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Bomb scare adjudication upheld, but restitution order reversed in part

State v. J.P., 2017AP1905, District 1, 9/5/18 (one-judge decision; ineligible for publication); case activity

J.P. was adjudicated delinquent for calling in two bomb scares to his high school. The court of appeals rejects his claims that the police lacked probable cause to arrest him and unlawfully searched his phone and that his confession was involuntary. However, the court agrees with J.P. that part of the restitution order is invalid.

Probable cause to arrest

Like all probable cause assessments, this one is fact specific. There were a total of four bomb scares at the high school, and the similarities in the language used; the fact that J.P. was seen going into the restroom right before the threats were discovered or called in; the fact that the caller sounded like “a young African American male, which fit J.P.’s description; and J.P.’s suspicious text messages to and contact with two female students, all led police to suspect J.P. was involved and provided probable cause to arrest and interrogate him for the offense. (¶¶5-12, 22-29).

Search of cell phone

When J.P. was arrested police seized his cell phone. His mother told police it was her phone, and in fact she had purchased the phone and paid the phone bills. She consented to the police search of the phone and, after obtaining them from J.P., provided police with the passwords for the phone and its iCloud account. Because she had both actual and apparent authority, her consent to the search of the phone makes the search lawful. (¶¶13-17, 30-37).

Voluntariness of confession

Another fact specific inquiry, determined by weighing a multitude of factors, see, e.g., State v. Hoppe, 2003 WI 43, 261 Wis. 2d 294, 661 N.W.2d 407. Among other factors, J.P.’s age, his intelligence, the short duration of the interviews, the fact he wasn’t handcuffed and was, during the first interrogation, given the phone call he requested show his admission during the second interview to making the bomb threats was voluntary. (¶¶13-18, 38-49).

Restitution

The juvenile court ordered J.P. to pay restitution to “lost instructional time” resulting from the bomb scares. (¶¶20, 51, 53). This was error. While that kind of special damage is permissible under the adult restitution statute, § 973.20(5)(a) and (b), and State v. Rouse, 2002 WI App 107, 254 Wis. 2d 761, 647 N.W.2d 286, it is not contemplated under the very different and much more limited language of the juvenile restitution statute, § 938.34(5)(a). (¶¶56-62).

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