MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 19 2017, 8:53 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kimberley M. Couch, September 19, 2017 Appellant-Defendant, Court of Appeals Case No. 32A01-1704-CR-878 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Rhett M. Stuard, Appellee-Plaintiff. Judge Trial Court Cause No. 32D02-1607-CM-1089
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 1 of 7 Case Summary [1] Kimberley M. Couch (“Couch”) appeals her conviction of Possession of
Paraphernalia, as a Class C misdemeanor.1 She challenges the admission of
evidence obtained during a warrantless search of her residence.
[2] We reverse.
Facts and Procedural History [3] On July 9, 2016, Couch answered a knock at her front door. At the door was
Hendricks County Sheriff’s Department Deputy Robert Lenover (“Deputy
Lenover”) responding to a complaint that an odor of marijuana had emanated
from the residence. Deputy Lenover asked if Couch was the homeowner and
Couch replied that she was renting the property. Couch then stepped outside.
[4] Deputy Lenover told Couch that he smelled marijuana, at which point Couch
admitted to smoking marijuana before he arrived. Deputy Lenover read Couch
her Miranda rights and then told Couch that he could either apply for a search
warrant or she could let him inside and give him the contraband. Couch agreed
to let Deputy Lenover enter the residence.
[5] Once inside, Couch gave Deputy Lenover a hollowed-out book containing
rolling papers and a smoking pipe. Shortly thereafter, a houseguest retrieved a
1 Ind. Code § 35-48-4-8.3(b)(1).
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 2 of 7 bag containing a plant material that resembled marijuana. Deputy Lenover
then advised Couch that he would apply for a criminal summons.
[6] Couch was charged with Possession of Marijuana, as a Class B Misdemeanor, 2
and Possession of Paraphernalia, as a Class C misdemeanor, and a bench trial
was conducted on February 10, 2017. The trial court found Couch not guilty of
Possession of Marijuana and guilty of Possession of Paraphernalia, and
imposed a suspended jail sentence of sixty days and 180 days of probation.
[7] Couch now appeals.
Discussion and Decision [8] Couch argues, as she did at trial, that the evidence procured during the
warrantless search was inadmissible because it was obtained in violation of her
constitutional rights under the Fourth Amendment to the United States
Constitution and Article 1, section 11 of the Indiana Constitution. A trial court
has broad discretion in ruling on the admissibility of evidence but where a
constitutional violation is alleged, our standard of review is de novo. Leonard v.
State, 73 N.E.3d 155, 168 (Ind. 2017). Moreover, where our constitutional
evaluation depends on disputed historical facts, we “consider conflicting
evidence most favorably to the trial court’s ruling.” Campos v. State, 885 N.E.2d
2 I.C. § 35-48-4-11(a)(1).
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 3 of 7 590, 596 (Ind. 2008). Thus, we do not reweigh the evidence but we decide de
novo whether the evidence established the constitutionality of a search. 3 See id.
[9] Here, Deputy Lenover conducted a warrantless search of the residence.
Warrantless searches are “per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). “One well-
recognized exception to the warrant requirement is a voluntary and knowing
consent to search.” Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Moreover,
Article 1, section 11 of the Indiana Constitution “requires that a person in
custody explicitly waive the right to counsel before giving a valid consent to a
search.’” Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (citing Pirtle v. State,
263 Ind. 16, 323 N.E.2d 634, 640 (1975)). Accordingly, for a person in custody
to validly consent to a search, the person must be informed of the right to
consult with counsel. Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (noting the
requirement of a Pirtle advisement and that a Miranda warning is insufficient).
[10] Couch argues that she was in custody when she agreed to the search and that
because she was not informed of her right to consult with counsel, she did not
tender valid consent. In distinguishing between custodial encounters and non-
custodial encounters, we consider the circumstances of the encounter and
3 Couch argues that, at one point, the trial court applied the incorrect standard in reviewing her constitutional claim. However, because we are conducting de novo review of this question of law, we need not address Couch’s contention.
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 4 of 7 “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, 655 N.E.2d at 55. Indeed, the aim of Pirtle and
its progeny is to “police the line between ordinary investigative detentions and
full-blown custodial interrogations by examining the circumstances for
objectively overpowering, coercive, or restraining police behavior, such that the
facts demonstrate a degree associated with a formal arrest.” Meredith v. State,
906 N.E.2d 867, 873-74 (Ind. 2009) (quotation marks omitted). Several
circumstances are relevant to this inquiry, including but not limited to
whether the defendant was read his Miranda rights, handcuffed, restrained in any way, 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, 868 N.E.2d at 1120-21; and the length of the detention, e.g., Cooley v.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 19 2017, 8:53 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kimberley M. Couch, September 19, 2017 Appellant-Defendant, Court of Appeals Case No. 32A01-1704-CR-878 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Rhett M. Stuard, Appellee-Plaintiff. Judge Trial Court Cause No. 32D02-1607-CM-1089
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 1 of 7 Case Summary [1] Kimberley M. Couch (“Couch”) appeals her conviction of Possession of
Paraphernalia, as a Class C misdemeanor.1 She challenges the admission of
evidence obtained during a warrantless search of her residence.
[2] We reverse.
Facts and Procedural History [3] On July 9, 2016, Couch answered a knock at her front door. At the door was
Hendricks County Sheriff’s Department Deputy Robert Lenover (“Deputy
Lenover”) responding to a complaint that an odor of marijuana had emanated
from the residence. Deputy Lenover asked if Couch was the homeowner and
Couch replied that she was renting the property. Couch then stepped outside.
[4] Deputy Lenover told Couch that he smelled marijuana, at which point Couch
admitted to smoking marijuana before he arrived. Deputy Lenover read Couch
her Miranda rights and then told Couch that he could either apply for a search
warrant or she could let him inside and give him the contraband. Couch agreed
to let Deputy Lenover enter the residence.
[5] Once inside, Couch gave Deputy Lenover a hollowed-out book containing
rolling papers and a smoking pipe. Shortly thereafter, a houseguest retrieved a
1 Ind. Code § 35-48-4-8.3(b)(1).
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 2 of 7 bag containing a plant material that resembled marijuana. Deputy Lenover
then advised Couch that he would apply for a criminal summons.
[6] Couch was charged with Possession of Marijuana, as a Class B Misdemeanor, 2
and Possession of Paraphernalia, as a Class C misdemeanor, and a bench trial
was conducted on February 10, 2017. The trial court found Couch not guilty of
Possession of Marijuana and guilty of Possession of Paraphernalia, and
imposed a suspended jail sentence of sixty days and 180 days of probation.
[7] Couch now appeals.
Discussion and Decision [8] Couch argues, as she did at trial, that the evidence procured during the
warrantless search was inadmissible because it was obtained in violation of her
constitutional rights under the Fourth Amendment to the United States
Constitution and Article 1, section 11 of the Indiana Constitution. A trial court
has broad discretion in ruling on the admissibility of evidence but where a
constitutional violation is alleged, our standard of review is de novo. Leonard v.
State, 73 N.E.3d 155, 168 (Ind. 2017). Moreover, where our constitutional
evaluation depends on disputed historical facts, we “consider conflicting
evidence most favorably to the trial court’s ruling.” Campos v. State, 885 N.E.2d
2 I.C. § 35-48-4-11(a)(1).
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 3 of 7 590, 596 (Ind. 2008). Thus, we do not reweigh the evidence but we decide de
novo whether the evidence established the constitutionality of a search. 3 See id.
[9] Here, Deputy Lenover conducted a warrantless search of the residence.
Warrantless searches are “per se unreasonable under the Fourth Amendment—
subject only to a few specifically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). “One well-
recognized exception to the warrant requirement is a voluntary and knowing
consent to search.” Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Moreover,
Article 1, section 11 of the Indiana Constitution “requires that a person in
custody explicitly waive the right to counsel before giving a valid consent to a
search.’” Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (citing Pirtle v. State,
263 Ind. 16, 323 N.E.2d 634, 640 (1975)). Accordingly, for a person in custody
to validly consent to a search, the person must be informed of the right to
consult with counsel. Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (noting the
requirement of a Pirtle advisement and that a Miranda warning is insufficient).
[10] Couch argues that she was in custody when she agreed to the search and that
because she was not informed of her right to consult with counsel, she did not
tender valid consent. In distinguishing between custodial encounters and non-
custodial encounters, we consider the circumstances of the encounter and
3 Couch argues that, at one point, the trial court applied the incorrect standard in reviewing her constitutional claim. However, because we are conducting de novo review of this question of law, we need not address Couch’s contention.
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 4 of 7 “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, 655 N.E.2d at 55. Indeed, the aim of Pirtle and
its progeny is to “police the line between ordinary investigative detentions and
full-blown custodial interrogations by examining the circumstances for
objectively overpowering, coercive, or restraining police behavior, such that the
facts demonstrate a degree associated with a formal arrest.” Meredith v. State,
906 N.E.2d 867, 873-74 (Ind. 2009) (quotation marks omitted). Several
circumstances are relevant to this inquiry, including but not limited to
whether the defendant was read his Miranda rights, handcuffed, restrained in any way, 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, 868 N.E.2d at 1120-21; and the length of the detention, e.g., Cooley v. State, 682 N.E.2d 1277, 1279 (Ind. 1997).
Id. at 874.
[11] Here, Deputy Lenover initiated contact with Couch and confirmed that she
occupied the residence. When Couch stepped outside, Deputy Lenover stated
that he smelled marijuana—a point when any reasonable person would feel
under suspicion. Couch then made an incriminating admission and,
immediately thereafter, Deputy Lenover gave a Miranda advisement and sought
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 5 of 7 consent to search the residence. When viewed objectively, we conclude that
these circumstances were sufficiently coercive to require the constitutional
protection of a Pirtle advisement. That is, “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, 655 N.E.2d at 55; see Peel v. State, 868 N.E.2d
569 (Ind. Ct. App. 2007) (identifying a prior incriminating admission as a key
factor when concluding that a police encounter had become custodial); State v.
Linck, 708 N.E.2d 60, 63 (Ind. Ct. App. 1999), trans. vacated (determining that
the defendant was in custody after admitting to smoking marijuana “because a
reasonable person would not have felt free to leave following that admission”).
[12] Because Couch did not receive a Pirtle advisement, Deputy Lenover did not
obtain valid consent to search the residence. Moreover, the State has not
identified any other exception to justify the warrantless search. Thus, the
warrantless search offended the Indiana Constitution and the trial court erred in
admitting evidence procured during the search. Disregarding that evidence,
there is insufficient evidence to support Couch’s conviction of Possession of
Paraphernalia. We therefore reverse and order the trial court to vacate the
conviction.
Conclusion [13] The trial court erred in admitting evidence obtained during an unconstitutional
search of Couch’s residence.
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 6 of 7 [14] Reversed.
Baker, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017 Page 7 of 7