In re E.W.

Skoglund, J.

¶ 1. In this delinquency proceeding, E.W. appeals from an order denying his motion to suppress statements to the police allegedly made in violation of his rights under the Fifth and Sixth Amendments to the U.S. Constitution and Chapter I, Article 10 of the Vermont Constitution. For both his federal and state claims, the critical issue is whether E.W. was “in custody” while being questioned by the police at his foster home without being apprised of his Miranda rights. We conclude that the juvenile was in custody, and therefore reverse the trial court judgment.

¶ 2. The facts may be summarized as follows. E.W. was fifteen years old, in the custody of the Department for Children and Families (DCF), and living in a foster home when the events in question occurred. On the morning of June 7, 2013, a Vermont state trooper in uniform arrived at E.W.’s foster home to investigate a break-in and motor-vehicle theft.2 The officer testified that his focus centered on E.W. as a suspect after receiving information that a vehicle had been stolen in Glover and learning on the way to the scene that E.W. “had run away from a foster home and that he had previously stolen a vehicle in the past.”

¶ 3. After arriving at E.W.’s residence, the officer spoke with an adult male, who informed the officer that he was E.W.’s foster father. The foster father testified that E.W. had been living there about six to eight weeks at the time. He recalled that the officer explained that “he wanted to speak with E.W. in regards to some stolen property that he- needed to find,” that “there was a witness and that someone had seen E.W.,” and that “they were looking for a car.”

¶ 4. The foster father then spoke privately with E.W. and told him not to say anything to the officer until the foster father contacted DCF. When asked what he and E.W. discussed, the foster father responded, “[hjonesty,” explaining that he was “trying to encourage E.W. to be honest,” and how “[i]t’s not always easy to do the right thing.” He denied specifically directing E.W. to do the right thing, however, or telling him that he had to speak with the officer.

¶ 5. The foster father telephoned for guidance from E.W.’s guardian ad litem (GAL), who told him that “[ujsually the *315attorneys do not like the children interviewed unless they are there.” The GAL then attempted to reach E.W.’s attorney, leaving a voice mail, and then spoke with the foster father again.3 The GAL advised him to be present during any conversation between E.W. and the police officer, and the officer then took the telephone. The GAL recalled explaining to the officer that their attorneys generally do not like the children questioned “without them present.” The officer responded that there was a family “without their ear and that E.W. was the only one that knew where the car was because they believe he had taken it” and they “would like to be able to get these people back their car.” The GAL then told the officer “to do what you gotta do” but to be sure that the foster parent was present during the interview. While the officer and the foster parent spoke with the GAL, E.W. did not.

¶ 6. The ensuing interview was not recorded, and very little testimony was adduced about its specific content or progression. The officer recalled that it lasted about an hour, started inside the house, and then moved outside to the porch and finally to a roofed vegetable stand in front of the house. No Miranda warnings were given. The foster father was present throughout. He recalled that the officer “asked E.W. about where the car was,” informing him that the police “were aware” he had taken it to Derby “but didn’t know where it had gone after that.” The foster father also recalled that he twice interrupted the officer’s questioning to speak privately with E.W. when it appeared that “the floodgates . . . opened” and E.W. started making admissions to offenses beyond those that the officer had described.

¶ 7. E.W. was subsequently charged with two counts of burglary, four counts of unlawful trespass in an occupied residence, three counts of petit larceny,4 one count of unlawful mischief, and one count of operating a vehicle without owner consent. He moved to suppress his statements to the officer and dismiss all counts, asserting violations of his Fifth and Sixth Amendment rights as well as his rights under Chapter I, Article 10 of the Vermont Constitution. The trial court denied the motion, concluding that *316E.W. was not in custody at the time of the interrogation, and that Miranda warnings were therefore not required. E.W. then entered a conditional plea to all counts except the unlawful-mischief count, which was dismissed by the State, and reserved his right to appeal the suppression ruling.

¶ 8. On appeal, E.W. argues that his motion to suppress should have been granted under both the federal and state constitutions. As to the U.S. Constitution, E.W. argues that he should have been given Miranda warnings because he was in custody during his conversation with the officer. As to the Vermont Constitution, E.W. claims that he should have had the opportunity to consult with a genuinely interested adult independent from the State before being questioned, whether or not he was in custody, as required by In re E.T.C., 141 Vt. 375, 377-80, 449 A.2d 937, 939-40 (1982).

¶ 9. A motion to suppress raises a mixed question of fact and law. State v. Sullivan, 2013 VT 71, ¶ 15, 194 Vt. 361, 80 A.3d 67. We uphold the trial court’s findings of fact unless they are clearly erroneous. State v. Mara, 2009 VT 96A, ¶ 6, 186 Vt. 389, 987 A.2d 939. Whether the facts meet the proper standard to justify the relevant police action is a question of law, which we review de novo. Id.

¶ 10. Under the Fifth and Sixth Amendments to the U.S. Constitution, criminal defendants have the right to receive certain warnings before being subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444-45 (1966).5 Since it is uncontested that E.W. was interrogated, we must determine whether he was “in custody” at the time in order to determine whether he had a right to Miranda warnings. See State v. Garbutt, 173 Vt. 277, 282, 790 A.2d 444, 448 (2001) (“Suspects not in custody are not entitled to Miranda warnings.”). “Defendant bears the burden of proving that he was ‘in custody’ and, therefore, entitled to Miranda warnings.” State v. LeClaire, 2003 VT 4, ¶ 15, 175 Vt. 52, 819 A.2d 719.

¶ 11. Our seminal case on juvenile rights under the Vermont Constitution, Chapter I, Article 10, is In re E.T.C. There, we found that a juvenile may voluntarily and intelligently waive his right against self-incrimination and his right to counsel under Article 10 only if:

*317(1) he [is] given the opportunity to consult with an adult;
(2) that adult [is] one who is not only genuinely interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution, e.g., a parent, legal guardian, or attorney representing the juvenile; and (3) the independent interested adult [is] informed and . . . aware of the rights guaranteed to the juvenile.

141 Vt. at 379, 449 A.2d at 940.

¶ 12. The parties treat E.W.’s Miranda claim as entirely distinct from his Article 10 claim. It is not so distinct. The year after deciding E.T.C., we held that a juvenile’s right to consult with an independent interested adult under Article 10 attaches simultaneously with the right to Miranda warnings — during custodial interrogation — and not before and not without custody. State v. Piper, 143 Vt. 468, 473, 468 A.2d 554, 557 (1983) (“[S]uch right accrues to a person under the age of eighteen years at the commencement of a custodial interrogation by the police . . . simultaneously with the right to be given Miranda warnings.”); cf. State v. Zumbo, 157 Vt. 589, 591-93, 601 A.2d 986, 988 (1991) (rejecting argument by adult defendant that Article 10 requires Miranda warnings in circumstances other than those required by the Fifth Amendment). In Piper, the defendant, who was a juvenile, made exactly the same argument E.W. makes here — that the requirement of an independent interested adult should apply whenever police interrogate a juvenile whether or not the juvenile is in custody. We rejected the argument, explaining:

Defendant would have us extend the rule to cover all situations in which minors are questioned by the police.
We find this position untenable. The burden on law enforcement officials would far outweigh the benefit accruing to minors. The police would face a significant handicap if, before questioning any witness who is a minor, they had to summon an interested adult to the station or scene. The difficulty in producing such an adult could cause unwarranted and prejudicial delay in investigatory situations when time is often of the essence.

Piper, 143 Vt. at 473, 468 A.2d at 557.

*318¶ 13. This holding is congruent with the determination that, for adult defendants, Article 10 is coextensive with the Fifth Amendment right against self-incrimination and very closely related to the Sixth Amendment right to counsel. State v. Oney, 2009 VT 116, ¶ 8 n.1, 187 Vt. 56, 989 A.2d 995. E.W.’s claim under Article 10 that E.T.C. was violated because the foster father was not an independent interested adult therefore also hinges on whether E.W. was “in custody” as defined under Miranda. As discussed below, however, the presence or absence of an independent adult may have some bearing on whether E.W. was in custody, i.e., whether a reasonable person in E.W.’s position would have felt free to terminate the interview.

¶ 14. We therefore turn to the question of whether E.W.’s police interrogation was custodial. The U.S. Supreme Court and this Court have repeatedly emphasized that whether a suspect is in custody is an objective inquiry. J.D.B. v. North Carolina, 564 U.S. 261, 270, 131 S. Ct. 2394, 2402 (2011); Sullivan, 2013 VT 71, ¶28. The test is whether, given “all of the circumstances surrounding the interrogation,” “a reasonable person [would] have felt he or she was at liberty to terminate the interrogation and leave.” J.D.B., 564 U.S. at 270, 131 S. Ct. at 2402 (quotations omitted); see also State v. Willis, 145 Vt. 459, 475, 494 A.2d 108, 117 (1985).

¶ 15. This Court has listed several nonexhaustive factors to consider in determining whether a suspect was in custody. “[T]he most important factor is whether police told the defendant that he or she was free to leave.” Sullivan, 2013 VT 71, ¶ 29 (citing State v. Hieu Tran, 2012 VT 104, ¶ 14, 193 Vt. 148, 71 A.3d 1201). Other relevant factors that we have recognized include the location and duration of the questioning, the extent to which the suspect was confronted with evidence of his or her guilt, the use of deceptive police practices, and whether the officer was armed. Id. Additionally, the U.S. Supreme Court has recognized that a suspect’s age, if known or apparent to a reasonable officer, is an objective factor that should be accounted for in the custody analysis. J.D.B., 564 U.S. at 271-78, 131 S. Ct. at 2402-06. As the high court explained, a child’s age “generates commonsense conclusions about behavior and perception” which “apply broadly to children as a class” and are “self-evident to anyone who was a child once himself.” Id. at 271, 131 S. Ct. at 2403 (quotation omitted).

*319¶ 16. As noted, the record here contains very little about the content or progression of the interrogation itself. Nevertheless, for purposes of determining whether the interrogation was custodial in nature, certain salient facts are clear. First, there is no dispute that the officer here did not explain to E.W. or his foster parent that they were free to end the interview and leave. Although not dispositive, we have held that a clear communication from the police to the person being questioned about his or her freedom is “the most important factor” in determining whether a reasonable person would have felt free to terminate the interview and leave at any time. Hieu Tran, 2012 VT 104, ¶ 14. When the police are questioning a minor, the relative inexperience and vulnerability to authority of the youthful suspect renders this factor even more critical.

¶ 17. A second factor that we have identified as significant in this context is “the interviewer’s communication to the suspect of his belief in the suspect’s guilt.” Id. ¶ 12. The trial court here found no “evidence that [the officer] communicated his subjective belief that [E.W.] was guilty of the theft of the car to [E.W.] during the interview, or that he confronted [E.W.] with evidence of his guilt.” Nevertheless, the record is clear that E.W.’s foster parent testified that the officer clearly spoke “his mind” with E.W., and further testified that at some point during the interrogation the officer “asked E.W. about where the car was,” indicating that the police “were aware” he had brought the car to Derby “but didn’t know where it had gone after that.” This was consistent with the officer’s statement to the GAL that he was eager to ask E.W. about the car’s location for the sake of its owners.6

¶ 18. A third relevant factor, as noted, is the suspect’s age.7 The U.S. Supreme Court has recognized that “a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go,” and that courts may therefore “account for that reality” in their custody *320analysis. J.D.B., 564 U.S. at 272, 131 S. Ct. at 2403. Although at fifteen years of age, E.W. was two years older than the minor in J.D.B., to speculate that his maturity, judgment, and ability to withstand the pressures of a police interrogation were thereby substantially different from that of a thirteen-year-old would be to employ the very reasoning the high court rejected in favor of “commonsense conclusions . . . self-evident to anyone who was a child once himself, including any police officer or judge.” Id. (emphasis added); see also Eddings v. Oklahoma, 455 U.S. 104, 116 (1982) (noting that “the normal 16-year-old customarily lacks the maturity of an adult”). As the high court has observed, adolescents “lack the experience, perspective, and judgment” of adults, id., and thus “cannot be viewed simply as miniature adults.” J.D.B., 564 U.S. at 274, 131 S. Ct. at 2404. This is not to say that a fifteen-year-old may never feel free to terminate a police interview, but only that we must be particularly vigilant to ensure that other factors support that conclusion. The officer’s failure here to expressly inform E.W. and his foster parent of the right to terminate the interview thus becomes even more significant.

¶ 19. The dissent asserts that our analysis improperly weighs E.W.’s age as a factor indicating custody. The dissent argues that E.W.’s age does not support the finding that he was in custody for two reasons. First, the dissent notes that the record is unclear as to whether the officer knew E.W.’s precise age. We have acknowledged this fact, however, while also noting that the officer plainly knew that E.W. was a minor in foster care. The dissent also insists that a suspect’s age is not “dispositive,” and that the U.S. Supreme Court did not hold that “the thirteen-year-old in J.D.B. was automatically in custody by virtue of his age.” Post, ¶¶ 33, 34. These are correct statements of the law, but are simply straw men in this context, as nothing that we have said or implied in this decision is remotely inconsistent with them. For the dissent to maintain, however, that nothing whatsoever about E.W.’s age was relevant to his perception as to whether he was free to terminate the officer’s questioning is incorrect, and wars with the common-sense rule articulated by the U.S. Supreme Court.

¶20. Another factor that may be relevant to determining whether a reasonable juvenile would have felt free to terminate or leave a police interview is the presence or absence of an “independent adult.” In re J.E.G., 144 Vt. 309, 312, 476 A.2d 130, 132 *321(1984); see also E.T.C., 141 Vt. at 379, 449 A.2d at 940 (setting forth criteria for determining whether juvenile’s waiver of Miranda rights was voluntary, including opportunity to consult with independent adult genuinely interested in juvenile’s welfare). The record here shows that E.W.’s foster father spoke with E.W. before the police interview commenced, was present during the interview, and twice interrupted the questioning to speak with E.W. in private. He also recalled, however, that what they discussed was “[h]onesty” — which he “encouraged” — and the difficulty of “doing the right thing.” Thus, whether the foster parent’s presence enhanced E.W.’s sense of freedom to decline to answer the officer’s questions or actually undermined it is not entirely clear. See E.T.C., 141 Vt. at 377-79, 449 A.2d at 938-40 (holding that director of grqup home who encouraged juvenile to “cooperate” with police and be “straight” failed to provide independent adult counsel and effectively coerced admissions).8

¶ 21. The dissent claims that we erroneously consider the presence of an adult in the custody analysis. Post, ¶ 36. Again, the argument is baseless. We have acknowledged and discussed at length the distinction between the Article 10 and Miranda analyses, but nothing in our decisional law holds that the presence or absence of a disinterested adult may not be considered in determining whether a reasonable person in E.W.’s position would have felt free to leave. We do not take issue with the trial court’s finding that the foster parent here was “genuinely interested” in E.W.’s welfare, but this does not gainsay the fact that he admittedly “encouragefd] E.W. to be honest” and talked to him about how it was “not always easy to do the right thing.”

¶ 22. Another relevant factor is the physical setting where the interview occurred. Here, the interview did not occur in an inherently intimidating or confining location like a police station or police cruiser, but rather ranged from inside the foster parent’s house, to the front porch, to a nearby vegetable stand. An otherwise salient factor pointing away from a finding that the *322interview was custodial in nature loses some of its force, however, when E.W.’s circumstances are recalled: he was in state custody and living in a foster home where he had been placed some six to eight weeks earlier, and had recently — according to the officer — been reported as a “runaway.” Thus, whatever comfort a minor might otherwise derive from the safety and familiar surroundings of the family home was hardly available here. Far from it. And whatever sense of freedom another teenager might otherwise feel was certainly not E.W.’s to enjoy, as a ward of the state living in an assigned placement. This is not to equate DCF custody with custody for Miranda purposes, but simply to recognize the reality that E.W.’s status was far less conducive to withstanding police authority than another minor in similar physical circumstances. See J.D.B., 564 U.S. at 276, 131 S. Ct. at 2405 (holding that neither officers nor courts may ignore “the effect of objective circumstances that, by their nature, are specific to children”).

¶ 23. Thus the record here leaves little room to conclude that a reasonable juvenile in E.W.’s circumstances would have felt free to terminate the police interview. The officer’s failure to expressly inform E.W that he was free to terminate the questioning — which we have recognized as the single most important factor in the custodial analysis — looms even larger here, where the suspect was a juvenile, a ward of the state, and a foster-home resident. Absent Miranda warnings, therefore, we must conclude that E.W.’s admissions were improperly obtained, and that the motion to suppress should have been granted. Accordingly, the trial court judgment must be reversed.

Reversed.

The record does not specifically disclose whether the officer was armed.

E.W. was represented by counsel at the time in connection with a prior pending juvenile delinquency petition.

The trial court reports this as two counts of petit larceny, but we count an additional charge filed on July 8, 2013. E.W. eventually pled to three counts of petit larceny.

The same constitutional protections apply to a juvenile in a delinquency proceeding as to an adult defendant in a criminal prosecution. 33 V.S.A. § 5288.

The dissent asserts that, in several instances, we are making factual findings contrary to those of the trial court, and this is one of them. Not so. Here, we simply note the undisputed testimony that the officer asked E.W. “about where the car was.”

The record leaves no doubt that the officer was aware that E.W. was a minor in foster care, although it is unclear whether he knew EW’s specific age.

This is another instance where the dissent mistakenly asserts that we are “relying on facts contrary to the court’s findings.” Post, ¶ 38. The foster parent testified, and the trial court found, that the foster parent did not tell E.W. to do the right thing. The foster parent also testified, however, that he encouraged E.W. to be honest, and told him that it was “not always easy to do the right thing.” These are not facts “contrary to the court’s finding.”