Argued April 2, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-CR-00360 -- Samuel Der-Yeghiayan, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Nicole Kim, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL.
For ARCADIO HERNANDEZ, Defendant - Appellant: Carol A. Brook, Attorney, Imani Chiphe, Attorney, OFFICE OF THE FEDERAL DEFENDER PROGRAM, Chicago, IL.
Before EASTERBROOK, MANION, and SYKES, Circuit Judges.
Manion, Circuit Judge .
Arcadio Hernandez was convicted by a jury of possessing a gun as a felon. He had confessed to knowingly possessing a gun, and the jury was so told over his objection. He argues that his confession should have been suppressed because it was obtained by a two-step interrogation process that circumvented Miranda . The district court disagreed, finding that the " interrogation" that took place before he was given Miranda warnings did not circumvent Miranda under the Supreme Court's jurisprudence. We affirm, but on the alternative basis that the single question asked before Hernandez was given Miranda warnings falls within the " public safety" exception to Miranda .
Arcadio Hernandez picked up a red bag from beside a garbage can in an alley. Chicago Police Officers Anthony Varchetto and Lenny Pierri, who were patrolling in an unmarked car, saw him pick up the red bag and run north up the alley before exiting the alley and turning left towards a nearby avenue. There, he saw the officers and, realizing he had been observed, dropped the red bag on the ground beside him. As the officers approached him, he volunteered, " I just have some dope,"  and he handed a key holder to Officer Varchetto. Looking inside, Officer Varchetto found five small bags of what appeared to be (and was later determined to be) heroin. The officers arrested Hernandez, and then Officer Pierri asked him what was in the red bag that he had dropped on the ground beside him. Hernandez replied that he had " ripped the guys around the corner for dope and a gun." After hearing that, Officer Pierri opened the bag and found a loaded .38 caliber gun, 61 small bags of crack cocaine, and 55 small bags of marijuana. At that point, the officers gave Hernandez Miranda warnings, put him in the patrol car, and took him back to the station.
During the ride to the station, without being prompted, Hernandez volunteered more details of the red bag caper. He let the officers know that he had received fake drugs from some dealers and was beaten when he complained. The red bag had belonged to those dealers and taking it was his way of retaliating. At the station, Hernandez was again given his Miranda warnings and he repeated the same story with more detail. The story was essentially a confession since he admitted that he knew there was a gun in the bag when he took possession of it.
Before trial, Hernandez moved to suppress his post- Miranda confession on the ground that it was a product of having confessed during a pre- Miranda interrogation. The district court carefully considered the Supreme Court's rulings in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) as well as Seventh Circuit cases interpreting and applying Seibert . Under this court's interpretation of Seibert, the district court must first determine whether the officers deliberately circumvented Miranda . If not, the voluntariness
standard of Elstad applies; if so, the district court must look at the Seibert plurality's factors and Justice Kennedy's " curative steps" to determine whether the taint of the pre-warning interrogation has been sufficiently removed for Miranda warnings given " midstream" to have been effective.See United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004). The district court found that the officers did not deliberately circumvent Miranda and that both Hernandez's pre- and post-warning statements and ...