                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-2251
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the District
      v.                                * of South Dakota.
                                        *
Ervey Hernandez-Hernandez,              *
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: December 16, 2003
                                 Filed: September 29, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, HEANEY, and FAGG, Circuit Judges.
                         ___________

FAGG, Circuit Judge.

        Ervey Hernandez-Hernandez was a passenger in a car stopped for a minor
traffic violation. The trooper decided to question Hernandez-Hernandez and the other
passengers about their immigration status after he determined they did not speak
English. Hernandez-Hernandez made incriminating statements to the trooper through
the English-speaking driver, to Border Patrol agents during an un-Mirandized
telephone call during the traffic stop, and to the Immigration and Naturalization
Service (INS) after he was in custody and after receiving Miranda warnings. The
district court* suppressed the statements to the trooper and to the Border Patrol
because the questioning exceeded the scope of the traffic stop and violated Miranda.
The court concluded the taint of those violations was not present in the postwarning
admissions to the INS, however, and thus admitted those statements. Hernandez-
Hernandez then conditionally pleaded guilty to illegally reentering the United States
after deportation in violation of 8 U.S.C. § 1326(a). Hernandez-Hernandez appeals
challenging the district court’s partial denial of his motion to suppress. We affirm.

       At about 4:00 p.m. on November 20, 2002, a South Dakota trooper saw a
vehicle traveling eastbound on I-90 with objects hanging from the rear view mirror
in violation of South Dakota law. The trooper stopped the vehicle and issued a
warning ticket to the driver. During the stop, the driver told the trooper that the front
seat passenger owned the vehicle, and that he understood English, but that the
passengers in the rear seat did not. When the trooper tried to communicate with the
owner, the owner said he could not speak English, and the trooper became suspicious.
With the driver’s help in interpreting, the trooper learned the two back seat
passengers, including Hernandez-Hernandez, were “working on” their immigration
status. The trooper called Border Patrol, who spoke with the passengers in Spanish
on the telephone. Border Patrol then told the trooper the passengers were in the
United States illegally and should be detained. The trooper took the passengers into
custody and transported them to the county jail. On November 25, 2002, Hernandez-
Hernandez was transferred from the jail to an INS office for an interview about his
right to remain in the United States. Before speaking with Hernandez-Hernandez, the
INS checked his fingerprints and learned they matched those of a person by the same
name who had been deported earlier.




      *
        The Honorable Lawrence Piersol, Chief Judge, United States District Court
for the District of South Dakota.

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        At the interview, an INS agent identified himself using his credentials. He was
unarmed and wearing plain clothes. The agent asked Hernandez-Hernandez whether
he spoke English, and Hernandez-Hernandez stated he did not. The agent then read
Hernandez-Hernandez his Miranda rights in Spanish. After the agent stated each
right, he asked Hernandez-Hernandez whether he understood. Hernandez-Hernandez
stated he did. Hernandez-Hernandez signed the advice of rights form, which listed
the rights in both English and Spanish. The agent then asked Hernandez-Hernandez
several questions in Spanish. In response, Hernandez-Hernandez stated he had been
deported six or seven months earlier, and had reentered the United States illegally a
couple of months later.

       The district court denied Hernandez-Hernandez’s motion to suppress his
statements to the INS agent because the taint of the illegal detention was sufficiently
purged when, five days after the traffic stop, the INS officer read Hernandez-
Hernandez his Miranda rights before Hernandez-Hernandez admitted he reentered the
country illegally after deportation. We must affirm the denial of a motion to suppress
unless the decision is unsupported by substantial evidence, is based on an erroneous
view of the applicable law, or in light of the entire record, we are left with a firm and
definite conviction that a mistake has been made. United States v. Rodriguez-
Hernandez, 353 F.3d 632, 635 (8th Cir. 2003).

       Statements that result from an illegal detention are not admissible. United
States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994). The causal chain between an
illegal arrest and a statement given later is broken, however, “if the statement is
‘sufficiently an act of free will to purge the primary taint.’” Id. (quoting Wong Sun
v. United States, 371 U.S. 471, 486 (1963)). “The giving of Miranda warnings,
followed by the making of a voluntary statement, does not, in and of itself, mandate
a statement’s admissibility.” Id. Instead, to decide whether a confession is the
product of a free will, courts consider Miranda warnings, the temporal proximity of
the arrest and the confession, the presence of intervening circumstances, and

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particularly, the purpose and flagrancy of the official misconduct. Id. Hernandez-
Hernandez contends the Government failed to carry its burden to show he effectively
waived his Miranda rights and that his admissions to the INS agent were voluntary
and an act of free will. United States v. Yousif, 308 F.3d 820, 830 (8th Cir. 2002).

       Applying the Ramos factors, the district court concluded the admissibility of
Hernandez-Hernandez’s statements to the INS agent was “an extremely close call.”
The court found Miranda warnings were properly given and waived. The fact the
statement was given five days after the initial illegal detention gave Hernandez-
Hernandez plenty of time to contemplate his situation and reconsider his decision to
confess. At the INS interview, Hernandez-Hernandez was faced with an unarmed
immigration official in plain clothes while during his Border Patrol confession he was
in a trooper’s patrol car with a barking drug dog. Although the trooper’s conduct
during the traffic stop weighed against admissibility of the confession, the court
concluded the other factors outweighed the trooper’s flawed performance. See
Yousif, 308 F.3d at 831 (district court committed clear error in admitting evidence
when “little time elapsed” between illegal detention and consent to search); Ramos,
42 F.3d at 1164 (evidence admissible when the arrest and consent were close in time,
and there were no intervening circumstances, but the officer’s conduct was in good
faith and the violation of Terry was not flagrant).

       After the district court decided this case, the Supreme Court decided Missouri
v. Seibert, 124 S. Ct. 2601 (2004). In Seibert, the Court condemned a two-step
interrogation technique in which police deliberately failed to provide Miranda
warnings in the hope that the suspect’s unwarned statements would loosen her tongue
in a later interview conducted after Miranda warnings were given. Id. at 2605.
Police had intentionally violated Miranda by questioning Seibert at the police station
about a murder without first advising her of her rights. Id. at 2606. After Seibert
made an incriminating statement, the police gave her a twenty-minute coffee break.
Id. When the interrogation resumed, the police advised her of her rights and obtained

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her waiver of them. Id. An officer then confronted Seibert with her earlier admission
and elicited a confession that was used to convict her. Id. The Court held that the
question-first technique undercuts Miranda’s goal of reducing the chances of
admitting a coerced confession, and in the suspect’s situation, the warnings were
unlikely to serve their intended purpose. The Court declared the midstream recitation
of warnings after the interrogation had begun and an unwarned confession had been
obtained could not effectively comply with Miranda’s constitutional requirement, and
thus, the postwarning statements were inadmissible. Id. at 2605.

       In its opinion, the Court distinguished its earlier decision in Oregon v. Elstad,
470 U.S. 298 (1985), which held a suspect who has answered inadvertently
unwarned, uncoercive questions may validly waive his rights and provide an
admissible statement after being warned. In Elstad, the defendant had made an initial
statement in his home, was taken to the police station, given Miranda warnings, then
admitted his involvement in a crime. Id. at 301. In contrasting between Elstad and
the situation in Seibert, the Court in Seibert listed several facts, similar to those we
listed in Ramos, that bear on whether Miranda warnings delivered midquestioning
can be effective: the completeness and detail of the questions and answers in the first
round of interrogation, the overlapping content of the two statements, the timing and
setting of the first and the second, the continuity of police personnel, and the degree
to which the interrogator’s questions treated the second round as continuous with the
first. Seibert, 124 S. Ct. at 2612. Because a reasonable person in Elstad’s shoes
could have seen the station house questioning as a new and distinct experience from
the earlier, unwarned questioning in his home, the station house Miranda warnings
could have been viewed as presenting a genuine choice whether to follow up on the
earlier admission. Id.

     Our case is more like Elstad than Seibert. It does not appear that the trooper,
Border Patrol, and INS used a multi-step interrogation in “a calculated way to
undermine the Miranda warning.” Id. at 2616 (Kennedy, J., concurring in the

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judgment). The failure of the trooper and the Border Patrol officer to read
Hernandez-Hernandez his rights does not seem to have been “an intentional
withholding that was part of a larger, nefarious plot.” Reinert v. Larkins, 379 F.3d
76, 91 (3d Cir. 2004).

       In any event, application of the Seibert factors in this case results in the
conclusion that the Miranda warnings given by the INS agent to Hernandez-
Hernandez were effective enough to accomplish their purpose. Seibert, 124 S. Ct. at
2612. As for the completeness and detail of the questions and answers in the first
round of questioning, we have no record of the questions asked by the Border Patrol
agent, but know from the transcript of the traffic stop that the passengers responded
briefly in a few sentences and gave biographical information. The content
undoubtedly overlapped somewhat. Nevertheless, the INS questioning was
conducted five days after the initial questioning, a much longer delay than the twenty-
minute break between questioning sessions condemned in Seibert, and there is no
evidence Hernandez-Hernandez was questioned or coerced during those five days in
jail. Further, the INS questioning was conducted at the INS office, not at the scene
of the first round of questioning, and was conducted by an INS agent who had no
involvement in the earlier questioning. Finally, the INS agent did not treat his
questioning as continuous with the earlier questioning during the traffic stop. See
id. The different methods and distant timing of the interrogations do not indicate
intentional, calculated conduct by the authorities. See United States v. Aguilar, No.
03-3892, 2004 WL 2026780, at *5 (8th Cir. Sept. 13, 2004). Since a reasonable
person in Hernandez-Hernandez’s situation could have viewed the questioning at the
INS office as a new and distinct experience from the earlier, unwarned questioning
at the traffic stop, Hernandez-Hernandez could have viewed the Miranda warnings
at the INS office as giving him a real choice. Seibert, 124 S. Ct. at 2612.

      Because the lapse in time, change in location, and change in the interrogating
personnel intervened between the unwarned questioning and Hernandez-Hernandez’s

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postwarning statement, id. at 2613 (Breyer, J., concurring), we conclude his
postwarning statement to the INS agent is admissible. We thus affirm the district
court’s partial denial of Hernandez-Hernandez’s motion to suppress.

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