“The trial court here, and the court of appeals, have determined the facts in this case suggest that the supervisor was an agent of the police. So, what about the facts in this case indicate otherwise?”
Justice DeGenaro, to the assistant prosecutor
On July 31, 2018, the Supreme Court of Ohio heard 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 resource 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 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. 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 the juvenile court judge.
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.
Read the oral argument preview of the case here.
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. 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 (2nd 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))
In re McDonald, 2007-Ohio-782 (11th Dist.) (Questioning a student at a school is not inherently custodial interrogation.)
In re G.J.D., 2010-Ohio-2677 (11th 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. 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.)
At Oral Argument
Arguing Counsel
Christina E. Mahy, Assistant Prosecuting Attorney, Montgomery County, for Appellant State of Ohio
Michael E. Deffet, Assistant Public Defender, Law Office of the Public Defender, Montgomery County, for Appellee L.G.
State’s Argument
Director Bullens was not acting as an agent of law enforcement when he interviewed L.G. in the school cafeteria about the bomb threat. He was doing his job to secure the safety and integrity of the school. The fact that that goal ran parallel to the general peacekeeping duties of police officers does not automatically make him their agent. The police were there to clear the school to make sure there was no bomb present. But after they cleared the school Director Bullens was the one in charge—he set up command in the cafeteria, got the information that led to LG as the suspect, and had LG brought to him.
The lower courts made two fundamental errors in this case. Both courts erroneously considered L.G.’s subjective viewpoint in determining whether or not Director Bullens was law enforcement, and in determining that no reasonable 13-year-old in L.G.’s shoes would view him as anything other than law enforcement. That is wrong. The question is an objective one. Neither the viewpoint of L.G. or of anyone else was relevant to that determination.
The second error was in looking at the issue of entanglement, and working hand-in-hand with the police, and in doing so, ignoring the real question —which is whether Director Bullens was under the direction and control of the police when conducting the interview. He was not. The police did not give Director Bullens any orders, they did not tell him to interview L.G. or tell him the questions to ask or the information they wished to elicit. The record in this case is very clear that nothing of this sort occurred. There was no direction and control, and there was no opportunity for it, because there was no communication between law enforcement and Director Bullens between the time L.G. was identified as a suspect and the time he was interviewed.
The question, as this court recently set forth in State v. Jackson, is when Director Bullens interviewed L.G., was he doing so because law enforcement asked him to, and in this case, he was not. This court has been very clear. Even if Director Bullens’ goal is to assist law enforcement, even if his goals are parallel to theirs, that is not dispositive. Director Bullens’ goal is not what controls here; it’s the actions of law enforcement in giving him orders, and in him following those orders. He simply was not under their direction and control.
We also know that L.G. knew he did not have to cooperate with the interview because he didn’t fully do so. Although he admitted his own involvement, he refused to tell who else was involved with him. The factors associated with formal arrest did not exist here. And although L.G. disputed Director Bullens’ testimony that Bullens had told L.G. he did not have to answer the Director’s questions, the lower courts did not make a determination as to whose testimony they found more credible on that issue.
The state asks the court to adopt this syllabus: “a school employee who interviews a suspect is not required by the Fifth Amendment or by Article I Section 10 of the Ohio Constitution to read that suspect Miranda warnings unless evidence demonstrates that he was acting under the direction and control of law enforcement.” And the state submits that in this case, Director Bullens was not.
L.G.’s Argument
There are two issues in this case—whether L.G. was in custody, and whether Mr. Bullens was acting as an agent of law enforcement in this situation. The courts below got it right. They applied the correct standards, used the correct analyses, and came up with a reasonable and correct answer.
Mr. Bullens is an employee of the school. He runs its safety department and supervises 26 police officers and other people. He is a government employee with law enforcement duties.
Mr. Bullens was working with the police from the very beginning of this incident. He immediately made decisions with police about the use of dogs to sniff for bombs, whether the students should be allowed back into the building, whether they should be sequestered, or isolated. The reward money was offered through the police crime-stoppers program, which required police permission. Clearly what Mr. Bullens was doing was investigating a felony in this situation, and at no time did he do that isolated from the police. He did that with the police literally standing beside him, asking permission from the police to take certain actions and reporting certain information to the police.
Mr. Bullens sent a police officer that he supervised to retrieve the 2 students who apparently had some information about L.G. and ordered the officer to bring L.G. to him. L.G. found himself separated from all the other students, sitting across the table from Mr. Bullens, who was flanked by two armed uniformed police officers. The courts below correctly and reasonably found that any 13 year old in that situation is not going to feel that he can get up and walk away.
This case is distinguishable from the court’s recent decision in State v. Jackson. That case involved an adult who was being questioned, and one who had already been read his Miranda rights earlier by police. As both this court and the U.S Supreme Court have said, a juvenile’s rights have to be specially cared for. Juveniles are at much more risk of giving false confessions, of acting on impulse, and out of ignorance. L.G. was in an alternative school– a school filled with students who couldn’t function for one reason or another in a regular school. That probably means L.G. was even more likely than a typical 13 year old not to understand his rights, to act on impulse, or to be coerced when questioned about such a serious matter as this.
The state is simply asking the court to re-do the analyses the lower courts did. L.G. urges this court to make an even stronger statement than it did in 2016 that juveniles have to be protected in these situations.
What Was On Their Minds
Bullens’ Role
Is Bullens a peace officer in Ohio, asked Justice O’Donnell? Is he an employee of the school system, or a different agency? Is he a private citizen? As a result of the interrogation, wasn’t LG arrested? Was he arrested by Bullens or by the police officers? O’Donnell commented that there must have been some conversation at some point between Bullens and the police officers for them to have the authority to arrest LG.
Why were the police at the school, asked Chief Justice O’Connor? Was it Bullens who offered the reward? Who did the two students tell it was L.G. who did it? Is a school resource officer not an actor in the pursuit of a state action?
Wasn’t Bullens’ purpose, unlike the security guard in Bolan, to assist in the criminal investigation, asked Justice DeWine?
Didn’t a school resource officer with the power to arrest, report to Bullens, asked Justice Fischer? So the police, in this case, are under the control of the school?
Direction and Control
Does the law require direction and control to be an agent of law enforcement, asked Justice DeWine? If the police come to a school resource officer and say can you help us out, we aren’t going to tell you what to say, but anything you can find out will help us prosecute this person, is that ok? It’s not under the direction or control? We want your help, but they are not directing, they are not controlling, they are not saying what to say, you are perfectly free not to help us, is that ok?
The question seems to be whether or not Bullens was acting as an agent of law enforcement at the time of the interrogation, noted Justice O’Donnell. We are reviewing a record made by a juvenile court judge as factfinder that finds that Bullens was acting as an agent of the police officers. How do we deal with that? Aren’t we bound by the factual record made by the trial court in this case? Justice DeWine added that the appeals court had also made a factual finding that Bullens’ questioning of L.G. was part of the criminal investigation, not simply the school district investigation into the bomb threat, and asked if the state disagreed. The assistant prosecutor disagreed, with both factual findings. Justice O’Donnell went on, asking, what about the level of cooperation between Bullens and the police officers who were present in the room at the time of the interrogation? Isn’t that a factor to consider in determining whether or not Bullens is or isn’t an agent of law enforcement? Do we need to clarify what we mean by acting as an agent of law enforcement, or under the direction and control—does that need to be defined more completely for other cases?
Custody
L.G. was 13 years old—could he have just gotten up and said, I’m leaving, asked Chief Justice O’Connor?
Was L.G. ever told he could leave if he wanted to, asked Justice Fischer?
The issue of whether L.G. was in custody isn’t before the court, is it, asked Justice DeWine, adding that the issue accepted by the court, whether constitutional protections only apply when there is state action, has nothing to do with custody or juveniles. He added that the state had not appealed the issue of custody.
The Interrogation of L.G.
Did this interrogation take place in the cafeteria, asked Justice O’Donnell? How many police officers were present during Bullens’ interrogation of LG? Is there anything to indicate the distance that the police officers were from the table or the area of the interrogation? Would it make any difference if the principal conducted this interrogation?
What difference does it make how many police officer were present, asked Chief Justice O’Connor, commenting that there were uniformed police officers who L.G. could see in the vicinity of where he was being questioned. Was L.G. going to be a suspect so the school could level detention, or was he going to be a suspect because this was a crime? Clearly Bullens is not there and the police aren’t standing 10 feet away just so they can figure out whether L.G. gets an in-school suspension, she added.
The school resource officer brought L.G. to the cafeteria, commented Justice Fischer. Didn’t he have the power to arrest on the campus? So he was brought in by somebody who could arrest him? He’s 13 years old—did he ever know he was not under arrest—was he ever told that? Was he told “you could leave if you wish?”
State v. Jackson
In Jackson, we have a social worker that’s a state employee, who was working with police, and this court determined that factually that was not sufficient to make her an agent of the state. Here, we have the supervisor of the resource officers, a state employee, who is working with police, commented Justice DeGenaro, adding that the fact patterns seemed identical. What is the distinguishing fact that would lead this court to a different outcome?
How It Looks From The Bleachers
To Professor Emerita Bettman
Like a win for L.G. While the court has been very stingy about finding various professionals who work with police to be agents of law enforcement, most recently declining to find a social worker to be one in State v. Jackson, the court (most especially the Chief) has also been very protective of juveniles. Even Justice O’Donnell, never sympathetic to juvenile offenders, seemed in L.G.’s corner in this one.
Despite Justice DeGenaro’s remarks at one point that she saw no difference between this case and Jackson (in which she was the lone dissenter) I think a majority, including her, will distinguish Jackson mostly because of the factual findings below by both courts that Bullens was acting as an agent of law enforcement, and by the fact that L.G., unlike Jackson, was a juvenile. Much was made of all this, with Ms. Mahy gamely arguing that the lower courts determined both the facts and the law incorrectly. (I personally think the question of whether Bullens was acting as an agent of law enforcement is a mixed question of law and fact, which the lower courts got right.) There was an awful lot of entanglement in this case between Bullens—apparently a public school employee—and the police, which Mr. Deffet detailed, most ably.
There is no question that police presence is becoming more common at schools, and school resource officers work closely with them. Many school resource officers are former or retired police officers themselves. The question of whether a school resource officer was acting as an agent of police was actually raised last year in State v. Polk,2017-Ohio-2735, but because of the holding in the case, the court did not need to resolve that issue. I got sufficiently interested in this to read an excellent law review article which is cited in this case in the amicus brief of the Juvenile Law Center et al—which I highly recommend—“Recess is Over: Granting Miranda Rights to Students Interrogated Inside School Walls,” by Kristi North, 26 Emory L.J. 441 (2012). It makes a very persuasive case for why students should be Mirandized in situations just like this one.
One last thing. The magistrate and juvenile court judge found that L.G. was in custody in this situation, and the appeals court affirmed. While Justice DeWine is correct that the state did not appeal that finding, I think the issue of custody is very much in play here. Both sides briefed and argued it extensively. The magistrate and juvenile court judge found L.G. was in custody, and I think a majority of the high court will, as well. What reasonable 13-year-old would believe he was free to leave in that situation, as Justice Fischer asked?
This was a very hot bench, with the state getting the bulk of very skeptical questioning. Both lawyers argued very well.
To Student Contributor Mark Tassone
In the State’s view, what matters “is the actions of law enforcement.” The State more or less abandoned the proposition that L.G. was not in custody, choosing instead to focus on Bullens’ role as an agent of law enforcement. The facts support this contention, since there was no conversation between Bullens and the DPD between the identification and questioning of L.G. Nevertheless, the bench did not seem to bite. Multiple Justices seemed reluctant, if not adverse, to contradicting the trial court and the appellate court’s determination of Bullens as an agent of law enforcement.
L.G. immediately attacked Bullens’ role as an agent of law enforcement. In particular, L.G. pointed out that Bullens had to ask a DPD detective for permission to offer a reward, implicating DPD’s control in the situation. The bench soon went quiet, allowing L.G. an opportunity to distinguish this case on the facts and address the concern over L.G.’s status as a juvenile. L.G.’s strongest point, in my opinion, was, however, the need for a clear ruling from this Court on Miranda rights as applied to juveniles specifically.
The simple balance of questions weighted against the State demonstrates how this Court will rule. The lower courts ruled appropriately. Bullens was an agent of law enforcement. L.G. wins.