This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,





Jose Antonio Behena-Vargas,




Filed ­­June 15, 2004

Reversed and remanded

Harten, Judge


Nobles County District Court

File No. K4-03-526



Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and


Gordon L. Moore, III, Nobles County Attorney, John D. Gross, Assistant County Attorney, 1530 Airport Road, Suite 400, Worthington, MN 56187 (for appellant)


Mary M. McMahon, McMahon & Associates Criminal Defense, Ltd., 2499 Rice Street, Suite 140, Roseville, MN 55113 (for respondent)


            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N



            The state challenges a pretrial order suppressing evidence derived from respondent’s oral statement to local law enforcement.  The state argues that, even if an immigration agent was required to give a Miranda warning before asking respondent his true name, a subsequent statement to local law enforcement preceded by a Miranda warning was not tainted by the agent’s earlier interview.  Because a sufficient break in the stream of conduct separates the two interviews, we reverse and remand.


            Respondent Jose Antonia Behena-Vargas was arrested in Nobles County for driving while impaired (DWI) on Friday, 20 June 2003.  He identified himself as Luis Rodriguez-Rodriguez, born 30 July 1970 in Mexico.  He was then jailed in the Nobles County jail.

On Monday, 23 June 2003, respondent was interviewed by telephone at the jail by an agent of the Immigration and Naturalization Service (INS) (now the Bureau of Immigration and Customs Enforcement).  Respondent testified that the agent did not give a Miranda warning before the interview and that, when the agent asked respondent for his real name, the agent exhorted him to tell the truth: “He said that if I did not tell the truth that it was going to be bad for me so I did tell him my – my name.”

Respondent testified that the INS agent told him

 “they were going to come back later to take my fingerprints and they were going to check with the FBI, and they also said that if I did not have any – any problems there and if I would say my voluntary deportation, I would be sent – I would be deported right away.”[1]


  After the interview, the INS agent notified the jail of respondent’s real name, and his police booking information was supplemented.

Because two different names appeared in respondent’s booking file, Worthington Police Detective Kevin Flynn was assigned to investigate.  Having been informed that respondent was identified by his real name in an interview by an INS agent, Flynn received a copy of a detainer from respondent’s booking record.  On 24 June 2003, Flynn read a Miranda warning to respondent.  After respondent waived his Miranda rights, Flynn questioned him.  Respondent told Flynn that he began using the alias Luis Rodriguez-Rodriguez when he entered the United States in 1990 and procured documents with that name to gain employment.  Respondent confirmed that his true identity is Jose Antonio Behena-Vargas, born in Mexico on 13 June 1979.  Following the interview, Flynn obtained and executed a search warrant and collected information from respondent’s employment personnel files.

Respondent was subsequently charged with aggravated forgery and perjury.  Respondent moved to suppress all evidence resulting from Flynn’s investigation.  After an omnibus hearing, the district court granted the motion and dismissed the charges, finding that law enforcement would not have known that Luis Rodriguez-Rodriguez was not respondent’s true identity but for the information obtained by the INS agent.  The state now challenges the suppression order.


When reviewing a pre-trial suppression order based on undisputed facts, an appellate court may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing the evidence.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  When the state appeals pretrial suppression orders, it “must ‘clearly and unequivocally’ show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.”  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1988) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  Because the district court dismissed all charges against respondent after the evidence was suppressed, the critical impact requirement is met.

            The issue before us is whether the district court erred in suppressing the evidence that was discovered using appellant’s true name.  The state argues that even if the INS agent should have read a Miranda warning to respondent before the interview, respondent’s subsequent statement to Flynn was not tainted and should not have been suppressed.  For purposes of this decision, we assume, without deciding, that the INS agent was required to give a Miranda warning prior to the interview.

Under the “fruit of the poisonous tree” doctrine, evidence that is obtained by the exploitation of illegal actions by law enforcement must be suppressed.  Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417 (1963).  But the failure to give a Miranda warning before an initial interrogation does not automatically render inadmissible any subsequent statement made after a Miranda warning is given.  Scott, 584 N.W.2d at 419 (citing Oregon v. Elstad, 470 U.S. 298, 309, 105 S. Ct. 1285, 1293 (1985)).

[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion.  A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.

Elstad, 470 U.S. at 314, 105 S. Ct. at 1296.

For a statement obtained during custodial interrogation to be admissible, the state must prove by a preponderance of the evidence that the accused’s waiver of the right against self-incrimination was knowing, intelligent, and voluntary.  State v. Williams, 535 N.W.2d 277, 286 (Minn. 1995).  When deciding whether a statement was voluntary, courts must consider the totality of the circumstances, including factors that focus on the defendant and the interrogation process.   State v. Ritt, 599 N.W.2d 802, 808 (Minn. 1999).  The relevant factors include the suspect’s age, maturity, intelligence, education, experience, and ability to comprehend; the lack of or adequacy of a warning; the nature of the interrogation; and whether the defendant was deprived of physical needs or denied access to friends and family.  State v. Wilkens, 671 N.W.2d 752, 756 (Minn. App. 2003).

At the time of the INS agent’s interview, respondent was at least 24 years old, and there is no evidence that he was deprived of any physical needs or denied access to friends or family.  But there is also no evidence of his maturity, intelligence, or education.  Because respondent’s ability to comprehend English was somewhat limited, an interpreter assisted him during his statement to Flynn and when he testified at the omnibus hearing; the record does not indicate whether an interpreter was used during the INS agent’s interview.  Respondent also testified that the INS agent said that something “bad” would happen if respondent did not divulge his true identity.  Viewing the totality of the circumstances, we assume, without deciding, that the state failed to meet its burden because at least some coercion was involved in the INS agent’s interview.

            When an initial unwarned statement is coerced, the admissibility of a subsequent statement depends on: (1) the amount of time between the statements, (2) any change in location, and (3) any change in the interrogators.  Elstad, 470 U.S. at 310, 105 S. Ct. at 1293.

[W]here a suspect is apprehended under coercive circumstances, is subjected to lengthy custodial interrogation before being given a Miranda warning, does not have the benefit of a significant pause in the interrogation after the Miranda warning is given, and essentially repeats the same inculpatory statements after the Miranda warning as before, the statements made after the Miranda warning are inadmissible.

State v. Bailey, 677 N.W.2d 380, 392 (Minn. 2004).  But where there is a break in the stream of conduct, the administration of a Miranda warning allows the suspect’s decision of whether to remain silent to “ordinarily be viewed as an act of free will.”  Elstad, 470 U.S. at 311, 105 S. Ct. at 1294 (quotation omitted).

In Bailey, the suspect was interrogated at length while being transported to the police station.  Bailey, 677 N.W.2d at 386.  At the station, the officers questioned the suspect before the officers read a Miranda warning; the same officers continued the interrogation immediately after the warning was read.  Id.  Here, the INS agent interviewed respondent on 23 June 2003 and Flynn interrogated respondent the next day.  Both statements were taken while respondent was in jail, but the INS agent’s interview was via telephone, and Flynn questioned respondent in person.  Neither the INS agent nor Flynn was present at both interviews.  Respondent never claimed that he did not voluntarily waive his rights before answering Flynn’s questions.  Moreover, application of the Wilkens factors for determining whether a statement is voluntary reveals that respondent gave the statement with the assistance of an interpreter, Flynn read a Miranda warning, respondent duly waived his Miranda rights, and there is no evidence of coercive interrogation.  See Wilkens, 671 N.W.2d at 756 (factors include age, maturity, intelligence, education, experience, ability to comprehend, the lack of or adequacy of a warning, the nature of the interrogation, and whether the defendant was deprived of physical needs or denied access to friends and family).  Finally, at least a day had passed since the INS interview.  Because the factors reveal a significant break in the stream of conduct, we conclude that respondent’s statement to Flynn after the Miranda warning is admissible.

Accordingly, we reverse the district court’s order suppressing the evidence obtained as a result of the statement to Flynn and remand the case for further proceedings.[2]

Reversed and remanded.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Respondent testified that he signed his deportation authorization.


[2] The state also argues that the district court erred by applying the doctrine of stare decisis to rely on a district court opinion.  Because we reverse and remand the district court’s order, we need not address that issue.