In re M.H. (Slip Opinion) , 2020 Ohio 5485 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re M.H., Slip Opinion No. 2020-Ohio-5485.]
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. 2020-OHIO-5485IN RE M.H.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re M.H., Slip Opinion No. 2020-Ohio-5485.]
Fifth Amendment—Due process—Suspect’s questioning by child-abuse
investigator did not violate Miranda v. Arizona or suspect’s federal due-
process rights, because investigator was neither a law-enforcement officer
nor acting under direction or control of police and confession obtained was
not causally related to any conduct of police—Court of appeals’ reversal of
trial court’s suppression of statement to investigator affirmed.
(No. 2019-0621—Submitted April 29, 2020—Decided December 3, 2020.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 105742, 2018-Ohio-4848.
_______________________
KENNEDY, J.
{¶ 1} In this discretionary appeal from the Eighth District Court of Appeals,
we are asked whether a child-abuse investigator employed by a county children-
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services agency must give the warnings required by the Supreme Court of the
United States in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966), before questioning a child suspected of committing child abuse. We
are also asked whether the admission at trial of an incriminating statement obtained
from a child suspect by a county child-abuse investigator violates the due-process
protections of the Fourteenth Amendment.
{¶ 2} Binding precedent answers both questions. We held in State v.
Jackson that a child-abuse investigator employed by a county children-services
agency is not required to provide the Miranda warnings before questioning a
suspect in a child-abuse investigation when the investigator is neither a law-
enforcement officer nor an agent of law enforcement acting under the direction or
control of the police. 154 Ohio St.3d 542, 2018-Ohio-2169, 116 N.E.3d 1240,
¶ 15, 30. And in Colorado v. Connelly, the Supreme Court of the United States
explained that “[a]bsent police conduct causally related to the confession, there is
simply no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.” (Emphasis added.) 479 U.S. 157, 164, 107 S.Ct.
515, 93 L.Ed.2d 473 (1986).
{¶ 3} The evidence demonstrates that at the time the child-abuse
investigator interviewed the suspect in this case, the investigator was neither a law-
enforcement officer nor acting under the direction or control of the police. Further,
the confession obtained was not causally related to any conduct of the police. The
questioning in this case therefore violated neither Miranda nor the suspect’s federal
due-process rights, and the court of appeals correctly concluded that the confession
resulting from it was admissible at trial.
{¶ 4} Accordingly, we affirm the judgment of the Eighth District Court of
Appeals.
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Facts and Procedural History
{¶ 5} The Cuyahoga County Department of Children and Family Services
(“CCDCFS”) received a referral reporting that 13-year-old M.H. had engaged in
sexual activity with J.M., the 12-year-old daughter of M.H.’s mother’s boyfriend.
Esther Bradley, a child-protection specialist in CCDCFS’s Sex Abuse Intake Unit,
interviewed J.M. and told her mother to submit a police report.
{¶ 6} Bradley opened a sex-abuse investigation and left at M.H.’s residence
for M.H.’s mother a letter specifying a time and place for Bradley to interview M.H.
According to M.H.’s mother, neither the letter nor Bradley in a subsequent
telephone call informed her that M.H. was a suspect in an investigation, but M.H.’s
mother was aware of allegations that M.H. had touched J.M. while she was asleep.
M.H.’s mother did not know that she could decline the interview, and she brought
M.H. to CCDCFS to be questioned. Bradley had told M.H.’s mother that it would
be a private interview and that she would not be permitted to accompany M.H.
Bradley took M.H. to a room and closed the door, leaving his mother in the waiting
room. Bradley did not advise M.H. of his Miranda rights prior to the interview,
and M.H. admitted during the interview that he had engaged in sexual activity with
J.M. Bradley prepared a report for the police.
{¶ 7} The Cleveland police department assigned the case to Detective
Christina Cottom, and on August 24, 2016, she filed a juvenile-delinquency
complaint alleging that M.H. committed two counts of rape and two counts of gross
sexual imposition. The state moved in limine to admit M.H.’s incriminating
statement, and M.H. moved to suppress it, asserting that his statement was
involuntary, that he had not been advised of or validly waived his Miranda rights,
and that his statement’s probative value did not outweigh its prejudice to his
defense.
{¶ 8} At the suppression hearing, Bradley testified that she had a dual
purpose in interviewing M.H. The first was to determine whether any type of
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inappropriate sexual activity had occurred between M.H. and J.M., “and if anything
criminal happened, then [Bradley would] pass that on to law enforcement.” The
second purpose was to ensure J.M.’s safety and make sure that nothing
inappropriate occurred while the investigation was ongoing. Bradley admitted that
CCDFCS has a relationship with law enforcement, that she regularly shares
information with the police, and that she knew that a detective had been assigned
to the case. She also admitted that she had previously been employed as a police
detective in Atlanta, Georgia, and was aware of the Miranda warnings. But she
explained that in her work for CCDFCS, she was “not law enforcement” and did
not have arrest powers; rather, her role was to make sure that families and children
receive the services they need. Bradley could not remember whether she had been
contacted by the police before she interviewed M.H., but she “[did not] think so.”
{¶ 9} Detective Cottom testified that she normally coordinates with
CCDFCS to interview the alleged victim jointly but that in this case, Bradley had
interviewed both J.M. and M.H. before Detective Cottom was able to contact her.
For this reason, the detective never interviewed M.H., and she testified that she did
not direct Bradley to interview M.H. on behalf of the police or tell Bradley what
questions to ask him. Detective Cottom explained that she did not even know that
the interview had occurred until after she received Bradley’s report approximately
two months later.
{¶ 10} The trial court granted the motion to suppress, finding that “the
relationship between [CCDCFS and] the State [is] a little close for comfort.” The
court concluded that M.H.’s statement had been obtained in violation of his due-
process rights and that it was inadmissible under Evid.R. 403(A). It also denied the
state’s motion in limine.
{¶ 11} The Eighth District Court of Appeals reversed and remanded. The
lead opinion recognized that a social worker may have a duty to give a suspect the
Miranda warnings when the social worker acts under the direction or control of law
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enforcement. 2018-Ohio-4848, ¶ 22. But here, the lead opinion concluded, “there
is no evidence that [Bradley] was acting under the direction or control of law
enforcement when she interviewed M.H., despite her cooperation with law
enforcement.” Id. at ¶ 35. It also concluded that M.H. was not in custody during
the interview and that Bradley had not compelled him to incriminate himself in
violation of his due-process rights. Id. at ¶ 35, 39-40. The lead opinion noted that
M.H. was not under arrest, his mother had brought him to the interview, he had not
been ordered to appear at a police station, he was not restrained, the door to the
interview room was closed but not locked, the interview lasted approximately 40
minutes, and he was free to leave the building after the interview. It also explained
that “[t]here is no evidence—or allegations—of any threats, coercion, suggestions,
restraints, or physical deprivation or harm to M.H.” Id. at ¶ 40. Lastly, the lead
opinion determined that Evid.R. 403(A) would not preclude admission of M.H.’s
statement because the record did not demonstrate that admitting the statement
would be unfairly prejudicial. Id. at ¶ 41-42.
{¶ 12} We accepted M.H.’s discretionary appeal on the following three
propositions of law:
(1) The statement of a child to a government social worker
may be involuntary and violate due process even when the
government social worker was not required to give Miranda
warnings.
(2) A child does not feel free to leave when a [sic] he is
driven to [a] government agency for questioning by a parent and
separated from that parent and interrogated in a private interrogation
room without being told he is free to leave and free to not cooperate.
(3) A child-suspect must be provided Miranda warnings
when that child is interrogated by a social worker who is exercising
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her statutory duty to investigate child abuse allegations and does so
cooperatively with the police on a regular and institutional basis.
See 156 Ohio St.3d 1452, 2019-Ohio-2780, 125 N.E.3d 947.
Positions of the Parties
{¶ 13} M.H. maintains that in determining whether a child has given a
voluntary confession or perceived himself or herself to be in custody, courts must
account for the cognitive differences and disparities in social and emotional
functioning that separate juveniles from adults. He asserts that children as young
as M.H. should be presumed as a class to be unable to give a voluntary statement,
because cognitive and behavioral science suggest that they are developmentally at
risk of providing an involuntary or false confession. Further, he contends that his
statement was made under highly coercive circumstances: his mother had taken him
to the interview, and she and Bradley were both authority figures; Bradley was a
former homicide detective who was trained in coercive interrogation techniques;
and M.H. had been separated from his mother at a government building staffed by
armed guards. Also, M.H. argues that children are in a state of perpetual custody
of parents, teachers, and others and that a child would not feel free to walk away
from an interview with a government worker; therefore, M.H. says, he was
subjected to a custodial interrogation.
{¶ 14} Additionally, M.H. claims that Bradley was acting as an agent of law
enforcement when she interrogated him. He notes that Bradley was a state actor
who was required by Ohio law to investigate allegations of child abuse and to report
the results of the investigation to law enforcement, and he asserts that she knew that
M.H.’s unwarned statements would be used in the police investigation and
subsequent prosecution. “[T]here is no legitimate purpose for the social worker’s
interview of [M.H.],” he contends, “other than to directly assist the investigation of
law enforcement.”
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{¶ 15} The state responds that there is no evidence in the record showing
that M.H. was ignorant of his rights, that Bradley coerced him into giving a
statement, or that the interview was an inherently coercive interrogation. It
contends that the law does not recognize a presumption that a child’s statement is
involuntary, and it says that M.H. wrongly conflates the fact that Bradley was an
agent of the government as a child-protection specialist with her being an agent of
law enforcement. The state opposes M.H.’s proposed per se rule that juveniles are
perpetually in custody, arguing that the proper inquiry is whether the specific
circumstances present a serious danger of coercion and that a child’s age is only
one factor in that inquiry. The state relies on this court’s caselaw holding that an
interview is not a custodial interrogation unless it is conducted by the police or
under their direction or control, and, the state argues, there is no evidence that
Bradley had authority to enforce laws and make arrests or that she was an agent of
law enforcement.
{¶ 16} Accordingly, this case presents two related questions: First, is a
child-abuse investigator employed by a county children-services agency required
to provide the Miranda warnings before questioning a child suspected of
committing child abuse? And second, does the Due Process Clause of the
Fourteenth Amendment to the United States Constitution restrict the admission at
trial of an incriminating statement made by a child suspect to a county child-abuse
investigator during questioning?
Law and Analysis
The Protection against Self-Incrimination
{¶ 17} The Fifth Amendment to the United States Constitution provides that
“[n]o person * * * shall be compelled in any criminal case to be a witness against
himself.” This right applies to state action through the Due Process Clause of the
Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d
653 (1964). Moreover, “the constitutional privilege against self-incrimination is
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applicable in the case of juveniles as it is with respect to adults.” In re Gault, 387
U.S. 1, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); accord In re C.S., 115 Ohio St.3d
267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 72.
{¶ 18} The United States Supreme Court has “adopted a set of prophylactic
measures designed to safeguard the constitutional guarantee against self-
incrimination.” J.D.B. v. North Carolina, 564 U.S. 261, 269, 131 S.Ct. 2394, 180
L.Ed.2d 310 (2011). In Miranda, the court held that prior to questioning, a suspect
“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.” 384 U.S. at 444, 86 S.Ct. 1602, 16
L.Ed.2d 694. If these Miranda warnings are not given prior to a custodial
interrogation, the prosecution may not use the statements obtained from the suspect
at trial. Id. The court clarified, however, that by “custodial interrogation” it meant
“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.”
Id.{¶ 19} This court has consistently held that the Miranda warnings are
required only when the custodial interrogation is conducted by a law-enforcement
officer or an agent of law enforcement. E.g., Jackson, 154 Ohio St.3d 542, 2018-
Ohio-2169, 116 N.E.3d 1240, at ¶ 15; State v. Ferrette, 18 Ohio St.3d 106, 108-
109, 480 N.E.2d 399 (1985); State v. Bolan, 27 Ohio St.2d 15, 18, 271 N.E.2d 839(1971). We have noted that the term “law-enforcement officer” includes an officer
who has “a statutory duty to enforce laws and authority to arrest violators.” Jackson
at ¶ 27, citing R.C. 2901.01(A)(11) (defining “law enforcement officer”). And
agents of law enforcement, we have explained, are “ ‘those acting for * * * law
enforcement agencies by direction of the agencies” and do “not include private
citizens not directed or controlled by a law enforcement agency, even though their
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efforts might aid in law enforcement.’ ” (Emphasis deleted.) Id. at ¶ 15, quoting
Bolan at 18.
{¶ 20} In Jackson, we considered whether a social worker employed by a
children-services agency (as in this case, CCDFCS) was either a law-enforcement
officer or an agent of law enforcement when interviewing an alleged perpetrator.
Id. at ¶ 1. We rejected the proposition that a social worker’s statutory duty to
cooperate with and provide information to law enforcement regarding child-abuse
investigations converts the social worker into an agent of law enforcement. Id. at
¶ 21-22. We explained that the CCDFCS social worker was not a law-enforcement
officer, because she lacked the power to arrest, id. at ¶ 27, and that she was not an
agent of law enforcement because she had not interviewed the suspect at the
direction or control of the police, id. at ¶ 23. Therefore, we concluded, she was not
required to give the Miranda warnings prior to interviewing the suspect in her child-
abuse investigation. Id. at ¶ 28.
{¶ 21} Similarly here, Bradley was neither a law-enforcement officer nor
an agent of law enforcement. As Jackson explains, her duties to investigate child
abuse, to report her findings to police, and to cooperate in the criminal investigation
did not make her an agent of law enforcement. She testified that she was not a law-
enforcement officer and that she lacked the power to arrest. And although she
admitted having a relationship with police, the evidence in this record shows that
she did not operate under the direction or control of law enforcement: Detective
Cottom testified that she had not directed Bradley to conduct the interview and did
not even know that it had occurred until approximately two months later.
{¶ 22} Bradley’s status as a former police officer is irrelevant. Because she
was not a law-enforcement officer or an agent of law enforcement at the time of the
interview, she was not required to advise M.H. of his Miranda rights. It is therefore
unnecessary to decide whether M.H. was in custody at the time Bradley questioned
him.
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The Federal Due-Process Protection against Coerced Confessions
{¶ 23} In cases decided before and after the Fifth Amendment protection
against self-incrimination was first applied to the states, the United States Supreme
Court has analyzed the admissibility of a confession under the rubric of due process.
See Connelly, 479 U.S. at 163-164, 107 S.Ct. 515, 93 L.Ed.2d 473. We have
therefore explained that “[c]onstitutional principles of due process preclude the use
of coerced confessions as fundamentally unfair, regardless of whether the
confession is true or false.” State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73
N.E.3d 365, ¶ 31.
{¶ 24} However, in defining the protections due process affords against
coerced confessions, the Supreme Court has held that “coercive police activity is a
necessary predicate to the finding that a confession is not ‘voluntary’ within the
meaning of the Due Process Clause of the Fourteenth Amendment.” Connelly at
167; State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 77;
accord Barker at ¶ 31. “Absent police conduct causally related to the confession,
there is simply no basis for concluding that any state actor has deprived a criminal
defendant of due process of law.” Connelly at 164.
{¶ 25} In this case, obtaining M.H.’s confession was not causally related to
police conduct. As explained above, Bradley was not a law-enforcement officer
nor did she act under the direction or control of the police. Her status as a former
police officer is irrelevant. Further, the evidence shows that neither Detective
Cottom nor any other police officer was involved in Bradley’s interview of M.H.
And under the Supreme Court’s holding in Connelly, which we are obligated to
follow, the lack of a causal connection between police conduct and M.H.’s
confession is fatal to his claim that his confession was coerced in violation of his
federal due-process rights.
{¶ 26} The dissenting opinion maintains that “[n]othing in the Supreme
Court’s decision [in Connelly] suggests that the court intended its holding to
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establish a per se rule that police coercion is the only type of state action that can
violate a suspect’s due-process rights in the confession context.” (Emphasis sic.)
Dissenting opinion at ¶ 53. The dissent asserts that the Supreme Court’s reference
in Connelly to “police activity” “could reflect the specific facts of that case.” Id. at
¶ 54.
{¶ 27} However, we ought not assume that the court chose its words so
carelessly. Moreover, dissenting in Connelly, Justice Brennan understood the
majority to mean what it had said: “Today’s decision restricts the application of the
term ‘involuntary’ to those confessions obtained by police coercion. Confessions
by mentally ill individuals or by persons coerced by parties other than police
officers are now considered ‘voluntary.’ ” (Emphasis added.) Connelly, 479 U.S.
at 176, 107 S.Ct. 515, 93 L.Ed.2d 473 (Brennan, J., dissenting).
{¶ 28} Nor is our plain reading of the court’s holding in Connelly
inconsistent with Estelle v. Smith, 451 U.S. 454, 466-469, 101 S.Ct. 1866, 68
L.Ed.2d 359 (1981), or United States v. Mathis, 391 U.S. 1, 88 S.Ct. 1503, 20
L.Ed.2d 381 (1968). Neither of those decisions discuss the due-process protection
against coerced confessions. Rather, both of those cases involved the privilege
against self-incrimination, and the court decided in both cases that incriminating
statements were inadmissible because the interrogator had failed to obtain a waiver
of the accused’s Miranda rights.
{¶ 29} Moreover, the court in Estelle noted that the psychiatrist had acted
as an agent of law enforcement, Estelle at 467, whereas in Mathis, “the court ‘was
not called upon to decide whether the IRS employee was a “law enforcement
agent,” as the government apparently ceded that point.’ (Emphasis sic.),” Jackson,
154 Ohio St.3d 542, 2018-Ohio-2169, 116 N.E.3d 1240, at ¶ 25, quoting State v.
Bernard, 31 So.3d 1025, 1030 (La.2010).
{¶ 30} But even if there were some inconsistency between Connelly and
these decisions, the Supreme Court has explained that when precedent appears to
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be in conflict, lower courts “should follow the case which directly controls, leaving
to [the Supreme] Court the prerogative of overruling its own decisions.” Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104
L.Ed.2d 526 (1989). Connelly, not Estelle or Mathis, directly controls here.
{¶ 31} In any case, it is not obvious that the Supreme Court intended the
due-process protection against coerced confessions to apply to state employees who
are not law-enforcement authorities.
{¶ 32} The Due Process Clause precludes the admission of coerced
statements “not because such confessions are unlikely to be true but because the
methods used to extract them offend an underlying principle in the enforcement of
our criminal law: that ours is an accusatorial and not an inquisitorial system.”
Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961).
“It also turns on the deep-rooted feeling that the police must obey the law while
enforcing the law; that in the end life and liberty can be as much endangered from
illegal methods used to convict those thought to be criminals as from the actual
criminals themselves.” Spano v. New York, 360 U.S. 315, 320-321, 79 S.Ct. 1202,
3 L.Ed.2d 1265 (1959).
{¶ 33} It was “the advent of modern custodial police interrogation” that
brought “an increased concern about confessions obtained by coercion.” Dickerson
v. United States, 530 U.S. 428, 434-435, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000).
The Supreme Court adopted the suppression remedy to deter law enforcement from
violating the due-process rights of criminal suspects by making confessions
obtained from them through the use of coercive investigatory techniques
inadmissible at trial. See id.; Sanchez-Llamas v. Oregon, 548 U.S. 331, 349, 126
S.Ct. 2669, 165 L.Ed.2d 557 (2006). Application of the exclusionary rule depends
on whether “[t]he line between proper and permissible police conduct and
techniques and methods offensive to due process” has been crossed. Haynes v.
Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). M.H. does
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not point to a single case in which the United States Supreme Court held that a
confession obtained by a public employee who was not a member of law
enforcement must be suppressed as violative of due process.
{¶ 34} The Supreme Court has never repudiated or limited its holding in
Connelly, nor is that holding an outlier. In discussing the test for whether a
confession has been coerced in violation of a suspect’s due-process rights, the court
has pointed to “the crucial element of police coercion.” Withrow v. Williams, 507
U.S. 680, 693, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993), see also State v. Perez, 124
Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 71 (“the use of an inherently
coercive tactic by police is a prerequisite to a finding of involuntariness”).
{¶ 35} And in Perry v. New Hampshire, the court held that “the Due Process
Clause does not require a preliminary judicial inquiry into the reliability of an
eyewitness identification when the identification was not procured under
unnecessarily suggestive circumstances arranged by law enforcement.” (Emphasis
added.) 565 U.S. 228, 248, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). Justice
Ginsburg, writing for the court, explained that the aim of this rule was “to deter
police from rigging identification procedures,” so that “[w]hen no improper law
enforcement activity is involved,” the reliability of the identification may be
challenged through the rights and opportunities made available to the accused, such
as the right to counsel, cross-examination, and a verdict supported proof of guilt
beyond a reasonable doubt. Id. at 233.
{¶ 36} Applying the plain language of the Supreme Court’s holding in
Connelly, we conclude that in this case, there was no “coercive police activity,”
which “is a necessary predicate to the finding that a confession is not ‘voluntary,’
” 479 U.S. at 167, 107 S.Ct. 515, 93 L.Ed.2d 473.
M.H.’s Statement Was Not Coerced
{¶ 37} Assuming for the sake of argument that Bradley’s position as a
county employee triggered due-process protections when she interviewed M.H., the
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incriminating statements he made would not be involuntary in the constitutional
sense.
{¶ 38} The Supreme Court has applied the Due Process Clause of the
Fourteenth Amendment to examine “the circumstances of interrogation to
determine whether the processes were so unfair or unreasonable as to render a
subsequent confession involuntary.” Michigan v. Tucker, 417 U.S. 433, 441, 94
S.Ct. 2357, 41 L.Ed.2d 182 (1974). The court established a procedural safeguard
to ensure that “tactics for eliciting inculpatory statements * * * fall within the broad
constitutional boundaries imposed by the Fourteenth Amendment’s guarantee of
fundamental fairness.” Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 88
L.Ed.2d 405 (1985). Confessions obtained using interrogatory techniques that
offend the standards of fundamental fairness under the Due Process Clause may not
be used in court against the accused. Tucker at 441.
{¶ 39} An interrogator’s use of “ ‘an inherently coercive tactic (e.g.,
physical abuse, threats, deprivation of food, medical treatment, or sleep)’ ” triggers
the due-process analysis of the totality of the circumstances. State v. Osie, 140
Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 93, quoting State v. Clark, 38
Ohio St.3d 252, 261, 527 N.E.2d 844 (1988). Those circumstances include “the
age, mentality, and prior criminal experience of the accused; the length, intensity,
and frequency of interrogation; the existence of physical deprivation or
mistreatment; and the existence of threat or inducement.” State v. Myers, 154 Ohio
St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 77.
{¶ 40} The record in this case reveals that M.H.’s mother brought him to
CCDCFS to be questioned and that Bradley separated him from his mother, took
him to a room, and closed the door. Neither M.H. nor his mother objected. Bradley
did not inform M.H. of his right to stay silent or to end the interview, and she asked
M.H. questions that he answered. On cross-examination of Bradley at the
suppression hearing, M.H. did not elicit any testimony from Bradley that there were
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any improper threats, inducements, deprivations, mistreatment, or restraints, and
the “interrogation” involved a single session lasting approximately 40 minutes.
Further, M.H. did not take the stand to present evidence that his incriminating
statement was coerced.
{¶ 41} M.H. fails to demonstrate that this interview offends notions of
fundamental fairness, and instead, he seeks a per se rule that any questioning of a
13-year-old child is presumptively coercive based on a child’s degree of cognitive
and behavioral development. However, that claim is no different from the
argument rejected in Connelly that the accused’s mental illness rendered his
confession to police involuntary as a matter of psychological fact. Without any
overreaching by Bradley, M.H. cannot establish that his confession was involuntary
for purposes of due process.
Conclusion
{¶ 42} Absent evidence that a child-abuse investigator employed by a
county children-services agency is a law-enforcement officer or an agent of law
enforcement acting under the direction or control of the police, an interrogation is
not subject to the strictures of the Supreme Court’s decision in Miranda, 384 U.S.
at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, nor does federal due process restrict the
admission at trial of an incriminating statement made to the investigator during that
questioning.
{¶ 43} Because the child-abuse investigator in this case was neither a law-
enforcement officer nor acting under the direction or control of the police, she was
not required to provide M.H. with the Miranda warnings and his confession was
not obtained in violation of his due-process rights. The court of appeals correctly
determined that the trial court erred in suppressing his statement to the investigator.
{¶ 44} We therefore affirm the judgment of the Eighth District Court of
Appeals.
Judgment affirmed.
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FISCHER and DEWINE, JJ., concur.
FRENCH, J., concurs in judgment only.
STEWART, J., dissents, with an opinion joined by O’CONNOR, C.J., and
DONNELLY, J.
___________________
STEWART, J., dissenting.
{¶ 45} I agree with the majority that the child-abuse investigator, Esther
Bradley, did not have to give Miranda warnings to appellant, M.H., prior to
interrogating him in this case. The requirement under Miranda v. Arizona that the
police inform criminal suspects of their rights, including their right to remain silent,
is borne out of a recognition that custodial police interrogations are inherently
coercive. 384 U.S. 436, 467, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The warnings
are designed both to combat the coercive nature of custodial police interrogations
and to give suspects an awareness of the Fifth Amendment privilege against self-
incrimination so they have a full opportunity to exercise it. Dickerson v. United
States, 530 U.S. 428, 440, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), citing Miranda
at 467. Miranda’s requirements generally do not apply if either the suspect is not
in custody or the interrogator is not an agent of law enforcement. Oregon v.
Mathiason, 429 U.S. 492, 494-495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (law
enforcement not required to administer Miranda warnings when suspect is not in
custody); State v. Watson, 28 Ohio St.2d 15, 275 N.E.2d 153 (1971), paragraph five
of the syllabus (“Miranda requirements do not apply to admissions made to persons
who are not officers of the law or their agents”). But see Estelle v. Smith, 451 U.S.
454, 467, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (holding that Miranda warnings
were required to be given by a psychiatrist before conducting a court-ordered
psychiatric exam of a defendant being held in county jail because “[t]he
considerations calling for the accused to be warned prior to custodial interrogation
apply with no less force to the pretrial psychiatric examination at issue here”).
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Because precedent of this court establishes that Bradley was not a law-enforcement
officer or acting at the direction of law enforcement when she interrogated M.H.
pursuant to her statutory duty to investigate, see State v. Jackson, 154 Ohio St.3d
542, 2018-Ohio-2169, 116 N.E.3d 1240, ¶ 30, I agree with the majority’s
determination that Bradley was not required to administer Miranda warnings to
M.H.
{¶ 46} I nonetheless disagree with the lead opinion’s conclusion that the
lack of police involvement in this case is fatal to M.H.’s due-process claim. The
Due Process Clause of the Fourteenth Amendment to the United States Constitution
protects a defendant from coercive state action that results in an involuntary
confession. It is not limited to coercive actions taken by police. Because Bradley
is unquestionably a state actor and because I believe that the evidence shows she
acted coercively to obtain involuntary statements from M.H., I would reverse the
judgment of the Eighth District Court of Appeals and would reinstate the trial
court’s suppression order on the grounds that the use of M.H.’s involuntary
statements at trial would violate his due-process rights.
I. Federal Due-Process Protections Apply Because Bradley Is a State Actor
who Purposefully Sought Incriminating Information from M.H.
{¶ 47} I disagree with the lead opinion’s determination that the United
States Supreme Court’s holding in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct.
515, 93 L.Ed.2d 473 (1986), restricts Fourteenth Amendment due-process
protections to cases involving involuntary statements procured through coercive
police conduct.
A. The lead opinion misreads Connelly
{¶ 48} The question before the court in Connelly was whether the
prosecution’s use of a defendant’s random, unsolicited murder confession to a
police officer violated the defendant’s due-process rights. When Connelly
confessed, he was not a suspect in the case and had not been contacted by police.
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Rather, Connelly had devised a plan to confess to police after a schizophrenia-
induced voice, which he believed was the “voice of God,” told him to confess. Id.
at 161.
{¶ 49} To carry out the confession, Connelly flew from his home in Boston
to Denver, where the murder had taken place nine months earlier. Once there,
Connelly approached a uniformed police officer who was working in an off-duty
capacity in downtown Denver. Without any prompting, Connelly told the officer
that he had murdered someone and wanted to confess. The officer immediately
advised Connelly that he had the right to remain silent, that anything he said could
be used against him in court, and that he had the right to an attorney prior to any
questioning by police. Connelly stated that he understood his rights but still wanted
to talk to the officer about the murder because his conscience had been weighing
on him.
{¶ 50} After being informed of his rights a second time, Connelly was taken
to police headquarters. Once there, he proceeded to give a more detailed confession
to the murder. Officers fact-checked his confession and determined that the body
of an unidentified woman had been discovered four months earlier. Connelly
continued to provide details of the murder and even agreed to take officers to the
scene of the crime. Based on Connelly’s behavior throughout the course of his
interactions with the police, the police did not believe that he was suffering from
any kind of mental illness. It was not until the next day, during an interview by the
public defender’s office, that Connelly explained that “voices” had told him to
confess. Id.{¶ 51} In reviewing these facts, the Supreme Court of Colorado held that
Connelly’s confession was involuntary because, given his mental illness, it was not
the product of rational thought and free will. Importantly, the Supreme Court of
Colorado determined that the state-action requirement of the Fourteenth
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Amendment was satisfied by virtue of the admission of the confession as evidence
of Connelly’s guilt at trial. 479 U.S. at 162, 107 S.Ct. 515, 93 L.Ed.2d 473.
{¶ 52} The Supreme Court of the United States reversed the Colorado high
court’s decision after recognizing that the off-duty police officer in the case had
done absolutely nothing to provoke, coerce, or even solicit Connelly’s confession—
even if, given Connelly’s schizophrenia, the confession was not a product of his
freely exercised will. Specifically, the court stated:
Our “involuntary confession” jurisprudence is entirely
consistent with the settled law requiring some sort of “state action”
to support a claim of violation of the Due Process Clause of the
Fourteenth Amendment. * * *
The difficulty with the approach of the Supreme Court of
Colorado is that it fails to recognize the essential link between
coercive activity of the State, on the one hand, and a resulting
confession by a defendant, on the other.
Id. at 165. The court in Connelly made clear that the state’s role in the admission
of a confession at trial is not enough to satisfy the Fourteenth Amendment’s state-
action requirement. Rather, due-process scrutiny is required only when the state
action in procuring the confession is coercive. See id. at 166-167.
{¶ 53} Given that the overall context of Connelly discusses the need for
coercive “state action” that results in an involuntary statement, it is imprudent for
the lead opinion to conclude that due-process scrutiny applies only to state action
by the police. Nothing in the Supreme Court’s decision suggests that the court
intended its holding to establish a per se rule that police coercion is the only type
of state action that can violate a suspect’s due-process rights in the confession
context. Besides, such a narrow reading of the court’s holding in Connelly would
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undermine the purpose of the due-process protection in the first place—namely, to
protect us from the government’s use of “constitutionally impermissible methods”
to obtain a confession, Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 5
L.Ed.2d 760 (1961). As the Supreme Court stated in the first case in which it
applied that due-process protection to the states, “[t]he due process clause requires
‘that state action, whether through one agency or another, shall be consistent with
the fundamental principles of liberty and justice which lie at the base of all our civil
and political institutions.’ ” (Emphasis added.) Brown v. Mississippi, 297 U.S.
278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (1936), quoting Hebert v. Louisiana, 272 U.S.
312, 316, 47 S.Ct. 103, 71 L.Ed. 270 (1926); see Malloy v. Hogan, 378 U.S. 1, 6,
84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Moreover, both the Supreme Court and this
court have previously suppressed confessions extracted by nonpolice state actors
when the circumstances surrounding the confessions showed they were compelled
and therefore involuntary. See Estelle, 451 U.S. at 466-469, 101 S.Ct. 1688, 68
L.Ed.2d 359 (holding that admission at trial of confession obtained by court-
appointed psychiatrist violated defendant’s right not to incriminate himself); United
States v. Mathis, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968) (holding that
incriminating statements extracted by Internal Revenue Service agent should have
been suppressed);1 Spano v. New York, 360 U.S. 315, 319, 79 S.Ct. 1202, 3 L.Ed.2d
1. The lead opinion’s efforts to distinguish Estelle and Mathis are unpersuasive. It does not matter
that both cases were decided on grounds concerning the Fifth Amendment privilege against
compulsory self-incrimination, because it is the privilege against self-incrimination that animates
the due-process protection. See Davis v. North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16
L.Ed.2d 895 (1966) (“The standard of voluntariness which has evolved in state cases under the Due
Process Clause of the Fourteenth Amendment is the same general standard which applied in federal
prosecutions—a standard grounded in the policies of the privilege against self-incrimination”). Nor
is it true that the court in Estelle found the psychiatrist to be an agent of law enforcement. What the
court said was that the psychiatrist was acting as “an agent of the State” when recounting unwarned
statements made to him during a court-ordered competency investigation. Estelle, 451 U.S. at 467,
101 S.Ct. 1866, 68 L.Ed.2d 359.
Moreover, despite this court’s reliance in Jackson, 154 Ohio St.3d 542, 2018-Ohio-2169,
116 N.E.3d 1240, on certain statements made by the Supreme Court of Louisiana regarding Mathis,
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January Term, 2020
1265 (1959) (reversing conviction based on involuntary confession extracted by
assistant district attorney); State v. Roberts, 32 Ohio St.3d 225, 513 N.E.2d 720(1987), syllabus (affirming reversal of conviction following admission of
incriminating statements extracted by probation officer).
{¶ 54} Given the Supreme Court’s prior decisions in the involuntary-
confession context, I find that the court’s reference in Connelly to “police activity”
has a meaning different from the one the lead opinion gives it. For instance, the
court’s reference to “police activity” could reflect the specific facts of that case—
that the state actor and passive recipient of Connelly’s confession happened to be a
police officer. See State v. Evans, 144 Ohio App.3d 539, 561-562, 760 N.E.2d 909(1st Dist.2001) (reaching this conclusion). Had the passive recipient of Connelly’s
confession been the city’s mayor or the district attorney or some other government
employee, the court’s analysis would not have been any different. That is because
the court’s judgment reversing the judgment of the Colorado Supreme Court was
based on the absence of government coercion and not the title or designation of the
state actor involved.
there is no indication in the decision that the government conceded that the IRS civil investigator
who extracted the incriminating statements was an agent of law enforcement. In fact, whether the
IRS civil investigator was an agent of law enforcement seems to have been of little consequence to
the court given that the agent was nevertheless a government actor questioning a person in state
custody about facts that had the potential to lead to a criminal prosecution. See id. The Louisiana
Supreme Court’s assertion that the government “apparently ceded the point” that the IRS civil
investigator was an agent of law enforcement seems to have rested on the premise that Miranda’s
requirements apply only to law enforcement, see State v. Bernard, 31 So.3d 1025, 1030 (La.2010),
but in light of Estelle, that is not always true.
And lastly, this dissenting opinion does not state that Estelle and Mathis are controlling in
this matter. These decisions are offered to refute the lead opinion’s assertion—based on little more
than a statement in Connelly taken out of context—that only police coercion can count in the
involuntary-confession context. At the very least, Estelle and Mathis call this position into serious
question, and they would be inconsistent with Connelly—and Connelly would control—only if one
assumes what the lead opinion has not shown—that Connelly established a per se rule that due-
process protections apply to limit only the coercive conduct of state actors who are police. Indeed,
the lead opinion tacitly acknowledges its shortcomings in this regard because even after all the
arguments it makes against the application of due-process scrutiny, the lead opinion reluctantly—
albeit in an overly simplified fashion—conducts a totality-of-the-circumstances analysis anyway.
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{¶ 55} A better explanation is that “police activity” means something
broader than the actions taken by those who are actually police officers or their
agents. Indeed, this interpretation of Connelly is not unique. Several federal and
state courts have agreed that the due-process voluntariness inquiry is not limited to
cases involving confessions made to the police. See, e.g., United States v. D.F., 63
F.3d 671, 680 (7th Cir.1995), vacated and remanded on other grounds, 517 U.S.
1231, 116 S.Ct. 1872, 135 L.Ed.2d 169 (1996); Luna v. Massachusetts, 354 F.3d
108, 111 (1st Cir.2004); Running v. United States, D.S.D. No. 3:13-CV-03007-
RAL, 2016 U.S. Dist. LEXIS 70541, *16-17 (May 31, 2016); United State v.
Codrington, E.D.N.Y. No. 07 MJ 118, 2008 U.S. Dist. LEXIS 35859, *29-30 (May
1, 2008); In re Timothy C., 194 Ariz. 159, 978 P.2d 644, ¶ 14 (Ariz.App.1998);
State v. Bright, 683 A.2d 1055, 1060 (Del.Sup.Ct.1996). Instead, these courts and
others have taken the position that for due-process protections to apply, the
interrogation “must be at the hands of a government actor whose questioning is of
a nature that reasonably contemplates criminal prosecution.” United States v. D.F.,
115 F.3d 413, 420 (7th Cir.1997). In other words, “the state actor’s questioning of
the defendant must have as one of its purposes, definitive or contingent, the use of
the statement in a criminal prosecution.” (Footnote omitted.) D.F., 63 F.3d at 684.
Usually, the “state actor[ ] questioning * * * the defendant” with the purpose of
“us[ing] * * * the statement in a criminal prosecution” will be a police officer. But
not always—and not here.
B. Bradley, although not a police officer, is clearly a state actor within the
meaning of Connelly (as properly understood)
{¶ 56} In this case, Bradley, a child-abuse investigator, was acting in her
official capacity as an agent of Cuyahoga County in the Sex Abuse Intake Unit of
the Cuyahoga County Department of Children and Family Services (“CCDCFS”)
when she questioned M.H. In this capacity, Bradley had a statutory duty to
22
January Term, 2020
investigate reports of child abuse and to report her findings to law enforcement.
See R.C. 2151.421(G)(1).
{¶ 57} At the suppression hearing, Bradley acknowledged that at her first
meeting with the alleged victim and her mother in late September 2015, she advised
the alleged victim’s mother to file a police report. Bradley also admitted that at the
time she questioned M.H. in early December 2015, she knew that a police report
had been filed, that a detective had been assigned to the case, and that criminal
charges were, as she put it, a “strong possibility.” In fact, Bradley testified that one
of her primary purposes for questioning M.H. was to find out whether he had
engaged in any criminal sexual activity with the alleged victim and, if so, to pass
that information on to law enforcement.
{¶ 58} The record further shows that although Cleveland Police Detective
Christina Cottom had been assigned to the case since mid-October 2015, she never
conducted her own interview of the alleged victim or M.H. Instead, Detective
Cottom’s investigation relied on the interviews Bradley had conducted. And
although Detective Cottom testified that she had neither directed nor controlled
Bradley’s interviews, she also testified that the arrangement between police and
CCDCFS was such that she knew that she would be provided with Bradley’s write-
up of her investigation and that it would be used in furtherance of the criminal
investigation. These facts demonstrate that Bradley’s questioning of M.H. was
designed in large part to assist the state in its investigation and prosecution of M.H.
Accordingly, I would conclude that the Due Process Clause of the Fourteenth
Amendment, which protects us from the admission of involuntary statements as
evidence at trial, see Rogers, 365 U.S. at 540, 81 S.Ct. 735, 5 L.Ed.2d 760, is
implicated here.2
2. The lead opinion places undue emphasis on the fact that the United States Supreme Court’s
involuntary-confession jurisprudence has focused almost exclusively on police action. I do not
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II. M.H.’s Statements to Bradley Were Involuntary
{¶ 59} When a defendant challenges the voluntariness of a confession, the
prosecution has the burden of establishing that the confession was voluntarily
made, in view of the totality of the circumstances. State v. Ford, 158 Ohio St.3d
139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 194. Among other relevant factors, courts
must consider “ ‘the age, mentality, and prior criminal experience of the accused;
the length, intensity, and frequency of [the] interrogation; the existence of physical
deprivation or mistreatment; and the existence of [a] threat or inducement.’ ” Id.,quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph
two of the syllabus, sentence vacated on other grounds, 438 U.S. 911, 98 S.Ct.
3147, 57 L.Ed.2d 1155 (1978). Moreover, when a confession is extracted from a
juvenile without the benefit of counsel, “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
dispute this, nor is this surprising. It is the duty of law-enforcement officials to detect and investigate
crimes. It would be highly unusual for a state actor of a different sort to randomly pick up a mantle
specifically reserved for law enforcement, unless required to do so—which is precisely the situation
we have before us. In Ohio, R.C. 2151.421(G)(1) does not merely authorize children-services agents
to conduct investigations related to allegations of child abuse; the statute requires them to do so—
and then requires them to report those findings to law enforcement. In this limited way, the Ohio
General Assembly requires children-services agents to act in ways that mirror the investigative
actions typically reserved for law enforcement.
If a certain state actor is authorized to act in a way that mirrors law enforcement and that
person wrings a confession out of the mouth of a suspect so that it may later be used against the
suspect at trial, that action should be subject to constitutional scrutiny. The lead opinion offers no
clear doctrinal explanation for rejecting that conclusion, because there is none.
Imagine that Bradley had beaten M.H. until he finally relented and confessed to the crime,
like the police did in Brown, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, the first case in which the
United States Supreme Court found a confession to be involuntary under the Due Process Clause of
the Fourteenth Amendment. Or imagine that she had explicitly threatened to have M.H. removed
from his mother’s home if he did not confess—conduct similar to the actions taken by police in
Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963), another case in which the
United States Supreme Court found a due-process violation. What the lead opinion says today is
that even if Bradley had engaged in such conduct, the state could still use M.H.’s confession against
him at trial without violating his due-process rights—not because M.H.’s statements were actually
voluntary but because Bradley is not a police officer or an agent of law enforcement. Such an
analysis completely parts ways with logic.
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January Term, 2020
fantasy, fright or despair.” (Emphasis added.) In re Gault, 387 U.S. 1, 55, 87 S.Ct.
1428, 18 L.Ed.2d 527 (1967). In light of the totality of the circumstances
surrounding Bradley’s interrogation of M.H., it strains credulity to say that M.H.’s
statements to her were voluntary. See Dickerson, 530 U.S. at 434, 120 S.Ct. 2326,
147 L.Ed.2d 405, quoting Stein v. New York, 346 U.S. 156, 185, 73 S.Ct. 1077, 97
L.Ed. 1522 (1953) (the voluntariness determination “ ‘depends upon a weighing of
the circumstances of pressure against the power of resistance of the person
confessing’ ”).
A. M.H. was never advised of his rights, and the record does not show that he
understood them
{¶ 60} The record is devoid of any evidence showing that Bradley, or
anyone else for that matter, made sure that the juvenile M.H. knew that he had
rights—much less that he understood them. Nor did Bradley ever directly
communicate with M.H. prior to the questioning, and she never informed him of
the serious allegations against him—a violation of the same statute that authorized
Bradley’s investigation. R.C. 2151.421(G)(1) (“A representative of the public
children services agency shall, at the time of initial contact with the person subject
to the investigation, inform the person of the specific complaints or allegations
made against the person”). In fact, at no point during the questioning did Bradley
even explain to M.H. why he was in the interrogation room with her. Along the
same lines, Bradley testified that she did not administer Miranda warnings to M.H.
or otherwise attempt to explain to him in more basic terms that he had the right not
to speak to her. According to Bradley, it was her understanding that she did not
have to inform M.H. of his rights because she was not a member of law
enforcement.
{¶ 61} It appears that before the interrogation, Bradley did, to some extent,
inform M.H.’s mother that sexual-assault allegations had been levied against her
son. Nevertheless, the testimony given at the suppression hearing reveals that
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Bradley failed to candidly inform M.H.’s mother about the nature of the questioning
she intended to conduct. Bradley initiated contact with M.H.’s mother by leaving
a letter at her residence when she was not home. This letter was cryptic and vague,
stating merely that M.H. had been named in an open sex-abuse investigation with
CCDCFS and that Bradley needed to speak with him about the allegations. The
letter also contained a specific date and time for M.H.’s mother to bring M.H. in
for questioning.
{¶ 62} It is clear from M.H.’s mother’s testimony that she did not view the
already scheduled questioning as something that was optional for her and her son.
When M.H.’s mother called Bradley to discuss the letter, Bradley told M.H.’s
mother that her questioning of M.H. would be “private,” without ever disclosing
that she was duty-bound to report M.H.’s answers to law enforcement. M.H.’s
mother testified that had she known “private” meant that she would not be allowed
in the room with her child during the questioning, she would not have allowed the
questioning to proceed without first getting her child an attorney. Furthermore,
M.H.’s mother testified that she did not become aware of CCDCFS’s standard
practice of not allowing parents in the interrogation room until she arrived at the
county building with her son, at which point she felt that she could not stop the
questioning from proceeding because her son was already there.
{¶ 63} I agree with the conclusion reached in the concurring opinion in the
court of appeals that the record shows that M.H.’s mother understood Bradley’s
statement regarding the “private” nature of the questioning to be an assurance that
Bradley would not be sharing the information that she obtained from the
questioning with anyone else—least of all law enforcement. See 2018-Ohio-4848,
¶ 46 (Keough, J., concurring). Accordingly, even if M.H.’s mother relayed to him
what little information Bradley had provided to her, it is doubtful that this
information by itself would have made M.H. aware of the seriousness of the
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allegations against him or the fact that anything he said to Bradley could be used
against him in a delinquency proceeding.
{¶ 64} Rather than point to affirmative evidence in the record establishing
that M.H. knew his rights and freely chose to waive them, the state takes the
position that nothing in the record shows that M.H. was in fact ignorant of his rights.
This position is both legally and factually unsound. To start with, it is the state that
has the burden of establishing the voluntariness of an inculpatory statement if it
wishes to use the statement at trial. Missouri v. Seibert, 542 U.S. 600, 608, 124
S.Ct. 2601, 159 L.Ed.2d 643 (2004) (lead opinion), fn. 1, citing Lego v. Twomey,
404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). An alleged lack of
evidence as to whether a suspect knew and understood his rights is not proof of
voluntariness. Furthermore, that M.H. was never informed of his rights prior to the
questioning and was only 13 years old at the time of the questioning is evidence
that M.H. did not know or understand the rights he was giving up by answering
Bradley’s questions. This evidence, in turn, weighs against voluntariness. See
Escobedo v. Illinois, 378 U.S. 478, 499, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)
(White, J., dissenting) (“The failure to inform an accused that he need not answer
and that his answers may be used against him is very relevant indeed to whether
the disclosures are compelled”). And although the state takes the position that any
ignorance on the part of M.H.’s mother regarding her son’s rights should not be
imputed to him, the fact that M.H.’s mother—an adult who was better informed—
lacked a sufficient understanding of M.H.’s rights also weighs against determining
that he knew and understood his rights at the time of the interrogation. Based on
this evidence, I would conclude that M.H.’s statements were not voluntarily made
with knowledge of the rights he was forfeiting by talking to Bradley.
B. The setting was highly coercive
{¶ 65} I would also conclude that the setting of the interrogation and the
circumstances leading up to it produced what would be an inherently coercive
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environment to a 13-year-old child—one where M.H. would not have felt free to
ignore Bradley’s questions and/or leave the interrogation room. The interrogation
took place in a government building in which police officers were present. M.H.
had no prior contact with Bradley before arriving at the building, and soon after
arriving, he was taken away from his mother and escorted to a secluded room to be
questioned behind closed doors by a total stranger. His mother was not permitted
to be in the room during the interrogation, and there was no adult present to
represent M.H.’s interests or act as an intermediary between him and his
interrogator.
{¶ 66} Additionally, Bradley was not merely an ordinary case worker. She
was a case worker who had been professionally trained in law enforcement. As her
testimony at the suppression hearing revealed, Bradley had spent more than ten
years working for the Atlanta police department prior to joining CCDCFS. She
spent three of those years working as a general investigator and the last one and a
half years in the homicide unit. Her testimony also revealed that in general, she
would begin her questioning with “rapport building questions” and that in this case,
she asked M.H. about his birthday, his school, and some of his favorite things.
Thereafter, her questioning of M.H. became more direct, moving on to the purpose
of the interrogation.
{¶ 67} In this case, Bradley proceeded to ask M.H. several direct questions
about his prior sexual activity. It must be noted that although Bradley’s job title at
CCDCFS was child-protection specialist and she was not an employee of a law-
enforcement agency, both the interrogation atmosphere and Bradley’s structuring
of her questions are strikingly similar to the type of police interrogation practices
that the Supreme Court found inherently coercive in Miranda. See 384 U.S. at 449-
452, 86 S.Ct 1602, 16 L.Ed.2d 694, and fn. 9 (citing police manuals directing
officers to isolate the suspect by conducting the interrogation in a location
unfamiliar to the suspect and away from the suspect’s family and friends, then to
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January Term, 2020
begin with more sympathetic relationship-building questions before moving on to
more hostile questioning). Under these circumstances, a 13-year-old child would
not have felt he had any choice but to remain in the closed room and answer
Bradley’s questions. In fact, the record reveals that once Bradley returned M.H. to
his mother following the interrogation, M.H. appeared quiet and nervous—
suggesting that his admissions were not voluntary.
C. Bradley coercively co-opted M.H.’s mother in her plan
{¶ 68} Furthermore, the way that Bradley went about scheduling the
interrogation suggests that she intentionally took advantage of M.H.’s mother’s
parental authority to obtain M.H.’s cooperation. Bradley chose to communicate
only with M.H.’s mother without verifying that M.H. was willing to speak with her.
In other words, it was M.H.’s mother, not M.H., who agreed to the questioning, and
it was she, not he, who agreed to go to the county building for the questioning.
Bradley allowed M.H.’s mother to make these arrangements for her son, while
choosing not to notify M.H.’s mother that a police report had been filed, that she
had a duty to report the results of her investigation to the police, or that there was
no requirement that M.H. ever speak with her in the first place. Under these
circumstances, I cannot agree with the state’s position that M.H. had the agency to
make a free and voluntary statement to Bradley, when he never had a choice
whether to attend the interrogation.
III. Conclusion
{¶ 69} For the foregoing reasons, I would conclude that this case implicates
the Due Process Clause’s protection against coercive state action because Bradley
is a state actor who purposefully sought incriminating information from M.H. I
would further conclude that under the totality of the circumstances—which include
M.H.’s age, his lack of understanding of his rights, and Bradley’s failure to candidly
inform M.H.’s mother of the nature of the questioning—the statements that M.H.
made during the course of the interrogation were involuntary. Accordingly, I would
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reverse the judgment of the Eighth District Court of Appeals and would reinstate
the trial court’s suppression order on the grounds that the admission of M.H.’s
involuntary statements at trial would violate his due-process rights.
O’CONNOR, C.J., and DONNELLY, J., concur in the foregoing opinion.
___________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Jennifer M. Meyer and Anthony T. Miranda, Assistant Prosecuting Attorneys, for
appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and Paul A. Kuzmins,
Assistant Public Defender, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor, and
Samuel C. Peterson, Deputy Solicitor, urging affirmance for amicus curiae
Attorney General Dave Yost.
Juvenile Law Center and Marsha L. Levick; and Ballard Spahr, L.L.P., and
Lisa B. Swaminathan, urging reversal for amicus curiae Juvenile Law Center.
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