Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                  Sep 25 2012, 8:26 am
court except for the purpose of establishing
the defense of res judicata, collateral                           CLERK
                                                                of the supreme court,
estoppel, or the law of the case.                               court of appeals and
                                                                       tax court




  ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

  ELLEN F. HURLEY                                GREGORY F. ZOELLER
  Marion County Public Defender Agency           Attorney General of Indiana
  Indianapolis, Indiana
                                                 KARL M. SCHARNBERG
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                                 IN THE
                       COURT OF APPEALS OF INDIANA

  M.M.,                                          )
                                                 )
          Appellant-Respondent,                  )
                                                 )
                 vs.                             )        No. 49A05-1203-JV-102
                                                 )
  STATE OF INDIANA,                              )
                                                 )
          Appellee-Petitioner.                   )


                       APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Marilyn A. Moores, Judge
                           The Honorable Scott B. Stowers, Magistrate
                               Cause No. 49D09-1110-JD-2763


                                     September 25, 2012


                  MEMORANDUM DECISION - NOT FOR PUBLICATION


  BRADFORD, Judge
       Appellant-Respondent M.M. appeals from the finding that she committed what

would have been Class A misdemeanor marijuana possession1 if committed by an adult.

M.M. contends that the juvenile court abused its discretion in admitting certain evidence

at her delinquency hearing. We affirm.

                          FACTS AND PROCEDURAL HISTORY

       At approximately 3:15 p.m. on October 18, 2011, Indianapolis Metropolitan Police

Officer Christopher Mills was dispatched to the area of 700 North Grant Avenue on a

report of several persons in a vehicle possibly smoking narcotics. Officer Mills located

the vehicle described in the dispatch, which was parked on the curb facing South, and

parked in front of the vehicle but “offset” to the East, facing North. Tr. p. 32. Officer

Edward Fiscus also arrived in his car, also parking in front of, but offset to, the vehicle.

Neither Officer Mills nor Officer Fiscus had activated his lights or siren, and their cars

were not blocking the vehicle’s path.

       Officers Mills and Fiscus approached the vehicle on foot, Officer Mills on the

driver’s side and Officer Fiscus on the passenger’s. Officer Mills had not drawn his

weapon, and there is no indication that Officer Fiscus had, either. Five individuals were

seated in the vehicle, two black males in the front, and, in the back, A.D. behind the

driver, M.M. in the middle, and T.L. behind the front passenger. Officer Mills detected

the odor of burnt marijuana as he approached the vehicle. Officer Mills “asked if there

was any marijuana inside the vehicle.” Tr. p. 11. T.L. responded that he had marijuana,

so Officer Mills walked around the vehicle, removed T.L., obtained the marijuana that
       1
           Ind. Code § 35-48-4-11 (2011).

                                             2
T.L. produced, handcuffed him, and sat him on the curb. A.D. then said that she too had

marijuana, reached under the seat, and handed some marijuana to officer Mills. As A.D.

did so, M.M. stated that the marijuana was hers also and that she and A.D. had purchased

it together.   A.D. and M.M. were asked to step from the vehicle and were then

handcuffed and arrested for marijuana possession.         A female police officer was

summoned to search A.D. and M.M. and found a small bag of marijuana in M.M.’s

brassiere.

       On October 18, 2011, M.M. was alleged to be a delinquent child for committing

what would be Class A misdemeanor marijuana possession if committed by an adult. On

January 12, 2012, after a hearing, the juvenile court entered a true finding. On February

8, 2012, the juvenile court placed M.M. on probation until August 8, 2012, and ordered

her to complete thirty hours of community service.

                            DISCUSSION AND DECISION

 Whether the Juvenile Court Abused its Discretion in Admitting Certain Evidence

       M.M. frames her appeal as a challenge to the denial of motions to suppress

evidence. As M.M. herself notes, however, because a hearing has been held, the issue is

more appropriately addressed as a challenge to the admission of evidence. We will

reverse a juvenile court’s ruling on the admissibility of evidence only when it abused its

discretion. Kelley v. State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005). An abuse of

discretion may occur if a decision is clearly against the logic and effect of the facts and

circumstances before the court.     Id.   Regarding the “abuse of discretion” standard

generally, the Indiana Supreme Court has observed, “to the extent a ruling is based on an

                                            3
error of law or is not supported by the evidence it is reversible, and the [juvenile] court

has no discretion to reach the wrong result.” Pruitt v. State, 834 N.E.2d 90, 104 (Ind.

2005).

         M.M. contends that that her statements to Officer Mills should not have been

admitted because police had not advised her of her rights, provided her with an

opportunity for meaningful consultation, or obtained a waiver of rights.                 M.M.

additionally contends that the marijuana found in her brassiere should not have been

admitted because it was only found because of her statements.

         Indiana Code section 31-32-5-1 provides that

         Any rights guaranteed to a child under the Constitution of the United
         States, the Constitution of the State of Indiana, or any other law may be
         waived only:
            (1) by counsel retained or appointed to represent the child if the child
            knowingly and voluntarily joins with the waiver;
            (2) by the child’s custodial parent, guardian, custodian, or guardian ad
            litem if:
                (A) that person knowingly and voluntarily waives the right;
                (B) that person has no interest adverse to the child;
                (C) meaningful consultation has occurred between that person and
                the child; and
                (D) the child knowingly and voluntarily joins with the waiver; or
            (3) by the child, without the presence of a custodial parent, guardian, or
            guardian ad litem, if:
                (A) the child knowingly and voluntarily consents to the waiver; and
                (B) the child has been emancipated under IC 31-34-20-6 or IC 31-
                37-19-27, by virtue of having married, or in accordance with the
                laws of another state or jurisdiction.

         “However, as a general rule, when a juvenile who is not in custody gives a

statement to police, neither the safeguards of Miranda warnings nor the juvenile waiver

statute is implicated.” S.D. v. State, 937 N.E.2d 425, 430 (Ind. Ct. App. 2010), trans.


                                              4
denied. Consequently, if M.M. was not in custody when she made her incriminating

statements, her arguments regarding the juvenile waiver statute are fatally undercut.

              For an interrogation to be custodial in nature, one does not
       necessarily have to be under arrest. C.L.M. v. State, 874 N.E.2d 386, 390
       (Ind. Ct. App. 2007). To be custodial in the non-arrest context, the
       interrogation must commence after the person’s freedom of action has been
       deprived in any significant way. Id.; see also Luna v. State, 788 N.E.2d
       832, 833 (Ind. 2003) (“When determining whether a person was in custody
       or deprived of his freedom, the ultimate inquiry is simply whether there is a
       formal arrest or restraint on freedom of movement of the degree associated
       with a formal arrest.” (quotations omitted)). This is determined by
       examining whether a reasonable person in similar circumstances would
       believe he is not free to leave. Luna, 788 N.E.2d at 833.

Id.

       M.M. has failed to establish that she was in custody when Officer Mills asked if

there was any marijuana in the vehicle. At a little after three in the afternoon, two

officers, neither of whom had driven to the scene with lights or siren on, approached the

vehicle in which M.M. sat. The vehicle was not blocked in and neither officer apparently

had drawn a weapon. Upon detecting the odor of burnt marijuana, Officer Mills asked if

there was any marijuana in the car. There is no indication that at any point either officer

said or otherwise indicated that response to the question was mandatory or that the

vehicle’s occupants were not free to go about their business. The Indiana Supreme Court

has held that “a police officer who neither explicitly nor implicitly communicates that a

person is not free to go about his or her business may ask questions of the person to

investigate allegations of criminal activity without implicating the Fourth Amendment[.]”

Clarke v. State, 868 N.E.2d 1114, 1116 (Ind. 2007).

       Clarke, in fact, is a case in which what can only be described as more coercive

                                            5
police behavior was nonetheless held not to result in custody. In Clarke, an Indianapolis

police officer responded to a report of drugs being sold out of a car, arriving at the scene

with her lights activated and her spotlight trained upon the two individuals inside the car

in question.   Id.   The officer obtained information from Clarke and the passenger,

checked both occupants for warrants, and returned the information. Id. at 1117. The

officer asked if there was anything illegal in the car, and Clarke replied that there was

not. Id. The officer asked Clarke ‘if he cared if [she] searched his car,’ and Clarke

responded, ‘I don’t have anything in the car.’” Id. “According to [the officer], she then

asked Clarke ‘Do you mind if I search it?’ and Clarke responded, ‘No,’ and ‘voluntarily

opened his door and got out of the car on his own.’” Id. As the search was conducted,

Clarke and the passenger were watched by another police officer on the sidewalk. Id.

       The Indiana Supreme Court held that Clarke and the passenger were not in

custody for purposes of the Fourth Amendment or Article I, section 11 of the Indiana

Constitution. Id. at 1119, 1120-21. In so doing, the Clarke Court noted that “[t]here is

no evidence that [the officer] conveyed [the] message [that compliance with her requests

was required]” and that “[h]er mere presence as a uniformed law enforcement officer

does not convert her questions into commands.” Id. at 1119 (citing Fla. v. Bostick, 501

U.S. 429, 434-35 (1991)). Here, in addition to neither officer indicating that responding

to Officer Hill’s question was mandatory, the question was only asked once and neither

officer had activated his lights or spotlight. As in Clarke, the mere presence of Officers

Hill and Fiscus as uniformed officers did not convert Officer Hill’s question into a

command. M.M. has failed to establish that she was in custody, and the juvenile waiver

                                             6
statute is therefore not implicated. Consequently, M.M. has failed to establish that the

trial court abused its discretion in admitting her statements and the marijuana found on

her person.

      We affirm the judgment of the juvenile court.

ROBB, C.J., and BAKER, J., concur.




                                           7
