                                                                  FILED
                                                             Feb 22 2018, 8:12 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jeffery A. Earl                                            Curtis T. Hill, Jr.
Danville, Indiana                                          Attorney General of Indiana
                                                           Ellen H. Meilaender
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

D. Z.,                                                     February 22, 2018
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           32A05-1708-JV-1907
         v.                                                Appeal from the Hendricks
                                                           Superior Court
State of Indiana,                                          The Honorable Karen M. Love,
Appellee-Petitioner.                                       Judge
                                                           Trial Court Cause No.
                                                           32D03-1704-JD-86



Riley, Judge.




Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018             Page 1 of 24
                                 STATEMENT OF THE CASE
[1]   Appellant-Respondent, D.Z., appeals the juvenile court’s delinquency

      adjudication for an act that would have been a Class B misdemeanor if

      committed by an adult.


[2]   We reverse.


                                                      ISSUE
[3]   D.Z. presents us with four issues on appeal, one of which we find dispositive

      and which we restate as: Whether the juvenile court abused its discretion by

      admitting D.Z.’s incriminating statements to a school official, who was working

      in cooperation with law enforcement.


                       FACTS AND PROCEDURAL HISTORY
[4]   Around February or March 2017, graffiti of a sexual nature began to appear on

      the walls of the boys’ restrooms at Brownsburg High School, in Indiana.

      Assistant principal Demetrius Dowler (Dowler) commenced an investigation to

      find the person responsible and reviewed surveillance video footage of the

      hallways where the related bathrooms are located. On March 15, 2017, Dowler

      reported “mischief of vandalism and graffiti” on the bathroom walls and stalls

      to Officer Nathan Flynn (Officer Flynn) and requested his assistance with the

      ongoing investigation. (Tr. p. 17). Officer Flynn is a police officer with the

      Brownsburg community schools and is employed “by the school for law

      enforcement duties.” (Tr. p. 17). In that capacity, he is “called to investigate

      allegations of misconduct within the school.” (Tr. p. 17). Together, Officer
      Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 2 of 24
      Flynn and Dowler started a methodical search of the boys’ restrooms and

      narrowed down time frames when graffiti was located. They used these time

      frames to review surveillance footage to determine who was in the restrooms

      during the time when new graffiti appeared. After reviewing the surveillance

      video, both Officer Flynn and Dowler pinpointed seventeen-year-old D.Z. as a

      suspect.


[5]   On March 17, 2017, Dowler called D.Z. down to his office for a “discussion”

      right before the “[e]nd of the day.” (Tr. pp. 55, 56). Dowler questioned D.Z. in

      his office with the door closed. D.Z. was not offered the opportunity to speak

      to a parent or guardian prior to the commencement of the interview, nor was

      his parent or guardian contacted prior to D.Z.’s removal from class. During

      this conversation, D.Z. was not advised that “he had a right not to answer

      questions that might incriminate himself.” (Tr. p. 56). Dowler informed D.Z.

      that he had been “tracking some restroom graffiti” and explained the

      investigation to him. (Tr. p. 61). Dowler clarified that he “knew that [D.Z.]

      was the one that was responsible for graffiti on the wall.” (Tr. p. 61). D.Z.

      responded that he didn’t know why he did it. After D.Z. showed remorse,

      Dowler told him that “what [he] did was wrong and so we’re going to have to

      definitely take care of it.” (Tr. p. 62). Dowler suspended D.Z. for five days.

      After his discussion with D.Z., Dowler left the room and informed Officer

      Flynn that D.Z. had “admitted to the messages/writing on the wall.” (Tr. p.

      43). Dowler then contacted D.Z.’s father. Meanwhile, Officer Flynn, in full

      police uniform, entered Dowler’s office and spoke to D.Z. The officer did not


      Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 3 of 24
      advise D.Z. of his constitutional rights, contact D.Z.’s father, or record the

      interview. Eventually, at the end of the interview, Officer Flynn “let [D.Z.]

      know he was being charged with a crime.” (Tr. p. 44).


[6]   On April 18, 2017, the State filed a Petition Alleging Delinquency, claiming

      that D.Z. had committed acts that would be an offense if committed by an

      adult, namely, criminal mischief and harassment. On July 17, 2017, the

      juvenile court conducted a fact-finding hearing. During the hearing, D.Z.

      moved to suppress, and the State agreed to suppress, the testimony of Officer

      Flynn regarding incriminating statements made to him by D.Z. as D.Z. had not

      been informed of his Miranda 1 rights prior to uttering the statements. The

      juvenile court granted the motion. At the conclusion of the fact-finding

      hearing, the juvenile court entered a true finding on the allegation of criminal

      mischief, as a Class B misdemeanor if committed by an adult, but found that

      the State had not established the harassment allegation beyond a reasonable

      doubt. That same day, the juvenile court placed D.Z. on probation for four

      months.


[7]   D.Z. now appeals. Additional facts will be provided when necessary.


                                  DISCUSSION AND DECISION
                                                 I. Standard of Review




      1
          Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


      Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018       Page 4 of 24
[8]    D.Z. contends that the juvenile court abused its discretion by admitting into

       evidence, over his objection, the incriminating statements he made during the

       meeting with the assistant principal. He maintains that these statements were

       obtained in violation of the Fifth Amendment to the United States Constitution

       because he was subjected to a custodial interrogation without being advised of

       his rights under Miranda.


[9]    A trial court is afforded broad discretion in ruling on the admissibility of

       evidence, and we will reverse such a ruling only upon a showing of an abuse of

       discretion. Bentley v. State, 846 N.E.2d 300, 304 (Ind. Ct. App. 2006), trans.

       denied. An abuse of discretion involves a decision that is clearly against the

       logic and effect of the facts and circumstances before the court. Id. In making

       this decision, this court does not reweigh evidence and considers conflicting

       evidence in a light most favorable to the trial court’s ruling. Cole v. State, 878

       N.E.2d 882, 885 (Ind. Ct. App. 2007). Regarding the “abuse of discretion”

       standard generally, our supreme court has observed, “to the extent a ruling is

       based on an error of law or is not supported by the evidence it is reversible, and

       the trial court has no discretion to reach the wrong result.” Pruitt v. State, 834

       N.E.2d 90, 104 (Ind. 2005).


[10]   “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.” 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, 18 L.Ed.2d 527 (1967)). “Without question, these include . . . the

       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 5 of 24
       constitutional privilege against self-incrimination[.]” Id. “In protection of the

       rights against self-incrimination, the United States Supreme Court’s opinion in

       Miranda v. Arizona, established that ‘the prosecution may not use statements,

       whether 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.’” P.M. v. State, 861 N.E.2d

       710, 713 (Ind. Ct. App. 2007). 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.


[11]   We have previously reiterated that “[t]he special status accorded juveniles in

       other areas of the law is fully applicable in the area of criminal procedure.”

       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 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.

       See I.C. § 31-32-5-1. 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. See S.D., 937 N.E.2d at 430. Therefore, the threshold

       question becomes whether D.Z. was in custody, and if so, whether the




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 6 of 24
       questioning by the assistant principal constituted interrogation as recognized

       under the federal and state constitutions.


                                III. Custodial Interrogation in the Schoolhouse


[12]   D.Z. contends he was subjected to a custodial interrogation because no

       reasonable juvenile who is called into the assistant principal’s office and

       questioned behind closed doors regarding an ongoing investigation into

       vandalized bathrooms would have felt free to leave prior to being dismissed by

       the assistant principal. In response, the State asserts that the assistant principal

       was merely conducting a disciplinary investigation, which resulted in the

       imposition of school discipline.


[13]   The purpose of Miranda is to dispel the inherently coercive effect of police

       custody and interrogation. Miranda, 384 U.S. at 467, 86 S.Ct. 1602. “[T]he

       special procedural safeguards outlined in Miranda are not required where a

       suspect is simply taken into custody, but rather where a subject in custody is

       subjected to interrogation.” Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct.

       1682, 64 L.Ed.2d 297 (1980). “Interrogation has been defined as a process of

       questioning by law enforcement officials which lends itself to obtaining

       incriminating statements.” S.D., 937 N.E.2d at 430. “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.” White v. State, 772 N.E.2d 408, 412 (Ind. 2002)

       (citing Innis, 446 U.S. 301). The United States Supreme Court has held that the


       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 7 of 24
       safeguards outlined in Miranda also apply to the functional equivalent of

       interrogation by the police. Innis, 446 U.S. at 301-02.


[14]   Whether a person is in custody depends upon objective circumstances, not

       upon the subjective views of the interrogating officers or the subject being

       questioned. 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. S.D., 937 N.E.2d at 430. To be custodial in the non-

       arrest context, the interrogation must commence after the person’s freedom of

       action has been deprived in a significant way. Id. This is determined by

       examining whether a reasonable person in similar circumstances would believe

       he is not free to leave. Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003).


[15]   While the determination as to whether a student is in custody and in need of

       Miranda safeguards is easily solved when the student is at the stationhouse,

       whether these same concerns that powered the Miranda decision are present in

       the modern schoolhouse setting is a more intricate question. This court

       previously provided a thorough analysis of the law concerning the issue in S.G.

       v State, 956 N.E.2d 668 (Ind. Ct. App. 2011), trans. denied, where we

       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 on other grounds by Alvey v. State, 911 N.E.2d 1248, 1250 (Ind. 2009).

       In each case, the appellate court held that there was no Miranda violation. In
       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 8 of 24
       S.A., we found that there “was no coercive atmosphere to protect against”

       where “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.” S.G.

       956 N.E.2d at 677. In G.J., juvenile G.J. was questioned by the dean in the

       dean’s office regarding whether he had brought marijuana to school. Id. The

       record did not indicate if an officer was present in the dean’s office during

       questioning. Id. In C.D., a high school student was suspected of being “under

       the influence of some substance.” Id. at 677. Following an investigation in the

       principal’s office by a police officer, who was trained as a drug recognition

       evaluator, this suspicion was confirmed and C.D. was considered to be under

       the influence of marijuana. Id. at 677. A search of C.D.’s backpack by the

       principal revealed a controlled substance. Id. This court determined that the

       principal’s action fell within the ambit of “an educational purpose” and that

       “C.D.’s examination was intended to carry out an educational function or

       school purpose, not to further a criminal examination.” Id. at 677-78. Because

       the officer examined C.D. at the principal’s request and in his presence, the

       investigation “did not transform [] into a custodial interrogation.” Id.

       Nevertheless, since we issued S.G., the educational landscape has undergone

       some significant changes.


[16]   There can be no dispute that the task of safeguarding children in our schools

       and maintaining appropriate discipline is an issue of paramount public

       importance. Education is mandatory, and we entrust our children to the school

       system, believing that they will be in an environment that is clean, safe, and

       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 9 of 24
conducive to learning. Every parent, indeed, all of society, expects this.

However, “[w]alking the halls of America’s public schools today, one should

not be surprised to see a police officer.” Paul Holland, Schooling Miranda:

Policing Interrogation in the Twenty-First Century Schoolhouse, 52 Loy.L.Rev. 39, 1

(2006). In recent years, the presence of police in schools has changed more

than just the frequency and nature of interactions between students and police

and many schools have instituted ‘zero tolerance’ for school behavior. Id.; See

N.C. v. Com., 396 S.W. 3d 852, 863 (Ky. 2013). When viewed in protecting

innocent children, this certainly has merit. But the use of zero tolerance has

caused a dramatic shift away from traditional in-school discipline towards

greater reliance on juvenile justice interventions. N.C., 396 S.W.3d at 863.

Such policies, which emphasize criminal charges, can serve to change the

nature of questioning a student for purposes of school discipline into a criminal

investigation. Id. In light of this changing educational landscape, school

administrators have altered their activities to collaborate more actively with

police officers. Id. In fact, school administrators in Indiana, under auspices of

the Indiana Department of Education, as well as in several states across the

country, are being instructed in law enforcement techniques of interviewing and

interrogation. 2




2
  On October 26, 2017, and November 9, 2017, the Indiana Department of Education advertised “training”
in the Reid Technique of Interviewing and Interrogation for school administrators, with a focus on:

Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018               Page 10 of 24
[17]   Just as a school cannot pretend ignorance of the rules of criminal procedure,

       neither can police officers ignore, as beyond their responsibility, the ways in

       which school administrators take advantage of their presence and actions. See

       Holland, Schooling Miranda, at 15. Police officers are not divested of their law

       enforcement authority when they enter schools; schools employ them precisely

       because they wield this authority. Id. at 17. As such, the presence of law

       enforcement in schools on a daily basis serves notice that crimes will be charged

       for conduct the officer believes violates the law. N.C., 396 S.W.3d at 864. This

       is not inappropriate, but it does change the nature of questioning a child for

       school discipline purposes to an improper police interrogation absent

       constitutional safeguards. Id.


[18]   “[O]ther 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 student] would produce an incriminating response to the

       principal’s questioning.” S.G., 956 N.E.2d at 678-79. In N.C., the student

       admitted to giving hydrocodone to another student, in response to questioning

       by the assistant principal who was working in conjunction with the school

       resource officer. N.C., 396 S.W.3d at 854. The officer was present during the




               Reid Nine Steps of Interrogation: review the interrogation process, beginning with how to
               initiate the confrontation, develop the interrogational theme, stop denials, overcome
               objections, and use the alternative question to stimulate the admission.
       INDIANA DEPARTMENT OF EDUCATION, http://www.doe.in.gov/safety/reid-technique-interviewing-and-
       interrogation-oct-26 (last visited Jan. 29, 2018).

       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018                 Page 11 of 24
discussion. Id. After the assistant principal informed N.C. that he was subject

to school discipline, the assistant principal left the room, leaving N.C. with the

officer. Id. The officer then informed N.C. that he would be charged with a

crime. Id. At no time was N.C. advised that he was free to leave, was given

Miranda warnings, nor were his parents called. Id. Recognizing that a proper

balance has to be struck between “the important public policy concerns of

educators and parents to provide an appropriate and safe school environment

while still protecting the individual rights of a child,” the Kentucky supreme

court held that


        any statement obtained may not be used against a student as a
        basis for a criminal charge when law enforcement is involved or
        if the principal is working in concert with law enforcement in
        obtaining incriminating statements, unless the student is given
        the Miranda warnings and makes a knowing, voluntary statement
        after the warnings have been given.


        Every custodial interrogation, when law enforcement is involved
        will not necessarily invoke the giving of Miranda warnings, for
        example, if the matter purely concerns school discipline. There
        are many school disciplinary matters where the presence of the
        law enforcement officer will maintain order and create a safer
        environment for the administrator and student. However,
        statements obtained without giving Miranda warnings are subject
        to suppression if a criminal charge is brought.


        Certainly, all trained law enforcement officers know how to give
        Miranda warnings and to ensure that the school officer and the
        child are aware when criminal charges may be triggered. This is
        not an undue burden when measured against the consequences a
        child faces in the juvenile justice system or the adult criminal

Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 12 of 24
               system, which clearly can be punitive. And, this protection does
               not prevent a school official from filing a criminal complaint,
               though the voluntariness of any confession remains a question of
               law for the court in every case, even if Miranda warnings have
               been given.


       Id. at 864, 865; see also State v. Antonio T., 352 P.3d 1172, 1179 (N.M. 2015); In

       re K.D.L., 700 S.E.2d 766, 772 (N.C. Ct. App. 2010).


[19]   Turning to the facts before us, we conclude that D.Z. was submitted to a

       custodial interrogation at which he should have been advised of his rights

       pursuant to Miranda. The evidence establishes that after Dowler and Officer

       Flynn’s investigation was complete and a suspect was identified, Dowler called

       D.Z. to his office for a discussion. The assistant principal questioned D.Z. in

       his office with the door closed. No reasonable student would have believed that

       he was at liberty to leave the office—it is undeniable that juveniles are

       susceptible to the influence of authority figures and the constraining effect of

       being in a controlled setting of a school, where “disobedience [can be] cause for

       disciplinary action.” J.D.B. v. North Carolina, 564 U.S. 261, 276, 131 S.Ct. 2394,

       2405, 180 L.Ed.2d 130 (2011). As such, the circumstances of a school setting—

       where a refusal to comply with the request or command of school officials can




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 13 of 24
       have far-reaching consequences, including potential criminal charges—have

       become inherently more coercive recently than ever before in the past. 3


[20]   Although on its face appearing to be a school disciplinary proceeding, the

       ‘discussion’ between Dowler and D.Z. amounted in essence to an interrogation,

       geared towards a criminal proceeding. When Dowler reported the “mischief of

       vandalism and graffiti” to Officer Flynn and requested his assistance with the

       ongoing investigation, the school and law enforcement investigations became

       inextricably intertwined and Dowler was aware that criminal charges could

       ensue. (Tr. p. 17). In his office behind closed doors, Dowler explained the

       nature and method of the investigation to D.Z. After D.Z. made the

       incriminating statements, Dowler ended the conversation, imposed a five-day

       school suspension, and immediately informed Officer Flynn, who was waiting

       outside Dowler’s office, of D.Z.’s admission. Without advising D.Z. of his

       Miranda rights, Officer Flynn proceeded to interrogate the student. Conceding

       that the officer should have Mirandized D.Z., the State now relies on D.Z.’s

       statements to the assistant principal as the basis to bring criminal charges

       against him. This sequence of events strongly suspects that the assistant

       principal and the officer were purposefully exploiting the school administrator’s

       assumed ability to question without warnings and raises troubling echoes of the

       “confession-first” mode of interrogation found problematic by our United



       3
        A student’s fear of arrest for refusing to obey the directives of an authority figure at school is not
       unreasonable given the frequency with which school-based arrests for such refusals and other misconduct are
       documented in the mainstream media.

       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018                  Page 14 of 24
       States Supreme Court in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159

       L.Ed.2d 643 (2004). 4 If we no longer allow the Seibert interrogation technique

       in the stationhouse, why should we bless it in the schoolhouse?


[21]   Police officers cannot avoid their duty under Miranda by attempting to have

       someone act as their agent in order to bypass the Miranda requirements. Sears v.

       State, 668 N.E.2d 662, 668 (Ind. 1996), overruled on other grounds Scisney v. State,

       701 N.E.2d 847 (Ind. 1998). All relevant factors indicate that D.Z. was in

       custody and deprived of his freedom. He was being interrogated by Dowler in

       an effort to elicit incriminating statements about vandalizing the restroom

       without being informed of his rights, and he confessed without full knowledge

       of the consequences for so doing. Because the assistant principal and Officer

       Flynn acted in concert in obtaining these incriminating statements, and both

       were aware of the probability of criminal charges, D.Z. should have been

       advised of his Miranda rights. Absent these warnings, the juvenile court abused

       its discretion in admitting D.Z.’s statements to the assistant principal. As a

       consequence, we conclude that the State cannot establish beyond a reasonable

       doubt that D.Z. committed criminal mischief, if committed by an adult. We

       reverse the juvenile court’s finding of delinquency.




       4
         In Seibert, the United States Supreme Court ruled that a police protocol to intentionally proceed without
       Miranda warnings until after an incriminating statement has been rendered, caused post-Miranda statements
       to be inadmissible. Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018                   Page 15 of 24
                                              CONCLUSION
[22]   Based on the foregoing, we conclude that the juvenile court abused its

       discretion when it admitted D.Z.’s incriminating statements to a school official,

       who was working in cooperation with law enforcement.


[23]   Reversed.


[24]   Baker, J. concurs with separate concurring opinion


[25]   Brown, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 16 of 24
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       D.Z.,                                                      Court of Appeals Case No.
                                                                  32A05-1708-JV-1907
       Appellant-Respondent,

               v.

       State of Indiana,
       Appellee-Petitioner.



       Baker, Judge, concurring.


[26]   I fully concur with the majority opinion. I write separately to acknowledge the

       State’s compelling argument that when D.Z. sat down with Dowler, it was

       merely a school disciplinary meeting that in no way implicated D.Z.’s Miranda

       rights. Historically speaking, there is truth in that argument. Unfortunately, I

       believe it ignores the reality of today’s school hallways. The frequent—in some

       places, constant—presence of officers in our schools has, in my view, changed

       the nature of the school disciplinary process.




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018           Page 17 of 24
[27]   In this case, Dowler and Officer Flynn investigated the vandalism together.

       Together, they reviewed surveillance footage, conducted a methodical search of

       the boys’ restrooms, and pinpointed D.Z. as the primary suspect. Dowler

       initially interviewed D.Z. without Officer Flynn. Immediately after that

       interview, however, Dowler informed Officer Flynn of the content of his

       conversation with D.Z., which ultimately led to an allegation that D.Z. was

       delinquent. Under these circumstances, and given the general evolution of the

       school disciplinary process into something quasi- (or actually) criminal in

       nature, I fully concur with the majority’s determination that the finding of

       delinquency should be reversed.




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 18 of 24
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       D.Z.,                                                      Court of Appeals Case No.
                                                                  32A05-1708-JV-1907
       Appellant-Respondent,

               v.

       State of Indiana,
       Appellee-Petitioner.



       Brown, Judge, dissenting.


[28]   I respectfully dissent from the majority’s conclusion that the court abused its

       discretion by admitting D.Z.’s statements to assistant principal Dowler when

       school resource officer Flynn was not present in the school office, and where

       there is no evidence that Dowler was acting as an agent of the police.


[29]   Ind. Code § 20-33-8-10 provides that a “principal may take action concerning

       the principal’s school or a school activity within the principal’s jurisdiction that

       is reasonably necessary to carry out or prevent interference with an educational




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018           Page 19 of 24
function or school purposes.” 5 School purposes are defined as “the purposes for

which a school corporation operates, including. . . [t]o promote knowledge and

learning generally [and] [t]o maintain an orderly and effective educational

system.” Ind. Code § 20-33-8-4. D.Z.’s graffiti appeared in four different boys’

bathrooms, made explicit reference to lewd sexual acts, and derogatorily

targeted seventeen female students of the classes of 2017, 2018, and 2019, four

or five with whom D.Z. had class. Unfortunately, pictures were taken of these

messages and shared on social media and two girls found out that they were the

subject of the graffiti before the school could remove it. Viewed from a

schoolhouse perspective, D.Z.’s actions interfered with the maintenance of an

orderly and effective educational system, Dowler’s February and March

investigation was an attempt to identify the cause of the interference, and his

discussion with D.Z. was an attempt to restore order. See Linke v. Northwestern

Sch. Corp., 763 N.E.2d 972, 982 (Ind. 2002) (“However, a preventative or

rehabilitative search conducted by a school corporation is substantively

different than a search conducted to enforce the law. A preventative or

rehabilitative search is inherent to a school corporation’s function. Students

generally understand that the ‘preservation of . . . a proper educational

environment requires close supervision’ and thus the intrusion on privacy is less




5
 Educational function is defined as the “performance by a school corporation or its officers or employees of
an act or a series of acts in carrying out school purposes.” Ind. Code § 20-33-8-2.

Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018                    Page 20 of 24
       severe.”) (quoting New Jersey v. T.L.O., 469 U.S. 325, 349-350, 105 S.Ct. 733, 83

       L.Ed.2d 720 (1985)).


[30]   To the extent that the majority asserts that school and law enforcement

       investigations became “inextricably intertwined” or that Dowler’s questioning

       amounted to an “interrogation, geared toward a criminal proceeding,” the

       record does not indicate that Dowler acted as Officer Flynn’s agent in an

       attempt to bypass any Miranda requirements. See S.G. v. State, 956 N.E.2d 668,

       680 (Ind. Ct. App. 2011). Cf. Sears v. State, 668 N.E.2d 662, 668 (Ind. 1996)

       (“The purpose of Miranda is to dispel the inherently coercive effect of police

       custody and interrogation. Based on this rationale, it has also been held to

       apply to police custody and the functional equivalent of interrogation by the

       police. The police also cannot avoid their duty under Miranda by attempting to

       have someone act as their agent in order to bypass the Miranda requirements.”

       (internal citations omitted)), overruled on other grounds by Scisney v. State, 701

       N.E.2d 847 (Ind. 1998). Rather, the situation here is similar to that in State v.

       C.D., where an investigation, first initiated by a school official, is subsequently

       assisted by a law enforcement officer, who is not independently investigating

       the matter. 947 N.E.2d 1018, 1023 (Ind. Ct. App. 2011) (“[Officer] Richhart

       was not independently investigating the matter. Instead, Richhart

       examined C.D. at [school official] Vanwanzeele’s request and in Vanwanzeele’s

       presence.”). Here, only Dowler and academic coach Zack Baldwin took

       photographs of the graffiti. Dowler personally reviewed the video footage from

       specific days to identify “who was where” and took still images from the video.

       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 21 of 24
Transcript Volume 2 at 54. He testified the investigation’s “focus was finding

out who was doing the graffiti,” that he “went back to [the] date and time [of

finding each graffiti] and ran through the video of the window and, sure

enough, it had [D.Z] entering and exiting at the time the writing was not on the

wall and the time the writing was on the wall,” and that he called D.Z. in to

have a discussion with him “once [he] had realized that [D.Z.] was a part of

each video that [he] had went back and looked at.” Id. at 54-55, 72-73. Dowler

had spent many hours investigating the graffiti on his own before asking Officer

Flynn to join him “a little bit before” March 15, 2017. Id. at 55. Officer Flynn

testified that Dowler


        indicated that there had been graffiti – it was kind of on-going for
        several months and he had been investigating it, looking into it.
        The custodians would find it and let him know that it was found,
        and so, they had very broad time frames. So, when it came to
        me, he said hey, this has been on-going for a while and, so, I kind
        of stepped in at that point to help him narrow down that
        investigation and get some time frames that could be more
        helpful.


Id. at 17-18. When asked if he controlled the surveillance personally, set it up,

or reviewed the videos afterwards on a regular basis, Officer Flynn testified, “I

don’t maintain it. I do review the videos frequently,” and that he did not recall

whether he discussed with Dowler the possibility that there could be criminal

charges resulting from the graffiti. Id. at 19. Dowler also responded “[n]ot that

I remember” when asked if “at any time while you were investigating the

graffiti, did you discuss a criminal investigation.” Id. at 55.


Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 22 of 24
[31]   When it came to speaking with then-seventeen-year-old D.Z., Dowler stated to

       Officer Flynn that he wanted to speak to D.Z. by himself because he “had a

       rapport with him” and wished to have the “conversation without [Officer

       Flynn] present.” Id. at 43. Dowler questioned D.Z. at seventh period in his

       office with the door closed. Id. at 55-56. When asked if D.Z. was “free to leave

       your office during the discussion . . . [c]ould he have gotten up and walked out

       if he wanted to,” Dowler answered, “I wouldn’t have held him.” Id. at 57. He

       testified similarly that D.Z. was allowed to go home with the other students

       when they were dismissed. When asked about the nature of the conversation in

       his office, Dowler testified:


               Yes. What I had, is I had first told [D.Z.] what I had seen. That
               I had been tracking some restroom graffiti and that I kind of
               zeroed in and had seen that he had been in some of the restrooms
               that the graffiti was found and that I had kinda closed the gap, so
               to speak, on when the graffiti was written and that I had video of
               him going into and coming out of those restrooms where the
               graffiti was not before in that little time frame that we had and,
               therefore, I knew that he was the one that was responsible for
               graffiti on the wall. At that moment, I kinda went into the
               question of is there a reason why you did this. Did you write this
               because you had hard feelings towards girls or something of that
               nature. His comment was no, I don’t know why I did it. I didn’t
               have anything against them of any sort. So, then it just became
               why would you do this and it became just a basic conversation of
               he really didn’t have a reason and, so, I just kind of said okay,
               what you did was wrong so we’re going to have to definitely take
               care of it. You know, we’re gonna have to take care of it and
               work on it from here.




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 23 of 24
       Id. at 61-62. Dowler explained to D.Z. that he faced a consequence of five days

       of suspension out of school. Id. at 63. Officer Flynn testified that he did not

       direct Dowler in any questioning, that when Dowler decided to bring in D.Z.

       for questioning, he was not in the office at the time of questioning, that he had a

       conversation with D.Z. after Dowler’s conversation, and that he entered

       Dowler’s office only after Dowler had exited, spoke to D.Z., and eventually let

       D.Z. know he was being charged.


[32]   While it may be true that schools are different than they used to be, I would

       hold on these facts as this Court did in C.D., 947 N.E.2d at 1022-1023; S.G.,

       956 N.E.2d at 679-680; and G.J. v. State, 716 N.E.2d 475, 477 (Ind. Ct. App.

       1999), and find that no Miranda violation occurred in the statements made to

       Dowler outside the presence of Officer Flynn and affirm the trial court’s

       finding.




       Court of Appeals of Indiana | Opinion 32A05-1708-JV-1907 | February 22, 2018   Page 24 of 24
