What’s On Their Minds: Is Questioning in the Front Seat of a Police Cruiser a Custodial Interrogation? City of Cleveland v. Benjamin Oles.

Update: On July 19, 2017, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

“So, he’s not free to leave. Why is he (Oles) not in custody at that point?”

Justice O’Neill.

On March 1, 2017, the Supreme Court of Ohio heard oral argument in the case of City of Cleveland v. Benjamin Oles, 2016-0172 and 2016-0282. The case was accepted as a jurisdictional appeal and on conflict certification to determine whether Miranda warnings are required for questioning of an individual in the front seat of a police cruiser, and the cases were consolidated.  The exact question certified is “In the course of a traffic stop, does the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution require a law enforcement officer to provide Miranda warnings to a suspect who is removed from his vehicle and placed in the front seat of a police vehicle for questioning?”

Case Background

On September 19, 2014, Lt. Eric Sheppard of the Ohio State Highway Patrol, saw a vehicle cross marked lanes, a traffic infraction. He turned on his lights and sirens and initiated a traffic stop with the driver, Benjamin Oles.

During the stop, Oles did not appear glassy-eyed, nor was he slurring his speech, but the trooper did note that Oles appeared to be “very slow and deliberate” in his actions. While standing next to the vehicle, the trooper smelled alcohol.  The trooper directed Oles to the front seat of his police cruiser to determine if the odor was originating from Oles’ mouth or from the car.

When they entered the cruiser, the trooper did not Mirandize Oles, but continued to question him. While in the cruiser the trooper confirmed the odor was coming directly from Oles, who admitted to drinking four mixed drinks while at the wedding. After making these incriminating statements, Oles was given and failed standard field sobriety tests. The trooper then arrested Oles for operating a vehicle while intoxicated.

Oles moved to suppress the statements made in the cruiser and the subsequent field sobriety test results. His motion was granted by the trial court, which found that Oles’ Miranda rights had been violated.

The City of Cleveland (“Cleveland”) appealed this ruling, and the Eighth District affirmed the motion to suppress. The court held that a reasonable person ordered into a police cruiser would not believe he or she was free to leave.

Read the oral argument preview of the case here.

Key Precedent

R.C. 4511.19 (Operating vehicle under the influence of alcohol or drugs – OVI.)

U.S. Constitution, Amendment V (“No person . . . shall be compelled in any criminal case to be a witness against himself.”)

Ohio Constitution, Article I, Section 10 (“No person shall be compelled, in any criminal case, to be a witness against himself.”)

Miranda v. Arizona, 384 U.S. 436 (1966) (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of the procedural safeguards effective to secure the privilege against self-incrimination.”)

Berkemer v. McCarty, 468 U.S. 420 (1984) (“Persons temporarily detained pursuant to [traffic] stops are not ‘in custody’ for the purposes of Miranda.” This protection is not triggered until a “suspect’s freedom of action is curtailed to a degree associated with formal arrest.”)

State v. Farris, 2006-Ohio-3255 (Finding motorist detained during traffic stop was  in custody when he made his pre-Miranda statements, and that his post-Miranda statements were inadmissible.“The only relevant inquiry in evaluating whether a custodial-interrogation occurred is “how a reasonable man in the suspect’s position would have understood his situation.”’)

Strongsville v. Kessler, 8th Dist. Cuyahoga No. 71600, 1997 WL 476831 (Aug. 21, 1997) (Routine traffic stops, even when the driver is detained during roadside questioning, do not meet the threshold of a custodial interrogation and therefore do not require Miranda warnings.)

Cleveland v. Reese, 2014-Ohio-3587 (8th Dist.) (Reasonable suspicion is all that is required for admission of field sobriety tests.)

Rocky River v. Brenner, 2015-Ohio-103 (8th Dist.) (The standard for conducting an OVI investigation is “reasonable suspicion” of intoxication based on “specific and articulable facts” that an individual was exhibiting clear symptoms of intoxication.)

Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52 (1964); (The independent source doctrine: if illegitimate evidence arose from a wholly independent source it can still be admissible.)

State v. Perkins, 18 Ohio St.3d 193 (1985) (“Illegally obtained evidence is properly admitted in a trial court proceeding once it is established that the evidence would have been ultimately or inevitably discovered during the course of a lawful investigation.”)

At Oral Argument

Arguing Counsel

Jonathan L. Cudnick, Assistant City Prosecutor, for Appellant City of Cleveland

Daniel T. Van, Assistant Prosecuting Attorney, Cuyahoga County, for Amici Cuyahoga County Prosecutor’s Office and Ohio Prosecuting Attorneys Association, in support of City of Cleveland

Joseph C. Patituce, Patituce & Associates, North Olmstead, for Appellee Benjamin Oles

City of Cleveland’s Argument

The city prosecutor shared his time with counsel for amici, Cuyahoga County Prosecutor’s Office and Ohio Prosecuting Attorneys Association.

City’s Argument

The certified question should be answered in the negative.

In any routine traffic stop, a person does not feel free to leave. If an individual is placed in the front seat of a police cruiser, that fact alone does not convert a routine traffic stop into a custodial interrogation, or trigger the Miranda warnings. While such an encounter is not friendly, it does not rise to the level of custodial interrogation. It would be better characterized as investigative questioning. In this case, the driver was not in handcuffs, and his keys were not taken from him. Those factors would be more suggestive of a custodial interrogation. Oles was detained while being questioned in the cruiser, but that was not a custodial interrogation. He was not in custody until after the field sobriety test.

The Eighth District incorrectly extended the holding in State v. Farris to this case. The facts in Farris and this one differ significantly in that in Farris the stop was extended, there was a search of the vehicle, and it was not reasonably related to the traffic stop. Here, the questioning was a reasonable extension of the traffic stop. An officer has the right to investigate further if it is reasonably related to the traffic stop.

Whether or not a person is in custody is situation based, and involves more than just placement in the front seat of a police cruiser. It is a factor-based analysis. Other factors include the time of day, roadside conditions, how minimal the intrusion was, the length of the questioning, whether the encounter is combative or intimidating, and the extent of any pressure to answer questions. There was no custodial interrogation in this case.

Amici’s Argument

The Eighth District incorrectly held that the only fact that is dispositive is whether the driver was in the front seat of the cruiser. There is no bright line rule in a situation like this one. Miranda is evaluated under a totality of the circumstances. The fact that the driver is in the front seat during a routine traffic stop is not dispositive under Miranda.

It doesn’t matter what the trooper subjectively believed. The question is did the driver, as a reasonable person, feel not just that he was not free to leave, because of course being in the front seat of a police cruiser can be intimidating and uncomfortable and inconvenient, but it is not custodial. The relevant inquiry is did the driver reasonably feel that he was under arrest? That he was being indefinitely detained? The Eighth district got it wrong by looking at the fact that the driver was in the front seat of the cruiser as being dispositive. The certified question should be answered in the negative.

Oles’ Argument

The court could resolve this case in two ways. It could simply answer the certified question in the affirmative, although the law does not support the idea that anybody that is placed in a cruiser needs to be Mirandized. There are many situations where an individual stopped for speeding might be placed in a cruiser and asked his or her name. But the certified question used the word “suspect, ” and in this case Oles was a suspect, not just in the marked lines violation, but also in the OVI, according to the trooper.

This case is very different from Berkemer v. McCarty. In that case, the defendant had been removed from his vehicle, was physically on the side of the road for questioning, was staggering and falling over drunk, and was visibly impaired. Being on the side of the road can be seen as a neutral space. If a person is still in his car, eventually he knows he will be able to leave. But removing someone from the side of the road into a police cruiser is transformative. Whether the person is in the front or the back is just a matter of degree.

In this case, while Oles was walking in a slow and deliberate manner, there was no swaying or staggering. The trooper testified he was looking for signs of impairment, that Oles was not free to leave, and if he had, he would have been arrested. The trooper took Oles’ license, insurance and registration before he placed him in the cruiser. The trooper described no slurred speech, Oles was not confused, not uncooperative, listened to and followed orders. There were no signs of impairment other than the odor of alcohol and the marked lane violation. To get to the field sobriety testing, the trooper needed more evidence, which is why the admission to consuming four mixed drinks at the wedding was so incriminating. Oles was never told he did not have to answer that question.

This case falls squarely under Farris. Oles was placed in the cruiser to be interrogated. Getting into the cruiser was not voluntary. The trial judge correctly found that the only reason to do this was to get to the field sobriety tests. The court needs to reaffirm or clarify that Farris is not a factor-only test, it is a totality of the circumstances test. Alternatively the court could find that a suspect should be fully Mirandized before being questioning inside a confined police cruiser.

As to the independent source doctrine, that argument was never made to the court of appeals, and is therefore forfeited.

What Was On Their Minds

Investigative Questioning or Custodial Interrogation?

By placing this individual in the front seat of a car, is that not a custodial interrogation, asked Chief Justice O’Connor? Was the defendant free to leave that vehicle? The trooper testified he wouldn’t have allowed Oles to leave the car. And that’s not in custody?

Is there a difference between the front seat and the back seat of the cruiser, asked Justice O’Neill? Is the state asking the court to make a distinction between investigative questioning and custodial interrogation? Doesn’t that just ignore the fact that the real standard is, did this individual feel he was free to refuse to answer the officer’s questions, get out of the cruiser, and return to his own car? Is there a distinction between a Terry stop,  where an officer stops someone on the sidewalk and starts asking questions, and here, where the person’s location is being directed by the officer, is that legally significant?

What would make this a custodial interrogation, asked Justice O’Donnell? Was the questioning in the front seat an interrogation?

Is it the state’s position that there is no difference between standing outside a car questioning someone, and putting him in the front seat of a police car and asking him the same questions, asked Justice Fischer?

The U.S. Supreme Court has distinguished between situations where a person is are not free to leave but is not in custody for purposes of Miranda, commented Justice DeWine. Is the question for Miranda purposes whether you are free to leave?  In a Terry stop a person is not free to leave but the Court has held that is not a custody for Miranda purposes, he noted. Later, he commented that if a person is being placed in a cruiser simply to be asked questions, it seemed to him like straightforward investigative detention. Why was what happened to Oles not simply an investigative detention that does not require Miranda?


Was the driver given Miranda warnings before the questioning, asked Justice O’Donnell? When would Miranda be triggered so as to apprise the driver of a vehicle that any statements made could be used against him? (answer from the city prosecutor: after the conclusion of the field sobriety testing). The response to the question how much did you have to drink was four mixed drinks at the wedding. Is that an incriminating statement? There was no Miranda warning, but the officer attempted to secure that information? Was that still part of the routine questioning? Was that an unfair question without Miranda warnings?

Where in the Ohio Constitution do we find Miranda rights, asked Justice DeWine?

What if the trooper had simply approached the driver while still in his car and asked if he had been drinking that night, asked Chief Justice O’Connor? But taking him out of the car and putting him in the front seat of the cruiser and asking him the same questions is a constitutional violation?

Justification for Field Sobriety Tests

When the defendant was first pulled over, there was no reason at that point to ask for any field sobriety testing—it was only after the questioning in the front seat that the officer determined that there would be field sobriety testing done, noted Justice O’Donnell. Why was it necessary to put the defendant in the front seat of the police vehicle? But for the interrogation in the front seat of the vehicle, was there reasonable suspicion to administer the field sobriety test? Had the defendant been told he had the right to remain silent he may not have answered the question about how much he had had to drink, and there may not have been any field sobriety test?

Could the odor of alcohol come from alcohol spilled inside the car, asked Chief Justice O’Connor?

Farris: How Would A Reasonable Person in Oles’ Position Understand His Situation?

Would a reasonable person, being detained in the front seat of a cruiser, feel that they could leave, asked Justice Fischer?

Did the defendant know the difference between being in custody and being detained, asked Chief Justice O’Connor?

Isn’t the test whether or not someone is in custody, regardless of whether they have done the field sobriety test, asked Justice DeWine?

The Proper Test Here

Is the court being asked to soften the standard for being in custody here, asked Justice O’Neill? The individual doesn’t need to know about his right to remain silent? We are all in agreement that Oles was not free to leave the front seat of the cruiser, yet the state wants the court to write that that is not custody?

Farris imposes a test, if you don’t feel free to leave, then you are in custody and must be Mirandized, commented Justice French. Does the state take issue with that test? What should the test be if it is not whether a person feels free to leave?

What about Berkemer v. McCarty, asked Justice DeWine? There’s a lot more in that case than simply whether or not someone felt that they were in custody. It looked at it looked at a whole variety of circumstances—must the court look at all those circumstances? Isn’t the proper test not if a person feels free to go, but whether a reasonable person would believe he was in custody? Should the court write a bright line rule that anyone seated in a car who is under investigation, being asked questions, is in custody?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for Defendant Oles, but not unanimously. The test set forth in Farris is, “The only relevant inquiry in evaluating whether a custodial-interrogation occurred is “how a reasonable man in the suspect’s position would have understood his situation.”’ I think a majority of the justices will find that Oles reasonably thought he was in custody. Justices O’Donnell and O’Neill in particular seemed to feel that the questioning of Oles in the front seat of the cruiser was custodial, rather than investigatory under these facts, and the Chief seemed leaning that way. Also, the trial court is entitled to deference in its findings on this point.

Justice O’Donnell was particularly concerned that the questions about the amount Oles had had to drink elicited answers that were clearly self-incriminatory, and provided the justification for the field sobriety tests, because other than the odor of alcohol and walking deliberately, there were no other indicia of drunkenness. Justice O’Neill wasn’t buying the idea of investigative interrogation at all. He saw custody, pure and simple.

Interestingly, in Farris, authored by now retired Justice Pfeifer, the court held that Article I, Section 10 of the Ohio Constitution provides greater protection against self-incrimination that the Fifth Amendment to the U.S. Constitution, and excluded evidence seized as the result of unwarned statements.  But no argument for greater protections under the Ohio Constitution was really developed at oral argument, even though the state constitutional issue is part of the certified conflict question.

It’s not clear to me whether the court will just answer the certified question in the affirmative, or whether do as Oles’ counsel alternatively suggested and find that Farris is a totality of the circumstances test rather than a factor-based analysis as the prosecutors urged, and in this case those circumstances point to custodial interrogation.   The court might not want to go so far as to find that any suspect (that’s the word used in the certified question) placed in the front seat of a police must be Mirandized, although as defense counsel suggested, such a bright-line rule might make a police officer’s job easier.

Justice DeWine seemed most skeptical of the defense argument, believing there were many permissible detainments that are short of custodial interrogations. He seemed to feel that this was just a routine traffic stop which did not rise to the level of custodial interrogation.

This was a very spirited argument, and one in which the justices were particularly hard in their questioning of the city prosecutor.

To Student Contributor Jefferson Kisor

Throughout this argument, the City of Cleveland never gave a palatable answer as to why the questioning had to be conducted in the cruiser instead of outside Mr. Oles’ vehicle. Several justices either commented or questioned counsel on this issue. Justice O’Neill, in particular, appeared to be unsatisfied with the rationale offered:

“He was not free to leave. . . And you want us now to write that that is not custody?”

On the other hand, counsel for Oles, Mr. Patituce, did explain the rationale behind the officer’s decision – it was to create a favorable situation. At this point in the investigation, Mr. Oles was not visibly impaired. The only evidence the officer had to conduct field sobriety tests was (1) the traffic violation and (2) the odor of alcohol; and that was not enough. The need to identify the source of the odor was a pretext for the ultimate goal of conducting an interrogation in a confined police vehicle. That interrogation resulted in Mr. Oles making inculpatory statements.

Mr. Patituce was very effective in explaining the significance of being ordered into a police cruiser. He admitted that traffic stops are never comfortable or convenient experiences, but each transition away from an individual’s own vehicle comes one step closer to breaching the threshold established by Berkemer and Farris. This analogy continued with the roadside area (AKA the “neutral zone,”) and ended inside the police cruiser where a reasonable person would no longer believe they were free to go. More importantly, this person would likely feel compelled to answer the questions asked. After all, “everyone knows. . . the way you go off to jail after being arrested is through the cruiser” (Mr. Patituce). Common-sense cannot and should not be ignored in this analysis.

Unfortunately, there was little discussion by either side about the independent source doctrine, which makes it anyone’s guess. I do think there is a sufficient basis for finding for Mr. Oles in this respect, especially since any other “independent” evidence to support impairment was lacking (e.g. no slurring speech or falling over himself). Of course, this issue could also simply be considered to have been waived by the City of Cleveland. However, I believe that the court will answer the certified question in the affirmative and affirm that it was improper for the officer not to Mirandize Mr. Oles prior to questioning inside of the police cruiser.


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