• Miranda and a Knowing and Intelligent Waiver
• The Two-Step Missouri v. Seibert Interrogation Tactic

The use by law enforcement of a two-step interrogation tactic by obtaining a pre-Miranda-admonishment confession, followed by a Miranda admonishment and waiver and a second confession, violates the rule that a Miranda waiver, to be valid, must be knowingly and intelligently made.

Defendant Byron Silim Sumagang and 20-year-old Carole Sangco were boyfriend-girlfriend despite having a tumultuous relationship.  Their relationship was complicated by the fact that Sangco was severely depressed, had reoccurring thoughts of suicide, and was addicted to methamphetamine.  Their relationship was further complicated by incidents of physical abuse perpetrated by defendant against Sangco, as later testified to by friends of the couple.  Then, on November 30, 2014, police responded to a 911 hang-up call directing them to a remote rural area in Monterey County.  The first sheriff’s deputy on the scene found a sleeping defendant sitting in a car with Sangco’s head in his lap. Sangco, with visible injuries to her face and neck, was quickly determined to be deceased.  Upon waking defendant, he became visibly upset and crying, telling the deputy that he was not supposed to wake up.  He made other spontaneous statements that were consistent with the physical evidence at the scene, indicating that the two had consumed copious amounts of drugs and alcohol and that defendant had tried to set fire to the car they were in.  Defendant made other statements indicating that he had attempted to commit a murder-suicide; that Sangco told him she wanted him to kill her but that he had “forgot(ten) to kill myself, too.”  Defendant was taken into custody and booked. Various experts later testified to Sangco’s probable cause of death.  The forensic pathologist who autopsied Sangco’s body testified that Sangco had died from asphyxiation due to smothering with manual strangulation.  She also testified, however—with a toxicology test coming back positive for methamphetamine and cocaine—that drugs may have hastened Sangco’s death.  A second expert used by the prosecution opined that the cause of death was asphyxiation due to suffocation, strangulation, or both.  An expert hired by the defense, however, disagreed.  He testified that the cause of death was not entirely clear; that it was possible that while the neck compression may have been a contributing factor, it was also possible that Sangco had survived that trauma, dying instead from drug toxicity.  This expert believed she may not have died until some five to twenty minutes after the neck compression.  A big part of the prosecution’s case, however, was defendant’s subsequent confession as obtained by Detective Terry Rahiri, the lead detective on the case and a 22-year veteran of the Monterey Sheriff’s Office.  In a two-part interrogation (the admissibility of which became the issue in this appeal), defendant admitted that Sangco had quit breathing as he strangled her.  Convicted by a jury of first degree murder and sentenced to 25-years-to-life, defendant appealed.

The Sixth District Court of Appeal Reversed.  Pretrial, defendant filed a motion asking the trial court to suppress his confession.  During the hearing on this motion, Detective Rahiri testified that he interrogated defendant in two separate sessions, defendant fully confessing each time.  No Miranda admonishment was used during the first interrogation.  After a two-minute break, however, the interrogation was begun anew with defendant first being advised of his Miranda rights and a waiver obtained.  With periodic references to what defendant had earlier admitted, this second interrogation resulted in defendant repeating his confession. Detective Rahiri testified at the motion to suppress that although he knew that defendant was in custody—being handcuffed, wearing jail clothes, and obviously not free to leave—he didn’t feel that a Miranda admonishment was necessary during the first session because, not yet having the benefit of an autopsy report, he merely wanted to find out what defendant would say about Sangco’s death.  During this testimony by the detective, the prosecutor’s objections to the defense attorney’s questions relative to why the detective didn’t think a Miranda admonishment was necessary were consistently sustained by the trial court.  Finally, however, the trial court allowed defense counsel’s question about whether the detective knew “that by asking (defendant) questions before Miranda that you were violating his Miranda rights.” Detective Rahiri responded, “Not at that time, but later on I did.” Detective Rahiri added that he did not come to this realization until “way after the interview,” after talking with counsel and thinking about the case.  The trial court, finding the detective’s testimony to be credible, suppressed defendant’s confession obtained during the first session, but admitted into evidence his second, post-Miranda waiver confession.  The issue on appeal became whether the trial court erred in admitting the post-Miranda waiver portion of the two-part interrogation; i.e., whether the detective violated the rule as established by the U.S. Supreme Court in Missouri v. Seibert (2004) 542 U.S. 600.  The rule of Seibert precludes the admission of a confession that comes about as the product of a “two-step” interrogation tactic, during which the police deliberately question an in-custody suspect without the benefit of a Miranda admonishment and waiver, and then, after obtaining a confession, start over in a second interrogation after a Miranda waiver is obtained.  The thinking behind the Seibert rule is that an in-custody suspect will likely believe that once the “cat is out of the bag,” there is no purpose in doing anything other than confessing a second time, thus raising the issue as to whether the eventual Miranda wavier, once obtained, was in fact “knowingly and intelligently” made.  The Court noted that there are five factors to consider when determining whether a police interrogator has violated Seibert:  (1) The completeness and detail of the questions and answers in the first round of interrogation; (2) the overlapping content of the two statements; (3) the timing and setting of both the first and the second interrogation; (4) the continuity of police personnel; and (5) the degree to which the interrogator’s questions treated the second round as continuous with the first.  (Seibert, at p. 615.)  In considering these factors, the Court here held that regardless of any good faith mistake at the outset, at some point Detective Rahiri determined that he needed to give the Miranda warnings.  Thus, the question became whether the government proved (the state having the burden of proof) by a preponderance of evidence, that after coming to that realization (i.e., that an admonition and waiver was required) that Detective Rahiri didn’t deliberately withhold the requisite warnings as part of a calculated strategy to foil Miranda.  The Court held here that the Attorney General did not meet this burden, given the fact that the record lacked evidence of the detective’s subjective mental processes (the trial court having sustained the prosecution’s objections to defense counsel’s questions, the answers to which would have provided this information).  The record, however, did support an inference of deliberateness on the part of the detective.  During the post-warning interrogation the detective repeatedly referred back to defendant’s pre-warning statement, which was an implicit suggestion to defendant that the mere repetition of the earlier statement was not independently incriminating.  Also, no curative measures were taken.  For instance, there was no significant break in time (no more than two minutes) or other circumstances separating the two parts of the interview.  There were no circumstance that would permit defendant to distinguish the two contexts and that the interrogation had “taken a new turn.” No other admonishments were provided at the start of the second post-warning interrogation to effect that the first confession was irrelevant.  Lastly, defendant was not advised that the prior statements could not be used against him if he chose to remain silent or deny his crime at that point.  Additionally, the use of the two-step interrogation tactic, whether deliberate or not, did not serve any legitimate purpose.  The completeness and detail of the questions and answers pre-warning weighed in favor of exclusion, as did the overlapping content of the two statements, the similar timing and setting of the two parts, the continuity of police personnel, and the degree to which the questions treated the second round as continuous with the first.  The Court therefore concluded that the two-stage interrogation at issue in this case violated Seibert.  Further, the admission of the post-warning statement was not harmless because, with expert testimony to the effect that Sangco may have died from a drug overdose as opposed to being strangled, the balance of circumstances did not establish premeditation beyond a reasonable doubt. The matter was therefore remanded to the trial court with instructions to suppress defendant’s confession.

In so ruling, the Court found it irrelevant (or perhaps unbelievable) that a 22-year veteran of the Sheriff’s Department conducted the initial questioning in this case in true ignorance of whether Sangco had in fact died as the result of some criminal act on defendant’s part.  At the very least, the Court felt that he should have recognized earlier in the process that he did in fact have a homicide on his hands and proceeded accordingly from that point on.  Despite the Court’s doubts, I don’t think it’s illogical to believe that Detective Rahiri, when he first sat down with defendant, really didn’t know if he had a crime or not and merely wanted to find out what the defendant had to say about it. Bottom line is that I really don’t believe Detective Rahiri set out to intentionally violate the Seibert’s two-step interrogation rule.  But that having been said, there’s a good argument to be made to the effect that when confronted with circumstances such as this, where it is at least recognized that the victim’s death is suspicious, a police interrogator needs to assume the worst; i.e., that a crime has been committed and that any questioning needs to be preceded by a Miranda admonishment and waiver.  Also, once realizing that defendant did in fact murder Sangco, the detective could have avoided the problem by what the Court refers to as “curative” efforts, such as by telling defendant that his initial un-Mirandized statements were not admissible against him (obtaining his express acknowledgement of that fact), and that he needed to think about that in deciding whether to waive his Miranda rights before questioning began anew. Only in that manner are you going to obtain a knowing and intelligent waiver of a suspect’s Fifth Amendment previlege.  The apparent contrary U.S. Supreme Court authority, by the way, is Oregon v. Elstad (1985) 470 U.S. 298.  In Elstad, defendant—during his initial arrest—volunteered un-Mirandized admissions to being involved in a burglary before giving a later, full, post-Miranda-admonition, confession.  Elstad is differentiated from Seibert, however, by the lack of a purposeful intent on the part of the police to subvert Miranda.  Attorneys for both the defense and the prosecution need to be familiar with Elstad whenever confronted with a Seibert, two-step interrogation issue.  The two cases are easily differentiated.