MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                              Sep 19 2017, 8:53 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kimberley M. Couch,                                      September 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1704-CR-878
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Rhett M. Stuard,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D02-1607-CM-1089



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017        Page 1 of 7
                                           Case Summary
[1]   Kimberley M. Couch (“Couch”) appeals her conviction of Possession of

      Paraphernalia, as a Class C misdemeanor.1 She challenges the admission of

      evidence obtained during a warrantless search of her residence.


[2]   We reverse.



                                Facts and Procedural History
[3]   On July 9, 2016, Couch answered a knock at her front door. At the door was

      Hendricks County Sheriff’s Department Deputy Robert Lenover (“Deputy

      Lenover”) responding to a complaint that an odor of marijuana had emanated

      from the residence. Deputy Lenover asked if Couch was the homeowner and

      Couch replied that she was renting the property. Couch then stepped outside.


[4]   Deputy Lenover told Couch that he smelled marijuana, at which point Couch

      admitted to smoking marijuana before he arrived. Deputy Lenover read Couch

      her Miranda rights and then told Couch that he could either apply for a search

      warrant or she could let him inside and give him the contraband. Couch agreed

      to let Deputy Lenover enter the residence.


[5]   Once inside, Couch gave Deputy Lenover a hollowed-out book containing

      rolling papers and a smoking pipe. Shortly thereafter, a houseguest retrieved a




      1
          Ind. Code § 35-48-4-8.3(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017   Page 2 of 7
      bag containing a plant material that resembled marijuana. Deputy Lenover

      then advised Couch that he would apply for a criminal summons.


[6]   Couch was charged with Possession of Marijuana, as a Class B Misdemeanor, 2

      and Possession of Paraphernalia, as a Class C misdemeanor, and a bench trial

      was conducted on February 10, 2017. The trial court found Couch not guilty of

      Possession of Marijuana and guilty of Possession of Paraphernalia, and

      imposed a suspended jail sentence of sixty days and 180 days of probation.


[7]   Couch now appeals.



                                     Discussion and Decision
[8]   Couch argues, as she did at trial, that the evidence procured during the

      warrantless search was inadmissible because it was obtained in violation of her

      constitutional rights under the Fourth Amendment to the United States

      Constitution and Article 1, section 11 of the Indiana Constitution. A trial court

      has broad discretion in ruling on the admissibility of evidence but where a

      constitutional violation is alleged, our standard of review is de novo. Leonard v.

      State, 73 N.E.3d 155, 168 (Ind. 2017). Moreover, where our constitutional

      evaluation depends on disputed historical facts, we “consider conflicting

      evidence most favorably to the trial court’s ruling.” Campos v. State, 885 N.E.2d




      2
          I.C. § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017   Page 3 of 7
       590, 596 (Ind. 2008). Thus, we do not reweigh the evidence but we decide de

       novo whether the evidence established the constitutionality of a search. 3 See id.


[9]    Here, Deputy Lenover conducted a warrantless search of the residence.

       Warrantless searches are “per se unreasonable under the Fourth Amendment—

       subject only to a few specifically established and well-delineated exceptions.”

       Katz v. United States, 389 U.S. 347, 357 (1967) (footnote omitted). “One well-

       recognized exception to the warrant requirement is a voluntary and knowing

       consent to search.” Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001). Moreover,

       Article 1, section 11 of the Indiana Constitution “requires that a person in

       custody explicitly waive the right to counsel before giving a valid consent to a

       search.’” Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (citing Pirtle v. State,

       263 Ind. 16, 323 N.E.2d 634, 640 (1975)). Accordingly, for a person in custody

       to validly consent to a search, the person must be informed of the right to

       consult with counsel. Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995) (noting the

       requirement of a Pirtle advisement and that a Miranda warning is insufficient).


[10]   Couch argues that she was in custody when she agreed to the search and that

       because she was not informed of her right to consult with counsel, she did not

       tender valid consent. In distinguishing between custodial encounters and non-

       custodial encounters, we consider the circumstances of the encounter and




       3
         Couch argues that, at one point, the trial court applied the incorrect standard in reviewing her constitutional
       claim. However, because we are conducting de novo review of this question of law, we need not address
       Couch’s contention.

       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017             Page 4 of 7
       “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, 655 N.E.2d at 55. Indeed, the aim of Pirtle and

       its progeny is to “police the line between ordinary investigative detentions and

       full-blown custodial interrogations by examining the circumstances for

       objectively overpowering, coercive, or restraining police behavior, such that the

       facts demonstrate a degree associated with a formal arrest.” Meredith v. State,

       906 N.E.2d 867, 873-74 (Ind. 2009) (quotation marks omitted). Several

       circumstances are relevant to this inquiry, including but not limited to


               whether the defendant was read his Miranda rights, handcuffed,
               restrained in any way, 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,
               868 N.E.2d at 1120-21; and the length of the detention, e.g.,
               Cooley v. State, 682 N.E.2d 1277, 1279 (Ind. 1997).


       Id. at 874.


[11]   Here, Deputy Lenover initiated contact with Couch and confirmed that she

       occupied the residence. When Couch stepped outside, Deputy Lenover stated

       that he smelled marijuana—a point when any reasonable person would feel

       under suspicion. Couch then made an incriminating admission and,

       immediately thereafter, Deputy Lenover gave a Miranda advisement and sought


       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017   Page 5 of 7
       consent to search the residence. When viewed objectively, we conclude that

       these circumstances were sufficiently coercive to require the constitutional

       protection of a Pirtle advisement. That is, “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, 655 N.E.2d at 55; see Peel v. State, 868 N.E.2d

       569 (Ind. Ct. App. 2007) (identifying a prior incriminating admission as a key

       factor when concluding that a police encounter had become custodial); State v.

       Linck, 708 N.E.2d 60, 63 (Ind. Ct. App. 1999), trans. vacated (determining that

       the defendant was in custody after admitting to smoking marijuana “because a

       reasonable person would not have felt free to leave following that admission”).


[12]   Because Couch did not receive a Pirtle advisement, Deputy Lenover did not

       obtain valid consent to search the residence. Moreover, the State has not

       identified any other exception to justify the warrantless search. Thus, the

       warrantless search offended the Indiana Constitution and the trial court erred in

       admitting evidence procured during the search. Disregarding that evidence,

       there is insufficient evidence to support Couch’s conviction of Possession of

       Paraphernalia. We therefore reverse and order the trial court to vacate the

       conviction.



                                               Conclusion
[13]   The trial court erred in admitting evidence obtained during an unconstitutional

       search of Couch’s residence.



       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017   Page 6 of 7
[14]   Reversed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1704-CR-878 | September 19, 2017   Page 7 of 7
