652 P.2d 812 | Or. Ct. App. | 1982
Lead Opinion
In this juvenile proceeding, the child appeals from the juvenile court’s disposition order. The court found the child to be within its jurisdiction after determining that he had committed acts which, if committed by an adult, would have constituted burglary in the first degree. He contends that his motion to suppress “any and all oral admissions and confessions” should have been granted. We affirm, despite the court’s improper admission of a portion of the evidence.
The child was taken into custody by the police at a bus depot on the basis of a report that he was a runaway. The child’s father, who had requested that the child be taken into custody, told the police that the child had several knives in his backpack. The police searched the backpack and, in addition to the knives, found three 1/10 pint bottles of alcoholic liquor and seven dollars in pennies. The officer asked the child where he had got the bottles of alcohol and was told by the child that he had taken them from a Pay Less Store. The child was taken to the juvenile detention facility. The officer told him that he did not believe the alcohol came from Pay Less, and the child then said that he and a friend had taken them from a house. At this point the officer advised the child of his constitutional rights and questioned him regarding the burglary. The child gave a detailed account of breaking into the house and stealing certain items.
The father was present at the detention facility when the police advised the child of his rights and was present during a part of the subsequent questioning. Following the child’s admissions to the police, he and his father had a private conversation at the detention facility out of the officers’ presence. The child confessed details of the burglary to the father.
At the juvenile court hearing, the child moved to suppress all admissions and confessions, but the motion was denied. The state concedes that the court erred in denying suppression of the statements made to the police prior to and immediately after the child was advised of his rights. Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1963); State v. Mendacino, 288 Or 231,
The remaining question is whether the confession to his father is evidence that should have been suppressed. The child argues that, under Miranda, Mendacino and Paz, suppression is required, because the confession was made immediately after the improperly obtained admissions were made to the police and at the same location. See State v. Mendacino, supra, 288 Or at 237 (quoting United States v. Bayer, 331 US 532, 540-41, 67 S Ct 1394, 91 L Ed 1654 (1947)).
The juvenile does not contend that his statement to his father was involuntary in the sense that it was not a product of his free will and was therefore unreliable. He only contends that his father was an agent of the police when he talked to him about the burglary and, thus, that any statement to his father must be suppressed as the tainted fruit of the unlawful confession to the police.
While the confession to the father was very close in time and location to the admissions to the police, those circumstances do not automatically require that the exclusionary rule be invoked. We have noted: “No hard and fast rule has been established for determining when official involvement is sufficient to bring the exclusionary rule into effect. Each case must be evaluated on its own facts.” State v. Lowry, 37 Or App 641, 652, 588 P2d 623 (1978), reu den 285 Or 195 (1979).
The statements involved in Lowry were given by the defendant to his cellmate, Reed, who was awaiting transfer to a federal penitentiary. Reed was a known informant. In the past he had obtained information and given it to the police in exchange for a variety of rewards. On the particular occasion involved in that case, Reed contacted the police and told them that he could get incriminating information from his cellmates. The police encouraged him to talk to a particular individual in the jail. Reed, in addition to conversing with that person, talked to the defendant and obtained information linking the defendant to a robbery. Reed contacted the police and told them about the defendant. They discouraged Reed’s contacts with the
The trial court suppressed all statements of the defendant given to Reed. We affirmed the order of suppression only as to the information obtained after the police actively encouraged Reed’s activities and delayed his transfer to afford him the opportunity to talk to the defendant. As to the other statements, we held that they were admissible because the police had not been actively involved in Reed’s questioning of the defendant. Thus, we held that Reed was not a police agent, even though he consciously desired that status and the police were aware of his propensities.
The appropriate rule, recited in Lowry, is that the exclusionary rule applies to activities of private individuals if the police are “directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting his activities.” The extent of official involvement in the total enterprise is the crucial element. State v. Becich, 13 Or App 415, 509 P2d 1232, rev den (1973). As demonstrated by our holding in Lowry, the involvement and intent of a private individual are relevant only insofar as they are initiated, planned, controlled or supported by the police.
Father’s involvement was based on the father-son relationship and his desire to put the 13-year-old runaway in a secure environment. His cooperation with the police reflects understandable parental concern. His cooperation was not as an investigative arm of the police bureau. The investigating officers had already obtained a fully incriminating statement from the juvenile and had no need to enlist the aid of his father to obtain a confession. In Lowry and Becich we applied the exclusionary rule in situations where the police consciously utilized the services of a non-law enforcement person to do what they were constitutionally prohibited from doing, i.e., the police were a party to the evidence gathering activities in both cases.
Our review is de novo, and we may determine from the record whether, after excising the statements made to the police, there is sufficient evidence to establish beyond a reasonable doubt that the child committed the burglary. Prior to the hearing on the motion to suppress, the child’s attorney stated:
“Basically the motion should be dispositive as far as we are concerned. If we lose on the motion, we would probably stipulate to the facts in this case and reserve the right of appeal, but we won’t have a trial. * * * ”
After the court denied the motion, the following colloguy occurred:
“THE COURT: Mr. Wong [the child’s attorney], does your stipulation still hold?
“MR. WONG: That’s right, Your Honor. We are going to stipulate to the facts in the police report. I will not put on any evidence. The only reason for that is we want to preserve our right to appeal on the motion to suppress.
“THE COURT: Have you reviewed the police report, Mr. Wong, sufficiently so that the facts as set forth on the petition of 4-22-81 alleging Burglary in the First Degree are substantiated by the police report insofar as the dates and time and actual location of the property in question?
“MR. WONG: Yes, I have.
“THE COURT: And also the items that were alleged to have been taken? Are they accurately described in the police report or are there any discrepancies you can see from the police report and the allegation set forth in the petition?”
Counsel, after further discussion, agreed that the police report accurately reflected the facts of the burglary.
The statement by the child to his father was properly received. That statement is part of the record and can be considered in determining if the state met its burden of proof. That statement, in conjunction with the other admissible facts from the police report, establish the allegations of the petition beyond a reasonable doubt.
Affirmed.
Dissenting Opinion
dissenting.
Steven McCluskey, age 13, appeals from an order of the juvenile court finding him to be within the court’s delinquency jurisdiction. ORS 419.476(1)(a).
When Steven ran away from home, his father reported that fact to the police. Later, father informed the police that Steven was at the bus depot. The police arrived
Steven was transported to juvenile detention about 12:26 a.m. There the police questioned him about a burglary without first advising him of his Miranda rights.
The police then left the room, leaving father and son behind in detention. Within minutes they had a conversation, during which father asked Steven about the burglary. When asked at the hearing what Steven had told him about the burglary, father testified:
“A: Just told me that they had gone into a house and that they had taken a few things. I wanted to know where the house was. I asked him why he had done it and he didn’t seem real clear on why he had done it other than they needed the money and it was just they did it.”
About 1:17 a.m., the police took Steven to the burglary scene. They continued to interrogate him, and he made more inculpatory statements.
Steven’s attorney moved to suppress the statements to the police and to father. The juvenile court denied that motion. Without waiving objection, the attorney then stipulated to the police report, which was received in evidence. The court thereupon found that Steven was within its delinquency jurisdiction. ORS 419.476(l)(a).
The issue is whether father was acting on his own, independently of the police. State v. Lowry, 37 Or App 641, 588 P2d 623 (1978), rev den 285 Or 195 (1979). If he was, the exclusionary rule would not apply. Burdeau v. McDowell, 256 US 465, 41 S Ct 574, 65 L Ed 1048 (1921). The rule applies if the police were directly or indirectly involved to a sufficient extent in initiating, planning, controlling or supporting the father’s activities. State v. Lowry, supra.
I conclude that father was not acting on his own, independently of the police, and that the police were directly or indirectly involved to a sufficient extent in supporting father’s activities that the exclusionary rule applies to Steven’s statements to his father.
The majority finds it persuasive that the police already had obtained a statement from Steven and therefore “had no need to enlist the aid of his father to obtain a confession.” The evidence does not support such a conclusion. The police had every reason to know that the statements they had obtained from Steven were inadmissible. That conclusion was so patent that the state conceded error on the issue in this court. Immediately thereafter, the police left father and Steven together within the coercive confines of juvenile detention where father commenced interrogating him about the burglary. To countenance this result is to permit the police to do indirectly what they could not do directly because of their failure to advise Steven of his Miranda rights.
Because the police were so directly involved in supporting father’s activities, the exclusionary rule requires suppression of the statement to father. Absent evidence of the statements to the police and to father, the record here is insufficient to support the juvenile court’s jurisdictional finding.
ORS 419.476 provides:
“(1) The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:
“(a) Who has committed an act * * * which if done by an adult would constitute a violation, of a law *** of*** a state * * *.
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See In Re Gault, 387 US 1, 87 S Ct 1428, 18 L Ed 2d 527 (1967).
State v. Mendacino, 288 Or 231, 603 P2d 1376 (1979); State v. Keller, 240 Or 442, 402 P2d 521 (1965); State v. Ely, 237 Or 329, 332, 390 P2d 348 (1964); State v. Paz, 31 Or App 851, 873-74, 572 P2d 1036 (1977); State v. Garrison, 16 Or App 588, 519 P2d 1295, rev den (1974); accord State v. Allies,_Mont_, 621 P2d 1080 (1980).
That the state has failed to establish jurisdiction on the basis of delinquency certainly does not imply that the juvenile court could not find jurisdiction on some other basis and pursuant to a new petition. See, e.g., ORS 419.476(1)(b) (beyond control of parents); ORS 419.476(1) (c) (behavior, condition or circumstances); ORS 419.476(1)(e) (care, guidance and protection necessary for well-being); ORS 419.476(1)(f) (runaway). After finding that it has jurisdiction on any basis, the juvenile court would be empowered to enter the identical dispositional order entered here, thus meeting the needs of the child, family and society.
