What Is “Custody” for Young Teens in Child Welfare, Criminal Cases?

The U.S. Supreme Court heard two cases last month about interviews of children at school.  One concerned allegations of sexual abuse – the girl being interviewed was the alleged victim. The other involved a young teen suspect in a burglary. Arguments in both cases centered on what constitutes “custody” in such cases.

And the arguments didn’t entirely match up.

In the child welfare case, the custody questions revolved around whether the inherent “custody” of the school was really intensified by the interrogation of the young girl by a social worker, as an armed police officer sat silently nearby, and whether those circumstances required officials to obtain a court order before speaking with the child.

In the criminal case, the emphasis was on whether the young suspect’s age or apparent comprehension of the proceedings should affect the decision to give him at Miranda warning about his rights during a school interview. Suspects who are “in custody” must be given a Miranda warning of their rights.

The criminal case, J.D.B. v North Carolina, involves a 13-year-old boy who was questioned by police at his school in connection with two home burglaries. The teen was questioned in a closed (but not locked) room, in the presence of a police investigator, a police officer stationed at the school and an assistant principal.

J.D.B. initially denied being involved in the crimes and was advised by the assistant principal to “do the right thing.” J.D.B. was then told by the investigator that the case would be going to court and that he might be detained before trial, at which point the boy said he committed the crimes.

The investigator then told J.D.B. that he did not have to answer further questions and was free to leave. The teen continued to answer questions until the end of the school day and then went home.

The basic test established by Miranda v Arizona for considering whether a person is in custody is to assess “how a reasonable man in the suspect’s position would have understood his situation.”

Barbara Blackman, arguing for J.D.B., said the age of a suspect is an objective factor that “must” be taken into account.

Some of the justices questioned Blackman on exactly what group she wanted the high court to address.

“Is there to be one different Miranda requirement rule for all minors?” asked Justice Antonin Scalia. Or, he asked, would she suggest a specific age range for which age must be a factor, such as 20 years old or 17 years old?

 “We did not suggest that it be calibrated by age,” Blackman responded.

If not by age, Scalia countered, “how is it to be calibrated?” Blackman proposed that judgment and common sense should govern how age was considered by law enforcement.

Supporters of J.D.B.’s case argued it is unreasonable to expect youths to have the same comprehension of their rights as adults when youths are involved in noncustodial questioning by the police.

Do youths realize they can leave?

“What is the likelihood of a child in that situation saying, ‘I don’t want to answer these questions; I’ll walk out of this room right now?’ ” asked Martha Levick, whose Juvenile Law Center filed a brief supporting J.D.B. “The notion that a 13- or 14-year-old, you would expect to have the same perception as an adult – it’s silly.”

Several of the justices seemed to accept that very young children would have trouble comprehending that they were free to leave an interrogation at the same level as an adult. Justice Anthony Kennedy said it was hard to make a connection between a “reasonable man,” as the Miranda instructions state, and “a seventh-grader in a social studies class.”

Justice Samuel Alito wondered whether that exception should extend beyond youths as young as J.D.B.

“Sympathetic cases can make bad law,” he said. “So take the same set of facts, and let’s hypothesize that this is a 15-year-old. Would the 15-year-old appreciate that he could go? Or make him a street-wise 17-year-old.”

North Carolina Attorney General Roy Cooper argued on behalf of the state. Justice Stephen Breyer asked Cooper what would be so hard for law enforcement if age became a Miranda factor.

“School resource officers, there are thousands of them … often counsel kids, as well as protect the school,” Cooper said. “Under the petitioner’s theory, a school resource officer who is going to take a juvenile into a room to talk about a stolen cell phone or bullying, the first thing that he’s got to say is, ‘You have the right to remain silent.’ ”

Why not have the first thing be a clear advisory that the youth was free to leave if he wanted, Breyer asked?

“Well, he may not want him to go,” Cooper said to some laughter from the gallery.

“He’s not free to leave?” Breyer shot back. “OK. Well, then, why not warn him?”

Breyer suggested, as he has in previous Miranda cases, an “open test” of objectivity when it came to Miranda, meaning that anything about a subject that would be readily known to both an officer and a suspect, including age, should be considered an objective factor for determining custody.

He asked Blackman if she agreed with that sort of test.

“Conceptually, absolutely,” Blackman replied.

Cooper was joined during oral arguments by Eric Feign, assistant to the U.S. solicitor general, who argued in support of North Carolina, on behalf of the Obama administration.

“I was surprised that the solicitor general came in at all, and that they came in on the side of North Carolina,” said Levick.

In addition, a group of 30 states filed an amicus brief supporting North Carolina’s position on not using age as a factor, but expressed recognition that the school setting might be reasonable to consider in determining custody.

“That the interview took place on school grounds is a legitimate objective factor that plays into the custody determination,” the brief stated. “Depending on the circumstances of the school, this factor may weigh in favor of custody or against it.”


Oral arguments before the U.S. Supreme Court in the first of two cases last month about how state officials can interact with youth on school grounds were dominated by a wholly separate legal issue.

Camreta v. Greene and Alford v. Greene, which were combined, involve a young girl identified as “S.G.,” who was 9 years old when she was interviewed at length at her school by a child protection worker – while an armed police officer sat silently in the room – about alleged abuse by her father.

At issue in the Greene cases is the girl’s Fourth Amendment right against unreasonable seizure. Lawyers for S.G. persuaded the Ninth U.S. Circuit Court of Appeals to rule that “the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances, or parental consent, was unconstitutional.”

However, the Ninth Circuit also determined that the petitioners in the cases – Oregon Department of Human Services investigator Bob Camreta and Deschutes County Deputy Sheriff James Alford – had qualified immunity because the violation of rights did not defy “clearly established” law.

The oral arguments became largely a referendum on whether it was appropriate for the high court to make a ruling in a case where neither side had a direct interest in the outcome. The petitioners have received qualified immunity, and the respondent, Justice Antonin Scalia said, “doesn’t care what happens. She’s moved; she is 17 years old.”

Oregon Attorney General John Kroger argued that S.G. has a lawsuit against Deschutes County (Ore.), that has been held in abeyance pending a decision by the high court.

S.G.’s lawyer, Carolyn Kubitschek, immediately conceded that there was “no controversy” for S.G., and that the decision in this case would not affect the lawsuit against Deschutes County.

“Then why are you here?” Chief Justice John Roberts shot back.

“We’re not here voluntarily,” Kubitschek replied to laughter from the audience and justices.

How to decide

The justices eventually turned to the Fourth Amendment issue during Kubitschek’s argument, and their questions indicated some skepticism about how to provide clarity on how non-school officials should proceed in child welfare cases.

Asked what she would recommend the court do, Kubitschek said that it should be established that a “long interview” with a child should be considered “presumptively unconstitutional” without a warrant, court order or exigent circumstances.

That prompted several questions about how the length could matter, when the workers would have to get court approval for the interview before it began.

“So a child protection worker passing in the hall” could ask a child about abuse, “and that’s OK?” Scalia asked. “But a long interview is not?”

Another concern expressed by justices was over which interrogations might constitute a seizure, and which would not. Both parties in the Greene cases conceded that a seizure occurred, but Kubitschek was peppered by Scalia and Justice Stephen Breyer with hypothetical examples of different categories of people who might ask about abuse: a nurse employed by the school, a nurse who was employed by someone else but served the school, a child protective services investigator who was not accompanied by police.

“We can’t adopt a rule when we don’t know what we’re talking about,” Scalia said.

“I was surprised,” Kubitschek said afterward about the justices’ interest in the defining aspects of seizure. “Because both sides had conceded it, I thought it was kind of off the table, but it obviously was not. It was very much on the justices’ minds.”

The Greene cases drew numerous amicus briefs on both sides. The Obama administration, along with 40 states and the National Association of State Social Workers, filed on behalf of Oregon.

The administration took the view that, regardless of who the state official was, the ends justifies the means when it comes to interviewing children on school grounds about abuse in the home.

“Particularly when balanced against the importance of investigating child abuse and the impossibility of doing so if probable cause or parental consent is required, the severity of the interference with individual liberty of a reasonable in-school interview is not great,” said the administration’s brief, written by Acting U.S. Solicitor General Neal Katyal.

Since public schools retain custodial authority over children during the school day, any liberty restriction imposed by an interview within the school during the day is “at most, minimal,” said the administration’s brief.

The brief continued: “Though the interview may require the child (in order to protect her privacy) to go to a special room, the interview does nothing to change the pre-existing restraints on the child’s freedom that are imposed by the school. Those restraints, which are ancillary to the interview itself, do not factor into the Fourth Amendment calculus.”

More than a dozen organizations filed briefs in behalf of S.G., including such unlikely bedfellows as Eagle Forum Educational & Legal Defense Fund and the Juvenile Law Center.


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