Interlocutory Appeal from the District Court Jefferson County
District Court Case No. 17CR311 Honorable Philip McNulty,
Chief Judge
Attorneys for Plaintiff-Appellant: Peter A. Weir, District
Attorney, First Judicial District Donna Skinner Reed, Chief
Appellate Deputy District Attorney Golden, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender
Katherine Powers Spengler, Supervising Deputy State Public
Defender Golden, Colorado
OPINION
BOATRIGHT JUSTICE
¶1
In this interlocutory appeal, the People assert that the
trial court erred in suppressing statements of the juvenile
defendant, Dominic Barrios.[1] At issue is whether the police
sufficiently advised Barrios and his legal guardian of his
rights before he waived his Miranda rights and
agreed to talk to the police, and whether his waiver was
reliable under the totality of the circumstances. The trial
court found that the prosecution failed to establish a
reliable Miranda waiver for Barrios under section
19-2-511, C.R.S. (2018), and it ordered that his statements
be suppressed. We hold that the police detective complied
with section 19-2-511 when he advised Barrios and his legal
guardian prior to Barrios's waiver and that, under the
totality of the circumstances, the concerns identified by the
trial court do not undermine the reliability of the waiver.
Therefore, we reverse the trial court's order suppressing
Barrios's statements, and we remand to that court for
further proceedings consistent with this opinion.
I.
Facts and Procedural History
¶2
H.J. completed her grocery shopping at a Target store in
Arvada and walked to her car. Barrios was also at the Target.
According to the arrest warrant, [2] after H.J. entered her
vehicle, Barrios opened the back door, got in the back seat,
put his arm around H.J.'s throat, pulled out a knife, and
told her to drive. During the encounter, Barrios took money
from H.J. and drove her car to several different locations
before ending up at a secluded area, where he demanded that
she undress, fondled her intimate parts, and forced her to
fondle his. After driving to another isolated area, Barrios
disabled H.J.'s phone and left her with her keys and her
car. H.J. then drove to a friend's house and contacted
the police.
¶3
The Arvada Police Department received the report from H.J.
and began to gather evidence. Crime scene investigation
detectives discovered and collected latent fingerprints from
H.J.'s car. An Arvada detective ran the fingerprints
through the system, which returned a match for Barrios. The
address listed for Barrios was the home of his
great-grandmother and legal guardian, Delma Trujillo. Arvada
Police secured an arrest warrant for Barrios at that address,
and it was executed by Denver SWAT at about 1 a.m., two days
after the incident.
¶4
Detective Stephens, the lead investigator of the Arvada
Police, arrived at Barrios's house at about 2 a.m. When
Stephens arrived, Barrios was outside of the house being
transferred from a marked Denver police vehicle to an Arvada
police vehicle for his transport to the Arvada Police
Department. Stephens wanted to interview Barrios. Because
Barrios was a minor, Stephens sought to gain permission from
Barrios's guardian and went inside Trujillo's house.
Stephens found Trujillo sitting inside the house speaking
with another detective. Trujillo was eighty-four years old
and had been sleeping when police arrived. She identified
herself to Stephens as Barrios's legal guardian, and
Stephens asked her if she would be willing to accompany him
back to the police station for a formal interview with
Barrios. In response, Trujillo asked Stephens, "Did he
kill anybody?" When Stephens said no, Trujillo told him
that she was not willing to leave the house. By now it was
approximately 2 a.m.; it was mid-January and it was cold
outside. Stephens told her that he could give her a ride and
that her presence "would be ideal." Trujillo
reasserted that she did not want to leave the house. At that
point, Stephens went out to the crime scene van to retrieve
an advisement waiver form.
¶5
Before returning to Trujillo, Stephens filled out portions of
the advisement waiver form, including the date, the case
number, the time, whom the form pertained to, and a brief
description of what he was investigating. Specifically,
Stephens wrote, "Taking H[]'s car, carrying a knife,
and touching H[]."[3] Stephens then brought the form to
Trujillo and "went through the rights" with her,
including Barrios's Miranda rights. Trujillo
signed the form in two separate spots indicating that she
understood Barrios's rights, approved of any decision he
made or would make to talk to the police, and was willing to
waive her presence during any questioning. Trujillo was not
offered an opportunity to speak with Barrios before signing
the waiver, nor did she ask to speak with Barrios. At this
point, there were approximately ten police officers and
investigators searching the house, although Stephens was the
only person from law enforcement speaking with Trujillo.
After Stephens finished speaking with Trujillo, he left and
returned to the Arvada Police Department where Barrios was in
custody.
¶6
Once Stephens arrived back at the police station, the booking
officer informed him that Barrios wanted to speak with the
lead investigator on the case. Barrios was taken to an
interview room, where he was joined by Stephens. Stephens
verbally advised Barrios of his Miranda rights and
reiterated to Barrios that he did not have to speak with
police. He also verbally advised Barrios that, since Barrios
was a minor, he had an additional right to have a parent or
guardian present at questioning. At that point, Stephens
handed Barrios the advisement waiver form that Trujillo
previously signed containing a written list of Barrios's
rights, including his Miranda rights and, in
boldface font, the right to have a parent or guardian present
during questioning. Stephens read Barrios these rights and
instructed him to put his initials next to each right if he
understood the right. Barrios signed his initials next to
each right. Before Barrios signed the waiver of rights form,
however, he asked Stephens if his "rights would go out
the window" if he signed. Stephens informed Barrios that
his rights would not go away and that he could stop the
interview at any time. Barrios then signed the advisement
waiver form, acknowledging that he understood his
rights-including the right to have a guardian present for the
interview-and that he waived those rights. At that time,
Stephens began questioning Barrios. Throughout the
questioning, Stephens struck a casual tone with Barrios,
using what the trial court described as a "young
person's questioning mode . . . dropping the F-bomb and
cussing." The trial court concluded that this method of
questioning, while probably unprofessional, did not impact
the voluntariness of Barrios's statements.
¶7
Over the course of just under an hour, Barrios told Stephens
his version of what happened and corroborated much of what
H.J. had told police. At times, Barrios disagreed with
H.J.'s version of events, especially the allegations that
he used a knife and sexually assaulted her. By the end of the
interview, however, Barrios implicated himself in several
serious offenses. Ultimately, the People charged Barrios as
an adult with eighteen criminal counts, including kidnapping,
aggravated robbery, and sexual assault.
¶8
Barrios moved to suppress the statements he gave to Stephens,
claiming, as relevant here, that there was a lack of an
express waiver of parental presence as required by section
19-2-511. At the end of the hearing, the trial court granted
Barrios's motion to suppress his statements. In making
its decision, the court discussed factors bearing on the
reliability of a waiver of rights as articulated in Grant
v. People, 48 P.3d 543, 549-50 (Colo. 2002). In granting
the motion to suppress, however, the trial court relied
primarily on two findings: (1) the advisement waiver form
minimized the seriousness of the offenses, and (2) the police
did not bring Barrios back to his house to give him an
opportunity to consult with Trujillo prior to his
Miranda waiver. The court also stated that "if
this were an adult that the police were dealing with, the
Court would have found that [Barrios] was fully advised
pursuant to Miranda, waived his rights, and the
statements were voluntary."
¶9
The People filed this interlocutory appeal as authorized by
section 16-12-102(2), C.R.S. (2018), and C.A.R. 4.1.
II.
Analysis
¶10
We must determine, under the totality of the circumstances,
whether the advisement waiver here was reliable. To make this
determination, we begin by looking to the express provisions
of section 19-2-511. Then, we evaluate the additional
circumstances that bear on the reliability of the waiver.
Finally, we hold, under the totality of the circumstances,
that the police detective complied with section 19-2-511 when
he advised Barrios and his legal guardian prior to
Barrios's waiver.
A.
Standard of Review
¶11
A trial court's ruling on a motion to suppress presents a
mixed question of fact and law. People v. Gothard,
185 P.3d 180, 183 (Colo. 2008). We defer to the trial
court's factual findings if those findings are supported
by competent evidence in the record; however, we review the
trial court's legal conclusions de novo. Id.
B.
Miranda Advisement
¶12
Prior to any custodial interrogation, police officers must
advise suspects of their constitutional rights to refrain
from speaking with police and to have an attorney present
during questioning. Miranda v. Arizona, 384 U.S. 436
(1966); People v. Platt, 81 P.3d 1060, 1065 (Colo.
2004). After a proper Miranda advisement, suspects
may waive their rights, but the waiver must be
"voluntary, knowing, and intelligent."
Platt, 81 P.3d at 1065. The prosecution bears the
burden of showing, by a preponderance of the evidence, that
the waiver is reliable. Id. Courts evaluate the
reliability of a suspect's Miranda waiver based
on the totality of circumstances, and "no single factor
is determinative." Id. The purpose of a
Miranda advisement is to "guard against
involuntary incriminating statements" made by a suspect
during a custodial interrogation. People v.
Probasco, 795 P.2d 1330, 1333 (Colo. 1990). In Colorado,
juvenile suspects, even if charged as adults, are afforded an
additional protection: Their parent or guardian must be given
the opportunity to be present during any custodial
interrogation prior to any decisions made by the juvenile as
to whether to waive his or her Miranda rights.
See § 19-2-511(1). That right can also be
waived. See § 19-2-511(5). This court, however,
will not evaluate the wisdom of the choice to waive. See
People v. Janis, 2018 CO 89, ¶ 28, 429 P.3d. 1198,
1204.
C.
Section 19-2-511
¶13
Section 19-2-511 provides that statements made by juveniles
during any custodial interrogation are generally not
admissible unless a parent or legal guardian is present.
§ 19-2-511(1). Statements may be admissible without a
guardian's presence, however, if both the
guardian and the juvenile expressly waive the guardian's
presence in writing after they both receive a full
advisement of the juvenile's rights. § 19-2-511(5).
Section 19-2-511 provides, in relevant part:
(1) No statements or admissions of a juvenile made as a
result of the custodial interrogation of such juvenile by a
law enforcement official concerning delinquent acts alleged
to have been committed by the juvenile shall be admissible in
evidence against such juvenile unless a parent, guardian,
or legal or physical custodian of the juvenile was present at
such interrogation . . . .
(5) Notwithstanding the provisions of subsection (1) of this
section, the juvenile and his or her parent, guardian, or
legal or physical custodian may expressly waive the
requirement that the parent, guardian, or legal or physical
custodian be present during the juvenile's
interrogation. This express waiver must be in writing
and must be obtained only after full advisement of the
juvenile and his or her parent, guardian, or legal or
physical custodian of the juvenile's rights prior to the
taking of the custodial statement . . . .
(Emphases added.) The statute is designed to "ensure
that any waiver of a juvenile's constitutional rights
will be made knowingly and intelligently." People v.
Lehmkuhl, 117 P.3d 98, 102 (Colo.App. 2004) (citing
People v. Blankenship, 30 P.3d 698 (Colo.App.
2000)). In enacting section 19-2-511, the General Assembly
"sought to ensure that the juvenile and parent were
fully aware of the scope and content of the rights they were
waiving and to impress upon them the importance of those
rights." Grant, 48 P.3d at 549. To determine
whether the juvenile received a proper Miranda
advisement and responded with a reliable waiver, we first
consider whether the express provisions of section 19-2-511
were satisfied. See People v. Barrow, 139 P.3d 636,
638 (Colo. 2006). If they were, we then look to all relevant
factors that bear on the reliability of the waiver and
decide, under the totality of the circumstances, whether the
waiver was reliable. See Grant, 48 P.3d at 549-50.
D.
Grant and Barrow
¶14
The trial court looked to Grant and Barrow
for direction. In Grant, we considered whether a
juvenile advisement waiver that lacked the juvenile's
signature nevertheless satisfied section 19-2-511's
requirement that any waiver be in writing. Id. at
544. We held that it did. Id. Deeming the statute
ambiguous, we noted the myriad circumstances that may be
present in a juvenile waiver case that "may bear on the
reliability of [the] waiver." Id. at 549.
Specifically, we presented the following non-exhaustive list
of factors: (1) "where, when, and at what stage in the
proceedings the writing appeared"; (2) "whether the
juvenile and parent agreed to the writing simultaneously or
separately"; (3) "whether their consent was
garnered in person"; (4) "whether they were offered
ample opportunity to consult" with one another; (5)
"whether they did consult, privately or with the police
present"; (6) "whether the [juvenile and the
guardian] were aware that the written waiver was a statutory
requirement"; (7) "whether there existed any
evidence that signatures, if present, were coerced"; and
(8) "whether any other evidence supports or undermines
the validity of the waiver." Id. at 549-50. We
emphasized, however, that courts "should examine all
relevant circumstances bearing on the reliability of the
written waiver and uphold it when appropriately
supported." Id. at 550. Ultimately, we held
that the waiver of rights was reliable, noting that "the
waiver was in writing, bore the signature of a parent, was
obtained after full advisement, and was supported by ample
evidence that the juvenile consented." Id. at
545.
¶15
In contrast to Grant, we found that the juvenile in
Barrow "was not fully advised and did not
expressly waive his right to have a parent present." 139
P.3d at 639. In Barrow, after police located and
arrested the juvenile, they transported him to the police
station and contacted his mother. Id. at 637. His
mother came down to the police station and spoke with her
son, first with police in the room and then in private; she
then signed the advisement waiver form and went home.
Id. Shortly thereafter, police advised the juvenile
of his Miranda rights with the waiver form that his
mother had signed. Id. at 638. He indicated that he
understood his rights and signed the waiver form.
Id. The advisement waiver form, however, did not
inform the juvenile that he had a right to have a parent
present during questioning, and police did not verbally
advise him of that right. Id. at 639. We therefore
held that the juvenile was not fully advised of his rights
and therefore did not expressly waive his parental presence
right pursuant to section 19-2-511. Id. With our
understanding of these cases in mind, we now to turn to the
instant matter and determine whether the advisement waiver
here was reliable.
E.
...