I have a case that involves two juveniles that are in CPS custody who committed a sex assault at a CPS placement faciilty. They were questioned by a detective at the facility and both confessed to the crime at the facility (neither magistrated). The officer conducted the interviews separately with an unlocked door and advised each of the juvenile's that they didn't have to answer any questions and that they were free to leave at any time. They are 14 and 15 years old.
The defense attorney has filed a suppression motion citing that because they are in the custody of CPS, not volunarily at the facility, and would have to run away or break out of the facility to leave that the juveniles are in custody and should have been magistrated under TFC 51.095. The attorney cites ITMO L.M.993 SW2nd 276 as support for the supression.
Am I good to go, or am I sunk? Any thoughts would be greatly appreciated.
Sec. 51.095(a)(1) applies if during or after the interrogation of the child by an officer if the child is in the possession of CPS and is suspected of engaging in conduct that violates a penal law. Tex. Fam. Code Sec. 51.095(d).
Take a look at In re J.R., No. 04-04-00925-CV, 2005 Tex. App. LEXIS 10847(Tex. App.-San Antonio 2005, no pet.), this may help depending on your circumstances but things do not sound good.
The problem I have with 51.095(d)(3) is that this provision of the family code suggests that any time a law enforcement officer needs to do an investigation of a CPS child he would need to magistrate them before speaking with them (if there is a chance the child is considered a suspect). Meaning that they would need to have the child magistrated before he could even attempt to get their side of the story. To me this seems like an undue hardship on law enforcement and some what of an anomaly in terms of doing realistic investigation of crimes against children.
All of the cases I have read on the issue of juvenile confessions deal with "the totality of the circumstaces" and "whether or not the juvenile was told that they were free to leave" and "the age of the juvenile". TFC 51.095(d)(3) seems to suggest that all of those things don't even matter and shouldn't be a factor that the courts consider if the DFPS is TMC or PMC.
Am I way out in left field here?
No you're not and thats the way it was prior to the Murray case. It was quite a chore to retrain our law enforcement officers about this requirement when it first came out many years ago.
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