Deliberate two step strategy to circumvent Miranda not used here


Law enforcement officers suspected that Christopher Taing was involved in a drug trafficking operation in Midland, Texas. Officer Joseph Beltran and DEA Special Agent Jaye Johnson followed Taing as he drove away from a suspected drug transaction and then parked in a hotel parking lot. They followed him through the lobby and into the hotel’s hallway.

Taing carried a backpack. The officers ordered Taing to stop and show his hands. He did not comply. Taing reached under his waistband, which led the officers to suspect he was reaching for a weapon, so they detained him in the hallway.

The officers recorded what transpired on a body camera. As Taing was handcuffed on the floor, the officers asked him if he had a weapon. He said yes, and after frisking him, the officers recovered a loaded Glock 17 pistol from Taing’s waistband. They asked his room number and whether there were additional people or guns in the room. Taing told the officers a room number, and he said no one and no weapons were inside.

Then the officers asked Taing if he had anything illegal in his backpack. He responded that there was “some ice” inside. Taing gave the officers his consent to search the backpack, and, relevant here, they found approximately four ounces of methamphetamine. At that point, the officers read Taing his Miranda rights for the first time.

The officers took Taing to the police station. An audio recording reveals that they gave a second Miranda warning, and Taing confirmed that he understood his rights. Officer Beltran began an interrogation as follows: “Obviously, you got caught up with some meth and a pistol, okay, it’s not a secret, we know what’s going on. So right now, your opportunity is now to either make yourself look honest or to make yourself look like a liar. So, what happened tonight?” Over the next thirty minutes, Taing confessed that he paid $1,000 for the methamphetamine, sold methamphetamine for the previous two months, and asserted he was carrying the Glock in his waistband for protection.

The court granted Taing’s suppression motion in part. It suppressed Taing’s un-Mirandized statement that he had “some ice” in his backpack, but the court ruled that his subsequent warned confession, which took place at the station house, was admissible.

Taing was then convicted of possession with intent to distribute fifty grams or more of methamphetamine in violation of 21 U.S.C. § 841 and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). On appeal, he argued the Mirandized statement was taken illegally. The 5th affirmed.


A suspect is subject to custodial interrogation when he is placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.

When officers question the same suspect in multiple custodial interrogations, 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. The Supreme Court’s decision in Oregon v. Elstad, 470 U.S. 298 (1985), explained that 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.

However, if deliberately coercive or improper tactics were used in obtaining the initial statement, Elstad is not applicable. In Missouri v. Seibert, 542 U.S. 600 (2004), a divided Supreme Court addressed the consequences of a deliberate two-step strategy that was designed to circumvent Miranda. Officers relied on the defendant’s pre warning statement to obtain the post warning statement used against her at trial by “cross-examining” her with the unwarned statements during the Mirandized interview.

If a deliberate two-step strategy has been used, post warning statements that are related to the substance of pre warning statements must be excluded unless curative measures are taken before the post warning statement is made. The 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.

After Seibert, courts determining the admissibility of warned statements that follow unwarned statements must first assess whether the officers deliberately used a two-step strategy to circumvent Miranda. If law enforcement authorities did employ such a strategy, courts evaluate whether appropriate curative measures were taken. If there was no deliberate two- step strategy, however, the admissibility of the warned statements is governed by the principles of Elstad.

In Nunez-Sanchez, we applied the Seibert and Elstad frameworks to affirm the denial of a motion to suppress a warned confession that followed an unwarned interrogation. Officers stopped the defendant and asked him his name, age, and immigration status, to which he responded that he had entered the country illegally. They then gave the Miranda warnings, and he confessed to several drug and firearm offenses.

As to the Seibert inquiry, we determined that there was nothing in the circumstances or the nature of the questioning to indicate that the officers used a deliberate two-step strategy, emphasizing that the defendant was calm and cooperative and the police did not act with aggressiveness or hostility. Turning to Elstad, we concluded that the defendant did not allege that the police had used coercive tactics during his confessions, and therefore they were voluntary and admissible.

Here, the district court determined that the police failed to provide Taing with the necessary Miranda warnings when he was first questioned about the contents of his backpack at the hotel. The court suppressed Taing’s statement that he had “ice” in his bag, but it admitted Taing’s subsequent, Mirandized confession at the station house. The district court reasoned that the officers did not use a deliberate two-step interrogation strategy, so it applied the Elstad voluntariness inquiry. The court concluded that Taing’s warned statements were voluntary, so it admitted them.

We agree with the district court that the officers in this case did not employ a deliberate two-step strategy to circumvent Miranda. The officers never cross-examined Taing with his unwarned statement that there was “ice” in his backpack. They referenced only the physical evidence that was discovered at the scene—the pistol and drugs.

The cooperative nature of Taing’s interrogations provide additional support for our conclusion that there was not a deliberate two-step strategy in this case. In Seibert, the unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. Here, however, Taing’s unwarned interrogation took place at the hotel, not the station house, and it was relatively brief.

The officers had just handcuffed Taing after he reached for his waistband, and he was lying on the floor of the hotel’s hallway. They asked him whether he had any weapons, and they discovered his pistol. Then they asked him which hotel room was his and whether other people or weapons would be found there, as well as whether there was anything illegal in his backpack. As in Nunez-Sanchez, the officers also never displayed any aggressiveness or hostility during the interviews. We therefore conclude that nothing in the circumstances or the nature of the questioning indicate coercion or a deliberate attempt to employ a two-step strategy.

Turning to the Elstad inquiry, we must assess whether the second statement was also voluntarily made by examining the surrounding circumstances and the entire course of police conduct with respect to the suspect. In cases such as this, 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.

As in Nunez-Sanchez, Taing failed to allege that the officers used any coercive tactics to obtain his warned confession. The audio evidence shows the tone of the interrogation was conversational. Taing was never verbally or physically threatened. The officers also read Taing his Miranda rights and Taing confirmed that he understood them before they began the questioning. We therefore agree with the district court that Taing’s Mirandized confession was not coerced, and we conclude that the court correctly denied Taing’s motion to suppress his confession.