As all law students (and viewers of crime dramas) know, an incriminating statement generally cannot be used against a defendant if the defendant was not given the basic Miranda warnings before the statement was elicited by police.  But what if the defendant gives a second, warned statement after a first, unwarned statement?  In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court seemed to give a green light to the use of such statements.  More recently, though, the Court ruled that a second statement was not admissible in Missouri v. Seibert, 542 U.S. 600 (2004), in which police officers deliberately employed a two-step interrogation technique in order to minimize the effectiveness of the Miranda warnings. 

The trouble is that no single opinion drew a majority in Seibert.  A plurality opinion adopted a multifactor test for two-step interrogations, in which the reviewing court would determine whether a “reasonable person in the suspect’s shoes” would have understood that it was possible to refuse further questioning after the Miranda warnings were given.  Meanwhile, Justice Kennedy, providing the crucial fifth vote for the Court’s holding, wrote separately and advocated a different test that focused on whether the police were deliberately circumventing Miranda.  The Seibert split has caused continuing confusion in the lower courts.  (As Jon Deitrich observed in a post earlier today, Justice Scalia recently saved the Supreme Court from a similarly divided result in Arizona v. Gant.)

The Seventh Circuit had an opportunity to choose between the plurality and Kennedy approaches in its opinion last week in United States v. Heron (No. 07-3726). 

David Olofson loaned his Colt AR-15 rifle to Robert Kiernicki on several occasions.  On one occasion, Kiernicki attracted some unwanted attention at the firing range when the gun produced three- and four-round bursts with each trigger pull.  A complaint to the police resulted in an investigation that traced the weapon back to Olofson, who was charged in due course with knowingly transferring a machinegun in violation of 18 U.S.C. § 922(o).  A jury convicted Olofson of this crime, and the judge imposed a sentence of thirty months in prison.

Olofson’s appeal centered on the jury instructions, specifically, the trial judge’s definition of “machinegun” as follows: “any weapon which shoots . . . automatically more than one shot, without manual reloading, by a single function of the trigger.”  Although this language came directly from the statutory definition of “machinegun,” Olofson argued that the judge should have further clarified what the term “automatically” meant based on Staples v. United States, 511 U.S. 600 (1994), in which the Supreme Court defined an automatic weapon this way: “[O]nce its trigger is depressed, the weapon will automatically continue to fire until its trigger is released or the ammunition is exhausted.”  Such a definition might have saved Olofson, for some of the evidence indicated that his gun jammed after shooting just three or four rounds — even if the “trigger [was not] released or the ammunition . . . exhausted.”

Olofson, however, was pretty clearly trying to give more weight to the Staples language than it could reasonably bear, and the Seventh Circuit held as much.