Justice HOBBS
delivered the Opinion of the Court.
In this interlocutory appeal brought under C.A.R. 4.1, the prosecution challenges the trial court's order suppressing statements [1092]*1092the defendant, Anselmo Bonilla-Barraza, made while in police custody.1 Police advised Bonilla-Barraza of his Miranda2 rights after taking him into custody. Bonil-la-Barraza then invoked his right to remain silent in two separate interviews, but police subjected him to further interrogation in both of those interviews and in a third interview.
We affirm the trial court's suppression order.3 We hold, under the totality of the cireumstances, that the police violated Bonil-la-Barraza's constitutional right to remain silent by continuing to conduct custodial interrogation of him on three occasions after he had clearly invoked that right. «Consequently, the statements Bonilla-Barraza made in those interrogations are inadmissible in this case.
I.
On the evening of April 23, 2008, a 911 dispatcher received a call from a nine-year-old girl, who reported that her parents had been fighting and that her mother was dead. Upon arriving at the trailer where the girl lived, police officers found the mother's body. Bonilla-Barraza, the victim's fiancé, was present at the trailer, along with his three stepchildren aged nine, seven, and six years, and a nine-month-old girl who was the daughter of the victim and Bonilla-Barraza.
The Colorado Springs police transported Bonilla-Barraza and the four children to the police operations center, and placed Bonilla Barraza in an interview room, At 11:30 pm., about an hour after Bonilla-Barraza was placed in the interview room and about two and a half hours after the 911 call, Detective Wayne Bichel of the Colorado Springs Police Department began to question Bonilla-Bar-raza. A translator was present at this interview and at subsequent interviews to interpret for Bonilla-Barraza, who is a native of Mexico and does not speak English.
Detective Bichel initially asked Bonilla-Barraza about personal identifying information, such as his date of birth and occupation, and then read him Miranda warnings. Detective Bichel asked, "Having these rights in mind, do you wish to talk to me now?" Bon-illa-Barraza answered, "No." Before ending the interview, Detective Bichel asked Bonil-la-Barraza a total of twelve further questions about the names, ages, and gender of the children, and which of the four children he had fathered. He also asked whether Bonil-laz-Barraza had any questions for him, to which Bonilla-Barraza replied, "Not right now, no."
After Detective Bichel ended the interview, Bonilla-Barraza remained in the interview room. The police offered him drinks and restroom visits, took photographs of his body, and told him to change into a jail uniform. At least some of this time, Bonilla-Barraza's stepchildren were playing outside the interview room and could be heard from within the room.
Detective Bichel returned around 2:00 a.m. on April 24. He did not give Miranda warnings at this time. After Detective Bichel told Bonilla-Barraza that the children's grandmother had taken the children, the following exchange occurred:
Detective Bichel: And earlier you said you didn't want to talk to me, have you thought about things more? Do you want to tell me-talk to me now-tell me what happened?
Bonilla-Barraza (via interpreter): Well actually no ... no.
Detective Bichel: OK. Is there a reason why? |
[1093]*1093Bonilla-Barraza (via interpreter): No, because what happened is bad ... I know you have to do more paperwork for me, but it is just too difficult.
Detective Bichel: With you sitting here, have you come up with any questions for me?
. Bonilla-Barraza (via interpreter): Well for now the only question I had was about the kids.
Detective Bichel informed Bonilla-Barraza that he would be transported to a hospital for some tests, and the interview ended.
Detective Bichel interviewed Bonilla-Bar-raza a third time on the afternoon of April 25, at the county jail. On this occasion, Bonilla-Barraza was wearing a special type of gown for inmates on suicide watch. Detective Bichel did not read Bonilla-Barraza his Miranda rights during the initial part of this interview. The following exchange occurred:
Detective Bichel: And like I said, you re- . member me from the other night when we spoke? And, um ... I respected you when you said you didn't want to talk to me. OK, so but on the same hand trying to treat you like a man, you know everyone.... Obviously my goal and my job is to find out what happened because I wasn't there. f
Bonilla-Barraza (via interpreter): Yes, I understand.
Detective Bichel: And one of ... you know, obviously there are different ways we try to figure out what happened based on evidence, based on talking to the kids.
Bonilla-Barraza: Yeah.
Detective Bichel: But I would like to do [sic] is get from you what actually happened. That way maybe I can make sense out of this whole situation. Does that make sense to you?
Bonilla-Barraza: Yeah.
Detective Bichel: Would you like to tell me what happened?
Bonilla-Barraza: OK.
Detective Bichel then read Miranda warnings to Bonilla-Barraza. At this time, Bonil-la2-Barraza told Detective Bichel that some attorneys had come to the jail to speak with him the previous day, and that he had "told them [he] wanted to talk with them because [he] was ready to tell the truth." Bonillas-Barraza stated that the attorneys had told him they should be present during questioning. He further stated that the attorneys had "told him they could be here within five minutes if he wanted to call them," and that he was "seared" to answer Detective Bichel's questions. Detective Bichel responded, "If you want them here that's fine or if you are comfortable sitting here talking with us it is not-ultimately it is not going to make a huge difference other than help me understand." Bonilla-Barraza then stated that, because Detective Bichel had "treated him really well," Bonilla-Barraza would "treat [Detective Bichel] really well," and agreed to answer the questions.
After signing a written waiver of his Miranda rights, Bonilla-Barraza gave a statement in which he gave incriminating details about his role in the death of his fiancée. Because this confession was only audiotaped, Detective Bichel arranged for Bonilla-Barra-za to be transported to the police operations center to give a videotaped interview. About an hour later, after receiving another Miranda advisement and signing a second Miranda waiver, Bonilla-Barraza gave a videotaped interview in which he again provided incriminating information.
On May 7, 2008, the prosecution charged Bonilla-Barraza with one count of first degree murder after deliberation (a class one felony under section 18-3-102(1)(a), C.R.S. (2008)); a crime of violence count (a sentence enhancer under section 18-1.3-406(2)(a)(D(B), CRS. (2008); and four counts of child abuse (a class two misde- . meanor under section 18-6-401(1), (7)(b)(D), C.R.S. (2008)).
After & preliminary hearing, the court bound over the case on all charges. Bonillas-Barraza entered a plea of not guilty, and the matter was set for trial, He then filed a motion to suppress the statements he made while in police custody. |
Following a hearing, the El Paso County District Court granted Bonilla-Barraza's suppression motion on December 19, 2008. [1094]*1094The court held that, while Bonflla-Barraza's Sixth Amendment right to counsel was not violated and his statements were voluntary, Bonilla-Barraza's Fifth Amendment rights to remain silent and to counsel during custodial interrogation were violated.
Upon the trial court's denial of the prosecution's motion for reconsideration, the prosecution filed this interlocutory appeal.
IL.
We hold, under the totality of the cireum-stances, that the police violated Bonilla-Bar-raza's constitutional right to remain silent by continuing to conduct custodial interrogation of him on three occasions after he had clearly invoked that right. Consequently, the statements Bonilla-Barraza made in those interrogations are inadmissible in this case.
A. Standard of Review
In suppression cases, which typically involve a mixed question of fact and law, we defer to the trial court's factual findings if competent evidence in the record supports them, and we review the court's ultimate legal conclusion de novo. People v. Arroya, 988 P.2d 1124, 1129 (Colo.1999).
B. The Right to Remain Silent during Custodial Interrogation
Before conducting a custodial interrogation of a suspect, police must inform the suspect "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); U.S. Const. amend. V. A suspect may cut off questioning at any time during a custodial interrogation by clearly articulating a wish to remain silent.4 Arroya, 988 P.2d at 1129-30; see also Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602. The suspect must specifically waive the right to remain silent for police to proceed with a custodial interrogation. Arroya, 988 P.2d at 1129-30; see also Miranda, 384 U.S. at 479, 86 S.Ct. 1602.
An interrogation is custodial when it is "initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444, 86 S.Ct. 1602. A suspect is "interrogated" for Miranda purposes
whenever the suspect "is subjected to either express questioning or its functional equivalent." Thus, interrogation includes "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."
People v. Madrid, 179 P.3d 1010, 1014 (Colo.2008) (quoting Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).
We conduct a totality of the circumstances inquiry to determine whether an officer interrogated a suspect. People v. Gonzales, 987 P.2d 239, 241 (Colo.1999). This inquiry focuses on whether the officer reasonably should have known that the officer's words or actions would cause the suspect to perceive that he or she was being interrogated, whether those words or actions were calculated to elicit incriminating statements, and whether in light of the interrogation environment the police compelled the incriminating statements. See id. at 241-42.
An " 'interrogation environment' cere-ated by the interplay of interrogation and custody [may] 'subjugate the individual to the will of his examiner' and thereby 'undermine the privilege against compulsory self-incrimination.'"5 Innis, 446 U.S. at 299, [1095]*1095100 S.Ct. 1682 (quoting Miranda, 384 U.S. at 457-58, 86 S.Ct. 1602). In conducting our inquiry into words and actions of the police, we consider a variety of factors, including the suspect's "harried emotional state," the nature of the charges, and the questioner's use of "relationship-building" efforts. People v. Wood, 135 P.3d 744, 751 (Colo.2006).
While Miranda established that the police must respect a suspect's expressed wish to remain silent, Miranda did not resolve what cireumstances, if any, permit a resumption of questioning. See People v. Quezada, 731 P.2d 730, 733 (Colo.1987). Miranda did not create a "per se proscription of indefinite duration" upon any further police questioning after a suspect invokes the right to remain silent. Michigan v. Mosley, 423 U.S. 96, 102-03, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Instead, as Mosley held:
A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means ... to notify the person of his right of silence and to assure that the exercise of the right will be seru-pulously honored...." The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Through the exercise of his option to terminate questioning he can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "serupu-lously honored."
Id. at 103-04, 96 S.Ct. 321 (quoting Miranda, 384 U.S. at 474, 479, 86 S.Ct. 1602). Thus, onee a suspect has clearly articulated the wish to remain silent, additional cireum-stances must justify resumption of questioning by the police. Arroya, 988 P.2d at 1135.
To determine whether the police "serupulously honored" a suspect's expressed wish to remain silent, we consider the particular cireumstances in which the police obtained the suspect's statement. Quezada, 731 P.2d at 733-34. We focus on four factors enumerated in Mosley: (1) whether the police immediately ceased the initial interrogation upon the suspect's request; (2) whether the police resumed questioning only after the passage of a significant period of time; (3) whether the police gave a fresh set of Miranda warnings prior to the second interrogation; and (4) whether the second interrogation was restricted to a crime that was not the subject of the 'first interrogation. Id. None of these factors is conclusive, and this list is not exhaustive.6 Id.
Each of the four Mosley factors is self-explanatory, with the exception of the second factor, for which the Mosley decision "did not suggest any talismanic durational minimum." United States v. Hsu, 852 F.2d 407, 410 (9th Cir.1988). Mosley held that police fully honored the suspect's right to remain silent where the first interviewer immediately ceased interrogation, a second interviewer resumed questioning after two hours, the second interviewer gave fresh Miranda warnings at the outset of the second interview, and the interviews addressed different crimes. 423 U.S. at 104-05, 96 S.Ct. 321.
Our case law has analyzed the second Mosley factor in terms of whether an interval is a "significant period of time." Quezada, 731 P.2d at 738-34. In Quezada, we held that police serupulously honored the suspect's rights where the first interviewer immediately ceased interrogation, a second interviewer (who did not. know of the first interview) [1096]*1096resumed questioning after forty-five minutes, the second interviewer gave fresh Mirando warnings prior to interrogation, and both interviews concerned the same crime. Id. at 734-36.
Courts generally decline to apply bright-line rules with respect to the second Mosley factor, preferring to conduct a comprehensive analysis of all factors. See, e.g., Hsu, 852 F.2d at 408, 412 (while a thirty-minute interval between questioning "might ordinarily incline [the court] toward a conclusion that [the] right to cut off questioning was not respected," other applicable factors demonstrated that officers serupulously honored the defendant's rights). In two cases, courts have held that the police did not scrupulously honor the right to remain silent where intervals of forty-five minutes and three hours occurred between questioning. See United States v. Hernandez, 574 F.2d 1362, 1369 (5th Cir.1978); United States v. Olof, 527 F.2d 752, 753 (9th Cir.1975). An interval of twenty-four hours is generally considered significant under Mosley.7 See, e.g., Jackson v. Wyrick, 730 F.2d 1177, 1180 (8th Cir.1984).
C. Application to this Case
Here, the issue is not whether Bonilla-Barraza was in police custody once police had transported him to the police operations centers.8 The prosecution also does not challenge the trial court's finding that Bonilla-Barraza clearly articulated his right to remain silent.9
. Instead, the prosecution argues that the police complied with Miranda and its progeny because Detective Bichel "asked only a few questions of defendant-none of which constituted '"interrogation'-after defendant invoked the right, and he did not interrogate defendant until defendant freely and voluntarily waived his right to remain silent." The prosecution further contends that Detective Bichel serupulously honored Bonilla-Barraza's right to remain silent during each interview.
1. Whether the Police Conducted Interrogations
We begin our analysis of this issue by briefly reviewing the relevant facts and cireumstances. On April 23, Bonilla-Barraza told Detective Bichel that he did not want to talk to him. Yet Detective Bichel asked Bonilla-Barraza twelve further questions about the children. On April 24, Bonilla-Barraza onee again said he did not want to tell Detective Bichel what happened. Detective Bichel asked, "Is there a reason why?" He further asked, "With you sitting here, have you come up with any questions for me?" Finally, on April 25, Detective Bichel voiced a desire to "find out what happened," and stated, "I would like to do [sic] is get from you what actually happened." He then asked, "Would you like to tell me what happened?" ~
Under the totality of the cireumstances, we agree with the trial court that Detective Bichel's interviews on April 28, April 24, and April 25 constituted interrogation after Bon-illa-Barraza had clearly invoked his right to remain silent. Several cireumstances set a relevant backdrop for understanding whether these interviews amounted to interrogation or its functional equivalent. The first two interviews that occurred on April 23 and April 24 took place in the middle of the night, shortly after the death of Bonilla-Barraza's fiancée, with whom he had a child. Bonilla-[1097]*1097Barraza was under investigation for the murder of his fiancée. See Wood, 185 P.3d at 751. He does not speak English, and spoke with Detective Bichel through an interpreter. After the first interview, police took photographs of Bonilla-Barraza's body and told him to change into a jail uniform, and they subsequently transported him from the ten-foot by ten-foot interview room to jail.
During the first interview, the children could be heard playing from within the interview room. During the third interview, which occurred on April 25, Bonilla-Barraza was dressed in clothing identifying him as a suicide risk. He told Detective Bichel that attorneys he had talked to told him they should be present during questioning, but Detective Bichel responded that it would not "make a huge difference" whether the attorneys were present. The factual cireum-stances of the three interviews demonstrate Bonilla-Barraza's "harried emotional state" in the context of the continued police questioning. See id.
Though Detective Bichel's questions on April 23 about Bonilla-Barraza's child and stepchildren were not overt attempts to extract a confession, the questions constituted interrogation, under the totality of the circumstances. Notably, the children were witnesses to events connected with a death in the household, and these express questions about the children might well 'have elicited incriminating information. While "interrogation" does not include words or actions of the police which are "normally attendant to arrest and custody," Innis, 446 U.S. at 301, 100 S.Ct. 1682, Detective Bichel's failure to ask about the children before providing a Miranda advisement, when he initially asked Bonilla-Barraza about personal identifying information, demonstrates that these questions were not part of a procedure "normally attendant to arrest and custody."10 If the police had needed further information about the names, ages, and paternity of the children to provide for their safety, and had not already learned this information when transporting the family to the police station, surely Detective Bichel could have asked such questions before the interrogation commenced.11 While exigent cireumstances might in some cases justify questioning a defendant about family members or children after police have asked a defendant questions "normally attendant to arrest and custody" and after a defendant has invoked his right to remain silent, such exigent circumstances were not present here. See Beagel v. State, 813 P.2d 699, 706 (Alaska App.1991) (explaining that where police interviewed suspect in her home immediately after alleged crime and she invoked her right to remain silent, subsequent question as to whether suspect had any children was designed to ensure there were no children who needed attention, not to elicit incriminating information).
Detective Bichel's question on April 24 about why Bonilla-Barraza did not wish to talk to him is a clear case of interrogation after the suspect had invoked his right to remain silent. Given his background and training, Detective Bichel knew there was a reasonable likelihood that Bonilla-Barraza would provide incriminating information in response to this question. A natural reason for a suspect not to want to talk to an officer is that the suspect does not want to share damaging information. Indeed, Bonilla-Bar-raza responded with a statement a jury probably would deem to be inculpatory: "No, because what happened is bad...." Another clear instance of interrogation occurred in the interview of April 25 when Detective Bichel asked Bonilla-Barraza "what happened" on the night of the victim's death.
2. Whether the Police Scrupulously Honored the Right to Remain Silent
The trial court found that Detective Bichel continued in the first interview to [1098]*1098question Bonilla-Barraza after Bonilla-Bar-raza clearly stated he did not wish to speak to Detective Bichel. Although the trial court recognized that these questions did not directly address the crime, the court found that Detective Bichel's conduct probably caused some doubt in Bonilla-Barraza's mind about his assertion of his right to remain silent. The court also found that Detective Bichel, in the second interview, continued questioning after Bonilla-Barraza stated he did not wish to talk. Citing the Mosley factors, the court concluded:
In this case, questioning continued on both occasions even though the Defendant stat-ted that he did not wish to speak with Detective Bichel. < When questioning resumed by Detective Bichel on the second occasion, Defendant was not re-advised of his rights. He was simply reminded that he had previously chosen not to speak with the Detective. Finally, the Detective made no effort to clarify or to discuss the Defendant's statement that he did not wish to speak any further. Based on the circumstances, the Court finds that the Defendant clearly invoked his right to remain silent and any statements by Defendant after that invocation must be suppressed.
We apply the Mosley analysis to determine whether the trial court correctly held that Bonilla-Barraza's right to remain silent was not serupulously honored. As the trial court found, Detective Bichel did not comply with the first Mosley factor because he did not immediately cease interrogation on April 23 when Bonilla-Barraza stated he wished to remain silent. Instead, Detective Bichel asked Bonilla-Barraza twelve questions about the children. The fact that these questions immediately followed Bonilla-Barraza's invocation of his right to remain silent provided an unmistakable signal that the police did not intend to honor Bonilla-Barraza's right. With respect to the second Mosley factor, the second interview took place about two and a half hours after the first interview, and the third interview occurred a day and a half later. In this case, the length of the first interval does not weigh strongly in either party's favor. Compare Mosley, 423 U.S. at 104-05, 96 S.Ct. 321 (two-hour interval occurred between questioning; suspect's rights were honored), with Hernandez, 574 F.2d at 1369 (forty-five minute interval occurred between questioning; suspect's rights were not honored). The interval between the second and third interviews, on the other hand, certainly was a "significant period of time." See, e.g., Jackson, 730 F.2d at 1180 (twenty-four hour interval occurred between questioning; suspect's rights were honored). Detective Bichel did not comply with the third Mosley factor, because he failed to re-advise Bonilla-Barraza of his Miranda rights at the outset of the second and third interviews. Lastly, all three interviews concerned the same alleged crime.
Analysis of the Mosley factors leads us to conclude that the police did not serupulously honor Bonilla-Barraza's right to remain silent during any of the three interviews. Detective Bichel failed to immediately cease interrogation during the first interview; he did not provide fresh Miranda warnings at the second interview or at the beginning of the third interview; and he questioned Bonil-la-Barraza about the same crime during all three interviews. Detective Bichel also cast doubt on the effect of Bonilla-Barraza's representation by an attorney: "ultimately it is not going to make a huge difference other than [to] help me understand." In effect, Detective Bichel told Bonilla-Barraza that the only reason to have an attorney is to help the police understand what he did to the victim.
3. Conclusion
This is not a case where a suspect volunteered incriminating information. Instead, Detective Bichel's words and actions demonstrated to Bonilla-Barraza that his effort to remain silent would not be respected. Although Bonilla-Barraza made a full confession to the police, this confession resulted from a calculated and persistent campaign by the interrogating detective to elicit such a confession despite Bonilla-Barraza's clearly expressed desire to remain silent. Under the totality of the cireumstances, we conclude that the police conducted custodial interrogation to obtain the confession. Gonzales, 987 P.2d at 241-42. We further conclude that the police did not serupulously honor Bonil-[1099]*1099la-Barraza's expressed desire to remain silent. Mosley, 428 U.S. at 103-04, 96 S.Ct. 321; Quezada, 731 P.2d at 733-34. Thus, in its case-in-chief, the prosecution may not use statements Bonilla-Barraza made under custodial interrogation after invoking his constitutional right to remain silent.
HL.
Accordingly, we affirm the trial court's suppression order and return the case for further proceedings.
Justice EID concurs in the judgment, and Justice COATS joins in the concurrence.