      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                        Feb 13 2015, 7:52 am
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Jacob Wahl                                               Gregory F. Zoeller
      Ripstra Law Office                                       Attorney General of Indiana
      Jasper, Indiana
                                                               Karl M. Scharnberg
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Dallarius T. Jackson,                                    February 13, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               82A04-1406-CR-281
              v.                                               Appeal from the Vanderburgh
                                                               Circuit Court, The Honorable Kelli
                                                               E. Fink, Judge
      State of Indiana,                                        Cause No. 82C01-1301-FC-110
      Appellee-Plaintiff




      Najam, Judge.


                                         Statement of the Case
[1]   Dallarius T. Jackson appeals the trial court’s revocation of his probation.

      Jackson raises a single issue for our review, namely, whether the trial court

      abused its discretion when it admitted statements made by Jackson to police
      Court of Appeals of Indiana | Memorandum Decision 82A04-1406-CR-281 | February 13, 2015   Page 1 of 6
      officers before Jackson had been read his rights under Miranda v. Arizona, 384

      U.S. 436 (1966). We affirm the trial court’s revocation of Jackson’s probation.


                                 Facts and Procedural History
[2]   On January 23, 2014, Jackson pleaded guilty to criminal recklessness, as a Class

      D felony. The court sentenced Jackson to eighteen months probation, the terms

      of which required Jackson, among other things, to follow the law and not to

      possess a firearm.


[3]   The day after he was sentenced to probation, Jackson rode in the front

      passenger seat of a vehicle that was subjected to a traffic stop. Smelling

      marijuana inside the vehicle, the officer who had initiated the traffic stop asked

      Jackson and the driver to stand with other officers by the officers’ vehicles while

      he searched the car. During the search, the officer discovered a loaded firearm

      under the front passenger seat and a bag of marijuana between the front

      passenger seat and the front passenger door. Without prompting, Jackson

      stated that the firearm and marijuana were his.


[4]   The State filed a petition to revoke Jackson’s probation. At an ensuing

      evidentiary hearing, Jackson moved to have his statements made during (and

      after) the traffic stop suppressed. The trial court admitted all statements made

      by Jackson that were not in response to an actual question by an officer. The

      court then revoked Jackson’s probation. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 82A04-1406-CR-281 | February 13, 2015   Page 2 of 6
                                     Discussion and Decision
[5]   Jackson asserts that the trial court abused its discretion when it admitted any

      statements he made following the traffic stop because Jackson never received

      his Miranda warnings. Jackson further argues that he was in police custody

      during the search of the vehicle and that the officers at that scene induced him

      into making his incriminating statements.


[6]   As our supreme court has explained:


              Probation is a matter of grace left to trial court discretion, not a
              right to which a criminal defendant is entitled. The trial court
              determines the conditions of probation and may revoke
              probation if the conditions are violated. Once a trial court has
              exercised its grace by ordering probation rather than
              incarceration, the judge should have considerable leeway in
              deciding how to proceed. If this discretion were not afforded to
              trial courts and sentences were scrutinized too severely on
              appeal, trial judges might be less inclined to order probation to
              future defendants. Accordingly, a trial court’s sentencing
              decisions for probation violations are reviewable using the abuse
              of discretion standard. An abuse of discretion occurs where the
              decision is clearly against the logic and effect of the facts and
              circumstances.


      Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (citations omitted).


[7]   Underlying Jackson’s argument on appeal is his assumption that Miranda

      applies to civil probation revocation proceedings. While Jackson fails to offer

      any authority on this issue in his brief to this court, nonetheless our courts have




      Court of Appeals of Indiana | Memorandum Decision 82A04-1406-CR-281 | February 13, 2015   Page 3 of 6
made clear that Miranda does not apply to probation revocation proceedings.

As we have explained:

        The protection against self-incrimination found in the Fifth
        Amendment, by its very terms, applies only to “criminal case[s].”
        U.S. Const. amend. V. As our courts have consistently held, a
        probation revocation hearing is in the nature of a civil action and
        is not to be equated with an adversarial criminal proceeding.
        Cox[ v. State], 706 N.E.2d [547,] 550 [(Ind. 1999)]; Isaac v. State,
        605 N.E.2d 144, 147 (Ind. 1992), cert. denied 508 U.S. 922, 113 S.
        Ct. 2373, 124 L. Ed. 2d 278 (1993). As such, a probationer who
        is faced with a petition to revoke his probation, although he must
        be given “written notice of the claimed violations, disclosure of
        the evidence against him, an opportunity to be heard and present
        evidence, the right to confront and cross-examine adverse
        witnesses, and a neutral and detached hearing body,” is not
        entitled to the full panoply of rights that he enjoyed prior to his
        conviction. Isaac, 605 N.E.2d at 148 (Ind.1992); see also Ind.
        Code § 35-38-2-3. The reason behind this is simple: a
        probationer, who has already been convicted and had his
        sentence imposed, differs substantially from those individuals
        who have not yet been tried and convicted of those crimes that
        they are suspected of having committed. Unlike the latter, a
        probationer’s liberty is not enjoyed as a matter of right, but is
        dependent upon the trial court’s discretion in granting probation.
        See Isaac, 605 N.E.2d at 146 (noting that there is no right to
        probation and that the decision whether to grant probation is a
        matter within the discretion of the trial court). Once granted, a
        probationer is entitled to retain his liberty only so long as he
        substantially abides by the conditions of his probation. Rivera v.
        State, 667 N.E.2d 764, 766 (Ind. Ct. App. 1996), trans. denied.
        Such restrictions are designed to ensure that the probation serves
        as a period of genuine rehabilitation and that the community is
        not harmed by a probationer being at large. Id.



Court of Appeals of Indiana | Memorandum Decision 82A04-1406-CR-281 | February 13, 2015   Page 4 of 6
                                                     ***


              Therefore, we hold that [the probationer’s] statements obtained
              in violation of Miranda were properly admitted at his probation
              revocation proceeding.


      Grubb v. State, 734 N.E.2d 589, 591-93 (Ind. Ct. App. 2000) (alterations

      original), trans. denied. Accordingly, Jackson cannot demonstrate that the trial

      court abused its discretion when it did not apply Miranda to exclude any

      statements that might have been excluded under Miranda in a criminal

      proceeding.


[8]   Moreover, even if Miranda did apply in civil probation revocation proceedings,

      it would not apply here. In Miranda, the Supreme Court held that “the

      prosecution may not use statements, whether exculpatory or inculpatory,

      stemming from custodial interrogation of the defendant unless it demonstrates

      the use of procedural safeguards effective to secure the privilege against self-

      incrimination.” Miranda, 384 U.S. at 444. These procedural safeguards include

      an advisement to the accused the he has the right to remain silent, that anything

      said can be used against him, that he has the right to an attorney, and that one

      will be appointed if he cannot afford one. Id. at 479. The Miranda warnings are

      required only where a suspect in custody is subjected to interrogation. Rhode

      Island v. Innis, 446 U.S. 291, 300 (1980); White v. State, 772 N.E.2d 408, 412

      (Ind. 2002).




      Court of Appeals of Indiana | Memorandum Decision 82A04-1406-CR-281 | February 13, 2015   Page 5 of 6
[9]    Assuming for the sake of argument that Jackson was in custody at the time he

       made his incriminating statements, the question then becomes whether his

       statements were in response to an official interrogation. E.g., McClure v. State,

       803 N.E.2d 210, 213 (Ind. Ct. App. 2004). Under Miranda, “interrogation”

       includes express questioning and words or actions on the part of the police that

       the police know are reasonably likely to elicit an incriminating response from

       the suspect. Innis, 446 U.S. at 301. Volunteered statements do not amount to

       an interrogation. White, 772 N.E.2d at 412; Hopkins v. State, 582 N.E.2d 345,

       348 (Ind. 1991).


[10]   Here, Jackson voluntarily blurted out that the firearm and marijuana belonged

       to him. Jackson argues that the officers asked an “implied question” when they

       placed the discovered firearm on top of the vehicle. Appellant’s Br. at 9. But

       placing a discovered firearm on the roof of the vehicle in which it was

       discovered is not “reasonably likely to elicit an incriminating response from the

       suspect.” Innis, 446 U.S. at 301. Jackson’s arguments on appeal are without

       merit, and, thus, we affirm the trial court’s revocation of his probation.


[11]   Affirmed.


[12]   Mathias, J., and Bradford, J., concur.




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