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THE COURT OF APPEALS OF THE STATE OF ALASKA
J.R.N., )
) Court of Appeals No. A-3529
Appellant, ) Trial Court No. 3AN-S89-505CP
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1123 - April 12, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Suzanne Weller, Assistant
Public Defender, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
M. Hora, Office of Special Prosecutions and
Appeals, Anchorage, and Douglas B. Baily,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
BRYNER, Chief Judge.
Sixteen-year-old J.R.N. was arrested and charged as a
juvenile delinquent for conduct amounting to first-degree murder
and related offenses. The state petitioned for waiver of
children's court jurisdiction, seeking to have J.R.N. tried as an
adult. Following a hearing, Superior Court Judge Peter A.
Michalski issued a waiver order, finding that J.R.N. was not
amenable to treatment as a juvenile. J.R.N. appeals, contending,
in relevant part, that the court erred in failing to suppress a
confession obtained in violation of Alaska Delinquency Rule 7(b);
the rule requires the police to "immediately notify the parents"
of a juvenile's arrest. We reverse.
There is no dispute as to the relevant facts. At about
8:45 a.m. on October 6, 1989, Anchorage police officers arrested
J.R.N. and three juvenile companions in connection with a
homicide that occurred the prior day. They took the four
juveniles directly to the police station for questioning. At the
station, the police held J.R.N. in an interview room for
approximately four hours while they questioned J.R.N.'s
companions.
During this four-hour period, the police made no effort
to notify J.R.N.'s parents of the arrest. However, police
sergeant Michael A. Grimes did consult with an assistant district
attorney to determine the proper procedure for interrogating
juveniles. Grimes was advised that juveniles must be asked if
they want a parent notified or present but that parents need not
be notified in the absence of a request by the juvenile.
At approximately 1:00 p.m., Grimes began his
interrogation of J.R.N. He asked if J.R.N. wanted his parents
notified; J.R.N. said that he did not. Grimes advised J.R.N. of
his rights and, after securing a waiver, questioned him. J.R.N.
eventually admitted the homicide. At about 2:15 p.m., after
completion of the interrogation, J.R.N. agreed to assist the
police in locating the murder weapon. He accompanied the police
to the area where he had abandoned the gun, returning to the
station at approximately 3:40 p.m.
The police first asked J.R.N. for his parents' names
and telephone numbers at about 2:20 p.m. -- after completing his
interrogation but before leaving the station in search of the
murder weapon. They made no attempt to contact either parent,
however, until 4:00 p.m., after J.R.N. had returned to the
station. At that time, the police reached J.R.N.'s father, M.N.,
by telephone. M.N. came immediately to the station to speak with
J.R.N. M.N. had been available all day and would have come to
the station earlier had he been notified of J.R.N.'s arrest.
Prior to his waiver hearing, J.R.N. moved to suppress
his confession, arguing, among other things, that, pursuant to
Alaska Delinquency Rule 7(b), the police should have notified his
parents before subjecting him to interrogation.1 The superior
court denied J.R.N.'s motion. At the ensuing waiver hearing, the
state relied on J.R.N.'s statements and evidence derived
therefrom. On appeal from the superior court's waiver order,
J.R.N. renews the argument that his confession was obtained in
violation of Delinquency Rule 7(b).
At the time of J.R.N.'s arrest, Alaska Delinquency Rule
7(b) provided:
(b) Detention, Placement, Notification.
If a juvenile is arrested, the juvenile must
be taken immediately to a detention facility
or placement facility designated by the
Department or released pursuant to paragraph
(c) of this rule. The arresting officer
shall immediately notify the parents,
guardian and Department of the arrest and
detention or placement, and shall make and
retain a written record of the notification.
If the juvenile is arrested under
subparagraph (a)(3) of this rule, prompt
notification must also be given to the
Department of Law.
The express language of this provision commands "the
arresting officer" to "immediately notify the parents" of their
child's arrest. This language is obligatory, leaving little to
the arresting officer's discretion or the arrested juvenile's
preference.
Interpreting identical language in an analogous rule,
the Alaska Supreme Court has recently said, "`Immediately' means
just that." Copelin v. State, 659 P.2d 1206, 1211 (Alaska 1983),
accord Zsupnik v. State, 789 P.2d 357, 359 (Alaska 1990). As the
state has correctly conceded, J.R.N. was certainly under arrest
when he was placed in custody and taken to the police station for
questioning at 8:45 in the morning. See Zsupnik, 789 P.2d at
362. Under the plain language of Delinquency Rule 7(b), the duty
to notify J.R.N.'s parents of the arrest arose at that time.
J.R.N. nevertheless spent approximately five and one-half hours
in custody before the police even asked for his parents'
telephone numbers. Another hour and forty-five minutes elapsed
before the police actually contacted J.R.N.'s father.
During four of the seven-plus hours that elapsed
between arrest and parental notice, J.R.N. was simply held in
custody, awaiting interrogation. Thereafter, he was subjected to
custodial interrogation, taken on a search for the murder weapon,
and returned to the station. Only when the police had secured
all of the information that they desired from J.R.N. did they
attempt to notify his parents of the arrest. Under these
circumstances, the police conduct in J.R.N.'s case clearly
violated the plain language of Delinquency Rule 7(b).
Of course, the plain language of a rule or statute does
not invariably determine its meaning. Where, as here, the plain
language of a rule is clear and unambiguous, however, the party
asserting a different meaning "bears a correspondingly heavy
burden of demonstrating contrary legislative intent." Ward v.
State, 758 P.2d 87, 90 n.5 (Alaska 1988) (quoted in Zsupnik, 789
P.2d at 359). Here, the state makes no showing of a legislative
intent contrary to the plain meaning of Delinquency Rule 7(b).
Citing no particular authority, the state asserts that
the sole purpose of the rule's immediate parental notice
requirement is to let parents know where their children are.
However, the courts of other jurisdictions, construing provisions
similar to Delinquency Rule 7(b), have made it clear that a
fundamental purpose of immediate parental notice requirements is
to maximize the opportunity for parental presence during
custodial interrogation of juveniles. See, e.g., Ball v.
Ricketts, 779 F.2d 578, 581 (10th Cir. 1985); Holloway v.
Wainwright, 451 F.2d 149, 151 (5th Cir. 1971); People v. Maynes,
562 P.2d 756, 758 (Colo. 1977). These decisions lend strong
weight to the appropriateness of interpreting Delinquency Rule
7(b) in accordance with its plain meaning.
In keeping with such decisions, the Alaska Supreme
Court has noted that parental presence during custodial
interrogation of an arrested child can play a significant role in
protecting the child's legal rights and in assuring that the
child makes informed and intelligent decisions; the court has
specifically commented that "it is unquestionably a better
practice to see to it that a juvenile consults with an adult
before he waives his Miranda rights . . . ." Quick v. State, 599
P.2d 712, 719 (Alaska 1979). It hardly seems reasonable to
assume, as does the state, that furtherance of this policy was
not one of the concerns that led the supreme court to adopt
Delinquency Rule 7.
The importance of immediacy is also underscored by
recent amendments to Delinquency Rule 7(b). As it existed when
J.R.N. was arrested, Delinquency Rule 7(b) required immediate
notice of arrest to the juvenile's parents and the Department of
Health and Social Services. Effective January 15, 1991, the rule
was modified to require notice to the court as well as to the
parents and the Department. In amending the rule, the supreme
court relaxed the immediacy requirement somewhat with regard to
notification of both the Department and the court; the amended
rule requires the arresting officer to "notify the court and
Department immediately, if possible, and in no event more than
twelve hours later." (Emphasis added.) In contrast to the added
flexibility for notice to the court and the Department, however,
the amended rule leaves intact the original, unqualified
requirement that "[t]he arresting officer shall immediately
notify the parents or guardian of the arrest . . . ."2
Despite the lack of legislative history indicating that
Delinquency Rule 7(b) means anything other than its plain
language suggests, the state argues that literal application of
the immediate parental notice requirement would be disruptive and
might interfere with the ability of the police to perform their
investigative duties. According to the state, it is not
unreasonable for the police to question a juvenile suspect
immediately upon arrest and to defer parental notice until
questioning has been completed. The state's position, however,
runs directly counter to one of the apparent objectives of
Delinquency Rule 7(b), which, as we have noted, is to maximize
the opportunity for parental presence and participation before an
arrested juvenile is subjected to custodial interrogation.
It is further highly significant that the state
unsuccessfully relied on virtually the same argument in
attempting to convince the Alaska Supreme Court, in the context
of drunken driving prosecutions, that an arrestee should not be
given an opportunity to contact counsel or friends before
submitting to a post-arrest breath test, even though AS 12.25.150
expressly requires such an opportunity to be given "immediately
after an arrest . . . ." See Zsupnik, 789 P.2d at 359-60;
Copelin, 659 P.2d at 1212-14. Just as the supreme court rejected
the state's argument in drunken driving cases, so it must be
rejected here.
The record in this case reveals no conflict whatsoever
between the investigative needs of the police and the immediate
parental notice requirement of Delinquency Rule 7(b). To the
contrary, abundant time was available to notify J.R.N.'s parents
of their son's arrest. In fact, prior to J.R.N.'s custodial
interrogation, the police had ample time to contact the district
attorney's office to determine the proper procedure for
questioning J.R.N. It appears that, had they been advised to
contact J.R.N.'s parents, they would have done so. Under the
circumstances, the only apparent reason for J.R.N.'s arresting
officers to delay efforts to notify his parents was their
preference for interrogation without parental intervention.
Nor is it possible in this case to find substantial
compliance with Delinquency Rule 7(b) by virtue of the fact that
the police asked J.R.N. if he wanted to have his parents notified
of his arrest. Regardless of an arrested juvenile's wishes,
parents have a significant personal interest in securing for
their child the full measure of protection afforded under law.
Furthermore, because the immediate parental notice requirement is
founded on the assumption that an arrested juvenile may find it
difficult to make informed, intelligent choices and may benefit
from mature parental guidance, it would be paradoxical to leave
the threshold choice as to parental notice in the juvenile's
hands. Delinquency Rule 7(b) requires immediate parental notice
regardless of the wishes of the child. Violation of the
requirement is neither excused nor mitigated by the child's
expressed desire not to have parental notice given.
We therefore conclude that J.R.N.'s confession was
obtained in violation of Delinquency Rule 7(b). In reaching this
conclusion, we do not suggest that immediate parental notice is
an absolute requirement. The requirement must instead be applied
reasonably and with sufficient flexibility to accommodate the
legitimate police interest in prompt and thorough criminal
investigation. See, e.g., Copelin, 659 P.2d at 1211-12
(recognizing that a drunken driving arrestee's right to contact
counsel before submitting to a breath test is not absolute). Nor
do we suggest that Delinquency Rule 7(b) always precludes
custodial interrogation of an arrested juvenile without parental
notice, for we recognize that in some situations parents or
guardians will not be immediately available, and arresting
officers may have a compelling need to question an arrested
juvenile without delay. We hold only that an officer who arrests3
a juvenile must make a reasonable effort to notify the child's
parents as soon as practicable.
Having found a violation of Delinquency Rule 7(b), we
must separately consider whether that violation justifies the
suppression of evidence. Resolution of this question requires a
careful balancing of society's interest in deterring future
similar violations and its countervailing interest in the
prevention of crimes and the apprehension of criminals. See
State v. Sears, 553 P.2d 907, 912 (Alaska 1976).
In the present case, suppression of evidence would be
likely to have strong deterrent effect. The situation in this
case "involves a relatively static factual circumstance where the
object of police efforts is to obtain evidence of criminal
conduct." Id. at 52. See also Copelin, 659 P.2d at 1214. This
is not a situation akin to the hot pursuit of a fleeing felon, in
which split-second decisionmaking by an officer would not likely
be affected by the threat of suppression. State v. Sundberg, 611
P.2d 44, 52 (Alaska 1980).
Furthermore, the parental notice requirement, while not
in itself constitutionally compelled, is integrally related to
the constitutionally-based interest in assuring the voluntariness
of confessions. Scrupulous compliance with Delinquency Rule 7(b)
will have the effect of assuring that juveniles who have been
arrested are accorded fundamental fairness. As a corollary
benefit, adherence to the requirements of Delinquency Rule 7(b)
will also "conserve judicial resources which would otherwise be
expended in making difficult determinations of voluntariness . .
. ." Minnick v. Mississippi, _____ U.S. _____, 111 S.Ct. 486,
489 (1990).
Finally, unlike other situations, there appears to be
no alternative to suppression of evidence available to assure
compliance with Delinquency Rule 7(b). See, e.g., Zsupnik, 789
P.2d at 361 n.5 (citing AS 12.25.150(c), which provides criminal
penalties against officers who violate a prisoner's rights). The
state has cited no statute or rule under which other sanctions
could be imposed for violations of Delinquency Rule 7(b).
Without suppression as a remedy for violations, officers would
have little incentive to comply with the rule.
On balance, these considerations weigh heavily in favor
of suppression as the appropriate remedy for a violation of
Delinquency Rule 7(b). This balance is not altered in the
present case by the fact that the police acted in good faith,
based on advice received from the district attorney's office.
While Grimes' decision to obtain and follow the advice of the
district attorney's office is unquestionably commendable, the
duty to comply with the law is not restricted to the police, but
extends to other state officials as well. See, e.g., Lowry v.
State, 707 P.2d 280, 286 (Alaska App. 1985) (constitutional
constraints apply to private security guard acting as a state
agent). Here, the prosecutor who was consulted by Grimes shared
the responsibility for compliance with Delinquency Rule 7(b). It
would be ironic indeed to punish with suppression the mistakes of
police officers while excusing those of prosecutors who advise
them.
We thus hold that suppression of evidence is the
appropriate remedy for a violation of Delinquency Rule 7(b) and
that the superior court erred in denying J.R.N.'s motion to
suppress. Although we recognize that substantial independent
evidence was presented by the state in support of waiver, we are
unable to conclude that the improperly obtained evidence did not
appreciably affect the superior court's decision to waive
juvenile jurisdiction. Love v. State, 457 P.2d 622, 634 (Alaska
1969).
The order waiving juvenile jurisdiction is accordingly
REVERSED. This case is REMANDED for further proceedings in
conformity herewith.4
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. The state contends that J.R.N. did not raise this issue
below and is consequently precluded from arguing it on appeal.
The record does not support the state's contention. Although the
state is correct in pointing out that J.R.N.'s written motion to
suppress only challenged the general voluntariness of his
confession, J.R.N.'s counsel expressly raised the Delinquency
Rule violation as a ground for suppression during oral argument
before the superior court on the suppression motion:
Before I go into that specific area [the
general voluntariness of J.R.N.'s confession]
I would like to address one issue that came
up in Sergeant Grimes' testimony. And that
is he had testified -- and we weren't aware
of this -- that [the assistant district
attorney] had given him legal advice about
whether the parents had to be present and
about notifying the parents. Certainly it
isn't Sergeant Grimes' fault but we feel that
that was not correct advice. There's a
delinquency rule, Rule 7(b) of the
Delinquency Rules which were in effect at
that time which says that after a juvenile is
arrested the arresting officer shall
immediately notify the parents, guardian,
custodian. You know in accordance with the
Juvenile Rules the parents should have been
notified. He was kept for quite a long
period of time without the notification. And
I think that was on the advice [of] the
Department of Law that, well, he should be
given the opportunity if he is questioned or
the option, I think that Sergeant Grimes'
words, if he was questioned. So we don't
think that the rule was followed here and
that certainly bears on the decision of the
court. I think even perhaps as an
independent ground.
2. Delinquency Rule 7(b), as amended, provides:
(b) Detention, Placement, Notification.
If a juvenile is arrested, the juvenile must
be taken immediately to a detention facility
or placement facility designated by the
Department or released pursuant to paragraph
(c) of this rule. The arresting officer
shall immediately notify the parents or
guardian of the arrest and detention or
placement and shall notify the court and
Department immediately, if possible, and in
no event more than 12 hours later. The
arresting officer shall make and retain a
written record of the notification. If the
juvenile is arrested under subparagraph
(a)(3) of this rule, prompt notification must
also be given to the Department of Law.
3. By "arrest", we refer to the definition set out in AS
12.25.160: "Arrest is the taking of a person into custody in
order that the person may be held to answer for the commission of
a crime." See Zsupnik, 789 P.2d at 362.
4. In light of our decision reversing the superior court's
order waiving juvenile jurisdiction, we need not decide the other
issues raised by J.R.N.
