In re ZCB, No. 20030046.

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtVANDE WALLE, Chief Justice.
Citation669 N.W.2d 478,2003 ND 151
PartiesIn the Interest of Z.C.B., a Child. Brandi Sasse Russell, Petitioner and Appellee, v. Z.C.B., Child; C.B., Mother; J.B., Father, Respondents and Appellants.
Docket NumberNo. 20030046.
Decision Date23 September 2003

669 N.W.2d 478
2003 ND 151

In the Interest of Z.C.B., a Child.
Brandi Sasse Russell, Petitioner and Appellee,
v.
Z.C.B., Child; C.B., Mother; J.B., Father, Respondents and Appellants

No. 20030046.

Supreme Court of North Dakota.

September 23, 2003.


669 N.W.2d 480
Brandi Sasse Russell, Assistant State's Attorney, Bismarck, for petitioner and appellee

Jonathan R. Byers, Mandan, for respondents and appellants.

VANDE WALLE, Chief Justice.

[¶ 1] Z.C.B., J.B., and C.B. appealed a juvenile court order finding Z.C.B. committed the unruly act of minor in possession or consumption of alcohol while driving. We affirm.

I

[¶ 2] On October 31, 2002, Z.C.B., a minor, was driving with three friends when he was stopped by Mandan Patrol Sergeant Craig Johnson for a tinted windows violation. Officer Johnson approached the vehicle and smelled alcohol through its open window. He noticed all of the passengers were chewing gum and asked if any of them were twenty-one and if they had been drinking. They all said "no," but one passenger indicated "something was spilled on him."

[¶ 3] Officer Johnson asked Z.C.B. to get out of the vehicle, walk to the sidewalk, and dispose of his gum. Officer Johnson could still smell alcohol when Z.C.B. was outside the vehicle, but the odor was not as strong. Officer Johnson told Z.C.B. about the odor and asked him to be honest and tell him if he had been drinking. Z.C.B. stated he "had a sip." Z.C.B. was arrested and charged with being a minor in possession or consumption of alcohol while driving a motor vehicle in violation of N.D.C.C. §§ 5-01-08 and 39-06-01.1. No alcoholic beverages were found in the vehicle or on any of the passengers.

[¶ 4] At the juvenile court hearing, Officer Johnson was the only witness. The juvenile court found Z.C.B. committed the unruly act of minor in possession or consumption of alcohol while driving and placed him on formal probation. A notice of the violation was also to be sent to the Department of Transportation for administrative cancellation of Z.C.B.'s driver's license. The order was stayed pending this appeal.

II

[¶ 5] Section 27-20-56 of the North Dakota Century Code controls an

669 N.W.2d 481
appeal from a juvenile court order. In the Interest of T.S., 519 N.W.2d 301, 301 (N.D.1994). "This court's review of a juvenile court's order is similar to a trial de novo. We independently review the evidence, and our review is not limited to a determination of whether the juvenile court's findings are clearly erroneous." In the Interest of A.E., 1997 ND 9, ¶ 3, 559 N.W.2d 215 (citation omitted). On appeal, we review "the files, records, and minutes or transcript of the evidence of the juvenile court, giving appreciable weight to the findings of the juvenile court." N.D.C.C. § 27-20-56(1). Appreciable weight is given to the findings of the juvenile court because it "had the opportunity to hear the testimony and observe the demeanor of the witnesses." In the Interest of M.C.H., 2001 ND 205, ¶ 4, 637 N.W.2d 678

[¶ 6] Z.C.B. argues his statement to Officer Johnson should not have been admitted into evidence. He claims he was detained and interrogated without being advised of his Miranda rights and should not have been questioned without a parent present.

A.

[¶ 7] Miranda warnings must be given when a person is subjected to custodial interrogation. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). "[T]he person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The test for custodial interrogation is "how a reasonable man in the suspect's position would have understood his situation." Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); State v. Martin, 543 N.W.2d 224, 227 (N.D.1996). The degree of restraint and compulsion must be determined by evaluating the entire situation. Martin, at 227 (quoting State v. Berger, 329 N.W.2d 374, 377 (N.D.1983)).

[¶ 8] Routine traffic stops are generally not considered custodial situations. Pennsylvania v. Bruder, 488 U.S. 9, 10, 109 S.Ct. 205, 102 L.Ed.2d 172 (1988); Berkemer, 468 U.S. at 440, 104 S.Ct. 3138. In Berkemer, the United States Supreme Court determined Miranda warnings are generally not necessary during ordinary traffic stops because traffic stops are temporary and in public view. 468 U.S. at 437-38, 104 S.Ct. 3138; see also State v. Pitman, 427 N.W.2d 337, 342 (N.D.1988) (holding a statement made by a driver outside the patrol car was admissible as a response to a "general on-the-scene question clearly permissible under Miranda"). In Martin, this Court found a driver should reasonably expect to answer common sense investigatory questions after an automobile accident. 543 N.W.2d at 227-28. Furthermore, a suspect is not subject to custodial interrogation merely because an officer asks a question that may establish an element of the crime charged. Id. at 228. "Mere investigatory focus does not require the giving of the Miranda warnings." State v. Fields, 294 N.W.2d 404, 406 (N.D.1980) (applying a custody test to determine when Miranda warnings must be given); accord State v. Stewart, 1999 ND 154, ¶ 8 n. 4, 598 N.W.2d 773. Likewise, an officer's state of mind is not controlling, but one of many factors which, if made known to the person under interrogation, is used in determining whether a custodial interrogation has occurred. Martin, at 228 (citing Stansbury, 511 U.S. at 325, 114 S.Ct. 1526).

[¶ 9] In this case, Z.C.B. could reasonably expect to answer questions regarding

669 N.W.2d 482
alcohol consumption after being stopped while operating the vehicle. When an officer detects an odor of alcohol emanating from a vehicle, having a driver exit the vehicle and asking whether he has been drinking constitutes a common sense investigation and does not amount to custodial interrogation for Miranda purposes. See id.; see also Pennsylvania v. Mimms, 434 U.S. 106, 110 n. 6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (holding "that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment's proscription of unreasonable searches and seizures"). Furthermore, the mere fact the question regarded the consuming element of the offense of minor in consumption does not require a finding of custody. See Martin, 543 N.W.2d at 228

[¶ 10] Z.C.B. claims his statement to Officer Johnson should not have been admitted based on City of Fargo v. Wonder, 2002 ND 142, 651 N.W.2d 665. In Wonder, officers entered an apartment while investigating a loud party and asked partygoers who were under twenty-one to raise their hands. Wonder, at¶ 3. Wonder raised her hand and subsequently failed a breath test. Id. at ¶ 4. The trial court suppressed the evidence that Wonder raised her hand because her Miranda rights were violated. Id. at ¶ 6. The City conceded Wonder was in custody and contested whether an interrogation of the partygoers who were under twenty-one had occurred and, if so, whether the booking exception to Miranda applied. Id. at ¶¶ 10, 13. This Court found an interrogation had occurred and because "the questioning did not arise in a `booking' setting, was related to an element of the suspected crime, and was reasonably likely to elicit an incriminating response, the `booking exception' [did] not apply." Id. at ¶ 15. However, Wonder is distinguishable and does not assist Z.C.B. because he was not in custody, and Miranda only applies to custodial interrogation.

[¶ 11] Therefore, Officer Johnson was not required to advise Z.C.B. of his Miranda rights before asking him if he had been drinking because Z.C.B. was not in custody.

B.

[¶ 12] Z.C.B. contends he should not have been questioned without a parent present because minors are members of a special class that may require additional legal protection.

[¶ 13] A juvenile's right to be represented by his parent or guardian often arises in situations involving a juvenile's waiver of his right to counsel. E.g., In re R.D.B., 1998 ND 15, ¶ 6, 575 N.W.2d 420. A juvenile has a right to counsel at custodial...

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6 practice notes
  • Poitra v. North Dakota, Case No. 1:13–cv–096.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • January 7, 2015
    ...a juvenile has a right to counsel and made the statute consistent with constitutional law, limiting the right. Id. See also In re Z.C.B., 2003 ND 151, ¶ 15, 669 N.W.2d 478 (1995 amendment limited a juvenile's right to counsel under N.D.C.C. § 27–20–26 ).[¶ 25] In general, a criminal defenda......
  • In re H.K., No. 20090149.
    • United States
    • United States State Supreme Court of North Dakota
    • February 17, 2010
    ...similar to an information or a complaint in a criminal proceeding because it sets forth the charges against [the juvenile]." In re Z.C.B., 2003 ND 151, ¶ 23, 669 N.W.2d 478. A petition must "set forth plainly ... [t]he facts which bring the child within the jurisdiction of the court...." N.......
  • State v. Poitra, No. 20090339.
    • United States
    • United States State Supreme Court of North Dakota
    • July 13, 2010
    ...a right to counsel and made the statute consistent with constitutional785 N.W.2d 232law, limiting the right. Id. See also In re Z.C.B., 2003 ND 151, ¶ 15, 669 N.W.2d 478 (1995 amendment limited a juvenile's right to counsel under N.D.C.C. § 27-20-26). [¶ 25] In general, a criminal defendant......
  • State v. Genre, No. 20050238.
    • United States
    • United States State Supreme Court of North Dakota
    • April 19, 2006
    ...therefore, Genre could reasonably expect to answer investigatory questions regarding alcohol consumption. See In the Interest of Z.C.B., 2003 ND 151, ¶ 9, 669 N.W.2d 478. Deputy Kluth also saw an open can of beer and a rifle in the vehicle. Therefore, Genre could reasonably expect to answer......
  • Request a trial to view additional results
6 cases
  • Poitra v. North Dakota, Case No. 1:13–cv–096.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of North Dakota
    • January 7, 2015
    ...a juvenile has a right to counsel and made the statute consistent with constitutional law, limiting the right. Id. See also In re Z.C.B., 2003 ND 151, ¶ 15, 669 N.W.2d 478 (1995 amendment limited a juvenile's right to counsel under N.D.C.C. § 27–20–26 ).[¶ 25] In general, a criminal defenda......
  • In re H.K., No. 20090149.
    • United States
    • United States State Supreme Court of North Dakota
    • February 17, 2010
    ...similar to an information or a complaint in a criminal proceeding because it sets forth the charges against [the juvenile]." In re Z.C.B., 2003 ND 151, ¶ 23, 669 N.W.2d 478. A petition must "set forth plainly ... [t]he facts which bring the child within the jurisdiction of the court...." N.......
  • State v. Poitra, No. 20090339.
    • United States
    • United States State Supreme Court of North Dakota
    • July 13, 2010
    ...a right to counsel and made the statute consistent with constitutional785 N.W.2d 232law, limiting the right. Id. See also In re Z.C.B., 2003 ND 151, ¶ 15, 669 N.W.2d 478 (1995 amendment limited a juvenile's right to counsel under N.D.C.C. § 27-20-26). [¶ 25] In general, a criminal defendant......
  • State v. Genre, No. 20050238.
    • United States
    • United States State Supreme Court of North Dakota
    • April 19, 2006
    ...therefore, Genre could reasonably expect to answer investigatory questions regarding alcohol consumption. See In the Interest of Z.C.B., 2003 ND 151, ¶ 9, 669 N.W.2d 478. Deputy Kluth also saw an open can of beer and a rifle in the vehicle. Therefore, Genre could reasonably expect to answer......
  • Request a trial to view additional results

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