IN RE S.W. , 124 A.3d 89 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-FS-434
IN RE S.W., APPELLANT
Appeal from the Superior Court of the
District of Columbia
(DEL-155-12)
(Hon. Milton C. Lee, Jr., Trial Judge)
(Argued September 26, 2014 Decided September 17, 2015)
Chris Kemmitt, Public Defender Service, with whom James Klein, Jaclyn
Frankfurt, and Monica Douglas, Public Defender Service, were on the brief, for
appellant.
John W. Donavan, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General,
Rosalyn Calbert Groce, Deputy Solicitor General, and Janice Sheppard, Assistant
Attorney General, were on the brief, for the government.
Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and
EPSTEIN, Associate Judge of the Superior Court.1
Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.
Opinion concurring in part and dissenting in part by Associate Judge
EASTERLY at page 32.
Opinion concurring in part and dissenting in part by Associate Judge
EPSTEIN at page 50.
1
Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
2
BLACKBURNE-RIGSBY, Associate Judge: This case presents a “rare” instance
in which we conclude that “a self-incriminating statement was ‘compelled’ despite
the fact that the law enforcement authorities adhered to the dictates of Miranda [v.
Arizona, 384 U.S. 436, 467 (1966).]” Dickerson v. United States, 530 U.S. 428,
444 (2000). Specifically, we conclude that a juvenile’s confession during custodial
interrogation was involuntary, in spite of an effectively delivered Miranda warning
and a knowing and intelligent waiver of Miranda rights, and we reverse the trial
court’s adjudication of delinquency.2
Following a consolidated suppression hearing and bench trial, appellant
S.W., a fifteen-year-old juvenile, was adjudicated delinquent on four counts:
(1) carjacking, (2) attempted unauthorized use of a motor vehicle, (3) unlawful
entry of a motor vehicle, and (4) threats to do bodily harm.3 On appeal, appellant
2
Appellant argues that reversal is required because the trial court
committed constitutional error by admitting his confession and the government
cannot show “beyond a reasonable doubt” that the trial court did not rely on this
error in reaching its verdict. See Chapman v. California, 386 U.S. 18, 24 (1967).
The government does not argue otherwise and in fact, the trial court explicitly
relied upon appellant’s confession in convicting him, stating in its findings that
“[m]uch of [Ms. Dougall’s] testimony is supported by respondent’s statements to
the police.” Accordingly, we cannot find that the error was harmless, and reversal
is required.
3
See D.C. Code § 22-2803 (a)(1) (2012 Repl.); D.C. Code §§ 22-3215,
-1803 (2012 Repl.); D.C. Code § 22-1341 (2012 Repl.); and D.C. Code § 22-407
(2012 Repl.), respectively.
3
challenges the trial court’s denial of his motion to suppress statements that he made
during post-arrest interrogation. Appellant’s principal argument is that the
interrogating detective’s pre-Miranda remarks rendered the subsequent Miranda
warning ineffective as a matter of law and, consequently, that his confession must
be suppressed. Alternatively, appellant argues that the detective’s remarks
prevented him from making a knowing, intelligent, and voluntary waiver.
We hold that the interrogating detective delivered an effective Miranda
warning and that appellant made a knowing and intelligent waiver of his Miranda
rights, but that he did not do so voluntarily. In so holding, we avoid a per se rule
that either invalidates a Miranda warning as a matter of law when law enforcement
officials make pre-Miranda warning remarks, or that validates a Miranda warning
as a matter of law when law enforcement officials read the warning verbatim from
a waiver card. 4 We reinforce the necessity of looking holistically at every
custodial interrogation in reaching a conclusion specific to the facts presented. No
“talismanic incantation” is necessary to satisfy Miranda. Missouri v. Seibert, 542
U.S. 600, 611 (2004) (citation omitted). Nor will “mere recitation of the litany [of
rights]” suffice in every circumstance. Id. Rather, our inquiry is case-specific,
4
Indeed, we announce no per se rule whatsoever with regard to warnings,
as our dissenting colleague suggests. See Opinion of Easterly, J., at 43-44.
Instead, we specifically decline to do so, favoring a case-specific approach.
4
asking “whether the warnings reasonably convey to a suspect his [or her] rights as
required by Miranda.” Id. (internal quotation marks, citation, and alterations
omitted).
I. Factual Background
A. The Incident
At approximately 10:00 a.m. on January 22, 2012, Tiffany Dougall was
pumping gas into her car at a gas station on the corner of Benning Road and East
Capitol Street, Northeast, Washington, D.C. She had left the driver-side door ajar
with the keys in the ignition. Appellant approached Ms. Dougall’s car, sat in the
driver seat, and attempted to start the car. As appellant tried to close the car door,
Ms. Dougall pulled the door open and retrieved her keys, thwarting appellant’s
attempt. Appellant exited the car and Ms. Dougall called him a “stupid a--
[expletive],” to which he responded: “I should have shanked you. That’s what we
do around here.” Appellant then ran across the street and entered a metro station.
Within approximately twenty minutes, officers of the Metropolitan Police
Department (“MPD”) arrested appellant and brought him back to the scene where
Ms. Dougall identified him.
5
B. The Interview
MPD Detective Howard Howland questioned appellant at the MPD Juvenile
Processing Center in a video-recorded session that began just before midnight and
lasted approximately eighteen minutes. Appellant’s right foot was cuffed to the
floor of the interview room, but his hands remained free. Before issuing a
Miranda warning, Detective Howland introduced himself and asked appellant if he
knew why he was under arrest. 5 When appellant did not respond, Detective
Howland explained:
I know you know why you’re up here, so I ain’t gonna
play the ‘I don’t know’ crap, all right? I’m gonna give
you an opportunity to give your version of what
happened today, because . . . I stand between you and the
lions out there. . . . [W]e have a lot of things going on out
there, and they’re gonna try and say that you did it all.
Okay? And I think what happened today was just a one-
time thing. But before I came out here everybody said
. . . you did a whole bunch of stuff, but in order for us to
have a conversation, I have to read you your rights and
you have to waive your rights. If you answer no to any
of the questions I ask you after I read you your rights,
that’s all, I mean, I can’t have the interview, okay?
(Emphasis added)
5
Appellant did not respond to this question. Thus, any potential error in
asking this question before issuing a Miranda warning was harmless. See Di
Giovanni v. United States, 810 A.2d 887, 894 (D.C. 2002).
6
Detective Howland read appellant his Miranda rights from a waiver card,
and appellant, who had not spoken until this point, waived these rights verbally and
in writing. 6 Appellant’s demeanor and tone remained calm as he subsequently
confessed to entering Ms. Dougall’s car with the intention of taking it. After the
confession, Detective Howland told appellant that he had spoken with appellant’s
grandmother, who told Detective Howland that she was worried about appellant,
that he had just been released from a group home, and that he had been “reported
missing.” Appellant began to cry at this point and explained that he had left the
group home because he had a “beef with a whole lot of people.” Detective
Howland stated, “[i]t sounds like you got a lotta anger” and “made some bad
choices,” then told appellant to consider how it feels “for [his] grandmother to see
[him] in court” or “locked up,” stating that people “who tried to do what
[appellant] did . . . get full of bullets.” Detective Howland then asked appellant
what he would do differently if he could do everything over, and appellant
responded “I wouldn’t have went to that car.”7
6
Specifically, appellant answered affirmatively when asked: (1) “Have you
read or had read to you the warning as to your rights?” (2) “Do you understand
these rights?” (3) “Do you wish to answer any questions?” and (4) “Do you wish to
answer any questions without having an attorney present?” Appellant provided his
signed waiver card with the record on appeal.
7
The video recording of appellant’s interrogation was included as part of
the record on appeal.
7
C. The Motion to Suppress and Trial
Appellant filed a motion to suppress the statements he made to Detective
Howland, alleging, inter alia, that he did not knowingly and voluntarily waive his
Miranda rights, and that the coercive circumstances of the interrogation rendered
his statements involuntary. During a hearing on the motion, the trial court viewed
the video recording of appellant’s interrogation and characterized Detective
Howland’s pre-Miranda remarks as a “very simple set of statements” that did not
violate “Miranda’s prophylactic rule”; in essence, informing appellant that “if you
want to talk, this is your opportunity, but you don’t have to.” The court described
these statements as an “age-old tactic” of detectives: sharing pieces of known
information to encourage a suspect to be forthcoming with additional information.
The court further noted that Detective Howland issued a complete Miranda
warning and remained an “appreciable distance” from appellant during the
conversation and that appellant did not ask follow up questions and appeared to
understand the warning.
In assessing the validity of appellant’s waiver, the trial court considered
factors pertaining to knowledge, intelligence, and voluntariness and concluded,
based on the totality of the circumstances, that Detective Howland’s remarks did
8
not invalidate appellant’s waiver. The trial court found no indication that appellant
was in distress or discomfort and it observed that the combination of Detective
Howland’s assurance that he could not talk to appellant unless appellant waived his
rights and appellant’s ready responses to Detective Howland’s questions indicated
a knowing, intelligent, and voluntary conversation. Furthermore, the court
observed that appellant talked freely, chose which questions to answer and which
to ignore, seemed lucid and aware of what was happening, and had no mental
health issues. Accordingly, the trial court concluded that appellant made the
decision to waive his Miranda rights “based on his own free will, rational thought,
[and] his own intellect,” and denied the motion to suppress. Following trial, the
court adjudicated appellant delinquent on all four counts. This appeal followed.
II. Discussion
On appeal from the denial of a motion to suppress on Miranda grounds, “we
must defer to the trial court’s findings of historical fact as long as they are not
clearly erroneous, and we must view the facts and the reasonable inferences that
may be drawn from them in the light most favorable to sustaining the court’s
ruling.” Dorsey v. United States, 60 A.3d 1171, 1190 (D.C. 2013). However, we
9
review the voluntariness of a Miranda waiver, a legal question, de novo. See id.;
In re M.A.C., 761 A.2d 32, 38 (D.C. 2000).
Miranda requires that police “adequately and effectively” warn a suspect of
his or her right to remain silent and to have an attorney present during custodial
interrogation if the suspect’s statements are to be admissible at trial. 384 U.S. at
467; Robinson v. United States, 928 A.2d 717, 725 (D.C. 2007) (citation omitted).
After receiving this warning, a suspect may opt to waive his or her rights.
Miranda, supra, 384 U.S. at 467, 470 (“No effective waiver of the right to counsel
during interrogation can be recognized unless specifically made after the warnings
. . . have been given.”). If a suspect opts to waive Miranda rights and later
challenges the admissibility of his or her post-waiver statements, the government
has the burden to show that the suspect’s waiver was “made knowingly,
intelligently, and voluntarily.” Di Giovanni, supra note 5, 810 A.2d at 892; see
Shreeves v. United States, 395 A.2d 774, 781 (D.C. 1978).
Appellant makes two arguments on appeal, which we address in turn:
(A) that Detective Howland’s pre-Miranda remarks rendered the subsequent
Miranda warning ineffective as a matter of law and, consequently, that appellant’s
10
confession must be suppressed, and (B) that his waiver of Miranda rights was not
knowing, intelligent, and voluntary.
A. The Validity of the Miranda Warning
Appellant contends that Detective Howland’s pre-Miranda warning remarks
were “embellishments” that conflicted with and confused Miranda by generally
failing to convey the adversarial nature of the interaction and specifically failing to
convey that the consequence of waiver may be conviction, rather than protection
from the “lions.” Embellishing the warning in this way constitutes trickery,
appellant continues, because the remarks falsely conveyed that appellant could not
have a conversation without waiving his rights and that he would be penalized if he
did not waive them. Accordingly, appellant argues that Detective Howland’s pre-
Miranda remarks rendered the Miranda warning that followed ineffective as a
matter of law.8
8
Appellant’s reliance on United States v. San Juan-Cruz to support this
argument is misplaced. 314 F.3d 384 (9th Cir. 2002). In that case, the Ninth
Circuit found that there is a substantial “risk of confusion” when “a warning, not
consistent with Miranda, is given prior to, after, or simultaneously with a Miranda
warning” because these multiple warnings impose an unfair burden on a suspect to
“sort out” the conflict. Id. at 386–89 (concluding that such confusion existed,
based on the totality of circumstances, when a suspect received two conflicting
Miranda warnings on separate occasions from the same Border Patrol agent prior
to interrogation, one of which did not fully state the suspect’s right to counsel if he
11
On the facts before us, we conclude that Detective Howland’s pre-Miranda
remarks did not render the subsequent Miranda warning ineffective. Appellant’s
argument relies on Missouri v. Seibert, where a plurality of the Supreme Court
invalidated a Miranda warning after police used a formerly common “question
first” tactic, in which police would solicit a full confession, give a technically
accurate Miranda warning, and then solicit the confession again. 542 U.S. at 604–
06. While Detective Howland’s pre-Miranda remarks cannot be construed as an
instance of this “question first” tactic — a Seibert situation occurs when a suspect
provides answers in response to pre-Miranda interrogation, a scenario that did not
play out here — we have interpreted Siebert, and its predecessor Oregon v. Elstad,
470 U.S. 298 (1985), as quite applicable to a factual scenario similar to the one
before us.9 In Hairston v. United States, a detective entered an interrogation room
could not afford it). Even putting aside the different issues presented in San Juan-
Cruz and the present case — here there was only one verbatim Miranda warning
— the Ninth Circuit did not announce a per se rule that invalidates a Miranda
warning as matter of law if that warning is accompanied by statements inconsistent
with Miranda. Rather, it clarified that when a suspect receives two inconsistent
warnings, “the onus is on the government to clarify to the arrested party the nature
of his or her rights under the Fifth Amendment,” and it cautioned that the
government should not presume that a suspect who has received two contradictory
warnings has adequate knowledge of his or her rights. Id. at 389.
9
In Elstad, the Supreme Court addressed the effect of a robbery suspect’s
statement, given in response to police inquiry prior to arrest and Miranda warning,
that “yes, [he] was there [at the scene of the robbery].” 470 U.S. at 300–01. The
Court suppressed this pre-warning statement but concluded that the statement had
no effect on the suspect’s subsequent warned confession, holding that “a suspect
who has once responded to unwarned yet uncoercive questioning is not thereby
12
and, without issuing a Miranda warning, introduced himself and informed Mr.
Hairston that he faced significant charges and that the detective was interested in
hearing Mr. Hairston’s side of the story. 905 A.2d 765, 770–71, 782 (D.C. 2006).
The detective added, however, that he “just wanted [Mr. Hairston] to listen[,]” and
then proceeded to recount facts that showed Mr. Hairston’s involvement in the
crime and played a silent video of another suspect giving a statement. Id. at 770–
72. The detective asked Mr. Hairston if he wanted “any help in his case” and if he
wanted to “tell his side of the story,” to which Mr. Hairston responded
affirmatively. Id. The detective then issued a Miranda warning and Mr. Hairston
waived his rights and confessed. Id.
In upholding the detective’s tactic in Hairston, we began by reviewing
Seibert and Elstad, acknowledging that the factual scenario of the “question first”
tactic was different than the “just listen” tactic in Hairston, but that both cases
were nonetheless instructive in determining whether pre-Miranda warning
interaction “made the Miranda warnings administered in the second session of
their interaction ineffective,” and thereby contaminated a subsequent voluntary
disabled from waiving his rights and confessing after he has been given the
requisite Miranda warnings.” Id. at 318. “Far from establishing a rigid rule, we
direct courts to avoid one; there is no warrant for presuming coercive effect where
the suspect’s initial inculpatory statement, though technically in violation of
Miranda, was voluntary.” Id.
13
confession. Id. at 780–81. In Elstad, the Supreme Court framed the inquiry as
“whether, in fact, the second [post-Miranda warning] statement was also
voluntarily made.” 470 U.S. at 318. This inquiry requires the fact finder to
“examine the surrounding circumstances and the entire course of police conduct”
to determine whether the suspect’s statements were voluntary. Id. “The fact that a
suspect chooses to speak after being informed of his rights is, of course, highly
probative.” Id. While the unwarned statement must be suppressed, “[n]o further
purpose is served by imputing ‘taint’ to subsequent statements obtained pursuant to
a voluntary and knowing waiver.” Id. Similarly, in Seibert, the central inquiry for
the plurality was “whether it would be reasonable to find in these circumstances
that the warning[] could function ‘effectively’ as Miranda requires.” 542 U.S. at
611–12 (citation omitted) (stating that a Miranda warning must “effectively advise
the suspect that he ha[s] a real choice about giving an admissible statement” and
“reasonably convey that he could choose to stop talking”).
Accordingly, in Hairston, we framed our own inquiry as whether the
detective’s pre-Miranda warning interaction with Mr. Hairston “constitute[d] the
functional equivalent of interrogation” such that it had “a coercive impact first on
Mr. Hairston’s decision to say ‘yes,’ he wanted to tell his side of the story, and
ultimately on his decision to confess.” 905 A.2d at 780. On the facts of that case,
14
we concluded that “the Miranda warnings as administered [to Mr. Hairston] would
meaningfully apprise a reasonable suspect of his right or choice to remain silent
and thus were effective[.]” Id. at 782 (brackets in original, internal quotation
marks omitted) (quoting United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1138
(11th Cir. 2006)). We stated, however, that such pre-Miranda warning interaction
could very well be “the functional equivalent of interrogation” and have “a
coercive effect” that overbears a suspect’s free will. Id. at 780. Yet we concluded
that “nothing in the record persuades us . . . that Mr. Hairston’s will was
overborne[.]” Id. at 782 (assessing factors in the record indicating voluntariness,
including Mr. Hairston’s discretionary responses, his insistence on a typewritten
statement, and that he was not under age or particularly vulnerable or impaired).
In the case before us, we do not conclude that Detective Howland’s pre-
Miranda remarks rendered ineffective the Miranda warning that followed. Rather,
the key inquiry is whether appellant, in spite of Detective Howland’s pre-Miranda
remarks, understood the Miranda warning and the consequences of waiver when
he decided to waive his rights. See Hairston, supra, 905 A.2d at 782 (assessing the
effectiveness and adequacy of a Miranda warning — in spite of pre-Miranda
interactions — based on the totality of circumstances, looking to see whether
appellant made a knowing, intelligent, and voluntary choice to waive his rights);
15
Seibert, supra, 542 U.S. at 613–14 (asking whether the tactic at issue was “likely
to mislead and deprive a defendant of knowledge essential to his ability to
understand the nature of his rights and the consequences of abandoning them”);
Gonzalez-Lauzan, supra, 437 F.3d at 1139 (upholding the validity of a Miranda
warning given between two phases of interrogation, the first in which officers told
a suspect to just listen, the second in which officers solicited a confession, because
“nothing in the record suggests that [the suspect’s] waiver of his rights was
uninformed, coerced or involuntary”); see also Miranda, supra, 384 U.S. at 469
(“It is only through an awareness of [the] consequences [of waiver] that there can
be any assurance of real understanding and intelligent exercise of the privilege.”).
That is to say, on the facts of the present case, where appellant did not speak before
receiving a Miranda warning and where he received a complete and accurate
Miranda warning, our assessment of the impact of pre-Miranda remarks takes the
perspective of appellant, asking whether, based on the totality of the
circumstances, the pre-Miranda remarks and the subsequent Miranda warning
permitted appellant to knowingly, intelligently, and voluntarily waive his Miranda
rights. See Di Giovanni, supra note 5, 810 A.2d at 892. Detective Howland’s pre-
Miranda remarks are “but one factor to be considered in the determination of
whether the defendant made a knowing and intelligent waiver of his rights and that
the waiver was voluntary.” See United States v. Rawls, 322 A.2d 903, 907–08
16
(D.C. 1974) (concluding that a police officer’s “unnecessary embellishment on the
Miranda warning” that “a lawyer would not be provided until the next day” did
not, in itself, invalidate the warning). We turn to this inquiry.
B. The Validity of the Miranda Waiver: Weighing the Totality of the
Circumstances
A valid waiver of Miranda rights has two distinct components: (1) it must
be knowing and intelligent, “made with a full awareness of both the nature of the
right being abandoned and the consequences of the decision to abandon it,” and (2)
it must be voluntary, “the product of a free and deliberate choice rather than
intimidation, coercion, or deception.” In re M.A., 33 A.3d 378, 381 (D.C. 2011)
(citing Berghuis v. Thompkins, 560 U.S. 370, 382–83 (2010)). In assessing
whether a Miranda waiver was knowing, intelligent, and voluntary, we consider
“the particular facts and circumstances surrounding [the] case” and base our
determination on the totality of the circumstances. Di Giovanni, supra note 5, 810
A.2d at 892 (internal quotations and citations omitted).
The “admissions and confessions of juveniles require special caution.” In re
M.A.C., supra, 761 A.2d at 36 (citing In re Gault, 387 U.S. 1, 45 (1967)).
Applying the totality of the circumstances inquiry to the juvenile context, we
17
consider “the juvenile’s age, experience, education, background and intelligence,
the circumstances under which the statement was given, and whether the juvenile
has the capacity to understand the warnings given him, the nature of his Fifth
Amendment rights, and the consequences of waiving those rights.” Id. (citing Fare
v. Michael C., 442 U.S. 707, 725 (1979)). In addition, we may consider the
juvenile suspect’s prior experience with the legal system. Di Giovanni, supra note
5, 810 A.2d at 892.
Turning to this two-part inquiry, we conclude that appellant knowingly and
intelligently waived his Miranda rights, but that he did not do so voluntarily.10
1. Knowing and Intelligent Waiver
Appellant argues that he could not have knowingly and intelligently waived
his rights after receiving a “confounding and inaccurately conveyed” Miranda
warning from Detective Howland. Detective Howland’s statements, appellant
argues, incorrectly characterized the consequences of signing the waiver by giving
10
The trial court conducted a combined totality of the circumstances
analysis, simultaneously assessing factors relevant to knowledge, intelligence, and
voluntariness to reach an overall conclusion. We have taken this approach in many
of our cases, see, e.g., In re M.A.C., supra, 761 A.2d at 38–9, while in others we
have opted to separate this analysis, see, e.g., Dorsey, supra, 60 A.3d at 1200–06,
as we do in the present case.
18
appellant the option to “[s]tay silent and be thrown to the lions, or speak and be
protected by Detective How[land].”11 Thus, the “most plausible thesis,” appellant
argues, is that he merely “follow[ed] the direction of an authority figure —
something juveniles are highly inclined to do” — rather than knowingly and
intelligently waiving his rights.
A suspect’s waiver is knowing and intelligent when, considering the totality
of the circumstances, the suspect demonstrates “awareness of the right to remain
silent and [makes] a decision to forego that right.” Robinson, supra, 928 A.2d at
725 (quoting United States v. Yunis, 273 U.S. App. D.C. 290, 301, 859 F.2d 953,
964 (1988)). As a result, “the government bears a heavy burden to show: (1) that
the defendant understood [the right] . . . ; and (2) that the defendant intentionally
relinquished or abandoned that ‘known right[.]’” Shreeves, supra, 395 A.2d at 781
(citations and internal quotation marks omitted); see Fare, supra, 442 U.S. at 726
(concluding, based on the totality of the circumstances, that a juvenile suspect had
knowingly and intelligently waived his rights after police officers explained that he
was being questioned regarding a crime and “informed him of all the rights
delineated in Miranda, and ascertained that [the suspect] understood those
11
In particular, appellant points to Detective Howland’s statement: “I know
you know why you’re up here, so I ain’t gonna play the ‘I don’t know’ crap,” and
Detective Howland’s invitation to “give your version of what happened today,”
followed by the statement “I stand between you and the lions out there.”
19
rights[,]” and where the suspect provided “no indication” that he “failed to
understand what the officers told him[,]” and “clearly expressed his willingness to
waive his rights and continue the interrogation”).
Because our analysis takes appellant’s perspective with regard to whether
the totality of circumstances indicates that he made a knowing and intelligent
waiver, we begin by considering the information before him when he waived his
rights. Detective Howland’s pre-Miranda remarks — namely, his references to
protecting appellant from the “lions out there” who want to pin a “whole bunch of
stuff” on appellant — are one factor in our analysis. See Rawls, supra, 322 A.2d at
907–08. Following these remarks, the video recording of appellant’s interrogation
establishes that Detective Howland told appellant that:
[I]n order for us to have a conversation, I have to read
you your rights and you have to waive your rights. If you
answer no to any of the questions I ask you after I read
you your rights, that’s all, I mean, I can’t have the
interview, okay?
Appellant remained silent and Detective Howland read aloud a complete and
unmodified Miranda warning from the waiver card. Appellant affirmed his
understanding of each right vocally and in writing.
20
The trial court made specific findings under a “totality of the circumstances”
analysis after reviewing the video recording of appellant’s confession. The trial
court found that Detective Howland’s pre-Miranda remarks were “just kind of so
general[,]” in essence, a “very simple set of statements” that “went through
Miranda in detail,” providing context for the boilerplate Miranda warning that he
subsequently read from a waiver card. After Detective Howland read aloud from
the Miranda waiver card, the trial court observed that he “asked about [appellant’s]
rights in each of the four sections.” Appellant “appeared to understand[,]” the trial
court found, and “didn’t ask any follow-up questions[,]” and affirmatively
answered each of Detective Howland’s four confirmatory questions before signing
the waiver card. The trial court also noted the absence of “any mental health
concerns,” stating that appellant “seemed lucid” and “aware of what was going
on.” Appellant “seemed to know particularly what he was doing, [and] seemed to
want to talk about it[,]” and “certainly picks and chooses th[r]ough what he wants
to answer.” As Detective Howland asked questions, appellant “didn’t really seem
to have any difficulty . . . indicating to the detective by not answering [that ‘]I am
not talking about that subject matter.[’]”
On these findings, trial court concluded, and we agree, that appellant waived
his rights using his own “rational thought” and “intellect.” While we do not
21
condone “a police officer’s deliberate decision to withhold Miranda warnings prior
to speaking with a person who is under arrest[,]” see Hairston, supra, 905 A.2d at
782, we defer to the trial court’s findings and uphold its conclusion that Detective
Howland’s pre-Miranda remarks did not mischaracterize the verbatim Miranda
warning that followed. Contra, e.g., Di Giovanni, supra note 5, 810 A.2d at 894
(concluding that a police officer had invalidated a suspect’s waiver by explaining
that the police officer did not think the suspect needed a lawyer and that it would
be best to explain his side of the story); Lee v. State, 12 A.3d 1238, 1250–51 (Md.
2011) (concluding that the detective’s statement “this is between you and me, bud”
violated Miranda by “undermining the warning” that the defendant’s statements
could be used against him). We conclude that Detective Howland accurately and
comprehensively apprised appellant of his rights, see Fare, supra, 442 U.S. at 726,
and that Detective Howland’s pre-Miranda remarks, while relevant to our
continued inquiry, did not prevent appellant from making a knowing and
intelligent waiver, see Rawls, supra, 322 A.2d at 907–08. Left for us now is the
question of whether appellant’s waiver was voluntary.
22
2. Voluntary Waiver
Appellant contends that Detective Howland coerced him into waiving his
rights by indicating that appellant would only be protected from “the lions and the
additional charges they wished to bring” if appellant waived his rights, and by
suggesting that appellant would face a penalty — the additional charges — if he
did not waive his rights. Appellant analogizes Detective Howland’s interrogation
tactic to one employed in the Ninth Circuit case Collazo v. Estelle, where an
interrogating police officer told a suspect who had invoked his Miranda rights by
asking to speak with a lawyer that it “might be worse” if he did so and that it
would be in his interest to proceed without one. 940 F.2d 411, 414 (9th Cir. 1991).
The Ninth Circuit held that these statements created a penalty for exercising
constitutional rights and concluded that the officer had failed to “scrupulously
honor Collazo’s right to cut off questioning” and nullified Miranda’s express
purpose to alleviate the “compelling pressures” of interrogation. Id. at 416–18
(citing Miranda, supra, 384 U.S. at 479) (internal quotation marks omitted).
Miranda’s “critical safeguard” against the coercive pressures of custody is a
suspect’s understanding of the right to end questioning and that law enforcement
must respect this right. See Dorsey, supra, 60 A.3d at 1191 (citing Michigan v.
23
Mosley, 423 U.S. 96, 104 (1975)); see also Berghuis, supra, 560 U.S. at 386
(stating that the suspect must be aware “that police would have to honor his right to
be silent and his right to counsel during the whole course of interrogation”).
Without this safeguard, “the setting of in-custody interrogation operates on the
individual to overcome free choice in producing a statement after the privilege has
been once invoked.” Dorsey, supra, 60 A.3d at 1191. “[A]ny evidence that the
accused was threatened, tricked, or cajoled into a waiver will, of course, show that
the defendant did not voluntarily waive his privilege.” Miranda, supra, 384 U.S.
at 476. “The test for determining the voluntariness of specific statements is
whether, under the totality of the circumstances, the will of the [suspect] was
overborne in such a way as to render his confession the product of coercion.”
Dorsey, supra, 60 A.3d at 1203.
Bearing these principles in mind, we are keenly aware of the “special
caution” required in our de novo review of the voluntariness of appellant’s
confession, given his juvenile status, and we take great care to assess the impact of
subtle interrogation tactics. In re M.A.C., supra, 761 A.2d at 36 (citing In re Gault,
387 U.S. at 45); Dorsey, supra, 60 A.3d at 1190. Our inquiry rests on many of the
same factors mentioned in our “knowing and intelligent” inquiry above: we must
determine whether, on the totality of the circumstances, appellant’s will was
24
overborne by Detective Howland’s remarks and the circumstances of the
interrogation. See Castellon v. United States, 864 A.2d 141, 157 (D.C. 2004).
Specific to the voluntariness component, we also consider a juvenile suspect’s
physical and mental condition, the duration and intensity of the interrogation, the
hour at which it occurred, and any evidence of physical abuse, threats, punishment,
or trickery. See In re J.F., 987 A.2d 1168, 1177 (D.C. 2010) (citations omitted). A
“totality of the circumstances” analysis is a subjective analysis, and we have
accordingly upheld the validity of Miranda waivers on voluntariness grounds in
the juvenile context where the totality of the circumstances weighed in favor of
such a conclusion,12 and invalidated Miranda waivers on the same grounds where
the totality of the circumstances weighed against such a conclusion.13
12
See In re M.A., supra, 33 A.3d at 379, 382 (concluding that a fifteen-year-
old who “spoke little English” and “had no previous experience with the American
legal system” had waived his rights and confessed voluntarily, in spite of a
detective’s admonition that “if you value your mother, value your little sister, the
best thing you can do is tell the truth,” because this statement referred to the boy’s
personal interest in helping his family, not his legal interests, and because the boy
“had a calm demeanor, did not manifest any reading difficulties, and did not ask
for further clarification”); In re D.W., 989 A.2d 196, 203–04 (D.C. 2010)
(concluding that a juvenile had voluntarily waived his Miranda rights after a
detective issued a warning “as soon as the officer came to be seated in the room
with the [suspect],” deferring to the trial court’s findings based on a video
recording of the confession showing the suspect’s “demeanor, energy level, and
apparent level of understanding” and that he was unrestrained); Matter of D.A.S.,
391 A.2d 255, 258–59 (D.C. 1978) (concluding that a confession was voluntary
when police led a seventeen-year-old suspect “to believe that the evidence against
him is stronger than it is” because he had prior experience with law enforcement,
25
Reviewing the factors relating to voluntariness in the record before us, we
return to the trial court’s findings, to which we accord deference. See Dorsey,
supra, 60 A.3d at 1190. After viewing appellant’s approximately eighteen-minute
video-recorded interrogation, the trial court observed that appellant was cuffed to
the floor 14 but appeared “relaxed” and not “under any particular distress” or
“discomfort” and stated that “[t]here’s no evidence of physical injuries[.]” The
trial court found that Detective Howland “maintained an appreciable distance”
from appellant and was “kind of sitting back . . . not really up on top of
[appellant].” The trial court also noted that “[t]here don’t seem to be any mental
health concerns[.]” As to Detective Howland’s pre-Miranda remarks, the trial
court found that they were not “an eye-opener” for appellant; while “[o]ne might
conclude[] that [the pre-Miranda remarks] relate[] to more serious charges[,]”
appellant “had to know that . . . he was facing a pretty significant set of charges[.]”
was not restrained, threatened, or coerced, was repeatedly informed of his rights,
and understood those rights).
13
See In re. J.F., supra, 987 A.2d at 1177 (concluding that a fourteen-year-
old’s confession was involuntary because police officers, over the course of a two-
hour interrogation, told him that he could not leave until he confessed, even though
he had denied culpability sixty-three times, and much of his confession simply
repeated the officer’s suggested version of events); In re T.T.T., 365 A.2d 366,
369 (D.C. 1976) (concluding that a fifteen-year-old’s confession was involuntary,
in spite of multiple valid waivers during an interview lasting approximately ten
hours, after detectives pressed him to elaborate upon a prior confession after he
had invoked his Miranda rights).
14
The trial court stated that appellant was “hand cuffed” but the video
recording shows that appellant wore an ankle cuff.
26
Detective Howland was using an “age-old tactic of detectives[,]” the trial court
concluded, in which “they have particular information and they share pieces of it”
and “sometimes not even completely . . . telling the truth” about the information
that they know. Accordingly, the trial court concluded that this “use of trickery”
did not violate Miranda and that appellant made a decision to waive his rights
“based on his own free will[.]”
The question we address on review is one of tactics; namely, whether
Detective Howland’s interrogation tactic of making pre-Miranda warning
statements that conveyed the gravity of appellant’s situation combined with the
surrounding circumstances of the interrogation to render appellant’s waiver
involuntary. As explained in Section II-A, Detective Howland’s tactic bears some
resemblance to the “just listen” tactic that we upheld in Hairston. While that tactic
was quite possibly coercive from an objective standpoint, in the circumstances of
Hairston we held that it did not “constitute the functional equivalent of
interrogation[,]” such that its “coercive impact” rendered Mr. Hairston’s post-
waiver confession involuntary. 905 A.2d at 780–82. Here, as in Hairston,
Detective Howland spoke generally about the case against appellant while
appellant listened and remained silent until Detective Howland issued a Miranda
warning and asked appellant whether he wanted to waive his rights. Id. at 771.
 27
Also, as in Hairston, Detective Howland’s remarks were, no doubt, an attempt to
bolster the case against appellant to encourage him to share his side of the story.
Id. at 771–72.
Yet Detective Howland’s tactic is dissimilar to Hairston in one dispositive
aspect: rather than recounting the specific evidence implicating appellant,
Detective Howland referred generally to unspecified charges that appellant would
face if the “lions out there” had their way. We have previously upheld the
interrogation tactic of deceiving a suspect into believing “that the evidence against
him is stronger than it is.” Matter of D.A.S., supra note 12, 391 A.2d at 258. Yet
such deception crosses the line to inadmissible coercion when other circumstances
combine with it to “mak[e] the situation appear hopeless[.]” Id. at 259. (citations
omitted). Such circumstances manifested here when Detective Howland portrayed
himself as appellant’s protector from these “lions,” ostensibly referencing other
people in the processing center, and stated that “everybody” — presumably the
“lions” — “said . . . you did a whole bunch of stuff” and “they’re gonna try and say
that you did it all” unless appellant accepted the opportunity “to give [his] version
of what happened.” In essence, by portraying himself as protector from the “lions
out there,” Detective Howland supplied the reverse implication: that if appellant
does not waive his rights, Detective Howland will throw him to the “lions.” Taken
28
together, these statements seem to suggest that if appellant remained silent, he
would face fabricated charges for things that he did not do.
Detective Howland did not explicitly tell appellant that “it might be worse”
for him if he invoked his rights, as in Collazo, but he strongly implied it. 940 F.2d
at 414. The facts of Collazo are not directly applicable to the factual scenario
before us — there, the officer’s statement that “it might be worse” was in response
to Collazo’s invocation of his right to counsel — but the legal principal of Collazo
is readily applicable. The Ninth Circuit observed that the officer’s statements
“were calculated to pressure Collazo into changing his mind about remaining
silent, and into talking without counsel to his interrogators” and concluded that the
officer’s subsequent statement “that it ‘might be worse’ for Collazo if he did not
cooperate with the police can only be seen as menacing.” Id. at 416. This
statement, the court explained, was an attempt to “impose a penalty” for invoking
Miranda rights, id. at 417, and we see little difference in the nature of this post-
Miranda statement and Detective Howland’s pre-Miranda statements. Telling a
suspect that invoking his constitutional rights will result in adverse consequences is
an “unquestionably coercive” tactic. Dorsey, supra, 60 A.3d at 1202–04 (holding
that detectives violated Miranda by “exhorting [a suspect] that [asserting his
rights] would work to his disadvantage while their relinquishment would benefit
29
him”); see also United States v. Harrison, 34 F.3d 886, 891–92 (9th Cir. 1994)
(“[T]here are no circumstances in which law enforcement officers may suggest that
a suspect’s exercise of the right to remain silent may result in harsher treatment by
a court or prosecutor.”).15 Here, Detective Howland’s remarks come much closer
to the “unquestionably coercive” tactics in Dorsey, supra, 60 A.3d at 1203–04,
than to the acceptable deception regarding the strength of the evidence in Matter of
D.A.S., supra note 12, 391 A.2d at 258.16
We emphasize the role of appellant’s juvenile status. In any custodial
interrogation situation, “the seemingly benign transmittal of information to an
accused may resemble the kind of mental games that largely generated the
Miranda decision itself.” See United States v. Brown, 737 A.2d 1016, 1021 (D.C.
1999). This warning is all the more applicable in the juvenile context, where
courts must exercise “special caution” in conducting a voluntariness analysis. See
15
Of course, not all forms of pressure to waive Miranda rights to avoid
adverse consequences are coercive and in violation of Miranda. See supra note
12; see also Hairston, supra, 905 A.2d at 770–72.
16
Yet another factor appears to weigh in favor of involuntary waiver:
although Detective Howland’s interview lasted only eighteen minutes, there is
some confusion as to how long appellant had been in custody at the time.
Appellant’s brief indicates that he was interviewed at “11:54 a.m.[,]” or nearly two
hours after the crime, whereas the video recording of the interview indicates that
Detective Howland stated “it’s about 11:54 p.m.” as he filled out the waiver card,
placing the interview nearly fourteen hours after the crime. The waiver card
provided with the record on appeal is inconclusive.
30
In re M.A.C., supra, 761 A.2d at 36 (citing In re Gault, 387 U.S. at 45). Even in
the absence of circumstances indicating physical coercion or visible distress, we
conclude that a reasonable juvenile suspect in appellant’s situation would
understand Detective Howland’s pre-Miranda statements — specifically “I stand
between you and the lions out there. . . and they’re gonna try and say that you did it
all” and “everybody said . . . you did a whole bunch of stuff” — as a veiled threat
to throw appellant to the “lions” who would charge appellant with other crimes
unrelated to the present incident that may not even involve appellant. This
statement is incompatible with the presumption of innocence. See Miller v.
Fenton, 474 U.S. 104, 116 (1985) (“[T]he admissibility of a confession turns as
much on whether the techniques for extracting the statements, as applied to this
suspect, are compatible with a system that presumes innocence and assures that a
conviction will not be secured by inquisitorial means as on whether the defendant’s
will was in fact overborne.”).17
17
Our colleague dissenting as to our voluntariness conclusion suggests that
whether a suspect’s will was overborne is a “fact-bound” aspect of the ultimate
legal question of voluntariness, and that we are required to “defer[] to [the trial
court’s] voluntariness finding” so long as the record supports it. See Opinion of
Epstein, J., at 53. In support, our colleague cites to a patent construction case in
which the Supreme Court relied by analogy on Miranda principles for the
proposition that “[t]he answer to the legal question about the voluntariness of the
confession may turn upon the answer to a subsidiary factual question[.]” Teva
Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841–42 (2015) (citing
Miller, supra, 474 U.S. at 112–118).
31
III. Conclusion
Considering the totality of the circumstances, with particular emphasis on
Detective Howland’s references to unspecified charges that a juvenile appellant
would face and his offer to stand between appellant and the “lions out there,” we
cannot conclude that Detective Howland’s pre-Miranda remarks left appellant with
a “real choice about giving an admissible statement.” See Hairston, supra, 905
A.2d at 780–82 (quoting Seibert, supra, 542 U.S. at 612). From appellant’s
perspective, Detective Howland’s statements “ma[de] the situation appear
hopeless” and thereby constituted coercion. See Matter of D.A.S., supra note 12,
We do not read Teva Pharmaceuticals to require the deference that our
colleague suggests. This characterization blurs the distinction between factual
findings and legal conclusions and would often permit the legal question of
voluntariness to evade review by this court altogether. Indeed, in the same
paragraph that our colleague cites, the Supreme Court stated that, in spite of the
deference required, “the ultimate question of construction [here, the equivalent
question is voluntariness] will remain a legal question.” Id. at 842. The Supreme
Court added that “[a]n appellate court will review the trial judge’s factual
determination about the alleged intimidation deferentially (though, after reviewing
the factual findings, it will review a judge’s ultimate determination of
voluntariness de novo).” Id. (citing Miller, supra, 474 U.S. at 112–118).
Similarly, our recent opinion in Turner v. United States explained that we defer to
the factual findings supported by the record, “but we do not accord comparable
deference to . . . the judge’s determination on the ultimate question of Brady
materiality [here, the equivalent question is voluntariness]. With due appreciation
for the fact-bound nature of this ultimate question, we must review it de novo on
appeal.” 116 A.3d 894, 915 (D.C. 2015). Thus, whether Detective Howland’s
statements expressly or impliedly coerced appellant to waive his Miranda rights is
a question that we review de novo.
32
391 A.2d at 259; see also In re M.A.C., supra, 761 A.2d at 36 (citing In re Gault,
supra, 387 U.S. at 45) (stating that the “admissions and confessions of juveniles
require special caution”). Accordingly, while we conclude that appellant received
an effective Miranda warning and that Detective Howland’s pre-Miranda remarks
did not render the warning ineffective per se, we also conclude that appellant did
not voluntarily waive his Miranda rights. We reverse the trial court’s adjudication
of delinquency.
So ordered.
EASTERLY, Associate Judge, concurring in part and dissenting in part: I
concur with the conclusion of Part II.B.2 that S.W. did not voluntarily waive his
Miranda rights. In my view, however, it is unnecessary and ill-advised for us to
reach the issue of the voluntariness of S.W.’s waiver.
Our analysis should begin and end with an examination of the warnings the
detective gave to S.W. before S.W. waived his rights. To be sure, the detective
read from a preprinted card that addressed the topics mandated by Miranda.1 But
that was not all the detective said about S.W.’s rights to remain silent and to
1
Miranda v. Arizona, 384 U.S. 436 (1966).
33
counsel, or about the detective’s own role in any interrogation that might follow.
Immediately prior to reading S.W. the rights card, the detective incorrectly
communicated to S.W. that he was not S.W.’s adversary; that he, unlike “the
lions,” i.e., his colleagues outside the room, was seeking to help S.W.; that the
lions were going to try to falsely accuse S.W. of things S.W. had not done; that the
only way he could help S.W. and keep the lions at bay was if S.W. talked; and that
he and S.W. could not talk unless S.W. waived his rights. Having delivered this
preamble, the detective then read aloud from the preprinted card and,
unsurprisingly, S.W. waived his rights—unsurprisingly, because the warnings as a
whole did not “reasonably convey to [S.W.] his rights as required by Miranda” and
did not under “these circumstances . . . function effectively.” See Missouri v.
Seibert, 542 U.S. 600, 611 (2004) (quoting Duckworth v. Eagan, 492 U.S. 195,
203 (1989)).
“Just as no talismanic incantation is required to satisfy Miranda’s strictures,
it would be absurd to think that mere recitation of the litany suffices to satisfy
Miranda in every conceivable circumstance.” Id. (quoting California v. Prysock,
453 U.S. 355, 359 (1981)). In other words, we cannot be satisfied that adequate
and effective warnings have been given every time the police read from a
34
preprinted rights card, no matter what else the police say. See id. That would miss
the point of Miranda entirely.
In Miranda, the Supreme Court recognized “that the modern practice of in-
custody interrogation is psychologically rather than physically oriented.” 384 U.S.
at 448. The Court described a number of interrogation techniques, among them
“the Mutt and Jeff act,” a classic bad cop-good cop routine. 2 Id. at 452. It
explained that the police, “by trading on [an interviewee’s] insecurity about
himself or his surroundings[,] . . . . persuade, trick or cajole him out of exercising
his constitutional rights.” Id. at 455. The Court concluded that the “traditional”
totality-of-the-circumstances test for identifying involuntary confessions (more
easily employed when an individual was physically coerced) was not up to the task
of assessing the effect of these various psychological pressures on an individual
suspect and thus provided inadequate protection against compelled self-
incrimination. See id. at 457, 467; see also Seibert, 542 U.S. at 608; Dickerson v.
2
As the Court explained it:
In this technique, two agents are employed. Mutt, the relentless
investigator, who knows the subject is guilty and is not going to waste
any time. . . . Jeff, on the other hand, is obviously a kindhearted man.
. . . He disapproves of Mutt and his tactics and will arrange to get him
off the case if the subject will cooperate. He can’t hold Mutt off for
very long. The subject would be wise to make a quick decision.
Id. at 452.
 35
United States, 530 U.S. 428, 442 (2000). The Court was concerned that “[r]ights
declared in words,” namely, the right against compelled self-incrimination and the
right to the assistance of counsel, “might be lost in reality.” 384 U.S. at 443
(quoting Weems v. United States, 217 U.S. 349, 373 (1910)). It determined that
procedural safeguards were needed: warnings that could serve as a “clearcut fact”
that the interviewee had been advised and thus was aware of the constitutional
protections available to him in the adversarial setting of an interrogation.3 Id. at
468-69.
3
My colleague dissenting from the court’s determination that S.W.’s waiver
was involuntarily made seems to lose sight of the Miranda warnings’ essence as a
procedural protection; he seems to think our interest is only in ensuring the
veracity of any confession obtained. False confessions are a real and serious
concern; but the rationale for Miranda warnings extends well beyond forestalling
false confessions. Miranda warnings are grounded in the right against compelled
self-incrimination. Miranda, 384 U.S. at 457-58, 465-66. As the Court in
Miranda explained:
[T]he constitutional foundation . . . is the respect a government—state
or federal—must accord to the dignity and integrity of its citizens. To
maintain a ‘fair state-individual balance,’ to require the government
‘to shoulder the entire load,’ to respect the inviolability of the human
personality, our accusatory system of criminal justice demands that
the government seeking to punish an individual produce the evidence
against him by its own independent labors, rather than by the cruel,
simple expedient of compelling it from his own mouth.
Id. at 460 (internal citations omitted). Miranda warnings are also grounded in the
recognition that the right to counsel “is indispensable to the protection of the Fifth
Amendment privilege under the system we delineate today.” Id. at 469; see
Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (explaining that an individual’s
right to the assistance of counsel when subject to a prosecution by the government
“is one of the safeguards of the Sixth Amendment deemed necessary to insure
36
With respect to these warnings, the Court made one thing pellucidly clear:
function was all. The Court eschewed “impotent and lifeless formulas.” 384 U.S.
at 443 (quoting Weems, 217 U.S. at 373). It never endorsed a script. Two core
constitutional rights had to be addressed—the right to remain silent and the right to
counsel (court-appointed if the individual could not afford to hire an attorney)—
and the individual had to be told that his words could be used against him in court
so that he would be “acutely aware that he is faced with a phase of the adversary
system—that he is not in the presence of persons acting solely in his interest.” Id.
at 469. But the Court was willing to leave the particular procedures and precise
phrasing to individual jurisdictions so long as these procedures and warnings
“adequately and effectively” protected individuals’ rights against coerced self-
incrimination. Id. at 467.4
fundamental human rights of life and liberty” (quoting Johnson v. Zerbst, 304 U.S.
458, 462 (1938))).
4
See id. at 444 (“[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.”); id. at 478-79 (detailing the warnings that are
required “unless other fully effective means are adopted to notify the person of his
right of silence and to assure that the exercise of the right will be scrupulously
honored”); id. at 490 (“Congress and the States are free to develop their own
safeguards for the privilege, so long as they are fully as effective as those described
above . . . .”).
37
“There [were] those, of course, who preferred the old way of doing things,”
i.e., “giving no warnings.” Seibert, 542 U.S. at 609. And attacks were mounted
against Miranda warnings—both direct, see, e.g., Dickerson v. United States, 530
U.S. 428 (2000), and indirect. “The technique of interrogating in successive
unwarned and warned phases,” at issue in Seibert, was but one “police strategy
adapted to undermine the Miranda warnings.”5 Seibert, 542 U.S. at 609, 616. The
Court condemned that effort to deprive a defendant of “a real choice between
talking and remaining silent.” Id. at 609. And it emphatically stated that the “mere
recitation of the litany” would not always suffice; that the context in which these
recitations were made could disable these warnings; and that “it would be absurd to
think” otherwise. Id. at 611. The Court concluded by warning the “[s]trategists
dedicated to draining the substance out of Miranda” that they could not accomplish
indirectly “what Dickerson held Congress could not do by statute,” i.e., remove
Miranda warnings as a first-line defense against compelled custodial
interrogations.6 Id. at 617.
5
See Seibert, 542 U.S. at 610 n.2 (detailing other methods).
6
Although Seibert was plurality opinion, Justice Kennedy provided a fifth
vote for the determination that law enforcement officers do not comply with
Miranda if they advise a defendant of all the rights on the Miranda checklist but
communicate those warnings in a way that subverts their purpose. 542 U.S. at 621
(Kennedy, J., concurring) (“The Miranda rule would be frustrated were we to
allow police to undermine its meaning and effect.”).
38
Despite this admonition, these “strategists” did not give up after Seibert.
They simply changed tactics, for example, by spiking the recitation of rights with a
preamble that tells the interviewee in so many words: you really do not have a
choice; waiver is your only option.7 The Queens District Attorney’s Office in New
York tried this in 2007, when it instituted a practice of delivering scripted warnings
that commenced with detectives (with a prosecutor at their side) telling
interviewees, among other things, “this is your opportunity to tell us your story,”
and “[t]his will be your only opportunity to speak with us before you go to court on
these charges.” People v. Dunbar, 24 N.Y.3d 304, 308-09 (2014), cert. denied,
135 S. Ct. 2051 (2015), cert. denied, 135 S. Ct. 2052 (2015). The New York
courts—first the intermediate courts of appeal, then the highest court in the state—
decisively shut this practice down. The New York Court of Appeals explained that
this “preamble, which is at best confusing and at worst misleading, rendered the
subsequent Miranda warnings inadequate and ineffective.” Id. at 316. The court
further explained:
7
See, e.g., Yale Kamisar, Commentary, A Look Back at the “Gatehouses
and Mansions” of American Criminal Procedure, 12 OHIO ST. J. CRIM. L. 645, 654
& n.41 (2015) (“There is reason to believe that the delivery of the Miranda
warnings is sometimes, perhaps even routinely, undermined by police interrogators
who . . . inform suspects at the outset that they will not be able to tell the police
‘their side of the story’ unless they first waive their rights.”); Charles D.
Weisselberg, Mourning Miranda, 96 CALIF. L. REV. 1519, 1557-61 (2008)
(reviewing the use of “softening up” tactics designed to de-emphasize the
significance of the Miranda warnings and increase the likelihood of waiver).
39
Before they were read their Miranda rights, [the defendants] were
warned, for all intents and purposes, that remaining silent or invoking
the right to counsel would come at a price—they would be giving up a
valuable opportunity to speak with an assistant district attorney, to
have their cases investigated or to assert alibi defenses. The
statements to “give me as much information as you can,” that “this is
your opportunity to tell us your story” and that you “have to tell us
now” directly contradicted the later warning that they had the right to
remain silent. By advising them that speaking would facilitate an
investigation, the interrogators implied that these defendants’ words
would be used to help them, thus undoing the heart of the warning that
anything they said could and would be used against them. And the
statement that the prearraignment interrogation was their “only
opportunity” to speak falsely suggested that requesting counsel would
cause them to lose the chance to talk to an assistant district attorney.
Id.
As a consequence, the Court of Appeals determined that the issue was not
whether “these defendants’ waivers were valid, but rather whether or not they were
ever ‘clearly informed’ of their Miranda rights in the first place.” Id. The court
determined that they were not. As the court explained, no one would defend
“Miranda warnings [that] were preceded by statements that were directly contrary
to those warnings (e.g., you are required to answer our questions; your statements
will be used to help you; you are not entitled to a lawyer).” Id. “The preamble did
the same thing, albeit in an indirect, more subtle way. . . . [A] reasonable person in
40
these defendants’ shoes might well have concluded, after having listened to the
preamble, that it was in his best interest to get out his side of the story—fast.” Id.8
The warnings delivered in this case were not, at least as far as we know, part
of some MPD-wide protocol, but they were of the same ilk as those employed in
Dunbar, consisting of a neutralizing preamble followed by a recitation of rights.
The detective gave his warnings to S.W. as follows:
I’m gonna give you an opportunity to give your version of what
happened today, cause . . . I stand between you and the lions out there.
Cause they’re gonna think—right now we have a lotta things goin’ on
out there, and they’re gonna try and say that you did it all. Okay?
And I think what happened today was just a one-time thing. But
before I came out here everybody said, you know, tryin’ to say you
did a whole buncha stuff but . . . in order for us to have a
conversation, I have to read you your rights and you have to waive
your rights. If you answer no to any of the questions I ask you after I
read you your rights, that’s all—I mean, I can’t have the interview,
okay? It’s uh, what’s today’s date? Today’s the 22nd, it’s about 11:54
p.m. You are under arrest. Before we ask you any questions, you
8
Other courts have similarly rejected Miranda warnings that obscure the
meaning of the rights the warnings are meant to protect. See, e.g., Hart v. Att’y
Gen. of State of Fla., 323 F.3d 884, 894 (11th Cir. 2003) (clarity of Miranda
warnings compromised where police told defendant both that incriminating
statements could be used against him and, inconsistently, that “honesty will not
hurt you”); United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002)
(“‘What Miranda requires is meaningful advice to the unlettered and unlearned in
language which they can comprehend and on which they can knowingly act.’ In
order for the warning to be valid, the combination or the wording of its warnings
cannot be affirmatively misleading. The warning must be clear and not susceptible
to equivocation.” (quoting United States v. Connell, 869 F.2d 1349, 1351 (9th Cir.
1989))).
41
must understand what your rights are. . . . [Rights card is read]. Do
you understand these rights?
S.W. responded yes, and then waived.
These warnings were just as confusing and misleading as those employed in
Dunbar. The message that this was “an opportunity” for S.W. to better his
position, and the encouragement to take it quickly, “implied that [S.W.’s] words
would be used to help [him], thus undoing the heart of the warning that anything
[he] said could and would be used against [him].” 24 N.Y.3d at 316. 9 The
exhortations to “waive” and talk now also “directly contradicted the later warning
that [S.W.] had the right to remain silent,” id., not to mention a right to consult
with counsel. The statement that if he did not waive, “that’s all,” also
communicated that S.W.’s exercise of his rights “would come at a price” of giving
up an irretrievable “opportunity” to speak to law enforcement. Id.
In addition, these warnings also included a coercive element that the
warnings in Dunbar did not: the detective told S.W. that the lions were waiting for
him outside the room, that only the detective could hold them at bay, and that the
9
Cf. Lee v. State, 12 A.3d 1238, 1245-46 (Md. 2011) (holding that police
officer’s statement to defendant mid-interrogation, “[t]his is between you and me,
bud. Only me and you are here, all right?” negated prior waiver of Miranda
rights).
42
lions were, in the words of my colleague, ready to “fabricate[] charges” against
S.W. 10 These statements vitiated the recitation of rights that followed. The
implication that S.W.’s constitutional rights to silence and to counsel would afford
him no protection—that only the detective could help S.W.—turns Miranda on its
head.
The detective in this case applied the exact sort of psychological pressure
that motivated the Supreme Court to require Miranda warnings in the first place.
The detective’s tactics were startlingly similar to the “Mutt and Jeff act” described
in Miranda, save for the fact that “Mutt”—here, “the lions”—remained off-stage.
Moreover, these statements “obvious[ly]” had the “manifest purpose” of
subverting Miranda and inducing S.W. not to remain silent and not to ask for a
lawyer.11 See Seibert, 542 U.S. at 613. After all, if the detective had truly wanted
10
As discussed below, I agree with the determination in Part II.B.2 of the
court’s opinion that these coercive statements rendered S.W.’s eventual waiver of
his rights involuntary. But the detective’s coercive statements also—first—
undermined the effectiveness of the warning itself.
11
While Justice Kennedy agreed with the Seibert plurality that Miranda
warnings may not be delivered in a manner that vitiates their effectiveness, he was
of the view that whether the police violated Miranda additionally turned on
whether the interrogating officer deliberately subverted the warnings. 542 U.S. at
622 (Kennedy, J., concurring). There can be no doubt that deliberate subversion is
evident on the facts presented here. See Hill v. United States, 858 A.2d 435, 444
(D.C. 2004) (inferring from the circumstances the “designed nature” of police
officer’s tactics violating Miranda).
43
to help S.W., the detective could have done so without exhorting S.W. to waive his
rights (or without Mirandizing him at all), because Miranda would not have
imposed any limit on the government’s use of S.W.’s statements for that purpose.12
Nevertheless, my colleagues in the majority as to Part II.A conclude that the
warnings in this case “adhered to the dictates of Miranda” and were “effectively
delivered.” To do so, they rely almost exclusively on Hairston v. United States,
905 A.2d 765 (D.C. 2006), a case applying Seibert to a very different set of facts
(so different that the government apparently did not deem Hairston relevant and
did not cite it to us). Glossing over those differences, my colleagues seem to read
Hairston as announcing a per se rule that, as long as a defendant does not speak
before the police read from the rights card, the recitation of the information on the
card constitutes an effective warning, no matter what else the police say in
12
Miranda only limits the use of an interviewee’s statements “against the
individual in court.” Miranda, 384 U.S. at 469 (emphasis added).
44
conjunction with that recitation.13 But Hairston, which clearly employed a fact-
specific analysis, does not announce such a rule.14
The question in Hairston was whether the detective had reduced the
effectiveness of the Miranda warnings by withholding them until after he had
outlined some of the evidence that the police had already developed against the
defendant. 905 A.2d at 769-70. When speaking to the defendant in Hairston, the
detective stuck to the facts. Unlike in this case, the detective made no affirmative
representations to the defendant about the detective’s ability to protect the
13
My colleagues minimize the detective’s statements in this case by
characterizing them as “embellishments.” But the statements the detective made
before reading the rights card did not “embellish” S.W.’s rights, i.e., make them
more attractive; instead, the detective made these rights seem unhelpful, even
hurtful to S.W.
14
My colleagues warn that there is no “per se rule that invalidates any
Miranda warning as a matter of law if that warning is accompanied by statements
inconsistent with Miranda.” Opinion of Blackburne-Rigsby, J., at 11 n.7. But if
anyone is in danger of announcing a per se rule, it is they. The majority embraces
a “perspective of appellant” (i.e., the interviewee) test to assess the effectiveness of
the warnings. Id. at 15-16. But the effectiveness of Miranda warnings is supposed
to be assessed objectively. See Seibert, 542 U.S. at 611-13. Meanwhile, “asking
whether, based on the totality of the circumstances, the pre-Miranda remarks and
the subsequent Miranda warning permitted appellant to knowingly, intelligently,
and voluntarily waive his Miranda rights,” Opinion of Blackburne-Rigsby, J., at
15, is nothing more than an inquiry into the validity of the waiver. Thus, aside
from taking notice of the fact that Detective Howland read S.W. the rights card, the
majority’s “effectiveness” analysis collapses into a voluntariness test—thereby
creating a rule that deems warnings per se effective so long as the rights card is
read.
45
defendant from hostile forces, much less did he exhort the defendant to waive his
rights so that the detective could “help” him. And unlike in this case, nothing the
detective said obscured the nature of the rights he recited to the defendant. Before
reading the defendant the rights card, the detective in Hairston simply asked the
defendant whether “he want[ed] any help in this case, and . . . want[ed] to tell [the
detective] his side of the story.” Id. at 772. Based on the particular facts of the
case, this court held that the Miranda warnings were effective. Id. at 782. But we
indicated that, “[d]epending on context,” similar behavior by the police might
violate a defendant’s rights, and that we would not approve of tactics that
“resemble[d] the kind of mental games that largely generated the Miranda decision
itself.” Id. (quoting United States v. Brown, 737 A.2d 1016, 1021 (D.C. 1999)).
As explained above, the tactics used in S.W.’s case do fall into that category; thus
Hairston does not support my colleagues’ determination that the Miranda
warnings delivered to S.W. were effective.
The court ultimately reaches the right result in this case—reversal—based
on the determination that S.W.’s waiver of his rights was involuntary. See Part
II.B.2; Part III. But it does so by holding that S.W. was subjectively coerced by
the very statements it determines did not objectively compromise the effectiveness
of the recitation of S.W.’s rights. My colleague in dissent on the issue of
46
voluntariness rightly points out that the majority opinion is in tension with itself.
He asserts that this tension supports a conclusion that S.W.’s waiver was voluntary.
For the following reasons, I disagree.
It is “our judicial duty,” even as we view the facts in the light most favorable
to the government, to “indulge every reasonable presumption” against S.W.’s
waiver of his rights.15 Dorsey v. United States, 60 A.3d 1171, 1204 (D.C. 2013)
(quoting Zerbst, 304 U.S. at 464). To determine if S.W.’s will was overborne, the
15
My dissenting colleague on this issue expresses concern that we are
giving insufficient deference to the trial court’s findings of fact. See dissenting
opinion of Epstein, J., at Part III.A. Preliminarily, it is important to distinguish
factual findings that relate to the voluntariness of S.W.’s statements (e.g., which
interview questions he answered). The concern of the majority opinion is the
voluntariness of the waiver. On this subject, the trial court actually made very few
factual findings, because the basic facts with respect to how the warnings were
delivered and how S.W. waived were not controverted. They were captured on a
video recording which was admitted into evidence at trial. That recording is now
part of the record on appeal and nothing bars us from considering it. See Hood v.
United States, 28 A.3d 553, 564 (D.C. 2011) (“We defer to the trial court’s
reasonable determination of disputed facts.” (emphasis added)); see also, e.g.,
Turner v. United States, No. 12-CO-1362, 2015 WL 3649305, at *30 (D.C. June
11, 2015) (examining whether there was evidence of “coercion or lack of
voluntariness on the videotape” of appellant’s interrogation by police).
In the absence of any factual disputes, whether S.W.’s waiver was
constitutionally valid is a pure question of law. We owe no deference to the trial
court in conducting our analysis; rather, we review this constitutional claim de
novo. Castellon v. United States, 864 A.2d 141, 158 (D.C. 2004) (“This court
applies a de novo standard of review to the legal determination regarding
voluntariness . . . .” (quoting United States v. Turner, 761 A.2d 845, 853 (D.C.
2000))); In re M.A.C., 761 A.2d 32, 38 (D.C. 2000).
47
majority opinion rightly looks to what the detective said to S.W. just before he
waived his rights. The majority opinion also rightly looks to S.W.’s ability to
understand and appreciate his circumstances. S.W. was just fifteen years old and,
as such, was generally more susceptible to influence and coercion.16 Moreover, as
the government attorney in this case acknowledged, S.W. had been diagnosed with
ADHD and depression and was receiving special education and related services;
16
In light of studies further documenting juveniles’ vulnerabilities in
interrogation situations, the American Psychological Association has called for
reforms in interrogation procedures, see AMERICAN PSYCHOLOGICAL ASSOCIATION,
COUNCIL OF REPRESENTATIVES, RESOLUTION ON INTERROGATIONS OF CRIMINAL
SUSPECTS (August 2014), available at http://www.apa.org/about/policy/
interrogations.aspx, and the International Association of Chiefs of Police has
developed a new training program in conjunction with the United States Office of
Juvenile Justice and Delinquency Prevention that “instructs officers to explain
Miranda warnings in language teenagers will understand and not to make false
promises of leniency, because of youth’s proclivity toward gullibility,” Jan
Hoffman, In Interrogations, Teenagers Are Too Young to Know Better, N.Y.
TIMES: WELL (October 13, 2014), http://well.blogs.nytimes.com/2014/10/13/in-
interrogations-teenagers-are-too-young-to-know-better/. See also Barry C. Feld,
Juveniles’ Competence to Exercise Miranda Rights: An Empirical Study of Policy
and Practice, 91 MINN. L. REV. 26, 57-58 (2006) (“Juveniles’ lesser understanding
of rights and appreciation of legal consequences enhances their vulnerability to
interrogation tactics . . . . Youths’ waiver decisions reflect a greater tendency than
adults to comply with authority figures and to acquiesce to police officials.
Interrogation techniques designed for adults may prove especially problematic
when deployed against young suspects.”); id. at 48 (“To summarize,
developmental psychological research assessing several domains of legal and
adjudicative competence consistently indicates that adolescents as a class are at a
significant disadvantage in the interrogation room . . . compared with adults. For
youths fifteen years of age and younger, these disabilities emerge clearly in the
research.”).
48
his circumstances prompted the court to observe at sentencing that S.W. “need[ed]
a lot of work, a lot of help,” both in terms of treatment and medication.17
Beyond these facts, I cannot ignore the timing of S.W.’s interrogation, a
factor that has received little attention. According to the detective who
interrogated S.W., the police arrested S.W. just after the incident at 10:20 a.m., and
conducted a show-up identification soon after. But, as the video recording of the
interview reflects, the detective read S.W. his rights at 11:54 p.m. Thus S.W. was
in custody for over twelve hours before being interrogated,18 and his exhaustion is
evident in the video: when he enters the room, he immediately puts his head on his
knees, as if to go to sleep.
The unexplained twelve-hour wait between arrest and interview, S.W.’s age
and particular cognitive issues, and the confusing, misleading, and coercive
17
Although the trial court found that S.W. did not have immediate mental
health concerns and “seemed lucid,” his competence was not the question. Rather,
the question was the validity of his waiver. As to that legal question, as explained
above, see supra note 15, we do not defer to the trial court and we undoubtedly
may consider S.W.’s youth, cognitive issues, and general mental health.
18
The record is silent as to what the police did with S.W. for those twelve
hours, but this evidentiary deficit counts against the government, as it is the
government’s burden to prove that S.W.’s waiver was voluntary. Dorsey, 60 A.3d
at 1177; Di Giovanni v. United States, 810 A.2d 887, 892 (D.C. 2002) (citing In re
M.A.C., 761 A.2d at 36).
49
Miranda warnings S.W. received before he waived his rights amply support the
majority opinion’s conclusion that S.W.’s waiver was not voluntary. 19 Thus, I
have no reservations about the court’s conclusion that S.W.’s waiver of his
Miranda rights was invalid.
Nevertheless, I think it is ill-advised for the court to resolve this case on
voluntariness grounds for two reasons. First, by upholding the warnings delivered
in this case as effective, this court reduces Miranda warnings to a technicality, an
incantation with no force or real meaning—a result, I submit, that cannot be
squared with the Supreme Court’s decision in Miranda or its progeny. Second and
relatedly, the subjective totality-of-the-circumstances analysis on which the
majority opinion relies is an imperfect safeguard for the rights the Supreme Court
in Miranda sought to protect with clearcut warnings. In other words, although this
opinion gives well-deserved relief to S.W., it dismantles the critical protection that
Miranda is supposed to extend to all individuals who are in custody and subjected
to interrogation. Accordingly, although I concur in the determination that S.W.’s
waiver was involuntary and in the judgment of reversal, I dissent from the decision
not to resolve this case on the ground that the detective’s Miranda warnings were
19
I would not reach the question whether S.W.’s waiver was knowing or
intelligent, but I think it is far from clear that it was.
50
ineffective. These warnings were both confusing and coercive, and they virtually
guaranteed that S.W. would waive the very rights they were meant to protect.
EPSTEIN, Associate Judge, concurring in part and dissenting in part: I
concur in the conclusions that (1) Detective Howland’s prefatory comment did not
make the subsequent Miranda warnings ineffective and (2) S.W. knowingly and
intelligently waived his Fifth Amendment rights. I am, however, constrained to
dissent from the holding that S.W.’s self-incriminating statements were
involuntary. In my view, the majority opinion reaches the incorrect conclusion for
three main reasons. First, the majority opinion incorrectly applies the standard of
review by failing to give the trial court’s reasonable inferences and weighing of the
evidence the deference to which they are entitled. Second, the majority opinion
conflates the well-established distinction between a permissible statement that a
suspect can help himself by cooperating and an impermissible statement that a
suspect will be penalized if he chooses not to talk. Third, the majority opinion
does not follow our precedent when it gives overriding importance to the
detective’s initial statement to S.W. instead of treating it, as the trial court did, as
only one factor in the totality of the circumstances.
51
As the majority recognizes, “‘cases in which a defendant can make a
colorable argument that a self-incriminating statement was “compelled” despite the
fact that the law enforcement authorities adhered to the dictates of Miranda are
rare.’” Dickerson v. United States, 530 U.S. 428, 444 (quoting Berkemer v.
McCarty, 468 U.S. 420, 433 n.20 (1984)). The majority concludes that this is one
of those rare cases. This case, however, is even more rare than the cases
contemplated by the Supreme Court: the majority concludes not just that S.W.
made a “colorable” argument that his statement was compelled, but that his
argument is so strong that we should reject the trial court’s finding that his
statement was voluntary. The evidence that Detective Howland overbore S.W.’s
free will is not so one-sided or overwhelming that we can or should substitute our
judgment for the trial court’s.
Dorsey v. United States, 60 A.3d 1171, 1203 (D.C. 2013) (en banc),
establishes that we must defer to the trial court’s choice between two permissible
views of the overall evidence concerning the voluntariness of a confession. In
Dorsey, we “consider[ed] the question of voluntariness on the present record to be
exceedingly close,” id., but because of the deferential standard of review, we
affirmed the trial court’s finding that the defendant confessed voluntarily.
Similarly in Beasley v. United States, 512 A.2d 1007, 1016 (D.C. 1986), “we d[id]
52
not condone certain of the tactics used by the police in this case, and such tactics
have made this a close case. Yet, we [we]re satisfied that the totality of the
circumstances supports the trial court’s finding of voluntariness.” Here, the
question is not nearly as close as it was in Dorsey and no closer than it was in
Beasley, so affirmance is again the right result.
I. The standard of review
In Dorsey, the court en banc reaffirmed that “[i]n reviewing the denial of a
motion to suppress statements on constitutional grounds, we must defer to the trial
court’s findings of historical fact as long as they are not clearly erroneous.” See 60
A.3d at 1190 (footnote and citations omitted). “The ‘clearly erroneous’ standard of
review is highly constraining; it ‘plainly does not entitle a reviewing court to
reverse the finding of the trier of fact simply because it is … convinced that had it
been sitting as the trier of fact, it would have weighed the evidence differently.’”
Id. at 1205 (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)).
Where “there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.” See 60 A.3d at 1205-06 (quotation
and citation omitted).
53
This deference includes the trial court’s weighing of the evidence: “as a
reviewing court, we may not usurp the prerogative of the [trial] judge, as the trier
of fact, to determine credibility and weigh the evidence.” See Dorsey, 60 A.3d at
1205 (emphasis added, quotation and footnote omitted). In addition, “we must
view … the reasonable inferences that may be drawn from [the facts] in the light
most favorable to sustaining the court’s ruling.” See id. at 1190 (footnote and
citation omitted). Because we defer to the trial court’s weighing of the evidence
and reasonable inferences, deference to a voluntariness finding is required even
when a suspect’s confession was videotaped, although we of course consider
whether the videotape actually supports the trial court’s findings. See id. at 1205.
“However, our review of the trial court’s legal conclusions is de novo.”
Dorsey, 60 A.3d at 1190 (footnote and citation omitted); see, e.g., In re M.A., 33
A.3d 378, 381 (D.C. 2011). This distinction between factual findings and legal
conclusions reflects that “the trial court’s determination of voluntariness is itself a
mixed question of fact and law ….” Frost v. United States, 618 A.2d 653, 657
(D.C. 1992) (quotations and citations omitted).
That said, “an issue does not lose its factual character merely because its
resolution is dispositive of the ultimate” legal question. Miller v. Fenton, 474 U.S.
54
104, 113 (1985) (discussing appellate review of the voluntariness of confessions).
“The answer to the legal question about the voluntariness of the confession may
turn upon the answer to a subsidiary factual question, say ‘whether in fact the
police engaged in the intimidation tactics alleged by the defendant.’” See Teva
Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 842 (2015) (quoting
Miller, 474 U.S. at 112).1 “An appellate court will review the trial judge’s factual
determination about the alleged intimidation deferentially (though, after reviewing
the factual findings, it will review a judge’s ultimate determination of
voluntariness de novo).” Teva Pharmaceuticals, 135 S. Ct. at 842. As we recently
held in a case involving an analogous issue, we review de novo on appeal the
ultimate question of whether evidence withheld in violation of Brady is material,
but we give “due appreciation for the fact-bound nature of that ultimate question”
and therefore “defer in this case to the motions judge’s assessments of credibility,
evaluations of the weight of the evidence and the inferences to be drawn therefrom,
and findings of historical fact, so long as they have record support.” Turner v.
United States, 116 A.3d 894, 915 (D.C. 2015).
1
Teva Pharmaceuticals decided the standard of review of a trial court’s
construction of patents, but it relied on Miller, a case involving the analogous issue
of appellate review of trial court decisions about the voluntariness of confessions.
55
Independent appellate review of ultimate determinations of voluntariness
serves three purposes: (1) “a unitary system of law” requires consistent results in
cases with no significant difference in the facts; (2) independent review is
“necessary if appellate courts are to maintain control of, and to clarify, the legal
principles” because the legal rules “acquire content only through application,” and
(3) “de novo review tends to unify precedent and will come closer to providing law
enforcement officers with a defined set of rules which, in most instances, makes it
possible to reach a correct determination beforehand” about whether their conduct
is constitutional. See Ornelas v. United States, 517 U.S. 690, 697 (1996)
(quotation omitted). Ornelas involved appellate review of determinations of
probable cause and reasonable suspicion, but the reasons for de novo review of the
ultimate question apply equally to voluntariness of a confession.2
Independent appellate review of the ultimate legal question empowers
appellate courts to reject trial courts’ findings of voluntariness when confessions
are “procured by means ‘revolting to the sense of justice.’” Miller, 474 U.S. at 109
(quoting Brown v. Mississippi, 297 U.S. 278, 286 (1936)). De novo review
2
Although Ornelas held that “as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal,”
the Supreme Court “hasten[ed] to point out that a reviewing court should take care
both to review findings of historical fact only for clear error and to give due weight
to inferences drawn from those facts by resident judges and local law enforcement
officers.” Id. at 699.
 56
requires reversal when “certain interrogation techniques, either in isolation or as
applied to the unique characteristics of a particular suspect, are so offensive to a
civilized system of justice that they must be condemned under the Due Process
Clause of the Fourteenth Amendment.” See Miller, 474 U.S. at 109. An appellate
court’s duty to make an independent evaluation of the record “is not limited to
instances in which the claim is that the police conduct was inherently coercive,”
and it “applies equally when the interrogation techniques were improper only
because, in the particular circumstances of the case, the confession is unlikely to
have been the product of a free and rational will.” Id. at 110; see, e.g., Arizona v.
Fulminante, 499 U.S. 279, 287 (1991) (“Although the question is a close one, we
agree with the Arizona Supreme Court’s conclusion that Fulminante’s confession
was coerced” because he was told that his life would be in danger if he did not
confess).
Thus, the “fact-bound” aspect of the ultimate legal question, see Turner, 116
A.3d at 915, is whether a particular suspect’s “will was in fact overborne,” and the
ultimate legal question is “whether the techniques for extracting the statements, as
applied to this suspect, are compatible with a system that presumes innocence and
assures that a conviction will not be secured by inquisitorial means.” See Miller,
474 U.S. at 116. As an appellate court considering the ultimate legal question, we
57
ask whether, “even if [the particular suspect] were unusually resistant to
psychological coercion, ‘the technique used here risks overcoming the will of the
run-of-the-mill suspect.’” United States v. Harrison, 34 F.3d 886, 892 (9th Cir.
1994) (quoting Collazo v. Estelle, 940 F.2d 411, 426 (9th Cir. 1991) (Kozinski, J.,
concurring)).
II. Benefits of cooperation vs. penalties for non-cooperation
Before I turn to the facts of this case, it is useful to discuss a critical
distinction between (1) telling a suspect that he can help himself by cooperating
and (2) telling a suspect he will be penalized if he chooses not to cooperate. The
first type of statement by the police does not necessarily invalidate a confession,
although it may combine with other factors to support a finding that a confession
was involuntary. On the other hand, the second type of statement is highly likely
to preclude a finding that a confession is voluntary.
This court and other courts have consistently held that telling a suspect that
he can help himself by waiving his Fifth Amendment rights is only one factor that
courts should consider in deciding whether a defendant’s statement to the police
was voluntary. Beasley confirms that promises of leniency do not necessarily
58
invalidate a confession: “any alleged promises by the police of leniency in
exchange for a confession must be viewed by the trial court under the totality of all
the surrounding circumstances to determine whether they were sufficient to
overbear [the suspect’s] free will.” 512 A.2d at 1016 (quotation and citation
omitted). Similarly, in United States v. Thomas, 595 A.2d 980, 983 (D.C. 1991),
we concluded that an interview including threats and promises involving
cooperation was “plainly not without its inducive elements” but did not involve
“police oppression or overreaching approaching the type” requiring suppression of
confessions as involuntary. M.A., 33 A.3d at 381-82, concluded that statements by
the detective to the suspect that “the best thing you can do is tell the truth” did not
directly contradict the Miranda warnings or invalidate his voluntary waiver.
Citing M.A. and other cases, the majority opinion agrees that “not all forms of
pressure to waive Miranda rights to avoid adverse consequences are coercive and
in violation of Miranda.”
Likewise, the Supreme Court upheld a trial court’s finding that police
officers’ statements that a cooperative attitude would benefit the suspect did not
coerce the confession, even though the suspect was only 16 years old. Fare v.
Michael C., 442 U.S. 707, 727 (1979). Multiple federal courts of appeal have
concluded that a police officer’s statement that a suspect can help himself by
59
speaking does not render the suspect’s subsequent statement involuntary. E.g.,
United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (“Generally, promises of
leniency will not render a confession involuntary.”); Miller v. Fenton, 796 F.2d
598, 607, 608-10 (3rd Cir. 1986) (a confession was voluntary even though the
interrogator assured the suspect that he just wanted to help and did not believe the
suspect was a criminal who should be punished); United States v. Umaña, 750 F.3d
320, 344 (4th Cir. 2014) (“We have consistently declined to hold categorically that
a suspect’s statements are involuntary simply because police deceptively highlight
the positive aspects of confession,” including telling “the suspect that by talking to
them he would do nothing but help himself” or “things would go easier on the
suspect if he confessed”) (quotations and citations omitted); United States v.
Ornelas-Rodriguez, 12 F.3d 1339, 1348 (5th Cir. 1994) (upholding finding that
defendant voluntarily confessed after being told there were advantages to
cooperation); United States v. Otters, 197 F.3d 316, 318 (8th Cir. 1999) (“The
promise of leniency − not to file charges associated with the traffic stop − was not
enough by itself to make Otters’s statements involuntary.”); United States v.
Okafor, 285 F.3d 842, 847 (9th Cir. 2002) (“Inducements to cooperate are not
improper and do not render a suspect’s statement involuntary unless under the total
circumstances it is plain that they have overborne the free will of the suspect.”).
60
On the other hand, the police may not tell a suspect that exercising his right
to remain silent will make him worse off than he would otherwise be. Albeit in
dictum, Dorsey approvingly quoted Harrison for the proposition that “there are no
circumstances in which law enforcement officers may suggest that a suspect’s
exercise of the right to remain silent may result in harsher treatment by a court or
prosecutor.” Dorsey, 60 A.3d at 1204 & n.109 (quoting Harrison, 34 F.3d at 891-
92). At the same time, Harrison recognized that “the police generally may offer to
tell the prosecutor about the defendant’s cooperation and suggest that cooperation
may increase the likelihood of a more lenient sentence.” 34 F.3d at 891 (citations
omitted). Harrison went on, “In many ways, both types of statements are simply
different sides of the same coin: ‘waive your rights and receive more favorable
treatment’ versus ‘exercise your rights and receive less favorable treatment.’” Id.
However, Harrison drew a substantive distinction between the two types of
statements because “[r]efusal to cooperate is every defendant’s right under the fifth
amendment” and “[u]nder our adversary system of criminal justice, a defendant
may not be made to suffer for his silence.” Id.3
3
We have recognized the same issue in the sentencing context, where a
sentencing judge may impose a lighter sentence if a defendant decides to plead
guilty and accept responsibility, but may not impose a heavier sentence on a
defendant because the defendant decides to exercise his constitutional right to a
jury trial. “The line between affording leniency to a defendant who has admitted
guilt by pleading guilty and punishing one who has denied his guilt and proceeded
61
“The line between proper and permissible police conduct and techniques and
methods offensive to due process is, at best, a difficult one to draw.” Dickerson,
530 U.S. at 444 (quotation and citation omitted). Nevertheless, we draw the line
between (1) statements about the benefits to a suspect of cooperation and (2)
statements threatening harsher treatment of suspects who exercise their
constitutional rights. If the interrogator’s statement is on the wrong side of the
line, our obligation to conduct a de novo assessment of the ultimate legal question
of voluntariness generally requires us to suppress a confession even if the trial
court found that the suspect nevertheless confessed voluntarily. “We can’t allow
police to advise suspects that they will pay dearly for taking advantage of their
right to counsel precisely because some suspects will succumb to the pressure,
even if this suspect did not.” Collazo, 940 F.2d at 427 (Kozinski, J., concurring).
In drawing this line in any specific case, we must keep in mind the fact that
“[c]ustodial interrogations implicate two competing concerns.” See Moran v.
Burbine, 475 U.S. 412, 426 (1986). On the one hand, police interrogation is a
necessary “tool for effective enforcement of criminal laws,” and “[a]dmissions of
guilt are … essential to society’s compelling interest in finding, convicting, and
punishing those who violate the law.” Id.; see Davis v. United States, 512 U.S.
to trial is elusive, to say the least.” Coles v. United States, 682 A.2d 167, 169
(D.C. 1996).
62
452, 461 (1994) (one “side of the Miranda equation” is “the need for effective law
enforcement”). “On the other hand, the Court has recognized that the interrogation
process is inherently coercive and that, as a consequence, there exists a substantial
risk that the police will inadvertently traverse the fine line between legitimate
efforts to elicit admissions and constitutionally impermissible compulsion.”
Moran, 475 U.S. at 426 (quotation and citation omitted). Thus, in deciding
whether the interrogator crossed the line in a particular case, we must strike a
balance between society’s compelling interest in uncoerced admissions of guilt and
protecting suspects from coercion.
III. Applying the standard of review to the facts
If we apply the correct standard of review to S.W.’s confession, the result is
straightforward: the trial court’s finding that S.W.’s will was not overborne is
based on a permissible view of the evidence, so we must defer to it.
The key factor in the majority’s conclusion that S.W.’s confession was not
voluntary is Detective Howland’s brief prefatory statement before he gave the
Miranda warning and before S.W. knowingly and voluntarily waived his
constitutional rights. For the reasons I explain in Section A, characterizing the
63
detective’s statement as threatening a penalty for silence is inconsistent with the
record and fails to give the required deference to the trial court’s inferences. For
the reasons I explain in Section B, the majority opinion errs by giving overriding
weight to the detective’s statement instead of treating that statement, as the trial
court did, as one factor to be weighed in assessing whether S.W.’s will was
overborne. Finally, Section C explains why the reasons for independent appellate
review of ultimate determinations of voluntariness do not support disregarding the
trial court’s weighing of the relevant factors.
A. Detective Howland’s statement
The majority opinion treats Detective Howland’s pre-Miranda statement to
S.W. as an attempt to impose a “penalty” on S.W. for invoking his constitutional
rights. For the reasons explained in Part II, I agree that if Detective Howland had
made such a threat, he would have engaged in prohibited coercion. However, I do
not agree that Detective Howland crossed this line. His statement at most
approached the kind of general statement about benefits of cooperation that we and
other courts have routinely found not to be inherently coercive and to be consistent
with a voluntary waiver.
64
As a threshold matter, we must defer to the trial court’s assessment of
Detective Howland’s ambiguous statements. The majority opinion agrees that the
trial court fairly characterized Detective Howland’s introductory remarks as
general statements that simply provided context for the boilerplate Miranda
warnings that followed. The majority opinion acknowledges that “Detective
Howland did not explicitly tell appellant that ‘it might be worse’ for him if he
invoked his rights, as in Collazo.” The majority opinion adds that Detective
Howland “strongly implied it,” but we should defer to the trial court’s reasonable
inferences from the detective’s words. “An appellate court will review the trial
judge’s factual determination about the alleged intimidation deferentially ….” See
Teva Pharmaceuticals, 135 S. Ct. at 842 (citing Miller, 474 U.S. at 112); Loza v.
Mitchell, 766 F.3d 466, 479 (6th Cir. 2014) (concluding, after reviewing the video
recording and transcript of the defendant’s interrogation, that it was “not
unreasonable” for the state court to determine that the detectives did not threaten to
harm the defendant’s girlfriend and unborn child unless he confessed).
Although he set himself apart from the lions who thought S.W. “did a whole
bunch of stuff,” Detective Howland did not suggest to S.W. that he would give
S.W. a pass if he made incriminating statements. To the contrary, Detective
Howland explicitly told S.W. that he thought S.W. committed the carjacking: “I
65
think what happened today was just a one-time thing.” Moreover, his statement to
S.W. about the lions was immediately followed by the Miranda warning that any
statement by S.W. can be used against him in court. See Jaswal, 47 F.3d at 542
(“There is no inconsistency between the required warning that the defendant’s
statement may be used against him and a further statement that cooperation can
help him” because “[b]oth are true”). The trial court reasonably found that S.W.
understood that he was facing a significant set of charges.
To the extent that Detective Howland implied that cooperation might help
S.W., his statement was not inherently coercive. See Part II above. In Fare, “[t]he
police did indeed indicate that a cooperative attitude would be to respondent’s
benefit,” but the Supreme Court nevertheless upheld a finding that the confession
was voluntary because the officers’ “remarks in this regard were far from
threatening or coercive” – even to a 16-year-old juvenile. 442 U.S. at 727. At
most, Detective Howland implicitly suggested what the interrogator in Fare
explicitly told the juvenile in that case − that a cooperative attitude would benefit
S.W.
As the videotape shows, Detective Howland’s manner makes his words even
farther from threatening or coercive than they may seem in a written transcript.
66
S.W. himself correctly characterizes Detective Howland’s tone as “avuncular.”
Detective Howland was matter-of-fact and low key − not aggressive, threatening,
or overbearing. Cf. Collazo, 940 F.2d at 416 (one factor contributing to
coerciveness was that the interrogator’s tone and presentation were “insistent”).
Detective Howland was also rather distracted: the transcript in the majority
opinion omits that when Detective Howland first started to say “I stand between
you …,” his phone rang, and he looked at his phone and started over; then he again
did something with his phone and had to re-focus his attention. As the trial court
stated, and the videotape confirms, Detective Howland kept his physical distance
from S.W. – not getting in S.W.’s face or space.
The majority opinion characterizes Detective Howland’s statement “as a
veiled threat” to penalize S.W. if he invokes his constitutional rights. It was up to
the trial court to determine what, if anything, was behind any veil, but the record
indicates that Detective Howland’s statement was not a threat, veiled or otherwise.
It would be coercive if Detective Howland had told S.W., as the detectives told the
suspect in Dorsey, that law enforcement officials “are going to up the charges
unless you tell the truth.” See 60 A.3d at 1186. But Detective Howland said
nothing like that. He stated that the lions had already concluded that S.W. “did a
whole bunch of stuff,” and he did not tell S.W. – directly or indirectly − that the
67
lions would try to pin other crimes on S.W. only if he remained silent. I therefore
do not agree with the majority opinion that Detective Howland told S.W. that the
lions would attempt to hold him responsible for crimes in addition to the carjacking
“unless appellant accepted the opportunity ‘to give [his] version of what
happened.’” At most, the detective said that things were already bad for S.W. and
might get better if he talked – not that things were not nearly as bad as they would
become if he chose not to talk.
The majority opinion also states, “Taken together, these statements seem to
suggest that if appellant remained silent, he would face fabricated charges for
things that he did not do.” There is absolutely no support in the record for any
speculation that (1) the lions would fabricate charges if S.W. remained silent, or
(2) the lions had already fabricated charges and did not genuinely believe S.W. was
guilty of any crime other than the carjacking. Notably, S.W. does not argue that
the “lions” fabricated other charges or that they would do so if and only if he
remained silent, and he attributes to them only an “erroneous belief” that S.W. was
responsible for other crimes. When Detective Howland testified at the hearing on
the suppression motion, the defense did not elicit, and the government had no
reason to elicit, testimony from him about the good faith of the other officers. In
any event, to overturn the trial court’s finding that S.W.’s will was not overborne,
68
we need more than statements that only “seem to suggest” that the police were
overreaching.
For these reasons, the majority’s spin on Detective Howland’s words
effectively erases the critical distinction discussed in Part II between telling a
suspect that cooperation will benefit him and telling him that he will be penalized
if he exercises his rights. If Detective Howland’s words constitute a threat to
impose a penalty on S.W. for invoking his constitutional rights, then any and all
statements that any interrogator makes about the benefits of cooperation would
constitute a threat. The majority opinion asserts, “In essence, by portraying
himself as protective from the ‘lions out there,’ Detective Howland supplied the
reverse implication: that if appellant does not waive his rights, Detective Howland
will throw him to the ‘lions.’” But if any statement that cooperation will help
necessarily has the “reverse implication” that the interrogator will retaliate against
the suspect if he does not cooperate, the distinction between the two types of
statements would be eliminated. A defendant who chooses to forego any benefit
from cooperation by remaining silent may end up worse off than if he had chosen
to talk, but that does not mean he would be penalized for his silence. By drawing
the distinction between promises of benefits from cooperation and threats of
retaliation for non-cooperation, the courts have struck the appropriate balance
69
between (a) protecting society’s compelling interest in keeping interrogation as an
effective tool to elicit confessions from guilty people and (2) protecting innocent
people from an interrogation process that is inherently coercive. See Moran, 475
U.S. at 426-27. The majority opinion upsets this balance and undermines this
compelling societal interest.
Put differently, Detective Howland did not say anything calculated to
produce a false confession about the carjacking. It is “necessarily coercive” for the
police to engage in “conduct that influences a rational person who is innocent to
view a false confession as more beneficial than being honest,” so “our task is to
examine whether [the suspect] was not able to make a rational decision due to
promises made by the interrogating detective.” See United States v. Villalpando,
588 F.3d 1124, 1128 (7th Cir. 2009). Detective Howland did not say anything that
would influence a rational person who is innocent to decide that a false confession
to the carjacking would make him better off than remaining silent. As with the
juvenile’s confession in In re D.A.S., 391 A.2d 255, 259 (D.C. 1978), “the record
provides an adequate basis for the trial court’s conclusion that the confession was
the product of a knowing, intelligent and voluntary waiver of appellant’s rights,”
70
and the interrogation technique “practiced here by the police was not of the sort
which would induce a false confession or would overcome the appellant’s will.”4
B. The totality of the circumstances and the weighing of the evidence
“The presence of official compulsion – ‘coercive police activity’ or ‘police
overreaching’ − is a necessary predicate to the finding that a confession is not
voluntary within the meaning of the Due Process Clause.” Turner, 116 A.3d at
935. “That said, in determining whether a defendant’s will was over-borne in a
particular case, the Court has assessed the totality of all the surrounding
circumstances − both the characteristics of the accused and the details of the
interrogation.” Id. (quotation, brackets, and citation omitted). Likewise, “the
totality-of-the-circumstances analysis still applies in determining the validity of the
waiver and the voluntariness of the statement even though the interrogation
involves a juvenile.” In re M.A.C., 761 A.2d 32, 36 (D.C. 2000) (citing Fare, 442
4
The other dissenting opinion suggests that in making these statements
based on holdings in our earlier cases, I am losing sight of the purpose of Miranda
warnings not only to forestall false confessions but also to protect the privilege
against self-incrimination. As D.A.S. indicates, relevant to whether an
interrogator’s statement is coercive is whether the statement is likely to elicit a
false confession. Detective Howland’s statement does not fall into that category.
There is no suggestion that S.W. confessed to a crime he did not commit; the
victim identified S.W. in a show-up shortly after the carjacking and again at trial,
and S.W. did not contest at trial the victim’s account of his actions.
71
U.S. at 725). “‘[A]dmissions and confessions of juveniles require special
caution,’” but even with juveniles, “rather than giving overriding importance to
any one factor, the court must consider the totality of circumstances surrounding
the confession.” See D.A.S., 391 A.2d at 258 (quoting In re Gault, 387 U.S. 1, 45
(1967)).
Instead of treating Detective Howland’s alleged threat as only a “necessary
predicate” to a finding of involuntariness, the majority opinion gives it the
“overriding importance” that D.A.S. holds it should not get. The trial court
properly considered all the relevant factors in examining the totality of the
circumstances, and its comprehensive analysis reasonably supported its finding
that S.W.’s confession was voluntary. As the majority opinion states, the
voluntariness “inquiry rests on many of the same factors mentioned in our
‘knowing and intelligent’ inquiry,” and the same factors that the majority opinion
agrees demonstrate that S.W. waived his rights using his own rational thought and
intellect also demonstrate that he waived them voluntarily.
As I discussed in Section A, Detective Howland made only a general, non-
threatening suggestion that S.W. might help himself by cooperating, and his
manner was avuncular and matter-of-fact − not aggressive or relentless. After his
72
prefatory statement, Detective Howland immediately gave effective Miranda
warnings, and as the majority opinion recognizes, it is a “rare” case “in which a
defendant can make a colorable argument that a self-incriminating statement was
‘compelled’ despite the fact that the law enforcement authorities adhered to the
dictates of Miranda ….” Dickerson, 530 U.S. at 444 (quotation and citation
omitted). The other relevant factors also strongly support, or are consistent with,
the trial court’s finding of that S.W.’s confession was not coerced.
First, several objective factors involving the structure of the interview
support the finding of voluntariness. Detective Howland was the only detective
present during the interview, so this is not a case where a group of interrogators
bore down on a lone suspect. S.W. confessed immediately after Detective
Howland began asking questions, and S.W. was not worn down by hours of
relentless questioning. See In re J.F., 987 A.2d 1168, 1177 (D.C. 2010) (“J.F.’s
vulnerability was exacerbated by the fact that he was questioned for three hours
….”); Miller, 796 F.2d at 606 (an interrogation lasting less than an hour “was not
‘a process of interrogation … so prolonged and unremitting, especially when
accompanied by deprivation of refreshment, rest or relief, as to accomplish
extortion of an involuntary confession’”) (quoting Stein v. New York, 346 U.S. 156,
184 (1953)). Including interruptions from his phone, the detective’s comments
73
about the “lions” took literally 30 seconds, and he spent more time administering
the Miranda warnings that followed.
Second, S.W.’s behavior and demeanor strongly support the trial court’s
finding. Even though S.W. was only 15 years old, he maintained a steady and
calm demeanor when he waived his Miranda rights and answered the detective’s
questions about what happened that afternoon. Nothing in S.W.’s words or body
language indicates that he was intimidated or frightened or confused by Detective
Howland’s statement about the lions or that it affected his decision to answer the
questions about the incident at the gas station. See Beasley, 512 A.2d at 1016
(“appellant’s own behavior during the interrogation indicates that the officers’
statements were not sufficient to coerce a … confession.”).5
5
The majority opinion states that “there is some confusion as to how long
appellant had been in custody” when his brief interview began, and that this factor
“appears to weigh in favor of an involuntary waiver.” The other dissenting opinion
attributes significance to the gap between S.W.’s arrest (which was shortly after
the carjacking) and the interview. S.W. did not make this argument, even though
he is represented by highly competent counsel. S.W. states in his brief that the
interview began at 11:54 “a.m.” shortly after he was arrested, and this indicates to
me that Detective Howland simply misspoke when he said “p.m.” instead of “a.m.”
when he began the interview. In any event, if we are concerned about an issue that
was not briefed here or raised in the trial court, we should ask the parties to brief
the issue or remand the case to the trial court for further evidence or at least
additional findings. For example, although the other dissenting opinion asserts that
S.W.’s “exhaustion is evident in the video,” exhaustion is not evident to me.
74
In these circumstances, the trial court reasonably found that S.W. wanted to
talk about the carjacking incident. The trial court did not make a factual finding
about the specific reason why S.W. decided to admit his involvement in the
carjacking, but many people who understand that their statements can be used
against them nevertheless confess without any coercion. Cf. Dorsey, 60 A.3d at
1205 (where the trial court found that Mr. Dorsey confessed because he was
remorseful); Miller, 796 F.2d at 613 (“Many criminals experience an urge during
interrogation to own up to their crimes ….”).6 As the trial court also found, S.W.
picked and chose the questions he wanted to answer, and he had no difficulty
deciding not to answer certain questions – an approach inconsistent with any
supposition that his will was overborne because the interrogator convinced him
that his situation was hopeless. I would add that S.W. did not testify or present any
direct evidence that he felt intimidated or coerced by anything Detective Howland
said or did or that he understood the detective to be telling him that the detective
would throw him to the lions unless he talked to him without a lawyer. 7
6
Cf. Towles v. United States, 115 A.3d 1222, 1229 (D.C. 2015) (many
people voluntarily consent to searches by the police even though they know that
the searches will reveal contraband).
7
The government could not have used S.W.’s testimony at the suppression
hearing against him in its case-in-chief at trial. See Simmons v. United States, 390
U.S. 377, 394 (1968).
75
Third, “no special factors indicated that [S.W.] was unable to understand the
nature of his actions.” See Fare, 442 U.S. at 726 (upholding the voluntariness of a
confession of a 16-year-old suspect). “There is no indication that [S.W.] was of
insufficient intelligence to understand the rights he was waiving, or what the
consequences of that waiver would be.” See id. As the majority opinion agrees,
the trial court noted the absence of mental health concerns. The trial court did not
rely on information that S.W. had been in custody before, because there were no
real specifics about his prior contacts with the criminal justice system, including
prior Miranda warnings. See Fare, 442 U.S. at 726 (discussing the significance of
prior experience with the police).
On this record, the trial court reasonably concluded that S.W. confessed
because he made a voluntary decision to waive the rights that he understood he
had, and the “special caution” with which we must consider confessions by
juveniles (see In re D.A.S., 391 A.2d at 258) does not compel the conclusion that
S.W.’s confession was coerced. In the circumstances of this case, the trial court’s
finding concerning the subsidiary factual question (was S.W.’s will overborne?) is
dispositive of the ultimate legal question of voluntariness, which itself has a fact-
bound nature. See Teva Pharmaceuticals, 135 S. Ct. at 841-42; Turner, 116 A.3d
at 915. The deferential nature of the review in these circumstances helps to explain
76
why we have affirmed in close cases where the trial court found a confession to be
voluntary. See, e.g., Dorsey, 60 A.3d at 1203; Beasley, 512 A.2d at 1016.
I do not suggest that the majority’s view of the evidence is unreasonable. If
the trial court had drawn the same inferences from the historical facts that the
majority opinion draws and weighed the factors relevant to voluntariness in the
same way the majority opinion does, and if the government had then appealed a
finding that S.W.’s confession was not voluntary, I would affirm the ruling under
the deferential standard of review. However, Dorsey is only one in a long line of
cases that precludes us from usurping the trial court’s role, and it requires us to
affirm if the trial court’s weighing of the evidence is permissible, even if we would
weigh the evidence differently if we were the factfinders. I consider the trial
court’s weighing of the evidence as a whole to be eminently reasonable: S.W.’s
age and Detective Howland’s preface may have created a risk that S.W. would feel
pressured to waive his rights; but the risk did not in fact materialize because the
detective’s comment preceding the Miranda warnings was not threatening or
coercive, his tone was avuncular, S.W. was composed and relatively mature for his
age, and S.W. unhesitatingly decided to confess in a brief interview in which he
chose not to answer numerous other questions.
77
C. A middle-of-the-road ruling
For the reasons explained in the preceding sections, the trial court’s finding
on this record that S.W.’s statement was voluntary is fully consistent with
precedent and “with a system that presumes innocence and assures that a
conviction will not be secured by inquisitorial means.” See Miller, 474 U.S. at
116. As I discussed in Part I, it is only when interrogation tactics are “revolting to
the sense of justice” or “offensive to a civilized system of justice” that appellate
courts must reject the trial court’s finding of voluntariness. See id. at 109
(quotation and citation omitted). Detective Howland’s approach did not come
close to violating that standard. The majority opinion does not demonstrate that
Detective Howland’s statements were different in kind or even degree from the
statements by interrogators about the benefits of cooperation that courts have
consistently held do not preclude a finding of voluntariness.
Because the trial court’s voluntariness finding is in the mainstream,
overturning it would not serve, and would in fact undermine, the purposes of
independent appellate review of the ultimate legal determination. See Section I
above. First, reversing the trial court’s ruling would produce a result inconsistent
with the results in cases with comparable facts. Second, it would leave law
78
enforcement officers with a more poorly defined and indeed newly conflicting set
of rules about how to conduct interrogations. Third, we can “maintain control of
… the legal principles” without reversing the trial court here. See Ornelas, 517
U.S. at 697.
The majority opinion compares this case to Collazo, but the totality of the
circumstances there stand in sharp contrast to the totality of the circumstances
concerning S.W. In Collazo, the police conduct was egregious by any standard,
and the Ninth Circuit emphasized circumstances that are simply not present here.
One critical difference is that that Mr. Collazo confessed after he invoked his right
to counsel and a police officer then made coercive statements in order to induce
Mr. Collazo to change his mind. Instead of respecting Mr. Collazo’s request to
talk to a lawyer, one of two officers (Officer Destro) told him, “This is your last
chance to talk to us” and “it might be worse for you” if he followed his lawyer’s
advice not to talk to the police. 940 F.2d at 414. The Ninth Circuit concluded that
Officer Destro’s words, “understood plainly, were coercive,” and his “warning that
it ‘might be worse’ for Collazo if he did not cooperate with the police can only be
seen as menacing” and as attempting “to impose a penalty on” Collazo’s
invocation of his constitutional rights. Id. at 414, 417. That conclusion was
supported by the prosecutor’s own characterization of “Officer Destro’s tone and
79
presentation as ‘insistent.’” 940 F.2d at 416. The Ninth Circuit also pointed to
credible testimony from the defendant: “Collazo testified he was scared, and that
Officer Destro’s threats are what caused him to change his mind and talk without
counsel.” Id. at 421. The Ninth Circuit stressed (as we did in Dorsey, 60 A.3d at
1200-01) that “[a]t a point where the law required him to back off, [the
interrogator] did not scrupulously honor Collazo’s right to cut off questioning; he
stepped on it.” Id. at 417.
Here, in contrast, S.W. did not ask to speak with a lawyer and instead
knowingly and unhesitatingly waived his right to do so after Detective Howland
gave Miranda warnings. Nor did Detective Howland “demean[] the pre-trial role
of counsel … by dispensing a one-sided, unauthorized legal opinion.” Collazo,
940 F.2d at 418. In addition, S.W. did not testify, as Mr. Collazo did, that he was
scared and that the interrogator’s statement was the reason he decided to waive his
rights and confess.8
8
I do not agree with the majority that Di Giovanni v. United States, 810
A.2d 887 (D.C. 2002), and Lee v. State, 12 A.3d 1238, 1250-51 (Md. 2011), are
“contra” to the trial court’s conclusion. Di Giovanni concluded that the
defendant’s waiver was not knowing and intelligent because he “was initially
misinformed and confused as to what [his constitutional rights were.” 810 A.2d at
892. The interrogator “went beyond telling appellant that he couldn’t have a
lawyer during the interview, but basically told him he ‘didn’t think he would need
one’” and that ‘it would be best if [he] told [his] side of the story,’” and additional
facts supporting our conclusion that Di Giovanni’s waiver was not knowing or
80
On the other hand, this is no more difficult a case than the two cases that we
considered close and in which we still upheld the trial court’s finding that the
confessions were voluntary. Dorsey is much closer to the line, and Beasley is no
further from the line – even taking into account that the suspects in these two cases
were adults, not juveniles like S.W.
Look at the facts in Dorsey:
 “Dorsey endured a grueling overnight interrogation during which, as the
government concedes, detectives violated the rules of Miranda v. Arizona
and Edwards v. Arizona by continuing to press him to confess after he
invoked his Fifth Amendment rights − both his right to cut off further
questioning and remain silent, and his right to have counsel present during
his questioning.” Dorsey, 60 A.3d at 1176-77
 The detectives expressly told Mr. Dorsey that the prosecutors “are going to
up the charges unless you tell the truth.” Id. at 1186
 In the five-and-one-half hours after the defendant asserted his Fifth
Amendment right to counsel, three officers “persisted in trying a variety of
intelligent were “the officers’ awareness of Di Giovanni’s low intellectual
capacity, Di Giovanni’s physical condition, [and] his unfamiliarity with the
Miranda warnings.” Id. at 894. In Lee, the detective’s statement that “this is
between you and me, bud” violated Miranda by “undermining the warning” that
the defendant’s statements could be used against him. 12 A.3d at 1250-51.
81
techniques to persuade Dorsey to give in and confess.” Among other things,
“[t]hey deprived him of needed sleep, ignored his evident physical
discomfort and symptoms of alcohol withdrawal, and emphasized his
powerlessness until they ‘finish[ed] up what [they] ha[d] to do;’” and “[t]hey
disparaged Dorsey’s desire to talk to a lawyer and to go to court, implying
that counsel would give him bad advice and that he could not receive a fair
trial.” Id. at 1197.
 The detectives “took no curative measures at all to counter the impact of the
improper badgering Dorsey had endured.” Id. at 1198.
 “The [detectives’] violations of Miranda were flagrant: Ross and Thompson
persisted in questioning Dorsey and urging him to change his mind despite
his repeated assertions of his constitutional rights; verbally abused him (e.g.,
by repeatedly calling him a liar); disparaged his request for counsel and a
hearing in court as contrary to his best interests; misrepresented to him the
benefits of confessing before consulting with counsel (e.g., telling Dorsey
that he could plead to ‘a straight robbery’ so that ‘all that other shit don’t
come in’); threatened that the prosecutors would ‘up the charges’ if he did
not confess; exaggerated the strength of the evidence against him; and fed
him what he should say to put himself in a more appealing light.” Id. at
1200-01.
 82
 “It was as if the detectives had told him explicitly that his Miranda rights
were inoperative on this occasion.” Id. at 1202.
It was on these facts that “[w]e consider[ed] the question of voluntariness on the
present record to be exceedingly close” and concluded that “such overreaching
tactics must be condemned.” Id. at 1203-04. We deemed it “particularly troubling
the detectives’ warnings to Dorsey that he would suffer adverse consequences if he
insisted on consulting counsel and exercising his constitutional rights, their
provision of dubious legal advice to sway Dorsey’s judgment, and their
suggestions as to what story Dorsey could tell to minimize the gravity of his
crimes.” Id. at 1204. Yet we upheld the voluntariness of the confession that Mr.
Dorsey made after he had gotten some sleep and some food and decided that he
was remorseful about his actions. Id. at 1205-1206.
However critical one may be of Detective Howland’s statements to S.W.,
they did not begin to approach the blatant overreaching in Dorsey, and virtually all
of the other relevant factors indicate that S.W.’s confession was voluntary. Among
other things, Detective Howland did not ignore any invocation of rights, and his
comment that he stood between S.W. and the “lions” was immediately followed by
explicit and effective Miranda warnings.
83
In Beasley, we upheld the trial court’s voluntariness finding and rejected Mr.
Beasley’s argument that the interrogators’ promises of leniency and their
deceptions about the strength of the government’s evidence constituted
psychological coercion. After Mr. Beasley waived his rights and denied any
knowledge of the alleged crime, the interrogating officers “told appellant that he
should ‘help himself’ and ‘tell the truth’” and that “any cooperation would be
communicated to the prosecutor,” and they “repeated a number of misleading
statements to appellant concerning the strength of the evidence against him.” 512
A.2d at 1016. The defendant decided to confess only after he met with a detective
whom he knew and trusted and who told him to “tell the truth” about the homicide.
Id. at 1010, 1016. “We th[ought] it is beyond dispute that these remarks were
intended to cause appellant to believe that he might as well confess because the
weight of the evidence against him was overwhelming,” and we could not “say
with certainty that such statements had no effect whatsoever on appellant’s state of
mind.” Id. at 1016. But even though we did not condone the police tactics that
made it a “close case,” we concluded “that appellant’s own behavior during the
interrogation indicates that the officers’ statements were not sufficient to coerce a
false confession.” Id.
84
By the same token, even if Detective Howland’s suggestion that S.W. should
help himself by talking had some effect on S.W.’s state of mind, S.W.’s behavior
during the interview, and the other relevant factors, indicate that the suggestion
was not sufficient to coerce a false confession. There is no evidence that Detective
Howland’s statement about the “lions” was inaccurate or misleading. The
detectives in Beasley made statements to overcome Mr. Beasley’s initial refusal to
confess, and Detective Howland did not have the history with S.W. that the
detective who finally persuaded Mr. Beasley to talk had with Mr. Beasley.
For all of these reasons, I would uphold the trial court’s denial of S.W.’s
motion to suppress his confession.