United States District Court, W.D. North Carolina, Charlotte Division
J. CONRAD, JR.UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court regarding the
Defendant's Motion to Suppress, (Doc. No. 74);
Plaintiff's Opposition to Defendant's Motion to
Suppress, (Doc. No. 75); and Defendant's Reply to the
Government's Response in Opposition to the Motion to
Suppress, (Doc. No. 82). During the course of the trial, the
Court granted the Defendant's Motion to Suppress for the
reasons explained below.
Alejandro Chavez-Lopez's (“Defendant”) arrest
for his involvement in a conspiracy to possess with the
intent to distribute cocaine, police officers interviewed him
at the police station for twenty-five minutes prior to
reading him his Miranda rights. Miranda v.
Arizona, 384 U.S. 436 (1966). The government
self-suppressed the pre-Miranda statements, and
Defendant sought suppression of the post-Miranda
Court found that Miranda warnings were deliberately
delayed, thereby creating a presumption of compulsion
regarding the Defendant's post-Miranda
statements under U.S. v. Mashburn, 406 F.3d 303, 309
(4th Cir. 2005). Because the Government failed to rebut that
presumption, the post-Miranda statements are
officers, including Homeland Security Investigations Special
Agent Ubaldo Rios (“Agent Rios”), arrested
Defendant on January 25, 2017, and transported him to the
Huntersville Police Department Headquarters. The officers met
with Defendant in an interview room. Initially, they spoke to
the Defendant about the nature of his charge and about
biographical information [Government's English
Translation of the Interview Transcript (“Tr.”),
1-3]. Before giving defendant any Miranda warnings, the
agents asked Defendant approximately fifteen substantive
questions, including “How did you get to
Wal-Mart?” (Id. at 4); “You ever been
arrested in North Carolina?” (Id. at 9);
“You are in debt?” (Id. at 12);
“The guy from the Hyundai, where did he come from?
Where does he live?” (Id. at 12). During this
discourse, at least three times the agents said a
Miranda warning was necessary. (Id. at 6,
9, 16). Yet, it was twenty-five minutes into the conversation
before Agent Rios provided such a warning. (Id. at
17). Defendant responded with “Ay, ” “Yes,
” and nodded his head. (Id. at 17-18). He did
not sign a formal waiver of his Miranda rights but
continued to speak with the agents. Post-Miranda,
the agents questioned Defendant about his debt, (Id.
at 29-30), inquired about the specific location of a
“store” involved in drug trafficking,
(Id. at 29), and discussed the ramifications of
Defendant's cooperation, (Id. at 18-20).
Supreme Court noted in Missouri v. Siebert that
“Miranda addressed ‘interrogation
practices … likely … to disable [an individual]
from making a free and rational choice' about
speaking.” 542 U.S. 600, 601 (2004) (quoting
Miranda, 384 U.S. at 464-65). When the reading of
Miranda is delayed, the admissibility analysis
hinges on whether the delay is deliberate. Mashburn,
406 F.3d at 309. When the delay is deliberate, courts in the
Fourth Circuit follow the Siebert presumptive
The admissibility of post-warning statements is governed by
Elstad unless the deliberate
“question-first” strategy is employed. If that
strategy is deliberately employed, post-warning statements
related to the substance of pre-warning statements must be
excluded unless curative measures are taken before the
post-warning statements are made.
Mashburn, 406 F.3d at 309 (quoting Missouri v.
Seibert, 542 U.S. 600, 621 (2004)). In his concurring
opinion in Seibert, Justice Kennedy determined that
a post-Miranda statement is admissible if curative
measures are taken even when deliberate delay is present.
Id. Without curative measures, the post-warning
statements are inadmissible. Id. On the other hand,
when the delay is merely coincidental or accidental, courts
apply the Elstad framework: “a simple failure
to administer the warnings, unaccompanied by any actual
coercion or other circumstances calculated to undermine the
suspect's ability to exercise his free will, ” does
not render a post-Miranda statement inadmissible.
Oregon v. Elstad, 470 U.S. 298, 309 (1985).
“question-first” tactic occurs when law
enforcement uses pre-warning answers to inform, guide, and
hone post-warning questioning. Siebert 542 U.S. at
600. The Supreme Court has found that the question-first
technique, designed “to render Miranda
warnings ineffective by waiting for a particularly opportune
time to give them, after the suspect had already confessed,
” (Id. at 611), “effectively threatens
to thwart Miranda's purpose of reducing the risk
that a coerced confession would be admitted.”
Id. at 617.
determine the nature of the delay, the Court explained,
“[T]he focus is on facts apart from intent that show
the question-first tactic at work.” Siebert
542 U.S. at 616, n.6. Setting aside an analysis of the
officer's subjective intent and focusing on the objective
facts, the Siebert plurality set forth five factors
to determine whether ...