In re T.D.S.

(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.
{¶ 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 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

3
SUPREME COURT OF OHIO

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
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

4
January Term, 2024

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
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

.




                                          5
                               SUPREME COURT OF OHIO




                                  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,

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.
     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.




                                         6
                                January Term, 2024




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

.
         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.




                                         7
                              SUPREME COURT OF OHIO




        {¶ 20} In support of his argument, T.D.S. emphasizes that he has a low I.Q.
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 I.Q. 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.2d. 616, ¶ 190.
        {¶ 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




                                         8
                               January Term, 2024




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
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,




                                         9
                               SUPREME COURT OF OHIO




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.
       {¶ 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,




                                         10
                                January Term, 2024




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
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 the 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




                                         11
                             SUPREME COURT OF OHIO




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,

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
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.




                                          12
                                January Term, 2024




                 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
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

 (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 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.




                                         13
                               SUPREME COURT OF OHIO




          {¶ 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.
          {¶ 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 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 the 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




                                            14
                                January Term, 2024




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.”


Farris,

2006-Ohio-3255

849 N.E.2d 985, at ¶ 28

, quoting
Seibert,

542 U.S. at 615

.
       {¶ 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




                                         15
                             SUPREME COURT OF OHIO




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.
                                                                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,

, 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




                                         16
                                        January Term, 2024




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
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

(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

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.].

17
SUPREME COURT OF OHIO

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.
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 which police did not find when they went to the empty field
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

18
January Term, 2024

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
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

2. The juvenile court determined that the questioning became a custodial interrogation after TDS’s
mother left the room. It noted:

19
SUPREME COURT OF OHIO

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
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

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.

20
January Term, 2024

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.
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

, and that, therefore, his statements were inadmissible. The motion
also requested the suppression of “subsequent statements and identification as the

21
SUPREME COURT OF OHIO

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
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

22
January Term, 2024

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-I.Q. 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
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

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.

23
SUPREME COURT OF OHIO

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
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

24
January Term, 2024

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.
{¶ 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 a serious-
youthful-offender 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




                                          25
                              SUPREME COURT OF OHIO




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 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

        (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).




                                         26
                                      January Term, 2024




(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
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



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

.




                                                 27
                             SUPREME COURT OF OHIO




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
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,

2006-Ohio-3255

849 N.E.2d 985, ¶ 19-36

; Missouri v. Seibert,

542 U.S. 600, 617

 (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




                                         28
                               January Term, 2024




       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
       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




                                         29
                                  SUPREME COURT OF OHIO




         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),

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

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.

30
January Term, 2024

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
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.

31
SUPREME COURT OF OHIO

{¶ 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:

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:

32
January Term, 2024

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
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

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SUPREME COURT OF OHIO

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 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 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,

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




                                         34
                        January Term, 2024




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

 (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:
       “ ‘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

.” [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 6 hour long plus interview. 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

35
SUPREME COURT OF OHIO

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.

(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:




                                           36
                                January Term, 2024




               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

.
               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,

849 N.E.2d 985, at ¶ 23-24

2006-Ohio-3255

. 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




                                         37
                             SUPREME COURT OF OHIO




       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.
       {¶ 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




                                          38
                                January Term, 2024




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.
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

[,

]. 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

[,