 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Opinion Number:

 3 Filing Date: June 13, 2016

 4 NO. S-1-SC-34667

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellant,

 7 v.

 8 MUZIWOKUTHULA MADONDA,

 9       Defendant-Appellee.

10 INTERLOCUTORY APPEAL FROM THE DISTRICT COURT OF QUAY
11 COUNTY
12 Albert J. Mitchell, Jr., District Judge


13 Hector H. Balderas, Attorney General
14 Kenneth H. Stalter, Assistant Attorney General
15 Santa Fe, NM


16 for Appellant


17 Bennett J. Baur, Chief Public Defender
18 Mary Barket, Assistant Appellate Defender
19 Santa Fe, NM

20 for Appellee
 1                                        OPINION

 2 VIGIL, Justice.

 3   {1}   Defendant Muziwokuthula Madonda (Defendant) was interrogated following

 4 his arrest for the murders of two men in Tucumcari, New Mexico. At the outset of the

 5 interrogation, law enforcement officers advised Defendant of his Miranda rights, and

 6 he unequivocally invoked his right to remain silent and his right to counsel. However,

 7 the officers continued to interrogate Defendant, and Defendant eventually made

 8 incriminating statements. Defendant then moved pretrial to have the statements

 9 suppressed, arguing that they were obtained in violation of the prophylactic rules

10 announced in Miranda v. Arizona, 384 U.S. 436 (1966) and Edwards v. Arizona, 451

11 U.S. 477 (1981). The district court granted Defendant’s motion to suppress the

12 statements, and the State, in turn, filed this interlocutory appeal. Because we hold that

13 the officers failed to scrupulously honor Defendant’s invocation of his Miranda

14 rights, we affirm.

15 I.      BACKGROUND

16   {2}   On March 24, 2011, the New Mexico State Police were called to the Tucumcari

17 Inn after a relative found Bobby Gonzales and Gabriel Baca dead in the bathroom of

18 room number 126. The investigation, headed by New Mexico State Police Agent Josh

19 Armijo, led law enforcement to suspect Defendant had committed the murders.
 1 Relying in part on information provided by Defendant’s former employer, Texas

 2 Rangers assisted the New Mexico State Police in locating and arresting Defendant

 3 near Houston, Texas, on March 27, 2011. After his arrest, Defendant’s van was

 4 impounded and he was transported to the Montgomery County Sheriff’s Office in

 5 Conroe, Texas.

 6   {3}   Defendant was questioned by law enforcement on three separate occasions

 7 following his arrest. The first interrogation attempt occurred shortly after the arrest,

 8 at approximately 1:00 a.m., and was conducted by Texas rangers Steven Rayburn and

 9 Jason Taylor. During this interview, Defendant told the rangers, “I will not talk,”

10 invoking his right to remain silent. At that point, the Rangers did not attempt to

11 further interrogate Defendant concerning the murders but did continue conversing

12 with Defendant about what would happen to his van and other belongings. Ranger

13 Taylor asked Defendant for his consent to search Defendant’s hotel room, which

14 Defendant gave. Ranger Taylor then explained that the officers would take an

15 inventory of the contents of Defendant’s van and asked if Defendant would give the

16 officers permission to conduct a search of the vehicle. Defendant asked why the

17 officers needed his permission if they were going to search the van anyway, and

18 Ranger Taylor explained that officers conducting a search might “look a little deeper”


                                              2
 1 because they would be looking for evidence of criminal activity, not just creating an

 2 inventory of Defendant’s belongings. Defendant refused to consent to the search of

 3 his vehicle. He did, however, ask the rangers if he could have his Bible, which was

 4 in the van. Ranger Rayburn explained that he would have access to a Bible at the jail,

 5 but Defendant expressed that he preferred his own Bible, which was easier to read

 6 because it had all his notes and markings in it. Ranger Rayburn explained that he was

 7 not sure if Defendant would be allowed to have his own Bible inside the jail and that

 8 someone else would make that decision after the inventory of the vehicle. The

 9 conversation ended shortly thereafter and Defendant was taken to jail.

10   {4}   Agent Armijo, Sergeant Matthew Broom, and Agent Kevin Massis of the New

11 Mexico State Police arrived at the Montgomery County Sheriff’s Office the following

12 day. While the New Mexico officers were en route to Texas, Ranger Taylor secured

13 a search warrant for Defendant’s van. After the three New Mexico officers arrived in

14 Texas, Rangers Taylor and Rayburn briefed them regarding the previous interview

15 attempt. Ranger Rayburn specifically advised the New Mexico officers about

16 Defendant’s request for his Bible because of the “possible significance” of the notes

17 Defendant had written inside it. Agent Armijo and Sergeant Broom spent

18 approximately thirty minutes discussing their plan for interviewing Defendant. They


                                             3
 1 determined that they needed Defendant’s Bible for the interview, so they instructed

 2 Agent Massis, who was conducting the search of Defendant’s van, to locate and

 3 provide it to them prior to the interrogation. The Bible was not included on the search

 4 warrant return receipt, nor was it tagged into evidence. It was, however, numbered

 5 and photographed so the officers could keep track of it, the photograph showing

 6 Defendant’s name written on the front page.

 7   {5}   After receiving the Bible, Agent Armijo and Sergeant Broom met with

 8 Defendant on March 28, 2011. This second attempt to interview Defendant gave rise

 9 to the issue we address in this opinion.

10   {6}   The interrogation on March 28, 2011, took place in the same interview room

11 as the meeting between Defendant and the rangers the day before. Defendant, Agent

12 Armijo, and Sergeant Broom entered the room together.The officers each carried a

13 notebook and Agent Armijo also had a manila envelope, which he placed on the table

14 as he entered the room. The three men sat at a table in the corner of the room with

15 Defendant seated between the two officers. Less than a minute after entering the

16 room, Agent Armijo advised Defendant of his Miranda rights, which Defendant

17 indicated he understood. Then, the following exchange occurred:

18         Agent Armijo:      Okay. Uh, with these rights in mind, do you uh, do
19                            you have a problem sittin’ here and talking with us?

                                              4
 1         Defendant:         Oh, I would like a lawyer please.
 2
 3         Agent Armijo:      Okay, that’s more than fair.

 4         Defendant:         Don’t know if you guys can help with that. I’ve been
 5                            here two days and no one has told me what’s going,
 6                            what’s going to happen or uh, I don’t know and
 7                            what’s the wait for, what exactly . . .

 8         Agent Armijo:      Okay, okay.
 9
10         Defendant:         Yeah.

11         Agent Armijo:      Okay. Umm, so what, what, what’re you saying?
12                            What are you asking me?

13         Defendant:         I would like a lawyer. Talk to, to a lawyer first.

14         Agent Armijo:      Okay, I understand that. But you said I, if I could
15                            help you with something.
16
17         Defendant:         Uh . . .

18         Agent Armijo:      With explaining to you why you’re here?

19         Defendant:         No. I understand why I’m here. I don’t know if you
20                            guys could help set me up with a lawyer or if it’s,
21                            falls under a certain department or if you guys can
22                            handle that. That’s all I’m trying to ask you.

23   {7}   The conversation continued as Defendant and the officers discussed the process

24 for obtaining a lawyer. The officers explained that the court would likely appoint

25 counsel at Defendant’s arraignment, but the process would probably take a few days.


                                              5
 1 The exchange about obtaining a lawyer took approximately one minute, after which

 2 Agent Armijo confirmed with Defendant, “You don’t have anything to say is what

 3 you’re telling me?” and Defendant responded, “I don’t have anything to say.” The

 4 parties do not dispute that by this point, Defendant had invoked both his right to

 5 counsel by saying, “I would like a lawyer,” and his right to remain silent by saying,

 6 “I don’t have anything to say.”

 7   {8}   Next, Agent Armijo stood up and told Defendant, “Okay, sit tight for me for

 8 just a second.” Sergeant Broom picked up the manila envelope and, at Agent Armijo’s

 9 request, handed the envelope to Agent Armijo. Agent Armijo reached into the

10 envelope, pulled out Defendant’s Bible, and said to Defendant, “I just wanna double

11 check real quick that this is yours?” Defendant confirmed that it was his Bible and

12 that he had asked the rangers for it. Agent Armijo then told Defendant that he could

13 not give the Bible to Defendant because it was being seized as evidence. Sergeant

14 Broom confirmed with Defendant that he had received another Bible in jail, but

15 Defendant again explained that he would prefer to have his own Bible because it had

16 all his notes and markings in it. Sergeant Broom assured Defendant that his Bible was

17 “not going anywhere, okay? It’s staying with us.” Agent Armijo then turned to leave

18 the interrogation room, but Sergeant Broom remained seated at the table with


                                             6
 1 Defendant and Defendant’s Bible.

 2   {9}    As Agent Armijo walked toward the door, Defendant stopped him to ask “one

 3 more question.” Defendant asked about having the money the rangers seized from his

 4 wallet and backpack applied to his commissary account at the jail so that he could buy

 5 warm clothes because it was very cold in his cell. Agent Armijo told him that he

 6 could not make any promises, but that he would “ask and see if they can put a rush

 7 on it.” Agent Armijo then asked Defendant if there was anything else he would like

 8 Agent Armijo to tell the other officers because this would be the last time Defendant

 9 would talk to him. Defendant replied, “Mmm, no. If I could get the money so that I

10 can get some warm clothes. That’s it. That would be it. Thank you.”Agent Armijo

11 again told Defendant, “Sit tight for me,” and left the room.

12   {10}   After Agent Armijo’s exit, Sergeant Broom remained in the interrogation room

13 with Defendant. A few seconds passed, then Defendant asked Sergeant Broom about

14 the drive from New Mexico, and the two talked briefly about travel. Defendant told

15 Sergeant Broom that his favorite part of the country to drive through was “Spring

16 Colorado [sic],” and Sergeant Broom responded that he would “check it out.”

17   {11}   Sergeant Broom then quickly changed the topic of conversation, drawing

18 Defendant’s attention back to his Bible by pulling it out of the envelope and asking


                                              7
 1 Defendant, “You do a lot of reading?” Defendant replied, “Yes, I try,” while Sergeant

 2 Broom set the Bible down on the table and began flipping through the pages.

 3 Sergeant Broom asked Defendant what his favorite verse was. Defendant laughed

 4 then asked Sergeant Broom about his favorite Bible verse, to which Sergeant Broom

 5 responded, “Philippians 4:13.” See Philippians 4:13 (King James) (“I can do all

 6 things through Christ which strengtheneth me.”) Defendant then remarked, “that’s the

 7 verse I need right now,”adding that the officers probably thought the case would be

 8 a “slam dunk, . . . until [they heard] what happened.” Sergeant Broom told Defendant

 9 that he “would love to hear what happened” but that he could not because Defendant

10 had requested a lawyer. Defendant said that he wished he had a lawyer already

11 because he knew from watching crime shows on television that “it [was] dangerous

12 to talk to [law enforcement] without a lawyer.” Sergeant Broom reiterated that he

13 would love to hear Defendant’s story, but he could not unless Defendant said he did

14 not want a lawyer after all, adding that Defendant would “say the same story”

15 anyway, whether or not he had a lawyer present. Defendant indicated that he was

16 conflicted about whether or not to talk to the officers, stating that he “would like

17 somebody to hear [his] side of the story,” but he was also concerned because he had

18 heard of cases where suspects had been wrongfully convicted after speaking to police.


                                             8
 1   {12}   Agent Armijo, who had recently reentered the interrogation room, then asked

 2 Defendant, “At this point, what damage can the truth do?” Sergeant Broom and Agent

 3 Armijo then continued to use references to “the truth” to try to convince Defendant

 4 to waive his right to counsel and give them a statement. Sergeant Broom incorporated

 5 Defendant’s Bible, pointing to it and saying “this right here’s the truth . . . . That’s

 6 what I want, is the truth.” Defendant said that he “miss[ed his] Bible” to which

 7 Sergeant Broom responded, “I know.” Defendant then asked questions about what

 8 would happen if he made a statement and whether it would make the process move

 9 faster. Sergeant Broom told Defendant that giving a statement would help the officers

10 discover the truth, and Agent Armijo explained that if the truth “sen[t him] in a

11 different direction” he would then have to “deal with” the fact that Defendant was

12 “not [his] guy.” Agent Armijo then reiterated that if the truth was that Defendant was

13 not the killer, it did not “make sense that the truth is gonna hurt

14 [Defendant].”Sergeant Broom then asked Defendant, “So you want to talk to me?”

15 Defendant responded, “I’ll talk, I’ll talk, and maybe, . . . you know, just put the truth

16 out there, whatever it does.” Before Defendant began telling his story, Agent Armijo

17 stopped to “make sure” Defendant understood his rights, and Defendant told the

18 officers, “I understand I have a right not to talk, but I’ve decided to talk now.”


                                               9
 1   {13}   Defendant gave the officers a version of events in which he was being framed

 2 for the murders in Tucumcari. The officers did not believe his story and eventually

 3 ended the questioning for the day. At this point, the officers secured a promise from

 4 Defendant that he would come back and tell them the truth in the morning.The third

 5 interview took place the following morning, March 29, 2011. Defendant ultimately

 6 confessed to the murders in Tucumcari, as well as two other murders in Ohio. The

 7 State of New Mexico charged Defendant with the two Tucumcari murders.

 8   {14}   Defendant subsequently filed a motion to suppress his statements made during

 9 the March 28 and 29 interviews. The district court held a suppression hearing and

10 ultimately ruled in favor of Defendant, suppressing all statements from the interviews.

11 Because Defendant faces charges for first-degree murder, the State appealed the

12 district court’s suppression order directly to this Court. See State v King, 2013-

13 NMSC-014, ¶ 2, 300 P.3d 732 (recognizing that “this Court has jurisdiction over

14 interlocutory appeals in cases in which a criminal defendant may be sentenced to life

15 imprisonment”). Following oral argument, we issued an order affirming the district

16 court’s suppression of Defendant’s statements. We now explain the reasoning

17 underlying our order.

18 II.      DISCUSSION


                                             10
 1   {15}   “The standard of review for suppression rulings is whether the law was

 2 correctly applied to the facts, viewing them in a manner most favorable to the

 3 prevailing party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856

 4 (internal quotation marks and citation omitted). “The appellate court must defer to the

 5 district court with respect to findings of historical fact so long as they are supported

 6 by substantial evidence.” Id. “[W]e review de novo the district court’s application of

 7 the law to those facts.” King, 2013-NMSC-014, ¶ 4.

 8   {16}   Here, the district court found that during the second interview “Defendant

 9 advised the officers that he did not want to speak and requested an attorney,” but the

10 “officers continued the interview.” Accordingly, the district court concluded, “The

11 continued discussion with . . . Defendant was a violation of both his State and Federal

12 constitutional rights to an attorney and to remain silent. All information obtained in

13 the interviews shall be suppressed.” On appeal, the State does not dispute the finding

14 that Defendant invoked his rights to counsel and to remain silent. The State contends

15 that the finding that the interview continued after Defendant’s invocation of the right

16 to counsel was not supported by substantial evidence, arguing that “the officers

17 stopped the interview” and “[t]he officers did not ask any questions about the

18 investigation or otherwise engage in any conduct likely to elicit an incriminating


                                              11
 1 response until after [Defendant] brought up the investigation. . . .” We are not

 2 persuaded by the State’s arguments and affirm the district court’s order suppressing

 3 the statements.

 4 A.       The Officers Failed to Terminate the Interrogation After Defendant
 5          Invoked his Right to Remain Silent and Right to Counsel

 6   {17}   In Miranda, 384 U.S. at 444, the United States Supreme Court held that “the

 7 prosecution may not use statements, whether exculpatory or inculpatory, stemming

 8 from custodial interrogation of the defendant unless it demonstrates the use of

 9 procedural safeguards effective to secure the privilege against self-incrimination.”

10 Those safeguards include the requirement that law enforcement warn every defendant

11 in police custody, prior to any questioning, that the defendant “has a right to remain

12 silent, that any statement [the defendant] does make may be used as evidence against

13 [the defendant], and that [the defendant] has a right to the presence of an attorney,

14 either retained or appointed.” Id. In addition, Miranda requires that if at any point a

15 defendant invokes the right to counsel by indicating that “he wishes to consult with

16 an attorney before speaking” or invokes the right to remain silent by indicating that

17 “he does not wish to be interrogated,” all interrogation must cease. Id. at 444-45.

18          At this point [the defendant] has shown that he intends to exercise his
19          Fifth Amendment privilege; any statement taken after the person
20          invokes his privilege cannot be other than the product of compulsion,

                                              12
 1          subtle or otherwise. Without the right to cut-off questioning, the setting
 2          of in-custody interrogation operates on the individual to overcome free
 3          choice in producing a statement after the privilege has been once
 4          invoked.

 5 Id. at 474.

 6   {18}   In Edwards, 451 U.S. 477, the United States Supreme Court “added a second

 7 layer of protection to the Miranda rules” with respect to the right to counsel.

 8 Michigan v. Harvey, 494 U.S. 344, 350 (1990). The Edwards Court held that when

 9 the subject of a custodial interrogation has invoked the right to counsel, “a valid

10 waiver of that right cannot be established by showing only that he responded to

11 further police-initiated custodial interrogation even if he has been advised of his

12 rights.” 451 U.S. at 484.

13          Edwards set forth a “bright-line rule” that all questioning must cease
14          after an accused requests counsel. In the absence of such a bright-line
15          prohibition, the authorities through “badger[ing]” or “overreaching”—
16          explicit or subtle, deliberate or unintentional—might otherwise wear
17          down the accused and persuade him to incriminate himself
18          notwithstanding his earlier request for counsel’s assistance.

19 Smith v. Illinois, 469 U.S. 91, 98 (1984) (alteration in original) (citations omitted). In

20 other words, the officers must “scrupulously honor” a suspect’s rights, once invoked,

21 by ending the interrogation. King, 2013-NMSC-014, ¶ 8 (citing Michigan v. Mosley,

22 423 U.S. 96, 104 (1975)). “The interrogator is not at liberty to refuse to discontinue


                                               13
 1 the interrogation or to persist in repeated efforts to wear down the suspect so as to

 2 cause the suspect to change his or her mind.” King, 2013-NMSC-014, ¶ 8. Thus, in

 3 order to resolve the instant case, we must determine whether or not the officers

 4 scrupulously honored Defendant’s rights by ending the interrogation.

 5   {19}   “[T]he term ‘interrogation’ under Miranda refers not only to express

 6 questioning, but also to any words or actions on the part of the police (other than

 7 those normally attendant to arrest and custody) that the police should know are

 8 reasonably likely to elicit an incriminating response from the suspect.” Rhode Island

 9 v. Innis, 446 U.S. 291, 301 (1980) (footnotes omitted). This includes “repeated efforts

10 to wear down [a suspect’s] resistance and make [the suspect] change his mind” about

11 invoking the rights described in the Miranda warnings. Mosley, 423 U.S. at 105-06.

12 Further, in determining whether a particular act or question by an officer constitutes

13 interrogation, courts consider evidence of the officer’s intent because “where a police

14 practice is designed to elicit an incriminating response from the accused, it is unlikely

15 that the practice will not also be one which the police should have known was

16 reasonably likely to have that effect,” especially in light of “[a]ny knowledge the

17 police may have had concerning the unusual susceptibility of a defendant to a

18 particular form of persuasion.” Innis, 446 U.S. at 301-02, n.7, 8.


                                              14
 1   {20}   The record in this case demonstrates that the officers did not properly terminate

 2 their interrogation of Defendant once he invoked his rights. After Defendant made

 3 clear that he wanted the assistance of a lawyer and that he “[did not] have anything

 4 to say,” Agent Armijo brought out Defendant’s Bible, which the officers had procured

 5 solely for use as an aid in the interrogation. Agent Armijo testified at the suppression

 6 hearing that he showed the Bible to Defendant only to determine whether it was in

 7 fact Defendant’s; however, the officers knew Defendant had asked for his Bible the

 8 day before, they knew this was the Bible recovered from Defendant’s van, they made

 9 plans to use the Bible during their interrogation, and Defendant’s name was written

10 on the front page. Based on these facts, it is obvious that clarifying the Bible’s

11 ownership was not the actual reason Agent Armijo pulled out the Bible. Rather, it

12 appears that Agent Armijo knew the Bible was Defendant’s and showed it to him to

13 keep him talking in hopes he would make incriminating statements. Instead of

14 immediately terminating the interrogation, as required by Miranda and Edwards,

15 Agent Armijo employed a technique he and Sergeant Broom had specifically

16 “designed to elicit an incriminating response from the accused.” Innis, 446 U.S. at

17 301, n.7. This is contrary to the requirement that officers “scrupulously honor” a

18 suspect’s invocation of rights by ending the interrogation upon a defendant’s


                                               15
 1 invocation of rights. King, 2013-NMSC-014, ¶ 8.

 2   {21}   After the first introduction of the Bible, Agent Armijo left the room, stating that

 3 this would be the last time Defendant would talk to him, which suggested that the

 4 interrogation was over. However, Sergeant Broom remained in the interrogation room

 5 with Defendant and the Bible. Defendant briefly made small talk with Sergeant

 6 Broom about travel. Then, Sergeant Broom immediately brought Defendant’s

 7 attention back to the Bible, asking him about his favorite verse. Under different

 8 circumstances, such a question may be innocuous. But given that the officers knew

 9 that Defendant’s Bible was important to him and that they had planned to use it in the

10 interrogation, we are convinced that Sergeant Broom instead drew Defendant’s

11 attention back to the Bible so that he could keep Defendant talking until he eventually

12 waived his rights and gave an incriminating statement. See Innis, 446 U.S. at 302, n.8

13 (“Any knowledge the police may have had concerning the unusual susceptibility of

14 a defendant to a particular form of persuasion might be an important factor in

15 determining whether the police should have known that their words or actions were

16 reasonably likely to elicit an incriminating response . . . .”).

17   {22}   Following the reintroduction of Defendant’s Bible, Sergeant Broom proceeded

18 to try to convince Defendant that he should waive his rights and tell the officers what


                                                16
 1 happened. Though Sergeant Broom’s statements that he would love to hear

 2 Defendant’s side of the story were not inherently coercive, they were followed by

 3 direct attempts to convince Defendant to waive his right to counsel by minimizing the

 4 importance of the right. Sergeant Broom told Defendant that he would tell “the same

 5 story” to officers without a lawyer as he would tell with a lawyer, essentially

 6 suggesting to Defendant that it would make no difference in his case whether he

 7 waited for the assistance of a lawyer or not, so he might as well just give a statement.

 8 This is an example of precisely the type of “subtle overreach” or “badgering” the

 9 Edwards rule was designed to prevent. See Smith, 469 U.S. at 98 (explaining that “all

10 questioning must cease,” otherwise through “badger[ing] or overreaching—explicit

11 or subtle, deliberate or unintentional,” officers may “wear down the accused and

12 persuade him to incriminate himself” (alteration in original)).

13   {23}   Although Agent Armijo indicated that he would not be talking to Defendant

14 again after Defendant invoked his rights, he reentered the interrogation room once it

15 appeared that Sergeant Broom might get Defendant to waive those rights. Agent

16 Armijo and Sergeant Broom then directed the focus of the conversation to the

17 importance of telling “the truth,” using the Bible as a symbol of truth. The officers’

18 statements indicating that telling the truth could not do any harm or that it would be


                                              17
 1 the most beneficial course of action for Defendant to take directly undermined the

 2 Miranda warnings that any statements Defendant made could be used against him in

 3 subsequent proceedings. See Cuervo v. State, 967 So.2d 155, 164-65 (Fla. 2007)

 4 (stating that officers engaged in conduct tantamount to interrogation by instructing

 5 a suspect to tell “his side of the story” because it undermined the warning that

 6 “anything he said could be used against him in a court of law”).

 7   {24}   Here, the officers did not honor Defendant’s invocation of his rights when they

 8 failed to terminate the interrogation. Right after Defendant indicated that he wanted

 9 an attorney and did not want to make a statement, the officers proceeded with

10 techniques they had specifically planned to employ during the interrogation, and then

11 they undermined the very warnings which had prompted Defendant to invoke his

12 rights in the first place. Thus, the district court did not err in finding that the officers

13 failed to terminate the interrogation.

14 B.       The Officers’ Failure to ‘Scrupulously Honor’ Defendant’s Rights
15          Warrants Suppression of All Subsequent Statements

16   {25}   The “fundamental purpose [of the Edwards rule] is to [p]reserv[e] the integrity

17 of an accused’s choice to communicate with police only through counsel.” Maryland

18 v. Shatzer, 559 U.S. 98, 106 (2010) (second and third alterations in original) (internal

19 quotation marks and citation omitted).

                                                18
 1          [O]nce a suspect indicates that “he is not capable of undergoing
 2          [custodial] questioning without advice of counsel,” “any subsequent
 3          waiver that has come at the authorities’ behest, and not at the suspect’s
 4          own instigation, is itself the product of the inherently compelling
 5          pressures and not the purely voluntary choice of the suspect.”

 6 Shatzer, 559 U.S. at 104-05 (second alteration in original) (quoting Arizona v.

 7 Roberson, 486 U.S. 675, 681 (1988)). Thus, after a suspect invokes the right to

 8 counsel, “not only must the current interrogation cease, but he may not be approached

 9 for further interrogation until counsel has been made available to him,” McNeil v.

10 Wisconsin, 501 U.S. 171, 176-77 (1991) (internal quotation marks and citation

11 omitted), or there has been a break in custody of at least fourteen days. See Shatzer,

12 559 U.S. at 105, 110. Otherwise, the statements are “inadmissible as substantive

13 evidence at trial, even where the suspect executes a waiver and his statements would

14 be considered voluntary under traditional standards.” McNeil, 501 U.S. at 177.

15   {26}   The officers’ failure to terminate the March 28 interrogation following

16 Defendant’s invocation of the right to counsel mandates suppression of the statements

17 Defendant made during that interview as well as his statements on March 29. Because

18 Defendant was neither provided an attorney, nor released from custody for the

19 requisite fourteen days between his request for an attorney and the subsequent

20 interrogation, the March 29 interview was not cured of its presumptive


                                               19
 1 involuntariness. See Shatzer, 559 U.S. at 105, 110. Accordingly, we hold that it was

 2 proper for the district court to suppress all statements Defendant made after his initial

 3 request for counsel.

 4 III.     CONCLUSION

 5   {27}   The district court properly concluded that the officers continued to interrogate

 6 Defendant after he invoked his right to remain silent and right to counsel in violation

 7 of his constitutional rights. We affirm the district court’s order suppressing

 8 Defendant’s oral and video statements.

 9   {28}   IT IS SO ORDERED.



10                                                  ______________________________
11                                                  BARBARA J. VIGIL, Justice

12 WE CONCUR:



13 ____________________________________
14 CHARLES W. DANIELS, Chief Justice



15 __________________________________
16 PETRA JIMENEZ MAES, Justice



                                               20
1 __________________________________
2 EDWARD L. CHÁVEZ, Justice



3 ____________________________________
4 JUDITH K. NAKAMURA, Justice




                                  21
