My 12-year old son was caught shoplifting headsets--valued at about $125--as my wife and kids exited a national chain store. While my wife situated our other kids in a safe spot, security guards whisked my son off to a locked room. My wife told the security guard and then the manager that she wanted to be present with our minor son, but they wouldn't let her. A male friend happened to walk in the store and my wife enlisted his help. He told the manager that if my wife couldn't be with our son, the interview stopped right then. The manager relented. A policewoman arrived and interviewed my son in front of my wife; I arrived partly through the interview and both of us sat calmly through the questioning. The manager wanted my son to sign a statement and I said that he wouldn't be signing anything without legal advice first. The police officer said that my son seemed like a nice kid and that she would be recommending community service for him.
At the conclusion of the questioning, we asked to speak to the manager and policewoman without our son present. I asked if I could tape record the conversation; the store personnel looked to the policewoman and she said that it was okay. I told them that while I was completely embarrassed by my son's actions and that any punishment they could give him would pale in comparison to what he would receive at home, I wanted to know who was responsible for separating my wife from our minor son and then not allowing her access to him? The manager finally accepted responsibility. The policewoman then kind of stumbled through an explanation that really only she had said that I could tape the conversation. At that point I got heated and told the manager that I would find out whether my son's civil rights had been violated and we left.
I imagine the policewoman and the store personnel conferred after we left because the officer called my wife on her way home and explained that since my son hadn't technically been arrested, she hadn't needed to read him his rights. She said in situations like this, she normally did it afterwards. My wife questioned her about what good it did to explain someone their rights AFTER interviewing them, but didn't receive a satisfactory explanation.
Bottom line--my son shoplifted. He was caught with the merchandise in his pocket, they have him on video tape, and he admitted it to the policewoman and I assume to the security guard (although I don't know because we weren't present). I know he wishes he had never been caught, but I truly think he is genuinely remorseful. This is completeley inconsistent with his typical behavior. My wife and I don't kid ourselves about our kids--we know they are far from perfect. But, the number of prideful moments they have brought us have dwarfed the embarrassing moments and nothing like this has ever happened. My son has straight A's in school and is very involved at our Church. While we are embarrassed by our son's actions, we love him dearly and generally consider him to possess strong character; this appears to be a momentary lapse. In any case, we want to look out for his best interests in this situation.
Where do we go from here? I know we will get a financial demand from the store, but not much else. Was my son arrested? Will he have to go to court? Should we hire an attorney? Will this be on his "record" or is there some way to avoid that?--he's only 12 and hopefully one moment of stupidity won't mark him for life. I've heard that minor's records are sealed, but that they can still be seen at times. I know a store doesn't have to contact a minor's parents, but this was actually separating my wife from our son and keeping them apart against my wife's stated wishes, not just a case of not contacting us. Was the police officer required to read my son his rights? She says she didn't have to because he wasn't actually arrested, but he was sequestered and not free to leave.
Any advice would be appreciated.
Criminal Defense Attorney
The police officer is correct that she doesn't have to read him his rights until there is a custodial interrogation. Conversely, your son doesn't have to talk to them about anything unless he is detained or arrested and then after his rights have been read.
The store security guard also had a right to question your son as long as he was not being detained. The security guard is only a civilian employee anyway and cannot commit a Miranda violation.
If I were your attorney I would counsel you to count yourself lucky, make sure your kids behave and get on with your life.
Criminal Defense Attorney
In California, juveniles can be held accountable for any criminal offense they commit, just like an adult. However, there are a few twists in juvenile law.
There are some procedural aspects of proving criminal intent (specifically knowing right from wrong and the ability to form criminal intent for a child under 14), Miranda admonitions and when they must be given, how waivers must be sought in order to render a resulting statement admissible, etc.
I can appreciate you wanting to protect your child. Should he face charges and be "in the system," his record does not automatically "seal" when he turns 18, nor does it just drop off his record.
See the link below for some additional information and feel free to call my office if I can help.
You don't have to be formally arrested for Miranda warnings to apply. If the cop is conducting a custodial interrogation, then Miranda is required if they want to use the statements in court.
Custodial just means not free to go; it does not require handcuffs or a formal arrest. Interrogation means questioning a suspect; does not mean aggressive, third--degree grilling. It can all be done very politely. It she's questioning your son about his involvement in a crime while he is detained, it is a custodial interrogation.
She had an obligation to Mirandize him if the State intends to use the statement against him. Also because he is a juvenile, the police are supposed to allow child to consult with parent BEFORE he decides whether or not waive his rights.
The cop called because, having thought about, she realized that she never got a valid waiver. If they tried to bring a criminal action the experienced juvenile lawyer you hire - get a juvenile lawyer - will know how to keep the statement out.
Lastly, I would encourage you to remember that the system can be heavy-handed and though you are undrstandably disappointed in your son and expect better, he does not need a conviction to learn his lesson. Let his lawyer help him benefit from the cop's failure to do their job right. (I say that as a lawyer and a parent.)
When I worked in juvenile many years ago, a judge asked me if I was doing right by a child when I helping him/her escape responsibility (this was after she acquitted my client of assault b/c the DA hadn't proved her case) . I told the Judge - Sure, whenever the court follows the law (or makes others follow the law) and let's a child receive the benefit of a reasonable doubt (or the 4th Amendment), the child has learned about integrity of the system and fair play. The rules are in place for good reason.