RIPPLE, Circuit Judge.
This case is before us on remand from the Supreme Court of the United States. Mills v. United States, ___ U.S. ___, 117 S.Ct. 478, 136 L.Ed.2d 373 (1996). In its order, the Supreme Court granted Mr. Mills' petition for a writ of certiorari, vacated our earlier judgment and remanded the case to this court for reconsideration in light of the Court's intervening decision in Ornelas v. United States, ___ U.S. ___, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). Having reconsidered the matter in accordance with the mandate of the Supreme Court, we now affirm the judgment of the district court.
Our original opinion, United States v. Banks, 78 F.3d 1190 (7th Cir.1996), contains a full exposition of the background of this case. We shall not repeat that account here. In the earlier appeal, this court, following the precedent established in earlier cases, applied a clear error standard in reviewing the district court's determination that there had been no violation of Mr. Mills' Fifth Amendment rights. Mr. Mills now submits, and the government concurs, that Ornelas requires that we review this determination under a de novo standard. For the reasons set forth in this opinion, we agree with the parties that Ornelas requires application of a de novo standard of review to some of Mr. Mills' contentions.
In Ornelas, the Supreme Court held that a two-step paradigm was to be employed in appellate review of two issues in Fourth
___ U.S. at ___, 116 S.Ct. at 1663. Although Ornelas dealt with the determinations of reasonable suspicion and probable cause in Fourth Amendment jurisprudence, we have recognized that the rationale of Ornelas cannot be limited, in a principled manner, to that single area of jurisprudence. In that decision, the Court had noted that independent appellate review was necessary because of considerations of uniformity of decision and of the predictability and ease of administration that would follow uniformity of decision. See Ornelas, ___ U.S. at ___, 116 S.Ct. at 1662; see also United States v. D.F., 115 F.3d 413, 416 (7th Cir.1997).
Writing for the court in the wake of Ornelas, Judge Coffey concluded, in United States v. Yusuff, 96 F.3d 982 (7th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 999, 136 L.Ed.2d 878 (1997), that the issue of whether a person has been subjected to "custodial interrogation" must be considered under the Ornelas paradigm. He noted that the Supreme Court already had held, in Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), that the same issue ought to be treated as a mixed question of law and fact when it arises in the context of a habeas corpus proceeding under 28 U.S.C. § 2254. He then commented that Ornelas had cast doubt on our circuit precedent that required the use of a deferential review with respect to mixed questions of law and fact in direct appeals. In light of those rulings, Judge Coffey, noting that some recent cases had suggested the appropriateness of a deferential standard of review, nevertheless reaffirmed our holding in United States v. Hocking, 860 F.2d 769, 772 (7th Cir.1988), that "the ultimate issue of whether there was a custodial interrogation is a mixed question of law and fact ... independently reviewable by an appellate court." See Yusuff, 96 F.3d at 988.
More recently, in United States v. D.F., 115 F.3d 413, 417 (7th Cir.1997), we held that the Ornelas paradigm applies to determine whether a confession is voluntary within the meaning of the Fifth Amendment. We therefore abandoned our circuit precedent that had employed a deferential standard. In reaching that determination, we reasoned that the issue of whether a confession is voluntary also requires the application of adjudicative facts to a legal standard and presents the same need for uniformity of meaning and consistency of application that the Supreme Court had encountered in Ornelas with respect to the determinations of reasonable suspicion and probable cause. In conforming our circuit practice to Ornelas, we nevertheless recognized that there was "important common ground" between Ornelas and our earlier decisions because the Supreme Court had stressed in Ornelas that "an appellate court ought to review deferentially the findings of the trial court with respect to the historical facts that underlie the issue of voluntariness." Id.
Today we are confronted with a situation not unlike the one that confronted us when, in D.F., the Supreme Court directed us to reconsider our standard of appellate review of the voluntariness of a defendant's statement. We noted in D.F. that, on the issue of the voluntariness of a confession, the other circuits, although employing a deferential standard of review to the underlying adjudicative facts of the case, traditionally had employed de novo review to the issue of voluntariness of a defendant's statement. Id. at 419. We alone had employed a deferential
On the issue before us today, the voluntariness of the waiver of Miranda rights, the other circuits also are of one mind and employ the same paradigm as they do for assessing the voluntariness of a defendant's statement.
This disparity between our approach and that of the other circuits would be, standing
We believe that Ornelas makes it clear that we ought to join the rest of the Country in holding that the ultimate issue of the voluntariness of a waiver of Miranda rights ought to be reviewed de novo by an appellate court. Like the issue of the voluntariness of a defendant's statement, the voluntariness of a Miranda waiver requires assessment of the historical facts of the case in light of a prevailing legal standard. Like the issue in D.F. and, indeed, like the issue in Ornelas, independent review is necessary to ensure uniformity of decision and the predictability and ease of administration that follow from uniformity of decision.
Against this background, we shall now turn to an assessment of Mr. Mills' submissions.
We first turn to Mr. Mills' contention that the district court erred in its determination that he did not effectively invoke his Miranda rights. Even the most cursory examination of this issue emphasizes the importance of the first step in the Ornelas paradigm: Historical facts are the appropriate domain of the trier of fact, and our review of such findings is deferential. The magistrate judge heard the evidence and determined that Mr. Mills' statement in the squad car on the way downtown was not a clear assertion of his right to be silent but rather a general expression of anger. See United States v. Banks, 78 F.3d 1190, 1196-97 (7th Cir.1996). This determination of the precise content of the message Mr. Mills communicated is a matter upon which we must defer to the trial court. The determination is essentially one of fact: Under the totality of the circumstances, what was the message that Mr. Mills wished to convey?
As we noted in our earlier opinion, an examination of the record supports the conclusion of the magistrate judge that Mr. Mills' outburst was not an invocation of his right to remain silent but rather a general expression of annoyance. This conclusion is not compelled by an examination of the record;
Mr. Mills also asserts that he did not waive voluntarily his Miranda rights. As we have already explained, we believe that, in the wake of Ornelas, the ultimate issue of voluntariness must be reviewed de novo on appeal. Deference must be given to the trier of fact with respect to the underlying historical facts.
We also think that it is important to note that the practical realities that surround the adjudication of this issue in this case and, indeed, in so many others also counsel that we employ the same standard of review as we do for the voluntariness of a defendant's statement. Here, as in many cases in which we are dealing with an allegedly implied as opposed to an explicit waiver, the issue of whether the defendant waived his Miranda rights is virtually indistinguishable from the issue of whether the defendant's statement was voluntary. Mr. Mills' contention is that the officers teased the waiver out of him in the same process as they teased the statement out of him. It is particularly appropriate therefore, as both the defense and the government urge, to apply the same standard of review.
In our earlier opinion, we rehearsed comprehensively the determinations of the magistrate judge with respect to the waiver issue. See Banks, 78 F.3d at 1196-99. We then determined, employing the deferential standard of review required at that time by the precedents of this circuit, that the magistrate judge's determination ought to be sustained. Having revisited the issue under the de novo standard applicable after Ornelas, we are convinced that the trial court was correct in reaching the determination that the waiver, although not explicit, was nevertheless voluntary.
Having reexamined the issues presented by Mr. Mills in light of the decision of the Supreme Court in Ornelas, we believe that the district court committed no reversible error. Accordingly, the judgment of the district court is affirmed.
We have followed the same rule in reviewing state cases within our habeas jurisdiction. See, e.g., Henderson v. DeTella, 97 F.3d 942, 946 (7th Cir.1996) (state habeas case employing deferential review to whether a defendant had voluntarily waived his Miranda rights), cert. denied, ___ U.S. ___, 117 S.Ct. 1471, 137 L.Ed.2d 683 (1997); Baskin v. Clark, 956 F.2d 142, 145 (7th Cir.), cert. denied, 506 U.S. 835, 113 S.Ct. 109, 121 L.Ed.2d 67 (1992) (same); Bryan v. Warden, Ind. State Reformatory, 820 F.2d 217, 219 (7th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 190, 98 L.Ed.2d 142 (1987) (same). In Bryan, this court held that the determination of whether the waiver of Miranda rights had occurred was appropriately characterized as a factual determination. Notably, however, the court did not treat the determination of voluntariness of a waiver as a finding of historical fact, as that term is used in Ornelas. Rather, the court characterized it as a "subsidiary factual inquiry," based on antecedent findings of historical fact such as "the length and circumstances of the interrogation." Bryan, 820 F.2d at 219. What the court in Bryan termed a "subsidiary factual inquiry" falls squarely within the Ornelas definition of a mixed question of fact and law because it requires a determination of "`whether the rule of law as applied to the established facts is or is not violated.'" Ornelas, ___ U.S. at ___, 116 S.Ct. at 1662 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 1791, 72 L.Ed.2d 66 (1982)). We need not determine today whether the same standard of review is appropriate when we review state habeas cases. We note that, in Thompson v. Keohane, 516 U.S. 99, ___, 116 S.Ct. 457, 464, 133 L.Ed.2d 383 (1995), the Supreme Court acknowledged that, in the context of § 2254 cases, it occasionally had "classified as `factual issues' within § 2254(d)'s compass questions extending beyond the determination of `what happened.'" In those instances, the Court noted, the resolution depends heavily on the trial court's appraisal of witness credibility and demeanor. Id. at ___, 116 S.Ct. at 465.