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

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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.

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