IN THE MATTER OF: Surry County
RICK ALEXANDER PEEPLES No. 02 J 92B
DOB: 12/15/1988
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert O. Crawford, III, for the State.
William B. Gibson, for juvenile-appellant.
CALABRIA, Judge.
Rick Alexander Peeples (“juvenile”) appeals his adjudication
as a delinquent juvenile asserting the trial court erred in denying
his motion to suppress a statement he gave to a police officer. In
the statement, juvenile admitted that he and two friends were
rabbit hunting when they hid their guns at the nearby elementary
school and went riding on four-wheelers. Juvenile was adjudicated
a delinquent for violating N.C. Gen. Stat. § 14-269.2(b), which
prohibits the possession of a rifle on school property. In the
dispositional order, the trial court, inter alia, placed juvenile
on supervised probation for six months and ordered he serve fifty
hours of community service. On appeal, juvenile argues he gave the
statement during a custodial interrogation which violated N.C. Gen.Stat. § 7B-2101. Juvenile also asserts the trial court erred in
failing to grant his motion to dismiss. We disagree and affirm the
orders of the trial court.
Officer Greg Hemric (“Officer Hemric”) testified that on 31
August 2002, he received a report of “four-wheelers and suspicious
people walking on school buses at Cedar Ridge Elementary.” After
seeing a four-wheeler speed off, Officer Hemric searched the school
grounds and, near the outdoor playground equipment, found two
duffle bags containing two .22 caliber rifles and a sleeping bag.
A canine unit tracked a scent from the duffle bags to a home
belonging to one of juvenile's friends. Juvenile and his two
friends each gave statements to the police. At the hearing,
Officer Hemric read juvenile's statement into the record:
'We started rabbit hunting about two p.m. in
the field behind Andrew's house, then went
through the woods looking for rabbits. And we
got to the school, and we said let's go
riding. So we hid the guns and bags on play
equipment and left. And when we came back, we
seen police and we got scared and ran. The
stuff that was in the bags _ I don't know what
it was but I do know there was two .22 rifles
and bullets and hunting bags. But none of the
stuff was mine.'
Officer Hemric explained he first spoke with the juvenile on the
porch of the house, but then “asked him to step to the patrol car.”
Juvenile sat in the police car with Officer Hemric when he wrote
his statement because it was raining outside and there was
insufficient light in the house. Officer Hemric stated he did not
read juvenile his rights, nor did he contact his parents, because
he did not consider the juveniles to be in custody. However,Officer Hemric could not recall telling the boys they were free to
leave, and admitted that if they had tried to leave he “would have
probably tried to have stopped them.” There were nine officers at
the scene. Over objection, the trial court admitted the juvenile's
statement, determining he was not “in custody.” Juvenile appeals.
Juvenile asserts the trial court should have suppressed the
statement. With respect to juvenile interrogation, our statutory
law provides:
(a) Any juvenile in custody must be advised
prior to questioning:
(1) That the juvenile has a right to
remain silent;
(2) That any statement the juvenile does
make can be and may be used against the
juvenile;
(3) That the juvenile has a right to have
a parent, guardian, or custodian present
during questioning; and
(4) That the juvenile has a right to
consult with an attorney and that one
will be appointed for the juvenile if the
juvenile is not represented and wants
representation.
(b) When the juvenile is 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. If an attorney is not present, the
parent, guardian, or custodian as well as the
juvenile must be advised of the juvenile's
rights as set out in subsection (a) of this
section; however, a parent, guardian, or
custodian may not waive any right on behalf of
the juvenile.
N.C. Gen. Stat. § 7B-2101 (2003). As the language of the statute
directs, in accordance with Miranda, these rights arise when a
juvenile is “in custody.” State v. Smith, 317 N.C. 100, 104, 343S.E.2d 518, 520 (1986), overruled on other grounds, State v.
Buchanan, 353 N.C. 332, 340, 543 S.E.2d 823, 828 (2001).
The North Carolina Supreme Court recently discussed the
appropriate test for whether a person is “in custody.” Buchanan,
353 N.C. at 340, 543 S.E.2d at 828. The Court instructed: “based
on United States Supreme Court precedent and the precedent of this
Court, the appropriate inquiry in determining whether a defendant
is 'in custody' for purposes of Miranda is, based on the totality
of the circumstances, whether there was a 'formal arrest or
restraint on freedom of movement of the degree associated with a
formal arrest.'” Buchanan, 353 N.C. at 339, 543 S.E.2d at 828.
The Court explained the proper test is this so-called “ultimate
inquiry” test and not the “free to leave” test, often utilized in
the context of the Fourth Amendment seizure of a person and
occasionally incorrectly applied by our appellate courts to the “in
custody” determination. Id., 353 N.C. at 340, 543 S.E.2d at 828.
Accordingly, to determine whether a juvenile is “in custody” the
test is “whether a reasonable 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.” Id., 353 N.C. at 339-40, 543
S.E.2d at 828; accord State v. Barden, 356 N.C. 316, 337, 572
S.E.2d 108, 123 (2002), cert. denied, ___ U.S. ___, 155 L. Ed. 2d
1074 (2003). Moreover, “[t]his is an objective test, based upon a
reasonable person standard, and is 'to be applied on a case-by-case
basis considering all the facts and circumstances.'” State v.Jones, 153 N.C. App. 358, 365, 570 S.E.2d 128, 134 (2002) (quoting
State v. Hall, 131 N.C. App. 427, 432, 508 S.E.2d 8, 12 (1998),
aff'd, 350 N.C. 303, 513 S.E.2d 561 (1999)(citation omitted)).
In the case at bar, juvenile spoke with an officer on the
porch of his friend's home. The officer asked juvenile to write a
statement in his patrol car because it was raining and the light in
the home was insufficient. We cannot find, under these
circumstances, the fact that juvenile wrote his statement in a
patrol car is sufficient for a reasonable person to believe “he was
under arrest or was restrained in his movement to the degree
associated with a formal arrest.” Our determination is supported
by North Carolina case law. In State v. Hipps, 348 N.C. 377, 399,
501 S.E.2d 625, 638 (1998), our Supreme Court held defendant was
not “in custody” when he got into a patrol car of his own free
will, sat in the front seat, was not handcuffed, was not told he
was under arrest or that he could not leave. Similarly, in the
case at bar, juvenile was asked to sit in the police car but was
not handcuffed, told he was under arrest or informed he could not
leave. See also State v. Parker, 59 N.C. App. 600, 607, 297 S.E.2d
766, 770 (1982) (holding defendant was not in custody when he was
asked by a police officer to sit in the patrol car and defendant
voluntarily agreed); cf. State v. Johnston, 154 N.C. App. 500, 503,
572 S.E.2d 438, 441 (2002), appeal dismissed, 356 N.C. 687, 578
S.E.2d 320 (2003) (holding defendant was in custody when he “was
ordered out of his vehicle at gun point, handcuffed, placed in the
back of a patrol car”). We note that Officer Hemric's statement that he “would have
probably tried to have stopped [juvenile from leaving]” does not
affect this Court's analysis. “'A policeman's unarticulated plan
has no bearing on the question whether a suspect was 'in custody'
at a particular time; the only relevant inquiry is how a reasonable
man in the suspect's position would have understood his
situation.'” Buchanan, 353 N.C. at 341-42, 543 S.E.2d at 829
(quoting Berkemer v. McCarty, 468 U.S. 420, 442, 82 L. Ed. 2d 317,
336 (1984)). Having determined a reasonable man in juvenile's
position would not have believed he was either under arrest or
restrained to the degree of a formal arrest, we affirm the ruling
of the trial court denying juvenile's motion to suppress his
statement on the basis that juvenile was not in custody at the
time.
Juvenile's remaining argument on appeal, that the court
improperly denied his motion to dismiss, was premised upon finding
juvenile's statement should have been suppressed. Accordingly, we
affirm the court's denial of defendant's motion to dismiss.
Affirmed.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***