                                                             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

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       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.




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