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finding that defendant voluntarily consented to search where officers "had their weapons drawn only as a precaution when entering the premises, and there is no evidence that either used his gun in a manner that coerced [defendant] to consent to a search of the apartment"
Summary of this case from Dunbar v. AvigdorOpinion
08-CR-507 (JG).
February 25, 2009
BENTON J. CAMPBELL, United States Attorney, Eastern District of New York, Brooklyn, NY, By: Michael Fraser Stoer, Sean Haran, Andrew Edward Goldsmith, John P. Nowak, Attorneys for Government.
FEDERAL DEFENDERS OF NEW YORK, INC, Brooklyn, NY, By: Heidi C. Cesare, Esq., Attorney for Defendant.
MEMORANDUM AND ORDER
The defendant Miguel Zubiate has moved to suppress physical evidence seized on June 27, 2008, from 24-49 86th Street, Apartment 2, East Elmhurst, New York. The motion also seeks the suppression of certain post-arrest statements he made that day. In an order dated January 29, 2008, I denied the motion and said that this opinion would follow.
Zubiate pled guilty to possession of marijuana on the morning of February 2, 2009, the day his trial was to commence.
FACTS
Based on the evidentiary hearing conducted on January 27, 2009, I make the following findings of fact.In late June of 2008, ICE Special Agent Todd Anderson, and other agents working with him, received information from ICE agents in Florida. A courier had been arrested on June 24 after 1.7 kilograms of cocaine were discovered in a Jesus statue, a portrait of the last supper, two jewelry boxes and a mirror that were in the courier's luggage. The courier cooperated, and after a controlled delivery to Marlene Zapata in Orlando, Zapata was arrested. Zapata cooperated as well. She operated what Anderson termed a "remitter" or "trans-ship[ing]" business called Lima Services. Zapata and her employee told the agents in Florida that the items in which the cocaine had been secreted had been directed (by a Daniel Campos) to be sent via United Parcel Service ("UPS") to Henry Ortiz at 24-49 86th Street, Apartment 2, East Elmhurst, New York. A plan was hatched to make a controlled delivery to that address. The delivery would not actually contain the seized drugs; for obvious reasons, Anderson and his fellow agents created a package of such size and weight that it would appear to contain the shipment of drugs. They put a device inside the package that would send them a signal when the package was opened.
Among the other information provided by the Florida agents to the New York agents was the fact that Zapata had sent a package addressed to Ortiz at the same address once before, also at the instruction of Daniel Campos. Specifically, on June 3, 2008, a package was delivered to the address. It had been received, and signed for, by the defendant Miguel Zubiate.
On June 26, 2008, Anderson executed an affidavit in support of an application for an anticipatory search warrant. He informed Magistrate Judge Cheryl Pollak that he and the other agents working with him would make the controlled delivery the following day. He sought permission in advance to search the apartment in question, which the agents had surveilled the previous day, if delivery were accepted. Specifically, he requested permission to search immediately upon the opening of the package and after five minutes of receipt if the package was not opened. Judge Pollak issued the anticipatory warrant at 8:20 p.m. on June 26, 2008.
Between that time and late the following morning, the agents changed plans. They decided not to let whoever signed for the package take it inside the apartment; rather, they were going to arrest that person on the spot. And rather than rely on the springing authorization to enter the apartment that would be conferred by the warrant, the agents decided to seek consent from the arrestee to enter and search the apartment.
The reason for this change was odd, but I credit Anderson's testimony that it was the true motivation. The reason was as follows: The intended recipient of the contraband was expecting a UPS delivery. Sometimes people in that situation check UPS's system, using the tracking number for the shipment, to determine its status. UPS, however, will not simply provide ICE with a tracking number for use in its investigation. To ensure that there was a UPS tracking number for a package from Zapata, the Florida agents actually sent a package via UPS to 24-49 86th Street, Apartment 2, East Elmhurst, New York. This gave them a tracking number, but created the specter that a real UPS delivery might arrive before or during the controlled delivery. Though there appears to have been several other ways to fend off that concern ( e.g., they could have gone earlier in the day; they could have intercepted the UPS truck), I do not doubt the good faith of the agents.
At about 11:15 a.m. on June 27, Special Agent Thomas Acocella, pretending to be a UPS employee, rang one of the doorbells next to the front door of the 24-49 86th Street address. The neighbor in the first floor apartment let him in. The foyer was tiny. On Acocella's left was the open door to the downstairs apartment; to his right was another door. Acocella asked for Henry Ortiz in Apartment 2 and was told by the first floor resident to knock on the other door.
When Acocella knocked on the door to his right, the defendant Zubiate answered it. The door opened directly into the stairway that led to the upstairs apartment. Acocella asked Zubiate if he was Henry Ortiz. Zubiate responded that Ortiz was his friend. At this point the first floor resident interjected that he did not know the defendant's name was Ortiz. The defendant responded that Ortiz was his cousin and was at work.
Acocella asked Zubiate if he would accept delivery of a package for Ortiz. Zubiate agreed to do so and signed for the package. Acocella turned around, which was the signal to his brother agents outside to swoop in and arrest. (The foyer was so small Acocella could hold the door to the outside open as he stood in the doorway to Zubiate's apartment.) Zubiate was still on the threshold of his apartment when Special Agent Michael Szochet rushed in, gun drawn, and after he squeezed past Acocella in the foyer he turned Zubiate around and pushed him down onto the stairs leading up to his apartment. Anderson was behind Szochet and he took over custody of Zubiate, handcuffing him behind his back. After looking up the stairs to see if anyone was there, Szochet turned around and proceeded past Anderson and into the first-floor apartment.
Behind Anderson were Special Agents Ismael Quintana and Hector Colon. They passed Anderson and Zubiate at the bottom of the stairs, ascended the staircase to the upstairs apartment and conducted a security sweep. They looked only for people who could pose a threat to the officers and found none.
The officers' testimony was not consistent. Quintana's testimony, that he and Colon "immediately went upstairs" and were the first to enter the second story apartment in order to conduct the security sweep, Tr. 133, does not square with Colon's testimony that prior to executing the security sweep he waited with the other agents in the foyer to get Zubiate's consent to enter and then was the last agent up the stairs, behind Anderson (who was escorting Zubiate), Szochet and Quintana. Tr. 91-92. Anderson testified that the agents went upstairs together and though he was uncertain about the precise order in which they went upstairs, he stated that he and Szochet sat Zubiate down on the couch in his living room while Colon and Quintana performed the security sweep.
In the meantime, Anderson asked Zubiate if they could go up the stairs to the apartment. Zubiate answered in the affirmative, and they went up the stairs. Anderson detected a strong odor of marijuana. He asked Zubiate if there were any guns, drugs or people in the apartment. Zubiate said he was alone, but there were drugs, since he was a "weed dealer." Once they were in the apartment, Anderson asked for consent to search it, and Zubiate said yes. He also told the agents where they could find marijuana (under a bed in the master bedroom and in a suitcase near the top of the stairs) and cocaine (in lockboxes in a coat closet). The agents seized about 11 kilograms of marijuana and about 3.2 grams of cocaine in those places, as well as about $4,000 in cash from the lockboxes.
During this same period, Anderson asked Zubiate questions about Ortiz and his whereabouts and took a number of statements from Zubiate about his marijuana trafficking. At about 11:45 a.m., a little more than half an hour after the agents entered the apartment, Anderson finally advised Zubiate of his Miranda rights. Zubiate waived those rights, orally and later in writing, and Anderson thereupon "rehashed" with Zubiate everything they had previously discussed.
ANALYSIS
A. Probable Cause to Arrest
The ICE agents arrested Zubiate without a warrant. It is fundamental that to be constitutionally valid, a warrantless arrest must be supported by probable cause. Beck v. Ohio, 379 U.S. 89, 91 (1964); United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008); United States v. Fisher, 702 F.2d 372, 375 (2d Cir. 1983). Zubiate argues that his arrest was unlawful because the agents who arrested him lacked sufficient information to support the belief that he knew the package contained drugs. I disagree.
"Probable cause to arrest a person exists if the law enforcement official, on the basis of the totality of the circumstances, has sufficient knowledge or reasonably trustworthy information to justify a person of reasonable caution in believing that an offense has been or is being committed by the person to be arrested." United States v. Patrick, 899 F.2d 169, 171 (2d Cir. 1990) (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949)). Although "probable cause `requires only a probability or substantial chance of criminal activity, not an actual showing of such activity,'" mere suspicion or rumor will not suffice. Valentine, 539 F.3d at 93 (quoting Illinois v. Gates, 462 U.S. 213, 244 n. 13 (1983)); see Fisher, 702 F.2d at 375; see also Whiteley v. Warden, 401 U.S. 560, 568 (1971) (collective knowledge doctrine permits an officer making an arrest to rely on information transmitted by other officers).
Based on the testimony of the ICE agents at the suppression hearing, I conclude that the agents had probable cause to arrest Zubiate when he signed for the package. I need not decide whether the act of signing for a package that, when sent, contained narcotics constitutes probable cause to arrest because in this case the officers relied on additional information as well. Specifically, they knew that Zubiate had previously signed for a package intended for Ortiz. In addition, when Zubiate described his relationship to Ortiz, he first called him his friend, but moments later he described him as a cousin. A reasonable officer, equipped with all of these facts, would be warranted in the belief that the defendant both agreed to accept the package and knew (or at least believed) it contained narcotics.
B. Lawfulness of the Security Sweep
Zubiate argues that the protective sweep of his apartment was unlawful. Though I conclude that the scope of the sweep was not constitutionally permissible, it cannot be a basis to suppress the drugs ultimately recovered.
Generally, the Fourth Amendment prohibits a search of a dwelling without first obtaining a search warrant. An exception to this rule is the security sweep or protective search incident to a lawful arrest, defined by the Second Circuit as a warrantless, "quick and limited pass" through private premises to identify third persons whose presence could pose a danger. United States v. Escobar, 805 F.2d 68, 71 (2d Cir. 1986). Recognizing the need to balance the officers' interest in safety with the occupant's right to privacy in his home, in Maryland v. Buie, 494 U.S. 325 (1990), the Supreme Court stated as follows: "as an incident to the arrest the officers could, as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Id. at 334. Because the justification for the sweep is the protection and safety of those on the scene, the Court in Buie held that a more widespread search is only permissible if there are " articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. (emphasis added).
At Zubiate's suppression hearing, his counsel focused on the "natural layout and geography of [his] apartment," Tr. 142, arguing that because Zubiate was arrested at the base of the staircase — "at the threshold" of the door to his apartment — the permissible scope of the security sweep, was limited to looking up the stairs to confirm that no one was "coming at them from the stairway." Id. I agree that such a sweep would constitute a valid search of the "spaces immediately adjoining the place of arrest" as contemplated by Buie. 494 U.S. at 334. The fact that Zubiate was "at the threshold," however, is of no real consequence here in determining the legitimacy of the sweep given the Second Circuit's holding in United States v. Oguns, 921 F.2d 442, 446-47 (2d Cir. 1990), which extended the protective search doctrine to cover arrests made at the threshold or just outside of a home. Rather, the critical question is whether, in expanding the scope of the security sweep to the entire second floor, the officers had "articulable facts that support[ed] an inference that the area to be swept harbor[ed] an individual posing a danger to those present." United States v. Lauter, 57 F.3d 212, 216 (2d Cir. 1995); see, e.g., United States v. Gandia, 424 F.3d 255, 264 (2d Cir. 2005) (invalidating protective sweep where, despite facts suggesting that there might be a gun in the apartment, there were no "specific and articulable facts" suggesting the presence of third party who could use it); United States v. Moran Vargas, 376 F.3d 112, 116 (2d. Cir. 2004) ("generalizations, without more, are insufficient to justify a protective sweep" into areas beyond the immediate place of arrest); United States v. Rudaj, 390 F. Supp. 2d 395, 400-01 (S.D.N.Y. 2005) (finding the scope of the sweep unjustified because "lack of information and unfounded speculation do not rise to the level of a specific, articulable basis for a reasonable belief").
The government failed to offer any such articulable facts. Anderson testified that the purpose of the sweep was "to make sure there were, in fact, no other people inside," Tr. 14, but neither he nor his brother agents articulated specific reasons for believing that a third party posing a threat was present upstairs. I suppose the officers might reasonably have believed Henry Ortiz was inside the apartment, but given the absence of testimony to that effect it would be pure conjecture. Moreover, there was no testimony or information suggesting that anyone on the premises, whether it be Zubiate or Ortiz, posed a danger or possessed a weapon. A reasonable belief that a suspect is a drug dealer is not a sufficient substitute for "specific reasons for [a] suspicion that the [area searched] harbored a dangerous person." United States v. Blue, 78 F.3d 56, 60 (2d Cir. 1996); see Moran Vargas, 376 F.3d at 116 (2d. Cir. 2004) (agents' reasonable belief that others might be present due to suspicion that defendant was a drug courier and awareness that drug traffickers are frequently armed and dangerous are insufficiently specific grounds to justify a protective sweep); United States v. Taylor, 248 F.3d 506, 514 (6th Cir. 2001) (generalized suspicion that defendant was a drug dealer was inadequate, standing alone, to justify protective sweep); cf. United States v. Hauk, 412 F.3d 1179, 1187 (10th Cir. 2005) (assumption that "drug houses" are inherently dangerous is not sufficient to permit the practice of automatic protective sweeps at such locations). I conclude, based on the testimony of the agents, that they lacked a legitimate basis as required by Buie to expand the scope of the sweep to the second floor apartment.
This conclusion, however, does not provide a basis to suppress the physical evidence seized from Zubiate's apartment. Defense counsel argues that Zubiate did not freely consent to the search of his apartment because the agents' broad sweep contributed to overbearing his will. Tr. 146-47. As suggested in the facts above, and as discussed below, I find as a factual matter otherwise. Because nothing was seized as a result of the security sweep, and because I find no causal relationship exists between the sweep and Zubiate's consent, the sweep provides no basis to suppress evidence.
C. Consent to Search Zubiate's Apartment
A warrantless search without probable cause does not violate the Fourth Amendment if "the authorities have obtained the voluntary consent of a person authorized to grant such consent." United States v. Elliott, 50 F.3d 180, 185 (2d Cir. 1995). The government must demonstrate by a preponderance of the evidence that consent was voluntarily given. See United States v. Isiofia, 370 F.3d 226, 230-31 (2d Cir. 2004). Where, as here, the defendant claims that consent was obtained involuntarily, Tr. 139, a judge's decision on the issue will often boil down to a naked credibility determination.
Consent to search must be voluntary. In other words, it must be obtained without coercion, but the individual need not be advised of his or her right to refuse consent. See United States v. Garcia, 56 F.3d 418, 422-23 (2d Cir. 1995). To ascertain whether the consent was voluntary, courts examine the totality of the circumstances, with an eye toward whether the consent was a product of free choice "rather than a mere acquiescence in a show of authority." United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993). Among the relevant factors considered in determining the voluntariness of consent to search are age, education, background, physical and mental condition, and the setting in which the consent is obtained. See Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). That a defendant is in custody does not, by itself render consent involuntary. See United States v. Ansaldi, 372 F.3d 118, 129 (2d Cir. 2004) ("The fact that police drew their guns to effectuate the arrest does not necessarily establish coercion, neither does the fact that [the defendant] was handcuffed."); United States v. Kon Yu-Leung, 910 F.2d 33, 41 (2d Cir. 1990) (noting that the "coercion inherent in the fact of arrest" does not suffice to establish coercion).
Zubiate, who understands English, voluntarily consented to the search of his apartment. I credit the testimony of Anderson that Zubiate orally gave Anderson and his team permission to search his apartment and "volunteered to tell [them] where the marijuana was." Tr. 17. Zubiate also gave written consent to search approximately 15 minutes after the agents entered the apartment. See Gov. Ex. 1. Anderson testified that when Zubiate signed the consent to search form he "appeared competent" and "understood what was going on." Tr. 17.
I reject Zubiate's claim that he was coerced into giving his consent to search. Although the presence of unholstered weapons can in some instances signal coercive police behavior, see United States v. Vasquez, 638 F.2d 507, 524-25 (2d Cir. 1980); United States v. Mapp, 476 F.2d 67, 78 (2d Cir. 1973)), the presence of a gun does not necessarily render consent involuntary, United States v. Rothberg, 460 F.2d 223, 224 (2d Cir. 1972), especially if it was unholstered "only as a precaution during entry of [an] apartment." United States v. Miley, 513 F.2d 1191, 1204 (2d Cir. 1975). Szochet and Colon had their weapons drawn only as a precaution when entering the premises, and there is no evidence that either used his gun in a manner that coerced Zubiate to consent to a search of his apartment. Indeed, I find that Colon was executing the protective sweep and thus was not near Zubiate when he gave his consent to Anderson, who did not draw his own gun during the operation. Based on the totality of the circumstances in this case, I find that Zubiate voluntarily consented to the search of his apartment and thus deny his motion to suppress evidence seized as a result of the search.
D. Miranda Waiver
Zubiate claims that the statements he made after his arrest and during the search should be suppressed because he had not been read his Miranda rights.
It is well-established that in situations where a defendant is subjected to custodial interrogation, Miranda v. Arizona, 384 U.S. 436 (1966), requires that the police inform the defendant before questioning of his so-called Miranda rights. So long as the warnings given adequately convey to the defendant the substance of the rights, the precise language of the warnings need not mirror the language of the Miranda opinion. See California v. Prycosk, 453 U.S. 355, 359-61 (1981).
To prove that a defendant validly waived his Miranda rights, the government must prove by a preponderance of the evidence "(1) that the relinquishment of the defendant's rights was voluntary, and (2) that the defendant had a full awareness of the right being waived and of the consequences of waiving that right." United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995). The determination of whether the waiver was made knowingly and voluntarily depends on the totality of the circumstances. See Fare v. Michael C., 442 U.S. 707, 725 (1979); Jaswal, 47 F.3d at 542.
A "narrow exception to the Miranda rule" exists where immediate police questioning of a suspect is "reasonably prompted by a concern for the public safety." New York v. Quarles, 467 U.S. 649, 655-60 (1984) (finding a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence); United States v. Simmons, No. 02-CR-314, 2003 WL 145261, at *6 (E.D.N.Y. Jan. 9, 2003) (pre- Miranda questioning regarding the location of the gun was not improper based on public-safety exception).
The Second Circuit's "cases addressing the public safety exception distill to three principles." United States v. Estrada, 430 F.3d 606, 612 (2d Cir. 2005). First, "` Miranda warnings need not precede questions reasonably prompted by a concern for the public safety, or for the safety of the arresting officers,' . . . `so long as the questioning relate[s] to an objectively reasonable need to protect the police or the public from any immediate danger.'" Id. (quoting United States v. Reyes, 353 F.3d 148, 152 (2d Cir. 2003) (internal quotation marks omitted) and United States v. Newton, 369 F.3d 659, 677 (2d Cir. 2004) (internal quotation marks omitted) (alteration and emphasis in original)). "Like the reasonableness standard itself, the public safety exception is `a function of the facts of cases so various that no template is likely to produce sounder results than examining the totality of the circumstances in a given case.'" Reyes, 353 F.3d at 152 (quoting United States v. Banks, 540 U.S. 31, 36 (2003)). Second, although "framed spontaneously in dangerous situations," Newton, 369 F. 3d at 678, pre- Miranda questions may not be investigatory or designed to elicit testimonial evidence. Estrada, 430 F.3d at 612. Third, pre- Miranda questioning of suspects as a routine matter is expressly prohibited. Id. Thus, statements about the presence of weapons and drugs may fall within the public safety exception when given in response to questions based on an objectively reasonable need to protect the police or the public from an immediate danger. See Reyes, 353 F.3d at 154-55 (defendant's statements that he had a gun in his jacket and drugs in his car fell within the public safety exception when made in response to officer's question as to whether he had anything on his person that could harm the officer and where officer had specific information that defendant routinely carried a firearm).
Here, Miranda warnings were required because Zubiate, who had been arrested and was being questioned by the agents, was subjected to custodial interrogation. After handcuffing Zubiate, Anderson asked him a number of questions, including whether there were any guns, drugs or other people in the apartment. When Zubiate answered that there were drugs but no other people or weapons, Anderson asked about the type, quantity and location of the narcotics. Zubiate told the agents that he had a large quantity of marijuana hidden in various locations in the apartment as well as a quantity of cocaine in a lockbox. When asked for the code to the lockboxes, Zubiate gave it to them. Zubiate also "volunteered" to tell them the location of the marijuana. Anderson also asked Zubiate about Henry Ortiz and the intended recipient of the package.
At approximately 11:45 a.m., after Zubiate executed the consent to search form, Anderson orally " Mirandized" him, and he acknowledged that he understood his rights. About 15 minutes later, Anderson re-read Zubiate his rights off of the Miranda waiver form, which Zubiate then signed. See Gov't Ex. 2. Anderson testified, and I find, that Zubiate understood the form when he signed it. Following the execution of the waiver, Zubiate "rehashed everything" to Anderson. Tr. 23.
I find that Zubiate voluntarily and knowingly waived his Miranda rights. However, given the facts — and as agreed to at the hearing by the prosecution — only those statements made by Zubiate after he was orally Mirandized would be admissible at trial. Statements made in response to the agents' pre- Miranda questions are suppressed because they do not fall within the public safety exception enunciated by Quarles and its Second Circuit progeny. As discussed above, there is no evidence that the agents possessed any specific knowledge, based on either the circumstances of the criminal conduct or previous reports, that their safety or the safety of the public was at issue, cf. Quarles, 467 U.S. at 655-59 (police were informed by victim that she had been raped at gunpoint and that the man, whose description she offered, had just entered a nearby supermarket), or that Zubiate possessed a firearm or other weapon. Cf. Newton, 369 F.3d at 663 (officers received report that parolee had threatened to kill his mother and her husband, in whose apartment he was residing, and that the parolee kept a gun in a shoe box by the door); United States v. Khalil, 214 F.3d 111, 115 (2d Cir. 2000) (informant told police that his roommate had bombs in the apartment).
Although the issue was not raised by Zubiate, a word is appropriate regarding the applicability of the Supreme Court's decisions in Oregon v. Elstad, 470 U.S. 298 (1985) and subsequently in Missouri v. Seibert, 542 U.S. 600 (2004) (plurality opinion). When an initial confession is obtained without the required Miranda warnings, the government is not precluded from introducing a subsequent confession obtained after the warnings have been properly administered. Elstad, 470 U.S. at 318. The Court carved out an exception to the Elstad rule in Seibert, in which it held that officers are not permitted to employ a "question first" strategy, in which they intentionally withhold Miranda warnings until a suspect has confessed and then give the warnings in the midst of a coordinated and continuing interrogation. The plurality opinion explained that 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." Id. at 611-12 (internal quotation marks omitted). To address this "threshold" issue, the Seibert plurality set forth five factors to consider: (1) the completeness and detail of the questions and answers in the first round of interrogation; (2) the overlapping content of the two statements; (3) the timing and setting of the statements; (4) the continuity of police personnel; and (5) the degree to which the interrogator's questions treated the second round as continuous with the first. 542 U.S. at 615. However, Justice Kennedy, who supplied the fifth vote, set forth a "narrower test applicable only in the infrequent case, . . . in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning." Id. at 622 (emphasis added). See generally United States v. Caraballo, 282 Fed. App'x 910, 913 (2d Cir. 2008) (no impermissible two-step process where statement defendant relies on to show that authorities used a two-step scheme was an isolated statement that neither constituted a confession nor overlapped with the full confession given after signing the Miranda waiver form); United States v. Carter, 489 F.3d 528, 536 (2d Cir. 2007) (no impermissible two-step interrogation strategy where officer asked defendant only one question regarding the contents of a bag of narcotics before giving Miranda warnings, and where "there was almost no overlap between [that] statement and the full confession he gave after he received the warnings").
As noted above, after being arrested and handcuffed but before being Mirandized, Anderson and his team questioned Zubiate for approximately 15 minutes, and he answered their questions about the drugs in his apartment and his relationship with Ortiz. After Anderson advised Zubiate of his Miranda rights, Zubiate "rehashed . . . everything he had said from before" and Anderson asked follow-up questions. Tr. 70. At the hearing, when asked specifically about his familiarity with the limitations imposed by Elstad and Seibert, Anderson testified that it was not his strategy to "question first" and Mirandize later. Tr. 84. Given that testimony, which I credit, I find that although the facts here would not satisfy the five factor test set forth by the Seibert plurality, when analyzed under Justice Kennedy's rubric, Anderson's actions were not "calculated" to undermine the effectiveness of the Miranda warning. Thus, had this argument been presented as a ground on which to suppress Zubiate's post- Miranda statements, I would have found for the government.
CONCLUSION
For the reasons set forth above, the defendant's motion was denied.