                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                    PUBLISH
                                                                       JUN 26 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellant,

v.
                                                      No. 97-2256
ERVING L. (a juvenile),

             Defendant-Appellee.




                 Appeal from the United States District Court
                       for the District of New Mexico
                          (D.C. No. CR-96-747-MV)


Richard A. Friedman, Attorney, Appellate Section, Criminal Division,
Department of Justice, Washington, D.C. (John J. Kelly, United States Attorney,
Sharon R. Kimball, Assistant United States Attorney, District of New Mexico,
with him on the brief) for Appellant.

Ann Steinmetz, Federal Public Defender, Albuquerque, New Mexico, (Judith A.
Rosenstein, Assistant Federal Public Defender, Albuquerque, New Mexico, on the
brief), for Appellee.


Before ANDERSON, McWILLIAMS, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
                              I. INTRODUCTION

      The United States brings this interlocutory appeal challenging a

suppression order entered by the United States District Court for the District of

New Mexico. The district court suppressed all inculpatory statements made by

E.L., a thirteen-year-old Navajo juvenile, in response to questioning by law

enforcement officers. The district court suppressed the statements on two

grounds: (1) the officers elicited the statements in violation of Miranda v.

Arizona, 384 U.S. 436 (1966); and (2) E.L.’s statements were not voluntarily

made. Exercising jurisdiction pursuant to 18 U.S.C. § 3731, this court concludes

that a reasonable thirteen-year-old in E.L.’s position would not have believed he

was in custody and that the actions of the officers were not coercive so as to

render E.L.’s confession involuntary. Accordingly, we reverse the district

court’s order of suppression and remand the case to the district court for further

proceedings consistent with this opinion.



                               II. BACKGROUND

      A. The Interview

      On appeal from an order of suppression, this court accepts the district

court’s factual findings unless clearly erroneous and views the evidence in the

light most favorable to the prevailing party. See United States v. Maden, 64 F.3d


                                         -2-
1505, 1508 (10th Cir. 1995). Viewed from that perspective, the facts surrounding

E.L.’s statements to the officers are as follows.

        In early July 1996, Navajo Nation criminal investigator Larry Etsitty

received a report that an eleven-year-old girl had been sexually assaulted by her

cousin, the defendant E.L. After receiving the report, Agent Etsitty talked with

the girl, her mother, and hospital personnel. Based on these interviews, Agent

Etsitty decided to interview E.L.

        On July 18, 1996, Agent Etsitty and FBI Special Agent John Tanberg went

to E.L.’s home to interview him. The officers arrived at the family’s mobile

home in plain clothes and in an unmarked car at about 3:00 p.m. They were

greeted by E.L.’s father, who previously had been alerted of their purpose. The

officers identified themselves and were invited into the home by the father. They

were introduced to E.L.’s mother and to E.L. and all five sat down in the living

room.

        The officers explained they had received an accusation that E.L. sexually

abused his cousin and asked for permission to talk to E.L. E.L.’s parents gave the

requested permission. Initially, E.L. did not respond to the officers’ questions.

Instead, he sat in silence and began to cry. E.L.’s parents spoke to him in Navajo

and told him that he should talk to the investigators. E.L.’s mother told him it

would help to clear his conscience.


                                          -3-
      Agent Tanberg then explained to E.L. in English why the officers were

there and that they wanted to hear his version of the story. E.L. did not respond.

When Agent Tanberg handed E.L. a note pad and a pen and asked if he could

write down his thoughts, E.L. just held the pad and pen in silence.

      In response to E.L.’s continued silence, Agent Tanberg explained to E.L.

that he was not in custody and that he was not going to be arrested after their

discussion no matter what he told them. Agent Tanberg then asked E.L. to read

aloud in English from an advice-of-rights form 1 used by the FBI. After he

finished reading the form aloud, the agents asked E.L. if there was anything in the

form which he did not understand. He asked for an explanation of the word

“advice” in the phrase, “You have the right to talk to a lawyer for advice before

we ask you any questions.” He also asked for an explanation of the word

“coercion” in the phrase, “[N]o pressure or coercion of any kind has been used

against me.” Agent Tanberg explained the terms in English and Agent Etsitty,

speaking in Navajo, went over the rights in general and the two terms in

particular. Agent Etsitty used the Navajo word for “advice” to explain the

meaning of that term, and E.L. said he understood. Agent Etsitty explained the

idea of a lack of coercion by using the Navajo word for “not being forced.” E.L.


      1
       The United States’ unopposed motion to supplement the record on appeal
with the advice-of-rights form as well as three other exhibits introduced at the
suppression hearing is hereby GRANTED.

                                         -4-
initialed those two words on the form to signify that he understood them. E.L.’s

parents were asked if they had any questions about the rights. They did not. E.L.

was asked if he understood his rights. He said that he did and he signed the

waiver portion of the advice-of-rights form, with his parents signing as witnesses.

      Agent Etsitty then explained that it was very important for E.L. to tell the

truth and that the officers wanted to hear his side of the story. E.L. told them

that, on the day in question, he and two of his cousins, a boy and a girl, were at

their grandmother’s house. E.L. recounted that the children played at a sand pit

for several hours, that he prepared some rice for them to eat, that they resumed

their play, and that they then went to his uncle’s house.

      When E.L. arrived at the point in his rendition placing him alone with his

female cousin, he stated that he did not want to talk to the officers anymore and

began to cry again. At that point, E.L.’s mother got up and walked over to him.

She told him in Navajo that he should continue to cooperate with the investigation

and that it would help him to clear his conscience. She further stated that if he

did speak, “whatever [was] ailing him inside would come out” and he would feel

better. She reassured him that it was “okay” for him to talk and cooperate with

the investigators. The officers did not participate in the conversation or

encourage the mother’s action in any way.




                                          -5-
       E.L.’s mother then asked if he would feel more comfortable talking to the

officers if she left the room. After E.L. responded in the affirmative, both parents

left the room. Agent Tanberg moved next to E.L. in the place previously

occupied by the mother. At that time, as E.L. recalled at the suppression hearing,

he was “scared” and “wanted to go.” He could not, however, identify what scared

him.

       Agent Etsitty asked E.L. to continue where he had left off. The officers did

not further advise him of his rights or question him about his desire to talk with

them. In response to Agent Etsitty’s statement that he should continue, E.L. said

that he and his two cousins were watching television when the other boy left to

use an outhouse some distance away. E.L. told the officers that during the time

they were alone, he stood behind the girl and touched her breasts, worked his

hands down between her legs, and put his finger into her vagina. Although E.L.

continued to cry as he related these events, he did not ask to stop the interview.

The discussion with E.L. out of the presence of his parents lasted about five to ten

minutes; the officers’ visit to the home lasted no more than one hour.

       B. The District Court Decision

       The district court ruled from the bench that E.L.’s statements to the officers

were not voluntarily and knowingly made and could not, therefore, be used

against him at trial. In reaching this conclusion, the district court recited at


                                          -6-
length E.L.’s limited intellectual capacity and age. In particular, the district court

noted that E.L.’s educational records placed him in a special education category

of “borderline IQ.” Furthermore, the district court concluded from observations

in court that E.L. had only a minimal ability to understand what was occurring

during the interview. Finally, the district court noted that E.L. was only thirteen

at the time of the alleged incident and interview. Based on these factors, the

district court concluded that E.L.’s “age combined with his academic deficiencies

and his borderline IQ and my observations of his testimony here today persuade

me that he simply did not understand his constitutional rights.”

      At the heart of the district court’s conclusion that E.L.’s statements were

not voluntarily made, however, is its conclusion that, without regard to whether

E.L. was in custody, the officers were obligated to honor his indications that he

wished to remain silent. The district court stated:

      I think the issue that is novel is whether, if the Court were to find
      that the setting was not a custodial setting, what happens when a
      defendant invokes a right to remain silent? What obligation is there?
      The government’s position is that there is an obligation to cease
      questioning, but if questioning -- to cease questioning momentarily
      and not completely, and that’s where I disagree. I think that once
      there is an invocation of one’s right to remain silent, that the officer
      cannot simply rely, as was done here, on a mom’s encouraging her
      son to speak, but has to speak to the defendant himself to ascertain at
      that point whether the defendant wishes to change his mind and to
      continue speaking to the officer. That’s what was not done here, and
      quite frankly, that the area that I did some research on and could find
      no guidance.


                                          -7-
             I think that what I find so persuasive in this case is that [E.L.]
      said several times that he did not want to speak, and he was crying,
      and he is a child, and at that point, you know, the right to remain
      silent was unequivocally invoked, and we have Agent Etsitty
      basically saying, continue. That may be okay, it may not be. I mean,
      I wish there was some guidance, but my decision is that, in that
      context, [E.L.] did not voluntarily make a statement at that point, did
      not voluntarily waive his rights, did not understand them. We have a
      situation which he invokes them and they are not being respected, so
      there’s no reason for him to believe that if he will continue to assert
      and invoke his constitutional rights that they will be honored.

      Although the district court demonstrated some reluctance to rule on the

issue, after some prodding from the United States, the district court also ruled that

E.L. was in “custody” for Miranda purposes during the interview. Although the

district court’s findings related to the “in custody” determination are limited, it

did state the custody “issue is a very close one for me. I think, under the context

of this case, that [E.L.] perceived that he was -- that it was a custodial setting, and

that -- and there were Miranda Rights that were given to [E.L.] by law

enforcement.” Upon further prompting by the United States, the district court

specifically found that a reasonable person in E.L.’s position would have thought

he was in custody. 2


      2
        It is undisputed that the officers here did administer Miranda warnings to
E.L. Nevertheless, the district court specifically found that E.L.’s waiver of his
rights under Miranda was not knowingly, intelligently, and voluntarily
undertaken. The United States does not appeal this ruling. Instead, the heart of
the United States’ position on appeal is that E.L. was never in custody. Thus,
according to the United States, E.L. was not entitled to Miranda warnings and a
                                                                       (continued...)

                                          -8-
                           III. CUSTODIAL STATUS

      A. Standard of Review

      In Cordoba v. Hanrahan, 910 F.2d 691, 693 (10th Cir. 1990), this court

held that a district court’s ultimate “in custody” determination for Miranda

purposes would be reviewed for clear error. The United States notes, however,

that the Supreme Court’s recent decisions in Thompson v. Keohane, 116 S. Ct.

457 (1995), and Ornelas v. United States, 116 S. Ct. 1657 (1996), call Cordoba

into question. Accordingly, the United States invites this court to reconsider the

proper standard of review for a district court’s ultimate “in custody”

determination. See In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (holding that a

panel of this court cannot overrule circuit precedent absent a superseding contrary

decision by the Supreme Court).

      In Thompson, the Supreme Court granted certiorari to consider whether the

presumption of correctness normally afforded by federal courts to state court

factual determinations under 28 U.S.C. § 2254(d) 3 applied to a state court “in

custody” determination. See Thompson, 116 S. Ct. at 462. The Court held that a

      2
       (...continued)
knowing and intelligent waiver of those warnings was not necessary.
Accordingly, the only Miranda issue on appeal in this case is whether E.L. was in
custody at the time of the interview.
      3
       The provisions of § 2254(d) at issue in Thompson have been substantially
revised by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214.

                                        -9-
state court’s ultimate “in custody” determination was not entitled to a

presumption of correctness because the issue was legal rather than factual in

nature. Id. at 465-67. According to the Court,

              The ultimate “in custody” determination for Miranda purposes,
      we are persuaded, fits within the latter class of cases [involving
      questions of law]. Two discrete inquiries are essential to the
      determination: first, what were the circumstances surrounding the
      interrogation; and second, given those circumstances, would a
      reasonable person have felt he or she was not at liberty to terminate
      the interrogation and leave. Once the scene is set and the players’
      lines and actions are reconstructed, the court must apply an objective
      test to resolve “the ultimate inquiry”: “[was] there a ‘formal arrest or
      restraint on freedom of movement’ of the degree associated with
      formal arrest.” The first inquiry, all agree, is distinctly factual.
      State-court findings on these scene- and action-setting questions
      attract a presumption of correctness under 28 U.S.C. § 2254(d). The
      second inquiry, however, calls for application of the controlling legal
      standard to the historical facts. This ultimate determination, we hold,
      presents a “mixed question of law and fact” qualifying for
      independent review.

Id. (citations and footnote omitted).

      The Court went on to note that a “trial court’s superior capacity to resolve

credibility issues is not dispositive of the ‘in custody’ inquiry” because “the

crucial question entails an evaluation made after determination of those

circumstances: if encountered by a ‘reasonable person,’ would the identified

circumstances add up to custody as defined by Miranda?” Id. at 465, 466.

Finally, unlike questions of juror bias and the defendant’s competency in which a

trial court makes an “individual-specific” decision “unlikely to have precedential


                                         -10-
value,” the Court noted that “‘in custody’ determinations do guide future

decisions.” Id. at 466. Accordingly, once the historical circumstances are

established, a state trial court is in no different position than a federal district

court in determining whether a defendant is in custody for Miranda purposes. See

id. Applying the same reasoning and analysis, the federal district court

determination, like the state court decision, then, should be reviewed de novo.

      E.L. argues that Thompson is distinguishable on the grounds that it dealt

with the interaction between state and federal courts in the habeas corpus setting

rather than the degree of deference this court must afford, on direct appeal, to a

federal district court’s “in custody” determination. Thompson, however, cannot

be minimized by pigeonholing it as a procedural ruling for federal habeas review

of state court decisions. A careful reading of the opinion reveals the basis of

Thompson is that resolution of custody is ultimately a mixed question of fact and

law to be reviewed de novo. See id. at 465-66; see also Derrick v. Peterson, 924

F.2d 813, 818 (9th Cir. 1991) (“In both direct and collateral review, the question

whether the trial court’s determination is factual or legal is the same.”).

      In Ornelas, the Supreme Court held that Courts of Appeals must review de

novo a district court’s determinations of reasonable suspicion and probable cause.

See Ornelas, 116 S. Ct. at 1662. As in custody determinations, the Court noted

that determinations of reasonable suspicion and probable case entail two discrete


                                           -11-
inquiries: what events “occurred leading up to the stop or search, and then the

decision whether these historical facts, viewed from the standpoint of an

objectively reasonable police officer, amount to reasonable suspicion or probable

cause.” Id. at 1661-62. The court further characterized these discrete inquiries as

follows:

      The first part of the analysis involves only a determination of
      historical facts, but the second is a mixed question of law and fact:
      “[T]he historical facts are admitted or established, the rule of law is
      undisputed, and the issue is whether the facts satisfy the [relevant]
      statutory [or constitutional] standard, or to put it another way,
      whether the rule of law as applied to the established facts is or is not
      violated.”

Id. at 1662 (quoting Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982)).

      The Court identified three important policies underlying its conclusion that

the Courts of Appeals should utilize a de novo standard when reviewing the

application of law to established historical fact in the context of a reasonable

suspicion or probable cause determination. First, “[a] policy of sweeping

deference would permit, ‘[i]n the absence of any significant difference in the

facts,’ ‘the Fourth Amendment’s incidence [to] tur[n] on whether different trial

judges draw general conclusions that the facts are sufficient or insufficient to

constitute probable cause.’ Such varied results would be inconsistent with the

idea of a unitary system of law.” Id. (quoting Brinegar v. United States, 338 U.S.

160, 171 (1949)). Second, the court noted that legal rules “acquire content only


                                         -12-
through application.” Id. Accordingly, “[i]ndependent review is . . . necessary if

appellate courts are to maintain control of, and to clarify the legal principles.” Id.

Finally, “de novo review tends to unify precedent and will come closer to

providing law enforcement officers with a defined” set of rules to follow. Id. It

is these same policies, although more subtly stated, which informed the Thompson

decision that an “in custody” determination is a legal determination not entitled to

a presumption of correctness on habeas corpus review. See Thompson, 116 S. Ct.

at 465-66.

      Taken together, Thompson and Ornelas establish that when reviewing a

district court’s application of law to established historical fact, as in the “in

custody” determination at issue here, Courts of Appeals must employ a de novo

standard. See United States v. Yusuff, 96 F.3d 982, 987-88 (7th Cir. 1996)

(holding that Ornelas and Thompson mandate that a district court’s “in custody”

determination be reviewed de novo); see also United States v. Fernandez-Ventura,

132 F.3d 844, 846 (1st Cir. 1998) (citing Thompson and Ornelas for proposition

that “in custody” determination is “mixed question of fact and law, subject to de

novo review” in federal prosecutions); United States v. Howard, 115 F.3d 1151,

1154 (4th Cir. 1997) (citing Ornelas for same proposition). Because the standard

of review set forth by the court in Cordoba is contrary to the Supreme Court’s

superseding decisions in Thompson and Ornelas, Cordoba is not binding on this


                                          -13-
panel. Smith, 10 F.3d at 724. Accordingly, we review the district court’s

ultimate “in custody” determination de novo, with proper deference to the district

court’s findings of historical fact and credibility determinations. Ornelas, 116 S.

Ct. at 1663; Thompson, 116 S. Ct. at 464.

      B. Analysis

      It is well established that “police officers are not required to administer

Miranda warnings to everyone whom they question.” Oregon v. Mathiason, 429

U.S. 492, 495 (1977). Instead, the warnings mandated by Miranda apply only to

“statements obtained from an individual who is subjected to custodial police

interrogation.” Miranda, 384 U.S. at 439. The relevant question is whether E.L.

was in custody for Miranda purposes during the interview at E.L.’s home.

      In Berkemer v. McCarty, 468 U.S. 420 (1984), the Supreme Court held that

a suspect is not “in custody” for purposes of Miranda unless his “freedom of

action is curtailed to a ‘degree associated with formal arrest.’” Id. at 440 (quoting

California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). The proper

perspective for determining whether a suspect is in custody at the time of

questioning is whether “a reasonable [person] in the suspect’s position would

have understood his situation . . . as the functional equivalent of formal arrest.”

Id. at 442. Berkemer’s “reasonable person” does not have a guilty state of mind

and does not have peculiar mental or emotional conditions that are not apparent to


                                         -14-
the questioning officer. See United States v. Sanchez, 89 F.3d 715, 718 (10th Cir.

1996) (noting that law’s reasonable person is innocent); United States v. Little, 18

F.3d 1499, 1505 (10th Cir. 1994) (en banc) (“[T]he particular personal traits or

subjective state of mind of the defendant are irrelevant to the objective

‘reasonable person’ test . . . ‘other than to the extent that they may have been

known to the officer and influenced his conduct.’” (citation omitted)).

      Before this court proceeds to the application of that standard to the

historical facts in this case, it is necessary to make one further observation. In

evaluating whether E.L. was in custody, only the restraint imposed by the officers

is a relevant consideration. “[T]he Fifth Amendment privilege is not concerned

‘with moral and psychological pressures to confess emanating from sources other

than official coercion.’” Colorado v. Connelly, 479 U.S. 157, 170 (1986)

(quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)); see also United States v.

Glover, 104 F.3d 1570, 1580 (10th Cir. 1997); United States v. Chalan, 812 F.2d

1302, 1307 (10th Cir 1987) (holding that Cochiti Pueblo Indian’s desire to attend

interview so as not to insult the Pueblo Governor did not convert interview into

custodial setting). Neither the district court’s findings nor record inferences

suggest that E.L.’s parents were acting on behalf of the officers or in any capacity

other than a parental one. Consequently, whatever assumed moral or




                                         -15-
psychological pressures flowed from their encouragement of cooperation are

irrelevant to the analysis of whether E.L. was in custody.

      We conclude that the actions of the officers in this case would not cause a

reasonable person in E.L.’s position to believe that his liberty was restrained to

the degree associated with formal arrest. The atmosphere surrounding the

interrogation here was far from the type of “police-dominated” atmosphere

identified as custodial in Miranda. Miranda, 384 U.S. at 445, 456. The officers

here called ahead and indicated that they wished to speak to E.L. about a possible

sexual abuse. The plain-clothed officers arrived at the residence in an unmarked

car at approximately 3:00 in the afternoon. The officers were welcomed onto the

property by E.L.’s father and escorted into the home by both the father and

mother. The parents introduced E.L. to the officers and the officers, parents, and

E.L. all proceeded to the living room for the interview. See United States v.

Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994) (“‘[C]ourts are much less likely to

find the circumstances custodial when the interrogation occurs in familiar or at

least neutral surroundings,’ such as the suspect’s home.” (quoting 1 W. LaFave,

Criminal Procedure § 6.6(e), at 496 (1984 & Supp. 1991)). The record indicates,

and the district court did not make a contrary finding, that the officers were well-

mannered and courteous and that they did not adopt a threatening posture or make

a show of physical force.


                                         -16-
        The officers then explained the purpose for the visit, 4 informed E.L. that he

was not under arrest and would not be arrested no matter what he said, and

specifically asked the parents’ and E.L.’s permission to conduct an interview. In

fact, the officers spent several minutes explaining E.L.’s Miranda rights in both

English and Navajo. E.L. signed a waiver of his rights and the parents signed the

waiver form as witnesses. 5 At least one of the parents remained in the room

throughout much of the interview and, when E.L. grew silent or specifically

indicated that he wanted to remain silent, occasionally encouraged E.L. to

cooperate with the officers to “clear his conscience.” E.L.’s parents left the room

only after E.L.’s mother again encouraged E.L. to unburden his conscience and

E.L. agreed that he could talk more freely about the incident if his mother left the

room.



       The mere fact that the officers were focusing on E.L. as the primary
        4

suspect in the sexual abuse case does not transform the interview into a custodial
interrogation. United States v. Chalan, 812 F.2d 1302, 1306 (10th Cir. 1987).

        As this court recently noted, “giving a Miranda warning does not, in and
        5

of itself, convert an otherwise non-custodial interview into a custodial
interrogation.” United States v. Bautista, No. 97-2222, 1998 WL 261406, at *7
(10th Cir. May 22, 1998). The giving of those warnings is, however, a factor to
be considered by this court. See id. In the context of this case, we do not believe
that the provision of Miranda warnings to E.L. served to transform a noncustodial
setting into a custodial interrogation. If anything, the warnings here merely
served to inform E.L. that the officers could not and would not force him to
answer their questions. See United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir.
1993) (noting that extent to which defendant is informed he is free to refrain from
answering questions “will often define[] the custodial setting”).

                                          -17-
      Given these facts, a reasonable juvenile in E.L.’s position would not have

believed that the officers had curtailed his freedom of movement to a degree

associated with formal arrest. See Berkemer, 468 U.S. at 442. The environment

was not police-dominated, the officers were courteous and non-threatening, E.L.

was specifically informed that he had the right to refuse to answer the officers’

questions, and E.L. and his parents were told that E.L. would not be arrested

regardless what he said. Nevertheless, E.L. argues that the district court’s finding

that he was in custody for Miranda purposes must be affirmed because “[a] child

with [E.L.’s] characteristics would reasonably feel unable to leave or to request

that officers leave under the circumstances in which [E.L.] found himself.” This

argument represents a basic misunderstanding of the nature of the inquiry under

Berkemer. Although the district court did make extensive findings with regard to

E.L.’s limited capacity to understand and other particular personality traits, those

particular traits are not relevant under the objective standard applicable here

unless the officers were aware of E.L.’s particular traits and those traits

influenced the actions of the officers. See Little, 18 F.3d at 1505. Because the

district court did not find that the officers were aware of E.L.’s particular traits or

that the officers adjusted their tactics in response to E.L.’s idiosyncracies and

because neither of those findings can be fairly inferred from the record, E.L.’s




                                         -18-
idiosyncracies are not relevant to this court’s determination of whether he was in

custody for Miranda purposes.

      Finally, to the extent that E.L.’s brief can be read as inviting this court to

reach out to create a dual track for “in custody” determinations by making such

determinations objective when the suspect is an adult but subjective when the

suspect is a child, we decline the invitation. Not only is it unwise to place such a

burden on law enforcement, but such an approach is directly contrary to the

approach adopted by the Supreme Court. See Berkemer, 468 U.S. at 442 n.35

(noting that a reasonable person test is “appropriate because, unlike a subjective

test, ‘it is not solely dependent either on the self-serving declarations of the police

officers or the defendant nor does it place upon the police the burden of

anticipating the frailties or idiosyncracies of every person whom they question’”

(quoting People v. P., 233 N.E.2d 255, 260 (N.Y. 1967)).

      Because a reasonable person in E.L.’s position would not have believed

that he was subjected to the functional equivalent of formal arrest, this court

reverses the district court’s conclusion that E.L. was in custody for Miranda

purposes.




                                          -19-
                              IV. THE CONFESSION

        A. Standard of Review

        The United States also challenges the district court’s conclusion that E.L.’s

statements were not voluntarily given. “When a defendant challenges the use of

[his] statements on the ground that they were involuntary, it is the duty of this

court ‘to examine the entire record and make an independent determination of the

ultimate issue of voluntariness.’” Glover, 104 F.3d at 1579 (quoting Davis v.

North Carolina, 384 U.S. 737, 741-42 (1966)). Nevertheless, the district court’s

subsidiary factual determinations are subject to review for clear error. See id. at

1580.

        B. Analysis

        In evaluating the voluntariness of a confession, this court considers

“whether, under the totality of the circumstances, the challenged confession was

obtained in a manner compatible with the requirements of the Constitution.”

Miller v. Fenton, 474 U.S. 104, 112 (1985). The test is whether, considering the

totality of the circumstances, the government obtained the statements by physical

or psychological coercion or by improper inducement so that the suspect’s will

was overborne. See Glover, 104 F.3d at 1579. In considering whether a

particular confession is coerced, this court considers the following factors: “(1)

the age, intelligence, and education of the defendant; (2) the length of [any]


                                         -20-
detention; (3) the length and nature of the questioning; (4) whether the defendant

was advised of [his or] her constitutional rights; and (5) whether the defendant

was subjected to physical punishment.” Id.

      The totality of the circumstances test used to determine the voluntariness of

a confession was clarified and refined by the Supreme Court in Connelly. In

Connelly, the Court held that “coercive police activity is a necessary predicate to

the finding that a confession is not ‘voluntary’ within the meaning of the Due

Process Clause of the Fourteenth Amendment.” Connelly, 479 U.S. at 167. The

Court went on to emphasize that in the confession cases it had decided over the

previous fifty years, the “crucial element” had been the presence of “police

overreaching.” Id. at 163. Accordingly, it is clear after Connelly that a

confession is only involuntary under the Fourteenth Amendment if the police use

coercive activity to undermine the suspect’s ability to exercise his free will.

      As detailed above, the district court made detailed findings regarding E.L.’s

age and personal characteristics and ultimately concluded that E.L. was

particularly susceptible to police coercion. The district court further found that

E.L. was distraught throughout the interview and did not fully understand the

nature of his constitutional rights. Although these findings are troubling, they are

not determinative. As aptly noted by the Eighth Circuit, “Connelly makes it clear

that . . . personal characteristics of the defendant are constitutionally irrelevant


                                          -21-
absent proof of coercion.” United States v. Rohrbach, 813 F.2d 142, 144 (8th Cir.

1987) (internal quotations omitted); see also Derrick v. Peterson, 924 F.2d 813,

818 (9th Cir. 1991) (citing Rohrbach). Thus, E.L.’s age, mental capacity, and

personal idiosyncracies are relevant only if this court first concludes that the

officers’ conduct was coercive. See Derrick, 924 F.2d at 818.

      To satisfy this required element of police coercion, E.L. relies on the

district court finding that after E.L. told the officers several times that he did not

want to speak, they proceeded to question him further. With this finding in mind,

the district court concluded that “there’s no reason for [E.L.] to believe that if he

will continue to assert and invoke his constitutional rights that they will be

honored.” In light of this finding, E.L. asserts that it was “[t]he officers’ failure

to honor [E.L.’s] attempt to stop questioning [that] overbore his will and

exploited his extreme vulnerability.” Upon review of the totality of the

circumstances, we conclude that the officers’ actions in this particular case were

not coercive and, to the extent that E.L.’s free will was overcome, it was the

actions of E.L.’s parents that led to the confession. See id. at 818-19 (holding

that whether actions of law enforcement were coercive is part of the totality of the

circumstances subject to de novo review).

      Three witnesses testified at the suppression hearing: E.L., E.L.’s father, and

Agent Etsitty. As noted by the district court, the testimony of the three is


                                          -22-
consistent in all critical respects. As noted above, the officers were well-

mannered and courteous and did not adopt a threatening posture or make a show

of physical force. The interview was conducted in E.L.’s home with the express

permission of E.L.’s parents. The record demonstrates that E.L. was

uncommunicative during much of the interview and that his parents both

encouraged him to speak to the officers on several occasions. The record also

reveals that the officers patiently and methodically informed E.L. of his

constitutional rights in both Navajo and English and again informed him that he

was not in custody and would not be arrested. In light of the parental

encouragement and the assurances of the officers, E.L. began to recite some

background information about the events in question. As E.L. reached the critical

point in the recitation, he stopped and specifically informed the officers that he no

longer wished to speak to them. 6

      As to this critical juncture, Agent Etsitty testified as follows:

            Agent Etsitty: Then he stops there, and I believe he said that
      he didn’t want to talk to us anymore about it.


      6
        This court has reviewed the entire transcript of the suppression hearing
and notes that although E.L. was uncommunicative during much of the interview,
there is no testimony that E.L. specifically invoked his right to remain silent on
any other occasion either prior to or after this critical juncture. Accordingly, to
the extent the district court found that E.L. had specifically invoked his right to
silence on several occasions and that those invocations had been ignored by the
officers, that finding is without support in the record and is clearly erroneous.
See Exxon Corp v. Gann, 21 F.3d 1002, 1005 (10th Cir. 1994).

                                         -23-
       Counsel: Okay. Did you change your posture in any way after
he said he didn’t want to talk about it anymore?
       Agent Etsitty: No.
       Counsel: What did you do?
       Agent Etsitty: I just sat there, paused, looked down.
       Counsel: Then what happened?
       Agent Etsitty: The mother walked over to him and -- to tell
her son to continue to cooperate with the investigation and this will
help him clear his conscience, whatever is ailing him inside would
come out. He’ll feel better. This went on a couple minutes, to three
minutes. I just sat there and listened on.
       ....
       Counsel: And what was the mother’s demeanor and
expression?
       Agent Etsitty: She [was] reassuring him that it’s okay for him
to talk about it, it’s okay for him to cooperate with the investigation
and to tell his side of the story. It will make him feel better. She
emphasized that throughout from the beginning to the time she left.
       ....
       Counsel: During this two to three minutes that the mother was
talking to her son, what were you doing?
       Agent Etsitty: I sat, you know, right across from them where I
was at and listened.
       Counsel: Did you participate in any way in the conversation
between the mother and the son?
       Agent Etsitty: No.
       Counsel: Did you encourage the mother’s position or
discourage it?
       Agent Etsitty: No.
       ....
       Counsel: Okay. Then what happened?
       Agent Etsitty: The mother asked [E.L.] that -- if he would feel
comfortable him talking to us if she leaves the room.
       Counsel: Did he respond?
       Agent Etsitty: Yes, he did.
       Counsel: What did he say?
       Agent Etsitty: He said yes.
       Counsel: And then what happened?
       Agent Etsitty: She went off into the back of the room, you
know, through the kitchen, down the hall.

                                  -24-
       ....
       Counsel: Okay. How did you conduct the interview after the
mother left?
       Agent Etsitty: I, basically, told him to continue on where he
left off.
       Counsel: And did he?
       Agent Etsitty: Yes.

E.L.’s father testified about this critical juncture as follows:

      Counsel: Okay. When he was crying and the tears were
running down his face, did you hear your wife saying anything to
him?
      Father: Yes. I remember my wife asking my son to go ahead
and explain what the officers wanted and to not hold anything back.

Finally, E.L. testified as follows:

       Counsel: And you started to cry, and you said you didn’t want
to talk about it anymore; isn’t that right?
       E.L.: Yes.
       Counsel: And isn’t it true that your mom got up and came over
to you?
       E.L.: No. She was sitting beside me.
       ....
       Counsel: And didn’t she talk to you while you were crying?
       E.L.: Yes
       Counsel: And didn’t she tell you that you ought to keep
talking, that you ought to get it off your chest and clear your
conscience and tell them what happened and tell them the truth?
Didn’t your mom tell you all that?
       E.L.: Yeah.
       ....
       Counsel: What did you say when your mom said you ought to
talk to the officers?
       E.L.: I don’t remember.
       Counsel: You don’t remember. Didn’t your mom tell you it
would be better for you to get it off your chest?
       E.L.: I think so.
       ....

                                      -25-
             Counsel: Didn’t you stop crying because your mom talked to
      you and your mom patted you and comforted you and told you that
      you needed to get it off your chest and just tell the truth? Isn’t that
      the real reason you stopped crying?
             E.L.: Yes.
             Counsel: And you decided to go ahead and take your mom’s
      advice, didn’t you?
             E.L.: Yes.

      In light of this consistent testimony from the three critical witnesses, this

court concludes that none of the actions of the officers were coercive. After E.L.

invoked his right to silence, the officers ceased questioning. On her own

initiative, E.L.’s mother engaged him in conversation and indicated that he should

speak with the officers to clear his conscience. Furthermore, apparently realizing

that the subject could be a difficult one for a son to discuss in the presence of his

mother, she asked E.L. if he could talk more freely if she left the room. After the

mother left the room, the officers turned to E.L. and said “continue.” E.L. then

confessed to sexually abusing his cousin. Because none of the actions of the

officers were coercive, E.L.’s confession is voluntary for purposes of the Fifth

Amendment. See Connelly, 479 U.S. at 167 (“We hold that coercive police

activity is a necessary predicate to the finding that a confession is not ‘voluntary’

withing the meaning of the Due Process Clause . . . .”); Nickel v. Hannigan, 97

F.3d 403, 410 (10th Cir. 1996) (holding that even in cases where a defendant is

mentally impaired and the officer was aware of the impairment, a confession will



                                          -26-
be suppressed as involuntary only if the officers utilize coercive measures to take

advantage of the impairment). 7

      To the extent that E.L.’s will was overborne, it was overborne by the

actions of his parents rather than the actions of the officers. This type of non-

government pressure does not render a confession involuntary. See

Commonwealth v. Doe, No. 87-1108, 1988 WL 31904 at *4 (9th Cir. March 31,

1988) (unpublished disposition) (holding that responses to police questions

coerced by a parent are not involuntary as that term has been defined in

Connelly); see also supra page 16 (noting that neither the district court’s findings

nor record inferences suggest that E.L.’s parents were acting on behalf of the

officers or in any capacity other than a parental one).

      Finally, under the totality of the circumstances surrounding this case the

officers’ simple statement to E.L. to “continue” after his mother left the room

cannot be considered coercive. Nor were the officers under a constitutional

obligation to dissipate any coercion E.L. may have experienced as a result of the

desire of his mother that he cooperate with the officers. Accordingly, in light of

the conversation between E.L. and his mother in the officers’ presence and in

light of E.L.’s non-custodial status, the officers were not obligated to re-



      This court has also considered the factors set out in 18 U.S.C. 3501(b) and
      7

concludes that they are satisfied given the totality of the circumstances in this
case.

                                         -27-
Mirandize E.L. or engage him in further discussion regarding his willingness to

speak after his mother left the room.

      Because E.L.’s confession was not the product of police coercion, the

district court erred in excluding the confession as involuntary.



                               IV. CONCLUSION

      The district court’s suppression order is hereby REVERSED and the case

is REMANDED to the district court for further proceedings.




                                         -28-
