In re J.G.

2023 Ohio 4042

Opinion

[Cite as In re J.G., 2023-Ohio-4042.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: J.G. : APPEAL NOS. C-220637 C-220638 : C-220639 TRIAL NOS. 22-710X : 22-709X 22-708X :

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: November 8, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting Attorney, for Appellant State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, Jessica Moss, Assistant Public Defender, and Elizabeth Marcelli, for Appellee J.G. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Presiding Judge.

{¶1} Appellant the state of Ohio appeals from the trial court’s entries

granting appellee J.G.’s motion to suppress. The trial court suppressed all of J.G.’s

statements made during an interview with Cincinnati police officers, as well as any

evidence relating to his DNA, after determining that J.G.’s waiver of his Miranda

rights was not voluntary, that his confession was both involuntary and coerced, and

that J.G. did not voluntarily consent to DNA testing. Although J.G. raised no challenge

in his suppression motion as to whether police officers had probable cause to stop him,

the trial court nonetheless considered this issue sua sponte and additionally

determined that while the officers had probable cause to stop J.G. and speak to him

about the crime, they “did not have sufficient ‘reasonable articulable suspicion’ to

conduct a Terry Stop” against him.

{¶2} In two assignments of error, the state argues that the trial court erred in

suppressing J.G.’s statements and DNA draw and that the trial court erred by granting

the motion to suppress on grounds not raised by J.G. or addressed by the parties.

Following our review of the record, we hold that the trial court did not err in

determining that J.G.’s Miranda waiver was not voluntary under the totality of the

circumstances and that J.G. did not voluntarily consent to the DNA draw. We need not

reach the merits of the state’s second assignment of error, as it is rendered moot by

our resolution of the first.

I. Factual and Procedural Background

{¶3} On March 8, 2022, Cincinnati police officers investigated a burglary

that occurred at 4727 Green Glen Lane. A rear door to the home was broken, multiple

windows were smashed out, and blood droplets were found in the home.

2 OHIO FIRST DISTRICT COURT OF APPEALS

{¶4} As the officers were investigating and sectioning off the perimeter of the

home, a group of four individuals, including J.G., walked past along the sidewalk.

Noticing visible blood on J.G.’s jeans and hands, Officer Thomas Mendenhall stopped

him for questioning. During the questioning, which occurred on the sidewalk

approximately two houses away from J.G.’s own home, Officer Mendenhall noticed a

large cut on J.G.’s wrist. J.G. stated that he cut his wrist after falling down the stairs at

his home earlier that day. J.G. later stated that he injured his wrist when he tripped

on the way home from school, clarifying that it was a separate injury to his pinky finger

that he had referred to in his previous statement about falling down the stairs. When

officers asked J.G. his name, he gave them a fake name.

{¶5} Approximately three minutes after he was first stopped, J.G. was

directed by one of the investigating officers to sit on the hood of a nearby police cruiser.

Four minutes later, Officer Mendenhall told J.G. that he was not under arrest, but that

he was going to be taken back to the police station for questioning. J.G. asked if he

could give his belongings to his friends, who had remained nearby on the sidewalk.

After being told no, J.G. responded, “I’m not doing that.” J.G. was asked to get down

off the hood of the car. When he did not immediately comply, the interaction between

J.G. and the officers quickly turned from relatively cordial to combative and

confrontational. An officer approached J.G. and put his hand on J.G.’s arms to move

him off of the cruiser. J.G. immediately told the officer not to touch him and attempted

to shake off the officer’s arm. Four officers then restrained J.G. against the police

cruiser to handcuff him. The decision to handcuff J.G. occurred approximately seven

minutes into his detainment and four minutes after he was directed to sit on the hood

of the cruiser. One officer held, but did not activate, a taser against J.G.’s back. J.G.

3 OHIO FIRST DISTRICT COURT OF APPEALS

was visibly agitated and emotional, asking the officers to take the taser off his back,

shouting, “F*** I’m not resisting,” and exclaiming that the handcuffs were hurting his

previously injured wrist. Body-camera video of the stop showed J.G.’s wrist bleeding

underneath the handcuffs. J.G. was searched, put into the back of a police cruiser, and

driven to a nearby police station for questioning.

{¶6} Once at the station, J.G. was placed in a small interrogation room and

made to sit in a chair in front of a table. He immediately requested to have the

handcuffs removed, and he became very angry when officers refused to remove them.1

He shouted at an officer and kicked a chair on the opposite side of the table partially

across the room. Approximately four minutes passed before Detective Alex Gettys

came in the room and asked to photograph J.G.’s injuries. J.G. was visibly in pain and

bleeding from his wrist, and he refused to stand when asked. Officer Mendenhall came

in to assist. He asked J.G. if he would like to stand up. J.G. said, “[N]o,” and Officer

Mendenhall responded, “You’re going to be standing up.” He told J.G. that it would be

a lot easier if he just stood up. J.G. then told Officer Mendenhall not to touch him.

Officer Mendenhall responded, “I’m going to have to touch you,” and he pulled J.G. up

out of the chair and pushed him against the wall as J.G. struggled to break free. Four

other officers eventually entered the room as J.G. continued to struggle, resulting in

J.G. kicking the chair he had been sitting in and knocking it over.

{¶7} Three officers restrained J.G. against the wall. They forcibly turned his

body to face the wall so that the photographer could take a picture of his injured,

handcuffed wrist, and J.G. was lifted partially off the ground in the process. Two

1 Both the state and J.G. submitted into evidence a video of J.G.’s interrogation and time in the

interrogation room. 4 OHIO FIRST DISTRICT COURT OF APPEALS

officers pressed the front of J.G.’s body against the wall, and another officer restrained

J.G. by holding him against the wall by his neck. J.G. repeatedly told the officer to get

off his neck. Cincinnati Police Officer Alexander McCoy2 attempted to reason with

J.G., stating, “The only thing we can do is react to what you are doing,” and advising,

“[C]onduct yourself like an adult, and we’re gonna treat you like an adult.” He told J.G.

that “the minute you act up, it’s gonna be very bad.” J.G. finally calmed down and the

officers made him sit back in the chair. There was blood from his wound smeared all

over the wall and the chair he was sitting in.

{¶8} J.G. told the officers that he suffered from post-traumatic stress

disorder (“PTSD”). He expressed his frustration with being touched by the officers,

stating that “I am sorry, you’re not gonna f***ing put your hands around my neck.”

Officer McCoy told J.G. that his mom was on her way, and that if she gave the officers

permission to treat J.G.’s injuries, J.G. would not have a choice in that matter. Officer

McCoy asked J.G. to “work with us so we can work with you.” J.G. then agreed to let

fire department personnel bandage his wrist.

{¶9} The situation deescalated during this period and remained calm

thereafter. J.G. was left alone in the room, sitting in the chair, with his wrists

handcuffed behind his back, for approximately seven minutes until the paramedics

with the Cincinnati Fire Department arrived. During this time, J.G. can be seen

grimacing in pain due to his wrist injury, which was still bleeding onto the chair. J.G.

was clearly uncomfortable, frustrated, and distressed.

2 Officer McCoy is referred to as both “officer” and “detective” throughout these proceedings. For

consistency, we refer to him as an officer. 5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶10} After J.G.’s wrist was bandaged, his handcuffs were removed from

behind his back, and one arm was handcuffed in front of him to a table loop. Detective

Gettys attempted to read J.G. a form that contained his Miranda rights while the

handcuffs were being switched, but stopped to wait until Officer McCoy finished

handcuffing J.G. to the table loop. Once J.G. was situated, Detective Gettys started

over and quickly read J.G. his Miranda rights. When asked if he understood those

rights, J.G. initially responded by nodding his head, but when asked again, he verbally

answered yes.

{¶11} J.G.’s mother entered the room as these rights were being read and sat

down next to him at the table. Officer McCoy and Detective Gettys began interviewing

J.G, who denied both having been in the house that was burglarized and breaking any

of its windows. He told the officers that he injured his wrist when he fell walking home

from school earlier that day and cut his wrist on glass. Approximately one and a half

minutes after the questioning began, J.G. was told by one of the officers that his

mother had a question for him. J.G’s mother instructed him not to lie and stated, “If

you do not tell me the truth on this and come clean if you did or did not do it, I am

giving them permission to do a DNA test on you and if it comes back that it’s your

blood that is anywhere there, you’re gonna be in a world of trouble not only with them

but with me.” Following his mother’s admonition, J.G. continued to deny breaking the

windows on the house, but admitted that his blood would be found inside the home.

He stated that, “as a curious kid,” he had entered the house and that blood dripped

from his injured wrist while he was inside.

{¶12} J.G.’s mother continued to press him on his explanation, stating,

“[D]on’t sit there and cry because you got your a** in a mess. You better come clean if

6 OHIO FIRST DISTRICT COURT OF APPEALS

you did it.” As J.G. continued to deny breaking into the house, his mother turned to

the officers and stated, “Go ahead and do the DNA.” She then told J.G., “So you better

come clean about it.” J.G. reiterated that his blood would be found in the house

because he had entered it with an open cut.

{¶13} Detective Gettys quickly read advisements from a DNA consent form to

J.G. Among other warnings, the form advised J.G. that he had the right to refuse to

consent to providing his DNA. After Detective Gettys and J.G.’s mother signed the

form, Detective Gettys passed it to J.G. and told him to sign it. J.G. did so, bleeding on

the form in the process.

{¶14} J.G.’s cheek was swabbed for his DNA. His mother then left the room

and the interview continued. J.G. admitted that his blood would be found on the deck,

in the kitchen, and in the living room of the burglarized home. One of the officers

questioned the credibility of this statement and pointed out that blood was also found

on a window frame, outside a window, and in a bedroom. After informing J.G. that he

was going to be charged for the burglary, the officers further questioned his version of

events. J.G. was asked if there was any reason why his DNA would be on the item used

to break out the window on the home, why there would be video footage of him

removing a Ring camera from the home, or why his blood would be found on the Ring

camera. As the interview progressed, J.G. made further incriminating statements,

including admitting that he had broken two of the windows on the home.

{¶15} J.G.’s mother eventually reentered the interrogation room, and Officer

McCoy encouraged J.G. to explain to his mother what he was feeling. For

approximately 15 minutes J.G. and his mother spoke while Officer McCoy

predominately observed. J.G. made an inaudible comment at one point about his

7 OHIO FIRST DISTRICT COURT OF APPEALS

motivation for breaking the windows on the home, to which his mother responded, “I

knew that’s why. There was more to that than (inaudible).” Officer McCoy then stated,

“That’s why I wanted you to come in.” After the interview concluded, J.G. was taken

to the hospital for medical care and then detained.

{¶16} Complaints were filed against J.G. alleging that he was a delinquent

child for committing acts that, if committed by an adult, would have constituted the

offenses of burglary, criminal damaging, and falsification.

{¶17} J.G. filed a motion to suppress all statements made during his interview,

arguing that both the waiver of his Miranda rights and his confession were not

voluntary under the totality of the circumstances. He also sought to suppress any DNA

evidence, arguing that the DNA was taken without a search warrant and that his

consent was not voluntary. A juvenile court magistrate conducted a hearing on the

motion to suppress. At the start of the hearing, counsel for J.G. clarified that he was

not challenging whether there was probable cause for his arrest.

{¶18} Officer Mendenhall testified at the hearing, stating that he stopped J.G.

for questioning after J.G. walked past the crime scene with blood on his jeans and

hands. The video from Officer Mendenhall’s body-worn camera was admitted into

evidence and portions of it were played for the magistrate. It depicted the officers’

entire interaction with J.G. from the moment of his stop until he was placed in the

cruiser in handcuffs. Officer Mendenhall was questioned about the use of force on J.G.

by the responding officers. He stated that the standard protocol for use of force was

followed in this situation and explained that officers are trained to handcuff

uncooperative suspects for transport. And he stated that a “use of force” report was

not filled out following this encounter with J.G. because “it was not a use of force.”

8 OHIO FIRST DISTRICT COURT OF APPEALS

Officer Mendenhall explained why multiple officers were involved in handcuffing J.G.,

stating that “We were trying to get control over him and tried to get the handcuffs on

him. And to try and minimize the amount of force that is given to him during that, we

used three officers using a lighter force rather than one officer using, exerting more

force.” He additionally explained that the taser was used to try and get J.G. to comply

with the officers’ commands.

{¶19} Officer Mendenhall was also questioned about his use of force on J.G.

in the interrogation room. He explained, “I placed my hand under his arm to help raise

him out of the chair. And then he continued to resist and fly back in the seat, so I put

my hand on his shoulder to stabilize him.” After being shown a picture of him with his

hand on J.G.’s shoulder, Officer Mendenhall agreed that J.G.’s foot was not on the

ground in the photograph.

{¶20} Detective Gettys testified that he took photographs of J.G.’s injuries and

read J.G. his Miranda rights. He also read J.G. the DNA consent form and obtained

J.G.’s signature on that form. Detectives Gettys stated that J.G.’s mother was present

when both forms were read. He testified that he had spoken with J.G.’s mother prior

to entering the interrogation room about certain aspects of the case, including DNA

and obtaining her consent to get DNA from J.G. He acknowledged that he gave J.G.’s

mother the opportunity to ask J.G. questions during the interview, but testified that

neither he nor Officer McCoy told her to do so. Rather, prior to entering the

interrogation room, J.G.’s mother stated that she wanted to ask J.G. if he had

committed these acts because she would know if he was lying. Detective Gettys

testified about the information he knew about J.G. prior to interviewing him, including

9 OHIO FIRST DISTRICT COURT OF APPEALS

the facts that J.G. was 15 years old, had a tenth-grade education, suffered from PTSD,

was upset and bleeding from the wrist, and had no prior delinquency adjudications.

{¶21} Officer McCoy was the last witness to testify at the suppression hearing.

He stated that when first stopped by the officers on the street, J.G. was initially

“verbally noncompliant” and provided false information regarding his name. He later

became “physically noncompliant” as well. When discussing the use of force on J.G.,

Officer McCoy testified that an “escort hold,” which occurs “when you grab ahold of an

arm or appendage to try and control the person,” was used. He further stated that the

taser, which was not turned on, was used as a de-escalation technique. Officer McCoy

acknowledged that he was at the burglary crime scene when J.G. was arrested, that he

was not present for the arrest, and that his testimony was based on his observation of

the video from the body-worn camera and from speaking with other officers.

{¶22} Officer McCoy was asked about his warning to J.G. that if he acted up,

“it’s gonna be very bad.” He stated that the purpose of this comment was to let J.G.

know his options, which he described as “comply or there would be pain compliance

that went along with that.” Like Detective Gettys, Officer McCoy stated that he never

told J.G.’s mother that she needed to ask questions during the interview, nor did he

tell her that she needed to agree to sign the DNA consent form. Officer McCoy

acknowledged that J.G.’s physical conduct initially showed that he was not willing to

speak with the officers. However, Officer McCoy felt that he was able to calm down

J.G. and have a conversation with him.

{¶23} The magistrate denied J.G.’s motion to suppress. J.G. filed objections to

the magistrate’s decision. He contended that the magistrate failed to properly

determine the factual issues and appropriately apply the law, arguing that the waiver

10 OHIO FIRST DISTRICT COURT OF APPEALS

of Miranda rights was not voluntary, his confession was not voluntary, and his consent

to the warrantless DNA draw was not voluntary.

{¶24} The trial court found J.G.’s objections to be well-taken, and it set aside

the magistrate’s decision and granted J.G.’s motion to suppress. The court found that

under the totality of the circumstances, both J.G.’s waiver of his Miranda rights and

his confession were involuntary. It further found that J.G.’s consent to DNA testing

was not voluntary. And despite the issue not being raised by either party, the court

found that the officers “did not have sufficient ‘reasonable articulable suspicion’ to

conduct a Terry Stop” on J.G.

{¶25} The state has appealed from the trial court’s entry granting the motion

to suppress.

II. Motion to Suppress

{¶26} In its first assignment of error, the state argues that the trial court erred

as a matter of law by suppressing J.G.’s statements and DNA draw.

Standard of Review

{¶27} Our review of a trial court’s ruling on a motion to suppress “presents a

mixed question of law and fact.” State v. Wright, 1st Dist. Hamilton No. C-210486,

2022-Ohio-2161, ¶ 11; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797

N.E.2d 71, ¶ 8. We must accept the trial court’s findings of fact as true if competent,

credible evidence supports them. Wright at ¶ 11; Burnside at ¶ 8. But we then must

“independently determine[], without deference to the trial court’s conclusion, whether

the facts satisfy the legal standard.” Wright at ¶ 11; Burnside at ¶ 8.

11 OHIO FIRST DISTRICT COURT OF APPEALS

Miranda Waiver

{¶28} The state first argues that J.G.’s waiver of his Miranda rights was

voluntary, knowing, and intelligent, and that the trial court erred in determining

otherwise.

{¶29} Both the Fifth Amendment to the United States Constitution and Article

1, Section 10 of the Ohio Constitution provide that no person shall be compelled to be

a witness against himself or herself in a criminal case. State v. Arnold, 147 Ohio St.3d

138, 2016-Ohio-1595, 62 N.E.3d 153, ¶ 30. This “constitutional privilege against self-

incrimination is applicable in the case of juveniles as it is with respect to adults.” In re

M.H., 163 Ohio St.3d 93, 2020-Ohio-5485, 168 N.E.3d 439, ¶ 17, quoting In re Gault,

387 U.S. 1, 55, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). “[A] set of prophylactic

measures”—Miranda warnings—have been adopted to protect this constitutional

privilege. Id. at ¶ 18, quoting J.D.B. v. North Carolina, 564 U.S. 261, 269, 131 S.Ct.

2394, 180 L.Ed.2d 310 (2011). The United States Supreme Court held in Miranda v.

Arizona that 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.” Miranda v. Arizona, 384

U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). These warnings are only required

when a suspect is subject to a custodial interrogation. In re M.H. at ¶ 19. It is not

disputed that J.G. was subject to a custodial interrogation in this case or that Miranda

warnings were required.

{¶30} After the required warnings have been provided, a suspect may elect to

waive his rights and speak with law enforcement or make a statement. State v. Wesson,

137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 34. An express waiver of the

12 OHIO FIRST DISTRICT COURT OF APPEALS

rights, either orally or in writing, is not required. State v. Lather, 110 Ohio St.3d 270,

2006-Ohio-4477, 853 N.E.2d 279, ¶ 11; State v. Jackson, 1st Dist. Hamilton No. C-

210466, 2022-Ohio-2562, ¶ 36. A waiver may be inferred “from the suspect’s behavior,

viewed in light of all the surrounding circumstances.” Lather at ¶ 11, quoting State v.

Murphy, 91 Ohio St.3d 516, 518, 747 N.E.2d 765 (2001). “One such circumstance in

which a waiver can be inferred is where a defendant proceeds to speak after having

been advised of her or his rights and indicating an understanding of them.” Jackson

at ¶ 36, citing State v. Williams, 2d Dist. Montgomery No. 28648, 2021-Ohio-1340, ¶

55. However, a waiver will not be presumed based merely on a suspect’s response to

an interrogation. State v. Durgan, 1st Dist. Hamilton No. C-170148, 2018-Ohio-2310,

¶ 22, citing State v. Edwards, 49 Ohio St.2d 31, 38-39, 358 N.E.2d 1051 (1976),

vacated as to death penalty, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

{¶31} A waiver “must have been voluntary in the sense that it was the product

of a free and deliberate choice rather than intimidation, coercion, or deception,” and

it “must have been made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.” Moran v. Burbine,

475 U.S. 412, 421, 106 S.Ct.1135, 89 L.Ed.2d 410 (1986). The state bears the burden of

proving by a preponderance of the evidence that the accused’s waiver of his Miranda

rights was knowing, intelligent, and voluntary. Wesson at ¶ 34; Jackson at ¶ 33. The

totality of the circumstances is examined to determine whether a waiver met these

requirements. State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, ¶

24; Jackson at ¶ 32.

{¶32} Typically, considerations under the totality-of-the-circumstances test

include “the age, mentality, and prior criminal experience of the accused; the length,

13 OHIO FIRST DISTRICT COURT OF APPEALS

intensity, and frequency of interrogation; the existence of physical deprivation or

mistreatment; and the existence of threat or inducement.” Wesson at ¶ 35, quoting

Edwards at paragraph two of the syllabus. But “[w]hen the suspect is a juvenile, the

totality of the circumstances includes ‘the juvenile’s age, experience, education,

background, and intelligence’ as well as his ‘capacity to understand the warnings given

him, the nature of his Fifth Amendment rights, and the consequences of waiving those

rights.’ ” Barker at ¶ 24, quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560,

61 L.Ed.2d 197 (1979). A parent’s involvement and advice are also relevant. Id. at ¶ 24.

An analysis of the totality of the circumstances “takes on even greater importance

when applied to a juvenile.” Id. at ¶ 39. A “court[] should take ‘special care’ in

scrutinizing a purported confession or waiver by a child.” In re C.S., 115 Ohio St.3d

267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 106, quoting In re Manuel R., 207 Conn. 725,

737-738, 543 A.2d 719 (1988), citing Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302,

92 L.Ed. 224 (1948).

{¶33} Both the Ohio Supreme Court and this court have recognized that “a

waiver is not involuntary unless there is evidence of police coercion, such as physical

abuse, threats, or deprivation of food, medical treatment, or sleep.” Wesson, 137 Ohio

St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, at ¶ 35; see Jackson, 1st Dist. Hamilton

No. C-210466, 2022-Ohio-2562, at ¶ 33 (“Absent evidence that an accused’s will was

overborne or his capacity for self-determination was critically impaired because of

coercive police conduct, a waiver of Miranda rights will be considered voluntary.”).

{¶34} In this case, J.G. acknowledged that he was read and he understood his

Miranda rights, first by nodding his head and then by verbally stating that he

understood them. J.G. did not expressly waive his Miranda rights because the form

14 OHIO FIRST DISTRICT COURT OF APPEALS

read to him merely set forth each Miranda right. The form did not state anything about

a waiver of those rights. In addition, J.G. was never asked whether he waived his

Miranda rights, but only whether he understood his rights. He made no express

waiver of those rights, either orally or in writing. Thus, we must examine whether we

can infer that J.G. waived his Miranda rights.

{¶35} J.G. proceeded to speak with Detective Gettys and Officer McCoy, in his

mother’s presence, after acknowledging that he understood his rights and without

requesting an attorney. Under these circumstances, a waiver of J.G.’s Miranda rights

may be inferred from his behavior. See Lather, 110 Ohio St.3d 270, 2006-Ohio-4477,

853 N.E.2d 279, at ¶ 11. But we also must determine whether, under the totality of the

circumstances, the state proved by a preponderance of the evidence that J.G.’s waiver

was voluntary.

{¶36} The trial court’s entry discusses in detail the force used by the officers

against J.G. Those findings were indisputably supported by the record, i.e., the video

evidence of both the arrest and the interrogation. However, the trial court failed to

mention that it was J.G.’s combative behavior that prompted the officers’ actions. In

fact, the trial court made no findings as to J.G.’s behavior, when the video of the

interview admitted into evidence clearly established that J.G. shouted at the officers,

kicked a chair on two occasions, and struggled with the officers. We take these facts

into consideration when applying the facts to the relevant law.

{¶37} J.G. was 15 years old, “a tender and difficult age for a boy,” and he

“cannot be judged by the more exacting standards of maturity.” Haley, 332 U.S. at

599, 68 S.Ct. 302, 92 L.Ed. 224. It is well-recognized that a juvenile like J.G. “is unable

to know how to protect his own interests or how to get the benefits of his constitutional

15 OHIO FIRST DISTRICT COURT OF APPEALS

rights.” Gallegos v. Colorado, 370 U.S. 49, 54, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962);

see Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365, at ¶ 39. His age alone

“does not render his waiver involuntary,” State v. Tibbs, 1st Dist. Hamilton No. C-

100378, 2011-Ohio-6716, ¶ 18, but it plays an important role in our analysis of the

totality of the circumstances. J.G. had a tenth-grade education. He had no prior

adjudications and no experience with the criminal justice system. He suffered from

PTSD and informed the officers of that diagnosis.

{¶38} Significant force was used on J.G. when he was taken into custody. This

force occurred after J.G. was told that he was not being arrested, but was being taken

to the police station for questioning. When J.G. failed to immediately comply, he was

swarmed by multiple officers. One held a taser to his back, while three others held him

so that his wrists could be handcuffed behind his back, causing his previously incurred

cut to bleed.

{¶39} After being placed in an interrogation room at the station, J.G. was

emotionally distraught and requested—unsuccessfully—that his handcuffs be

removed. His wrist was still bleeding. J.G. refused to stand for a photograph to be

taken of his injury, and he told the officers not to touch him. He shouted at the officers

and kicked a chair. Initially, one officer approached J.G., lifted him out of a chair, and

held him against the wall. J.G. continued to struggle, and he was again subdued by

multiple officers. The force used to restrain J.G. against the wall was so severe that his

foot was lifted off of the ground. One officer restrained J.G. by the neck, while J.G.

shouted for the officer to remove his hands. At one point, the small room contained

J.G. and six officers, three of which were restraining him. J.G.’s blood was smeared on

a chair and on the wall.

16 OHIO FIRST DISTRICT COURT OF APPEALS

{¶40} Once J.G. was subdued, Officer McCoy told him that if he acted up

again, it was going to “be very bad.” As explained by Officer McCoy, this statement

meant “comply or there would be pain compliance that went along with that.” Officer

McCoy was the same officer that participated in the interview of J.G.

{¶41} J.G.’s Miranda rights were read to him while he was handcuffed to a

table, approximately 15 minutes after the officers used force against him. The Miranda

rights were not thoroughly and carefully administered to J.G. Rather, they were hastily

read by Detective Gettys. The entire recitation took approximately 20 seconds, and the

detective did not pause between each right to ensure that J.G. understood the right

that had been read. While J.G. was asked if he understood his rights, he was never

asked if he wished to waive those rights before speaking with the officers. J.G.’s mother

was in the room while the rights were read, but she was not involved in the recitation

or in ensuring whether J.G. understood them or wished to waive them.

{¶42} J.G. did not immediately admit any wrongdoing when speaking with the

officers. Less than two minutes into the interview, upon prompting from an officer,

J.G.’s mother questioned him. She threatened J.G., stating that if he did not tell the

truth she would give the officers permission to do a DNA test. The officers did not

correct mother’s misstatement and inform J.G. that his own consent was also

necessary before a sample of his DNA could be taken. Immediately after mother’s

threat, J.G. admitted to having been in the house that was burglarized. Shortly

thereafter, J.G.’s mother turned to the officers and told them to do the DNA test. After

the DNA consent form was read to J.G. and signed by his mother and an officer, the

officer passed it to J.G. and told him to sign it. J.G. was not asked if he wished to

17 OHIO FIRST DISTRICT COURT OF APPEALS

consent to the DNA test or told that he did not have to sign the form. Rather, he was

instructed to sign it. After his cheek was swabbed, J.G. made a full confession.

{¶43} While J.G.’s mother was not a state actor, she played a significant role

in impacting J.G.’s state of mind and her behavior is relevant to our analysis. “[A]

parent’s participation may militate for or against a finding of voluntariness depending

on the circumstances.” State ex rel. M.P., 476 N.J.Super. 242, 267, 299 A.3d 133

(2023) (“The actual role played by a parent during a stationhouse interrogation—

whether as a ‘buffer’ or instead as an adjunct law enforcement interrogator—is a fact-

sensitive question to be determined on a case-by-case basis.”). J.G.’s mother was

undoubtedly a concerned parent who cared about her child. But it was also clear that

she was not there to advise or help J.G. understand his rights, but rather to encourage

him to be truthful and cooperate with the police. Her coercive behavior militates

against a finding of voluntariness.

{¶44} The officers’ coercion of an injured, agitated 15-year-old J.G., who had

no prior experience with the criminal justice system, clearly had an impact on his state

of mind. The record does not demonstrate, nor do we find, that the officers used force

in order to get J.G. to confess. Rather, they resorted to force in the first instance

because J.G. would not voluntarily go to the police station with them for questioning.

They used force in the interrogation room because J.G. would not comply with their

demands to stand for a photo of his injured wrist. Although the officers’ actions were

not undertaken in order to force a confession, they were nonetheless coercive. See

Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, at ¶ 35 (police coercion

includes physical abuse and threats). Detective McCoy threatened J.G. that if he acted

up again, it would be very bad for him. J.G. had already been forcibly handcuffed by

18 OHIO FIRST DISTRICT COURT OF APPEALS

multiple officers, resulting in the reopening of his wound, and then he was shoved into

the wall and forced to stand against his will by multiple officers. On top of that, he

faced the threat of more force being used against him if he failed to comply with the

police.

{¶45} We do not make any findings in this opinion that the officers’ use of

force was excessive or even unjustified. J.G.’s behavior during his interaction with the

officers was less than ideal and clearly precipitated the officers’ actions. But the

circumstances under which J.G. was taken into custody and the amount of force

employed against him both at that time and then again in the interrogation room are

relevant to determining J.G.’s state of mind and the voluntariness of his Miranda

waiver. The record contains evidence that J.G.’s will was overborne by the coercive

police conduct, specifically the officers’ use of force and threats of future harm. See

Jackson, 1st Dist. Hamilton No. C-210466, 2022-Ohio-2562, at ¶ 33 (holding that

“evidence that an accused’s will was overborne or his capacity for self-determination

was critically impaired because of coercive police conduct” is required in order to find

a Miranda waiver involuntary).

{¶46} The dissent expresses concern that an accused should not be allowed to

reap the benefit of engaging in behavior that precipitates an officer’s use of force. The

dissent contends that the use of force in this case does not satisfy the initial threshold

of coercive police conduct. However, we do not hold that police engage in coercive

conduct every time they use force in response to a suspect’s actions. Rather, there are

several factors that made the officers’ use of force so coercive in this particular case.

First, the officers told J.G. that he was not being placed under arrest, but that they

wanted him to voluntarily come with them to the police station for questioning,

19 OHIO FIRST DISTRICT COURT OF APPEALS

implying that J.G. had a choice in the matter. When J.G. said no, multiple officers

immediately grabbed him, forced him against the cruiser, held a taser to his back,

threatened to use it, handcuffed his wrists behind his back, and forced him into the

cruiser. These facts are extremely relevant to our determination that the force

employed amounted to police coercion. Second, although J.G. may have precipitated

the force used in the interrogation room, the fact that the officers used significant force

against J.G. for a second time when he failed to comply with their demands is also

relevant to our determination that the force amounted to police coercion. Finally, and

most importantly, the dissent completely fails to mention or consider the impact on

J.G.’s will and whether his will was overborne when, after being roughed up twice

when he failed to comply with their demands, one of the officers threatened future

force against him should he continue to fail to comply. Under these specific

circumstances, we find that the officers’ use of force was coercive.

{¶47} We cannot find that J.G.’s waiver was the product of a free and

deliberate choice rather than intimidation and coercion. See Moran, 475 U.S at 421,

106 S.Ct. 1135, 89 L.Ed.2d 410. The previous use of force by the officers, the threat of

the use of future force, the questioning of J.G. by the same officer that used force

against him, and the coercive behavior by J.G.’s mother, coupled with J.G’s age,

current emotional state, and lack of experience with the criminal justice system,

resulted in the waiver of his Miranda rights being involuntary under the totality of the

circumstances. We accordingly hold that the trial court did not err in so concluding

and in suppressing his statements made during the interview.

{¶48} While the same totality-of-the-circumstances analysis is applicable to

determine whether J.G.’s confession was voluntary, we need not undertake that

20 OHIO FIRST DISTRICT COURT OF APPEALS

analysis because the confession was properly suppressed based on the finding that

J.G.’s Miranda waiver was not voluntary. Jackson, 1st Dist. Hamilton No. C-210466,

2022-Ohio-2562, at ¶ 32 (“Both of [appellant’s] arguments—that his Miranda waiver

was not knowing, voluntary, and intelligent, and that his confession was not

voluntary—are analyzed under a totality-of-the-circumstances test.”).

DNA Draw

{¶49} The state next argues that the trial court erred in finding that J.G.’s

consent to the DNA draw was not voluntary.

{¶50} Both “[t]he Fourth Amendment to the United States Constitution and

Article I, Section 14, of the Ohio Constitution prohibit unreasonable searches and

seizures.” Wright, 1st Dist. Hamilton No. C-210486, 2022-Ohio-2161, at ¶ 12, citing

State v. Ward, 2017-Ohio-8141, 98 N.E.3d 1257, ¶ 13 (1st Dist.). “[U]sing a buccal swab

on the inner tissues of a person’s cheek in order to obtain DNA samples is a search.”

State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 100, quoting

Maryland v. King, 569 U.S. 435, 446, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013).

{¶51} Here, the state obtained J.G.’s DNA swab without a warrant. As such,

the search was per se unreasonable unless an exception to the warrant requirement

applied. Wright at ¶ 12. Consent of the person to be searched is one such exception.

See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854

(1973); State v. Hayden, 1st Dist. Hamilton No. C-210352, 2022-Ohio-3933, ¶ 17. To

be valid, consent must have been given voluntarily and not have been the result of

duress or coercion. Schneckloth at 248. Whether a consent to search was voluntary is

a question of fact to be determined based on the totality of the circumstances. Id. at

227; State v. Smith, 1st Dist. Hamilton No. C-200352, 2021-Ohio-2654, ¶ 32. The state

21 OHIO FIRST DISTRICT COURT OF APPEALS

bears the burden of proving by clear and convincing evidence that the consent was

voluntary. Smith at ¶ 32.

{¶52} Our previous analysis of the totality of the circumstances is relevant to

determining whether J.G. freely and voluntarily consented to providing a DNA

sample. J.G. was an emotional, injured 15-year-old who suffered from PTSD and had

just experienced the use of force against him by police officers twice in a short period.

He had further been threatened with the use of future force for noncompliance. J.G.’s

mother then threatened him by stating that she was going to give the police permission

to do a DNA test to determine if it was his blood in the burglarized house. The officers

did not clarify his mother’s statement and explain that his own consent was also

necessary before a DNA sample could be taken. A few minutes later, seemingly

unsatisfied with J.G.’s explanation, his mother instructed the officers to do the DNA

test. J.G. had been in the interrogation room for approximately 27 minutes, and

questioned by the offices for five minutes, at this point.

{¶53} After the DNA consent form was hastily read to J.G. and signed by his

mother and Detective Gettys, it was passed to J.G. and he was told to sign it. J.G. was

not asked if he had any questions about the form or asked if he wanted to consent to

providing a DNA sample. Although the language of the form stated that he had the

right to decline to consent, the collective behavior of his mother and Detective Gettys

gave J.G. the impression that he had no choice other than to sign the form. Under

these circumstances, the record does not contain clear and convincing evidence that

J.G.’s consent to the search was voluntary. See Smith at ¶ 32.

{¶54} We accordingly hold that the trial court did not err in suppressing all

evidence related to the DNA draw. The first assignment of error is overruled.

22 OHIO FIRST DISTRICT COURT OF APPEALS

III. Additional Grounds for Suppression

{¶55} The state argues in its second assignment of error that the trial court

erred as a matter of law by granting the motion to suppress on grounds not raised by

J.G. or addressed by the parties. The state specifically challenges the trial court’s

findings and conclusions concerning whether there was probable cause and/or

reasonable suspicion to both initially stop J.G. and to then conduct a Terry stop.

{¶56} In our resolution of the first assignment of error, we upheld the trial

court’s suppression of J.G.’s statements and all DNA-related evidence. The trial court

did not suppress any additional evidence based on its findings related to the stop. We

accordingly hold that this assignment of error has been rendered moot by our

resolution of the first assignment of error.

IV. Conclusion

{¶57} The trial court did not err in suppressing J.G.’s statements and all DNA

evidence based on its findings that J.G.’s waiver of his Miranda rights was not

voluntary under the totality of the circumstances and that he did not voluntarily

consent to the warrantless search of his person. The judgments of the trial court are

accordingly affirmed.

Judgments affirmed.

BOCK, J., concurs. WINKLER, J., concurs in part and dissents in part.

WINKLER, J., concurring in part and dissenting in part.

{¶58} I respectfully dissent in part and concur in part. I disagree with the

majority that J.G.’s Miranda wavier was involuntary but I agree with the majority that

23 OHIO FIRST DISTRICT COURT OF APPEALS

J.G.’s consent to the DNA draw was involuntary given the circumstances of the

purported waiver.

{¶59} I agree with the majority that J.G. implicitly waived his Miranda rights

when his rights were read to him from a form setting forth each Miranda right, J.G.

was asked twice if he understood those rights and J.G. first nodded then replied,

“[Y]eah,” and J.G. proceeded to speak with Detective Gettys and Officer McCoy.

Jackson, 1st Dist. Hamilton No. C-210466, 2022-Ohio-2562, at ¶ 36 (holding a

“circumstance in which a waiver can be inferred is where a defendant proceeds to

speak after having been advised of her or his rights and indicating an understanding

of them.”), citing State v. Williams, 2d Dist. Montgomery No. 28648, 2021-Ohio-1340.

We must treat this assent as “strong proof” of the validity of the waiver. State v. Moore,

81 Ohio St.3d 22, 32, 689 N.E.2d 1 (1998); State v. Washington, 1st Dist. Hamilton

No. C-130213, 2014-Ohio-4178, ¶ 33.

{¶60} My disagreement with the majority’s analysis concerns the narrow issue

concluding the use of force was not intended to get J.G. to confess, while

acknowledging J.G.’s behavior clearly precipitated the officers’ actions but

nevertheless determining the police’s use of force was coercive conduct. It creates a

troubling opportunity for an accused to be the architect of the basis for facts

supporting the suppression of his own statements by resisting the police until the

officers are required to use force against him and then reaping the benefits of

precipitating the use of force.

{¶61} The Ohio Supreme Court and this court both recognize that evidence of

police coercion is a necessary predicate to finding a Miranda waiver involuntary. See

Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, at ¶ 35; accord Jackson

24 OHIO FIRST DISTRICT COURT OF APPEALS

at ¶ 33 (holding a Miranda wavier will be considered voluntary without “evidence that

an accused’s * * * capacity for self-determination was critically impaired because of

coercive police conduct”). In my view, the majority skips this determination and

impliedly concludes that because the police’s use of force is properly relevant to

determining J.G.’s state of mind and the voluntariness of his Miranda waiver, that the

police use of force necessarily was coercive police conduct.

{¶62} The record does not demonstrate that the officers used force in order to

compel J.G. to confess. At every juncture, the police use of force was clearly

precipitated by J.G.’s behavior. Nor was the force employed punitive in nature. The

police initially used force to take J.G. into custody after J.G.’s demeanor turned from

relatively cordial to combative when J.G. attempted to shake off an officer’s arm when

officers attempted to place handcuffs on him. Later, while J.G. was in custody and in

the interview room, he refused to stand to allow officers to photograph his wrist. Police

had to once again resort to force by standing J.G. up and maneuvering him so that an

officer could take photographs of J.G.’s injured wrist. During this event, J.G. resisted

the officers, struggled to break free, and kicked over a chair. It is not coercive police

conduct to request one to stand and be photographed and then resort to the

appropriate use of force to restrain a person who is noncompliant and attempting to

break free.

{¶63} While certainly the police’s use of force is a consideration in reviewing

the totality of the circumstances and, as a practical matter, the use of force generally

is not indicative of a voluntary Miranda waiver in this analysis, but the use of force

here does not satisfy the initial threshold of coercive police conduct. As Wesson

describes by example, coercive police conduct includes the intensity of interrogation,

25 OHIO FIRST DISTRICT COURT OF APPEALS

“physical deprivation or mistreatment,” “threats,” or “physical abuse.” See Wesson at

¶ 35. Such phrases imagine force that is unnecessary, excessive, unjustified, punitive,

or intentionally coercive. It does not imagine the necessary and appropriate force

inherent in arresting a person that refuses to be arrested. Nor does it contemplate the

use of force merely to maneuver a noncompliant person to be photographed who

refuses and resists attempts to do so. To ignore J.G.’s behavior that clearly precipitated

each use of force and treat it as inherently coercive allows J.G. to create the arguments

in favor of suppression of his statements by precipitating a forcible response and then

arguing that the police coerced him.

{¶64} Accordingly, based on the record before us, I conclude the use of force

was not coercive and would hold J.G.’s Miranda waiver was voluntary and that the

trial court erred in suppressing J.G.’s statements. Because I concur that J.G.’s separate

consent to provide a DNA sample was involuntary, I would hold that the trial court did

not err in suppressing the evidence related to the DNA draw.

{¶65} I respectfully concur in part and dissent in part.

Please note:

The court has recorded its entry on the date of the release of this opinion.