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Texas Court of Criminal Appeals: Police Deception That Statements Wouldn’t Be Used Against Defendant Requires Suppression

by Anthony W. Accurso

The Court of Criminal Appeals of Texas upheld the decision of a lower court to suppress a defendant’s surreptitiously recorded statements on the ground that it was not properly “warned and waived” under Texas law.

Erlinda Lujan was arrested by El Paso police in connection with the murder of Anthony “Lazy” Trejo. Detectives Joe Ochoa and David Camacho began interrogating Lujan in an interview room at the police station, and the interrogation began with the detectives reading her the required warnings under Texas law. Ochoa advised Lujan that she was under arrest and that “this is a formal interview.” She acknowledged her rights, waived them, and began talking about what she knew of Trejo’s killing.

Lujan confessed to being coerced into participating in the murder and that the murderers and her caravanned to a dirt road to dispose of Trejo’s body. The detectives insisted that she show them where the body was, but Lujan was reluctant to do so and wanted to simply tell them where the body was located. She eventually agreed to show them, and as they exited the interrogation room, Ochoa told her that “when we come back, we can continue, if you like, okay?” They went to a vehicle where Lujan entered first, and before Camacho entered, he activated a recording device without notifying her. At no time while they were in the vehicle did either detective provide any warnings or tell her about the recording device.

During the three-hour car ride, Lujan implicated herself in a wide variety of criminal activity, including Trejo’s murder, kidnappings, drug use and smuggling, prostitution, and the “tweaker” lifestyle. Upon returning to the police station, she was brought into the interrogation room again where she was provided the required warnings, notified that she was being recorded, and questioned about the activities she had spoken about during the car ride.

The trial court ruled that Lujan was misled into thinking that her statements made during the car ride wouldn’t be used against her and that she didn’t waive her rights with respect to her in-car statements. The court of appeals affirmed, and the State appealed.

The Court noted that Tex. Code Crim. P. Article 38.22 Section 3(a)(2) prohibits the use of an oral statement made during a custodial interrogation unless the defendant is (1) properly warned of his rights prior to making any statements and (2) the defendant knowingly, intelligently, and voluntarily waived those rights. The Court stated that the “required order is to warn first, waive second, and confess third, and these three things ‘must appear in the recording itself.’” Joseph v. State, 309 S.W.3d 20 (Tex. Crim. App. 2010). The State must prove by a preponderance of the evidence that the waiver was knowing, intelligent, and voluntary. Id. Only statements that were “warned and waived” are admissible in evidence. Oursbourn v. State, 259 S.W.3d 159 (Tex. Crim. App. 2008).

A valid waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception” and must be made with full knowledge of both the nature of the rights being abandoned and the consequences thereof. Berghuis v. Thompkins, 560 U.S. 370 (2010). Courts evaluate a waiver by the totality of the circumstance. Joseph. The State must prove that the defendant
“[w]as aware of the State’s intention to use his statements to secure a conviction.” Moran v. Burbine, 475 U.S. 412 (1986).

The totality of the circumstances inquiry includes police overreach and broad investigation into the state of mind of the defendant that aren’t relevant to due process claims. See Article 38.22; Oursbourn. A waiver of rights that is obtained by deception is not voluntary. See Leza v. State, 351 S.W.3d 344 (Tex. Crim. App. 2011).

Turning to the present case, the Court agreed with the trial court’s determination that Lujan was deceived into believing that her in-car statements wouldn’t be used against her; thus, she didn’t waive her rights with respect to those statements, the Court concluded. The Court based its conclusion on “(a) the differences between the in-room statements and the in-car statement, (b) the detectives’ insistence on taking the car ride, (c) Ochoa’s parting comment on the way to the car, and (d) the car ride itself with its ostensible body-finding purpose.”

First, the Court compared the formal interrogations to the in-car recording. Both recordings in the interrogation room were “formal, cautious, warned, and conspicuously recorded.” This was in contrast to the in-car recording, which the Court characterized as “unceremonious and indecorous, made no reference to Article 38.22 warnings, and was recorded surreptitiously.”

Second, the Court found that Lujan only reluctantly agreed to the trip, and that “she expressed fearfulness” about it. That detectives pressured her into it shows they may have had an ulterior motive for changing the forum of the interrogation, the Court reasoned.

Third, despite the State’s position, the in-car recording was not a mere extension of the first interrogation, according to the Court. Not only did the scenery change, but Ochoa formally ended the first recording by saying, “when we come back, we can continue if you like.” This implied that the interrogation only takes place in the formal room and would not occur during the car ride, the Court stated. It agreed with the trial court’s assessment that “the ostensible goal of the car ride—to look for the body—disguised the confessional aspect of the trip.”

The Court concluded that the totality of the circumstances led Lujan to believe that her in-car statements would not be used against her. Thus, the Court ruled that her in-car statements are not admissible because she did not knowingly waive her rights regarding those statements.

Accordingly, the Court affirmed the court of appeals’ ruling upholding the suppression of Lujan’s in-car statements. See: State v. Lujan, 634 S.W.3d 862 (Tex. Crim. App.). 

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Related legal cases

State v. Lujan

Leza v. State



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