At-a-Glance Contributor James Allmendinger, A sole practitioner in Durham, NH

In Re E.G.

10th Circuit Court-Derry Family Division No. 2017-0375

August 17, 20


  • Whether a juvenile was “in custody” and therefore entitled to Miranda warnings when police questioned the juvenile at his residence.

The fire department and the police department were called to a Londonderry residence where a juvenile in a bedroom was conscious but severely intoxicated and vomiting. A fireman and  the first officer to arrive, saw alcohol and a plastic sandwich bag containing a green leafy substance that he believed to be marijuana in the bedroom. The police officer who arrived shortly thereafter smelled burnt marijuana, but learned that the plastic sandwich bag had disappeared. The police officer  suspected that other juveniles present in the residence may have removed the marijuana, and asked the juveniles to remain on the premises. Thereafter, they questioned the juveniles in the same bedroom where the alcohol and the baggie were first found.

The police officer asked the juveniles “to tell him what had happened” and they responded that “D.D.” had rapidly drunk half a bottle of vodka. When asked about the marijuana smell, all the juveniles denied using marijuana. When told that a fireman had seen a bag of marijuana which was no longer there, “E.G.” admitted to removing the marijuana and throwing it under his mother’s vehicle. After E.G’s admission, and on the advice of a third officer who had arrived on the scene, the officer placed E.G. under arrest. E.G. was then charged as a delinquent for the offenses of falsifying physical evidence and possession of drugs. E.G.’s case was deemed inappropriate for diversion.

At trial, E.G. filed a motion to suppress “all evidence obtained in violation of [his] right against self-incrimination.” Specifically, he contended that he had been subjected to custodial interrogation by the police without having been informed of his rights in accordance with Miranda and State v. Benoit. The trial court denied the motion. An adjudicatory hearing was held at which the State introduced police testimony that E.G. “admitted that he had taken the marijuana out of the box and brought it outside and threw it under the vehicle.” E.G. was convicted of illegal possession of drugs and appealed.

The Court’s lengthy analysis of Miranda rights turns on the question of whether E.G. was “in custody” at the time of the questioning. Although his youth is taken into account, the Court nonetheless concludes that he was not in custody at the time of the questioning. As the Court notes, “[d]uring a legal investigatory stop, an officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicions.”  E.G. was not under arrest and could have exercised his right to either leave the house or remain silent. Other factors considered — “the number of officers present, the degree to which the suspect was physically restrained, the interview’s duration and character, and the suspect’s familiarity with his surroundings”— did not weigh in favor of E.G.’s arguments. Because E.G. was not in custody, he was not entitled to be given a statement of his rights, including his right to remain silent.


Gordon J. MacDonald, attorney general and Sean R. Locke, assistant attorney general, on the memorandum of law and orally, for the State. Christopher M. Johnson, chief appel- late defender, of Concord, on the brief, and Eric S. Wolpin orally, for the juvenile.