FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOHN D. FIEREK                                GREGORY F. ZOELLER
Voyles, Zahn, Paul, Hogan & Merriman          Attorney General of Indiana
Indianapolis, Indiana
                                              IAN McLEAN
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                            FILED
                                                                        Oct 03 2012, 9:23 am

                             IN THE                                             CLERK
                   COURT OF APPEALS OF INDIANA                                of the supreme court,
                                                                              court of appeals and
                                                                                     tax court




STEVEN B. STEELE,                             )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 49A05-1202-CR-54
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


        INTERLOCUTORY APPEAL FROM THE MARION SUPERIOR COURT
                    The Honorable James B. Osborn, Judge
                      Cause No. 49F15-1104-FD-27161



                                   October 3, 2012


                             OPINION - FOR PUBLICATION


CRONE, Judge
        Steven B. Steele appeals the trial court’s denial of his motion to suppress. We affirm.

        The relevant facts are undisputed. Around 3:30 a.m. on April 17, 2011, Indianapolis

Metropolitan Police Department Officer Steven Ferklic was alerted to a Jeep Cherokee

parked in the middle of the road near the intersection of 34th Street and Dandy Trail with its

lights and engine off and three flat tires. Steele was slumped unconscious in the front seat.

Officer Ferklic was unable to wake Steele, so he had firefighters break the Jeep’s rear

window. Steele awoke, and Officer Ferklic asked him to exit the Jeep. The dazed Steele

staggered unsteadily toward the rear of the Jeep, and Officer Ferklic noticed that he had

bloodshot eyes, slurred speech, and the odor of an alcoholic beverage on his breath. Officer

Ferklic had the Jeep towed, arrested Steele for misdemeanor public intoxication, and

transported him to a nearby gas station with the intent to administer field sobriety tests on a

more level surface away from the intersection. While at the gas station, Officer Ferklic read

Steele his Miranda rights and asked if anyone else had been in his vehicle. Steele admitted

that he had been alone and had driven the vehicle to that location. Because of the cold

weather, Officer Ferklic decided to transport Steele to a police station approximately ten

minutes away to administer a horizontal gaze nystagmus test, which Steele failed, as well as a

breath test.1

        The State charged Steele with two counts of class A misdemeanor operating a vehicle

while intoxicated (“OWI”) (one for OWI in a manner that endangers a person pursuant to


        1
          Citing the probable cause affidavit, Steele says that the breath test indicated an alcohol concentration
equivalent of 0.17. Appellant’s Br. at 3. We note, however, that the affidavit was not admitted into evidence
at the suppression hearing. We also note that Steele’s brief is missing the table of contents and table of
authorities required by Indiana Appellate Rule 46(A).

                                                        2
Indiana Code Section 9-30-5-2(b) and one for operating with an alcohol concentration

equivalent of at least 0.15 pursuant to Indiana Code Section 9-30-5-1(b)); one count of class

B misdemeanor public intoxication pursuant to Indiana Code Section 7.1-5-1-3; and two

counts of class D felony OWI pursuant to Indiana Code Section 9-30-5-3 (enhancements of

the first two counts based on a prior OWI conviction).

       Steele filed a motion to suppress, arguing in pertinent part that the statements that he

made to Officer Ferklic at the gas station should be suppressed pursuant to Indiana Evidence

Rule 617, which reads as follows:

       (a) In a felony criminal prosecution, evidence of a statement made by a person
       during a Custodial Interrogation in a Place of Detention shall not be admitted
       against the person unless an Electronic Recording of the statement was made,
       preserved, and is available at trial, except upon clear and convincing proof of
       any one of the following:

              (1) The statement was part of a routine processing or “booking” of the
              person; or

              (2) Before or during a Custodial Interrogation, the person agreed to
              respond to questions only if his or her Statements were not
              Electronically Recorded, provided that such agreement and its
              surrounding colloquy is Electronically Recorded or documented in
              writing; or

              (3) The law enforcement officers conducting the Custodial
              Interrogation in good faith failed to make an Electronic Recording
              because the officers inadvertently failed to operate the recording
              equipment properly, or without the knowledge of any of said officers
              the recording equipment malfunctioned or stopped operating; or

              (4) The statement was made during a custodial interrogation that both
              occurred in, and was conducted by officers of, a jurisdiction outside
              Indiana; or



                                              3
              (5) The law enforcement officers conducting or observing the Custodial
              Interrogation reasonably believed that the crime for which the person
              was being investigated was not a felony under Indiana law; or

              (6) The statement was spontaneous and not made in response to a
              question; or

              (7) Substantial exigent circumstances existed which prevented the
              making of, or rendered it not feasible to make, an Electronic Recording
              of the Custodial Interrogation, or prevent its preservation and
              availability at trial.

       (b) For purposes of this rule, “Electronic Recording” means an audio-video
       recording that includes at least not only the visible images of the person being
       interviewed but also the voices of said person and the interrogating officers;
       “Custodial Interrogation” means an interview conducted by law enforcement
       during which a reasonable person would consider himself or herself to be in
       custody; “Place of Detention” means a jail, law enforcement agency station
       house, or any other stationary or mobile building owned or operated by a law
       enforcement agency at which persons are detained in connection with criminal
       investigations.

       (c) The Electronic Recording must be a complete, authentic, accurate,
       unaltered, and continuous record of a Custodial Interrogation.

       (d) This Rule is in addition to, and does not diminish, any other requirement of
       law regarding the admissibility of a person’s statements.

At the hearing on his motion to suppress, Steele argued that Officer Ferklic violated the rule

by failing to transport him to a “Place of Detention” to record his statement. The trial court

denied Steele’s motion, and this interlocutory appeal ensued.

       Steele frames the issue as whether Evidence Rule 617 “should be interpreted to

require law enforcement to transport a suspect to a Place of Detention when a custodial

interrogation is going to occur and circumstances make the transport reasonable?”

Appellant’s Br. at 1. Two observations are in order. One, Evidence Rule 617 does not apply


                                              4
in this case because Officer Ferklic’s interrogation of Steele did not occur in a Place of

Detention. And two, the rule does not, either explicitly or implicitly, impose an affirmative

duty on law enforcement officers to transport a person to a Place of Detention before

conducting a Custodial Interrogation. Steele’s policy arguments for imposing such a duty

should be directed to the Evidence Rules Review Committee, which may recommend to the

Indiana Supreme Court that the rule be amended accordingly. See Ind. Evidence Rule 1101.

In sum, we affirm the denial of Steele’s motion to suppress.

       Affirmed.

RILEY, J., and BAILEY, J., concur.




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