Update: On September 20, 2018, the Supreme Court of Ohio dismissed this case as improvidently accepted. Read more about that here.

Read an analysis of the oral argument here.

On July 31, 2018, the Supreme Court of Ohio will hear oral argument in the case of In re L.G. (2017-0877). At issue in this case is whether a minor’s rights against self-incrimination were violated when he was questioned in the presence of police officers by a school supervisor, who was under an obligation to report his findings to police.

Case Background

On October 27, 2015, the Dayton Police Department (“DPD”) responded to a bomb threat at a school. Dayton Public Schools Executive Director of Safety and Security, Jamie Bullens (“Bullens”) also responded. Bullens—himself a former police officer—oversees 26 school resource officers who are trained as peace officers with the power to arrest at schools, but who do not carry weapons. After a sweep of the school with bomb-sniffing dogs, Bullens determined that it was safe to return the students to the school gymnasium. There Bullens made an announcement that a reward, up to $1,000, would be offered for information about the bomb threat.

L.G., a thirteen-year-old, seventh-grade student was identified as a suspect. After consultation with DPD, Bullens instructed a school resource officer under his command to bring L.G. to him for questioning. Bullens questioned L.G. in the school cafeteria with members of the DPD—two of whom were uniformed and armed—as little as five feet away. At one point Bullens said he informed L.G. he did not have to answer any questions, although Bullens later took that back. During the questioning, L.G. admitted to making the bomb threat. Bullens, in accordance with school policy, reported his findings to DPD. And L.G. was immediately taken into custody.

On October 28, 2015, the Dayton Police Department filed a complaint against thirteen-year-old L.G. for Inducing Panic, a second degree felony.  At trial, the contents of the conversation between Bullens and L.G. were subject to a motion to suppress on the grounds that Bullens violated L.G.’s rights against self-incrimination under the Fifth Amendment of the Constitution of the United States and Article I, Section 10 of the Ohio Constitution.

After a hearing on the motion to suppress, a magistrate granted the motion. This decision was upheld by Montgomery County Juvenile Court Judge Nick Kuntz.

The State appealed the decision to the Second District Court of Appeals. In a split opinion written by Judge Jeffery E. Froelich and joined by Judge Mary E. Donovan, the court found that Miranda warnings were required. Judge Michael T. Hall dissented.

The State brings this appeal.

Votes to Accept the Case

Yes: Justices O’Donnell, Kennedy, French, and DeWine

No: Chief Justice O’Connor and Justice Fischer

Not participating: Justice O’Neill

Key Precedent

Fifth Amendment of the United States Constitution (“No person shall… be compelled in any criminal case to be a witness against himself…”)

 Article I Section 10, of the Ohio Constitution (“No person shall be compelled, in any criminal case, to be a witness against himself”

R.C. 2935.01(B) (Statute defining a “Peace Officer”)

R.C. 2917.31(A)(1) (Inducing Panic)

R.C. 2152.02 (Delinquent Child)

Miranda v. Arizona, 384 U.S. 436 (1966) (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”)

In re Gault, 387 U.S. 1 (1967) (“If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.”)

State v. Bolan, 27 Ohio St.2d 15 (1971) (“[T]he duty of giving ‘Miranda warnings’ is limited to employees of government agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies.”)

State v. Watson, 28 Ohio St.2d 15 (1971) (Statements made to reporter while in custody did not trigger Miranda requirements.)

State v. Gallagher, 46 Ohio St.2d 225 (1976) (Pressure to cooperate can be a factor in determining whether a Miranda warning is warranted.)

Estelle v. Smith, 101 S.Ct. 1866 (1981) (Defendant held in custody was compelled by the court to submit to a ‘mental status examination’ performed by a court-appointed psychiatrist. The Court concluded that, “when faced while in custody with a court-ordered psychiatric inquiry, [defendant]’s statements . . . were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used . . . only if [defendant] had been apprised of his rights and had knowingly decided to waive them.”)

State v. Roberts, 32 Ohio St.3d 225 (1987) (“[S]tatements by an in-custody probationer to his probation officer are inadmissible in a subsequent criminal trial, where prior to questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution.”)

State v. Cook, 2002-Ohio-4812 (2^nd Dist.) (“The test of government participation is whether, in light of all the circumstances, the private person `acted as an instrument or agent of the state. . . .[C]ases in this area require a great deal of entanglement between the police and the private searcher before agency can be found.” (Citations and quotations omitted))

State v. Hoffner, 2004-Ohio-3430 (“In order to determine whether a person is in custody for purposes of receiving Miranda warnings, courts must first inquire into the circumstances surrounding the questioning and, second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave. Once the factual circumstances surrounding the interrogation are reconstructed, the court must apply an objective test to resolve the ultimate inquiry of whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (Quotations and citations omitted))

In re McDonald, 2007-Ohio-782 (11^th Dist.) (Questioning a student at a school is not inherently custodial interrogation.)

In re G.J.D., 2010-Ohio-2677 (11^th Dist.) (A school principal was not acting under the direction of police when he questioned a student and asked the student to write out his statement on a blank police department report form.)

JDB v. North Carolina, 131 S.Ct. 2394 (2011) (Age a relevant factor when determining whether an interrogation is custodial for Miranda purposes.)

State v. Magnone, 2016-Ohio-7100  (2^nd Dist) (Listing factors to consider when determining custody under Miranda.)

State v. Mattox, 2018-Ohio-992 (2^nd Dist.) (“For purposes of determining whether an interview is custodial, the ‘subjective views’ of the interviewer and the person being interviewed ‘are immaterial’; instead, the determination should focus on the essentially objective question of whether ‘a reasonable person in the [same] position’ would feel ‘at liberty to terminate the interview and leave.’”)

State v. Jackson, Slip Opinion No. 2018-Ohio-2169 (A social worker did not act as a state agent when she questioned a defendant in custody, but was not directed by law enforcement.)

State’s Argument

Miranda warnings require action by the State. There was no such action in this case. L.G. was not subjected to custodial interrogation. Nor was Bullens acting as or under the control of a law enforcement officer within the meaning of Miranda.

While a private citizen can act as an agent of police when he or she is under the direction or control of law enforcement, no such direction or control was present here.  The presence of law enforcement officers is not determinative. Lower courts have determined that questioning of a minor by a parent in the presence of law enforcement officers did not invoke Miranda, even when the minor was in police custody. Questioning by a reporter while in police custody was not a violation of Miranda. And questioning by a fellow employee while in the presence of police was not a violation. Law enforcement must exercise influence on the questioning in order for Miranda to be violated.

Bullens’ position as a school district administrator does not transform him into a state actor nor does his past law enforcement experience. In fact, there is no evidence that L.G. even knew of Bullens’ past law enforcement experience. Nevertheless, Bullens is not affiliated with any law enforcement body. Thus, he was acting privately.

The fact that Bullens’ goals in securing the school during the bomb threat overlapped with those of DPD does not transform him into an agent of DPD. Having common goals is permissible.

Bullens’ appearance as a law enforcement officer to L.G. or a reasonable juvenile in his position is irrelevant. Appearance is not a factor for determining agency under Miranda; control is.

DPD exercised no control over Bullens’ questioning. When the police do not direct the questioning—whom to question, what to ask, or how to ask—no violation of Miranda takes place. Bullens made every decision in the school division’s investigation of the bomb threat without guidance or influence from DPD. Further, despite L.G’s claims to the contrary, school policy only required Bullens to work closely with police; it did not require him to report his findings.

Even if Bullens did act as a state actor, L.G. was never in custody. For Miranda to apply, the defendant must be interrogated while in custody. Whether the defendant was in custody can be determined through assessing a number of factors, including the location of the interview, the number of law enforcement officers present, the conduct and demeanor of the officers, the degree of physical restraint, the character and duration of the interrogation, whether the interviewee is threatened or tricked, and whether the interviewee is released following the interview.

L.G. was not in custody because he was familiar with the environment, a small number of officers were present, those officers said and did nothing, no restraint was used, the interview was short, there is no evidence of coercion, and L.G. recognized his right not to cooperate by not answering some questions.

The fact that L.G.’s interrogation took place at the school in the presence of police officers is not enough to constitute custodial interrogation under Miranda. At the least, the defendant needs to be under arrest or restrained. L.G. was neither under arrest nor restrained at the time of the interrogation. Furthermore, the interrogation was also short, lasting between ten and twenty minutes.

L.G.’s Argument

In this case Bullens was either acting in a law enforcement capacity or as an agent of law enforcement. The courts below found substantial entanglement between Bullens and law enforcement.  Bullens responded to the school after being directly contacted by DPD. This contact remained ongoing until the arrest of L.G. Nor does Bullens serve a typical administrative role. Bullens’ sole purpose after the school was deemed safe by DPD was to determine the culprit. Bullens arranged for the reward money to be offered. Bullens investigated the tips with his team of school resource officers. All of these decisions were made in cooperation with law enforcement.

Bullens’ role as Executive Director of Safety and Security for Dayton Public Schools is by definition an agent of the state, serving in a law enforcement related role. His position is more like a parole officer to a parolee or to a psychological examiner; he has the power to exert psychological pressure beyond that of a typical school administrator.

The U.S. Supreme Court calls for a heightened consideration of the facts surrounding an admission by a juvenile. That determination remains true here. L.G. was thirteen years old, attending an alternative school.

The appellate court was correct in applying a reasonable juvenile test to determine whether L.G. was in custody. The Court in Miranda established a clear two part test to determine whether a suspect is in custody: 1) determine the circumstances of the interrogation and 2) determine whether a reasonable person in those circumstances would have felt free to terminate the interrogation.

The setting of the school by its very nature acts as a restraint on a minor student. That restraint is multiplied by the fact that L.G. was escorted by resource officers to a room with no students, but several law enforcement officers. L.G. was never told he would be permitted to leave. Instead, he was interrogated, then escorted to a police car.

Amici in support of L.G.

The following civil rights organizations submitted a joint amicus brief in support of L.G.: Juvenile Law Center, Office of the Ohio Public Defender, Children’s Law Center, Inc., Education Law Center-PA, Juvenile Justice Coalition, National Juvenile Defender Center, and Schubert Center for Children’s Studies.

The lower courts were correct in determining that a reasonable child in L.G.’s circumstances would not have felt free to leave the interrogation and that Bullens was acting as an agent of law enforcement.

The constitutional rights of children must be treated with increased sensitivity in accordance with their age. Children are more likely to be influenced by the pressures of interrogation, leading to a higher likelihood of involuntary and false confessions.

The entanglements between Bullens and DPD support the lower courts’ conclusion that Bullens was an agent of law enforcement. With the increasing presence of law enforcement in schools, the line between law enforcement and school official is blurred. Bullens’ investigation was part of the criminal investigation, not simply the school district’s investigation.

The lower courts properly used the reasonable juvenile standard in determining whether L.G. was in custody within the meaning of Miranda. Lacking Miranda warnings, statements made during custodial interrogation are presumptively coerced and should be suppressed.

Ohio Association of Criminal Defense Lawyers in support of L.G.

Miranda requires warnings from persons acting as agents of law enforcement.  Estelle demonstrates that the responsibilities created by Miranda are not limited to law enforcement officers. And, despite the State’s case law supporting the immunity of third-parties from Miranda, Bullens’ unique position as the head of 26 law enforcement officers is distinguishable. Further, all of the third-parties cited by the State had separate agendas to that of law enforcement; Bullens did not. He worked hand in glove with police during the entire incident. Bullens did not consult with any other school officials during his investigation—only with DPD.

This case is also distinguishable from the Supreme Court of Ohio’s recent decision in State v. Jackson. There the Court did not find any concerted effort or cooperation between the social worker and law enforcement. That concerted effort and cooperation is present here.

L.G. was in custody within the meaning of J.D.B., which calls for consideration of the totality of the circumstances. L.G.’s status as a juvenile affects this analysis.

The State’s use of case law ignores the totality of the circumstances in those cases, focusing on a single factor out of many.

Considering the totality of the circumstances of L.G.’s interview, the Court should uphold the lower court’s decision.

 State’s Proposed Proposition of Law

The protections of the United States Constitution only apply where there is action by the State. The Fifth Amendment protection against self-incrimination does not apply to interviews conducted by private citizens.

L.G.’s Proposed Counter Proposition of Law

Fifth Amendment protections apply where school officials work in a law enforcement capacity or as agents of law enforcement and interrogate children in a school setting.

Student Contributor: Mark Tassone