The suspect admitted to paying his passenger $23 for oral sex and what followed was an arrest, conviction and appeal.
Mr. Olan voluntarily participated in the brief questioning and was not subject to the inherently compelling pressures of a custodial situation and does not allege that the officers were threatening, coercive, displaying weapons, or physically restraining him.
State v. Olan
2024 – Ohio – 1257
First District Appellate Court
Hamilton County, Ohio
April 3, 2024
Mr. Gustavo Olan was charged with engaging in prostitution for paying a woman $23 for oral sex. Mr. Olan pled not guilty and filed a motion to suppress all statements he made to the officer contending that he was in custody when he made the statements and should have been given proper Miranda warnings before he was questioned.
Parked Wrong Side of the Street Leads to Passenger’s Arrest
At the hearing on the motion, Officer Shideler, with the Cincinnati Police Department, testified that he was patrolling near Mansion and Kinsington Avenues when he saw a car turn left on Kinsington, drive to the left of an oncoming vehicle, and park on the wrong side of the street. Officer Shideler parked his cruiser behind Mr. Olan’s vehicle. Officer Buck drove next to the vehicle and spoke to the female passenger. When Officer Buck determined that the passenger had outstanding warrants, he arrested her.
Mr. Olan and his wanted female passenger were stopped here at Mansion Avenue and Kinsington Place in the Price Hill section of Cincinnati.
Language Barrier
After the female passenger was arrested, Officer Shideler approached the passenger window and spoke with the driver of the vehicle, Mr. Gustavo Olan. When Officer Shideler asked him for identification, he realized there was a language barrier. Mr. Olan handed his passport to Officer Shideler. When Officer Shideler asked Mr. Olan for the vehicle paperwork, Mr. Olan stepped out of the vehicle, leaving the keys in the ignition. Mr. Olan raised his hands briefly, and a third officer, standing on the driver’s side of the vehicle, asked him to return to the vehicle. Mr. Olan remained in his car with the window rolled up while Officer Shideler checked his identification.
Officer has a Gut Feeling Prostitution is Afoot
Officer Shideler carried the passport to his cruiser to run Mr. Olan’s name through his computer database to check for warrants and any other available information. While Officer Shideler was checking Mr. Olan’s identification, Officer Buck approached his window and told him that the female passenger did not know Mr. Olan. Officer Shideler looked at the female’s criminal history and learned that she had an extensive history of prostitution. Both officers suspected that Mr. Olan and the passenger had engaged in prostitution. Both believed that the female passenger was unlikely to admit to anything, and that “the John’s” are more likely to admit to it.
Translator App is Used to Communicate a Mouthful of Transparency
Engaging in Prostitution with a Two Dollar Discount
Officer Shideler walked back to Mr. Olan’s car and used a Google translate app to ask for the vehicle’s paperwork. Mr. Olan stepped out of his car, on his own accord, and walked to the rear of the vehicle, pointed at the license plate, indicating that he had no paperwork. Mr. Olan’s vehicle had a Kentucky temporary tag, so Officer Shideler could not access the vehicle registration. Officer Shideler used the app to ask Mr. Olan if the woman was a prostitute, and Mr. Olan smirked and responded, “Maybe.” Officer Shideler asked Mr. Olan how much he paid her for oral sex, and Mr. Olan said $25 then changed the amount to $23. When asked where the oral sex occurred, Mr. Olan said in the parking lot of his house. Officer Shideler arrested him for Engaging in Prostitution.
Miranda Custody?
Officer Shideler further testified that Mr. Olan freely spoke with him. Officer Shideler did not place him in handcuffs or in his cruiser, pat him down, or draw his weapon. They were parked on a residential street.
During cross-examination, Officer Shideler confirmed that two other officers were present, and each arrived in separate cruisers. Excerpts of Officer Buck’s and Officer Shideler’s body-camera videos were played in court. As reflected in the trial transcript, only excerpts of Officer Shideler’s and Officer Buck’s body-camera videos were relied upon by the trial court in rendering its decision. Although the disc admitted into evidence contained the full body-camera recordings of Officer Shideler and Officer Buck and a third video that was not played during the motion-to-suppress hearing, defense counsel identified for the record the excerpts played in court by referencing the time stamps of the portions that were played.
Mr. Olan voluntarily responded to Officer Shideler’s questions and admitted to paying the woman for oral sex.
Mr. Olan played the portion of Officer Buck’s video that showed the passenger’s arrest and Officer Buck explaining the car was parked on the wrong side of the road. The excerpts from Officer Shideler’s video depicted the initial interaction with Mr. Olan. When Officer Shideler asked for identification, Mr. Olan responded, “passport,” and reached into the center console to retrieve the passport. The trial court viewed Officer Shideler’s conversation with Officer Buck and Officer Shideler’s questioning of Mr. Olan. Officer Shideler spoke into the translator app, “Do you have paperwork for the car?” Mr. Olan read the message and responded, “It’s new one, the dealer, no, no.” Mr. Olan walked to the rear of the truck and pointed to the temporary tag. For the next four-and-a-half minutes, the two communicated back and forth using the translator app. Mr. Olan voluntarily responded to Officer Shideler’s questions and admitted to paying the woman for oral sex.
Officer Shideler testified that Mr. Olan was not free to leave during the traffic investigation. Officer Shideler decided to arrest Mr. Olan when he admitted to prostitution.
Defense Counsel Argues that Mr. Olan was Not Free to Leave
After Officer Shideler’s testimony, defense counsel argued that he was not free to leave because Mr. Olan “gave Officer Shideler a passport from another country,” was not from this country, did not speak the language, three officers surrounded him, and Mr. Olan submitted to the officers’ authority by raising his hands. Mr. Olan’s argument focused on the fact that Mr. Olan was not free to leave and that “he was seized,” and “seizure is custody.”
Trial Court Determines that there was No Miranda Violation
At the conclusion of the arguments, the trial court rendered its decision and determined that “the questioning at issue in this case was not the product of custodial interrogation,” and overruled the motion. The court made the following findings:
The interview was brief in nature. I would submit not substantially longer certainly than any ordinary traffic stop, a great deal of the discussion, at least offered in video, concerns the license plates of the vehicle, the registration of the vehicle, certainly the matter was delayed by the obvious language barrier between the officers and defendant, but it was I think, a relatively brief interaction between the defendant and the police. And while the officer testified that the defendant was not actually free to leave, the question is, would a reasonable person in the suspect’s position would have understood that situation? Again, very subjective question and analysis, but it is, I think, noteworthy, that at least twice that was viewed on video, the defendant elected to exit the vehicle. The first time, he was instructed by, I believe it was Officer Officer Buck, to get back in the vehicle. The second time, he exited the vehicle and walked of his own volition towards the rear of the vehicle, pointing as he was to the license plate or temporary tag on the video. He did not appear to believe that his freedom was restricted. He was not handcuffed. He was not told he was under arrest. He was certainly never threatened in any way. On the contrary, the officers, specifically Officer Officer Shideler, appeared to go to some length to obtain a translation app that would allow him to communicate clearly with the defendant, and the defendant appeared to participate in that discussion willingly and of his own volition.
I do not think a fair characterization to suggest that the police verbally dominated this interaction at all, which consisted of primarily typing, as I understood it, typing statements into an app on a cellphone, showing it to the defendant, who then typed his responses, showing them to the police. The questions were short, they were straightforward.
Again, I don’t think there was any question that police took – that the
police did not take any action that could be fairly characterized as overpowering, tricking, or coercing the defendant into making a statement.
Mr. Olan Appeals
Mr. Olan now appeals, and in one assignment of error, he argues that the trial court erred by denying the motion to suppress.
Established Case Law
To protect the Fifth Amendment privilege against compulsory self- incrimination, police must inform individuals of their right to remain silent and their right to counsel before undertaking a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 467-468 (1966). “A custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Cleveland v. Oles, 2017-Ohio-5834, quoting Miranda at 444.
“[T]he test is not whether the individual feels free to leave but whether the situation ‘exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.’ ” Berkemer v. McCarty, 468 U.S. 420, 437 (1984).
There is a Difference Between Custody and Miranda Custody
As the Oles court explained:
If the inquiry were whether the driver felt free to leave, then every traffic stop could be considered a custodial interrogation because ‘few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.’ Berkemer, 468 U.S. at 436. And a law-enforcement officer, in the midst of investigating a traffic stop and performing all its attendant procedures, would not consider a driver free to leave unless given permission. But ‘not free to leave’ and ‘in custody’ are distinct concepts. Oles at ¶ 30.
During an investigatory detention, “[T]he 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.
The sole issue is whether Mr. Olan was in custody, requiring Miranda warnings before the police questioning that led to his various admissions. Here, there is no dispute that Mr. Olan was not free to leave and had not been formally arrested. The initial encounter was a routine traffic stop because Mr. Olan was detained for a traffic violation. At the time of the questioning, the traffic stop had not been completed because Mr. Olan had not produced his vehicle registration. Therefore, to determine if Mr. Olan was in custody, the question is whether the totality of circumstances demonstrates a restraint on Mr. Olan’s freedom of movement to the degree associated with a formal arrest.
Did the Language Barrier Change the Encounter to Miranda Custody?
Mr. Olan further argues on appeal that he was subjected to a custodial interrogation because Mr. Olan was not fluent in English and Officer Shideler disregarded Mr. Olan’s attempts to communicate via the translator app rendering Mr. Olan “helpless to communicate with the officer.” We note that Mr. Olan did not argue at the suppression hearing that Officer Shideler disregarded his communications. Moreover, the trial court found that the officer did “obtain a translation [app] that would allow him to communicate clearly with [Mr. Olan]”.
Translation App Overcomes Established Case Law that Created Miranda Custody
The dissent concludes that Mr. Olan’s language barrier is a factor that weighs in favor of a custodial interrogation. It is true that a few courts have found that under certain circumstances, English language capabilities might have an “objectively discernible relationship to a reasonable person’s understanding of his freedom of action” that could bear on the custody analysis for purposes of Miranda. United States v. Han, 199 F.Supp.3d 38, 52-54 (D.D.C.2016), citing J.D.B. v. North Carolina, 564 U.S. 261, 275, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011). However, in those cases, the language barrier created confusion and a lack of understanding that was apparent to the officers. See, e.g., United States v. Kim, 292 F.3d 969, 977 (9th Cir. 2002) (defendant’s limited English proficiency, which the officer’s knew, bore on the defendant’s ability to understand whether she was a criminal suspect where the police took complete control of her store, questioned her for at least 30 minutes without an interpreter and another 20 minutes once the interpreter joined the interrogation, ordered her to speak English, and isolated her from her husband and son); Han, at 48 (defendant, a non-English-speaking alien seafarer, was under the functional equivalent of custody when the government confined him to a ship for a month, denied his request to leave, took his passport, refused to allow him to return to his home country, and had a government agent constantly supervising him). Here, as previously noted, any language barrier was overcome by the use of a translation app that allowed Mr. Olan and the officer to effectively communicate.
Note: There was an additional appeal on whether Mr. Olan was physically boxed in by the cruisers. The defense failed to raise this issue in the initial trial, so it was summarily dismissed by the appellate court. That appeal is not evaluated in this article.
Conclusion
As previously discussed, Mr. Olan voluntarily participated in the brief questioning and was not subject to the inherently compelling pressures of a custodial situation and does not allege that the officers were threatening, coercive, displaying weapons, or physically restraining him.
Holding
Accordingly, we find that given the circumstances, a reasonable person would not have considered himself or herself in custody under Miranda and we overrule the sole assignment of error.
Information for this article was obtained from State v. Olan, 2024 – Ohio – 1257.
State v. Olan, 2024 – Ohio – 1257 was issued by the First District Appellate Court and is binding in Hamilton County, Ohio.
Lessons Learned:
- Investigative Detention or Miranda Custody? There is a difference between a suspect being in physical custody and being in Miranda The ‘custody’ status of Mr. Olan was at issue in this case and was the primary issue of his appeal. A person can be in physical custody and not be in Miranda Custody, and inversely, not be in physical custody but be in Miranda Custody. The difference between these two has many shades of gray and another reason why law enforcement is THE hardest job in America. Mr. Olan was never in Miranda Custody as the First District Appellate Court held “[A] reasonable person would not have considered himself or herself in custody under Miranda.”.
- Established Miranda Case Law – Adding to the Miranda Custody analysis is a Supreme Court of Ohio case that was issued in 2017 where the court held in a six-to-one decision “A custodial interrogation is ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Cleveland v. Oles, 2017-Ohio-5834. Of course every person on a traffic stop has his freedom of action deprived. But that is not where the analysis begins and ends. Because of a U.S. Supreme Court case that was issued in 1984, that court held in a nine to zero decision (!) that a person may be temporarily detained but still not be in Miranda On July 2, 1984, the U.S. Supreme Court held “[A person who is] temporarily detained as part of a routine traffic or investigatory stop is not generally deemed ‘in custody’, and hence, is not entitled to Miranda warnings.” Berkemer v. McCarty, 468 U.S. 420, 436 (1984).
- Language Translator App – This is the first case I have reviewed where a language translator phone app was used as a basis for an appeal. Here, the Mr. Olan’s defense team claimed that language barrier modified the encounter to Miranda The First District Appellate dismissed this argument and held “[A]ny language barrier was overcome by the use of a translation app that allowed Mr. Olan and the officer to effectively communicate.”.
- Pre-Sent Arms! Cincinnati Police Officer Shideler, Officer Buck and the unidentified third officer should all be highly commended for their outstanding arrest of the prostitute and Mr. Olan. Well done!
Does your agency train on Custodial Interrogation?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!