                                                                  I attest to the accuracy and
                                                                   integrity of this document
                                                                     New Mexico Compilation
                                                                   Commission, Santa Fe, NM
                                                                  '00'04- 17:11:12 2018.03.12

         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2018-NMSC-011

Filing Date: January 18, 2018

Docket No. S-1-SC-35104

STATE OF NEW MEXICO,

       Plaintiff-Appellant,

v.

FILEMON V.,

       Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
J.C. Robinson, District Judge

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

for Appellant

Bennett J. Baur, Chief Public Defender
Jeffrey J. Buckels, Assistant Public Defender
Santa Fe, NM

for Appellee

                                       OPINION

VIGIL, Justice.

I.     INTRODUCTION

{1}    In this case we reexamine a juvenile’s right to be free from self-incrimination, as
secured by the Fifth Amendment of the United States Constitution and the Basic Rights
provision under the Delinquency Act of the Children’s Code, NMSA 1978, Section 32A-2-
14 (2009). The State appeals the suppression of two statements made by sixteen-year-old
Filemon V.

                                            1
{2}    Filemon made the first statement to his probation officers. We hold that, absent a
valid waiver, Section 32A-2-14(C) precludes the admission of Filemon’s statement to his
probation officers while in investigatory detention. We affirm the district court’s order
suppressing the use of the statement in a subsequent prosecution.

{3}     The second contested statement was elicited by police officers at the Silver City
Police Department. Filemon was at this point in custody, and entitled to be warned of his
Miranda rights. At issue is whether the midstream Miranda warnings were sufficient to
inform Filemon of his rights. We conclude that the warnings were insufficient under
Missouri v. Seibert, 542 U.S. 600, 617 (2004). Because the statement was elicited in clear
violation of the Fifth Amendment and Section 32A-2-14, we affirm the district court’s
suppression of the statement.

II.    BACKGROUND AND PROCEDURAL HISTORY

{4}     This case comes to this Court on interlocutory appeal from the Sixth Judicial District
Court. Pursuant to Rule 12-201(A)(1)(a) NMRA, the State appeals the district court’s order
to suppress two statements, one elicited at the juvenile probation office and the other at the
Silver City Police Department.

{5}     Filemon was on probation for committing a delinquent act and expected to come to
the probation office to pick up a travel permit. Filemon arrived at the probation office with
his mother and stepfather. When he entered the lobby, Supervisor Rachel Medina greeted
Filemon and asked if he was there to pick up the travel permit. Filemon responded that he
“just shot Chugie and Eric.”1 Supervisor Medina asked what Filemon was talking about, and
Filemon’s mother interjected, stating that he was there “to turn himself in.” At that point,
Filemon’s probation officer, Cody McNiel, entered the lobby. Filemon again said that he was
there to “turn[] himself in,” this time adding, “for murder, I guess.”

{6}     Prior to Filemon’s arrival, McNiel had been informed of a shooting and was helping
to locate a potential suspect—Filemon’s co-defendant in another case. Thus, McNiel knew
what Filemon was talking about. McNiel told Filemon to “go ahead and come in and . . .
we’ll go to my office and . . . we’ll discuss it.”

{7}   McNiel escorted Filemon through a locked door and a hallway, to Supervisor
Medina’s office. McNiel shut the door. Filemon’s parents told McNiel and Supervisor


       1
         We do not assess the admissibility of the statements in the lobby. The district court
found that these statements were spontaneous and unsolicited and Filemon does not contest
that finding on appeal. See State v. Javier M., 2001-NMSC-030, ¶ 40, 131 N.M. 1, 33 P.3d
1 (stating that volunteered statements are “not subject to the protections of Section 32A-2-14
since such statements are generally not in response to any ‘questioning’ or ‘interrogation.’
”).

                                              2
Medina that Filemon wanted to turn himself in to New Mexico State Police Officer Michael
Dunn, because “that’s who he trusts.” McNiel stepped out and asked another probation
officer to call the police, identifying Filemon as “the shooter.”

{8}      Inside Supervisor Medina’s office, McNiel asked if Filemon was there “to confess
[to] the drive-by shooting.” Filemon responded, “[I]t wasn’t a drive-by.” McNiel persisted,
“[O]kay . . . why don’t you go ahead and tell me the story then.” Filemon responded with
the first contested statement. McNiel continued to speak to Filemon until police arrived.

{9}      Supervisor Medina later testified that Filemon arrived at the probation office of his
own volition, and neither she nor McNiel questioned Filemon. According to McNiel,
however, McNiel “wanted to keep him talking until . . . law enforcement got there so that
they could take him into custody.” Filemon’s mother “[did] most of the talking” and
“Filemon said very little.” Neither probation officer advised Filemon of his Miranda rights
or his right to remain silent under Section 32A-2-14. See Javier M., 2001-NMSC-030, ¶ 41
(determining that Section 32A-2-14 requires a child to be warned of the right to remain silent
during an investigatory detention).

{10} Several police officers arrived at the probation office, including Officer Dunn and
Sergeant Joseph Arredondo. Sergeant Arredondo had been present at the hospital with the
victims prior to his dispatch and knew Filemon was a suspect. Supervisor Medina told at
least one police officer what Filemon had said. According to Supervisor Medina, the parking
lot of the juvenile probation office looked “like Christmas” due to the number of police units
and flashing lights.

{11} Sergeant Arredondo informed Filemon that “detectives needed to speak with him”
and transported Filemon and his mother to the Silver City Police Department, where he
turned Filemon over to Captain Javier Hernandez. Captain Hernandez met Filemon and his
mother in the parking lot and asked if they would come inside. Captain Hernandez had been
actively questioning an eyewitness to the shooting, and knew that the likely shooter was
short, named “Fil,” and had a “peanut-shaped” head, which matched Filemon’s appearance.

{12} Seeing that the interview room was occupied with another suspect, Captain
Hernandez took Filemon and his mother to his office. Captain Hernandez summoned the
case agent assigned to the murder investigation, Detective Pat Castillo. Captain Hernandez
later testified that he intended for Detective Castillo “to sit there and listen to what [Filemon]
had to say because the other witness . . . wasn’t cooperating with us.” Captain Hernandez
turned on his belt recorder and asked Filemon “how old he was” and “if he was going to tell
me what happened today.” Filemon responded, “What [do] you want to know?” Captain
Hernandez answered, “Everything.” Filemon proceeded to give a full statement.

{13} At no time did Captain Hernandez advise Filemon of his constitutional rights. When
asked why he did not advise Filemon of his constitutional rights, Captain Hernandez said,
“I didn’t really think about it. I wasn’t sure what his involvement was . . . if he was the

                                                3
shooter or if he wasn’t the shooter. I just wanted to see what information he had.” Once he
obtained Filemon’s statement, Captain Hernandez told Filemon that he would be detained.
The State concedes that the statement elicited by Captain Hernandez is inadmissible.

{14} Captain Hernandez then asked Filemon to make a statement to Detective Castillo.
Detective Castillo took Filemon and his mother to the interview room, where he read
Filemon his Miranda warnings. Before continuing the interview, Detective Castillo told
Filemon that he was “finishing up.” Detective Castillo characterized the Miranda warnings
as a “formality,” and instructed Filemon and his mother to sign the written waiver of rights,
which they did. Detective Castillo explained that their conversation would “go the same
way” as the conversation with Captain Hernandez, but in greater detail. Detective Castillo
did not inform Filemon that the statement he had just given to Captain Hernandez would not
be admissible at trial. Detective Castillo then obtained a second statement, which included
the same content as the statement elicited by Captain Hernandez.

{15} At the conclusion of the suppression hearing, the district court determined that the
statement in Supervisor Medina’s office was inadmissible because Filemon was not advised
of his statutory right against self-incrimination and did not knowingly, voluntarily and
intelligently waive his rights under Section 32A-2-14(D). The district court also suppressed
both statements elicited at the Silver City Police Department, finding that the pre-Miranda,
unwarned statement was inadmissible; Detective Castillo’s midstream Miranda warnings
were constitutionally inadequate under Seibert, 542 U.S. at 604; and neither statement was
made subject to a valid waiver under Section 32A-2-14(D).

{16} The State appeals the district court’s order to suppress two statements: (1) the
statement in Supervisor Medina’s office; and (2) the post-warning statement to Detective
Castillo. On appeal, the State contends that Section 32A-2-14 does not preclude the
admission of the statement and that Section 32A-2-14 applies only when law enforcement
places a child in investigatory detention. The State also contends that the post-Miranda
statement to Detective Castillo is admissible because it was voluntary, uncoerced, and made
subject to a valid waiver. Because the charges expose Filemon to a potential sentence of life
imprisonment, we have jurisdiction to decide the appeal under Rule 12-102(A)(1) NMRA.
State v. Smallwood, 2007-NMSC-005, ¶ 11, 141 N.M. 178, 152 P.3d 821.

III.   STANDARD OF REVIEW

{17} An appeal of a district court’s suppression ruling raises a mixed question of fact and
law. State v. Wyatt B., 2015-NMCA-110, ¶ 16, 359 P.3d 165. We review “whether the law
was correctly applied to the facts,” viewing the facts “in a manner most favorable to the
prevailing party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129 N.M. 119, 2 P.3d 856
(internal quotation marks and citation omitted). We defer to the district court’s findings of
fact so long as they are supported by substantial evidence. Id. “Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Wyatt B., 2015-NMCA-110, ¶ 16 (internal quotation marks and citation omitted). “The

                                             4
district court’s application of the law to the facts is a question of law that we review de
novo.” Id.

IV.     DISCUSSION

{18} In determining the admissibility of the statements, we begin with the fundamental
principles against self-incrimination. The right against self-incrimination is borne of the Fifth
Amendment and applied to the states through the Fourteenth Amendment. See Malloy v.
Hogan, 378 U.S. 1, 8 (1964). The Fifth Amendment may be invoked in response to “official
questions . . . in any . . . proceeding, civil or criminal, formal or informal, where the answers
might incriminate . . . in future criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420,
426 (1984) (internal quotation marks and citation omitted).

{19} In Miranda v. Arizona, the United States Supreme Court adopted a warnings-based
approach for determining the admissibility of statements elicited in police custody. See 384
U.S. 436, 476 (1966). Prior to police questioning, police must advise the person of the right
to remain silent, that any statement made may be used as evidence against him or her, and
of the right to an attorney. Id. at 444. It is only through these warnings, and an awareness
that anything said can and will be used against the person in court, “that there can be any
assurance of real understanding and intelligent exercise of the privilege.” Id. at 469. Of
particular importance is the notion that statements that would otherwise be considered
voluntary must be excluded for failure to warn. Dickerson v. United States, 530 U.S. 428,
443-44 (2000).

{20} In addition to the constitutional protections against self-incrimination, Section 32A-
2-14 provides a statutory right against self-incrimination to children suspected of delinquent
conduct. Javier M., 2001-NMSC-030, ¶ 41. Section 32A-2-14(C) provides, in part:

        No person subject to the provisions of the Delinquency Act who is alleged
        or suspected of being a delinquent child shall be interrogated or questioned
        without first advising the child of the child’s constitutional rights and
        securing a knowing, intelligent and voluntary waiver.

In Javier M., we explained that “Section 32A-2-14 is not a mere codification of Miranda,
but was intended instead to provide children with greater statutory protection than
constitutionally mandated.” Javier M., 2001-NMSC-030, ¶¶ 30, 32. “Instead of using
Miranda triggering terms such as ‘custody’ or ‘custodial interrogation,’ the Legislature used
much broader terms, such as, ‘alleged,’ ‘suspected,’ ‘interrogated,’ and ‘questioned.’ ” Id.
¶ 29 (quoting Section 32A-2-14(C)). It is well settled that unwarned statements that are
admissible under Miranda may be inadmissible under Section 32A-2-14. See, e.g., id. ¶ 48;
State v. Antonio T., 2015-NMSC-019, ¶¶ 15-17, 352 P.3d 1172.

{21} Questioning officials must exercise greater vigilance with child suspects due to their
“[l]ack of experience, perspective, and judgment,” and their diminished “ability to recognize

                                               5
and avoid various choices detrimental to them.” State v. Rivas, 2017-NMSC-022, ¶ 43, 398
P.3d 299 (citing J.D.B. v. North Carolina, 564 U.S. 261, 272 (2011) (internal quotation
marks omitted)). “That a child will experience police questioning in many ways distinct from
an adult is a ‘commonsense reality.’ ” Id. (citation omitted). Even with respect to adults, the
United States Supreme Court has recognized that the pressure of interrogation “may induce
a frighteningly high percentage of people to confess to crimes they never committed.” Id.
(internal quotation marks and citation omitted). These concerns for truth and reliability apply
with greater force when the suspect is a child. See Javier M., 2001-NMSC-030, ¶ 37.
Mindful of the foregoing principles against self-incrimination, and with particular attention
to Filemon’s youth, we analyze the admissibility of the contested statements.

A.     Section 32A-2-14 Prohibits the Admission of an Unwarned Statement to
       Probation Officers in a Subsequent Prosecution

{22} The question of whether a child’s unwarned statement in response to questioning by
his probation officer is admissible under Section 32A-2-14 is a matter of statutory
interpretation to be reviewed de novo. See Antonio T., 2015-NMSC-019, ¶ 12. To determine
if a statement is admissible under Section 32A-2-14, we first establish “the minimum
constitutional guarantees available to the Child.” Javier M., 2001-NMSC-030, ¶ 11. We then
determine “what, if any, additional protections are available to the Child under the statute.”
Id.

{23} With respect to these minimal constitutional guarantees, the Miranda warnings are
typically required in circumstances of custodial interrogation. Id. ¶¶ 14-15. Our cases hold
that “[a]n individual is subject to custodial interrogation when he or she lacks the freedom
to leave to an extent equal to formal arrest.” Id. ¶ 18. The threshold question in determining
whether a person is in custodial interrogation is whether there were “any words or actions
on the part of the police . . . that the police should know are reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

{24} While the United States Supreme Court has yet to consider the Fifth Amendment
rights of juvenile probationers, it considered the rights of adult probationers in Murphy, 465
U.S. at 422. The Murphy Court determined that probation officers are not required to provide
Miranda warnings to adult probationers who are not in custody. Id. at 429-30, 433. Because
probation meetings do not routinely give rise to the coercive pressures of a custodial
interrogation, an adult probationer’s unwarned statements to a probation officer can be
admitted in a subsequent criminal prosecution. See id. at 422, 433, 440. The Fifth
Amendment forbids, however, a state from compelling self-incriminating statements as a
condition of probation and then using the statements to prosecute a new offense. Id. at 435
n.7; cf. United States v. Von Behren, 822 F.3d 1139, 1141 (10th Cir. 2016) (concluding that
the Fifth Amendment was violated by requiring a probationer to submit to a lie detector test
as a condition of supervised release and threatening to revoke it for invoking the privilege
against self-incrimination). Here, because neither party contends that the events at the
juvenile probation office amounted to a custodial interrogation, or that the statement was

                                              6
compelled over Filemon’s objection, we assume, without deciding, that the statement is
admissible under the Fifth Amendment. This does not preempt our analysis of whether the
statement is admissible under Section 32A-2-14, because the statute bestows greater
protection to youth than the Fifth Amendment requires. Javier M., 2001-NMSC-030, ¶¶ 24,
37.

{25} Unlike Miranda, “Section 32A-2-14 does not require that a child be subject to
custodial interrogation in order for the protections of the statute to come into force.” Javier
M., 2001-NMSC-030, ¶ 32. We have interpreted Section 32A-2-14 as requiring a child to
be warned of the statutory right against self incrimination when subject to a limited scope
encounter known as an “investigatory detention.” Javier M., 2001-NMSC-030, ¶ 38.

{26} Investigatory detentions are “substantially less coercive than custodial
interrogations.” Id. ¶ 19. For example, a traffic stop is an investigatory detention because it
is brief, temporary, and “not so inherently coercive” as to compel a typical person to self-
incriminate. Id. We first determined that a child was subject to an investigatory detention in
the context of police questioning. See id. ¶ 40. In Javier M., a police officer removed a child
from a party to question him about underage drinking. Id. ¶¶ 2-4, 20. There was no custodial
interrogation because the encounter was not coercive and the child was not “overpowered
by police presence.” Id. ¶¶ 20-21. Nevertheless, the child was (1) suspected of a delinquent
act; (2) questioned; and (3) not free to leave. Id. ¶ 20. Given these circumstances, we
determined that the child was in investigatory detention and entitled to be advised of his
right to remain silent. Id. ¶ 38.

{27} In addition to being less coercive than custodial interrogations, investigatory
detentions are less adversarial. Id. ¶ 22. Unlike custodial interrogations, investigatory
detentions are not “police dominated” and the child is not “overpowered by police presence.”
Id. ¶ 21 (internal quotation marks and citation omitted). There is no requirement that the
child be “swept from familiar surroundings into police custody, surrounded by antagonistic
forces, and subjected to the techniques of persuasion . . . so that the individual feels under
compulsion to speak.” Antonio T., 2015-NMSC-019, ¶ 14 (omission in original) (alteration,
internal quotation marks, and citation omitted). Rather, a child is subject to an investigatory
detention when merely suspected of having committed an offense and questioned in
circumstances under which the child is not free to leave. See Javier M., 2001-NMSC-030,
¶¶ 34-35, 38.

{28} While the district court did not expressly recognize that Filemon was in an
investigatory detention in Supervisor Medina’s office, it did find that McNiel was “holding”
Filemon until police arrived, that McNiel was actively investigating Filemon, and that the
statement was elicited. There was substantial evidence to support these findings, which lead
us to conclude that Filemon was in investigatory detention. The district court also concluded
that Section 32A-2-14 is not limited to statements elicited by police officers. We agree.

{29}   Filemon was suspected of committing a new offense, other than that for which he

                                              7
was on probation. See Javier M., 2001-NMSC-030, ¶¶ 34-35 (“As a prerequisite to requiring
that a child be advised of his or her rights under Subsection (C), the [c]hild must be either
‘alleged’ or ‘suspected’ of being a delinquent child.”). Whether a child was ‘suspected’ of
delinquent activity for purposes of Section 32A-2-14(C) is evaluated using an objective
standard. Javier M., 2001-NMSC-030, ¶ 35. Upon hearing Filemon’s statement in the lobby,
it was objectively reasonable for McNiel and Supervisor Medina to conclude that Filemon
had committed a new delinquent offense. This is obvious given that McNiel was aware of
a shooting and that a suspect was acquainted with Filemon. Thus, Filemon was suspected
of committing a delinquent act by the time the probation officers escorted him to Supervisor
Medina’s office. See id. ¶¶ 20-21.

{30} Once in Supervisor Medina’s office, Filemon was questioned about a new offense.
See Antonio T., 2015-NMSC-019, ¶ 27. McNiel asked, “[A]re you here to confess about the
drive-by shooting,” a question which was reasonably likely to reveal incriminating
information. See Javier M., 2001-NMSC-030, ¶ 52 (Minzner, J., specially concurring). This
interaction went beyond a routine meeting regarding Filemon’s compliance with his
conditions of probation and became investigatory when McNiel prompted Filemon to reveal
incriminating information about an offense for which he was not already on probation. See,
e.g., State v. Taylor E., 2016-NMCA-100, ¶¶ 23-24, 385 P.3d 639 (holding that a probation
officer was not required to give Miranda warnings before asking routine questions relating
to probationary status). Supervisor Medina shared the information with the police, thereby
serving as a conduit to the criminal investigation.

{31} Filemon was not free to leave Supervisor Medina’s office. Javier M., 2001-NMSC-
030, ¶ 38 (stating that Section 32A-2-14(C) applies “when a child is seized pursuant to an
investigatory detention and not free to leave”). To determine whether a child is free to leave,
we examine “all of the factual circumstances,” including “(1) the conduct of the police, (2)
the person of the individual citizen, and (3) the physical surroundings of the encounter.”
Jason L., 2000-NMSC-018, ¶ 15 (internal quotation marks and citation omitted). Filemon’s
youth is of importance in determining whether he was free to extract himself from the
encounter. See id. ¶ 18; see also Javier M., 2001-NMSC-030, ¶ 37 (citing children’s
“immaturity and susceptibility to intimidation” as a reason why they must be advised of their
rights during an investigatory detention); Rivas, 2017-NMSC-022, ¶¶ 42-43 (describing a
child’s vulnerability in the context of interrogation).

{32} While Filemon entered the probation office of his own volition, the nature of the
encounter changed when he made the initial voluntary statements in the lobby. The probation
officers isolated Filemon by escorting him through a locked door and down a hallway to a
supervisor’s office in the interior of the building. See Javier M., 2001-NMSC-030, ¶ 18.
Though Filemon was not a stranger to the probation office, he knew that police were on their
way. We are unpersuaded that a child in Filemon’s position would feel free to extract
himself from this situation, and for this reason conclude that he was not free to leave.

{33}   Section 32A-2-14 is not limited to police questioning, as the State asserts. The

                                              8
presence of a police officer is relevant, but not dispositive, to determining whether a child
is in investigatory detention. See Antonio T., 2015-NMSC-019, ¶¶ 24-27. In Antonio T., we
held that Section 32A-2-14 applied to questioning by a school principal. Id. ¶ 27. The
presence of a police officer added an element of coercion that is not usually present in a
school disciplinary proceeding; but perhaps more importantly, granted access to evidence
used to prosecute a delinquent offense. Id. The protections of Section 32A-2-14 were
brought to bear because the evidence was used to prosecute the child. The same result
pertains when the statement is elicited by probation officers and used to prosecute a new
offense.

{34} The Court of Appeals held that a child’s unwarned statements to his probation officer
were admissible for the limited purpose of a probation revocation proceeding in Taylor E.,
2016-NMCA-100, ¶ 19. As the State contends here, the Court of Appeals noted that
requiring probation officers to issue Miranda warnings could “transform[] a relationship
intended to be rehabilitative . . . into an adversarial relationship[.]” Id. ¶¶ 47-48, 65. The
admission of the statements did not turn on the nature of the relationship, however. See id.
¶¶ 14-15. Rather, the statements were admissible because they were elicited in a routine
meeting and not used to prosecute a new offense. See id. ¶¶ 23-24. The Court of Appeals
emphasized the distinction between probation revocation hearings, in which the prosecution
has already occurred, and a new prosecution in which the Fifth Amendment is at stake. Id.
¶¶ 14-15. Unlike Taylor E., Filemon’s encounter with the probation officers was far from
routine, and the statement is being introduced to prosecute Filemon for a new offense. This
distinguishes the situation from the introduction of a statement in a probation revocation
hearing. It is the use of the statement to prosecute a new offense that implicates fundamental
concerns against self-incrimination.

{35} We conclude that Filemon was subject to an investigatory detention for purposes of
Section 32A-2-14, and the unwarned statement to his probation officers cannot be used to
prosecute a new offense. The absence of a police officer does not bar this result where the
statements were elicited in an investigatory detention and offered in a new criminal case. For
this reason, we affirm the district court’s suppression of the statement.

B.     The Post-Miranda Statement Is Inadmissible Under Seibert

{36} Filemon was transported from the juvenile probation office to the Silver City Police
Department. At the police department, Captain Hernandez was informed that Filemon was
there to speak to him. Captain Hernandez turned on his recorder and escorted Filemon and
his mother to his office, where he proceeded to interview Filemon in the presence of the
detective assigned to the case, Detective Castillo. Captain Hernandez did not inform Filemon
of his Miranda rights. Once Captain Hernandez elicited a full, detailed statement from
Filemon, he informed Filemon that he was going to be detained. Immediately following this
interview, Captain Hernandez directed Filemon to repeat the statement to Detective Castillo.
Detective Castillo took Filemon and his mother into the interview room, gave Filemon his
Miranda warnings, and obtained a second, detailed statement.

                                              9
{37} The district court suppressed both statements elicited at the police department. The
State appeals the suppression of the post-Miranda statement. We affirm the district court’s
suppression of the statement because the midstream Miranda warning was ineffective in
informing Filemon of his Miranda rights. Seibert, 542 U.S. at 617.

{38} It is well established that before any person is the subject of a custodial police
interrogation, the suspect must be advised of his or her Miranda rights. 384 U.S. at 444.
Miranda is intended to protect a suspect’s constitutional right against self-incrimination and
requires that, for a statement to be admissible at trial, the suspect be advised of the right and
the officer obtain a knowing, intelligent and voluntary waiver of the suspect’s right to
self-incrimination. Id. at 468. A valid waiver is made free from “intimidation, coercion, or
deception” and “with a full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421
(1986).

{39} It is undisputed that Filemon was subject to a custodial interrogation when Captain
Hernandez interviewed him, triggering the requirement of Miranda warnings. See 384 U.S.
at 467. Because Filemon was at this point firmly in police custody and not provided with his
Miranda warnings, the State concedes that the unwarned statement to Captain Hernandez
was properly suppressed. However, the State argues that the district court erred in
suppressing Filemon’s post-Miranda statement to Detective Castillo. The State cites Oregon
v. Elstad, and argues that Filemon’s post-Miranda statement is admissible because his pre-
and post-Miranda statements were voluntary. 470 U.S. 298, 309 (1985) (stating that
Miranda does not preclude the admission of a statement that is unwarned but voluntary and
uncoerced).

{40} We disagree. First, the State places improper emphasis on the voluntariness of the
statements elicited at the police station. See Dickerson, 530 U.S. at 436 (overruling a statute
that eliminated Miranda’s warning requirement and designated “voluntariness as the
touchstone of admissibility”). The touchstone question is not whether a statement was
voluntary, but whether the Miranda warnings were adequate to inform the suspect of his or
her rights. See Seibert, 542 U.S. at 608-09. The Miranda warnings given to Filemon were
not adequate to inform him of his rights. Second, the manner in which the Miranda warnings
were given rendered the statement elicited by Detective Castillo presumptively coerced.
Therefore, the district court’s suppression of the statements was proper.

{41} The United States Supreme Court has decided two cases relevant to the discussion
of whether a warned statement is admissible following an unwarned statement: Elstad and
Seibert.

{42} The question in Elstad was whether a suspect’s post-Miranda statement was
admissible after the suspect had already made an incriminating statement to a police officer.
470 U.S. at 300. In Elstad, two officers went to a suspect’s house with an arrest warrant. Id.
One officer sat down with the suspect in his living room and asked if the suspect knew the

                                               10
victim. Id. at 301. The suspect said he did, and was aware that the victim had been
burglarized. Id. When the officer stated that he felt that the suspect was involved, the suspect
stated: “Yes, I was there.” Id. (internal quotation marks omitted). The suspect had not been
advised of his rights. Id. The officer did not continue to question the suspect, but instead
escorted the suspect to a patrol car, and took him to the sheriff’s headquarters. Id.
Approximately an hour later, the suspect was given his Miranda warnings. Id. The suspect
said he understood his rights, still wished to speak to the officers, and then gave a full
statement. Id. at 301-02. Subsequently, the suspect was charged with burglary and moved
to suppress his second statement, arguing that the first unwarned statement “let the cat out
of the bag” and tainted his second statement. Id. at 302 (internal quotation marks and citation
omitted). The Elstad Court held that while the first statement was inadmissible, the second
statement was admissible, because neither statement was coerced, and the second statement
was obtained after careful administration of Miranda warnings and after a voluntary waiver
of the suspect’s rights. Id. at 310-11, 17-18.

{43} The Court revisited the question of whether a second, warned statement was
admissible after a first, unwarned statement in Seibert. 542 U.S. at 606-07. The plurality in
Seibert limited Elstad to its facts and held that the relevant question was not the
voluntariness of the two statements, but whether the Miranda warnings given after the first
statement were effective in informing the suspect of her constitutional rights. Seibert, 542
U.S. at 615. In Seibert, the suspect was arrested, taken to the police station, and questioned
for an extended period of time prior to being given her Miranda warnings. Id. at 604-05. The
police officer elicited a full confession from the suspect. Id. The suspect was then given a
twenty-minute break, Mirandized, and questioned a second time by the same police officer
in the same location. Id. at 604-05, 616. In the second interview, the officer asked the suspect
to repeat the information she had given in her first statement and reminded the suspect of
what she had said prior to being advised of her rights. Id.

{44} In distinguishing Seibert’s facts from Elstad’s, the Court listed facts relevant to
determining whether midstream Miranda warnings are effective in informing a suspect of
his or her constitutional rights:

       the completeness and detail of the questions and answers in the first round
       of interrogation, the overlapping content of the two statements, the timing
       and setting of the first and second [rounds of interrogation], the continuity of
       police personnel, and the degree to which the interrogator’s questions treated
       the second round as continuous with the first.

Seibert, 542 U.S. at 615. The Seibert Court determined that the first and second interviews
were effectively continuous: both were held in the same location, the break between the first
and second interview was limited, and the police officer referenced statements the suspect
made during the first interview while conducting the second interview. Id. at 604-05, 616-17.
Furthermore, the officer did not remedy the initial failure to warn by informing the suspect
that her first statement could not be used against her at trial. Id. at 616. The Seibert Court

                                              11
held that the suspect’s constitutional rights were violated because the Miranda warnings
given were ineffective in informing the suspect that she had a genuine right to remain silent
and therefore, the post-Miranda statement was inadmissible. Seibert, 542 U.S. at 617.

{45} In distinguishing the Seibert interrogation from the interrogation in Elstad, the
Seibert Court noted that the Elstad questioning was “a new and distinct experience,” such
that “the Miranda warnings could have made sense as presenting a genuine choice whether
to follow up on the earlier admission.” Seibert, 542 U.S. at 616. The scope of the
pre-Miranda questioning in Elstad and Seibert was categorically different. In Elstad, the
police officer asked the suspect one question, and the interrogation immediately ceased when
the suspect gave an incriminating statement. 470 U.S. at 301-02. In Seibert, the suspect was
questioned extensively and gave a full confession before being Mirandized. 542 U.S. at
604-05.

{46} This case bears notable similarities to Seibert. Like Seibert, Filemon was questioned
extensively and gave a full confession before he was given his Miranda warnings. After
Detective Castillo gave Filemon the Miranda warnings, Detective Castillo told Filemon to
“start from the beginning like you did a while ago,” asking him to repeat his prior
confession, and ensuring that the content of the second statement completely overlapped
with the content of the first statement. The lack of break between the first and second
interviews, and the fact that Detective Castillo was present for both, further contributed to
the continuous nature of the two interviews. Additionally, rather than taking any curative
measures to ensure that Filemon understood that the pre-Miranda confession he gave to
Captain Hernandez was inadmissible, Detective Castillo did the opposite and told Filemon
and his mother that the Miranda warnings were merely a “formality.” The Seibert Court
recognized that “when Miranda warnings are inserted in the midst of coordinated and
continuing interrogation, they are likely to mislead and deprive a defendant of knowledge
essential to his ability to understand the nature of his rights and the consequences of
abandoning them.” 542 U.S. at 613-14 (alteration, internal quotation marks, and citation
omitted). This is precisely what happened here. The Miranda warnings given to Filemon by
Detective Castillo were not adequate to inform him of his constitutional rights as required
by Miranda jurisprudence.

{47} Given the manner in which the interview was conducted, it would have been
unreasonable for Filemon to believe that he had a genuine right to remain silent. While
Filemon’s mother was present, there is no evidence that she herself understood the
midstream Miranda warnings. She did not counsel or advise Filemon during either of the
interviews and left it up to him to decide whether he wanted to answer the officers’
questions. Filemon had already made a full confession to Captain Hernandez before he was
advised of his rights. Furthermore, when Detective Castillo began to interview Filemon, he
told Filemon that he was “gonna go the same way” as Captain Hernandez and that he was
just “finishing up” where Captain Hernandez left off, giving the impression that the
interview was just a continuation of the interview conducted by Captain Hernandez.
Detective Castillo did not make it clear that Filemon could stop talking. Because of the

                                             12
coercive tactics employed by Captain Hernandez and Detective Castillo, Filemon was not
provided with a “real choice between talking and not talking.” See id. at 601. The State did
not meet its burden in proving that the midstream Miranda warnings were sufficient to
inform Filemon of his right against self-incrimination.

{48} The Miranda warnings are not a mere formality. Miranda warnings given after a
confession are likely to be “ineffective in preparing the suspect for successive interrogation,
close in time and similar in content.” Id. at 613. Police must take the utmost care to ensure
that the suspect not only understands the meaning of the Miranda warnings, but also
understands the nature of the rights being abandoned and the consequences of the decision
to abandon them. See Moran, 475 U.S. at 421. Miranda warnings must be given in a manner
that is clearly sufficient to grant the suspect an awareness of the right so the suspect can
make a knowing, intelligent and voluntary choice to speak. See Miranda, 384 U.S. at 467.
The tactics employed by Captain Hernandez and Detective Castillo were presumptively
coercive and eviscerated the protections envisioned by Miranda, rendering the
warnings—when they were finally given—ineffective to inform Filemon that he had a right
not to incriminate himself. We uphold the district court’s determination that the statement
elicited by Detective Castillo is inadmissible. Because the statement is inadmissible as a
matter of federal law, it is also inadmissible under Section 32A-2-14. See Javier M., 2001-
NMSC-030, ¶ 11.

{49} We affirm the district court’s suppression of the two contested statements and remand
for further proceedings consistent with this opinion.

{50}   IT IS SO ORDERED.

                                               ____________________________________
                                               BARBARA J. VIGIL, Justice

WE CONCUR:

____________________________________
JUDITH K. NAKAMURA, Chief Justice


____________________________________
PETRA JIMENEZ MAES, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice


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