31 So.3d 1025 (La. 2010), 2009-KK-1178, State v. Bernard

Docket Nº:2009-KK-1178.
Citation:31 So.3d 1025, 2009-1178 La. 3/16/10
Opinion Judge:KNOLL, J.
Party Name:STATE of Louisiana v. Aaron BERNARD.
Attorney:James D. Caldwell, Attorney General, Hillar Clement Moore, III, District Attorney, Dylan Christopher Alge, Assistant District Attorney, for Applicant. Mark David Plaisance, Baker, Smith & Chatagnier, Jason L. Chatagnier, for Respondent.
Judge Panel:JOHNSON, J., concurs and assigns reasons. GUIDRY, J., concurs with reasons. JOHNSON, J., concurs and assigns reasons.
Case Date:March 16, 2010
Court:Supreme Court of Louisiana

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31 So.3d 1025 (La. 2010)

2009-1178 La. 3/16/10

STATE of Louisiana



No. 2009-KK-1178.

Supreme Court of Louisiana.

March 16, 2010

Page 1026

James D. Caldwell, Attorney General, Hillar Clement Moore, III, District Attorney, Dylan Christopher Alge, Assistant District Attorney, for Applicant.

Mark David Plaisance, Baker, Smith & Chatagnier, Jason L. Chatagnier, for Respondent.

KNOLL, J.[*]

[2009-1178 La. 1] This criminal writ concerns the issue of whether a child protection officer should have given " Miranda" warnings to the arrested and incarcerated defendant, Aaron Bernard, before she interviewed him. This problematic issue was raised by defendant

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in his pretrial motion to suppress certain incriminatory statements he made to Rosemarice Collins, a child protection officer with the Louisiana Office of Community Services (" OCS" ), based on her failure to advise him of his Constitutional rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We are called upon to weigh the delicate balance between the Constitutional rights of a defendant who has been taken into custody and the interest of both the State and the OCS in interrogating suspected child abusers.

While defendant was in prison awaiting trial,1 Collins interviewed him as part of an investigation of child abuse or neglect directed at his live-in girlfriend, Claudia. During the interview, which lasted approximately ten minutes, defendant admitted to [2009-1178 La. 2] Collins he had used cocaine. Defendant moved to suppress this inculpatory statement based on Collins' failure to advise him of his Miranda rights. The trial court granted the motion to suppress and the Court of Appeal affirmed. We granted the State's application for supervisory writ 2 and now reverse. For the reasons detailed below, we find there is no bright line rule for this determination, which must be made on a case-by-case basis. Under the circumstances of this case, the record evidence shows Collins was not acting as an " agent of law enforcement," and was not required to advise defendant of his Miranda rights prior to the interview.


Defendant shares a house in East Baton Rouge Parish with his girlfriend Claudia, her eleven year old daughter F.H., and defendant and Claudia's young son. The state alleges on September 5, 2006, defendant took Claudia and F.H. hostage after ingesting a large amount of cocaine. Defendant was arrested later that day after a lengthy standoff with the police.

At the end of the standoff, defendant injured himself in an apparent suicide attempt. He was taken to Earl K. Long Hospital and treated for his injuries, then brought to a nearby police station. The police read the Miranda rights and began an interrogation. Defendant gave a videotaped statement confessing to giving F.H. cocaine and engaging in oral and anal sex with her.3 Bond was set at $400,000, and he was brought to East Baton Rouge Parish Prison to await trial.

On September 22, 2006, Rosemarice Collins, an investigator for the child [2009-1178 La. 3] protection office of the Louisiana Office of Community Services (OCS), visited defendant in prison. Collins' office had received an anonymous call to its hotline regarding possible child abuse at defendant's household.4 Collins first interviewed

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defendant's girlfriend Claudia and her children, who informed her that defendant was also a member of the household. It is OCS policy to interview each member of the household in cases of alleged child abuse or neglect.

Collins testified the purpose of her interview with defendant was solely to determine whether action should be taken against Claudia, including possible termination of her parental rights. Collins' investigation was not directed at the criminal charges levied against defendant. Prior to the interview, Collins had not discussed defendant's case with the investigating officers or anyone at the District Attorney's office, nor did she read the police report regarding the September 5, 2006 incident. Significantly, Collins did not have any personal contact with police or prosecutors prior to the date of the interview.

Collins introduced herself and said she was conducting an investigation as to Claudia's fitness as a parent. Collins did not give defendant Miranda warnings prior to speaking with him, as it was not her department's practice to do so. Collins had never received any instruction regarding the Miranda rights. She did say the interview was voluntary and she would leave if he did not wish to speak to her. Defendant chose to answer her questions. During the interview he defended Claudia's fitness as a parent and said the alleged incidence of abuse (i.e., the events of September 5th) resulted solely from his own cocaine abuse.

[2009-1178 La. 4] Collins drafted a report, the primary purpose of which was to give a recommendation regarding whether Claudia's children were " children in need of care" and whether Claudia's parental rights should be terminated.5 The report included defendant's admission he had used cocaine. Collins was required by law to submit a copy of her report to the juvenile division of the East Baton Rouge Parish District Attorney's office. The juvenile division apparently passed it on to the criminal division and the attorneys prosecuting defendant. Collins never forwarded her report to the police, and she was not contacted by either the police or the District Attorney's office to conduct a follow-up investigation.


Defendant moved to suppress the contents of Collins' report. Collins was the sole witness to testify at the hearing. The trial court granted the motion, finding that because Collins was an " agent of the Sate of Louisiana" and defendant was " in custody," the Miranda rights should have been read prior to questioning.

The State applied for a supervisory writ, which was denied by the First Circuit Court of Appeals. This Court granted the State's writ in State v. Bernard, 2008-2569 (La.12/12/08), 997 So.2d 552, and remanded to the First Circuit for briefing and argument.

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[2009-1178 La. 5] The First Circuit affirmed, holding " defendant's incarceration in the East Baton Rouge Parish Prison clearly qualified him as being ‘ in custody’ " and that the " trial court did not abuse its discretion in determining Collins was a ‘ state actor.’ " State v. Bernard, 2008-1372 (La.App. 1 Cir. 5/8/09) 13 So.3d 611.


The sole issue in dispute is whether defendant's Constitutional right against compelled self-incrimination was violated when Collins did not read him his Miranda rights prior to their meeting. This issue hinges on two deceptively simple-sounding questions: who is required to give Miranda warnings, and in what circumstances are they required to give them?

This discussion necessarily starts with the central holding of Miranda itself:

Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: 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 of action in any significant way.

Miranda, 384 U.S. at 444, 86 S.Ct. 1602(emphasis added).

As this passage makes clear, Miranda only applies if three conditions are met: (1) the defendant is in " custody" or significantly deprived of freedom, (2) there is an " interrogation," and (3) the interrogation is conducted by a " law enforcement officer" or someone acting as their agent. After our careful review of the record, we find Collins was not acting as a law enforcement officer or as an agent of law enforcement, thus defendant's Constitutional rights under Miranda were not triggered prior to Collins' interview.

[2009-1178 La. 6] A. Miranda vis-à-vis State Employees

Defendant argues that, pursuant to State v. Maise, 2000-1141 (La.1/15/02) 805 So.2d 1141, all " state actors" who interview or interrogate a suspect must give Miranda warnings. Defendant further argues state employment is " generally sufficient to render the party a state actor." Maise, 805 So.2d at 1149.

In Maise, the defendant called a probation officer on the phone and confessed to raping a child. Id. at 1148. The defendant moved to suppress his confession based on the probation officer's failure to advise him of his rights. Defendant relies on this passage from Maise: " Miranda only applies where the party performing the ‘ interrogation’ is a ‘ state actor.’ " Id. at 1149, citing State v. Martin, 94-252 (La.App. 5 Cir. 10/12/94) 645 So.2d 752. The court went on to say " [S]tate employment is generally sufficient to render a party a state actor." Id. at 1149, quoting West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). We find that Maise is not controlling for two reasons.

First, the passage in Maise regarding " state actors" is obiter dicta and therefore not binding. This Court resolved Maise by holding that a conversation over the telephone does not constitute a " custodial interrogation," as there is no restraint on the defendant's freedom of movement. Id. at 1149-50. Because this finding was dispositive of defendant's Miranda claim, it was not necessary to determine whether the probation officer was a " state actor" or

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" law enforcement agent," and that discussion was mere...

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