FILED Apr 03 2020, 8:45 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Phyllis J. Emerick Curtis T. Hill, Jr. Bloomington, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tony Bethel Atkins, April 3, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-951 v. Appeal from the Monroe Circuit Court State of Indiana, The Honorable Mary Ellen Appellee-Plaintiff. Diekhoff, Judge Trial Court Cause No. 53C05-1710-F1-1100
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 1 of 20 Case Summary [1] Tony Atkins appeals the trial court’s grant of the State’s motion to correct error
regarding the trial court’s earlier grant of Atkins’ motion to suppress. 1 We
reverse and remand.
Issues [2] Atkins raises two issues, which we revise and restate as:
I. Whether Atkins was in custody during the search of his backpack and questioning.
II. Whether the search of Atkins’ backpack violated his rights under the Indiana Constitution.
III. Whether the questioning of Atkins violated his rights under the United States Constitution.
Facts [3] On the evening of October 12, 2017, at 7:45 p.m., Darren Hsu and Mark
Lambert reported to the Bloomington Police Department that two men with
handguns entered their apartment and demanded marijuana. The men beat
Lambert until he was unconscious and stole marijuana and electronics,
including four laptops. Hsu reported that, earlier in the evening, “G” stopped
by the apartment to purchase marijuana and behaved oddly. Hsu and Lambert
knew “G” through Ricky Spence.
1 We held oral argument in this case on March 10, 2020, at Purdue University Northwest. We thank counsel for their advocacy and extend our appreciation to Purdue University Northwest for its hospitality.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 2 of 20 [4] The officers located Spence, and Spence reported that “G” was Glenn Williams
and that Williams lived at the Town and Country Apartments. Spence reported
that Williams’ cousin, Atkins, was in town from Indianapolis and was with
Williams on that day. At approximately 10:00 p.m., Detectives Jacob Hunter,
Josh Taylor, and Baker 2 went to the apartment complex and located a vehicle
with a license plate number that was registered to “Williams.” The officers
then observed two men leaving an apartment building and approached them.
When questioned, the two men identified themselves as Williams and Atkins.
[5] Other uniformed officers arrived on the scene. Detective Hunter and Officer
Fabris 3 were wearing body cameras, which captured the following events.
Officers separated the two men, and Detective Hunter began talking to Atkins.
Detective Hunter searched Atkins’ person for weapons and found no weapons.
Detective Hunter informed Atkins that they were investigating a burglary and
that Atkins’ “name was put out there.” State’s Ex. A. Atkins claimed that he
had just arrived in Bloomington twenty minutes earlier from Indianapolis.
[6] Atkins was carrying a backpack, and Detective Hunter asked if the backpack
contained any weapons. Atkins responded that it did not, and Detective
Hunter asked if he could check the backpack. Atkins consented, and Detective
Hunter said, “You can say no, request a warrant, or ask for a lawyer if you
2 Detective Baker’s full name is not evident in the record. 3 Officer Fabris’ full name is not evident in the record.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 3 of 20 want.” Id. Atkins continued to deny that he had any weapons. They went to a
lighted area, and Atkins opened his backpack for Detective Hunter. The
backpack contained “multiple [laptops] or electronic devices,” and Detective
Hunter requested to see the laptops. Tr. Vol. II p. 10. Atkins zipped the
backpack and said, “Why do I got [sic] to pull my stuff out?” State’s Ex. A.
Atkins continued to deny that he had anything to do with the incident. Atkins
said he had a “witness” to corroborate his claim that he had just arrived in
Bloomington, and Atkins started to walk toward the witness. Id. Detective
Hunter requested Atkins to come back and repeatedly told Atkins to sit down
on a curb. According to Detective Hunter, it is a “fair statement” that Atkins
“was not free to leave” at that point. Tr. Vol. II p. 18. After a discussion with
another officer, Atkins said he needed to use the restroom, and Detective
Hunter told Atkins to sit back down.
[7] Detective Hunter informed Atkins that he was investigating a burglary and that
Williams was mentioned. Atkins continued to deny any involvement.
Detective Hunter questioned Atkins regarding the time he arrived in
Bloomington and what he had been doing. Detective Hunter again asked to see
Atkins’ laptops, and Atkins continued to ask why Detective Hunter needed to
go through his personal items. Detective Hunter told Atkins that laptops were
stolen in the robbery and repeatedly tried to convince Atkins to let Detective
Hunter see the laptops, but Atkins refused. Atkins said, “Wait, so you saying,
so I don’t have my rights so y’all can go through my personal stuff.” State’s Ex.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 4 of 20 A. Detective Hunter responded, “Does it look like I’m going through your stuff
right now.” Id.
[8] After more refusals from Atkins, Detective Hunter walked away to talk to
Williams, and Detective Baker talked to Atkins. Atkins’ discussion with
Detective Baker was not recorded; however, Detective Hunter’s body camera
was recording, and during Detective Hunter’s conversation with Williams,
Atkins could be heard having a loud argument with Detective Baker. Williams
informed Detective Hunter that Atkins arrived in Bloomington at
approximately 4:00 p.m.
[9] After approximately ten minutes, Detective Hunter returned to Atkins.
Detective Baker can be heard saying to Atkins, “I get it, but when we’re asking
questions, you gotta, you gotta cooperate, you know what I’m saying? Because
it ain’t like we just gonna disappear and walk off.” Id. Detective Baker then
told Detective Hunter that Atkins claimed to have purchased the laptops shortly
before the officers arrived.
[10] Detective Hunter asked Atkins, “So do you mind if I bring it over here and you
can pull it out and I can just have a look at that?” Id. Atkins answered, “Yeah,
I’ll pull it out.” Id. Atkins said that he purchased the backpack containing the
three laptops for $450.00. Detective Hunter then examined the laptops, one of
which had a username of Mark Lambert. At this point, the interaction between
Atkins and the officers lasted almost thirty minutes. Approximately fifteen or
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 5 of 20 twenty minutes later, Atkins was handcuffed and transported to the police
station.
[11] On October 18, 2017, the State charged Atkins with: (1) burglary, a Level 1
felony; (2) robbery, a Level 2 felony; and (3) armed robbery, a Level 3 felony.
On August 15, 2018, Atkins filed a motion to suppress. Atkins argued that: (1)
the search of his backpack violated his Fourth Amendment rights under the
United States Constitution and his rights under Article 1, Section 11 of the
Indiana Constitution; and (2) the interrogation violated his rights under the
Fifth Amendment of the U.S. Constitution and Article 1, Section 14 of the
Indiana Constitution. In particular, Atkins argued that his rights under Pirtle v.
State, 263 Ind. 16, 323 N.E.2d 634 (1975), and Miranda v. Arizona, 384 U.S. 436,
444, 86 S. Ct. 1602 (1966), were violated. Atkins requested the suppression of:
(1) the evidence seized during the search of his backpack; and (2) his statements
to the officers.
[12] At the suppression hearing, Atkins testified that he did not feel free to leave
during the incident in the parking lot; he was not given Miranda warnings; he
was not informed that he had the right to refuse to consent to a search of his
property; and he was not informed that he had a right to an attorney. After the
hearing and briefing by the parties, the trial court granted Atkins’ motion to
suppress on December 28, 2018. The trial court found:
[T]he facts and analysis for the custody determination for Miranda are substantively the same as those made for Pirtle.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 6 of 20 In conclusion, many of the factors considered by courts on the issues of Pirtle and Miranda are met in this case: Atkins’ freedom of movement was curtailed when he was directed to sit on the curb after having begun to walk off; his having a continual police presence while sitting on the curb; not being accommodated when he indicated he needed to urinate; multiple requests to search were not accompanied by a Pirtle advisement after an advisement of a state constitutional right was really not an advisement of a right at all; and the officer’s words and actions implied the possibility of arrest or detention or at the very least that Atkins was not free to go about his business. Under these circumstances, a reasonable person would believe that he “was under arrest or not free to resist the entreaties of the police.” Sellmer v. State, 842 N.E.2d 363.
Appellant’s App. Vol. II p. 65.
[13] In January 2019, the Honorable Teresa D. Harper, who granted Atkins’ motion
to suppress, retired; the new trial court judge recused from this case. Another
trial court judge, the Honorable Mary Ellen Diekhoff, was assigned this case.
On January 28, 2019, the State filed a motion to correct error. Judge Diekhoff
granted the State’s motion to correct error and reversed Judge Harper’s order
granting Atkins’ motion to suppress.
[14] In determining whether Atkins was in custody and entitled to Pirtle and Miranda
warnings, Judge Diekhoff considered factors identified by our Supreme Court
in Meredith v. State, 906 N.E.2d 867, 873-74 (Ind. 2009). The trial court
concluded:
Atkins’ interaction with the police clearly implicates only two of the factors enunciated by the court in Meredith: the police
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 7 of 20 suggested Atkins should cooperate and that he was not free to go about his business. The other factors are either not present at all, or were not sufficiently shown by the defense. The defense correctly notes and, indeed, their argument repeatedly presses upon the well-established notion that the custody inquiry is holistic and based on a “totality of circumstances,” rather than on a mechanical tallying of certain essential elements. However, courts regularly employ just such a tally of factors, not in blind reliance on blackletter requisites, but as an indispensable guide to objective and fair application of the law to specific circumstances. In this case, some of these factors are clearly, undeniably met, but too many are not or not certainly enough. As the court in Meredith was concerned to highlight, these factors are not exhaustive, exclusive, or even necessarily determinative in every case. However, given the lack of circumstances highlighted by the defense not falling within the remit of one or more of these factors, it would seem that their totality and the “totality of the circumstances” are effectively the same.
Id. at 100-01. The trial court also concluded that Atkins’ consent to search the
backpack was not the result of duress or coercion. The trial court found no
violation of Pirtle or Miranda and reversed the earlier grant of Atkins’ motion to
suppress.
[15] Atkins filed a motion to certify the order for interlocutory appeal, which the
trial court granted. This Court accepted jurisdiction over Atkins’ interlocutory
appeal pursuant to Indiana Appellate Rule 14(B).
Analysis [16] Atkins appeals the grant of the State’s motion to correct error and denial of
Atkins’ motion to suppress the results of the search of Atkins’ backpack and his
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 8 of 20 statements to the officers. We review a trial court’s ruling on a motion to
correct error for an abuse of discretion. State v. Reinhart, 112 N.E.3d 705, 709-
10 (Ind. 2018). “When a trial court denies a motion to suppress evidence, we
necessarily review that decision ‘deferentially, construing conflicting evidence
in the light most favorable to the ruling.’” Marshall v. State, 117 N.E.3d 1254,
1258 (Ind. 2019) (quoting Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014)), cert.
denied, 140 S. Ct. 113 (2019). We, however, consider any substantial and
uncontested evidence favorable to the defendant. Id. We review the trial
court’s factual findings for clear error, and we decline invitations to reweigh
evidence or judge witness credibility. Id. “If the trial court’s decision denying
‘a defendant’s motion to suppress concerns the constitutionality of a search or
seizure,’ then it presents a legal question that we review de novo.” Id. (quoting
Robinson, 5 N.E.3d at 365).
I. Was Atkins in Custody?
[17] Both issues raised by Atkins require us to determine whether Atkins was in
custody at the time of the search of his backpack and his statements to the
officers. As discussed in greater depth in Sections II and III, if Atkins was in
custody, he was entitled to certain advisements under Pirtle and Miranda.
Atkins argues that he was in police custody, but the State argues that Atkins
was the subject of a Terry stop, and not a custodial detention.
[18] The custody inquiry is a mixed question of fact and law; the circumstances of
the incident are matters of fact, and whether those facts add up to a custodial
situation is a question of law. State v. Ruiz, 123 N.E.3d 675, 679 (Ind. 2019), Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 9 of 20 petition for cert. docketed. “We defer to the trial court’s factual findings, without
reweighing the evidence; and we consider conflicting evidence most favorably
to the suppression ruling.” Id. “[W]e review de novo the legal question of
whether the facts amounted to custody.” Id.
[19] Under Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868 (1968), an officer may “stop
and briefly detain a person for investigative purposes,” so long as he can “point
to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.” Kelly v. State, 997 N.E.2d
1045, 1051 (Ind. 2013) (internal citations omitted). “A Terry stop, thus, is
permissible without a warrant or probable cause if the officer has reasonable
suspicion to justify the stop.” Id.
The line between a Terry stop and a full-blown custodial arrest is blurred by the tension and uncertainty inherent in such encounters. Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995). As in other areas of the law that do not rest comfortably within bright lines, we apply a “reasonableness” test: would a reasonable person, in the same situation as the defendant, believe she was free to leave? Id. The typical Terry stop is “a relatively brief encounter.” Wilson v. State, 745 N.E.2d 789, 791 (Ind. 2001) (quoting Knowles v. Iowa, 525 U.S. 113, 117, 119 S. Ct. 484, 142 L.Ed.2d 492 (1998)). An arrest, in contrast, is “the taking of a person into custody, that he may be held to answer for a crime.” Ind. Code § 35-33-1-5 (2008) (emphasis added). And we have said before that “an arrest occurs when a police officer interrupts the freedom of the accused and restricts his liberty of
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 10 of 20 movement.” Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996)[ 4] (finding arrest when defendant was handcuffed and placed in patrol car).
Id. at 1051.
[20] In determining whether a defendant was in custody at the time of a search, our
Supreme Court has held that custody occurs when two criteria are met: (1) the
person’s freedom of movement is curtailed to the degree associated with a
formal arrest; and (2) the person undergoes the same inherently coercive
pressures as the type of station house questioning. Ruiz, 123 N.E.3d at 680.
“[F]reedom of movement is curtailed when a reasonable person would feel not
free to terminate the interrogation and leave.” Id.
This freedom-of-movement inquiry requires a court to examine the totality of objective circumstances surrounding the interrogation—such as the location, duration, and character of the questioning; statements made during the questioning; the number of law-enforcement officers present; the extent of police control over the environment; the degree of physical restraint; and how the interview begins and ends.
Id. In Meredith, our Supreme Court described this test slightly differently. The
Court identified a “non-exhaustive list of relevant factors” to consider in
determining whether the defendant was in custody:
4 Overruled on other grounds by Scisney v. State, 701 N.E.2d 847 (Ind. 1998).
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 11 of 20 whether the defendant was read his Miranda rights, handcuffed, restrained in any way, or told that he was a suspect in a crime; how vigorous was the law enforcement interrogation; 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; and the length of the detention.
Meredith, 906 N.E.2d at 874.
[21] In analyzing these factors, Atkins relies mainly upon our Supreme Court’s
decision in Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), while the State relies
upon Meredith, 906 N.E.2d 867. In Sellmer, officers received an anonymous tip
that a car parked in front of a hair salon contained a large amount of drugs.
Officers went to the salon, located the vehicle, and inside the salon, asked the
owner of the vehicle to come outside. After a discussion, the owner, Sellmer,
gave the officers permission to search her vehicle, which led to the discovery of
a large amount of marijuana. Sellmer argued that the search of her vehicle
violated the Fourth and Fifth Amendments to the United States Constitution
and Article 1, Section 11 of the Indiana Constitution. The trial court, however,
denied her motion to suppress.
[22] On appeal, our Supreme Court considered, in part, whether Sellmer was in
custody and entitled to a Pirtle advisement. The Court noted that officers asked
Sellmer’s permission to search three to five times before she consented; officers
asked questions that, if not incriminating, “came extremely close”; officers told
Sellmer that it would be in her “best interest to cooperate” and not make the
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 12 of 20 officers “jump through a bunch of hoops”; officers told Sellmer that, if no
contraband was discovered, she would be allowed “to go on [her] way”;
Sellmer asked a lot of questions about her rights and options and the officer
responded, “It’s in your best interest to cooperate and not make us jump
through a bunch of hoops”; and when Sellmer asked, “Do I have to let you
[search my car]?”, the officer again said, “It would be in your best interest to
cooperate if you have nothing to hide.” Sellmer, 842 N.E.2d at 364-65.
[23] The Court concluded:
[W]e apply a totality of the circumstances test in such situations and, given the extensive efforts that Officer Roberts went to here . . . to persuade Sellmer to consent and to avoid advising her that she was not required to consent even in the face of her direct questions, we conclude that a reasonable person under the same circumstances as those in which Sellmer found herself would believe either that she was under arrest or, at least, that she was not free to resist the entreaties of the police.
Id. at 365.
[24] In Meredith, our Supreme Court reached a different result. During a traffic stop,
the officer noticed that Meredith smelled of alcohol, his eyes were red and
bloodshot, and he was nervous. When a breath test was administered and was
negative for alcohol, the officer asked to search Meredith’s vehicle. Meredith
agreed, which led to the discovery of cocaine. The trial court denied Meredith’s
motion to suppress.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 13 of 20 [25] Our Supreme Court in Meredith determined that “the record reveals nothing
more than a conventional traffic stop.” Meredith, 906 N.E.2d at 874. The
officer stopped Meredith for a traffic infraction; asked for Meredith’s license;
asked to perform a sobriety test based on his observations of Meredith; and
asked for consent to search the vehicle. The Court held: “Absent anything in
the record pointing the other way, ‘[t]reatment of this sort cannot fairly be
characterized as the functional equivalent of [a] formal arrest.’” Id. (citation
omitted). The Court concluded that Meredith was not in custody.
[26] There is no bright line rule to determine whether Atkins was merely subjected
to a Terry stop or whether he was in custody. The State argues that Atkins was
not in custody until he was handcuffed. Atkins argues that, at some point, the
interaction went from a Terry stop to a custodial situation. After considering
the totality of the circumstances and the factors identified by our Supreme
Court in Ruiz and Meredith, we conclude that Atkins was in custody.
[27] Atkins and Williams were confronted in the apartment complex parking lot by
multiple officers, some of whom were in uniform. The officers separated
Atkins and Williams. Atkins almost immediately learned that the officers were
investigating a burglary and that Atkins’ name had been raised. Over the
course of the interaction, the officers repeatedly told Atkins to sit on the curb,
would not let him approach a “witness,” and would not let him use the
restroom. Although Atkins initially allowed the officers to look in his backpack
to check for weapons, officers then repeatedly asked to look at the laptops in the
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 14 of 20 backpack. Atkins was agitated and repeatedly and loudly denied the officers’
requests and asked about his rights.
[28] The officers also suggested Atkins should cooperate and implied adverse
consequences for noncooperation. One officer told Atkins, “We got a job to
do, let us get through it, the quicker you cooperate with us the quicker we get
the hell outta here.” State’s Ex. A. Detective Baker told Atkins, “I get it, but
when we’re asking questions, you gotta, you gotta cooperate, you know what
I’m saying? Because it ain’t like we just gonna disappear and walk off.” Id.
After more than twenty minutes of argument with the officers, Atkins told
Detective Baker that he had just purchased the laptops for $450.00 and allowed
Detective Hunter to look at the laptops. Detective Hunter then discovered that
one of the laptops belonged to Lambert based on the username. At this point,
the interaction between Atkins and the officers was almost thirty minutes long.
Approximately fifteen or twenty minutes later, Atkins was handcuffed and
transported to the police station.
[29] Although Atkins was initially not handcuffed, he was restrained, told that he
was a suspect in a crime, and was subjected to vigorous questioning about the
contents of his backpack. The officers suggested that Atkins should cooperate,
and Detective Hunter testified that it is a “fair statement” that Atkins “was not
free to leave.” Tr. Vol. II p. 18. This situation is much more like Sellmer than
the routine traffic stop in Meredith. Under these circumstances, Atkins’ freedom
of movement was curtailed because a reasonable person would not have felt
free to leave, and Atkins was subjected to inherently coercive pressures as in
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 15 of 20 Sellmer. Accordingly, we conclude Atkins was in custody. See, e.g., Sellmer, 842
N.E.2d at 365; Ruiz, 123 N.E.3d at 682 (holding that the defendant was in
custody after detectives asked him to come to the station, detectives told him
that he could leave, and detectives aggressively questioned the defendant); State
v. Janes, 102 N.E.3d 314 (Ind. Ct. App. 2018) (holding that the defendant was in
custody where, after the defendant received a verbal warning for failure to dim
his lights, the officer asked incriminating questions and obtained permission to
search the vehicle), trans. denied; cf. Brown v. State, 70 N.E.3d 331 (Ind. 2017)
(holding that the defendant, who was detained at a field sobriety checkpoint,
was not “in custody”).
II. Search of the Backpack/Pirtle Advisement
[30] Atkins argues that the search of his backpack violated his rights under Article 1,
Section 11 of the Indiana Constitution because he did not voluntarily consent to
the search and because he was not advised of his Pirtle rights prior to obtaining
consent to the search. 5
[31] The Fourth Amendment to the United States Constitution guarantees “[t]he
right of the people to be secure in their persons, houses, papers, and effects”
from unreasonable searches and seizures. U.S. Const. Amend. IV. The Fourth
Amendment requires police to obtain a search warrant from a neutral, detached
5 Atkins also argues that the search of his backpack violated his rights under the Fourth Amendment. Because we conclude that Atkins’ rights under the Indiana Constitution were violated, we need not address his remaining arguments under the Fourth Amendment.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 16 of 20 magistrate prior to undertaking a search of either a person or private property.
Dycus v. State, 108 N.E.3d 301, 304 (Ind. 2018) (citing Katz v. United States, 389
U.S. 347, 357, 88 S. Ct. 507 (1967)). The requirement for a warrant, however,
is subject to exceptions, including when a person consents to a search. Id.
[32] “Our State Constitution offers citizens parallel protections against unreasonable
searches and seizures.” Dycus, 108 N.E.3d at 304. Article 1, Section 11
provides that “[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search or seizure, shall not be violated
. . . .” “Although the wording of Section 11 is almost identical to that of the
Fourth Amendment, our State Constitution’s search and seizure clause is given
an independent interpretation and application.” Id. Indiana’s Constitution
sometimes offers broader protections than those offered by the United States
Constitution. Id. “Amongst those broader protections offered by our State
Constitution is the requirement that, prior to obtaining consent to a search,
police must explicitly advise a person in custody of [his] right to consult with
counsel.” Id. Specifically, our Supreme Court held in Pirtle that “a person in
police custody is entitled to the presence and advice of counsel prior to
consenting to a search, and that the right, if waived, must be explicitly waived.”
Id. at 305. This requirement “is unique to Indiana and has no federal
counterpart.” Id. at 304.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 17 of 20 [33] We have concluded that Atkins was in custody during the search of the laptop
in his backpack. 6 See supra Section I. Accordingly, we conclude that Atkins
was in custody and was entitled to a Pirtle advisement prior to the search of the
laptop in his backpack. Atkins argues that he was not given a Pirtle advisement
prior to the search of the laptop in his backpack, but the State does not address
the argument. It is undisputed that Atkins was not given a Pirtle advisement
before the search of the laptop in his backpack when he was in custody.
[34] Earlier in the interaction, when Detective Hunter asked if Atkins had any
weapons in his backpack, Detective Hunter said, “You can say no, request a
warrant, or ask for a lawyer if you want.” State’s Ex. A. Atkins, however, was
not in custody at that time. Even if this statement applies to the later search of
Atkins’ backpack, Detective Hunter’s statement fails to explicitly inform Atkins
that he was entitled to the presence and advice of counsel prior to consenting to
the search, and the statement fails to comply with the Pirtle advisement
requirement for a person in custody. See Dycus, 108 N.E.3d at 304 (“[P]rior to
obtaining consent to a search, police must explicitly advise a person in custody
of her right to consult with counsel.”) (emphasis added).
[35] Because Atkins did not receive a Pirtle warning prior to the search of the laptop
in his backpack and was entitled to one and did not explicitly waive his right to
6 During the oral argument, Atkins would not concede that the officer had reasonable suspicion to stop Atkins. There is, however, no argument in Appellant’s Brief that the search of the backpack for weapons was improper and no argument that the search of the backpack for weapons required a Pirtle advisement.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 18 of 20 counsel prior to the search, the trial court erred by granting the State’s motion
to correct error and reversing the earlier grant of Atkins’ motion to suppress the
evidence obtained as a result of the search. See, e.g., Sellmer, 842 N.E.2d at 365
(reversing the denial of Sellmer’s motion to suppress where Sellmer was in
custody and was entitled to a Pirtle advisement, which she was not provided).
III. Suppression of Statements/Miranda Advisement
[36] Atkins also argues that the trial court erred by denying his motion to suppress
statements that he made to the officers pursuant to the Fifth Amendment of the
United States Constitution. 7 The Fifth Amendment, incorporated to the states
via the Fourteenth Amendment, guarantees that “no person . . . shall be
compelled in any criminal case to be a witness against himself.” U.S. Const.
amend. V; Kelly, 997 N.E.2d at 1053. The United States Supreme Court held in
Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602 (1966), that, before a law
enforcement officer may subject someone to custodial interrogation, the officer
must advise him “that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has a right to the
presence of an attorney, either retained or appointed.” Kelly, 997 N.E.2d at
1053. “If the officer does not so advise the subject, the prosecutor cannot use
any statements the subject does make against him in court.” Id. “The trigger to
7 Atkins also argues that his statements were inadmissible under Article 1, Section 14 of the Indiana Constitution. Because we conclude that Atkins’ rights under the Fifth Amendment were violated, we need not address his remaining arguments under the Indiana Constitution.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 19 of 20 require the announcement of Miranda rights is custodial interrogation.” State v.
Brown, 70 N.E.3d 331, 335 (Ind. 2017)
[37] We have determined that Atkins was in custody. See supra Section I. As such,
Atkins was entitled to an advisement of his Miranda rights prior to the police
questioning him, which he did not receive. The trial court erred by granting the
State’s motion to correct error and reversing the earlier grant of Atkins’ motion
to suppress his statements to the police.
Conclusion [38] The trial court erred when it found that Atkins was not in custody and was not
entitled to Pirtle and Miranda advisements. Accordingly, the trial court erred by
granting the State’s motion to correct error and by reversing the earlier grant of
Atkins’ motion to suppress. We reverse and remand.
[39] Reversed and remanded.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020 Page 20 of 20