If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

UNPUBLISHED

January 26, 2023

v No. 359394

Wayne Circuit Court

DANIEL DELATORRE, LC No. 21-001138-01-FC

Defendant-Appellee.

Before: SWARTZLE, P.J., and CAVANAGH and REDFORD, JJ.

PER CURIAM.

When police elicit a confession from a defendant in custody before any Miranda1 warning, 

and then elicit a similar confession after a Miranda warning, does the second confession have to 

be suppressed? As explained here, the second confession must be suppressed when “the two-step 

interrogation technique was used in a calculated way to undermine the Miranda warning” and 

curative measures were not taken. Missouri v Seibert, 542 US 600, 622; 124 S Ct 2601; 159 L Ed 

2d 643 (2004) (Kennedy, J., concurring). Under this standard, the trial court suppressed 

defendant’s post-Miranda confession, and we find no error requiring reversal and affirm. 

I. BACKGROUND

A fight broke out between two groups of people at a nightclub, and the victim was allegedly 

involved in the altercation when it continued onto the street outside. As the victim was standing 

in the street, a silver pickup truck with only one working taillight struck him and ran him over. 

The truck then sped off. This was recorded on security footage by a nearby business. The victim 

was taken to a hospital, where he died a few days later from his injuries. 

The police watched the security footage, and, several hours after the hit and run, Detroit 

Police Sergeant Samuel Mackie spotted a truck that matched the description of the truck in the 

video. Defendant was driving the truck when Sergeant Mackie pulled the truck over, and there 

 

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
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were no other passengers in the truck. Sergeant Mackie requested that a Spanish-speaking officer 

assist him because it was clear to Sergeant Mackie that English was not defendant’s primary

language. Detroit Police Officer Timothy Murray responded that he was fluent in Spanish and 

English, but he could not translate “legal jargon” into Spanish. When Officer Murray arrived, 

defendant was handcuffed and sitting on the street curb. Officer Murray’s body-camera footage 

recorded him assisting Sergeant Mackie and other officers in communicating with defendant. The 

body-camera footage demonstrated that defendant was surrounded by at least four officers at all 

times during his questioning, and an officer was physically holding defendant’s arm for more than 

10 minutes. 

Sergeant Mackie, through Officer Murray’s translations, began by asking defendant where 

and with whom he lived. Sergeant Mackie’s questions clearly insinuated that there was an 

accomplice with defendant in the video. Defendant, while handcuffed, retrieved his phone from 

his pocket and unlocked it to get his roommate’s contact information. Sergeant Mackie then said 

“let me see” and took the phone from defendant’s hand. The officers briefly looked through the 

contact information on defendant’s phone, and the phone locked itself after not being used for a 

few seconds. Sergeant Mackie then asked defendant for the phone’s passcode. Once the phone 

was unlocked again, Sergeant Mackie asked defendant which number was his roommate’s number 

and he then asked Officer Murray to translate the information on the phone. After reading through 

defendant’s text messages, Sergeant Mackie exclaimed that it “sounded like” defendant was selling 

drugs.

Thirteen minutes after Officer Murray began translating for Sergeant Mackie, Sergeant 

Mackie told defendant that “they knew what he did,” and that they wanted to know “who did you 

hit.” Defendant responded by saying, “just tell me what I did” because he did not “know what was 

going on.” The officers asked him if he was driving the truck in the early morning hours, and 

defendant responded that he was driving the truck. Sergeant Mackie then instructed Officer 

Murray to tell defendant that he was “going to lock him up for homicide.” Sergeant Mackie asked 

again, “You were driving the truck? You ran the guy over?” Defendant nodded his head in 

agreement, and then answered that he did not know whom he hit. Defendant insisted that he was 

driving the truck and he was alone, even though officers asked who else was in the video with him.

Defendant offered a full admission, before being read his Miranda rights, 15 minutes after 

Officer Murray first began translating for Sergeant Mackie. Sergeant Mackie continued to ask 

who else was driving the truck, and he warned defendant that the police were going to check the 

truck for fingerprints. Twenty minutes after Officer Murray began translating for Sergeant 

Mackie, defendant offered another confession that he was driving the truck and hit the victim. 

Sergeant Mackie then spoke with Officer Murray, saying, “Looking at the video, he’s not the 

driver. I don’t want to see this guy get locked up for something he didn’t do.” Sergeant Mackie 

then instructed the officers to put defendant in the back of a patrol car.

Sergeant Mackie then found online a Miranda-rights warning in Spanish, and he had 

Officer Murray translate it back to him in English to double-check that it was a proper warning. 

Sergeant Mackie then instructed Officer Murray to read the Miranda rights in Spanish to defendant 

because they were going to ask defendant “again if he was the driver.” Twenty-eight minutes after 

Officer Murray first began translating for Sergeant Mackie, Officer Murray advised defendant of 

his Miranda rights, and defendant indicated that he understood his rights. Sergeant Mackie asked 
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defendant to explain again what occurred, and defendant stated that he and his friends got into a 

fight at the nightclub. Defendant continued that while he was driving his truck, the victim got in 

the way and he hit him. Defendant said he asked bystanders if the victim was injured, and that 

they told him that they would take the victim to the hospital. Defendant was charged with firstdegree murder, MCL 750.316, failure to stop at the scene of an accident resulting in death, MCL 

257.617, and assault with a dangerous weapon, MCL 750.82. 

The district court ruled that all of defendant’s statements were inadmissible, but the district 

court otherwise bound defendant over on evidence that is not pertinent to this appeal. After 

defendant was bound over, the prosecutor moved the circuit court to admit the statement that 

defendant gave after he had been advised of his Miranda rights, and defendant moved to suppress 

that statement.

The circuit court held an evidentiary hearing to address the competing motions, and it 

issued a written opinion concerning defendant’s statements. It specifically found:

While the testimony and evidence introduced at the evidentiary hearing 

seem[] to reflect a sincere belief by Sgt. Mackie that someone other than Mr. 

Delatorre struck and severely injured the victim, it is also clear that Sgt. Mackie 

knew or had reason to believe that Mr. Delatorre may have been involved in an 

altercation that led up to the incident under investigation. After a prolonged series 

of questions, Sgt. Mackie instructed Officer Murray to tell Mr. Delatorre that Sgt. 

Mackie knew that Mr. Delatorre was at the Caribbean night club the previous night. 

Sgt. Mackie also had Officer Murray tell Mr. Delatorre that Mr. Delatorre needed 

to stop lying. After Sgt. Mackie asked for the identity of the person driving the 

vehicle that struck the victim the previous evening, Mr. Delatorre admitted that he 

was the driver. At that point, Sgt. Mackie did not cease questioning; but rather, he 

advised Mr. Delatorre that he would be locked up for homicide and continued to 

ask numerous questions about the incident without advising Mr. Delatorre of his 

Miranda rights. It was only after Mr. Delatorre provided more details about his 

involvement and again admitted that he was the driver that he was placed in the rear 

seat of a patrol vehicle and advised of his Miranda rights in Spanish. Mr. Delatorre 

verbally indicated that he understood his Miranda rights, agreed to respond to 

questions, and again admitted that he was the driver of the truck that struck and 

injured the victim.

Assuming, arguendo, that Sgt. Mackie’s questions to Mr. Delatorre were 

part of an effort to identify and apprehend someone other than Mr. Delatorre and 

not a deliberate effort [to] undermine Miranda by engaging in a two-step 

interrogation that was the center of the Seibert decision, after Mr. Delatorre 

admitted that he was the driver of the truck that struck and severely injured the 

victim, questioning should have ceased until Defendant was advised of his Miranda

rights. Sgt. Mackie’s decision not to provide Miranda warnings to Mr. Delatorre 

and to instead continue questioning makes this case distinguishable from the facts 

in [Oregon v Elstad, 470 US 298, 309; 105 S CT 1285; 84 L Ed 2d 222 (1985)] and 

substantially similar to the facts in Seibert.
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In this case, during the second round of questioning Mr. Delatorre was 

asked to repeat the admissions that he made before he was provided with his 

Miranda rights, there was no break in questioning between the first interrogation 

and the post-Miranda questions, the same officers were involved in both 

interrogations, and the post-Miranda questions were, in essence, a continuation of 

the questioning. While Justice Kennedy did not adopt the multi-part test advanced 

by the majority in Seibert, it also clear that the curative measures referenced by 

Justice Kennedy were not utilized in this case. There was not a substantial break 

in time and circumstances between the prewarning statement and the Miranda

warning or an additional warning of the likely inadmissibility of the prewarning 

statement. Moreover, in that there was no evidence that Mr. Delatorre had prior 

contacts with law enforcement or the justice system, one cannot assume that he 

understood his Miranda rights before this incident and knowingly waived them.

Ultimately, the circuit court held that Seibert required suppression of defendant’s statement

after he was advised of his Miranda rights because it was a continuation of the officer’s questioning 

before defendant had been advised of his rights, and the officers had not taken curative measures 

to ensure defendant’s rights. This Court granted leave to consider the prosecutor’s interlocutory 

appeal. People v Daniel Delatorre, unpublished order of the Court of Appeals, entered March 15, 

2022 (Docket No. 359394). 

II. ANALYSIS

This Court reviews de novo a trial court’s decision on a motion to suppress. People v Hyde, 

285 Mich App 428, 436; 775 NW2d 833 (2009). It also reviews de novo questions of constitutional 

law. People v Sadows, 283 Mich App 65, 67; 768 NW2d 93 (2009). A trial court’s findings of 

fact are reviewed for clear error. Hyde, 285 Mich App at 436. “A finding is clearly erroneous if, 

after reviewing the entire record, this Court is definitely and firmly convinced that the trial court 

made a mistake.” People v Swenor, 336 Mich App 550, 563-564; 971 NW2d 33 (2021).

Defendant made several inculpatory statements, both before and after being advised of his 

Miranda rights. “Miranda warnings are not required unless the accused is subject to a custodial 

interrogation.” People v Steele, 292 Mich App 308, 316; 806 NW2d 753 (2011). “Generally, a 

custodial interrogation is a questioning initiated by law enforcement officers after the accused has 

been taken into custody or otherwise deprived of his or her freedom of action in any significant 

way.” Id. Defendant was flanked by multiple police officers, he was put in handcuffs behind his 

back, and his arm was physically held by an officer during most of the questioning. The prosecutor 

correctly concedes that defendant was in custody. Therefore, defendant was entitled to be advised 

of his Miranda rights prior to any questioning by the police here. 

Even though the police improperly questioned defendant without advising him of his 

Miranda rights, the police’s error does not necessarily bar the use of subsequent inculpatory 

statements made by defendant after he had been advised of his rights. “Though Miranda requires 

that the unwarned admission must be suppressed, the admissibility of any subsequent statement 

should turn in these circumstances solely on whether it is knowingly and voluntarily made.” 

Elstad, 470 US at 309.
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In Elstad, 470 US at 301, the defendant, without being advised of his Miranda rights, 

confirmed to the police that he had been to the scene of a burglary. The police then arrested the 

defendant and took him to the police station where he provided a full confession after he was

advised of his Miranda rights. Id. The Elstad Court held that the subsequent confession was 

admissible because it was not a consequence of the prior Miranda violation, and it reasoned that 

even in extreme cases “in which police forced a full confession from the accused through 

unconscionable methods of interrogation, the Court has assumed that the coercive effect of the 

confession could, with time, be dissipated.” Id. at 311-312, 318. Thus, a violation of Miranda 

need not be fatal to the prosecutor’s use of subsequent inculpatory statements in all cases.

The United States Supreme Court returned to the issue in Missouri v Seibert. In that case, 

the Court considered the constitutionality of “interrogating in successive, unwarned and warned 

phases.” Seibert, 542 US at 609. The police admitted that they deliberately used a “two-stage 

interrogation” where they first elicited a confession from the defendant without advising her of her

Miranda rights, and then they followed up with questioning when they elicited the same confession 

after advising the defendant of her Miranda rights. Id. at 610-611. One officer described this as 

a technique specifically designed to evade the requirements of Miranda. Id. at 611. 

The Seibert Court was unable to reach a majority consensus, and instead its decision was 

fragmented into a four-justice plurality, separate concurrences from Justices Kennedy and Breyer, 

and a three-justice dissent. Although the Seibert plurality and Justice Kennedy agreed in the 

outcome, their analyses differed.

The Seibert plurality stated:

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. Could the warnings effectively advise 

the suspect that he had a real choice about giving an admissible statement at that 

juncture? Could they reasonably convey that he could choose to stop talking even 

if he had talked earlier? For unless the warnings could place a suspect who has just 

been interrogated in a position to make such an informed choice, there is no 

practical justification for accepting the formal warnings as compliance with 

Miranda, or for treating the second stage of interrogation as distinct from the first, 

unwarned and inadmissible segment. [Id. at 611-612 (opinion by Souter, J.).]

The plurality went on to determine that advising a defendant of her Miranda rights, in the 

middle of the interrogation, is not effective unless “a reasonable person in the suspect’s shoes 

would [] have understood them to convey a message that she retained a choice about continuing 

to talk.” Id. at 617. In reaching this conclusion, the plurality identified five facts that distinguished 

Seibert from other cases, like Elstad, in which inculpatory statements were given both before and 

after a Miranda warning.

The contrast [in] this case reveals a series of relevant facts that bear on whether 

Miranda warnings delivered midstream could be effective enough to accomplish 

their object: the completeness and detail of the questions and answers in the first 

round of interrogation, the overlapping content of the two statements, the timing 
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and setting of the first and the second, the continuity of police personnel, and the 

degree to which the interrogator’s questions treated the second round as continuous 

with the first. [Id. at 615 (cleaned up).]

In his concurring opinion, Justice Kennedy agreed with the plurality that the defendant’s 

post-warning confession was inadmissible, but he opined that the plurality’s test was too broad. 

Id. at 622 (Kennedy, J., concurring). Justice Kennedy favored “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.” Id. 

In Justice Kennedy’s view, the threshold question should be whether the interrogating 

officer deliberately withheld Miranda warnings “to obscure both the practical and legal 

significance of the admonition when finally given.” Id. at 620 (Kennedy, J., concurring). Justice 

Kennedy contended that “[t]he admissibility of postwarning statements should continue to be 

governed by the principles of Elstad unless the deliberate two-step strategy was employed.” Id. at 

622 (Kennedy, J., concurring). If the interrogating officer acted deliberately, then the postwarning 

statements “must be excluded unless 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 gave two examples of possible curative 

measures: (1) “a substantial break in time and circumstances between the prewarning statement 

and the Miranda warning”; and (2) “an additional warning that explains the likely inadmissibility 

of the prewarning custodial statement.” Id.

The plurality and Justice Kennedy’s concurrence differ in the threshold question that would 

trigger scrutiny beyond Elstad’s analysis. The plurality’s test applies to all situations in which a 

confession is elicited by police interrogation both before and after a defendant is advised of the 

Miranda rights, regardless of any intent by police to skirt around Miranda:

The unwarned interrogation was conducted in the station house, and the questioning 

was systematic, exhaustive, and managed with psychological skill. When the 

police were finished there was little, if anything, of incriminating potential left 

unsaid. The warned phased of questioning proceeded after a pause of only 15 to 20 

minutes, in the same place as the unwarned segment. When the same officer who 

had conducted the first phased recited the Miranda warnings, he said nothing to 

counter the probable misimpression that the advice that anything [the defendant] 

said could be used against her also applied to the details of the inculpatory statement 

previously elicited. [Id. at 616.]

* * *

The impression that the further questioning was a mere continuation of the earlier 

questions and responses was fostered by references back to the confession already 

given. It would have been reasonable to regard the two sessions as parts of a 

continuum, in which it would have been unnatural to refuse to repeat at the second 

stage what had been said before. These circumstances must be seen as challenging 

the comprehensibility and efficacy of the Miranda warnings to the point that a 
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reasonable person in the suspect’s shoes would not have understood them to convey 

a message that she retained a choice about continuing to talk. [Id. at 616-617.]

This differs from Justice Kennedy’s approach, which only applies to situations when the 

police have undertaken a deliberate strategy to undermine Miranda protections:

The plurality concludes that whenever a two-stage interview occurs, 

admissibility of the postwarning statement should depend on “whether [the] 

Miranda warnings delivered midstream could have been effective enough to 

accomplish their object” given the specific facts of the case. This test envisions an 

objective inquiry from the perspective of the suspect, and applies in the case of both 

intentional and unintentional two-stage interrogations. In my view, this test cuts 

too broadly. Miranda’s clarity is one of its strengths, and a multifactor test that 

applies to every two-stage interrogation may serve to undermine that clarity. I 

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. [Id. at 621-622 (Kennedy, J., concurring) 

(cleaned up).]

Federal circuit courts are divided on which approach is the controlling one. See, e.g., 

United States v Guillen, 995 F3d 1095, 1116 (CA 10, 2021) (favoring Justice Kennedy’s 

concurrence); United States v Heron, 564 F3d 879, 884-885 (CA 7, 2009) (favoring the plurality 

opinion). There is no controlling precedent in this State, though most panels have relied on Justice 

Kennedy’s more narrow concurrence. See, e.g., People v Root, unpublished per curiam opinion 

of the Court of Appeals, issued August 31, 2017 (Docket No. 331123), p 9 (“In this case, the 

evidence does not suggest that the detectives engaged in a deliberate two-stage interrogation 

technique designed to evade the requirements of Miranda.”); People v Bush, unpublished per 

curiam opinion of the Court of Appeals, issued June 27, 2017 (Docket No. 330589), p 15 (“If the 

police deliberately refrain from advising a defendant of his rights in order to obtain a confession 

and, after obtaining the confession, then advise the defendant of his rights and obtain the same 

confession, the Miranda warning is ineffective, and the postwarning statement is inadmissible.”); 

People v Mancill, unpublished per curiam opinion of the Court of Appeals, issued May 26, 2016 

(Docket No. 325641), p 8 (“If, however, the police deliberately refrain from advising a defendant 

of his rights in order to obtain a confession and, having once obtained the confession, then advise 

the defendant of his rights and obtain the same confession, the Miranda warning is ineffective and 

the postwarning statement is inadmissible.”) 

Although we recognize that the bench and bar would benefit from clarity on which 

approach is the appropriate one in Michigan, we cannot provide that clarity here. This is because 

under either approach, the police officers’ actions require the exclusion of defendant’s statements. 

Any analysis with regard to which approach is the proper one would be mere dicta. Accordingly, 

we assume without deciding that Justice Kennedy’s more narrow standard is the controlling one.

The record, as set forth by the circuit court, makes plain that the police engaged in a 

calculated, two-stage interrogation of defendant that was intended to elicit incriminating evidence 

from him. Specifically, defendant was asked to repeat his inculpatory statements, there was no 

break in between the police asking defendant questions before and after defendant was advised of 
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his Miranda rights, and the same officers were involved in the questioning. The circuit court 

recognized that, even if it assumed that the police were not deliberately trying to undermine 

defendant’s Miranda rights, the police should have ceased questioning and advised defendant of 

his Miranda rights as soon as he made inculpatory statements.

When reviewing the record, it is clear that the police waited nearly 15 minutes to advise 

defendant of his rights after he had already confessed, and they continued asking defendant 

questions that elicited inculpatory answers before advising him of his Miranda rights. There is 

also no question that the police officers’ questions were calculated to elicit inculpatory responses, 

even if they assumed that defendant would not be admitting to the crimes for which he is now 

charged. This is exemplified by the fact that the officers went through defendant’s phone and 

insinuated that defendant was dealing drugs after translating his text messages. The police also

asked defendant about those text messages without advising him of his Miranda rights.

The circumstances in this case are not akin to the facts in Elstad, where the officers may 

not have realized the suspect was in custody or that warnings would be required. In this case,

defendant’s subsequent confession was clearly a consequence of his first confession that was in 

violation of his Miranda rights. Additionally, the nature of the questions that the officers asked, 

and the answers that defendant gave, clearly should have been done within a Miranda context. 

This is unlike the situation in Elstad, where the officers could not reasonably have known that their 

questions would elicit a confession. There was also no substantial break in the time between the 

confessions, or the scene of the confession, by which the coercive effect of the first confession 

would have dissipated. 

Instead, these facts trigger the analysis provided by Justice Kennedy in Seibert because a 

two-step strategy, with questions calculated to elicit inculpatory statements, was employed by the 

officers. The record shows that the interrogating officer acted deliberately by asking questions 

that were calculated to elicit a confession, even if those questions were attempting to elicit a 

confession to a crime for which defendant was not charged. Additionally, the questions and 

answers that were provided before defendant was advised of his Miranda rights were detailed and 

complete, asking defendant if he was driving the truck when it struck the victim. In fact, the 

officers treated the second round of questions as continuous with the first, as exemplified by 

Sergeant Mackie’s exclamation that they were “going to ask [defendant] again if he was the driver”

after advising him of his Miranda rights. Lastly, the officers who began the initial questioning 

also advised defendant of his Miranda rights, and also continued to interrogate him after that 

advisement.

There was not a substantial break in time and circumstances between the prewarning 

statement and the Miranda warning as defendant was placed in the back of a police car, advised 

of his Miranda rights, and re-questioned within 20 minutes. There was also no explanation, or 

additional warning, explaining to defendant that his prewarning statements were likely 

inadmissible. Therefore, there were not curative measures taken to ensure that a reasonable person 

in defendant’s situation would understand the effect of the Miranda warning. 

III. CONCLUSION
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For the reasons state here, we are not left with a definite and firm conviction that the circuit

court erred when finding that the police officers engaged in a calculated two-stage interrogation. 

Further, the circuit court did not err when granting defendant’s motion to suppress because, when 

applying Justice Kennedy’s concurrence, there was not “a substantial break in time and 

circumstances between the prewarning statement and the Miranda warning,” and there was not 

“an additional warning that explain[ed] the likely inadmissibility of the prewarning custodial 

statement[s].” Seibert, 542 US at 622 (Kennedy, J., concurring). Therefore, we affirm the circuit 

court’s suppression of defendant’s statements.

/s/ Brock A. Swartzle 

/s/ Mark J. Cavanagh 

/s/ James Robert Redford