Opinion
111,217.
12-24-2014
STATE of Kansas, Appellant, v. Hermelindo Cano ESPINOBARROS, Appellee.
Mark A. Simpson, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant. Branden Smith, of Smith Legal, LLC, of Lawrence, for appellee.
Mark A. Simpson, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant.
Branden Smith, of Smith Legal, LLC, of Lawrence, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
This appeal concerns whether statements Hermelindo Cano Espinobarros (Cano) made during a videotaped police interview will be admissible at trial on charges of aggravated indecent liberties and patronizing a prostitute that the State filed against him based on those statements. The district court found the statements inadmissible because Cano's waiver of his Miranda rights before he made the statements was not voluntary, knowing, and intelligent. The State appeals, arguing in pertinent part that any problems with Miranda are irrelevant because Cano was not in custody when he voluntarily spoke with the police, so Miranda warnings were not required. We agree, so we reverse the district court's suppression ruling and remand for further proceedings.
Background
Whether Miranda warnings must be given before police interview someone is an inherently fact-based inquiry. Accordingly, we begin with a discussion of the circumstances that led the police to interview Cano.
On July 1, 2013, Lawrence Police Officers Fowler, Garcia, and Johnson knocked on the door of Cano's apartment. They were there to follow-up on a human trafficking investigation that Fowler was conducting. As part of that investigation, Fowler interviewed 15–year–old E.M. in late January 2013. E.M. told Fowler that she and her underage friend were provided alcohol and willingly had sex for money with two unidentified adult Mexican men in Cano's apartment.
Cano does not speak English, but the officers said they observed no problems when Cano conversed with Officer Garcia in Spanish after inviting the officers inside the apartment. With Garcia translating, Fowler generally explained to Cano and his roommate that they were there as part of an investigation that had been linked to their apartment. No further details were given. Fowler asked if the men would be willing to come to the police station to answer some questions, ensuring them they were not under arrest and would not be arrested afterwards. Cano and his roommate agreed to the request if they could get a ride. The officers obliged and gave Cano and his roommate rides in separate police cars to the police station.
Once they got to the police station, Cano was taken to an interview room so Fowler could question him, with Garcia again acting as an interpreter. Before asking any questions, Fowler read Cano his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (holding that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way,” the individual “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires”); State v. Morton, 286 Kan. 632, 638–39, 186 P.3d 785 (2008) (discussing purpose of Miranda warnings). Once Garcia finished, Cano indicated that he was confused by some of the rights. Cano then told Garcia for the first time that his first language is “Mixteco,” and he “ ‘really and truly [does not] speak Spanish.’ “ Mixteco (also referred to as Mixtec) is a language spoken by the indigenous people inhabiting the La Mixteca region in southern Mexico. See Gonzalez v. State, 429 Md. 632, 638 n. 1, 57 A.3d 484 (2012). Apparently there are both differences and similarities between Mixteco and Spanish. Garcia was not familiar with Mixteco. But he did not feel there were any significant language barriers in light of his fluent conversations in Spanish with Cano up to that point. Garcia surmised instead that Cano's confusion stemmed from being given too much information all at once. So Garcia started over, breaking the Miranda warnings down line-by-line in Spanish, asking Cano after each line whether he understood and answering any questions Cano had. Cano eventually told Garcia he understood each of the Miranda warnings and said he was willing to answer questions without an attorney present. Once the officers asked Cano about E.M.'s specific allegations, Cano initially denied any knowledge or involvement. However, he eventually made statements implicating him as the person E.M. told Fowler she had sex with for money in the apartment. At the close of the interview, Cano was allowed to leave.
Based on Cano's statements made during the interview, the State charged him with two crimes: (1) aggravated indecent liberties with a child; and (2) patronizing a prostitute. Cano moved to suppress his statements made during the police station interview. After conducting a hearing over 3 separate days, the district court granted Cano's motion to suppress. In support, the district court rejected the State's suggestion that Miranda warnings were not required, finding a reasonable person in Cano's situation would not have felt free to leave. The court then found Cano did not voluntarily, knowingly, and intelligently waive his Miranda rights because those rights had not been adequately explained to him by Garcia. The State appeals.
Analysis
The State's five issues on appeal essentially boil down to two questions:
(1) Were the police required to comply with the dictates of Miranda, 384 U.S. 436, because they conducted a custodial interrogation of Cano?
(2) If so, did Cano make a knowing, intelligent, and voluntary waiver of his rights embodied in the Miranda warnings before he made the inculpatory statements?
Again, the district court answered “yes” to question (1) and “no” question (2). We begin with the State's challenge to the district court's answer to the first question because if we agree with the State, then the remaining issues surrounding the Miranda warnings are moot.
Our review of the suppression ruling is bifurcated.
Once Cano moved to suppress his statements, the State bore the burden of proving they were admissible by a preponderance of the evidence. See State v. Brown, 285 Kan. 261, 272, 173 P.3d 612 (2007). Our bifurcated standard for reviewing the district court's ruling that the State did not meet its burden in this case is well known. First, we must determine whether there is substantial competent evidence to support the district court's factual findings. See State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). “Substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion.”289 Kan. at 340. In so reviewing, we cannot reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. See Brown, 285 Kan. at 272. Second, we conduct de novo review of the district court's legal conclusions drawn from those facts. See Schultz, 289 Kan. at 340.
A two-part inquiry applies to determine whether a suspect is in custody for purposes of Miranda warnings.
The first of the State's challenges to the merits of the district court's suppression ruling concerns the district court's finding that Cano was in custody when he was interviewed by Fowler and Garcia. This is because “law enforcement officers are not required to administer Miranda warnings to everyone questioned, only to those who are (1) in custody and (2) subject to interrogation.” State v. Warrior, 294 Kan. 484, 496, 277 P.3d 1111 (2012) (citing Miranda, 384 U.S. 436 ). See generally Annot., 29 A.L.R. 6th 1 (discussing what constitutes “custodial interrogation” under Miranda where adult suspects appear at the request of law enforcement). “A custodial interrogation is defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.’ Miranda, 384 U.S. at 444.” Warrior, 294 Kan. at 496. It “is distinguished from an investigatory interrogation, which occurs as a routine part of the fact-finding process before the investigation has reached the accusatory stage.” 294 Kan. at 496.
Courts conduct a two-part inquiry in determining whether a custodial interrogation occurred.
First, a court looks to the circumstances surrounding the interrogation, including:
“(1) the interrogation's place and time; (2) the interrogation's duration; (3) the number of police officers present; (4) the conduct of the officers and the person subject to the interrogation; (5) the presence or absence of actual physical restraint or its functional equivalent, such as drawn firearms or a stationed guard; (6) the status of the person being questioned as a suspect or a witness; (7) whether the person being questioned was escorted by the police to the interrogation location or arrived under his or her own power; and (8) the interrogation's result, i.e., whether the person was ultimately allowed to leave, detained further, or arrested.” Schultz, 289 Kan. at 340–41.
Importantly, “[n]o one factor outweighs another, nor do the factors bear equal weight. Every case must be analyzed on its own particular facts.” 289 Kan. at 341. This court's review of the district court's factual findings under this first step is generally limited to determining whether substantial competent evidence supports them. See 289 Kan. at 341.
Second, a court must decide “whether the totality of those circumstances would have led a reasonable person to believe he or she was not at liberty to terminate the interrogation.” Schultz, 289 Kan. at 340–41. Under this step, this court conducts de novo review of the district court's legal conclusion drawn from the totality of the circumstances. See 289 Kan. at 341.
The district court cited the following circumstances in support of its conclusion under the totality of the circumstances that a reasonable person in Cano's situation would not have felt free to leave:
• The interrogation took place at the police station.
• The interrogation was not “terribly lengthy.”
• Only Fowler and Garcia were present, and neither acted in bad faith or attempted in any way to trick Cano.
• Cano was not physically restrained.
• There were no guns drawn or guards posted.
• Cano was taken to the police station upon a request by the police.
• Cano does not speak English, and Spanish is not his first language.
• Cano is from Mexico, and the laws and legal concepts of this country—particularly our court system—are foreign to him.
• Cano left school in Mexico at the age of 12.
• Cano was told he was not under arrest and the police would take him home after they were done talking to him, which could take all day.
• The officers told Cano he could take a call from his wife but stressed they would talk more afterwards.
The State concedes these findings are supported by substantial competent evidence but raises two legal challenges to the district court's legal conclusion based on these circumstances.
First, the State contends that the district court inappropriately focused on subjective rather than objective circumstances when it considered Cano's language skills, his background, his lack of familiarity with our legal system, and his lack of education. Indeed, “[t]he determination of custody for purposes of Miranda is determined by the objective circumstances, not by the subjective view harbored by the person being questioned.” Morton, 286 Kan. at 644–45 (citing Yarborough v. Alvarado, 541 U.S. 652, 667, 124 S.Ct. 2140, 158 L.Ed.2d 938 [2004] ). In Morton, our Supreme Court discussed the importance of this distinction between the objective Miranda custody inquiry and other types of inquiries, such as the voluntariness of a confession, which are based on the mindset and characteristics of a particular suspect:
“An objective test ‘furthers “the clarity of [the Miranda ] rule, [citation omitted] ensuring that the police do not need ‘to make guesses as to [the circumstances] at issue before deciding how they may interrogate the suspect. [Citation omitted.]’ “ Alvarado, 541 U.S. at 667. Allowing the suspect's individual characteristics to be a part of the custody analysis, even if styled as an objective test—what would a reasonable person of the suspect's age, experience level, etc. have believed—would ruin this clarity, as it would require police officers to consider a suspect's mindset when faced with deciding whether they are required to give Miranda warnings. Alvarado, 541 U.S. at 667–69.” Morton, 286 Kan. at 645.
So “the proper analysis of whether a person is ‘in custody’ is an objective analysis that ignores subjective beliefs, personality, and mental capacity of the defendant. The proper analysis is how a reasonable person in the suspect's position would have understood the situation.” State v. William, 248 Kan. 389, 405, 807 P.2d 1292 (1991).
Further explaining, this court finds that in Thatsaphone v. Weber, 137 F.3d 1041, 1045 (8th Cir.1998), the Eighth Circuit discussed how a suspect's lack of English proficiency might play a role in the objective “in custody” calculus. This decision arguably lends some guidance here, so its holding is discussed in detail. The case began when Thatsaphone, a Laotian immigrant, voluntarily went to the police station following a telephone conversation with police and was interviewed about criminal allegations made against him. During the 20–minute interview, which was conducted entirely in English, Thasaphone made inclupatory statements. There was never any indication during the interview or an ensuing evidentiary hearing on a motion to suppress that the English language was any kind of barrier to Thatsaphone's understanding of the situation. 137 F.3d at 1043–44.
The case was before the Eighth Circuit on the State's appeal from the federal district court's granting of a writ of habeas corpus after the state court affirmed Thatsaphone's conviction. Following another evidentiary hearing, the federal district court granted the writ upon finding the “interview was custodial interrogation, at which Miranda warnings were constitutionally required, because of Thatsaphone's ‘demonstrated limitations in understanding spoken English’ and his ‘lack of familiarity with the American legal system .’ “ 137 F.3d at 1044.
On review of that writ, the Eighth Circuit deemed Thatsaphone's understanding of the English language “the central issue in the case.” 137 F.3d at 1045. The Eighth Circuit “agree[d] with the district court that a suspect's language skills may be relevant to the ‘in custody’ issue.” Thatsaphone, 137 F.3d at 1045 (citing United States v. Ceballos, 812 F.2d 42, 48 [2d Cir.1987] ). The Eighth Circuit then reasoned:
“But the question is not whether Thatsaphone subjectively believed that he was in custody because he did not understand [the interrogating] [d]etective ['s] cautions to the contrary. The district court erred in treating this as a subjective issue.... ‘[T]he initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. ’ [Stansbury v. California, ] 511 U.S. [318,] 323[, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) ] (Emphasis added.).
“Thus, the ultimate issue is whether a reasonable police officer conducting [the interrogating] [d]etective['s] otherwise non-custodial interview would have given Miranda warnings because he realized that the questioning would be perceived by Thatsaphone as custodial due to his limited English language skills.” Thatsaphone, 137 F.3d at 1045.
The Eighth Circuit concluded “Thatsaphone's limited understanding of the English language provide[d] no objective basis to change [its] conclusion that [the] interview [in that case] was non-custodial.” 137 F.3d at 1046.
Cano concedes that the officers could not have known he left school in Mexico at age 12 but otherwise responds that the State's position concerning the district court's consideration of his particular circumstances too rigidly adheres to the previously listed circumstances for evaluating whether an interrogation is custodial. Noting those factors are nonexclusive, he insists it was proper for the district court to focus on these other circumstances because they were “clearly apparent” to the officers.
Cano is right that factors that are objectively apparent to officers may be included in the Miranda analysis. In J.D.B. v.. North Carolina, 564 U.S. ––––, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011), the United States Supreme Court held that a child's age should be considered under Miranda so long as the age was known to the officer “or would have been objectively apparent to any reasonable officer.” 131 S.Ct. at 2404.
Even so, there was not enough information objectively apparent to the officers here to conclude that Cano was in custody for Miranda purposes. Officers are not required to know what differences there may be between the legal systems in Mexico and here or how a person from Mexico might understand (or fail to understand) our court system. Nor were Cano's Spanish-language skills obviously so poor that a language deficit would have been objectively apparent to any reasonable officer.
Upon our de novo review of the remaining circumstances, without consideration of subjective factors, we hold under the totality of the circumstances that a reasonable person would have felt he or she was at liberty to terminate the interview and leave. A brief recap of those circumstances as gleaned from our independent review of the police's recorded interactions with Cano will drive home our point. While Cano may have been a suspect at the time of his police interview and was driven to the police station by the police upon his request because he had no transportation, our independent review of the video recording of his interview reveals: the interview lasted 1 hour and 8 minutes; Cano was never restrained, either actually or functionally; Fowler and Garcia both acted kindly when addressing Cano; when he received a phone call during the interview, the officers tried to accommodate him by offering to step out of the room; Cano was repeatedly reminded that he was free to leave at any time, and he was allowed to leave freely following the encounter with the officers. Although Cano was at the police station, that is not enough on these facts to make the interrogation custodial. See State v. Trussell, 289 Kan. 499, 507–08, 213 P.3d 1052 (2009) (citing cases in which defendants were interviewed at police station but not in custody for Miranda purposes).
Because we hold the encounter was not custodial under the totality of the circumstances, a Miranda waiver was not necessary. So any problem with the Miranda warnings or Cano's waiver is a moot issue. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) (explaining mootness doctrine, which recognizes that the court's role is to determine real controversies relative to the legal rights of persons and properties that are actually involved in the particular case properly brought before it and to adjudicate those rights so that the determination will be operative, final, and conclusive). Accordingly, we need not address the parties' remaining arguments regarding a Miranda waiver.
Cano's suppression motion in the district court also challenged the voluntariness of his statements to police. But the district court did not reach the voluntariness issue because it had already ruled in Cano's favor on the Miranda issue and, accordingly, had suppressed all of his statements to police.
Although the parties have briefed the voluntariness issue to us, that issue should first be addressed by the district court because that court may make additional factual findings in addressing it. Unlike the Miranda issue we have addressed here, in addressing the voluntariness issue, the district court may consider subjective factors such as the accused's mental condition, the accused's age, intellect, and background, and the accused's language fluency. See State v. Gibson, 299 Kan. 207, 215, 322 P.3d 389 (2014) ; State v. Fernandez–Torres, 50 Kan.App.2d ––––, 337 P.3d 691, 697–700, 2014 WL 5434105, at *7–10 (Kan.App.2014).
We must address one other issue raised on appeal by the State because it affects what the district court may properly consider on remand. After the video recording of Cano's interview was admitted into evidence, the district court appointed an independent expert, Shelley Bock, to prepare a translation from Spanish to English of the Spanish-language portions of the conversation. Bock has a Master's degree in Spanish translation. The State argues that the district court cannot appoint an independent expert; it contends that doing so violates the Code of Judicial Conduct. See Kan. Ct. R. 601B, Canon 2, Rule 2.9(C) (2014 Kan. Ct. R. Annot. 765). The State argues that the district court should have been limited to consideration of a written translation, prepared by the person who served as the interpreter for Cano's testimony, which the State had admitted into evidence.
We find nothing improper in the district court's action. The inherent power of a trial judge to appoint an expert to aid it in the just disposition of a case has long been recognized. See Scott v. Spanjer Bros., 298 F.2d 928, 930 (2d Cir.1962). The videotape with Spanish-language conversation in it had already been admitted in evidence. The district court (and any appellate court on review) needed an accurate and reliable translation of it. The State has not attempted to show in its brief that Bock's translation is in any way in error. Nor has the State suggested that Bock lacked the necessary qualifications to perform this translation work. Accordingly, the district court is free to consider all of the evidence, including Bock's translation, on remand.
The district court's suppression of Cano's statements is reversed and the case is remanded for further proceedings.
Reversed and remanded.