Jeremy D. Cox v. State of Indiana

FILED Dec 21 2020, 9:44 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Glen E. Koch II Curtis T. Hill, Jr. Boren, Oliver & Coffey, LLP Attorney General of Indiana Martinsville, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jeremy D. Cox, December 21, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-899 v. Appeal from the Brown Circuit Court State of Indiana, The Hon. Mary Wertz, Judge

Appellee-Plaintiff. Trial Court Cause No. 07C01-1902-CM-46

Bradford, Chief Judge. Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 1 of 11

Case Summary [1] In December of 2018, Indiana State Police Trooper Matthew Hatchett stopped

a truck in which Jeremy Cox was a passenger because it did not have a

functional license-plate light and had a broken frame. After telling Cox that he

was free to leave and could refuse his consent, Trooper Hatchett asked for

Cox’s consent to search his person, and Cox gave it. Trooper Hatchett’s search

uncovered a socket containing marijuana. The State charged Cox with Class C

misdemeanor illegal possession of paraphernalia, and, after the trial court

denied Cox’s motion to suppress evidence uncovered in the search, a jury found

him guilty as charged. Cox contends that the trial court erred in denying his

motion to suppress because the search of his person allegedly violated

provisions of the United States and Indiana Constitutions. Because we

disagree, we affirm.

Facts and Procedural History [2] After sundown on December 18, 2018, Trooper Hatchett was parked in a

parking lot when he observed a black Nissan pickup truck drive by on Salt

Creek Road in Brown County. Trooper Hatchett noticed that the truck had no

functioning license-plate light and that its frame appeared to be broken and

therefore unsafe, both of which constitute traffic infractions. Trooper Hatchett

stopped the truck and identified its occupants as driver Joseph Lawson and

passengers Cherie Lawson and Cox. Trooper Hatchett verified that the truck’s

frame was broken and informed the occupants that it would have to be towed

for safety reasons. Trooper Hatchett had the occupants exit the truck and told

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 2 of 11

Cherie and Cox that they were free to go and Joseph that he was free to go once

the paperwork for the infractions was complete. All three elected to stay and

wait for a ride. [3] Because the trio elected to stay and would be in the vicinity until their ride

arrived, Trooper Hatchett asked for their consent to search their persons for

officer-safety reasons. Cherie refused to consent to a search of her person and

was not searched. Cox, who was not restrained in any fashion and was told

that he did not have to consent to the warrantless search, gave his consent.

Brown County Sheriff’s Deputy Colton Magner arrived at the scene after

Trooper Hatchett had obtained consent from Cox to search his person but did

not believe that Cox had already been searched. Trooper Hatchett found on

Cox’s person a small socket containing marijuana, which Trooper Hatchett

recognized from training and experience. At some point after Deputy Magner

arrived, Sergeant Scott Bowling of the Brown County Sheriff’s Department and

Nashville Police Officer Brenten Barrow arrived at the scene to assist. Cox was

given a summons to appear, and he, Cherie, and Joseph left the scene when

somebody came to pick them up. [4] On February 12, 2019, the State charged Cox with Class C misdemeanor illegal

possession of paraphernalia. On September 27, 2019, Cox moved to suppress

evidence of the paraphernalia on the grounds that it was discovered in violation

of the state and federal constitutions. On January 2, 2020, after a hearing, the

trial court denied Cox’s motion to suppress. On January 22, 2020, a jury found

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 3 of 11

Cox guilty as charged, and, on March 10, 2020, the trial court sentenced Cox to

eight days of incarceration.

Discussion and Decision [5] A trial court has broad discretion in ruling on the admissibility of evidence.

Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003). This Court will

reverse a trial court’s ruling on the admissibility of evidence only when it

constitutes an abuse of discretion. Id. An abuse of discretion involves a

decision that is clearly against the logic and effect of the facts and circumstances

before the court. Id. Moreover,

when a trial court has admitted evidence alleged to have been discovered as the result of an illegal search or seizure, we generally will assume the trial court accepted the evidence presented by the State and will not reweigh that evidence, but we owe no deference as to whether that evidence established the constitutionality of a search or seizure. Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct. App. 2013), trans. denied. Cox

contends that the evidence seized following the traffic stop was obtained in

violation of the Fourth Amendment to the United States Constitution and

Article 1, Sections 11 and 13, of the Indiana Constitution and so should have

been suppressed.

I. Fourth Amendment [6] The Fourth Amendment to the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 4 of 11

probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. A warrantless search or seizure is per se unreasonable,

and the State bears the burden to show that one of the “well-delineated

exceptions” to the warrant requirement applies. M.O. v. State, 63 N.E.3d 329,

331 (Ind. 2016) (citations omitted). A voluntary and knowing consent to search

is one well-established exception to the warrant requirement. Meyers v. State,

790 N.E.2d 169, 172 (Ind. Ct. App. 2003). [7] Cox’s argument is more-or-less premised entirely on his claim that he was first

detained after the purpose of the traffic stop was fulfilled and then placed in

custody, which allegedly rendered his consent invalid. A person is in custody if

he is under arrest or deprived of his freedom of movement to a degree akin to

arrest. Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003). Only when an officer, by

means of physical force or show of authority, has in some way restrained the

person’s liberty can he be found to be in custody. Id. at 833–34 (citing Florida v.

Bostick, 501 U.S. 429, 433–34 (1991)). We conclude that there is sufficient

evidence to support a finding that Cox was never in custody or detained

unnecessarily. Neither Trooper Hatchett nor any other officer handcuffed or

otherwise physically restrained Cox, and there is no evidence that any officer

used a show of authority to restrain Cox. In fact, the record indicates that

Trooper Hatchett explicitly told Cox that he was free to go and then that he

could refuse to consent to the search. We conclude that a reasonable person

would have felt free to disregard the officers’ inquiries and go about his

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 5 of 11

business. We think it worth noting that Cherie seems to have done just that,

refusing Trooper Hatchett’s request for consent to search her person with no

negative consequences to herself. [8] Cox also points to his testimony that Trooper Hatchett retained his

identification throughout the encounter and confiscated a knife from him.

Trooper Hatchett, however, testified that, while he could not specifically

remember giving Cox back his identification, he thought “that I would have

brought them back, gave them to them, because I already [had] all of his

information[,]” implying that he returned Cox’s identification once he verified

his identity and ran his license. Tr. Vol. II p. 23. Moreover, the only evidence

regarding a knife being at the scene at all is Cox’s self-serving testimony to that

effect, and, in fact, Trooper Hatchett was not even asked at the suppression

hearing if he had obtained a knife from Cox. Cox also contends that Trooper

Hatchett told him that he could not leave until the “paperwork” was done, but

Trooper Hatchett specifically testified that he only told Joseph that because

only Joseph had committed an infraction. Finally, while Cox suggests that he

felt coerced into consenting to the search by the presence of four police officers,

the record indicates that Trooper Hatchett was the only officer present when

consent was given. To the extent that Cox’s testimony conflicts with other

evidence in the record, the trial court was under no obligation to credit it, and

apparently did not. As mentioned, we generally assume on appeal that the trial

court resolved all evidentiary conflicts in favor of the State. In the end, Cox’s

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 6 of 11

arguments in this regard are nothing more than invitations to reweigh the

evidence, which we will not do. See Johnson, 992 N.E.2d at 957. [9] That said, whether Cox was in custody is not the only relevant consideration in

determining if his consent was voluntary. Polk v. State, 822 N.E.2d 239, 248

(Ind. Ct. App. 2005). A consent to search is valid except where it is procured

by fraud, duress, fear, or intimidation, or where it is merely a submission to the

supremacy of the law. The voluntariness of the consent is a question of fact to

be determined from the totality of the circumstances. Id. The totality of the

circumstances includes, but is not limited to, such factors as the defendant’s

education and intelligence, whether the defendant was informed of his Miranda

rights, whether the defendant has had previous encounters with law

enforcement, whether the officer claimed authority to search without consent,

whether the defendant was told he had the right to refuse consent, whether the

officer was engaged in any illegal action prior to the request, and whether the

officer was deceptive as to his true identity or the purpose of the search. Meyers,

790 N.E.2d at 172. [10] Although there is nothing in the record touching on Cox’s education or possible

prior contacts with law enforcement, all other relevant factors weigh in favor of

his consent being voluntary. Trooper Hatchett never told Cox that he was

being investigated for a crime and neither interrogated Cox prior to asking him

for consent to search his person nor suggested that he would suffer adverse

consequences for declining to grant consent. Trooper Hatchett also specifically

told Cox that he did not have to consent to the search. In addition, Trooper

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 7 of 11

Hatchett engaged in no illegality, was never deceptive about his true identity or

the purpose of his search, and only requested consent to search after the

occupants chose to remain on the scene, who, at the time, outnumbered him

three to one. Although Cox was not advised of his Miranda rights, no such

advisement was required because, as discussed above, Cox was never in

custody. See Meyers, 790 N.E.2d at 172; Ammons v. State, 770 N.E.2d 927, 933–

34 (Ind. Ct. App. 2002). Moreover, Trooper Hatchett never claimed authority

to search without consent, and his interactions with Cox and the other

occupants occurred in a public setting, not in a police-dominated, institutional

atmosphere like a police station. Cox himself confirmed that he was never

handcuffed, placed under arrest, or told that he was being investigated for a

crime. [11] In summary, the record indicates that Trooper Hatchett simply approached Cox

and asked if he could search him, which does not even implicate the Fourth

Amendment. See Bentley v. State, 846 N.E.2d 300, 305–07 (Ind. Ct. App. 2006);

Cochran v. State, 843 N.E.2d 980, 983–85 (Ind. Ct. App. 2006), reh’g denied; see

also Bostick, 501 U.S. at 434–35 (1991). We conclude that the totality of

circumstances indicates that Cox’s consent was knowing and voluntary. See,

e.g., Navarro v. State, 855 N.E.2d 671, 675–80 (Ind. Ct. App. 2006) (finding

consent voluntary even though officer retained the defendant’s driver’s license

during the investigative stop and never said he had a right to refuse consent or

advised him of his Miranda rights because the officer was not deceptive, never

implied the authority to search without consent, the defendant was not in

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 8 of 11

custody, and he assisted by opening the trunk for the officer); Meyers, 790

N.E.2d at 172 (finding valid consent where the defendant was not advised of his

rights or told he could refuse consent, was not in custody, was a high school

graduate and had prior encounters with law enforcement, and the officer did

not threaten or deceive him); Ammons, 770 N.E.2d at 934 (finding valid consent

to search where two officers stopped the defendant, he was not read his Miranda

rights, and the officers did not engage in any illegal activity or deception).

Consequently, the trial court did not abuse its discretion in denying Cox’s

motion to suppress on the ground that the search violated the Fourth

Amendment.

II. Article 1, Sections 11 and 13 [12] Cox also challenges admission of the evidence pursuant to Article 1, Sections

11 and 13, of the Indiana Constitution. 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; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized. Article 1, Section 13, provides, in part, that “[i]n all criminal prosecutions, the

accused shall have the right […] to be heard by himself and counsel[.]”

[13] 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. Myers v. State, 839 N.E.2d 1146, 1153 (Ind. 2005). In fact, Indiana’s Constitution sometimes offers broader protections than those offered by the U.S. Constitution. Conley v. State, 972

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 9 of 11

N.E.2d 864, 879 (Ind. 2012). 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 her right to consult with counsel. It is unique to Indiana and has no federal counterpart. See United States v. LaGrone, 43 F.3d 332, 337 (7th Cir. 1994) (“A person in custody has no federal constitutional right to consult with an attorney before consenting to a search of his property. However, the Indiana [C]onstitution does afford such a right.”). Dycus v. State, 108 N.E.3d 301, 304 (Ind. 2018). This rule was established by

the Indiana Supreme Court in the case of Pirtle v. State, in which the Court held

“that 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.” 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975). [14] The threshold question for purposes of Pirtle is whether Cox was in custody

when Trooper Hatchett obtained his consent to search his person. If not, Pirtle

does not apply. We have already concluded that Cox was not in custody at any

point during the encounter in question. To reiterate, the record supports

findings that none of the officers restrained Cox in any way and that Trooper

Hatchett explicitly told him that he was free to go, told him he could refuse to

consent to the search, and did not retain his license throughout the encounter.

Cox was not interrogated before consent was sought and was never told that he

was suspected of committing a crime. Moreover, there is no indication of any

other show of authority that would have made a reasonable person feel that he

was not free to leave; Trooper Hatchett was the only officer on the scene when

Cox’s consent was obtained, and the entire encounter took place beside a public

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 10 of 11

road, as opposed to a police station. Indeed, even after contraband was found

on his person, Cox was released with a summons to appear. Because Cox was

never in custody, the Pirtle requirement to advise him he had the right to consult

with an attorney before consenting to a search of his person was not triggered.

The trial court did not err in denying Cox’s motion to suppress on the alleged

ground that the search of his person violated Article 1, Sections 11 and 13, of

the Indiana Constitution. [15] We affirm the judgment of the trial court.

Kirsch, J., and May, J., concur.

Court of Appeals of Indiana | Opinion 20A-CR-899 | December 21, 2020 Page 11 of 11