Reading the Supreme Court Tea Leaves on “Question First, Warn Later”

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Wass v. Idaho, (U.S. 2018), denying certiorari in State v. Wass, 396 P.3d 1243 (Idaho 2017)

Shawn Wass failed his in petition for certiorari to the U.S. Supreme Court. First, a note about what this case means to the legal community and why Wass still goes to jail without passing “Go.” Second, what is the Court signaling, if anything, to cops?

An officer found Wass standing behind a car parked in a closed parking area in the early morning hours. Grace Stanbery was sitting in the passenger seat of the car. The officer asked Wass whether there was anything illegal in the car, to which Wass replied there was not. The officer then asked both Wass and Stanbery for consent to search the car and both refused.

Subsequently, the officer discovered there were two arrest warrants for Wass, so the officer placed him under arrest. After arresting Wass, but before giving any Miranda warnings, the officer again asked Wass whether there was anything illegal in the car. This time Wass admitted there were syringes in the car.

The officer instantly realized he made a mistake by interrogating Wass after taking him into custody and failing to provide a Miranda warning and obtain a waiver. The officer provided a warning to Wass, now handcuffed and seated in the police car. Wass agreed to talk to him and repeated there were syringes in the car. The officer then searched the car and found a spoon with white residue, three syringes and other injection paraphernalia, and a bindle with marijuana. One of the syringes contained a white clear liquid that tested positive for methamphetamine.

Some investigators have used an improper technique of asking incriminating questions in a “pre-interrogation” setting. Once the suspect makes incriminating statements, the investigator takes a break and leaves the room. A short time later, the investigator returns, gives a Miranda warning, secures a waiver and obtains further admissions. In Missouri v. Seibert (542 U.S. 600 (2004)), the United States Supreme Court ruled the intentional “question first, Miranda second” technique generally renders an admission or confession inadmissible. But what about a case like Wass’s, where the officer admittedly made a mistake, but didn’t intentionally try to skirt the Constitution? Should confessions be suppressed in those circumstances?

The Idaho Supreme Court held that Wass’s statements, though made after a technical violation of the Miranda rule, were admissible. Though that decision may seem contrary to the direction of the United States Supreme Court, it isn’t. Here’s why: The decision in Missouri v. Seibert is a plurality decision, not a majority decision. Justice Souter wrote the opinion ruling that any “question first, warn later” interrogation technique violates the Constitution. But he was joined by only three other justices.

So, why does a four-justice opinion carry the day? Justice Kennedy agreed with the result of the particular case of Missouri v. Seibert. But he wrote a separate opinion stating he “would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.”

Thus, the narrowest reading of Missouri v. Seibert is that a confession obtained by an officer who is intentionally trying to avoid the Miranda rules is inadmissible, but a confession obtained after a mistaken failure to warn a suspect of Miranda rights may be admissible, depending on the circumstances. Marks v. United States (430 U.S. 188 (1977)) tells lower courts they should generally follow the narrowest possible rule from a decision by a fragmented Supreme Court.

The Idaho Supreme Court held that the officer in Wass’s case made a truly innocent error and that he then properly corrected the error by administering a warning, obtaining a waiver and asking questions in a proper manner.

So, what does this mean for cops? In several federal circuit courts of appeals, judges have already held the “question first, warn later” technique may not be fatal to admission of a confession when officers do not intentionally break the rules (United States v. Williams (435 F.3d 1148 (9th Cir. 2006)); United States v. Courtney (463 F.3d 333 (5th Cir. 2006)); United States v. Kiam (432 F.3d 524 (3rd Cir. 2006)); United States v. Mashburn (406 F.3d 303 (4th Cir. 2005)); United States v. Briones (390 F.3d 610 (8th Cir. 2004)); United States v. Stewart (388 F.3d 1079 (7th Cir. 2004))). But other courts disagree and take a harsh line in any “question first, warn later” case, even one where the officer makes an error and quickly corrects it.

One can fairly read the Supreme Court’s declination to address a split between court interpretations of Missouri v. Seibert as a quiet, tacit endorsement of Justice Kennedy’s opinion. The Court composition has changed since Missouri v. Seibert, including the addition of two Democratic appointees, Justices Sotomayor and Kagan. Remember, too, that Justice Kennedy participated in the decision to deny review of Wass v. Idaho. This isn’t an earthshaking development, but it reinforces that brazen “question first, warn later” techniques intended to thwart the Miranda process remain unconstitutional, while honest technical mistakes may not doom an otherwise valid confession.

Ken Wallentine

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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