MEMORANDUM DECISION
                                                                          FILED
Pursuant to Ind. Appellate Rule 65(D),                               Mar 31 2016, 8:26 am

this Memorandum Decision shall not be                                     CLERK
regarded as precedent or cited before any                             Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Gregory F. Zoeller                                       John L. Tompkins
Attorney General of Indiana                              Brown Tompkins Lory & Mastrian
                                                         Indianapolis, Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        March 31, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         49A05-1506-CR-752
        v.                                               Appeal from the Marion Superior
                                                         Court
David Brown,                                             The Honorable Steven Rubick,
Appellee-Defendant.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49F07-1307-CM-43945



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016          Page 1 of 12
                                        Statement of the Case
[1]   This appeal involves the State of Indiana’s attempt to appeal the trial court’s

      bench trial ruling that was made after the bench trial had begun and was then

      temporarily stayed in order to allow briefing on an evidentiary issue. The trial

      court’s ruling sustained David Brown’s (“Brown”) objection to the State’s

      evidence and excluded his statement made to a police officer during a sobriety

      checkpoint and apparently other evidence obtained following that statement.


[2]   Because the right of the State to bring an appeal in a criminal matter is

      specifically limited by statute to certain cases contained in INDIANA CODE § 35-

      38-4-2, we sua sponte review whether the State has statutory authority to bring

      this appeal. Due to the fact that this appeal stems from a ruling made as part of

      a bench trial that has been stayed and in which no verdict has been rendered, it

      does not fall under any of the statutory provisions. Thus, the State does not

      currently have statutory authority to appeal from this criminal matter, and we

      dismiss this appeal and remand to the trial court for further proceedings.


[3]   We dismiss and remand.1


                                                      Issue
              Whether the State has statutory authority to bring this appeal.




      1
       We dismiss the appeal without prejudice because, upon remand, the State may be able to appeal under one
      of the statutory provisions.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016         Page 2 of 12
                                                     Facts
[4]   In the early morning hours of July 5, 2013, the Indianapolis Metropolitan

      Police Department (“IMPD”) set up a sobriety checkpoint on South

      Pennsylvania Street to “apprehend impaired drivers.” (Tr. 18). At 2:18 a.m.,

      Brown, who was driving a motorcycle, entered the checkpoint and was directed

      to go to the checkpoint stopping area manned by IMPD Officer Christopher

      Winter (“Officer Winter”). The officer asked Brown if he had been drinking,

      and Brown admitted that he had. The officer administered some field sobriety

      tests and ultimately arrested Brown.


[5]   The State charged Brown with Class C misdemeanor operating while

      intoxicated2 and Class C misdemeanor operating a vehicle with an alcohol

      concentration equivalent to at least 0.08 but less than 0.15 grams of alcohol per

      210 liters of breath.3


[6]   The trial court commenced a bench trial on February 9, 2015. The State first

      presented testimony and evidence regarding the procedural nature and set up of

      the July 2013 sobriety checkpoint. During Officer Winter’s direct examination,

      he testified that when Brown pulled into his position at the sobriety checkpoint,

      he identified himself as a police officer, [a]dvised [Brown] of where he was[,]”

      and asked Brown for his license. (Tr. 35). The officer further testified that, as




      2
          IND. CODE § 9-30-5-2(a).
      3
          I.C. § 9-30-5-1(a).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 3 of 12
Brown reached for his license, he noticed that Brown “had a hard time pullin’ it

out.” (Tr. 35). Officer Winter then testified that he smelled the odor of alcohol

on Brown’s breath and noticed that Brown had “red watery eyes[,]” “poor

manual dexterity[,]” and “slightly slurred . . . speech when he was talkin’ to

[Officer Winter.]” (Tr. 35). When Officer Winter testified that Brown had

admitted that he had been drinking, Brown’s counsel requested to ask some

preliminary questions of the officer. The officer and Brown’s counsel then had

the following discussion:

        [Brown’s Counsel]: Um, did you ask Mr. Brown if he’d been
        drinking?

        Officer Winter: Yes, sir.

        [Brown’s Counsel]: Did you Mirandize him for . . . ?

        Officer Winter: No, sir.

        [Brown’s Counsel]: He wasn’t free to go when you asked him
        that question was he?

        Officer Winter: No.

        [Brown’s Counsel]: And you hadn’t pulled him over for [a]
        traffic infraction?

        Officer Winter: Correct.

        [Brown’s Counsel]: And you didn’t—you were detaining him as
        part of an investigation into possible impaired drivers?

        Officer Winter: Yes, sir.



Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 4 of 12
               [Brown’s Counsel]: And your question was related to an
               investigation of potential crime, potential O.W.I.?

               Officer Winter: Yes, sir.

      (Tr. 36). Brown’s counsel then objected to the officer’s testimony regarding his

      question to Brown and Brown’s response. His objection was based on the

      officer’s failure to advise Brown of his Miranda rights. Brown alleged that he

      was “not free to go” and that he was being “detained and . . . interrogated

      regarding the investigation of a potential crime.” (Tr. 37). The State argued

      that a Miranda warning was not necessary because “this checkpoint [wa]s

      analogous to a traffic stop” and that it was “not an interrogation in a custodial

      situation.” (Tr. 37). Brown’s counsel replied, “This [wa]sn’t a traffic stop.

      This [wa]s a detention unsupported by probable cause that [was] supposed to be

      random. The officer[] testified that at the point within the procedure where Mr.

      Brown was located, when the question was asked, he was not free to go. That’s

      custodial.” (Tr. 37). The trial court instructed the parties to “brief this issue”

      and agreed to “bifurcate” the trial.4 (Tr. 38). The trial court stated, “at this

      point if Miranda applies then the trial is over, and if it doesn’t then we’ll

      reconvene for evidence on another date.” (Tr. 38).


[7]   Thereafter, the State submitted its memorandum, arguing that the police were

      not required to advise Brown of his Miranda rights during the sobriety




      4
        Although the trial court stated that it was bifurcating the trial, it essentially stayed the proceedings pending
      a determination of Brown’s objection based on the Miranda issue.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016                  Page 5 of 12
      checkpoint because: (1) the sobriety checkpoint was the same as a traffic stop,

      which is considered non-custodial for Miranda purposes; (2) Brown was not in

      custody because he had not been formally arrested and had no restraint of his

      freedom of movement; and (3) the police officer’s questioning of Brown

      regarding a potential crime did not equate to a custodial interrogation.


[8]   In Brown’s memorandum on the Miranda issue, he cited State v. Gerschoffer, 763

      N.E.2d 960 (Ind. 2002), and argued that a sobriety checkpoint was not the

      equivalent of a traffic stop and that the caselaw on traffic stops was not

      applicable. He also argued that a Miranda warning was necessary because the

      facts surrounding the checkpoint showed that Brown was in custody and that

      the officer’s question regarding whether Brown had been drinking was an

      interrogation. He requested that the trial court “grant his motion to exclude all

      evidence obtained as a direct or indirect result of the un-Mirandized questioning

      that occurred during his detention at the July 5, 2013 sobriety checkpoint.”

      (App. 64).


[9]   On May 22, 2015, the trial court entered the following order sustaining Brown’s

      objection made during the bench trial:

              The Court, having received and reviewed the parties’ briefs and
              statements of authority, and having considered the evidence and
              argument presented at the February 19, 2015 trial and being duly
              advised in the premises, now FINDS that [Brown’s] sobriety
              checkpoint detention was not a typical traffic stop and [Brown]
              should have been given his Miranda warnings.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 6 of 12
                  Accordingly, [Brown’s] motion to suppress is GRANTED and
                  any statements by [Brown], as well as any evidence obtained
                  thereafter, are hereby suppressed and shall not be allowed at trial
                  ....

       (App. 66). The trial court then scheduled a status hearing for June 4, 2015.


[10]   In the meantime, on June 2, 2015, the State filed a motion to correct error,

       arguing that the sobriety checkpoint was similar to a traffic stop and did not

       require a Miranda warning. The State further argued that even if a Miranda

       warning were required, it would prevent the State from using only Brown’s

       statements made during the custodial interrogation and not physical evidence

       (such as field sobriety tests and Breathalyzer results) nor Officer Winter’s

       observations of signs of intoxication exhibited by Brown. Thereafter, the trial

       court held the scheduled status conference and also entered a general denial of

       the State’s motion to correct error.5 The State now attempts to appeal.


                                                     Decision
[11]   We cannot address the merits of the State’s appeal due to the unusual and

       uncertain procedural posture of this case. We must, instead, look at whether

       the State has statutory authority to bring this appeal.


[12]   The right of the State to bring an appeal from a criminal case is specifically

       limited by statute to certain cases contained in INDIANA CODE § 35-38-4-2.




       5
           The trial court handwrote “DENIED” on the State’s motion. (App. 67).


       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 7 of 12
       “Indiana has a strict historic precedent that criminal appeals by the State are

       statutorily defined.” State v. Brunner, 947 N.E.2d 411, 415 (Ind. 2011), reh’g

       denied. Indeed, our Courts “have long recognized this bedrock fundamental of

       criminal appellate law: the State must have statutory authorization to bring an

       appeal of a criminal matter.” Id. “The right of the State to appeal in a criminal

       matter is statutory, and the State cannot appeal unless given that statutory

       authorization by the legislature.” Id. “The reason for such a rigid appellate

       right for the State is built upon the idea that if the State brings a citizen before

       its own tribunal and loses, ‘its avenging hand should be stayed except in

       unusual cases where the power to appeal was expressly conferred.’” Id.

       (quoting State v. Sierp, 260 Ind. 57, 60, 292 N.E.2d 245, 246 (1973)).


[13]   INDIANA CODE § 35-38-4-2 sets out the specific instances under which the State

       may appeal a criminal matter, and, at the time that the trial court entered its

       order excluding evidence and its order denying the State’s motion to correct

       error, this statute provided that the State could appeal as follows:

               (1) From an order granting a motion to dismiss an indictment or
               information.

               (2) From an order or judgment for the defendant, upon his
               motion for discharge because of delay of his trial not caused by
               his act, or upon his plea of former jeopardy, presented and ruled
               upon prior to trial.

               (3) From an order granting a motion to correct errors.

               (4) Upon a question reserved by the state, if the defendant is
               acquitted.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 8 of 12
                  (5) From an order granting a motion to suppress evidence, if the
                  ultimate effect of the order is to preclude further prosecution.

                  (6) From any interlocutory order if the trial court certifies and the
                  court on appeal or a judge thereof finds on petition that:

                       (A) the appellant will suffer substantial expense, damage,
                       or injury if the order is erroneous and the determination
                       thereof is withheld until after judgment;

                       (B) the order involves a substantial question of law, the
                       early determination of which will promote a more orderly
                       disposition of the case; or

                       (C) the remedy by appeal after judgment is otherwise
                       inadequate.

       I.C. § 35-38-4-2.6


[14]   The State, however, has neither cited INDIANA CODE § 35-38-4-2 nor to the

       relevant statutory provision under which it is attempting to appeal. Instead, the

       State asserts that it “seeks this interlocutory appeal following the trial court’s

       Order granting Defendant’s Motion to Suppress Evidence.” (State’s Br. 1)

       (emphasis added).


[15]   As for the State’s contention that this is an interlocutory appeal, we cannot

       agree. Aside from the fact that the record contains no specific order from the

       trial court that it certified its ruling for interlocutory appeal, its ruling that the

       State seeks to appeal occurred as part of the bench trial that was stayed pending



       6
           This statute was subsequently amended with an effective date of July 1, 2015.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 9 of 12
       its decision concerning whether a Miranda warning was required at the sobriety

       checkpoint. Thus, the State is not appealing from an interlocutory order and

       cannot appeal based on INDIANA CODE § 35-38-4-2(6).


[16]   As far as the State’s suggestion that it is appealing from the denial of a motion

       to suppress, which would fall under INDIANA CODE § 35-38-4-2(5), we again

       disagree. The record is clear that Brown did not file a motion to suppress.

       Moreover, the trial court’s ruling at issue in this appeal stems from Brown’s

       objection to evidence introduced during a bench trial. This bench trial was

       stayed, and there is no indication in the record that the stay has been lifted or

       that a verdict or judgment has been rendered. Indeed, the chronological case

       summary reveals that the charges have not been dismissed and that the parties

       have continued to have status conferences.


[17]   We acknowledge that our supreme court has allowed a State’s appeal after it

       determined that the juvenile court order at issue was “better characterized as

       suppressing evidence” and where the “‘ultimate effect . . . [wa]s to preclude

       further prosecution.’” State v. I.T., 4 N.E.3d 1139, 1142 (Ind. 2014) (quoting

       I.C. § 35-38-4-2(5)) (involving a juvenile court’s order that disapproved a

       delinquency petition after determining that certain evidence was inadmissible).

       However, for the following reasons, we cannot consider the trial court’s ruling

       in this appeal to be a ruling granting a motion to suppress and available for a

       State’s appeal under subsection (5).




       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 10 of 12
[18]   First, the State does not assert that it is bringing this appeal pursuant to

       INDIANA CODE § 35-38-4-2(5), and, thus, has not asserted that the ultimate

       effect of the trial court’s order was to preclude further prosecution. See State v.

       Estep, 753 N.E.2d 22, 24 n.5 (Ind. Ct. App. 2001) (explaining that when the

       State initiates an appeal pursuant to INDIANA CODE § 35-38-4-2(5), it

       “represents” that the ultimate effect of the order granting a motion to suppress

       is to preclude further prosecution); State v. Aynes, 715 N.E.2d 945, 948 (Ind. Ct.

       App. 1999) (holding that the State’s initiation of an appeal from the denial of a

       motion to suppress “constitutes a ‘judicial admission’ that prosecution cannot

       proceed without the suppressed evidence”), reh’g denied. Here, the State argues

       that even if Brown’s statement should have been excluded based on the officer’s

       failure to give a Miranda warning, then remaining evidence should be

       admissible at trial.


[19]   The more important reason why we cannot consider this appeal as a motion to

       suppress under subsection (5) if that this appeal arose from a ruling made as

       part of a bench trial that had been stayed in order to deal with Brown’s

       evidentiary objection. “In a bench trial, jeopardy attaches when the court

       begins to hear evidence.” Emmons v. State, 847 N.E.2d 1035, 1037 (Ind. Ct.

       App. 2006) (citing Serfass v. United States, 420 U.S. 377, 388 (1975)).

       Additionally, “[u]nder Indiana statute, jeopardy will also attach in a bench trial

       when witnesses are sworn.” Id. (citing I.C. § 35-41-4-3(a)(2)). Here, the State

       has already brought Brown to trial, where the trial court ultimately stayed the

       proceedings. The trial court needs to decide whether to lift the stay and proceed


       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 11 of 12
       with the remainder of the bench trial with whatever admissible evidence it

       determines the State has or to take whatever action it deems appropriate.7

       Thereafter, the State could potentially bring an appeal if such appeal would fall

       under one of the specific instances set out in INDIANA CODE § 35-38-4-2.


[20]   Given the state of procedural limbo associated with this case and the lack of

       statutory authority to appeal, we must dismiss and remand to the trial court for

       further proceedings.


[21]   Dismissed and remanded.


       Baker, J., and Bradford, J., concur.




       7
           We make no suggestion as to what the appropriate action would be.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1506-CR-752 | March 31, 2016   Page 12 of 12
