question that Shatzer was aware that he had a meaningful choice regarding his right to consult with counsel. 4 2. Justice Breyer’s Good Faith Test The actions of the interrogators here meet the definition of good faith. There is no evidence, nor could there be, that the ⁶³⁰ interrogators conspired to avoid the requirements of Miranda by delaying an interrogation 31 months.

The officers’ actions were taken in the utmost good faith. 3. Justice Kennedy’s Curative Measures Test Justice Kennedy would require that, where police officers willfully avoid necessary Miranda warnings, subsequent statements must be excluded unless “curative measures are taken.” “[A] substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances----” Seibert, 542 U.S. at 622 , 124 S.Ct. at 2616 , 159 L.Ed.2d 643 . In Shatzer’s case, there was over a two-year break in time and a new Miranda warning. The goal of the “curative measures” is “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.

In the present case, the police immediately ceased interrogation upon Shatzer’s invocation of his Miranda rights. Two years later, they again read him those rights, which he voluntarily waived. A reasonable person in Shatzer’s position, and indeed Shatzer himself, would “understand the import and effect of the Miranda warning.” Thus, under Justice Kennedy’s analysis, the narrowest analysis forming the five-vote majority in Seibert , Shatzer’s post-warning statements would be admissible even if they were obtained as a result of-a deliberate “two-step” interrogation. B. Distinction between Seibert and the Present Case The obvious distinction between Seibert and the present case is that Seibert involved “unwarned” statements given ⁶³¹ prior to Miranda warnings, warnings deliberately withheld by the police in order to conceal the rights available to the suspect.

Shatzer’s case does not. Shatzer invoked his Miranda rights, and the interrogation immediately was halted. Over two years later, the police gave Shatzer another Miranda warning, and he waived his Miranda rights. As noted above, under any of the prevailing tests in Seibert , especially Justice Kennedy’s, Shatzer’s later statements would be admissible.

Under the Majority Opinion’s analysis here, Shatzer’s later statements are excluded. This is an unwarranted result. The Seibert tests permit the introduction of statements even where the police mislead deliberately the suspect in order to avoid the protections afforded by Miranda. According to the Majority Opinion, by contrast, where the police act in good faith, timely give Miranda warnings, and honor a suspect’s assertion of Miranda rights, a suspect’s statements over two years later, even if proceeded by a Miranda warning, are inadmissible.

The situation in Seibert was a far more egregious violation of the spirit and letter of Miranda than the technical, good faith oversight by the latter investigator in the present case. Yet, the statements in Seibert receive more favorable treatment. Today, the Majority Opinion essentially says to the police officers who conducted the 2006 interrogations, “We are sorry you acted in good faith and honored both the spirit and letter of Miranda. Because you did so, the statements are inadmissible.

If only you had withheld deliberately the Miranda warning, as in Seibert , then perhaps those statements would be admissible following a new Miranda warning and similar break in time.” What type of police conduct is encouraged by treating statements obtained by deceit and concealment of rights more favorably than those statements obtained by honoring a suspect’s Miranda rights? I take note of the Supreme Court’s acceptance of statements preceded by egregious Miranda violations in Seibert and would hold that a substantial break in time and a second Miranda warning disengages the need for Edwards’ protections where the police have acted in good faith. ⁶³² C. Policy Goals of the Miranda!Edwards The Majority Opinion applies the per se Edwards rule, refusing to recognize a break in time exception, without apparent consideration of the policy objectives behind the rule and whether they are furthered by strict application here. The Majority Opinion correctly notes that “[t]he primary purposes of the Edwards rule are to ensure that any statement made in subsequent interrogation is not the result of coercive pressures, to prevent police from badgering a defendant, and to conserve judicial resources by relieving courts from having to make difficult determinations of voluntariness.” Majority op. at 593-94, 954 A.2d at 1123. None of those laudable goals are furthered by the outcome reached in the Majority Opinion.

There is no contention here, nor could there be, that Shatzer’s statements were the product of coercion. The police officers conducted the 2006 interrogations within permissible legal bounds. There is no evidence that Shatzer did not understand the nature of the interrogation or his legal rights. In Elstad , the Court noted that “the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at best.” Elstad, 470 U.S. at 313-314 , 105 S.Ct. at 1295-96 , 84 L.Ed.2d 222 .

I can conceive of no plausible argument that Shatzer suffered a “psychological disadvantage” because the police interrogated him a second time two years after he invoked his right to consult counsel. The present case has nothing to do with police badgering. Detective Hoover, without actual knowledge that Shatzer previously had requested an attorney, interrogated Shatzer over two years after the original request. Two interrogations in two years is not “badgering.” See Marcy Strauss, Reinterrogation, 22 Hastings Const.L.Q. 359, 396-97 (1995) (“In other words, the fear in Edwards that repeated attempts to question the suspect will exacerbate the already significant compulsion to speak is significantly lessened when the police make no effort to question the suspect for a substantial period of ⁶³³