                                        No. 118,211

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  In the Matter of P.W.G.,
                                       A Minor Child.


                              SYLLABUS BY THE COURT

1.
       In reviewing a district court's ruling on a motion to suppress, the appellate court
reviews the factual underpinnings of the decision under a substantial competent evidence
standard and the ultimate legal conclusion drawn from those facts is reviewed de novo.


2.
       The Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights guarantee the right against self-incrimination, including the
right to remain silent and the right to have an attorney present during a custodial
interrogation.


3.
       A custodial interrogation is defined as questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his or her
freedom in any significant way. An investigatory interrogation occurs as a routine part of
the fact-finding process before the investigation reaches the accusatory stage.


4.
       Factors that a court may consider in analyzing whether the interrogation was
custodial in nature include: (1) the place and time of the interrogation; (2) the duration of
the interrogation; (3) the number of police officers present; (4) the conduct of the officers
and the person subject to the interrogation; (5) the presence or absence of actual physical

                                              1
restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6)
whether the person is being questioned as a suspect or a witness; (7) whether the person
being questioned was escorted by the police to the interrogation location or arrived under
his or her own power; and (8) the result of the interrogation, for instance, whether the
person was allowed to leave, was detained further, or was arrested after the interrogation.


5.
       In juvenile cases where a child's age was known or objectively apparent to a
reasonable officer at the time of questioning, the age of the suspect is also a factor.


6.
       K.S.A. 2017 Supp. 38-2333(a) precludes introduction into evidence of statements
made by a juvenile under the age of 14 years unless the statements were made following
a consultation between the juvenile's parent or attorney as to whether the juvenile will
waive the right to an attorney and the right against self-incrimination.


7.
       If the State complies with the requirements set forth in K.S.A. 2017 Supp. 38-
2333, that compliance is a factor to consider as part of the totality of the circumstances to
determine whether the child made an intelligent and knowing waiver of the right to
remain silent and the right to have an attorney present during a custodial interrogation.
But if the State fails to comply with the requirements set forth in K.S.A. 2017 Supp. 38-
2333, even the totality of the circumstances test is not sufficient to ensure the waiver was
intelligently and knowingly made.


       Appeal from Butler District Court; KRISTIN H. HUTCHISON, judge. Opinion filed July 20, 2018.
Affirmed.


       Amanda J.M. Faber, assistant county attorney, for appellant.


                                                  2
       Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.


Before STANDRIDGE, P.J., HILL and BUSER, JJ.


       STANDRIDGE, J.: The State brings this interlocutory appeal following the district
court's decision to grant P.W.G.'s motion to suppress. After P.W.G., a juvenile, waived
his Miranda rights and made inculpatory statements during a police interrogation, he was
charged with two counts of aggravated indecent liberties with a child. Before trial,
P.W.G. moved to suppress those statements. The district court granted the motion,
finding that P.W.G.'s police interrogation was custodial and that his Miranda waiver was
invalid under K.S.A. 2017 Supp. 38-2333(b), which governs the admissibility of
confessions from a juvenile who is less than 14 years of age. For the reasons stated
below, we affirm the district court's decision to suppress the statements made by P.W.G.
during the police interrogation.


                                              FACTS

       On November 15, 2016, Audrey K. reported to the El Dorado Police Department
that she had reason to believe her 6-year-old son, E.G., had been fondled by his 13-year-
old half-brother, P.W.G., while the two boys had weekend visits with their shared
biological father, Pablo G. On November 16, 2016, Sergeant Jeff Murphy interviewed
E.G. During this interview, E.G. alleged that he and P.W.G. had touched each other's
penises approximately seven or eight times and that P.W.G. had anally penetrated him.


       That same day, Sergeant Murphy contacted Pablo and asked him to bring P.W.G.
to the police station for an interview. According to Murphy, he provided "minimal"
information to Pablo, explaining that there was an active investigation involving E.G. as
the victim of sexual abuse and P.W.G. as the alleged perpetrator of the abuse. Pablo
brought P.W.G. to the police station that afternoon for the interview. Pablo later testified

                                                 3
that when they arrived for the interview, he knew that the allegations involved P.W.G.
but was unsure as to whether P.W.G. was the alleged victim or the alleged perpetrator.


       A video recording of the interview shows Sergeant Murphy leading P.W.G. and
Pablo into a room and Murphy closing the door behind them. After the three sat down,
Murphy explained that he wanted to talk to P.W.G. about some serious things E.G. said
happened on visitation weekends at their father's house. Murphy further explained that
because of P.W.G.'s age, the interview had to be conducted with a parent present.
Murphy advised P.W.G. that he could be considered a suspect in the case because of the
nature of the offenses. At this point, Pablo asked Murphy whether the request to
interview P.W.G. was related to Audrey's request to have full custody of their children,
which the family court previously had denied. Murphy said no; the interview had to do
with allegations made by E.G. against P.W.G., which Murphy went on to say he had no
doubt were true. Citing to his extensive experience in "these cases," Murphy said the
issue was not "if" the offenses alleged by E.G. happened, but "why" they happened.
Murphy then advised that the worst thing P.W.G. could do in a situation like this one was
to deny something happened when P.W.G. knew it really had happened. Murphy
emphasized that he was very good at his job and would not bring a child to the police
station with a parent and confront the child with allegations of wrongdoing if Murphy did
not believe the allegations were true.


       At this point, Sergeant Murphy asked Pablo if he would give Murphy permission
to speak with P.W.G., noting that Pablo was more than welcome to either stay for the
interview or leave. Pablo told Sergeant Murphy that he would stay because he was
anxious to learn the details of the unspecified allegations his son E.G. had made against
his other son P.W.G. Murphy said he would provide the details of the allegations if, after
being advised of his right to remain silent and to have counsel present during the
interview, P.W.G. agreed to answer questions. Murphy went on to say that "[i]f we get
that knocked out, and you guys are willing to speak with me, then I will put all the details

                                             4
on the table." Taking out a document entitled Miranda Warning, Murphy then read and
explained to P.W.G. each of the rights set forth in it. After having P.W.G. acknowledge
by initials that Murphy read each of the rights to him, Murphy and Pablo signed as
witnesses. Murphy then told P.W.G. that "[i]f you and your dad want to read this and you
understand it, then sign and date right there and then I'll sign down there. . . . You might
have your dad read that with you. If you guys have questions, ask." The "it" to which
Murphy referred was the waiver of rights section of the Miranda Warning form. Murphy
did not verbally refer to the section as a waiver of rights, let alone explain what it meant
to waive the rights Murphy had just enumerated. After P.W.G. and Pablo silently read
and then signed the waiver, Murphy formally asked Pablo for permission to speak to
P.W.G. Pablo responded that he was fine with it because he wanted to know what was
going on. When asked, P.W.G. told Murphy that he was willing to answer Murphy's
questions.


       At the outset of the interview, Sergeant Murphy stated that he was not trying to get
P.W.G. in trouble, but serious issues needed to be addressed in order to help P.W.G.
Upon questioning from Murphy, P.W.G. confirmed that he visited Pablo's house every
other weekend and that he and E.G. shared a bedroom there. Murphy then advised
P.W.G. of E.G.'s claims of inappropriate touching between the two brothers. After a
period of silence, Murphy told P.W.G. to just be honest. When P.W.G. still did not
respond, Murphy repeated the statements he made before advising P.W.G. of his right to
remain silent and his right to have an attorney present: Murphy had no reason to think
E.G. was being dishonest, Murphy would not bring someone in with a parent unless he
believed something had happened, and that being dishonest was the worst thing P.W.G.
could do.


       P.W.G. admitted that he and E.G. sometimes slept in the same bed together and
that he helped bathe E.G. but denied that any inappropriate touching had occurred in the
bedroom or bathroom. P.W.G. said he did not know why E.G. would make such claims.

                                              5
Sergeant Murphy explained that if P.W.G. did inappropriately touch E.G., it would not
necessarily mean that P.W.G. understood that what he was doing was wrong. Murphy
stressed that if inappropriate touching had occurred, P.W.G. should talk to Murphy about
it now because it could be an impulse problem that P.W.G. could not control. Murphy
generally commented that nobody was accusing P.W.G. of hurting anyone and then
specifically commented that no one was accusing P.W.G. of hurting E.G. When P.W.G.
did not respond to Murphy's comment, Murphy asked whether P.W.G. was not talking
about the inappropriate touching because P.W.G. was afraid. After P.W.G. said no, Pablo
interjected, instructing P.W.G. to just tell the truth. Pablo went on to say that if P.W.G.
did something wrong, both Murphy and Pablo wanted to know. Pablo again instructed
P.W.G. to tell the truth.


       Sergeant Murphy then picked up where Pablo left off, explaining that it is
important to tell the truth not just because it would help P.W.G. but also because it would
help E.G. Specifically, Murphy said, "This could affect [E.G.] too as far as [E.G.] being
able to come to dad's house to visit." Murphy said that E.G.'s allegations were not
something he just made up that day. Murphy went on to reiterate that no one was mad at
P.W.G. about the situation. In support of this notion, Murphy explained that P.W.G. and
E.G. had different moms, so what happened in the relationship between Pablo and E.G.'s
mom would not affect what happened in the relationship between Pablo and P.W.G.'s
mom. Murphy commented that E.G. wanted to be able to be around their dad, too.


       At that point, which was about 28 minutes into the interrogation, P.W.G. disclosed
that E.G. had tried to touch him while they were in bed together, but he told E.G. to stop.
P.W.G. continued to deny that he had inappropriately touched E.G. Apparently not
believing P.W.G., Sergeant Murphy urged P.W.G. to disclose the truth, just like his dad
was telling him. Murphy told P.W.G. that E.G. was not lying because E.G. had no reason
to lie. Murphy noted that E.G. was in a bad situation because E.G. did not know when he
was going to get to see his dad again. At about 37 minutes into the interrogation, P.W.G.

                                              6
admitted that he had asked E.G. to touch his penis in the bathtub because he wondered
how it felt. P.W.G. claimed that he told E.G. to stop right after because he knew it was
not right. P.W.G. denied trying to anally penetrate E.G. After P.W.G.'s admission,
Murphy left the room for a few minutes. During this time, Pablo told P.W.G. that he had
to tell the truth because Pablo was not going to be able to see E.G. until the issue was
resolved. Pablo said he felt bad about the situation because P.W.G. and E.G. were both
his kids and that he wanted to help both of them. Pablo then reiterated that P.W.G. should
be honest because, again, he wanted to help P.W.G. and E.G. because they were both his
sons.


        After Sergeant Murphy reentered the room, Pablo continued talking to P.W.G.,
saying he wanted to know what was going on because E.G. was his son and P.W.G. was
his son. Pablo went on to say that everyone makes mistakes and P.W.G. should "be a
man" and be honest with Murphy, if he had not been honest so far, so they could get to
the bottom of what had happened.


        Sergeant Murphy again expressed his belief that E.G. was telling the truth and that
P.W.G. was minimizing his involvement. After Pablo encouraged P.W.G. to tell them
what happened, P.W.G. admitted that he and E.G. had touched each other's penises "once
or twice" in the bedroom and bathroom. P.W.G. also admitted that he had told E.G. not to
tell anyone because they could get in trouble. P.W.G. again denied trying to anally
penetrate E.G. Murphy then spoke about the seriousness of P.W.G.'s actions, stating that
P.W.G. was old enough to be charged with a crime and that the county attorney would
ultimately make that decision. Murphy explained that the crime of aggravated indecent
liberties with a child is a felony sex crime that, if committed by an adult, could result in a
significant prison sentence and placement on a sex offender registry. Murphy stated that
he did not think that P.W.G. was telling the full story and that he hoped P.W.G. would
talk to Pablo about what had happened. Murphy ended the interview with P.W.G. after
approximately one hour and six minutes. After the interview ended, Murphy spoke to

                                              7
Pablo alone for almost 15 minutes. Pablo expressed his shock and concern for his two
sons and stated that he was willing to do whatever he could to help both P.W.G. and E.G.
Murphy advised that it would be best if P.W.G. was not around kids for a while and that
the county attorney would decide what happened next.


       At some point after Sergeant Murphy interviewed P.W.G., Murphy interviewed
Pablo. According to Murphy, the purpose of the interview was to follow up on Pablo's
involvement in the case. Murphy clarified that Pablo was involved in the case to the
extent that Pablo was the father of both the alleged victim and the alleged perpetrator.


       The State ultimately charged P.W.G. with two counts of aggravated indecent
liberties with a child. P.W.G. moved to suppress the statements he made during the
interrogation, claiming that his Miranda waiver was invalid under K.S.A. 2017 Supp. 38-
2333, which sets forth certain criteria relating to the admissibility of juvenile custodial
confessions. In response, the State argued that K.S.A. 2017 Supp. 38-2333 was
inapplicable because P.W.G.'s interrogation was not custodial and even if it was
custodial, Sergeant Murphy fully complied with the statute by making sure a parent was
present when P.W.G. waived his Miranda rights. Following a hearing, the district court
granted P.W.G.'s motion to suppress. The State timely filed this interlocutory appeal.


                                   STANDARD OF REVIEW

       A dual standard is used when reviewing a decision ruling on a motion to suppress
a confession. In reviewing a district court's ruling, the appellate court reviews the factual
underpinnings of the decision under a substantial competent evidence standard. The
ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court
does not reweigh the evidence, assess the credibility of the witnesses, or resolve
conflicting evidence. State v. Dern, 303 Kan. 384, 392, 362 P.3d 566 (2015).



                                              8
                                          ANALYSIS

       The district court held that P.W.G.'s waiver of his right against self-incrimination
and his right to counsel were invalid under K.S.A. 2017 Supp. 38-2333(b), which in turn
required the court to suppress all statements made by P.W.G. to Sergeant Murphy at the
police station. On appeal, the State asserts two points of error in the court's holding. First,
the State argues the district court erred by finding that P.W.G. was in custody at the time
of the interrogation and, therefore, the State was not required to secure a waiver of rights
from P.W.G. Second, the State argues that even if P.W.G. was in custody, the district
court erred by finding that P.W.G.'s waiver of rights was invalid under K.S.A. 2017
Supp. 38-2333(b). We address each of the State's arguments in turn.


Custodial interrogation

       The Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights guarantee the right against self-incrimination, including the
right to remain silent and the right to have a lawyer present during a custodial
interrogation Miranda v. Arizona, 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966); State v. Aguirre, 301 Kan. 950, 954, 349 P.3d 1245 (2015). The Miranda
safeguards are triggered only when an accused is (1) in custody and (2) subject to
interrogation.


       The State argues it was not required to secure a waiver of rights from P.W.G.
because P.W.G. was not in custody at the time of the interrogation. A custodial
interrogation is defined as questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his or her freedom in any
significant way. This type of interrogation is distinguished from an investigatory
interrogation, which occurs as a routine part of the fact-finding process before the
investigation reaches the accusatory stage. State v. Warrior, 294 Kan. 484, 496, 277 P.3d


                                               9
1111 (2012) (establishing factors for determining whether interrogation is investigatory
or custodial). The State bears the burden to prove by a preponderance of the evidence that
the suspect was not in custody when interrogated. See State v. Lewis, 299 Kan. 828, 836,
326 P.3d 387 (2014).


       An objective, two-part inquiry is used to determine whether an interrogation was
custodial. Different standards of review apply to each part of the inquiry. Under the first
inquiry, we consider the circumstances surrounding the interrogation by reviewing the
district court's factual findings to determine whether they are supported by substantial
competent evidence. Under the second inquiry, we determine whether, considering the
totality of the circumstances, a reasonable person would have felt free to terminate the
interrogation and leave. This second inquiry is an objective one subject to de novo
appellate review. Warrior, 294 Kan. at 497.


       Factors that a court may consider in analyzing whether the interrogation was
custodial in nature include: (1) the place and time of the interrogation; (2) the duration of
the interrogation; (3) the number of police officers present; (4) the conduct of the officers
and the person subject to the interrogation; (5) the presence or absence of actual physical
restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6)
whether the person is being questioned as a suspect or a witness; (7) whether the person
being questioned was escorted by the police to the interrogation location or arrived under
his or her own power; and (8) the result of the interrogation, for instance, whether the
person was allowed to leave, was detained further, or was arrested after the interrogation.
Importantly, each case must be examined on its own facts; the listed factors do not
necessarily carry equal weight; and the importance of each factor will vary from case to
case. Lewis, 299 Kan. at 835. In juvenile cases where a child's age was known or
objectively apparent to a reasonable officer at the time of questioning, the age of the
suspect is also a factor because "a reasonable child subjected to police questioning will
sometimes feel pressured to submit when a reasonable adult would feel free to go."

                                              10
J.D.B. v. North Carolina, 564 U.S. 261, 272, 277, 131 S. Ct. 2394, 180 L. Ed. 2d 310
(2011).


       After reviewing these factors and considering the totality of the circumstances, the
district court judge found that the interrogation was custodial:


       "Like I said, it occurred at the police department. It's hard to imagine that a 13-year-old
       would have felt comfortable in walking out of the room at any time. The length of the
       interview I don't think was, you know, overly long; however, the questioning did go for, I
       believe, at least 45 minutes before [P.W.G.] started giving answers that I think we're
       really confessional in nature. The fact that the officer gave the Miranda is also an
       indication of it being custodial.
               "Also in this case I believe the testimony from . . . Pablo . . . that neither
       [P.W.G.] nor his father . . . had any history of criminal contact. This was a new situation
       for both of them. The questioning itself definitely had a custodial feel to it. So those all
       are factors going into my decision that it is custodial in nature."


       A review of the circumstances surrounding the interrogation reflects that P.W.G.
was 13 years old at the time of the interrogation. There is no question that Sergeant
Murphy was aware of P.W.G.'s age. Thus, in considering the totality of the
circumstances, the legal question presented is not whether a reasonable person would
have felt free to leave, but whether a reasonable 13-year-old would have felt free to
terminate the interrogation and leave. See J.D.B., 564 U.S. at 270-72, 277 (when child's
age is known or reasonably apparent to police officer, it must be considered when
determining how reasonable person in suspect's position would perceive his or her
freedom to leave for Miranda purposes).


       The interrogation occurred around 2:35 p.m. at the El Dorado Police Station. The
fact that the interrogation took place at a police station generally points to it being
custodial. See Warrior, 294 Kan. 484, Syl. ¶ 4. The State makes much of the fact that the

                                                     11
interrogation took place in a "soft" interview room that contained furniture and windows,
claiming it was more neutral than a typical interview room because it was located in an
unsecured area of the police station that is accessible to the general public. Although the
room was arguably accessible to the public, Sergeant Murphy closed the door before the
interrogation began, suggesting that it was not accessible to the public at that time. When
Murphy left the room, he closed the door behind him, which also suggests P.W.G. was
not permitted to leave. Although in his testimony he referred to it as a soft interview
room, Murphy conceded that the room was regularly used to interrogate suspects and not
just to interview witnesses for investigative purposes.


       At Sergeant Murphy's direction, Pablo got P.W.G. out of school while it was in
session and took P.W.G. to a police station to be interviewed by law enforcement, which
suggests a more serious purpose than merely an investigative interview. The interrogation
lasted a little over an hour. The duration of the interrogation is not necessarily
determinative of whether it was custodial. Murphy was the only person who questioned
P.W.G.


       With respect to the conduct of the officer and the person subject to the
interrogation, the State notes that Sergeant Murphy did not raise his voice; that Pablo was
present with P.W.G. during the interrogation; and that there is no evidence that either
Pablo or P.W.G. suffered from any mental, intellectual, or emotional problems that might
have affected their perception of whether they could terminate the questioning. Although
the State's observations are accurate, the record contains additional evidence of the
officer's conduct that weighs in favor of a finding that the interrogation was custodial in
nature. Murphy testified that even before he gave the Miranda warnings, he told P.W.G.,
"'I think there's some fondling that's taking place. The worst thing you can do is deny
something when you know it has happened.'" He also told P.W.G., "'I don't bring
someone down here with a parent unless I believe something's happened.'" Murphy went


                                              12
on to say, "I think there's some things that have happened. . . . It's not a matter of . . . 'if' it
happened, it's a matter of 'why.'"


       Telling a suspect that the "worst thing you can do is deny something when you
know it has happened" is contradictory to the Miranda warnings later given to P.W.G.
See State v. Pillar, 359 N.J. Super. 249, 268, 820 A.2d 1 (App. Div. 2003) ("A police
officer cannot directly contradict, out of one side of his mouth, the Miranda warnings just
given out of the other."); see also Hart v. Attorney General of State of Florida, 323 F.3d
884, 894 (11th Cir. 2003) ("Telling [the defendant] that 'honesty wouldn't hurt him'
contradicted the Miranda warning that anything he said could be used against him in
court."); Woods v. Clusen, 794 F.2d 293, 297 (7th Cir. 1986) ("[S]tatement to the juvenile
that it would 'be better' if Woods talked was dubious advice to the ignorant, as any
minimally competent defense counsel would be quick to attest."); Quick v. State, 599
P.2d 712, 720 n.12 (Alaska 1979) (distinguishing "between mere exhortations to tell the
truth and promises of leniency or better treatment").


       In addition, when explaining P.W.G.'s rights to him on the Miranda warning form,
Sergeant Murphy appeared to advise that P.W.G.'s right to have an attorney be present
during questioning was actually vested in Pablo:


       "[Murphy (going over Miranda warning form)]: You have the right to talk with a
       lawyer. . . . What that means is if your dad decides that you guys want to get an attorney
       or a lawyer, that's your guys' right. Okay? All you guys got to do is tell me that and we're
       done. . . . That means you guys at any point can get an attorney. . . . More so your parent
       [can get a lawyer]." (Emphases added.)


       As the district court pointed out, Sergeant Murphy refrained from asking P.W.G.
any questions until after he advised P.W.G. of his Miranda rights. In fact, Murphy readily
acknowledged at the suppression hearing that he considered P.W.G. to be a suspect, and
not a witness, after interviewing E.G. Murphy was not merely questioning P.W.G. as a
                                                   13
suspect, he was directly accusing P.W.G. of the serious allegations made by E.G.,
allegations that Murphy repeatedly told P.W.G. he believed were all true. The accusatory
nature of the questioning weighs heavily in favor of a finding that the interrogation was
custodial.


       P.W.G. was never restrained, and it does not appear from the video that Sergeant
Murphy was armed during the interrogation. Although P.W.G. was not escorted by law
enforcement to the interrogation and he was not arrested or detained afterwards, P.W.G.
did not arrive at the police station under his own free will—he was picked up at school
and transported to the police station by his father at the direction of Murphy. See In re
S.R., No. 116,245, 2017 WL 1300092, at *4 (Kan. App.) (unpublished opinion) ("It is
difficult for us to envision S.R. refusing to speak with the detective once he was brought
there by his parents."), rev. denied 306 Kan. 1318 (2017).


       Although a close case, the totality of the circumstances surrounding the
interrogation of P.W.G. in this case persuade us that a reasonable 13-year-old child would
not have felt free to terminate the interrogation and leave. See Warrior, 294 Kan. at 497;
see also Haley v. Ohio, 332 U.S. 596, 599, 68 S. Ct. 302, 92 L. Ed. 224 (1948) (in context
of police interrogation, events that "would leave a man cold and unimpressed can
overawe and overwhelm a lad in his early teens"). In finding the interrogation was
custodial and not investigative, we rely on the fact that P.W.G. was only 13 years old at
the time of the interrogation; the interrogation took place in a police station; P.W.G. was
being questioned as a suspect at all times before, during, and after the interrogation;
P.W.G. did not arrive at the police station under his own free will—he was picked up at
school while school was still in session and transported to the police station by his father
at the direction of Sergeant Murphy; Murphy told P.W.G. both before and after advising
P.W.G. of his rights that he (Murphy) did not bring someone to the police station with a
parent unless he believed something had happened; that the worst thing P.W.G. could do
was deny something when P.W.G. knew it had happened; and that it was not a matter of

                                             14
"if" the unlawful acts happened, but a matter of "why" they happened. In considering the
nine factors (the ninth being that P.W.G. was a child) relevant to whether an interrogation
is custodial or investigatory in nature, we are mindful of our Supreme Court's admonition
that no single factor outweighs another and the factors do not bear equal weight; instead,
every case must be analyzed on its own particular facts. Lewis, 299 Kan. at 835.


       For the reasons stated above, we affirm the district court's finding that the
interrogation was custodial.


Voluntariness of Miranda waiver

       Even if P.W.G.'s interrogation was custodial, the State argues that his statements
are still admissible because P.W.G. made those statements after voluntarily and
knowingly waiving his Miranda rights under the strict requirements set forth in K.S.A.
2017 Supp. 38-2333.


       K.S.A. 2017 Supp. 38-2333 provides:


               "(a) When the juvenile is less than 14 years of age, no admission or confession
       resulting from interrogation while in custody or under arrest may be admitted into
       evidence unless the confession or admission was made following a consultation between
       the juvenile's parent or attorney as to whether the juvenile will waive the right to an
       attorney and the right against self-incrimination. It shall be the duty of the facility where
       the juvenile has been delivered to make a reasonable effort to contact the parent
       immediately upon the juvenile's arrival unless the parent is the alleged victim or alleged
       codefendant of the crime under investigation.
               "(b) When a parent is the alleged victim or alleged codefendant of the crime
       under investigation and the juvenile is less than 14 years of age, no admission or
       confession may be admitted into evidence unless the confession or admission resulting
       from interrogation while in custody or under arrest was made following a consultation
       between the juvenile and an attorney, or a parent who is not involved in the investigation

                                                    15
       of the crime, as to whether the juvenile will waive the right to an attorney and the right
       against self-incrimination. It shall be the duty of the facility where the juvenile has been
       delivered to make reasonable effort to contact a parent who is not involved in the
       investigation of the crime immediately upon such juvenile's arrival."


       The court held Pablo's presence at the time of waiver and during the interrogation
did not comply with the requirements set forth in K.S.A. 2017 Supp. 38-2333(b) because
Pablo was the father of both the suspect and the alleged victim. Specifically, the court
considered Pablo to be a victim under K.S.A. 2017 Supp. 38-2333(b) because "as the
alleged victim's father[,] he could be tasked with providing victim impact statements on
behalf of the six year old alleged victim, or to address the Court on the alleged victim's
behalf at a Sentencing hearing." The court ultimately held the waiver was invalid because
Pablo's irreconcilable conflict of interest prevented P.W.G. from having an impartial
parent to consult with P.W.G. about waiving his Miranda rights as required by statute.


       In challenging the district court's ruling, the State claims that Pablo does not meet
the definition of a "victim" of the crime under investigation as that term is used in the
statute. Specifically, the State notes that the Victims' Bill of Rights, K.S.A. 74-7333 et
seq., defines the terms "victim" and "victim's family" separately and suggests that Pablo
could not be a victim in this case because he did not suffer direct harm from the alleged
crime. The State contends that the district court's ruling would improperly force Pablo to
abdicate his role as a parent for one or both of his children. We agree with the State to the
extent that it contends Pablo likely did not qualify as a victim of the crime being
investigated by Sergeant Murphy. We do not agree with the State, however, that P.W.G.
voluntarily and knowingly waived his Miranda rights under the requirements set forth in
K.S.A. 2017 Supp. 38-2333.


       In In re B.M.B., 264 Kan. 417, Syl. ¶ 2, 955 P.2d 1302 (1998), our Supreme Court
adopted a bright-line rule requiring inculpatory statements taken from children less than


                                                    16
14 years old to be suppressed unless they had been given the opportunity to consult with
a parent, and both the parent and child are given warnings concerning the right to remain
silent.


                  "We hold, therefore, that a juvenile under 14 years of age must be given an
          opportunity to consult with his or her parent, guardian, or attorney as to whether he or she
          will waive his or her rights to an attorney and against self-incrimination. Both the parent
          and juvenile shall be advised of the juvenile's right to an attorney and to remain silent.
          Absent such warning and consultation, a statement or confession cannot be used against
          the juvenile at a subsequent hearing or trial." 264 Kan. at 432-33.


          In support of its holding, the In re B.M.B. court stated:


                  "We cannot ignore the immaturity and inexperience of a child under 14 years of
          age and the obvious disadvantage such a child has in confronting a custodial police
          interrogation. In such a case, we conclude that the totality of the circumstances is not
          sufficient to ensure that the child makes an intelligent and knowing waiver of his rights."
          264 Kan. at 432.


          This holding in In re B.M.B. was later codified in K.S.A. 2017 Supp. 38-2333, and
the totality of the circumstances rule remains intact for purposes of determining whether
a child under 14 years of age makes an intelligent and knowing waiver of his or her
Miranda rights. Accordingly, if the State complies with the requirements set forth in
K.S.A. 2017 Supp. 38-2333, that compliance is a factor to consider as part of the totality
of the circumstances to determine whether the child made an intelligent and knowing
waiver of the right to remain silent and the right to have an attorney present during a
custodial interrogation. But if the State fails to comply with the requirements set forth in
K.S.A. 2017 Supp. 38-2333, even the totality of the circumstances test is not sufficient to
ensure the waiver was intelligently and knowingly made.



                                                       17
       In this case, P.W.G. was less than 14 years old at the time of the custodial
interrogation; thus, K.S.A. 2017 Supp. 38-2333 is applicable here. As noted above, there
is nothing in the record to support a finding that Pablo was an alleged victim or alleged
codefendant of the crime under investigation; thus, subsection (b) of the statute is
inapplicable to the facts here. That leaves us with subsection (a), which precludes
introduction into evidence of statements made by a juvenile under the age of 14 years
unless the statements were "made following a consultation between the juvenile's parent
or attorney as to whether the juvenile will waive the right to an attorney and the right
against self-incrimination." K.S.A. 2017 Supp. 38-2333(a). The State claims Sergeant
Murphy complied with the statute because P.W.G.'s parent, Pablo, was present when
P.W.G. acknowledged that he understood his right to remain silent, to have an attorney
present, and his right against self-incrimination but was willing to waive those rights and
make a statement and answer questions.


       Although the State is correct that Pablo was present while Sergeant Murphy
explained P.W.G.'s rights and when P.W.G. acknowledged that he understood those
rights, the statute requires more than mere presence of a parent. Specifically, the statute
requires a consultation with the parent as to whether the juvenile will waive the rights at
issue. Here, there was no consultation. In fact, Murphy concedes he did not even give
Pablo and P.W.G. enough time to engage in such a consultation. When asked about it at
the hearing, Murphy testified,


               "I don't think I honestly gave them enough time to move forward with that. I
       think I read the Miranda [rights] to [P.W.G.], and I believe I made sure that Pablo was
       still okay for me to speak with his son, and I began the interview. As far as taking a
       timeout and let them discuss anything, no, I didn't."


       Notably, our review of the video recording confirms that Sergeant Murphy did not
provide any time for Pablo to consult, provide an explanation, or give guidance to P.W.G.


                                                   18
After going over P.W.G.'s rights with him, Murphy immediately told P.W.G. to read the
information at the bottom of the page and, if he understood and agreed, to sign it.
Significantly, the information at the bottom of the page was the waiver of rights, stating
that P.W.G. understood each of his rights but was willing to waive those rights to make a
statement and answer any questions without an attorney present. After P.W.G. started
reading what Murphy referred to as the information at the bottom of the page, Murphy
told Pablo that he should probably read it, too. At no time did Murphy verbally refer to
the waiver of rights, let alone explain what it meant. And again, Murphy concedes he did
not give Pablo and P.W.G. any time to talk about whether P.W.G. should waive the right
to an attorney and the right against self-incrimination. Based on these facts, it appears the
State failed to comply with the requirements set forth in K.S.A. 2017 Supp. 38-2333(a),
which means that even the totality of the circumstances test is not sufficient to ensure that
P.W.G. made an intelligent and knowing waiver of his Miranda rights.


       But even if Sergeant Murphy had given P.W.G. and Pablo time to talk, any waiver
by P.W.G. of his Miranda rights would have been invalid given Murphy knew from the
outset that Pablo—as parent to both the alleged victim and the alleged perpetrator in this
case—had an irreconcilable conflict of interest. Pablo's known conflict of interest
necessarily would have exempted Pablo as an objective nonbiased parent with whom
P.W.G. could consult to determine whether he should waive the right to an attorney and
the right against self-incrimination as required by K.S.A. 2017 Supp. 38-2333(a).


       Sergeant Murphy testified that he knew from the outset that Pablo was the father
of both E.G. and P.W.G and that the boys had different mothers. Notwithstanding the
conflict of interest created by asking the father of both the suspect and the victim to act in
the best interests of just the suspect, Murphy testified he was comfortable calling in Pablo
to be the parent with whom P.W.G. would consult about waiving Miranda rights under
K.S.A. 2017 Supp. 38-2333(a), notwithstanding the fact that Murphy had the name and
phone number for P.W.G.'s mother, a parent who had no conflict of interest:

                                             19
       "[b]ecause [Pablo was] the father of [P.W.G.] And in my opinion him being the father—I
       don't know the dynamics of all families, all I know is that Pablo has a legal right to
       [P.W.G.], he can make decisions for [P.W.G.], and with the information that I'd received
       prior to advancing to that decision, I felt there was nothing that would hinder . . . Pablo
       from making decisions for [P.W.G.]."


       The last sentence in Sergeant Murphy's explanation—that there was nothing to
hinder Pablo from making decisions for P.W.G.—defies logic given Pablo was the father
of both the accused and the victim. The mere presence of a parent is insufficient to
protect a juvenile's rights; the parent must be acting with the interests of the juvenile in
mind. That is not to say that a parent cannot advise his or her child to cooperate with the
police or even to confess to a crime if the parent believes that the child in fact committed
the criminal act. Even if Murphy would have provided any time for Pablo to consult,
provide an explanation, or give guidance to P.W.G. regarding whether to waive Miranda
rights, Pablo's irreconcilable conflict would have precluded him from acting solely in
P.W.G.'s best interests in consulting, explaining, or guiding P.W.G.'s decision. Pablo's
comments to P.W.G. during the interrogation bear out this conflict:


                "[Pablo]: Just say what it is, [P.W.G.] . . . Tell him straight. Whatever happened,
       accept it. . . . This is the time. I made mistakes in my life. . . . and you just need to say it
       because that is the only way you learn. . . . If you think you made a mistake, if you think
       you did something wrong, he wants to know, I want to know. . . . I love you. . . . I want
       you to get help. I don't know what happened. . . . I am in shock with this. I am here to
       help you. . . .
                "[Murphy]: It's important for you . . . also important for [E.G.], too. [E.G.]
       doesn't understand exactly what's going on. . . . I'm just trying to assess things and figure
       out where we're at. Do I need to have concerns about you? . . . This could affect [E.G.]
       too as far as [E.G.] being able to come to dad's house to visit.. . . Your relationship and
       custody issue with your dad . . . you have a separate mom than [E.G.] So see, that's the
       difference there. What happens with [E.G.] and his mom and your dad doesn't even affect


                                                      20
       you and your dad's relationship or your mom and your dad's relationship. . . . And [E.G.]
       will want to be around your dad all the time, too.
               ....
               "[Pablo]: I want to help you and I want to help [E.G.] Okay? Your both kids. I
       was your age before. Okay? . . . I made mistakes in my life [P.W.G.] I have learned it the
       hard way. . . . All I am telling you [P.W.G.] is if you made a mistake, . . . of course, it
       was not right. I mean, I feel really bad about the situation because you both are my kids.
       Both of you. And I didn't know any of this. So to me if you say, dad, . . . this is what is
       going on, I'm not going to jump on you. I'm not going to be mad at you or even be mad at
       [E.G.]; I will try to find how can I help you guys. . . . So what I'm telling you . . . all I'm
       asking you [P.W.G.], be honest about the situation. I want to help you, and I want to help
       [E.G.] You both are my sons." (Emphases added.)


       Pablo's statements to Murphy after P.W.G. left the room further demonstrate the
irreconcilable conflict:


               "[Pablo]: Both are my kids. I want to protect both of them. I want them to grow
       up being brothers. . . . We got to see what this is about. I don't want to make Audrey feel
       like I'm fighting against her trying to protect him."


       Although the statute does not govern the unique facts presented in this case,
K.S.A. 2017 Supp. 38-2333(b) recognizes that there are situations where consultation
with a parent regarding the waiver of a juvenile's rights is not sufficient, such as when a
parent is an alleged victim or alleged codefendant of the crime under investigation. A
parent in these situations would have an obvious conflict of interest with the juvenile's
legal interests. Although not codified in the statute, such a conflict of interest may also
exist in cases where, as here, the parent of the juvenile is also the parent of the alleged
victim. In this case, Pablo repeatedly expressed concern for both of his sons on multiple
occasions and continually urged P.W.G. to be honest and tell Sergeant Murphy the truth
about what had happened. At the suppression hearing, Pablo testified that he only



                                                      21
encouraged P.W.G. to tell the truth because he wanted to fix the situation and needed to
know the truth in order to help the brothers "figure this out."


       Pablo's concern for finding out the truth about what had happened between his
sons was at odds with P.W.G.'s statutory right to consult with a nonconflicted parent or
attorney at the beginning of the interrogation in order to determine whether to heed the
Miranda warning and remain silent. Therefore, even if Sergeant Murphy had complied
with K.S.A. 2017 Supp. 38-2333 by giving P.W.G. time to consult with Pablo regarding
the waiver of Miranda rights, any such consultation would have been insufficient under
that statute. See Matter of Steven William T., 201 W. Va. 654, 662-63, 499 S.E.2d 876
(1997) (parental consent may be rendered meaningless where parent has conflict of
interest with child). The better practice in this case would have been for Murphy to
contact P.W.G.'s mother, who is not related to E.G. See 201 W. Va. at 664 ("[W]here law
enforcement authorities seeking to interrogate a juvenile have knowledge regarding a
potential conflict of interest between parent [or custodian] and child with respect to the
matters which are the subject of the interrogation, such law enforcement authorities must
make further inquiry regarding the appropriate person to be present with the juvenile.").


                                        CONCLUSION

       Considering the totality of the circumstances as set forth above, we affirm the
district court's finding that P.W.G. was in custody at the time of the interrogation and,
albeit upon different grounds, affirm the district court's finding that P.W.G.'s waiver of
his Miranda rights was invalid under K.S.A. 2017 Supp. 38-2333.

       Affirmed.




                                             22
                                            ***

       BUSER, J., dissenting: I dissent from the majority's holding which affirms the
district court's order suppressing P.W.G.'s incriminating admissions. In particular, I
disagree with the legal conclusion by the district court and my colleagues that Detective
Jeff Murphy conducted a custodial interrogation. In my opinion, the detective's
questioning of P.W.G. was an investigative interview for which a valid waiver of
Miranda rights was not required. Moreover, because Detective Murphy did not conduct a
custodial interrogation, I would find that K.S.A. 2017 Supp. 38-2333(a) and (b) are not
applicable to the facts and circumstances of this case. Accordingly, those provisions do
not preclude admission of P.W.G.'s incriminating statements in evidence.


                               CUSTODIAL INTERROGATION

       "A custodial interrogation is defined as questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his or her
freedom in any significant way." State v. Lewis, 299 Kan. 828, 834, 326 P.3d 387 (2014).
In this case, it is undisputed that P.W.G. was not under arrest or in custody at the time of
the interview. The question then becomes was he deprived of his freedom in any
significant way? I agree with my colleagues that to analyze this question an appellate
court looks to the eight factors most recently reprised in Lewis, 299 Kan. at 835.


       In applying these eight factors to the circumstances of this case, I will analyze
whether the district court's factual findings are supported by substantial competent
evidence, and whether the district court's legal conclusion was correct—that a reasonable
person would not have felt free to terminate the interrogation and leave. See State v.
Warrior, 294 Kan. 484, 497, 277 P.3d 1111 (2012).




                                             23
1. The place and time of the interrogation.

       With regard to this first factor, the district court simply found the "interrogation
occurred at the police station." The district court considered this factor as indicative of a
custodial interrogation. No finding was made as to the time of the interview, although it
was uncontroverted that it occurred about 2:35 p.m. at the El Dorado Police Station.


       The majority downplays the testimony that the interview was conducted in the
"soft interview room." But the undisputed testimony was that the room was in an
unsecured area of the police department, next to the municipal court clerk's office, and
accessible to the public. This was a multi-purpose room used by law enforcement, in
addition to victims, witnesses, and attorneys practicing in city court.


       The room itself was described as having a window on one wall, a bookshelf on
another, and a door with a window that allowed any occupant to see out into the public
hallway. The room contained furniture, a drawing board, table, and several chairs. In fact,
Detective Murphy's testimony was that he specifically chose the soft interview room
because of P.W.G.'s young age and it had more room to accommodate P.W.G.'s father.


       While my colleagues cite Warrior, 294 Kan. 484, Syl. ¶ 4, for the proposition that
an interview at a police station "generally points to it being custodial," slip op. at 12, in
fact, Warrior teaches the converse: "Generally, other things being equal, a person
questioned in familiar, or at least neutral, surroundings does not face the same pressures
as one questioned in a police-dominated atmosphere and this factor weights against a
conclusion that an interview was custodial." 294 Kan. 484, Syl. ¶ 4. Kansas caselaw is
replete with cases wherein an interview at a police station was found to be noncustodial.
See State v. Morton, 286 Kan. 632, 647, 186 P.3d 785 (2008) (listing cases).




                                              24
       I believe the circumstances surrounding the soft interview room and the mid-
afternoon time of the interview favor a finding that the interview was noncustodial.


2. The duration of the interrogation.

       The district court found the one-hour length of the interview was "not overly long,
but it's certainly not short." Although it is undisputed that the interview lasted about an
hour, there is disagreement regarding when, during the interview, P.W.G. made
incriminating statements about the sexual touching between him and his six-year-old
half-brother, E.G. According to the district court, P.W.G. gave incriminating answers
about 45 minutes into the interview. On appeal, P.W.G. adopts the district court's
estimate. For its part, the majority states that 28 minutes into the interview "P.W.G.
disclosed that E.G. had tried to touch him while they were in bed together, but he told
E.G to stop. . . . At about 37 minutes into the interrogation, P.W.G. admitted that he had
asked E.G. to touch his penis in the bathtub because he wondered how it felt." Slip op. at
6-7. Substantial competent evidence does not support the time estimates of P.W.G.'s
admissions as determined by the district court.


       Based on my review of the times memorialized on the video recording,
corroborated by independent timing, P.W.G. first admitted to the sexual touching in the
bedroom and bathtub about 28 minutes after the interview began. About 34 minutes into
the interview, P.W.G. said that he participated in the mutual touching because he was just
"wondering" about it; and about 37 minutes into the interview, P.W.G. told Detective
Murphy that the younger brother's touching of his penis "felt weird" and it "got hard."
Also at this time, P.W.G. said he told his younger brother to "stop doing it" because he
"didn't think it was right." Later in the interview, P.W.G. added additional details. In
summary, based on the confirmed times shown on the video recording, the substantial
competent evidence proves: P.W.G. initially confessed to the sexual crimes only 28 to 37
minutes into the interview.

                                             25
       Ultimately, the district court concluded that this second factor is "not really
determining one way or the other." For its part, the majority states: "The duration of the
interrogation is not necessarily determinative of whether it was custodial." Slip op. at 12.
I disagree.


       Given that P.W.G. admitted to the sexual crimes only 28 to 37 minutes after the
beginning of the interview, I believe this factor favors a finding that, due to its short
duration, the interview was noncustodial. See State v. Deal, 271 Kan. 483, 498-99, 23
P.3d 840 (2001) [(Court found noncustodial interview when defendant questioned at the
police station for about three hours.)], overruled on other grounds by State v. Davis, 283
Kan. 569, 158 P.3d 317 (2006); State v. Jacques, 270 Kan. 173, 186-87, 14 P.3d 409
(2000) (Court found noncustodial interview when defendant taken to police station and
interviewed for about two-and-a-half hours.).


3. The number of police officers present.

       It is uncontroverted that only Detective Murphy was present at the interview. This
third factor caused the district court to observe that it "would point towards non-
custodial." My colleagues do not mention this factor as necessarily indicative of either a
voluntary interview or custodial interrogation.


       I agree with the district court that applying the third factor to this case tends to
show that Detective Murphy was conducting a noncustodial interview.


4. The conduct of the officers and the person subject to the interrogation.

       The district court determined that this fourth factor favored a finding that the
interview was custodial. Importantly, however, the district court focused on only one


                                              26
aspect of Detective Murphy's conduct: Miranda warnings were given. As the district
judge explained:


       "Well, the Miranda was given which points towards this being custodial and in a way this
       is, I think, kind of a damned if you do, damned if you don't factor. If it's determined to be
       custodial and you didn't give it, then you have a problem. If you give it, it makes it seem
       much more custodial."


       My colleagues do not address the district court's legal contention that a law
enforcement officer's recitation of Miranda rights necessarily shows that whatever
subsequent questions are posed are necessarily a product of a custodial interrogation. In
fact, this is a misstatement of law. As our court indicated in State v. Whitt, 46 Kan. App.
2d 570, 574, 264 P.3d 686 (2011):


               "[T]he presence or absence of a Miranda warning does not, in itself, aid the
       district court's determination as to whether this was a custodial interrogation. Giving or
       not giving Miranda warnings does not answer the question of whether an interrogation is
       custodial. Miranda warnings might be given in noncustodial situations, and they might
       not be given in custodial situations. In both cases, the warnings themselves do not
       classify the type of encounter."


       Although the district judge did not otherwise address Detective Murphy's conduct
during the interview relative to this factor, the judge later provided findings emphasizing
the fair-minded manner in which Detective Murphy presented Miranda warnings to
P.W.G. and his father. In my view, these findings should also have been considered in the
totality of circumstances to show the fairness of Detective Murphy's interview:


               "[S]o then the next issue, I think, is was there an adequate presentation by the
       detective of the Miranda warning. Well, I think the taped interview is very important here
       in making this determination. Rather than just reading what took place, the Court was
       able to see and hear. You know, the detective took considerable time in explaining each

                                                    27
       one of the rights, paused after reading each one, gave [P.W.G.] and his father time to talk.
       Now, it seems they didn't talk, but the detective did give plenty of time for a discussion
       had they wanted it, and he asked them many times if either one of them had questions, if
       they understood. He asked—he said many times you don't have to talk, you're free to
       leave. . . . And I believe that the detective's presentation in this case was appropriate and
       adequate and gave an opportunity for there to be questions or explanation if necessary."


       My colleagues acknowledge the State's argument that "Sergeant Murphy did not
raise his voice; that [Father] was present with P.W.G. during the interrogation; and that
there is no evidence that either [Father] or P.W.G. suffered from any mental, intellectual,
or emotional problems that might have affected their perception of whether they could
terminate the questioning." Slip op. at 12. But the majority concludes that Detective
Murphy's comments and questions during the interview show that he was questioning
P.W.G. as a suspect. Slip op. at 12-13. This factor is separately addressed later.


       The video recording convinces me that Detective Murphy conducted the interview
in a polite, respectful, and informal manner. He was soft-spoken and easy-going. During
the interview Detective Murphy did not threaten or intimidate P.W.G. or his father.
Rather, the detective persuaded P.W.G. to tell the truth by emphasizing that he
understood that P.W.G. "was a kid" and that neither he nor his father or mother were
"mad at you" or believed that P.W.G. was "a bad person." Detective Murphy emphasized
that E.G. was not hurt as a result of the touching. The detective told P.W.G., "My biggest
concern is you." In short, Detective Murphy's questioning was low-key, fair, and
affirming towards P.W.G.


       Additionally, Detective Murphy allowed P.W.G.'s father to interrupt with
questions or comments to P.W.G. or the detective. P.W.G. was attentive during the
interview and, although reluctant on occasion to answer certain questions, responded
appropriately to the detective's inquiries. P.W.G. was polite and respectful to Detective
Murphy and his father. P.W.G. did not raise his voice, become angry, or refuse to answer
                                                    28
any questions. The only showing of emotion occurred about 38 minutes into the interview
when, having admitted to his wrongdoing, P.W.G. wiped away some tears. During the
break, about 40 minutes into the interview, Detective Murphy offered to get P.W.G. a
soft drink or water, and then left the room for a few minutes which allowed P.W.G. and
his father to converse alone. Finally, there is no evidence, or even an allegation, that the
detective lied or deceived either P.W.G. or his father about the facts or evidence he had
discovered during his investigation.


       In summary, the district court erred as a matter of law in concluding that, because
Miranda rights were given, the interview was necessarily custodial. On the contrary,
substantial competent evidence supports the legal conclusion that Detective Murphy's
conduct of the interview and P.W.G.'s behavior during the interview showed that it was
noncustodial.


5. The presence or absence of actual physical restraint or its functional equivalent such
as drawn firearms or a stationed guard.

       With regard to the fifth factor, the district judge specifically considered:


                "The presence of physical restraints such as weapons or something like that: No,
       there weren't. There was—it was in a room with—didn't have bars on the window, the
       door wasn't locked. Detective was in plain clothes, and according to what I could see in
       the video and the officer's testimony that he didn't believe there was a weapon showing."


       Moreover, there was no evidence that P.W.G. was restrained in any way or that a
stationed guard was present. Importantly, the district court did not list this fifth factor as
indicative of a custodial interview. My colleagues concede that "P.W.G. was never
restrained, and it does not appear from the video that Sergeant Murphy was armed during
the interrogation." Slip op. at 14.



                                                   29
       I agree with the district court that applying this factor to the case facts suggests
that the interview was not custodial.


6. Whether the person was being questioned as a suspect or a witness.

       The district court found that P.W.G. was "being questioned as a suspect." The
majority agrees with that finding. The video recording shows Detective Murphy telling
P.W.G. and his father at the outset of the interview that, based on the information known
to the detective, P.W.G. "can be considered a suspect."


       I agree with the district court and my colleagues that at the time of the interview
Detective Murphy considered P.W.G. a suspect in the sexual crimes reported by E.G.
This sixth factor suggests the interview was custodial in nature. However, this particular
factor is not determinative of the custodial interrogation issue. Whitt, 46 Kan. App. 2d at
575.


7. Whether the person being questioned was escorted by the police to the interrogation
location or arrived under his or her own power.

       In addressing this factor the district judge found, "Well, here his father brought
him. Now, so really, [P.W.G.] was in someone's custody. It may not have been the
custody of the police but the custody of his father . . . . So, you know, clearly I think he
was in the custody of his father." (Emphasis added.) According to the district court, this
seventh factor supported a finding of a custodial interrogation.


       My colleagues also acknowledge that P.W.G. was not escorted by the police to the
interview, but they assert he was not there of his own free will because his father drove
him to the police station. At the outset, as framed by our Supreme Court, this factor
specifically relates to whether an individual is escorted by the police to the interrogation
location. The evidence is uncontroverted that P.W.G. was not transported by the police.

                                              30
The majority states a concern, however, that P.W.G. was not there "under his own free
will," but that assertion is without any factual basis. Slip op. at 14. On the contrary, the
district court found, "Now, in our case [Father] did not coerce, he didn't force and he
didn't threaten [P.W.G.] in any way. He was completely reasonable." My review of the
record reveals no evidence to suggest that P.W.G.'s father exercised any coercion or
deprived P.W.G. of his freedom to choose whether he was agreeable to the interview.
Moreover, that assertion is not relevant to this seventh factor.


       There is substantial competent evidence to support the factual finding by the
district court and the majority that the police did not escort P.W.G. to the police station.
The legal conclusion by the district court and my colleagues that this factor weighs in
favor of a custodial interrogation, therefore, is both factually and legally mistaken.
Obviously, given his age, P.W.G. was not legally able to drive himself to the interview.
The fact that P.W.G.'s father drove him to the interview—which is the typical way that
13-year-old children are transported to a destination—indicates that P.W.G. arrived
"under his own power" and not by police escort. Applying the seventh factor to this case
shows the interview was not custodial.


8. The result of the interrogation, for instance, whether the person was allowed to leave,
was detained further, or was arrested after the interrogation.

       With regard to this eighth factor, the district judge found that P.W.G.


       "wasn't arrested, but it was really pretty clear to me during that interview that the
       detective had a plan that at some point [P.W.G.] was going to either be arrested or
       detained and charged because the detective said several times that he believed the six-
       year-old's account of what had happened."


Based on this finding, the district court found this factor indicated the interview was
custodial because "the detective had a plan to arrest/charge the juvenile at some point

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after the interrogation." For their part, my colleagues do not address the district court's
findings but simply concede that P.W.G. "was not arrested or detained afterwards." Slip
op. at 14.


       My review of the record finds no evidence to support the district court's factual
finding that Detective Murphy had a plan to detain or arrest P.W.G. after the
interrogation, or at any time for that matter. On the other hand, the evidence is to the
contrary. Detective Murphy advised P.W.G. and his father that they could leave the
interview room at any time, and at the conclusion of the interview the detective was
going to complete a report. Even the district court conceded the "detective said several
times that there was not going to be an arrest." In fact, at the conclusion of the interview,
P.W.G. was not detained further, was allowed to leave, and was not arrested. Moreover,
P.W.G. was never arrested, but weeks later received a summons and complaint in the
mail requesting his appearance in juvenile court.


       Based on the record evidence I agree with my colleagues that there was substantial
competent evidence that P.W.G. was not delayed, detained, or arrested following the
interview. The district court's legal conclusion, which was not predicated on any evidence
presented during the suppression hearing, is in error. Applying the eighth factor to this
case shows the interview was not custodial.


                                        CONCLUSION

       In summary, I agree with the district court and my colleagues that at the time of
the interview P.W.G. was a suspect. I also agree with the district court that because only
one officer interviewed P.W.G. and the juvenile was not restrained, these two factors
favor a finding of a noncustodial interview. I believe the district court's legal conclusion
that because Detective Murphy provided P.W.G. with Miranda warnings that the
interview was necessarily custodial is an error of law. Similarly, I find the legal

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conclusion by the district court and my colleagues that because P.W.G. was driven to the
interview by his father that it was the equivalent to being escorted by the police was legal
error. I also find no substantial competent evidence or legal basis to support the district
court's finding that Detective Murphy had a plan to detain or arrest P.W.G. after the
interview.


       On the other hand, having independently considered the eight factors relevant to
this issue, as discussed earlier, I would conclude that seven of the factors favor a finding
of a noncustodial interview and one factor suggests a finding of a custodial interrogation.
Having considered the totality of the circumstances in this case involving the 13-year-old
juvenile, I am convinced that a reasonable person of the same or similar age would have
felt free to terminate the interview and leave. See Warrior, 294 Kan. at 497.


       Although my colleagues concede that with regard to the custodial interrogation
question this is "a close case," I disagree. Slip op. at 14. The district court supported its
suppression ruling by making several mistaken factual findings and erroneous legal
conclusions. Correctly applying the eight factors to the proven facts and circumstances
regarding Detective Murphy's questioning of P.W.G. convinces me that the interview was
noncustodial. Moreover, because the interview was noncustodial—although Miranda
warnings were provided to the juvenile and his father, both of them waived the Miranda
rights, and P.W.G. agreed to talk with the detective—this procedure was not required by
the Fifth Amendment or K.S.A. 2017 Supp. 38-2333(a) or (b). Accordingly, I would
reverse the district court's order suppressing P.W.G.'s admissions and remand for further
proceedings.




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