Justia.com Opinion Summary:Download as PDF
RENDERED: APRIL 25, 2013
TO BE PUBLISHED
uprrittr (Court ofeT,fintfurkv
N.C., A CHILD UNDER EIGHTEEN
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2010-CA-001616-MR
NELSON JUVENILE COURT NO. 08-J-00028-003 AND NELSON
CIRCUIT COURT NO. 10-)0(-00003
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE NOBLE
REVERSING AND REMANDING
This case is before the Court on the question of whether N.C., a juvenile,
is entitled to suppression of a confession in which he admitted giving
hydrocodone to another student. The statement was made directly in answer
to questions from the school assistant principal, who was working in
conjunction with a deputy sheriff (School Resource Officer) who was also
present. The School Resource Officer did not read the juvenile his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). This Court recognizes that
questioning by school officials is relevant and necessary to student discipline
and safety, and that such matters are not impacted by Miranda when only
school discipline is involved. But this Court holds that any incriminating
statements elicited under the circumstances of this case, with a school official
working with the police on a case involving a criminal offense, the police failing
to give Miranda warnings, and the juvenile being in custody, are subject to
suppression under the Unified Juvenile Code and the Fifth Amendment. With
this rule in mind, the Court concludes that N.C. was in custody when he was
questioned and that his statements must be suppressed.
A teacher at Nelson County High School found an empty prescription pill
bottle for hydrocodone with N.C.'s name on it on the floor in the boy's
bathroom. He turned this in to the school office, and the occurrence was
investigated to some degree before N.C. was questioned. Steven D. Campbell, a
Nelson County deputy sheriff assigned to the high school as the School
Resource Officer (SRO), testified at the suppression hearing in this case that
the assistant principal, Michael Glass, knew that N.C. had given some pills
away before he and the assistant principal went to N.C.'s classroom and took
him out of class. Both the officer and the assistant principal knew that the
prescription was for hydrocodone based on the bottle that was found. They also
knew the name of the student who brought the pill bottle to the school, also
based on the information on the bottle.
N.C. was taken into the office by the assistant principal and the SRO,
and the door was closed. The assistant principal first asked N.C. if he had any
idea why he was there; N.C. said he did not. Also according to the SRO's
testimony, the assistant principal then told N.C. about the pill bottle, and N.C.
said, "I did something stupid." The assistant principal explained about finding
the bottle in the boy's bathroom, and said that "it was told that he [N.C.] had
given some pills away." N.C. then admitted that he had given two pills to a
friend of his, explaining that he had had his wisdom teeth removed, and that
the prescription was for pain. The assistant principal asked him how many
pills he had brought, and N.C. admitted to having three, one of which he had
taken and two that he had given to the other student. He also told the assistant
principal that the other student had been insistent about N.C. giving him some
pills. The assistant principal told N.C. that he was subject to school discipline
(in fact he was subsequently expelled). He then left to check on the other
student while the SRO told N.C. that he would be charged with a crime and
explained the criminal consequences.
The assistant principal admitted at the suppression hearing that he
knew how the SRO operated in criminal investigations, since this was not their
"first go around" interrogating juveniles together. The officer also testified about
what the assistant principal usually did in questioning a student in the officer's
presence. Clearly, the assistant principal and the officer had a loose routine
they followed for questioning students when there was suspected criminal
The SRO further testified that he was present throughout, and
participated in the discussion. He was either wearing his uniform or a shirt
that said "Sheriff's Office," and was armed with a gun. He was assigned to the
high school from the sheriff's office, and had been there daily for the last four
years. It was his decision to file charges against N.C. At no time did the SRO
tell N.C. that he was free to leave or give him any version of the Miranda
warnings, though the officer obviously understood that the hydrocodone was a
scheduled narcotic, as evidenced by the charges he filed in juvenile court. He
did tell N.C. and his mother that N.C. would be charged criminally, both when
N.C.'s mother was called and when she came to pick him up from school and
was given a copy of the citation. At the time, it was school policy to send an
accused student home, and proceed with any charges in the juvenile court.
N.C. was charged with possessing and dispensing a controlled
substance, a Class D felony, in a juvenile petition under KRS 610.010. In the
juvenile petition, the officer stated that N.C. "has admitted to the affiant to
giving two (2) of his prescription pills (Hydrocodone, Schedule II drug for pain
relief) to another student at Nelson County High School."
The official Preliminary Inquiry form used by the court-designated
worker, Monica Felty, indicated that N.C. was "classified" as a Youthful
Offender because he had attained age 16 at the time of the commission of this
offense and had been previously adjudicated as a Public Offender for the felony
offense of third-degree burglary.
After hearing testimony, the trial court denied N.C.'s motion to suppress.
On December 28, 2009, N.C. entered a conditional guilty plea to the charge,
reserving the right to appeal the denial of his motion. Because he had turned
18 prior to the disposition date of February 28, 2010, N.C. was sentenced to 45
days in jail, 30 hours of community service, and an additional 27 hours of
community service in lieu of court costs. This sentence was stayed pending any
appeals. He appealed to the Nelson Circuit Court, which affirmed the lower
court decision. A timely motion for discretionary review was filed at the Court
of Appeals, which denied review. N.C. then filed for discretionary review at this
Court, which was granted on February 15, 2012.
The issue before the Court is whether a student is entitled to the benefit
of the Miranda warnings before being questioned by a school official in
conjunction with a law enforcement officer, the SRO, when he is subject to
criminal charges in district court or, as in this case, adult felony charges in
circuit court. The SRO, a deputy sheriff assigned to the school in a full-time
capacity by the local sheriff's office, participated in the process by going with
the assistant principal, taking the student out of class, escorting him to the
principal's office, and was present in a closed room while the assistant
principal questioned the student. He summed up the result of the questioning,
charged the student with a Class D felony, and issued a citation on the spot.
This is a highly relevant and far reaching question that presents a nexus
between the rights of a juvenile accused of a crime and the needs of school
officials to maintain order in the schools and protection for the other children
in their care on the school premises or during school activities. Even though
most of the law which governs these questions has been applicable for some
time, the framing of the questions has changed over time with the advent of
increased criminal activity by students in the school setting and local law
enforcement officers being assigned to and working daily in the schools.
A. When Miranda applies
Miranda established a two-part threshold before the warnings are
required. Setting up the analysis, the Court first stated "the prosecution may
not use statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against selfincrimination." Miranda, 384 U.S. at 444. The Court then clarified that
"custodial interrogation ... mean[s] questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." Id. The referenced procedural
safeguards are the well-known warnings. Thus the two-step threshold requires
both questioning by law enforcement and being held in custody. When it is the
police or other law enforcement officer who is doing the questioning, the first
threshold is obviously met.
But since the rule was set out in Miranda, the Court has held that in
some situations persons who are not law enforcement will be treated as such
for Miranda purposes. In Mathis v. United States, 391 U.S. 1 (1968), an IRS
agent obtained incriminating statements from a defendant in custody for other
reasons without giving him the Miranda warnings in the course of a routine
civil tax investigation. Noting that such routine questioning frequently could
lead to criminal charges, the Court found that the threshold for giving Miranda
warnings had been met because the defendant's freedom was restrained (he
was in jail and not free to leave) and the IRS agent was acting as law
enforcement by asking the questions which led to his criminal charges. Id. at 4.
We have followed this reasoning in Buster v. Commonwealth, 364 S.W.3d
157 (Ky. 2012), where we held that a non-law enforcement person was acting
on behalf of or in concert with police to obtain a confession and thus Miranda
warnings were required. When police could not obtain a statement from a
mentally challenged suspect, they engaged a social worker, whom the suspect
knew well and trusted, to question her and turn the information over to them.
This made the questioning "indistinguishable from the police investigation,"
and therefore the social worker was "subject to the same constraints as a police
officer." Id. at 164 65; see also Hartsfield v. Commonwealth, 277 S.W.3d 239,
245 (Ky. 2009) (finding that a SANE nurse's interview was the "functional
equivalent of police questioning").
And, pertaining specifically to a juvenile defendant, the federal district
court for the Northern District of Indiana has held that when a school principal
questioned a child with no law enforcement present, the principal was not
acting on behalf of law enforcement, and the child was never subjected to
criminal charges, the absence of law enforcement involvement is a significant
factor that demonstrates when Miranda warnings are not implicated. That the
law enforcement issue was noted indicates that had the principal been acting
on behalf of law enforcement, the consideration would have been different.
C.S. v. Couch, 843 F. Supp. 2d 894, 918-19 (N.D. Ind. 2011).
Thus the "law enforcement" requirement in Miranda may be contextual,
or more related to function than to title.
The second threshold question—whether a person is in custody—is an
objective inquiry. At its most basic, custody requires a formal arrest or
restraint on the subject's freedom of movement comparable to a formal arrest.
Thompson v. Keohane, 516 U.S. 99, 112 (1995). This requires a court to
determine the circumstances surrounding the interrogation and, given those
circumstances, to decide whether a reasonable person would believe he could
terminate the interrogation and leave. J.D.B. v. North Carolina, 131 S.Ct. 2394,
2402 (2011). Law enforcement and courts have been directed to examine all
the circumstances surrounding the interrogation.
Stansbury v. California, 511
U.S. 318, 322 (1994).
But it should be noted that the giving of Miranda warnings does not
create a fail-safe for the admissibility of the statement obtained. Even then,
admissibility of the statement may be challenged on the ground that the
statement was not voluntarily given. But the absence of Miranda warnings,
when required, does make statements inadmissible.
This question was addressed in Fikes v. Alabama, 352 U.S. 191 (1957),
and is most commonly referred to as the "voluntariness" question. In Fikes, a
pre-Miranda case, the defendant was sentenced to death for burglary with
intent to commit rape. When he was arrested, he was questioned for over two
hours, then was taken to a jail in another county and held for over two weeks
without appearing in court. While he was held, he was kept in total
segregation, and was not allowed the visits of family or his lawyer. During that
time, he was interrogated repeatedly until he gave his first oral confession five
days into the questioning, and signed a written one in the second week of being
held. He had limited mental ability. Focusing on whether his confession could
be deemed voluntary under the circumstances, the Supreme Court found that
due process had been violated, and upheld the state supreme court's decision
to reverse and order suppression of the confessions.
Miranda followed in 1966 and made statements obtained from a
custodial interrogation by law enforcement inadmissible if the suspect had not
been informed of his right to counsel and right to remain silent. Obviously, if
Miranda warnings are given, this augurs toward the statements being
voluntary, though that is not the end of the inquiry. Several years later in
Schneckloth v. Bustamonte, 412 U.S. 218 (1973), a case involving the
voluntariness of a consent to search, the Supreme Court adopted the meaning
of voluntariness used in the previous confession cases. In establishing how
voluntariness could be determined, the Court laid out a "totality of the
circumstances" test which viewed knowledge of the right to refuse consent as a
factor. The Court carefully distinguished the Fourth Amendment search rights
from the Fifth Amendment right not to incriminate oneself, and stated: "The
Constitution requires that every effort be made to see to it that a defendant in a
criminal case has not unknowingly relinquished the basic protections that the
Framers thought indispensable to a fair trial." Id. at 242. Nonetheless, this
"totality of the circumstances" test has been adopted in determining
voluntariness, with a more demanding standard in criminal cases placed on
defining voluntariness of self-incrimination, which includes the giving of
Miranda warnings, in custodial interrogations by law enforcement.
B. The custody aspect of Miranda in juvenile cases
In the landmark case In re Gault, 387 U.S. 1 (1967), the United States
Supreme Court reviewed the development of juvenile legal issues to that point
in time, stating:
From the inception of the juvenile court system, wide differences
have been tolerated—indeed insisted upon—between the
procedural rights accorded to adults and those of juveniles. In
practically all jurisdictions, there are rights granted to adults
which are withheld from juveniles. In addition to the specific
problems involved in the present case, for example, it has been
held that the juvenile is not entitled to bail, to indictment by grand
jury, to a public trial or to trial by jury. It is frequent practice that
rules governing the arrest and interrogation of adults by the police
are not observed in the case of juveniles.
Id. at 14. After recapitulating the history and theory underlying the
development of juvenile courts as a system distinct from adults, the Court went
on to opine:
Accordingly, the highest motives and most enlightened impulses
led to a peculiar system for juveniles, unknown to our law in any
comparable context. The constitutional and theoretical basis for
this peculiar system is—to say the least—debatable .... The
absence of procedural rules based upon constitutional principle
has not always produced fair, efficient, and effective procedures.
Departures from established principles of due process have
frequently resulted not in enlightened procedure, but in
Id. at 17-18.
Stating that "[d]ue process of law is the primary and indispensable
foundation of individual freedom," id. at 20, the Court concluded:
Certainly, ... the high crime rates among juveniles to which we
have referred could not lead us to conclude that the absence of
constitutional protections reduces crime, or that the juvenile
system, functioning free of constitutional inhibitions as it has
largely done, is effective to reduce crime or rehabilitate offenders.
We do not mean to denigrate the juvenile court process or to
suggest that there are not aspects of the juvenile system relating to
offenders which are valuable. But the features of the juvenile
system which its proponents have asserted are of unique benefit
will not be impaired by constitutional domestication .... There is no
reason why the application of due process requirements should
interfere with such provisions.
Id. at 22-24 (citation omitted).
The issue in Gault that is pertinent to the present case specifically
concerned the questioning of the child once out of court and twice in court,
and obtaining a confession without informing him of his privilege against self-
incrimination under the Fifth Amendment to the United States Constitution.
This warning is embodied in what is commonly referred to as "Miranda
The Gault majority analyzed a common view at the time that the policy of
juvenile justice was designed to hide youthful errors from the full gaze of the
public and bury them in the graveyard of the forgotten past' and called it "more
rhetoric than reality." Gault, 387 U.S. at 24. The Court disposed of the notion
that the juvenile judge should exercise lax procedures because this allowed the
judge to give "paternal advice and admonition," id. at 26, by saying that the
appearance and actuality of fairness, impartiality and orderliness may be a
more impressive and therapeutic approach, because otherwise the child may
feel that he is not being fairly treated, and thus will resist therapeutic efforts.
The Court held in conclusion that the essentials of due process and fair
treatment must be a part of juvenile proceedings.
And, further, the Court concluded that the reality of what a child
experiences from the juvenile process when being adjudicated guilty of a public
offense is that the child can be committed to a public institution "where he may
be restrained of liberty for years." Id. at 27. The Court stated further:
The fact of the matter is that, however euphemistic the title, a
`receiving home' or an 'industrial school' for juveniles is an
institution of confinement in which the child is incarcerated for a
1 "Prior to any questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used as evidence against him,
and that he has a right to the presence of an attorney, either retained or appointed."
Miranda v. Arizona, 384 U.S. 436, 444 (1966); see also id. at 479 ("He must be warned
prior to any questioning that he has the right to remain silent, that anything he says
can be used against him in a court of law, that he has the right to the presence of an
attorney, and that if he cannot afford an attorney one will be appointed for him prior
to any questioning if he so desires.").
greater or lesser time. His world becomes a building with
whitewashed, regimented routine and institutional hours. Instead
of mother and father and sisters and brothers and friends and
classmates, his world is peopled by guards, custodians, state
employees and 'delinquents' confined with him for anything from
waywardness to rape and homicide.
Id. at 27.
The Court found that in light of this it would be "extraordinary" if the
Constitution did not require the procedural regularity and care of due process.
In short, the Court said, "Under our Constitution, the condition of being a boy
does not justify a kangaroo court." Id. at 28-29. Observing that if the child
were 18, the Constitution would guarantee Gault's rights and protections
relating to arrest, search, seizure and pretrial interrogation, the Court held
We do not mean to indicate that the hearing must conform with all
the requirements of a criminal trial or even the usual
administrative hearing; but we do hold that the hearing must
measure up to the essentials of due process and fair treatment.
We reiterate this view, here in connection with a juvenile court
adjudication of 'delinquency,' as a requirement of the Due Process
Clause of the Fourteenth Amendment of our Constitution.
Id. at 30-31.
Specifically as to Gault's questioning, the Court confined its holding to
the admissions he made in court, because that is all the trial court relied on.
On the question of whether such admissions could be used against the child in
the absence of clear and unequivocal evidence that the admission was made
with knowledge that he was not obliged to speak and would not be penalized
for remaining silent, the Court again emphasized that admissions and
confessions of juveniles require special caution because a juvenile cannot be
judged by the more exacting standards of mature adults.
And, as to self-incrimination, the Court observed that the roots of the
privilege are deep, expressing the essential dividing line between the individual
and the state, and prohibiting the state from depriving an individual of the
decision whether to assist the state in securing his conviction. Saying that litt
would indeed be surprising if the privilege against self-incrimination were
available to hardened criminals but not to children," id. at 47, the Court found
that it would be "entirely unrealistic to carve out of the Fifth Amendment all
statements by juveniles on the ground that these cannot lead to 'criminal'
involvement," id. at 49, because public offense charges can lead to
incarceration against one's will, a deprivation of liberty, regardless of what it is
called or where the child is housed. The Court noted:
And our Constitution guarantees that no person shall be
`compelled' to be a witness against himself when he is threatened
with deprivation of his liberty—a command which this Court has
broadly applied and generously implemented in accordance with
the teaching of the history of the privilege and its great office in
mankind's battle for freedom.
Id. at 50. The Court's final holding on the privilege against self-incrimination is
simple and clear: "We conclude that the constitutional privilege against selfincrimination is applicable in the case of juveniles as it is with respect to
adults." Id. at 55 (emphasis added).
There is nothing equivocal about this statement. And while Gault did not
deal with out-of-court confessions, it cannot be reasonably argued from the
clear mandate of the Court that such statements, obtained through a police
interrogation, can be treated any differently than those of adults. It is not
surprising, then, that federal cases dealing with the question of whether a
juvenile is entitled to Miranda warnings have moved past the threshold
question in Gault to cases involving the analysis applied to confessions of
adults, such as whether the person questioned was actually in custody at the
time of questioning and whether the statements were voluntary.
It has been argued that the case of Allen v. Illinois, 478 U.S. 364 (1986),
weakens the holdings in Gault because it holds that the labels "civil" and
"criminal" are not dispositive, but rather it is the substance of a procedure that
determines when certain constitutional rights are required. In Allen, the Fifth
Amendment right against self-incrimination was held inapplicable to the civil
commitment procedure used to institutionalize a "sexually dangerous person"
because the person committed was not being punished by the state. The state
had two goals only: treatment of the person and protection of the public and
him. He could leave the institution at any time his condition improved, and
once committed as a sexually dangerous person, he was no longer subject to
criminal penalties for his actions.
Though calling the language in Gault "sweeping" and "not good law", that
said the Constitution guarantees that no person shall be compelled to be a
witness against himself when faced with deprivation of his liberty, id. at 372,
the Court was careful to distinguish Gault, by setting forth the case for the
commitment process used for sexually dangerous persons. It did not overrule
any part of Gault that applies to the custodial interrogation of juveniles.
The latest Supreme Court case to apply Miranda to juveniles is J. D.B. v.
North Carolina, 131 S.Ct. 2394 (2011). Indeed, the Court did not even question
whether Miranda applied, but looked directly at the question of whether the
juvenile was in custody, thereby requiring law enforcement to give the
warnings. See id. at 2401. J.D.B. was a 13-year-old student who was removed
from his classroom by a uniformed police officer, escorted to a closed-door
conference room, and questioned by the officer for at least half an hour. A
digital camera which had been stolen from a neighborhood home had been
seen in J.D.B.'s possession. The juvenile investigator from the local police
force went to the school and met with the school resource officer (a police
officer), the assistant principal and an administrative intern about why he was
there to question J.D.B. None of them contacted J.D.B.'s custodian, his
The school resource officer interrupted J.D.B.'s afternoon class, removed
him from the room, and escorted him to the school conference room where the
others were waiting. The door was closed, and he was questioned with the two
police officers (one in uniform), and two administrators present, for 30 to 45
minutes. He was not given the Miranda warnings or an opportunity to speak
with his grandmother, and was not told he was free to leave the room. Initially
there was only small talk about sports and family life, and then J.D.B. was
asked about what he had done the prior weekend which was when the camera
was stolen. He denied any wrong-doing, and said he was in the neighborhood
looking for lawns to mow.
The investigator pressed for more information and told J.D.B. one of the
victims had seen him behind her house, and accused J.D.B. of stealing the
camera. The assistant principal then urged J.D.B. to do the right thing,
warning that the truth always comes out in the end. J.D.B. asked if he would
still be in trouble if he returned the stuff, and the investigator then told him it
was going to court but that J.D.B. could help himself by making it right. The
,investigator threatened to secure a custody order—"where you get sent to
juvenile detention before the court." Id. at 2400. J.D.B. then admitted his
involvement. It was only at that point that he was told that he could refuse to
answer questions and was free to leave.
J.D.B. then wrote a statement and was allowed to catch the bus home
that day. Two juvenile petitions were filed against J.D.B. He filed a motion to
suppress his statements claiming that he had been interrogated in a custodial
setting without benefit of the Miranda warnings. The case worked its way
through the North Carolina court system, and the United States Supreme
Court granted certiorari. Taking for granted that Miranda applied if the child
were in custody, the Court specifically held that a child's age is a factor that
must be considered in doing the Miranda custody analysis, and essentially
approved an "all relevant circumstances" test that is broader than a totality of
the circumstances test. Id. at 2408.
In examining whether J.D.B. was in custody, the majority addressed the
dissent's assertion that the question should simply turn on whether
admissibility of a statement obtained through interrogation should be
determined on the due process voluntariness test alone.
Saying that the Miranda safeguards were put in place because the
voluntariness test alone could not adequately guard against the inherent
pressures of a custodial interrogation, id., and setting forth at length many
ways that children respond differently from mature adults, the majority
concluded that only the full scope of the Miranda protections ensures due
process to children. The Court noted the particular susceptibility of juveniles to
the influence of authority figures and the naturally constraining effect of being
in the controlled setting of a school with its attendant rules. Id. at 2405.
Justice Sotomayor observed that the custody question must be answered
by an objective inquiry: what were the circumstances surrounding the
interrogation, and given those circumstances, would a reasonable person
believe he could terminate the interrogation and leave? And, in the case of
children, the Court found that there were broader considerations, such as the
juvenile's age, which could carry increased weight when determining if a child
is in custody. The Court remanded the case to the state courts to fully
consider all the relevant circumstances of the situation, a standard that the
Court said was more inclusive than the totality of the circumstances test
applied to adults.
Kentucky's Unified Juvenile Code (UJC) tracks these due process
considerations. There are two chapters devoted to accountability of the child
rather than to the accountability of the state to families and children. KRS
Chapter 635, Public Offenders, is mandated to promote the best interests of the
child through providing treatment and sanctions for violation of a criminal
statute. KRS Chapter 640, Youthful Offenders, is aimed specifically at
promoting public safety and holding every child accountable for his or her
conduct which violates criminal statutes. Chapter 635, the Public Offender
chapter, places greater emphasis on character building in the reformation of
the child into a productive citizen than does Chapter 640, but also allows for
and requires incarceration of a child. Chapter 640, Youthful Offender actually
uses the term "delinquent youth." This chapter carries significant punitive
measures because it allows a child who qualifies as a Youthful Offender to be
treated and sentenced as an adult, with an adult record, under adult penalties,
albeit incarceration is in a juvenile detention facility, until the child reaches age
KRS 600.010(2)(g) addresses due process interests for children and
related adults, and articulates that the "rights and interests of all parties ... are
recognized" through appropriate judicial procedures that ensure "prompt and
fair" hearings. Gault noted that there are due process requirements against
self-incrimination when accountability of the child can result in incarceration,
and the UJC recognizes that children can and do commit criminal acts. But it
also recognizes that children have procedural rights that may not be waived by
Our statutes speak to the process designed for juvenile court. If a formal
proceeding is required, the trial court is charged with explaining to the child
and related adults that the child is entitled to appointed counsel, and must
explain the right against self- incrimination by ensuring that the child knows he
has the right to remain silent, and that anything said may be used against
him. KRS 610.060(1)(a),(b).
C. N.C. was entitled to Miranda warnings before he was interrogated.
The facts of this case demonstrate that Appellant was in custody under
the "all relevant factors" test set forth in J.D.B. He was taken from his
classroom by a law enforcement officer, who was clearly identified as such, and
who wore a gun. He was seated in the assistant principal's office, and the door
was shut. The law enforcement officer sat down right beside him, across from
the assistant principal. The assistant principal testified that he expected
Appellant to stay put, which was no doubt conveyed by his demeanor.
Neither the officer nor the assistant principal told N.C. that he was free
to leave. His mother was not contacted and told of the charges until after the
questioning and confession. His first responses indicated that he believed that
he was subject to school discipline. He was initially questioned by the
assistant principal instead of the officer, thereby leading him to believe this
was only a school discipline matter. The record does not indicate a lack of
respect toward the school official indicative of a belief that he did not have to be
there and talk.
This was on its face a school discipline proceeding. The student had no
reason to believe that he was facing criminal charges. The medicine he
brought to school was his legal prescription, and he was apparently aware that
this violated school rules. There is no indication he sold or tried to sell the pills
he gave the other student, and though it was legally sufficient to constitute
possession and distribution charges by giving the pills to the other student,
there is nothing to indicate that he knew this. In fact, the assistant principal
addressed only expulsion proceedings. It was not until the questioning was
over and the confession made that the law enforcement officer told N.C. that he
was placing felony criminal charges against him.
The assistant principal admitted that this was a process that he and the
officer had done in tandem several times before.
It is clear that N.C. was not informed that he did not have to admit to
anything, or even say anything. He was not told in a timely manner that he
faced criminal charges. He was not told that any statement he made would be
used against him in proceeding with the criminal charges.
No reasonable student, even the vast majority of seventeen year olds,
would have believed that he was at liberty to remain silent, or to leave, or that
he was even admitting to criminal responsibility under these circumstances.
Stansbury, 511 U.S. at 325.
Yet it was, in fact, N.C.'s admissions that were the sole basis of any
finding of criminal action by N.C. All relevant factors indicate that N.C. was in
custody, he was interrogated without being informed of his rights, and he
confessed without full knowledge of the consequences for so doing.
If he had been an adult under these same circumstances, there is no
question that the statements would not have been admissible under Miranda.
It also is apparent that the above-noted procedural requirements in place in
the UJC would require the equivalent of Miranda warnings before the court
could take testimony from a child. The clear intent of the statutory proceedings
is to ensure that a child is not led to unknowingly incriminate himself. It
makes no sense that the safeguards required of the court should not apply to
the evidence offered against the child. Such an end run would defeat all
precepts of due process.
Finally, the Commonwealth's argument that N.C. cannot reach the
custodial interrogation question because he did not specifically raise the
question of whether the principal was a state actor, or in other words, acting as
law enforcement, in his motion for discretionary review is not well taken.
Because the assistant principal was acting in concert with the SRO, and they
had established a process for cases involving interrogations of this kind, this
conduct and the SRO's presence make this state action by law enforcement for
Miranda purposes under Mathis, Buster, and Hartsfield, even if the confession
came in response to questions from the assistant principal rather than the
But does it make a difference that there was also a legitimate school
discipline issue involved?
D. Balancing public needs with the child's individual rights.
There can be no question that the task of safeguarding children in our
schools and maintaining appropriate discipline is an issue of paramount public
importance. Education is mandatory, and we entrust our children to the school
system, believing that they will be in an environment that is clean, safe and
conducive to learning. Every parent, indeed, all of society, expects this. That
the easy availability of drugs and more permissive behavior of our youth does
not make this easy is also a given. No one would argue that the school
environment is not complex and demanding on school officials and law
enforcement involved with the schools.
Under the facts of this case, it is apparent that the assistant principal
and SRO carried out a necessary function. A prescription pill bottle for a highly
addictive narcotic was found in the boys' bathroom, and it was empty. School
rules required that all prescription medication be taken to the school nurse for
safekeeping and proper administration throughout the day. Given the location
of the bottle, that rule had clearly been violated. There was also talk that N.C.
had given some pills to another student. That alone made it imperative for the
officials to investigate.
It was also necessary to question the student whose name was on the pill
bottle. But when that student was questioned with more than school discipline
in mind, there was a confluence of the student's rights and the needs of the
school. This is more than mere school discipline situations which do not
involve criminal activity.
Many schools today have "zero tolerance" for drug-related activity, as the
assistant principal indicated was the case here. When viewed in light of
protecting innocent children, this certainly has merit. But the use of zerotolerance policies has caused a dramatic shift away from traditional in-school
discipline towards greater reliance on juvenile justice interventions, not just in
drug cases, but also in common school misbehavior that ends up in the
juvenile justice system. This comes at a significant cost to state agencies and
takes the student out of the normal education process, in addition to putting
these students in contact with students who committed violent offenses, gang
members, or other bad influences. See Marc Levin, Texas Public Policy
Foundation, Schooling a New Class of Criminals? Better Disciplinary
Alternatives for Texas Students, Policy Perspective 7 (March 2006),
http:/ / www.texaspolicy.com/ center/ effective-justice/ reports/ schooling-newclass criminals. It is also arguably a failure of the goals of a statewide
Such policies, which emphasize criminal charges, can serve to change
the nature of questioning a student for purposes of school discipline into a
criminal interrogation. And while a juvenile, unless he or she is a Youthful
Offender, is not convicted of a crime with an attendant criminal record, he or
she is nonetheless given criminal sanctions or incarceration, intended to
punish as much or more than to remedy. When those sanctions or
incarceration are a likely result, then instead of being called a criminal, the
juvenile is called delinquent. But this is a distinction without a significant
difference when it comes to a student's risk of incarceration and his right not
to be led into incriminating himself.
This case presents the Court with the opportunity to balance the
important public policy concerns of educators and parents to provide an
appropriate and safe school environment while still protecting the individual
rights of a child when the child is embroiled in the juvenile justice system. The
legal issue in this case—can the child's answers to questions from a school
official, in the presence and in cooperation with law enforcement, be used
against him in making charges and proving that he committed a criminal
offense?—shows the overlapping nature of the problem.
A balance can be obtained by recognizing the different purposes of
questioning a student. To the extent that school safety is involved, school
officials must be able to question students to avoid potential harm to that
student and other students and school personnel. But when that questioning
is done in the presence of law enforcement, for the additional purpose of
obtaining evidence against the student to use in placing a criminal charge, the
student's personal rights must be recognized. Both purposes were at play in
It is not reasonable to expect a school principal or teacher to understand
all the ramifications of obtaining a confession from a child, nor is it necessary.
For the purposes of school discipline and protecting school safety, such
questions are imminently sensible, and serve the public good. No such
mandatory duty is placed on our educators.
But trained law enforcement is another matter. The only viable reason to
have law enforcement in the schools is to be able to assert peacekeeping and
custodial authority over anyone who behaves in such a way that disorder
ensues or a law is broken. A law enforcement officer is trained to know when
conduct violates the law versus merely being annoying. A law enforcement
officer knows how conduct should be charged, and how to process a criminal
charge. In this case, the law enforcement officer was armed. And, the assistant
principal was working in concert with him.
The presence of law enforcement in schools on a daily basis serves notice
that crimes will be charged for conduct the officer believes violates the law.
This is not inappropriate, but it does change the nature of questioning a child
for school discipline purposes to an improper police interrogation absent
Administering school discipline does not require the participation of law
enforcement. Administering the law does.
Consequently, a proper balance is struck if school officials may question
freely for school discipline and safety purposes, but any statement obtained
may not be used against a student as a basis for a criminal charge when law
enforcement is involved or if the principal is working in concert with law
enforcement in obtaining incriminating statements, unless the student is given
the Miranda warnings and makes a knowing, voluntary statement after the
warnings have been given.
Every custodial interrogation, when law enforcement is involved will not
necessarily invoke the giving of Miranda warnings, for example, if the matter
purely concerns school discipline. There are many school disciplinary matters
where the presence of the law enforcement officer will maintain order and
create a safer environment for the administrator and the student. However,
statements obtained without giving Miranda warnings are subject to
suppression if a criminal charge is brought.
Certainly, all trained law enforcement officers know how to give Miranda
warnings and to ensure that the school official and the child are aware when
criminal charges may be triggered. This is not an undue burden when
measured against the consequences the child faces in the juvenile justice
system or the adult criminal system, which clearly can be punitive. And, this
protection does not prevent a school official from filing a criminal complaint,
though the voluntariness of any confession remains a question of law for the
court in every case, even if Miranda warnings have been given.
Applied to this case, the statements N.C. made before law enforcement
when he was questioned by the assistant principal cannot be used to prove the
truth of the charge against him before the district court, and must be
suppressed because he was in custody and was not given the Miranda
For the foregoing reasons, the decision of the Nelson Circuit Court, which
affirmed the district court, is reversed, and this matter is remanded for further
proceedings consistent with this opinion.
Minton, C.J.; Abramson and Keller, JJ., concur. Abramson, J., also
concurs by separate opinion in which Minton, C.J., joins. Cunningham, J.,
dissents by separate opinion in which Venters, J., joins. Venters, J., dissents
by separate opinion in which Cunningham and Scott, JJ., join.
ABRAMSON, J., CONCURRING: The dissenting opinions raise some
valid points regarding the unique nature of the school setting and the
rehabilitative focus of Kentucky's juvenile justice system, but I believe the
majority opinion embodies the better approach to this thorny issue. Often
when serious school-based events are evolving, it will be unclear whether the
matter will proceed in the juvenile division of district court or in the circuit
court. Consistent with the Miranda Court's objective that rules in this area be
clear, the majority opinion establishes a bright-line rule that gives juveniles the
same protections we afford adults if they respond to a custodial interrogation
without the benefit of Miranda warnings. Moreover, this case illustrates that
even seemingly less serious matters that proceed in the juvenile division of
district court will not always lead to the individual receiving the rehabilitative
benefits of our juvenile system. Young people, like N.C., who "age out" of the
juvenile system may well end up serving time in jail with adults. While those
individuals have an adjudication rather than a conviction, they still experience
adult-defendant consequences. Unless and until the General Assembly
provides a rehabilitative alternative for those individuals who were juveniles at
the time of the offense but who can no longer participate in the juvenile
system, it is inappropriate in my view to deprive them of the protections
afforded adults through Miranda warnings and application of the suitable
As a final note, I would also observe and emphasize that the public safety
exception which allows the admission of certain statements made prior to any
Miranda warnings was recognized in New York v. Quarles, 467 U.S. 649 (1984).
See also Henry v. Commonwealth, 275 S.W.3d 194 (Ky. 2008) (adult
defendant's pre-warning statements admissible where defendant was believed
to have abandoned a gun in an area accessible to the public; admissibility
limited to responses to questions designed to locate and remove gun); Smith v.
Commonwealth, 312 S.W.3d 353 (Ky. 2010) (adult defendant's statement not
admissible under public safety exception because there was no quantifiable
safety threat, simply a vague belief that a gun might be present in the
defendant's apartment). This safety exception has been used in the school
context where there was credible evidence of a gun on school grounds.
Commonwealth v. Dillon D., 863 N.E.2d 1287 (Mass. 2007) (holding that the
public-safety exception applied where a thirteen-year-old middle school student
was found in possession of bullets and, before having been properly
Mirandized, was questioned about a gun).
Minton, C.J., joins.
CUNNINGHAM, J., DISSENTING: I respectfully dissent. It is my position
that the questioning by a school principal in his office of a student suspected of
wrongdoing committed on school grounds does not constitute a police
interrogation as anticipated by Miranda. The presence of a school resource
officer, who by law must be a certified law enforcement officer, does not make it
a custodial interrogation anymore than the presence of a priest would have
made it a church service.
It seems to me that the majority strays from the constitutional path from
the outset. The opinion correctly quotes Miranda in defining interrogation.
"The Court then clarified that 'custodial interrogation . . . mean(s) questioning
initiated by law enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any significant way."'
(Emphasis added). Miranda warnings were not required in this case because
(1) the questioning was not initiated by the law enforcement officer; and (2) the
juvenile was not in the type of custody anticipated by Miranda. The record is
clear that the interview in this case was not initiated by law enforcement
officers, but the principal of the school. With all due respect, I suggest that
extensive discussion by the majority of whether N.C. was in custody is
superfluous and leaps over this first basic requirement. A student in a public
school is always in "custody." The student is not "free" to leave at any time
after he or she arrives at school—in math class, in the hallway or cafeteria.
The nature of the setting is a continuous "custody." Under the compulsory
attendance laws of this state for the education of our young, the whole primary
and secondary educational experience is a "custody" arrangement. KRS
159.010. In legal terms, we call it in loco parentis. But simply being confined
and not at liberty to leave does not automatically transform into the type of
"custody" envisioned by the justices of the U.S. Supreme Court when they
crafted the Miranda decision.
The School Resource Officer (SRO), who is required to be a law
enforcement officer, works for the principal. The principal is not an agent of
A brief history of the arrival of the SRO on the high school scene is
necessary to place his role in this case in proper constitutional context.
KRS 158.440 mandated the following for our schools:
(1) Every student should have access to a safe, secure, and
orderly school that is conducive to learning;
(2) All schools and school districts must have plans,
policies, and procedures dealing with measures for
assisting students who are at risk of academic failure or of
engaging in disruptive and disorderly behavior.
To follow statutory directives, our school boards have sought professional
assistance by the employment of school resource officers. These people have
been invited into our schools to assist the administrators in maintaining law
and order in an environment which has increasingly been infested with
disruptive and even violent behavior.
KRS 158.441(2) defines the SRO as "a sworn law enforcement officer who
has specialized training to work with youth at a school site." The statute also
provides that "jt]he school resource officer shall be employed through a
contract between a local law enforcement agency and a school district."
Present training through the Department of Criminal Justice consists of School
Resource Officer Basic (40 hours) and School Resource Officer Advanced (40
hours). Additionally, the Kentucky Center for School Safety provides
supplemental training each year.
There are three kinds of SROs in Kentucky schools. First are those
assigned by their employing agency to a school through a memorandum of
understanding or other instrument between the law enforcement agency
(sheriff's department or municipal department) and the school district. 2
The funding of the officer is almost always shared between the agency
and the school. Federal grant money often flows into the funding.
The second kind of an SRO is one employed directly by a school district
and assigned to schools (Special Law Enforcement Officers - SLEOs). These
officers' sworn authority comes from KRS 61.900-930 and is commissioned by
the Secretary of the Justice and Public Safety. These officers are certified
peace officers, just as with the preceding category, and meet all preemployment and training requirements of other certified peace officers. The
While it appears that any School Resource Officer Agreement which might
pertain to this case is not of record, the typical agreement authorized by the Kentucky
Department of Education is instructive. It reflects a unique partnership between law
enforcement and school authorities. It requires that the SRO have "specialized
training to work with youth at a school site." The duties of the SRO are numerous,
including the requirement that the officer "attend meetings of parent/faculty and
school functions on request of a principal." Under this agreement, the SRO may be
called upon to "assist in the delivery of instructions in varied subject areas." The
agreement between the district and the law enforcement agency usually outlines
coverage of expenses, days and hours present at the school(s), and other equipment
and engagement provisions. Various elements of the standard agreement are the
subject of further discussion in this opinion. Kentucky Center for School Safety;
http:/ /www.kycss.org .
distinction between this category and the preceding is the employer. In this
case, the school district employs the officer directly and completely.
The third category of an SRO encompasses those law enforcement
officers who are employed by a law enforcement agency and simply assigned to
the school on a rotating basis. There is no distinction between these officers
and the others as far as duties and qualifications.
What is important to point out as to the case before us is that all SROs
are law enforcement officers. And they have special training in the area of
dealing with school and student misbehavior, including criminal conduct.
Their duties cover a multitude of education related chores. These include
monitoring the parking lot, monitoring the lunchroom, clearing the hallways,
counseling students, consulting with administrators, transporting students,
assisting teachers, and even teaching classes. Many act as sponsors for
student organizations. SCHOOL RESOURCE OFFICERS IN KENTUCKY: WHO ARE THEY
AND WHAT Do THEY Do? SURVEY BY KENTUCKY CENTER FOR SCHOOL SAFETY BY
DAVID C. MAY, PHD RESEARCH FELLOW AND YANFEN CHEN, MS DATA COORDINATOR,
The SRO has become as much of the educational environment in our
secondary schools as lunchroom dieticians, guidance counselors, and athletic
While the SRO is technically assigned to the school by the law
enforcement agency, in reality the local school system picks the officer. The
standard agreement provides for an interview committee consisting of the
school superintendent, a member of the Board of Education, a couple of school
principals from the system, and the head of the participating law enforcement
agency. Only those approved by the majority vote of the interview committee
can be assigned to a school as a SRO.
So, in effect, the school system selects the officer to be the SRO. Also,
the school is required to give logistical support for the SRO, including an office,
filing cabinet, phone, and the like. And interestingly, the SRO must be a
volunteer. In other words, a law enforcement agency cannot compel any of its
members to serve as an SRO. The school system demands a "cheerful giver."
Why does all this matter?
It explains how the SROs, who are duly certified peace officers, have
blended into our educational system as to become part of the culture. They are
not going away. They will always be an integral arm of the principals and chief
disciplinarians of our schools. But they are not "cops" in the conventional
sense. Their presence and even assistance in student interviews are not
equivalent to the intimidation of normal police interrogations. Their roles are
education driven. The title itself—"resource" officer—is telling. The description
by the majority that this is a case of "a school official working with the police"
is not completely accurate. It is a school official working with another school
official who is required by law to be a law enforcement officer.
The world has turned around many times in the 46 years since Miranda
was decided. Surely, that Supreme Court did not anticipate that fully trained
and even armed law enforcement officers roaming the halls of our public
schools would become the norm. Sadly, it has not only become the norm, but
a necessity. It is a part of our educational quilt work of varying social and
'cultural duties thrown upon the teachers of our young. Surely, the U.S.
Supreme Court of 1966 could not have envisioned the questioning of a student
by a principal in a high school with a SRO present as being a "custodial
interrogation" requiring constitutional attention.
I believe that supposition is supported by the post Miranda decisions.
Our nation's highest Court has spent the decades since Miranda not expanding
the definition of "custody," but restricting it. See Pennsylvania v. Muniz, 496
U.S. 582 (1990) (finding that Miranda warnings need not be given when
questioning a person incident to the booking process at the police station);
Illinois v. Perkins, 496 U.S. 292 (1990) (holding that Miranda warnings are not
required where an undercover officer is acting as a prisoner for the purpose of
acquiring information from other incarcerated inmates); Berkemer v. McCarty,
468 U.S. 420 (1984) (stating that a roadside traffic stop is not custody within
the context of Miranda); New York v. Quarles, 467 U.S. 649 (1984).
(acknowledging that there is a "'public safety' exception to the requirement that
Miranda warnings be given before a suspect's answers may be admitted into
evidence."); Minnesota v. Murphy, 465 U.S. 420 (1984) (finding that a person on
probation is not in custody for Miranda purposes when he is questioned by a
probation officer, even though the appearance is mandatory); California v.
Beheler, 463 U.S. 1121 (1983) (stating the defendant was not entitled to
Miranda warnings when he voluntarily came to the police station and was free
to leave at any time); Beckwith v. U.S., 425 U.S. 341 (1976) (finding that an
Internal Revenue Service agent did not need to give a private citizen his
Miranda warnings even though the suspect was under criminal investigation
and stated that he felt subject to psychological restraints); Harris v. New York,
401 U.S. 222 (1971) (holding that a statement obtained in violation of Miranda
was still admissible against the defendant for the purposes of impeachment);
Arizona v. Mauro, 481 U.S. 520 (1987) (stating that it was not error to use a
tape recorded conversation between defendant and his wife after defendant
invoked his Miranda rights).
We swim against this constitutional current today by expanding it to
include questioning by school administrators at the expense of school
discipline and order. And our Kentucky Supreme Court does so today without
citing or following one single case of any of the 50 other jurisdictions—state
and federal—that has so held under the facts of this case.
I'm taken back by the statement in the majority opinion that
"administering school discipline does not require the participation of law
enforcement." Sometimes it does not, but with ever increasing frequency it
does. This faulty assumption is rooted in the nostalgia of a much more
innocent time when school discipline was all about classroom disruption,
throwing paper wads and erasers, bathroom graffiti, and playing hooky. That
unrealistic statement is surely not meant for trafficking in hydrocodone as we
have here. Or loaded guns and box cutters. I learn from our juvenile drug
court people that we have 10-year-old students in this state already
experimenting with cocaine and other hard drugs.
One of the cases cited at length by the majority is glaringly
distinguishable from the facts before us. In J.D.B. v. North Carolina, 131 S.Ct.
2394 (2011), a police officer investigating a burglary came to the school to
interview J.D.B. The thirteen-year-old was the prime suspect in the burglary
and had even been questioned previously. Law enforcement, accompanied by
school administrators, removed the juvenile from his classroom and took him
to a conference room and interrogated him. It was a crime committed off the
school property being investigated by the police who came to the school,
initiated, and conducted the interrogation. Those facts are totally different
from the ones now before us.
We cannot deny that there are situations where—as in J.D.B.
interrogation of juveniles required the Miranda admonition, even when it is on
school property. When the investigation is initiated and carried out primarily
by the police for crimes committed off school property, it becomes a law
enforcement action even when it is conducted in a conference room on school
property. In this case, a teacher found the pill bottle and turned it over to the
principal who conducted the investigation and questioning only with the
assistance of the SRO. It was a spontaneous response, demanding immediate
attention and quick resolution with the school administrator fully in charge. It
was not a law enforcement endeavor, and the presence or even assistance of
the SRO does not make it so.
Most assuredly there is a line which can be crossed. It was crossed in
J.D.B. It was not crossed in this case.
What concerns me most in this case is not the cumbersome requirement
of Miranda warnings invading the duties of the school principals charged with
the responsibility of maintaining order and discipline in our places of learning.
They will survive this imposition just as they have survived the scores of other
regulations placed upon them in recent years. What concerns me most is the
danger it bodes for the safety of our children.
When Miranda rights are required to be given, we must assume that
those rights will be invoked. If the Miranda warnings had been given here in
this school setting and had N.C. asserted his right to remain silent, then the
two pills of hydrocodone would not have been recovered. Students would have
The majority, in its final pages, attempts to minimize the far ranging
ramifications of this opinion. Our majority opinion limits the exclusionary rule
only to those school disciplinary investigations where outside criminal charges
are anticipated and there is the presence of a SRO. I would respectfully submit
that that is the most dangerous time when a school administrator should not
be impeded in his or her truth-seeking duties by the imposition of
constitutional restraints. For it is in those critical situations that the safety of
our school children is most imperiled.
Knowing the deep concern and affection my brothers and sisters on this
Court have for children, I'm moved to suspect that the full ramifications of this
decision are not amply recognized.
First of all, I fear that school principals and assistant principals will—
to avoid the dictates of this opinion—be inclined to diminish the needful role of
SROs in their disciplinary investigations. This will not only make their
inquiries less effective, but may also pose a risk to their own personal safety.
In a known emergency, the principal might be able to avoid the Miranda
mandate. I'm not as concerned for the information obtained without Miranda
warnings as the information not received because of the Miranda warnings.
This concern is much more ominous.
Suppose there is a fight in the cafeteria. Two young men—both repeat
offenders with histories of violence and likely headed to outside court—are
brought to the office. The resource officer is asked to be present for the
interview by the principal. Maybe the SRO is even involved in the investigation.
These factors meet all those given by the majority for the requirement of the
Miranda warnings. In attempting to sort out the reasons for the fisticuffs, the
Miranda warnings are given by the principal. The con wise teenager, only
weeks shy of his 18th birthday, asserts the right to remain silent and asks for a
lawyer. What he might have said, had the questioning proceeded
uninterrupted by the constraints we impose here today, was that he had
possessed a loaded Glock in his pocket at the time of the fight. He passed it to
another student before the school authorities arrived on the scene. Now,
thanks to our ruling, there is a loaded weapon within the classrooms of this
school, endangering the lives of hundreds of innocent boys and girls and totally
unknown to the principal. In this day and age, we should not be impairing
school safety by the enlargement of rights of the students. I beseechingly
suggest that we should be more diligent in the protection of our precious
I must, therefore, respectfully dissent.
Venters, J., joins this dissent.
VENTERS, J., DISSENTS: I agree with Justice Cunningham that the
ordinary Miranda-analysis to determine if a statement was made while "in
custody" is not required where a minor admits to a public offense in response
to questioning by a school authority about a school-related issue. However, I
would go further. For the reasons set forth below, I am recommending that
this Court chart a new course. 3
LIMITED APPLICATION OF THE EXCLUSIONARY RULE
In juvenile delinquency cases ("public offense actions" 4 ) adjudicated in
the juvenile division of the District Court, we should exclude probative evidence
under the exclusionary rule only where it "serves to deter deliberate, reckless,
or grossly negligent" police conducts and, in the case of Fifth Amendment
violations, only where the circumstances indicate the statement was actually
involuntarily given or was produced under circumstances that cast doubt upon
its reliability. In such circumstances, and in youthful offender cases
transferred to circuit court for an adult-like trial, the exclusionary rule would
apply in its traditional form. Otherwise, however, the exclusionary rule should
not apply in a juvenile court adjudication. The rule I propose does not conflict
with any provision of the Kentucky Revised Statutes, or any published opinion
3 Attribution for the general information used in this opinion is given to two
scholarly articles: Irene Merker Rosenberg, A Door Left Open: Applicability of the Fourth
Amendment Exclusionary Rule to Juvenile Court Delinquency Hearings, 24 Am. J. Crim.
L. 29 (1996), and to a lesser extent, Bryan Stoddard, New Jersey v. T.L.O.:School
Searches and the Applicability of the Exclusionary Rule in Juvenile Delinquency and
Criminal Proceedings, 2011 B.Y.U. Educ. 86 L.J. 667 (2011).
4 As used in Kentucky's Unified Juvenile Code, a "[Nubile offense action" is "an
action, excluding contempt, brought in the interest of a child who is accused of
committing an offense under KRS Chapter 527 or a public offense which, if committed
by an adult, would be a crime" excluding actions alleging that a child of sixteen years
or older has committed a motor vehicle offense. KRS 600.020(48).
Herring v. United States, 555 U.S. 135, 144 (2009).
of a Kentucky court. 6 It does not offend any part of the Kentucky Constitution
or the Constitution of the United States.
The United States Supreme Court has never explicitly determined that
the exclusionary rule must be applied in typical juvenile court delinquency
cases. That Court's well-established pattern of applying the exclusionary rule
only when the benefit of its deterrent effect outweighs the social costs incurred
when valuable evidence is ignored, has never been applied to this question. I
believe that when that balancing test is applied, it quickly becomes obvious
that the broad, unlimited use of the rule, exacts too high of a cost upon both
the troubled youth and the community that surrounds him, and it fails to
deliver upon the promise of deterring bad police behavior.
In short, the exclusionary rule is antithetical to the overarching
principles for which Kentucky's juvenile court system was established. On the
one hand, it is questionable whether use of the exclusionary rule actually
serves its intended purpose — deterring future misconduct by police, which is
the only rationale given to support the rule. On the other hand, it cannot be
reasonably doubted that allowing a juvenile offender to elude responsibility for
his misdeeds teaches the misleading lesson that sometimes you really can "get
away with crime;" and that, on occasion, "crime really does pay." Applying the
exclusionary rule in a juvenile court public offense action makes sense only to
those who believe that children benefit from the lesson that suppressing the
In Welch u. Commonwealth, 149 S.W.3d 407, 411-12 (Ky. 2004), this Court
ordered the suppression of a juvenile's confession. Welch, however does not conflict
with the view I herein espouse because the juvenile in Welch was being tried as an
adult, not as a public offender in juvenile court.
truth is a good thing, and that slapping a police officer's wrist is more
important than providing a wayward child with the treatment and tools he
needs to lead a responsible life.
As noted, I readily distinguish the typical public offense action processed
to conclusion in the juvenile court from the youthful offender cases that are
transferred to circuit court for trial. Obviously, these two very different
processes are driven by opposing social policies — the former is driven by what
treatment is in the child's best interest; the latter is driven by what punishment
is adequate, in society's best interest, to vindicate the peace and dignity of the
Commonwealth. That critical difference substantially alters the calculus by
which we weigh the efficacy of the exclusionary rule. Given that difference, it is
absurd to say that because the exclusionary rule applies in the latter case, it
must also apply in the former. I would also submit that under the prevailing
U.S. Supreme Court analysis, it is necessary to draw a distinction between the
cases in which a juvenile's inculpatory statements, though ill-advised or
uninformed, were nonetheless voluntarily made, and the cases in which
circumstances, like coercive police conduct, cast reasonable doubt upon the
voluntariness of a youngster's custodial confession. In exclusionary rule
analysis, deterrence of improper police conduct is balanced against the cost to
justice of sacrificing probative proof. It follows that when the police
misconduct is more offensive, the need to secure personal liberty makes us
more willing to pay the cost of excluding valuable evidence. Therefore, I would
apply the exclusionary rule when the objective of the case is the prosecution of
a youthful offender, and in cases where the police acted with a purposeful or a
grossly neglectful disregard of constitutional liberty. In juvenile court
delinquency (or "public offense") actions, where we must focus on the child's
best interest and provide treatment needed to improve his condition, we cannot
afford to exclude evidence from the judge's consideration simply because, as in
this case, a child was not advised of his right to remain silent.
A fair consideration of this view must begin with a brief overview of the
exclusionary rule's development.
I. DEVELOPMENT OF THE EXCLUSIONARY RULE: OPINIONS OF THE
UNITED STATES SUPREME COURT
The exclusionary rule is a judicially created means of deterring police
misconduct that violates Fourth and Fifth Amendment protections.
Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998)
(citing United States v. Calandra, 414 U.S. 338, 348 (1974)). It is not a
personal constitutional right in itself; it was not designed to redress the injury
of constitutional violations; instead, the rule operates to deter future violations
by depriving the government of the fruits of such infringements.
Williams, 507 U.S. 680, 686 (1993) (quoting Stone v. Powell, 428 U.S. 465, 486-
93 (1976) and Linkletter v. Walker, 381 U.S. 618, 637 (1965)); see also Elkins v.
United States, 364 U.S. 206, 217 (1960) ("The rule is calculated to prevent, not
to repair. Its purpose is to deter — to compel respect for the constitutional
guaranty in the only effectively available way — by removing the incentive to
The exclusionary rule has been a reluctantly-applied, "last resort" 7
measureimposedincrimnalcase despiteits ubstanialcost ojusticeand
public safety, because it is necessary in the long term to protect constitutional
liberty from governmental abuse. A review of the rule's development typically
begins with Weeks v. United States, 232 U.S. 383 (1914).
In Weeks, a United States marshal in the company of local police officers,
without a warrant, "invade[d] the house and privacy of the accused" while he
was away and seized his documents. The United States Supreme Court held
that the purloined papers should have been returned to the accused, and could
not be used as evidence in a federal criminal trial.
Id. at 398. The Supreme
Court noted that the Fourth Amendment's "limitations" restrained only the
conduct of federal officials, not state officials.
Id. In Mapp v. Ohio, 367 U.S.
643 (1961), the Supreme Court applied the exclusionary rule to Fourth
Amendment violations by state officers. Just before Mapp, the Court reached
the same conclusion with respect to the Fifth Amendment right against
involuntary self-incrimination. It held in Rogers v. Richmond, 365 U.S. 534,
544 (1961) that a confession "not freely self-determined" because it was
obtained by conduct of state law enforcement officials intended "to overbear a
suspect's will to resist" violated the Fifth Amendment and could not be
admitted in state court criminal trials.
Rogers set the stage for the well-known Miranda v. Arizona decision, in
which the Supreme Court resolved that unless an individual in custody was
"warned prior to any questioning that he has the right to remain silent, that
Hudson v. Michigan, 547 U.S. 586, 591 (2006).
anything he says can be used against him in a court of law, that he has the
right to the presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so desires . . . no
evidence obtained as a result of interrogation can be used against him."
Miranda, 384 U.S. 436, 479 (1966).
In subsequent cases, the Supreme Court has refused to apply the
exclusionary rule in the following kinds of cases:
a. Grand Jury Proceedings — United States v. Calandra, 414 U.S. 338
b. Deportation Proceedings — INS v. Lopez-Mendoza, 468 U.S. 1032
c. Parole Revocation Hearings — Pennsylvania Bd. of Probation and Parole
v. Scott, 524 U.S. 357 (1998);
d. Civil Tax Proceedings — United States v. Janis, 428 U.S. 433 (1976);
e. Officer's Good Faith Action — United States v. Leon, 468 U.S. 897
(1984); see also Herring v. United States, 555 U.S. 135 (2009) (the
exclusionary rule was not applicable where police conducted a search
pursuant to an arrest warrant, not knowing that the warrant had been
f. Violations of the knock and announce rule — Hudson v. Michigan, 547
U.S. 586 (2006).
The determination of whether and when the exclusionary rule is applied
is not random. The Supreme Court has determined that whenever it considers
whether to extend the exclusionary rule beyond its traditional criminal trial
origin, it will subject the competing societal interest to a balancing test.
II. EXTENSION OF THE EXCLUSIONARY RULE — A BALANCING TEST
Because the purpose of the rule is to act as a deterrent, "it has never
been interpreted to proscribe the introduction of illegally seized evidence in all
proceedings or against all persons." Stone v. Powell, 428 U.S. 465, 486 (1976).
Instead, its application "has been restricted to those areas where its remedial
objectives are thought most efficaciously served."
Calandra, 414 U.S. at 348.
In Janis, the Court said, "NI' ... the exclusionary rule does not result in
appreciable deterrence, then, clearly, its use in the instant situation is
unwarranted." 428 U.S at 454. Because "the [exclusionary] rule is prudential
rather than constitutionally mandated" the Court "held it to be applicable only
where its deterrence benefits outweigh its 'substantial social costs."'
U.S. at 363 (citing United States v. Leon, 468 U.S. 897, 907 (1984)).
This cost vs. benefit test for determining where the exclusionary rule
applies remains the critical factor in Supreme Court analysis. For example,
when the Court rejected the application of the exclusionary rule to "knock-and
announce" violations by police in Hudson v. Michigan, 547 U.S. 586 (2006), it
Suppression of evidence, however, has always been our last resort, not
our first impulse. The exclusionary rule generates "substantial social
costs," which sometimes include setting the guilty free and the
dangerous at large. We have therefore been "cautio[us] against
expanding" it, and "have repeatedly emphasized that the rule's 'costly
toll' upon truth-seeking and law enforcement objectives presents a high
obstacle for those urging [its] application." We have rejected
"/i]ndiscriminate application" of the rule, and have held it to be applicable
only "where its remedial objectives are thought most efficaciously served,"
— that is, "where its deterrence benefits outweigh its 'substantial social
Id. at 591. (citations omitted) (emphasis added).
"Proposed extensions of the exclusionary rule to proceedings other than
the criminal trial itself have been evaluated and rejected under the same
analytic [balancing test] approach." Leon, 468 U.S. at 909. Noting again that
the benefit of deterrence achieved by excluding valuable evidence must be
weighed against its substantial social costs, the Court, in Herring reiterated
that the exclusionary rule "serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or systemic negligence."
555 U.S. at 144. The Court then added: "To trigger the exclusionary rule,
police conduct must be sufficiently deliberate that exclusion can meaningfully
deter it, and sufficiently culpable that such deterrence is worth the price paid by
the justice system." Id. (emphasis added).
The United States Supreme Court has yet to consider explicitly whether
the exclusionary rule should be applied to exclude the un-Mirandized
statements of a juvenile suspect from a "public offense action" (or routine
delinquency case). The Court has never conducted the analysis required by
Hudson, Leon, Herring, Scott, Stone, Lopez Mendoza, and Calandra; that is, it
has never weighed the likely deterrent benefits of applying the rule against the
societal costs of depriving juvenile court judges and caseworkers of essential
evidence needed to stop the descent of a young person into a criminal lifestyle.
The Court has also not evaluated the effect of the exclusionary rule upon the
strong public policies expressed by state legislatures, such as the policies
codified in Kentucky's Unified Juvenile Code.
The Supreme Court approached the issue of the juvenile courts' use of
the exclusionary rule in Fare v. Michael C., 442 U.S. 707 (1979). However, its
decision in that case affirmed the juvenile court's determination that the child's
rights were not violated and thereby eliminated any exclusionary rule concerns.
In the case of New Jersey v. T.L.O, 469 U.S. 325 (1985) the Supreme Court
granted certiorari to address that very question of exclusionary rule
applicability in the juvenile court setting. Again, the Court concluded that no
constitutional rights of the child had been violated, and so it declined to
address the broader issue of the exclusionary rule. Most recently, in J.D.B. v.
North Carolina, 131 S. Ct. 2394 (2011), the Court held that the age of a child
questioned by police should factor into the determination of whether the child
was in "custody" for purposes of providing Miranda warnings. The child's age
mattered, the Court said, when deciding if the juvenile's "will was overborne"
by the circumstances of the police interrogation. The Court's concern arose
from its observation that "the pressure of custodial interrogation" can be so
immense as to induce a "frighteningly high percentage of people to confess to
crimes they never committed[,]" a risk all the more troubling and acute when
the subject being interrogated is a juvenile. Id. at 2401. By remanding the
case for the state courts to determine whether the child was "in custody," the
Court again .evaded the larger question of whether the exclusionary rule should
bar the juvenile court's consideration of every un-Mirandized statement in a
One could, upon conjecture, speculate that the Court would not have
remanded the case if it had thought the exclusionary rule was inapplicable in
the juvenile proceeding. But, of course, if the child was not in custody the
question of excluding un-Mirandized evidence is immaterial. A more plausible
assessment might be that since the Court has never applied its prescribed
balancing test to determine if the exclusionary rule applies in a juvenile court
case, the Court has purposefully left that question unresolved. In any event,
nothing in J.D.B is inconsistent with the directive in Herring, supra, that "to
trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system."
The question that remains is whether likely benefits to constitutional
liberties that might be derived from deterring the un-Mirandized interview of
juvenile suspects is worth the price paid first, by juvenile offenders who
thereby evade the therapies of the juvenile court system, and second, by the
community at large, which ultimately bears the costs of un-atoned juvenile
III. APPLICATION OF GAULT
RIGHTS OF JUVENILE SUSPECTS
The position asserted herein is in no part dependent upon the
supposition that the juvenile has no cognizable Fourth and Fifth Amendment
Rights, and Due Process Rights under the Fourteenth Amendment.
Unquestionably they do. But having such constitutional protections does not
equate to having the "benefits" of the exclusionary rule. If it did, the rule would
extend universally to deportation hearings, parole revocations, civil actions,
and wherever else one may suffer the use of ill-gotten evidence.
The landscape of juvenile court adjudication changed for the better with
the Supreme Court decision in Application of Gault, 8 387 U.S. 1, 17 (1967).
Gault established with clarity that the Fourth Amendment protection against
unreasonable search and seizure, the Fifth Amendment protection against
being compelled to give evidence against oneself, and the Right to Due Process 9
Id. at 31-57. These basic
constitutional rights include the right to notice of charges, the right to counsel,
the privilege against self-incrimination, and the right to confrontation. The
Court in Gault intimated, but did not explicitly state, that evidence obtained in
violation of the juvenile's rights could be excluded from the evidence used to
determine his guilt. The Court based its conclusion upon the fact in Gault that
the juvenile being "tried" was exposed to very adult-like punishment. Even
though the juvenile would not be "convicted" of a crime like an adult, but
would merely be labeled as "delinquent," the child in Gault was "subjected to
the loss of his liberty for years[,]" a punishment the Court found to be
"comparable in seriousness to a felony prosecution." Id. at 36.
Gault was a 1967 case, and since then much has changed in juvenile
adjudication, in large part because of Gault. Under modern juvenile justice
codes, the juvenile would be subjected to the youthful offender process, as
provided for in KRS Chapter 640. Under the view I assert herein, the
This case is often referred to as "In re Gault." Westlaw designates the style of
the case as "Application of Gault" and I adopt that convention herein.
Due Process includes the right to fair notice of the charges, an opportunity to
be heard, a right to legal counsel, the right to confront witnesses, and in juvenile
adjudications, the " beyond reasonable doubt standard" of proof. In re Winship, 397
U.S. 358 (1970).
exclusionary rule would apply in cases like Gault, what we call youthful
offender prosecutions, just as it applies for any adult being prosecuted for a
felony in circuit court. But a different procedure driven by a different
legislative policy drives the typical juvenile court "public offender action" in
Kentucky, where KRS 635.060 limits the public offender's punishment of
detention, regardless of the seriousness of the offense, to "an approved secure
juvenile detention facility, juvenile holding facility, or approved detention
program" for a period of not more than forty-five days for children between
fourteen to sixteen years of age, and not more than ninety days for sixteen and
seventeen year olds. The dissimilar treatment reflects the different social policy
at work, and thus is tried under a different procedure that merits special
consideration of what and when the court must ignore highly probative
evidence. The point is, as Gault well-establishes, juveniles have constitutional
protections akin to those of adults, and when they are confronted with adultlike criminal prosecution and adult-like punishment, the exclusionary rule
applies. But when different circumstances exist, different considerations are
present, and different rules apply — as in the deportation, parole revocation,
and tax cases.
IV. KENTUCKY LAW
APPLYING THE BALANCING TEST
We cannot properly apply the exclusionary rule in Kentucky juvenile
court actions without having considered its effectS and its social costs on the
important public policy objectives embedded in Kentucky's juvenile code. This
Court has previously recognized the distinct policy goals that distinguish the
adult justice system from the juvenile justice system. "The Juvenile Code was
enacted with the stated goal of rehabilitating juvenile offenders, when feasible,
as opposed to the primarily punitive nature of the adult penal code."
Commonwealth, 125 S.W.3d 237, 240 (Ky. 2004) (emphasis added).
As discussed above, the United States Supreme Court cautions against
over-extending the exclusionary rule because of its "costly toll upon truthseeking and law enforcement objectives." Hudson, 547 U.S. at 591. In juvenile
court public offender actions, "truth-seeking" is not just a laudable goal, a
hoped-for result; it is the statutorily-mandated, "law enforcement objective" of
the juvenile court judge. KRS 610.080(1) directs that "[t]he [public offender]
adjudication shall determine the truth or falsity of the allegations in the
petition[.]" (emphasis added). In an adult prosecution or a youthful offender
trial the jury determines only if guilt has been established beyond a reasonable
doubt. The jury never determines if the charge is, in fact, "true or false." The
purpose of the juvenile court statutes is to "promote the best interests of the
child through providing treatment and sanctions to reduce recidivism and
assist in making the child a productive citizen by advancing the principles of
personal responsibility, accountability, and reformation, while maintaining
public safety, and seeking restitution and reparation[.]" KRS 600.010(2)(e).
Therefore, finding the "truth or falsity" of the accusation is absolutely critical to
providing the effective and responsible treatment directed by the legislature.
When the truthfulness of the juvenile adjudication is skewed by the
artificial rejection of credible and highly-probative evidence, the social policy to
be implemented by the statute is thwarted. Ignoring a fact so important as a
credible, but ill-advised and uninformed admission in a juvenile action also
impedes that directive of KRS 600.010(2)(d) that mandates, "[a]ny child
brought before the court under KRS Chapters 600 to 645 shall have a right to
treatment reasonably calculated to bring about an improvement of his or her
condition[.]" It can fairly be said that depriving the juvenile court of critical
information about a wayward child's expression of culpability defeats the
court's ability to deliver "treatment reasonably calculated to bring about an
improvement" in the child's condition. It is worth noting that our system of
criminal justice for adults has no analogous public policy. Forcing Kentucky's
district court judges and juvenile court caseworkers to ignore the most
probative proof of a juvenile's wrong-doing, simply because he was not
informed of his Miranda-rights, defeats that strong policy and makes it nearly
impossible to provide the treatment and sanctions needed to serve the "best
interests of the child."
In Kentucky, juvenile adjudications are not considered criminal matters,
they are civil cases. They do not result in the permanent stigma that attaches
by way of a criminal "conviction" or judgment.
See Manns v. Commonwealth,
80 S.W.3d 439, 445 (Ky. 2002) ("a juvenile adjudication is not a criminal
conviction, but an adjudication of a status."). KRS 635.040 provides:
No adjudication by a juvenile session of District Court shall be deemed a
conviction, nor shall such adjudication operate to impose any of the civil
disabilities ordinarily resulting from a criminal conviction, nor shall any
child be found guilty or be deemed a criminal by reason of such
What, then, is the beneficial deterrent effect to be gained by applying the
exclusionary rule in juvenile court cases? It would certainly be no greater than
the beneficial deterrence achieved by enforcing the exclusionary rule in adult
cases. So, with a greater public policy at work in juvenile cases to favor
inclusion of "tainted" but credible evidence, and no offsetting increase in the
beneficial deterrent effect of exclusion, the scale tips against the use of the
exclusionary rule in juvenile court cases. One scholarly article even suggests
the deterrence effect would be even less effective.' 0 Professor Rosenberg
suggests that beneficial deterrence of the exclusionary rule may diminish in
juvenile cases because police officers, recognizing the heightened importance of
arresting a juvenile for criminal conduct, may proceed with a warrantless or
otherwise doubtful search, in order to "protect a youngster," trusting that
parents or court officials can still find a way to render appropriate corrective
measures. Rosenberg also suggests that the juvenile adjudications have a
lesser "cachet" for police than adult convictions. As a result they may be less
concerned about upholding the validity of a juvenile adjudication, therefore less
likely to be deterred by the threat of evidence suppression. The fact that
children in juvenile court receive milder "punishment" than adult offenders
leads some police officers to be indifferent about winning a "conviction" and
consequently, less apt to be careful in perfecting their collection of evidence.
For me, the balancing test weighs heavily in opposition to applying the
exclusionary rule in juvenile court cases, except as noted in the opening
section of this opinion. My opinion is informed not only by my review of the
applicable opinions of other courts, but also by my experience as district court
judge presiding over countless juvenile court adjudications between 1979 to
Irene Merker Rosenberg, supra note I.
1984. I am aware that much has changed since then concerning the law and
the culture in which children learn the habits that will either make them
trustworthy, responsible and productive adults or will make them criminals;
however, I do not believe that basic human nature has changed. I realize that
limiting the exclusionary rule as I propose may result in many children crying
"foul" and saying "it's not fair" 11 when wrongful invasions of their privacy or
their un-Mirandized statements are used by the juvenile judge to apply
corrective treatment. But with maturity, they will recognize the greater lesson
learned was in becoming responsible for their own conduct. On the other
hand, when the exclusionary rule is applied, and the child sees his own
admissions of culpability, or the stolen goods found in his car, being swept
under the rug as if they never existed, a different lesson is learned - the lesson
that they can get away with a crime or that crime does pay off in the end. I
would urge the Court to adopt the policy that teaches the former lesson, and
avoids the latter lesson.
In "public offender actions" adjudicated in the juvenile division of the
district court, probative evidence should be excluded by the exclusionary rule
only where it "serves to deter deliberate, reckless, or grossly negligent" police
conduct 12 and, in the case of Fifth Amendment violations, only where the
circumstances indicate the statement was actually involuntary given or was
produced under circumstances that cast doubt upon its reliability. Of the few
Irene Merker Rosenberg, supra note 1.
Herring, 555 U.S. at 144
states that have explicitly addressed the issue as I have framed it, I have found
none that limit the use of the exclusionary rule as I suggest. But the same was
true of every "landmark" decision when it was made. After all, the purpose of a
landmark is to show others the way.
Compelling the use of the exclusionary rule in juvenile court cases like
the one at hand sacrifices important policy objectives designed to improve the
condition of troubled youths for the dubious expectation that it will improve
the conduct of police officers. For the reasons stated above, I dissent.
Cunningham and Scott, JJ., join.
COUNSEL FOR APPELLANT:
Robert Kenneth Strong
Kentucky Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, Kentucky 40601
Renee Sara Vandenwallbake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Terry Lane Geoghegan
116 E. Stephen Foster Avenue
Bardstown, Kentucky 40004
John Samuel Kelley V
Special Asst. Attorney General
202 E. Stephen Foster Avenue
PO Box 69
Bardstown, Kentucky 40004
Defendant was a juvenile who admitted giving hydrocodone to another student. Defendant's confession was made directly in answer to questions from the school assistant principal, who was working with a deputy sheriff (School Resource Officer or SRO), also present. The SRO did not read Defendant his Miranda rights before the questioning. Defendant was subsequently charged with possessing and dispensing a controlled substance, a felony, in a juvenile petition. After unsuccessfully filing a motion to suppress, Defendant entered a conditional guilty plea to the charge. Defendant subsequently appealed the denial of his motion. At issue before the Supreme Court was whether a student is entitled to the benefit of the Miranda warnings before being questioned by a school official in conjunction with a law enforcement officer, the SRO, when he is subject to criminal charges. The Supreme Court reversed, holding that the statements Defendant made before law enforcement when he was questioned by the assistant principal must be suppressed because he was in custody and was not given the Miranda warnings.Receive FREE Daily Opinion Summaries by Email