Statutory Changes Related to Juvenile Interrogation and Secure Custody Orders by Jacquelyn Greene

This post covers recent statutory changes related to the custodial interrogation of youth who are 16 and 17 years of age and to the issuance and execution of secure custody orders in delinquency cases. All of these changes are contained in Session law 2023-114 and will apply to offenses committed on or after December 1, 2023.

Custodial Interrogation of 16- and 17-Year-Old Juveniles

Under current law, anyone under the age of 18 must be provided the following warnings before being questioned during a custodial interrogation:

• That the juvenile has a right to remain silent;
• That any statement the juvenile does make can be and may be used against the juvenile;
• That the juvenile has a right to have a parent, guardian, or custodian present during questioning; and
• That the juvenile has a right to consult with an attorney and that one will be appointed for the juvenile if the juvenile is not represented and wants representation. S. 7B-2101(a).

These warnings are required to protect the juvenile’s Fifth Amendment privilege against self-incrimination under Miranda v. Arizona, 384 U.S. 436 (1966), and they include an additional statutory right for juveniles to have a parent, guardian, or custodian present. For a full discussion of what constitutes custodial interrogation in the juvenile context and how courts have applied the rights contained in G.S. 7B-2101(a), see my Juvenile Law Bulletin on Juvenile Interrogation. S.L. 2023-114 makes a change to the right to have a parent, guardian, or custodian present. The change applies only to the custodial interrogation of juveniles who are 16- and 17-years-old (juveniles under the age of 16 cannot waive their right to have a parent, guardian, custodian, or attorney present under G.S. 7B-2101(b) and S.L. 2023-114 does not make any changes to this law). Part III of S.L. 2023-114 adds “caretaker” to the list of people to whom a 16- or 17-year-old has a right to have present during a custodial interrogation.

Who is a Caretaker?

S.L. 2023-114 adds a new G.S. 7B-2101(e) to define who qualifies as a caretaker for this purpose. The definition is the same definition of caretaker contained in G.S. 7B-101(3), the law that pertains to cases of abuse, neglect, and dependency. Under this definition, a caretaker

“means any person other than a parent, guardian, or custodian who has responsibility for the health and welfare of a juvenile in a residential setting. A person responsible for a juvenile’s health and welfare means a stepparent, a foster parent, an adult member of the juvenile’s household, an adult entrusted with the juvenile’s care, a potential adoptive parent during a visit or trial placement with a juvenile in the custody of a department, any person such as a house parent or cottage parent who has primary responsibility for supervising a juvenile’s health and welfare in a residential child care facility or residential educational facility, or any employee or volunteer of a division, institution, or school operated by the Department of Health and Human Services.”

When a Caretaker Can be Present

The role of the caretaker in the custodial interrogation of a 16- or 17-year-old juvenile is addressed in two places under the revised statute. First, a caretaker is added to the list of people that the juvenile has the right to have present during questioning. Once the new law takes effect, juveniles who are 16- or 17-years-old will have the right to have a “parent, guardian, custodian, or caretaker present during questioning.” G.S. 7B-2101(a1)(3). Second, a new G.S. 7B-2101(a2) addresses situations in which the parent, guardian, or custodian is unavailable. Under this new provision, if a juvenile aged 16 or older invokes the right to have a parent, guardian, or custodian present during questioning, law enforcement must make a reasonable effort to contact that person. The new statute goes on to state that “[i]f the parent, guardian, or custodian is not available, a caretaker can be present during questioning.”

Secure Custody Order Changes

Issuance and Execution of Secure Custody Orders Before Service of the Petition

The procedure to issue an initial secure custody order usually involves the filing of the juvenile petition and the issuance of a secure custody order at the same time. Questions sometimes arise regarding whether law enforcement can take a juvenile into custody based on the issuance of that initial secure custody order when the juvenile has not been served with the petition. Part VI of S.L. 2023-114 amends G.S. 7B-1904 to provide clear authority for the issuance of a secure custody order after the filing of the petition and before the juvenile has been served with the petition. In addition, the new language provides that the juvenile must be served with the petition within 72 hours after the juvenile is detained. This new language clearly authorizes both the issuance of a secure custody order, and detention of the juvenile based on that order, before the juvenile is served. In addition, Part IV of S.L. 2023-114 also amends G.S. 7B-1806 to add explicit authority for a juvenile court counselor to effectuate service. This authority is not new. G.S. 143B-831(11) provides authority for juvenile court counselors to “[s]erve necessary court documents pertaining to delinquent and undisciplined juvenile matters.” Adding this existing authority into the Juvenile Code places the law related to service in delinquency and undisciplined cases into one place. It will now be easier to understand that a juvenile court counselor or a law enforcement officer can effectuate service for a juvenile, including a juvenile who is detained under a secure custody order before being served. The amendments to G.S. 7B-1806 also codify existing case law regarding waiver of defects in service. The statute will now provide that “[a] defense of lack of personal jurisdiction or insufficiency of service of process is waived if a parent, guardian, or custodian and juvenile avail themselves to the court and an objection is not raised at the initial court appearance.” Finally, the amendments to G.S. 7B-1904 also provide express authority for a juvenile court counselor to assume custody of a juvenile as the result of the issuance of a secure custody order. Both law enforcement and juvenile court counselors will therefore be able to assume custody of a juvenile pursuant to a secure custody order.

Entering a Premises or Vehicle to Take a Juvenile Into Custody

S.L. 2023-114 also contains a new G.S. 7B-1904.5 called “Execution of secure custody order by law enforcement officer.” This section contains exemption from liability language related to execution of a secure custody order that is complete and regular on its face. This language is part of the current Juvenile Code and was simply shifted into this new section in S.L. 2023-114. The new language in G.S. 7B-1904.5 relates to law enforcement authority to enter private premises or vehicles to execute a secure custody order, and to use force during any such entry. The language matches the existing language in G.S. 15A-401(e) that governs entry on private premises or vehicles, and use of force during such entry, to effectuate the arrest of a person subject to criminal jurisdiction. The language provides authority for a law enforcement officer to enter a private premises or vehicle to take a juvenile into custody when:

• The law enforcement officer has a secure custody order in their possession. Possession of a copy of a secure custody order will suffice when the original order is in the possession of a member of a law enforcement agency in the same county where the officer is employed and the officer verifies with the agency that the order is current and valid; and
• The officer has reasonable cause to believe that the juvenile is present in the premises or vehicle; and
• The officer has given, or made a reasonable effort to give, notice of their authority and purpose to an occupant of the premises or vehicle. This notice is not required if there is reasonable cause to believe that giving notice would present a danger to the life or safety of any person.

Use of force to enter the premises or vehicle is authorized if (1) the officer believes that admittance is being denied or unreasonably delayed or if (2) notice is not required because there is reasonable cause to believe that giving notice would present a danger to the life or safety of any person. It is important to note that the U.S. Supreme Court held that an arrest warrant is sufficient to enter the home of the person named in the warrant, but it does not justify entry into the home of a third party. Steagald v. U.S., 451 U.S. 204 (1981). That holding was based on the third-party homeowner’s constitutional protection against unreasonable search and seizure and presumably applies in the same way to the search of a third party’s home based on a secure custody order issued for a juvenile. Exigent circumstances, consent, or a search warrant for the home of the third party is likely required to take a juvenile into custody in a home where the juvenile does not reside in order to follow the holding in Steagald.

Coming in November

My November blog will cover the final component of S.L. 2023-114 that applies to offenses committed on or after December 1, 2023— new law related to juvenile confidentiality called “Lyric and Devin’s Law.” S.L. 2023-114 also contains a significant revision to the law that governs juvenile capacity to proceed. These provisions do not take effect until January 1, 2025. I will write and teach about them in the fall of 2024. In the meantime, please feel free to reach out to me with any questions or feedback. You can always contact me at greene@sog.unc.edu.