dissenting.
I.
I respectfully dissent. To begin, I disagree with the district court’s disposition of Gregory’s motion to suppress his confession.
The factual findings in the present case establish that Myers and Clark planned ahead of time to induce Gregory to come to the police station voluntarily because Myers purportedly wanted a handwriting sample for her forgery investigation. However- — as the magistrate judge specifically found — it was further planned that Clark would use the opportunity to question Gregory about the bank burglary. See Mag. Rep. at 2-3 (“Clark and Myers designed a plan whereby Myers would ask Gregory Syslo to come to the LPD station to give a handwriting exemplar in connection with the forgery investigation while Clark executed a warrant to search the Syslos’ residence and he then would question Gregory in connection with the burglary investigation.”) (emphasis added). While Myers may have informed Gregory that he might be questioned about the forgery matter, she never indicated that he would be interrogated about the bank burglary, as the two officers had planned all along. See id. at 3 (“In accordance with the plan, Myers called Gregory and scheduled a meeting for October 31, 2000. Because of a work-related problem, Gregory called Myers and rescheduled the meeting to 10:30 a.m. the following day. Myers did not inform Gregory during either of these two contacts that he would also be questioned about the July Ith burglary of the NBC Bank") (emphasis added). If this were all that had happened, I would not disagree with the district court’s disposition of Gregory’s case. See Colorado v. Spring, 479 U.S. at 576, 107 S.Ct. 851 (“This Court has never held that mere silence by law enforcement officials as to the subject matter of an interrogation is ‘trickery’ sufficient to invalidate a suspect’s waiver of Miranda rights.”). However, after Myers read Gregory his Miranda rights, and while Gregory was looking over *869the waiver of rights form, Gregory “asked Myers whether he needed an attorney for a handwriting exemplar. Myers responded ‘No, ’ and stated that reading a person’s rights in this situation was ‘just a formality.’ ” 5 Mag. Rep. at 4 (emphasis added). Gregory then signed the waiver of rights form which is now being used to uphold Gregory’s confession to the bank burglary.
In light of the magistrate judge’s specific findings that Myers indicated to Gregory that he did not need an attorney, and that she told him the Miranda warning was “just a formality,” this case is clearly distinguishable from Colorado v. Spring, 479 U.S. at 577, 107 S.Ct. 851, and McKee v. Nix, 995 F.2d at 837-38, upon which the district court and the majority rely. Indeed, in Colorado v. Spring, 479 U.S. at 576 n. 8, 107 S.Ct. 851, the Supreme Court observed that, in some circumstances, “affirmative misrepresentations by the police [may be] sufficient to invalidate a suspect’s waiver of the Fifth Amendment privilege.”6 I believe this is just such a circumstance. The Miranda warning, especially in this case, was not “just a formality,” and Myers knew it. The very objective of the bait-and-switch plan she had hatched with Clark was to use this opportunity to extract a confession from Gregory to the bank burglary. Yet Myers deliberately suggested that self-incrimination was not a cause for concern, on the premise that he was only there in connection with her forgery investigation. By saying that the Miranda warning was “just a formality,” she indicated to him that invoking his right to remain silent and his right to an attorney would not make a difference, knowing full well that it would make an enormous difference because he was about to be interrogated about the bank burglary. Myers did not remain *870merely silent about the subject matter of the interrogation, she made affirmative misrepresentations and obtained Gregory’s waiver of rights by deception.
In neither Colorado v. Spring nor McKee v. Nix did the law enforcement officers indicate to the suspect that an attorney was not needed or tell the suspect that the Miranda warning was “just a formality,” or make a similar misrepresentation. In neither case did they deliberately lead the suspect to believe that the waiver of rights was for a limited purpose, and then rely upon it for a different purpose. Colorado v. Spring and McKee v. Nix stand for the related, yet materially different, proposition that, once a waiver of rights has been validly and generally executed, it may continue in effect even though the topic of the interrogation may change without warning to the suspect.
Nor is the majority’s decision justified by Russell v. Jones, 886 F.2d at 151, cited in the majority opinion. In Russell v. Jones, an action brought pursuant to 28 U.S.C. § 2254, this court noted that, notwithstanding the petitioner’s claim that the police had told him he “had to” sign a Miranda waiver and confession, “there were no findings of police misbehavior,” and the record did not support a finding that the police had engaged in any improper actions. Id. In the case at bar, by contrast, the magistrate judge specifically found that Myers said “No” when Gregory asked if he needed an attorney and told Gregory that the Miranda warning was “just a formality,” which — as I have explained' — was clearly improper under the totality of the circumstances. Myers should have either refrained from making the affirmative misrepresentations or, at the time she introduced Clark to Gregory for purposes of initiating Clark’s interrogation regarding the bank burglary, administered a new Miranda warning.7
For the reasons stated, I would hold, upon de novo review, that Gregory’s waiver of rights and confession, vis-a-vis the bank burglary, were not voluntary under the totality of the circumstances. Accordingly, I would remand Gregory’s case to the district court with instructions to suppress his confession.
II.
I also disagree with the district court’s disposition of Denell’s motion to suppress her statement. While the district court did conclude that Hruza’s tactics became unduly coercive during the course of the interrogation (a finding with which I do agree), the district court did not find the circumstances to be sufficiently coercive to overcome Denell’s will until well into Hru-za’s interrogation of Denell. I would hold that Denell’s will was overborne at an earlier point in time.
In determining that Denell’s statement should be suppressed starting on page 33, fine 1703, of the 41-page transcript (Govt.Exh. 11), the district court reasoned as follows.
Denell Syslo was placed in a police dominated atmosphere and expressly threatened that, unless she “told the truth,” she would not be allowed to leave the station with her children. Denell was confronted by several officers in her home and was taken to the police station in a police vehicle after .one officer helped her dress the children for the trip. The hearing testimony reflects that the Syslo children were upset upon arriving at the police station and had to be comforted for a period of time before *871they were left in the officers’ lounge under the supervision of a member of the victim witness unit. The fact that Denell Syslo was aware that her three-year-old son was upset by the day’s events is reflected in Exhibit 5. After her children were placed in a nearby room with a stranger, Denell was not allowed to contact a relative to come and retrieve the children. Denell was also asked to write two notes to her husband, both of which were designed to convey to him the fact that the children were being held at the police station along with her. Although there is evidence that Mrs. Syslo is educated, there is no indication that she has had any previous exposure to police interrogation. The latter pages of the transcript of Denell Syslo’s statement present a dialogue between a distressed mother who wanted to leave the police station with her children and a police officer who repeatedly played upon this distress by making threats. I find that the government has failed to establish that the portion of Denell’s statement beginning at page 33, line 1703, and continuing through its conclusion was not obtained through coercive tactics that overbore the will of Mrs. Syslo, and therefore that portion of the statement must be suppressed.
Dist. Ct. Order at 5 (citation omitted).
As the district court recognized, Denell was brought to the police station with her two very young children, whom she obviously could not leave at home alone. While en route to the station, Hruza informed Denell that she was not free to leave. Mag. Rep. at 3-4 (“On their way to the station Denell asked whether she was under arrest. Hruza responded she was not under arrest, but explained that she was under investigative detention and could not leave.”) (emphasis added). When they arrived at the police station, the children were upset and it took some time for Denell to calm them down before they could be left in a room with a volunteer caretaker. Although efforts were made to contact Denell’s mother-in-law, the children were not to be removed from the police station. ■ See Dist. Ct. Order at 5 (“In the present case, not only were express threats made to Denell Sys-lo concerning her children, but there is no evidence of any legitimate purpose supporting the children’s detention at the police station when Denell sought to have her mother-in-law remove them prior to the interrogation.”). Indeed, the district court concluded that the children were kept at the police station for the very purpose of coercing Denell into confessing. See id. (“[I]t seems to me that the children were kept at the station in order to assist the officers in coercing a confession from Denell Syslo.”); id. at 2-3 (“The notion that the children were being kept at the police station in order to assist the police in coercing a statement from Denell is supported by Investigator Hruza’s testimony that, although Denell Syslo’s mother-in-law was to be contacted on Denell’s behalf and informed that De-nell, Gregory, and the children were all at the police station, it was not a part of this arrangement to allow the mother-in-law to take the children from the station as Denell desired.”). Denell was given no other option but to leave her distraught three-year-old and eleven-month-old baby in an unfamiliar place, out of her sight, with a complete stranger.
Under these circumstances, Hruza proceeded to take Denell into a separate interview room, where she began questioning Denell, “repeatedly play[ing] upon [Denell’s] distress by making threats.” Id. at 5. Hruza’s “threats” (as the district court described them) presented Denell with a Hobson’s choice: incriminate yourself and go home with your children or refuse to incriminate yourself and immediately go to jail, leaving them to suffer the *872consequences. The loud and clear message continued to be that confessing was the only way for Denell to ensure a reunion with her children.
The following was the first tape recorded, 8 threat made by Hruza:
DENELL SYSLO: I had my doubt I mean I didn’t know for sure he [Gregory] didn’t tell me flat out but you know I didn’t lie to you I had my doubts but he never came flat out and told me. He just, he danced around it like I told you well what if I did ah you know I’m not gonna lie to you I doubted.
INV. HRUZA: Okay
DENELL SYSLO: I wondered
INV. HRUZA: Well as long as you don’t lie you’re not going to jail. If you lie they might decide that there’s reason to take you to jail that you would not stick around or something. DENELL SYSLO: If I didn’t have my children to worry about I might lie to you thinking that I was gonna save my butt but if Greg goes away somebody has to be there with my kids and they’re my kids.
INV. HRUZA: I guess you know you’d prefer to have you there.
Transcript (Govt.Exh. 11) at page 14, line 735, through page 15, line 752 (emphasis added).
As the interview proceeded, Hruza became increasingly forthright in making her threats, as the following examples illustrate. “[Y]ou know right now you’re sitting on the line whether you go to jail or you walk out of here with your kids?” Id. at 33, lines 1704-05. “You know I don’t wanna take you away from your kids and put you in jail okay but I need you to be truthful and not hold back from me anymore.” Id. at 34, lines 1797-99. “[Y]ou tell the truth I’m not gonna take you to jail. You may get a ticket, you are probably going to get a ticket, okay but I won’t take you to jail. If you lie to me and keep lying to me you are most likely going to go to jail.” Id. at 36, lines 1880-83. Finally, “You can go over there and sit in the jail with him or you can go home with your kids.” Id. at 37, lines 1946^47.
In my opinion, there is no material difference between Hruza’s statement found on page 14 of the transcript (Govt.Exh. 11), and the later statements beginning on page 33. The mere fact that Hruza did not herself expressly mention the children in the earlier statement is inconsequential because Hruza was explicitly threatening Denell with immediate detention in jail. Hruza of course knew that Denell was thinking about the effect her detention would have on the children, and Hruza was obviously insinuating that Denell would not be there to take care of them.9 I believe it was clear error for the district court not to find that Hruza was implicitly threatening Denell and was, by that point in time, overbearing Denell’s will and critically impairing her capacity for self-determination. See United States v. Pierce, 152 F.3d 808, 812 (8th Cir.1998) (“In considering whether a confession was voluntary, the determinative question is whether the confession was extracted by threats, violence, or promises (express or implied), such that the defendant’s will was overborne and his or her capacity for self-determination was critically impaired. In making this deter-*873urination, courts look at the totality of the circumstances, including the conduct of the law enforcement officials and the defendant’s capacity to resist pressure.”) (emphasis added) (citations omitted).
Finally, in an effort to justify Hruza’s repeated threats, the government argues that they were not coercive because they were mere expressions of what Hruza genuinely believed to be true.10 However, testimony from the suppression hearing belies that assertion. Detective Myers testified that she was the one who obtained approval from the county attorney for De-nell’s release, and the issue of Denell’s truthfulness never came up in her conversation with the county attorney about whether or not Denell should be released. By contrast, the problem of having to place the children in foster care if Denell were held in jail did come up as a reason in favor of releasing her, without any mention of Denell’s truthfulness or any other condition.11 This evidence demonstrates that there was no factual basis for Hruza’s repeated threats to Denell. Nevertheless, from the time Hruza told Denell that she was not free to leave until the time Denell was finally released with her children about two and a half hours later, the officers continued to convey to Denell, through their actions and their words, that she had to confess if she wanted to go home with her children. Indeed, as the district court concluded, the very purpose of detaining the children at the police station for the duration of Denell’s interrogation, rather than allowing them to be picked up by their grandmother, was “to assist the officers in coercing a confession from Denell Syslo.” Dist. Ct. Order at 5.
I would hold, upon de novo review, that most, if not all, of Denell’s tape-recorded statement was the product of an overborne will and, therefore, was not provided voluntarily under the totality of the circumstances. I would reverse the district court’s denial of her motion to suppress as to the first 32 pages of the 41-page transcript (Govt.Exh. 11), and I would remand Denell’s case to the district court with instructions to suppress the statement starting at least at page 14, line 744, of the transcript.
. After quoting the very same language from the magistrate judge’s report in the majority opinion, the majority points out in a footnote that Myers denied telling Gregory that he did not need an attorney and denied saying that the Miranda warning was "just a formality.” See supra at n. 3. The majority then makes the rather confusing comment that: "The fact that the magistrate judge did not allude to the officer’s conflicting testimony does not necessarily mean he rejected it.” Id. (citing Dist. Ct. Order at 2). The magistrate judge’s factual findings speak for themselves, and, to the extent they were adopted by the district court, see Dist. Ct. Order at 1, 5, 7 (adopting the magistrate judge’s report and recommendation "in all. respects as it relates to Gregory Syslo”), they must be accepted as true on appeal absent clear error. We have never required a lower court to expressly reject contrary evidence in order for its factual findings to be afforded the appropriate deference under the clear error standard. Moreover, the portion of the district court's order which the majority cites in note 3, supra, as supporting authority (“Cf. Dist. Ct. Order at 2”) comes from a part of the district court's order where the district court is making independent findings of fact concerning Denell’s motion to suppress.
. Footnote 8 of the Supreme Court's Spring opinion states in full:
In certain circumstances, the Court has found affirmative misrepresentations by the police sufficient to invalidate a suspect’s waiver of the Fifth Amendment privilege. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963) (misrepresentation by police officers that a suspect would be deprived of state financial aid for her dependent child if she failed to cooperate with authorities rendered the subsequent confession involuntary); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959) (misrepresentation by the suspect’s friend that the friend would lose his job as a police officer if the suspect failed to cooperate rendered his statement involuntary). In this case, we are not confronted with an affirmative misrepresentation by law enforcement officials as to the scope of the interrogation and do not reach the question whether a waiver of Miranda rights would be valid in such a circumstance.
479 U.S. at 576 n. 8, 107 S.Ct. 851.
. Not only did Myers introduce Clark to Gregory and inform Gregory that Clark would be questioning him about the bank burglary, she stayed for the first five to ten minutes of the interrogation. See Mag. Rep. at 4-5.
. Hruza admitted that, although she obtained the tape recorder before the interview began, she did not start the tape recorder right away. Hearing Tr. at 113, lines 7-12.
. Indeed, although we cannot know exactly what transpired between Hruza and Denell beforehand, because Hruza did not tape record the beginning of the interrogation, see supra note 8, the dialogue suggests to me that they had previously discussed the uncertain fate of the children.
. The -government argues: “Officer Hruza understood that if Denell Syslo provided false information to the police this might be a factor taken into consideration in determining whether Denell could at that time be released or logged in jail, and she so informed Denell.” Brief for Appellee at 13 (emphasis in original).
. Upon questioning by the magistrate judge at the suppression hearing, Myers testified as follows:
THE COURT: Did [the county attorney] ever condition the decision to release De-nell Syslo on her satisfying you that she was telling the truth?
[MYERS]: I don't think I ever even brought that up. I told him that — or I asked him, I said, do you have a problem if we cite and release Denell for a felony and have her show up for arraignment tomorrow since she's got her kids down here? Then we don't have to find a place for them. And he said, no, I don’t have a problem with it if you’re comfortable with it. I don't think we ever went into any conditions or anything like that.
[MYERS]: And this is something that we— we have done with the county attorney in the past. We've cited and released on felonies before.
Hearing Tr. at 140, line 12, to 141, line 4.