Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 25 2012, 8:26 am court except for the purpose of establishing the defense of res judicata, collateral CLERK of the supreme court, estoppel, or the law of the case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN F. HURLEY GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
M.M., ) ) Appellant-Respondent, ) ) vs. ) No. 49A05-1203-JV-102 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Scott B. Stowers, Magistrate Cause No. 49D09-1110-JD-2763
September 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge Appellant-Respondent M.M. appeals from the finding that she committed what
would have been Class A misdemeanor marijuana possession1 if committed by an adult.
M.M. contends that the juvenile court abused its discretion in admitting certain evidence
at her delinquency hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 3:15 p.m. on October 18, 2011, Indianapolis Metropolitan Police
Officer Christopher Mills was dispatched to the area of 700 North Grant Avenue on a
report of several persons in a vehicle possibly smoking narcotics. Officer Mills located
the vehicle described in the dispatch, which was parked on the curb facing South, and
parked in front of the vehicle but “offset” to the East, facing North. Tr. p. 32. Officer
Edward Fiscus also arrived in his car, also parking in front of, but offset to, the vehicle.
Neither Officer Mills nor Officer Fiscus had activated his lights or siren, and their cars
were not blocking the vehicle’s path.
Officers Mills and Fiscus approached the vehicle on foot, Officer Mills on the
driver’s side and Officer Fiscus on the passenger’s. Officer Mills had not drawn his
weapon, and there is no indication that Officer Fiscus had, either. Five individuals were
seated in the vehicle, two black males in the front, and, in the back, A.D. behind the
driver, M.M. in the middle, and T.L. behind the front passenger. Officer Mills detected
the odor of burnt marijuana as he approached the vehicle. Officer Mills “asked if there
was any marijuana inside the vehicle.” Tr. p. 11. T.L. responded that he had marijuana,
so Officer Mills walked around the vehicle, removed T.L., obtained the marijuana that 1 Ind. Code § 35-48-4-11 (2011).
2 T.L. produced, handcuffed him, and sat him on the curb. A.D. then said that she too had
marijuana, reached under the seat, and handed some marijuana to officer Mills. As A.D.
did so, M.M. stated that the marijuana was hers also and that she and A.D. had purchased
it together. A.D. and M.M. were asked to step from the vehicle and were then
handcuffed and arrested for marijuana possession. A female police officer was
summoned to search A.D. and M.M. and found a small bag of marijuana in M.M.’s
brassiere.
On October 18, 2011, M.M. was alleged to be a delinquent child for committing
what would be Class A misdemeanor marijuana possession if committed by an adult. On
January 12, 2012, after a hearing, the juvenile court entered a true finding. On February
8, 2012, the juvenile court placed M.M. on probation until August 8, 2012, and ordered
her to complete thirty hours of community service.
DISCUSSION AND DECISION
Whether the Juvenile Court Abused its Discretion in Admitting Certain Evidence
M.M. frames her appeal as a challenge to the denial of motions to suppress
evidence. As M.M. herself notes, however, because a hearing has been held, the issue is
more appropriately addressed as a challenge to the admission of evidence. We will
reverse a juvenile court’s ruling on the admissibility of evidence only when it abused its
discretion. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). An abuse of
discretion may occur if a decision is clearly against the logic and effect of the facts and
circumstances before the court. Id. Regarding the “abuse of discretion” standard
generally, the Indiana Supreme Court has observed, “to the extent a ruling is based on an
3 error of law or is not supported by the evidence it is reversible, and the [juvenile] court
has no discretion to reach the wrong result.” Pruitt v. State, 834 N.E.2d 90, 104 (Ind.
2005).
M.M. contends that that her statements to Officer Mills should not have been
admitted because police had not advised her of her rights, provided her with an
opportunity for meaningful consultation, or obtained a waiver of rights. M.M.
additionally contends that the marijuana found in her brassiere should not have been
admitted because it was only found because of her statements.
Indiana Code section 31-32-5-1 provides that
Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only: (1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins with the waiver; (2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if: (A) that person knowingly and voluntarily waives the right; (B) that person has no interest adverse to the child; (C) meaningful consultation has occurred between that person and the child; and (D) the child knowingly and voluntarily joins with the waiver; or (3) by the child, without the presence of a custodial parent, guardian, or guardian ad litem, if: (A) the child knowingly and voluntarily consents to the waiver; and (B) the child has been emancipated under IC 31-34-20-6 or IC 31- 37-19-27, by virtue of having married, or in accordance with the laws of another state or jurisdiction.
“However, as a general rule, when a juvenile who is not in custody gives a
statement to police, neither the safeguards of Miranda warnings nor the juvenile waiver
statute is implicated.” S.D. v. State, 937 N.E.2d 425, 430 (Ind. Ct. App. 2010), trans.
4 denied. Consequently, if M.M. was not in custody when she made her incriminating
statements, her arguments regarding the juvenile waiver statute are fatally undercut.
For an interrogation to be custodial in nature, one does not necessarily have to be under arrest. C.L.M. v. State, 874 N.E.2d 386, 390 (Ind. Ct. App. 2007). To be custodial in the non-arrest context, the interrogation must commence after the person’s freedom of action has been deprived in any significant way. Id.; see also Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (“When determining whether a person was in custody or deprived of his freedom, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (quotations omitted)). This is determined by examining whether a reasonable person in similar circumstances would believe he is not free to leave. Luna, 788 N.E.2d at 833.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 25 2012, 8:26 am court except for the purpose of establishing the defense of res judicata, collateral CLERK of the supreme court, estoppel, or the law of the case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ELLEN F. HURLEY GREGORY F. ZOELLER Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
M.M., ) ) Appellant-Respondent, ) ) vs. ) No. 49A05-1203-JV-102 ) STATE OF INDIANA, ) ) Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Marilyn A. Moores, Judge The Honorable Scott B. Stowers, Magistrate Cause No. 49D09-1110-JD-2763
September 25, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge Appellant-Respondent M.M. appeals from the finding that she committed what
would have been Class A misdemeanor marijuana possession1 if committed by an adult.
M.M. contends that the juvenile court abused its discretion in admitting certain evidence
at her delinquency hearing. We affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 3:15 p.m. on October 18, 2011, Indianapolis Metropolitan Police
Officer Christopher Mills was dispatched to the area of 700 North Grant Avenue on a
report of several persons in a vehicle possibly smoking narcotics. Officer Mills located
the vehicle described in the dispatch, which was parked on the curb facing South, and
parked in front of the vehicle but “offset” to the East, facing North. Tr. p. 32. Officer
Edward Fiscus also arrived in his car, also parking in front of, but offset to, the vehicle.
Neither Officer Mills nor Officer Fiscus had activated his lights or siren, and their cars
were not blocking the vehicle’s path.
Officers Mills and Fiscus approached the vehicle on foot, Officer Mills on the
driver’s side and Officer Fiscus on the passenger’s. Officer Mills had not drawn his
weapon, and there is no indication that Officer Fiscus had, either. Five individuals were
seated in the vehicle, two black males in the front, and, in the back, A.D. behind the
driver, M.M. in the middle, and T.L. behind the front passenger. Officer Mills detected
the odor of burnt marijuana as he approached the vehicle. Officer Mills “asked if there
was any marijuana inside the vehicle.” Tr. p. 11. T.L. responded that he had marijuana,
so Officer Mills walked around the vehicle, removed T.L., obtained the marijuana that 1 Ind. Code § 35-48-4-11 (2011).
2 T.L. produced, handcuffed him, and sat him on the curb. A.D. then said that she too had
marijuana, reached under the seat, and handed some marijuana to officer Mills. As A.D.
did so, M.M. stated that the marijuana was hers also and that she and A.D. had purchased
it together. A.D. and M.M. were asked to step from the vehicle and were then
handcuffed and arrested for marijuana possession. A female police officer was
summoned to search A.D. and M.M. and found a small bag of marijuana in M.M.’s
brassiere.
On October 18, 2011, M.M. was alleged to be a delinquent child for committing
what would be Class A misdemeanor marijuana possession if committed by an adult. On
January 12, 2012, after a hearing, the juvenile court entered a true finding. On February
8, 2012, the juvenile court placed M.M. on probation until August 8, 2012, and ordered
her to complete thirty hours of community service.
DISCUSSION AND DECISION
Whether the Juvenile Court Abused its Discretion in Admitting Certain Evidence
M.M. frames her appeal as a challenge to the denial of motions to suppress
evidence. As M.M. herself notes, however, because a hearing has been held, the issue is
more appropriately addressed as a challenge to the admission of evidence. We will
reverse a juvenile court’s ruling on the admissibility of evidence only when it abused its
discretion. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). An abuse of
discretion may occur if a decision is clearly against the logic and effect of the facts and
circumstances before the court. Id. Regarding the “abuse of discretion” standard
generally, the Indiana Supreme Court has observed, “to the extent a ruling is based on an
3 error of law or is not supported by the evidence it is reversible, and the [juvenile] court
has no discretion to reach the wrong result.” Pruitt v. State, 834 N.E.2d 90, 104 (Ind.
2005).
M.M. contends that that her statements to Officer Mills should not have been
admitted because police had not advised her of her rights, provided her with an
opportunity for meaningful consultation, or obtained a waiver of rights. M.M.
additionally contends that the marijuana found in her brassiere should not have been
admitted because it was only found because of her statements.
Indiana Code section 31-32-5-1 provides that
Any rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only: (1) by counsel retained or appointed to represent the child if the child knowingly and voluntarily joins with the waiver; (2) by the child’s custodial parent, guardian, custodian, or guardian ad litem if: (A) that person knowingly and voluntarily waives the right; (B) that person has no interest adverse to the child; (C) meaningful consultation has occurred between that person and the child; and (D) the child knowingly and voluntarily joins with the waiver; or (3) by the child, without the presence of a custodial parent, guardian, or guardian ad litem, if: (A) the child knowingly and voluntarily consents to the waiver; and (B) the child has been emancipated under IC 31-34-20-6 or IC 31- 37-19-27, by virtue of having married, or in accordance with the laws of another state or jurisdiction.
“However, as a general rule, when a juvenile who is not in custody gives a
statement to police, neither the safeguards of Miranda warnings nor the juvenile waiver
statute is implicated.” S.D. v. State, 937 N.E.2d 425, 430 (Ind. Ct. App. 2010), trans.
4 denied. Consequently, if M.M. was not in custody when she made her incriminating
statements, her arguments regarding the juvenile waiver statute are fatally undercut.
For an interrogation to be custodial in nature, one does not necessarily have to be under arrest. C.L.M. v. State, 874 N.E.2d 386, 390 (Ind. Ct. App. 2007). To be custodial in the non-arrest context, the interrogation must commence after the person’s freedom of action has been deprived in any significant way. Id.; see also Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (“When determining whether a person was in custody or deprived of his freedom, the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” (quotations omitted)). This is determined by examining whether a reasonable person in similar circumstances would believe he is not free to leave. Luna, 788 N.E.2d at 833.
Id.
M.M. has failed to establish that she was in custody when Officer Mills asked if
there was any marijuana in the vehicle. At a little after three in the afternoon, two
officers, neither of whom had driven to the scene with lights or siren on, approached the
vehicle in which M.M. sat. The vehicle was not blocked in and neither officer apparently
had drawn a weapon. Upon detecting the odor of burnt marijuana, Officer Mills asked if
there was any marijuana in the car. There is no indication that at any point either officer
said or otherwise indicated that response to the question was mandatory or that the
vehicle’s occupants were not free to go about their business. The Indiana Supreme Court
has held that “a police officer who neither explicitly nor implicitly communicates that a
person is not free to go about his or her business may ask questions of the person to
investigate allegations of criminal activity without implicating the Fourth Amendment[.]”
Clarke v. State, 868 N.E.2d 1114, 1116 (Ind. 2007).
Clarke, in fact, is a case in which what can only be described as more coercive
5 police behavior was nonetheless held not to result in custody. In Clarke, an Indianapolis
police officer responded to a report of drugs being sold out of a car, arriving at the scene
with her lights activated and her spotlight trained upon the two individuals inside the car
in question. Id. The officer obtained information from Clarke and the passenger,
checked both occupants for warrants, and returned the information. Id. at 1117. The
officer asked if there was anything illegal in the car, and Clarke replied that there was
not. Id. The officer asked Clarke ‘if he cared if [she] searched his car,’ and Clarke
responded, ‘I don’t have anything in the car.’” Id. “According to [the officer], she then
asked Clarke ‘Do you mind if I search it?’ and Clarke responded, ‘No,’ and ‘voluntarily
opened his door and got out of the car on his own.’” Id. As the search was conducted,
Clarke and the passenger were watched by another police officer on the sidewalk. Id.
The Indiana Supreme Court held that Clarke and the passenger were not in
custody for purposes of the Fourth Amendment or Article I, section 11 of the Indiana
Constitution. Id. at 1119, 1120-21. In so doing, the Clarke Court noted that “[t]here is
no evidence that [the officer] conveyed [the] message [that compliance with her requests
was required]” and that “[h]er mere presence as a uniformed law enforcement officer
does not convert her questions into commands.” Id. at 1119 (citing Fla. v. Bostick, 501
U.S. 429, 434-35 (1991)). Here, in addition to neither officer indicating that responding
to Officer Hill’s question was mandatory, the question was only asked once and neither
officer had activated his lights or spotlight. As in Clarke, the mere presence of Officers
Hill and Fiscus as uniformed officers did not convert Officer Hill’s question into a
command. M.M. has failed to establish that she was in custody, and the juvenile waiver
6 statute is therefore not implicated. Consequently, M.M. has failed to establish that the
trial court abused its discretion in admitting her statements and the marijuana found on
her person.
We affirm the judgment of the juvenile court.
ROBB, C.J., and BAKER, J., concur.