                                                                         FILED
                                                                    Jun 21 2018, 10:15 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
                                IN THE

       Indiana Supreme Court
             Supreme Court Case No. 27S02-1710-CR-672

                          Aaron L. Fansler
                        Appellant (Defendant below)

                                    –v–

                           State of Indiana
                         Appellee (Plaintiff below).


           Argued: November 21, 2017 | Decided: June 21, 2018

        Appeal from the Grant Circuit Court, No. 27C01-1506-F3-15
                   The Honorable Mark E. Spitzer, Judge.

        On Petition to Transfer from the Indiana Court of Appeals,
                          No. 27A02-1610-CR-2325



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

   In this case we address whether, under Indiana Evidence Rule 617,
admission of incriminating statements made in a motel room 1 during the
course of a custodial interrogation required the State to make available an
electronic recording of those statements at trial. We find that the trial
court did not err in admitting the defendant’s statements without such a
recording because the motel room in question was not a “place a
detention,” as defined by the rule.


Facts and Procedural History
   On June 18, 2015, Aaron Fansler (“Fansler”) accepted a Facebook friend
request to connect with a user who appeared to be a twenty-one-year-old
woman named “Kenzie Allen” (“Kenzie”). Kenzie was not a real person;
a fake Facebook account using that name was set up by a drug task force
team investigating drug dealing in Grant County. Communicating first
through social media, and then through private text messages, Fansler
agreed to sell two-tenths of a gram of heroin to Kenzie at the Hart Motel,
located in Marion, Indiana.

   The next day, lured by the prospects of sexual intercourse and a drug
sale, Fansler visited Kenzie’s motel room where he was greeted by
Detective Wesley McCorkle, a member of the Joint Effort Against
Narcotics (“JEAN”) Team. Detective McCorkle identified himself as
Kenzie’s brother and assured Fansler that Kenzie had just stepped out to
purchase cigarettes and would return soon. Fansler, who appeared
visibly nervous, decided to wait for Kenzie outside the room. As Fansler
walked along the outside of the motel, a second officer, Detective Sergeant
John Kauffman, approached Fansler and arrested him. Fansler was




1The Court of Appeals decision and the State’s Petition to Transfer both state that the
custodial interrogation occurred in a hotel room. Upon review of the record, we determined
that the facility operated as a motel, rather than a hotel. The distinction does not change the
analysis or outcome in this decision, but for the sake of accuracy, we will henceforth refer to
the location of the custodial interrogation as a motel room.



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brought back into the motel room, where officers noticed a syringe
protruding from an open flap in his cargo pants. Officers retrieved the
syringe and, upon searching Fansler further, they recovered over a dozen
clonazepam and oxycodone pills, numerous empty plastic bags, a scale, a
tourniquet, a hypodermic needle, two cigarette packs, and more than $250
in cash.

   After Fansler’s pockets were emptied and his Miranda warnings were
read, Fansler made two incriminating statements. The first statement
came in response to officers’ questions about the drugs he promised to
sell. When officers asked Fansler “where the two points of heroin were,” 2
he told them that the “points” should be in the baggies. Tr. Vol. I at 147.
Officers then searched inside one of the cigarette packs and recovered two
small ziplock baggies containing a substance that later tested positive for
heroin. Within that same cigarette pack, officers found “another clear
baggy that contained a large amount of gray compressed powder.” Tr.
Vol. I at 149. That substance also later tested positive for heroin. When
officers asked Fansler “why he didn’t tell [them] about [the large amount
of compressed powder] being in the cigarettes in his possession,” Fansler
made a second incriminating statement, claiming that he did not want to
“get caught with it” and “go to jail for it.” Tr. Vol. I at 152.

   On June 24, 2015, Fansler was charged with possession of heroin with
intent to deliver, felony possession of heroin, misdemeanor possession of
a controlled substance, and misdemeanor possession of paraphernalia.
Fansler filed a motion to suppress his incriminating statements, which the
trial court denied after holding a preliminary hearing.

   A jury trial was held on August 1-2, 2016. Fansler admitted possession,
but denied intent to deliver and raised an affirmative entrapment defense.
During the State’s case in chief, Detective Sergeant Kauffman testified as
to Fansler’s two self-incriminating statements—that the two points he
promised to sell to Kenzie were in the baggies and that he didn’t tell
officers about the large amount of compressed powder in his possession



2   A point is one tenth of a gram of heroin. Fansler had agreed to sell “Kenzie” two points.



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because he didn’t want to go to jail for it. Ultimately, the jury found
Fansler guilty on all four counts.

   On September 9, 2016, Fansler was sentenced to thirteen years for
dealing, with ten years executed in the Department of Correction and
three years suspended. He was also sentenced to concurrent terms of two
years executed for possession of heroin, one year executed for possession
of a controlled substance, and one year executed for possession of
paraphernalia.

   Fansler appealed, alleging the two post-Miranda self-incriminating
statements he made to officers should not have been admitted into
evidence because no electronic recording of the statements was made
available at trial, as required by Indiana Evidence Rule 617. Fansler
further alleged that the sentencing court “failed to consider that the victim
of the crime induced or facilitated the offense” as a mitigation factor in his
sentence. Appellant’s Br. at 12.

   In a unanimous published opinion, the Court of Appeals upheld the
trial court’s conviction, finding that although the trial court erred in
admitting Fansler’s statements without an electronic recording, any error
committed was harmless because Fansler’s own admissions at trial and
the generally uncontested nature of his possession of heroin eliminated
the likelihood that the challenged statements contributed to the verdict.
Fansler v. State, 81 N.E.3d 671, 678 (Ind. Ct. App. 2017). As to the
sentencing issue, the Court of Appeals found that the trial court did not
abuse its discretion in not considering the proposed mitigating factor. Id.

  The State sought transfer, which we granted, thereby vacating the
Court of Appeals opinion. Ind. Appellate Rule 58(A).


Standard of Review
   Challenges to the admission of evidence are ordinarily reviewed for an
abuse of trial court discretion. Williams v. State, 43 N.E.3d 578, 581 (Ind.
2015). In those instances, we will reverse only where the decision is
clearly against the logic and effect of the facts and circumstances. Joyner v.



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State, 678 N.E.2d 386, 390 (Ind. 1997). However, when a trial court’s
evidentiary ruling rests upon the proper interpretation of a statute or rule
of evidence, it inherently presents a question of law, which we review de
novo. Patchett v. Lee, 60 N.E.3d 1025, 1028 (Ind. 2016).


Discussion and Decision
   Although the Court of Appeals affirmed Fansler’s conviction, the State
challenges the Court of Appeals’ determination that the trial court erred in
admitting Fansler’s incriminating motel room statements without an
electronic recording. Fansler did not file a response to the State’s petition,
but made his opposition clear at oral argument; he argued that the Court
of Appeals was correct in finding that the trial court erred and that the
booking exception did not apply, but disputed whether the harmless error
exception saved the statements from exclusion.

   Since our Court has yet to construe Rule 617, we elect to address
whether the trial court erred in admitting Fansler’s incriminating
statements without an electronic recording. As for the other issue the
Court of Appeals addressed—whether the trial court correctly heard and
considered Fansler’s proffered mitigator—we summarily affirm.


I. The trial court did not err in admitting Fansler’s
   statements.
   Indiana Evidence Rule 617 is not a constitutional requirement or a
prophylactic rule meant to enforce the Constitution; rather, it is a rule of
judicial administration. Thus, assessing the admissibility of Fansler’s
statements requires only examining the rule for intent. In doing so, our
goal is to determine whether it applies to the circumstances before us. We
find that it does not.

   Rule 617 heightens the requirements for admissibility of statements in
certain circumstances by specifically providing that, “[i]n a felony
prosecution, evidence of a statement made by a person during a Custodial
Interrogation in a Place of Detention shall not be admitted against the


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person unless an Electronic Recording of the statement was made,
preserved, and is available at trial . . . .” Ind. Evidence Rule 617(a).
Subsection (b) further defines several terms found in subsection (a). For
example, an “electronic recording” is defined as “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.” Ind. Evidence Rule 617 (b). A “custodial interrogation” is
defined as “an interview conducted by law enforcement during which a
reasonable person would consider himself or herself to be in custody.” Id.

  The State did not make available at trial an electronic recording of
Fansler’s statements and concedes that the statements were made in the
course of a custodial interrogation. Indeed, a review of the record
confirms that any reasonable person in Fansler’s position would have
considered himself in custody. Thus, whether Rule 617’s electronic
recording mandate for admission of statements applies here turns on
whether the motel room used to conduct the custodial interrogation was a
“place of detention.”

    The rule is straightforward about what constitutes a place of detention.
A place of detention is defined in subsection (b) as 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.” Ind. Evidence Rule 617(b). We
can be sure that the motel room used to interrogate Fansler was neither a
jail, nor a law enforcement agency station house. And it is also clear that
law enforcement owned no part of the motel, including the room where
Fansler’s custodial interrogation took place. The Hart Motel was owned
by a man known to officers as “Bobby,” who was friendly with police and
on occasion allowed police to conduct operations, free of charge. But
whether law enforcement operated the motel room in a manner that
transformed it into a place of detention is less obvious.

   The rule, unfortunately, does not define what it means to operate a
space in a manner that transforms it into a place of detention. For that, we
turn to the ordinary use of the word “operate.” “Operate” has several
definitions, but the one we find most applicable here defines it as



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“control[ling] or direct[ing] the functioning of.” Webster’s II New College
Dictionary (1st ed. 1995). In other words, we must determine whether law
enforcement controlled or directed the functioning of the motel room as a
place of detention. To guide our lower courts, we’ve identified several
factors that we think are useful in this inquiry. Courts should assess: 1)
the control that law enforcement has over the premises, 2) the frequency
of use to conduct custodial interrogations, and 3) the purpose for which
law enforcement uses the space.

  Fansler sheds some light on the degree of control law enforcement
exercised. He specifically argues that, unlike in Steele v. State, 975 N.E.2d
430, 432 (Ind. Ct. App. 2012), where our Court of Appeals found that a gas
station used by law enforcement to question a defendant after an arrest
was not a place of detention, the significant control that law enforcement
wielded over the motel room here—the number of times law enforcement
used the space in the past and the autonomy given by the owner to
modify the space for law enforcement needs—transformed it into a space
operated by law enforcement as a place of detention. Fansler also
suggests that because law enforcement chose the location, lured him there,
and waited for several hours before his arrival, we should consider that
they had ample time to equip the room with recording devices that would
capture the custodial interrogation. But Fansler overlooks several facts
regarding control that cut against his argument. For instance, the room
was controlled by law enforcement only in the sense that officers
temporally used it to pose as drug buyers. There is also no indication that
the room was significantly altered or that the room was set aside for the
exclusive use of law enforcement; presumably, the room continued
operating as a motel room after officers cleared out. We find that the
control law enforcement wielded over the space was limited and, at all
times, dictated by the motel’s owner.

   As for frequency of use, police did not exercise the type of long-term
control that is ordinarily associated with operating a space. Police use of
the room was sporadic by any measure; they used the room in only three
sting operations within the past year. Although no bright line rule in
terms of frequency will dictate when a space comes to be operated by law
enforcement, we think three times during the course of a year is too few.


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   Finally, and most importantly, we find that the primary use of the
motel room was surveillance, not interrogation. Law enforcement set up
shop in the motel room because they believed Fansler was willing to carry
out a drug transaction in that environment. A motel room also gave
officers a controlled space to safely execute an arrest and search the
suspect for contraband. Law enforcement’s post-arrest questions were of
the nature expected during a search for drugs. They wanted Fansler to tell
them where he had hidden the heroin. When officers found more
contraband than expected, they asked Fansler why he withheld that
information from them. These incidental questions are not what Rule 617
intended law enforcement to capture on video. A “place of detention”
describes a more formal setting where interrogations are routinely carried
out in a systematic manner. While a jail or station house ordinarily serve
this purpose, a temporary mobile command post where police have
established a presence to handle an increase in processing needs (perhaps
due to a large sporting event) may serve as the functional equivalent of a
station house. But the manner in which the space at issue was used does
not support a finding that it became the functional equivalent of a station
house. Although a custodial interrogation occurred here, as often does
during arrests, the primary use of the room was not to conduct custodial
interrogations.

   In sum, Fansler’s argument suffers from the malady of over-reliance on
a single factor: control of the room. While control over a space is certainly
important in terms of assessing whether law enforcement operates it as a
place of detention, Fansler overlooks that in this case the frequency of the
motel room’s use was sporadic and the primary purpose of law
enforcement’s control over the room was surveillance rather than
interrogation. Under Rule 617, officers must equip facilities serving the
functional equivalent of a station house with recording devices, but a
motel room used sporadically to carry out a sting operation is simply not
the type place the rule was meant to reach.

   Accordingly, we find that the motel room, as used by law enforcement
in this case, was not a place of detention. This is not to say that a motel
room can’t ever become a place of detention. Had the degree of control
over the motel room, frequency of use, and the purpose of the use


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indicated that law enforcement was operating the motel room as the
functional equivalent of a station house, then perhaps we would have a
different outcome. But in this case, the trial court did not err in admitting
Fansler’s incriminating statements without an electronic recording.


II. We need not probe further into the harmless error
    and routine booking exceptions.
   Because we determine that the trial court did not err in admitting
Fansler’s incriminating statements, we need not address whether the
harmless error exception applies. Likewise, whether the statements were
made as part of a routine processing or booking is moot.


Conclusion
   A motel room, as used by law enforcement in this case—to carry out an
undercover investigation and to search a suspect incident to his arrest—is
not a place of detention as defined by Indiana Evidence Rule 617. We find
that the trial court did not err in admitting testimony about the statements
Fansler made after being duly advised of his Miranda rights. Accordingly,
we affirm the trial court’s conviction.


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



ATTORNEY FOR APPELLANT
Evan K. Hammond
Grant County Public Defender
Marion, Indiana

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

Eric P. Babbs
Stephen R. Creason


Indiana Supreme Court | Case No. 27S02-1710-CR-672 | June 21, 2018   Page 9 of 10
Ian McLean
Angela Sanchez
Deputy Attorneys General
Indianapolis, Indiana




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