In re S.R.

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NOT DESIGNATED FOR PUBLICATION

No. 116,245

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

In the Matter of S.R.

MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS E. FOSTER, judge. Opinion filed April 7, 2017.
Affirmed.

Andrew J. Jennings, assistant district attorney, Steven J. Obermeier, senior deputy district
attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Brant A. McCoy, of Jones & McCoy, P.A., of Overland Park, for appellee.

Before LEBEN, P.J., POWELL and SCHROEDER, JJ.

Per Curiam: After S.R., a juvenile, made inculpatory statements during a police
interrogation without the benefit of a warning pursuant to Miranda v. Arizona, 384 U.S.
436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), or the opportunity to consult with his
mother or an attorney, S.R. was charged with one count of aggravated criminal sodomy.
Prior to trial, S.R. moved to suppress those statements, and the district court granted the
motion, finding the interrogation was custodial and the statements were involuntarily
made. The State filed an interlocutory appeal, challenging both findings. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In late July 2015, a young boy reported to Merriam Police that S.R. had sexually
abused him. The alleged victim was later interviewed by a social worker trained in
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interviewing children. A Merriam police detective met S.R., who was then 13 years old,
at his school to conduct a minimal facts interview. The purpose of the interview was for
the detective to introduce himself to S.R. and learn a little about him. The next day, the
detective met with S.R.'s mother and stepfather at their apartment and arranged for them
to bring S.R. to the Gardner police station, which they chose over the Merriam police
station, for another interview.

The following morning, S.R.'s mother and stepfather transported him to the police
station. Before the interrogation began, the detective told S.R.'s mother and stepfather
that they were welcome to be in the room during the interrogation but expressed that in
his experience children often spoke more candidly when their parents were not present.
The detective could not specifically recall whether he told S.R.'s mother and stepfather
that S.R. had a right to an attorney. S.R. was not given a Miranda warning, and neither
S.R. nor his mother and stepfather signed a Miranda waiver. The detective began the
videotaped interrogation by telling S.R. that the room's door was unlocked, he was not
under arrest, and he was free to leave whenever he wanted. Throughout the interrogation,
the detective was armed, but S.R. was not handcuffed.

The detective and S.R. initially made small talk. Then the detective told S.R. about
the alleged victim's accusations and said that the alleged victim was not lying. The
detective continually encouraged S.R. to be honest, at one point telling him that people
are usually more lenient or more forgiving towards those who are honest. The detective
told S.R. that everyone makes mistakes and nothing he said would prevent him from
leaving on his own. During the interrogation there were periods when S.R. was silent and
when he was crying. S.R. was also uncomfortable using certain sexual words and
phrases. Eventually, S.R. made some inculpatory statements. The detective then offered
to read the alleged victim's accusations and told S.R. that he just had to say yes. S.R.
confirmed that he and the alleged victim had engaged in sexual activity.

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Once S.R. made the inculpatory statements, the detective switched his focus. The
alleged victim also had suggested that S.R. might have been abused by his mother. So
although he was a suspect, S.R. was also a potential victim. S.R., despite the detective's
persistent questioning, denied being abused by his mother. He then told the detective that
he wanted to go back to school and did not want to talk anymore, terminating the
interrogation. The detective did not arrest S.R. but delivered him back to his mother and
stepfather. The entire interrogation lasted about 1 hour and 40 minutes. Two months later,
the State charged S.R. with one count of aggravated criminal sodomy.

S.R. filed a motion to suppress his statements, arguing that a Miranda warning
was required because the interrogation was custodial, the statements were involuntary,
and the statements were inadmissible hearsay. The State, without addressing the hearsay
issue, responded that the interrogation was noncustodial and the statements were
voluntary. The district court held a hearing on the motion, at which the detective testified
and the video of the interrogation was played. After taking the motion under advisement,
the district court issued a written decision granting S.R.'s motion, concluding that under
the totality of the circumstances, the interrogation was custodial and S.R.'s statements
were involuntary.

The State filed a timely notice of interlocutory appeal.

DID THE DISTRICT COURT ERR IN FINDING THAT
S.R.'S INTERROGATION WAS CUSTODIAL?

The Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights guarantee the right against self-incrimination. State v. Ninci,
262 Kan. 21, 34, 936 P.2d 1364 (1997). To protect that right, states must employ
procedural safeguards when a person is in police custody and subject to interrogation, and
police must advise a suspect of the right to counsel and the right to remain silent.
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Miranda, 384 U.S. at 479. If the suspect is younger than 14 years old, the suspect and the
suspect's parent must both be advised of their rights, and the suspect must be allowed to
consult with his or her parent or attorney. In re B.M.B., 264 Kan. 417, 432, 955 P.2d 1302
(1998); see K.S.A. 2016 Supp. 38-2333(a).

Custodial interrogation is the questioning of a suspect by police while the suspect
is in custody or while his or her freedom is deprived in any significant way. State v.
Warrior, 294 Kan. 484, Syl. ¶ 1, 277 P.3d 1111 (2012). The prosecution must prove by a
preponderance of the evidence that the suspect was not in custody when interrogated. See
State v. Lewis, 299 Kan. 828, 836, 326 P.3d 387 (2014). We use a two-part inquiry to
determine whether an interrogation was custodial. State v. Morton, 286 Kan. 632, 640,
186 P.3d 785 (2008). First, we consider the circumstances surrounding the interrogation.
286 Kan. at 640. Second, we determine, considering the totality of those circumstances,
whether a reasonable person would have felt free to end the interrogation and leave. 286
Kan. at 640, 642-43. The district court's factual findings must be supported by substantial
competent evidence, i.e., "'legal and relevant evidence a reasonable person could accept
to support a conclusion.'" State v. Talkington, 301 Kan. 453, 461, 345 P.3d 258 (2015).
Whether the interrogation was custodial is reviewed de novo, and we do not reweigh
evidence, assess witness credibility, or resolve conflicting evidence. Lewis, 299 Kan. at
835.

We weigh several factors when deciding whether an interrogation was custodial:

"(1) the time and place of the interrogation; (2) the duration of the interrogation; (3) the
number of law enforcement officers present; (4) the conduct of the officers and the
person subject to the interrogation; (5) the presence or absence of actual physical restraint
or its functional equivalent, such as drawn firearms or a stationed guard; (6) whether the
person is being questioned as a suspect or a witness; (7) whether the person being
questioned was escorted by the officers to the interrogation location or arrived under his
or her own power; and (8) the result of the interrogation, for instance, whether the person
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was allowed to leave, was detained further, or was arrested after the interrogation."
Warrior, 294 Kan. at 496.

These factors should not be mechanically applied, nor should equal weight be given to
each factor. Morton, 286 Kan. at 640. "[E]ach case needs to be analyzed on its own facts;
some factors will [be] present in one case and not in another, and the importance of each
factor may vary from case to case." 286 Kan. at 640.

In instances when a child's age was known to the officer at the time of questioning,
or objectively apparent to a reasonable officer, the age of the suspect is also a factor
because "a reasonable child subjected to police questioning will sometimes feel pressured
to submit when a reasonable adult would feel free to go." J.D.B. v. North Carolina, 564
U.S. 261, 272, 277, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011).

Determining whether S.R.'s interrogation was custodial is a close call, and the
facts surrounding the interrogation highlight the differences between how an adult may
have viewed the situation versus a child. S.R.'s interrogation occurred around 8 a.m. at
the Gardner police station. The district court did not find the time of the interrogation to
be coercive. However, the interrogation did take place at a police station rather than at a
neutral location, which generally points to the interrogation being custodial. See Warrior,
294 Kan. 484, Syl. ¶ 4; but see State v. Trussell, 289 Kan. 499, 507-08, 213 P.3d 1052
(2009) (citing several cases where interrogations took place at police stations but were
not custodial). The interrogation lasted about 1 hour and 40 minutes, which also adds to
the custodial nature of the interrogation, although there have been instances where longer
interrogations have been held to be noncustodial. See State v. Jacques, 270 Kan. 173,
186-87, 14 P.3d 409 (2000). The detective was the only person who questioned S.R.

Before the interrogation began, the detective spoke with S.R.'s mother and
stepfather. The record shows the detective told them that in his experience children speak
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more candidly without a parent present but informed them that they were welcome to be
in the room during the interrogation. The district court characterized these statements as
the detective urging S.R.'s mother and stepfather to allow him to speak with S.R. alone.
At the beginning of the interview, the detective also told S.R. that he was not under
arrest, he was free to leave whenever he wanted, and nothing he said would prevent him
from leaving on his own. S.R. was never restrained during the interrogation; the detective
informed S.R. where the building's exit was located and that the interrogation room's door
was unlocked. While the detective was armed during the interrogation, he never drew the
weapon.

During the interrogation, however, the detective used an interrogation technique
that involves isolating a suspect, telling the suspect he or she is guilty, and confronting
the suspect with inculpatory evidence, which may just be a statement from another
person. Moreover, the detective spent most of his time interrogating S.R. as a suspect; it
was only when he was finished with the bulk of this questioning did the detective inquire
whether S.R.'s mother had abused him. After denying that his mother had abused him,
S.R. told the detective that he wanted to go back to school.

In the district court's view, S.R. did not terminate the interrogation but only
proposed a way to leave, and the detective consented to ending the interrogation. The
video shows that toward the end of the interrogation, S.R. told the detective he just
wanted to go back to school. The detective asked when, and S.R. said, "Right now." The
detective responded, "You don't want to talk to me anymore?" S.R. said, "No." The
detective also said he did not want S.R. to regret not talking to him and that S.R. could
contact him anytime. About a minute after S.R. said he did not want to talk further, both
he and the detective left the room. S.R. was not arrested after the interrogation ended but
was returned to his mother.

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The district court concluded that the interrogation was custodial. The court
specifically found that the detective controlled S.R., the contact and length of the
interrogation, and whether it would end. The district court emphasized the young age of
S.R., noting that the detective was aware of S.R.'s age due to having previous contact
with him. The court also found that S.R. did not arrive at the police station voluntarily
because he was transported there while in his mother's custody and that neither his
mother nor stepfather were informed as to the true nature of the interview. The court
criticized the detective's failure to recall whether he had informed S.R.'s mother and
stepfather of S.R.'s right to an attorney, finding the detective should have recalled this as
it was a key detail and should have been noted in the detective's records.

As we have stated, the question of whether S.R.'s interrogation was custodial is a
close call, but ultimately, based upon a review of the totality of the circumstances, we
agree with the district court's conclusion that the detective's interrogation of S.R. was
custodial because the State failed to meet its burden. While an adult may have felt free to
leave in this instance, the entire record suggests that S.R.—an immature child of 13 who
was unfamiliar with the criminal justice system—did not feel free to leave. See Haley v.
Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 92 L. Ed. 224 (1948) (in context of police
interrogation, events that "would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens"). In particular, we agree with the district court's
assessment that S.R.'s mother and stepfather bringing S.R. to the Gardner police station
does not suggest voluntariness, especially given the fact that S.R.'s mother and stepfather
were in the dark about why they were really there. It is difficult for us to envision S.R.
refusing to speak with the detective once he was brought there by his parents. See B.M.B.,
264 Kan. at 432 ("We cannot ignore the immaturity and inexperience of a child under 14
years of age and the obvious disadvantage such a child has in confronting a custodial
police interrogation."). The accusatory nature of the interview, coupled with it being held
in a police station, only added to its coerciveness. The detective's interview of S.R. was a
custodial interrogation, and we affirm the district court's finding on this point.
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DID THE DISTRICT COURT ERR IN FINDING THAT
S.R.'S STATEMENTS WERE INVOLUNTARY?

"[T]hose interrogations that occur while a suspect is in police custody . . . 'heighte[n] the
risk' that statements obtained are not the product of the suspect's free choice. [Citation
omitted.]

"By its very nature, custodial police interrogation entails 'inherently compelling
pressures.' [Citation omitted.] Even 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.' [Citation omitted.] . . . That risk
is all the more troubling . . . when the subject of custodial interrogation is a juvenile. . . .
. . . .
"[Accordingly,] this Court in Miranda adopted a set of prophylactic measures
designed to safeguard the constitutional guarantee against self-incrimination." J.D.B., 564
U.S. at 268-69.

Our Supreme Court has gone further and held

"that a juvenile under 14 years of age must be given an opportunity to consult with his or
her parent, guardian, or attorney as to whether he or she will waive his or her rights to an
attorney and against self-incrimination. Both the parent and juvenile shall be advised of
the juvenile's right to an attorney and to remain silent. Absent such warning and
consultation, a statement or confession cannot be used against the juvenile at a
subsequent hearing or trial." In re B.M.B., 264 Kan. at 432-33.

See also K.S.A. 2016 Supp. 38-2333(a) (no juvenile confession admissible unless prior
consultation between juvenile's parent or attorney concerning right to attorney and
against self-incrimination).

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Here, it is undisputed that S.R. was not given any Miranda warnings, nor was he
or his mother given the advisory warnings mandated by our Supreme Court in B.M.B.
Given this, we are compelled to find that S.R.'s statements to the detective are
inadmissible and, therefore, the district court did not err in suppressing the evidence.

Affirmed.