COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Coleman
Argued at Richmond, Virginia
J.D.
OPINION BY
v. Record No. 2335-02-2 JUDGE SAM W. COLEMAN III
JANUARY 28, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Deborah C. Wyatt (Richard Armstrong; Wyatt & Armstrong, on
briefs), for appellant.
Michael T. Judge, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
A jury found J.D., a juvenile, guilty of petit larceny. On appeal, J.D. challenges the trial
court’s denial of his motion to suppress incriminating statements. J.D. contends his statements,
which he made in the office of his school’s assistant principal, were admitted in violation of the
Supreme Court’s holding in Miranda v. Arizona, 384 U.S. 436 (1966), and that the statements
were compelled and involuntary in violation of his Fifth Amendment rights. Finding no error in
the trial court’s denial of the motion to suppress, we affirm J.D.’s conviction.
FACTS
In reviewing a trial court’s ruling on a motion to suppress, we view the evidence in the
light most favorable to the prevailing party, and consider the “evidence adduced at both the trial
and suppression hearing.” Greene v. Commonwealth, 17 Va. App. 606, 608, 440 S.E.2d 138,
139 (1994). See Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 543, 546 (1997).
“‘The burden is upon [the defendant] to show that th[e] ruling, when the evidence is considered
most favorably to the Commonwealth, constituted reversible error.’” McGee v. Commonwealth,
25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted).
In May of 2001, J.D. was a fourteen-year-old student at Albemarle High School, where his
father was a teacher. A series of thefts had occurred at the school during that month. School
authorities identified J.D. and three other students as suspects in a theft that had occurred during the
latter part of the month.
At about 2:30 p.m. on May 25, 2001, Steven Wright, an associate principal at the school,
summoned J.D. to his office and questioned him about the most recent theft. In addition, Lawrence
Lawill, the principal at Albemarle High School, was present during portions of Wright’s
questioning of J.D. The record does not indicate that Lawill participated in the interview. Officer
Stuart Snead, the school resource police officer, was present while Wright conducted the interview
of J.D. The officer was silent during the interview. He did not instruct Wright about questioning
J.D. He and Wright had no prior discussions about potential criminal charges against J.D.
During the interview, J.D. was not told he could not leave the office nor was he restrained in
any way. Wright told J.D. to tell what, if anything, he knew about the thefts. J.D. made oral and
written statements acknowledging his involvement in the theft of a video camera that was school
property. He then assisted Wright in the recovery of the camera.
J.D.’s father joined Wright and J.D. in Wright’s office at about 4:45 p.m., after the school
day had ended. Wright explained that he was investigating the theft of property at the school and
showed J.D.’s father the merchandise J.D. had helped to recover. J.D.’s father instructed J.D. to tell
him the truth about what had happened. J.D.’s subsequent statements were consistent with those he
made before his father came to Wright’s office.
On cross-examination Wright testified that a student can be disciplined for refusing to obey
an assistant principal at Albemarle High School. The punishment imposed in such a situation would
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depend upon the circumstances. Wright also indicated that he had no way to require or force a
student to talk. J.D. testified he believed he had no option but to report to Wright’s office and to
cooperate because “if you don’t do it you suffer different consequences from detention to
suspension.” J.D. offered no further testimony regarding the content or circumstances of his
conversation with Wright.
MIRANDA ANALYSIS
J.D. argues that the admission of his statement violated the principles announced in
Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the Supreme Court of the United States
concluded that the coercion inherent in custodial interrogation
blurs the line between voluntary and involuntary statements, and
thus heightens the risk that an individual will not be “accorded his
privilege under the Fifth Amendment . . . not to be compelled to
incriminate himself.” Accordingly, [the Court] laid down
“concrete constitutional guidelines for law enforcement agencies
and courts to follow.” Those guidelines established that the
admissibility in evidence of any statement given during custodial
interrogation of a suspect would depend on whether the police
provided the suspect with four warnings. These warnings (which
have come to be known colloquially as “Miranda rights”) are: a
suspect “has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an attorney
one will be appointed for him prior to any questioning if he so
desires.”
Dickerson v. United States, 530 U.S. 428, 435 (2000) (quoting Miranda, 384 U.S. at 439, 442,
and 479). Fundamentally, the Miranda rule “does not apply outside the context of the inherently
coercive custodial interrogations for which it was designed.” Roberts v. United States, 445 U.S.
552, 560 (1980). The Miranda guidelines are
directed toward police conduct. . . . “The duty of giving ‘Miranda
warnings’ is limited to employees of governmental agencies whose
function is to enforce the law, or to those acting for such law
enforcement agencies by direction of the agencies; . . . it does not
include private citizens not directed or controlled by a law
enforcement agency, even though their efforts might aid in law
enforcement.”
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Mier v. Commonwealth, 12 Va. App. 827, 830, 407 S.E.2d 342, 344 (1991) (emphasis added)
(citation omitted) (concluding that a private security officer’s failure to give Miranda warnings
before questioning a shoplifter did not render the suspect’s statement inadmissible). But see
Estelle v. Smith, 451 U.S. 454, 463-65 (1981) (to be admissible against defendant at the penalty
phase of capital murder trial, defendant’s statements to court-appointed psychiatrist must have
been preceded by Miranda warnings); Mathis v. United States, 391 U.S. 1, 3-5 (1968) (Internal
Revenue Service investigator was required to advise defendant, then in prison for other offenses,
of his Miranda rights before questioning him about instances of tax fraud).
Steven Wright, in questioning J.D., was not acting as a police officer or as a
governmental agent with law enforcement authority. Numerous appellate courts from other
states have concluded that a school principal or other school official who questions a student
about a possible violation of law or school regulation does not, absent other circumstances, act as
a law enforcement officer or agent of the state with law enforcement authority. See, e.g., In re
Navajo County Juvenile Action No. JV91000058, 901 P.2d 1247, 1249 (Ariz. Ct. App. 1995); In
re Corey L., 250 Cal. Rptr. 359, 361 (Cal. Ct. App. 1988); S.A. v. State, 654 N.E.2d 791, 797
(Ind. Ct. App. 1995); Commonwealth v. Snyder, 597 N.E.2d 1363, 1369 (Mass. 1992); State v.
Tinkham, 719 A.2d 580, 583-84 (N.H. 1998); State v. Biancamano, 666 A.2d 199, 203 (N.J.
Super. Ct. App. Div 1995); In re Harold S., 731 A.2d 265, 268 (R.I. 1999); In re V.P., 55 S.W.3d
25, 33 (Tex. App. 2001).
J.D. cites several out-of-state cases for the proposition that a school official is required to
give a student Miranda warnings prior to questioning if any resulting statement is to be
admissible in a criminal proceeding. See In re: Jorge D., 43 P.3d 605 (Ariz. Ct. App. 2002);
State v. John Doe, 948 P.2d 166 (Idaho Ct. App. 1997); State v. Killitz, 651 P.2d 1382 (Or. Ct.
App. 1982); State v. D.R., 930 P.2d 350 (Wash. Ct. App. 1997). In each of these cases, however,
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it was a police or security officer who interviewed the student, not a principal or other school
official.1
We agree with the weight of authority and conclude that Wright was not a law
enforcement officer, nor was he acting as an agent of a law enforcement governmental agency,
when he interviewed J.D. Wright did not act at the direction of the police. In the course of his
duties as assistant principal, Wright initiated and conducted the investigation regarding the recent
thefts at the school. Although Wright had Snead present at the interview, Snead did not
participate. Snead offered Wright no advice about how to conduct the questioning or what to do
with the information Wright might obtain.
As the Supreme Court of New Hampshire has observed,
[a]lthough school principals are “responsible for
administration and discipline within the school,” and “must
regularly conduct inquiries concerning both violations of school
rules and violations of law,” they are not law enforcement agents.
They are “neither trained nor equipped to conduct police
investigations,” and, unlike law enforcement agents, enforcing the
law is not their primary mission. “Law enforcement officers are
responsible for the investigation of criminal matters and
maintenance of general public order,” while school officials, in
comparison, “are charged with fostering a safe and healthy
educational environment that facilitates learning and promotes
responsible citizenship.”
Tinkham, 719 A.2d at 583 (citations omitted).
1
J.D. contends the United States Supreme Court’s holding in New Jersey v. T.L.O., 469
U.S. 325 (1985), dictates a finding that Wright acted as an agent of the government in
interrogating J.D. In T.L.O., the Court held that the Fourth Amendment proscription against
unreasonable searches and seizures applied to limit searches at schools conducted by public
school officials. See id. at 333. This holding in T.L.O. does not, however, compel a conclusion
that Wright was acting as an agent of the state for purposes of the Fifth Amendment and
Miranda. Indeed, as the Supreme Court noted in T.L.O., it considered “only searches carried out
by school authorities acting alone and on their own authority.” Id. at 342 n.7 (emphasis added).
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Additionally, the Miranda holding applies only when the suspect is in custody. See
Bosworth v. Commonwealth, 7 Va. App. 567, 572, 375 S.E.2d 756, 759 (1989). “Whether a
suspect is ‘in custody’ under Miranda is determined by the circumstances of each case, and ‘the
ultimate inquiry is simply whether there is a “formal arrest or restraint on freedom of movement”
of the degree associated with formal arrest.’” Ford v. Commonwealth, 28 Va. App. 249, 256,
503 S.E.2d 803, 806 (1998) (citation omitted).
J.D. was not “in custody” for Miranda purposes at the time Wright interviewed him. J.D.
was not restrained during the meeting, which took place in Wright’s office. Wright did not
indicate that J.D. was under arrest or was subject to arrest in the future. While the security
officer was present in the room, he made no show of authority suggesting that J.D. was under
arrest or not free to leave. Snead’s mere presence during Wright’s questioning did not convert
the questioning into a custodial interrogation by a law enforcement officer.
In In re Drolshagen, 310 S.E.2d 927 (S.C. 1984), a student was asked to report to the
office of his school principal, where school officials questioned the student. Police officers were
present in the school office, but did not participate in the interview. The South Carolina
Supreme Court found the holding in Miranda inapplicable, stating that “[m]erely because the
questioning took place in the principal’s office, in the presence of police officers, ‘did not render
it a “custodial interrogation.”’” Id. at 927 (citation omitted).
Because J.D. was not “in custody” when Wright questioned him and because Wright was
not a law enforcement officer or state officer acting in that capacity, Miranda has no application
here. Accordingly, the trial court did not err in finding that Miranda did not require the
exclusion of J.D.’s statements.
J.D. argues, in the alternative, that even if the Miranda holding does not govern the
admissibility of his statement, we should adopt a state exclusionary rule in order to encourage
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cooperation between school officials and students in enforcing school policy. J.D. asserts that to
permit the use of such statements in criminal proceedings will have a “chilling effect” upon the
spirit of cooperation and free exchange of information between students and school authorities,
an undesirable result from the perspective of both the criminal justice system and society in
general. J.D. concedes that such statements could be used for school disciplinary purposes but
not in subsequent criminal prosecutions. He argues that to do otherwise will result in a policy
where students will be advised not to cooperate with school investigations, which J.D. says is an
undesirable result.
We decline J.D.’s invitation to extend the exclusionary rule in order to encourage
cooperation between students and school officials investigating criminal conduct. Such policy
arguments are more appropriately addressed to the legislature.
VOLUNTARINESS OF STATEMENT
J.D. also challenges the voluntariness of his statements to Wright. In determining whether
a statement was made voluntarily,
“[w]e must [independently] determine whether, in light of the
totality of the circumstances, including not only the details of the
interrogation, but also the characteristics of the accused, the
statement was the product of an essentially free and unconstrained
choice by its maker, or whether the maker’s will was overcome
and his capacity for self-determination critically impaired.”
Novak v. Commonwealth, 20 Va. App. 373, 386-87, 457 S.E.2d 402, 408 (1995) (citation
omitted). The voluntariness issue is a question of law requiring an independent determination on
appeal. See Wilson v. Commonwealth, 13 Va. App. 549, 551, 413 S.E.2d 655, 656 (1992). In
making that independent determination, however, “we are bound by the trial court’s subsidiary
factual findings unless those findings are plainly wrong.” Id.
Relating to the voluntariness of a suspect’s statement, the Supreme Court has held that
evidence of police activity “is a necessary predicate to the finding that a confession is not
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‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.”
Colorado v. Connelly, 479 U.S. 157, 167 (1986).
No evidence suggests J.D. was compelled to confess. Wright made no threats and used
no force or intimidation to compel J.D. to make his admissions against his free will. We are not
persuaded by appellant’s contention that he was coerced into confessing by the mere possibility that
he could be punished if he did not remain in Wright’s office and answer his questions. In the
absence of evidence of governmental coercion or compulsion, we do not disturb the trial court’s
conclusion that J.D.’s statements were voluntary.
FIFTH AMENDMENT ANALYSIS
The Fifth Amendment, which was made applicable to the States by the Fourteenth
Amendment, Malloy v. Hogan, 378 U.S. 1, 6 (1964), requires that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. “The
essence of this basic constitutional principle is ‘the requirement that the State which proposes to
convict . . . an individual produce the evidence against him by the independent labor of its
officers, not by the simple, cruel expedient of forcing it from his own lips.’“ Estelle, 451 U.S. at
462 (citation omitted). Not only does the Fifth Amendment establish a person’s right not to
testify when one is a defendant in a criminal trial but also “privileges him not to answer official
questions put to him in any other proceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal proceedings.” Lefkowitz v. Turley, 414 U.S.
70, 77 (1973). J.D. contends his privilege against self-incrimination was violated because he was
ordered to Wright’s office and then compelled to confess or be punished.
J.D. relies primarily upon the United States Supreme Court’s decision in Garrity v. New
Jersey, 385 U.S. 493 (1967), in which New Jersey police officers were questioned during an
official investigation of allegations of fraudulent conduct. Before the questioning, the officers
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were advised of their rights under Miranda not to answer questions, but were informed that any
refusal to answer would result in their removal from office. See id. at 494. Inculpatory
statements from some of the officers were later admitted in criminal prosecutions against them.
See id. at 495. The Court concluded that the Fifth Amendment privilege against coerced
statements “prohibits use in subsequent criminal proceedings of statements obtained under threat
of removal from office, and that it extends to all, whether they are policemen or other members
of our body politic.” Id. at 500. As in Garrity, subsequent Supreme Court opinions have held
Fifth Amendment violations occurred where the suspect’s statements were coerced by the threat
of an economic sanction. See, e.g., Gardner v. Broderick, 392 U.S. 273, 279 (1986) (invalidating
state law which required the discharge of any police officer who refused, on Fifth Amendment
grounds, to give grand jury testimony concerning police corruption); Uniformed Sanitation Men
Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 283-84 (1968) (finding it unlawful to
require sanitation employees to choose between their jobs and their self-incrimination privilege
in an official investigation).
J.D. argues that he felt compelled to answer Wright’s questions because his silence would
have led to some type of administrative punishment or sanction, such as suspension or expulsion.
Thus, he argues, he was compelled to incriminate himself.
The facts in this case are unlike the situation in Garrity and its progeny wherein the
individuals were directly threatened with substantial economic sanctions and removal from
office for refusing to answer questioning from law enforcement officers or governmental
officials. The facts here are more analogous to those in Husske v. Commonwealth, 252 Va. 203,
476 S.E.2d 920 (1996). In Husske, as a condition of his suspended sentence, the defendant was
ordered to continue participating in a mental health program. Id. at 206-07, 476 S.E.2d at 922.
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During a session with a mental health examiner in the county program, the defendant made
statements incriminating himself in a rape. Id. at 207, 476 S.E.2d at 923.
The Supreme Court of Virginia rejected Husske’s argument that use of the statements at
his subsequent rape trial violated his Fifth Amendment rights, noting the absence of evidence of
coercion on the part of the mental health examiner. Id. at 217, 476 S.E.2d at 929. The Court
stated that “the defendant’s obligation to participate in the mental health treatment program did
not in itself convert his ‘otherwise voluntary statements into compelled ones.’ . . . [N]o one
required [the defendant] ‘to choose between making incriminating statements and jeopardizing
his conditional liberty by remaining silent.’” Id. at 217, 476 S.E.2d at 928 (citations omitted).
As in Husske, the record in this case contains no evidence of coercion on the part of
school authorities. Here, the record demonstrates that Wright merely told appellant to tell him
what he knew about the thefts. Wright did not threaten J.D. with disciplinary action if he
remained silent or refused to cooperate. J.D.’s subjective concern that he might have received
some disciplinary action is not sufficient to prove that state action coerced or compelled him to
answer questions against his will. While J.D.’s decision may have been difficult, this Court has
recognized that
“[t]he Fifth Amendment does not insulate a defendant from all
‘difficult choices’ that are presented during the course of criminal
proceedings, or even from all choices that burden the exercise or
encourage waiver of the Fifth Amendment’s right against
self-incrimination.” “[N]ot every burden on the exercise of a
constitutional right, and not every pressure or encouragement to
waive such a right, is invalid.”
Doss v. Commonwealth, 23 Va. App. 679, 687-88, 479 S.E.2d 92, 96-97 (1996) (citations
omitted).
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CONCLUSION
For the foregoing reasons, we find that the trial court did not err in denying the motion to
suppress. Accordingly, we affirm J.D.’s conviction.
Affirmed.
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