Doing the Interrogation “Two-Step” Again
Robert C. Phillips
DDA (Ret.)
April, 2016
Over three decades ago, the United States Supreme Court decided the case of Oregon v. Elstad,[1] where it held that when law enforcement officers talk to an in-custody suspect, a few un-Mirandized questions and answers do not necessarily poison a later Miranda[2] waiver and confession. Clever police interrogators, seeing a potential loophole in the admonishment and waiver requirements of Miranda, latched onto this decision like ice cream on warm apple pie, thinking they could pervert the Elstad rule into a viable interrogation tactic and increase the odds of a waiver and confession.
Think about it. How nice would it be to be able to revert to the good old pre-Miranda days when a police interrogator didn’t have to try to convince a criminal suspect that remaining silent, or to at least to take advantage of an offer of free legal advice before talking, was really in his best interest? Under Elstad, an officer could cleverly seek a full confession without complicating things with that pesky old Miranda admonishment and waiver rule. Then, once the proverbial “cat (is) out of the bag,”[3] the officer could dutifully comply with the admonishment and waiver rules of Miranda and get the confession for a second time. Using such a tactic, the average beaten suspect, unschooled in the psychological pressures at work, would likely see no reason to invoke his rights once he’s already told officers everything. At trial, then, although the jury would never hear the first, illegally obtained confession, the second confession would be admitted into evidence against him.
If you think that sounds too easy, you’d be right. The Supreme Court wasn’t about to let police officers circumvent the Miranda requirements in such a manner. Labeled as the “two-step interrogation technique” (or “. . . strategy”), such a practice was condemned over a decade ago in the landmark case decision of Missouri v. Seibert.[4]
In Seibert, the defendant was coaxed into a full confession without the benefit of a Miranda admonishment and waiver, after which she was given a short 15-minute smoke break. Then, after finally having her Miranda rights to silence and a free attorney read to her, she was interrogated again, all the while referring back to her first, inadmissible confession, inextricably tying the two together. In support of the defendant’s conviction, the State of Missouri argued that such a technique was proper under Elstad in that, as required, both confessions were uncoerced. The Supreme Court, however, in condemning this “two-step interrogation technique,” limited the Elstad holding to its facts.[5]
In Elstad, upon first confronting the defendant in his home, the arresting officers engaged in some minimal, spontaneous, un-Mirandized questioning; i.e., “Do you know why we’re here?”, “Do you know (the victim)?”, and “I think you were involved.” Caught off guard, the defendant responded with the highly incriminating admission that; “Yes, I was there.” The defendant was then moved to the sheriff’s station where he was properly advised and a full, admissible confession obtained.[6]
The Elstad Court rejected the notion that the failure to administer Miranda 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 wavier is ineffective for some indeterminate period.”[7] But the Court didn’t foresee the cleverness of police interrogators, and didn’t seek to warn against perverting the rule of Elstad into the subsequently developed two-step interrogation strategy that finally had to be confronted in Seibert.
In Seibert, the Supreme Court pointed out that by pushing Elstad to far, a police interrogator runs the risk of “rendering (the subsequent) Miranda warnings ineffective by waiting for a particularly opportune time to give them;” i.e., “after the suspect has already confessed.”[8] After having once confessed, “a reasonable person in the suspect’s shoes would not (italics added) have understood (such belatedly given Miranda warnings) to convey a message that she (continued to retain) a choice about continuing to talk.”[9] In effect, the subsequent waiver is not “knowingly and intelligently made,”[10] with the suspect, in effect, having been tricked into waiving his or her rights.
Seibert couldn’t have been more clear. Yet, perhaps hoping that Seibert was but a nightmare that dissolved into the figment of one’s imagination upon waking in the morning, some police officers continue to push the bounds of this decision with repeated efforts to perhaps change the Supreme Court justices’ collective minds with yet another attempt to slide a two-step interrogation by the courts. The latest judicially reported effort in this regard is described in the Ninth Circuit Court of Appeal’s decision of Reyes v. Lewis.[11]
On January 10, 2006, fifteen-year-old Adrian Reyes, the defendant and a high school freshman, while walking home from La Sierra High School in Riverside County, was accosted by a carload of “South Side Riverside 51-50” gang members. When Reyes told them, in response to their challenge, that he claimed a street gang affiliation with “Delhi,” one of the gangsters punched Reyes in the eye. Reyes had in fact recently moved to Riverside from Santa Ana in Orange County where the Delhi gang does its thing.
The next day, Reyes, with a different carload of gangsters—this time his own homies—confronted Derek Ochoa, a La Sierra High School senior, in an apparent effort at retaliation for the previous day’s humiliation. Reyes was purportedly in the back seat while Andres Munoz—his older cousin—drove. At some point during this contact, Reyes was alleged to have gotten out of the car and shot Ochoa three times, killing him.[12]
The resulting homicide investigation eventually led to Reyes and Munoz as suspects. After an informal contact with Reyes by homicide investigators from Riverside Police Department at his aunt’s house, during which he denied any knowledge of the shooting, and the later execution of a search warrant with minimal results, Reyes was eventually contacted a second time and asked to voluntarily accompany the investigators, unaccompanied by an adult, to the police station to answer a few questions.
Although attempts were made to make this one-hour interrogation non-custodial by telling Reyes that he was free to terminate the contact at will, the questioning became somewhat intense with pointed accusations of guilt, false claims that witnesses and other evidence tying him to the shooting existed that did not, and the repeated ignoring of a “sniffling” Reyes’ attempts to end the questioning. At no point was Reyes advised of his rights under Miranda. Being unsuccessful at cracking Reyes’ adamant attestations of innocence, the officers eventually gave up and took Reyes to his mother’s house.[13]
The next morning, Reyes was picked up again and taken to the San Bernardino Sheriff’s station for a polygraph examination; something he had earlier volunteered to submit to. At the station, an experienced, expert polygraphist administered the test. Again, no Miranda warnings were given.
After the test, Reyes was told by the examiner that he’d “failed.” The examiner then pressured him to “cooperate” and to “give details about what he had done,” inferring that it would be better for him to do so. Showing signs that he was beginning to weaken, Reyes expressed some concerns about the potential punishment which he might be facing. The examiner assured him that “(f)ifteen year olds don’t go to state prison;” a promise that was soon proven to be anything but true.[14]
Eventually, the original detectives came back into the room and took over the questioning. Still without any mention of Miranda, the same high-pressure interrogation tactics used the day before were begun again, but with the additional ploys of minimizing the potential punishment (“How many 15 year olds do you know that go to jail for 25 years?”—Tried as an adult, he was eventually sentenced to 50 years to life) and of providing him with a face-saving suggestion that perhaps Ochoa had a gun and that Reyes had to shoot him in self-defense. (Ochoa had no gun.)
Finally, giving up any pretense of innocence, Reyes agreed that Ochoa had come up to him and was reaching for a gun (“He was reaching for it” and “He had a grip on it.”), and that he had to shoot him (“I don't know. I just shot.”). This admission came at some seven pages into the transcript of this interview. After another 35 more pages of ingratiating, “friendly” discussions on unrelated topics, conducted “in a nonconfrontational, sympathetic way,” Reyes was driven back to the Riverside police station—some fifteen miles, or maybe 30 minutes away—where he was put into an interview room and where preparations were made for the second step of this Seibert-forbidden interrogation scheme.
At the police station, the detectives reminded Reyes that he had already “came clean” (do you see where the “cat out of the bag” argument is starting to take shape?), but that there were more questions the DA’s Office wanted answered, so they were going to talk some more “just to, to clarify stuff.” “Can we talk about the stuff we talked about earlier today?” But first, and for the first time, Reyes was finally read his Miranda rights which he said he understood and agreed to waive. Reyes thereafter repeated his confession, giving the prosecution presumptively admissible statements of culpability which were ultimately used against him at trial.[15]
Charged in adult court (along with his cousin, Munoz) with first degree murder, Reyes made a motion to suppress his confession. The trial court determined that defendant’s initial confession, made at the San Bernardino Sheriff’s station after the polygraph test, was made while Reyes was in custody but without the benefit of a Miranda advisal and waiver. Although held to be voluntarily obtained, it was suppressed due to the Miranda violation.
However, finding that neither Reyes’ pre-admonishment nor his post-admonishment interrogations to be coercive (a questionable conclusion, given the high-pressure tactics that were used[16]), the judge refused to suppress the post-warning confession made at the Riverside police station. At trial, the evidence conflicted as to whether Reyes or Munoz was the shooter. The jury eventually determined, presumably based upon his confession, that it was Reyes who pulled the trigger. Sentenced to 25 years to life for the murder plus another 25 years for the firearm enhancement, Reyes appealed. His conviction was upheld at the California appellate court level and through subsequent habeas corpus writs, both state and federal. Reyes appealed the denial of his writ of habeas corpus made to the federal district court.[17]
The Ninth Circuit Court of Appeal reversed. As he did in the trial court and with the California appellate courts, defendant argued that (1) his confession was inadmissible as the product of coercion, and (2) that it was also obtained in violation of the principles announced in the Supreme Court’s decision of Missouri v. Seibert. The Court found that the interrogating officers in this case did in fact violate Seibert, making it unnecessary to discuss the coercion issue.
Per the Ninth Circuit, irrespective of whether both the pre- and post-admonishment interrogations were coercive in nature, the Seibert rule may still be violated whenever a two-step interrogation technique is used (1) intentionally, and (2) where the interrogators do nothing to properly explain to the suspect that his first confession is inadmissible and that there is still some value in him choosing to invoke should he decide to do so. Specifically, as relevant in this case, the voluntariness of the first (i.e., the un-Mirandized) confession is irrelevant to the finding of a Seibert violation, so that issue need not be decided.[18]
As stressed in Seibert, “a voluntary postwarning confession must be excluded where law enforcement officials deliberately withheld Miranda warnings until after obtaining an in-custody confession, and where insufficient curative measures had been taken to ensure that the suspect understood the meaning and importance of the previously withheld warnings.” Only where there is no intentional Seibert violation, or, if there is, then sufficient “curative measures” are taken, is the admissibility of post-warning statements to be governed by the principles of Elstad. [19]
The only issue in Reyes v. Lewis, therefore, given the admitted lack of curative measures taken, was whether the detectives intentionally employed a two-step interrogation technique as condemned in Seibert. Some of the factors to consider in making this determination include (but are not limited to) “the timing, setting and completeness of the prewarning interrogation, the continuity of police personnel, and the overlapping content of the pre- and postwarning statements.”[20] Recognizing that officers will seldom admit to purposely using a two-step interrogation technique, the Court must consider the “objective circumstances.”
In this case, three experienced homicide detectives (plus an equally experienced polygraph examiner) conducted two (three, if you consider the polygraph examiner’s questioning) separate interrogations that were described by the Court as “systematic, exhaustive, and managed with psychological skill.”[21] When finally admonished, nothing was said that might “ensure that Reyes understood ‘the import and effect of the Miranda warning and of the Miranda wavier’”[22] (i.e., “curative measures”). To the contrary, after two (or three) exhaustive unwarned interrogations, culminating in Reyes’ confession, the record reflects some 36 pages of “nonconfrontational, sympathetic” small talk, apparently intended to put defendant at ease. When finally advised of his Miranda rights, the detectives “played down their importance” by telling defendant that the district attorney wanted some more information and that he (the detective) just wanted to “clarify stuff” already admitted to. Defendant was also told that it was then necessary to read him his rights because he was in a room with the door locked and that he was no longer free to leave, and not because those rights were something that were vitally important to what evidence might be used against him at trial. “To a reasonable person not trained in the law, let alone a fifteen-year-old high school freshman, these stated reasons were hardly an effective means of conveying the fact that the warning he was about to give could mean the difference between serving life in prison and going home that night.”[23]
And when one of the detectives did finally read defendant his rights, it included the following: “Do you understand each of these rights that I've explained to you? Yeah? OK. Can we talk about the stuff we talked about earlier today?”, tying the waiver inextricably in with that “cat” that had already been “let out of the bag.” The Court found, therefore, that the “psychological, spatial, and temporal break between the unwarned and the warned interrogations” to be insufficient to cure the Seibert violation, with the same officers involved throughout for both days, and the same interrogation site (the Riverside police station) beginning and ending the process.[24]
In sum, the Court concluded that not only was the violation of Seibert intentional, but also that “far from taking ‘curative measures,’ they (the detectives) took affirmative steps to ensure that Reyes did not ‘understand the import and effect’ of the Miranda warning he was finally given at the Riverside police station.”[25] The lower court was therefore ordered to grant defendant’s writ of habeas corpus, and that defendant was to be given a new trial.
Seibert and it’s condemnation of the “two-step interrogation technique” has been around now for over a decade. If the facts in this case are anywhere near as described in the Court’s written decision, there’s really no excuse for three experienced, homicide detectives to be ignorant of the fact that you just can’t do what was so obviously and intentionally done in this case and expect to walk away with any admissible statements from the defendant.
The other issue not discussed in this case, it being irrelevant to the eventual outcome, was the voluntariness of Reyes’ confession irrespective of the validity of the eventual waiver. In In re Elias V.,[26] discussed in the previous “Did You Know” (“Self-Incrimination and Mind Games; The Interrogation of Minors”), the California Appellate Court’s exhaustive written decision criticized many of the interrogation practices that were also employed in this case, at least when used against minors. The goal is to avoid a coerced, and thus unreliable, confession. While it is readily apparent that Reyes in this case was in fact present at the scene of the murder, and at the very least a co-conspirator, it is also noted that he was led into admitting to being the shooter by the detective providing him with an easy, face-saving suggestion that the victim was armed and reaching for a gun when in fact no such gun existed. Under circumstances of this case, based upon Reyes’ comments, including his expressed concern for not getting his cousin, Andres Munoz, into trouble, and where there was substantial other evidence presented at trial that Munoz was in fact the actual shooter, one has to call into question Reyes’ admissions to pulling the trigger.
[1] (1985) 470 U.S. 298
[2] Miranda v. Arizona (1966) 384 U.S. 436
[3] Saleh v. Fleming (9th Cir. 2008) 512 F.3rd 548, 551-552
[4] (2004) 542 U.S. 600
[5] Id., at pp. 614-615
[6] Oregon v. Elstad, supra, at p. 301
[7] People v. Harris (1989) 211 Cal.App.3rd 640, 650;
See also People v. Bradford (1997) 14 Cal.4th 1005, 1033, 1039
[8] Missouri v. Seibert, supra, at p. 611
[9] Id., Syllabus
[10] See Edwards v. Arizona (1981) 451 U.S. 477, 486, fn. 9;
and Oregon v. Bradshaw (1983) 462 U.S. 1039, 1045
[11] (9th Cir. Aug. 14, 2015) 798 F.3rd 815
[12] Id., at p. 818
[13] Id., at pp. 818-820
[14] Id., at pp. 820-821
[15] Id., at pp. 821-823
[16] See In re Elias V. (2015) 237 Cal.App.4th 568
[17] Reyes v. Lewis, supra., at pp. 823-825
[18] Id., at p. 828
[19] Ibid.
[20] Id., at p. 831, citing United States v. Williams (9th Cir. 2005) 435 F.3rd 1148, 1159
[21] Ibid.
[22] Id., at p. 832
[23] Id., at pp. 832-833
[24] Id., at p. 833
[25] Id., at p. 834
[26] In re Elias V., supra.
