No!

Considering the totality of the circumstances, a reasonable person in Mr. Hudson’s position would have understood that his movement was not restrained to the degree associated with a formal arrest and that he would have been free to leave. Therefore, he was not in custody for purposes of Miranda.

 

State v. Hudson

2022 – Ohio – 3253

Second District Appellate Court

2022 – Ohio – 3253

September 16, 2022

On July 8, 2020, Mr. Hudson was charged by way of complaint with two counts of voyeurism, each in violation of O.R.C. §2907.08(B), misdemeanors of the second degree, and two counts of nonconsensual dissemination of private sexual images, each in violation of O.R.C. §2917.211, misdemeanors of the second degree. The charges stemmed from allegations that Mr. Jaylen Hudson secretly video recorded a woman in her bathroom in a state of nudity on two occasions and then uploaded the videos to a pornographic website on the internet without her knowledge or permission.

On Thursday September 10, 2020, Mr. Hudson filed a motion to suppress, challenging statements Mr. Hudson made to Detective Harry Sweigart and the seizure and subsequent search of his cell phone. A hearing on the motion to suppress was held on January 14, 2021, with Det. Sweigart as the State’s sole witness.

Det. Sweigart testified that he had been a detective with the University of Dayton since 1995 and had been in law enforcement since 1978. Det. Sweigart explained that on November 6, 2019, S.D. [victim’s initials] contacted the University of Dayton police department stating that two videos of her were clandestinely taken during the 2017/2018 school year, while she was a student and lived in the University of Dayton housing community. The videos depicted her nude in her bathroom preparing to take a shower or immediately after getting out of the shower on two separate occasions. According to the search warrant that was introduced during the hearing, one video titled “Hot College Girl Dries off after Shower” was uploaded to Pornhub, a legally operated public pornographic website, on February 19, 2019. A second video titled “Hot UD college girl prepares for shower” was uploaded to Pornhub on August 24, 2019. According to S.D., she neither consented to the videos being taken nor to their being uploaded onto Pornhub. S.D. suspected that Mr. Hudson was involved, because he was her roommate’s boyfriend at the time the videos were taken.

As a result of the allegations, Det. Sweigart subpoenaed Pornhub’s records, which showed that the videos were uploaded by a person with the username Bluejay91 and an email of JaylenHudson23@yahoo.com. The IP address from which at least one of the videos was posted was located in Columbus, Ohio.

In his attempts to locate Mr. Hudson, on Thursday December 12, 2019, Det. Sweigart and a uniformed University of Dayton police officer, Officer John Key, went to Mr. Hudson’s residence in Columbus, but he was not home. Det. Sweigart spoke to Derrick Hudson, Mr. Hudson’s uncle, and Beverly Hudson, Mr. Hudson’s mother, both via telephone in his attempts to locate Mr. Hudson. They informed him that Mr. Hudson had been sick and in the hospital recently and Mr. Hudson’s mother provided Det. Sweigart with Mr. Hudson’s phone number. That same day, Det. Sweigart got in touch with Mr. Hudson via telephone and arranged to meet with him at Wright State University (WSU), where Mr. Hudson was attending as a graduate student. This case is instructive that just because someone is educated, does not indicate that he is smart.  Mr. Hudson was involved in a project that morning at the university and agreed to meet with Det. Sweigart when he was finished, around 12:30 p.m.; Mr. Hudson informed Det. Sweigart of the name of the building in which to meet. As a result, Det. Sweigart and Officer Key went to WSU to interview Mr. Hudson. Because they were at another university and Mr. Hudson’s uncle had contacted the school, a WSU police officer accompanied the University of Dayton officers to the building where Mr. Hudson had told Det. Sweigart to meet him. While waiting for Mr. Hudson to arrive, the WSU officer and Officer Key left to get coffee while Det. Sweigart waited for Mr. Hudson to arrive.

Around 12:30 p.m., Det. Sweigart observed Mr. Hudson coming up the steps to the second-floor lounge area where Det. Sweigart was waiting. After Det. Sweigart introduced himself and informed Mr. Hudson of the purpose of the interview, Mr. Hudson agreed to speak with Det. Sweigart. Behind the lounge area was a large unoccupied conference room which they agreed to use for the interview. The conference room had double glass doors that were unlocked and ceiling-height windows on two walls overlooking an outside parking lot. Although one door was initially open when Det. Sweigart and Mr. Hudson entered, Mr. Hudson asked to close the door, which he did.

Once they were both seated, Det. Sweigart informed Mr. Hudson that he was not going to arrest him and just wanted to talk. Mr. Hudson was not in handcuffs and, besides shaking hands, there was no physical contact during their entire interaction. Only Det. Sweigart and Mr. Hudson were present in the conference room, and Mr. Hudson was not blocked from exiting the doorway. Although Det. Sweigart had a service weapon on his person, it was on his hip covered by a jacket and Det. Sweigart never touched it, brandished it, or discussed having it. Even with all of THESE facts in evidence, Mr. Hudson would argue that this conversation was ‘custodial’.

After explaining to Mr. Hudson the details of the case, Det. Sweigart read Mr. Hudson his Miranda warnings verbatim from a printed pre-interview form. Mr. Hudson filled out the top portion of the form identifying his name and address, the date, time, and location, and then initialed next to each Miranda warning after Det. Sweigart read it out loud. At the end of the rights, Mr. Hudson signed his name indicating that the rights had been read to him and that he understood them. The bottom of the form included a waiver section that Mr. Hudson was asked to read to himself. Where there was a blank to indicate the number of years of schooling he had, Mr. Hudson wrote his name and then signed the form with two lines.

During the course of the interview, Mr. Hudson admitted that he had purchased a phone charger that had a video camera built into it that captured the two videos in question. He admitted that he had posted the videos on Pornhub but denied posting them anywhere else. Mr. Hudson advised that he did not have the camera anymore but that the videos were on his cell phone, which was sitting on the table in front of him during the interview.

After learning that the videos were on Mr. Hudson’s cell phone, Det. Sweigart informed Mr. Hudson that he would need to take the phone to remove the videos and make sure there was nothing else on there. He explained that “the best way to do it” is to sign a consent to search form so he could take the phone with him and have it analyzed.

Mr. Hudson asked if he could show Det. Sweigart the videos right then to delete them, but Det. Sweigart declined, explaining that the phone was evidence and he would have to take it to a lab guy. Det. Sweigart stated that he could not have anything deleted knowing that there was evidence on the phone. Thereafter, Det. Sweigart completed a consent to search form for the phone and Mr. Hudson signed it. When asked, Mr. Hudson provided his passcode to his phone and Det. Sweigart placed Mr. Hudson’s phone on airplane mode to prevent anything from being erased.

At the conclusion of the approximately one hour interview, Det. Sweigart left with Mr. Hudson’s cell phone; Mr. Hudson was not arrested. The following morning, Det. Sweigart obtained a search warrant for Mr. Hudson’s phone, which was granted. After the search warrant was signed, he took a copy of it along with Mr. Hudson’s phone to another officer to perform the search of the phone.

Beverly Mr. Hudson testified on behalf of Mr. Hudson at the motion to suppress hearing. Beverly stated that Detective Det. Sweigart had called her on December 12, 2019, looking for her son. She informed him that Mr. Hudson was not available and unable to talk because he had just been released from the hospital after an almost two-week long stay. She noted that she told Det. Sweigart that Mr. Hudson had lost 50 pounds and was on strong medication. Although Beverly lived in Atlanta, Georgia, she had come up to the hospital to be with Mr. Hudson and testified that he had been released from the hospital the day before the interview. She stated that Mr. Hudson was 24 years old, had graduated from the University of Dayton, and was getting a post-graduate Master’s degree at WSU. She was aware that Mr. Hudson had had a dissertation to present on December 12, 2019, but, according to her, he was still ill.

Prior to the motion to suppress hearing, Mr. Hudson filed a motion to dismiss one count of nonconsensual dissemination of private sexual images that was alleged to have occurred on February 19, 2019, which was prior to the effective date of the statute, March 22, 2019. At the hearing, the State did not object to the dismissal, and this count was eventually dismissed. After the suppression hearing, Mr. Hudson filed a motion to sever the remaining charges for trial.

Trial Court Motion to Suppress Mr. Hudson’s Statement is Overruled

On October 12, 2021, the trial court overruled Mr. Hudson’s motion to suppress in its entirety. Thereafter, the trial court denied Mr. Hudson’s motion to sever in its entirety. On December 2, 2021, Mr. Hudson entered a no contest plea to one count of voyeurism, and the remaining counts were dismissed. Mr. Hudson was found guilty by the court and sentenced to 90 days in jail, with all 90 days suspended, six months of probation, no contact with the victim, a $200 fine with $100 suspended, and court costs. Mr. Hudson was also ordered to register as a Tier I sex offender with registration annually for a period of 15 years.

Mr. Hudson filed a timely appeal and was granted a motion to stay his sentence pending appeal.

Motion to Suppress

In his second assignment of error, Mr. Hudson challenges the trial court’s

decision overruling his motion to suppress the statements he made to Detective Det. Sweigart during his interview. Mr. Hudson claims that his statements should have been suppressed because:

(1) They were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

(2) His Miranda waiver was not made knowingly, intelligently, and voluntarily.

(3) Even if Miranda did not apply, his statements were made involuntarily; and

(4) Detective Det. Sweigart ignored Mr. Hudson’s attempt to invoke his right to counsel. We find no merit to any of these arguments.

When are Miranda Warnings Required?

Miranda warnings are required only for custodial interrogations such that, “[U]ntil suspects are ‘in custody,’ they do not have a right to warnings under Miranda.” State v. Moody, 2012-Ohio-3390.  “The mere fact that an investigation has focused on a suspect does not trigger the need for Miranda warnings in noncustodial settings.” Minnesota v. Murphy, 465 U.S. 420, 431, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984).

Custody

 An individual is in custody when there has been a formal arrest or a restraint of freedom of movement such that a reasonable man would believe that he is under arrest.” State v. Wenzler, 2004-Ohio-1811.

What the Officer or Suspect Feels is Irrelevant

The subjective views of the interviewing officer and the suspect are

immaterial to the determination of whether a custodial interrogation was conducted.” In re L.G., 2017-Ohio-2781. “The inquiry whether a person is subject to custodial interrogation is an objective question, focusing on how a reasonable person in the suspect’s position would have understood the situation.” Id.

Reasonable Person Test

While not exhaustive, this Court has considered the following factors in applying this reasonable person test:

1) What was the location where the questioning took place-i.e., was the defendant comfortable and in a place a person would normally feel free to leave?
2) Was the defendant a suspect at the time the interview began?

3) Was the defendant’s freedom to leave restricted in any way?
4) Was the defendant handcuffed or told he was under arrest?
5) Were threats made during the interrogation?
6) Was the defendant physically intimidated during the interrogation?

(7) Did the police verbally dominate the interrogation?

8) What was the defendant’s purpose for being at the place where questioning took place?

9) Were neutral parties present at any point during the questioning?
10) Did police take any action to overpower, trick, or coerce the defendant into making a statement?

State v. Estepp, 1997 WL 736501 (Nov. 26, 1997)

The trial court found that Mr. Hudson’s interview did not amount to a custodial interrogation requiring that Mr. Hudson be Mirandized. We agree.

Application of Law to the Thursday December 12, 2019 Interview

Detective Det. Sweigart and Mr. Hudson mutually set up a time and location to meet at WSU, where Mr. Hudson was attending graduate school. Mr. Hudson voluntarily agreed to meet with Det. Sweigart after he was finished with a school event and informed Det. Sweigart in which building to meet him. Upon seeing Mr. Hudson walking up the stairs to where Det. Sweigart was waiting, Det. Sweigart introduced himself and asked Mr. Hudson if he would be willing to talk. They mutually agreed to talk in the unoccupied large conference room that had floor to ceiling windows on two of the walls. The glass doors to the conference room, while closed by Mr. Hudson himself, were not locked, and there was nothing physically preventing Mr. Hudson from being able to walk out of the room if he had wished to leave. Mr. Hudson never asked to leave and was not prevented from leaving at any time. Mr. Hudson was never handcuffed or physically restrained. For the majority of the interview, no one else was present in the conference room besides Det. Sweigart and Mr. Hudson. When the uniformed officers briefly appeared at the doorway, they did not participate in the interview in any way and promptly left after the detective provided his car keys for Officer Key to wait in the car.

Det. Sweigart testified that he did not expressly inform Mr. Hudson that he was free to leave, however, he explicitly told Mr. Hudson that he was not being arrested that day and testified that he had no intention of arresting Mr. Hudson that day. Notably, at the end of the approximately one-hour interview, Mr. Hudson was not arrested.

While we agree with the trial court that the detective verbally dominated the interview, we do not find this factor sufficient to transform the interview into a custodial interrogation. The United State Supreme Court has explained:
“[A] noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a “coercive environment.” Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him “in custody.” It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.  Oregon v. Mathiason, 429 U.S. 492, 495, (1977)

Was Miranda Required?

No!

Considering the totality of the circumstances, a reasonable person in Mr. Hudson’s position would have understood that his movement was not restrained to the degree associated with a formal arrest and that he would have been free to leave. Therefore, he was not in custody for purposes of Miranda. Because it was unnecessary to inform Mr. Hudson of the Miranda warnings, we need not consider whether Mr. Hudson knowingly, intelligently, and voluntarily waived his Miranda rights.

Did Mr. Hudson Request an Attorney when he asked “Should I talk to a lawyer or something?”

During the interview, Mr. Hudson asked Detective Det. Sweigart “Should I talk to a lawyer or something?” Det. Sweigart responded, “That’s up to you, but again, we can stop right now and you can talk to a lawyer. That changes the way I have to deal with it, you know?” Det. Sweigart testified that he did not understand Mr. Hudson to be asking for a lawyer and he did not intentionally cut off Mr. Hudson’s train of thought immediately thereafter. Mr. Hudson made no other statements during the interview indicating his desire to have counsel present or to cease talking.

If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Davis v. United States, 512 U.S. 452, 461-62, (1994).

Holding

Accordingly, Mr. Hudson’s second assignment of error is overruled.


Information for this case was obtained from State v. Hudson, 2022 – Ohio – 3253.

This case was issued by the Second District Appellate Court and is only binding in the following Ohio Counties: Champaign, Clark, Darke, Greene, Miami and Montgomery.

Lessons Learned:

  1. A law enforcement fundamental is the two-part test of Miranda v. Arizona, 384 U.S. 436 (1966) – the suspect must be in custody and interrogated. In this case Mr. Hudson was interviewed in a second-floor lounge at Wright State University.  He was not handcuffed, the door to exit was shut but not locked or blocked and Det. Sweigart did not threaten or intimidate him anyway.  Therefore, Mr. Hudson was not in custody and a Miranda warning was not required.  Yet, Det. Sweigart still read Mr. Hudson the Miranda warning.  The Second District Appellate court concluded that because Mr. Hudson was not in custody and the detective was not required to provide Miranda, no determination was made as to whether Mr. Hudson waived his right to speak to an attorney.
  2. Hudson also focused his appeal on his request for an attorney. Specifically, he asked “Should I talk to a lawyer or something?”.  This question almost mirrors the question Robert Davis asked on October 2, 1988 after he killed Keith Shackleford at the Charleston Naval Air Base.  Mr. Davis asked the Naval Investigator “Maybe I should talk to a lawyer?”.  The Naval Investigator, like Det. Sweigart, ignored the statement and kept on questioning.  Mr. Davis appealed his case to the U.S. Supreme Court which held on June 24, 1994 “If the suspect’s statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Davis v. United States, 512 U.S. 452, 461-62, (1994).  In the Davis decision the U.S. Supreme Court uses a double negative which is not the best way to articulate the meaning.  However, in practical application this means law enforcement has no duty to ask clarifying questions when the suspect is ambiguous.
  3. University of Dayton Detective Harry Sweigart should be highly commended for his command of investigative techniques and the technical application of the Miranda doctrine! Well done Det. Sweigart!

Post Script: For more articles on Miranda – Custodial Interrogation see:

September 2, 2022

Was the Officer Legally Permitted to Search Caetlynde’s Backpack Incident to her Arrest?

August 26, 2022

After a Suspect is Given Miranda and Requests an Attorney, Can Law Enforcement Continue to Question Him?

August 12, 2022

Can a suspect be Interviewed Without Miranda in a Mammoth Cave?

June 24, 2022

Can a Person Successfully Sue Law Enforcement for a Miranda Violation?

May 2, 2022

When Jeff Removed his Grill it Lead to a Traffic Violation but should his Statements be Suppressed as a Miranda Violation?

April 4, 2022

Were the Detectives Required to Mirandize Justin the Sexual Predator, while he Lay in a Hospital Bed?

March 21, 2022

Were Gary’s Self-Incriminating Roadside during a Traffic Stop require the Miranda Warning?

September 17, 2021

Was Mike Unlawfully Detained at Chewy?

August 28, 2021

Did Mr. Singh have an Abrupt and Inexplicable English Deficiency ONLY after he was given a Miranda Warning?

July 30, 2021

How Did a Chocolate Allergy have Relevance to Mr. Penn’s Mirandized Statements?

January 8, 2021

Was the Search of the Marijuana-Filled Chicken Coop Consensual?

June 15, 2020

Miranda – Both a Noun and Verb

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Robert H. Meader Esq.