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Ninth Circuit Finds “Two-Step” Interrogation Requires Suppression of Confession in Drug Conviction

The Ninth Circuit Court of Appeals found FBI agents improperly engaged in a “two-step interrogation,” requiring reversal of a drug conviction based upon the confession that was the fruit of that interrogation.

Michael D. Barnes became the subject of an FBI investigation after an informant, George Craig, arranged to obtain methamphetamine from Barnes at the Anchorage, Alaska airport. The 2007 transaction involved having the drugs transported to Esthepen Pebenito, an alleged drug trafficker in Hawaii. A few months later, Barnes was ordered to report to his parole officer.

Upon arrival, he was searched and taken into a room where two FBI agents and his parole officer were present. He denied allegations that he was involved in the Anchorage incident, but when confronted with a tape recording of a telephone call between him and Craig, he admitted his involvement. Miranda rights were read at that point, and he went on to elaborate his relationship with Pebenito, how the two dealt drugs, other transactions, and the detail of the Anchorage transaction.

Two-step interrogations are prohibited by Missouri v. Seibert 542 U.S. 600 (2004). Such an interrogation occurs when an officer deliberately questions the suspect without Miranda warning, obtains a confession or inculpatory statement, offers mid-stream warnings after the suspect has admitted involvement or guilt, and then has the suspect repeat his confession or elaborate his earlier statements.

The Ninth Circuit found Barnes did not appear voluntarily, for he was told to appear by his parole officer under threat of revocation of parole. The entire situation differed from typical parole check-in, as it was scheduled on a day that differed from a normal report day, Barnes was searched, and rather than briefly meeting at a lobby window, Barnes was taken into an office. The two-hour meeting was longer than the “run-of-the-mill” ten to twenty minute parole update. As a result, the Court found Barnes to be in custody during the interrogation. The mid-stream Miranda warning was held to be ineffective. The admission, the Court said, should have been no surprise to the FBI agents given the nature of the questioning and the use of the recorded call. The agents purposely delayed the warnings to make Barnes think they were focused on other suspects, but the court said they could only expect Barnes to incriminate himself from the start.

There was no break in the interrogation. The second round was a continuation of the first, and the timing of the warning reduced the impact of the recitation of constitutional rights. Finally, the agents took no measures, such a substantial time break or warning that what Barnes said before the reading of the “advice of rights” card could not be used against him, to mitigate their error.

Based upon those factors, the Court held the post-warning statements should have been suppressed because the error was not harmless. See: United States v. Barnes, 713 F.3d 1200 (9th Cir 2013).

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Related legal case

United States v. Barnes