State v. R.W.

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No. 120,854

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellant,

v.

R.W.,
Appellee.


SYLLABUS BY THE COURT

1.
The Fifth Amendment to the United States Constitution protects an individual's
right against self-incrimination. This right is extended to the states through the Fourteenth
Amendment. The Kansas Legislature has codified the right against self-incrimination in
K.S.A. 60-460(f).

2.
The touchstone consideration in cases involving issues of self-incrimination is
voluntariness. The burden is on the State to prove—by a preponderance of the
evidence—that confessions or inculpatory statements made to law enforcement officers
are voluntary.

3.
Courts look at the totality of the circumstances on a case-by-case basis to
determine whether impermissible coercion was present and whether that coercion
overbore the defendant's free and independent will. Impermissible coercion can be either
mental or physical.

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4.
Generally, courts determine whether confessions or inculpatory statements made
to law enforcement officers are voluntary by looking to the following nonexclusive
factors: (1) the accused's mental condition; (2) the manner and duration of the interview;
(3) the accused's ability to communicate on request with the outside world; (4) the
accused's age, intellect, and background; (5) the officer's fairness in conducting the
interview; and (6) the accused's fluency with the English language.

5.
When the accused is a juvenile, courts must exercise the greatest care and
heightened sensitivity in assessing the validity of a confession or inculpatory statement
made to law enforcement officers. In cases involving the custodial interrogation of
juveniles and if legal counsel is not present, courts not only must make sure that a
confession or inculpatory statement was not coerced but also that it was not the product
of ignorance of rights or of adolescent fantasy, fright, or despair.

6.
In assessing the voluntariness of a juvenile's confession or inculpatory statements,
courts are to consider five additional nonexclusive factors: (1) the juvenile's age; (2) the
length of questioning; (3) the juvenile's education; (4) the juvenile's prior experience with
law enforcement officers; and (5) the juvenile's mental state.

7.
Statements made to juveniles that are likely to mislead them regarding the nature
and legal consequences of a custodial interrogation have the potential to render a
confession or inculpatory statement involuntary.



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8.
Even for an adult, physical and psychological isolation during a custodial
interrogation can undermine an individual's will to resist and compel a person to speak
when they would not otherwise do so freely. The risk of such isolation is even more
troubling when the subject of the interrogation is a juvenile.

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed April 10, 2020.
Affirmed.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellant.

Branden Smith, of Smith Legal, L.L.C., of Lawrence, for appellee.

Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.

BRUNS, J.: R.W.—who was a juvenile at the time—was interrogated for several
hours at a police facility in Lawrence after being picked up from his high school by two
police officers. Several months later, the State charged R.W. with multiple criminal
counts including rape, aggravated battery, and other offenses. The district court certified
him for trial as an adult. Prior to trial, the district court granted R.W.'s motion to suppress
the statements he made during the interrogation because they were not voluntarily made.
The State then filed this interlocutory appeal claiming that the district court erred in
suppressing R.W.'s statements. After reviewing the record, we find no error. Thus, we
affirm the district court's suppression order.





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FACTS

In April 2017, R.W. was a 17-year-old junior at Free State High School. Although
he was unaware of it at the time, R.W. was the subject of a rape investigation by the
Lawrence Police Department based largely on allegations made by his former girlfriend.
On the afternoon of April 25, a School Resource Officer (SRO)—who R.W. considered
to be a mentor and a friend—introduced him to two Lawrence Police Officers, Lindsay
Bishop and Joshua Leitner. Officers Bishop and Leitner were both wearing police vests
with holstered guns.

The two officers presented themselves to R.W. by their first names—Lindsay and
Josh—before briefly explaining:

"We are, um, juvenile investigators, so we're just like a special kind of police
officer that, it's our job to talk to kids, primarily. [W]e deal with stuff usually that
sometimes happens at school but sometimes, like, out in the community. So, kind of like
[the School Resource Officers], but have a little bit different job."

Officers Bishop and Leitner did not tell R.W. why they wanted to meet with him
other than saying that they wanted to talk to him "about some stuff that occurred."
Although the officers told R.W. that he was not under arrest, they did not tell him that he
was the subject of a criminal investigation. Officer Bishop then requested that R.W. go
with them in what she called a "super-secret," unmarked patrol vehicle to a police facility
known as the Investigations and Training Center. She told R.W. that they would bring
him back to school "when we're done talking."

R.W. agreed to go with the officers, and the SRO escorted him to the patrol
vehicle. The SRO officer did not go with them to the police facility, and the police
officers did not offer R.W. an opportunity to call his mother to tell her where he was
going. While in the patrol vehicle, R.W. told Officers Bishop and Leitner about his
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relationship with the SRO who had introduced them. He described the SRO as a "really
nice guy" and a "nice mentor" whose son had recently died. R.W. then explained how he
had bonded with the SRO since he had also recently lost his father.

After expressing sympathy for the death of his father, Officer Bishop again told
R.W. that her job is "kind of like [an SRO], where we work with kids, but we . . . are not
assigned to a school or anything." In addition, the officer told R.W. that she and Officer
Leitner "just kind of talk to, um, kids when they are, like, the victim of a crime or when
stuff like that is going on." She added, "instead of like a mentory role, we kinda do more,
I don't know, other kinds of investigations."

Officer Leitner further explained that "a lot of times, the . . . guys in the schools,
they don't have as much time to devote to longer-term . . . type of incidents with kids or
crises that they're going through." Instead, the officer explained that such circumstances
fall to them when there is "something going on that . . . needs . . . closer attention." Still,
the officers did not reveal why they wanted to talk to R.W. nor did they inform him that
he was the subject of a criminal investigation. During the rest of the drive, the officers
talked casually with R.W. about his professional interests.

At the police facility, R.W. was left alone in the interrogation room for several
minutes. While he was waiting, R.W. took several deep breaths and nervously picked at
his fingers. When Officers Bishop and Leitner returned to the room, they talked to R.W.
about being in high school and joked with him about the food served at a local restaurant
where he had a part-time job. About 20 minutes after first meeting R.W. at the high
school, Officer Bishop indicated that they wanted to "ask [him] some questions."

Officer Bishop then told R.W., "because you're here and because I drove you, um,
and you're in the police station and it's like a locked facility and stuff like that, I am going
to read you your Miranda rights, just like on TV, but you're not under arrest or anything
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like that." She also told him that he could leave or "stop answering questions at any
time." Officer Bishop added—while laughing—that the officers could take him "home or
wherever . . . in Lawrence. I'm not going to take you to, like, Disney World." Before
reading R.W. his Miranda rights from a laminated card, Officer Bishop casually added,
"let me . . . read this thing . . . it's like, you know, a formality."

R.W.—a juvenile alone with two police officers in an interrogation room of a
locked police facility and unaware of the purpose of their conversation—agreed to speak
with Officers Bishop and Leitner. After he had done so, Officer Bishop told R.W. for the
first time that she wanted to talk to him about his relationship with his former girlfriend.
Before continuing, Officer Bishop again compared her role to that of an SRO but
distinguished her job by telling R.W. that she focuses on things occurring outside of
school.

Officer Bishop then began asking R.W. to talk about his relationship with his
former girlfriend. Even then, there was no mention of a criminal investigation or the
allegations made by his former girlfriend. R.W. explained that he and his former
girlfriend began a romantic relationship in March 2015 that lasted until August 2016. He
explained that things went well for a while before hitting "a rough spot" because of their
mothers not getting along. Both R.W. and his former girlfriend had lost their fathers.

According to the record, R.W. had found his father's body after a car fell on top of
him a little over a year before the relationship with his former girlfriend started. R.W.
told the officers that the conflict with his former girlfriend was hard for him because he
was still "emotionally unstable" after the death of his father. He explained that the
relationship between he and his former girlfriend became "toxic" before it finally ended.
Officers Bishop and Leitner offered reassurance to R.W. while he told his story.

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The officers told R.W. that they did not think he was "a bad person" and stated
that they realized jealousy is a significant issue "when you're 15 . . . and you're new in a
relationship." Officer Leitner added, "we're just trying to understand." R.W. then told the
officers that his former girlfriend did not trust him because he had lied, insinuating
potential drug or alcohol use with his friends. Again, the officers were quick to reassure
R.W. that they were "not here to get you in trouble for anything like that" and offered
their own examples of problems they had caused as teenagers. Officer Leitner told R.W.,
"when you're a teenager you . . . do goofy things like that."

Officer Bishop refocused the conversation by telling R.W., "we're just trying to
kind of understand what your guys' relationship was like and maybe some of the issues
that you had." Yet, she still did not tell R.W. that he was being investigated in a criminal
matter. Officer Leitner then asked R.W. if any of his arguments with his former girlfriend
had become physical. In response, R.W. acknowledged that he did "get out of control" a
few times during the relationship and admitted to grabbing her arm. In response, Officer
Leitner told R.W. that his behavior was "kind of normal for a kid that's 15, 16 years old"
and that "part of the growing process is learning how to, like, control your frustration,
control your anger and communicate effectively."

The officers then asked R.W. for more details about any arguments during his
relationship with his former girlfriend that may have gotten out of control. After several
minutes, Officer Bishop pressed R.W. about a specific incident at school in which he
allegedly pushed his former girlfriend off a chair. The incident would later be the basis
for an aggravated battery charge brought against R.W. Although he denied that he had
pushed her off a chair, the officers continued to question R.W. on the subject. After
nearly 10 minutes of denials and being pressed for an additional explanation, R.W. told
the officers that his former girlfriend would "lie about a lot of things."

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At that point, about 40 minutes into the interrogation, R.W. told the officers that it
was possible that his former girlfriend might claim that he had raped her. Indeed, the
officers were acutely aware of this allegation since they had interviewed R.W.'s former
girlfriend a month earlier. R.W. then explained in general terms how he had manipulated
his former girlfriend into having sex. In response, Officer Bishop reassuringly told R.W.,
"thank you for sharing that with us and talking about this, and we'll figure it out together,
okay?"

When asked to describe his first sexual encounter with his former girlfriend, R.W.
struggled to remember the details. At that point, Officer Leitner whispered to R.W., "It's
okay to be honest. It's okay. . . . I want to say, we've heard everything before. You know
what I mean." R.W. then began nervously sharing intimate details of his first sexual
encounter with his former girlfriend. When asked whether he ever continued to have sex
with her after being told to stop, R.W. initially denied having done so. But when pressed
again by Officer Leitner, he admitted that she had told him to stop. Officer Bishop then
told R.W. to take a big breath, and Officer Leitner added, "it's going to be okay."

After asking if R.W. felt better, Officer Bishop went on to tell R.W.:

"So, [R.W.], what I think is . . . that you are a really smart, articulate young man
who has a super bright future; and I think you have been through a lot in your short life. I
think you've been through more than any of us should ever have to go through with
witnessing trauma and having, um, . . . a family destroyed, um, and then having a
complicated relationship with a [former] girlfriend and her mom being controlling. Um,
and I think you've been through more than, than anybody really ever should, but, more in
your, and these are pivotal developmental years.
"Um, and I think that you had some anger and some frustration, and you're trying
to figure out how to control that and how to deal with that and how to move forward and
how to figure out who you are and what your priorities are and what your morals are and
all those kind of things.

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"And I don't think that you're a bad kid and [Officer Leitner] doesn't think you're
a bad kid. And we think you're just trying to figure out who you are and what you're
about, okay?

"And I know from doing this for years and years and years that sometimes when
you hold in a secret like that, like I could just see you, um, you know, just so stressed,
and, um, that it feels better just to come clean and to come to terms, . . . and to own what
we did, and be honest about what we did, so that we can heal and move forward and, and
so that [your former girlfriend] can heal and move forward. Okay?

"And I want to go through this process, and I want to make sure that, that we
understand and we get out everything on the table today that we need to talk about so that
you can heal and clear your conscience and say, you know what, I'm going to leave all of
that that I've been holding inside here, I'm going to leave it right here.

"I'm going to walk away from that, and I'm going to move forward, and I'm going
to have a successful future, um, and [your former girlfriend]'s going to heal, and she's
going to be able to move past this and, and move on with her life, too."

Immediately after Officer Bishop said this, Officer Leitner also reassured R.W.,
saying:

"Nobody expects you to be perfect. Right? [Your former girlfriend]'s not perfect,
you're not perfect. I'm not perfect. That's okay.

"You know, that's part of growing up, is making mistakes and figuring out, you
know, what you did wrong and figuring out how to handle something that you [did]
wrong, so that you can grow as a person.

"And, and obviously we . . . don't want to make mistakes again. The only way we
can do that is by learning from them, alright? And that's as much a part of this process as
everything. Alright? That's okay. That's . . . what being a teenager's all about is growing
and learning. Alright? Okay."

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At this point, the officers had still not told R.W. that he was the subject of a
criminal investigation. Instead, Officer Bishop and Officer Leitner told him that what had
happened between he and his former girlfriend was part of "being a teenager" and
"growing up." They also told him that they just wanted to "understand" the nature of the
relationship so that R.W. could "clear his conscience," "heal," "leave it all there," "walk
away," "move forward," and "have a successful future." After hearing repeated
reassurances for nearly 70 minutes, R.W. began to make additional inculpatory
statements to the officers.

After more than three hours of questioning, R.W. was asked by Officer Bishop
what he thought should happen next. Echoing the reassurances given to him by the
officers, R.W. said that he "would like to be able to move past this." Then, Officer
Leitner asked R.W. if he thought there should be legal punishment for what he did to his
former girlfriend. R.W. responded that he "hope[d] not" and did not know what would be
appropriate.

Officer Bishop interjected that she "want[ed] to be on front street" and told R.W.
that she was going to submit a report to the District Attorney's Office for prosecution. For
the first time—after nearly four hours alone with the officers—Officer Bishop suggested
that "we do kinda need to tell your mom what's going on." In response, R.W. said that his
mother was "probably wondering why I'm not home by now." A few minutes later,
Officer Bishop asked R.W. whether he had any questions. Expressing concern, R.W.
asked the officers what the "worst case scenario" might be and he was told that he could
face prosecution as an adult as well as imprisonment for the crime of rape.

The officers then asked R.W. whether he felt "suicidal" and noted his prior mental
health issues—which they had evidently learned from previous witness interviews.
Although R.W. denied having suicidal feelings, the officers offered to drive him to the
hospital if he ever had a mental health crisis in the future. At that point, the officers
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briefly left the interrogation room. After they did so, R.W. dropped his head and took
several deep breaths. A short time later, the officers returned and took R.W. home.

On August 28, 2018, the State charged R.W.—who had been certified to be tried
as an adult—with multiple counts of rape as well as several other criminal offenses. Prior
to trial, R.W. moved to suppress the statements he had made to Officers Bishop and
Leitner during his interrogation. The district court held an evidentiary hearing on the
motion. In addition to hearing the testimony of Officer Bishop and listening to the
argument of counsel, the district court judge noted that she had reviewed the video of the
interrogation multiple times.

On January 30, 2019, the district court entered a nine-page memorandum decision
in which it granted R.W.'s motion to suppress. In doing so, the district court set forth
findings of fact—describing the recordings of the interrogation in detail—and
conclusions of law. Ultimately, the district court concluded "that based on the totality of
these circumstances, the statements made by [R.W.] were not the product of a free and
independent will. The promises, benefits, and reassurances made by the officers resulted
in defendant's will being overborne."

Thereafter, the State filed this interlocutory appeal pursuant to K.S.A. 2019 Supp.
22-3603.

ANALYSIS

On appeal, the State argues that "the cordial tone of the interview did not render
[R.W.'s] Miranda waiver involuntary, and the officers did not coerce or trick him into
confessing. In short, the district court should not have suppressed his statements, and the
State respectfully requests this court reverse that decision." In response, R.W. argues that
the district court appropriately found that "[t]he totality of the circumstances
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demonstrates [his] statements are not voluntary, nor are they free from coercion or
suggestion."

Our review of a district court's decision on a motion to suppress evidence is
bifurcated. We review the factual underpinnings of the decision to determine whether
they are supported by substantial competent evidence while our review of the ultimate
legal conclusion drawn from those facts is de novo. State v. Lowery, 308 Kan. 359, 364,
420 P.3d 456 (2018). Substantial competent evidence is evidence that a reasonable person
could accept as adequate to support a conclusion. In determining whether the district
court's findings of fact are supported by substantial competent evidence, we do not
reweigh the evidence, assess the credibility of witnesses, or resolve evidentiary conflicts.
State v. Boggess, 308 Kan. 821, 825, 425 P.3d 324 (2018).

The Fifth Amendment to the United States Constitution protects an individual's
right against self-incrimination. Moreover, this right is extended to the states through the
Fourteenth Amendment. Chavez v. Martinez, 538 U.S. 760, 766, 123 S. Ct. 1994, 155 L.
Ed. 2d 984 (2003); Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S. Ct. 1489, 12 L. Ed. 2d 653
(1964). The Kansas Legislature has codified the right against self-incrimination in K.S.A.
2019 Supp. 60-460(f). See State v. Guein, 309 Kan. 1245, 1261-62, 444 P.3d 340 (2019).
A confession is coerced—and inadmissible at trial—when a defendant's "will was
overborne." Yarborough v. Alvarado, 541 U.S. 652, 667-78, 124 S. Ct. 2140, 158 L. Ed.
2d 938 (2004); see also Schneckloth v. Bustamonte, 412 U.S. 218, 225-26, 93 S. Ct. 2041,
36 L. Ed. 2d 854 (1973).

The touchstone consideration in cases such as this is voluntariness. State v.
Palacio, 309 Kan. 1075, 1087, 442 P.3d 466 (2019). The burden is on the State to prove
that confessions or inculpatory statements made to law enforcement officers are
voluntary. In determining whether a defendant's statements are voluntary, we look at the
totality of the circumstances. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013).
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"The essential inquiry is whether the statement was the product of the free and
independent will of the accused." State v. Groschang, 272 Kan. 652, 662, 36 P.3d 231
(2001).

When a defendant claims that a law enforcement officer used coercion to obtain
incriminating statements, the State bears the burden to prove—by a preponderance of the
evidence—that the defendant made the statements voluntarily. State v. Garcia, 297 Kan.
182, 188, 301 P.3d 658 (2013). Kansas courts employ a case-by-case evaluation to
determine whether impermissible coercion was present and whether that coercion
overbore the defendant's free and independent will. Guein, 309 Kan. at 1260.
Impermissible coercion can be either mental or physical. State v. Stone, 291 Kan. 13, 21,
237 P.3d 1229 (2010).

Generally, courts determine whether a confession or statement made to law
enforcement officers was voluntary by looking to the totality of the circumstances, aided
by the following nonexclusive factors: (1) the accused's mental condition; (2) the manner
and duration of the interview; (3) the accused's ability to communicate on request with
the outside world; (4) the accused's age, intellect, and background; (5) the officer's
fairness in conducting the interview; and (6) the accused's fluency with the English
language. State v. Gilliland, 294 Kan. 519, Syl. ¶ 3, 276 P.3d 165 (2012).

In addition, when—as here—the accused is a juvenile, courts must exercise "'the
greatest care'" in assessing the validity of a confession or statement made to a law
enforcement officer. State v. Mays, 277 Kan. 359, 373, 85 P.3d 1208 (2004). In cases
involving the interrogation of juveniles and counsel is not present, courts must exercise
great care "'to assure that the admission was voluntary, in the sense not only that it was
not coerced or suggested, but also that it was not the product of ignorance of rights or of
adolescent fantasy, fright or despair.'" State v. Donesay, 265 Kan. 60, 69, 959 P.2d 862
(1998) (quoting In re Gault, 387 U.S. 1, 55, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]); see
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also State v. Gibson, 299 Kan. 207, 215, 322 P.3d 389 (2014) ("A juvenile's inculpatory
statement must be voluntary and free from coercion or suggestion and must not be the
product of ignorance of rights or adolescent fantasy, fright, or despair.").

Accordingly, when assessing the voluntariness of a juvenile's confession or
inculpatory statements, Kansas courts have articulated five additional nonexclusive
factors for consideration. State v. Young, 220 Kan. 541, 546-48, 552 P.2d 905 (1976).
These factors include: (1) the juvenile's age; (2) the length of questioning; (3) the
juvenile's education; (4) the juvenile's prior experience with law enforcement officers;
and (5) the juvenile's mental state. 220 Kan. at 546-48. "Clearly, there is overlap among
the factors articulated in a case involving a juvenile and those usually considered when
the voluntariness of a defendant's statement to [law enforcement officers] is at issue; but
just as clearly, our caselaw recognizes a heightened sensitivity when the accused is a
juvenile." Gibson, 299 Kan. at 215.

Under our standard of review, we first examine the record on appeal to determine
if it is competent and substantial enough to support the district court's findings of fact.
Here, there are recordings that tell us exactly what was said by the officers as well as
what was said by R.W. This evidence includes both an audio recording of R.W.'s brief
trip with the officers to the police station and a video recording of R.W.'s interrogation.
Although the State may disagree with the district court's interpretation of the evidence,
we conclude that substantial competent evidence supports the district court's factual
findings set forth in a comprehensive nine-page, single spaced, memorandum decision.

We also find the district court applied the correct legal analysis in this case.
Specifically, the district court looked to the general factors set forth in Gilliland, 294
Kan. 519, Syl. ¶ 3, as well as the additional factors for juveniles set forth in Young, 220
Kan. at 546-48. In applying these factors, the district court found:

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"[R.W.] was seventeen (17) years old and a junior in high school. He had no prior
experience with law enforcement except the SROs at school, with whom had a good
relationship and who he saw as a mentor. Although they are police officers, their role in
the school is very different from the role of juvenile investigators. They are there to help
the kids in a non-adversarial role, to build positive relationships and serve as mentors.
[R.W.] knew [the] SRO . . . and considered him a good guy and a mentor. They bonded
over the death of loved ones, [R.W.] having lost his father and [the SRO] his son. [The
SRO] also helped [R.W.]'s brother through 'some stuff.'

"When Officer Bishop and Officer Leitner arrived at Free State High School,
unannounced, they contacted [R.W.] with the help of [the SRO]. They introduce
themselves not as Officer Bishop and Officer Leitner but only by their first names. They
tell [R.W.] their job is 'kind of like [the SRO's].' They tell him they 'talk' to kids when
they are 'victims of a crime or when stuff like that is going on.' While that may be part of
their duties it is certainly not why they want to talk to [R.W.].

"[R.W.] agreed to go to the ITC to talk with them, although he is not told he has
an option. At the ITC, [R.W.] still has not been told why they want to talk to him, only
according to Officer Bishop, that she wants to ask him some questions. The interview is
lengthy—four (4) hours. [R.W.]'s mental condition or state left him vulnerable. He told
this to the officers and they sympathized with him telling him he 'had been through a lot
in his short life . . . [M]ore than any of us should have to go through with witnessing
trauma and having a family destroyed . . . [.'] They had been told [R.W.] was sad and
depressed and had been hospitalized for mental health issues. From the onset, he told
them he was 'emotionally fragile' and was 'going through a lot.' He was not given the
option of having a parent present or given the opportunity to call his mom."

The district court further found:

"Still not knowing why they want to talk with him, [R.W.] waived his rights. Up
until [R.W.] says that [his former girlfriend] tells lies and is telling people he raped her,
everything is chatty, chummy. They refer to their talk with [R.W.] as a 'conversation.' He
is told they just want to understand what your guys' relationship was like. [R.W.] has
been given no reason to think this is different from his conversations with [the SRO].
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They help kids. They want to understand him. He is not told they are investigating a
crime. He is not told he is a suspect in a crime. In fact, he is never told why they want to
talk to him. It's almost like a therapy session. They lead him to believe that they are there
to make things better, to understand and to help him.

"The level of the officers' omissions about their purpose is illustrated when, after
about fifty three (53) minutes, [R.W.] says: 'I don't know if you're aware but one of the
big ones [lies] is the possibility that I'd been raping her.' So they encourage him to just
tell them about that, still not knowing that this is the subject of their investigation or even
that it is an investigation.

"[R.W.] continues to talk a bit more about the relationship with [his former
girlfriend]. When he hesitates Officer Bishop tells him to take a big breath. Officer
Leitner tells him 'it's going to be okay.' Then comes Officer Bishop's big speech which is
set out in full [above], and Officer Leitner's affirmation that [R.W.] just needs to learn
from his mistakes; that's 'as much a part of this process as everything.' It's okay. 'That's
what being a teenager's all about is growing and learning.' [R.W.] has now been reassured
by both officers that nothing will happen if he 'gets it all out.' He can leave it all there. He
can walk away and move forward and have a successful future. The interrogation
continues and [R.W.] makes further incriminating statements."

The record reflects that R.W. and the SRO bonded during a vulnerable period of
mutual grief after the death of R.W.'s father and the death of the SRO's son. Prior to the
interrogation, R.W.'s only experience with law enforcement was with the SRO, with
whom he had a "mentor" relationship. Nothing in the record suggests that R.W. had ever
had an adversarial interaction with a law enforcement officer or had previously been
involved in a criminal investigation. As the district court appropriately noted, R.W.'s
experience with law enforcement officers was based on emotional support, vulnerability,
and trust.

The record confirms that Officers Bishop and Leitner introduced themselves to
R.W. using their first names rather than using their professional titles. This informality
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had the potential to confuse the roles of the SRO and the investigating officers. This
confusion was amplified by the repeated comparisons drawn by Officers Bishop and
Leitner between their roles and the SRO's role. In particular, the officers repeatedly
represented to R.W. that their job was much like the SRO's position and that their
primary role was also to "talk to kids." Indeed, the only significant distinction that
Officers Bishop and Leitner provided was that—unlike an SRO that focuses on school
issues—they focus on things that happen "out in the community."

We note that Officer Bishop did tell R.W. that her role was less "mentory" than the
role of the SRO and she did "other kinds of investigations." Still, neither she nor Officer
Leitner told R.W. that they were performing a criminal investigation or talking to him for
that reason. Instead, as the district court accurately pointed out, Officer Bishop went so
far as to tell R.W. that they talk to kids who are "victims" of crimes. Likewise, Officer
Leitner bolstered the potential for confusion by adding that he and Officer Bishop work
with kids on "longer-term" incidents and "crises that they're going through."

We agree with the district court that the statements made by Officers Bishop and
Leitner had the significant potential to confuse a juvenile about the purpose and the
gravity of his "talk" with the officers. We also agree with the district court that "the
fairness of the officers conducting the interrogation, is the crucial factor in this case." In
this regard, the district court paid particular attention to the frequent reassurances that
Officers Bishop and Leitner offered to R.W. throughout the four hours that they spent
with him.

The district court also expressed concern that the officers conducted much of the
interrogation like a "therapy session" instead of a criminal investigation. The district
court's concern is reasonable in light of the following statement made by Officer Leitner
to R.W. during the interrogation:

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"I don't think you're a bad kid. I really don't. Alright? But I also, like [Officer
Bishop] was explaining earlier, you know, I think you're a kid who's growing up. I think
you're a kid who's maybe done some things that you regret. And I think you're a kid
who's maybe made some bad choices. And I think there is every kid out there who's 17
years old, has probably made bad choices. Right? So, I'm not saying you're a bad kid
because you made bad choices.

"But, at the same time, we can't move on, and learn, and grow from our bad
choices until we come to terms with what really happened. And until we come to terms
with things that we're not proud of, and things that might have hurt somebody. Right?

"And they can't move on, sometimes, until that whole thing, you know, comes
out, and is realized, and, and there is a discussion about it. I mean, and that's why
counseling works. You know what I mean, because we've got to talk about things
sometimes for them to make sense in our heads.

"So, part of what we're doing here is, is, maybe we're kind of de facto counselors
today. Right, and that's part of what we're doing is trying to just work through what
happened. Alright?" (Emphasis added.)

As the district court noted, Officers Bishop and Leitner repeatedly made
statements that suggested that R.W.'s behavior was normal for a person his age and
insisted that they were "just trying to understand." For instance, the officers empathized
that jealousy was difficult, particularly for a teenager who was new to romantic
relationships. When R.W. hinted at possible drug use, the officers insisted that it was a
normal, "goofy," teenage behavior. Even when R.W. admitted that he grabbed his former
girlfriend's arm during arguments, the officers reassured him that his behavior was "kind
of normal for a kid that's 15, 16 years old," emphasizing that "part of the growing
process" was working on "expressing [himself] a little bit better."

When the conversation shifted to the sexual nature of R.W.'s relationship with his
former girlfriend, his demeanor changed, and he stopped speaking. In response, Officers
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Bishop and Leitner made a series of reassurances to R.W. that the district court found
could have easily misled him into believing that the stakes in his continuing to talk with
the officers were low. Like the district court, we find the following statement made by
Officer Bishop to R.W. to be particularly problematic:

"And I want to go through this process, and I want to make sure that, that we
understand and we get out everything on the table today that we need to talk about so that
you can heal and clear your conscience and say, you know what, I'm going to leave all of
that that I've been holding inside here, I'm going to leave it right here.

"I'm going to walk away from that, and I'm going to move forward, and I'm going
to have a successful future, um, and [your former girlfriend]'s going to heal, and she's
going to be able to move past this and, and move on with her life, too."

To a juvenile—especially one whose only experience with a law enforcement
officer prior to the interrogation had been a relationship much like that of a guidance or
grief counselor—these types of reassurances are at best misleading. The misleading
nature of such statements is even more significant when viewed considering the
comparisons between the SRO's role and that of Officers Bishop and Leitner. Although
the officers may have had good intentions, statements made to juveniles that are likely to
mislead them regarding the nature and legal consequences of an interrogation have the
potential to render a confession involuntary.

As the district court also highlighted, the potential for confusion was exacerbated
by the fact that the officers did not disclose the true purpose of their "talk" with R.W.—
which was to discuss the potential for legal liability for the crime of rape—until several
hours after the interrogation began. In addition, like the district court, we also find the
length of the interrogation to be significant. We note that our court has previously found
an interrogation lasting less time than the one in this case to be a "lengthy interrogation"
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that can tip the scales in favor of the accused. See State v. Bowlin, 43 Kan. App. 2d 671,
690-91, 229 P.3d 402 (2010).

It is important to recognize that "[e]ven for an adult, the physical and
psychological isolation of custodial interrogation can 'undermine the individual's will to
resist and . . . compel him to speak where he would not otherwise do so freely.'" J.D.B. v.
North Carolina, 564 U.S. 261, 269, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011). The risk
of isolation "is all the more troubling . . . when the subject of custodial interrogation is a
juvenile." 564 U.S. at 269. Of course, we recognize that the law does not require
juveniles older than 14 the opportunity to have a parent present during a criminal
interrogation. In re B.M.B., 264 Kan. 417, 432, 955 P.2d 1302 (1998). Nevertheless, we
do not find that it was error for the district court to take R.W.'s isolation into
consideration under the circumstances presented in this case.

This is particularly significant where a juvenile who lacks experience with the
criminal justice system and has lost his father is concerned that his mother is "probably
wondering" why he has not come home from school. A review of the interrogation video
shows R.W. hesitating, asking for water, and nervously picking at his nails at several
points. Similarly, R.W. is observed on the video taking deep breaths and hanging his head
when left alone at the various times during the interrogation. Ultimately, at the end of the
interrogation, Officers Bishop and Leitner ask R.W. whether he had any suicidal
ideations and noted his prior mental health status before finally taking him home.

We agree with the district court that R.W.'s mental state likely "left him
vulnerable" given the proximity between the death of R.W.'s father and the start of R.W.'s
relationship with his former girlfriend. In addition, as the district court noted, R.W.
expressed concerns about "emotional instability" during the relationship which he
specifically attributed to the loss of his dad. The record also reveals that Officers Bishop
and Leitner expressed empathy for R.W.'s loss and reassured him that they understood
21

the "trauma" of "having [his] family destroyed" was more than anybody should have to
deal with in their "pivotal developmental years." We find that discussions of this nature
about a juvenile's current or prior mental health issues have the potential to suggest
mental vulnerability and, therefore, a higher potential for coercion.

As indicated above, the test for suppression is fact-driven and based on a
consideration of the "totality of the circumstances." State v. Randolph, 297 Kan. 320,
326, 301 P.3d 300 (2013). Furthermore, we are to exercise "'the greatest care'" or
"heightened sensitivity" when assessing whether a juvenile's confession is voluntary.
Mays, 277 Kan. at 373; Gibson, 299 Kan. at 215. We recognize that reasonable people
could weigh the factors differently. However, even if it is assumed that the Miranda
warning was properly given to R.W., we find that the totality of the circumstances
suggest that his confession was not the product of a free and independent will. For these
reasons, we affirm the district court's decision to suppress the statements made by R.W.
during the interrogation.

Affirmed.