In re Jose A., 2018 IL App (2d) 180170 (October). Episode 557 (Duration 22:10)
The new juvenile Miranda requirement is discussed here.
How It Begin
A teacher at Lake Zurich High School suspected that a student was under the influence of “something.” A quick investigation involving the teacher, the dean and the police revealed the kid had taken Xanax.
The student informed the deans that respondent provided the substance to her in the school library.
During the investigation, other drugs were seized from other students, some of whom stated that they had obtained the substances from respondent.
Accused Minor Interrogated At The School
When the investigation began, respondent was off the high school’s premises to attend classes at the College of Lake County.
Two Deans waited outside the main entrance of the high school for respondent to return. When respondent’s bus arrived, the deans “retrieved” respondent and brought him to an office, where they and the Assistant Principal began questioning him. Respondent was told that he was under investigation for possessing or delivering Xanax.
Respondent initially denied the allegations, and a search of respondent’s backpack yielded only an empty tin for mints. After the search of respondent’s backpack, they continued questioning respondent. Respondent eventually admitted that he had possessed pills and given some to a student.
Respondent was not allowed to return to class that day and was suspended for two weeks. At the time of these events, respondent was six days shy of his seventeenth birthday.
Police Then Get Involved
After respondent’s statement, school personnel waited for the officer so that he could conduct a pat-down search of respondent’s person.
An officer patted him down but they found nothing. Then they secured the video in the library which showed defendant passing something to the other student. Without viewing the video, but having been told that there was a video, respondent corroborated the events depicted in the video.
The accused minor was then told that he would have to come to the police station for booking.
A Visit At the Police Station
About a week later the accused minor was asked to come down to the Lake Zurich Police Department to answer some questions and be fingerprinted.
Once the translating officer arrived, the Lake Zurich officer escorted respondent, respondent’s mother, and the translating officer to an interview room adjacent to the lobby. It was an unlocked door. It is accessible to the public. It is not in the secured area by any means. The door was unlocked. There is fingerprint equipment out for other purposes in the police department, and there is a table with four chairs.
Officer Frey added that the room is typically used when someone comes to the police station to make a report or for “private conversation” between a police officer and a member of the public. He also uses the room to interview suspects before taking them into custody.
The officer was dressed in plain clothes, the same way he dresses while on duty at the high school. In addition, he was armed with his duty pistol and carrying handcuffs.
The Interrogation At The Police Station
Not Recorded
In the interview room, the officer read respondent the juvenile Miranda form and then questioned him for 15 minutes regarding the incident at the school.
The officer testified that he was aware of a new statutory recording requirement, effective in 2017 (see 705 ILCS 405/5- 401.5(b)), but that he did not record the interview, because he did not consider respondent to be in custody even though he was clearly there to be charged.
Officer Frey admitted nevertheless that he was seeking incriminating information from respondent.
After the interview concluded, Officer Frey took respondent to the station’s secure area to be booked and fingerprinted. Respondent was permitted to leave the station with his mother after further juvenile court procedures were explained to him. Officer Frey estimated that respondent was at the station for a total of 50 to 55 minutes.
Issue
On appeal, the State argues that, for various reasons, the trial court improperly granted respondent’s motion to suppress the statements he made at both the high school and the police station.
The New “Juvenile Confession” Statute – Miranda Requirement
Subsection (a-5) of section 5-401.5 was added to the Act by an amendment effective January 1, 2017. Pub. Act 99-882, § 10 (eff. Jan. 1, 2017) (amending 705 ILCS 405/5-401.5).
Section 5-401.5(a-5) of the Act provides as follows:
“An oral, written, or sign language statement of a minor, who at the time of the commission of the offense was under 18 years of age, is presumed to be inadmissible when the statement is obtained from the minor while the minor is subject to custodial interrogation by a law enforcement officer, State’s Attorney, juvenile officer, or other public official or employee prior to the officer, State’s Attorney, public official, or employee:
(1) continuously reads to the minor, in its entirety and without stopping for purposes of a response from the minor or verifying comprehension, the following statement: ‘You have the right to remain silent. That means you do not have to say anything. Anything you do say can be used against you in court. You have the right to get help from a lawyer. If you cannot pay for a lawyer, the court will get you one for free. You can ask for a lawyer at any time. You have the right to stop this interview at any time.’; and
(2) after reading the statement required by paragraph (1) of this subsection (a-5), the public official or employee shall ask the minor the following questions and wait for the minor’s response to each question:
(A) ‘Do you want to have a lawyer?’
(B) ‘Do you want to talk to me?’ ”
Is The School Statement In Or Out?
In this case, if the school personnel who questioned respondent at the high school were “other public officials or employees” and respondent was subject to a “custodial interrogation,” respondent’s statement is presumed to be inadmissible unless he was read the statement and the questions set forth in subsections (a-5)(1) and (a-5)(2).
Given the plain and ordinary meanings of the terms “public official” and “public employee,” it looks like the term means the following:
Quite simply, as used in section 5-401.5(a-5) of the Act, an “other public official or employee” is an individual, other than those specifically listed, who is elected or appointed to hold a government office or who is employed by a government agency.
But we are not done. Our supreme court has stated that, where a literal enforcement of a statute would result in great injustice or absurd consequences, courts are bound to presume that such consequences were not intended and to adopt a construction which, it is reasonable to assume, was contemplated by the legislature. See Penkava v. Kasbohm, 117 Ill. 2d 149, 154 (1987) (quoting People ex rel. Community High School District No. 231 v. Hupe, 2 Ill. 2d 434, 448 (1954)).
According to the State, requiring every public official and employee to comply with section 5-401.5(a-5) prior to taking a statement from a minor “would result in absurdity and injustice.” We agree.
School District Not The Police
Take the school setting involved in this case. School districts employ hundreds of individuals in a wide variety of positions, including superintendent, principal, dean, teacher, librarian, administrative assistant, classroom aide, nurse, janitor, bus driver, lunchroom personnel, crossing guard, and recess monitor.
Under a literal interpretation of the phrase, each of these individuals would be required to comply with the procedural safeguards set forth in section 5-401.5(a-5). Consider, for example, a bus driver transporting middle-school children home at the end of the school day would be required to comply with the statute. So would a janitor who questions a student after observing the student falsely pull a fire alarm or a lunchroom employee who questions a student after observing the student steal food from the cafeteria.
Such an interpretation of the statute would create a seismic shift in public policy by placing on individuals outside the realm of law enforcement the responsibility of learning and employing procedural safeguards heretofore required only of law enforcement officers.
We find it implausible that the legislature intended the phrase “other public official or employee” as used in section 5-401.5(a-5) to have such a broad scope in the absence of an express definition of the phrase.
But Can’t Just Ignore The Terms
The doctrine of ejusdem generis provides that when a statutory clause specifically describes several classes of persons or things and then includes “other persons or things,” the “other” is interpreted as meaning “other such like.” See Davis, 199 Ill. 2d at 138 (quoting Farley v. Marion Power Shovel Co., 60 Ill. 2d 432, 436 (1975)).
We agree that the use of this doctrine brings clarity to the language at issue.
In listing who is required to provide a Miranda warning to juveniles subject to custodial interrogation, the legislature specifically named three classes of individuals—“law enforcement officer,” “State’s Attorney,” and “juvenile officer”—followed by an additional class labeled as “other public official or employee.” 705 ILCS 405/5-401.5(a-5). Under the doctrine of ejusdem generis, the phrase “other public official or employee” would refer to individuals “such like” those specifically enumerated in the statute.
Thus, applying the doctrine of ejusdem generis in this case, we hold that the phrase “other public official or employee” as used in section 5- 401.5(a-5) is intended to refer to an elected or appointed government official or an employee who works for a government agency and who has as his or her primary duties the protection of the public interest and the enforcement of the law.
While deans and assistant principals are undoubtedly responsible for administration and discipline, they do not have as their primary mission the same duties as the individuals specifically listed in section 5-401.5(a-5). See People v. Dilworth, 169 Ill. 2d 195, 221-22 (1996) (Nickels, J., dissenting) (recognizing that school districts and law enforcement authorities have different missions); Pankhurst, 365 Ill. App. 3d at 255 (emphasizing that, although school officials are charged with maintaining order and discipline in their schools, the fact that these duties occasionally entail the investigation of criminal conduct does not alone make the school officials agents of the police).
Holding 1 – Statement At The School
Thus, applying this definition, we hold that the school personnel in this case were not “other public official[s] or employee[s]” and therefore not required to precede their questioning of respondent with the statement and questions set forth in section 5-401(a-5). In short, we find that, although the phrase “other public official or employee” as used in section 5-401.5(a-5) is not ambiguous on its face, a literal reading of the phrase renders the absurd result of applying the statute to every individual who is elected or appointed to hold a government office or who is employed by a government agency. Employing the doctrine of ejusdem generis, however, we hold that the phrase “other public official or employee” as used in section 5-401.5(a-5) was intended to apply to an elected or appointed government official or an employee who works for a government agency and who has as his or her primary duties the protection of the public interest and the enforcement of the law.
Because the school personnel in this case did not have as their primary duties the protection of the public interest and the enforcement of the law, they were not “other public official[s] or employee[s]” for the purposes of section 5-401.5(a-5) and they were not required to comply with the procedural safeguards set forth in the statute.
Accordingly, we reverse that portion of the trial court’s judgment suppressing the statement respondent made to the school personnel at the high school.
The New “Juvenile Confession” Statute – Recording Requirement
The recording requirement set forth in section 5-401.5(b) of the Act (705 ILCS 405/5- 401.5(b)) applies only to a custodial interrogation conducted at a police station or “other place of detention.”
Specifically, the statute provides:
“(b) An oral, written, or sign language statement of a minor who, at the time of the commission of the offense was under the age of 18 years, made as a result of a custodial interrogation conducted at a police station or other place of detention on or after the effective date of this amendatory Act of the 99th General Assembly shall be presumed to be inadmissible as evidence against the minor in any criminal proceeding or juvenile court proceeding, for any act that if committed by an adult would be a misdemeanor offense under Article 11 of the Criminal Code of 2012 or any felony offense unless:
(1) an electronic recording is made of the custodial interrogation; and
(2) the recording is substantially accurate and not intentionally altered.”
Overcoming The Presumption
Subsection (f) of section 5-401.5 allows for the presumption of inadmissibility to be overcome “by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.” 705 ILCS 405/5-401.5(f).
Is The Statement at the Police Station In Or Out?
In this case, it is undisputed that respondent was under the age of 18 years when the alleged offenses were committed and that the statement at issue was made at a police station. It is also undisputed that the petition for adjudication of wardship charged respondent with acts that, if committed by an adult, would be felony offenses.
Thus, if respondent’s statement at the police station was made as a result of a “custodial interrogation,” the statement is presumptively inadmissible against him in any criminal or juvenile court proceeding unless an electronic recording was made of the custodial interrogation. See 705 ILCS 405/5-401.5(b).
They didn’t record the interview at the police station.
Was The Kid In Custody At The Police Station?
Subsection (a) of section 5-401.5 defines “custodial interrogation” as “any interrogation (i) during which a reasonable person in the subject’s position would consider himself or herself to be in custody and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.” 705 ILCS 405/5-401.5(a).
The factors relevant to determining whether an individual is in custody include
(1) the location, time, length, mood, and mode of questioning;
(2) the number of police officers present during the interrogation;
(3) the presence or absence of family and friends of the individual;
(4) any indicia of a formal arrest procedure, such as the show of weapons or use of force, physical restraint, booking, or fingerprinting;
(5) the manner by which the individual arrived at the place of questioning; and
(6) the age, intelligence, and mental makeup of the individual.
See People v. Slater, 228 Ill. 2d 137, 150 (2008).
The record establishes that on, respondent was a 16-year-old high-school student. Following questioning at the high school, an officer informed respondent and his family that they would be in contact to arrange a date for respondent to come to the police station for booking.
In accordance with a request one week later, respondent and his mother reported to the police station. At that time, respondent had just turned 17. An officer then escorted respondent, his mother, and the translating officer to an interview room adjacent to the lobby of the police station. The officer then read respondent the juvenile Miranda form and questioned him for 15 minutes regarding the incident at the school. Although that the interview room was unlocked and accessible to the public, this particular room is used to interview suspects before taking them into custody.
Two officers were present during the questioning and there was fingerprinting equipment in the room. Moreover, although the was dressed in plain clothes, he was armed with his duty pistol and carrying handcuffs. At the conclusion of the interview, they took respondent to a secure area for booking and fingerprinting. Subsequently they charged him with two drug related felony charges.
Under the totality of these circumstances, a reasonable person would have considered himself to be in custody and not free to leave. We find ample evidence to support the trial court’s finding that respondent was subject to a custodial interrogation at the police station.
Holding 2 – Statement At Police Station
Given the foregoing, Since this finding is not against the manifest weight of the evidence and since the custodial interrogation was not electronically recorded as required by section 5-401.5(b) of the Act, the statement respondent made at the police station is presumptively inadmissible.
For the reasons set forth above, we affirm that portion of the judgment of the circuit court of Lake County granting respondent’s motion to suppress the statement respondent made at the police station.
Samuel Partida, Jr. is now an Assistant State's Attorney in Kane County. Finding the time for the cases is never easy, and he still believes that there is no substitute for steady, persistent attention to the cases.