Use of two-step interrogation technique results in murder conviction reversal
The court rules on the legality of a two-step interrogation technique in which officers "ask first, warn second" in this recent case
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PEOPLE V. SUMAGANG, 2021 WL 4453232 (Cal. App. 6th Dist. 2021)
A sheriff’s deputy found a car in a rural remote area. The car hood was raised, there was a large crack in the windshield and the gas cap was hanging out. The deputy found two cold persons in the back seat. Byron Sumagang was asleep, lying under Carole Sangco. Sangco’s face was against the window, with a cut and some dried blood above her right eye. The deputy knocked on the window and Sumagang awoke. Sangco was sleeping in eternity.
Sumagang, upset and crying, said Sangco was his girlfriend. He told the deputy they had both “taken a bunch of Klonopin and drank as much tequila as they could.” Sumagang said he was “not supposed to wake up,” and he was supposed to be with Sangco. As a deputy was escorting Sumagang to an ambulance, he asked Sumagang how Sangco got the injuries on her face and Sumagang replied, “I did that to her.” Sumagang was booked into the county jail.
Two days later, a detective interviewed Sumagang in two stages. The detective first interviewed Sumagang for 25 minutes without giving him a Miranda warning. The detective took a two-minute break, then gave a Miranda warning and began the second interrogation, which lasted 45 minutes.
During both sessions, Sumagang admitted choking Sangco until she stopped breathing or moving. Sumagang described how and where the two were positioned in the car; how long the choking lasted; what Sangco said while Sumagang choked her; how her body reacted; and how she stopped breathing after one or two minutes. Sumagang also said he tried to cut his own wrist and unsuccessfully tried to set the car on fire.
The United States Supreme Court ruled that an intentional “question first, Miranda second” technique generally renders a confession inadmissible (Missouri v. Seibert, 542 U.S. 600 (2004)). The Missouri v. Seibert is a plurality decision, meaning lower courts should generally follow the narrowest possible rule from the decision. The Missouri v. Seibert plurality opinion stated that any “question first, warn later” interrogation technique violates the Constitution. But only four justices agreed.
Justice Kennedy agreed with the result of Missouri v. Seibert but wrote a separate opinion stating he “would apply a narrower test applicable only in the infrequent case … in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Most courts apply the Seibert holding only in cases of an intentional “question first, Miranda second” violation.
The Supreme Court composition has changed significantly since Missouri v. Seibert, including the addition of two Democratic appointees, Justices Sotomayor and Kagan. In several federal circuit courts of appeals, judges have already held the “question first, warn later” technique may not be fatal to admission of a confession when officers do not intentionally break the rules. Nonetheless, other courts disagree and take a harsh line in any “question first, warn later” case, even one in which the officer makes an error and quickly corrects it. It is possible to conduct a voluntary interrogation after an interrogation where Miranda rules applied because the suspect was in custody, but officers intentionally omitted the proper warnings. However, the burden of proving the interrogation responses and the Miranda waiver in the second interrogation are voluntary is particularly tough. The second interrogation is presumed to produce involuntary statements.
Sumagang asked the trial court to suppress his confession. The trial court ruled the first interrogation inadmissible except for impeachment purposes. However, the court allowed the post-warning interrogation to be presented in the prosecution’s case in chief. The trial court relied on Justice Kennedy’s concurring opinion in Seibert. The judge stated that the detective “didn’t understand even that he needed to give the Miranda rights initially.” The court added, “I don’t think he was intentionally trying to do anything” to violate the Miranda rule.
The 9th Circuit reversed, holding that Sumagang was prejudiced by the admission of the confession at trial. The appellate court opined the detective deliberately violated Miranda principles by employing the two-step interrogation tactic and that there was no substantial evidence to show the detective’s error was innocent: “Because the prosecutor objected to defense counsel’s questions of the detective about his reasoning with respect to Miranda, the record lacks evidence of the detective’s subjective mental processes.”
The court of appeals also cited the lack of “curative measures” suggested by Justice Kennedy’s concurrence in Seibert, particularly noting the brief (two-minute) break between the first and second interrogations. Courts scrutinizing two-step interrogations examine:
- The thoroughness of the first interrogation
- The extent to which the first and second interrogations overlap
- The timing and setting of both interrogations, including whether the same officers are present
- The extent to which the interrogator’s questions treated the second interrogation as a continuation of the first, such as asking questions or seeking admissions that build on statements from the first interrogation (United States v. Moore, 670 F.3d 222 (2nd Cir. 2012)).
The detective explained he “chose not to” warn Sumagang under Miranda because he “wanted to see what he had to say first.” When the defense counsel questioned him, the detective acknowledged that he knew he was supposed to give Miranda warnings. When the defense attorney asked him whether he knew “that by asking Sumagang questions before Miranda that you were violating his Miranda rights,” the detective stated, “Not at that time, but later on I did.” He said he recognized his error “way after the interview.”
The two-step interrogation technique is always legally risky. In this case, it meant a reversal of Sumagang’s conviction for murder. Even when an officer believes the circumstances merit the two-step interrogation process, it’s best to consult a competent prosecutor. Chances are the prosecutor will advise against it.