An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1321


Filed: 19 July 2005

R.H.                                 Durham County
                                No. 04 J 56

    Appeal by juvenile from order entered 8 July 2004 by Judge Richard G. Chaney in the District Court in Durham County. Heard in the Court of Appeals on 20 June 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Michael J. Reece, for juvenile-appellant.

    HUDSON, Judge.

    The court adjudicated juvenile delinquent and placed him under court supervision for committing misdemeanor larceny. He appeals, and as explained below, we affirm.
     The State's evidence tends to show that the fourteen-year-old juvenile and his mother lived in a house with juvenile's sister and two other males. One of the males reported to juvenile's mother that his DVD player was missing. Juvenile's mother reported the matter to the police, as well as her suspicion that the juvenile may have taken it. An officer came to the house on 7 February 2004 and questioned juvenile in his mother's presence. Juvenile denied having taken anything.
    On 11 February 2004, Sergeant Will Oakley of the JuvenileDivision of the Durham County Sheriff's Department, contacted juvenile's mother and obtained her consent to talk to juvenile at his school. At the school, juvenile gave a statement to Sergeant Oakley confessing that he took the DVD player and sold it for $25.00 so he could buy his girlfriend flowers and a teddy bear.
    Juvenile's sole contention on appeal is that the court erred by denying his motion to suppress his confession on the ground he was not advised of his juvenile rights in compliance with N.C. Gen. Stat. § 7B-2101 and the North Carolina and United States constitutions. The statute 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.

N.C. Gen. Stat. § 7B-2101(a) (2003). These warnings, consistent with Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706- 707 (1966), apply only when the juvenile is in custody. State v. Gaines, 345 N.C. 647, 661-62, 483 S.E.2d 396, 405, cert. denied, 522 U.S. 900, 139 L. Ed. 2d 177 (1997). Our Supreme Court has clarified that the appropriate inquiry to make in determining whether one is “in custody” is whether, based upon the totality ofthe circumstances, “there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” State v. Buchanan, 353 N.C. 332, 339, 543 S.E.2d 823, 828 (2001) (internal citations omitted). The trial court's determination as to whether or not one is in custody is a conclusion of law and our review of that determination is de novo. State v. Crudup, 157 N.C. App. 657, 659, 580 S.E.2d 21, 23 (2003).
    Juvenile objected to admission of the statement. During voir dire, Officer Oakley testified that after obtaining the permission of juvenile's mother to speak to him, he went to the principal's office at the school and requested to speak to juvenile. He wore his badge and a gun when he and the juvenile went into an office at the school. Officer Oakley identified himself and the reason for wanting to talk to juvenile. He told juvenile that he was not under arrest. He further explained that the juvenile could leave and return to class at any time and that regardless of what juvenile told him that day, he would not arrest juvenile.
    Juvenile testified that when he came to the principal's office and met Officer Oakley, he felt intimidated and that he did not leave the room because he was afraid the officer would call his mother and his departure would arouse suspicion. On cross examination, juvenile testified that the officer did not place him under arrest and did not threaten him. He also testified that the officer did tell him he could leave, and also told him that he did not have to talk to the officer.
    After hearing arguments of counsel, the court stated:        Well, the evidence is pretty clear that the officer told [R] that he was free to leave. [R] knew he was free to leave. He chose not to leave because he didn't want the officer to call his mother and tell her that. He didn't want to _ he was afraid that if he left, he would cause suspicion, but that's not _ that doesn't make it a custody.

Thereupon, the court denied the motion to suppress.
    The trial court appeared to conclude that because juvenile was “free to leave” the room, he was not in custody. Under the “formal arrest” test articulated by the Supreme Court in Buchanan, we reach the same conclusion. See State v. Kornegay, 149 N.C. App. 390, 395, 562 S.E.2d 541, 545, appeal dismissed and disc. review denied, 355 N.C. 497, 564 S.E.2d 51 (2002). The evidence is undisputed that (1) the officer did not place juvenile under arrest or threaten him with arrest, (2) the officer did tell juvenile that he was free to leave at any time, and (3) the officer told juvenile that he did not have to talk to the officer. Under these circumstances, we conclude juvenile was not in custody at the time he made the inculpatory statement. We overrule juvenile's assignments of error related to the admission of this statement.
    Judges MCGEE and LEVINSON concur.
    Report per Rule 30(e).

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