B.A. v. State of Indiana , 73 N.E.3d 720 ( 2017 )

FILED
Mar 29 2017, 8:45 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy Karozos Curtis T. Hill, Jr.
Greenwood, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
B.A., March 29, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1606-JV-1474
v. Appeal from the Marion Superior
Court, Juvenile Division
State of Indiana, The Honorable Scott Stowers,
Appellee-Plaintiff. Magistrate
The Honorable Marilyn A.
Moores, Judge
Trial Court Cause No.
49D09-1602-JD-234
Brown, Judge.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 1 of 21
[1] B.A. appeals the juvenile court’s true finding that he committed delinquent acts
which, if committed by an adult, would constitute false reporting, a level 6
felony, and institutional criminal mischief as a class A misdemeanor. B.A.
raises one issue which we revise and restate as whether the court abused its
discretion in admitting into evidence certain statements, which he alleges were
obtained in violation of his constitutional right against self-incrimination. We
affirm.
Facts and Procedural History
[2] On Friday, February 5, 2016, Officer Paul Tutsie, Chief Administrative Officer
for the Metropolitan School District of Decatur Township School Police
Department who worked primarily at the high school, received a call that one
of the janitors at Decatur Middle School discovered a message written in pink
marker on the wall of one of the boys’ restrooms at the school reading: “I will
got [sic] a bomb in the school Monday 8th 2016 Not a joke.” State’s Exhibit 1.
Officer Tutsie, “immediately went into investigative mode, took it as a credible
. . . threat” that was “ongoing.” Transcript at 63. That evening, Officer Tutsie
took pictures of the scene and reviewed footage from a hall camera to identify
who was responsible. By the end of Friday evening, he had narrowed his
search to four individuals that could have possibly been involved. The next
day, Officer Tutsie met with Decatur Middle School Principal Val Barrantine
for help identifying the four persons he had narrowed the search to from the
video data. Officer Tutsie also showed photos to Vice Principal Missy Harvey
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 2 of 21
to identify the individuals. By the end of the weekend, they had two “very
viable suspects,” one of whom was B.A. Id. at 66.
[3] On Monday morning, February 8, 2016, Vice Principal Al Remaly conducted a
sweep of the school with School Resource Officers Lyday and Wheeler and
determined there was no immediate threat. Afterwards, Remaly went back to
his office and met with Officer Tutsie and Officer Lyday, who was primarily
stationed at the elementary schools, to discuss how to handle the situation and
specifically to “try to . . . handle everything as a school matter first.” Id. at 13.
Officer Tutsie suggested that the buses be boarded by both administrators and
police officers to remove the suspects from the buses. They planned for the two
school administrators, Remaly and Harvey, to board the buses “along with the .
. . officers[] to get the students off the bus, bring them into school to separate
areas, and start [their] investigation.” Id. at 14.
[4] When the buses arrived at the school, Remaly and Officer Lyday boarded the
school bus B.A. was on, removed B.A., and brought him into Remaly’s office,
which is large and L-shaped. Officer Wheeler, who was primarily stationed at
the middle school, went with Harvey to remove the other student suspect and
took that student to Harvey’s office. Remaly sat at his desk, and B.A. sat in a
chair in front of the desk. Officer Lyday stood about five feet to the left of B.A.
and out of B.A.’s direct line of sight. Remaly asked B.A. if he knew why he
was there, and B.A. responded that he had no idea. Early on in the
questioning, Officer Tutsie entered the room and took the spot where Officer
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 3 of 21
Lyday was standing, and Officer Lyday backed up. Officer Lyday later sat at
the conference table in the office about seven to ten feet behind B.A.
[5] Meanwhile, Harvey engaged in questioning with the other student while in the
presence of Officer Wheeler. The questions were posed at Harvey’s discretion.
She also obtained a handwriting sample from the student. After speaking with
the student for about five or six minutes, she determined that he was not
involved in making the threat. Harvey then went to Remaly’s office where he
was still speaking with B.A. Officer Wheeler also went to Remaly’s office,
arriving a few minutes ahead of Harvey, and he sat down at the conference
table when Harvey arrived.
[6] Remaly directed the interview with B.A. the entire time. B.A denied writing on
the bathroom wall several times. At one point, Officer Lyday said to B.A.:
“Come on, bud, let’s just- let’s- let’s- can we just get- tell the truth and answer
the questions.” Id. at 54. Officer Tutsie handed a handwriting “scenario
sample” that he had prepared to Remaly. Id. at 74. Remaly soon after handed
it back to Officer Tutsie, who then passed it to B.A. at Remaly’s direction.
Officer Tutsie “explained” to B.A. that he needed B.A. “to fill out exactly how
it was written on the paper.” Id. at 74. After B.A. copied the scenario sample,
Officer Tutsie examined it, handed it to Remaly, and Remaly compared it to a
picture of the bathroom wall writing, circling letters from the scenario “that
kinda matched the picture . . . .” Id.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 4 of 21
[7] After comparing the writings, Remaly came to the conclusion that B.A. wrote
the threat on the bathroom wall and said to B.A. that the handwriting looks
similar and asked him “why did you do it?” Id. at 120. B.A. then started to cry
and responded: “I don’t know. I’m sorry.” Id. At that point, Remaly decided
to move B.A. to the main office and call B.A.’s mother. The meeting in
Remaly’s office lasted approximately fifteen minutes.
[8] B.A.’s mother arrived and asked B.A. what he did, and B.A. started to cry and
said “I don’t know, mom, I’m- I’m sorry.” Id. at 122. He indicated that it was
a joke and he did not know why he did it. Remaly decided to suspend B.A.,
pending expulsion, and then met in the hallway with the officers and informed
them of his decision, and he noted it was up to law enforcement to determine
what they wanted to do. Remaly later returned to the office and informed B.A.
and his mother of his decision. Afterwards, Officer Tutsie and Officer Lyday
discussed the potential legal ramifications with B.A. and his mother and made a
decision to arrest B.A. He was ultimately expelled from the school as a result
of the incident.
[9] On February 9, 2016, the State alleged B.A. to be a delinquent child for false
reporting, an act which would be a level 6 felony if committed by an adult, and
for institutional criminal mischief, an act which would be a class A
misdemeanor if committed by an adult. On May 18, 2016, B.A. filed a motion
to suppress statements he had made. A denial hearing commenced the same
day, at the outset of which the parties discussed whether to proceed as a hearing
on a motion to suppress or a denial hearing. The court ruled to “handle the
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 5 of 21
trial as normal” but to consider B.A.’s motion to suppress when raised at the
hearing. Id. at 7.
[10] During the direct examination of Remaly, defense counsel objected when
Remaly began testifying about his questioning of B.A. and, after asking
preliminary questions, moved to suppress the evidence of the conversation due
to a violation of B.A.’s Miranda rights. Defense counsel also objected during
the testimony of Officer Tutsie and argued that the investigation was
“generated” by Officer Tutsie to determine whether an individual had
committed a crime. Id. at 93. Defense counsel highlighted that the office had
up to six adults, that B.A.’s parent was not present, and that there was not an
advisement of rights. The prosecutor responded that “[t]here was an ongoing
threat,” that “[t]here was a school purpose to talk to this student” and the other
student, and that it was a “matter of school safety.” Id. at 96. The prosecutor
argued that, with the exception of a few statements by officers, the interview
was conducted by Remaly to determine whether there was “a credible ongoing
threat . . . .” Id. After hearing arguments, the court briefly recessed and,
following recess, denied B.A.’s motion, ruling that
the investigation and questioning was led by . . . Remaly, um,
either Officer Tutsie or one of his, uh colleagues was present.
Uh, there’s really no indication that, uh, Officer Tutsie or any of
the police or school resource officers was feeding him questions
or otherwise pulling his strings in an effort to circumvent
Miranda.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 6 of 21
Id. at 104. Following the court’s ruling, the hearing adjourned for the day. The
hearing resumed on June 6, 2016, at which the court entered findings of true on
both allegations.
Discussion
[11] The issue is whether the court abused its discretion in admitting into evidence
B.A.’s inculpatory statements. The admission and exclusion of evidence is a
matter within the sound discretion of the trial court, and we will review only for
an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An
abuse of discretion occurs “where the decision is clearly against the logic and
effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502, 504 (Ind.
2001).
[12] “A juvenile charged with delinquency is entitled to have the court apply those
common law jurisprudential principles [that] experience and reason have
shown are necessary to give the accused the essence of a fair trial.” S.G. v. State,
956 N.E.2d 668, 674 (Ind. Ct. App. 2011) (quoting In re K.G., 808 N.E.2d 631,
635 (Ind. 2004) (citing In re Gault, 387 U.S. 1, 30, 87 S. Ct. 1428 (1967))), trans.
denied. “Without question, these include . . . the constitutional privilege against
self-incrimination . . . .” Id. In order to protect “the right against self-
incrimination, the United States Supreme Court’s opinion in Miranda v.
Arizona,[ 1] established that the prosecution may not use statements, whether
1
384 U.S. 436, 86 S. Ct. 1602 (1966).
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 7 of 21
exculpatory or inculpatory, stemming from custodial interrogation of the
defendant unless it demonstrates the use of procedural safeguards effective to
secure the privilege against self-incrimination.” Id. (internal quotations
omitted). Such procedural safeguards include an advisement to the accused
that he has the right to remain silent and that anything he says can be used
against him. Id.
[13] Also, this court has repeatedly observed that “[t]he special status accorded
juveniles in other areas of the law is fully applicable in the area of criminal
procedure.” Id. (quoting S.D. v. State, 937 N.E.2d 425, 429 (Ind. Ct. App.
2010), trans. denied). “To give effect to that status in the context of waiving
intricate, important, and long established Fifth . . . Amendment rights, we
require that a juvenile be afforded a meaningful opportunity to consult with a
parent or guardian before the solicitation of any statement.” Id. That is, in
cases where a juvenile is subject to custodial interrogation, such child must be
read his rights under Miranda, and the State must obtain the waiver of such
rights pursuant to the juvenile waiver statute found at Ind. Code § 31-32-5-1. 2
Id. at 674-675.
2
Ind. Code § 31-32-5-1 provides:
Any rights guaranteed to a child under the Constitution of the United States, the Constitution
of the State of Indiana, or any other law may be waived only:
(1) by counsel retained or appointed to represent the child if the child knowingly and
voluntarily joins with the waiver;
(2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if:
(A) that person knowingly and voluntarily waives the right;
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 8 of 21
[14] It is undisputed that B.A. was neither read his Miranda rights nor given the
opportunity to have a meaningful consultation with a parent or guardian. “As
a general rule, however, Miranda warnings and the juvenile waiver statute
attach only where a subject is both in custody and subject to interrogation.” Id.
at 675; see also P.M. v. State, 861 N.E.2d 710, 713 (Ind. Ct. App. 2007)
(“Miranda warnings are only required, however, where a suspect is both in
custody and subjected to interrogation.” (citing Rhode Island v. Innis, 446 U.S.
291, 300, 100 S. Ct. 1682 (1980))). To determine whether a defendant is in
custody, we generally ask whether a reasonable person under the circumstances
would consider himself free to resist the entreaties of the police. P.M., 861
N.E.2d at 713 (citing White v. State, 772 N.E.2d 408, 412 (Ind. 2002)).
“Interrogation has been defined as a process of questioning by law enforcement
officials which lends itself to obtaining incriminating statements.” S.G., 956
N.E.2d at 675. “Under Miranda, ‘interrogation’ includes express questioning
and words or actions on the part of the police that the police know are
reasonably likely to elicit an incriminating response from the suspect.” (quoting
(B) that person has no interest adverse to the child;
(C) meaningful consultation has occurred between that person and the
child; and
(D) the child knowingly and voluntarily joins with the waiver; or
(3) by the child, without the presence of a custodial parent, guardian, or guardian ad
litem, if:
(A) the child knowingly and voluntarily consents to the waiver; and
(B) the child has been emancipated under IC 31-34-20-6 or IC 31-37-19-27,
by virtue of having married, or in accordance with the laws of another state
or jurisdiction.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 9 of 21
White, 772 N.E.2d at 412 (citing Innis, 446 U.S. at 301, 100 S. Ct. 1682)). The
United States Supreme Court has held that the safeguards outlined in Miranda
also apply to the functional equivalent of interrogation by the police. Id. (citing
Innis, 446 U.S. at 301-302, 100 S. Ct. 1682; Robey v. State, 555 N.E.2d 145, 148
(Ind. 1990)).
[15] Whether a person was in custody depends upon objective circumstances, not
upon the subjective views of the interrogating officers or the subject being
questioned. Id. (citing Gauvin v. State, 878 N.E.2d 515, 520 (Ind. Ct. App.
2007), trans. denied). For an interrogation to be custodial in nature, one does
not necessarily have to be under arrest. Id. To be custodial in the non-arrest
context, the interrogation must commence after the person’s freedom of action
has been deprived in any significant way. Id. at 675-676; see also id. at 676
(citing Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (“When determining
whether a person was in custody or deprived of his freedom, the ultimate
inquiry is simply whether there is a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.”)). This is determined
by examining whether a reasonable person in similar circumstances would
believe he is not free to leave. Id. at 676 (citing Luna, 788 N.E.2d at 833). “It is
well established in the caselaw defining ‘interrogation’ and ‘custody’ that the
two cannot exist without the presence of a law enforcement officer.” Id.
(quoting Elizabeth A. Brandenburg, School Bullies–They Aren’t Just Students:
Examining School Interrogations and the Miranda Warning, 59 MERCER L. REV.
731, 734 (2008) (citing Miranda, 384 U.S. at 478, 86 S. Ct. 1602)).
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 10 of 21
[16] B.A. argues that this court recognized in S.G. that questioning by a school
officer, in conjunction with the presence of police officers, may constitute a
custodial interrogation and that the circumstances of this case rise to that level.
Appellant’s Brief at 20 (citing S.G., 956 N.E.2d at 679). He asserts that the
police drove the investigation when Officer Tutsie reviewed and gathered
evidence for identifying suspects, Officer Lyday boarded the bus with Remaly
to remove B.A. and escorted him to Remaly’s office, and B.A. was not free to
leave during the questioning. He notes that, at one point, he was questioned
while surrounded by three uniformed officers and two administrators. B.A.
also asserts that it was Officer Tutsie who handed B.A. the handwriting sample
and instructed him to copy it and that Officer Lyday told him to “tell the truth.”
Id. at 21. B.A. further argues that his age weighs in favor of finding a Miranda
violation. Id. at 23 (citing J.D.B. v. North Carolina, 564 U.S. 261, 264-265, 131 S.
Ct. 2394, 2398-2399 (2011)).
[17] The State argues that the evidence reveals Remaly led the interrogation and
B.A. was not free to leave because he was talking to a school administrator in
the administrator’s office about a serious disciplinary matter. The State asserts
that “without the active involvement of law enforcement, it was not a custodial
interrogation for purposes of triggering Miranda or the requirements of the
juvenile waiver statute.” Appellee’s Brief at 11. The State argues that Officer
Lyday made a single comment about telling the truth, and Officer Tutsie “spoke
only to explain to B.A. how to fill out the handwriting sample at Remaly’s
direction.” Id. at 13. It asserts that Remaly obtained handwriting samples in
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 11 of 21
advance of the interview and did the handwriting comparison. The State
contends that Remaly was attempting to keep the school safe and to determine
an appropriate school disciplinary punishment, that there was no evidence
Remaly was acting as an agent of law enforcement, and that the mere presence
of the officers does not transform the interview into an action by law
enforcement. The State also points out that the officers were largely out of
B.A.’s sight during the interview when they sat behind him at a conference
table.
[18] This Court has previously provided thorough analysis of the law concerning the
issue presented in S.G. In that case, a teacher was using a staff restroom at the
Coleman Alternative Education Center when her iPhone was stolen from her
handbag which had been left on the restroom counter. S.G., 956 N.E.2d at 672.
The teacher notified the principal, Linda Gagyi, of the theft, and Gagyi notified
Officer Stevan Guynn with the Indianapolis Public School System Police
Department. Id. Officer Guynn reviewed surveillance footage, which revealed
that T.C., a female student at the school, had been the only person in the
restroom at the same time as the teacher, prompting Gagyi to speak with T.C.
Id. The next day, S.G. “appeared on the ‘radar’” as someone who might also
be involved in the phone’s disappearance. Id. At Gagyi’s request, Officer
Guynn found S.G. and directed him to the principal’s office, where Gagyi and
Officer Guynn sat with S.G. for a meeting. Id. Only Gagyi asked S.G.
questions about the phone. Id. S.G. was not given Miranda warnings or an
opportunity to speak with his parent or guardian. Id. at 672-673. S.G. made
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 12 of 21
incriminating statements and was suspended. Id. at 673. About three months
later, the State filed a petition of delinquency alleging that S.G. was a
delinquent child because he had committed receiving stolen property, a class D
felony if committed by an adult. Id.
[19] On appeal, this Court made the following observation regarding analyzing
whether a juvenile is in custody for purposes of Miranda under circumstances
where the juvenile is questioned at school while in the presence of a police
officer:
A school with a traditionally tutelary principal and one with a
taser firing officer stand at opposite ends of a spectrum with
respect to the degree and nature of force to which students may
be subjected. Miranda claims at either end are fairly easy to
address. A principal acting alone and without invoking or
outwardly benefiting from the authority of any law enforcement
officer may question a student without complying with Miranda’s
requirements. A student’s answers to such questions will be
admissible at subsequent juvenile or criminal proceedings. On
the other hand, a police officer who acts in a traditional law
enforcement mode—for example arranging for a student to be
removed from class, handcuffed, and placed in a closed office
alone with the officer—must advise the student of her rights
before questioning the student. If the officer fails to do so, any
statements made by the student will not be admissible in juvenile
or criminal proceedings. The challenges for courts will come
from the array of cases that fall between these two extremes. The
modern alignment between educational and law enforcement
authorities requires courts to determine whether and when a
principal’s questioning [is] subject to Miranda and how an
officer’s part-time assignment at the front of a crowded classroom
should affect the analysis of the officer’s subsequent interrogation
of a lone student in a closed office.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 13 of 21
Id. at 676 (quoting Paul Holland, Schooling Miranda: Policing Interrogation in the
Twenty-First Century Schoolhouse, 52 LOY. L. REV. 39, 41 (2006)).
[20] We also summarized prior Indiana cases that addressed the issue of whether a
student was in custody when questioned at his or her school, including State v.
C.D., 947 N.E.2d 1018 (Ind. Ct. App. 2011); G.J. v. State, 716 N.E.2d 475 (Ind.
Ct. App. 1999); and S.A. v. State, 654 N.E.2d 791 (Ind. Ct. App. 1995), trans.
denied, disapproved of on other grounds by Alvey v. State, 911 N.E.2d 1248, 1250
(Ind. 2009). 3 Id. at 676-678. In each case, the court on appeal held that there
was no Miranda violation. In S.A., the court found that “there was no coercive
atmosphere to protect against” and that “the questioning took place in the
school building, by the vice-principal, and a major portion of it occurred in the
presence of the student’s father.” Id. at 677 (citing S.A., 654 N.E.2d at 797). In
G.J., juvenile G.J. was questioned by the dean in the dean’s office regarding
whether he had brought marijuana to school and there was no violation of
G.J.’s rights. Id. (citing G.J., 716 N.E.2d at 477). The record did not indicate
whether an officer was in the office during the questioning. Id. (citing G.J., 716
N.E.2d at 477).
[21] In C.D., a high school student suspected of being “under the influence of some
substance” was brought to the principal’s office, and the principal asked for the
3
The Court also discussed S.D., noting that whether the juvenile was in custody was not at issue in that case
and rather the issue on appeal concerned whether S.D.’s rights were violated when the State failed to comply
with the juvenile waiver statute. 956 N.E.2d at 678.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 14 of 21
assistance of Officer Chad Richhart, who was a “‘drug recognition evaluator,’
to determine what substance C.D. might have taken.” 956 N.E.2d at 677.
Officer Richhart examined C.D. in the principal’s office in which only those
three individuals were present, and following the examination he told the
principal that C.D. was under the influence of marijuana that had been smoked
that day. Id. C.D. stated that he had not smoked marijuana that day but did so
the previous night, the principal suspended C.D. from school, and then the
principal searched C.D.’s backpack and discovered two pills identified as
Adderall, a controlled substance. Id. The principal handed the pills to Officer
Richhart and called C.D.’s mother. Id. The State thereafter filed a delinquency
petition related to the discovery of the pills on the school’s campus. Id.; C.D.,
947 N.E.2d at 1020-1021. The trial court suppressed the evidence of the pills
based upon the juvenile waiver statute, but this Court reversed, stating:
[T]his case resembles that of G.J. The environment in which
C.D. was questioned was no more coercive than in G.J., as both
were questioned at school. C.D. was not free to leave [the
principal’s] office, but he was detained by [the principal] for an
educational purpose, which was to keep possibly intoxicated
students out of the classroom. Furthermore, C.D. admitted to
drug use without being directly questioned on that point by
Richhart or [the principal]. After the examination, [the principal]
told C.D. he would be suspended from school, which further
demonstrates that C.D.’s examination was intended to carry out
an educational function or school purpose, not to further a
criminal investigation.
We note that in C.D.’s case, unlike in G.J., C.D. was examined
by a school security officer in police uniform rather than a school
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 15 of 21
administrator. Under the circumstances of this case, we
conclude that this difference is not significant. Richhart was not
independently investigating the matter. Instead, Richhart
examined C.D. at [the principal’s] request and in [the principal’s]
presence. Furthermore, after the examination was complete, [the
principal] did not immediately ask Richhart to take C.D. into
custody but instead advised C.D. that he would be suspended.
This evidence indicates that Richhart was acting to fulfill an
educational purpose. Therefore, the fact that Richhart, rather
than [the principal], examined and questioned C.D. did not
transform the examination into a custodial interrogation.
Consequently, we conclude that C.D. was not undergoing
custodial interrogation when he answered Richhart’s questions
and made an incriminating admission, and the Miranda warnings
and safeguards in Indiana Code section 31-32-5-1 (1997) are
inapplicable here. Thus, C.D. was not deprived of his right to
meaningful consultation with his parents when Richhart
examined him.
S.G., 956 N.E.2d at 677-678 (quoting C.D., 947 N.E.2d at 1022-1023).
[22] In addition to the Indiana cases, we observed in S.G. that “other states have
extended the concept of custody to school situations in which a school official,
rather than a police officer, does the questioning, holding that the officer’s
pervasive presence can ‘significantly increase[] the likelihood [that the juvenile]
would produce an incriminating response to the principal’s questioning.’” Id. at
678-679 (quoting S.G.’s Appellant’s Brief at 9 (citing In re K.D.L., 700 S.E.2d
766, 772 (N.C. Ct. App. 2010))).
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 16 of 21
[23] In S.G. we stated that “under certain circumstances a police officer’s presence in
conjunction with a school official’s questioning may be significant enough to
constitute the type of setting that we would characterize as custodial” but that
the facts in that case did not satisfy the requirements of a custodial
interrogation. Id. at 679. In making this determination, we noted that S.G. was
seventeen years old and had participated in a “‘metro expulsion’ program,” that
the principal contacted Officer Guynn and asked him to bring S.G. to her
office, that S.G. was asked one question by the principal about the whereabouts
of the iPhone, and that upon hearing the answer the principal decided to
suspend S.G. and called S.G.’s parents. Id. We noted that Officer Guynn,
although present, did not provide or ask questions or otherwise participate in
the meeting, and his presence was consistent with his duty “of being responsible
for the ‘safety and security of the students and staff’ . . . .” Id. We further
observed that “[t]here is no evidence that Officer Guynn’s presence was
threatening,” that “[h]e was not separately investigating who had taken” the
phone, and that indeed S.G. was not taken into custody and did not have a
delinquency petition filed against him for two months following the incident.
Id.
[24] We also observed a then-recent decision by the United States Supreme Court,
J.D.B. v. North Carolina, 564 U.S. 216, 131 S. Ct. 2394 (2011), in which the
Court “held that a child’s age also is a proper consideration in the Miranda
custody analysis, so long as the child’s age was known to the officer at the time
of police questioning or would have been apparent to a reasonable officer.” Id.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 17 of 21
at 680 n.9; see also J.D.B., 564 U.S. at 276, 131 S. Ct. at 2406 (“Reviewing the
question de novo today, we hold that so long as the child’s age was known to the
officer at the time of police questioning, or would have been objectively
apparent to a reasonable officer, its inclusion in the custody analysis is
consistent with the objective nature of that test.”). The J.D.B. Court noted that
the child’s age may not “be a determinative, or even a significant, factor in
every case,” but that “[i]t is . . . a reality that courts cannot simply ignore.” 564
U.S. at 276, 131 S. Ct. at 2406.
[25] In this case, then thirteen year old B.A. was removed from the bus on Monday
morning by Remaly and Officer Lyday and was brought to Remaly’s office, a
large, L-shaped office, as opposed to the office of the school resource officers.
B.A. sat in a chair in front of Remaly’s desk and faced Remaly, who questioned
him. Officer Lyday initially stood to the side of B.A. before taking a seat at the
conference table located about seven to ten feet behind him. Officer Tutsie then
took Officer Lyday’s spot standing to the side of B.A. At some point, both Vice
Principal Harvey and Officer Wheeler joined the others in Remaly’s office.
Remaly directed the questioning about the incident, and B.A. initially denied
writing on the bathroom wall. At one point, Officer Lyday told B.A. to tell the
truth. After Officer Tutsie entered the room, he handed Remaly a handwriting
scenario sample that he had prepared, and Remaly looked it over. Remaly then
handed it to Offcier Tutsie and asked the officer to give it to B.A. and explain to
B.A. how to complete the scenario. At Remaly’s direction, Officer Tutsie went
over with B.A. how to fill out the paper. After B.A. completed it, Officer Tutsie
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 18 of 21
handed it to Remaly, who compared it with the writing found on the bathroom
wall, circling letters from the scenario “that kinda matched the picture . . . .”
Transcript at 74. Remaly then again asked B.A. “why did you do it,” and B.A.
started to cry and responded: “I don’t know. I’m sorry.” Id. at 120. At that
point, Remaly decided to move B.A. to the main office and called B.A.’s
mother to ask her to come to the school. After B.A. had been allowed to speak
with his mother, Remaly told them that he had decided to suspend B.A.,
pending expulsion. Remaly also met in the hallway with the officers and
informed them of his decision and noted it was up to law enforcement to
determine what they wanted to do. The officers afterwards made the decision
to arrest B.A.
[26] Like in previous cases in which we found the juvenile was not subject to
custodial interrogation, the questioning of B.A. was performed by a school
administrator in the administrator’s office. Although B.A. was not free to
leave, he was detained for an educational purpose, namely, to make sure the
school was safe from explosives. Like in C.D., although a test may have been
administered by an officer during the questioning, such test was done at the
request of the school administrator and the officer did not otherwise ask the
juvenile questions.
[27] Also, as for Officer Tutsie’s testimony that he “immediately went into
investigative mode, took it as a credible . . . threat” that was “ongoing,” id. at
63, and investigated through the weekend by reviewing video and identifying
possible suspects, the United States Supreme Court has made clear that aspects
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 19 of 21
of an investigation which have not been communicated to the individual in
question do not impact the inquiry into whether that individual is in custody.
See Stansbury v. California, 511 U.S. 318, 323-324, 114 S. Ct. 1526, 1529 (1994)
(“[U]nder Miranda ‘[a] policeman’s unarticulated plan has no bearing on the
question whether a suspect was ‘in custody’ at a particular time’; rather, ‘the
only relevant inquiry is how a reasonable man in the suspect’s position would
have understood his situation.’” (quoting Berkemer v. McCarty, 468 U.S. 420,
442, 104 S. Ct. 3138, 3151 (1984))). There is no evidence that B.A. was made
aware of Officer Tutsie’s investigation or of Officer Tutsie’s advice to remove
him from the bus. Had these actions been conveyed in some fashion to B.A.,
however, they would then become relevant to the analysis. See id. at 325-326,
114 S. Ct. at 1530 (noting that “[o]ur cases make clear, in no uncertain terms,
that any inquiry into whether the interrogating officers have focused their
suspicions upon the individual being questioned (assuming those suspicions remain
undisclosed) is not relevant for purposes of Miranda”) (emphasis added).
[28] Finally, we do not believe that J.D.B. warrants reversal in this matter. In that
case, J.D.B. was removed from class by a uniformed police officer and was
questioned by officers “for at least half an hour.” 564 U.S. at 265, 131 S. Ct. at
2399. Although the assistant principal was present during the questioning, the
record revealed that officers did most of the questioning and the assistant
principal’s role was only to encourage J.D.B. to “do the right thing” and
warning J.D.B. that “the truth always comes out in the end.” Id. at 266, 131 S.
Ct. at 2399. As noted, the questioning of B.A. was performed by Remaly in his
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 20 of 21
office. The Court’s holding in J.D.B. does not apply personally to Remaly who,
as a school administrator, was under no duty to advise B.A. of his
constitutional right against self-incrimination. See S.G., 956 N.E.2d at 676
(quoting Brandenburg, supra, at 734 (“It is well established in the caselaw
defining ‘interrogation’ and ‘custody’ that the two cannot exist without the
presence of a law enforcement officer.”)). Again, although we recognize that
circumstances may exist in which questioning by a school administrator
coupled with the presence of police officers require the officers to administer
Miranda warnings, we do not believe that these facts so required.
[29] We conclude that the juvenile court correctly denied B.A.’s motion to suppress
and admitted his statements made in response to Remaly’s questions.
Conclusion
[30] For the foregoing reasons, we affirm the juvenile court’s admission of B.A.’s
statements.
[31] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1606-JV-1474 | March 29, 2017 Page 21 of 21