In re B.C.

Bassett, J. The State appeals an order of the Circuit Court {Sullivan, J.) granting the motion of the juvenile, B.C., to suppress a statement obtained in violation of her rights under Miranda v. Arizona, 384 U.S. 436 (1966), and State v. Benoit, 126 N.H. 6 (1985). We affirm. I. Factual Background The trial court found, or the record establishes, the following facts. The juvenile, who was fourteen years of age at the time, was arrested for shoplifting merchandise from “Claire’s,” a discount jewelry store in the Rockingham Mall. She was transported, in handcuffs, to the Salem Police station. At the station, the handcuffs were removed, and the juvenile was taken to the booking room, which has a locked entry. The arresting officer telephoned the juvenile’s mother to pick her up. While in the booking room, the juvenile asked if she could use the bathroom. An officer allowed her to use the bathroom in one of the holding cells. Another officer observed her via a closed circuit monitor in the supervisor’s office. He saw the juvenile “just... flush the toilet” and believed that “[i]t looked like she had flushed something down the toilet.” The officer,- who had observed the juvenile, spoke with the arresting officer, and the arresting officer asked the juvenile “what she had flushed down the toilet.” The juvenile told the arresting officer “that it was a necklace that she had taken and ... had concealed in her pants.” The officer did not inform the juvenile of her Miranda rights before questioning her or at any other time. The juvenile remained at the police station until her mother picked her up. After she admitted to flushing the necklace down the toilet, the juvenile was charged with falsifying evidence. After a hearing in August 2011, she was found delinquent. During the merits hearing, she moved to suppress her admission on the ground that it was the product of custodial interrogation and that she was not advised of her Miranda rights before making it. The court denied her motion, and the juvenile appealed. We remanded the case for further fact finding. On remand, the trial court conducted an evidentiary hearing at which the arresting officer was the only witness. At the hearing, the juvenile argued — 341 — that suppression of her response to the officer’s question was required by both Part I, Article 15 of the State Constitution and the Fifth Amendment to the Federal Constitution. Following the hearing, the court granted the juvenile’s motion to suppress her admission, and the State filed the instant appeal. The juvenile has not participated in this appeal. We have allowed the New Hampshire Appellate Defender Program to appear as amicus curiae. II. Legal Background The Fifth Amendment to the Federal Constitution, which applies to the States by virtue of the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 6 (1964), provides: “No person... shall be compelled in any criminal case to be a witness against himself.” Part I, Article 15 of the State Constitution similarly provides: “No subject shall be ... compelled to accuse or furnish evidence against himself.” In Miranda, the Supreme Court “addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of a custodial interrogation.” Berkemer v. McCarty, 468 U.S. 420, 428 (1984). “[T]he Court saw as inherently coercive any police custodial interrogation conducted by isolating the suspect with police officers; therefore, the Court established a per se rule that all incriminating statements made during such interrogation are barred as ‘compelled.’ ” United States v. Washington, 431 U.S. 181, 187 n.5 (1977). The Court stated that “[e]ven without employing brutality [or] the ‘third degree’..., the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.” Miranda, 384 U.S. at 455. Consequently, the Court reasoned, “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id. at 458; see Maryland v. Shatzer, 559 U.S. 98, 103 (2010). “To counteract the coercive pressure, Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney.” Shatzer, 559 U.S. at 103-04; see Miranda, 384 U.S. at 444, 467-73. The central principle of Miranda is that “if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt.” Berkemer, 468 U.S. at 429. In Benoit, we held that Part I, Article 15 of the — 342 — State Constitution entitled a juvenile to be informed of her Miranda rights “in language understandable to a child.” Benoit, 126 N.H. at 19. Here, the trial court determined that the juvenile did not receive the procedural safeguards required by Miranda and Benoit before the officer questioned her regarding the object that she had flushed down the toilet. The trial court impliedly concluded that she was entitled to those safeguards because she was subject to custodial interrogation. III. Analysis As a general rule, two conditions must be met before Miranda and Benoit warnings are required: (1) the suspect must be “in custody”; and (2) she must be subject to “interrogation.” See Miranda, 384 U.S. at 478. The State appears to dispute that either condition was met in this case. We first address the State’s claims under the State Constitution and rely upon federal cases only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983). “Because the ultimate determination of custody requires an application of a legal standard to historical facts, it is not merely a factual question but a mixed question of law and fact.” State v. Ford, 144 N.H. 57, 62 (1999). Thus, we review the ultimate determination of custody de novo. Id. at 63. ‘We will not overturn the trial court’s factual findings relevant to the question of custody unless they are contrary to the manifest weight of the evidence.” State v. Jennings, 155 N.H. 768, 772-73 (2007). The State has not challenged any of the trial court’s factual findings on appeal. A. Custody “Custody entitling a defendant to Miranda protections requires formal arrest or restraint on freedom of movement to the degree associated with formal arrest.” Id. at 772 (quotation omitted). “Absent a formal arrest, the trial court must determine whether a suspect’s freedom of movement was sufficiently curtailed by considering how a reasonable [person] in the suspect’s position would have understood his situation.” Ford, 144 N.H. at 63 (quotation omitted). To determine whether a reasonable person in a suspect’s position would believe herself to be in custody, the trial court should consider the totality of the circumstances of the encounter, including: the suspect’s familiarity with her surroundings, the number of officers present, the degree to which the suspect was physically restrained, and the interview’s duration and character. State v. McKenna, 166 N.H. 671, 677 (2014). Like the analysis used by other courts, our custody analysis is binary: we determine whether the suspect either is under formal arrest or has had her freedom of movement restricted to. the degree associated with formal arrest. See J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402 (2011) — 343 — (observing that to determine custody for Miranda purposes, “the ultimate inquiry” is “was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest” (quotation omitted)); McKenna, 166 N.H. at 679 (observing that “[c]ustody for Miranda purposes can arise because of a formal arrest or the functional equivalent of arrest”); Jennings, 155 N.H. at 772 (noting that the court determines whether the suspect’s freedom of movement has been sufficiently curtailed only “[i]n the absence of formal arrest”). Using our well-established custody analysis, there can be no question that the juvenile was in custody for Miranda and Benoit purposes. When she was interrogated, she was under formal arrest and had been taken to the police station. This is “the paradigmatic Miranda situation,” in which a person has been “arrested . . . and whisked to a police station for questioning.” Howes v. Fields, 132 S. Ct. 1181, 1190 (2012). She was subject to “incommunicado” interrogation in the very same “unfamiliar,” “police-dominated atmosphere,” as were the defendants in Miranda. Miranda, 384 U.S. at 456-57. She was interrogated in the very environment that the Court in Miranda decided involved “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. The State contends, however, that we should not apply our traditional test for determining custody, but should apply a test that we have previously applied only to prison and jail inmates. See Ford, 144 N.H. at 63-64. The State further contends that, under the test we apply to prison and jail inmates, the defendant was not “in custody.” In Ford, we held that “[w]hen a defendant is already incarcerated at the time of interrogation, the traditional custody analysis is inappropriate.” Id. at 63. This is so because our traditional analysis focuses upon the degree to which a suspect’s “freedom of movement” is curtailed. Id. Because, “by its very nature, a prison setting restrains the freedom of movement of its inmates,” we observed that applying our “traditional analysis” to “prisoner interrogation would lead inexorably to a per se rule that all interrogations of prison inmates are custodial.” Id. We eschewed adopting such a per se rule, and, instead, held that “when an individual is incarcerated for an offense unrelated to the subject of his interrogation, custody for Miranda purposes occurs when there is some act or circumstance that places additional limitations on the prisoner.” Id. In Ford, we concluded that the defendant was not in custody when he was interviewed by police officers because: (1) he was interviewed “in a relatively [non-]coercive area of the prison, the correctional officers’ lunch room, not a prison cell or interrogation room”; (2) he “was not pressured to — 344 — disclose information”; (3) he “was free to terminate the interview” and, at one point, did so, only to “call[ ] the officers back and agree[ ] to speak with them”; (4) he “largely controlled the topics discussed”; and (5) until he implicated himself, the officers did not consider him a suspect in the robbery to which he confessed. Id. at 64. We concluded that, because the circumstances surrounding the officers’ questioning did not “impose[ ] any additional restraint on the defendant’s freedom of movement,” the defendant was not in custody. Id. We have applied Ford to a defendant confined pretrial at a county jail, see State v. Pehowic, 147 N.H. 52, 53, 55 (2001), and to a defendant who was at a county jail serving a sentence on a parole violation, see State v. Dorval, 144 N.H. 455, 455, 457 (1999). Ford’s “additional limitations” test is consistent with the test used by numerous other jurisdictions. See, e.g., Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir. 1978); United States v. Conley, 779 F.2d 970, 973 (4th Cir. 1985); see also 2 W. LaFave ET AL., CRIMINAL PROCEDURE § 6.6(b), at 724-25 (3d ed. 2007) (citing cases and explaining that “a unique body of caselaw has developed about the need for Miranda warnings in a prison setting” (quotation omitted)). Ford is also consistent with Fields, 132 S. Ct. at 1192. In Fields, the Supreme Court declined to adopt a per se rule that a prison inmate is in custody for Miranda purposes solely because of his incarceration, and, instead, ruled that “[w]hen a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation,” including “the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.” Fields, 132 S. Ct. at 1192. The State asserts that the “additional limitations” test applies to the juvenile because “she was not questioned about the crime for which she was arrested.” We disagree with the State that the question to the juvenile was not about the shoplifting offense for which she was arrested. Moreover, even if the question concerned a different offense, we conclude that our traditional custody analysis would still apply. See Mathis v. United States, 391 U.S. 1 (1968), clarified by Fields, 132 S. Ct. at 1188; see also 2 LaFave supra § 6.6(b), at 724 (“Miranda applies to interrogation of one in custody for another purpose or with respect to another offense”); 1 C. WRIGHT & A. Leipold, Federal Practice and Procedure: Criminal § 75, at 206 (4th ed. 2008) (“If a person is in custody, the Miranda rules apply even though the interrogation of him relates to an investigation unrelated to the reason he is in custody.”). The State argues that the “additional limitations” test should control regardless of whether “a juvenile is being held under arrest in a police station” or is subject “to a more lengthy detention, such as in a youth facility.”- However, like the United States Supreme Court, we discern an — 345 — important distinction between an arrestee, who is temporarily detained in a police station booking room, on one hand, and an inmate in a prison or jail, on the other hand. As the Court observed in Fields, a person who is arrested “is cut off from his normal life and companions and abruptly transported from the street into a police-dominated atmosphere.” Fields, 132 S. Ct. at 1190 (quotations and citations omitted). By contrast, “questioning a person who is already serving a prison term” generally does not “involve the shock that very often accompanies arrest.” Id. Moreover, an arrestee is subject to a “sharp and ominous change” in environment when arrested and then “whisked to a police station for questioning,” and the shock of such a change “may give rise to coercive pressures.” Id. “By contrast, when a person who is already serving a term of imprisonment is questioned, there is usually no such change” in environment. Id. at 1190-91. “Interrogated suspects who have previously been convicted of crime live in prison,” and the “ordinary restrictions of prison life . . . are expected and familiar and thus do not involve the same inherently compulsive pressures that are often present when a suspect is yanked from familiar surroundings . . . and subjected to interrogation in a police station.” Id. at 1191 (quotation omitted). Additionally, “[w]hen a person is arrested and taken to a [police] station... for interrogation, [he]... may be pressured to speak by the hope that, after doing so, he will be allowed to leave and go home.” Id. “On the other hand, when a prisoner is questioned, he knows that when the questioning ceases, he will remain under confinement.” Id. Further, a prisoner, serving a sentence after conviction, “knows that the law enforcement officers who question him lack the authority to affect the duration of his sentence.” Id. “In short,” arrest, unlike the “standard conditions of confinement” for a prison or jail inmate, necessarily implicates the very interests that the Supreme Court “sought to protect when it afforded special safeguards to persons subjected to custodial interrogation.” Id. The State has cited, and we have found, only one case that applies the “additional limitations” test to an arrestee temporarily detained while awaiting further processing. See Herrera v. State, 241 S.W.3d 520 (Tex. Crim. App. 2007). The suspect in Herrera was involved in a fight outside of a bar. Id. at 522. After he was questioned, he was arrested on an outstanding warrant and transported to the county jail. Id. The next morning, he was interviewed at the jail about the fight and told a police investigator that he had a knife during the fight, although he denied using it. Id. at 522-23. He sought to suppress his statement on the ground that, when he was questioned, he was in custody “because he was an inmate in the county jail.” Id. at 527. The court “refuse[d] to equate incarceration — 346 — with ‘custody’ for purposes of Miranda when an inmate is questioned ... about an offense unrelated to the inmate’s incarceration.” Id. at 532. Instead, the court applied a test similar to our “additional limitations” test and determined that, under that test, the suspect was not in custody for Miranda purposes. Id. at 532-33. Herrera is distinguishable from this case. Unlike the arrestee in Herrera, who was interrogated after having been detained overnight in a county jail, the juvenile was interrogated shortly after having been arrested, while she was still in the booking room of the police station and, arguably, while she was still under the shock that accompanied her original arrest. See Fields, 132 S. Ct. at 1190. Additionally, while the arrestee in Herrera was an adult, the juvenile was fourteen years old at the time of her arrest, and, therefore, was more likely to feel coercive pressure as a result of her arrest. See J.D.B., 131 S. Ct. at 2402-08. Moreover, even if this case were not factually distinguishable, Herrera, standing alone, does not persuade us that we should apply the “additional limitations” test to the facts of this case. Here, because we have concluded that the juvenile was in custody for Miranda purposes, she was entitled to Miranda and Benoit warnings, before being subject to “interrogation.” We turn next to analyzing whether she was, in fact, interrogated. B. Interrogation “Interrogation for Miranda purposes occurs when a person in custody is subjected to either express questioning or its functional equivalent.” State v. Gribble, 165 N.H. 1, 11 (2013) (quotation omitted). The functional equivalent of interrogation refers to “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980). “The functional equivalent aspect of the term focuses primarily upon the perceptions of the suspect, rather than the intent of the police.” Gribble, 165 N.H. at 11 (quotations omitted). “This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.” Id. at 11-12 (quotation omitted). In this case, the juvenile was directly asked about what she flushed down the toilet. Given that she had just been arrested for shoplifting jewelry, we have “a difficult time reaching the conclusion that the question was meant to do anything other than garner a potentially incriminating response” from the juvenile. United States v. Stately, Criminal No. — 347 — 13-280(1)(DWF/LIB), 2014 WL 668167, at *7-8 (D. Minn. Feb. 20, 2014) (determining that asking a suspect whether there were any guns in the vehicle constituted interrogation when he had been stopped because he was suspected of having fired a gun, was “unequivocally in custody,” and the question was reasonably likely to elicit an incriminating response). Accordingly, we hold that she was subject to interrogation within the meaning of Miranda. The State argues that, even though the juvenile was in custody, she was not “interrogated” for Miranda purposes but was, instead, subject to “[g]eneral on-the-scene questioning.” Miranda, 384 U.S. at 477. The State’s argument is based upon the following passage from Miranda: Our decision is not intended to hamper the traditional function, of police officers in investigating crime. When an individual is in custody on probable cause, the police may, of course, seek Nut evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. Id. at 477-78 (citation omitted). However, the State has not cited, nor have we found, any case in which a court has allowed “on-the-scene questioning” of a suspect who is already in custody for Miranda purposes. Miranda warnings are not required for “on-the-scene” questioning precisely “because the individuals being questioned are not in custody at all and there is no coercive atmosphere.” United States v. Thomas, Crina. No. 12-128 (MJD/JJK), 2012 WL 6812536, at *8 (D. Minn. Dec. 19, 2012) (emphasis added). The questioning here occurred shortly after the juvenile was arrested, and, therefore, in custody for Miranda purposes. Moreover, the question itself revealed to the juvenile that she was being observed while using the toilet. The questioning here did not take place in a non-coercive atmosphere. “[T]he circumstances of this case simply do not involve general on-the-scene questioning of the type the Supreme Court discussed in Miranda.” Id. “This case involves a coercive pressure on a restrained individual’s will that is fundamentally different than the non-coercive atmosphere when an officer meets with citizens on the street or in their homes to ask questions as part of the fact-gathering part of investigation.” Id. The pointed question — 348 — in this case, asking the juvenile what she flushed down the toilet, “was not benign.” Stately, 2014 WL 668167, at *8. Asking the juvenile that question, shortly after she was formally arrested for shoplifting, transported in handcuffs to the police station, and detained in a locked booking room, “is fundamentally different from a police officer . . . askfing] unrestrained citizens what they know about a suspected crime.” Thomas, 2012 WL 6812536, at *8. 1 In support of its “on-the-scene questioning” argument, the State relies entirely upon cases involving questioning an inmate in a prison, jail, or juvenile detention facility. See Cervantes, 589 F.2d at 426-27 (county jail); In re D.F., 951 N.E.2d 99, 100-01 (Ohio Ct. App. 2011) (juvenile detention facility); In re JOE L., No. B180443, 2006 WL 696693, at *1 (Cal. Ct. App. Mar. 21,2006) (juvenile correctional facility);* In re Jacob R., No. 1 CA-JV 09-0143, 2010 WL 1729881, at *1 (Ariz. Ct. App. Apr. 29, 2010) (juvenile correctional facility). In all of these cases, the suspects were deemed not to be in custody for Miranda purposes when they were subjected to “on-the-scene questioning.” See Cervantes, 589 F.2d at 429; In re D.F., 951 N.E.2d at 103; In re JOE L., 2006 WL 696693, at *2-3; In re Jacob R, 2010 WL 1729881, at *2-3. None of these cases requires us to conclude that in this case, there was only on-the-scene questioning or that the juvenile was not subject to custodial interrogation. Moreover, the State does not contend that there was a public safety emergency that necessitated asking the juvenile the question without first advising her of her Miranda and Benoit rights. See New York v. Quarles, 467 U.S. 649, 657-58 (1984) (recognizing a “narrow” public safety exception to Miranda based upon court’s conclusion “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination”); State v. Lopez, 139 N.H. 309, 311 (1994) (leaving open the question of whether we recognize a “public safety” exception to Miranda under the State Constitution). Were we to hold that the officer’s question about what the juvenile flushed down the toilet constituted merely general “on-the-scene questioning” not subject to Miranda, we would create an exception to Miranda that would swallow the rule. We decline to do so. Although the State suggests that this is “an absurd result,” we disagree — it is the result that Miranda requires. — 349 — IV. Conclusion In sum, we conclude that the juvenile in this case was in custody for Miranda and Benoit purposes when she was interrogated in a locked booking room in the police station, shortly after she was arrested. Because she was entitled to receive, but did not receive, Miranda and Benoit warnings before being interrogated, her admission that she flushed a necklace down the toilet was the product of custodial interrogation and, as such, was properly suppressed. In light of the result we reach under the State Constitution, we need not reach the State’s arguments under the Federal Constitution. See Ball, 124 N.H. at 237. Affirmed. DALIANIS, C.J., and Hicks and CONBOY, JJ., concurred; Lynn, J., dissented. Footnotes [*] Although California Rule of Court 8.1115 provides that “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication ... must not be cited or relied on by a court or a party in any other action,” we cite In re JOE L., No. B180443, 2006 WL 696693 (Cal. Ct. App. Mar. 21, 2006), because the State has relied upon it.