                                                                               FILED
                                                                          May 10 2018, 9:02 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.                                       Mark J. Dove
Attorney General of Indiana                               R. Patrick Magrath
                                                          Alcorn Sage Schwartz &
Justin F. Roebel
                                                          Magrath, LLP
Deputy Attorney General
                                                          Madison, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                         May 10, 2018
Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                          40A01-1706-CR-1328
        v.                                                Appeal from the Jennings Circuit
                                                          Court
Larry O. Janes,                                           The Honorable Jon W. Webster,
Appellee-Defendant.                                       Judge
                                                          Trial Court Cause No.
                                                          40C01-1605-F2-5



Bailey, Judge.




Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018                            Page 1 of 10
[1]   The State appeals the trial court’s suppression of evidence found during a

      search of Larry Janes’s vehicle, arguing that the trial court erred by finding that

      because a Pirtle1 warning was not given, suppression was warranted. Finding

      no error, we affirm.


                                                            Facts   2




[2]   In the early morning of May 17, 2016, Janes and a passenger drove past

      Jennings County Sheriff’s Department Reserve Deputy Jason Littrell on a rural

      road. Deputy Littrell observed that Janes failed to dim his headlights. Deputy

      Littrell followed Janes’s vehicle for a minute so he could stop Janes in a well-lit

      area; during this time, the deputy observed Janes slow down so that he was

      driving under the posted speed limit, turn on his turn signal well before an

      intersection, stop well in front of the white line at the intersection, make a wide

      turn at the intersection, and drive on the emergency portion of the road.


[3]   Once Deputy Littrell stopped the vehicle and approached Janes, he advised

      Janes why he stopped him, and Janes admitted that he did not dim his

      headlights for approaching traffic. Deputy Littrell observed that Janes was

      nervous and would not make eye contact with him, and when the deputy

      requested his driver’s license, Janes initially handed him a bank card. This



      1
          Pirtle v. State, 263 Ind. 16, 323 N.E.2d 634 (1975).
      2
       We heard oral argument at Lawrenceburg High School on April 13, 2018. We thank the school’s
      administration, faculty, and students, and the Dearborn County Bar Association, for their gracious
      hospitality. We also thank counsel for their informative and engaging oral advocacy and subsequent
      discussion with the students.

      Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018                       Page 2 of 10
      behavior, coupled with what the deputy had observed while following Janes,

      made Deputy Littrell suspect that Janes was impaired. He then requested

      additional officers to assist at the scene.


[4]   Deputy Heilers and Sergeant Ritchie arrived shortly thereafter. Sergeant

      Ritchie testified that when he arrived, he “mentioned that [he] heard a lot of

      information about Larry Janes being involved in the drug world” or “with

      methamphetamine.” Tr. Vol. II p. 78. After Deputy Littrell ran Janes’s license,

      which came back clean, he returned to Janes’s vehicle on the driver’s side,

      while Deputy Heilers approached the vehicle on the passenger’s side. Deputy

      Littrell gave Janes a verbal warning for failure to dim his headlights. He then

      turned and stepped toward his patrol car. Deputy Littrell testified that he then

      “went back to the driver’s door and asked the driver if he would give consent to

      search the vehicle due to us trying to clean the streets up and recover stolen

      items and such.” Id. at 13. Deputy Littrell testified that Janes consented and

      then “I advised him if he agreed to giving us consent to search the vehicle, I

      asked him and the passenger to open the door and step out and walk to the rear

      of his vehicle and the front of mine and stand with Sargent [sic] Ritchie.” Id.

      Janes and the passenger complied.


[5]   Deputy Littrell’s body camera recorded their exchange:


              Deputy Littrell: All right, Larry, here’s your ID back. Like you
              said, you know why I pulled you over, right?


              Janes: Yeah, it won’t happen again (inaudible) one thing
              (inaudible) hard to see anyway.
      Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018    Page 3 of 10
        Deputy Littrell: All right, you had anything to drink tonight,
        anything like that?


        Janes: No sir.


        Deputy Littrell: No.


        Janes: No.


        Deputy Littrell: Okay.


        Janes: None.


        Deputy Littrell: All right, well, I mean nothing illegal in the car?


        Janes: Nothing.


        Deputy Littrell: No.


        Janes: Nope.


        Deputy Littrell: Would you give us a chance to look in there?


        Janes: Yes, you can look.


        Deputy Littrell: Okay, well, if you’ll give us a consent to look, if
        you guys want to come out here for us, we’ll take a look real
        quick. No guns, knives, weapons, nothing like that?


Appellant’s Ex. 1 (partially transcribed at tr. vol. II p. 45-46).



Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018        Page 4 of 10
[6]   Deputies Littrell and Heilers then searched the vehicle. Deputy Heilers found a

      methamphetamine pipe underneath the passenger seat. At some point during

      the stop, Janes told Deputy Littrell several times that the vehicle was not his.

      After the deputies found the pipe, they handcuffed Janes and the passenger.

      The deputies also discovered methamphetamine in the vehicle’s trunk and the

      passenger’s purse.


[7]   On May 26, 2016, the State charged Janes with Level 2 felony dealing in

      methamphetamine, Level 3 felony possession of methamphetamine, and Level

      4 felony unlawful possession of a firearm by a serious violent felon. On

      December 13, 2016, Janes filed a motion to suppress all the evidence seized

      during the vehicle search, alleging that the vehicle search violated the federal

      and Indiana constitutions because no exception to the warrant requirement

      applied to the stop.


[8]   A suppression hearing took place on March 8 and May 9, 2017. Janes testified

      that the deputy had asked whether “they could look in” his vehicle, and that

      Janes had replied affirmatively, thinking that the deputy had wanted to “shine

      his flashlight through the window into the back seat and floorboards while we

      was sitting in the car.” Tr. Vol. II p. 61-62. Janes also testified that he had told

      the deputy several times that the vehicle was not his and that he could not give

      him permission to search it. Janes further testified that at no point did any of

      the officers tell him that he was free to go, and that at no point did he feel free

      to leave.



      Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018     Page 5 of 10
[9]   On May 31, 2017, the trial court granted the motion to suppress, making the

      following findings:


              5.) Because Littrell was aware Defendant “may have been
              involved in the drug trade”, and after Littrell returned
              Defendant’s license to him, Littrell then asked Defendant if he
              could “look in there”. Defendant said yes, and Littrell then
              asked Defendant and the passenger to get out of the car. After
              looking inside the vehicle, Heilers found a “methamphetamine
              smoking device” under the passenger seat and upon further
              search, other contraband.


              6.) According to Littrell, Defendant never withdrew his consent
              but he did tell Littrell the vehicle wasn’t his.


              7.) The question in this case requires a primary analysis of
              whether Defendant was or was not in custody at the time he
              allegedly consented to a search of the vehicle, because, whether
              Pirtle is required, depends on this answer.


                                                       ***


              9.) . . . Here, the facts were that three (3) uniformed officers in
              marked cars, with lights flashing, were on the scene of an
              infraction traffic stop, at least one on each side of the vehicle.
              Officer Littrell had completed the reason for his stop, but based
              on his own knowledge of Defendant’s reputation, decided to
              extend his investigation. The Court can only assume what would
              have occurred had Defendant driven off. Based on the totality of
              the circumstances, the Court finds Defendant was in custody
              when Littrell asked if he could “look in there”. Therefore, Pirtle
              warnings were required and were not given, and the fruits of the
              search of the vehicle are suppressed.



      Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018    Page 6 of 10
       Appealed Order p. 2-3 (footnote omitted). On June 28, 2017, the State filed a

       motion to dismiss the charges based on the trial court’s order, and on July 6,

       2017, the trial court granted that motion. The State now appeals the trial

       court’s order suppressing the evidence.


                                     Discussion and Decision
[10]   The State argues that the trial court erred by suppressing evidence because

       Janes was not in custody for purposes of Pirtle and was not entitled to a Pirtle

       warning before a consensual search during a traffic stop.3


[11]   When reviewing a trial court’s ruling on a motion to suppress evidence, we

       must determine whether substantial evidence of probative value supports the

       trial court’s decision. State v. Seidl, 939 N.E.2d 679, 683 (Ind. Ct. App. 2010).

       Where a trial court grants a motion to suppress, the State appeals from a

       negative judgment and must show that the trial court’s grant of the motion was

       contrary to law. Id. We 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. We will not reweigh the evidence nor judge

       witnesses’ credibility, and will consider only the evidence most favorable to the

       trial court’s ruling. Id.




       3
        Although Janes moved to suppress the evidence under the federal and Indiana constitutions, the trial court
       granted Janes’s motion based on the Indiana constitution. Therefore, we will discuss the issue only under
       Indiana law.

       Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018                         Page 7 of 10
[12]   Pursuant to the Indiana constitution, our Supreme Court held that “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.” Pirtle v. State, 263 Ind. 16, 29, 323 N.E.2d 634, 640 (1975).

       When a person does not receive this warning, “whether the evidence must be

       suppressed turns on whether the defendant was in custody at the time consent

       was requested.” Meredith v. State, 906 N.E.2d 867, 873 (Ind. 2009). In

       distinguishing between custodial encounters, where Pirtle applies, and non-

       custodial encounters, where it does not, 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. Id. “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.’” Id. (quoting Jones v. State, 655 N.E.2d 49, 55 (Ind. 1995)).


[13]   Courts have considered a variety of factors in determining whether an

       encounter is custodial. One such factor is whether a reasonable person in the

       defendant’s position would feel free to leave. Id. The law is clear that in the

       context of a traffic stop a person is, at least temporarily, not free to leave, but

       that does not necessarily mean that a traffic stop is custodial. Id. Indeed, an

       officer making a traffic stop may detain a person upon reasonable suspicion of

       criminal activity and ask questions to verify or disprove his suspicions. Id.

       Ordinarily, such detention is not considered custodial even though the person is

       Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018      Page 8 of 10
       not free to leave. Id. Thus, courts must look to other factors as well to

       determine whether and when a traffic stop transforms into a custodial

       encounter. Other relevant factors include whether the defendant was read his

       Miranda4 rights, handcuffed, restrained in any way, or told that he was a suspect

       in a crime; the vigorousness of 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. Id. at 874.


[14]   Here, the State argues that because Janes was detained for a traffic stop, he was

       not in custody when he consented to the search and a Pirtle warning was not

       required. Viewed most favorably to the trial court’s decision, the record shows

       that three uniformed officers in three separate police cars with flashing lights

       came to a traffic stop on a rural highway in the middle of the night. When

       Deputy Littrell returned Janes’s license to him, he stood on the vehicle’s

       driver’s side, while Deputy Heilers stood on the passenger’s side. In our view, a

       person who is stopped for a minor traffic violation for which there was an

       unusually high number of responding officers and whose vehicle is then

       surrounded by two police officers might reasonably feel that his freedom of

       movement was restrained.




       4
           Miranda v. Arizona, 384 U.S. 436 (1966).


       Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018     Page 9 of 10
[15]   Moreover, the record also shows that after Deputy Littrell completed the traffic

       stop by giving Janes a verbal warning for failure to dim his headlights, he then

       asked Janes whether he had had anything to drink that night, whether there was

       anything illegal in the vehicle, and whether there were any guns, knives, or

       other weapons in the vehicle. A reasonable person, asked incriminating

       questions about alcohol consumption, illegal items, and weapons—questions

       unrelated to the reason for the traffic stop—could reasonably conclude that he

       was not free to deny police permission to search his car. See Sellmer v. State, 842

       N.E.2d 358, 364 (Ind. 2006) (noting that a reasonable person, asked repeatedly

       about whether there were drugs in the vehicle, “might well conclude either that

       he or she was under arrest or, at least, that she was not free to deny police

       permission to search her car”).


[16]   The trial court, which was in the best position to weigh the evidence and judge

       witnesses’ credibility, found that Janes was in custody when he was asked to

       consent to a search of his vehicle. We agree that, considering the totality of the

       circumstances, a reasonable person would not feel free to leave this scene. As a

       result, Janes was entitled to a Pirtle warning, which he did not receive.

       Accordingly, the trial court did not err by suppressing the evidence found in the

       search.


[17]   The judgment of the trial court is affirmed.


       May, J., and Altice, J., concur.



       Court of Appeals of Indiana | Opinion 40A01-1706-CR-1328 | May 10, 2018     Page 10 of 10
