2017-0375, In re E.G.

substance he believed to be marijuana. a Budweiser box, saw a plastic sandwich bag containing a green leafy concern for polysubstance abuse,” Dion quickly scanned the room and, inside by another juvenile, later identified as his brother, R.D. “[O]ut of medical D.D., conscious, but sev erely intoxicated and vomiting. D.D. was being helped When Lieutenant Dion of the fire department arrived, he found a teenaged boy, dispatched to the D. family residence on a report of an incapacitated juvenile. February 10, 2017, the Londonderry police and fire departments were The trial court found or the record reflects the following facts. On

warnings. See Miranda v. Arizona, 384 U.S. 436 (1966). We affirm. to suppress statements given by him to the arresting officer without Miranda finding of delinquency, contending that the court erred in denying his motion LYNN, C.J. The juvenile, E.G., appeals the Circuit Court’s (Leonard, J.)

brief, and Eric S. Wolpin orally, for the juvenile. Christopher M. Johnson, chief appellate defender, of Concord, on the

attorney general, on the memorandum of law and or ally), for the State. Gordon J. MacDonald, attorney general (Sean R. Locke, assistant

No. 2017 - 0375 10th Circuit Court - Derry Family Division

http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh.us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as well 2

E.G.’s case had been screened and deemed inappropriate for diversion because alleged offen s es, E.G. was sixteen years old. The petitions also alleged that RSA 318 - B: p. 2 2 (2017). The delinquency petitions indicate that, at the time of the falsifying physical evidence, see RSA 641:6 (2016), and possession of drugs, see E.G. was petitioned as a delinquent for having committed the offenses of

the scene, he placed E.G. under arrest. after E.G’s admission, and on the advi ce of a third officer who had arrived on to Mottram, who found the marijuana under Mrs. G.’s car. Garcia testified that marijuana and throwing it under his mother’s vehicle. Garcia radioed outside marijuana whi ch was no longer there. E.G. then admitted to removing the Garcia then told them that Dion, a “neutral person,” had seen a bag of the juveniles about the marijuana smell and all three denied using marijuana. responded that D.D. had rapidly drunk half a bottle of vodka. Garcia asked Garcia asked the juveniles “to tell him what had ha ppened” and they

that preference to Garcia. to stay in the room, but it was not clear to the court whether Mrs. G. conveyed some point during his questioning.” Mrs. G. further testified that she wanted Mrs. G., however, testified that Garcia “asked her to step ou t of the room at questioning. Garcia testified that Mrs. G. was in the room the entire time. whether Mrs. G[.] remained in the bedroom for the duration of” the juveniles’ The court noted that there had been “conflicting testimony about

doorway or otherwise obstructing their ability to leave.” neither under arrest nor put in handcuffs, nor was Garcia “blocking the room while Garcia and Mrs. G. stood next to the bed. The juveniles were returned to D.D.’s bedroom. The three juveniles sat on one of the beds in the with them. Garcia, along with E.G., R.G., their mother (Mrs. G.), and R.D., mother, who was also at the D. residence, gave Garcia permission to speak “Mottram to tell [E.G.] and R.G. to come into the residence.” E.G’s and R.G.’s After D.D. was taken from the home by ambulance, Garcia asked

were not allowed to leave the scene.” “instructed [him] to make sure that the two juveniles outside, [E.G.] and R.G., marijuana and that a crime ha d occurred,” Garcia radioed to Mottram and longer there. “[B]elieving that the juveniles outside could have removed the Budweiser box. Garcia immediately looked in the box, but the bag was no marijuana. Dion told Garcia that he had seen a bag of marijuana in a Upon entering D.D.’s bedroom, Garcia immediately smelled burnt

arrived at the D. residence a minute later. went upstairs to D.D.’s bedroom. Officer Mottram of the police department bro ther, R.G., in the driveway near a vehicle. Garcia entered the residence and reached the scene. Outside the D. residence, Garcia observed E.G. and his Shortly after Dion’s arrival, Officer Garcia of the police department p. 3 3

that the defendant was, had b een or was about to be engaged in criminal seized; and (2) “at that time, [did] the officers possess[] a reasonable suspicion whether police conducted lawful investigatory stop: (1) when was the defendant v. Joyce, 1 59 N.H. 440, 444 (2009) (noting two - step inquiry for determining suspicion that one of the juveniles had engaged in criminal activity. See State learned that the bag observed by Dion was missing, he had reasonable E.G. was warranted because, once Garcia smelled burnt marijuana an d merely an investigatory stop. The State contends that Garcia’s detention of Miranda warnings were not required because the interaction at issue was We first address, however, a preliminary argument by the State that

E.G. co nstituted interrogation and that issue is not raised on appeal. notes, the trial court made no finding as to whether Garcia’s questioning of the trial court erred in finding that E.G. was not in custody. As the State 167 N.H. p. 3 338, 342 (2015). In this appeal, the only issue before us is whether must be ‘in custody’; and (2) [he] must be subject to ‘interrogation. ’” In re B.C., general rule, “before Miranda and Benoit warnings are required: (1) the suspect brackets omitted). As the foregoing implies, two conditions must be met, as a Miranda.” State v. McKenna, 166 N.H. 671, 676 (2014) (quotation and reasonable doubt, that it did not violate his constitutional rights under may be used as evidence against him, the State must prove, beyond a “Before the [juvenile’s] responses made during a custodial interrogation

(198 p. 3 3). federal law only to aid in our analysis. State v. Ball, 124 N.H. 226, 231 - 33 first address the defendant’s claim under the State Constitution and rely upon the Fifth and Fourteenth Amendments to the United States Constitu tion. We to Garcia under both Part I, Article 15 of the New Hampshire Constitution and when questioned by Garcia. He challenges the introduction of his statements motion to suppress because it wrongly de termined that he was not in custody On appeal, E.G. contends that the trial court erroneously denied his

of physical evidence, but found E.G. delinquent on the drug possession charge. presentation of evidence, the court dismissed the petition alleging falsification and brought it outside and threw it under the vehicle.” After the State’s testimony that E.G. “admitted that he had taken the marijuana out of the box adjudicatory hearing was held, at which the State introduced Garcia’s State v. Benoit, 126 N.H. 6 (1985). The trial court denie d the motion. An without having been informed of his rights in accordance with Miranda and contended that he had been subjected to custodial interrogation by Garcia obtained in violation of [his] rig ht against self - incrimination.” Specifically, he E.G. filed a motion to suppress, among other things, “all evidence

criminal mischief and reckless conduct.” several previous police contacts where he was involved in disturbances, E.G. was “being petitioned as a delinq uent for a felony level charge, and has p. 4 4

to leave, but not that he was under the functional equivalent of arrest”). stop, that “defendant could [have] reasonably conclude[d] that he was not free (noting, in determining that defendant was not in custo dy during investigatory Id. (quotations, citations, and ellipses omitted); cf. Turmel, 150 N.H. at 385

suspect’s shoes would have understood his situation. test: the only relevant inquiry is how a reasonable man in the circumstances surrounding the interrogation. This is an objec tive on freedom of movement, a court must examine all the a formal arrest. In assessing whether there was [such] a restraint or restraint on freedom of movement of the degree associated with The ultimate inquiry, however, is whether there was a formal arrest to distinguish between investigatory stops and “de facto arrests[.”] There is no scientifically precise formula that enables courts

93 (1st Cir. 2001). administration of Miranda warnings.” Un ited States v. Trueber, 238 F.3d 79, an otherwise valid Terry stop escalated into a de facto arrest necessitating the initial validity of Garcia’s detention of E.G., we must still determine “whether Berkemer v. McCarty, p. 4 468 U.S. 420, 441 (1984)). Thus, even granting the ‘subjected to restraints comparable to those of a formal arrest.’” Id. (quoting investigatory stop “mu st be advised of his Miranda rights if and when he is reasonable suspicion to conduct an investigatory stop, the subject of an Nevertheless, even assuming, without deciding, that Garcia had

(quotation omitted). warnings.” United States v. Streifel, 781 F.2d 953, 958 (1st Cir. 1986) police dominated or compelling atmosphere which necessitates Mirand a though inherently somewhat coercive, [they] do not usually involve the type of rule, Terry stops do not implicate the requirements of Miranda, because[,] . . . N.H. at 383. As explained by the First Circuit Court of Appeals, “[a]s a general purposes and, therefore, Miranda warnings are not triggered.” Turmel, 150 [s]uch temporary custody does not . . . constitute custody for Miranda investigatory, or Terry, stop is “‘seized’ in a Fourth Amendment sense[,] . . . We recognized, in State v. Turmel, that although the subject of an

which Miranda does not apply.” See Terry v. Ohio, 392 U.S. 1 (1968). argues, Garcia’s questioning “amounted to nothing more than a Terry stop, to information confirming or dispelling the officer’s suspicions”). Thus, the State a moderate number of questions to determine his identity and to try to obtain (noting that “[d]uring a legal investigatory stop, an officer may ask the detainee suspicion he had developed.” See State v. Turmel, 1 p. 5 50 N.H. 377, 383 (2003) scope of Garcia’s questioning was “limited . . . to confirming or dispelling the activity” (quotation and brackets omitted)). The State further asserts that the 5

manner, and was free to leave the room, if he so chose. unlike the situation in Miranda. [E.G.] was not restrained, in any “incommunicado” questioning in a “police - dominated atmosphere” time, and with her p ermission. He was therefore not subjected to the presence of his two friends and his mother, at least part of the his friend’s bedroom. He was questioned by one police officer in [E.G.] was questioned in the familiar and comfortable location of

In determining that E.G. was not in custody, the trial court reasoned:

the ultimate determination of custody de novo.” Id. fact “unless they are contrary to the manifest weight of the evidence, we review According ly, although we will not overturn the trial court’s findings of historical answer that question.” Id. at 63 (quoting Thompson, p. 5 516 U.S. at 114 - 15). omitted). “The trier of fact is not ‘in an appreciably better position’ than we to (1999) (quoting Thompson v. Keohane, 516 U.S. 99, 113 (1995)) (brackets add up to custody as defined in Miranda ?’” State v. Ford, 144 N.H. 57, 62 - 63 if encountered by a “reasonable person,” would the identified circumstances question entails an evaluation made after determination of the historical facts: determination “is a law - dominated mixed question in which ‘the crucial Our standard of review on appeal recognizes that the custody

(quotation omitted). and character, and the suspect’s familiarity with his surroundings.” Id. degree to which the suspect was physically restrained, the interview’s duration considered include, but are not limited to: “the number of officers present, the encounter.” McKenna, 166 N.H. at 677 (quotation omitted). Factors to be the trial court should consider the totality of the circumstances of the reasonable person in [a suspect’s] position would believe himself in custody, constitute custody for Miranda purposes”). “To determine whether a for investigat ory purposes,” and “[s]uch temporary custody does not, however, 1 p. 5 50 N.H. at 383 (observing that “[t]he police may temporarily detain a suspect understood the situation.” Id. at 676 - 77 (quotation omitted). B ut see Turmel, considering how a reasonable person in [E.G.’s] position would have determine whether [E.G.’s] freedom of movement was sufficientl y curtailed by that E.G. was not under arrest. “In the absence of formal arrest, we must Here, in a finding not challenged on appeal, the trial court determined

Part I, Article 1 p. 5 5, under that test. turn to the determination of whether E.G. was “in custody,” for purpos es of arrest.” McKenna, 1 p. 6 66 N.H. at 676 (quotation omitted). Accordingly, we now arrest or restraint on freedom of movement of the degree associated with formal that “[c]ustody entitling a [person] to Miranda protections requires formal custodial under P art I, Article 15, as that test also begins with the recognition i s the same test we use to determine whether any interaction with police is The “ultimate inquiry” identified in Trueber, 238 F.3d at 793, therefore, 6

than an adult in dealing with the police.” Id. at 15. Accordingly, in that case, child’s immaturity and inexperience place him or her at a greater disadvantage noted in Benoit that “[s]cholars, courts and legislators have recognized that a immature judgment.” Benoit, 12 p. 6 6 N.H. at 11 (citation omi tted). Moreover, we that special procedures are required to protect juveniles, who possess that a child does not possess the discretion and experience of an adult and Nevertheless, “[t] his State long has recognized the common - sense fact

interrogation. Id. at 342 - 43. determination — because B.C. was actually under formal arrest at the time of determine whether B.C.’s juvenile status would be a factor in that B.C.’s position would believe herself in custody — and the refore no reason to Id. We had no need, however, to determine whether a reasonable person in therefore, was more likely to feel coercive pressure as a result of her arrest.” case] was an adult, [B.C.] was fourteen years old at the time of her arrest, and, distinguishing a case cited by the State, that “while the arrestee in [the cited subject to police questioning. In re B.C., 1 p. 6 67 N.H. at 346. We observed, in noted, citing J.D.B. for support, a distinction between adults and juveniles juvenile status is a factor in the Miranda custody analysis. In In re B.C., we With respect to the State Constitution, we have not explicitly held that

concedes, citing J.D.B., that “[f]or j uveniles, age may also be a factor.” objective nature of that test.” J.D.B., 5 p. 6 64 U.S. at 277. Indeed, the State officer, its inclusion in the [Miranda] custody analysis is consistent with the of police question ing, or would have been objectively apparent to a reasonable Court held that “so long as the child’s age was known to the officer at the time J.D.B. v. North Carolina, 564 U.S. 261 (2011), the United States Supreme respect to his federal constitutional challenge, E.G. is certainly correct. In reasonable person standard is modified to take that fact into account”). W ith 2015) (noting that “[w]here, as here, the person questioned is a juvenile, the consideration of other factors. See In re D.L.H., Jr., 32 N.E.3d 1075, 1088 (Ill. influence the determination of the custody issue,” as it ha s relevance to our We first address E.G.’s argument that his “status as a juvenile must

authorization and presence of E.G.’s mother.” aggressive questioning, E.G.’s prior experience with law enforcement, and the the lack of physical restraint, the brief nature of the interview, the lack of presence of one officer, the presence of other non - law enforcement individuals, supported by the following factors: his “familiarity with his surroundings, the argues that the trial court’s determination that E.G. was n ot in custody is contact with [him], rather than he with them.” The State, on the other hand, terminate the interrogation; (4) he was a juvenile; and (5) “the police initiated was accusatory”; (3) he was at no point told that he was free to leave or to dominated atmosphere by controlling [his] movements”; (2) “the interrogation support the conclusion that he was in custody: (1) “the police created a police - E.G. challenges the tr ial court’s conclusion, arguing that the following factors p. 7 7

heavily in favor of custody, despit e the defendant’s familiarity with the further noted that the Mittel - Carey c ourt “explained that this factor weighed the most weight in its custody analysis.” McKenna, 166 N.H. at 6 p. 7 78. We defenda nt during the interrogation conducted at the defendant’s home carried Appeals “concluded that the level of control that the officers exercised over the Mittel - Carey, 493 F.3d 36 (1st Cir. 2007), in which the First Circuit Court of In McKenna, we cited with approval the analysis in United States v.

“contributed to the creation of a police - domin ated atmosphere.” we consider in our analysis. However, we disagree with E.G. that these actions go upstairs to D.D.’s bedroom in order to speak with Garcia is also a factor that The fact that Mottram summoned E.G. to come inside the residence and

E.G. and R.G. to be “seized.” that Mottram did tell them not to leave, and that this had the effect of causing in response t o Garcia’s instructions, we assume for purposes of our analysis failed to offer evidence as to what, if anything, Mottram said to E.G. and R.G. B ecause the State bore the burden of p roof at the suppression hearing and that Mottram “presumably” told the juveniles to remain on the premises. on the issue was Garcia’s affirmative response to the prosecut or’s suggestion and R.G. was ever communicated to the juveniles. In fact, the only testimony made no finding as to whether Garcia’s instruction to Mottram to detain E.G. Mottram told the boys to go into the D. residence. However, the trial court instructed him to not allow E.G. and R.G. to leave the scene and, thereafter, The trial court found that, when Mottram arrived on the scene, Garcia leave the sc ene, and later in ordering him into the house to speak with Garcia.” atmosphere by controlling [his] movements, both in first ordering him not to E.G. further contends that “the police created a police - dominated

status on the custody analysis. address in this case the effect, if any, of an officer’s lack of knowledge of such Garcia was unaware of E.G.’s status as a juvenile, we have no occasion to 15 of the New Hampshire Constitution. Because the State does not claim that is an appropriate factor to consider in the custody analysis under Part I, Article 2 p. 7 72. Accordingly, we now hold that a juvenile’s age at the time of questi oning to submit when a reasonable adult would feel free to go.” J.D.B., 564 U.S. at reasonable child subjected to police questioning will sometimes feel pressured of logic to conclude, as did the United States Supreme Court, that “a than adults in police encounters, Benoit, 126 N.H. at 15, it takes no great leap From Benoit ’s recognition that juveniles are at a “greater disadvantage”

145 N.H. p. 7 733, 737 (2001); see also Benoit, 126 N.H. at 15, 1 p. 8 8 - 19. under Part I, Article 15 of the New Hampshire Constitution. State v. Farrell, evaluating a juvenile’s purported waiver” of the fundamental rights guaranteed “[w]e adopted a comprehensive, fifteen - factor test for trial courts to use in 8

questions to determine his identity and to try to obtain information confirming legal investigatory stop, an officer may ask the detainee a moderate number of questioning that can lawfully occur during an investigat ory stop. “During a We consider the character of this exchange to be similar to the throwing it under his mother’s vehicle. [E.G.] then admitted to removing the marijuana from the room and now missing. [Garcia] asked ag ain where the marijuana was. [saw] a bag of marijuana in the bedroom, but the marijuana was Garcia told them that Lieutenant Dion who was a neutral person, marijuana and all three boys denied using marijuana. Officer bottle of vodka. Officer Gar cia asked [them] about the smell of and the juveniles told him D.D. had ... quickly consumed a ½

Officer Garcia asked the boys to tell him what had happened

E.G., R.G., and R.D. The trial court found the following facts regarding Garcia’s questioning of

questioning.” Id. at 6 p. 8 81. absence of both accusatory questions and accusatory statements made during custody.” Id. at 682. Thus, “[i]n our analysis, we consider the presence or questioning of a purely general nature, which supports a determination of no contrasting accusatory questioning, which weighs in favor of custody, with absence or presence of accusatory questioning in our analysis of custody, widely accepted approach, we have repeatedly recognized the importance of the finding of police custody.” McKenna, 166 N.H. at 681. “Consistent with this nature of qu estioning is widely recognized as a factor weighing in favor of a State contends that Garcia’s questioning was not accusatory. “The accusatory supported by the accusatory nature of Garcia’s questions and statements. T he E.G. next argues that a finding that he was in custody is further

limited natu re of that control. weigh in favor of a finding of custody, it does not weigh heavily due to the Accordingly, although the fact that Garcia exercised control over E.G. does and R.G. were joined in the bedroom by their mother and their friend. return to the bedroom of their friend’s house but did not es cort them, and E.G. significantly more control than here, where Mottram told E.G. and R.G. to bathroom.” Mittel - Carey, 493 F.3d at 40. Those facts demonstrate occasions that he was permitted to move, including while he used the allowed to speak to her alone; and he was escorted by agents on the three was told where to sit; he was physically separated from his girlfriend and not one - half to two hours, the defendant was “ordered to dress, go downstairs, and In Mittel - Carey, during an encounter with officers that lasted one and

Mittel - Carey is readily distinguishable from the present case. surroundings.” Id. However, the level of control that the officers exercised in p. 9 9

person is one whom the police suspect” (quotations, brackets, and ellipsis surrounding a crime”; nor are they required “simply because the questioned warnings are not required prior to “general on - the - scene questioning as to facts Podlaski v. Butterworth, 677 F.2d 8, p. 9 9 (1st Cir. 1982) (reasoning tha t Miranda Miranda warnings are necessary in all cases). The same is true here. See traffic stops do not exert sufficient pressure upon a detained person that providing Miranda warnings. See McCarty, 468 U.S. at 437 - 39 (reasoning that alcohol in an attempt to confirm or dispel the officer’s suspicion without investigatory stop, the officer is permit ted to ask the driver about his use of suspicion that another crime may have occurred, as part of the lawful thereafter develops a reasonable suspicion that the driver is intoxicated, i.e., a For example, i f an officer pulls over a vehicle for a traffic violation and about their knowledge of, or involvement in, the suspected criminal activity. and inves tigate d that potential crime scene by briefly asking the people present officer in the field develop ed a reasonable suspicion that a crime ha d occurred Neither of these cases involved a situation, such as here, where a police

hour. Id. at 674 - 75. drove to the defendant’s restaurant, and then questioned him for more than an at 674. Police officers investigated the report, obtained an arrest warrant, report that the defendant had committed a sexual assault. McKenna, 166 N.H. police station. Id. at 76 p. 9 9 - 7 1. Similarly, in McKenna, the police received a them to the police station, and questioned him in an interview room in the drove to the defendant’s residence, convinced the defendant to return with a sexual assault. Jennings, 155 N.H. at 769. The next day, police officers (2007), the police investigated an allegation that the defendant had committed weigh ed in favor of a finding of custody. In State v. Jennings, 155 N.H. 768 from cases in which we have found that the accusatory nature of questions T he circumstances of Garcia’s questioning are fundamentally different

investigatory stop, which does not require Miranda warnings. observations of Dion. This is consistent with the scope and purpose of a valid questioned the boys regarding his susp icions, his observations, and the burnt marijuana and Dion’s observations. Garcia detained and briefly the boys had committed the crime of drug possession based upon the smell of That is what happened here. Garcia had a suspicion that one or more of

last no longer than is necessary to effectuate its purpose.” Id. the officer’s particular suspicion.” Turmel, 150 N.H. at 383. “The stop must must be carefully tailored to its underlying justification — to confirm or to dispel that provoke suspicion.” (quotations omitted)). “The scope of the stop, however, crime, may detain that person briefly in order to investigate the circumstances that a particular person has committed, is committing, or is about to commit a lacks probable cause but whose observations lead him reasonably to suspect McCarty, 468 U.S. at 43 p. 9 9 (“Under the Fourth Amendment ... a policeman who or dispelling the officer’s suspicions.” Turmel, 150 N.H. at 383; see also p. 10 10

illegal.” 3 William E. Ringel, Search es & Seizures, Arrests and Confessions grounds existed to take the suspect into custody, custody would have been even after the interrogation the arrest was not made, and, as probably no information to take the suspect into cust ody before the interrogation, since custody because it “indicates to a court that police did not have sufficient conclusion of police questioning may be evidence that the defendant was not in finding of cust ody. The fact that a defendant is allowed to leave at the circumstances of this case, we disagree that this fact weighs in favor of a release of the interviewee at the end of the questioning”). Under the (2012) (noting, as factor relevant to Miranda custody determination, “the conclusion of police questioning. See, e. g., Howes v. Fields, 565 U.S. 499, 509 E.G. further points out that he was not allowed to leave even at the

Accordingly, this factor weighs slightly in favor of a finding of custody. they were not under arrest or that they did not have to an swer his questions. they were under arrest, E.G. is correct that Garcia also did not tell them that Although Garcia did not put the juveniles in handcuffs or tell them that

stop that he was not under arrest). See Turmel, 150 N.H. at 385 (noting that officer told defendant during T erry to leave because he was seized, in a Fourth Amendment sense, in a Terry stop. have considered such evidence even where the suspect was admittedly not free see also McKenna, 166 N.H. at 679 - 80 (citing Griffin for same proposition). We United States v. Griffin, 7 F.3d 1512, 1518 ( p. 10 10th Cir. 1993) (citations omitted);

detention. questions or free to leave is a significant indication of a custodial police advisement that the suspect is at liberty to decline to answer will often defines the custodial setting. Conversely, the lack of a free to refrain from answering questions or to end the interview at [T]he extent to which the suspect i s made aware that he or she is

was not under arrest or that he was free to terminate questioning. E.G. next notes that there is no evidence he was ever informed that he

finding of custody. directed at suspecte d criminal activity, does not weigh heavily in favor of a investigatory questioning”). In this context, questioning of this type, even if was in a home familiar to him, and “police activity was consistent with defendant was not in custody because he was not told he was under arrest, he and questioned them about drug possession. See id. (determining that briefly detained the people who had b een present at the potential crime scene was told that there had been a bag containing a leafy green substance. H e He smelled burnt marijuana and, although he did not personally observe it, he omitted)). Gar cia arrived at the scene to help the fire department, as needed. p. 11 11

own house, which was a familiar location). We note, however, that “the in custody, in part, because he was questioned on the back cellar steps of his the questioning); Podlaski, 677 F.2d at 9 (determining that defendant was not bedroom in her home and a relative entered the room on two occasions during was not in custody, in part, because she was questioned by officers in a States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001) (determining that defendant against a finding of custody.” McKenna, 166 N.H. at 685; s ee also United defendant’s familiarity with his surroundings, taken in isolation, often weighs familiarity with his surroundings weighs against a fin ding of custody. “[A] Turning to the State’s arguments, the State contends that E.G’s

favor of a finding of custody. police to the scene. Accordingly, w e conclude that this factor does not weigh in involve a police - initiated contact — that is, it is clear t hat someone called the would ask him questions, the record does make it clear that this case does not initiator of the contact, E.G. should have understood that the police likely would respond” (quotation omitted)). Thus, although we cannot say that, as an 9 p. 11 11, to which a reasonable person would expect both paramedics and police crime scene when, inter alia, he “initiated contact wi th authorities by calling state court decision finding applicant not in custody for Miranda purposes at 365998, at *19 (D. Colo. Feb. 2, 2012) (dismissing habeas corpus challenge to unresponsive”); see also Self v. Milyard, No. 11 - cv - 00502 - REB, 2012 WL having his roommate call 911 when he found [the allegedly abused child] Miranda purposes where, inter alia, he “initiated contact with authorities by 402 P.3d 91, 100 (Utah Ct. App. 2017) (finding defendant not in custody for that could be relevant to our custody determination. See State v. MacDon ald, regarding, who called the authorities for emergency assistance for D.D., a fact testimony did not clearly identify, and the trial court made no finding E.G. back into the residence for questi oning, the suppression hearing with the defendant.”). Here, although the record shows that Garcia summoned character of the interrogation is the fact that the police initiated the contact them.” See McKenna, 166 N.H. at 684 (“Also relevant to our assessment of the custody is that “the police initiated contact with [him], rather than he with The final factor E.G. argues in support of a finding that he was in

E.G. was in custody at the time he made the statements in question. conclusion of Garcia’s questioning does not factor into our analysis o f whether those statements. Accordingly, the fact that E.G. was arrested at the arrest whether Garcia would have taken E.G. into custody had E.G. not made decision to arrest E.G., we have no way of knowing from the fact of E.G.’s marijuana. Because Garcia was aware of these facts when he made the after his inculpatory statements and Mottram’s subsequent recovery of the defendant was in custody prior to those statements. Here, E.G. was arrested retrospectively determine from the fact of the defendant’s arrest whether the inculpatory statements that support his subsequent arrest, we cannot § 27:9, at 27 - 35 to 27 - 36 (2d ed. 20 p. 12 12). However, when a defendant makes 12

friends are nearby, their presence lending moral support.’” Cummings v. State, family and friends, contrasting it with his home where ‘his family and other interrogation as one where a suspec t may be deprived of the moral support of The factor apparently originates from Miranda ’s characterization of a “custodial weighing against a finding of custody. See In re D.L.H., Jr., 32 N.E.3d at 1088. Conversely, t he pr esence of friends or family has been considered a factor defendant certainly bolsters the trial court’s custody determination). (reasoning that “[t]he fact that three officers and a prosecutor went to meet the more likely that the defendant is in custody. See Jennings, 155 N.H. at 773 determination — when multiple officers isolate and question a defendant, it is The number of officers present is a relevant factor in a custody

prese nce of [his] mother.” additionally notes that E.G. was questioned with “the authorization and individuals” supported a finding that E.G. was not in custody. The State of multiple officers” and “the presence of other non - law enforcement The State also contends that “E.G. was not overwhelmed by th e presence

encounter weig hs against a finding of custody. (quotation omitted). O n balance, we conclude that here the brevity of the provides his interrogators the answers they seek.” Griffin, 922 F.2d at 1348 is of a sort where the detainee is aware that questioning will continue until he custody has been found in relatively brief interrogations where th e questioning obviously concerned with the ‘marathon’ routine of questioning a suspect, questioning lasted approximately ten minutes). “While Miranda was most State v. Johnson, 140 N.H. 576, 57 8 (1995) (finding no custody, in part, when 226 (2006) (finding no custody when interview lasted less than fifteen minutes); 922 F.2d 1343, 1348 (8th Cir. 1990); see also State v. Goupil, 154 N.H. 208, “undeterminative factor in the analysis of custody.” United States v. Griffin, against a finding of custody, the length of questioning can be a relatively that the questioning was not protracted. While, in general, this factor weighs the record evidence concerning the limited number of q uestions asked suggests court made no finding as to the length of either E.G.’s detention or questioning, that E.G. was not questioned for an extended period of time. Although the trial The State also cites, as a factor weighing against a finding of custody,

finding of custody. F.3d 428, 435 - 36 (1st Cir. 2011). On balance, this factor weighs against a station. See id. at 693 (Lynn, J., dissenting); United States v. Hughes, 640 was still a familiar location, and certainly a less custodial setting than a police less familiar with this location than he would have been at his own house, it Here, E.G. was questioned in his friend’s bedroom. While E.G. was likely

166 N.H. at 685 (quotation and brackets omitted). custody in his own home but not in custody at a polic e station.” McKenna, location of questioning is not, by itself, determinative: a defendant may be in p. 13 13

HIC KS, BASSETT, HANTZ MARCONI, a nd DONOVAN, JJ., con curred.

we reach the same result under the Federal Constitution. Miranda. See Turmel, 150 N.H. at 385; Terry, 392 U.S. at 20 - 29. Therefore, than does the State Constitution with regard to the defendant’s rights under The Federal Constitution offers the defendant no greater protection

ground that E.G. was in custody. violate E.G.’s Miranda rights, under the State Constitution, on the asserted conclude that the State established, beyond a reasonable doubt, that it did not custody. Accordingly, based up on the totality of the circumstances, we brief, on - scene detention and investigatory questioning does not amount to did Garcia restrain E.G. or tell him that he was under arrest. This type of Garcia did not tell E.G. that he was free to terminate the questioning, neither of his friend, br other, and, for at least part of the time, his mother. Although friend’s bedroom, where a single officer briefly questioned him in the presence The police told E.G., a juvenile, to go to the familiar location of his

made the incriminating statements to Garcia. See McKenna, 166 N.H. at 677. and therefore, that E.G. was not in custody for Miranda purposes when he juvenile in E.G.’s position would not have believed himself to be in custody, totality of the circumstances of the encounter, we conclude that a reasonable determination of custody de novo. Ford, 144 N.H. at 63. Considering the Having considered the parties’ arguments, we now review the ultimate

circumstances weigh in favor of a finding that E.G. was not in custody. deprived of the moral support of family and friends. Accordingly, these Jennings, 155 N.H. at 773. Only one officer questioned E.G., and E.G. was not like Jennings, where multip le officers isolated and questioned a defendant. See and his mother was present at least part of the time. This is not a situation, Garcia’s questioning, E.G.’s brother and friend were present the entire time, and he was not in the bedroom when Garcia questioned the boys. During not to leave and then to go upstairs — he did not escort them into the house, officer, Mottram, was present at the D. residence, he only told E.G. and R.G. Here, E.G. was questioned by only one officer, Garcia. Although another

450). 341 A.2d 294, 298 (Md. Ct. Spec. App. 1975) (quoting Mira nda, 384 U.S. at