This memorandum opinion was not selected for publi cation in the New Mexico Reports. Please see 1 Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please 2 also note that this electronic memorandum opinion may contain computer-generated errors or other 3 deviations from the official paper version file d by the Court of Appeals and does not include the 4 filing date. 5 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 6 7 STATE OF NEW MEXICO, 8 Plaintiff-Appellant, 9

v. NO. 30,531 10 BRYAN ROTH, 11 Defendant-Appellee. 12

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 13 Charles W. Brown, District Judge 14
Gary K. King, Attorney General 15 Santa Fe, NM 16 Ralph E. Trujillo, Assistant Attorney General 17 Albuquerque, NM 18 for Appellant 19 Jacqueline L. Cooper, Acti ng Chief Public Defender 20 Jeffrey J. Buckels 21 Capital Crimes Division 22 Albuquerque, NM 23 for Appellee 242 MEMORANDUM OPINION 1 KENNEDY, Judge. 2 The State appeals from the district c ourt’s order granting Defendant Bryan 3 Roth’s motion to suppress statements madeto police during a custodial interrogation. 4 The district court ruled that Defendant wa s deceived as to the subject matter of the 5 police interview and, therefore, he did not make a knowing, intelligent, and voluntary 6 waiver of his constitutional right against sel f-incrimination. Because the district court 7 failed to apply the totality-of-the-circumstan ces test to the facts of this case, we 8

reverse. 9 I. FACTUAL AND PROCEDURAL BACKGROUND 10 In this case, the facts are undi sputed. It is the application of the law to the facts 11 that is at issue. On April 30, 2009, Defendant’s mother filed a police report against 12 him for stealing her debit card and several items of jewelry, including several 13 necklaces, a diamond wedding ring, and a dinner ring. At the time of the thefts, 14 Defendant was on probation for attempted aggravated assault against his mother. On 15 May 1, 2009, after learning about the po lice report, Defendant’s probation officer 16 called him into his office. Defendant was given and failed a drug test and then 17 admitted to stealing his mother’s debit card. Defendant was jailed for violating 18 probation from that date until September 24, 2009. Subsequently, Defendant’s mother 193 disappeared on or about May 3 or 4, 2009. It was later discovered that she had been 1 murdered. Defendant’s wife, Cathleen Roth, and several accomplices have been 2 charged with killing Defendant’s moth er and disposing of her body. 3 After Defendant was released from jail on September 24, 2009, he was arrested 4 on an outstanding felony warrant for the thef t of his mother’s debit card and jewelry. 5 He was brought to the police station in handcuffs. Defendant was seated at a 6 conference room table without handcuffs wh ile two detectives asked him questions. 7 Prior to the questioning, one of the detectiv es stated to Defendant: “[W]e’re here in 8 reference to the disappearance of your mother. . . . I’m going to advise you of your 9 [Miranda ] rights . . . [j]ust to . . . protect you. I know that you were in prison during 10 that or in jail.” Defendant clarified that he had been in jail wh ich “is a lot better than 11 prison.” The detective th en read Defendant his Miranda rights. Defendant was not 12 asked expressly if he waived his Miranda rights, and he was not asked to sign a 13 waiver of rights form. After stating that he understood the Miranda rights, Defendant 14 began answering the detective’s questions . The interview began at approximately 15 11:24 p.m. and lasted sixteen minutes. 16 On October 9, 2009, Defendant was charge d with several crimes relating to the 17 theft of his mother’s jewelry and also th e theft and unauthorized use of his mother’s 18 debit card, as well as conspiracy to commit these crimes. Defendant filed a motion 194 to suppress his statements from September 24, 2009. Following a hearing, the district 1 court granted Defendant’s motion. The Stat e’s motion to reconsider was denied. The 2 State’s appeal followed. 3 II. DISCUSSION 4 A. Standard of Review 5 A ruling on a motion to suppress evidence presents a mixed question of law and 6 fact. State v. Garcia , 2005-NMSC-017, ¶ 27, 138 N.M. 1, 116 P.3d 72. The appellate 7 court “view[s] the facts in the light most favorable to the preva iling party[] and . . . 8 review[s] de novo whether the district court correctly applied the law to the facts.” 9 State v. Slayton , 2009-NMSC-054, ¶ 11, 147 N.M. 340, 223 P.3d 337. “‘The ultimate 10 determination of whether a valid waiver of [ Miranda ] rights has occurred, however, 11 is a question of law whic h we review de novo.’” State v. Gutierrez , 2011-NMSC-024, 12 ¶ 7, 150 N.M. 232, 258 P.3d 1024 (quoting State v. Martinez , 1999-NMSC-018, ¶ 15, 13 127 N.M. 207, 979 P.2d 718) (alteration in original). 14 B. Miranda Rights 15 To protect a defendant’s Fifth Amendment right against self-incrimination, 16 “interrogators are required to inform a su spect, before beginning questioning[,] (1) of 17 the right to remain silent, (2) of the prosp ect that any statement made may be used as 18 evidence against him [or] her, and (3) of the right to an attorney during an 195 interrogation.” State v. Quinones , 2011-NMCA-018, ¶ 9, 149 N.M. 294, 248 P.3d 1 336. “Before statements obtained during a custodial interrogation may be introduced 2 at trial, the [s]tate must demonstrate a knowing, intelligent, and voluntary waiver of 3 constitutional rights by a preponderance of the evidence.” Gutierrez , 4 2011-NMSC-024, ¶ 7 (internal quotati on marks and citation omitted). Miranda rights 5 need not be expressly waived orally or in a writing signe d by the defendant. 6 Gutierrez , 2011-NMSC-024 ¶ 17; see Martinez , 1999-NMSC-018, ¶ 19 (“[W]e do not 7 require the [s]tate to prove that [the defe ndant] expressly waived his rights in order to 8 demonstrate a constitutionally valid waiver.”). In Martinez , our Supreme Court found 9 an implied waiver of rights based on a j uvenile’s course of conduct in answering 10 police questions after being advised of his Miranda rights. Martinez , 1999-NMSC11 018, ¶ 23. The State must demonstrate th at (1) the implied waiver was knowing and 12 intelligent; (2) it was made with a full awaren ess of both the nature of the right being 13 abandoned, and the c onsequences of the decision to abandon it; and (3) it was 14 voluntary, the product of a free and deliberat e choice, rather than police intimidation, 15 coercion, or deception. Id. ¶ 14. 16 Courts evaluate the totality of the ci rcumstances and the particular facts, 17 including consideration of the mental and physical condition, 18 background, experience, and conduct of the accused, as well as the 19 conduct of the police, in determining whether the [s]tate has successfully 20 carried its burden in demonstrating a knowing and voluntary waiver. 216 Id. (internal quotation marks and citations omitted). 1 C. Analysis 2 1. Defendant’s Waiver is Valid Under the Fifth Amendment of the United 3 States Constitution 4 On September 24, 2009, Defendant was in custody at the police station, having 5 been arrested on a warrant for stealing his mother’s debit card, when he was 6 interrogated by two homicide detectives. De fendant did not expressly state that he 7 waived his Miranda rights and was not asked to sign a written waiver form. We 8 assess the totality of the circumstances in order to determine whether Defendant 9 implicitly waived his Miranda rights. 10 We first examine whether Defendant knowingly and intelligently waived his 11 rights. On September 24, 2009, Defendant was nineteen years old and married. See 12 State v. Jonathan M. , 109 N.M. 789, 791, 791 P.2d 64, 66 (1990) (stating that “a child 13 over age fifteen is unlikely to make an involuntary statement . . . after receiving 14 Miranda warnings”). Defendant had already had several experien ces with juvenile 15 and adult arrests and court proceedings. See Martinez , 1999-NMSC-018, ¶ 24 16 (discussing that “previous contacts with law enforcement . . . would . . . ma[k]e the 17 surroundings much less intimidating”). As anadult, Defendant had been in prison and 18 jail for crimes against his mother’s person and her property. De fendant pled guilty to 19 attempted aggravated assault of his mother for which he spent time in prison and was 207 jailed for probation violationswhen he tested positive for a controlled substance and 1 admitted to stealing his mother’s debit card. 2 The interview took place at 11:24 p.m. and lasted sixteen minutes. See 3 Martinez , 1999-NMSC-018, ¶ 22 (observing that an interview lasting approximately 4 one hour “was not particularlylong”). The detectives te stified that Defendant was not 5 under the influence of drugs or alcohol. They testified that Defendant was awake, 6 alert, coherent, and talkativ e. Prior to the questioning of Defendant, the detectives 7 read him the Miranda rights. As each right was readto him, Defendant responded in 8 the affirmative that he understood it. Afte r all the rights were read, Defendant again 9 responded in the affirmative that he underst ood his rights. Defendant was also asked 10 twice and responded twice thathe understood that he had the right to stop answering 11 questions at any time. After the Miranda rights were read to him, and he stated that 12 he understood each of them, Defendant began immediately answering the detectives’ 13 questions. Defendant never stopped answering the questions, never requested to stop, 14 and did not request an attorn ey. We hold that, under the to tality of the circumstances, 15 Defendant knowingly and intelligently waived his Miranda rights. 16 We next address whether Defendant voluntarily waived his rights or whether 17 his waiver was the product of police intimidation, coercion, or deception. See 18 Gutierrez , 2011-NMSC-024, ¶ 22 (observing that a defendant’s claim that he did not 198 voluntarily waive his Fifth Amendment rights under Miranda requires a separate 1 analysis from whether the police coerced th e defendant into c onfessing). Defendant 2 argues that the detectives d eceived him into waiving his Miranda rights. Defendant 3 contends that he was deceived because th e two homicide detectiv es informed him at 4 the outset of the interview and prior to being advised of his rights that they were there 5 in reference to the disappearance of his mo ther. Yet, they had arrested him on an 6 outstanding felony warrant for the theft of his mother’s debit card and jewelry, and 7 they proceeded to question him about stealing his mother’s debit card and using it 8 with his wife to make unauthorized purch ases that led to his admissions and the 9 larceny and conspiracy indictments. Mo reover, Defendant argues that because the 10 detectives told him that the subject of the interview was his mother’s disappearance 11 and because they told him th ey knew he had been in jail when his mother disappeared, 12 he was deceived into a sense of security about talking to the detectives, and he was 13 tricked into waiving his right s. In addition, according to Defendant, his prior attorney 14 had assured him that the theft charges were “all finished” and “done with” once he 15 admitted to stealing his mother’s deb it card in connection with the probation 16 revocation proceedings. As such, Defendant was also deceived into a sense of 17 security about waiving his rights and answ ering the theft-related questions. Thus, 18 Defendant contends that the detectives affi rmatively misrepresented the subject matter 199 of the interview—his mother’s disappearan ce—and their failure to tell him that he 1 would also be questioned about the thefts was so deceptive that it invalidated his 2 waiver of his Miranda rights. The district court agreed and granted the motion to 3 suppress, stating, at the second hearing, that the police “cannot deceive someone to 4 get their waiver” and, since the waiver was “a product of deception[,] . . . it was . . . 5 defective.” We disagree. 6 Our case law requires that we view any alleged police deception in light of the 7 totality of the circumstances to determine whether a waiver is voluntary. See 8 Gutierrez , 2011-NMSC-024, ¶ 15 (“One advantage of the totality-of-the9 circumstances approach is that it allows courts to take into account those special 10 concerns that are present when young persons, often with limited experience and 11 education and with immature judgment, are involved. Another advantage is that it 12 refrains from imposing rigid restraints on police and courts in dealing with an 13 experienced older juvenile with an extensive prior record who knowingly and 14 intelligently waives his Fifth Amendment rights and voluntarily consents to 15 interrogation.” (internal quotati on marks and citations omitted)); see also State v. 16 Evans , 2009-NMSC-027, ¶ 46, 146 N.M. 319, 210 P.3d 216 (applying the totality-of17 the-circumstances test in th e context of determining whether a confession is voluntary 18 and stating that “[o]ur case law makes clear that deception is not coercive per se”); 1910 State v. Aguirre , 91 N.M. 672, 674, 579 P.2d 798, 800 (Ct. App. 1978) (“[D]eception, 1 in itself, is not a basis for ruling, as a matter of law, that a confession should be 2 suppressed.”). In Martinez , the defendant, a juvenile, argued that “the police 3 prevented a knowing and voluntary waiver of rights by excluding his mother from the 4 first interview by way of deception.” 1999-NMSC-018, ¶ 20. His mother had been 5 told that the defendant wa s being questioned about a shoplifting incident when he 6 actually was being questioned about a homicide. Id. ¶ 3. Our Supreme Court 7 analyzed the deception in Martinez in light of the totality of the circumstances, 8 concluding that the defendant had voluntarily waived his rights. Id. ¶ 23 (finding an 9 implied waiver by a juvenile based on hi s course of conduct in answering police 10 questions after being advised of his Miranda rights). 11
In Martinez , our Supreme Court relied on Colorado v. Spring , 479 U.S. 564, 12 575-77 & n.8 (1987), wherein the United States Supreme Court “refus[ed] to require 13 police to inform a suspect of the scope or subject of an interrogation but [left] 14 unaddressed the situation of an affirmative misrepresentation to a suspect by police.” 15 Martinez , 1999-NMSC-018, ¶ 24. Defe ndant contends that the detectives in this case 16 so affirmatively misrepresented the subject matter of the interview that his subsequent 17 waiver of rights was invalid. The State argues that no affirmative misrepresentation 1811 occurred here and the totality-of-the-circumstances test validates Defendant’s waiver. 1 We agree with the State. 2 In this case, where the facts are undisputed, but the application of the law to the 3 facts is at issue, we review de novo whether the detectives’ statement at the outset of 4 the interview prior to the Miranda rights constituted an affirmative misrepresentation 5 that invalidated Defendant’s waiver. See State v. Attaway , 117 N.M. 141, 145-46, 870 6 P.2d 103, 107-08 (1994) (concluding that “the mixed question [of fact and law] 7 involved in determining exigent [circums tances] lies closest in proximity to a 8 conclusion of law[] and . . . that such de terminations are to be reviewed de novo”), 9 modified on other grounds by State v. Lopez , 2005-NMSC-018, 138 N.M. 9, 116 P.3d 10 80; see also State v. Williamson , 2009-NMSC-039, ¶ 27, 146 N.M. 488, 212 P.3d 376 11 (observing that “[i]t is the duty of appellatecourts to shape the parameters of police 12 conduct by placing the constitutional requirement . . . in factual context[,] and we can 13 discharge that duty only through meaningful review of lower court determinations [] 14 applying de novo review to warrantless searches because the legal rules for probable 15 cause and reasonable suspicion acquire content only through application. Independent 16 review is therefore necessary if appellate courts are to maintain control of, and to 17 clarify, the legal principles” (first alterati on in original) (internal quotation marks and 18 citations omitted)). 1912 As we discussed above withregard to the totality of the circumstances at the 1 time of the interview, Defendant was a ni neteen-year-old married adult who was in 2 full control of his faculties and had prior exposure to the criminal justice system. 3 Defendant was advised of hi s rights and stated that heunderstood each of them. He 4 immediately proceeded to answer the det ectives’ questions and never hesitated or 5 requested an attorney. Our review of the interview reveals that (1) the detectives did 6 not deceive Defendant about the subject matter of the interview when virtually all of 7 the detectives’ questions related to his mother’s disappear ance and the events leading 8 up to it, including his past and present crimes against his mother’s person and her 9 property; (2) Defendant’s relationship with his mother and his mother’s relationship 10 with his wife, who is accused with others of the kidnaping and killing; and (3) the 11 possible motives Defendant and others may have had for the killing immediately 12 following his mother’s police report against him and his wife about the thefts. The 13 questions also focused on what Defendant knew from others about his mother’s 14 kidnaping and murder, whether hehad helped to plan thes e crimes, and what he had 15 told others about his negative feelings abouthis mother. We conclude that there was 16 no affirmative misrepresentation here. De fendant’s waiver was not the product of 17 police deception. 1813 During the interview, Defendant did not tell the detectives that his prior 1 attorney had assured him that the debit card theft charges were “all finished” once he 2 confessed to stealing the card and violating hi s probation. See State v. Munoz , 3 1998-NMSC-048, ¶ 26, 126 N.M. 535, 972 P.2d 847 (observing that where “[the 4 d]efendant’s assertion is entirely subjective and there is nothing else put forth, such 5 as a mode of reaction or a refusal to cooperate, to suggest that the FBI agents should 6 have known that this particular suspect should be treated according to a heightened 7 apprehension of police in a questioning in a murder investigation[,] . . . there was no 8 opportunity for [police] misconduct”). However, Defendant had just been arrested for 9 that very crime. Similarly, Defendant c onfidently and mistakenly may have assumed 10 that, because the police knew that he had been in jail at the time of his mother’s 11 disappearance and murder, he could not have had any criminal exposure for 12 participating in or facilitating these or any other crimes against his mother’s person 13 and property. The detectives did not makeaffirmative misrepresentations to him to 14 that effect. Defendant was likewise mistaken in a pparently assuming that if he told 15 the police that his wife took the debit card, he would have no criminal exposure as an 16 accessory or as a co-conspirator for using th e card with his wife to make unauthorized 17 purchases. While advising Defendant of his Miranda rights, the detectives informed 18 him twice that he could stop answering que stions at any time, and he acknowledged 1914 twice that he understood. Throughout the si xteen-minute interview, Defendant did not 1 stop answering questions, hesitate, or request an attorney. We conclude that, under 2 the totality of the circumstances, the State showed, by a preponderance of the 3 evidence, that Defendant voluntarily waived his Miranda rights. We reverse the 4 district court’s decision to grant the motion to suppress. 5 2. Defendant’s Waiver Was Valid Under the New Mexico State Constitution 6 Defendant argues that the New Mexico State Constitution Article II, Section 15 7 provides greater protection to Defendant than the United States Constitution in this 8 context. We disagree. 9
In State v. Gomez , our Supreme Court adopted the interstitial approach to 10 interpreting the New Mexico State C onstitution. 1997-NMSC-006, ¶ 19, 122 N.M. 11 777, 932 P.2d 1. “A state court adopting this approach may diverge from federal 12 precedent for three reasons: a flawed federal analysis, structural differences between 13 state and federal government, or distinctive state characteristics.” Id. The district 14 court heard argument on the state constitutional question and suggested that New 15 Mexico may provide broader protection in this context. The district court made no 16 formal ruling on the matter; however, it conc luded that Defendant’s statements should 17 be suppressed under the Fifth Amendment of the United States Constitution. Since 1815 we have reversed this determination, we now address wh ether Defendant is afforded 1 more protection under the state constitution. 2 Defendant argues that the recent United States Supreme Court majority opinion 3 in Berghuis v. Thompkins , ___ U.S. ___, 130 S. Ct. 2250 (2010), is flawed because 4 it focuses on whether a defendant unambiguouslyasserted his rights. Defendant urges 5 us to adopt the minority opinion’s critique of this approach and focus on whether the 6 State has shown an unambiguous waiver as being more in line with New Mexico 7 constitutional law. We are not persuaded. Rather, we agree with the district court’s 8 assessment that Thompkinsprovides further support for the implied waiver inquiry set 9 forth in Martinez , which recognizes the totality-of- the-circumstances approach that 10 includes a focus on the conduct of the defendant and the poli ce as relevant to whether 11 the state has met its burden. InGutierrez , our Supreme Court recognized that the 12 Thompkinsmajority opinion provided support for New Mexico’s law on implied 13 waivers. In quoting the opinion’s language, our Supreme Court explained that “[t]he 14 main purpose of Miranda is to ensure that an accused is advised of and understands 15 the right to remain silent and th e right to counsel.” 2011-NMSC-024, ¶18 (alteration 16 in original) (internal quotation marks and citation omitted). Our Supreme Court 17 reasoned that, “[i]f anything, our subsequent cases have reduced the impact of the 18 Miranda rule on legitimate law enforcement while reaffirming the decision’s core 1916 ruling that unwarned statements may not be used as evidence in the prosecution’s case 1 in chief.” Id . (alteration in original) (internal quotation marks and citation omitted). 2 Moreover, this Court has recently declined to interpret Article II, Section 15 of the 3 New Mexico Constitution more expansively than the Fifth Amendment. See 4 Quinones , 2011-NMCA-018, ¶¶ 17-18; see also State v. Perry , 2009-NMCA-052, 5 ¶ 31, 146 N.M. 208, 207 P.3d 1185. 6 Defendant further argues that we should provide more protection under the New 7 Mexico Constitution because “greater consis tency can be achieved in New Mexico if 8 our courts base their rulings on our own constitution[,]” and “because the state courts 9 are better able to address local interests and balance the rights of citizens and the 10 authority of the police.” We believe thatNew Mexico’s totality-of-the-circumstances 11 test for determining whether a waiver of Miranda rights is knowing, intelligent, and 12 voluntary, adequately addre sses any unique attributes of a particular defendant’s 13 background, his or her cultural and linguis tic heritage, and expectations towards 14 authority figures in this multi-cultural state. These unique attributes, if present in a 15 particular defendant, would certainly impact a totality-of-the-circumstances inquiry. 16 In this case, however, there is no indication that any of thes e attributes were at play. 17 Defendant was responsive, talkative, and confident prior to and during the interview 18 in response to the reading of his Miranda rights and in his interaction with the 1917 detectives. Defendant held his own during the interview in denying that he knew 1 anything about his mother’s stolen jewelr y and debit card and “s ticking by” his story 2 that he knew nothing about his mother’s murder. See Martinez , 1999-NMSC-018, 3 ¶ 24 (reviewing whether the statements were voluntary, our Supreme Court stated that 4 “our review of the interview reveals that [the defendant]’s will was not overborne and 5 that he spoke freely and voluntarily to the police, even maintaining throughout . . . that 6 he did not kill [her]”). 7 Under the totality of the circumstances of this case, we decline to hold that 8 Defendant’s statements must be suppre ssed under the New Mexico State Constitution. 9 III. CONCLUSION 10 Reviewing the totality of the circumstances, including the detectives’ and 11 Defendant’s conduct, we c onclude that, under the Fifth Amendment of the United 12 States Constitution and Article II, Secti on 15 of the New Mexico Constitution, the 13 State satisfied its burden of demonstrating by a preponderance of the evidence that 14 Defendant knowingly, intelligently , and voluntarily waived his Miranda rights. We 15 reverse the district court’s order suppressi ng Defendant’s statements at the September 16 24, 2009 interview and remand for further proceedings in district court. 1718 IT IS SO ORDERED. 1

_______________________________ 2 RODERICK T. KENNEDY, Judge 3

WE CONCUR: 4

_________________________________ 5 CELIA FOY CASTILLO, Chief Judge 6

_________________________________ 7 J. MILES HANISEE, Judge 8