Age is Proper Factor in Miranda Custody Analysis

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


One thing you can depend upon, any time the U.S. Supreme is presented with an issue that involves extending or protecting the interests of a criminal “suspect,” Justices Scalia, Thomas and Alito will be opposed to it. And at first impression, most people will say, “heck, there’s nothing wrong with that—criminals shouldn’t have rights or interests.” But what if that criminal suspect was their 13-year-old son? Would they be so inclined to accept that the police could question and secure a confession from him without their being present? Didn’t think so!


Well, that’s precisely the question the Supreme Court addressed recently in J.D.B. v. North Carolina. In September 2005 two homes were broken into in Chapel Hill, North Carolina, and some jewelry and a digital camera were taken during the break-ins. Because J.D.B. was seen behind a residence in the neighborhood where the home break-ins occurred, the local police deemed that sufficient probable cause to stop and question the 13-year-old about the crimes. The cops were so convinced that they were on the right scent they spoke to J.D.B’s grandmother, the kid’s legal guardian, and his aunt that same day. J.D.B. was in the seventh grade at the time and attending “special education classes,” according to the North Carolina Supreme Court.


A few days later someone “informed” the police that a digital camera matching the description of one stolen during the house break-ins had been found at Chapel Hill’s South Middle School and that J.D.B. had been seen with a digital camera at the school—and the camera was ultimately shown to be one of the items taken from the two house break-ins. Joseph DiCostanzo, an investigator with the Chapel Hill Police Department who had been assigned to investigate the two break-ins, went to the school to “question” (or “interrogate”) J.D.B. about the crimes. It marked the second time within a week that the local police questioned the juvenile suspect.


Once he got to South Middle School, DiCostanzo told the assistant principal, an administrative intern, and a uniformed police officer “on detail” at the school that he wanted to question J.D.B. about the break-ins. The juvenile detective had school officials verify J.D.B.’s date of birth, his address, and parental contact information in his school records. Neither DiCostanzo nor school administrators contacted J.D.B.’s grandmother to inform her about the detective’s impending interrogation.



DiCostanzo then sent the uniformed cop to J.D.B.’s afternoon social studies class with instructions to remove him from the classroom and escort him to a school “conference room.” J.D.B. was led into the conference room with the doors closed behind him. There the 13-year-old faced DiCostanzo, the uniformed cop, and two school administrators and was subjected to an interrogation for the next 30 to 45 minutes. J.D.B. was not given a “Miranda warning” (here and here), he was not provided with an opportunity to call his grandmother, and he was not informed that he was free to leave the room without answering any questions.


At the outset J.D.B. denied any involvement in the break-ins, telling his interrogators that he been in the neighborhood where the break-ins occurred looking for lawn mowing work. Not satisfied, DiContanzo intensified the interrogation while school officials urged the kid to “do the right thing,” warning the juvenile that “the truth always comes out in the end.” J.D.B. started to succumb to the pressure, asking those present if he would “still be in trouble” if he returned the “stuff” taken during the break-ins. Following standard police protocol, DiContanzo told the juvenile suspect that those actions would be helpful, but the matter was “going to court” regardless. The detective added that he might have to “seek a secure custody order” if he believed J.D.B. posed a continued threat to break into other homes, and when asked by the juvenile what a secure custody order was, DiContanzo responded that that’s “where you get sent to juvenile detention before court.”


Faced with the prospect of “juvenile detention,” J.D.B. broke down and confessed that he and a friend had broken into the two residences. And it was at this point that DiContanzo informed the 13-year-old that he had a right to refuse to answer any more questions and that he was “free to leave.” When asked whether he understood those rights, J.D.B. nodded in the affirmative and confessed in greater detail, telling the detective where the stolen items could be located. The juvenile then provided DiContanzo with a written statement at the detective’s request. When a school bell rang signaling an end to the school day, J.D.B. was allowed to leave the conference room and go catch a school bus home.


Two “juvenile petitions” were filed against J.D.B. in October 2005—each charging one count for breaking and entering and another for larceny. J.D.B.’s public defender sought unsuccessfully to have his client’s confession suppressed, and the juvenile court adjudicated the 13-year-old a “juvenile delinquent” in December 2005.

The U.S. Supreme Court held in Illinois v. Perkins that Miranda warnings must be given only when a suspect is in custody and subjected to actual police interrogation. The court defined “custody” as “restraint on freedom” in any significant way. While the court has recognized that a “totality of the circumstances” will determine custody, two common factors have emerged as to what constitutes custody: 1) a reasonable person would not feel free to end the police interrogation and leave; and 2) the location of the interrogation.


The North Carolina Supreme Court decided that J.D.B. was not “in custody” when he gave his confession and the court was unwilling to “extend the test for custody to include the consideration of age … of an individual subjected to questioning by the police.”

And that was the issue squarely before the Supreme Court in J.D.B.’s case in which attorneys for the State of North Carolina argued that “a child’s age has no place in the custody analysis, no matter how young the child subjected to police questioning.”


Have so many in the law enforcement community reached such a tragic and scary point that it can be considered acceptable for the police to use the coercive nature of interrogations to get a confession out of our kids, no matter how young they are?


The Scalia/Thomas/Alito coalition believes they can. The conservative stalwarts criticized the majority opinion, authored by Justice Sotomayor, which found that a suspect age is indeed a significant factor courts should utilize in determining whether a suspect was in “custody” at the time of his/her questioning and subsequent confession. The trio stated:


“Today’s decision shifts the Miranda custody determination from a one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with susceptibility to coercive pressures. Age, however, is in no way the only personal characteristic that may correlate with plausibility, and in future cases the Court will be forced to choose between two unpalatable alternatives. It may choose to limit today’s decision by arbitrarily distinguishing a suspect’s age from other personal characteristics—such as intelligence, education, occupation, or prior experience with law enforcement—that may also correlate with susceptibility to coercive pressures. Or, if the Court is unwilling to draw these arbitrary lines, it will be forced to effect a fundamental transformation of the Miranda custody test—from a clear, easily applied prophylactic rule into a highly fact-intensive standard resembling the voluntariness test that the Miranda court found to be unsatisfactory.


“For at least three reasons, there is no need to go down this road. First, many minors subjected to police interrogation are near the age of majority, and for these suspects the one-size-fits-all Miranda custody rule may not be a bad fit. Second, many of the difficulties are applying the Miranda custody rule to minors arise because of the unique circumstances present when the police conduct interrogations at school. The Miranda custody rule has always taken into account the setting in which questioning occurs, and accounting for the school setting in such cases will address many of these problems. Third, in cases like the one now before us, where the suspect is especially young, courts applying the constitutional voluntariness standard can take special care to ensure that incriminating statements were not obtained through coercion.”


Justices Scalia and Thomas are avowed constitutional purists who believe the document should be interpreted under the exact intent of the framers who drafted it. This nation’s “war of independence” was fought to free the colonialists from severe interrogations by the British, particularly their children. Any colonial parent who had their 13-year-old hauled before British authorities would have wanted to be present during the interrogation, even if their child was actually guilty of some wrongdoing. Parents have an inherent and “inalienable” right to defend and advise their children what to do under the most adverse circumstances, including in the coercive atmosphere of an authoritarian interrogation. That was true in 1775 and it remained true in 2005 when J.D.B.’s grandmother was not given a chance to protect her grandchild from such a coercive law enforcement interrogation.


Fortunately, the majority of the Supreme Court had the common sense to understand the need to protect our children from coercive law enforcement interrogations. The majority instructed the Scalia/Thomas/Alito coalition and the State of North Carolina that:


“There is, however, an even more fundamental flaw with the State’s plea for clarity and the dissent’s singular focus on simplifying the analysis. Not once have we excluded from the custody analysis a circumstance that we determined was relevant and objective, simply to make the fault line between custodial and noncustodial ‘brighter.’ Indeed, were the guiding concern clarity and nothing else, the custody test would presumably ask only whether the suspect had been placed under formal arrest … But we have rejected that ‘more easily administered line,’ recognizing that it would simply ‘enable the police to circumvent the constraints on custodial interrogations established by Miranda.’


“Finally, the State and dissent suggest that excluding age from the custody analysis comes at no cost to juveniles’ constitutional rights because the due process voluntariness test independently accounts for a child’s youth. To be sure, that tests permits consideration of a child’s age, and it erects its own barrier to admission of a defendant’s inculpatory statements at trial  … But Miranda’s procedural safeguards exist precisely because the voluntariness test is an inadequate barrier when custodial interrogation is at stake … To hold, the State suggests, that a child’s age is never relevant to whether a suspect has been taken into custody—and thus ignore the very real differences between children and adults—would be to deny children the full scope of the procedural safeguards that Miranda guarantees to adults.”


No matter what the political perspective of any parent may be, they would not want their 13-year-old child confronted behind closed doors by four adults, all in authoritarian positions, and pressured and encouraged to confess to wrongdoing outside of the parent’s presence. The parent would not only find it personally offensive but constitutionally shocking without having any legal knowledge about the co-called Miranda “custody” test. And the same parent would stand face-to-face, toe-to-toe with Justices Scalia, Thomas, and Alito in defending their child from the very kind of coercive law enforcement treatment J.D.B. experienced—a treatment defended by attorneys for the State of North Carolina.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization