                                                                         FILED
                                                                     Apr 03 2020, 8:45 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Phyllis J. Emerick                                          Curtis T. Hill, Jr.
Bloomington, Indiana                                        Attorney General of Indiana
                                                            Ian McLean
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Tony Bethel Atkins,                                         April 3, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-951
        v.                                                  Appeal from the Monroe Circuit
                                                            Court
State of Indiana,                                           The Honorable Mary Ellen
Appellee-Plaintiff.                                         Diekhoff, Judge
                                                            Trial Court Cause No.
                                                            53C05-1710-F1-1100



Tavitas, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020                             Page 1 of 20
                                               Case Summary
[1]   Tony Atkins appeals the trial court’s grant of the State’s motion to correct error

      regarding the trial court’s earlier grant of Atkins’ motion to suppress. 1 We

      reverse and remand.


                                                       Issues
[2]   Atkins raises two issues, which we revise and restate as:


              I.       Whether Atkins was in custody during the search of his
                       backpack and questioning.

              II.      Whether the search of Atkins’ backpack violated his rights
                       under the Indiana Constitution.

              III.     Whether the questioning of Atkins violated his rights under
                       the United States Constitution.

                                                        Facts
[3]   On the evening of October 12, 2017, at 7:45 p.m., Darren Hsu and Mark

      Lambert reported to the Bloomington Police Department that two men with

      handguns entered their apartment and demanded marijuana. The men beat

      Lambert until he was unconscious and stole marijuana and electronics,

      including four laptops. Hsu reported that, earlier in the evening, “G” stopped

      by the apartment to purchase marijuana and behaved oddly. Hsu and Lambert

      knew “G” through Ricky Spence.




      1
        We held oral argument in this case on March 10, 2020, at Purdue University Northwest. We thank counsel
      for their advocacy and extend our appreciation to Purdue University Northwest for its hospitality.

      Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020                            Page 2 of 20
[4]   The officers located Spence, and Spence reported that “G” was Glenn Williams

      and that Williams lived at the Town and Country Apartments. Spence reported

      that Williams’ cousin, Atkins, was in town from Indianapolis and was with

      Williams on that day. At approximately 10:00 p.m., Detectives Jacob Hunter,

      Josh Taylor, and Baker 2 went to the apartment complex and located a vehicle

      with a license plate number that was registered to “Williams.” The officers

      then observed two men leaving an apartment building and approached them.

      When questioned, the two men identified themselves as Williams and Atkins.


[5]   Other uniformed officers arrived on the scene. Detective Hunter and Officer

      Fabris 3 were wearing body cameras, which captured the following events.

      Officers separated the two men, and Detective Hunter began talking to Atkins.

      Detective Hunter searched Atkins’ person for weapons and found no weapons.

      Detective Hunter informed Atkins that they were investigating a burglary and

      that Atkins’ “name was put out there.” State’s Ex. A. Atkins claimed that he

      had just arrived in Bloomington twenty minutes earlier from Indianapolis.


[6]   Atkins was carrying a backpack, and Detective Hunter asked if the backpack

      contained any weapons. Atkins responded that it did not, and Detective

      Hunter asked if he could check the backpack. Atkins consented, and Detective

      Hunter said, “You can say no, request a warrant, or ask for a lawyer if you




      2
          Detective Baker’s full name is not evident in the record.
      3
          Officer Fabris’ full name is not evident in the record.


      Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020       Page 3 of 20
      want.” Id. Atkins continued to deny that he had any weapons. They went to a

      lighted area, and Atkins opened his backpack for Detective Hunter. The

      backpack contained “multiple [laptops] or electronic devices,” and Detective

      Hunter requested to see the laptops. Tr. Vol. II p. 10. Atkins zipped the

      backpack and said, “Why do I got [sic] to pull my stuff out?” State’s Ex. A.

      Atkins continued to deny that he had anything to do with the incident. Atkins

      said he had a “witness” to corroborate his claim that he had just arrived in

      Bloomington, and Atkins started to walk toward the witness. Id. Detective

      Hunter requested Atkins to come back and repeatedly told Atkins to sit down

      on a curb. According to Detective Hunter, it is a “fair statement” that Atkins

      “was not free to leave” at that point. Tr. Vol. II p. 18. After a discussion with

      another officer, Atkins said he needed to use the restroom, and Detective

      Hunter told Atkins to sit back down.


[7]   Detective Hunter informed Atkins that he was investigating a burglary and that

      Williams was mentioned. Atkins continued to deny any involvement.

      Detective Hunter questioned Atkins regarding the time he arrived in

      Bloomington and what he had been doing. Detective Hunter again asked to see

      Atkins’ laptops, and Atkins continued to ask why Detective Hunter needed to

      go through his personal items. Detective Hunter told Atkins that laptops were

      stolen in the robbery and repeatedly tried to convince Atkins to let Detective

      Hunter see the laptops, but Atkins refused. Atkins said, “Wait, so you saying,

      so I don’t have my rights so y’all can go through my personal stuff.” State’s Ex.




      Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020         Page 4 of 20
       A. Detective Hunter responded, “Does it look like I’m going through your stuff

       right now.” Id.


[8]    After more refusals from Atkins, Detective Hunter walked away to talk to

       Williams, and Detective Baker talked to Atkins. Atkins’ discussion with

       Detective Baker was not recorded; however, Detective Hunter’s body camera

       was recording, and during Detective Hunter’s conversation with Williams,

       Atkins could be heard having a loud argument with Detective Baker. Williams

       informed Detective Hunter that Atkins arrived in Bloomington at

       approximately 4:00 p.m.


[9]    After approximately ten minutes, Detective Hunter returned to Atkins.

       Detective Baker can be heard saying to Atkins, “I get it, but when we’re asking

       questions, you gotta, you gotta cooperate, you know what I’m saying? Because

       it ain’t like we just gonna disappear and walk off.” Id. Detective Baker then

       told Detective Hunter that Atkins claimed to have purchased the laptops shortly

       before the officers arrived.


[10]   Detective Hunter asked Atkins, “So do you mind if I bring it over here and you

       can pull it out and I can just have a look at that?” Id. Atkins answered, “Yeah,

       I’ll pull it out.” Id. Atkins said that he purchased the backpack containing the

       three laptops for $450.00. Detective Hunter then examined the laptops, one of

       which had a username of Mark Lambert. At this point, the interaction between

       Atkins and the officers lasted almost thirty minutes. Approximately fifteen or




       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020        Page 5 of 20
       twenty minutes later, Atkins was handcuffed and transported to the police

       station.


[11]   On October 18, 2017, the State charged Atkins with: (1) burglary, a Level 1

       felony; (2) robbery, a Level 2 felony; and (3) armed robbery, a Level 3 felony.

       On August 15, 2018, Atkins filed a motion to suppress. Atkins argued that: (1)

       the search of his backpack violated his Fourth Amendment rights under the

       United States Constitution and his rights under Article 1, Section 11 of the

       Indiana Constitution; and (2) the interrogation violated his rights under the

       Fifth Amendment of the U.S. Constitution and Article 1, Section 14 of the

       Indiana Constitution. In particular, Atkins argued that his rights under Pirtle v.

       State, 263 Ind. 16, 323 N.E.2d 634 (1975), and Miranda v. Arizona, 384 U.S. 436,

       444, 86 S. Ct. 1602 (1966), were violated. Atkins requested the suppression of:

       (1) the evidence seized during the search of his backpack; and (2) his statements

       to the officers.


[12]   At the suppression hearing, Atkins testified that he did not feel free to leave

       during the incident in the parking lot; he was not given Miranda warnings; he

       was not informed that he had the right to refuse to consent to a search of his

       property; and he was not informed that he had a right to an attorney. After the

       hearing and briefing by the parties, the trial court granted Atkins’ motion to

       suppress on December 28, 2018. The trial court found:


               [T]he facts and analysis for the custody determination for
               Miranda are substantively the same as those made for Pirtle.



       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020          Page 6 of 20
               In conclusion, many of the factors considered by courts on the
               issues of Pirtle and Miranda are met in this case: Atkins’ freedom
               of movement was curtailed when he was directed to sit on the
               curb after having begun to walk off; his having a continual police
               presence while sitting on the curb; not being accommodated
               when he indicated he needed to urinate; multiple requests to
               search were not accompanied by a Pirtle advisement after an
               advisement of a state constitutional right was really not an
               advisement of a right at all; and the officer’s words and actions
               implied the possibility of arrest or detention or at the very least
               that Atkins was not free to go about his business. Under these
               circumstances, a reasonable person would believe that he “was
               under arrest or not free to resist the entreaties of the police.”
               Sellmer v. State, 842 N.E.2d 363.


       Appellant’s App. Vol. II p. 65.


[13]   In January 2019, the Honorable Teresa D. Harper, who granted Atkins’ motion

       to suppress, retired; the new trial court judge recused from this case. Another

       trial court judge, the Honorable Mary Ellen Diekhoff, was assigned this case.

       On January 28, 2019, the State filed a motion to correct error. Judge Diekhoff

       granted the State’s motion to correct error and reversed Judge Harper’s order

       granting Atkins’ motion to suppress.


[14]   In determining whether Atkins was in custody and entitled to Pirtle and Miranda

       warnings, Judge Diekhoff considered factors identified by our Supreme Court

       in Meredith v. State, 906 N.E.2d 867, 873-74 (Ind. 2009). The trial court

       concluded:


               Atkins’ interaction with the police clearly implicates only two of
               the factors enunciated by the court in Meredith: the police

       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020             Page 7 of 20
               suggested Atkins should cooperate and that he was not free to go
               about his business. The other factors are either not present at all,
               or were not sufficiently shown by the defense. The defense
               correctly notes and, indeed, their argument repeatedly presses
               upon the well-established notion that the custody inquiry is
               holistic and based on a “totality of circumstances,” rather than
               on a mechanical tallying of certain essential elements. However,
               courts regularly employ just such a tally of factors, not in blind
               reliance on blackletter requisites, but as an indispensable guide to
               objective and fair application of the law to specific circumstances.
               In this case, some of these factors are clearly, undeniably met,
               but too many are not or not certainly enough. As the court in
               Meredith was concerned to highlight, these factors are not
               exhaustive, exclusive, or even necessarily determinative in every
               case. However, given the lack of circumstances highlighted by
               the defense not falling within the remit of one or more of these
               factors, it would seem that their totality and the “totality of the
               circumstances” are effectively the same.


       Id. at 100-01. The trial court also concluded that Atkins’ consent to search the

       backpack was not the result of duress or coercion. The trial court found no

       violation of Pirtle or Miranda and reversed the earlier grant of Atkins’ motion to

       suppress.


[15]   Atkins filed a motion to certify the order for interlocutory appeal, which the

       trial court granted. This Court accepted jurisdiction over Atkins’ interlocutory

       appeal pursuant to Indiana Appellate Rule 14(B).


                                                      Analysis
[16]   Atkins appeals the grant of the State’s motion to correct error and denial of

       Atkins’ motion to suppress the results of the search of Atkins’ backpack and his

       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020          Page 8 of 20
       statements to the officers. We review a trial court’s ruling on a motion to

       correct error for an abuse of discretion. State v. Reinhart, 112 N.E.3d 705, 709-

       10 (Ind. 2018). “When a trial court denies a motion to suppress evidence, we

       necessarily review that decision ‘deferentially, construing conflicting evidence

       in the light most favorable to the ruling.’” Marshall v. State, 117 N.E.3d 1254,

       1258 (Ind. 2019) (quoting Robinson v. State, 5 N.E.3d 362, 365 (Ind. 2014)), cert.

       denied, 140 S. Ct. 113 (2019). We, however, consider any substantial and

       uncontested evidence favorable to the defendant. Id. We review the trial

       court’s factual findings for clear error, and we decline invitations to reweigh

       evidence or judge witness credibility. Id. “If the trial court’s decision denying

       ‘a defendant’s motion to suppress concerns the constitutionality of a search or

       seizure,’ then it presents a legal question that we review de novo.” Id. (quoting

       Robinson, 5 N.E.3d at 365).


                                          I. Was Atkins in Custody?

[17]   Both issues raised by Atkins require us to determine whether Atkins was in

       custody at the time of the search of his backpack and his statements to the

       officers. As discussed in greater depth in Sections II and III, if Atkins was in

       custody, he was entitled to certain advisements under Pirtle and Miranda.

       Atkins argues that he was in police custody, but the State argues that Atkins

       was the subject of a Terry stop, and not a custodial detention.


[18]   The custody inquiry is a mixed question of fact and law; the circumstances of

       the incident are matters of fact, and whether those facts add up to a custodial

       situation is a question of law. State v. Ruiz, 123 N.E.3d 675, 679 (Ind. 2019),
       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020          Page 9 of 20
       petition for cert. docketed. “We defer to the trial court’s factual findings, without

       reweighing the evidence; and we consider conflicting evidence most favorably

       to the suppression ruling.” Id. “[W]e review de novo the legal question of

       whether the facts amounted to custody.” Id.


[19]   Under Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868 (1968), an officer may “stop

       and briefly detain a person for investigative purposes,” so long as he can “point

       to specific and articulable facts which, taken together with rational inferences

       from those facts, reasonably warrant that intrusion.” Kelly v. State, 997 N.E.2d

       1045, 1051 (Ind. 2013) (internal citations omitted). “A Terry stop, thus, is

       permissible without a warrant or probable cause if the officer has reasonable

       suspicion to justify the stop.” Id.


               The line between a Terry stop and a full-blown custodial arrest is
               blurred by the tension and uncertainty inherent in such
               encounters. Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995). As in
               other areas of the law that do not rest comfortably within bright
               lines, we apply a “reasonableness” test: would a reasonable
               person, in the same situation as the defendant, believe she was
               free to leave? Id. The typical Terry stop is “a relatively brief
               encounter.” Wilson v. State, 745 N.E.2d 789, 791 (Ind. 2001)
               (quoting Knowles v. Iowa, 525 U.S. 113, 117, 119 S. Ct. 484, 142
               L.Ed.2d 492 (1998)). An arrest, in contrast, is “the taking of a
               person into custody, that he may be held to answer for a crime.”
               Ind. Code § 35-33-1-5 (2008) (emphasis added). And we have
               said before that “an arrest occurs when a police officer interrupts
               the freedom of the accused and restricts his liberty of




       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020            Page 10 of 20
                  movement.” Sears v. State, 668 N.E.2d 662, 667 (Ind. 1996)[ 4]
                  (finding arrest when defendant was handcuffed and placed in
                  patrol car).


       Id. at 1051.


[20]   In determining whether a defendant was in custody at the time of a search, our

       Supreme Court has held that custody occurs when two criteria are met: (1) the

       person’s freedom of movement is curtailed to the degree associated with a

       formal arrest; and (2) the person undergoes the same inherently coercive

       pressures as the type of station house questioning. Ruiz, 123 N.E.3d at 680.

       “[F]reedom of movement is curtailed when a reasonable person would feel not

       free to terminate the interrogation and leave.” Id.


                  This freedom-of-movement inquiry requires a court to examine
                  the totality of objective circumstances surrounding the
                  interrogation—such as the location, duration, and character of
                  the questioning; statements made during the questioning; the
                  number of law-enforcement officers present; the extent of police
                  control over the environment; the degree of physical restraint;
                  and how the interview begins and ends.


       Id. In Meredith, our Supreme Court described this test slightly differently. The

       Court identified a “non-exhaustive list of relevant factors” to consider in

       determining whether the defendant was in custody:




       4
           Overruled on other grounds by Scisney v. State, 701 N.E.2d 847 (Ind. 1998).


       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020                  Page 11 of 20
               whether the defendant was read his Miranda rights, handcuffed,
               restrained in any way, or told that he was a suspect in a crime;
               how vigorous was the law enforcement interrogation; 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; and the length of
               the detention.


       Meredith, 906 N.E.2d at 874.


[21]   In analyzing these factors, Atkins relies mainly upon our Supreme Court’s

       decision in Sellmer v. State, 842 N.E.2d 358 (Ind. 2006), while the State relies

       upon Meredith, 906 N.E.2d 867. In Sellmer, officers received an anonymous tip

       that a car parked in front of a hair salon contained a large amount of drugs.

       Officers went to the salon, located the vehicle, and inside the salon, asked the

       owner of the vehicle to come outside. After a discussion, the owner, Sellmer,

       gave the officers permission to search her vehicle, which led to the discovery of

       a large amount of marijuana. Sellmer argued that the search of her vehicle

       violated the Fourth and Fifth Amendments to the United States Constitution

       and Article 1, Section 11 of the Indiana Constitution. The trial court, however,

       denied her motion to suppress.


[22]   On appeal, our Supreme Court considered, in part, whether Sellmer was in

       custody and entitled to a Pirtle advisement. The Court noted that officers asked

       Sellmer’s permission to search three to five times before she consented; officers

       asked questions that, if not incriminating, “came extremely close”; officers told

       Sellmer that it would be in her “best interest to cooperate” and not make the


       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020         Page 12 of 20
       officers “jump through a bunch of hoops”; officers told Sellmer that, if no

       contraband was discovered, she would be allowed “to go on [her] way”;

       Sellmer asked a lot of questions about her rights and options and the officer

       responded, “It’s in your best interest to cooperate and not make us jump

       through a bunch of hoops”; and when Sellmer asked, “Do I have to let you

       [search my car]?”, the officer again said, “It would be in your best interest to

       cooperate if you have nothing to hide.” Sellmer, 842 N.E.2d at 364-65.


[23]   The Court concluded:


               [W]e apply a totality of the circumstances test in such situations
               and, given the extensive efforts that Officer Roberts went to here .
               . . to persuade Sellmer to consent and to avoid advising her that
               she was not required to consent even in the face of her direct
               questions, we conclude that a reasonable person under the same
               circumstances as those in which Sellmer found herself would
               believe either that she was under arrest or, at least, that she was
               not free to resist the entreaties of the police.


       Id. at 365.


[24]   In Meredith, our Supreme Court reached a different result. During a traffic stop,

       the officer noticed that Meredith smelled of alcohol, his eyes were red and

       bloodshot, and he was nervous. When a breath test was administered and was

       negative for alcohol, the officer asked to search Meredith’s vehicle. Meredith

       agreed, which led to the discovery of cocaine. The trial court denied Meredith’s

       motion to suppress.




       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020         Page 13 of 20
[25]   Our Supreme Court in Meredith determined that “the record reveals nothing

       more than a conventional traffic stop.” Meredith, 906 N.E.2d at 874. The

       officer stopped Meredith for a traffic infraction; asked for Meredith’s license;

       asked to perform a sobriety test based on his observations of Meredith; and

       asked for consent to search the vehicle. The Court held: “Absent anything in

       the record pointing the other way, ‘[t]reatment of this sort cannot fairly be

       characterized as the functional equivalent of [a] formal arrest.’” Id. (citation

       omitted). The Court concluded that Meredith was not in custody.


[26]   There is no bright line rule to determine whether Atkins was merely subjected

       to a Terry stop or whether he was in custody. The State argues that Atkins was

       not in custody until he was handcuffed. Atkins argues that, at some point, the

       interaction went from a Terry stop to a custodial situation. After considering

       the totality of the circumstances and the factors identified by our Supreme

       Court in Ruiz and Meredith, we conclude that Atkins was in custody.


[27]   Atkins and Williams were confronted in the apartment complex parking lot by

       multiple officers, some of whom were in uniform. The officers separated

       Atkins and Williams. Atkins almost immediately learned that the officers were

       investigating a burglary and that Atkins’ name had been raised. Over the

       course of the interaction, the officers repeatedly told Atkins to sit on the curb,

       would not let him approach a “witness,” and would not let him use the

       restroom. Although Atkins initially allowed the officers to look in his backpack

       to check for weapons, officers then repeatedly asked to look at the laptops in the



       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020          Page 14 of 20
       backpack. Atkins was agitated and repeatedly and loudly denied the officers’

       requests and asked about his rights.


[28]   The officers also suggested Atkins should cooperate and implied adverse

       consequences for noncooperation. One officer told Atkins, “We got a job to

       do, let us get through it, the quicker you cooperate with us the quicker we get

       the hell outta here.” State’s Ex. A. Detective Baker told Atkins, “I get it, but

       when we’re asking questions, you gotta, you gotta cooperate, you know what

       I’m saying? Because it ain’t like we just gonna disappear and walk off.” Id.

       After more than twenty minutes of argument with the officers, Atkins told

       Detective Baker that he had just purchased the laptops for $450.00 and allowed

       Detective Hunter to look at the laptops. Detective Hunter then discovered that

       one of the laptops belonged to Lambert based on the username. At this point,

       the interaction between Atkins and the officers was almost thirty minutes long.

       Approximately fifteen or twenty minutes later, Atkins was handcuffed and

       transported to the police station.


[29]   Although Atkins was initially not handcuffed, he was restrained, told that he

       was a suspect in a crime, and was subjected to vigorous questioning about the

       contents of his backpack. The officers suggested that Atkins should cooperate,

       and Detective Hunter testified that it is a “fair statement” that Atkins “was not

       free to leave.” Tr. Vol. II p. 18. This situation is much more like Sellmer than

       the routine traffic stop in Meredith. Under these circumstances, Atkins’ freedom

       of movement was curtailed because a reasonable person would not have felt

       free to leave, and Atkins was subjected to inherently coercive pressures as in

       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020        Page 15 of 20
       Sellmer. Accordingly, we conclude Atkins was in custody. See, e.g., Sellmer, 842

       N.E.2d at 365; Ruiz, 123 N.E.3d at 682 (holding that the defendant was in

       custody after detectives asked him to come to the station, detectives told him

       that he could leave, and detectives aggressively questioned the defendant); State

       v. Janes, 102 N.E.3d 314 (Ind. Ct. App. 2018) (holding that the defendant was in

       custody where, after the defendant received a verbal warning for failure to dim

       his lights, the officer asked incriminating questions and obtained permission to

       search the vehicle), trans. denied; cf. Brown v. State, 70 N.E.3d 331 (Ind. 2017)

       (holding that the defendant, who was detained at a field sobriety checkpoint,

       was not “in custody”).


                             II. Search of the Backpack/Pirtle Advisement

[30]   Atkins argues that the search of his backpack violated his rights under Article 1,

       Section 11 of the Indiana Constitution because he did not voluntarily consent to

       the search and because he was not advised of his Pirtle rights prior to obtaining

       consent to the search. 5


[31]   The Fourth Amendment to the United States Constitution guarantees “[t]he

       right of the people to be secure in their persons, houses, papers, and effects”

       from unreasonable searches and seizures. U.S. Const. Amend. IV. The Fourth

       Amendment requires police to obtain a search warrant from a neutral, detached




       5
        Atkins also argues that the search of his backpack violated his rights under the Fourth Amendment.
       Because we conclude that Atkins’ rights under the Indiana Constitution were violated, we need not address
       his remaining arguments under the Fourth Amendment.

       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020                              Page 16 of 20
       magistrate prior to undertaking a search of either a person or private property.

       Dycus v. State, 108 N.E.3d 301, 304 (Ind. 2018) (citing Katz v. United States, 389

       U.S. 347, 357, 88 S. Ct. 507 (1967)). The requirement for a warrant, however,

       is subject to exceptions, including when a person consents to a search. Id.


[32]   “Our State Constitution offers citizens parallel protections against unreasonable

       searches and seizures.” Dycus, 108 N.E.3d at 304. Article 1, Section 11

       provides that “[t]he right of the people to be secure in their persons, houses,

       papers, and effects, against unreasonable search or seizure, shall not be violated

       . . . .” “Although the wording of Section 11 is almost identical to that of the

       Fourth Amendment, our State Constitution’s search and seizure clause is given

       an independent interpretation and application.” Id. Indiana’s Constitution

       sometimes offers broader protections than those offered by the United States

       Constitution. Id. “Amongst those broader protections offered by our State

       Constitution is the requirement that, prior to obtaining consent to a search,

       police must explicitly advise a person in custody of [his] right to consult with

       counsel.” Id. Specifically, our Supreme Court held in Pirtle that “a person in

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

       consenting to a search, and that the right, if waived, must be explicitly waived.”

       Id. at 305. This requirement “is unique to Indiana and has no federal

       counterpart.” Id. at 304.




       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020         Page 17 of 20
[33]   We have concluded that Atkins was in custody during the search of the laptop

       in his backpack. 6 See supra Section I. Accordingly, we conclude that Atkins

       was in custody and was entitled to a Pirtle advisement prior to the search of the

       laptop in his backpack. Atkins argues that he was not given a Pirtle advisement

       prior to the search of the laptop in his backpack, but the State does not address

       the argument. It is undisputed that Atkins was not given a Pirtle advisement

       before the search of the laptop in his backpack when he was in custody.


[34]   Earlier in the interaction, when Detective Hunter asked if Atkins had any

       weapons in his backpack, Detective Hunter said, “You can say no, request a

       warrant, or ask for a lawyer if you want.” State’s Ex. A. Atkins, however, was

       not in custody at that time. Even if this statement applies to the later search of

       Atkins’ backpack, Detective Hunter’s statement fails to explicitly inform Atkins

       that he was entitled to the presence and advice of counsel prior to consenting to

       the search, and the statement fails to comply with the Pirtle advisement

       requirement for a person in custody. See Dycus, 108 N.E.3d at 304 (“[P]rior to

       obtaining consent to a search, police must explicitly advise a person in custody

       of her right to consult with counsel.”) (emphasis added).


[35]   Because Atkins did not receive a Pirtle warning prior to the search of the laptop

       in his backpack and was entitled to one and did not explicitly waive his right to




       6
        During the oral argument, Atkins would not concede that the officer had reasonable suspicion to stop
       Atkins. There is, however, no argument in Appellant’s Brief that the search of the backpack for weapons was
       improper and no argument that the search of the backpack for weapons required a Pirtle advisement.

       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020                              Page 18 of 20
       counsel prior to the search, the trial court erred by granting the State’s motion

       to correct error and reversing the earlier grant of Atkins’ motion to suppress the

       evidence obtained as a result of the search. See, e.g., Sellmer, 842 N.E.2d at 365

       (reversing the denial of Sellmer’s motion to suppress where Sellmer was in

       custody and was entitled to a Pirtle advisement, which she was not provided).


                        III. Suppression of Statements/Miranda Advisement

[36]   Atkins also argues that the trial court erred by denying his motion to suppress

       statements that he made to the officers pursuant to the Fifth Amendment of the

       United States Constitution. 7 The Fifth Amendment, incorporated to the states

       via the Fourteenth Amendment, guarantees that “no person . . . shall be

       compelled in any criminal case to be a witness against himself.” U.S. Const.

       amend. V; Kelly, 997 N.E.2d at 1053. The United States Supreme Court held in

       Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602 (1966), that, before a law

       enforcement officer may subject someone to custodial interrogation, the officer

       must advise him “that he has a right to remain silent, that any statement he

       does make may be used as evidence against him, and that he has a right to the

       presence of an attorney, either retained or appointed.” Kelly, 997 N.E.2d at

       1053. “If the officer does not so advise the subject, the prosecutor cannot use

       any statements the subject does make against him in court.” Id. “The trigger to




       7
        Atkins also argues that his statements were inadmissible under Article 1, Section 14 of the Indiana
       Constitution. Because we conclude that Atkins’ rights under the Fifth Amendment were violated, we need
       not address his remaining arguments under the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020                           Page 19 of 20
       require the announcement of Miranda rights is custodial interrogation.” State v.

       Brown, 70 N.E.3d 331, 335 (Ind. 2017)


[37]   We have determined that Atkins was in custody. See supra Section I. As such,

       Atkins was entitled to an advisement of his Miranda rights prior to the police

       questioning him, which he did not receive. The trial court erred by granting the

       State’s motion to correct error and reversing the earlier grant of Atkins’ motion

       to suppress his statements to the police.


                                                   Conclusion
[38]   The trial court erred when it found that Atkins was not in custody and was not

       entitled to Pirtle and Miranda advisements. Accordingly, the trial court erred by

       granting the State’s motion to correct error and by reversing the earlier grant of

       Atkins’ motion to suppress. We reverse and remand.


[39]   Reversed and remanded.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-951 | April 3, 2020         Page 20 of 20
