State v. Roberts

513 N.E.2d 720, 32 Ohio St. 3d 225, 1987 Ohio LEXIS 373

• Court: Ohio Supreme Court
• Decided: September 2, 1987
• Docket: No. 86-779
• Status: Published

Opinions

Herbert R. Brown, J.

In Miranda v. Arizona (1966), 384 U.S. 436, 478, 479, the United States Supreme Court held:

“* * * [T]hat when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

The Miranda holding was premised upon the proposition that “* * * the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. The court reasoned that “* * * [u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id. at 458. Thus, a statement obtained during a custodial interrogation,¹ in the absence of the requisite warnings, is considered a product of coercive influences and “compelled” within the meaning of the Fifth Amendment to the United States Constitution.² Id. at 460-462.

In the case sub judice, Roberts was in custody at the time he made incriminating statements to his probation officer. See State v. Buchholz (1984), 11 Ohio St. 3d 24, 26, 11 OBR 56, 58, 462 N.E. 2d 1222, 1225; Berke-mer v. McCarty (1984), 468 U.S. 420; Oregon v. Mathiason (1977), 429 U.S. 492. Hence, the primary issue is whether statements made by an in-custody probationer to his probation-officer, without prior Miranda warnings, are admissible in a subsequent criminal proceeding. This is a question of first impression in Ohio.

I

The United States Supreme Court has not addressed the precise issue; however, in Minnesota v. Murphy (1984), 465 U.S. 420, the court held that a statement obtained by a probation officer in a noncustodial setting could be introduced against a probationer in a subsequent criminal prosecution.³ The court found that the coercion inherent in custodial interrogation is not present in a prearranged, routine probation interview. The court stressed the custody requirement of Miranda:

“We emphasize that Murphy was not under arrest and that he was free to leave at the end of the meeting. A different question would be presented if he had been interviewed by his probation officer while being held in police custody or by the police themselves in a custodial setting.” (Emphasis added.) Id. at 429, fn. 5.

The decisions in other jurisdictions are in conflict. Most of these cases turn on whether a probation officer is a “law enforcement officer” under Miranda.⁴

In People v. Ronald W. (1969), 24 N.Y. 2d 732, 302 N.Y. Supp. 2d 260, 249 N.E. 2d 882, the court determined that although “* * * a probation officer is a ‘peace officer’ * * * he is not a ‘law enforcement’ officer within the spirit or meaning of Miranda v. Arizona, supra. ” Id. at 735, 302 N.Y. Supp. 2d at 262, 249 N.E. 2d at 884. The court reasoned: “* * * The clearly-stated objectives of education and rehabilitation which are always paramount in the relationship between the probation officer and the probationer [citations omitted] are totally foreign to the elements the Supreme Court addressed itself to in Miranda.” Id. at 734-735, 302 N.Y. Supp. 2d at 262, 249 N.E. 2d at 883. Accord State v. Johnson (1972), 87 S.D. 43, 202 N.W. 2d 132; State v. Jackson (1972), 16 Ariz. App. 476, 494 P. 2d 376.⁵ See, also, Nettles v. State (Fla. App. 1971), 248 So. 2d 259.

In contrast, the United States District Court for the Western District of Pennsylvania has held that Miranda warnings must be given by a parole or probation officer, to a defendant in custody, in order to admit the statements made by the defendant. United States v. Steele (W.D. Pa. 1976), 419 F. Supp. 1385, 1386-1387. In Steele, the defendant was placed in the custody of his probation officer, after a preliminary hearing on a gun charge, pursuant to a forty-eight hour detainer placed against him for probation violation. During the process of transporting defendant to the county jail, the probation officer questioned him about the circumstances of his arrest without informing him of his Miranda rights.

In State v. Magby (1976), 113 Ariz. 345, 554 P. 2d 1272, the defendant-probationer was arrested as a suspect in connection with a fatal shooting incident. Two days after his incarceration, defendant’s probation officer visited him in jail and, without prior Miranda warnings, questioned him about the shooting. The Supreme Court of Arizona held that in-custody statements regarding a new offense, elicited without Miranda, warnings by a probation officer, should not be admissible.⁶ Id. at 349, 554 P. 2d at 1276. The court stressed the psychological pressure inherent in an in-custody interview between a probation officer and the probationer. Id. Accord Marrs v. State (1982), 53 Md. App. 230, 452 A. 2d 992. See, also, State v. Lekas (1968), 201 Kan. 579, 442 P. 2d 11.⁷

II

This court addressed the admissibility of statements obtained by a parole officer without first advising the in-custody parolee of his constitutional rights in State v. Gallagher (1974), 38 Ohio St. 2d 291, 67 O.O. 2d 354, 313 N.E. 2d 396, vacated (1976), 425 U.S. 257, on remand (1976), 46 Ohio St. 2d 225, 75 O.O 2d 280, 348 N.E. 2d 336. In Gallagher, we followed United States v. Deaton (C.A. 5, 1972), 468 F. 2d 541, 544, certiorari denied (1973), 410 U.S. 934. We held:

“Testimony as to utterances made by an accused to his parole officer is inadmissible at trial where the utterances were in response to questions by the parole officer, and, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent, of his right to be provided with counsel prior to questioning, and warn him that any utterance may be used as evidence against him.” Gallagher, supra (38 Ohio St. 2d), at syllabus.

This court has also recognized “* * * that a probationer, like the parolee in Gallagher, must be afforded the right to assert his or her constitutional privileges.” State v. Burkholder (1984), 12 Ohio St. 3d 205, 207, 12 OBR 269, 271, 466 N.E. 2d 176, 179, certiorari denied (1984), 469 U.S. 1062. (Holding in the syllabus that “evidence obtained through an unreasonable or unlawful search and seizure is inadmissible in a probation revocation proceeding.”)⁸ Just as we have found no material difference between probationers and parolees in the context of constitutional guarantees, we find that for purposes of adherence to the Miranda doctrine, there is no significant basis for differentiating between probation and parole officers.⁹ Cf. State v. Gallagher, supra.

The Maryland Court of Special Appeals, in Marrs v. State, supra, has stated the rationale which supports our holding: “* * * It seems to us that an accused, whose essential obligation it is to ‘report to’ and ‘answer questions posed by a probation officer,’ United States v. Rea, 678 F. 2d 382 (2d Cir. 1982), is under even heavier psychological pressure to answer questions put by his probation officer, a figure of both authority and trust. A probationer, who often talks to his supervising officer as a counselor and confidante, might very well assume that any statements made by him are in some way confidential thus bringing into play the mandates of Miranda. * * *” 53 Md. App. at 233, 452 A. 2d at 993-994.

Further, we note the deceptive effect engendered by the in-custody questioning of a probationer by his probation officer. Justice Thurgood Marshall, dissenting in Murphy, supra, emphasized the potential abuse of the probationer-probation officer relationship:

“* * * It is true, as the majority points out, that the discussion between a probation officer and a probationer is likely to be less coercive and intimidating than a discussion between a police officer and a suspect in custody. Ante, at 433. But it is precisely in that fact that the danger lies. In contrast to the inherently adversarial relationship between a suspect and a policeman, the relationship between a probationer and the officer to whom he reports is likely to incorporate elements of confidentiality, even friendship. Indeed, many probation officers deliberately cultivate such bonds with their charges. The point should not be overstated; undoubtedly, few probationers are entirely blind to the fact that their probation officers are ‘peace officers],. . . allied, to a greater or lesser extent, with [their] fellow peace officers.’ Fare v. Michael C., 442 U.S. 707, 720 (1979). On the other hand, many probationers develop ‘relationship^] of trust and cooperation’ with their officers. Id., at 722. Through abuse of that trust, a probation officer can elicit admissions from a probationer that the probationer would be unlikely to make to a hostile police interrogator.” (Footnotes omitted.) 465 U.S. at 459-460.

The circumstances in the present case demonstrate the danger. First, the call to Fuqua was made shortly after the defendant was taken to the county jail. For what purpose was that call made? Was it not that Fuqua would be able to elicit information from Roberts? Fuqua met with Roberts in a “holding area” which is enclosed behind a security door, and no one else was present. In this atmosphere of privacy, Fuqua could exploit his relationship with Roberts. It is not clear from the record who initiated the conversation, but it can be inferred that Fuqua knew his conduct and words were “reasonably likely to elicit an incriminating response from [Roberts].”¹⁰ Rhode Island v. Innis (1980), 446 U.S. 291, 301.¹¹

Finally, Fuqua recorded Roberts’ comments in an investigative workbook. However, these statements were not written in Roberts’ presence nor was he aware that Fuqua would write them down. The appearance of deception is evident. The result is precisely that which the court in Miranda sought to prevent.¹²

We are persuaded that the better rule is followed in those jurisdictions which require a probation officer to give Miranda warnings prior to questioning an in-custody probationer. Accordingly, we hold that statements 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.

Ill

Even if the conversation between the defendant and Fuqúa falls within the scope of Miranda, the state argues that the warning given to the defendant at the time of his arrest is sufficient for constitutional and Miranda purposes. No new warning, the state maintains, was necessary at the time probation officer Fuqua engaged the defendant in conversation.¹³

The standard by which we measure this argument is set forth in State v. Burge (1985), 195 Conn. 232, 487 A. 2d 532, wherein the Supreme Court of Connecticut stated:

“Early Miranda warnings may be constitutionally sufficient if they precede interrogation that directly produces information so immediately incriminating that the defendant’s status within a relatively brief period of time becomes that of a suspect in custody. The test is whether the warnings given are, in light of the particular facts and the totality of the circumstances, sufficiently proximate in time and place to custodial status to serve as protection ‘from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation. ’ Berkemer v. McCarty, supra, 3145; see Jarrell v. Balkcom, 735 F. 2d 1242, 1253-54, reh. denied, 740 F. 2d 979 (11th Cir. 1984); State v. Mitchell, 104 Idaho 493, 496-97, 660 P. 2d 1336, cert. denied, 461 U.S. 934, 103 S. Ct. 2101, 77 L. Ed. 2d 308 (1983); Edwards v. State, 274 Ind. 387, 391, 412 N.E. 2d 223 (1980); People v. O’Donnell, 127 Mich. App. 749, 339 N.W. 2d 540 (1983). We recognize that precustodial warnings may fail to provide the necessary protection if the overall situation becomes significantly more coercive as a result of a change to custodial status or if, because of a significant lapse in the process of interrogation, the warnings have become so stale as to dilute their effectiveness. Cf. United States v. Paulton, 540 F. 2d 886, 890-91 (1976); Grimes v. State, 454 N.E. 2d 388 (Ind. 1983); State v. Gilbert, 98 N.M. 530, 650 P. 2d 814 (1982), * * *; State v. McZorn, 288 N.C. 417, 433-34, 219 S.E. 2d 201 (1975), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3210, 49 L. Ed. 2d 1210 (1976); Ringel, Searches, Seizures, Arrests and Confessions (1984) § 26.3(c).” (Emphasis added.) Id. at 248-249, 487 A. 2d at 543.

The totality of the circumstances test is explained by the Supreme Court of North Carolina in State v. McZorn (1975), 288 N.C. 417, 219 S.E. 2d 201. The following criteria are set forth:

“* * * (1) [T]he length of time between the giving of the first warnings and subsequent interrogation,

* * * (2) whether the warnings and the subsequent interrogation were given in the same or different places,

* * * (3) whether the warnings were given and the subsequent interrogation conducted by the same or different officers, * * * (4) the extent to which the subsequent statement differed from any previous statements; * * * [and] (5) the apparent intellectual and emotional state of. the suspect. * * *” (Citations omitted.) Id. at 434, 219 S.E. 2d at 212. See, also, State v. Myers (Me. 1975), 345 A. 2d 500; State v. Artis (1981), 304 N.C. 378, 283 S.E. 2d 522.

Applying these standards to the case sub judice, we note that Roberts was given warnings at the time of arrest (approximately two hours prior to talking to Fuqua), and that the record does not establish whether those warnings were given in the context of interrogation. Second, the prior warnings were given at Roberts’ girlfriend’s home while the subsequent interrogation took place at the county jail. Third, the warnings were given by police officers, whereas the interrogation was conducted by a probation officer (having a prior relationship with the defendant Roberts). Thus, the warnings given at the time of arrest fail on the criteria necessary to satisfy the totality-of-circumstances test.

IV

Finally, we reject the appellant’s contention that Roberts’ failure to file a pre-trial motion to suppress his probation officer’s testimony pursuant to Crim. R. 12(B)(3) constituted a waiver of his right to object to its admission. Crim. R. 12(G) provides that “[f]ailure by the defendant to raise defenses or objections * * * which must be made prior to trial, * * * pursuant to subdivision (C), * * * shall constitute waiver thereof, but the court for good cause shown may grant relief from the waiver.” (Emphasis added.) Roberts’ counsel did not receive notice from appellant"that Fuqua was a potential witness or learn of the damaging nature of Fuqua’s testimony until the first day of trial. Appellee was not afforded a reasonable opportunity to comply with Crim. R. 12(C).

Further, it was unnecessary for the appellate court to reach the issue of plain error. The parties stipulated that the record should have reflected an objection during trial to the testimony of Fuqua and appellant conceded, in argument before this court, that an objection was made.

Accordingly, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Sweeney, Locher and Wright, JJ., concur. Moyer, C.J., Holmes and Douglas, JJ., dissent.

1 The court defined “custodial interrogation” as “* * * 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.” Miranda v. Arizona, supra, at 444.

2 The Self-Incrimination Clause provides: “No person * * * shall be compelled in any criminal case to be a witness against himself * * *.” Fifth Amendment to the United States Constitution. The Miranda court found that a pre-trial custodial interrogation was an extension of the criminal case. Id. at 467. The self-incrimination privilege is applicable to state proceedings by virtue of the Fourteenth Amendment. Malloy v. Hogan (1964), 378 U.S. 1. The privilege against self-incrimiñation has an independent basis as found in Section 10, Article I of the Ohio Constitution, which provides in pertinent part:

“No person shall be compelled, in any criminal case, to be a witness against himself * * *.”

3 In Minnesota v. Murphy, supra, the respondent’s probation officer received information from a treatment counselor that respondent, during the course of treatment, admitted to commission of a previous rape and murder. The probation officer wrote to respondent requesting that he contact her to discuss a treatment plan for the remainder of his probationary period. Respondent met with his probation officer in her office, and in response to questioning confessed that he committed the rape and murder.

4 See, generally, Comments, Probation Officer Interrogation of an In-Custody Probationer: An Analysis of the Applicability of the Miranda Doctrine and the Volun-tariness Standard (1976), 10 U.S.F. L. Rev. 441; Note, State v. Magby: Application of the Miranda Doctrine to In-Custody Probationers (1977), 7 Cap. U. L. Rev. 103.

5 The courts in People v. Ronald W., supra, and State v. Johnson, supra, also determined that each defendant was not in custody. That finding influenced the result in each of those cases.

6 Although the court in State v. Magby, supra, noted that admission of the probationer’s statements to his probation officer was error, the court held the error harmless since the defendant’s guilt was “overwhelmingly established by other evidence and [the error] did not contribute to the verdict.” Id. at 353, 554 P. 2d at 1280.

7 In State v. Lekas, supra, the Supreme Court of Kansas found a Miranda obligation primarily because it considered parole officers and probation officers to be law enforcement officers under a Kansas statute.

In Ohio, R.C. 2901.01(K) provides:

“ ‘Law enforcement officer’ means any of the following:

<(* * *

“(2) An officer, agent, or employee of the state or any of its agencies, instrumen-talities, or political subdivisions, upon whom, by statute, a duty to conserve the peace or to enforce all or certain laws is imposed and the authority to arrest violators is conferred, unthin the limits of such statutory duty and authority, * * *.” (Emphasis added.)

R.C. 2951.08 provides in part:

“During a period of probation, any field officer or probation officer may arrest the defendant without a warrant and bring him before the judge or magistrate before whom the cause was pending. * * *”

8 The court in Minnesota v. Murphy, supra, stated that the privilege against self-incrimination “* * * not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ * * * [citations omitted].” Id. at 426. The court also stated:

“A defendant does not lose this protection by reason of his conviction of a crime; notwithstanding that a defendant is imprisoned or on probation at the time he makes incriminating statements, if those statements are compelled they are inadmissible in a subsequent trial for a crime other than that for which he has been convicted.” (Emphasis added.) Id.

9 Custodial interrogation is not limited to police stationhouse interrogation. See Mathis v. United States (1968), 391 U.S. 1; Orozco v. Texas (1969), 394 U.S. 324. Neither is Fifth Amendment protection limited to any single source of official interrogation. Where a defendant is subject to the inherently compelling pressures of a custodial situation, he is entitled to warning before any official interrogation. Estelle v. Smith (1981), 451 U.S. 454, 467. The official interrogators were corrections officers in Whitfield v. State (1980), 287 Md. 124, 411 A. 2d 415, certiorari dismissed (1980), 446 U.S. 993; an agent of the Internal Revenue Service in Mathis v. United States, supra; a court-designated psychiatrist, Estelle v. Smith, supra; and a prosecuting attorney in People v. Arnold (1967), 66 Cal. 2d 438, 58 Cal. Rptr. 115, 426 P. 2d 515.

10 The Ninth Circuit Court of Appeals, in describing the law enforcement aspects of the Federal Probation Act, encouraged mutually beneficial cooperation between law enforcement and probation departments but stated, “* * * under no circumstances should cooperation between law enforcement officers and probation officers be permitted to make the probation system ‘a subterfuge for criminal investigations.’ ” (Citation omitted.) United States v. Consuelo-Gonzalez (C.A. 9, 1975), 521 F. 2d 259, 267.

11 In Rhode Island, the United States Supreme Court stated:

“* * * [T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (Emphasis added.) Id.

12 In Miranda the court noted:

“* * * We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak' in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.” (Footnote omitted.) 384 U.S. at 461.

13 See, e.g., United States, ex rel. Patton, v. Thieret (C.A. 7, 1986), 791F. 2d 543, certiorari denied (1986), 479 U.S. _, 93 L. Ed. 2d 259 (Miranda warnings given and defendant detained in holding cell for approximately forty minutes before making oral statement); Stumes v. Solem (C.A. 8, 1985), 752 F. 2d 317, certiorari denied (1985), 471 U.S. 1067 (interview came nearly six and one-half hours after Miranda rights given); Jarrell v. Balkcom (C.A. 11, 1984), 735 F. 2d 1242, certiorari denied (1985), 471 U.S. 1103, rehearing denied (1985), 473 U.S. 921 (confession made less than four hours after issuance of Miranda warnings); United States, ex rel. Henne, v. Fike (C.A. 7, 1977), 563 F. 2d 809, certiorari denied (1978), 434 U.S. 1072 (nine hours between Miranda warnings and waiver of new warnings); State v. Noriega (1984), 142 Ariz. 474, 690 P. 2d 775 (statement made at second interrogation two hours after initially receiving Miranda warnings); Bush v. State (Fla. 1984), 461 So. 2d 936, certiorari denied (1986), 475 U.S. ___, 89 L. Ed. 2d 345 (confession given eleven hours after Miranda warning). See, also, United States v. Hopkins (C.A. 5, 1970), 433 F. 2d 1041, certiorari denied (1971), 401 U.S. 1013 (no new warnings required where change from state police officer questioning defendant about state crime to federal officer questioning about federal crime); Commonwealth v. Bradley (1972), 449 Pa. 19, 295 A. 2d 842 (confession at stationhouse without warnings less than one hour after warnings in squad car by different officers valid). See, generally, 1 Lafave & Israel, Criminal Procedure (1984) 520, Section 6.8.