Pursuant to Ind. Appellate Rule 65(D),

                                                               FILED
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                              Jan 18 2013, 8:29 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                           CLERK
law of the case.                                                  of the supreme court,
                                                                  court of appeals and
                                                                         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




                                      January 18, 2013



     MEMORANDUM DECISION ON REHEARING - NOT FOR PUBLICATION



ROBB, Chief Judge
       Danielle Kelly petitions for rehearing of this court’s opinion dated August 30,

2012, in which we addressed three issues on interlocutory appeal from the trial court’s

denial of Kelly’s motion to suppress: 1) whether a vehicle search violated the federal

constitution; 2) whether the search violated the state constitution; and 3) whether

incriminating statements she made to police at the scene should be suppressed; we held

the trial court did not err in any respect. Kelly v. State, 973 N.E.2d 110 (Ind. Ct. App.,

Aug. 30, 2012) (table). On rehearing, Kelly does not challenge our conclusions as to the

vehicle search, but contends we failed to consider a “dispositive fact” in our discussion

of the incriminating statements. Because this is an interlocutory appeal of a motion to

suppress and the issue is likely to arise again at trial, we grant rehearing to address

Kelly’s claim but reaffirm our opinion in all respects.

       We briefly recount the facts relevant to this issue: after Kelly’s vehicle, in which

she was a passenger, was stopped by police due to a tip that the driver was carrying

drugs, officers questioned Kelly for several minutes without first giving her Miranda

warnings. During this initial questioning, Kelly admitted she knew there were drugs in

the car. After she was advised of her Miranda rights, she repeated this admission. The

State charged Kelly with dealing in cocaine and possession of cocaine within 1,000 feet

of a public park or youth program center, both Class A felonies. Kelly filed a motion to

suppress, among other things, her incriminating statements, which the trial court denied.

       On appeal, Kelly claimed her post-Miranda statements should be suppressed

pursuant to Missouri v. Seibert, 542 U.S. 600 (2004). We held that because the pre-

Miranda questioning was brief and there was no indication the failure to give the

warnings initially was part of a concerted effort to obtain an unlawful confession, Seibert
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did not compel suppression of Kelly’s post-Miranda statements. Instead, we held this

case was more akin to the facts of Oregon v. Elstad, 470 U.S. 298 (1985), in which the

unwarned questioning was brief and the lack of warnings was an oversight. The

“dispositive fact” Kelly contends we failed to consider in our decision on this issue is

that during the post-Miranda questioning, the officers referenced her pre-Miranda

statements admitting knowledge of the cocaine.

       Admittedly, this case falls on a continuum somewhere between the facts of Elstad

and those of Seibert. Seibert specifically pointed out a “series of relevant facts” that bear

on whether mid-stream Miranda warnings can be effective:

       [T]he completeness and detail of the questions and answers in the first
       round of interrogation, the overlapping content of the two statements, the
       timing and setting of the first and the second, the continuity of police
       personnel, and the degree to which the interrogator’s questions treated the
       second round as continuous with the first.

542 U.S. at 615. In this case, the failure to warn appears inadvertent and the pre-warning

questioning was brief and broad, as in Elstad; but the post-warning questioning

continued immediately, in the same location, and by the same officer, as in Seibert.

And, as Kelly has pointed out, the officers did reference her pre-warning admission

during the post-warning questioning. Nonetheless, the Seibert decision was directed at

deliberate efforts to undermine the purpose of Miranda warnings and not at good faith

failures that pose no threat to warn-first practice generally.       Even considering the

officers’ reference to Kelly’s pre-warning statement, which we do not condone, we

continue to believe the immediate, unorganized questioning on the scene makes this case

more akin to Elstad, and reiterate that the trial court did not abuse its discretion in


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denying Kelly’s motion to suppress incriminating statements made post-warning. We

affirm our opinion in all respects.

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




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