United States v. Moore, No. 10-2740-cr (2d Cir. February 22, 2012) (Jacobs, Cabranes, Livingston, CJJ)
This decision marks the circuit’s latest effort to sort out a “two-step” interrogation in the wake of Missouri v. Seibert, 542 U.S. 600 (2004).
Chauncy Moore, having evaded a Connecticut police officer who had a warrant for Moore’s arrest, tossed a gun onto the roof of a house. He was apprehended on the warrant early the next day, but did not receive Miranda warnings. He spent the morning in a police station lockup, but was not brought to court due to a paperwork glitch. Later that day, still at the precinct, Moore twice asked to speak with a detective, but none was around. In the afternoon, he was moved to a cell with a pay phone, from which he spotted a narcotics officer he knew, Ronald Pine, and called him over. Pine was not involved in Moore’s case, but knew that it involved a gun. Pine asked Moore to tell him where the gun was, and Moore declined. An ATF agent happened to be nearby, and Pine called him over. Pine told Moore that he could talk to the ATF ageant after Moore helped them find the gun.
Moore agreed, told them where he tossed the gun, and drew a map. The two officers went to the location, where they were joined by detectives, and recovered the gun. Pine told the detectives that Moore wanted to speak to them and, about ninety minutes after Moore first started talking to Pine, they returned to the station house and interviewed him, this time giving him Miranda warnings. Moore waived his rights and confessed.
The district court held that the initial, un-Mirandized statements should be suppressed, but also held that the later, warned statement was admissible. On Moore’s appeal, the circuit, after surveying Seibert and its progeny, affirmed.
Here, there was no subjective evidence that Pine and the ATF agent were trying to circumvent Miranda. Rather, while the “public safety” exception to Miranda might not have applied on the facts here, the “undoubted public safety considerations [of a discarded gun] plausibly account for the conduct of the police in a way that militates against finding that the first interview was a premeditated attempt to evade Miranda.” Similarly, the “objective evidence,” including the narrowness of the overlap between the subjects of the two interrogations, the participation of different officers, and the elapse of more than ninety minutes “decidedly points against concluding that the government engaged in a deliberate two-step process designed to undermine Moore’s Fifth Amendment rights.” Finally, the circuit noted that it was clear that Moore’s later statement was entirely voluntary, and that the Miranda waiver was itself valid.
Moore also argued, alternatively, that the questioning occurred in violation of his Sixth Amendment right to counsel. The circuit agreed with the district court, however, that there was no Sixth Amendment violation because the right to counsel had not yet attached to the federal gun charge to which he pled guilty.