513 N.E.2d 720 (Ohio 1987), 86-779, State v. Roberts

Docket Nº:86-779.
Citation:513 N.E.2d 720, 32 Ohio St.3d 225
Opinion Judge:HERBERT R. BROWN, J.
Party Name:The STATE of Ohio, Appellant, v. ROBERTS, Appellee.
Attorney:John A. Pfefferle, Pros. Atty., Sandusky, Ronald R. Smith, Bellevue, and Robert M. Moore, Huron, for appellant. John A. Pfefferle, prosecuting attorney, Ronald R. Smith and Robert M. Moore, for appellant., Oglesby & Oglesby and Geoffrey L. Oglesby, for appellee.
Judge Panel:SWEENEY, LOCHER and WRIGHT, JJ., concur. MOYER, C.J., and HOLMES and DOUGLAS, JJ., dissent. HOLMES, Justice, dissenting. DOUGLAS, J., dissenting.
Case Date:September 02, 1987
Court:Supreme Court of Ohio

Page 720

513 N.E.2d 720 (Ohio 1987)

32 Ohio St.3d 225

The STATE of Ohio, Appellant,


ROBERTS, Appellee.

No. 86-779.

Supreme Court of Ohio.

September 2, 1987

Syllabus by the Court

Statements by an in-custody probationer to his probation officer are inadmissible in a subsequent criminal trial, where prior to questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution. [32 Ohio St.3d 226]

On September 7, 1984, officers of the Sandusky Police Department went to the apartment of Shirley Norris to execute a search warrant which alleged that Norris' boyfriend, appellee, Vernon D. Roberts, a.k.a. Vernon Seavers, was selling cocaine, LSD and marijuana from her address. Roberts answered the door. He was given a copy of the warrant and advised of his constitutional rights. Subsequent to the search, Roberts was arrested and transported to the Erie County Jail for processing.

Approximately two hours after Roberts' arrest, John O'Nan, a detective with the Erie County Sheriff's office, telephoned Roberts' probation officer, Larry Fuqua, informing him of Roberts' arrest. Fuqua went to the county jail to obtain a copy of the arrest report and then visited Roberts in the booking area. Fuqua did not warn Roberts of his Miranda rights. In their conversation Roberts made self-incriminating statements. Fuqua did not take notes but, soon after leaving Roberts, reduced the incriminating statements to writing.

Thereafter, Roberts was formally charged with having a weapon while under disability, aggravated drug trafficking and drug abuse. Roberts was found guilty by a common pleas jury on all three counts.

Roberts appealed alleging that, inter alia, the trial court committed error by

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allowing the admission of Fuqua's testimony. The court of appeals reversed Roberts' conviction on the ground that statements made to Fuqua were inadmissible since Fuqua failed to give Miranda warnings.

The cause is before this court upon the allowance of a motion for leave to appeal.

John A. Pfefferle, Pros. Atty., Sandusky, Ronald R. Smith, Bellevue, and Robert M. Moore, Huron, for appellant.

Oglesby & Oglesby and Geoffrey L. Oglesby, Sandusky, for appellee.


In Miranda v. Arizona (1966), 384 U.S. 436, 478, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694, the United States Supreme Court held:

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

The Miranda holding was premissed upon the proposition that " * * * the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. 384 U.S. at 467, 86 S.Ct. at 1624. The [32 Ohio St.3d 227] court reasoned that " * * * [u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." Id. at 458, 86 S.Ct. at 1619. Thus, a statement obtained during a custodial interrogation, 1 in the absence of the requisite warnings, is considered a product of coercive influences and "compelled" within the meaning of the Fifth Amendment to the United States Constitution. 2 Id. at 460-462, 86 S.Ct. at 1620-1621.

In the case sub judice, Roberts was in custody at the time he made incriminating statements to his probation officer. See State v. Buchholz (1984), 11 Ohio St.3d 24, 26, 11 OBR 56, 58, 462 N.E.2d 1222, 1225; Berkemer v. McCarty (1984), 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317; Oregon v. Mathiason (1977), 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714. Hence, the primary issue is whether statements made by an incustody probationer to his probation officer, without prior Miranda warnings, are

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admissible in a subsequent criminal proceeding. This is a question of first impression in Ohio.


The United States Supreme Court has not addressed the precise issue; however, in Minnesota v. Murphy (1984), 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409, the court held that a statement obtained by a probation officer in a noncustodial setting could be introduced against a probationer in a subsequent criminal prosecution. 3 The court found that the coercion inherent in custodial interrogation is not present in a prearranged, routine probation interview. The court stressed the custody requirement of Miranda:

"We emphasize that Murphy was not under arrest and that he was free to leave at the end of the meeting. A different question would be presented if he had been interviewed by his probation officer while being held in police custody or by the police themselves in a custodial setting." (Emphasis added.) Id. 465 U.S. at 429, fn. 5, 104 S.Ct. at 1143 fn. 5.

The decisions in other jurisdictions are in conflict. Most of these cases turn on whether a probation officer is a "law enforcement officer" under Miranda. 4 [32 Ohio St.3d 228]

In People v. Ronald W. (1969), 24 N.Y.2d 732, 302 N.Y.S.2d 260, 249 N.E.2d 882, the court determined that although " * * * a probation officer is a 'peace officer' * * * he is not a 'law enforcement' officer within the spirit or meaning of Miranda v. Arizona, supra." Id. at 735, 302 N.Y.S.2d at 262, 249 N.E.2d at 884. The court reasoned: " * * * The clearly stated objectives of education and rehabilitation which are always paramount in the relationship between the probation officer and the probationer [citations omitted] are totally foreign to the elements the Supreme Court addressed itself to in Miranda." Id. at 734-735, 302 N.Y.S.2d at 262, 249 N.E.2d at 883. Accord State v. Johnson (1972), 87 S.D. 43, 202 N.W.2d 132; State v. Jackson (1972), 16 Ariz.App. 476, 494 P.2d 376. 5 See, also, Nettles v. State (Fla.App.1971), 248 So.2d 259.

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

In State v. Magby (1976), 113 Ariz. 345, 554 P.2d 1272, the defendant-probationer was arrested as a suspect in connection with a fatal shooting incident. Two days after his incarceration, defendant's probation officer visited him in jail and, without prior Miranda warnings, questioned him about the shooting. The Supreme Court of Arizona held that in-custody statements regarding a new offense, elicited without Miranda warnings by a probation officer,

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should not be admissible. 6 Id. at 349, 554 P.2d at 1276. The court stressed the psychological pressure inherent in an in-custody interview between a probation officer and the probationer. Id. Accord Marrs v. State (1982), 53 Md.App. 230, 452 A.2d 992. See, also, State v. Lekas (1968), 201 Kan. 579, 442 P.2d 11. 7 [32 Ohio St.3d 229] II

This court addressed the admissibility of statements obtained by a parole officer without first advising the in-custody parolee of his constitutional rights in State v. Gallagher (1974), 38 Ohio St.2d 291, 67 O.O.2d 354, 313 N.E.2d 396, vacated (1976), 425 U.S. 257, 96 S.Ct. 1438, 47 L.Ed.2d 722, on remand (1976), 46 Ohio St.2d 225, 75 O.O.2d 280, 348 N.E.2d 336. In Gallagher, we followed United States v. Deaton (C.A.5, 1972), 468 F.2d 541, 544, certiorari denied (1973), 410 U.S. 934, 93 S.Ct. 1386, 35 L.Ed.2d 597. We held:

"Testimony as to utterances made by an accused to his parole officer is inadmissible at trial where the utterances were in response to questions by the parole officer, and, prior to the questioning, the parole officer failed to advise the accused of his right to remain silent, of his right to be provided with counsel prior to questioning, and warn him that any utterance may be used as evidence against him." Gallagher, supra (38 Ohio St.2d, 313 N.E.2d 396), at syllabus.

This court has also recognized " * * * that a probationer, like the parolee in Gallagher...

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