State v. Bolan

• Decision Date: 30 June 1971
• Docket Number: No. 70-147,70-147
• Parties: , 56 O.O.2d 8 The STATE of Ohio, Appellant, v. BOLAN, Appellee.
• Court: Ohio Supreme Court

Page 15

27 Ohio St.2d 15

271 N.E.2d 839, 56 O.O.2d 8

The STATE of Ohio, Appellant, v. BOLAN, Appellee.

No. 70-147.

Supreme Court of Ohio.

June 30, 1971.

Syllabus by the Court

Where, pursuant to R.C. § 2935.041, an employee of a merchant has detained a person whom he has probable cause to believe has unlawfully taken items offered for sale by the mercantile establishment, an admission or confession made during such detention is not rendered inadmissible by the failure of such employee to fully explain to such detained person those constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 694.

On December 7, 1968, defendant-appellee, Erwin Bolan, a 13-year-old boy, was observed by a security officer of the May Company taking a pair of gloves from the glove counter. He followed the boy to the top of the escalator, where he then apprehended him and took him to the security office.

At the hearing before the Juvenile Court of Cuyahoga County, the security officer, in addition to testifying that he saw the defendant take the gloves, also testified that during the rest of the time in the security office 'we explained to him his rights and we had all the information from him for our reports, and he admitted to us that he did take the gloves but he was willing to pay for them because he did have $131 on him.'

The gloves were not introduced in evidence by the state, nor did the state have them available at the hearing.

The Juvenile Court adjudged defendant a delinquent minor and sentenced him to the Cleveland Boys School, but suspended the commitment and placed him on probation.

The Court of Appeals reversed on the basis (1) 'that the trial court failed to require the production as evidence' of the gloves, and (2) 'that a claimed oral confession was received in evidence without proof of any effective waiver of his constitutional right respecting self incrimination.'

This cause is now before this court pursuant to the allowance of a motion to certify the record.

John T. Corrigan, Pros. Atty., and Harvey R. Monck, Cleveland, for appellant.

Bernard Berkman, Q. Albert Corsi, Cleveland, and Nancy C. Shuster, for appellee.

LEACH, Justice.

Basically, this case presents three issues: (1) Whether the trial court had the duty 'to require' the actual production of the gloves at trial; (2) whether the failure of the security officer to give all of the warnings set out in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, renders his testimony as to any admissions or confessions made by defendant, while detained pursuant to R.C. § 2935.041, inadmissible in evidence; and (3) whether, in any event, the admission in evidence of statements made by the defendant to the security officer was 'harmless error' within the scope of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.

Defendant does not assert that conviction of larceny (or determination of delinquency based on an act which would be larceny if committed by an adult) can never be had except upon physical presentation of the stolen merchandise at trial. Since the gist of such an offense is the unlawful taking, other evidence, including of course eyewitness testimony as to the taking itself, can supply proof beyond a reasonable doubt.

Instead, counsel for defendant seek to equate the failure of the trial judge to sua sponte order the production of the gloves in court as amounting to a 'suppression of evidence' in violation of due process of law. Here, counsel for defendant merely asked the security officer 'Do you have the gloves here?' When counsel received a negative response she made no demand, by subpoena or otherwise, or even any request that the gloves be produced at trial. ¹ Under this state of the record, we conclude, and so hold, that the trial court had no duty to sua sponte order the production of the gloves at trial, and thus that its failure 'to require' their production was not error.

We turn now to the real 'public or great general interest' issue of this case. Do the requirements of Miranda, supra, extend to any questioning or interrogation by a private citizen? Here, the record is clear that although some of the 'Miranda warnings' were given by the security officer, others were not. It is not clear from the record as to whether defendant's admission was in response to questions or was merely a spontaneous or volunteered statement. See State v. Hymore (1967), 9 Ohio St.2d 122, 224 N.E.2d 126. However, for the purposes of this opinion, we will assume that the statement of defendant was in response to interrogation by the security officer.

In this case, there is no evidence to indicate that the 'security officer' of the May Company was anything other than an employee of the May Company, or that he had any power of detention of a suspect other than that granted store employees by R.C. § 2935.041. ²

From a careful examination of the language of the opinion of Chief Justice Warren in Miranda v. Arizona, supra (384 U.S. 436, 444, 86 S.Ct. 1602, 1612), we think it clear that the term, 'custodial interrogation,' was limited to 'questioning initiated by law enforcement officers.' The opinion expressly states that, 'by custodial interrogation, we mean questioning initiated by law enforcement officers * * *.' Miranda involved four separate cases, in each of which the interrogating officers were policemen. Miranda speaks of 'law enforcement agencies' (ibid., 442, 86 S.Ct. 1602); 'law enforcement officers' (ibid., 444, 86 S.Ct. 1602); 'police interrogation procedures' (ibid., 457, 86 S.Ct. 1602); 'police' (ibid., 465, 86 S.Ct. 1602); and 'authorities' (ibid., 472, 86 S.Ct. 1602).

In our opinion, the limited right of temporary detention extended to a merchant's employee by R.C. § 2935.041 does not place him in the category of a 'law enforcement officer' within the purview of Miranda.

Essentially this same conclusion has been reached almost uniformly by courts of other jurisdictions. The rationale of these cases is that the duty of giving 'Miranda warnings' is limited to employees of governmental agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies; that it does not include private citizens not directed or controlled by a law enforcement agency, even though their efforts might aid in law enforcement.

Detention and questioning by department store security guards in connection with a suspected shoplifting was held not to require 'Miranda warnings' in People v. Frank (1966), 52 Misc.2d 266, 275 N.Y.S.2d 570, and in People v. Williams (1967), 53 Misc.2d 1086, 281 N.Y.S.2d 251. A similar conclusion was reached in People v. Wright (1967), 249 Cal.App.2d 692, 57 Cal.Rptr. 781, even though the security guard was employed by a governmental agency, a county hospital. In Schaumberg v. State (1967), 83 Nev. 372, 432 P.2d 500, the questioning of an employee of a gambling casino in the manager's office while one of the casino's security guards waited outside was held not to require such warnings. The questioning of a suspected shoplifter by the manager of a grocery store was held not to require 'Miranda warnings' in State v. Masters (1967), 261 Iowa 366, 154 N.W.2d 133. A grocery store merchant's questioning of an apprehended shoplifter was held not to be a 'custodial interrogation' within the meaning of Miranda in State v. Valpredo (1969), 75 Wash.2d 368, 450 P.2d 979. Similar holdings were made as to interrogation by private investigators in State v. Hess (1969), 9 Ariz.App. 29, 449 P.2d 46; as to statements made to private citizens who had seized a suspected rapist and were holding him for the police in Hubbard v. State (1967), 2 Md.App. 364, 234 A.2d 775, certiorari denied, 393 U.S. 889, 89 S.Ct. 208, 21 L.Ed.2d 168; as to admissions made by a defendant to armed private citizens who had apprehended him after he had shot at them in State v. Kemp (1967), 251 La. 591, 205 So.2d 411; as to admissions made to an insurance investigator in People v. Vlcek (1969), 114 Ill.App.2d 74, 252 N.E.2d 377; and as to a student's oral confession of making a false fire alarm in response to a high school principal's...