Incriminating Statements Post-Miranda Warning Ruled Admissible

by | May 26, 2021

United States v. Guillen, 2021 WL 1623353 (10th Cir. 2021)

While his ex-girlfriend was at a high school graduation, Ethan Guillen snuck into her room and placed a pressure cooker bomb, loaded with six pounds of black powder, napalm, and shrapnel such as nuts and bolts, under her bed. Though a timer rigged to a soldering iron was set to detonate the bomb, the timer failed. When asked, the intended victim said the only person who might want to kill her was her ex-boyfriend, Ethan Guillen.

Four officers, including local police and federal ATF agents, went to the Guillen residence. When they knocked, Ethan and his older brother, Tyler Guillen, opened the front door. The officers asked if they could come inside and talk. Tyler agreed, but Ethan asked if the officers had a warrant. They did not. Tyler and Ethan spoke, and Ethan said, “Sure.” Tyler put his hand on Ethan’s shoulder and both brothers moved aside. The officers entered and conducted a protective sweep of the house.

Two officers spoke with Ethan in the kitchen, while the other two spoke with Tyler in the hallway. After a few minutes, the boys’ father, Reynaldo Guillen, arrived. The officers asked Reynaldo about having a pressure cooker and a soldering iron. He said he recently bought a pressure cooker for Ethan and he asked Ethan where it was. Ethan told Reynaldo that it was at his mother’s house. Reynaldo called his ex-wife to ask whether she had the pressure cooker. She said she did not know where the pressure cooker was located. Ethan then changed his story and said the pressure cooker was at the home of a recently deceased uncle.

Reynaldo told officers that he owned the house and gave his consent to search the house, including Ethan’s room. The officers asked Reynaldo if he owned a soldering iron and he said he did. He was unable to find it; the officers, searching the house, couldn’t find it either. The officers found evidence in Ethan’s bedroom connecting Ethan to the pressure cooker bomb, including white duct tape matching the tape on the bomb. The officers laid the evidence in front of Ethan and asked whether he made the bomb. He said, “Yes, I made it.”

The officers then recited Miranda warnings and Ethan gave detailed information about making the bomb. The only question that Ethan would not answer was whether he planned to make another bomb to kill his ex-girlfriend. Ethan told the officers that he didn’t care whether others were killed by his bomb.

Ethan asked the trial court to suppress his incriminating statements and the evidence found in his home. He claimed the officers violated the Fourth Amendment by entering the house and searching without a warrant and without his consent. He also claimed a Fifth Amendment violation because the officers questioned him prior to providing Miranda warnings. The trial court excluded the pre-Miranda statements, but allowed the other incriminating statements. Ethan subsequently pleaded guilty, reserving his right to appeal the trial court’s denial of the rest of his suppression motion.

The court of appeals held that while Ethan initially objected to the officers’ entry into the home, he subsequently consented to the entry by saying, “Sure,” in response to their second request to enter. The appellate court also affirmed that the trial court properly determined Ethan implied consent to the entry by stepping away from the doorway and allowing the officers to enter. Finally, the court held the officers did not coerce Ethan’s consent to enter, even though there were four officers at the door.

Ethan also challenged the validity of his father’s consent to search of the house, including Ethan’s bedroom. The court noted, “An officer may obtain valid consent to search from a third party with either actual or apparent authority over the subject property.” Parents are presumed to have common authority to consent to a search of their child’s room. “The test for apparent authority is objective: Would ‘the facts available to the officer at the moment warrant a person of reasonable caution to believe that the consenting party had authority over the premises?’” Although Tyler testified that Ethan regularly locked his door and Reynaldo testified that he only entered the room with Ethan’s permission, the officers were unaware of those facts and reasonably relied on Reynaldo’s consent to search the house.

After Ethan admitted to making the bomb, the officers immediately provided Miranda warnings and Ethan waived his right to remain silent by offering details about making and placing the bomb.

Ethan argued the officers obtained incriminating statements through coercion and an impermissible two-step interrogation technique. Ethan also claimed all his statements were involuntary and coerced by the officers.

Miranda warnings are required once an individual is in “custody” and subjected to “interrogation.” The court held that Ethan was not in custody. The court first considered whether the circumstances demonstrated a police-dominated atmosphere. Though there were several officers present in the home, Ethan’s brother and father were also present. At one point, his father joined the officers in questioning Ethan. Ethan moved about freely, leaving the room to use the bathroom. Moreover, he was in his home—not a police facility or police car. Next, the court considered the nature and length of the questioning. The questioning was not unduly long. The officers didn’t display any weapons. They did not speak in a threatening tone (talk nice, think mean). The court held the totality of the circumstances established that Ethan was not in custody, at least until the point the officers directly accused Ethan of making the bomb. Thus, the trial court properly excluded the pre-Miranda statements.

After Ethan admitted to making the bomb, the officers immediately provided Miranda warnings and Ethan waived his right to remain silent by offering details about making and placing the bomb. In Oregon v. Elstad (470 U.S. 298 (1985)), the Supreme Court held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Following Elstad, the Supreme Court ruled that an intentional “question first, Miranda second” technique generally renders a confession inadmissible (Missouri v. Seibert, 542 U.S. 600 (2004)). Missouri v. Seibert is a plurality decision, meaning that lower courts should generally follow the narrowest possible rule from the decision (Marks v. United States, 430 U.S. 188 (1977)). Most courts apply the Seibert holding only in cases of an intentional “question first, Miranda second” violation.

In response to Ethan’s claim that the officers deliberately tried to side-step Miranda rules, the court held that their “review of the evidence also leads us to conclude that the agents did not use a two-step interrogation technique ‘in a calculated way to undermine the Miranda warning.’” Thus, the post-Miranda statements were admissible. In response to Ethan’s claim of coercion, the court concluded “that Ethan voluntarily, knowingly, and intelligently waived his Miranda rights.”

After all of Ethan’s efforts, supported by testimony of his father and brother—who no doubt regretted cooperating with the officers—the court held that the trial court properly admitted the evidence from the search and from the post-Miranda interrogation. The court affirmed Ethan’s convictions for possession of an unregistered destructive device and attempt to damage or destroy a building by means of fire or explosive.

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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