Criminal Law Questions? Ask a Criminal Lawyer.
Hi - my name is XXXXX XXXXX I'm a Criminal Law litigation attorney.
If they didn't read him his rights, then anything that your son told them should not be available to use against him in the prosecution of this offense.
It is not illegal for the officers to talk to your son, and it's not illegal for them not to read him his rights, but it is illegal to use anything he said against him since he was not read his rights.
As for the officers inspecting the situation in the first place, the officers/state prosecutor would have to prove that there was probable cause. Generally, probable cause is a very low standard and only requires the officer to suspect that some illegal activity is occurring in order to justify the inspection/inquiry.
Thus, if the officer says that the other guy looked at him with a startled face, that's probably enough justification for the officer's approach and inspection.
The good news is that these charges should be minor/misdemeanor offenses. However, a local criminal defense attorney can probably work a deal with the prosecutor to minimize the penalty. Also, because he is a minor, this offense should not go on his permanent record since it is wiped clean when he turns 18.
I just cant fathom that Miranda rights don't seem to mean anything anymore. I understand that they cant use anything he said against him but I thought the pure fact that they questioned him without reading him his rights and allowing me to be present was a clear violation of my son;s rights. Why doesn't that mean anything? And it is a case of their word against my sons. The friend never saw the police until they were opening his door. They didn't knock on the window and ask him to step out, they just opened the door. My son is an honor roll senior in high school who has held the same job for over a year and has never been in any kind of trouble ever. What kind of lesser violation could he plead to other than a misdemeanor and from what I have understood, it does not get erased from his record when he turns 18 in North Carolina. And what kind of recourse to I have against them for losing the ID's?
Miranda Rights absolutely mean something, but there is no legal requirement for them to be read to a suspect. Often, they're not read because the officers don't interrogate the suspect; they just arrest and book them and leave it to the lawyers to deal with the questioning.
It is a common misunderstanding that an officer's failure to read a suspect his/her Miranda Rights will be grounds to dismiss the charges. This is simply not true, unfortunately. The officer only has to read a suspect his/her Miranda Rights
IF the officer wants to use the statements made as evidence at the trial. Here's a good link that you can read about Miranda Warnings and the legal effect: http://www.mirandawarning.org/mirandawarningfaq.html
I didn't know what state you were in, but most states clear a minor's record upon reaching the age of majority.
In a case like this, an attorney could likely work a deal for deferred adjudication or pre-trial diversion, which would mean that your son could complete probation, go to some classes, etc. and have the charges dropped upon completion of the program criteria. This would keep the charge/offense from ever going on his record. If he is a first time offender, that would be something available to him.
The web site you shared the link to says nothing about a minors rights. This is my concern. They attempted to get my MINOR son to give them information that may or may not have incriminated him further without informing him of his rights to have his parent present or his right to say nothing at all. They questioned him for an hour (this was an auxiliary officer) trying to get him to divulge where he bought, who he bought from, how often he did it and I am afraid he did say some incriminating things that could be used against him.
There's no difference between minors and adults when it comes to this.
Generally, officers are allowed to question minors without their parents approval and without their parents being present. There is no requirement that parents must consent before their children are interviewed by the police.
However, the minor must be read his/her Miranda Rights in order for the statements made to be used against the minor in court.
This is the North Carolina General Statute with regard to the questioning of a minor. Does this not give me ANY leg to stand on for dismissal?
§ 7B‑2101. Interrogation procedures.
(a) Any juvenile in custody must be advised prior to questioning:
(1) That the juvenile has a right to remain silent;
(2) That any statement the juvenile does make can be and may be used against the juvenile;
(3) That the juvenile has a right to have a parent, guardian, or custodian present during questioning; and
(4) That the juvenile has a right to consult with an attorney and that one will be appointed for the juvenile if the juvenile is not represented and wants representation.
(b) When the juvenile is less than 14 years of age, no in‑custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardian, custodian, or attorney. If an attorney is not present, the parent, guardian, or custodian as well as the juvenile must be advised of the juvenile's rights as set out in subsection (a) of this section; however, a parent, guardian, or custodian may not waive any right on behalf of the juvenile.
(c) If the juvenile indicates in any manner and at any stage of questioning pursuant to this section that the juvenile does not wish to be questioned further, the officer shall cease questioning.
(d) Before admitting into evidence any statement resulting from custodial interrogation, the court shall find that the juvenile knowingly, willingly, and understandingly waived the juvenile's rights. (1979, c. 815, s. 1; 1998‑202, s. 6.)
This statute is in regard to using statements of a minor against him/her that were made to the authorities. If the minor's rights were not read to him/her then your son would have the right to file a motion to suppress the evidence based on him not being provided this warning (which is basically the same as Miranda).
However, this doesn't provide grounds to toss the charges. It just allows your son the right to suppress any evidence or statements that came from an interrogation that didn't involve his Miranda warnings.
Below is the statute with annotations that you can read about previous decisions and the relief allowed if the statute is violated:
APPLICABILITY OF SECTION. --Whether defendant is a juvenile delinquent is irrelevant to a consideration of whether he is entitled to the protections of former G.S. 7A-595. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).
The rights afforded under this section to be informed of Miranda rights, as well as to have a parent, guardian, or custodian present during questioning, apply only to a person defined to be a juvenile under G.S. 7A-517 (see now G.S. 7B-101), i.e., a person under the age of eighteen who is neither married, ancipated, nor in the military. State v. Brantley, 129 N.C. App. 725, 501 S.E.2d 676 (1998). "GUARDIAN." --Confession of 13-year-old, taken in the presence of his aunt, was properly admitted in evidence; though the aunt was not his legal guardian or custodian, because she clothed, housed, and fed him, and enrolled him in school, she acted as his "guardian" for purposes of this section. State v. Jones, 147 N.C. App. 527, 556 S.E.2d 644 (2001), cert. denied and appeal dismissed, 355 N.C. 351, 562 S.E.2d 427 (2002).
Despite juvenile's contention that his aunt was his guardian, his suppression motion was properly denied, as she was not considered a "party listed" under G.S. 7B-2101 and the aunt never lived with the juvenile, did not have custody of him, nor acted on his behalf as a parent or his guardian. State v. Oglesby, 174 N.C. App. 658, 622 S.E.2d 152 (2005) aff'd in part, vacated in part, review improvidently allowed in part, 361 N.C. 550, 648 S.E.2d 819 (2007). "AUNT" WAS NOT ENUMERATED RELATION. --Denial of defendant's motion to suppress defendant's statement to officers was proper because, although defendant was age 16 at the time of the interrogation, and detectives did not cease questioning when defendant requested to phone defendant's aunt, an "aunt" was not enumerated relation in G.S. 7B-2101 and defendant had no right to have her present during uestioning. State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007). FORMER § 7A-595 SET OUT MANDATORY PROCEDURES which to be followed when juvenile is interrogated by a law-enforcement officer. In re Riley, 61 N.C. App. 749, 301 S.E.2d 750 (1983). MIRANDA RIGHTS EXPLANATION. --An interrogating officer need not explain the Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966)) in any reater detail than what is required by Miranda, even when the suspect is a minor. State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94 (1998). JUVENILE'S RIGHTS UNDER THIS SECTION ARISE ONLY IF THE JUVENILE IS IN CUSTODY. State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986) overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). RIGHT OF JUVENILE TO HAVE PARENT PRESENT. --Under U.S. Const., Amends. V and VI, an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. A juvenile's right, pursuant to subdivision (a)(3) of former G.S. 7A-595, to have a parent present during custodial interrogation is entitled to similar protection. State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).
When juvenile invoked the right to have a parent present during the interrogation, all interrogation should have ceased; since it did not, the trial court erred by denying the juvenile's motion to suppress the statement, which was elicited in violation of G.S. 7B-2101(d). State v. Branham, 153 N.C. App. 91, 569 S.E.2d 24 (2002). WHERE JUVENILE DEFENDANT WAS NOT INFORMED OF HIS RIGHT TO HAVE A PARENT, GUARDIAN OR CUSTODIAN PRESENT during questioning, there can be no finding that such defendant knowingly, willingly, and understandingly waived this privilege. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).
The failure to advise juvenile defendant of his right to have a parent, custodian or guardian present during questioning is not an error of constitutional magnitude, because this privilege is statutory in origin and does not emanate from the Constitution. Therefore, the standard set forth in G.S. 15A-1443(a) must be applied to determine whether the erroneous admission into evidence of defendant's statements to police officers was sufficient to warrant a new trial. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983). THERE WAS NO CUSTODIAL INTERROGATION WHERE JUVENILE DEFENDANT WAS REPEATEDLY TOLD HE WAS NOT UNDER ARREST and was free to leave at any time, and where he signed a statement wherein he stated that he was not under arrest and was giving a statement voluntarily. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997) cert. denied, 522 U.S. 900,XXXXX 248, 139 L. Ed. 2d 177 (1997). LAW ENFORCEMENT OFFICIALS ARE NOT REQUIRED TO INFORM A JUVENILE THAT HIS PARENTS OR ATTORNEY ARE ACTUALLY PRESENT before taking his voluntary confession, and their failure to do so does not render the juvenile's confession involuntary as a matter of law or otherwise inadmissible. State v. Gibson, 342 N.C. 142, 463 S.E.2d 193 (1995). THE FOLLOWING WARNINGS WERE SUFFICIENT TO SATISFY FORMER § 7A-595 AND MIRANDA, even though the juvenile statute contains no requirement of indigency or financial need in order to obtain a court-appointed attorney: "You have the right to remain silent . . . Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. If you cannot afford a lawyer one will be appointed for you before questioning if you wish. You have the right to have your parent, guardian, or custodian with you during questioning. If you decide to answer questions now without a lawyer, parent, guardian or custodian present, you will still have the right to stop answering questions at any time until you talk to a lawyer, parent, guardian, or custodian." State v. McKeithan, 140 N.C. App. 422, 537 S.E.2d 526 (2000). THE FAILURE TO WARN IN ACCORDANCE WITH THIS SECTION MUST BE RAISED IN A MOTION TO SUPPRESS and must be argued in the trial court. State v. Jenkins, 311 N.C. 194, 317 S.E.2d 345 (1984). PARENT MAY NOT WAIVE RIGHTS OF JUVENILE. --Finding that respondent's mother freely, understandingly, and knowingly waived respondent's juvenile rights is not equivalent to a finding that respondent knowingly and understandingly waived his rights. Furthermore, a parent, guardian, or custodian may not waive any right on behalf of the juvenile. In re Ewing, 83 N.C. App. 535, 350 S.E.2d 887 (1986).
When a juvenile's confession was obtained without the juvenile's parent being present because the parent had voluntarily absented himself from the interrogation, the fact that the parent voluntarily absented himself did not allow the confession to be admissible against the juvenile, under subdivisions (a)(3) and (b) of this section, because the parent could not waive the juvenile's right to have the parent present during the interrogation. In re Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003), review improvidently allowed, appeal dismissed sub nom. In re T.R.B., 358 N.C. 370, 595 S.E.2d 146 (2004). FAILURE TO OBJECT AT TRIAL WAIVES ARGUMENT ON APPEAL. --In a capital murder trial, defendant's failure to object at trial to the State's introduction of his out-of-court statement on grounds that he was not advised of his rights under subsection (a) of former G.S. 7A-595 waived his right to complain of its admission on appeal. State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987). FINDINGS REQUIRED. --This section clearly provides that before any statement flowing from custodial interrogation is admitted the judge must make the required findings. In re Riley, 61 N.C. App. 749, 301 S.E.2d 750 (1983).
This section requires the trial court to find as a fact that the juvenile knowingly, willingly, and understandingly waived his juvenile rights prior to admitting any statement made by the juvenile during a custodial interrogation. In re Ewing, 83 N.C. App. 535, 350 S.E.2d 887 (1986). When a juvenile challenged the admission of his confession because it was obtained without the juvenile's parent present, as the parent had voluntarily absented himself from the juvenile's interrogation, it was error for the trial court to fail to determine whether the juvenile was in custody when the confession was obtained. In re Butts, 157 N.C. App. 609, 582 S.E.2d 279 (2003) review improvidently allowed, appeal dismissed sub nom. In re T.R.B., 358 N.C. 370, 595 S.E.2d 146 (2004). WHERE THE COURT'S STATEMENT CONTAINED NOTHING THAT COULD BE CONSTRUED AS A FACTUAL FINDING that juvenile's confession was made in the presence of his parent, guardian, custodian or attorney, as required by subsection (b) of former G.S. 7A-595, the case would be remanded for a finding on compliance with former G.S. 7A-595(b). In re Young, 78 N.C. App. 440, 337 S.E.2d 185 (1985). CONFESSION HELD INADMISSIBLE. --Juvenile's confession which resulted from police-initiated custodial interrogation in the absence of counsel or a parent after the juvenile invoked his right to have a parent present during questioning was erroneously admitted. State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986), overruled in part on other grounds, State v. Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001).
In a delinquency proceeding, the trial court erred by failing to suppress the juvenile's incriminating statements made while he was detained by school officials as the juvenile, while he was being detained, was treated in such a way that a reasonable person in his situation would have believed he was functionally under arrest; juvenile gave incriminating statements in the course of custodial interrogation without being afforded Miranda warnings and the warnings required under G.S. 7B-2101(a) and without being afforded his right to have a parent present during interrogation pursuant to G.S. 7B-2101(b). In re K.D.L., 207 N.C. App. 453, 700 S.E.2d 766 (2010) review denied, 365 N.C. 90, 706 S.E.2d 478 (N.C. 2011). STATEMENT SHOULD HAVE BEEN SUPPRESSED. --Statements a police officer made to a juvenile during a traffic stop while the juvenile was in investigative detention, handcuffed, and in the back of a patrol car were designed to elicit an incriminating response; thus, a statement made to the officer should have been suppressed as the juvenile had not been informed of the juvenile's rights under Miranda or G.S. 7B-2101. In re L.I., 205 N.C. App. 155, 695 S.E.2d 793 (2010). ADMISSION OF STATEMENT OF JUVENILE. --Although the trial record did not contain the findings required by former G.S. 7A-595(d), admission of defendant's statement at trial was not prejudicial because it was not inculpatory. It merely gave somewhat differing versions of the defendant's whereabouts on the day in question. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991).
Court of appeals erred in reversing an order adjudicating defendant juvenile a delinquent on the ground that he unlawfully and willfully possessed a weapon on school property because the trial court did not err in admitting, without objection, defendant's statement that he possessed the knife on school property; the supreme court was not prepared to conclude that the school resource officer's presence and participation during the interrogation of defendant at the request of school administrators conducting the investigation rendered the questioning of defendant a custodial interrogation requiring Miranda warnings and the protections of G.S. 7B-2101, and because no motion to suppress defendant's statement was made, no evidence was presented and no findings were made as to either the officer's actual participation in the questioning or the custodial or noncustodial nature of the interrogation or as to whether the statements were freely and voluntarily made. In re W.R., 363 N.C. 244, 675 S.E.2d 342 (2009).
In a delinquency proceeding in which a juvenile appealed the affirmation of the trial court's denial of his motion to suppress, the juvenile was not entitled to the protections of the Miranda decision and G.S. 7B-2101(a) because he had not been in custody when he confessed to four crimes. He had been escorted from class to a conference room, where a police investigator was present along with an assistant principal, one of the assistant principal's interns, and the school resource officer, and there was no indication in the trial court's findings that the juvenile had been restrained in any way or that anyone stood guard at the conference room door, which had been closed, but not locked.XXXXX 2394, 2011 U.S. LEXIS 4557, 180 L. Ed. 2d 310 (U.S. 2011).
In a case in which a juvenile appealed the trial court's denial of his motion to suppress his statements, while the protections of the Miranda decision and G.S. 7B-2101(a) applied only to custodial interrogations by law enforcement, the inquiry as to whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest was not equivalent to the broader free to leave test that had long been used for determining, under the Fourth Amendment, whether a person had been seized. In re J.D.B., 363 N.C. 664, 686 S.E.2d 135 (2009), rev'd, remanded,XXXXX 2394, 2011 U.S. LEXIS 4557, 180 L. Ed. 2d 310 (U.S. 2011). Murder defendant's offer during an interrogation to continue speaking with the officers the next day was an indication not that he did not wish to be questioned further, but rather that he was perfectly willing to talk with the officers. State v. Clodfelter, 203 N.C. App. 60, 691 S.E.2d 22 (2010). SPONTANEOUS STATEMENT TO LAW ENFORCEMENT. --Juvenile's statement to a sheriff's corporal and a high school principal, upon their discovering $59 in his pants pockets, that the money "was not from selling drugs" but was his mother's rent money, was properly admitted because it was unsolicited and spontaneous, and not made at the questioning of the corporal. In re D.L.D., 203 N.C. App. 434, 694 S.E.2d 395 (2010). SUBSEQUENT STATEMENT ADMISSIBLE WHERE DEFENDANT INITIATED COMMUNICATION. --Defendant's subsequent statement was admissible where defendant stated that he did not wish to answer any questions, but then, upon considering his mother's statement, he turned to the police officer and nodded his head affirmatively, after which the detective asked defendant if he then wished to answer questions without a lawyer present and the defendant answered "yes." State v. Johnson, 136 N.C. App. 683, 525 S.E.2d 830 (2000). AN UNAMBIGUOUS INVOCATION OF DEFENDANT'S RIGHT TO SILENCE. --Trial court did not commit plain error by admitting the portion of defendant's statement concerning a jeep which his brother co-defendant shot at where the agent witness's testimony indicated that defendant's statement was not an unambiguous invocation of his right to silence. State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931,XXXXX 1379, 1380, 149 L. Ed. 2d 305 (2001). WAIVER OF RIGHTS. --The additional language added to the adult rights form adequately conveyed the substance of juvenile defendant's right to have his mother present during questioning; it was clear defendant understood this right, and his actions were a knowing and intelligent waiver of the right. State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996).
A defendant's youth or subnormal mental capacity does not necessarily render him incapable of waiving his rights knowingly and voluntarily. State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94 (1998).
A juvenile knowingly, voluntarily, and understandingly waived her rights, where she admitted to her family and then to a police officer that she and her boyfriend stole money from her grandparents, and after being taken into custody waived her right to have a parent or guardian present and signed a waiver of rights form. State v. Brantley, 129 N.C. App. 725, 501 S.E.2d 676 (1998).
Trial court did not err in denying his motion to suppress his incriminating statement on the ground that it was obtained in violation of G.S. 7B-2101; although he invoked his right to have his mother present during questioning, defendant later initiated further communication and waived right. State v. Williams, -- N.C. App. --, 705 S.E.2d 409 (2011). THERE IS NO STATUTORY DUTY TO EXPLAIN A PERSON'S RIGHTS TO A JUVENILE IN GREATER DETAIL than what is required by former G.S. 7A-595(a). State v. Flowers, 128 N.C. App. 697, 497 S.E.2d 94 (1998). APPLICABILITY TO STATEMENTS RESULTING FROM CUSTODIAL INTERROGATION.
--This section pertains only to statements obtained from a juvenile defendant as the result of custodial interrogation. State v. Gaines, 345 N.C. 647, 483 S.E.2d 396 (1997), cert. denied, 522 U.S. 900,XXXXX 248, 139 L. Ed. 2d 177 (1997). A TECHNICAL VIOLATION OF FORMER § 7A-595(A)(3) DID NOT TAINT A VALID WAIVER of rights by 14 year old defendant 2 days later. State v. Bunnell, 340 N.C. 74, 455 S.E.2d 426 (1995). THE PURPOSE OF THE REQUIREMENT IN FORMER § 7A-595(D) is to establish the basis for admitting the statement. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991). WARNING HELD NOT REQUIRED. --Reasonable person in s juvenile defendant's position would not have believed himself to be in custody; thus, warnings under Miranda and G.S. 7B-2101(a) were not required. Defendant was not handcuffed, his responses indicated that he understood that he did not have to answer the questions, and he was allowed to leave the school when the bell rang. In re J.D.B., 196 N.C. App. 234, 674 S.E.2d 795 (2009) aff'd, 363 N.C. 664, 686 S.E.2d 135 (2009). CITED in State v. Yancey, -- N.C. App. --, 727 S.E.2d 382 (2012).
I know this a lot of information, but I thought providing you the annotations to the statute would put the statute in its proper perspective.
Here's the most relevant citation that makes the main point here - which is the failure to read warnings doesn't void the charged; instead, it just voids the state's right to use any evidence or statements against him at trial:
WHERE JUVENILE DEFENDANT WAS NOT INFORMED OF HIS RIGHT TO HAVE A PARENT, GUARDIAN OR CUSTODIAN PRESENT during questioning, there can be no finding that such defendant knowingly, willingly, and understandingly waived this privilege. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983). The failure to advise juvenile defendant of his right to have a parent, custodian or guardian present during questioning is not an error of constitutional magnitude, because this privilege is statutory in origin and does not emanate from the Constitution. Therefore, the standard set forth in G.S. 15A-1443(a) must be applied to determine whether the erroneous admission into evidence of defendant's statements to police officers was sufficient to warrant a new trial. State v. Fincher, 309 N.C. 1, 305 S.E.2d 685 (1983).
In this scenario, the evidence should not have been allowed in as evidence, which would warrant a NEW TRIAL - - and not a dismissal of the charges.
It is great info, I am still digesting it! I understand. Wish we lived in Colorado! LOL! Thanks for your info
Hahahaha! Yeah, Colorado is safe until the DEA starts filing lawsuits against the state to stop it.
The easiest thing to consider is that the arrest and charge is separate from the subsequent interrogation. Even if the interrogation is faulty, the charges are not effected.
It may be that without the admissions from the interview that your son's charges can't be sustained - - which is a good thing - - but it doesn't thwart the charges.
Let me know if you have any additional questions.
One last question, and you really have been great, I just learned that the McDonald's is outside of the city limits, not far out, but out none the less, and it was city police that arrested him. I always assumed that they did not have jurisdiction outside the city limits unless they were pursuing someone and the pursuit began in the city limits. Yes, I am grasping for something in my favor besides deferred prosecution (which I am unfortunately familiar with since delinquency seems to run in the family! Sheesh, what am I doing wrong!) is not the option I wanted to go with! Thanks again for all of your help!
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