                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0318n.06

                                        Case No. 16-1785

                          UNITED STATES COURT OF APPEALS                                FILED
                               FOR THE SIXTH CIRCUIT                              Jun 08, 2017
                                                                              DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
v.                                                    )        COURT FOR THE EASTERN
                                                      )        DISTRICT OF MICHIGAN
ALVIN RAY,                                            )
                                                      )
       Defendant-Appellant.                           )

BEFORE:        KEITH and CLAY, Circuit Judges; MARBLEY, District Judge.*

       MARBLEY, District Judge. This case is before us a second time, following a remand to

the district court to conduct an evidentiary hearing on Alvin Ray’s motion to suppress statements

he made to the police after receiving a “midstream” Miranda warning. See United States v. Ray

(Ray I), 803 F.3d 244 (6th Cir. 2015). On remand, the district court conducted a hearing and

applied the midstream Miranda warning test from Missouri v. Seibert, 542 U.S. 600 (2004), as

we instructed, but still found Ray’s post-Miranda confession admissible. United States v. Ray,

No. 13-20143, 2016 WL 3180184 (E.D. Mich. June 8, 2016). As explained below, however,

a reasonable person in Ray’s shoes would not have viewed the post-Miranda questioning as a

“new and distinct experience” that presented “a genuine choice whether to follow up on [his]




*
  The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio,
sitting by designation.
Case No. 16-1785, United States v. Ray


earlier admission.” Ray I, 803 F.3d at 272-73 (quotation omitted). Accordingly, we reverse and

remand for a new trial.

                                      I. BACKGROUND

       We already recited the relevant facts in Ray’s first appeal. The short version is that, upon

receiving complaints of drug activity at a residence on Genesee Street, Detroit police officers

arranged for a controlled buy using a confidential informant (“CI”). The CI returned carrying a

bag of marijuana that he claimed he purchased from a black male named Alvin Ray. The police

then obtained a search warrant and returned the next afternoon to execute it.

       Upon executing the warrant, the police discovered Ray and his longtime girlfriend, Cara

Lee (the mother of Ray’s teenaged son), asleep upstairs. The officers rousted the pair from bed,

took them down to the living room, handcuffed them, and made them face a wall while the

officers searched the house for drugs and contraband.        The officers ultimately discovered

marijuana, crack cocaine, an unloaded shotgun, several shotgun shells, a .22 caliber rifle, and a

semiautomatic handgun in various rooms of the house.

       Ray and Lee remained detained in the living room for roughly an hour while the officers

executed the warrant. Several officers walked through the living room at different times, but no

single officer maintained custody of Ray and Lee during the entirety of the search.

       Ray and Lee testified on remand and told essentially the same story: (1) that one or more

officers remarked that there were enough guns in the house for both Ray and Lee to go to jail;

(2) that one or more officers commented on Lee’s status as a state-court employee and made

veiled threats about her continued employment; (3) that an officer asked Ray whether he had

been to jail before, to which Ray replied that he had been to federal prison; (4) that the same

officer chastised Ray for destroying the community by selling drugs; (5) that the same officer



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asked who owned the guns the police found in the house; and (6) that, in response, Ray took the

blame for the guns to spare Lee the embarrassment of being arrested or losing her job.

       Five of the officers who executed the warrant also testified on remand, while a sixth died

before Ray’s original trial and, thus, was unable to testify. The officers generally denied that

anyone discussed the guns or drugs with Ray while they were in the house. Not one of the

officers testified that a threat, whether explicit or implicit, was made to Ray or that he was

questioned at the house. The officers explained that it would have violated their procedures to

question Ray (or Lee) in the home or in the presence of one another. The officers further

testified that any discussion with Ray and Lee while at the house was limited to collecting

routine biographical information and to general topics, like sports and the weather. That said,

Officers Wiencek and Robson admitted that they spoke to Lee about her son and her

employment at the Wayne County Friend of the Court’s Office. And several officers left open

the possibility that someone on their task force asked Ray and Lee about who owned the guns in

the home.    But not one officer could recall Ray claiming ownership, whether solicited or

unsolicited, of the guns or drugs while at the house.

       After the search concluded, the officers arrested Ray (but not Lee) and took him to the

local police station for questioning. Once there, Officers Hill and Robson gave Ray Miranda

warnings for the first time, both orally and in writing. Ray signed a Miranda warning form and

certified that he had not been threatened or promised anything. He also agreed to answer their

questions. At that point, the officers allege that Ray first told them that the marijuana and

shotgun belonged to him, but he denied ownership of the crack cocaine and the other guns. Ray

testified that, during the interrogation, he admitted that the shotgun and marijuana were his

(but not the other firearms) because he already had admitted to it earlier at the house, and



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because he was afraid that if he denied ownership now, the police would retaliate against him by

arresting and charging his girlfriend.

       As a result of the search and Ray’s statements to the police, he was convicted of one

count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g); two counts

of possession with intent to distribute controlled substances (cocaine and marijuana), in violation

of 21 U.S.C. § 841; and one count of possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c). Lee was not charged with any crimes.

       Ray appealed his convictions on several grounds, one of which we found potentially

meritorious. Ray I, 803 F.3d at 251. Accordingly, we reversed his convictions and remanded the

matter to the district court to conduct an evidentiary hearing regarding the admission of Ray’s

station-house confession. Id. In so doing, we explicitly adopted the “multi-factor test” from

Missouri v. Seibert to govern the admissibility of statements given after “midstream Miranda

warnings.” Id. at 272-73 (citing Seibert, 542 U.S. at 616 (plurality opinion)).

       On remand, the district court held an evidentiary hearing, as instructed, and applied the

multi-factor test from Seibert before determining that Ray’s confession was admissible. Ray,

2016 WL 3180184, at *4-5. The court first concluded that most of Ray’s testimony during the

hearing was not credible. Id. at *3 (“With such discrepancies in Ray’s testimony on such basic

facts as the race of the threatening police officer, content of his threat, and timing of the

admission, Ray’s testimony [regarding coercive conduct] is not credible.             Moreover, no

testimony by any police officer at trial or the evidentiary hearing supports Ray’s account . . . .”).

The court then examined each of the five factors from Seibert and concluded that not one of

them supported a finding that Ray’s police-station confession was inadmissible. Id. at *4-5.

Next, the court found that Ray’s station-house Miranda waiver was made knowingly,



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voluntarily, and intelligently. Id. at *5. As a result, the court concluded that Ray’s post-Miranda

statements were properly admitted at trial. Id.

                                II. STANDARD OF REVIEW

       In determining the admissibility of statements allegedly taken in violation of a

defendant’s Miranda rights, we review the district court’s factual findings for clear error and its

legal conclusions de novo. Ray I, 803 F.3d at 265. We generally defer to the district court’s

assessments of credibility, review the evidence in the light most favorable to the district court’s

decision, and consider the evidence in the light most favorable to the government. Id.

                                         III. ANALYSIS

       Ray argues that the district court erred by concluding that the midstream Miranda

warnings he received were effective under the multi-factor test announced in Seibert. Before

turning to that question of law, we must first address the district court’s factual findings.

As explained below, those findings were incomplete and placed unwarranted importance on

minor inconsistencies in Ray’s testimony. Despite these weaknesses in the district court’s

analysis, we uphold the court’s factual findings because they fall short of clear error.

Nevertheless, even accepting the district court’s factual findings, we disagree with the court’s

legal conclusions under Seibert. Ray’s station-house confession is inadmissible.

          A. The District Court’s Factual Findings Were Not Clearly Erroneous.

       Before turning to Seibert, we must assess the district court’s factual findings, which

pervaded the rest of the court’s analysis. The court found that, “[a]t most . . . a police officer

asked [Ray] and Lee ‘whose guns are these?’ and [Ray] individually ‘have you ever been to jail

before?’” while at the house. Ray, 2016 WL 3180184, at *4. Ray testified that he responded by

saying “those are my guns” and “I have been to federal prison.” Id. Based on this “brief and



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Case No. 16-1785, United States v. Ray


cursory exchange,” the court found that the Government had met its burden of admissibility

under Seibert. Id. at *4-5.

       The district court based these findings on its determination that Ray’s story was mostly

unbelievable since it had changed over time. Id. at *3 (noting inconsistencies between Ray’s

trial testimony and evidentiary hearing testimony as to: (1) which of six officers initially spoke to

him; (2) whether that officer made a declarative statement that Ray and Lee were going to jail or

asked “whose guns are these?” before threatening that Ray and Lee were going to jail; and

(3) whether Ray immediately admitted to owning the guns or paused before doing so). From our

vantage, these discrepancies were minor and largely irrelevant. The inconsistencies that the

district court focused on—i.e., which officer threatened Lee, what verbiage he used, and how

long it took Ray to respond to the threat—did not address whether the conversation actually

occurred. See United States v. Hughes, 604 F. App’x 448, 453 (6th Cir. 2015) (critiquing district

court for placing “unwarranted importance on relatively minor inconsistency in [defendant’s]

testimony”).

       Even more troubling, however, is the fact that the court omitted any discussion of Cara

Lee’s testimony. Lee testified at length, and her testimony largely corroborated Ray’s version of

events—including significant corroboration as to receipt of threats from the officers and more in-

depth interrogation than the officers let on. Yet in weighing the credibility of Ray’s testimony

against the officers’ testimony, the court failed to mention Lee’s testimony at all. We do not

know if the court found her version of events credible, not credible, or partially credible. This is

deeply troubling, especially since our court often relies on credibility determinations based on

the consistency of two witnesses’ accounts. See, e.g., United States v. Garrido, 467 F.3d 971,

979 (6th Cir. 2006) (concluding that “consistency of the two officers’ accounts” indicates that



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their statements were credible); United States v. Simmons, 174 F. App’x 913, 917 (6th Cir. 2006)

(finding witnesses’ testimony credible because it was “substantively consistent”).

       Finally, the circumstances of Ray’s arrest seem consistent with his (and Lee’s) version of

events. Consider: the police raided a house; found guns and drugs inside; handcuffed the only

two occupants and engaged in continuous conversation with them; chatted about Lee’s son, her

employment, and, as the district court concluded, who owned the guns—but then proceeded to

talk about nothing else but sports and the weather for an hour. It seems plausible that the police

spoke about more than just sports and the weather and that their conversation turned to whether

Lee might be arrested or fired, who owned the guns, who owned the drugs, and Ray’s prior

criminal record—as Ray and Lee collectively testified. The fact that the police arrested Ray but

not Lee buttresses his testimony that the police engaged in more fulsome interrogation and that

he admitted to owning the shotgun and the marijuana. Otherwise, why would the police let Lee

go free? She lived in the house, she was in the bedroom where the police found the marijuana,

and she was present and near the shotgun behind the bedroom door, just as Ray was.

       Even considering these shortcomings in the court’s credibility determinations, we are

hard-pressed to find them clearly erroneous. After all, we are left with a “he said, they said”

scenario, and in cases “[w]here there are two permissible views of the evidence, the factfinder’s

choice between them cannot be clearly erroneous.” United States v. Dillard, 438 F.3d 675, 681

(6th Cir. 2006) (quotation omitted). This deference holds true even when the court “place[s]

unwarranted importance on relatively minor inconsistencies in [a witness’s] testimony” and

“[d]espite . . . weaknesses in the district court’s analysis.” Hughes, 604 F. App’x at 453; see also

United States v. Ray, 361 F. App’x 674, 676 (6th Cir. 2010) (affirming denial of motion to

suppress where “the only testimony that supports [defendant’s] story is his own and that of his



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Case No. 16-1785, United States v. Ray


then-girlfriend[,] Tameka Brooks . . . both of which the district court found lacked credibility”).

Accordingly, we accept the district court’s credibility determinations and factual findings.

  B. The District Court Erred as a Matter of Law by Finding Ray’s Midstream Miranda
                     Warnings Effective Under Missouri v. Seibert.

       Even accepting the district court’s factual findings regarding the limited pre-Miranda

exchange between Ray and the police while at the house, we conclude that the court erred by

finding the later station-house Miranda warnings effective under Seibert.         De novo review

requires our court to draw its own conclusions from the facts about whether a reasonable person

“could have seen the station house questioning as a new and distinct experience, [and whether]

the Miranda warnings could have made sense as presenting a genuine choice whether to follow

up on the earlier admission.” See Ray I, 803 F.3d at 272-73 (quotation omitted); see also United

States v. Wooten, 602 F. App’x 267, 272 (6th Cir. 2015).

        1. Ray Was Subject to Custodial Interrogation at the House, Triggering Seibert.

       Before turning to the multi-factor test from Seibert, we dispense with the Government’s

argument that Seibert does not apply because there was no custodial interrogation at the house.

See United States v. Courtney, 463 F.3d 333, 337 (5th Cir. 2006) (holding that, because first

statement did not violate Miranda, Seibert did not apply); United States v. Kiam, 432 F.3d 524,

531 (3d Cir. 2006) (holding that Miranda warnings were not required before routine questions by

border patrol, so Seibert was inapplicable to post-Miranda confession).

       To be sure, the district court discredited Ray’s testimony as to whether “the police

officers’ conduct during the house search . . . amount[s] to coercion that tainted [his] later

Mirandized statements.” Ray, 2016 WL 3180184, at *3 (assessing whether police engaged in

coercive conduct so as to render Ray’s later confession inadmissible under Oregon v. Elstad,

470 U.S. 298 (1985)). Thus, we must accept that the police did not threaten to imprison Lee or

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Ray if they failed to admit ownership of the guns. Id. (“[T]he evidence does not reflect that Ray

was subject to objectively coercive police conduct that motivated a decision to confess.”).

       But the court went on to accept the following facts: (1) that a police officer asked Ray

and Lee “whose guns are these?”; (2) that the same officer asked Ray individually “have you

ever been to jail before?”; and (3) that Ray responded by saying, “those are my guns” and

“I have been to federal prison.” Id. at *4; see also id. at *1 (“Ray says that a police officer then

questioned him about the guns that were seized, prompting him to admit they were his.”). Even

this brief and cursory exchange amounted to a custodial interrogation that required Miranda

warnings. See Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980) (“We conclude that the

Miranda safeguards come into play whenever a person in custody is subject to either express

questioning or its functional equivalent. . . . A practice that the police should know is reasonably

likely to evoke an incriminating response from a suspect thus amounts to interrogation.”).

       For starters, there is no dispute that Ray was handcuffed at the time and, thus,

“in custody” for Miranda purposes. See Ray I, 803 F.3d at 266 n.12 (collecting cases). And

asking a suspect whether he had a criminal record and owned or possessed a firearm certainly

amounts to “express questioning” that “police should know is reasonably likely to evoke an

incriminating response.” See Innis, 446 U.S. at 300-01; see also United States v. Ashmore,

609 F. App’x 306, 309-10, 317 (6th Cir. 2015) (affirming suppression of pre-Miranda statement

“that the car might contain a revolver” in response to question, “Do you have . . . any weapons

on you or in the car?”; “Agent Jenkins asked pre-Miranda the one compound question relevant

to a felon-in-possession charge: is there a gun in the car and are your fingerprints on it?”).

Unlike in Courtney, Kiam, and other cases where courts concluded that Seibert’s midstream




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Miranda warning test did not apply—Ray was both in custody and subject to custodial

interrogation while at the house.

       We therefore turn our attention to the multi-factor test from Seibert, bearing in mind that

the burden of showing admissibility of a confession under that test rests on the Government—not

Ray. Ray I, 803 F.3d at 270 (“[T]he burden of showing admissibility rests, of course, on the

prosecution.” (quoting Seibert, 542 U.S. at 608 n.1)).

      2. The Completeness and Detail of the Questions and Answers in the First Round of
              Interrogation Suggest that the Miranda Warnings Were Ineffective.

       The first Seibert factor—which looks to “the completeness and detail of the first round of

interrogation”—suggests that the Miranda warnings Ray ultimately received at the police station

were ineffective. By asking Ray about his possession and ownership of the guns, as well as his

prior stint in federal prison, the officers “asked pre-Miranda the [only] question[s] relevant to a

felon-in-possession charge.” Ashmore, 609 F. App’x at 317. In Ashmore, as here, the initial,

pre-Miranda questioning “was not as detailed as in Seibert.” Id. Nevertheless, we still mandated

suppression of the incriminating post-Miranda statements because the police asked, pre-

Miranda, all the questions they needed to obtain a conviction. Id. (“Under the plurality’s test, all

of the factors suggest that Agent Jenkins’ question-first, Mirandize-later tactic requires

suppression of the post-Miranda admission.”).

       So too, here. Even accepting the district court’s factual findings, the officers still asked

Ray all the questions they needed to make an arrest, tailor their post-Miranda interrogation, and

secure a conviction. Id.; see also United States v. Pacheco-Lopez, 531 F.3d 420, 422, 428

(6th Cir. 2008) (finding first factor satisfied where initial questioning consisted of asking

defendant’s name, where he lived, and how he arrived at the house in drug trafficking case).

Under these circumstances, the officers’ initial questioning (and Ray’s responses) were detailed

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and complete enough to suggest that the station-house Miranda warnings were ineffective.

Ashmore, 609 F. App’x at 317.

              3. The Overlapping Content of the Two Statements Suggests that the
                            Miranda Warnings Were Ineffective.

       The second Seibert factor—which looks to “the overlapping content of the two

statements”—also suggests that the Miranda warnings Ray received at the police station were

ineffective. The district court concluded that there was “minimal” overlap because Ray provided

“extended admissions” at the police station that he did not give in his “abbreviated response[s] at

the house.” Ray, 2016 WL 3180184, at *4. We disagree.

       At the house, Ray admitted to owning the guns and having served time in federal prison.

During the station-house questioning, the officers followed up on those responses based on “the

knowledge [they] gleaned during the initial questioning.” See Pacheco-Lopez, 531 F.3d at 428

(finding the second factor satisfied where officers followed up on previous questions and

answers). As in Pacheco-Lopez, the questions regarding who owned the guns and what Ray

knew about them were not “anomalous, which might support a finding that the warning was

effective, but [were] the next logical question[s] based on the earlier statements.” Id.; see also

Ashmore, 609 F. App’x at 317 (“The second . . . factor[] favor[s] suppression because the pre-

and post-Miranda questioning was materially the same . . . .”).

       To be sure, during their post-Miranda questioning, the officers also inquired about the

drugs they discovered while executing the search warrant. And, because we accept the district

court’s factual findings, those would have constituted “new” questions during the second round

of interrogation. But asking some “new” or “amplifying” questions during a post-Miranda

interrogation does not render such a warning effective where pre-Miranda interrogation along

similar lines already occurred.

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       In Pacheco-Lopez, for example, the officers asked questions regarding the defendant’s

identity, where he lived, and how and when he arrived at the target residence before reading him

his Miranda rights. 531 F.3d at 420. Upon learning that Lopez was from Mexico and had driven

to the home in Kentucky that week, the officers read him his Miranda rights and then began

asking follow-up questions as to whether he had brought any cocaine to the residence. Id.

Technically, these were “new” questions as compared to the pre-Miranda interrogation, but our

court correctly viewed them as “the next logical question[s] based on the earlier statements”—

thus satisfying the second Seibert factor for overlapping content. Id. at 428.

       Likewise, in Ashmore, the arresting officer asked the defendant if he had any guns on him

or in his car, or if his fingerprints would be found on any weapons they discovered in the vehicle,

all before advising him of his Miranda rights. 609 F. App’x at 308. After Ashmore responded

that the car “probably” contained a revolver, the officer arrested him and advised him of his

Miranda rights. Id. During the post-Miranda interrogation, the officer continued along the same

line by asking Ashmore if he was a convicted felon and whether he knew that he could not

lawfully possess firearms. Id. But the officer did not stop there; instead, he also asked Ashmore

whether he used illegal drugs, to which Ashmore responded that he smoked crack cocaine. Id.

By that time, the officers searching the vehicle had discovered a gun and various drugs and drug

paraphernalia in the car. Id. As in Pacheco-Lopez, the post-Miranda interrogation involved

some new and amplifying information. But rather than applying a hyper-technical analysis of

whether the pre- and post-Miranda questioning and answers mirrored one another, our court

found substantial overlap between the two and suppressed the post-Miranda statements.




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Id. at 317 (“Agent Jenkins picked his line of questioning up post-Miranda right where he left off

pre-Miranda—he wanted to know what Ashmore knew about the gun . . . .”).

       Even accepting the district court’s factual findings, we find substantial overlap between

the content of Ray’s pre- and post-Miranda statements, thus satisfying the second Seibert factor.

Ray elaborated on his earlier admissions, but that elaboration was made possible solely because

of the overlapping content between what he was asked pre- and post-Miranda.

       4. The Timing and Setting of the First and Second Interrogations Suggest that the
          Miranda Warnings Were Ineffective, but this Factor Presents a Close Call.

       The third Seibert factor—which looks to “the timing and setting of the first and second

interrogations”—is a wash. The district court found that the forty-five minute interval between

when Ray was questioned at the house and the police station, coupled with the change in

location, were enough “to create a new and distinct experience for Ray in making the decision of

whether or not to admit his crimes.” Ray, 2016 WL 3180184, at *4 (quotation omitted).

       Make no mistake: there was a break in the timing and setting of Ray’s two interrogations

that exceeds the facts from Seibert (twenty minute gap in time; same location); Pacheco-Lopez

(no gap in time; same location); and Ashmore (“second interrogation followed shortly after the

first”; slight change in location). See Seibert, 542 U.S. at 616 (plurality opinion); Pacheco-

Lopez, 531 F.3d at 427; Ashmore, 609 F. App’x at 317. Ray’s first round of questioning

occurred while he was handcuffed in the living room, with his face to the wall. Ray’s second

round of questioning occurred roughly forty-five minutes later, in an interrogation room at the

local police station. Ordinarily, this separation “both in time and in setting” would suggest that

“the third Seibert factor does not weigh as strongly against a finding of effectiveness as it

otherwise might.” See Wooten, 602 F. App’x at 274; see also Coomer v. Yukins, 533 F.3d 477,

491 (6th Cir. 2008) (holding that “[e]ven under the Seibert plurality’s test,” moving a suspect to

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a police station and waiting “several hours” to resume interrogation ordinarily constitutes a

“new and distinct experience” for Miranda purposes (quotation omitted)).

        Ray argues that, from the vantage of a reasonable person in his shoes, the same coercive

elements survived his brief transfer from the house to the police station. In other words, Ray

argues that a forty-five minute break in questioning involving some of the same officers and the

same topics is no different than the twenty minute break in Seibert. He likewise argues that both

settings were coercive because in the first, he was: (1) handcuffed; (2) being asked about a set of

guns the officers had discovered in their house; and (3) worried about protecting his long-time

girlfriend, with whom he shared a young son; while in the second, he was: (1) under arrest;

(2) at a police station; (3) being asked about the same incriminating topics; (4) segregated from

Lee; and (5) still uncertain of her status.

        Given these circumstances, we find that the timing and setting of the two interrogations

“does not weigh as strongly against a finding of effectiveness as it otherwise might.” Wooten,

602 F. App’x at 274. This factor cuts both ways and sheds little light on whether the station-

house Miranda warnings were ineffective as “presenting a genuine choice whether to follow up

on [Ray’s] earlier admission[s].” See Seibert, 542 U.S. at 616 (plurality opinion).

 5. The Continuity of Police Personnel Suggests that the Miranda Warnings Were Ineffective.

        The fourth Seibert factor—which examines “the continuity of police personnel”—

informs that the Miranda warnings Ray received at the police station were ineffective.

The district court determined that this factor “does not support a finding of inadmissibility”

because Ray testified “that the police officer who threatened Lee’s arrest at the house was

James Wiencek,” while “the interrogating police officers who questioned Ray at the police




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station were Gregory Robson and Patrick Hill.” Ray, 2016 WL 3180184, at *4 (“Thus . . . Ray’s

own testimony disqualifies him under this factor of the midstream Miranda test.”).

       The district court was correct in one sense but still missed the bigger picture. In this case,

the same officers who conducted the second interrogation were intimately involved in the first.

Officers Robson and Hill were at the house during the execution of the search warrant. They

worked for the same law-enforcement agency and the same task force as did Officer Wiencek.

They traversed through the living room while Lee and Ray were handcuffed and detained.

Indeed, Robson and Hill were within hearing of most, if not all, of the conversations and

questioning while Ray was in custody and making his pre-Miranda statements. Thus, while the

same officer did not conduct both the pre- and post-Miranda questioning, there was at least a

“continuity of police personnel” during both rounds of questioning. See Seibert, 542 U.S. at 616

(plurality opinion) (emphasis added).

       Contrast these facts with the Government’s case-in-support, United States v. Hernandez-

Hernandez, 384 F.3d 562 (8th Cir. 2004). There, a state trooper and Border Patrol agent took

turns conducting the initial, pre-Miranda questioning at a traffic stop and by telephone, only to

have an Immigration and Naturalization Service agent conduct the follow-on, post-Miranda

questioning five days later at the INS office. Id. at 563-66. In affirming the partial denial of the

defendant’s motion to suppress, the Eighth Circuit took care to note that, not only had five days

passed between the initial and subsequent questioning, but that the post-Miranda questioning

“was conducted by an INS agent who had no involvement in the earlier questioning.” Id. at 566

(emphasis added). Thus, the court concluded, “[i]t 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. (quotation omitted). Here, in contrast, all of the officers involved in both steps of



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Ray’s interrogation worked for the same police department, formed part of the same task force,

and presumably had knowledge of Ray’s initial, unwarned statements.

       Under these circumstances, we conclude that the fourth Seibert factor was met because

there was practical continuity of police personnel between Ray’s initial and follow-on

interrogations.   If absolute continuity were the test, then police departments could easily

circumvent it by having one officer conduct the pre-Miranda questioning while another officer

listens in, only to have the second officer (or another officer with knowledge of the confession)

conduct the follow-on, post-Miranda interrogation. That cannot be right.

 6. The Degree to Which the Interrogators’ Questions Treated the Second Round as Continuous
             with the First Suggests that the Miranda Warnings Were Ineffective.

       Finally, the fifth Seibert factor—which assesses “the degree to which the interrogators’

questions treated the second round as continuous with the first”—suggests that the Miranda

warnings Ray received at the police station were ineffective. The district court reasoned that this

prong “does not indicate that Miranda warnings were ineffective” because “[t]here was no

evidence the interrogating police officers referenced or used Ray’s prior admissions at the house

in the interrogation at the police station.” Ray, 2016 WL 3180184, at *5.

       The record does not support the district court’s conclusion. Once they advised Ray of his

Miranda rights, Officers Robson and Hill asked him ten questions—several of which were

derivative of his earlier admissions, even under the district court’s factual findings regarding the

“brief and cursory” statements Ray made at the house.

       For example, the officers did not ask Ray if he knew about the guns being in the house or

if he possessed a gun. Instead, they asked, “[w]hich guns found in the house belong to you,”

presumably because they knew Ray already admitted to owning at least one of the guns.



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(Dist. Ct. Doc. 114-1, PageID 1374). Ray clarified that he owned only the shotgun found in the

upstairs bedroom.

       Likewise, the officers did not ask Ray general questions regarding past run-ins with the

law or whether he had a prior record. Instead, they asked him more specifically if he was “aware

that [he] was a convicted felon”—presumably because Ray already admitted to doing time in a

federal prison while being questioned at the house. (Id.). The officers also asked a targeted

question concerning whether Ray was “aware that owning a firearm is against the terms of [his]

release,” again, presumably as a follow-up to Ray’s earlier admission about doing time. (Id.).

       Those were the only questions the officers asked about the guns or Ray’s status as a

convicted felon. (Id.). This lack of questioning suggests that the officers had very little work to

do at the post-Miranda interrogation because they were just following up on Ray’s prior

admissions. As in Ashmore, the officers “picked [their] line of questioning up post-Miranda

right where [they] left off pre-Miranda—[they] wanted to know what [Ray] knew about the

gun[s] that, by that time, had been found.” 609 F. App’x at 317. This suggests that “the

Miranda warnings did not effectively advise [Ray] that he had a real choice about giving an

admissible statement because the unwarned and warned interrogations blended into one

continuum.” Id. (quotation omitted); see also Pacheco-Lopez, 531 F.3d at 427-28 (finding the

fifth factor satisfied where interrogations seemed “continuous” and “part of one sequence”).

       In summary, the first, second, fourth, and fifth factors identified by the Seibert plurality

all show that “a reasonable person in [Ray’s] shoes could [not] have seen the station house

questioning as a new and distinct experience,” while the third factor does not illuminate the

inquiry. See Seibert, 542 U.S. at 615 (plurality opinion). Under the totality of the circumstances,

“[i]t would have been reasonable to regard the two sessions as parts of a continuum, in which it



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would have been unnatural to refuse to repeat at the second stage what had been said before.”

See id. at 617.

        All told, “the Miranda warnings could [not] have made sense as presenting a genuine

choice whether to follow up on [Ray’s] earlier admission[s],” and suppression of his post-

Miranda statements is required. See id. at 615-16; see also Pacheco-Lopez, 531 F.3d at 428

(“All five factors—and particularly factors three, four, and five—demonstrate that the Miranda

warning was ineffective. As a result, Lopez’s admission must be suppressed under Seibert’s

effectiveness test.”).

        Because we find that Ray’s station-house Miranda warnings were ineffective, we need

not determine whether his Miranda waiver was made knowingly, voluntarily, and intelligently.

Seibert, 542 U.S. at 612 n.4 (plurality opinion) (describing how a defendant cannot “waive” his

Miranda rights if the underlying warning was ineffective); Pacheco-Lopez, 531 F.3d at 428 n.13

(“As discussed supra, the Seibert plurality explained that where a warning is ineffective, the

defendant cannot waive his rights.” (citing Seibert, 542 U.S. at 612 (plurality opinion))).

                                          IV. CONCLUSION

        For these reasons, we reverse the district court’s decision on remand; order the

suppression of Ray’s post-Miranda statements at the police station; and remand the case for a

new trial consistent with this opinion.




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