1

No. 110,645

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellant,

v.

JOSE FERNANDEZ-TORRES,

Appellee.

SYLLABUS BY THE COURT

1.

To assess the voluntariness of a defendant's statements to government agents, the 

district court considers all of the facts bearing on the interaction leading up to and 

resulting in those communications. The ultimate issue is whether the statements reflect

the product of a free and independent will, i.e., did the individual act voluntarily? The 

district court must examine the totality of the circumstances surrounding the making of 

the statements.

2.

A government agent may induce an involuntary statement through improper 

threats of harm, promises of benefit, a combination of the two, or other undue influence 

over the suspect.

3.

The State must prove the voluntariness of a defendant's statements by a 

preponderance of the evidence.
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4.

A court must determine the voluntariness of a defendant's statement without 

regard to its truth or falsity because the determination implicates due process rights and 

the protection against self-incrimination.

5.

Under K.S.A. 2013 Supp. 60-460(f), an out-of-court statement of the accused 

offered by the government in a criminal prosecution will be treated as inadmissible 

hearsay unless: (1) the statement was knowingly and understandingly made in the 

absence of threats or coercion rendering it involuntary and (2) the statement was made in 

the absence of threats or promises by a public official that would likely induce a false 

admission.

6.

Under the facts of this case, the district court correctly suppressed the defendant's 

statements to law enforcement officers as involuntary when the record showed the 

principal questioner lied about biological evidence implicating the defendant and misled 

the defendant about the legal consequences of admitting to certain inculpatory conduct, 

especially in combination with defendant's low to average intellectual capacity and the 

subpar English-Spanish translation made during the interrogation.

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed September 

26, 2014. Affirmed.

Mark A. Simpson, assistant district attorney, Charles E. Branson, district attorney, and 

Derek Schmidt, attorney general, for appellant.

Branden A. Bell and Sarah G. Hess, of Brown & Ruprecht, PC, of Kansas City, Missouri, 

for appellee.
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Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.

ATCHESON, J.: The State has sought interlocutory review of an order of the 

Douglas County District Court suppressing inculpatory statements Defendant Jose 

Fernandez-Torres made to a police officer questioning him about improper physical 

contact he may have had with his girlfriend's young daughter. The district court found the 

circumstances of the interrogation rendered the statements involuntary, including 

problems with the Spanish-language translation, the officer's false representations about 

evidence supposedly implicating Fernandez, and the officer's poorly translated suggestion 

that some sort of momentary though improper touching of the girl could be dealt with. 

The record evidence supports the district court's factual findings, and we see no error in 

the legal determination to suppress the statements. We, therefore, affirm the district 

court's order.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In September 2010, the Douglas County District Attorney charged Fernandez with 

aggravated indecent liberties with a child for the lewd touching of A.L.G., who was 7 

years old at the time. The offense was then codified in K.S.A. 2010 Supp. 21-3504 and 

carried a life sentence with no parole eligibility for 25 years, as provided in K.S.A. 2010 

Supp. 21-4643(a)(1)(C).

During the investigation of the offense, Fernandez accompanied Lawrence police 

officer Anthony Brixius to the law enforcement center to be questioned about his 

interaction with A.L.G. Brixius had been a police officer for about 7 years and then 

worked as a plainclothes investigator primarily assigned to juvenile sex crimes. 

Fernandez was 23 years old and had moved with his family from Mexico to the United 

States about 8 years earlier. Fernandez attended school in Mexico until he was 14 years 

old. He speaks Spanish and apparently reads with some limitations. He cannot read 
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English but speaks the language conversationally. In 2010, Fernandez worked as a waiter 

at a Mexican restaurant.

At the suppression hearing, Brixius testified that he and Fernandez talked in 

English on the ride to the law enforcement center. Brixius speaks very little Spanish. 

Another police officer accompanied them. No one spoke in Spanish during the brief trip. 

Once at the law enforcement center, Fernandez was placed in an interrogation room. 

Brixius testified that he had concerns about Fernandez' fluency in English and sought out 

a Spanish-speaking translator to participate in the interrogation. Brixius pressed Oscar 

Marino, a bilingual probation officer, into service. Marino was born in Venezuela and 

grew up speaking Spanish; he came to the United States in his teens about 30 years ago 

and has become fluent in English. Marino has no training in real-time translation and has 

never been certified as a Spanish-English translator. At the suppression hearing, Marino 

testified that he has translated for police officers conducting interviews or interrogations 

"[a] handful" of times. The interrogation was videotaped.

Fernandez does not contend he was actually or functionally under arrest or 

physically restrained during the 2-hour interrogation. By all accounts, he voluntarily 

accompanied Brixius to the law enforcement center. Fernandez was not handcuffed 

during the car ride or at the law enforcement center. During the interrogation, Fernandez 

placed and completed a couple of calls on his cell phone.

After getting general background information from Fernandez in English, Brixius 

relied on Marino to translate as he informed Fernandez of his Miranda rights and secured 

a waiver of them. Although the exchange is hardly a model of clarity or sound police 

procedure based on the translation, the district court found a valid Miranda waiver, a 

point Fernandez does not dispute on appeal. The evidence fairly suggests the 

interrogation was not custodial, so an imperfectly rendered waiver would have no 

material legal consequences. See J.D.B. v. North Carolina, 564 U.S. ___, 131 S. Ct. 
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2394, 2401-02, 180 L. Ed. 2d 310 (2011); State v. Warrior, 294 Kan. 484, 496, 277 P.3d 

1111 (2012); State v. Morton, 286 Kan. 632, 646-47, 649, 186 P.3d 785 (2008). But see 

State v. Bridges, 297 Kan. 989, 1010-11, 306 P.3d 244 (2013) (noting a split of case 

authority on whether reading of Miranda warnings amounts to a circumstance leading a 

reasonable person to consider police questioning custodial).

The remainder of the interrogation was conducted with Marino translating except 

for a few, limited exchanges.

At the suppression hearing, the State called Isabel Ferrandis-Edwards, a court 

certified translator, as an expert witness on the quality of Marino's translation during 

Brixius' questioning of Fernandez. Fernandez called Sara Gardner, also a court certified 

translator, for the same purpose. Both experts agreed that Marino sometimes translated 

incompletely or inaccurately the questions Brixius posed and the answers Fernandez 

gave. In a few instances, he asked his own questions of Fernandez.

At the start of the interrogation, Brixius questioned Fernandez generally about his 

relationship with A.L.G., A.L.G.'s mother, and A.L.G.'s younger half-brothers and the 

sort of things he did around the house and with the children. Fernandez is the natural 

father of the boys but not of A.L.G. Brixius then began more pointedly asking Fernandez 

about touching A.L.G.'s pubic area or vagina with his hand. During the bulk of the 

interrogation, Fernandez denied touching A.L.G. inappropriately. Fernandez told Brixius 

that he occasionally checked on the children while they were sleeping. He recalled 

recently pulling the covers back over his son. He then noticed A.L.G. was very close to 

the edge of her bed and seemed on the verge of falling. Fernandez said he grabbed A.L.G. 

and slid her back into bed. He said he could have inadvertently brushed his hand against 

A.L.G.'s pubic area, but he didn't think that happened.
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Later in the interrogation, Brixius falsely told Fernandez that a doctor had found 

Fernandez' skin cells on A.L.G.'s vagina. Brixius then informed Fernandez the medical 

examination of A.L.G. meant he had touched her for a minute or two. Brixius began 

insisting that he knew Fernandez had inappropriately touched A.L.G. But he said he also 

knew Fernandez was not a bad person and "what happened, in part, was a mistake." 

Brixius then told Fernandez that if he had the intention of touching A.L.G. "just for a 

second . . . that's okay and we can deal with that because you didn't do more." In 

translating that statement, Marino used the Spanish word "negociar" for "deal with."

At the suppression hearing, both experts on translation questioned Marino's choice 

in phrasing the Spanish because "negociar" conveys a sense of negotiating or doing 

business. Ferrandis-Edwards, the State's expert, testified that in context, negociar 

"[d]efinitely is not the best choice." Gardner, Fernandez' expert, agreed that "negociar"

commonly referred to business transactions and suggested a negotiated exchange. She, 

too, thought it inappropriately used and could convey the idea that Brixius would 

negotiate some arrangement with Fernandez if he admitted touching A.L.G. As we have 

said, the experts also agreed that Marino frequently failed to translate fully or entirely 

accurately questions and answers, inhibiting precise communication between Brixius and 

Fernandez.

Brixius continued to say he knew Fernandez had inappropriately touched A.L.G. 

and simply wanted to know why it happened. Fernandez responded he didn't know why. 

That sort of refrain recurred during the later stages of the interrogation. Several times 

during the interrogation, Brixius assured Fernandez that because he touched A.L.G.'s 

vagina only once he was a good person who had a momentary lapse in judgment rather 

than a child molester. At one point, Brixius suggested that Fernandez had too much to 

drink as a reason. Fernandez replied: "I am confused, because that had never happened 

and I don't know." Still later in the questioning, Brixius told Fernandez that "to touch her 

vagina, you had to have moved your hand there on purpose." But he quickly added, "And 
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it's ok because you didn't keep on touching her." Fernandez answered: "No, and with 

that, how I continued to touch her, that is why I am confused, because that had never 

happened." Brixius, however, continued to disregard those denials. Brixius then asked 

Fernandez when he realized what he had done was wrong. Fernandez said he realized it 

when he brushed his teeth a little while later. Asked again if that was when he realized he 

had done something wrong, Fernandez told Brixius, "Yes, kind of." But still later in the 

interview, Fernandez specifically denied touching A.L.G.'s vagina.

Brixius persisted in assuming Fernandez had touched A.L.G.'s pubic area and 

continued to press for an explanation. Toward the end of the interrogation, Brixius asked 

Fernandez, "Why [do] you think . . . you had a lapse in judgment and put your hand on 

her crotch?" Marino translated this question as, "Why do you think you had . . . that 

problem?" Fernandez replied, "I don't know why, because like I told you, maybe it was 

because I had been drinking . . . ." Brixius later asked why, at the start of the questioning, 

Fernandez hadn't admitted to touching A.L.G. Fernandez said he thought "it was an 

accident." Finally, Brixius asked, "But you knew that it had been done on purpose for [a] 

second because you felt bad about it afterwards?" Marino translated the question as: "So 

you think, you know that you did it on purpose[?]" Fernandez answered, "For a second[,] 

yes."

At the end of the interrogation, Brixius arrested Fernandez.[1]

[1]The interrogation lasted about 2 hours and contains considerably more detail 

than we have recounted here. We have relied, in part, on a translation and transcription of 

the interrogation that Ferrandis-Edwards reviewed and edited. The district court admitted 

the document as an exhibit at the suppression hearing. The 64-page document includes 

the translations Marino made during the interrogation and what Ferrandis-Edwards 

considered to be appropriate translations of what was actually said. Unless we have 

indicated otherwise, we have quoted the English translations of what Marino said to 

Fernandez in Spanish and the English translations Marino attributed to Fernandez.
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At the suppression hearing, Brixius, Marino, and the expert translators testified. 

Fernandez did not. The district court also considered the testimony and report of Dr. 

Robert Barnett, a clinical psychologist, originally admitted during an earlier hearing in 

the case on a different issue. Based on a clinical examination, Dr. Barnett testified at the 

earlier hearing that Fernandez had "mild cognitive difficulty" that impaired his ability to 

fully understand and respond to questions during the psychological testing. Dr. Barnett 

also suspected Fernandez had a learning disability. In his report, Dr. Barnett 

characterized Fernandez as "functioning [intellectually] in the low average range." The 

parties do not challenge the district court's consideration of Dr. Barnett's evidence.

After the hearing, the district court issued a detailed memorandum decision 

granting Fernandez' motion and suppressing the statements he made to Brixius during the 

interrogation. The district court found that the full circumstances of the interrogation 

demonstrated that Fernandez' inculpatory statements were not the product of his free and 

independent will. The State has exercised its prerogative under K.S.A. 2013 Supp. 22-

3603 to take an interlocutory appeal from a district court ruling suppressing a defendant's 

statements.

II. ANALYSIS

Standard of Review and Legal Test for Voluntariness

To assess the voluntariness of a defendant's statements to government agents, the 

district court considers all of the facts bearing on the interaction leading up to and 

resulting in those communications. The ultimate issue is whether the statements reflect 

the product of a free and independent will, i.e., did the individual act voluntarily? See 

State v. Gilliland, 294 Kan. 519, Syl. ¶¶ 3, 4, 276 P.3d 165 (2012); State v. Stone, 291 

Kan. 13, 21, 237 P.3d 1229 (2010); State v. Shumway, 30 Kan. App. 2d 836, 841-42, 50 

P.3d 89, rev. denied 274 Kan. 1117 (2002). In short, the district court must examine the 
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totality of the circumstances surrounding the making of the statements. Among the 

factors to be considered in assessing voluntariness are: "(1) the accused's mental 

condition; (2) the duration and manner of the interrogation; (3) the ability of the accused 

on request to communicate with the outside world; (4) the accused's age, intellect, and 

background; (5) the fairness of the officers in conducting the interrogation; and (6) the 

accused's fluency with the English language." Gilliland, 294 Kan. 519, Syl. ¶ 3; see 

Stone, 291 Kan. at 21. A government agent may induce an involuntary statement through

improper threats of harm, promises of benefit, a combination of the two, or other undue 

influence over the suspect. Hutto v. Ross, 429 U.S. 28, 30, 97 S. Ct. 202, 50 L. Ed. 2d 

194 (1976); State v. Brown, 286 Kan. 170, 174, 182 P.3d 1205 (2008). The State must 

prove the voluntariness of the defendant's statements by a preponderance of the evidence. 

State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013).

Voluntariness ultimately must be determined holistically. So a consideration or 

factor favoring the State does not directly negate another one favoring the defendant and 

vice versa—the outcome does not depend on a tally of factors for each side. Each 

relevant factor, likewise, should not be assessed in isolation. The collective effect of the 

circumstances drives the assessment. See Randolph, 297 Kan. at 326; Stone, 291 Kan. at 

25.

An appellate court reviews the district court ruling using the well-known 

bifurcated standard under which factual findings must be supported by substantial 

evidence but the controlling legal conclusion is subject to unlimited review. An appellate 

court may not reweigh the evidence generally or make independent credibility 

determinations. Gilliland, 294 Kan. 519, Syl. ¶ 1; Stone, 291 Kan. at 21.
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The Rights at Stake

A practical vice of an involuntary confession or admission is its inherent 

unreliability. Jackson v. Denno, 378 U.S. 368, 385-86, 84 S. Ct. 1774, 12 L. Ed. 2d 908 

(1964) (noting the "probable unreliability" of involuntary confessions). A statement given 

under physical or mental duress or in exchange for the promise of a substantial benefit 

necessarily comes with a questionable provenance. See Dickerson v. United States, 530 

U.S. 428, 432-33, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). If the statement is a 

criminal defendant's own and the pressure brought to bear by government agents is 

sufficient to show involuntariness, the circumstances contravene the individual's due 

process rights and the protection against self-incrimination guaranteed through the Fifth

and Fourteenth Amendments to the United States Constitution. Kansas v. Ventris, 556 

U.S. 586, 590, 129 S. Ct. 1841, 173 L. Ed. 2d 801 (2009); Dickerson, 530 U.S. at 433; 

State v. Schultz, 289 Kan. 334, 342-43, 212 P.3d 150 (2009). As a remedy, courts prohibit 

the government from using the statement against the defendant in any criminal 

prosecution. Dickerson, 530 U.S. at 433-34; Stone, 291 Kan. at 32-33; Morton, 286 Kan. 

at 649.

Because of those constitutional considerations, a court must determine the 

voluntariness of a defendant's statement without regard to its truth or falsity. Rogers v. 

Richmond, 365 U.S. 534, 543-44, 81 S. Ct. 735, 5 L. Ed. 2d 760 (1961); United States v. 

Preston, 751 F.3d 1008, 1018 (9th Cir. 2014) (en banc); Parker v. Allen, 565 F.3d 1258, 

1280 (11th Cir. 2009). The Framers of the United States Constitution intended due 

process rights and protections against self-incrimination to prohibit inquisitorial judicial 

proceedings in which defendants could be compelled to speak against their own interests. 

Preston, 751 F.3d at 1015. Inquisitions historically relied on physical torture or 

impressed punishment on the accused for refusing to speak—procedures the Framers 

considered fundamentally unfair. See Michigan v. Tucker, 417 U.S. 433, 440, 94 S. Ct. 
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2357, 41 L. Ed. 2d 182 (1974); Malloy v. Hogan, 378 U.S. 1, 7-8, 84 S. Ct. 1489, 12 L. 

Ed. 2d 653 (1964); Rogers, 365 U.S. at 540-41; Preston, 751 F.3d at 1015.

In addition to the constitutional provisions bearing on the use of a defendant's

confession to government agents, the district court relied on the hearsay exception in 

K.S.A. 2013 Supp. 60-460(f) to bar admission of Fernandez' statements. Under the 

statute, an out-of-court statement of the accused offered by the government in a criminal 

prosecution will be treated as inadmissible hearsay unless the circumstances show the 

statement to have been knowingly and understandingly made in the absence of threats or 

coercion that would render it involuntary and in the absence of threats or promises by a 

public official that would likely induce a false admission. K.S.A. 2013 Supp. 60-460(f). 

In most cases, a statement found to be constitutionally involuntary would also be 

excluded under K.S.A. 2013 Supp. 60-460(f). But in at least a couple of respects, K.S.A. 

2013 Supp. 60-460(f) applies more broadly than the constitutional protections. Under 

K.S.A. 2013 Supp. 60-460(f)(2)(B), a court may exclude a statement as hearsay if threats 

or promises from a public official related to the charged offense were "likely to cause the 

accused to make such a statement falsely." The apparent falsity of a statement is a 

relevant consideration favoring statutory exclusion. The district court relied on that 

subsection. In other situations, K.S.A. 2013 Supp. 60-460(f) excludes not only statements 

a criminal defendant has given to government agents but those made to private 

individuals, as well.

Assessing Voluntariness in This Case

In its written decision, the district court carefully addressed each of the six factors 

that have been outlined in the caselaw and looked at the totality of the circumstances, 

particularly as those circumstances bore on the enumerated factors. The district court's 

factual determinations have support in the record evidence. We review those factors in 
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assessing the district court's legal conclusion to suppress the statements Fernandez made 

to Brixius during the interrogation.

The factor bearing on a defendant's mental condition primarily looks at something 

that would impair the individual's ability to understand and respond to a law enforcement 

officer's questions. A diagnosable and uncontrolled mental illness, such as active 

schizophrenia or another condition causing detachment from reality, would fall in that 

category. Less dramatic and more transient circumstances could impact a defendant's 

mental condition—extreme intoxication or fatigue would be examples. Here, the district 

court found no particular indicators that Fernandez' mental condition contaminated the 

interrogation. As the district court pointed out, Fernandez appeared comparatively 

relaxed during the interrogation, and he made no complaints about being tired, 

uncomfortable, or otherwise in distress.

The district court similarly found nothing in the physical attributes of the 

interrogation—the surroundings and its duration—to be coercive. We put to one side 

Brixius' interrogation technique for consideration as part of the fairness of the law 

enforcement officers conducting the questioning, as did the district court. The various 

factors, however, are not wholly exclusive of each other. They tend to overlap, thus 

underscoring the appropriateness of a collective review of those factors and any other 

relevant circumstances.

In this case, as we have noted, Fernandez was neither told he was under arrest nor 

treated as an arrestee during the interrogation, with the exception of the reading of 

Miranda warnings. He was not handcuffed or restrained during the trip to the law 

enforcement center or during the questioning. During the interrogation, neither Brixius 

nor Marino raised his voice to Fernandez or engaged in physically intimidating conduct. 

The questioning was comparatively brief at about 2 hours, especially considering the 

translation of questions and answers necessarily extended the length of the examination. 
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Fernandez did not ask for a break in the interrogation to use the restroom or for some 

other reason. The district court found nothing coercive about those aspects of the 

interrogation.

A closely related factor considers the defendant's perceived ability to communicate 

with the outside world. Interrogation rooms, by design, tend to be cloistered, thereby 

imparting a sense of isolation that itself can be coercive. See Berkemer v. McCarty, 468 

U.S. 420, 437-40, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (recognizing that a public 

traffic stop typically lacks the coercive atmosphere of a station house detention); Smith v. 

Kansas Dept. of Revenue, 291 Kan. 510, 516-18, 242 P.3d 1179 (2010) (citing Berkemer

with favor). Commonly, courts consider whether the individual was free to leave or, more 

precisely, understood that he or she could leave. Schultz, 289 Kan. at 341 (whether 

interrogation custodial); State v. Nguyen, No. 96,430, 2008 WL 360635, at *6 (Kan. 

2008) (unpublished opinion). That didn't come up in this case, since Fernandez didn't ask 

or attempt to leave. But Fernandez made a couple of cell phone calls while he was at the 

law enforcement center. The district court found that tended to dispel any notion that 

Fernandez would have felt cut off or intimidated by the environment.

In weighing Fernandez' age, intellect, and background, the district court relied, in 

part, on the clinical assessment of Dr. Barnett. Dr. Barnett's expert opinion that 

Fernandez functioned intellectually in the "low average" range and likely had some form 

of learning disability was unrebutted. Dr. Barnett also testified Fernandez had difficulty 

readily understanding and responding to questions posed to him. Again, that clinical 

observation went unchallenged in the sense the State offered no countering expert. The 

intellectual limitations Dr. Barnett suggested at least square with Fernandez' abbreviated 

education and his partial literacy, especially in English. The district court found 

Fernandez' intellect played a part in rendering his statements involuntary.
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Although Fernandez did not overtly display difficulty in understanding Brixius' 

examination or give facially unresponsive answers indicating a lack of comprehension, 

the district court had substantial evidence to support that finding of fact. The State 

counters that Brixius could not have deliberately exploited any hidden intellectual 

deficiency Fernandez might have had. But that bears more on officer fairness, not the 

extent to which a defendant's intellectual capacity actually affected the voluntariness of 

any incriminating statements.

The district court was particularly troubled by the last two enumerated factors: the 

fairness of the interrogation and Fernandez' fluency in English. We share that concern. In 

this case, the two factors are closely related, so we discuss them together.

Fluency in English typically comes into play when a suspect is literate in some 

other language but is interrogated in English. See State v. Rodarte, No. 102,132, 2011 

WL 1814709, at *2 (Kan. App. 2011) (unpublished opinion). Illustrating the 

seamlessness of the generically labeled factors, fluency would also be implicated if a 

suspect knew only English but his or her mental incapacity substantially impaired his or 

her ability to communicate. That situation might also bear on mental condition and, 

possibly, intellect. This case presents a variant because Brixius sought out a translator, so 

the interrogation could be conducted in Spanish—Fernandez' primary language, although 

Fernandez understands some spoken English.

To be plain about it, Marino lacked the bilingual capacity and the training to 

function effectively as a translator in an extended interrogation about a sex crime against 

a child. The two experts agreed that Marino mistranslated both questions and answers and 

sometimes substantially paraphrased what was being said. The district court's expressed 

concern about whether Brixius and Fernandez were fully communicating in an effective 

way finds sufficient support in the record evidence.
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The district court was particularly troubled by Marino's use of "negociar" in 

conveying Brixius' assertion that "we can deal with" the situation if Fernandez had 

touched A.L.G. inappropriately for just a second. Both experts considered the translation 

to be misleading and suggestive of an accommodation in which Brixius could handle or 

negotiate any offense if Fernandez admitted to briefly touching A.L.G.'s pubic area or 

vagina. As translated for Fernandez, the statement might be construed as a promise of 

lenient treatment or an outright deal, thereby affecting the truthfulness of any inculpatory 

admissions on the theory a suspect might falsely confess if he or she understood no 

charges or only minor charges would result. See State v. Brown, 285 Kan. 261, 276-77, 

173 P.3d 612 (2007). The State contends the maladroit "negociar" was one word—a 

blip—in an extended interrogation and couldn't have induced Fernandez' admissions.

The emphasis Marino imparted with his use of "negociar" may not have been what 

Brixius specifically wanted or intended. But the deviation was one of degree given 

Brixius' interrogation technique that combined false representations about supposedly 

incriminating evidence with suggestions that inaccurately tended to minimize the legal 

consequences of some unlawful behavior. The result of those techniques over the course 

of the interrogation combined with communications issues resulting from subpar 

translation and Fernandez' limited intellectual capacity caused the district court to find 

the resulting statements to be involuntary and, thus, constitutionally suspect. Fernandez' 

limited fluency in English ties into the fairness of the interrogation. So we turn to that 

factor.

In the face of Fernandez' denials that he inappropriately touched A.L.G. and his 

limited admission that he might have accidently brushed her pubic area in trying to get 

her back into bed, Brixius falsely stated skin cell evidence conclusively proved otherwise. 

There was no such evidence. Brixius, however, insisted the phantom scientific evidence 

meant Fernandez intentionally touched A.L.G.'s vagina. Brixius then repeatedly 

challenged Fernandez to offer some explanation for that conduct. Brixius suggested 
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Fernandez wasn't a bad person and merely had a momentary lapse in judgment, perhaps 

because he was upset or had drunk too much or for some other reason, in contrast to 

being a degenerate regularly preying on children for sexual gratification. Brixius then 

told Fernandez if he had touched A.L.G. for a second, they could "deal with that"—the 

representation that Marino translated to "negociar." Later in the interrogation, Brixius 

again told Fernandez that it was "okay" because he didn't keep on touching A.L.G. Those 

representations falsely minimized the legal consequences of the action—brief, intentional 

physical contact with A.L.G.'s genitals actually would legally support a charge of 

aggravated indecent liberties with a child and a life sentence upon conviction.

Brixius' interrogation approach effectively informed Fernandez both that the 

police had irrefutable scientific evidence that he had touched A.L.G.'s vagina and that if 

he had done so only for a second his actions were "okay" and could be dealt with. The 

underlying message to Fernandez was this: We have overwhelming evidence against 

you, but if you tell us you did it just briefly, nothing much will happen to you. Brixius 

maneuvered Fernandez into a situation in which yielding to the suggestion would seem to 

carry a material benefit, though quite the reverse was true. An unwary or pliable 

subject—Fernandez, based on the district court's findings, fit that bill—could be induced 

to accede to the suggested version of events because it looked to be convenient, 

compliant, and advantageous. In that situation, a suspect may no longer be especially 

concerned about falsity of the statement. The interrogation strategy lures the subject in, 

snares him or her with representations about the strength of the evidence (that may or 

may not have any basis in fact), and then offers what appears to be a way out through 

admissions deliberately and incorrectly cast as significantly less legally and morally 

blameworthy than alternative explanations of the evidence.

Although Marino poorly translated some of the specific questions and answers and 

occasionally injected himself into the exchange between Brixius and Fernandez, his 

actions did not materially blunt the overall interrogation techniques. The key components 
17

of Brixius' effort to enhance the inculpatory evidence and to minimize the consequences 

of an admission to certain conduct came through. Marino actually upped the impact of 

that effort with his maladroit translation suggesting Brixius could work out a deal with 

Fernandez.

In this case, looking at the whole of the circumstances, we conclude, as did the 

district court, that the inculpatory statements Fernandez made to Brixius were sufficiently 

tainted by the interrogation process and Fernandez' vulnerability to be something less 

than freely given. The State has failed to show they were the product of an independent 

will rather than of the false evidence and phony inducement implied by the interrogator. 

A statement rendered under those circumstances must be treated as constitutionally 

infirm and necessarily involuntary. Accordingly, the district court reached the right legal 

conclusion in excluding the interrogation of Fernandez as evidence against him in this 

case. The interrogation violated Fernandez' Fifth and Fourteenth Amendment rights.

We also agree with the district court that Fernandez' statements were inadmissible 

hearsay under K.S.A. 2013 Supp. 60-460(f)(2)(B). Based on the evidence at the 

suppression hearing, the district court could fairly conclude the inculpatory statements 

Fernandez made to Brixius were likely false. The State offered no evidence to the 

contrary at the hearing. The translation using "negociar" supports the district court's 

finding that Fernandez reasonably may have believed Brixius had the authority to act on 

any criminal charges in exchange for an admission of some degree of culpability, the 

other statutory requirement in K.S.A. 2013 Supp. 60-460(f)(2)(B).

Analogous Case Authority—Old and New

The conclusion we reach is consistent with the analysis the Kansas Supreme Court 

applied in Stone to find a confession involuntary. 291 Kan. at 32-33. Although the facts 

in Stone and here differ in some respects, as they commonly do across cases, the court 
18

emphasized the importance of assessing all aspects of a police interrogation collectively 

in making a voluntariness determination. 291 Kan. at 29. Both cases involved the 

investigation and prosecution of sex offenses against young children. In that case, as here, 

the detective conducting the interrogation lied about having biological evidence 

establishing that Stone committed the offense. The detective questioning Stone combined 

those representations with a "tactic . . . minimizing the seriousness of the accusations" 

and suggesting that "only confessing could keep him out of jail or affect the length of his 

[sentence]." 291 Kan. at 29-30. The court concluded the overall impact of that method of 

interrogation "made the circumstances unduly coercive." 291 Kan. at 29.

In each case, the interrogation lasted roughly 2 hours. At the beginning of the 

interrogation, Stone told the detective he was quite tired and had a sore throat. During the 

questioning, Stone repeatedly mentioned being tired, something the court considered 

significant. 291 Kan. at 32. Here, although Fernandez appeared rested, the language 

barrier and his intellectual capacity affected the interrogation.

The court pointed out that Stone consistently denied any wrongdoing during the 

bulk of the interrogation and then eventually admitted to the minimized version of the 

offense the detective suggested. 291 Kan. at 29. The interrogation of Fernandez followed 

a similar pattern. Fernandez repeatedly said he did not touch A.L.G.'s vagina or otherwise 

act inappropriately. Confronted with Brixius' false representation that physical evidence 

disproved his denial and Brixius' suggestion that touching A.L.G. for only a second 

would be okay or could be dealt with, Fernandez admitted to that scenario. The analysis 

in Stone supports suppression in this case.

The State contends Fernandez confessed to intentionally touching A.L.G.'s pubic 

area even before Brixius brought up the fictional skin cell evidence, so the interrogation 

techniques didn't make any difference. But the State mischaracterizes what Fernandez 

told Brixius. As we have outlined, Fernandez denied he inappropriately touched A.L.G. 
19

He conceded the hypothetical possibility he might have accidently brushed against 

A.L.G.'s pubic area. Even after Brixius had referred to the purported skin cell evidence, 

Fernandez continued to deny intentionally touching A.L.G.'s vagina.

Judicial concern about the coercive impact of interrogation techniques of the sort 

used in Stone and here is neither isolated nor new. Nearly 50 years ago, the United States 

Supreme Court warned of the dangers lurking in government agents' use of 

psychologically debilitating interrogation techniques. Miranda v. Arizona, 384 U.S. 436, 

448-49, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Those methods replaced physical 

brutality with a more insidious manipulation designed to extract inculpatory statements 

through mental coercion rather than the threat or infliction of bodily pain. But they may 

be no less repugnant to a suspect's constitutional rights. 384 U.S. at 448 ("'[T]his Court 

has recognized that coercion can be mental as well as physical, and that the blood of the 

accused is not the only hallmark of an unconstitutional inquisition.'") (quoting Blackburn 

v. Alabama, 361 U.S. 199, 206, 80 S. Ct. 274, 4 L. Ed. 2d 242 [1960]).

The Miranda Court went on to describe a relatively new interrogation strategy 

being taught to law enforcement officers that largely parallels how Brixius questioned 

Fernandez. 384 U.S. at 449-50 (outlining technique developed and taught by Fred E. 

Inbau and John E. Reid). The officer first should isolate the suspect in unfamiliar 

surroundings, such as a police interrogation room. Then, the guilt of the suspect "is to be 

posited as a fact." The questioner should solicit reasons why the suspect might have 

committed the offense, such as a bad family life or having drunk too much. The 

technique then instructs the officer "to minimize the moral seriousness of the offense." 

The intended effect of the technique is "to put the subject in a psychological state where 

his story is but an elaboration of what the police purport to know already—that he is 

guilty." To complete the strategy, the questioner must dismiss and discourage any 

contrary explanation, i.e., innocence. 384 U.S. at 450. This technique, often referred to as 

the Reid method, remains widely used. See Preston, 751 F.3d at 1023 n.19; Feld, Behind 
20

Closed Doors: What Really Happens When Cops Question Kids, 23 Cornell J.L. & Pub.

Pol'y 395, 412-13 (Winter 2013) (describing the Reid technique as "the leading training 

program in the United States" and as "underl[ying] most contemporary interrogation 

practice").

Interrogation techniques of that sort may induce individuals to give necessarily 

false confessions to crimes they never committed, especially if they are guileless or 

otherwise particularly susceptible to external influences. Juveniles and the intellectually 

impaired, as groups, are vulnerable, since they tend to be trusting of authority figures and 

lack sophistication and discernment. J.D.B. v. North Carolina, 564 U.S. ___, 131 S. Ct. 

2394, 2403-04, 180 L. Ed. 2d 310 (2011); Preston, 751 F.3d at 1022; see Garrett, The 

Substance of False Confessions, 62 Stan. L. Rev. 1051, 1064 & n.69 (2010); Kassin, et 

al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum.

Behav. 3, 30 (2010). The susceptibility to psychologically manipulative interrogation 

techniques may be more pronounced in individuals unfamiliar with the criminal justice 

process. 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 

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).

In Commonwealth v. DiGiambattista, 442 Mass. 423, 428, 439-40, 813 N.E.2d 

516 (2004), the Massachusetts Supreme Judicial Court held that the combined effects of 

law enforcement officers' false representation that a security video placed DiGiambattista

at the scene of a late night arson and of their suggestions that the offense was 
21

"understandable" and called for counseling rendered his confession involuntary. The 

court recognized either technique standing alone typically would not undermine a 

confession but together they easily could. 442 Mass. at 433, 438-39. Even so, the court 

found the individual tactics troubling. As the court observed: "If a suspect is told that he 

appears on a surveillance tape, or that his fingerprints or DNA have been found, even an 

innocent person would perceive that he or she is in grave danger of wrongful prosecution 

and erroneous conviction." 442 Mass. at 434-35. And "such 'minimization' of the crime 

by an interrogator implies leniency if the suspect will adopt that minimized version of the 

crime, and that leniency can thereby be implicitly offered even if it is not expressly stated 

as a quid pro quo for the confession." 442 Mass. at 436. Although Massachusetts requires 

the State to prove voluntariness beyond a reasonable doubt, a higher standard than in 

Kansas, the corrosive effects of the interrogation techniques are the same. The Utah 

Supreme Court voiced similar concerns about those tactics resulting in overbearing and 

impermissibly coercive police questioning of suspects. State v. Rettenberger, 984 P.2d 

1009, 1015-18 (Utah 1999). In Rettenberger, decided on a preponderance of the evidence 

standard, the court found a confession inadmissible when law enforcement officers used 

those psychological ploys—false claims of incriminating evidence and deliberate

minimalization of the legal consequences of admitting incriminating conduct—with an 

especially vulnerable suspect over an extended time. 984 P.2d at 1021. As reflected in 

Stone, the Kansas courts should similarly assess the overall impact of those techniques in 

light of the suspect's personal characteristics in determining voluntariness.

Earlier this year, two other appellate courts held that inculpatory statements 

vulnerable suspects made to law enforcement officers should have been suppressed 

because interrogation techniques combining false representations about incriminating 

evidence with minimalization of any legal consequences for admitting circumstances 

amounting to criminal offenses rendered them involuntary. United States v. Preston, 751 

F.3d 1008, 1027-28 (9th Cir. 2014) (en banc); People v. Thomas, 22 N.Y.3d 629, 646, 

985 N.Y.S.2d 193, 8 N.E.3d 308 (2014). As with Stone, their reasoning is illustrative of 
22

the potential constitutional perils associated with interrogation techniques comparable to 

those deployed in this case.

In Thomas, the New York Court of Appeals found officers impermissibly induced 

Thomas to implicate himself in the death of his 4-month-old son. During a 9 1/2-hour 

interrogation conducted in two sessions, a detective told Thomas, among other things, 

either he or his wife was responsible for the child's head injuries, so they would have to 

bring her in for questioning if he didn't confess. But the detective also said the injuries 

appeared to be accidental and Thomas could go home after explaining what happened. At 

the end of the first segment of the interrogation, Thomas essentially agreed to take the fall 

for his wife because he believed she had done nothing to harm the child. Thomas 

continued to say he had not hurt the baby either. At that point, Thomas was sufficiently 

distraught that he was involuntarily committed to a psychiatric hospital for observation 

for 15 hours between the sessions.

In the second session, detectives told Thomas they needed to know how he hurt 

his son so physicians could properly treat the baby. The detectives, however, already had 

been informed the child could not recover. After Thomas offered that he had dropped the 

child onto his bed days earlier, the detectives insisted that version didn't match what the 

doctors said happened because the injury required significant force. The detectives told 

Thomas he was lying. And eventually at their insistence, he "demonstrate[d]" how he had 

handled his son by forcibly throwing a clipboard to the floor of the interrogation room—a 

demonstration captured on video. 22 N.Y.3d at 640. Throughout the interrogation, the 

detectives repeatedly assured Thomas that the child's injuries were accidental, suggesting 

the absence of any significant criminal liability.

After pointing out that not all police deception renders a suspect's inculpatory 

statements involuntary and the determination rests on a case-by-case analysis dependent 

on the particular psychological pressures brought to bear during the interrogation and the 
23

suspect's vulnerability, the Court of Appeals found the tactics applied to Thomas to be 

impermissibly overbearing. 22 N.Y.3d at 642. That coercion deprived Thomas of his 

right against self-incrimination. 22 N.Y.3d at 642. The court found the deceptive tactics 

overcame Thomas' free will, rendering the confession constitutionally infirm regardless 

of its truth or falsity. 22 N.Y.3d at 644-45. Moreover, however, the circumstances also 

raised a very real possibility the confession might be false, a statutory ground supporting 

exclusion under New York law similar to K.S.A. 2013 Supp. 60-460(f)(2)(B). 22 N.Y.3d 

at 646.[2]

[2]The court addressed Thomas' confession on appeal from his murder conviction. 

The trial court had ruled the statement admissible. The Court of Appeals reversed the 

conviction based on the erroneous admission of the confession and remanded for a new 

trial. Under New York law, the State had the burden to show beyond a reasonable doubt 

that Thomas' statements to law enforcement officers were voluntary, 22 N.Y.3d at 641, a 

higher standard than Kansas requires. As with the DiGiambattista decision, the differing 

burden does not, however, diminish the reasoning of the New York Court of Appeals in 

finding the confession involuntary because of the interrogation tactics. Thomas was 

acquitted in a retrial in June 2014. At trial, he called medical experts who testified that 

the fatal swelling of his son's brain was the result of infection rather than physical trauma, 

contradicting the State's medical witnesses. See "Scenes of a Crime," MSNBC, June 25, 

2014, www.msnbc.com/documentaries/scenes-crime-subject-adrian-thomas-found-notguilty-retrial (accessed July 27, 2014). (A copy of the MSNBC article has been placed in 

the appellate court file.)

In Preston, the Ninth Circuit emphasized many of the same considerations. The 

court underscored the importance of assessing "'both the characteristics of the accused 

and the details of the interrogation'" in evaluating the totality of the circumstances. 751 

F.3d at 1016 (quoting Dickerson v. United States, 530 U.S. 428, 434, 120 S. Ct. 2326, 

147 L. Ed. 2d 405 [2000]). In that case, two law enforcement agents questioned Preston, 

an 18-year-old, about the alleged sexual molestation of a boy who lived next door to him 

in the Navajo Nation in Arizona. Preston had an IQ of 65 and was considered 

intellectually disabled—something that was obvious to the agents as they interviewed 

him. The questioning was noncustodial and lasted about 40 minutes.
24

The agents employed Reid-style interrogation techniques by refusing to 

acknowledge Preston's denial of wrongdoing, by falsely stating that numerous witnesses 

put him in the company of the boy about the time the alleged assault took place, and by 

suggesting if this happened only once that would show that Preston wasn't a "monster" 

who "'prey[s] on little kids,'" so they "could 'move on.'" They also told Preston they 

would be "'cool'" if he admitted "'something just a little bit happened.'" 751 F.3d at 1013. 

One of the officers later testified that they intended to minimize the consequences of a 

confession. 751 F.3d at 1013.

Preston continued to deny the assault but often answered questions with what the 

court characterized as confused and equivocal responses. The agents then asked Preston a 

series of questions about how or why he assaulted the boy, assuming as a given that the 

assault actually took place. Each question contained two options both of which were 

legally incriminating but one of which was plainly morally more reprehensible. For 

example, they asked: "'[I]s it something . . . where you forced the issue or is it something 

that he wanted?'" In response, Preston always agreed he acted in the less odious way. 751 

F.3d at 1014. Based on the tenor of the interrogation and expert testimony introduced at 

the suppression hearing, the court concluded that because of his limited intellect, Preston 

likely failed to appreciate those questions logically included an implicit third choice—

neither. 751 F.3d at 1024.

More broadly, the court pointed out the potentially deleterious impact of those 

sorts of interrogation techniques, including overstating evidence and subtle or implicit 

promises that a statement to limited or qualified conduct would have only marginal legal 

consequences or none at all. 751 F.3d at 1026-27. The court, in turn, found that Preston's 

pronounced intellectual disability substantially intensified that danger and compelled a 

determination of involuntariness. 751 F.3d at 1027-28.
25

While none of the cases we have discussed dictates the outcome here because each 

of them has particular facts different from what happened between Brixius and Fernandez 

and only Stone is controlling authority, they are all of a type. They show how the 

interrogation techniques Brixius applied to Fernandez have the potential to undermine 

free will through psychological ploys crafted to induce inculpatory statements with what 

amount to undue influences on some suspects in some circumstances.

Final Analysis

Here, the State argues for reversing the district court's ruling by analyzing each 

problematic aspect of the interrogation individually and suggesting none of them caused 

any material prejudice. But the Kansas Supreme Court has specifically rejected a divideand-conquer approach to assessing the involuntariness of a confession. State v. Stone, 291 

Kan. 13, 29, 237 P.3d 1229 (2010). As we have already said, the circumstances 

surrounding a confession must be analyzed collectively. State v. Randolph, 297 Kan. 320, 

329, 334, 301 P.3d 300 (2013) (acknowledging Stone and reviewing totality of 

circumstances bearing on defendant's confession to find it voluntary). So while a specific 

component of an interrogation viewed in isolation might not render a suspect's statements 

involuntary, the overall impact of multiple potentially coercive techniques could. 297 

Kan. at 334. The Stone court made that precise point: Any one of the coercive aspects of 

the interrogation might not have led to the conclusion that Stone's statements were 

involuntary, but a review of all of them collectively required that result. 291 Kan. at 32-

33.

This case fits the Stone model. The interrogation of Fernandez was tainted by 

several significant forms of coercion and overreaching. Any one of them alone might not 

have rendered Fernandez' statements involuntary and inadmissible, as the State argues. 

But that is not the correct way of looking at the issue of voluntariness. When we review 

the overall character of the interrogation, we arrive at the same legal conclusion as the 
26

district court. The manner of the interrogation produced statements from Fernandez that 

owed more to Brixius' false representations of evidence and his concerted efforts to 

minimize the consequences of the admissions he sought than to an exercise of a free, 

uncoerced will. The communication gap resulting from the poor translation and 

Fernandez' below average intellect only enhanced the pernicious effects of those tactics. 

Accordingly, the district court properly granted the motion to suppress on the grounds 

Brixius' interrogation of Fernandez produced involuntary statements inadmissible as 

evidence in this case.

Affirmed.