MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 09 2018, 11:00 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christian Hicks, February 9, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1708-CR-1796 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff. Judge Trial Court Cause No. 49G10-1704-CM-13966
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 1 of 8 Case Summary [1] Christian Hicks (“Hicks”) appeals his conviction, following a bench trial, for
possession of marijuana, as a Class B misdemeanor. 1 The sole issue he raises
on appeal is whether the trial court erred in denying his motion to suppress on
the grounds that the police failed to advise him of his rights under Pirtle before
obtaining his consent to search his backpack.
[2] We affirm.
Facts and Procedural History [3] At approximately 1:20 a.m. on April 16, 2017, Officer Daniel Birt (“Officer
Birt”) with the Butler University Police Department was on patrol when he
received a dispatch about a “suspicious … black male with dreadlocks, gray
shirt, blue jeans on a bicycle looking in vehicles.” Tr. at 4. The caller who
reported the suspicious activity stated that he saw the suspect “up around his
garage[,]” “north on Boulevard [Place].” Id. at 4 - 5. Four law enforcement
units, including Officer Birt, began looking for the suspect. When Officer Birt
drove to the location, he saw a man later identified as Hicks heading north on
Boulevard Place. Hicks wore a gray shirt, blue jeans, and was on a bicycle, thus
matching the description of the suspect.
1 Ind. Code § 35-48-4-11(a)(1).
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 2 of 8 [4] When Officer Birt proceeded closer, he observed that the bicycle Hicks was
riding did not have a rear taillight or a headlight. Officer Birt decided to
conduct a stop of Hicks based on those infractions and also because he was “a
suspect for … possible vehicle break-ins.” Id. at 5. Officer Birt activated the
emergency lights of his marked police car and pulled up in front of Hicks. He
then exited his vehicle and asked Hicks to stop. Three other officers soon
arrived at the scene in two additional police vehicles with emergency lights
activated. Officer Birt then approached Hicks and asked him for his
identification. Hicks did not have any identification but verbally identified
himself by providing his name and date of birth.
[5] Officer Birt radioed the information he received from Hicks to dispatch, and
dispatch informed him that “there was a possible warrant hit” for Hicks. Id. at
6. Officer Birt then asked Hicks for his social security number, which Hicks
provided and which Officer Birt relayed to dispatch. While waiting for
confirmation from dispatch of a warrant on Hicks, Officer Birt observed that
Hicks was wearing a backpack and asked him if he could search it. Hicks
handed his backpack to Officer Birt, who placed it on the hood of his vehicle
and searched it. Inside the backpack, Officer Birt found a metal tin containing
a baggie with 9.29 grams of marijuana, a silver grinder, a small spoon, a stone
pipe, lighters, and papers.
[6] Immediately after Officer Birt found the items in Hicks’ backpack, dispatch
confirmed that there was a warrant for Hicks’ arrest out of Hendricks County.
Approximately ten to fifteen minutes passed from the time the officer provided
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 3 of 8 dispatch with Hicks’ social security number and the time dispatch confirmed
the warrant. Officer Birt then handcuffed Hicks and placed him into his patrol
vehicle.
[7] The State charged Hicks with possession of marijuana, as a Class B
misdemeanor, and possession of paraphernalia, as a Class C misdemeanor.2
Hicks’ had a bench trial on July 17, 2017 at which he moved to suppress “any
contents of the search of [his] backpack as he was in police custody and was not
advised of his Pirtle rights before being asked to consent to the search of the
backpack which would be in violation of Article One, Section 11 of the Indiana
Constitution.” Tr. at 9-10. The trial court denied Hicks’ motion, and Hicks
lodged a continuing objection. The court found Hicks guilty of Class B
misdemeanor possession of marijuana, and it dismissed the Class C
misdemeanor possession of paraphernalia upon Hicks’ Trial Rule 41(b) motion.
The court sentenced Hicks to 180 days in the county jail, with 174 days
suspended and credit time of six days. This appeal ensued.
Discussion and Decision [8] Hicks appeals the denial of his motion to suppress the evidence obtained in the
search of his backpack. A trial court has broad discretion to rule on the
admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).
2 I.C. § 35-48-4-8.3(b)(1).
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 4 of 8 Generally, evidentiary rulings are reviewed for an abuse of discretion and
reversed when admission is clearly against the logic and effect of the facts and
circumstances. Id. However, when a challenge to an evidentiary ruling is
predicated on the constitutionality of a search or seizure of evidence, it raises a
question of law that is reviewed de novo. Id. The State has the burden to
demonstrate that the measures it used to seize information or evidence were
constitutional. State v. Rager, 883 N.E.2d 136, 139 (Ind. Ct. App. 2008).
[9] Hicks contends that the search of his backpack violated his rights under Article
1, Section 11 of the Indiana Constitution because Officer Birt did not advise
him of his Pirtle rights prior to obtaining his consent to the search. In Pirtle v.
State, 323 N.E.2d 634, 640 (Ind. 1975), our Supreme Court held that, under
Article 1, Section 11, “a person who is asked to give consent to search while in
police custody is entitled to the presence and advice of counsel prior to making
the decision whether to give such consent.” 3 It is undisputed that Officer Birt
did not advise Hicks of his Pirtle (or Miranda) rights prior to obtaining his
consent to search the backpack. Therefore, whether the evidence must be
suppressed depends upon whether Hicks was “in custody” at the time the
officer requested his consent to search.
3 As Hicks acknowledges, there is no federal constitutional right to counsel before consenting to a search, even if the suspect is in custody. See United States v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 09 2018, 11:00 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Christian Hicks, February 9, 2018 Appellant-Defendant, Court of Appeals Case No. 49A04-1708-CR-1796 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda E. Brown, Appellee-Plaintiff. Judge Trial Court Cause No. 49G10-1704-CM-13966
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 1 of 8 Case Summary [1] Christian Hicks (“Hicks”) appeals his conviction, following a bench trial, for
possession of marijuana, as a Class B misdemeanor. 1 The sole issue he raises
on appeal is whether the trial court erred in denying his motion to suppress on
the grounds that the police failed to advise him of his rights under Pirtle before
obtaining his consent to search his backpack.
[2] We affirm.
Facts and Procedural History [3] At approximately 1:20 a.m. on April 16, 2017, Officer Daniel Birt (“Officer
Birt”) with the Butler University Police Department was on patrol when he
received a dispatch about a “suspicious … black male with dreadlocks, gray
shirt, blue jeans on a bicycle looking in vehicles.” Tr. at 4. The caller who
reported the suspicious activity stated that he saw the suspect “up around his
garage[,]” “north on Boulevard [Place].” Id. at 4 - 5. Four law enforcement
units, including Officer Birt, began looking for the suspect. When Officer Birt
drove to the location, he saw a man later identified as Hicks heading north on
Boulevard Place. Hicks wore a gray shirt, blue jeans, and was on a bicycle, thus
matching the description of the suspect.
1 Ind. Code § 35-48-4-11(a)(1).
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 2 of 8 [4] When Officer Birt proceeded closer, he observed that the bicycle Hicks was
riding did not have a rear taillight or a headlight. Officer Birt decided to
conduct a stop of Hicks based on those infractions and also because he was “a
suspect for … possible vehicle break-ins.” Id. at 5. Officer Birt activated the
emergency lights of his marked police car and pulled up in front of Hicks. He
then exited his vehicle and asked Hicks to stop. Three other officers soon
arrived at the scene in two additional police vehicles with emergency lights
activated. Officer Birt then approached Hicks and asked him for his
identification. Hicks did not have any identification but verbally identified
himself by providing his name and date of birth.
[5] Officer Birt radioed the information he received from Hicks to dispatch, and
dispatch informed him that “there was a possible warrant hit” for Hicks. Id. at
6. Officer Birt then asked Hicks for his social security number, which Hicks
provided and which Officer Birt relayed to dispatch. While waiting for
confirmation from dispatch of a warrant on Hicks, Officer Birt observed that
Hicks was wearing a backpack and asked him if he could search it. Hicks
handed his backpack to Officer Birt, who placed it on the hood of his vehicle
and searched it. Inside the backpack, Officer Birt found a metal tin containing
a baggie with 9.29 grams of marijuana, a silver grinder, a small spoon, a stone
pipe, lighters, and papers.
[6] Immediately after Officer Birt found the items in Hicks’ backpack, dispatch
confirmed that there was a warrant for Hicks’ arrest out of Hendricks County.
Approximately ten to fifteen minutes passed from the time the officer provided
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 3 of 8 dispatch with Hicks’ social security number and the time dispatch confirmed
the warrant. Officer Birt then handcuffed Hicks and placed him into his patrol
vehicle.
[7] The State charged Hicks with possession of marijuana, as a Class B
misdemeanor, and possession of paraphernalia, as a Class C misdemeanor.2
Hicks’ had a bench trial on July 17, 2017 at which he moved to suppress “any
contents of the search of [his] backpack as he was in police custody and was not
advised of his Pirtle rights before being asked to consent to the search of the
backpack which would be in violation of Article One, Section 11 of the Indiana
Constitution.” Tr. at 9-10. The trial court denied Hicks’ motion, and Hicks
lodged a continuing objection. The court found Hicks guilty of Class B
misdemeanor possession of marijuana, and it dismissed the Class C
misdemeanor possession of paraphernalia upon Hicks’ Trial Rule 41(b) motion.
The court sentenced Hicks to 180 days in the county jail, with 174 days
suspended and credit time of six days. This appeal ensued.
Discussion and Decision [8] Hicks appeals the denial of his motion to suppress the evidence obtained in the
search of his backpack. A trial court has broad discretion to rule on the
admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).
2 I.C. § 35-48-4-8.3(b)(1).
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 4 of 8 Generally, evidentiary rulings are reviewed for an abuse of discretion and
reversed when admission is clearly against the logic and effect of the facts and
circumstances. Id. However, when a challenge to an evidentiary ruling is
predicated on the constitutionality of a search or seizure of evidence, it raises a
question of law that is reviewed de novo. Id. The State has the burden to
demonstrate that the measures it used to seize information or evidence were
constitutional. State v. Rager, 883 N.E.2d 136, 139 (Ind. Ct. App. 2008).
[9] Hicks contends that the search of his backpack violated his rights under Article
1, Section 11 of the Indiana Constitution because Officer Birt did not advise
him of his Pirtle rights prior to obtaining his consent to the search. In Pirtle v.
State, 323 N.E.2d 634, 640 (Ind. 1975), our Supreme Court held that, under
Article 1, Section 11, “a person who is asked to give consent to search while in
police custody is entitled to the presence and advice of counsel prior to making
the decision whether to give such consent.” 3 It is undisputed that Officer Birt
did not advise Hicks of his Pirtle (or Miranda) rights prior to obtaining his
consent to search the backpack. Therefore, whether the evidence must be
suppressed depends upon whether Hicks was “in custody” at the time the
officer requested his consent to search.
3 As Hicks acknowledges, there is no federal constitutional right to counsel before consenting to a search, even if the suspect is in custody. See United States v. Lagrone, 43 F.3d 332, 337 (7th Cir. 1994).
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 5 of 8 [10] Our Supreme Court has explained the distinction between custodial encounters,
where Pirtle applies, and non-custodial encounters, where it does not. In
making this distinction,
the “ultimate inquiry” is whether there was a “formal arrest” or a “ ‘restraint on freedom of movement’ of the degree associated with a formal arrest.” Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983)). In answering this question, courts consider all circumstances surrounding the encounter and “largely appl[y] an objective test asking whether a reasonable person under the same circumstances would believe that she was under arrest or not free to resist the entreaties of the police.” Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995).
Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009). And, although a person who
is stopped by the police for investigation of a traffic violation is “seized” and
momentarily not free to go, ordinarily that does not constitute “custody” for
purposes of Pirtle. Id.
[11] Thus, a Pirtle advisement is not required in an ordinary investigative detention,
but is required in “full-blown custodial interrogations.” Id. For the latter,
courts look at whether there are circumstances showing “objectively
overpowering, coercive, or restraining police behavior, such that the facts
demonstrate a degree associated with a formal arrest.” Id. at 873-74 (quotation
and citation omitted).
A non-exhaustive list of relevant factors our cases have identified [to make such a determination] includes: whether the defendant was read his Miranda rights, handcuffed, restrained in any way,
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 6 of 8 or told that he was a suspect in a crime, e.g., Torres v. State, 673 N.E.2d 472, 474 (Ind. 1996); how vigorous was the law enforcement interrogation, e.g., Sellmer v. State, 842 N.E.2d 358, 363–65 (Ind. 2006); whether police suggested the defendant should cooperate, implied adverse consequences for noncooperation, or suggested that the defendant was not free to go about his business, e.g., id.; Clarke[ v. State], 868 N.E.2d [1114,] 1120–21 [(Ind. 2007)]; and the length of the detention, e.g., Cooley v. State, 682 N.E.2d 1277, 1279 (Ind. 1997).
Id. at 874.
[12] Here, the evidence shows nothing more than an ordinary investigative
detention of Hicks. Officer Birt stopped him for a traffic infraction and because
he met the description of a person suspected of vehicle break-ins. He asked
Hicks for his identification, called that information in to dispatch, and waited to
see if Hicks had any outstanding warrants. All of that activity is incident to
normal traffic stops. Id. at 873. Moreover, Hicks was not Mirandized, nor was
he handcuffed or otherwise physically restrained at the time of the request for
consent. The officers did not: tell Hicks he was a suspect in a crime; interrogate
him; question him regarding drugs; or suggest that he should cooperate or
imply adverse consequences if he did not consent to a search. Cf. Sellmer, 842
N.E.2d at 364-65 (holding defendant was in custody for purposes of Pirtle where
the police asked to search the car three to five times before obtaining her
consent; police “came extremely close” to asking incriminating questions; and
police informed defendant it was “in [her] best interest” to cooperate when she
asked if she was required to let them search the car). The officers simply asked
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 7 of 8 Hicks for his identification and “[stood] around waiting” for the confirmation
on the warrant until Officer Birt asked for consent to search the backpack. Tr.
at 7. And the duration of the detention was not unusually lengthy. Thus,
although Hicks was detained pursuant to an investigatory stop, he was not in
custody for purposes of Pirtle. The trial court did not err in denying the motion
to suppress.
[13] Affirmed.
Kirsch, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018 Page 8 of 8