United States v. Guillen ( 2021 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS April 27, 2021
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-2004
ETHAN GUILLEN,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:17-CR-01723-WJ-1)
_________________________________
Melissa Ayn Morris, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Defendant–Appellant.
Tiffany L. Walters, Assistant United States Attorney (John C. Anderson, United States
Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff–Appellee.
_________________________________
Before TYMKOVICH, Chief Judge, BALDOCK, and CARSON, Circuit Judges.
_________________________________
BALDOCK, Circuit Judge.
_________________________________
After a young woman found a pressure cooker bomb hidden under her bed, law
enforcement agents went to the home of the only person she said might want to harm
her: Ethan Guillen.1 The agents entered Ethan’s home, questioned him, and obtained
consent from his father to search the residence. During the search, the agents found
evidence in Ethan’s bedroom indicating his involvement with the pressure cooker
bomb. When one of the agents confronted Ethan with the information and evidence
they had collected, he confessed to making the bomb. The agent immediately
provided the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966), and
Ethan proceeded to make more incriminating statements.
Ethan ultimately entered a conditional plea of guilty to possession of an
unregistered destructive device and an attempt to damage or destroy a building by
means of fire or an explosive. His plea agreement reserved the right to appeal the
district court’s order denying his motion to suppress the physical evidence and
incriminating statements resulting from the search of his home. Exercising that right,
Ethan argues the district court should have suppressed the physical evidence found in
his home because the agents’ warrantless entry and search of his bedroom violated
his Fourth Amendment rights. He also contends the district court should have
suppressed the incriminating statements he made after receiving Miranda warnings
because the agents elicited them through coercion and used an impermissible two-
step interrogation technique to end run around Miranda.
We have jurisdiction under 28 U.S.C. § 1291, and we conclude that the district
court correctly denied Ethan’s suppression motion. No Fourth Amendment violation
1
The parties refer to Ethan Guillen; his father, Reynaldo Guillen; and his
brother, Tyler Guillen, by their first names. In the interest of clarity, we do the same.
2
occurred because Ethan voluntarily consented to the agents’ entry into his home and
because the agents reasonably relied on his father’s consent to search his bedroom.
Ethan’s initial confession, which the district court suppressed, was inadmissible
because the agents failed to provide Miranda warnings before they engaged in
custodial interrogation. But the midstream Miranda warnings Ethan received were
sufficient to advise him of his rights and render his voluntary postwarning statements
admissible. For these reasons, we affirm the district court’s judgment.
I.
On May 31, 2017, law enforcement responded to a 911 call from “MC,” a
young woman who had found an improvised explosive device under her bed. The
device was a pressure cooker sealed with white duct tape and filled with black
powder; homemade napalm; and various types of shrapnel, including nuts, bolts, and
screws. A fuse ran through the pressure cooker’s release valve and connected to an
electric soldering iron, which was plugged into a timer that was plugged into the wall
with a power strip. The device was designed so that the timer would turn on the
soldering iron, which would heat up, ignite the fuse, and cause an explosion.
Fortunately, the bomb never detonated.
Special Agent Zachary Rominger, an agent with the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF), interviewed MC and her mother. When
asked if anyone would want to hurt or kill her, MC could think of only one person—
her ex-boyfriend, Ethan. MC said she had dated Ethan for about six months. After
they broke up, MC explained, Ethan continued to try and communicate with her
3
against her wishes. And at some point, MC’s school provided her with an escort to
class in an effort to stop Ethan’s harassment.
After wrapping things up at MC’s home, law enforcement agents went to
Ethan’s house. At approximately 9:43 p.m., ATF Special Agents Zachary Rominger
and Derek Wright, FBI Special Agent Bomb Technicians Craig Greene and Michael
Anthony, and Albuquerque Police Department Detective James Larranaga knocked
on Ethan’s front door. FBI Supervisor Marco Gonzalez was also present, but he
stayed out by the street when the other five agents approached the house. Detective
Larranaga’s lapel camera captured on video, among other things, the moments
leading up to the agents’ entry into Ethan’s home.
When the agents knocked on the door, Ethan and his brother, Tyler Guillen,
answered. At the time, Ethan was eighteen years old; Tyler was twenty. The agents
asked if they could come inside and talk. Tyler agreed, but Ethan asked if the agents
had a warrant. After Agent Greene said they did not have a warrant, Ethan suggested
they talk in the doorway instead. When the agents asked again if they could come
inside, the brothers had a brief and largely inaudible discussion, during which Tyler
asked Ethan, “Why do you care?” After the discussion, one of the brothers said
“sure.” Agents Rominger and Greene testified that Ethan said “sure,” but Tyler
testified he made that statement. Assessing the conflicting accounts and the lapel
cam video, the district court deemed the agents’ testimony credible and found that
Ethan was the one who said the word “sure.” At this point, Tyler put his hand on
Ethan’s shoulder, and both brothers moved out of the doorway. Agent Greene
4
confirmed: “Are you inviting us in to talk?” One of the brothers responded, “Yeah,
sure.” Then they all went inside the house.
Following a protective sweep of the residence, during which no evidence was
gathered, Agents Rominger and Greene interviewed Ethan at the kitchen table while
other agents spoke with Tyler in the hallway. Tyler told the agents that their father,
Reynaldo, is a musician and was practicing with his band in Santa Fe that night.
Reynaldo returned home about 18 minutes after the agents’ entry. He informed the
agents he had recently bought a pressure cooker for Ethan and, at the agents’ request,
looked for it. After Reynaldo could not find the pressure cooker, he asked Ethan
where it was. Ethan said he had taken it to his mother’s house. Reynaldo then called
Ethan’s mother to see if she had the pressure cooker. Ethan’s mother said she did not
know whether the pressure cooker was at her house and told Reynaldo she would
have to look for it.
While questioning continued, Reynaldo confirmed he owned the house and
verbally consented to a search. He also signed a search consent form. At that point,
the agents called in the Albuquerque Bomb Squad to assist. Shortly after the search
began, the agents asked Reynaldo if he owned a soldering iron. Reynaldo said he
did, but he couldn’t find it. The agents’ search did not uncover the soldering iron
either, but they discovered a table on the back porch with burn marks and a piece of
fuse burnt onto it. The bomb squad also found white duct tape matching the tape on
the pressure cooker bomb, black duct tape, latex gloves, scissors, super glue, and zip
5
ties in a backpack on the floor of the master bedroom. The master bedroom was
Ethan’s room.
Agents Rominger and Greene questioned Ethan at the kitchen table for about
50 minutes, during which time he repeatedly denied any involvement with making
the pressure cooker bomb. After the search ended, the agents asked Ethan, who was
then sitting on the couch in the living room, to return to the kitchen table. Agent
Rominger then laid out the evidence discovered during the search, told Ethan it
pointed to him, and asked if he created the improvised explosive device. Ethan
hesitated, took a deep breath, and then said: “Yes, I made it.” Agent Rominger
immediately read Ethan his Miranda rights.
Ethan acknowledged he understood his rights, continued to respond to the
agents’ questions, and provided information about his involvement with making the
device for the next 20 to 40 minutes. Among other things, Ethan described how he
made the pressure cooker bomb, explained how he planted it under MC’s bed, and
told the agents he wanted MC dead. He also took the agents into his room and
showed them the items he used to build the device, including the white duct tape,
gloves, and super glue stored in his backpack. Ethan never requested a lawyer or
asked the agents to stop questioning him. And he answered all of their questions
except one—whether he planned to make another device to kill MC.
Ethan was charged with possession of an unregistered destructive device, in
violation of 26 U.S.C. § 5861(d), and an attempt to destroy a building by fire or
explosive, in violation of 18 U.S.C. § 844(i). In district court, Ethan filed a motion
6
to suppress his self-incriminating statements and the physical evidence obtained from
the search of his home. Ethan argued that the agents violated his Fourth Amendment
rights by entering his house and searching his bedroom without a warrant and without
his consent. He also contended that the agents violated his Fifth Amendment rights
by questioning him without first providing Miranda warnings.
The district court suppressed Ethan’s pre-Miranda confession but denied his
motion as to the remaining statements and evidence. Starting with the Fourth
Amendment claims, the district court found that both Ethan and his brother
voluntarily consented to the agents’ entry into their home. The district court also
determined the search of Ethan’s bedroom was lawful because his father had apparent
authority to consent to it.
Turning to the Fifth Amendment claims, the district court found the agents’
questioning moved beyond simply attempting to elicit information to custodial
interrogation when they confronted Ethan with the evidence discovered during the
search. Because Agent Rominger had not yet warned Ethan of his Miranda rights,
the district court suppressed the initial confession Ethan made in response to this
custodial interrogation. But the district court concluded that Agent Rominger’s
administration of the Miranda warnings after that initial statement was sufficient to
advise Ethan of his rights and render his postwarning statements admissible.2
2
Following the denial of his suppression motion, Ethan twice requested the
district court to reconsider its factual finding that he consented to the agents’ entry into
his home. In support, Ethan provided an audio enhancement of the previously
submitted video taken on Detective Larranaga’s lapel camera and a forensic report
7
Ethan subsequently pleaded guilty, but he reserved the right to appeal the
district court’s denial of his motion to suppress. This is his appeal.
II.
When reviewing the denial of a suppression motion, we view the evidence in
the light most favorable to the government, accept the district court’s factual findings
unless they are clearly erroneous, and review legal conclusions de novo. United
States v. Cortez, 965 F.3d 827, 833 (10th Cir. 2020). Ethan argues the district court
erred by not suppressing the physical evidence found in his home and his post-
Miranda statements in the face of Fourth and Fifth Amendment violations.
A.
The Fourth Amendment guarantees the right of people to be “secure in their
persons, houses, papers, and effects against unreasonable searches and seizures.”
U.S. Const. amend. IV. Ethan contends the agents’ warrantless entry into his home
violated that right for two reasons. First, he denies he gave consent to law
enforcement to enter the residence. Second, he argues that even if he did consent to
the entry, his consent was not voluntary. Ethan also claims the search of his bedroom
and its contents was unlawful under the Fourth Amendment because his father lacked
apparent authority to consent to the search. We address Ethan’s arguments in turn.
outlining the methods and procedures used to create the enhanced material. The district
court denied both of Ethan’s motions to reconsider. Because Ethan has not specifically
challenged the district court’s reasons for doing so, we need not address them here.
8
1.
We first consider whether the district court erred when it found Ethan
voluntarily consented to the agents’ entry into his home. Voluntary consent is a
longstanding exception to the general requirement that law enforcement officers must
have a warrant to enter a person’s home. United States v. Warwick, 928 F.3d 939,
943 (10th Cir. 2019). The exception applies when the government proves (1) the
officers received either express or implied consent and (2) that consent was freely
and voluntarily given. United States v. Jones, 701 F.3d 1300, 1317 (10th Cir. 2012).
Whether officers obtained valid consent to enter a home is a question of fact
determined through the totality of the circumstances. Id. at 318. Accordingly, we
review the district court’s finding of consent under the clearly-erroneous standard.
United States v. Guerrero, 472 F.3d 784, 789 (10th Cir. 2007).
Ethan first argues that he never actually consented to the agents’ entry into his
home. In doing so, however, he fails to meaningfully grapple with the district court’s
factual findings. Ethan did initially object to law enforcement entering his home, but
the district court found he subsequently consented to the agents’ entry by saying
“sure” in response to their second request to come inside. In addition to its repeated
viewings of the lapel cam video, the district court based its finding on credible agent
testimony that Ethan was the one who said “sure.”
“This court is loath to second-guess a district court’s determination of a
witness’s credibility.” United States v. Asch, 207 F.3d 1238, 1243 (10th Cir. 2000).
We have no basis for doing so here. Neither Ethan’s nor Tyler’s mouth is visible on
9
the lapel cam video when the word “sure” is spoken. And Ethan has not shown the
district court’s credibility determination is internally inconsistent. Warwick, 928
F.3d at 944. He points out that the district court also found Tyler’s testimony
credible, but that credibility determination concerned Ethan’s privacy preferences,
not who said “sure” during the initial encounter at the door. Thus, despite Tyler’s
contrary testimony, the district court did not clearly err when it found Ethan orally
consented to the agents’ entry.
The district court likewise did not clearly err when it determined Ethan
impliedly consented to the entry by stepping away from the doorway and allowing
the agents to enter the house. See Guerrero, 472 F.3d at 789–90 (“[C]onsent must be
clear, but it need not be verbal. Consent may instead be granted through gestures or
other indications of acquiescence, so long as they are sufficiently comprehensible to
a reasonable officer.”). Again relying on his brother’s testimony, Ethan argues his
movement away from the door was caused by Tyler shoving him out of the way. But
Agent Rominger testified that Tyler did not physically remove Ethan from the
doorway. Specifically, Agent Rominger explained that Tyler put his hand on Ethan’s
shoulder, and then Ethan walked out of the way on his own accord. Consistent with
the agent’s credible testimony, the district court determined there was no visible push
on the lapel cam video and found that both brothers cleared the way for the agents to
enter. The district court’s determination that Ethan consented through his actions is,
at a minimum, not clear error.
10
Ethan next argues that even if he consented to the agents’ entry, his consent
was not voluntary. Consent is voluntary if it is unequivocal and specific, freely and
intelligently given, and not the product of duress or coercion. Warwick, 928 F.3d at
945. When examining the totality of the circumstances to determine the
voluntariness of consent, some relevant considerations include
physical mistreatment, use of violence, threats, promises, inducements,
deception, trickery, or an aggressive tone, the physical and mental
condition and capacity of the defendant, the number of officers on the
scene, and the display of police weapons. Whether an officer reads a
defendant his Miranda rights, obtains consent pursuant to a claim of
lawful authority, or informs a defendant of his or her right to refuse
consent also are factors to consider in determining whether consent given
was voluntary under the totality of the circumstances.
Id. (quoting Jones, 701 F.3d at 1318).
According to Ethan, any consent he gave was involuntary because he had no
choice but to submit to the agents’ show of authority. More specifically, Ethan says
his consent was necessarily coerced for several reasons, including (1) the presence of
multiple officers, two of whom were in uniform and visibly armed; (2) the agents’
repeated requests to enter; and (3) his characteristics as a youth lacking prior
experience with law enforcement. We are not persuaded.
The presence of multiple officers at the time Ethan consented increased the
coercive nature of the encounter, but that factor is not dispositive. United States v.
Iribe, 11 F.3d 1553, 1557 (10th Cir. 1993) (holding that the district court clearly
erred when it found consent involuntary based on the presence of five officers
because numerous factors indicated the resident voluntarily consented, including that
11
she was not coerced, frightened or otherwise threatened; she had a cordial
conversation with officers spoken in low volume; and the officers made no promises
or threats in an attempt to extract her consent). Most of the agents were dressed in
plain clothes, and their weapons were concealed. And the two uniformed officers
never drew their weapons or otherwise brandished them. Thus, aside from the mere
number of officers present, no other evidence in the record suggests Ethan faced a
display of force designed to overbear.
Ethan points to no credible evidence of coercive tactics such as physical
mistreatment, use of violence, threats, promises, inducements, deception, or trickery.
The agents spoke in a casual, rather than an aggressive, manner. And they never
demanded entry or otherwise claimed any lawful authority to be admitted. Under
these circumstances, neither the agents’ multiple requests to enter the Guillen
residence nor Ethan’s initial objection rendered his subsequent consent involuntary.
See United States v. Cruz-Mendez, 467 F.3d 1260, 1263, 1266–68 (10th Cir. 2006)
(upholding district court’s finding of voluntary consent when the resident repeatedly
refused the officers’ initial requests and told them they needed a warrant to search a
home but subsequently consented to the search).
The record evidence also shows that Ethan’s consent was intelligently given.
It is true that the agents did not inform Ethan he could refuse their request to enter
the house and that Ethan lacked prior experience with law enforcement. But Ethan
was a legal adult who knew enough about his rights to ask the agents if they had a
warrant to enter his home. See United States v. Carloss, 818 F.3d 988, 998–99 (10th
12
Cir. 2016) (explaining that an advisement of the right to refuse a warrantless entry is
not a prerequisite for voluntary consent and that a prior refusal of consent showed
awareness of the right to do so). He also was intelligent enough to build an
improvised explosive device that an experienced bomb technician described as one of
the most sophisticated devices he had ever seen in New Mexico. For these reasons,
the district court’s finding that Ethan voluntarily consented to the agents’ entry into
his home is not clearly erroneous.
2.
Ethan also challenges the search of his bedroom, backpack, and nightstand on
the ground that his father, Reynaldo, did not have authority to consent to the search.
Whether the agents reasonably relied on Reynaldo’s consent to search Ethan’s
bedroom and its contents is a legal question we review de novo. United States v.
Kimoana, 383 F.3d 1215, 1222 (10th Cir. 2004).
An officer may obtain valid consent to search from a third party with either
actual or apparent authority over the subject property. United States v. Romero, 749
F.3d 900, 905 (10th Cir. 2014). Actual authority exists when a third party “has either
(1) mutual use of the property by virtue of joint access, or (2) control for most
purposes.” United States v. Rith, 164 F.3d 1323, 1329 (10th Cir. 1999). When actual
authority is lacking, “a third party has apparent authority to consent to a search when
an officer reasonably, even if erroneously, believes the third party possesses authority
to consent.” United States v. Andrus, 483 F.3d 711, 716 (10th Cir.), decision
clarified on denial of reh’g, 499 F.3d 1162 (10th Cir. 2007). The test for apparent
13
authority is objective: Would “the facts available to the officer at the moment warrant
a [person] of reasonable caution [to believe] that the consenting party had authority
over the premises?” Romero, 749 F.3d at 905 (quoting Illinois v. Rodriguez, 497
U.S. 177, 188 (1990)).
Critical here is the parent-child relationship between Ethan and his father.
When a child—even an adult child—lives in a parent’s home, the parent is presumed
to have “control for most purposes over the property and therefore actual authority to
consent to a search of the entire home.” Id.; see also Rith, 164 F.3d at 1331(applying presumption and holding that the defendant’s parents had actual authority
to consent to a search of their 18-year-old son’s bedroom). The presumption holds
true unless “rebutted by facts showing an agreement or understanding between the
[child] and the [parent] that the latter must have permission to enter the [child’s]
room.” Rith, 164 F.3d at 1330–31. Relevant facts include a lock on the child’s
bedroom door, an explicit or implicit agreement that the parent will not enter the
room without the child’s consent, and payment of rent by the child. Id.At the suppression hearing, Reynaldo testified that he had agreed to only enter
Ethan’s bedroom with Ethan’s permission. Tyler also testified about this
arrangement and described how Ethan guarded his privacy by habitually locking his
bedroom door to keep everyone out when he was inside. The government does not
argue those facts are insufficient to rebut the presumption of actual authority.
Instead, it contends that Reynaldo had apparent authority because the agents who
14
searched the house were unaware of those facts and thus reasonably relied on the
presumption of control established by Ethan’s relationship with his father. We agree.
At the time of the search, the agents knew Reynaldo owned the house and
permitted Ethan to live there. See Romero, 749 F.3d at 906 (“An owner of a house is
presumed to have control for most purposes of the entire house, including the
bedroom of a [ ]child permitted to live there.”). Although the door to Ethan’s
bedroom had a lock on it, which to some extent undermines Reynaldo’s apparent
authority, the door was wide open when the agents arrived. Ethan never objected to
the search. Neither did Reynaldo or Tyler. And at no point did any of the Guillens
limit where the agents could look.
Even if, as Ethan maintains, the agents knew he occupied the master bedroom
when the search began, they had no way of knowing Reynaldo only entered that room
with Ethan’s permission. When Reynaldo voluntarily consented to the search of the
home, he did not mention the agreement he had with Ethan about access to the master
bedroom. Ethan and Tyler likewise said nothing about any privacy arrangement
amongst the household members. Tyler’s statement that Ethan is “usually in his
room doing his own thing” may shed light on Ethan’s personality, but it raises no
doubt about Reynaldo’s control over his son’s bedroom. Because the agents
reasonably believed Reynaldo had authority to consent, they were not required to
make further inquiries “merely because one can imagine some way that additional
facts might alter their analysis.” Id. at 907.
15
Under the totality of the circumstances, the facts known to the agents at the
time of the search created an objectively reasonable perception that Reynaldo had
authority to consent to the search of Ethan’s bedroom. If the agents had learned that
Ethan habitually locked his bedroom door to keep everyone out when he was inside
and that his father did not enter the bedroom without permission, they may no longer
have been justified in relying on Reynaldo’s consent. But the district court found
they did not know those facts when they searched Ethan’s bedroom. This after-
acquired factual knowledge, therefore, has no bearing on the reasonableness of the
agents’ belief in Reynaldo’s authority at the time of the search. Id. at 907–08.
Ethan also contends that even if Reynaldo had apparent authority over the
master bedroom, the agents could not reasonably believe he had authority to consent
to a search of the backpack and nightstand in that room. We reject that argument as
well.
“Common authority over a residence does not necessarily imply common
authority over all locations or objects within the residence.” United States v. Bass,
661 F.3d 1299, 1305 (10th Cir. 2011). But when general authority to consent exists,
“we should not look for ‘metaphysical subtleties’ to define the boundaries of that
authority.” Id. at 1306 (quoting Frazier v. Cupp, 394 U.S. 731, 740 (1969)). Thus, a
“protected expectation of privacy may exist where the defendant has taken some
special steps to protect his personal effects from the scrutiny of others, but does not
unquestionably exist where the co-occupant has ready access (perhaps not theretofore
16
exercised) to the place searched.” Id. (quoting 4 Wayne R. LaFave, Search and
Seizure § 8.3(f), at 168–69 (4th ed. 2004)).
Ethan took no “special steps” to protect the backpack or nightstand in his room
from scrutiny. The door to Ethan’s bedroom was wide open when the agents arrived,
and neither the backpack nor the nightstand was locked or otherwise secured. In fact,
the backpack was found lying on the floor of the master bedroom, “hardly an object
shouting ‘Do Not Enter.’” See id. What’s more, Reynaldo—whom the agents knew
was a musician—stored musical equipment and clothes in the master bedroom, which
would make it appear that he had ready access to the room and its contents. In light
of those facts and the apparent authority Reynaldo generally had over Ethan’s
bedroom, the agents reasonably believed Reynaldo’s authority to consent extended to
the search of the backpack and nightstand in that room.
United States v. Salinas–Cano, 959 F.2d 861 (10th Cir. 1992), which Ethan
cites to support his argument, does not persuade us otherwise. In Salinas–Cano, this
court held that a resident of an apartment lacked the authority to consent to the search
of a suitcase her boyfriend (i.e., the defendant) had left there. Id. at 865–66. Prior to
the search, the girlfriend told the police she was not the co-owner of the suitcase and
that it belonged exclusively to the defendant. Id. at 865. Because the couple spent
five nights a week in separate residences, which suggests at least one of them desired
his or her own space and the resulting privacy, we analyzed the case as one in which
a host consents to the search of an object owned by a guest. See id. at 863; see also
Bass, 661 F.3d at 1306. The guest-host relationship is far different from that of a
17
child living in his parent’s home, where the parent is presumed to have control for
most purposes of the child’s bedroom. See Romero, 749 F.3d at 906.
The more instructive precedent here is United States v. Andrus, in which we
held that a father had apparent authority to consent to the search of a computer
located in his adult son’s bedroom. 483 F.3d at 720–22. In Andrus, we likened a
computer to a suitcase, footlocker, and other containers that command a high degree
of privacy. Id. at 718. But we concluded the facts known to the officers when the
search began created an objectively reasonable perception that the father had
authority over the computer. Id. at 722. Those facts included: (1) the defendant’s
father owned the house and lived there with other family members; (2) the father paid
the internet bill; (3) the computer was in the defendant’s bedroom, but the father had
access to the room; (4) the computer was in plain view on a desk and appeared
available for use by other household members; and (5) the father did not do or say
anything to indicate he lacked control over the computer. Id. at 720–21.
The defendant in Andrus argued that the search was unreasonable because his
computer was “locked” to third parties due to its password protection, a fact he said
the officers would have known had they asked questions of his father prior to the
search. Id. at 721. We rejected this argument and declined to place the onus on the
officers to affirmatively ask the defendant’s father if the computer was password
protected before they relied on his consent. Id. Without an affirmative statement by
the father suggesting he did not have authority to access the defendant’s computer,
the officers reasonably believed such authority in fact existed. Id. at 721–22.
18
As in Andrus, the surrounding circumstances known to the agents here would
not cause a reasonable person to doubt Reynaldo’s consent and refrain from acting on
it without further inquiry. Because the agents were reasonable in believing Reynaldo
had the requisite authority to consent to a search of Ethan’s bedroom and its contents,
no Fourth Amendment violation occurred.3
B.
Ethan also alleges violations of his Fifth Amendment rights due to law
enforcement questioning him without providing Miranda warnings. Because the
initial confession Ethan gave before Agent Rominger advised him of his Miranda
rights was suppressed, Ethan’s argument focuses on his post-Miranda statements,
which the district court deemed admissible. Ethan claims the Miranda warnings he
received after his initial confession were insufficient to effectively advise him of his
rights and render his postwarning statements admissible. In addition, Ethan says all
of his incriminating statements, along with the waiver of his Miranda rights, were
involuntary and obtained in violation of the Fifth Amendment.
1.
The Self–Incrimination Clause of the Fifth Amendment guarantees that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.”
U.S. Const. amend. V. In Miranda v. Arizona, the Supreme Court concluded that
3
We need not address the government’s alternative argument that the evidence
in Ethan’s bedroom inevitably would have been discovered because the agents would
have obtained a search warrant absent consent.
19
“the process of in-custody interrogation of persons suspected or accused of crime
contains inherently compelling pressures which work . . . to compel him to speak
where he would not otherwise do so freely.” 384 U.S. 436, 467 (1966). The Court
instituted measures to guard against this danger. Prior to custodial questioning, a
suspect must be warned “that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.” Id. at 479. Without these warnings, custodial
confessions are presumed to be the product of coercion and are generally
inadmissible for purposes of the prosecution’s case in chief. United States v. Patane,
542 U.S. 630, 639 (2004) (plurality opinion).
But Miranda warnings aren’t always required. They need only be given once
an individual is in “custody” and subjected to “interrogation.” Cortez, 965 F.3d at
840 (quoting United States v. Jones, 523 F.3d 1235, 1239 (10th Cir. 2008)). Here,
the government does not dispute that Ethan made his pre-Miranda confession in
response to questioning that constitutes interrogation. Rhode Island v. Innis, 446
U.S. 291, 300–01 (1980) (explaining that interrogation encompasses both “express
questioning” and “its functional equivalent,” including “any words or actions on the
part of the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response”). So the
remaining question is whether Ethan was in custody at that time. If he wasn’t, there
is no basis to exclude any of his incriminating statements.
20
An individual is in custody for Miranda purposes when “a reasonable person
in the suspect’s position would understand his or her situation as ‘the functional
equivalent of formal arrest.’” Cortez, 965 F.3d at 840 (quoting United States v.
Revels, 510 F.3d 1269, 1273 (10th Cir. 2007)). This is an objective, fact-intensive
inquiry that focuses on the totality of the circumstances. Id. Several relevant factors
inform our analysis, including: “(1) whether the circumstances demonstrated a
police-dominated atmosphere; (2) whether the nature and length of the officers’
questioning was accusatory or coercive; and (3) whether the police made [the
defendant] aware that [he or she] was free to refrain from answering questions, or to
otherwise end the interview.” Revels, 510 F.3d at 1275.
When Ethan made his initial self-incriminating statement, the agents had not
informed him that he was free to end the interview or decline to answer their
questions. That is “a significant indication of a custodial detention.” United States v.
Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993). But it also is only one factor to consider.
United States v. Zar, 790 F.3d 1036, 1048 (10th Cir. 2015) (finding the failure to
advise the defendant that a three-hour interview was a consensual conversation
troubling but concluding it “did not transform the in-home interview into a custodial
interrogation”).
Another relevant factor is whether Ethan was questioned in a police-dominated
atmosphere. After the agents obtained voluntary consent to enter the Guillen
residence, two agents questioned Ethan at the kitchen table for about an hour before
he made his initial confession. Revels, 510 F.3d at 1275 (“[T]he home is generally a
21
more familiar, comfortable atmosphere than a police interrogation room.”). During
this time, Ethan moved freely about his home—going unaccompanied to the
bathroom and getting a drink from the refrigerator—and was free to check his phone.
Although a large number of law enforcement personnel were in the Guillen residence
at various times, Ethan’s father and brother were also present in the home. In fact,
Ethan’s father participated in the interview at least once. See United States v. Lamy,
521 F.3d 1257, 1263 (10th Cir. 2008) (concluding that an hour-long interview was
not custodial when it was “conducted by two officers in a common area of [the
defendant’s] home, during which his mother came and went from the room”). Ethan
was not placed in handcuffs or otherwise physically restrained during the interview.
And he was never subjected to or threatened with any physical mistreatment. Under
these circumstances, we cannot say the agents questioned Ethan in a police-
dominated atmosphere. See Revels, 510 F.3d at 1276 (concluding a home was
dominated by police when officers “had recently breached [the defendant’s] front
door with force, handcuffed her, and placed her prone on the hall floor”).
Whether the nature and length of the agents’ questioning was accusatory or
coercive is a closer call. On the one hand, Ethan was not questioned for an especially
long period of time before the Miranda warnings were given, and the agents neither
spoke in a threatening tone nor displayed their weapons during the inquiry. The
agents’ questioning, in short, did not rise to the level of coercion. Compare United
States v. Eckhart, 569 F.3d 1263, 1276 (10th Cir. 2009) (finding circumstances to be
noncoercive when the defendant “was never handcuffed or placed in a police cruiser
22
and no weapons were drawn” and “the officers were polite in their demeanor and did
not use or threaten the use of force at any time”), with United States v. Perdue, 8 F.3d
1455, 1464, 1467 (10th Cir. 1993) (finding a coercive atmosphere when the
defendant “was forced out of his car and onto the ground at gunpoint” and then
questioned by officers “while police helicopters hovered above” and “while the
officers kept their guns drawn on him and his pregnant fiancee”).
On the other hand, the questioning that elicited Ethan’s initial confession was
plainly accusatory. After the search ended, Agent Rominger “pushed” Ethan by
confronting him with the evidence discovered during the search. Specifically, Agent
Rominger told Ethan that the information and evidence they had collected during
their investigation indicated he made the pressure cooker bomb:
We know that you purchased a pressure cooker and it’s gone. We know
that a soldering iron was used in this device, and your dad’s soldering
iron is missing. White tape, like was found on the device, is found in the
backpack. And there’s a table that looks like it has black powder burns,
and there’s burns and fuses on that table.
ROA, Vol. III at 310. The accusatory nature of such questioning supports a
conclusion that Ethan was in custody when he first confessed. See Rith, 164 F.3d at
1332.
Under the totality of the circumstances described above, Ethan was not in
custody before Agent Rominger confronted him with the information and evidence
discovered during the search. But the situation evolved when Agent Rominger
pressed Ethan despite his repeated denials of involvement and then confronted him
with the mounting information and evidence collected during the search. At that
23
point, a reasonable person in Ethan’s position would not have felt free to leave or
otherwise end the interview. See id. (holding the defendant “was not in police
custody until the point at which he was confronted with the illegal shotgun” seized
during a search of his home). In other words, Ethan was in custody when he made
his initial self-incriminating statement.
Resisting this conclusion, the government contends that the encounter turned
custodial when Ethan confessed, not when Agent Rominger confronted him with the
evidence discovered during the search. This is so, the government maintains,
because the evidence Agent Rominger confronted Ethan with was less conclusive of
criminal conduct than the sawed-off shotgun the officers used to confront the
defendant in Rith. See id. That may be true, but it doesn’t change the outcome here.
It is difficult to ignore the effect that Agent Rominger’s accusatory
questioning had on the nature of the interrogation under the circumstances Ethan
faced. See Jones, 523 F.3d at 1240 (“[W]e must look to the totality of the
circumstances and consider the police-citizen encounter as a whole, rather than
picking some facts and ignoring others.”). With the search of the Guillen residence
completed prior to Ethan’s second round of pre-Miranda questioning, there was little
remaining for the agents to do other than to leave or place Ethan under arrest.
Revels, 510 F.3d at 1277 (finding it “significant” that “the search had been completed
prior to [the defendant’s] questioning”). Considering the evidence the agents had
discovered, an arrest was likely, and—after being confronted with that evidence—a
reasonable person in Ethan’s shoes would have recognized as much. Thus, Ethan
24
would have reasonably understood his situation as the functional equivalent of formal
arrest when Agent Rominger elicited his initial confession.
Because the agents failed to advise Ethan of his Miranda rights before they
subjected him to custodial interrogation, the district court properly suppressed his
unwarned admission.
2.
After Ethan admitted he made the pressure cooker bomb, Agent Rominger
immediately provided Miranda warnings. Ethan waived his right to remain silent
and then proceeded to provide details about, among other things, how he created the
device and planted it under MC’s bed. The question, then, becomes whether Agent
Rominger’s tardy administration of Miranda warnings requires suppression of
Ethan’s postwarning statements.
a.
The Supreme Court has twice addressed midstream Miranda warnings—first
in Oregon v. Elstad, 470 U.S. 298 (1985), and again in Missouri v. Seibert, 542 U.S.
600 (2004). In Elstad, police officers went to the home of the defendant, an 18-year-
old they suspected of breaking into a neighbor’s house, with a warrant to arrest him
for burglary. 470 U.S. at 300. While there, one of the officers questioned the
defendant about the burglary without first reading him Miranda warnings. Id. at 301.
The defendant admitted he was present at the burglary, at which point the officers
arrested him and took him to the police station. Id. About an hour later, the arresting
officers informed the defendant of his Miranda rights. Id. The defendant then
25
waived those rights and gave a full confession detailing his role in the crime. Id. at
301–02.
The Court held that “a suspect who has once responded to unwarned yet
uncoercive questioning is not thereby disabled from waiving his rights and
confessing after he has been given the requisite Miranda warnings.” Id. at 318.
“Though Miranda requires that the unwarned admission must be suppressed,” said
the Court, “the admissibility of any subsequent statement should turn in these
circumstances solely on whether it is knowingly and voluntarily made.” Id. at 309.
The Court rejected the notion that an initial, unwarned statement creates a “lingering
compulsion” based on “the psychological impact of the suspect’s conviction that he
has let the cat out of the bag and, in so doing, has sealed his own fate.” Id. at 311.
“[A]bsent deliberately coercive or improper tactics in obtaining the initial statement,”
the Court reasoned, a “subsequent administration of Miranda warnings . . . ordinarily
should suffice to remove the conditions that precluded admission of the earlier
statement.” Id. at 314. The Court also explained that even when an initial, unwarned
statement was actually coerced, the coercive effect could dissipate with the passage
of time, a change in place, or a change in identity of the interrogators. Id. at 310–12.
Because the defendant’s initial statement and waiver of his rights were voluntary, the
Court held that his postwarning confession was admissible. Id. at 318.
The Court revisited the issue of midstream Miranda warnings in Missouri v.
Seibert. There, police officers arrested the defendant for setting a fire that killed a
mentally ill teenager. 542 U.S. at 604–05 (plurality opinion). Unlike Elstad, where
26
“the officer’s initial failure to warn was an oversight,” id. at 614 (internal quotation
marks omitted), the officers in Seibert “used a two-step questioning technique based
on a deliberate violation of Miranda,” id. at 620 (Kennedy, J., concurring in the
judgment). The interrogating officer deliberately chose to withhold Miranda
warnings in accordance with a sanctioned interrogation technique he had been taught:
“question first, then give the warnings, and then repeat the question until I get the
answer that she’s already provided once.” Id. at 605–06 (plurality opinion) (internal
quotation marks omitted). Employing this strategy, the officer questioned the
defendant for 30 to 40 minutes until she confessed, gave her a 20-minute break,
provided Miranda warnings, and then led her back over the same ground. Id. at 604–
05.
Five Justices admonished against this “question-first” technique designed to
undermine Miranda and concluded that the defendant’s postwarning confession was
inadmissible. Id. at 617; id. at 620–22 (Kennedy, J., concurring in the judgment).
But no single rationale commanded a majority of the Court.
The plurality opinion, which four Justices joined, suggested the “threshold
issue when interrogators question first and warn later is . . . whether it would be
reasonable to find that in these circumstances the warnings could function
‘effectively’ as Miranda requires.” Id. at 611–12. According to the plurality,
midstream Miranda warnings are not effective unless “a reasonable person in the
suspect’s shoes would [ ] have understood them to convey a message that she
retained a choice about continuing to talk.” Id. at 617. The plurality laid out five
27
nonexclusive factors to aid courts in determining “whether Miranda warnings
delivered midstream could be effective”:
[1] the completeness and detail of the questions and answers in the first
round of interrogation, [2] the overlapping content of the two statements,
[3] the timing and setting of the first and the second, [4] the continuity of
police personnel, and [5] the degree to which the interrogator’s questions
treated the second round as continuous with the first.
Id. at 615.
Justice Kennedy concurred in the judgment, but he believed the plurality’s test
“cut[] too broadly,” id. at 622 (Kennedy, J.), because it would apply in instances of
“both intentional and unintentional two-stage interrogations,” id. at 621. Instead,
Justice Kennedy articulated “a narrower test applicable only in the infrequent
case . . . in which the two-step interrogation technique was used in a calculated way
to undermine the Miranda warning.” Id. at 622. For Justice Kennedy, the first
question would be whether the interrogating officer deliberately withheld Miranda
warnings “to obscure both the practical and legal significance of the admonition
when finally given.” Id. at 620. If the answer to that question is no, Justice Kennedy
explained that the “admissibility of postwarning statements should continue to be
governed by the [voluntariness] principles of Elstad.” Id. at 622. But if the answer
is yes, postwarning statements “related to the substance of prewarning statements
must be excluded unless curative measures are taken” to “ensure that a reasonable
person in the suspect’s situation would understand the import and effect of the
Miranda warning.” Id. Justice Kennedy gave two examples of such curative
measures: (1) “a substantial break in time and circumstances between the prewarning
28
statement and the Miranda warning,” and (2) “an additional warning that explains the
likely inadmissibility of the prewarning custodial statement.” Id.
Like Justice Kennedy, the plurality distinguished the police conduct in Elstad
from the deliberate use of a question-first-warn-later interrogation strategy:
“Although the Elstad Court expressed no explicit conclusion about either officer’s
state of mind, it is fair to read Elstad as treating the living room conversation as a
good-faith Miranda mistake, not only open to correction by careful warnings before
systematic questioning in that particular case, but posing no threat to warn-first
practice generally.” Id. at 615 (plurality opinion); see also id. at 620–21 (Kennedy,
J., concurring in the judgment). But the plurality emphasized that its conclusion did
not turn on the subjective intent of the interrogating officer. Id. at 616 & n.6
(plurality opinion). “Because the intent of the officer will rarely be as candidly
admitted as it was here (even as it is likely to determine the conduct of the
interrogation),” the plurality believed the focus should be “on facts apart from intent
that show the question-first tactic at work.” Id. at 616 n.6.4
The four dissenting Justices likewise resisted Justice Kennedy’s attempt to
focus the Court’s analysis on the intent of the interrogating officer. Id. at 623
4
Justice Breyer wrote separately to express his preference for a “fruits” rule and
good-faith exception to two-step interrogations: “Courts should exclude the ‘fruits’ of
the initial unwarned questioning unless the failure to warn was in good faith.” Seibert,
542 U.S. at 617 (Breyer, J., concurring). Although Justice Breyer joined the plurality
opinion in full, he also stated that he agreed with Justice Kennedy’s opinion “insofar
as it is consistent with [the application of a] good-faith exception” to the exclusionary
rule. Id. at 618.
29
(O’Connor, J., dissenting). Because “[f]reedom from compulsion lies at the heart of
the Fifth Amendment,” and “voluntariness is a matter of the suspect’s state of mind,”
id. at 624, the dissenting Justices declined to recognize “an exception to Elstad for
intentional violations,” id. at 625. They also rejected the plurality’s objective inquiry
into the effectiveness of Miranda warnings because, in their view, it relied on the
same “cat out of the bag” theory the Court rejected in Elstad. Id. at 627. Instead, the
dissenting Justices would have evaluated the two-step interrogation and admissibility
of the defendant’s postwarning statement under the voluntariness standard
established in Elstad. Id. at 628.
b.
The splintered nature of Seibert has given rise to a debate over whether Justice
Kennedy’s concurrence or the four-Justice plurality opinion provides the controlling
standard for evaluating the admissibility of statements given after midstream
Miranda warnings. In the past, we declined to pick a side in the debate and instead
applied both tests to the facts of the case before us. See, e.g., United States v.
Carrizales–Toledo, 454 F.3d 1142, 1151–53 (10th Cir. 2006); United States v. Crisp,
371 F. App’x 925, 929–33 (10th Cir. 2010) (unpublished). Today we stake out our
position: Justice Kennedy’s concurrence is the binding opinion from Seibert.
Vertical stare decisis is absolute and requires us, as middle-management
circuit judges, to follow applicable Supreme Court precedent in every case. So once
the Supreme Court has adopted a rule, standard, or interpretation, we must use that
same rule, standard, or interpretation in later cases. See Seminole Tribe of Florida v.
30
Florida, 517 U.S. 44, 67 (1996) (“When an opinion issues for the Court, it is not only
the result but also those portions of the opinion necessary to that result by which we
are bound.”). This is a straightforward task when the Court issues a single majority
opinion that agrees on both the result and the reasoning. But how do we identify the
legal rules of the road when the Justices whose votes were collectively necessary to
the judgment disagree on the appropriate rationale to reach that judgment? We have
a rule for that. And it’s simply stated, if not always easily applied.
In Marks v. United States, the Supreme Court instructed: “When a fragmented
Court decides a case and no single rationale explaining the result enjoys the assent of
five Justices, ‘the holding of the Court may be viewed as that position taken by those
Members who concurred in the judgment[] on the narrowest grounds.” 430 U.S. 188,
193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of
Stewart, Powell, and Stevens, JJ.)). The Marks Court, in other words, recognized an
exception to the longstanding precept that precedent arises only when a decisional
rule attracts a majority of Justices. Cf. Akhil Reed Amar, America’s Unwritten
Constitution: The Precedents and Principles We Live By 356–61 (2012) (suggesting
the majority rule for precedent formation has deep roots in Anglo-American judicial
tradition). But Marks itself “did not elaborate on how to identify the narrowest
grounds” for a splintered Supreme Court decision. Bryan A. Garner et al., The Law
of Judicial Precedent 199–200 (2016).
We have clarified that a concurring opinion in a splintered Supreme Court
decision is the narrowest under Marks, and thus produces a determinate holding,
31
when it is “a logical subset” of the other opinion(s) concurring in the judgment.
Carrizales–Toledo, 454 F.3d at 1151 (quoting King v. Palmer, 950 F.2d 771, 781
(D.C. Cir. 1991) (en banc)). If the instances in which a concurring opinion would
reach the same result as the splintered decision in future cases form a logical subset
of the instances in which the other concurring opinion(s) would reach the same result,
that opinion controls.5 EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d
418, 431 (6th Cir. 2020) (citing King, 950 F.2d at 781). And its precedential force is
absolute: “The binding opinion from a splintered decision is as authoritative for
lower courts as a nine-Justice opinion. . . . This is true even if only one Justice issues
the binding opinion.” United States v. Duvall, 740 F.3d 604, 611 (D.C. Cir. 2013)
(Kavanaugh, J., concurring in the denial of rehearing en banc) (internal quotation
marks omitted).
Of course, it is not always possible to identify the opinion that “is a logical
subset” of the other concurring opinion(s). Carrizales–Toledo, 454 F.3d at 1151(quoting King, 950 F.2d at 781). Sometimes there is no discernable implicit
consensus or “common denominator” among the Justices who support the Court’s
judgment, id., “making Marks an exercise in chasing the wind,” United States v.
Kratt, 579 F.3d 558, 562 (6th Cir. 2009). In that situation—“when the various
5
To be clear, Marks is not an invitation from the Supreme Court to read its
splintered decisions like tea leaves in an attempt to divine how a future Supreme Court
might decide a case. “[N]ose-counting” of that sort is an “exercise for litigators, not
jurists.” People v. Lopez, 286 P.3d 469, 485 (Cal. 2012) (Liu, J., dissenting). The goal
for a lower court under Marks is to determine how the principles articulated in a prior
Supreme Court decision apply to the case before it.
32
opinions supporting the Court’s decision are mutually exclusive”—we do not apply
Marks.6 Carrizales–Toledo, 454 F.3d at 1151.
Now back to Seibert. There is a coherent way to apply Marks here, which no
doubt explains why most courts have reached the same conclusion: Justice Kennedy’s
concurrence in Seibert is the controlling opinion from that case.
The Seibert plurality opinion replaces the central voluntariness standard of
Elstad with an objective inquiry into whether midstream Miranda warnings were
effective to apprise a reasonable person in the suspect’s shoes of his rights.
According to the plurality, this effectiveness test—which considers non-exhaustive
factors such as the timing and location of interrogations, continuity of police
6
The Supreme Court has twice sidestepped Marks because it did not find it
“useful to pursue the Marks inquiry to the utmost logical possibility when it has so
obviously baffled and divided the lower courts that have considered it.” Grutter v.
Bollinger, 539 U.S. 306, 325 (2003) (quoting Nichols v. United States, 511 U.S. 738,
745–46 (1994)). And in its most recent encounter with Marks, the Court chose to
ignore a possibly binding precedent—opting instead to address the underlying merits—
without providing any justification whatsoever for doing so. See Hughes v. United
States, 138 S. Ct. 1765, 1771–72 (2018) (declining to resolve which opinion in
Freeman v. United States, 564 U.S. 522 (2011), is controlling under Marks). We, of
course, don’t have that luxury. As now-Justice Kavanaugh explained during his time
on the D.C. Circuit:
When the Supreme Court itself applies Marks, it is not bound in the same
way that lower courts are bound by Marks to strictly follow the narrowest
opinion from a prior splintered Supreme Court decision. That’s because
the Supreme Court is free to reconsider or refine or tweak its own
precedents—including splintered precedents—and it does so in
appropriate cases. Lower courts, by contrast, are not free to reconsider
or refine or tweak Supreme Court precedents. Marks is therefore even
more important at the lower court level.
Duvall, 740 F.3d at 611 n.2 (concurring in the denial of rehearing en banc).
33
personnel, overlapping content of statements, etc.—applies in all cases involving
sequential unwarned and warned statements. Under Justice Kennedy’s concurrence,
an objective inquiry into change in time and circumstances between the unwarned
and warned statements—what he dubbed “curative measures”—to determine whether
midstream warnings were reasonably effective applies only in cases involving the
deliberate use of a two-step interrogation technique calculated to circumvent
Miranda. Simply put, the analysis of the Seibert plurality opinion and Justice
Kennedy’s concurrence merge when a two-step interrogation was deliberately used to
evade the requirements of Miranda, and the tests diverge when the interrogating
officer(s) unintentionally performed a two-step interrogation.
The cases governed by Justice Kennedy’s approach thus form a logical subset
of the cases governed by the plurality’s approach. Postwarning confessions made
after objectively ineffective midstream Miranda warnings—determined by an inquiry
into the change in time and circumstances between the prewarning and postwarning
statements, and any other curative measures—are not always inadmissible, as the
plurality concluded; they are inadmissible only when the interrogating officer(s)
intentionally used a two-step interrogation strategy calculated to undermine Miranda.
Whenever this narrower standard is satisfied and a confession is deemed
inadmissible, the Seibert plurality would reach the same conclusion, because they
would deem a confession made after objectively ineffective midstream warnings
inadmissible in all cases where a two-step interrogation—intentionally or
unintentionally—took place. In other words, Justice Kennedy’s legal standard and
34
the alternative standard endorsed by the Seibert plurality would necessarily point to
the same result in any case where Justice Kennedy would deem an incriminating
statement given after midstream Miranda warnings inadmissible.
Justice Kennedy’s Seibert concurrence, then, is both a logical subset of the
plurality opinion and the narrowest grounds for the Court’s judgment. So it is the
“controlling opinion” from Seibert, Marks, 430 U.S. at 193, and we must apply its
reasoning as we would the reasoning of any other Supreme Court precedent, Duvall,
740 F.3d at 611 (Kavanaugh, J., concurring in the denial of rehearing en banc).
We are in good company in holding that Justice Kennedy’s Seibert opinion
provides the controlling standard for assessing the admissibility of incriminating
statements given subsequent to midstream Miranda warnings. The majority of our
sister circuits have applied Marks to Seibert and reached the same conclusion.
United States v. Capers, 627 F.3d 470, 476 (2d Cir. 2010); United States v. Ollie, 442
F.3d 1135, 1142 (8th Cir. 2006); United States v. Street, 472 F.3d 1298, 1313 (11th
Cir. 2006); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006); United
States v. Williams, 435 F.3d 1148, 1157–58 (9th Cir. 2006); United States v. Naranjo,
426 F.3d 221, 231–32 (3d Cir. 2005) (Alito, J., on the panel); United States v.
Mashburn, 406 F.3d 303, 308–09 (4th Cir. 2005).
A string of Seventh Circuit decisions also supports our conclusion that Justice
Kennedy’s concurrence set out the holding of Seibert. United States v. Stewart, 388
F.3d 1079, 1090 (7th Cir. 2004) (determining that Justice Kennedy’s Seibert
concurrence controls under Marks); United States v. Stewart, 191 F. App’x 495, 497
35
n.2 (7th Cir. 2006) (unpublished) (“In Seibert, Justice Kennedy’s opinion concurring
in the judgment provided the narrowest grounds for decision and thus constitutes the
holding of the Court.”); United States v. Stewart, 536 F.3d 714, 718–20 (7th Cir.
2008) (applying Justice Kennedy’s Seibert opinion and clarifying the burden of proof
and standard of review applicable to the determination of deliberateness). In United
States v. Stewart, Judge Sykes ably summarized the opinions in Seibert and pointed
out the common denominator for the Court’s judgment: “[A]s to deliberate two-step
interrogations in which Miranda warnings are intentionally withheld until after the
suspect confesses, the central voluntariness inquiry of Elstad has been replaced by a
presumptive rule of exclusion, subject to a multifactor test for change in time, place,
and circumstances from the first statement to the second.” 388 F.3d at 1090.
A few years later, a different panel of the Seventh Circuit, along with the Sixth
Circuit, deviated from this majority view. In United States v. Heron, the Seventh
Circuit recognized that “parts” of Justice Kennedy’s “reasoning could be construed as
a narrower ground than the one described in [the] plurality opinion” because his
concurrence “would carve out a smaller exception to Elstad.” 564 F.3d 879, 884 (7th
Cir. 2009). But this time the court determined that Justice Kennedy’s concurrence
did not provide the narrowest grounds for the judgment in Seibert because at least
three members of the plurality and the four dissenting Justices rejected an intent-
based approach. Id. at 884–85. Troubled by this disagreement, the court concluded
36
that Seibert is not amenable to a Marks analysis.7 Id. Falling in stride with Heron,
the Sixth Circuit reached the same conclusion for the same reason. United States v.
Ray, 803 F.3d 244, 270–72 (6th Cir. 2015) (holding that Seibert did not produce a
binding holding and adopting the Seibert plurality opinion as the law of the circuit).
Under the logic of Heron and Ray, Justice Kennedy’s Seibert concurrence does
not share a common denominator with, or cannot be viewed as a logical subset of, the
plurality opinion because a majority of the Court disavowed consideration of the
interrogating officer’s subjective intent. This seems entirely reasonable at first blush.
After all, it is “usually a judicial decision’s reasoning—its ratio decidendi—that
allows it to have life and effect in the disposition of future cases.” Ramos v.
Louisiana, 140 S. Ct. 1390, 1404 (2020) (plurality opinion). What must give us
pause, however, is that this novel approach to applying Marks—requiring a majority
of the Justices to agree on a single underlying rationale before a binding rule can be
discerned—cannot be squared with Marks itself.
7
Although the Seventh Circuit found Marks not workable in Heron, the court
declined “to resolve once and for all what rule or rules governing two-step
interrogations can be distilled from Seibert.” 564 F.3d at 885. Instead, the court
applied both Justice Kennedy’s concurrence and the Seibert plurality opinion because
they yielded the same result. Id. at 885–87. So while Heron appears to have created
an intra-circuit split (and an inter-split circuit) on the precedential effect of Seibert, it
is not clear exactly where the Seventh Circuit stands on the issue. See United States v.
Lee, 618 F.3d 667, 678 (7th Cir. 2010) (“[T]wo tests have emerged from Seibert; this
Court has yet to choose which test should govern.”). Two other circuit courts have
avoided deciding the precedential effect of Seibert in cases in which the outcome would
be the same under either Justice Kennedy’s concurrence or the plurality opinion.
United States v. Straker, 800 F.3d 570, 617 (D.C. Cir. 2015); United States v. Widi,
684 F.3d 216, 221 (1st Cir. 2012).
37
Marks applied its eponymous rule in the context of a due process challenge to
an allegedly ex post facto criminal punishment for transporting obscene materials.
430 U.S. at 189–91. At issue was the precedential effect of the Court’s prior
splintered decision in Memoirs v. Massachusetts, 383 U.S. 413 (1966). In Memoirs,
a three-Justice plurality concluded that sexually explicit literature was protected
under the First Amendment unless it satisfied the three-part definition of obscenity
laid out in Roth v. United States, 354 U.S. 476 (1957).8 Memoirs, 383 U.S. at 418–
19. Justices Black and Douglas concurred in the judgment, but they took the position
that material could never be constitutionally banned as obscene. Id. at 421 (Black,
J.); id. at 424–33 (Douglas, J.); see also Marks, 430 U.S. at 193 (explaining that
Justices Black and Douglas stated “their well-known position that the First
Amendment provides an absolute shield against governmental action aimed at
suppressing obscenity”). Justice Stewart also concurred based on his view that only
hardcore pornography could be suppressed. Memoirs, 383 U.S. at 421 (citing his
dissenting opinions in Mishkin v. New York, 383 U.S. 502, 518 (1966), and Ginzburg
v. United States, 383 U.S. 463, 498–99 (1966)).
8
The proper test, according to the three-Justice Memoirs plurality, was
“[w]hether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient interest. . . . Under
this definition, as elaborated in subsequent cases, three elements must coalesce: it must
be established that (a) the dominant theme of the material taken as a whole appeals to
a prurient interest in sex; (b) the material is patently offensive because it affronts
contemporary community standards relating to the description or representation of
sexual matters; and (c) the material is utterly without redeeming social value.” 383
U.S. at 418 (cleaned up).
38
In sum, six Justices agreed that the obscenity conviction in Memoirs could not
stand, but there was no majority agreement on the appropriate First Amendment
standard to apply or the proper reasoning to reach that result. Marks, 430 U.S. at 192(recognizing “the Memoirs standards never commanded the assent of more than three
Justices”). Yet Marks held that the opinion of the three-Justice Memoirs plurality
(which applied the Roth tests) “constituted the holding of the Court and provided the
governing standards.” Id. at 194. That’s because in every case in which the Memoirs
plurality would deem an obscenity prosecution unconstitutional under their test,
Justices Black and Douglas (who ascribe to the broader view that obscene speech is
always constitutionally protected) would necessarily agree with the plurality’s result.9
9
This commonsensical approach to applying Marks also explains how a holding
could be derived from Furman v. Georgia, 408 U.S. 238 (1972), and applied in Gregg
v. Georgia, 428 U.S. 153 (1976), in which the Marks rule originated. In Furman, five
Justices agreed that the death penalty statutes at issue were unconstitutional—though
for different reasons. Justices Brennan and Marshall concurred based on their view
that the death penalty is always unconstitutional under the Eighth Amendment. 408
U.S. at 305–06 (Brennan, J.); id. at 369–71 (Marshall, J.). The other three Justices
who concurred in the judgments likewise deemed the statutes invalid under the Eighth
Amendment, but they left open the question whether the death penalty may ever be
imposed. Justices Stewart and White concluded that the statutes violated the Eighth
Amendment because they permitted capital punishment to be imposed arbitrarily and
capriciously. Id. at 306 (Stewart, J.); id. at 310–11 (White, J.). For Justice Douglas,
the statutes were unconstitutional because they applied disproportionately against
minorities and the poor due to their discretionary aspect and the ability of wealthier
defendants to obtain superior counsel. Id. at 255–57 (Douglas, J.).
Although no five Justices agreed on a single underlying rationale, the Gregg
plurality concluded that the position taken by Justices Stewart and White was the
narrowest grounds for the judgments in Furman and constituted the Court’s holding.
Gregg, 428 U.S. at 169 n.15 (plurality opinion). Again, that’s because cases involving
death penalty statutes that would be deemed impermissible under Justice Stewart and
Justice White’s approach represent the universe of cases in which the rationales of each
39
See King, 950 F.2d at 781 (“Because Justices Black and Douglas had to agree, as a
logical consequence of their own position, with the plurality’s view that anything
with redeeming social value is not obscene, the plurality of three in effect spoke for
five Justices: Marks’ ‘narrowest grounds’ approach yielded a logical result.”).
In other words, the Marks rule does not require agreement as to both the result
and the reasoning of Justices in the majority to produce a determinate holding. If
that were not so, Marks itself would be wrongly decided. There was no rationale
common to a majority of Justices in Memoirs—the Memoirs plurality disavowed
Justice Douglas and Justice Black’s view that the First Amendment absolutely
prohibits suppressing obscenity—yet the Marks Court derived a binding rule from
Memoirs. The Marks rule works the same way here. Justice Kennedy’s Seibert
opinion is a logical subset of the plurality’s not because it agrees with all of the
plurality’s reasoning but because in every case in which it would suppress a
statement given after midstream Miranda warnings, the plurality opinion would reach
the same result.
This is, of course, not to say that the respective rationales of a splintered
Supreme Court decision are irrelevant. The way we identify the “narrowest grounds”
of decision is by identifying differences in the reasoning of the split opinions
necessary to the judgment. Only then can we determine which competing rationale
Justice whose vote was necessary to the judgments in Furman would point to the same
result. “Selecting the opinions of Justices Stewart and White as the holding of Furman
in Gregg was thus unproblematic.” King, 950 F.2d at 781.
40
(if any) is a logical subset of the other(s), thus yielding outcome convergence, such
that it controls. But a fundamental divergence in the legal reasoning of a concurrence
and the legal reasoning of a plurality opinion does not “necessarily destroy a subset-
superset relationship between the two opinions.” Kratt, 579 F.3d at 562. Otherwise,
“Marks would stand for little,” id., as there are multiple opinions in splintered cases
“precisely because the Justices did not agree on a common rationale,” Duvall, 740
F.3d at 613 (Kavanaugh, J., concurring in the denial of rehearing en banc). The
Supreme Court’s most recent application of Marks confirms this conclusion.
In Glossip v. Gross, 576 U.S. 863 (2015), the Court held that the three-Justice
plurality opinion in Baze v. Rees, 553 U.S. 35 (2008), was controlling under Marks.
Glossip, 576 U.S. at 879 n.2. The Baze plurality concluded that a challenged method
of execution is cruel and unusual only if it poses an “objectively intolerable risk of
harm” (i.e., a “substantial risk of serious harm”) in the face of a readily available
alternative procedure. 553 U.S. at 50 (plurality opinion) (internal quotation marks
omitted). Justices Scalia and Thomas concurred in the judgment upholding
Kentucky’s lethal injection procedures, but they said a method of execution violates
the Eighth Amendment only when it is “deliberately designed to inflict pain.” Id. at
94 (Thomas, J.). They also expressly rejected the plurality’s approach as
fundamentally inconsistent with the original understanding of the Cruel and Unusual
Punishments Clause, unsupported by Eighth Amendment precedent, and
impracticable for lower courts to apply. Id. at 94, 103–05. As the opening line of
Justice Thomas’s concurrence, which Justice Scalia joined, put it: “I write separately
41
because I cannot subscribe to the plurality opinion’s formulation of the governing
standard.” Id. at 94.
A few years later, in Glossip, the Court applied Marks and clarified that the
three-Justice plurality opinion in Baze set out the holding of the case because Justices
Scalia and Thomas took the broader position. Glossip, 576 U.S. at 879 n.2; see also
Bucklew v. Precythe, 139 S. Ct. 1112, 1121 (2019) (reaffirming that the Baze
plurality opinion is controlling under Marks). Justices Thomas and Scalia reiterated
their view that the Eighth Amendment “prohibits only those methods of execution
that are deliberately designed to inflict pain,” but this time they joined the Court’s
majority opinion because it correctly explained why the petitioners’ claim failed even
under the “controlling opinion” in Baze. Glossip, 576 U.S. at 899–900 (Thomas J.,
concurring) (brackets omitted). Notably, the four dissenting Justices in Glossip
argued that the Baze plurality opinion was not controlling under Marks because
“none of the Members of the Court whose concurrences were necessary to sustain the
Baze Court’s judgment articulated a similar view.” Id. at 971 (Sotomayor, J.,
dissenting).
The Glossip dissent was right about one thing: there was no rationale common
to a majority of the Justices in Baze. Obviously, there is a fundamental distinction
between legal reasoning that turns on whether pain is a product of some subjective
deliberate design (Justice Thomas and Justice Scalia’s approach) and legal reasoning
that looks objectively into whether there is a substantial risk of harm (the Baze
plurality’s approach). Yet Glossip held that the opinion of the three-Justice Baze
42
plurality constituted the holding of the Court and provided the legal standard that
governs Eighth Amendment method-of-execution challenges. That’s because—
granting the reasonable assumption that an execution method deliberately designed to
inflict unnecessary pain would also pose a substantial risk of inflicting such pain—
the Baze plurality’s standard and the alternative approach endorsed by Justices
Thomas and Scalia would necessarily point to the same result in any case where the
plurality would find an execution method constitutionally permissible. Jackson v.
Danberg, 594 F.3d 210, 222 (3d Cir. 2010) (holding the Baze plurality opinion
controls under Marks because “any lethal injection protocol constitutionally
acceptable to the plurality would invariably pass” Justice Thomas and Justice
Scalia’s standard); see also Warner v. Gross, 776 F.3d 721, 729 n.6 (10th Cir. 2015)
(citing Jackson and reaching the same conclusion about the holding of Baze).
From where we sit, the most definitive source of guidance as to the Marks
rule’s application is the Supreme Court’s own application of the rule. The Court is,
after all, not only the final arbiter of constitutional questions but also the inventor of
the Marks rule. Thus, even without conscious or implicit agreement on an underlying
rationale to reach a decision—indeed, even in the face of express disagreement—a
concurring opinion can still reflect the narrowest grounds of the decision such that it
controls under Marks. If that were not so, Glossip would be wrongly decided.
No matter how vigorously the Seibert plurality (and the dissent) may disagree
with Justice Kennedy’s intent-based approach, his standard will produce results the
plurality would necessarily agree with in any case suppressing statements given after
43
midstream Miranda warnings. Justice Kennedy’s opinion in Seibert therefore
constitutes the holding of the case and provides the governing standard here. While
there is admitted awkwardness in treating as precedential an opinion no other Justice
joined, this is the settled practice when that opinion is the determinative one. See
Marks, 430 U.S. at 193; Glossip, 576 U.S. at 879 n.2. And until the Supreme Court
itself chooses to reconsider Marks, we cannot abandon it from below.
c.
Justice Kennedy’s Seibert concurrence provides the substantive standard that
controls the outcome here, but his opinion is silent as to which party bears the burden
of proving or disproving deliberateness and what that burden should be. Ethan
argues that we should follow the lead of our sister circuits and require the
government to prove that the agents’ failure to provide the requisite warnings was not
part of a deliberate two-step interrogation strategy used to circumvent Miranda. See
Capers, 627 F.3d at 479; Stewart, 536 F.3d at 719; Ollie, 442 F.3d at 1142–43. The
government does not disagree with Ethan’s suggestion, and neither do we.
Although “the law generally frowns on requiring a party to prove a negative,”
there are several reasons why it is appropriate to burden the government with
disproving deliberateness. Ollie, 442 F.3d at 1143. Placing that burden on the
government is consistent with Supreme Court precedent requiring the government to
prove by a preponderance of the evidence that the defendant waived his Miranda
rights and voluntarily confessed before a confession may come into evidence.
Colorado v. Connelly, 479 U.S. 157, 168–69 (1986) (waiver); Lego v. Twomey, 404
44
U.S. 477, 489 (1972) (voluntariness of confession). Putting the burden on the
government to disprove deliberateness also makes sense as a practical matter because
it will help ensure probative evidence, all or most of which will typically be in the
government’s hands, is brought to the court’s attention. Ollie, 442 F.3d at 1143;
Capers, 627 F.3d at 479. Accordingly, in cases involving sequential unwarned and
warned confessions, the government bears the burden of proving by a preponderance
of the evidence that the interrogating officer did not deliberately withhold the
requisite warnings as part of a calculated strategy to foil Miranda.
One other word on applying Seibert. The question whether the interrogating
officer made a conscious decision to withhold warnings as part of a deliberate
strategy to circumvent Miranda will, of course, often turn on subjective evidence of
the officer’s intent. But deliberateness may also be inferred from objective
indications of subjective intent to frustrate Miranda. In Seibert, for example, the
officer confronted the defendant with her inadmissible prewarning statements and
pushed her to repeat them during the postwarning interview, which showed the
deliberate two-step strategy at work. 542 U.S. at 621 (Kennedy, J., concurring in the
judgment) (“The postwarning interview resembled a cross-examination.”); cf. Elstad,
470 U.S. at 316 (observing that the officers did not “exploit the unwarned
admission”). Conversely, the lack of overlap between warned and unwarned
confessions is evidence that the interrogating officer did not intentionally withhold
the requisite warnings to undermine the suspect’s Miranda rights. Stewart, 536 F.3d
at 722.
45
In sum, the standard for assessing the admissibility of confessions given
subsequent to midstream Miranda warnings can be applied using a straightforward
analysis: First, was the initial self-incriminating statement, though voluntary,
obtained in violation of the defendant’s Miranda rights? If not, there is no need to go
further. Cortez, 965 F.3d at 840. If the initial statement was obtained in violation of
the defendant’s Miranda rights, has the government shown by a preponderance of the
evidence that the questioning officer(s) did not engage in a deliberate two-step
interrogation calculated to undermine Miranda? If so, the defendant’s postwarning
statement is admissible so long as it, too, was voluntary. If not, the postwarning
statement is inadmissible unless the objective circumstances show that a reasonable
person in the defendant’s shoes would understand the import and effect of the
midstream Miranda warnings.
d.
Turning back to Ethan’s appeal, we already concluded that the agents obtained
his initial self-incriminating statement in violation of his Miranda rights. But a
review of the evidence also leads us to conclude that the agents did not use a two-step
interrogation technique “in a calculated way to undermine the Miranda warning.”
Seibert, 542 U.S. at 622 (Kennedy, J., concurring in the judgment).
There is no subjective evidence of intent here—no testimony, for example, by
the interrogating agents suggesting they intentionally withheld Miranda warnings to
46
deprive Ethan of his rights.10 Agent Rominger, the lead investigator who was
responsible for the bulk of the interrogation, testified that he did not believe Ethan
was in custody until his initial confession. But once Ethan admitted he made the
pressure cooker bomb, Agent Rominger explained, he knew Ethan “was no longer
free to leave” and believed Ethan would recognize as much. At that point—as soon
as Agent Rominger believed Ethan was in custody—he immediately provided
Miranda warnings.
Ethan attacks Agent Rominger’s explanation for deferring Miranda
warnings—that he mistakenly believed Ethan was not in custody until he confessed—
as unworthy of belief because the agent’s questions were crafted to elicit
incriminating responses. Although Agent Rominger certainly sought a confession
when he confronted Ethan with the evidence discovered during the search (i.e.,
engaged in interrogation for Miranda purposes), that does not undercut the agent’s
subjective belief about Ethan’s custodial status. Cf. United States v. Chee, 514 F.3d
1106, 1113–14 (10th Cir. 2008) (concluding that the defendant’s “contention that he
had to be given Miranda warnings once the investigative process moved to the point
where [the agent] was trying to obtain a confession is simply incorrect”). The “task
10
As evidence of deliberateness, Ethan points to Detective Larranaga’s
testimony that, in his experience, providing Miranda warnings can result in the suspect
requesting an attorney, ending an interview, or refusing to talk further. But Detective
Larranaga did not participate in the pre-Miranda questioning that resulted in Ethan’s
initial confession. His thoughts therefore do not speak to the intent of the interrogating
agents. Stewart, 536 F.3d at 722 (“The determination of whether a question-first
strategy was deliberately used does not require an inquiry into the state of mind of
every officer involved in the interrogation.”).
47
of defining custody is a slippery one, and policemen investigating serious crimes
cannot realistically be expected to make no errors whatsoever.” Elstad, 470 U.S. at
309 (cleaned up). For that reason, one plausible explanation why an officer might
legitimately wait to deliver Miranda warnings is that the “officer may not realize that
a suspect is in custody and warnings are required.” Seibert, 542 U.S. at 620(Kennedy, J., concurring in the judgment).
That is the plausible explanation here for the agents’ failure to administer
Miranda warnings in a timely fashion. Unlike Seibert, Ethan was not arrested, taken
to a police station, and questioned in an interrogation room. Id. at 604–05 (plurality
opinion). Ethan’s interview began as consensual questioning in his home, and it did
not turn into a custodial interrogation until Agent Rominger confronted him with the
evidence discovered during the search. The difficulty in pinpointing the moment
when Ethan’s interview became custodial supports a conclusion that the agents did
not engage in a deliberate two-step interrogation to thwart Miranda. This conclusion
is confirmed by the lack of any objective indicia that the agents set out to
intentionally circumvent or undermine the protections the Miranda warnings provide.
Agent Rominger did not withhold Miranda warnings, solicit a full confession,
and lead Ethan back through his confession again. Ethan’s prewarning confession
was limited to his admission that he made the pressure cooker bomb. His
postwarning confession was not just a repetition of that admission but contained far
more details about, among other things, how he made the bomb, planted it under
MC’s bed, and wanted MC dead. Had the agents intended to obtain a damning
48
confession first, give Miranda warnings, and then re-obtain the confession, as the
officers did in Seibert, they would have asked about those incriminating details much
earlier. The agents did not do so. Nor did they use Ethan’s initial admission to
cross-examine or pressure him to answer their questions during the postwarning
interrogation.
For these reasons, the government has met its burden of showing the agents
did not engage in a deliberate two-step interrogation strategy to frustrate Miranda.
That means the admissibility of Ethan’s postwarning statements is governed by the
voluntariness principles of Elstad. Seibert, 542 U.S. at 622 (Kennedy, J., concurring
in the judgment). So long as Ethan knowingly and voluntarily waived his Miranda
rights and made both his prewarning and postwarning statements voluntarily, his
postwarning statements are admissible. Elstad, 470 U.S. at 309, 318.
To be valid, a waiver of Miranda rights “must be made voluntarily, knowingly,
and intelligently.” United States v. Smith, 606 F.3d 1270, 1276 (10th Cir. 2010).
When assessing the voluntariness of a Miranda waiver, we look at: “[1] the suspect’s
age, intelligence, and education; [2] whether the suspect was informed of his or her
rights; [3] the length and nature of the suspect’s detention and interrogation; and [4]
the use or threat of physical force against the suspect.” Id. We consider the same
factors when determining whether an incriminating statement was voluntarily given.
Id.; Carrizales-Toledo, 454 F.3d at 1153. “The essence of voluntariness is whether
the government obtained the statements by physical or psychological coercion such
49
that the defendant’s will was overborne.” Carrizales-Toledo, 454 F.3d at 1153(quoting Rith, 164 F.3d at 1333).
Ethan was an 18-year-old high school senior at the time of his arrest. Smith,
606 F.3d at 1277 (holding that the defendant, who was “nearly 21 years of age and
had completed the tenth grade” validly waived his Miranda rights and voluntarily
confessed). Although he was not on track to graduate that year, this clearly was not
due to a lack of intelligence or education that would render him susceptible to
coercion. Ethan taught himself how to build a sophisticated explosive device from
homemade materials, built his own computer, and “displayed his fortitude” when he
asked the agents if they had a warrant to enter his home. See Rith, 164 F.3d at 1333.
The agents questioned Ethan in his home; he was not subjected to any physical
punishments or threats; the interview was not unduly prolonged; and the agents’
questioning, though accusatory at one point, was done in a conversational tone and
never rose to the level of coercion. Considering the relevant factors in light of the
totality of the circumstances, there is no doubt that both Ethan’s prewarning and
postwarning statements were voluntary.
Based on those same considerations, we conclude that Ethan voluntarily,
knowingly, and intelligently waived his Miranda rights. According to Agent
Rominger’s testimony, which the district court deemed credible, Ethan indicated he
understood his Miranda rights and continued to speak with the agents. Nothing more
was required for Ethan’s waiver to be valid. Berghuis v. Thompkins, 560 U.S. 370,
385 (2010) (“[T]he law can presume that an individual who, with a full understanding
50
of his or her rights, acts in a manner inconsistent with their exercise has made a
deliberate choice to relinquish the protection those rights afford.”).
Because Ethan’s initial confession was voluntary, the voluntary statements he
made after he received the Miranda warnings and waived his right to remain silent
were properly admitted. The district court therefore did not err when it denied
Ethan’s motion to suppress his postwarning statements.
III.
For all the reasons we have given, the judgment of the district court is
AFFIRMED.
51