In re J.D.B.

NEWBY, Justice.

Justice BRADY dissenting.

The issue in this case is whether J.D.B., a thirteen year old special education student at Smith Middle School in Chapel Hill, North Carolina, was significantly deprived of his freedom of movement and thus entitled to the protections of theFifth Amendment of the United States Constitutionand N.C.G.S. §7B-2101(a) before being interrogated by law enforcement officers and school officials in a closed conference room of the middle school. The majority's conclusion stands in stark contrast to our State's public policy of aiding, supporting, and protecting juveniles. The manner in which school officials and law enforcement interrogated J.D.B. more resembles hunters carefully and selectively targeting their prey than a fair juvenile investigation consistent with our General Statutes. Because I believe the Juvenile Code affords heightened protections againstPage 673self-incrimination to juveniles, especially in the restrictive environment of a public middle school, I respectfully dissent.

Tension has long existed between the interests of law enforcement in conducting efficient criminal investigations and the individual's constitutional right against self-incrimination. Throughout American history the "incommunicado" nature of police investigations has led to the use of physical violence and psychological coercion to elicit criminal confessions.See Miranda v. Arizona,384 U.S. 436,445-46(1966). In response to these abuses, the Supreme Court of the United States decision inMiranda v. Arizonaunequivocally established that law enforcement officers must administer specific warnings "to protect an individual'sFifth Amendmentright against self-incrimination in the inherently compelling context of custodial interrogations by police officers."State v. Buchanan,353 N.C. 332,336,543 S.E.2d 823,826(2001) (citingMiranda,384 U.S. 436). The North Carolina General Assembly has taken additional steps to protect a juvenile's right against self-incrimination in the North Carolina Juvenile Code, which provides that before custodial questioning, a juvenile must be advised:

(1) That [he] has the right to remain silent;

(2) That any statement [he] does make can be and may be used against [him];

(3) That [he] has a right to have a parent, guardian, or custodian present during questioning; and

(4) That [he] has a right to consult with an attorney and that one will be appointed for [him] if [he] is not represented and wants representation.

N.C.G.S. §7B-2101(a) (2007).

An individual is entitled toMirandawarnings and the protections of N.C.G.S. §7B-2101when it is apparent from the "totality of thecircumstances" that there is a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest."State v. Garcia,358 N.C. 382,399-400,597 S.E.2d 724,738(2004) (citations and internal quotation marks omitted),cert. denied,543 U.S. 1156(2005). The primary inquiry is "`whether areasonable person in defendant's position, under the totality of the circumstances, would have believed that he was under arrest or was restrained in his movement to the degree associated with a formal arrest.'"State v.Page 674Burden,356 N.C. 316,337,572 S.E.2d 108,123(2002) (emphasis added) (quotingBuchanan,353 N.C. at 339-40,543 S.E.2d at 828),cert. denied,538 U.S. 1040(2003).

Ultimately, the analysis in the instant case hinges upon whether defendant's age should be taken into consideration under the reasonable person standard when analyzing the circumstances surrounding the interrogation. The majority contends thatYarborough v. Alvarado,541 U.S. 652(2004), should persuade this Court to not consider the age of the subject under the reasonable person standard. InAlvarado, the Supreme Court of the United States ruled that "[t]heMirandacustody inquiry is an objective test,"id.at 667, and because "consideration of a suspect's individual characteristics — including his age — could be viewed as creating a subjective inquiry,"id.at 668, age was irrelevant to a reasonable person's belief in aMirandacustody analysis.Id.Alvaradois not controlling in an analysis of N.C.G.S. §7B-2101.SeeState v. Smith,317 N.C. 100,106,343 S.E.2d 518,521(1986) ("In resolving [issues under N.C.G.S. § 7A-595] . . . cases decided under thefifthandsixth amendments to the United States Constitutionare not controlling. . . .")overruled in part on other grounds by Buchanan,353 N.C. at 340,543 S.E.2d at 828. When analyzing N.C.G.S. § 7A-595, the predecessor provision of the Juvenile Code governing juvenile interrogations, this Courthasfound it appropriate to consider the subject's age under the reasonable person standard of theMiranda"in custody" analysis.²InState v. Smiththis Court considered whether a sixteen year old was subjected to a custodial interrogation under N.C.G.S. § 7A-595.Id.at 102-08,343 S.E.2d at 519-22. After considering the totality of the circumstances, including the length of the questioning and the constant presence of armed law enforcement officers, this Court determined that a person of "defendant's age and experience" would have believed he was in custody.Id.at 105,343 S.E.2d at 520. Thus, the age of the defendant was a key consideration in determining whether a reasonable juvenile would have believed he was "in custody" under N.C.G.S. § 7A-595.

By failing to consider age, the majority's reasonable person standard is too rigid to apply to provisions of the Juvenile Code. It is logical that age should be considered as part of the reasonable person standard in a custody analysis under N.C.G.S. §7B-2101. The many noble goals of the Juvenile Code include "protect[ing] the constitutional rights of juveniles" and their families andPage 675"provid[ing] uniform procedures that assure fairness and equity." N.C.G.S. §7B-1500(4) (2007). The entire Code was created to ensure unique services for juveniles because of the special circumstances inherent in their youth; to ignore age when interpreting any section of the Juvenile Code defies common sense and the very purpose of the Code.

Furthermore, a defendant's age is often considered throughout our jurisprudence and General Statutes. For example, under civil common law, there is a rebuttable presumption that juveniles between the ages of seven and fourteen are incapable of contributory negligence, and children under seven are "conclusively presumed to be incapable of contributory negligence."See Welch v. Jenkins,271 N.C. 138,142,155 S.E.2d 763,766(1967) (citations omitted). In the criminal context, those under the age of six cannot be charged with a crime.SeeN.C.G.S. §7B-1501(7) (2007). In North Carolina we have a separate juvenile court for youthful offenders; jurisdiction can be transferred to a superior court only if the juvenile is at least thirteen years old when the alleged felony was committed, if the juvenile has received proper notice and a hearing, and probable cause has been found.Id.§7B-2200(2007). Additionally, the Supreme Court of the United States has ruled that theEighth Amendmentforbids imposition of the death penalty on offenders under the age of eighteen when their crimes were committed.Roper v. Simmons,543 U.S. 551,578(2005). The rationale behind these laws is practical and just. The perceptions, cognitive abilities, and moral development of juveniles are different from those of adults; thus, the law rightly takes this into account when dealing with juvenile offenders. The majority's failure to consider J.D.B.'s juvenile status in its reasonable person standard runs contrary to our established juvenile jurisprudence.

Furthermore, the arguments for excluding consideration of age under the reasonable person standard outlined inAlvaradoare not present in the instant case.Alvarado'srationale for excluding age from a custody inquiry was to "give clear guidance to the police,"541 U.S. at 668, so that law enforcement officers are not forced to "anticipat[e] the frailties or idiosyncra[s]ies of every person whom they question,"id.at 667 (quotingBerkemer v. McCarty,468 U.S. 420,442n. 35 (1984) (alterations in original) (internal quotation marks omitted)). Here, the difficulty of guessing defendant's age is nonexistent. Investigator DiCostanzo sought out J.D.B. at a middle school, where he knew J.D.B. was a seventh-grade student. All seventh graders are juveniles, roughly between the ages of twelve and fourteen, and asPage 676Investigator DiCostanzo testified, he was able to obtain J.D.B.'s exact age from school records. Therefore, defendant's "frailty" — his youth — was evident from the very location Investigator DiCostanzo selected to conduct the interrogation. Additionally, Investigator DiCostanzo was ajuvenileinvestigator with the Chapel Hill Police Department, specially trained in dealing with juveniles and educated in laws concerning their rights. The Chapel Hill Police Department Policy Manual explicitly states:

Even if the juvenile is not in custody, it is good practice to have him sign a Miranda Rights waiver form before issuing a statement. If the juvenile does not sign a waiver, the officer must document that the juvenile is told that he is not under arrest and free to leave at any time, and that he agreed to talk.

Chapel Hill Police Dep't, Policy Manual No. 2-12 (Juvenile Response), at 4 (Dec. 15, 2006 (revised)) (emphasis added). In order to protect J.D.B.'s rights and fulfill the purpose of the Juvenile Code, Investigator DiCostanzo should have read J.D.B. his rights under N.C.G.S. §7B-2101before soliciting any statement, just as the Chapel Hill Police Department Policy Manual advises.

Because consideration of a subject's youth is particularly pertinent in analyzing any provision of the Juvenile Code, especially when doing so creates no undue burden on law enforcement officers, the proper inquiry in the instant case when determining whether defendant was in custody for the purposes of N.C.G.S. §7B-2101should be whether, under the totality of the circumstances, a reasonable juvenile in defendant's position would have believed he was under formal arrest or was restrained in his movement to the degree associated with a formal arrest. The majority concludes that there were not sufficient "indicia of formal arrest" to conclude that J.D.B. was in custody because the findings of fact do not indicate that J.D.B. was physically restrained or that the conference room door was guarded or locked. While it is true that handcuffs were never applied to J.D.B. and the closed door of the room where he was detained was not locked, this does not mean he was not restrained. The majority's analysis ignores the Court's obligation to consider the totality of the circumstances and "the unique facts surrounding each incriminating statement."Garcia,358 N.C. at 399,597 S.E.2d at 738(citations omitted). An examination of the totality of the circumstances leads to the conclusion that a reasonable juvenile in J.D.B.'s position would have believed he was restrained in his movement to the degree associated with a formal arrest.Page 677

First, the location of the interrogation must be considered. In any planned interrogation, law enforcement carefully chooses the location before questioning begins. The gold standard in enhanced interrogation preparation and training, utilized by both the Central Intelligence Agency and the Federal Bureau of Investigation, is the Army Field Manual on Human Intelligence Collector Operations. The Manual states:

When conducting . . . operations, the location of the questioning will have psychological effects on the source. The questioning location should be chosen and set up to correspond to the effect that the [officer] wants to project and his planned approach techniques. For example, meeting in a social type situation such as a restaurant may place the source at ease. Meeting in an apartment projects informality while meeting in an office projects more formality. Meeting at the source's home normally places him at a psychological advantage, while meeting in the [officer's] work area gives the [officer] a psychological edge.

U.S. Dep't of the Army, Field Manual 2-22.3,Human Intelligence CollectorOperationspara. 7-12 (Sept. 6, 2006). As a trained investigator would know, the location of the interrogation in the instant case certainly would have a psychological effect on a reasonable person in J.D.B.'s position. A middle school is a restrictive environment. Unlike a university campus, where people may freely come and go, middle school students are not free to leave the campus without permission, and visitors to the school, including parents and guardians of students, must upon arrival report their presence and receive permission to be at the facility. Moreover, students at middle schools are instructed to obey the requests and directives of adults. The Student Handbook at Smith Middle School, where J.D.B. attended, instructs students to "[f]ollow directions of all teachers/adults the first time they are given," "[s]top moving when an adult addresses" them, and "[w]alk away only after the adult has dismissed" them.

Law enforcement in the instant case took advantage of the middle school's restrictive environment and its psychological effect by choosing to interrogate J.D.B. there, instead of at his home or in any other public, more neutral location. Certainly, if the larceny J.D.B. was suspected of committing had occurred on school grounds, law enforcement might understandably investigate suspects there, at the scene of the crime. However, the larceny in question occurred in a residential subdivision, not on the school campus. Law enforcement investigators could have first attempted to question J.D.B. at his residence.Page 678Instead, the school was selected as the interrogation site, a location where any reasonable juvenile in J.D.B.'s position would not only be at a psychological disadvantage, but where he would be defenseless, without the protection of a parent or guardian. It is troubling that in the instant case a public middle school, which should be an environment where children feel safe and protected, became a place where a law enforcement investigator claimed a tactical advantage over a juvenile.

Not only was J.D.B., or any reasonable juvenile in his position, at a disadvantage because of the location of the interrogation, but also by the manner in which it was conducted. J.D.B. was sitting in a class-room with his peers when the class was suddenly interrupted by Officer Gurley, Smith Middle School's resource officer. Officer Gurley removed J.D.B. from the classroom and escorted him to a school conference room. J.D.B. could have been asked by his teacher or any other school official to report to the conference room; instead, he was escorted by a uniformed, armed police officer. The only logical reason for Officer Gurley to escort J.D.B. was to restrain his freedom of movement; J.D.B. had no choice but to comply with his removal from the classroom and Officer Gurley's instructions to walk to the conference room. If J.D.B. had refused to accompany Officer Gurley he likely would have faced disciplinary action from the school.³Therefore, J.D.B.'s freedom of movement was restricted from the moment he was removed from his classroom by Officer Gurley.

When J.D.B. arrived at the conference room, he was met by three other authoritative adults: Mr. Lyons, the school assistant principal; Mr. Benson, an intern with the school; and Investigator DiCostanzo of the Chapel Hill Police Department. J.B.D. was directed to take a seat at a conference table and the door to the office was closed. Investigator DiCostanzo was not in uniform, but dressed in a suit jacket and tie, and he introduced himself to J.D.B. as a juvenile investigator. That a special investigator from the police department, dressed in business attire, was making a special trip to the school would alert any reasonable middle school student that somethingPage 679serious was taking place, something more than a casual conversation about joining the Police Athletic League or participating in the Youth Partnership for Crime Prevention.

With these facts alone, there is enough evidence to conclude that a reasonable juvenile in J.D.B.'s position would have believed he was restrained in his movement to the degree associated with a formal arrest. The majority states that "[f]or a student in the school setting to be deemed in custody, law enforcement must subject the student to `restraint on freedom of movement' that goes well beyond the limitations that are characteristic of the school environment in general." If removal from a middle school classroom and being physically escorted by a uniformed, armed police officer to a closed conference room inhabited by four authoritative adults does not qualify as procedures that go well beyond the "typical restrictions" of a "school environment in general," it is hard to imagine any set of circumstances that the majority would label as a sufficient restraint on movement.

At this point in the interrogation, as noted above, the Chapel Hill Police Department Policy Manual instructs that before any questioning began, Investigator DiCostanzo should have informed J.D.B. of his rights under N.C.G.S. §7B-2101. Had Investigator DiCostanzo simply followed the Manual, this case likely would not be before us. Instead, Investigator DiCostanzo immediately began the interrogation. J.D.B. was never told he was free to leave or that he was entitled to have a parent, guardian, or attorney present. When Investigator DiCostanzo began questioning J.D.B. about the larceny, J.D.B. denied any involvement. Yet, Assistant Principal Lyons urged J.D.B. to "do the right thing" and tell the truth. Investigator DiCostanzo continued to pressure J.D.B. to talk by confronting him with information that a stolen camera had been found. Still, at this point no one had advised J.D.B. of his rights. When J.D.B. inquired of Investigator DiCostanzo what would happen if the stolen items were returned, Investigator DiCostanzo replied that it would be helpful, but the matter would still have to go to court. Next, Investigator DiCostanzo informed J.D.B. that he might be forced to obtain a secure custody order for J.D.B. unless it was apparent that J.D.B. was not going to steal again. Investigator DiCostanzo explained to J.D.B. that a secure custody order would give law enforcement the right to hold J.D.B. in juvenile detention.⁴To a reasonable person in J.D.B.'s position, this remarkPage 680certainly qualifies as an indicium of formal arrest. Moreover, Investigator DiCostanzo's statement was nothing short of a veiled threat that J.D.B. would be physically detained unless he confessed. At this point, J.D.B. had already denied any involvement in the larceny, yet he was not permitted to leave; rather, he was encouraged to "do the right thing" and threatened with juvenile detention. A reasonable middle school student in J.D.B.'s position, after being physically escorted by a uniformed, armed officer to a closed conference room with four authoritative adults, would have considered himself to be physically restrained to the point of formal arrest. Moreover, under school policy, J.D.B. was not free to leave until he was dismissed by an adult. Furthermore, Investigator DiCostanzo, a special juvenile investigator with the Chapel Hill Police Department, threatened to hold J.D.B. in juvenile detention unless he divulged all his knowledge of the larceny. The totality of these circumstances leads to no other conclusion than that J.D.B. was "in custody."

Not surprisingly, after Investigator DiCostanzo's threat of a secure custody order, J.D.B. made incriminating statements linking him to the larceny. When J.D.B. made these statements he had not been advised of his rights. Investigator DiCostanzo's subsequent statements informing J.D.B. that he did not have to answer any questions and that he was free to leave are therefore irrelevant to this analysis. What these statements in fact do is exhibit crafty and highly questionable investigative tactics. Investigator DiCostanzo's warning was too little, too late, after J.D.B.'s constitutional rights had been circumvented.Page 681

The Standards Manual of the Law Enforcement Agency Accreditation Program states: "When dealing with juveniles, law enforcement officers should always make use of the least coercive among reasonable alternatives, consistent with preserving public safety, order, and individual liberty." Comm'n on Accreditation for Law Enforcement Agencies, Inc.,Standards for Law Enforcement Agenciesch. 44 (JuvenileOperations), at 44-1 (4th ed. Jan. 1999). The actions of law enforcement in the instant case are inconsistent with these standards and evince a disregard for the protection of juvenile rights. It is disheartening and alarming that today's majority opinion condones the highly coercive actions of law enforcement in the instant case, which will only encourage law enforcement to disregard the provisions and procedures of N.C.G.S. §7B-2101in the future. Even radical Muslims suspected of terrorism are afforded broader constitutional protections than the majority wishes to give juveniles in J.D.B.'s position.Cf. Boumediene v. Bush,___ U.S. ___,128 S. Ct. 2229(2008) (holding that alien enemy combatants detained at the U.S. Naval Station in Guantanamo Bay, Cuba, are entitled to certain constitutional privileges). The overriding goal of North Carolina's Juvenile Code is to protect the constitutional rights and best interests of juveniles and their families. Today's majority opinion is inconsistent with this goal. I would hold that because a reasonable person in J.D.B.'s position was in custody for the purposes of N.C.G.S. §7B-2101, our state laws entitled J.D.B. to be informed of his rights before the interrogation began. Accordingly, I respectfully dissent.

Justice HUDSON dissenting.

Because I believe the trial court's conclusions of law reflect an incorrect application of the law to the facts found, I respectfully dissent. "The determination of whether an interrogation is conducted while a person is in custody involves reaching a conclusion of law. While this conclusion may rest upon factual findings, it is a legal conclusion, fully reviewable, and not a finding of fact."State v.Greene,332 N.C. 565,577,422 S.E.2d 730,737(1992) (citation omitted).

Accordingly, . . . we review the trial court's conclusions of law for legal accuracy and to ensure that those conclusions reflect[] a correct application of [law] to the facts found. In doing so, this Court must look first to the circumstances surrounding the interrogation and second to the effect those circumstances would have on a reasonable person.

Page 682State v. Garcia,358 N.C. 382,391,597 S.E.2d 724,733(2004) (second and third alterations in original) (citations and internal quotation marks omitted),cert. denied,543 U.S. 1156,161 L. Ed. 2d 122(2005).

"InMiranda, the Supreme Court defined `custodial interrogation' as `questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in anysignificantway'"State v. Buchanan,353 N.C. 332,337,543 S.E.2d 823,826(2001) (quotingMiranda v. Arizona,384 U.S. 436,444,16 L. Ed. 2d 694,706(1966)). "[I]n determining whether a suspect [is] in custody, an appellate court must examine all the circumstances surrounding the interrogation; but the definitive inquiry is whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest."State v. Gaines,345 N.C. 647,662,483 S.E.2d 396,405(citation omitted),cert. denied,522 U.S. 900,139 L. Ed. 2d 177(1997). "The test for determining whether a person is in custody is an objective test as to whether a reasonable person in the position of the defendant would believe himself to be in custody or that he had been deprived of his freedom of action in some significant way."Greene,332 N.C. at 577,422 S.E.2d at 737(citations omitted).

Here, the trial court determined that J.D.B. was not subjected to custodial interrogation when he was questioned at Smith Middle School. In doing so, the trial court made the following pertinent conclusions of law, which were challenged on appeal:

1. [J.D.B.] was not in custody when he was brought to the conference room to speak to . . . [I]nvestigator [DiCostanzo].

2. The mere presence of . . . [I]nvestigator [DiCostanzo] and the school resource officer did not convert the meeting into a custodial interrogation.

3. [J.D.B.] was informed that he was free to leave and that he did not have to answer any questions, but chose to stay and volunteer more information.

In my view, the trial court's uncontested and binding findings of fact pertaining to the circumstances surrounding the interrogation lead to the conclusion that "a reasonable person in the position of the defendant would [have] believe[d] himself to be in custody or that he had been deprived of his freedom of action in some significant way."Id.As such, I would hold that: (1) J.D.B. was subjected to custodial interrogation at Smith Middle School; (2) J.D.B. shouldPage 683have beenMirandizedand provided the enhanced protections for juveniles contained in N.C.G.S. §7B-2101; and (3) as a result, the trial court erred in denying his motion to suppress. Therefore, I respectfully dissent.

According to the majority, because the school environment "inherently deprives students of some freedom of action," for a juvenile "to be deemed in custody," the restraint that law enforcement imposes on the juvenile's freedom of action or movement while questioning the juvenile at school must go "well beyond the limitations that are characteristic of the school environment in general." I disagree with this reasoning, primarily because of its potential to seriously undermine the enhanced protections afforded to juveniles by the North Carolina General Assembly, for example, as in N.C.G.S. §7B-2101.See In re T.E.F.,359 N.C. 570,575,614 S.E.2d 296,299(2005) ("Our courts have consistently recognized that `[t]he [S]tate has agreaterduty to protect the rights of a respondent in a juvenile proceeding than in a criminal prosecution.'" (alterations in original) (citations omitted));In re Vinson,298 N.C. 640,652,260 S.E.2d 591,599(1979) (stating this Court's intent "to carefully balance the State's police power interest in preserving order and itsparens patriaeinterest in a delinquent child's welfare with the child's constitutional right to due process"). I fear that the majority here actually affords juveniles less protection when questioned by law enforcement officers at school, as compared to elsewhere. In my opinion, in the school environment, where juveniles are faced with a variety of negative consequences — including potential criminal charges — for refusing to comply with the requests or commands of authority figures, the circumstances are inherently more coercive and require more, not less, careful protection of the rights of the juvenile.

The decision to interview a student at school could be made to take advantage of the student's minority [age]. Questioning the student at school, the officer not only takes advantage of the student's compulsory presence at school and the background norm of submission to authority, but also chooses to interact with the student at a time when the student will not be in the presence of a parent, the figure most likely to have the inclination or ability to either arrange for the presence of counsel or to advise the youth to refuse to answer the officer's questions.

Paul Holland,SchoolingMiranda:Policing Interrogation in theTwenty-First Century Schoolhouse, 52 Loy. L. Rev. 39, 85 n. 175 (2006) [hereinafter Holland,SchoolingMiranda]. I am particularlyPage 684concerned about creating an incentive for an investigating police officer to enter a middle school to question a juvenile about crimes that may have occurred away from school grounds and to take advantage of the more restrictive school atmosphere without providing the protections of N.C.G.S. §7B-2101. I am also concerned about the potential disruption of the learning atmosphere in the school, especially, but not exclusively, for the affected juvenile if this practice became widespread.

Even under the majority's analysis, though, I believe the record here establishes that the restraint on J.D.B.'s freedom of action or movement went "well beyond the limitations that are characteristic of the school environment in general" and thus, subjected J.D.B. to "custodial interrogation." The school resource officer, who was a uniformed police officer, came to thirteen-year-old J.D.B.'s classroom, removed him from class, and "escorted" him to a conference room where two school officials and Investigator DiCostanzo were waiting for him. No effort was made to contact J.D.B.'s parent or guardian before his removal from class or his questioning. For the entire interrogation, which lasted thirty to forty-five minutes, J.D.B. was isolated in a closed-door conference room in the presence of four authority figures, including two law enforcement officers. Contrary to the trial court's conclusion of law, Investigator DiCostanzo, an outside police officer, was not merely present. Rather, it appears that he directed and controlled the interrogation process, which was designed to determine J.D.B.'s role in nonviolent crimes alleged to have occurred outside of school grounds and for which he was a suspect. Despite J.D.B.'s repeated denials of any involvement in the criminal activity, Investigator DiCostanzo continued to question him. At some point during Investigator DiCostanzo's questioning, Assistant Principal David Lyons encouraged J.D.B. to "`do the right thing' and tell the truth." Thereafter, Officer DiCostanzo continued to question J.D.B., confronted him with the stolen camera, and indicated that others had seen the camera in J.D.B.'s possession. Then, J.D.B. made his first incriminating statement, asking if "he would still be in trouble if he gave the items back," also indicating that J.D.B. believed he was currently "in trouble." Investigator DiCostanzo responded that either way "the matter was still going to court" and that he might "have to seek a secure custody order," explaining to J.D.B. that such an order confines a juvenile to a detention center until his court date. After this sequence of events, J.D.B. confessed. I would conclude that considering all of the above circumstances, "a reasonable person in [J.D.B.'s] position . . . would [have] believe[d] himself to be in custodyPage 685or that he had been deprived of his freedom of action in some significant way" by the time Investigator DiCostanzo confronted J.D.B. with the stolen camera.Greene,332 N.C. at 577,422 S.E.2d at 737.

In reaching the opposite conclusion, the majority emphasizes that: (1) Investigator DiCostanzo told J.D.B. that he was free to leave, asked him if he understood that he was not under arrest and did not have to speak to him, and that J.D.B. nodded his head indicating he understood; and (2) J.D.B. was not subjected to severe or direct physical restraint, such as an officer standing guard at the door. However, Investigator DiCostanzo did not inform J.D.B. that he was free to leave and not under arrest untilafterJ.D.B. had incriminated himself in response to the interrogation, without having been informed of hisMirandaand juvenile statutory rights. I would conclude that this process violated bothMirandaand N.C.G.S. §7B-2101(a) and (b) and that the motion to suppress should have been allowed.SeeN.C.G.S. §7B-2101(2007);Missouri v.Seibert,542 U.S. 600,604,159 L. Ed. 2d 643,650(2004) (plurality) (stating that "midstream recitation of [Miranda] warnings after interrogation and unwarned confession" does "not effectively comply withMiranda'sconstitutional requirement");see alsoN.C.G.S. §7B-2101(a)(3) (stating that a juvenile who is in custody "must [also] be advised prior to questioning" of his "right to have a parent, guardian, or custodian present during questioning");id.§7B-2101(b) (stating that for juveniles, such as J.D.B., who are "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").

With regard to stronger indicia of physical control, such as hand-cuffs or an officer standing guard at the door, this Court has never held that one or more of these indicia must be present to support a determination that an individual is in custody. In fact, inBuchananthis Court stated: "Circumstances supporting an objective showing that one is `in custody'might[, not must,] include a police officer standing guard at the door, locked doors or application of handcuffs."353 N.C. at 339,543 S.E.2d at 828(emphasis added). Thus, the absence of such forms of restraint, while a relevant consideration in this inquiry, is not dispositive. Furthermore, "[United States Supreme Court] cases establish that, even if the police do not tell a suspect he is under arrest, do not handcuff him, do not lock him in a cell, and do not threaten him, he may nonetheless . . . be in custody forMirandapurposes."Yarborough v.Alvarado,541 U.S. 652,675,Page 686158 L. Ed. 2d 938,958-59(2004) (Breyer, Stevens, Souter Ginsburg, JJ., dissenting) (citingStansbury v. California,511 U.S. 318,325-26,128 L. Ed. 2d 293,300-01(1994) (per curiam);Berkemer v. McCarty,468 U.S. 420,440,82 L. Ed. 2d 317,335(1984)). Here, law enforcement questioned a thirteen-year-old seventh-grader about nonviolent offenses while he was at school, in a closed room, and in the presence of four authority figures, all adults. Taken with the sequence of events in the interrogation itself, I conclude that J.D.B. was subjected to a custodial interrogation.

As support for its determination that J.D.B. was not subjected to custodial interrogation, the majority cites our recent opinion inIn reW.R.,363 N.C. 244,675 S.E.2d 342(2009). However, that case is both procedurally and factually distinguishable from this one and is of limited to no precedential value in resolving the custody issue here.

InIn re W.R., unlike here, the juvenile failed to make a motion to suppress or to object when his incriminatory statements were offered into evidence, and the juvenile did not assert at the trial level that his incriminatory statements were obtained in violation of either theFifth Amendmentor N.C.G.S. §7B-2101.Id.at 247,675 S.E.2d at 344. As a result, this Court's review was for plain error.Id.In addition, because "no evidence was presented and no findings were made as to . . . the school resource officer's actual participation in the questioning of W.R.[,] . . . the custodial or noncustodial nature of the interrogation[,]. . . . [or] whether the statements were freely and voluntarily made," this Court stated:

After careful review, we are not prepared based on the limited record before this Court to conclude that the presence and participation of the school resource officer at the request of school administrators conducting the investigation rendered the questioning of respondent juvenile a "custodial interrogation," requiringMiranda, warnings and the protections of N.C.G.S. §7B-2101.

363 N.C. at 248,675 S.E.2d at 344. In other words, the record pertaining to law enforcement's role in W.R.'s interrogation was insufficient for this Court to make a determination that the interrogation was custodial.

Also numerous important facts bearing on the custody issue distinguishIn re W.R.from this case. There, unlike here: (1) the assistant principal and the principal, not a law enforcement officer, took the juvenile out of class and "escorted" him to the principal's office after a concerned parent called the school and stated that the juvenilePage 687had possessed a knife at school and on the school bus the previous day; (2) both school administrators questioned the juvenile about the alleged "in school" incident and not about crimes alleged to have occurred outside of school grounds; (3) the school resource officer apparently was not present at the start of questioning and left the room at various points; (4) no outside police officer participated; and (5) school administrators, not law enforcement, controlled the questioning.Id.at 246,675 S.E.2d at 343.

In further contrast to the majority, I believe J.D.B.'s age, thirteen, (and his status as a middle school student) are relevant considerations in determining "whether a reasonable person in the position of the defendant would [have] believe[d] himself to be in custody or that he had been deprived of his freedom of action in some significant way."Greene,332 N.C. at 577,422 S.E.2d at 737.⁵In support of its conclusion that a juvenile's age should not be considered as part of the custody analysis, the majority: (1) states that this Court has not previously considered an individual's age in conducting the custody inquiry, citingIn re W.R.in support; and (2) relies on language fromYarborough v.Alvarado, which states that an "argument [exists] that the custody inquiry states an objective rule designed to give clear guidance to the police, while consideration of a suspect's individual characteristics — including his age — could be viewed as creating a subjective inquiry."541 U.S. at 668,158 L. Ed. 2d at 954(majority) (citation omitted). I do not find this reasoning persuasive here.⁶ThePage 688dissent in the Court of Appeals correctly noted that not considering age "would lead to the absurd result that, when required to determine whether a `reasonable person in the defendant's situation' would consider himself in custody, courts would apply exactly the same analysis, regardless of whether the individual was eight or thirty-eight years old."In reJ.D.B., ___ N.C. App. at ___,674 S.E.2d. at 802(2009) (Beasley, J. dissenting) (citation omitted).

Neither this Court nor the United States Supreme Court has held squarely that age can never be relevant to the custody inquiry. Nor did we conduct a custody analysis inIn re W.R.without considering the juvenile's age. Rather, as noted above, this Court simply determined that the record on appeal regarding the role of law enforcement in questioning the juvenile was insufficient on the custody issue. The majority concedes thatAlvaradois not binding authority on this Court. Furthermore, while the Supreme Court there held that the state court's failure to consider the defendant's age (seventeen) was reasonable in considering custody underMiranda, I conclude that the matter is very different when the interrogation is conducted in school. As Justice O'Connor stated in her concurring opinion inAlvarado, "There may be cases in which a suspect's age will be relevant to the `custody' inquiry underMiranda."541 U.S. at 669,158 L. Ed. 2d at 954-55(O'Connor, J., concurring) (citation omitted). I share the view expressed by Justice Breyer in his dissenting opinion, that a juvenile's youth "is not a special quality, but rather a widely shared characteristic that generates commonsense conclusions about behavior and perception."Id.at 674,158 L. Ed. 2d at 958(Breyer, J., dissenting).

It is clear from the enhanced protections given to juveniles that our General Assembly considers age very important under state law, especially when the juvenile is under fourteen, like J.D.B. "To focus on the circumstance of age in a case like this does not complicate the `in custody' inquiry."Id.at 674-75,158 L. Ed. 2d at 958(citation omitted).

Outside officers conducting interviews at schools are likely doing so only when they are looking for a specific student and thus are likely to already know the student's age. Even if they do not, these officers rely on school staff to assist them in establishing contact with the student. These staff members, of course, have access to the student's records, which will include the age. Seen in this context, courts considering the age of the suspect are notPage 689imposing an extra burden of intuition or information on officers but are instead seeing the interrogation in its full context, as it is likely seen by those involved.

Holland,SchoolingMiranda 85 (footnote omitted). Here, Investigator DiCostanzo specifically testified that he had been informed by school administrators that J.D.B. was thirteen years old before questioning him.

In sum, I would hold that, under all these circumstances, including his age, J.D.B. was in custody while being questioned at Smith Middle School; consequently, his constitutional and juvenile statutory rights were violated due to law enforcement's failure toMirandizehim or to comply with N.C.G.S. §7B-2101and the trial court erred in denying his motion to suppress. Therefore, I respectfully dissent.

Justice TIMMONS-GOODSON joins in this dissenting opinion.