Facts
In 2020, while driving to the Odessa Police Department (“OPD”), Luis Fernandez called 911 claiming that he was armed and being chased by multiple people. Corporal Ian Kapets and Detective Donny Rocha ran from inside the OPD building to the parking lot, where they observed Fernandez pulling halfway into a parking space while holding both of his hands out of his truck’s window. Rocha approached Fernandez and observed a firearm in his lap. Rocha removed the firearm, and Kapets pulled Fernandez out of his truck and patted him down.
Officer Yolanda Medrano responded to the scene in her patrol vehicle, arriving around 1:41 p.m. When she arrived, Rocha stated that he did not know what was going on, only that Fernandez had claimed he was being chased and was in possession of a firearm. Medrano then approached Fernandez, who was not handcuffed or otherwise restrained, and Kapets asked, “So what’s going on, like, can you walk me through who’s chasing you and all that stuff?” Fernandez responded only that “they” were following him.
Kapets then asked Fernandez whether there was anything illegal in his truck, and Fernandez replied that his truck had already been searched by sheriff’s deputies he had encountered on the way to the police station. Kapets requested permission to search the truck, but Fernandez again referred to the sheriff’s deputies having already searched it.
At that point, Medrano directed Fernandez to sit on the ground. Kapets then asked him, “Did you use any sort of drugs? I mean, be honest with me. I’m just trying to figure out what’s going on here.” Fernandez replied, “I been drinking, and yeah, I used cocaine.” Fernandez explained that he had used cocaine the night before to stay awake because he feared that unidentified people were going to get him. Kapets and the other officers then encouraged Fernandez to light his cigarette so that he could calm down and they could help him if he was, in fact, being chased.
Kapets, Fernandez, and another officer continued to speak as Medrano spoke with other officers on scene and peered into the truck. At one point, Rocha stated to Medrano that “Fernandez used coke, so he’s intoxicated with a firearm.” Pieces of Fernandez’s conversation can be heard in the background of the bodycam video for about the next minute. Fernandez stated that he had “just a beer earlier” that day. One of the officers replied that “something” was going on, possibly “more drugs.” An officer asked Fernandez to remove his sunglasses so that he could see Fernandez’s eyes, which the officer described as “like olives, they’re giant.” Fernandez’s mouth was also dry, as if he had “cotton mouth.”
About two minutes later, Kapets asked Fernandez where he got his cocaine from. Fernandez did not explicitly answer, but he clarified that his truck did not contain any additional cocaine or paraphernalia. Kapets, Rocha, and Medrano began to discuss what crime they might charge Fernandez with and whether they would inventory search his vehicle. The officers initially appeared to settle on charging Fernandez with a DWI, but Rocha brought up the possibility that Fernandez could be arrested for the federal offense of being a drug user in possession of a firearm.
While Kapets, Rocha, and Medrano discussed Fernandez’s drug use and potential charges, Officer Tyler Thelen attempted to administer field sobriety tests to Fernandez. After Fernandez failed to complete a proper field sobriety test, he was handcuffed. Kapets approached Fernandez as he was being handcuffed and asked, “Are you addicted to cocaine?” and “How long have you used cocaine for?” Fernandez responded that he wanted to try rehab; that he had used cocaine for “one month, two months, five years, ten years, just recently”; and that he had used cocaine the past three days. Kapets then made a call to determine the requirements to charge a suspect with being a drug user in possession of a firearm. At around 1:52 p.m., Kapets stated, “I will probably Mirandize him and do a confession.”
Meanwhile, Fernandez was placed in the back seat of Thelen’s patrol vehicle. When someone opened the rear hatch of this vehicle, Fernandez requested to speak to that officer’s supervisor. Sergeant Patrick Chadwick eventually opened the back door of the patrol vehicle and began to speak to Fernandez. Fernandez advised that he was in fear for his life from the cartel and that he could not say anything “out here.” Chadwick and Fernandez spoke for a couple minutes about his story and Chadwick eventually stated that he wanted to “read [Fernandez] this,” presumably referring to his Miranda rights. Fernandez interrupted and pleaded with Chadwick to “please understand” what was going on, referencing his wife in Mexico and his fear for his life.
At 2:00 p.m., Chadwick read Fernandez his Miranda rights. Fernandez confirmed that he understood his rights and stated that he would only discuss topics that would not get him in more trouble. Chadwick and Fernandez continued their conversation in the patrol vehicle. Fernandez repeated the information previously provided, including his place of residence, that he was being chased, that he encountered sheriff’s deputies, that he had the rifle in the vehicle with him, where he purchased the firearm, and that the officers needed to speak with his wife. Chadwick asked Fernandez when he last used narcotics. Fernandez responded that he used cocaine the previous night, that he had not slept in two days, and that he used cocaine because he believed he was being chased. Chadwick repeated to Fernandez the reason for his arrest and continued to ask him why he believed he was being chased.
At roughly 2:20 p.m., Fernandez was removed from the patrol vehicle and placed in an interview room at OPD. Kapets entered the room and began questioning Fernandez after confirming that he had been Mirandized. As relevant here, Kapets asked Fernandez how long he had used cocaine for. Fernandez explained that he had used it sporadically recently, but he maintained that he was not an addict.
The district court granted in part and denied in part Fernandez’s motion to suppress this evidence. Specifically, it ruled admissible those statements that Fernandez made before being handcuffed and those he made after being Mirandized. But it ordered suppressed those statements that Fernandez made while handcuffed through the time he received his Miranda warnings. Put differently, the district court suppressed the statements Fernandez made between 1:48 p.m. and 2:00 p.m.
Fernandez was convicted of being a user of a controlled substance in possession of a firearm and sentenced to 10 months. On appeal, he argued the police used an improper two-step, “question first” strategy. The 5th affirmed.
Analysis
A. Seibert
In Missouri v. Seibert, 542 U.S. 600 (2004), 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. Officers cannot employ “the two-step” interrogation technique in a calculated way to undermine the Miranda warning.
The district court held that the officers in this case did not employ a deliberate two-step strategy. We agree with the district court.
For one, nothing about the circumstances or nature of the officers’ initial questioning indicates that coercion or other improper tactics were used. Other than his belief that he was being chased by cartel members, Fernandez was calm and cooperative, and the officers did not act with aggressiveness or hostility.
Moreover, confronting the defendant with his inadmissible pre-warning statements and pushing him to acknowledge them would provide further evidence that the officers were using the two-step strategy in a calculated way to undermine the Miranda warning. Merely asking the defendant about the same subjects pre- and post-Miranda is not forbidden. See Gonzalez.
Here, the record does not show that the officers confronted Fernandez with his prewarning statements to deliberately circumvent Miranda. Instead, they merely responded to evidence that they acquired while investigating Fernandez’s claim that he was being chased. In contrast, the post-warning interview in Seibert resembled a cross- examination. Since the officers did not confront Fernandez with his pre-warning statements, and there is no other evidence of a deliberate attempt to employ a two-step strategy, Seibert does not apply.
B. Elstad
Because officers did not employ the proscribed two-step strategy, Elstad controls the remainder of the analysis. U.S. Supreme Court case Oregon v. Elstad, 470 U.S. 298 (1985), permits a post-warning confession even where the police had previously obtained a pre-warning confession in violation of Miranda, so long as both the pre-warning confession and the post-warning statement statement were voluntarily made.
In evaluating voluntariness, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect. A statement is involuntary if the tactics employed by law enforcement officials constitute a Fifth Amendment due process violation and are so offensive to a civilized system of justice that they must be condemned.
A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement will ordinarily remove the conditions that precluded admission of the earlier statement.
The district court held that after Fernandez was Mirandized at 2:00 p.m., he made incriminating statements regarding his drug use at roughly 2:04 p.m. (in the patrol vehicle) and 2:34 p.m. (in the interrogation room). It explained that the circumstances of Fernandez’s conversations with Chadwick and Kapets establish Fernandez knew his rights, including his right to remain silent, on both occasions, and he nonetheless knowingly chose to waive them. Therefore, the district court concluded that Fernandez’s post-warning statements were a product of his free and rational choice and admissible.
Fernandez does not challenge the voluntariness of his pre-arrest statements, nor does he argue that his post-warning statements were involuntary. Thus, any argument concerning voluntariness is waived.
We affirm the district court’s judgment.
https://www.ca5.uscourts.gov/opinions/pub/21/21-50283-CR0.pdf