MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any
court except for the purpose of establishing                 Aug 14 2017, 8:29 am

the defense of res judicata, collateral                           CLERK
                                                              Indiana Supreme Court
estoppel, or the law of the case.                                Court of Appeals
                                                                   and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Curtis T. Hill, Jr.                                      R. Patrick Magrath
Attorney General of Indiana                              Alcorn Sage Schwartz &
                                                         Magrath, LLP
Tyler G. Banks
                                                         Madison, Indiana
Deputy Attorney General
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        August 14, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         36A05-1702-CR-356
        v.                                               Appeal from the Jackson Circuit
                                                         Court
Benjamin Bracewell,                                      The Honorable William E. Vance,
Appellee-Defendant.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         36C01-1607-F2-18



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 1 of 18
                               Case Summary and Issues
[1]   In July 2016, Benjamin Bracewell was arrested and the State charged him with

      dealing in methamphetamine, a Level 2 felony; unlawful possession of a

      firearm by a serious violent felon, a Level 4 felony; carrying a handgun without

      a license, a Level 5 felony; and possession of marijuana, a Class B

      misdemeanor. Prior to trial, Bracewell filed motions to suppress the cash, key

      cards, marijuana, handgun, methamphetamine, and scales found during his

      encounter with police as well as statements he made to police. The trial court

      granted Bracewell’s motions. The State raises three issues for our review,

      which we consolidate and restate as: whether the trial court erred in suppressing

      the evidence. Concluding the trial court properly suppressed the cash, key

      cards, marijuana, and Bracewell’s statements but erred in suppressing the

      handgun, methamphetamine, and scales, we affirm in part, reverse in part, and

      remand for further proceedings.



                            Facts and Procedural History
[2]   On the evening of July 9, 2016, Officer James Handley of the Seymour Police

      Department parked his unmarked patrol car in the parking lot of a Seymour

      hotel. The Seymour Police Department considered the area a “high crime

      area.” Transcript, Volume II at 11. Ten minutes later, Bracewell walked from

      the hotel towards Officer Handley’s vehicle. Bracewell walked to within a

      couple car lengths of Officer Handley’s vehicle before turning around and



      Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 2 of 18
      walking back toward the hotel. Officer Handley then exited his vehicle and

      followed Bracewell.


[3]   Officer Handley caught up with Bracewell near the top of the two-story hotel’s

      exterior stairwell. Officer Handley asked Bracewell why he turned and walked

      away from the police vehicle. Bracewell replied he thought the car belonged to

      a friend who was supposed to give him a ride and he turned around after

      realizing his mistake. Officer Handley spoke into his police radio, informing

      dispatch he was with Bracewell. Bracewell reacted by raising both hands into

      the air, showing he had nothing in them. Officer Handley continued speaking

      to Bracewell for more than five minutes. Officer Handley asked Bracewell

      whether he had “something on you you shouldn’t have,” accused him of

      “moving stuff,” and told him “you’re gonna get caught.” State’s Exhibit 1, Clip

      1 at 1:05-1:15, 4:40-5:00.


[4]   Six minutes after Officer Handley began conversing with Bracewell, Officer

      Devlin McMindes of the Seymour Police Department arrived. Officer Handley

      again asked Bracewell if he had anything illegal on his person and Bracewell

      responded he did not. Bracewell then consented to a pat-down search. Officer

      Handley conducted a pat-down search and found nothing illegal.


[5]   Officer Handley then turned to walk downstairs to retrace and search

      Bracewell’s route, telling Bracewell, “I’m gonna have [Officer McMindes] stand

      with you and I’m gonna walk your route real quick, okay?” Id. at 7:00-7:10.

      As Officer Handley began retracing Bracewell’s route, a third officer, Officer


      Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 3 of 18
      Benjamin Miller of the Seymour Police Department, arrived and also stood

      with Bracewell. When Officer Handley reached the bottom of the stairwell,

      Bracewell dropped his driver’s license from the top of the stairwell. Officer

      Handley retrieved the card from the ground and noticed what he believed was a

      marijuana cigarette a few inches from the card. Officer Handley instructed

      Officer McMindes to place Bracewell in custody. Officer McMindes placed

      Bracewell in handcuffs, read him his Miranda warnings, and searched him.

      Officer McMindes found cash and two key cards in Bracewell’s pocket.1


[6]   Officer Handley continued retracing Bracewell’s route before eventually

      searching more around the stairwell. Officer Handley first found a red bag

      lying on the ground on the opposite side of the stairwell from where he and

      Bracewell stood and talked. Officer Handley opened the bag, discovered a gun,

      and brought it to Bracewell. Bracewell denied possessing the bag or gun.

      Officer Handley searched the stairwell again and found a black case sitting on a

      small ledge near where he found the red bag. He opened the black case and

      found methamphetamine and scales. Bracewell denied possessing the case or

      its contents.


[7]   Officer McMindes transported Bracewell to the police station. Officer

      McMindes later testified Bracewell admitted during his transport he dropped

      the marijuana cigarette. The next day, while Bracewell was still in custody,



      1
        The key cards led officers to a nearby hotel where they found $4,000 in cash in a room Bracewell was
      staying in.

      Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017           Page 4 of 18
       Officer Handley read him his Miranda warnings again and questioned him.

       Bracewell told Officer Handley that he had him “dead in rights.” Tr., Vol. II at

       36.


[8]    The State charged Bracewell with dealing in methamphetamine, a Level 2

       felony; unlawful possession of a firearm by a serious violent felon, a Level 4

       felony; carrying a handgun without a license, a Level 5 felony; and possession

       of marijuana, a Class B misdemeanor.


[9]    On August 17, 2016, Bracewell filed a motion to suppress. Bracewell alleged

       his detainment was unlawful under the Fourth Amendment to the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution. As a result,

       he argued physical evidence discovered during his unlawful detainment should

       be suppressed. On December 12, 2016, Bracewell filed another motion to

       suppress, seeking to suppress some of his statements. After hearing evidence

       and receiving briefing from both parties, the trial court granted Bracewell’s

       motions. This appeal followed.



                                 Discussion and Decision
                                      I. Standard of Review
[10]   On appeal from the grant of a motion to suppress, the State appeals from a

       negative judgment and must show the trial court’s ruling on the suppression

       motion was contrary to law. State v. Estep, 753 N.E.2d 22, 24-25 (Ind. Ct. App.

       2001). This court neither reweighs the evidence nor judges the credibility of the

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 5 of 18
       witnesses; rather, we consider only the evidence most favorable to the

       judgment. Id. at 25. This court will reverse a negative judgment only when the

       evidence is without conflict and all reasonable inferences lead to a conclusion

       opposite that of the trial court. Id.


                                       II. Items in Stairwell
                                      A. Marijuana Cigarette
[11]   The State argues the trial court erred in suppressing the marijuana cigarette

       Officer Handley found near Bracewell’s driver’s license. Specifically, the State

       contends Bracewell abandoned the marijuana cigarette while walking away

       from Officer Handley, before any seizure of Bracewell occurred. As a result,

       the State alleges no Fourth Amendment violation arose from its collection.

       Alternatively, the State contends Bracewell abandoned the marijuana cigarette

       during his encounter with Officer Handley at the top of the stairs, which

       constituted either a consensual encounter or a valid Terry stop. Either way, the

       State argues no Fourth Amendment violation occurred. We disagree.


[12]   The Fourth Amendment to the United States Constitution provides:


               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and
               particularly describing the place to be searched, and the persons
               or things to be seized.




       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 6 of 18
       The Fourth Amendment requires that an arrest or detention for more than a

       short period be justified by probable cause. Woods v. State, 547 N.E.2d 772, 778

       (Ind. 1989), abrogated on other grounds by Richardson v. State, 717 N.E.2d 32 (Ind.

       1999). 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. Brinegar v. United States, 338 U.S. 160, 175-76

       (1949).


[13]   Not every confrontation between a police officer and a citizen amounts to a

       Fourth Amendment seizure of a citizen. Hayes v. State, 794 N.E.2d 492, 496

       (Ind. Ct. App. 2003), trans. denied. A seizure occurs when, taking into account

       all the circumstances surrounding an encounter, the police conduct would

       communicate to a reasonable person that he was not free to ignore the police

       presence and go about his business. Id. Police actions that a reasonable person

       might interpret as an intrusion on freedom of movement include the threatening

       presence of several officers, the display of a weapon by an officer, some physical

       touching of the citizen, or use of language or tone of voice indicating that

       compliance with the officer’s request might be compelled. United States v.

       Mendenhall, 446 U.S. 544, 554 (1980).


[14]   Even if police actions exhibit an intrusion on freedom of movement, a seizure

       does not occur until the person submits to the show of authority. California v.

       Hodari D., 499 U.S. 621, 626 (1991). Further, abandoned property is not subject

       to Fourth Amendment protection. Campbell v. State, 841 N.E.2d 624, 627 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 7 of 18
       Ct. App. 2006). However, if property is abandoned after a citizen is improperly

       detained, the evidence is not admissible. Id. The question of abandonment is

       primarily a question of intent and rests upon whether the defendant retained a

       reasonable expectation of privacy in the property at the time of the search or

       seizure. State v. Machlah, 505 N.E.2d 873, 879 (Ind. Ct. App. 1987) trans.

       denied.


[15]   In addition to seizures, another form of confrontation between officers and

       citizens with Fourth Amendment implications is a Terry stop. A Terry stop

       occurs when an officer, without a warrant or probable cause, briefly detains an

       individual for investigatory purposes. Overstreet v. State, 724 N.E.2d 661, 663

       (Ind. Ct. App. 2000), trans. denied. The officer must have reasonable suspicion,

       based on specific and articulable facts, that criminal activity may be afoot. Id.

       “[R]easonable suspicion must be comprised of more than hunches or

       unparticularized suspicions.” State v. Murray, 837 N.E.2d 223, 225-26 (Ind. Ct.

       App. 2005), trans. denied. In contrast to seizures and Terry stops, consensual

       encounters have no Fourth Amendment implications. Overstreet, 724 N.E.2d at

       663. During consensual encounters, officers make a casual and brief inquiry of

       a citizen who is free to leave at any time. Id.


[16]   Officer Handley’s interaction with Bracewell was not a consensual encounter.

       Officer Handley quickly followed Bracewell after Bracewell turned and walked

       away from Officer Handley’s vehicle. Officer Handley caught up to Bracewell

       at the top of the stairwell and began questioning Bracewell and accusing him of

       illegal activity. Bracewell raised both hands to show his empty palms when he

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 8 of 18
       heard Officer Handley state his name while speaking to dispatch and Officer

       Handley physically patted-down Bracewell. After Officer McMindes arrived,

       also in full uniform, Officer Handley told Bracewell that Officer McMindes

       would stand with him while Officer Handley retraced Bracewell’s route. As

       Officer Handley began retracing Bracewell’s route, Officer Miller, also in full

       uniform, arrived at the scene and stood with Bracewell. By this point the

       interaction had moved well beyond a casual and brief encounter.


[17]   The interaction also was not a valid Terry stop. In support of the encounter

       being a valid Terry stop, the State contends Bracewell walked away from Officer

       Handley in a “high-crime area.” Brief of Appellant at 23. The State also

       contends Seymour police officers received information Bracewell was involved

       in drug activity at the hotel. These facts do not provide reasonable suspicion to

       conduct a Terry stop.


[18]   The State provided no evidence at the suppression hearing supporting its

       contention that the area in which Officer Handley found Bracewell was a high-

       crime area. Regardless, a person’s presence in a high-crime area combined with

       walking away from an officer are not sufficient to provide reasonable suspicion.

       Jacobs v. State, 76 N.E.3d 846, 850 (Ind. 2017). The information Seymour

       police officers received concerning Bracewell’s alleged drug activity was from

       “[p]rior to this night.” Br. of Appellant at 23. On the night in question, Officer

       Handley simply observed Bracewell walk through a hotel parking lot towards

       Officer Handley’s vehicle and then turn around. Officer Handley observed

       nothing illegal and had received no reports of illegal activity at that time. In

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 9 of 18
       light of these facts, we cannot say Officer Handley held more than an

       unparticularized suspicion. As a result, Officer Handley lacked reasonable

       suspicion to conduct a valid Terry stop.


[19]   The correct characterization of the officers’ interaction with Bracewell is a

       seizure. Officer Handley questioned and accused Bracewell and then

       conducted a physical pat-down of him while two more officers arrived at the

       scene. Additionally, once three fully-uniformed officers were there, Officer

       Handley told Bracewell that Officer McMindes would stand with him while

       Officer Handley retraced his route. In light of these facts, we cannot say a

       reasonable person in Bracewell’s position would feel free to leave. Further,

       Bracewell submitted to the officers’ show of authority when he raised his hands

       to show they were empty. Because Officer Handley lacked reasonable

       suspicion, he also lacked the probable cause necessary to lawfully seize

       Bracewell. Therefore, Bracewell was unlawfully seized at the top of the

       stairwell before Officer Handley found the marijuana cigarette.


[20]   The State’s contention that Bracewell might have abandoned the marijuana

       cigarette while walking up the stairs, and therefore before being seized, is an

       invitation to reweigh the evidence and judge the credibility of the witnesses,

       which we cannot do. See Estep, 753 N.E.2d at 25. Officer Handley found the

       marijuana cigarette just inches away from Bracewell’s driver’s license. The trial

       court could have reasonably concluded Bracewell dropped the marijuana

       cigarette at the same time he dropped his driver’s license, after being unlawfully

       seized. Therefore, even if the marijuana cigarette is considered abandoned, it

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 10 of 18
       would not be admissible because property abandoned after an unlawful seizure

       is not admissible. See Campbell, 841 N.E.2d at 627. As a result, the trial court

       did not err in suppressing the marijuana cigarette.


                          B. Gun, Methamphetamine, and Scales
[21]   The State similarly argues the trial court erred in suppressing the gun,

       methamphetamine, and scales. The State contends Bracewell abandoned the

       bag and case containing those items before any seizure occurred because Officer

       Handley found the bag and case in a location consistent with Bracewell

       dropping them while walking away from Officer Handley. The State contends

       the bag and case remained in a public area for at least ten minutes where

       anyone could have found them. As a result, Bracewell lost any expectation of

       privacy in them. We agree with the State’s argument this evidence was

       abandoned property.


[22]   Bracewell contends he dropped the bag and case in response to the officers’

       illegal conduct.2 However, Officer Handley never saw Bracewell holding the

       bag or case while talking to him at the top of the stairwell. Further, Officer

       Handley found the bag on the ground on the opposite side of the stairwell and

       the case balanced on a small ledge nearby. Based on their location, and

       because Officer Handley never saw Bracewell holding these large items, it is




       2
        For the purpose only of suppression and this appeal, Bracewell concedes the evidence supports the inference
       he is the owner of the bag and case.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017         Page 11 of 18
       highly unlikely Bracewell dropped the bag and case from the top of the

       stairwell. Therefore, unlike the marijuana and driver’s license, Bracewell must

       have dropped the bag and case before being seized at the top of the stairwell.


[23]   The question then becomes whether Bracewell abandoned the bag and case or

       retained a reasonable expectation of privacy in them at the time of the search.

       Machlah, 505 N.E.2d at 879. Bracewell argues he placed the bag and case in a

       location where he intended them to be hidden from law enforcement.

       However, Bracewell placed the bags in plain view next to the exterior stairwell

       of a hotel where the police, or anyone else, could find them. Regardless of

       Bracewell’s intent, there was nothing stopping the police from finding the bag

       and case in that location and Bracewell did not retain an expectation of privacy

       in them. See United States v. Thomas, 864 F.2d 843, 846 (D.C. Cir. 1989)

       (holding a defendant who left his gym bag on the floor of a public hallway in an

       apartment building and walked down the stairs surrendered his expectation of

       privacy). As a result, the bag and case are appropriately considered abandoned

       property. Since Bracewell abandoned the bag and case before his unlawful

       seizure, the trial court erred in suppressing the gun, methamphetamine, and

       scales found therein.


                             III. Items on Bracewell’s Person
[24]   The State also contends the trial court erred in suppressing the cash and key

       cards Officer McMindes found on Bracewell’s person. The State argues Officer

       McMindes found the money and key cards during a search incident to a lawful


       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 12 of 18
       arrest because Officer Handley’s discovery of the marijuana cigarette provided

       probable cause for Bracewell’s arrest. We disagree.


[25]   Officers may conduct a search without a warrant if it is incidental to a lawful

       arrest. Townsend v. State, 460 N.E.2d 139, 141 (Ind. 1984). The “fruit of the

       poisonous tree” doctrine bars the admission of evidence “directly obtained by

       [an] illegal search or seizure as well as evidence derivatively gained as a result

       of information learned or leads obtained during that same search or seizure.”

       Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013). To invoke the doctrine, a

       defendant must first prove a Fourth Amendment violation and then must show

       the evidence was a “fruit” of the illegal search. Id. But the exclusion of

       evidence is not the result of a simple “but for” test. Jackson v. State, 996 N.E.2d

       378, 384 (Ind. Ct. App. 2013), trans. denied. The doctrine has no application

       where (1) “evidence [is] initially discovered during, or as a consequence of, an

       unlawful search, but [is] later obtained independently from activities untainted

       by the initial illegality,” Murray v. United States, 487 U.S. 533, 537 (1988)

       (independent source); (2) “the information ultimately or inevitably would have

       been discovered by lawful means,” Nix v. Williams, 467 U.S. 431, 444 (1984)

       (inevitable discovery); or (3) “the connection between the lawless conduct of the

       police and the discovery of the challenged evidence has ‘become so attenuated

       as to dissipate the taint,’” Wong Sun v. United States, 371 U.S. 471, 487 (1963)

       (citation omitted) (attenuation). The burden is on the State to prove one of

       these exceptions applies. Clark, 994 N.E.2d at 266, 272.




       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 13 of 18
[26]   As discussed above, Bracewell was unlawfully seized at the top of the stairwell

       and has shown a Fourth Amendment violation occurred. As a result of that

       violation, Officer Handley found the marijuana cigarette. Officer Handley then

       used the marijuana cigarette as the basis for probable cause to arrest Bracewell.

       Officer Handley only had probable cause for Bracewell’s arrest because of an

       unlawful seizure. The State does not argue the evidence found on Bracewell’s

       person fits into one of the exceptions, instead insisting Bracewell’s arrest was

       lawful. However, Bracewell demonstrated a Fourth Amendment violation

       occurred and the evidence found on his person were fruits of that violation.

       The State had the burden of showing the evidence fits into one of the

       exceptions. Given the police did not have probable cause until after the

       unlawful seizure, coupled with the State’s failure to meet its burden of showing

       one of the exceptions applies, we conclude the trial court properly suppressed

       the cash and key cards found on Bracewell’s person.


                                  IV. Bracewell’s Statements
[27]   Lastly, the State contends the trial court erred in suppressing Bracewell’s

       statements. Bracewell’s first statement at issue occurred at the top of the

       stairwell, when he denied possession of the marijuana cigarette, bag, and case.

       The next statement at issue occurred while Officer McMindes transported

       Bracewell to the police station, when Bracewell admitted dropping the

       marijuana cigarette. Bracewell’s last statement at issue came the following day

       at the police station, when Bracewell told Officer Handley that he had him

       “dead in rights.”

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 14 of 18
[28]   The State argues Bracewell made all his statements voluntarily after a lawful

       arrest. Alternatively, the State argues if Bracewell’s arrest was unlawful, the

       taint of unlawful conduct dissipated before Bracewell’s statements. If that is

       true, then the evidence is admissible under the attenuation exception to the fruit

       of the poisonous tree doctrine. The State contends there were intervening

       circumstances between the unlawful conduct and Bracewell’s statements

       because Officers Handley and McMindes read Bracewell his Miranda warnings

       before Bracewell voluntarily spoke. Further, the State contends no officers

       committed additional flagrant misconduct to exploit the unlawful seizure. As a

       result, the State alleges the taint of unlawful conduct dissipated before

       Bracewell’s statements and they are therefore admissible. We disagree.


[29]   As discussed above, Bracewell’s seizure was unlawful and all of his statements

       at issue followed his unlawful seizure. Therefore, the State must rely on its

       argument that the fruit of the poisonous tree doctrine does not apply to

       Bracewell’s statements because they fall under the attenuation exception. In

       determining whether the connection has become attenuated, courts generally

       consider “(1) the time elapsed between the illegality and the acquisition of the

       evidence; (2) the presence of intervening circumstances; and (3) the purpose and

       flagrancy of the official misconduct.” Sanchez v. State, 803 N.E.2d 215, 221

       (Ind. Ct. App. 2004) (quoting United States v. Green, 111 F.3d 515, 521 (7th Cir.

       1997)), trans. denied. The important consideration in the third factor is whether

       the evidence came from the “‘exploitation of that illegality or instead by means

       sufficiently distinguishable to be purged of the primary taint.’” Quinn v. State,


       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 15 of 18
       792 N.E.2d 597, 600 (Ind. Ct. App. 2003) (quoting Wong Sun, 371 U.S. at 488),

       trans. denied.


[30]   The State concedes very little time elapsed between the unlawful conduct and

       Bracewell’s statements. Br. of Appellant at 34. The first two statements came

       immediately after Bracewell’s unlawful arrest, and the last came the next day

       while Bracewell was still in custody. Bracewell made all the statements at issue

       within twenty-four hours of his unlawful seizure.


[31]   As to the presence of intervening circumstances, the State also concedes

       Miranda warnings alone are not sufficient to purge the taint of an illegal arrest.

       Id. at 33. The fact that Bracewell’s statements were voluntary also does not

       purge the taint of the unlawful seizure. In Turner v. State, 862 N.E.2d 695 (Ind.

       Ct. App. 2007), a detective carried out an unlawful traffic stop on Dennis

       Turner. After speaking with the detective at the scene, Turner agreed to talk

       more at the sheriff’s department. Turner rode to the sheriff’s department in the

       detective’s vehicle but was never handcuffed. After receiving Miranda

       warnings, Turner voluntarily made a recorded statement. Still, this court

       suppressed Turner’s statement, emphasizing the “near-constant interaction

       between Turner and police.” Id. at 702. Likewise, in this case, Bracewell

       remained in near-constant interaction with the police from the time of his

       unlawful seizure to the time he made the final statement at issue. Additionally,

       Officer McMindes actually arrested and handcuffed Bracewell before Bracewell

       made any of the statements. Therefore, as in Turner, the Miranda warnings and



       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 16 of 18
       voluntariness of Bracewell’s statements are insufficient to purge the taint of the

       unlawful seizure.3


[32]   In regard to the purpose and flagrancy of the official misconduct, the State

       argues misconduct requires more than “the mere absence of proper cause for

       the seizure.” Utah v. Strieff, 136 S.Ct. 2056, 2064 (2016). In Strieff, an officer

       conducting a “bona fide investigation of a suspected drug house” observed

       Edward Strieff leaving the house. Id. at 2063. The officer previously received

       an anonymous tip regarding the house and corroborated the tip with personal

       observation. The officer unlawfully seized Strieff in order to uncover more

       information about the house. The officer committed no further unlawful

       activity, but found methamphetamine and paraphernalia on Strieff’s person.

       The Utah Supreme Court suppressed the methamphetamine and paraphernalia.

       The United States Supreme Court reversed, noting “neither the officer’s alleged

       purpose nor the flagrancy of the violation rise to a level of misconduct to

       warrant suppression,” as well as the presence of other intervening

       circumstances. Id. at 2064.


[33]   As in Strieff, the police officers here did not commit further unlawful conduct

       after the unlawful seizure. However, unlike the officer in Strieff, Officer

       Handley unlawfully seized Bracewell for the purpose of questioning and




       3
         The State does not contend the discovery of the meth, scales, and the gun constitute intervening
       circumstances giving the officers probable cause to arrest Bracewell and we decline to develop that argument
       on its behalf. Baniaga v. State, 891 N.E.2d 615, 620 n.9 (Ind. Ct. App. 2008). While we may affirm on any
       ground, we may only reverse on arguments presented by a party.

       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017          Page 17 of 18
       accusing Bracewell of illegal activity, not to further some other bona fide

       investigation. The State emphasizes the lack of further misconduct by the

       officers in this case, but ignores the purpose of the unlawful seizure. In light of

       the purpose of Bracewell’s seizure, the third factor considered in the attenuation

       analysis is less favorable to the State than in Strieff. Meanwhile, the other two

       factors weigh in Bracewell’s favor.


[34]   In sum, considering the short time that elapsed between Bracewell’s unlawful

       arrest and his statements, his near-constant interaction with officers, and the

       purpose of the seizure, we cannot say the trial court erred in suppressing

       Bracewell’s statements.



                                               Conclusion
[35]   Concluding the trial court properly suppressed the marijuana cigarette found on

       the ground, the cash and key cards found on Bracewell’s person, and

       Bracewell’s statements, but erred in suppressing the gun, methamphetamine,

       and scales found in the stairwell, we affirm in part, reverse in part, and remand

       for further proceedings.


[36]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A05-1702-CR-356 | August 14, 2017   Page 18 of 18
