                 IN THE SUPREME COURT OF IOWA
                              No. 10–0335

                           Filed April 6, 2012


STATE OF IOWA,

      Appellee,

vs.

ANTHONY DEVON POLK,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

Thomas N. Bower, Judge.



      Defendant appeals denial of motion to suppress confession.

COURT       OF   APPEALS   DECISION    VACATED;     DISTRICT   COURT

JUDGMENT REVERSED; CASE REMANDED FOR NEW TRIAL.



      Mark C. Smith, State Appellate Defender, and David Arthur

Adams, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson and

Richard J. Bennett, Assistant Attorneys General, Thomas J. Ferguson,

County Attorney, and Joel A. Dalrymple, Assistant County Attorney, for

appellee.
                                    2

WATERMAN, Justice.

      Defendant, Anthony Devon Polk, confessed in a jailhouse interview

to firing his handgun at the scene of a gang-related shooting that left two

men with gunshot wounds. We must decide whether the interrogating

police officer’s tactics rendered Polk’s confession inadmissible.     Polk

contends the officer baited him into talking after Polk had invoked his

Fifth Amendment right to remain silent and made improper promises of

leniency that suggested by talking to police Polk could get a better deal

and spend less time away from his children.

      The district court denied Polk’s motion to suppress his confession

and convicted him on charges of intimidation with a dangerous weapon

in violation of Iowa Code section 708.6 (2009), going armed with intent in

violation of section 708.8, and carrying a weapon in violation of section

724.4(1).   Polk was sentenced to ten-year, five-year, and two-year

concurrent prison terms for those convictions.       The court of appeals

affirmed Polk’s convictions but found the officer came “dangerously close

to the line” when eliciting Polk’s confession.    We conclude the officer

crossed the line with promises of leniency.      We hold Polk’s confession

was inadmissible for that reason and, therefore, do not decide whether

Polk was in custody for Miranda purposes or whether his right to remain

silent was violated.

      We vacate the court of appeals decision, reverse Polk’s convictions

and sentences, and remand the case for a new trial.

      I. Background Facts and Proceedings.

      Polk, age twenty-two, and his friend, Devin Pendleton, “got into it”

with Treyvon Henley during Waterloo’s Fourth of July fireworks

celebration in 2008. Henley, also known as “Stix,” was associated with

the Chopper City gang based near Sumner and Manson Streets. Henley
                                    3

pulled a revolver on Pendleton in front of a liquor store and fired a shot

at him. Later that night, Polk and Pendleton, both armed, returned to

the area of Sumner and Manson Streets looking for Henley.           About

2 a.m., they spotted Henley drinking outside with two other men,

Dontrell Hoskins and Willie Evans. Pendleton and Polk both fired shots

at Henley.   The bullets missed their target but struck Hoskins in the

back and grazed Evans’ left forearm. Evans later identified Polk from an

array of photographs.

      On July 30, Polk was held in the Black Hawk County jail on an

unrelated arrest warrant. Officer Shawn Monroe questioned Polk there

about the shooting. Inmates are housed in pods on the jail’s second and

third floors. Polk’s questioning took place in a designated interview room

on the first floor. The room is small, approximately four- to six-feet wide

and eight-feet deep.    Monroe audio recorded the interrogation using a

small digital recorder.    Whether Polk was in custody for Miranda

purposes is disputed. See generally Howes v. Fields, ___ U.S. ___, 132

S. Ct. 1181, ___ L. Ed. 2d ___ (2012) (addressing whether prison

interview is custodial for Miranda purposes); State v. Pearson, 804

N.W.2d 260, 268 (Iowa 2011) (“When an inmate is questioned, we look

for ‘some added restriction on the inmate’s freedom of movement

stemming from the interrogation itself.’ ” (quoting State v. Deases, 518

N.W.2d. 784, 789 (Iowa 1994))).

      Monroe began by advising Polk he was “in custody” and read him

his Miranda rights. He informed Polk he wanted “to talk about some of

the stuff that has been going on in Waterloo” and that Polk’s name “has

been brought up in a couple of things.” Monroe asked Polk about his

association with Pendleton and gangs. Monroe told Polk “somebody says

you shot somebody.” Claiming he “did not have a gun to shoot anybody
                                     4

with,” Polk denied the accusation. Monroe followed up by asking Polk

why he was found in a house near two guns, one ten feet from him. Polk

continued to deny he shot anyone, raising his voice, “I ain’t shoot

nobody, I ain’t got nothing to say, can I go back to my [jail] pod?”

Monroe responded, “Well if you don’t want to know what happens from

here on out, yeah you can.” Polk asked Monroe “what happens?”

      Monroe explained that “what happens from here can be influenced

by what we talk about.” Monroe continued, “Let me just lay it out for

you like this okay, it has been my experience working cases like this,

that if somebody cooperates with us, on down the road the county

attorney is more likely to work with them.”       Polk asked, “What’s the

county attorney?” Monroe informed Polk that the county attorney has

discretion as to “how much time somebody does if they are found guilty

or the one that cuts a deal.” Monroe continued:

      [County attorneys] are much more likely to work with an
      individual who is cooperating with police than somebody
      who sits here and says I didn’t do it, I don’t know what is
      going on. What we can talk about now can influence and
      has the potential to influence things that happen on down
      the road.

      At this point, Polk again attempted to end the questioning stating,

“I want to go back to my cell, I didn’t do it, can I go?” Monroe answered,

“You are free to go, the door’s right there. If that’s what you want to do.”

Polk stood up, left the interview room, and walked down the hall toward

the elevator to the jail pods.   Monroe stepped to the doorway of the

interview room and said, “Hey Anthony, I do want to tell you I got

paperwork down here charging you with possession of a firearm and

going armed with intent.” Polk asked Monroe, “How did I get charged

with a firearm?” Monroe told Polk, “We can talk about it . . . but you

want to go back to your cell or we can talk? You can make the decision
                                     5

now . . . .” Polk returned to the interview room. Monroe asked Polk to

answer in the affirmative that he returned voluntarily to learn “what is

going on,” which Polk did.

      Monroe then resumed his interrogation of Polk:

            I’m telling you, you need to start thinking about what
      you are going to do for yourself because I know you got a
      couple of kids out there and I’d hate to see the kids miss their
      daddy for a long time because you didn’t want to talk about
      what’s going on, that you wanted to keep this I don’t know
      what’s up.
            ....
             If you want keep your story, I’ll tell you what, later on
      down the line nobody is going to be that willing to work with
      you. But if you are thinking I want to cop a plea, and I want
      to get the best plea possible, one of the things that can help
      you with that, possibly help you with that, is that you are
      cooperating now.
(Emphasis added.)

      Monroe told Polk he had an eyewitness stating Polk was with

Pendleton, the color shirts each were wearing, and from what direction

they approached the house. Monroe continued:

      Obviously, I’m only getting one side of the story and there is
      probably more to it. But the only person that is going to be
      able to tell me that is you. If you want to talk about this we
      can talk about this. Like I said, you need to start thinking
      what is best for you. You got to quit thinking about
      [Pendleton] . . . you got to start thinking about what’s best
      for you.

Monroe then mentioned Polk’s children again:

      Man if you don’t want to do this for you, do this for your
      kids. They need their dad around. [35-second pause] Just
      don’t forget you got kids that are depending on you. They
      need their pops around.        And you got to think about
      yourself, what’s good for you right now.

Polk promptly admitted he went to the Sumner and Manson Streets area

on July 5 with Pendleton, carrying a firearm with the intent to shoot

Henley, and that he fired shots at Henley there.
                                     6

       On August 1, the county attorney charged Polk by trial information

with intimidation with a weapon, going armed with intent, and carrying

weapons. Polk filed a motion to suppress his confession. The motion

alleged Monroe procured his confession in violation of his Fifth

Amendment privilege against self-incrimination, his Sixth Amendment

right to counsel, and through improper promises of leniency. The district

court denied Polk’s motion to suppress.      The district court concluded

Monroe’s “[s]tatements indicating that it would be in [Polk’s] best

interests and that of his family [for Polk] to tell the truth . . . [do] not

make [Polk’s] statements inadmissible.”

       Polk also challenged his competency to stand trial. A psychologist,

Dr. Carroll Roland, was retained by the defense.         Dr. Rowland had

measured Polk’s IQ at fifty-nine two years earlier when evaluating Polk as

incompetent to stand trial on a 2006 charge. Dr. Rowland interviewed

Polk twice in October and concluded that Polk “is not currently

competent to stand trial.” Dr. Rowland concluded Polk functions in the

“mild range of mental retardation” and, in his opinion, “did not

understand his Miranda rights when they were read by the arresting

officer.”   Experts for the State measured Polk’s IQ at sixty-four and

seventy-one, respectively, and found him competent to stand trial. The

district court ruled Polk was competent, but stated “it may be necessary

that court proceedings be slowed down somewhat to give defendant an

opportunity to fully comprehend the events as they occur in the

courtroom.”

       The case was tried to the court on minutes of testimony.         The

district court convicted Polk on all three charges, relying on Polk’s

confession he went armed to the Sumner and Manson Streets area. The

district court relied on Polk’s “admissions and the testimony of the other
                                          7

witnesses.”     Polk was sentenced to ten-year, five-year, and two-year

prison terms to be served concurrently.

      Polk appealed, arguing his confession was procured in violation of

his Miranda rights and through promises of leniency.                 The court of

appeals affirmed the district court’s denial of Polk’s suppression motion.

The court of appeals found Polk was not “in custody” for Miranda

purposes. On the promise-of-leniency issue, the court of appeals found

“the officer is dangerously close to the line, but these statements do not

make Polk’s confession involuntary.”

      We granted Polk’s application for further review.

      II. Scope of Review.

      We      review   de novo   Polk’s       constitutional   challenges   to   the

admissibility of his confession. Pearson, 804 N.W.2d at 265. We review

for correction of errors at law the district court’s ruling on promises of

leniency under the common law evidentiary test, when “there is no

dispute as to the words used” or their meaning under the circumstances.

State v. Mullin, 249 Iowa 10, 15, 85 N.W.2d 598, 601 (1957) (court to

determine promise-of-leniency issue as a matter of law).

      III. The Promise-of-Leniency Issue.

      “[I]t is obvious that confession evidence is of great importance in a

criminal trial.” State v. LaDouceur, 366 N.W.2d 174, 177 (Iowa 1985).

“ ‘Voluntary confessions are not merely a proper element in law

enforcement, they are an unmitigated good, essential to society’s

compelling interest in finding, convicting, and punishing those who

violate the law.’ ”    Pearson, 804 N.W.2d at 266 (quoting Maryland v.

Shatzer, 559 U.S. ___, ___, 130 S. Ct. 1213, 1222, 175 L. Ed. 2d 1045,

1055 (2010)) (internal quotation marks omitted).               But, we have long

recognized promises of leniency create the risk of a false confession
                                      8

leading to a wrongful conviction. See Mullin, 249 Iowa at 16, 85 N.W.2d

at 601. Specifically, we have recognized such promises “may very well

destroy the voluntary nature of the confession in the eyes of the law.” Id.

at 16, 85 N.W.2d at 602 (quoting 3 Wigmore on Evidence §§ 823–24 (3d

ed. 1940)).

      Accordingly, we have reiterated that a “ ‘confession can never be

received in evidence where the prisoner has been influenced by any

threat or promise.’ ”   State v. McCoy, 692 N.W.2d 6, 27 (Iowa 2005)

(quoting Mullin, 249 Iowa at 14, 85 N.W.2d at 600)).             The rule

suppressing confessions tainted by promises of leniency deters police

from using a tactic that might induce the innocent to confess falsely. See

2 Wayne R. LaFave, et al., Criminal Procedure § 6.2(b), at 612–13 (3d ed.

2007) (noting the “exclusionary rule for confessions . . . is also intended

to deter improper police conduct”).

      A. The Common Law Test for Reviewing Promise-of-Leniency

Challenges. We review challenges to confessions based on a promise of

leniency under a common law evidentiary test. McCoy, 692 N.W.2d at

27–28. The defendant’s confession is to be suppressed if it follows the

officer’s improper promise of leniency.      Id.   We have adopted this

exclusionary rule out of concern that “ ‘the law cannot measure the force

of the influence used, or decide upon its effect upon the mind.’ ” Id. at

27 (quoting Mullin, 249 Iowa at 14, 85 N.W.2d at 600)). The exclusionary

rule eliminates the need for the court to attempt to read the mind of the

defendant to determine if his confession in fact was induced by or made

in reliance upon the promise of leniency.

      B. Precedent Defining an Improper Promise of Leniency. “An

officer can tell a defendant that it is better to tell the truth without

crossing the line between admissible and inadmissible statements from
                                     9

the defendant.” Id. at 28. Our cases, however, prohibit the investigator

from communicating to defendants that an advantage is to be gained by

making a confession. See, e.g., id. (The line between admissibility and

exclusion seems to be crossed “ ‘if the officer . . . tells the suspect what

advantage is to be gained or is likely from making a confession.’ ”

(citation omitted)).

      In State v. Whitsel, we held the defendant’s confession was

admissible when the officers stopped short of indicating his cooperation

would likely result in less severe punishment.      339 N.W.2d 149, 153

(Iowa 1983). We summarized the facts as follows:

             During the course of questioning, Whitsel volunteered
      information concerning his prior arrest on a sexual abuse
      charge . . . .  In response to this statement offered by
      Whitsel, the detectives told Whitsel that they would
      recommend to the county attorney that Whitsel receive
      psychiatric help and tell the county attorney of his
      cooperation. They emphasized, however, that they could not
      make any promises or give any guarantees and would only
      relate to the county attorney what had been said. Whitsel
      then made his confession following this exchange.

Id. An offer to inform the county attorney of the defendant’s cooperation,

without any further assurances, is not improper. Id.
      By contrast, we have held officers impermissibly promise leniency

when they make “suggestion[s] . . . defendant would receive better

treatment and less severe punishment” if he confesses. State v. Hodges,

326 N.W.2d 345, 346 (Iowa 1982).         In Hodges, the officer told the

defendant “there was a much better chance of him receiving a lesser

offense than first degree murder” if he talked.      Id. at 349 (emphasis

omitted). In State v. Kase, we held an investigator crossed the line by

telling defendant “that if she told him what she knew about Vaughn’s

death and signed a consent to search her apartment no criminal charges

would be filed against her; otherwise, she was told, she would be charged
                                   10

with murder.” 344 N.W.2d 223, 226 (Iowa 1984). In State v. Quintero,

we held the police utilized improper threats by suggesting to defendant

that if he did not tell the truth “he would anger the judge and jury and

suffer greater punishment.”   480 N.W.2d 50, 50–51 (Iowa 1992).       In

McCoy, we found the officer improperly promised leniency by telling the

defendant twenty-five times that “if he didn’t pull the trigger he would

not be in any trouble.” 692 N.W.2d at 28.

      C. Application of Precedent. After three minutes of questioning,

Polk said, “I ain’t got nothing to say. Can I go back to my pod?” Monroe

immediately baited Polk by saying he could go back if Polk “didn’t want

to know what happens from here on out.” Polk took the bait, asking,

“What happens?” and remained in the interview room.        Monroe then

began to insinuate that cooperation could affect punishment.     Monroe

told Polk that “what happens from here can be influenced by what we

talk about.” Monroe elaborated, “Let me just lay it out for you like this

okay, it has been my experience working cases like this, that if somebody

cooperates with us, on down the road the county attorney is more likely

to work with them.” For the next several minutes, Monroe reinforced the

message that Polk would benefit by cooperating. For example, Monroe

stated county attorneys “are much more likely to work with an individual

that is cooperating with police than somebody who sits here and says I

didn’t do it.”

      Polk indicated a second time he wanted to end the questioning.

Monroe told him he was free to go and “the door is right there if that is

what you want to do.” Polk walked out of the room and down the hall

toward the elevator.    Monroe then baited Polk again, stating, “Hey

Anthony, I do want to tell you I got paperwork down here charging you

with possession of a firearm and going armed with intent.” Polk took the
                                    11

bait a second time, asking, “How did I get charged with a firearm?” He

returned to the room for more questioning.        After Monroe and Polk

agreed to resume the interview, Monroe played on the fact Polk had

children:

      I’m telling you, you need to start thinking about what you
      are going to do for yourself because I know you got a couple
      of kids out there and I’d hate to see the kids miss their
      daddy for a long time because you didn’t want to talk about
      what’s going on.

Monroe continued: “Man if you don’t want to do this for you, do this for

your kids. They need their dad around. [35-second pause] Just don’t

forget you got kids that are depending on you.      They need their pops

around.” The court of appeals observed, “It is clear from this statement

that the officer meant to communicate that if Polk confessed, he would

spend less time away from his children.”        We agree.      The strategy

worked—Polk promptly confessed to taking a firearm to the scene with

the intent to shoot Henley and firing shots at Henley there.
      Monroe’s interrogation strategy goes beyond the permissible tactics

approved in Whitsel. Monroe did not simply offer to inform the county

attorney of Polk’s cooperation. Instead, he suggested the county attorney

is more likely to work with him if he cooperates and implicitly threatened

Polk that silence will keep him from his children for “a long time.”

Monroe’s statements are similar to the officer’s statement in Hodges that

“there was a much better chance of . . . receiving a lesser offense” if the

defendant confessed.     See Hodges, 326 N.W.2d at 349 (emphasis

omitted). In each case, the officer suggested the defendant’s confessions

would likely reduce the punishment.

      We conclude Monroe crossed the line by combining statements

that county attorneys “are much more likely to work with an individual
                                      12

that is cooperating” with suggestions Polk would not see his kids “for a

long time” unless he confessed.        Other courts have cried foul when

interrogators imply a confession will reduce the suspect’s time away from

his or her children:

         The relationship between parent and child embodies a
         primordial and fundamental value of our society. When law
         enforcement officers deliberately prey upon the maternal
         instinct and inculcate fear in a mother that she will not see
         her child in order to elicit “cooperation,” they exert . . .
         “improper influence . . . .”

United States v. Tingle, 658 F.2d 1332, 1336 (9th Cir. 1981); see also

Lynumn v. Illinois, 372 U.S. 528, 534, 83 S. Ct. 917, 920, 9 L. Ed. 2d

922, 926 (1963) (finding confession involuntary when police told

defendant, absent a confession, state financial aid for defendant’s child

would be cut off); United States v. Groves, 470 F.3d 311, 322 (7th Cir.

2006) (“Any level of threats or coercion related to [defendant’s] child

would weigh against a finding of voluntariness.”). But see United States

v. Lee, 618 F.3d 667, 677 (7th Cir. 2010) (finding officer statement that

defendant “had a lot at stake” and that he had three young children to

think about did not, by itself, make the confession involuntary). We hold

Polk’s confession was rendered inadmissible by Monroe’s promise of

leniency.

         IV. Conclusion.

         For these reasons, we conclude the district court erred in denying

Polk’s motion to suppress his confession.          Because we find Polk’s

confession followed an impermissible promise of leniency, we need not

address Polk’s Miranda claim. We vacate the court of appeals decision,

reverse Polk’s convictions and sentences, and remand the case for a new

trial.
                                 13

    COURT OF APPEALS DECISION VACATED; DISTRICT COURT

JUDGMENT REVERSED; CASE REMANDED FOR NEW TRIAL.

    All justices concur except Mansfield, J., who takes no part.
