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State, 650 S.W.2d 843, 850 (Tex. App—Houston[14th Dist.] 1982), aff’d, 650 S.W.2d 793 (Tex. Crim. App. 1983) (“[It is]
impossible for [a] magistrate to be fully convinced that [a child] understood the nature and extent of the statement if
there is not an examination or inquiry”). Moreover, F.L. never signed the card and never verbally acknowledged that
he understood his rights.
Notwithstanding the Supreme Court’s reminder in Berghuis v. Thompkins that Miranda does not invariably require an
express waiver of the right to silence or the right to counsel, 130 S. Ct. 2250 (2010), the prosecution bears a substantial
burden in establishing an implied waiver. Butler, 441 U.S. at 373; Tague v. Louisiana, 444 U.S. 469, 470-71 (1980);
Michael C., 442 U.S. at 724. “A valid waiver will not be presumed simply . . . from the fact that a confession was in fact
eventually obtained.” Miranda, 384 U.S. at 475; Butler, 441 U.S. at 373. It is difficult in any case and even more difficult
in a juvenile case for the government to show that the client has made a valid waiver without the signature on the
Miranda waiver card or any other verbal acknowledgment that the client understood his or her rights. Cf. Butler, 441
U.S. at 371 (defendant acknowledged receipt of his rights and willingness to talk when he stated “I will talk to you, but
I am not signing any form”). Given the totality of the circumstances in the present case, the government cannot meet
its burden to show that F.L knowingly, intelligently, and voluntarily waived his Miranda rights prior to custodial
interrogation, and all alleged statements made at the police station must be suppressed.
XII.
Subsequent Miranda does not cure previous violations
In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court examined the “question first” technique often
used by police officers. Under this practice, an officer first elicits a confession from a suspect without first advising
the suspect of his Miranda warnings. Id.at 604. Such a confession would be inadmissible. After eliciting this
preliminary confession, however, the officer follows with “mid-stream” Miranda warnings. Id. The officer then covers
the same type of questioning, hoping that the suspect will speak freely, now that the suspect has already made
incriminating admissions. The Court found that the “question first” interrogation technique used in Seibert was
unconstitutional, because such an interrogation technique “is designed to circumvent Miranda v. Arizona.” Id. at 618
(Kennedy, J. concurring). A statement made after mid-stream warnings is thus inadmissible.
The police violated the rule enunciated in Seibert in this case. First, as stated above, a School Resource Officer
subjected F.L. to un-Mirandized custodial interrogation during his initial detention in the school gym and again inside
the principal’s office. Only after F.L.’s alleged confession at the school was he formally arrested and transported to the
police station for processing. Once F.L arrived at the police station it was then that an officer administered the
Mirandawarnings. Immediately after warnings were given, the officer resumed questioning. The officer indicated to
F.L. that he was going to ask him the “same questions” as the resource officer. As in Seibert, this use of a pre-warning