State v. N. J. D. A.

                                       26

           Submitted August 20, 2021, affirmed September 28, 2022


                     In the Matter of N. J. D. A.,
                               a Youth.
                        STATE OF OREGON,
                             Respondent,
                                  v.
                             N. J. D. A.,
                              Appellant.
                    Yamhill County Circuit Court
                         18JU05100; A171701
                                   

    After youth started a fire that killed his father, youth was adjudicated for
acts that, if committed by an adult, would constitute murder, first-degree arson,
and first-degree aggravated theft. On appeal, youth challenges the juvenile
court’s denial of youth’s motion to suppress statements that youth made to a law
enforcement officer the day after the fire. The statements were made in response
to the officer questioning youth in his friend’s yard, with youth’s mother present,
at a time when youth was not a suspect. The encounter lasted no more than
10 minutes. Youth argues that the officer interrogated him in compelling circumstances without Miranda warnings, in violation of Article I, section 12, of
the Oregon Constitution. Held: The juvenile court did not err by denying youth’s
motion to suppress. Based on the totality of the circumstances—including the
location of the encounter, its length, the amount of pressure exerted on the youth,
and the youth’s ability to terminate the encounter—the circumstances were not
“compelling” so as to compel youth to testify against himself, and Miranda warnings therefore were not required.
    Affirmed.



    Cynthia L. Easterday, Judge.
    Christa Obold Eshleman filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and James, Judge, and
Aoyagi, Judge.
    AOYAGI, J.
    Affirmed.
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          AOYAGI, J.
         Youth was adjudicated for acts that, if committed
by an adult, would constitute two counts of murder, ORS
163.115, two counts of first-degree arson, ORS 164.325, and
one count of first-degree aggravated theft, ORS 164.057.
Before trial, youth moved to suppress statements that he
made to a law enforcement officer shortly after the crimes,
arguing that the officer questioned him in compelling circumstances and failed to give him Miranda warnings before
doing so, in violation of Article I, section 12, of the Oregon
Constitution. The sole issue before us on appeal is whether
the juvenile court erred in denying suppression. We conclude
that it did not and therefore affirm.
                                 FACTS
          We review the denial of a motion to suppress for
errors of law. State v. D. P., 

, 

 (2013). We defer to the juvenile court’s factual findings
if there is evidence in the record to support them. 

 Where
the juvenile court did not make express findings, we presume that it found the facts in a manner consistent with its
ultimate conclusion. 

 We state the facts accordingly.
         Youth, aged 14, lived with his parents in Willamina.1
Late on the night of June 12, 2018, or in the early hours of
June 13, 2018, more than $10,000 was removed from youth’s
parents’ safe, and the house was set on fire. Youth’s father
died in the fire.
         Youth’s mother did not know initially whether youth
had escaped the fire. She and law enforcement searched for
him at the home but did not find him. Around noon on the
day after the fire, youth’s mother returned to the home after
receiving medical treatment for her injuries, and she told
Sergeant Whitlow that she knew where youth was: J’s house.
J was someone with whom youth spent a lot of time, and
youth was very familiar with J’s family and felt comfortable
at J’s house. Whitlow and youth’s mother drove together to
J’s house in Whitlow’s patrol vehicle. It was approximately a
mile from youth’s home. When they arrived, they followed a
    1
      Youth was adopted by his biological grandmother and her husband. We use
their adoptive titles—mother, father, and parents.
28                                                     State v. N. J. D. A.

sign on the front door directing visitors to use the back door.
They knocked on the back door, and J answered it. Youth’s
mother asked if youth was there. J stepped away from the
door, and youth came outside, without any verbal directives
from Whitlow.

         Youth told his mother that he did not want to talk to
the police. His mother replied that they were going to question everybody. Whitlow did not hear that exchange.

         Youth and Whitlow stepped to the side of the house
for privacy to talk, “probably” at Whitlow’s request, because
there were “quite a few folks” in the house. Whitlow was
dressed in uniform and had a firearm in his holster. No
other officers were present, and Whitlow did not consider
youth a suspect at the time. Youth’s mother remained present and within earshot for the entire conversation,2 and she
was attentive to youth while he talked to Whitlow. Youth
and Whitlow stood a “couple of feet” apart (what Whitlow
described as a “casual distance”). They maintained a consistent distance throughout the conversation. Whitlow did not
direct youth to stand against a wall or a tree. Youth was not
arrested, handcuffed, or detained. Whitlow never touched
youth. Whitlow did not perceive any indication that youth
was reluctant to speak to him, or that youth was in any
kind of physical, emotional, or mental discomfort. Whitlow
does not recall youth ever saying that he was scared or
nervous, although Whitlow assumed that he probably was,
as that would be “natural” for someone who had “been
through a traumatic experience” and was talking to a police
officer.

        Whitlow asked youth if he was okay, and youth said
that he was. Whitlow told youth that he “had been at fire
scenes before and usually [he] would have expected somebody to still be there.” Youth said that he ran all the way
to J’s house. Whitlow asked why he did not stay. Youth
responded, “My life is worth more than theirs.”

      2
        The witnesses gave differing testimony as to where exactly youth’s mother
was standing, and the juvenile court did not make any findings on that issue, but
it is undisputed that mother was standing close enough to hear and was, at most,
15 to 20 feet away.
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          Whitlow then asked youth how he became aware of
the fire. Youth said that he was awake and saw light under
the bottom of his bedroom door, so he opened the door and
saw the fire. He got dressed and exited through the window.
         Noticing a small scab on youth’s forehead, Whitlow
asked what had caused it. Youth said that he burned himself while “smoking grass.” Whitlow asked if he meant marijuana. Youth said he meant actual grass and pointed at the
lawn. Whitlow replied that he “didn’t hardly believe that
because [he] never heard anything like that before.” Youth
pulled some grass from the lawn and said he rolled it up and
smoked it. Whitlow asked how he lit it, and youth said with
a magnifying glass. Whitlow told youth that it looked more
like a cigarette burn to him.
          Returning to the topic of the fire, Whitlow asked
youth why he did not wake up his parents. Before youth could
answer, youth’s mother interjected, telling Whitlow that
“that was enough conversation with him for now.” Youths’
mother interjected because she felt that Whitlow’s voice was
getting raised, and she told Whitlow that she felt that he
was beginning to interrogate youth. Whitlow told her that
what youth was saying did not make sense to him and that
he was trying to get to the bottom of what happened. She
responded that youth was scared and had been through a lot
and that Whitlow could talk with him more later. Whitlow
immediately ended the conversation, and youth went back
into J’s house. Nothing about youth’s demeanor or responses
had caused Whitlow to believe that youth had any comprehension deficits, and he perceived youth to have conducted
himself in an age-appropriate manner. In total, the encounter between Whitlow and youth lasted “ten minutes at the
most.”
         Before trial, youth moved to suppress his statements
to Whitlow, arguing that the circumstances were compelling, such that Whitlow should have given him Miranda
warnings before questioning him. The juvenile court held a
suppression hearing, at which Whitlow and youth’s mother
testified to the historical facts already described. Youth also
offered into evidence a report on a psychological evaluation
of youth.
30                                         State v. N. J. D. A.

         The report noted at the outset that the psychological evaluation was complicated by conflicting factual information and by youth’s “unique history,” which included “a
strikingly unconventional childhood in which [youth] was
largely isolated from peers and exposed to adults with
oddly paranoid world views.” Diagnosing him was therefore
“exceedingly challenging.” The report proceeded to describe
youth as “an uncommonly intelligent child who learns
quickly” but is “unusually underdeveloped with respect to
his emotional and interpersonal maturation.” He has “some
unusual strengths (verbal comprehension, concrete reasoning, visual motor processing) and weakness [sic] (pattern
recognition, visual-spatial processing),” such that he performs better than his peers on verbal tasks, and performs
concrete functions better than average, but may have problems with abstract reasoning. Youth “processes information
exceptionally quickly.” He is “very unusual” interpersonally,
however, and “presents and operates more like an 8-year-old than a 14-year-old, evidencing a naivete about how the
world functions that is uncommon.” At the same time, “[i]n
many ways he appears strikingly normal and well adjusted,
especially considering his unusual childhood.” Ultimately,
the evaluator diagnosed youth with autism spectrum disorder—a diagnosis that both youth and his mother “adamantly denied” (in the court’s words)—as well as posttraumatic stress disorder, multiple phobias, and cannabis use
disorder.
         The juvenile court denied the motion to suppress.
The court indicated that it was not a close case, stated that
the core question was whether youth’s circumstances while
talking with Whitlow were “compelling and custody-like,”
and concluded that they were not. In reaching that conclusion, the court considered both the specific nature and circumstances of the conversation with Whitlow and youth’s
psychological evaluation. As to the latter, the court called
attention to youth’s intelligence and strong processing
skills, while also recognizing that he is “unsophisticated,”
presents “more like an eight-year-old than a 14-year-old as
far as naivete and how the world functions,” and might be
on the autism spectrum. The court observed that an autism
diagnosis would not be dispositive, as “there are a lot of very
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successful people that have autism spectrum disorder.” The
court also noted that youth “does not evidence any significant behavior problems, is in fact compliant, seemingly
eager to form interpersonal connections with adults, an
intelligent child, good vocabulary, learns quickly, responds
well to warmth and positive regard, and he’s done exceptionally well it says in detention.” Ultimately, considering
the totality of the circumstances, and taking into account
youth’s age and maturity, the court concluded that youth
was not in compelling circumstances, so no Miranda warnings were required before Whitlow questioned him outside
J’s house.
         The juvenile court proceeded to adjudicate youth.
Youth appeals the resulting judgment, challenging the
denial of his motion to suppress.
                         ANALYSIS
          Article I, section 12, of the Oregon Constitution provides that “[n]o person shall be … compelled in any criminal
prosecution to testify against himself.” To protect that right
against compelled self-incrimination, the Supreme Court
“has held that, before questioning, police must give Miranda
warnings to a person who is in full custody or in circumstances that create a setting which judges would and officers
should recognize to be compelling.” State v. Roble-Baker, 

, 

 (2006) (internal quotation marks
omitted); see also State v. Moore/Coen, 

, 

 (2010), cert den, 

 (2011) (“In Oregon,
Article I, section 12, is an independent source for warnings
similar to those required under the Fifth Amendment to
the United States Constitution under Miranda v. Arizona,

, 

, 

 (1966).”). “[I]f an
officer fails to give the requisite Miranda warnings to a person who is in ‘full custody’ or in ‘compelling’ circumstances,
we must suppress the statements made in direct response
to unwarned questioning.” D. P., 

 (some
internal quotation marks omitted).
       It is undisputed that youth was not in custody
when he spoke to Whitlow at J’s house. The issue is whether
youth was nonetheless in compelling circumstances—i.e.,
32                                         State v. N. J. D. A.

circumstances that had the effect of “compelling” youth to
testify against himself—such that Whitlow was required to
give him Miranda warnings before asking him questions.
Once youth moved to suppress, it was the state’s burden to
prove that the circumstances were not compelling. Roble-Baker, 

.
         Deciding whether the circumstances were compelling requires considering the totality of the circumstances,
which “includes both the setting of the questioning and the
nature of the questions.” State v. Dunlap, 

,

 (2007). Our “overarching inquiry is whether
the officers created the sort of police-dominated atmosphere
that Miranda warnings were intended to counteract.” Roble-Baker, 

. We conduct that inquiry from the perspective of a reasonable person in youth’s position. Dunlap,

 (“Compelling circumstances exist when,
taking into account the totality of the circumstances, a reasonable person in the defendant’s position would feel compelled to answer a police officer’s questions.”). Specifically,
because youth is a child, we must determine “whether a
reasonable person in child’s position—that is, a child of
similar age, knowledge and experience, placed in a similar
environment—would have felt required to stay and answer
all of [the officer’s] questions.” State ex rel Juv. Dept. v.
Loredo, 

, 

 (1993). “An
interview that would not be ‘compelling’ for an adult might
nonetheless frighten a child into believing that he or she
was required to answer an officer’s questions.” 

.
         Circumstances relevant to the compelling-circumstances inquiry include the location of the encounter, its
length, the amount of pressure exerted on the defendant (or
youth), and the defendant’s (or youth’s) ability to terminate
the encounter. Roble-Baker, 

. In keeping
with the broad nature of the inquiry, those factors are nonexclusive, and they are not to be applied mechanically. 

.
         Regarding the location of the encounter between
youth and Whitlow, J’s home was a familiar place where youth
felt comfortable, as youth acknowledges. “[T]he fact that the
interview occurs in familiar surroundings diminishes the
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police-dominated atmosphere that Miranda warnings were
intended to counteract.” State v. Shaff, 

, 

 (2007). The interview also occurred in a place that
was not physically restrictive—outside, in the yard. Cf. D. P.,

 (treating the fact that the 12-year-old
youth was questioned in a school administrative office, with
a closed door, and his back to the door, as adding to the compelling circumstances).

          The presence of youth’s mother also made the circumstances less compelling than if youth had been alone
with Whitlow. See 

 (“Youth did not have anyone familiar
in the interview room within him, such as a parent, counselor, or teacher.”). Youth’s mother was not only present, but
she remained within earshot for the entire conversation, was
attentive to youth as he talked to Whitlow, and stopped the
interview as soon as she felt that it began shifting toward
interrogation.

         In terms of the length of the encounter between
youth and Whitlow, it was short, lasting no more than 10
minutes. When an encounter is short, the duration itself is
unlikely to contribute to compelling circumstances—see,
e.g., Shaff, 

 (10-minute encounter); Loredo, 

 (20-minute encounter)—although we note
that the duration necessary to contribute to compelling circumstances may be less for a child than an adult. Here, the
duration of the encounter weighs against compelling circumstances. That said, duration alone is almost never determinative, even for lengthy encounters. See Roble-Baker, 

 (treating duration of interview—“five or six
hours”—as contributing to compelling circumstances, but
not determinative); State v. Grimm, 

, 

, rev den, 

 (2018) (one and one-half hours
“is not an insignificant amount of time to undergo questioning by police officers,” but it is “not determinative of compelling circumstances”). Ultimately, “ ‘any consideration of the
durational factor is necessarily dependent on the character
or quality of the interaction’; thus, ‘the principle emphasis is
properly on the qualitative dynamics addressed in the third
and fourth of the Roble-Baker factors,’ ” Grimm, 

 (quoting State v. Northcutt, 

, 268
34                                         State v. N. J. D. A.

P3d 154 (2011)), i.e., “(3) the amount of pressure exerted on
the defendant; and (4) the defendant’s ability to terminate
the encounter,” 

 at 178 (quoting Roble-Baker, 

).
         We therefore next consider the amount of pressure
exerted on youth. “In considering the pressure on a suspect,
the focus of our inquiry is on the use of aggressive and coercive police interrogation practices, especially including, but
not limited to, those explicitly predicated on assumptions
of a suspect’s guilt or calculated to contradict a suspect’s
assertions of innocence.” State v. Mattheisen, 

, 

 (2015) (internal quotation marks
omitted); see also Shaff, 

 (“[W]hat matters is
not whether evidence of guilt was apparent to the suspect;
rather, it is whether the officers used that evidence in a coercive manner.”).
         In State v. Machain, 

, 

(2009), for example, the police exerted “significant” pressure
on a 15-year-old girl during a murder investigation, where
they told her that her account of events was inconsistent
with another suspect’s, told her that a polygrapher had been
summoned because the district attorney knew she had lied,
asked questions that assumed her guilt, suggested that
they were receiving information during the interview and
“either knew or would soon know ‘everything,’ ” and asked
“questions that delved into extremely personal, sensitive
topics.” Conversely, in Shaff, 

, the police
did not exert significant pressure on the defendant by asking him twice in 10 minutes whether he had assaulted a
woman, including once falsely implying that the woman had
reported an assault.
          Here, there is no evidence that Whitlow used
“aggressive and coercive police interrogation practices” in
talking with youth, including but not limited to asking
questions that were predicated on an assumption of youth’s
guilt or that were calculated to contradict assertions of
innocence. Mattheisen, 

. Whitlow did not
confront youth with any evidence that he was involved in
the fire, ask any questions that assumed that youth started
the fire, or contradict any assertions of innocence. Early in
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the conversation, Whitlow asked a single question as to why
youth had left the scene of the fire, referencing his own experience that people tend to stay at fire scenes. However, that
does not amount even to signaling that youth was a suspect,
let alone to confronting youth with evidence of guilt in an
aggressive and coercive manner. The comment explained
why Whitlow was asking the question. Whitlow also notably
did not say that innocent people typically stay at fire scenes
or that guilty people typically leave them. And nothing else
about Whitlow’s questioning was “aggressive and coercive,”

 so as to exert significant pressure on youth of a sort that
would contribute to compelling circumstances. Cf. D. P., 

 (citing “the repetitive and escalating nature”
of two detectives’ questions to a 12-year-old boy over the
course of an hour and forty minutes, “and the increasingly
coercive tactics used by the detectives,” as contributing to
compelling circumstances).

          As for youth’s ability to terminate the encounter,
another relevant consideration for compelling circumstances,
Whitlow never told youth that he was required to stay
or not free to leave. See Roble-Baker, 

(“[T]his court has held that compelling circumstances exist
when a police officer tells a defendant that he or she is not
free to leave the police station and terminate the encounter.”). On the other hand, Whitlow never explicitly told youth
that he was free to leave either—although, he obviously was,
in that the encounter ended as soon as youth’s mother voiced
a desire to terminate it. See 

 (“[W]hen a police officer tells
a defendant that he or she may terminate the encounter—
and then allows that defendant to do so—the officer has not
placed the defendant in compelling circumstances.”).

         Finally, youth points to the fact that Whitlow was
in uniform and carrying a holstered firearm. However, the
fact that an officer is in uniform and carrying a holstered
firearm has generally not been treated as making circumstances compelling. More often, it is the absence of a uniform and visible weapon that is notable, as making circumstances less compelling. See, e.g., D. P., 

(“[n]either detective wore a uniform or displayed his badge
or firearm”); Loredo, 

 (the officer “was
36                                           State v. N. J. D. A.

dressed in plain clothes and his gun was hidden from view
under his jacket”); but see also State v. Prickett, 

, 

 (1997) (suggesting that a “drawn gun”
would have made the circumstances more compelling).
         In sum, having considered all of the foregoing factors, we agree with the juvenile court that, under the totality
of the circumstances, youth was not in compelling circumstances so as to require Miranda warnings before Whitlow
questioned him outside J’s house. It follows that the juvenile
court did not err in denying the motion to suppress. In reaching that conclusion, we acknowledge that youth was 14 years
old at the time of the encounter, was unusually naïve for his
age, and had some social deficits. However, we disagree with
youth that his age or psychological profile rendered these
circumstances sufficiently compelling that youth was compelled to testify against himself, in violation of Article I, section 12. There is no question that the circumstances were
more compelling for youth than for an average adult, or for
some other youths, but they were not sufficiently compelling
to require Miranda warnings. We emphasize that we reach
that conclusion on the totality of the facts in this record and
that any change in those facts—such as if youth had been
alone with Whitlow, or if the encounter had taken place in
a less familiar or more restrictive setting—would present a
different case.
         Affirmed.