IN THE SUPREME COURT OF NORTH CAROLINA

No. 271PA15

Filed 21 December 2016

STATE OF NORTH CAROLINA

v.

FELIX RICARDO SALDIERNA

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision 

of the Court of Appeals, ___ N.C. App. ___, 775 S.E.2d 326 (2015), reversing an order 

denying defendant’s motion to suppress entered on 20 February 2014 by Judge 

Forrest D. Bridges, vacating a judgment entered on 4 June 2014 by Judge Jesse B. 

Caldwell, both in Superior Court, Mecklenburg County, and remanding the case for 

further proceedings. Heard in the Supreme Court on 16 February 2016.

Roy Cooper, Attorney General, by Kimberly N. Callahan, Assistant Attorney 

General, for the State-appellant.

Goodman Carr, PLLC, by W. Rob Heroy, for defendant-appellee.

EDMUNDS, Justice.

Defendant, a juvenile, asked to telephone his mother while undergoing 

custodial questioning by police investigators. The call was allowed, after which the 

interrogation continued. The trial court denied defendant’s motion to suppress the 

statements he made following the call. We conclude that defendant’s request to call 

his mother was not a clear invocation of his right to consult a parent or guardian
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Opinion of the Court

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before proceeding with the questioning. Accordingly, we reverse the decision of the 

Court of Appeals that reversed the trial court’s order denying the motion to suppress.

After several homes around Charlotte were broken into on 17 and 18 December 

2012, Charlotte-Mecklenburg Police arrested defendant on 9 January 2013. At the 

time, defendant was sixteen and one-half years old. The arresting officers took 

defendant to a local police station where Detective Kelly (Kelly) interrogated him. 

Before beginning her interrogation, Kelly provided defendant with both English and 

Spanish versions of the Juvenile Waiver of Rights Form routinely used by the 

Charlotte-Mecklenburg Police Department to explain the protections afforded

juveniles under N.C.G.S. § 7B-2101. These forms advised defendant that he had the 

right to remain silent; that anything he said could be used against him; that he had 

the right to have a parent, guardian, or custodian present during the interview; that

he had the right to speak to a lawyer and to have a lawyer present to help him during 

questioning; and that a lawyer would be provided at no cost prior to questioning if he 

so desired. Kelly also read these rights in English to defendant, pausing after each

to ask if defendant understood. Defendant initialed the English form beside each 

enumerated right and the section that noted:

I am 14 years old or more and I understand my rights as 

explained by Officer/Detective Kely [sic]. I DO wish to 

answer questions now, WITHOUT a lawyer, parent, 

guardian, or custodian here with me. My decision to 

answer questions now is made freely and is my own choice. 

No one has threatened me in any way or promised me 

special treatment. Because I have decided to answer 
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Opinion of the Court

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questions now, I am signing my name below.

The words “I DO wish to answer questions now” on the form are circled. Only after 

defendant signed the form did Detective Kelly begin the interrogation.

Kelly had gone no further than noting the time and date for the audio recording 

when defendant asked, “Um, can I call my mom?” Detective Kelly offered her cellular 

telephone to defendant and allowed him to step out of the booking room to make the

call. Detective Kelly could hear defendant but was not sure if he placed one call or 

two. Defendant did not reach his mother but did speak to someone else. However, 

because defendant spoke Spanish while on the phone, Kelly could not provide any 

details concerning the nature of the conversation. Upon defendant’s return to the 

booking area, Kelly resumed her questioning. Defendant did not object and made no 

further request to contact anyone. During the ensuing interview, defendant 

confessed that he had been involved in the break-ins.

Defendant was indicted, inter alia, for two counts of felony breaking and 

entering, conspiracy to commit breaking and entering, and conspiracy to commit 

common law larceny after breaking and entering. On 9 October 2013, defendant 

moved to suppress his confession, arguing that it was illegally obtained in violation

both of his rights as a juvenile under N.C.G.S. § 7B-2101 and of his rights under the

United States Constitution. After conducting an evidentiary hearing, the trial court 

denied the motion in an order entered on 20 February 2014, finding as facts that 

defendant was advised of his juvenile rights and, after receiving forms setting out 
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Opinion of the Court

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these rights both in English and Spanish and having the rights read to him in English 

by Kelly, indicated that he understood them. In addition, the trial court found that 

defendant informed Kelly that he wished to waive his juvenile rights and signed the 

form memorializing that wish. Although defendant then unsuccessfully sought to 

contact his mother, the court found:

17. That Defendant did not at that time or any other 

time indicate that he changed his mind regarding 

his desire to speak to Detective Kelly. That 

Defendant did not at that time or any other time 

indicate that he revoked his waiver.

18. That Defendant only asked to speak to his mother.

19. That Defendant did not make his interview 

conditional on having his mother present or 

conditional on speaking to his mother.

20. That Defendant did not ask to have his mother

present at the interview site.

21. That, upon review of the totality of the 

circumstances, the Court finds that Defendant’s 

request to speak to his mother was at best an 

ambiguous request to speak to his mother.

22. That at no time did Defendant make an 

unambiguous request to have his mother present 

during questioning.

23. That Defendant never indicated that his mother was 

on the way or could be present during questioning.

24. That Defendant made no request for a delay of 

questioning.
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Opinion of the Court

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Based on those findings, the trial court determined that the interview was

conducted in a manner consistent with N.C.G.S. § 7B-2101 and did not violate any of 

defendant’s state or federal rights. The court concluded as a matter of law that the 

State met its burden of establishing by a preponderance of the evidence that 

defendant “knowingly, willingly, and understandingly waived his juvenile rights.”

On 4 June 2014, defendant entered pleas of guilty to two counts of felony 

breaking and entering and two counts of conspiracy to commit breaking and entering, 

while reserving his right to appeal from the denial of his motion to suppress. The 

court sentenced defendant to a term of six to seventeen months, suspended for thirtysix months subject to supervised probation.

The Court of Appeals reversed the trial court’s order denying defendant’s 

motion to suppress, vacated the judgments entered upon defendant’s guilty pleas, and 

remanded the case to the trial court for further proceedings. State v. Saldierna, ___ 

N.C. App. ___, ___, 775 S.E.2d 326, 334 (2015). The Court of Appeals recognized that 

the trial court correctly found that defendant’s statement asking to telephone his 

mother was ambiguous at best. Id. at ___, 775 S.E.2d at 331. However, it went on to 

conclude that, unlike the invocation of Miranda rights by an adult, a juvenile need 

not make a clear and unequivocal request in order to exercise his or her right to have 

a parent present during questioning. Id. at ___, 775 S.E.2d at 333-34. Instead, the 
STATE V. SALDIERNA

Opinion of the Court

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Court of Appeals held that when a juvenile between the ages of fourteen and eighteen1

makes an ambiguous statement that potentially pertains to the right to have a parent 

present, an interviewing officer must clarify the juvenile’s meaning before proceeding 

with questioning. Id. at ___, 775 S.E.2d at 334. The Court of Appeals based this 

distinction on the fact that Miranda rights are rooted in the United States 

Constitution, while the right to have a parent present during custodial interrogations 

is an additional statutory protection for juveniles who, by virtue of their age, lack the 

life experience and judgment of an adult. Id. at ___, 775 S.E.2d at 333.

This Court granted the State’s petition for discretionary review. We review an 

opinion of the Court of Appeals for errors of law. N.C. R. App. P. (16)(a). “The 

standard of review in evaluating the denial of a motion to suppress is whether 

competent evidence supports the trial court’s findings of fact and whether the 

findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167-68, 

712 S.E.2d 874, 878 (2011) (citing State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 

579, 585 (1994)). Findings of fact are binding on appeal if supported by competent 

evidence, State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations 

omitted), while conclusions of law are reviewed de novo, State v. Ortiz–Zape, 367 N.C. 

 

1 Before 2015, the pertinent part of the statute read: “When the juvenile is less than 

14 years of age, no in-custody admission or confession resulting from interrogation may be 

admitted into evidence unless the confession or admission was made in the presence of the 

juvenile’s parent, guardian, custodian, or attorney.” N.C.G.S. § 7B-2101(b) (2013). In 2015, 

the General Assembly amended subsection 7B-2101(b) to raise the relevant age limit to 

“less than 16 years of age.” Act of May 26, 2015, ch. 58, sec. 1.1, 2015 N.C. Sess. Laws 126, 

126.
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Opinion of the Court

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1, 5, 743 S.E.2d 156, 159 (2013) (citing Biber, 365 N.C. at 168, 712 S.E.2d at 878), 

cert. denied, ___ U.S. ___, 134 S. Ct. 2660, 189 L. Ed. 2d 208 (2014).

In evaluating whether the trial court correctly denied defendant’s motion to 

suppress, we first must consider the threshold question of whether defendant invoked 

his right to have his mother present during the custodial interview. We must also 

consider whether defendant knowingly and voluntarily waived his rights under 

section 7B-2101 of the North Carolina General Statutes and under the constitutions 

of North Carolina and the United States, thus making his confession admissible. We 

begin with the former inquiry.

The State argues that defendant’s request to call his mother was not an 

invocation of his right to have a parent present under N.C.G.S. § 7B-2101(a)(3). The 

State points out that defendant simply asked to call his mother, which the detective

readily permitted. He never requested his mother’s presence or indicated that he 

wished to suspend the interview until he could reach her. The State contends that 

when a juvenile’s statement is ambiguous, law enforcement officers have no

additional duty to ascertain whether the juvenile is invoking his statutory rights or 

whether they may continue questioning the minor.

In response, defendant argues that, according to the plain language of N.C.G.S. 

§ 7B-2101, the interview should have ceased until defendant spoke with his mother 

or indicated his desire to proceed without her, even though the precise import of his 

question to the detective was unclear. Should we disagree with this statutory 
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Opinion of the Court

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interpretation, defendant makes an argument under the United States Constitution 

that we should extend the rationale in J.D.B. v. North Carolina, 564 U.S. 261, 264-

65, 131 S. Ct. 2394, 2398-99, 180 L. Ed. 2d 310, 318-19 (2011), which held that the 

age of a juvenile is a factor in determining whether he or she was in police custody 

for purposes of Miranda, and hold that reviewing courts must take into account the 

juvenile’s age and maturity level when determining the admissibility of juvenile 

confessions.

As to defendant’s statutory argument, N.C.G.S. § 7B-2101(a) establishes that 

juveniles must be advised of certain rights prior to a custodial interrogation. The 

statute codifies the juvenile’s Miranda rights and adds the additional protection that

the juvenile has the right to have a parent, guardian, or custodian present during 

questioning. N.C.G.S. § 7B-2101(a) (2015). A statement made during custodial 

interrogation is admissible only if the juvenile knowingly, willingly, and 

understandingly has waived his constitutional and statutory rights. Id. § 7B-2101(d)

(2015).

This Court has recognized that a juvenile’s statutory right to have a parent 

present during custodial interrogation is analogous to the constitutional right to 

counsel and therefore is entitled to the same protection. State v. Smith, 317 N.C. 100, 

106, 343 S.E.2d 518, 521 (1986), abrogated in part on other grounds by State v. 

Buchanan, 353 N.C. 332, 543 S.E.2d 823 (2001). In Smith, we noted that the 

Supreme Court of the United States held in Edwards v. Arizona, 451 U.S. 477, 101 
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Opinion of the Court

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S. Ct. 1880, 68 L. Ed. 2d 378 (1981), that after a defendant expresses a desire to deal 

with police only through counsel, he or she may not be questioned further until 

counsel is present or the defendant reinitiates communication with law enforcement. 

317 N.C. at 106, 343 S.E.2d at 521. This Court in Smith applied that same principle 

in the context of juvenile law to hold that, when a juvenile unambiguously requested 

that his mother be brought to the police station, officers were required to cease all 

questioning until the mother arrived or the juvenile reinitiated discussions. Id. at 

107, 343 S.E.2d at 522. These cases leave no doubt that a juvenile’s constitutional 

rights under Miranda and statutory rights under N.C.G.S. § 7B-2101(a) are of equal 

weight and given equal consideration.

Nevertheless, the Supreme Court of the United States also has held that, when

an individual under interrogation mentions an attorney with such vagueness that 

law enforcement investigators are left unsure whether the comment is an invocation 

of the right to counsel, police have no duty to ask clarifying questions and may 

continue with the interrogation. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 

2350, 2355, 129 L. Ed. 2d 362, 371 (1994) (holding that invocation of the right to 

counsel “requires, at a minimum, some statement that can reasonably be construed 

to be an expression of a desire for the assistance of an attorney” (quoting McNeil v. 

Wisconsin, 501 U.S. 171, 178, 111 S. Ct. 2204, 2209, 115 L. Ed. 2d 158, 169 (1991))). 

In other words, the objective test set out in Davis considers whether a reasonable 

officer under the circumstances would have understood the defendant’s statement to 
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Opinion of the Court

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be an invocation of his or her right to have an attorney present. Davis, id. at 459, 114 

S. Ct. at 2355, 129 L. Ed. 2d at 371.

This Court has adopted the analytical framework found in Davis when 

determining whether a defendant has invoked his or her constitutional rights. For 

instance, in State v. Boggess, 358 N.C. 676, 600 S.E.2d 453 (2004), we held that the

defendant’s statement to police that “[i]f y’all going to treat me this way, then I 

probably would want a lawyer” did not constitute an invocation of the defendant’s 

right to an attorney. Id. at 687, 600 S.E.2d at 460; see also State v. Hyatt, 355 N.C. 

642, 655-56, 566 S.E.2d 61, 70-71 (2002) (holding that the defendant did not invoke 

his right to counsel when a nearby officer “could have heard” the defendant whisper 

to his father that “I want you to get me a lawyer”), cert. denied, 537 U.S. 1133, 123 S. 

Ct. 916, 154 L. Ed. 2d 823 (2003). Similarly, in State v. Waring, 364 N.C. 443, 701 

S.E.2d 615 (2010), cert. denied, 565 U.S. 832, 132 S. Ct. 132, 181 L. Ed. 2d 53 (2011), 

we held that the defendant’s statement that he “was not going to snitch” when 

questioned about his accomplice’s name was not an unambiguous invocation of his 

right to remain silent. Id. at 473, 701 S.E.2d at 635.

We have also applied Davis when the suspect under interrogation is a juvenile. 

State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 

S. Ct. 1379, 149 L. Ed. 2d 305 (2001). In Golphin, the juvenile defendant was 

apprehended after he and his brother committed an armed robbery, stole a vehicle, 

and murdered two police officers. Id. at 380, 386-87, 533 S.E.2d at 183, 187. After
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Opinion of the Court

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he was detained, the defendant waived his juvenile rights under section 7B-2101 and 

gave a statement to an agent of the State Bureau of Investigation. Id. at 449, 533 

S.E.2d at 224. When the agent specifically asked the defendant whether he was 

aware of an incident involving a Jeep, the defendant responded that “he didn’t want 

to say anything about the [J]eep. He did not know who it was or he would have told 

us.” Id. at 451, 533 S.E.2d at 225. Upon further questioning, however, the defendant

admitted that his brother shot at a Jeep that was following them. Id. at 387, 449,

533 S.E.2d at 187, 224.

On appeal, the defendant argued that the agent violated his constitutional 

right to silence by continuing to question him after he requested not to discuss the 

Jeep. Id. at 448-49, 533 S.E.2d at 224. In rejecting the defendant’s argument, we 

applied the Davis analysis and concluded that the defendant’s statement was not an 

unambiguous request to remain silent. Id. at 450-51, 533 S.E.2d at 225. Instead, the 

statement appeared to be an acknowledgment that, had he known who was involved, 

the defendant would have shared that information freely. Id. at 451, 533 S.E.2d at 

225. As a result, it was reasonable for the agent to continue the questioning because

the defendant failed clearly to invoke any of his rights. Id. at 451-52, 533 S.E.2d at 

225. In reaching this conclusion, we confirmed both that the Davis analysis applies 

when evaluating whether a juvenile defendant has invoked his or her juvenile rights

during a custodial interrogation and that law enforcement officers are not required 
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Opinion of the Court

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to seek clarification of ambiguous statements made by juvenile defendants under 

interrogation. See id. at 451, 533 S.E.2d at 225.

Because a juvenile’s statutory right to have a parent or guardian present 

during questioning is entitled to the same protection as the constitutional right to 

counsel, we must apply Davis in determining whether defendant’s statement—“Um, 

can I call my mom?”—was a clear and unambiguous invocation of his right to have 

his parent or guardian present during questioning. We conclude that it was not.

Although defendant asked to call his mother, he never gave any indication that 

he wanted to have her present for his interrogation, nor did he condition his interview 

on first speaking with her. Instead, defendant simply asked to call her. When the 

request was made, Kelly immediately loaned defendant her personal cellular 

telephone so that he could make the call. Defendant’s purpose for making the call 

was never established. Whatever his reasons, defendant did not “articulate his desire 

to have [a parent] present sufficiently clearly that a reasonable police officer in the 

circumstances would understand the statement to be a request for [a parent],” 

especially in light of the fact that defendant had just signed the portion of the juvenile 

rights form expressing his desire to proceed on his own. Davis, 512 U.S. at 459, 114 

S. Ct. at 2355, 129 L. Ed. 2d at 371. As the trial court pointed out, defendant’s 

statement was at best an ambiguous invocation of his right to have his mother 

present. As in Davis, without an unambiguous, unequivocal invocation of defendant’s

right under N.C.G.S. § 7B-2101(a)(3), law enforcement officers had no duty to ask 
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Opinion of the Court

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clarifying questions or to cease questioning. Because defendant’s juvenile statutory 

rights were not violated, we reverse the decision of the Court of Appeals to the 

contrary.

Nevertheless, the admissibility of defendant’s confession is a two-pronged 

inquiry, as noted above. Even though we have determined that defendant’s N.C.G.S. 

§ 7B-2101(a)(3) right was not violated, defendant’s confession is not admissible unless 

he knowingly, willingly, and understandingly waived his rights. N.C.G.S. § 7B2101(d). The Court of Appeals did not reach this question and instead erroneously 

resolved the case upon the first prong. Saldierna, ___ N.C. App. at ___, 775 S.E.2d at 

334. Because we have concluded that defendant’s right under subdivision 7B2101(a)(3) was not violated, we remand this case to the Court of Appeals for 

consideration of the validity of defendant’s waiver of his statutory and constitutional 

rights.

REVERSED AND REMANDED.

Justice BEASLEY dissenting. 

I disagree with the majority and would hold that defendant’s statement, “Um, 

Can I call my mom?” was an unambiguous invocation of his statutory right to have a 

parent present during custodial interrogation. Assuming arguendo that defendant’s 

statement was ambiguous, I also disagree with the majority’s conclusion that because 

defendant’s request was ambiguous his statutory rights under N.C.G.S. § 7B-2101 
STATE V. SALDIERNA

BEASLEY, J., dissenting

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were not violated. Because I would affirm the Court of Appeals’ holding that law 

enforcement officers are required to ask questions to clarify the desire and intent of 

a juvenile who makes an ambiguous statement relating to his statutory right to have 

a parent present, I respectfully dissent. 

Subsection 7B-2101(a) of the North Carolina General Statutes provides that 

juveniles must be advised of certain enumerated rights before being subjected to 

custodial interrogation. As explained by the majority, “The statute codifies the 

juvenile’s Miranda rights and adds the additional protection that the juvenile has the 

right to have a parent, guardian, or custodian present during questioning.” See 

N.C.G.S. § 7B-2101(a) (2015).2 As such, the right to have a parent, guardian, or 

custodian present, id. § 7B-2101(a)(3), “is not the codification of a federal 

constitutional right, but rather our General Assembly’s grant to the juveniles of 

North Carolina of a purely statutory protection in addition to those identified in 

Miranda.” State v. Saldierna, ___ N.C. App. ___, ___, 775 S.E.2d 326, 332 (2015)

 

2 Subsection 7B-2101(a) states that prior to being questioned “[a]ny juvenile in 

custody must be advised”: 

(1) That the juvenile has a right to remain silent;

(2) That any statement the juvenile does make can be and may be used 

against the juvenile;

(3) That the juvenile has a right to have a parent, guardian, or custodian 

present during questioning; and

(4) 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.

N.C.G.S. § 7B-2101(a) (2015). 
STATE V. SALDIERNA

BEASLEY, J., dissenting

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(citing, inter alia, State v. Fincher, 309 N.C. 1, 12, 305 S.E.2d 685, 692 (1983) (stating, 

for purposes of determining the appropriate prejudice standard, that “[t]he failure to 

advise [a juvenile] defendant of his right to have a parent, custodian or guardian 

present during questioning is not an error of constitutional magnitude because this 

privilege is statutory in origin and does not emanate from the Constitution”)). The

statute also establishes that a juvenile’s statement cannot be admitted into evidence 

unless the court “find[s] that the juvenile knowingly, willingly, and understandingly

waived” his constitutional and statutory rights. N.C.G.S. § 7B-2101(d) (2015). 

As the Court of Appeals stated, “[W]ith regard to a defendant’s Miranda rights 

to remain silent and to have an attorney present during a custodial interrogation, the 

law is clear.” Saldierna, ___ N.C. App. at ___, 775 S.E.2d at 332. A defendant must 

unambiguously invoke his or her Miranda rights, and law enforcement officers have 

no obligation to clarify a defendant’s ambiguous statements. See Davis v. United 

States, 512 U.S. 452, 459, 461-62, 114 S. Ct. 2350, 2355-56 (1994) (“[T]he suspect 

must unambiguously request counsel,” and law enforcement officers are not required 

to ask clarifying questions when a suspect’s statement regarding counsel is 

ambiguous); Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885 (1981) 

(holding that law enforcement officers must immediately cease questioning upon a 

suspect’s unambiguous request for counsel and cannot reinitiate interrogation until 

counsel arrives or the suspect “initiates further communication”). In State v. Golphin,

352 N.C. 364, 533 S.E.2d 168 (2000), cert. denied, 532 U.S. 931, 121 S. Ct. 1379 (2001),
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BEASLEY, J., dissenting

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this Court extended this rule to juveniles, holding that a juvenile defendant’s right to 

remain silent must be unambiguously invoked.3 Id. at 451-52, 533 S.E.2d at 225.

To determine whether a defendant unambiguously invoked his Miranda

rights, this Court applies the standard set forth in Davis: “Invocation of the Miranda

right to counsel ‘requires, at a minimum, some statement that can reasonably be 

construed to be an expression of a desire for the assistance of an attorney.’ ” Davis, 

512 U.S. at 459, 114 S. Ct. at 2355 (quoting McNeil v. Wisconsin, 501 U.S. 171, 178, 

111 S. Ct. 2204, 2209 (1991)). The Court goes on to say that the inquiry is based on 

what a “reasonable officer in light of the circumstances” would believe the statement 

to mean. Id. at 459, 114 S. Ct. at 2355 (citations omitted). Here defendant asked to 

speak to his mother prior to questioning.4 I agree with the Court of Appeals that 

Detective Kelly’s question, “You want to call her now before we talk?” is telling. See 

Saldierna, ___ N.C. App. at ___ n.6, 775 S.E.2d at 334 n.6 (“Kelly’s question indicates 

 

3 Golphin did not address a juvenile defendant’s right to have a parent present under N.C.G.S. 

§ 7B-2101(a)(3). 

4 The following conversation occurred after Detective Kelly advised defendant of his rights: 

[Defendant]: Um, Can I call my mom?

[Det. Kelly]: Call your mom now?

[Defendant]: She’s on her um. I think she is on her lunch 

now.

[Det. Kelly]: You want to call her now before we talk?

[Det. Kelly to other officers]: He wants to call his mom. 

(Emphases added.)
STATE V. SALDIERNA

BEASLEY, J., dissenting

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that she believed [defendant] might be asking to delay the interview, at least until he 

had a chance to speak to his mother.”). Implicit in the protections afforded by 

subdivision 7B-2101(a)(3) is that law enforcement officers understand whether a 

juvenile intends to invoke the statutory rights. The majority states that defendant 

“never gave any indication that he wanted to have [his mom] present for his 

interrogation . . . . Instead, defendant simply asked to call her.” Thus, according to 

the majority, “Defendant’s purpose for making the call was never established.” 

Despite the majority’s contention, the reasonable conclusion under the circumstances 

is that defendant wanted his mother present. Why else would defendant want to call 

his mom “now before [he] talked” if not to seek her advice and protection? The 

majority and the Court of Appeals agree that defendant’s statement was not an 

unambiguous invocation of his statutory right to have a parent present.5 However, 

defendant’s statement was “sufficiently clear[ ] that a reasonable police officer in the 

circumstances would understand the statement to be a request” to have his mother 

 

5 Under the law as it currently stands, I understand how the majority and the Court of Appeals 

reached the conclusion that defendant’s statement was ambiguous. See State v. Branham, 153 N.C. 

App. 91, 98-99, 569 S.E.2d 24, 28-29 (2002) (concluding that the juvenile defendant unambiguously 

invoked his right when he had officers write on the juvenile rights form that he wanted his mother 

present before questioning); see also State v. Smith, 317 N.C. 100, 106, 343 S.E.2d 518, 521 (1986) 

(finding that the juvenile defendant unambiguously invoked his right when he requested that his mom 

be brought to the station), abrogated in part on other grounds by State v. Buchanan, 353 N.C. 332, 543 

S.E.2d 823 (2001). But see State v. Oglesby, 361 N.C. 550, 558-59, 648 S.E.2d 819, 824 (2007) 

(Timmons-Goodson, J., dissenting) (stating, in regards to a juvenile defendant’s request to call his 

aunt, that “it is uncontested that . . . the juvenile’s confession in this case would be inadmissible if the 

individual requested had fallen into the requisite category”). For the reasons stated more thoroughly 

below, however, juvenile defendants are provided greater protections than their adult counterparts, 

especially in regards to a juvenile’s statutory right and protection to have a parent present.
STATE V. SALDIERNA

BEASLEY, J., dissenting

-18-

present before questioning. Davis, 512 U.S. at 459, 114 S. Ct. at 2355. In light of this 

unambiguous request, all questions should have immediately ceased until 

defendant’s mother was present or defendant reinitiated the conversation. See 

Edwards, 451 U.S. at 484-85, 101 S. Ct. at 1885. 

The cases discussed above only address a defendant’s constitutional Miranda 

rights, not his statutory rights. In regard to a juvenile’s statutory right to have a 

parent present, this Court has only addressed a juvenile’s unambiguous invocation of 

the right. See State v. Smith, 317 N.C. 100, 343 S.E.2d 518 (1986), abrogated in part 

on other grounds by State v. Buchanan, 353 N.C. 332, 340, 543 S.E.2d 823, 828 (2001). 

In Smith this Court stated that law enforcement officers must cease questioning 

when a juvenile unambiguously invokes his statutory right to have a parent present. 

Id. at 108, 343 S.E.2d at 522; see State v. Branham, 153 N.C. App. 91, 95, 569 S.E.2d 

24, 27 (2002). This Court has not, however, “considered the implications of a 

juvenile’s ambiguous reference” to his statutory right to have a parent present. 

Saldierna, ___ N.C. App. at ___, 775 S.E.2d at 333. The legislature intended to afford 

juveniles greater protection in subdivision (a)(3) than those afforded by a juvenile’s 

constitutional Miranda rights codified in N.C.G.S. § 7B-2101(a)(1), (2), and (4). See 

The Final Report of the Juvenile Code Revision Committee 183 (Jan. 1979) 

(commenting that the Committee added “[subdivision] (3) . . . to assure that the 

juvenile may have his parent present during questioning if he desires and [stating 

that subdivision (3)] is an addition to case law requirements” found in N.C.G.S. § 7B-
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BEASLEY, J., dissenting

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2101(a)(1), (2), and (4)). Moreover, when viewed in its entirety, section 7B-2101 

demonstrates our General Assembly’s acknowledgement that juveniles are especially 

vulnerable when subjected to custodial interrogation. See N.C.G.S. § 7B-2101(b) 

(providing that, in essence, a juvenile under the age of sixteen cannot waive his right 

to have a parent or attorney present); see also Act of May 26, 2015, ch. 58, sec. 1.1, 

2015 N.C. Sess. Laws 126, 126 (increasing the age of juveniles protected by subsection 

(b) from less than fourteen to less than sixteen years). 

According to the majority, this Court’s decision in Smith—applying the 

Miranda framework set forth in Davis, 512 U.S. at 459, 114 S. Ct. at 2355, to a 

juvenile’s unambiguous invocation of his right to have a parent present—indicates 

that a juvenile’s statutory right under subdivision (a)(3) can only be afforded as much 

protection as a juvenile’s constitutional Miranda rights. As such, the majority 

concludes that the Miranda rules also apply to juveniles who make ambiguous

statements regarding their right to have a parent present. I disagree. I agree with 

the Court of Appeals that by enacting N.C.G.S. § 7B-2101(a)(3), the legislature 

demonstrated its intent to afford a juvenile greater protection when attempting to 

invoke his or her right to have a parent present than when attempting to invoke his 

or her Miranda rights. Saldierna, ___ N.C. App. at ___, 775 S.E.2d at 333 (“[R]eview 

of the provisions of section 7B-2101 reveals an understanding by our General 

Assembly that the special right guaranteed by subsection (a)(3) is different from those 

rights discussed in Miranda and, in turn, reflects the legislature’s intent that law 
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BEASLEY, J., dissenting

-20-

enforcement officers proceed with great caution in determining whether a juvenile is 

attempting to invoke this right.”). 

Although this Court has held that a “juvenile’s right . . . to have a parent 

present during custodial interrogation[ ] is entitled to similar protection [as an adult’s 

right to have an attorney present],” Smith, 317 N.C. at 106, 343 S.E.2d at 521, it does 

not follow that the protections afforded to juveniles under subdivision 7B-2101(a)(3) 

are capped at, and therefore cannot exceed, those provided under Miranda. As 

previously discussed, Smith involved a situation in which a juvenile defendant 

unambiguously requested that his mother be brought to the police station before he 

was questioned. Id. at 102, 343 S.E.2d at 519. This Court held that in such 

circumstances, the Miranda framework of Davis applied and required law 

enforcement officers to immediately cease questioning. Id. at 106-07, 343 S.E.2d at 

521-22. This Court applied principles established under the Fifth and Sixth 

Amendments to the “resumption of custodial interrogation” under section 7B-2101.6 

Id. at 106, 343 S.E.2d at 521 (noting that the Miranda cases “are not controlling”). 

The “resumption of custodial interrogation” principles apply in the context of an 

unambiguous invocation of rights. See Davis, 512 U.S. at 459-61, 114 S. Ct. at 2355-

56 (holding that law enforcement officers must cease questioning after an 

 

6 Smith discussed a juvenile’s rights under to N.C.G.S. § 7A-595, which is the original 

codification of the rights afforded to juveniles in section 7B-2101. Section 7A-595 was repealed in 1999 

and recodified as part of the Juvenile Code. See Act of Oct. 22, 1998, ch. 202, secs. 5, 6, 1997 N.C. 

Sess. Laws (Reg. Sess. 1998) 695, 742, 809. The two sections are substantively the same. 
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BEASLEY, J., dissenting

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unambiguous invocation of the right to counsel and cannot resume questioning until

counsel is present or the defendant reinitiates communication). This Court did not 

address ambiguous statements, nor did it affirmatively hold that the protections 

afforded by subdivision (a)(3) are capped at those afforded to adults under Miranda. 

Therefore, I agree with the Court of Appeals’ conclusion that the “case law regarding 

invocation of the Miranda rights guaranteed by the federal Constitution and codified 

in subsections 7B-2101(a)(1), (2), and (4) does not control our analysis of a juvenile’s 

ambiguous statement possibly invoking the purely statutory right granted by our 

State’s General Assembly in section 7B-2101(a)(3).” Saldierna, ___ N.C. App. at ___, 

775 S.E.2d at 332. 

It is well established that juveniles differ from adults in significant ways and 

that these differences are especially relevant in the context of custodial interrogation. 

See, e.g., Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S. Ct. 2687, 2699 (1988)

(plurality opinion) (“Inexperience, less education, and less intelligence make the 

teenager less able to evaluate the consequences of his or her conduct while at the 

same time he or she is much more apt to be motivated by mere emotion or peer 

pressure than is an adult.”); Gallegos v. Colorado, 370 U.S. 49, 54, 82 S. Ct. 1209, 

1212 (1962) (stating that juveniles are “not equal to the police in knowledge and 

understanding of the consequences of the questions and answers being recorded and 

. . . [are] unable to know how to protect [their] own interests or how to get the benefits 

of [their] constitutional rights” (emphasis added)); Haley v. Ohio, 332 U.S. 596, 599-
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BEASLEY, J., dissenting

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600, 68 S. Ct. 302, 304 (1948) (plurality opinion) (“[W]e cannot believe that a lad of 

tender years is a match for the police in such a contest [as custodial interrogation]. . 

. . He needs someone on whom to lean lest the overpowering presence of the law, as 

he knows it, crush him.”). As discussed by the United States Supreme Court

[a] child’s age is far more than a chronological fact. 

It is a fact that generates commonsense conclusions about 

behavior and perception. Such conclusions apply broadly 

to children as a class. And, they are self-evident to anyone 

who was a child once himself, including any police officer 

or judge.

Time and again, this Court has drawn these 

commonsense conclusions for itself. We have observed that 

children generally are less mature and responsible than 

adults, that they often lack the experience, perspective, 

and judgment to recognize and avoid choices that could be 

detrimental to them, that they are more vulnerable or 

susceptible to . . . outside pressures than adults, and so on. 

Addressing the specific context of police interrogation, we 

have observed that events that would leave a man cold and 

unimpressed can overawe and overwhelm a lad in his early 

teens. Describing no one child in particular, these 

observations restate what any parent knows—indeed, 

what any person knows—about children generally.

Our various statements to this effect are far from 

unique. The law has historically reflected the same 

assumption that children characteristically lack the 

capacity to exercise mature judgment and possess only an 

incomplete ability to understand the world around them. 

J.D.B. v. North Carolina, 564 U.S. 261, 272-73, 131 S. Ct. 2394, 2403 (2011) (citations 

and internal quotation marks omitted). 

North Carolina courts have also acknowledged that “[j]uveniles are awarded 
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BEASLEY, J., dissenting

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special consideration in light of their youth and limited life experience.” State v. 

Oglesby, 361 N.C. 550, 557, 648 S.E.2d 819, 823 (2007) (Timmons-Goodson, J., 

dissenting) (citing In re Stallings, 318 N.C. 565, 576, 350 S.E.2d 327, 333 (1986)

(Martin, J., dissenting)); see In re K.D.L., 207 N.C. App. 453, 459, 700 S.E.2d 766, 771 

(2010) (“[W]e cannot forget that police interrogation is inherently coercive—

particularly for young people.” (citations omitted)), disc. rev. denied, 365 N.C. 90, 706 

S.E.2d 478 (2011). As discussed by Justice Harry C. Martin in his dissent to this 

Court’s decision in In re Stallings, “Juveniles are not, after all miniature adults. Our 

criminal justice system recognizes that their immaturity and vulnerability 

sometimes warrant protections well beyond those afforded adults. It is primarily for 

that reason that a separate juvenile code with separate juvenile procedures exists.” 

318 N.C. at 576, 350 S.E.2d at 333 (Martin, J., dissenting). Justice H. Martin goes 

on to explain that the Juvenile Code demonstrates “legislative intent to provide 

broader protections to juveniles.” See id. at 577, 350 S.E.2d at 333. Furthermore, “at 

least two empirical studies show that ‘the vast majority of juveniles are simply 

incapable of understanding their Miranda rights and the meaning of waiving those 

rights.’ ” Oglesby, 361 N.C. at 559 n.3, 648 S.E.2d at 824 n.3 (citation omitted); see 

Cara A. Gardner, Recent Developments, Failing to Serve and Protect: A Proposal for 

an Amendment to a Juvenile’s Right to a Parent, Guardian, or Custodian During a 

Police Interrogation after State v. Oglesby, 86 N.C. L. Rev. 1685, 1698-99 (2008) 

[hereinafter Failing to Serve and Protect] (“[R]esearch has revealed that only 20.9% 
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BEASLEY, J., dissenting

-24-

of juveniles understand the standard Miranda warnings . . . . [and] many d[o] not 

understand that [their right to an attorney means that] the attorney could actually 

be present during police questioning rather than at some later time. . . . This may 

indicate that juveniles in North Carolina also have difficulty understanding that they 

have the right to have a parent . . . present during an interrogation rather than at 

some later time.” (footnotes omitted)). Therefore, it is reasonable to believe that 

juveniles should be afforded greater protections when seeking to have a parent 

present. See Failing to Serve and Protect at 1695 (“The reason a juvenile in a 

custodial interrogation has a right to the presence of a parent, guardian, or custodian 

is presumably so that the adult may assist in protecting the juvenile’s rights.”). 

For these reasons, I would hold that when a juvenile makes an ambiguous 

statement relating to his or her statutory right to have a parent present during a 

custodial interrogation, law enforcement officers are required to ask clarifying 

questions to determine whether the juvenile desires to have his or her parent present 

before the juvenile answers any questions. Specifically, Miranda precedent is not 

binding on a juvenile’s statutory rights under N.C.G.S. § 7B-2101(a)(3), and I believe 

that a juvenile can be afforded greater protection than that afforded under Miranda

when attempting to invoke his or her statutory right. Additionally, as discussed 

above, juveniles are not able to fully understand the consequences of their actions 

and are more likely to submit to pressure. Most adults are nervous and apprehensive 

when stopped by a uniformed officer even in relatively trivial situations such as 
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BEASLEY, J., dissenting

-25-

routine traffic stops. Imagine then the apprehension, fear, and confusion of a 

teenager who finds himself under the power and authority of a law enforcement 

officer. Faced with this pressure, it stands to reason that many juveniles will be 

unable to unequivocally and unambiguously articulate their desire to have a parent 

present before police interrogation begins and will certainly lack the ability to 

appreciate the legal significance of this statutory protection. According to the 

majority, defendant “never gave any indication that he wanted to have [his mother] 

present for his interrogation, nor did he condition his interview on first speaking with 

her. Instead, defendant simply asked to call her.” This standard expects far too much 

of the typical juvenile being held in police custody and does not comport with our 

legislature’s intent to protect juveniles’ rights. 

I also disagree with the State’s argument that requiring law enforcement 

officers to ask clarifying questions would place an unreasonable burden on them. The 

burden, if any, would be slight. In this case, Detective Kelly could have asked a 

simple question to clarify defendant’s intent when he said, “Um, Can I call my mom?” 

or to ascertain his desire after he was unable to contact her, such as “Do you want 

your mother present before I ask you any questions?” Defendant’s response of “no” 

would leave the detective free to continue the custodial interrogation, whereas the 

response of “yes” would be considered an unambiguous invocation of his right, and 

the interrogation must therefore immediately cease. Regardless, “the structure of the 

juvenile code” is “persuasive evidence . . . that the legislature intended to favor 
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BEASLEY, J., dissenting

-26-

juvenile protections over law enforcement expediency.” In re Stallings, 318 N.C. at 

576, 350 S.E.2d at 333 (emphasis added). Thus, because the majority’s holding fails 

to take into account the significant differences between juveniles and adults and 

improperly caps the protection of juveniles’ statutory rights under section 7B-2101, I 

respectfully dissent.