Illegal Two-Step?

by Charles Gillingham

Did officers employ an illegal "two-step" to obtain a confession?

A recent U.S. Supreme Court decision analyzed a Miranda issue commonly referred to as a "two step" procedure to obtain a confession. The U.S. Supreme Court ruled that the "two step" was an illegal means of gaining a confession in Missouri v. Seibert, 542 U.S. 600.

What is an illegal Miranda "two step"?

The "two step" was a tactic in which officers would question a subject about a crime without Miranda warnings. If the suspect confessed the officers would take a short break, then give the Miranda warnings and get the suspect to repeat the confession. The U.S. Supreme Court ruled the subsequent confession illegal. The illegality is that a suspect will likely confess under the subsequent statement under Miranda erroneously thinking that the first statement can be used against him. As the court said, it would only be natural to repeat the first statement again.


In the case of Bobby v. Dixon (2012) 132 S.Ct. 26, Archie Dixon and Tim Hoffner murdered the victim in order to steal his car. Dixon and Hoffner beat the victim, tied him up, and buried him alive, pushing the struggling victim down into his grave while they shoveled dirt on top of him. Dixon then used the victim's birth certificate and social security card to obtain a state identification card in the victim's name. After using that identification card to establish ownership of the victim's car, Dixon sold the vehicle for $2,800.

The victim's mother reported her son missing the day after his murder. While investigating the victim's disappearance, police had various encounters with Dixon. A police detective spoke with Dixon at a local police station. Dixon was apparently visiting the police station to retrieve his own car, which had been impounded for a traffic violation. It was clearly a chance encounter. The detective issued Miranda warnings to Dixon and then asked to talk to him about the victim's disappearance. Dixon refused to answer questions without his lawyer present and left the station.

As their investigation continued, police determined that Dixon had sold the victim's car and forged he victim's signature when cashing the check he received in that sale. Police arrested Dixon for forgery and interrogated Dixon over several hours. Prior to the interrogation, the detectives had decided not to provide Dixon with Miranda warnings for fear that Dixon would again refuse to speak with them.

Dixon said he knew nothing about the victim's disappearance but confessed to the forgery and was arrested. The same afternoon, Hoffner led police to the victim's grave. Hoffner claimed that Dixon had told him that the victim was buried there. After concluding their interview with Hoffner and releasing him, the police had Dixon transported back to the police station.

The police read Dixon his Miranda rights, obtained a signed waiver of those rights, and spoke with Dixon for about half an hour. At 8 p.m. the police, now using a tape recorder, again advised Dixon of his Miranda rights. In a detailed confession, Dixon admitted to murdering the victim but attempted to pin the lion's share of the blame on Hoffner.


Dixon was found guilty and sentenced to death. The case was reversed by the Sixth Circuit for "grievous" Miranda errors. The Supreme Court decided two issues, 1. Did Dixon invoke his right to an attorney when he refused to talk about the victim's disappearance without his attorney? 2. Did investigators use an illegal "two step" procedure to obtain Dixon's murder confession? The Supreme Court said no and reinstated the conviction and sentence.


As to issue number one. The U.S. Supreme Court held that it is well settled that a suspect may only invoke his Miranda right to counsel if he was "in custody" at the time. Here it was clear that Dixon was not in custody as he had freely gone to the police station to recover his impounded car.

Second, as to the questioning and confession to the forgery, no Miranda warnings were given. His confession to the forgery was suppressed. The defense argued that the murder confession was a "two step" procedure that was found to be illegal by the U. S. Supreme Court. Here the Court pointed out that unlike the "two step," Dixon denied any knowledge of victim's disappearance in the first statement. Significantly facts changed between the first statement and the second. Dixon was told that Hoffner was cooperating and had implicated him. Those two factors led the Court to uphold the introduction of the confession. Be aware that the Court took pains to note that the unwarned confession to the forgery was without excuse and had to be suppressed.