FILED Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the Aug 30 2012, 9:50 am purpose of establishing the defense of res judicata, collateral estoppel, or the CLERK of the supreme court, court of appeals and law of the case. tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JAMES W. MCNEW GREGORY F. ZOELLER JON A. KEYES Attorney General of Indiana Allen Wellman McNew Greenfield, Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
DANIELLE KELLY, ) ) Appellant-Defendant, ) ) vs. ) No. 30A01-1112-CR-584 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE HANCOCK CIRCUIT COURT The Honorable Richard D. Culver, Judge Cause No. 30C01-1009-FA-209
August 30, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
ROBB, Chief Judge Case Summary and Issues
Danielle Kelly was charged with dealing in cocaine and possession of cocaine
within 1,000 feet of a public park or youth program center, both Class A felonies,
following a search of a vehicle in which Kelly was a passenger. Kelly brings this
interlocutory appeal of the trial court’s denial of her motion to suppress, raising the
following issues for our review: 1) whether the search of the vehicle violated the Fourth
Amendment to the United States Constitution; 2) whether the search violated Article 1,
Section 11 of the Indiana Constitution; and 3) whether incriminating statements Kelly
made to police officers should be suppressed. Concluding the search and seizure did not
violate either the federal or state constitutions and Kelly’s post-Miranda statements are
admissible, we affirm the trial court’s denial of her motion to suppress.
Facts and Procedural History
On September 15, 2010, Sergeant Michael Fuller with the Fortville Police
Department responded to a call from Carolyn Goodwin who was known to Sergeant
Fuller because she had previously been the victim of a crime. Although she had on
occasion contacted police to report various crimes, she had never been used as a
confidential informant by police. Sergeant Fuller went to Goodwin’s home where she
told him that, “to help clean up her community,” transcript at 10, she had arranged for an
Indianapolis dealer who had sold cocaine to her friends in and around Fortville to bring
cocaine to her house, but that she was afraid of what would happen when he arrived and
she had no money to purchase the cocaine. She feared he might have a weapon. She
expected the dealer, who she described only as an African American man, to arrive
within fifteen minutes. While Sergeant Fuller was at Goodwin’s home, she received 2 several phone calls. From overhearing Goodwin’s part of the conversations, it was
apparent to Sergeant Fuller that the male caller was seeking directions to her house.
Sergeant Fuller requested assistance from officers in his department. A vehicle arrived at
Goodwin’s home within the approximate time frame Goodwin had stated the dealer was
expected. Police met the vehicle, driven by an African American man and carrying a
passenger, with their guns drawn. Both the driver and Kelly, the passenger, were
immediately ordered out of the vehicle and handcuffed. The vehicle was Kelly’s; the
driver was her cousin. While they were being interviewed, officers conducted an
inventory search of the vehicle prior to impounding it. During the inventory search, they
discovered cocaine in a hollowed-out screwdriver. During the police interview of Kelly,
she was asked if she knew about the cocaine in the car and admitted that she did. After
she made this statement, Kelly was advised of her Miranda rights. She subsequently
repeated her admission that she was aware of the cocaine.
The State charged Kelly with dealing in cocaine within one thousand feet of a
public park or youth program center and possession of cocaine in an amount greater than
three grams within one thousand feet of a public park or youth program center, both Class
A felonies. Kelly filed a motion to suppress evidence of the cocaine found in the search
of the vehicle as well as her incriminating statements, alleging both were obtained in
violation of the state and federal constitutions. Following a hearing and supplemental
briefing, the trial court entered the following order:
This matter was submitted to the Court on the issue of the Defendant’s Motion to Suppress Evidence. And the Court, after being duly advised in the premises, finds that said Motion should be granted in part and denied in part. The Court denies the [D]efendant’s Motion to Suppress Evidence with exception of statements by Danielle Kelly after she was 3 handcuffed and prior to the Miranda warnings. Subsequent statements, after being Mirandized, are not suppressed.
Appellant’s Appendix at 72. Kelly sought and was granted certification of the trial
court’s order, and this court accepted jurisdiction of her interlocutory appeal.
Discussion and Decision
I. Standard of Review
We review the denial of a motion to suppress “in a manner similar to other
sufficiency matters. We do not reweigh the evidence, and we consider conflicting
evidence most favorable to the ruling. Unlike typical sufficiency reviews, however, we
will consider not only the evidence favorable to the ruling but also the uncontested
evidence favorable to the defendant.” Gunn v. State, 956 N.E.2d 136, 138 (Ind. Ct. App.
2011). We review de novo a ruling on the constitutionality of a search or seizure, but we
give deference to a trial court’s determination of the facts, which will not be overturned
unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).
II. Search and Seizure
A. Fourth Amendment
1. Probable Cause
Kelly first contends the trial court erred in denying her motion to suppress because
the warrantless seizure of herself and her vehicle violated the Fourth Amendment to the
United States Constitution. The Fourth Amendment provides in relevant part, “The right
of people to be secure in their persons, houses, papers, and effects against unreasonable
searches and seizures, shall not be violated[.]” A lawful search generally requires a
judicially-issued search warrant. Wilson v. State, 966 N.E.2d 1259, 1263 (Ind. Ct. App.
4 2012), trans. denied. Warrantless searches are per se unreasonable, and the State
therefore bears the burden of establishing that a warrantless search falls within one of the
recognized exceptions to the warrant requirement. Id.
There are three levels of police investigation, two of which implicate the Fourth
Amendment. An arrest or detention for more than a short period must be justified by
probable cause. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans.
denied. Probable cause to arrest exists where the facts and circumstances within the
knowledge of the officers are sufficient to warrant a belief by a person of reasonable
caution that an offense has been committed and that the person to be arrested has
committed it. Id. (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949)).
Second, it is well-settled Fourth Amendment jurisprudence that police may, without a
warrant or probable cause, briefly detain an individual for investigatory purposes if,
based on specific and articulable facts, the officer has a reasonable suspicion that criminal
activity “may be afoot.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).
Accordingly, limited investigatory stops and seizures on the street involving a brief
question or two and a possible frisk for weapons can be justified by mere reasonable
suspicion. Id. When a law enforcement officer makes a casual and brief inquiry of a
citizen which involves neither an arrest nor a stop, the Fourth Amendment is not
implicated. Id.
Here, Kelly was ordered out of the car by officers with guns drawn and
immediately handcuffed when the vehicle in which she was a passenger arrived at
Goodwin’s house. See Tr. at 19 (Chief Kiphart testifying, after being asked what steps he
took after the car pulled up, “we had weapons out ordered them out of the vehicle. . . . 5 [O]nce we secured them . . . I started . . . speaking with Ms. Kelly.”). This was not a
“casual or brief inquiry,” nor was it a “limited investigatory stop[] . . . involving a brief
question or two.” Kelly was seized when her freedom of movement was restrained by a
show of authority immediately upon her arrival. Woodson v. State, 966 N.E.2d 135, 139
(Ind. Ct. App. 2012), trans. denied. Therefore, her detention and the ensuing search must
be supported by probable cause and authorized by one of the recognized exceptions to the
warrant requirement.
The pertinent inquiry regarding probable cause is whether the facts and
circumstances at the time of the arrest would lead a reasonably prudent person to believe
the suspect is committing or had committed a crime. Conwell v. State, 714 N.E.2d 764,
766-67 (Ind. Ct. App. 1999). The action here was precipitated by Goodwin’s call to
police. In Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230 (1978), our supreme court
considered whether probable cause for an arrest existed on the basis of a tip to police.
The court first noted that an informant’s reliability must be established before a finding of
probable cause can be made. Id. at 353, 380 N.E.2d at 1232. There are two categories of
informants: professional informants or anonymous tipsters and concerned or cooperative
citizens. Id. at 354, 380 N.E.2d at 1232. The reliability of professional informants or
anonymous tipsters “must be established by reference to underlying facts and
circumstances which indicate that the information is trustworthy . . . because information
of this type may be unreliable or self-serving . . . .” Id. When a citizen volunteers
information to the police, there may be more reason to believe that the information is
reliable because informants who come forward voluntarily are ordinarily motivated by
good citizenship or a genuine effort to aid law enforcement officers in solving a crime. 6 Id. The court noted that “[s]ome jurisdictions have therefore held that informants of this
type are to be considered reliable for the purpose of determining probable cause unless
incriminating circumstances exist which cast suspicion upon the informant’s reliability.”
Id. at 354, 380 N.E.2d at 1232-33. Even information volunteered by a citizen requires
some corroboration, however. Id. at 355, 380 N.E.2d at 1233. The information in
Pawloski was given to police in person by an acquaintance of the defendant to whom the
defendant had confessed setting fire to an apartment. The court held the police had
sufficient probable cause to order the defendant’s arrest because the tipster testified he
felt compelled to come forward with information to assist the police “even though it acted
to incriminate and betray the confidence of a friend [and] there were no circumstances
which would have placed [his] reliability . . . in question.” Id.
In Kellems v. State, 842 N.E.2d 352 (Ind. 2006), however, the court determined
Pawloski “goes a bit too far.” Id. at 356. Although continuing to believe there may be
greater indicia of reliability in a concerned citizen’s report to police versus a report by a
professional informant, “this goes only to reasonable suspicion, not, as the prior cases
suggest, probable cause.” Id. Police received a telephone call from a woman who
identified herself and reported seeing the defendant, who had no license or insurance,
driving intoxicated and with children in his vehicle. She described the vehicle and
provided the license plate number. An officer spotted a vehicle matching the description,
confirmed the license plate information, and initiated a traffic stop without observing any
traffic violations. The officer requested the defendant’s driver’s license, but the
defendant had only an identification card because he was an habitual traffic offender and
his license was suspended. A portable breath test was negative. The defendant was 7 charged with operating a vehicle while an habitual traffic offender. He moved to
suppress evidence gathered during the traffic stop, arguing the tip was insufficient to
provide police with reasonable suspicion. His motion was denied and he was found
guilty as charged.
On appeal, our supreme court affirmed “[b]ecause a tip from an identified
informant or concerned citizen coupled with some corroborative police investigation is
sufficient to create reasonable suspicion for an investigative stop . . . .” Id. at 353.
Specifically, the court pointed out the caller identified herself by name and birthdate and
the officer who conducted the stop knew her and where and with whom she lived, so that
she could be identified and held criminally responsible if she had knowingly given police
a false report. Id. at 356. The court also noted that the caller offered sufficient
information to allow police to corroborate her assertions: the description of the vehicle
and the direction in which it was traveling, the license plate number, the name of the
driver, and that there were children in the car, all of which the police were able to
confirm prior to or immediately upon conducting the investigatory stop. Id. Finally, the
court noted that the caller met the requirements for being classified as a concerned or
cooperative citizen because the record did not suggest incriminating circumstances that
would indicate her motive in calling was anything other than to assist police. Id. at 357.
As a “concerned citizen,” Goodwin called the Fortville Police Department and
reported that a man would arrive at her house in approximately fifteen minutes to sell her
cocaine. Because she had arranged the deal herself, she had personal knowledge of the
transaction she was reporting. Sergeant Fuller knew Goodwin because she was a prior
crime victim, and he had no reason to believe that she was not telling the truth. Sergeant 8 Fuller went to Goodwin’s house, thereby meeting her face-to-face and not relying on self-
identification over the phone to verify her identity as the tipster. Goodwin indicated she
knew of the dealer because “he had been selling cocaine to several of her friends . . . and
she was tired of seeing it and . . . she had gotten [his] phone number from another . . .
user that he was selling to.” Tr. at 11. While at Goodwin’s house, Goodwin received
three or four phone calls from which it was clear Goodwin was giving someone
directions to her house. A car arrived at Goodwin’s house within the time frame she had
indicated she was anticipating the dealer and Goodwin advised Sergeant Fuller that “he’s
here.” Id. Sergeant Fuller acknowledged Goodwin did not give him a name or
description of the dealer or a description of the car, and that she was known to drink
alcohol daily, although he did not “remember her being intoxicated” during his contact
with her. Tr. at 14.
The information Goodwin provided was not as specific as that provided by the
tipster in Kellems, given that Goodwin provided only a bare minimum description of the
dealer as African American and did not describe the vehicle at all, but Sergeant Fuller
actually met with Goodwin as opposed to merely taking a report over the phone as in
Kellems. In a face-to-face encounter, “a trained officer has the opportunity to assess
credibility and motive by observing facial expressions and subtle body language.” State
v. Glass, 769 N.E.2d 639, 643 (Ind. Ct. App. 2002), trans. denied. Goodwin received
several phone calls in Sergeant Fuller’s presence, and from what he could hear of the
conversation, it was clear that the male caller was seeking directions to her house. A
vehicle arrived at Goodwin’s house within the time frame she said the dealer was
expected, and Sergeant Fuller was able to gauge her reaction to its arrival. Moreover, 9 Goodwin was not merely susceptible to prosecution for false reporting, she was
susceptible to prosecution for involvement in a drug deal by calling police. Under the
totality of the circumstances, we conclude there was probable cause to support the
seizure.
2. Warrantless Vehicle Search
To dispense with procuring a search warrant, the State must demonstrate both
probable cause and an exception to the warrant requirement. The “automobile exception”
to the warrant requirement is applicable “when a vehicle is readily mobile and there is
probable cause to believe it contains contraband or evidence of a crime.” Meister v.
State, 933 N.E.2d 875, 878-79 (Ind. 2010) (citing Maryland v. Dyson, 527 U.S. 465, 467
(1999)). When there is probable cause that a vehicle contains evidence of a crime, a
warrantless search of the vehicle does not violate the Fourth Amendment because exigent
circumstances exist arising out of the likely disappearance of the vehicle. Id. at 879
(citing California v. Acevedo, 500 U.S. 565, 569 (1991)). In Myers v. State, 839 N.E.2d
1146 (Ind. 2005), our supreme court held that the automobile exception to the warrant
requirement “does not require any additional consideration of the likelihood, under the
circumstances, of the vehicle being driven away.” Id. at 1152. Rather, “the ‘ready
mobility’ requirement of the automobile exception . . . mean[s] that all operational, or
potentially operational, motor vehicles are inherently mobile . . . .” Id.
There is no dispute that the vehicle was operational; officers observed the vehicle
pull into the parking area at Goodwin’s home. The vehicle was therefore readily mobile
for purposes of the automobile exception and no separate exigent circumstances had to be
shown. Having already determined that probable cause existed, the warrantless search of 10 the vehicle was authorized by its ready mobility. See Meister, 933 N.E.2d at 880 (noting
the dearth of exigent circumstances where the driver was secured by police and there was
no threat of imminent destruction of evidence inside the vehicle because it was in police
control, but holding probable cause and ready mobility justified warrantless search). The
Fourth Amendment does not prohibit the search and the trial court did not clearly err in
denying Kelly’s motion to suppress evidence found in the warrantless search of the
vehicle.
B. Article 1, Section 11
Kelly also contends the warrantless search and seizure was in violation of Article
1, Section 11 of the Indiana Constitution. Like the Fourth Amendment, Section 11
affords individuals protection from unreasonable searches and seizures. Although the
text of the two provisions is virtually identical, we interpret and apply Section 11
independently. McLain v. State, 963 N.E.2d 662, 668 (Ind. Ct. App. 2012), trans. denied.
The legality of a governmental search under the Indiana Constitution turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. The totality of the circumstances requires consideration of both the degree of intrusion into the subject’s ordinary activities and the basis upon which the officer selected the subject of the search or seizure. Although there may be other relevant considerations under the circumstances, the reasonableness of a search or seizure turns on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizen’s ordinary activities, and 3) the extent of law enforcement needs.
Cochran v. State, 843 N.E.2d 980, 985 (Ind. Ct. App. 2006) (citations and quotation
marks omitted), trans. denied.
The degree of concern, suspicion, or knowledge that a violation has occurred was
high in this case, as we have already determined above that probable cause existed that 11 drugs were being transported for sale. The degree of intrusion was, as Kelly contends,
great, as police ordered her out of the vehicle with their guns drawn and she was
immediately handcuffed. The extent of law enforcement needs, contrary to Kelly’s
assertions, however, was also great. Kelly asserts that because it was apparent the dealer
did not know how to get to Goodwin’s home, Sergeant Fuller could have sought a
warrant or further investigated her claims instead of letting Goodwin direct him to her
house. That course of action, however, would have created the risk of the dealer
becoming frustrated or suspicious and going home or going elsewhere to sell the drugs.
Moreover, the fact that there is another, or possibly better, course of action for
conducting the investigation does not mean that the course of action police undertook is
unlawful. There was probable cause that a person in possession of drugs was imminently
expected at Goodwin’s home, and the totality of the circumstances indicates the police
action was reasonable. The trial court did not clearly err in denying Kelly’s motion to
suppress on this basis.
III. Incriminating Statements
Finally, Kelly contends her statements to officers after being seized
acknowledging she knew there were drugs in the car should be suppressed because the
officers violated the Fifth Amendment to the United States Constitution and Article 1,
Section 14 of the Indiana Constitution.
The Fifth Amendment provides that no person shall be compelled to be a witness
against himself in a criminal case. To protect the privilege against self-incrimination, a
person who is subject to custodial interrogation must be advised of her rights to remain
silent and to have an attorney present, and be warned that any statement she makes may 12 be used as evidence against her. Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“[T]he
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.”). As stated above,
Kelly was immediately removed from the vehicle and handcuffed upon arriving at
Goodwin’s home. Therefore, Kelly was in custody and subject to custodial interrogation.
See Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct. App. 2005) (“Custodial interrogation
is questioning initiated by law enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom in any significant way.”) (quotation and
citation omitted). Chief Kiphart began questioning Kelly without advising her of her
rights and elicited incriminating statements. Within minutes thereafter, Chief Kiphart did
advise Kelly of her rights, after which she made further incriminating statements. The
trial court found that her initial statements should be suppressed, but that the statements
she made after the advisement would be allowed. Kelly contends all of her statements
should be suppressed.
In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court disapproved of an
interrogation technique in which law enforcement officers purposefully do not give
Miranda warnings until after an interrogation is underway and a confession procured, and
then give Miranda warnings and secure a waiver of rights before obtaining a second
confession. Id. at 611-14. In that case, the defendant was questioned for thirty or forty
minutes about a fire-related death, with the officer “follow[ing] instructions . . . that he
refrain from giving Miranda warnings” before the interrogation. Id. at 604. During this
interrogation, the defendant admitted the fire was not accidental. After a twenty-minute 13 break, the defendant was given Miranda warnings and questioned further in relation to
her earlier admission. The Court observed that “when Miranda warnings are inserted in
the midst of coordinated and continuing interrogation, they are likely to mislead and
depriv[e] a defendant of knowledge essential to his ability to understand the nature of his
rights and the consequences of abandoning them.” Id. at 613-14 (quotation omitted,
alteration in original). In doing so, the Court contrasted the deliberate nature of the
Miranda omission in this case with the facts of Oregon v. Elstad, 470 U.S. 298 (1985). In
Elstad, officers went to a young suspect’s home to take him into custody, and while one
officer spoke briefly with the suspect’s mother, the other told the suspect he “felt” he was
involved in a burglary, and the suspect acknowledged he had been at the scene. Id. at
301. The suspect was then taken to the police station, where he was given Miranda
warnings before an interrogation during which the suspect made a full confession. The
Court held the second statement was admissible and voluntary, calling the officer’s initial
failure an “oversight” and noting the incident had “none of the earmarks of coercion.” Id.
at 315-16.
The facts of this case are more akin to Elstad than Seibert. Chief Kiphart
questioned Kelly for only two or three minutes before giving her Miranda warnings.
There is no indication that Chief Kiphart purposefully withheld Miranda warnings as part
of an intentional “question first” technique to obtain a confession. The cases cited by
Kelly in support of suppressing her post-Miranda statements involve lengthy initial
interrogations. See Morris v. State, 871 N.E.2d 1011 (Ind. Ct. App. 2007) (defendant
interviewed repeatedly at police station over a period of at least four hours prior to
Miranda warnings), trans. denied; Payne v. State, 854 N.E.2d 7 (Ind. Ct. App. 2006) 14 (defendant questioned for seven hours without Miranda warnings); Drummond v. State,
831 N.E.2d 781 (Ind. Ct. App. 2005) (defendant interrogated for two hours before
Miranda warnings were given). Here, the entire questioning at the scene lasted less than
half an hour. The initial questioning lasted but a few minutes before Kelly was given a
Miranda advisement. Under these circumstances, we hold Seibert does not mandate the
suppression of Kelly’s post-Miranda statements, and the trial court did not clearly err in
denying her motion to suppress as to those statements.
Conclusion
Neither the Fourth Amendment nor Article 1, Section 11 prohibit the warrantless
search and seizure of Kelly and her vehicle, and the trial court did not err in denying her
motion to suppress evidence discovered as a result. Kelly’s post-Miranda statements are
admissible and the trial court did not err in denying her motion to suppress as to those
statements. The trial court’s order is affirmed, and this case is remanded for further
proceedings.
Affirmed.
BAILEY, J., and MATHIAS, J., concur.