Do Reasonable Minors Feel Less Free Than Adults Do?
The Supreme Court Takes On A New Miranda Issue

By SHERRY F. COLB

Wednesday, Oct. 08, 2003

Last week, the U.S. Supreme Court agreed to hear an appeal in the case of Yarborough v. Alvarado. Michael Alvarado was convicted of second degree murder and attempted robbery. One important feature of the trial was the prosecutor's introduction of incriminating statements that Alvarado had made at an interview with police when he was only seventeen years old.

Alvarado did not receive Miranda warnings prior to the interrogation in question. The California trial court, however, rejected the defense motion to suppress his incriminating statements. It concluded that he was not in custody during the interrogation and therefore was not entitled to warnings. In drawing this conclusion regarding "custody," however, the trial court did not consider the defendant's status as a minor. Whether the judge erred in failing to consider the defendant's youth is now before the Supreme Court.

The California courts left Alvarado's conviction undisturbed, and a federal district court denied his petition for habeas corpus relief. The U.S. Court of Appeals for the Ninth Circuit, however, in an opinion by Judge Richard D. Cudahy - a judge from the U.S. Court of Appeals for the Seventh Circuit sitting by designation - reversed the denial of relief. It also ordered that the district court effectuate the defendant's release from custody, unless he is retried, within 120 days.

Custody and Miranda

The Supreme Court's 1966 decision in Miranda v. Arizona was based on the Fifth Amendment right against compelled self-incrimination. The Court held in Miranda that when police have a suspect in custody, then prior to conducting any interrogation, they must warn the suspect that she has the right to remain silent; that if she gives up that right, anything she says may be used against her in court; that she has a right to an attorney's presence during questioning; and that if she is indigent, an attorney may be appointed for her.

After hearing these warnings, a suspect may waive her rights and submit to interrogation. If she chooses to exercise her rights, though, the police must respect that choice and refrain from questioning her. If they nonetheless initiate interrogation, her answers are inadmissible to prove her guilt at trial.

In many cases, it is obvious that a suspect is in custody, such as when she has been formally placed under arrest. Under such circumstances, police read the Miranda warnings to the suspect as a matter of course, before any interrogation commences. On other occasions, it is equally obvious that a suspect is not in police custody, such as when he spontaneously shows up at the police station to make a statement and answer any questions the police might have. In such an instance, Miranda warnings are not required.

There are also ambiguous cases, close to the line, in which the precise definition that a court gives the term "custody" becomes significant. The Supreme Court has defined custody as the answer to the following question: Given the "circumstances surrounding the interrogation," "would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave?"

Reasonable People

Whenever the law refers to the "reasonable man" or the "reasonable person," an important question arises: How many of the actual person's traits does the hypothetical reasonable person possess? In other words, with how much particularity and subjectivity is it appropriate to describe the suspect's circumstances when we place our hypothetical "reasonable person" into the same boat for comparison?

In his most objective incarnation, the reasonable person need not share any physical or emotional traits with the suspect. The only circumstances that matter are those that the police directly control. Weakness or vulnerability on the suspect's part has no bearing on whether he is in custody.

At his most subjective, the reasonable person becomes a person who shares every one of the suspect's physical and mental characteristics. At this level of specificity, the question really becomes "Did the actual suspect in fact feel free to leave?" and the objective reasonable person effectively drops out of the equation.

The degree of subjectivity in "reasonable person" standards ordinarily undergoes gradual changes over time, in each area of the law in which this hypothetical individual makes an appearance. And it is rare that either all or none of the suspect's individual qualities become mandatory considerations when such standards are applied. Still, in considering Fifth Amendment questions in general, and Miranda questions in particular, the Court has tended to incline toward objectivity.

In Colorado v. Connelly, for example, a mentally ill man suffering from command hallucinations appeared at the police station and confessed to a murder. Psychologically, the suspect's statement was not voluntary (indeed, he believed he would have to kill himself if he did not confess). Still, the Court held that neither Miranda nor the Due Process Clause barred its admission in evidence. The police had not created the circumstances that rendered the man's statements involuntary and therefore, the Constitution had nothing to say about what occurred.

On the other hand, the Court has also indicated that a suspect's youth affects his ability to withstand police interrogation that, for an adult, might not qualify as coercive. In other contexts as well, the Court has embraced the idea that an individual's youth entitles him to greater procedural consideration than attaches to less vulnerable people.

If a police officer knows, moreover, that a suspect is especially vulnerable, then the officer is answerable to a correspondingly more demanding standard of showing that any waiver of Miranda rights was knowing and voluntary. The principle that seems to emerge therefore is this one: The circumstances in which the hypothetical reasonable person would feel that he is not free to leave will incorporate a suspect's particular characteristics rendering him especially vulnerable, as long as the police know about these characteristics.

Police cannot fairly be held responsible for coercion that emerges because of hidden vulnerabilities that plague a particular suspect, unbeknownst to the police. The Fifth Amendment, after all, regulates how the government treats individuals, which can appropriately include only those things that the police do in light of what the police know about the suspect.

In the case of determining whether a person is in custody, then, the appropriate question should be whether a reasonable person - in the circumstances created by the police or known to the police but particular to the individual suspect - would feel free to terminate the interrogation and leave.

Applying the Standard to Michael Alvarado

As a seventeen-year-old, Michael Alvarado possessed a vulnerability that the Supreme Court has repeatedly acknowledged as calling for heightened procedural safeguards.

Police also knew that Alvarado was a minor. Indeed, a police officer contacted the suspect's mother at work rather than getting in touch directly with the suspect himself. She (the officer) said to Alvarado's mother that she "needed" to talk to the woman's son. Once at the police station, the suspect was separated from his mother and father, both of whom had accompanied him there, and the parents were refused permission to be present during the interview.

Questioning continued for two hours, during which Alvarado was only informed that he was free to leave well into the interview, after he had already made incriminating admissions. A reasonable seventeen-year-old under these conditions would not feel that he could terminate the interview and leave.

Beyond the sheer effect of a minor's youth on his self-confidence, the fact that a person is under eighteen means that he is legally subject to the will, directions, and choices of his parents in a way that an adult (or a formally emancipated minor) is not. Since Alvarado's parents brought him to the police station to answer questions, the impression that he would have to answer those questions until they stopped coming his way would predictably be very strong. And though parental custody is not a circumstance created by the police, it - like Alvarado's age itself - was known to (and perhaps exploited by) the officer who questioned Alvarado.

The Habeas Corpus Standard: A Wrinkle In An Otherwise Clear Case

The arguments above strongly suggest that the Court of Appeals was right, on the underlying substance, to find that police had violated Alvarado's rights. Nonetheless, the Supreme Court might see fit to reverse the Court of Appeals' decision. If so, the Court's decision is likely to rest at least in part on the procedural posture of the case.

The issue here arises as an appeal from the reversal of a denial of habeas corpus. Under the most recent legislation regarding such petitions, Congress made it clear that only certain erroneous rulings - rulings contrary to, or unreasonably applying, clearly established federal law (as determined by the U.S. Supreme Court) - may be addressed in federal court after a state conviction has been fully appealed in state court and denied review in the U.S. Supreme Court.

That is exactly the posture of this case, and the question whether youth ought to play a role in determinations of custody under Miranda is one of first impression in the Supreme Court. The Court could therefore simply announce that the failure to consider youth does not violate or misapply clearly established law, and leave it at that.

One must hope that the Court goes further than that, however, and at least reaches the underlying merits question to establish for the future whether or not youth must be considered in determining whether a suspect is in custody. Otherwise, police will remain in the dark about how and when they ought to be reading suspects their rights. And clarity for police who conduct investigations is of paramount importance to anyone who aspires to a faithful and fair application of the Miranda precedents.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark

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