MEMORANDUM DECISION Feb 17 2016, 8:17 am
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE C. Anthony Ashford Gregory F. Zoeller Ashford Law Group, P.C. Attorney General of Indiana Chesterton, Indiana Angela N. Sanchez Deputy Attorney General Benjamen W. Murphy Indianapolis, Indiana Law Office of Ben Murphy Griffith, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carlos Barrientos, February 17, 2016
Appellant-Defendant, Court of Appeals Case No. 64A03-1508-CR-1128 v. Appeal from the Porter Superior Court. The Honorable William E. Alexa, State of Indiana, Judge. Appellee-Plaintiff. Cause No. 64D02-1407-F2-5995
Barteau, Senior Judge
Statement of the Case [1] A police officer stopped Carlos Barrientos while driving and, as a result of their
encounter, found a controlled substance in Barrientos’ car. In this interlocutory
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 1 of 16 appeal, Barrientos requests reversal of the trial court’s denial of his motion to
suppress evidence. We affirm.
Issues [2] Barrientos raises four issues, which we consolidate and restate as:
I. Whether the trial court erred in rejecting Barrientos’ claim that a police officer violated the Fourth Amendment to the United States Constitution by asking Barrientos to sit in a police car during a traffic stop and by searching Barrientos’ vehicle. II. Whether the trial court erred in rejecting Barrientos’ claim that a police officer violated article I, section 11 of the Indiana Constitution by asking Barrientos to sit in a police car during a traffic stop and by searching Barrientos’ vehicle.
Facts and Procedural History [3] On July 8, 2014, Detective Alfred Villarreal of the Lake County Sheriff’s
Department was parked along Interstate 90 in Porter County. He was on patrol
in an unmarked car. Detective Villarreal was approached by a man who
identified himself as an agent of the United States Drug Enforcement Agency.
The agent explained he was investigating a vehicle that might be transporting
controlled substances in a hidden compartment. The agent told Detective
Villarreal the make, model, and color of the vehicle and further stated it had a
yellow temporary license plate issued by the State of Illinois.
[4] Later, as Detective Villarreal was driving on Interstate 90, he saw a vehicle that
matched the description the agent had given him. He followed the vehicle and
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 2 of 16 determined it was going eighty miles per hour, well over the speed limit of
seventy miles per hour. The detective also saw the vehicle cross the highway’s
fog line. Detective Villarreal stopped the vehicle.
[5] Barrientos was driving the vehicle, and he was accompanied by his mother and
his nephew. Detective Villarreal approached the vehicle on the passenger side.
He told Barrientos that he had stopped him for speeding and asked for a driver’s
license and vehicle registration. Barrientos produced those documents.
[6] Next, Detective Villarreal asked Barrientos to get out of the vehicle and sit in
his patrol car. Barrientos was wearing a t-shirt and shorts, and Detective
Villarreal asked Barrientos to lift up his t-shirt to show that he did not have a
weapon tucked into his shorts before allowing Barrientos to enter the patrol car.
Barrientos complied.
[7] After they both sat down in the car, Detective Villarreal checked Barrientos’
license on his computer to determine whether the license was valid and whether
Barrientos had any arrest warrants. The detective also examined the vehicle
registration. Detective Villarreal asked Barrientos where he was going, and
Barrientos said he was going to South Bend to attend a child’s birthday party.
As they talked, Detective Villarreal noted that Barrientos was “fidgety” and his
answers seemed to be “hesitant” or “questionable.” Tr. p. 16. However, they
also laughed together because the detective had mistakenly believed Barrientos’
nephew was an adult due to being tall, and Barrientos explained his nephew
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 3 of 16 was only fifteen years old. Detective Villarreal did not find any irregularities in
Barrientos’ documents.
[8] Detective Villarreal walked back to Barrientos’ vehicle to ask the passengers
where they were going. Barrientos’ mother said they were “just taking a ride
and going to see a family member in general.” Id. at 17.
[9] Next, Detective Villarreal returned to his car, where Barrientos was waiting.
The detective sat down, returned Barrientos’ driver’s license and vehicle
registration, and gave him a verbal warning for speeding. Detective Villarreal
then told Barrientos he was “all set.” Id. at 19. Barrientos appeared to be
relieved and told the officer he would watch his speed. Next, the following
exchange occurred, as described by Detective Villarreal:
I asked him if he had anything illegal in the vehicle. I told him that we get a lot of weapons and drugs that come through here, and I asked him if he had anything illegal in his vehicle and he said no. I asked him if he had any weapons in the car; he said no. I asked him if he had any drugs in the car; he said no. And I asked him if he had any large amounts of U.S. currency; and he said no. I then asked him right after that if I could do a – my words were ‘a quick search of his car.’ And he said – I believe he said, ‘Yes, no problem’ or ‘no problem.’ And I reiterated, ‘So I could search your car? I can search it?’ And he said yes or yeah, one of the two. Id. at 21.
[10] After Barrientos consented to the search, Detective Villarreal had Barrientos’
mother and nephew go sit in the patrol car with Barrientos. The detective and
two other officers who arrived at the scene searched Barrientos’ vehicle and
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 4 of 16 found a hidden compartment in the dashboard. The officers opened the
compartment and found a package of what appeared to be a controlled
substance. Subsequent testing revealed that the officers had found 482.81
grams of heroin.
[11] Meanwhile, Barrientos and his mother talked as they sat in Detective
Villarreal’s car, and a recorder captured their conversation. Barrientos admitted
to his mother that he had a “drug” in the car. State’s Ex. 2.
[12] The State charged Barrientos with dealing in a narcotic drug, a Level 2 felony.
Ind. Code § 35-48-4-1 (2014). Barrientos filed a motion to suppress. The trial
court denied Barrientos’ motion after an evidentiary hearing. Barrientos asked
the trial court to certify its ruling for interlocutory appeal, and the trial court
granted the request. Next, Barrientos requested and received permission from
this Court to pursue an interlocutory appeal.
Discussion and Decision I. Standard of Review [13] We review the denial of a motion to suppress similar to other sufficiency
matters. Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), trans.
denied. We do not reweigh the evidence but instead consider conflicting
evidence in the light most favorable to the trial court’s ruling. Id. We also
consider any uncontested evidence in favor of the defendant. Id.
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 5 of 16 [14] Barrientos concedes Detective Villarreal acted lawfully by stopping him because
he had been speeding. Barrientos instead contends that being placed in the
detective’s car and having his vehicle searched violated his federal and state
constitutional protections against unreasonable search and seizure. We address
the constitutional claims in turn.
II. Fourth Amendment [15] The Fourth Amendment to the United States Constitution provides, in relevant
part: “The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be violated.” The
Fourth Amendment applies to the states through the Fourteenth Amendment.
Thayer v. State, 904 N.E.2d 706, 709 (Ind. Ct. App. 2009).
[16] The protections of the Fourth Amendment extend to brief investigatory stops of
persons or vehicles that fall short of traditional arrest. Id. Stopping an
automobile and detaining its occupants constitutes a seizure within the meaning
of the Fourth Amendment, even though the purpose of the stop is limited and
the resulting detention may be brief. Id. If the detention exceeds the
investigative scope of the stop, then seized items may be excluded from
evidence. Id.
[17] Barrientos argues that Detective Villarreal exceeded the scope of the stop by
asking him to sit in the patrol car. He cites Wilson v. State, 745 N.E.2d 789, 793
(Ind. 2001), for the proposition than an officer may not place a motorist in a
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 6 of 16 patrol vehicle during a traffic stop unless it is justified by particular
circumstances in the case.
[18] Here, Detective Villarreal noted that the road where the stop occurred,
Interstate 90, was dangerous because it was congested “on that particular day.”
Tr. p. 7. In addition, the section of the highway where the stop occurred had
only two lanes. The patrol car was equipped with a dash camera, and its
recording supports the detective’s assertion of dangerousness, showing heavy
traffic passing Barrientos’ parked vehicle. Furthermore, Barrientos’ vehicle had
a temporary license plate issued by the State of Illinois. Detective Villarreal
explained he frequently has difficulty obtaining accurate information from his
computer about Illinois temporary plates and it is helpful to have the motorist
in his car to assist him.
[19] Barrientos notes Detective Villarreal repeatedly testified during the suppression
hearing that he always asks motorists to get into his patrol car during traffic
stops because doing so allows him to access his car’s computer more easily,
limits his need to walk back and forth between his car and the motorist’s
vehicle, makes it easier for him to converse with the motorist, and allows him a
better opportunity to spot potential criminal activity.
[20] A routine practice of requiring motorists to enter a patrol car during traffic stops
does not appear to comply with our Supreme Court’s holding in Wilson.
Nevertheless, even where an officer has a general practice of requiring a
motorist to get out of his or her car and sit in a patrol car during a traffic stop,
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 7 of 16 there may still be facts in a particular case that justify the officer’s request.
Under the specific circumstances in this case, Detective Villarreal was justified
in asking Barrientos to sit in the patrol car to minimize the need for the
detective to walk back and forth along the road during dangerously heavy traffic
and to more easily address any issues arising from Barrientos’ temporary license
plate.
[21] Barrientos cites several cases in support of his claim, but they are
distinguishable. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d
229 (1983), did not involve a traffic stop but rather a citizen’s encounter with
the police in an airport terminal. In Lucas v. State, 15 N.E.3d 96, 104 (Ind. Ct.
App. 2014), trans. denied, a panel of this Court concluded a police officer
violated the Fourth Amendment by having the motorist get into his patrol car
because the record was devoid of any particularized circumstances to justify the
officer’s request. By contrast, in the current case Detective Villarreal noted that
the interstate was dangerously busy on the day in question. Finally, in Crocker
v. State, 989 N.E.2d 812, 819-20 (Ind. Ct. App. 2013), trans. denied, this Court
addressed whether an officer’s request for a motorist to sit in the patrol car
violated the Fifth Amendment rather than the Fourth Amendment.
[22] Next, Barrientos argues that even if the detective acted lawfully in asking him to
sit in the patrol car, Barrientos’ consent to have his vehicle searched was invalid
because the detective requested permission to search while they sat in the patrol
car. Barrientos thus argues that he was coerced into consenting.
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 8 of 16 [23] Generally, a search warrant is a prerequisite to a constitutionally proper search
and seizure. Perry v. State, 638 N.E.2d 1236, 1240 (Ind. 1994). A valid consent
to search obviates the Fourth Amendment’s warrant requirement. Id. The
State bears the burden of demonstrating consent was freely and voluntarily
given. Navarro v. State, 855 N.E.2d 671, 675 (Ind. 2006). A consent to search is
valid except where it is procured by fraud, duress, fear, intimidation, or where it
is merely a submission to the supremacy of the law. Id.
[24] Voluntariness of a consent is a question of fact to be determined from the
totality of the circumstances. Id. Some of the circumstances for consideration
may include: (1) whether the defendant was advised of his or her Miranda
rights prior to the request to search; (2) the defendant’s degree of education and
intelligence; (3) whether the defendant was advised of his or her right not to
consent; (4) whether the defendant has previous encounters with law
enforcement; (5) whether the officer made any express or implied claims of
authority to search without consent; (6) whether the officer was engaged in any
illegal action prior to the request; (7) whether the defendant was cooperative
previously; and (8) whether the officer was deceptive as to his or her true
identity or the purpose of the search. Id.
[25] In this case, Detective Villarreal neither Mirandized Barrientos nor told him he
was free to refuse to consent. In addition, the record is silent as to Barrientos’
level of education and whether he has encountered law enforcement in the past.
These factors must be weighed against the many other factors that favor a
finding of voluntariness. First, Detective Villarreal returned Barrientos’ driver’s
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 9 of 16 license and vehicle registration before asking for permission to search, so the
detective was not holding onto the documents as a form of coercion. Second,
although Barrientos was in the patrol car during the discussion, he was not
handcuffed or otherwise restrained. To the contrary, Detective Villarreal told
Barrientos that he was “all set,” thus ending the stop, before requesting consent
to search. Tr. p. 19. Third, Detective Villarreal was not engaged in illegal or
deceptive activity when he requested permission to search, and he did not tell
Barrientos that Barrientos was suspected of a crime. Fourth, Detective
Villarreal did not claim any authority to search the car even if Barrientos
refused to consent. Cf. Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008)
(motorist’s consent to search his car was invalid because the officer had told the
motorist that the search was “necessary,” thereby indicating that there was no 1 right to refuse). Fifth, Barrientos had been cooperative throughout the traffic
stop, immediately and unhesitatingly consented to the search, and repeated
several times that he consented to the search. Sixth, Detective Villarreal
conversed with Barrientos in a normal tone of voice and no other officers
arrived on the scene until after Barrientos had consented, so the atmosphere
was not unduly intimidating. Cf. Thurman v. State, 602 N.E.2d 548, 552 (Ind.
Ct. App. 1992) (defendant’s consent to search his car was the product of
coercion where the defendant gave his consent while being forced to keep his
1 It appears that Detective Villarreal was also involved in the Campos case. That case involved a traffic stop in Northwest Indiana, and its facts closely resemble this case except for the officer’s crucial statement in Campos that the search was “necessary.” Detective Villarreal did not make a similar statement in the current case.
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 10 of 16 hands on his car and was surrounded by five police officers), trans. denied.
Seventh, the traffic stop was relatively brief in duration, as less than ten minutes
elapsed between Officer Villarreal stopping Barrientos’ vehicle and Barrientos
consenting to a search. Defendant’s Ex. 1. Based on the totality of the
circumstances, we conclude that Barrientos’ consent to search his vehicle was
freely and voluntarily given, and the trial court did not abuse its discretion in
denying Barrientos’ motion to suppress on Fourth Amendment grounds.
III. Article I, section 11 [26] Article I, section 11 of the Indiana Constitution provides, in relevant part: “The
right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable search or seizure, shall not be violated.” The text of
article I, section 11 is nearly identical to that of the Fourth Amendment, but
Indiana’s courts interpret and apply section 11 independently from Fourth
Amendment jurisprudence. State v. Washington, 898 N.E.2d 1200, 1205-06
(Ind. 2008).
[27] The purpose of section 11 is to protect those areas of life that Hoosiers consider
private from unreasonable police activity. Id. at 1206. Under the Indiana
Constitution, the legality of a governmental search or seizure turns on an
evaluation of the reasonableness of the police conduct under the totality of the
circumstances. Richard v. State, 7 N.E.3d 347, 350 (Ind. Ct. App. 2014), trans.
denied. Among other circumstances, we consider: (1) the degree of concern,
suspicion or knowledge that a violation has occurred; (2) the degree of intrusion
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 11 of 16 the method of the search or seizure imposes on the citizen’s ordinary activities;
and (3) the extent of law enforcement needs. Austin v. State, 997 N.E.2d 1027,
1034 (Ind. 2013). The State has the burden of proving that a search or seizure
was reasonable under the totality of the circumstances. Croom v. State, 996
N.E.2d 436, 442 (Ind. Ct. App. 2013), trans. denied.
[28] Barrientos argues that Detective Villarreal acted unreasonably by requiring him
to sit in the patrol car during the stop. The detective knew that violations had
occurred because he had watched Barrientos speed and drive over the fog line.
As a result, Detective Villarreal was justified in investigating Barrientos’
documents and asking where Barrientos was going.
[29] Turning to the degree of intrusion into Barrientos’ privacy, Barrientos was
asked to step out of his car and sit in the patrol car. Furthermore, he was asked
to lift his shirt while standing on the side of the road to show he did not have a
gun. It appears that Detective Villarreal could have conducted the traffic stop
just as effectively if Barrientos had remained in his own vehicle.
[30] On the other hand, Barrientos was not handcuffed. Further, the record
demonstrates Detective Villarreal’s interaction with Barrientos did not differ
from what a reasonable person might expect during a routine traffic stop –
reviewing the motorist’s documents via computer, asking general questions
about the motorist’s destination, and issuing a verbal warning. The detective’s
tone of voice was level throughout the stop. In addition, the traffic stop was
effectively over when Detective Villarreal asked for permission to search the
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 12 of 16 vehicle. Further, it appears Barrientos’ sitting in the patrol car did not
unreasonably extend the duration of the stop, because only ten minutes passed
between when the stop began and when Barrientos agreed to the search.
[31] As for the extent of law enforcement needs, there were specific circumstances
that led Detective Villarreal to have Barrientos sit in his patrol car. On the day
and time in question, the highway was very busy, and Detective Villarreal
prefers to minimize walking back and forth between cars as a safety measure.
Also, Barrientos’ vehicle had an Illinois temporary license plate, and the
detective wanted Barrientos to be present as he searched for the plate on his
computer in case any problems arose. Finally, as our Supreme Court has
recognized, interstate drug trafficking is a significant issue facing law
enforcement. “Given that [drug traffickers’] stock-in-trade is inherently fungible
and highly mobile, but their centers of organization are scattered and secretive,
law enforcement’s best chance of uncovering the latter is to interdict the former
as it moves about our nation’s highways.” Austin, 997 N.E.2d at 1036.
Balancing the three factors, we conclude Detective Villarreal’s decision to have
Barrientos sit in the patrol car during the traffic stop was not unreasonable
under the totality of the circumstances.
[32] Finally, Barrientos argues his consent to search his vehicle was invalid under
article I, section 11 of the Indiana Constitution because he was in custody but
was not advised that he had the right to refuse Detective Villarreal’s request.
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 13 of 16 [33] In Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634, 640 (1975), our Supreme Court
determined that when a suspect is in custody, article I, section 11 of the Indiana
Constitution requires that the suspect must be advised of, and explicitly waive,
the right to counsel before giving a valid consent to a search. We determine
whether a person is in custody for purposes of Pirtle by considering all
circumstances surrounding the encounter and asking whether a reasonable
person under the same circumstances would believe he or she was under arrest
or not free to resist the entreaties of the police. Meredith v. State, 906 N.E.2d
867, 873 (Ind. 2009). Relevant circumstances include whether the defendant
had been read his or her Miranda rights, was handcuffed or otherwise
restrained in any way, was told he or she was a suspect in a crime, was
subjected to vigorous interrogation, was told to cooperate, was told expressly or
impliedly there would be adverse consequences for noncooperation, or was told
he or she was not free to go. Id. at 874. The length of the detention is also a
factor. Id. A person stopped by the police during a traffic stop is “seized” and
momentarily not free to go but is ordinarily not considered to be in custody. Id.
at 873.
[34] Barrientos was restrained in a sense by being asked to sit in the patrol car during
the stop, but he was not handcuffed or otherwise restricted. His discussion with
Detective Villarreal was typical of a conventional traffic stop. Detective
Villarreal spoke in a level voice throughout his conversation with Barrientos.
At one point, the two men laughed because Detective Villarreal initially
thought Barrientos’ nephew was an adult rather than a fifteen-year-old. The
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 14 of 16 detective never told Barrientos he was under investigation, did not urge him to
cooperate, and never threatened him with adverse consequences for
noncooperation. To the contrary, Detective Villarreal ended the traffic stop by
giving Barrientos a verbal warning and telling him, “You’re all set,” before
requesting permission to search the vehicle. Tr. p. 19. Barrientos immediately
consented to the detective’s request, agreeing several times to the search.
Finally, the stop did not last very long, no more than ten minutes until
Barrientos consented to the search.
[35] Barrientos discusses several cases in support of his claim, but they are
distinguishable. In Friend v. State, 858 N.E.2d 646, 651 (Ind. Ct. App. 2006), a
panel of this Court determined the defendant was in custody, and should have
been given Pirtle advisements, because he had been detained for forty-five
minutes, was put in a patrol car and repeatedly told to stay there, and was
handcuffed - circumstances that are not present in the current case. In Miller v.
State, 846 N.E.2d 1077, 1081 (Ind. Ct. App. 2006), trans. denied, a panel of this
Court deemed the defendant to be in custody, and entitled to Pirtle advisements,
because he was removed from his car and handcuffed. By contrast, Barrientos
was never handcuffed. Finally, in Crocker, 989 N.E.2d at 819, a panel of this
Court deemed the defendant to have been in custody because, after an officer
placed the defendant in a patrol vehicle, the officer immediately administered a
sobriety test and also lied to the defendant, stating that he knew the defendant
had marijuana. Neither of those circumstances was present in Barrientos’ case.
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 15 of 16 [36] Under the circumstances of this case, Barrientos was not in custody and the
detective was not obligated to give Barrientos Pirtle advisements while asking
whether Barrientos would consent to a vehicle search. See Meredith, 906 N.E.2d
at 874 (Pirtle advisements unnecessary where the record reveals “nothing more
than a conventional traffic stop.”). The trial court did not err by rejecting
Barrientos’ claim that his consent to the search was invalid pursuant to Indiana
Constitution article I, section 11.
Conclusion [37] For the foregoing reasons, we affirm the judgment of the trial court.
[38] Affirmed.
Najam, J., and Barnes, J., concur.
Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016 Page 16 of 16