State ex rel. Juvenile Department v. McCluskey

RICHARDSON, J. 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, [578] 603 P2d 1376 (1979); State v. Paz, 31 Or App 851, 572 P2d 1036 (1977), reu den 282 Or 189 (1978). 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 [579] defendant and specifically told him not to talk with the defendant. Despite this warning, Reed subtly questioned him and gained additional information respecting the robbery and disclosed that information to the police. They ultimately encouraged Reed to talk to the defendant, delayed his transfer to the federal penitentiary and had him assigned to the defendant’s cell. 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. [580] The exclusionary rule, having as its objective the future deterrence of police overreaching in a constitutional sense, should not be applied beyond the limits of its goal. See State v. Quinn, 290 Or 383, 623 P2d 630 (1981). The investigating officers in this case would be surprised to learn that they were involved to any extent in the father and son conversation. There was simply no official involvement that requires us to exclude the statement made to the father. 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. [581] The police report recites that the resident of the burglarized residence reported a number of items stolen including several dollars in pennies and three 1/10 pint bottles of liquor. The report described the three bottles by brand names. The police report showed that the three liquor bottles found in the child’s backpack were of the same size and brand names as the bottles reported stolen. Also found in the backpack were seven dollars in pennies. The report states that a neighbor of the burglarized residence identified a photograph of the child as a person she had seen near the burglarized house on the day of the burglary. The child’s father testified during the hearing on the motion to suppress that the child had told him about the burglary and gave him essentially the same details the child had given the police. 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.