State of Connecticut v. Garland Hunter (2013)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO SUPPRESS

In Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 260, 159 L.Ed.2d 643 (2004), the United States Supreme Court held that the fifth amendment requires, under certain circumstances, suppression of an inculpatory statement given by the defendant after Miranda warnings if that statement was preceded by an earlier interrogation which was initiated before valid Miranda warnings were given.   Relying in part on Seibert, the defendant moves to suppress two oral inculpatory statements that he allegedly made to the Waterbury police.   This motion raises important questions regarding the application of Seibert and the burden of proof when a defendant alleges that the police have engaged in a deliberate two-step interrogation strategy intended to undermine Miranda.   For the reasons set forth below, the defendant's motion to suppress is granted.¹

I

FACTS

This case involves a murder prosecution arising out of a stabbing death at Kriola's Café in Waterbury, Connecticut.   The court finds the followings facts.   On Thursday, November 10, 2011, the defendant, Garland Hunter, appeared at the Waterbury Superior Court to surrender to the police based upon a warrant for the murder of Mikyle Frank.   The defendant proceeded to the office of adult probation, where he informed a staff member why he was there.

Shortly thereafter, Clifton Hodak, a Waterbury Police Department (WPD) officer who worked at the courthouse as a court liaison officer, was notified that the defendant was downstairs and wished to surrender.   Officer Hodak immediately informed the WPD detective bureau of the situation and then went to the probation office and detained the defendant until detectives could arrive.   Hodak detained the defendant in the nonpublic area of the probation office and, as the state concedes, at that point the defendant was not free to leave.

Soon afterwards, three WPD detectives arrived at the courthouse:  Detective Orlando Rivera, Sergeant Daniel Ferrucci and Detective David McKnight.   These detectives were dispatched by Lieutenant Michael Slavin to serve the murder arrest warrant on the defendant.   Slavin specifically included Ferrucci in the group because Slavin believed that, because the detectives may question the defendant at the courthouse, a supervisor needed to be present to acknowledge the defendant's oath if the defendant chose to give a written statement.

Once the detectives arrived, Rivera brought the defendant into a conference room and began to question him about the stabbing.   Although Det. Rivera and Sgt. Ferrucci assert that Rivera informed the defendant of his Miranda rights before beginning to question him, neither officer obtained a written acknowledgement from the defendant that he had been informed of his Miranda rights and was willing to waive them.   The customary practice of the WPD is to read the defendant his Miranda rights from a preprinted card and then have a suspect initial the card to indicate that he has been so advised and is willing to waive his rights.   Despite this practice, neither Ferrucci nor Rivera had brought a Miranda card with them to the courthouse even though they knew it was possible that they might want to interrogate the defendant at the courthouse.   Neither officer attempted to have any paperwork or Miranda waiver forms faxed to the probation office from the WPD, despite the fact that it would have taken just a minute to do so.   Moreover, neither asked Hodak whether he had such paperwork at the courthouse.

Ferrucci remained outside of the interrogation room during the first few minutes of the interrogation, when Miranda warnings would have most likely been given, so that he could speak to Slavin on the phone about whether the defendant would be booked and processed at the courthouse or the police station.   Ferrucci entered and exited the conference room several times during the interrogation, which lasted approximately one hour.   The defendant made inculpatory oral statements in response to Rivera's questions regarding the stabbing.   Rivera did not attempt to procure a written statement from the defendant at that time.

A decision was then made to process and book the defendant at the WPD police station rather than at the courthouse as the questioning at the courthouse was winding down.   The defendant was handcuffed and transported to the police station.   Rather than taking the defendant immediately to the processing and booking area, the defendant was taken to the detective bureau and placed inside an interview room.

Lieutenant Slavin then instructed Rivera to reinterrogate the defendant.   Rivera and Ferrucci entered the interview room and Rivera read the defendant his Miranda rights from a Miranda card.   The defendant initialed the card to indicate that he understood his rights and that he was willing to waive them and answer questions.   Rivera then asked the defendant if he “can just tell me again what happened at Kriola's Café.”

The defendant repeated essentially the same story he gave at the courthouse.   The police showed the defendant a picture of Mikyle Frank at the end of the questioning and asked him if this was the person that he had stabbed.   The defendant answered yes.   The police next asked the defendant to identify a picture of the knife that was recovered from Kriola's Café and whether that knife was the one he had stabbed Mikyle Frank with.   The defendant answered yes.   The defendant refused to sign either picture.   The defendant was then asked if he was willing to sign a sworn written statement regarding what he had told the detectives about the stabbing.   He indicated that he was not willing to do so.   Shortly thereafter, the defendant was transported down to the booking desk for processing.   Additional findings of fact are set forth below where necessary.

II

DISCUSSION

It is well established constitutional law that before a suspect who is in custody is interrogated by law enforcement he must be adequately apprised of his constitutional rights.  “In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the United States Supreme Court outlined the warnings necessary to safeguard an accused's constitutional rights ․ The court stated ․ that, prior to any questioning, the person must be warned that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney [during questioning], and that if he cannot afford an attorney one will be appointed for him prior to any questioning.   Elaborating on the above-quoted requirements, the court [explained that] [o]nce warnings have been given the subsequent procedure is clear ․ If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”  (Citations omitted;  internal quotation marks omitted.)  State v. Cobbs, 164 Conn. 402, 417–18, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S.Ct. 77, 38 L.Ed.2d 112 (1973).

A defendant seeking to suppress statements that result from custodial interrogation “bears the burden of proving custodial interrogation.”  State v. Pinder, 250 Conn. 385, 409, 736 A.2d 857 (1999).   The state concedes, and the court concludes, that the defendant has met this burden with respect to the interrogations at the courthouse and the police station.   The evidence establishes that the defendant was in custody before questioning began.   Consequently, the burden shifts to the state to establish by a preponderance of the evidence that the required Miranda warnings were given prior to the police beginning custodial interrogation, the defendant knowingly and intelligently waived those rights, and the statements made by the defendant were voluntary.  Miranda v. Arizona, supra, 384 U.S. 475;  State v. Gray, 200 Conn. 523, 531, 512 A.2d 217, cert. denied, 479 U.S. 940, 107 S.Ct. 423, 93 L.Ed.2d 373 (1986);  State v. Marshall, 83 Conn.App. 418, 423, 850 A.2d 1066, cert. denied, 271 Conn. 904, 859 A.2d 564 (2004).

The defendant moves to suppress the oral statements given at both the courthouse and the police station.   With respect to the oral statements at the courthouse, the defendant contends that the state has failed to establish that constitutionally required Miranda warnings were given prior to interrogation and that he voluntarily waived these rights.   With respect to the oral statements given at the police station, the defendant asserts that, even if Miranda warnings were given prior to renewing the interrogation, such Miranda warnings were not constitutionally valid under Seibert.

A

Statements Given at the Courthouse

The court first turns to whether the state has met its burden of proving that Miranda warnings were given prior to the oral statement that the defendant allegedly gave at the courthouse.   For the following reasons, the court cannot conclude, under the circumstances of this case, that the state has met this burden.

First, the defendant did not sign any written acknowledgement and waiver of his Miranda rights.   Connecticut courts have found that a defendant's express written acknowledgement and waiver is strong evidence that the warnings were given.   See State v. Gray, supra, 200 Conn. 531–32.   Although such a written acknowledgement is not an evidentiary prerequisite for the state to establish that the Miranda warnings were given;  see State v. Shifflett, 199 Conn. 718, 733, 508 A.2d 748 (1986);  when considered in light of all of the other facts, its absence gives rise to an inference that the warnings were not given.

Specifically, one of the state's witnesses conceded that the failure to obtain the defendant's written acknowledgment and waiver violated WPD policies and procedures.   Moreover, unlike circumstances in which a suspect is questioned late at night on the street immediately after being taken into custody, the defendant was interviewed at a place and time where it would have been logistically easy to obtain and use such forms.   Indeed, Ferrucci conceded that he knew he had been dispatched to the courthouse because the defendant might be interviewed before being brought back to the police station.   Nevertheless, he failed to bring or obtain any documents or forms that, if signed, would have been strong evidence that the warnings were given and the waiver made.

Second, in their testimony throughout the suppression hearing, the state's witnesses often contradicted each other, the exhibits and their own prior testimony at the hearing in probable cause (HPC) in this case.   By way of illustration:

1.  Rivera testified that Ferrucci accompanied him into the conference room at the courthouse when the defendant was first placed in that room.   Hodak testified, however, that Ferrucci remained with him for approximately five minutes outside the conference room when the defendant and Rivera first went into the room.

2. Rivera testified that he did not take any notes of the interrogations at the courthouse or the police station, but later conceded that he had made a written note that the defendant identified the victim's picture during the interrogation at the police department.   This admission was also contrary to his testimony at the HPC.

3.  Rivera testified that he placed the picture of the victim along with his note in an evidence bag and then sealed the bag.   Nevertheless, the sticker on the evidence bag indicates that it was sealed by someone with the last name Baxter.

4. Ferrucci testified that he saw Rivera seal the evidence bag containing the victim's picture and yet has never seen the written note that was contained in the evidence bag.

5. Rivera testified that he began working on a written report to document the defendant's “confession” on Friday, November 11, 2011, one day after the custodial interrogation occurred.   Yet, this testimony contradicted his own testimony at the HPC hearing that he had not written the report until November 14, 2011, the following Monday.

6. Ferrucci testified that he saw Rivera seal the evidence bags containing the victim's photograph and the photograph of the knife, despite the fact the bags indicated they were sealed by Baxter.

7. Ferrucci testified that he observed Rivera working on the police report memorializing the defendant's confession immediately after they finished booking the defendant on November 10, 2011.   This testimony conflicts with Rivera's HPC testimony that he wrote the report on November 14 and Rivera's testimony at the suppression hearing that he started working on the report on November 11.

8. Ferrucci testified that he was present during the interrogation of the defendant at the police station and that he never saw Rivera make any written notes.   This testimony conflicts with Rivera's testimony regarding the note he prepared about the defendant identifying the victim's picture.

9. Ferrucci admitted that he had been asked to go to the courthouse because the defendant may be interviewed at the courthouse and he might need to take a statement, but then recanted that testimony and testified that he did not believe he was going to the courthouse to take a statement.

10. Ferrucci's testimony that he was not going to the courthouse to take a statement is contradicted by the written report authored by Rivera and signed by Ferrucci that they “responded to the Waterbury Superior Court to speak with [the defendant].”

The court finds these contradictions to be substantial and material.   In their entirety, they cast significant questions on the reliability of the testimony of the state's witnesses, specifically on Det. Rivera's and Sgt. Ferrucci's testimony that Rivera orally advised the defendant of his Miranda rights before questioning him at the courthouse.   Given these concerns, and in light of the absence of a written acknowledgment and waiver, the court finds that the state has failed to meet its burden to establish by a fair preponderance of the evidence that the warnings were given prior to the commencement of questioning.   Accordingly, any statements made by the defendant at the courthouse must be suppressed.

B

Statements Given at the Police Station

The defendant next argues that any post-Miranda inculpatory statements made at the police station, which were given after the defendant had been interrogated without Miranda warnings at the courthouse, must be suppressed pursuant to Missouri v. Seibert, supra, 542 U.S. 600.   The state asserts that, even if the defendant's oral statement given at the courthouse must be suppressed, the oral statements made at the police station need not be suppressed because they were preceded by the required Miranda warning and the defendant agreed to waive his rights and speak to the detectives.   The court agrees with the defendant that any statements made at the police station must also be suppressed.

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the United States Supreme Court first addressed the question of whether the fifth amendment ² bars the admission of a defendant's statement given after a proper advisement and waiver of his Miranda rights if the police had previously elicited a confession by questioning a suspect without providing Miranda warnings.   The Elstad court rejected the assertion that the fifth amendment requires suppression:  “[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.   A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.”  Id., 314.

In the following years, a strategy by law enforcement developed, unintentionally encouraged by the Elstad decision, of “withholding Miranda warnings until after interrogating and drawing out a confession.”   Missouri v. Seibert, supra, 542 U.S. 609–10.   This strategy, often referred to as “question first, warn later,” is designed to render Miranda warnings ineffective by first obtaining a confession while the suspect is unaware of his rights, and then by eliciting an admissible duplicate confession after the defendant has been properly Mirandized, but at a time when such warnings will be ineffective.   Following the Supreme Court's decision in Oregon v. Elstad, confusion resulted over whether, and in what circumstances, such “question-first” scenarios would result in exclusion of the later confession at trial.   Compare United States v. Gale, 952 F.2d 1412, 1417 (D.C.Cir.1992) (finding Elstad allows for suppression of second confession if first confession was result of “deliberate police tactics”) with United States v. Orso, 266 F.3d 1030, 1037–38 (9th Cir.2001) (rejecting argument police tactics are relevant to Elstad analysis).

In Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 260, 159 L.Ed.2d 643 (2004), the United States Supreme Court addressed whether a defendant's second confession must be suppressed if the defendant first confessed during an interrogation where the police deliberately withheld Miranda warnings.   The Court held that the defendant's second confession must be suppressed because the circumstances in which the Miranda warnings were given meant that they could not “function ‘effectively’ as Miranda requires,” so that the second confession was effectively an unwarned confession subject to suppression under Miranda.  Id., 601.   A plurality of the Court reasoned that “[u]pon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.”  Id., 613.

Although five justices of the Seibert court ultimately agreed that use of such a deliberate two-step interrogation strategy designed to undermine Miranda does not pass constitutional muster, only a plurality of the court could agree on the test to determine whether a Miranda warning given between interrogations was effective in communicating to the suspect that he had a real choice at that point about giving an admissible statement.   Justice Souter's plurality opinion, joined by three other justices, laid out “relevant facts that bear on whether Miranda warnings delivered midstream could be effective”:  (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 first and the second” interrogation, (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.”  Id., 601–02.

In a concurring opinion, however, Justice Kennedy, writing alone, focused on the intent of the interrogating officer.   Justice Kennedy noted that he “would apply 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., 622.   He dictated an approach under which the first question would be whether “the two-step interrogation technique was used in a calculated way to undermine the Miranda warning”;  id.;   and “to obscure both the practical and legal significance of the admonition when finally given.”  Id., 620.   If the answer to that question were “no,” then the suppression analysis would be governed by the voluntariness standard set forth in Elstad.  Id., 622.   If the answer were “yes,” however, the next question would be whether any curative measures were taken “to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver.”  Id. Justice Kennedy provided two examples of such curative measures:  (1) “a substantial break in time and circumstances between the prewarning statement and the Miranda warning ․ [because] it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn;” and (2) “an additional warning that explains the likely inadmissibility of the prewarning custodial statement ․” Id. Justice Kennedy concluded that the postwarning statements made by Seibert were inadmissible because the police in that case had used a deliberate two-step interrogation technique and no curative steps had been taken.  Id.

After Seibert, uncertainty arose among lower courts as to whether the admissibility of such statements should be analyzed under Justice Souter or Justice Kennedy's approach.   The majority of federal circuits, relying on Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977),³ have found that Justice Kennedy's concurrence represents the holding in Seibert as the narrowest grounds of the Supreme Court's decision.   See, e.g., United States v. Carter, 489 F.3d 528 (2d Cir.2007), cert. denied, 552 U.S. 1144, 128 S.Ct. 1066, 169 L.Ed.2d 814 (2008) (applying Justice Kennedy's approach);  United States v. Torres–Lona, 491 F.3d 750, 758 (8th Cir.2007), cert. denied, 552 U.S. 1121, 128 S.Ct. 927, 169 L.Ed.2d 767 (2008) (“We treat Justice Kennedy's concurrence as controlling since it provided the fifth vote necessary for a majority and since it was decided on narrower grounds than the plurality opinion”);  United States v. Kiam, 432 F.3d 524, 532 (3d Cir.), cert. denied, 546 U.S. 1223, 126 S.Ct. 1453, 164 L.Ed.2d 149 (2006) (“This Court applies the Seibert plurality opinion as narrowed by Justice Kennedy”);  United States v. Courtney, 463 F.3d 333, 338 (5th Cir.2006) (“[W]e find Seibert 's holding in Justice Kennedy's opinion concurring in the judgment”);  United States v. Williams, 435 F.3d 1148, 1158 (9th Cir.2006) (finding that Justice Kennedy's “narrower test ․ represents Seibert 's holding”);  United States v. Street, 472 F.3d 1298, 1313 (11th Cir.2006), cert. denied, 551 U.S. 1138, 127 S.Ct. 2988, 168 L.Ed.2d 715 (“Because Seibert is a plurality decision and Justice Kennedy concurred in the result on the narrowest grounds, it is his concurring opinion that provides the controlling law”);  United States v. Mashburn, 406 F.3d 303, 309 (4th Cir.2005) (“Justice Kennedy's opinion therefore represents the holding of the Seibert Court:  The admissibility of postwarning statements is governed by Elstad unless the deliberate ‘question-first’ strategy is employed”).

A minority of federal circuits, however, have held that Marks is inapplicable to Seibert because Justice Kennedy's concurrence was rejected by the majority of the court.   Those circuits have therefore applied Justice Souter's plurality opinion when conducting a Seibert analysis.   See, e.g., United States v. Heron, 564 F.3d 879, 884 (7th Cir.2009) (“Although Justice Kennedy provided the crucial fifth vote for the majority, we find it a strain at best to view his concurrence taken as a whole as the narrowest ground on which a majority of the Court could agree ․ Justice Kennedy's intent-based test was rejected by both the plurality opinion and the dissent in Seibert ”);  United States v. Carrizales–Toledo, 454 F.3d 1142, 1151 (10th Cir.), cert. denied, 549 U.S. 1065, 127 S.Ct. 692, 166 L.Ed.2d 536 (2006) (“Determining the proper application of the Marks rule to Seibert is not easy, because arguably Kennedy's proposed holding in his concurrence was rejected by a majority of the Court”).

Connecticut appellate authority has not addressed which analytic approach in Seibert should apply.⁴  In United States v. Carter, supra, 489 F.3d 528, the Second Circuit ⁵ joined the majority of federal circuit courts in concluding that Justice Kennedy's concurrence must be followed, as it represents the position taken by those justices who concurred in the judgment on the narrowest grounds.⁶  This court finds the rationale given by the Second Circuit and its sister circuits compelling.  “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ․” (Internal quotation marks omitted.)  State v. Ross, 272 Conn. 577, 604 n.13, 863 A.2d 654 (2005) (quoting Marks v. United States, supra, 430 U.S. 193).   Justice Kennedy's concurrence provided “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.”  Missouri v. Seibert, supra, 542 U.S. 622.   Justice Kennedy's test is controlling in the present case.

Justice Kennedy was silent in Seibert, however, on the question of which party bears the burden of proving the deliberateness of the Miranda violation, or the absence thereof.   The Second Circuit answered this question in United States v. Capers, 627 F.3d 470, 479 (2d Cir.2010), and held that “the burden rests on the prosecution to disprove deliberateness.”   The Capers court explained that they were aware “that evidence of deliberateness or lack thereof [of the use of a two-step interrogation technique] is ․ in the hands of the government, and ․ the party seeking to introduce the confession should remain responsible for showing that it was not obtained through a subterfuge.”  Id. In addressing the state's burden of proof, the Capers court decided to “apply the preponderance standard ․ in recognition that Miranda is an exclusionary rule aimed at deterring lawless conduct by police and prosecution, and that imposing a higher burden of proof would do little to mitigate prosecutorial overreaching while at the same time concealing troves of probative evidence from the eyes of the jury.”  (Internal quotation marks omitted.)  Id., 480;  accord United States v. Stewart, 536 F.3d 714, 719 (2008) (“the government bears the burden of proving the police did not deliberately withhold the warnings until after they had an initial inculpatory statement in hand”);  United States v. Ollie, 442 F.3d 1135, 1142–43 (8th Cir.2006) (holding government must prove lack of deliberateness by preponderance of evidence because “[p]lacing that burden on the prosecution is consistent with prior Supreme Court decisions that require the government to prove the admissibility of a confession before it may come into evidence”).

This court agrees with the analysis of the Second Circuit.   The state is the party seeking to admit the defendant's statements.   Evidence, or the lack thereof, of the deliberateness of employing a two-step interrogation technique is almost exclusively in the government's possession.   The state thus has the burden of disproving the deliberateness of using a two-step interrogation technique by a preponderance of the evidence.

Here, the state has not met its burden of disproving deliberateness.   First, it is important to note that the state has consistently maintained that Miranda warnings were, in fact, given to the defendant prior to any questioning at the courthouse.   As a result, it has chosen not to offer evidence regarding the subjective or objective intent of the WPD's conduct in questioning first and warning later.

The state does argue, without conceding, that any failure to advise the defendant of his Miranda rights resulted from good faith confusion about whether the defendant was going to be booked and processed at the courthouse or at the police station.   Thus, the state appears to argue that any failure to give the warnings was inadvertent rather than part of a deliberate two-step strategy.

This court is not persuaded that the state has met its burden of disproving the deliberate use of a two-step interrogation technique for several reasons.   First, one or more of the detectives departed for the courthouse believing that the defendant might be questioned while there and, therefore, the police should have been prepared to meet their Miranda obligations at the courthouse.   Second, after the detectives brought the defendant to the police station, they immediately placed him in an interview room where they renewed their questioning, rather than taking him first to be booked and processed.   If the detectives believed that they had met their Miranda obligations at the courthouse, then further questioning would have been unnecessary, or at a minimum, it would not have been necessary to read the defendant his Miranda rights at the police station.

Third, the circumstances surrounding the two interrogations are suggestive of a deliberate two-step interrogation strategy.   Rivera conducted both sessions.   The interrogations occurred less than one hour apart.   Both rounds of questioning occurred in a similar environment.   At the courthouse, the questioning took place in a nonpublic conference room accessible only by probation officers and other law enforcement staff.   At the police station, the questioning occurred in a detective bureau interview room accessible only to other WPD officers.   Finally, at the police station Rivera essentially asked the defendant to repeat what he said at the courthouse about the stabbing.

Because the state has failed to meet its burden to disprove deliberateness, the court now turns to the issue of curative measures.  “Curative measures should be designed to ensure that a reasonable person in the suspect's situation would understand the import and effect of the Miranda warning and of the Miranda waiver.”  Missouri v. Seibert, supra, 542 U.S. 622.   The state concedes that there is no evidence that the defendant was warned at the police station that his prior confession at the courthouse was likely inadmissible.   Moreover, there was not a substantial break in time and circumstances between the prewarning statement and the Miranda warning.   The court thus finds that curative measures were not taken between the first and second interrogations in this case.   Consequently, both statements must be suppressed.

In so holding, this court does not find that the state's witnesses testified falsely at the hearing regarding giving the Miranda warnings or in fact engaged in a deliberate strategy to undermine Miranda.   Instead, this court simply holds that the state has failed to meet its burden with respect to these issues.

II

CONCLUSION

For the foregoing reasons, the defendant's motion to suppress inculpatory oral statements that were allegedly given to the Waterbury police department is granted.

Prescott, J.

FOOTNOTES

FN1. This decision was first announced orally in open court prior to the commencement of evidence.   At that time, the court indicated that a further written decision would be issued in due course.   This is that written decision..  FN1. This decision was first announced orally in open court prior to the commencement of evidence.   At that time, the court indicated that a further written decision would be issued in due course.   This is that written decision.

FN2. The fifth amendment to the United States constitution provides in relevant part that “[n]o person ․ shall be compelled in any criminal case to be a witness against himself ․”.  FN2. The fifth amendment to the United States constitution provides in relevant part that “[n]o person ․ shall be compelled in any criminal case to be a witness against himself ․”

FN3. “When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds.”  (Internal quotation marks omitted.)  Marks v. United States, supra, 430 U.S. 193..  FN3. “When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds.”  (Internal quotation marks omitted.)  Marks v. United States, supra, 430 U.S. 193.

FN4. Our Appellate Court has twice addressed Seibert.   See State v. Miller, 137 Conn.App. 520, 48 A.3d 748, cert. denied, 307 Conn. 914, 54 A.3d 179 (2012);  State v. Brown, 98 Conn.App. 829, 912 A.2d 525 (2006), cert. denied, 281 Conn. 920, 918 A.2d 272 (2007).   In each case, however, the Appellate Court did not analyze whether Justice Souter's plurality opinion or Justice Kennedy's concurrence sets forth the controlling test to be applied..  FN4. Our Appellate Court has twice addressed Seibert.   See State v. Miller, 137 Conn.App. 520, 48 A.3d 748, cert. denied, 307 Conn. 914, 54 A.3d 179 (2012);  State v. Brown, 98 Conn.App. 829, 912 A.2d 525 (2006), cert. denied, 281 Conn. 920, 918 A.2d 272 (2007).   In each case, however, the Appellate Court did not analyze whether Justice Souter's plurality opinion or Justice Kennedy's concurrence sets forth the controlling test to be applied.

FN5. “Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive.”  (Internal quotation marks omitted.)  State v. Smith, 275 Conn. 205, 235 n.15, 881 A.2d 160 (2005)..  FN5. “Decisions of the Second Circuit Court of Appeals, although not binding on us, are particularly persuasive.”  (Internal quotation marks omitted.)  State v. Smith, 275 Conn. 205, 235 n.15, 881 A.2d 160 (2005).

FN6. In a recent decision, the Second Circuit clarified its application of Kennedy's concurrence:  “The five Seibert factors consulted in this particular case are by no means the only factors to be considered ․ [Instead,] a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness ․ Subjective evidence of the investigators' intent, if credible, will of course be persuasive, and often decisive.”  (Internal quotation marks omitted.)  United States v. Moore, 670 F.3d 222, 230 n.3 (2d Cir.), cert. denied, 133 S.Ct. 48, 183 L.Ed.2d 691 (2012)..  FN6. In a recent decision, the Second Circuit clarified its application of Kennedy's concurrence:  “The five Seibert factors consulted in this particular case are by no means the only factors to be considered ․ [Instead,] a court should review the totality of the objective and subjective evidence surrounding the interrogations in order to determine deliberateness ․ Subjective evidence of the investigators' intent, if credible, will of course be persuasive, and often decisive.”  (Internal quotation marks omitted.)  United States v. Moore, 670 F.3d 222, 230 n.3 (2d Cir.), cert. denied, 133 S.Ct. 48, 183 L.Ed.2d 691 (2012).

Prescott, Eliot D., J.