In re T.D.S.

This decision has been published in Ohio Official Reports at 174 Ohio St.3d 574.

IN RE T.D.S.

[Cite as In re T.D.S., 2024-Ohio-595.]

Admissibility of evidence—Statements made by juvenile after he was read his

Miranda rights were properly admitted at trial because he knowingly,

intelligently, and voluntarily waived his rights—Court of appeals’ judgment

affirmed.

(No. 2022-0359—Submitted May 3, 2023—Decided February 21, 2024.)

APPEAL from the Court of Appeals for Cuyahoga County,

No. 110471, 2022-Ohio-525.

__________________

DETERS, J.

{¶ 1} T.D.S., a juvenile, contends that the juvenile court should have

granted a motion to suppress all the statements that he made to police officers when

they were investigating the homicide of another juvenile. After reviewing the

totality of the circumstances surrounding T.D.S.’s statements, the Eighth District

Court of Appeals concluded that T.D.S. had waived his Miranda rights knowingly,

intelligently, and voluntarily. We agree, so we affirm the judgment of the court of

appeals.

I. BACKGROUND

{¶ 2} In September 2019, Cleveland police officer Luther Roddy and his

partner responded to a report of shots fired in an apartment building. While

searching the building, the officers discovered a male juvenile—later identified as

14-year-old S.G.—with a gunshot wound to his chest and one to his leg. S.G. later

died of his injuries. Based on information received from a high-school principal,

police investigators’ attention turned to T.D.S., who was then 15 years old.

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{¶ 3} Detectives Aaron Reese, Michael Legg, and Luis Rivera went to

T.D.S.’s mother’s house to ask T.D.S. about the shooting. The encounter in the

house, which lasted an hour and 37 minutes, was captured on Detective Rivera’s

body-worn camera. After getting permission from T.D.S.’s mother, Detective

Reese asked T.D.S. where he had been on the day S.G. was shot.

{¶ 4} Initially, T.D.S. denied having been at the apartment building where

S.G. was found and challenged the detectives’ assertions that a person matching his

description had been seen leaving the building. But after about 35 minutes of

questioning by the detectives, T.D.S. asked whether he and the detectives could go

somewhere else. In response, his mother left the room (but remained close-by),

and Detective Legg also left. T.D.S. then told Detective Reese that he, S.G., and a

third person had been in the building and that the third person had had a gun. T.D.S.

repeatedly told the detectives this version of the story, and he continued to deny

that he was the person whom witnesses had seen leaving the building. He

maintained that the third person had shot the gun.

{¶ 5} Upon further questioning by the detectives, T.D.S. told them that he

had accidentally shot S.G. while playing with a gun. He also agreed to show

Detective Reese where he had thrown the gun after he had left the building. After

these statements, Detective Reese told T.D.S. that he was going to read him his

rights. The detective asked T.D.S.’s mother to sit by the juvenile. After Detective

Reese informed T.D.S. of his rights under Miranda, the detective asked him

whether he understood. See Miranda v. Arizona, 384 U.S. 436, 466, 86 S.Ct. 1602,

16 L.Ed.2d 694 (1966). T.D.S. nodded his head.

{¶ 6} The remainder of the recording—about 30 minutes—shows

Detectives Reese and Rivera asking an occasional question as the detectives wait

for uniformed officers to transport T.D.S. to the field where he said he had thrown

the gun. The recording ends when two uniformed police officers arrive.

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{¶ 7} After searching the field where T.D.S. said he had thrown the gun—

which was never recovered—the detectives took T.D.S. to the apartment building

so that he could show them where the shooting had occurred. While there, T.D.S.

told the detectives that he had been sitting on a crate when he accidentally shot S.G.

He then described walking toward S.G. and accidently shooting him a second time.

{¶ 8} Next, according to Detective Reese, the detectives accompanied

T.D.S. to the police station and interviewed him there. (Although a recording of

that interview—exhibit No. 402—was viewed during the adjudicatory hearing and

entered into evidence, the recording is not in the record that was provided to this

court.) Detective Reese testified about T.D.S.’s interview. According to Detective

Reese, T.D.S. told the detectives that S.G. had stolen a gun from a person named

Vaughn and that Vaughn had reached out to T.D.S. and asked him to retrieve it.

{¶ 9} Other evidence lends credibility to T.D.S.’s assertions about Vaughn.

Text messages between Vaughn and S.G. reflect Vaughn’s asking S.G. about the

gun. And S.G.’s cousin testified that a few days before S.G. was killed, he heard

T.D.S. tell S.G. that someone had offered him $1,000 to kill S.G. but that he wasn’t

going to go through with it.

{¶ 10} T.D.S. was charged with murder, two counts of felonious assault,

tampering with evidence, and having a weapon while under a disability and with

an accompanying serious-youthful-offender specification. The juvenile court

determined that T.D.S. was amenable to treatment in the juvenile system and

declined to transfer his case to adult court. The court also determined, following a

hearing, that T.D.S. was competent to stand trial.

{¶ 11} T.D.S.’s counsel filed a motion to suppress his statements to the

detectives. During a hearing on the motion, the state argued that the statements

made by T.D.S. before he was informed of his Miranda rights were admissible

because he was not in custody when he made them. T.D.S.’s counsel, on the other

hand, maintained that he was in custody the entire time and that he had not

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knowingly, intelligently, and voluntarily waived his right against self-

incrimination.

{¶ 12} Following the hearing, the juvenile court entered an order

concluding that “the statements of [T.D.S.] up to the point where he was given his

Miranda warning and advisement of rights are suppressed.”

{¶ 13} The case proceeded to an adjudicatory trial. Before testimony began,

the assistant prosecuting attorneys confirmed with the juvenile court that they could

use T.D.S.’s statements that were made after he was informed of his Miranda rights.

The judge replied, “I was not presented evidence of statements made during the

station interrogation as part of the Motion to Suppress, so I make no findings as to

the station interrogation.” When defense counsel protested that she was “asserting

that any subsequent statements that he made at the police station or anywhere to the

police were fruit of the poisonous tree,” the juvenile court replied, “But you didn’t

submit or present that interview [at the suppression hearing].”

{¶ 14} After the presentation of evidence, the court adjudicated T.D.S.

delinquent for felony murder, felonious assault, tampering with evidence, and

having a weapon while under a disability and found him to be a serious youthful

offender. The court imposed an aggregate adult prison sentence of 15 years to life,

with an additional 3-year consecutive sentence for firearm specifications. Those

sentences were stayed on the condition that T.D.S. successfully complete his

juvenile sentence. For his juvenile disposition, T.D.S. was committed to the Ohio

Department of Youth Services until age 21.

{¶ 15} T.D.S. appealed his adjudication and disposition to the Eighth

District. He argued that he had been incompetent to stand trial, that his adjudication

was not supported by credible evidence, that he had been denied the effective

assistance of counsel because his defense counsel had not filed a motion to dismiss

some charges against him, and that the juvenile court erred in denying his motion

to suppress, in part because he had not voluntarily waived his Miranda rights. The

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court of appeals affirmed his adjudication and disposition, finding none of his

claims to have merit. T.D.S. appealed to this court, challenging the court of

appeals’ judgment but asserting arguments related only to the admission of his

statements. We accepted jurisdiction over the case to consider two propositions of

law:

Proposition of Law I: When the police employ a deliberate

two-step interrogation where they question first, and warn later, a

child’s post warning statements are presumed inadmissible.

Proposition of Law II: Courts must assess the totality of the

circumstances, including the child’s age, experience, education,

background, intelligence, and capacity to understand when

determining whether a child knowingly, intelligently, and

voluntarily waived their Miranda rights in a question first, warn

later scenario.

See 167 Ohio St.3d 1518, 2022-Ohio-3214, 195 N.E.3d 139.

II. ANALYSIS

{¶ 16} T.D.S. challenges the use of his post-Miranda statements during trial

on two related fronts. He argues that he did not waive his Miranda rights

knowingly, intelligently, and voluntarily. And he maintains that the statements

made after the warning should have been presumed inadmissible under this court’s

reasoning in State v. Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985.

Neither argument has merit. The totality of the circumstances shows that his waiver

was knowing, intelligent, and voluntary. And his argument regarding Farris fails

for multiple reasons: he did not preserve the issue for our consideration, he did not

provide an adequate record for us to review his claim, and he stretches our

reasoning in Farris too far.

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A. T.D.S. waived his rights knowingly, intelligently, and voluntarily

{¶ 17} Only T.D.S.’s statements following the Miranda warnings are at

issue here; the prewarning statements were all suppressed. For his postwarning

statements to be admissible, the state needed to prove by a preponderance of the

evidence that T.D.S. waived his rights knowingly, intelligently, and voluntarily.

State v. Garrett, 171 Ohio St.3d 139, 2022-Ohio-4218, 216 N.E.3d 569, ¶ 101.

In construing whether a juvenile defendant’s confession has

been involuntarily induced, courts should consider the standard set

forth in State v. Edwards [49 Ohio St.2d 31, 358 N.E.2d 1051

(1976), vacated in part on other grounds, 438 U.S. 911, 98 S.Ct.

3147, 57 L.Ed.2d 1155 (1978)], which looks to the totality of the

circumstances, including the age, mentality, and prior criminal

experience of the accused; the length, intensity and frequency of

interrogation; the existence of physical deprivation or mistreatment;

and the existence of threat or inducement.

In re Watson, 47 Ohio St.3d 86, 89-90, 548 N.E.2d 210 (1989); see also Fare v.

Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) (“This

totality-of-the-circumstances approach is adequate to determine whether there has

been a waiver even where interrogation of juveniles is involved. We discern no

persuasive reasons why any other approach is required where the question is

whether a juvenile has waived his rights * * *”). “[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.” (Emphasis sic.) State v. Wesson,

137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 35.

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1. Under the totality of the circumstances, T.D.S.’s waiver was

knowing, intelligent, and voluntary

{¶ 18} T.D.S. maintains that he did not knowingly, intelligently, and

voluntarily waive his rights. T.D.S. claims in his brief that “[a]s the warnings were

being given, [he] was crying and burying his head into his mother’s chest.” The

video recording, however, tells a different story. T.D.S. did throw himself into his

mother’s arms as Detective Reese began to read the warnings, but both Detective

Reese and T.D.S.’s mother told him that he needed to listen. His mother went so

far as to separate him from her before the warnings were read.

{¶ 19} After reading the Miranda warnings to T.D.S., Detective Reese

asked whether he understood them. T.D.S. nodded his head and continued to

answer the detective’s questions. T.D.S. points out that he was not given a written

copy of the warnings and that he did not sign a waiver, but there is no requirement

that a waiver be written. State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114

N.E.3d 1138, ¶ 68. That T.D.S. indicated that he understood his rights and that he

spoke with detectives after being informed of his rights shows that he waived them.

Id., citing Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d

1098 (2010). Nevertheless, T.D.S. maintains that his waiver was not knowing,

intelligent, and voluntary.

{¶ 20} In support of his argument, T.D.S. emphasizes that he has a low IQ.

But Dr. Terry Pinsoneault, one of the psychologists who evaluated T.D.S.’s

competency to stand trial, opined that T.D.S.’s communications skills were

somewhat better than his IQ might reflect. Even T.D.S. admitted during

questioning at his mother’s house that his behavior in school was a cause of his

academic struggles. In any event, as we have noted, “deficient intelligence is but

one factor in the totality of the circumstances that must be considered in

determining the voluntariness of a waiver.” State v. Ford, 158 Ohio St.3d 139,

2019-Ohio-4539, 140 N.E.3d. 616, ¶ 190.

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{¶ 21} Courts also look to a juvenile’s prior criminal experience. T.D.S.

minimizes his prior contact with the juvenile system. As recognized by the court

of appeals, his adjudications of delinquency for attempted arson in 2014 and theft

and falsification in 2019 must be considered as part of the totality of the

circumstances. 2022-Ohio-525, ¶ 5, 20. Dr. Steven Neuhaus, another psychologist

who evaluated T.D.S.’s competency, stated that T.D.S. had a “good understanding”

of his prior adjudications.

{¶ 22} Our consideration of the “length, intensity and frequency” of

T.D.S.’s interrogation, see Watson, 47 Ohio St.3d at 90, 548 N.E.2d 210, is limited

by the record we have before us. The questioning at T.D.S.’s mother’s house lasted

about an hour and six minutes before he was read his Miranda rights. The recording

continued for about another half hour, but Detectives Reese and Rivera asked only

a couple of follow-up questions during that time. For example, Detective Reese

asked whether T.D.S. was sure that the gun was not at his house. And Detective

Rivera asked how much of the story the alleged third person at the murder site

knew.

{¶ 23} The questioning at the house leading up to the Miranda warnings

was not intense. T.D.S.’s mother was in the room except briefly after T.D.S.

indicated that he wanted to talk to detectives without his mother present. And even

then, she was nearby and can be heard speaking during the questioning. T.D.S. did

not seem intimidated by the detectives. He even went so far as to challenge them.

For example, at one point, T.D.S. asked Detective Reese, “Which way did I go into

the building and which did I come out? * * * You tell me, you got so much

evidence.” Moreover, the detectives accommodated T.D.S.’s request that Detective

Legg leave.

{¶ 24} The only other recording of T.D.S.’s statements that was included in

the record shows him and the detectives walking toward and standing in the

building where the shooting occurred. As T.D.S. is walking, an unidentified officer

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asks him whether he needs to stop and if he is all right. While in the building, the

detectives asked where the shooting happened, and T.D.S. explained how he had

shot S.G. two times accidentally. The recording of that encounter is 6 minutes and

25 seconds long. The detectives’ questions about how the shooting had occurred

were asked in conversational tones. Again, there was no intensity to the

questioning.

{¶ 25} The total length of time of the questioning, which began at his

mother’s house and ended at the police station, cannot be determined from the

record. But the recordings that were admitted at trial and included in the record

here—the questioning at the house and the visit to the scene of the shooting—add

up to approximately an hour and 45 minutes. Although Detective Reese stated that

the detectives and T.D.S. had spent “a few hours” in the field looking for the gun

that T.D.S. had allegedly thrown, the detective later told the court that they had

spent two hours in the field. And according to an assistant prosecuting attorney’s

statement during the trial, the recording of the interview at the police station was

37 minutes long.

{¶ 26} In short, T.D.S.’s prior experience in the juvenile system, his

understanding of that system, and his communication with detectives indicate that

his waiver of his Miranda rights was done knowingly and intelligently. Moreover,

nothing about the tone or length of the questioning resulted in his will being

overborne. But T.D.S. maintains that the detectives’ actions amounted to coercion.

2. T.D.S.’s statements were not coerced by the detectives

{¶ 27} Much of T.D.S.’s argument focuses on what he maintains were

“coercive tactics” used by the police detectives. Again, we are limited in what we

have before us to review—the statements he made during the interview in his

mother’s house, which were, for the most part, suppressed by the juvenile court,

and T.D.S.’s statements while at the scene of the shooting. Neither setting reveals

evidence of police coercion.

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{¶ 28} T.D.S. claims that detectives lied to him—telling him that witnesses

had identified him by name, that his DNA was found on S.G., and that gunshot

residue was found on his property. But T.D.S. does not direct us to these statements

in the record. Rather, in the recording from his mother’s house, Detective Reese

can be heard asking T.D.S. whether there would be any reason his DNA would be

on S.G.’s clothing and whether gunshot residue would be found on his clothes. As

to the statement about gunshot residue, T.D.S.’s clothes were not seized until after

he was Mirandized and after his mother had given her consent for them to be taken,

so T.D.S. knew that the officers had no such evidence.

{¶ 29} Likewise, another of T.D.S.’s claims—that he was isolated from his

mother and sister—is not borne out by the recording. Throughout the questioning

in her house, T.D.S.’s mother was either in the room where he was being

interviewed or nearby. And contrary to T.D.S.’s claim that he was made to sit alone

while waiting for the uniformed police to take him to the field, his mother and sister

are seen with him until the end of the video recording.

{¶ 30} There was no indication of physical abuse or threats or deprivation

of food, medical treatment, or sleep. See Wesson, 137 Ohio St.3d 309, 2013-Ohio-

4575, 999 N.E.2d 557, at ¶ 35. While Detective Reese did grab T.D.S.’s arm when

he started to get up from the couch, he did not grab him roughly. At that point,

Detective Reese had decided to make an arrest; T.D.S. was not free to leave.

Moreover, Detective Reese told T.D.S.’s mother to sit with him on the couch. And

while T.D.S. was waiting for the uniformed police officers, he was drinking from a

bottle of water provided by his mother. In short, nothing that occurred in his

mother’s house showed police coercion. The video recording taken while at the

scene of the shooting is only a few minutes long. But no threats or mistreatment

occurred then.

{¶ 31} T.D.S. made two other assertions that merit comment. First, during

oral argument, his counsel suggested that T.D.S.’s mother’s presence during his

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questioning was not a benefit to him but was instead coercive. Besides

contradicting his claim in his brief that he had been isolated from his mother, his

suggestion stands in contrast to this court’s statement that “[a] juvenile’s access to

advice from a parent * * * also plays a role in assuring that the juvenile’s waiver is

knowing, intelligent, and voluntary,” State v. Barker, 149 Ohio St.3d 1, 2016-Ohio-

2708, 73 N.E.3d 365, ¶ 24. His mother urged him to talk to detectives if he knew

something. Setting aside whether a mother’s telling her son to talk to detectives if

he knows something is coercive, the comments from T.D.S.’s mother do not

amount to police coercion when determining whether a waiver of rights was

voluntary. “Absent police conduct causally related to the confession, there is

simply no basis for concluding that any state actor has deprived a criminal

defendant of due process of law.” (Emphasis added.) Colorado v. Connelly, 479

U.S. 157, 164, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

{¶ 32} T.D.S. also proposes that a juvenile’s race be taken into account

when considering the voluntariness of his waiver. We note our deep discomfort

with the suggestion that the ability to understand one’s Miranda rights depends on

one’s race. Moreover, it’s hard to see how such an argument could withstand an

equal-protection challenge. But in any event, T.D.S. did not make this argument

below, so he has forfeited it. The court of appeals correctly determined, based on

the totality of the circumstances, that T.D.S. knowingly, intelligently, and

voluntarily waived his Miranda rights.

B. T.D.S.’s Farris argument

{¶ 33} T.D.S.’s claims regarding police coercion fold into his first

proposition of law. He argues that this court should apply Farris, 109 Ohio St.3d

519, 2006-Ohio-3255, 849 N.E.2d 985, to this case and presume that the statements

he made after being informed of his Miranda rights are inadmissible. The problem

is that T.D.S. never raised this argument in either the juvenile court or in his merit

brief in the court of appeals, so it is forfeited. And even if he had preserved the

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argument, he overstates the holding in Farris. The court in Farris did not change

the rule that uncoerced statements following a Miranda warning constitute an

implied waiver.

1. State v. Farris

{¶ 34} In Farris, this court considered the constitutionality of admitting into

evidence the statements that Stephen Farris made to a police officer during a traffic

stop for speeding. The defendant first made inculpatory statements while in

custody in a police cruiser before having been informed of his Miranda rights.

Farris at ¶ 3. After the statements were made, a police officer immediately

informed Farris of his rights and repeated the same questions that had elicited the

incriminating statements from him. Id. at ¶ 4.

{¶ 35} This court held that the defendant’s statements made before being

informed of his rights should have been excluded because he was in custody at the

time. Id. at ¶ 14. Then we turned our attention to whether a Miranda warning cured

the problem, making his postwarning statements admissible. Farris at ¶ 30. We

reasoned that “[t]emporally and substantively, [the officer’s] questioning of Farris

constituted a single interrogation,” id., so that “Farris’s postwarning statements

were not the result of an informed choice and [were] therefore inadmissible,” id. at

¶ 36.

2. T.D.S. waived any argument regarding Farris

{¶ 36} T.D.S. asks this court to apply its reasoning in Farris and hold that

his postwarning statements are presumed inadmissible. But “[a] first principle of

appellate jurisdiction is that a party ordinarily may not present an argument on

appeal that it failed to raise below.” State v. Wintermeyer, 158 Ohio St.3d 513,

2019-Ohio-5156, 145 N.E.3d 278, ¶ 10. Despite T.D.S.’s argument to the contrary,

he did not preserve this argument in either the juvenile court or the appellate court.

{¶ 37} In the juvenile court, T.D.S. argued in his motion to suppress that he

was in custody when he gave his statements at his mother’s house and that, in any

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case, his statements were involuntary. He did not mention Farris or a presumption

of inadmissibility. True, toward the end of his motion, T.D.S. asked the court to

suppress “any and all purported statements obtained in contravention of his legal

rights, as well as the subsequent statements and identification as the fruit of such

tainted evidence.” But that request was not sufficient to put forth an argument

under Farris, especially because the cases underlying the reasoning in Farris—

Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), and

Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985)—eschewed

the “fruit of the poisonous tree” justification for excluding a postwarning

confession following an unwarned statement. Farris, 109 Ohio St.3d 519, 2006-

Ohio-3255, 849 N.E.2d 985, at ¶ 21-22. “[The Elstad] court explained that

evidence can be excluded as fruit of the poisonous tree only after a constitutional

violation and that a failure to give Miranda warnings is not equivalent to a violation

of the Constitution * * *.” Farris at ¶ 25.

{¶ 38} The motion-to-suppress hearing focused on the arguments made in

T.D.S.’s motion. Again, there was no suggestion that Farris applied. And as the

juvenile court noted at the adjudicatory trial, during the motion-to-suppress hearing,

there was no mention of statements other than those that were made by T.D.S. while

at his mother’s house.

{¶ 39} Although T.D.S. claims in his brief to this court that he raised Farris

in his argument to the court of appeals, the pages of his court of appeals’ brief to

which he cites contain no mention of the case. Instead, it appears the case was

raised for the first time in his reply brief. “Appellate courts generally will not

consider a new issue presented for the first time in a reply brief.” State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18. Thus, it

is not surprising that the court of appeals did not address any argument regarding

Farris.

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{¶ 40} Moreover, because T.D.S. did not raise Farris in his merit brief in

the court of appeals, he prevented vetting of the juvenile court’s decision with

respect to custody—an issue central to the Farris analysis. Farris applies when a

suspect makes statements while in custody before being given Miranda warnings.

Here, the juvenile court determined that T.D.S. was in custody when he made

statements in his mother’s house. But as the state points out, it could not appeal

from this judgment, because it could not certify that the ruling to suppress T.D.S.’s

statements had “rendered the state’s proof * * * so weak in its entirety that any

reasonable possibility of effective prosecution [had] been destroyed.” Crim.R.

12(K)(2). So, the court of appeals considered the issue to have been forfeited by the

state. 2022-Ohio-525 at ¶ 18. The only way the appellate court could have

reviewed the custody determination, then, was for T.D.S. to put the pre-Miranda

statements at issue. But he didn’t. Because the issue that T.D.S. put before the

court of appeals addressed only his post-Miranda statements, the court of appeals

never decided whether the juvenile court correctly determined that T.D.S. was in

custody when he was questioned by the detectives in his mother’s house.

3. The record does not support T.D.S.’s Farris argument

{¶ 41} Even if T.D.S. had argued Farris in the court of appeals, the record

would not have supported his argument. Farris discussed the factors to be

considered in determining whether a Miranda warning given after unwarned,

custodial statements are made can be effective:

“[T]he completeness and detail of the questions and answers

in the first round of interrogation, the overlapping content of the

two statements, the timing and setting of the first and the second,

the continuity of police personnel, and the degree to which the

interrogator’s questions treated the second round as continuous

with the first.”

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Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, at ¶ 28, quoting

Seibert, 542 U.S. at 615, 124 S.Ct. 2601, 159 L.Ed.2d 643.

{¶ 42} The factors discussed in Farris reveal the flaw in T.D.S.’s proposal

that the case be applied here to create a presumption of inadmissibility of his

postwarning statements. Farris should be understood as one part of the

consideration of the totality of the circumstances surrounding a waiver of Miranda

rights. Farris did not eliminate the general rule that “[w]here the prosecution shows

that a Miranda warning was given and that it was understood by the accused, an

accused’s uncoerced statement establishes an implied waiver of the right to remain

silent.” Berghuis, 560 U.S. at 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098.

{¶ 43} In any event, because T.D.S. did not raise the application of Farris’s

“question first, warn later” analysis during the hearing on his motion to suppress,

the record is not fully developed to consider the factors laid out in Farris. We do

not know how all the statements before and after the Miranda warning overlap.

(What we do know is that T.D.S. gave varying versions of the shooting throughout

the questioning.) And as discussed above, the timing and the setting of the post-

Miranda statements are also not clear. Moreover, because we do not have a

recording of the interview at the police station in our record, we do not know

whether the detectives “treated the second round as continuous with the first,” see

Seibert at 615. Given the record and T.D.S.’s failure to preserve the issue, we are

unable to further consider the applicability of Farris to the statements made by

T.D.S.

III. CONCLUSION

{¶ 44} The Eighth District Court of Appeals determined that T.D.S.’s

statements made after he was read his Miranda rights were admissible because he

knowingly, intelligently, and voluntarily waived his rights. We agree and affirm

the judgment of the court of appeals.

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Judgment affirmed.

KENNEDY, C.J., and FISCHER and DEWINE, JJ., concur.

DONNELLY, J., dissents, with an opinion.

BRUNNER, J., dissents, with an opinion joined by STEWART, J.

_________________

DONNELLY, J., dissenting.

{¶ 45} After reviewing this case with the benefit of a complete record and

briefing from the parties, I have come to believe that this appeal should be

dismissed as having been improvidently accepted.

{¶ 46} The conclusions reached in both the majority opinion and Justice

Brunner’s dissenting opinion turn on the application of settled law to the facts of

the case. And in the majority opinion, this application leads to the same result that

a unanimous panel of the Eighth District Court of Appeals reached when reviewing

this case. See 2022-Ohio-525, ¶ 18-20. Further, it appears that the more novel

issue—whether this court’s holding in State v. Farris, 109 Ohio St.3d 519, 2006-

Ohio-3255, 849 N.E.2d 985, should apply here—has not been properly preserved

for our review. See majority opinion, ¶ 36-43 And while I share the concerns

expressed in Justice Brunner’s dissenting opinion about some of the tactics that the

police used in their interrogation of T.D.S., I do not believe that this case is a proper

vehicle for addressing those concerns.

{¶ 47} At bottom, the majority’s resolution of this case provides nothing

new to either the bench or bar except a fact-specific assessment of the legality of

the police’s interrogation of T.D.S. For that reason, I respectfully dissent.

_________________

BRUNNER, J., dissenting.

I. INTRODUCTION

{¶ 48} In 2019, appellant, T.D.S., a 15-year-old with an IQ of 60 who was

on juvenile probation but who otherwise had little previous criminal-justice

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experience, became a suspect in a murder after Cleveland police detectives received

information from a school administrator.1 When three detectives, relying primarily

on this information, went to T.D.S.’s home, his mother let them in and ordered

T.D.S. to tell the detectives the truth. Before administering Miranda warnings to

T.D.S., see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966), at least one of the detectives repeatedly lied and told T.D.S. that they had

evidence of his guilt, repeatedly insisted that they knew he was guilty, repeatedly

threatened him with life in prison, and rejected each of T.D.S.’s denials of

involvement. The record shows that the detectives used psychological tactics to

manipulate the low-IQ 15-year-old to get him to admit to the crimes—suggesting

that the death of the victim might have been an accident and falsely promising

numerous times that they would help him. For the first hour of questioning, T.D.S.

denied that he had been involved in the murder, but he eventually confessed that he

had accidentally shot the victim, and he agreed to show the detectives where he had

disposed of the gun.

{¶ 49} Only after T.D.S. made this confession did one of the detectives

verbally give him Miranda warnings, and the warnings were given only after the

detective made the following statement: “Listen, I gotta read you your rights, OK.

1. The detective testified at trial as follows:

“Q: Okay. And what was your first order of business if you recall when

you were assigned to that case?

A [detective]: We always do in completing our original investigation,

start digging into, you know, the information relating to the initial call, looking at

9-1-1 calls, radio dispatch tapes and logs, but we had received some information

from a high school principal that caused us to follow up immediately on what he

had told us.

Q: And did you go speak with that individual?

A: Yes.

Q: And after speaking with him, had you developed a suspect?

A: Yes.

Q: And who was that?

A: [T.D.S.].

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But we’re still gonna talk. We ain’t done.” (Emphasis added.) At no point did any

detective give T.D.S. any written warnings. And T.D.S. never expressed that he

waived his rights, either orally or in writing. Following the recitation of the

Miranda warnings, the detective asked again to be shown where the gun had been

discarded—a gun that police did not find when they went to the empty field that

T.D.S. had identified, even though they excavated portions of the field with heavy

equipment. No further Miranda warnings were ever administered, and law-

enforcement personnel did not obtain an oral or written waiver of rights at any other

point in the interrogations. During the post-Miranda interrogations, the detectives

obtained additional confessions at two different locations from T.D.S. following

his initial confession made before the Miranda warnings were given.

{¶ 50} The juvenile court suppressed T.D.S.’s pre-Miranda-warnings

confession after determining that the interview of T.D.S. at his home had turned

into a custodial interrogation before T.D.S. made that confession. The court

rejected the detective’s argument that T.D.S. could not have been in custody at the

time of his first confession because there was no probable cause to arrest him until

he initially confessed. Even though the basis for initially questioning T.D.S. was

information from the school administrator, and even though the substance and

process of giving the Miranda warnings was substandard (never in writing) and

inadequate (having been given after the preamble: “Listen, I gotta read you your

rights, OK. But we’re still gonna talk. We ain’t done.” [Emphasis added.]), the

juvenile court did not suppress T.D.S.’s post-Miranda-warnings confessions, which

ended up being the key—and nearly the only—evidence used to adjudicate T.D.S.

delinquent for felony murder and other offenses. I disagree with the majority

opinion’s determination that the post-Miranda confessions were properly admitted.

It is unfair for the majority opinion to gloss over the manner in which the detectives

obtained all the confessions made and instead focus on the manner in which

T.D.S.’s counsel challenged his post-Miranda confessions in the juvenile court and

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in the court of appeals. Concluding that the objections raised by T.D.S.’s counsel

did not specifically address the detectives’ question-first-warn-later approach to

Miranda and that T.D.S. had therefore forfeited that objection is a stretch, based on

this record.

{¶ 51} This case involves a mix of circumstances that when considered

without a strong focus on the constitutionally mandated right to a fair trial, will

harm the future application of the law, especially for juveniles accused of adult

crimes. The circumstances here are troubling: a murder—someone’s life had been

violently taken; the suspect, T.D.S., was a 15-year-old who was on juvenile

probation and has a low IQ of 60; T.D.S.’s mother permitted three detectives to

enter her home and ask questions of her son when, unbeknownst to her, they were

proceeding largely on information received from a school administrator about

T.D.S.; T.D.S.’s mother sternly instructed T.D.S. to tell the truth when speaking to

the detectives; T.D.S.’s mother left him alone with the three detectives for a

significant period of time, and during that time, the interview became custodial;2

the detective leading the questioning used psychological pressure and other

coercive tactics of interrogation on T.D.S; the detectives failed to provide Miranda

warnings before the interrogation began and a confession was obtained, and when

2. The juvenile court determined that the questioning became a custodial interrogation after TDS’s

mother left the room. It noted:

At that point in the videoed interview [after TDS’s mother left the room], the

Court noted that the child’s body language or response began to change; that one

of the three detectives in the home moved to the couch where the child was seated,

as the interviewing detective remained on the child’s other side on an adjacent

couch. The Court cannot conclude that the child knew or had reasonable cause to

believe that he could terminate the interview or leave. The interview was

conducted in his home, and his mother did not challenge the stages of the

interview as its focus moved from interview to interrogation for a confession or

adverse statements made by the child. His attempt to move was curtailed as he

was encouraged to return to the couch and continue the interview. Subjectively,

he did not present as being able to leave. The Court finds that the child at this

point was detained in the custody of the officers in his home.

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the warnings were verbally administered, after at least an hour of questioning, the

detective qualified the warnings by saying, “We ain’t done [talking]”; the record

contains neither verbal nor written indication from T.D.S. that he consented to

proceeding without an attorney or that he wished to keep speaking to the detectives

rather than remain silent; and the detectives made threats of life imprisonment to

the 15-year-old T.D.S., whom they outnumbered three to one, to keep him talking.

{¶ 52} Again, these circumstances are troubling, and unfortunately, the

majority did not resist the temptation to find that this type of interrogation process

resulting in a confession was acceptable under the law and in accord with the United

States Constitution. After all, T.D.S. had confessed, hadn’t he?

{¶ 53} But it’s not that simple. And that’s not what we need to determine

here. The appropriate question is: Were T.D.S.’s rights adequately protected? The

Eighth District Court of Appeals and a majority of this court say yes. I respectfully

disagree.

{¶ 54} The facts in this case do not support the Eighth District’s or the

majority’s conclusions. There has not been enough scrutiny in the majority opinion

of the weaknesses of the Miranda process employed by law-enforcement personnel

in this case. That defense counsel sought to have T.D.S.’s confessions suppressed

but perhaps did not use specific legal terminology in doing so is not a basis for

ignoring the truth that the Miranda process did not pass constitutional muster and

that T.D.S. did not waive his rights. T.D.S.’s pre-Miranda-warnings confession

should have been, and was rightly, suppressed. But his post-Miranda-warnings

confessions also should have been suppressed. Thus, I respectfully dissent. I would

reverse the Eighth District’s judgment and remand T.D.S.’s case to the juvenile

court for further proceedings, with instructions that T.D.S.’s confessions and any

evidentiary fruit of them are constitutionally infirm and cannot be used to

adjudicate him delinquent for committing the offenses with which he is charged.

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II. FACTS AND PROCEDURAL HISTORY

{¶ 55} On September 4, 2019, 15-year-old T.D.S. was arraigned in the

juvenile division of the Cuyahoga County Court of Common Pleas on a complaint

charging him with murder with firearm specifications, felony murder with firearm

specifications, two counts of felonious assault with firearm specifications,

tampering with evidence, and having weapons while under a disability. In

accordance with R.C. 2152.13, he was subsequently indicted for felony murder with

firearm and serious-youthful-offender (“SYO”) specifications, two counts of

felonious assault with firearm and SYO specifications, tampering with evidence,

and having weapons while under a disability. The juvenile court found that T.D.S.

was amenable to rehabilitation in the juvenile system and declined to bind him over

to adult court. During the amenability hearing and again during a competency

hearing, the juvenile court heard testimony that T.D.S.’s “full-scale IQ” was 60.

{¶ 56} As the case proceeded in juvenile court, T.D.S. filed a motion to

suppress the statements he had made to the police, arguing in part that he had not

been given the warnings required by Miranda, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694, and that, therefore, his statements were inadmissible. The motion

also requested the suppression of “subsequent statements and identification as the

fruit of such tainted evidence.” During a hearing on the motion, a Cleveland police

detective testified that he and two other detectives had gone to T.D.S.’s house to

question him. They were admitted to the house by T.D.S.’s mother. The detectives

did not tell her why they wanted to speak to her son and did not offer her time to

discuss the matter with him first. The three detectives then questioned T.D.S.

without first reading him the warnings required by Miranda. During the hearing,

the detective took the position that T.D.S. was not in custody during that round of

questioning, that at that time he and his colleagues did not have evidence sufficient

for probable cause to arrest T.D.S., and that the questioning was not a custodial

interrogation. Nevertheless, the detective admitted lying to T.D.S. in an attempt to

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provoke an emotional response from him, telling T.D.S. that he would spend the

rest of his life in prison if he did not tell the detectives what happened, and

attempting to sway him to admit that he had shot the victim by accident as a way to

get T.D.S. to admit guilt. While the audio portion of video of the interrogation is

faint, it is clear enough to be able to discern that the detective’s testimony about his

questioning of T.D.S. considerably understates the deceptive and adversarial nature

of the interrogation.

{¶ 57} The video of the interrogation reflects that the detectives questioning

T.D.S. repeatedly indicated to him that they already had strong evidence of his guilt

in the form of witnesses, video of T.D.S. at or near the crime scene, gunshot residue,

and DNA on the victim and at the murder scene. These assertions were untrue; as

admitted by the detective in his testimony at trial, the detectives went to T.D.S.’s

house to question him, primarily going on information from a school administrator

about T.D.S. The detectives repeatedly and falsely indicated to T.D.S. that they

knew that he had caused the death of the victim and that they were just trying to

figure out if the killing was a murder or an accident. They repeatedly threatened

him with adult penalties, including life in prison. Contrary to the detective’s

testimony at the suppression hearing that he lacked probable cause when he arrived

at T.D.S.’s home to question him, he repeatedly told T.D.S. that he and the other

detectives already had sufficient evidence to arrest and even to convict T.D.S. The

detective rejected every attempt by T.D.S. to deny his involvement in the victim’s

death. At one point, he touched T.D.S. on the chest, felt his heart, and indicated to

the low-IQ 15-year-old that his fast pulse showed that he was lying. The detective

asserted that negative assumptions would be drawn from T.D.S.’s silence, and he

even made sniffing gestures before saying, “Smell that? Smells like some bullshit.”

The detective also switched tactics throughout the questioning, repeatedly and

falsely telling T.D.S. that he was there to help him and that T.D.S. had only this

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one opportunity to help himself by telling the truth—even indicating that his mother

would no longer support him if he did not tell the truth.

{¶ 58} After an hour of denying involvement and then changing his

statements to conform to the evidence that the police claimed to have, T.D.S.

admitted that he had accidentally shot the victim while playing with a gun. Just

after he confessed, he asked to see his mother, and when she subsequently came

into the room, he fell into her arms, sobbing.3 He then agreed to show the police

where he had disposed of the gun. He denied that he had had any intention to hurt

the victim. His mother was not present for his actual confession, having left him

alone in the room with the three detectives approximately 36 minutes after the

questioning began. However, even when T.D.S.’s mother was present, she

exhorted T.D.S. to tell the police the truth. Only after T.D.S’s first confession did

the detective leading the questioning finally administer the required Miranda

warnings, but he prefaced them with the following statement: “Listen, I gotta read

you your rights, OK. But we’re still gonna talk. We ain’t done.” The detective

then followed up the warnings by asking again to be shown where the gun had been

discarded, telling T.D.S. that it was “in the spirit of [his] continu[ing] cooperation.”

The detective did not provide written warnings or ask for or obtain from T.D.S. any

oral or written waiver of his constitutional rights.

{¶ 59} After this interview, T.D.S. was transported to the field where he had

supposedly discarded the gun, but a two-hour search involving a K-9 unit and a

backhoe failed to uncover the weapon. T.D.S. was also taken to the crime scene,

where he gave an additional confession of how he had accidentally shot the victim.

He then provided a further confession at the police station. It is undisputed that the

3. Immediately after making his pre-Miranda-warnings confession, T.D.S. asked if he could talk to

his mother. He was told that he could, but when he started to stand up to go to her, a detective

prevented him from leaving the room. At that point, his mother reentered the room and sat with

him.

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only Miranda warnings given were those given by the detective after an hour of

questioning T.D.S. at his home and after he already confessed in response to

questioning that had been initiated primarily because of information received from

a school administrator.

{¶ 60} The juvenile court suppressed “the statements of the child up to the

point where he was given his Miranda warning and advisement of rights.” The

juvenile court, having heard the testimony at the suppression hearing, held that the

interview at T.D.S.’s home was “an interrogation, complete with police

interviewing techniques, emotional pleas, superficial promises, and finally, a

characterization of the possible consequences of his failure to tell them the truth

[being] life in prison.” The juvenile court adjudged, based on the evidence it

considered at the suppression hearing, that T.D.S. did not know or have “reasonable

cause to believe that he could terminate the interview or leave.” The juvenile court

noted that the interrogation took place in T.D.S.’s home, that his mother had not

challenged the accusatory nature of it, and that on video, T.D.S. “did not present as

being able to leave,” and thus found that T.D.S. had been “detained in the custody

of the officers in his home.”

{¶ 61} The juvenile court’s ruling did not plainly or separately address the

suppression of the post-Miranda statements. However, at the outset of trial, the

juvenile court made clear that despite the defense’s broad suppression request, only

the pre-Miranda statements were suppressed and that all other statements and

evidence were unaffected by the suppression ruling. During the trial, when the

prosecutor sought to introduce T.D.S.’s post-Miranda-warnings statements,

defense counsel objected and again explained that that evidence was contaminated

by the pre-Miranda confession and that any waiver of Miranda rights that the state

argues T.D.S. made was invalid. However, the juvenile court declined to change

its ruling.

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{¶ 62} Ultimately, no witnesses to the shooting or physical evidence

connecting T.D.S. with the offenses was produced at trial and the evidence used to

prove his delinquency was primarily T.D.S.’s post-Miranda confessions, which

were played and testified to at trial. The juvenile court found T.D.S. delinquent for

having committed all five counts charged, based almost entirely on his confessions.

The juvenile court then committed T.D.S. to the legal custody of the Ohio

Department of Youth Services until his 21st birthday and also imposed an SYO

sentence of 18 years to life, which it stayed on the condition that T.D.S. successfully

complete the juvenile portion of his sentence.

{¶ 63} On appeal, the Eighth District affirmed the juvenile court’s

judgment. 2022-Ohio-525. One of the issues challenged on appeal was whether

the juvenile court erred in refusing to suppress the post-Miranda statements. Id. at

¶ 18-19. In its decision, the appellate court did not apply the existing question-first-

warn-later caselaw in analyzing the juvenile court’s failure to suppress T.D.S.’s

post-Miranda confessions. Instead, the appellate court examined whether,

notwithstanding the Miranda warnings, T.D.S.’s will was overborne by the police

interrogation. Id. at ¶ 19-20. It distinguished his case from others and found that

T.D.S.’s post-Miranda confessions had been properly admitted. Id. The Eighth

District also found that the detectives’ questioning had not been coercive, even

though it simultaneously recognized that the use of deceit and psychological

techniques and the exertion of improper influences or direct or implied promises

are coercive law-enforcement tactics under the law. Id. at ¶ 20.

III. ANALYSIS

{¶ 64} Caselaw instructs that when reviewing a decision on a motion to

suppress, the reviewing court must afford deference to the trial court’s factual

determinations, but it must not afford deference to the trial court’s legal

determinations (questions of law call for the application of the law to the facts de

novo). See, e.g., Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134

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L.Ed.2d 911 (1996); In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d

629, ¶ 50; State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8.

{¶ 65} Generally speaking, regarding the rights of a suspect during an

interrogation, this court has stated:

The Fifth and Fourteenth Amendments require that a person

be notified of his or her right to remain silent and the right to the

presence of an attorney prior to a custodial interrogation. Miranda

v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966). “Where a suspect speaks freely to police after

acknowledging that he understands his rights, a court may infer that

the suspect implicitly waived his rights.” (Emphasis sic.) State v.

Murphy, 91 Ohio St.3d 516, 519, 747 N.E.2d 765 (2001). “The

determination of whether there has been an intelligent waiver of

[the] right to counsel must depend, in each case, upon the particular

facts and circumstances surrounding that case, including the

background, experience, and conduct of the accused.” Johnson v.

Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

(Emphasis added and brackets sic.) State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-

8076, 75 N.E.3d 1185, ¶ 35. Due process also protects juveniles, and Miranda

warnings must be given to juveniles. Application of Gault, 387 U.S. 1, 55, 87 S.Ct.

1428, 18 L.Ed.2d 527 (1967).

{¶ 66} The requirement that a suspect be given Miranda warnings is

triggered when the suspect is “in custody.” J.D.B. v. North Carolina, 564 U.S. 261,

269-270, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011). Determining whether a person

was “in custody” during an interrogation involves determining whether under the

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circumstances of the interrogation a “ ‘reasonable person [would] have felt he or

she was not at liberty to terminate the interrogation and leave.’ ” (Brackets sic.)

Howes v. Fields, 565 U.S. 499, 509, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012),

quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383

(1995). The United States Supreme Court has also recognized that when

determining whether a juvenile was in custody during an interrogation, his or her

age is an important consideration because “a reasonable child subjected to police

questioning will sometimes feel pressured to submit when a reasonable adult would

feel free to go.” J.D.B. at 272.

{¶ 67} In T.D.S.’s case, he was 15 years old, was already on juvenile

probation, and was confronted in his home by three detectives who were much

larger than he was and who informed him from the beginning and repeatedly

thereafter that he “need[ed]” to talk to them and was required to tell the truth. His

mother was present for part of the interrogation,4 but she instructed her son against

the exercise of his unwarned rights to remain silent and to speak to an attorney,

ordering T.D.S. to talk to the police and tell them what he knew. It is abundantly

clear that a reasonable person of T.D.S.’s age would not have felt free to terminate

the interrogation and leave, and as the juvenile court concluded, T.D.S.’s

confession occurred while his constitutional rights were being violated. The

juvenile court stated that it could not conclude that “the child knew or had

reasonable cause to believe that he could terminate the interview or leave” and that

despite the detective’s statement that T.D.S was a smart kid, “this

acknowledgement did not translate to his ability to know or act upon ‘his rights’ at

or during the interview.” See Haley v. Ohio, 332 U.S. 596, 599, 68 S.Ct. 302, 92

L.Ed. 224 (1948) (plurality opinion) (“[W]hen, as here, a mere child—an easy

4. The court of appeals stated, contrary to video footage that shows otherwise, that “T.D.S.’s mother

was present during the entire interview,” 2022-Ohio-525, ¶ 20.

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victim of the law—is before us, special care in scrutinizing the record must be used.

Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by

the more exacting standards of maturity. That which would leave a man cold and

unimpressed can overawe and overwhelm a lad in his early teens”). Thus, Miranda

warnings were required.

{¶ 68} And not only were Miranda warnings required: the timing of the

warnings mattered. Warnings given after a confession are ineffective. Both this

court and the United States Supreme Court have explicitly denounced the question-

first-warn-later tactic that was used in this case. State v. Farris, 109 Ohio St.3d

519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 19-36; Missouri v. Seibert, 542 U.S. 600,

617, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (plurality opinion) and id. at 618

(Kennedy, J., concurring in judgment only). In Seibert, four justices of the United

States Supreme Court joined an opinion that states:

[T]he reason that question-first is catching on is as obvious as its

manifest purpose, which is to get a confession the suspect would not

make if he understood his rights at the outset; the sensible

underlying assumption is that with one confession in hand before

the warnings, the interrogator can count on getting its duplicate, with

trifling additional trouble. Upon hearing warnings only in the

aftermath of interrogation and just after making a confession, a

suspect would hardly think he had a genuine right to remain silent,

let alone persist in so believing once the police began to lead him

over the same ground again. A more likely reaction on a suspect’s

part would be perplexity about the reason for discussing rights at

that point, bewilderment being an unpromising frame of mind for

knowledgeable decision. What is worse, telling a suspect that

“anything you say can and will be used against you,” without

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expressly excepting the statement just given, could lead to an

entirely reasonable inference that what he has just said will be used,

with subsequent silence being of no avail.

(Footnote omitted.) Id. at 613 (plurality opinion). Moreover, this court has held

that the Ohio Constitution provides more protection than the United States

Constitution in these situations—all evidence recovered as fruit of unwarned

confessions is to be excluded in Ohio:

[E]vidence obtained as the direct result of statements made in

custody without the benefit of a Miranda warning should be

excluded. We believe that to hold otherwise would encourage law-

enforcement officers to withhold Miranda warnings and would thus

weaken Section 10, Article I of the Ohio Constitution. In cases like

this one, where possession is the basis for the crime and physical

evidence is the keystone of the case, warning suspects of their rights

can hinder the gathering of evidence. When physical evidence is

central to a conviction and testimonial evidence is not, there can

arise a virtual incentive to flout Miranda. We believe that the

overall administration of justice in Ohio requires a law-enforcement

environment in which evidence is gathered in conjunction with

Miranda, not in defiance of it. We thus join the other states that

have already determined after Patane[5] that their state constitutions’

protections against self-incrimination extend to physical evidence

seized as a result of pre-Miranda statements. State v. Knapp (2005),

5. We noted in Farris that in United States v. Patane, 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d

667 (2004), the United States Supreme Court concluded that “the Miranda rule protects against

violations of the Fifth Amendment’s Self-Incrimination Clause, but does not apply to nontestimonial

physical evidence.” Farris at ¶ 37.

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2005 WI 127, 285 Wis.2d 86, 700 N.W.2d 899; Commonwealth v.

Martin (2005), 444 Mass. 213, 827 N.E.2d 198. Thus, the physical

evidence obtained as a result of the unwarned statements made by

Farris in this case is inadmissible pursuant to Section 10, Article I

of the Ohio Constitution.

Farris at ¶ 49.

{¶ 69} In this case, a psychologically coercive custodial interrogation took

place for more than an hour before the Miranda warnings were administered. The

detectives questioning T.D.S., a 15-year-old with an IQ of 60 and little previous

criminal-justice experience, repeatedly lied and told T.D.S. about evidence they had

of his guilt, repeatedly insisted that they knew he was guilty, repeatedly threatened

him with life in prison, rejected every attempt by T.D.S. to deny involvement,

intentionally manipulated his emotions, suggested that the victim’s death may have

been accidental as a ploy to obtain a confession, and repeatedly and falsely

promised to help him. After T.D.S.’s repeated denial of involvement, he finally

confessed to accidentally shooting the victim and agreed to show the police where

he had disposed of the gun. And only after this confession did a detective give the

Miranda warnings, but he prefaced the warnings with the statement, in

contradiction of the rights to silence and to an attorney, “Listen, I gotta read you

your rights, OK. But we’re still gonna talk. We ain’t done.” He then followed up

the warnings by asking again to be shown where the gun had been discarded, “in

the spirit of [T.D.S.’s] continu[ing] cooperation.” He did not provide written

warnings or ask for or obtain any sort of waiver, oral or written. The detectives

then obtained repeated confessions at two different locations without administering

any further Miranda warnings.

{¶ 70} Because, as Justice Kennedy stated in his opinion in Seibert,

“Miranda’s clarity is one of its strengths,” Seibert at 622 (Kennedy, J., concurring

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in judgment only), and because (1) only one set of Miranda warnings was

administered, (2) the warnings were given after T.D.S. confessed, (3) the warnings

were given only verbally, not in writing, and (4) there is no evidence that the 15-

year-old T.D.S. waived his Miranda rights, both Seibert and Farris support

suppressing T.D.S.’s post-Miranda statements. The concurring opinion in Seibert

applied a narrower test than the plurality opinion—one that is applicable “only in

the infrequent case * * * in which the two-step interrogation technique was used in

a calculated way to undermine the Miranda warning.” Seibert at 622 (Kennedy, J.,

concurring in judgment only). Based on the evidence and the admonishment from

the detective questioning T.D.S.—“Listen, I gotta read you your rights, OK. But

we’re still gonna talk. We ain’t done”—I would find the detective’s technique,

even under the narrower test used by Justice Kennedy (whose concurrence in the

judgment in Seibert provided the crucial fifth vote), violative of Miranda.

{¶ 71} The majority opinion posits that T.D.S. “did not preserve the issue

for our consideration, he did not provide an adequate record for us to review his

claim, and he stretches our reasoning in Farris too far.” Majority opinion, ¶ 16.

The majority opinion states that “T.D.S. never raised [the question-first-warn-later]

argument in either the juvenile court or in his merit brief in the court of appeals, so

it is forfeited.” Id. at ¶ 33. I do not agree with these conclusions.

{¶ 72} T.D.S. filed a motion to suppress the statements that he made to the

police on the grounds that he had not been read the Miranda warnings and his

statements were not voluntary. The motion also requested the suppression of

“subsequent statements and identification as the fruit of such tainted evidence.”

The juvenile court granted that motion “in pertinent part.” Then, at the outset of

trial, the juvenile court made clear that despite defense counsel’s broad suppression

request, the suppression ruling applied only to the pre-Miranda statements and that

all other statements and evidence were unaffected by the ruling. Defense counsel

objected, stating:

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Your Honor, I did in my Motion to Suppress, at the end of

my motion I do ask that the Court suppress any and all purported

statements obtained in contravention of the legal rights as well as

the subsequent statements and identification as the fruit of such

tainted evidence.

So I am asserting that any subsequent statements that he

made at the police station or anywhere to the police were fruit of the

poisonous tree.

Moreover, when the prosecutor sought to introduce the post-Miranda statements

made by T.D.S., T.D.S.’s counsel objected and again explained that T.D.S’s post-

Miranda statements were contaminated by the pre-Miranda confession and that any

waiver of Miranda rights that T.D.S. may have made was invalid.

{¶ 73} Contrary to the majority’s assertion, T.D.S. also raised these issues

on appeal. For example, in his brief to the Eighth District, he noted that the juvenile

court had suppressed the pre-Miranda statements, but he argued that it should also

have suppressed the post-Miranda statements:

T.D.S. was interviewed in four different locations on

September 3, 2019. First, he was interviewed in his home. After he

was interviewed for over an hour, he was Mirandized, then arrested

and taken to a field on Corlett Avenue where he was questioned.

Then, he was interviewed at the crime scene—an abandoned house

on Gay Street. Finally, still under arrest, he was taken to the police

station and interrogated.

T.D.S. was in custody for all of these interviews—the

juvenile court found as much during its analysis of the motion to

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suppress. And, the juvenile court suppressed all the statements that

T.D.S. made to the police before the Miranda warnings were given,

finding them to be the product of police coercion. But, the court did

not undergo any analysis on whether the statements T.D.S. made

after the Miranda warnings were voluntary. When T.D.S. received

his one and only Miranda warnings about an hour into a 6-hour long

interview, the slate was not wiped clean. The vulnerabilities that

existed within T.D.S. still existed after Detective Aaron Reese

recited the warnings, without catering to T.D.S.’s abilities or

checking for understanding. And, rather than “curing” the interview

of its coerciveness, the warnings served as another tool in a wide

array of psychological tactics that the police used against T.D.S. that

day.

(Record citations omitted.) Later in the same section of his appellate brief, T.D.S.

argued: “The Miranda warnings were not given again before T.D.S. was asked to

give another statement.” And this argument was made within the context of a

discussion concerning the juvenile court’s suppression of T.D.S.’s pre-Miranda

statements—leaving the post-Miranda statements as the only statements that T.D.S.

could have been challenging on appeal.

{¶ 74} And T.D.S.’s reply brief before the Eighth District leaves no doubt:

T.D.S. argues that the juvenile court got it right in

suppressing his statements pre-Miranda. And, [the] essence of this

assignment [of error] is that the suppression should have extended

to the post-Miranda statements because the factors the juvenile

court relied on in granting the motion continued to exist—and even

got worse—after the warnings were given. These factors prevented

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T.D.S. from validly waiving his rights. Further, the suppression of

the post-Miranda statements is required under the Ohio Supreme

Court’s decision in State v. Farris. State v. Farris, 109 Ohio St.3d

519, 2006-Ohio-3255, 849 N.E.2d 985, ¶ 17-20. The essential facts

were almost identical to the situation here: Mr. Farris was

interrogated by the police with no Miranda warnings when he gave

incriminating statements, then Miranda warnings were given and

Mr. Farris gave the exact same statements again. Id. at ¶ 1-5. The

court reasoned:

“The overarching concern when considering the sufficiency

of a Miranda warning is whether it is given in a manner that

effectuates its purpose of reasonably informing a defendant of his

rights. The words themselves are not magical and are not curative

of interrogation mistakes that occur before it is given:

“ ‘Just as “no talismanic incantation [is] required to satisfy

[Miranda’s] strictures,” California v. Prysock, 453 U.S. 355, 359,

101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (per curiam), it would be

absurd to think that the mere recitation of the litany suffices to

satisfy Miranda in every conceivable circumstance. “The inquiry is

simply whether the warnings reasonably ‘conve[y] to [a suspect] his

rights as required by Miranda.’ ” Duckworth v. Eagan, 492 U.S.

195, 203, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989) (quoting

California v. Prysock, 453 U.S. 355, 361, 101 S.Ct. 2806, 69

L.Ed.2d 696 (1981)).’ Missouri v. Seibert, 542 U.S. 600, 611, 124

S.Ct. 2601, 159 L.Ed.2d 643 (2004).

“In a question-first scenario in which the Miranda warning

is withheld and the suspect makes inculpatory statements, the risk is

that the warning will mean less when it is eventually recited:

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“ ‘The threshold issue when interrogators question first and

warn later is thus whether it would be reasonable to find that in these

circumstances the warnings could function “effectively” as Miranda

requires. Could the warnings effectively advise the suspect that he

had a real choice about giving an admissible statement at that

juncture? Could they reasonably convey that he could choose to

stop talking even if he had talked earlier? For unless the warnings

could place a suspect who has just been interrogated in a position to

make such an informed choice, there is no practical justification for

accepting the formal warnings as compliance with Miranda, or for

treating the second stage of interrogation as distinct from the first,

unwarned and inadmissible segment.’ Seibert, 542 U.S. at 611-612,

124 S.Ct. 2601, 159 L.Ed.2d 643.” [Farris] at ¶ 17-20.

Here, the warnings did not function effectively. The one and

only recitation of T.D.S.’s Miranda warnings were just a few

seconds out of a continuous interview that was more than six hours

long. The warnings were delivered by a police officer who had just

threatened T.D.S. with life in prison. They were given to a 15-year-

old who had documented intellectual deficits. They were quietly

and rotely recited to a child who was actively sobbing into his

[mother’s] arms, who was not looking at the person delivering them

or nodding along in acknowledgement or understanding. The

officer did not tell T.D.S. that he could stop talking, even though he

had previously talked. Then, contrary to the state’s assertion, T.D.S.

did not “agree to accompany” the police to the field, he was arrested

and taken there in handcuffs. As such, this Court must find that the

juvenile court erred in denying the motion to suppress in part.

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(Emphasis sic; second and third set of brackets added in Seibert; fourth and fifth

set of brackets added in Duckworth.)

{¶ 75} Even if T.D.S. was not as artful as the majority would have liked him

to be in preserving the question-first-warn-later issue, a fair review of the record

tells the truth of the matter—he did not forfeit the issue in either the juvenile court

or the court of appeals. And because the juvenile court suppressed the pre-Miranda

statements, the only statements T.D.S. could have been challenging in the juvenile

court and on appeal were his post-Miranda statements. Based on both federal and

state caselaw, the question-first-warn-later issue is dispositive and cannot be

ignored or discarded.

{¶ 76} Even the state recognizes that the substance of the question-first-

warn-later issue needs to be addressed in this case. It asserts in its brief to this court

that the United States Supreme Court’s caselaw on this point is not clear. In Oregon

v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the court declined

to suppress a post-Miranda confession that followed a prewarning admission. But

the facts in Elstad are notably different from those in Seibert, Farris, and the case

at bar. In Farris, we described Elstad’s facts as follows:

In Elstad, police officers went to the home of the 18-year-

old defendant with a warrant for his arrest. While one officer went

to the kitchen to explain to the suspect’s mother that her son was

being arrested for the burglary of a neighbor’s residence, another

officer stayed with Elstad in the living room and had a brief

discussion with him. The officer explained that the neighbor’s

house had been robbed and that he thought Elstad was involved.

Elstad stated to the officer, “Yes, I was there.” Elstad, 470 U.S. at

301, 105 S.Ct. 1285, 84 L.Ed.2d 222.

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The officers then transported Elstad to the sheriff’s

department, and about one hour later, interviewed him in the office

of one of the officers. One officer advised Elstad for the first time

of his Miranda rights, reading from a standard card, without

mentioning Elstad’s previous statement. Elstad waived his rights

and then made a full, detailed statement, explaining that he had

known that the neighbors would be out of town and that he had been

paid to help several people gain entry through a defective sliding

glass door.

Farris, 109 Ohio St.3d 519, 2006-Ohio-3255, 849 N.E.2d 985, at ¶ 23-24. The full

extent of the pre-Miranda interaction at issue in Elstad was described by the officer

as follows:

“I sat down with Mr. Elstad and I asked him if he was aware

of why Detective McAllister and myself were there to talk with him.

He stated no, he had no idea why we were there. I then asked him

if he knew a person by the name of Gross, and he said yes, he did,

and also added that he heard that there was a robbery at the Gross

house. And at that point I told Mr. Elstad that I felt he was involved

in that, and he looked at me and stated, ‘Yes, I was there.’ ”

Elstad at 301. The pre-Miranda conversation at issue in Elstad was brief, and

Elstad’s confession was essentially spontaneous. In contrast, for T.D.S., the pre-

Miranda confession occurred after an hour-plus-long psychologically coercive

interrogation that reduced the accused child to a sobbing heap. Clearly, the cases

are factually distinguishable from each other.

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{¶ 77} Even when Miranda warnings are not required or are validly waived,

a confession is not admissible unless it is voluntary. Dickerson v. United States,

530 U.S. 428, 444, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). The burden of

establishing the voluntariness of a confession is on the state, State v. Dixon, 101

Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 25, and in the case of a

juvenile, “ ‘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. Barker, 149 Ohio St.3d 1, 2016-Ohio-2708, 73 N.E.3d 365,

¶ 41, quoting Gault, 387 U.S. at 55, 87 S.Ct. 1428, 18 L.Ed.2d 527. Regarding

juvenile confessions, we have explained:

In deciding whether a juvenile’s confession is involuntarily

induced, the court should consider the totality of the circumstances,

including the age, mentality and prior criminal experience of the

accused; the length, intensity, and frequency of interrogation; and

the existence of physical deprivation or inducement.

In re Watson, 47 Ohio St.3d 86, 548 N.E.2d 210 (1989), paragraph one of the

syllabus. Several appellate courts, including the Eighth District in this case, have

set forth which tactics by law-enforcement personnel are coercive, especially when

they are used on juvenile suspects; these tactics include, but are not limited to,

“ ‘ “physical abuse, threats, deprivation of food, medical treatment or sleep, use of

certain psychological techniques, exertion of improper influences or direct or

implied promises, and deceit.” ’ ” (Emphasis added.) 2022-Ohio-525 at ¶ 20,

quoting In re M.J.C., 12th Dist. Butler No. CA2014-05-124, 2015-Ohio-820, ¶ 18,

quoting In re N.J.M., 12th Dist. Warren No. CA2010-03-026, 2010-Ohio-5526,

¶ 20; In re D.F., 2015-Ohio-2922, 38 N.E.3d 1202, ¶ 12 (10th Dist.), quoting N.J.M.

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at ¶ 20, which cited State v. Getsy, 84 Ohio St.3d 180, 189, 702 N.E.2d 866 (1998).

And the United States Supreme Court has stated:

By its very nature, custodial police interrogation entails

“inherently compelling pressures.” Miranda, 384 U.S., at 467, 86

S. Ct. 1602[, 16 L.Ed.2d 694]. Even for an adult, the physical and

psychological isolation of custodial interrogation can “undermine

the individual’s will to resist and * * * compel him to speak where

he would not otherwise do so freely.” Ibid. Indeed, the pressure of

custodial interrogation is so immense that it “can induce a

frighteningly high percentage of people to confess to crimes they

never committed.” Corley v. United States, 556 U.S. 303, 321, 129

S.Ct. 1558, 1570, 173 L.Ed.2d 443, 458 (2009) (citing Drizin & Leo,

The Problem of False Confessions in the Post-DNA World, 82

N.C.L.Rev. 891, 906-907 (2004)); see also Miranda, 384 U.S., at

455, n. 23, 86 S.Ct. 1602[, 16 L.Ed.2d 694]. That risk is all the more

troubling—and recent studies suggest, all the more acute—when the

subject of custodial interrogation is a juvenile. See Brief for Center

on Wrongful Convictions of Youth et al. as Amici Curiae 21-22

(collecting empirical studies that “illustrate the heightened risk of

false confessions from youth”).

(Ellipsis sic.) J.D.B., 564 U.S. at 269, 131 S.Ct. 2394, 180 L.Ed.2d 310.

{¶ 78} Given (1) T.D.S.’s low IQ, (2) his youth, (3) the psychologically

coercive nature of the interrogation, and (4) the fact that the police never found the

gun where T.D.S. said that he had discarded it, the possibility that this coerced

confession was also a false confession cannot be ignored. There was little evidence

presented at trial to corroborate T.D.S.’s confessions. Some testimony established

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that the victim’s life was under threat from an adult referred to as “Vaughn” from

whom the victim had allegedly stolen a gun. There was also testimony that before

the homicide, T.D.S. was overheard telling the victim that “Vaughn” had offered

T.D.S. $1,000 to kill the victim but T.D.S. then reassured the victim that he would

not do it. Though the state suggests that that testimony shows a motive for murder,

the testimony actually cuts both ways because it also is evidence that there was at

least one gun-owning adult who was interested in causing the victim’s death.

Additionally, other testimony at trial, including from the victim’s family,

established that T.D.S. and the victim were friends.

IV. CONCLUSION

{¶ 79} T.D.S. was subjected to a psychologically coercive custodial

interrogation for over an hour before he yielded to pressure and confessed. The

coercive tactics used by the interrogating detective included offering to help T.D.S.

and suggesting that T.D.S. may have accidentally killed the victim. Only after

confessing under this pressure was T.D.S. administered Miranda warnings, but

along with the Miranda warnings, he was told by the detective that his rights to

remain silent and to consult an attorney—the indisputable rights of Miranda—were

not unconditional and that his assertion of those rights would not terminate the

interrogation: “Listen, I gotta read you your rights, OK. But we’re still gonna talk.

We ain’t done.” T.D.S. then was led to confess twice more without receiving

renewed warnings and without an understanding that his prior confession could not

be used against him. These circumstances should give any court pause. T.D.S. was

15 years old. He was also a child who was psychologically and mentally vulnerable

with a low IQ. Inescapably, the methods used by the detectives in this case to elicit

T.D.S.’s first and subsequent confessions were unconstitutional. And the

objections made by his counsel regarding both the pre-Miranda and post-Miranda

statements were made with sufficient clarity and were not forfeited. T.D.S.’s

confessions, the key evidence used to adjudicate him delinquent, were

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unconstitutionally obtained and must be excluded under Farris. To suggest that

this issue was not preserved is absurd in light of the record before us. The post-

Miranda statements should have been excluded as unconstitutional fruits of the pre-

Miranda custodial interrogation and confession. Because the majority opinion

endorses an interrogation that flouts precedent, I dissent.

STEWART, J., concurs in the foregoing opinion.

_________________

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen

Hatcher, Assistant Prosecuting Attorney, for appellee.

Elizabeth R. Miller, Ohio Public Defender, and Lauren Hammersmith,

Assistant Public Defender, for appellant.

_________________

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