By Daniel McGinn-Shapiro
When is a 13-year-old student under arrest? On November 1, 2010, the United States Supreme Court granted a writ of certiorari to hear arguments in the case, J.D.B. v. North Carolina, 2010 WL 2215447 (2010). At issue in the case is whether a 13-year-old student was entitled to the protection of Miranda warnings when questioned by police at school.
Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), requires that “when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning… [the individual] must be warned prior to any questioning,” of what has become known as the Miranda rights; the right to remain silent and the right to an attorney before being questioned. The issue has arisen in the case law about what it means to be “taken into custody or otherwise deprived of freedom by the authorities.”
Courts have adopted a two-part objective test to determine whether a suspect is “in custody for Mirandapurposes: ‘first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.’” Petition for Writ of Certiorari at *8, J.D.B. v. North Carolina, 2010 WL 4278709 (2010) (No. 09-11121) (citing Thompson v. Keohane, 516 U.S. 99, 112 (1995)). The issue in this case is whether the reasonable person standard should take into consideration the age of the suspect.
The immediate case involved the following situation. J.D.B., a seventh-grade student in special education classes was removed from his social studies class by a uniformed police officer, Officer Gurley. Id. at *2-3. Officer Gurley took J.D.B. to a conference room where the Assistant Vice Principal, a school intern, and a juvenile investigator from the Chapel Hill Police Department, Officer DiCostanza, were waiting. ” In re J.D.B., 363 N.C. 664, 666 (N.C. 2009). Officer DiCostanza, who knew J.D.B. was 13 years old, had come to question J.D.B. about two off-campus incidents of breaking and entering. Petition for Writ of Certiorari at *3, J.D.B. (No. 09-11121). After J.D.B. entered the conference room, the door to the room was closed but not locked. In re J.D.B., 363 N.C. at 666. Miranda warnings were not issued and J.D.B. was not given the opportunity to call a parent or guardian before being questioned in a room surrounded by four adults, one of whom was in a police uniform and another who was an investigator from the police department. Id. Additionally, no parent or guardian was called before the questioning. Id.
The Supreme Court of North Carolina determined that “there was not sufficient ‘indicia of formal arrest’ to justify a conclusion that J.D.B. ‘had been formally arrested or had his freedom of movement restrained to the degree associated with a formal arrest.’” 363 N.C. at 670 (citing In re W.R., 363 N.C. 244, 248 (N.C. 2009)). While there are a number of issues raised in the two dissenting opinions, the major issue in this case is whether a defendant’s age should be taken into consideration. Or in other words, is the test whether a reasonable person would have believed they were at liberty to leave, or whether a reasonable 13 year old being pulled from class by a uniformed police officer and then questioned in a conference room surrounded by four adults, would have felt that he was free to leave.
While holding that it is not binding on the Court, the North Carolina Supreme Court relied on the reasoning of the United States Supreme Court in Yarborough v. Alvarado, 541 U.S. 652 (2004). In the majority opinion inYarborough, Justice Kennedy wrote that “the custody inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's individual characteristics-including his age-could be viewed as creating a subjectiveinquiry.” 541 U.S. at 668 (citing Oregon v. Mathiason, 429 U.S. 492, 495-96 (1977)). But, the majority opinion in Yarborough includes Justice O’Connor. And, as North Carolina Supreme Court Justice Hudson notes, Justice O’Connor wrote a concurring opinion in which she stated that “there may be cases in which a suspect’s age will be relevant to the ‘custody’ inquiry under Miranda.” In re J.D.B., 363 N.C. at 689 (citing Yarborough, 541 U.S. at 669). As Justice Hudson further stresses, in Justice Breyer’s dissenting opinion in Yarborough, which three other Justice’s signed, Justice Breyer determined that a juvenile’s age should be taken into consideration in the custody determination under Miranda. In re J.D.B., 363 N.C. at 688. Taking Justice Breyer’s dissent and Justice O’Connor’s concurrence together, it could be argued that in Yarborough, a five Justice majority of the Court determined that there are times when a suspect’s age should be considered in the “‘custody’ inquiry under Miranda.”
As the Petition for Certiorari notes, “state and federal courts are divided on whether they may consider a juvenile suspect’s age in making a Miranda custody determination.” Petition for Writ of Certiorari at *7, J.D.B. (No. 09-11121). While Colorado, Nebraska, Ohio, Tennessee, and Texas state courts, and the United States Court of Appeals for the Fifth Circuit have “explicitly considered age a relevant factor,” courts in Iowa, Illinois, North Carolina, Wyoming, and the District of Columbia have called the consideration of age into question. Id. At *12-13.
Yarborough v. Alvarado did not explicitly clarify whether a suspect’s age should be considered in the “‘custody’ inquiry under Miranda.” Additionally, Chief Justice Rehnquist, and Justices O’Connor, Stevens, and Souter have all left the Court since Yarborough was decided. Finally, Yarborough was a 5-4 decision, where it was not entirely clear whether there were five votes for or against a blanket prohibition against using age as a factor. It will be interesting to see if in J.D.B. v. North Carolina, the Court brings further clarity to this issue affecting the application of Miranda.