Petition for Writ of Certiorari — Ethan Guillen, Petitioner v. United States

NO.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2021

ETHAN GUILLEN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

FEDERAL PUBLIC DEFENDER

Margaret A. Katze

Melissa Ayn Morris

Counsel of Record

Carol H. Marion

111 Lomas NW, Suite 501

Albuquerque, NM 87102

(505) 346-2489

melissa_morris@fd.org

QUESTION PRESENTED FOR REVIEW

The courts of appeals and the state courts are deeply divided over how to

determine the admissibility of confessions made during “question-first”

interrogations, where officers question a suspect without giving Miranda warnings

and elicit a confession, then provide the warnings and press the suspect to repeat

the confession. In Missouri v. Seibert, 542 U.S. 600 (2004), the four-justice plurality

formulated a five-factor test focused on the impact of the question-first procedure on

the defendant. Justice Kennedy, who concurred only in the judgment, propounded a

test that turned on whether officers deliberately undermined Miranda’s purpose by

delaying warnings until after a confession. The question presented is:

In determining the admissibility of post-warning confessions given during

question-first interrogations, should courts apply the Seibert plurality’s objective

test focused on the effectiveness of the warnings provided to the suspect or Justice

Kennedy’s subjective test based on officer intent?

RELATED PROCEEDINGS

1. United States v. Guillen, United States Court of Appeals for the Tenth

Circuit, No. 20-2004.

2. United States v. Guillen, United States District Court for the District of New

Mexico, No. 17-CR-1723-WJ.

ii

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO PROCEED IN FORMA

PAUPERIS ........ Preceding and Attached to Petition Pursuant to S.Ct. R. 39.2

QUESTION PRESENTED FOR REVIEW ........... 0c cece cece eee eens 1

RELATED PROCEEDINGS ......... 0... ccc cc eee eee etree tees li

TABLE OF CONTENTS .....0.... 0. cece eee eee eee nen ili

TABLE OF AUTHORITIES ........... cee cece ee eee eens v1

OPINIONS AND ORDERS BELOW ............... cece eee eee eees 1

JURISDICTION 0.0... ccc ec ee ee eee eee eee teen eens 2

CONSTITUTIONAL PROVISION AT ISSUE ......... 0... cece eee eee 2

INTRODUCTION ......... 2. ccc cee eee eee teen een enees 3

STATEMENT OF THE CASE ......... 0... cece eee eee eee 5

A. Factual Background. ....... 0.0... eee eee eee eee ee tenes 5

B. District Court Proceedings. .........- 0 eee eee eee eee eee eens 6

C. The Court of Appeals’ Ruling. 2... 0... cc ee eee eee eens 7

REASONS FOR GRANTING THE WRIT ......... 0... e cc eee ee ees 8

This Court Should Grant Certiorari to Resolve the Fundamental

Conflict between Circuits and States concerning how Courts Should

Determine the Admissibility of a Warned Confession given during a

Question-First Interrogation. .......... 6.0 e ee eee eens 8

I. Federal and State Courts are Deeply Divided over whether the

Seibert Plurality Opinion or Justice Kennedy’s Concurrence Governs

Question-First Interrogations. ......... 0... c eee eee teense 8

iil

A. Eight courts of appeals apply Justice Kennedy’s test as the governing

TUE, 2. ec ee ee ee ee ee eee eee eee ee tenet ee eee eee ees 10

B. In conflict with the above circuits, the Sixth Circuit has adopted the plurality

tOSt. co ccc ce ee ee ee eee ee eee eee eee eee ee ee ee eet teen ees 11

C. Three circuits have expressed skepticism about whether Seibert established a

controlling rule, but have not definitively decided. .............-+505- 12

D. State courts, like the federal circuits, are split on the controlling Sezbert

1) rr rc 13

E. The federal circuit courts and state courts are further divided over how the

Marks rule governs analysis of the fractured opinions in Sezbert......... 13

Il. This Case Presents a Fundamental and Recurring Constitutional

ISSUC. 2. ee ec ce ee ee ee ee eee eee ee eee eee eee ee ee nees 16

A. Rules of interrogation and criminal convictions should not turn on

BEORTAPHY. 0... eee ee eee ee eee ee eee teen eee 16

B. The issue presented by this case arises frequently. ..........----+-+- 17

C. Persistence of the circuit split on how to apply Seibert will adversely affect

federal and state law enforcement, as well as defendants. ............. 17

D. Only this Court can resolve the split between circuits and states on proper

application of Seibert. 0.1... eee eee een ene 18

E. Uniform rules should apply to lower courts’ application of plurality

GECISIONS. «0. cc eee tt ee ee eee eee eet eee e eens 18

Ill. This Case is an Ideal Vehicle for Resolving the Split between Circuits

and States because the Choice of Test Determined the Outcome and the

Facts are Cleanly Presented. ........ 0... ce eee eee eee cette eens 19

A. The result of this case would have been different under the plurality test. 19

B. The undisputed facts present an ideal vehicle for addressing which test

applies under Seibert. 0.0.0... ccc ce cee teen e ene n eens 20

C. Grant of this petition will afford the Court a sorely needed vehicle to clarify

Seibert without procedural impediments. ......... 0. cece eee eee neers 21

iv

IV. The Tenth Circuit Decision is Wrong because it is based on the

Surmise about Officers’ Motives that Leads to Inconsistent Outcomes.

CONCLUSION .... 0... ccc te een eee tenner e nena

APPENDIX A APRIL 27, 2021, TENTH CIRCUIT DECISION ........

APPENDIX B MAY 3, 2018, DISTRICT COURT MEMORANDUM

OPINION AND ORDER GRANTING IN PART AND

DENYING IN PART DEFENDANT’S MOTION TO

SUPPRESS EVIDENCE AND STATEMENTS ........

TABLE OF AUTHORITIES

Cases Page

Apodaca v. Oregon,

406 U.S. 404 (1972)(plurality opinion) ....... 0... eee eee ee eee 15-16

Bobby v. Dixon,

565 U.S. 23 (2011)(per curiam) .. 1.1... ee eee ee tenn ennes 10

Dickerson v. United States,

530 U.S. 428 (2000) 6... eee eee ee ee tenet tenn n ees 24

Edwards v. United States,

923 A.2d 840 (D.C. Ct.App. 2007) 0... eee cee eee en eee eens 15

Fare v. Michael C.,

442 U.S. 707 (1979) .......... eee ee eee eee ee eee eee eee eee eee eee eeees 18

Gregg vu. Georgia,

AQ8 U.S. 153 (1976) 0. ec ee ee eee eee e ene e ners enes 13

Grutter v. Bollinger,

539 U.S. 306 (2008) 6... cc eee eee tee ene een n ene 14

Horton v. California,

A9G U.S. 128 (1990) .. 6. cee ee ee eee ett e eee e eee es 10

Hughes v. United States,

__ USS. __, 188 S.Ct. 1765 (2018) 2... eee eee tet teenies 13

Kelly v. State,

997 N.E.2d 1045 Und. 2018) 0.0... ccc eee ee een een ene eees 13

Kentucky v. King,

563 U.S. 452 (2011)... ce eee ee ete e nnn teen ees 10, 22

King v. Palmer,

950 F.2d 771 (D.C. Cir.1991)(en banc) ..... eee ee eee ee eee nee 14, 16

Marks v. United States,

430 U.S. 188 (1977) 20. ce ee eee erent ee tenes 4, 7, 12-15, 18

vi

Miranda v. Arizona,

384 U.S. 486 (1966) 20. ee eee eee eee tenes passim

Missouri v. Serbert,

542 U.S. 600 (2004) 2. cc ccc eee eee eee eee ene tenes passim

Nichols v. United States,

511 U.S. 738 (1994) 2... eee eee tere eee eee nett eees 14

People v. Griffin,

898 N.E.2d 704 (Ill. 2008) 2... ec ete eee eee eens 13

Planned Parenthood of Indiana and Kentucky, Inc. v. Box,

991 F.3d 740 (7* Cir.),

cert. petition filed (8/29/21) 0.6... ccc ee eee ene eee n eens 14

Ramos v. Louisiana,

__ US. __, 140 S.Ct. 1890 (2020) 2.0... ene eee ees 15-16

Reyes v. Lewis,

833 F.3d 1001 (9 Cir. 2016) 0. ccc ccc cece tte teen nnn nenes 14

Ross v. State,

45 So.8d 403 (Fla. 2010) 2... cece eee eee tte eeeen nes 13

State v. Abbott,

812 S.E.2d 225 (Ga. 2018)... 6. ce ee ee eee eee eens 13

State v. Collings,

450 S.W. 3d 741 (Mo. 2014) 0... cc eee eee tne een nnees 13

State v. Farris,

849 N.E.2d 985 (Ohio 2006) ...... 0... eee eee ete e tenes 13, 17

State v. Juranek,

844 N.W.2d 791 (Neb. 2014) 2... ce eee eee eee eee nn nnees 13

State v. Navy,

688 S.E.2d 838 (S.C. 2010) 2... ee ee eee tenet e tenes 13, 17

State v. Wass,

396 P.3d 1243 ddaho 2017) ....... eee ee ee ee eens 13, 20-21

Vil

Torres v. Madrid,

__ US. __, 141 S.Ct. 989 (2021) 2. eee eee nines 10

United States v. Alcan Aluminum,

315 F.3d 179 (2" Cir. 2003) 0... cece ce eee eet e nee e eens 14

United States v. Briones,

390 F.3d 610 (8 Cir. 2004) 2... ccc cece eee tenn e eee ees 14

United States v. Capers,

627 F.3d 470 (2 Cir. 2010) 20... ccc ce teen ene 10, 18, 22-23

United States v. Carrizales-Toledo,

ADA F.3d 1142 (10% Cir. 2006)... 0.6 cece eee teen eee ees 19

United States v. Courtney,

463 F.3d 333 (5 Cir. 2006) 1.0... cece eee eee eee ene e eens 11

United States v. Crisp,

371 F. App’x 925 (10 Cir. 2010)(unpublished) .......... 00. eee ees 19

United States v. Faust,

853 F.3d 39 (1% Cir. 2017 2... cc eee eee e enn eens 12

United States v. Heron, |

564 F.3d 879 (7 Cir. 2009) 2... cece cc eee ene eee en nnees 12, 15

United States v. Kiam,

432 F.3d B24 (3% Cir. 2006 oo... ccc cece cece teen e tenn eee nee 14

United States v. Leon, |

AGB U.S. 897 (1984) 0. cee ee eee eee eee teen nett eens 10

United States v. Mashburn,

406 F.3d 303 (4'* Cir. 2005) 20... 0. cece eee eee eee e ees 11

United States v. Moore,

670 F.3d 222 (2 Cir. 2012) 22... ccc ee nett teen eee ees 22

United States v. Naranjo,

223 Fed.App'x. 167 (3 Cir. 2007)(unpublished) .......--....es eee eres 23

Vili

United States v. Naranjo,

A26 F.3d 221 (3° Cir. 2005) oe ccc eee nen ence nee ee nees 11

United States v. Ollie,

442 F.3d 1135 (8 Cir. 2006) 2.0.6... eect nents 11

United States v. Ray,

803 F.3d 244 (6 Cir. 2015)... eee een ene 11-12, 15, 18

United States v. Rodriguez-Preciado,

399 F.3d 1118 (9 Cir. 2005)... ec cen eene een eees 12, 15

United States v. Sanchez-Gallegos,

412 F.App’x 58 (10 Cir. 2011)(unpublished) ........... 0. cece eee eee 16

United States v. Straker,

800 F.8d 570 (D.C. Cir. 2015) 2... cc ee eee tenes 12

United States v. Street,

A72 F.3d 1298 (11 Cir. 2006) 2... ec cece eee cence ne enes 11

United States v. Torres-Lona,

491 F.3d 750 (8 Cir. 2007) 0. ccc ccc eee eee cnet ene e nen enes 14

United States v. Williams,

435 F.3d 1148 (9 Cir. 2006) 00... ccc cee eee eee ene eees 11, 14

Wass v. Idaho,

138 S.Ct. 2706 (2018) 1... eee ee teen ne eee ne eens 20

Whren v. United States,

517 U.S. 806 (1996) 2... eee ee eee eee tee tenet ene eenes 10

Constitutional Provisions

U.S. Const., Amend. IV 2... ccc ee cent teen eee eees 10

U.S. Const., Amend V ... 6. ce ee ee ee eee ees 2, 4, 9, 16-17, 21, 23

ix

Statutes

18 U.S.C. § 844 2 ocr eee eee eee eee een nee e eens 6

26 U.S.C. § F861 oe eee eee een tenn een e ene 6

28 U.S.C. § 1254 2... ccc ccc cee eee ee eee eee teen eee eee e ene 2

2B U.S.C. § 1291... ccc cc ee ee ee eee eee tener n eens 2

Other Authorities

Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to

Miranda v. Arizona), 99 Geo.L.J. 1 (2010) 0... ee eee een ee 16-17

Joshua I Rodriguez, Interrogation First, Miranda Warnings Afterward: A Critical

Analysis of the Supreme Court’s Approach to Delayed Miranda Warnings, 40

Fordham Urb.L.J. 1091 (2013) 0... ee eet eee ees 17

Lee S. Brett, “No Earlier Confession to Repeat”: Seibert, Dixon, and Question-First

Interrogations, 78 Wash. & Lee L.Rev. 451 (2021) 12.6... cece eee eee eee 13

Petition for Writ of Certiorari, Ohio v. Farris, No. 06-464 (U.S. Oct. 2, 2006), 2006

WL 2826269 .. cc ce cc ee eee eee eee ee eee e ee ene e ees 17

Petition for Writ of Certiorari, South Carolina v. Navy, No. 09-1459 (U.S. May 27,

2010), 2010 WL 2214870 2... ee ee tenet tenet e rte 17

Richard Re, Beyond the Marks Rule, 132 Harv.L.Rev. 1943 (2019) ..........-. 14

Ryan C. Williams, Questioning Marks: Plurality Decisions and Precedential

Constraint, 69 Stan.L.Rev. 795 (2017) 0.6... ccc eee eee renee ees 18-19

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2021

ETHAN GUILLEN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

Petitioner Ethan Guillen respectfully petitions the Court for a writ of

certiorari to review the judgment of the United States Court of Appeals for the

Tenth Circuit in his case.

OPINIONS AND ORDERS BELOW

1. The published opinion of the United States Court of Appeals for the Tenth

Circuit in United States v. Guillen, 10th Cir. No. 20-2004, dated April 27, 2021, is

reported at 995 F.3d 1095 (10 Cir. 2021), and attached as Pet.App. A.

2. The unpublished order of the United States District Court for the District of

New Mexico Memorandum Opinion and Order Granting in Part and Denying in

Part Defendant’s Motion to Suppress Evidence and Statements in United States v.

Guillen No. 17-CR-1723-WJ, dated May 3, 2018, is available at 2018 WL 2075457,

and attached as Pet.App. B.

JURISDICTION

Petitioner Ethan Guillen (hereafter “Ethan”) appealed from the district

court’s denial of his motion to suppress. The United States Court of Appeals for the

Tenth Circuit had jurisdiction under 28 U.S.C. § 1291. Its decision affirming the

district court judgment was issued April 27, 2021. This Court has jurisdiction under

28 U.S.C. §1254(1). Pursuant to this Court’s Order of July 19, 2021, the deadline for

filing a petition for a writ of certiorari in cases in which the relevant lower court

judgment was issued prior to that date is 150 days from the date of that judgment.

Accordingly, this petition is timely filed.

CONSTITUTIONAL PROVISION AT ISSUE

The Fifth Amendment of the United States Constitution provides, in

pertinent part:

“No person ... shall be compelled in any criminal case to be a witness against

?

himself, nor be deprived of life, liberty, or property, without due process oflaw...’

INTRODUCTION

This case presents a particularly compelling example of the critical need for this

Court to re-examine the admissibility of a post-Miranda confession that closely follows

an unwarned confession elicited during a “question-first” interrogation. After 18-yearold Ethan consistently denied his guilt during fifty minutes of questioning, two agents

paused their interrogation and conferred on a plan to induce his confession. They

resumed questioning without advising him of his Miranda rights and, in one agent’s

words, “pushed him” to confess by confronting him with the evidence against him and

their belief he was guilty. Ethan immediately confessed. The agent explained that “at

that point, I advised him of the Miranda rights, and then just continued on with the

interview.” The agents did not inform Ethan that if he invoked his rights, his initial

confession would not be admissible. He repeated his confession and supplied

incriminating details. The court of appeals upheld the district court’s denial of his

motion to suppress his post-Miranda confession.

As the four-member plurality explained in Missouri v. Seibert, 542 U.S. 600

(2004), the delay of Miranda warnings until after a suspect confesses undermines their

purpose because it renders them “ineffective in preparing the suspect for successive

interrogation, close in time and similar in content.” Id. at 613. Unlike most such cases,

this case involved a continuous interrogation session interrupted only momentarily to

read the Miranda warnings. There was no change of interrogators or location and no

need for the agents to remind Ethan post-Miranda of the unwarned confession he had

just made.

Under the Seibert plurality opinion, the admissibility of a post-warning

confession turns on a five-factor test focused on “whether a reasonable person in the

suspect's shoes” would have understood the delayed Miranda warnings “to convey a

message that she retained a choice about continuing to talk.” Jd. at 617. Justice

Kennedy, concurring only in the judgment, set forth a test based on whether the

officers had a “deliberate two-step strategy.” Id. at 622. Both the plurality and the four

dissenting justices expressly disagreed that the test should turn on officer intent.

Federal and state courts are divided over which Seibert test controls. Eight

courts of appeals apply Justice Kennedy’s test; the Sixth Circuit has adopted the

plurality test; the First, Seventh, and D.C. Circuits have expressed uncertainty about

the controlling test without ruling definitively. While the district court applied the

Seibert plurality test in this case, the court of appeals concluded after analyzing the

circuit split that Justice Kennedy’s test controlled under Marks v. United States, 430

U.S. 188 (1977).

The Court’s grant of certiorari is necessary to address a fundamental

constitutional issue that has divided federal and state courts since Seibert was decided.

This case presents unusually straightforward facts that plainly show the Miranda

warnings—given during a continuous interrogation session immediately after officers

induced Ethan’s confession—could not have effectively informed him of his Fifth

Amendment rights. The outcome of his appeal was determined by the court of appeals’

decision to apply the deliberate intent test endorsed only by Justice Kennedy. This

Court should grant certiorari to resolve the lower courts’ persistent confusion about a

4

critical question that has produced variable suppression outcomes and left law

enforcement officers uncertain of the standards that apply to interrogation of suspects.

STATEMENT OF THE CASE

A. Factual Background.

Six law enforcement officers went to Ethan’s home to question him about an

unexploded pressure cooker bomb found under the bed of his former girlfriend. Ethan

had just turned eighteen years old and was still in high school. Two highly experienced

agents questioned him at the kitchen table while the other officers searched his home.

Vol. III of the record on appeal, pages 706, 729, 904-06, 912. During the interrogation,

five or six bomb squad officers joined the officers performing the search with two K-9s

and other police personnel. Id. at 749, 793. They uncovered considerable physical

evidence implicating Ethan.

During the initial fifty minutes of questioning, Ethan denied involvement. Id.

at 843-44. The interrogating agents then paused to take stock of the amassed evidence

and confer on a plan to elicit his confession by confronting him with the incriminating

evidence and their belief he was guilty. Id. at 820, 844. Ethan confessed as they had

planned without the benefit of Miranda advice. Id. at 844-45. As soon as he did, the

agents read the Miranda warnings, then picked up their questioning where they had

left off. Id. at 764. They did not secure a written Miranda waiver and did not tell Ethan

his unwarned confession would not be admissible if he declined to talk further. He

reiterated his confession and described how he had built the bomb. Jd. at 856.

B. District Court Proceedings.

Ethan was charged with one count of possession of an unregistered destructive

device, in violation of 26 U.S.C. § 5861(d), and one count of malicious attempt to

destroy by fire or explosive a building used in interstate commerce or in any activity

affecting interstate commerce, in violation of 18 U.S.C. § 844(i). He moved to suppress

his pre- and post-Miranda confessions, arguing, inter alia, that the circumstances of

the interrogation and delayed Miranda warnings were analogous to those in Seibert

and that the court should apply the Seibert plurality test and determine that the

warnings were ineffective to apprise him of his rights. Pet.App. B at 34.

The district court determined that Ethan was subjected to custodial

interrogation when the agents elicited his initial confession without providing Miranda

warnings. Id. at 29-30. They “continued to press [Ethan] despite his repeated denials,

and then confronted him with the information and evidence that had been collected

during the search. The purpose of the questioning at that point was to elicit

incriminating responses—not simply to obtain information.” Jd. at 30. The court

suppressed Ethan’s initial confession, but ruled that his post-Miranda confession was

admissible under the Seibert plurality’s five-factor test. Id. at 34-36.

Ethan entered into a conditional plea agreement that reserved his right to

appeal the district court’s denial of his suppression motion. He was sentenced to

concurrent terms of imprisonment of 120 and 150 months.

C. The Court of Appeals’ Ruling.

Ethan argued on appeal that his post-Miranda confession was inadmissible

under both the Seibert plurality five-factor test and Justice Kennedy’s test. Appellant’s

Brief at 29-39, 45-51. He pointed out that the unwarned and warned confessions were

made during a continuous interrogation session punctuated only by a brief pause to

read Miranda warnings. Id. at 37. The agents conducted a skilled interrogation,

working as a team to confront him with details, challenge his denials, and pressure

him to admit his guilt. Id. at 34. The overlapping content of the pre-warning and postwarning interrogation was shown by one agent’s testimony that after giving Miranda

warnings, they picked right up where they had left off. Id. at 35.

The agents did not record either of Ethan’s confessions or the twenty to thirty

minutes of interrogation that followed them. Volume III of the record on appeal at 858,

867. By the time they resumed recording, he had already told “his whole story.” Id. at

1006. Neither the agents nor the interrogation environment changed. Appellant’s Brief

at 36. Ethan argued that because the agents did not advise him that his initial

confession would not be used against him if he invoked his rights, he reasonably would

not have understood that he had “a real choice” about whether to continue to talk. Id.

at 37 (quoting Seibert, 542 U.S. at 612).

The court of appeals examined the circuit split on the governing opinion in

Seibert, Pet.App. A at 35-37, in light of Marks and adopted Justice Kennedy’s opinion.

Id. at 30-31. It concluded that “the agents did not engage in a deliberate two-step

interrogation strategy to frustrate Miranda.” Id. at 49.

7

REASONS FOR GRANTING THE WRIT

This Court Should Grant Certiorari to Resolve the Fundamental

Conflict between Circuits and States concerning how Courts Should

Determine the Admissibility of a Warned Confession given during a Question-

First Interrogation.

Since shortly after Seibert was decided, federal and state courts have been

divided over its application, leading to disparate results in cases with analogous facts.

This case presents a vitally important constitutional issue that this Court must decide.

I. Federal and State Courts are Deeply Divided over whether the Seibert

Plurality Opinion or Justice Kennedy’s Concurrence Governs Question-First

Interrogations.

In Miranda v. Arizona, 384 U.S. 436 (1966), this Court prohibited the State’s use

of statements elicited during custodial interrogation absent “the use of procedural

safeguards effective to secure the privilege against self-incrimination.” Id. at 444,

Justice Souter, writing for a four-member plurality in Seibert, explained that

interrogators undermine Miranda’s purpose by delaying warnings while pressing for

confessions that suspects would not make if they understood their rights at the outset.

Id. at 613. A suspect given Miranda advice shortly after making a confession “would

hardly think he had a genuine right to remain silent, let alone persist in so believing

once the police began to lead him over the same ground again.” Jd. Courts should

examine the warnings’ effectiveness in light of five factors: (1) the completeness and

detail of the questions and answers during the unwarned interrogation phase; (2) the

overlapping content of the two statements; (3) the timing and setting of the first and

second rounds; (4) the continuity of police personnel; and (5) the degree to which the

interrogator’s questions treated the first and second rounds as continuous. Id. at 615.

The plurality also weighed whether the officers specifically explained to the suspect

that her pre-Miranda confession would not be used against her if she invoked her Fifth

Amendment rights. Id. at 616 n.7.

Concurring only in the judgment, Justice Kennedy espoused what he

characterized as “a narrower test.” Id. at 622. Post-warning confessions would be

inadmissible if officers deliberately used the two-step interrogation to undermine

Miranda unless they took “curative measures” before the post-warning confession such

as (1) allowing a lapse of time and change of circumstances between the pre-warning

statement and the Miranda warnings that would enable the accused to distinguish

between the two contexts and appreciate that the interrogation has taken a new turn;

and (2) providing an explanation of “the likely inadmissibility of the prewarning

custodial statement[.]” Id.

At least seven justices disagreed that admissibility of post-warning confessions

should turn on officers’ intent. According to the four-justice plurality, the test must

focus “on facts apart from intent that show the question-first tactic at work” because

officers will rarely admit to deliberate intent to delay Miranda warnings. Id. at 616

n.6. The dissent explained that the effect of interrogation on a suspect is unrelated to

officers’ subjective intent, id. at 625 (O'Connor, J., joined by Rehnquist, C.J., and Scalia

and Thomas, JJ., dissenting), and that “focusing constitutional analysis on a police

officer’s subjective intent [is] an unattractive proposition that we all but uniformly

avoid.” Id. at 626 (citing United States v. Leon, 468 U.S. 897, 922, n. 23 (1984))."

In a separate concurrence, Justice Breyer “join[ed] the plurality’s opinion in

full,” id. at 618, and concluded that “[c]ourts should exclude the ‘fruits’ of the initial

unwarned questioning unless the failure to warn was in good faith.” Id. at 617.

In Bobby v. Dixon, 565 U.S. 28 (2011)(per curiam), this Court discussed the

Seibert tests without addressing which is controlling. Id. at 31. Dixon had maintained

his innocence during an unwarned interrogation, id., and the case did not involve the

blending of unwarned and warned interrogations into a single “continuum,” the factor

that had raised concern in Seibert about whether the Miranda warnings effectively

informed the suspect that she retained “a real choice about giving an admissible

statement.” Id. at 31-32.

A. Eight courts of appeals apply Justice Kennedy’s test as the governing rule.

As the court of appeals noted, Pet.App. A at 35, seven other federal circuits,

including the Second, Third, Fourth, Fifth, Eighth, Ninth, and Eleventh, have held

Justice Kennedy’s opinion controlling. Pet.App. A at 35. It cited United States v.

Capers, 627 F.3d 470, 476 (2™ Cir. 2010)(“this Court joined the Eleventh, Fifth, Ninth,

' Numerous cases bear out that contention, including Torres v. Madrid, __ U.S. _, 1418.Ct.

989, 998 (2021)(“we rarely probe the subjective motivations of police officers in the Fourth Amendment

context.”); Kentucky v. King, 563 U.S. 452, 464 (2011)(‘this Court has long taken the view that

“evenhanded law enforcement is best achieved by the application of objective standards ofconduct, rather

than standards that depend upon the subjective state of mind of the officer.”)(quoting Horton v.

California, 496 U.S. 128, 138 (1990)); and Whren v. United States, 517 U.S. 806, 813 (1996)(“we have

been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual

officers”).

10

Third, and Eighth Circuits in applying Justice Kennedy’s approach in Seibert”); United

States v. Naranjo, 426 F.3d 221, 231-32 (8 Cir. 2005)(“Justice Kennedy’s opinion

provides the narrowest rationale for resolving the issues raised by two-step

interrogations[.]”); United States v. Mashburn, 406 F.3d 308, 309 (4 Cir. 2005)

(Justice Kennedy’s opinion “represents the holding of the Seibert Court[.]”); United

States v. Courtney, 463 F.3d 333, 338 (5" Cir. 2006)(“[W]e find Seibert’s holding in

Justice Kennedy’s opinion concurring in the judgment.”); United States v. Ollie, 442

F.3d 1135, 1142 (8 Cir. 2006)(Justice Kennedy’s concurring opinion provides the

Court’s holding and requires suppression where officers intentionally use a two-step

interrogation technique “to render Miranda warnings ineffective” unless they take

sufficient “curative measures”); United States v. Williams, 435 F.3d 1148, 1158 (9 Cir.

2006)(Justice Kennedy’s “narrower test-that excludes confessions made after a

deliberate, objectively ineffective mid-stream warning—represents Seibert’s holding.”);

United States v. Street, 472 F.3d 1298, 1313 (11™ Cir. 2006)(“Because Seibert is a

plurality decision and Justice Kennedy concurred in the result on the narrowest

grounds, it is his concurring opinion that provides the controlling law.”).

B. In conflict with the above circuits, the Sixth Circuit has adopted the plurality

test.

The Sixth Circuit disagreed with the above circuits’ rulings that Justice

Kennedy’s subjective intent test controls and “conclude[d] that Seibert did not

announce a binding rule of law with respect to the admissibility standard for

statements given subsequent to midstream Miranda warnings.” United States v. Ray,

1]

803 F.3d 244, 272 (6" Cir. 2015). It agreed with Judge Berzon’s dissent in United

States v. Rodriguez-Preciado, 399 F.3d 1118 (9 Cir. 2005), that “Justice Kennedy’s

opinion is not the narrowest opinion embodying a position supported by at least five

Justices in the majority” because “two Justices, at most” adopted Justice Kennedy’s

position. Id. at 271 (emphasis in original)(quoting Rodriguez-Preciado, 399 F.3d at

1138-40 (Berzon, J., dissenting)). The Sixth Circuit decided that the plurality approach

was superior to Justice Kennedy’s and adopted the Seibert plurality’s multi-factor test

“as controlling precedent in this Circuit.” Id. at 272.

C. Three circuits have expressed skepticism about whether Seibert established a

controlling rule, but have not definitively decided.

The First, Seventh, and D.C. Circuits have questioned whether Justice

Kennedy’s test is controlling, but have not definitively settled the issue. See United

States v. Heron, 564 F.3d 879, 884-85 (7 Cir. 2009)(although it concluded “the Marks

rule is not applicable to Seibert’, given that “Justice Kennedy’s intent-based test was

rejected by both the plurality opinion and the dissent”, the court declined “to resolve

once and for all what rule or rules governing two-step interrogations can be distilled

from Seibert.”); United States v. Straker, 800 F.3d 570, 617 (D.C. Cir. 2015)(noting the

circuit divide about the controlling Seibert opinion and the proper application of Marks

and reserving decision on those issues); United States v. Faust, 853 F.3d 39, 48, n.6 (1*

Cir. 2017)(addressing both Seibert tests and explaining “we have not settled on a

definitive reading of Sezbert.”).

12

D. State courts, like the federal circuits, are split on the controlling Sezbert test.

State courts are also divided on how to apply Seibert. Cases applying the

plurality multi-factor test include State v. Juranek, 844 N.W.2d 791, 803-04 (Neb.

2014); Kelly v. State, 997 N.E.2d 1045, 1054-55 (Ind. 2013); State v. Farris, 849 N.E.2d

985, 994 (Ohio 2006); and State v. Navy, 688 S.E.2d 838, 842 (S.C. 2010). State courts

applied Justice Kennedy’s test in State v. Wass, 396 P.3d 1243, 1248 (Idaho 2017);

People v. Griffin, 898 N.E.2d 704, 714-15 (Ill. 2008); State v. Collings, 450 S.W. 3d 741,

755 (Mo. 2014); State v. Abbott, 812 S.E.2d 225, 231 (Ga. 2018); and Ross v. State, 45

So.3d 403, 422-23 (Fla. 2010);?

E. The federal circuit courts and state courts are further divided over how the

Marks rule governs analysis of the fractured opinions in Sezbert.

The federal and state courts are also divided on the proper application of Marks

in the Seibert context. In Marks, this Court directed that the holding of a fragmented

decision should “be viewed as that position taken by those Members who concurred in

the judgment on the narrowest grounds.” 430 U.S. at 193 (quoting Gregg v. Georgia,

428 U.S. 153, 169 n.15 (1976)). Although it granted certiorari on questions involving

the application of Marks in Hughes v. United States, __ U.S. __, 188 S.Ct. 1765 (2018),

this Court instead resolved the underlying sentencing issue and expressly declined “to

reach questions regarding the proper application of Marks.” Id. at 1768.

2 Additional state cases addressing this issue are catalogued in Lee S. Brett, “No Earlier

Confession to Repeat”: Seibert, Dixon, and Question-First Interrogations, 78 Wash. & Lee L.Rev. 451, 473-

75 & n.179-82 (2021).

13

The Marks rule has long “baffled and divided” the lower courts and is “more

easily stated than applied.” Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (quoting

Nichols v. United States, 511 U.S. 738, 745-46 (1994)). Courts have concluded that

Marks does not apply “when the reasoning underlying the decisive concurring opinion

fails to fit within a broader logical circle drawn by the other opinions[.]” Planned

Parenthood of Indiana and Kentucky, Inc. v. Box, 991 F.3d 740, 746 (7 Cir.)(citing

King v. Palmer, 950 F.2d 771, 782 (D.C. Cir.1991)(en banc) and United States v. Alcan

Aluminum, 315 F.3d 179, 189 (2™ Cir. 2003)), cert. petition filed (3/29/21).°

A number of courts, like the court of appeals here, Pet.App. A at 40, have

concluded that Marks compels the conclusion that Justice Kennedy’s deliberate intent

test is controlling because it is narrower than the plurality test. See, e.g., United States

v. Kiam, 432 F.3d 524, 532 (8" Cir. 2006)(applying “the Seibert plurality opinion as

narrowed by Justice Kennedy”); United States v. Briones, 390 F.3d 610, 613-14 (8"* Cir.

2004)(characterizing Justice Kennedy’s test as the “narrower test”); Williams, 435 F.3d

at 1158 (“This narrower test—that excludes confessions made after a deliberate,

objectively ineffective mid-stream warning—represents Seibert’s holding.”); United

States v. Torres-Lona, 491 F.3d 750, 758 (8 Cir. 2007)(Justice Kennedy’s concurrence

is controlling because it is “narrower”). See also Reyes v. Lewis, 833 F.3d 1001, 1009 &

n.4 (9"" Cir. 2016)(Callahan, J., dissenting from denial of rehearing en banc)(listing

3 Commentators have criticized the Marks rule as deeply flawed. See, e.g., Richard Re, Beyond

the Marks Rule, 132 Harv.L.Rev. 1943, 1945-46 (2019)(“Instead of asking about the ‘narrowest grounds,’

courts should simply ask whether a single rule of decision has the express support of at least five Justices

... [Marks is] a fundamentally broken test.”).

14

cases in which courts have decided that Marks dictates that Justice Kennedy’s Seibert

test is controlling, but criticizing their analysis as superficial and “results-based”).

Other courts have disagreed that Justice Kennedy’s opinion is narrower than the

plurality opinion and concluded that Marks does not apply to Seibert. See, e.g., Ray,

803 F.3d at 271 (“Justice Kennedy’s opinion is not the narrowest opinion embodying

a position supported by at least five Justices in the majority .. . [i]t embodies a position

supported by two Justices, at most.”)(emphasis in original)(quoting Rodriguez-

Preciado, 399 F.3d at 1138-40 (Berzon, J., dissenting)); Heron, 564 F.3d at 884-85

(“Although Justice Kennedy provided the crucial fifth vote for the majority, we find it

a strain at best to view his concurrence taken as a whole as the narrowest ground on

which a majority of the Court could agree. .. . at least seven members of the Court

rejected an intent-based approach ....”); Edwards v. United States, 923 A.2d 840, 848

n.10 (D.C. Ct.App. 2007)(Justice Kennedy’s test is both broader and narrower than the

plurality test-narrower in that it would apply only to deliberate use of a two-step

procedure, but within that subset of cases, the test is broader “in that it would not

allow admission of a suspect’s statements unless curative steps were taken even ifa

court determined that the Miranda warnings could function effectively.”).

In a recent fractured decision, this Court questioned the appropriateness of

enforcing as the Court’s holding the opinion of one justice that was rejected by other

justices. In Ramos v. Louisiana, __ U.S. _, 140 8.Ct. 1390 (2020), Justice Gorsuch,

writing some sections of his opinion for a majority and others for a plurality, concluded

that Marks did not identify the narrowest opinion in the split decision in Apodaca v.

15

Oregon, 406 U.S. 404 (1972)(plurality opinion), that upheld the constitutionality of

nonunanimous verdicts. Jd. at 1403. He characterized it as “a new and dubious” notion

“that a single Justice writing only for himself has the authority to bind this Court to

propositions it has already rejected.” Id. at 1402. This Court overruled Apodaca in

Ramos and ruled that unanimous verdicts are constitutionally required in trials for

serious offenses. See also King v. Palmer, 950 F.2d at 782 (“When eight of nine Justices

do not subscribe to a given approach to a legal question, it surely cannot be proper to

endow that approach with controlling force, no matter how persuasive it may be.”).

Il. This Case Presents a Fundamental and Recurring Constitutional Issue.

A. Rules of interrogation and criminal convictions should not turn on geography.

Defendants’ Fifth Amendment rights should be uniformly enforced. In cases in

which the defendant reasonably would not have understood he retained an effective

right to refuse to incriminate himself after an unwarned confession, yet the evidence

did not show officers’ deliberate intent to subvert Miranda, the results will many times

be different under the plurality test than under Justice Kennedy’s test.’ “[T]here is a

nontrivial subset of cases in which the outcome rests on determining which test is the

law ....in cases in which the police were not acting in bad faith—as the applying court

understands the concept—yet the suspect was confused nonetheless about the freedom

to stay mum after the Miranda warnings finally were delivered, the suspect will win

2 oF

under Justice Souter’s test and lose under Justice Kennedy’s.” Barry Friedman, The

4 See, e8., United States v. Sanchez-Gallegos, 412 F.App’x 58, 73 n.2 (10° Cir.

2011)(unpublished)(Ebel, J., concurring)(acknowledging that the outcome may have been different under

the plurality test than under Justice Kennedy’s test).

16

Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99

Geo.L.J. 1, 48 (2010)(isting cases). See also Joshua I Rodriguez, Interrogation First,

Miranda Warnings Afterward: A Critical Analysis of the Supreme Court’s Approach to

Delayed Miranda Warnings, 40 Fordham Urb.L.J. 1091, 1110 (2013)(“Significantly,

circuit cases have demonstrated that the choice between the plurality and Justice

Kennedy’s approach can yield opposite results.” (listing cases)).

B. The issue presented by this case arises frequently.

The considerable number of federal and state cases parsing the Seibert opinions

and their proper application attests to the persistence of question-first interrogations

and the substantial number of defendants impacted by this issue.

C. Persistence of the circuit split on how to apply Seibert will adversely affect

federal and state law enforcement, as well as defendants.

Two state attorneys general have sought and been denied certiorari on the

question presented. Unless this Court intervenes, law enforcement will continue to be

hampered by inability to ascertain the standard that will determine the lawfulness of

officers’ conduct, prosecutors will have difficulty in determining the admissibility of

confessions, and courts will struggle to decide whether defendants’ Fifth Amendment

rights have been violated. Since Justice Kennedy highlighted the significance of

“Miranda’s clarity” in his Seibert concurrence, 542 U.S. at 622, confusion about

enforcement of Miranda rights has only grown. This Court underscored the import of

5 See Petitions for Writ of Certiorari in Ohio v. Farris, No. 060464 (U.S. Oct. 2, 2006), 2006 WL

2826269, and South Carolina v. Navy, No. 09-1459 (U.S. May 27, 2010), 2010 WL 2214870.

17

that clarity more than forty years ago in Fare v. Michael C., 442 US. 707 (1979),

stating that “Miranda’s holding has the virtue of informing police and prosecutors with

specificity as to what they may do in conducting custodial interrogation, and of

informing courts under what circumstances statements obtained during such

interrogation are not admissible.” Id. at 718. This Court should grant certiorari to

ensure uniform enforcement of the crucial rights Miranda protects.

D. Only this Court can resolve the split between circuits and states on proper

application of Seibert.

Despite appreciable efforts and comprehensive analysis of the Seibert opinions

and the circuit split they have produced, the federal circuits and state courts have been

unable to resolve the conflict. See, e.g., Pet.App. A at 35-37; Ray, 803 F.3d at 270;

Capers, 627 F.3d at 476. Only this Court can provide the needed guidance to resolve

the widespread confusion Seibert has generated.

E. Uniform rules should apply to lower courts’ application of plurality decisions.

This Court’s guidance on application of the Marks rule is also critically

important to resolve the difference from one jurisdiction to another in application of

this Court’s fractured decisions. “Some of the most significant and divisive Supreme

Court cases in recent history—involving such issues as abortion, gun control, voting

rights, affirmative action, capital punishment, and the scope of congressional authority

under the Commerce Clause—have been decided by plurality decision.” Ryan C.

Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69

18

Stan.L.Rev. 795, 800 (2017). In both the civil and criminal arenas, this Court’s

clarification of how courts should interpret basic decisional rules is sorely needed.

III. This Case is an Ideal Vehicle for Resolving the Split between Circuits

and States because the Choice of Test Determined the Outcome and the Facts

are Cleanly Presented.

A. The result of this case would have been different under the plurality test.

While the court of appeals did not expressly acknowledge that Ethan’s postwarning confession would have been inadmissible under the plurality test, that

conclusion is apparent from its recognition that this case required it to decide between

the plurality test and Justice Kennedy’s test. See Pet.App. A at 30 (“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.”). The court had not previously decided between the two tests because

it had concluded in prior cases that the defendant’s confession was admissible under

both tests. See, e.g., United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10° Cir.

2006); United States v. Crisp, 371 F. App’x 925, 929 (10 Cir. 2010)(unpublished).

In Carrizales-Toledo, the court emphasized the singular importance of “the

degree to which the interrogator’s questions treated the second round as continuous

with the first.” 454 F.3d at 1152. That factor overwhelmingly supported the

inadmissibility of Ethan’s post-Miranda confession, given the continuous pre-warning

and post-warning interrogations and the agents’ treatment of them asa single session.

The remaining plurality test factors were well-established in this case as well,

particularly the complete overlap in timing, content, setting, and interrogators between

the unwarned and warned confessions.

19

[OCR skipped on page(s) 31-36]

[Read from a scan; the first 30 pages.]