In re L.G. (Slip Opinion) , 154 Ohio St. 3d 303 ( 2018 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re L.G., Slip Opinion No. 2018-Ohio-3750.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2018-OHIO-3750
IN RE L.G.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re L.G., Slip Opinion No. 2018-Ohio-3750.]
Appeal dismissed as having been improvidently accepted.
(No. 2017-0877―Submitted July 31, 2018―Decided September 20, 2018.)
APPEAL from the Court of Appeals for Montgomery County,
No. 27296, 2017-Ohio-2781.
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{¶ 1} This cause is dismissed as having been improvidently accepted.
O’CONNOR, C.J., and FISCHER, DEWINE, and DEGENARO, JJ., concur.
O’DONNELL, J., dissents, with an opinion joined by FRENCH, J.
KENNEDY, J., dissents.
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O’DONNELL, J., dissenting.
{¶ 2} I respectfully dissent from the majority’s decision to resolve this case
by declaring that it was improvidently accepted. The Second District Court of
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Appeals misapplied long-standing precedent of this court, which we recently
followed in State v. Jackson, ___ Ohio St.3d ___, 2018-Ohio-2169, ___ N.E.3d
___, when it concluded that a school district’s executive director of safety and
security acted as an agent of law enforcement and had a duty to advise a student of
his Miranda rights prior to questioning that student about a bomb threat even
though the director initiated and conducted the interview without input from law
enforcement. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). By dismissing this case and not even issuing a “do not cite” directive, the
majority allows an errant appellate court decision to stand and creates confusion
regarding the requirement that an individual act at the direction or control of law
enforcement to be an agent of law enforcement.
Facts and Procedural History
{¶ 3} On October 27, 2015, the Montgomery County Regional Dispatch
Center received an anonymous telephone call claiming there was a bomb at
Longfellow Alternative School. After the school was evacuated, police and Jamie
Bullens, the executive director of safety and security for Dayton Public Schools,
arrived at the school. Bullens, a retired Dayton Police Department detective,
oversees the schools’ resource officers, who are trained as peace officers, have
authority to arrest on school grounds, and carry handcuffs but not weapons.
However, Bullens is not a peace officer. School district policy directs that he work
closely with police when a crime occurs on school grounds and formal charges may
be warranted.
{¶ 4} Bullens met with Sergeant Keller, the supervisor on the scene for the
Dayton Police Department. Bullens and Keller decided to have bomb sniffing dogs
sweep the building; they found nothing. Then, Bullens and Keller decided to allow
the students into the school gymnasium, where Bullens, in the presence of a
uniformed officer, told the students that the Miami Valley Crime Stoppers
Association was offering a $50 to $1,000 reward for information leading to the
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person responsible for the bomb threat. The previous day, Bullens had received
permission to offer such a reward in bomb threat cases from Detective Querubin,
who ran the association, provided that any information gathered after offering the
reward was given to law enforcement.
{¶ 5} After Bullens left the gymnasium, School Resource Officer Kerry Ivy
and Principal Jack Johnson notified him that two individuals had come forward
with information. Bullens spoke with the individuals in the cafeteria, and they
implicated L.G., a student. Without consulting police, Bullens instructed Ivy to
bring L.G. to the cafeteria, where Bullens questioned him without providing
Miranda warnings. L.G. admitted to calling in the bomb threat. Although at least
two uniformed Dayton Police officers were present in the cafeteria, they did not
participate in the interview or direct the questioning in any way. After Bullens
finished questioning L.G., one of the officers placed him under arrest.
{¶ 6} The next day, the Dayton Police Department filed a complaint
alleging that L.G. was a delinquent child for committing the offense of inducing
panic. L.G. moved to suppress his statements on the grounds that he had not been
advised of his Miranda rights, and after a hearing, a magistrate granted the motion.
The state objected to the magistrate’s decision, arguing that Miranda did not apply,
because L.G. was not in custody when Bullens questioned him and Bullens was not
a law enforcement officer and did not act as an agent of law enforcement. The
juvenile court overruled the objections and granted the motion to suppress.
{¶ 7} The state appealed, and the court of appeals affirmed in a divided
decision. The majority concluded that L.G. was in custody when Bullens
questioned him. In addition, relying on State v. Bolan, 27 Ohio St. 2d 15, 271
N.E.2d 839 (1971), the majority acknowledged that it is well established that only
law enforcement and those acting at the direction or control of law enforcement
have a duty to give Miranda warnings. 2017-Ohio-2781, 82 N.E.3d 52, ¶ 20 (2d
Dist.). It further acknowledged that Bullens testified that he “did not maintain his
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status as a peace officer” and that “the Dayton police did not direct his questioning
of L.G., nor did he speak with police officers between the time that L.G. was
identified and when L.G. was questioned.” Id. at ¶ 21.
{¶ 8} Nonetheless, the court of appeals’ majority held that the juvenile court
“reasonably concluded that, when viewing the totality of the circumstances, Bullens
was acting in conjunction with law enforcement officers, such that Miranda
warnings were required.” Id. at ¶ 22. It noted the juvenile court’s reliance on the
fact that Bullens and Sergeant Keller had made joint decisions regarding having
dogs check the building and allowing the students back into the school, that Bullens
offered a reward based on his permission from Detective Querubin, that Bullens
gave an order to a school resource officer to retrieve L.G. from the gymnasium, and
that Bullens questioned L.G. with at least two armed, uniformed officers nearby.
Id.
{¶ 9} The dissenting court of appeals jurist opined that the evidence did not
support the conclusion that L.G. was in custody during the interview or that Bullens
acted as an agent of law enforcement in conducting the interview. Id. at ¶ 29-30
(Hall, P.J., dissenting).
{¶ 10} The state appealed and presented one 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.
Law and Analysis
{¶ 11} “The Fifth Amendment to the United States Constitution, made
applicable to the states by the Fourteenth Amendment, states that ‘[n]o person
* * * shall be compelled in any criminal case to be a witness against himself
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* * *.’ ” (Ellipses sic and citation omitted.) State v. Graham, 136 Ohio St. 3d 125,
2013-Ohio-2114, 991 N.E.2d 1116, ¶ 19. Pursuant to Miranda, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694, “the 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.” Id. at 444.
{¶ 12} In State v. Jackson, ___ Ohio St.3d ___, 2018-Ohio-2169, ___
N.E.3d ___, this court recently reiterated:
In State v. Watson, 28 Ohio St. 2d 15, 275 N.E.2d 153 (1971),
this court stated, “Inasmuch as custodial interrogation, as defined in
Miranda * * * means ‘questioning initiated by law enforcement
officers after a person has been taken into custody,’ the Miranda
requirements do not apply to admissions made to persons who are
not officers of the law or their agents * * *.” Id. at paragraph five
of the syllabus, quoting Miranda at 444; see also State v. Bernard,
31 So. 3d 1025, 1029 (La.2010) (Miranda applies only if “the
interrogation is conducted by a ‘law enforcement officer’ or
someone acting as their agent”). And we have observed that other
courts have recognized “that the duty of giving ‘Miranda warnings’
is limited to employees of governmental agencies whose function is
to enforce law, or to those acting for such law enforcement agencies
by direction of the agencies; * * * it does not include private citizens
not directed or controlled by a law enforcement agency, even though
their efforts might aid in law enforcement.” (Emphasis added.)
State v. Bolan, 27 Ohio St. 2d 15, 18, 271 N.E.2d 839 (1971).
(Ellipses sic.) Id. at ¶ 15.
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{¶ 13} In Jackson, we considered whether a social worker was an agent of
law enforcement during an interview of an alleged perpetrator of child abuse at the
county jail. Id. at ¶ 1-3. We held:
A social worker’s statutory duty to cooperate and share
information with law enforcement with respect to a child abuse
investigation does not render the social worker an agent of law
enforcement for purposes of the Fifth and Sixth Amendments to the
United States Constitution when the social worker interviews an
alleged perpetrator unless other evidence demonstrates that the
social worker acted at the direction or under the control of law
enforcement.
(Emphasis added.) Id. at syllabus. In concluding the social worker in that case was
not acting as an agent of law enforcement, we highlighted the absence of evidence
“that law enforcement asked [the social worker] to interview [the alleged
perpetrator] before or after” a failed interview attempt by law enforcement and the
absence of evidence that “law enforcement influenced [the social worker’s]
interview * * * in any way.” Id. at ¶ 23.
{¶ 14} Here, the evidence does not support the conclusion that Bullens was
a member of law enforcement or an agent of law enforcement at the time of the
interview, so the court of appeals erred in concluding he had a duty to provide L.G.
with Miranda warnings. Bullens is not a peace officer, and as in Jackson, any duty
Bullens had to cooperate and share information with law enforcement, pursuant to
either district policy or the agreement with the Miami Valley Crime Stoppers
Association, is not dispositive of whether he was an agent of law enforcement. The
fact that Bullens made joint decisions with police about using bomb sniffing dogs
and moving the students to the gymnasium contradicts the conclusion that he acted
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at the direction or control of law enforcement during this incident. Importantly, as
in Jackson, there is no evidence law enforcement requested the interview or
influenced it in any way. Bullens made the decision to interview L.G. without any
discussion with law enforcement, and there is no evidence the officers who were
present during the interview directed or controlled it. Indeed, as the executive
director of safety and security for the school district, Bullens was acting in
furtherance of his duty to ensure the safety of the students, a wholly different focus
from the prosecution of L.G.
Conclusion
{¶ 15} For the foregoing reasons, I dissent from the majority’s decision to
dismiss this appeal as having been improvidently accepted. Instead, I would
reverse the judgment of the court of appeals because it is contrary to this court’s
precedent and remand to the juvenile court for further proceedings.
FRENCH, J., concurs in the foregoing opinion.
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Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Christina E. Mahy and Andrew T. French, Assistant Prosecuting Attorneys, for
appellant, the state of Ohio.
Theresa G. Haire, Montgomery County Public Defender, and Michael E.
Deffet, Assistant Public Defender, for appellee, L.G.
Marsha L. Levick; Brooke M. Burns; Rickell Howard; and Erin Davies,
urging affirmance for amici curiae Juvenile Law Center, the 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.
Russell S. Bensing, urging affirmance for amicus curiae Ohio Association
of Criminal Defense Lawyers.
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