                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1719
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska.
Kevin Walker,                            *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: December 11, 2007
                                  Filed: March 13, 2008
                                   ___________

Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
                             ___________

LOKEN, Chief Judge.

       Kevin Walker entered a conditional plea of guilty to a charge of possession of
a firearm by a controlled substance user. He appeals the conviction. Relying on
Missouri v. Seibert, 542 U.S. 600 (2004), Walker argues that the district court1 erred
in denying his motion to suppress an incriminating post-arrest statement that followed
a previous custodial statement made without the prior warnings mandated by Miranda



      1
        The HONORABLE RICHARD G. KOPF, United States District Judge for the
District of Nebraska, adopting the Report and Recommendation of the HONORABLE
DAVID L. PIESTER, United States Magistrate Judge for the District of Nebraska.
v. Arizona, 384 U.S. 436 (1966). Agreeing with the district court that this case is
governed by Oregon v. Elstad, 470 U.S. 298 (1985), rather than Seibert, we affirm.

       Alerted by the county sheriff that Walker had purchased two handguns, Police
Officer Sidney Yardley determined that Walker had an outstanding arrest warrant for
possession of marijuana and a prior conviction that precluded him from possessing
firearms in the City of Lincoln, Nebraska. Yardley obtained a warrant to search
Walker’s residence for the firearms and Walker’s person. A SWAT team executed
the warrant because of Walker’s violent history. When the SWAT team officers
advised that the firearms had been found and Walker was in custody, Yardley entered
the house. Yardley observed a female in the living room and Walker standing by a
kitchen counter between two SWAT team officers, handcuffed and in custody.
Yardley advised Walker why he was under arrest. When one of the officers pointed
out a bag of marijuana on the kitchen counter, Yardley asked Walker whose it was
without first advising him of his Miranda rights. Walker responded it was his
marijuana and he smokes it.

       With Walker in custody, Yardley obtained and executed a second warrant to
search the house for marijuana, which was found in several locations. Previously
released on bond, Walker was now arrested again and interviewed by Yardley at the
county correctional complex. Yardley advised Walker of his Miranda rights, obtained
a signed waiver of those rights, and questioned Walker, who admitted ownership and
possession of the firearms and the additional marijuana.

       Walker moved to suppress both statements. The district court concluded that
Yardley’s single question in Walker’s kitchen violated Miranda and suppressed
Walker’s response. However, applying Elstad rather than Seibert, the court concluded
that this initial Miranda violation did not require suppression of Walker’s statements
the next day made after he was properly advised of and waived his Miranda rights.



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      In Elstad, the defendant made incriminating statements while being arrested at
his home in response to rather casual questioning that nonetheless violated Miranda
because no warnings had been given. Later, at the sheriff’s office, the defendant was
advised of and waived his Miranda rights and gave a full statement. The state
appellate court held that the Miranda violation required suppression of the second
statement. The U.S. Supreme Court reversed:

      [A]bsent deliberately coercive or improper tactics in obtaining the initial
      statement, the mere fact that a suspect has made an unwarned admission
      does not warrant a presumption of compulsion. A subsequent
      administration of Miranda warnings to a suspect who has given a
      voluntary but unwarned statement ordinarily should suffice to remove
      the conditions that precluded admission of the earlier statement.

470 U.S. at 314. In Seibert, the Supreme Court considered “a police protocol for
custodial interrogation that calls for giving no warnings of the rights to silence and
counsel until interrogation has produced a confession,” followed by Miranda warnings
and questioning intended to elicit the same confession. The second confession,
proponents of the technique contemplated, would be admissible under Elstad. 542
U.S. at 604. The Court in Seibert distinguished Elstad and held that both confessions
must be suppressed because of the initial Miranda violation. The plurality and Justice
Kennedy, who supplied the decisive vote, adopted different tests for determining when
use of this two-step interrogation technique requires suppression of statements made
after the delayed Miranda warnings. Id. at 614-17, 621-22 (Kennedy, J., concurring);
see United States v. Ollie, 442 F.3d 1135, 1141-42 (8th Cir. 2006) (concluding that
Justice Kennedy’s narrower test should be applied in cases involving this two-step
interrogation technique).

      Walker argues that his second statement must be suppressed under Seibert
because that statement “necessarily relates back to the first and should be considered
[poisoned] fruit of the first.” The short answer to this contention is that Walker was

                                         -3-
not subjected to the two-step interrogation technique at issue in Seibert. That
technique is an example of the “deliberately coercive or improper tactics” expressly
excepted from the reach of Elstad. As the district court recognized, because an
improper tactic was not employed and the two questioning sessions were separated by
time and location, this case is governed by Elstad, not Seibert.

       Walker presented no evidence that Officer Yardley used coercion in eliciting
the first statement, that the Miranda waiver signed by Walker before the second
statement was not knowing and voluntary, or that the second statement was in any
way coerced. Indeed, not only were the two statements given at different times and
locations, they were unrelated to a significant degree. The second statement
concerned the firearms -- not a subject of Yardley’s inquiry the day before -- and the
marijuana found during the second search. Yardley had probable cause to obtain the
second warrant when he saw a bag of marijuana in plain view on the kitchen counter,
regardless whether it belonged to Walker, his friend in the next room, or a third party.
When the police found more marijuana in executing the second warrant, Yardley had
an independent basis to advise Walker of his Miranda rights, obtain a voluntary
waiver of those rights, and question Walker about ownership and possession of the
additional marijuana and the firearms.

      The judgment of the district court is affirmed.
                     ______________________________




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