                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
        ___________

        No. 01-2990
        ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
   v.                                  *
                                       *
Denell N. Syslo,                       *
                                       *
            Appellant.                 *

        ___________                        Appeals from the United States
                                           District Court for the District
        No. 01-2992                        of Nebraska.
        ___________
                                               [TO BE PUBLISHED]
United States of America,              *
                                       *
            Appellee,                  *
                                       *
   v.                                  *
                                       *
Gregory T. Syslo,                      *
                                       *
            Appellant.                 *

                                 ___________

                         Submitted: December 10, 2001
                             Filed: September 6, 2002 - Corrected 9/16/02
                                 ___________
Before McMILLIAN and MURPHY, Circuit Judges, and BATTEY,1 District Judge.
                          ___________


PER CURIAM.

        Gregory T. Syslo and his wife Denell were charged with federal offenses in
connection with a bank burglary. Gregory was sentenced to 27 months after pleading
guilty to bank burglary in violation of 18 U.S.C. § 2113(a), and Denell was sentenced
to 21 months on her plea to money laundering in violation of 18 U.S.C. §§ 1957 and
2. Both moved to suppress statements they had made to Lincoln, Nebraska police.
A magistrate judge conducted a suppression hearing and made detailed findings of
fact, including some findings favorable to the Syslos, but concluded in light of all the
evidence that both suppression motions should be denied and so recommended. The
district court2 then conducted a careful de novo review, after which it adopted the
magistrate judge’s findings of fact and made additional findings. The court also
adopted the magistrate judge’s recommendation to deny Gregory’s suppression
motion, but it concluded that Denell’s motion should be granted in part. Both Syslos
contend on appeal that their statements should have been completely suppressed
because they were obtained in violation of their Fifth Amendment rights. We affirm.

                                           I.

      In a July 4, 2000 burglary at the National Bank of Commerce, $95,980.45 in
cash and $7,237.07 in stamps and cashier checks were taken from a teller bus.
Investigators suspected an inside job because wires to the bank’s video security

      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
      2
       The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
                                          -2-
system had been cut, bait money had been left behind, Magistrate Judge's Report,
Order and Recommendation (Mar. 27, 2001) [Mag. Rep.], at 1, and several master
keys were found at the scene, Suppression Hearing Transcript (Mar. 5, 2001)
[Hearing Tr.], at 5 (testimony of Inv. Clark). Investigator Randall Clark developed
a list of suspects from current and former employees of the bank. Mag. Rep. at 1.
Gregory Syslo was on the list because he had previously worked at the bank as a
security guard, but he was not initially questioned. Id.

        Sandra Myers, one of the other investigators in the police department, told
Clark on October 17, 2000 that the bank chief of security considered Gregory a good
suspect for the July burglary and was concerned that police had not interviewed him.
 Id. at 2. Clark ran a vehicle registration check on Gregory which revealed that in
August the Syslos had registered the purchase of two automobiles, a 2000 Cadillac
Escalade and a 1999 Pontiac Grand Am. Id. Clark called the Department of Motor
Vehicles and learned that the vehicles had been purchased in late July at a local
dealership and that there were no liens on either. Hearing Tr. at 7 (testimony of Inv.
Clark). Employees at the dealership informed Clark that the Syslos had paid for the
vehicles with approximately $49,000 in cash which they had taken from a box filled
with money. Mag. Rep. at 2.

       Gregory had also become a suspect in an unrelated forgery Myers was
investigating. Id. She and Clark decided that she would ask Gregory to come to the
police station to give a handwriting exemplar in connection with the forgery case and
that in the meantime Clark would execute a search warrant at the Syslos' residence
in connection with the burglary case. Id. at 2-3.

       Gregory arrived at the station on November 1, 2000 and was directed to an
interview room at approximately 11 a.m. Id. at 4. Myers testified that she told
Gregory that he would be questioned about the forgery investigation, Hearing Tr. at
62, but Gregory denies that he was ever informed about any investigation, see, e.g.,

                                         -3-
id. at 183. The district court made a finding, however, that Myers had given Gregory
the information. United States v. Syslo, No. 4:00CR3091, at 6 (D. Neb. May 3, 2001)
[Dist. Ct. Order]. Myers read Gregory his Miranda rights from a waiver form. After
Myers informed Gregory of his right to have an attorney, Gregory “asked Myers
whether he needed an attorney for a handwriting exemplar. Myers responded ‘No,’
and stated that reading a person’s rights in this situation was ‘just a formality.’” Mag.
Rep. at 4.3 Gregory signed the waiver of rights and began the handwriting exemplar,
which took approximately fifty five minutes. Mag. Rep. at 4. During that time,
Myers and Gregory had a general conversation about work and family. Id.

        Meanwhile Clark and Investigator Teresa Hruza executed the search warrant
at the Syslos' residence where Hruza saw a box filled with cash which matched the
description of the box seen by the dealership employees. Id. at 3. When Hruza asked
Denell to accompany the officers to the station, she agreed. Id. Since there was
nobody available to stay with the Syslos’ two young children, they went too and the
group arrived at the station shortly before noon. Id. After Clark obtained a caretaker
to stay with the children, Hearing Tr. at 10 (testimony of Inv. Clark); id. at 95
(testimony of Inv. Hruza), Hruza took Denell to an interview room and read her
Miranda warnings from a waiver form. Mag. Rep. at 5. Denell signed the form and
waived her rights, Government Exhibit 9, but she claims Hruza said that the waiver
was a formality and that she could go home if she gave a statement, otherwise she was
going to jail. Hearing Tr. at 154-56. Hruza denied making these statements, Hearing
Tr. at 113-14, and the district court found that even if Hruza had made the statements,


      3
        Gregory testified that he said "I don't think I need an attorney for this" and
that Myers had agreed with him and told him the Miranda waiver was just a formality.
Hearing Tr. at 183. Myers denied making these statements and testified that she
never tells suspects that they do not need an attorney. Id. at 87. The fact that the
magistrate judge did not allude to the officer’s conflicting testimony does not
necessarily mean that he rejected it. Cf. Dist. Ct. Order at 2 (unclear whether the
magistrate judge made a finding in respect to other conflicting testimony).
                                           -4-
Denell had voluntarily waived her rights. Dist. Ct. Order at 2. Denell asked if she
could contact her mother in law, and Hruza arranged for an officer to call her.
Hearing Tr. at 160 (testimony of D. Syslo).

       In the meantime Clark went to Gregory's interview room and told Myers that
a box of cash had been found at the Syslo' residence and Denell and the children were
at the station. Mag. Rep. at 4. Clark started to ask Gregory about the bank burglary
and the automobile purchases. Id. at 4-5. Gregory claimed that he had obtained the
cash for the cars from investments on the internet. Id. at 5. Gregory claims that Clark
said "[E]ither you tell us the truth or you and your wife are going to jail and your kids
are going to a foster home." Hearing Tr. at 186 (testimony of G. Syslo). Clark denied
making that statement, Hearing Tr. at 48, and both the magistrate judge and the
district court found that he had not. Mag. Rep. at 12; Dist. Ct. Order at 7.

       Myers went over to Denell's interview room and reported that Gregory was
talking and telling the truth. Mag. Rep. at 5. Myers testified that Denell began to cry
and made statements acknowledging that Gregory had robbed the bank. Hearing Tr.
at 72. Myers returned to Gregory's interview and informed him that his wife was
telling the truth and that now it was his turn. Mag. Rep. at 5.

      Gregory continued to deny his involvement and did not believe that his family
was at the station. Id. After he asked to see them, Myers showed him two
handwritten notes from Denell.4 Id. Gregory continued to deny his involvement in
the burglary and asked to see his children. Myers testified that when the officers
showed Gregory a Polaroid photograph of the children with the caretaker, his defiant
demeanor changed, his shoulders "slumped forward," and he admitted his

      4
         The first note said, "Greg I love you. I am telling them what little I know.
Boys are ok. Jerm [the older son] upset. Hang on. XO I love." Government Exhibit
5. The second note said: "I love you. Telling what little I know. Boys ok. Am
telling truth. I love you Kitty." Government Exhibit 6.
                                           -5-
involvement in the burglary. Hearing Tr. at 76. See also Mag. Rep. at 6. Gregory
later said, "[T]he reason that I needed this picture [was] to know Denell was here
because you guys wouldn't prove this without a confession. I'm sorry. You wouldn't.
If it was not for a confession you could not have proved this. There were no
fingerprints. There's no evidence left." Dist. Ct. Order at 6-7, quoting Transcript of
Gregory Syslo's Recorded Statement (Nov. 1, 2000) [Gregory Tr.], at 6, lines 303-06.
Gregory confessed to the burglary in a recorded statement, answered questions about
the forgery investigation, and was taken to the county jail at 1:15 p.m. Mag. Rep. at
6.

       A recorded statement was taken from Denell, starting at 12:24 p.m. Transcript
of Denell Syslo's Recorded Statement (Nov. 1, 2000) [Denell Tr.], at 1. She stated
that she had recently come to believe Gregory had committed the crime, id. at 13,
lines 642-655, but she denied actual knowledge of it, id. at lines 668-675. Hruza told
Denell that she would not go to jail if she did not lie, id. at 14, lines 744-46, and
Denell responded, "If I didn't have my children to worry about I might lie to you
thinking that I was gonna save my butt, but if Greg goes away somebody has to be
there with my kids and they're my kids," id. at 15, lines 748-50. The first part of
Denell's recorded interview concluded at 1:35 p.m. Id. at 30, line 1580.

       Myers then returned from the jail and told Hruza about Gregory's confession
and suggested that she question Denell further. Gregory had told the investigators
that Denell had been with him when he had obtained a master key to the bank,
Gregory Tr. at 9, lines 435-38, and that she had helped him count the money the day
of the crime, id. at 7, lines 351-58. The second part of Denell's recorded statement
began at approximately 1:40 p.m. A listener to the recording can hear that Hruza's
tone became sharper at this point, and she said, "[Y]ou're trying to protect yourself
cause you know right now you're sitting on the line whether you go to jail or you walk
out of here with your kids." Denell Tr. at 33, lines 1703-05. Denell eventually
admitted that she had known before the burglary that Gregory had obtained a master

                                         -6-
key, id. at 40, line 2088, and that he told her on the day of the burglary that the
proceeds amounted to nearly $100,000, id. at 36, lines 1903-04. She continued to
deny that she had actually known in advance that Gregory planned to burglarize the
bank. See id. at 41, line 2143 ("The most I ever knew was after the fact."). Denell
concluded her statement at 2:02 p.m. and went home with her children. Mag. Rep.
at 7.

      Gregory was charged with bank burglary in violation of 18 U.S.C. § 2113(a),
and he and Denell were both charged with money laundering in violation of 18 U.S.C.
§§ 1957 and 2. They moved to suppress their statements, arguing that their Miranda
waivers were invalid and that their confessions had been coerced. A magistrate judge
made findings of fact and recommended denial of the Syslos' motions. The district
court adopted most of the magistrate judge's findings and conclusions after its de
novo review, with the important exception that the court suppressed most of the
statements made by Denell during the second part of her interview because it found
they were the product of coercive questioning and thus involuntary.

       The Syslos then both pled guilty under plea agreements which protected their
rights to appeal the adverse rulings on their suppression motions. Gregory pled guilty
to bank burglary under 18 U.S.C. § 2113(a) and Denell to money laundering under
18 U.S.C. §§ 1957 and 2. Gregory was sentenced to 27 months and Denell to 21
months, but the court ordered that they should serve their sentences consecutively so
that their children would always have one parent with them. The court also ordered
three years of supervised release for each and restitution in the amount of
$103,217.52.
                                           II.

       On appeal Gregory argues that his statement should have been suppressed
because he waived his Fifth Amendment rights without understanding that he would
be interrogated and after Myers had agreed that he did not need a lawyer and said that

                                         -7-
the waiver was a formality. He also claims that Clark told him that he and his wife
would go to jail and their children to foster homes if he did not tell the truth and that
this caused him to make an involuntary confession. He says the district court erred
in finding that he had known he would be questioned about the forgery investigation
and that Clark had not made the threats. Denell argues that her Miranda waiver was
involuntary, and that her entire statement should therefore have been suppressed.

      We review factual findings under a clear error standard, and we review de novo
conclusions of law based on those factual findings, such as whether a Miranda waiver
was valid or a confession was voluntary. United States v. Barahona, 990 F.2d 412,
418 (8th Cir. 1993) (waiver of Miranda rights); United States v. Casal, 915 F.2d
1225, 1228 (8th Cir. 1990) (voluntariness of confession).

       A waiver of the Fifth Amendment privilege against self incrimination is valid
only if it is made voluntarily, knowingly, and intelligently. Miranda v. Arizona, 384
U.S. 436, 444 (1966). A waiver is knowing if it is "made with a full awareness of
both the nature of the right being abandoned and the consequences of the decision to
abandon it." Moran v. Burbine, 475 U.S. 412, 421 (1986). It is voluntary if it is "the
product of a free and deliberate choice rather than intimidation, coercion, or
deception." Id.

       The district court found that Gregory had known he would be interrogated
about the forgery investigation, and we conclude that this finding is supported by the
record. Investigator Myers testified that she definitely had intended to question him
about the forgery case, Hearing Tr. at 85, and that prior to administering his Miranda
rights she told him they would "probably talk about the forgery," id. at 62. The
giving of Miranda warnings is not necessary to obtain a handwriting exemplar,
Gilbert v. California, 388 U.S. 263, 266-67 (1967), and the fact that they have been
given implies that an officer intends to question the suspect. Moreover, the waiver
forms signed by the Syslos referred several times to the fact that the signer would be

                                           -8-
questioned, and the Syslos indicated on the forms that they understood this.
Government Exhibits 1 & 9.

       Although Gregory was interrogated about the bank burglary before the forgery,
the sequence of questioning does not affect the validity of a Miranda waiver.
Colorado v. Spring, 479 U.S. 564, 577 (1987); McKee v. Nix, 995 F.2d 833, 837-38
(8th Cir. 1993), cert. denied, 510 U.S. 998 (1993). An officer may change the topic
of interrogation without notice because a "suspect's awareness of all the possible
subjects of questioning in advance of interrogation is not relevant to determining
whether the suspect voluntarily, knowingly, and intelligently waived his Fifth
Amendment privilege." Spring, 479 U.S. at 577. The dissent argues that Gregory's
confession was the product of a constitutionally impermissible bait and switch plan,
but there were no findings of police trickery by the district court, see Spring, 479 U.S.
at 575, and the Supreme Court "has never held that mere silence by law enforcement
officials as to the subject matter of an interrogation is 'trickery' sufficient to invalidate
a suspect's waiver of Miranda rights." Id. at 576.

       A suspect must clearly and unambiguously request a lawyer in order to trigger
his Fifth Amendment right to counsel. Davis v. United States, 512 U.S. 452, 462
(1994) ("Maybe I should talk to a lawyer" is insufficient to trigger Fifth Amendment
right to counsel). Gregory did not clearly and unambiguously request a lawyer when
he said, "I don't think I need an attorney for this." Hearing Tr. 183. The Syslos went
to the police station voluntarily, were informed that they would be questioned, and
agreed to answer. Under these circumstances, their Miranda waivers were not
invalidated even if the officers had told them that signing the waivers was a formality.
Cf. Russell v. Jones, 886 F.2d 149, 151 (8th Cir. 1989) (statement admissible despite
defendant's contention that he only waived his rights and confessed because police
told him "he 'had to'"). The district court did not err in concluding that the Syslos’
waivers were knowing and intelligent.



                                             -9-
       To determine whether a waiver or a confession was voluntary, a court looks at
the totality of the circumstances and must determine whether the individual's will was
overborne. United States v. Holloway, 128 F.3d 1254, 1256 (8th Cir. 1997) (waiver);
United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir. 1989) (confession). A court
must examine both "the conduct of the law enforcement officials and the capacity of
the suspect to resist pressure to confess." United States v. McClinton, 982 F.2d 278,
282 (8th Cir. 1992).

       Clark denied making the threatening statements attributed to him by Gregory,
Hearing Tr. at 48, and the district court found that he had not, Dist. Ct. Order at 7.
The credibility findings of the district court are entitled to deference. Barahona, 990
F.2d at 419. Gregory argues that his decision to confess after seeing a picture of his
children in police custody could only be explained by his having been threatened. As
the district court noted, however, Gregory's own testimony indicated that he himself
demanded proof of his family's presence at the station so that he could gauge the
likelihood that his wife could be giving the police incriminating evidence. Dist. Ct.
Order at 7. Gregory testified: "[T]he reason that I needed this picture [was] to know
Denell was here because you guys wouldn't prove this without a confession." Id.,
quoting Gregory Tr. at 6, lines 303-04.

       The record does not indicate that Gregory was susceptible to police pressure
or that his will was overborne. Gregory had worked as a security guard, and police
had previously interrogated him in an unrelated investigation. Government Exhibit
8. Even after he agreed to confess, his statements reflected a confident attitude. Mag.
Rep. at 6 ("defiant"); Hearing Tr. at 76 (testimony of Inv. Myers) ("real defiant" and
"confident"). He showed familiarity with criminal procedure when he stated, "If it
was not for a confession you could not have proved this. There were no fingerprints.
There's no evidence left." Gregory Tr. at 6, lines 305-06. Cf. Casal, 915 F.2d at
1228-29 (suspect not coerced by knowledge that pregnant girlfriend was in custody
when police had legitimate reason to take her to station and did not threaten him in

                                         -10-
respect to her or recruit her to persuade him to confess). The district court did not err
in denying Gregory's motion to suppress.

       Denell argues that the district court should have suppressed her entire statement
because she felt coerced when first threatened with the possibility of jail. Denell
contends that she waived her Fifth Amendment privilege only after she had been
placed in a police dominated atmosphere, her children had been left in a room with
an unfamiliar caretaker, and Hruza had threatened jail if she were untruthful. Cf.
Lynumn v. Illinois, 372 U.S. 528 (1963) (confession involuntary when police
surrounded woman and threatened to cut off her state aid and put her children in
foster care). The district court concluded that Denell's waiver was voluntary and that
her will was not overborne at the time she made her initial statement.

        This conclusion is supported by the record. Denell voluntarily took her
children to the police station, Mag. Rep. at 3, and the officers obtained a caretaker for
them once they were there, id. at 5. She was questioned by only a single female
officer. Denell argues that she was coerced by Hruza’s statement that she would not
go to jail as long as she did not lie, but the transcript shows that it was Denell who
introduced the issue of the children's welfare when she said, "If I didn't have my
children to worry about I might lie to you thinking that I was gonna save my butt, but
if Greg goes away somebody has to be there with my kids and they're my kids."
Denell Tr. at 15, lines 748-50. See also Denell Tr. at 9, lines 453-459 ("And I asked
[Gregory] point blank was I...gonna get a knock on the door...and he says no I didn't
do it.... [And I said] I don't wanna go to jail our kids will end up with somebody we
don't know, did you do this?"). This statement reveals independent and deliberate
thought rather than an overborne will. Moreover, Denell testified that she knew the
officers "were making efforts to contact [her] mother-in-law," Hearing Tr. at 167, and
the sound of Denell’s voice in her taped interview corroborates Hruza's testimony that
her demeanor was controlled, id. at 109.



                                          -11-
       The dissent states that the district court found that the children were kept at the
police station for the purpose of coercing Denell’s confession and that this finding
supports the suppression of Denell’s entire confession. Neither the district court nor
the magistrate judge found that the children were taken to the police station for the
purpose of inducing confessions, however, and the findings of fact indicate that
Denell agreed to take them along as a matter of expediency. On the record before the
district court, it could have reasonably concluded that the children’s presence at the
station did not begin to exert any coercive influence on Denell until she realized that
they would not be able to be picked up by a relative. The district court thus did not
err when it suppressed only statements made by Denell after her interview resumed
at approximately 1:40 p.m.

       The district court examined the totality of the circumstances and concluded that
Gregory's waiver was not induced by trickery or coercion, that Denell's waiver was
voluntary, and that Denell's statements were voluntary until the point when they were
suppressed. We find no error in these determinations. Moreover, the intentions
behind the officers' actions do not control the issue of whether waiver or confession
was voluntary. Cf. Whren v. United States, 517 U.S. 806, 812-13 (1996) (officer
intent not determinative of whether probable cause existed); Stansbury v. California,
511 U.S. 318, 323-24 (1994) (per curiam) (officer intent not determinative of whether
suspect was in custody); Graham v. Connor, 490 U.S. 386, 397 (1989) (officer intent
not determinative of whether excessive force was used during seizure); New York v.
Quarles, 467 U.S. 649, 656 n.6 (1984) (officer intent not determinative of whether
public safety exception to Miranda warnings existed); Rhode Island v. Innis, 446 U.S.
291, 301-02 (1980) (officer intent not determinative of whether suspect was
interrogated).




                                           -12-
                                          III.

       After thoroughly reviewing the record, we conclude that the district court did
not err in its findings or analysis. The district court conducted a thorough de novo
review, made careful findings, and rejected some of the magistrate judge’s
recommendations. It exercised its independent judgment to exclude incriminating
remarks that Denell made during the second part of her interview, including
statements that she had known about the burglary immediately after it occurred and
that she had known Gregory had obtained a master key to the bank before the
burglary. We conclude that the statements made by Gregory and by Denell which
were not suppressed by the district court were knowing, intelligent, and voluntary and
that their constitutional rights were not violated.

      Accordingly, the judgments of conviction are affirmed.

McMILLIAN, Circuit Judge, dissenting.

                                           I.

      I respectfully dissent. To begin, I disagree with the district court’s disposition
of Gregory’s motion to suppress his confession.

      The factual findings in the present case establish that Myers and Clark planned
ahead of time to induce Gregory to come to the police station voluntarily because
Myers purportedly wanted a handwriting sample for her forgery investigation.
However – as the magistrate judge specifically found – it was further planned that
Clark would use the opportunity to question Gregory about the bank burglary. See
Mag. Rep. at 2-3 (“Clark and Myers designed a plan whereby Myers would ask
Gregory Syslo to come to the LPD station to give a handwriting exemplar in
connection with the forgery investigation while Clark executed a warrant to search
the Syslos’ residence and he then would question Gregory in connection with the

                                          -13-
burglary investigation.”) (emphasis added). While Myers may have informed
Gregory that he might be questioned about the forgery matter, she never indicated
that he would be interrogated about the bank burglary, as the two officers had planned
all along. See id. at 3 (“In accordance with the plan, Myers called Gregory and
scheduled a meeting for October 31, 2000. Because of a work-related problem,
Gregory called Myers and rescheduled the meeting to 10:30 a.m. the following day.
Myers did not inform Gregory during either of these two contacts that he would also
be questioned about the July 4th burglary of the NBC Bank.”) (emphasis added). If
this were all that had happened, I would not disagree with the district court’s
disposition of Gregory’s case. See Colorado v. Spring, 479 U.S. at 576 (“This Court
has never held that mere silence by law enforcement officials as to the subject matter
of an interrogation is ‘trickery’ sufficient to invalidate a suspect’s waiver of Miranda
rights.”). However, after Myers read Gregory his Miranda rights, and while Gregory
was looking over the waiver of rights form, Gregory “asked Myers whether he needed
an attorney for a handwriting exemplar. Myers responded ‘No,’ and stated that
reading a person’s rights in this situation was ‘just a formality.’”5 Mag. Rep. at 4



      5
         After quoting the very same language from the magistrate judge’s report in the
majority opinion, the majority points out in a footnote that Myers denied telling
Gregory that he did not need an attorney and denied saying that the Miranda warning
was “just a formality.” See supra at n.3. The majority then makes the rather
confusing comment that: “The fact that the magistrate judge did not allude to the
officer’s conflicting testimony does not necessarily mean he rejected it.” Id. (citing
Dist. Ct. Order at 2). The magistrate judge’s factual findings speak for themselves,
and, to the extent they were adopted by the district court, see Dist. Ct. Order at 1, 5,
7 (adopting the magistrate judge’s report and recommendation “in all respects as it
relates to Gregory Syslo”), they must be accepted as true on appeal absent clear error.
We have never required a lower court to expressly reject contrary evidence in order
for its factual findings to be afforded the appropriate deference under the clear error
standard. Moreover, the portion of the district court’s order which the majority cites
in note 3, supra, as supporting authority (“Cf. Dist. Ct. Order at 2”) comes from a part
of the district court’s order where the district court is making independent findings
of fact concerning Denell’s motion to suppress.
                                          -14-
(emphasis added). Gregory then signed the waiver of rights form which is now being
used to uphold Gregory’s confession to the bank burglary.

      In light of the magistrate judge’s specific findings that Myers indicated to
Gregory that he did not need an attorney, and that she told him the Miranda warning
was “just a formality,” this case is clearly distinguishable from Colorado v. Spring,
479 U.S. at 577, and McKee v. Nix, 995 F.2d at 837-38, upon which the district court
and the majority rely. Indeed, in Colorado v. Spring, 479 U.S. at 576 n.8, the
Supreme Court observed that, in some circumstances, “affirmative misrepresentations
by the police [may be] sufficient to invalidate a suspect’s waiver of the Fifth
Amendment privilege.”6 I believe this is just such a circumstance. The Miranda
warning, especially in this case, was not “just a formality,” and Myers knew it. The
very objective of the bait-and-switch plan she had hatched with Clark was to use this
opportunity to extract a confession from Gregory to the bank burglary. Yet Myers
deliberately suggested that self-incrimination was not a cause for concern, on the
premise that he was only there in connection with her forgery investigation. By


      6
          Footnote 8 of the Supreme Court’s Spring opinion states in full:

      In certain circumstances, the Court has found affirmative
      misrepresentations by the police sufficient to invalidate a suspect’s
      waiver of the Fifth Amendment privilege. See, e.g., Lynumn v. Illinois,
      372 U.S. 528 (1963) (misrepresentation by police officers that a suspect
      would be deprived of state financial aid for her dependent child if she
      failed to cooperate with authorities rendered the subsequent confession
      involuntary); Spano v. New York, 360 U.S. 315 (1959)
      (misrepresentation by the suspect’s friend that the friend would lose his
      job as a police officer if the suspect failed to cooperate rendered his
      statement involuntary). In this case, we are not confronted with an
      affirmative misrepresentation by law enforcement officials as to the
      scope of the interrogation and do not reach the question whether a
      waiver of Miranda rights would be valid in such a circumstance.

479 U.S. at 576 n.8.
                                          -15-
saying that the Miranda warning was “just a formality,” she indicated to him that
invoking his right to remain silent and his right to an attorney would not make a
difference, knowing full well that it would make an enormous difference because he
was about to be interrogated about the bank burglary. Myers did not remain merely
silent about the subject matter of the interrogation, she made affirmative
misrepresentations and obtained Gregory’s waiver of rights by deception.

       In neither Colorado v. Spring nor McKee v. Nix did the law enforcement
officers indicate to the suspect that an attorney was not needed or tell the suspect that
the Miranda warning was “just a formality,” or make a similar misrepresentation. In
neither case did they deliberately lead the suspect to believe that the waiver of rights
was for a limited purpose, and then rely upon it for a different purpose. Colorado v.
Spring and McKee v. Nix stand for the related, yet materially different, proposition
that, once a waiver of rights has been validly and generally executed, it may continue
in effect even though the topic of the interrogation may change without warning to
the suspect.

       Nor is the majority’s decision justified by Russell v. Jones, 886 F.2d at 151,
cited in the majority opinion. In Russell v. Jones, an action brought pursuant to 28
U.S.C. § 2254, this court noted that, notwithstanding the petitioner’s claim that the
police had told him he “had to” sign a Miranda waiver and confession, “there were
no findings of police misbehavior,” and the record did not support a finding that the
police had engaged in any improper actions. Id. In the case at bar, by contrast, the
magistrate judge specifically found that Myers said “No” when Gregory asked if he
needed an attorney and told Gregory that the Miranda warning was “just a formality,”
which – as I have explained – was clearly improper under the totality of the
circumstances. Myers should have either refrained from making the affirmative
misrepresentations or, at the time she introduced Clark to Gregory for purposes of




                                          -16-
initiating Clark’s interrogation regarding the bank burglary, administered a new
Miranda warning.7

       For the reasons stated, I would hold, upon de novo review, that Gregory’s
waiver of rights and confession, vis-a-vis the bank burglary, were not voluntary under
the totality of the circumstances. Accordingly, I would remand Gregory’s case to the
district court with instructions to suppress his confession.

                                           II.

       I also disagree with the district court’s disposition of Denell’s motion to
suppress her statement. While the district court did conclude that Hruza’s tactics
became unduly coercive during the course of the interrogation (a finding with which
I do agree), the district court did not find the circumstances to be sufficiently coercive
to overcome Denell’s will until well into Hruza’s interrogation of Denell. I would
hold that Denell’s will was overborne at an earlier point in time.

       In determining that Denell’s statement should be suppressed starting on page
33, line 1703, of the 41-page transcript (Govt. Exh. 11), the district court reasoned as
follows.

             Denell Syslo was placed in a police dominated atmosphere and
      expressly threatened that, unless she “told the truth,” she would not be
      allowed to leave the station with her children. Denell was confronted by
      several officers in her home and was taken to the police station in a
      police vehicle after one officer helped her dress the children for the trip.
      The hearing testimony reflects that the Syslo children were upset upon
      arriving at the police station and had to be comforted for a period of
      time before they were left in the officers’ lounge under the supervision

      7
      Not only did Myers introduce Clark to Gregory and inform Gregory that Clark
would be questioning him about the bank burglary, she stayed for the first five to ten
minutes of the interrogation. See Mag. Rep. at 4-5.
                                           -17-
      of a member of the victim witness unit. The fact that Denell Syslo was
      aware that her three-year-old son was upset by the day’s events is
      reflected in Exhibit 5. After her children were placed in a nearby room
      with a stranger, Denell was not allowed to contact a relative to come and
      retrieve the children. Denell was also asked to write two notes to her
      husband, both of which were designed to convey to him the fact that the
      children were being held at the police station along with her. Although
      there is evidence that Mrs. Syslo is educated, there is no indication that
      she has had any previous exposure to police interrogation. The latter
      pages of the transcript of Denell Syslo’s statement present a dialogue
      between a distressed mother who wanted to leave the police station with
      her children and a police officer who repeatedly played upon this
      distress by making threats. I find that the government has failed to
      establish that the portion of Denell’s statement beginning at page 33,
      line 1703, and continuing through its conclusion was not obtained
      through coercive tactics that overbore the will of Mrs. Syslo, and
      therefore that portion of the statement must be suppressed.

Dist. Ct. Order at 5 (citation omitted).

       As the district court recognized, Denell was brought to the police station with
her two very young children, whom she obviously could not leave at home alone.
While en route to the station, Hruza informed Denell that she was not free to leave.
Mag. Rep. at 3-4 (“On their way to the station Dennell asked whether she was under
arrest. Hruza responded she was not under arrest, but explained that she was under
investigative detention and could not leave.”) (emphasis added). When they arrived
at the police station, the children were upset and it took some time for Denell to calm
them down before they could be left in a room with a volunteer caretaker. Although
efforts were made to contact Denell’s mother-in-law, the children were not to be
removed from the police station. See Dist. Ct. Order at 5 (“In the present case, not
only were express threats made to Denell Syslo concerning her children, but there is
no evidence of any legitimate purpose supporting the children’s detention at the
police station when Denell sought to have her mother-in-law remove them prior to the
interrogation.”). Indeed, the district court concluded that the children were kept at

                                           -18-
the police station for the very purpose of coercing Denell into confessing. See id.
(“[I]t seems to me that the children were kept at the station in order to assist the
officers in coercing a confession from Denell Syslo.”); id. at 2-3 (“The notion that the
children were being kept at the police station in order to assist the police in coercing
a statement from Denell is supported by Investigator Hruza’s testimony that, although
Denell Syslo’s mother-in-law was to be contacted on Denell’s behalf and informed
that Denell, Gregory, and the children were all at the police station, it was not a part
of this arrangement to allow the mother-in-law to take the children from the station
as Denell desired.”). Denell was given no other option but to leave her distraught
three-year-old and eleven-month-old baby in an unfamiliar place, out of her sight,
with a complete stranger.

       Under these circumstances, Hruza proceeded to take Denell into a separate
interview room, where she began questioning Denell, “repeatedly play[ing] upon
[Denell’s] distress by making threats.” Id. at 5. Hruza’s “threats” (as the district
court described them) presented Denell with a Hobson’s choice: incriminate yourself
and go home with your children or refuse to incriminate yourself and immediately go
to jail, leaving them to suffer the consequences. The loud and clear message
continued to be that confessing was the only way for Denell to ensure a reunion with
her children.

      The following was the first tape recorded8 threat made by Hruza:

      DENELL SYSLO: I had my doubt I mean I didn’t know for sure he
      [Gregory] didn’t tell me flat out but you know I didn’t lie to you I had
      my doubts but he never came flat out and told me. He just, he danced
      around it like I told you well what if I did ah you know I’m not gonna
      lie to you I doubted.


      8
        Hruza admitted that, although she obtained the tape recorder before the
interview began, she did not start the tape recorder right away. Hearing Tr. at 113,
lines 7-12.
                                          -19-
      INV. HRUZA: Okay

      DENELL SYSLO: I wondered

      INV. HRUZA: Well as long as you don’t lie you’re not going to jail.
      If you lie they might decide that there’s reason to take you to jail
      that you would not stick around or something.

      DENELL SYSLO: If I didn’t have my children to worry about I might
      lie to you thinking that I was gonna save my butt but if Greg goes away
      somebody has to be there with my kids and they’re my kids.

      INV. HRUZA: I guess you know you’d prefer to have you there.

Transcript (Govt. Exh. 11) at page 14, line 735, through page 15, line 752 (emphasis
added).

        As the interview proceeded, Hruza became increasingly forthright in making
her threats, as the following examples illustrate. “[Y]ou know right now you’re
sitting on the line whether you go to jail or you walk out of here with your kids?” Id.
at 33, lines 1704-05. “You know I don’t wanna take you away from your kids and put
you in jail okay but I need you to be truthful and not hold back from me anymore.”
Id. at 34, lines 1797-99. “[Y]ou tell the truth I’m not gonna take you to jail. You may
get a ticket, you are probably going to get a ticket, okay but I won’t take you to jail.
If you lie to me and keep lying to me you are most likely going to go to jail.” Id. at
36, lines 1880-83. Finally, “You can go over there and sit in the jail with him or you
can go home with your kids.” Id. at 37, lines 1946-47.

      In my opinion, there is no material difference between Hruza’s statement found
on page 14 of the transcript (Govt. Exh. 11), and the later statements beginning on
page 33. The mere fact that Hruza did not herself expressly mention the children in
the earlier statement is inconsequential because Hruza was explicitly threatening
Denell with immediate detention in jail. Hruza of course knew that Denell was


                                          -20-
thinking about the effect her detention would have on the children, and Hruza was
obviously insinuating that Denell would not be there to take care of them.9 I believe
it was clear error for the district court not to find that Hruza was implicitly
threatening Denell and was, by that point in time, overbearing Denell’s will and
critically impairing her capacity for self-determination. See United States v. Pierce,
152 F.3d 808, 812 (8th Cir. 1998) (“In considering whether a confession was
voluntary, the determinative question is whether the confession was extracted by
threats, violence, or promises (express or implied), such that the defendant’s will was
overborne and his or her capacity for self-determination was critically impaired. In
making this determination, courts look at the totality of the circumstances, including
the conduct of the law enforcement officials and the defendant’s capacity to resist
pressure.”) (emphasis added) (citations omitted).

       Finally, in an effort to justify Hruza’s repeated threats, the government argues
that they were not coercive because they were mere expressions of what Hruza
genuinely believed to be true.10 However, testimony from the suppression hearing
belies that assertion. Detective Myers testified that she was the one who obtained
approval from the county attorney for Denell’s release, and the issue of Denell’s
truthfulness never came up in her conversation with the county attorney about
whether or not Denell should be released. By contrast, the problem of having to place
the children in foster care if Denell were held in jail did come up as a reason in favor
of releasing her, without any mention of Denell’s truthfulness or any other



      9
       Indeed, although we cannot know exactly what transpired between Hruza and
Denell beforehand, because Hruza did not tape record the beginning of the
interrogation, see supra note 8, the dialogue suggests to me that they had previously
discussed the uncertain fate of the children.
      10
        The government argues: “Officer Hruza understood that if Denell Syslo
provided false information to the police this might be a factor taken into consideration
in determining whether Denell could at that time be released or logged in jail, and she
so informed Denell.” Brief for Appellee at 13 (emphasis in original).
                                          -21-
condition.11 This evidence demonstrates that there was no factual basis for Hruza’s
repeated threats to Denell. Nevertheless, from the time Hruza told Denell that she
was not free to leave until the time Denell was finally released with her children about
two and a half hours later, the officers continued to convey to Denell, through their
actions and their words, that she had to confess if she wanted to go home with her
children. Indeed, as the district court concluded, the very purpose of detaining the
children at the police station for the duration of Denell’s interrogation, rather than
allowing them to be picked up by their grandmother, was “to assist the officers in
coercing a confession from Denell Syslo.” Dist. Ct. Order at 5.

       I would hold, upon de novo review, that most, if not all, of Denell’s tape-
recorded statement was the product of an overborne will and, therefore, was not
provided voluntarily under the totality of the circumstances. I would reverse the
district court’s denial of her motion to suppress as to the first 32 pages of the 41-page
transcript (Govt. Exh. 11), and I would remand Denell’s case to the district court with


      11
         Upon questioning by the magistrate judge at the suppression hearing, Myers
testified as follows:

       THE COURT: Did [the county attorney] ever condition the decision to
      release Denell Syslo on her satisfying you that she was telling the truth?

      [MYERS]: I don’t think I ever even brought that up. I told him that – or
      I asked him, I said, do you have a problem if we cite and release Denell
      for a felony and have her show up for arraignment tomorrow since she’s
      got her kids down here? Then we don’t have to find a place for them.
      And he said, no, I don’t have a problem with it if you’re comfortable
      with it. I don’t think we ever went into any conditions or anything like
      that.

      [MYERS]: And this is something that we – we have done with the
      county attorney in the past. We’ve cited and released on felonies before.

Hearing Tr. at 140, line 12, to 141, line 4.
                                          -22-
instructions to suppress the statement starting at least at page 14, line 744, of the
transcript.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




                                        -23-
