CIRCUIT CLARIFIES LAW ON “TWO-STEP” CONFESSION TACTICS

NYLJ 6/13/07


4. CIRCUIT CLARIFIES LAW ON “TWO-STEP” CONFESSION TACTICS

4. So, a couple of ATF agents raid the bakery and find a larder with powder that is not flour. The owner-operator has that glazed look of the deer-in-the-headlights as much as a survivor of a fire, giving the same appearance while sitting on the neighbor’s stoop with his head in his hands. The way he figures it is ‘dead to rights’, see? And despair does funny things to the instinct for self-preservation, loosens inhibitions of the tongue, see?

It is the guido in the leather car-coat with chain-mail on his bush-league chest that matches mustaches over a Neapolitan pout asking, “So, the brown stuff, what’s that?” Real casual, as if an exercise rhetorical, to the wind, to his partner in the jeans ensemble, biker ‘tats on biceps through sleeveless vest, certainly the junkie stand-in for their buy-&-busts.

When the hapless baker answers, “It turned,” he could just as easily be talking about sour milk.

The Stand-in perks up his observation. “Thought it was morphine base. Sometimes you get brown,” adding in with a shrug, like this was an everyday conversation about everyday stuff. Guido can’t believe his luck and so presses it with another. “So, was that it? Pure base?”

Still holding up his heavy hang, the baker muffles, “Coke. Dunno what they cut it with. Went like that after delivery.”

The report that the ADA read came with a codicil from the case officer, who, having seen enough of these by now, added the post-it postscript with his own version of events. Rather than undermining his associates, his comment was more one of humanizing the serendipitous occasion with social context and a bit of native wit.

“The old ‘Aztec Two-Step’. My, you’ve got to hand it to them. They do have ambitions,” said the ADA with a smirk and a page turn.

“Some might call it that,” his assistant agreed. “Others might call, oh, say, a deliberate strategy to obtain a self-implicating statement from a suspect pre-Miranda.”

“Yes. That would be US v. Carter 05-2823-cr,” cites the ADA in a sigh to his brief. “Doubtless we’ll hear it called that at the suppression hearing.

“And much more as well, I would venture to guess.”

“One would assume. Do you suppose Phipps was making an analogy to getting a pre-rights admission of guilt as the same as a whole load of legislature diarrhea?”

“Running into a bit of shit-zu puppies? Could be…”

But it was, contrary to both their beliefs, in point of fact, a reference to an obscure 1970s folk-rock band which his elder sister owned in LP format during her brown-rice/homespun/Annie Kelso Earth Shoes phase.

Phipps was only going on the full-disclosure track in order to head off the anticipated comparison to Missouri v. Seibert 542 US 600 (2004). The defendant there had no warning before blurting out a statement which became the basis for the formal, recorded confession. That one had been clear enough for the Nine to toss.

However, they hadn’t been as kind to a like mind with Oregon V. Elstad, 470 US 298 (1985) and that was where he was hoping this would go. It’s not like the questioning was more or less about the same thing the defendant spoke about, as if the subject was followed up on like an extension of the previous inadmissible utterance. Nope. Not even the same agents did the office interview, and you could count on that being among the factors to consider. Add it into “the completeness and detail of the Q&A in the in the first round of interrogation, the overlapping content of the two statements, the timing and the setting of the first, the conformity of personnel…”