In the Interest of: J.L.H. Juvenile Officer v. J.L.H.

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

IN THE INTEREST OF: J.L.H. )
)
JUVENILE OFFICER, ) WD77850
)
Respondent, ) OPINION FILED:
v. )
) March 8, 2016
J.L.H., )
)
Appellant. )

Appeal from the Circuit Court of Jackson County, Missouri
Honorable John M. Torrence, Judge

Before En Banc Division:
Alok Ahuja, Chief Judge, Victor C. Howard, Thomas H. Newton,
Lisa White Hardwick, James Edward Welsh, Mark D. Pfeiffer,
Karen King Mitchell, Cynthia L. Martin, Gary D. Witt,
Anthony Rex Gabbert, Judges, and Joseph M. Ellis, Senior Judge 1

J.L.H. appeals a juvenile court adjudication on a motion to modify a prior

order of disposition, finding that he would have been found guilty if tried as an adult

of violating section 571.080 (transfer of a concealable firearm without a permit).2

J.L.H. contends that the juvenile court committed reversible error when it denied a

1
Judge Ellis retired as an active member of the court on February 29, 2016, after oral
argument in this case. He has been assigned by the Chief Justice to participate in this decision as
Senior Judge.
2
Statutory references are to RSMo (2000), as updated by cumulative supplement, unless
otherwise indicated.
motion to suppress his statement to the police in response to custodial interrogation

conducted in violation of section 211.059. We agree and reverse.

This appeal requires us to resolve an issue of first impression. We must decide

whether the narrow public-safety exception recognized in New York v. Quarles, 467

U.S. 649 (1984), to the obligation to give Miranda 3 warnings should be read by

implication into section 211.059, a Missouri statute that expressly addresses a

juvenile's rights during custodial interrogations. 4

Factual and Procedural Background

Based on a tip about an individual with a gun relayed by a parking attendant

and security dispatcher at the Country Club Plaza in Kansas City, Missouri,

uniformed, off-duty police officers who were working as Plaza security began

following J.L.H. in late April 2014. He stood out from the group of young people he

was with because he was wearing a yellow hoodie, which had been an identifying

characteristic of the tip, and he began walking away from the group after he was

spotted. When ordered to stop, J.L.H. began to run. He was apprehended after a

chase that ended as he stopped and lay down at the bottom of a hill along Brush

Creek in response to a command to show his hands. He was handcuffed, frisked, and

lifted onto a retaining wall, and held by one of the officers. After about five to eight

minutes, he was walked up the hill from the creek surrounded by several officers and

was asked where he threw the gun. Before asking the question, the officers did not

3
Miranda v. Ariz., 384 U.S. 436 (1966).
4
In this regard, we emphasize that our decision is wholly based on the need to discern
legislative intent in the absence of statutory text incorporating constitutional jurisprudence or the
public-safety exception. To the extent that the dissent focuses on constitutional precepts as well as
principles derived from search-and-seizure case law, we suggest that analysis should not be followed.

2
provide the warnings to J.L.H., who was known to one of them, as required under

Miranda 5 and section 211.059.1, including his right to remain silent and the

consequences of making an incriminating statement. 6

Searching for the weapon, other officers who had been canvassing the area ,

found a handgun in a bush where J.L.H. said he had thrown it. Officer William

Thompson who actually found the gun, a semi-automatic, .40 caliber Glock pistol

with six live rounds, testified during the adjuducation hearing that he knew to look

for it in a bush along Brush Creek because he was “doing an area canvass, just

looking everywhere.” 7

The juvenile officer filed a motion to modify, alleging that J.L.H. “violated

Section 571.080 RSMo by knowingly possessing, in Jackson County, Missouri, a

concealable handgun, a Smith and Wesson [sic] Glock Pistol and by possessing, in

Jackson County, Missouri, ammunition that is suitable for use only i n a handgun,

approximately 6 live rounds loaded in the Glock Pistol.” 8 J.L.H. filed a motion to

5
The constitutional right to which the Miranda warnings apply was extended to juveniles
under In re Gault, 387 U.S. 1 (1967).
6
Whether J.L.H. was in custody when he was asked where he threw the gun is not in dispute.
He had been handcuffed and was surrounded by several officers when questioned.
7
The juvenile officer argues that “[i]t was not until J.L.H. told Offi cer Hill where the gun
was located that Officer Thompson recovered the gun in the bushes” and directs the court to the
testimony of Sergeant Pegg, who was Officer Thompson’s partner that evening. Sergeant Pegg stated
that they had found the gun by backtracking the foot pursuit, not because they found it where J.L.H.
said he had thrown it. In this regard, he testified:

I knew that a gun had been found. My partner had found a gun in a bush along the
line. We, basically, what we do in any foot pursuit is we always backtrack and kind
of walk back the route that we ran to see if anybody – you know, if they dropped
anything. And he found a gun in a bush right by – right after – when you go down
the hill, right as you go down the hill and you start to head we st towards the water, it
was right there in the first bush, so –
8
Smith and Wesson and Glock are separate firearms manufacturers. The record is not
entirely clear as to which manufacturer produced the weapon in this case.

3
suppress the statement to the police about the handgun’s location and orally amended

the motion to specifically allege a violation of section 211.059. The police officers

involved in the chase and search for the handgun testified to the facts set forth above

during the suppression hearing. The juvenile court denied J.L.H.’s motion to

suppress the statement about the handgun’s location, finding that the “tip was not

anonymous or unreliable, the stop was justified and the question asked of the juvenile

does fall within the public safety exception.” J.L.H.’s statement to the police was

admitted over objection during the adjudication hearing. Following the adjuducation

hearing, the juvenile court sustained the juvenile officer’s allegation, committed

J.L.H. to the custody of the director of Family Court Services , and suspended the

commitment, placing J.L.H. in his grandmother’s custody where he had been sin ce a

2009 disposition. Other than the statement that J.L.H. made about the handgun, no

additional evidence had been introduced to prove that the recovered handgun had

been in his possession. J.L.H. was fourteen years old when the custodial

interrogation took place.

Legal Analysis

Custodial Interrogation of a Juvenile

In the first point, J.L.H. argues that the juvenile court committed reversible

error when it overruled the motion to suppress his statement to officers and later

admitted that statement over objection because his statement was obtained during a

custodial interrogation that violated section 211.059. We review a trial court’s denial

of a motion to suppress by considering both the suppression hearing and tr ial

evidence “to determine whether sufficient evidence exists in the record to support the

4
trial court’s ruling.” State v. Grayson, 336 S.W.3d 138, 142 (Mo. banc 2011). We

defer to the trial court’s credibility determinations and factual findings, asking “only

whether the decision is supported by substantial evidence.” Id. (internal quotation

marks omitted). We reverse for clear error. Id. We review questions of law de novo.

State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000).

Section 211.059 provides:

Rights of children when taken into custody (Miranda warnings). —

1. When a child is taken into custody by a juvenile officer or law
enforcement official, with or without a warrant for an offense in
violation of the juvenile code or the general law whic h would place the
child under the jurisdiction of the juvenile court . . . , the child shall be
advised prior to questioning:

(1) That he has the right to remain silent; and
(2) That any statement he does make to anyone can be and may
be used against him; and
(3) That he has the right to have a parent, guardian or custodian
present during questioning; and
(4) That he has a right to consult with an attorney and that one
will be appointed and paid for him if he cannot afford one.

2. If the child indicates in any manner and at any stage of questioning
pursuant to this section that he does not wish to be questioned further,
the officer shall cease questioning.

The State has not contested that J.L.H. was not given the warnings specified in

section 211.059.1 before making statements concerning the handgun’s location. The

State argues, however, that the statutory warnings were not required, because the

circumstances fell within the scope of the “public safety” exception recognized in

New York v. Quarles, 467 U.S. 649 (1984). We reject the State’s contention that we

can read an unstated “public safety” exception into the mandatory provisions of

5
section 211.059.1. 9

In Quarles, an adult defendant arrested on suspicion of rape was not

Mirandized before he was asked to reveal the location of a handgun after he was

handcuffed and in custody. 10 467 U.S. at 652. The Court recognized that the “Fifth

Amendment guarantees that ‘[n]o person . . . shall be compelled in any criminal case

to be a witness against himself.’” Id. at 654. The Court recognized that Miranda

“extended the Fifth Amendment privilege against compulsory self -incrimination to

individuals subjected to custodial interrogation by the police.” Id. The Court also

recognized that “[r]equiring Miranda warnings before custodial interrogation

provides ‘practical reinforcement’ for the Fifth Amendment right.” Id. (quoting

Michigan v. Tucker, 417 U.S. 433, 444 (1974)). In short, “the prophylactic Miranda

warnings therefore are ‘not themselves rights protected by the Constitution.’” Id.

(quoting Tucker, 417 U.S. at 444). Based on this analysis, the Court ruled that “the

need for answers to questions in a situation posing a threat to the public safety

outweighs the need for the prophylactic rule protecting the Fifth Amendment’s

9
The State’s argument assumes that the U.S. Supreme Court would hold that the Quarles's
public-safety exception applies wholesale to the interrogation of juveniles. The State’s and dissent’s
confident assumption that Quarles would be applied to juveniles without qualification may be o pen
to question. Slip op. at 5. The U.S. Supreme Court has consistently distinguished between adults and
juveniles in addressing constitutional rights and protections, recognizing that juveniles are, simply
stated, different from adults. See, e.g., J.D.B. v. N. Carolina, 131 S. Ct. 2394, 2404 (2011)
(summarizing the concerns addressed by the U.S. Supreme Court since the mid -1900s about a
juvenile's limited capacity to exercise mature judgment, and elaborating on a “‘history [that] is
replete with laws and judicial recognition’ that children cannot be viewed simply as miniature
adults”) (citation omitted)). Similar observations about the different capacities of juveniles subject
to questioning while in custody appear even earlier in In re Gault, 387 U.S. 1, 44-55 (1967).

Because we conclude that statutory protections afforded juveniles by the Juvenile Code are to
be applied and interpreted independently of constitutional counterparts, and because we conclude that
the Quarles’s public-safety exception cannot be read by implication into section 211.059 based on
settled principles of statutory construction, we need not resolve the question whether Quarles even
applies to juvenile custodial interrogations.
10
The victim in Quarles had reported to police that her rapist had a gun and had entered a
nearby supermarket before being apprehended. 467 U.S. at 651 -52.

6
privilege against self-incrimination.” Id. at 657. As such, the Court recognized “a

‘public safety’ exception to the requirement that Miranda warnings be given before a

suspect’s answers may be admitted into evidence.” Id. at 655. The effect of the

exception is to qualify when Miranda warnings must be given.

Although Quarles recognized a public-safety exception as a matter of

constitutional law, section 211.059 must be interpreted independently of federal

constitutional decisions. It is well-established that the General Assembly has the

authority to provide greater protections than the federal constitution requires. See,

e.g., State ex rel. J.D.S. v. Edwards, 574 S.W.2d 405, 409-10 (Mo. banc 1978).

Plainly, the General Assembly did just that, and purposefully so, when it enacted

section 211.059. Section 211.059 independently addresses important rights that the

General Assembly desired to afford juveniles, notwithstanding that those rights have

parallel constitutional origins. In at least one important respect, section 211.059

gives broader rights to juveniles during custodial interrogations than the rights given

under Miranda and its progeny: under subsection 211.059.1(3), a juvenile must be

advised “[t]hat he has the right to have a parent, guardian or custodian present during

questioning.” Miranda and its progeny do not require such a warning. Indeed, in

requiring that juveniles be advised that they have a right to have an adult present

during questioning, the General Assembly rejected the approach taken by the

Missouri Supreme Court in In re A.D.R., 603 S.W.2d 575 (Mo. banc 1980). A.D.R.

abrogated In re K.W.B., 500 S.W.2d 275, 283 (Mo. App. 1973), where the court of

appeals held that constitutional principles require a juvenile in custody to “be given

an opportunity to consult with his parents, guardian, adult friend, or attorney as to

7
whether he wishes to waive [his] rights.” Obviously, section 211.059 expressly

affords juveniles those very rights, deemed lacking as a matter of constitutional law

by In re A.D.R. This demonstrates that, in enacting section 211.059, the General

Assembly recognized that the Juvenile Code permissibly operates independentl y of

constitutional protections (so long as not more restrictive than constitutional

protections).

In closely related contexts, the Missouri Supreme Court has recognized that the

Juvenile Code operates independently from federal constituti onal principles, even

when the code and the constitution address the same issues. Thus, in State v.

Arbeiter, 408 S.W.2d 26 (Mo. 1966), the Missouri Supreme Court considered whether

a juvenile’s rights had been violated when the juvenile was interrogated for an

extended period of time without being promptly turned over to juvenile authorities or

advised of his right to counsel. The supreme court did not rely on Gallegos v. State

of Colorado, 370 U.S. 49, 55 (1962), a federal constitutional-law decision, to find

reversible error, but instead relied solely on the failure to strictly and literally comply

with section 211.061, a provision that requires juveniles to be brought promptly

before the juvenile court for a detention hearing during which the juvenile and his or

her custodian or parent are to be advised of the juvenile ’s right to counsel. Arbeiter,

408 S.W.2d at 31. Our supreme court observed that, because it had found a violation

of statutory protections afforded the juvenile under the Juvenile Code, “we do not

reach the formidable constitutional objections to the use of the defendant ’s statements

in this case.” Id. (citing Gallegos, 370 U.S. 49).

8
 In In re Gault, 387 U.S. 1, 41 (1967), the U.S. Supreme Court held that “the

Due Process Clause of the Fourteenth Amendment” affords juveniles in “delinquency

proceedings which might result in commitment to an institution” the right to be

represented by counsel. When Gault was decided, however, the Missouri General

Assembly had already adopted section 211.211 11 similarly affording juveniles the

right to counsel. After Gault, when our supreme court considered a juvenile’s right to

counsel in In re D.J.M., 259 S.W.3d 533 (Mo. banc 2008), the court did not rely on

Gault to find reversible error, but instead relied solely on the trial court’s failure to

strictly and literally comply with section 211.211. Id. at 536. Our supreme court

observed that it did not need to address D.J.M.’s constitutional right to counsel,

“because D.J.M. was not provided his statutory right to counsel pursuant to section

211.211.” Id.; see also State v. Burris, 32 S.W.3d 583, 589 (Mo. App. S.D. 2000) (“The

right of a child to be advised that he or she has a right to have a parent, guardian or

custodian present during questioning is derived from § 211.059.1(3), a statutory

provision that is part of this state’s juvenile code, rather than from the Miranda

interpretation of a suspect’s constitutional rights.”).

We are required, therefore, to view and apply section 211.059 distinctly fr om

its constitutional counterpart, just as the Missouri Supreme Court did with respect to

sections 211.061 and 211.211 in Arbeiter and D.J.M. Accepting that premise leads to

the inescapable realization that the General Assembly enacted section 211.059

because it intended to define a juvenile’s rights in advance of custodial interrogations

by statute, independently of constitutional protections. Indeed, though section

11
Section 211.211 was first enacted in 1957.

9
211.059 includes required warnings similar to Miranda, it also includes the right to

have a parent, guardian, or custodian present during any custodial interrogation.

J.L.H.’s first point presents a question of statutory interpretation, not a question of

constitutional law. While the U.S. Supreme Court may have recognized a “public

safety” exception to the warnings required by Miranda, the question we address is

different: is there a public-safety exception to the warnings required by section

211.059? The answer to this latter question is plainly “no.”

Section 211.059 does not, in express terms, include a “public safety”

exception. Instead, the statute states, in mandatory terms and without qualification,

that “[w]hen a child is taken into custody by a juvenile officer or law enforcement

official . . . for an offense in violation of the juvenile code or the general law[,] . . .

the child shall be advised [of the specified rights] prior to questioning . . . .”

(Emphasis added.) Under bedrock principles of statutory construction, we cannot

incorporate unwritten conditions, exceptions, or limitations into section 211.059’s

unambiguous command. The Missouri Supreme Court has emphasized that “‘[t]his

Court may not engraft upon the statute provisions which do not appear in explicit

words or by implication from othe[r] words in the statute.” State v. Collins, 328

S.W.3d 705, 709 n.6 (Mo. banc 2011). Courts “cannot supply what the legislature

has omitted from controlling statutes”; instead, we “enforce[ ] statutes as they are

written, not as they might have been written.” Turner v. Sch. Dist. of Clayton, 318

S.W.3d 660, 668 (Mo. banc 2010). Under these fundamental principles, “[w]here no

exceptions are made in terms, none will be made by mere implication or

10
construction.” McGhee v. W.R. Grace & Co., 312 S.W.3d 447, 455 (Mo. App. S.D.

2010) (citations omitted).

In addition, the General Assembly “is presumed to have acted with a full

awareness and complete knowledge of the present state of the law, including judicial

and legislative precedent.” State ex rel. Pub. Counsel v. Pub. Serv. Comm’n, 259

S.W.3d 23, 31 (Mo. App. W.D. 2008); see also Turner, 318 S.W.3d at 668. Section

211.059 was enacted five years after Quarles was decided. We must presume,

therefore, that the General Assembly was aware of the existence of the public-safety

exception to the obligation to give Miranda warnings when it enacted section

211.059. Yet it did not include a public-safety exception in the statute.

Finally, in construing legislation, we presume that the Legislature does not

enact laws without a reason. “‘[T]he legislature will not be charged with having done

a meaningless act.’” Stiers v. Dir. of Revenue, No. SC94840, 2016 WL 143230, at *5

(Mo. banc Jan. 12, 2016) (quoting State v. Swoboda, 658 S.W.2d 24, 26 (Mo. banc

1983)). Before section 211.059 was enacted, the U.S. Supreme Court had declared in

Gault that “the [Fifth Amendment] constitutional privilege against self -incrimination

is applicable in the case of juveniles as it is with respect to adults. ” 387 U.S. at 55.

By then, Miranda had already been decided. 12 Yet, in 1989, twenty-two years after

Gault, our General Assembly enacted section 211.059. Section 211.059 requires

warnings similar to—but broader than—those required under Miranda and Gault.

Codification of a juvenile’s right to receive Miranda warnings, however, would have

been an unnecessary act, if the State is correct that section 211.059 codified the

entirety of the U.S. Supreme Court’s Miranda jurisprudence.
12
The U.S. Supreme Court decided Miranda in 1966.

11
 We accordingly conclude that law enforcement officers were required to give

J.L.H. the warnings specified in section 211.059 before engaging him in a custodial

interrogation; the statutory requirement that these warnings be given is not excused,

even if the circumstances fell within Quarles’ “public safety” exception.

Missouri courts have not previously addressed the consequence should a

statement be elicited from a juvenile in violation of section 211.059. The Missouri

Supreme Court has, however, concluded that violations of similar Juvenile Code

provisions constitute reversible error.

In State v. Arbeiter, 408 S.W.2d 26, 29 (Mo. 1966), a juvenile accused of first-

degree murder was interrogated in violation of section 211.061, which required that a

juvenile, once taken into custody, be taken “immediately and directly before the

juvenile court,” or be delivered “to the juvenile officer or person acting for him.”

Having determined that a statutory violation occurred, the Missouri Supreme Court

observed that “[t]he question remains as to the effect of noncompliance with section

211.061.” Id. The court held that “the absence of express statutory sanction against

police procedures in violation of the Juvenile Code does not require that such

violations be excused or ignored.” Id. The court examined the rationale the Arizona

Supreme Court employed to address violations of a similar “right to counsel” statute.

Id. at 29-30 (citing State v. Shaw, 378 P.2d 487 (Ariz. banc 1963)). Though lengthy,

that rationale is instructive and is set forth in full:

The philosophy which inspired creation of the juvenile court, and
statutes implementing it, is that the state recognizes that in the majority
of cases involving antisocial behavior (including criminal offenses) on
the part of the youthful offenders, there is both a responsibility and an
opportunity for the state, through special treatment in a non-criminal
proceeding, to redirect and rehabilitate these young people. This

12
operates for the benefit of the individual, and for society as a whole.
However, in many states, as in Arizona, it is also recognized that there
are certain individuals still within the chronological classification as
juveniles, for whom this special treatment is futile. The juvenile court
therefore may refuse to continue its jurisdiction in such cases, and may
remand these individuals for regular proceedings in the criminal court.
Under the law in Arizona, until the juvenile court, which has exclusive
jurisdiction of all delinquent children or children accused of crime, has
considered the matter and decided that the particular individual is not
one who will benefit from its special treatment, a child offender remains
in the juvenile jurisdiction.

While under the juvenile court jurisdiction, a child is under certain
disabilities not attaching to an adult. He is not entitled to be released on
bail; he does not have the right of trial by jury, or right of compulsory
process to compel the attendance of witnesses on his behalf guaranteed
by the Arizona Constitution in criminal prosecutions. To compensate for
some of these disabilities, the juvenile statutes provide that the juvenile
probation officer shall act as a representative in his behalf, and further
that if he is arrested by a peace officer, such officer ‘shall forthwith
notify the probation officer, and shall make such disposition of the
juvenile as the probation officer directs.’

The need for special treatment begins at the instant the juvenile is
contacted by peace officers and this was recognized by the legislature. A
few hours of the treatment sometimes accorded mature and hardened
criminals can give the impressionable mind of a youth an indelibly
warped view of society and its interest in him.

Unquestionably, the purpose of A.R.S. [section] 8—221 was to alter the
usual method of handling persons arrested on suspicion or for
investigation of criminal activities when those persons are juveniles.
Moreover, it is apparent that this alteration of methods was in tended to
protect the interests of juveniles rather than to facilitate police
investigations. Since a major feature of the usual treatment of newly
arrested persons is interrogation, it follows that one of the purposes of
A.R.S. [section] 8—221 is to protect the juvenile from the adverse
effects of this procedure.

We have carefully considered the possible means of enforcing the policy
expressed in A.R.S. [section] 8—221 and have concluded that the means
most in harmony with the purposes expressed and implicit in that
section is to preclude the admission of statements obtained by the
persuasion of police during the period when the section is being
violated.

13
Id. at 30 (quoting Shaw, 378 P.2d at 491-93).

The Missouri Supreme Court adopted the Arizona Supreme Court's rationale in

its entirety:

In our opinion, this conclusion is entirely consistent with the philosophy
of our Juvenile Code. While we recognize the interest of society in the
protection of its members against criminal activity, the Juvenile Code
recognizes that at the juvenile level, the problem is best proceeded
against on a rehabilitative basis under special procedures for the benefit
of the child. If our experience shows that the special procedures for the
benefit of juveniles are producing results adverse to the best interests of
society, then the legislative authority may resort to different procedures.
In the meantime we feel obligated to construe and apply the Juvenile
Code as the Arizona court did, ‘to protect the interests of juveniles
rather than to facilitate police investigations.’

Id. at 30-31. Our supreme court then concluded that the statement elicited from the

juvenile in violation of section 211.061 was inadmissible, requiring reversal and

remand of the case for a new trial. 13 Id. at 31.

In State v. Wade, 531 S.W.2d 726, 728-29 (Mo. banc 1976), the Missouri

Supreme Court reiterated the holding that failure to strictly and literally comply with

section 211.061 constitutes reversible error. The court stated, “The Juvenile Code

intends that no statement shall be made to police by a person [younger than]

seventeen years of age before the child is taken to juvenile authorities. To hold the

statement admissible here would permit the State to obtain and use what the Code

refuses.” Id. at 729. Acknowledging the incapacities of juveniles, the court

determined that the Juvenile Code:

recognizes the incapacities of persons [younger than] seventeen years of
age, and intends that a child shall be provided with the assistance of a

13
A new trial was ordered because the Supreme Court “[could] not conclude on the record . . .
that it would be impossible for the prosecution to make a submissible case against the appellant
without the use of his statements.” Arbeiter, 408 S.W.2d at 31.

14
 juvenile officer or other juvenile court personnel before he is subjected
to the rigors of police interrogation. We doubt the capacity of an
offender [younger than] seventeen years of age to legally effect a waiver
of any kind in the absence of such a person.

Id. at 728-29. 14

The Missouri Supreme Court used an identical rationale in In re D.J.M., 259

S.W.3d 533 (Mo. banc 2008), a case addressing the violation of a juvenile’s statutory

right to the counsel as provided in section 211.211. As with section 211.061, section

211.211 does not express a consequence for its violation. The supreme court

observed that, “[b]ecause of the importance of the right to counsel to the fairness of

the proceedings [for a juvenile], there must be strict and literal compliance with the

statutes affecting this right, and failure to strictly comply results in reversible error. ”

Id. at 535 (citing In re C.W., 211 S.W.3d 93, 97-98 (Mo. banc 2007) (holding that

trial court’s failure to strictly comply with section 211.455, requiring the submission

of an investigation and social study after juvenile petition , was reversible error),

abrogated on other grounds by In re B.H., 348 S.W.3d 770 (Mo. banc 2011)). Thus,

the supreme court held that, because “[t]he trial court did not strictly comply with

section 211.211 when it failed to appoint counsel for D.J.M. without a full record

supporting waiver of his right to counsel or representation of D.J.M. by other counsel

in the case who was not subject to a conflict of interest[,] . . . [the] noncompliance

results in reversible error.” Id. at 536. The court reversed the juvenile’s conviction.

Id.

14
As part of its argument that Fourth Amendment exclusionary rule principles should apply
here, the dissent argues that police officers should not be required to ascertain a suspect’s age before
questioning. In this regard the dissent states, “[T]here is n othing in the record indicating that
Sergeant Williams knew that J.L.H. was a juvenile.” Slip op. at 12. Yet, in State v. Wade, 531.
S.W.2d 726, 729 (Mo. banc 1976), our supreme court held that statements obtained in violation of
section 211.061 should have been excluded even though the juvenile had misrepresented his age.

15
 Here, the State has not contested that J.L.H.’s statement was elicited during a

custodial interrogation which was not preceded by the section 211.059 warnings.

Section 211.059 requires a juvenile to be notified of his right to counsel, similar to

section 211.211. Section 211.059 prohibits interrogations of a juvenile without

advising the juvenile of the right to have a parent, guardian, or custodian present. See

Wade, 531 S.W.2d at 729 (expressing doubt that a juvenile offender can “legally

effect a waiver of any kind in the absence of” the assistance of a juvenile officer).

The important protections afforded by sections 211.061 and 211.211 are qualitatively

indistinguishable from the protections provided juvenile offenders by section

211.059. The rationale that the Missouri Supreme Court so carefully examined and

explained in Arbeiter, Wade, and D.J.M. with respect to the consequence of failing to

strictly and literally comply with the Juvenile Code’s provisions is equally applicable

here. Thus, though section 211.059 does not express a consequence for its violation,

analogous Missouri Supreme Court precedent directs that the failure to strictly and

literally comply with section 211.059 rendered J.L.H.’s statement inadmissible. 15 The

15
The dissent argues that “[h]ad the legislature wished to expressly . . . exclude the usage of
statements obtained in violation of section 211.059, it could have done so,” relying on section
211.271.3. Slip op. at 8 n.5. That statute does not aid the dissent ; it establishes that statements a
child makes to a juvenile officer after the child is taken into cu stody “are not lawful or proper
evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil
or criminal, other than proceedings under this chapter. ” § 211.271.3 (emphasis added). The statute
does not “exclude” a juvenile’s statements in juvenile proceedings —it expressly authorizes their use
in such proceedings. More to the point, unlike sections 211.059, 211.061, and 211.211, section
211.271.3 does not describe procedures that must be followed in juvenile matters t o protect the
juvenile’s rights. Instead, section 211.271 addresses the effect of juvenile court proceedings on a
juvenile’s civil rights in other contexts and cases. It is in this context that the state precludes the use
of the statements a juvenile makes to a juvenile officer against the juvenile in proceedings other than
those pursued under the Juvenile Code. In so providing, the Legislature did not prescribe a “remedy”
or “consequence” for a section 211.271 violation.

We would also note that a similar argument was made and expressly rejected in Arbeiter.
After recognizing that section 211.271.3 was literally not applicable to the case, our supreme court
still held that exclusion of the statement obtained in violation of section 211.061 was appropria te.
408 S.W.2d at 29. It was in this context that the court stated, “[T]he absence of express statutory

16
juvenile court’s denial of J.L.H.’s motion to suppress his statement to authorities

during an unlawful custodial interrogation, and the juvenile court’s subsequent

admission of the statement during J.L.H.’s adjudication hearing over J.L.H.’s

objection, constitute reversible error. 16

When section 211.059 was enacted, the General Assembly was aware of the

Missouri Supreme Court’s compelling analysis in Arbeiter and Wade ascribing to the

General Assembly a particular rationale in adopting the Juvenile Code. When section

211.059 was enacted, the General Assembly was aware of the consequences our

supreme court had imposed in Arbeiter and Wade for failure to strictly and literally

comply with Juvenile Code provisions affording important protections to juveniles.

sanction against police procedures in violation of the Juvenile Code does not require that such
violations be excused or ignored.” Id.
16
The dissent, for the sake of argument, “accepts that J.L.H.’s rights were violated under
section 211.059,” slip op. at 7, but argues that those rights should be subject to the judicially created
exclusionary rule, and thus to an analysis of “whether the purposes of t he exclusionary rule would be
served by applying it to statements obtained from juveniles in violation of section 211.059.” Slip op.
at 9. This argument ignores the critical fact that we are not addressing a constitutional violation in
this case. We are addressing a statutory violation. The dissent cites no authority for applying the
exclusionary rule to determine the consequences of a statutory violation merely because the statute
affords rights that parallel or exceed constitutional rights. In fact, in McNabb v. U.S., 318 U.S. 332,
340 (1943), the case the dissent relies on to suggest that the exclusionary rule applies to Fifth
Amendment violations, slip op. at 9, the U.S. Supreme Court expressly held that because Congress
had enacted a statute addressing interrogations, it need not “reach the Constitutional issue pressed
upon us.” Instead, the U.S. Supreme Court concluded that “[q]uite apart from the Constitution, . . .
we are constrained to hold that the evidence elicited from the petitioners . . . must be excluded. For
in their treatment of the petitioners the arresting officers assumed functions which Congress has
explicitly denied them.” McNabb, 318 U.S. at 341-42. Importantly, using a rationale that is
indistinguishable from that our supreme court used in Arbeiter, Wade, and In re D.J.M., the U.S.
Supreme Court held:

Plainly, a conviction resting on evidence secured through such a flagrant disregard of
the procedure which Congress has commanded cannot be allowed to stand without
making the courts themselves accomplices in wilful disobedience of the law.
Congress has not explicitly forbidden the use of evidence so procured. But to
permit such evidence to be made the basis of a conviction in the federal courts
would stultify the policy which Congress has enacted into law.

Id. at 345 (emphasis added) (note that the U.S. Supreme Court recognized that Congress had
subsequently acted to limit, but had not eliminated, the rule in McNabb in Corley v. U.S. 556 U.S.
303, 306 (2009)).

17
When section 211.059 was enacted, the General Assembly was aware that Arbeiter

acknowledged and honored the distinct origin of statutory protections afforded

juveniles while expressly declining to address comparable constitutional protections.

Against this backdrop, the General Assembly would necessarily have appreciated that

in enacting section 211.059, the rights therein afforded juveniles would be determined

independently of parallel constitutional rights and that a failure to strictly and

literally abide by section 211.059 would constitute reversible error. Thus, we are

required to view the General Assembly’s failure to include an express public-safety

exception in section 211.059 as a purposeful omission. “[W]e must interpret and

apply [section 211.059] as written. . . . It is not our prerogative to question the

wisdom of the legislature in enacting” the statute without a public-safety exception.

In re K.C.M., 85 S.W.3d 682, 694 (Mo. App. W.D. 2002) (citations omitted),

abrogated on other grounds by In re M.D.R., 124 S.W.3d 469 (Mo. banc 2004).

Our conclusion is further reinforced by the fact that when section 211.059 was

enacted, the General Assembly knew that Arbeiter addressed the precise tension

which now underscores the State’s request to imply a public-safety exception. In

Arbeiter, the Missouri Supreme Court resolved the tension between public safety and

the special procedures that the Legislature had adopted to benefit juveniles in favor of

protecting juveniles. As noted above, the supreme court stated:

While we recognize the interest of society in the protection of its
members against criminal activity, the Juvenile Code recognizes that at
the juvenile level, the problem is best proceeded against on a
rehabilitative basis under special procedures for the benefit of the child.
If our experience shows that the special procedures for the benefit of
juveniles are producing results adverse to the best interests of society,
then the legislative authority may resort to different procedures. In the
meantime, we feel obligated to construe and apply the Juvenile Code as

18
 the Arizona court did, “to protect the interests of juveniles rather than to
facilitate police investigations.”

Arbeiter, 408 S.W.2d at 30-31 (emphasis added). We cannot disregard that, despite

knowledge that its Juvenile Code provisions would be interpreted to resolve public-

safety concerns in favor of protections afforded juveniles, the General Assembly did

not include a public-safety exception when it enacted section 211.059.

In summary, we conclude that the General Assembly knew when it enacted

section 211.059 that a statement obtained from a juvenile in violation of section

211.059 would result in reversible error if admitted into evidence over proper

objection. We necessarily conclude, therefore, that the General Assembl y’s failure to

express a public-safety exception in section 211.059 was purposeful. We will not

rewrite a plain and unambiguous statute to imply an unexpressed term. Jackson v.

Wilson, 581 S.W.2d 39, 44 (Mo. App. W.D. 1979) (holding that court should abstain

from “rewriting a statute under the guise of construing it”). 17

17
As for the other states that have adopted warnings in one form or another for juveniles
caught up in delinquency proceedings, unlike in Missouri, at least six of the thirteen the dissent has
identified saw fit to expressly incorporate a reference to the larger body o f constitutional
jurisprudence. Slip op. at 13 n.9. For example, under a subsection titled “Rights of juveniles,” New
Jersey law provides, “All rights guaranteed to criminal defendants by the Constitution of the United
States and the Constitution of this State, except the right to criminal indictment, the right to trial by
jury and the right to bail, shall be applicable to cases arising under this act.” N.J. Rev. Stat. §
2A:4A-40 (1983). New Hampshire requires the court at any arraignment to “[i]nform th e minor of
the applicable constitutional rights.” N.H.Rev. Stat. Ann. § 169 -B:13 (2011). Washington requires
that juveniles be advised of their rights when appearing in court and specifically states, “A juvenile
shall be accorded the same privilege again st self-incrimination as an adult. An extrajudicial
statement which would be constitutionally inadmissible in a criminal proceeding may not be received
in evidence at an adjudicatory hearing over objection.” Wash. Rev. Code § 13.40.140(8) (2014).
And in Kansas and Montana, reference is expressly made to a youth’s “right against self -
incrimination” in the context of statements made while in custody. Kan. Stat. Ann. § 38 -2333(a)
(2007); Mont. Code Ann. § 41-5-331(1)(a) (2009). There are any number of ways to expressly
incorporate constitutional jurisprudence. Our Legislature chose not to do so.

What other states have concluded on the issue is not binding on this Court, and it is
particularly telling that just thirteen have apparently adopted the warning s our Legislature adopted
when it enacted section 211.059. This is clearly a matter of constituent preference and legislative
deliberation rather than a wholesale adoption of more limited federal guarantees. The few state

19
 Therefore, we reject the State’s argument that its admitted violation of section

211.059 should be excused by the public-safety exception. Section 211.059 warnings

and advisements are mandatory, and statements secured from a juvenile in violation

of the statute will result in reversible error if admitted into evidence. J.L.H.’s

statement to the police during a custodial interrogation, and in violation of section

211.059, was inadmissible. The juvenile court committed reversible error by failing

to sustain J.L.H.’s motion to suppress the statement and by admitting the statement

into evidence over objection during J.L.H.’s adjudication hearing. Because J.L.H.

self-incriminatory statement was the only evidence introduced to pro ve an essential

element of the juvenile officer’s allegation, J.L.H.’s adjudication and disposition must

be reversed. See State v. Larson, 623 S.W.2d 69, 73 (Mo. App. W.D. 1981) (court

reversed juvenile’s conviction of possession of nonintoxicating beer by a minor

because sheriff who had him in custody did not give him full Miranda warnings

before asking him his age and minor’s answer was the only evidence presented to

prove an essential element of the crime).

Our conclusion recognizes the perils that the Juvenile Code is intended to

protect against—that children are particularly vulnerable to the coercive effects of

police custody. We would be tilting the delicate separation-of-powers balance by

courts that have applied the public-safety exception to juveniles either have no comparable statutory
protections or did so peremptorily, without considering how doing so fit within the juvenile justice
statutory framework or whether it comported with legislative intent as we do here. See In re Cy R,
841 N.Y.S.2d 25, 28, 43 A.D.3d 267, 2007 N.Y. Slip Op. 06335 (N.Y. App. Div. 2007) (ruling that
inquiry about location of weapons fell within Miranda’s public-safety exception, without
acknowledging or addressing statutory warnings that do n ot expressly include it), cert. denied, 128 S.
Ct. 1891 (2008).

20
reading an unexpressed public-safety exception into section 211.059. 18 That would

amount to legislating rather than adjudging, which “we are forbidden to do.” State v.

Jones, 172 S.W.3d 448, 457 (Mo. App. W.D. 2005), overruled on other grounds by

State v. Claycomb, 470 S.W.3d 358 (Mo. banc 2015). If the General Assembly wishes

to change section 211.059, it is free to do so. Arbeiter, 408 S.W.2d at 30-31. In the

meantime, law enforcement motivated by exigent public-safety concerns remain free

to act on those concerns by making urgent inquiry of a juvenile in custody. If,

however, a statement secured from a juvenile in the process violates section 211.059,

the statement will not be admissible in a subsequent criminal proceeding involving

the juvenile. Id. That resolution is wholly consistent with the Juvenile Code’s

purpose.

J.L.H.’s first point on appeal is granted. Because we reverse the adjudication,

we do not address his remaining points, whether the statement was inadmissible

because the police lacked probable cause to place him in custody or whether the State

introduced sufficient evidence to prove J.L.H.’s age.

18
We remind that whether the Quarles public-safety exception will be interpreted to apply to
juveniles remains an unresolved constitutional question , contrary to the dissent’s assertion. See
footnote 8 above.

21
 Conclusion

We reverse the juvenile court’s adjudication and disposition, finding that it

erred in overruling J.L.H.’s motion to suppress.

/s/ THOMAS H. NEWTON
Thomas H. Newton, Judge

Thomas H. Newton, Judge, writes for the majority. Alok Ahuja, Chief Judge, Lisa
White Hardwick, Cynthia L. Martin, Gary D. Witt, Judges, and Joseph M. Ellis,
Senior Judge, concur.

Alok Ahuja, Chief Judge, writes in a separate concurring opinion. Cynthia L.
Martin, Judge, concurs.

Mark D. Pfeiffer, Judge, writes for the dissent. Victor C. Howard, James E. Welsh,
Karen King Mitchell, and Anthony Rex Gabbert, Judges concur.

22
 IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

IN THE INTEREST OF: J.L.H., )
)
Appellant, )
)
v. ) WD77850
)
JUVENILE OFFICER, ) F ILED : March 8, 2016
)
Respondent. )

CONCURRING OPINION

I join Judge Newton’s opinion for the Court.

As Judge Newton’s majority opinion explains, the analysis in the dissenting opinion is

fundamentally misguided, because this case involves the interpretation and application of a state

statute, not the constitutional principles developed in Miranda v. Arizona, 384 U.S. 436 (1966),

and its progeny. And, as the majority opinion discusses, the Missouri Supreme Court has held in

multiple cases that where government officers fail to comply with the procedures specified in the

Juvenile Code for treatment of detained juveniles, statements obtained from those juveniles must

be excluded from the government’s case in chief. See, e.g., State v. Wade, 531 S.W.2d 726, 729

(Mo. banc 1976); State v. Arbeiter, 408 S.W.2d 26, 29-31 (Mo. 1966). Our decision in this case

must be guided by Missouri Supreme Court decisions interpreting and applying Missouri’s
Juvenile Code, not by decisions of the Supreme Court of the United States interpreting federal

constitutional provisions.1

I write separately merely to point out that the result would be the same, even if we

applied the remedial approach adopted in the Miranda cases, as the dissent advocates.

The remedial principle applied in the Miranda cases is reasonably straightforward:

o if police officers fail to give Miranda warnings in circumstances where those
warnings are required,

o then subsequent statements made by a detainee in response to police interrogation
are presumed to be coerced, and are inadmissible in the prosecution’s case in
chief.

The Supreme Court of the United States has stated this fundamental point time and again. Thus,

in Dickerson v. United States, 530 U.S. 428 (2000), the Court stated that Miranda’s “core ruling

[was] that unwarned statements may not be used as evidence in the prosecution’s case in chief.”

Id. at 443-44. Similarly, in Oregon v. Elstad, 470 U.S. 298 (1985), the Court explained that “[a]

Miranda violation . . . affords a bright-line, legal presumption of coercion, requiring suppression

1
The dissent argues that Wade and Arbeiter are distinguishable, because those cases were both
criminal prosecutions, not juvenile delinquency proceedings like this case. Section 211.059.1 plainly
applies to juvenile proceedings, howe ver, since its warnings must be administered whenever a
juvenile is taken into custody “for an offense in violation of the juvenile code or the general law
which would place the child under the jurisdiction of the juvenile court pursuant to [§ 211.031.1(2)
or (3)].” Arbeiter does not limit its discussion to adult criminal proceedings; to the contrary, it
proclaims that the “philosophy of our Juvenile Code” is that, “ at the juvenile level, the problem [of
the protection of society from criminal activity] is best proceeded against on a rehabilitative basis
under special procedures for the benefit of the child.” 408 S.W.2d at 30 (emphasis added). More
generally, the Missouri Supreme Court has held that the right to counsel and other statutory and
constitutional safeguards must be respected in juvenile and other parens patriae proceedings, no less
than in criminal proceedings. See, e.g., In re D.J.M., 259 S.W.3d 533, 535 (Mo. banc 2008)
(recognizing “the right to counsel as a fundamental right, necessary to e nsure fairness in criminal
proceedings as well as in juvenile delinquency proceedings ”; “Because of the importance of the right
to counsel to the fairness of the proceedings, there must be strict and literal compliance with the
statutes affecting this right, and failure to strictly comply results in reversible error. ”); In re N.D.C.,
229 S.W.3d 602, 605 (Mo. banc 2007) (holding that the constitutional right to confront adverse
witnesses applies in juvenile delinquency proceedings; “the constitutional protections applicable in
criminal proceedings are also applicable in juvenile delinquency proceedings due to the possibility of
a deprivation of liberty equivalent to criminal incarceration”); In re Link, 713 S.W.2d 487, 494 (Mo.
banc 1986) (guardianship proceeding; “‘Where . . . the state undertakes to act in parens patriae, it
has the inescapable duty to vouchsafe due process . . . [and] due process requires that the infirm
person . . . be fully advised of his rights and accorded each of them unless knowingly and
understandingly waived.’” (citation omitted)).

2
of all unwarned statements.” Id. at 306 n.1. Even Justice Thomas’ three-justice plurality opinion

in United States v. Patane, 542 U.S. 630 (2004), recognizes this basic principle: “To protect

against this danger [of violating an arrestee’s privilege against self-incrimination], the Miranda

rule creates a presumption of coercion, in the absence of specific warnings, that is generally

irrebuttable for purposes of the prosecution’s case in chief.” Id. at 639.

During oral argument, the Juvenile Officer’s counsel acknowledged that she could not

identify any case in which the Supreme Court of the United States had held that a detainee’s

statement was admissible in the government’s case in chief, despite law enforcement’s failure to

give warnings required by Miranda and its progeny.

Unlike the Juvenile Officer, the dissent seeks to deny the simple remedial rule applied in

the Miranda cases, by relying on a hodge-podge of inapposite legal authorities. For example, the

dissent cites Fourth Amendment search-and-seizure cases (Davis v. United States, 564 U.S. 229

(2011); Illinois v. Gates, 462 U.S. 213, 223 (1983)) to argue that the application of the

exclusionary rule is separate and distinct from the question whether a defendant’s rights have

been violated. Similarly, the dissent relies on Michigan v. Tucker, 417 U.S. 433 (1974). But in

Tucker, “[t]he statements actually made by respondent to the police,” after he was given

incomplete Miranda warnings, “were excluded at trial,” id. at 447-48; the only question in

Tucker was whether statements made by another witness should be excluded, because that

witness was identified by police based on the defendant’s unwarned statements. Tucker does not

question Miranda’s core holding that the defendant’s unwarned statements themselves are

generally inadmissible. As a final example, the dissent relies on Sanchez-Llamas v. Oregon, 548

U.S. 331 (2006), in which a foreign-national defendant argued that his inculpatory statements

should be excluded as evidence in a state criminal trial, because he had not been advised of his

3
right under an international treaty to have consular officials of his home country informed of his

detention. But Sanchez-Llamas emphasizes that the right of consular notification at issue in that

case was wholly different from the rights guaranteed a criminal defendant under Miranda:

The violation of the right to consular notification . . . is at best
remotely connected to the gathering of evidence. Article 36 has nothing
whatsoever to do with searches or interrogations. Indeed, Article 36
does not guarantee defendants any assistance at all. The provision
secures only a right of foreign nationals to have their consulate informed
of their arrest or detention – not to have their consulate intervene, or to
have law enforcement authorities cease their investigation pending any
such notice or intervention. In most circumstances, there is likely to be
little connection between an Article 36 violation and evidence or
statements obtained by police.
Id. at 347. Sanchez-Llamas has nothing to do with the exclusionary remedy applied where

custodial statements result from a Miranda violation.

In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court of the United States

held that police are not required to administer Miranda warnings in certain exigent

circumstances involving threats to the public’s safety. Id. at 655. Section 211.059.1 contains no

similar “public safety” exception, however, and as the majority opinion explains, we cannot – as

a matter of Missouri statutory interpretation – write a “public safety” exception into the statute,

when such an exception is not contained in the statute’s unambiguous text.

Because § 211.059.1 contains no “public safety” exception, officers were required to give

J.L.H. the warnings specified in the statute before interrogating him, even assuming that no

warnings were required under the Miranda cases. The Juvenile Officer concedes that no such

warnings were given. The majority opinion then determines the consequences of this statutory

violation by applying a remedial analysis similar to that applied in the Miranda cases: if police

officers fail to give the statutory warnings in circumstances where those warnings are required,

then subsequent statements made by a juvenile detainee in response to police interrogation are

4
presumed to be coerced, and are inadmissible in the government’s case in chief. Unlike the

dissent, I see no analytical inconsistency between the exclusionary remedy applied by the

majority in this case, and the remedy uniformly applied in the Miranda caselaw.

Alok Ahuja, Chief Judge

5
 IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT

IN THE INTEREST OF J.L.H. )
)
JUVENILE OFFICER, )
)
Respondent, )
WD77850
)
v. )
FILED: March 8, 2016
)
)
J.L.H., )
)
Appellant. )

DISSENTING OPINION
Via judicial construct, the majority opinion today engrafts the exclusionary

rule remedy upon section 211.059—which otherwise identifies no such remedy in this

Missouri juvenile Miranda statute—without heeding the caution of the United States

Supreme Court that courts must “maintain the closest possible fit between the Self -

Incrimination Clause and any judge-made rule designed to protect it.” United States

v. Patane, 542 U.S. 630, 643 (2004). In so doing, the majority opinion ignores

decades of jurisprudence on the topic of the purpose of the exclusionary rule and goes

where no court in this country has gone on the topic of applying the exclusionary rule

as a remedy to a juvenile’s right against self-incrimination—whether by
constitutional or statutory accord—when weighed against exigent circumstances

emergently impacting the public’s right to safety. Accordingly, I respectfully dissent.

I disagree with the majority opinion’s suggestion that this case presents an

issue of first impression relating to the scope of a juvenile’s right against self-

incrimination in the State of Missouri; rather, I believe this case requires us to

evaluate the issue of what remedy may or may not be available to Missouri juveniles

in circumstances such as those with which we are presented today. More specifically,

the issue presented by this case is whether an unwarned statement, made by a juvenile

in custody, in response to a limited question asked for the purpose of preserving

public safety in the face of exigent circumstances, warrants suppression under either

Miranda v. Arizona, 384 U.S. 436 (1966), or section 211.059. 1 I believe it does not.

The Origin and Nature of Miranda

In Miranda, the United States Supreme Court “extended the Fifth Amendment

privilege against compulsory self-incrimination to individuals subjected to custodial

interrogation by the police.” New York v. Quarles, 467 U.S. 649, 654 (1984). “The

Miranda Court . . . presumed that interrogation in certain custodial circumstances is

inherently coercive and held that statements made under those circumstances are

inadmissible unless the suspect is specifically informed of his Miranda rights and

freely decides to forgo those rights.” Id. (footnote omitted). Accordingly, the

Miranda decision created both a protection for the accused relating to Fifth

1
Both the majority and concurring opinions repeatedly recite the anthem that “this case
involves the interpretation and application of a state statute, not the constitutional principles
developed in Miranda v. Arizona, 384 U.S. 436 (1966).” Clearly, such a suggestion is erroneous as
juveniles in Missouri are entitled to both a statutory right under section 211.059 and a Fifth
Amendment federal constitutional right; hence, the reason my dissenting opinion addresses both of
these rights. What the majority and concurring opinions fail to recognize is that the real question on
appeal is the applicability of the judicially created remedy at issue.

2
Amendment rights (presumption of coercion) and a remedy (suppression of unwarned

statements). Oregon v. Elstad, 470 U.S. 298, 307 (1985) (“Failure to administer

Miranda warnings creates a presumption of compulsion. Consequently, unwarned

statements that are otherwise voluntary within the meaning of the Fifth Amendment

must nevertheless be excluded from evidence under Miranda.”); see also Patane, 542

U.S. at 639 (noting that the Miranda presumption is “generally irrebuttable for

purposes of the prosecution’s case in chief”).

“The prophylactic Miranda warnings[, however,] . . . are ‘not themselves

rights protected by the Constitution but [are] instead measures to [e]nsure that the

right against compulsory self-incrimination [is] protected.’” Quarles, 467 U.S. at

654 (quoting Michigan v. Tucker, 417 U.S. 433, 444 (1974)). Accordingly, “a simple

failure to administer Miranda warnings is not in itself a violation of the Fifth

Amendment.” Elstad, 470 U.S. at 307 n.1. Instead, it merely “affords a bright -line,

legal presumption of coercion, requiring suppression of all unwarned statements.” Id.

The Fifth Amendment contains its own exclusionary rule, in a sense, by

precluding the use of compelled testimony: “No person . . . shall be compelled in any

criminal case to be a witness against himself. . . .” U.S. Const. amend. V. “The

Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more

broadly than the Fifth Amendment itself.” Elstad, 470 U.S. at 306 (emphasis added).

The Impact of Quarles upon Miranda Warnings

In Quarles, a woman approached two police officers who were on road patrol,

reported that she had just been raped, described her assailant, and told the officers

that the man had just entered a nearby supermarket and was carrying a gun. 467 U.S.

3
at 649. After apprehending the suspect, one of the officers frisked the suspect and

discovered that he was wearing an empty shoulder holster; thus, after handcuffing

him, the officer asked the suspect where the gun was. Id. The suspect complied and

the gun was recovered. Id. During the criminal prosecution, the defendant sought to

have his incriminating statement to law enforcement about the gun suppressed since

he had made the statement prior to receiving Miranda warnings. Id. The Quarles

court proceeded to declare a “public safety” exception to the mandate of Miranda,

noting:

The police in this case, in the very act of apprehending a suspect, were
confronted with the immediate necessity of ascertaining the whereabouts
of a gun which they had every reason to believe the suspect had just
removed from his empty holster and discarded in the supermarket. So
long as the gun was concealed somewhere in the supermarket, with its
actual whereabouts unknown, it obviously posed more than one danger
to the public safety: an accomplice might make use of it, a customer or
employee might later come upon it.

In such a situation, if the police are required to recite the familiar
Miranda warnings before asking the whereabouts of the gun, suspects in
Quarles’ position might well be deterred from responding. Procedural
safeguards which deter a suspect from responding were deemed
acceptable in Miranda in order to protect the Fifth Amendment
privilege; when the primary social cost of those added protections is the
possibility of fewer convictions, the Miranda majority was willing to
bear that cost. Here, had Miranda warnings deterred Quarles from
responding to [the Officer’s] question about the whereabouts of the gun,
the cost would have been something more than merely t he failure to
obtain evidence useful in convicting Quarles. [The Officer] needed an
answer to his question not simply to make his case against Quarles but
to [e]nsure that further danger to the public did not result from the
concealment of the gun in a public area.

We conclude that the need for answers to questions in a situation posing
a threat to the public safety outweighs the need for the prophylactic rule
protecting the Fifth Amendment’s privilege against self -incrimination.
We decline to place police officers such as [the arresting officer] in the
untenable position of having to consider, often in a matter of seconds,
whether it best serves society for them to ask the necessary questions

4
 without the Miranda warnings and render whatever probative evi dence
they uncover inadmissible, or for them to give the warnings in order to
preserve the admissibility of evidence they might uncover but possibly
damage or destroy their ability to obtain that evidence and neutralize
the volatile situation confronting them.

Id. at 657-58 (emphasis added). 2 Subsequently, in Dickerson v. United States, the

Supreme Court noted that modifications to Miranda, such as Quarles, “are as much a

normal part of constitutional law as the original decision.” 530 U.S. 428, 441 (200 0).

And, while the specific issue addressed by the Quarles Court was the scope of the

Miranda protection (“[T]he only issue before us is whether [the officer] was justified

in failing to make available to respondent the procedural safeguards associated wi th

the privilege against compulsory self-incrimination since Miranda.”), Quarles, 467

U.S. at 654-55 (footnote omitted), as the foregoing lengthy quotation denotes, the

Supreme Court couched part of its analysis in Quarles by weighing the competing

interests of a remedy (suppression of evidence) leading to “fewer convictions” versus

the necessity to “ensure that further danger to the public did not result from the

concealment of the gun in a public area.”

Irrespective of the evaluation of J.L.H.’s federal constitutional “rights” or

“protections” versus any corresponding “remedy,” it is evident that the decision in

Quarles precludes J.L.H.’s claim that suppression is warranted under Miranda.

2
In the years since Quarles was decided, courts have broadened the exception’s application,
in the context of an in-custody adult, without regard to the immediacy of the purported public safety
threat, and overwhelmingly apply the exception when the question asked pertains to the location of a
firearm or whether the weapon is loaded. Joanna Wright, Comment, Mirandizing Terrorists? An
Empirical Analysis of the Public Safety Exception, 111 Colum. L. Rev. 1296, 1325 (2011)
(observing, based on a study of state and federal cases citing Quarles from 1984 to 2010, that the
courts admit un-Mirandized statements relating to these questions some 80 percent of the time). See
also Alan Raphael, The Current Scope of the Public Safety Except ion to Miranda Under New York v.
Quarles,” 2 N.Y. City L. Rev. 63, 70-71, 81 (1998) (concluding that a series of cases expanded the
exception and thus, “it is always reasonable for police to inquire as to the location of weapons,”
“regardless of whether there exists an objective reason to believe that the particular susp ect
possessed or used same.”).

5
Though J.L.H. was not given his Miranda warnings, despite being in custody when

asked about the gun, the officers had every reason to believe that J.L.H. had recently

discarded the weapon in a very public location with many children present; thus, the

weapon posed an exigent threat to public safety. And that concern was “paramount to

adherence to the literal language of the prophylactic rules enunciated in Miranda.”

Id. at 653. Thus, the protection afforded by Miranda was not required.

The Effect of Section 211.059

Although suppression was not warranted under Miranda, “[p]rocedures which

would yield a constitutional confession from adults may not if the suspect is a

juvenile.” State v. Jones, 699 S.W.2d 525, 527 (Mo. App. E.D. 1985) (citing Haley v.

Ohio, 332 U.S. 596 (1948)). In Missouri, section 211.059 speaks dir ectly to the

procedures required when juveniles are taken into custody.

When a child is taken into custody by a juvenile officer or law
enforcement official, with or without a warrant for an offense in
violation of the juvenile code or the general law whic h would place the
child under the jurisdiction of the juvenile court pursuant to subdivision
(2) or (3) of subsection 1 of section 211.031, the child shall be advised
prior to questioning:

(1) That he has the right to remain silent; and

(2) That any statement he does make to anyone can be and may be
used against him; and

(3) That he has a right to have a parent, guardian or custodian
present during questioning; and

(4) That he has a right to consult with an attorney and that one
will be appointed and paid for him if he cannot afford one.

§ 211.059.1. Though the statute largely reflects the same warnings required by the

Miranda decision, it is plainly broader than the Miranda decision insofar as it also

6
requires a warning that the juvenile “has a right to have a parent , guardian or

custodian present during questioning.” Id. Certainly, “states are free to provide

greater protections in their criminal justice system than the Federal constitution

requires.” State v. Whitfield, 107 S.W.3d 253, 267 (Mo. banc 2003) (internal

quotation omitted). Irrespective, the statute is independent of the Miranda decision,

State v. Burris, 32 S.W.3d 583, 589 (Mo. App. S.D. 2000); thus, it must be analyzed

independently.

Like Miranda, the mandatory warnings to Missouri juveniles in section

211.059 are absolute. Like Miranda, then, one might also reasonably assume that no

such right or protection is, however, “immutable.” Dickerson, 530 U.S. at 441. 3

Accordingly, I respectfully disagree with the majority opinion that the protection

afforded juveniles in section 211.059 is without regard to any limitation whatsoever,

even where exigent circumstances affecting the public safety and welfare are present.

This court has previously noted as much in State v. Tolliver, 561 S.W.2d 407 (Mo.

3
For example, “[t]he most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic. . . . The qu estion in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and present
danger . . . .” Schenck v. United States, 249 U.S. 47, 52 (1919). “[T]he fundamental right to speak
secured by the First Amendment does not leave people at liberty to publicize their views whenever
and however and wherever they please.” Wood v. Moss, 134 S.Ct. 2056, 2066 (2014) (internal
quotation omitted). “Like most rights, the right secured by the Second Amendment is not unlimited.”
District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (holding that the right to bear arms “is not
unlimited” and there are still “longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbiddi ng the carrying of firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and qualification on the commercial sale of
arms.”). See also Dotson v. Kander, 464 S.W.3d 190, 198 (Mo. banc 2015) (quoting Heller, 554 U.S.
at 626-27). “First Amendment rights are not absolute under all circumstances. They may be
circumscribed when necessary to further a sufficiently strong public interest.” Greer v. Spock, 424
U.S. 828, 842-43 (1976) (Powell, J., concurring). “A defe ndant’s right to present relevant evidence
[pursuant to the Sixth Amendment] is not unlimited, but rather is subject to reasonable restrictions.”
United States v. Scheffer, 523 U.S. 303, 308 (1998) (footnote omitted). “Neither the right to refuse
treatment nor the right to privacy are absolute . . . .” Cruzan by Cruzan v. Harmon, 760 S.W.2d 408,
419 (Mo. banc 1988). “Although cross-examination is a fundamental component of confrontation, it
is not unlimited; limitation of cross-examination does not per se violate a defendant’s right to
confront the witnesses against him.” State v. Russell, 625 S.W.2d 138, 141 (Mo. banc 1981).

7
App. 1977). In Tolliver, even when affirming the suppression of a juvenile’s

statement as taken in violation of section 211.059, the court contemplated some sort

of exigent or emergency circumstances as an exception to the requirements of section

211.059, stating: “In considering this whole situation, it is important to note that

there was nothing of an exigent nature. . . . If there had existed an emergency

situation, much could be excused.” Id. at 410 (emphasis added). 4 Not so

coincidentally, the majority and concurring opinions ignore Tolliver.

That said, for the sake of argument, I am willing to proceed from the majority

opinion’s declaration that J.L.H.’s rights under section 211.059 were violated. I do so

to point out that which has been ignored by the majority opinion: the judge -made

remedy that the majority has engrafted upon section 211.059 (exclusionary rule) is,

itself, subject to rules limiting its application—and when those rules are applied to

the present situation, the exclusionary rule is clearly not appropriate here. 5

4
Though I believe it legally unnecessary, even the majority opinion —perhaps recognizing
that it produces a result adverse to the best interest of the state—invites our legislature to entertain
the idea of “chang[ing] section 211.059” to include specific reference to the fact that a Missouri
juvenile’s section 211.059 rights are subordinate to the public safety exception as announce d in New
York v. Quarles, 467 U.S. 649 (1984). If the Missouri Supreme Court fails to take transfer of this
case to rectify what I believe to be an erroneous declaration of law by the majority opinion’s ruling
today, I join my colleagues in the majority o pinion in inviting our legislature to clarify this topic
relating to section 211.059.
5
In other words, I believe the majority opinion has interpreted section 211.059’s silence on
the topic of any remedy to mean that the legislature intended for the exclus ionary rule’s application
to be interpreted broader than our United States Supreme Court would permit. I am aware of no case
in this state, or the country for that matter, that has interpreted a statute to be deemed to have
broadened the exclusionary rule’s application (i.e., remedy) via silence on the topic; rather, if the
legislature intends such a remedial result, I believe it must say so. Though the majority opinion may
desire to infer by implication such additional words of remedy into section 211.05 9 in this case,
appellate courts in this state “will not interpret a statute as a party wishes it were written,” and we
“will not add statutory language where it does not exist; this Court merely interprets the statutory
language as written by the legislature.” Frye v. Levy, 440 S.W.3d 405, 424 (Mo. banc 2014). “A
court may not add words by implication to a statute . . . .” Asbury v. Lombardi, 846 S.W.2d 196, 202
n.9 (Mo. banc 1993). “[P]rovisions not plainly written in the law . . . should not be added by a court
under the guise of construction to accomplish an end the court deems beneficial.” Smith v.
McAdams, 454 S.W.3d 418, 421 (Mo. App. W.D. 2015) (internal quotation omitted).

8
 Exclusionary Rule (i.e., Suppression of Evidence)

Though section 211.059 is independent of the Miranda decision, like Miranda,

it is obviously a prophylactic rule, designed as a means of protecting a juvenile’s

right against compelled self-incrimination. And like Miranda, it reaches further than

the consitutional right by providing greater protection for the accused. But the fact

remains that the statute is independent of Miranda and section 211.059 provides no

remedy within its statutory framework. 6 J.L.H. sought suppression of his statement as

a remedy. Accordingly, the real question of this case is whether the judicially created

exclusionary rule should be applied in the circumstances of this case.

In large part, this is the point of divergence between the majority and

concurring opinions and my dissent. The majority and concurring opinions ignore

that the only “writing in to the statute” in this case occurs when the majority and

concurring opinions “write in” a remedy to a statute that contains none. And in so

doing, the majority and concurring opinions choose to “write in” the remedy of the

exclusionary rule but believe it is a sound principle of jurisprudence to ignore United

States Supreme Court precedent on the topic of when and how the exclusionary rule

should be applied as a judicially crafted remedy in any situation—statutory,

constitutional rule, international treaty, or otherwise—even though the United States

Supreme Court judically crafted the remedy in the first place. I respectfully submit

6
Had the legislature wished to expressly—and without limitation—exclude the usage of
statements obtained in violation of section 211.059, it could have done so. For example, in section
211.271.3, the legislature provided that “[a]fter a child is taken into custody . . ., all . . . statements
by the child to the juvenile officer . . . are not lawful or proper evidence against the child and shall
not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings
under this chapter.” But unlike section 211.271.3, the legislature did not impose limits on statements
obtained in violation of section 211.059. Thus, any remedy imposed must be judicially crafted. And
where our United States Supreme Court has not limited its analysis of the applicability of the
exclusionary rule as a judicially crafte d remedy to “constitutional rule” cases, see Sanchez-Llamas v.
Oregon, 548 U.S. 331, 349-50 (2006), why would we?

9
that this is an alarmingly dangerous precedent and one that I cannot support. Instead,

I believe we must evaluate the precedent from the United States Supreme Court

instructing us on how and when we may use the remedy of suppression and apply that

precedent to the factual and procedural circumstances of this case, to -wit:

Like the Fifth Amendment, section 211.059 “says nothing about suppressing

evidence obtained in violation of [its] command.” Davis v. United States, 564 U.S.

229, 131 S.Ct. 2419, 2426 (2011). 7 “The question of whether the exclusionary rule’s

remedy is appropriate in a particular context has long been regarded as an issue

separate from the question of whether the . . . rights of the party seeking to invoke the

rule were violated by police conduct.” Illinois v. Gates, 462 U.S. 213, 223 (1983).

Here, we are dealing with a statutory violation, rather than a constitutional one.

But that does not preclude the use of the exclusionary rule, nor any accompanying

discussion about what circumstances justify its use as a remedy. The United States

Supreme Court has applied the exclusionary rule as a remedy for violation of a statute

where the statute at issue implicated important Fifth Amendment interests. See

Miranda, 384 U.S. at 463 (citing McNabb v. United States, 318 U.S. 332, 343

(1943)). But whether the exclusionary rule applies to statutory protections—like any

other instance in which an unwarned self-incriminatory statement has been obtained

by law enforcement—is governed largely by whether the purposes of the

exclusionary rule would be served if applied to the statutory violation. See Sanchez-

7
The majority opinion cites numerous opinions where Missouri courts have, indeed,
judicially created the remedy of suppression for violation of juveniles’ rights against self-
incrimination (where the statute did not itemize such a remedy); yet, not a single one of those cases
involved exigent circumstances emergently impacting the public’s safety and welfare. Nor did any of
those cases involve unwarned police questions expressly limited to finding a weapon that constituted
a continuing and emergent threat to public safety. In my opinion, this is significant to any analysis
evaluating the dual purpose of the exclusionary rule as a judge -made remedy, and as such, the cases
cited by the majority opinion are inapposite to the case at hand.

10
Llamas v. Oregon, 548 U.S. 331, 349-50 (2006) (refusing to apply the exclusionary

rule for officers’ violation of Article 36 of the Vienna Convention, i.e., not advising

the suspect before questioning of his right to consular notification). Accordingly, one

must discern whether the purposes of the exclusionary rule would be served by

applying it to statements obtained from juveniles in violation of section 211.059 but

for the purpose of protecting the public in exigent circumstances threatening public

safety.

The exclusionary rule “serves two distinct purposes: preserving the integrity

of the judicial system and deterring official misconduct.” Michael H. Pryor, The

Exclusionary Rule, 75 Geo. L.J. 845, 846 (1987). See also Michigan v. Tucker, 417

U.S. 433, 447-49 (1974). The United States Supreme Court has cautioned that courts

must “maintain the closest possible fit between the Self -Incrimination Clause and any

judge-made rule designed to protect it.” Patane, 542 U.S. at 643. 8 Thus, if

suppression of evidence obtained in violation of section 211.059 fails to serve the

dual aims of the exclusionary rule (i.e., the assurance of reliable evidence and

8
In Patane, the suspect was questioned absent required Miranda warnings in a non-emergent
setting about the location of .40 Glock pistol in his possession. United States v. Patane, 542 U.S.
630, 635 (2004). The Supreme Court held that even though there was little practical difference
between the suspect’s confessional statement (i.e., statement as to the location of the gun in his
home) and the actual physical evidence recovered (i.e., the gun that was discovered where the suspect
said it would be), “[i]ntroduction of the nontestimonial fruit of a voluntary statement, such as
respondent’s Glock, does not implicate the Self-Incrimination Clause,” and the exclusionary rule was
inapplicable to the recovered weapon. Id. at 643. Though the present case involves exigent
circumstances affecting public safety, and thus, additional factors are present negating application of
the exclusionary rule to J.L.H.’s statement to Sergeant Williams, the holding in Patane undercuts the
majority opinion’s suggestion that J.L.H.’s statement ( i.e., about the location of the gun) was the
only evidence connecting him to possession of the gun. To the contrary, the record reflects tha t the
gun was, not so coincidentally, recovered in exactly the path J.L.H. had taken in his flight from
officers who had initially asked him to stop. Therefore, even without J.L.H.’s statement, the
recovered gun in the immediate vicinity of J.L.H.’s path of attempted escape from law enforcement
was alternatively sufficient to support the juvenile court’s adjudication and disposition ruling. After
Patane, there certainly is no rational basis for applying the judge -made exclusionary rule to the
physical evidence (i.e., gun) that was recovered after J.L.H. was in custody —whether by reference to
protections guaranteed by Miranda or section 211.059.

11
deterrence of official misconduct), it does not meet the close-fit requirement and

should not be applied.

Assurance of Reliable Evidence

When “the right against compulsory self-incrimination [is] involved, [one of

two] justification[s] for the exclusionary rule . . . [is] protection of the courts from

reliance on untrustworthy evidence.” Tucker, 417 U.S. at 448 (footnote omitted).

Examples of compulsory self-incrimination “must, by definition, involve an element

of coercion . . . often depict[ing] severe pressures which may override a particular

suspect’s insistence on innocence.” Id. “Fact situations ranging from classical third-

degree torture, to prolonged isolation from family or friends in a hostile setting, or to

a simple desire on the part of a physically or mentally exhausted suspect to have a

seemingly endless interrogation end, all might be sufficient to cause a defendant to

accuse himself falsely.” Id. at 448-49 (citations omitted).

While the prophylaxis of section 211.059, like Miranda, is designed to ensure

that any incriminating statements given by a juvenile are not coerced (and thereby

may be relied upon), the situations of coercion described in Tucker are a far cry from

those presented here. Here, immediately after his unsuccessful flight from law

enforcement on foot and after unwarned questioning posed to him only about the

location of the weapon he had presumedly tossed in the path of his attempted escape,

J.L.H. promptly told Sergeant Williams where he had tossed the gun.

As the Court in Elstad recognized, “[t]he failure of police to administer

Miranda warnings does not mean that the statements received have actually been

coerced.” Elstad, 470 U.S. at 310. The same can be said of statements obtained upon

12
a failure to warn in compliance with section 211.059. See, e.g., State v. Barnaby, 950

S.W.3d 1, 3 (Mo. App. W.D. 1997) (holding that the absence of a parent at a

juvenile’s interrogation does not “make[ ] a resulting statement illegal per se”).

The simple fact that J.L.H. had not been warned in accordance with section

211.059 does not render his statement unreliable. In fact, the record demonstrates the

contrary. “[T]he reliability of a single item of evidence often depends on other

evidence, rather than being assessable in isolation.” Samuel v. Frank, 525 F.3d 566,

570-71 (7 th Cir. 2008). “[R]eliability may be established in corroboration, as when a .

. . statement reveals a fact, say the location of the murder victim’s body, that only the

murderer could have known.” Id. Here, J.L.H.’s statement was plainly reliable, as

the loaded gun was discovered in the exact location where he indicated it would be

and, not so coincidentally, in the path of his attempted escape from law enforcement

officers who had been chasing him only minutes earlier. Accordingly, the purpose of

excluding unreliable evidence would not be served in this context.

Deterrence of Official Misconduct

The second rationale for applying the exclusionary rule is deterrence of official

misconduct. Tucker, 417 U.S. at 447. But here, it is not clear that officers engaged

in any intentional misconduct or that such misconduct would be deterred by

application of the exclusionary rule in this context.

To begin, though the parties argue over whether Officer Hill knew that J.L.H.

was a juvenile, the real issue is whether Sergeant Williams—the officer who asked

J.L.H. where the gun was—knew that J.L.H. was a juvenile. Quite simply, there is

nothing in the record indicating that Sergeant Williams knew that J.L.H. was a

13
juvenile. And in the absence of J.L.H.’s juvenile status, Sergeant Willi ams was

clearly justified under Quarles in asking J.L.H. about the whereabouts of the gun.

See Berkemer v. McCarty, 468 U.S. 420, 431 (1984) (holding that “[i]t would be

unreasonable to expect the police to make guesses as to the nature of the criminal

conduct at issue before deciding how they may interrogate a suspect.”); Davis, 131

S.Ct. at 2429 (“[W]hen binding appellate precedent specifically authorizes a

particular police practice, well-trained officers will and should use that tool to fulfill

their crime-detection and public-safety responsibilities. . . . The deterrent effect of

exclusion in such a case can only be to discourage the officer from ‘do[ing] his

duty.’”).

Requiring exclusion of evidence in this context would force officers

confronting similar situations first to verify whether the suspect is a juvenile or adult,

and doing so would hamper the public safety rationale for the questioning (of the

location of the dangerous weapon) in the first place. The entire justification for

bypassing the Miranda warnings in Quarles was the exigency of the circumstances

and the need to protect the public’s safety. Forcing officers to take additional time to

verify whether a suspect is a juvenile before asking the limited public safety question

only exacerbates the exigency of the situation. 9 Thus, the only thing to be deterred

would be an officer’s swift response to protect the public at large —that is,

“discourag[ing] the officer from ‘do[ing] his duty.’” Id. Accordingly, the deterrence

rationale does not support exclusion.

9
Limiting the availability of the Quarles exception when dealing with an adult suspect with a
youthful appearance would be problematic because “a State may not impose . . . greater restrictions
as a matter of federal constitutional law when [the Supreme] Court specifically refrains from
imposing them.” Oregon v. Hass, 420 U.S. 714, 719 (1975) (footnote omitted).

14
 Supression Serves Neither J.L.H.’s Welfare Nor the State’s Best Interest

Another aspect of this case that the majority and concurring opinions have

ignored is that the present proceeding is not a criminal proceeding; rather, the present

proceeding is a civil juvenile delinquency proceeding. The State of Missouri is not

seeking to confine J.L.H. in a state penitentiary; instead, the State is attempting to

treat and rehabilitate a troubled youth before the “sins of his youth” permanently scar

the hope for his future. This, I believe, is a distinction with a difference and bears

relevance on the discussion of the topic of what remedy best serves both J.L.H.’s

welfare and the State’s interest in guiding J.L.H. away from a life that may lead to a

criminal court.

Herein lies another problem I find with the majority and concurring opinions

relying so heavily upon State v. Wade, 531 S.W.2d 726, 729 (Mo. banc 1976), and

State v. Arbeiter, 408 S.W.2d 26, 29-31 (Mo. 1966). Reliance upon those cases

overlooks a vital distinguishing factor: both Wade and Arbeiter were criminal

prosecutions, and not civil juvenile delinquency proceedings.

This distinction is important because it changes the perspective and purpose of

both the juvenile and the court. In Wade and Arbeiter, the juveniles were not in the

position of delinquent children; instead, they stood before the court as criminal

defendants, subject to punishment through incarceration. Though minors when they

committed their crimes, Wade and Arbeiter were adults in the eyes of the law, and the

court’s duty was to ensure a just sentence for their crimes. In J.L.H., however, the

juvenile stood before the juvenile court as a misguided youth in need of treatment and

rehabilitation, and the juvenile court’s duty was to help reform the child and guide

15
him back to a law-abiding course of life so that he did not end up being another

criminal defendant.

“The purpose of . . . chapter [211] is to facilitate the care, protection and

discipline of children who come within the jurisdiction of the juvenile court. This

chapter shall be liberally construed, therefore, to the end that each child coming

within the jurisdiction of the juvenile court shall receive such care, guidance and

control as will conduce to the child’s welfare and the best interests of the state . . . .”

§ 211.011 (emphasis added). According to the statute, there are two interests at play

in juvenile cases: the child’s welfare and the best interests of the state. In light of

those interests, it is difficult to see how suppression of J. L.H.’s response to a question

posed solely to protect the safety of the public is an appropriate response insofar as

suppression fails to serve either interest identified.

As I have pointed out previously, section 211.059 provides no remedy for a

violation of its mandates. Though suppression has been sought and applied in

juvenile cases, both case law and the Juvenile Code itself recognize that suppression

may not serve the juvenile’s welfare insofar as suppression of statements, generally,

in the juvenile case runs counter to the rehabilitative purposes of the Juvenile Code.

Section 211.271.3 provides that, “[a]fter a child is taken into custody . . . all

admissions, confessions, and statements by the child to the juvenile officer and

juvenile court personnel . . . are not lawful or proper evidence against the child and

shall not be used for any purpose whatsoever in any proceeding, civil or criminal,

other than proceedings under this chapter.” (emphasis added). “[T]he underlying

policy and purpose of § 211.271(3) is to allow a juvenile to discuss his problems with

16
the juvenile officer in a relaxed, non-adversary, confidential setting freely, openly and

without fear in order that the juvenile officer and juvenile court personnel may

attempt to aid the youth in his rehabilitation.” State v. Ross, 516 S.W.2d 311, 320

(Mo. App. 1974). “If the purpose and underlying policy of the statute is to be

meaningful, and a youth is to be encouraged to discuss his problems f reely so that

juvenile court personnel may be in a better position to aid the juvenile, we believe

that not only the statement made to the juvenile officer, but also physical evidence

obtained thereby, such as the gun here, which is not otherwise discovera ble from an

independent source should also be inadmissible except in the juvenile court system.”

Id.

Though suppression was an appropriate remedy in both Wade and Arbeiter,

those cases were criminal, not juvenile, cases. Conversely, because we want to

encourage open communication in juvenile cases in order to facilitate the juvenile’s

rehabilitation, applying the suppression remedy in a juvenile case such as this one

makes little sense.

“The purpose of the Juvenile Act is not to convict of criminal offenses but is to

safeguard and reform erring children . . . .” In re C, 314 S.W.2d 756, 760 (Mo. App.

1958) (emphasis added). “A delinquency hearing, therefore, is not a ‘criminal case,’

as it does not charge the juvenile with the commission of a crime, eve n though the

conduct alleged against him may be the violation of a criminal law.” State ex rel.

R.L.W. v. Billings, 451 S.W.2d 125, 127 (Mo. banc 1970). “It is but the assertion of

the state’s power, parens patriae, for the reformation of a child and not for his

punishment under the criminal law.” Id. “[F]rom the moment a child commits an

17
offense, in effect he is exempt from the criminal law unless and until the Juvenile

Court waives its jurisdiction.” Harling v. United States, 295 F.2d 161, 163 (D.C. Cir.

1961) (footnotes omitted). 10 And “[i]t is . . . because children are, generally

speaking, exempt from criminal penalties that safeguards of the criminal law, such as

. . . the exclusionary . . . rule, have no general application in juvenile proceedings.”

Id. (emphasis added).

In addition to the welfare of the juvenile, the Juvenile Code is also designed to

consider the best interests of the State. “[T]he state, as parens patriae, - the

community, - society, - has an interest . . . to protect the public from possible injury .

. . .” State ex rel. Wilkerson v. Skinker, 126 S.W.2d 1156, 1161 (Mo. 1939). Clearly,

it is in the public’s best interest that law enforcement officers be permitted to ask

public safety questions without risking suppression. The rationale in New York v.

Quarles, 467 U.S. 649 (1984), was that “concern for public safety must be paramount

to adherence to the literal language of the prophylactic rules enunciated in Miranda.”

Id. at 653. Accordingly, the suppression of J.L.H.’s sta tement in response to the

public safety question also fails to protect the best interests of the State.

In short, even if Wade and Arbeiter may be read to require suppression as the

remedy for violations of the Juvenile Code, that remedy was in the context of

subsequent criminal prosecutions, not civil juvenile delinquency adjudications. And

10
Though the Missouri Supreme Court opted not to follow Harling in State v. Arbeiter, 449
S.W.2d 627, 633 (Mo. 1970), it did so because it believed that our statute (§ 211.271.3) provided for
a different rule. (Harling required absolute exclusion of juvenile statements in subsequent criminal
proceedings, while the Missouri Supreme Court determined in State v. Wright, 515 S.W.2d 421 (Mo.
banc 1974), that—under certain circumstances irrelevant here —a juvenile’s statement could be used
in criminal court.) The Court ultimately agreed with much of the rationale in Harling. Arbeiter, 449
S.W.2d at 633 (“The considerations of ‘fundamental fairness’ alluded to in Harling do not permit the
state, in the harsh adversary arena of the criminal courts, to take advantage of the procedures and
attitudes which it promotes under the Juvenile Code.”).

18
even then, neither case accounted for the exact scenario present in this case—where

the unwarned statement was made in response to a public safety question involving

exigent circumstances. Arbeiter specifically left other scenarios open: “We are, of

course, determining only the question here presented. We do not consider the

question of spontaneous statements by a juvenile prior to being tak en before the

juvenile judge or juvenile officer; nor do we consider statements of a juvenile in

response to questioning after § 211.061 has been complied with.” Arbeiter, 408

S.W.2d at 31. Thus, neither Wade nor Arbeiter mandate suppression in this case.

Conclusion as to Applicability of the Exclusionary Rule

In short, neither purpose of the exclusionary rule would be served by its judge -

made remedial application in the context of the purported violation of J.L.H.’s section

211.059 rights. Likewise, neither purpose of the Juvenile Code would be served by

suppressing J.L.H.’s statement to law enforcement about the location of a gun that

posed an exigent threat to the public’s safety. The only purpose served by applying

the exclusionary rule here would be to say that, though the need for answers to

questions in a situation posing an exigent threat to the public safety outweighs the

need for the prophylactic rule protecting the Fifth Amendment’s privilege against

self-incrimination for adults in a criminal court context, it does not outweigh

derivative statutory requirements (i.e., § 211.059) in the context of a Juvenile Code

designed to openly address the troubles of youth in a civil juvenile delinquency

proceeding. The result is to elevate a procedural protection for a delinquent

juvenile—who is not subject to criminal penalties—over the safety of the general

public, which here included many innocent children and adults. Such a result ignores

19
the purpose of the Juvenile Code, ignores the purpose of the exclusionary rule, and is

fraught with dangerous practical ramifications to law enforcement performing its duty

in exigent circumstances affecting the public’s safety. Accordingly, I do not believe

the exclusionary rule should be applied as a judge-made remedy—under section

211.059—for J.L.H. in this case. 11 See Sanchez-Llamas, 548 U.S. at 349 (“[T]he

reasons we often require suppression for Fourth and Fifth Amendment violations are

entirely absent [in this case].”).

11
I have located thirteen other states across the country with statutes codifying Miranda
warnings to juveniles in similar fashion to Missouri: Alabama, Colorado, Connecticut, Indiana,
Kansas, Montana, New Hampshire, New York, North Carolina, New Jersey, Texas, Washington, and
West Virginia. Of these states, none has interpreted its statute to expand the boundary of the
exclusionary rule as a remedy for violation of its juvenil e Miranda statute as the majority opinion has
done in the instant case. Instead, where exigent circumstances involving public safety were present
and a juvenile was questioned without warning as to the whereabouts of the weapon involved, those
states have not applied the exclusionary rule to the juvenile’s unwarned statements. See, e.g., In Re
Cy R., 841 N.Y.S.2d 25, 28 (N.Y. App. Div. 2007); State In Interest of A.S., 548 A.2d 202, 205-06
(N.J. Super. Ct. App. Div. 1988) (“Even if [the juvenile] was in c ustody when he was questioned and
when he led the police to the gun, the concern for public safety must be paramount to adherence to
the literal language of the prophylactic [Mirand a ] rules[.]”). And although the State of Iowa does
not have a similar juvenile Miranda statute, its Supreme Court’s commentary on a juvenile’s rights
relating to custodial questioning is apropos when it states that the rights of juveniles “do not exist in
a vacuum” and must be balanced with the rights of the public to be protected against exigent threats
to the public. In re J.D.F., 553 N.W.2d 585, 588-89 (Iowa 1996). See also Commonwealth v. Dillon
D., 863 N.E.2d 1287 (Mass. 2007) (holding juvenile’s poss ession of over fifty bullets alone was
enough to support the inference that a gun was in close proximity and unwarned statements were
permissible because the obligation of protecting other students and the community outweighed
juvenile’s rights to be questioned in the presence of juvenile’s parents or other interested adult); In re
Roy L., 4 P.3d 984 (Ariz. Ct. App. 2000) (holding that unwarned questions of a juvenile about a gun
in his possession while in a public area near a high school were permissible t o protect the public
from exigent circumstances affecting the public’s safety).

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 Conclusion

I would affirm the juvenile court’s ruling denying J.L.H.’s motion to suppress

and would affirm the juvenile court’s adjudication and disposition ruling. 12

Mark D. Pfeiffer, Judge

12
The substance of my dissent is a response to the majority opinion’s ruling as to Point I of
J.L.H.’s appeal. As the majority opinion notes, its ruling as to Point I is dispo sitive of the result the
opinion proposes. As I propose the opposite result, Points II and III are relevant to my discussion of
what the result of this case should be.
In Point II, J.L.H. argues that he was arrested without probable cause. I disagree. B ecause
“[a] de facto arrest occurs for Fourth Amendment purposes when the officer’s conduct is more
intrusive than necessary for an investigative stop,” State v. Wickerham, 28 S.W.3d 401, 403-04 (Mo.
App. E.D. 2000) (internal citation omitted), I believe t he facts of this case are such that a reasonable
person in J.L.H.’s position would have understood he was under de facto arrest. And, while a de
facto arrest must be based on probable cause, “[p]robable cause exists when the arresting officer is
aware of facts and circumstances that are reasonably trustworthy and would lead a person of
reasonable caution to believe an offense had been committed.” State v. Pfleiderer, 8 S.W.3d 249,
256 (Mo. App. W.D. 1999). “Probable cause [to arrest] does not mean absolu te certainty. . . . Much
less evidence is necessary to establish probable cause than is required to establish guilt . . . .” State
v. Tackett, 12 S.W.3d 332, 339 (Mo. App. W.D. 2000) (internal quotation omitted). “While flight
alone does not establish probable cause, it can supply the key ingredient justifying the decision by a
law enforcement officer to take action.” State v. Smith, 11 S.W.3d 733, 739 (Mo. App. E.D. 1999)
(internal quotation omitted). Here, J.L.H.’s de facto arrest was not based solely on his flight from
the officers. The officers had an accurate description of a juvenile wearing certain distinctive
clothing and being armed with a gun. J.L.H. matched that description. When J.L.H. was approached
by officers, first he fled, then he failed to stop when instructed to do so, and then he tried to evade
officers by ducking behind a car (out of sight), running down a hill, and jumping on a sidewalk along
Brush Creek. It was not until an officer drew his weapon and ordered J.L.H. to “Stop” o nce again
that J.L.H. got down on the ground. These circumstances provided probable cause for the officers to
effect a de facto arrest of J.L.H.
As to Point III, I note that J.L.H.’s argument is patently illogical and contrary to his own
admission—or rather assertion both before the juvenile court and this court —that he was entitled to
the protection of section 211.059—a statute that is only applicable to juveniles. “‘A judicial
admission is an act done in the course of judicial proceedings that concedes for the purpose of
litigation that a certain proposition is true.’” Dawson v. Dawson, 366 S.W.3d 107, 115 (Mo. App.
W.D. 2012) (quoting Moore Auto Grp., Inc. v. Goffstein, 301 S.W.3d 49, 54 (Mo. banc 2009)). “A
judicial admission waives or dispenses with the production of evidence and concedes for the purpose
of the litigation that a certain proposition is true.” Peace v. Peace, 31 S.W.3d 467, 471 (Mo. App.
W.D. 2000) (internal quotation omitted). Simply put, J.L.H. cannot be heard to argue that he is a
juvenile entitled to the statutory protections of section 211.059 that are only afforded to juveniles,
but then take the position that the Juvenile Officer has failed to adduce evidence that he is, in fact, a
juvenile. J.L.H.’s judicial admission as to his juvenile status concedes for the purpose of this
litigation that he is a juvenile.
Thus, I propose to affirm the juvenile court’s adjudication and disposition because all three
of J.L.H.’s points on appeal are without merit.

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