- by Jack Ryan
Legal & Liability Risk Management Institute

Question Presented:
Can a Truant Officer employed by the local Board of Education question students on request from the Superintendent?

Short Answer: 
There really is no way to answer the question as presented.  Several pieces of relevant information must be added to the equation before a definitive answer may be given.  The crux of the question seems to be can a truant officer question a student without violating the 5th Amendment to the Constitution.  The answer depends on several significant issues. 

Detailed Answer:

First, is the matter for which the child will be questioned criminal?  The 5th Amendment applies only when the statement is used against the person in a criminal case, thus, if no criminal case is possible based on the conduct in question or it has been decided that no prosecution will be sought, there is no 5th Amendment issue.  Additionally, even if there is a criminal case, as long as the statement is not used against the subject, there is no 5th Amendment issue.ⁱ

The second issue that may be raised by this question is whether or not the Miranda warnings required for in-custody interrogation would have to be read by the truant officer prior to questioning.  This is also going to depend on the facts.  Has the student been taken into custody in a manner which would be closely associated with the factors of a formal arrest? Most courts have concluded that the fact that a child is in school under compulsory education requirements does not translate to custody for Miranda purposes. 

Another factor to consider under Miranda is that the majority of courts looking at the Miranda issue in the school environment have concluded that school officials do not have to give warnings while law enforcement does have to give warnings, again, assuming the student is in “custody” when questioned.  Thus, to determine whether or not the truant officer has to give warnings will depend on whether the officer is determined to be more of a police officer or more like a school official. 

As a general observation, under the United States Constitution, a truant officer may question a student; the real issue is whether or not there is a Miranda issue that must be addressed prior to the questioning.  One must also check to determine if there are any requirements under state law, such as parental involvement etc. that must be met prior to the questioning.

In Fare v, Michael C.ⁱⁱ, the United States Supreme Court determined that there is no per se rule regarding a juvenile’s ability to waive their rights under the decision in Miranda.  The Court ruled that a totality of the circumstances analysis determines the validity of the waiver.  In assessing the totality of the circumstances, courts should consider the age, education, background and experience of the juvenile to determine whether there has been a valid waiver of the juvenile’s rights under Miranda.
Some additional cases provide guidance concerning interrogations in the school setting.
A case from the Arizona Supreme Court, In re Andre M. examined the interrogation of a juvenile at school while his mother was outside the room and not allowed in by the police.ⁱⁱⁱ

On February 6,2002 , sixteen and a half-year old Andre M. was taken to the principal’s office after being involved in a fight.  Police responded to the school and interviewed Andre.  Andre’s mother also responded to the school and sat with Andre and the assistant principal while waiting for further questioning by the police. 

While Andre sat with his mom and the principal, the police recovered a sawed-off shotgun that was believed to be connected to Andre.   Andre’s mother was not told of the discovery, nor was she told that police intended to further question her son.  She also was not told that the police intended to question Andre regarding a topic other than the fight.

At some point in the afternoon Andre’s mom had to leave the school for a period of time in order to pick up Andre’s younger sibling.   “The assistant principal assured Andre’s mother that if she did not return in time to be present during police questioning, either the assistant principal or another administrator would sit in on the interview.    That information, regarding Andre’s mother’s request, was never relayed to the police.

When Andre’s mother returned to the school twenty minutes later she found that Andre was being questioned in a closed room by three officers.  Andre’s mom tried to enter but was prevented from entering by a police officer positioned outside the door.  During the interview, Andre admitted to possession of the shotgun.   Andre sought to have the confession suppressed arguing that he did not knowingly, intelligently or voluntarily waive his rights and he did not have his mother present during questioning. 

In analyzing the voluntariness of a juvenile confession the court noted that the “greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.”

Andre argued for a per se rule requiring the suppression of statements made under circumstances where a parent has been intentionally excluded from an interrogation.  The court refused to adopt such a per se rule but concluded that the exclusion of a parent was a factor to be considered in determining under the totality of the circumstances whether the waiver was knowing and voluntary.

In analyzing the facts present here, the court considered the police conduct in excluding Andre’s mom from the interrogation as cutting against voluntariness.    The court recognized that there may be some circumstances that would justify the exclusion of a parent such as a disruptive or threatening parent or where there are allegations against the parent.

The court asserted that in cases where the police fail to establish a good reason for excluding the parent from the interrogation, a strong inference arises that the police were trying to maintain a “coercive atmosphere or to discourage the juvenile  from fully understanding and exercising his constitutional rights.”

The Court concluded that the police failed to establish any justification for the exclusion of Andre’s mom, thus, the confession should have been excluded.   

Under the Fifth Amendment to the United States Constitution, no person can be compelled to give incriminating evidence against them self.  As a general matter, before a person can be questioned by a government actor concerning conduct which is criminal in nature, they must be given Miranda warnings.  These warnings are to overcome the “police dominated” atmosphere that exists when law enforcement officers question a person who is in police custody.  This section will examine a student’s right to be warned of his or her right to remain silent and his or her right to legal counsel before being questioned about a matter which has criminal implications.

In a case decided this year by the Supreme Court of Pennsylvania, the court made clear that if a student is questioned by “school police officers” who are empowered by court order with the same powers as municipal police, then Miranda  warnings must be given before the student is questioned.^iv

In R.H., the sheriff notified the school district that a breaking and entering, vandalism and graffiti had occurred in one of its schools.  Officers investigating this matter found a small footprint in the residue from a fire extinguisher that had been set off during this crime.  School police officers investigating the case obtained a list of students who had classes in the classroom where the vandalism took place.  The officers looked for students of small stature that would have small feet.  The officers developed R.H. as a suspect because he was small, had classes in that room and had prior disciplinary issues for unruly behavior. 

During the school day, the officers went to the classroom and took R.H. to the main building of the school.  R.H. was asked to remove his shoes so that a shoeprint comparison could be made.  The officer concluded that the shoeprint matched.  The officer then questioned R.H. for 25 minutes, without giving him Miranda warnings until he admitted he was involved in the break-in.  R.H. was not allowed to leave during the questioning. 

The Superior Court ruled that the school police officer was a “school official” and thus did not have to give Miranda warnings.  On appeal, the Supreme Court of Pennsylvania overturned the trial court’s ruling.  The Supreme Court concluded that the school police officer was in fact a police officer for Miranda purposes.  The court reasoned that the officer had been empowered by court order to exercise the same powers as a municipal police officer; he wore a uniform and a badge; and the custodial interrogation ended in criminal charges, not simply violation of school rules.  The court concluded that the school police officers were “law enforcement officers” for Miranda purposes, thus R.H. should have been given Miranda warnings.

R.H. seems distinguishable from the decision issued by the Superior Court of Pennsylvania in In re D.E.M.^v  In the D.E.M. case, a police officer reported to a principal that the police had received an anonymous tip that D.E.M. had a gun at school.  After the police officer left the school premises, the principal called D.E.M. to the office.  D.E.M. was questioned and searched.  During the search D.E.M. agreed to empty his pockets revealing a “sheathed knife.”  The principal asked D.E.M. if he had a gun, at which time he reported that the gun was in his jacket pocket that was stored in another student’s locker.  At a subsequent trial D.E.M. sought to suppress the evidence.

The Superior Court held that the school principal had not acted as an agent of the police since the police did not coerce, dominate or direct the action taken by the principal in this investigation.  Since the principal was acting as a school official and not an agent of the police, the principal did not have to establish reasonable suspicion before stopping D.E.M. and questioning him.  The court reasoned that to require reasonable suspicion under these circumstances would destroy the informality of the teacher/student relationship.  The court emphasized that teachers must be able to immediately address the type of rumor presented here for the safety of all students.

Finally the court concluded that Miranda warnings need not be given by school officials:

In G.J. v. State of Indiana^vi, the Court of Appeals of Indiana concluded that questioning of a student by a dean, was not the type of coercive atmosphere giving rise to the necessity of Miranda warnings.    G.J. was found to be in possession of a vial of crack cocaine following an interrogation by Dean Jones in school.  At trial G.J. sought to have the vial suppressed as the fruit of a poisonous interrogation.  The trial court refused to suppress the evidence, leading to this appeal.  The appellate court citing a previous decision concluded: “In the case at hand, as in S.A. there was no coercive atmosphere to protect against, and G.J. was not in police custody when he was questioned.  Moreover, like S.A., G.J. was questioned in his school by a school official, not a police officer.  Thus analogous to our finding in S.A.we find that the Miranda safeguards are inapplicable here.”  See also, In re E.M., 634 N.E. 2d 395 (Ill. App. Ct. 2d 1994) (holding dean was not required to give Miranda warnings to student before questioning student about theft of jacket, where dean was acting independently of police),  In re Corey L., 203 Cal. App. 3d 1020 (Cal. Ct. of App.  1988) (holding principal was not required to give Miranda warnings before questioning student in connection with suspected possession of cocaine).

Involvement of a Police Officer does Not Always Mean there was an Interrogation

Florida v. J.T.D.^vii

J.T.D. was brought to the  principal’s office following a complaint that he had inappropriately touched the breast and buttocks of a female student.  He was questioned twice by the assistant principal in the presence of the principal.  During the second interview, Officer Williams of the St. Petersburg Florida Police Department was also present at the assistant principal’s request.  The presence of the school resource officer was the practice of the school where an investigation into school violations may also be criminal.

During the second interview, J.T.D. admitted to the assistant principal that he had touched the other student’s dress and “butt.”  At that point, the assistant principal turned the questioning over to Officer Williams, who immediately began giving J.T.D. his Miranda warnings.

The warnings were interrupted when Officer Williams had to leave for another problem that developed in the school.  The court, in its review noted that the investigations by the assistant principal and that conducted by Officer Williams were separate.  Officer Williams testified that she had not in any way threatened J.T.D. with confinement during the interview, though she acknowledged that she had, in the past, informed J.T.D. that she had the power to send him to juvenile confinement. 

In overturning the trial court’s suppression of J.T.D.’s statement, the court concluded that the assistant principal was not an agent of law enforcement.  In addition, Officer Williams had testified that she was merely present during the interview and in fact, had to step out several times during the interview.  Further Officer Williams did not ask any questions during this interview. 

The court also view J.T.D.’s interview from the standpoint of custody.  Clearly, a person who is not in custody is not entitled to Miranda warnings, even when the police conduct the questioning. 

In determining custody for Miranda purposes a court will look to several factors:

• The manner in which the police summon the subject for questioning.
• The purpose, place, and manner of the interrogation.
• The extent to which the suspect is confronted with evidence suggestive of his guilt; and
• Whether the suspect is informed that he is free to leave the place of questioning.

Here, J.T.D. was summoned by the assistant principal, not a police officer.  J.T.D. was summoned for the purpose of questioning him about a school infraction and not a crime.  The interview took place in a principal’s office, not a police station or jail.  Finally, the principal, assistant principal and a police officer were present, but only the school officials conducted questioning and not the officer.

The court concluded that J.T.D. was simply not in custody for purposes of Miranda and therefore was not entitled to any warnings.  As such, his admission, that he had touched the female’s dress and “butt” could be used against him in the delinquency hearing.

In the Matter of V.P.^viii In the V.P. a school district police officer, Lance Cox was approached by a student who reported that V.P. had brought a gun to school.  The student had carried the gun in her backpack on the bus for V.P.  Officer Cox, accompanied by a hall monitor Williams, took V.P. from his class and brought him to the assistant principal, Mr. Trevino.  Trevino questioned V.P. for a period of 30-40 minutes during which V.P. asked for his lawyer. V.P. finally told Trevino where the gun was. Following the confession, V.P. was arrested by Officer Cox and subsequently found delinquent.  On appeal, V.P. challenged the admission of his confession which was made without his being warned of his rights under Miranda.

In its review of the case, the court emphasized Officer Cox’ limited involvement in the questioning of V.P.  Cox had left Trevino’s office 3 to 4 minutes after bringing V.P. to the office.  Cox\did not brief Trevino in how to conduct the questioning.  Trevino and Cox testified that their usual practice is to allow the school officials to conduct the investigation and only turn it over to Cox after it is clear that a violation of law exists.  The court found that while V.P. may have been in some form of custody, it was not the type of “police” custody that requires Miranda warnings. The court noted: “Appellant cites no Texas cases, and we have been unable to find any, that support his contention that the questioning performed by Trevino, a school official seeing information in furtherance of his duty to protect the safety and well-being of students and faculty at the school, amounted to custodial interrogation and required Trevino to cease his questioning when appellant asked to speak to his lawyer.  The court concluded that the confession was valid under these circumstances.

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