Unrecorded juvenile statement barred

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Unrecorded statements made by a juvenile to a police officer in the squad car are inadmissible.

The Wisconsin Court of Appeals held on Aug. 24 that the officer should have waited to question her until it could be recorded. And that her subsequent statement, which was recorded, is inadmissible, too.

In 2008, a Green Bay police officer received a request to locate a truant student, Dionicia M., and return her to high school.

When the officer found her, he placed her in the back of the squad car, which is locked, and took her back to school. On the way, he questioned her about a battery case in which she was a suspect, and Dionicia admitted involvement. The conversation was not recorded.

Back at school, the officer turned on a recording device, read her Miranda rights, and obtained a recorded statement.

Charged with delinquency, she moved to suppress her statements, arguing that they were taken in violation of State v. Jerrell C.J., 2005 WI 105, 283 Wis.2d 145, 699 N.W.2d 110, and Miranda v. Arizona, 384 U.S. 436 (1966). The circuit court denied the motion.

Dionicia pleaded no contest to an amended petition, and was ordered to spend thirty days in secure detention. She requested sentence credit for five days, but the circuit court denied the request.

Dionicia appealed, and the Court of Appeals reversed on both issues, in an opinion by Judge Gregory A. Peterson.

In Jerrell C.J., the Wisconsin Supreme announced a rule requiring all custodial interrogations of juveniles to be electronically recorded when “feasible” to be admissible.

The Court of Appeals thus framed the issue as two-fold: was Dionicia in custody in the squad car?; and was it feasible to record the interrogation?

Because the squad car was locked, and she could not exit, the court held that she was in custody.

The court further held that it was feasible to record her statements.

The State argued that the lack of a recording device in the squad car made it impossible, and thus unfeasible, to record the interrogation. But the court disagreed.

The court reasoned, “Although [the officer] may not have been capable of recording the initial conversation while in the squad car, nothing prevented him from waiting to question Dionicia until after the short time it took to return to school. As Dionicia points out, if the police are excused from complying with Jerrell C.J. whenever the slightest effort is required to record an interrogation, the Jerrell C.J. rule becomes meaningless.”

The court further found that the recorded statement taken at the school must be suppressed as well. It concluded that the purpose of Jerrell C.J. would not be served by allowing an officer to turn on a recorder only after a juvenile has been convinced to confess.

Because the custodial interrogation of Dionicia was not recorded in its entirety, the court held it must be suppressed in its entirety.

Turning to sentence credit, the court held that Dionicia is entitled to credit for the five days she spent in secure detention prior to disposition.

The court acknowledged that she was only in secure detention for those five days because she failed to return to her nonsecure placement. But the court concluded that she was in detention “in connection with” the battery charge, nonetheless.

Analogizing the situation to adult courts, the court noted, “This is why defense attorneys routinely ask trial courts to convert signature bonds to cash bail when their clients have been arrested on a new charge and remain in custody on the new charge. ‘They do so precisely because they want to assure sentence credit on both offenses.’ (cite omitted).”

Case analysis

This is the first Court of Appeals’ opinion to address the meaning of “feasible” in Jerrell C.J.

Effectively, it precludes any custodial interrogation of juveniles prior to transporting the juvenile to the police station or other facility, if the officer has no recording equipment in the squad car.

In its analysis, the court emphasized that the officer located Dionicia “only half a block from the school” and “only five to then minutes elapsed” between arrest and arriving at the school (emphases added). It says the officer could “easily have refrained” from questioning for that short amount of time.

However, none of that is relevant. Even if it had been an hour before the officer could arrive at a location with recording equipment, it is still just as “feasible” to wait.

Here, the officer was not investigating a crime in progress, but a completed crime. If it were a crime in progress, then “exigent circumstances” would make waiting unfeasible, whether the wait is five minutes or an hour.

But when investigating a completed crime, it should be irrelevant whether an officer must wait “only” five to ten minutes or an hour to commence interrogation. In both cases, it is equally “feasible” to wait.

What the court held

Case: In the Interest of Dionicia M., No. 2009AP3109

Issues: Can an officer interrogate a juvenile in his squad car, when there is no recording equipment available?

Holdings: No. It is feasible to wait until the juvenile can be transported to a facility with recording equipment, so the statement must be suppressed.

Attorneys: For Petitioner: John P. Zakowski, Eric R. Enli, Green Bay; For Respondent: Andrew Hinkel, Madison.