                                                             FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                            Aug 30 2012, 9:50 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                         CLERK
                                                                of the supreme court,
                                                                court of appeals and
law of the case.                                                       tax court




ATTORNEYS FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JAMES W. MCNEW                                   GREGORY F. ZOELLER
JON A. KEYES                                     Attorney General of Indiana
Allen Wellman McNew
Greenfield, Indiana                              J.T. WHITEHEAD
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DANIELLE KELLY,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 30A01-1112-CR-584
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE HANCOCK CIRCUIT COURT
                         The Honorable Richard D. Culver, Judge
                             Cause No. 30C01-1009-FA-209




                                      August 30, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issues

       Danielle Kelly was charged with dealing in cocaine and possession of cocaine

within 1,000 feet of a public park or youth program center, both Class A felonies,

following a search of a vehicle in which Kelly was a passenger. Kelly brings this

interlocutory appeal of the trial court’s denial of her motion to suppress, raising the

following issues for our review: 1) whether the search of the vehicle violated the Fourth

Amendment to the United States Constitution; 2) whether the search violated Article 1,

Section 11 of the Indiana Constitution; and 3) whether incriminating statements Kelly

made to police officers should be suppressed. Concluding the search and seizure did not

violate either the federal or state constitutions and Kelly’s post-Miranda statements are

admissible, we affirm the trial court’s denial of her motion to suppress.

                               Facts and Procedural History

       On September 15, 2010, Sergeant Michael Fuller with the Fortville Police

Department responded to a call from Carolyn Goodwin who was known to Sergeant

Fuller because she had previously been the victim of a crime. Although she had on

occasion contacted police to report various crimes, she had never been used as a

confidential informant by police. Sergeant Fuller went to Goodwin’s home where she

told him that, “to help clean up her community,” transcript at 10, she had arranged for an

Indianapolis dealer who had sold cocaine to her friends in and around Fortville to bring

cocaine to her house, but that she was afraid of what would happen when he arrived and

she had no money to purchase the cocaine. She feared he might have a weapon. She

expected the dealer, who she described only as an African American man, to arrive

within fifteen minutes. While Sergeant Fuller was at Goodwin’s home, she received
                                             2
several phone calls. From overhearing Goodwin’s part of the conversations, it was

apparent to Sergeant Fuller that the male caller was seeking directions to her house.

Sergeant Fuller requested assistance from officers in his department. A vehicle arrived at

Goodwin’s home within the approximate time frame Goodwin had stated the dealer was

expected. Police met the vehicle, driven by an African American man and carrying a

passenger, with their guns drawn.       Both the driver and Kelly, the passenger, were

immediately ordered out of the vehicle and handcuffed. The vehicle was Kelly’s; the

driver was her cousin.      While they were being interviewed, officers conducted an

inventory search of the vehicle prior to impounding it. During the inventory search, they

discovered cocaine in a hollowed-out screwdriver. During the police interview of Kelly,

she was asked if she knew about the cocaine in the car and admitted that she did. After

she made this statement, Kelly was advised of her Miranda rights. She subsequently

repeated her admission that she was aware of the cocaine.

       The State charged Kelly with dealing in cocaine within one thousand feet of a

public park or youth program center and possession of cocaine in an amount greater than

three grams within one thousand feet of a public park or youth program center, both Class

A felonies. Kelly filed a motion to suppress evidence of the cocaine found in the search

of the vehicle as well as her incriminating statements, alleging both were obtained in

violation of the state and federal constitutions. Following a hearing and supplemental

briefing, the trial court entered the following order:

             This matter was submitted to the Court on the issue of the
       Defendant’s Motion to Suppress Evidence. And the Court, after being duly
       advised in the premises, finds that said Motion should be granted in part
       and denied in part. The Court denies the [D]efendant’s Motion to Suppress
       Evidence with exception of statements by Danielle Kelly after she was
                                              3
       handcuffed and prior to the Miranda warnings. Subsequent statements,
       after being Mirandized, are not suppressed.

Appellant’s Appendix at 72. Kelly sought and was granted certification of the trial

court’s order, and this court accepted jurisdiction of her interlocutory appeal.

                                 Discussion and Decision

                                   I. Standard of Review

       We review the denial of a motion to suppress “in a manner similar to other

sufficiency matters. We do not reweigh the evidence, and we consider conflicting

evidence most favorable to the ruling. Unlike typical sufficiency reviews, however, we

will consider not only the evidence favorable to the ruling but also the uncontested

evidence favorable to the defendant.” Gunn v. State, 956 N.E.2d 136, 138 (Ind. Ct. App.

2011). We review de novo a ruling on the constitutionality of a search or seizure, but we

give deference to a trial court’s determination of the facts, which will not be overturned

unless clearly erroneous. Campos v. State, 885 N.E.2d 590, 596 (Ind. 2008).

                                   II. Search and Seizure

                                  A. Fourth Amendment

                                     1. Probable Cause

       Kelly first contends the trial court erred in denying her motion to suppress because

the warrantless seizure of herself and her vehicle violated the Fourth Amendment to the

United States Constitution. The Fourth Amendment provides in relevant part, “The right

of people to be secure in their persons, houses, papers, and effects against unreasonable

searches and seizures, shall not be violated[.]” A lawful search generally requires a

judicially-issued search warrant. Wilson v. State, 966 N.E.2d 1259, 1263 (Ind. Ct. App.

                                              4
2012), trans. denied.    Warrantless searches are per se unreasonable, and the State

therefore bears the burden of establishing that a warrantless search falls within one of the

recognized exceptions to the warrant requirement. Id.

       There are three levels of police investigation, two of which implicate the Fourth

Amendment. An arrest or detention for more than a short period must be justified by

probable cause. Overstreet v. State, 724 N.E.2d 661, 663 (Ind. Ct. App. 2000), trans.

denied. Probable cause to arrest exists where the facts and circumstances within the

knowledge of the officers are sufficient to warrant a belief by a person of reasonable

caution that an offense has been committed and that the person to be arrested has

committed it.     Id. (citing Brinegar v. United States, 338 U.S. 160, 175-76 (1949)).

Second, it is well-settled Fourth Amendment jurisprudence that police may, without a

warrant or probable cause, briefly detain an individual for investigatory purposes if,

based on specific and articulable facts, the officer has a reasonable suspicion that criminal

activity “may be afoot.”       Id. (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).

Accordingly, limited investigatory stops and seizures on the street involving a brief

question or two and a possible frisk for weapons can be justified by mere reasonable

suspicion. Id. When a law enforcement officer makes a casual and brief inquiry of a

citizen which involves neither an arrest nor a stop, the Fourth Amendment is not

implicated. Id.

       Here, Kelly was ordered out of the car by officers with guns drawn and

immediately handcuffed when the vehicle in which she was a passenger arrived at

Goodwin’s house. See Tr. at 19 (Chief Kiphart testifying, after being asked what steps he

took after the car pulled up, “we had weapons out ordered them out of the vehicle. . . .
                                             5
[O]nce we secured them . . . I started . . . speaking with Ms. Kelly.”). This was not a

“casual or brief inquiry,” nor was it a “limited investigatory stop[] . . . involving a brief

question or two.” Kelly was seized when her freedom of movement was restrained by a

show of authority immediately upon her arrival. Woodson v. State, 966 N.E.2d 135, 139

(Ind. Ct. App. 2012), trans. denied. Therefore, her detention and the ensuing search must

be supported by probable cause and authorized by one of the recognized exceptions to the

warrant requirement.

       The pertinent inquiry regarding probable cause is whether the facts and

circumstances at the time of the arrest would lead a reasonably prudent person to believe

the suspect is committing or had committed a crime. Conwell v. State, 714 N.E.2d 764,

766-67 (Ind. Ct. App. 1999). The action here was precipitated by Goodwin’s call to

police. In Pawloski v. State, 269 Ind. 350, 380 N.E.2d 1230 (1978), our supreme court

considered whether probable cause for an arrest existed on the basis of a tip to police.

The court first noted that an informant’s reliability must be established before a finding of

probable cause can be made. Id. at 353, 380 N.E.2d at 1232. There are two categories of

informants: professional informants or anonymous tipsters and concerned or cooperative

citizens. Id. at 354, 380 N.E.2d at 1232. The reliability of professional informants or

anonymous tipsters “must be established by reference to underlying facts and

circumstances which indicate that the information is trustworthy . . . because information

of this type may be unreliable or self-serving . . . .” Id. When a citizen volunteers

information to the police, there may be more reason to believe that the information is

reliable because informants who come forward voluntarily are ordinarily motivated by

good citizenship or a genuine effort to aid law enforcement officers in solving a crime.
                                             6
Id. The court noted that “[s]ome jurisdictions have therefore held that informants of this

type are to be considered reliable for the purpose of determining probable cause unless

incriminating circumstances exist which cast suspicion upon the informant’s reliability.”

Id. at 354, 380 N.E.2d at 1232-33. Even information volunteered by a citizen requires

some corroboration, however. Id. at 355, 380 N.E.2d at 1233. The information in

Pawloski was given to police in person by an acquaintance of the defendant to whom the

defendant had confessed setting fire to an apartment. The court held the police had

sufficient probable cause to order the defendant’s arrest because the tipster testified he

felt compelled to come forward with information to assist the police “even though it acted

to incriminate and betray the confidence of a friend [and] there were no circumstances

which would have placed [his] reliability . . . in question.” Id.

       In Kellems v. State, 842 N.E.2d 352 (Ind. 2006), however, the court determined

Pawloski “goes a bit too far.” Id. at 356. Although continuing to believe there may be

greater indicia of reliability in a concerned citizen’s report to police versus a report by a

professional informant, “this goes only to reasonable suspicion, not, as the prior cases

suggest, probable cause.” Id. Police received a telephone call from a woman who

identified herself and reported seeing the defendant, who had no license or insurance,

driving intoxicated and with children in his vehicle. She described the vehicle and

provided the license plate number. An officer spotted a vehicle matching the description,

confirmed the license plate information, and initiated a traffic stop without observing any

traffic violations.   The officer requested the defendant’s driver’s license, but the

defendant had only an identification card because he was an habitual traffic offender and

his license was suspended. A portable breath test was negative. The defendant was
                                              7
charged with operating a vehicle while an habitual traffic offender.         He moved to

suppress evidence gathered during the traffic stop, arguing the tip was insufficient to

provide police with reasonable suspicion. His motion was denied and he was found

guilty as charged.

       On appeal, our supreme court affirmed “[b]ecause a tip from an identified

informant or concerned citizen coupled with some corroborative police investigation is

sufficient to create reasonable suspicion for an investigative stop . . . .” Id. at 353.

Specifically, the court pointed out the caller identified herself by name and birthdate and

the officer who conducted the stop knew her and where and with whom she lived, so that

she could be identified and held criminally responsible if she had knowingly given police

a false report.      Id. at 356.   The court also noted that the caller offered sufficient

information to allow police to corroborate her assertions: the description of the vehicle

and the direction in which it was traveling, the license plate number, the name of the

driver, and that there were children in the car, all of which the police were able to

confirm prior to or immediately upon conducting the investigatory stop. Id. Finally, the

court noted that the caller met the requirements for being classified as a concerned or

cooperative citizen because the record did not suggest incriminating circumstances that

would indicate her motive in calling was anything other than to assist police. Id. at 357.

       As a “concerned citizen,” Goodwin called the Fortville Police Department and

reported that a man would arrive at her house in approximately fifteen minutes to sell her

cocaine. Because she had arranged the deal herself, she had personal knowledge of the

transaction she was reporting. Sergeant Fuller knew Goodwin because she was a prior

crime victim, and he had no reason to believe that she was not telling the truth. Sergeant
                                              8
Fuller went to Goodwin’s house, thereby meeting her face-to-face and not relying on self-

identification over the phone to verify her identity as the tipster. Goodwin indicated she

knew of the dealer because “he had been selling cocaine to several of her friends . . . and

she was tired of seeing it and . . . she had gotten [his] phone number from another . . .

user that he was selling to.” Tr. at 11. While at Goodwin’s house, Goodwin received

three or four phone calls from which it was clear Goodwin was giving someone

directions to her house. A car arrived at Goodwin’s house within the time frame she had

indicated she was anticipating the dealer and Goodwin advised Sergeant Fuller that “he’s

here.”    Id.   Sergeant Fuller acknowledged Goodwin did not give him a name or

description of the dealer or a description of the car, and that she was known to drink

alcohol daily, although he did not “remember her being intoxicated” during his contact

with her. Tr. at 14.

         The information Goodwin provided was not as specific as that provided by the

tipster in Kellems, given that Goodwin provided only a bare minimum description of the

dealer as African American and did not describe the vehicle at all, but Sergeant Fuller

actually met with Goodwin as opposed to merely taking a report over the phone as in

Kellems. In a face-to-face encounter, “a trained officer has the opportunity to assess

credibility and motive by observing facial expressions and subtle body language.” State

v. Glass, 769 N.E.2d 639, 643 (Ind. Ct. App. 2002), trans. denied. Goodwin received

several phone calls in Sergeant Fuller’s presence, and from what he could hear of the

conversation, it was clear that the male caller was seeking directions to her house. A

vehicle arrived at Goodwin’s house within the time frame she said the dealer was

expected, and Sergeant Fuller was able to gauge her reaction to its arrival. Moreover,
                                            9
Goodwin was not merely susceptible to prosecution for false reporting, she was

susceptible to prosecution for involvement in a drug deal by calling police. Under the

totality of the circumstances, we conclude there was probable cause to support the

seizure.

                              2. Warrantless Vehicle Search

       To dispense with procuring a search warrant, the State must demonstrate both

probable cause and an exception to the warrant requirement. The “automobile exception”

to the warrant requirement is applicable “when a vehicle is readily mobile and there is

probable cause to believe it contains contraband or evidence of a crime.” Meister v.

State, 933 N.E.2d 875, 878-79 (Ind. 2010) (citing Maryland v. Dyson, 527 U.S. 465, 467

(1999)). When there is probable cause that a vehicle contains evidence of a crime, a

warrantless search of the vehicle does not violate the Fourth Amendment because exigent

circumstances exist arising out of the likely disappearance of the vehicle. Id. at 879

(citing California v. Acevedo, 500 U.S. 565, 569 (1991)). In Myers v. State, 839 N.E.2d

1146 (Ind. 2005), our supreme court held that the automobile exception to the warrant

requirement “does not require any additional consideration of the likelihood, under the

circumstances, of the vehicle being driven away.” Id. at 1152. Rather, “the ‘ready

mobility’ requirement of the automobile exception . . . mean[s] that all operational, or

potentially operational, motor vehicles are inherently mobile . . . .” Id.

       There is no dispute that the vehicle was operational; officers observed the vehicle

pull into the parking area at Goodwin’s home. The vehicle was therefore readily mobile

for purposes of the automobile exception and no separate exigent circumstances had to be

shown. Having already determined that probable cause existed, the warrantless search of
                                             10
the vehicle was authorized by its ready mobility. See Meister, 933 N.E.2d at 880 (noting

the dearth of exigent circumstances where the driver was secured by police and there was

no threat of imminent destruction of evidence inside the vehicle because it was in police

control, but holding probable cause and ready mobility justified warrantless search). The

Fourth Amendment does not prohibit the search and the trial court did not clearly err in

denying Kelly’s motion to suppress evidence found in the warrantless search of the

vehicle.

                                 B. Article 1, Section 11

       Kelly also contends the warrantless search and seizure was in violation of Article

1, Section 11 of the Indiana Constitution. Like the Fourth Amendment, Section 11

affords individuals protection from unreasonable searches and seizures. Although the

text of the two provisions is virtually identical, we interpret and apply Section 11

independently. McLain v. State, 963 N.E.2d 662, 668 (Ind. Ct. App. 2012), trans. denied.

       The legality of a governmental search under the Indiana Constitution turns
       on an evaluation of the reasonableness of the police conduct under the
       totality of the circumstances. The totality of the circumstances requires
       consideration of both the degree of intrusion into the subject’s ordinary
       activities and the basis upon which the officer selected the subject of the
       search or seizure. Although there may be other relevant considerations
       under the circumstances, the reasonableness of a search or seizure turns on
       a balance of: 1) the degree of concern, suspicion, or knowledge that a
       violation has occurred, 2) the degree of intrusion the method of the search
       or seizure imposes on the citizen’s ordinary activities, and 3) the extent of
       law enforcement needs.

Cochran v. State, 843 N.E.2d 980, 985 (Ind. Ct. App. 2006) (citations and quotation

marks omitted), trans. denied.

       The degree of concern, suspicion, or knowledge that a violation has occurred was

high in this case, as we have already determined above that probable cause existed that
                                            11
drugs were being transported for sale. The degree of intrusion was, as Kelly contends,

great, as police ordered her out of the vehicle with their guns drawn and she was

immediately handcuffed. The extent of law enforcement needs, contrary to Kelly’s

assertions, however, was also great. Kelly asserts that because it was apparent the dealer

did not know how to get to Goodwin’s home, Sergeant Fuller could have sought a

warrant or further investigated her claims instead of letting Goodwin direct him to her

house.    That course of action, however, would have created the risk of the dealer

becoming frustrated or suspicious and going home or going elsewhere to sell the drugs.

Moreover, the fact that there is another, or possibly better, course of action for

conducting the investigation does not mean that the course of action police undertook is

unlawful. There was probable cause that a person in possession of drugs was imminently

expected at Goodwin’s home, and the totality of the circumstances indicates the police

action was reasonable. The trial court did not clearly err in denying Kelly’s motion to

suppress on this basis.

                              III. Incriminating Statements

         Finally, Kelly contends her statements to officers after being seized

acknowledging she knew there were drugs in the car should be suppressed because the

officers violated the Fifth Amendment to the United States Constitution and Article 1,

Section 14 of the Indiana Constitution.

         The Fifth Amendment provides that no person shall be compelled to be a witness

against himself in a criminal case. To protect the privilege against self-incrimination, a

person who is subject to custodial interrogation must be advised of her rights to remain

silent and to have an attorney present, and be warned that any statement she makes may
                                           12
be used as evidence against her. Miranda v. Arizona, 384 U.S. 436, 444 (1966) (“[T]he

prosecution may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.”). As stated above,

Kelly was immediately removed from the vehicle and handcuffed upon arriving at

Goodwin’s home. Therefore, Kelly was in custody and subject to custodial interrogation.

See Kelley v. State, 825 N.E.2d 420, 427 (Ind. Ct. App. 2005) (“Custodial interrogation

is questioning initiated by law enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom in any significant way.”) (quotation and

citation omitted). Chief Kiphart began questioning Kelly without advising her of her

rights and elicited incriminating statements. Within minutes thereafter, Chief Kiphart did

advise Kelly of her rights, after which she made further incriminating statements. The

trial court found that her initial statements should be suppressed, but that the statements

she made after the advisement would be allowed. Kelly contends all of her statements

should be suppressed.

       In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court disapproved of an

interrogation technique in which law enforcement officers purposefully do not give

Miranda warnings until after an interrogation is underway and a confession procured, and

then give Miranda warnings and secure a waiver of rights before obtaining a second

confession. Id. at 611-14. In that case, the defendant was questioned for thirty or forty

minutes about a fire-related death, with the officer “follow[ing] instructions . . . that he

refrain from giving Miranda warnings” before the interrogation. Id. at 604. During this

interrogation, the defendant admitted the fire was not accidental. After a twenty-minute
                                            13
break, the defendant was given Miranda warnings and questioned further in relation to

her earlier admission. The Court observed that “when Miranda warnings are inserted in

the midst of coordinated and continuing interrogation, they are likely to mislead and

depriv[e] a defendant of knowledge essential to his ability to understand the nature of his

rights and the consequences of abandoning them.” Id. at 613-14 (quotation omitted,

alteration in original). In doing so, the Court contrasted the deliberate nature of the

Miranda omission in this case with the facts of Oregon v. Elstad, 470 U.S. 298 (1985). In

Elstad, officers went to a young suspect’s home to take him into custody, and while one

officer spoke briefly with the suspect’s mother, the other told the suspect he “felt” he was

involved in a burglary, and the suspect acknowledged he had been at the scene. Id. at

301. The suspect was then taken to the police station, where he was given Miranda

warnings before an interrogation during which the suspect made a full confession. The

Court held the second statement was admissible and voluntary, calling the officer’s initial

failure an “oversight” and noting the incident had “none of the earmarks of coercion.” Id.

at 315-16.

       The facts of this case are more akin to Elstad than Seibert.          Chief Kiphart

questioned Kelly for only two or three minutes before giving her Miranda warnings.

There is no indication that Chief Kiphart purposefully withheld Miranda warnings as part

of an intentional “question first” technique to obtain a confession. The cases cited by

Kelly in support of suppressing her post-Miranda statements involve lengthy initial

interrogations. See Morris v. State, 871 N.E.2d 1011 (Ind. Ct. App. 2007) (defendant

interviewed repeatedly at police station over a period of at least four hours prior to

Miranda warnings), trans. denied; Payne v. State, 854 N.E.2d 7 (Ind. Ct. App. 2006)
                                            14
(defendant questioned for seven hours without Miranda warnings); Drummond v. State,

831 N.E.2d 781 (Ind. Ct. App. 2005) (defendant interrogated for two hours before

Miranda warnings were given). Here, the entire questioning at the scene lasted less than

half an hour. The initial questioning lasted but a few minutes before Kelly was given a

Miranda advisement. Under these circumstances, we hold Seibert does not mandate the

suppression of Kelly’s post-Miranda statements, and the trial court did not clearly err in

denying her motion to suppress as to those statements.

                                       Conclusion

       Neither the Fourth Amendment nor Article 1, Section 11 prohibit the warrantless

search and seizure of Kelly and her vehicle, and the trial court did not err in denying her

motion to suppress evidence discovered as a result. Kelly’s post-Miranda statements are

admissible and the trial court did not err in denying her motion to suppress as to those

statements. The trial court’s order is affirmed, and this case is remanded for further

proceedings.

       Affirmed.

BAILEY, J., and MATHIAS, J., concur.




                                            15
