Promise to not arrest and surrounding circumstances support suppression

Sam Kepfield won in State v. Cousins, No. 112,497 (Kan. App. Aug. 7, 2015)(unpublished), affirming Judge Rose's suppression of incriminating statements in a Reno County aggravated criminal sodomy prosecution.  Judge Rose made the following findings regarding the interrogation:

Considering the totality of the circumstances including defendant's physical condition and the length of the interview, the State has not met the burden of proving defendant's statements were the product of his free and independent will. Primary in this analysis is the detective's statement to defendant, ‘You are not going to be arrested.’ This statement was followed by another statement, ‘I am not arresting you today[,’] but the defendant could have logically interpreted the statement as a promise that he would not, at any time, be arrested for the alleged crimes. The statement was certainly made by a person who defendant reasonably believed had the power or authority to make good on his promise.

The COA rejected the state's claim that Judge Rose did not appropriately evaluate the evidence:

The State is correct in asserting that false statements by law enforcement officers do not automatically render a suspect's confession involuntary. But here, the district court did not rely on any assertion that the officers made false statements to Cousins about the evidence in the case to persuade him to confess to the crimes. Instead, the district court properly relied on the “totality of the circumstances” in determining that Cousins' statements were not the product of his free and independent will.

In summary, as the district court found, the entire interrogation lasted over 3 hours. Cousins was 18 years old and he informed the detectives that he was not feeling well. The detectives repeatedly told Cousins that he was not going to be arrested. At one point Cousins asked, “You want me to just lie and say something to get out of here?” Cousins strenuously maintained his innocence throughout most of the interview. Then, about 2 hours and 20 minutes into the interview, Cousins finally made incriminating statements as a result of leading and suggestive questioning by the detectives. On several occasions, Cousins simply adopted the fact scenarios that were suggested to him by the officers as to how he molested N.A.N. Any one of the circumstances of the interview, standing alone, may not have been enough to make the statements involuntary. However, all the circumstances together support the district court's conclusion that Cousins' statements were not the product of his free and independent will. Thus, we conclude the district court did not err in granting Cousins' motion to suppress his statements.

As a result, the COA affirmed the suppression order.

 [Update: the state filed a PR on September 8, 2015.]

[Further update: the KSC denied the state's PR and the mandate issued on February 2, 2016.]