United States v. Pacheco-Lopez

MERRITT, J., delivered the opinion of the court, in which COLE, J., joined. GRIFFIN, J. (pp. 430-38), delivered a separate dissenting opinion.

*422OPINION

The defendant, Pedro Pacheco-Lopez (Lopez), challenges the district court’s denial of his request to suppress certain statements made prior to his arrest. The defendant argues that his initial statements—made prior to receiving his Miranda warnings—should have been suppressed because they were responses to a custodial interrogation and do not fall under the “booking exception” to Miranda. Additionally, the defendant argues that his later admission, made after receiving his warning, resulted from impermissible “Miranda-in-the-middle” questioning. Because the booking exception applies narrowly to biographical questions and has rarely been applied outside of a police station, we hold that the defendant’s first statements should have been suppressed. We similarly find that Lopez’s post-Miranda admission should be suppressed. Accordingly, the district court’s decision is REVERSED.

I. Facts

On March 13, 2006, undercover officers arrested Gerardo Castro-Acosta and others on Clay Avenue in Louisville, Kentucky, during an arranged “controlled buy” of sixteen kilograms of cocaine. The individuals involved in the drug deal had arrived in a white Subaru car and a red Dodge pickup truck. After making the arrests, the police obtained a search warrant for 6006 Cooper Chapel Road, the address in Louisville for the cars registered under Acosta’s name. When the police arrived at the home, they found the defendant, Lopez, and another individual identified as Bernal-Bajo. The officers had no information concerning either of the men when they were discovered at the residence.

The officers executing the search warrant immediately handcuffed Lopez and placed him at the kitchen table for questioning. The exact sequence of events during the questioning is unclear, however, because each of the three officers who testified at the July 10, 2006, suppression hearing recalled the events in a slightly different manner.1 The district court judge relied primarily on DEA Agent Mark Slaughter’s testimony after finding that Kentucky State Trooper Lagrange’s testimony was “somewhat imprecise” and that Agent Brian Bester was not present. In accordance with the district court’s factual finding, as well as the fact that one officer admitted to remembering the facts incorrectly, we give greatest weight to Officer Slaughter’s account.

Oftestified that the detainee, Lopez, was initially asked questions related to securing the residence and to his identity. Slaughter, who does not speak Spanish, discovered that the detainees did not speak English and obtained translating assistance from Lagrange. Slaughter asked Lopez his name and where he lived; the detainee responded that he lived in Mexico and not at the Cooper Chapel Road residence. Slaughter next asked Lopez when he arrived at the house and how he had gotten there. Lopez responded that he had driven from Mexico the previous Sunday in a white Ford pickup truck; he then volunteered the keys to the pickup. At that point, Lopez was advised of his Miranda rights in Spanish by Lagrange. Immediately thereafter, Slaughter asked Lopez whether he or Bernal-Bajo had brought any cocaine to the residence. Lo-*423acknowledged that he had transported cocaine. Slaughter and Lagrange then took Lopez to a bedroom for further questioning,2 at which time Lopez indicated that he did not want to speak further with the investigators.3 No further questioning occurred. Slaughter then went to the garage to assist in an inspection of the white pickup, where officers discovered that the drive shaft of the truck had been hollowed out to accommodate cocaine.4

Lopez entered a guilty plea conditioned on the outcome of his motion to suppress the statements. The district court judge, describing the characterization of the pre-Miranda questions as the “key factor” in the case, held that the initial interaction was not an “interrogation.” Dist. Ct. Op. at 2, 2006 WL 2355846, at *2. The judge’s description of the initial questions as “relatively innocuous” and only important with the benefit of “20/20 hindsight” informed this ruling. Id. As a result, “the additional questions asked and answered after the Miranda warning [were] not subject to suppression under Seibert.” Id. at 3, 2006 WL at 2355846, at *2.

Lopez filed a timely appeal and argues that the initial questions did constitute an “interrogation” and that the answers, along with the subsequent, post-Miranda statements, should be suppressed.

II. Interrogation and the “Booking Exception”

In cases involving a motion to suppress, this Court reviews the district court’s factual findings for clear error legal conclusions de novo. United States v. Meyer, 359 F.3d 820, 824 (6th Cir.2004). Additionally, when reviewing a district court’s denial of a motion to suppress, we review the evidence in the fight most favorable to the United States. United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998).

Before the police may gate a suspect in custody,5 they must first read the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). An “interrogation” comprises “not only [] express questioning, but also any words or actions on the part of the police that the police know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Miranda warnings are not, however, required for questions “reasonably related to the police’s administrative concerns,” such as the defendant’s name, address, height, weight, eye color, date of birth and current address. Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990); United States v. Clark, 982 F.2d 965, 968 (6th Cir.1993) (“ordinarily ... the routine gathering of biographical data for booking purposes should not constitute interrogation under Miranda ”).6 This “booking exception” to Miranda requires the reviewing court to carefully scrutinize the facts, as *424“[e]ven a relatively innocuous series of questions may, in light of the factual circumstance and the susceptibility of a particular suspect, be reasonably likely to elicit an incriminating response.” United States v. Avery, 717 F.2d 1020, 1025 (6th Cir.1983). Where the booking exception does not apply to statements made before administration and voluntary waiver of Miranda rights, those statements are “irrebuttably presumed involuntary” and must be suppressed. United States v. Mashburn, 406 F.3d 303, 306 (4th Cir.2005) (citing Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)).

This case requires further delineation of the line between questions relating to the processing of an arrest that are biographical and questions of an investigatory nature. The latter, but not the former, constitute “interrogation” and implicate the Fifth Amendment and the attendant Miranda warning requirement. Compare Avery, 717 F.2d at 1024 (question was part of a “routine procedure to secure biographical data” and thus not interrogation), and United States v. King, 165 F.3d 29, 1998 WL 708707 (6th Cir.1998) (per curiam) (holding that a defendant’s response to a question about his address was not protected by Miranda, notwithstanding the fact that pohce made use of the statement, because it was not intended to elicit incriminating statements), with United States v. Soto, 953 F.2d 263 (6th Cir.1992) (per curiam) (suppressing a response to a question about what a defendant was doing with drugs), and United States v. Cole, 315 F.3d 633, 636 (6th Cir.2003) (suppressing defendant’s initial response to the question, “Whose gun is this?” but denying the motion to suppress later, voluntary statements), and United States v. Downing, 665 F.2d 404 (1st Cir.1981) (suppressing a question regarding the location of an airplane).

Lopez’s pre-Miranda statements cannot be described as merely biographical, but instead resulted from an interrogation subject to the protections of Miranda. Some of the initial questions would not—in isolation—implicate Miranda; at the very least, asking the defendant his name is the type of biographical question permitted under the booking exception. But asking Lopez where he was from, how he had arrived at the house, and when he had arrived are questions “reasonably likely to elicit an incriminating response,” thus mandating a Miranda warning. The fact that Officer Slaughter did not actually know that Lopez was involved in criminal activity does not affect our analysis. The officers who questioned Lopez did know that the shipment of cocaine involved in the arranged buy had arrived from outside the state during the previous week. Consequently, asking questions about when and how Lopez arrived at a household ostensibly linked to a drug sale, as well as his origin, are relevant to an investigation and cannot be described as related only to securing the house or identifying the defendant. Furthermore, the officers immediately ascertained that Lopez did not speak English and learned shortly thereafter that he was from Mexico, factors making him “particularly susceptible” to questioning before Miranda warnings. These facts implicate Miranda’s concern about the danger of coercion resulting from “the interaction of custody and official interrogation.” See Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (discussing the purpose of Miranda and contrasting a situation where a defendant does not “feel compelled to speak by the fear of reprisal for remaining silent”).

The location, the nature of the questioning and the failure to take notes or document the defendant’s identity also support our conclusion that the booking exception *425is not applicable in this case. In the majority of cases where we have applied the booking exception, see, e.g., Avery, 717 F.2d 1020, we have done so for questioning that occurred at the police station.7 Application of the booking exception is most appropriate at the station, where administrative functions such as bookings normally take place. Extending the exception to the type of questioning here—which occurred in a private home during the investigatory stage of criminal proceedings— would undermine the protections that Miranda seeks to afford to criminal suspects. Additionally, situations subject to the booking exception usually involve active documentation of a defendant’s answers, whereas none of the officers who questioned Lopez recorded any of his responses. Such documentation—including arrest-related paperwork or notes—would be expected during questioning about a defendant’s background, as the purpose of such inquiry is to gather sufficient data to identify the defendant (i.e. for record-keeping). Here, no documentation occurred, supporting our conclusion that the questions were part of an investigatory interrogation.

Lopez’s initial statements resulted from a “custodial interrogation,” not biographical questioning subject to the booking exception; consequently, his Miranda rights were implicated before the police actually read the warning. Because the police did not administer the Miranda warning for these initial questions, the answers are “presumed compelled” and “excluded at trial in the State’s case in chief.” Oregon v. Elstad, 470 U.S. 298, 317, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985).

III. Mira«da-in-the-Middle Interrogations

Midway through the interrogation, the police officers read Lopez his Miranda rights in Spanish. Immediately thereafter, they asked him whether he had brought cocaine with him from Mexico, to which he responded in the affirmative. The district court ruled that this statement should be admitted because it found that the earlier line of questioning did not constitute an interrogation. See Missouri v. Seibert, 542 U.S. 600, 608-09, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (administering Miranda warning before a suspect makes a custodial confession admissible so long as there was proper waiver). Because this conclusion was incorrect, and the earlier statements must be suppressed, the question then becomes whether Lopez’s later, post-Miranda statement should similarly be suppressed or whether it is admissible in the prosecution’s case-in-chief. The Supreme Court’s two principal cases addressing midstream Miranda warnings both compel our conclusion that Lopez’s post-warning statements must be suppressed. Compare Seibert, 542 U.S. at 611-12, 124 S.Ct. 2601 (focusing on whether the midstream warning was “effective”) (plurality opinion), with Elstad, 470 U.S. at 310, 105 S.Ct. 1285 (analyzing whether the latter statement was voluntary, an inquiry based on whether the taint of the earlier compelled statements dissipated through the passing of time or changed circumstances).

In Seibert, the Supreme Court addressed an interrogation technique where*426in the police first purposefully interrogated an unwarned suspect, then apprised her of her Miranda rights, and finally asked similar questions again.8 Specifically, the defendant mother, whose 12-year-old son suffered from cerebral palsy and died in his sleep, feared prosecution and chose to conceal the death by burning the family’s mobile home and incinerating the body. To avoid the appearance that the son had been left unattended, the defendant arranged for Donald Rector, a mentally ill teenager living with the family, to stay in the house. Donald then died in the fire. Five days later, the police questioned Seibert at a hospital. On specific instructions from headquarters, the investigating police officer refrained from giving Miranda warnings when he first interrogated Seibert. After more than 30 minutes of questioning, during which time the officer repeatedly referenced Donald’s death, Seibert admitted that she knew that Donald would die in the fire. Seibert then received a 20 minute coffee break. Upon her return, the officer read her Miranda warning, turned on a tape recorder, and then proceeded to ask the same questions. Seibert ultimately confessed to Donald’s death.

Five justices agreed to suppress both the pre- and post-Miranda statements, while four dissenting justices thought both statements were permissible under the Court’s earlier, voluntariness test espoused in Oregon v. Elstad. Of the five justices who reached the same result, a plurality of four framed the underlying issue as follows: the “threshold question in [such a] situation is whether it would be reasonable to find that the warnings could function ‘effectively’ as Miranda requires.” Seibert, 542 U.S. at 612, 124 S.Ct. 2601 (emphasis added). The effectiveness inquiry focused, in turn, on whether the suspect “had a real choice about giving an admissible statement at that juncture.” Id. “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 the interrogation as distinct from the first, unwarned and inadmissible segment.” Id. (emphasis added). The plurality believed that the warnings in Seibert’s case did not operate effectively and identified five factors, discussed infra, that must be analyzed to ensure that such a warning is effective in every situation where police administer Miranda mid-interrogation.9 Id. at 615, 124 S.Ct. 2601.

In a concurring opinion, Justice Kennedy similarly disproved of the two-step process at issue in the case, noting that it would “allow police to undermine [the Miranda rule’s] meaning and effect,” but rejected the plurality’s test and instead limited his critique to two-step situations where the “technique is used in a calculated way to undermine the Miranda warning.” Id. at 622, 124 S.Ct. 2601 (Kennedy, J., concurring). According to Justice Kennedy, any statements resulting from an intentional ask first, question later technique must be suppressed.10 In all other *427cases, Elstad—with its focus on the volun-tariness volunboth the pre- and post-Miranda post-Micontinue to control the analysis. conThe four dissenting justices in Seibert rejected application of a new test and simply applied Elstad, finding that the findstatements were sufficiently voluntary. We suffithat Lopez’s statements must be excluded under both Seibert and Elstad.11

According to the Seibert plurality, the relevant factors for determining whether a midstream Miranda warning could be effective are: (1) the completeness and detail involved in the first round of questioning; (2) the overlapping content of the statements made before and after the warning; (3) the timing and setting of the interrogation; (4) the continuity of police personnel during the interrogations; and (5) the degree to which the interrogator’s questions treated the second round as continuous with the first. Seibert, 542 U.S. at 615, 124 S.Ct. 2601. The results of the effectiveness inquiry inform the subsequent analysis: “If yes [to the question of effective warning], a court can take up the standard issue of voluntary waiver and voluntary statement; if no, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning.” Id. at 612, 124 S.Ct. 2601 (emphasis added). An analysis of the sequence of events surrounding Lopez’s interrogation compel our conclusion that the warning was ineffective, and that his statements were thus the result of a single, unwarned sequence of questioning.

The third, fourth and fifth factors, in particular, inform our determination that the warning in this case was ineffective, as the same officers conducted the interrogation in the same location without any break between the two sets of questions. The interrogation was continuous—the break only lasted for the amount of time it took the investigators to read Lopez the Miranda warning. In such a situation, administration of the Miranda warning could not lead a suspect to a meaningful understanding that he could cease answering the questions at that point in time. Lopez’s interrogation thus implicates the exact problem described by the Supreme Court Seibert: “Unless the warnings could place a suspect who has just been interrogated in a position to make [] 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.” 542 U.S. at 612, 124 S.Ct. 2601 (emphasis added). There was no break in the questioning or any effort by the police to ensure that Lopez understood that his prior statements could not be used against him; consequently, we believe that any suspect in Lopez’s situation would have *428viewed the two series of questions as part of one sequence.

The first and second factors of the plurality’s test also support our finding that the warning was ineffective. While the exact questions did not overlap, the post-Miranda question resulted from the knowledge gleaned during the initial questioning—’that Lopez had driven from Mexico to Kentucky (i.e. from a country serving as a cocaine conduit to a state where no cocaine is produced), via pickup truck, during the preceding week. That is, the question regarding the transportation of cocaine was not anomalous, which might support a finding that the warning was effective, but was the next logical question based on the earlier statements. All five factors—and particularly factors three, four and five—demonstrate that the Miranda warning was ineffective. As a result, Lopez’s admission must be suppressed under Seibert’s effectiveness test.

Our dissenting colleague suggests that Lopez’s decision to stop talking after his confession revealed that the warning was effective: “by invoking his right to silence” the defendant conveyed his understanding of his Miranda rights in the “clearest, most unequivocal way possible.” Dis. Op. at 432. As noted supra, the record is ambivalent as to whether the defendant specifically invoked his right to silence as an exercise of his Miranda rights or merely indicated that he did not want to speak further to investigators.12 It is not difficult to imagine reasons for why Lopez ceased talking after he was taken to the bedroom, none of which relate to the effectiveness of the Miranda warning with regards to the earlier statement. Perhaps, as Officer LaGrange stated at the suppression hearing, Lopez stopped speaking because Bernal-Bajo “was giving him the look” and trying to intimidate him. JA 74. The facts of this case are distinguishable from the two cases—both of which discuss the issue of waiver and not effectiveness13 —upon which the dissent relies for the proposition that the invocation of the right to silence necessarily indicates that the defendant understood those rights. See United States v. Allen, 247 F.3d 741, 766 (8th Cir.2001); Pickens v. Gibson, 206 F.3d 988, 995 (10th Cir.2000). In finding a voluntary waiver, the Eight Circuit in Allen noted that the defendant “initiated the request to speak” with the officer, had been warned of his rights four times, and had specifically “indicated that he understood [his rights]” prior to confessing. Id. The case is hardly analogous to the present situation. In the instant case, Lopez received the warning only once and did not initiate any of the interactions with the investigators; moreover, the record is ambivalent as to whether he even understood those rights. The dissent’s use of retrospection to find an effective warning is also directly contrary to the Supreme Court’s admonition that courts should “presume that a defendant did not waive his rights [and that] the prosecution’s burden is great” to demonstrate such a waiver. North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). In Pickens, the Tenth Circuit emphasized *429the defendant had, prior to his confession, demonstrated that he understood his rights: “[the defendant’s] initial refusal to make a statement and his request for an attorney indicate he understood ... both nature and consequences of his right to remain silent and his right to counsel.” Pickens, 206 F.3d at 996 (internal quotations omitted). In the instant case, Lopez’s confession occurred before the interaction in which the defendant purportedly indicated his understanding of his rights.

Equally important, looking at the defendant’s decision to stop speaking (which he conveyed in the bedroom rather than the kitchen—i.e. under different circumstances) presents an issue that is not before us. That is, the thrust of the effectiveness inquiry focuses on whether the defendant had a choice “at [the] juncture” of the statement, Seibert, 542 U.S. at 611-12, 124 S.Ct. 2601, not on whether the defendant’s later behavior casts retrospective insight into his state of mind at the time of the statement. Had Lopez confessed in the bedroom or specifically invoked his right to silence after further explanation by police, then perhaps the effectiveness issue would be a slightly closer call. See id. at 615, 124 S.Ct. 2601 (“In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience ... [and] the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.”). But in this case, the Miranda warning was given literally in the middle of questioning, a situation that is “likely to mislead and ‘deprive a defendant of knowledge essential to his ability understand the nature of his rights and consequences of abandoning them.’ ” at 613-14, 124 S.Ct. 2601 (quoting Moran v. Burbine, 475 U.S. 412, 424, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). To hold otherwise elevates form over substance by treating “two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them the middle.” Id. at 614, 124 S.Ct. 2601. Additionally, adopting the dissent’s position risks undermining important constitutional rights through retrospective inferences, a result the Supreme Court has previously rejected in the context of Miranda. Cf. Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984).

Lopez’s statement be suppressed under the Supreme Court’s earlier opinion in Oregon v. Elstad,14 As the dissenting justices in Seibert explained, Elstad requires that “if [a suspect’s] first statement is shown to have been involuntary, the court must examine whether the taint dissipated through the passing of time or a change in circumstances.” Seibert, 542 U.S. at 605, 124 S.Ct. 2601 (citing Elstad, 470 U.S. at 310, 105 S.Ct. 1285) (emphasis added). Elstad thus requires that “[w]hen a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” Elstad, 470 U.S. at 310, 105 S.Ct. 1285. When reviewing Lopez’s con*430fession, all three of these factors suggest a finding that the coercion has carried over. As discussed supra, there was no change in the time or place of the interrogation, or the identity of the interrogators. Further, when determining voluntariness, “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.” Id. at 318, 105 S.Ct. 1285. Here, there is insufficient evidence in the record that Lopez was aware that his earlier confession would not be admissible against him, nor do the circumstances suggest that the second confession was separate from the first confession in any way.15

Accordingly, Lopez’s post-Miranda statements must be suppressed.

IV.

For the foregoing reasons, the district court’s opinion is REVERSED, and the defendant’s motion to suppress GRANTED.