[Cite as State v. Jirac, 2016-Ohio-8187.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 27003
Plaintiff-Appellant :
: Trial Court Case No. 15-CR-756
v. :
: (Criminal Appeal from
HASSAN O. JIRAC : Common Pleas Court)
:
Defendant-Appellee :
:
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OPINION
Rendered on the 16th day of December, 2016.
...........
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellant
V. GAYLE MILLER, 130 West Second Street, Suite 1624, Dayton, Ohio 45402
Attorney for Defendant-Appellee
.............
FAIN, J.
{¶ 1} The State appeals from an order of the trial court suppressing evidence.
The State contends that the trial court erred by suppressing statements made to the
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police, based on an incorrect conclusion that the defendant was in custody at the time he
was questioned before being advised of his constitutional rights. Defendant-appellee
Hassan Jirac has not filed a brief.
{¶ 2} We conclude that the trial court did not err in suppressing the evidence. The
State’s sole assignment of error is overruled, and the suppression order is Affirmed.
I. Interception of UPS Package Leads to Interrogation
{¶ 3} The trial court made the following findings in support of its decision to sustain
the motion to suppress:
I note that on October 21, 2013, and really unexplained fashion, a
large quantity of Cathinone, known by the nickname of khat, which I’m going
to use throughout the rest of this decision. A large quantity of that Schedule
I drug was intercepted in Lexington, Kentucky. In fact the amount of khat
that we are dealing with is nine kilos. Upon the interception of the khat in
Lexington, Kentucky, a decision was made to allow the khat to continue to
its destination at the Centerville, Ohio UPS office, located on State Route
725, here in Montgomery, Ohio, so that the person picking up the khat could
be intercepted.
In order to accomplish the interception, a group of officers was
assembled and placed in and around the Centerville UPS location. Special
Agent Richard Miller, who was, and perhaps still is, assigned to the range
task force was the lead investigator. Agent Miller, along with Montgomery
County Detective O’Connell were posted inside the UPS store to await the
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person who was going to pick up the khat. Mr. Jirac did arrived [sic] to pick
up the package containing the khat. Mr. Jirac was allowed to obtain
possession of the package, and to walk towards the UPS exit. Mr. Jirac,
however, was not allowed to leave the UPS store, as Agent Miller and
Detective O’Connell intercepted him before he was able to exit the store.
Agent Miller informed Mr. Jirac why he was being detained. Mr. Jirac, after
being informed of the reason for the detention, was taken through the store
and out the back door, so that Agent Miller could talk to Mr. Jirac in a more
private setting.
Mr. Jirac was informed that he was not under arrest, but as Agent
Miller conceded during examination, conducted by the Court, Mr. Jirac was
not free to leave. And had Mr. Jirac indicated he was not going to cooperate
and intended to simply walk away, Mr. Jirac would have been arrested.
Agent Miller’s plan, in any event, and understandably, was to gain
Mr. Jirac’s cooperation, so that the person who had hired Mr. Jirac to pick
up the khat could be identified, with the obvious goal being to move up the
so-called food chain. And I note that Mr. Jirac informed Agent Miller of the
name of the person for whom he had picked up the khat, and that he had
been paid the sum of $300 for that particular service. All of that information
was obtained [by] Agent Miller as a result of Mr. Jirac being questioned
about the circumstances under which he had arrived at the UPS store to
pick up the khat. And I note that this interview occurred without Mr. Jirac
being provided Miranda warnings.
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Mr. Jirac agreed to cooperate and he provided Agent Miller with
again the details of his involvement regarding the pick-up that had occurred.
Mr. Jirac, as part of his cooperation, made telephone calls to the person
who had hired him to pick up the khat, in the hope of creating a scenario so
that this person could be implicated and arrested. The attempt to do so,
however, failed primarily it seems because Agent Miller was not able to
obtain the cooperation of the Columbus Police Department. Evidently even
though we are dealing with nine kilos of this Schedule I drug, that was an
insufficient quantity for the Columbus Police Department to have sufficient
interest to be involved in the process.
At one point we know, based upon that which I heard during my
review of the audio tape, we know that Mr. Jirac was in the back of a van
and they were proceeding towards Columbus. But ultimately that all came
to a halt because again the Columbus Police Department was not willing to
provide cooperation to Agent Miller. And so ultimately Mr. Jirac was brought
back to a Montgomery County Sheriff’s Office sub-station and it was at the
sub-station that Mr. Jirac was ultimately provided his Miranda warnings and
interviewed once again by Agent Miller.
Agent Miller informed Mr. Jirac of his Miranda Rights using a pre-
interview form, which was marked and introduced into evidence at the
hearing as State’s Exhibit 1. Mr. Jirac waived his Miranda Rights and
provided a confirming statement of his involvement in the pick-up of the
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khat. And when I say confirming statement, he simply reiterated that which
had already been revealed during the previous contact and the previous
interview conducted by Agent Miller in the effort to obtain Mr. Jirac’s
cooperation upon his interception at the UPS store. Agent Miller upon
obtaining Mr. Jirac’s Miranda waiver told Mr. Jirac we are going to go over
“stuff we already talked about.” Additionally, Mr. Jirac at one point during
the Miranda interview, deviated from what he had said in the non-
mirandized interview with Agent Miller pointing out the discrepancy and then
chastising Mr. Jirac for the indicated discrepancy.
Ultimately, the interview ended. Mr. Jirac, it seems, at the end of the
interview complained of chest pains, resulting in his transport to the hospital.
Mr. Jirac obviously was released from the hospital. And upon his release
from the hospital he was not arrested. Agent Miller thereafter did contact
Mr. Jirac on an occasion or two concerning Mr. Jirac’s continued
cooperation. Evidently that did not lead to any further cooperation by
Mr. Jirac. And ultimately Mr. Jirac was indicted for the possession of the
khat. Again the nine kilograms that are at issue in this case.
These facts raise the following issues. Was Mr. Jirac in custody when
he was initially interviewed without being provided Miranda warnings? And
number two, was the mirandized interrogation of Mr. Jirac a so-called
interview first, mirandized later scenario triggering the suppression of the
statements Mr. Jirac made during the second mirandized interview?
Going into the first issue - - I want to go back to the facts just for a
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moment. I do want to note that as a final factual finding that between the
time that Mr. Jirac was intercepted leaving the UPS store and when he was
Mirandized and interviewed again by Agent Miller, that several hours had
passed. And during that time Mr. Jirac had been in the presence of Agent
Miller and other officers for a considerable period of time. It was also noted
that when Mr. Jirac was interviewed outside the UPS store, outside the back
door of the UPS store, we know that Agent Miller was there, and that there
were several other officers nearby who were part of the operation, which
led to Mr. Jirac being intercepted as he was attempting to leave the UPS
store with the quantity of khat that he had picked up.
Transcript pgs. 55-59.
II. The Course of Proceedings
{¶ 4} Jirac was indicted on one count of Aggravated Possession of a Controlled
Substance, a felony of the first degree, in violation of R.C. 2925.11(A). Jirac moved to
suppress the statements he made before he was given the warnings required by Miranda
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court
conducted a hearing on the motion to suppress, at which Special Agent Richard Miller
testified as the only witness.
{¶ 5} Based on the evidence presented, the trial court found that Jirac was in
custody at the time of the questioning and sustained the motion, after reviewing the
factors discussed in State v. Sell, 2d Dist. Montgomery No. 26458, 2015-Ohio-1940, ¶¶
15-18, State v. Gaddis, 2d Dist. Montgomery No. 24007, 2011-Ohio-2822, and State v.
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Estepp, 2d Dist. Montgomery No. 16279, 1997 WL 736501 (Nov. 26, 1997), including the
location of the questioning, whether the defendant was a suspect at the time of the
questioning, whether the defendant’s freedom to leave was restricted, whether the
defendant was told he was under arrest, whether threats or physical intimidation were
utilized, whether the police dominated the interrogation, the defendant’s reason for being
at the location where the questioning took place, and whether any neutral parties were
present at any point during the questioning. Applying these factors, the trial court found
that the questioning took place in surroundings where Jirac would not have been
comfortable or felt free to leave. At the time of questioning, Jirac was a suspect. Jirac’s
freedom of movement was restricted. Jirac was not handcuffed, was told he was not
under arrest, and no threats or physical intimidation were utilized. The court found that
the police did dominate the interrogation, with the goal of obtaining Jirac’s cooperation,
and no neutral parties were present. Jirac’s purpose of being at the UPS Store was to
pick up the package, and the purpose of going behind the store was to question Jirac
regarding the khat in his possession. The trial court further found that “though Mr. Jirac
was not tricked or coerced into making a statement, Agent Miller indicated to him that his
cooperation could be helpful regarding criminal charges relating to Mr. Jirac’s possession
off [sic] the khat.” T. at 65. This finding led the trial court to conclude that the officer’s
“statement regarding cooperation would have communicated to a reasonable person that
he was going to be arrested and charged for the possession of the controlled substance
he had just picked up.” T. at 65.
{¶ 6} Based on these facts, the trial court concluded, “[t]he Estep factors, though
not all pointing to a custody determination, lead in the Court’s mind, to the conclusion that
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when Agent Miller interviewed Mr. Jirac behind the UPS store, and as he interviewed him
throughout the course of the remaining hours until he was finally mirandized, a reasonable
person in Mr. Jirac’s situation would have concluded there was a restraint of his freedom
of movement to the extent associated with a formal arrest. He was in fact in custody, for
Miranda purposes.” T. at 65-66.
{¶ 7} The trial court also reviewed the case law applicable to the issue of whether
in-custody non-Mirandized admissions taint admissions made subsequent to the
administration of Miranda warnings, including our opinion in State v. Cook, 2d Dist.
Montgomery No. 24524, 2012-Ohio-111, citing Oregon v. Elstad, 470 U.S. 298, 105 S.Ct.
1285, 84 L.Ed.2d 222 (1985), and Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159
L.Ed.2d 643 (2004). The trial court explained its reasoning as follows:
The Seibert Court identified a series of relevant factors that bear on
whether Miranda warnings delivered midstream could be effective enough
to accomplish their object. One, the completeness in 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 second. Four, the
continuity of police personnel, and five, the degree to which the
interrogator’s questions treated the second round as continuance with the
first. Accordingly, in such a scenario, the post-Miranda warning statements
are inadmissible because the earlier and later statements are realistically
seen as part of a single unwarned sequence of questioning.
And so I’m going to go through those factors in this case. And though
we don’t know the full detail of Agent Miller’s pre-Miranda questioning, we
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know the questions produced in admission from Mr. Jirac that he had
traveled from Columbus in his cab to the UPS store to pick up the khat for
a person identified by Mr. Jirac during the course of Agent Miller’s interview,
and that Mr. Jirac’s fee for this service was $300.00.
Going to the second factor, the content of the two interrogations, the
pre-Miranda interrogation and the post-Miranda interrogation certainly
overlap. In fact as stated by Agent Miller in the mirandized portion of the
interview, he says basically we’re going to talk about the stuff we’ve already
talked about.
Going to the third factor, the timing and setting of the two interviews
reveals in essence once [sic] continuous interview. By the time Mr. Jirac
was Mirandized, he had been with Agent Miller and the other officers for a
number of hours. There had already been an interview where the details of
Mr. Jirac’s possession of the khat had been revealed. There had been this
effort for cooperation which failed. And finally, when the mirandized
statement ultimately occurred, it was at the end of all of that, and part of one
continuous interaction with the officers.
Going to the fourth factor, Agent Miller was the primary officer
involved in each interrogation.
And finally going to factor five, Agent Miller by stating in the post-
Miranda interview that “we are going to go over the stuff we already talked
about”, and by pointing out to Mr. Jirac the discrepancy between his initial
statement and his statement that he gave post-Miranda, that certainly
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reveals that the two interviews were in essence not two interviews, but one
continuous effort by Agent Miller, to obtain information from Mr. Jirac that
was in essence one continuous interview.
It is based upon this analysis concluded that Mr. Jirac’s post-Miranda
statements are so tainted by his pre-Miranda statements that the post-
Miranda statements must be suppressed. So all the statements will be
suppressed.
Transcript pgs. 68-70.
{¶ 8} From the order of the trial court suppressing Jirac’s statements, the State
appeals.
III. Standard of Review
{¶ 9} Appellate review of a trial court's decision regarding a motion to suppress
evidence involves mixed questions of law and fact. When ruling on a motion to suppress
evidence, a trial court assumes the role of trier of fact and is in the best position to resolve
questions of fact and to evaluate the credibility of witnesses. State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Consequently, an appellate court must
accept the trial court's findings of fact if they are supported by competent, credible
evidence. Id. Accepting the facts as true, the reviewing court then must independently
determine, without deference to the trial court, whether the trial court properly applied the
substantive law to the facts of the case. Id. Therefore, an appellate court reviews the
trial court’s application of the law to its factual findings based on a de novo standard of
review. State v. Belton, Ohio Supreme Court Slip Opinion No. 2016-Ohio-1581, ¶ 100.
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IV. Based Upon the Trial Court’s Findings, which Are Supported by Evidence in
the Record, the Trial Court Did Not Err in Concluding that Jirac’s Statements
Were Made During a Custodial Interrogation
{¶ 10} The State argues that Jirac’s statements were made during a consensual
encounter, and therefore no Miranda warnings were necessary prior to questioning. The
State claims that the trial court incorrectly determined that Jirac was in custody at the time
he was initially questioned at the UPS store. We agree with the findings of the trial court
that Jirac’s statements at the UPS store were made during a custodial interrogation,
before he was given Miranda warnings. We recently reviewed the factors to consider to
determine if a defendant is in custody for Miranda purposes as follows:
“The procedural safeguards prescribed by Miranda apply only when
persons are subjected to ‘custodial interrogation.’ ” State v. Thomas, 2d
Dist. Montgomery No. 20643, 2005-Ohio-3064, ¶ 27, citing Miranda v.
Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
“ ‘Custodial interrogation’ means questioning initiated by the police after the
person has been taken into custody or otherwise deprived of his freedom to
the degree associated with a formal arrest.” (Citations omitted.) State v.
Vineyard, 2d Dist. Montgomery No. 25854, 2014-Ohio-3846, ¶ 32.
“In order to determine whether a person is in custody for purposes
of receiving Miranda warnings, courts must first inquire into the
circumstances surrounding the questioning and, second, given those
circumstances, determine whether a reasonable person would have felt that
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he or she was not at liberty to terminate the interview and leave.” State v.
Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 27, citing
Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383
(1995). “Once the factual circumstances surrounding the interrogation are
reconstructed, the court must apply an objective test to resolve ‘the ultimate
inquiry’ of whether there was a ‘ “formal arrest or restraint on freedom of
movement” ’ of the degree associated with a formal arrest.” Id., quoting
California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d
1275 (1983), quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct.
711, 50 L.Ed.2d 714 (1977).
“The factors a court should consider in applying this reasonable
person test include whether the encounter takes place in surroundings that
are familiar to the suspect; the number of law enforcement officers present,
as well as their conduct and demeanor; the degree of physical restraint
imposed; and the duration and character of the interrogation.” (Citation
omitted.) State v. Farrell, 2d Dist. Miami No. 99-CA-24, 1999 WL 812249,
*3 (Oct. 8, 1999). We note that “a police officer's subjective intent to arrest
a suspect is immaterial to the issue of whether the suspect is in custody for
Miranda purposes, unless and until that intent is communicated to the
suspect.” (Citation omitted.) State v. Cross, 2d Dist. Montgomery No.
25838, 2014-Ohio-1534, ¶ 13. Rather, the issue is whether a reasonable
person in the suspect's situation would have understood that he was in
custody. Id.
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Individuals are not “in custody” for purposes of Miranda during a
typical investigatory detention such as a routine traffic stop. State v. Cundiff,
2d Dist. Montgomery No. 24171, 2011-Ohio-3414, ¶ 60, citing Berkemer v.
McCarty, 468 U .S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). “An
individual is subject to an investigatory detention when, in view of all the
circumstances surrounding the incident, by means of physical force or show
of authority, a reasonable person would have believed that he was not free
to leave or was compelled to respond to questions.” (Citations omitted.)
State v. Hardy, 2d Dist. Montgomery No. 24114, 2011-Ohio-241, ¶ 34.
During an investigatory detention, “the officer may ask the detainee a
moderate number of questions to determine his identity and to try to obtain
information confirming or dispelling the officer's suspicions” without the
need to first advise the detainee of his Miranda rights. Berkemer at 439–
440. “However, if the individual is, during the course of the detention,
‘subjected to treatment that renders him “in custody” for practical purposes,
he will be entitled to the full panoply of protections prescribed by Miranda.’ ”
State v. Keggan, 2d Dist. Greene No. 2006 CA 9, 2006-Ohio-6663, ¶ 31,
citing Berkemer at 440. (Other citation omitted.)
State v. Sell, 2d Dist. Montgomery No. 26458, 2015-Ohio-1940, ¶¶ 15-18. See also State
v. Brown, 2d Dist. Montgomery No. 26937, 2016-Ohio-4973, ¶ 9.
{¶ 11} We have also considered factors such as “ ‘the location of the interview
and the defendant's reason for being there, whether the defendant was a suspect,
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whether the defendant was handcuffed or told he was under arrest or whether his freedom
to leave was restricted in any other way, whether there were threats or intimidation,
whether the police verbally dominated the interrogation or tricked or coerced the
confession, and the presence of neutral parties.’ ” State v. Zan, 2d Dist. Montgomery No.
24600, 2013-Ohio-1064, ¶ 17, quoting State v. Hatten, 186 Ohio App.3d 286, 2010-Ohio-
499, 927 N.E.2d 632, ¶ 50 (2d Dist.).
{¶ 12} The trial did consider the totality of the circumstances, and reached its
conclusion based on the objective test whether a reasonable person, under similar
circumstances, would have understood that he was in custody at the time of the
interrogation. The trial court relied on evidence in the record to find that, by show of
authority, Jirac was detained from leaving the UPS Store, was told that the package
contained illegal substances, was directed to the back parking lot so that he could not
flee, and was then questioned about the drugs in the presence of multiple officers. We
agree that these factual findings are supported by competent, credible evidence and
support a conclusion that the statements made by Jirac were made during a custodial
interrogation, triggering his Miranda rights.
{¶ 13} We also agree that the trial court properly applied the law applicable to
statements made after Miranda warnings are given that confirm statements made before
the Miranda warnings were given. In State v. Cook, 2d Dist. Montgomery No. 24524,
2012-Ohio-111, and State v. Zan, supra, we have discussed the precedent established
by the Supreme Court of the United States regarding the admissibility of statements made
in successive interrogations when Miranda warnings are not given until the second phase
of the interrogation. Id., citing Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.E.2d
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222 (1985) and Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.E. 2d 643 (2004).
{¶ 14} As we explained in Cook, supra, “[t]he Elstad Court held that a suspect who
has once responded to unwarned yet uncoercive questioning is not thereby disabled from
waiving his rights and confessing after he has been given the requisite Miranda warnings.”
Cook at ¶ 23. However, in the more recent decision in Seibert, supra, the Supreme Court
held that post-warning statements are inadmissible when the Miranda warning does not
effectively advise the suspect that he has a real choice about giving an admissible
statement that he has essentially already given. Cook at ¶ 18. The Supreme Court of
Ohio has distinguished the two cases, finding that “Elstad and Seibert stand on opposite
sides of the line defining where prewarning statements irretrievably affect postwarning
statements. Still, that line cannot be said to be bright or sharply defined.” State v. Farris,
109 Ohio St.3d 519, 849 N.E.2d 985, 2006-Ohio-3255, ¶ 22.
{¶ 15} In Farris, the court discussed factors to consider in making the decision
whether an intermediate Miranda warning can be sufficient, including “the 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.” Id. at ¶ 28. In Zan, supra, the determinative
factor for finding that the defendant’s post-Miranda statements were voluntarily given was
the consensual nature of the first interrogation. We conclude that the trial court properly
considered the evidence in the record that Jirac’s initial encounter with the police resulted
in a custodial interrogation at the UPS store, before any discussion of his Miranda rights,
that the same person conducted both pre- and post-Miranda interviews, and that the
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interrogator treated the second interrogation as continuous with the first by asserting at
the outset that it was designed to review what had already been discussed, and by
clarifying any discrepancies in the two statements by asking Jirac to affirm the specific
statements he initially made in the first interrogation. Therefore, applying the elements
set forth in Farris, supra, we agree with the trial court that a defendant in similar
circumstances reasonably would not believe after being given a Miranda warning that he
had any other choice but to affirm the statements he had already made to the police
before that warning. Since Jirac’s post-warning statements were not the result of an
informed, voluntary choice to waive his rights, the statements are inadmissible, and the
trial court properly sustained the motion to suppress.
V. Conclusion
{¶ 16} The State’s sole assignment of error having been overruled, the order of the
trial court suppressing evidence is Affirmed.
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FROELICH, J., concurs.
HALL, J., dissenting:
{¶ 17} In my opinion, although the record supports the facts determined by the trial
court, the resulting legal conclusion should be that when Jirac was questioned at the UPS
store, a reasonable person in his situation would not believe he was in custody and the
encounter was not a custodial interrogation. Jirac was told he was not under arrest and
was not led to believe that he would be arrested, he was not in custody or restrained from
freedom of movement, and he had expressed his voluntary decision to cooperate, without
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coercion or complaint. The trial court indicated that Special Agent Miller admitted Jirac
was not free to leave and would have been arrested had he attempted to flee. However,
the subjective intent of the officer is not relevant in determining whether a defendant was
in custody. State v. Cundiff, 2d Dist. Montgomery No. 24171, 2011-Ohio-3414, ¶ 57.
Because I conclude a reasonable person, under similar circumstances, would have
understood that he was not in custody at the time of the interrogation, Jirac was not
subjected to a custodial interrogation and Miranda rights were not required. Therefore,
the statements made by Jirac at the UPS store should not be suppressed.
{¶ 18} Based on the conclusion that Jirac’s statements made at the UPS store
should not be suppressed, I believe we do not need to decide whether Jirac’s post-
Miranda statements were tainted by his pre-Miranda statements. If the pre-Miranda
statements were not unlawfully obtained, there is no taint to affect the post-Miranda
statements and they too should be admissible.
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Copies mailed to:
Mathias H. Heck, Jr.
Michele D. Phipps
V. Gayle Miller
Hon. Michael Tucker