5th Amendment violation?

[Sooty]

What is the name of your state (only U.S. law)? Virginia

My son was accused of selling a marijuana cigarette at school last week. He was brought to the assistant principals officer where another principal and a city police officer were waiting. They interrogated him regarding the event at which time he confessed to the incident and was completely honest. He has never been involved in any such activity and is an honor roll student. He is 14 years old and is in 8th grade. We had a hearing at the school today where we pleaded our case, but he is being recommended for expulsion before a school board committee. My problem is this, Virginia law and the school policy specifically state that the parent must be notified prior to any questioning by law enforcement of the student while under school authority. We were notified after the interrogation was complete. There will be no criminal charges due to the lack of evidence, according to the police officer, but he is still facing expulsion. Not only were the above statutes violated, but was he considered in custody and should have been Mirandized? The police officer clearly and admittedly questioned him at this time. We will be scheduled for a hearing before the committee soon and I will be contacting my attorney tomorrow, but wanted to get some opinions here. The school stated to us that "the technicality"may be our only way out of this. Please give me your opinions. Thank you in advance.

 

[tranquility]

The statute is more important to you than Miranda. In either case, I bet the expulsion is appropriate, but the violation of the statue may help make any statement he made inadmissible in any due process hearing on the expulsion.

 

[swalsh411]

I just re-read the 5th Amendment to make sure I didn't forget something. What part of it do you think was violated?

 

[Sooty]

He did not receive due process of law which includes the right against self incrimination. I am no legal guru and figured I would be berate for this. i am simply looking for some legal advice not parenting advice.

 

[swalsh411]

I wasn't berating you it was a direct question. You're the one who brought up the 5th Amendment. The school might have not followed it's disciplinary policy but that does not rise to the level of violating Constitutional rights. The school is not bound by the same rules as the police when making these sorts of decisions. Your son admitted to possessing and distributing a drug on school property. What do you plan to speak to an attorney about? Do you honestly believe the potential punishment is not appropriate?

 

[Sooty]

No, the punishment is agreeable, but I want to protect my child as best I can. My legal question is, was he considered in custody? Law enforcement was present and conducted questioning without my consent and without him being advised of his rights. I know that the state law and school policy prohibits questioning by law enforcement without consent.

 

[BOR]

He did not receive due process of law which includes the right against self incrimination. I am no legal guru and figured I would be berate for this. i am simply looking for some legal advice not parenting advice.

It is probably not arguable that he was "in custody" for purposes of Miranda. The crux is, if a detainee is not Mirandized, any statements made during questioning would be inadmissable in court.


Statutory violations do not trigger the Exclusionary rule, only Constitutional ones. This means that even though VA law may state a parent is to be present (can you post that), and they were not, since it is NOT a constitutional violation, no evidence can be suppressed, meaning the confession can be thrown out.

Now since we have a Constitutional issue, it means something, but since no criminal charges are filed, it is not remedial in nature.

School suspensions however are scrutinzed under the Due Process Clause of the 14th AM. If statutory law was broken, you are of course free to counsult an attorney or the ACLU. The Q being did this statutory violation violate Due Process??

 

[CdwJava]

I know that out here it is not clearly established law whether being summoned to the office and interviewed by the principal and a police officer equates to "custody" for purposes of Miranda. This is an arguable presumption that can be presented at any criminal proceeding, or, if permitted in VA, in any expulsion hearing.

Consult local counsel.

 

[BOR]

I know that out here it is not clearly established law whether being summoned to the office and interviewed by the principal and a police officer equates to "custody" for purposes of Miranda. This is an arguable presumption that can be presented at any criminal proceeding, or, if permitted in VA, in any expulsion hearing.

Consult local counsel.

Carl, if he is summoned to the office, he is on school time, so he is NOT free to leave, that ='s custody? Right?

She said no criminal charges are filed. The Exclusionary rule only applies to a criminal prosecution not a DP hearing.

 

[CdwJava]

Carl, if he is summoned to the office, he is on school time, so he is NOT free to leave, that ='s custody? Right?

Or, a detention.

The key is not just that one not be permitted to leave but that the circumstances be equal to that of a custodial arrest. Remember that "custody" for adults and juveniles means either the actual arrest or equivalent restraints on the person's freedom of movement. (Stansbury (1994) 511 U.S. 318, 322.) This standard is much greater than that of a detention.

However, at least in cases out here, it has been argued that the added authority of the school extends the detention to something greater than a typical field detention and thus a number of cases have gone against the state. Many of us teach officers here to Mirandize prior to interviewing students called out of class to the office ... as a precaution.

She said no criminal charges are filed. The Exclusionary rule only applies to a criminal prosecution not a DP hearing.

Unless the VA state education codes or other state/case law offer a similar level of protections. It probably does not, but it might.

 

[BOR]

Or, a detention.

The key is not just that one not be permitted to leave but that the circumstances be equal to that of a custodial arrest. Remember that "custody" for adults and juveniles means either the actual arrest or equivalent restraints on the person's freedom of movement. (Stansbury (1994) 511 U.S. 318, 322.) This standard is much greater than that of a detention.

I read that case and it seems the totality is, the kid was in custody.

Unless the VA state education codes or other state/case law offer a similar level of protections. It probably does not, but it might.

Yeah, as we all know state Constitutional protections can be more stringent than the federal.

 

[CdwJava]

I read that case and it seems the totality is, the kid was in custody.

Which is an arguable presumption.

But, to avoid the argument many agencies out here encourage their officers to Mirandize kids in this situation to circumvent such a claim.

 

[tranquility]

I think he was not in custody in this instance (what kid is "free to leave" school--ever?), but it is of no matter. The fifth amendment would not protect the statement in a school board expulsion hearing.