      MEMORANDUM DECISION
                                                                        Feb 17 2016, 8:17 am

      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      C. Anthony Ashford                                        Gregory F. Zoeller
      Ashford Law Group, P.C.                                   Attorney General of Indiana
      Chesterton, Indiana
                                                                Angela N. Sanchez
                                                                Deputy Attorney General
      Benjamen W. Murphy
                                                                Indianapolis, Indiana
      Law Office of Ben Murphy
      Griffith, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Carlos Barrientos,                                       February 17, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               64A03-1508-CR-1128
              v.                                               Appeal from the Porter Superior
                                                               Court.
                                                               The Honorable William E. Alexa,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 64D02-1407-F2-5995




      Barteau, Senior Judge


                                       Statement of the Case
[1]   A police officer stopped Carlos Barrientos while driving and, as a result of their

      encounter, found a controlled substance in Barrientos’ car. In this interlocutory


      Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 1 of 16
      appeal, Barrientos requests reversal of the trial court’s denial of his motion to

      suppress evidence. We affirm.


                                                    Issues
[2]   Barrientos raises four issues, which we consolidate and restate as:

              I.       Whether the trial court erred in rejecting Barrientos’ claim
                       that a police officer violated the Fourth Amendment to the
                       United States Constitution by asking Barrientos to sit in a
                       police car during a traffic stop and by searching Barrientos’
                       vehicle.
              II.      Whether the trial court erred in rejecting Barrientos’ claim
                       that a police officer violated article I, section 11 of the
                       Indiana Constitution by asking Barrientos to sit in a police
                       car during a traffic stop and by searching Barrientos’
                       vehicle.

                               Facts and Procedural History
[3]   On July 8, 2014, Detective Alfred Villarreal of the Lake County Sheriff’s

      Department was parked along Interstate 90 in Porter County. He was on patrol

      in an unmarked car. Detective Villarreal was approached by a man who

      identified himself as an agent of the United States Drug Enforcement Agency.

      The agent explained he was investigating a vehicle that might be transporting

      controlled substances in a hidden compartment. The agent told Detective

      Villarreal the make, model, and color of the vehicle and further stated it had a

      yellow temporary license plate issued by the State of Illinois.


[4]   Later, as Detective Villarreal was driving on Interstate 90, he saw a vehicle that

      matched the description the agent had given him. He followed the vehicle and

      Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 2 of 16
      determined it was going eighty miles per hour, well over the speed limit of

      seventy miles per hour. The detective also saw the vehicle cross the highway’s

      fog line. Detective Villarreal stopped the vehicle.


[5]   Barrientos was driving the vehicle, and he was accompanied by his mother and

      his nephew. Detective Villarreal approached the vehicle on the passenger side.

      He told Barrientos that he had stopped him for speeding and asked for a driver’s

      license and vehicle registration. Barrientos produced those documents.


[6]   Next, Detective Villarreal asked Barrientos to get out of the vehicle and sit in

      his patrol car. Barrientos was wearing a t-shirt and shorts, and Detective

      Villarreal asked Barrientos to lift up his t-shirt to show that he did not have a

      weapon tucked into his shorts before allowing Barrientos to enter the patrol car.

      Barrientos complied.


[7]   After they both sat down in the car, Detective Villarreal checked Barrientos’

      license on his computer to determine whether the license was valid and whether

      Barrientos had any arrest warrants. The detective also examined the vehicle

      registration. Detective Villarreal asked Barrientos where he was going, and

      Barrientos said he was going to South Bend to attend a child’s birthday party.

      As they talked, Detective Villarreal noted that Barrientos was “fidgety” and his

      answers seemed to be “hesitant” or “questionable.” Tr. p. 16. However, they

      also laughed together because the detective had mistakenly believed Barrientos’

      nephew was an adult due to being tall, and Barrientos explained his nephew




      Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 3 of 16
       was only fifteen years old. Detective Villarreal did not find any irregularities in

       Barrientos’ documents.


[8]    Detective Villarreal walked back to Barrientos’ vehicle to ask the passengers

       where they were going. Barrientos’ mother said they were “just taking a ride

       and going to see a family member in general.” Id. at 17.


[9]    Next, Detective Villarreal returned to his car, where Barrientos was waiting.

       The detective sat down, returned Barrientos’ driver’s license and vehicle

       registration, and gave him a verbal warning for speeding. Detective Villarreal

       then told Barrientos he was “all set.” Id. at 19. Barrientos appeared to be

       relieved and told the officer he would watch his speed. Next, the following

       exchange occurred, as described by Detective Villarreal:

               I asked him if he had anything illegal in the vehicle. I told him
               that we get a lot of weapons and drugs that come through here,
               and I asked him if he had anything illegal in his vehicle and he
               said no. I asked him if he had any weapons in the car; he said
               no. I asked him if he had any drugs in the car; he said no. And I
               asked him if he had any large amounts of U.S. currency; and he
               said no. I then asked him right after that if I could do a – my
               words were ‘a quick search of his car.’ And he said – I believe he
               said, ‘Yes, no problem’ or ‘no problem.’ And I reiterated, ‘So I
               could search your car? I can search it?’ And he said yes or yeah,
               one of the two.
       Id. at 21.


[10]   After Barrientos consented to the search, Detective Villarreal had Barrientos’

       mother and nephew go sit in the patrol car with Barrientos. The detective and

       two other officers who arrived at the scene searched Barrientos’ vehicle and

       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 4 of 16
       found a hidden compartment in the dashboard. The officers opened the

       compartment and found a package of what appeared to be a controlled

       substance. Subsequent testing revealed that the officers had found 482.81

       grams of heroin.


[11]   Meanwhile, Barrientos and his mother talked as they sat in Detective

       Villarreal’s car, and a recorder captured their conversation. Barrientos admitted

       to his mother that he had a “drug” in the car. State’s Ex. 2.


[12]   The State charged Barrientos with dealing in a narcotic drug, a Level 2 felony.

       Ind. Code § 35-48-4-1 (2014). Barrientos filed a motion to suppress. The trial

       court denied Barrientos’ motion after an evidentiary hearing. Barrientos asked

       the trial court to certify its ruling for interlocutory appeal, and the trial court

       granted the request. Next, Barrientos requested and received permission from

       this Court to pursue an interlocutory appeal.


                                    Discussion and Decision
                                        I. Standard of Review
[13]   We review the denial of a motion to suppress similar to other sufficiency

       matters. Dora v. State, 957 N.E.2d 1049, 1052 (Ind. Ct. App. 2011), trans.

       denied. We do not reweigh the evidence but instead consider conflicting

       evidence in the light most favorable to the trial court’s ruling. Id. We also

       consider any uncontested evidence in favor of the defendant. Id.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 5 of 16
[14]   Barrientos concedes Detective Villarreal acted lawfully by stopping him because

       he had been speeding. Barrientos instead contends that being placed in the

       detective’s car and having his vehicle searched violated his federal and state

       constitutional protections against unreasonable search and seizure. We address

       the constitutional claims in turn.


                                       II. Fourth Amendment
[15]   The Fourth Amendment to the United States Constitution provides, in relevant

       part: “The right of the people to be secure in their persons, houses, papers and

       effects, against unreasonable searches and seizures, shall not be violated.” The

       Fourth Amendment applies to the states through the Fourteenth Amendment.

       Thayer v. State, 904 N.E.2d 706, 709 (Ind. Ct. App. 2009).


[16]   The protections of the Fourth Amendment extend to brief investigatory stops of

       persons or vehicles that fall short of traditional arrest. Id. Stopping an

       automobile and detaining its occupants constitutes a seizure within the meaning

       of the Fourth Amendment, even though the purpose of the stop is limited and

       the resulting detention may be brief. Id. If the detention exceeds the

       investigative scope of the stop, then seized items may be excluded from

       evidence. Id.


[17]   Barrientos argues that Detective Villarreal exceeded the scope of the stop by

       asking him to sit in the patrol car. He cites Wilson v. State, 745 N.E.2d 789, 793

       (Ind. 2001), for the proposition than an officer may not place a motorist in a



       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 6 of 16
       patrol vehicle during a traffic stop unless it is justified by particular

       circumstances in the case.


[18]   Here, Detective Villarreal noted that the road where the stop occurred,

       Interstate 90, was dangerous because it was congested “on that particular day.”

       Tr. p. 7. In addition, the section of the highway where the stop occurred had

       only two lanes. The patrol car was equipped with a dash camera, and its

       recording supports the detective’s assertion of dangerousness, showing heavy

       traffic passing Barrientos’ parked vehicle. Furthermore, Barrientos’ vehicle had

       a temporary license plate issued by the State of Illinois. Detective Villarreal

       explained he frequently has difficulty obtaining accurate information from his

       computer about Illinois temporary plates and it is helpful to have the motorist

       in his car to assist him.


[19]   Barrientos notes Detective Villarreal repeatedly testified during the suppression

       hearing that he always asks motorists to get into his patrol car during traffic

       stops because doing so allows him to access his car’s computer more easily,

       limits his need to walk back and forth between his car and the motorist’s

       vehicle, makes it easier for him to converse with the motorist, and allows him a

       better opportunity to spot potential criminal activity.


[20]   A routine practice of requiring motorists to enter a patrol car during traffic stops

       does not appear to comply with our Supreme Court’s holding in Wilson.

       Nevertheless, even where an officer has a general practice of requiring a

       motorist to get out of his or her car and sit in a patrol car during a traffic stop,


       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 7 of 16
       there may still be facts in a particular case that justify the officer’s request.

       Under the specific circumstances in this case, Detective Villarreal was justified

       in asking Barrientos to sit in the patrol car to minimize the need for the

       detective to walk back and forth along the road during dangerously heavy traffic

       and to more easily address any issues arising from Barrientos’ temporary license

       plate.


[21]   Barrientos cites several cases in support of his claim, but they are

       distinguishable. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d

       229 (1983), did not involve a traffic stop but rather a citizen’s encounter with

       the police in an airport terminal. In Lucas v. State, 15 N.E.3d 96, 104 (Ind. Ct.

       App. 2014), trans. denied, a panel of this Court concluded a police officer

       violated the Fourth Amendment by having the motorist get into his patrol car

       because the record was devoid of any particularized circumstances to justify the

       officer’s request. By contrast, in the current case Detective Villarreal noted that

       the interstate was dangerously busy on the day in question. Finally, in Crocker

       v. State, 989 N.E.2d 812, 819-20 (Ind. Ct. App. 2013), trans. denied, this Court

       addressed whether an officer’s request for a motorist to sit in the patrol car

       violated the Fifth Amendment rather than the Fourth Amendment.


[22]   Next, Barrientos argues that even if the detective acted lawfully in asking him to

       sit in the patrol car, Barrientos’ consent to have his vehicle searched was invalid

       because the detective requested permission to search while they sat in the patrol

       car. Barrientos thus argues that he was coerced into consenting.



       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 8 of 16
[23]   Generally, a search warrant is a prerequisite to a constitutionally proper search

       and seizure. Perry v. State, 638 N.E.2d 1236, 1240 (Ind. 1994). A valid consent

       to search obviates the Fourth Amendment’s warrant requirement. Id. The

       State bears the burden of demonstrating consent was freely and voluntarily

       given. Navarro v. State, 855 N.E.2d 671, 675 (Ind. 2006). A consent to search is

       valid except where it is procured by fraud, duress, fear, intimidation, or where it

       is merely a submission to the supremacy of the law. Id.


[24]   Voluntariness of a consent is a question of fact to be determined from the

       totality of the circumstances. Id. Some of the circumstances for consideration

       may include: (1) whether the defendant was advised of his or her Miranda

       rights prior to the request to search; (2) the defendant’s degree of education and

       intelligence; (3) whether the defendant was advised of his or her right not to

       consent; (4) whether the defendant has previous encounters with law

       enforcement; (5) whether the officer made any express or implied claims of

       authority to search without consent; (6) whether the officer was engaged in any

       illegal action prior to the request; (7) whether the defendant was cooperative

       previously; and (8) whether the officer was deceptive as to his or her true

       identity or the purpose of the search. Id.


[25]   In this case, Detective Villarreal neither Mirandized Barrientos nor told him he

       was free to refuse to consent. In addition, the record is silent as to Barrientos’

       level of education and whether he has encountered law enforcement in the past.

       These factors must be weighed against the many other factors that favor a

       finding of voluntariness. First, Detective Villarreal returned Barrientos’ driver’s

       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 9 of 16
license and vehicle registration before asking for permission to search, so the

detective was not holding onto the documents as a form of coercion. Second,

although Barrientos was in the patrol car during the discussion, he was not

handcuffed or otherwise restrained. To the contrary, Detective Villarreal told

Barrientos that he was “all set,” thus ending the stop, before requesting consent

to search. Tr. p. 19. Third, Detective Villarreal was not engaged in illegal or

deceptive activity when he requested permission to search, and he did not tell

Barrientos that Barrientos was suspected of a crime. Fourth, Detective

Villarreal did not claim any authority to search the car even if Barrientos

refused to consent. Cf. Campos v. State, 885 N.E.2d 590, 600 (Ind. 2008)

(motorist’s consent to search his car was invalid because the officer had told the

motorist that the search was “necessary,” thereby indicating that there was no
                     1
right to refuse). Fifth, Barrientos had been cooperative throughout the traffic

stop, immediately and unhesitatingly consented to the search, and repeated

several times that he consented to the search. Sixth, Detective Villarreal

conversed with Barrientos in a normal tone of voice and no other officers

arrived on the scene until after Barrientos had consented, so the atmosphere

was not unduly intimidating. Cf. Thurman v. State, 602 N.E.2d 548, 552 (Ind.

Ct. App. 1992) (defendant’s consent to search his car was the product of

coercion where the defendant gave his consent while being forced to keep his




1
  It appears that Detective Villarreal was also involved in the Campos case. That case involved a traffic stop in
Northwest Indiana, and its facts closely resemble this case except for the officer’s crucial statement in Campos
that the search was “necessary.” Detective Villarreal did not make a similar statement in the current case.

Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016           Page 10 of 16
       hands on his car and was surrounded by five police officers), trans. denied.

       Seventh, the traffic stop was relatively brief in duration, as less than ten minutes

       elapsed between Officer Villarreal stopping Barrientos’ vehicle and Barrientos

       consenting to a search. Defendant’s Ex. 1. Based on the totality of the

       circumstances, we conclude that Barrientos’ consent to search his vehicle was

       freely and voluntarily given, and the trial court did not abuse its discretion in

       denying Barrientos’ motion to suppress on Fourth Amendment grounds.


                                      III. Article I, section 11
[26]   Article I, section 11 of the Indiana Constitution provides, in relevant part: “The

       right of the people to be secure in their persons, houses, papers, and effects,

       against unreasonable search or seizure, shall not be violated.” The text of

       article I, section 11 is nearly identical to that of the Fourth Amendment, but

       Indiana’s courts interpret and apply section 11 independently from Fourth

       Amendment jurisprudence. State v. Washington, 898 N.E.2d 1200, 1205-06

       (Ind. 2008).


[27]   The purpose of section 11 is to protect those areas of life that Hoosiers consider

       private from unreasonable police activity. Id. at 1206. Under the Indiana

       Constitution, the legality of a governmental search or seizure turns on an

       evaluation of the reasonableness of the police conduct under the totality of the

       circumstances. Richard v. State, 7 N.E.3d 347, 350 (Ind. Ct. App. 2014), trans.

       denied. Among other circumstances, we consider: (1) the degree of concern,

       suspicion or knowledge that a violation has occurred; (2) the degree of intrusion


       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 11 of 16
       the method of the search or seizure imposes on the citizen’s ordinary activities;

       and (3) the extent of law enforcement needs. Austin v. State, 997 N.E.2d 1027,

       1034 (Ind. 2013). The State has the burden of proving that a search or seizure

       was reasonable under the totality of the circumstances. Croom v. State, 996

       N.E.2d 436, 442 (Ind. Ct. App. 2013), trans. denied.


[28]   Barrientos argues that Detective Villarreal acted unreasonably by requiring him

       to sit in the patrol car during the stop. The detective knew that violations had

       occurred because he had watched Barrientos speed and drive over the fog line.

       As a result, Detective Villarreal was justified in investigating Barrientos’

       documents and asking where Barrientos was going.


[29]   Turning to the degree of intrusion into Barrientos’ privacy, Barrientos was

       asked to step out of his car and sit in the patrol car. Furthermore, he was asked

       to lift his shirt while standing on the side of the road to show he did not have a

       gun. It appears that Detective Villarreal could have conducted the traffic stop

       just as effectively if Barrientos had remained in his own vehicle.


[30]   On the other hand, Barrientos was not handcuffed. Further, the record

       demonstrates Detective Villarreal’s interaction with Barrientos did not differ

       from what a reasonable person might expect during a routine traffic stop –

       reviewing the motorist’s documents via computer, asking general questions

       about the motorist’s destination, and issuing a verbal warning. The detective’s

       tone of voice was level throughout the stop. In addition, the traffic stop was

       effectively over when Detective Villarreal asked for permission to search the


       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 12 of 16
       vehicle. Further, it appears Barrientos’ sitting in the patrol car did not

       unreasonably extend the duration of the stop, because only ten minutes passed

       between when the stop began and when Barrientos agreed to the search.


[31]   As for the extent of law enforcement needs, there were specific circumstances

       that led Detective Villarreal to have Barrientos sit in his patrol car. On the day

       and time in question, the highway was very busy, and Detective Villarreal

       prefers to minimize walking back and forth between cars as a safety measure.

       Also, Barrientos’ vehicle had an Illinois temporary license plate, and the

       detective wanted Barrientos to be present as he searched for the plate on his

       computer in case any problems arose. Finally, as our Supreme Court has

       recognized, interstate drug trafficking is a significant issue facing law

       enforcement. “Given that [drug traffickers’] stock-in-trade is inherently fungible

       and highly mobile, but their centers of organization are scattered and secretive,

       law enforcement’s best chance of uncovering the latter is to interdict the former

       as it moves about our nation’s highways.” Austin, 997 N.E.2d at 1036.

       Balancing the three factors, we conclude Detective Villarreal’s decision to have

       Barrientos sit in the patrol car during the traffic stop was not unreasonable

       under the totality of the circumstances.


[32]   Finally, Barrientos argues his consent to search his vehicle was invalid under

       article I, section 11 of the Indiana Constitution because he was in custody but

       was not advised that he had the right to refuse Detective Villarreal’s request.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 13 of 16
[33]   In Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634, 640 (1975), our Supreme Court

       determined that when a suspect is in custody, article I, section 11 of the Indiana

       Constitution requires that the suspect must be advised of, and explicitly waive,

       the right to counsel before giving a valid consent to a search. We determine

       whether a person is in custody for purposes of Pirtle by considering all

       circumstances surrounding the encounter and asking whether a reasonable

       person under the same circumstances would believe he or she was under arrest

       or not free to resist the entreaties of the police. Meredith v. State, 906 N.E.2d

       867, 873 (Ind. 2009). Relevant circumstances include whether the defendant

       had been read his or her Miranda rights, was handcuffed or otherwise

       restrained in any way, was told he or she was a suspect in a crime, was

       subjected to vigorous interrogation, was told to cooperate, was told expressly or

       impliedly there would be adverse consequences for noncooperation, or was told

       he or she was not free to go. Id. at 874. The length of the detention is also a

       factor. Id. A person stopped by the police during a traffic stop is “seized” and

       momentarily not free to go but is ordinarily not considered to be in custody. Id.

       at 873.


[34]   Barrientos was restrained in a sense by being asked to sit in the patrol car during

       the stop, but he was not handcuffed or otherwise restricted. His discussion with

       Detective Villarreal was typical of a conventional traffic stop. Detective

       Villarreal spoke in a level voice throughout his conversation with Barrientos.

       At one point, the two men laughed because Detective Villarreal initially

       thought Barrientos’ nephew was an adult rather than a fifteen-year-old. The


       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 14 of 16
       detective never told Barrientos he was under investigation, did not urge him to

       cooperate, and never threatened him with adverse consequences for

       noncooperation. To the contrary, Detective Villarreal ended the traffic stop by

       giving Barrientos a verbal warning and telling him, “You’re all set,” before

       requesting permission to search the vehicle. Tr. p. 19. Barrientos immediately

       consented to the detective’s request, agreeing several times to the search.

       Finally, the stop did not last very long, no more than ten minutes until

       Barrientos consented to the search.


[35]   Barrientos discusses several cases in support of his claim, but they are

       distinguishable. In Friend v. State, 858 N.E.2d 646, 651 (Ind. Ct. App. 2006), a

       panel of this Court determined the defendant was in custody, and should have

       been given Pirtle advisements, because he had been detained for forty-five

       minutes, was put in a patrol car and repeatedly told to stay there, and was

       handcuffed - circumstances that are not present in the current case. In Miller v.

       State, 846 N.E.2d 1077, 1081 (Ind. Ct. App. 2006), trans. denied, a panel of this

       Court deemed the defendant to be in custody, and entitled to Pirtle advisements,

       because he was removed from his car and handcuffed. By contrast, Barrientos

       was never handcuffed. Finally, in Crocker, 989 N.E.2d at 819, a panel of this

       Court deemed the defendant to have been in custody because, after an officer

       placed the defendant in a patrol vehicle, the officer immediately administered a

       sobriety test and also lied to the defendant, stating that he knew the defendant

       had marijuana. Neither of those circumstances was present in Barrientos’ case.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 15 of 16
[36]   Under the circumstances of this case, Barrientos was not in custody and the

       detective was not obligated to give Barrientos Pirtle advisements while asking

       whether Barrientos would consent to a vehicle search. See Meredith, 906 N.E.2d

       at 874 (Pirtle advisements unnecessary where the record reveals “nothing more

       than a conventional traffic stop.”). The trial court did not err by rejecting

       Barrientos’ claim that his consent to the search was invalid pursuant to Indiana

       Constitution article I, section 11.


                                                Conclusion
[37]   For the foregoing reasons, we affirm the judgment of the trial court.


[38]   Affirmed.


       Najam, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 64A03-1508-CR-1128 | February 17, 2016   Page 16 of 16
