Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 CR 350 Marvin E. Aspen, Judge.
Before CUMMINGS, RIPPLE and ROVNER, Circuit Judges.
REMANDED NOVEMBER 18, 1996
This case is before us on remand from the Supreme Court of the United States. Mills v. United States, 117 S. Ct. 478 (1996). In its order, the Supreme Court granted Mr. Mills' petition for a writ of certiorari, vacated our earlier judgment and remanded the case to this court for reconsideration in light of the Court's intervening decision in Ornelas v. United States, 116 S. Ct. 1657 (1996). Having reconsidered the matter in accordance with the mandate of the Supreme Court, we now affirm the judgment of the district court.
Our original opinion, United States v. Banks, 78 F.3d 1190 (7th Cir. 1996), contains a full exposition of the background of this case. We shall not repeat that account here. In the earlier appeal, this court, following the precedent established in earlier cases, applied a clear error standard in reviewing the district court's determination that there had been no violation of Mr. Mills' Fifth Amendment rights. Mr. Mills now submits, and the government concurs, that Ornelas requires that we review this determination under a de novo standard. For the reasons set forth in this opinion, we agree with the parties that Ornelas requires application of a de novo standard of review to some of Mr. Mills' contentions. *fn1 Nevertheless, even under our independent review, we believe that the judgment of the district court must be affirmed.
In Ornelas, the Supreme Court held that a two-step paradigm was to be employed in appellate review of two issues in Fourth Amendment jurisprudence, probable cause and reasonable suspicion:
[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from these facts by resident judges and local law enforcement officers. 116 S. Ct. at 1663.
Although Ornelas dealt with the determinations of reasonable suspicion and probable cause in Fourth Amendment jurisprudence, we have recognized that the rationale of Ornelas cannot be limited, in a principled manner, to that single area of jurisprudence. In that decision, the Court had noted that independent appellate review was necessary because of considerations of uniformity of decision and of the predictability and ease of administration that would follow uniformity of decision. See Ornelas, 116 S. Ct. at 1662; see also United States v. D.F., 115 F.3d 413, 416 (7th Cir. 1997).
Writing for the court in the wake of Ornelas, Judge Coffey concluded, in United States v. Yusuff, 96 F.3d 982 (7th Cir. 1996), cert. denied, 117 S. Ct. 999 (1997), that the issue of whether a person has been subjected to "custodial interrogation" must be considered under the Ornelas paradigm. He noted that the Supreme Court already had held, in Thompson v. Keohane, 116 S. Ct. 457 (1995), that the same issue ought to be treated as a mixed question of law and fact when it arises in the context of a habeas corpus proceeding under 28 U.S.C. sec. 2254. He then commented that Ornelas had cast doubt on our circuit precedent that required the use of a deferential review with respect to mixed questions of law and fact in direct appeals. In light of those rulings, Judge Coffey, noting that some recent cases had suggested the appropriateness of a deferential standard of review, nevertheless reaffirmed our holding in United States v. Hocking, 860 F.2d 769, 772 (7th Cir. 1988), that "the ultimate issue of whether there was a custodial interrogation is a mixed question of law and fact . . . independently reviewable by an appellate court." See Yusuff, 96 F.3d at 988. *fn2 Notably, in Thompson, the Supreme Court case upon which Yusuff relied, the Justices determined that plenary appellate review was necessary because the determination of "custody" for purposes of Miranda required the application of adjudicative facts to a legal standard. See Thompson, 116 S. Ct. at 465.
More recently, in United States v. D.F., 115 F.3d 413, 417 (7th Cir. 1997), we held that the Ornelas paradigm applies to determine whether a confession is voluntary within the meaning of the Fifth Amendment. We therefore abandoned our circuit precedent that had employed a deferential standard. In reaching that determination, we reasoned that the issue of whether a confession is voluntary also requires the application of adjudicative facts to a legal standard and presents the same need for uniformity of meaning and consistency of application that the Supreme Court had encountered in Ornelas with respect to the determinations of reasonable suspicion and probable cause. In conforming our circuit practice to Ornelas, we nevertheless recognized that there was "important common ground" between Ornelas and our earlier decisions because the Supreme Court had stressed in Ornelas that "an appellate court ought to review deferentially the findings of the trial court with respect to the historical facts that underlie the issue of voluntariness." Id.
Today we are confronted with a situation not unlike the one that confronted us when, in D.F., the Supreme Court directed us to reconsider our standard of appellate review of the voluntariness of a defendant's statement. We noted in D.F. that, on the issue of the voluntariness of a confession, the other circuits, although employing a deferential standard of review to the underlying adjudicative facts of the case, traditionally had employed de novo review to the issue of voluntariness of a defendant's statement. ...