                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                       File Name: 08a0222p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                   X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                    -
                                                    -
                                                    -
                                                        No. 07-5408
          v.
                                                    ,
                                                     >
 PEDRO PACHECO-LOPEZ,                               -
                           Defendant-Appellant. -
                                                   N
                      Appeal from the United States District Court
                  for the Western District of Kentucky at Louisville.
                No. 06-00049—Charles R. Simpson III, District Judge.
                                    Argued: December 6, 2007
                                Decided and Filed: June 26, 2008
                   Before: MERRITT, COLE, and GRIFFIN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Kent Wicker, REED WICKER, Louisville, Kentucky, for Appellant. Madison T.
Sewell, ASSISTANT UNITED STATES ATTORNEY, Louisville, Kentucky, for Appellee.
ON BRIEF: Kent Wicker, REED WICKER, Louisville, Kentucky, for Appellant. Laura L. Hall,
Terry M. Cushing, Monica Wheatley, ASSISTANT UNITED STATES ATTORNEYS, Louisville,
Kentucky, for Appellee.
       MERRITT, J., delivered the opinion of the court, in which COLE, J., joined. GRIFFIN, J.
(pp. 10-12), delivered a separate dissenting opinion.
                                       _________________
                                           OPINION
                                       _________________
         MERRITT, Circuit Judge. The defendant, Pedro Pacheco-Lopez (Lopez), challenges the
district court’s denial of his request to suppress certain statements made prior to his arrest. The
defendant argues that his initial statements – made prior to receiving his Miranda warnings – should
have been suppressed because they were responses to a custodial interrogation and do not fall under
the “booking exception” to Miranda. Additionally, the defendant argues that his later admission,
made after receiving his warning, resulted from impermissible “Miranda-in-the-middle”
questioning. Because the booking exception applies narrowly to biographical questions and has
rarely been applied outside of a police station, we hold that the defendant’s first statements should
have been suppressed. We similarly find that Lopez’s post-Miranda admission should be
suppressed. Accordingly, the district court’s decision is REVERSED.

                                                 1
No. 07-5408                      United States v. Pacheco-Lopez                                                  Page 2


                                                        I. Facts
        On March 13, 2006, undercover officers arrested Gerardo Castro-Acosta and others on Clay
Avenue in Louisville, Kentucky, during an arranged “controlled buy” of sixteen kilograms of
cocaine. The individuals involved in the drug deal had arrived in a white Subaru car and a red
Dodge pickup truck. After making the arrests, the police obtained a search warrant for 6006 Cooper
Chapel Road, the address in Louisville for the cars registered under Acosta’s name. When the police
arrived at the home, they found the defendant, Lopez, and another individual identified as Bernal-
Bajo. The officers had no information concerning either of the men when they were discovered at
the residence.
         The officers executing the search warrant immediately handcuffed Lopez and placed him at
the kitchen table for questioning. The exact sequence of events during the questioning is unclear,
however, because each of the three officers who 1testified at the July 10, 2006, suppression hearing
recalled the events in a slightly different manner. The district court judge relied primarily on DEA
Agent Mark Slaughter’s testimony after finding that Kentucky State Trooper Lagrange’s testimony
was “somewhat imprecise” and that Agent Brian Bester was not present. In accordance with the
district court’s factual finding, as well as the fact that one officer admitted to remembering the facts
incorrectly, we give greatest weight to Officer Slaughter’s account.
        Slaughter testified that the detainee, Lopez, was initially asked questions related to securing
the residence and to his identity. Slaughter, who does not speak Spanish, discovered that the
detainees did not speak English and obtained translating assistance from Lagrange. Slaughter asked
Lopez his name and where he lived; the detainee responded that he lived in Mexico and not at the
Cooper Chapel Road residence. Slaughter next asked Lopez when he arrived at the house and how
he had gotten there. Lopez responded that he had driven from Mexico the previous Sunday in a
white Ford pickup truck; he then volunteered the keys to the pickup. At that point, Lopez was
advised of his Miranda rights in Spanish by Lagrange. Immediately thereafter, Slaughter asked
Lopez whether he or Bernal-Bajo had brought any cocaine to the residence. Lopez acknowledged
that he had transported  cocaine. Slaughter and Lagrange then took Lopez to a bedroom for further
questioning,2 3at which time Lopez indicated that he did not want to speak further with the
investigators. No further questioning occurred. Slaughter then went to the garage to assist in an
inspection of the white pickup, where officers   discovered that the drive shaft of the truck had been
hollowed out to accommodate cocaine.4
        Lopez entered a guilty plea conditioned on the outcome of his motion to suppress the
statements. The district court judge, describing the characterization of the pre-Miranda questions
as the “key factor” in the case, held that the initial interaction was not an “interrogation.” Dist. Ct.
Op. at 2. The judge’s description of the initial questions as “relatively innocuous” and only
important with the benefit of “20/20 hindsight” informed this ruling. Id. As a result, “the additional
questions asked and answered after the Miranda warning [were] not subject to suppression under
Seibert.” Id. at 3.

         1
          Only DEA Officer Mark Slaughter and Kentucky State Trooper Albert Lagrange, who served as the translator,
were actually present during the questioning. DEA Special Agent Brian Bester, who was the lead agent on the case, was
not present, but testified based on a second-hand account.
         2
             The officers suspected that Bernal-Bajo might be trying to intimidate Lopez and thus took him to the bedroom.
         3
           The record is unclear whether Lopez specifically invoked his right to silence, or merely indicated that he did
not wish to speak further to the investigators.
         4
             The cocaine purchased at Clay Street was in a cylindrical shape corresponding to the drive shaft.
No. 07-5408                    United States v. Pacheco-Lopez                                                 Page 3


        Lopez filed a timely appeal and argues that the initial questions did constitute an
“interrogation” and that the answers, along with the subsequent, post-Miranda statements, should
be suppressed.
                             II. Interrogation and the "Booking Exception"
        In cases involving a motion to suppress, this Court reviews the district court’s factual
findings for clear error and its legal conclusions de novo. United States v. Meyer, 359 F.3d 820, 824
(6th Cir. 2004). Additionally, when reviewing a district court’s denial of a motion to suppress, we
review the evidence in the light most favorable to the United States. United States v. Erwin, 155
F.3d 818, 822 (6th Cir. 1998).
        Before the police may interrogate a suspect in custody,5 they must first read the Miranda
warnings. Miranda v. Arizona, 384 U.S. 436 (1966). An “interrogation” comprises “not only []
express questioning, but also any words or actions on the part of the police that the police know are
reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446
U.S. 291, 301 (1980). Miranda warnings are not, however, required for questions “reasonably
related to the police’s administrative concerns,” such as the defendant’s name, address, height,
weight, eye color, date of birth and current address. Pennsylvania v. Muniz, 496 U.S. 582, 601
(1990); United States v. Clark, 982 F.2d 965, 968 (6th Cir. 1993) (“ordinarily . . . the routine
gathering of6 biographical data for booking purposes should not constitute interrogation under
Miranda”). This “booking exception” to Miranda requires the reviewing court to carefully
scrutinize the facts, as “[e]ven a relatively innocuous series of questions may, in light of the factual
circumstance and the susceptibility of a particular suspect, be reasonably likely to elicit an
incriminating response.” United States v. Avery, 717 F.2d 1020, 1025 (6th Cir. 1983). Where the
booking exception does not apply to statements made before administration and voluntary waiver
of Miranda rights, those statements are “irrebuttably presumed involuntary” and must be suppressed.
United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005) (citing Oregon v. Elstad, 470 U.S.
298, 307 (1985)).
        This case requires further delineation of the line between questions relating to the processing
of an arrest that are biographical and questions of an investigatory nature. The latter, but not the
former, constitute “interrogation” and implicate the Fifth Amendment and the attendant Miranda
warning requirement. Compare Avery, 717 F.2d at 1024 (question was part of a “routine procedure
to secure biographical data” and thus not interrogation), and United States v. King, 156 F.3d 29 (6th
Cir. 1998) (per curiam) (holding that a defendant’s response to a question about his address was not
protected by Miranda, notwithstanding the fact that police made use of the statement, because it was
not intended to elicit incriminating statements), with United States v. Soto, 953 F.2d 263 (6th Cir.
1992) (per curiam) (suppressing a response to a question about what a defendant was doing with
drugs), and United States v. Cole, 315 F.3d 633, 636 (6th Cir. 2003) (suppressing defendant’s initial
response to the question, “Whose gun is this?” but denying the motion to suppress later, voluntary
statements), and United States v. Downing, 665 F.2d 404 (1st Cir. 1981) (suppressing a question
regarding the location of an airplane).
        Lopez’s pre-Miranda statements cannot be described as merely biographical, but instead
resulted from an interrogation subject to the protections of Miranda. Some of the initial questions
would not – in isolation – implicate Miranda; at the very least, asking the defendant his name is the


        5
            The government does not contest the fact that Lopez was in custody during the period of time at issue.
        6
          The Sixth Circuit adopted the equivalent of a “booking exception” before the Supreme Court officially
recognized as much in Pennsylvania v. Muniz. See United States v. Avery, 717 F.2d 1020 (6th Cir. 1983).
No. 07-5408                    United States v. Pacheco-Lopez                                                    Page 4


type of biographical question permitted under the booking exception. But asking Lopez where he
was from, how he had arrived at the house, and when he had arrived are questions “reasonably likely
to elicit an incriminating response,” thus mandating a Miranda warning. The fact that Officer
Slaughter did not actually know that Lopez was involved in criminal activity does not affect our
analysis. The officers who questioned Lopez did know that the shipment of cocaine involved in the
arranged buy had arrived from outside the state during the previous week. Consequently, asking
questions about when and how Lopez arrived at a household ostensibly linked to a drug sale, as well
as his origin, are relevant to an investigation and cannot be described as related only to securing the
house or identifying the defendant. Furthermore, the officers immediately ascertained that Lopez
did not speak English and learned shortly thereafter that he was from Mexico, factors making him
“particularly susceptible” to questioning before Miranda warnings. These facts implicate Miranda’s
concern about the danger of coercion resulting from “the interaction of custody and official
interrogation.” See Illinois v. Perkins, 496 U.S. 292, 296 (1990) (discussing the purpose of Miranda
and contrasting a situation where a defendant does not “feel compelled to speak by the fear of
reprisal for remaining silent”).
        The location, the nature of the questioning and the failure to take notes or document the
defendant’s identity also support our conclusion that the booking exception is not applicable in this
case. In the majority of cases where we have applied the booking exception, see,    e.g., Avery, 717
F.2d 1020, we have done so for questioning that occurred at the police station.7 Application of the
booking exception is most appropriate at the station, where administrative functions such as
bookings normally take place. Extending the exception to the type of questioning here – which
occurred in a private home during the investigatory stage of criminal proceedings – would
undermine the protections that Miranda seeks to afford to criminal suspects. Additionally, situations
subject to the booking exception usually involve active documentation of a defendant’s answers,
whereas none of the officers who questioned Lopez recorded any of his responses. Such
documentation – including arrest-related paperwork or notes – would be expected during
questioning about a defendant’s background, as the purpose of such inquiry is to gather sufficient
data to identify the defendant (i.e. for record-keeping). Here, no documentation occurred,
supporting our conclusion that the questions were part of an investigatory interrogation.
        Lopez’s initial statements resulted from a “custodial interrogation,” not biographical
questioning subject to the booking exception; consequently, his Miranda rights were implicated
before the police actually read the warning. Because the police did not administer the Miranda
warning for these initial questions, the answers are “presumed compelled” and “excluded at trial
in the State’s case in chief.” Oregon v. Elstad, 470 U.S. 298, 317 (1985).
                                III. Miranda-in-the-Middle Interrogations
       Midway through the interrogation, the police officers read Lopez his Miranda rights in
Spanish. Immediately thereafter, they asked him whether he had brought cocaine with him from
Mexico, to which he responded in the affirmative. The district court ruled that this statement should
be admitted because it found that the earlier line of questioning did not constitute an interrogation.
See Missouri v. Seibert, 542 U.S. 600, 608-09 (2004) (administering Miranda warning before a
suspect makes a custodial confession admissible so long as there was proper waiver). Because this
conclusion was incorrect, and the earlier statements must be suppressed, the question then becomes
whether Lopez’s later, post-Miranda statement should similarly be suppressed or whether it is

         7
            We did extend the reasoning in Avery to a location outside of the police station in an unpublished opinion,
United States v. Garcia-Torres, 1 Fed. Appx. 294 (6th Cir. 2001). In Garcia-Torres, the defendant produced a fake
identification card after the officer requested identification pursuant to a valid Terry stop. The Court denied the
defendant’s motion to suppress this evidence, holding that because the officer had no reason to suspect that the defendant
possessed a fake ID card, the request was “not reasonably likely to elicit an incriminating response.” Id. at 299.
No. 07-5408                      United States v. Pacheco-Lopez                                                     Page 5


admissible in the prosecution’s case-in-chief. The Supreme Court’s two principal cases addressing
midstream Miranda warnings both compel our conclusion that Lopez’s post-warning statements
must be suppressed. Compare Seibert, 542 U.S. at 611-12 (focusing on whether the midstream
warning was “effective”) (plurality opinion), with Elstad, 470 U.S. at 310 (analyzing whether the
latter statement was voluntary, an inquiry based on whether the taint of the earlier compelled
statements dissipated through the passing of time or changed circumstances).
        In Seibert, the Supreme Court addressed an interrogation technique wherein the police first
purposefully interrogated an unwarned   suspect, then apprised her of her Miranda rights, and finally
asked similar questions again.8 Specifically, the defendant mother, whose 12-year-old son suffered
from cerebral palsy and died in his sleep, feared prosecution and chose to conceal the death by
burning the family’s mobile home and incinerating the body. To avoid the appearance that the son
had been left unattended, the defendant arranged for Donald Rector, a mentally ill teenager living
with the family, to stay in the house. Donald then died in the fire. Five days later, the police
questioned Seibert at a hospital. On specific instructions from headquarters, the investigating police
officer refrained from giving Miranda warnings when he first interrogated Seibert. After more than
30 minutes of questioning, during which time the officer repeatedly referenced Donald’s death,
Seibert admitted that she knew that Donald would die in the fire. Seibert then received a 20 minute
coffee break. Upon her return, the officer read her Miranda warning, turned on a tape recorder, and
then proceeded to ask the same questions. Seibert ultimately confessed to Donald’s death.
         Five justices agreed to suppress both the pre- and post-Miranda statements, while four
dissenting justices thought both statements were permissible under the Court’s earlier, voluntariness
test espoused in Oregon v. Elstad. Of the five justices who reached the same result, a plurality of
four framed the underlying issue as follows: the “threshold question in [such a] situation is whether
it would be reasonable to find that the warnings could function ‘effectively’ as Miranda requires.”
Seibert, 542 U.S. at 612 (emphasis added). The effectiveness inquiry focused, in turn, on whether
the suspect “had a real choice about giving an admissible statement at that juncture.” Id. “For
unless the warnings could place a suspect who has just been interrogated in a position to make such
an informed choice, there is no practical justification for accepting the formal warnings as
compliance with Miranda, or for treating the second stage of the interrogation as distinct from the
first, unwarned and inadmissible segment.” Id. (emphasis added). The plurality believed that the
warnings in Seibert’s case did not operate effectively and identified five factors, discussed infra, that
must be analyzed to ensure that such9 a warning is effective in every situation where police
administer Miranda mid-interrogation. Id. at 615.
        In a concurring opinion, Justice Kennedy similarly disproved of the two-step process at issue
in the case, noting that it would “allow police to undermine [the Miranda rule’s] meaning and
effect,” but rejected the plurality’s test and instead limited his critique to two-step situations where
the “technique is used in a calculated way to undermine the Miranda warning.” Id. at 622
(Kennedy, J., concurring). According to Justice Kennedy, any              statements resulting from an
intentional ask first, question later technique must be suppressed.10 In all other cases, Elstad – with
its focus on the voluntariness of both the pre- and post-Miranda statements – would continue to
control the analysis. Id. The four dissenting justices in Seibert rejected application of a new test

         8
           As the Fourth Circuit explained, an initial statement preceding the Miranda warning is “presumed
involuntary.” Consequently, the issue is “whether those initial, unwarned statements rendered involuntary the statements
[] made after receiving and waiving Miranda rights. United States v. Mashburn, 406 F.3d 303, 306 (4th Cir. 2005).
         9
             By applying the test in every instance, the plurality opinion in Seibert limits the Elstad holding to its facts.
         10
            Resolution of whether the police purposefully sought to evade Miranda is unnecessary, as Lopez’s
statements are inadmissible even if the police didn’t purposefully implement a question first-warn later strategy.
No. 07-5408                   United States v. Pacheco-Lopez                                                  Page 6


and simply applied Elstad, finding that the later statements were sufficiently voluntary. We believe
that Lopez’s statements must be excluded under both Seibert and Elstad.11
         According to the Seibert plurality, the relevant factors for determining whether a midstream
Miranda warning could be effective are: (1) the completeness and detail involved in the first round
of questioning; (2) the overlapping content of the statements made before and after the warning;
(3) the timing and setting of the interrogation; (4) the continuity of police personnel during the
interrogations; and (5) the degree to which the interrogator’s questions treated the second round as
continuous with the first. Seibert, 542 U.S. at 615. The results of the effectiveness inquiry inform
the subsequent analysis: “If yes [to the question of effective warning], a court can take up the
standard issue of voluntary waiver and voluntary statement; if no, the subsequent statement is
inadmissible for want of adequate Miranda warnings, because the earlier and later statements are
realistically seen as parts of a single, unwarned sequence of questioning.” Id. at 612 (emphasis
added). An analysis of the sequence of events surrounding Lopez’s interrogation compel our
conclusion that the warning was ineffective, and that his statements were thus the result of a single,
unwarned sequence of questioning.
         The third, fourth and fifth factors, in particular, inform our determination that the warning
in this case was ineffective, as the same officers conducted the interrogation in the same location
without any break between the two sets of questions. The interrogation was continuous – the break
only lasted for the amount of time it took the investigators to read Lopez the Miranda warning. In
such a situation, administration of the Miranda warning could not lead a suspect to a meaningful
understanding that he could cease answering the questions at that point in time. Lopez’s
interrogation thus implicates the exact problem described by the Supreme Court Seibert: “Unless
the warnings could place a suspect who has just been interrogated in a position to make [] an
informed choice, there is no practical justification for accepting the formal warnings as compliance
with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned
and inadmissible segment.” 542 U.S. at 612 (emphasis added). There was no break in the
questioning or any effort by the police to ensure that Lopez understood that his prior statements
could not be used against him; consequently, we believe that any suspect in Lopez’s situation would
have viewed the two series of questions as part of one sequence.
        The first and second factors of the plurality’s test also support our finding that the warning
was ineffective. While the exact questions did not overlap, the post-Miranda question resulted from
the knowledge gleaned during the initial questioning – that Lopez had driven from Mexico to
Kentucky (i.e. from a country serving as a cocaine conduit to a state where no cocaine is produced),
via pickup truck, during the preceding week. That is, the question regarding the transportation of
cocaine was not anomalous, which might support a finding that the warning was effective, but was
the next logical question based on the earlier statements. 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.
       Our dissenting colleague suggests that Lopez’s decision to stop talking after his confession
revealed that the warning was effective: “by invoking his right to silence” the defendant conveyed


         11
             Because the Supreme Court divided 4-1-4 in Seibert, there has been some confusion about whether the
plurality or concurring opinion controls. Most circuits have assumed that Justice Kennedy’s concurrence operates as
the controlling precedent, though others have raised doubts about whether his concurrence actually represents the
narrowest grounds for decision. See United States v. Carrizales-Toledo, 454 F.3d 1142, 1151 (10th Cir. 2006)
(describing the problem with adopting Justice Kennedy's approach); United States v. Rodriguez-Preciado, 399 F.3d 1118,
1139-42 (9th Cir. 2005) (Berzon, J., dissenting) (describing how a court should not adopt Justice Kennedy's opinion and
might instead choose to apply the plurality's test). We do not need to resolve this issue because regardless of the
applicable framework Lopez’s statement must be suppressed.
No. 07-5408                    United States v. Pacheco-Lopez                                                    Page 7


his understanding of his Miranda rights in the “clearest, most unequivocal way possible.” Dis. Op.
at 2. As noted supra, the record is ambivalent as to whether the defendant specifically invoked his
right to silence as an exercise of his Miranda rights or merely indicated that he did not want to speak
further to investigators.12 It is not difficult to imagine reasons for why Lopez ceased talking after
he was taken to the bedroom, none of which relate to the effectiveness of the Miranda warning with
regards to the earlier statement. Perhaps, as Officer LaGrange stated at the suppression hearing,
Lopez stopped speaking because Bernal-Bajo “was giving him the look” and trying to intimidate
him. JA 74. The facts of this case are distinguishable     from the two cases – both of which discuss
the issue of waiver and not effectiveness13 – upon which the dissent relies for the proposition that
the invocation of the right to silence necessarily indicates that the defendant understood those rights.
See United States v. Allen, 247 F.3d 741, 766 (8th Cir. 2001); Pickens v. Gibbons, 206 F.3d 988, 995
(10th Cir. 2000). In finding a voluntary waiver, the Eight Circuit in Allen noted that the defendant
“initiated the request to speak” with the officer, had been warned of his rights four times, and had
specifically “indicated that he understood [his rights]” prior to confessing. Id. The case is hardly
analogous to the present situation. In the instant case, Lopez received the warning only once and
did not initiate any of the interactions with the investigators; moreover, the record is ambivalent as
to whether he even understood those rights. The dissent’s use of retrospection to find an effective
warning is also directly contrary to the Supreme Court’s admonition that courts should “presume
that a defendant did not waive his rights [and that] the prosecution’s burden is great” to demonstrate
such a waiver. North Carolina v. Butler, 441 U.S. 369, 373 (1979). In Pickens, the Tenth Circuit
emphasized that the defendant had, prior to his confession, demonstrated that he understood his
rights: “[the defendant’s] initial refusal to make a statement and his request for an attorney indicate
he understood . . . both the nature and consequences of his right to remain silent and his right to
counsel.” Pickens, 206 F.3d at 996 (internal quotations omitted). In the instant case, Lopez’s
confession occurred before the interaction in which the defendant purportedly indicated his
understanding of his rights.
        Equally important, looking at the defendant’s decision to stop speaking (which he conveyed
in the bedroom rather than the kitchen – i.e. under different circumstances) presents an issue that is
not before us. That is, the thrust of the effectiveness inquiry focuses on whether the defendant had
a choice “at [the] juncture” of the statement, Seibert, 542 U.S. at 611-12, not on whether the
defendant’s later behavior casts retrospective insight into his state of mind at the time of the
statement. Had Lopez confessed in the bedroom or specifically invoked his right to silence after
further explanation by police, then perhaps the effectiveness issue would be a slightly closer call.
See id. at 615 (“In Elstad, it was not unreasonable to see the occasion for questioning at the station
house as presenting a markedly different experience . . . [and] the Miranda warnings could have
made sense as presenting a genuine choice whether to follow up on the earlier admission.”). But
in this case, the Miranda warning was given literally in the middle of questioning, a situation that
is “likely to mislead and ‘deprive a defendant of knowledge essential to his ability to understand the
nature of his rights and the consequences of abandoning them.’” Id. at 613-14 (quoting Moran v.
Burbine, 475 U.S. 412, 424 (1986)). To hold otherwise elevates form over substance by treating
“two spates of integrated and proximately conducted questioning as independent interrogations
subject to independent evaluation simply because Miranda warnings formally punctuate them in the
middle.” Id. at 614. Additionally, adopting the dissent’s position risks undermining important

         12
             Officer Slaughter, whose testimony the district court found most reliable, stated simply that “Mr. Lopez
stated that he did not wish to say anything to investigators” and that he “basically said he didn’t want to say anything.”
JA 60-61. Testimony by Officer LaGrange, on the other hand, indicated that the “basic was he [Lopez] just said, no,
he wanted to consult with an attorney.” JA 74.
         13
            As discussed supra, the Seibert plurality explained that where a warning is ineffective, the defendant cannot
waive his rights. Hence, the issue of voluntariness does not arise. See 542 U.S. at 612 (describing how voluntariness
issues are only addressed where the warning was effective).
No. 07-5408                    United States v. Pacheco-Lopez                                                    Page 8


constitutional rights through retrospective inferences, a result the Supreme Court has previously
rejected in the context of Miranda. Cf. Smith v. Illinois, 469 U.S. 91, 98 (1984).
        Lopez’s statement must similarly be suppressed under the Supreme Court’s earlier opinion
in Oregon v. Elstad.14 As the dissenting justices in Seibert explained, Elstad requires that “if [a
suspect’s] first statement is shown to have been involuntary, the court must examine whether the
taint dissipated through the passing of time or a change in circumstances.” Seibert 542 U.S. at 665
(citing Elstad, 470 U.S. at 310) (emphasis added). Elstad thus requires that “[w]hen a prior
statement is actually coerced, the time that passes between confessions, the change in place of
interrogations, and the change in identity of the interrogators all bear on whether that coercion has
carried over into the second confession.” Elstad, 470 U.S. at 310. When reviewing Lopez’s
confession, all three of these factors suggest a finding that the coercion has carried over. As
discussed supra, there was no change in the time or place of the interrogation, or the identity of the
interrogators. Further, when determining voluntariness, “the finder of fact must examine the
surrounding circumstances and the entire course of police conduct with respect to the suspect in
evaluating the voluntariness of his statements.” Id. at 318. Here, there is insufficient evidence in
the record that Lopez was aware that his earlier confession would not be admissible against him, nor
do the circumstances   suggest that the second confession was separate from the first confession in
any way.15
         Accordingly, Lopez’s post-Miranda statements must be suppressed.
                                                          IV.
       For the foregoing reasons, the district court’s opinion is REVERSED, and the defendant’s
motion to suppress GRANTED.




         14
            The four dissenting justices in Seibert continued to adhere to the Oregon v. Elstad analysis. In addition,
Justice Kennedy wrote in Seibert that any statement resulting from a deliberate two-step process aimed at evading
Miranda must be suppressed. Seibert, 542 U.S. at 622 (Kennedy, J. concurring). In all other situations, “[t]he
admissibility of postwarning statements should continue to be governed by the principles of Elstad.” Id. Here, we
assume arguendo that the government did not deliberately seek to evade Miranda, and that Elstad would thus control
under Justice Kennedy’s concurrence.
         15
             The Supreme Court has clearly distinguished between (1) effectively “giving the warnings and [2] getting
a waiver.” Seibert, 542 U.S. at 608-09. The two are not the same. We pretermit the issue regarding the application of
the standards for “getting a waiver” of the Fifth and Sixth Amendment rights protected by Miranda.
          The Supreme court has set a high standard of proof for the waiver of constitutional rights, a standard requiring
that courts should “‘indulge every reasonable presumption against waver’ of fundamental constitutional rights. Johnson
v. Zerbst, 304 U.S. 458, 464 (1938). “Doubts must be resolved in favor of protecting the constitutional claim.” Michigan
v. Jackson, 475 U.S. 625, 633 (1986). Where “the interrogation continues without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda, 384 U.S. at 475.
No. 07-5408                    United States v. Pacheco-Lopez                                                  Page 9


                                                _______________
                                                   DISSENT
                                                _______________
        GRIFFIN, Circuit Judge, dissenting. I concur in the result of the majority’s ruling that two
of defendant Pacheco-Lopez’s initial statements, made before he received Miranda warnings, should
be suppressed. I agree with the majority that defendant’s statements of when he arrived at the house
and how he1got there were the products of custodial interrogation and not subject to the “booking
exception.” However, in evaluating the booking exception, I do not join the majority’s focus and
obiter dictum regarding the heightened importance of a stationhouse location and recordation. In
this regard, I reiterate that the booking exception applies if, under the totality of the circumstances,
the questions and/or police activities are “normally attendant to arrest and custody” and are not
“reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446
U.S. 291, 301 (1980).
        I respectfully dissent from the majority’s de novo fact-finding and suppression of Pacheco-
Lopez’s second group of statements. Regarding this “Miranda-in-the-middle” issue, the majority
misapplies, both legally and factually, Missouri v. Seibert, 542 U.S. 600 (2004) and Oregon v.
Elstad, 470 U.S. 298 (1985). First, regarding the legal standard, because there was not an opinion
of the Court in Missouri v. Seibert, and five Justices did not agree on a rationale, “the holding of the
Court may be viewed as that position taken by those Members who concurred in the judgments on
the narrowest grounds . . . .” Marks v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v.
Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion by Stewart, Powell, and Stevens, JJ.)).
        Applying the Marks “narrowest grounds” rule, I would hold that Seibert does not overrule
Elstad, but creates an exception to it for cases in which the police intend to evade the safeguards of
Miranda by deliberately employing a two-step strategy. Our sister circuits have so held. See United
States v. Carter, 489 F.3d 528, 535-36 (2d Cir. 2007); United States v. Street, 472 F.3d 1298, 1312-
13 (11th Cir. 2006); United States v. Courtney, 463 F.3d 333, 338 (5th Cir. 2006); United States v.
Williams, 435 F.3d 1148, 1157 (9th Cir. 2006); United States v. Kiam, 432 F.3d 524, 531-33 (3d Cir.
2006); and United States v. Stewart, 388 F.3d 1079, 1090 (7th Cir. 2004). Indeed, Justice Kennedy,
who concurred in the judgment, only, in Missouri v. Seibert, and provided the fifth vote for reversal,
would continue to apply the voluntariness test of Oregon v. Elstad absent this showing. Seibert, 542
U.S. at 620 (“[t]he admissibility of postwarning statements should continue to be governed by the
principles of Elstad unless the deliberate two-step strategy was employed.”) (Kennedy, J.,
concurring).
         As the Seventh Circuit stated in Stewart, 388 F.3d at 1090:
         In Justice Kennedy’s view, however, an inquiry into change in time and
         circumstances between the prewarning and postwarning statements – what he called
         “curative steps” – is necessary only in cases involving the deliberate use of a two-
         step interrogation strategy calculated to evade the requirements of Miranda. Justice
         Kennedy thus provided a fifth vote to depart from Elstad, but only where the police
         set out deliberately to withhold Miranda warnings until after a confession has been
         secured. Where the initial violation of Miranda was not part of a deliberate strategy
         to undermine the warnings, Elstad appears to have survived Seibert.


         1
           In my view, defendant’s responses to the first two questions asking him for his name and address (“where they
lived”) are covered by the “booking exception.” See Pennsylvania v. Muniz, 496 U.S. 582, 601 (opinion by Brennan,
J.) (1990). To the extent that the majority rules otherwise, I respectfully dissent.
No. 07-5408                    United States v. Pacheco-Lopez                                              Page 10


        In the present case, the district court did not make factual findings regarding the
voluntariness of defendant’s pre- and post-Miranda statements pursuant to Elstad, and similarly
failed to rule whether the police intended to evade Miranda by deliberately employing a two-step
strategy, and, if so, whether defendant’s Miranda warnings were effective. Because the record on
appeal is inadequate, I would remand for a hearing and findings on these disputed issues of material
fact. See Williams, 435 F.3d at 1161-62; Stewart, 388 F.3d at 1091-92. See also Elstad, 470 U.S.
at 318; United States v. Tyler, 164 F.3d 150, 158 (3d Cir. 1998); and United States v. McCurdy, 40
F.3d 1111, 1118 (10th Cir. 1994).
        Regarding the law, the majority clearly errs by applying the Seibert (plurality opinion)
“effectiveness” factors in the absence of a factual finding that the police deliberately attempted to
evade the safeguards of Miranda. Without this limitation set forth in Justice Kennedy’s
concurrence, Justice Souter’s plurality opinion is nothing more than the views of four Justices.
Thus, by itself, the Seibert plurality opinion is not precedentially binding. All of our sister circuits
that have addressed this issue agree. Nonetheless, the majority applies Justice Souter’s opinion as
if it were precedent without the restriction of Justice Kennedy’s concurrence. Moreover, the
majority has impermissively engaged in de novo factfinding, which is normally the province of the
trial court.
         Finally, the majority refuses to acknowledge that the present case is factually distinguishable
from both Oregon v. Elstad and Missouri v. Seibert. Elstad and Seibert were cases in which the
defendants revealed inculpatory evidence as a result of a custodial interrogation conducted before
the administering of their Miranda rights. In both cases, the defendants subsequently reiterated the
earlier information after receiving Miranda warnings. However, in neither case did the defendant
invoke his right to remain silent. In such instances, it is obviously difficult to determine whether
the accused made an informed choice to confess or whether he believed his second confession was
a continuation of the earlier, improper interrogation. Here, unlike Patrice Seibert or Michael Elstad,
defendant Pacheco-Lopez exercised his right to silence after receiving Miranda rights. The plurality
opinion in Seibert sets forth factors to be evaluated by the trial courts when the factual question of
the effectiveness of the “Miranda-in-the-middle” warnings is in doubt. The ultimate objective is
to determine whether the Miranda warnings were, in fact, effective. As Justice Souter stated:
       The threshold issue when interrogators question first and warn later is thus whether
       it would be reasonable to find that in these circumstances the warnings could
       function “effectively” as Miranda requires. Could the warnings effectively advise
       the suspect that he had a real choice about giving an admissible statement at that
       juncture? Could they reasonably convey that he could choose to stop talking even
       if he had talked earlier?
Seibert, 542 U.S. at 611-12.
        In the present case, the answer to the above questions appears to be “yes.” The majority
contends that the record is unclear regarding whether Pacheco-Lopez invoked his right to silence
or merely stated that he did not wish to speak to police further. However, the Supreme Court has
directed that invocations of Miranda rights be interpreted broadly, and that upon a defendant’s
assertion of the right to remain silent “in any manner” questioning must immediately cease.
Miranda v. Arizona, 384 U.S. 436, 444 (1966). Therefore, in the present case, it appears
unnecessary to conduct a searching review of2 the circumstantial evidence to determine whether the
warnings were effective to Pacheco-Lopez. Indeed, by invoking his right to silence, defendant
Pacheco-Lopez conveyed this understanding in the clearest, most unequivocal way possible that he


       2
           At a minimum, the trial court should make findings on these factual issues before our review on appeal.
No. 07-5408                    United States v. Pacheco-Lopez                                                   Page 11


understood his right to do so. See United States v. Allen, 247 F.3d 741, 766 (8th Cir. 2001) (noting
that defendant’s invocation of his right to counsel is “strong evidence” that defendant understood
his rights), vacated on other grounds by 536 U.S. 953 (2002); see also Pickens v. Gibson, 206 F.3d
988, 995 (10th Cir. 2000) (citing Cooks v. Ward, 165 F.3d 1288-89 (10th Cir. 1998)) 3(noting that
invocation of a Miranda right demonstrates a defendant’s understanding of that right). In light of
his invocation of his right to remain silent, suppression of Pacheco-Lopez’s post-Miranda statements
can only arise from a perfunctory application of ill-fitting caselaw without regard to the factual
realities of this case.
         The majority argues that “the thrust of the effectiveness inquiry focuses on whether the
defendant had a choice “‘at [the] juncture’ of the statement, not whether the defendant’s later
behaviors cast retrospective insight into his state of mind at the time of the statement.” This
statement underscores the majority’s misunderstanding of how, on its facts, this case differs
critically from Seibert and Elstad. The very purpose of analyzing the Seibert factors is to marshal
circumstantial evidence, such as: location of the questioning; the time elapsed between warnings;
and change in questioners, in order to ascertain whether the defendant, or a hypothetical reasonable
proxy, would be able to make an informed choice regarding his right to remain silent. Under this
approach, we attempt to approximate what the defendant could understand only because we typically
do not know what the defendant did understand. The present case, however, offers that rare window
into a defendant’s mind that allows us to answer this latter question. Apparently, the warning was
effective because Pacheco-Lopez invoked his right to silence. Thus, there appears to be no reason
to substitute circumstantial assumptions for this direct evidence.
        My colleagues might have a plausible argument had Pacheco-Lopez never invoked his right
to silence. Similarly, if defendant had received a second Miranda warning after his post-Miranda
inculpatory statements and then invoked his right to silence, a question might arise whether
Pacheco-Lopez understood his rights when he made the statements admitting his guilty conduct.
But when, as here, there was a single Miranda warning, and the defendant invoked his right to
remain silent after this warning, the most reasonable inference is that defendant understood his right
to remain silent.
        For these reasons, I respectfully dissent. I would vacate the district court’s order and remand
to the trial court for a new suppression hearing and factual findings essential for our informed
resolution of the Elstad and Seibert issues. I would not assume the role of factfinder but defer to the
trial court’s superior abilities in this regard.




         3
           The majority asserts that these cases are inapposite because they decided the question of whether the defendant
waived his right to remain silent. However, in order to validly waive one’s right to silence, one must first understand
that right. Sanchez-Llamas v. Oregon, 548 U.S. 331 (noting that “a defendant’s waiver of his Miranda rights must be
voluntary, knowing, and intelligent, i.e., ‘the product of a free and deliberate choice . . . made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision to abandon it.’”) (Ginsburg, J.,
concurring) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). Accordingly, while these cases address the larger
issue of waiver, these holdings are applicable regarding the subsumed issue of what constitutes evidence of
understanding of one’s Miranda rights.
