                                                             FILED
                                                        Oct 04 2018, 1:55 pm

                                                             CLERK
                                                         Indiana Supreme Court
                                                            Court of Appeals
                                                              and Tax Court



                          IN THE

   Indiana Supreme Court
            Supreme Court Case No. 18S-CR-00166

                       David Wright,
                  Appellant (Defendant below),

                               –v–

                     State of Indiana,
                    Appellee (Plaintiff below).


         Argued: May 17, 2018 | Decided: October 4, 2018

  Appeal from the Blackford Circuit Court, No. 05C01-1601-F1-36
              The Honorable Dean A. Young, Judge

    On Petition to Transfer from the Indiana Court of Appeals,
                    No. 05A02-1610-CR-02397



                     Opinion by Justice Goff
Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Goff, Justice.

   Nearly a century ago, this Court adopted and applied the exclusionary
rule to Indiana’s jurisprudence. The rule provides: When, in violation of
Article 1, Section 11 of the Indiana Constitution, the State gains evidence
by illegal means (i.e., an unreasonable search or seizure), it may not then
use that evidence against the defendant. Through the fruit of the
poisonous tree doctrine, we’ve extended the exclusionary rule to exclude
evidence directly or derivatively obtained from the illegal conduct. This
present case tests that rule’s limits. Specifically, this case asks, as a matter
of Indiana constitutional law, does an illegal seizure and search
irreparably stain all derivative evidence the police gain afterwards,
making it inadmissible under the exclusionary rule, or can the evidence be
sufficiently separated from that primary taint to be admissible? In simpler
terms, does the attenuation doctrine apply in Indiana constitutional law?

    While the Court of Appeals previously confronted these questions—
and split over the answers—they are novel questions for us that we
answer today. We hold the attenuation doctrine can apply under the
Indiana Constitution. Evidence found after an unreasonable search or
seizure can become attenuated from that illegality, meaning the evidence
itself or the circumstances in which the evidence was discovered were
sufficiently distinguishable or separated from the search or seizure. In this
particular case, we find the challenged evidence—the defendant’s
statements to law enforcement—were amply attenuated from the illegal
search. We, therefore, affirm the defendant’s child-molestation
convictions.


Factual and Procedural History
   Defendant David Wright lived with his best friend’s young family in an
apartment located at 220 East Water Street in Hartford City, Indiana.
Wright and the family were home on the afternoon of Friday, January 22,
2016, when the FBI and Indiana State Police SWAT, in the course of a
federal child pornography investigation, knocked on the door.




Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018        Page 2 of 19
   Based upon information that an IP address located and billed to 220 ½
East Water Street, Hartford City, Indiana, accessed known child
pornography websites, FBI Special Agent Jeffrey Robertson secured a
federal search warrant for the home. Upon arriving, Robertson realized
the large home housed two smaller apartments, upstairs and downstairs
units. The upstairs apartment’s street address being 220 ½ East Water
Street and the downstairs apartment’s address being 220 East Water
Street—Wright’s residence.

  While searching the upstairs apartment and seizing the computer
equipment therein, Agent Robertson learned both apartments shared the
same internet connection, all occupants knew the password, and all
occupants used the connection. Rather than securing a second search
warrant for 220 East Water Street and instead of having 220’s occupants
sign written consent forms he kept in his vehicle, Robertson gave 220’s
occupants (including Wright) two options: (1) verbally consent to a search
of their computer equipment, surrender those devices that day, and
receive them back quickly; or (2) leave the residence and stay away until
he secured and executed another federal search warrant. 220’s occupants
(including Wright) verbally consented to the search, handed over their
computers, and provided Agent Robertson with their usernames and
passwords.

   Agent Robertson seized the equipment and searched them over the
weekend. The search—done by running software called OS Triage on the
seized devices—revealed Wright’s computer contained hash values
matched to known child pornography images. Equipped with this
information, Agent Robertson returned to the East Water Street
apartments on Monday, January 25th, and released all the seized
computer equipment, except Wright’s.

  When Wright inquired about his devices, Agent Robertson asked to
speak with him privately, giving him the option of talking inside or
outside the house. Wright chose to talk outside. Agent Robertson and
Wright went to the former’s car parked in front of the house. Agent
Robertson sat in the driver’s seat, Wright sat in the front passenger seat,
and another officer sat in the backseat. Before beginning a conversation,



Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018     Page 3 of 19
Robertson told Wright the car was unlocked, and he could leave at any
point. Agent Robertson informed Wright he was not under arrest.

   After Wright indicated he understood those warnings, Agent Robertson
confronted him with the search results. He asked Wright if he used the
TOR network1 to search for child pornography and Wright answered
affirmatively. Agent Robertson informed Wright that standard protocol
required him to conduct a forensic interview with any children living in
the home “just to make sure that no [sexual] contact has occurred.” Wright
then admitted having sexual contact with two children living in the home.

    With this disclosure, Agent Robertson immediately stopped the
interview, exited the vehicle, and phoned Hartford City Police to report
what Wright just told him. The police asked Robertson to place Wright
under arrest and take him to the station. Robertson returned to the car,
informed Wright he was now under arrest, and handcuffed him. After
transporting Wright to the Hartford City Police Department, Robertson
handed Wright over to Detective Cody Crouse, but he stuck around to sit
through the interview.

    Detective Crouse read Wright the standard Miranda warnings. Wright
signed a waiver form and agreed to talk to Crouse. During that interview,
Wright admitted to repeatedly molesting two children, W.S. (age 11) and
F.S. (age 4) over a year’s span, with the most recent sexual contact
occurring within the last two weeks.

   The State charged Wright with four counts of Level 1 felony child
molesting: two counts for the sexual contact with W.S. and two counts for
the sexual contact with F.S.




1Agent Robertson testified that “TOR” stands for The Onion Router. Tr. 16. He likened TOR
to the “dark web” where websites are theoretically “completely anonymous and completely
unidentifiable.” Id. at 17. He explained that when a person accesses a website via the TOR
network the site’s identifying information “will bounce between hundreds of servers across
the world,” making it nearly impossible for law enforcement to track and subpoena every
server. Id.



Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018                  Page 4 of 19
   Wright moved to suppress all evidence obtained from the FBI search
and subsequent police interviews. Invoking the Fourth Amendment of the
United States Constitution and Article 1, Section 11 of the Indiana
Constitution, Wright alleged he’d been illegally detained and searched.
Specifically, he argued he did not give valid consent to search his
computers because Agent Robertson failed to inform him that he had the
right to refuse consent. Following a hearing on Wright’s motion, the trial
court granted in part, and denied in part. Finding that Wright’s consent to
the search proved invalid under both the federal and state constitutions,
the trial court suppressed evidence obtained from searching Wright’s
computer and electronic equipment. But the court denied suppression of
Wright’s statements to Agent Robertson and Detective Crouse, concluding
they were sufficiently independent and attenuated from the illegal search.

   Wright’s incriminating statements were admitted during the
subsequent bench trial. The court found Wright guilty as charged, and,
after identifying aggravators and mitigators, imposed an aggregate sixty-
year sentence. The court deemed Wright a sexually violent predator and a
credit restricted felon.

   Wright appealed, arguing the trial court erred by only partially
granting his suppression motion and by admitting his statements to law
enforcement. He also argued his sixty-year sentence proved inappropriate
since he had no criminal history, he admitted his crimes, he appreciated
the wrongfulness of his conduct, and he had been victimized as a child.

  The Court of Appeals reversed Wright’s convictions, holding the trial
court improperly admitted Wright’s confessions to Agent Robertson and
Detective Crouse. Wright v. State, 92 N.E.3d 1127 (Ind. Ct. App. 2018). The
court focused its analysis on Article 1, Section 11, particularly whether
Indiana’s jurisprudence recognized the attenuation doctrine as an
exception to the exclusionary rule. Id. at 1131–33. It ultimately rejected the
attenuation doctrine for Indiana. Id. at 1132–33.

   Upon removing attenuation from its legal calculus, the court
concluded: “[T]here is no dispute that Wright’s incriminating statements
to the officers on January 25, 2016, about touching the children directly
resulted from or derived from the unconstitutional search and seizure of


Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018      Page 5 of 19
Wright’s computers.” Id. at 1133. The court deemed Wright’s statements
fruit of the poisonous tree and, therefore, inadmissible evidence. Id.
Because the Court of Appeals reversed Wright’s convictions, it did not
address the parties’ arguments about the appropriateness of Wright’s
sentence. Id.

   The State sought transfer, arguing the Court of Appeals had divided
over this issue. In order to resolve the split in authority, we granted
transfer, thereby vacating this Court of Appeals opinion. Ind. Appellate
Rule 58(A).


Standard of Review
   The primary issue before us is whether Wright’s statements to law
enforcement constitute admissible evidence against him. The trial court
answered that query in the affirmative and admitted the statements. Since
decisions to admit or exclude evidence fall within the trial court’s sound
discretion, we afford those decisions deference and review them for an
abuse of discretion. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We will
reverse a trial court’s decision to admit evidence only if the decision was
“clearly against the logic and effect of the facts and circumstances and the
error affects [the defendant’s] substantial rights.” Id.

   However, to the extent the issue of admissibility turns upon a
constitutional query, we review the issue de novo, paying no deference to
the lower court’s constitutional determinations. Id. at 40–41.


Discussion and Decision
   Rooted deeply within Indiana constitutional law lies the principle that
when police obtain evidence by way of an unreasonable search or seizure
the evidence is excluded at the defendant’s trial. Callender v. State, 193 Ind.
91, 96, 98, 138 N.E. 817, 818–19 (1923). The exclusionary rule is not
required by the Indiana Constitution’s text—meaning, Article 1, Section 11
itself does not expressly mandate that courts suppress evidence got by
illegal means. Rather, the exclusionary rule represents a judicially-created



Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018      Page 6 of 19
remedy aimed first at deterring police misconduct and second at securing
Hoosiers’ rights. See Membres v. State, 889 N.E.2d 265, 273–74 (Ind. 2008)
(identifying “deterrence as the primary objective of [Indiana’s]
exclusionary rule,” but recognizing our exclusionary rule also protects
citizens’ privacy). Our exclusionary rule dates back ninety-five years,
nearly forty years before the United States Supreme Court made the
federal exclusionary rule applicable to the states through the Fourteenth
Amendment. Membres, 889 N.E.2d at 274 (citing Mapp v. Ohio, 367 U.S. 643
(1961)). See also Callender, 138 N.E. 817.

   One branch of Indiana’s exclusionary rule—universally known as the
fruit of the poisonous tree doctrine—operates to omit from trial evidence
directly or derivatively obtained from an illegal search or seizure. Gyamfi
v. State, 15 N.E.3d 1131, 1136 (Ind. Ct. App. 2014). Once a defendant
establishes that a search or seizure was unreasonable, he can invoke the
fruit of the poisonous tree doctrine by moving to suppress direct and
derivative evidence. Id.

  Over the years, Indiana courts have occasionally cultivated the rule to
achieve the purpose of deterring police misconduct. For example, Indiana
law recognizes two exceptions to the exclusionary rule and fruit of the
poisonous tree doctrine. One being the good-faith exception, where
illegally obtained evidence is not excluded if law enforcement acted in
“objectively reasonable reliance” on what they thought was a valid
warrant. Mers v. State, 482 N.E.2d 778, 782–83 (Ind. Ct. App. 1985)
(quoting United States v. Leon, 468 U.S. 897, 927 (1984) (Blackmun, J.,
concurring)). See also Hopkins v. State, 582 N.E.2d 345, 351 (Ind. 1991)
(recognizing Mers held the federal good-faith exception applicable to
Article 1, Section 11 claims); Ind. Code § 35-37-4-5 (2014 Repl.) (codifying
the good-faith exception). The other being the new-crime exception, which
allows for the admission of “evidence that defendants committed new and
distinct crimes in response to illegal searches or seizures by law
enforcement.” C.P. v. State, 39 N.E.3d 1174, 1183 (Ind. Ct. App. 2015). With
these exceptions, we note that Indiana’s exclusionary rule does not
countenance but-for exclusion where any and all evidence obtained after
an illegal search or seizure is automatically excluded, no matter what.



Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018    Page 7 of 19
Indeed, such a broad application would choke out the rule’s narrow
purposes.

    Today we must decide whether to further prune our exclusionary rule
to include the attenuation doctrine.2 This concept, accepted within federal
Fourth Amendment jurisprudence, holds that “not . . . all evidence is ‘fruit
of the poisonous tree’ simply because it would not have come to light but
for the illegal actions of the police[;]” Wong Sun v. United States, 371 U.S.
471, 487–88 (1963), rather, the objected-to evidence will be excluded as
fruit of the poisonous tree if police obtained it by exploiting the primary
illegality, id. at 488. Alternatively, evidence will be admitted if it is
attenuated from the illegality—if it is obtained by “means sufficiently
distinguishable to be purged of the primary taint.” Id. (citation omitted).
See also Clark v. State, 994 N.E.2d 252, 266–73 (Ind. 2013) (considering
whether federal attenuation doctrine applied to a search and seizure that
violated the Fourth Amendment).

  But just because federal Fourth Amendment jurisprudence accepts and
applies the attenuation doctrine does not necessarily mean Indiana’s
Article I, Section 11 jurisprudence will follow suit. The Indiana
Constitution demands from this Court independent analysis considering
that charter’s uniqueness. Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006).
And so, before we can resolve whether Indiana constitutional law
embraces attenuation, we must first reflect upon Indiana’s distinctive




2 Whether Indiana’s exclusionary rule includes the attenuation doctrine is a matter of first
impression for this Court, although the Court of Appeals splintered when considering the
question. Compare Trotter v. State, 933 N.E.2d 572, 583 (Ind. Ct. App. 2010) (“[W]e hold that the
attenuation doctrine has no application under the Indiana Constitution.”), and Gyamfi, 15
N.E.3d at 1137 (“[T]he attenuation doctrine has no place in the jurisprudence of Article 1,
Section 11 of the Indiana Constitution.”), with Turner v. State, 862 N.E.2d 695, 700–02 (Ind. Ct.
App. 2007) (applying the attenuation doctrine, but suppressing evidence obtained from an
illegal search because the evidence was not sufficiently attenuated from the original taint), and
State v. Foster, 950 N.E.2d 760, 763 n.2 (Ind. Ct. App. 2011) (finding attenuation applicable to
an Article 1, Section 11 challenge, but also acknowledging the Trotter court rejected the
attenuation doctrine).



Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018                      Page 8 of 19
approach to securing Hoosiers’ rights against unreasonable searches or
seizures.


I. Reasonableness provides the animating principle
   for all Article 1, Section 11 inquiries and must
   guide the decision on attenuation.
   This Court has said many times that although Article 1, Section 11 of
the Indiana Constitution and the Fourth Amendment to the United States
Constitution share vocabulary, they part company in application. When
developing Indiana’s Article 1, Section 11 test for evaluating a challenged
search or seizure, this Court eschewed the federal reasonable-expectation-
of-privacy test, Litchfield v. State, 824 N.E.2d 356, 359–60 (Ind. 2005), opting
instead for a test “focused on whether the actions of the government were
‘reasonable’ under the ‘totality of the circumstances,’” Shotts v. State, 925
N.E.2d 719, 726 (Ind. 2010) (quoting Litchfield, 824 N.E.2d at 359).
Consequently, Indiana courts evaluate a search or seizure on a case-by-
case basis, asking whether the police behaved reasonably considering the
totality of the circumstances. Brown v. State, 653 N.E.2d 77, 79 (Ind. 1995).
See also Litchfield, 824 N.E.2d at 359–61. And this Court often emphasizes
how reasonableness is the touchstone for Article 1, Section 11 inquiries.
See, e.g., id; Shotts, 925 N.E.2d at 726; Holder, 847 N.E.2d at 940. Likewise,
“[t]he focus of the exclusionary rule under the Indiana Constitution is the
reasonableness of police conduct.” C.P., 39 N.E.3d at 1182.

   Reasonableness, therefore, should shape our answer to the attenuation
question. Is it reasonable to admit evidence obtained after an illegal search
or seizure if the State shows that evidence was sufficiently attenuated
from the initial police misconduct? We answer yes, for two important,
intertwining reasons—the exclusionary rule’s purpose and the attenuation
doctrine’s function as the natural limit to exclusion.




Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018       Page 9 of 19
   A. Adopting the attenuation doctrine into Indiana
      constitutional law would not thwart the exclusionary
      rule’s purpose.
   Article 1, Section 11’s purpose “is to protect from unreasonable police
activity, those areas of life that Hoosiers regard as private.” Mitchell v.
State, 745 N.E.2d 775, 786 (Ind. 2001) (quoting Brown v. State, 653 N.E.2d at
79). The exclusionary rule, especially the fruit of the poisonous tree
doctrine, furthers this purpose through discouraging unreasonable police
activity by excluding illegally obtained evidence. Indeed, “[t]he
exclusionary rule is designed to deter police misconduct.” State v. Spillers,
847 N.E.2d 949, 957 (Ind. 2006) (quoting Hensley v. State, 778 N.E.2d 484,
489 (Ind. Ct. App. 2002)). The deterrence objective, though, is a binary
concept. The necessary complement to deterrence is protecting citizens
from constitutional violations. By deterring police intrusions on Hoosiers’
privacy, the exclusionary rule also helps secure citizens’ constitutional
rights. See Membres, 889 N.E.2d at 273 (“We . . . exclude [evidence] because
we consider it necessary to protect the privacy of all citizens from
excessive intrusion by law enforcement.”); id. at 277 (“[T]he exclusionary
rule was adopted not only to deter police misconduct but also to protect
the integrity of the judicial process and to protect the rights of criminal
defendants.”) (Sullivan, J., dissenting).

   But deterrence-based exclusion is not a one-size-fits-all remedy that
merits but-for application in every situation. There could be some
situations where excluding evidence would not fulfill the rule’s purpose
of deterring future constitutional violations. Sometimes the police realize
their mistake and correct the behavior before securing new evidence. In
some cases, derivative evidence becomes so remote in time, place, or
agency from the original taint that excluding it would not deter future
police misconduct.

  No matter how principled the purpose behind exclusion, it exacts a
heavy societal cost, which cautions against applying it as a but-for rule.
We’ve acknowledged that excluding evidence impairs “the truth-finding
objective of trials” because excluded evidence is often relevant, reliable,
and probative. Membres, 889 N.E.2d at 272. Omitting this evidence from


Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018     Page 10 of 19
trial can result in a guilty person going free—which undoubtedly
undercuts society’s interest that criminals be punished. And so we’ve
cautioned that “[b]ecause there is this cost to enforcing the exclusionary
rule, it should be done only where appropriate to advance its [deterrent]
purpose.” Id. at 274 (emphasis added).

   This tension between deterring police misconduct and punishing guilty
criminals only strengthens our view that the attenuation doctrine strikes
the right balance between these competing interests.


   B. By evaluating the totality of the circumstances
      surrounding an illegal search or seizure, the attenuation
      doctrine acts as a reasonable check on the exclusionary
      rule’s fruit of the poisonous tree doctrine.

  The United States Supreme Court recently explained “[t]he attenuation
doctrine evaluates the causal link between the government’s unlawful act
and the discovery of evidence.” Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056,
2061 (2016). The federal attenuation doctrine distills that causation
evaluation to a three-factor test: (1) “[T]he temporal proximity between
the unconstitutional conduct and the discovery of evidence,” in other
words, “how closely the discovery of evidence followed the
unconstitutional search[;]” (2) “[T]he presence of intervening
circumstances[;]” and, most importantly, (3) “[T]he purpose and flagrancy
of the official misconduct.” Id. at 2062 (internal quotation marks omitted)
(quoting Brown v. Illinois, 422 U.S. 590, 603–04 (1975)). In application, the
federal attenuation doctrine essentially considers the totality of the
circumstances surrounding the illegality and the discovered evidence.

   By parsing the causal chain between the illegal search or seizure and
the derivative evidence, the attenuation doctrine necessarily poses
important questions like when, what, where, why, how the police
obtained the objected-to evidence. Asking these questions helps courts
examine the means by which police gained evidence following the initial
illegality. When did police find the evidence? How much time passed
between the illegality and securing the evidence? What intervening events



Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018     Page 11 of 19
occurred in that time frame? Did the police discover the evidence where
the illegality occurred? How did the evidence present itself, through
police action or through the defendant or through a third party? If
answering these questions reveals the means of discovering the evidence
were sufficiently separated from the illegal search or seizure by time,
circumstances, location, and agency, then the link between the initial
unreasonable search or seizure and the derivative evidence becomes
sufficiently attenuated that the evidence is admissible.

   As we see it, by examining the causal chain between the illegality and
the discovered evidence or looking at the totality of the circumstances,
attenuation is the natural, reasonable limit to the exclusionary rule’s fruit
of the poisonous tree doctrine. See State v. Eserjose, 259 P.3d 172, 179–80
(Wash. 2011) (reasoning “the attenuation doctrine defines the parameters
of the ‘fruit of the poisonous tree’ doctrine” since the two “stem from the
same source”); Commonwealth v. Damiano, 828 N.E.2d 510, 518 (Mass. 2005)
(citation omitted) (explaining that since the attenuation doctrine asks
whether the police exploited the illegality to gain evidence, “the
attenuation rule is ‘not an exception to the exclusionary rule but a test of
its limits’”); Wong Sun, 371 U.S. at 487–88 (announcing the first iteration of
the attenuation doctrine).


   C. Indiana constitutional law embraces the attenuation
      doctrine.
   Considering Indiana’s unique constitution and our emphasis on
reasonableness in the totality of the circumstances, we think the
attenuation concept fits nicely within our jurisprudence. Indiana law has
not endorsed a but-for exclusionary rule that automatically excludes all
derivative evidence acquired from an illegal search or seizure. And the
attenuation doctrine sets the outer limits for exclusion by tailoring the rule
to its purpose—deterring police misconduct and defending Hoosiers’
privacy rights. Today we hold the attenuation doctrine applies to claims
challenging the reasonableness of a search or seizure under Article 1,
Section 11.




Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018     Page 12 of 19
II. Indiana’s attenuation doctrine parallels the federal
    doctrine to the extent it considers the totality of the
    circumstances.
   Having decided the attenuation doctrine applies to claims brought
under Article 1, Section 11 of the Indiana Constitution, we must determine
how to evaluate if evidence is sufficiently distinguishable or attenuated
from the illegal search or seizure to become admissible at trial. In other
words, what should Indiana’s attenuation doctrine look like?

    Thus far, Indiana’s exclusionary rule parallels the federal rule in three
areas. First, the two rules share similar origins and histories. Mers, 482
N.E.2d at 782 n.6. Early iterations of the federal rule cited the Fifth
Amendment right against self-incrimination and Fourth Amendment right
to be free from unreasonable searches and seizures as bases for excluding
illegally obtained evidence. Id. Likewise, Indiana’s nascent exclusionary
rule relied upon the Indiana Constitution’s counterparts: Article 1, Section
14 (self-incrimination) and Article 1, Section 11 (unreasonable searches
and seizures). Id. Second, the rules already share two familiar exceptions.
Like federal jurisprudence, Indiana law adopted the good-faith and new-
crime exceptions. Third, the federal and state exclusionary rules share the
same prime purpose—deterring police from illegal conduct. Membres, 889
N.E.2d at 273 (citing Spillers, 847 N.E.2d at 957) (“Indiana search and
seizure jurisprudence, like federal Fourth Amendment doctrine, identifies
deterrence as the primary objective of the exclusionary rule.”).

   Since Indiana’s exclusionary rule compares to the federal rule, it
reasons that our attenuation doctrine parallel (but not parrot) the federal
exception. The theoretical and practical differences between Article 1,
Section 11 and the Fourth Amendment prevent us from simply copying
the federal rule. As we have said, the two provisions differ in both
application and scope. Because Article 1, Section 11 hinges upon
reasonableness considering the totality of the circumstances, this “Indiana
provision in some cases confers greater protections to individual rights
than the Fourth Amendment affords.” Shotts, 925 N.E.2d at 726. These




Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018    Page 13 of 19
differences, however, do not demand a different attenuation test for
Indiana.

   Precisely because Indiana places as paramount what is reasonable in
light of the totality of the circumstances and because the Indiana
Constitution can offer more protection, it follows that Indiana’s
attenuation exception begin with the federal three-part test but not
necessarily end there. An attenuation inquiry under Article 1, Section 11
will begin by considering three elements: (1) the timeline—particularly,
the time elapsed between the illegality and the acquisition of the evidence;
(2) the intervening circumstances—what, if any, intervening
circumstances occurred in that time; and (3) the police misconduct. This
third element, like the federal test, scrutinizes the purpose and
egregiousness behind the official misconduct. It examines whether the
police exploited the initial illegality to gain more evidence against the
defendant and then whether “the evidence came from the ‘exploitation of
that illegality or instead by means sufficiently distinguishable to be
purged of the primary taint.’” Turner v. State, 862 N.E.2d 695, 701 (Ind. Ct.
App. 2007) (citation omitted). See also Wong Sun, 371 U.S. at 488; Brown,
422 U.S. at 603.

    We anticipate that most of the facts and circumstances in any given
case will fall into one of these three categories. We, therefore, see this
three-part test as a good starting point for considering attenuation because
it essentially looks at the totality of the circumstances. To be sure, the
above test considers the entire timeline, what happens during that
timeline, and scrutinizes the police’s misconduct—which comports with
Indiana’s Article 1, Section 11 precedent. See Brown v. State, 653 N.E.2d at
79 (focusing on the police activity). But even so, we will not rigidly limit
ourselves to only these three factors. Every case must be considered on the
totality of the circumstances. If other factors present themselves, they will
be considered.


III. Wright’s confessions were admissible evidence.
   Turning to these particular facts and applying the above totality-of-the-
circumstances test, we find Wright’s statements to Agent Robertson and


Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018    Page 14 of 19
Detective Crouse sufficiently attenuated from the illegal search that we
will not exclude them. Specifically, the timing of Wright’s statements, the
intervening circumstances between the search and the statements, and the
non-flagrant, non-exploitative police misconduct, amply attenuate the
evidence from the illegal search and seizure. Wright’s incriminating
statements, therefore, constituted admissible evidence at his trial.


    A. The timeline

   A weekend passed between the illegal search and seizure. Agent
Robertson took possession of Wright’s computers on a Friday afternoon
and Wright’s incriminating statements came on the following Monday. He
had two full days, free from police presence, to mull his options or decide
what to say when Robertson returned. Yet he did not seek counsel from
friends, family, or an attorney. Wright did not have to make a split-second
decision on whether to speak with police; he had the benefit of time. His
confessions cannot be attributed to mid-search nervous ramblings.
Wright’s statements were temporally detached from the illegality.


   B. The intervening circumstances

   Much happened between the search and Wright’s confessions. Wright
initiated a conversation with law enforcement by inquiring into when he
would get back his computer equipment. Though not under arrest, he
voluntarily spoke with Agent Robertson. And, without being asked,
Wright admitted that he had sexual contact with W.S. and F.S.

   Only after this disclosure did Agent Robertson formally arrest Wright
and take him to the Hartford City Police Department. There Wright
received Miranda warnings (both written and oral) and waived Miranda.
Then he participated in a voluntary discussion with Detective Crouse
where he admitted to the molestations. These are compelling intervening
circumstances supporting attenuation.




Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018   Page 15 of 19
   C. The police misconduct

    The police did not commit flagrant misconduct here or exploit the
illegal search. Based on his testimony at the suppression hearing, Agent
Robertson believed he presented Wright with two constitutional options:
give verbal consent or wait for a federal search warrant. In fact, he
testified that FBI procedure allowed him to get either written or verbal
consent to a warrantless search. Although he thoroughly discussed the
two options with 220’s occupants, Agent Robertson failed to inform them
(and Wright) that they could refuse consent. That omission prompted the
trial court to suppress the evidence from the search. While we certainly
don’t condone Robertson’s oversight, especially when he had consent
forms in his vehicle, his failure to tell Wright he could refuse consent does
not strike us as flagrant misconduct.

   What’s more, this record does not suggest the police manipulated
Wright’s invalid consent to search his computers in order to coerce him
into confessing to child molestation. Agent Robertson arrived at Wright’s
home in the course of a federal child-pornography investigation. He did
not suspect Wright to be a child molester.

   When Agent Robertson spoke with Wright on the Monday following
the search and seizure, he took pains to make sure Wright understood he
was not under arrest and not required to talk to him. He allowed Wright
to choose where they spoke. Once in the car, he reminded Wright the car
doors were unlocked, and Wright could stop the conversation and leave at
any time.

  Only after Wright admitted to having child pornography on his
computers did Agent Robertson say that FBI protocol required him to
speak to any children living in the home. He did not ask Wright if he had
any sexual contact with the children, but Wright voluntarily confessed to
the molestations. Robertson immediately ended the interview and sought
direction from local police because his federal investigation just gained a
state layer.

   Upon taking custody of Wright, the Hartford City Police behaved
reasonably. The record does not suggest Detective Crouse exploited the



Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018    Page 16 of 19
illegal search. Detective Crouse Mirandized Wright and obtained a written
waiver from him before interviewing him.

   Considering the totality of the circumstances—the timeline, the
intervening circumstances, and the police misconduct—we conclude that
Wright’s confessions were sufficiently attenuated from the unreasonable
search so as to be purged of the primary taint. There was a meaningful
time gap between the search and Wright’s confessions during which he
had no further contact with law enforcement. Once he did encounter law
enforcement again, Wright voluntarily spoke with Agent Robertson and
Detective Crouse and disclosed he molested two children. And
scrutinizing the police conduct here shows that law enforcement did not
flagrantly flout Wright’s constitutional right against unreasonable
searches and the police did not exploit that illegal search to secure his
confessions. Accordingly, Wright’s statements amounted to admissible
evidence, and the trial court rightly admitted them.


IV. Wright’s 60-year sentence is not inappropriate.
   Since it reversed the convictions, the Court of Appeals did not address
Wright’s argument that his sixty-year sentence proved inappropriate
considering his crime and character. Wright requested we revise his
sentence downward to thirty years and the State countered by asking us
to revise the sentence upward to 120 years. Having granted transfer and
taking jurisdiction over this matter, we are duty-bound to address these
arguments now. Ind. Const. art. 7, § 6 (guaranteeing the right to one
appeal); Ind. Crim. Rule 11; Clark v. State, 506 N.E.2d 819, 821 (Ind. 1987).

   The Indiana Constitution gives this Court the power to review and
revise criminal sentences. art. 7, § 4. “We may revise a sentence authorized
by statute, if, after due consideration of the trial court’s decision, we find
the sentence inappropriate in light of the nature of the offense and the
character of the offender.” Gibson v. State, 51 N.E.3d 204, 215 (Ind. 2016)
(citing App. R. 7(B)). The defendant “bears the burden of persuading us
that his sentence is inappropriate.” Id.




Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018      Page 17 of 19
   We find that Wright did not meet his burden here. He argued his
character alone merited a lesser sentence; specifically, Wright noted he
had no criminal history, he admitted his crimes, he appreciated the
wrongfulness of his conduct, and he had been victimized as a child. We
find these reasons unconvincing, especially in light of the crimes he
committed. Over the course of a year, Wright repeatedly molested two of
his best friend’s young children. He occasionally filmed himself abusing
four-year-old F.S. and showed it to eleven-year-old W.S. During this time
Wright also viewed and downloaded child pornography. No positive
character traits, no matter how admirable or sympathetic, can redeem
these crimes.

   The State rightly points out that our constitutional authority to review
and revise criminal sentences under Article 7, Section 4 also includes the
power to increase a defendant’s sentence. See Kimbrough v. State, 979
N.E.2d 625, 630 (Ind. 2012); Carpenter v. State, 950 N.E.2d 719, 721 (Ind.
2011); Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010); McCullough v. State,
900 N.E.2d 745, 750 (Ind. 2009). But we decline to exercise that power here.
Wright’s sixty-year sentence essentially amounts to a life-sentence for this
thirty-three-year-old credit restricted felon. Even though Wright
committed unspeakable crimes against children, we think his sixty-year
sentence not inappropriate.


Conclusion
   Today we hold that the Indiana Constitution embraces the attenuation
doctrine. In our view, the attenuation concept settles well into Indiana’s
distinctive constitutional landscape since it essentially considers what is
reasonable given the totality of the circumstances. By grafting the
attenuation doctrine onto our Article 1, Section 11 jurisprudence we fix it
as the reasonable, natural limit to the exclusionary rule. In application, our
attenuation test will begin by examining the timeline between the
illegality and finding the derivative evidence, the intervening
circumstances occurring over that timeline, and the initial police
misconduct. But if other circumstances arise strengthening or weakening
attenuation, then they must also be considered. Applying this test here,


Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018    Page 18 of 19
we conclude Wright’s statements to law enforcement were sufficiently
attenuated from the illegal search so as to be purged of the original taint
and these were admissible at trial. We, therefore, affirm Wright’s
convictions.


Rush, C.J., and David, Massa, and Slaughter, JJ., concur.



ATTORNEY FOR APPELLANT
Chris M. Teagle
Muncie, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CR-00166 | October 4, 2018    Page 19 of 19
