State v. Fardan

PAGE, Justice (concurring). I concur in the result. I disagree, however, with the court’s analysis of law enforcement’s failure to allow Fardan to have access to his father before his first interrogation. Ordinarily, the State will be deemed to have met its burden of proving a knowing, voluntary, and intelligent waiver of Miranda rights if it shows that a Miranda warning was given and that before talking with the police the individual indicated that he understood his Miranda rights. State v. Camacho, 561 N.W.2d 160, 168 (Minn.1997). However, if there is evidence indicating that the waiver was not knowing, voluntary, and intelligent, the district court must make a subjective factual inquiry to determine whether, under the totality of the circumstances, the waiver was knowing, voluntary, and intelligent. Id. When making its inquiry, the court is to consider such factors as age, maturity, intelligence, education, experience, and ability to comprehend; the lack or adequacy of warnings; the length and legality of the detention; the nature of the interrogation; physical deprivations; and limits on the individual’s access to counsel, friends, and others. Id. In State v. Burrell, 697 N.W.2d 579, 597 (Minn.2005), we concluded that Burrell’s waiver of his Miranda rights was ineffective because of the lack of a parent’s presence. Here, the court distinguishes Bur-rell on the basis that in Burrell the 16-year-old defendant, who was arrested by the police just before noon, made three requests to talk to his mother before he was interrogated and ten more after the interrogation began, while Fardan made only one request before he was interrogated and one at the end of the interrogation. *324 Based on these distinctions, the court concludes that Fardan’s waiver was knowing, voluntary, and intelligent. Although the facts of this case are somewhat different than those in Burrell , they are sufficiently similar to compel the same conclusion— Fardan’s waiver of his Miranda rights was ineffective because of the lack of a parent’s presence. Fardan, at the age of 15 years, 2 months, was arrested at a friend’s house sometime shortly before midnight on October 14, 2005. His father was nearby at the time and told the arresting officers that he wanted to be present if Fardan was questioned. After his arrest, Fardan, who had no previous experience with the adult criminal justice system, was transported in handcuffs to city hall. Upon arriving at city hall, Fardan asked the officers who had transported him “if [his] dad could be present, like, he can be with me” and the officers responded saying “he will.” Contemporaneously, Fardan’s father drove to city hall where he reiterated to law enforcement officers that he wanted to be present for any questioning of his son. Although arrested sometime before midnight, Fardan’s interrogation did not begin until approximately 3:25 a.m. Fardan spent much of the time between his arrival at city hall and the beginning of his interrogation alone in an interview room. At some point around 3 a.m. Fardan’s father was told that he was not going to be able to see his son and that he might as well go home, which he did. Interestingly, after not being given access to his father during that first interrogation, when law enforcement officers sought to interrogate him again on October 17, 2005, Fardan emphatically requested his father saying that he did not want to answer questions by himself, that he would feel more comfortable with his father present, and that he wanted his father immediately. While this second interrogation took place two days after the first interrogation, Fardan’s emphatic request to have his father present sheds light on his mental state throughout the interrogation process, as evidenced by his testimony at the pretrial hearing. When asked why he had not requested, during the interrogation, to have his father present, Fardan explained that he relied on the fact that he had been told that he would be allowed to see his father. When questioned about why he requested his father’s presence at the outset of the second interrogation, Fardan responded, “I knew they wasn’t going to do it like they did the first time. Like, I know I had to ask in the beginning to make sure he was going to be there.” In addition, this second interview sheds light on law enforcement’s failure to allow Fardan’s father to be present at the first interrogation. The detective who conducted the second interrogation responded to Fardan’s request for his father by attempting to convince Fardan to give a statement in the absence of his father and, when unsuccessful, terminated the interrogation. Given these facts, I conclude that Far-dan’s waiver of his Miranda rights was ineffective because of the lack of his father’s presence. Therefore, I also conclude that Fardan’s statement was admitted in error. Nevertheless, I would affirm Fardan’s convictions because the error in admitting the statement was harmless beyond a reasonable doubt in that Fardan’s convictions were “surely unattributable” to that error. Burrell, 697 N.W.2d at 597 (error is harmless beyond a reasonable doubt “if the verdict is ‘surely unattributable’ to the error”) (internal citations omitted).