Court of Common Pleas

Motion No. 4570624 NAILAH K. BYRD CUYAHOGA COUNTY CUERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas MOTION TO... March 7, 201714:10 By: SEAN KILBANE 0092072 Confirmation Nbr. 1006009 THE STATE OF OHIO CR 16 608403-A vs. RAJDEEP BISWAS Judge: MICHAEL P. SHAUGHNESSY Pages Filed: 8

IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CRIMINAL DIVISION STATE OF OHIO, ) CASE NO.: CR-16-608403 Plaintiff ) ) ) JUDGE MICHAEL SHAUGHNESSY vs. ) ) STATE S MOTION TO DENY RAJDEEP BISWAS, ) DEFENSE COUNSEL S MOTION TO ) SUPPRESS Defendant. ) Now comes the State of Ohio, by and through the Cuyahoga County Prosecutor Michael C. O Malley, and his undersigned assistant, Sean M. Kilbane, and hereby moves this Honorable Court deny Defense Counsel s Motion to Suppress. The grounds in support of this motion are set forth in the attached Memorandum, incorporated herein by reference. Respectfully submitted, MICHAEL C. O MALLEY By: Sean M. Kilbane (0092072) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street - 9th Floor Cleveland, Ohio 44113 (216) 443-5046 3/7/2017 1

I. Statement of Case On July 29, 2016, Officers with the Cleveland Division of Police responded to 1801 East 12th Street in Cleveland, OH (hereinafter apartment complex ) in connection with a burglary. Officers knew the Defendant, Rajdeep Biswas (hereinafter Defendant ), was still on scene, along with the Victim. When Officers arrived, the Victim was in the lobby of the apartment complex, and the Defendant was located in a back office inside the building. The Defendant was placed in this back office by security guards and managers associated with the apartment complex. While one Officer spoke with the victim in the lobby, the other Officer went into the back office to engage with the Defendant. The Officer entered the office and was greeted by the Defendant who stated hello. The Officer responded with what s going on? After this brief exchange, the Defendant begins to speak for a period of over two minutes. During those two minutes, the only question posed by the Officer was did you used to live with her (victim)? During these voluntary statements, the Defendant is standing, while the Officer is seated. The door to the office is open. During two separate periods, more officers enter the back office. During these encounters, Officers ask more direct questions about what transpired just prior to police arrival. At this point, Officers are trying to put together a coherent version of events. The Defendant again agrees to volunteer information. During all encounters with officers, the dialogue between the Officers and the Defendant are conversational. The Defendant was subsequently arrested and booked. After his arrest, Detective Michael Cozart with the Cleveland Division of Police mirandizes the Defendant and asks if he wishes to make a statement. The Defendant says he does not wish to make a statement, but does have questions for the Detective, such as the nature of the charges. The Detective subsequently tells the Defendant that he is going to seize his cell phone, in which the Defendant responds I m fucked. 2

Defense Counsel previously filed a motion to suppress statements made by the Defendant. In Defense Counsel s motion, he asks this Court to exclude all statements made by the Defendant on July 29, 2016. However, Defense Counsel limits his arguments to any statements made by the Defendant at the apartment complex on July 29, 2016. If Defense Counsel argues at the motion hearing that statements made to Detective Cozart should also be suppressed, the State reserves the right to argue that statements made to the Detective should also be admissible. For purposes of this written response, the State will focus solely on the statements made by the Defendant at the apartment complex on July 29, 2016. II. Law and Argument A. Custody In Miranda v. Arizona, 384 U.S. 436 (1966), the United States Supreme Court held that custodial interrogation constituted compulsion within the meaning of the Fifth Amendment privilege against compelled self-incrimination. To protect the privilege in this context, the Court required the reading of the now familiar Miranda warnings -- that he has the right to remain silent, anything he says can be used against him in a court of law, he has the right to the presence of an attorney, and if he cannot afford an attorney one will be appointed for him. Miranda does not require, however, any additional warnings beyond what has been stated. State v. Kimmie, 2013-Ohio-4034, f 1 (8th Dist. Ct. App.) In re Smalley, 62 Ohio App.3d 435 (8th Dist. Ct. App. 1989), the 8th District held that a person is considered to be in custody when his/her freedom of action is curtailed to a degree associated with formal arrest. The Court should look at the surrounding circumstances surrounding the police encounter, and whether a reasonable person would have felt that he was at liberty to terminate the interview and leave. In re C. W., 2013 Ohio 5426, f 30 (8th Dist. Ct. App.). In the absence of a formal arrest, Miranda warnings are only required where there has been such a restrain on a person s freedom of movement as to render him in custody. State v. 3

Maurer, 15 Ohio St. 3d 239, 256 (Ohio 1984). In looking at the totality of the circumstances, the Court must look at whether the officer (or officers) involved were overbearing or intimidating. See State v. Williams, 99 Ohio St. 3d 493 (Ohio 2003). The Defendant was not in custody while he was being interrogated at the apartment complex. First, the Defendant was not under formal arrest prior to making any statements to police officers, so the Court should look at the surrounding circumstances to determine whether a reasonable person would have believed they were free to leave. The Defendant s initial encounter with the first Officer who approached him was the opposite of confrontational or coercive. The Officer enters the back office and takes a seat while the Defendant remains standing. The Officer does not even have an opportunity to begin asking any questions because the Defendant immediately begins to tell his side of the story. While the Officer is seated, the Defendant is facing an open door. He was never told that he was to remain in the room. The conversation between himself and the first Officer was conversational. It is also important to note that the Defendant was not placed into the back office by Cleveland Police; but rather, was escorted to the back office by apartment security and managers. This is unlike a scenario where Officers escort a suspect to a room or police station. The Defendant stayed in this particular location until Officers arrived on the scene, and he began to openly and voluntarily relay information to the Officers. Examining all these circumstances, this Court should find that the Defendant was not in custody at the time of his encounter with Officers. b. Interrogation The United States Supreme Court and the Ohio Supreme Court have defined interrogation as express questioning, i.e., any words or actions on the part of the police (other than normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect or the functional equivalent of such conduct by police. State v. Tucker, 81 Ohio St.3d 434, 436 (1998). [T]he special procedural safeguards 4

outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. Interrogation, as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. R.I. v. Innis, 446 U.S. 291, 300 (1980). The procedural safeguards in Miranda do not protect against an unsolicited and spontaneous statement made by a suspect. State v. Neyland, 139 Ohio St. 3d 353 (Ohio 2014). Moreover, Miranda does not hamper a law enforcement officer s ability to conduct its fact finding function. As such, the Court in Miranda held that general on-the-scene questioning is not affected by the Miranda decision. Miranda, 384 U.S. at 477. "In the cases that have held general on-the-scene questioning to be a 'custodial interrogation' the courts found an additional element of coercion not normally present in general on-the-scene inquiries or found that the police investigation had focused on the accused. State v. Carter, 1989 Ohio App. LEXIS 1959, *14 (8th Dist. Ct. of Appeals). Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influence is, of course, admissible in evidence. Miranda, 384 U.S. at 478. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to police without the benefit of warnings and counsel, but whether he can be interrogated. Thus, it is the 'compelling influence' to confess which renders the confession inadmissible if made while in custody and in the absence of warnings or of counsel. In re Potts, 1978 Ohio App. LEXIS 9041, at *10-11 (8th Dist. Ct. App. Aug. 17, 1978). While the exclusionary principle relates to statements induced by law enforcement officers by interrogation or otherwise, it is not applicable to statements originating by the un-induced choice of the defendant. The exclusionary principle has been developed as a sanction imposing restraint on law enforcement officials. The principle is not designed to protect a defendant from his own words freely and voluntarily given without inducement by law enforcement officials. Id. at *18. If all the other circumstances surrounding the confession indicate that it is made voluntarily, the 5

confession is admissible even though the police mislead the defendant by suggesting that they received certain information. State v. Loza, 71 Ohio St. 3d 61, 64 (1994). In deciding whether a defendant's confession is involuntarily induced, the court sho uld consider the totality of the circumstances. State v. Edwards, 49 Ohio St.2d 31, (1976). However, police overreaching is a prerequisite to a finding of involuntariness. Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis. State v. Clark, 38 Ohio St.3d 252, 261 (1988). Thus, at the threshold, Defense Counsel must show that the Officers used an inherently coercive tactic on the Defendant. Defense Counsel makes the argument that the Defendant did not volunteer any information. Rather, his statements were in direct responses to questions posed by law enforcement officers. An evidentiary hearing on this issue will directly contradict this statement. When Officers arrive on scene of the incident, one Officer goes into the back office of the apartment complex where Defendant is located. The Officer enters the office and says what s going on? It is important for the Court to view the video of this encounter because the Officer s statement can reasonably be interpreted as the Officer greeting the Defendant. The Officer says what s going on? after the Defendant greets the Officer with a hello. And immediately after this exchange the Defendant volunteers a little over two minutes of unsolicited statements about why he was at the apartment complex, the nature of the Defendant and Victim s relationship, and some facts about what occurred inside of the apartment. This encounter between the Defendant and the Officer is not what Miranda was trying to guard against. Unsolicited statements from a suspect are not protected by the Miranda procedural safeguards. Moreover, nothing from this encounter suggests that anything the Officer did what likely to elicit an incriminating response. There is no evidence of compulsion. The statements are made in a back office, with one officer, and the Defendant is volunteering the information. 6

Furthermore, Defense may argue that when more officers begin to enter the back office, there is a level of coercion which should trigger Miranda warnings. However, every encounter made by the Officers this day were general on-the-scene questioning. At the time, Officers get information about a potential burglary. One officer begins to speak with the Victim, and the other Officer begins to speak with the Defendant. The one Officer who first begins to speak with the Defendant begins to apprise other Officers about what the Defendant has told him, such as the statement he told me that she (Victim) let him in. Clearly, Officers were trying to initially untangle a confusing situation and gather all necessary facts. As such, the Defendant was not subject to interrogation on the date in question. III. Conclusion Based on the above arguments, the Defendant was not subject to custodial interrogation. The Defendant was neither in custody, nor was he subject to interrogation. Both custody and interrogation must be present in order for statements to be suppressed. Both are missing in this case. Respectfully submitted, MICHAEL C. O MALLEY Cuyahoga County Prosecutor Sean M. Kilbane (0092072) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street - 9th Floor Cleveland, Ohio 44113 (216) 443-5046 7

CERTIFICATE OF SERVICE A copy of the foregoing Response to Motion to Suppress was delivered via CCPO portal to Jerome Emoff., Attorney for Defendant on this 7rd day of March 2017. Sean M. Kilbane (0092072) Assistant Prosecuting Attorney 8