                Filed 2/21/19 by Clerk of Supreme Court
                         IN THE SUPREME COURT
                      STATE OF NORTH DAKOTA


                                   2019 ND 52


State of North Dakota,                                       Plaintiff and Appellee

      v.

Samuel Elliot Hansford,                                   Defendant and Appellant


                                  No. 20180179


       Appeal from the District Court of Golden Valley County, Southwest Judicial
District, the Honorable James D. Gion, Judge.

      AFFIRMED.

      Opinion of the Court by McEvers, Justice.

       Olivia L. Krebs (argued), Assistant State’s Attorney, and Christina M. Wenko,
State’s Attorney (appeared), Dickinson, ND, for plaintiff and appellee.

       Markus A. Powell, Dickinson, ND, for defendant and appellant.
                                 State v. Hansford
                                   No. 20180179


       McEvers, Justice.
[¶1]   Samuel Hansford appeals from a district court’s order denying his motion to
suppress following the entry of a criminal judgment after a jury found him guilty of
gross sexual imposition. We affirm, concluding Hansford was not in police custody
when he made incriminating statements and his statements were voluntary.


                                             I
[¶2]   In January 2017, Samuel Hansford was arrested and charged with gross sexual
imposition. Prior to his arrest, Hansford was interviewed by a law enforcement agent.
[¶3]   Before trial, Hansford moved to suppress the written and verbal statements
from the interview and requested an evidentiary hearing on the motion. Hansford
argued the statements he made to the agent during the interview were coerced in
violation of his due process rights. He also argued he was coerced to rescind his
request for legal representation in violation of his Miranda rights, and that the
interrogation violated his rights under the Fifth Amendment of the United States
Constitution and N.D. Const. art. I, § 12.
[¶4]   In August 2017, a suppression hearing was held on the motion. Hansford and
the law enforcement agent who conducted the interview both testified, and the State
entered as exhibits: (1) an audio recording including conversation between the agent
and Hansford taken during the drive from Hansford’s workplace to the police
department; (2) the Voluntary Statement Form (“statement form”) Hansford signed
stating he was waiving his right to an attorney, acknowledging he wanted to continue
speaking with the agent; and (3) a video recording with audio of the interview.
[¶5]   At the suppression hearing, the agent testified his involvement in the case
began when he was called to investigate whether 24-year-old Hansford had sexually
assaulted a 16-year-old female who was unconscious at the time. The agent initially

                                             1
made contact with Hansford by going to Hansford’s workplace. The agent testified
he told Hansford he wanted to interview him but due to privacy issues he did not want
to conduct the interview at Hansford’s work place. After the agent suggested the
interview take place at the police department, Hansford asked if the agent could give
him a ride.
[¶6]   The agent testified that before giving Hansford a ride, he explained to
Hansford that he was not required to come to the police department and that he was
not under arrest. Hansford rode unrestrained in an unmarked vehicle to the police
station. During the ride, the agent and Hansford engaged in casual conversation.
[¶7]   The agent testified that upon arriving at the police department, he and Hansford
went into the interview room which was equipped with audio and visual recording
capabilities. The agent testified he read a “soft version” of the Miranda warning.
When Hansford expressed some confusion, the agent testified he provided Hansford
with a card and read him “line for line” each element of the Miranda warning. After
going through the card together, the agent testified Hansford acknowledged he
understood the Miranda warning.
[¶8]   The agent testified he talked to Hansford about the night of the alleged sexual
assault for around 40 minutes, at which point Hansford “apologized and said he felt
he needed to have an attorney with him.” The agent told Hansford he would give him
five or 10 minutes to “think about it” and he left the room. Hansford testified he
stayed in the room because he felt he had no choice to leave without a ride or without
explicitly being told he could leave.
[¶9]   The agent testified when he returned to the room, Hansford wanted to continue
to talk about the investigation and the agent reminded him he needed an answer
whether Hansford wanted an attorney present or to waive that right. According to the
agent, Hansford stated he wanted to speak to the agent without an attorney, and began
to fill out the statement form. Midway through filling out the statement form,
Hansford paused and again requested to speak with an attorney. The agent brought
Hansford a phone book and Hansford began to make calls. The agent testified after

                                          2
Hansford’s final attempt to reach an attorney, Hansford said “I’ll just speak with you.”
The agent again stated if Hansford wished to waive his right he needed to do so on the
statement form or verbally to the cameras in the room. Hansford did both. Hansford
testified he filled out the statement form because he was under the impression he had
to in order to leave. The agent testified that after Hansford signed the statement form
indicating his waiver of the right to an attorney, he confessed to having sexual
intercourse with a 16-year-old female.
[¶10] Following the hearing, the district court denied the motion to suppress, finding
Hansford stated he wanted to talk the matter out, and “clearly rescinded his request
for legal representation,” and that the rescission was not the result of manipulation by
the agent. The court also found Hansford knew he was free to leave at any time.
Hansford moved for reconsideration and the court denied that motion as well. After
a jury verdict found Hansford guilty, the court entered a criminal judgment. Hansford
appeals from the court’s order denying his motion to suppress.


                                           II
[¶11] Hansford claims his incriminating statements should have been suppressed
because they were obtained in violation of rights guaranteed by the Fifth and Sixth
Amendments to the United States Constitution, N.D. Const. art. I, § 12, his right to
due process, and his rights under Miranda.
[¶12] When reviewing a district court’s decision on a motion to suppress:
       This Court defers to the district court’s findings of fact and resolves
       conflicts in testimony in favor of affirmance. This Court will affirm a
       district court decision regarding a motion to suppress if there is
       sufficient competent evidence fairly capable of supporting the district
       court’s findings, and the decision is not contrary to the manifest weight
       of the evidence. Questions of law are fully reviewable on appeal, and
       whether a finding of fact meets a legal standard is a question of law.
State v. Knox, 2016 ND 15, ¶ 6, 873 N.W.2d 664 (quoting State v. Bauer, 2015 ND
132, ¶ 4, 863 N.W.2d 534). “Trial courts are in the business of judging credibility of
witnesses and weighing evidence[;] [t]his court is in the business of assuring that a

                                           3
decision by the trial court complies with relevant legal principles.” State v. Taillon,
470 N.W.2d 226, 230 (N.D. 1991).


                                           III
[¶13] Hansford argues once he requested counsel and the conversation proceeded
instead of ceasing, his Miranda rights were violated. Hansford argues he clearly
invoked his Fifth Amendment rights when he initially requested an attorney. The
State argues Hansford was never in custody for purposes of Miranda, and
alternatively, even if he was, he properly waived his Miranda rights. It is undisputed
Hansford was informed of his Miranda rights both verbally and in writing prior to the
start of the interview.
[¶14] We have previously recognized the relationship between the Fifth Amendment
of the United States Constitution, N.D. Const. art. I, § 12, and Miranda as follows:
                The Fifth Amendment of our United States Constitution, as well
       as Sec. 12, Article I of our North Dakota Constitution, provides that no
       “person . . . shall be compelled in any criminal case to be a witness
       against himself.” In Miranda v. Arizona, [384 U.S. 436 (1966),] the
       Supreme Court held that a person subjected to custodial interrogation
       is entitled to four specific warnings to “secure the privilege against self-
       incrimination.” Specifically, the Supreme Court in Miranda held:
                [1] He must be warned prior to any questioning that he
                has the right to remain silent, [2] that anything he says
                can be used against him in a court of law, [3] that he has
                the right to the presence of an attorney, and [4] that if he
                cannot afford an attorney one will be appointed for him
                prior to any questioning if he so desires.
       Custodial interrogation is questioning initiated by law enforcement
       officers after a person has been taken into custody or otherwise
       deprived of his freedom of action in any significant way.
State v. Webster, 2013 ND 119, ¶ 9, 834 N.W.2d 283 (citations and quotations
omitted). “A person is ‘in custody’ if there is a formal arrest or restraint on his
freedom of movement to the degree associated with a formal arrest.” Goebel, 2007
ND 4 , ¶ 13. “Whether a person is in custody is a mixed question of law and fact and
is fully reviewable on appeal.” State v. Huether, 2010 ND 233, ¶ 14, 790 N.W.2d 901

                                            4
(citation omitted). “When evaluating whether a person is in custody, the only relevant
inquiry is how a reasonable person in the suspect’s position would have understood
the situation.” Id. (citation omitted). Furthermore, “it is well established that if a
person asks for an attorney during custodial interrogation, the interrogation must
cease until an attorney is present.” Goebel, at ¶ 14.
[¶15] The State argues Hansford was not “in custody” because a reasonable person
would have felt free to leave if (1) the door was closed but unlocked, (2) he was
seated closest to the door, and (3) he was told he was free to leave at any time. We
have recognized “[t]hat questioning occurred at the police station or in a ‘coercive
environment’ is not by itself a requirement for Miranda warnings to be given.” State
v. Golden, 2009 ND 108, ¶ 15, 766 N.W.2d 473 (citation omitted). “Any interview
of one suspected of a crime by a police officer will have coercive aspects to it, simply
by virtue of the fact that the police officer is part of a law enforcement system which
may ultimately cause the suspect to be charged with a crime.” Oregon v. Mathiason,
97 S.Ct. 711, 714 (1977).
[¶16] Here, the district court found Hansford went unrestrained to the police station,
was told he was free to leave at any time, sat closest to the door during the interview,
was interviewed in a room with only one law enforcement agent present, did not show
any apprehension about being in the agent’s company, and told the agent he
understood he was free to leave at any time. Given the facts of this case, the court did
not err in concluding a reasonable person in Hansford’s situation would have
understood he was free to leave and therefore his Miranda rights were not violated.


                                          IV
[¶17] Hansford argues his right to due process and his Fifth Amendment right against
self-incrimination were violated because his statements were not voluntarily made and
his Miranda waiver was coerced.
[¶18] When reviewing a district court’s findings on the voluntariness of a confession,
we have said:

                                           5
              Voluntariness of a confession depends upon questions of fact to
       be resolved by the district court. Because the district court is in a
       superior position to judge credibility and weight, we show great
       deference to the district court’s determination of voluntariness. We will
       reverse only if the district court’s decision is contrary to the manifest
       weight of the evidence.
State v. Goebel, 2007 ND 4, ¶ 17, 725 N.W.2d 578 (citations omitted).
       We have recognized voluntariness challenges are based either on due
       process grounds or on self-incrimination grounds. The due process
       analysis for voluntariness considers the totality of the circumstances,
       which is the same standard applicable to determine whether a defendant
       voluntarily, knowingly, and intelligently waived Miranda rights under
       the Fifth Amendment.
State v. Brickle-Hicks, 2018 ND 194, ¶ 11, 916 N.W.2d 781 (citing State v. Webster,
2013 ND 119, ¶¶ 20-21, 834 N.W.2d 283). “When a confession is challenged on due
process grounds, the ultimate inquiry is whether the confession was voluntary.”
Goebel, 2007 ND 4, ¶ 16 (citation omitted); see also State v. Murray, 510 N.W.2d
107, 110 (N.D. 1994) (“When the voluntariness of a confession is attacked on due
process grounds, the outcome is determined by considering the totality of the
circumstances.”). “A confession is not voluntary when obtained under circumstances
that overbear the defendant’s will at the time it is given.” Taillon, 470 N.W.2d at 228.
In Goebel, we said that a confession is voluntary if:
       it is a product of the defendant’s free choice rather than a product of
       coercion. To assess voluntariness, we look at the totality of the
       circumstances. Our inquiry focuses on two elements: (1) the
       characteristics and conditions of the accused at the time of the
       confession, including age, sex, race, education level, physical and
       mental condition, and prior experience with police; and (2) the details
       of the setting in which the confession was obtained, including the
       duration and conditions of detention, police attitude toward the
       defendant, and the diverse pressures that sap the accused’s powers of
       resistance or self-control.
Id. at ¶ 16 (citations omitted). The same standard applies when determining
voluntariness of a waiver of rights under the Fifth Amendment. Webster, 2013 ND
119, ¶ 20 “A confession is the product of coercion if the defendant’s will is


                                           6
overborne at the time the confession is given.” State v. Norrid, 2000 ND 112, ¶ 18,
611 N.W.2d 866 (citing State v. Sabinash, 1998 ND 32, ¶ 11, 574 N.W.2d 827).


                                           A
[¶19] Hansford argues under the first prong of the Goebel inquiry—focusing on
characteristics and conditions of the accused—that his lack of prior experience with
police made him particularly susceptible to coercion. Hansford argues the agent
interviewing him took advantage of his inexperience by saying he would tell the judge
whether Hansford cooperated with questioning and by misleading Hansford about his
ability to have an attorney present.
[¶20] Hansford did not argue his lack of experience with law enforcement to the
district court. Arguments not made before the district court will generally not be
addressed on appeal. State v. Gray, 2017 ND 108, ¶ 13, 893 N.W.2d 484 (quoting
State v. Kieper, 2008 ND 65, ¶ 16, 747 N.W.2d 497). However, it is the State’s
burden to prove the voluntariness of a defendant’s confession and to produce evidence
on relevant factors including prior contacts with police. State v. Pickar, 453 N.W.2d
783, 786 (N.D. 1990). At the suppression hearing, the State argued Hansford was
given a Miranda warning and that he acknowledged he understood. The State argued
to the court, “there’s been no suggestion or any evidence put forth by the defense that
the defendant did not understand or did not have the mental capacity to acknowledge
or understand what, in fact, he was doing—what the consequences of the conversation
would be.” The State submitted an audio file, a video, and the statement form as
exhibits at the suppression hearing. The court, relying on those exhibits along with
the testimony of Hansford and the agent, found Hansford understood his rights,
agreed to talk, and was not coerced.
[¶21] We conclude there is sufficient competent evidence supporting the district
court’s findings as they pertain to the first Goebel factor.




                                           7
                                           B
[¶22] Hansford argues under the second prong of the Goebel inquiry, focusing on
details of the setting of the interview, that it was clear to Hansford from the beginning
that he was not free to leave. After viewing the video at the suppression hearing,
Hansford acknowledged the agent told him the door to the interview room was open
and he was free to leave at any time. Hansford then testified he felt he could not leave
because he did not have a ride and could not call for one, but did not explain why he
felt he was unable to. The district court, on this issue, found:
       Hansford claims [the agent] manipulated Hansford into accepting a ride
       to the Public Safety Center, and so Hansford was unable to leave as he
       had no transportation and the weather was inclement. However,
       Hansford told [the agent] he understood he was free to leave at any
       time. Hansford did not attempt to leave, nor did he request to leave.
       Hansford sat closest to the door during the interview and [the agent]
       was the only law enforcement officer in the room. Hansford related he
       understood [the agent] was doing his job, and did not show any
       apprehension about being in [the agent]’s company.
The court’s findings are supported by the record.
[¶23] Hansford argues his written Miranda waiver and statements were coerced in
violation of his due process rights. It is clear and undisputed Hansford received
complete Miranda warnings, despite his not being in custody. The district court
reviewed the record of Hansford’s interview and the testimony at the suppression
hearing and found Hansford clearly rescinded his request for legal representation and
his decision to do so was not coerced by the agent conducting the interview. The
district court specifically noted:
               There is no question Hansford received his Miranda advisement,
       nor that he requested to be represented by legal counsel after the
       interview began. The issue appears to be whether Hansford rescinded
       his request for legal representation, and if he did so, was he subtly
       coerced into doing so by [the agent].
               Hansford kept a running commentary about attorneys and the
       situation he was in while looking through the phone book for an
       attorney. [The agent] repeatedly stated he was not going to ask
       Hansford questions but would sit and listen if Hansford wanted to talk.
       Hansford commented that attorneys take forever, and he could not

                                           8
       afford one. He paged through the phone book and reluctantly
       attempted to call an attorney. After his third attempt, he proceeded to
       fill out the waiver and sign it. The Court finds Hansford clearly
       rescinded his request for legal representation.
               Did [the agent] manipulate Hansford into recission? The Court
       believes he did not. Hansford continued to talk to [the agent] after
       Hansford requested an attorney, despite [the agent] telling Hansford
       that [the agent] would not ask any questions. While [the agent] did
       reference the need to tell the truth, and the fact Hansford’s sister
       received favorable treatment after talking to [the agent], he made it
       clear to Hansford that he would only listen and not question Hansford.
       Hansford continued to talk to [the agent], causing uncertainty on [the
       agent]’s part as to whether Hansford was invoking his right to counsel
       or was simply talking about the possibility. Hansford was given ample
       opportunity to contact an attorney.
[¶24] Even if a suspect is not in custody and Miranda warnings are given
gratuitously, they are not rendered “wholly irrelevant.” Taillon, 470 N.W.2d at 228;
see also U.S. v. Bautista, 145 F.3d 1140, 1148 (10th Cir. 1998) (“Although giving a
Miranda warning does not, in and of itself, convert an otherwise non-custodial
interview into a custodial interrogation, it is a factor to be considered by the court.”).
Instead, “[t]he giving of Miranda warnings and the accused’s reliance on the rights
described in the warnings are relevant factors in evaluating the voluntariness of any
incriminating statements.” Taillon, 470 N.W.2d at 229 (emphasis added); cf. State v.
Murray, 510 N.W.2d 107, 110 (N.D. 1994) (whether a defendant actually relies upon
or attempts to exercise the rights advised in gratuitous Miranda warnings is
considered). Consideration of gratuitous Miranda warnings thus factors into the
second prong—the details of the setting in which the confession was obtained—of the
two-prong Goebel totality of the circumstances test for voluntariness.
[¶25] Here, the district court considered the impact of the Miranda warnings when
making findings on the voluntariness of Hansford’s statements evidenced by
references to the uncertainty surrounding Hansford’s possible invocation of his right
to counsel. The court noted the ample time afforded Hansford to contact an attorney,
Hansford’s attempts to reach an attorney, followed by his decision to fill out and sign
the statement form. The court noted the agent’s reassurances that he would only listen

                                            9
and not question Hansford, and finally it noted the setting of the interview and that
Hansford did not show any apprehension about being in the agent’s company, that he
understood he was free to leave at any time, and that he never requested or attempted
to leave.
[¶26] Although the district court does not explicitly reference its application of the
“totality of the circumstances” analysis, its decision clearly incorporates that analysis.
See Bormann v. AT&T Comm, Inc., 875 F.2d 399, 403 (2nd Cir. 1989) (“although the
district court did not explicitly use the ‘totality of the circumstances’ standard, its
‘scrutiny of the circumstances’ surrounding the signing of the releases was adequate”)
(emphasis added). It is clear from the court’s order that no single factor was
determinative of the court’s decision; rather, a balancing of several distinct factors
lead to the court’s decision to deny the motion to suppress.
[¶27] We hold the district court’s findings regarding the voluntariness of Hansford’s
statements are not contrary to the manifest weight of the evidence. We conclude there
is sufficient competent evidence supporting the court’s findings and the court’s
decision is not contrary to the manifest weight of the evidence.


                                            V
[¶28] Hansford argues his Sixth Amendment rights were violated, citing to the Sixth
Amendment of the United States Constitution for the proposition that: “[i]n all
criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of
counsel for his defense.”      U.S. Const. amend. VI.         “A criminal defendant’s
fundamental right to counsel is guaranteed by the Sixth Amendment of the United
States Constitution and by N.D. Const. art. I, § 12.” State v. Dvorak, 2000 ND 6, ¶
9, 604 N.W.2d 445. The United States Supreme Court precedent has established that
“once the adversary judicial process has been initiated, the Sixth Amendment
guarantees a defendant the right to have counsel present at all ‘critical’ stages of the
criminal proceedings . . . [i]nterrogation by the State is such a stage.” Montejo v.
Louisiana, 556 U.S. 778, 786 (2009). The right arises at all times following the time

                                           10
of arraignment: “during perhaps the most critical period of the proceedings . . . that
is to say, from the time of their arraignment until the beginning of their trial, when
consultation, thorough-going investigation and preparation (are) vitally important, the
defendants . . . (are) as much entitled to such aid (of counsel) during that period as at
the trial itself.” Massiah v. U.S, 377 U.S. 201, 205 (1964). “Our standard of review
for an alleged constitutional right is de novo.” City of Fargo v. Rockwell, 1999 ND
125, ¶ 7, 597 N.W.2d 406.
[¶29] Other than citing to the Sixth Amendment of the United States Constitution,
Hansford provides no analysis of how his rights under the Sixth Amendment have
been violated. “[P]arties raising a constitutional claim must provide persuasive
authority and a reasoned analysis to support the claim.” State v. Kleppe, 2011 ND
141, ¶ 10, 800 N.W.2d 311 (citation omitted). We only decide issues that have been
thoroughly briefed and argued. Id. Because Hansford has not provided adequate
support for his Sixth Amendment claim, we decline to address it.


                                           VI
[¶30] Hansford was not in police custody when he made incriminating statements
and the statements were voluntary. The district court did not err in denying
Hansford’s motion to suppress. Accordingly, we affirm the criminal judgment.
[¶31] Lisa Fair McEvers
      Jon J. Jensen
      Jerod E. Tufte
      Daniel J. Crothers
      Gerald W. VandeWalle, C.J.




                                           11
