504.1Juvenile Custody and Questioning
- Juveniles may be taken into temporary custody under the same circumstances which would justify arrest of an adult offender, but the juvenile may only be placed in secure or nonsecure custody pending adjudication pursuant to a court order.
- Juveniles in custody have (and must be advised of) the right to remain silent, and the right to have both an attorney and a parent/guardian present during questioning.
Temporary, Secure, and Non-secure Custody
Terms such as “arrest,” “pretrial release,” and “bond” are not applicable when a juvenile is detained pending issuance of a petition, or when a juvenile is placed in secure or nonsecure custody pending an adjudication hearing on the petition. Instead, a juvenile may be placed in “temporary custody” while a petition is sought, and thereafter may be placed in “secure custody” or “nonsecure custody” until adjudication. A juvenile is entitled to periodic hearings on the need for continued pre-adjudication custody, as discussed in the related Juvenile entry on Secure Custody Hearings. See G.S. 7B-1900 through 7B-1907; AOC-J-440 (Order for Secure Custody); AOC-J-441 (Order for Nonsecure Custody).
- Temporary Custody
Juveniles are never “arrested” for suspicion of committing a crime; however, a law enforcement officer, juvenile court counselor, and certain other officials may take a juvenile into “temporary custody” without a court order if grounds would exist under G.S. 15A-401(b) for arresting an adult in the same circumstance. See G.S. 7B-1900(1), (3). The same authority exists if there are reasonable grounds to believe that a juvenile is undisciplined. See G.S. 7B-1900(2).
The person taking the juvenile into custody must notify the parent or guardian that the juvenile has been detained, and advise the parent or guardian of their right to be present until a determination is made about the need for further custody. See G.S. 7B-1901(a)(1) (but note that failure to notify parent is not grounds for release). Within 12 hours (or 24 hours if a weekend or holiday is involved) after taking a juvenile into custody, the officer must release the juvenile unless a petition has been filed and an order for secure or nonsecure custody has been entered. See G.S. 7B-1901(b).
Thus, if a police officer witnesses or responds to a suspected criminal act, identifies a juvenile as a suspect, and takes that juvenile into temporary custody, there are five possible courses of action available per G.S. 7B-2100:
- Release the juvenile, with or without first “counseling” the juvenile;
- Release the juvenile to the juvenile’s parent, guardian, or custodian;
- Refer the juvenile to appropriate community resources;
- Seek a juvenile petition (without requesting that the juvenile remain in custody); or
- Seek a juvenile petition and request a secure or nonsecure custody order.
- Secure Custody
An order for “secure custody,” which authorizes placement of the juvenile in a juvenile detention facility (rather than a jail) pending adjudication, may be issued only when the court finds: (i) a reasonable factual basis to believe the juvenile committed the alleged offense; and (ii) one or more of the specific grounds listed in G.S. 7B-1903(b) exists. Those grounds, which are also listed on the secure custody form AOC-J-440, are summarized below:
- Juvenile is charged with a felony, and has demonstrated he or she is a danger to persons or property;
- Juvenile is charged with a misdemeanor in which either assault on a person or the possession, use, display, or threatened use of a firearm or deadly weapon is an element, and has demonstrated he or she is a danger to persons or property;
- Juvenile is charged with a violation of G.S. 20-138.1 or 20-138.3, and has demonstrated he or she is a danger to persons;
- Juvenile has willfully failed to appear (after being notified) on a pending delinquency charge, probation violation, or post-release supervision violation;
- Juvenile has a pending delinquency charge, and there is reasonable cause to believe the juvenile will not appear;
- Juvenile is an absconder from a juvenile detention or residential facility;
- There is reasonable cause to believe juvenile should be detained for his or her own protection due to risk of self-harm - see additional requirements and conditions, G.S. 7B-1903(b)(6);
- Juvenile is alleged to be undisciplined for running away, and is appropriate for nonsecure custody placement but refuses to go – court may order secure custody for up to 24 hours to evaluate juvenile’s needs and facilitate reunion with parents;
- Juvenile is alleged to be undisciplined and has willfully failed to appear in court after receiving proper notice – juvenile may be taken into custody for up to 24 hours for purposes of bringing to court as soon as possible.
- Nonsecure Custody
An order for “nonsecure custody” authorizes placement of the juvenile in the custody of the county department of social services, a relative, or another person or agency designated in the order. An order for nonsecure custody may be issued when the juvenile is a runaway and consents to nonsecure custody, or when one or more grounds for secure custody exist, but the court finds that placement in nonsecure custody is in the juvenile’s best interest. See G.S. 7B-1903(a); AOC-J-441 (Order for Nonsecure Custody).
Most orders for secure or nonsecure custody are entered by district court judges. However, in some districts the chief district court judge has filed an administrative order with the clerk of court that authorizes the chief juvenile court counselor (or the court counseling staff) to enter custody orders. When a custody order is entered by a juvenile court counselor under this delegated authority, the time within which the first hearing on the need for continued custody must be held is accelerated. The hearing must be conducted at next regularly scheduled session of court. See G.S. 7B-1902 and 7B-1906(a). For more information, see the related Juvenile entry on Secure Custody Hearings.
Investigation and Questioning
- Right to Counsel/Parent
Juveniles have a right to be represented by appointed counsel and to have a parent or guardian present at all in-custody interviews. See G.S. 7B-2000; 7B-2101; In re Gault, 387 U.S. 1 (1967); J.D.B. v. North Carolina, 564 U.S. 261 (2011).
- Custodial Interview/Interrogation
As with interviews of adult suspects, juvenile Miranda warnings and other restrictions only apply if the juvenile is actually “in custody.” See In re D.L.D., 203 N.C. App. 434 (2010) (juvenile’s un-Mirandized statement to an officer during a search at school was admissible because it was spontaneous and not the result of interrogation); In re J.T.S., 206 N.C. App. 596 (2010) (unpublished) (questioning of juvenile by assistant principal, with officer present, was not a custodial interrogation); see also In Re W.R., 363 N.C. 244 (2009); but see In re K.D.L., 207 N.C. App. 453 (2010) (juvenile was in custody when he was detained by a school resource officer and school officials, accused of drug possession, frisked, transported in a police car to the principal's office, and interrogated by the principal for nearly five hours with an officer present most of the time).
Statements to court counselor
Per statute, and regardless of custody status, any incriminating statements which the juvenile makes to the court counselor as part of the intake and petition process are not admissible as evidence at the adjudication hearing. However, prosecutors should remember that those statements can still be used at the disposition hearing, or any other post-disposition hearing such as a probation violation. See G.S. 7B-2408.
If the juvenile is in custody, then by statute the juvenile must be advised prior to questioning that he or she:
- Has the right to remain silent;
- That any statement made can be used against the juvenile;
- That the juvenile has the right to have a parent, guardian, or custodian present during questioning; and
- That the juvenile has the right to consult with an attorney, and that one will be appointed for the juvenile if he or she wants and attorney and does not already have one.
A juvenile younger than age 16 (formerly age 14) who is in custody cannot waive the right to have a parent, guardian, custodian or attorney present; and therefore the juvenile may not be questioned at all unless he or she: (i) waives the right to remain silent; and (ii) a parent, guardian, custodian or attorney is present. See G.S. 7B-2101(b).
A juvenile age 16 or older (formerly age 14 or older) who is in custody must also be advised of his or her right to remain silent and the right to have a parent, guardian, custodian or attorney present; however, juveniles who are 16 or older can choose to waive both rights and answer questions without a parent, guardian, custodian or attorney present. G.S. 7B-2101(b); see In re M.L.T.H., 200 N.C. App. 476 (2009) (juvenile did not knowingly, willingly, and understandingly waive his right to have a parent, guardian, or custodian present, when he was told that he could have “any person” present and chose to have a 21-year-old brother present); see also State v. Fincher, 309 N.C. 1 (1983) (Juvenile Code requirement that juveniles be told, along with a Miranda warning, that they have a right to have a parent, guardian, or custodian present also applies to 16- and 17-year-olds being charged and tried as adults).
No waiver by parent/guardian
The juvenile can waive his or her right to have a parent present, but no parent or other adult can waive that right on the juvenile’s behalf. In other words, if the juvenile requests that a parent be present, then the officer must wait to begin questioning until the parent arrives – even if the parent is reached by phone and says “sure, it’s fine, go ahead and start without me.” See G.S. 7B-2101(b); In re Butts, 157 N.C. App. 609 (2003) (juvenile's father did not, by leaving interview room after he and juvenile were apprised of their Miranda rights, waive the juvenile's right to have a parent, guardian, or custodian present during questioning).
If the juvenile invokes his or her right to counsel or “indicates in any manner” that he or she no longer wishes to answer questions, then all questioning must cease. See G.S. 7B-2101(c). Before admitting any statements resulting from a juvenile’s in-custody interrogation into evidence, the court must find that the juvenile waived his or her rights knowingly, willingly, and understandingly. G.S. 7B-2101(d). The U.S. Supreme Court has held that the juvenile’s age is a relevant factor to consider under the totality of the circumstances in determining whether a juvenile is “in custody” for purposes of Miranda (if the juvenile’s age was known to the officer or would be objectively apparent to a reasonable officer), and may also impact whether the juvenile’s waiver was knowing, willing, and understanding. See J.D.B. v. North Carolina, 564 U.S. 261 (2011).
Motion to suppress a confession
Some research suggests that juveniles are statistically more likely than adults to admit to an alleged offense when confronted by a police officer or other authority figure, and motions to suppress a confession are one of the most common arguments a prosecutor will face in juvenile court. If the defense files a suppression motion which challenges (i) whether the juvenile was in custody, (ii) whether he or she was properly advised of his or her juvenile Miranda rights (including the right to have a parent, guardian, or attorney present), and/or (iii) whether those rights were knowingly and intelligently waived before questioning, prosecutors are strongly encouraged to read "Applying the Reasonable Child Standard to Juvenile Interrogations after J.D.B. v. North Carolina," Latoya Powell, Juvenile Law Bulletin, February 2016, discussing the the J.D.B. decision and the ways that it modified the traditional Miranda analysis for juvenile cases.
For a collection of other juvenile cases analyzing what qualifies as “custody” (at school, at home, in police car, etc.) and “interrogation” (by school principal, by police, etc.), see also "Case Law: Motions to Suppress In-Custody Statements of Juveniles," North Carolina Defender Manual Chapter 11.4, October 2017.
Aside from the specific statutory limitations just described, most of the other standard principles of Fourth Amendment/custody/Miranda analysis are applicable to juvenile cases. For example, if a juvenile is questioned while in custody and not given a proper juvenile Miranda warning, then the statement may be suppressed – but as long as the statement was “voluntary,” any other evidence discovered as a result of the statement should still be admissible. See, e.g., In re L.I., 205 N.C. App. 155 (2010) (juvenile was “in custody” when she was handcuffed, placed in a patrol car, and interviewed, so the juvenile’s un-Mirandized statement that she possessed marijuana was inadmissible - but the statement was not coerced, so the drugs discovered as a result of that interview were still admissible); citing State v. Hardy, 339 N.C. 207, 224 (1994) (“Physical evidence obtained as a result of a failure to give required Miranda warnings ... need not be excluded.”).
- Recording of interrogations
G.S. 15A-211(d) requires that all custodial interrogations of “juveniles” that are conducted at a place of detention be electronically recorded in their entirety. This statute is somewhat unclear because it refers to "criminal investigations" rather than "delinquency investigations," and it does not internally define the term “juveniles.” However, when read in context with the rest of Chapter 15A, it seems more likely that the statute is intended to apply to juvenile delinquency cases, and not to the investigation of minors aged 16 or 17 who are being prosecuted as adults. See Janet Mason, "2011 Enacted Legislation: Juvenile Law," p. 5, UNC School of Government, October 2011 (noting that most other statutes in 15A do not use the term "juvenile," and refer instead to a defendant's age range, making it "possible, if not likely, that the intent was to make the recording of custodial interrogations mandatory when an investigation involves an offense committed before a juvenile reaches age 16 – that is, to delinquency cases, not criminal cases involving young people"). Assuming this is the correct reading of the statute, legislative changes effective December 1, 2019, that expand the jurisdiction for juvenile offenses up to age 18 make this discrepancy less significant. For more information, see the related Juvenile entry on Jurisdiction.