Saturday, December 11, 2010

Two Steps Forward

United States v. Capers, No 07-1830-cr (2d Cir. December 1, 2010) (Pooler, Hall CJJ, Trager, DJ)

This decision, which was sub judice for nearly two and one-half years, attempts to sort out the confusion left by the Supreme Court’s decision in Missouri v. Seibert, 542 U.S. 600 (2004).

Seibert involved a two-step interrogation strategy that was calculated to circumvent Miranda. The Missouri officers there had been trained to withhold Miranda warnings and question a suspect until he confessed. They would then Mirandize him, secure a waiver, and elicit a second confession. A four-justice plurality held that this two-step procedure violated Miranda because a suspect “hearing warnings only in the aftermath of interrogation and just after making a confession” would “hardly think he had a genuine right to remain silent.” The plurality identified five factors to be weighed in analyzing the effectiveness of post-interrogation Miranda warnings.

Justice Kennedy concurred in the judgment but believed that the five-factor test was too broad because it would cover “both intentional and unintentional two-stage interrogations.” His approach was to ask whether the officer had used a “deliberate two-step strategy” in a “calculated way” to undermine
Miranda and “obscure” the “significance” of the warnings when given. If not, then, the only question would be whether the second statement was voluntary. But if so, then a court would have to consider whether any curative measures had been taken to ensure that a “reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning” and waiver.

Here, the defendant, a postal worker suspected of stealing money orders from Express Mail envelopes, was apprehended after he and a co-worker took a test letter containing money orders into a trailer and an alarm indicating that the package had been opened went off. Postal inspectors arrested Capers, handcuffed him, and brought him to a supervisor’s office. An inspector, named Hoti, questioned him for five minutes without Miranda warnings and he confessed.

Two other inspectors then transported Capers to another postal facility, where they handcuffed him to a chair in an interview room. About ninety minutes after the initial un-Mirandized interrogation, Hoti read Capers his rights and Capers signed a written waiver and confessed again. After a hearing, the district court suppressed this confession and, on the government’s appeal, a divided Second Circuit panel affirmed.

The court’s analysis began with its major post-Seibert decision, United States v. Carter, 489 F.3d 528 (2d Cir. 2007), which held that Seibert applies where law enforcement officers use a “deliberate two-step strategy” to obtain a post-warning confession. Capers' case, then, turned on the meaning of “deliberate.”

The majority began by observing that since, in Seibert, the police officers admitted that they had been trained to use a Miranda-avoiding technique, “Justice Kennedy had no reason to explore how a court should determine when a two-step interrogation strategy had been executed deliberately.” A Ninth Circuit decision, Williams, identifying this same problem, looks to whether “objective” and “available subjective evidence” support “an inference that the two-step interrogation procedure was used to undermine” Miranda. Similarly, an Eleventh circuit case, Street, looks to the “totality of the circumstances,” including the “timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of” the two confessions.”

Here, the court “join[ed] our sister circuits in concluding that 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.” On the “unsettled question of which party bears the burden of proving deliberateness or absence thereof,” the court held that the burden rests on the prosecution to disprove deliberateness, but only by a preponderance of the evidence.

Here, the government did not meet that burden. Hoti's proffered reasons for not Mirandizing Capers before the first interview were that he (1) wanted to make sure he recovered the stolen money orders and (2) wanted to quickly determine whether Caper’s co-worker was involved so that, if he was not, he could release him. However, “[n]either of these reasons ... justifies delaying a Miranda warning once it is obvious that a suspect is in custody.” There is no Miranda exception for evanescent evidence; the “only legitimate reason to delay intentionally a Miranda warning until after a custodial interrogation has begun is to protect the safety of the arresting officers of the public.”

While “inexperience” or a “rookie mistake” may save a case under Seibert, here there was no evidence that Hoti was inexperienced and significant evidence that he did not make a mistake. He had been a New York City police officer for three years before he was a postal inspector, and had been trained to give Miranda warnings. He was also clearly in a position to Mirandize Capers - since the sting was planned, he “had time to think through what procedural steps he would need to take following arrest in order to build his case for prosecution.”

Ultimately, and quite significantly, since the circuit does not usually do this, the majority found Hoti's reasons for not reading Capers his rights “to lack not only legitimacy, but also credibility.” It was doubtful that Hoti, who had witnessed the co-worker assist Capers, would have let the co-worker go if Capers had exonerated him. Nor was the evidence truly evanescent; Capers was arrested immediately after the test package alarm went off and never left the the area where he was caught.

The majority also cited objective evidence in support of its conclusion. The initial confession was almost entirely complete, and there was “considerable overlap” in the content of the two statements. The “circumstances surrounding” the two sessions of the interrogation - their timing, and the continuity of the cast of interrogating officers - were all “indicative of a deliberate two-step interrogation.”

Finally, no “curative measures intervened” to restore Capers' opportunity to voluntarily exercise his Miranda rights.” So far, only two such measures have been identified. A “substantial break in time and circumstances” or “an additional warning” explaining that the first statement was inadmissible. Neither of those circumstances was present here.

Judge Trager dissented, finding that the majority’s approach “undermines Justice Kennedy’s controlling opinion” and “replaces it with” the test proposed by the “non-controlling” plurality opinion. His view was that a “more faithful application of Justice Kennedy’s Seibert concurrence requires a conclusion that Capers’ post-warning statements are admissible” because the inspector “did not deliberately utilize a two -step interrogation technique."



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