Christian Hicks v. State of Indiana (mem. dec.)

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

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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).

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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,

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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

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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.

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