 1       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Opinion Number:

 3 Filing Date: January 18, 2018

 4 NO. S-1-SC-35104

 5 STATE OF NEW MEXICO,

 6       Plaintiff-Appellant,

 7 v.

 8 FILEMON V.,

 9       Defendant-Appellee.

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


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

15 for Appellant


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

19 for Appellee
 1                                       OPINION

 2 VIGIL, Justice.

 3 I.      INTRODUCTION

 4   {1}   In this case we reexamine a juvenile’s right to be free from self-incrimination,

 5 as secured by the Fifth Amendment of the United States Constitution and the Basic

 6 Rights provision under the Delinquency Act of the Children’s Code, NMSA 1978,

 7 Section 32A-2-14 (2009). The State appeals the suppression of two statements made

 8 by sixteen-year-old Filemon V.

 9   {2}   Filemon made the first statement to his probation officers. We hold that, absent

10 a valid waiver, Section 32A-2-14(C) precludes the admission of Filemon’s statement

11 to his probation officers while in investigatory detention. We affirm the district

12 court’s order suppressing the use of the statement in a subsequent prosecution.

13   {3}   The second contested statement was elicited by police officers at the Silver

14 City Police Department. Filemon was at this point in custody, and entitled to be

15 warned of his Miranda rights. At issue is whether the midstream Miranda warnings

16 were sufficient to inform Filemon of his rights. We conclude that the warnings were

17 insufficient under Missouri v. Seibert, 542 U.S. 600, 617 (2004). Because the

18 statement was elicited in clear violation of the Fifth Amendment and Section 32A-2-

19 14, we affirm the district court’s suppression of the statement.
 1 II.     BACKGROUND AND PROCEDURAL HISTORY

 2   {4}   This case comes to this Court on interlocutory appeal from the Sixth Judicial

 3 District Court. Pursuant to Rule 12-201(A)(1)(a) NMRA, the State appeals the district

 4 court’s order to suppress two statements, one elicited at the juvenile probation office

 5 and the other at the Silver City Police Department.

 6   {5}   Filemon was on probation for committing a delinquent act and expected to

 7 come to the probation office to pick up a travel permit. Filemon arrived at the

 8 probation office with his mother and stepfather. When he entered the lobby,

 9 Supervisor Rachel Medina greeted Filemon and asked if he was there to pick up the

10 travel permit. Filemon responded that he “just shot Chugie and Eric.”1 Supervisor

11 Medina asked what Filemon was talking about, and Filemon’s mother interjected,

12 stating that he was there “to turn himself in.” At that point, Filemon’s probation

13 officer, Cody McNiel, entered the lobby. Filemon again said that he was there to

14 “turn[] himself in,” this time adding, “for murder, I guess.”



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

                                               2
 1   {6}   Prior to Filemon’s arrival, McNiel had been informed of a shooting and was

 2 helping to locate a potential suspect—Filemon’s co-defendant in another case. Thus,

 3 McNiel knew what Filemon was talking about. McNiel told Filemon to “go ahead and

 4 come in and . . . we’ll go to my office and . . . we’ll discuss it.”

 5   {7}   McNiel escorted Filemon through a locked door and a hallway, to Supervisor

 6 Medina’s office. McNiel shut the door. Filemon’s parents told McNiel and Supervisor

 7 Medina that Filemon wanted to turn himself in to New Mexico State Police Officer

 8 Michael Dunn, because “that’s who he trusts.” McNiel stepped out and asked another

 9 probation officer to call the police, identifying Filemon as “the shooter.”

10   {8}   Inside Supervisor Medina’s office, McNiel asked if Filemon was there “to

11 confess [to] the drive-by shooting.” Filemon responded, “[I]t wasn’t a drive-by.”

12 McNiel persisted, “[O]kay . . . why don’t you go ahead and tell me the story then.”

13 Filemon responded with the first contested statement. McNiel continued to speak to

14 Filemon until police arrived.

15   {9}   Supervisor Medina later testified that Filemon arrived at the probation office

16 of his own volition, and neither she nor McNiel questioned Filemon. According to

17 McNiel, however, McNiel “wanted to keep him talking until . . . law enforcement got

18 there so that they could take him into custody.” Filemon’s mother “[did] most of the


                                               3
 1 talking” and “Filemon said very little.” Neither probation officer advised Filemon of

 2 his Miranda rights or his right to remain silent under Section 32A-2-14. See Javier

 3 M., 2001-NMSC-030, ¶ 41 (determining that Section 32A-2-14 requires a child to be

 4 warned of the right to remain silent during an investigatory detention).

 5   {10}   Several police officers arrived at the probation office, including Officer Dunn

 6 and Sergeant Joseph Arredondo. Sergeant Arredondo had been present at the hospital

 7 with the victims prior to his dispatch and knew Filemon was a suspect. Supervisor

 8 Medina told at least one police officer what Filemon had said. According to

 9 Supervisor Medina, the parking lot of the juvenile probation office looked “like

10 Christmas” due to the number of police units and flashing lights.

11   {11}   Sergeant Arredondo informed Filemon that “detectives needed to speak with

12 him” and transported Filemon and his mother to the Silver City Police Department,

13 where he turned Filemon over to Captain Javier Hernandez. Captain Hernandez met

14 Filemon and his mother in the parking lot and asked if they would come inside.

15 Captain Hernandez had been actively questioning an eyewitness to the shooting, and

16 knew that the likely shooter was short, named “Fil,” and had a “peanut-shaped” head,

17 which matched Filemon’s appearance.

18   {12}   Seeing that the interview room was occupied with another suspect, Captain


                                               4
 1 Hernandez took Filemon and his mother to his office. Captain Hernandez summoned

 2 the case agent assigned to the murder investigation, Detective Pat Castillo. Captain

 3 Hernandez later testified that he intended for Detective Castillo “to sit there and listen

 4 to what [Filemon] had to say because the other witness . . . wasn’t cooperating with

 5 us.” Captain Hernandez turned on his belt recorder and asked Filemon “how old he

 6 was” and “if he was going to tell me what happened today.” Filemon responded,

 7 “What [do] you want to know?” Captain Hernandez answered, “Everything.” Filemon

 8 proceeded to give a full statement.

 9   {13}   At no time did Captain Hernandez advise Filemon of his constitutional rights.

10 When asked why he did not advise Filemon of his constitutional rights, Captain

11 Hernandez said, “I didn’t really think about it. I wasn’t sure what his involvement was

12 . . . if he was the shooter or if he wasn’t the shooter. I just wanted to see what

13 information he had.” Once he obtained Filemon’s statement, Captain Hernandez told

14 Filemon that he would be detained. The State concedes that the statement elicited by

15 Captain Hernandez is inadmissible.

16   {14}   Captain Hernandez then asked Filemon to make a statement to Detective

17 Castillo. Detective Castillo took Filemon and his mother to the interview room, where

18 he read Filemon his Miranda warnings. Before continuing the interview, Detective


                                               5
 1 Castillo told Filemon that he was “finishing up.” Detective Castillo characterized the

 2 Miranda warnings as a “formality,” and instructed Filemon and his mother to sign the

 3 written waiver of rights, which they did. Detective Castillo explained that their

 4 conversation would “go the same way” as the conversation with Captain Hernandez,

 5 but in greater detail. Detective Castillo did not inform Filemon that the statement he

 6 had just given to Captain Hernandez would not be admissible at trial. Detective

 7 Castillo then obtained a second statement, which included the same content as the

 8 statement elicited by Captain Hernandez.

 9   {15}   At the conclusion of the suppression hearing, the district court determined that

10 the statement in Supervisor Medina’s office was inadmissible because Filemon was

11 not advised of his statutory right against self-incrimination and did not knowingly,

12 voluntarily, and intelligently waive his rights under Section 32A-2-14(D). The district

13 court also suppressed both statements elicited at the Silver City Police Department,

14 finding that the pre-Miranda, unwarned statement was inadmissible; Detective

15 Castillo’s midstream Miranda warnings were constitutionally inadequate under

16 Seibert, 542 U.S. at 604; and neither statement was made subject to a valid waiver

17 under Section 32A-2-14(D).

18   {16}   The State appeals the district court’s order to suppress two statements: (1) the


                                                6
 1 statement in Supervisor Medina’s office; and (2) the post-warning statement to

 2 Detective Castillo. On appeal, the State contends that Section 32A-2-14 does not

 3 preclude the admission of the statement and that Section 32A-2-14 applies only when

 4 law enforcement places a child in investigatory detention. The State also contends

 5 that the post-Miranda statement to Detective Castillo is admissible because it was

 6 voluntary, uncoerced, and made subject to a valid waiver. Because the charges expose

 7 Filemon to a potential sentence of life imprisonment, we have jurisdiction to decide

 8 the appeal under Rule 12-102(A)(1) NMRA. State v. Smallwood, 2007-NMSC-005,

 9 ¶ 11, 141 N.M. 178, 152 P.3d 821.

10 III.     STANDARD OF REVIEW

11   {17}   An appeal of a district court’s suppression ruling raises a mixed question of

12 fact and law. State v. Wyatt B., 2015-NMCA-110, ¶ 16, 359 P.3d 165. We review

13 “whether the law was correctly applied to the facts,” viewing the facts “in a manner

14 most favorable to the prevailing party.” State v. Jason L., 2000-NMSC-018, ¶ 10, 129

15 N.M. 119, 2 P.3d 856 (internal quotation marks and citation omitted). We defer to the

16 district court’s findings of fact so long as they are supported by substantial evidence.

17 Id. “Substantial evidence is such relevant evidence as a reasonable mind might accept

18 as adequate to support a conclusion.” Wyatt B., 2015-NMCA-110, ¶ 16 (internal


                                              7
 1 quotation marks and citation omitted). “The district court’s application of the law to

 2 the facts is a question of law that we review de novo.” Id.

 3 IV.      DISCUSSION

 4   {18}   In determining the admissibility of the statements, we begin with the

 5 fundamental principles against self-incrimination. The right against self-incrimination

 6 is borne of the Fifth Amendment and applied to the states through the Fourteenth

 7 Amendment. See Malloy v. Hogan, 378 U.S. 1, 8 (1964). The Fifth Amendment may

 8 be invoked in response to “official questions . . . in any . . . proceeding, civil or

 9 criminal, formal or informal, where the answers might incriminate . . . in future

10 criminal proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 (1984) (internal

11 quotation marks and citation omitted).

12   {19}   In Miranda v. Arizona, the United States Supreme Court adopted a warnings-

13 based approach for determining the admissibility of statements elicited in police

14 custody. See 384 U.S. 436, 476 (1966). Prior to police questioning, police must

15 advise the person of the right to remain silent, that any statement made may be used

16 as evidence against him or her, and of the right to an attorney. Id. at 444. It is only

17 through these warnings, and an awareness that anything said can and will be used

18 against the person in court, “that there can be any assurance of real understanding and


                                              8
 1 intelligent exercise of the privilege.” Id. at 469. Of particular importance is the notion

 2 that statements that would otherwise be considered voluntary must be excluded for

 3 failure to warn. Dickerson v. United States, 530 U.S. 428, 443-44 (2000).

 4   {20}   In addition to the constitutional protections against self-incrimination, Section

 5 32A-2-14 provides a statutory right against self-incrimination to children suspected

 6 of delinquent conduct. Javier M., 2001-NMSC-030, ¶ 41. Section 32A-2-14(C)

 7 provides, in part:

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

12 In Javier M., we explained that “Section 32A-2-14 is not a mere codification of

13 Miranda, but was intended instead to provide children with greater statutory

14 protection than constitutionally mandated.” Javier M., 2001-NMSC-030, ¶¶ 30, 32.

15 “Instead of using Miranda triggering terms such as ‘custody’ or ‘custodial

16 interrogation,’ the Legislature used much broader terms, such as, ‘alleged,’

17 ‘suspected,’ ‘interrogated,’ and ‘questioned.’ ” Id. ¶ 29 (quoting Section 32A-2-

18 14(C)). It is well-settled that unwarned statements that are admissible under Miranda

19 may be inadmissible under Section 32A-2-14. See, e.g., id. ¶ 48; State v. Antonio T.,



                                                9
 1 2015-NMSC-019, ¶¶ 15-17, 352 P.3d 1172.

 2   {21}   Questioning officials must exercise greater vigilance with child suspects due

 3 to their “[l]ack of experience, perspective, and judgment,” and their diminished

 4 “ability to recognize and avoid various choices detrimental to them.” State v. Rivas,

 5 2017-NMSC-022, ¶ 43, 398 P.3d 299 (citing J.D.B. v. North Carolina, 564 U.S. 261,

 6 272 (2011) (internal quotation marks omitted)). “That a child will experience police

 7 questioning in many ways distinct from an adult is a ‘commonsense reality.’ ” Id.

 8 (citation omitted). Even with respect to adult offenders, the United States Supreme

 9 Court has recognized that the pressure of interrogation “may induce a frighteningly

10 high percentage of people to confess to crimes they never committed.” Id. (internal

11 quotation marks and citation omitted). These concerns for truth and reliability apply

12 with greater force when the suspect is a child. See Javier M., 2001-NMSC-030, ¶ 37.

13 Mindful of the foregoing principles against self-incrimination, and with particular

14 attention to Filemon’s youth, we analyze the admissibility of the contested statements.

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

17   {22}   The question of whether a child’s unwarned statement in response to

18 questioning by his probation officer is admissible under Section 32A-2-14 is a matter



                                              10
 1 of statutory interpretation to be reviewed de novo. See Antonio T., 2015-NMSC-019,

 2 ¶ 12. To determine if a statement is admissible under Section 32A-2-14, we first

 3 establish “the minimum constitutional guarantees available to the Child.” Javier M.,

 4 2001-NMSC-030, ¶ 11. We then determine “what, if any, additional protections are

 5 available to the Child under the statute.” Id.

 6   {23}   With respect to these minimal constitutional guarantees, the Miranda warnings

 7 are typically required in circumstances of custodial interrogation. Id. ¶¶ 14-15. Our

 8 cases hold that “[a]n individual is subject to custodial interrogation when he or she

 9 lacks the freedom to leave to an extent equal to formal arrest.” Id. ¶ 18. The threshold

10 question in determining whether a person is in custodial interrogation is whether there

11 were “any words or actions on the part of the police . . . that the police should know

12 are reasonably likely to elicit an incriminating response from the suspect.” Rhode

13 Island v. Innis, 446 U.S. 291, 301 (1980).

14   {24}   While the United States Supreme Court has yet to consider the Fifth

15 Amendment rights of juvenile probationers, it considered the rights of adult

16 probationers in Murphy, 465 U.S. at 422. The Murphy Court determined that

17 probation officers are not required to provide Miranda warnings to adult probationers

18 who are not in custody. Id. at 429-30, 433. Because probation meetings do not


                                              11
 1 routinely give rise to the coercive pressures of a custodial interrogation, an adult

 2 probationer’s unwarned statements to a probation officer can be admitted in a

 3 subsequent criminal prosecution. See id. at 422, 433, 440. The Fifth Amendment

 4 forbids, however, a state from compelling self-incriminating statements as a condition

 5 of probation and then using the statements to prosecute a new offense. Id. at 435 n.7;

 6 cf. United States v. Von Behren, 822 F.3d 1139, 1141 (10th Cir. 2016) (concluding

 7 that the Fifth Amendment was violated by requiring a probationer to submit to a lie

 8 detector test as a condition of supervised release and threatening to revoke it for

 9 invoking the privilege against self-incrimination). Here, because neither party

10 contends that the events at the juvenile probation office amounted to a custodial

11 interrogation, or that the statement was compelled over Filemon’s objection, we

12 assume, without deciding, that the statement is admissible under the Fifth

13 Amendment. This does not preempt our analysis of whether the statement is

14 admissible under Section 32A-2-14, because the statute bestows greater protection

15 to youth than the Fifth Amendment requires. Javier M., 2001-NMSC-030, ¶¶ 24, 37.

16   {25}   Unlike Miranda, “Section 32A-2-14 does not require that a child be subject to

17 custodial interrogation in order for the protections of the statute to come into force.”

18 Javier M., 2001-NMSC-030, ¶ 32. We have interpreted Section 32A-2-14 as requiring


                                              12
 1 a child to be warned of the statutory right against self incrimination when subject to

 2 a limited scope encounter known as an “investigatory detention.” Javier M., 2001-

 3 NMSC-030, ¶ 38.

 4   {26}   Investigatory detentions are “substantially less coercive than custodial

 5 interrogations.” Id. ¶ 19. For example, a traffic stop is an investigatory detention

 6 because it is brief, temporary, and “not so inherently coercive” as to compel a typical

 7 person to self-incriminate. Id. We first determined that a child was subject to an

 8 investigatory detention in the context of police questioning. See id. ¶ 40. In Javier M.,

 9 a police officer removed a child from a party to question him about underage

10 drinking. Id. ¶¶ 2-4, 20. There was no custodial interrogation because the encounter

11 was not coercive and the child was not “overpowered by police presence.” Id. ¶¶ 20-

12 21. Nevertheless, the child was (1) suspected of delinquent act; (2) questioned; and

13 (3) not free to leave. Id. ¶ 20. Given these circumstances, we determined that the child

14 was in investigatory detention and entitled to be advised of his right to remain silent.

15 Id. ¶ 38.

16   {27}   In addition to being less coercive than custodial interrogations, investigatory

17 detentions are less adversarial. Id. ¶ 22. Unlike custodial interrogations, investigatory

18 detentions are not “police dominated” and the child is not “overpowered by police


                                              13
 1 presence.” Id. ¶ 21 (internal quotation marks and citation omitted). There is no

 2 requirement that the child be “swept from familiar surroundings into police custody,

 3 surrounded by antagonistic forces, and subjected to the techniques of

 4 persuasion . . . so that the individual feels under compulsion to speak.” Antonio T.,

 5 2015-NMSC-019, ¶ 14 (omission in original) (alteration, internal quotation marks,

 6 and citation omitted). Rather, a child is subject to an investigatory detention when

 7 merely suspected of having committed an offense and questioned in circumstances

 8 under which the child is not free to leave. See Javier M., 2001-NMSC-030, ¶¶ 34-35,

 9 38.

10   {28}   While the district court did not expressly recognize that Filemon was in an

11 investigatory detention in Supervisor Medina’s office, it did find that McNiel was

12 “holding” Filemon until police arrived, that McNiel was actively investigating

13 Filemon, and that the statement was elicited. There was substantial evidence to

14 support these findings, which lead us to conclude that Filemon was in investigatory

15 detention. The district court also concluded that Section 32A-2-14 is not limited to

16 statements elicited by police officers. We agree.

17   {29}   Filemon was suspected of committing a new offense, other than that for which

18 he was on probation. See Javier M., 2001-NMSC-030, ¶¶ 34-35 (“As a prerequisite


                                             14
 1 to requiring that a child be advised of his or her rights under Subsection (C), the

 2 Child must be either ‘alleged’ or ‘suspected’ of being a delinquent child.”). Whether

 3 a child was ‘suspected’ of delinquent activity for purposes of Section 32A-2-14(C)

 4 is evaluated using an objective standard. Javier M., 2001-NMSC-030, ¶ 35. Upon

 5 hearing Filemon’s statement in the lobby, it was objectively reasonable for McNiel

 6 and Supervisor Medina to conclude that Filemon had committed a new delinquent

 7 offense. This is obvious given that McNiel was aware of a shooting and that a suspect

 8 was acquainted with Filemon. Thus, Filemon was suspected of committing a

 9 delinquent act by the time the probation officers escorted him to Supervisor Medina’s

10 office. See id. ¶¶ 20-21.

11   {30}   Once in Supervisor Medina’s office, Filemon was questioned about a new

12 offense. See Antonio T., 2015-NMSC-019, ¶ 27. McNiel asked, “[A]re you here to

13 confess about the drive-by shooting,” a question which was reasonably likely to

14 reveal incriminating information. See Javier M., 2001-NMSC-030, ¶ 52 (Minzner, J.,

15 specially concurring). This interaction went beyond a routine meeting regarding

16 Filemon’s compliance with his conditions of probation and became investigatory

17 when McNiel prompted Filemon to reveal incriminating information about an offense

18 for which he was not already on probation. See, e.g., State v. Taylor E., 2016-NMCA-


                                            15
 1 100, ¶¶ 23-24, 385 P.3d 639 (holding that a probation officer was not required to give

 2 Miranda warnings before asking routine questions relating to probationary status).

 3 Supervisor Medina shared the information with the police, thereby serving as a

 4 conduit to the criminal investigation.

 5   {31}   Filemon was not free to leave Supervisor Medina’s office. Javier M., 2001-

 6 NMSC-030, ¶ 38 (stating that Section 32A-2-14(C) applies “when a child is seized

 7 pursuant to an investigatory detention and not free to leave”). To determine whether

 8 a child is free to leave, we examine “all of the factual circumstances,” including “(1)

 9 the conduct of the police, (2) the person of the individual citizen, and (3) the physical

10 surroundings of the encounter.” Jason L., 2000-NMSC-018, ¶ 15 (internal quotation

11 marks and citation omitted). Filemon’s youth is of importance in determining whether

12 he was free to extract himself from the encounter. See id. ¶ 18; see also Javier M.,

13 2001-NMSC-030, ¶ 37 (citing children’s “immaturity and susceptibility to

14 intimidation” as a reason why they must be advised of their rights during an

15 investigatory detention); Rivas, 2017-NMSC-022, ¶¶ 42-43 (describing a child’s

16 vulnerability in the context of interrogation).

17   {32}   While Filemon entered the probation office of his own volition, the nature of

18 the encounter changed when he made the initial voluntary statements in the lobby.


                                              16
 1 The probation officers isolated Filemon by escorting him through a locked door and

 2 down a hallway to a supervisor’s office in the interior of the building. See Javier M.,

 3 2001-NMSC-030, ¶ 18. Though Filemon was not a stranger to the probation office,

 4 he knew that police were on their way. We are unpersuaded that a child in Filemon’s

 5 position would feel free to extract himself from this situation, and for this reason

 6 conclude that he was not free to leave.

 7   {33}   Section 32A-2-14 is not limited to police questioning, as the State asserts. The

 8 presence of a police officer is relevant, but not dispositive, to determining whether

 9 a child is in investigatory detention. See Antonio T., 2015-NMSC-019, ¶¶ 24-27. In

10 Antonio T., we held that Section 32A-2-14 applied to questioning by a school

11 principal. Id. ¶ 27. The presence of a police officer added an element of coercion that

12 is not usually present in a school disciplinary proceeding; but perhaps more

13 importantly, granted access to evidence used to prosecute a delinquent offense. Id.

14 The protections of Section 32A-2-14 were brought to bear because the evidence was

15 used to prosecute the child. The same result pertains when the statement is elicited

16 by probation officers and used to prosecute a new offense.

17   {34}   The Court of Appeals held that a child’s unwarned statements to his probation

18 officer were admissible for the limited purpose of a probation revocation proceeding


                                               17
 1 in Taylor E., 2016-NMCA-100, ¶ 19. As the State contends here, the Court of

 2 Appeals noted that requiring probation officers to issue Miranda warnings could

 3 “transform[] a relationship intended to be rehabilitative . . . into an adversarial

 4 relationship[.]” Id. ¶¶ 47-48, 65. The admission of the statements did not turn on the

 5 nature of the relationship, however. See id. ¶¶ 14-15. Rather, the statements were

 6 admissible because they were elicited in a routine meeting and not used to prosecute

 7 a new offense. See id. ¶¶ 23-24. The Court of Appeals emphasized the distinction

 8 between probation revocation hearings, in which the prosecution has already

 9 occurred, and a new prosecution in which the Fifth Amendment is at stake. Id. ¶¶ 14-

10 15. Unlike Taylor E., Filemon’s encounter with the probation officers was far from

11 routine, and the statement is being introduced to prosecute Filemon for a new offense.

12 This distinguishes the situation from the introduction of a statement in a probation

13 revocation hearing. It is the use of the statement to prosecute a new offense that

14 implicates fundamental concerns against self-incrimination.

15   {35}   We conclude that Filemon was subject to an investigatory detention for

16 purposes of Section 32A-2-14, and the unwarned statement to his probation officers

17 cannot be used to prosecute a new offense. The absence of a police officer does not

18 bar this result where the statements were elicited in an investigatory detention and


                                             18
 1 offered in a new criminal case. For this reason, we affirm the district court’s

 2 suppression of the statement.

 3 B.       The Post-Miranda Statement Is Inadmissible Under Seibert

 4   {36}   Filemon was transported from the juvenile probation office to the Silver City

 5 Police Department. At the police department, Captain Hernandez was informed that

 6 Filemon was there to speak to him. Captain Hernandez turned on his recorder and

 7 escorted Filemon and his mother to his office, where he proceeded to interview

 8 Filemon in the presence of the detective assigned to the case, Detective Castillo.

 9 Captain Hernandez did not inform Filemon of his Miranda rights. Once Captain

10 Hernandez elicited a full, detailed statement from Filemon, he informed Filemon that

11 he was going to be detained. Immediately following this interview, Captain

12 Hernandez directed Filemon to repeat the statement to Detective Castillo. Detective

13 Castillo took Filemon and his mother into the interview room, gave Filemon his

14 Miranda warnings, and obtained a second, detailed statement.

15   {37}   The district court suppressed both statements elicited at the police department.

16 The State appeals the suppression of the post-Miranda statement. We affirm the

17 district court’s suppression of the statement because the midstream Miranda warning

18 was ineffective in informing Filemon of his Miranda rights. Seibert, 542 U.S. at 617.


                                               19
 1   {38}   It is well-established that before any person is the subject of a custodial police

 2 interrogation, the suspect must be advised of his or her Miranda rights. 384 U.S. at

 3 444. Miranda is intended to protect a suspect’s constitutional right against

 4 self-incrimination and requires that, for a statement to be admissible at trial, the

 5 suspect be advised of the right and the officer obtain a knowing, intelligent, and

 6 voluntary waiver of the suspect’s right to self-incrimination. Id. at 468. A valid

 7 waiver is made free from “intimidation, coercion, or deception” and “with a full

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

 9 the decision to abandon it.” Moran v. Burbine, 475 U.S. 412, 421 (1986).

10   {39}   It is undisputed that Filemon was subject to a custodial interrogation when

11 Captain Hernandez interviewed him, triggering the requirement of Miranda warnings.

12 See 384 U.S. at 467. Because Filemon was at this point firmly in police custody and

13 not provided with his Miranda warnings, the State concedes that the unwarned

14 statement to Captain Hernandez was properly suppressed. However, the State argues

15 that the district court erred in suppressing Filemon’s post-Miranda statement to

16 Detective Castillo. The State cites Oregon v. Elstad, and argues that Filemon’s

17 post-Miranda statement is admissible because his pre- and post-Miranda statements

18 were voluntary. 470 U.S. 298, 309 (1985) (stating that Miranda does not preclude the


                                                20
 1 admission of a statement that is unwarned but voluntary and uncoerced).

 2   {40}   We disagree. First, the State places improper emphasis on the voluntariness of

 3 the statements elicited at the police station. See Dickerson, 530 U.S. at 436

 4 (overruling a statute that eliminated Miranda’s warning requirement and designated

 5 “voluntariness as the touchstone of admissibility”). The touchstone question is not

 6 whether a statement was voluntary, but whether the Miranda warnings were adequate

 7 to inform the suspect of his or her rights. See Seibert, 542 U.S. at 608-09. The

 8 Miranda warnings given to Filemon were not adequate to inform him of his rights.

 9 Second, the manner in which the Miranda warnings were given rendered the

10 statement elicited by Detective Castillo presumptively coerced. Therefore, the district

11 court’s suppression of the statements was proper.

12   {41}   The United States Supreme Court has decided two cases relevant to the

13 discussion of whether a warned statement is admissible following an unwarned

14 statement: Elstad and Seibert.

15   {42}   The question in Elstad was whether a suspect’s post-Miranda statement was

16 admissible after the suspect had already made an incriminating statement to a police

17 officer. 470 U.S. at 300. In Elstad, two officers went to a suspect’s house with an

18 arrest warrant. Id. One officer sat down with the suspect in his living room and asked


                                              21
 1 if the suspect knew the victim. Id. at 301. The suspect said he did, and was aware that

 2 the victim had been burglarized. Id. When the officer stated that he felt that the

 3 suspect was involved, the suspect stated: “Yes, I was there.” Id. (internal quotation

 4 marks omitted). The suspect had not been advised of his rights. Id. The officer did not

 5 continue to question the suspect, but instead escorted the suspect to a patrol car, and

 6 took him to the sheriff’s headquarters. Id. Approximately an hour later, the suspect

 7 was given his Miranda warnings. Id. The suspect said he understood his rights, still

 8 wished to speak to the officers, and then gave a full statement. Id. at 301-02.

 9 Subsequently, the suspect was charged with burglary and moved to suppress his

10 second statement, arguing that the first unwarned statement “let the cat out of the

11 bag” and tainted his second statement. Id. at 302 (internal quotation marks and

12 citation omitted). The Elstad Court held that while the first statement was

13 inadmissible, the second statement was admissible, because neither statement was

14 coerced, and the second statement was obtained after careful administration of

15 Miranda warnings and after a voluntary waiver of the suspect’s rights. Id. at 310-11,

16 17-18.

17   {43}   The Court revisited the question of whether a second, warned statement was

18 admissible after a first, unwarned statement in Seibert. 542 U.S. at 606-07. The


                                             22
 1 plurality in Seibert limited Elstad to its facts and held that the relevant question was

 2 not the voluntariness of the two statements, but whether the Miranda warnings given

 3 after the first statement were effective in informing the suspect of her constitutional

 4 rights. Seibert, 542 U.S. at 615. In Seibert, the suspect was arrested, taken to the

 5 police station, and questioned for an extended period of time prior to being given her

 6 Miranda warnings. Id. at 604-05. The police officer elicited a full confession from the

 7 suspect. Id. The suspect was then given a twenty-minute break, Mirandized, and

 8 questioned a second time by the same police officer in the same location. Id. at

 9 604-05, 616. In the second interview, the officer asked the suspect to repeat the

10 information she had given in her first statement and reminded the suspect of what she

11 had said prior to being advised of her rights. Id.

12   {44}   In distinguishing Seibert’s facts from Elstad’s, the Court listed facts relevant

13 to determining whether midstream Miranda warnings are effective in informing a

14 suspect of his or her constitutional rights:

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



                                               23
 1 Seibert, 542 U.S. at 615. The Seibert Court determined that the first and second

 2 interviews were effectively continuous: both were held in the same location, the break

 3 between the first and second interview was limited, and the police officer referenced

 4 statements the suspect made during the first interview while conducting the second

 5 interview. Id. at 604-05, 616-17. Furthermore, the officer did not remedy the initial

 6 failure to warn by informing the suspect that her first statement could not be used

 7 against her at trial. Id. at 616. The Seibert Court held that the suspect’s constitutional

 8 rights were violated because the Miranda warnings given were ineffective in

 9 informing the suspect that she had a genuine right to remain silent and therefore, the

10 post-Miranda statement was inadmissible. Seibert, 542 U.S. at 617.

11   {45}   In distinguishing the Seibert interrogation from the interrogation in Elstad, the

12 Seibert Court noted that the Elstad questioning was “a new and distinct experience,”

13 such that “the Miranda warnings could have made sense as presenting a genuine

14 choice whether to follow up on the earlier admission.” Seibert, 542 U.S. at 616. The

15 scope of the pre-Miranda questioning in Elstad and Seibert was categorically

16 different. In Elstad, the police officer asked the suspect one question, and the

17 interrogation immediately ceased when the suspect gave an incriminating statement.

18 470 U.S. at 301-02. In Seibert, the suspect was questioned extensively and gave a full


                                               24
 1 confession before being Mirandized. 542 U.S. at 604-05.

 2   {46}   This case bears notable similarities to Seibert. Like Seibert, Filemon was

 3 questioned extensively and gave a full confession before he was given his Miranda

 4 warnings. After Detective Castillo gave Filemon the Miranda warnings, Detective

 5 Castillo told Filemon to “start from the beginning like you did a while ago,” asking

 6 him to repeat his prior confession, and ensuring that the content of the second

 7 statement completely overlapped with the content of the first statement. The lack of

 8 break between the first and second interviews, and the fact that Detective Castillo was

 9 present for both, further contributed to the continuous nature of the two interviews.

10 Additionally, rather than taking any curative measures to ensure that Filemon

11 understood that the pre-Miranda confession he gave to Captain Hernandez was

12 inadmissible, Detective Castillo did the opposite and told Filemon and his mother that

13 the Miranda warnings were merely a “formality.” The Seibert Court recognized that

14 “when Miranda warnings are inserted in the midst of coordinated and continuing

15 interrogation, they are likely to mislead and deprive a defendant of knowledge

16 essential to his ability to understand the nature of his rights and the consequences of

17 abandoning them.” 542 U.S. at 613-14 (alteration, internal quotation marks, and

18 citation omitted). This is precisely what happened here. The Miranda warnings given


                                             25
 1 to Filemon by Detective Castillo were not adequate to inform him of his

 2 constitutional rights as required by Miranda jurisprudence.

 3   {47}   Given the manner in which the interview was conducted, it would have been

 4 unreasonable for Filemon to believe that he had a genuine right to remain silent.

 5 While Filemon’s mother was present, there is no evidence that she herself understood

 6 the midstream Miranda warnings. She did not counsel or advise Filemon during

 7 either of the interviews and left it up to him to decide whether he wanted to answer

 8 the officers’ questions. Filemon had already made a full confession to Captain

 9 Hernandez before he was advised of his rights. Furthermore, when Detective Castillo

10 began to interview Filemon, he told Filemon that he was “gonna go the same way”

11 as Captain Hernandez and that he was just “finishing up” where Captain Hernandez

12 left off, giving the impression that the interview was just a continuation of the

13 interview conducted by Captain Hernandez. Detective Castillo did not make it clear

14 that Filemon could stop talking. Because of the coercive tactics employed by Captain

15 Hernandez and Detective Castillo, Filemon was not provided with a “real choice

16 between talking and not talking.” See id. at 601. The State did not meet its burden in

17 proving that the midstream Miranda warnings were sufficient to inform Filemon of

18 his right against self-incrimination.


                                             26
 1   {48}   The Miranda warnings are not a mere formality. Miranda warnings given after

 2 a confession are likely to be “ineffective in preparing the suspect for successive

 3 interrogation, close in time and similar in content.” Id. at 613. Police must take the

 4 utmost care to ensure that the suspect not only understands the meaning of the

 5 Miranda warnings, but also understands the nature of the rights being abandoned and

 6 the consequences of the decision to abandon them. See Moran, 475 U.S. at 421.

 7 Miranda warnings must be given in a manner that is clearly sufficient to grant the

 8 suspect an awareness of the right so the suspect can make a knowing, intelligent and

 9 voluntary choice to speak. See Miranda, 384 U.S. at 467. The tactics employed by

10 Captain Hernandez and Detective Castillo were presumptively coercive and

11 eviscerated the protections envisioned by Miranda, rendering the warnings—when

12 they were finally given—ineffective to inform Filemon that he had a right not to

13 incriminate himself. We uphold the district court’s determination that the statement

14 elicited by Detective Castillo is inadmissible. Because the statement is inadmissible

15 as a matter of federal law, it is also inadmissible under Section 32A-2-14. See Javier

16 M., 2001-NMSC-030, ¶ 11.

17   {49}   We affirm the district court’s suppression of the two contested statements and

18 remand for further proceedings consistent with this opinion.


                                              27
1   {50}   IT IS SO ORDERED.


2                                        ______________________________
3                                        BARBARA J. VIGIL, Justice


4 WE CONCUR:



5 ___________________________________
6 JUDITH K. NAKAMURA, Chief Justice



7 ___________________________________
8 PETRA JIMENEZ MAES, Justice



 9 ___________________________________
10 EDWARD L. CHÁVEZ, Justice



11 ___________________________________
12 CHARLES W. DANIELS, Justice




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