In re V. R.

DUNN, Chief Justice (on reassignment). V. R. appeals from an order of the circuit court which adjudicated him a delinquent child and committed him to the Youth Forestry Camp until he attained the age of twenty-one or was discharged by the Board of Charities and Corrections. We affirm. On April 17, 1977, a Vermillion police officer contacted V. R.’s mother and requested permission to talk to V. R. concerning the burglary of R-Pizza which had occurred the prior evening. The mother advised the officer that V. R. was not at home and that she was unable to leave because her infant child was asleep. About one hour later, the police officer found V. R. near his residence and “asked him if he would come to the Police Department.” V. R.’s discussion with the police took place from 6 p. m. to 7:30 p. m. On arrival at the station, he was advised of his “Miranda rights” and his right to have his parents present during any questioning. After obtaining an unrecorded statement, the officer drove V. R. to several locations in Vermillion where tape decks taken in automobile burglaries and a bag of marijuana were recovered. The procedure followed was that the officer would let V. R. out of the car and arrange to meet him at a certain time and place, thus letting the juvenile out of his sight several times during the period they were together. V. R. was given his choice of eating supper with the officer or at home, and he chose to eat with the officer. Two recorded confessions were obtained later, after which V. R. was allowed to return home. He was subsequently charged with the burglary of R-Pizza, two counts of burglary involving tape decks, two counts of grand larceny and possession of marijuana. Following a hearing on the juvenile’s motion to suppress the confession and the physical evidence seized as a result thereof, the court ruled both were admissible. The juvenile was convicted of all counts solely on the basis of his confession and the evidence seized as a result thereof. He appeals, contending that the admission of the confession and physical evidence violated the requirements of SDCL 26-8-19.1,26-8-19.2, 26-8-19.3, and his privilege against self-incrimination and his right to counsel. We agree with the state’s contention that the juvenile was not “in custody” and therefore the state had no burden of showing a knowing, intelligent and voluntary waiver of his right to counsel or privilege against self-incrimination. Oregon v. Mathiason, 1977, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714; People v. Wipfler, 1977, 68 Ill.2d 158, 11 Ill.Dec. 262, 368 N.E.2d 870. In Mathiason, supra, the defendant voluntarily appeared at the police station in response to a note left at his apartment. He was told that he was not under arrest but that the police believed he had been involved in a burglary. The police also falsely stated that the defendant’s fingerprints had been found at the scene of the crime. The defendant confessed after sitting in the room for a few minutes. He was then advised of his Miranda rights and gave a taped confession. The police allowed him to return home after the conversation, informing him that the district attorney would determine whether to charge him with the crime. The United States Supreme Court reversed the Oregon Supreme Court’s suppression of the confession, concluding that “there is no indication that the questioning took place in a context [834] where respondent’s freedom to depart was restricted in any way.” 429 U.S. 495, 97 S.Ct. 714, 50 L.Ed.2d 719. Similarly, in Wipfler, supra, the Illinois Supreme Court was confronted with a situation where a juvenile arrived at the police station pursuant to a phone call from the police asking his mother to send him to the station. The police chief, who had been somewhat of a “father figure” to the juvenile, urged the youngster to tell the truth, and detectives then proceeded to question him for approximately an hour about a burglary. As in this case, the juvenile returned several of the stolen items to the police and was then allowed to return home overnight. The Illinois Supreme Court held that the statements were not the result of a custodial interrogation. In this case, there is no evidence of threats or coercion of the juvenile; a large part of the time was spent with the juvenile being out of the sight of the officer; the juvenile was given the option of going home for supper; and he was allowed to return home after the conversation with the officer. These facts convince us that this was not the sort of coercive environment to which the Miranda principle applies and that the juvenile was not in “custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706. Since SDCL 26-8-19.1 through 26-8-19.3 deal with the situation of a juvenile being “in temporary custody,” our conclusion that Y. R. was not in custody renders these statutes inapplicable. Giving due consideration to the trial court’s ability to personally observe the evidence and demeanor of the witnesses, especially that of V. R., and in view of our decision that the questioning was not a custodial interrogation, we affirm the trial court’s order of adjudication of V. R. as a delinquent juvenile. WOLLMAN and MORGAN, JJ., concur. ZASTROW and PORTER, JJ., dissent.