Miranda, please report to the principal's office.

• Author: Penrose, Meg

[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone. (1)

The age of an alleged criminal offender undoubtedly affects his or her ability to appreciate the consequences of confessing to criminal behavior. Courts have long accepted that youth and inexperience impact an individual's ability to make a voluntary confession. (2) Accordingly, this Article addresses whether Miranda v. Arizona--the seminal Fifth Amendment decision providing procedural rights to those enduring custodial interrogation (3)--should apply to students interrogated by school officials during school hours. (4) To answer this difficult question, this Article first provides a brief overview of the law of minors and confessions. Next, it considers the increasing law enforcement presence on our school campuses and evaluates how this presence affects the role of school officials. Finally, the high level of cooperation between law enforcement and school officials in criminal law enforcement is considered to determine whether Miranda should apply in the principal's office. (5)

1. MIRANDA'S APPLICABILITY TO JUVENILES

   The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way. (6) On at least five occasions, the United States Supreme Court has considered cases involving minors and confessions. (7) The Court's jurisprudence can be easily categorized into two main areas: cases involving Due Process or voluntariness challenges to confessions, and cases addressing purported Miranda violations in obtaining confessions. In both contexts, however, the Court has clearly indicated that there exists a distinction between minors and their adult counterparts in evaluating whether the confession should be utilized in criminal proceedings. As the Court emphasized in Gault, "admissions and confessions of juveniles require special caution." (8)

   Lowers courts, also, have distinguished between youthful offenders and their more senior peers. (9) These same courts, however, have increasingly been willing to broach the germane issue of who should be evaluated when assessing the voluntariness and admissibility of a minor's confession. (10) Under Miranda and its progeny, the consideration has been strictly limited to law enforcement ofricers--usually police officers. But, with the increased police presence in both public and private schools, courts must now address the relationship between school resource officers (SROs) (those police officers that are regularly scheduled to work at schools in both a school disciplinary and law enforcement capacity) and the teachers and principals who work in conjunction with SROs to maintain safety, order, and discipline on campuses.

   Lower courts have addressed this sensitive and synergistic relationship in the New Jersey v. T.L.O. search and seizure context, (11) but have not been as forthcoming in the confession arena where students need greater protection, (12) Just two years ago, Justice Breyer resurrected the concept of in loco parentis as it relates to the intersection of school discipline and school law enforcement. (13) Generally, the transition in modern times has been to move away from the more liberal approach taken in Tinker v. Des Moines (14) and toward an increasingly restrictive notion of students' rights in the overlapping criminal law and school discipline context. (15) Students may retain their Fourth Amendment rights, though somewhat diluted, but their Fifth Amendment rights more readily fall victim to the dual capacity of school official as part teacher, part state actor. (16) While courts recognize that school teachers and principals are cloaked with power as state actors in the Fourth Amendment scenario, their power as state actors in the Fifth Amendment context is murky, at best. Coupled with this fickle state actor role status is the dilemma that SROs continue to work in conjunction with school officials to question students for law enforcement purposes--not simply for school discipline purposes. (17)

   At this juncture our modern precedent proves increasingly deficient. School officials who question children in a custodial fashion, having pulled the child out of classes where they must otherwise be present, should not be able to shed their state actor status in order to extract a confession that will be used by law enforcement officers for criminal prosecution. (18) While school officials should remain entitled to question students for school disciplinary purposes, these disciplinary purposes frequently become subterfuges, if not pretext, for the quick referral of minors to the local police department and criminal prosecution. (19)

   Courts should take greater care in distinguishing the role of educators and SROs who engage in questioning of juveniles at schools. While school "custody" may differ from police station custody, courts must begin addressing whether school principal and SRO questioning is the functional equivalent of "custodial interrogation." (20) Let us now assess the nature of the relationship between school officials and their minor charges. If in loco parentis permits stricter discipline and more invasive searches, then courts should apply this same stringency to the questioning of minors and delimit the collaboration allowed between school officials and law enforcement when the confession of a minor is at issue. Either school officials are state actors for Constitutional purposes or they are not. If courts permit school officials and law enforcement to have it both ways, whereby principals may search as state actors yet question criminal suspects without being considered state actors, then the final vestiges of Tinker's promise that students do not shed their constitutional rights at the schoolhouse gate has vanished. (21)

2. THE STATUS OF THE LAW: APPLICATION OF THE TOTALITY OF THE CIRCUMSTANCES

   Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. (22) In many, if not most cases, courts have been reluctant to view school officials--even those individuals employed at schools as SROs--as state actors falling within the ambit of Miranda. Rather than considering the inherently coercive and custodial nature of the school setting, courts frequently focus only on whether a reasonable student would feel he or she was free to exit the interview. (23) It is naive to assume that an individual pulled involuntarily out of class would feel capable of exercising the right simply to return from where he or she was removed. This dogmatic application, while consistent with the literal Miranda "custody" requirement, (24) turns a blind eye to the reality that most students do not recognize, much less exert, an ability to rebuff the school official's inquisitorial advances. Thus, courts continue to take a constrained view of Miranda's applicability in schools by assessing, under the totality of the circumstances, whether a particular juvenile believed he or she was "in custody" while being questioned by school officials.

   A relevant, oft-cited opinion, is In re Killitz. (25) Decided in 1982, this opinion considered whether a junior high student's incriminating statements made to a police officer during a school interview violated Miranda. (26) At issue was whether the juvenile defendant had committed an off-campus burglary. (27) The principal summoned the student during school hours to the principal's office where an armed, uniformed police officer interviewed the student in the presence of the school principal. (28) Neither the school principal nor the officer informed the juvenile defendant that he was free to leave or disregard their questions. (29) Indeed, in finding that the juvenile was subjected to a custodial interrogation invoking the Miranda protections, the court emphasized that the defendant "was in school during regular hours, where his movements were controlled to a great extent by school personnel." (30) Further, that "defendant cannot be said to have come voluntarily to the place of questioning," because he would likely have been subjected to disciplinary actions had he refused the principal's command to come to his office bore mention by the court. (31) Based upon all these factors, the court found that the juvenile had been subjected to a custodial interrogation, precluding the admission of his incriminating statements in subsequent criminal proceedings. (32)

   Another significant opinion is In re G.S.P., from the Minnesota Court of Appeals. (33) G.S.P., a twelve-year-old, was accused of bringing a gun to school when his backpack was left behind in the locker room after a football game. (34) The following morning, G.S.P. was removed...