MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                          Feb 09 2018, 11:00 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                       Curtis T. Hill, Jr.
Oldenburg, Indiana                                       Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christian Hicks,                                         February 9, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1708-CR-1796
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G10-1704-CM-13966



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018      Page 1 of 8
                                          Case Summary
[1]   Christian Hicks (“Hicks”) appeals his conviction, following a bench trial, for

      possession of marijuana, as a Class B misdemeanor. 1 The sole issue he raises

      on appeal is whether the trial court erred in denying his motion to suppress on

      the grounds that the police failed to advise him of his rights under Pirtle before

      obtaining his consent to search his backpack.


[2]   We affirm.



                               Facts and Procedural History
[3]   At approximately 1:20 a.m. on April 16, 2017, Officer Daniel Birt (“Officer

      Birt”) with the Butler University Police Department was on patrol when he

      received a dispatch about a “suspicious … black male with dreadlocks, gray

      shirt, blue jeans on a bicycle looking in vehicles.” Tr. at 4. The caller who

      reported the suspicious activity stated that he saw the suspect “up around his

      garage[,]” “north on Boulevard [Place].” Id. at 4 - 5. Four law enforcement

      units, including Officer Birt, began looking for the suspect. When Officer Birt

      drove to the location, he saw a man later identified as Hicks heading north on

      Boulevard Place. Hicks wore a gray shirt, blue jeans, and was on a bicycle, thus

      matching the description of the suspect.




      1
          Ind. Code § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018   Page 2 of 8
[4]   When Officer Birt proceeded closer, he observed that the bicycle Hicks was

      riding did not have a rear taillight or a headlight. Officer Birt decided to

      conduct a stop of Hicks based on those infractions and also because he was “a

      suspect for … possible vehicle break-ins.” Id. at 5. Officer Birt activated the

      emergency lights of his marked police car and pulled up in front of Hicks. He

      then exited his vehicle and asked Hicks to stop. Three other officers soon

      arrived at the scene in two additional police vehicles with emergency lights

      activated. Officer Birt then approached Hicks and asked him for his

      identification. Hicks did not have any identification but verbally identified

      himself by providing his name and date of birth.


[5]   Officer Birt radioed the information he received from Hicks to dispatch, and

      dispatch informed him that “there was a possible warrant hit” for Hicks. Id. at

      6. Officer Birt then asked Hicks for his social security number, which Hicks

      provided and which Officer Birt relayed to dispatch. While waiting for

      confirmation from dispatch of a warrant on Hicks, Officer Birt observed that

      Hicks was wearing a backpack and asked him if he could search it. Hicks

      handed his backpack to Officer Birt, who placed it on the hood of his vehicle

      and searched it. Inside the backpack, Officer Birt found a metal tin containing

      a baggie with 9.29 grams of marijuana, a silver grinder, a small spoon, a stone

      pipe, lighters, and papers.


[6]   Immediately after Officer Birt found the items in Hicks’ backpack, dispatch

      confirmed that there was a warrant for Hicks’ arrest out of Hendricks County.

      Approximately ten to fifteen minutes passed from the time the officer provided

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018   Page 3 of 8
      dispatch with Hicks’ social security number and the time dispatch confirmed

      the warrant. Officer Birt then handcuffed Hicks and placed him into his patrol

      vehicle.


[7]   The State charged Hicks with possession of marijuana, as a Class B

      misdemeanor, and possession of paraphernalia, as a Class C misdemeanor.2

      Hicks’ had a bench trial on July 17, 2017 at which he moved to suppress “any

      contents of the search of [his] backpack as he was in police custody and was not

      advised of his Pirtle rights before being asked to consent to the search of the

      backpack which would be in violation of Article One, Section 11 of the Indiana

      Constitution.” Tr. at 9-10. The trial court denied Hicks’ motion, and Hicks

      lodged a continuing objection. The court found Hicks guilty of Class B

      misdemeanor possession of marijuana, and it dismissed the Class C

      misdemeanor possession of paraphernalia upon Hicks’ Trial Rule 41(b) motion.

      The court sentenced Hicks to 180 days in the county jail, with 174 days

      suspended and credit time of six days. This appeal ensued.



                                      Discussion and Decision
[8]   Hicks appeals the denial of his motion to suppress the evidence obtained in the

      search of his backpack. A trial court has broad discretion to rule on the

      admissibility of evidence. Thomas v. State, 81 N.E.3d 621, 624 (Ind. 2017).




      2
          I.C. § 35-48-4-8.3(b)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018   Page 4 of 8
      Generally, evidentiary rulings are reviewed for an abuse of discretion and

      reversed when admission is clearly against the logic and effect of the facts and

      circumstances. Id. However, when a challenge to an evidentiary ruling is

      predicated on the constitutionality of a search or seizure of evidence, it raises a

      question of law that is reviewed de novo. Id. The State has the burden to

      demonstrate that the measures it used to seize information or evidence were

      constitutional. State v. Rager, 883 N.E.2d 136, 139 (Ind. Ct. App. 2008).


[9]   Hicks contends that the search of his backpack violated his rights under Article

      1, Section 11 of the Indiana Constitution because Officer Birt did not advise

      him of his Pirtle rights prior to obtaining his consent to the search. In Pirtle v.

      State, 323 N.E.2d 634, 640 (Ind. 1975), our Supreme Court held that, under

      Article 1, Section 11, “a person who is asked to give consent to search while in

      police custody is entitled to the presence and advice of counsel prior to making

      the decision whether to give such consent.” 3 It is undisputed that Officer Birt

      did not advise Hicks of his Pirtle (or Miranda) rights prior to obtaining his

      consent to search the backpack. Therefore, whether the evidence must be

      suppressed depends upon whether Hicks was “in custody” at the time the

      officer requested his consent to search.




      3
        As Hicks acknowledges, there is no federal constitutional right to counsel before consenting to a search,
      even if the suspect is in custody. See United States v. Lagrone, 43 F.3d 332, 337 (7th Cir. 1994).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018            Page 5 of 8
[10]   Our Supreme Court has explained the distinction between custodial encounters,

       where Pirtle applies, and non-custodial encounters, where it does not. In

       making this distinction,


               the “ultimate inquiry” is whether there was a “formal arrest” or a
               “ ‘restraint on freedom of movement’ of the degree associated
               with a formal arrest.” Luna v. State, 788 N.E.2d 832, 833 (Ind.
               2003) (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.
               Ct. 3517, 3520, 77 L.Ed.2d 1275, 1279 (1983)). In answering this
               question, courts consider all circumstances surrounding the
               encounter and “largely appl[y] an objective test asking whether a
               reasonable person under the same circumstances would believe
               that she was under arrest or not free to resist the entreaties of the
               police.” Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995).


       Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009). And, although a person who

       is stopped by the police for investigation of a traffic violation is “seized” and

       momentarily not free to go, ordinarily that does not constitute “custody” for

       purposes of Pirtle. Id.


[11]   Thus, a Pirtle advisement is not required in an ordinary investigative detention,

       but is required in “full-blown custodial interrogations.” Id. For the latter,

       courts look at whether there are circumstances showing “objectively

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

       demonstrate a degree associated with a formal arrest.” Id. at 873-74 (quotation

       and citation omitted).


               A non-exhaustive list of relevant factors our cases have identified
               [to make such a determination] includes: whether the defendant
               was read his Miranda rights, handcuffed, restrained in any way,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018   Page 6 of 8
               or told that he was a suspect in a crime, e.g., Torres v. State, 673
               N.E.2d 472, 474 (Ind. 1996); how vigorous was the law
               enforcement interrogation, e.g., Sellmer v. State, 842 N.E.2d 358,
               363–65 (Ind. 2006); whether police suggested the defendant
               should cooperate, implied adverse consequences for
               noncooperation, or suggested that the defendant was not free to
               go about his business, e.g., id.; Clarke[ v. State], 868 N.E.2d [1114,]
               1120–21 [(Ind. 2007)]; and the length of the detention, e.g., Cooley
               v. State, 682 N.E.2d 1277, 1279 (Ind. 1997).


       Id. at 874.


[12]   Here, the evidence shows nothing more than an ordinary investigative

       detention of Hicks. Officer Birt stopped him for a traffic infraction and because

       he met the description of a person suspected of vehicle break-ins. He asked

       Hicks for his identification, called that information in to dispatch, and waited to

       see if Hicks had any outstanding warrants. All of that activity is incident to

       normal traffic stops. Id. at 873. Moreover, Hicks was not Mirandized, nor was

       he handcuffed or otherwise physically restrained at the time of the request for

       consent. The officers did not: tell Hicks he was a suspect in a crime; interrogate

       him; question him regarding drugs; or suggest that he should cooperate or

       imply adverse consequences if he did not consent to a search. Cf. Sellmer, 842

       N.E.2d at 364-65 (holding defendant was in custody for purposes of Pirtle where

       the police asked to search the car three to five times before obtaining her

       consent; police “came extremely close” to asking incriminating questions; and

       police informed defendant it was “in [her] best interest” to cooperate when she

       asked if she was required to let them search the car). The officers simply asked


       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018   Page 7 of 8
       Hicks for his identification and “[stood] around waiting” for the confirmation

       on the warrant until Officer Birt asked for consent to search the backpack. Tr.

       at 7. And the duration of the detention was not unusually lengthy. Thus,

       although Hicks was detained pursuant to an investigatory stop, he was not in

       custody for purposes of Pirtle. The trial court did not err in denying the motion

       to suppress.


[13]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1708-CR-1796 | February 9, 2018   Page 8 of 8
