Page 41 - TPA Journal May June 2025

unless curative measures are taken before the evidence of a deliberate attempt to employ a two-
postwarning statement is made.” Where officers step strategy, Seibert does not apply.
did not deliberately employ a two-step strategy, Because officers did not employ the proscribed
Oregon v. Elstad, 470 U.S. 298 (1985), governs two-step strategy, Elstad controls the remainder of
“the admissibility of postwarning statements.” the analysis. Elstad permits “a post-warning con-
fession even where the police had previously
The district court held that the officers did not obtained a pre-warning confession, so long as the
employ a deliberate two-step strategy. Rather, pre-warning confession was voluntary,” and “the
“[t]he series of events . . . unfolded quickly,” and second statement was also voluntarily made.” In
upon making contact with Fernandez, the “officers evaluating voluntariness, “the finder of fact must
only knew that a man claiming he was being examine the surrounding circumstances and the
chased . . . was heading toward OPD with a entire course of police conduct with respect to the
firearm.” According to the district court, this suspect.” “[A] statement is involuntary . . . if the
information “very quickly elicited panicked tactics employed by law enforcement officials
responses from the officers.” For that reason, they constitute a Fifth Amendment due process viola-
“quickly disarmed [Fernandez] and questioned tion and are so offensive to a civilized system of
him to determine if there was any danger to the justice that they must be condemned.” “A subse-
community or officers.” Thus, based on the quent administration of Miranda warnings to a
record, the district court determined that the offi- suspect who has given a voluntary but unwarned
cers had not “deliberately failed” to Mirandize statement” will ordinarily “remove the conditions
Fernandez. that precluded admission of the earlier statement.”
We agree with the district court. “There is no evi- The district court held that after Fernandez was
dence of a deliberate attempt to employ a two-step Mirandized at 2:00 p.m., he made incriminating
strategy in this case.” For one, nothing about the statements regarding his drug use at roughly 2:04
circumstances or nature of the officers’ initial p.m. (in the patrol vehicle) and 2:34 p.m. (in the
questioning “indicate[s] that coercion or other interrogation room). It explained that the circum-
improper tactics were used.” Other than his belief stances of Fernandez’s conversations with
that he was being chased by cartel members, Chadwick and Kapets “establish [Fernandez]
Fernandez “was calm and cooperative, and the knew his rights, including his right to remain
[officers] did not act with aggressiveness or hos- silent, on both occasions,” and he nonetheless
tility. Moreover, “confront[ing] the defendant “knowingly chose to waive them.” Therefore, the
with [his] inadmissible prewarning statements and district court concluded that Fernandez’s post-
push[ing] [him] to acknowledge them” would pro- warning statements were a product of his “free and
vide further evidence that the officers were using rational choice” and admissible.
the two-step strategy “in a calculated way to (procedural discussion omitted. Ed.)
undermine the Miranda warning.” Merely asking We affirm the district court’s judgment.
the defendant “about the same subjects pre- and
post-Miranda” is not forbidden. Here, the record U.S. v. Fernandez, 5 th Cir. No. 21-50283, Sept.
does not show that the officers confronted 07, 2022.
Fernandez with his prewarning statements to ****************************************
deliberately circumvent Miranda. Instead, they *************************
“merely responded to evidence” that they acquired
while investigating Fernandez’s claim that he was
being chased. In contrast, the post-warning inter-
view in Seibert “resembled a cross-examination.”
Since the officers did not confront Fernandez with
his prewarning statements, and there is no other

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