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In re B.C.

Supreme Court of New Hampshire

January 29, 2015

In re B.C

Argued September 11, 2014

10th Circuit Court -- Salem Family Division.

Joseph A. Foster, attorney general ( Nicholas Cort, assistant attorney general, on the brief and orally), for the State.

B.C., for herself, filed no brief.

David M. Rothstein, deputy director, of Concord, on the brief and orally, for the New Hampshire Appellate Defender Program, as amicus curiae.

BASSETT, J. DALIANIS, C.J., and HICKS and CONBOY, JJ., concurred; LYNN, J., dissented.


Page 691

Bassett, J.

The State appeals an order of the Circuit Court ( Sullivan, J.) granting the motion of the juvenile, B.C., to suppress a statement obtained in violation of her rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and State v. Benoit, 126 N.H. 6, 490 A.2d 295 (1985). We affirm.

Page 692

I. Factual Background

The trial court found, or the record establishes, the following facts. The juvenile, who was fourteen years of age at the time, was arrested for shoplifting merchandise from " Claire's," a discount jewelry store in the Rockingham Mall. She was transported, in handcuffs, to the Salem Police station. At the station, the handcuffs were removed, and the juvenile was taken to the booking room, which has a locked entry. The arresting officer telephoned the juvenile's mother to pick her up. While in the booking room, the juvenile asked if she could use the bathroom. An officer allowed her to use the bathroom in one of the holding cells. Another officer observed her via a closed circuit monitor in the supervisor's office. He saw the juvenile " just ... flush the toilet" and believed that " [i]t looked like she had flushed something down the toilet." The officer, who had observed the juvenile, spoke with the arresting officer, and the arresting officer asked the juvenile " what she had flushed down the toilet." The juvenile told the arresting officer " that it was a necklace that she had taken and ... had concealed in her pants." The officer did not inform the juvenile of her Miranda rights before questioning her or at any other time. The juvenile remained at the police station until her mother picked her up.

After she admitted to flushing the necklace down the toilet, the juvenile was charged with falsifying evidence. After a hearing in August 2011, she was found delinquent. During the merits hearing, she moved to suppress her admission on the ground that it was the product of custodial interrogation and that she was not advised of her Miranda rights before making it. The court denied her motion, and the juvenile appealed. We remanded the case for further fact finding.

On remand, the trial court conducted an evidentiary hearing at which the arresting officer was the only witness. At the hearing, the juvenile argued that suppression of her response to the officer's question was required by both Part I, Article 15 of the State Constitution and the Fifth Amendment to the Federal Constitution. Following the hearing, the court granted the juvenile's motion to suppress her admission, and the State filed the instant appeal. The juvenile has not participated in this appeal. We have allowed the New Hampshire Appellate Defender Program to appear as amicus curiae.

II. Legal Background

The Fifth Amendment to the Federal Constitution, which applies to the States by virtue of the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653, (1964), provides: " No person ... shall be compelled in any criminal case to be a witness against himself." Part I, Article 15 of the State Constitution similarly provides: " No subject shall be ... compelled to accuse or furnish evidence against himself."

In Miranda, the Supreme Court " addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of a custodial interrogation." Berkemer v. McCarty, 468 U.S. 420, 428, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). " [T]he Court saw as inherently coercive any police custodial interrogation conducted by isolating the suspect with police officers; therefore, the Court established a per se rule that all incriminating statements made during such interrogation are barred as 'compelled.'" United States v. Washington, 431 U.S. 181, 187 n.5, 97 S.Ct. 1814, 52 L.Ed.2d 238 (1977). The Court stated that " [e]ven without employing brutality [or] the 'third degree' ..., the very fact of custodial interrogation exacts

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a heavy toll on individual liberty and trades on the weakness of individuals." Miranda, 384 U.S. at 455. Consequently, the Court reasoned, " [u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." Id. at 458; see Maryland v. Shatzer, 559 U.S. 98, 103, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010).

" To counteract the coercive pressure, Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney." Shatzer, 559 U.S. at 103-04; see Miranda, 384 U.S. at 444, 467-73. The central principle of Miranda is that " if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt." Berkemer, 468 U.S. at 429. In Benoit, we held that Part I, Article 15 of the State Constitution entitled a juvenile to be informed of her Miranda rights " in language understandable to a child." Benoit, 126 N.H. at 19.

Here, the trial court determined that the juvenile did not receive the procedural safeguards required by Miranda and Benoit before the officer questioned her regarding the object that she had flushed down the toilet. The trial court impliedly concluded that she was entitled to those safeguards because she was subject to custodial interrogation.

III. Analysis

As a general rule, two conditions must be met before Miranda and Benoit warnings are required: (1) the suspect must be " in custody" ; and (2) she must be subject to " interrogation." See Miranda, 384 U.S. at 478. The State appears to dispute that either condition was met in this case.

We first address the State's claims under the State Constitution and rely upon federal cases only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33, 471 A.2d 347 (1983). " Because the ultimate determination of custody requires an application of a legal standard to historical facts, it is not merely a factual question but a mixed question of law and fact." State v. Ford, 144 N.H. 57, 62, 738 A.2d 937 (1999). Thus, we review the ultimate determination of custody de novo. Id. at 63. " We will not overturn the trial court's factual findings relevant to the question of custody unless they are contrary to the manifest weight of the evidence." State v. Jennings, 155 N.H. 768, 772-73, 929 A.2d 982 (2007). The State has not challenged any of the trial court's factual findings on appeal.

A. Custody

" Custody entitling a defendant to Miranda protections requires formal arrest or restraint on freedom of movement to the degree associated with formal arrest." Id. at 772 (quotation omitted). " Absent a formal arrest, the trial court must determine whether a suspect's freedom of movement was sufficiently curtailed by considering how a reasonable [person] in the suspect's position would have understood his situation." Ford, 144 N.H. at 63 (quotation omitted). To determine whether a reasonable person in a suspect's position would believe herself to be in custody, the trial court should consider the totality of the circumstances of the encounter, including: the suspect's familiarity with her surroundings, the number of officers present,

Page 694

the degree to which the suspect was physically restrained, and the interview's duration and character. State v. McKenna, 166 N.H. 671, 677, 103 A.3d 756 (2014). Like the analysis used by other courts, our custody analysis is binary: we determine whether the suspect either is under formal arrest or has had her freedom of movement restricted to the degree associated with formal arrest. See J.D.B. v. North Carolina, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011) (observing that to determine custody for Miranda purposes, " the ultimate inquiry" is " was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest" (quotation omitted)); McKenna, 166 N.H. at 679, 103 A.3d at 764 (observing that " [c]ustody for Miranda purposes can arise because of a formal arrest or the functional equivalent of arrest" ); Jennings, 155 N.H. at 772 (noting that the court determines whether the suspect's freedom of movement has been sufficiently curtailed only " [i]n the absence of formal arrest" ).

Using our well-established custody analysis, there can be no question that the juvenile was in custody for Miranda and Benoit purposes. When she was interrogated, she was under formal arrest and had been taken to the police station. This is " the paradigmatic Miranda situation," in which a person has been " arrested ... and whisked to a police station for questioning." Howes v. Fields, 132 S.Ct. 1181, 1190, 182 L.Ed.2d 17 (2012). She was subject to " incommunicado" interrogation in the very same " unfamiliar," " police-dominated atmosphere," as were the defendants in Miranda. Miranda, 384 U.S. at 456-57. She was interrogated in the very environment that the Court in Miranda decided involved " inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 467.

The State contends, however, that we should not apply our traditional test for determining custody, but should apply a test that we have previously applied only to prison and jail inmates. See Ford, 144 N.H. at 63-64. The State further contends that, under the test we apply to prison and jail inmates, the defendant was not " in custody."

In Ford, we held that " [w]hen a defendant is already incarcerated at the time of interrogation, the traditional custody analysis is inappropriate." Id. at 63. This is so because our traditional analysis focuses upon the degree to which a suspect's " freedom of movement" is curtailed. Id. Because, " by its very nature, a prison setting restrains the freedom of movement of its inmates," we observed that applying our " traditional analysis" to " prisoner interrogation would lead inexorably to a per se rule that all interrogations of prison inmates are custodial." Id. We eschewed adopting such a per se rule, and, instead, held that " when an individual is incarcerated for an offense unrelated to the subject of his interrogation, custody for Miranda purposes occurs when there is some act or circumstance that places additional limitations on the prisoner." Id.

In Ford, we concluded that the defendant was not in custody when he was interviewed by police officers because: (1) he was interviewed " in a relatively [non-]coercive area of the prison, the correctional officers' lunch room, not a prison cell or interrogation room" ; (2) he " was not pressured to disclose information" ; (3) he " was free to terminate the interview," and, at one point, did so, only to " call[ ] the officers back and agree[ ] to speak with them" ; (4) he " largely controlled the topics discussed" ; and (5) until he implicated

Page 695

himself, the officers did not consider him a suspect in the robbery to which he confessed. Id. at 64. We concluded that, because the circumstances surrounding the officers' questioning did not " impose[ ] any additional restraint on the defendant's freedom of movement," the defendant was not in custody. Id. We have applied Ford to a defendant confined pretrial at a county jail, see State v. Pehowic, 147 N.H. 52, 53, 55, 780 A.2d 1289 (2001), and to a defendant who was at a county jail serving a sentence on a parole violation, see State v. Dorval, 144 N.H. 455, 455, 457, 743 A.2d 836 (1999).

Ford 's " additional limitations" test is consistent with the test used by numerous other jurisdictions. See, e.g., Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir. 1978); United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985); see also 2 W. LaFave et al., Criminal Procedure § 6.6(b), at 724-25 (3d ed. 2007) (citing cases and explaining that " a unique body of caselaw has developed about the need for Miranda warnings in a prison setting" (quotation omitted)). Ford is also consistent with Fields, 132 S.Ct. at 1192. In Fields, the Supreme Court declined to adopt a per se rule that a prison inmate is in custody for Miranda purposes solely because of his incarceration, and, instead, ruled that " [w]hen a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation," including " the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted." Fields, 132 S.Ct. at 1192.

The State asserts that the " additional limitations" test applies to the juvenile because " she was not questioned about the crime for which she was arrested." We disagree with the State that the question to the juvenile was not about the shoplifting offense for which she was arrested. Moreover, even if the question concerned a different offense, we conclude that our traditional custody analysis would still apply. See Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, 1968-2 C.B. 903 (1968), clarified by Fields, 132 S.Ct. at 1188; see also 2 LaFave supra § 6.6(b), at 724 (" Miranda applies to interrogation of one in custody for another purpose or with respect to another offense" ); 1 C. Wright & A. Leipold, Federal Practice and Procedure: Criminal ยง 75, at 206 (4th ed. 2008) ...

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