FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTWION E. THOMPSON,
Petitioner-Appellant, No. 08-16186
v.
D.C. No.
5:05-cv-01264-JF
D. L. RUNNEL, Warden,
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Argued and Submitted
February 10, 2010—San Francisco, California
Filed September 8, 2010
Before: Alfred T. Goodwin, Marsha S. Berzon and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Ikuta
13697
THOMPSON v. RUNNEL 13701
COUNSEL
J. Bradley O’Connell, Federal District Appellate Project, San
Francisco, California, for the appellant.
Edmund G. Brown, Gerald A. Engler, Peggy S. Ruffra and
Sharon G. Birenbaum, Office of the Attorney General of Cali-
fornia, San Francisco, California, for the appellees.
OPINION
BERZON, Circuit Judge:
Before he was given Miranda warnings, Antwion Thomp-
son confessed to killing his girlfriend. He then confessed
13702 THOMPSON v. RUNNEL
again once he was properly advised of his rights. He was con-
victed by a California jury of first-degree murder, mayhem,
and personal deadly weapon use. Before the California courts
and in this federal habeas proceeding he maintains that the
admission at trial of his confession violated the privilege
against self-incrimination, because the investigating officers
deliberately withheld Miranda warnings until after he had
confessed to the crime. The district court denied the petition.
We reverse.
I.
Arie Bivins, Thompson’s sometime girlfriend, was mur-
dered between 1:30 and 4:30 p.m. on June 22, 1998. Bivins
was seventeen, Thompson eighteen. In the preceding days and
months, Bivins had attempted to break up with Thompson,
prompting violent reactions from him.
On the day of the murder, Thompson’s father saw Thomp-
son and Bivins talking outside his house at 1:30 p.m. Thomp-
son left his father’s house at 2:00, not saying where he was
going. At about 3:00, a dog in the yard next to Bivins’ house
barked ferociously. Thompson returned home at 4:00, told his
father he was worried about Bivins, and had his father drive
him to Bivins’ home. There, Thompson found Bivins’ front
door unlocked and her dead body just inside the door.
When the police arrived, Thompson appeared distraught.
Officer Solzman approached Thompson, who said he did not
feel well. Solzman offered to let Thompson lie down in the
air-conditioned police car, and Thompson agreed. Later,
homicide detective Conaty woke Thompson to ask him to go
to the police station to talk about finding the body. Thompson
responded that he wanted to go home and sleep. When Conaty
explained that Thompson’s assistance could be critical to the
investigation, Thompson agreed to go to the station. Thomp-
son was not placed under arrest at that time.
THOMPSON v. RUNNEL 13703
When Thompson arrived at the station he was placed in a
break room, where he waited approximately six hours. Officer
Solzman sat outside the break room doing paperwork.
Thompson’s father testified that he asked to speak to his son
but was refused; a police witness denied that there was any
such request.
Around 11:00 p.m., Inspectors Conaty and Giacomelli
moved Thompson into an interview room containing three
chairs and no other furniture. Thompson was not handcuffed
and did not ask to go home, but, by then, Conaty considered
him “the primary suspect.” The ensuing two-hour interview
was videotaped.
At the outset, Conaty told Thompson that the interview
could be conducted another time in the event Thompson was
too tired to do it. No Miranda warnings were given. Thomp-
son agreed to talk about the incident and gave an initial
account of his activities that day with little prompting by the
officers. Thompson insisted that he did not go to Bivins’
house between 10:30 a.m. and 4:00 p.m.
The tone of the interrogation then became more confronta-
tional: The officers invented an eyewitness account that put
Thompson at Bivins’ house around 2:30 p.m. and pressed
Thompson to explain the apparent contradiction. Thompson
suggested that the witness got the time wrong, but Conaty
forcefully disagreed: “No, no, no bro. Eight hours we’ve been
up there talking to these people. I’ve been very clear with
them about what we’re talking about. . . . Now you’ve got to
help me out with this thing.” As Inspector Conaty testified at
trial, this fabricated eyewitness account was one of several
techniques that he and Giacomelli employed for the purpose
of “keep[ing] the interview going” and “hav[ing] the defen-
dant place [himself] at the location.”
The breakthrough occurred when the officers tried again to
get Thompson to admit that he had been to the house in the
13704 THOMPSON v. RUNNEL
early afternoon, this time suggesting that Thompson had lied
earlier because he was scared, “understandable,” they said, in
light of his youth.1 Thompson thereupon broke into tears and
said he went alone to Bivins’ house around 2:00 p.m. where
he found her dead.2 Thompson told the officers he was scared
and wanted to kill himself.
No Miranda warnings had yet been administered, but the
interrogation continued. The officers told Thompson — again,
falsely — that they had found “high-velocity blood spatter”
on a brown shirt left in his bedroom and his fingerprint in
blood on a chair in Bivins’ living room. Citing this “evi-
dence” as proof that Thompson was at the scene and that a
fight occurred, the officers told Thompson, “What makes or
breaks this thing for how it comes out for you is to tell us
what the circumstances were. . . . [T]his is your one chance
to do that.”
Taking the bait, Thompson abandoned his story that Bivins
was already dead when he arrived at her house in the afternoon.3
He admitted to finding her alive and to stabbing her in the
chest during an altercation, although he insisted that he did so
accidentally. In response to further questions, Thompson then
elaborated upon the details of the altercation and the location
of the murder weapon and his bloodied clothing. When Con-
1
This too, the officers later admitted, was a technique employed during
the pre-Miranda phase of the interrogation to induce Thompson to incrimi-
nate himself — minimizing the moral blameworthiness of Thompson’s
conduct.
2
When, by this technique, the officers succeeded in inducing Thompson
to admit that he had gone alone to Bivins’ house, they had their first
“breakthrough.” As the Missouri Supreme Court observed in State v. Sei-
bert, “[i]nterrogators are taught that procuring the first admission” — “no
matter how small” — “usually leads to a full confession.” 93 S.W.3d. 700,
704 (Mo. 2002) (citing Arthur S. Aubry, Jr. & Rudolph R. Caputo, Crimi-
nal Interrogation 290 (1980)).
3
By this point, the state trial court found, the interrogation had become
custodial.
THOMPSON v. RUNNEL 13705
aty asked Thompson whether he felt better after “getting it all
off [his] chest,” Thompson repeated that he wanted to, and
intended to, commit suicide.
At this point, Conaty told Thompson that the decision
about what would happen next to Thompson would be up to
the District Attorney. Asked after that for more details about
the incident — still with no Miranda warnings — Thompson
gave a yet more detailed account of the altercation in Bivins’
living room. In response to specific questioning about who
held the knife, Thompson admitted that Bivins never wielded
it. Recounting the altercation once more, he admitted to stab-
bing her and slitting her throat after she had collapsed on the
floor. The officers asked several more questions about
Thompson’s intent in doing so and about his trip home after-
wards.
Only then did the interrogating officers provide the warn-
ings that Miranda specifies. See Miranda v. Arizona, 384 U.S.
436, 444-45 (1966). Having done so, they took Thompson
back through the day’s events. When Thompson reported that
he slit Bivins’ throat to prevent her from suffering, Conaty
corrected him based on a pre-Miranda warning admission:
“That, and you didn’t want her to necessarily survive and tell
on you, isn’t that right?” The officers repeatedly referred back
to the previous conversation as Thompson recapitulated his
account.
Some time after 1:00 a.m., after receiving the Miranda
warnings, Thompson asked to end the interview, saying that
he was sleepy and needed to lie down. But the interview con-
tinued with a few more questions. The officers then hand-
cuffed Thompson, without telling him that he was under
arrest, and, around 2:00 a.m., took him to look for the murder
weapon and clothing he had burned. Only after that excursion
was Thompson booked into jail. He spent the rest of the night
shackled to the floor in a safety cell, on suicide watch.
13706 THOMPSON v. RUNNEL
Stripped to his underwear and without a bed or blankets,
Thompson was unable to sleep.
At the jail the next morning Inspectors Conaty and Giaco-
melli re-advised Thompson of his Miranda rights. After
lunch, Thompson participated in a videotaped reenactment of
the crime at Bivins’ house.
Before trial, Thompson moved to suppress all of the state-
ments he had made during the interrogations and reenactment
on June 22 and 23. After a brief evidentiary hearing, the state
trial court first addressed the “custodial” prerequisite to the
Miranda requirement,4 determining that Thompson was not in
custody at the outset of the interrogation but that the interro-
gation became custodial sometime after Thompson admitted
to visiting Bivins’ house alone but before he conceded that he
found her there alive. The trial court suppressed the state-
ments made after the interrogation became custodial and
before Miranda warnings were administered. But the court
admitted Thompson’s post-Miranda confession and the video-
taped reenactment of the crime.
At trial, Thompson was convicted of first-degree murder,
Cal. Penal Code § 187, mayhem, § 203, and personal deadly
weapon use, § 12022(b)(1). His sentence was twenty-six years
to life in prison.
The state appellate court, deciding Thompson’s appeal on
February 3, 2004, relied on Oregon v. Elstad, 470 U.S. 298
(1985), to conclude that Thompson made a knowing and vol-
untary waiver of his rights once he was given Miranda warn-
ings, even though he had first confessed during a non-
Mirandized custodial interrogation. The California Supreme
Court summarily denied review on April 21, 2004. The
United States District Court for the Northern District of Cali-
fornia denied Thompson’s habeas petition, affirming the state
4
See Stansbury v. California, 511 U.S. 318, 322 (1994).
THOMPSON v. RUNNEL 13707
court determination that all of Thompson’s statements were
voluntary and citing a lack of evidence that the use of deliber-
ate “two-step” interrogations was an official policy of the
police department.5 This timely appeal followed.
II.
Because Thompson’s petition was filed after the effective
date of the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) and his claims were rejected by the state courts
in a decision on the merits, we may grant relief only if the last
reasoned state decision was “ ‘based on an unreasonable
determination of the facts in light of the evidence,’ ” or on a
legal determination that was “ ‘contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.’ ”
Kennedy v. Lockyer, 379 F.3d 1041, 1046 (9th Cir. 2004)
(quoting 28 U.S.C. § 2254).
We review the district court’s denial of a habeas petition de
novo, except that the district court’s findings of fact are
reviewed for clear error. McClure v. Thompson, 323 F.3d
1233, 1240 (9th Cir. 2003).
5
The district court stopped short of deciding whether the two-step inter-
rogation was a deliberate tactic in this instance. Instead, the court reasoned
as follows:
This Court notes that Petitioner does not cite to the record or
present any evidence in support of his assertion that the inspec-
tors in this case deliberately withheld their Miranda advisement
until Petitioner had incriminated himself. Moreover, unlike the
defendant in Seibert, Petitioner was not under arrest at the time
of questioning by the inspectors. There is no evidence in the
record concerning an official police policy of deliberately with-
holding Miranda warnings until a suspect has confessed. In con-
trast to the police officers in Seibert, the inspectors here did not
testify that they withheld Miranda warnings until after Petitioner
confessed. Under these circumstances, the state appellate court’s
analysis under Elstad was not an unreasonable application of the
law.
13708 THOMPSON v. RUNNEL
A.
Unless adequately exhausted in the California state courts,
Thompson’s challenge to the admission at trial of his post-
Miranda statements is not cognizable on habeas. 28 U.S.C.
§ 2254(b)(1). California argues that Thompson’s challenge to
the admission of his confession is unexhausted and so we may
not entertain it.
A petitioner satisfies “the exhaustion requirement if . . . he
has ‘fairly presented’ his federal claim to the highest state
court with jurisdiction to consider it . . . .” Johnson v. Zenon,
88 F.3d 828, 829 (9th Cir. 1996) (quoting Anderson v. Har-
less, 459 U.S. 4, 6 (1982)). To do so, Thompson was required
to “include reference to a specific federal constitutional guar-
antee, as well as a statement of the facts that entitle[d him] to
relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996).
Thompson satisfied this requirement. In his petition for
review to the California Supreme Court, Thompson argued
that his postwarning statements were inadmissible under
Miranda v. Arizona, 384 U.S. 436 (1966), “even though he
made them after the inspectors belatedly advised him of his
rights . . . .” Thompson attempted to distinguish Oregon v.
Elstad, 470 U.S. 298 (1985) — which had approved the
admission of a warned confession even though the Miranda
advisement was preceded by an unwarned confession — on
the ground that deliberate police misconduct in his case war-
ranted a stricter approach. Specifically, he noted that the U.S.
Supreme Court had recently heard argument in Missouri v.
Seibert, 542 U.S. 600 (2004). In that case, Thompson pointed
out, the Missouri Supreme Court had suppressed postwarning
statements because “police had purposefully withheld
Miranda warnings to obtain the defendant’s breakthrough
admission.” Thompson argued that his was a “very similar”
case to Seibert: In both, he maintained, “the detectives delib-
erately withheld Miranda advisements until after appellant
admitted he was holding the knife when the victim was
THOMPSON v. RUNNEL 13709
stabbed.” (Emphasis added.) Thompson’s petition concluded
by urging the California Supreme Court to “grant review to
clarify the application of the fruit of the poisonous tree doc-
trine in the Miranda context under the forthcoming opinion
by the U.S. Supreme Court, or transfer appellant’s case to the
[California] Court of Appeal with directions to apply the new
rule to be stated by the U.S. Supreme Court in its forthcoming
opinion.”
[1] Thompson thus fairly presented to the California
Supreme Court not only the substance of his claim — that
admission of his statements violated the Fifth Amendment —
but the very same argument that he now makes on federal
habeas. The only difference is that, as will appear, Thomp-
son’s position has now been adopted by the U.S. Supreme
Court.
[2] Despite the clarity of Thompson’s position in the Cali-
fornia Supreme Court, California nonetheless contends that
the emergence of new Supreme Court authority — Missouri
v. Seibert, 542 U.S. 600, 609 (2004) — in support of Thomp-
son’s position renders his claim unexhausted. According to
the state, once Seibert was decided and even though he
expressly asked the California Supreme Court to apply the
precedent from the pending Seibert case, Thompson was
required to file another petition or lose the right to come to
federal court on the issue on habeas.
[3] For this unlikely proposition California relies on Blair
v. California, 340 F.2d 741, 745 (9th Cir. 1965). In Blair, the
habeas petitioner argued to the California Supreme Court in
his 1961 petition for review that the deprivation of counsel on
direct appeal violated the federal Constitution, and the peti-
tion was denied. In 1963, the U.S. Supreme Court endowed
the right to counsel on appeal with federal constitutional pro-
tection for the first time in Douglas v. California, 372 U.S.
353, 364 (1963). Blair sought federal habeas relief in light of
Douglas. In response to Blair’s federal petition, California
13710 THOMPSON v. RUNNEL
argued then, as it does now, that the claim was unexhausted.
We agreed, stating,
The general issue as to Blair’s constitutional right to
counsel on his appeal to the California District Court
of Appeal was presented to that court and decided
adversely to him. But the particularized issue which
Blair now raises is whether that ruling is correct in
the light of the subsequently-decided Douglas v.
California.
Blair, 340 F.2d at 744.6
6
Subsequent decisions have narrowed Blair. Pope v. Harper rejected its
application to a situation similar to Thompson’s: The state courts in Pope
conducted a harmless error analysis without the benefit of Chapman v.
California, 386 U.S. 18 (1967), decided after the California Supreme
Court denied Harper’s petition for review. 407 F.2d 1303 (9th Cir. 1969).
The federal district court ordered Harper to return to state court to allow
for reconsideration in light of Chapman. Id. at 1304-05. We reversed, con-
cluding that Blair is inapplicable and re-exhaustion unnecessary when any
intervening change in federal law concerns only a “narrow issue controlled
by established federal principles.” Id. at 1305; see also Hudson v. Rushen,
686 F.2d 826, 830 (9th Cir. 1982) (“[E]xhaustion of remedies does not
require that the state have had the opportunity to pass on the claim under
the particular authorities advanced in the federal habeas court.”).
The Supreme Court, after Pope, characterized Blair as a narrow rule
that applies to the rare case where “an intervening change in federal law
cast the legal issue in a fundamentally different light . . . .” Picard v. Con-
nor, 404 U.S. 270, 276 (1971).
There is, indeed, some question whether the Blair rule remains viable
at all after Teague v. Lane, 489 U.S. 288 (1989). Butler v. Curry declared
that “[a]fter Teague, an intervening change in federal law that casts the
legal issue in a fundamentally different light is a ‘new rule’ that cannot be
applied on collateral review under any circumstances, regardless of
whether the petitioner has exhausted his state court remedies. In other
words, after Teague, [Blair] no longer serves any function.” 528 F.3d 624,
639 (9th Cir. 2008). This entombment of Blair after Teague is a bit of an
overstatement. As this case illustrates, there is a small set of cases in
which Teague is not triggered because the case is still pending on direct
appeal but a pertinent Supreme Court decision issues after the state courts
have completed their consideration of the case. Still, the number of such
instances is likely to be exceedingly small, indicating that the justification
for the Blair rule was indeed largely obviated by Teague.
THOMPSON v. RUNNEL 13711
[4] The requirement of re-exhaustion imposed in Blair was
expressly premised, in part, on the fact that the state “judg-
ment . . . became final prior to the decision in Douglas.” Id.
at 744. We reasoned that, in that situation, the state had an
interest in passing in the first instance on the question whether
Douglas should be applied retrospectively. Id.
[5] Thompson’s conviction, by contrast, did not become
final until after Seibert was decided, when the period for
Thompson to petition the U.S. Supreme Court for certiorari
elapsed. See Caspari v. Bohlen, 510 U.S. 383, 390 (1994); see
also Clay v. United States, 537 U.S. 522, 527 (2003) (adher-
ing to the “long-recognized, clear meaning” of finality articu-
lated in Caspari in deciding when a judgment of conviction
becomes final for purposes of a different provision of
AEDPA, 28 U.S.C. § 2255). More importantly, Thompson
expressly requested that the California Supreme Court apply
Seibert to his petition for review, either by delaying decision
or by remanding to the state Court of Appeals. So, unlike in
Blair, the state courts chose to forgo the opportunity to evalu-
ate a well-articulated position in light of a then-pending, soon-
to-be-decided U.S. Supreme Court case. The interests of com-
ity and judicial efficiency underlying the exhaustion require-
ment on federal habeas, see Granberry v. Greer, 481 U.S.
129, 134-35 (1987), are little served by requiring a petitioner
to re-exhaust his claims, already fully explained to the state
court, where that court elected to decide the issue without the
benefit of forthcoming authority that was brought to its atten-
tion.
Moreover, although Elstad did not require the adoption of
Thompson’s legal argument about the validity of confessions
where Miranda warnings are deliberately delayed, nothing in
Elstad precluded the California Supreme Court from accept-
ing that position, even before the U.S. Supreme Court opinion
in Seibert. The Missouri Supreme Court had already done so
in Seibert itself, 93 S.W.3d at 706-07, and the U.S. Supreme
Court opinions in Seibert made clear that the deliberate delay
13712 THOMPSON v. RUNNEL
rule is fully compatible with Elstad. See 542 U.S. at 614 (plu-
rality op.) (“[T]he argument [that Elstad approved a question-
first strategy] disfigures that case.”); id. at 620 (Kennedy, J.,
concurring) (“Elstad was correct in its reasoning and its
result.”).
[6] Accordingly, Seibert was not such a fundamentally
new rule that we should require reexhaustion of a legal posi-
tion already fully presented to the state court. Given all these
considerations, we decline to extend Blair’s rule to the cir-
cumstances of Thompson’s petition.
B.
[7] We turn to the merits of Thompson’s Miranda claim,
governed by the Supreme Court’s decision in Seibert.7 542
U.S. 600. The plurality and Justice Kennedy’s concurrence in
that case, read together, make clear that a deliberate two-step
interrogation strategy can violate Miranda. Specifically, when
police deliberately withhold warnings until after obtaining an
in-custody confession, the warnings are ineffective unless the
7
We note that California does not argue that Thompson’s reliance on
Seibert, decided after the California Supreme Court denied Thompson’s
petition for review but before the period to file a petition for certiorari
with the U.S. Supreme Court had expired, is precluded by a rule of non-
retroactivity under AEDPA. California’s briefing in this court stated, cit-
ing Justice Stevens’ opinion for the Court in Williams v. Taylor, 529 U.S.
362, 390 (2000), that the law to be applied under AEDPA is that “clearly
established at the time [Thompson’s] state court conviction became final,”
and counsel for the state agreed at oral argument that the state “more than
didn’t raise [a non-retroactivity objection to reliance on Seibert]; [it]
assumed its nonexistence.” The U.S. Supreme Court recently noted “some
uncertainty” surrounding whether clearly established law is assessed as of
the date the state judgment of conviction becomes final or as of the date
of the relevant state-court decision. Smith v. Spisak, 130 S. Ct. 676, 681
(2010) (citing Williams, 529 U.S. at 390 (Stevens, J., for the Court) and
id. at 412 (O’Connor, J., for the Court)). In Smith, however, the Court
declined to address this ambiguity because in that case, as in this one, the
parties had not raised the issue. See id. We follow the same course here.
THOMPSON v. RUNNEL 13713
impact of the prior unwarned confession has been dissipated.
Seibert, 542 U.S. at 622 (Kennedy, J., concurring); United
States v. Williams, 435 F.3d 1148, 1158 (9th Cir. 2006)
(“[Justice Kennedy’s] narrower test . . . represents Seibert;s
holding.”).8
[8] The California Court of Appeals, in the last reasoned
state court decision on Thompson’s Miranda claim, did not
apply the rule announced in Seibert. Rather, based on its read-
ing of Oregon v. Elstad, 470 U.S. 298 (1985), the state appel-
late court ruled that “so long as the earlier [unwarned
confession] was not involuntary due to police coercion, [a]
subsequent voluntary, warned statement is admissible. ” The
state court assumed, therefore, that deliberately delayed
Miranda warnings are always effective absent actual police
coercion. Because this “ ‘rule . . . contradicts the governing
law set forth [by the Supreme Court]’ ” in Seibert, see Rios
v. Garcia, 390 F.3d 1082, 1084 (9th Cir. 2004) (quoting Wil-
liams v. Taylor, 529 U.S. 362, 405-06 (2000)), the state
court’s decision was “contrary to . . . clearly established Fed-
eral law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). We therefore “review the
substantive constitutionality of the state custody de novo.”
Frantz v. Hazey, 533 F.3d 724, 737 (9th Cir. 2008) (en banc).
1.
[9] After Seibert, to determine whether post-confession
8
Williams held that, under the logic of Marks v. United States, 430 U.S.
188, 193 (1977), Justice Kennedy’s test is the holding of the Court in Sei-
bert. 435 F.3d at 1157-58. Accord United States v. Narvaez-Gomez, 489
F.3d 970, 973-74 (9th Cir. 2007). Because Justice Kennedy’s rule is the
holding of Seibert under the Marks rule, it is clearly established Supreme
Court law for purposes of 28 U.S.C. § 2254. See Panetti v. Quarterman,
551 U.S. 930, 948-49 (2007) (applying Marks to a splintered decision of
the Court and concluding that the narrowest rule “constitutes clearly estab-
lished law for purposes of § 2254” (internal quotation marks omitted)).
13714 THOMPSON v. RUNNEL
warnings are effective, courts must first assess whether the
two-step interrogation was a deliberate strategy:
[I]n determining whether the interrogator deliber-
ately withheld the Miranda warning, courts should
consider whether objective evidence and any avail-
able subjective evidence, such as an officer’s testi-
mony, support an inference that the two-step
interrogation procedure was used to undermine the
Miranda warning. . . . Once a law enforcement offi-
cer has detained a suspect and subjects him to inter-
rogation . . . there is rarely, if ever, a legitimate
reason to delay giving a Miranda warning until after
the suspect has confessed. Instead, the most plausi-
ble reason for the delay is an illegitimate one, which
is the interrogator’s desire to weaken the warning’s
effectiveness.
Williams, 435 F.3d at 1158-59. Neither the state court nor the
federal district court made a factual determination whether the
warnings given to Thompson were deliberately withheld,9 so
9
The district court did determine that there was no outright admission
by the officers that they were withholding warnings until Thompson con-
fessed and that there was no evidence of a departmental policy encourag-
ing that practice. On the basis of those determinations, the district court
ruled that the state courts did not unreasonably apply Seibert. Williams
made clear, however, that courts must consider circumstantial, as well as
direct, evidence that the withholding of warnings is deliberate, because
“ ‘the intent of the officer will rarely be . . . candidly admitted.’ ” 435 F.3d
at 1158-59 (quoting Seibert, 542 U.S. at 617 (plurality opinion)). “Once
a law enforcement officer has detained a suspect and subjects him to inter-
rogation . . . the most plausible reason for . . . delay is an illegitimate one,
which is the interrogator’s desire to weaken the warning’s effectiveness.”
Williams, 435 F.3d at 1159. It was legal error for the district court to con-
clude that the absence of departmental policy or outright admissions of
deliberate intent ends the inquiry under Seibert.
As the dissent notes, the district court also “found that Thompson ‘d[id]
not cite to the record or present any evidence in support of his assertion
THOMPSON v. RUNNEL 13715
we examine the extensive record before us on appeal for evi-
dence bearing on the question.10
[10] We begin from the state court finding, which Califor-
nia does not contest, that Thompson’s interrogation became
custodial before he admitted to any wrongdoing. By that point
in the interrogation, Thompson had been at the police station
for between six and seven hours. The officers had gone for-
ward with their investigation of Thompson’s involvement,
including talking to Bivins’ mother and Thompson’s father
about him, showing his photo to neighbors, talking to his pro-
bation officer, and searching his home.
[11] By the time of the interrogation, the officers regarded
Thompson as the prime suspect. The officers then employed
sophisticated interrogation techniques over the course of more
than an hour in an admittedly purposeful attempt to “keep the
interview going” and obtain incriminating statements.11
that the inspectors in this case deliberately withheld their Miranda advise-
ment until [Thompson] had incriminated himself.’ ” Dissent at 13733.
This conclusion by the district court constitutes an account of the course
of proceedings in that court, but it is not a factual determination regarding
whether the warnings were deliberately withheld. Moreover, if viewed as
a finding of fact, the district court’s statement regarding the state of the
record is clearly erroneous. As summarized in the text, there was ample
evidence indicating that the officers deliberately withheld warnings until
Thompson confessed, although that evidence does not include a direct
admission by the officers. Viewed in this light, the district court’s state-
ment that there was not “any evidence” reflects the same underlying legal
error just discussed — namely, the understanding that there must be a pol-
icy or an outright admission to meet Seibert’s deliberate intent standard.
10
The record includes, inter alia, complete video and audio recordings
of the interrogation, confession, and reenactment and testimony from the
state court’s evidentiary hearing describing the warnings administered to
Thompson off-camera on the morning of June 23.
11
On direct examination at trial, Inspector Conaty and his attorney
engaged in the following colloquy:
13716 THOMPSON v. RUNNEL
[12] Even after Thompson began to incriminate himself in
the face of these techniques, the officers still did not adminis-
ter warnings. Rather, they did so only after Thompson admit-
ted to slitting Bivins’ throat.12
Q: And why did you, during the course of that initial interview
with Mr. Thompson, lie to him?
A: Telling an interview subject lies, telling them about circum-
stances may not in fact be true [are] accepted interrogative tech-
niques, it keeps the interview going.
Guilty persons will often attempt to explain these circumstances
which in itself furthers the interview.
****
It’s human nature to, when admitting to something that is
believed to be a reprehensible act, to minimize one’s conduct. If
I offer up that opportunity in the very beginning, oftentimes the
interview subject will immediately — lack of a better way to
describe it — bite on that and will expound, will continue to min-
imize his own conduct, attempting to place the responsibility for
whatever occurred on other persons. In and of itself, it just fur-
thers the interview.
Q: Keeps the interview going?
A: Yes. Actually, in a lot of cases, it will — even in an attempt-
ing to minimize the conduct will have the defendant place them-
selves at a location when, in fact, we have no evidence
necessarily independently to place them there.
12
The entire interview took place in an interrogation room at the station
and was videotaped. So the delay in administering Miranda was not attrib-
utable to the need to accommodate the demands of a unique situation in
the field. Cf. Elstad, 470 U.S. at 315-16 (suggesting that officers might
have refrained from giving warnings during a preliminary interview in the
suspect’s living room to avoid causing alarm to the suspect’s mother).
Nor is this in any other respect the exceptional case in which a “legiti-
mate reason” justified withholding warnings until after obtaining a confes-
sion. Williams, 435 F.3d at 1159. In its brief before us, California suggests
that, as in Elstad, 470 U.S. at 315-16, the delay here may be explained by
the interrogating officers’ uncertainty over whether the interrogation had
become custodial. (The officers themselves did not testify to any such
THOMPSON v. RUNNEL 13717
[13] After giving the warnings, the officers used Thomp-
son’s prior admissions to elicit further detail and hold him to
his story: When Thompson claimed he slit Bivins’ throat to
prevent her from suffering, Conaty corrected him based on a
pre-Miranda warning admission: “That, and you didn’t want
her to necessarily survive and tell on you, isn’t that right?”
Additionally, Officer Giacomelli repeatedly referred back to
Thompson’s prewarning account in framing postwarning
questions.
[14] The only reasonable inference from this interrogation
sequence is that the officers deliberately withheld Miranda
warnings until after obtaining a confession.
2.
Seibert directs that we proceed to determine whether the
deliberately delayed warnings administered to Thompson
were nonetheless effective in apprising him of his rights. 542
U.S. at 622 (Kennedy, J., concurring); see Williams, 435 F.3d
explanation.) But, unlike in Elstad, the same interrogation circumstances
that prevailed at the time the state court determined Miranda warnings
should have been given persisted at the time they actually were given: the
location was the same, Thompson had been at the station for many hours,
he had not been handcuffed or formally arrested, and the same officers
were interviewing him. And although the warnings followed shortly after
Thompson gave his most detailed account of the crime, Thompson by that
point had already made several highly incriminating statements that did
not trigger any warnings. Thus, at the time warnings finally were given,
there was no reason to think Thompson was any more or less free to leave
than he was before. See United States v. Beraun-Panez, 812 F.2d 578, 580
(9th Cir. 1987) (holding that the determination of custody turns on
whether “ ‘a reasonable person in [the] circumstances would conclude . . .
that he or she would not be free to leave’ ” (quoting United States v. Hud-
gens, 798 F.2d 1234, 1236 (9th Cir. 1986) (alteration omitted)), modified
by 830 F.2d 127 (9th Cir. 1987). Any uncertainty regarding whether
Thompson was in custody would not explain the delay in complying with
Miranda.
13718 THOMPSON v. RUNNEL
at 1160. Williams summarized the factors relevant to this
determination:
(1) the completeness and detail of the prewarning
interrogation, (2) the overlapping content of the two
rounds of interrogation, (3) the timing and circum-
stances of both interrogations, (4) the continuity of
police personnel, (5) the extent to which the interro-
gator’s questions treated the second round of interro-
gation as continuous with the first and (6) whether
any curative measures were taken.
Id.; see also Seibert, 542 U.S. at 615 (plurality op.); id. at 622
(Kennedy, J., concurring).
[15] The failure of law enforcement to take any curative
measures may be dispositive of the inquiry into the effective-
ness of delayed warnings. Justice Kennedy adopted that rule
in his concurring opinion in Seibert: “When an interrogator
uses this deliberate, two-step strategy, predicated upon violat-
ing Miranda during an extended interview, postwarning state-
ments that are related to the substance of prewarning
statements must be excluded absent specific, curative steps.”13
Seibert, 542 U.S. at 621 (Kennedy, J., concurring); see also
United States v. Reyes-Bosque, 596 F.3d 1017, 1031 (9th Cir.
2010) (so characterizing the holding of Seibert), petition for
cert. filed, (Jun. 28, 2010) (No. 10-5140) and petition for cert.
filed, (Jul. 28, 2010) (No. 10-5718). And nothing in the plu-
rality opinion suggested that, once it is determined that police
have employed that deliberate tactic, a post-Miranda confes-
sion should be admitted absent curative measures.14 Indeed,
13
Justice Kennedy suggested in Seibert that “a substantial break in time
and circumstances” may qualify as a curative measure that restores the
effectiveness of a deliberately delayed warning, if the break is “designed
to ensure that a reasonable person in the suspect’s situation would under-
stand the import and effect of the Miranda warning.” Id. at 622 (Kennedy,
J., concurring).
14
Because the plurality opinion did not hinge on a finding of deliberate
withholding of warnings, the Justices in the plurality had no occasion to
address the question.
THOMPSON v. RUNNEL 13719
Justice Breyer, who joined the plurality opinion in full, was
of the view that the fruits of a deliberate two-step strategy
should always be suppressed. Seibert, 542 U.S. at 617.
We need not decide in this case the precise relationship
among the Williams factors. Here, every factor weighs in
favor of suppression of Thompson’s first postwarning confes-
sion.
[16] The prewarning interrogation was highly confronta-
tional and detailed; the two sessions took place in the same
small interrogation room, back-to-back, with no break at all;
the police personnel were exactly the same; and, as described
above, the officers’ questioning treated the two sessions as
continuous and drew, in one instance, on Thompson’s pre-
Miranda statement during the second session to ensure that
the earlier inculpatory material was reiterated after the requi-
site warnings were given. And the police took no curative
measures whatsoever. The post-confession Miranda warnings
could not have been effective in meaningfully apprising
Thompson of his rights and enabling him to invoke them.
[17] The second set of warnings, administered the next
morning at the jail, before the videotaped reenactment of the
crime, presents a closer question. Still, after careful consider-
ation, we are convinced that all of the factors continue to
point to the conclusion that it too was ineffective. The com-
pleteness and detail of the prewarning interrogation remained
unchanged from the time of the first, ineffective, warnings. If
anything, Thompson would have perceived the invocation of
his rights as even more futile the next morning, having in the
interim confessed to murder a second time and shown the
inspectors — in the early morning hours after the completion
of the late-night interrogation at the station — the place where
he tried to dispose of the evidence. In addition, there was
almost complete overlap in content between Thompson’s first
two confessions and the reenactment he was to conduct at
Bivins’ house later that day. Indeed, the inspectors consis-
13720 THOMPSON v. RUNNEL
tently treated the reenactment as continuous with the previous
night’s interrogation, making clear to Thompson before
allowing him to go to sleep the night before that he would
need to participate in the reenactment the next day15 and tell-
ing him immediately before the reenactment, “[A]ll we’re
gonna do is what we talked about yesterday, is go through
what happened.”
[18] The timing and circumstances of the second set of
warnings, particularly the break in time and change in loca-
tion, were somewhat more conducive to a knowing and intel-
ligent waiver than in the case of the first warnings. But on
balance, this factor does not support the conclusion that the
warnings were effective either. At the conclusion of the previ-
ous night’s interrogation at around 2:00 a.m., Thompson
accompanied the police to search for the murder weapon and
his bloodied clothing. Afterwards, still distraught and suicidal,
he spent the rest of the night shackled to the floor of a suicide-
watch room at the main detention facility in Martinez.
Stripped to his underwear and deprived of blankets or a bed,
Thompson was too cold to sleep.
It was there, at the main detention facility, that Inspectors
Conaty and Giacomelli administered the second set of warn-
ings the next morning. Thompson thus spent the night “iso-
lated in an ‘unfamiliar,’ ‘police-dominated atmosphere,’
Miranda, 384 U.S.[ at 456-57], where his captors ‘appear[ed]
to control [his] fate,’ Illinois v. Perkins, 496 U.S. 292, 297
[(1990)].” Maryland v. Shatzer, 130 S. Ct. 1213, 1220-21
(2010). Under the circumstances, the short break in time and
minor change in location did not provide an opportunity for
“further deliberation in familiar surroundings,” see id. at
1221, and do not weigh in favor of finding the warnings effec-
tive.
15
Inspector Conaty testified that he and Thompson “reached an agree-
ment” “during the course of the interview” and prior to Thompson’s trans-
fer to the main detention facility for the night that Thompson would
participate in the reenactment.
THOMPSON v. RUNNEL 13721
[19] Moreover, there was complete continuity of police
personnel during the first confession, the first warning, the
second confession, and the second warning. Just as was so the
night before, Thompson was alone with Inspectors Conaty
and Giacomelli in a jailhouse room when he received these
warnings. Faced with the same two people to whom he had
repeatedly confessed, Thompson would have found absurd the
suggestion that he retained a meaningful right to “remain
silent.”
[20] Finally, the inspectors failed once more to take any
curative measures at all. Particularly after Thompson had
already incriminated himself in several unwarned or improp-
erly warned interactions with the inspectors, it was incumbent
upon them to give “an additional warning that explain[ed] the
likely inadmissibility of the prewarning custodial state-
ment[s].” Seibert, 542 U.S. at 622 (Kennedy, J., concurring).
[21] In light of all these circumstances, we have little diffi-
culty concluding on de novo review that the officers’ deliber-
ate two-step interrogation strategy rendered ineffective the
Miranda warnings administered to Thompson.16 The admis-
sion of Thompson’s inculpatory statements at trial was revers-
ible error unless harmless.
C.
[22] Because the “[e]rroneous admission of a confession
does not constitute structural error,” Williams, 435 F.3d at
1162, such admission is harmless on collateral review unless
it had a substantial and injurious effect or influence in deter-
mining the jury’s verdict. Brecht v. Abrahamson, 507 U.S.
16
We do not reach Thompson’s alternative argument that his waiver of
his right to remain silent was not voluntary because it was the product of
police overreaching. See Seibert, 542 U.S. at 617 n.8 (“Because we find
that the warnings were inadequate, there is no need to assess the actual
voluntariness of the statement.”).
13722 THOMPSON v. RUNNEL
619, 637-38 (1993). A confession, however, is ordinarily the
most persuasive evidence that can be admitted against a crim-
inal defendant. See Arizona v. Fulminante, 499 U.S. 279, 296
(1991). When a jury considers a full confession that “dis-
closes the motive for and means of the crime,” there is a high
probability that the jury will rely on that evidence alone in
reaching its decision. Fulminante, 499 U.S. at 296. Admission
of such confessions will seldom be harmless. Williams, 435
F.3d at 1162.
[23] Here, Thompson’s confession was the heart of the
prosecution’s case. The jury watched video recordings of
Thompson’s thorough confession and of his vivid reenact-
ment of the brutal crime. While other evidence at trial sug-
gested that Thompson had a motive to kill Bivins, no other
evidence identified him as the killer. Without the confession,
the prosecution had at best a weak circumstantial case, based
on motive and opportunity. The erroneous admission of
Thompson’s inculpatory statements was clearly prejudicial.
III.
[24] In affirming the admission of Thompson’s confes-
sions, the California Court of Appeals applied a rule contrary
to that announced by the Supreme Court in Missouri v. Sei-
bert, 542 U.S. 600 (2004). On de novo review, we conclude
that police officers’ deliberate withholding of Miranda warn-
ings until after Thompson confessed rendered the belated
warnings ineffective. Because the introduction at trial of
Thompson’s confession was both constitutionally infirm and
highly prejudicial, we reverse the district court’s denial of
Thompson’s petition for a writ of habeas corpus.
REVERSED.
THOMPSON v. RUNNEL 13723
IKUTA, Circuit Judge, dissenting:
Petitioner Antwion Thompson voluntarily confessed to
murdering his girlfriend. He confessed at the police station the
day the murder was committed, and again the next day when
he reenacted the crime on videotape for police at the victim’s
house. On these two occasions, Thompson was advised of his
Miranda rights and voluntarily waived those rights. Though
these warned confessions were preceded by a period of
unwarned questioning, there is no legal basis to exclude them
from the jury’s consideration here. See Missouri v. Seibert,
542 U.S. 600 (2004); Oregon v. Elstad, 470 U.S. 298 (1985).
I respectfully dissent from the majority’s decision to grant
Thompson’s habeas writ.
I
On federal habeas review, the facts found by the state court
are presumed to be correct, unless the petitioner can overcome
the presumption of correctness by clear and convincing evi-
dence. 28 U.S.C. § 2254(e)(1) (2006). Here, Thompson does
not challenge the state court’s factual findings, and therefore
we must adopt those findings as true in reviewing Thomp-
son’s writ. Despite this rule, the majority opinion sets forth an
account of the facts in a manner that favors Thompson’s
appeal. Accordingly, it is necessary to recount some of the
state court’s key factual findings below.
Thompson agreed to go with inspectors to the police station
to discuss his role in finding the victim’s body. People v.
Thompson, No. A099879, slip op. at 3 (Cal. Ct. App. Feb. 3,
2004). Once there, he waited approximately six hours in the
police break-room before being questioned. Id. at 3-4.
Thompson was neither handcuffed nor pat-searched during
this period. Id. at 3. The break room had a couch and a televi-
sion. Id. The door to the break room was open. Id. at 8.
Thompson was told to relax and watch television, which he
did. Id. at 3. Thompson spent most of the six hours sleeping
13724 THOMPSON v. RUNNEL
on the couch. Id. at 3-4. He never asked to leave, said he was
cold, asked for food or water, or made other requests. Id. at
3-4, 9.
When the police came to get Thompson, they apologized
for keeping him waiting and asked if they could speak with
him in another room. Id. at 4. Thompson agreed and said he
was feeling “ ‘okay.’ ” Id. He did not indicate that he wanted
to leave or that he did not want to speak with police. Id. He
was not handcuffed during questioning. Id. His questioners
were not in uniform and did not have guns. Id. Though the
interview room was small and the door was closed, it was not
locked. Id. When Thompson said the room was cold, the
inspector turned on the heater. Id.
At the outset of questioning, Thompson complained of a
headache. Id. The inspector asked him, “ ‘Do you feel like
doing—can we do this now or would you rather do this
another time? . . . You can go if you don’t want to do it
now.’ ” Id. Thompson replied, “ ‘We can go through it.’ ” Id.
The inspectors then questioned Thompson for an extended
period without providing Miranda warnings. Id. Over the
course of questioning, Thompson admitted that he had been
at the victim’s house immediately before he asked his father
to take him there and that he had stabbed the victim by acci-
dent during an argument in which the victim came at him
while he was holding a knife. Id. Subsequently, inspectors
informed Thompson of his Miranda rights, and Thompson
repeated his earlier admissions. Id. According to the state
court, “[t]he videotape [of the interview] indicates that the
inspectors were careful, polite, and soft-spoken, not overbear-
ing. Nothing on the videotape indicates that Thompson did
not understand his rights or was reluctant to speak to the
inspectors.” Id. at 14.
At about 2:00 a.m., Thompson led inspectors to locations
where he had disposed of the murder weapon and burned his
clothes. Id. at 4. Thompson also agreed to participate in a vid-
THOMPSON v. RUNNEL 13725
eotaped reenactment of the victim’s death. Id. “Although
Thompson spent a cold and uncomfortable night in the county
jail following the interrogation, he was fed and again advised
of his Miranda rights before doing the reenactment.” Id. at 15.
The reenactment commenced at about 12:47 p.m., the day
after the murder. Id. at 4.
II
Because Thompson filed his federal habeas petition after
April 24, 1996, his petition is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
§ 2254 (2006). See Woodford v. Garceau, 538 U.S. 202, 204
(2003); Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.
2004). Under AEDPA, a federal court must deny habeas relief
with respect to any claim adjudicated on the merits in a state
court proceeding unless the proceeding “resulted in a decision
that was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States” or “resulted in a decision
that was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceed-
ing.” § 2254(d)(1)-(2). “Section 2254(d)(1)’s ‘clearly estab-
lished’ phrase ‘refers to the holdings, as opposed to the dicta,
of th[e] Court’s decisions as of the time of the relevant state-
court decision.’ ” Lockyer v. Andrade, 538 U.S. 63, 71 (2003)
(quoting Williams v. Taylor, 529 U.S. 362, 412 (2000);
accord Carey v. Musladin, 549 U.S. 70, 74 (2006); Yarbor-
ough v. Alvarado, 541 U.S. 652, 660-61 (2004). “In other
words, ‘clearly established Federal law’ under § 2254(d)(1) is
the governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its deci-
sion.” Andrade, 538 U.S. at 71-72.
The relevant state court determination for purposes of
AEDPA review is the last reasoned state court decision. See
Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); Riggs v.
Fairman, 399 F.3d 1179, 1182 (9th Cir. 2005). Here, the Feb-
13726 THOMPSON v. RUNNEL
ruary 3, 2004 decision of the state appellate court is the last
reasoned adjudication of Thompson’s Miranda claim. At that
time, the Supreme Court had not yet decided Missouri v. Sei-
bert, 542 U.S. 600 (2004). Accordingly, under AEDPA, the
clearly established Supreme Court precedent applicable to
Thompson’s claim is Oregon v. Elstad, 470 U.S. 298 (1985).
The majority chooses to ignore this principle on the ground
that, on appeal, the government did not argue that Seibert was
inapplicable under AEDPA.1 Maj. op. at 13712 n.7. But this
does not change § 2254(d)(1)’s statutory mandate that the fed-
eral court cannot grant habeas relief unless the state court’s
decision is contrary to or an unreasonable application of
clearly established Supreme Court precedent, which the
Supreme Court defines as “the governing legal principle or
principles set forth by the Supreme Court at the time the state
court renders its decision.” Andrade, 538 U.S. at 71-72
(emphasis added); see also Murdoch v. Castro, 609 F.3d 983,
990 (9th Cir. 2010) (en banc) (“The Supreme Court has
restricted ‘clearly established Federal law’ under § 2254(d)(1)
to ‘the holdings, as opposed to the dicta, of [the Supreme]
Court’s decisions as of the time of the relevant state-court
decision.’ ” (emphasis added) (quoting Musladin, 549 U.S. at
74) (internal quotation marks omitted)). Although we may
deny a petitioner’s writ in light of Supreme Court precedent
1
Instead of arguing that Seibert was not “clearly established” Supreme
Court precedent relevant to Thompson’s claim under AEDPA, the govern-
ment argued that Thompson failed to exhaust his claim that the state
court’s decision was inconsistent with Seibert. The majority offers a rather
lengthy discussion on whether Thompson’s Seibert argument was properly
exhausted under Blair v. California, 340 F.2d 741, 745 (9th Cir. 1965).
Maj. op. at 13709-12 & 13710 n.6. My analysis of the issue is much sim-
pler: Thompson exhausted his claim because he fairly presented the issue
of the admissibility of his postwarned statements to the state’s highest
court, and even cited to the Supreme Court’s then-pending decision in Sei-
bert in his petition for review before the state supreme court. In my view,
this was sufficient to satisfy the exhaustion requirement. See Johnson v.
Zenon, 88 F.3d 828, 829 (9th Cir. 1996).
THOMPSON v. RUNNEL 13727
decided after the relevant date, see Smith v. Spisak, 130 S. Ct.
676, 680-81 (2010); Danforth v. Minnesota, 552 U.S. 264,
288, 290-91 (2008), the Supreme Court has never held that a
reviewing court may ignore the statutory command of
§ 2254(d) and grant habeas relief when the state court’s deci-
sion was consistent with then-applicable Supreme Court pre-
cedent.
Here, Elstad, rather than Seibert, is the clearly established
Supreme Court precedent under AEDPA, and (as described
below) the state court’s decision was not contrary to or an
unreasonable application of Elstad. Therefore, the majority
errs in applying Seibert as “clearly established Federal law”
relevant to our AEDPA review of Thompson’s claim, in con-
sequently holding that the state court’s decision was contrary
to Seibert, and in thereafter reviewing the merits of Thomp-
son’s petition de novo.
III
Even under de novo review, however, the state court’s
denial of Thompson’s Miranda claim did not violate Thomp-
son’s constitutional rights under Seibert or Elstad, as review
of those two cases demonstrates.
A
In Elstad, a suspect made incriminating statements to a
police officer at his home without first receiving Miranda
warnings. 470 U.S. at 300-01. Officers thereafter took the sus-
pect to the county sheriff’s office, read him his Miranda
rights, and obtained a confession expanding on his earlier
inculpatory statements. Id. at 301-02. In court, the suspect
argued that the postwarning statement should be suppressed
because it was likely induced by the unwarned statement. Id.
at 302. The Supreme Court granted certiorari to “consider the
question whether the Self-Incrimination Clause of the Fifth
Amendment requires the suppression of a confession, made
13728 THOMPSON v. RUNNEL
after proper Miranda warnings and a valid waiver of rights,
solely because the police had obtained an earlier voluntary but
unwarned admission from the defendant.” Id. at 303.
The Court determined that, in such cases, suppression was
not required. It explained that, “far from prohibited by the
Constitution, admissions of guilt by wrongdoers, if not
coerced, are inherently desirable.” Id. at 305 (quoting United
States v. Washington, 431 U.S. 181, 187 (1977)). Because the
Fifth Amendment “prohibits use by the prosecution in its case
in chief only of compelled testimony,” Miranda does not
require that subsequent statements given after unwarned state-
ments be “discarded as inherently tainted.” Id. at 306-07.
Instead, the Court held that “the admissibility of any subse-
quent statement should turn . . . solely on whether it is know-
ingly and voluntarily made.” Id. at 309.
In so ruling, the Court rejected the state court’s reasoning
that, “[a]fter an accused has once let the cat out of the bag by
confessing, no matter what the inducement, he is never there-
after free of the psychological and practical disadvantages of
having confessed.” Id. at 311 (internal quotation marks omit-
ted) (quoting United States v. Bayer, 331 U.S. 532, 540
(1947)). Because there is little justification for “permitting the
highly probative evidence of a voluntary confession to be irre-
trievably lost to the factfinder,” id. at 312, the Court ruled that
a “subsequent administration of Miranda warnings to a sus-
pect who has given a voluntary but unwarned statement ordi-
narily should suffice to remove the conditions that precluded
admission of the earlier statement,” id. at 314. In other words,
“there is no warrant for presuming coercive effect where the
suspect’s initial inculpatory statement, though technically in
violation of Miranda, was voluntary. The relevant inquiry is
whether, in fact, the second statement was also voluntarily
made.” Id. at 318 (footnote omitted).
The Supreme Court carved out an exception to Elstad’s
general rule in Seibert. There, the Court considered “a police
THOMPSON v. RUNNEL 13729
protocol for custodial interrogation that call[ed] for giving no
warnings of the rights to silence and counsel until interroga-
tion has produced a confession.” 542 U.S. at 604. In Seibert,
police arrested a woman suspected of murdering a mentally ill
teenager living in her home. See id. Before providing her with
Miranda warnings, an officer aggressively questioned her for
thirty to forty minutes. Id. at 604-05. After she confessed, the
police gave her Miranda warnings, confronted her with her
unwarned statements, and extracted a second confession. Id.
at 605. At the suppression hearing, the police officer “testified
that he made a ‘conscious decision’ to withhold Miranda
warnings, thus resorting to an interrogation technique he had
been taught: question first, then give the warnings, and then
repeat the question ‘until I get the answer that she’s already
provided once.’ ” Id. at 605-06.
In a plurality and concurring opinion, five justices held that
this situation was distinguishable from Elstad. See id. at
614-17 (plurality opinion); id. at 620-21 (Kennedy, J., concur-
ring in the judgment). As reasoned in Justice Kennedy’s con-
trolling concurrence,2 although Elstad “was correct in its
reasoning and its result” and “reflects a balanced and prag-
matic approach to enforcement of the Miranda warning,” the
use of a “two-step questioning technique based on a deliberate
violation of Miranda“ raises a different issue than that consid-
ered in Elstad. Id. at 620. Because such a deliberate two-step
technique “distorts the meaning of Miranda and furthers no
legitimate countervailing interest,” Justice Kennedy reasoned
that “[t]he Miranda rule would be frustrated were [the courts]
to allow police to undermine its meaning and effect” by
employing such a strategy. Id. at 621. Justice Kennedy con-
cluded that “[w]hen an interrogator uses [a] deliberate, two-
step strategy, predicated upon violating Miranda during an
2
In United States v. Williams, 435 F.3d 1148 (9th Cir. 2006), we inter-
preted the holding in Seibert to be the narrower one reached by Justice
Kennedy. Id. at 1157-58 (citing Marks v. United States, 430 U.S. 188, 193
(1977)).
13730 THOMPSON v. RUNNEL
extended interview, postwarning statements that are related to
the substance of prewarning statements must be excluded
absent specific, curative steps.” Id.
Under Seibert, a deliberate “two-step strategy” is the imple-
mentation of an intentional procedure for questioning an
unwarned suspect, obtaining incriminating statements, and
then giving the suspect Miranda warnings before obtaining
the same or related incriminating statements. See id. at
620-21. In United States v. Williams, 435 F.3d 1148 (9th Cir.
2006), we elaborated on what constitutes a deliberate strategy
under Seibert. Id. at 1158. We held that, “in determining
whether the interrogator deliberately withheld the Miranda
warning, courts should consider whether objective evidence
and any available subjective evidence . . . support an infer-
ence that the two-step interrogation procedure was used to
undermine the Miranda warning.” Id. Objective evidence may
include “the timing, setting and completeness of the prewarn-
ing interrogation, the continuity of police personnel and the
overlapping content of the pre- and postwarning statements,”
id. at 1159, while subjective evidence may include an offi-
cer’s testimony that the two-step method was customary
under police protocol, id. at 1158. In Seibert, for example, the
police interrogation strategy was deliberate because the sus-
pect was under arrest at the time the unwarned statements
were made (and therefore it was clear that the suspect should
have received Miranda warnings at the start of questioning),
see 542 U.S. at 604-05 (plurality opinion), and the interrogat-
ing officer testified that it was police protocol to “question
first, then give the warnings, and then repeat the question”
until the same answer is given, id. at 606; id. at 620-21 (Ken-
nedy, J., concurring in the judgment).
In Seibert, Justice Kennedy also provided more explanation
of the “specific, curative steps” that eliminate the need to
exclude postwarning statements that are the product of the
police’s deliberate, two-step strategy. Id. at 621 (Kennedy, J.,
concurring in the judgment). Such steps must be “taken before
THOMPSON v. RUNNEL 13731
the postwarning statement is made,” and be “designed to
ensure that a reasonable person in the suspect’s situation
would understand the import and effect of the Miranda warn-
ing and of the Miranda waiver.” Id. at 622. Sufficient curative
measures include “a substantial break in time and circum-
stances between the prewarning statement and the Miranda
warning” or “an additional warning that explains the likely
inadmissibility of the prewarning custodial statement.” Id.
Because a court must find deliberateness and the absence
of curative measures before excluding postwarning state-
ments, Seibert narrowly operates to suppress a postwarning
confession “only in the infrequent case.” Id. But even if Sei-
bert is inapplicable, the Supreme Court has advised that “[t]he
admissibility of postwarning statements should continue to be
governed by the principles of Elstad,” and that the court must
therefore proceed to analyzing under Elstad whether the post-
warning confession was involuntary or induced by police
coercion. Id.
B
Even under de novo review, Thompson’s postwarning con-
fession and video reenactment were admissible under both
Seibert and Elstad, because the police were not deliberate in
employing a two-step interrogation strategy, the video reen-
actment followed adequate curative measures, and the post-
warning statements were voluntary and not induced by police
coercion.
As noted above, Seibert applies only if the police engaged
in a deliberate two-step interrogation strategy. Id. On federal
habeas review, the district court found that Thompson’s post-
warning confession was not the product of a deliberate two-
step strategy, thereby ending the Seibert analysis. The district
court noted that Thompson was not under arrest at the time of
the initial questioning, and there was no testimony that the
inspectors deliberately withheld Miranda warnings until after
13732 THOMPSON v. RUNNEL
Thompson confessed. Rather, the district court found that
Thompson did “not cite to the record or present any evidence
in support of his assertion that the inspectors in this case
deliberately withheld their Miranda advisement until [Thomp-
son] had incriminated himself,” and that there was “no evi-
dence in the record concerning an official police policy of
deliberately withholding Miranda warnings until a suspect
ha[d] confessed.” Dct. op. at 21.
It is well established that the issue whether police were act-
ing deliberately under Seibert “is appropriately reviewed as a
factual finding for clear error.” See United States v. Narvaez-
Gomez, 489 F.3d 970, 974 (9th Cir. 2007). To overturn a fac-
tual determination for clear error, “a decision must strike us
more than just maybe or probably wrong; it must . . . strike
us as wrong with the force of a five-week-old, unrefrigerated
dead fish.” United States v. Bussell, 504 F.3d 956, 962 (9th
Cir. 2007) (alteration in original) (internal quotation marks
omitted).
Instead of properly analyzing the district court’s deliberate-
ness finding under this stringent standard, the majority effec-
tively overrules the district court’s factual finding and
replaces it with its own appellate factual finding. The majority
begins by inexplicably asserting that the district court never
made a deliberateness finding at all. Maj. op. at 13714-15
(“[T]he federal district court [never] made a factual determi-
nation whether the warnings given to Thompson were deliber-
ately withheld . . . .”). Such assertion is belied by the district
court’s decision, which engages in a rather lengthy discussion
on deliberateness, setting forth the relevant standard, evaluat-
ing the circumstances of Thompson’s claim within that stan-
dard, and ultimately determining that deliberateness was not
present. See Dct. op. at 20-22 & n.4. Indeed, the district court
necessarily had to make a factual finding on deliberateness;
otherwise, it could not have resolved Thompson’s Seibert
claim.
THOMPSON v. RUNNEL 13733
Perhaps recognizing that it is on shaky ground, the majority
adds in a footnote that the district court’s factual finding was
actually a legal error. According to the majority, the district
court failed to weigh properly the circumstantial evidence
suggesting that the police’s two-step interrogation method
was deliberate. Maj. op. at 13714-15 n.9. The majority con-
cludes that it was “legal error for the district court to conclude
that the absence of departmental policy or outright admissions
of deliberate intent ends the inquiry under Seibert.” Maj. op.
at 13714-15 n.9.
This reasoning is wrong both as a matter of law and fact.
First, it is clear from its decision that the district court did not
make the legal error the majority attributes to it. The decision
shows that the district court was aware of the objective and
subjective components of the deliberateness inquiry, even
quoting the relevant portion of Williams stating that it
“ ‘should consider any objective evidence or available expres-
sions of subjective intent suggesting that the officer acted
deliberately to undermine and obscure the warning’s meaning
and effect.’ ” Dct. op. at 20 (quoting Williams, 435 F.3d at
1160). Given this proper recitation of the governing law, the
majority is wrong to state that the district court applied the
improper legal standard to Thompson’s claim.
Second, it is clear that the district court made a factual find-
ing on the deliberateness issue: it found that Thompson “d[id]
not cite to the record or present any evidence in support of his
assertion that the inspectors in this case deliberately withheld
their Miranda advisement until [Thompson] had incriminated
himself.” Dct. op. at 21. The majority’s claim that this state-
ment is not a factual finding but “an account of the course of
proceedings in that court” is untenable: the majority may dis-
agree with the district court’s decision not to weigh the cir-
cumstantial evidence more heavily, but there is no reasonable
basis for denying that the district court made a factual finding.
When a district court rules that there is no evidence in the
13734 THOMPSON v. RUNNEL
record on a specific point, it is making a factual finding, not
describing the state of the record.
Because it is readily apparent that the district court evalu-
ated the evidence in the record and made a finding of fact, the
majority tries yet a third theory, claiming that in any event,
the district court’s finding was clearly erroneous. The major-
ity bases this conclusion on the inferences it draws from the
same facts considered by the district court. While acknowl-
edging that there is no direct evidence of a deliberate policy,
the majority puts its own gloss on the police’s interrogation
strategy and declares that “[t]he only reasonable inference
from [the] interrogation sequence is that the officers deliber-
ately withheld Miranda warnings until after obtaining a con-
fession.” Maj. op. at 13717. This type of appellate fact finding
is an impermissible extension of our judicial role. See, e.g.,
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 497
(1991) (observing that a federal appellate court “lack[s] the
factfinding and record-developing capabilities of a federal
district court”). If the district court committed a legal error in
its deliberateness analysis, which it did not, the majority
should remand to the district court to reconsider the factual
inquiry under the proper legal standard. It should not and can-
not proceed to resolve the disputed factual issue itself. See id.
In sum, the majority prefers the inferences it draws from
the evidence to those drawn by the district court, and there-
fore concludes that either the district court made a legal error
or its fact finding was clearly erroneous. This is far from the
proper standard for overturning a factual determination for
clear error. See Bussell, 504 F.3d at 962. Reviewing the mat-
ter properly for clear error, there is nothing to suggest that the
district court clearly erred in finding that Thompson failed to
prove that the inspectors deliberately withheld the Miranda
warning until after Thompson incriminated himself. As such,
Seibert does not apply to Thompson’s claim, see Seibert, 542
U.S. at 622 (Kennedy, J., concurring in the judgment), and the
majority errs in concluding otherwise.
THOMPSON v. RUNNEL 13735
Furthermore, as the district court and every state court to
have considered the issue has ruled, Thompson’s Miranda
waiver and postwarning statements were voluntary and
admissible under Elstad. See, e.g., United States v. Polanco,
93 F.3d 555, 560 (9th Cir. 1996) (quoting Elstad, 470 U.S. at
309). “Voluntariness is a totality of the circumstances inquiry
that assesses both the characteristics of the accused and the
details of the interrogation.” Williams, 435 F.3d at 1153 n.5
(internal quotation marks omitted). As the state court’s
description of the facts indicates, supra pages 13723-25, the
overall environment of Thompson’s interrogation was rela-
tively unintimidating and nonoppressive, Thompson’s ques-
tioners did not make promises or threats in exchange for his
confession, and it is undisputed that the questioners eventu-
ally informed Thompson of his Miranda rights and that
Thompson waived those rights and continued to make incrim-
inating statements. Thus, under Elstad or Seibert, there is no
legal basis to exclude Thompson’s postwarning confession.
C
Even assuming that the district court’s deliberateness find-
ing was clearly erroneous, and that we could find deliberate-
ness for the first time on appeal, Seibert would still not apply
to exclude Thompson’s next-day video reenactment of the
crime, because sufficient curative measures were taken before
the video reenactment confession was made. See Seibert, 542
U.S. at 622 (Kennedy, J., concurring in the judgment) (“If [a]
deliberate two-step strategy has been used, postwarning state-
ments that are related to the substance of prewarning state-
ments must be excluded unless curative measures are taken
before the postwarning statement is made.”).
The exact curative measures described as satisfactory in
Seibert were present here, namely, “a substantial break in
time and circumstances between the prewarning statement
and the Miranda warning.” Id. Thompson’s unwarned interro-
gation began around 11:00 p.m., and the video reenactment
13736 THOMPSON v. RUNNEL
did not start until the next day at around 12:45 p.m. In the
interim period, Thompson was fed and slept the night in the
county jail. In the morning, before relocating from the deten-
tion center to the victim’s house, he was readvised of his
Miranda rights. He was told that he did not have to participate
in the reenactment, that it could be used against him in court,
and that he could have his attorney present at any time.
Thompson read his rights aloud, stated that he understood
them, and indicated his willingness to participate in the reen-
actment.
Because there was a substantial break in time and place
between the unwarned statement and the reenactment, Seibert
cannot apply to render the confession in the reenactment
video inadmissible. See id. As such, the video must be admis-
sible unless it was involuntary under Elstad, id., an argument
that Thompson does not make in this appeal.
The majority’s dismissal of the curative steps taken
between Thompson’s initial questioning and the next-day
reenactment is erroneous. Though Thompson was given a sec-
ond set of Miranda warnings the morning of the reenactment,
the majority speculates that this advisement was ineffective
because “Thompson would have perceived the invocation of
his rights as even more futile the next morning.” Maj. op. at
13719. And, though the video reenactment occurred after a
significant break in time and change in location, the majority
surmises that these curative measures were insufficient
because Thompson was deprived of a blanket and bed in jail
and “was too cold to sleep.” Maj. op. at 13720.
These conjectures boil down to reliance on the “cat out of
the bag theory,” which is to say that the initial Miranda viola-
tion put Thompson at such a psychological disadvantage that
any later confession must be excluded regardless of any cura-
tive steps that were subsequently taken. See Bayer, 331 U.S.
at 540-41. But, as described above, the Supreme Court explic-
itly rejected this theory in Elstad, wherein the Court held that,
THOMPSON v. RUNNEL 13737
with respect to the admissibility of postwarning statements,
“there is no warrant for presuming coercive effect where the
suspect’s initial inculpatory statement, though technically in
violation of Miranda, was voluntary.” 470 U.S. at 318. Our
subsequent cases confirm that, in the wake of Elstad, “the ‘cat
out of the bag’ theory does not apply where a confession is
voluntarily made, under circumstances not requiring a
Miranda warning, subsequent to a technical Miranda viola-
tion.” Tawfeq Saleh v. Fleming, 512 F.3d 548, 551-52 (9th
Cir. 2008) (citing Medeiros v. Shimoda, 889 F.2d 819, 823-24
(9th Cir. 1989)). The majority’s rejection of the curative
effect of the substantial break in time and location between
the unwarned statements and video reenactment is thus con-
trary to both Supreme Court and Ninth Circuit precedent.
Because the video reenactment is admissible under Elstad
and Seibert, any error in admitting the postwarning confession
was harmless. See Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993) (holding that a Miranda violation is reviewed
for harmless error). In the video reenactment, Thompson not
only confessed in great detail to the murder, but showed
police step by step how he committed the crime. His earlier
postwarning confession was therefore cumulative of the reen-
actment, and its admission, even if erroneous, had no “sub-
stantial or injurious effect or influence in determining the
jury’s verdict.” Id. at 623 (internal quotation marks omitted).
IV
Thompson numerous times admitted to police that he mur-
dered his girlfriend. The two confessions at issue in this
appeal were given after proper Miranda warnings. In both,
Thompson gave detailed descriptions of the criminal act, and
in one Thompson is seen on video reenacting the murder for
police at the scene of the crime. Reviewing the issue properly
under AEDPA, the state court’s decision that these confes-
sions were admissible was not contrary to or an unreasonable
application of the Supreme Court’s clearly established hold-
13738 THOMPSON v. RUNNEL
ing in Elstad. Even reviewing the issue de novo under Ninth
Circuit and Supreme Court precedent, both of these confes-
sions were properly admitted at Thompson’s trial. With
respect, I dissent from the majority’s decision to grant
Thompson’s habeas writ.