E-Newsletter Edition: September 30, 2007
Response Provided By: Brian S. Batterton, J.D.
Always note that state law may be more restrictive on police power than the U.S. Constitution.
QUESTION:
What is the law regarding an SRO (not school P.D.) or other officer questioning a student on school property and requesting that a parent not be notified. The investigation was regarding vandalism. Best practice for school districts in the State of Texas is that parents are always notified.
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ANSWER:
There is no federal constitutional right of a juvenile to have a parent notified when the police seek to interview a juvenile, whether on or off school property and whether by police or a school resource officer (SRO). However, each individual state is free to write statutes to govern police conduct when arresting and/or interrogating juveniles.
Texas does have statutes that impose certain duties upon police when interviewing juveniles who are in custody. There is also a case from the Court of Appeals of Texas that almost directly answers the question above. In In the Matter of F.C.W., arson investigators were investigating an apparently intentional fire set in a truck on August 20, 2004. i The arson investigators received information that F.C.W. and J.N. may have been involved.
On September 14, 2004, arson investigators went to F.C.W.’s school to interview him about the arson. F.C.W. was summoned to the principal’s office where two arson investigators, both wearing polo shirts with “arson” printed on the shirts and visible firearms, waited. The principal was also present. The lead investigator sat at the principal’s desk and F.C.W. sat in a chair across from the desk. The door to the office was shut and locked from the outside but F.C.W. was aware that the door would open from the inside. The other investigator was either behind or beside F.C.W. The interview lasted about twenty-five minutes and it is undisputed that the arson investigators did not inform F.C.W. of his right to remain silent, consult an attorney, or have a parent or other adult present.
During the interview, the lead investigator told F.C.W. he was not under arrest and was free to leave. F.C.W. made no attempt to leave the office or end the interview, and did not ask to speak to anyone or to have anyone else present. He did admit that he was involved in the arson and this admission was used in court. F.C.W. was charged with the arson in January of 2005 and subsequently adjudicated delinquent.
F.C.W. appealed his conviction and argued (1) that the arson investigators did not comply with Texas law regarding statements of juveniles and (2) that even if the investigators did comply with Texas statute, the statement was not voluntary. ii
As to the first issue, the court noted that Section 51.095(b) of TEX. FAM. CODE ANN. must be complied with when a juvenile is “in custody.” However, when a juvenile makes voluntary oral statements that do not arise from custodial interrogation, the statute does not require the statements to be excluded. iii Further, custody occurs when a reasonable person under the same circumstances would believe that his freedom of movement was restrained to the degree associated with a formal arrest. iv When the “custody” issue involves a juvenile, courts will consider the age of the person, how another reasonable juvenile in the same situation would feel and all other circumstance surrounding the situation or interrogation. v Other factors that the court will consider to determine whether a juvenile is in custody are whether there was probable cause to arrest; whether the juvenile was the focus of the investigation; and to the extent communicated or manifested, the officer’s subjective intent and the child’s subjective beliefs. vi
In this case the Court of Appeals noted that, at the time of the interview, the investigators did not have probable cause to arrest F.C.W. Additionally, he was told he was not under arrest, was free to leave and he was never handcuffed. Further, F.C.W. never asked to leave or to speak to a lawyer or other trusted adult. Based upon the factors considered, the Court of Appeals determined that F.C.W. was not “in custody.” Because he was not in custody during the interview, the protections of Section 51.095(b) of TEX. FAM. CODE ANN. did not apply to F.C.W. and his statement was admissible.
The remaining issue was whether F.C.W. statement was involuntary or the result of a coercive environment. For a statement to be considered involuntary, there must have been “‘official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.'” vii Here, the Court of Appeals found that the conduct of the arson investigators was not so coercive to have caused F.C.W. to make statements that were not the product of free and unconstrained choice. viii Specifically, F.C.W. identified no conduct or statements by the investigators that he considered threatening or intimidating; he does not contend he was promised anything in exchange for his cooperation; the interview lasted only 25 minutes; and he does not contend that he asked to speak to a parent or attorney. ix Finally, although F.C.W. was not asked if he wished to speak to a parent or trusted adult or have such a person present, these protections were not required in a non-custodial interview such as this. x
Therefore, since the statement was non-custodial and thus, did not require the protection of Section 51.095 and since the statement was voluntary, it was admissible in the adjudication of delinquency.
Citations:
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In the Matter of C.F.W., 2006 Tex. App. LEXIS 8364 (2006)
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Id. at 5
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Id. at 6
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Id at 7 (citing Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996) (citing Stansbury v. California, 511 U.S. 318, 320, 114 S. Ct. 1526, 1528-30, 128 L. Ed. 2d 293, 298-99 (1994)).
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Id.
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Id.
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Id. at 11 (quoting Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995)).
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Id. at 11-12
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Id.
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Id.
