#26544-rev & rem-LSW

2014 S.D. 27

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA
                                      ****

STATE OF SOUTH DAKOTA,                      Plaintiff and Appellant,

      v.

MARICELA NICOLASA DIAZ,                     Defendant and Appellee.

                                 ****
                  APPEAL FROM THE CIRCUIT COURT OF
                      THE FIRST JUDICIAL CIRCUIT
                    HANSON COUNTY, SOUTH DAKOTA
                                 ****

                THE HONORABLE TIMOTHY W. BJORKMAN
                              Judge
                              ****

MARTY J. JACKLEY
Attorney General

SHERRI SUNDEM WALD
Deputy Attorney General

DOUGLAS P. BARNETT
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellant.

CHRIS A. NIPE of
Larson & Nipe
Mitchell, South Dakota
      and
DOUGLAS M. DAILEY of
Morgan, Theeler, Wheeler,
 Cogley & Peterson, LLP
Mitchell, South Dakota                      Attorneys for defendant
                                            and appellee.

                                    ****
                                            ARGUED SEPTEMBER 30, 2013
                                            OPINION FILED 05/07/14
#26544

WILBUR, Justice

[¶1.]         The trial court suppressed Maricela Diaz’s confession. The State filed

an intermediate appeal of the suppression order, arguing that she knowingly and

intelligently waived her Miranda rights prior to her confession. We reverse.

                          Facts and Procedural History

[¶2.]         On November 10, 2009, Jasmine Guevara’s (Jasmine) badly burned

body was found in the trunk of her car in Hanson County, South Dakota. Although

she had multiple stab wounds, an autopsy revealed that she had been burned alive.

[¶3.]         The next day, around 7:00 a.m., Mitchell Police Department

investigators Joel Reinesch (Reinesch) and Toby Russell (Russell) traveled to the

Mitchell residence of Jasmine’s friend, Steffany Molina (Molina). The investigators

interviewed Molina about Jasmine. Following the interview, Reinesch asked if

there was anyone else in the house. Molina answered affirmatively and brought out

two Hispanic individuals who identified themselves as Alex Diaz (Salgado) 1 and

Maricela Diaz (Diaz). The pair spoke to each other intermittently in Spanish while

in Reinesch’s presence.

[¶4.]         After he had left Molina’s residence, Reinesch realized he had forgotten

to obtain date of birth information for Salgado and Diaz. Reinesch then contacted

Molina on her cell phone and asked for the additional information. Molina handed

Salgado the phone. Salgado again identified himself as Alex Diaz and gave a birth

date indicating he was 16 years old. Salgado provided Diaz’s name and her date of




1.      The next day police learned Alex Diaz was actually Alexander Salgado.

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birth. Both birth dates Salgado provided were false. 2 As a result, Reinesch found

no record of individuals matching the information provided.

[¶5.]         Later that same morning, Reinesch returned to the Molina residence to

conduct follow-up investigation, this time accompanied by Special Agent Jay

Goldhorn. When they entered the living room, Salgado and Diaz were sitting on the

couch. During this time, the pair again spoke to each other in Spanish. In neither

instance when Reinesch was at the Molina residence were questions asked of Diaz

nor did she make any statements to the officers. Salgado, however, did speak with

Reinesch. Salgado said he and Diaz had come to Mitchell from Mexico and that

they had last seen Jasmine the previous day around 4:00 p.m.

[¶6.]         As the investigation continued, the police learned what Jasmine was

wearing and that she had been seen at Walmart on the night of her murder. The

authorities secured and viewed Walmart’s surveillance video for the time in

question. The video revealed Jasmine accompanied by two individuals whom the

police recognized as Salgado and Diaz. The video appeared to place Salgado and

Diaz with Jasmine around 8:00 p.m. on the night of her murder, contrary to

Salgado’s account to Reinesch. Based on the information the officers had, no one

saw Jasmine after that point.

[¶7.]         On November 12, 2009, the authorities sought to locate and further

question Salgado and Diaz. At 12:30 p.m. that same day, Reinesch and Investigator

Dean Knippling located Diaz alone at the Molina residence. Reinesch re-introduced



2.      Police would later learn that Salgado was 20 years old and Diaz was 15 years
        old.

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#26544

himself to Diaz, explained that he would like to speak with her further regarding an

investigation, and asked if she would be willing to come to the police department.

She agreed and the officers transported her to the Mitchell Police Department for

further questioning. Diaz arrived at the jail at approximately 1:00 p.m. Once there,

she was placed in Interview Room #1, either an 8x10 or 10x12 foot room equipped

with a small table and chairs.

[¶8.]        Russell and Officer Hector Soto (Soto) of the Sioux Falls Police

Department entered Room #1 just after 1:18 p.m. Soto is fluent in Spanish, his first

language, and his assistance was sought with the Spanish translation of the

interviewees. After introducing themselves, Russell informed Diaz that the officers

were involved in an investigation looking for Jasmine. Russell then requested some

preliminary information.

[¶9.]        In response, Diaz provided several pieces of false information: she

spelled her first name incorrectly, provided no middle name although she had one,

supplied a false birth date, and gave a false name for her mother. She told officers

that she did not know the name of the town in which her parents lived or their

places of employment, and provided a false number for them. She also failed to

correct Russell’s assumption that her parents lived together. Diaz gave the officers

a false name for Salgado, told them he was her brother, and said that Molina’s

mother had brought them to South Dakota for vacation. With this information,

almost all of which soon proved false, Russell and Soto left the room at 1:24 p.m.

Russell then unsuccessfully attempted to contact Diaz’s parents.




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#26544

[¶10.]         Shortly thereafter, the officers returned to the interview room. This

time Diaz provided a second parental contact number. Responding to a follow-up

question as to where her parents lived, Diaz told the officers they lived in Fort

Wayne, Indiana, but reiterated that she did not know the name of the place where

they worked. In response to Soto’s question of whom Diaz would call in an

emergency, she replied, “Oh, to reach my mom? . . . Mm, just those numbers

because I don’t got no more.” 3 The officers again left the room to attempt to contact

Diaz’s parents.

[¶11.]         At approximately 1:40 p.m., Russell and Soto returned to the interview

room. Russell then continued his effort to obtain identifying information. In this

brief session, Diaz told them she had lived with her family in Indiana for four or five

years, and prior to coming to Indiana had lived in Mexico. She told the

investigators she had attended South Side High School in Fort Wayne until the

time in October when they came to South Dakota. She told them her brother—

actually Salgado—was either 18 or 19, but was not sure and that he was no longer

in school. Diaz also said she “kind of” had a boyfriend who went to school in

Mitchell, but did not know his last name.

[¶12.]         After exiting the interview room at 1:45 p.m., Russell contacted the

Fort Wayne Police Department seeking assistance in locating Diaz’s parents. In

response, a Fort Wayne detective spoke with Reinesch and provided correct names


3.       Diaz was also not forthright in discussing why she and Salgado were not in
         school. She stated the school told them to come back on December 5. She
         then modified her response to indicate her mother told them to come back at
         that time. Police would later learn that Diaz dropped out of ninth grade prior
         to coming to South Dakota.

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#26544

and dates of birth for Diaz and Salgado and emailed photos of each. Fort Wayne

authorities also identified Diaz’s mother as Irma Gutierrez-Placencia (Mother). As

a result of obtaining Diaz’s correct birth date, the officers learned Diaz was listed as

a runaway child or missing person.

[¶13.]         Russell finally reached Mother by telephone at approximately 3:30

p.m. at the second number Diaz had provided him. Having realized Mother spoke

Spanish, Russell handed the phone to Soto. 4 The entire dialogue between Mother

and Soto was in Spanish. Mother informed Soto that she was Diaz’s mother, Diaz

had a baby girl with Salgado, Diaz was 15 years old, and Diaz had called Mother

that morning and told Mother that Salgado had beaten her and forced her to go to

South Dakota. Soto then informed Mother that Diaz was detained over another

investigation and was in good health. Soto then proceeded with his inquiry: 5

               Soto: We have already fed her, she, she is in good health. And
               the reason why we are calling you is to ask for your permission
               to talk with her about the investigation that we are conducting.
               Mother: What permission, are you doing a separate
               investigation there in South Dakota?
               Soto: Yes. Because she is a minor, we need permission from
               her parents to talk to her about the matter here. Because it is
               possible that she is a witness to what happened.
               ....
               Mother: . . . Well, allow me a second, because I am talking
               with, with another person. Allow me a second.
               Soto: Yes.


4.       At this point during the investigation Soto knew it was a homicide
         investigation, but did not know Diaz was a suspect.

5.       The following excerpt is a translation of the Spanish conversation held
         between Soto and Mother. Soto translated the conversation.

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#26544

         Mother: (Mother talking to another person in the background) .
         . . investigation, they are investigating over there and I think
         another matter, (inaudible) I don’t know, but they want
         permission, for me to talk, for me to give permission for her to
         talk, since she is a minor they need me to say . . . (back speaking
         with Soto) Well, it’s alright, well, you can interrogate her.
         Soto: Yes, we can interrogate her. Look, if you want to talk
         with her, you can talk to her after, or now, or whatever you like,
         if you have any questions for her. Like I said, she is fine, she is
         not hurt in any way. But I would like to get your information.
         We only have the telephone number that we called you on. Your
         name is Irma right? Ma’am?
         Mother: Yes.
         Soto: And are you Maricela’s natural mother?
         Mother: Yes.
         ....
         Mother: I have a question.
         Soto: Yes, of course.
         Mother: Excuse me. You caught her in another investigation.
         You caught her at the house right? Where was she living[?]
         Soto: Let me ask the detective that detained her. (To Russell
         in English) Say, she wants to know where she was picked up.
         (Back speaking with Mother in Spanish) [T]hey picked her up at
         the house of a girl named [Steffany] Molina.
         Mother: Mhmm.
         Soto: Do you know who she is?
         Mother: Uh, no honestly, well not her, I don’t know that girl
         that you said but . . .
         Soto: Do you know anyone here in South Dakota?
         Mother: No, no one.
         Soto: OK then, because she told us that you have friends here
         and that they are here visiting.
         (To Russell in English) Mom doesn’t know anybody in South
         Dakota. She doesn’t know who this person is. So that’s what
         that was about, but we got permission to interrogate from her
         mother.

                                      -6-
#26544

            (Back speaking with Mother in Spanish) Any other questions,
            Ma’am?
            Mother: She is detained right now, well, you are not going to
            let her go right?
            Soto: No, of course not, we can’t let her go, knowing that you
            reported her. We cannot do that.
            Mother: And you can’t send her over here to Fort Wayne,
            Indiana? What’s going on is that I, well I honestly don’t have a
            lot of money. We don’t have a car to go over there.
            Soto: Well, when the time comes for her to return there,
            arrangements will be made. Yes, and the detectives will call you
            as well when that time comes. But we are not going to release
            her. We will not let her go to anyone other than the parents.
            Mother: Was Maricela there alone[?]
            Soto: No, we also have Alejandro here[.]
            Mother: You also have Alexander?
            Soto: Yes. Yes.
            ....
            Soto: . . . But I appreciate your permission to talk with the girl
            and if you would like, you can talk with her later.
            Mother: Yes if you could dial over here, please my daughter.
            Soto: Yes of course. To this telephone right?
            Mother: Yes, please.

During the conversation, Mother never requested to speak with Diaz.

[¶14.]      From 1:45 p.m. to 4:00 p.m. the officers attempted to contact Diaz’s

parents and spoke with Mother. During this time, Diaz remained in the interview

room, received lunch, and used the restroom a couple of times. When an officer

brought Diaz her lunch, Diaz inquired about Jasmine and stated she was confused

that the officers were not asking her about Jasmine. The officer explained that they

needed to contact her parents before they could talk to her about Jasmine. Also

during this time the officers placed Salgado in the interview room next to Diaz. The

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#26544

pair engaged in a discourse in which Diaz encouraged Salgado to lie to police, claim

that his father was Fernando Diaz, and say that the two were in South Dakota on

vacation.

[¶15.]       After Soto had spoken with Mother, he and Reinesch entered the

interview room at 4:00 p.m. At that point, officers had learned the couple’s correct

names and dates of birth and that Salgado was not her brother but her boyfriend,

they were involved romantically, they had a child together back in Indiana, Diaz

was a reported runaway, and she had called her mother that morning to claim that

Salgado had abused her. They learned that almost everything Diaz had told them

earlier was false. They also believed that Diaz and Salgado were with Jasmine on

the night of her death and were the last people known to have seen her alive.

[¶16.]       The questioning began around 4:00 p.m.:

             Reinesch: Okay. Maricela, I’m Joel Reinesch. I’m an
             investigator here with the Police Department. You can call me
             Joel, call me whatever you wanna call me, okay? Uh, this is
             Hector. I believe you spoke with Hector today as well –
             Diaz: Mm-hm.
             Reinesch: -- too so you’ve spoken with both of us. Um,
             Maricela, there’s – there – there’s a couple of things that we’d
             like to talk about, um, you know, definitely first and foremost, I
             mean the – the stuff I’m really concerned about your safety and
             you know we – we spoke with your mom today and stuff like
             that and I’d really like to sit down and talk with ya about that
             stuff. Since I brought ya down here and everything else, there’s
             – there’s a protocol that I’ve gotta go through first, okay? Not a
             big deal at all and we’ll get through this and we’ll getcha takin’
             care of. Maricela, like I said, I’m Joel Reinesch, I’m a Police
             Officer here at the Police Department. You have a continuing
             right to remain silent. Anything you say can be used as
             evidence against you. You have the continuing right to consult
             with and have the presence of an attorney. If you cannot afford
             an attorney, an attorney will be appointed for you. Do you
             understand these rights, Maricela?

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#26544

         Diaz: No.
         Reinesch: What’s that?
         Diaz: Uh, you talk so fast.
         Reinesch: I talk so fast? Okay, I’ll – I’ll read ‘em again and
         then if you have any questions, then we’ll – we’ll go from there,
         okay? Like I said, I’m Officer Reinesch, okay? You have the
         continuing right to remain silent. Anything you say can be used
         as evidence against you. You have the continuing right to
         consult with and have the presence of an attorney. If you cannot
         afford an attorney, an attorney will be appointed for you. Do
         you understand those rights?
         Diaz: I think so.
         Reinesch: Okay and – and – and basically – basically what it
         is, Maricela, is, is you have the right to – to not tell me whatever
         you don’t wanna tell me. If you don’t wanna tell me somethin’,
         you don’t have to, okay? That’s basically you know, what it is[.]
         You know, I’d like to sit down and have a conversation with ya,
         you know, especially about the stuff that’s been goin’ on from,
         you know, from Indiana and stuff like that, you know as far as,
         you know, you callin’ mom today and stuff like that. That’s
         what I’d like to talk to you about, okay? But you have the right
         to not talk to me, okay? That’s basically what I’m reading to ya.
         Do – do you understand that?
         Diaz: So I don’t need – I stay silent also?
         Reinesch: You – you can if you want to. Do you – do you – do
         you wanna have a conversation with me? That’s basically what
         I’m talkin’ about, Maricela.
         Diaz: But about me or about –
         Reinesch: About –
         Diaz: -- Jasmine?
         Reinesch: -- everything, everything. I’d like to talk about you
         and then, you know, whatever it goes from there, that – that’s
         where it goes. But first and foremost, I’d like to sit down and
         talk with ya about the stuff that – that’s been goin’ on and you
         know, and bein’ missin’ and everything else like that, ‘cause I
         mean I – I know that you’ve been in fear, you know as far as
         that goes, you know? I mean that’s obvious from talkin’ to mom
         and everything else. And that’s – you know, that’s what I
         wanna start out talkin’ to ya about. Okay? Do you – do you
         wanna talk to me about that?

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#26544

         Diaz: About my mom?
         Reinesch: About you and being gone from Indiana and stuff
         like that.
         Diaz: So – I don’t know.
         Reinesch: Hector, can you take a minute?
         Soto: Well, It’s Maricela. Maricela Nicolasa Diaz. Right? See
         here – here’s the deal. We’re gonna be honest with you. Okay
         we – we know who you are. We spoke – I spoke with your mom,
         Irma[,] a little while ago and she said it was okay to talk to you.
         She also told me that you called her for help. She told me that
         this morning. And we’re concerned for you, okay?
         Diaz: Mm-hm.
         Soto: We’re concerned that, you know, I mean what you told
         her really made her nervous. Okay? So we wanna talk to you
         about – about all those issues and about all those things. But
         before we do that, we gotta make sure like – like Joel explained
         here that – that you understand your rights and you said that
         you kinda did that – and he read ‘em again to ya. Okay? Is
         there any part of that that you don’t understand, the rights that
         he – that he read to ya?
         Diaz: I don’t understand anything.
         Soto: You don’t understand anything that he said? Why is
         that?
         Diaz: Because I know a – a little – I know how to speak, but
         some things I don’t know how to speak English and something –
         um, understand it really well. But I –
         Soto: Would it help if – if I read you those same rights in
         Spanish?
         Diaz: (Nods head affirmatively)
         Soto: Would that help a lot?
         Diaz: Mm-hm.
         Soto: Okay, ‘cause – is it – is Spanish your first language then?
         You speak Spanish better than English?
         Diaz: Mm-hm.
         [At this point, Soto’s discussion with Diaz turned to Spanish.]



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#26544

         Soto: Okay, I’ll just read ‘em right, right, just the way that
         they’re written here in English, here. I’m just gonna translate,
         okay? You have the right to – to remain silent, you understand?
         Diaz: Mm-hm.
         Soto: Anything you say can be used as evidence against you,
         you understand?
         Diaz: Mm-hm.
         Soto: You have the right to consult with and have present an
         attorney, you understand?
         Diaz: Mm-hm.
         Soto: If you cannot afford an attorney, an attorney will be
         appointed for you. Do you understand your rights?
         Diaz: Mm-hm.
         Soto: Yes or no?
         Diaz: Yes.
         Soto: Yes. And do you want to talk to us about the events that
         we – yes or no?
         Diaz: You speak Spanish?
         Soto: Yes, I speak Spanish. Of course.
         Diaz: Why didn’t you tell me this from the beginning?
         Soto: You were talking just fine with him.
         Diaz: So – um –
         Soto: Do you want to talk to us about the events? Yes or no?
         Because your – I already spoke to your mom and she said that
         we can talk to you about what happened and all the events with
         the family, with Alexander. Do you want to talk with us?
         Diaz: But, about me?
         Soto: About you, about Jasmine, about Alexander, everything.
         Diaz: About Jasmine, all that I know is that the other day –
         Soto: First of all, do you want to talk, yes or no?
         Diaz: Yes.
         Soto: Yes. (In English) Okay she says yes to –
         Reinesch: (In English) Yes? Okay. Um, then explain the adult
         part[.]
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#26544

               Soto: (In Spanish) And also, another thing that I have to tell
               you is . . . um . . . if these events end up in court, it’s possible
               that they could charge you as an adult, as an adult person of –
               Diaz: But, what charges?
               Soto: Any charge that results from here. Do you understand?
               Diaz: Uh-huh.
               Soto: (In English) Okay. Okay, now, do you want to continue
               speaking in – in English for Joel’s benefit? Or do you wanna
               speak in Spanish?
               Diaz: (In Spanish) In Spanish so that I don’t get confused and
               say too much or too little.

The questioning continued until Diaz confessed around 5:30 p.m. 6 Over the next

four hours, Diaz explained the events of Jasmine’s murder. At 10:00 p.m., after

Diaz’s evidence inventory was taken, she was transported to the jail.

[¶17.]         The officers testified that they did not initially offer Diaz an

interpreter because based on her ability to respond it did not then appear that she



6.       The confession, the half-hour preceding it, and the hour following it were
         absent from the video and audio recording. The Mitchell Police Department
         had begun using a new video/audio system in its interrogation rooms and
         officers were unaware the devices were programmed to shut off and download
         after four hours of continuous use. Thus, there was no recording from 5:00
         p.m. to 6:30 p.m. One hour of actual interview was missing as the balance of
         the time was consumed by breaks. No evidence was presented that the
         missing video was intentionally caused by the officers.

         Amici curiae urge this Court to adopt a rule requiring all juvenile
         interrogations to be electronically recorded. Although we recommend
         electronically recording juvenile interrogations because it helps judges
         resolve admissibility issues, protects police from frivolous claims of
         misconduct, and protects juveniles’ rights, In re Jerrell C.J., 699 N.W.2d 110,
         122-23 (Wis. 2005), we reserve the analysis of such a requirement for a case
         where the issue squarely presents itself. Here, the video and audio recording
         captured all but one hour of questioning. Although the confession and the
         half hour preceding it are missing, the crucial Miranda warnings and
         responses to those warnings are captured.

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#26544

needed one. During the entirety of the questioning, the tone of the interview was

conversational. Officers did not raise their voices or swear at or threaten Diaz in

any way. According to Soto, Diaz appeared nervous only when Soto challenged her

about the inconsistencies in her story. Diaz never requested to speak with her

mother or an attorney, nor did she ask officers to stop questioning. Diaz was not

under the influence of drugs or alcohol and appeared to be in normal health.

[¶18.]         Later that evening, following the questioning and confession, the

state’s attorney obtained a temporary custody directive from Judge O’Brien. A

hearing to decide whether to continue custody was held the following day on

November 13, 2009. Diaz was present and her mother appeared telephonically.

[¶19.]         While in juvenile court before Judge O’Brien, Diaz moved to suppress

her confession arguing she did not voluntarily, knowingly, and intelligently waive

her Miranda rights. The motion was denied. The case was then transferred to

adult court in the First Judicial Circuit before Judge Bjorkman. The trial court

then reopened the motion to suppress. The trial court granted the motion to

suppress and in doing so found that Diaz made her statements voluntarily, but did

not knowingly and intelligently waive her rights. The State takes this intermediate

appeal arguing the trial court erred in granting Diaz’s motion to suppress. 7



7.       We only address whether Diaz knowingly and intelligently waived her
         Miranda rights. On appeal, Diaz challenges the trial court’s decision that the
         confession was voluntary. However, Diaz failed to file a notice of review
         challenging the trial court’s finding on voluntariness. “This Court has
         consistently held that failure to comply with the notice of review
         requirements results in a waiver.” State v. Blackburn, 2009 S.D. 37, ¶ 8, 766
         N.W.2d 177, 181 (citations omitted). Therefore, we do not reach the issue of
         voluntariness.

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                                 Standard of Review

[¶20.]         “A ruling on a motion to suppress based on an alleged violation of a

constitutionally protected right is a question of law reviewed de novo.” State v.

Horse, 2002 S.D. 47, ¶ 11, 644 N.W.2d 211, 217-18 (citation omitted). “[W]e

consider the totality of the circumstances surrounding the interrogation as factual

determinations, giving deference to the trial court’s findings of fact.” State v.

Ralios, 2010 S.D. 43, ¶ 24, 783 N.W.2d 647, 655 (citations omitted). “Once the facts

have been determined, however, the application of a legal standard to those facts is

a question of law reviewed de novo.” State v. Hess, 2004 S.D. 60, ¶ 9, 680 N.W.2d

314, 319 (citation omitted). As a result, we review the entire record and make an

independent determination of whether Diaz knowingly and intelligently waived her

Miranda rights. People in the Interest of J.M.J., 2007 S.D. 1, ¶ 5, 726 N.W.2d 621,

624 (citation omitted).

                                        Decision

[¶21.]         When a defendant moves to suppress statements taken during a

custodial interrogation, the prosecution must show by a preponderance of the

evidence that the defendant voluntarily, knowingly, and intelligently waived her

Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct. 1602, 1628,

16 L. Ed. 694 (1966); State v. Tuttle, 2002 S.D. 94, ¶¶ 7-8, 650 N.W.2d 20, 25-26. 8

To be knowing and intelligent, “the waiver must have been made with a full

awareness of both the nature of the right being abandoned and the consequences of


8.       For Miranda to apply, the juvenile must be subject to custodial interrogation.
         Miranda, 384 U.S. at 444, 86 S. Ct. at 1612. The State concedes that Diaz
         was in custody while at the police station.

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#26544

the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135,

1141, 89 L. Ed. 2d 410 (1986). However, “[t]he Constitution does not require that a

criminal suspect know and understand every possible consequence of a waiver of

the Fifth Amendment privilege.” Colorado v. Spring, 479 U.S. 564, 574, 107 S. Ct.

851, 857, 93 L. Ed. 2d 954 (1987).

[¶22.]       Because “children can be easy victims of the law” and “may lack the

sophistication, knowledge, or maturity to understand the ramifications of an

admission[,]” we will “take special care to scrutinize the record when juveniles are

involved.” J.M.J., 2007 S.D. 1, ¶ 14, 726 N.W.2d at 627-28 (citations omitted). In

fact, we afford a juvenile “additional, not less, protection of [her] constitutional

rights.” Id. ¶ 15, 726 N.W.2d at 628 (citation omitted).

[¶23.]       A totality of the circumstances analysis applies in deciding whether a

juvenile knowingly and intelligently waived her Miranda rights. Fare v. Michael

C., 442 U.S. 707, 724-25, 99 S. Ct. 2560, 2571-72, 61 L. Ed. 2d 197 (1979); Horse,

2002 S.D. 47, ¶ 13, 644 N.W.2d at 218. “We consider the juvenile’s age, experience,

education, background, intelligence,” level of maturity, “capacity to understand the

warnings, the nature of [the] Fifth Amendment rights, and the consequences of

waiving such rights . . . together with the gravity of [any] misrepresentations used

by the interrogating officers.” Horse, 2002 S.D. 47, ¶ 13, 644 N.W.2d at 218-19

(citations omitted). Although not per se rules, other significant factors taken into

consideration are whether the juvenile was warned “of the possibility of being tried

as an adult,” whether notice was given to the juvenile’s parent or guardian, and




                                           -15-
#26544

whether the juvenile had an opportunity to confer with the parent or guardian. 9

J.M.J., 2007 S.D. 1, ¶¶ 15-16, 726 N.W.2d at 628 (citation omitted).

Age, experience, education, background, intelligence, and maturity

[¶24.]         At the time of questioning, Diaz was 15 years and two months old. She

moved to Indiana from Mexico when she was 11 years old and had reached the

ninth grade at South Side High School in Fort Wayne, Indiana. While in school in

Mexico she had received reasonably good academic marks. While in Fort Wayne,

she struggled in classes that required proficiency in English, but performed

reasonably well in English as a second language class. Ms. Bookmeyer, Diaz’s

teacher for grades six through eight, characterized a sixth grade Diaz as a good

student, hard-working, talkative, and very respectful. During her seventh grade

year Diaz began her relationship with Salgado, she began to skip school in her

eighth grade year, and eventually dropped out of school in the fall of her ninth

grade year.




9.       Amici curiae urge this Court to adopt a per se rule that a juvenile must be
         afforded meaningful consultation with an interested adult, preferably an
         attorney, before interrogation. We decline to adopt such a rule. South
         Dakota case law is clear that affording that opportunity to a juvenile is a
         factor in the totality of circumstances, not a per se rule. Horse, 2002 S.D. 47,
         ¶ 26, 644 N.W.2d at 224; J.M.J., 2007 S.D. 1, ¶ 15, 726 N.W.2d at 628. If the
         Legislature intended to create such a rule, it could have done so after our
         decision in Horse. However, no such change has been made to SDCL 26-7A-
         15. See Iowa Code Ann. § 232.11 (West 2014) (providing that a child taken
         into custody for any alleged delinquent act cannot waive his right to counsel
         if the child is under sixteen years of age unless written consent of the child’s
         parent is given and that the waiver of a child over sixteen years of age is only
         valid if the child’s parents are notified that the child has been taken into
         custody, of the alleged delinquent act of the child, of the location of the child,
         and of the right of the parent to visit and confer with the child).

                                            -16-
#26544

[¶25.]       As a result of her relationship with Salgado, Diaz was a victim of

physical and sexual abuse. When she was still 13 years old, Diaz began a sexual

relationship with Salgado. At 14, Diaz became pregnant with Salgado’s child, which

she carried to term. At 15, Diaz ran away from home with Salgado, leaving her

infant daughter behind in her mother’s care.

[¶26.]       Diaz’s psychologist conducted psychological evaluations of Diaz. The

pertinent findings of those tests included that Diaz possessed tendencies toward

oppositional, resistant, sneaky, and underhanded behavior. Both the State’s and

Diaz’s evaluating psychiatrists diagnosed Diaz with adolescent onset conduct

disorder and said she exhibits unacceptable behavior for a child of her age. It

appears Diaz’s symptoms first manifested at the time she began her relationship

with Salgado. Given Diaz’s psychiatric testing, psychological testing, and history,

the trial court found Diaz to be emotionally unstable and immature for her age.

[¶27.]       Diaz had limited contact with the court system until the investigators

in this case questioned her. Prior to police questioning, Diaz had not experienced

the criminal side of the legal system nor had she faced delinquency charges that

might have involved representation by an attorney or the explanation of her

constitutional rights. Diaz did, however, have experience with the Indiana

Department of Child Services (IDCS). Diaz had been adjudicated as a child in need

of services and before fleeing to South Dakota, was monitored regularly by an IDCS

family case manager. In addition, her family case manager explained rules and

laws of the United States and the importance of keeping those rules and laws.




                                         -17-
#26544

[¶28.]       Diaz exhibited average intelligence. Prior to her truancy from school

she received adequate academic marks. She scored average for IQ and cognitive

abilities, above average in nonverbal IQ, and below average in verbal expression.

The reports indicated that her lower verbal expression was more likely a sign of

language skills and not the result of a developmental disorder. Diaz’s English

reading ability was at the kindergarten level in one test and the third to fourth

grade level in another. Her ability to understand and orally use the English

language was at the first to third grade level. No tests were administered to

determine Diaz’s proficiency in Spanish.

[¶29.]       Diaz was young, immature, a victim of abuse, and limited in English,

but she possessed average intelligence and had some experience with authority.

Her repeated attempts to deceive law enforcement before and during questioning,

her fabrication and orchestration of a false story, and her attempts to align her

story with Salgado’s through the wall of the interview rooms exhibit her

understanding of the gravity of the situation.

The gravity of any misrepresentations used by the interrogating officers

[¶30.]       The State argues that law enforcement properly advised Diaz of her

Miranda rights. Diaz argues that multiple misrepresentations made by law

enforcement to Diaz regarding her rights precluded Diaz from knowingly and

intelligently waiving her rights. No precise formulation of the Miranda rights is

necessary; rather, the inquiry we make is “whether the warnings reasonably

convey” the “rights as required by Miranda.” Florida v. Powell, 559 U.S. 50, 60, 130

S. Ct. 1195, 1204, 175 L. Ed. 2d 1009 (2010) (citations omitted). “In determining


                                         -18-
#26544

whether a particular warning adequately conveys [these rights], a reviewing court

must look to the warnings as a whole rather than focusing on one sentence in

isolation.” State v. Rhines, 1996 S.D. 55, ¶ 28, 548 N.W.2d 415, 428 (citations

omitted).

[¶31.]       First, Diaz emphasizes that Reinesch misrepresented the importance

of her Miranda rights when he prefaced the first advisement with, “there’s a

protocol that I’ve gotta go through first, okay? Not a big deal at all and we’ll get

through this and we’ll getcha takin’ care of.” Reinesch then read Diaz her Miranda

rights and asked if she understood. Diaz replied, “No . . . you talk so fast.”

[¶32.]       Considering Diaz’s limited English and her lack of understanding her

rights because of the speed of Reinesch’s speech, it is likely Diaz did not fully

understand the word “protocol” and what Reinesch was referring to as “not a big

deal.” Indeed, upon being asked by Soto whether she understood the rights given by

Reinesch in English, Diaz stated, “I don’t understand anything[,]” attributing the

lack of understanding to her limited English capabilities. On appeal, Diaz

repeatedly makes note of her limited English, but at the same time argues that

English words used by Reinesch that downplayed her rights weigh against a

knowing and intelligent waiver. Diaz cannot have it both ways. Reinesch’s

prefatory remarks downplaying the importance of Diaz’s Miranda rights were

improper, but we do not agree with Diaz that Reinesch’s words poisoned the entire

interrogation. Rather, in looking at the warnings as a whole and Diaz’s responses




                                          -19-
#26544

to those warnings, including her advisement in Spanish, we conclude the warnings

were reasonably conveyed. 10

[¶33.]         After Diaz said she did not understand the first reading of the

Miranda rights because Reinesch talked too fast, Reinesch re-read Diaz her

Miranda rights and again asked if she understood. Diaz replied, “I think so.”

Reinesch went on to explain that “basically” Diaz did not have to speak with him if

she did not want. To which she replied, “So I don’t need – I stay silent also?”

Reinesch replied, “You – you can if you want to.” After a little more conversation,

Diaz says, “I don’t know.” Soto then asked, “Is there any part of that that you don’t

understand, the rights that [Reinesch] – that he read to ya?” Diaz replied, “I don’t

understand anything.” Then Soto read Diaz her Miranda rights in Spanish and

Diaz stated she understood. 11

[¶34.]         Diaz argues that the second reading of the Miranda rights in English

and the subsequent explanation of the right to remain silent inaccurately

summarized those rights and downplayed Diaz’s right to an attorney by focusing


10.      The dissent accuses the Court of both condemning and defending Reinesch’s
         remarks. We disagree. We do not defend the remarks but conclude, in
         applying the totality of the circumstances, that Diaz knowingly and
         intelligently waived her Miranda rights.

11.      The dissent notes that Diaz responded appropriately to some of the questions
         put to her in English and suggests that the Court inappropriately seizes on
         Diaz’s remark that she did not understand anything Reinesch said. Diaz’s
         appropriate responses to English questions do not confirm she understood the
         Miranda rights Reinesch gave her. Indeed, when she was asked if she
         understood the rights Reinesch had just given, Diaz twice stated she did not.
         However, when asked in Spanish, Diaz unequivocally stated she understood.
         The Court does not seize only on Diaz’s statement that she did not
         understand anything Reinesch said, but rather relies on all of Diaz’s
         remarks, and all the other factors that are required for us to consider.

                                          -20-
#26544

solely on the right to remain silent. We agree with Diaz that Reinesch’s follow-up

explanation of the Miranda rights was not thorough in that it did not include

explanation of the right to an attorney. However, although Diaz’s response to

Reinesch’s explanation of the right to remain silent indicates that she understood

that right, she stated prior to her Spanish advisement that she did not “understand

anything” that Reinesch had said. Almost immediately following that statement,

Diaz received her Miranda rights in Spanish, and indicated she understood all of

her rights.

[¶35.]        Next Diaz argues that she was misled because the officers suggested to

her that they mainly wished to talk about the events in Indiana, rather than

Jasmine. The record is clear that Diaz knew the officers wanted to talk about

Jasmine. After Reinesch told Diaz she did not have to talk with him, he said, “Do

you – do you – do you wanna have a conversation with me?” Diaz replied, “But

about me or about . . . Jasmine?” Reinesch replied, “ – everything, everything. I’d

like to talk about you and then, you know, whatever it goes from there, that – that’s

where it goes.” In addition, after Soto had begun speaking in Spanish and had read

Diaz her Miranda rights, Soto asked, “Do you want to talk with us?” Diaz replied,

“But, about me?” Soto said, “About you, about Jasmine, about Alexander,

everything.” The officers told Diaz, in both English and Spanish, that they were

concerned for her safety and that they wanted to talk to her about what happened

back in Indiana, but they also explicitly stated they wanted to talk about Jasmine.

[¶36.]        Finally, Diaz claims the officers used deceptive tactics and

misrepresentations regarding Mother’s consent to get Diaz to speak with them. On


                                          -21-
#26544

two occasions, in both English and Spanish and before asking if Diaz wanted to

talk, the officers told Diaz that they had spoken with Mother to obtain Mother’s

permission to speak with Diaz. Given Mother’s statement that Diaz had called

Mother that morning and said Salgado beat Diaz and brought her to South Dakota,

it was reasonable for the officers to tell Diaz they had Mother’s permission to ask

Diaz questions. After Soto’s conversation with Mother, the officers had learned

Diaz was 15 years old, a young mother to Salgado’s child, and was a potential

physical and sexual abuse victim of Salgado, a man more than five years her senior.

Without bypassing the necessary Miranda advisements and based on the additional

information gathered from Mother, the officers were encouraging Diaz to explain

what happened. The officers believed Diaz and Salgado were the last to see

Jasmine alive and knew of the potential abuse highlighted by Mother, but the

officers could not conclude at that time if Diaz participated in the murder or was a

victim herself. In this specific situation, the officers’ behavior did not preclude Diaz

from knowingly and intelligently waiving her Miranda rights. 12

[¶37.]         While the first two English Miranda warnings adequately advised

Diaz of her right to stop questioning at any time by advising Diaz she had the

continuing right to remain silent, we note from the translation of Soto’s Spanish

advisement that it appears Soto did not inform Diaz of her continuing right to


12.      Diaz also advances that the failure to contact the Mexican consulate was a
         violation of Article 36 of the Vienna Convention and should be a factor
         weighing against a knowing and intelligent waiver. Even if a violation
         occurred, the exclusionary rule would not apply. Sanchez-Llamas v. Oregon,
         548 U.S. 331, 349, 126 S. Ct. 2669, 2681, 165 L. Ed. 2d 557 (2006)
         (“Suppression would be a vastly disproportionate remedy for an Article 36
         violation.”).

                                          -22-
#26544

remain silent. 13 See State v. Brings Plenty, 459 N.W.2d 390, 395-96 (S.D. 1990);

Rhines, 1996 S.D. 55, ¶¶ 15-17, 548 N.W.2d at 426-27. However, the advisements

as a whole and Diaz’s responses exhibit she understood that she could stop

questioning at any time. During the Spanish advisement, Diaz stated she

understood her right to “remain silent.” Further, when Soto asked Diaz if she

wished to talk in Spanish or English, Diaz replied, “In Spanish so I don’t get

confused and say too much or too little.” Diaz’s desire to speak in Spanish so she

could limit her answers displays her understanding of her continuing right to

remain silent.

[¶38.]       The police conduct Diaz advances to this Court as deceptive or

misrepresentative does not rise to the level of misconduct found in other cases

involving police misconduct where juveniles’ confessions were suppressed. In Doody

v. Ryan, 649 F.3d 986 (9th Cir. 2011), the detective’s recitation of Miranda’s

warnings consumed 12 pages of transcript. Id. at 1003. The detective

administering the warnings “downplayed the warnings’ significance, deviated from

an accurate reading of the Miranda waiver form, and expressly misinformed

[Defendant] regarding his right to counsel” by ad-libbing that the right to counsel

applied only if defendant was involved in a crime. Id. Taken together, the Ninth


13.   The English translation of Soto’s advisement does not include the word
      “continuing.” Because this issue was not presented to the trial court or to this
      Court, there is no evidence in the record as to whether the Spanish word
      “permanecer” (“to remain,” “to stay”) that was used in the Spanish advisement
      is understood to be a continuing right. Further, although Reinesch’s Miranda
      card apparently contained the word “continuing,” Soto translated the
      advisements “just the way they [were] written” from his own Miranda card.
      There is no evidence in the record as to how the rights were written on Soto’s
      Miranda card.

                                         -23-
#26544

Circuit concluded that the Miranda warnings given to Doody “were inadequate and

his confession was therefore inadmissible.” Id. at 1023. The facts of this case are

materially distinguishable from Doody. Here, the Miranda warnings were spoken

verbatim to Diaz, there was no express misinformation given about the Miranda

rights, and even if Diaz understood the short explanation by Reinesch regarding

Diaz’s right to remain silent, it does not equate to the 12-page rambling of the

Miranda advisement in Doody.

[¶39.]       In State v. Horse, the officers did not even attempt to contact the

juvenile’s parents or his aunt and refused defendant’s request to confer with his

adult half-brother. 2002 S.D. 47, ¶¶ 21, 27, 644 N.W.2d at 222, 225. In State v.

Lohnes, the officers and state’s attorney deliberately delayed a hearing in front of

the court because they knew the judge would appoint a lawyer and the juvenile

would refuse to confess to the murder. 324 N.W.2d 409, 411 (S.D. 1982). In State v.

Caffrey, the officers, without notifying any family member or adult, continually

pressured the juvenile and repeatedly lied to the juvenile that he would be forced to

take a lie detector test. 332 N.W.2d 269, 271-72 (S.D. 1983).

[¶40.]       None of the actions taken by the officers with Diaz rise to the level of

impropriety found in these other cases. The officers continually tried to contact

Diaz’s parents, gave Mother the opportunity to speak with Diaz, obtained Mother’s

consent to speak to Diaz, made sure Diaz understood each Miranda right prior to

asking her to talk to them, gave Diaz the adult advisement, did not deliberately

delay a hearing in front of the court but rather obtained a temporary custody

directive that same evening, held a hearing the next day, and never lied to Diaz to


                                         -24-
#26544

get her to talk. Moreover, the nature and tone of questioning throughout was

conversational. The officers did not threaten, swear at, or intimidate Diaz. She was

fed, well rested, and given multiple breaks.

[¶41.]       Diaz’s full understanding of her Miranda rights as evidenced by the

Spanish Miranda advisement and Diaz’s statement that she understood those

rights, Diaz’s knowledge that the police wanted to talk with her about Jasmine, the

conversational tone of questioning, the time of day, and the relatively short

questioning time prior to her confession weigh in favor of a knowing and intelligent

waiver.

Capacity to understand the warnings, the nature of the Fifth Amendment rights, and

the consequences of waiving such rights

[¶42.]       Although Diaz possesses average cognitive ability, Diaz’s limited

abilities in English pose a hardship for her. To aid her understanding of English,

she relies on gestures, facial expressions, and repetitions. While Spanish is her

stronger language, Diaz appeared to understand most of what the officers said to

her, evidenced by her appropriate responses to requests and her attempts to

deceive. Nonetheless, the transcript reveals various occasions that exhibit her

struggle with concepts and words.

[¶43.]       After Reinesch’s first advisement, when asked if she understood, Diaz

said, “No,” explaining that Reinesch spoke too fast. After Reinesch’s second

advisement, Diaz first indicated that she thought she understood her rights, then

moments later told Soto she did not understand “anything,” attributing it to her

limited English skills and explaining that she understood and knew how to speak


                                          -25-
#26544

some things in English, but not others. Although she repeatedly lied to the officers,

these statements made by Diaz align with her English testing results.

[¶44.]         In any event, her capacity to understand the warnings was resolved

when Soto administered Diaz her Miranda rights in Spanish. After Soto informed

Diaz of each right, he confirmed with her that she understood that right. It was

only after she affirmatively acknowledged her understanding that Soto moved on to

inform Diaz of her next right. When all Miranda rights had been given, Soto then

asked Diaz if she understood all her rights. Diaz verbally affirmed her

understanding. 14 The remainder of the interview took place almost entirely in

Spanish. Diaz communicated effectively, providing appropriate answers to

questions, and never stated she did not understand what Soto was saying or that

she was confused by his statements. She was not under the influence of drugs or

alcohol and appeared to be in good health. Diaz was brought to the police

department at 1:00 p.m. and stayed there until approximately 10:00 p.m., but was

only questioned for approximately an hour and a half prior to confessing.

[¶45.]         As noted above, the nature of Reinesch’s preface to the advisement did

not poison the entire questioning. Reinesch read the rights twice and then



14.      Amici curiae urge this Court to require police to ask juveniles to explain the
         Miranda rights in their own words prior to obtaining a waiver. Although we
         agree this practice might be helpful in determining whether a juvenile made
         a knowing and intelligent waiver, we decline to make it a per se rule. The
         totality of the circumstances standard dictates whether a juvenile
         voluntarily, knowingly, and intelligently waives her Miranda rights. Fare,
         442 U.S. at 724-25, 99 S. Ct. at 2571-72; Horse, 2002 S.D. 47, ¶ 13, 644
         N.W.2d at 218. We have declined to adopt per se rules in the past and we
         find no reason to do so now. J.M.J., 2007 S.D. 1, ¶¶ 15-16, 726 N.W.2d at
         628.

                                           -26-
#26544

expanded on the right to remain silent. Although Reinesch omitted the right to an

attorney in his expanded explanation, Soto subsequently provided each of the

Miranda rights to Diaz in Spanish to which she stated she understood.

[¶46.]        In addition, the officers adequately advised Diaz that she could be

tried as an adult for any charges stemming from the questioning. The following

conversation took place in Spanish and exhibits Diaz understood the adult

advisement:

              Soto: And also, another thing that I have to tell you is . . . um . .
              . if these events end up in court, it’s possible that they could
              charge you as an adult, as an adult person of –
              Diaz: But, what charges?
              Soto: Any charge that results from here. Do you understand?
              Diaz: Uh-huh.

[¶47.]        Although Diaz never expressly waived her Miranda rights, “[a]n

express verbal or written waiver from a defendant is not required to satisfy the

constitutional requirements of a knowing, intelligent, and voluntary waiver.”

Ralios, 2010 S.D. 43, ¶ 32, 783 N.W.2d at 657 (citations omitted). “A valid Miranda

waiver can be inferred when the defendant understands the rights and engages in a

course of conduct reflecting a desire to give up those rights.” Id. (citations omitted).

[¶48.]        This is a case where two lower court judges reached different

conclusions on the question of Diaz’s waiver. Our de novo review and independent

determination is that Diaz understood her rights. Prior to giving any incriminating

statements, Diaz was informed of her Miranda rights twice in English and once in

Spanish. Although she stated she did not understand the Miranda rights given in

English by Reinesch, after receipt of the Miranda rights in Spanish, she stated she

                                           -27-
#26544

understood those rights. She knew that charges could stem from the questioning

and that she could potentially be tried as an adult. Besides the answers she gave to

police, her understanding of the situation is evidenced by her repeated questions of

whether they were going to talk about Jasmine, her attempts to conspire with

Salgado through the wall of the interview rooms, and her attempts to deceive law

enforcement.

[¶49.]         Diaz also engaged in a course of conduct reflecting a desire to give up

her rights. After Soto advised Diaz in Spanish, he asked her if she wished to talk to

the officers. The conversation in Spanish continued:

               Diaz: But, about me?
               Soto: About you, about Jasmine, about Alexander, everything.
               Diaz: About Jasmine, all that I know is that the other day –
               Soto: First of all, do you want to talk, yes or no?
               Diaz: Yes.
               ....
               Soto: (In English) Okay. Okay, now, do you want to continue
               speaking in – in English for Joel’s benefit? Or do you wanna
               speak in Spanish?
               Diaz: (In Spanish) In Spanish so that I don’t get confused and
               say too much or too little.

Without answering whether or not she wanted to talk with the police officers, and

with an understanding of her Miranda rights, Diaz quickly jumped in to talk about

Jasmine. In fact, Soto had to stop her to clarify whether Diaz wanted to talk. Diaz

unequivocally said, “Yes.” Following up on her desire to talk with the officers, Soto

asked whether she wanted to speak in English or Spanish. Diaz preferred Spanish

so she did not get confused and say too much or too little. Diaz proceeded with the

questioning and ultimately confessed. Indeed, the trial court relied on “Diaz’s
                                       -28-
#26544

apparent willingness to speak with law enforcement” in finding that Diaz made her

statements voluntarily. A waiver of Miranda rights is implied because Diaz stated

she understood her rights and her conduct throughout the questioning reflected a

desire to give up those rights.

Parental notification, consent, and opportunity to confer with juvenile

[¶50.]         When a juvenile is taken into custody, the officer who takes the

juvenile into custody must “immediately, without unnecessary delay in keeping with

the circumstances,” inform the juvenile’s parent of the temporary custody and the

right to a prompt hearing. SDCL 26-7A-15 (emphasis added); see also Horse, 2002

S.D. 47, ¶ 36, 644 N.W.2d at 227 (Gilbertson, C.J., dissenting). If the juvenile’s

parent cannot be located after reasonable inquiry, the officer taking custody of the

juvenile “shall report that fact and the circumstances immediately to the state’s

attorney.” Id. The state’s attorney shall notify the juvenile’s parent, “without

unnecessary delay, of the time, date, and place of the temporary custody hearing.”

Id. The hearing shall be held within 48-hours after the juvenile was taken into

custody. 15 Id. SDCL 26-7A-15 is “[a] crucial statutory safeguard to assure the due

process rights of juveniles taken into custody[.]” Horse, 2002 S.D. 47, ¶ 17, 644

N.W.2d at 220.



15.      SDCL 26-7A-15 outlines that the hearing shall be held within 24 hours if it
         concerns any apparent child in need of supervision pursuant to SDCL 26-8B-
         3 or shall be held within 48 hours if it concerns any apparent delinquent child
         pursuant to SDCL 26-8C-3. SDCL 26-8C-3 applies to juveniles charged with
         a crime of violence under SDCL 22-1-2(9). Because Diaz was charged by
         juvenile petition with murder and arson (both crimes of violence), she had the
         right to a temporary custody hearing within 48 hours from when she was
         taken into custody. Regardless, Diaz received a hearing the next afternoon.

                                           -29-
#26544

[¶51.]         Here, officers took reasonable action to immediately locate and reach

Diaz’s mother to inform her of the temporary custody. While it took nearly three

hours to do so, none of that delay is attributable to the authorities’ conduct. Had

Diaz truthfully provided investigators her name, date of birth, and parental contact

information at the outset, officers likely would have been in contact with Mother

much sooner. Because of the officers’ reasonable actions taken to locate Diaz’s

mother, and the subsequent location of Mother, the officers were not required to

contact the state’s attorney under SDCL 26-7A-15.

[¶52.]         Although consent from Mother to question Diaz is not required, 16 Soto

obtained that consent during his conversation with Mother. 17 The trial court

concluded that Soto improperly gained consent when he informed Mother that Diaz

was a potential witness in another investigation instead of a suspect. However, at

that point in the investigation, Soto believed Diaz was only a witness. The

investigation had just recently revealed the true identities of Diaz and Salgado and




16.      Nothing in SDCL 26-7A-15 requires law enforcement to secure consent to
         interrogate a juvenile. The only requirements that fall on law enforcement
         are to notify the parent of the “temporary custody and of the right to a
         prompt hearing by the court to determine whether temporary custody should
         be continued.” SDCL 26-7A-15.

17.            Mother: (Mother talking to another person in the background) .
               . . investigation, they are investigating over there and I think
               another matter, (inaudible) I don’t know, but they want
               permission, for me to talk, for me to give permission for her to
               talk, since she is a minor they need to say . . . (back speaking
               with Soto) Well, it’s alright, well, you can interrogate her.

                                          -30-
#26544

also that Diaz was a physical abuse victim of Salgado. 18 Even imputing the other

officers’ knowledge to Soto, he was the only officer privy to the phone conversation

that included Mother’s accusations of abuse. As a result, prior to informing Mother

that Diaz was a potential witness in an investigation, he could not have concluded

whether Diaz was a suspect in the murder or a victim herself. Further, there is no

statutory requirement in South Dakota that parental notification must include an

explanation of the alleged delinquent act of the juvenile. We will not add such a

requirement. Petition of Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D. 1984)

(“[C]ourts have no legislative authority, and should avoid judicial legislation, a

18.   The following exchange took place during Soto and Mother’s phone
      conversation, in Spanish, prior to Soto telling Mother that Diaz was a
      potential witness in an investigation:

             Mother: Today she called me in the morning, at about eleven in
             the morning.
             Soto: And she told you that [Salgado] beat her and brought her
             over here?
             Mother: Yes. Also, she told me that yesterday he beat her, that
             he beats her because she does not drink alcohol, or I don’t know
             if he takes drugs. He forces her, he beats her if she doesn’t take
             it.
             ....
             Soto: And he forced her to be [in South Dakota] right?
             Mother: Yes.
             ....
             Soto: Well, they detained her over a, another investigation and
             she gave us a false name. She gave us false information. Well,
             as if she did not want us to know who she was.
             Mother: It’s because she is afraid of the police because she says
             that since she, she went to see him, but he took her by force. Or
             the way it is, she went to see [Salgado], to talk with him, but he
             took her by force and hit her.

                                         -31-
#26544

usurpation of legislative powers, or any entry into the legislative field.”). Supra n.9.

Prior to giving her consent, Mother was allowed to ask questions of Soto, all of

which he answered. She also understood Diaz was detained in another

investigation and law enforcement wanted to question Diaz. However, Mother did

not ask what the other investigation was about. Soto was not required to get

Mother’s consent to question Diaz, was not required to explain the details of the

investigation, and was not being deceitful when he told Mother that Diaz was a

potential witness. Therefore, Soto did not improperly gain Mother’s consent.

[¶53.]       While Soto did not inform Mother of the right to a prompt hearing

regarding Diaz’s temporary custody, Mother was eventually informed of the hearing

in a manner that allowed her full participation. The record is void of any contact

between the state’s attorney and Mother regarding the date, time, and place of the

hearing. However, a temporary custody hearing was held the following day, well

within the 48-hour window for holding such a hearing, with Mother appearing

telephonically.

[¶54.]       Although parental consent to interrogate is not required under SDCL

26-7A-15, we have said that the purpose of notifying the parent is “to bring the child

in contact with a mature adult family member or caretaker.” Horse, 2002 S.D. 47, ¶

27, 644 N.W.2d at 225. After Mother gave consent, Soto stated,

             Yes, we can interrogate her. Look, if you want to talk with her,
             you can talk to her after, or now, or whatever you like, if you
             have any questions for her. Like I said, she is fine, she is not
             hurt in any way. But I would like to get your information. We
             only have the telephone number that we called on. Your name
             is Irma right? Ma’am?



                                          -32-
#26544

After obtaining consent, Soto offered Mother the chance to talk with Diaz “after,

now, or whatever” Mother preferred. However, Soto did not follow up and ask if

Mother would like to talk to Diaz, but instead requested her information.

[¶55.]       Then, toward the conclusion of the call,

             Soto: . . . I appreciate your permission to talk with the girl and
             if you would like, you can talk with her later.
             Mother: Yes if you could dial over here, please my daughter.
             Soto: Yes, of course. To this telephone right?
             Mother: Yes, please.

The translation of Mother’s answer would indicate she took Soto up on the offer to

talk with Diaz “later.” Soto testified that he understood this to mean that when

officers were done interrogating Diaz, Mother could call if she wanted. Regardless,

we conclude that Mother was given ample opportunity during the conversation to

speak with Diaz.

[¶56.]       The facts do not support a conclusion that the State excluded Mother

from consulting with Diaz. In fact, Mother was offered the opportunity to talk with

Diaz on two separate occasions, once immediately and the other “later.” Although

conflicting offers, the record indicates SDCL 26-7A-15’s purpose was met: to bring

Diaz in contact with a mature adult family member. Law enforcement fulfilled this

purpose when it worked to contact Mother and then when it offered Mother the

chance to speak with Diaz. In fact, a few moments after Soto had first offered

Mother the opportunity to talk with Diaz at any time, Mother told Soto she had a

question and asked Soto where the officers caught Diaz and where Diaz was living.

After responding, Soto asked Mother if she had any other questions. Mother then

asked if the police were going to let Diaz go, if they could send Diaz to Fort Wayne,
                                         -33-
#26544

if Diaz was there alone, and whether the police also had Salgado there. Mother

asked all these questions after Soto had told Mother she could speak to Diaz at any

time and prior to Soto telling Mother that she could talk to Diaz later. It is Mitchell

Police Department policy to allow a juvenile and parent to speak with one another if

requested, but neither Mother nor Diaz ever requested to speak with each other.

Mother was not absent from questioning because of law enforcement’s failure to

comply with the notice requirement, but rather because she did not request to speak

with Diaz even though she knew Diaz was detained over another investigation.

Further, Diaz had run away from her mother, left her child with her mother, and

been adjudicated a child in need of services while in her mother’s custody. The

relationship was clearly strained.

[¶57.]         When taking a juvenile into custody, our statutes place certain duties

on the officer. “Upon taking a child into temporary custody pursuant to [SDCL] 26-

7A-12,” 19 law enforcement must “immediately notify an intake officer who shall

conduct a hearing pursuant to [SDCL] 26-7A-13.” SDCL 26-7A-13.1. Under SDCL

26-7A-13, the court can issue a written temporary custody directive, without noticed

hearing, upon application by a state’s attorney. In addition, the officer “who takes a

child into temporary custody . . . shall notify the state’s attorney at the earliest

opportunity of the time the child was taken into temporary custody and the location



19.      SDCL 26-7A-12 provides in part that “[a] child may be taken into temporary
         custody by a law enforcement officer without order of the court . . . if the child
         is subject to arrest under the provisions of” SDCL 23A-3-2 (permitting arrest
         upon probable cause that a person committed a felony or Class 1
         misdemeanor) or “if there are reasonable grounds to believe the child has run
         away[.]”

                                            -34-
#26544

of the child.” SDCL 26-7A-17. The officer “shall also file a written report promptly

with the state’s attorney stating the facts which caused placement of the child in

temporary custody, the identity and age of the child, available information about

identities and locations of the child’s parents, . . . and if the parents were notified of

the action.” Id. The state’s attorney shall then promptly notify the court. Id. The

trial court concluded, and Diaz argues, that law enforcement’s failure to strictly

follow these statutes should weigh against a knowing and intelligent waiver. We

agree.

[¶58.]         On the evening of the interrogation, without noticed hearing, Judge

O’Brien issued a temporary custody directive. The following day, a temporary

custody hearing was held. The record does not reflect exactly when the state’s

attorney and court were notified of Diaz’s custody. However, the temporary custody

directive was issued at approximately 10:00 p.m. on the evening of the

interrogation. Although law enforcement eventually contacted the state’s attorney

and the state’s attorney contacted the court regarding Diaz, its failure to do so

immediately after law enforcement learned of Diaz’s runaway status fails to

conform to statute and weighs against a knowing and intelligent waiver. 20 Yet,



20.      Law enforcement is not required to notify an intake officer every time a
         juvenile is interviewed by the police, but only if the child is taken “into
         temporary custody pursuant to [SDCL] 26-7A-12.” SDCL 26-7A-13.1
         (emphasis added). The trial court concluded that law enforcement should
         have attempted to notify an intake officer immediately when Diaz was taken
         into custody at 1:00 p.m. However, Diaz was not initially brought in because
         she was subject to arrest or was a runaway, as is necessary under SDCL 26-
         7A-12, but she went to the station voluntarily upon request. At 1:00 p.m.
         when Diaz first arrived at the police station, officers did not know who she
         was or her involvement in the crime. Until law enforcement learned Diaz’s
                                                                (continued . . .)
                                            -35-
#26544

unlike Lohnes, the failure to comply with statute was not intentional, but was an

oversight in the heat of a fast-moving, grisly murder investigation.

Application of the Totality of the Circumstances

[¶59.]       The totality of the circumstances standard allows the court to evaluate

all the facts without reliance on a mechanical or rigid standard to resolve the

question of whether the prosecution has, in a given case, met its burden to establish

that a juvenile’s purported consent was “made with a full awareness of both the

nature of the right being abandoned and the consequences of the decision to

abandon it.” Moran, 475 U.S. at 421, 106 S. Ct. at 1141.

[¶60.]       Considering the totality of the circumstances, we do not ignore that

Diaz is a 15-year-old girl, a victim of sexual and physical abuse, and one who

exhibited immature adolescent behavior. We also take note of the timing of law

enforcement’s procurement of a temporary custody directive and its lack of strict

compliance with SDCL 26-7A-13.1 and related statutes. Plus, we note that Officer

Reinesch made prefatory remarks downplaying the importance of the Miranda

rights. However, Diaz is of average intelligence, has many adult experiences, has

some limited experience with state authority, received her Miranda rights twice in

English and once in Spanish, stated she understood those rights, and exhibited a

clear willingness to speak with the officers. She also repeatedly attempted to


________________________
(. . . continued)
         true identity and her runaway status, there was no duty on the police officers
         pursuant to SDCL 26-7A-13.1. When law enforcement learned of Diaz’s
         runaway status at approximately 3:30 p.m. it became subject to SDCL 26-7A-
         13.1’s mandate to immediately contact an intake officer concerning the
         temporary custody.

                                         -36-
#26544

deceive the officers by lying about her age, name, and whereabouts. She even

conspired with Salgado through the wall of the interview rooms in order to better

deceive law enforcement. Diaz was not under the influence of drugs or alcohol at

the time of the questioning, the questioning was conversational with no threats

made to Diaz, and the time of day and length of questioning were reasonable.

[¶61.]       This is a case where the facts are essentially undisputed. Our

obligation is to make a de novo review of the application of a legal standard to those

facts. No one factor preponderates. Taken in totality, we conclude that the State

met its burden to show more likely than not that Diaz’s waiver of her Miranda

rights was “with a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it.” Id. Thus, the trial court erred

in suppressing Diaz’s confession.

[¶62.]       Reversed and remanded.

[¶63.]       GILBERTSON, Chief Justice, and SEVERSON, Justice, concur.

[¶64.]       ZINTER, Justice, concurs with a writing.

[¶65.]       KONENKAMP, Justice, dissents.



ZINTER, Justice (concurring).

[¶66.]       The Court and the dissent emphasize the heightened concerns that

exist when juveniles are subject to police interrogation. Both correctly stress the

“special care” we take in scrutinizing the record in juvenile cases. On this record,

however, I join the Court’s thorough analysis of the totality of the circumstances. I




                                         -37-
#26544

write only to highlight the evidence that, in the final analysis, reflects a knowing

and intelligent waiver of Diaz’s Miranda rights.

[¶67.]          Diaz stated that she did not understand the two improper Miranda

advisements that Officer Reinesch gave in English. Significantly, Diaz told

Reinesch and Officer Soto that she did not understand what had been said by

Reinesch because of her limited English. Therefore, Soto stepped in to explain

Diaz’s Miranda rights in Spanish. Soto then clearly and concisely advised Diaz of

each Miranda right, one by one. And after each right was read, Diaz indicated that

she understood that right. What immediately followed is also significant. Soto then

clarified for Diaz that questions would pertain to Jasmine. Although Diaz

responded by starting to talk about Jasmine, Soto stopped her, to confirm that she

wanted to talk. Diaz confirmed she did. Before allowing her to continue, however,

Soto further explained that Diaz could be charged as an adult, for “[a]ny charge that

results from here”; an explanation Diaz also indicated she understood. Soto finally

asked Diaz whether she would like to continue. Diaz responded that she wanted to

talk in Spanish “so that [she would not] get confused and say too much or too little.”

This conversation between Soto and Diaz—a conversation in Spanish because Diaz

did not understand Reinesch’s advisements in English—is critical. It clearly

reflects that Diaz knowingly and intelligently waived her Miranda rights and

decided to speak with the officers about Jasmine. On this record, I join the opinion

of the Court.




                                         -38-
#26544

KONENKAMP, Justice (dissenting).

[¶68.]       If we are to preserve the integrity of our juvenile justice system, we

cannot support law enforcement tactics that mislead children into believing that

waiving their Miranda rights is “not a big deal at all.” Nor can we encourage

deceiving parents about the true reason police seek to question their children. Our

Court today upholds these practices. And nowhere in its decision to reverse does

the Court explain how the trial court erred in ruling inadmissible a statement in

which these tactics were used against a fifteen year old and her mother.

[¶69.]       The burden rests on the State to show that an accused “knowingly and

intelligently waived [her] privilege against self-incrimination and [her] right to

retained or appointed counsel.” Miranda v. Arizona, 384 U.S. 436, 475, 86 S. Ct.

1602, 1628, 16 L. Ed. 2d 694 (1966); see State v. Tuttle, 2002 S.D. 94, ¶ 9, 650

N.W.2d 20, 26. Proof only that a person in custody was given Miranda warnings

and made an uncoerced statement, “standing alone, is insufficient to demonstrate ‘a

valid waiver[.]’” Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S. Ct. 2250, 2261,

176 L. Ed. 2d 1098 (2010). The State must make the further showing that the

accused understood and gave up these rights. Id. We take special care with

children. As our Court said in State v. Caffrey, “[a] juvenile’s constitutional right

against self-incrimination should be afforded additional protection. If counsel is not

present when an admission is obtained, a court must take great care to assure that

the juvenile’s confession was voluntary ‘in the sense not only that it was not coerced

or suggested, but also that it was not the product of ignorance of rights or of

adolescent fantasy, fright, or despair.’” 332 N.W.2d 269, 272 (S.D. 1983) (quoting In


                                          -39-
#26544

re Gault, 387 U.S. 1, 55, 87 S. Ct. 1428, 1458, 18 L. Ed. 2d 527 (1967)) (internal

citation omitted).

             Use of Deception Against Parent and Child

[¶70.]       When the officers called Maricela Nicolasa Diaz’s mother, they knew

Maricela had been lying about her age and identity. They knew that she had been

involved in a prior altercation with the victim, and they knew that she was seen

with the victim just hours before her death. Yet they did not tell the mother the

real reason they wanted to talk to her daughter, only that there was a “separate

investigation” in South Dakota. They told the mother that “it is possible that

[Maricela] is a witness to what happened,” without saying what it was that

happened. At the end of the conversation, Detective Soto told the mother, “I

appreciate your permission to talk with the girl and if you would like, you can talk

with her later.” They never told the mother that they would then be seeking to

have Maricela waive her Miranda rights in connection with a murder.

[¶71.]       Our Court excuses Detective Soto’s misrepresentations because he

testified that he personally believed Maricela was only a possible witness at that

time. The trial court found that Soto’s misrepresentation was unintentional

because he “had limited information about the facts[.]” But the court found

nonetheless that “the investigation had by then established that [Maricela] was far

more than a ‘possible witness.’” Two other investigators knew this, Detectives

Reinesch and Russell, and one officer’s knowledge of a fact is generally imputed to

the other investigating officers. See, e.g., State v. Middleton, 399 N.W.2d 917, 924

(Wis. 1986) (citing cases), overruled on other grounds by State v. Anson, 698 N.W.2d


                                         -40-
#26544

776 (Wis. 2005). Without this rule, one investigator, “unaware” of the details, could

freely make inaccurate or misleading statements without any consequence.

[¶72.]         More conspicuously, Detective Soto deliberately withheld from the

mother that her daughter was to be questioned about a murder. He later testified,

“I don’t tell people what the investigation is about.” And, as Maricela’s hours-long

interrogation evolved, the officers never called the mother back to inform her that

her child’s witness status had changed to that of a suspect. The trial court

concluded: “It is difficult to imagine how a parent can meaningfully consent to her

child being questioned in a serious criminal investigation, without knowing that she

is indeed a suspect in the case rather than merely a ‘potential witness.’” Our Court

gives this no import because our statutes do not strictly require parental consent. 21

That misses the point.

[¶73.]         Why is the police deception of the mother crucial here? Because,

whether intentional or not, this deception — withholding from the mother the real

reason they wanted to talk to her daughter — set the stage for using the mother’s

permission to convince Maricela to speak to the officers. Fortified with the mother’s

uninformed consent, they plied Maricela by saying repeatedly that her mother said

it was okay to talk to her. Here is Detective Reinesch (speaking in English): “I

spoke with your mom, Irma, a little while ago and she said it was okay to talk to

you.” And Detective Soto (speaking in Spanish) reinforced the same ploy: “I spoke



21.      If police in South Dakota can question children without their parents’ consent
         or even their knowledge about the subject of the interrogation, one must
         wonder how serious a “level of impropriety” or “level of misconduct,” to use
         this Court’s terms, will be tolerated in future secret interrogations.

                                          -41-
#26544

with your Mom, Irma, a little while ago and she said it was okay to talk to you.”

And again later, Detective Soto: “Do you want to talk to us about the events? Yes or

no? Because your — I already spoke to your mom and she said that we can talk to

you about what happened and all the events with the family, with Alexander. Do

you want to talk to us?” Our Court brushes past this obvious tactic that when the

officers asked Maricela if she wanted to “talk,” they coupled it with the assurance

that her mother said “it was okay to talk to you.”

[¶74.]       Maricela had turned fifteen only two months before. She had

telephoned her mother earlier that day, as she occasionally did, this time saying

that Salgado (her adult boyfriend) had physically abused her. Now she was being

told that her mother thought it was okay for her to talk to the police. In fact,

immediately after Detective Soto’s remarks, Maricela agreed to answer the officers’

questions. Children are more susceptible to police interrogation techniques, as

Justice Sotomayor explained: “It is beyond dispute that children will often feel

bound to submit to police questioning when an adult in the same circumstances

would feel free to leave.” J.D.B. v. North Carolina, ___ U.S. ___, 131 S. Ct. 2394,

2398-99, 180 L. Ed. 2d 310 (2011). Thus, the principle we held important in State v.

Horse — that children need an opportunity for adult or legal guidance before

deciding to relinquish their fundamental rights — was twisted here to create the

suggestion that Maricela’s mother thought it was okay for her to give up her




                                         -42-
#26544

rights. 22 See 2002 S.D. 47, ¶¶ 17, 27, 644 N.W.2d 211, 221, 225. But the deceptive

tactics did not end there.

[¶75.]         Just before giving Maricela her Miranda rights, Detective Reinesch

told her, “[T]here’s a protocol that I’ve gotta go through first, okay? Not a big deal

at all and we’ll get through this and we’ll getcha takin’ care of.” In pardoning this

blatant minimization of constitutional rights, the Court declares, “it is likely

[Maricela] did not fully understand the word ‘protocol,’ and what Reinesch was

referring to as ‘not a big deal.’” Two law enforcement officers testified that from

their observations and her responses, Maricela appeared to understand everything

they spoke to her in English. But the Court seizes on a remark Maricela made to

Detective Soto — “I don’t understand anything” — as a reason to isolate Detective

Reinesch’s deceptions. A review of the interrogation transcript, however, reveals

that she responded appropriately in English to each of the numerous questions put

to her in English. Detective Soto observed that she was “talking just fine” in

English with Reinesch. And even if she did not know the word “protocol,” how does

that prove she did not understand “not a big deal at all”? From the testing done

with her, she demonstrated up to a third grade level of spoken English

comprehension. What first, second, or third grader does not understand the

meaning of no big deal?




22.      The circuit court concluded “that in asking [Maricela] whether she wished to
         speak with them, investigators invoked the consent her mother gave them.
         The problem is . . . the consent mother gave was for police to question her
         daughter as a ‘possible witness,’ rather than for the real purpose for which
         authorities wanted to question her.”

                                          -43-
#26544

[¶76.]       Our Court concedes that these “prefatory remarks downplaying the

importance of [Maricela’s] Miranda rights” were improper, but, after this passing

reproach, it still upholds them. It accuses Maricela of wanting “it both ways,” yet

the Court at once both condemns and defends these improper police tactics. Such

practices would be questionable even when used against a seasoned adult suspect.

See, e.g., Ross v. State, 45 So. 3d 403, 428 (Fla. 2010). Maricela, at age fifteen, had

no experience in the criminal justice system. Her only contact with courts was as a

child in need of supervision. She had never before been given a Miranda

advisement. She had never been represented by a lawyer. Yet the Court, citing her

puerile attempts to mislead the officers, deems her to have sufficient understanding

to waive her Miranda rights, as if being a dislocated child of an illegal immigrant, a

sexually and physically abused runaway, an emotionally unstable, immature, and

conduct-disordered youth, somehow made her better capable of understanding the

ominous consequences of relinquishing her fundamental rights.

[¶77.]       This error, presuming adult capabilities from adolescent

maladjustment, is the type of error the United States Supreme Court warned

against: “It would be ironic if these assumptions that we so readily make about

children as a class — about their inherent differences from adults in their capacity

as agents, as choosers, as shapers of their own lives — were suddenly unavailable”

because a child emulates dysfunctional adult behavior. See Thompson v. Oklahoma,

487 U.S. 815, 825 n.23, 108 S. Ct. 2687, 2693 n.23, 101 L. Ed. 2d 702 (1988).

[¶78.]       As it might serve to buttress its claim that Maricela knowingly and

intelligently waived her Miranda rights, the Court attempts to depict her as being


                                          -44-
#26544

adept beyond her years. 23 In the trial court’s decision, however, it concluded that

she was “an emotionally unstable teenager . . . immature for her age,” and her futile

attempts to deceive law enforcement officers displayed “naive immaturity.” Expert

opinion supported this view. Dr. David Bean, an evaluating psychiatrist, concluded

that “her ‘mental maturity’ is much less than one would expect from a 15-year-old

child in our society.” This Court’s strained effort to portray Maricela as other than

the troubled and immature child the police interrogated serves to demonstrate how

tenuous its decision is.

[¶79.]         In another ploy to downplay the nature of Maricela’s Miranda rights,

Detective Reinesch, as the circuit court found, “inaccurately summarized those

rights by focusing solely on the right to remain silent[.]” Here again is Detective

Reinesch:

               Okay and -- and -- basically -- basically what it is, Maricela, is, is
               you have the right to -- to not tell me whatever you don’t wanna
               tell me. If you don’t wanna tell me somethin’, you don’t have to,
               okay? That’s basically you know, what it is? You know, I’d like
               to sit down and have a conversation with ya, you know,
               especially about the stuff that’s been goin’ on from, you know,
               from Indiana and stuff like that, you know, as far as you know,
               you callin’ mom today and stuff like that. That’s what I’d like to
               talk to you about, okay? But you have the right to not talk to
               me, okay? That’s basically what I’m reading to ya. Do -- do you
               understand that?
               Maricela: So I don’t need -- I stay silent also?
               Reinesch: You -- you can if you want to. Do you -- do you -- do
               you wanna have a conversation with me? That’s basically what
               I’m talkin’ about, Maricela.



23.      The psychologist’s opinion that Maricela is “oppositional, resistant, sneaky,
         underhanded,” etc., cautioned that these were merely “possible personality
         trait[s]” shown in her psychological testing. (Emphasis added.)

                                            -45-
#26544

This misdirection along with the “mischaracterization” of rights, as the trial court

called it, made no mention of the right to first consult with a lawyer or the

continuing right to stop and consult with one. It centered on whether Maricela

wanted to “have a conversation” without mentioning the need to first waive the

rights Miranda afforded her. Our Court overlooks the rule that a Miranda waiver

is only valid if it “was the product of a free and deliberate choice rather than

intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421, 106 S.

Ct. 1135, 1141, 89 L. Ed. 2d 410 (1986) (emphasis added).

[¶80.]       Maricela never explicitly waived her Miranda rights, but the Court

nonetheless finds an implied waiver. Finding such a waiver here sets a regrettable

precedent in juvenile law. Maricela was repeatedly asked whether she wanted

merely “to talk” to the officers. Detective Soto: “And do you want to talk to us about

the events that we -- yes or no?” Detective Soto: “Do you want to talk to us about

the events? Yes or no? . . . Do you want to talk to us?” Detective Soto: “First of all,

do you want to talk, yes or no?” And finally, Detective Soto: “Okay, now, do you

want to continue speaking in -- in English for [Reinesh’s] benefit? Or do you wanna

speak in Spanish?” No mention here about “waiving” her rights. She was never

asked to waive them. Wanting to talk and wanting to waive one’s Miranda rights

before talking are separate matters the Court seeks to merge, and Maricela, being

immature and inexperienced, would not likely have grasped the distinction. This is

especially true given the deceptions and rights minimization used against her. As

the trial court concluded, “the manner used first to minimize these rights and then

to explain them in a way that excluded reference to [Maricela’s] right to the


                                          -46-
#26544

continuing presence of an attorney, and finally to ask simply if she wished to talk

with them in English or Spanish, rather than whether she wished to ‘waive these

rights and talk to us’ or some similar question” made any waiver untenable. Our

Court absolves all these improper tactics as falling short of a necessary “level of

misconduct[.]”

[¶81.]       Lastly, the trial court concluded that “[l]aw enforcement’s failure to

comply with the provisions of SDCL 26-7A-13, [SDCL] 26-7A-13.1, [SDCL] 26-7A-

15, and [SDCL] 26-7A-17,” requiring “immediate” notice to the juvenile court or

intake officer of a child taken into custody, was also a factor “weighing against a

knowing and voluntary waiver of [Maricela’s] Miranda rights.”

[¶82.]       Maricela was on “unequal footing” with her police interrogators. See

Gallegos v. Colorado, 370 U.S. 49, 54, 82 S. Ct. 1209, 1213, 8 L. Ed. 2d 325 (1962).

Juveniles “often lack the experience, perspective, and judgment to recognize and

avoid choices that could be detrimental to them.” J.D.B., ___ U.S. at ___, 131 S. Ct.

at 2403 (citation omitted). To compensate for youth and immaturity, we examine

“the juvenile’s age, experience, education, background, and intelligence, and into

whether [she] has the capacity to understand the warnings given [her], the nature

of [her] Fifth Amendment rights, and the consequences of waiving those rights.”

Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 2572, 61 L. Ed. 2d 197 (1979).

As the trial court correctly found here, in its exhaustive seventy-nine page decision,

these factors weighed against finding a knowing and intelligent waiver.




                                         -47-
#26544

             Children Should Not be Treated Like Adults

[¶83.]       We know that juveniles “may lack the sophistication, knowledge, or

maturity to understand the ramifications of an admission.” In re J.M.J., 2007 S.D.

1, ¶ 14, 726 N.W.2d 621, 627-28. Indeed, our laws prohibit children from making

potentially life-changing decisions they are not yet ready to make in such areas as

contract formation, blood donation, school attendance, marriage, and alcohol

consumption. See SDCL 26-2-1 (contract formation); SDCL 26-2-7 (blood donation);

SDCL 13-27-1 (school attendance); SDCL 25-1-9 (marriage); SDCL 35-9-1, -2.3

(alcohol consumption). The United States Supreme Court has consistently

recognized that “[t]he law has historically reflected the same assumption that

children characteristically lack the capacity to exercise mature judgment and

possess only an incomplete ability to understand the world around them.” J.D.B.,

___ U.S. at ___, 131 S. Ct. at 2403. These concepts underlie the entire basis for our

separate juvenile court system. Yet the “special care” we are required to take in

scrutinizing juvenile cases will remain illusory today. See Gallegos 370 U.S. at 53,

82 S. Ct. at 1212.

[¶84.]       This decision will surely influence how law enforcement officers handle

children in the future. Trickery and deception may perhaps have their place in

seeking admissions from adult suspects, but not with children. Horse, 2002 S.D. 47,

¶ 16, 644 N.W.2d at 220. Will South Dakota no longer recognize the difference? In

the words of the trial court, “[i]t is difficult to identify any meaningful way in which

investigators treated [this fifteen-year-old] differently from an adult. . . .” These




                                          -48-
#26544

same words can be echoed here as well: it is difficult to identify any meaningful way

in which our Court treats this child differently from an adult.

[¶85.]       Judicial decision making is a profoundly human undertaking. And

being human, our decisions often tread on the edge of uncertainty. We bear a moral

obligation, therefore, to never forget that we may be mistaken. That is why we

afford, especially with children, “every reasonable presumption against waiver” of

constitutional rights. See Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232,

1242, 51 L. Ed. 2d 424 (1977). These presumptions were not followed here; they

were merely swept aside, and I dissent.




                                          -49-
