Of bright lines and bookbags
Benjamin Oles was stopped for a marked lanes violation. When the officer approached the car, he noticed an odor of alcohol. In an effort to determine the source, he put Oles in the front seat of the cruiser and asked him some questions. First question: "Did you have anything to drink tonight?"
Answer: "I had four mixed drinks at a wedding."
That brings us to the hearing on the motion to suppress in Oles' DUI case, where the trial court decides that the officer should've Mirandized Oles before asking him any questions. The 8th District affirms on that basis.
And yesterday, the Ohio Supreme Court convened oral argument to decide whether that was right.
Miranda is triggered by a custodial interrogation. There's a popular conception that the test is whether the defendant believes he's free to leave, but that's not true. If The Man pulls you over for a traffic violation, your deciding that it would be a good idea to peel out as he's approaching the car will land you in some trouble, but that doesn't mean he has to preface the old "Do you know how fast you were going?" with advice about the right to remain silent. Miranda is required for a custodial interrogation; hence, the suspect's belief that he is in custody, of the type normally associated with an arrest, is the key factor.
The State in Oles wanted a simple, bright-line rule: just being placed in a police cruiser is not "custody" necessitating the Miranda warnings. The 8th District, in certifying the case to the Supreme Court, had cited four other cases from other districts which said basically that.
And it's true: just placing the suspect in a police cruiser isn't enough. There's a Supreme Court case, State v. Farris, which held that Miranda warnings were required in that situation, but in Farris the cop had taken Farris' keys and told him that his car was going to be searched. The other four cases pointed to Farris, said "that didn't happen here," and upheld the searches.
The thing is, Oles could be perfectly happy with that bright-line rule, because what happened to him was much different from what happened in those other four cases. According to the transcript of the officer's testimony at the hearing, as Oles was getting out of his car, the officer grabbed him by the arm and dragged him back to the police cruiser. I'm not sure if you can get more custodial than physically manhandling a suspect.
Unfortunately, that fact didn't make its way into any of the briefs, and was barely mentioned in oral argument. Still, the justices seemed inclined to look beyond the bright-line rule and into the facts. Totality of the circumstances is the go-to rule for Fourth and Fifth Amendment issues, and the circumstances of Oles' interrogation may be just enough to uphold the suppression of his statement.
Would that were the case in the other argument held yesterday, in State v. Polk. Polk was a student at a high school in Columbus, and one day a bus driver took a bookbag that had been left on the bus to the school's "safety and security" officer. The latter looked inside just enough to determine that it was Polk's, and having heard rumors that Polk was involved in gangs, took the bag to the principal, where the two emptied it.
A number of bullets tumbled out, which prompted the school officials, now with police in tow, located Polk and searched the bag he was carrying, and found a gun. The trial court granted a motion to suppress, and the 10th District affirmed, finding that while the safety officer's initial examination of the bookbag was reasonable, he crossed the line when he and the principal dumped the contents of the bag.
Polk's attorney tried to sell that, but the justices seemed disinclined to buy. The first problem was pointed out by Justice French: in this day and age, finding an unattended bag requires more attention than just determining the owner. Especially if the bag's found in a school that your kid is attending.
The second problem falls into the category, once bitten, twice shy. A few years back, the court decided State v. Clark. The short version is that the 8th District had thrown out statements a child made to a couple of teachers identifying the person who was abusing him. The 8th had decided that the teachers, by virtue of their mandatory duty to report child abuse, were "government agents," and so Crawford v. Washington barred the statements.
The Supreme Court took the case in, and after watching the oral argument you couldn't have found anyone to take a bet on Clark for less than 20 to 1 odds. For reasons not readily discernible, the court affirmed, by a 4-3 vote.
And lo and behold, the United States Supreme Court took in the case, and unanimously reversed, almost ridiculing the Ohio courts for having the inability to distinguish between school personnel, in that case teachers, and law enforcement agents.
Now, what's this got to do with Polk? What it's got to do with is two justices, including the Chief, specifically mentioning Clark. To them, it was a simple extrapolation: if a teacher wasn't a law enforcement agent, neither was a glorified hall monitor. And for a state supreme court justice, getting a 9-0 smackdown from the Potomac Nine is something that gets your attention, and that you work hard to prevent a recurrence.