Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 01 CR 32-Richard L. Young, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge
ARGUED SEPTEMBER 18, 2007
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
Defendant Timothy Stewart was found guilty of robbing a bank in Evansville, Indiana, and using a firearm in connection with that crime. He was sentenced to 159 months in prison. On his initial appeal to this court, he argued that his videotaped confession, played for the jury at trial, was the product of a sequential method of interrogation in which Miranda warnings were withheld until after he made an inculpatory statement, in violation of the Supreme Court's holding in Missouri v. Seibert, 542 U.S. 600 (2004). We remanded to the district court for findings on whether the police had deliberately used a two-step interrogation technique designed to circumvent the requirements of Miranda v. Arizona, 384 U.S. 436 (1966). When the case returned to this court, we again remanded to the district court for more particularized findings on whether the interrogating officer intentionally withheld Miranda warnings as part of a question-first, warn-later strategy. On the second remand, the district court specifically credited the officer's explanation for belatedly delivering Miranda warnings and found that the officer had not engaged in a deliberate circumvention of Miranda.
We affirm. Whether the interrogating officer deliberately withheld Miranda warnings as part of a two-step interrogation process designed to elicit an unwarned confession is a question of fact that we review for clear error. The district court's supplemental findings were not clearly erroneous, and therefore the admission of Stewart's postwarning confession was not improper under Seibert. We also agree with the district court that the inculpatory statement Stewart made before being Mirandized was voluntary. Accordingly, although inadmissible (and not admitted) at trial, Stewart's unwarned, first statement did not affect the admissibility of his second, fully warned and voluntary confession. See Oregon v. Elstad,470 U.S. 298, 314 (1985).
The background facts of this case were laid out in substantial detail in our earlier decision in this case, United States v. Stewart ("Stewart I"), 388 F.3d 1079 (7th Cir. 2004), and need only be summarized here. Stewart was detained at a perimeter checkpoint established by the Evansville Police Department following an armed robbery at the Old National Bank. The officer running the checkpoint believed Stewart matched a general description of the robber given to the dispatcher by another officer who observed a black man running away from the scene of the crime carrying a rifle and a duffel bag.
Evansville Detectives Larry Nelson and Dan Winters arrived at the checkpoint shortly after Stewart was detained. Winters removed Stewart's handcuffs. Stewart, unprompted, then suggested they get in the detectives' squad car; once in the car, he told Winters to "drive" and "take me downtown." Winters stayed put. A few minutes later Nelson received information that Stewart's cell phone was found near the bank robber's abandoned getaway car. Winters then rehandcuffed Stewart, and the detectives took him downtown to the police station. During the short trip to the station, Nelson asked Stewart if he was the bank robber; Stewart denied any involvement. Stewart was not given Miranda warnings at this time, although the parties agreed in the initial appeal of this case that he was now in custody.
At the station the detectives removed Stewart's handcuffs, placed him in an interview room, and asked again whether he was involved in the robbery. Stewart told them that another man, Duel Felders, committed the robbery and that he (Stewart) provided Felders with the gun and car. Winters and Nelson then left the interview room to put out a "BOL" ("Be on Lookout") for Felders. Nelson met two FBI agents in the hallway who accompanied him back into the interview room. The agents identified themselves and Stewart began to cry. Nelson asked him if he committed the robbery. Stewart admitted doing so and said that he did it alone. At that point Nelson administered Miranda warnings and Stewart signed a Miranda waiver form. He then gave a detailed videotaped confession, which was played for the jury at trial over the objection of his counsel. (As required by Miranda, Stewart's unwarned statement was excluded.) The jury returned a verdict of guilty.
Stewart appealed, arguing that his videotaped confession was involuntary and the product of a question-first, warn-later interrogation technique in violation of the Supreme Court's intervening decision in Seibert. We agreed with the district court that Stewart's post-Miranda confession was voluntary, but concluded there was insufficient evidence on the question of whether the officers deliberately employed a two-step interrogation process in circumvention of Miranda. We remanded the case to the district court for further factfinding on this point.
On remand the district court again found Stewart's preand post-Miranda statements voluntary. The court further held that the detectives did not violate Seibert because the Evansville Police Department did not have an official policy directing officers to use a two-step interrogation technique and did not train its officers to question suspects in this fashion. Stewart again appealed. We declined to reconsider our prior holding affirming the district court's voluntariness finding as to Stewart's postwarning confession and again remanded the case to the district court for more specific findings on the question whether the interrogating officer had deliberately engaged in an end-run around Miranda. (On the first remand, the district court had focused solely on the Police Department's lack of a policy or training practice regarding two-step interrogations.) We directed the district court to make findings on "the explanation given by the officer for the failure to administer warnings in a timely fashion and the credibility of that explanation in light of the totality of relevant circumstances surrounding the interrogation." United States v. Stewart ("Stewart II"), 191 F. App'x 495, 498-99 (7th Cir. 2006).
The district court then made supplemental findings of fact and conclusions of law in response to our order in Stewart II. After reexamining Detective Nelson's testimony, the court accepted his explanation for failing to Mirandize Stewart earlier in the interrogation. Nelson testified that he did not think Stewart was in custody until he told the officer he provided a gun and a car to Felders. Stewart had himself asked to be taken downtown to the police station, which Nelson construed as a voluntary encounter, not custody. Nelson also testified that he did not deliver Miranda warnings immediately after Stewart implicated himself as an accomplice to Felders because he was in a rush to get out a BOL on Felders. The court credited these explanations and reaffirmed its prior holding. Stewart appealed for a third time.
In Seibert, the Supreme Court considered the question of the admissibility of a confession obtained by a two-step interrogation process in which Miranda warnings were delivered mid-interrogation, after an initial and unwarned inculpatory statement by the suspect. The Court did not, however, achieve a majority opinion regarding how such sequential interrogations ought to be evaluated. Previously, the admissibility of a postwarning confession obtained after an earlier, unwarned inculpatory statement was governed by Elstad, which required an inquiry into whether the pre- and postwarning statements were voluntary. 470 U.S. at 310-11. If the unwarned, first statement was voluntary, then the second statement would be admissible under Elstad provided it, too, was voluntary and obtained after compliance with Miranda. Id. at 318. If the unwarned, first statement was involuntary, however, the admissibility of the ...