"FROM THE CLASSROOM"
By Ray Hill, Professor Emeritus, Santa Rosa Junior College
“Its ‘402’ time, officer” - “Who Wins, You or Defense counsel”? Note: 402(b) E.C. – A pre-trial court hearing to determine the admissibility of an admission or confession.
"Minors, Miranda, and the California Legislature”
This is the eighth in a series of mini-articles covering basic Miranda and Confession Law. This review is equally applicable to detectives and those generalists who are assigned to investigate their own cases.
As my valued instructional colleague at the Santa Rosa Public Safety Training Center, Sergeant Kevin Scanlon, Sonoma County Sheriff’s Office (Retired) said with the repeal of 653.20 P.C. – Loitering for the Purpose of Engaging in Prostitution (See LUPC Publication Alert 7/7/22), “It is truly unfortunate that the California Legislature has proved once again our efforts to protect people from evil is affected by California legislators lack of positive protection to thwart the efforts by the criminal element to gain ground of unlawful behaviors”.
Prime example, the “Sacramento crew” decided a few years back to legislate Fifth Amendment interpretation. This has has created confusion in questioning minors who have been arrested, despite the seriousness of the crime. Letter of the law, spirit of the law, department policy – how do you proceed?
Under Fifth Amendment case law (which is the “interpretive purview” of the appellate courts, not our State Senate, Assembly, or the Governor who signs these bills), minors are absolutely able to understand and waive their Miranda rights (Fare v. Michael C. (1979) 442 U.S. 707; Peo. v. Villesenor (2015) 242 Cal. App. 4th 42; Peo. v. Lara (1967) 67 Cal. 2nd 365).
At a suppression motion, two factors become important in establishing the prosecution’s burden of proof that a minor knowingly and voluntarily waived his/her Miranda Rights rights. This is known as the “totality of circumstances” test.
1) Personal characteristics of the minor including age, intelligence, education, experience with the criminal justice system, and the ability to understand the meaning and impact of Miranda rights.
2) The events surrounding the waiver and interrogation, conduct inconsistent with a willingness to discuss the case freely, and police interrogation tactics that potentially "play upon" a minor's youthfulness or immaturity. Example:
“A child subject to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go”. “Children are more vulnerable or susceptible to outside pressure than adults” (JDB v. North Carolina (2011) 564 U.S. 204).
(See Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, July 2022, Pages 473-476).
The California legislature, in their infinite wisdom, has enacted two statutory provisions relating to minors and Miranda. Keep in mind these enactments have nothing to do with Fifth Amendment case law, so their impact will be further discussed.
625© W&I – When a minor is taken into temporary custody for a 601 or 602 W&I violation, the minor shall be read a Miranda admonition. This statute makes no mention as to when an admonition should be read - Upon taking custody, upon arrival at the police station, prior to questioning, prior to release? There is no case law interpreting this statute. Also, the statute does not require seeking a waiver incident to the admonition.
The California legislature has no authority to interpret the Fifth Amendment. As previously mentioned, this is an appellate court responsibility and ultimately falls to the U.S. Supreme Court. Thus, failure to follow 625© W&I cannot trigger an Exclusionary Rule sanction for suppression of any volunteered statements after custody or taint a subsequent voluntary Miranda waiver. The advisement is legislative direction, not a constitutional one.
625.6 W&I – Prior to questioning a minor and before any Miranda admonition, a minor shall have the opportunity to consult with legal counsel. This provision cannot be waived.
This statute took effect in 2018 and “prima facie” negates any possibility of getting a Mirandized admission or confession from a juvenile suspect. A lawyer’s “Professional Code of Ethics” will mandate that counsel advise a potential client not the speak with the police. Even a brief consultation constitutes a “bonafide professional relationship” (954/955 Evidence Code)
There is a major exception in the statute for questioning in response to exigent circumstances – Rescue Doctrine, Public Safety, Officer Safety, Suspect Safety). Also, the statute would not apply when the Miranda element of custody is not present, i.e., a detention, general on-scene investigation, voluntary (Beheler) interview, or phone interview.
Similarly, failure to follow 625.6 W&I cannot trigger an Exclusionary Rule sanction for suppression of a subsequent voluntary or Mirandized statement that is otherwise admissible under the “totality of circumstances” test. Again, the advisement is legislative direction, not a constitutional one.
One case decision has clearly interpreted 625.6 W&I (In re: Anthony L (2019) 43 Cal. App. 5th 438). San Francisco Police officers were investigating an assault case involving five suspects who had beaten a 61-year old man in his driveway. The minor (defendant) was identified from a surveillance camera video. Officers went to the minor’s home where an interview took in the presence of the minor’s mother. The officer gave a Miranda admonition (“I’m going to read you your rights because you are a juvenile”. “You are not under arrest”). The minor stated he understood, and answered the officer’s questions. He subsequent confessed.
Defense filed a motion to suppress these statements because per 625.6 W&I the minor did not have the opportunity to consult with an attorney before police questioning 1DCA ruled there is no suppression sanction for failure to comply with this statute. “The proper inquiry remains not whether officers complied with the state statute, but whether federal law compels exclusion of the minor’s statement”.
A judge in a “402 motion” may consider the failure to follow 625.6 W&I in the determination of whether a waiver was knowingly and voluntarily given (again, under the “totality of circumstances” test). The court in Anthony L. reviewed the circumstances of questioning ruling there was no coercion, deception, or trickery. “Nothing in the record persuades us that Anthony did not understand his rights to silence and counsel and the consequences of waiving those rights”.
Note: This interview could have been approached as a voluntary interview (with a Beheler admonition) because the interview was at home, in the presence of the minor’s mother, was low key, and no coercive questioning took place. But for the purposes of this decision, the court treated the questioning as custodial because Miranda was read.
(See Robert Phillip’s “Miranda and Confession Law – The Fifth Amendment”, April 2022, Pages 479-484).
The P.O.S.T. Basic Course curriculum (Learning Domain #15 – Laws of Arrest/Administration of Miranda Warnings) directs the “letter of the law” in teaching of these statutes to law enforcement recruits without further follow-up explanation (which I provide in my classes). It seems to be counter productive to advise the C/A - 488/shoplifter minor of his/her Miranda rights when no follow-up investigation or evidentiary questioning is intended and the minor will soon be reprimanded and released to his/her parents. Likewise, 625.6 W&I makes no evidence gathering sense because a lawyer will tell minor to “clam up”.
Bottom line: The real test - Is the statement “legally obtained” under current case law Fifth Amendment interpretation, particularly as cases relate to questioning minors.
Follow your department policy in these areas.
Stay Safe,
RH
