United States v. Carrizales-Toledo

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
July 20, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,
v. No. 05-2308
JOSE ROBERTO CA RR IZA LES-
TO LED O,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D.C. NO . CR . NO . 05-856 JP)

Dennis J. Candelaria, Assistant Federal Public Defender, Las Cruces, New
M exico, for the Defendant-Appellant.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with her on the brief), Las Cruces, New M exico, for the Plaintiff-
Appellee.

Before O’BRIEN, M cW ILLIAM S, and M cCO NNELL, Circuit Judges.

M cCO NNELL, Circuit Judge.

Jose Roberto Carrizales-Toledo was apprehended near the M exican border

driving a pickup truck containing over 500 pounds of marijuana. During his
initial detention, M r. Carrizales-Toledo made self-incriminating statements to the

border patrol agent before and after receiving the warnings required by M iranda

v. Arizona, 384 U.S. 436 (1966). He entered a conditional plea of guilty to one

count of possession with intent to distribute 100 or more kilograms of marijuana,

reserving the right to appeal the district court’s order denying his motion to

suppress evidence of the marijuana and of his incriminating statements.

I. B AC KGR OU N D

On the morning of December 30, 2004, United States Border Patrol Agent

Bernardo Ramirez was patrolling in a marked Border Patrol unit in the vicinity of

Hachita, New M exico. Hachita is a rural area in the “bootheel” region of New

M exico, close to the border between the United States and M exico. Agent

Ramirez had worked in this remote area for four years. On this particular

morning he was patrolling alone.

Just before 9:00 a.m., Agent Ramirez turned onto Peterson Ranch Road, a

single-lane dirt road that extends through private land (the Peterson Ranch) from

New M exico Highway 81 to the M exican border. Agent Ramirez had previously

encountered smuggling loads in the area, and less than a week earlier some of his

colleagues had intercepted and seized a 900-pound load of marijuana on the road.

After traveling east on Peterson Ranch Road for approximately three miles, Agent

Ramirez encountered the Peterson family, who were driving in the opposite

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direction. Agent Ramirez asked whether there would be any ranch personnel

working further east on their property that day, and M r. Peterson said there would

not. The Petersons left and Agent Ramirez continued driving east toward the

border.

After driving another mile down the road, Agent Ramirez saw a gray

Chevrolet pickup truck driving toward him on the Peterson Ranch Road. He was

approximately 12 to 15 miles from the border between the United States and

M exico at that time. Although Agent Ramirez was familiar with the local

residents and their vehicles, he did not recognize the oncoming truck or its

driver.

According to Agent Ramirez, as the vehicle approached he pulled to the

side of the road to allow the driver to pass. Instead of driving past him, however,

the driver stopped, looked behind him, and started driving backwards in an erratic

manner. At that point Agent Ramirez suspected the driver was involved in

unlaw ful activity. He began following the truck but did not engage his

emergency lights or siren. After Agent Ramirez trailed the vehicle for about 100

yards, the driver of the truck suddenly brought his vehicle to a halt. Agent

Ramirez applied his brakes, skidded a short distance, and came to a stop with his

front bumper touching the front bumper of the truck.

After his vehicle had come to a stop, Agent Ramirez looked up and saw

that the driver of the truck had his hands in the air. Agent Ramirez then exited

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his vehicle, unholstered his firearm (but did not point it at the driver), yelled for

the driver to keep his hands in the air, and began walking toward the passenger

side of the truck. As Agent Ramirez approached the truck, he saw several square-

shaped bundles wrapped in cellophane on the truck’s passenger seat and

floorboard area. He also saw a large blanket covering what appeared to be more

bundles lying inside the extended cab of the truck. Based on his experience as a

Border Patrol agent, he suspected that these bundles contained marijuana.

Upon reaching the passenger side of the truck, Agent Ramirez tried to open

the passenger-side door but found that it was locked. The driver, later identified

as M r. Jose Roberto Carrizales-Toledo, used the electric-door locks to unlock the

door. Agent Ramirez then opened the door and could immediately smell the

marijuana inside the truck.

W ith the door open and M r. Carrizales-Toledo’s hands still in the air,

Agent Ramirez asked the driver, in Spanish, “what he’s doing.” M otion Hearing

Transcript (“M ot. Hr’g Tr.”) 15. M r. Carrizales-Toledo said he “was trying to get

back to M exico because he didn’t want [the Agent] to catch him with all that

stuff.” Id. Agent Ramirez then asked him, “W ith what stuff?” Id. M r.

Carrizales-Toledo replied, “This stuff. The marijuana.” Id.

At that point, Agent Ramirez walked to the other side of the truck, removed

M r. C arrizales-Toledo, placed him in handcuffs, and took him to his patrol car.

Agent Ramirez put M r. Carrizales-Toledo in the backseat and read him the

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M iranda warnings in Spanish. M r. Carrizales-Toledo indicated that he

understood his rights, and agreed to make a statement without a lawyer being

present. A gent Ramirez then called for assistance.

After two or three additional Border Patrol agents had arrived at the scene,

the agents began questioning M r. Carrizales-Toledo again. During this second

interrogation, M r. Carrizales-Toledo told the A gents that he was trying to cross

into the U nited States but did not have enough money to hire a smuggler. He

claimed that an unidentified male offered him $700 to smuggle the marijuana

across the border into the United States. M r. Carrizales-Toledo was supposed to

drive the truck, loaded with marijuana, to a gas station on the outskirts of

Deming, New M exico, where he would deliver the truck and its contents to an

unknown individual. After hearing this confession, the A gents brought M r.

Carrizales-Toledo back to the Border Patrol station, where he signed a document

saying that he had been given the M iranda warnings.

On April 21, 2005, a federal grand jury in the District of New M exico

returned an indictment charging M r. Carrizales-Toledo with possession with

intent to distribute 100 or more kilograms of marijuana in violation of 21 U.S.C.

§ 841(a)(1) and 21 U.S.C. § 841(b)(1)(B). On M ay 3, 2005, M r. Carrizales-

Toledo filed a motion to suppress any statements and physical evidence seized as

a result of his detention and arrest on December 30, 2004. The district court held

an evidentiary hearing on the motion to suppress on M ay 17, 2005.

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 At the hearing, Agent Ramirez offered the preceding account of the

circumstances surrounding their encounter. M r. Carrizales-Toledo offered a

different version of the events. For example, he claimed that he was the one who

pulled to the side of the road, and that after his truck had stopped Agent Ramirez

drove directly at him to block the truck’s path. He also denied driving his truck

in reverse after seeing the Border Patrol vehicle. The district court weighed the

conflicting testimony of Agent Ramirez and M r. Carrizales-Toledo, and found

that Agent Ramirez’s testimony was “more consistent, plausible, and credible.”

Order 7.

Based on Agent Ramirez’s account of the events, the court held that the

encounter between the agent and M r. Carrizales-Toledo became a seizure within

the meaning of the Fourth Amendment when the front bumper of the Border

Patrol vehicle made contact with the front bumper of M r. Carrizales-Toledo’s

truck, that Agent Ramirez had reasonable suspicion to conduct an investigative

stop, and that the agent had probable cause to arrest M r. Carrizales-Toledo.

Consequently, the court denied M r. Carrizales-Toledo’s motion to suppress the

evidence obtained in the search and seizure of his vehicle.

The court also denied the motion to suppress M r. Carrizales-Toledo’s self-

incriminating statements, despite the lack of M iranda warnings before the

defendant first admitted to having marijuana in the truck. It found that even if

M r. Carrizales-Toledo was in custody during the initial questioning, a reasonable

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officer in Agent Ramirez’s situation would have been concerned over the

possibility that there was a concealed weapon in the truck, and therefore the

Agent’s brief interrogation falls under the “public safety” exception to M iranda.

On June 6, 2005, M r. Carrizales-Toledo entered a conditional plea of guilty

to the Indictment, reserving the right to appeal the district court’s order denying

the suppression motion. The court entered judgm ent against M r. Carrizales-

Toledo on September 19, 2005, and sentenced him to 60 months in prison. 1

II. D ISC USSIO N

A. The Investigative Stop

The Fourth Amendment protects the “right of people to be secure . . .

against unreasonable searches and seizures.” U.S. Const. amend. IV. “A traffic

stop is a Fourth Amendment seizure ‘even though the purpose of the stop is

limited and the resulting detention quite brief.’” United States v. Alcaraz-

Arellano, 441 F.3d 1252, 1257 (10th Cir. 2006) (quoting Delaware v. Prouse, 440

U.S. 648, 653 (1979)). Nonetheless, an initial traffic stop does not run afoul of

the Constitution if the officer has “probable cause, or at least articulable

1
The imprisonment range for M r. Carrizales-Toledo prescribed in the
United States Sentencing Commission Guidelines was 37 to 46 months. Pursuant
to 21 U.S.C. § 841(b)(1)(B), however, the statutory imprisonment range was five
to forty years. The district court sentenced M r. Carrizales-Toledo to the statutory
minimum, 60 months’ imprisonment.

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reasonable suspicion, that there has been a criminal violation or that there is

evidence of criminal activity in the vehicle.” United States v. Herrera, 444 F.3d

1238, 1242 (10th Cir. 2006). After considering the evidence presented at the

suppression hearing, the district court below found that Agent Ramirez had

reasonable suspicion to conduct an investigative detention of M r. Carrizales-

Toledo and his truck. “W e accept the trial court’s factual findings unless clearly

erroneous, and view the evidence in the light most favorable to the district court’s

finding.” United States v. Laughrin, 438 F.3d 1245, 1247 (10th Cir. 2006)

(internal quotation marks omitted). The ultimate determination of reasonableness

under the Fourth Amendment is reviewed de novo. Id.

In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Supreme

Court set forth a non-exhaustive list of factors that courts may consider when

determining whether a traffic stop in a border area was justified by reasonable

suspicion of unlawful activity:

(1) characteristics of the area in which the vehicle is encountered; (2)
the proximity of the area to the border; (3) the usual patterns of
traffic on the particular road; (4) the previous experience of the agent
with alien traffic; (5) information about recent illegal border
crossings in the area; (6) the driver’s behavior, including any obvious
attempts to evade officers; (7) aspects of the vehicle, such as a
station wagon with concealed compartments; and (8) the appearance
that the vehicle is heavily loaded.

United States v. Quintana-Garcia, 343 F.3d 1266, 1270 (10th Cir. 2003) (citing

Brignoni-Ponce, 422 U .S. at 874–75). W hen weighing these factors, courts must

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look at the totality of the circumstances to determine whether the officer had a

particularized and objective basis for suspecting unlawful activity. Id.

M r. Carrizales-Toledo does not dispute that the first five Brignoni-Ponce

factors w eigh in favor of the government’s position that the Agent had reasonable

suspicion for the stop. The encounter took place in a remote and rural area of

New M exico on a single-lane dirt road that leads directly to the border between

the United States and M exico, only 12 to 15 miles from the border; Agent

Ramirez was familiar with the local residents and vehicles in the area and did not

recognize M r. Carrizales-Toledo or his truck; normally there was only ranch

traffic on the road at that hour, and the ranch owner had told Agent Ramirez that

no one would be working further east toward the border with M exico that day;

Agent Ramirez had previously experienced alien traffic and illegal border

crossings in the area; and the agent knew that a large load of marijuana had been

seized in the area less than a w eek earlier.

Additionally, we find that the sixth Brignoni-Ponce factor, Defendant’s

reaction to seeing the B order Patrol vehicle, also supports the district court’s

finding that Agent Ramirez had reasonable suspicion for the initial detention.

The district court made a factual finding that “[f]rom the agent’s perspective,

Defendant appeared to stop his truck, reverse direction, and move away from the

agent’s vehicle in an abrupt and erratic manner even though the agent had not yet

blocked his path or made any show of official authority.” O rder 20. The court

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determined that “[f]rom this standpoint, Defendant’s actions could reasonably and

objectively be viewed as evasive or suspicious”; and therefore “support[] the

reasonableness of the agent’s suspicions.” Id.

M r. Carrizales-Toledo claims that his driving w as not suspicious because

after backing up he stopped at a w ide point in the road, and that a reasonable

officer should have known that he was attempting to allow the agent to pass him.

Yet M r. Carrizales-Toledo does not challenge the district court’s finding that

Agent Ramirez had already pulled his Border Patrol vehicle to the side of the road

and left enough room for the truck to pass. M oreover, the reasonable suspicion

standard does not require that Border Patrol agents be able to rule out all

potentially innocent explanations for a suspect’s behavior before making a stop.

It is not impossible that M r. Carrizales-Toledo was driving backwards to find a

safer place for the two vehicles to pass. Nonetheless, since there was already

enough room for the truck to pass, and M r. Carrizales-Toledo was driving away

from the Agent and toward the border in an erratic manner, we agree with the

district court that an agent could reasonably view his behavior as suspicious.

Considering the totality of the circumstances surrounding the investigative

detention, we agree with the district court that Agent Ramirez had a reasonable

suspicion that M r. Carrizales-Toledo was engaged in illegal activities and that the

initial stop therefore did not violate M r. Carrizales-Toledo’s Fourth Amendment

rights.

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 The M iranda Issue

In M iranda v. Arizona, the Supreme Court concluded that “the process of

in-custody interrogation of persons suspected or accused of crime contains

inherently compelling pressures which work . . . to compel him to speak where he

would not otherwise do so freely.” 384 U .S. 436, 467 (1966). To guard against

this danger, the Court requires that “the accused must be adequately and

effectively apprised of his rights and the exercise of those rights must be fully

honored.” Id. Absent these specific warnings, there is “a presumption of

coercion” for custodial confessions “that is generally irrebuttable for purposes of

the prosecution’s case in chief.” United States v. Patane, 542 U.S. 630, 639

(2004).

During the events leading up to and after his arrest, M r. Carrizales-Toledo

made two self-incriminating statements to Agent Ramirez regarding the marijuana

in his truck. The first was when Agent Ramirez initially stopped M r. Carrizales-

Toledo, approached the passenger-side of the pickup truck he was driving, and

asked him “what he’s doing.” M ot. Hr’g Tr. 15. M r. Carrizales-Toledo answered

that he “was trying to get back to M exico because he didn’t want [the Agent] to

catch him with all of that stuff,” in reference to the more than 500 pounds of

marijuana sitting on the passenger seat and in the cab of the truck. Id. M r.

Carrizales-Toledo made his second self-incriminating statement after he was

arrested and read the M iranda warnings. He agreed to make another statement

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without the presence of an attorney, and after two or three more Border Patrol

agents had arrived, he told the agents that he had been paid $700 to smuggle the

marijuana across the border. At the suppression hearing, M r. Carrizales-Toledo

argued that his first confession was inadmissible because the Agent failed to tell

him the M iranda warnings beforehand; he then argued that his second confession

was inadmissible because it was a direct result of the first. He repeats those

arguments on appeal.

The district court held that “the agent’s brief initial questioning about what

Defendant was doing and what was in the truck falls under the public-safety

exception” to M iranda, and therefore “provides no basis for suppressing the [two]

statements.” Order 25. As the government concedes, this Court has not

considered application of the public safety exception outside the context of

questioning regarding firearms or weapons. Appellee’s Br. 19. Because it is not

necessary to resolution of this case, we decline to address that legal question. A s

an alternative ground for affirmance, the government argues that at the time of the

initial encounter, M r. Carrizales-Toledo was not in custody, and thus that

M iranda is inapplicable. The district court, however, assumed for purposes of the

suppression motion that M r. Carrizales-Toledo was in custody at the time of the

initial encounter. Because the record is not sufficiently clear regarding the facts

bearing on that conclusion, we choose not to address the government’s argument.

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 Instead, we rely on a ground fully supported by the record and argued on

appeal by both parties. “W e are free to affirm the district court’s decision on any

ground supported by the record.” United States v. Hauk, 412 F.3d 1179, 1185

(10th Cir. 2005). W e hold that M r. Carrizales-Toledo’s second confession, which

was voluntary and occurred after the M iranda warnings were given, was

admissible, thus curing any potential concerns regarding the initial statements.

The Supreme Court first addressed this issue in Oregon v. Elstad, 470 U.S.

298 (1985). In Elstad, police officers went to the defendant’s home and

questioned him about a burglary without first reading him the M iranda warnings.

Id. at 301. The defendant admitted being present at the burglary, at which point

the officers took him to the police station. Id. An hour after arriving at the

station, the officers informed the defendant of his M iranda rights. Id. The

defendant then waived those rights and gave a full statement detailing his role in

the crime. Id. at 301–02. The Court held that “[t]hough M iranda requires that

the unwarned admission must be suppressed, the admissibility of any subsequent

statement should turn in these circumstances solely on whether it is knowingly

and voluntarily made.” Id. at 309. It rejected the theory that the initial,

unwarned statement creates a “lingering compulsion” based on “the psychological

impact of the suspect’s conviction that he has let the cat out of the bag and, in so

doing, has sealed his own fate.” Id. at 311. “[A]bsent deliberately coercive or

improper tactics in obtaining the initial statement,” the Court found that

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“subsequent administration of M iranda warnings . . . ordinarily should suffice to

remove the conditions that precluded admission of the earlier statement.” Id. at

314.

The Supreme Court revisited this issue in M issouri v. Seibert, 542 U.S. 600

(2004). Unlike Elstad, where “the officer’s initial failure to warn was an

‘oversight,’” id. at 614, in Seibert the police “used a two-step questioning

technique based on a deliberate violation of M iranda,” id. at 620 (K ennedy, J.,

concurring in the judgment). The interrogating officer began questioning the

suspect without providing the M iranda warnings; after the suspect confessed, the

officer gave the warnings and resumed the questioning to lead the suspect back

over the same ground. Id. at 604 (plurality). The Court found that the

interrogating officers had withheld the M iranda warnings from the suspect “to

obscure both the practical and legal significance of the admonition when finally

given,” id. at 620 (Kennedy, J.), and that the interrogation reflected a strategy

“dedicated to draining the substance out of M iranda,” id. at 617 (plurality).

Although the Court held that statements obtained through such a two-step

technique are inadmissible, none of the opinions in Seibert received the votes of

five Justices. The plurality opinion, which was joined by four of the Justices,

held that “[t]he threshold issue when interrogators question first and warn later is

. . . whether it would be reasonable to find that in these circumstances the

warnings could function ‘effectively’ as M iranda requires.” Id. at 611–12. Any

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M iranda warning “inserted in the midst of [a] coordinated and continuing

interrogation” is problematic; and unless “a reasonable person in the suspect’s

shoes could have seen the station house questioning as a new and distinct

experience, [and thus] the M iranda warnings could have made sense as presenting

a genuine choice whether to follow up on the earlier admission,” the plurality

would find the postwarning statements inadmissible. Seibert, 542 U.S. at 614–16.

The plurality set forth five “relevant facts that bear on whether M iranda warnings

delivered midstream could be effective”:

[1] the completeness and detail of the questions and answers in the
first round of interrogation, [2] the overlapping content of the two
statements, [3] the timing and setting of the first and the second, [4]
the continuity of police personnel, and [5] the degree to which the
interrogator’s questions treated the second round as continuous w ith
the first.

Id. at 615. These factors, all of w hich concern the relationship between the first

and second interrogations, are intended to aid courts in determining whether an

initial, unwarned interrogation operated to “thwart M iranda’s purpose of reducing

the risk that a coerced confession would be admitted.” Id. at 617.

Justice Kennedy concurred in the judgment, but on what he described as

“narrower” grounds. Id. at 622 (Kennedy, J.). Like the plurality, Justice

Kennedy wrote that “[t]he interrogation technique used in this case is designed to

circumvent M iranda v. Arizona,” and “statements obtained through the use of this

technique are inadmissible.” Id. at 618. For Justice Kennedy, however, the

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plurality’s test, which “envisions an objective inquiry from the perspective of the

suspect, and applies in the case of both intentional and unintentional two-stage

interrogations, . . . cuts too broadly.” Id. at 621–22. Instead, he believed that

unless the police used “the two-step interrogation technique . . . in a calculated

way to undermine the M iranda warning,” then “[t]he admissibility of postwarning

statements should continue to be governed by the principles of Elstad.” Id. at

622. In those “infrequent case[s]” where the interrogating officer deliberately

uses the two-step strategy, “postwarning statements that are related to the

substance of prewarning statements must be excluded unless curative measures

are taken before the postwarning statement is made.” Id. If the two-step method

was used deliberately, the interrogating officer must take “curative measures . . .

designed to ensure that a reasonable person in the suspect’s situation would

understand the import and effect of the M iranda warning,” such as “a substantial

break in time and circumstances between the prewarning statement and the

M iranda warning,” or “an additional warning that explains the likely

inadmissibility of the prewarning custodial statement.” Id.

The plurality resisted Justice Kennedy’s attempt to redirect the Court’s

inquiry to the intent of the interrogating officer. According to the plurality,

“[b]ecause the intent of the officer will rarely be as candidly admitted as it was

here . . . , the focus is on facts apart from intent that show the question-first tactic

at work.” Id. at 616 n.6 (plurality). The four dissenting Justices applauded what

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they described as “[t]he plurality’s rejection of an intent-based test,” explaining

that because the Fifth Amendment “requires us to assess whether a suspect’s

decision to speak truly was voluntary[,] . . . we focus our analysis on the way in

which suspects experience interrogation.” Id. at 624 (O ’Connor, J., dissenting).

Ultimately, however, the dissent concluded that “the plurality gives insufficient

deference to Elstad,” and states that the Court should have “analyze[d] the two-

step interrogation procedure under the voluntariness standards central to the Fifth

Amendment.” Id. at 628–29.

Ordinarily, where “a fragmented Court decides a case and no single

rationale explaining the result enjoys the assent of five Justices, the holding of the

Court may be view ed as that position taken by those M embers w ho concurred in

the judgements on the narrowest grounds.” M arks v. United States, 430 U.S. 188,

193 (1977) (internal quotation marks omitted). That might seem to be the

Kennedy concurrence. United States v. M ashburn, 406 F.3d 303, 308-09 (4th Cir.

2005).

In practice, however, the M arks rule produces a determinate holding “only

when one opinion is a logical subset of other, broader opinions.” King v. Palmer,

950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). W hen the plurality and concurring

opinions take distinct approaches, and there is no “narrowest opinion”

representing the “common denominator of the Court’s reasoning,” then M arks

becomes “problematic.” Id. at 781, 782; see, e.g., Nichols v. United States, 511

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U.S. 738, 745 (1994) (discussing the lower courts’ treatment of Baldasar v.

Illinois, 446 U.S. 222 (1980)); Grutter v. Bollinger, 539 U.S. 306, 325 (2003)

(discussing the lower courts’ treatment of Regents of University of California v.

Bakke, 438 U.S. 265 (1978)). W e do not apply M arks when the various opinions

supporting the Court’s decision are mutually exclusive. See Homeward Bound,

Inc. v. Hissom M em’l Ctr., 963 F.2d 1352, 1359 (10th Cir. 1992) (citing King,

950 F.2d at 782).

Determining the proper application of the M arks rule to Siebert is not easy,

because arguably Justice Kennedy’s proposed holding in his concurrence was

rejected by a majority of the Court. See United States v. Rodriguez-Preciado, 399

F.3d 1118, 1138–41 (9th Cir. 2005) (Berzon, J., dissenting in part). As Judge

Berzon explained, “three of the four Justices in the plurality and the four

dissenters decisively rejected any subjective [test] . . . based on deliberateness on

the part of the police.” Id. at 1139. This case does not require us to determine

which opinion reflects the holding of Seibert, however, since M r. Carrizales-

Toledo’s statements w ould be admissible under the tests proposed by the plurality

and by the concurring opinion.

Applying the plurality’s five “relevant facts” to this case, we find that the

M iranda warning provided to M r. Carrizales-Toledo was sufficient to inform him

that he could choose whether to continue his confession in the second

interrogation. Under the first factor, we look at “the completeness and detail of

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the questions and answers in the first round of interrogation.” Seibert, 542 U.S.

at 615. Agent Ramirez merely asked M r. Carrizales-Toledo “what he’s doing”;

and Defendant offered a brief (albeit damning) reply that he was trying to evade

the agent to avoid being caught with “that stuff.” M ot. Hr’g Tr. 15. Agent

Ramirez then asked him, “W ith what stuff?” Id. M r. Carrizales-Toledo replied,

“This stuff. The marijuana.” Id. Assuming these questions even amount to a

custodial interrogation, they fall far short of the interrogator’s conduct in Seibert,

where “the [initial] questioning was systematic, exhaustive, and managed with

psychological skill.” Seibert, 542 U.S. at 616. The brevity and spontaneity of

Agent Ramirez’s initial questioning reduced the likelihood that it undermined the

subsequent M iranda warnings given to M r. Carrizales-Toledo.

The second factor is the extent of “the overlapping content of the two

statements.” Id. at 615. M r. Carrizales-Toledo provided significant new

information to the Agent during the second questioning, including where he

received the marijuana, what he was paid for transporting it, and his intended

destination. In contrast, the interrogating officers in Seibert covered the same

ground in both rounds of questioning, which the plurality believed could

aggravate “any uncertainty on [the suspect’s] part about a right to stop talking

about matters previously discussed.” Id. at 616. The differing content of M r.

Carrizales-Toledo’s first and second confessions further suggests that the initial

interrogation did not undermine the M iranda warnings.

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 The third and fourth factors are “the timing and setting of the first and

second” interrogations and “the continuity of police personnel,” respectively. Id.

at 615. After the first round of questioning, Agent Ramirez removed M r.

Carrizales-Toledo from his vehicle, arrested him, placed him in handcuffs, put

him in the backseat of the B order Patrol vehicle, waited for two or three more

agents to arrive, and had the other agents participate in the second round of

questioning. The time lapse between the first and second interrogation, the

presence of additional officers, and the change in location all allowed M r.

Carrizales-Toledo to see that the second round of questioning was “a new and

distinct experience” rather than a “coordinated and continuing interrogation.” Id.

at 615, 613. Because the questioning was broken up into two distinct sessions,

the midstream M iranda warnings were more likely to have had their intended

effect.

The fifth, and perhaps the most important, factor is “the degree to which

the interrogator’s questions treated the second round as continuous with the first.”

Id. at 615. The plurality expressed concern about officers in the second

interrogation referring back to the confession already given, believing that such

references create the impression that the second interrogation is a “mere

continuation” of the first, and that it would be “unnatural” for the suspect “to

refuse to repeat . . . what had been said before.” Id. at 616–17. These concerns

are inapposite in this case, however, since there is no evidence that the agents

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ever referred back to M r. Carrizales-Toledo’s initial statements during the second

interrogation. Because all five of the “relevant facts” indicate that the M iranda

warning given to M r. Carrizales-Toledo was effective in preparing him for the

successive interrogation, under the plurality’s test in Seibert his statements are

admissible.

W e reach a similar conclusion applying the “narrower test” set forth by

Justice Kennedy in his concurrence. Id. at 622. Justice Kennedy maintained that

unless “the two-step interrogation technique was used in a calculated way to

undermine the M iranda warning,” the courts should follow “the principles of

Elstad” when determining the admissibility of postw arning statements. Id. at 622.

The evidence presented at the suppression hearing leaves little room for suspicion

that Agent Ramirez intentionally withheld the M iranda warnings during the initial

interrogation. The circumstances of the encounter, including the suddenness with

which M r. Carrizales-Toledo confessed, the fact that his confession was in

response to Agent Ramirez’s first question, and the open-ended nature of the

question, all suggest that Agent Ramirez simply did not anticipate the confession

when he asked M r. Carrizales-Toledo “what he’s doing.” M oreover, because the

initial conversation took place just after Agent Ramirez had stopped the truck,

and M r. Carrizales-Toledo was still in his vehicle at the time, it is likely that

Agent Ramirez failed to provide the M iranda warning because at that point it was

unclear w hether M r. Carrizales-Toledo was in custody.

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 Since Agent Ramirez’s initial conversation with M r. Carrizales-Toledo was

not a deliberate two-step interrogation, the only remaining question with respect

to the admissibility of his statements is whether they were voluntary. After the

initial confession, Agent Ramirez apprised M r. Carrizales-Toledo of his rights,

and M r. Carrizales-Toledo indicated that he understood those rights. In Elstad,

the Court held that the subsequent administration of M iranda warnings after a

voluntary but unwarned custodial confession will “remove the conditions that

precluded admission of the earlier statement.” 470 U.S. at 314. Unless his initial

confession was involuntary, therefore, M r. Carrizales-Toledo’s motion to suppress

the second confession was properly denied.

“The essence of voluntariness is whether the government obtained the

statements by physical or psychological coercion such that the defendant’s w ill

was overborne.” United States v. Rith, 164 F.3d 1323, 1333 (10th Cir. 1999).

Courts typically consider five factors in a voluntariness inquiry: “(1) the age,

intelligence, and education of the defendant; (2) the length of [any] detention; (3)

the length and nature of the questioning; (4) whether the defendant was advised of

[his or] her constitutional rights; and (5) whether the defendant was subjected to

physical punishment.” United States v. Glover, 104 F.3d 1570, 1579 (10th Cir.

1997). M r. Carrizales-Toledo was 33 years old at the time of his arrest. He had

received 14 years of formal education in M exico and was apparently just one year

shy of receiving a degree in chemical engineering. He made his self-

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incriminating statement after being detained for less than a few minutes; and it

was in response to a single open-ended question from the agent. M oreover, M r.

Carrizales-Toledo does not claim that he was subjected to any physical

punishments or threats. Although Agent Ramirez had his weapon unholstered

during the initial questioning, the district court found that he did not point it at

the defendant or threaten him in any way. Considering these factors in their

totality, we find that M r. Carrizales-Toledo’s initial statement was voluntary. His

second confession was therefore properly admitted.

III. C ON CLU SIO N

The district court order denying M r. Carrizales-Toledo’s motion to suppress

is therefore AFFIRM ED.

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