1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 124,329

STATE OF KANSAS,

Appellant,

v.

PHILLIP JASON GARRETT,

Appellee.

SYLLABUS BY THE COURT

1.

The protections of the Fifth Amendment to the United States Constitution, made 

applicable to the states through the Due Process Clause of the Fourteenth Amendment, 

prohibit the State from relying on coerced or involuntary statements to establish a 

defendant's guilt. But these protections do not justify evidentiary suppression of 

confessions that are either unrelated to law enforcement tactics, or are connected to, but 

not causally related to, law enforcement tactics that constitute misconduct.

2.

When determining whether a confession was obtained in violation of due process, 

a reviewing court must first consider the totality of the circumstances to determine 

whether any related law enforcement tactics constituted misconduct. If such law 

enforcement tactics do not constitute misconduct, a resulting confession cannot be

rendered inadmissible because of those tactics. 

3.

If law enforcement committed misconduct related to a confession, a reviewing 

court must then assess whether, under the totality of the circumstances, the misconduct 
2

caused the confession. In other words, the court must consider whether the misconduct 

caused the defendant's free will to be overborne, such that the resulting confession was

not voluntary. If that happened, law enforcement has violated due process and the 

resulting confession must be suppressed.

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 21, 

2022. Appeal from Saline District Court; JARED B. JOHNSON, judge. Oral argument held May 15, 2023. 

Opinion filed September 20, 2024. Judgment of the Court of Appeals reversing the district court is 

affirmed. Judgment of the district court is reversed and remanded.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Derek Schmidt, attorney 

general, was with him on the briefs for appellant. 

D. Justin Bravi, of Salina Regional Public Defender Office, argued the cause, and Mark J. Dinkel, 

of the same office, was with him on the briefs for appellee.

The opinion of the court was delivered by

WILSON, J.: Police interviewed Phillip Jason Garrett after he was accused of 

inappropriately touching a minor, L.A. Garrett confessed to some of the allegations 

during the interview. The district court suppressed his statements after concluding they 

were involuntary. A panel of the Court of Appeals reversed, holding the district court 

placed undue weight on the deceptive police practices while excluding "nearly all other 

relevant components of the inquiry." State v. Garrett, No. 124,329, 2022 WL 12129643, 

at *6 (Kan. App. 2022) (unpublished opinion). Garrett petitioned for review. We affirm 

the Court of Appeals' reversal of the district court.
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FACTUAL AND PROCEDURAL BACKGROUND

In November 2018, L.A.'s biological father reported to Salina police that he found

text messages on L.A.'s phone showing Phillip Garrett inappropriately touched her. L.A. 

was under 14 years-of-age at the time. Police interviewed L.A., and she confirmed 

Garrett had touched and penetrated her vagina and anus multiple times and rubbed her 

chest. Officers contacted Garrett and requested he come to the police station, and Garrett 

agreed. 

Detective Tim Brown and Detective Gregory Jones interviewed Garrett in a 

locked room inside the police headquarters. The interview began with Detective Jones 

telling Garrett that Jones needed to "jump through some hoops" because the interview 

was taking place behind locked doors and Jones was a "cop and I ask questions." Jones 

then read Garrett his Miranda rights. The officers asked Garrett about the allegations, and 

Garrett denied them. 

The officers then asked Garrett if he would submit to a computerized voice stress 

analysis (CVSA) to verify the truth of his statements. Garrett was hesitant, telling the 

officers he was very nervous and stressed and worried the stress would negatively impact 

the results of the test. The detectives offered to bring in Sergeant Sarah Cox, who 

administers the tests, to better explain the test and allay his fears. While they waited for

Sergeant Cox, Detective Brown told Garrett the CVSA is more accurate than a 

polygraph.

Sergeant Cox entered the interview room and described the test to Garrett. She 

told him, "They're just a series of yes or no questions. If you're telling us the truth, then 

you should have no problem, okay? But if you're lying about these specific questions, the 

stress is going to pop up on those charts like nobody's business and we're gonna know. It 

is 100% effective." When Detective Brown let Sergeant Cox know Garrett was worried 
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his general stress was going to alter the results of the test, Cox told him "this test is 100% 

effective and what I mean by that [is] it doesn't matter if someone is drunk or high or 

sober, it's still going to measure that frequency and that stress in your vocal cords."

Detective Brown told Garrett they appreciated his cooperation so far and thought he 

would want to continue to cooperate. Garrett eventually agreed to submit to the test. 

Sergeant Cox led Garrett into a separate room to complete the CVSA. Before they 

began, Sergeant Cox handed Garrett a form to read and sign titled "Truth Verification 

Release Form." The form stated that Garrett was submitting to the test without any 

"threat, coercion, promise, reward or immunity," and that Garrett released all involved 

parties from any liability associated with the exam. The form also stated that Garrett 

understood all materials and recordings from the exam could be released for the purposes 

of testimony. The bottom of the form included Garrett's Miranda rights. Sergeant Cox 

read each right aloud to Garrett and had him initial beside each one.

After Garrett signed the form, Sergeant Cox offered more details about the exam:

"[T]he CVSA is actually a tool that's used all over the United States, even the military 

uses it, to verify whether someone is telling the truth. Okay? Instead of being called a lie 

detector test, the CVSA is considered a truth verification exam, and it is 100% effective. 

Okay? The CVSA works by analyzing the stress of one's voice when asked specific 

questions to determine whether the person being asked those questions is telling the truth 

or a lie. The test activates off of voice frequency alone so again it doesn't matter how 

high, drunk, sober a person is, it's going to be 100% accurate."

Sergeant Cox said, "by the time we're done in here, we're going to know what 

happened and what the truth is." She then administered the test and returned Garrett to 

the interview room. 
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After that, Sergeant Cox analyzed the results and concluded "there was stress 

present, and stress is an indication of deception." She then contacted another CVSA 

examiner to analyze the results, which is standard protocol. The two examiners then 

discussed the results and their separate analyses. Their discussion did not cause Cox to 

change her opinion about the test results.

The officers told Garrett the test had registered stress when Sergeant Cox asked if 

Garrett had touched L.A.'s anus. Garrett still denied the allegations. Detective Brown said

he could tell Garrett loved L.A., and that his love had caused him to make a bad decision. 

The officers said they wanted to tell the prosecutor Garrett had been cooperative. Garrett 

eventually confessed to rubbing L.A.'s vagina four or five times. 

The State charged Garrett with 11 counts of rape, 8 counts of aggravated indecent 

liberties with a child, 1 count of aggravated indecent solicitation of a child, and 2 counts 

of aggravated criminal sodomy. 

Garrett moved to suppress the statements he made during the interrogation, 

arguing they had been coerced. The district court held a hearing on the motion, during 

which Detectives Jones and Brown and Sergeant Cox testified. The court admitted the 

recordings of the interview and the CVSA results. Gary Davis, a defense expert, testified 

about the CVSA and its accuracy. He stated that while he was not familiar with how the 

test is administered, the CVSA is a real test that has been used in official settings. But 

Davis also testified the test was "[n]o better than flipping a coin" to detect truthfulness. 

And he agreed literature shows it to be only 15 to 50 percent accurate in detecting 

truthfulness and that the CVSA cannot discriminate general stress from "case-specific"

stress.
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The district court initially concluded that Garrett's statement had been voluntary 

and denied the motion to suppress. We will discuss the district court's findings in more 

detail below.

Eighteen months later, before trial, the district court reversed its own judgment sua 

sponte. The court reconsidered the totality of the circumstances and—based largely on 

the officers' deceptive description of the accuracy of the CVSA and the postexam 

interview tactics—concluded Garrett's statements were involuntary. The court then

suppressed Garrett's statements. 

The State filed an interlocutory appeal, and the Court of Appeals reversed. 

Garrett, 2022 WL 12129643, at *6. The panel majority concluded the district court 

focused "almost entirely" on "its discontent with the CVSA and its attendant discussions, 

rather than adhering to its obligation to conduct a full and fair assessment based on the 

totality of the circumstances." 2022 WL 12129643, at *6. Judge Hurst concurred but 

wrote separately. 2022 WL 12129643, at *6-11 (Hurst, J., concurring). We granted 

Garrett's petition for review.

ANALYSIS

Garrett argues the Court of Appeals erroneously reversed the district court's 

suppression by reweighing evidence and considering the officers' deceptive tactics in 

isolation rather than together with other coercive factors. He contends that, without these 

errors, the totality of the circumstances shows his statements were involuntary. 

Standard of Review

When reviewing a district court's suppression order, an appellate court reviews the 

district court's "findings about historical facts regarding the circumstances of the 

confession as issues of fact"; thus, such findings "about these factors must be supported 
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by substantial competent evidence or, in other words, evidence that a reasonable person 

could accept as adequate to support a conclusion." State v. G.O., 318 Kan. 386, 407, 543 

P.3d 1096 (2024). In making this determination, an appellate court "does not reweigh the 

evidence, assess witness credibility, or resolve evidentiary conflicts" and disregards "any 

conflicting evidence or other inferences that might be drawn from the evidence." G.O., 

318 Kan. at 407. After assessing the evidentiary sufficiency of the district court's 

findings, an appellate court then reviews the district court's ultimate legal conclusion de 

novo. State v. Palacio, 309 Kan. 1075, 1081, 442 P.3d 466 (2019). As we recently 

explained, this involves our consideration of

"whether the state actor overreached, the determination of how the accused reacted to the 

external facts, and the legal significance of the reaction as issues of law. We examine the 

totality of circumstances and assess de novo the trial judge's legal conclusion based on 

those facts. This means we give no deference to the trial judge's legal conclusion that [the 

accused] did not voluntarily confess." G.O., 318 Kan. at 407.

Garrett argues the Court of Appeals erroneously reweighed the evidence and 

incorrectly assessed the legal effect of some of the district court's factual findings. Both 

arguments present legal questions subject to unlimited review. See State v. Neighbors, 

299 Kan. 234, 240, 328 P.3d 1081 (2014); Palacio, 309 Kan. at 1081. 

Discussion

The Fifth Amendment to the United States Constitution, made applicable to the 

states through the Fourteenth Amendment Due Process Clause, prohibits the State from 

compelling anyone "in any criminal case to be a witness against himself." This protection 

bars the State from relying on coerced or involuntary statements to establish a defendant's 

guilt. Palacio, 309 Kan. at 1087. A statement can be involuntary even if officers read a 

defendant their Miranda rights and the defendant waived a right to counsel. 309 Kan. at 

1087. 
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Due process protects against involuntary confessions caused by coercive police 

tactics. These tactics fall into two broad categories: "(1) Those that are inherently 

coercive and a per se violation of the Due Process Clause and (2) those where a state 

actor uses interrogation techniques that because of the unique circumstances of the 

suspect are coercive." G.O., 318 Kan. at 397. The former group includes "interrogation 

techniques that in isolation are inherently offensive to a civilized system of justice" and 

usually involve "coercive techniques that included extreme psychological pressure or 

brutal beatings and other physical harm." 318 Kan. at 397-98. While Garrett claims the 

police's tactics were coercive, he does not argue they were of the sort that is "inherently 

offensive to a civilized system of justice."

When confronted, as here, with a confession alleged to have been caused by law 

enforcement tactics that were coercive (and thus misconduct) "because of the unique 

circumstances of the suspect," we consider the totality of the circumstances, including 

circumstances relevant to both law enforcement and the accused, to determine first

whether the law enforcement tactics used in this instance constituted overreaching 

misconduct. In the absence of the State abusing its power, a confession does not violate 

due process. If such misconduct is found, appellate courts then must undertake a causal 

analysis to determine whether the misconduct resulted in the challenged confession.

G.O., 318 Kan. at 398. That causal analysis is necessary if misconduct is found because 

the mere presence of police misconduct connected to a confession is not enough to 

require suppression. The misconduct must cause the defendant's free will to be 

overborne, such that the resulting confession is not voluntary. When that happens, law 

enforcement has violated due process and it is appropriate to suppress the confession for 

that violation. See G.O., 318 Kan. at 400. The State bears the burden of proving the 

voluntariness of a defendant's confession by a preponderance of the evidence. 318 Kan.

403-04 (citing State v. Brown, 286 Kan. 170, 172, 182 P.3d 1205 [2008]).
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So what are the characteristics of law enforcement tactics and the accused to be 

considered here? Because we have described these characteristics, or factors, as 

nonexclusive, "any relevant factor may—and should—be considered." G.O., 318 Kan. at 

402. Still, we have previously identified several such factors:

"Potential details of the interrogation that may be relevant include: the length of 

the interview; the accused's ability to communicate with the outside world; any delay in 

arraignment; the length of custody; the general conditions under which the statement took 

place; any physical or psychological pressure brought to bear on the accused; the officer's 

fairness in conducting the interview, including any promises of benefit, inducements, 

threats, methods, or strategies used to coerce or compel a response; whether an officer 

informed the accused of the right to counsel and right against self-incrimination through 

the Miranda advisory; and whether the officer negated or otherwise failed to honor the 

accused's Fifth Amendment rights.

"Potential characteristics of the accused that may be relevant when determining 

whether the officer's conduct resulted in an involuntary waiver of constitutional rights 

include the accused's age; maturity; intellect; education; fluency in English; physical, 

mental, and emotional condition; and experience, including experience with law 

enforcement." G.O., 318 Kan. at 403.

When evaluating misconduct, we consider the district court's findings about the 

interview itself and those findings about the defendant that would have been known to (or 

ascertainable by) law enforcement; only when evaluating voluntariness overall do we 

consider the factors which law enforcement would have had no way of knowing, such as 

a defendant's experience or subjective feelings.

Our task on review is thus akin to solving a jigsaw puzzle: first sorting out the 

district court's relevant findings of fact supported by sufficient evidence and then fitting 

those facts together to assess, as a matter of law, whether the final picture produced by 

those findings reveals police misconduct. If the answer is yes, we then proceed to 
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determining whether the facts demonstrate, as a matter of law, that the misconduct caused

an accused person's will to be overborne, rendering the confession involuntary and 

inadmissible for violating due process.

Substantial competent evidence supports the district court's findings of fact.

On January 27, 2020, the district court held an evidentiary hearing on the motion 

to suppress. At the conclusion of the hearing, the court made the following findings:

• Garrett was brought in for questioning at the Salina Police Department, behind one 

set of locked doors. The interrogation began at around 1:20 p.m.

• Detective Brown, Detective Jones, and other law enforcement were present 

throughout the interview. 

• Garrett was provided with his Miranda warning at the outset. There was some 

minimization of that process by the detective, who referred to the warning as 

"hoops that he needed to jump through" because Garrett was arguably in custody.

• Soon it became apparent to Garrett that the interview was about his inappropriate 

touching and behavior toward L.A.

• The officers were very fair as far as their tone and demeanor, and were not in any 

way coercive in an outright confrontational sense.

• Garrett's mental condition was stressed; however, he was oriented to time, place, 

and circumstance. 

• Garrett was able to communicate with the outside world.

• The duration of the interrogation was short.

• Garrett is fluent in English.

• Garrett is articulate, and of average or above average intellect.

• At the time of the interview, Garrett's age was close to 40.
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• The officer "oversold" the voice stress test. It was presented as 100 percent 

effective repeatedly, in the context of Garrett denying any inappropriate touching. 

The test was presented as a foolproof truth confirmation test. Nothing in the 

literature would indicate that it is 100 percent effective. To assert as much was a 

deceptive practice.

• Sergeant Cox indicated the CVSA was 100 percent effective for truth confirmation 

and that the test could differentiate between the stress of the event and the stress of 

deception. The literature before the court indicated that was not accurate.

• After being confronted with the result of the CVSA, Garrett changed his answers 

and started disclosing statements that incriminated him.

• Garrett was not threatened.

• No promises were made to Garrett concerning action that would be taken by a 

public official in reference to a deal or some favorable treatment.

On July 30, 2021, the district court held a hearing on its own motion to reconsider 

the motion to suppress. No additional evidence was presented. The court stated it did not 

intend to repeat every finding previously made, and incorporated its findings from 

January 27, 2020, but also supplemented those with additional findings. The additional 

findings were to replace any contrary findings from the earlier hearing. The supplemental 

findings were as follows:

• Garrett's interview was several hours in length, including a significant period the 

defendant spent alone or isolated.

• The interview was conducted by three different officers at varying points.

• Garrett was in his early 30s at the time and informed officers that he had not eaten 

or slept and that he was upset. At the time, Garrett worked at Dillons as a backup 

meat cutter and manager.

• The questioning before the CVSA was nonconfrontational and less direct.
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• Detectives told Garrett that nervousness was not part of the equation, that they 

thought it was "'a fantastic tool, an excellent tool[,]'" or words to that effect. 

• Sergeant Cox then arrived and explained the CVSA, and stated the CVSA is 100 

percent effective, despite Garrett's stress.

• Detectives asked Garrett if he would agree to take the test, and Garrett acquiesced.

• The CVSA exam occurred in a separate room with Garrett and Cox present. Cox 

informed Garrett the exam would be recorded and he could stop it at any time.

• Garrett was trying to read a form Cox gave him and he could not make out the 

word "coercion." Cox pronounced it for him and then he understood it.

• Cox again administered the Miranda warnings to Garrett. Garrett was again told 

he could stop the exam at any time.

• Cox explained they formerly used a polygraph exam but now use the CVSA. Cox 

said the CVSA is used throughout the United States, and even the military uses it. 

She explained it is a truth verification exam and it is 100 percent effective. Cox 

said by the time they were done they would know what happened and what the 

truth was.

• Cox told Garrett she wanted him to pass the test and remember to be completely 

honest. Before administering the CVSA, she reviewed with Garrett the specific 

allegations of how the defendant touched L.A. Garrett denied the allegations.

• Cox then administered the CVSA.

• After the CVSA, law enforcement was not persuaded by Garrett's continued 

denials and told him they believed he touched L.A. as alleged.

• Garrett was twice given Miranda warnings before testing and did not assert he 

wanted counsel or wished to remain silent.

• Law enforcement's use of the "Reid Technique" to minimize and obstruct claims 

of innocence were egregious.
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We conclude the district court's findings of fact are supported by substantial 

competent evidence. (While there is some discrepancy in whether Garrett was "in his 

early thirties" or "closer to forty[,]" both findings describe Garrett as a mature adult.)

The detectives did not overreach.

Having found that the district court's findings were supported by substantial 

competent evidence, we next turn to its legal conclusions: that under the totality of the 

circumstances there was overreaching law enforcement misconduct that caused Garrett's 

will to be overborne, such that his confession was involuntary. We review these aspects

of the district court's decision de novo. In doing so, we note the district court, the Court 

of Appeals, and the parties did not have the benefit of our decision in G.O. clarifying 

several of the legal principles relevant to the proper legal analysis in this case. 

Before the district court, Garrett focused on the officers' fairness in conducting 

the interrogation. He argued the officers unfairly coerced him into confessing by 

downplaying the significance of the interrogation and the Miranda warnings, 

misrepresenting the accuracy and admissibility of the CVSA exam, encouraging him to 

confess so the prosecutor would look favorably upon him, and utilizing an interrogation 

tactic called the Reid Technique by minimizing the serious nature of the crime and 

offering innocent explanations after asserting that the CVSA proved guilt.

After discussing the officers' unfairness in more detail at the second hearing, the 

district court explained its new ruling: 

"The Court has reconsidered the totality of the circumstances. Clearly, the 

defendant was under stress. He reported not sleeping or eating. He had difficulty reading 

the word 'coercion,' had to be explained to him. Law enforcement minimized the need for 

Miranda. Delayed telling him the specific nature of the allegations. And what troubles 
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the Court most significantly is law enforcement deliberately misled the defendant 

regarding the effectiveness of the CVSA. As I mentioned previously, they oversold it as 

100% effective and a way for the defendant to move past this.

"The Court understands that law enforcement are allowed to use misleading 

tactics at times during an investigation; however, the overselling and application of the 

CVSA process and the post CVSA interview tactics are a bridge too far in these 

circumstances.

. . . . 

"Considering the totality of all the circumstances, including the pre-CVSA tactics 

and approach, the process used during the CVSA and the post-CVSA tactics and 

approach, the Court finds the defendant's statements after the CVSA were not voluntary, 

they were not the product of his free and voluntary will, and the Court is suppressing 

those statements."

The Court of Appeals rejected what it perceived as the district court's "hard stop 

against deceptive interview techniques in general." Garrett, 2022 WL 12129643, at *5. It 

then appeared to disagree with the district court's finding that Garrett was stressed and

tired and had not eaten: "As the testing period neared, Garrett repeatedly made his 

current level of anxiety known, explaining that he was 'hyped up' and felt nervous and 

stressed arguably in a thinly veiled attempt to offer an innocent explanation for any stress 

registered by the test." 2022 WL 12129643, at *5. The majority described Garrett's 

mental condition as "stable." 2022 WL 12129643, at *6.

The panel concluded:

"In our view, the district court entered its second ruling almost entirely as a 

product of its discontent with the CVSA and its attendant discussions, rather than 

adhering to its obligation to conduct a full and fair assessment based on the totality of the 

circumstances. Shining a light on those factors reveals that Garrett's mental condition was 
15

stable and he was not subject to undue duress. While he admitted to experiencing stress, 

the evidence reflects that anxiety started to simmer the night before his interview after 

reviewing a text on his wife's phone from L.A.'s father about this matter. The manner and 

duration of Garrett's interview was also nonremarkable. The evidence reflects it started at 

roughly 1:30 in the afternoon and lasted only about 2 hours, which we find to be a 

reasonable length of time. While the record is absent any facts addressing whether Garrett 

sought to communicate with the outside world at the time, there is no evidence 

suggesting such a request was made and denied. Finally, turning to Garrett's age, 

intellect, and background. The evidence adduced demonstrated that Garrett was about 40 

years old, married with a family, and worked in two capacities at a local store with one of 

those roles carrying managerial responsibilities. Accordingly, there is no evidence 

tending to show Garrett lacked the intellectual capabilities to appreciate his 

circumstances or what was being asked of him.

"The undue weight the district court afforded the deceptive techniques, to the 

exclusion of nearly all other relevant components of the inquiry, gave rise to a finding of 

involuntariness that is neither grounded in substantial competent evidence nor consistent 

with the longstanding law in this area. Accordingly, that decision cannot be permitted to 

stand. The district court's conclusion that Garrett's statements were involuntary and its 

suppression of the same is reversed." Garrett, 2022 WL 12129643, at *6.

Garrett argues the panel erred by reweighing the evidence and considering the 

legal effect of the relevant factors in isolation, rather than assessing the cumulative effect 

of all the relevant factors. As to the evidence considered by this court, we look to the 

findings as made by the district court. And we consider those findings both specifically 

and then as part of the overall circumstances to determine whether the law enforcement 

tactics constituted overreaching misconduct.

We believe the dissents' criticism that this review constitutes a "divide and 

conquer" approach is misplaced. Slip op. at 30. Consideration of the cumulative effect of 

the totality of the circumstances does not require that we neglect to examine each 
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circumstance. Rather, a close examination of the circumstances provides greater 

understanding of their total effect.

When considering all the circumstances related to both (a) law enforcement tactics 

and (b) what law enforcement knew about Garrett, we conclude that, as a matter of law,

the police did not overreach. True, they exaggerated the CVSA's ability to detect 

truthfulness, which the district court found deceptive. And the district court found it 

"egregious" that law enforcement minimized and suggested justifications for Garrett's

actions, using the Reid Technique.

Even so, law enforcement also understood Garrett was a grown man of apparently 

average intelligence who was fluent in English. The duration of the interrogation was not 

prolonged; there was no evidence Garrett was denied any request to communicate with 

the outside world. Garrett highlights his stress and tiredness, but he cites no caselaw 

indicating that either necessarily results in involuntary confessions. Appropriate law 

enforcement interrogation has never required a stress-free environment. Difficult 

allegations require difficult questions that cause stress. As we have previously explained, 

"A statement is not involuntary simply because a defendant was tired . . . the condition 

must have made the defendant seem confused, unable to understand, unable to remember 

what had occurred, or otherwise unable to knowingly and voluntarily waive the right to 

remain silent." State v. Galloway, 311 Kan. 238, 246, 459 P.3d 195 (2020). The district 

court made no such findings here, regardless of its observation that Garrett reported not 

eating or sleeping and was, understandably, under "stress."

Further, Garrett argues Detective Brown's statement that he wanted to tell the 

prosecutor that Garrett had cooperated also amplified the coercive nature of the 

interrogation. Admittedly, a promise of leniency can render a confession involuntary if it 

"concern[s] action to be taken by a public official[,] . . . would likely cause the accused to 

make a false statement to obtain the benefit of the promise[,]" and was made "by a person 
17

whom the accused reasonably believed had the power or authority to execute it." State v. 

Garcia, 297 Kan. 182, 196, 301 P.3d 658 (2013). But an officer's statement that they

would like to tell a prosecutor that a defendant cooperated is not a promise of leniency. 

State v. Johnson, 253 Kan. 75, 82, 84, 853 P.2d 34 (1993). Nor have we held such a 

statement to be coercive. See State v. Harris, 284 Kan. 560, 581, 162 P.3d 28 (2007) 

(resulting confession voluntary even though officer told defendant full cooperation would 

be viewed favorably); State v. Tillery, 227 Kan. 342, 344, 606 P.2d 1031 (1980) 

(confession voluntary when officers told defendant things would "go better" if they told 

the truth); State v. Harwick, 220 Kan. 572, 575, 552 P.2d 987 (1976) (confession

voluntary even though officer told defendant that district attorney might be lenient). The 

officers' statements here were no different than those previously considered to be 

noncoercive. They did not promise leniency and thus were not improper.

Next, Garrett argues that the minimization of his Miranda rights at the outset of 

the interview contributed to the coercive environment. We agree that, at least in some 

circumstances, an officer's attempt at minimizing a defendant's rights can contribute to a 

coercive atmosphere that may lead to an involuntary statement. See, e.g., G.O., 318 Kan. 

at 407-09; Doody v. Ryan, 649 F.3d 986, 1002-06 (9th Cir. 2011); Ross v. State, 45 So. 

3d 403, 434-35 (Fla. 2010), as revised on denial of reh'g (2010). But that did not happen 

here. Garrett was advised of his constitutional rights not once, but twice, before he made 

incriminating statements. While the reasons and importance of the first Miranda advisory 

were minimized, the second advisory repeated the ones already given and Garrett 

acknowledged each one. These rights included his right to stop the interview at any time 

(remain silent) and demand the assistance of counsel. This clearer and more forceful 

recitation of Garrett's rights alleviated any coercive effect that the initial reading caused. 

Garrett also asserts the officers' deceptive exaggeration of the reliability of the 

CVSA to identify the "truth" was coercive. He insists this case is like State v. Stone, 291 

Kan. 13, 29, 237 P.3d 1229 (2010). Despite certain similarities, Stone is distinguishable. 
18

In Stone, the detectives falsely told the defendant they had found semen on the victim's 

pajama top and were sure it would match the defendant's DNA. They were also 

aggressive in their interrogation and implied the only thing that would keep the defendant 

out of jail or affect the length of the sentence was a confession. In addition, the defendant 

had a sore throat, an ankle injury, was suffering from exhaustion, and became confused to 

the point of offering garbled and disorganized responses throughout the interview and 

merely adopted the interrogator's suggested version of events. 291 Kan. at 22-23. In 

contrast, here the district court made no finding that officers were aggressive or indicated 

Garrett's confession would keep him out of jail or affect the length of his sentence, or that 

Garrett's mental state prohibited him from thinking clearly. 

Sometimes deceptive practices by law enforcement constitute misconduct, but not 

always. The difference is a matter of degree, gauged by what the officers knew or could 

have ascertained about the defendant; a lie told to a child, after all, will have a far greater 

impact than a falsehood given to an adult. Here, nothing about Garrett himself or the 

other surrounding circumstances of the interrogation could have exacerbated the effect of 

the deception. While our threshold assessment of misconduct differs from the ultimate 

question of voluntariness, we note that many cases have found a voluntary confession 

even when presented with law enforcement's deceptive tactics. See Frazier v. Cupp, 394 

U.S. 731, 737, 739, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969) (statements voluntary even 

though officer falsely told defendant codefendant had confessed to his and the 

defendant's guilt); State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005) (deceptive 

interrogation techniques alone do not establish coercion); State v. Swanigan, 279 Kan. 18, 

32, 106 P.3d 39 (2005) (police free to lie about evidence that fingerprints were found and 

confirmed to be Swanigan's, but false information must be viewed as a circumstance in 

conjunction with others, e.g., additional police interrogation tactics); State v. Wakefield, 

267 Kan. 116, 127-28, 977 P.2d 941 (1999) (questioning officer's false statement to 

defendant, when viewed as part of the totality of the circumstances, was insufficient to 

make the otherwise voluntary confession inadmissible). 
19

The alleged deception here stems from the disparity between what officers 

represented the CVSA's accuracy to be—100 percent—and what a witness reported the 

scientific literature said: 15-50 percent accuracy. But we disagree with Justice Wall's

dissent's claim that "[a]ll the while, police knew the testing was junk science, the results 

could not be used in court." Slip op. at 31. We simply do not know they knew that. No 

evidence supports the conclusion that the police in this case knew the CVSA test—a real 

test used by other law enforcement agencies—to be "junk science." Slip op. at 31. Nor do 

we know from the evidence that CVSA results could never be admissible in court for any 

reason. To the extent the discrepancy in the CVSA's real versus represented accuracy was

deceptive, as the district court found it to be, we cannot conclude that it constituted 

misconduct as a matter of law. As Judge Hurst aptly summarized:

"[T]he deception here was not pervasive—while the interviewers extolled the accuracy of 

the CVSA exam, they did not heavily or repeatedly rely on its results. While the 

interviewers led Garrett to believe that some of his answers demonstrated stress, they did 

not say that the exam proved he lied or proved his guilt, and they did not belabor the 

exam results. They asked Garrett about the results just once or twice before changing 

tactics. Additionally, the interviewers did not lie about the existence of physical evidence, 

witnesses, or surveillance footage." 2022 WL 12129643 at *10 (Hurst, J., concurring). 

The district court also criticized law enforcement's use of the Reid Technique as 

"egregious," so some explanation of the Reid Technique is needed. While the district 

court's use of the word "egregious" creates a negative connotation of these techniques, 

that conclusive connotation is not universally held. One secondary source more favorable 

to this law enforcement tactic describes it as follows:

"By virtue of its name, the Reid Technique of Interview and Interrogation may 

lend itself to the generalization that it teaches interrogators how to become better at 

eliciting confessions from suspects but no more than that. Moreover, critics . . . broadly 

assert that the technique is so powerful that interrogators use it to coerce suspects to 
20

confess to crimes they haven't committed, yet so flawed that interrogators are unable to 

tell the difference between someone who is telling the truth and someone who is not. 

Reid's 'three-part process for solving crime,' however, is much more comprehensive than 

such generalizations would suggest.

"While behavior analysis and interrogation skills are the primary benefits derived 

from the textbook and seminars, the technique's overall structure has a system of checks 

and balances. To review, first there is 'factual analysis.' Prior to interviewing a suspect, 

interrogators are instructed to gather as much independent evidence as possible from the 

most reliable sources. Second is the 'behavior analysis' interview, in which investigators 

look for symptoms of deception, but under the admonition not to put too much weight in 

any one indicator. Finally, there is the 'nine-step interrogation method,' which is set up in 

a manner so that innocent people are likely to forcefully deny guilt as early as steps one, 

two, and three.

"By the time the interrogator reaches what is likely the most suggestive part of 

the interrogation, innocent suspects will have given many indications of truthfulness, 

thereby eliminating the need to move into this area. In such cases, Reid advises the 

interrogator to consider the process of 'stepping down.' Stepping down involves softening 

the intensity of the interview or terminating it completely. Which way to proceed here 

depends on whether the interrogator believes the person has some knowledge of the 

crime (as an accomplice, witness, etc.), or is completely uninvolved.

"Whether or not a confession is voluntary depends on an overall inquiry into the 

suspect's susceptibility to coercion as well as whether or not the police acted in a manner 

likely to overbear the suspects' desire not to speak." Goodman, Getting to the Truth: 

Analysis and Argument in Support of the Reid Technique of Interview and Interrogation, 

21 Me. B.J. 20, 24-25 (2006). 

Garrett submitted no evidence criticizing law enforcement's use of the Reid 

Technique as used here and cites no law prohibiting these techniques. Indeed, this court 

noted in Khalil-Alsalaami v. State, 313 Kan. 472, 507, 486 P.3d 1216 (2021), that "no 
21

Kansas appellate decision had found" "'minimization'" techniques in interrogation "alone 

sufficient to render a defendant's confession involuntary."

But we pause to caution that the point is not whether a confession is truthful or 

false. The point is the process due the accused, regardless of the truth of the confession. 

As one federal district judge recently opined:

"While [Defendant] Monroe [criticizes] the Reid Technique . . ., there is nothing 

impermissible as a matter of law with this interrogation approach; it falls within the range 

of acceptable interrogation tactics sanctioned by the First Circuit. Monroe offers no 

authority, and the Court could not find any, for the contention that an agent's 

minimization of crimes, under these facts, renders a suspect's statements involuntary. 

Thus, Monroe's argument that the Reid Technique violated his Due Process rights must

fail.

"The problem with this result, of course, is that it implicitly condones police 

interrogation tactics, such as lie detector tricks and the minimization and maximization of 

crimes, which, again, can lead to—or are at least present in—false confessions. Thus, the 

use of the Reid Technique on most competent adults is lawful until and unless it fails, and 

proving its failure is a herculean task to be sure. Generally, it would require overcoming a 

finding of guilt on a post-conviction claim of actual innocence. The solution to this 

problem is not to ban the Reid Technique by holding, as Defendant would have it, that its 

use constitutes a per se Fifth Amendment violation. But, at the same time, law 

enforcement agents need to consider carefully whether their tactics are appropriate in any 

given situation, and they should be fully trained, using real science (not company 

promotional propaganda), on the efficacy and frailties of various interrogation 

techniques.

"Indeed, all agents in the criminal justice system—prosecutors, defense 

attorneys, and judges—want a system that does not wrongfully convict innocent people. 

If law enforcement agents are led to believe incorrectly that the Reid Technique 

possesses a kind of special power to root out the truth—as the company's marketing 

material implies—they will be misled in certain cases, resulting in false confessions and 
22

wrongful convictions. It is also particularly important to recognize the risk of false 

confessions in vulnerable populations." United States v. Monroe, 264 F. Supp. 3d 376, 

392-94 (D.R.I. 2017), aff'd No. 19-1869, 2021 WL 8567708 (1st Cir. 2021) (unpublished 

opinion).

Here, law enforcement used both the Reid Technique and deception. We have 

previously held that neither is prohibited standing alone. Here, they did not stand alone, 

and our precedent requires that we consider their cumulative effect. Stone, 291 Kan. at 

25. Even so, considering these and other tactics used by law enforcement, along with the 

factors relevant to Garrett as known by law enforcement, under the totality of the 

circumstances we conclude that law enforcement's actions did not go so far as to 

constitute misconduct in violation of due process. Since the tactics here were not 

misconduct, Garrett's resulting confession is not rendered inadmissible because of those 

tactics.

We affirm the Court of Appeals' reversal of the district court's suppression of 

Garrett's confession, albeit on different grounds. We remand the matter to the district 

court for further proceedings.

Judgment of the Court of Appeals reversing the district court is affirmed. 

Judgment of the district court is reversed and remanded. 

* * *

ROSEN, J., dissenting: Today the majority sanctions law enforcement interrogation 

tactics that the district court described as "akin to a psychological rubber hose." While the 

majority may be unbothered, I believe that the deceptive tactics here went too far and 

functioned to defeat Garrett's free will. I would affirm the district court's suppression of 

Garrett's statements for the reasons I set out below. And I also join Justice Wall's dissent.
23

True to the majority's observation, the United States Supreme Court and this court 

have held that deceptive interrogation practices do not constitute a per se constitutional 

violation. But in each of those cases, the officers misrepresented existing physical 

evidence or witness' version of events. Frazier v. Cupp, 394 U.S. 731, 737, 739, 89 S. Ct. 

1420, 22 L. Ed. 2d 684 (1969) (officer falsely told defendant codefendant implicated him 

in crime); State v. Harris, 279 Kan. 163, 170, 105 P.3d 1258 (2005) (officers lied about 

physical evidence and eyewitnesses); State v. Wakefield, 267 Kan. 116, 126, 977 P.2d 

941 (1999) (officers lied about existence of incriminating fingerprints and witnesses).

In contrast, the officers in this case did not misrepresent the existence of physical 

evidence or witness observations or their cooperation with law enforcement. Their 

coercion was multi-leveled consisting of numerous acts of deception. The officers began

the interrogation by minimizing the importance of the Miranda advisement, explaining 

they merely had to "jump through some hoops" before they began the interrogation—

those "hoops" being Garrett's constitutional right to remain silent.

Before the officers relied on the results of the CVSA to wrench a confession out of 

Garrett, they had to coerce him into taking the exam. To do this, they told Garrett that the 

CVSA was a reliable tool used by the military that was 100% accurate and would verify 

that he was telling the truth when he denied the allegations against him. The implication 

is clear: if Garrett refused to take the CVSA and verify the truth of his statements, he 

was obviously lying about his innocence. In constitutional terms, Garrett's exercise of his 

right to remain silent would establish his guilt. This directly contradicts Fifth Amendment 

jurisprudence, which has long provided that a defendant's custodial silence is "insolubly 

ambiguous" and shall "carry no penalty." Doyle v. Ohio, 426 U.S. 610, 618, 96 S. Ct. 

2240, 49 L. Ed. 2d 91 (1976). The officers also implied that his agreement to take the test 

would be communicated to the prosecutor as "cooperation." Garrett thus faced a reality in 

which his silence proved guilt—regardless of whether he was guilty—and an agreement 
24

to take the CVSA might earn him better treatment from the prosecutor. Standing alone, 

this is highly coercive. 

But the officers' coercion continued. After the exam's conclusion, the officers 

revealed to Garrett that he had failed the test. From Garrett's point of view, a scientific 

test he (and nearly everyone) has never heard of that law enforcement insists is 100% 

accurate had absolutely proved his guilt. Guilty or not, his only realistic option was to 

take the officers up on their offer to tell the prosecutor Garrett had been cooperative. 

Again, I agree with the district court's assessment of this situation as akin to a 

"psychological rubber hose." 

Other courts have viewed deception regarding the results of lie detector tests to be 

highly coercive. In State v. Matsumoto, 145 Haw. 313, 327, 452 P.3d 310 (2019), results 

from the defendant's polygraph were inconclusive, but officers told the defendant he 

failed. The defendant confessed and the Supreme Court of Hawaii suppressed the 

confession. In doing so, the court explained why falsely telling a defendant that a 

scientific test had absolutely shown their guilt was so psychologically impactful:

"The polygraph is a scientific instrument that purports to accurately determine 

whether the subject of the test is telling the truth. . . . An examinee who has not lied does 

not expect to be given falsified polygraph test results from the police. It is thus not 

surprising that the presentation of falsified results may have serious and substantial 

effects on a suspect. '[E]xperiments have shown that . . . counterfeit test results . . . can 

substantially alter subjects' . . . beliefs, perceptions of other people, behaviors toward 

other people, emotional states, . . . self-assessments, [and] memories for observed and 

experienced events.' Saul M. Kassin et. al, Police-Induced Confessions: Risk Factors and 

Recommendations, 34 L. & Hum. Behav. 3, 17 (2010) (citing studies that have tracked 

the effects of counterfeit test results, along with other deceptive tactics) (internal citations 

omitted).
25

"Falsified polygraph results may pressure a suspect into changing the suspect's 

pre-test narrative. This pressure is intensified when an officer expresses confidence that 

the suspect is lying and is aggressive in pushing the suspect to confess on the basis of the 

officer's pre-formed belief of the suspect's guilt. Richard A. Leo & Richard J. Ofshe, The 

Truth About False Confessions and Advocacy Scholarship, 37 Crim. L. Bull. 293, 293-

370 (2001). Falsified polygraph results are geared towards making the suspect believe in 

one's own guilt or believing that the officer will not stop the interrogation until the 

suspect confesses guilt. See Klara Stephens, Misconduct and Bad Practices in False 

Confessions: Interrogations in the Context of Exonerations, 11 Ne. U. L. Rev. 593, 596 

(2019) (finding that false polygraph results are 'bad practices' that produce both true and 

false confessions).

"Once a suspect believes that a confession of guilt is inevitable, the individual is 

cognitively geared to accept, comply with, and even approve of that outcome. Kassin et. 

al., supra, at 17, (citing Elliot Aronson, The Social Animal (1999)) (exploring how

human beings cognitively respond once they view an outcome as inevitable). That is, 

false polygraph results may psychologically prime an innocent suspect to make a 

confession.

. . . . 

"Extensive scientific literature and numerous documented cases have 

demonstrated the coercive nature of falsified polygraph test results; they can change a 

suspect's beliefs, pressure a suspect to confess, and even cause the suspect to believe they 

committed the crime when they did not." Matsumoto, 145 Haw. at 326-27.

There is no allegation that Garrett was given falsified results from the CVSA. But, 

like the defendant in Matsumoto, he was falsely told that a lie detector test absolutely 

proved his guilt. In reality, the exam Garrett took was at best no more reliable than a coin 

flip. 

This coercive effect of the CVSA was amplified by the highly dubious indication 

from the officers that the results could be used against Garrett in court. Before Garrett 
26

began his test, he was given a document that informed him the exam would be recorded 

and could be released for purposes of testimony. I question this representation. Because 

polygraph results have proven to be scientifically unreliable, they are generally 

inadmissible in Kansas unless the parties agree to their admission. Wakefield, 267 Kan. at 

133. I suspect CVSA results would fair similarly. Nonetheless, the form Garrett signed 

indicated his results could be used as testimony. This would have cemented Garrett's 

belief that he had no recourse but to give the officers the confession they wanted. At least 

one other court has held it was coercive for an officer to falsely tell a defendant his 

polygraph results would be admissible in court. See State v. Valero, 153 Idaho 910, 914, 

916, 285 P.3d 1014 (2012) (confession involuntary in part because officers told defendant 

polygraph results were admissible in court, which is legally incorrect). And this court has 

hinted that it would agree. See State v. Sanders, 223 Kan. 273, 277-78, 574 P.2d 559 

(1977) (use of polygraph did not render confession involuntary in part because officers 

did not discuss admissibility of polygraph results with defendant); see also State v. 

Morton, 286 Kan. 632, 652, 186 P.3d 785 (2008) ("While telling a suspect false 

information about the evidence against the suspect, standing alone, does not render a 

confession involuntary, giving the suspect false or misleading information about the law 

is more problematic.").

When the officers did not obtain a confession after convincing Garrett to sit for the 

CVSA and revealing the supposed 100% reliable results, they deployed another deceptive 

tactic. The officers began minimizing the nature of the alleged crimes and offering 

justification for their commission. Standing alone, I agree that this was not enough to 

render a confession involuntary, but it certainly piled on to the already highly coercive 

nature of the interrogation. Our Court of Appeals has described how this tactic can 

influence a person's free will: 

"Although innocent, an individual may attribute the purported evidence against him or 

her to a horrible and likely uncorrectable mistake rather than to the interrogator's 
27

deception. And the interrogator's categorical dismissal of each protest of innocence can 

cement that fear. The individual then considers the minimalized admission of guilt the 

interrogator has offered to be the best way out of an exceptionally bad predicament. See 

Kassin, 34 Law & Hum. Behav. at 14, 16-19; Gohara, A Lie for a Lie: False Confessions 

and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques, 33 

Fordham Urb. L.J. 791, 817-19 (2006); Ofshe & Leo, The Decision to Confess Falsely: 

Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979, 985-86 (1997)." State v. 

Fernandez-Torres, 50 Kan. App. 2d 1069, 1087, 337 P.3d 691 (2014).

Aggravating all this deception was Garrett's emotional state. The district court 

found Garrett had emotional turmoil, intense stress, and had not slept or eaten. It was 

noticeable because it interfered with his understanding of the CVSA consent form—he 

did not know the meaning of at least one term, and he attributed his confusion to his 

emotional and physical state.

The district court here thoroughly considered the interrogation and carefully 

analyzed the voluntariness of Garrett's statements. This is evident in the detailed 

description of the court's findings and legal conclusions and in the court's commendable 

decision to correct its earlier order after giving it more thought. The district court made 

findings supported by substantial competent evidence that: (1) Garrett was emotionally 

confused and volatile, to the extent it interfered with his comprehension of the CVSA 

consent form; (2) officers minimized the importance of his Miranda advisement to induce 

him into the interrogation; (3) multiple officers repeatedly misstated the reliability of 

CVSA testing; (4) the CVSA consent form indicated the test results could be used as 

evidence against Garrett; and (5) post-testing, the officers minimized the nature of the 

alleged crimes, offered justification for their commission, and suggested the prosecutor 

would view Garrett's confession favorably as a form of cooperation. Based on these 

findings and in light of the totality of the circumstances, like the district court, I conclude 

the officers' collective deceptive and coercive practices here fell too far over the line. 
28

The majority acknowledges that the officers' misrepresentation of the accuracy of 

the CVSA was deceptive but concludes it was unproblematic because the officers' 

reliance on the CVSA results was not "'pervasive.'" Slip op. at 19 (quoting State v. 

Garrett, No. 124,329, 2022 WL 12129643, at *10 [unpublished opinion] [Hurst, J., 

concurring]). I do not understand this characterization or the reasoning. The officers 

began discussing the CVSA 30 minutes into the interview and did not abandon the topic 

until they had convinced Garrett to sit through the exam, administered the exam, and 

revealed the results over an hour later. After telling Garrett the exam showed he was 

being dishonest when he denied the allegations, the officers wrested a confession out of 

him in under 10 minutes. So, the officers may have mentioned the exam results only a 

few times after the exam was complete, but that was all it took for officers to get him to 

involuntarily waive his constitutional rights. I cannot see how this means use of the 

results was not pervasive or did not function to overpower Garrett's will. 

I believe that the majority's rubber-stamp of the deception in this case paves the 

way for an onslaught of even more coercive trickery during police interrogations. Hyperrealistic digital impersonation that can be nearly impossible to debunk, or "deep fakes," 

as they have come to be known, are ever present. Chesney & Citron, Deep Fakes: A 

Looming Challenge for Privacy, Democracy, and National Security, 107 Cal. L. Rev. 

1753, 1758 (2019). Advances in technology will continue to make these digital 

impersonations increasingly convincing. 107 Cal. L. Rev. at 1758. I fear it will not be 

long before law enforcement tests the limits of creating fabricated images of a detainee at 

the scene of the crime or artificially create other evidence in order to convince a suspect 

to forego their right to remain silent or cooperate with an investigation. The majority's 

blanket endorsement of deceptive police tactics, even in the face of a new and unfamiliar 

technology like the CVSA, signals this kind of highly concerning deceit is fair game. 

This court has historically permitted the use of deceptive interrogation tactics. But 

I believe we should have drawn a line today and affirmed the district court's judgment to 
29

suppress Garrett's statements. As Justice Wall adeptly points out in his separate dissent, 

when the circumstances are analyzed in their totality, they show Garrett's confession was 

involuntary. Also worth mention, it appears the Court of Appeals believed that Garrett's 

confession was truthful, and this may have influenced their voluntariness analysis. 

Garrett, 2022 WL 12129643, at *5 (opining "given the fact Garrett was able to 

independently provide details of the incidents, he knew participation in the test would 

require him to be dishonest"). To the extent this had any role, it was misguided. While 

coercive interview tactics have certainly resulted in false confessions—which 

demonstrates the psychological power of those tactics—false confessions are not the 

animating concern behind suppressing involuntary statements. Courts guard against 

coercive interrogative pressure to protect the individual's constitutional right to remain 

silent and to due process of law. Guilty or not, our Constitution guarantees every person 

these rights. The United States Supreme Court has emphasized this truth: 

"Our decisions under [the Due Process Clause] have made clear that convictions 

following the admission into evidence of confessions which are involuntary, i.e., the 

product of coercion, either physical or psychological, cannot stand. This is so not because

such confessions are unlikely to be true but because the methods used to extract them 

offend an underlying principle in the enforcement of our criminal law: that ours is an 

accusatorial and not an inquisitorial system—a system in which the State must establish 

guilt by evidence independently and freely secured and may not by coercion prove its 

charge against an accused out of his own mouth." Rogers v. Richmond, 365 U.S. 534, 

540-41, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961).

I would remember this today, and for the reasons stated hold that Garrett's 

confession was involuntary. I would affirm the district court's judgment to suppress his 

statements. 

WALL, J., joins the foregoing dissenting opinion.
30

* * *

WALL, J., dissenting: I join Justice Rosen's dissent in its entirety. I write 

separately to critique the majority's application of the controlling legal standard for 

voluntariness. 

Under that legal standard, Garrett's custodial statements must be suppressed unless 

the State proves by a preponderance of evidence that they were voluntary under the 

totality of the circumstances. State v. Spencer, 317 Kan. 295, 297, 527 P.3d 921 (2023). 

The majority opinion fails to analyze voluntariness under this standard. 

Instead, the majority uses a clever analytical device—divide and conquer. It 

isolates each circumstance that contributed to the environment of coercion. Then, it 

points to caselaw suggesting each circumstance falls short of coercion on its own. State v. 

Garrett, 319 Kan. ___, slip op. at 13-22. The problem with this approach is that the 

Constitution requires us to consider the forest, not each tree. And when we do, the State's 

overreaching is apparent. 

This critique is not groundbreaking. We recognized the illegitimacy of the divideand-conquer approach in State v. Stone, 291 Kan. 13, 237 P.3d 1229 (2010)—cited by the 

majority. There, the district court reviewed each of the three alleged deceptive practices 

in isolation. It then cited caselaw to support its conclusion that each factor, alone, did not 

render the defendant's statements involuntary. 291 Kan. at 23. Stone held the district court 

erred by "failing to look at the circumstances of the interrogation in totality." 291 Kan. at 

29. Even if each circumstance fell short on its own, the coercive environment became 

evident upon "a review of . . . all of these circumstances, as the law requires." 291 Kan. at 

32-33. 
31

Since Stone, Kansas appellate courts have "specifically rejected a divide-andconquer approach to assessing the involuntariness of a confession." State v. FernandezTorres, 50 Kan. App. 2d 1069, 1092, 337 P.3d 691 (2014). Instead, the circumstances 

must be analyzed collectively. 50 Kan. App. 2d at 1092. 

And when the court applies the legal standard correctly, it is often outcome 

determinative. Take State v. Swanigan, 279 Kan. 18, 106 P.3d 39 (2005), for instance. 

There, the defendant argued the totality of the circumstances rendered his statements 

involuntary. Those circumstances included detectives lying about the evidence and 

threatening to tell the prosecutor about the defendant's lack of cooperation. Swanigan

held that "[a]lthough any one of these factors . . . may not be sufficient to show coercion, 

the combination of all of them" does. 279 Kan. at 39; see also Stone, 291 Kan. at 32-33. 

The same holds true here. 

Garrett was sleep-deprived when he was summoned to police headquarters for 

custodial interrogation. From the start, he expressed confusion with the written 

advisement. But police diminished the importance of his constitutional right to silence 

and leaned on him to submit to their truth-verification technology. They repeatedly told 

Garrett this technology discerns truth from falsehood with 100% accuracy. And that the 

reliability of testing is not affected by other variables like intoxication or anxiety. The 

consent form for testing also suggested that the results could be used against him in court. 

All the while, police knew the testing was junk science, the results could not be used in 

court, and that Garrett's Fifth Amendment rights were not "hoops" to jump through. In 

fact, the district court was particularly troubled that "law enforcement deliberately misled 

the defendant regarding the effectiveness of the CVSA." 

This conduct put Garrett in an untenable situation. He could assert his 

constitutional rights or roll the dice and submit to testing. If he chose the former, this 

would have been viewed as an admission of guilt by silence given law enforcement's 
32

misrepresentations about the test's accuracy. So Garrett chose his only path to exoneration 

and submitted to testing. 

Police later told Garrett he had "failed." And based on the misrepresentations in 

the consent form, he had reason to believe that evidence would come in at trial. Even so, 

the police overbore Garrett's will only after they continued to minimize the seriousness of 

the alleged conduct and imply that "cooperation" might encourage the prosecutor to be 

lenient. 

This story is not conveyed through the majority's divide-and-conquer analysis. By 

focusing on parts of the story in isolation, the true nature of overreaching is skewed and 

diminished. And that is problematic here because the totality of the circumstances yields 

coercion greater than the sum of its parts. But the device serves the majority well. How 

else could the story of Garrett's interrogation be characterized as a proper exercise of 

State power in a civilized system of justice? 

ROSEN, J., joins the foregoing dissenting opinion.