IN RE JULIAN DE LOS SANTOS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of JULIAN DE LOS SANTOS,
Minor.
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 28, 2001
Petitioner-Appellant,
v
No. 232592
Kent Circuit Court
Family Division
LC No. 95-113801-DL
JULIAN DE LOS SANTOS,
Respondent-Appellee.
Before: Gage, P.J., and Jansen and O’Connell, JJ.
JANSEN, J. (dissenting).
I respectfully dissent because I believe that the trial court properly granted respondent’s
motion to suppress his police statement.
While the majority exerts a great amount of its analysis into its ruling that the trial court
erred in considering that respondent would be required to register as a sex offender under the Sex
Offenders Registration Act, MCL 28.721 et seq., regardless of whether this factor is error or not,
the totality of the circumstances surrounding the interview shows that the trial court properly
suppressed respondent’s statement. As acknowledged by the majority, the presence or absence
of a single factor in the totality of the circumstances is not determinative of voluntariness.
People v Cipriano, 431 Mich 315, 334; 429 NW2d 781 (1988). Because the record supports the
trial court’s finding that the statement was not voluntary, I believe that the majority is improperly
substituting its view of the record for that of the trial court.
Respondent, a twelve-year-old child, is charged with sexually assaulting another child.
At the time of the alleged assault, respondent was a ward of the court, having recently been
abandoned by his mother and left on his own. Respondent and the alleged victim shared the
same protective services caseworker. Two Grand Rapids police detectives went to respondent’s
school on February 17, 2000, to interview respondent. The interview started at about 11:00 a.m.,
and Detective Rogers, the lead detective, testified that while she could not recall the exact length
of the interview, she believed it lasted about an hour.
-1-
The police detectives were met by a receptionist at the school and other “school
personnel” went to get respondent from his class. Interestingly, there is absolutely no indication
that the police detectives had any contact either with the school principal or any of respondent’s
teachers at any time. Both detectives were present and both interviewed respondent, although
Detective Rogers asked most of the questions. No parent or other adult was present to advise
respondent. Indeed, there was no indication that respondent was ever given an opportunity to
have any adult present with him.1
Most importantly, the police assured respondent that he was not in trouble and would not
be arrested, no matter what he told them. Respondent denied any involvement in the alleged
offense but, after repeated questioning, began to cry and gave a fourth statement in which he
confessed to placing his penis on the unclothed buttocks of the other child. Respondent was then
permitted to return to class. The trial court found that there was no coercion and that respondent
was not in custody, but nonetheless granted respondent’s motion to suppress the confession,
noting that the charged offense could lead to respondent’s inclusion on the Sex Offender’s
Registry, that there was no adult ally present, and that the police promised respondent that he
was not in trouble.
Here, respondent was a small twelve-year-old child in the fifth grade whose mother had
recently abandoned him and moved to Texas, leading to his becoming a ward of the state and the
subject of a neglect petition. This is not a case like In the Matter of SLL, 246 Mich App 204,
210; 631 NW2d 775 (2001), where the respondent knew that his mother was “readily available to
him” and had consented to the interview. Respondent here had no adult to turn to, his protective
services worker was also the caseworker for the child-victim of the alleged assault, and no
guardian or supporting adult was sought or present at respondent’s interview. Indeed, the trial
court clearly placed a great deal of emphasis on the fact that the police officers made no
reasonable effort to ascertain whether any adult was in a position to act as respondent’s parent.
Further, respondent had little prior contact with the police and was questioned repeatedly
even after he made a statement. The interview lasted about one hour. The police told respondent
that he would not be arrested, no matter what he said, and that he was not in trouble. The trial
court also placed great emphasis on the fact that the police officers represented to respondent that
he would not be arrested no matter what he said and that such a representation could lead
respondent to conclude that there would be no future implications for him in the criminal system.
I agree, and would add that such an implication can certainly be construed to be coercive since
respondent’s subsequent arrest was based on his interview. By the time respondent made his
fourth statement, the confession to a criminal act, he was crying.
1
The prosecutor asked Detective Rogers at the evidentiary hearing whether respondent ever
invoked his right to counsel and Detective Rogers stated that he did not. However, Detective
Rogers had previously testified that respondent was not given his constitutional warnings
pursuant to Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d (1966), because
respondent was not under arrest and she was not planning to arrest respondent no matter what he
said. Similarly, Detective Westmoreland also testified that Miranda warnings were not needed
because respondent was not under arrest. Suffice it to say that arrest does not trigger the giving
of Miranda warnings; rather, it is well settled that Miranda warnings are required during a
custodial interrogation. People v Hill, 429 Mich 382; 415 NW2d 193 (1987).
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Considering the totality of all the circumstances surrounding the interview, I cannot
conclude that the trial court erred in finding that the respondent’s statement was not voluntary. I
would affirm the trial court’s order suppressing respondent’s police statement.
/s/ Kathleen Jansen
-3-
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