The Sixth Circuit recently accepted Dixon v Houk for en banc review. In that case, the police obtained a confession after five hours of interrogations without Miranda warnings, and then gave the Miranda warnings before obtaining a taped confession. The panel opinion, written by Judge Merritt, held that Missouri v. Seibert, 542 U.S. 600 (2004), was meant to stop such a “deliberate question-first, warn-later strategy” that police departments had adopted after Oregon v. Elstad, 470 U.S. 298 (1985). The language that perhaps attracted en banc review was the opinion that the result was not just required by Seibert, but directly by the constitution:
A confession obtained by this kind of police pressure is inadmissible under Miranda and coerced and involuntary under the Due Process Clause. If the consequences of this kind of deliberate, unlawful conduct specifically designed to violate Miranda and get a confession is allowed to prevail, as our dissenting colleague contends, the time has come to simply overrule Miranda.
The dissent, written by Judge Siler, emphasizes the breath Elstad and minimizes the effect of Seibert. Judge Siler finds that the second confession was permissible as a voluntary confession under Elstad because of the four-hour lapse between the two confessions and the police officers' claims that Dixon said his attorney advised him to talk to the police (however crazy that sounds).