Opposition Brief — Adam Douglas Densmore, Petitioner v. Colorado
Supreme Court briefSep 23, 2025
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NO. 24-1267
In the
Supreme Court of the United States
_______________________
ADAM DENSMORE,
v.
Petitioner,
THE PEOPLE OF THE STATE OF COLORADO,
Respondent.
________________
PATRICK FRAZEE,
v.
Petitioner,
THE PEOPLE OF THE STATE OF COLORADO,
Respondent.
________________
On Petition for Writ of Certiorari to the
Colorado Supreme Court
________________
BRIEF IN OPPOSITION
________________
PHILIP J. WEISER
Attorney General
SHANNON WELLS STEVENSON
Solicitor General
Counsel of Record
Office of the Colorado
Attorney General
1300 Broadway, 10th Floor
Denver, Colorado 80203
Shannon.Stevenson@coag.gov
(720) 508-6000
JILLIAN J. PRICE
Deputy Attorney
General
GRANT R. FEVURLY
Senior Assistant Attorney
General
BRITTANY LIMES ZEHNER
Assistant Solicitor General
GINA NYKERK
Assistant Attorney General
Counsel for Respondents
QUESTION PRESENTED
After Petitioners were arrested and detained for
murdering the mothers of their respective children,
the children were left in the custody of the state Department of Human Services (“DHS”).
As part of their routine job duties, child protection
caseworkers employed by DHS interviewed each Petitioner in jail to gather information about each child,
find safe placements for them, and ensure they received any necessary services. While DHS caseworkers have a statutorily mandated duty to report
instances of abuse and neglect to law enforcement,
neither of the caseworkers here coordinated their
questioning with law enforcement, reviewed police reports before questioning, or sought to assist law enforcement in developing evidence for a criminal
prosecution. Rather, their purpose when speaking
with Petitioners—as evidenced by the questions they
asked—was to ensure the children’s welfare. Because
these conversations were not “custodial interrogations,” neither caseworker provided advisements under Miranda v. Arizona, 384 U.S. 436 (1966).
The question presented is as follows:
Whether this Court should categorically expand
Miranda to non-law enforcement personnel who are
mandatory reporters, even where they do not act as
agents of law enforcement and no Fifth Amendment
privilege is implicated?
ii
TABLE OF CONTENTS
QUESTION PRESENTED .......................................... i
TABLE OF CONTENTS ............................................ ii
TABLE OF AUTHORITIES ...................................... iii
STATEMENT OF THE CASE ................................... 1
SUMMARY OF THE ARGUMENT ........................... 9
REASONS FOR DENYING THE PETITION ......... 11
I.
The Colorado Supreme Court decisions
reached the correct result. ................................ 11
A. Miranda does not categorically apply to
non-law enforcement personnel solely
because they are mandatory reporters. ..... 11
B. The Colorado Supreme Court’s test
ensures that those who act as agents of
law enforcement must provide Miranda
advisements. ............................................... 20
II. Petitioners’ cases are unsuitable vehicles for
addressing the question presented because
any errors were harmless beyond a
reasonable doubt. .............................................. 23
III. Petitioners’ purported split is not as deep as
they claim, and most courts follow Colorado’s
approach............................................................. 28
CONCLUSION ......................................................... 36
iii
TABLE OF AUTHORITIES
Cases
Adoption of Ursa,
224 N.E.3d 491 (Mass. App. Ct. 2023) .................. 35
Berkemer v. McCarty,
468 U.S. 420 (1984) .......................................... 12, 21
Blanton v. State,
172 P.3d 207 (Okla. Crim. App. 2007) .................. 30
Boles v. State,
887 S.E.2d 304 (Ga. 2023) ............................... 31, 33
Boynton v. Casey,
543 F.Supp. 995 (D. Me. 1982) .............................. 12
Buster v. Commonwealth,
364 S.W.3d 157 (Ky. 2012) .................................... 30
Buster v. Commonwealth,
406 S.W.3d 437 (Ky. 2013) .............................. 30, 31
Chapman v. California,
386 U.S. 18 (1967) .................................................. 24
Clark v. State,
40 So. 3d 531 (Miss. 2010) ..................................... 31
Commonwealth v. Adkinson,
813 N.E.2d 506 (Mass. 2004) ................................. 35
Commonwealth v. Hilton,
823 N.E.2d 383 (Mass. 2005) ................................. 35
Commonwealth v. Howard,
845 N.E.2d 368 (Mass. 2006) ........................... 34, 35
Commonwealth v. Saranchak,
866 A.2d 292 (Pa. 2005) ......................................... 29
iv
Estelle v. Smith,
451 U.S. 454 (1981) .............................. 13, 15, 17, 18
Harrington v. California,
395 U.S. 250 (1969) ................................................ 24
Howes v. Fields,
565 U.S. 499 (2012) .......................................... 16, 21
Illinois v. Perkins,
496 U.S. 292 (1990) ................................................ 12
Jackson v. Conway,
763 F.3d 115 (2d Cir. 2014) ................................... 34
L.G. v. People,
890 P.2d 647 (Colo. 1995) ...................................... 18
Maryland v. Shatzer,
559 U.S. 98 (2010) .................................................. 21
Massiah v. United States,
377 U.S. 201 (1964) ................................................ 35
Mathis v. United States,
391 U.S. 1 (1968) ...................... 13, 14, 15, 17, 18, 34
Michigan v. Chesternut,
486 U.S. 567 (1988) ................................................ 21
Miranda v. Arizona,
384 U.S. 436 (1966) .......................................... 11, 12
Ohio v. Clark,
576 U.S. 237 (2015) ................................................ 18
Penry v. Johnson,
532 U.S. 782 (2001) ................................................ 16
People v. Chastain,
733 P.2d 1206 (Colo. 1987) .................................... 12
v
People v. Keo,
253 Cal. Rptr. 3d 57 (Cal. Ct. App. 2019) ....... 29, 30
People v. Porterfield,
420 N.W.2d 853 (Mich. Ct. App. 1988) ................. 29
People v. Texidor,
896 N.Y.S.2d 234 (N.Y. App. Div. 2010) ............... 29
People v. Wilhelm,
822 N.Y.S.2d 786 (N.Y. App. Div. 2006) ......... 29, 33
Romero v. Colo. Dept. Of Hum. Servs.,
2018 COA 2 ............................................................ 22
Saranchak v. Beard,
616 F.3d 292 (3d Cir. 2010) ................................... 30
State v. Bernard,
31 So. 3d 1025 (La. 2010) .................... 15, 31, 32, 33
State v. Bolan,
271 N.E.2d 839 (Ohio 1971) .................................. 13
State v. Flower,
539 A.2d 1284 (N.J. Super. Ct. Law Div.
1987) ................................................................. 29, 33
State v. Gouin,
182 A.3d 28 (R.I. 2018) .......................................... 30
State v. Harper,
613 A.2d 945 (Me. 1992) ........................................ 30
State v. Hathorn,
395 So. 2d 783 (La. 1981) ...................................... 32
State v. Jackson,
116 N.E.3d 1240 (Ohio 2018) .................... 16, 20, 31
State v. Morrell,
424 S.E.2d 147 (N.C. Ct. App. 1993) ............... 29, 33
vi
State v. Olson,
449 N.W.2d 251 (S.D. 1989) .................................. 30
State v. Pearson,
804 N.W.2d 260 (Iowa 2011) ................................. 29
State v. Perry,
502 So. 2d 543 (La. 1986) ...................................... 32
State v. Phillips,
444 So. 2d 1196 (La. 1984) .................................... 32
State v. Tibiatowski,
590 N.W.2d 305 (Minn. 1999)................................ 30
Sullivan v. Louisiana,
508 U.S. 275 (1993) ................................................ 24
United States v. Birnstihl,
441 F.2d 368 (9th Cir. 1971).................................. 12
United States v. Graham-Wright,
715 F.3d 598 (6th Cir. 2013).................................. 16
United States v. Parr-Pla,
549 F.2d 660 (9th Cir. 1977).................................. 12
Vega v. Tekoh,
597 U.S. 134 (2022) ................................................ 12
Vroegh v. Iowa Dep’t of Corrs.,
972 N.W.2d 686 (Iowa 2022) ................................. 21
Wilkerson v. State,
173 S.W.3d 521 (Tex. Crim. App. 2005) ... 17, 18, 19,
20, 21, 31, 32
Statutes
Colo. Rev. Stat. § 19-3-304 (2025) ............................ 19
Colo. Rev. Stat. § 19-3-307(3) (2025)........................ 19
vii
Colo. Rev. Stat. § 19-3-308(5.5) (2025)..................... 19
Other Authorities
2 Wayne LaFave et al., Crim. Proc. § 6.10(c)
(4th ed. Nov. 2024 update) .................................... 13
Regulations
Okla. Admin. Code § 340:75-3-220 (2024) ............... 18
STATEMENT OF THE CASE
Adam Densmore. Densmore and the victim, Ashley Mead, lived together in Boulder, Colorado with
their thirteen-month-old daughter, W.M. Pet. App.
24a. By late January 2017, Mead told Densmore she
no longer wanted to be in a relationship. TR 04-12-18,
pp 80-83, 127-28.
Mead was last seen alive in Boulder on the evening of February 12. TR 04-19-18, p 235:16-20. That
night, Densmore and W.M. drove from Colorado to his
parents’ house in Louisiana, arriving on February 13.
Pet. App. 24a-25a; TR 04-16-18, pp 39:11-18, 45-56,
66-69; TR 04-17-18, pp 112-13; EX Jury Trial, EX 101,
pp 88-118. The next day, Densmore and W.M. were
alone at his parents’ house for several hours and then
drove to his grandmother’s house in Arkansas that afternoon. See TR 04-16-18, pp 70-73; TR 04-17-18, pp
121-22, 180-84, TR 04-18-18, pp 76-77, 81-82, 85:4-5;
EX Jury Trial, EX 101, pp 118-20. On February 15,
Densmore and W.M. began driving back to Colorado.
TR 04-16-18, pp 74-76; EX Jury Trial, EX 101, pp 12141.
Meanwhile, Mead’s work supervisor reported her
missing on February 14. Pet. App. 24a. As Densmore
was driving through Oklahoma on February 15, he
called the investigating Colorado detective and told
him that on February 12, he and Mead had “the worst
argument they had ever had.” Pet. App. 25a.
The detective alerted the local authorities that
Densmore was in Oklahoma, and they arrested him.
Pet. App. 25a.
Because W.M. was with Densmore and no other
caregiver was readily available, law enforcement
2
called the Oklahoma DHS. Pet. App. 5a. Caseworker
Jessica Punches took custody of W.M. and began trying to locate an appropriate placement for her. Pet.
App. 6a. She briefly talked to the Colorado detective,
who told her that Densmore was being held for a suspected custody violation, Mead’s whereabouts were
unknown, and they did not know if Mead was alive.
Pet. App. 6a.
Punches interviewed Densmore in jail to learn
more about W.M. and find an appropriate placement
for her. Pet. App. 6a. Law enforcement had previously
given Densmore two Miranda advisements, and he
had invoked his right to counsel. Pet. App. 6a. Punches
did not give Densmore a Miranda advisement. Pet.
App. 6a. During Punches’s interview, a task force officer sat behind Punches for her “safety” and at her
request; the officer did not participate in the interview. Pet. App. 7a.
Punches asked Densmore if he knew where Mead
was, because she wanted to place W.M. with a parent
if one was available. Pet. App. 7a. Densmore told
Punches he had last seen Mead the previous Sunday,
when they had fought. Pet. App. 7a. When Punches
asked if the fight was physical, Densmore said he had
slapped Mead. Pet. App. 7a.
Meanwhile, a gas station attendant discovered a
suitcase containing a female torso, later identified as
Mead’s, in the gas station’s dumpster. Pet. App. 25a;
TR 04-19-18, pp 30-38; Env., Trial, EXS 229-30. Surveillance footage showed Densmore placing something
resembling the suitcase in the dumpster earlier in the
day. Pet. App. 25a. Officers learned that Densmore
had stopped at several gas station dumpsters between
3
Arkansas and Oklahoma, but no other remains were
ever recovered. Pet. App. 25a. At Densmore’s parents’
house, law enforcement later found a reciprocating
saw with blood on the blade, which DNA testing confirmed was Mead’s. Pet. App. 25a. DNA testing also
showed Densmore’s DNA on the saw’s handle. TR 0420-18, pp 20-23, 85-87, 97:14-24; EX Jury Trial, EX
331, p 398.
The day after her first conversation with
Densmore, after learning that law enforcement found
Mead’s torso and that Densmore was being held on
suspicion of first-degree murder, Punches called
Densmore on the telephone for a “child safety meeting.” Pet. App. 8a. She did not provide a Miranda advisement before this call. Pet. App. 8a. During this
conversation, Densmore said there had not been domestic violence between him and Mead, and Punches
confronted him with his prior statement that he had
slapped Mead during their fight. Pet. App. 8a-9a.
Punches created a report documenting her conversation (excluding information from the child safety
meeting, which the parties agreed to treat as confidential) and shared it with the district attorney. Pet. App.
9a. Several months later, Punches shared a copy of the
recorded interview with a Colorado detective when the
detective requested it; Punches was initially unsure if
she could share the information without a court order
but did so after her supervisor indicated she could
share the requested information. Pet. App. 9a-10a.
Densmore moved to suppress the statements he
made to Punches because she did not give him a Miranda advisement. See Pet. App. 78a-81a. The trial
4
court denied the motion on the grounds that Punches
was not a law enforcement agent. Pet. App. 78a-81a.
Densmore was convicted of first-degree murder,
tampering with a deceased human body, tampering
with physical evidence, and abuse of a corpse. Pet.
App. 10a-11a.
Patrick Frazee. Frazee dated the victim, Kelsey
Berreth, for about three years and in October 2017
they had a daughter together, K.F. Pet. App. 105a.
Frazee simultaneously had an on-and-off affair with
Krystal Lee. Pet. App. 105a. Lee lived in Idaho but frequently visited Frazee in Colorado. Pet. App. 105a.
In September and October 2018, Frazee asked Lee
three separate times to kill Berreth. Pet. App. 105a.
Lee refused. Pet. App. 105a.
On Thanksgiving Day 2018, Frazee drove to Berreth’s condo. Pet. App. 105a-106a. Inside, Frazee
blindfolded Berreth using a ruse that he wanted her
to guess the smell of scented candles. Pet. App. 106a.
He then bludgeoned her to death with a baseball bat.
Pet. App. 106a. Afterwards, he took Berreth’s cell
phone, put Berreth’s body in a black plastic tote in the
back of his truck, washed his clothes, and then drove
back home with K.F. and had Thanksgiving dinner
while Berreth’s corpse sat in his truck bed. Pet. App.
106a.
That night, Frazee called Lee repeatedly and told
her she had a “mess” to clean up and to come to Colorado right away. Pet. App. 106a. Lee drove from Idaho
to Berreth’s Colorado condo, and when she arrived,
saw blood everywhere. Pet. App. 106a. She cleaned the
condo with bleach for several hours and filled six trash
bags with bloody items. Pet. App. 106a. Afterwards,
5
Frazee confessed to Lee what he had done. TR 11-0619, pp 246:9-18, 247:8-25.
Frazee and Lee then retrieved the tote containing
Berreth’s body, placed it and the trash bags in a large
water trough filled with wood pallets on Frazee’s
mother’s ranch, doused everything with gasoline, and
set it on fire. Pet. App. 106a.
Lee returned to Idaho with Berreth’s cellphone
and sent a text from it to Berreth’s boss, telling him
she would not be at work the next week. Pet. App.
106a-107a. She then burned Berreth’s phone. Pet.
App. 107a.
When law enforcement confronted Lee about Berreth’s disappearance, Lee eventually confessed. Pet.
App. 107a. She showed law enforcement the location
where they burned Berreth’s body, and law enforcement found melted black plastic and a human tooth
fragment. TR 11-08-19, pp 198-203, 212; TR 11-12-19,
pp 222-229. She also took law enforcement to Berreth’s condo to show them where she cleaned up blood,
and law enforcement found small traces of blood, including blood soaked into the living room floorboards.
Pet. App. 115a. After pleading guilty to tampering
with a deceased human body, Lee ultimately testified
against Frazee at trial. Pet. App. 107a. Frazee was arrested for Berreth’s murder on December 21, 2018.
Pet. App. 88a. After Frazee’s arrest, a Colorado DHS
caseworker, Mary Longmire, took legal custody of K.F.
6
and began determining an appropriate placement for
her. 1 Pet. App. 88a.
Five days after Frazee’s arrest, Longmire interviewed him at the jail. Pet. App. 89a. Longmire did not
notify the police department that she planned to interview Frazee, and they did not ask her to interview
him. Pet. App. 89a. She knew from law enforcement
and the news that Frazee was arrested for Berreth’s
murder and that Berreth had been missing since the
Thanksgiving time period, but she did not know specific details. Pet. App. 89a; Pet. App. 155a; TR 08-2319, pp 29-30, 54. She was not a law enforcement officer
and had not been trained in law enforcement interrogation techniques. Pet. App. 89a; Pet. App. 157a.
Longmire opened the conversation by telling
Frazee that given the charges against him, she would
understand if he did not want to answer some of her
questions. But she did not give him a formal Miranda
advisement. Pet. App. 89a-90a.
Longmire asked questions about K.F. and her development, as well as K.F.’s family history, K.F.’s relationship with her parents, and Frazee’s relationship
with Berreth. Pet. App. 90a.
Frazee told Longmire that when he picked K.F. up
the day before Thanksgiving, Berreth was “heated”
during a discussion about their relationship, and they
decided to “go[] their separate ways.” TR 11-14-19, pp
1 While Petitioners mention that Longmire testified at trial
that she was asked to “assess the allegations” against Frazee,
they neglect to mention that it was her supervisor, not law enforcement, who asked her to do so. TR 11-14-19, p 55:17-21.
7
64-66. He picked K.F. up as arranged on Thanksgiving, and on Friday and Saturday Berreth asked Frazee
to keep K.F. TR 11-14-19, pp 66-68. They had another
“heated” conversation on Saturday afternoon where
Berreth “lost it,” and he decided to keep K.F. “until the
storm blew over.” TR 11-14-19, pp 68-69. He got a text
from Berreth saying “Do you even love me?” and responded, “Of course I do,” but received no reply. TR 1114-19, pp 70-71.
Longmire provided portions of an “assessment
summary” to the district attorney’s office, after consulting with the county attorney about whether she
was required to disclose her assessment documentation. 2 TR 08-23-19, pp 49-50, 53-54; CF, pp 758-59.
Frazee moved to suppress his statements to Longmire. The trial court denied the motion, concluding
that Miranda advisements were not required because
Longmire was not an agent of law enforcement. Pet.
App. 152a-160a.
Frazee was convicted of two counts of first-degree
murder, three counts of solicitation to commit first-degree murder, and tampering with a deceased human
body. Pet. App. 94a-95a.
2 Petitioners suggest Longmire disclosed portions of her assess-
ment summary because “it was, in her words, ‘a joint investigation.’” Pet. 11. That characterization is inaccurate. Rather,
Longmire testified that, generally speaking, if DHS concludes an
allegation of abuse or neglect is founded, they “are required to
forward those to the DA’s office, and to law enforcement if there’s
been a joint investigation.” TR 08-23-19, p 53:13-17. She did not
testify that there was a joint investigation in Frazee’s case.
8
Colorado Appellate Proceedings. After the Colorado Court of Appeals affirmed Petitioners’ convictions, the Colorado Supreme Court granted
Petitioners’ petitions for writs of certiorari and unanimously affirmed both cases. Densmore v. People, 2025
CO 6, ¶¶ 1-3; Pet. App. 4a, 22a; Frazee v. People, 2025
CO 7, ¶¶ 1-3; Pet. App. 87a-103a.
The court first rejected Petitioners’ request to
adopt a bright-line rule “that whenever a caseworker
conducts a custodial interrogation that involves current or unsolved allegations that a reasonable caseworker should know are criminal, Miranda applies.”
Densmore, ¶ 1, Pet. App. 4a; accord Frazee, ¶¶ 1-3; Pet.
App. 87a-88a. The court reasoned that Petitioners had
“offered no persuasive reason for extending Miranda
to custodial interrogations conducted by people who
are neither law enforcement officers nor agents of law
enforcement.” Densmore, ¶ 32; Pet. App. 16a, accord
Frazee, ¶ 38; Pet. App. 99a-100a.
The court also declined Petitioner’s alternative argument to limit its agency analysis to “objective” factors that did not include the interrogator’s intent to
assist law enforcement. Densmore, ¶ 33; Pet. App. 16a,
accord Frazee, ¶¶ 31-32; Pet. App. 97a. It concluded
this limitation was not warranted by Colorado caselaw
or “any other case of which we are aware,” and that
Petitioners’ proposed approach “would, in some cases,
preclude consideration of relevant facts, contrary to a
totality of the circumstances analysis.” Densmore, ¶
33; Pet. App. 16a.
Rather, the court articulated a non-exhaustive list
of factors to consider, such as the investigator’s job duties; whether the investigator was a law enforcement
9
officer; the investigator’s purpose; whether the police
directed, controlled, or participated in the investigation or gave input into the questioning; and the extent
of the investigator’s contact with police before beginning the investigation. Densmore, ¶¶ 30-31; Pet. App.
14a-15a; Frazee, ¶ 31; Pet. App. 96a-97a. Applying
these factors to Petitioners’ cases, the court determined that neither caseworker acted as an agent of
law enforcement and affirmed the convictions. 3
Densmore, ¶¶ 46-47; Pet. App. 21a, Frazee, ¶¶ 2-3; Pet.
App. 87a-88a.
SUMMARY OF THE ARGUMENT
This Court should deny the petition for certiorari
because: (1) the case below was properly decided; (2)
this case is an unsuitable vehicle for deciding the question presented; and (3) the alleged split, which is minimal, does not warrant this Court’s intervention.
First, the Colorado Supreme Court reached the
correct result. This Court has never categorically expanded Miranda to apply to non-law enforcement personnel based solely on their status as mandatory
reporters, nor does this Court’s precedent support
such an extension. Rather, the totality-of-the-circumstances framework adopted by Colorado is consistent
3 Thus, the court did not reach the question of whether Frazee
was in Miranda custody (the trial court and Colorado Court of
Appeals both concluded he was not). Pet. App. 101a, 103a, 123a127a, 160a. And given its conclusion that Punches was not a law
enforcement agent, the trial court did not reach Densmore’s arguments that his statements were involuntary. Pet. App. 78a,
81a-83a. Accordingly, if this Court grants the petition and ultimately reverses, a remand would be necessary to resolve these
outstanding issues.
10
with this Court’s disapproval of bright-line rules in the
Miranda context as well as how courts historically
have evaluated questions of agency. Further, this totality approach adequately identifies those situations
where an individual acts as an agent of law enforcement, and is thus subject to Miranda’s requirements,
without unnecessarily encompassing those who are
not. Indeed, Petitioners’ desired categorial approach
would have significant and dire consequences for caseworkers to gather information about, and act in the
best interests of, the very children they are meant to
protect.
Second, this case is an unsuitable vehicle because
any errors were harmless beyond a reasonable doubt.
In both cases, the challenged statements were cumulative of properly admitted statements made to others
and were less prejudicial than many of those properly
admitted statements. Plus, the evidence of guilt in
both cases was overwhelming. Petitioners’ convictions
were surely unattributable to any error in admitting
the statements made to the child protection caseworkers.
Third, courts are not deeply divided on this issue.
When examining the twelve cases cited by the Petitioners, nine use a totality of the circumstances analysis—as Colorado did—to resolve whether the
caseworker should have given Miranda advisements.
Only two arguably turn on a caseworker’s duty to report. When the jurisdictional analysis expands, an additional nine states favor a factor-based approach.
This is hardly the entrenched divide Petitioners claim,
and there is no need for this Court’s intervention.
11
REASONS FOR DENYING THE PETITION
I.
The Colorado Supreme Court decisions
reached the correct result.
This Court should decline review because the decision below was correct. Miranda, by its plain language, does not categorically apply to non-law
enforcement personnel such as child protection caseworkers, and the Colorado Supreme Court’s factorbased, totality-of-the-circumstances test appropriately ensures that those who act as agents of law enforcement must provide Miranda advisements.
A. Miranda does not categorically apply to
non-law enforcement personnel solely
because they are mandatory reporters.
The essence of Petitioners’ argument is that the
requirements of Miranda apply to all child protection
caseworkers because of their statutorily mandated
duty to report known or suspected child abuse or neglect to law enforcement. Pet. 1-3, 25-30. They are incorrect.
To uphold the Fifth Amendment privilege against
self-incrimination, officers must provide certain advisements to suspects prior to a “custodial interrogation.” Miranda, 384 U.S. at 444. “Custodial
interrogation” is “questioning initiated by law enforcement officers after a person has been taken into custody.” Id. (emphasis added). The Miranda advisement
“was meant to preserve the privilege during ‘incommunicado interrogation of individuals in a police-dominated atmosphere,’” which is said to generate
“‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel
him to speak where he would not otherwise do so
12
freely.’” Illinois v. Perkins, 496 U.S. 292, 296 (1990)
(citing Miranda, 384 U.S. at 445, 467) (emphasis
added). “Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in
those types of situations in which the concerns that
powered the decision are implicated.” Berkemer v.
McCarty, 468 U.S. 420, 437 (1984).
Miranda, by its own terms, applies only to the actions of law enforcement officials. 384 U.S. at 444; see,
e.g., Vega v. Tekoh, 597 U.S. 134, 141-142 (2022);
United States v. Birnstihl, 441 F.2d 368, 370 (9th Cir.
1971); People v. Chastain, 733 P.2d 1206, 1213 (Colo.
1987).
This Court has never expanded Miranda to categorically apply to non-law enforcement officers, even
those who are mandatory reporters. Cf. Perkins, 496
U.S. at 297 (“We reject the argument that Miranda
warnings are required whenever a suspect is in custody in a technical sense and converses with someone
who happens to be a government agent.”). Nor does
questioning by non-law enforcement personnel implicate the concerns underpinning that decision. See
Berkemer, 468 U.S. at 435-36; cf. United States v.
Parr-Pla, 549 F.2d 660, 663 (9th Cir. 1977) (“Miranda
does not apply to purely private interrogation.”);
Boynton v. Casey, 543 F.Supp. 995, 997 & n.4 (D. Me.
1982) (declining to extend Miranda to questioning by
school officials “in furtherance of their disciplinary duties”).
Perhaps recognizing the limitations of Miranda’s
language, Petitioners do not appear to assert that
child protection caseworkers are law enforcement officers falling within the ambit of that opinion. Nor
13
could they, given the distinct duties and responsibilities of a caseworker. See Densmore, ¶ 45 (“[C]hild welfare specialists . . . serve a critical role that is entirely
separate and distinct from any criminal proceedings,
namely, ensuring child safety and finding an appropriate placement for a child.”); Pet. App. 21a. While police
officers interview suspects to gather evidence against
the suspect at a future criminal trial, child protection
caseworkers interview parents to serve their children’s immediate needs, and ultimately the children’s
best interests. Thus, Miranda’s language itself undercuts Petitioners’ argument.
Rather, Petitioners seize on court decisions applying Miranda’s procedural protections to the agents of
law enforcement (thus preventing officers from circumventing Miranda requirements by directing third
parties to act on their behalf). See, e.g., Densmore, ¶
29; Pet. App. 14a; State v. Bolan, 271 N.E.2d 839, 842
(Ohio 1971); cf. 2 Wayne LaFave et al., Crim. Proc. §
6.10(c) (4th ed. Nov. 2024 update) (noting that “courts
have generally held that government agents not primarily charged with enforcement of the criminal law
are under no obligation to comply with Miranda”).
Within this agency framework, Petitioners rely on
Mathis v. United States, 391 U.S. 1 (1968), and Estelle
v. Smith, 451 U.S. 454 (1981), to argue that the agentof-law-enforcement analysis is “objective” only and
does not consider the subjective intentions of the purported agent, here the child protection caseworkers.
Pet. 25-30.
But neither Mathis nor Estelle support the weight
Petitioners place on them. This Court has subsequently limited those opinions, and, in any event, both
14
are factually distinguishable. And even if they have
some application here, they still do not support Petitioners’ ultimate conclusion that a duty to report is the
only dispositive factor.
In Mathis, a tax investigator for the Internal Revenue Service (“IRS”) interviewed the defendant in connection with a tax investigation while the defendant
was in state prison for a separate offense. Notably, the
investigator asked the defendant to sign a waiver of
the statute of limitations on his tax returns. 391 U.S.
at 2-4 & n.2. The defendant contended that the statements were inadmissible under Miranda. Id. at 3. The
prosecution argued Miranda was inapplicable because: (1) these questions were asked as part of a “routine tax investigation where no criminal proceedings
might even be brought,” and (2) the defendant was incarcerated for an “entirely separate offense” and had
not “been put in jail by the officers questioning him.”
Id. at 4.
This Court rejected these arguments, concluding
the differences were “too minor and shadowy” to justify departing from Miranda “with reference to warnings to be given to a person held in custody.” Id. This
Court noted that, while tax investigations could be initiated for the “purpose of a civil action rather than
criminal prosecution,” such investigations “frequently
lead to criminal prosecutions, just as the one here did”
several days after the agent’s last visit to question the
defendant. Id. In these circumstances, this Court declined to conclude that “tax investigations are immune
from the Miranda requirements for warnings to be
given a person in custody.” Id.
15
In Estelle, the trial court sua sponte ordered a psychiatrist to conduct a competency examination of an
in-custody defendant during an existing criminal proceeding. 451 U.S. at 456-57. Despite being initially
designated by the court “to conduct a neutral competency examination,” the psychiatrist later “testified for
the prosecution at the penalty phase [of the trial] on
the crucial issue of [the defendant’s] future dangerousness,” which was based on information derived from
the defendant’s competency examination (and which
specifically discussed the defendant’s “account of the
crime”). Id. at 464, 467. Because the psychiatrist’s role
changed and he had essentially become “like that” of
an agent of law enforcement, this Court found a Fifth
Amendment violation, in part, because of the failure
to administer the defendant a Miranda advisement
prior to the examination. Id. at 467-69.
Neither Mathis or Estelle delineated a broadly applicable framework for determining when an individual acts as an agent of law enforcement for purposes
of Miranda, nor, in light of that fact, did they indicate
that only “objective” factors are pertinent to the analysis. 4 See, e.g., State v. Bernard, 31 So. 3d 1025, 1030
(La. 2010) (noting that this Court in Mathis “was not
called upon to decide whether the IRS employee was a
4 The soundness of both opinions with respect to the applicabil-
ity of Miranda is also questionable given the brevity of its reasoning and the lack of necessity to address the issue, respectively.
See Mathis, 391 U.S. at 5-8 (White, J., dissenting) (characterizing
the case as an “unexplained extention [sic]” of Miranda; Estelle,
451 U.S. at 474-76 (Rehnquist, J., concurring) (noting that it was
unnecessary to consider Fifth Amendment issues given resolution of the Sixth Amendment issue in that case).
16
‘law enforcement agent,’ as the government apparently ceded that point” (emphasis in original)); State
v. Jackson, 116 N.E.3d 1240, 1246 (Ohio 2018) (same);
United States v. Graham-Wright, 715 F.3d 598, 602
(6th Cir. 2013) (noting that Estelle applies to capital
sentencing proceedings and its holding “was limited to
‘the “distinct circumstances” of that case’” (citation
omitted)). Petitioners’ attempts to extrapolate such a
framework from these decisions thus prove too much.
Additionally, this Court has limited the reach of
both Mathis and Estelle in the years since they were
announced. For instance, in Howes v. Fields, 565 U.S.
499, 506-07 & n.4 (2012), this Court held that “the
holding in Mathis is simply that a prisoner who otherwise meets the requirements for Miranda custody is
not taken outside the scope of Miranda by either of the
two factors on which the Court of Appeals had relied,”
namely that “[a] criminal investigation had not been
commenced at the time of the interview, and the prisoner was incarcerated for an ‘unconnected offense.’”
And in Penry v. Johnson, 532 U.S. 782, 795 (2001), this
Court observed that “our opinion in Estelle suggested
that our holding was limited to the ‘distinct circumstances’ presented there,” and noted that “we have
never extended Estelle’s Fifth Amendment holding beyond its particular facts.” As these cases demonstrate,
the holdings in Mathis and Estelle are narrow in scope
and necessarily tethered to the particular factual circumstances presented by those cases.
Finally, Mathis and Estelle are also factually distinguishable. Contrary to Petitioners’ contentions,
both cases are “premised upon the fact that the primary purpose of the state-agent interviewer was the
17
collection of evidence to be used against the interviewee in a criminal prosecution.” Wilkerson v. State,
173 S.W.3d 521, 527 n.17 (Tex. Crim. App. 2005); accord Densmore, ¶¶ 41, 44; Pet. App. 18a-20a. Both
cases considered and answered different questions
than whether a child protection caseworker was subject to Miranda’s requirements, or whether a duty to
report brought them within Miranda’s orbit. Unlike
here, the IRS agent in Mathis worked for the same organization that launched the criminal investigation of
the defendant, thereby blurring any non-law enforcement-related purpose on the part of the agent, as the
investigations were necessarily intertwined. See 391
U.S. at 6 n.2 (White, J., dissenting). And, unlike Estelle, the child protection caseworkers were not ordered by the court to interview Petitioners without
their or their attorneys’ consent; thus, any concerns
about the use of compelled statements are not present
here. 451 U.S. at 467-68.
Accordingly, Mathis and Estelle are both legally
and factually distinguishable from Petitioners’ cases
and do not support the proposition that an “objective”
only agency analysis governs the application of Miranda to non-law enforcement personnel.
But even to the extent Mathis and Estelle do inform the agency analysis to some extent, they do not
support Petitioners’ logical leap that a statutory duty
to report is the dispositive factor. Indeed, neither case
premised its holding on a duty to report. In Mathis,
only the dissent alluded to a duty to report and even
still would have concluded that Miranda did not apply. 391 U.S. at 6 n.2 (White, J., dissenting). And this
18
Court expressly noted in Estelle that its Fifth Amendment concerns did not extend to all court-ordered examinations, which necessarily would involve a duty to
report to the court on the part of the examiner. 451
U.S. at 469 n.13.
Moreover, in the Confrontation Clause context,
this Court has disclaimed the mere status of a duty to
report as transforming the purpose of an interview
into a “law enforcement mission aimed primarily at
gathering evidence for a prosecution,” even if such
duty “had the natural tendency to result in [the defendant’s] prosecution.” Ohio v. Clark, 576 U.S. 237,
249-50 (2015). This conclusion is especially apt here
where the pertinent caselaw, statutes, and regulations
make clear that the overriding purpose of a child protection caseworker’s role is the best interest and safety
of the child, not criminal prosecution and punishment.
See L.G. v. People, 890 P.2d 647, 654-55 (Colo. 1995);
Okla. Admin. Code § 340:75-3-220; cf. Wilkerson, 173
S.W.3d at 529 (noting that child protection caseworkers and police officers generally “run on separate parallel paths,” with the former focused on “investigating
family placement and safety matters,” and the latter
focused on “investigating criminal matters”).
And despite Petitioners’ assertion that objective
factors guide the analysis, they in actuality focus on
only one factor—a duty to report—and in so doing create a binary, bright-line rule that subsumes any other
considerations or concerns. In other words, a duty to
19
report is both the beginning and end of their analysis. 5
Under Petitioners’ view, child protection caseworkers
are always, and categorically, per se agents of law enforcement. While Petitioners focus their argument on
child protection caseworkers, their reasoning would
appear to apply equally to any mandatory reporter of
known or suspected criminal activity, see, e.g., Colo.
Rev. Stat. § 19-3-304 (listing physicians, school officials, counselors, and numerous others as mandatory
reporters of child abuse or neglect), which would exponentially expand the scope of Miranda under the guise
of a “duty to report” litmus test that is absent from
Miranda’s language itself. See Wilkerson, 173 S.W.3d
at 529 (“This is clearly not the law, and it was certainly not the purpose of the prophylactic Miranda
warnings.”).
In sum, neither the language of Miranda itself nor
Mathis or Estelle support Petitioners’ argument for either an “objective” only agency analysis or the effective categorical expansion of Miranda to child
protection caseworkers. Accordingly, the Colorado Supreme Court did not run afoul of this Court’s existing
precedent.
5 In Colorado, for instance, child protection caseworkers must
report known or suspected child abuse or neglect to law enforcement. C.R.S. §§ 19-3-307(3); -308(5.5). The Colorado legislature
has also indicated its intent that law enforcement agencies and
county DHS offices develop and implement cooperative agreements to coordinate the duties of each agency in child abuse or
neglect investigations with a focus on ensuring “the best protection for the child,” and to provide for the potential of one agency
assisting the other as well as joint investigations by both agencies. § 19-3-308(5.5).
20
B. The Colorado Supreme Court’s test ensures that those who act as agents of law
enforcement must provide Miranda advisements.
Although Miranda does not categorically apply to
child protection caseworkers, that does not mean caseworkers can never be agents of law enforcement, and
therefore subject to Miranda’s requirements. Rather,
that determination must be made on a case-by-case
basis considering the totality of the circumstances,
which includes both objective and subjective factors.
See Densmore, ¶¶ 32-34; Pet. App. 15a-16a; Wilkerson,
173 S.W.3d at 529 (“The term ‘agency’ denotes a consensual relationship which exists between two persons
or parties where one of them is acting for or on behalf
of the other.” (emphases added)).
The totality framework adopted by the Colorado
Supreme Court strikes an appropriate balance by ensuring that those actually acting as agents of law enforcement are required to abide by Miranda without
unnecessarily subjecting all child protection caseworkers to its requirements. Indeed, considering the
innumerable potential factual permutations involved
when a child protection caseworker interviews a parent in custody—which may or may not involve underlying criminal behavior of child abuse or neglect—a
flexible approach that can weigh factors differently
based on the particular circumstances of the case is
well-founded. See, e.g., Jackson, 116 N.E.3d at 1245
(“[W]hether someone is acting as an agent of law enforcement is dependent upon the unique circumstances of each case.” (citation omitted)); cf., e.g.,
Vroegh v. Iowa Dep’t of Corrs., 972 N.W.2d 686, 707
21
(Iowa 2022) (“Whether a party serves as another’s
agent is ordinarily a question of fact.”).
Such an approach is consistent with this Court’s
Miranda jurisprudence, which has long eschewed
bright-line rules for determining when Miranda applies. See, e.g., Howes, 565 U.S. at 506-08 (rejecting
categorial rule for determining when a prisoner is in
custody for purposes of Miranda); Maryland v.
Shatzer, 559 U.S. 98, 112 (2010) (same); Berkemer, 468
U.S. at 435-42 (rejecting categorical application of Miranda to traffic stops); cf. Michigan v. Chesternut, 486
U.S. 567, 572-74 (1988) (stating no bright-line rule applicable to all investigatory pursuits can be fashioned).
It is also consistent with the well-established
framework for determining agency, which considers
the relationship between the parties and the level of
control exercised by the principal over the agent. See,
e.g., Vroegh, 972 N.W.2d at 707 (an agency relationship exists when there is (1) “manifestation of consent
by one person, the principal, that another, the agent,
shall act on the former’s behalf and subject to the former’s control,” and (2) “‘consent by the latter to so act’”
(citation omitted)) cf. Wilkerson, 173 S.W.3d at 529
(“The law does not . . . presume an agency relationship.”).
Further, contrary to Petitioners’ contentions, interviews by child protection caseworkers—who are not
police officers, do not investigate crimes, and do not
have the authority to arrest or detain anybody—do not
create either the same coercive interrogation atmosphere at which Miranda was directed or the same risk
of “exposure” as if the interview had been conducted
22
by law enforcement, further illustrating why Petitioners’ bright-line approach is ill-suited to these types of
interactions. 6 Nor is the “pressure” on a defendant
even more “amplified” because of the risk of losing access to a child when a caseworker conducts an interview in custody, Pet. 29, because, by that point, the
defendant has already lost custody of, and access to,
their child due to the fact of the detention or incarceration.
Finally, if Miranda were categorically applied to
caseworkers as Petitioners desire, the consequences
could be dire. It could result in confusion or a catch-22
for defendants, given that, in Colorado, for instance,
an invocation of the right to remain silent can be used
against a respondent parent in a dependency and neglect proceeding. See Romero v. Colo. Dept. Of Hum.
Servs., 2018 COA 2, ¶¶ 37-57. Thus, a categorical Miranda application could pit the defendants’ best interests in their criminal cases against their best interests
with respect to their children in civil proceedings. Perhaps most importantly, categorically requiring Miranda advisements from caseworkers will inevitably
hamper their ability to gather time-sensitive and vital
6 Petitioners also insinuate, in an attempt to minimize the real-
world impact of their position, that caseworkers can simply
choose to ignore Miranda’s requirements (assuming Miranda applies) at the expense of sacrificing in a criminal trial any statements falling within the scope of a duty to report. Pet. 29-30. Not
only does this position demonstrate that Petitioners believe the
effects of applying Miranda to caseworkers will likely be detrimental—otherwise, why would caseworkers need to ignore Miranda’s requirements in the first place—but it is also not credible
to believe caseworkers would routinely knowingly and willingly
choose to ignore the requirements of the law.
23
information about a child—e.g., whether a child suffers from severe allergies, requires life-saving medication, or needs a specific nutritional regimen—from
those that know the child best, should and when a defendant chooses to remain silent. And this concern is
even more pronounced in cases like Petitioners’, where
no other parent was available and the children were
too young to communicate this information themselves.
In sum, the Colorado Supreme Court’s totality
test adequately identifies those individuals who are
acting as agents of law enforcement and should be subject to Miranda’s requirements and is consistent both
with this Court’s disapproval of bright-line rules in
this context and agency analyses historically. Moreover, categorial application of Miranda to child protection caseworkers would have significant and dire
consequences. Further review is therefore unnecessary.
II. Petitioners’ cases are unsuitable vehicles for
addressing the question presented because
any errors were harmless beyond a reasonable doubt.
Even if Petitioners’ statements should have been
suppressed, these alleged errors were harmless beyond a reasonable doubt for three reasons. First, their
statements were cumulative of other, properly admitted statements. Second, the challenged statements
were not important to the prosecution’s cases. And finally, the evidence of guilt was overwhelming.
A constitutional error is not reversible if it was
harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967). An error is harmless
24
beyond a reasonable doubt when the guilty verdict was
“surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993); accord Harrington v.
California, 395 U.S. 250, 254 (1969).
First, the challenged statements in both cases
were cumulative of other, often more damaging, statements Petitioners made to others.
In Densmore’s case, Densmore told a detective on
a recorded phone call that he had a “massive fight”
with Mead on the day she disappeared, characterized
it as probably the worst fight they had ever been in,
and told Mead “I hate you and I hope you die.” Pet.
App. 25a; Env., Trial, EX 245, 0:23-0:43. Densmore
made similar statements about getting into an argument with Mead to multiple family members. TR 0417-18, pp 117-18 (father), 186:2-6 (sister); TR 04-1818, p 83:7-13 (grandmother).
The jury also heard about Densmore’s acrimonious relationship with Mead from multiple sources, including his own journal entries and messages he sent
to a friend where he discussed violence towards Mead
and wanting her gone, as well as his “absolute hatred”
of her. EX Jury Trial, EX 239, pp 432-56; EX Jury
Trial, EXS 284-305, pp 333-61; TR 04-17-18, p 198:1215.
And while Densmore only explicitly made the
statement about slapping Mead to Punches, he admitted to his father that he “did something stupid” and
that he had a “knock-down, drag-out” argument with
Mead, which effectively conveyed the same information. TR 04-17-18, pp 117-19.
Likewise, Frazee’s statements to Longmire were
cumulative of statements he made to others.
25
Frazee’s accomplice Krystal Lee testified that on
December 3—before his arrest—Frazee told Lee “the
story that he had told [his attorney], that [he and Berreth] had gotten into it and she told him that she
needed space and he told her—she had told him that
she wanted him to keep custody of [K.F.], and he just
reiterated the story he had told to [Berreth’s mother]
when [she] called.” TR 11-06-19, pp 284-285. Berreth’s
mother testified that Frazee told her the same thing
when she called him on December 2 asking about Berreth’s whereabouts. TR 11-01-19, pp 256-260. And several law enforcement officers testified that Frazee told
them the same story before his arrest. TR 11-04-19, pp
144-161, 171-177; TR 11-05-19, pp 85-116.
Furthermore, the prosecution introduced far more
prejudicial statements Frazee made to others, including Frazee’s three separate solicitations for Lee to
murder Berreth, his detailed confession to Lee, his disparaging comments about Berreth made to several acquaintances and clients, and his statement to a friend
that he had thought of a way to kill Berreth, where he
told him, “No body, no crime.” TR 11-06-19, pp 152153, 157-158, 176-180, 188-189, 206:17-21, 246-270;
TR 11-08-19, pp 277-280; TR 11-12-19, pp 326-328,
333-335. The prosecution also discovered mid-trial
that Frazee solicited a fellow inmate to have the inmate’s prison gang kill several witnesses, including
Lee. Pet. App. 136a. The inmate testified about this
request at trial, and the prosecution admitted handwritten notes Frazee had given to the inmate to corroborate this account. Pet. App. 136a; EX, pp 251-82.
26
Accordingly, in both cases, Petitioners’ challenged
statements were cumulative of other, properly admitted statements.
Second, Petitioners’ statements to the child protection caseworkers did not play a significant role in
their trials.
In Densmore’s statements to Punches, he never
admitted to killing Mead, causing her disappearance,
or even knowing her whereabouts. And these statements constituted a small portion of the three-week
trial in which hundreds of exhibits were admitted and
over three dozen witnesses testified. See CF, pp 180822; TR 04-18-18, pp 154-60, 163-72; Env., Trial, EX
250. Although the prosecution referenced or played a
portion of Densmore’s statements to Punches during
closing arguments, see TR 04-24-18PM, pp 29-30, 5253, 86-87, those references were brief and often intertwined with discussions of similar statements
Densmore made to others.
Longmire’s testimony also played a minor role in
Frazee’s three-week trial. Like Densmore’s case, the
statements Frazee made to Longmire were not particularly incriminating, as Frazee did not confess to killing Berreth, soliciting her murder, or ever hurting her
or K.F. Instead, he repeated his story that Berreth
abandoned him and K.F. after their break-up. TR 1114-19, pp 64-72.
Third and finally, the evidence of Petitioners’
guilt was overwhelming.
Densmore was seen on surveillance footage placing a suitcase in an Oklahoma gas station dumpster
containing Mead’s torso. Pet. App. 25a; TR 04-19-18,
27
pp 30-38; Env., Trial, EXS 229-30. The forensic examination of Mead’s torso showed numerous injuries inflicted before her death—physical evidence more
damaging than Densmore’s limited admission of a
slap. TR 04-23-18AM, pp 80:2-19, 83-85. DNA testing
revealed Mead’s blood and Densmore’s DNA on a reciprocating saw at Densmore’s parents’ house. Pet.
App. 25a; TR 04-20-18, pp 85-87, 97:14-24; EX Jury
Trial, EX 331, pp 393, 398. Densmore drove to his parents’ house in Louisiana, stayed a single day (mostly
alone with W.M.), leaving behind a bathroom smelling
strongly of bleach, before driving to his grandmother’s
house in Arkansas and then back towards Colorado.
Pet. App. 24a-25a; TR 04-17-18, pp 121-22, 129-31,
154-56, 180-84, 201-02. And Densmore took steps to
cover his tracks, calling Mead’s phone shortly after beginning his cross-country drive and again several
hours later, and texting her over the next several days
asking about her whereabouts—despite knowing
where her body was the whole time. TR 4/16/18, pp
47:2-19, 51:2-5; TR 4/19/18, pp 257-64; EX Jury Trial,
EX 101, pp 91, 100; EX Jury Trial, EXS 314-18, pp
370-75.
In Frazee’s case, the prosecution presented significant evidence corroborating Lee’s testimony, including surveillance footage and cell phone location data.
TR 11-05-19, pp 92-93, 254-255, 282:12-18, 292-296;
TR 11-06-19, pp 12-79; EX, pp 97-149, 481, 485-86,
491-94. Law enforcement also recovered Berreth’s gun
in Idaho, where Lee had given it to a friend. TR 11-1219, pp 57-62; TR 11-13-19, pp 54-55.
28
Law enforcement found small blood stains and evidence of cleaning with bleach at Berreth’s condo, including blood soaked into the living room floorboards.
See, e.g., TR 11-15-19, pp 34-35; EX, pp 385-423. A
trained bloodhound alerted to the smell of human decomposition in the hayloft where Lee said Frazee hid
the tote containing Berreth’s body. TR 11-06-19, pp
255-258; TR 11-08-19, pp 21-37.
Lee also showed law enforcement where she and
Frazee burned Berreth’s body. The burn site was covered with fresh earth, and beneath that earth was
melted black plastic, an oily substance consistent with
burned human body oil, motor oil, or both, and a human tooth fragment. TR 11-08-19, pp 198-203, 206207, 211-212; TR 11-12-19, pp 222-229; TR 11-13-19,
pp 189-199, 269-277.
The guilty verdicts in Petitioners’ cases were
surely unattributable to any error in admitting the
statements they made to the child protection caseworkers. Because any errors were harmless beyond a
reasonable doubt, these cases are a poor vehicle for addressing the question presented.
III. Petitioners’ purported split is not as deep as
they claim, and most courts follow Colorado’s approach.
Finally, Petitioners argue that “an entrenched 6
to 6 division” exists in the lower courts, with six courts
favoring an approach that turns squarely on the existence of a caseworkers’ duty to report abuse and neglect
information to law enforcement; and six courts, including Colorado, “exempt[ing]” caseworkers from Miranda despite a duty to report. Pet. 16-24.
29
Contrary to Petitioners’ assertions, at least 18 jurisdictions (including Colorado) have adopted a factorbased approach. And of the six jurisdictions Petitioners claim support their position, only two arguably
do—but none of them categorically expand Miranda to
non-law enforcement personnel who have a duty to report.
The majority of jurisdictions to have considered
this issue are consistent with Colorado. In addition to
the six cases Petitioners reference, another seven have
adopted a factor-based analysis for determining
whether Miranda applies to DHS caseworkers. See
People v. Keo, 253 Cal. Rptr. 3d 57, 68-69 (Cal. Ct. App.
2019) (California); State v. Pearson, 804 N.W.2d 260,
270-71 (Iowa 2011) (Iowa); People v. Porterfield, 420
N.W.2d 853, 855 (Mich. Ct. App. 1988) (Michigan);
State v. Flower, 539 A.2d 1284, 1289 (N.J. Super. Ct.
Law Div. 1987) (New Jersey); People v. Texidor, 896
N.Y.S.2d 234, 236 (N.Y. App. Div. 2010); People v. Wilhelm, 822 N.Y.S.2d 786, 792-94 (N.Y. App. Div. 2006)
(New York); State v. Morrell, 424 S.E.2d 147, 153 (N.C.
Ct. App. 1993) (North Carolina); and Commonwealth
v. Saranchak, 866 A.2d 292, 302 (Pa. 2005) (Pennsylvania).
For example, in Keo, the California court of appeals was presented with similar facts and decided, after a substantive analysis, that the caseworker was
not an agent of law enforcement because she did not
discuss the facts of the case with the police or prosecutor prior to interviewing the defendant; she did not inform the police or prosecutor that she intended to
interview the defendant; and the prosecutor did not
obtain a copy of the defendant’s interview until a year
30
later, in response to a subpoena. 253 Cal. Rptr. 3d at
69.
Two other jurisdictions have adopted a factorbased analysis for other non-law enforcement personnel, such as counselors, who are mandatory reporters.
See State v. Tibiatowski, 590 N.W.2d 305, 311 (Minn.
1999) (Minnesota); State v. Olson, 449 N.W.2d 251,
254-255 (S.D. 1989) (South Dakota).
And a close reading of the cases Petitioners cite in
their favor reveal that most of them undertake a factspecific analysis encompassing more than just a duty
to report, or don’t undertake a meaningful analysis of
the agency question at all. See Buster v. Commonwealth, 364 S.W.3d 157, 164-65 (Ky. 2012) (“Buster I”);
Buster v. Commonwealth, 406 S.W.3d 437, 440 (Ky.
2013) (“Buster II”); Blanton v. State, 172 P.3d 207, 211
(Okla. Crim. App. 2007); State v. Gouin, 182 A.3d 28,
30, 33 (R.I. 2018); State v. Harper, 613 A.2d 945, 949
n.4 (Me. 1992); 7 see also Saranchak v. Beard, 616 F.3d
292, 303-05 (3d Cir. 2010) (case cited by Petitioners in
footnote).
For instance, neither of the Buster cases support
a bright-line rule; both considered more than just the
caseworker’s duty to report. See Buster I, 364 S.W.3d
at 164-65 (caseworker’s investigation “appears to have
been indistinguishable from the police investigation
because [caseworker] was turning over all his information to the police. And, importantly, his discussion
with Appellant was conducted with the permission of
the police while she was in custody.” (emphasis
7 Harper, 613 A.2d at 949, n.4, is not instructive either way as
the state conceded agency.
31
added)); Buster II, 406 S.W.3d at 440 (caseworker “was
turning over to the police the information he had gathered in his interview with Appellant. His interrogation
of Appellant was clearly ‘likely [to] result in disclosure
of information which would lead to facts that would
form the basis for prosecution.’” (citation omitted)).
Petitioners further mischaracterize the factorbased cases they cite. See Wilkerson, 173 S.W.3d at
528-31; Bernard, 31 So. 3d at 1033-35; Boles v. State,
887 S.E.2d 304, 315-16 (Ga. 2023); Clark v. State, 40
So. 3d 531, 541 (Miss. 2010); Jackson, 116 N.E.3d at
1246.
For example, Wilkerson did not hold that it “will
only bar the custodial statements elicited by a caseworker when the police, the defendant, and the caseworker themselves believe the caseworker is acting as
an agent of the police.” Pet. 22. To the contrary, the
court made clear that “[a]t bottom, the inquiry is: Was
this custodial interview conducted (explicitly or implicitly) on behalf of the police for the primary purpose
of gathering evidence or statements to be used in a
later criminal proceeding against the interviewee?”
173 S.W.3d at 531. To answer this question, the court
instructed lower courts to examine the entire record,
including three specific areas: (1) whether the relationship between police and the potential agent is an
“attempt[] to use the interviewer as its anointed
agent”; (2) information “concerning the interviewer’s
actions and perceptions” to establish whether “the interviewer believe[d] that he was acting as an agent of
law enforcement”; and (3) “evidence of the defendant’s
perceptions of the encounter” to establish whether “a
32
reasonable person in defendant’s position [would] believe that the interviewer was an agent of law enforcement.” Id. at 530-31. In context, Wilkerson identified
factors for courts to weigh in analyzing custodial statements elicited by a caseworker, rather than a brightline rule requiring Miranda advisements only when
the police, the caseworker, and the defendant all agree
that the caseworker is an agent.
Similarly, Petitioners also mischaracterize Bernard because it did not “expressly rely” on Wilkerson’s
approach but rather followed its own precedent from
three prior cases which declined to apply Miranda
“where the interrogator is neither a law enforcement
official nor acting as an agent of law enforcement.” 31
So. 3d at 1031-35 (citing State v. Hathorn, 395 So. 2d
783 (La. 1981), State v. Phillips, 444 So. 2d 1196 (La.
1984), and State v. Perry, 502 So. 2d 543 (La. 1986)).
After analyzing its precedential cases, Bernard
rejected the defendant’s argument that child protection caseworkers are per se agents of law enforcement
for purposes of Miranda:
After studying the cases concerning this issue, we clearly and quickly see the proper resolution of this issue is a fact-driven
determination. Simply stated, one size does
not fit all; there is no bright line rule to be applied. Each case must be decided under its
own set of facts. Trial courts will have to consider the unique circumstances of each case
and balance the defendant’s Miranda rights
against both the necessity for a child protection officer to obtain a complete and clear record of the alleged child abuse or neglect and
33
the Constitutional rights of a defendant who
has been taken into custody.
Id. at 1033.
Furthermore, while Bernard quotes Wilkerson at
length, that is only because the court found “the list of
factors in this Texas case worthy of mentioning.” Id.
at 1034. The court then re-emphasized that “courts
must consider the totality of circumstances in each
case” and stated that “the most important factors are
those discussed in [Perry]: whether the investigator
discussed the case with police prior to the interview,
whether the interview was conducted at the police’s
request, and whether the primary purpose of the investigator’s visit was to elicit a confession while in cahoots with law enforcement.” Id. at 1035. “In short,
police may not circumvent Miranda by using OCS investigators (or anyone else) as stand-ins to conduct interrogations in their stead.” Id.
Petitioners suggest that the factor-based approach utilized by these courts “exempt[s]” caseworkers from Miranda. Pet. 21-24. Not so. These cases
simply decline to categorically apply Miranda to caseworkers. But where the balance of factors on a casespecific level requires it, courts have not hesitated to
classify caseworkers as agents of law enforcement subject to Miranda’s requirements. See, e.g., Flower, 539
A.2d at 1289-90; Wilhelm, 822 N.Y.S.2d 786, 792-94;
Morrell, 424 S.E.2d at 153; Boles, 887 S.E.2d at 31516. That determination, though, must be made on a
case-by-case basis.
This leaves only two jurisdictions that provide arguable support for Petitioners’ position; but neither
have adopted Petitioners’ categorical approach.
34
None of the cases on which Petitioners rely categorically expand Miranda. As discussed above, four of the
six cases Petitioners cite do not actually support their
position. The other two, Jackson v. Conway, 763 F.3d
115, 139-40 (2d Cir. 2014), and Commonwealth v.
Howard, 845 N.E.2d 368, 372-73 (Mass. 2006), are distinguishable.
In Jackson v. Conway, defendant was arrested for
sexually assaulting his wife, ex-wife, and minor
daughter multiple times. 763 F.3d at 121-22. The caseworker interviewed the defendant the day he was arrested, aware that his purported crimes involved an
offense against his minor child. Id. at 122. On these
facts, the court found the case fell within the ambit of
Mathis, because the caseworker, as in Mathis, was a
mandatory reporter and was aware of a “possibility”
that her investigation would lead to a criminal prosecution. Id. at 139 (citing Mathis, 391 U.S. at 4). Thus,
under Mathis, the Jackson court considered both the
caseworker’s duty to report, as well as her awareness
that her civil investigation could lead to a criminal
prosecution, in opining that the civil nature of her investigation did not matter. Id. at 139.
Jackson is therefore inapt because it did not turn
solely on the caseworker’s duty to report, but also on
her awareness that her civil investigation could lead
to criminal charges. Id.
In Howard, the defendant sexually assaulted and
impregnated his teenage niece. 845 N.E.2d at 369. As
in Jackson, the caseworker interviewed the defendant,
aware the criminal allegations involved a minor child
with whom he lived. Id. at 370-71. But here, the defendant raised a Sixth Amendment violation to the
35
caseworker’s interview because his right to counsel
had attached and the caseworker interviewed him
without his lawyer. Id. at 369-71. Relying on Massiah
v. United States, 377 U.S. 201 (1964), and Commonwealth v. Hilton, 823 N.E.2d 383 (Mass. 2005), the
court found the caseworker’s interview constituted the
equivalent of direct police interrogation because she
admitted to being part of a joint investigative team
working directly with the district attorney and local
law enforcement, she knew her reports would be
shared with the broader team, and her questions were
directed solely toward the issue of defendant’s guilt.
Howard, 845 N.E.2d at 371-73.
Howard is distinguishable because it has notably
different facts and was evaluated under the Sixth
Amendment, rather than Miranda. Regardless, the
court did not rely on a duty to report in concluding the
caseworker was acting as an extension of law enforcement.
Moreover, both before and after Howard, in
closely related contexts, the Massachusetts Supreme
Court twice analyzed whether Department of Social
Services caseworkers were acting as agents of the
prosecution and found they were not, emphasizing instead that they were engaged in a cooperative effort
intended to support the best interest of the child. See
Commonwealth v. Adkinson, 813 N.E.2d 506, 513-14
(Mass. 2004) (Department of Social Services denied
defendant’s expert an interview with defendant’s children in preparation for defendant’s criminal trial);
Adoption of Ursa, 224 N.E.3d 491, 504-05 (Mass. App.
Ct. 2023) (defendant asked the court to infer that the
department intended to elicit incriminating evidence,
36
and that anything she said to department’s social
worker would be used against her in the criminal
case). These cases call into question whether Howard
supports Petitioners’ argument that child protection
caseworkers are per se agents of law enforcement
based solely on their duty to report.
There is no need for this Court’s intervention.
While there is some variation among courts in their
approach to this question, it is not as stark or pervasive as Petitioners assert. And despite the fact that
these variations have existed for almost six decades,
this Court has never intervened. Because there is no
indication that the system is failing to properly function with respect to Miranda’s applicability to caseworkers, there is no true controversy for this Court to
resolve. The Colorado Supreme Court’s ruling in this
case should stand.
CONCLUSION
The petition for a writ of certiorari should be denied.
37
Respectfully submitted,
PHILIP J. WEISER
Attorney General
SHANNON WELLS
STEVENSON
Solicitor General
Counsel of Record
Office of the Colorado
Attorney General
1300 Broadway
10th Floor
Denver, Colorado 80203
Shannon.Stevenson
@coag.gov
(720) 508-6000
JILLIAN J. PRICE
Deputy Attorney General
GRANT R. FEVURLY
Senior Assistant Attorney
General
BRITTANY LIMES ZEHNER
Assistant Solicitor
General
GINA NYKERK
Assistant Attorney
General
Counsel for Respondents
September 23, 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.