IN THE SUPREME COURT OF OHIO

STATE OF OHIO

APPELLEE On Appeal from the Preble Court of Appeals, VS. . Twelfth District Court of Appeals

RICKY L. BAKER . Court of Appeals Case No.: CA2007-04-009 APPELLANT

MEMORANDUM IN SUPPORT OF JURISDICTION OF APPELLANT RICKY L. BAKER

James W. Thomas, JR. (0074051) (Counsel of Record) The Thomas Law Office 112 N. Barron St. Eaton, OH 45320 (937) 456-4103 Fax No. (937) 456-2960 ithomaslaw@yg,hoo.com

COUNSEL FOR APPELLANT, RICKY L. BAKER

Martin P. Votel: Preble County Prosecuting Attomey James P. Vanzant: Assistant Prosecuting Attorney 101 E. Main St. First Floor Preble County Courthouse Eaton, OH 45320 (937) 456-8156 F t,^D COUNSEL FOR APPELLEE, STATE OF OHIO Jl1N () ;; 'l.10("is°;

CLkRKOFCOURT SUPREME COURT OF OHIO

1

THH THOMAS LAW OFFICE 112 NORTH HARP.ON STHHHT HATON. OHIO 4532u (B37)-45e-4100 TABLE OF CONTENTS

EXPLANATION OF WHY THIS CASE INVOLVES A FELONY OFFENSE THAT SHOULD BE DECIDED ON THE MERITS AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION OF LAW ...... 2

STATEMENT OF THE CASE AND FACTS ...... 5

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ...... 7

Sole Proposition of Law.: For purposes of determining whether or Not a defendant is in custody and should be advised of his or her Miranda rights prior to being questioned by law enforcement Personnel the Trial Courts and Appellate Courts should be Required to apply the following two prong test: (1) Is the person being questioned by law enforcement personnel the main suspect in a criminal investigation in which the person could lawfully be placed under foimal arrest prior to the commencement of any questioning? (or); (2) With the exception of routine traffic stops, is the person being questioned physically able to walk away from the interview without the assistance of law enforcement personnel?...... 7

CONCLUSION ...... 12

CERTIFICATE OF SERVICE ...... 13

APPENDIX

Opinion and Judgment of Preble Coutity Court of Appeals (Apri1215(, 2008) ......

i THH THOMAS LAW OPPIOH 112 NOHTH HAKBON STREET RAi'ON, OH10 nsO23 (eOV) a6e•a1o3 EXPLANATION OF WHY THIS CASE INVOLVES A FELONY OFFENSE THAT SHOULD BE DECIDED ON THE MERITS AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION OF LAW

This case is one of great importance involving a head on collision between the preservation of an individuals Fifth Amendment right against self-incrimination and the ever increasing latitude afforded law enforceinent personnel in conducting criminal investigations. At some point the number of exceptions and loopholes allowing law enforcement personnel to conduct criminal interviews of suspects without having to advise a suspect of his or her Miranda rights must be curtailed. There has to be some type of uniformity in the law as to when and when not individuals being questioned by law enforcement personnel are to be advised of their Miranda Rights. Under the current law both the Courts and law enforcement personnel are being afforded too much discretion in making this determination. A great example of why there needs to be more structure and uniformity in determining when a suspect is in custody for purposes of

Miranda involves the case at bar.

The result reached by the Twelfth District Court of Appeals in the case at bar essentially requires a formal arrest of a criminal suspect prior to that suspect being advised of his or her right to remain silent, his or her right to seek the independent advice of an attomey prior to answering any questions, his or her right to have an attorney appointed if he or she cannot afford an attorney, and most importantly being advised of the fact that anything said in response to an interrogation can be used against him or her at a trial. Miranda v. Arizona (1966), 384 U.S. 436, 478-79, 86 S.Ct. 1602. At issue in

2 THE THOMA-S LAW OFFIGE 112 NORTH BARRON STREET RATON, OHIO ae320 (e37) h59-a1O3 the case at bar is the law and legal analysis to be used to define those situations in which a suspect is in "custody" for purposes of requiring law enforcement personnel to advise that suspect of his or her Miranda rights.

Under the current law, custody for purposes of applying Miranda requires that a reasonable objective person in the Defendant's position would not have felt free to go.

Berkemer v. McCarty (1984), 468 U.S. 420, 442, 104 S.Ct. 3138 This necessitates a fact driven analysis by the Court in which great latitude is afforded in determining whether or not given the facts of a specific case the so-called "reasonable objective person" would have felt free to go. The problem with this arialysis is that it results in differing opinions and decisions amongst the trial courts and the various courts of appeals across the state of

Ohio. One court may determine based upon a given set of facts and circumstances that a suspect is in custody for purposes of applying Miranda and a different Court in a different district given the same set of facts might determine that the suspect was not in custody for purposes of applying the rule laid out in the case of Miranda. There needs to be some type of uniform rule of law or test that can be applied by the Courts in deciding whether

or not a reasonable objective person in a suspect's position would have felt free to go. It

is time for the Supreme Court of Ohio to establish a rule of law or test to provide the

lower courts throughout the State of Ohio with some guidance in determining when a

criminal suspect is in custody for purposes of applying Miranda.

The case at bar is very important because it exemplifies a situation in which the

Court of Appeals could have used some guidance in evaluating whether or not the

Appellant was in custody for purposes of Miranda. Furthermore the decision of the Court

of Appeals does not in this counsel's opinion represent what a reasonable objective

3 ( THE THONA.S LAW OFFICE 112 NORTH BARRON STREET EATON, OHIO 463¢0 007) a69-n1O3 person in the Appellant's position would have believed given the circumstances of this particular interrogation.

In this appeal the Appellant is asking the Court to accept jurisdiction of this case and to reexamine the legal analysis to be applied in determining whether or not a person being interviewed by law enforcement officers of the state of Ohio should or should not be advised of his or her Miranda rights prior to being questioned.

The Appellant proposes that if the Courts of the state of Ohio were required to apply the following test then the reasonable objective person determination for purposes of determining "custody" would be correctly and uniformly applied by all Courts across the State:

(1) Is the person being questioned by law enforcement personnel the main suspect in a

criminal investigation in which the person could lawfully be placed under formal

arrest prior to the commencement of any questioning? (or);

(2) With the exception of routine traffic stops, is the person being questioned physically

able to walk away from the interview without the assistance of law enforcement

personnel?

If the answer to question (1) above is determined by the Court to be answered in the positive then the individual must be advised of his Miranda Rights prior to the conunencement of any questioning? If the answer to question (1) above is in the negative then the Court must move to question number (2) and determine whether or not the individual being questioned can or cannot physically stop the interview from occurring

and walk away from the situation. If the answer to question number (2) above is in the positive then Miranda rights would not be required prior to the commencement of the

4 THE THObIdS LAW OFFIGE 112 NOBTH HARHON STREET HATON, OHIO 4s320 (e07)460-4103 interview. If the answer to number (2) above is in the negative then the individual must be advised of his Miranda rights prior to being questioned.

If the aforementioned two-prong test became the law in the state of Ohio then not only would the trial and Appellate courts throughout the state of Ohio have a rule of law to apply when determining when and when not Miranda rights are required but all law enforcement personnel would have a simple rule of law to utilize during their criminal investigations.

STATEMENT OF THE CASE AND FACTS

On October 4(h, 2006 the Preble County Sheriff s Department received a complaint from a young girl involving allegations that her adopted father, Appellant, had sexually molested her for a lengthy period of time. In response to these allegations two uniformed officers, a Preble County Detective, and the intake worker from Preble County

Children's services were called out to the location of the young girl. The young girl was interviewed by the officers and the children's services worker and she claimed inappropriate sexual abuse on the part of her adopted father/appellant, Ricky L. Baker, which if believed to be true by the Preble County Sheriff's Dept. would constitute enough evidence to arrest the Appellant and file a complaint alleging felony offenses.

Around 1:00 A.M. in the morning the Appellant called the church were his daughter, the alleged victim, was staying and asked her when she would be coming home. The Preble County Detective was listening to the conversation on a separate phone line. In response to this question the adopted daughter/purported victim advised the Appellant over the phorie that "she had told the police everything." In response to this statement the Appellant stated "so you are not coming home are you?"

5 THE THOMAS LAW OFFICE 112 NOHTH BABRON STREET EATON, OHIO 46320 (937) 469-4i03 Shortly after this conversation concluded Detective Bratton, Officer Wing,

Captain Spitler, and Tonya Hickman of Preble County Children's services drove out to the residence of the Appellant. The aforementioned law enforcement personnel were permitted to enter the residence of the Appellant by the Appellant's wife and Appellant was asked if he would speak with the officers outside. Appellant was in his pajamas when the officers arrived at his home.

After Appellant put his shoes on he was escorted by Detective Bratton and

Deputy Wing past two marked cruisers and told to have a seat in the front right passenger seat of Detective Bratton's unmarked police vehicle. Detective Bratton sat in the driver's seat and Deputy Wing sat in the rear passenger seat directly behind the Appellant.

Upon becoming situated in the vehicle, Detective Bratton began to question the

Appellant about allegations made by his daughter that he had sexually molested her for lengthy period of time. During this interview the Appellant made several incriminating statements in response to questions asked of him by Detective Bratton prior to asking about his rights and his desire to speak with an Attorney not once, not twice, but on three

separate occasions. Finally, when the appellant unequivocally invoked his right to

counsel the interview did cease and the Appellant was immediately placed under formal

arrest and taken into custody.

It is undisputed that the Appellant was not advised of his Miranda Rights prior to

being questioned by Detective Bratton about the allegations made by his daughter.

Appellant filed a timely motion to suppress the statements that he made in

response to Detective Bratton's questions as violating his Fifth Amendment right against

6 HATON, OHIO 46020 (937) 4s9-41O0 TI1E THOMAS i.AW OHBIOE 112 NOHTH HAHHON STRHET self-incrimination. The trial Court denied the Appellant's motion to suppress and the

Appellant pled no contest to all of the charges contained in the indictment.

The Appellant filed a timely notice of appeal with the TwelBh District Court of

Appeals alleging one assignment of error that being that the trial court applied the incorrect law in determining that the Appellarit was not in custody for purposes of

Miranda at the time in which the Appellant was interviewed by Detective Bratton.

On Apri1215`, 2008 the Twelfth District Court of Appeals rendered a decision affirming the Trial Court's decision finding that a reasonable objective person presented with the facts and situation in which the Appellant was presented would have felt free to go. It is from this decision that the Appellant seeks leave to appeal and discretionary jurisdiction by the Supreme Court of Ohio.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Sole Proposition of Law: For purposes of determining whether or not a defendant is in custody and should be advised of his Miranda rights prior to being questioned the Trial Courts and Appellate Courts throughout the state of Ohio should be required to apply the following two prong test: (1) Is the person being questioned by law enforcement personnel the main suspect in a criminal investigation in which the person could lawfully be placed under formal arrest prior to the commencement of any questioning? (or); (2) With the exception of routine traffic stops, is the person being questioned physically able to walk away from the interview without the assistance of law enforcement personnel?

A person is entitled to be advised of his Miranda Rights prior to being questioned

if he is subjected to "custodial interrogation." Miranda v. Arizona (1966), 384 U.S. 436,

478-79, 86 S.Ct. 1602. In the case at bar it is undisputed that the Appellant was subjected

to interrogation the only issue is whether or not Appellant was in custody. The U.S.

7 THE THOMA.4 LAW OHPICH 112 NORTH HAHRON STREET RATON, OHIO 4s320 (e37) 46B-4to3 Supreme Court in several decisions following, the landmark decision of Miranda v.

Arizona enunciated a general rule to be applied when determining whether or.not a person is in custody for purposes of applying Miranda. The fundamental proposition of law and question to be ascertained by the reviewing Court is whether or not a reasonable objective person in the suspect's position would have felt free to go. Berkemer v.

McCarty (1984), 468 U.S. 420, 442, 104 S.Ct. 3138. If a reviewing court determines that the so called reasonable objective person wotild have felt free to go then that person would be deemed not to be in custody for purpose of applying Miranda. If the opposite is true then the suspect would be entitled to his Miranda rights prior to being questioned.

Appellant is not trying to change the fundamental question and proposition of law as enunciated by the U.S. Supreme Court in the case of Berkemer v. McCarty. What the

Appellant is proposing is that reviewing Courts throughout the State of Ohio not be afforded such latitude and discretion when answering the fundamental question illustrated in Berkemer. What the Appellant believes is that the two prong test proposed in this memorandum of jurisdiction will assist the Courts of Ohio in determining what a reasonable objective person would conclude and would provide uniformity amongst the

Courts in determining when and when not an individual is in custody for purposes of

Miranda.

Under the current law in Ohio, the Twelfth District Court of Appeals concluded

that the Appellant was not in custody for purposes of Miranda. The Court of Appeals

concluded that a reasonable objective person if put in the position of the Appellant would

have felt free to go. The Court of Appeals focused on the fact that the Appellant

voluntarily went with the officers outside of bis residence and that he was permitted to sit

8

THH THOMAS LAW OPFIOR 112 NORTH HAHRON STREET HATON. OHIO 463¢U (037) 4e9-4[o3 in the front passenger seat of an unmarked cruiser prior to being questioned. They believed that because the Appellant was hot forced to leave his residence, handcuffed, or forced into the cruiser to answer questions about the alleged molestation of his adopted daughter that a custodial situation did not exist. The Court of Appeals also paid a great deal of attention to the fact that the doors did not lock on the inside of Detective Bratton's vehicle, there was no cage separating the Appellant from the police officers, and the fact that the interview occurred in the driveway of the Appellant's home. Based on these facts, the Court of Appeals concluded that a reasonable objective person in the appellant's position would have felt free to go.

First-of-all, Appellant contends that to reach the conclusion that the Court of

Appeals reached in the case at bar was a complete abuse of discretion. All one has to do is put himself or herself in the position of the Appellant to reach a completely opposite conclusion to the conclusion reached by the Twelfth District Court of Appeals. The

Appellant was the sole suspect of a police investigation involving accusations of sexual abuse which if proven would result in serious felony charges and the possibility of a lengthy prison sentence. Now imagine it is1:00 A.M. in the morning when two marked

cruisers and one unmarked cruiser pull into your driveway only ten minutes after your

adopted daughter just advised you over the phone that she told them everything. You are

asked to answer some questions, escorted from your residence by two officers, and told to have a seat inside an unmarked police cruiser. A uniformed officer, Preble County

Children's services worker, and your adopted daughter remain inside your residence as

you are being questioned about sexually abusing your adopted daughter inside the

unmarked police cruiser by a detective and a uniformed officer. Now ask yourself

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TR8 THONAS LAW OPP[OH 112 NORTH HAREON STREET EATON, OHIO 45020 (007) n69-4300 whether or not you would have felt free to stop the interview, exit the unmarked cruiser, walk away from the detective and the uniformed officer, reenter your residence, and go back to bed. To answer the aforementioned question in the affirmative is simply not in

accordance with the logical thinking of a reasonable objective person.

Appellant contends that the majority of trial courts and appellate courts

throughout the state of Ohio would have reached the opposite opinion of that reached by

the Twelfth District Court of Appeals and Appellant's statements would have been

suppressed, however, because of the broad discretion afforded reviewing Courts when

determining factual questions the Appellant as well as other potential defendants will

have very little recourse when dealing with situations involving custody determinations

relative to Miranda. What the Appellant proposes is that the Supreme Court of Ohio

adopt the following two-prong test to assist the lower Courts in objectively determining

when an individual is in custody for purposes of Miranda.

(1) Is the person being questioned by lavv enforcement personnel the main suspect in

a criminal investigation in which the person could lawfully be placed under

formal arrest prior to the commencement of any questioning? (or);

(2) With the exception of routine traffic stops, is the person being questioned

physically able to walk away from the interview without the assistance of law

enforcement personnel?

If the trial Courts and Appellate Courts of Ohio were required to apply this test in

determining whether or not a suspect was in custody prior to being questioned for

purposes of Miranda then objectivity, uniformity, and fairness would be consistently

applied by not only the reviewing Courts but by law enforcement personnel as well. Not

10

THE THOMAS LAW OFFIOE 112 NORTH BAHHON STREET EATON, OHIO 46320 (e37) 483-4[33 only would the Courts have a standard to apply when making this decision but law enforcement personnel would have a guide to their practices and procedures involving the appropriate time to advise a potential suspect of his or her Miranda rights.

To illustrate the effectiveness of this test one only needs to apply the aforementioned test to the facts of the case at bar. Under prong (1) of the test the

Appellant was the only suspect in a case involving alleged criminal acts in which the

Appellant could have been arrested based on the evidence already obtained by law enforcement personnel prior to the conunencement of the Appellant's interview inside

Detective Bratton's vehicle. The police officers could have arrested the Appellant based solely upon the statements and allegations made by Appellant's adopted daughter. The police interview of the Appellant that took place shortly after the adopted daughter's statements was not necessary to arrest the Appellant. The Appellant could have and would have been arrested regardless of whether he answered or did not answer the questions asked of him by Detective Bratton.

This test would not prevent police officers from engaging in there typical "Terry" investigations involving when there is not enough evidence and/or to arrest a suspect. During situations such as the routine traffic stop, or asking a person questions about what he is doing standing in front of a bank at 3:00 A.M.

in the morning prong ^1) of the test would not be satisfied and these circumstances would

not be deemed custodial interrogations unless of course prong (2) applied. Prong (2) of

the analysis pertains to those situations in which a suspect could not be arrested with the

evidence and information already possessed by the officer prior to the interview, but the

suspect is in a position in which he or she cannot physically leave the situation without

11

45300 (e37) 469-4100 THE THOMA3 LAW OPFICE q 2 NORTH HARRON STREST EATON, OHIO the assistance of a . In other words, if I were placed in the back seat of a police cruiser and subjected to questions about whether or not there were illegal drugs in my car based solely upon the fact that I fit a drug courier profile then Prong (1) of the test would not be satisfied because the officer does not possess enough evidence to arrest me for a potential drug charge, however, I am in a position in which I cannot exit the back of the police cruiser without the officer first opening the door for me to leave because I am locked inside the vehicle. Under this set of facts, prong (2) of the above- referenced rule would apply and I would be entitled to my Miranda Rights prior to being

questioned.

If the Supreme Court were to apply this test to assist the reviewing Courts and all

law enforcement personnel in the state of Ohio in making an objective determination as

to when and when not a suspect is in custody for purposes of Miranda then there would

finally be uniformity and Miranda determinations would no longer be up to the

independent discretion of the officers condur,ting the interviews of criminal suspects and

the reviewing Courts.

CONCLUSION

For the reasons stated above, this case involves a felony offense and an issue of

constitutional law that will give this honorable Court an opportunity to adopt a rule of

law that will help assist the lower Courts and law enforcement officers in the state Ohio

with an objective standard to detennine when and when not an individual should be

advised of his Miranda rights.

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THE THOMM9^W OPPIOR 112 NORTH BAItRON STREET BATON, OHIO ae020 (037) na®-nIO0 Respectfully Submitted, THE THOMAS LAW OFFICE ^

JATVIES W. THOMAS, JR. (0074051) Counsel for Appellant: Ricky L. Baker

Certificate of Service

I certify that a copy of this Memorandum in support of Jurisdiction was sent by ordinary U.S. mail to counsel for Appellee, Martin Votel, Preble County Prosecuting Attorney, at the Fir r of)he Preble Coi}arthouse, Eaton, OH 45320 on June 2Bd, 2008.

JAMES W. THOMAS, JR. Counsel for Appellant: Ricky L. Baker

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TIIE THOMAS LAW OFFICE 112 NOBTH BA%EON STREET EATON, OHIO csoe0 (e07) n69-hlU0 IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO FILED PREBLE COUNTY PREBLE COUNTY, OHIO APR 21 2008

W". to^^ M. ^^Wta7_ CLERK OF COURT OF APPEALS STATE OF OHIO,

Plaintiff-Appellee, : CASE NO. CA2007-04-009

OPINION - vs - 4/21/2008

RICKY L. BAKER,

Defendant-Appellant.

CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 06-CR-9705

Martin P. Votel, Preble County Prosecuting Attorney, James B. Vanzant, Preble County Courthouse, 1st Floor, 101 East Main Street, Eaton, OH 45320, for plaintiff-appellee

James W. Thomas, Jr., 112 North Barron Street, Eaton, OH 45320, for defendant-appellant

YOUNG, P.J.

{¶1} Defendant-appellant, Ricky L. Baker, appeals a decision of the Preble County

Court of Common Pleas convicting him of importuning, gross sexual imposition, sexual imposition, and rape. For the reasons outlined below, we affirm the decision of the trial court.

{12} While attending a church function on the night of October 4, 2006, 13-year-old

L.B. confided to her pastor that she had been sexually abused for years by appellant, her adoptive father. The pastor reported the allegations to the police. Deputy Josh Wing and Preble CA2007-04-009

Captain Mike Spitier of the Preble County SherifPs Office arrived at the church to question

L.B. Shorty after, the officers called Detective Steven Bratton of the Preble County Sheriffs

Office and Tonya Hickman of Preble County Children's Services to the scene.

{13} After interviewing L.B., the officers drove to appellant's house around 1:00 a.m.

Appellant's wife answered the door and permitted the officers to enter the residence. The officers asked appellant to accompany them to Bratton's unmarked cruiser for questioning.

Appellant complied. D.uring the interview, appellant admitted to touching L.B. and engaging in oral sex with her. Approximately 5 minutes into the interview, appellant asked for an attorney and the questioning ceased. Appellant was then arrested and transported to jail.

{14} In November 2006, the grand jury returned an indictment against appellant which included two counts of importuning in violation of R.C. 2907.07(B), a fifth-degree felony; one count of gross sexual imposition in violation of R. C. 2907.06(A)(4), a third-degree felony; one count of sexual imposition in violation of R.C. 2907.06(A)(4), a third-degree misdemeanor; and two counts of rape in violation of R.C. 2907.02(A)(1)(b), a first-degree felony. Appellant moved to suppress the statements he made to police. After a hearing, the trial court denied the motion. Appellant pled no contest to the charges, was found guilty, and was sentenced to a total of 6 years in prison. This appeal followed, in which appellant raises one assignment of error.

{¶5} Assignment of Error No. 1:

{16} "THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT

DETERMINED THAT THE APPELLANT WAS QUESTIONED BY POLICE OFFICERS ATA

TIME IN WHICH THE APPELLANT WAS NOT IN POLICE CUSTODY FOR PURPOSES OF

MIRANDA WARNINGS."

{17} Appellant argues that the statements he made while seated in Bratton's cruiser were the product of custodial interrogation and warranted suppression because Miranda -2- Preble CA2007-04-009

warnings were not administered to him before the questioning began. Appellant insists that

no objective, reasonable person in his place would have felt free to leave and, as a result, he

was in custody.

{118} Appellate review of a ruling on a motion to suppress evidence presents a mixed

question of law and fact. State v. Long (1998), 127 Ohio App.3d 329, 332. The trial court, as

the trier of fact, is in the best position to resolve questions of fact and evaluate witness

credibility. State v. Mai, Greene App. No. 2005-CA-115, 2006-Ohio-1430, ¶9. A reviewing

court must accept the trial court's findings of fact if they are supported by competent, credible

evidence. Id. The appellate court then determines as a matter of law, without deferring to the

trial court's conclusions, whether the trial court applied the appropriate legal standard. Id.

{19} The Miranda warnings serve as prophylactic safeguards to protect a person's

Fifth Amendment privilege against compelled self-incrimination. Miranda v. Arizona (1966),

384 U.S. 436, 478-79, 86 S.Ct. 1602. The police are not required to issue Miranda warnings to every individual they question. Oregon v. Mathiason (1977), 429 U.S. 492, 495, 97 S.Ct.

711. Rather, such warnings must be issued only when the police subject a suspect to

"custodial interrogation." Miranda at 444. See, also, State v. Biros, 78 Ohio St.3d 426, 440,

1997-Ohio-204. Therefore, the threshold inquiry is whether the individual being questioned was in custody at the time of the interrogation. California v. Beheler ( 1983), 463 U.S. 1121,

1125, 103 S.Ct. 3517; Mathiason at 495.

{110} To determine that a person was in custody for Miranda purposes, there must

have been either a formal arrest or a restraint of the individual's freedom of movement

commensurate with that of a formal arrest. Beheler, 436 U.S. at 1125. This is a fact-intensive

inquiry necessitating an examination of the totality of the circumstances. See Berkemer v.

McCarty (1984), 468 U.S. 420, 442,104 S.Ct. 3138; State v. Gumm, 73 Ohio St.3d 413, 429,

1995-Ohio-24. The relevant inquiry is whether an objective, reasonable person in the -3- Preble CA2007-04-009 suspect's place would have felt that he was not free to leave. Berkemerat 442.

{111} It is undisputed that Miranda warnings were not administered to appellant prior to being questioned in Bratton's cruiser. Clearly, appellant was subject to interrogation.

Bratton expressly questioned appellant to investigate the allegations made against him by

L.B. Rhode Island v. Innis (1980), 446 U.S. 291, 300-01, 100 S.Ct. 1682. The central issue is thus whether or not appellant was in custody for Miranda purposes during this interrogation.

{¶12} The trial court determined that appellant was not in custody, finding instead that the in-cruiser conversation constituted a police interview during the normal course of a criminal investigation. After thoroughly reviewing the record, we agree. Shortly after Bratton had finished interviewing L.B., appellant phoned the church to find out why L.B. had not returned home from the church function. L.B. informed appellant that "she told them," after which appellant said "you're not coming home, are you?" Following this conversation, the officers believed it imperative that they make contact with appellant as soon as possible. This was because they sought to prevent him from harming himself or his wife, taking someone hostage, or leaving the house. In addition, the officers had to make contact with appellant and his wife because L.B. was not returning home and needed to be placed somewhere else for the night.

{113} The officers arrived at appellant's residence shortly after 1:00 a.m. Wing and

Spitler drove separately in their marked cruisers while Bratton drove his unmarked cruiser, accompanied by Ms. Hickman. It was raining heavily when the group arrived. Wing, Spitler, and Bratton went to the door and knocked. Appellant's wife permitted the officers to enter the residence; no force or threats were used to gain entrance.

{¶14} When appellant emerged from the rear of the house, Spitler asked him to accompany them outside to talk. The house was a 1200-square foot residence with an open floor plan and a loft-style upstairs. Due to the small size of the house and the sensitive nature -4- Preble CA2007-04-009

of the subject, the officers wished to speak to appellant in a private place where they could

conduct the interview undisturbed. As it was still raining heavily outside when appellant and the officers exited the house, the interview was conducted in Bratton's cruiser. The fact that

the conversation took place in a police cruiser, alone, does not mean that appellant was in

custody. See State v. Davis (July 23, 1999), Hamilton App. No. C-980933, 1999 WL 518551,

at'2; State v. Johnson (May 1, 2000), Clermont App. No. CA99-06-061, at B.

{1115} No force was required to remove appellant from the residence or to get him in

the cruiser for questioning. Appellant agreed to accompany the officers outside, and even

began exiting the house in his bare feet until Wing suggested he put on shoes. Appellant willingly stepped outside and walked down the driveway. He was not handcuffed or told he was under arrest. Per Bratton's instruction, appellant sat in the front passenger seat of the

unmarked cruiser, opening and closing his own door. Bratton satin the front driver seat while

Wing sat in the back seat directly behind appellant.

{116} According to the testimony, Bratton's cruiser strongly resembled a civilian

vehicle. There was a police radio inside, but no cage separating the front seats from the back

seat. There were four doors, each with its own functioning lock and handle. The doors

remained unlocked for the duration of appellant's interview. At no time was appellant told he

could not leave the vehicle if he so chose. In addition, the entire interview took place in front

of appellant's house, in public surroundings familiar to him. Cf. Davis at *2; State v. Walker

(Sept. 16, 1997), Franklin App. No. 97APA02-212, 1997 WL 578946, at'3.

{¶17} After the two officers and appellant got into the vehicle, Bratton began asking

appellant questions about the allegations of sexual abuse conveyed to them by L.B. As

stated, it was at this time that appellant admitted to touching L.B. and engaging in oral sex

with her. When appellant unequivocally invoked his right to counsel, the interview ceased.

Bratton then informed appellant that he was under arrest. Appellant stated that he thought he -5- Preble CA2007-04-009 was already under arrest, but afterward acknowledged that he had come to the car and

spoken with Bratton voluntarily.

{¶18} Even if this acknowledgment was "coaxed" by Bratton, as appellant claims on

appeal, we are still constrained to apply an objective, reasonable person standard to

determine whether appellant was in custody. "Any interview of one suspected of a crime by a

police officer will have coercive aspects to it, simply by virtue of the fact that the police officer

is part of a law enforcement system which may ultimately cause the suspect to be charged

with a crime." Mathiason, 429 U.S. at 495. Under the facts of this case, an objective,

reasonable person would have been aware that he was a suspect facing some very serious

allegations. However, we believe that an objective, reasonable person would not have felt

that he was under arrest prior to the point at which Bratton advised appellant he was under

arrest in view of the facts and circumstances of the case.

{119} Wing and Bratton both testified that there were no threats or promises of

leniency in an attempt to obtain information from appellant. Appellant does not contend that

the officers utilized any physical intimidation. Also, the interview lasted only five minutes.

Bratton testified that it was a non-custodial interview, and that appellant was free to leave at

anytime. In no way was appellant's freedom to depart restricted prior to his arrest. Appellant.

was interviewed in an unmarked, unlocked police cruiser while seated in the front passenger

seat. At no time up until appellant unequivocally invoked his right to counsel did any of the

officers say he was under arrest. In addition, appellant was not handcuffed until after Bratton

placed him under arrest.

{120} In view of the aforementioned facts, it is evident that appellant was subjected to

a brief investigative interview rather than custodial interrogation. The officers were under a

duty to investigate the serious allegations made by L.B., and interviewed appellant as part of

this investigation. "Miranda was not intended to hamper the ability of law enforcement officers -6- Preble CA2007-04-009 to legitimately investigate crimes. *** Where the suspect is not in custody, the fact that an officer may consciously seek to elicit incriminating statements, even where the suspect is the focus of the investigation, does not necessarily entitle the suspect to a ."

Johnson, Clermont App. No. CA99-06-061 at 7, citing Minnesota v. Murphy (1984), 465 U.S.

420, 431, 104 S.Ct. 1136. (Citations omitted.)

{121} We conclude that, under the totality of the circumstances, appellant was not in custody when questioned by Detective Bratton. Miranda warnings were therefore unnecessary. Accordingly, the trial court properly overruled appellant's motion to suppress.

{322} The assignment of error is overruled.

{123} Judgment affirmed.

BRESSLER and POWELL, JJ., concur.

This opinion or decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court's web site at: http://www.sconet.state.oh.us/ROD/documents/. Final versions of decisions are also available on the Twelfth District's web site at: http://www.twelfth.courts,state.oh. us/search.asp