                                                                                  FILED
                                                                              Jan 24 2018, 5:38 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Chris M. Teagle                                            Curtis T. Hill, Jr.
Muncie, Indiana                                            Attorney General of Indiana
                                                           Ellen H. Meilaender
                                                           Supervising Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

David Wright,                                             January 24, 2018

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          05A02-1610-CR-2397
        v.                                                Appeal from the Blackford Circuit
                                                          Court.
                                                          The Honorable Dean A. Young,
State of Indiana,                                         Judge.
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          05C01-1601-F1-36




Darden, Senior Judge




Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018                           Page 1 of 11
                                          Statement of the Case
[1]   David Wright appeals his convictions of four counts of child molestation
                                                                                          1
      committed by a person at least twenty-one years of age, all Level 1 felonies.

      Concluding that the trial court erred in admitting evidence, we reverse and

      remand.


                                                      Issue
[2]   Wright raises three issues, one of which is dispositive: Whether the trial court

      committed error in admitting into evidence at trial Wright’s incriminating

      statements to police officers.


                                   Facts and Procedural History
[3]   Wright lived with a married couple, T.S. and E.S., and their five children, in

      Hartford City, Indiana. They shared a large apartment that was part of an older

      house on East Water Street that had been subdivided into separate apartments.

      The property owner lived in an upstairs apartment, which had an address of 220

      and a half East Water Street. T.S. and E.S., and their children, lived on the

      main floor of the house, with Wright living in the basement, in an apartment

      with the address of 220 East Water Street.




      1
          Ind. Code § 35-42-4-3 (2015).



      Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 2 of 11
[4]   On Friday, January 22, 2016, Special Agent Jeffrey Robertson of the Federal

      Bureau of Investigation arrived at the house with several other armed federal

      and state law enforcement officers. He had a federally-issued warrant from

      Washington, D.C., to search for child pornography on computers at 220 and a

      half East Water Street in Hartford City, Indiana. The resident of that

      apartment paid for internet service for both apartments. Robertson only learned

      upon arriving at the house that it had been subdivided into apartments. At that

      point, he decided to improvise rather than seek a second warrant for the address

      of 220 East Water Street.


[5]   When Robertson and other agents entered T.S. and E.S.’s apartment at 220

      East Water Street, he gathered everyone together, including Wright, explained

      that he was there to investigate an allegation of child pornography, and stated

      that he wanted to scan their electronic devices for child pornography.


[6]   Robertson failed to advise the residents of the apartment that they did not have

      to give their consent. Further, he had written consent forms in his vehicle but,

      for reasons unknown, he did not use them. Instead, Robertson told them that

      they had two options: he could freeze the scene by removing the residents from

      their home (on a cold winter day) while he sought out a prosecutor for a second

      search warrant for their home and computers (without setting/establishing a

      reasonable time line as to when they could expect to be able to return home); or

      he could take the equipment and quickly return it as soon as possible. Wright

      and the others turned over their computers.



      Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 3 of 11
[7]   Robertson took the computers to a separate location, where he used a scanning

      program called OS Triage to detect whether the computers had been used to

      search for and download child pornography. Specifically, the program scans all

      images on a computer for digital markers, or hashtags, that indicate whether an

      image contains child pornography. The OS Triage program merely indicated

      that at least one image containing child pornography was present on one of

      Wright’s computers. Robertson did not view any images or files on the

      computers or subject them to further forensic analysis.


[8]   Approximately three days later, on Monday, January 25, 2016, Robertson went

      back to the apartment. He returned all computers in the presence of everyone,

      with the exception of Wright’s two computers. When Wright inquired about

      his computers, Robertson stated he would like to discuss the matter with him

      and asked him if he wanted to talk there or in a different location. Wright

      agreed to talk outside. It was a very cold day, and the parties proceeded to

      Robertson’s vehicle, where it was warm inside.


[9]   As they were walking to the vehicle, Robertson informed Wright he was neither

      in custody nor under arrest. Robertson further stated to Wright that he was not

      obligated to talk with him and was free to leave at any time. Upon getting into

      the vehicle, Robertson sat in the driver’s seat, Wright sat in the front passenger

      seat, and another officer sat in the back seat. Again, Robertson informed

      Wright that the car’s doors were unlocked and reminded him that he was free to

      leave at any time. Wright stated he understood; however, Roberson did not

      Mirandize Wright.

      Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 4 of 11
[10]   During their discussion, Robertson stated that he had discovered that one of

       Wright’s computers had been used to access child pornography websites

       through a router that facilitated anonymous transactions. He further explained

       that per his standard procedure, he would customarily conduct a forensic

       interview with children found in a location where child pornography had been

       discovered to ensure that no inappropriate behavior had occurred. As of that

       date, Wright’s computers had not been forensically searched to verify OS

       Triage’s preliminary results. Robertson then asked Wright if he had any

       information about contact with any of the children. At that point, Wright

       stated he had had some kind of contact with two of T.S. and E.S.’s children.

       Robertson immediately stopped the conversation and contacted the Hartford

       City Police Department. He ultimately spoke with Lieutenant Detective Cody

       Crouse. Robertson took Wright into custody at Crouse’s request, handcuffed

       him, and transported him to the police station. Robertson did not question

       Wright any further during the drive to the police station.


[11]   Crouse met them at the police station. Robertson put Wright in an interview

       room and removed his handcuffs. Next, Robertson spoke with Crouse outside

       of Wright’s presence, explaining his investigation and what Wright had

       disclosed to him. Crouse then interviewed Wright in Robertson’s presence.

       Prior to the start of the interview, Crouse Mirandized Wright using an advice of

       rights form, which Wright signed.


[12]   During the interview, which was recorded, Wright told Crouse and Robertson

       that within the past year, he had performed numerous sexual acts with W.S.,

       Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 5 of 11
       who was now ten years old; and, some sexual acts with F.S., who was now four

       years old, within the past six months. Wright also told the officers that W.S.

       had observed several of the acts of molestation committed on F.S. by Wright.

       He admitted that he had recorded several sex acts with each of the children and

       saved the recordings on his computer. Wright further stated he had told W.S.

       not to tell anyone about the molestations, explaining to W.S. that if he told

       anyone, then Wright would go to prison for the rest of his life.


[13]   The State charged Wright with four counts of child molestation, all as Level 1

       felonies. Counts I and II pertained to Wright’s molestations of W.S. and

       Counts III and IV pertained to Wright’s molestations of F.S.


[14]   Subsequently, Wright filed a motion to suppress his statements, asking the court

       to deem inadmissible all evidence obtained from the January 22, 2016 search of

       the apartment, including the contents of his computers. Wright further argued

       his January 25, 2016 statements to Robertson and Crouse, and any evidence

       obtained as a result of those statements, should also be suppressed because they

       were derived from the illegal search and seizure that had taken place on

       January 22, 2016. The State filed a response in opposition to Wright’s motion,

       and the court held an evidentiary hearing, during which Agent Robertson

       testified as to his January 25, 2016 questioning of Wright.


[15]   Later, the trial court issued an order granting Wright’s motion in part and

       denying it in part, ruling as follows: “Comes now the Court and grants

       defendant’s Motion to Suppress all evidence obtained as a result of a search of


       Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 6 of 11
       the defendant’s premises on January 22, 2016, and denies the defendant’s

       request to suppress statements against interest made on January 25, 2016.”

       Appellant’s App. Vol. 2, p. 46. The trial court determined that the search of

       Wright’s computers violated both his federal and state constitutionally

       protected rights against unreasonable search and seizure. Apparently, the trial

       court found that the warrant was defective as applied to Wright, and Wright’s

       consent to the search was coerced and therefore found to be invalid. The trial

       court further determined, however, that on January 25, 2016, Wright’s

       statements to the police were obtained independently of the search of the

       computers and, therefore, were admissible into evidence.


[16]   Wright waived his right to a jury trial and the case was tried to the bench. Both

       parties moved the court to take judicial notice of the evidence that was admitted

       at the hearing on the motion to suppress. The court granted their joint motion.

       In addition, the recorded police interview was admitted into evidence over

       Wright’s objection. Further, W.S. testified and described to the trial court the

       acts of molestation Wright had committed against him and his sister F.S.


[17]   The trial court found Wright guilty as charged and imposed a sentence. This

       appeal followed.


                                     Discussion and Decision
[18]   Wright argues the trial court erred by denying his motion to suppress all of the

       evidence in its entirety, including his January 25, 2016 statements to police and

       all subsequently-derived evidence presented at trial. Because he appeals after a

       Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 7 of 11
       completed trial, the issue is more properly framed as whether the trial court

       erred in admitting the statements into evidence at trial. Atkinson v. State, 992

       N.E.2d 899, 901 (Ind. Ct. App. 2013), trans. denied. In general, we review a trial

       court’s decision on evidentiary issues for an abuse of discretion. Id. We reverse

       only where the decision is clearly against the logic and effect of the facts and

       circumstances. Jackson v. State, 996 N.E.2d 378, 382-83 (Ind. Ct. App. 2013),

       trans. denied.


[19]   Wright further argues the admission of his statements to Robertson and Crouse

       violated his rights pursuant to the Fourth Amendment to the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution because they

       were obtained through the unconstitutional and illegal search and seizure of his

       computers. He provides arguments and authority only as to the Indiana

       Constitution, so we deem the Fourth Amendment claim under the United

       States Constitution to be waived. See Russell v. State, 993 N.E.2d 1176, 1179

       (Ind. Ct. App. 2013) (failure to provide separate analysis for each constitutional

       claim results in waiver).


[20]   Article 1, Section 11 of the Indiana Constitution provides:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable search or seizure, shall
               not be violated; and no warrant shall issue, but upon probable
               cause, supported by oath or affirmation, and particularly
               describing the place to be searched, and the person or thing to be
               seized.




       Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 8 of 11
[21]   The language of Section 11 tracks the Fourth Amendment of the United States

       Constitution verbatim, but we analyze claims under Section 11 according to a

       different standard: that is, whether the actions of the government were

       reasonable under the totality of the circumstances. Shotts v. State, 925 N.E.2d

       719, 726 (Ind. 2010) (quotation omitted). In some circumstances, Section 11

       confers greater protections to individual rights than the Fourth Amendment. Id.


[22]   The trial court determined that the federal authorities’ search and seizure of

       Wright’s computers violated Section 11, and the State does not dispute that

       conclusion. The State instead argues that Wright’s statements to Agent

       Robertson and Lieutenant Crouse are nonetheless admissible because the

       statements “were sufficiently attenuated from the illegal seizure” of Wright’s

       computers. Appellee’s Br. p. 11.


[23]   In Fourth Amendment jurisprudence, the exclusionary rule bars 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). The

       derivative evidence is known as the “fruit of the poisonous tree.” Id. Indiana

       courts have applied the fruit of the poisonous tree doctrine to search and seizure

       claims under Article I, section 11 of the Indiana Constitution. See Gyamfi v.

       State, 15 N.E.3d 1131, 1136 (Ind. Ct. App. 2014).


[24]   Under federal jurisprudence, if the defendant proves the evidence was derived

       from an unconstitutional search, then the State can claim that the evidence may


       Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 9 of 11
       nonetheless be admitted based on an exception to the fruit of the poisonous tree

       doctrine. Id. Established federal exceptions include: (1) proving the derivative

       evidence has an independent source or basis; (2) proving the connection

       between the unconstitutional conduct and the discovery of the derivative

       evidence was so attenuated as to dissipate any taint; and (3) proving the

       derivative evidence would have inevitably been properly obtained. See Herald v.

       State, 511 N.E.2d 5, 8 (Ind. Ct. App. 1987) (quotations omitted), trans. denied.


[25]   Indiana’s constitutional jurisprudence diverges from federal jurisprudence as to

       exceptions to the fruit of the poisonous tree doctrine. No Indiana appellate

       court has determined that the attenuation doctrine and/or exception applies to

       claims presented under Article 1, section 11 of the Indiana Constitution.

       Indeed, the Court has held to the contrary. See Trotter v. State, 933 N.E.2d 572,

       582-83 (Ind. Ct. App. 2010) (attenuation doctrine inapplicable under Indiana

       Constitution); see also Gyamfi, 15 N.E.3d at 1138 (no inevitable discovery

       exception); Ammons v. State, 770 N.E.2d 927, 935 (Ind. Ct. App. 2002), trans.

       denied (same); cf. State v. Foster, 950 N.E.2d 760, 763 (Ind. Ct. App. 2011)

       (considering the attenuation doctrine in the context of a search and seizure

       claim under the Indiana Constitution and concluding it did not apply to the

       facts of that case), trans. denied; Webster v. State, 908 N.E.2d 289, 293 (Ind. Ct.

       App. 2009) (same), trans. denied; Turner v. State, 862 N.E.2d 695, 701 (Ind. Ct.

       App. 2007) (same).


[26]   In the current case, there is no dispute that Wright’s incriminating statements to

       the officers on January 25, 2016, about touching the children directly resulted

       Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 10 of 11
       from or derived from the unconstitutional search and seizure of Wright’s

       computers. The statements were thus the fruit of the poisonous tree. Having

       determined pursuant to the holding in Trotter that the attenuation doctrine does

       not apply to search and seizure claims under the Indiana Constitution, we must

       reject the State’s argument that Wright’s statements made during police

       questioning in Robertson’s vehicle and at the police station were admissible.

       We conclude the trial court erred in admitting Wright’s incriminating

       statements into evidence. As a result, we reverse his convictions and remand

       for further proceedings not inconsistent with this opinion. Both parties

       challenge the appropriateness of Wright’s sentence, but it is unnecessary for us

       to address that issue. In addition, we express no opinion on the admissibility of

       W.S.’s testimony because that issue is not before us.


                                                 Conclusion
[27]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings not inconsistent with this opinion.


[28]   Reversed and Remanded.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 05A02-1610-CR-2397 | January 24, 2018   Page 11 of 11
